People v. Wright

Annotate this Case
People v. Wright, No. 82866 (6/18/98)

Docket No. 82866--Agenda 5--January 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOSEPH
WRIGHT, Appellee.
Opinion filed June 18, 1998.

JUSTICE NICKELS delivered the opinion of the court:
We here again address the constitutionality of a section of the "no-knock"
statute (725 ILCS 5/108--8(b) (West 1994)). In People v. Krueger, 175 Ill. 2d 60
(1996), we held that section 108--8(b)(2) of the Code of Criminal Procedure of
1963 violated constitutional guarantees against unreasonable searches and seizures.
In the instant appeal, we similarly find that section 108--8(b)(1) also fails to meet
constitutional standards.

BACKGROUND
On May 21, 1996, an officer from the Elgin police department presented
a complaint for search warrant in the Kane County circuit court. The complaint
sought a warrant for the search of defendant, Joseph Wright, and his residence. In
an affidavit filed along with the complaint, the officer stated that he obtained
information from a confidential source that defendant was a gang member who
was in possession of approximately 10 grams of rock cocaine and several
handguns. The affidavit further requested a "no-knock" warrant for the safety of
the executing officers, "being that there are firearms in the residence, which are
easily accessible within seconds."
Judge Halleck issued a warrant for the search. In the warrant, Judge
Halleck found sufficient exigent circumstances to justify allowing the officers to
execute the warrant without first knocking and announcing their office. The
warrant did not specify what exigent circumstances the court relied upon in
issuing the no-knock warrant. Elgin police officers executed the warrant in the
early morning. Evidence was allegedly discovered during the search and defendant
was indicted in the circuit court of Kane County and charged with armed violence
and various drug and weapons offenses.
Defendant moved to quash the warrant and suppress the evidence recovered
during the search. In the motion, defendant relied upon this court's recent case of
People v. Krueger, 175 Ill. 2d 60 (1996). In Krueger, this court held that section
108--8(b)(2) of the no-knock statute was unconstitutional because it authorized no-
knock entries by police based solely on an occupant's prior possession of firearms,
without any evidence that the occupants are likely to use the weapons against the
police. Krueger, 175 Ill. 2d at 68-69.
A hearing was held on defendant's motion. At the hearing, the State and
the defendant entered into a stipulation that the warrant was executed on May 21,
1996, at 1:06 a.m., without first knocking and announcing. The State then
presented the testimony of the officer who secured the warrant. The officer
testified that his confidential source observed two firearms and cocaine at
defendant's residence. The firearms were reportedly in plain view, easily
accessible, and had been handled by the defendant. The officer further testified
that the confidential source advised that defendant was a gang member.
The officer also testified concerning information he gathered while doing
surveillance on defendant's residence. The officer testified that he observed known
gang members entering and leaving the premises in the week prior to the search.
Several of these gang members were under investigation for shootings in the area,
and one had been convicted of aggravated discharge of a firearm. The officer
further testified that, at the time of the surveillance and search, friction existed
between several of the area gangs, resulting in some shootings.
The officer was qualified as an expert on gang activity and allowed to give
certain opinion testimony. The officer testified that drug dealers keep firearms as
a means to protect themselves from other drug dealers and rival gang members.
It was the officer's opinion that drugs and firearms are a dangerous mix, and he
noted that some officers had been shot during the execution of search warrants
where guns and drugs were present. The officer also opined that defendant was
likely a high-ranking gang member and therefore a greater target for violence. The
officer believed this fact would make it more likely that defendant would greet the
search with violence. The officer concluded that these facts placed the officers
executing the warrant in danger.
After hearing argument, the trial court granted defendant's motion to quash
the warrant. In its ruling, the trial court noted that it was unclear on what statutory
basis the warrant was issued. The judge may have issued the warrant pursuant to
section 108--8(b)(1), which authorized no-knock entries where firearms are
accessible to any occupant. In the alternative, the trial judge may have issued the
no-knock warrant pursuant to section 108--8(b)(2), which authorized no-knock
entries by police based on an occupant's prior possession of firearms.
The trial court then noted that section 108--8(b)(2) had been held
unconstitutional in Krueger, because it authorized no-knock entries by police
based solely on an occupant's prior possession of firearms, without any showing
that the occupants are likely to use the weapons against the police. Krueger, 175 Ill. 2d at 68-69. The court further reasoned that section 108--8(b)(1) was
indistinguishable from section 108--8(b)(2), in that it similarly did not require any
showing that the weapons were likely to be used to resist the search. Thus, the
trial court held that section 108--8(b)(1) was also unconstitutional.
The trial court then determined whether, absent the statutory authorization,
the officers had a reasonable belief that valid exigent circumstances justified a no-
knock entry. After reviewing the facts presented, the court held that the State
failed to show any exigent circumstances that would justify a no-knock entry.
Therefore, the trial court quashed the warrant and suppressed the evidence
recovered during the search of defendant's residence. The State appealed directly
to this court. See 134 Ill. 2d R. 603; 145 Ill. 2d R. 604(a).

ANALYSIS
A circuit court's ruling on a motion to quash arrest and suppress evidence
generally involves the determination of facts and an assessment of the credibility
of witnesses. A ruling premised on these determinations is subject to reversal on
appeal only where manifestly erroneous. People v. Saechao, 129 Ill. 2d 522, 534
(1989). The instant appeal involves only a pure questions of law and our review
is therefore de novo. Krueger, 175 Ill. 2d at 64.
The fourth amendment, applicable to the states as a principle of due
process through the fourteenth amendment, protects "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." U.S. Const., amend. IV. Section 6 of article I of the
Illinois Constitution of 1970 similarly 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, sec. 6. The
underlying charge of both provisions is that governmental searches shall be
reasonable. Krueger, 175 Ill. 2d at 65.
In Wilson v. Arkansas, 514 U.S. 927, 131 L. Ed. 2d 976, 115 S. Ct. 1914
(1995), the United States Supreme Court held that the reasonableness inquiry
required by the fourth amendment includes whether the police knock and
announce their office prior to gaining entry pursuant to a search warrant. The
Court found that the failure of the police to knock and announce their office prior
to executing a warrant is presumptively unreasonable. However, the Court
recognized that an announcement is not constitutionally required in every case and
certain circumstances may justify an unannounced entry. The Court declined to
catalogue all such exigent circumstances, but noted that an unannounced entry
may be reasonable where officers have reason to believe there exists a threat of
violence or that evidence would likely be destroyed upon an announced entry.
At issue in the present case are sections 108--8(b)(1) and (b)(2) of the
Code of Criminal Procedure of 1963 (725 ILCS 5/108--8(b)(1), (b)(2) (West
1994)). These provisions purport to set forth exigent circumstances, which if found
by a judge, allow for a warrant to be executed without first knocking and
announcing:
"(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:
(1) the presence of firearms or explosives in the building in
an area where they are accessible to any occupant;
(2) the prior possession of firearms by an occupant of the
building within a reasonable period of time." 725 ILCS 5/108--
8(b)(1), (b)(2) (West 1994).
We agree with the trial judge that it is unclear from the record on which statutory
basis the no-knock warrant was issued. We further agree with the trial judge that
both sections suffer from the same constitutional infirmity.
We have previously examined the reasonableness of a no-knock entry
based on an occupant's possession of firearms and drugs. In People v. Condon,
148 Ill. 2d 96 (1992), this court examined whether a valid exigency justified the
unannounced use by police of a battering ram to enter the residence of two armed
drug suspects. The police obtained a warrant after a police informant attested that
he purchased cocaine at the residence and there observed several weapons, a
police scanner, and a closed circuit television system. This court held that no valid
exigent circumstance obtained from the mere presence of firearms used to protect
drugs. Instead, this court noted that the police must show a reasonable belief that
the weapons would be used against them if they proceed with the ordinary
announcements. The court justified its conclusion:
"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.
In People v. Krueger, 175 Ill. 2d 60 (1996), this court carefully examined
the constitutionality of section 108--8(b)(2), which purported to authorize an
unannounced entry based on an occupant's prior possession of firearms. The
circuit court had issued a no-knock warrant pursuant to section 108--8(b)(2) after
an informant reported that drugs and firearms were present at the defendant's
residence.
Relying on Condon, this court again rejected the contention that an
unannounced entry is reasonable based solely on an occupant's possession of
firearms. This court reiterated that the proper standard for an unannounced entry
based on the presence of firearms is a reasonable belief that an occupant will use
a firearm against the police if they proceed with the usual announcements. Thus,
this court ruled that section 108--8(b)(2) was unconstitutional.
The State argues that section 108--8(b)(1) does not suffer from the same
constitutional infirmity as section 108--8(b)(2). The State contends that section
108--8(b)(1), in allowing a no-knock entry where firearms are accessible to any
occupant, indicates a greater concern that those firearms may be used against the
police than the prior possession of a firearm under section 108--8(b)(2). The State
suggests that section 108--8(b)(1) therefore represents a valid exigent circumstance
which justifies a no-knock entry.
We reject the State's attempt to distinguish section 108--8(b)(1) from
section 108--8(b)(2). The constitutional shortcoming identified in Krueger was that
the mere presence of firearms, accessible or not, is not in itself a sufficient exigent
circumstance. Instead, the court made clear that the presence of firearms becomes
a valid exigent circumstance only "where officers have a reasonable belief that an
occupant will use a firearm against them if they proceed with the ordinary
announcements." Krueger, 175 Ill. 2d at 70. Although this standard "is not high"
(Richards v. Wisconsin, 520 U.S. ___, ___, 137 L. Ed. 2d 615, 624, 117 S. Ct. 1416, 1422 (1997)), section 108--8(b)(1) does not require it for the issuance of a
no-knock warrant. Therefore, we find that section 108--8(b)(1) similarly violates
constitutional guarantees requiring searches and seizures be reasonable.
The State further argues that, even if section 108--(b)(1) is unconstitutional,
we should reverse the circuit court's order suppressing the evidence based on the
good-faith exception to the exclusionary rule. The State relies upon Illinois v.
Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), in which the
United State Supreme Court held that the fourth amendment exclusionary rule
does not bar the use of evidence seized by police who reasonably rely in good
faith upon a statute authorizing a search, which is later held unconstitutional. The
Court reasoned that excluding evidence in this situation would not serve the
primary purpose of the exclusionary rule, which is to deter future police
misconduct.
This argument was made in Krueger and rejected. This court in Krueger
found that the exclusionary rule arising from article I, section 6, of the Illinois
Constitution of 1970 provides greater protection in this area than the federal
exclusionary rule under the fourth amendment. In rejecting the holding of Krull,
this court stated:
"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." Krueger, 175 Ill. 2d at 75-76.
The State presents no compelling argument for overruling this aspect of Krueger.
We therefore reaffirm that decision and reject application of the good-faith
exception to the present case.
In its final argument, the State contends that even absent a valid statutory
authorization, traditional constitutional standards justified an unannounced entry
into defendant's residence. The State relies upon the testimony given at the
suppression hearing by the officer who secured the warrant. The officer testified
that he obtained information that defendant was a gang member who had two
firearms at the residence which were easily accessible. The officer also testified
that, while doing surveillance on defendant's residence, he observed known gang
members entering and leaving the premises in the week prior to the search.
Several of these gang members were under investigation for firearm violence, one
had been convicted of aggravated discharge of a firearm. The officer further
testified that there was friction between area gangs that had resulted in some
shootings.
The officer also gave his opinion concerning the danger to officers where
guns and drugs are present. The officer testified that some officers had been shot
during the execution of search warrants where guns and drugs were present. The
officer also opined that defendant was likely a high-ranking gang member. The
officer concluded that these facts placed the officers executing the warrant in
danger. The State therefore contends that the circuit court erred in failing to
uphold the unannounced entry based on these circumstances.
These circumstances are insufficient as a matter of law to justify an
unannounced entry. The Supreme Court has rejected the contention that the
violence which generally surrounds the drug culture can serve as an exigent
circumstance that serves to justify an unannounced entry. In Richards v.
Wisconsin, 520 U.S. ___, 137 L. Ed. 2d 615, 117 S. Ct. 1416 (1997), the United
States Supreme Court reviewed a Wisconsin Supreme Court ruling which created
a blanket exception to the knock-and-announce rule for the execution of warrants
in all felony drug cases. The Wisconsin Supreme Court reasoned that exigent
circumstances were inherent in all felony drug cases because all involve a high
risk to police as well as the potential for the destruction of evidence.
The Supreme Court rejected Wisconsin's blanket exception to the knock-
and-announce rule for felony drug investigations. Instead, the Court made clear
that each case must be reviewed to determine whether the facts and circumstances
of the particular entry justified dispensing with the knock-and-announce
requirement. The Court held that police must have a reasonable suspicion, under
the particular circumstances, that knocking and announcing would be dangerous
or futile, or that it would allow for the destruction of evidence.
Applying this standard, the unannounced entry in the present case was
unreasonable under the fourth amendment. The mere presence of firearms and
drugs is insufficient to justify an unannounced entry. Condon, 148 Ill. 2d at 104-
06. The opinion testimony given by the officer who secured the warrant regarding
the general dangers presented by drugs and firearms does not shed any light on
the violent propensity of this defendant or the likelihood he would attempt to
destroy evidence. Similarly, defendant's purported gang membership, without
more, does not demonstrate a violent nature.
The transient presence at defendant's residence of other gang members,
who may or may not have violent backgrounds, during the weeks before the
execution of the warrant is also insufficient to justify an unannounced entry. No
evidence was presented to support a reasonable suspicion that these individuals
would be at the house at the time of the execution of the warrant. We therefore
agree with the trial court that the no-knock entry by police was constitutionally
unreasonable in the execution of this warrant.

CONCLUSION
We affirm the circuit court's ruling that section 108--8(b)(1) is
unconstitutional. We also affirm the circuit court's ruling that the unannounced
entry by police was unreasonable under constitutional standards. The circuit
court's order quashing the warrant and suppressing the evidence seized is
affirmed.

Circuit court judgment affirmed.

JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the evidence seized in
the present case must be suppressed. The no-knock entry conducted in this case
may be sustained on two separate grounds, and I would therefore reverse the
judgment of the circuit court and remand the cause for further proceedings.
I would note, as a preliminary matter, that the no-knock statute was
amended while the present appeal was pending in this court, and the provision at
issue here is no longer in force. Effective January 1, 1998, the legislature
substantially revised section 108--8 of the Code of Criminal Procedure of 1963,
deleting the provision involved in this case. Pub. Act 90--456, eff. January 1,
1998. Tracking the Supreme Court's opinions in Wilson v. Arkansas, 514 U.S. 927, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995), and Richards v. Wisconsin, 520
U.S. ___, 137 L. Ed. 2d 615, 117 S. Ct. 1416 (1997), section 108--8(b) now
permits a judge to issue a no-knock warrant upon a showing that an announced
entry could lead to violence or result in the destruction of evidence. Because
today's decision involves a statutory provision that no longer exists, its
precedential value is reduced to that extent.
Turning to the merits of the present appeal, I do not agree with the
majority's conclusion that the evidence seized in the present case must now be
suppressed. Even if former section 108--(b)(1) was invalid, the present search may
still be sustained on either of two alternative grounds. First, I must disagree with
the majority's rejection of the good-faith exception to the exclusionary rule, as
recognized by the United States Supreme Court in Illinois v. Krull, 480 U.S. 340,
94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987). For the reasons stated in my dissent in
People v. Krueger, 175 Ill. 2d 60, 76 (1996) (Miller, J., dissenting), I would apply
that exception here, for in this case the police were acting pursuant to what they
believed was a legitimate warrant.
Moreover, I believe that the police had reasonable grounds for a no-knock
entry of the premises in this case, even if the underlying statute was invalid and
the good-faith exception is unavailable. At the hearing on the defendant's
suppression motion, Officer Jeffrey Adam of the Elgin police department testified
that a confidential source had observed cocaine and firearms in the defendant's
residence. The source had also reported that the residence was a gang location and
that the defendant was street gang member, and Officer Adam himself had seen
gang members entering the premises. The source told Officer Adam that the
defendant possessed a number of firearms, which were normally kept out in the
open. Officer Adam testified that this combination of circumstances caused the
officers executing the warrant to fear for their safety.
Police are justified in making a no-knock entry if they "have a reasonable
suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the destruction of evidence."
Richards, 520 U.S. at ___, 137 L. Ed. 2d at 624, 117 S. Ct. at 1421. On this
record, it is plain that the officers in the present case "certainly had a `reasonable
suspicion' that knocking and announcing their presence might be dangerous to
themselves or to others." United States v. Ramirez, 523 U.S. ___, ___, 140 L. Ed. 2d 191, 198, 118 S. Ct. 992, 997 (1998). In my view, the circumstances present
in this case are sufficient to sustain the entry and ensuing search.