People v. Krueger
Annotate this Case
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 80486--Agenda 14--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PAUL KRUEGER,
Appellee.
Opinion filed December 19, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
The central issue in this appeal is whether section 108--
8(b)(2) of the "no-knock" statute (725 ILCS 5/108--8(b)(2) (West
1994)) violates constitutional guarantees against unreasonable
searches and seizures. We answer in the affirmative. We next hold
that the Illinois Constitution of 1970 prohibits the application of
the good-faith exception to the exclusionary rule recognized in
Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160
(1987).
FACTS
On November 15, 1995, an agent of the Lake County Metropolitan
Enforcement Group and an informant identified as John Doe appeared
before a judge of the circuit court of Lake County and presented a
complaint for a search warrant. The complaint requested a warrant
to search the defendant, Paul Krueger, and his home for the purpose
of seizing cocaine and other items related to the sale of
controlled substances.
According to the affidavit signed by the agent and John Doe,
they had conducted a controlled purchase of cocaine from the
defendant at his residence within the last 72 hours. John Doe also
attested that he had purchased cocaine from the defendant on prior
occasions and the defendant told him that he keeps guns in his
home. John Doe had personally seen one firearm in the defendant's
home, sometime within the previous two months.
The circuit judge issued a warrant authorizing the police to
search the defendant and his home. The judge further authorized the
police to enter the defendant's home without knocking and
announcing their office. The judge found that an unannounced entry
was permitted under the no-knock statute (725 ILCS 5/108--8(b)
(West 1994)) because the defendant was known to keep a firearm
there. Subsection (b)(2) of the statute classified the prior
possession of a firearm as an exigent circumstance (725 ILCS 5/108-
-8(b)(2) (West 1994)), which authorized a no-knock entry.
The next morning police forcibly entered the defendant's home
without knocking and announcing their office. The defendant was
arrested and later charged with unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 1994)), unlawful possession of
a controlled substance with intent to deliver (720 ILCS
570/401(a)(2)(A) (West 1994)), and armed violence (720 ILCS 5/33A--
2 (West 1994)), based on evidence seized during the search.
On January 5, 1996, the defendant filed a motion to quash his
arrest and suppress evidence. The parties stipulated to the above
facts and asked the circuit court to rule on the motion as a matter
of law. In the motion, the defendant contended that the mere
presence of a firearm in his home did not constitute an exigent
circumstance, which would excuse the knock-and-announce
requirement. He thus asserted that the police officers' unannounced
entry into his home violated his constitutional rights. The circuit
court of Lake County agreed and granted the defendant's motion to
quash his arrest and suppress evidence.
Upon a request for clarification by the State, the circuit
court declared subsection (b)(2) of the no-knock statute to be
unconstitutional. The State then argued that the good-faith
exception to the exclusionary rule recognized in Illinois v. Krull,
480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), should
apply because the officers, in making their unannounced entry, were
acting in objectively reasonable reliance on a statute later
declared to be unconstitutional. The circuit court declined to
follow Krull based on People v. McGee, 268 Ill. App. 3d 32 (1994),
where our appellate court held that to do so would violate the
Illinois Constitution.
This direct appeal by the State followed. 134 Ill. 2d Rule
603. We now affirm the circuit court's judgment.
ANALYSIS
I
The State contends that the circuit court erred in granting
the defendant's motion to quash his arrest and suppress evidence.
According to the State, the police were not required to knock and
announce their office before entering the defendant's home because
they had a warrant issued pursuant to subsection (b)(2) of the no-
knock statute authorizing their unannounced entry.
The defendant counters that subsection (b)(2) of the no-knock
statute contravenes the fourth and fourteenth amendments to the
United States Constitution and article I, section 6, of the
Illinois Constitution of 1970. He asserts that subsection (b)(2)
unconstitutionally classifies the mere presence of a firearm in a
home as an exigent circumstance. He therefore maintains that the
officers' unannounced entry into his home based on subsection
(b)(2) violated his constitutional rights.
A circuit court's ruling on a motion to quash arrest and
suppress evidence generally is subject to reversal only if
manifestly erroneous. People v. Saechao, 129 Ill. 2d 522, 534
(1989). This case, however, involves the circuit court's
application of the law to uncontroverted facts. Consequently, this
case presents a question of law for which we conduct de novo
review. See People v. Dilworth, 169 Ill. 2d 195, 201 (1996).
Section 108--8(b) of the Code of Criminal Procedure of 1963
(725 ILCS 5/108--8(b) (West 1994)), the "no-knock" statute,
purports to set forth the circumstances under which law enforcement
officials may execute a warrant by entering a dwelling without
first knocking and announcing their office. The subsection of the
statute at issue in this case, subsection (b)(2), provides:
"(b) Upon a finding by the judge issuing the warrant
that any of the following exigent circumstances exist,
the judge may order the person executing the warrant to
make entry without first knocking and announcing his
office:
***
(2) the prior possession of firearms by an
occupant of the building within a reasonable period
of time[.]" 725 ILCS 5/108--8(b)(2) (West 1994).
Subsection (b)(2) authorizes the judge issuing a warrant to order
police to make a no-knock entry based solely on the so-called
exigent circumstance of an occupant's prior possession of firearms
within a reasonable time period. In the present case, there is no
dispute that subsection (b)(2) was fully complied with when the
circuit judge who issued the warrant ordered police to make a no-
knock entry into the defendant's home based solely on the
circumstance that the defendant was known to keep a firearm there.
The issue before us is whether subsection (b)(2) violates the
federal or state constitutions (U.S. Const., amends. IV, XIV; Ill.
Const. 1970, art. I, 6), as the defendant claims.
The fourth and fourteenth amendments to the United States
Constitution provide that the "right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures" shall not be violated by government
officials. U.S. Const., amend. IV; see Elkins v. United States, 364 U.S. 206, 213, 4 L. Ed. 2d 1669, 1675, 80 S. Ct. 1437, 1442 (1960)
(this fourth amendment prohibition is applicable to state officials
through the fourteenth amendment). Similarly, article I, section 6,
of the Illinois Constitution of 1970 guarantees that the "People
shall have the right to be secure in their persons, houses, papers
and other possessions against unreasonable searches [and]
seizures." Ill. Const. 1970, art. I, 6. The language of the two
constitutional provisions concerning unreasonable searches and
seizures is nearly identical. Because the defendant makes no
distinction between the federal and state provisions in his
argument on this issue, we measure his constitutional protections
under both using the same standard. See People v. Tisler, 103 Ill. 2d 226, 235-36, 243 (1984).
The underlying command of the fourth amendment is that
searches and seizures by governmental officials be reasonable. In
Wilson v. Arkansas, 514 U.S. ___, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995), the United States Supreme Court held for the first
time that part of the reasonableness inquiry under the fourth
amendment is whether police complied with the knock-and-announce
rule. The basic principle behind this rule is that an officer may
not enter a dwelling, even pursuant to a valid warrant, without
first requesting admittance and announcing the reason why the
officer is there. See Wilson, 514 U.S. at ___, 131 L. Ed. 2d at
981, 115 S. Ct. at 1917. The rule's general purposes are (1) to
decrease the potential for violence, as it is recognized that an
unannounced breaking and entering could easily lead the occupants
to take defensive measures; (2) to protect privacy as much as
possible by giving the occupants notice of the impending intrusion
by police and time to respond; and (3) to prevent the physical
destruction of property where it is not necessary. E.g., People v.
Condon, 148 Ill. 2d 96, 103 (1992); 1 W. LaFave & J. Israel,
Criminal Procedure 3.4(h), at 230-31 (2d ed. 1984).
The Court in Wilson traced the knock-and-announce principle
from thirteenth-century England to its early widespread acceptance
in the United States. Wilson, 514 U.S. at ___, 131 L. Ed. 2d at
980-82, 115 S. Ct. at 1916-18. "Given the longstanding common-law
endorsement of the practice of announcement," the Court had "little
doubt that the Framers of the Fourth Amendment thought that the
method of an officer's entry into a dwelling was among the factors
to be considered in assessing the reasonableness of a search or
seizure." Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982, 115 S. Ct.
at 1918. Consequently, the Court concluded that "in some
circumstances an officer's unannounced entry into a home might be
unreasonable" and, therefore, unconstitutional under the fourth
amendment. Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982, 115 S.
Ct. at ___.
The Court went on to explain that the fourth amendment's
reasonableness requirement does not "mandate a rigid rule of
announcement" in every situation. Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982, 115 S. Ct. at 1918. Rather, the Court recognized
that there are certain circumstances under which an unannounced
entry is constitutionally reasonable, such as where there is a
threat of physical violence or where officers have reason to
believe that evidence will be destroyed if advance notice is given.
Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982-84, 115 S. Ct. at
1918-19, citing Ker v. California, 374 U.S. 23, 38-41, 10 L. Ed. 2d 726, 740-42, 83 S. Ct. 1623, 1632-34 (1963) (plurality opinion).
The Court nonetheless declined to catalog all these circumstances,
expressly leaving this task to the lower courts. Wilson, 514 U.S.
at ___, 131 L. Ed. 2d at 984, 115 S. Ct. at 1919.
Prior to Wilson, this court considered the knock-and-announce
rule in determining whether an entry preceding an arrest or a
search is "constitutionally reasonable." E.g., People v. Wolgemuth,
69 Ill. 2d 154, 166 (1977). This court's decisions, like Wilson,
recognize that compliance with the knock-and-announce rule is not
required in every situation. According to our precedent, officers
are excused from making the ordinary announcements where "exigent
circumstances" exist sufficient to justify the intrusion. E.g.,
People v. Ouellette, 78 Ill. 2d 511, 518 (1979). In general,
exigent circumstances encompass such considerations as danger to
the police officers executing the warrant, the uselessness of the
announcement, or the ease with which evidence may be destroyed.
E.g., Ouellette, 78 Ill. 2d at 518.
The State contends that subsection (b)(2) survives the
defendant's constitutional challenges because it recognizes a
legitimate exigent circumstance. As noted above, subsection (b)(2)
authorizes an unannounced entry where the judge finds that "an
occupant of the building" to be searched has possessed firearms
"within a reasonable period of time." 725 ILCS 5/108--8(b)(2) (West
1994). The State reasons that, where a person is known to have
recently possessed firearms, the logical inference is that the
officers executing the warrant will be in danger if they first
knock and announce their office. This court has rejected this
rationale before.
In People v. Condon, 148 Ill. 2d 96, 101 (1992), 12 drug
enforcement agents, acting on a valid search warrant, entered a
home with the aid of a battering ram. They did not knock or
announce themselves in any way. The complaint on which the warrant
was based noted that the two brothers who resided in the home had
sold cocaine to a police informant. The informant attested that
when he purchased cocaine from the brothers at their home, he saw
several weapons which were used to protect drugs and currency, as
well as two closed circuit television cameras and a police scanner.
In addition, an agent averred that when she arrested one brother
two years earlier for drug possession, he was armed with a loaded
.22-caliber Baretta semi-automatic pistol.
This court specifically rejected the State's argument that the
known presence of firearms in the Condon home created an exigent
circumstance justifying the no-knock entry. Following established
precedent, this court held that an exigent circumstance does not
result from the mere presence of firearms in the building to be
searched; rather, the officers must have a reasonable belief that
a weapon will be used against them if they proceed with the
ordinary announcements. Condon, 148 Ill. 2d at 104-06, citing
People v. Ouellette, 78 Ill. 2d 511, 520-21 (1979) (establishing
the rule in Illinois); accord Poole v. United States, 630 A.2d 1109, 1118 (D.C. 1993) (and the many cases cited therein); see
generally 1 W. LaFave & J. Israel, Criminal Procedure 3.6(b), at
264 (2d ed. 1984) (stating that "it is not enough that the person
to be arrested is known to own a weapon," in discussing exigent
circumstances). The record contained no such evidence, the court
found. Although the brothers were known to own and carry firearms,
they were not known to be violent or to threaten to use violence.
This court explained why the rule of announcement prevails in
circumstances such as these, stating:
"Indeed, the need for compliance with the knock-and-
announce rule would seem to be even greater where the
police know there are weapons present, but the persons
involved are not known to have a propensity to use
weapons. Any citizen in the privacy of his or her home
might resort to the use of violence if threatened by a
completely unexpected and unannounced entry into the
home, let alone someone who is involved in the world of
drugs. Again, we reiterate that the purpose of the knock-
and-announce rule is to prevent what could turn out to be
deadly encounters between police and citizens." Condon,
148 Ill. 2d at 107-08.
After rejecting the State's other claimed exigencies, this court
held that the agents' unannounced entry into the brothers' home
violated the constitutional requirements of reasonableness and
suppressed the evidence resulting from the search. Condon, 148 Ill. 2d at 102-08.
Applying the precedent discussed above, we hold that
subsection (b)(2) is unconstitutional. Subsection (b)(2) authorizes
no-knock entries based solely on an occupant's prior possession of
firearms. The above precedent establishes, however, that such
entries violate the constitutional requirements of reasonableness.
Given this clear conflict between subsection (b)(2) and the federal
and state constitutions, subsection (b)(2) cannot stand.
We reject the State's attempt to distinguish subsection (b)(2)
from Condon. The State argues that the statute is different because
it provides for a neutral and detached magistrate who determines
whether exigent circumstances exist in any given case. We disagree
with this interpretation of subsection (b)(2). By its plain
language, subsection (b)(2) defines an occupant's prior possession
of firearms to be an exigent circumstance, and it authorizes a no-
knock entry based solely on this so-called exigent circumstance. As
our earlier discussion reveals, such an entry is not
constitutionally reasonable. We thus conclude that the judge's
participation under subsection (b)(2) does not cure its
constitutional infirmities.
We note that, under Condon, a no-knock entry is
constitutionally reasonable where officers have a reasonable belief
that an occupant will use a firearm against them if they proceed
with the ordinary announcements. Condon, 148 Ill. 2d at 104-06. The
record in the present case is barren of any evidence to this
effect. We therefore conclude that no exigent circumstance existed
here and, as a result, the officers' unannounced entry into the
defendant's home violated his constitutional rights to be free from
unreasonable searches and seizures.
II
Having concluded that subsection (b)(2) is unconstitutional,
we must next determine whether the evidence seized from the
defendant's home should be excluded. The State argues that we
should reverse the circuit court's suppression order based on the
good-faith exception to the exclusionary rule recognized in
Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160
(1987). We hold that the Krull good-faith exception does not
comport with article I, section 6, of the Illinois Constitution of
1970.
In Krull, a bare majority of the United States Supreme Court
extended the good-faith exception to the exclusionary rule first
established in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). Krull, 480 U.S. 340, 94 L. Ed. 2d 364,
107 S. Ct. 1160. In Leon, the Court held that the fourth amendment
exclusionary rule will not bar the use of evidence obtained by a
police officer who reasonably relied, in objective good faith, on
a search warrant issued by a neutral and detached magistrate, but
ultimately found to be unsupported by probable cause. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405. The Krull majority
broadened this good-faith exception, holding that the fourth
amendment exclusionary rule does not bar the use of evidence seized
by a police officer who reasonably relied, in objective good faith,
on a statute that authorizes a warrantless administrative search,
but the statute is later declared to be unconstitutional. Krull,
480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160. Following the
rationale set forth in Leon, the Krull Court stated that the basic
purpose of the fourth amendment exclusionary rule is to deter
future misconduct. The Court reasoned that the exclusionary rule's
application in situations where police officers conducted a search
in reliance on the authority of a statute, which is only later
determined to be unconstitutional, would have little deterrent
effect on future police misconduct. Krull, 480 U.S. at 347-49, 94 L. Ed. 2d at 373-75, 107 S. Ct. at 1165-67. A major underpinning of
the majority's decision was its determination that legislators are
not inclined to act in contravention of fourth amendment values; as
a result, the majority found no evidence that the exclusionary rule
is necessary to deter legislators from enacting unconstitutional
statutes. Krull, 480 U.S. at 349-52, 94 L. Ed. 2d at 375-77, 107 S. Ct. at 1167-69. In the final analysis, when the Court weighed the
"incremental deterrent" effect of the exclusionary rule's
application in these situations against the substantial social
costs exacted by the rule, it determined that the exclusionary rule
must fall. Krull, 480 U.S. at 352-53, 94 L. Ed. 2d at 377, 107 S. Ct. at 1168. The Court did allow for two exceptions to Krull's
extended good-faith exception, however. It does not apply if (1) in
enacting the statute, the legislature wholly abandoned its
responsibility to enact constitutional laws; or (2) the statute's
provisions are such that a reasonable officer should have known
that the statute was not constitutional. Krull, 480 U.S. at 355, 94 L. Ed. 2d at 378-79, 107 S. Ct. at 1170.
Justice O'Connor's dissent revealed several serious flaws in
the majority's decision. She pointed out that this newly created
exception to the fourth amendment exclusionary rule provides a
"grace period" for unconstitutional search and seizure legislation,
during which time "the State is permitted to violate constitutional
requirements with impunity." Krull, 480 U.S. at 361, 94 L. Ed. 2d
at 382, 107 S. Ct. at 1173 (O'Connor, J., dissenting, joined by
Brennan, Marshall and Stevens, JJ.). Further, Justice O'Connor did
not find the majority's extension of the good-faith exception to be
supported by Leon's rationale. She persuasively distinguished Leon
on the following grounds. First, there is a "powerful historical
basis for the exclusion of evidence gathered pursuant to a search
authorized by an unconstitutional statute." Krull, 480 U.S. at 362,
94 L. Ed. 2d at 383, 107 S. Ct. at 1173 (O'Connor, J., dissenting,
joined by Brennan, Marshall and Stevens, JJ.). Not only were such
statutes "the core concern of the Framers of the Fourth Amendment,"
the exclusionary rule had regularly been applied to suppress
evidence gathered under unconstitutional statutes. Krull, 480 U.S.
at 362-63, 94 L. Ed. 2d at 383-84, 107 S. Ct. at 1173-74 (O'Connor,
J., dissenting, joined by Brennan, Marshall and Stevens, JJ.),
citing, e.g., Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238,
100 S. Ct. 338 (1979). Second, Justice O'Connor found this history
illustrative of the fact that the relevant state actors in Krull--
legislators--often pose a serious threat to fourth amendment
values. She saw a clear distinction between the legislator and the
judicial officer who mistakenly issued a warrant in Leon. She
noted:
"The judicial role is particularized, fact-specific and
nonpolitical. Judicial authorization of a particular
search does not threaten the liberty of everyone, but
rather authorizes a single search under particular
circumstances. The legislative act, on the other hand,
sweeps broadly, authorizing whole classes of searches,
without any particularized showing. A judicial officer's
unreasonable authorization of a search affects one person
at a time; a legislature's unreasonable authorization of
searches may affect thousands or millions and will almost
always affect more than one. Certainly the latter poses
a greater threat to liberty." Krull, 480 U.S. at 365, 94 L. Ed. 2d at 385, 107 S. Ct. at 1175 (O'Connor, J.,
dissenting, joined by Brennan, Marshall and Stevens,
JJ.).
Having successfully distinguished Leon, Justice O'Connor next
pointed out that "the novelty" of the majority's decision was
"illustrated by the fact that [under it] no effective remedy is to
be provided in the very case in which the statute at issue was held
unconstitutional." Krull, 480 U.S. at 368, 94 L. Ed. 2d at 387, 107 S. Ct. at 1177 (O'Connor, J., dissenting, joined by Brennan,
Marshall and Stevens, JJ.). As she noted, the lack of a remedy
leaves no incentive for the aggrieved defendant to challenge the
statute as unconstitutional. Justice O'Connor last questioned how
the limited exceptions to the Krull good-faith exception could be
applied in practice. "Under what circumstances a legislature can be
said to have `wholly abandoned' its obligation to pass
constitutional laws is not apparent on the face of the Court's
opinion." Krull, 480 U.S. at 369, 94 L. Ed. 2d at 388, 107 S. Ct.
at 1177 (O'Connor, J., dissenting, joined by Brennan, Marshall and
Stevens, JJ.).
The State's argument that we should reverse the circuit
court's suppression order is based solely on Krull. Krull is
controlling in this case as to whether there is a federal
constitutional basis for excluding the evidence seized from the
defendant's home. Pursuant to Krull, exclusion of this evidence is
not supportable on the ground that it was obtained by virtue of an
unconstitutional statute. We nevertheless hold that the
exclusionary rule arising out of our state constitution (Ill.
Const. 1970, art. I, 6) continues to afford the protection
abrogated by Krull.
This court unquestionably has the authority to interpret
provisions of our state constitution more broadly than the United
States Supreme Court interprets similar provisions of the federal
constitution. People v. Perry, 147 Ill. 2d 430, 436 (1992). We
acknowledge that this court has long applied the lockstep doctrine
to follow Supreme Court decisions in fourth amendment cases. People
v. Tisler, 103 Ill. 2d 226, 241-46 (1984); People v. Tillman, 1 Ill. 2d 525, 529-30 (1953). We knowingly depart from that tradition
here, for the reasons set forth below.
Initially, we note that our state exclusionary rule has
applied in Illinois for more than 70 years to suppress evidence
gathered in violation of the Illinois Constitution's prohibition
against unreasonable searches and seizures. People v. Brocamp, 307 Ill. 448 (1923) (this court, following the United States Supreme
Court's recognition of the federal exclusionary rule arising out of
the fourth amendment in Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914), recognized a separate state
exclusionary rule arising out of similar language in the Illinois
Constitution); see also Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961) (extending the federal exclusionary
rule by applying it to state governmental officials through the due
process clause of the fourteenth amendment, thereby rendering our
state exclusionary rule superfluous after nearly four decades of
independent application). This exclusionary rule has always been
understood to bar evidence gathered under the authority of an
unconstitutional statute (see Brocamp, 307 Ill. 448 (adopting the
reasoning in Weeks for purposes of our state exclusionary rule);
Weeks, 232 U.S. at 394, 58 L. Ed. at 656, 34 S. Ct. at 345 (making
it clear that the federal exclusionary rule was intended to apply
to evidence gathered by officers acting under "legislative ***
sanction")), so long as that statute purported to authorize an
unconstitutional search or seizure (see Michigan v. DeFillippo, 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979) (recognizing a
substantive-procedural distinction not at issue here; specifically
holding that the fourth amendment exclusionary rule did not apply
where an ordinance was held unconstitutional on vagueness
grounds)). Consequently, to adopt Krull's extended good-faith
exception would drastically change this state's constitutional law.
This court is obliged to evaluate the rationale underlying
Krull in determining whether to adopt its extended good-faith
exception for purposes of the exclusionary rule arising out of our
state constitution. Like the United States Supreme Court, this
court employs a balancing test to delineate the scope of our state
exclusionary rule: "Decisions involving the exclusionary rule and
the Illinois Constitution's article I, section 6, require that we
carefully balance the legitimate aims of law enforcement against
the right of our citizens to be free from unreasonable governmental
intrusion." People v. Tisler, 103 Ill. 2d 226, 245 (1984); cf.
Krull, 480 U.S. at 352-53, 94 L. Ed. 2d at 377, 107 S. Ct. at 1168-
69; Leon, 468 U.S. at 907, 82 L. Ed. 2d at 688, 104 S. Ct. at 3412.
In performing this duty here, we conclude that our citizens' rights
prevail. We are not willing to recognize an exception to our state
exclusionary rule that will provide a grace period for
unconstitutional search and seizure legislation, during which time
our citizens' prized constitutional rights can be violated with
impunity. We are particularly disturbed by the fact that such a
grace period could last for several years and affect large numbers
of people. This is simply too high a price for our citizens to pay.
We therefore conclude that article I, section 6, of the Illinois
Constitution of 1970 prohibits the application of Krull's extended
good-faith exception to our state exclusionary rule.
Not surprisingly, several fourth amendment scholars have
severely criticized Krull. E.g., 1 W. LaFave, Search & Seizure
1.3(h), at 96-99 (3d ed. 1996). Our own appellate court has
determined that the Krull good-faith exception violates the
Illinois Constitution. People v. McGee, 268 Ill. App. 3d 32 (1994).
In addition, several state courts of last resort presumably will
reject Krull's extension of the good-faith exception based on their
determination that the Leon good-faith exception violates their
respective state constitutions. See State v. Guzman, 122 Idaho 981,
842 P.2d 660 (1992); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991); State v. Oakes, 157 Vt. 171, 598 A.2d 119 (1991); State
v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); State v. Carter, 322
N.C. 709, 370 S.E.2d 553 (1988); State v. Novembrino, 105 N.J. 95,
519 A.2d 820 (1987). This result is self-evident because one cannot
reject Leon's good-faith exception and accept Krull's extension of
that exception.
Before concluding, we note that our decision today does not
impact the Leon good-faith exception. See People v. Turnage, 162 Ill. 2d 299, 306 (1994). Although the converse is not true, one can
fully accept the rationale and result in Leon while rejecting the
rationale and result in Krull. This is precisely what Justice
O'Connor did in her dissent in Krull.
For the reasons stated, we affirm the circuit court's
suppression order. The circuit court's judgment is therefore
affirmed in its entirety.
Affirmed.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the
Illinois Constitution forbids in this case what the United States
Constitution clearly allows. I would therefore apply the good-faith
exception recognized by the Supreme Court in Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), and reverse the
circuit court's order suppressing the evidence seized from the
defendant.
In People v. Tisler, 103 Ill. 2d 226, 245 (1984), this court
defined the circumstances under which it is appropriate to
interpret provisions of the Illinois Constitution differently from
their federal counterparts:
"After having accepted the pronouncements of the
Supreme Court in deciding fourth amendment cases as the
appropriate construction of the search and seizure
provisions of the Illinois Constitution for so many
years, we should not suddenly change course and go our
separate way simply to accommodate the desire of the
defendant to circumvent what he perceives as a narrowing
of his fourth amendment rights under the Supreme Court's
decision ***. Any variance between the Supreme Court's
construction of the provisions of the fourth amendment in
the Federal Constitution and similar provisions in the
Illinois Constitution must be based on more substantial
grounds. We must find in the language of our
constitution, or in the debates and the committee reports
of the constitutional convention, something which will
indicate that the provisions of our constitution are
intended to be construed differently than are similar
provisions in the Federal Constitution, after which they
are patterned."
In the present case, the majority does not point to anything
in either the text or history of our state constitution that would
warrant this court in reaching a result different from the one
reached by the United States Supreme Court in Krull. In the absence
of a valid ground for distinguishing the language of article I,
section 6, of the Illinois Constitution from the fourth amendment,
I would adhere to Krull and recognize, in our own state
constitution, a good-faith exception to the exclusionary rule when
searches and seizures are conducted under statutes that are later
held invalid. Because the statute here was not so obviously
unconstitutional as to render the good-faith exception inapplicable
(see Krull, 480 U.S. at 355, 94 L. Ed. 2d at 378-79, 107 S. Ct. at
1170), I would reverse the trial court's order suppressing the
evidence seized in this case.
It should be noted, moreover, that the officers in the present
case were not resting simply on their own interpretations of the
statute but were acting pursuant to a warrant that authorized a no-
knock entry; the warrant is defective only because the statute on
which it depends is now found to be unconstitutional. A number of
the concerns cited by the majority in opposition to Krull are
therefore inapplicable to this case, in which a judicial
intermediary stood between the statute and the search.
Just as the majority follows federal law in evaluating the
validity of the statute under both the federal and state
constitutions, so too should we follow federal law in applying the
good-faith exception to the exclusionary rule. In comparing article
I, section 6, and the fourth amendment, the majority correctly
recognizes, "The language of the two constitutional provisions
concerning unreasonable searches and seizures is nearly identical"
(slip op. at 4), and the majority invokes Tisler and other
decisions involving the fourth amendment in determining that the
statute at issue here is invalid. Having found the statute
unconstitutional under federal law, however, the majority
incongruously fails to follow the same line of authority in
considering the application of the good-faith exception to the
exclusionary rule.
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 80486--Agenda 14--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PAUL KRUEGER,
Appellee.
Opinion filed December 19, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
The central issue in this appeal is whether section 108--
8(b)(2) of the "no-knock" statute (725 ILCS 5/108--8(b)(2) (West
1994)) violates constitutional guarantees against unreasonable
searches and seizures. We answer in the affirmative. We next hold
that the Illinois Constitution of 1970 prohibits the application of
the good-faith exception to the exclusionary rule recognized in
Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160
(1987).
FACTS
On November 15, 1995, an agent of the Lake County Metropolitan
Enforcement Group and an informant identified as John Doe appeared
before a judge of the circuit court of Lake County and presented a
complaint for a search warrant. The complaint requested a warrant
to search the defendant, Paul Krueger, and his home for the purpose
of seizing cocaine and other items related to the sale of
controlled substances.
According to the affidavit signed by the agent and John Doe,
they had conducted a controlled purchase of cocaine from the
defendant at his residence within the last 72 hours. John Doe also
attested that he had purchased cocaine from the defendant on prior
occasions and the defendant told him that he keeps guns in his
home. John Doe had personally seen one firearm in the defendant's
home, sometime within the previous two months.
The circuit judge issued a warrant authorizing the police to
search the defendant and his home. The judge further authorized the
police to enter the defendant's home without knocking and
announcing their office. The judge found that an unannounced entry
was permitted under the no-knock statute (725 ILCS 5/108--8(b)
(West 1994)) because the defendant was known to keep a firearm
there. Subsection (b)(2) of the statute classified the prior
possession of a firearm as an exigent circumstance (725 ILCS 5/108-
-8(b)(2) (West 1994)), which authorized a no-knock entry.
The next morning police forcibly entered the defendant's home
without knocking and announcing their office. The defendant was
arrested and later charged with unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 1994)), unlawful possession of
a controlled substance with intent to deliver (720 ILCS
570/401(a)(2)(A) (West 1994)), and armed violence (720 ILCS 5/33A--
2 (West 1994)), based on evidence seized during the search.
On January 5, 1996, the defendant filed a motion to quash his
arrest and suppress evidence. The parties stipulated to the above
facts and asked the circuit court to rule on the motion as a matter
of law. In the motion, the defendant contended that the mere
presence of a firearm in his home did not constitute an exigent
circumstance, which would excuse the knock-and-announce
requirement. He thus asserted that the police officers' unannounced
entry into his home violated his constitutional rights. The circuit
court of Lake County agreed and granted the defendant's motion to
quash his arrest and suppress evidence.
Upon a request for clarification by the State, the circuit
court declared subsection (b)(2) of the no-knock statute to be
unconstitutional. The State then argued that the good-faith
exception to the exclusionary rule recognized in Illinois v. Krull,
480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), should
apply because the officers, in making their unannounced entry, were
acting in objectively reasonable reliance on a statute later
declared to be unconstitutional. The circuit court declined to
follow Krull based on People v. McGee, 268 Ill. App. 3d 32 (1994),
where our appellate court held that to do so would violate the
Illinois Constitution.
This direct appeal by the State followed. 134 Ill. 2d Rule
603. We now affirm the circuit court's judgment.
ANALYSIS
I
The State contends that the circuit court erred in granting
the defendant's motion to quash his arrest and suppress evidence.
According to the State, the police were not required to knock and
announce their office before entering the defendant's home because
they had a warrant issued pursuant to subsection (b)(2) of the no-
knock statute authorizing their unannounced entry.
The defendant counters that subsection (b)(2) of the no-knock
statute contravenes the fourth and fourteenth amendments to the
United States Constitution and article I, section 6, of the
Illinois Constitution of 1970. He asserts that subsection (b)(2)
unconstitutionally classifies the mere presence of a firearm in a
home as an exigent circumstance. He therefore maintains that the
officers' unannounced entry into his home based on subsection
(b)(2) violated his constitutional rights.
A circuit court's ruling on a motion to quash arrest and
suppress evidence generally is subject to reversal only if
manifestly erroneous. People v. Saechao, 129 Ill. 2d 522, 534
(1989). This case, however, involves the circuit court's
application of the law to uncontroverted facts. Consequently, this
case presents a question of law for which we conduct de novo
review. See People v. Dilworth, 169 Ill. 2d 195, 201 (1996).
Section 108--8(b) of the Code of Criminal Procedure of 1963
(725 ILCS 5/108--8(b) (West 1994)), the "no-knock" statute,
purports to set forth the circumstances under which law enforcement
officials may execute a warrant by entering a dwelling without
first knocking and announcing their office. The subsection of the
statute at issue in this case, subsection (b)(2), provides:
"(b) Upon a finding by the judge issuing the warrant
that any of the following exigent circumstances exist,
the judge may order the person executing the warrant to
make entry without first knocking and announcing his
office:
***
(2) the prior possession of firearms by an
occupant of the building within a reasonable period
of time[.]" 725 ILCS 5/108--8(b)(2) (West 1994).
Subsection (b)(2) authorizes the judge issuing a warrant to order
police to make a no-knock entry based solely on the so-called
exigent circumstance of an occupant's prior possession of firearms
within a reasonable time period. In the present case, there is no
dispute that subsection (b)(2) was fully complied with when the
circuit judge who issued the warrant ordered police to make a no-
knock entry into the defendant's home based solely on the
circumstance that the defendant was known to keep a firearm there.
The issue before us is whether subsection (b)(2) violates the
federal or state constitutions (U.S. Const., amends. IV, XIV; Ill.
Const. 1970, art. I, 6), as the defendant claims.
The fourth and fourteenth amendments to the United States
Constitution provide that the "right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures" shall not be violated by government
officials. U.S. Const., amend. IV; see Elkins v. United States, 364 U.S. 206, 213, 4 L. Ed. 2d 1669, 1675, 80 S. Ct. 1437, 1442 (1960)
(this fourth amendment prohibition is applicable to state officials
through the fourteenth amendment). Similarly, article I, section 6,
of the Illinois Constitution of 1970 guarantees that the "People
shall have the right to be secure in their persons, houses, papers
and other possessions against unreasonable searches [and]
seizures." Ill. Const. 1970, art. I, 6. The language of the two
constitutional provisions concerning unreasonable searches and
seizures is nearly identical. Because the defendant makes no
distinction between the federal and state provisions in his
argument on this issue, we measure his constitutional protections
under both using the same standard. See People v. Tisler, 103 Ill. 2d 226, 235-36, 243 (1984).
The underlying command of the fourth amendment is that
searches and seizures by governmental officials be reasonable. In
Wilson v. Arkansas, 514 U.S. ___, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995), the United States Supreme Court held for the first
time that part of the reasonableness inquiry under the fourth
amendment is whether police complied with the knock-and-announce
rule. The basic principle behind this rule is that an officer may
not enter a dwelling, even pursuant to a valid warrant, without
first requesting admittance and announcing the reason why the
officer is there. See Wilson, 514 U.S. at ___, 131 L. Ed. 2d at
981, 115 S. Ct. at 1917. The rule's general purposes are (1) to
decrease the potential for violence, as it is recognized that an
unannounced breaking and entering could easily lead the occupants
to take defensive measures; (2) to protect privacy as much as
possible by giving the occupants notice of the impending intrusion
by police and time to respond; and (3) to prevent the physical
destruction of property where it is not necessary. E.g., People v.
Condon, 148 Ill. 2d 96, 103 (1992); 1 W. LaFave & J. Israel,
Criminal Procedure 3.4(h), at 230-31 (2d ed. 1984).
The Court in Wilson traced the knock-and-announce principle
from thirteenth-century England to its early widespread acceptance
in the United States. Wilson, 514 U.S. at ___, 131 L. Ed. 2d at
980-82, 115 S. Ct. at 1916-18. "Given the longstanding common-law
endorsement of the practice of announcement," the Court had "little
doubt that the Framers of the Fourth Amendment thought that the
method of an officer's entry into a dwelling was among the factors
to be considered in assessing the reasonableness of a search or
seizure." Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982, 115 S. Ct.
at 1918. Consequently, the Court concluded that "in some
circumstances an officer's unannounced entry into a home might be
unreasonable" and, therefore, unconstitutional under the fourth
amendment. Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982, 115 S.
Ct. at ___.
The Court went on to explain that the fourth amendment's
reasonableness requirement does not "mandate a rigid rule of
announcement" in every situation. Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982, 115 S. Ct. at 1918. Rather, the Court recognized
that there are certain circumstances under which an unannounced
entry is constitutionally reasonable, such as where there is a
threat of physical violence or where officers have reason to
believe that evidence will be destroyed if advance notice is given.
Wilson, 514 U.S. at ___, 131 L. Ed. 2d at 982-84, 115 S. Ct. at
1918-19, citing Ker v. California, 374 U.S. 23, 38-41, 10 L. Ed. 2d 726, 740-42, 83 S. Ct. 1623, 1632-34 (1963) (plurality opinion).
The Court nonetheless declined to catalog all these circumstances,
expressly leaving this task to the lower courts. Wilson, 514 U.S.
at ___, 131 L. Ed. 2d at 984, 115 S. Ct. at 1919.
Prior to Wilson, this court considered the knock-and-announce
rule in determining whether an entry preceding an arrest or a
search is "constitutionally reasonable." E.g., People v. Wolgemuth,
69 Ill. 2d 154, 166 (1977). This court's decisions, like Wilson,
recognize that compliance with the knock-and-announce rule is not
required in every situation. According to our precedent, officers
are excused from making the ordinary announcements where "exigent
circumstances" exist sufficient to justify the intrusion. E.g.,
People v. Ouellette, 78 Ill. 2d 511, 518 (1979). In general,
exigent circumstances encompass such considerations as danger to
the police officers executing the warrant, the uselessness of the
announcement, or the ease with which evidence may be destroyed.
E.g., Ouellette, 78 Ill. 2d at 518.
The State contends that subsection (b)(2) survives the
defendant's constitutional challenges because it recognizes a
legitimate exigent circumstance. As noted above, subsection (b)(2)
authorizes an unannounced entry where the judge finds that "an
occupant of the building" to be searched has possessed firearms
"within a reasonable period of time." 725 ILCS 5/108--8(b)(2) (West
1994). The State reasons that, where a person is known to have
recently possessed firearms, the logical inference is that the
officers executing the warrant will be in danger if they first
knock and announce their office. This court has rejected this
rationale before.
In People v. Condon, 148 Ill. 2d 96, 101 (1992), 12 drug
enforcement agents, acting on a valid search warrant, entered a
home with the aid of a battering ram. They did not knock or
announce themselves in any way. The complaint on which the warrant
was based noted that the two brothers who resided in the home had
sold cocaine to a police informant. The informant attested that
when he purchased cocaine from the brothers at their home, he saw
several weapons which were used to protect drugs and currency, as
well as two closed circuit television cameras and a police scanner.
In addition, an agent averred that when she arrested one brother
two years earlier for drug possession, he was armed with a loaded
.22-caliber Baretta semi-automatic pistol.
This court specifically rejected the State's argument that the
known presence of firearms in the Condon home created an exigent
circumstance justifying the no-knock entry. Following established
precedent, this court held that an exigent circumstance does not
result from the mere presence of firearms in the building to be
searched; rather, the officers must have a reasonable belief that
a weapon will be used against them if they proceed with the
ordinary announcements. Condon, 148 Ill. 2d at 104-06, citing
People v. Ouellette, 78 Ill. 2d 511, 520-21 (1979) (establishing
the rule in Illinois); accord Poole v. United States, 630 A.2d 1109, 1118 (D.C. 1993) (and the many cases cited therein); see
generally 1 W. LaFave & J. Israel, Criminal Procedure 3.6(b), at
264 (2d ed. 1984) (stating that "it is not enough that the person
to be arrested is known to own a weapon," in discussing exigent
circumstances). The record contained no such evidence, the court
found. Although the brothers were known to own and carry firearms,
they were not known to be violent or to threaten to use violence.
This court explained why the rule of announcement prevails in
circumstances such as these, stating:
"Indeed, the need for compliance with the knock-and-
announce rule would seem to be even greater where the
police know there are weapons present, but the persons
involved are not known to have a propensity to use
weapons. Any citizen in the privacy of his or her home
might resort to the use of violence if threatened by a
completely unexpected and unannounced entry into the
home, let alone someone who is involved in the world of
drugs. Again, we reiterate that the purpose of the knock-
and-announce rule is to prevent what could turn out to be
deadly encounters between police and citizens." Condon,
148 Ill. 2d at 107-08.
After rejecting the State's other claimed exigencies, this court
held that the agents' unannounced entry into the brothers' home
violated the constitutional requirements of reasonableness and
suppressed the evidence resulting from the search. Condon, 148 Ill. 2d at 102-08.
Applying the precedent discussed above, we hold that
subsection (b)(2) is unconstitutional. Subsection (b)(2) authorizes
no-knock entries based solely on an occupant's prior possession of
firearms. The above precedent establishes, however, that such
entries violate the constitutional requirements of reasonableness.
Given this clear conflict between subsection (b)(2) and the federal
and state constitutions, subsection (b)(2) cannot stand.
We reject the State's attempt to distinguish subsection (b)(2)
from Condon. The State argues that the statute is different because
it provides for a neutral and detached magistrate who determines
whether exigent circumstances exist in any given case. We disagree
with this interpretation of subsection (b)(2). By its plain
language, subsection (b)(2) defines an occupant's prior possession
of firearms to be an exigent circumstance, and it authorizes a no-
knock entry based solely on this so-called exigent circumstance. As
our earlier discussion reveals, such an entry is not
constitutionally reasonable. We thus conclude that the judge's
participation under subsection (b)(2) does not cure its
constitutional infirmities.
We note that, under Condon, a no-knock entry is
constitutionally reasonable where officers have a reasonable belief
that an occupant will use a firearm against them if they proceed
with the ordinary announcements. Condon, 148 Ill. 2d at 104-06. The
record in the present case is barren of any evidence to this
effect. We therefore conclude that no exigent circumstance existed
here and, as a result, the officers' unannounced entry into the
defendant's home violated his constitutional rights to be free from
unreasonable searches and seizures.
II
Having concluded that subsection (b)(2) is unconstitutional,
we must next determine whether the evidence seized from the
defendant's home should be excluded. The State argues that we
should reverse the circuit court's suppression order based on the
good-faith exception to the exclusionary rule recognized in
Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160
(1987). We hold that the Krull good-faith exception does not
comport with article I, section 6, of the Illinois Constitution of
1970.
In Krull, a bare majority of the United States Supreme Court
extended the good-faith exception to the exclusionary rule first
established in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). Krull, 480 U.S. 340, 94 L. Ed. 2d 364,
107 S. Ct. 1160. In Leon, the Court held that the fourth amendment
exclusionary rule will not bar the use of evidence obtained by a
police officer who reasonably relied, in objective good faith, on
a search warrant issued by a neutral and detached magistrate, but
ultimately found to be unsupported by probable cause. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405. The Krull majority
broadened this good-faith exception, holding that the fourth
amendment exclusionary rule does not bar the use of evidence seized
by a police officer who reasonably relied, in objective good faith,
on a statute that authorizes a warrantless administrative search,
but the statute is later declared to be unconstitutional. Krull,
480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160. Following the
rationale set forth in Leon, the Krull Court stated that the basic
purpose of the fourth amendment exclusionary rule is to deter
future misconduct. The Court reasoned that the exclusionary rule's
application in situations where police officers conducted a search
in reliance on the authority of a statute, which is only later
determined to be unconstitutional, would have little deterrent
effect on future police misconduct. Krull, 480 U.S. at 347-49, 94 L. Ed. 2d at 373-75, 107 S. Ct. at 1165-67. A major underpinning of
the majority's decision was its determination that legislators are
not inclined to act in contravention of fourth amendment values; as
a result, the majority found no evidence that the exclusionary rule
is necessary to deter legislators from enacting unconstitutional
statutes. Krull, 480 U.S. at 349-52, 94 L. Ed. 2d at 375-77, 107 S. Ct. at 1167-69. In the final analysis, when the Court weighed the
"incremental deterrent" effect of the exclusionary rule's
application in these situations against the substantial social
costs exacted by the rule, it determined that the exclusionary rule
must fall. Krull, 480 U.S. at 352-53, 94 L. Ed. 2d at 377, 107 S. Ct. at 1168. The Court did allow for two exceptions to Krull's
extended good-faith exception, however. It does not apply if (1) in
enacting the statute, the legislature wholly abandoned its
responsibility to enact constitutional laws; or (2) the statute's
provisions are such that a reasonable officer should have known
that the statute was not constitutional. Krull, 480 U.S. at 355, 94 L. Ed. 2d at 378-79, 107 S. Ct. at 1170.
Justice O'Connor's dissent revealed several serious flaws in
the majority's decision. She pointed out that this newly created
exception to the fourth amendment exclusionary rule provides a
"grace period" for unconstitutional search and seizure legislation,
during which time "the State is permitted to violate constitutional
requirements with impunity." Krull, 480 U.S. at 361, 94 L. Ed. 2d
at 382, 107 S. Ct. at 1173 (O'Connor, J., dissenting, joined by
Brennan, Marshall and Stevens, JJ.). Further, Justice O'Connor did
not find the majority's extension of the good-faith exception to be
supported by Leon's rationale. She persuasively distinguished Leon
on the following grounds. First, there is a "powerful historical
basis for the exclusion of evidence gathered pursuant to a search
authorized by an unconstitutional statute." Krull, 480 U.S. at 362,
94 L. Ed. 2d at 383, 107 S. Ct. at 1173 (O'Connor, J., dissenting,
joined by Brennan, Marshall and Stevens, JJ.). Not only were such
statutes "the core concern of the Framers of the Fourth Amendment,"
the exclusionary rule had regularly been applied to suppress
evidence gathered under unconstitutional statutes. Krull, 480 U.S.
at 362-63, 94 L. Ed. 2d at 383-84, 107 S. Ct. at 1173-74 (O'Connor,
J., dissenting, joined by Brennan, Marshall and Stevens, JJ.),
citing, e.g., Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238,
100 S. Ct. 338 (1979). Second, Justice O'Connor found this history
illustrative of the fact that the relevant state actors in Krull--
legislators--often pose a serious threat to fourth amendment
values. She saw a clear distinction between the legislator and the
judicial officer who mistakenly issued a warrant in Leon. She
noted:
"The judicial role is particularized, fact-specific and
nonpolitical. Judicial authorization of a particular
search does not threaten the liberty of everyone, but
rather authorizes a single search under particular
circumstances. The legislative act, on the other hand,
sweeps broadly, authorizing whole classes of searches,
without any particularized showing. A judicial officer's
unreasonable authorization of a search affects one person
at a time; a legislature's unreasonable authorization of
searches may affect thousands or millions and will almost
always affect more than one. Certainly the latter poses
a greater threat to liberty." Krull, 480 U.S. at 365, 94 L. Ed. 2d at 385, 107 S. Ct. at 1175 (O'Connor, J.,
dissenting, joined by Brennan, Marshall and Stevens,
JJ.).
Having successfully distinguished Leon, Justice O'Connor next
pointed out that "the novelty" of the majority's decision was
"illustrated by the fact that [under it] no effective remedy is to
be provided in the very case in which the statute at issue was held
unconstitutional." Krull, 480 U.S. at 368, 94 L. Ed. 2d at 387, 107 S. Ct. at 1177 (O'Connor, J., dissenting, joined by Brennan,
Marshall and Stevens, JJ.). As she noted, the lack of a remedy
leaves no incentive for the aggrieved defendant to challenge the
statute as unconstitutional. Justice O'Connor last questioned how
the limited exceptions to the Krull good-faith exception could be
applied in practice. "Under what circumstances a legislature can be
said to have `wholly abandoned' its obligation to pass
constitutional laws is not apparent on the face of the Court's
opinion." Krull, 480 U.S. at 369, 94 L. Ed. 2d at 388, 107 S. Ct.
at 1177 (O'Connor, J., dissenting, joined by Brennan, Marshall and
Stevens, JJ.).
The State's argument that we should reverse the circuit
court's suppression order is based solely on Krull. Krull is
controlling in this case as to whether there is a federal
constitutional basis for excluding the evidence seized from the
defendant's home. Pursuant to Krull, exclusion of this evidence is
not supportable on the ground that it was obtained by virtue of an
unconstitutional statute. We nevertheless hold that the
exclusionary rule arising out of our state constitution (Ill.
Const. 1970, art. I, 6) continues to afford the protection
abrogated by Krull.
This court unquestionably has the authority to interpret
provisions of our state constitution more broadly than the United
States Supreme Court interprets similar provisions of the federal
constitution. People v. Perry, 147 Ill. 2d 430, 436 (1992). We
acknowledge that this court has long applied the lockstep doctrine
to follow Supreme Court decisions in fourth amendment cases. People
v. Tisler, 103 Ill. 2d 226, 241-46 (1984); People v. Tillman, 1 Ill. 2d 525, 529-30 (1953). We knowingly depart from that tradition
here, for the reasons set forth below.
Initially, we note that our state exclusionary rule has
applied in Illinois for more than 70 years to suppress evidence
gathered in violation of the Illinois Constitution's prohibition
against unreasonable searches and seizures. People v. Brocamp, 307 Ill. 448 (1923) (this court, following the United States Supreme
Court's recognition of the federal exclusionary rule arising out of
the fourth amendment in Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914), recognized a separate state
exclusionary rule arising out of similar language in the Illinois
Constitution); see also Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961) (extending the federal exclusionary
rule by applying it to state governmental officials through the due
process clause of the fourteenth amendment, thereby rendering our
state exclusionary rule superfluous after nearly four decades of
independent application). This exclusionary rule has always been
understood to bar evidence gathered under the authority of an
unconstitutional statute (see Brocamp, 307 Ill. 448 (adopting the
reasoning in Weeks for purposes of our state exclusionary rule);
Weeks, 232 U.S. at 394, 58 L. Ed. at 656, 34 S. Ct. at 345 (making
it clear that the federal exclusionary rule was intended to apply
to evidence gathered by officers acting under "legislative ***
sanction")), so long as that statute purported to authorize an
unconstitutional search or seizure (see Michigan v. DeFillippo, 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979) (recognizing a
substantive-procedural distinction not at issue here; specifically
holding that the fourth amendment exclusionary rule did not apply
where an ordinance was held unconstitutional on vagueness
grounds)). Consequently, to adopt Krull's extended good-faith
exception would drastically change this state's constitutional law.
This court is obliged to evaluate the rationale underlying
Krull in determining whether to adopt its extended good-faith
exception for purposes of the exclusionary rule arising out of our
state constitution. Like the United States Supreme Court, this
court employs a balancing test to delineate the scope of our state
exclusionary rule: "Decisions involving the exclusionary rule and
the Illinois Constitution's article I, section 6, require that we
carefully balance the legitimate aims of law enforcement against
the right of our citizens to be free from unreasonable governmental
intrusion." People v. Tisler, 103 Ill. 2d 226, 245 (1984); cf.
Krull, 480 U.S. at 352-53, 94 L. Ed. 2d at 377, 107 S. Ct. at 1168-
69; Leon, 468 U.S. at 907, 82 L. Ed. 2d at 688, 104 S. Ct. at 3412.
In performing this duty here, we conclude that our citizens' rights
prevail. We are not willing to recognize an exception to our state
exclusionary rule that will provide a grace period for
unconstitutional search and seizure legislation, during which time
our citizens' prized constitutional rights can be violated with
impunity. We are particularly disturbed by the fact that such a
grace period could last for several years and affect large numbers
of people. This is simply too high a price for our citizens to pay.
We therefore conclude that article I, section 6, of the Illinois
Constitution of 1970 prohibits the application of Krull's extended
good-faith exception to our state exclusionary rule.
Not surprisingly, several fourth amendment scholars have
severely criticized Krull. E.g., 1 W. LaFave, Search & Seizure
1.3(h), at 96-99 (3d ed. 1996). Our own appellate court has
determined that the Krull good-faith exception violates the
Illinois Constitution. People v. McGee, 268 Ill. App. 3d 32 (1994).
In addition, several state courts of last resort presumably will
reject Krull's extension of the good-faith exception based on their
determination that the Leon good-faith exception violates their
respective state constitutions. See State v. Guzman, 122 Idaho 981,
842 P.2d 660 (1992); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991); State v. Oakes, 157 Vt. 171, 598 A.2d 119 (1991); State
v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); State v. Carter, 322
N.C. 709, 370 S.E.2d 553 (1988); State v. Novembrino, 105 N.J. 95,
519 A.2d 820 (1987). This result is self-evident because one cannot
reject Leon's good-faith exception and accept Krull's extension of
that exception.
Before concluding, we note that our decision today does not
impact the Leon good-faith exception. See People v. Turnage, 162 Ill. 2d 299, 306 (1994). Although the converse is not true, one can
fully accept the rationale and result in Leon while rejecting the
rationale and result in Krull. This is precisely what Justice
O'Connor did in her dissent in Krull.
For the reasons stated, we affirm the circuit court's
suppression order. The circuit court's judgment is therefore
affirmed in its entirety.
Affirmed.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the
Illinois Constitution forbids in this case what the United States
Constitution clearly allows. I would therefore apply the good-faith
exception recognized by the Supreme Court in Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), and reverse the
circuit court's order suppressing the evidence seized from the
defendant.
In People v. Tisler, 103 Ill. 2d 226, 245 (1984), this court
defined the circumstances under which it is appropriate to
interpret provisions of the Illinois Constitution differently from
their federal counterparts:
"After having accepted the pronouncements of the
Supreme Court in deciding fourth amendment cases as the
appropriate construction of the search and seizure
provisions of the Illinois Constitution for so many
years, we should not suddenly change course and go our
separate way simply to accommodate the desire of the
defendant to circumvent what he perceives as a narrowing
of his fourth amendment rights under the Supreme Court's
decision ***. Any variance between the Supreme Court's
construction of the provisions of the fourth amendment in
the Federal Constitution and similar provisions in the
Illinois Constitution must be based on more substantial
grounds. We must find in the language of our
constitution, or in the debates and the committee reports
of the constitutional convention, something which will
indicate that the provisions of our constitution are
intended to be construed differently than are similar
provisions in the Federal Constitution, after which they
are patterned."
In the present case, the majority does not point to anything
in either the text or history of our state constitution that would
warrant this court in reaching a result different from the one
reached by the United States Supreme Court in Krull. In the absence
of a valid ground for distinguishing the language of article I,
section 6, of the Illinois Constitution from the fourth amendment,
I would adhere to Krull and recognize, in our own state
constitution, a good-faith exception to the exclusionary rule when
searches and seizures are conducted under statutes that are later
held invalid. Because the statute here was not so obviously
unconstitutional as to render the good-faith exception inapplicable
(see Krull, 480 U.S. at 355, 94 L. Ed. 2d at 378-79, 107 S. Ct. at
1170), I would reverse the trial court's order suppressing the
evidence seized in this case.
It should be noted, moreover, that the officers in the present
case were not resting simply on their own interpretations of the
statute but were acting pursuant to a warrant that authorized a no-
knock entry; the warrant is defective only because the statute on
which it depends is now found to be unconstitutional. A number of
the concerns cited by the majority in opposition to Krull are
therefore inapplicable to this case, in which a judicial
intermediary stood between the statute and the search.
Just as the majority follows federal law in evaluating the
validity of the statute under both the federal and state
constitutions, so too should we follow federal law in applying the
good-faith exception to the exclusionary rule. In comparing article
I, section 6, and the fourth amendment, the majority correctly
recognizes, "The language of the two constitutional provisions
concerning unreasonable searches and seizures is nearly identical"
(slip op. at 4), and the majority invokes Tisler and other
decisions involving the fourth amendment in determining that the
statute at issue here is invalid. Having found the statute
unconstitutional under federal law, however, the majority
incongruously fails to follow the same line of authority in
considering the application of the good-faith exception to the
exclusionary rule.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
