FILED May 14, 2015 Carla Bender

4th District Appellate Court, IL NO. 4-14-0176

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Champaign County KEVIN P. PETTIS, ) No. 13CF1092 Defendant-Appellee. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Justice Appleton dissented, with opinion.

OPINION

¶1 In July 2013, the State charged defendant, Kevin P. Pettis, by information with (1)

armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2012)), (2) aggravated unlawful possession

of a firearm by a felon (730 ILCS 5/5-5-3(c)(2)(F) (West 2012); 720 ILCS 5/24-1.1(e) (West

2012)), and (3) reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2012)). In

December 2013, defendant filed a motion to quash the warrant and suppress evidence and a

motion requesting a Franks hearing pursuant to Franks v. Delaware,

(1978). In

February 2014, the trial court suppressed the evidence seized, finding (1) no probable cause to

support the search warrant and (2) the good-faith exception was inapplicable. On appeal, the

State argues these findings were in error. We reverse and remand, concluding the issuing judge had a substantial basis for concluding probable cause existed. Further, we decline to consider

whether defendant failed to meet the threshold necessary to warrant a Franks hearing.

¶2 I. BACKGROUND

¶3 On July 7, 2013, at approximately 3:19 a.m., officers responded to a "shots fired"

call. As part of the investigation, Officer John Lieb composed two complaints for search

warrants with individual affidavits attached to each. The complaints sought warrants to search

(1) 407 South State Street, Apartment 5, Champaign, Champaign County, Illinois (Apartment 5);

and (2) a tan-colored Chevrolet Tahoe bearing the vehicle identification number of

1GNEK13R2XJ461650 and Illinois registration number P686056 (Vehicle). That morning, the

complaints and affidavits were presented to Judge Richard Klaus. The record indicates the only

facts presented to Judge Klaus were those contained in the affidavits. The affidavit for

Apartment 5, in relevant part, is as follows:

"[O]n July 7, 2013[,] at approximately 0319 hours [Officer Lieb]

investigated a shots fired report where the reporting party, [S.S.R.] ***,

advised she witnessed [defendant] *** fire a handgun in the air as he was

driving a tan colored Chevrolet Tahoe bearing Illinois registration

P686056.

[S.S.R.] advised she knows [defendant] on sight and spoke directly

to him prior to him firing the weapon in the air.

[S.S.R.] pointed out where the Tahoe was located in the parking lot

when [defendant] fired the handgun out the driver's window. Officers

located one shell casing in the same area that was pointed out by [S.S.R.].

-2- [O]n July 7, 2013[,] at approximately 0328 hours officers located

[defendant] in the common area of 407 South State Street. Officers

advised he may have been inside his apartment prior to their arrival.

[Sergeant Matt Crane] called Francis H. Anastasia ***[,] the property

manager of 407 South State[,] who confirmed [defendant] currently lives

at 407 Sout [sic] State Street apartment #5.

[O]n July 7, 2013[,] at approximately 4:30 am[,] [Officer Lieb]

drove by the apartment complex and confirmed that it is legally addressed

as [407 South State Street, Apartment 5, Champaign, Illinois]."

The affidavit for the Vehicle, in relevant part, is as follows:

"[T]hrough the official performance of his duties, [Officer Lieb]

has come to know that a [tan-colored Chevrolet Tahoe with Illinois

registration number] P686056 has been used in the performance of

unlawful use of a weapon and/or aggravated discharge of a firearm.

[O]n July 7, 2013[,] at approximately 0319 hours the Champaign Police

Department received a report of shots fired near Oak Wood Trace

apartments.

[W]hile speaking to [S.S.R.] *** she advised she spoke to

[defendant] *** on this night. They argued because [S.S.R.] told

[defendant] to leave the parking lot and this upset [defendant]. He advised

he would not leave so [S.S.R.] said she was calling the police. As she

began to use her phone [defendant] left in a tan colored Chevrolet Tahoe.

-3- [S.S.R.] believed the registration number was P686094. [S.S.R.] was not

sure of the last two numbers of the registration but believed they may have

been 94.

[S.S.R.] advised she knows [defendant] on sight and spoke directly to him

prior to him firing the weapon in the air.

[A]fter Officers made contact with [defendant] they located a [tan-

colored Chevrolet Tahoe with Illinois registration number] P686056 in the

parking lot west of the apartment building. Officers discovered the engine

was hot to the touch consistent with it being driven recently.

[Officer John McAllister] located the keys to the [tan-colored Chevrolet

with Illinois registration number] P686056 in [defendant's] pants pocket.

[Officer Mason Voges] followed the [tan-colored Chevrolet with Illinois

registration number] P686056 to the Champaign Police Department to

secure the vehicle in the west lot of the Police Department."

¶4 At 7:05 a.m., Judge Klaus issued separate search warrants for Apartment 5 and

the Vehicle. The execution of the warrant on Apartment 5 led to the following items being

recovered: (1) documents of indicia for defendant at the address subject to the warrant, (2) a

men's black wool jacket with red and white stripes, (3) a black Taurus PT140 .40-caliber

semiautomatic handgun, (4) a military-style ballistic carrier with front ballistic panel, (5) a rear

ballistic panel for item No. 4, and (6) .40-caliber ammunition. The execution of the warrant on

the Vehicle led to the recovery of documents of indicia for defendant at Apartment 5.

¶5 In July 2013, the State charged defendant by information with (1) armed habitual

-4- criminal (720 ILCS 5/24-1.7(a), (b) (West 2012)), a Class X felony; (2) aggravated unlawful

possession of a firearm by a felon (730 ILCS 5/5-5-3(c)(2)(F) (West 2012); 720 ILCS 5/24-

1.1(e) (West 2012)), a Class 2 felony; and (3) reckless discharge of a firearm (720 ILCS 5/24-

1.5(a), (c) (West 2012)), a Class 4 felony.

¶6 In December 2013, defendant filed two motions relating to the search of

Apartment 5. The first motion sought to quash the warrant issued to search Apartment 5 and

suppress all evidence seized therefrom. The second motion requested a Franks hearing.

¶7 The motion seeking a Franks hearing alleged the affiant, Officer Lieb, made

deliberate falsehoods or recklessly disregarded the truth in his affidavit and those

misrepresentations were material to establishing probable cause. Specifically, defendant alleged:

contrary to the statement (1) of the apartment property manager, he did not live at or sign a lease

for Apartment 5; (2) S.S.R. identified the Illinois registration number as P686056, Officer Lieb

knew S.S.R. identified it as P686094 and deliberately misrepresented this information; (3)

defendant was "located" at approximately 3:28 a.m. in the common area of the apartment

complex, Officer Lieb knew or should have known defendant was "stopped" a half block north

of the complex and deliberately misrepresented this information; and (4) officers were advised

defendant may have been inside his apartment prior to their arrival, Officer Lieb knew or should

have known no officer saw defendant inside Apartment 5. Defendant attached his personal

affidavit in support of these allegations, indicating (1) he did not live at or sign a lease for

Apartment 5, but rather stored belongings there because of a recent apartment fire; (2) other

individuals had access to and stored items in Apartment 5; (3) he did not own or possess the

firearm found in Apartment 5; (4) he did not discharge a firearm from the vehicle; and (5) on

-5- July 7, 2013, at approximately 3:28 a.m., he was stopped by officers a half block north of the

apartment complex.

¶8 In January 2014, Judge Heidi Ladd conducted a hearing on defendant's motion to

quash the Apartment 5 warrant and suppress all evidence obtained therefrom. The trial court

first gave the parties the opportunity to present argument as to whether the affidavit contained

probable cause on its face. After considering the arguments of the parties, the court concluded,

although there was sufficient probable cause to establish an offense had been committed, the

affidavit was insufficient to establish a nexus between the crime committed and the place to be

searched. The court found the statement indicating the officers were advised defendant may

have been in his apartment prior to their arrival should be disregarded as it was conclusory, with

no supporting facts. It also found the only factors establishing a nexus to Apartment 5 were

defendant being "located" in the common area nine minutes after the police arrived to investigate

the incident and a suggestion he had an apartment in the area. The court concluded, based on the

case law presented, "there has to be more than the mere fact that someone committed a crime and

was in roughly the same area as the residence" to justify the issuance of a warrant to search the

residence. Therefore, the court found no probable cause to support the Apartment 5 search

warrant.

¶9 After finding no probable cause existed, the trial court conducted a good-faith

hearing pursuant to United States v. Leon,

(1984). The parties presented evidence

and argument as to whether the facts presented a situation where the good-faith exception should

not apply. Specifically, the parties addressed whether Judge Klaus was misled by information in

the Apartment 5 affidavit that Officer Lieb knew was false or would have known was false

-6- except for his reckless disregard of the truth.

¶ 10 In February 2014, after considering the evidence presented and the arguments of

the parties, the trial court concluded the good-faith exception was inapplicable and thus any

evidence recovered as a result of the execution of the defective Apartment 5 search warrant

should be suppressed.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, the State argues the trial court erred in finding (1) the search warrant

was unsupported by probable cause, and (2) the good-faith exception did not apply. The State

further argues defendant failed to make the substantial preliminary showing necessary to obtain a

Franks hearing. Defendant disagrees and has filed a motion to strike the portion of the State's

brief seeking review of the Franks issue.

¶ 14 A. Probable Cause

¶ 15 The trial court concluded the affidavit presented to Judge Klaus on its face was

insufficient to support a finding of probable cause to search Apartment 5 and thus justify the

issuance of a search warrant. The State contends this finding was in error.

¶ 16 Although we are reviewing the trial court's order suppressing the evidence seized,

we begin our analysis by reviewing Judge Klaus's conclusion the complaint was sufficient to

justify issuing the search warrant. See People v. Bryant,

,

(2009). Should we determine Judge Klaus's decision was correct, then it necessarily

follows the trial court erred by ruling the search warrant was issued without probable cause and

its findings at the Leon hearing are irrelevant. Bryant,

, 906 N.E.2d at158.

-7- ¶ 17 When reviewing a decision to issue a warrant, "[o]ur function as the reviewing

court is not to substitute our judgment for that of the issuing [judge] but, rather, to ensure that the

[judge] had a substantial basis for concluding that probable cause existed." People v. Sutherland,

,

(2006). A reviewing court must afford great deference

to the issuing judge's conclusion. Bryant,

,

. When a

warrant is sought and granted by a neutral and detached member of the judiciary, our courts have

indicated a preference to uphold the validity of such warrants. Bryant,

-

16,

. This standard of review applies to both the appellate court and the

trial court when called upon to review a decision of an issuing judge. Bryant,

,

.

¶ 18 Probable cause exists where, given the circumstances set forth in the affidavit,

"there is a fair probability that contraband or evidence of a crime will be found in a particular

place." Illinois v. Gates,

(1983). Whether probable cause exists depends on

the totality of circumstances known to an affiant at the time he or she is seeking a warrant.

People v. McCarty,

,

(2006). In other words, probable

cause exists when the circumstances known to the affiant are "sufficient to warrant a person of

reasonable caution to believe that the law was violated and evidence of it is on the premises to be

searched." People v. Griffin,

,

(1997).

¶ 19 In making the determination of whether the issuing judge had a substantial basis

for concluding probable cause existed under the deferential standard of review, affidavits must

be viewed in a commonsense, nonhypertechnical manner. People v. Thomas,

,

(1975). We further must consider only the facts the issuing judge had

-8- before him at the warrant-application proceeding and the reasonable inferences from those facts.

Bryant,

,

; People v. Beck,

,

(1999).

¶ 20 At the warrant-application proceeding, Judge Klaus was presented with the

complaints and affidavits for Apartment 5 and the Vehicle. On July 7, 2013, at 7:05 a.m., Judge

Klaus issued both warrants. Defendant conceded at oral argument that since both affidavits were

before Judge Klaus, this court should consider the content of both affidavits in determining

whether probable cause was established for the issuance of the search warrant for Apartment 5.

Thus, we consider both affidavits as we seek to determine the propriety of the warrant for

Apartment 5. The State contends, in viewing the facts contained in both affidavits and drawing

reasonable inferences therefrom, under the deferential standard of review, Judge Klaus had a

substantial basis for finding probable clause existed. We agree.

¶ 21 We initially address the following language contained in the affidavit for

Apartment 5: "Officers advised he may have been inside his apartment prior to their arrival."

Judge Ladd disregarded this statement, finding it to be conclusory, with no supporting facts. We

agree with Judge Ladd's finding. Absent a showing to the contrary, we presume an issuing judge

knew and followed the law. See In re Jonathon C.B.,

,

.

As the record does not show otherwise, we presume Judge Klaus disregarded this statement as

being conclusory, with no supporting facts.

¶ 22 Ignoring the above statement from the Apartment 5 affidavit, we consider whether

the remaining facts before Judge Klaus are sufficient to support a substantial basis for Judge

Klaus to find probable cause existed. The Apartment 5 affidavit indicates, at 3:19 a.m., officers

-9- were called to a "shots fired" report, where S.S.R. indicated defendant discharged a firearm in the

air from his vehicle. S.S.R. advised she knew defendant on sight and spoke to him prior to when

he discharged the firearm. S.S.R. gave a description of the vehicle, including make, model,

color, and Illinois registration number. She also indicated where the vehicle was located when

defendant discharged the firearm. Officers searched the area indicated by S.S.R. and found a

shell casing. Approximately nine minutes later, around 3:28 a.m., defendant was "located" in the

common area of 407 South State Street. The property manager of the apartment complex at 407

South State Street indicated defendant lived in Apartment 5 and officers confirmed the location

of Apartment 5.

¶ 23 In addition, the vehicle affidavit revealed defendant left the scene of the alleged

crime in the Tahoe and subsequently removed himself from the vehicle which was found parked

but still hot to the touch. While keys to the Tahoe were retrieved from defendant's pocket, the

officer was seeking the warrant in an attempt to locate any weapon that may have been used in

the commission of the alleged offense.

¶ 24 In finding an absence of probable cause to search Apartment 5, Judge Ladd

expressed that the affidavits failed to establish the necessary nexus between the alleged crime

and the apartment. We agree with Judge Ladd "there has to be more than the mere fact that

someone committed a crime and was in roughly the same area as the residence" to justify the

issuance of a warrant to search the residence. See People v. McCoy,

,

(1985). As McCoy points out, sufficient facts must exist to cause a

reasonable person to believe the item sought will be located at the place to be searched. McCoy,

- 10 -

,

. The affidavits presented to Judge Klaus satisfy this

burden.

¶ 25 Judge Klaus, in considering the facts and reasonable inferences from those facts,

was presented with a situation where officers responded to a "shots fired" call in the early

morning hours and the suspect had fled the scene. The officers received information on the

incident, the suspect, and the suspect's vehicle from an identified witness whose information was

corroborated by evidence at the scene. In the early hours of the morning, approximately nine

minutes after receiving this information, officers located the suspect outside in the common area

of an apartment complex where he lived. Officers who made contact with defendant found keys

to the Tahoe but no weapon on defendant's person. Drawing reasonable inferences from the

information contained in both affidavits, one could reasonably believe defendant (1) committed

the offense; (2) left the scene; (3) drove to his apartment; (4) parked the vehicle; (5) secreted the

weapon in his apartment; (6) was then "located" in the common area of his apartment building;

and (7) was subsequently apprehended by officers who made contact with him approximately

one block from his apartment building. In viewing the affidavits in a commonsense,

nonhypertechnical manner, probable cause was established. Giving the required deference to the

issuing judge's conclusions, Judge Klaus could have reasonably concluded, based on the totality

of the facts presented and the reasonable inferences drawn therefrom, that defendant violated the

law and evidence of the crime committed, i.e., the firearm, could be found inside defendant's

residence, Apartment 5.

¶ 26 Therefore, having concluded Judge Klaus had a substantial basis to conclude

probable cause existed to issue a warrant to search Apartment 5, Judge Ladd's finding to the

- 11 - contrary was in error. Given "the Leon good-faith exception arises only after a court determines

that the search warrant at issue was improperly issued for lack of probable cause" (emphasis in

original), Judge Ladd should not have considered whether the Leon good-faith exception applied.

Bryant,

,

.

¶ 27 B. Franks Hearing

¶ 28 The State further argues defendant failed to make the substantial preliminary

showing necessary to obtain a Franks hearing. In response, defendant argues this issue "must

wait until a proper appeal" as the trial court never ruled on his Franks motion. We agree with

defendant. As Judge Ladd made clear on the record, her finding of "no probable cause" required

her to proceed with a Leon hearing and refrain from conducting a Franks hearing. Considering

that Judge Ladd made no ruling regarding defendant's request for a Franks hearing, were this

court to decide the Franks issue, we would (1) rule without the benefit of a complete record on

the issue; (2) usurp the role of the trial court; and (3) deprive the trial court of the opportunity to

address the issue. We decline to do so. In light of our position, we need not consider defendant's

motion to strike part of the State's brief.

¶ 29 III. CONCLUSION

¶ 30 We reverse the trial court's judgment, concluding the Apartment 5 complaint and

affidavit, along with the vehicle complaint and affidavit, afforded a substantial basis from which

the issuing judge could find probable cause existed to search Apartment 5. Further, we decline

to consider whether defendant failed to meet the threshold necessary to warrant a Franks

hearing.

¶ 31 Reversed and remanded.

- 12 - ¶ 32 JUSTICE APPLETON, dissenting.

¶ 33 I respectfully dissent. I agree with Judge Ladd that the evidence was insufficient

for the search of defendant's apartment. The officers lacked any concrete evidence, apart from

surmise, to justify the issuance of the warrant.

- 13 -