                                                          FIRST DIVISION   
                                                          FEBRUARY 10, 1997








No. 1-96-0939


THE PEOPLE OF THE STATE OF ILLINOIS,         )    APPEAL FROM THE
                                             )    CIRCUIT COURT OF
          Plaintiff-Appellee,                )    COOK COUNTY.
                                             )
v.                                           )    
                                             )
LANCE CHANEY,                                )    HONORABLE
                                             )    WILLIAM SCHULTZ,
          Defendant-Appellant.               )    JUDGE PRESIDING.

     
     PRESIDING JUSTICE CAMPBELL delivered the opinion of the 
court:
     Following a stipulated bench trial, defendant, Lance Chaney,
was found guilty of possession of a controlled substance, sen-
tenced to one year probation, fined $50 for laboratory fees and
assessed a $5 monthly probation fee.  On appeal, defendant
contends that:  (1) he was constitutionally entitled to examine a
confidential informant in camera at a mandatory hearing pursuant
to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 667, 98 S. Ct.
2674 (1978); (2) the trial court erred in denying his motion to
suppress his search warrant; (3) the State failed to establish
his guilt beyond a reasonable doubt; and (4) he was denied
effective assistance of counsel at trial.  For the following
reasons, we vacate defendant's conviction and remand this matter
for a new Franks hearing consistent with this opinion.
     The record reveals the following relevant facts.  Defendant
was arrested on January 10, 1995, for possession of cocaine.  
Prior to trial, defendant filed a motion for an evidentiary 
hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed.
667, 98 S. Ct. 2674 (1978) (Franks hearing), to challenge the
veracity of the sworn statements made by Chicago Police Officer
Gerald Lau in order to obtain the search warrant issued on
January 9, 1995.  
     In his motion, defendant alleged that on January 9, 1995,
Officer Lau filed a complaint for search warrant of the 3rd floor
apartment located at 8253 South Evans, based on information
provided by a confidential informant.  The informant allegedly
told Officer Lau that he had purchased an unknown quantity of
rock cocaine for an unknown amount of United States Currency from
a light-skinned, black male who was approximately 30 years old,
5'9" and 195 pounds.  The suspect allegedly told the informant
that the informant could come back later "whenever he wanted to." 
      Defendant alleged that the above conversation with the
informant and the subsequent conduct set forth in the complaint
for search warrant was false, and that the officer acted in
reckless disregard of the truth in preparing the complaint.
Defendant's allegation was based on the fact that previously, on
January 6, 1995, Officer Lau had filed a complaint for a search
warrant to search the first floor of 8207 S. Clyde, Chicago,
using the identical language, except describing the suspect as
age 35 and 190 pounds.  
     When Officer Lau executed the prior search warrant on
January 9, 1995, at 11:20 a.m. at 8207 South Clyde, the defendant
described in the warrant was not present; no narcotics were
recovered; no arrest was made; and no proof of residency was
obtained reflecting that defendant actually resided at that
address.   
     Defendant further alleged that the second search warrant,
obtained on January 9, 1995 at 2:28 p.m., just hours after the
failed raid on 8207 South Clyde, was not issued by the same Cook
County Judge as signed the first warrant obtained on January 6,
1995.  The record does not show that Officer Lau informed the
judge who issued the second warrant on January 9, 1995, that he
had fresh, personal knowledge of an unsuccessful raid of the same
defendant.  
     Defendant attached his own affidavit and that of Roger Huff. 
Defendant averred that on January 10, 1995, he resided at 8253
South Evans, 3rd floor, Chicago.  Nevertheless, between Janu-
ary 7, 1995, at 10 p.m., and January 10, 1995, at noon, defendant
averred that he was staying at Huff's residence, located at 3308
West 85th Street, caring for Huff's two children.  Defendant
further averred that at no time did he sell or give any cocaine
to anyone and that he specifically did not sell any cocaine to
any person on January 9, 1995, at 8253 South Evans.  Roger Huff
averred that defendant stayed at Huff's house and watched Huff's
children at the times averred by defendant.  Huff further stated
that although he was not at home until 5:30 p.m. on January 9,
1995, he had telephoned home periodically to see how the children
were doing, and that defendant answered the telephone each time.
     The State filed a motion to strike defendant's motion for a
Franks hearing, stating that defendant had not met his burden of
making a substantial preliminary showing that the affidavit of
Officer Lau was false.  Defendant filed a response, stating that
because Officer Lau had finished executing the first search
warrant at 1 p.m. on January 9, and a judge signed the second
warrant at 2:28 p.m. that day, it was highly improbable that
Officer Lau spoke to the informant in between these times. 
Therefore, no new probable cause existed for the issuance of the
warrant to search 8253 S. Evans.  
     Defendant attached his own affidavit stating that Mary
Manning (a.k.a. Mary Evans) was his girlfriend on January 9,
1995; that Manning lived at 8207 South Clyde, first floor in
January 1995; that Manning told defendant after his arrest that
Officer Lau had instructed her not to call defendant and tell him
that the police were looking for him; and that Manning gave
defendant a copy of the search warrant and Officer Lau's business
card which the officer left with Manning on January 9, 1995.  
     The trial court granted defendant's motion for an eviden-
tiary hearing pursuant to Franks v. Delaware, and a hearing
proceeded on January 29, 1996.  At the hearing, defense counsel
elicited the following testimony from Officer Lau:  On January 9,
1995, at 11:20 a.m., Officer Lau conducted a raid at 8207 South
Clyde, which concluded at 1 p.m.  Officer Lau did not remember
whether he had a conversation with his confidential informant
before or after he executed the search warrant on January 10,
1995, but testified that he did, in fact, speak to the informant
some time on January 9, 1995.  The officer agreed that the second
search warrant was signed by a judge at 2:28, one hour and twenty
minutes after the officer completed his paperwork on the Clyde
raid.  
     At the conclusion of the hearing, the trial court determined
that the defendant failed to establish, by a preponderance of the
evidence, that Officer Lau was perjurious at the time he peti-
tioned for a second search warrant.  For this reason, the trial
court denied defendant's motion to quash the search warrant.
     A trial immediately followed the hearing.  At trial, Officer
Lau testified on behalf of the State, that on January 10, 1995,
at approximately 1:50 p.m., he executed a search of an apartment
located at 8253 South Evans, Chicago, pursuant to a search
warrant, by breaking down the door of the apartment.  The officer
was accompanied by a police sergeant.  At that time, the officer
had a conversation with defendant.  The officer handed defendant
a copy of the search warrant and explained why the police were
there, and asked defendant if he had any illegal contraband in
his house, meaning narcotics or weapons.  Defendant responded
that he had a weapon in a bed stand and a little personal use
cocaine.  The officer went to the locations defendant indicated,
and recovered a weapon and some white powder substance.
     On cross-examination, Officer Lau stated that at the time of
the search, a woman named Rhonda Curry was also present in
defendant's living room.  The officer stated that he found the
cocaine on a dresser in the bedroom.
     The parties stipulated to the testimony of a lab analyst,
qualified as an expert witness in forensic chemistry, who would
have stated that the substance found in defendant's apartment
tested positive for the presence of cocaine in the amount of .97
grams.  Defendant presented no witnesses on his behalf.
     At the conclusion of the trial, the trial court stated that
he found the testimony of Officer Lau to be credible, and found
defendant guilty of the single count of possession of a con-
trolled substance.  The trial court waived review of defendant's
presentence investigation, and sentenced defendant to one-year
probation with a $50 laboratory fee and a $5 per month probation
reporting fee.  Defendant's timely appeal followed.
     Initially, defendant contends that he was constitutionally
entitled to examine the confidential informant in camera at the
Franks hearing.  Defendant argues that he is entitled to disclo-
sure of the identity of the informant because there is a serious
doubt as to the actual existence of the informant.  
     The State initially responds that defendant has waived this
issue for review for failing to request an in camera inspection
of the informant prior to the appeal, and failing to file a post
trial motion.  People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124
(1988).
     Defendant replies that because the evidence was closely
balanced, and because he has also argued that he was deprived
effective assistance of counsel, his constitutional rights were
impaired in such a way as to constitute plain error, and there-
fore he has not waived this issue for review on appeal.     
     In Franks, the United States Supreme Court recognized that
although an affidavit supporting a search warrant is presumed
valid, a defendant has a limited right to challenge the veracity
of the affidavit.  The Court held that:
           "[w]here the defendant makes a substantial
          preliminary showing that a false statement
          knowingly and intentionally, or with reckless
          disregard for the truth, was included by the
          affiant in the warrant affidavit and if the
          allegedly false statement is necessary to the
          finding of probable cause, the Fourth Amend-
          ment requires that a hearing be held at the
          defendant's request."  Franks, 438 U.S. at
          155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d 667.
In People v. Lucente, 116 Ill. 2d 133, 506 N.E.2d 1269 (1987),
our supreme court addressed the issue of what is required in
order for the defendant to make "a substantial preliminary
showing."  The court stated that while it is true that the
defendant's ultimate burden is to show by a preponderance of the
evidence that the affiant-officer made deliberate or recklessly
false statements, Franks does not require that the defendant
disprove every other possibility at the preliminary stage.  The
court noted that in such cases where an informant's identity is
unknown, and the defendant cannot offer the informant's testimony
as proof that the officer falsified information, a defendant
lacks the necessary information to determine the source of the
allegedly false statements.  This reality affects the burden of
proof which a defendant can reasonably sustain in order to
achieve a hearing and to protect against perjurious warrant
applications.  Our supreme court has held that a trial court may,
in its discretion, require an in camera inspection of a confiden-
tial informant if, under all the circumstances, the trial court
doubts the credibility of the officer-affiant.  People v. Vau-
zanges, 158 Ill. 2d 509, 520, 634 N.E.2d 1085 (1994).  The
defendant has the burden of showing the need for disclosure of an
informant.  People v. McBee, 228 Ill. App. 3d 769, 773, 593
N.E.2d 574, 576 (1992).
     In the present case, the trial court determined that defen-
dant made a substantial preliminary showing that the affidavit of
Officer Lau was false, based on the following:  (1) the two
complaints for search warrants "were very substantially identi-
cal"; (2) the fact that the execution of the first warrant
yielded negative results; and (3) the short time span between the
execution of the first warrant and the issuance of the second
warrant.  
     At the Franks hearing, Officer Lau testified that he spoke
to a confidential informant sometime on January 9, 1995; obtained
a signed search warrant from a judge on that day; and searched
defendant's apartment on January 10, 1995.  Defense counsel
elicited from the officer that he obtained the January 9, 1995,
search warrant at 2:28 p.m., one hour and twenty minutes after
the officer completed paperwork on the unsuccessful Clyde apart-
ment raid.  The officer further stated that he could not remember
whether he talked to the informant before or after the unsuccess-
ful raid of the Clyde apartment.  Defense counsel therefore
attempted to show that the officer intended to obtain the second
arrest warrant for the defendant without obtaining any new
information from the informant.
     In fact, the record does not reveal that Officer Lau dis-
closed to the judge issuing the second warrant the details of the
unsuccessful raid of the Clyde apartment.  The record further
strongly suggests that the second warrant for defendant was
issued based on the exact same information as the first warrant.
Officer Lau's second complaint for search warrant varies only
slightly in the physical description of defendant, i.e., an age
difference of five years (30 vs. 35); and a weight difference 5
pounds (190 vs. 195 lbs).  Further, the officer states in both
complaints, in almost identical language, that over the course of
six months, the informant provided the officer with at least
three locations where narcotics were sold; that raids were served
on these locations and that narcotics were recovered.  The second
complaint for warrant does not reveal that a fourth and recent
raid, the Clyde raid, failed to result in the recovery of narcot-
ics.  The record suggests that Officer Lau may have improperly
withheld information from the second judge from whom he sought an
arrest warrant, and the trial court therefore had cause to doubt
the credibility of the officer at the Franks hearing.       
     We find that the conduct on the part of the arresting
officer described above may have prejudiced the defendant 
thereby resulting in plain error.  We therefore vacate defen-
dant's conviction, and remand this matter to the trial court for
the purpose of conducting a new Franks hearing, in order for the
State to furnish evidence regarding the connection, if any,
between the first and second complaints for arrest warrant. 
Because we vacate the judgment of the trial court based on an
inadequate Franks hearing, we need not reach the other issues
raised by defendant in this appeal.
     For the reasons stated above, the judgment of the trial
court is therefore reversed and remanded. 
     Reversed and remanded.
     BUCKLEY, J., and GALLAGHER, J., concur.


