# Opposition Brief — Silver v. Illinois

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0741%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 963

## Text

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.

ii

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

iv

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

14

14

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

10

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

ll

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

Lz

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

13

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

14

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

15

_ =
| An

he

:

—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

16

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.

17

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

18

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

19

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.

20

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,
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.

ei

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0741%3A2. Public record. Not legal advice.