IL: Franks challenge actually succeeds on alibi

Defendant’s alibi affidavits from himself and two witnesses that he was not home and could not have sold drugs to the CI was sufficient to require a Franks hearing and the evidence at the hearing supported the trial court’s suppression order under Franks. People v. Caro, 2008 Ill. App. LEXIS 294 (1st Dist. April 3, 2008), released for publication May 27, 2008:

Similarly, in the present case, defendant filed an affidavit stating that he was at work on the day the informant stated he made the purchase and that when he came home he ate dinner and watched television and went to bed. He denied selling or using any illegal drugs on the day in question. Defendant’s two roommates also filed affidavits in support, stating that when defendant arrived home from work no one other than he and his roommates were present. Both roommates denied seeing defendant selling illegal drugs at the apartment on the day in question.

As in Lucente, defendant’s showing was essentially an alibi, and he corroborated that alibi with two affidavits besides his own. All three affidavits are sufficiently detailed so as to subject the affiants to the penalties of perjury if they are untrue. Taken together, the affidavits constitute a substantial preliminary showing that a false statement implicating defendant in the drug transaction was knowingly, intentionally, or recklessly included by the officer in the warrant affidavit, and that the allegedly false statement was necessary to the finding of probable cause. Based on these affidavits, the trial court did not abuse its discretion in determining that a Franks hearing was warranted.

The State contends that defendant’s alibi is unavailing and did not warrant a Franks hearing, because his roommates could not account for defendant’s whereabouts from 6:45 a.m. until 2 p.m., or from 8 p.m. onward. The State’s argument would have merit if the informant had stated that the drug transaction had occurred during those time periods. However, the informant here merely stated that he had purchased drugs from defendant on December 21, 2004, but he never provided a time of day when the transaction occurred. In response, defendant filed an affidavit stating that he was at work all day on December 21, then went home, ate, and went to bed; his roommates provided affidavits confirming that when they returned home from work in the afternoon, defendant was not there, and that defendant came home near bed time and that they saw no drug transactions. The trial court could conclude from all these affidavits that an evidentiary Franks hearing was warranted. We find no abuse of discretion in the granting of the hearing.