Opposition Brief — Silver v. Illinois

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NO. 87-222 JOSEPH F. SPF ai

begeers tere”

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

FRED SILVER,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

NEIL F. -HARTIGAN,

Attorney General

State of Illinois

TERENCE M. MADSEN

Assistant Attorney General

188 West Randolph Street,

Suite 2200

Chicago, Illinois 60601

Attorneys for Respondent.

RICHARD M. DALEY

State's Attorney

County of Cook

500 Richard J. Daley Center

Chicago, Illinois 60602

THOMAS V. GAINER, JR.,

KENNETH T. MCCURRY,

MARY KATHERINE MOORE,

Assistant State's Attorneys

Of Counsel.

*Counsel of Record.

QUESTIONS PRESENTED FOR REVIEW

Whether the trial court properly

denied petitioner's motion to quash a search

warrant where, in light of the totality of the

circumstances presented to the issuing

magistrate, there existed a solid and ample

factual basis for a finding that probable

Cause existed for the issuance of that

warrant.

Whether the issuing judge was

somehow rendered impartial by simultaneously

considering virtually identical affidavits in

Support of both the request for aé_éesearch

warrant and the application for judicial

approval to record petitioner's phone

conversations.

TABLE OF CONTENTS

Questions Presented...

Table of Contents.....

Table of Authorities..

Opinion Below.........

UPAR ICEIONscccccccocse

Constitutional Provision Involved.......

Bememmene GF CHO COBO. cccccccceess peeeee

Reasons for Denying the Writ.......eeee-

iii

BECAUSE THE APPELLATE

COURT OF ILLINOIS CORRECTLY

APPLIED THE "TOTALITY OF THE

CIRCUMSTANCES" APPROACH, AS

SET FORTH IN ILLINOIS _V.

GATES, IN ARRIVING AT ITS

DETERMINATION THAT PROBABLE

CAUSE EXISTED FOR THE ISSUANCE

OF A SEARCH WARRANT, AND

BECAUSE SIMULTANEOUS

CONSIDERATION OF | MULTIPLE

DOCUMENTS IN SUPPORT OF

REQUESTS FOR WARRANTS RAISES

NO ISSUE OF INTRINSIC

IMPORTANCE, NOR IS THERE

CONFLICT AMONG THE

JURISDICTIONS, THIS PETITION

FOR WRIT OF CERTIORARI IS

UNWORTHY OF SUPREME COURT

REVIEW, AND SHOULD BE DENIED.......

CONG TUBIOR: 62 cicice da RKK ERE Eee

TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas, 378 U.S. 108,

, Oe. ee Ses BRE CADGS) cc cccccos seeeee

Commonwealth v. Saleh, 369 Mass. 406,

486 N.E.2d 706 | ae

Connally v. Georgia, 429 U.S. 245,

97 S. i 546 eri naaéaeke e*eeeneeees

Coolidge v. New Hampshire, 403 U.S. 443,

75 Ba Ges See CHOTES cscece oeaceese

Illinois v. Gates, 462 U.S. 213,

103 S. Ct. 2317( 1983)....... cosees

Johnson v. United States, 333 U.S. 10,

Se es Eee SET COOOL 6 adtccesecesecs

McCray v. Illinois, 386 U.S. 300,

BF Ws Gee SOO CADET De ccccocecsoses

State v. Boushee,

284 N.W.2d 423 (N.D. 1979)... cece

State v. Gamage, 340 A. 2d 1 (Me. 1975).

State v. Mondo, 325 N.W.2d 201

Cs Me oo 0e.0 eed b 60664606668 008

State v. Smith, 295 Minn. 65,

SUE Masa SOO CISTS cctcocccecocesss

Tucker v. State, 403 So.2d 1274

CUESEs BPA P cosecccecs $00 eeueesnces

Cases: Page

United States v. Leon, 468 U.S. 897,

i SS ee ee | Dee eee 18, 19

United States v. McCoy,

781 F.2d 168 (10th Cir. 1985)...... 15

United States v. Ventresca, 380 U.S. 102,

Se Bs we FEM COON £66 eh 0rseecceens 13

Constitutional Provision:

U.S. COnSt., AMONG [Vi cccccccccccccccece passim

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

FRED SILVER, .

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

OPINION BELOW

Pursuant to a stipulated bench

trial before the Honorable James J. Heyda,

the petitioner pled guilty to possession of a

controlled substance with intent to deliver

and delivery of a controlled substance. His

conviction was affirmed by the Appellate

Court of Illinois and is reported at 151 Ill.

App. 3d 156, 502 NE.2d 1141 (1st Dist.

1986). See Petitioner's Appendix at la-8a.

Petitioner's petition for rehearing’ was

denied on January 27, 1987. See Petitioner's

Appendix at Qa. Petitioner's petition for

leave to appeal to the Supreme Court of

Illinois was denied on June 4, 1987. See

Petitioner's Appendix at 10a.

JURISDICTION

Petitioner invokes this Court's

jurisdiction pursuant to 28 U.S.C. sec.

1257(3). However, as treated more fully

below, respondent submits that no good reason

exists for this Court to grant the instant

petition for writ of certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV

The right of the people to be

secure in their person, houses, papers and

effects, against unreasonable searches’ and

seizures, shall not be violated, and no

Warrants shall issue, but upon _ probable

cause, supported by Oath or affirmation, and

particularly describing the place to. be

searched, and the persons or things to be

seized.

STATEMENT OF THE CASE

Respondent accepts petitioner's

version of the procedural facts of this case,

as set forth in petitioner's petition for

writ of certiorari at pages 2-4. The facts

upon which both the trial court, as well as

the Appellate Court of Illinois, based their

findings that probable cause existed for the

issuance of a search warrant are fully set

forth in the complaint for the search

warrant, reprinted in its entirety in

Petitioner's Appendix at pages 12a-19a, and

are abbreviated, in relevant part, in the

argument portion of this Brief in Opposition.

REASONS FOR DENYING THE

PETITION FOR WRIT OF CERTIORARI

BECAUSE THE APPELLATE

COURT OF ILLINOIS CORRECTLY

APPLIED THE "TOTALITY OF THE

CIRCUMSTANCES" APPROACH, AS

SET FORTH IN ILLINOIS V.

GATES, IN ARRIVING AT ITS

DETERMINATION THAT PROBABLE

CAUSE EXISTED FOR THE ISSUANCE

OF A SEARCH £WARRANT, AND

BECAUSE SIMULTANEOUS

CONSIDERATION OF MULTIFLE

DOCUMENTS IN SUPPORT OF

REQUESTS FOR WARRANTS’ RAISES

NO ISSUE OF INTRINSIC

IMPORTANCE, NOR IS THERE

CONFLICT AMONG THE

JURISDICTIONS, THIS PETITION

FOR WRIT OF CERTIORARI IS

UNWORTHY OF SUPREME COURT

REVIEW, AND SHOULD BE DENIED.

Petitioner Fred Silver petitions

this Honorable Court for a writ of certiorari

to the Appellate Court of Illinois, claiming,

first, that the Appellate Court of Illinois

improperly determined that probable cause

existed upon which to issue a warrant and,

second, that the issuing judge was somehow

rendered impartial because he simultaneously

considered affidavits supporting both the

request for the search warrant and the

application for judicial approval to record

petitioner's telephone conversations. The

People of the State of Iilinois maintain,

however, that, for the reasons stated below,

the grounds raised by petitioner do not form

a sufficient basis upon which to grant a writ

of certiorari. The instant petition should

therefore be denied.

First, petitioner urges this Court

to grant the writ of certiorari in this case

"in order to reaffirm the necessity of the

presence of probable cause before a judge

permits the issuance of a search warrant."

(Petitioner's petition at p.4) That is,

petitioner raises no unique constitutional

question. Rather, resolution of this issue

is purely a matter of fact and was correctly

decided against petitioner by the Appellate

Court of Illinois.

There is no question between the

parties that this Court's decision in

Illinois v. Gates, 462 U.S. 213, 103 S. Ct.

2317 (1983) is determinative of this issue.

In Gates, this Court held that in determining

whether there was probable cause to issue a

search warrant, a reviewing court must look

to the totality of the circumstances. Gates,

462 U.S. at 238. That is, whether the

complaint is sufficient depends upon whether

the complaint, considered as a whole,

adequately establishes that there was a fair

probability that evidence of a crime would be

found in a particular place. Id. MThus, the

task of an issuing magistrate is simply to

make a practical common sense decision

whether, given all the circumstances. set

forth in the affidavit, including the

"veracity" and "basis of knowledge" of

persons supplying hearsay information, if

any, there is a fair probability that

contraband or evidence of a crime will be

found. Id. In addition, where an affidavit

includes information provided by a

confidential. informant, the credibility of

that verson, as well as the reliability of

the information provided, may be established

upon a showing that the informant § has

provided the affiant with reliable

information on previous occasions. McCray v.

Illinois, 386 U.&. 300, 311, 87 &. Ct. 1056

(1967).

In the instant case, the Appellate

Court of Illinois properly and accurately

applied the Gates "totality of the

circumstances" approach in arriving at its

determination that probable cause existed for

the issuance of a search warrant. The facts

upon which the trial court based its finding

of probable cause are fully set forth in the

complaint for the search warrant, reprinted

in its entirety in Petitioner's Appendix at

pages 12a-19a, and are here abbreviated for

the sake of clarity and economy.

As the result of an ongoing

undercover investigation of the petitioner,

which spanned a period of three months, the

affiants, special undercover narcotics agents

Claude Kaysen and Victoria Gadomski, filed a

seven page complaint for a search warrant.

(Petitioner's petition at p. 12a) This

complaint was highly particularized and

detailed several transactions between affiant

Kaysen and one Scott Prisant, a drug dealer.

During five of the encounters, Prisant

delivered various quantities of white powder,

all of which subsequently tested positive as

cocaine. On four of these occasions, after

receiving the required amount of money from

the affiant, Prisant stated that he was going

to the home of his "source" to purchase the

cocaine ordered by the affiant and would

return immediately. On each of these

occasions, Prisant was kept under constant

surveillance by a team of undercover

narcotics agents from the time he left

affiant until he- returned. Each time,

Prisant went directly to the home of

petitioner, where he was observed with

petitioner, and then returned to affiant with

the ordered amount of cocaine. Prisant made

no other stops, excepting one occasion upon

which he had advised the affiant that he was

going to drop a gram of cocaine off at

"Jim's" on the return trip. In accord with

this statement, Prisant was observed stopping

briefly at an address which was subsequently

checked and found to be the residence of one

Jim De Pietro. On one of these occasions,

prior to leaving for Petitioner's residence,

Prisant placed a telephone call and ordered

cocaine. Affiant Kaysen observed the number

which Prisant dialed and subsequent check of

that number revealed that it was listed to

petitioner.

In addition to the detailed

observations of the affiants themselves, as

well as those of other agents involved in the

investigation, affiant Kaysen also included

in the complaint that he had_ received

information from a confidential informant

that Prisant's source of cocaine was the

petitioner Fred Silver and also supplied the

affiant with the petitioner's address.

Affiant Kaysen further stated in the

complaint that this informant had given him

information within the previous six months

which’ resulted in three recoveries. of

controlled substances, all of which had been

laboratory tested.

Thus, the affidavit in this case

provided a solid and ample factual support

for a finding that probable cause existed for

the issuance of a search warrant. Because

petitioner raises no unique constitutional

issue, and because the opinion of the

Appellate Court of Illinois was a correct and

accurate application of the law, the petition

for writ of certiorari should be denied.

Secondly, Petitioner claims’ that

because the judge who issued the search

warrant Simultaneously considered the

application for judicial approval to record

Petitioner's telephone conversations, this

somehow rendered his determination less than

neutral and detached. This argument,

however, misunderstands the nature of the

"neutral and detached magistrate" requirement

and is without merit. This Honorable Court

has repeatedly expressed a preference for

searches made pursuant to a search warrant

because the warrant process interposes an

orderly procedure involving judicial

impartiality. United States v. Ventresca,

380 U.S. 102, 85 S. Ct. 741 (1965); Johnson

v. United States, 333 U.S. 10, 68 S. Ct. 367

(1946). That is, the warrant process allows

a neutral and detached magistrate, one not

"engaged in the often competitive enterprise

of ferreting out crime," to make informed

determinations on the issue of probable

cause. Johnson v. United States, 333 U.S. at

14. See e.g., Coolidge v. New Hampshire, 403

U.S. 443, 91 S. Ct. 2022 (1971) (state's

attorney general who was later to serve as

chief prosecutor at trial found not to be

"neutral and detached" for purpose of issuing

search warrant); Connally v. Georgia, 429

U.S. 245, 97 S. Ct. 546 (1977) (unsalaried

justice of the peace who received five

dollars for each warrant issued found not to

be "neutral and detached"). The concern,

therefore, is not the form in which the

information is presented to the magistrate,

but whether the magistrate himself is

sufficiently removed from the prosecution and

police, and is otherwise without incentive,

to make an impartial and informed

determination of whether probable cause

exists to issue a search warrant.

Courts have found that there is no

inherent defect in utilizing multiple

nineteen

affidavits in support of a request for a

search warrant. See United States v. McCoy,

781 F.2d 168 (10th Cir. 1985); State v.

Gamage, 340 A. 2d 1 (Me. 1975); Commonwealth

v. Saleh, 369 Mass. 406, 486 N.E.2d 706

(1985); State v. Boushee, 284 N.W.2d 423

(N.D. 1979). Likewise, there is no inherent

defect in a magistrate being provided with

factual information from affidavits

supporting requests for different types of

warrants. On the contrary, courts in the

various jurisdictions have permitted reliance

upon factS appearing in affidavits for

related arrest and search warrants which were

contemporaneously obtained. See e.g., State

v. Smith, 295 Minn. 65, 203 N.E.2d 348 (1972)

(held that where search warrant affidavit was

insufficient because it failed to state

source of affiant's beliefs, defect was not

fatal because the missing information

_ =

| An

—7

a ea

appeared in a separate affidavit for an

arrest warrant presented to, and

simultaneously considered by, the same

magistrate); Tucker v. State, 403 So.2d 1274

(Miss. 1981) (held that where magistrate had

before him related affidavits for search of

motel room and for search of car, it was

proper for him to consider facts in both

affidavits in determining probable cause for

each of the requested search warrants); State

v. Mondo, 325 N.W.2d 201 (N.D. 1982) (failure

in affidavit for search warrant to state the

date of the offense was cured by its

inclusion in affidavit for arrest warrant

which was filed contemporaneously and

considered by the magistrate).

While this Court has never

explicitly addressed this issue, it has

suggested that the issuing magistrate need

not rely solely on the affidavit supporting a

request. In Aguilar v. Texas, 378 U.S. 108,

89 S. Ct. 584 (1969), this Court considered

the sufficiency of an affidavit which stated

only that the affiant had received "reliable

information from a credible person."

Aguilar, 376 U.S. at 109. In finding no

probable cause existed to issue the search

warrant, the Aguilar court noted that:

[I]n passing on the validity of a

e warrant, the reviewing court may

consider only information brought

to the magistrate's attention [and

that if facts other then’ those

contained in the affidavit] had

been appropriately presented to the

magistrate, this would, of course,

present an entirely different case.

Id. (emphasis added). In the instant case,

the Appellate Court of Illinois found both

the affidavit supporting the request for a

search warrant and the affidavit for judicial

approval to record petitioner's telephone

conversations to be virtually the same.

(Petitioner's Appendix at 7a.) However, even

assuming arguendo that additional information

was contained in either affidavit, this in no

way renders the magistrate less impartial,

but only more informed. Because there is no

intrinsic importance to this second issue

raised by petitioner, and because no conflict

exists among the circuits, the petition for

writ of certiorari should be denied.

In any event, the necessity to

resolve either of these issues is obviated by

this Court's decision in United States v.

Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984).

Leon held that evidence obtained by police

officers acting in reasonable reliance on a

search warrant, valid on its’ face, is

admissible even though that warrant later

proves defective for lack of probable cause

for its issuance. Leon, 468 U.S. 897, 920-

aes This Court reasoned that since the

exlusion of evidence was intended to deter

police from making illegal searches’ and

seizures by taking away the incentive to do

so, that this deterence justification

virtually loses its meaning when police act

in an objectively reasonable manner on what

they believe to be a valid warrant. Id. at

916-19. Petitioner does not claim, nor did

he claim on appeal below, that the officers

had anything other than an _ objectively

reasonable belief that they were acting

pursuant to a validly issued search warrant.

Nor is there any suggestion that the issuing

judge was misled by information that the

affiant knew was false, or that the warrant

was in any way facially defective. See Leon,

468 U.S. at 923. As the petitioner has

failed to raise any important constitutional

issue or present any grounds which would

justify consumption of this Court's time,

this case is unworthy of Supreme Court review

and the instant petition for writ of

certiorari should be denied.

CONCLUSION

For all the foregoing’ reasons,

Respondent respectfully prays that this

Honorable Court deny the instant Petition for

Writ of Certiorari.

Respectfully submitted,

NEIL F. HARTIGAN,