287 Ill. App. 3d 700 | Ill. App. Ct. | 1997
No. 2--96--0307
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellant, ) No. 94--CF--1188
)
v. )
)
JODI KAE CARLSON, ) Honorable
) Barry E. Puklin,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE THOMAS delivered the opinion of the court:
The State appeals an order suppressing evidence recovered
during a search that was executed pursuant to an anticipatory
search warrant. The evidence recovered in the search resulted in
the arrest of defendant, Jodi Kae Carlson. The supreme court later
determined that anticipatory search warrants are statutorily
impermissible in Illinois, and the State now argues that the trial
court should have applied the good-faith exception to the
exclusionary rule. We reverse and remand.
On July 26, 1994, defendant was indicted for the unlawful
possession of a controlled substance (psilocybin) with the intent
to deliver (720 ILCS 570/401(a)(11) (West 1994)) and the unlawful
possession of a controlled substance (psilocybin) (720 ILCS
570/402(a)(11) (West 1994)). On February 22, 1995, defendant
filed a motion to suppress evidence, alleging that the police had
searched her home pursuant to an anticipatory search warrant and
that anticipatory warrants are statutorily prohibited in Illinois.
The warrant was issued based on the affidavit of Special Agent
Joseph Bolino of the Illinois State Police. Bolino stated in his
affidavit that on July 12, 1994, he was contacted by Mark Zielke,
a United States postal inspector. Zielke told Bolino that he had
searched an express mail parcel addressed to "Jodi Davis, 804
Midway Drive, Batavia, Illinois 60510." Zielke had obtained
probable cause to search the package through the use of a
narcotics-trained police dog and then applied for and received a
federal search warrant to search the package. The package
contained approximately 400 grams of psilocybin.
Bolino further stated that a United States postal inspector,
wearing the uniform of a United States postal carrier, would
deliver the package to 804 Midway Drive in Batavia on July 13,
1994, and attempt to obtain a signature from the occupant of that
address. According to the affidavit, postal carrier Bill Dahl had
observed mail addressed to Jodi Davis and Jodi Carlson delivered to
804 Midway Drive. Bolino conducted a computer search of the
Secretary of State's data base and located a Jodi Carlson at 804
Midway Drive in Batavia. The affidavit further contained a
description of the residence, obtained by Sergeant Mark Henry of
the Illinois State Police. Henry also observed a vehicle parked at
the residence and discovered that it was registered to Allan
Carlson of Hudson, Wisconsin. Bolino requested an anticipatory
search warrant to be executed only upon the condition that the
package was delivered by the United States postal inspector to 804
Midway Drive in Batavia and accepted by an occupant of the
residence. The affidavit ends with the statement that "This Search
Warrant Shall Not Be Executed Unless All Of The Above Conditions
Are Complied With." The affidavit is signed by Bolino and the
judge.
With the affidavit, Bolino submitted a complaint for a search
warrant, in which he described the residence and asked for
permission to search for and seize (1) psilocybin mushrooms or
substances containing psilocybin mushrooms; (2) paraphernalia used
in the manufacture, processing, delivery, and/or use of psilocybin
or substances containing psilocybin mushrooms; (3) any and all
records of drug sales; (4) items indicative of residency and/or
control of the above-described premises; (5) pagers with memory
features, conventional and cellular telephones with memory/speed
dial-redial features, answering machines, computers, and other
electronic devices; and (6) books, records, receipts, notes,
ledgers, and other papers relating to the transportation, ordering,
purchase, and distribution of substances covered under the Illinois
Controlled Substances Act (720 ILCS 570/100 et seq. (West 1994)).
The warrant was issued in accordance with the complaint, describing
the residence at 804 Midway Drive and authorizing a search of that
residence for the items described in the complaint. The warrant
was issued at 9:25 a.m. on July 13, 1994, and executed at 10:35
a.m. that same day.
The State filed a response to the motion to suppress in which
it argued that in People v. Martini, 265 Ill. App. 3d 698 (1994),
this appellate district had found anticipatory search warrants to
be constitutionally valid. The Appellate Court, Third District,
later held in People v. Ross, 267 Ill. App. 3d 711 (1994), that,
although anticipatory search warrants passed constitutional muster,
they are not permitted under the relevant Illinois statute, section
108--3 of the Code of Criminal Procedure of 1963 (the Code) (725
ILCS 5/108--3 (West 1994)). (The statute has since been amended,
effective August 18, 1995, to include language that would permit
anticipatory warrants. See 725 ILCS 5/108--3 (West Supp. 1995).)
The State argued that the trial court should follow Martini and
find that anticipatory warrants are valid. Alternatively, the
State argued that, if the trial court followed Ross, the court
should apply the statutory good-faith exception to the exclusionary
rule--sections 114--12(b)(1) and (b)(2) of the Code (725 ILCS
5/114--12(b)(1), (b)(2) (West 1994)). Defendant filed a response
in which she argued that Martini addressed the validity of
anticipatory warrants only under the state and federal
constitutions and that Ross was the only published case that
considered the statutory validity of anticipatory warrants. The
trial court followed Martini and denied the motion to suppress.
Seven days after the trial court denied the motion, the
supreme court affirmed Ross (People v. Ross, 168 Ill. 2d 347
(1995)), ruling that anticipatory search warrants are not permitted
by section 108--3. Defendant filed a motion to reconsider, asking
the trial court to reexamine its ruling in light of Ross. The
trial court granted the motion and suppressed the evidence obtained
pursuant to the invalid warrant. The State filed a motion to
reconsider, arguing that the court should apply the good-faith
exception. The court denied the motion on March 12, 1996. the
State then filed a notice of appeal and a certificate of
impairment.
On appeal, the State argues that the trial court erred in
suppressing the evidence recovered pursuant to the anticipatory
search warrant because the officers relied in good faith on the
warrant. We agree. An anticipatory search warrant is a warrant
that is based on an affidavit showing probable cause that at some
future time evidence of a crime will be at a certain place. Ross,
168 Ill. 2d at 350; 2 W. LaFave, Search & Seizure §3.7(c), at 362
(3d ed. 1996). This court has previously adopted the majority view
that anticipatory search warrants are constitutional. See Martini,
265 Ill. App. 3d 698; People v. Galdine, 212 Ill. App. 3d 472
(1991) (collecting cases). As previously stated, the Appellate
Court, Third District, later held that, although constitutionally
permissible, anticipatory warrants were not permitted by section
108--3 (Ross, 267 Ill. App. 3d at 715), and the supreme court
agreed (Ross, 168 Ill. 2d at 354). In Ross, the supreme court
initially determined that section 108--3 was ambiguous. The State
had argued that the plain language of the statute would allow an
anticipatory warrant, while defendant argued that the plain
language of the statute required that a crime must have been
committed before a warrant could issue. The supreme court stated
that both constructions of the statute were reasonable and evenly
plausible. The court then looked to legislative intent and
determined that defendant's construction of the statute was
correct. Thus, the court declared the warrant invalid and upheld
the suppression of the evidence. Ross, 168 Ill. 2d at 351-54.
Nevertheless, Ross did not consider whether the good-faith
exception to the exclusionary rule was applicable. In People v.
Nwosu, 284 Ill. App. 3d 538 (1996), the Appellate Court, First
District, was faced with this issue and found the good-faith
exception applicable. In Nwosu, as in this case, the anticipatory
warrant was obtained and executed before either the third district
or the supreme court had declared such warrants to be statutorily
invalid. Nwosu relied primarily on Illinois v. Krull, 480 U.S.
340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), in which the Supreme
Court extended the good-faith exception to a situation in which the
officers relied on a statute authorizing a warrantless
administrative search and the statute was later declared
unconstitutional. The Nwosu court concluded that there was no
difference between applying the good-faith exception to a search
pursuant to a statute later declared unconstitutional and a search
pursuant to a statute later found to be ambiguous. Nwosu, 284 Ill.
App. 3d at 543. However, in People v. Krueger, 175 Ill. 2d 60, 70-
76 (1996), the supreme court agreed with our holding in People v.
McGee, 268 Ill. App. 3d 32 (1994), that the Krull good-faith
exception is incompatible with our state constitutional guarantee
against unreasonable invasions of privacy (Ill. Const. 1970, art.
I, §6). Pursuant to Krueger, the supreme court vacated Nwosu and
ordered the first district to reconsider its decision. 171 Ill. 2d
578. Krueger does not affect our analysis because, while we agree
with the first district that the good-faith exception should apply
in this situation, we find that Nwosu erred in relying on Krull.
Both Krueger and Krull involved searches based on statutes that
were later declared unconstitutional. Here, the statute was not
invalidated; it was merely interpreted as not permitting
anticipatory search warrants. Krueger and Krull were concerned
with statutes that authorized unconstitutional searches and
seizures, while this case involves anticipatory search warrants,
which have already been found to be constitutional. Here, the
officers were relying on a warrant, the type of which was later
declared invalid pursuant to a statutory interpretation.
Therefore, we find that a traditional good-faith analysis, pursuant
to United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S.
Ct. 3405 (1984), is appropriate. (In Krueger, the supreme court
reiterated that the Leon good-faith exception is still valid in
Illinois. See Krueger, 175 Ill. 2d at 76.)
The Supreme Court first articulated the good-faith exception
to the exclusionary rule in Leon and its companion case,
Massachusetts v. Sheppard, 468 U.S. 981, 82 L. Ed. 2d 737, 104 S.
Ct. 3424 (1984). The court held that evidence should not be
excluded when obtained by the police in objective good-faith
reliance on a subsequently invalidated search warrant. Leon, 468
U.S. at 922, 82 L. Ed. 2d at 698, 104 S. Ct. at 3420; Sheppard, 468
U.S. at 987-88, 82 L. Ed. 2d at 743, 104 S. Ct. at 3427. In Leon,
the police relied on a warrant that was ultimately found to be
unsupported by probable cause. In Sheppard, the police relied on
a warrant that was defective in that it varied from the warrant
affidavit and misstated the items that could be seized. The police
relied on assurances from the trial judge that he had corrected the
warrant form and that it authorized the search they requested. In
both cases the court found that the evidence should not be
suppressed because the police acted in objective good faith in
obtaining the warrants and were entitled to rely on them.
Our supreme court adopted Leon in People v. Stewart, 104 Ill.
2d 463, 477 (1984), and the legislature enacted a statutory form of
the good-faith exception (725 ILCS 5/114--12(b)(1), (b)(2) (West
1994)). The supreme court has stated that the statute codifies
Leon (People v. Turnage, 162 Ill. 2d 299, 306 (1994)), although the
statute is worded somewhat differently. Section 114--12(b)(1)
provides that the court should not suppress otherwise admissible
evidence if it was seized by a peace officer acting in good faith.
The statute then provides two definitions of good faith. The one
applicable to this case provides:
" 'Good faith' means whenever a peace officer obtains
evidence:
(i) pursuant to a search or an arrest warrant obtained
from a neutral and detached judge, which warrant is free from
obvious defects other than non-deliberate errors in
preparation and contains no material misrepresentation by any
agent of the State, and the officer reasonably believed the
warrant to be valid[.]" 725 ILCS 5/114--12(b)(2)(i) (West
1994).
We believe this case falls within the parameters of the good-
faith exception both under the Leon/Sheppard test and the statutory
definition. Applying the Leon/Sheppard test, the police acted in
objective good-faith reliance on a search warrant, the type of
which was later found to be invalid. Applying the statutory
definition, the police obtained a warrant from a neutral and
detached judge, the warrant was free from obvious defects
(anticipatory warrants were not yet declared invalid), contained no
material misrepresentations, and the officers could have reasonably
believed that the warrant was valid. In fact, it is difficult to
imagine a more compelling situation for application of the good-
faith exception. Here, when the police obtained the warrant, the
only case law on anticipatory warrants upheld them as valid.
Further, the supreme court specifically stated in Ross that it
would be reasonable to interpret the statute as allowing
anticipatory warrants and that such an interpretation was equally
as plausible as determining that the statute did not permit
anticipatory warrants. Therefore, the police and the court were
relying on case law upholding the constitutionality of anticipatory
warrants and a statutory interpretation that the supreme court
found to be reasonable. Thus, it is beyond question that the
police were acting in objective good faith when they procured the
warrant.
Further, in Leon the court stated that the purpose of the
exclusionary rule is to deter police misconduct rather than to
punish the errors of magistrates and judges (Leon, 468 U.S. at 916,
82 L. Ed. 2d at 694, 104 S. Ct. at 3417) and that "suppression of
evidence obtained pursuant to a warrant should be ordered only on
a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule"
(Leon, 468 U.S. at 918, 82 L. Ed. 2d at 695, 104 S. Ct. at 3418).
For two reasons that are immediately apparent, excluding the
evidence in this case would in no way deter police misconduct.
First, there was no police misconduct. The police had direction
from the appellate court that anticipatory warrants were
permissible. Second, anticipatory warrants are now statutorily
valid. Following the third district's opinion in Ross, the
legislature amended the statute to include language that would
allow for anticipatory warrants. See 725 ILCS 5/108--3 (West
Supp. 1995). The amended version of the statute became effective
on August 18, 1995. Suppressing the evidence in this case would
not deter police misconduct and thus would not further the purposes
of the exclusionary rule. Professor LaFave has stated that "there
is one situation in which it is quite clear--and, unquestionably,
quite appropriate--that the officer's good faith should prevail
even though the warrant is definitely invalid: where the invalidity
is grounded in a court decision handed down after the warrant was
issued." (Emphasis in original.) 1 W. LaFave, Search & Seizure
§1.3(f), at 92 (3d ed. 1996). Although one could argue that here
the warrant's invalidity was grounded in the statute itself and not
in the court's decision, it was unsettled until the Ross decision
how the statute should be interpreted, and the supreme court found
both interpretations to be reasonable.
Leon identified four situations in which the good-faith
exception should not be applied: (1) where the affiant misleads the
judge or magistrate by using information he knew was false or would
have known was false except for a reckless disregard for the truth;
(2) where the issuing judge or magistrate wholly abandons his
judicial role; (3) where the warrant affidavit is so lacking in
probable cause that official belief in the existence of probable
cause would be entirely unreasonable; and (4) where the warrant is
so facially deficient that the executing officers cannot reasonably
presume it to be valid. Leon, 468 U.S. at 923, 82 L. Ed. 2d at
698-99, 104 S. Ct. at 3421. We find none of these exceptions
applicable to the facts of this case.
As further support for our approach to this issue as opposed
to the first district's analysis, we note that the Supreme Court of
Missouri also used a Leon analysis in the same situation. In State
v. Sweeney, 701 S.W.2d 420 (Mo. 1985), the court was faced with the
same issue that our supreme court was in Ross: whether anticipatory
search warrants were permissible under its statutory search warrant
provisions. The Sweeney court ultimately declined to address the
issue because it concluded that, even if anticipatory warrants were
statutorily impermissible, the Leon good-faith exception would
apply. After concluding that reasonable men could differ as to the
meaning of the statute, the court held that, assuming the warrant
was invalid under the statute, the exclusionary rule would not bar
the introduction of evidence seized by officers who reasonably
relied on the warrant. The court further found that none of the
four Leon exceptions applied and that the trial court properly
admitted evidence "seized by officers acting in good faith on what
they reasonably believed was a valid search warrant." Sweeney, 701
S.W.2d at 426.
Finally, defendant has suggested that the officers could not
in good faith rely on the warrant because it was not even valid as
an anticipatory warrant. The warrant authorized a search of 804
Midway Drive in Batavia for the items previously mentioned.
However, the warrant did not condition its execution upon the
officers first delivering the package. With no citation of
authority, defendant argues that the warrant should not be read in
light of the warrant affidavit because it is the warrant itself
that authorizes the search. The law is contrary to defendant's
position. We have held that reference to the warrant affidavit is
permissible in determining the validity of the warrant. People v.
Bauer, 102 Ill. App. 3d 31, 34 (1981). In United States v.
Moetamedi, 46 F.3d 225 (2d Cir. 1995), the court considered whether
an anticipatory search warrant was invalid because the conditions
precedent to its execution were not stated in the warrant. The
court concluded that such a warrant is valid as long as two
conditions are met: (1) clear, explicit, narrowly drawn conditions
for the warrant's execution are in the affidavit that applies for
the warrant and (2) the conditions are satisfied before the warrant
is executed. Moetamedi, 46 F.3d at 229; see also United States v.
Tagbering, 985 F.2d 946, 950 (8th Cir. 1993) (reference to warrant
affidavit proper when conditions precedent to the execution of the
anticipatory warrant are stated in the affidavit rather than the
warrant and the affidavit was signed by the judge who issued the
warrant). Here, the warrant affidavit listed the condition that
the warrant would not be executed unless the package was delivered
to 804 Midway Drive in Batavia, Illinois, and accepted by an
occupant of that residence. Further, the warrant affidavit was
signed by the judge who issued the warrant. Defendant does not
dispute that the officers did not search the residence until after
the package was delivered. Consistent with the approach taken in
Moetamedi and Tagbering, we do not believe the warrant was invalid
because the warrant itself failed to state the conditions precedent
for its execution. Therefore, we reject defendant's argument that
the officers could not in good faith rely on the warrant.
In sum, we hold that the good-faith exception to the
exclusionary rule applies when the police rely on an anticipatory
search warrant that was issued before such warrants were declared
to be statutorily invalid. Accordingly, we find that the trial
court erred in suppressing the evidence obtained pursuant to the
anticipatory warrant.
The judgment of the circuit court of Kane County is reversed,
and the cause is remanded for further proceedings consistent with
this opinion.
Reversed and remanded.
GEIGER, P.J., and COLWELL, J., concur.
