                                  Illinois Official Reports

                                          Appellate Court



                              People v. Brown, 2014 IL App (2d) 121167




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ERRICK BROWN, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-12-1167


Filed                        May 30, 2014
Rehearing denied             July 17,2 014


Held                         On appeal, defendant’s conviction for first-degree murder was upheld
(Note: This syllabus         over his contention that the trial erred in denying his motion to quash a
constitutes no part of the   search warrant for evidence related to the murder and suppress that
opinion of the court but     evidence, notwithstanding defendant’s argument that the warrant was
has been prepared by the     based on hearsay information provided by his estranged wife’s
Reporter of Decisions        attorney, since the individuals who provided information to the wife’s
for the convenience of       attorney were identified by name, the police officer involved knew the
the reader.)                 attorney, the evidence supported the inference that the officer
                             corroborated the information, the question facing the magistrate
                             presented with the complaint for the warrant was not whether
                             defendant committed a crime, but whether a practical and
                             commonsense assessment of the circumstances showed a fair or
                             reasonable probability that evidence of a crime would be found in a
                             particular place, and in defendant’s case, the motion to quash was
                             properly denied.

Decision Under               Appeal from the Circuit Court of Kane County, No. 09-CF-2922; the
Review                       Hon. Timothy Q. Sheldon, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Thomas A. Lilien and Paul J. Glaser, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                              Bauer and Jay Paul Hoffmann, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.




     Panel                    JUSTICE JORGENSEN delivered the judgment of the court, with
                              opinion.
                              Justices Hutchinson and Hudson concurred in the judgment and
                              opinion.




                                               OPINION

¶1        Defendant, Errick Brown, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2)
       (West 2008)) and sentenced to 55 years’ imprisonment. On appeal, defendant argues that the
       court erred in denying his motion to quash a search warrant and suppress evidence because the
       warrant was not supported by probable cause. For the following reasons, we affirm.

¶2                                           I. BACKGROUND
¶3                                         A. The Search Warrant
¶4         The affidavit for a search warrant was completed by Detective John H. Spencer. Spencer
       attested that he was employed full time with the Carpentersville police department, had been a
       police officer for 16 years, had specialized training in homicide investigations, and had been
       the lead detective in numerous death investigations.
¶5         Spencer attested that, on October 10, 2009, he was notified by dispatch that a person named
       Joseph L. Vonner had been shot at a residence at 126 Amarillo Drive in Carpentersville.
       Vonner was pronounced dead at the hospital. Five days later, on October 15, 2009:
                   “I have [sic] received a call from Tim Mahoney, a well[-]known Carpentersville
               attorney, that Barbara Nichols had contacted his office. He said that Barbara could
               provide more specific detail regarding her estranged husband’s involvement in this
               murder. Her husband[, i.e., defendant,] is the suspect in Joseph L. Vonner’s murder.
               According to Nichols’ attorney, Nichols and [defendant] have been separated for
               several years but are still married. They no longer live together and [defendant] rents a
               room at the 126 Amarillo Drive residence.”
¶6         Spencer next attested that, on October 17, 2009, he again spoke with Mahoney.
       Specifically:
                   “[Mahoney] told me that Barbara is currently in a relationship with Mr. Wilbert R.
               Parker, a client of his. He told me that Barbara and Wilbert were at [the] 126 Amarillo

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                Drive residence with [defendant] for several hours before the shooting. They were
                present when the shooting occurred, as well as after the shooting occurred. They have
                informed Mahoney that [defendant] removed a handgun from the Toyota in the garage
                at 126 Amarillo Drive just hours before the murder was committed. The car is a 1986
                Toyota, grey in color and bearing an Illinois registration of 591 3440 [and] is registered
                to Barbara Nichols and [defendant]. The Toyota has a vehicle identification number of
                JT2SV16H9G0515191 [and] is currently in the garage of 126 Amarillo Drive [and]
                appears not to have been driven in an extended period of time.”
¶7          Handwritten near the end of the affidavit was the sentence, “It should also be noted that
       Mahoney also told me that there has been firearm ammunition in the 1986 Toyota in the past.”
       In conclusion, Spencer attested that he believed that a search of the 1986 Toyota would result
       in the seizure of “listed items.”
¶8          The complaint listed as items that would, if found, be seized: any weapons or ammunition
       that might have been used to shoot or harm the victim; any evidence that might indicate or
       suggest the probable cause of the victim’s death; and any items or indicia of ownership and/or
       residency. The complaint specifically described the house and garage located at 126 Amarillo
       Drive, Carpentersville, and described the vehicle as “a 1986 Toyota 4 door, grey in color, with
       Illinois registration 591 3440. The vehicle registers to Barbara Nichols and [defendant]. The
       vehicle identification number on the vehicle is JT2SV16H9G0515191.”
¶9          On October 17, 2009, Judge Patricia Piper Golden issued the search warrant. The search
       was executed that same day. In the engine compartment of the Toyota, police found a case for
       a Colt .45-caliber handgun, a box containing .45-caliber ammunition (with 20 bullets
       apparently missing), a holster, and an owner’s manual for a .45-caliber handgun. In the car’s
       interior, police found documents addressed to defendant (one from the Illinois State Police,
       denying his request for a firearm owner’s identification (FOID) card). On January 6, 2010,
       defendant turned himself in to the Chicago police department.

¶ 10                           B. Hearing on Motion to Quash and Suppress
¶ 11       In November 2010, defendant moved to quash the warrant and suppress the evidence
       seized from inside the vehicle. On January 5, 2011, the motion was heard before Judge Karen
       Simpson.
¶ 12       Defendant argued that probable cause for the warrant was lacking because the information
       contained in the affidavit attached to the complaint was not based on Spencer’s conversations
       or interviews with Nichols or Parker. Rather, the information forming the basis of the affidavit
       came from Mahoney, an attorney, passing along “barebone” conclusory allegations he learned
       from his clients. Defendant argued that, while an attorney has an ethical obligation to refrain
       from submitting false information to law enforcement, the attorney also has an ethical
       obligation to zealously advocate for his or her client. As such, defendant argued, in contacting
       the police, Mahoney could “filter” the information provided by his clients and present it in a
       manner most advantageous to them. That was particularly at issue, defendant noted, because
       the clients were apparently witnesses to the shooting.
¶ 13       The State responded that the affidavit supporting the warrant needed to establish only that,
       given the totality of the circumstances, it was probable that evidence related to the crime would
       be found in the vehicle. The State noted that there was no need to corroborate the hearsay in the
       statement, because Spencer was not dealing with a confidential informant; rather, each person

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       providing information was identified by name. Further, the particularity of the facts
       established that: (1) there was a shooting; (2) Nichols and Parker were present before, during,
       and after the shooting; (3) they saw a firearm being retrieved from the Toyota in the garage
       prior to the shooting; (4) Nichols was defendant’s estranged spouse and a co-owner of the
       vehicle; and (5) ammunition was previously kept in the Toyota. Accordingly, the State argued
       that the affidavit sufficiently established probable cause to believe that evidence of the crime
       would be found in the car.
¶ 14       The trial court denied defendant’s motion to quash and suppress. The court noted that the
       real issue was whether the affidavit established probable cause to believe that a crime had been
       committed and that, if a search warrant were issued, some evidence of that crime would be
       found. “We are looking at whether there was fair probability that evidence of a crime would be
       found in a particular place.” The court noted that case law instructs that a court should
       remember that, as the very name implies, the issue concerns probabilities, and, so, a court
       should not be too technical and should “keep it simple.”
¶ 15       The court looked to the totality of information in the affidavit to determine whether there
       had existed probable cause to issue a search warrant. Further, the court noted that it would not
       inject into its analysis matters outside the affidavit and that, therefore, it did not matter that
       Mahoney was well known by the Carpentersville legal community. In fact, the court
       announced that, for purposes of its analysis, Mahoney’s name could be taken out of the
       affidavit. It noted that the four corners of the affidavit established that the attorney providing
       the information to Spencer was “well-known” to him. The parties providing information to
       Mahoney were both named. Nichols was defendant’s estranged wife and a co-owner of the
       vehicle in question. Before, during, and after the shooting, Nichols and Parker were present at
       the residence where the shooting occurred, and they had witnessed a gun being retrieved from
       the Toyota before the shooting. Mahoney told Spencer that ammunition had, in the past, been
       present in the Toyota. Given the information in the affidavit, “[i]t seems reasonable that the
       officers would want to and would believe that if they were to have access to that vehicle that
       there might be some evidence of a crime that they might be able to locate in that car given the
       totality of the information that they have been provided.” The court further noted that,
       considering all of the information, it was “very reasonable” for Mahoney to give the police the
       information; the court suggested that, ethically, an attorney would be “expected” to do so. The
       court found that probable cause had existed for the warrant.

¶ 16                                              C. Trial
¶ 17       Defendant’s bench trial commenced April 16, 2012, and proceeded for five days. On May
       23, 2012, the court found defendant guilty of first-degree murder. In summarizing the
       evidence, the court found that numerous witnesses testified to seeing defendant shoot the
       victim, seeing defendant with a gun, and/or seeing and hearing defendant and the victim argue;
       moreover, multiple witnesses testified that they did not see the victim with a weapon.
       Defendant testified on his own behalf and admitted that he retrieved a loaded gun and fired at
       least four shots at the victim. Defendant argued that he acted in self-defense and that he thought
       the victim had a gun, but he admitted that he did not see the victim with a gun.
¶ 18       The court found defendant not credible and other witnesses credible. The court noted that
       the cartridge cases found at the scene were .45-caliber and were all fired from the same
       weapon. Moreover, it noted that: (1) Parker testified to observing defendant retrieve a

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       .45-caliber handgun and ammunition from under the hood of the car at 126 Amarillo Drive in
       Carpentersville; and (2) a police officer testified to finding “in the garage” a case for a
       .45-caliber handgun, .45-caliber ammunition, a holster, and an owner’s manual for a
       .45-caliber handgun. The court noted that the record was replete with evidence that defendant
       fired the gun, that defendant and the victim were both upset over money, and that they had
       been involved in an “unsatisfactory” drug transaction earlier that day. In sum, the court
       rejected defendant’s self-defense argument and found defendant guilty of first-degree murder.
¶ 19       The court sentenced defendant to 55 years’ imprisonment (30 years for the murder, plus a
       25-year add-on for personally discharging the firearm that caused the victim’s death). The
       court denied defendant’s motion to reconsider the sentence. Defendant appeals.

¶ 20                                            II. ANALYSIS
¶ 21       Defendant’s sole argument on appeal is that the trial court erred in denying his motion to
       quash the search warrant and to suppress evidence. Defendant argues that the warrant was
       invalid because the information in the complaint (specifically, the affidavit) was unreliable and
       failed to establish probable cause for the search. Defendant contends that the information in the
       affidavit came from hearsay sources, without corroboration or a showing that the declarants
       were reliable. Defendant notes that Mahoney was not acting as a private citizen but was
       serving as an advocate for his clients who were present at the shooting, including a registered
       co-owner of the Toyota. Defendant argues that Mahoney’s reliability and motivation for
       calling the police were questionable, given that: (1) those eyewitnesses could have been
       involved in the crime; (2) one witness (Parker) was subject to an outstanding arrest warrant and
       might have supplied information simply to avoid further legal trouble; 1 and (3) we must
       presume that Mahoney was acting in his clients’ best interests. Defendant asserts that a
       “prudent and reasonable person would view with great suspicion accusations against a man
       coming from the attorney representing the man’s estranged wife and her current boyfriend who
       claimed to be present when a fatal shooting occurred.” (Emphasis added.)
¶ 22       The existence of probable cause for a search warrant depends on the totality of the
       circumstances. People v. Tisler, 103 Ill. 2d 226, 237-38 (1984). “A showing of probable cause
       means that the facts and circumstances within the knowledge of the affiant are sufficient to
       warrant a person of reasonable caution to believe that an offense has occurred and that
       evidence of it is at the place to be searched.” People v. Moser, 356 Ill. App. 3d 900, 908 (2005).
       As the trial court noted here, the standard for probable cause concerns the probability of
       evidence of criminal activity, not a showing of proof beyond a reasonable doubt. People v.
       Stewart, 104 Ill. 2d 463, 475-76 (1984). At a probable cause hearing, the trial court must make
       a practical, commonsense assessment of whether, given all of the circumstances set forth in the
       affidavit, there is a fair probability that evidence of a particular crime will be found in a
       particular place. People v. Hickey, 178 Ill. 2d 256, 285 (1997).
¶ 23       We address first defendant’s contention that, because the judge issuing the warrant did not
       hear testimony and there are no facts in dispute, we should consider de novo whether the
       warrant lacked probable cause. We disagree. Generally speaking, where the only issue is
       whether the complaint and supporting affidavit established probable cause, our analysis is of

           1
           Defendant notes that Parker testified at trial in exchange for the reduction of his bond, reduction of
       Class X felony charges to Class 2, and 24 months’ probation.

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       the issuing judge’s initial determination of probable cause, not the trial court’s assessment
       thereof on a motion to quash and suppress. People v. Bryant, 389 Ill. App. 3d 500, 511 (2009).
               “[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an
               affidavit should not take the form of de novo review. A magistrate’s ‘determination of
               probable cause should be paid great deference by reviewing courts.’ [Citation.] ‘A
               grudging or negative attitude by reviewing courts toward warrants,’ [citation] is
               inconsistent with the Fourth Amendment’s strong preference for searches conducted
               pursuant to a warrant; ‘courts should not invalidate warrant[s] by interpreting
               affidavit[s] in a hypertechnical, rather than a commonsense, manner.’ [Citation.]
                   If the affidavits submitted by police officers are subjected to the type of scrutiny
               some courts have deemed appropriate, police might well resort to warrantless searches,
               with the hope of relying on consent or some other exception to the Warrant Clause that
               might develop at the time of the search. *** Reflecting this preference for the warrant
               process, the traditional standard for review of an issuing magistrate’s probable-cause
               determination has been that so long as the magistrate had a ‘substantial basis for ...
               conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth
               Amendment requires no more. [Citations.] We think reaffirmation of this standard
               better serves the purpose of encouraging recourse to the warrant procedure and is more
               consistent with our traditional deference to the probable-cause determinations of
               magistrates ***.” Illinois v. Gates, 462 U.S. 213, 236-37 (1983).
       The reviewing court simply ensures that the magistrate had a substantial basis for concluding
       that probable cause existed. Id. at 236. Thus, if the complaint provided a substantial basis for
       the issuing judge’s probable-cause determination, we will affirm the trial court’s denial of a
       defendant’s motion to quash and suppress. See Stewart, 104 Ill. 2d at 477-78 (first concluding
       that the complaint provided the issuing judge a substantial basis for the probable-cause
       determination and then holding that the trial court’s denial of the defendant’s motion to
       suppress was not erroneous); Bryant, 389 Ill. App. 3d at 511 (holding that, if the judge issuing
       the search warrant was correct, then it necessarily followed that the trial court’s grant of the
       defendant’s motion to suppress was erroneous).
¶ 24       We acknowledge that defendant correctly notes that other cases have stated that, where the
       facts and credibility of witnesses are not contested, whether probable cause exists is a legal
       question reviewed de novo. See, e.g., People v. Sims, 192 Ill. 2d 592, 615 (2000) (considering
       probable cause for a warrantless arrest); People v. Arnold, 394 Ill. App. 3d 63, 68 (2009)
       (considering probable cause for a warrantless arrest and reviewing de novo the trial court’s
       ruling on the motion to suppress); People v. Cooke, 299 Ill. App. 3d 273, 277-78 (1998)
       (reviewing de novo the trial court’s ruling on the motion to suppress, but arguably applying
       Gates’ totality-of-circumstances analysis in reviewing issuing judge’s probable-cause
       determination). Ultimately, whether we apply a deferential standard of review or, as defendant
       urges, de novo review, we conclude that the complaint and affidavit provided a sufficient basis
       such that, given the totality of the circumstances, there was a reasonable probability that
       evidence of a crime would be found in the vehicle specified in the search warrant.
¶ 25       Here, defendant’s primary argument is that the “tip” was not reliable, because it was
       provided by an attorney who was speaking on behalf of his clients, who might have been
       involved in the crime or had motives to protect themselves. We disagree. There is nothing in
       the record before us to suggest that Mahoney’s status as an attorney necessarily rendered him,

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       or the information he provided to the police, more or less reliable than any other named
       informant. Rather, as in any probable-cause determination, the inquiry was simply whether,
       given the totality of the information provided in the complaint and affidavit, it was probable
       that evidence of a crime would be found in the vehicle. That Mahoney hypothetically could
       have “filtered” it did not render the information that was provided inherently unreliable. We
       note that all three individuals from whom the information was derived were identified by name
       in the affidavit, which enhanced the reliability of the tip (see, e.g., Bryant, 389 Ill. App. 3d at
       518), and, further, that the officer knew the person providing the tip (i.e., Mahoney).
¶ 26       Although the affidavit did not expressly state that the officer corroborated the information
       provided by Mahoney’s clients, the complaint and affidavit together allowed for a reasonable
       inference thereof. Specifically, Mahoney told Spencer that Nichols was defendant’s estranged
       wife, that defendant lived at 126 Amarillo Drive, and that, prior to the shooting, defendant
       removed a handgun from a Toyota in the garage at that address. The affidavit then
       corroborated Nichols’ information by specifying that, in fact, a 1986 Toyota was located in the
       garage at 126 Amarillo Drive and “appears” as though it had not been driven in a while
       (suggesting that the existence and location of the vehicle were verified and, further, that the
       vehicle would likely still be there when the search warrant was executed). Further, the affidavit
       provided the vehicle’s color, 17-digit identification number, and 7-digit registration number
       and, critically, the fact that the vehicle “is registered” to both Nichols and defendant. Indeed,
       the complaint asserted that the vehicle “registers” to Nichols and defendant, which suggested
       that Spencer corroborated both Mahoney’s and Nichols’ reliability by searching the vehicle’s
       registration records. Even if he did not, and if the vehicle registration and identification
       numbers were provided solely by Nichols, that detail only adds to the specificity and reliability
       of the tip. Accordingly, because the affidavit provided information that explained the basis of
       Nichols’ and Parker’s information (and thereby Mahoney’s information), this case is different
       from People v. Wilson, 260 Ill. App. 3d 364 (1994), upon which defendant relies, where the
       victim provided information from his daughter, but the police did not know the basis of the
       daughter’s knowledge. See also People v. Smith, 372 Ill. App. 3d 179, 184 (2007) (issuing
       magistrate determines whether there is a fair probability that evidence of a crime will be found
       by considering all circumstances, including the basis of knowledge of persons supplying
       hearsay information).
¶ 27       We reject defendant’s suggestion that a “prudent and reasonable person would view with
       great suspicion accusations against a man coming from the attorney representing the man’s
       estranged wife and her current boyfriend who claimed to be present when a fatal shooting
       occurred.” (Emphasis added.) As noted during the suppression hearing, the issue facing the
       magistrate was not, specifically, whether defendant committed a crime. Rather, the question
       was whether a practical, commonsense assessment of the circumstances set forth in the
       complaint and affidavit showed that there existed a fair or reasonable probability that evidence
       of a crime would be found in a particular place. Hickey, 178 Ill. 2d at 285. Here, the totality of
       the circumstances provided by the affidavit reflected that: (1) Mahoney was “well-known” to
       Spencer; (2) there was a fatal shooting at 126 Amarillo Drive; (3) Nichols and Parker were
       present before, during, and after that shooting; (4) Nichols and defendant were estranged
       spouses; (5) before the shooting, defendant took a handgun from a Toyota that was in the
       garage at that address; and (6) that vehicle was, specifically, “a 1986 Toyota 4 door, grey in
       color, with Illinois registration 591 3440. The vehicle register[ed] to Barbara Nichols and


                                                    -7-
       [defendant]. The vehicle identification number on the vehicle is JT2SV16H9G0515191.”
       Accordingly, given the combination of named, known informants who were present at the
       address and knew that defendant took a handgun from the Toyota, coupled with the specificity
       of the vehicle to be searched, which also corroborated one informant’s relationships with both
       defendant and the vehicle, the information sufficiently created a fair or reasonable probability
       that evidence of a crime would be found in the vehicle. We are not convinced that, when they
       conveyed information to Mahoney, Nichols’ or Parker’s possible ulterior motives (or even
       Mahoney’s) rendered the information inherently unreliable. Again, the inquiry was simply
       whether, given the totality of the information, it was probable that evidence of a crime would
       be found in the vehicle. In any event, we note again that, “although it may not be easy to
       determine when an affidavit demonstrates probable cause, doubtful or marginal cases are
       largely resolved by resorting to the preference accorded to warrants.” People v. Beck, 306 Ill.
       App. 3d 172, 179 (1999). As such, we reject defendant’s argument that the warrant lacked
       probable cause and affirm the trial court’s denial of his motion to quash and suppress.
¶ 28       Given that we have rejected defendant’s probable-cause argument, we need not address the
       State’s alternative argument that the good-faith exception to the exclusionary rule applies to
       prevent suppression. We do, however, agree with the State that, even if the court should have
       granted the motion to quash and suppress, any error was harmless and defendant’s conviction
       must be affirmed. The improper admission of evidence is harmless where there is no
       reasonable probability that, if the evidence had been excluded, the outcome would have been
       different. People v. Lindsey, 2013 IL App (3d) 100625, ¶ 39. “When deciding whether error is
       harmless, a reviewing court may (1) focus on the error to determine whether it might have
       contributed to the conviction; (2) examine the other properly admitted evidence to determine
       whether it overwhelmingly supports the conviction; or (3) determine whether the improperly
       admitted evidence is merely cumulative or duplicates properly admitted evidence.”
       In re Rolandis G., 232 Ill. 2d 13, 43 (2008).
¶ 29       Here, there is no reasonable probability that, if the evidence found in the Toyota had been
       excluded, the result would have been different. The trial court’s ruling reflects that the
       evidence found upon execution of the search warrant contributed very little to the conviction.
       In any event, the other evidence overwhelmingly supports the conviction. Indeed, defendant
       admitted to shooting and killing the victim; the issue was simply whether defendant acted in
       self-defense. Given that several witnesses testified at trial to seeing defendant with a gun
       and/or shoot the victim, we disagree that there is a fair chance that, if the evidence from the
       vehicle had been excluded, the result might have differed.

¶ 30                                      III. CONCLUSION
¶ 31      For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 32      Affirmed.




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