McCullough v. Knight
Annotate this Case
THIRD DIVISION
November 26, 1997
No. 1-96-0775
BERNARD J. MCCULLOUGH,
Plaintiff-Appellant,
v.
JOHN KNIGHT, ADOLPHUS HALL, PHILIP
BERNSTEIN, and THE CITY OF CHICAGO,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 95 CH 11220
Honorable
John K. Madden,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
The issue presented for review in this appeal is whether
evidence suppressed in a criminal case may be introduced later in
an administrative hearing.
Bernard McCullough sought administrative review of a $500
fine imposed by the Chicago department of revenue for an
unregistered firearm recovered from his vehicle. The circuit
court upheld the department of revenue's decision. McCullough
appeals. We affirm.
Police officer John Knight arrested McCullough on May 1,
1995, searched his vehicle, and seized a handgun. Two
proceedings followed. The first was a criminal prosecution of
McCullough for failure to register the firearm in violation of
section 8-20-040 of the Chicago Municipal Code, Chicago Municipal
Code 8-20-040 (amended July 7, 1992). The circuit court
suppressed evidence of the recovered weapon when the city
admitted that Knight lacked probable cause to search McCullough's
vehicle. The court discharged McCullough but ordered the weapon
confiscated and destroyed.
There followed an administrative hearing before the
department of revenue. McCullough's vehicle had been seized by
Officers Knight and Dougherty at the time of his arrest in
accordance with section 8-20-015 of the Chicago Municipal Code.
Chicago Municipal Code, 8-20-015 (amended July 14, 1993).
Section 8-20-015 provides:
"(a) The owner of record of any motor vehicle that
contains an unregistered firearm or a firearm that is
not broken down in a nonfunctioning state shall be
liable to the city for an administrative penalty of
$500.00 plus any towing and storage fees applicable
under Section 9-92-080. Any such vehicle shall be
subject to seizure and impoundment pursuant to this
section. ***
(b) Whenever a police officer has probable cause
to believe that a vehicle is subject to seizure and
impoundment pursuant to this section, the police
officer shall provide for the towing of the vehicle to
a facility controlled by the city or its agents. ***
[T]he police officer shall notify any person
identifying himself as the owner of the vehicle *** at
the time of the alleged violation, of the fact of the
seizure and of the vehicle owner's right to request a
vehicle impoundment hearing ***.
(c) Whenever the owner of record of a vehicle
seized pursuant to this section makes a [written]
request *** for a vehicle impoundment hearing within 12
hours after the seizure, a hearing officer of the
department of revenue shall conduct the vehicle
impoundment hearing within 24 hours after the seizure
***.*** If, after the hearing, the hearing officer
determines that there is probable cause to believe that
the vehicle is subject to seizure and impoundment under
subsection (a), the hearing officer shall order the
continued impoundment of the vehicle *** unless the
owner of the vehicle posts *** a cash bond in the
amount of $500.00 plus any applicable towing and
storage fees.
(d) Within 10 days after a vehicle is seized and
impounded pursuant to this section, the city shall
notify *** the owner of record of the date, time and
location of a hearing that will be conducted pursuant
to this section. *** If, after the hearing, the
hearing officer determines by a preponderance of
evidence that the vehicle contained an unregistered
firearm or a firearm not broken down in a
nonfunctioning state, *** the hearing officer shall
enter an order finding the owner of record of the
vehicle civilly liable to the city for an
administrative penalty in the amount of $500.00. ***
If the hearing officer finds that no such violation
occurred, the hearing officer shall order the immediate
return of the owner's vehicle or cash bond."
McCullough paid the $500 bond for the release of his
vehicle. He then filed a motion to dismiss the impoundment
proceedings and for return of the $500, arguing that the search
of his vehicle violated the fourth and fifth amendments of the
United States Constitution (U.S. Const. amends. V, XIV) and
article 1, section 2, of the Illinois Constitution (Ill. Const.
1970, art. I, 2).
McCullough argued at the hearing that evidence of the
unregistered firearm was inadmissible in the impoundment
proceedings because it had been suppressed in the criminal case.
The hearing officer disagreed and held that McCullough was
subject to the $500 administrative penalty.
McCullough filed a complaint in circuit court for
administrative review. The circuit court affirmed the hearing
officer's decision.
We first note that McCullough filed a motion to supplement
the record on appeal, under Supreme Court Rule 329 (134 Ill. 2d
R. 329), with a transcript of the hearing before the department
of revenue. The motion was granted. The transcript was not
certified by the trial court and had not been filed in or
considered by the trial court. We will not consider references
to this transcript because "documents which are not a part of the
trial court record and were not considered by the trial court
will not be considered on appeal." State Farm Mutual Automobile
Insurance Co. v. Stuckey, 112 Ill. App. 3d 647, 649, 445 N.E.2d 791 (1983). The failure to file the transcript in the trial
court would allow us to affirm the hearing officer without
further analysis. See Jenkins v. Wu, 102 Ill. 2d 468, 482, 468 N.E.2d 1162 (1984). The issue before us, however, is a question
of law reviewed de novo. The state of the record is such that we
are able to address the question of law. See Dubey v. Abam
Building Corp., 266 Ill. App. 3d 44, 46, 639 N.E.2d 215 (1994)
(incomplete record does not preclude review where issue can be
decided without complete record).
On appeal, McCullough argues that under both the United
States and Illinois Constitutions the unconstitutionally seized
firearm must be suppressed. But he cites no authority, as
required under Illinois Supreme Court Rule 341, for his claim
under the Illinois Constitution. 155 Ill. 2d R. 341(e)(7);
Estate of Strocchia v. City of Chicago, 284 Ill. App. 3d 891,
901, 672 N.E.2d 914 (1996). So we will only address his claim
under the United States Constitution. We are aware that the
exclusionary rule is applicable to state criminal trials. Mapp
v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090, 81 S. Ct. 1684, 1691 (1961).
McCullough contends that the city's "argument" that "the
$500 penalty is not a sufficient amount to merit constitutional
[protection] is *** ludicrous." But the city does not argue that
McCullough is not constitutionally protected. The city correctly
notes that whether the exclusionary sanction is proper in a
particular case is "'an issue separate from the question whether
the [f]ourth [a]mendment rights of the party seeking to invoke
the rule were violated by police conduct.'" United States v.
Leon, 468 U.S. 897, 906, 82 L. Ed. 2d 677, 688, 104 S. Ct. 3405,
3412 (1984), quoting Illinois v. Gates, 462 U.S. 213, 223, 76 L. Ed. 2d 527, 538-39, 103 S. Ct. 2317, 2324 (1983). The point the
city makes is that the severity of the penalty is an element to
be considered in the balancing test employed to invoke or relax
the exclusionary rule. McCullough labels this point "ludicrous"
without addressing it. Such a strategy of appellate advocacy on
an issue of some significance is more than a minor irritant for
those who must read his brief.
McCullough argues that the department of revenue erred in
relying on evidence obtained during an unconstitutional search.
In support of his contention, McCullough cites Boyd v. United
States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886).
McCullough argues that the hearing officer and circuit court's
decisions were "repugnant to and violative of over two hundred
years [sic] of *** Supreme Court precedent of Boyd, which has
been religiously followed without deviation." Miscounting the
years and misstating the precedential history of Boyd aside, the
case is relevant to the issue before us, though far from
dispositive.
Boyd was a forfeiture action brought by the United States
against an importer of 35 cases of plate glass allegedly imported
without payment of a customs duty. The penalty faced by the
importer was forfeiture of the glass. Relying on an 1874 revenue
statute, the trial court ordered the importer to produce company
records that would aid the United States in its case against him.
The Supreme Court held that the compulsory production of a
person's private papers for use against him in a civil forfeiture
proceeding violates both the unreasonable search proscription of
the fourth amendment and the self-incrimination proscription of
the fifth amendment. The Court further held that the
unconstitutionally seized records could not be used against the
defendant. Boyd, 116 U.S. at 633-35, 638, 29 L. Ed. at 752-53,
753, 6 S. Ct. at 533-35, 536.
The city argues that Boyd is distinguishable. Boyd involved
a forfeiture of property of the kind that the Supreme Court has
found to be punitive. See One 1958 Plymouth Sedan v.
Pennsylvania, 380 U.S. 693, 701-02, 14 L. Ed. 2d 170, 175, 85 S. Ct. 1246, 1251 (1965); Boyd 116 U.S. at 634, 29 L. Ed. at 752, 6 S. Ct. at 534. McCullough simply gives us an extensive quotation
from Boyd; he does not explain why the $500 fine and temporary
impoundment here are comparable to the complete property
forfeiture in Boyd. Even if the fine here could be characterized
as punitive, Boyd is not the case from which to reason.
The city cites several Supreme Court cases that trace the
evolution of the exclusionary rule under the fourth amendment and
establish the appropriate framework for analyzing this issue.
See Immunization & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984); Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405; United States v.
Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976);
United States v. Calandra, 414 U.S. 338, 38 L. Ed. 561, 94 S. Ct. 613 (1974). The city points out that, despite McCullough's claim
that Boyd has been "religiously followed," McCullough has ignored
this evolution of Supreme Court use of the exclusionary rule. We
agree. McCullough cites to Boyd as if it were the last and only
word on the subject. In fact there have been thousands of words
on the subject, all of which McCullough's brief ignores. See
Janis, 428 U.S. at 446 n.15, 49 L. Ed. 2d at 1056 n.15, 96 S. Ct.
at 3028 n.15 (noting the multitude of opinions addressing the
exclusionary rule).
Since Boyd, the Supreme Court has held that "[d]espite its
broad deterrent purpose, the exclusionary rule has never been
interpreted to proscribe the use of illegally seized evidence in
all proceedings or against all persons." Calandra, 414 U.S. at
348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620. Application of the
exclusionary rule has been restricted to those areas where the
remedial objectives of deterring unlawful police conduct are
"most efficaciously served." Calandra, 414 U.S. at 348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620. With this language in mind, the
Supreme Court has developed a balancing test to measure the
appropriate use of the exclusionary rule. We must balance the
benefits of applying the exclusionary rule against the cost "on
the societal interest of law enforcement." Janis, 428 U.S. at
448, 49 L. Ed. 2d at 1058, 96 S. Ct. at 3029. See also Lopez-
Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787, 104 S. Ct. at
3985; Calandra, 338 U.S. at 349, 38 L. Ed. 2d at 572, 94 S. Ct.
at 620-21.
The Supreme Court has refused to extend the exclusionary
rule beyond criminal prosecutions in numerous cases. See, e.g.,
Lopez-Mendoza, 468 U.S. at 1050, 82 L. Ed. 2d at 793, 104 S. Ct.
at 3489 (deportation proceedings); Stone v. Powell, 428 U.S. 465,
493-94, 49 L. Ed. 2d 1067, 1087-88, 96 S. Ct. 3037, 3052
(1976)(federal habeas corpus proceedings); Janis, 428 U.S. at
453-54, 49 L. Ed. 2d at 1060, 96 S. Ct. at 3031-32 (federal tax
assessment proceeding); Calandra, 414 U.S. 338, 38 L. Ed. 561, 94 S. Ct. 613 (grand jury proceedings).
Illinois courts have also refused to extend the exclusionary
rule to some proceedings. See People v. Dowery, 62 Ill. 2d 200,
340 N.E.2d 529 (1975) (probation revocation proceedings); Grames
v. Illinois State Police, 254 Ill. App. 3d 191, 625 N.E.2d 945
(1993)(police department administrative discharge proceedings);
People v. Grubb, 143 Ill. App. 3d 822, 493 N.E.2d 699 (1986)
(court supervision revocation proceedings).
Plaintiff's Boyd analysis is the "absolutist" argument of
the type clearly rejected by the Illinois Supreme Court in People
v. Dowery, 62 Ill. 2d 200, 340 N.E.2d 529. In Dowery, our
supreme court addressed whether evidence suppressed in
proceedings on a substantive criminal offense could be used to
revoke probation. In refusing to apply the exclusionary rule,
our supreme court discussed the policies of the probation system
and the interests of society. The court concluded that "[m]erely
because there may exist a technical deficiency in police conduct,
a trial court should not be forced to release a defendant and
return him to a probationary status where there is patent
evidence of a serious probation violation." Dowery, 62 Ill. 2d
at 206. The court rejected the defendant's argument that failure
to apply the exclusionary rule would result in police harassment
of probationers, since there was no evidence of harassment in
that case, and courts remain able to impose sanctions to deter
harassment if demonstrated in a particular case. Dowery, 62 Ill. 2d at 206-07.
The echo of a "no exceptions" approach is seen in Mr.
Justice Goldenhersh's dissent in Dowery. Goldenhersh reasoned
that "[u]nless the fourth amendment *** [is] to be reduced 'to a
form of words' [citation] [it] must be interpreted to mean that
evidence seized in violation of [its] provisions is not only not
to be used in 'criminal prosecution' but 'that it shall not be
used at all.' [Citation.]" Dowery, 62 Ill. 2d at 209
(Goldenhersh, J. dissenting). But the Illinois Supreme Court has
rejected this approach, as has the United States Supreme Court.
In examining the costs of applying the exclusionary rule
here, we find that the department of revenue would be unable to
consider valuable and relevant evidence that would impede the
truth-finding function of the hearing officer, as is usually the
case when the exclusionary rule is employed. See Leon, 468 U.S.
at 907, 82 L. Ed. at 688, 104 S. Ct. at 3412; Janis, 428 U.S. at
447, 49 L. Ed. 2d at 1057, 96 S. Ct. at 3029. This would
interfere with the public policy behind the administrative
proceeding. The impoundment of the vehicle and the charging of
costs to plaintiff are part of a municipal policy with which no
one can quarrel: the elimination of unlawful weapons from the
streets of the city. Applying the exclusionary rule would
clearly hamper the city's ability to shift the costs of this
endeavor to vehicle owners whose vehicles are being used to
transport unlawful weapons.
The city argues that the application of the exclusionary
rule to the department of revenue proceedings would add little
deterrent effect beyond that already imposed: excluding the
illegally obtained evidence in a criminal or quasi-criminal
proceeding, such as the one brought in the circuit court here.
See Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021. In
Janis, the United States Supreme Court held that the constitution
did not require application of the exclusionary rule in a civil
tax proceeding brought by the federal government. The Court
reasoned that police officers were sufficiently "punished" by
exclusion of evidence in criminal prosecutions because the
exclusion frustrates the criminal enforcement process, which it
was the duty and concern of police officers to ensure. Janis,
428 U.S. at 448, 49 L. Ed. 2d at 1057, 96 S. Ct. at 3029.
We find Janis persuasive. McCullough makes no argument that
officers in this situation would not be sufficiently deterred by
the threat of suppression of evidence in the criminal or quasi-
criminal prosecutions. McCullough has not shown, and we do not
detect, an added deterrent effect in extending the exclusionary
rule to the administrative proceeding that would warrant the cost
to society: diminishing the power of the city to rid the city of
illegal firearms and imposing on those who possess them the cost
of reasonable steps to implement the policy. The circuit court
did not err in finding the exclusionary rule inapplicable to the
department of revenue proceedings.
McCullough cites other cases for the proposition that the
evidence should be excluded: People v. Albea, 2 Ill. 2d 317, 118 N.E.2d 277 (1954), People v. Schmoll, 383 Ill. 280, 48 N.E.2d 933
(1943), and People v. Martin, 382 Ill. 192, 446 N.E.2d 997
(1942). These cases are not on point. They are criminal cases
that do not address whether the exclusionary rule may be invoked
in an administrative proceeding. And all of them predate People
v. Dowery by at least 20 years.
McCullough argues that People v. Buonavolanto, 238 Ill. App.
3d 665, 606 N.E.2d 509 (1992), provides "additional authority"
supporting a reversal. Again, McCullough's argument merely
consists of an extensive block quotation. McCullough's apparent
argument is that the city is collaterally estopped from bringing
the administrative action to impose on McCullough the costs of
implementing an illegal firearms ordinance. The doctrine of
collateral estoppel provides that an issue raised and decided by
a court of competent jurisdiction cannot be relitigated in a
later action between the same parties. Suttles v. Vogel, 126 Ill. 2d 186, 195, 533 N.E.2d 901 (1988). For the doctrine of
collateral estoppel to apply, the issue being litigated in the
latter suit must be identical to the one decided in the former.
Talarico v. Dunlap, No. 81459, slip op. at 4 (September 11,
1997).
Buonavolanto held that the State was collaterally estopped
from litigating an issue in a criminal prosecution that had
already been decided against the State in a civil forfeiture
proceeding. 238 Ill. App. 3d at 670-73. This case is readily
distinguishable. In the prosecution of McCullough, the circuit
court only decided the factual issue of whether Knight's seizure
was unconstitutional, a fact conceded by the city. Because it
was a criminal proceeding, the illegally seized weapon was
excluded. The circuit court had no reason to address the
relevant legal question here: whether an illegally seized weapon
must be excluded in a proceeding designed to shift the cost of
gun control to owners of vehicles used to transport unregistered
weapons.
Affirmed.
COUSINS, P.J., concurs. LEAVITT, J., specially concurring:
I concur in the decision reached by my colleagues in this
case, inasmuch as the decision accurately states the current
state of the law in Illinois regarding application (or non-
application) of the exclusionary rule in settings such as this.
However, I believe that the law, as it now stands, fails to
recognize one of the two historical justifications of the
exclusionary rule; namely, the "imperative of judicial
integrity." See Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 1447, 4 L. Ed. 2d 1669, 1680. I would adopt the
reasoning of Justice Goldenhersh in People v. Dowery, 62 Ill. 2d 200, 209-10, 40 N.E.2d 529 (1975) (Goldenhersh, J., dissenting)
that evidence seized in violation of the fourth amendment to the
Federal Constitution and section 6 of article I of our State
Constitution should not be used against an individual in any
proceeding:
"'Decency, security and liberty alike demand that
government officials shall be subjected to the same
rules of conduct that are commends to the citizen. In
a government of laws, existence of the government will
be imperilled if it fails to observe the law
scrupulously. Our Government is the potent, the
omnipresent teacher. For good or for ill, it teaches
the whole people by its example. Crime is contagious.
If the government becomes a law-breaker, it breeds
contempt for law; it invites every man to become a law
unto himself; it invites anarchy. To declare that in
the administration of the criminal law the end
justifies the means--to declare that the government may
commit crimes in order to secure the conviction of a
private criminal--would bring terrible retribution.
Against that pernicious doctrine this court should
resolutely set its face.'" Dowery, 62 Ill. 2d at 209-
10, 40 N.E.2d 529, quoting Olmstead v. United States,
277 U.S. 438, 485, 48 S. Ct. 564, 575, 72 L. Ed. 944,
959-60 (1928) (Brandeis, J., dissenting).
For these reasons, I specially concur.
November 26, 1997
No. 1-96-0775
BERNARD J. MCCULLOUGH,
Plaintiff-Appellant,
v.
JOHN KNIGHT, ADOLPHUS HALL, PHILIP
BERNSTEIN, and THE CITY OF CHICAGO,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 95 CH 11220
Honorable
John K. Madden,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
The issue presented for review in this appeal is whether
evidence suppressed in a criminal case may be introduced later in
an administrative hearing.
Bernard McCullough sought administrative review of a $500
fine imposed by the Chicago department of revenue for an
unregistered firearm recovered from his vehicle. The circuit
court upheld the department of revenue's decision. McCullough
appeals. We affirm.
Police officer John Knight arrested McCullough on May 1,
1995, searched his vehicle, and seized a handgun. Two
proceedings followed. The first was a criminal prosecution of
McCullough for failure to register the firearm in violation of
section 8-20-040 of the Chicago Municipal Code, Chicago Municipal
Code 8-20-040 (amended July 7, 1992). The circuit court
suppressed evidence of the recovered weapon when the city
admitted that Knight lacked probable cause to search McCullough's
vehicle. The court discharged McCullough but ordered the weapon
confiscated and destroyed.
There followed an administrative hearing before the
department of revenue. McCullough's vehicle had been seized by
Officers Knight and Dougherty at the time of his arrest in
accordance with section 8-20-015 of the Chicago Municipal Code.
Chicago Municipal Code, 8-20-015 (amended July 14, 1993).
Section 8-20-015 provides:
"(a) The owner of record of any motor vehicle that
contains an unregistered firearm or a firearm that is
not broken down in a nonfunctioning state shall be
liable to the city for an administrative penalty of
$500.00 plus any towing and storage fees applicable
under Section 9-92-080. Any such vehicle shall be
subject to seizure and impoundment pursuant to this
section. ***
(b) Whenever a police officer has probable cause
to believe that a vehicle is subject to seizure and
impoundment pursuant to this section, the police
officer shall provide for the towing of the vehicle to
a facility controlled by the city or its agents. ***
[T]he police officer shall notify any person
identifying himself as the owner of the vehicle *** at
the time of the alleged violation, of the fact of the
seizure and of the vehicle owner's right to request a
vehicle impoundment hearing ***.
(c) Whenever the owner of record of a vehicle
seized pursuant to this section makes a [written]
request *** for a vehicle impoundment hearing within 12
hours after the seizure, a hearing officer of the
department of revenue shall conduct the vehicle
impoundment hearing within 24 hours after the seizure
***.*** If, after the hearing, the hearing officer
determines that there is probable cause to believe that
the vehicle is subject to seizure and impoundment under
subsection (a), the hearing officer shall order the
continued impoundment of the vehicle *** unless the
owner of the vehicle posts *** a cash bond in the
amount of $500.00 plus any applicable towing and
storage fees.
(d) Within 10 days after a vehicle is seized and
impounded pursuant to this section, the city shall
notify *** the owner of record of the date, time and
location of a hearing that will be conducted pursuant
to this section. *** If, after the hearing, the
hearing officer determines by a preponderance of
evidence that the vehicle contained an unregistered
firearm or a firearm not broken down in a
nonfunctioning state, *** the hearing officer shall
enter an order finding the owner of record of the
vehicle civilly liable to the city for an
administrative penalty in the amount of $500.00. ***
If the hearing officer finds that no such violation
occurred, the hearing officer shall order the immediate
return of the owner's vehicle or cash bond."
McCullough paid the $500 bond for the release of his
vehicle. He then filed a motion to dismiss the impoundment
proceedings and for return of the $500, arguing that the search
of his vehicle violated the fourth and fifth amendments of the
United States Constitution (U.S. Const. amends. V, XIV) and
article 1, section 2, of the Illinois Constitution (Ill. Const.
1970, art. I, 2).
McCullough argued at the hearing that evidence of the
unregistered firearm was inadmissible in the impoundment
proceedings because it had been suppressed in the criminal case.
The hearing officer disagreed and held that McCullough was
subject to the $500 administrative penalty.
McCullough filed a complaint in circuit court for
administrative review. The circuit court affirmed the hearing
officer's decision.
We first note that McCullough filed a motion to supplement
the record on appeal, under Supreme Court Rule 329 (134 Ill. 2d
R. 329), with a transcript of the hearing before the department
of revenue. The motion was granted. The transcript was not
certified by the trial court and had not been filed in or
considered by the trial court. We will not consider references
to this transcript because "documents which are not a part of the
trial court record and were not considered by the trial court
will not be considered on appeal." State Farm Mutual Automobile
Insurance Co. v. Stuckey, 112 Ill. App. 3d 647, 649, 445 N.E.2d 791 (1983). The failure to file the transcript in the trial
court would allow us to affirm the hearing officer without
further analysis. See Jenkins v. Wu, 102 Ill. 2d 468, 482, 468 N.E.2d 1162 (1984). The issue before us, however, is a question
of law reviewed de novo. The state of the record is such that we
are able to address the question of law. See Dubey v. Abam
Building Corp., 266 Ill. App. 3d 44, 46, 639 N.E.2d 215 (1994)
(incomplete record does not preclude review where issue can be
decided without complete record).
On appeal, McCullough argues that under both the United
States and Illinois Constitutions the unconstitutionally seized
firearm must be suppressed. But he cites no authority, as
required under Illinois Supreme Court Rule 341, for his claim
under the Illinois Constitution. 155 Ill. 2d R. 341(e)(7);
Estate of Strocchia v. City of Chicago, 284 Ill. App. 3d 891,
901, 672 N.E.2d 914 (1996). So we will only address his claim
under the United States Constitution. We are aware that the
exclusionary rule is applicable to state criminal trials. Mapp
v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090, 81 S. Ct. 1684, 1691 (1961).
McCullough contends that the city's "argument" that "the
$500 penalty is not a sufficient amount to merit constitutional
[protection] is *** ludicrous." But the city does not argue that
McCullough is not constitutionally protected. The city correctly
notes that whether the exclusionary sanction is proper in a
particular case is "'an issue separate from the question whether
the [f]ourth [a]mendment rights of the party seeking to invoke
the rule were violated by police conduct.'" United States v.
Leon, 468 U.S. 897, 906, 82 L. Ed. 2d 677, 688, 104 S. Ct. 3405,
3412 (1984), quoting Illinois v. Gates, 462 U.S. 213, 223, 76 L. Ed. 2d 527, 538-39, 103 S. Ct. 2317, 2324 (1983). The point the
city makes is that the severity of the penalty is an element to
be considered in the balancing test employed to invoke or relax
the exclusionary rule. McCullough labels this point "ludicrous"
without addressing it. Such a strategy of appellate advocacy on
an issue of some significance is more than a minor irritant for
those who must read his brief.
McCullough argues that the department of revenue erred in
relying on evidence obtained during an unconstitutional search.
In support of his contention, McCullough cites Boyd v. United
States, 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886).
McCullough argues that the hearing officer and circuit court's
decisions were "repugnant to and violative of over two hundred
years [sic] of *** Supreme Court precedent of Boyd, which has
been religiously followed without deviation." Miscounting the
years and misstating the precedential history of Boyd aside, the
case is relevant to the issue before us, though far from
dispositive.
Boyd was a forfeiture action brought by the United States
against an importer of 35 cases of plate glass allegedly imported
without payment of a customs duty. The penalty faced by the
importer was forfeiture of the glass. Relying on an 1874 revenue
statute, the trial court ordered the importer to produce company
records that would aid the United States in its case against him.
The Supreme Court held that the compulsory production of a
person's private papers for use against him in a civil forfeiture
proceeding violates both the unreasonable search proscription of
the fourth amendment and the self-incrimination proscription of
the fifth amendment. The Court further held that the
unconstitutionally seized records could not be used against the
defendant. Boyd, 116 U.S. at 633-35, 638, 29 L. Ed. at 752-53,
753, 6 S. Ct. at 533-35, 536.
The city argues that Boyd is distinguishable. Boyd involved
a forfeiture of property of the kind that the Supreme Court has
found to be punitive. See One 1958 Plymouth Sedan v.
Pennsylvania, 380 U.S. 693, 701-02, 14 L. Ed. 2d 170, 175, 85 S. Ct. 1246, 1251 (1965); Boyd 116 U.S. at 634, 29 L. Ed. at 752, 6 S. Ct. at 534. McCullough simply gives us an extensive quotation
from Boyd; he does not explain why the $500 fine and temporary
impoundment here are comparable to the complete property
forfeiture in Boyd. Even if the fine here could be characterized
as punitive, Boyd is not the case from which to reason.
The city cites several Supreme Court cases that trace the
evolution of the exclusionary rule under the fourth amendment and
establish the appropriate framework for analyzing this issue.
See Immunization & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984); Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405; United States v.
Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976);
United States v. Calandra, 414 U.S. 338, 38 L. Ed. 561, 94 S. Ct. 613 (1974). The city points out that, despite McCullough's claim
that Boyd has been "religiously followed," McCullough has ignored
this evolution of Supreme Court use of the exclusionary rule. We
agree. McCullough cites to Boyd as if it were the last and only
word on the subject. In fact there have been thousands of words
on the subject, all of which McCullough's brief ignores. See
Janis, 428 U.S. at 446 n.15, 49 L. Ed. 2d at 1056 n.15, 96 S. Ct.
at 3028 n.15 (noting the multitude of opinions addressing the
exclusionary rule).
Since Boyd, the Supreme Court has held that "[d]espite its
broad deterrent purpose, the exclusionary rule has never been
interpreted to proscribe the use of illegally seized evidence in
all proceedings or against all persons." Calandra, 414 U.S. at
348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620. Application of the
exclusionary rule has been restricted to those areas where the
remedial objectives of deterring unlawful police conduct are
"most efficaciously served." Calandra, 414 U.S. at 348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620. With this language in mind, the
Supreme Court has developed a balancing test to measure the
appropriate use of the exclusionary rule. We must balance the
benefits of applying the exclusionary rule against the cost "on
the societal interest of law enforcement." Janis, 428 U.S. at
448, 49 L. Ed. 2d at 1058, 96 S. Ct. at 3029. See also Lopez-
Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787, 104 S. Ct. at
3985; Calandra, 338 U.S. at 349, 38 L. Ed. 2d at 572, 94 S. Ct.
at 620-21.
The Supreme Court has refused to extend the exclusionary
rule beyond criminal prosecutions in numerous cases. See, e.g.,
Lopez-Mendoza, 468 U.S. at 1050, 82 L. Ed. 2d at 793, 104 S. Ct.
at 3489 (deportation proceedings); Stone v. Powell, 428 U.S. 465,
493-94, 49 L. Ed. 2d 1067, 1087-88, 96 S. Ct. 3037, 3052
(1976)(federal habeas corpus proceedings); Janis, 428 U.S. at
453-54, 49 L. Ed. 2d at 1060, 96 S. Ct. at 3031-32 (federal tax
assessment proceeding); Calandra, 414 U.S. 338, 38 L. Ed. 561, 94 S. Ct. 613 (grand jury proceedings).
Illinois courts have also refused to extend the exclusionary
rule to some proceedings. See People v. Dowery, 62 Ill. 2d 200,
340 N.E.2d 529 (1975) (probation revocation proceedings); Grames
v. Illinois State Police, 254 Ill. App. 3d 191, 625 N.E.2d 945
(1993)(police department administrative discharge proceedings);
People v. Grubb, 143 Ill. App. 3d 822, 493 N.E.2d 699 (1986)
(court supervision revocation proceedings).
Plaintiff's Boyd analysis is the "absolutist" argument of
the type clearly rejected by the Illinois Supreme Court in People
v. Dowery, 62 Ill. 2d 200, 340 N.E.2d 529. In Dowery, our
supreme court addressed whether evidence suppressed in
proceedings on a substantive criminal offense could be used to
revoke probation. In refusing to apply the exclusionary rule,
our supreme court discussed the policies of the probation system
and the interests of society. The court concluded that "[m]erely
because there may exist a technical deficiency in police conduct,
a trial court should not be forced to release a defendant and
return him to a probationary status where there is patent
evidence of a serious probation violation." Dowery, 62 Ill. 2d
at 206. The court rejected the defendant's argument that failure
to apply the exclusionary rule would result in police harassment
of probationers, since there was no evidence of harassment in
that case, and courts remain able to impose sanctions to deter
harassment if demonstrated in a particular case. Dowery, 62 Ill. 2d at 206-07.
The echo of a "no exceptions" approach is seen in Mr.
Justice Goldenhersh's dissent in Dowery. Goldenhersh reasoned
that "[u]nless the fourth amendment *** [is] to be reduced 'to a
form of words' [citation] [it] must be interpreted to mean that
evidence seized in violation of [its] provisions is not only not
to be used in 'criminal prosecution' but 'that it shall not be
used at all.' [Citation.]" Dowery, 62 Ill. 2d at 209
(Goldenhersh, J. dissenting). But the Illinois Supreme Court has
rejected this approach, as has the United States Supreme Court.
In examining the costs of applying the exclusionary rule
here, we find that the department of revenue would be unable to
consider valuable and relevant evidence that would impede the
truth-finding function of the hearing officer, as is usually the
case when the exclusionary rule is employed. See Leon, 468 U.S.
at 907, 82 L. Ed. at 688, 104 S. Ct. at 3412; Janis, 428 U.S. at
447, 49 L. Ed. 2d at 1057, 96 S. Ct. at 3029. This would
interfere with the public policy behind the administrative
proceeding. The impoundment of the vehicle and the charging of
costs to plaintiff are part of a municipal policy with which no
one can quarrel: the elimination of unlawful weapons from the
streets of the city. Applying the exclusionary rule would
clearly hamper the city's ability to shift the costs of this
endeavor to vehicle owners whose vehicles are being used to
transport unlawful weapons.
The city argues that the application of the exclusionary
rule to the department of revenue proceedings would add little
deterrent effect beyond that already imposed: excluding the
illegally obtained evidence in a criminal or quasi-criminal
proceeding, such as the one brought in the circuit court here.
See Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021. In
Janis, the United States Supreme Court held that the constitution
did not require application of the exclusionary rule in a civil
tax proceeding brought by the federal government. The Court
reasoned that police officers were sufficiently "punished" by
exclusion of evidence in criminal prosecutions because the
exclusion frustrates the criminal enforcement process, which it
was the duty and concern of police officers to ensure. Janis,
428 U.S. at 448, 49 L. Ed. 2d at 1057, 96 S. Ct. at 3029.
We find Janis persuasive. McCullough makes no argument that
officers in this situation would not be sufficiently deterred by
the threat of suppression of evidence in the criminal or quasi-
criminal prosecutions. McCullough has not shown, and we do not
detect, an added deterrent effect in extending the exclusionary
rule to the administrative proceeding that would warrant the cost
to society: diminishing the power of the city to rid the city of
illegal firearms and imposing on those who possess them the cost
of reasonable steps to implement the policy. The circuit court
did not err in finding the exclusionary rule inapplicable to the
department of revenue proceedings.
McCullough cites other cases for the proposition that the
evidence should be excluded: People v. Albea, 2 Ill. 2d 317, 118 N.E.2d 277 (1954), People v. Schmoll, 383 Ill. 280, 48 N.E.2d 933
(1943), and People v. Martin, 382 Ill. 192, 446 N.E.2d 997
(1942). These cases are not on point. They are criminal cases
that do not address whether the exclusionary rule may be invoked
in an administrative proceeding. And all of them predate People
v. Dowery by at least 20 years.
McCullough argues that People v. Buonavolanto, 238 Ill. App.
3d 665, 606 N.E.2d 509 (1992), provides "additional authority"
supporting a reversal. Again, McCullough's argument merely
consists of an extensive block quotation. McCullough's apparent
argument is that the city is collaterally estopped from bringing
the administrative action to impose on McCullough the costs of
implementing an illegal firearms ordinance. The doctrine of
collateral estoppel provides that an issue raised and decided by
a court of competent jurisdiction cannot be relitigated in a
later action between the same parties. Suttles v. Vogel, 126 Ill. 2d 186, 195, 533 N.E.2d 901 (1988). For the doctrine of
collateral estoppel to apply, the issue being litigated in the
latter suit must be identical to the one decided in the former.
Talarico v. Dunlap, No. 81459, slip op. at 4 (September 11,
1997).
Buonavolanto held that the State was collaterally estopped
from litigating an issue in a criminal prosecution that had
already been decided against the State in a civil forfeiture
proceeding. 238 Ill. App. 3d at 670-73. This case is readily
distinguishable. In the prosecution of McCullough, the circuit
court only decided the factual issue of whether Knight's seizure
was unconstitutional, a fact conceded by the city. Because it
was a criminal proceeding, the illegally seized weapon was
excluded. The circuit court had no reason to address the
relevant legal question here: whether an illegally seized weapon
must be excluded in a proceeding designed to shift the cost of
gun control to owners of vehicles used to transport unregistered
weapons.
Affirmed.
COUSINS, P.J., concurs. LEAVITT, J., specially concurring:
I concur in the decision reached by my colleagues in this
case, inasmuch as the decision accurately states the current
state of the law in Illinois regarding application (or non-
application) of the exclusionary rule in settings such as this.
However, I believe that the law, as it now stands, fails to
recognize one of the two historical justifications of the
exclusionary rule; namely, the "imperative of judicial
integrity." See Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 1447, 4 L. Ed. 2d 1669, 1680. I would adopt the
reasoning of Justice Goldenhersh in People v. Dowery, 62 Ill. 2d 200, 209-10, 40 N.E.2d 529 (1975) (Goldenhersh, J., dissenting)
that evidence seized in violation of the fourth amendment to the
Federal Constitution and section 6 of article I of our State
Constitution should not be used against an individual in any
proceeding:
"'Decency, security and liberty alike demand that
government officials shall be subjected to the same
rules of conduct that are commends to the citizen. In
a government of laws, existence of the government will
be imperilled if it fails to observe the law
scrupulously. Our Government is the potent, the
omnipresent teacher. For good or for ill, it teaches
the whole people by its example. Crime is contagious.
If the government becomes a law-breaker, it breeds
contempt for law; it invites every man to become a law
unto himself; it invites anarchy. To declare that in
the administration of the criminal law the end
justifies the means--to declare that the government may
commit crimes in order to secure the conviction of a
private criminal--would bring terrible retribution.
Against that pernicious doctrine this court should
resolutely set its face.'" Dowery, 62 Ill. 2d at 209-
10, 40 N.E.2d 529, quoting Olmstead v. United States,
277 U.S. 438, 485, 48 S. Ct. 564, 575, 72 L. Ed. 944,
959-60 (1928) (Brandeis, J., dissenting).
For these reasons, I specially concur.
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