Lead Opinion
Chief Justice Thomas and Justices Fitzgerald and Karmeier concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion.
Justices Freeman dissented, with opinion, joined by
OPINION
In November 2001, defendant, Jesse Galan, was indicted for possession with intent to deliver 900 or more grams of cocaine and more than 5,000 grams of cannabis. The evidence against him was suppressed by the circuit court of Cook County and the State filed a “Certificate of Substantial Impairment” and brought an interlocutory appeal pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)). The appellate court affirmed.
There are two issues in this case: first, whether Illinois courts must inquire into extradition irregularities for crimes committed within Illinois’ borders; and, second, whether exclusion is the appropriate remedy when Illinois police violate a postarrest provision of another state’s fresh pursuit statute. We reverse.
BACKGROUND
On October 11, 2001, defendant drove his truck onto the Chicago Skyway, entering the Skyway from an Illinois on-ramp. After continuing onto a tollbooth 0.8 miles into Indiana, defendant was stopped by several Chicago police officers. Defendant’s vehicle was searched, and police recovered two boxes filled with marijuana. Defendant was arrested and taken to his mother’s house at 8521 South Burley Avenue in Chicago, where he sometimes resided. Police conducted a search of the house in the presence of defendant and his mother and stepfather, eventually recovering two pistols, approximately $10,000 in cash, and cocaine. A probable cause hearing was held and defendant was eventually indicted by a Cook County grand jury, as indicated above.
Prior to trial, defendant filed a motion to quash arrest and suppress evidence. The motion was filed on July 23, 2002, and requested the trial court to “[qjuash [defendant’s] arrest, because of the absence of authority of probable cause to effect it, and to suppress from introduction into evidence in this cause, the following: (a) Physical evidence discovered and as a result of arrest and detention; (b) Statements, utterances, reports of gestures and responses by petitioner during the detention following the arrest[ ] i.e. oral statements of defendant^] (c) All other knowledge and fruits thereof, witnesses statements, whether written, or oral or gestural and products of the arrest.” Defendant asserted that during his arrest and subsequent detention, the State “became aware of the existence of physical evidence all the direct and indirect fruits of the arrest and detention, which connect petitioner with the instant offense.” The trial court conducted an evidentiary hearing on September 17, 2003.
Defendant testified that he was driving his truck toward Indiana when he was stopped at the tollbooth, past the “mile 1” marker located in Indiana. He stated that several men dressed in plain clothes, who it soon became apparent were Chicago police officers, approached him at the tollbooth with guns drawn and ordered him out of his truck, placed him in handcuffs, and forced him onto the ground. Defendant testified that he did not give the men permission to search his truck. Defendant acknowledged that when the truck was
Defendant testified that the police then took him back to his mother’s house in Illinois. He stated that he occasionally resided at his mother’s house and had come from that address when he was stopped at the tollbooth. Defendant testified that officers knocked on the door of his mother’s house and asked him if they could search the house. Defendant testified that he told the officers they could not search the house. He also testified, though, that his mother eventually opened the door and, upon learning that the police had “busted [defendant] with some marijuana,” agreed, after being asked, to allow the officers to search the home. Defendant maintained that while he later signed a consent to search, he only did so after officers threatened to arrest his mother and stepfather. Defendant acknowledged that in searching the house, police found other contraband. He asserted, however, that this contraband was found before he signed the consent to search.
On cross-examination, defendant testified that after he was removed from his truck by the police, the officers moved him away from traffic and told him he was under arrest. Defendant stated that at this point officers began searching his truck and found the two boxes containing marijuana in the truck’s backseat. Defendant testified that the officers eventually informed him that he was in trouble and they were planning to take him back to the house he had come from, which he understood to be his mother’s house. Following this testimony, defendant answered several more questions regarding the circumstances surrounding the search of his mother’s home.
The State called Officer Brian Luce, one of the Chicago police officers involved in arresting defendant. Luce testified that he was part of the Chicago police department’s narcotics and gangs investigation section. Luce stated that after obtaining information from a confidential informant, police became interested in defendant. This informant indicated that defendant lived at 8521 South Burley Avenue and 9735 Avenue M in Chicago. Moreover, the informant stated that defendant was storing, selling, and manufacturing large quantities of marijuana. Based on this information, the Chicago police department began an investigation, in which Luce took part.
Luce testified that on October 11, 2001, he was conducting surveillance on the Avenue M address as part of the ongoing investigation. Luce indicated that other officers were conducting surveillance on the Burley Avenue address. Luce observed defendant and another individual, Jose Mojica, leave the Avenue M address and drive to the Burley Avenue address in defendant’s truck. Luce saw defendant and Mojica get out of the truck and enter the house at 8521 South Burley. At this point, Luce picked a surveillance spot around the block while another officer set up surveillance on the front door. Luce then received a radio communication from the other officer that defendant and Mojica, who was carrying a white bag, left the house, got back in the truck, and headed back to the Avenue M address.
Luce followed the men back to the Avenue M address and observed Mojica, still carrying the white bag, exit the truck and get into a Nissan Maxima by himself. At this point, part of the surveillance team, including Luce, followed the Nissan, while another part of the surveillance team remained at the Avenue M address. Eventually, a marked police car pulled Mojica over and Luce was informed by radio that Mojica did not have a valid driver’s license
After being informed that Mojica was in custody and a large amount of currency was found, Luce was told to go back to Avenue M and continue surveillance. Luce observed defendant again leave the Avenue M address and return to the Burley Avenue address. Luce testified that another officer saw defendant enter the house and then exit, carrying a brown box. Luce testified that the other officer told him that while taking the box to his truck, defendant was looking up and down the street. Defendant then repeated this action, entering the house, leaving with a second brown box, and taking it to his truck, nervously looking up and down the street.
Luce stated that after defendant entered the truck he pulled away, only to stop approximately 50 to 100 feet from the Burley Avenue address and look up and down the street, watching the cars as they passed. Luce, who was then following defendant, had to drive by in his unmarked vehicle. In driving by, Luce observed defendant looking out his driver’s side window in several different directions. Luce testified that based upon his experience as a Chicago police officer, defendant’s actions constituted countersurveillance or tactics used to see if police are in the area.
After driving by defendant, Luce drove around the block and was informed over the radio that defendant made an illegal U-turn, crossing two lanes. Luce was eventually able to reposition himself behind defendant’s truck. Luce testified that officers continued “moving surveillance” and observed defendant travel from Burley Avenue to Indianapolis Boulevard and then onto 106th Street, where he veered from the far left to the far right lane, without signaling, across three or four lanes of traffic, traveling to the Skyway on-ramp. Luce stated that defendant’s “erratic move from the left [lane] all the way to the right [lane]” led police to believe that their surveillance was compromised. Again, Luce and other officers believed that defendant’s conduct indicated that he was either trying to get away or utilizing countersurveillance tactics to see if he was being followed. At that point, Luce and the other officers agreed to stop defendant’s vehicle to investigate.
Luce testified that officers stopped defendant’s truck “right at the tollbooth” and quickly ran up to the car with guns drawn. Once it was safe, the officers bolstered their guns. Luce stated that when he approached the vehicle and opened the passenger door, he smelled a strong odor of cannabis. Luce testified that he had smelled this odor before while carrying out his duties as a Chicago police officer and it was not easily confused with any other smell. Luce testified that officers asked defendant what was in the boxes and he answered that it was “weed,” a street term for cannabis, and asked if he was in trouble. Moreover, defendant stated that he believed there was 20 pounds of cannabis in the boxes. Luce stated that officers then took defendant out of the truck, pulled it to the side of the highway, and began talking to defendant. During that conversation, officers told defendant what they had seen that day, informed him that he was under arrest, and advised him of his rights.
After reading defendant his rights, Luce continued speaking with defendant, informing him of the ongoing investigation, noting that they had found the cannabis
Luce testified that officers then conducted a search of the residence, in the presence of defendant’s mother and stepfather. As already noted, they recovered two pistols, approximately $10,000 in cash, and cocaine. Additionally, Luce testified that police found an envelope addressed to defendant at 8521 South Burley Avenue. Moreover, Luce stated that he did not make any threats to defendant regarding his parents, nor did he threaten defendant’s parents with arrest in order to gain more cooperation from defendant.
Before the State finished its questioning, Luce testified to one last matter regarding Mojica. Luce testified that he was informed by other officers that when Mojica was stopped and police found him in possession of around $80,000, Mojica lied regarding its origins. Mojica stated that the money was brought to him at a location that officers, based upon their surveillance, knew not to be true. Luce testified, as he had previously, that officers observed Mojica retrieve a white bag from the Burley Avenue address, take that bag to the Avenue M address, exit defendant’s truck with the bag, and then get into the Nissan Maxima with the bag. Surveillance never lost sight of the vehicle or Mojica, and when Mojica was stopped, the bag containing the currency was recovered.
On cross-examination, Luce acknowledged that the informant police relied upon in this case was unknown to him. Additionally, Luce did not know and his report did not indicate that the informant ever saw narcotics inside 8521 South Burley Avenue. Moreover, Luce did not know if the informant, described as a confidential informant, had ever been used in prior cases and Luce’s report did not indicate that the informant was reliable. Luce testified, though, that surveillance was set up based upon the information from this informant.
Luce acknowledged that no one saw where the bag containing currency came from or who gave it to Mojica, merely that Mojica came out of the South Burley Avenue address carrying it. Additionally, Luce admitted that neither he nor any other officers could see through the bag. Moreover, Luce testified that when Mojica was stopped while driving the Nissan Maxima, he was stopped not for any traffic violation or the commission of any crime, but because officers believed that he had something to do with their narcotics surveillance. Essentially, Mojica was stopped solely to see if there were drugs in the bag. While money was eventually found, no narcotics were found in the car, nor was it known, at the time of the stop, that Mojica was operating the car without a valid driver’s license. Additionally, Luce testified that Mojica never told officers that there were narcotics inside the Burley Avenue address, never told officers that he got the money from the Burley Avenue address or from defendant, and never told officers that the money constituted the proceeds of narcotics.
Luce testified further on cross-examination that he could not see what was in the boxes defendant brought from 8521 South
Luce testified that while he could smell cannabis when he approached defendant’s truck, he did not actually see the cannabis until he opened the boxes inside the truck. Luce testified that the boxes were opened without obtaining defendant’s consent. Moreover, Luce stated that before he opened the boxes, and even before he read defendant his rights, he asked defendant what was inside. Luce also testified, though, that before asking defendant what was in the boxes he told defendant that the police were pulling him over because they believed that a narcotics transaction occurred.
On cross-examination, the defense asked several questions and Luce testified extensively regarding the eventual search of the Burley Avenue address. This testimony was unaltered from Luce’s testimony regarding the home search on direct examination. Luce stated that officers brought defendant back to the Burley Avenue address, explained the consent-to-search form to defendant, one of the officers read the form to defendant, Officer Luce filled out the form, and then defendant signed it. Luce testified that he and the officers did not immediately knock on the front door of 8521 South Burley Avenue upon arriving, instead waiting until after defendant had already signed the consent-to-search form.
The parties stipulated to the testimony of another officer who took part in the investigation. Detective Schnoor would have testified that he saw the boxes that were eventually found to contain cannabis being taken out of 8521 South Burley Avenue one at a time by defendant. Moreover, he would have testified that in taking those boxes out defendant looked up and down the street, conduct which he believed indicative of people transporting narcotics. It was also stipulated, however, that this type of behavior could be seen in law-abiding citizens as well.
On October 1, 2003, the motion to quash and suppress came up for argument. Before argument was heard, though, the parties additionally stipulated that private investigator Joe Carone would testify he photographed the tollbooth where defendant was arrested, which was 0.8 miles from the Illinois border, inside Indiana. Defendant argued not only that the arrest at the tollbooth was improper, but also that defendant’s later consent to search was involuntarily given. Defendant contended, while arguing before the trial court, that “[i]f the initial stop is bad everything that happens after that stop is bad, including the consent form, the alleged smell and the stop in the other state, all of that falls.” The State, by contrast, argued that the anonymous tip, the suspicious driving between two houses multiple times in one day, the fact that $80,000 was recovered from Mojica, and defendant’s conduct which officers believed to be countersurveillance, taken together, amounted to probable cause. Considering these arguments, and after making specific factual findings, the trial court agreed with the State that officers had probable cause to arrest defendant and denied defendant’s motion.
On October 28, 2003, defendant filed another motion to suppress, this time specifically
On June 8, 2004, the trial court heard argument regarding defendant’s March 8 motion to vacate and motion to suppress. Defendant asserted that the original motion to suppress, filed on July 23, 2002, and denied by the trial court on October 1, 2003, “concerned itself only solely and exclusively with the search of the car and [defendant’s] arrest and probable cause for his arrest. It did not concern itself in any way with the search *** later that day of defendant’s home.” Defendant contended that the issue of the search at defendant’s home had never been litigated or ruled upon. Defendant acknowledged, though, that the trial court previously denied the motion to quash and suppress with respect to the search of defendant’s car and his arrest.
Supporting the new motion, defendant asserted that the arrest was illegal because it took place in Indiana. Defendant asserted that pursuant to Indiana statutory law, after Chicago police officers arrested defendant, they were required to take defendant before a judge of the Indiana county in which the arrest was made for a bond hearing. Ind. Code Ann. §35 — 33—3—2 (Michie 1998). Because that was not done in this case, defendant contended his arrest was invalid. Based on this argument, defendant asked the trial court to vacate the original denial of the motion to suppress and grant the motion to suppress.
In response, the State acknowledged that defendant should have been brought before an Indiana judge for a bond hearing. The State argued, though, that the failure to do so was harmless and for the trial court “to suppress any evidence recovered by the police officers including a consent to search, including all the cannabis that was found in defendant’s vehicle, including all of the evidence that was found at the address [in] Illinois is too harsh for the circumstances in this case.” The State asserted that the trial court already heard all of the arguments defendant made in this motion in the previous motion, specifically noting that the trial court heard arguments about the legality of defendant’s arrest in Indiana when it considered defendant’s first motion to suppress. Accordingly, the State requested the trial court to again deny defendant’s motion.
The trial court noted that it was undisputed that the arrest in this case took place in Indiana. The court then pointed out that Indiana was not afforded, as required by Indiana statute, the opportunity to determine whether there was probable cause for defendant’s arrest. Ind. Code Ann. §35 — 33—3—2 (Michie 1998). Moreover, extradition procedures required by Indiana statute were not followed. Ind. Code Ann. §35 — 33—3—2 (Michie 1998). In light of the above, the trial court vacated its denial of the original motion to quash and suppress and granted defendant’s new motion to quash and suppress the evidence in Indiana. Having done this, the court set a future date for a hearing on the motion regarding the search of the Burley
With this factual and procedural background in mind, we turn to our analysis.
ANALYSIS
In its petition for leave to appeal, the State presents two arguments. First, the State asserts that an Illinois court need not inquire into extradition irregularities for crimes committed within Illinois’ borders, as such irregularities affect neither the guilt nor the innocence of the accused, nor the jurisdiction of the Illinois court to try a defendant. Second, the State contends that exclusion is not the appropriate remedy in this case. As the facts are not in dispute and these arguments present questions of law, review is de novo. People v. McCarty,
A. Procedural Issues
Before addressing the State’s arguments, we first address several procedural arguments. Defendant asserts that the State’s position is essentially that an individual arrestee may not contest the validity of the arrest and postarrest procedures visited upon him. Defendant contends that this argument was not presented to the trial court by the State and thus is forfeited. People v. O’Neal,
The State asserts that it has sufficiently preserved its claims to survive forfeiture. First, the State argues that defendant mischaracterizes its argument. The State contends that its argument is not premised upon standing, but on the position that irregularities in extradition affect neither the guilt nor the innocence of a defendant, nor the jurisdiction of the court to try him. Defendant, in arguing before the trial court, specifically referenced the extradition clause of the United States Constitution and asserted that in this case, Chicago police officers essentially acted as “kidnappers when they took [defendant] from Indiana back in Illinois.” The State also specifically referred to the extradition clause before the trial court and argued that the officers’ failure to adhere to Indiana’s postarrest statutory procedures was harmless and did not deprive the trial court of jurisdiction to consider the case. Like the parties, the trial court referred to the extradition clause, noting that “what was skipped in this case was the fact that there was no extradition hearing *** we have skipped the extradition proceedings in Indiana and I feel that that is determinative in this case of the law that should be applied.”
Likewise, the State claims that defendant mischaracterizes its argument regarding good faith. The State asserts that it is not arguing for a good-faith exception to the exclusionary rule. Instead, it is the State’s position that the officers in this case did not intentionally ignore Indiana’s statutory scheme and thus the exclusionary
This court has considered the purpose of the forfeiture rule repeatedly, noting:
“ 1 “Failure to raise issues in the trial court denies that court the opportunity to grant a new trial, if warranted. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance.” ’ ” People v. Lewis,223 Ill. 2d 393 , 400 (2006), quoting People v. Enoch,122 Ill. 2d 176 , 186 (1988), quoting People v. Caballero,102 Ill. 2d 23 , 31-32 (1984).
It is apparent in this case that while the State’s arguments regarding extradition and good faith were not as extensively made or fully developed in the lower courts as they are before this court, they were raised and considered. As such, it would not serve the purposes of the forfeiture rule to apply it under these circumstances and we will not do so.
Defendant also contends that this case involves two separate and independent searches, one of defendant’s truck and one of the Burley Avenue address. Defendant asserts that the State’s notice of appeal was limited to the quashing of defendant’s arrest and the search of his car, and thus this court lacks the jurisdiction to determine the validity of the search of the Burley Avenue address. Defendant points out that Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)) provides that the State has the right to appeal from the denial of a motion to suppress and Supreme Court Rule 606 (210 Ill. 2d R. 606) provides that the filing of a notice of appeal is jurisdictional.
This case does involve two separate searches. However, this does not establish that the validity of the search at the Burley Avenue address presents a question beyond this court’s jurisdiction. The record establishes that the trial court was presented with extensive evidence and testimony regarding the search at 8521 South Burley Avenue. Both parties discussed
The fact that defendant later filed a second motion to suppress, this time only referencing the home search, does not alter that fact that the home search was at issue and considered in the first motion to suppress. Considering this, it is not surprising that the trial court did not hold another evidentiary hearing and did not specifically consider the second motion to suppress filed on October 28, 2003, as it seems merely to constitute an attempt to revive a portion of the previously ruled upon motion. The trial court’s discussion of defendant’s later motion to vacate and motion to suppress, filed on March 8, 2004, supports this position. After granting the motion to vacate on June 8, 2004, the trial court initially set a later date to argue the motion to suppress. Instead of waiting until a later date, however, the trial court went back on the record that same day and granted the motion to suppress the evidence seized at 8521 South Burley Avenue. In so doing, the trial court pointed out that the information retrieved at 8521 South Burley Avenue resulted from the “wrongful detention in bringing [defendant] back across the state line,” which was the same basis the court utilized in granting defendant’s motion to vacate.
Our conclusion that this court has jurisdiction to consider the validity of the house search is further supported by the State’s notice of appeal. The notice of appeal referenced two dates of judgment or order: June 8, 2004, and July 21, 2004. As already discussed, the trial court granted defendant’s motion to vacate, thus granting defendant’s first filed motion to suppress (which we find included the evidence seized at the house search), on June 8, 2004. On the same date, the trial court granted defendant’s motion to suppress evidence seized at 8521 South Burley Avenue. The July 21, 2004, date references the trial court’s denial of the State’s motion to reconsider the June 8 ruling. In its motion to reconsider, the State specifically asked the trial court to “reconsider its rulings on June 8, 2004, to reinstate its findings that there was probable cause to arrest Defendant and that the cannabis from Defendant’s vehicle was properly seized, and to find that the evidence seized from the Burley address resulted from a voluntary and properly obtained consent to search.” Accordingly, the State’s notice of appeal adequately referred to the home search.
In light of the above, we find that the State complied with this court’s rules and we will consider the validity of the search of the Burley Avenue address. As already noted, we do not find any of the State’s argument forfeited and will consider the State’s arguments concerning extradition and good faith. Finding that the State has adequately preserved its arguments, we turn to the merits.
B. Merits
The two Indiana statutory sections primarily at issue in this case comprise portions of Indiana’s Uniform Act on Fresh Pursuit. The first section (Ind. Code Ann
“Any member of a duly organized state, county, or municipal peace unit of another state who enters this state in fresh pursuit, and continues within this state in such fresh pursuit of a person in order to arrest him on ground that he is believed to have committed a felony in the other state, shall have the same authority to arrest and hold such person in custody as has any law enforcement officer of this state to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.”
The second section, Ind. Code Ann. §35 — 33—3—2 (LexisNexis 1998), entitled “Arrest — Hearing—Commitment or discharge,” provides:
“If an arrest is made in this state by an officer of another state in accordance with the provisions of section 1 of this chapter, he shall, without unnecessary delay, take the person arrested before a judge of the county in which the arrest was made. The judge shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful, he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state. If the judge determines that the arrest was unlawful, he shall discharge the person arrested.”
The trial and appellate courts found that because the Chicago police officers did not comply with the second statutory section, Ind. Code Ann. §35 — 33—3—2 (Lexis-Nexis 1998), they were not authorized to arrest defendant and thus the evidence against him must be suppressed.
I. The State’s Position
The State points out that in Gerstein v. Pugh,
The State asserts that it complied with the fourth amendment in this case. The State points out that the trial court initially denied defendant’s motion to quash and suppress after a full evidentiary hearing, considering extensive testimony regarding defendant’s arrest, the search of his car, and the search of the Burley Avenue address. Upon reconsidering its rulings, the trial court never questioned the court’s initial findings, this time only altering its ultimate legal conclusion based upon defendant’s statutory argument. Likewise, the appellate court limited its consideration to the legal questions revolving around noncompliance with Indiana’s fresh pursuit statute and whether the proper remedy is suppression.
The State further points out that the arrest was substantively authorized by Indiana statute. In fact, the appellate court specifically noted that “[t]he parties agree that, in compliance with section 35 — 33—3—1 of Indiana’s fresh pursuit statute, the Chicago police were properly in fresh pursuit of defendant, whom the Chicago police believed had committed a felony.”
According to the State, only section 35 — 33—3—2 of Indiana’s fresh pursuit statute was violated, and unless that provision is mandated by a component of the federal Constitution, noncompliance with the section has no bearing on the legitimacy of the arrest or the subsequent actions of the Chicago police and State of Illinois. The State asserts that because this is an Illinois prosecution, in an Illinois court, for offenses committed wholly within Illinois’ borders, and because the arrest complies with the fourth amendment, whether Illinois evaluates the matter with respect to Indiana’s statutory scheme presents a discretionary question premised upon principles of comity. Put simply, the State asserts that the Chicago police officers’ noncompliance with Ind. Code Ann. §35 — 33—3—2 (LexisNexis 1998) did not make defendant’s arrest unlawful.
The State points out that section 35 — 33—3—2 of Indiana’s fresh pursuit statute not only provides an arrestee with a probable cause hearing, but also serves to set forth the initial step in the extradition process which typically takes place in an interstate fresh pursuit scenario. In this case, the State acknowledges that by summarily removing defendant from Indiana and bringing him to Illinois to face prosecution, the Chicago officers bypassed the procedural mechanisms set forth in section 35 — 33—3—2, and indeed the entirety of the statute’s extradition proceedings. Nevertheless, the State argues that this did not offend the extradition clause or the prompt presentment requirements of the federal Constitution.
The extradition clause provides that “[a] Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” U.S. Const., art. iy §2. The State points out, though, that a long line of United States Supreme Court precedent, known as the Ker-Frisbie doctrine, has established that irregularities in the extradition of a fugitive from justice for an otherwise constitutional prosecution “affects neither the guilt nor innocence of the accused, nor the jurisdiction of the court to try him.” Ker v. People,
In the State’s view, the above makes clear that Illinois courts are not required to measure defendant’s arrest by the statutory overlays of Indiana’s postarrest procedural provision. The State asserts that if there is any affront in this case, it is to Indiana and not to defendant. Considering this, the State acknowledges that this court could elect to decline to exercise jurisdiction as a discretionary matter premised upon comity. The State argues, though, that this court should not do so in view of its longstanding adherence to the Ker-Frisbie doctrine, as well as the Supreme Court of Indiana’s adherence to the same. Ker,
Corollary to the above, the State points out that while defendant was not afforded a Gerstein hearing in Indiana as required by Ind. Code Ann. §35 — 33—3—2 (LexisNexis 1998), he was afforded a proper Gerstein hearing in Illinois. Such a hearing, mandated by the fourth amendment, affords a defendant arrested without a warrant prompt “judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein,
In addition to the above arguments, the State asserts that the exclusionary rule is inapplicable to the facts of this case. The State notes that by its plain language, the fourth amendment “contains no provision expressly precluding the use of evidence obtained in violation of its commands.” Arizona v. Evans,
The State asserts that the exclusionary rule was designed to police federal constitutional violations rather than nonconstitutionally compelled state statutory violations, particularly where the arrest itself was constitutionally legitimate. See, e.g., United States v. Caceres,
Considering the above, the State argues that not only is the application of the exclusionary rule not compelled by the federal Constitution, it is also not compelled by this state’s own exclusionary principles. The State points out that this court has noted that “there is no constitutional barrier, other than the fourth amendment, which precludes one jurisdiction from refusing to honor the standards of another relative to the validity of an arrest or search.” People v. Saiken,
Applying the deterrence benefits/societal costs analysis of the exclusionary rule specifically, the State points out that the officers involved in this case were not even aware that they were in Indiana when they arrested defendant. Accordingly, the police officers did not violate Indiana’s statutory procedure for extradition out of disrespect for Indiana’s laws or territorial borders, but because defendant ran for the border. The State notes that the exclusionary rule is “calculated to prevent, not to repair.” Elkins v. United States,
II. Defendant’s Position
Defendant agrees that Chicago police had the authority to follow defendant into Indiana and arrest him, citing Ind. Code Ann. §35 — 33—3—1 (Michie 1998). However, defendant disagrees with the State that officers were free to disregard Ind. Code Ann. §35 — 33—3—2 (Michie 1998). Supporting his position, defendant notes that in United States v. Di Re,
Defendant points out that in Wyoming v. Houghton,
Defendant further argues that this court has rejected the position that Illinois police officers are free to disregard the statutes limiting their jurisdiction. Defendant points to People v. Lahr, where this court considered a situation where a defendant was arrested by a Sleepy Hollow, Illinois, police officer outside of Sleepy Hollow’s boundaries and held that the arrest powers of a law enforcement officer operating “ ‘outside of the respective police authorities’ area of jurisdiction’ ” are circumscribed and limited to those possessed by a citizen. Lahr,
Similarly, defendant points to People v. Carrera,
According to defendant, Lahr and Carrera refute the State’s argument that the existence of probable cause to arrest is the only requirement for a valid arrest. In defendant’s view, it is illogical to contend that a Sleepy Hollow, Illinois, police officer may not use his police arrest powers to arrest outside Sleepy Hollow, Illinois, and that a Chicago, Illinois, police officer may not make a valid arrest supported by probable cause in Franklin Park, Illinois, absent statutory authority, but that the same Chicago police officer has the authority to
Considering the exclusionary rule and its application to the facts of this case, defendant points to Commonwealth v. Sadvari,
Additionally, defendant points to People v. Jacobs,
Further supporting his position, defendant cites United States v. Holmes,
Substantively addressing the State’s argument concerning good faith, defendant asserts that the good-faith doctrine is limited to arrests and searches conducted pursuant to a warrant. Defendant’s argument on this point is brief. Defendant points out that the Supreme Court has stated that “ [reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according ‘great deference’
III. Extradition Irregularities, the Exclusionary Rule, and the Facts of This Case
We agree with the State that defendant’s arrest should not be quashed nor the evidence against him suppressed. The Supreme Court has stated that to determine whether a governmental action violates the fourth amendment, courts must “inquire first whether the action was regarded as an unlawful search or seizure under the common law when the [fourth] Amendment was framed.” Houghton,
Here, the evidence clearly indicates that the Chicago police officers who eventually stopped defendant did so believing that he was engaged in drug trafficking and was attempting to escape. The Chicago police officers were thus in fresh pursuit of a person they suspected to be a fleeing felon. Pursuant to our analysis in Lahr, then, they had the common law authority to effect an arrest of that person outside the territorial limits of the political entity that appointed them. Additionally, there is no question, and defendant has even agreed, that the arrest that occurred in this case was substantively authorized by Indiana statute. See Ind. Code Ann. §35 — 33—3—1 (Michie 1998).
It is also worth noting that defendant’s sole fourth amendment argument before this court revolves around his contention that Chicago police violated Ind. Code Ann. §35 — 33—3—2 (Michie 1998). This is not surprising considering the procedural posture of this case. As already detailed, defendant’s first filed motion to suppress was very broad, requesting the trial court quash his arrest and suppress, among other things, the “ [physical evidence discovered and as a result of arrest and detention” and “[a]ll other knowledge and fruits *** and products of the arrest.” After holding a detailed evidentiary hearing and considering extensive argument on this motion, including evidence and argument regarding the home search, the trial court denied the motion to quash and suppress. Before this court, defendant advances no fourth amendment argument other than that based upon Indiana statute. Accordingly, if we find no fourth amendment violation based upon Indiana statute, there is no other basis argued for us to find such
The Illinois cases defendant cites do not settle this case as a matter of law. Lahr, Carrera, and Jacobs all involved situations distinguishable from this case. In Lahr, the defendant was not a fleeing felon and he was arrested by a police officer using his police authority outside of the territorial limits of the political entity which appointed him. Lahr,
Defendant’s citation to the Holmes decision is similarly distinguishable. While the District of Columbia Court of Appeals touched upon the magistrate provision of Maryland’s fresh pursuit statute similar to the statutory provision at issue in this case, it was also questionable whether the defendant’s arrest was valid. Holmes,
While this court has held that “Illinois law is settled that the exclusionary rule is
Some courts have considered situations involving constitutional extraterritorial arrests that also violated a nonconstitutional statutory provision of a foreign state and been unwilling to invoke the exclusionary rule as a remedy. See State v. Dentler,
By contrast, as defendant describes in detail, other courts have applied the exclusionary rule in situations involving constitutional extraterritorial arrests that also violated a nonconstitutional statutory provision of a foreign state. See Sadvari,
We find the analysis in Dentler, Ferrel, and Bond more persuasive than that found in Sadvari, Jacobs, and Holmes. We find particularly instructive the analysis utilized in Dentler, the most recent case to address this particular issue. After discussing Sadvari and Jacobs, as well as Ferrell and Bond, the Dentler court noted its commitment to the exclusionary rule. Dentler, 742 N.W2d at 87-88. Next, the Dentler court considered the probable cause for the defendant’s arrest and pointed out that while he was not brought before a Missouri magistrate, he was promptly taken before an Iowa judge and thus “afforded the opportunity to test the validity of his arrest before a neutral magistrate promptly after his arrest.” Dentler,
Considering that issue, the Dentler court first asked whether the Missouri statute specifically required the exclusion of evidence and found that it did not. Dentler,
“Because the benefits of violating the magistrate provision are so small, however, the incentive for future violations is not very high. If we are proven wrong in this assessment, the Missouri legislature may withdraw its authorization of Iowa peace officers to engage in fresh pursuit. Further, because this opinion is narrowly based on the unique facts of this case, law enforcement officials have no certainty that the exclusionary rule will be held inapplicable under a different state of facts, particularly where the record demonstrates willful misconduct. Finally, in the unlikely event that such violations become a recurrent problem, this court reserves the right to exercise its supervisory powers to exclude the evidence in future cases. [Citations.]” Dentler, 742 N.W2d at 90.
As in Dentler, aside from the fact that Chicago police failed to comply with the magistrate provision of Indiana’s fresh pursuit statute, defendant’s arrest was valid. Defendant’s arrest complied with the fourth amendment, its common law antecedents, and Indiana statute. Likewise, while defendant was not brought before an Indiana magistrate, he was promptly taken before an Illinois judge and thus afforded the opportunity to promptly test the validity of his arrest before a neutral magistrate. Accordingly, defendant’s due process rights were not violated. See Six Feathers,
We do not believe that the violation of Ind. Code Ann. §35 — 33—3—2 (Michie 1998) mandates the exclusion of the evidence arrayed against defendant. First, the statutory language itself does not mandate exclusion or even mention it. People v. Jones,
Ind. Code Ann. §35 — 33—3—2 (Michie 1998) appears to have two main purposes.
Considering the exclusionary rule itself, we note that the Supreme Court has stated that “ [suppression of evidence *** has always been our last resort, not our first impulse,” and applied the rule only where its deterrence benefits outweigh its substantial societal costs.
“[T]he exclusionary rule that accompanies the fourth amendment has no constitutional footing. Instead, it is a judicially created, prudential remedy that prospectively protects fourth amendment rights by deterring future police misconduct. [Citations.] Its application has been trimmed to instances where its remedial objectives will be most effectively served. [Citation.] That is, it applies only where its deterrent benefits outweigh its substantial social costs.” Willis,215 Ill. 2d at 531-32 .
Indeed, we have recognized that “[t]he State does not violate the fourth amendment when it introduces evidence obtained in violation of the fourth amendment. [Citation.] Rather, a fourth amendment violation is ‘fully accomplished’ by the illegal search or seizure, and excluding evidence cannot undo the invasion of the defendant’s rights.” Willis,
The deterrence benefits/societal costs analysis supports this position. Here, the Chicago police officers involved were not even aware that they were in Indiana when they arrested defendant. Accordingly, the arrest did not involve any police misconduct, willful disregard for the laws of Indiana or its territorial borders, or false representations of law designed to improperly obtain evidence. Additionally, as the Iowa Supreme Court recognized in Dentler, the benefits of violating another state’s statutory magistrate provision are so small, any incentive for future violations is low. Dentler,
While we choose not to apply the exclusionary rule in this case, we could elect to utilize it based upon principles of comity. Sadvari,
With this opinion, we reaffirm our adherence to the Ker-Frisbie doctrine. Ker,
CONCLUSION
We reverse the judgment of the appellate court affirming the decision of the trial court. We thus reinstate the trial court’s original determination that defendant’s motion to quash and suppress be denied and remand the cause to the circuit court for trial.
Reversed and remanded.
Notes
In discussing the exclusionary rule, we feel it worth mentioning that apart from his reference to Sadvari,
Concurrence Opinion
specially concurring:
While the majority correctly reverses the judgment of the appellate court, it omits any discussion of the appellate court’s reasoning and fails to explain why that reasoning was in error. I write separately to do so.
The appellate court provided a straightforward analysis in support of its decision to affirm the circuit court’s granting of defendant’s motion to suppress. At the outset, the appellate court noted that there was no dispute in this case that the Chicago police officers who arrested defendant in Indiana were in fresh pursuit when they crossed the state line. The appellate court further noted that section 35 — 33—3—1 of Indiana’s fresh pursuit statute (Ind. Code Ann. §35 — 33—3—1 (Michie 1998)) provides the statutory authority for an out-of-state officer to effect an arrest in Indiana when the officer is in fresh pursuit. Section 35 — 33—3—1 states:
“Any member of a duly organized state, county or municipal peace unit of another state who enters this state in fresh pursuit, and continues within [Indiana] in such fresh pursuit of a person in order to arrest him on ground that he is believed to have committed a felony in the other state, shall have the same authority to arrest and hold such person in custody as has any law enforcement officer of this state to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.” Ind. Code Ann. §35 — 33—3—1 (Michie 1998).
The appellate court then observed, however, that the Chicago officers, in violation of section 35 — 33—3—2 of the Indiana statute (Ind. Code Ann. §35 — 33—3—2 (Michie 1998)), failed to bring defendant before an Indiana judge before returning him to Illinois. Section 35 — 33—3—2 provides:
“If an arrest is made in this state by an officer of another state in accordance with the provisions of section 1 of this chapter, he shall, without unnecessary delay, take the person arrested before ajudge of the county in which the arrest was made. The judge shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful, he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state. If the judge determines that the arrest was unlawful, he shall discharge the person arrested.” Ind. Code Ann. §35 — 33—3—2 (Michie 1998).
The appellate court concluded, as a matter of statutory interpretation, that the police officers’ failure to comply with the presentment requirements of section 35 — 33— 3 — 2 rendered defendant’s arrest statutorily invalid. The court explained:
“Chicago police officers had no inherent authority to effect an arrest in Indiana; rather, the Chicago police officers’ authority to make an arrest in Indiana was derived from Indiana’s fresh pursuit statute and the authority provided by the Indiana statute is conditioned by the requirement that an accused shall be brought before an Indiana judge for a determination of the lawfulness of the arrest. Accordingly, under the rationale of People v. Jacobs,67 Ill. App. 3d 447 , which we endorse, defendant’s arrest was unlawful.” (Emphasis added.)367 Ill. App. 3d at 881 .
According to the appellate court, the presentment requirement in section 35 — 33—3—2 was a condition precedent to the authority granted in section 35 — 33— 3 — 1. The failure to comply with the presentment requirement meant that the officers had no statutory authority to arrest defendant.
The appellate court then pointed to this court’s decision in People v. Carrera,
In my view, the appellate court erred in its reading of the Indiana fresh pursuit statute and in its conclusion that defendant’s arrest was statutorily unauthorized. It is a well-settled rule that we may not depart from the plain language of a statute by reading into it exceptions, limitations, or conditions. People v. Martinez,
Of course, having determined that the Chicago police officers were authorized to arrest defendant, there still remains the entirely separate question as to whether the exclusionary rule should be applied when police officers inadvertently fail to comply with the presentment requirement of section 35 — 33—3—2. For the reasons stated by the majority (see
Dissenting Opinion
dissenting:
Unlike the majority, I believe that this case presents a straightforward question of statutory construction. After examining the plain language of the Indiana fresh pursuit statute, the comments of the drafters, and the relevant precedent, I believe that the lower courts correctly held that application of the exclusionary rule is appropriate in the matter before us. I therefore dissent.
Indiana has enacted a statutory scheme that sets forth procedures to be followed when out-of-state law enforcement officers, who are in “fresh pursuit” of a suspect, arrest that person in Indiana. Ind. Code Ann. §§35 — 33—3—1 through 35 — 33—3—5 (Michie 1998). As a prefatory note, this statutory scheme abrogated the common law principles relating to extraterritorial arrests. At common law, a limited exception developed to the general rule confining the authority of an officer to a geographic area which allowed an officer who is in “fresh pursuit” of a suspected felon to make a legally binding arrest in a territorial jurisdiction other than the one in which he has been appointed to act. People v. Clark,
In construing the meaning of a statute, the court’s primary objective is to ascertain and give effect to the intent of the drafters (Michigan Avenue National Bank v. County of Cook,
Section 35 — 33—3—1 of Indiana’s statute bestows limited authority upon the police officer of another state to arrest an individual in Indiana, and specifically sets forth the circumstances under which a non-Indiana officer may enter that state and make an arrest:
“Any member of a duly organized state, county or municipal peace unit of another state who enters this state in fresh pursuit, and continues within [Indiana] in such fresh pursuit of a person in order to arrest him on ground that he is believed to have committed a felony in the other state, shall have the same authority to arrest and hold such person in custody as has any law enforcement officer of this state to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.” Ind. Code Ann. §35 — 33—3—1 (Michie 1998).
The plain language of section 35 — 33—3—1 reveals that the Indiana statute provides authority to an out-of-state law enforcement officer to make an arrest in Indiana, so long as that officer enters Indiana in “fresh pursuit” of that suspect. The statute defines “fresh pursuit” in three ways: as it was “defined by the common law,” as “the pursuit of a person who has committed a felony or who reasonably is suspected of having committed a felony,” or “the pursuit of a person suspected of having committed a supposed felony, though no felony actually has been committed, if there is reasonable ground for believing that a felony has been committed.” Ind. Code Ann. §35 — 33—3—5 (Michie 1998). The statute further instructs that “[fjresh pursuit shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.”
The Indiana statute additionally departs from common law by setting forth with specificity not only the steps that must be taken by an out-of-state police officer after he makes an arrest within Indiana, but also those which must subsequently be taken by the Indiana court. Section 35 — 33—3—2 provides:
“If an arrest is made in [Indiana] by an officer of another state in accordance with the provisions of section 1 of this chapter, he shall, without unnecessary delay, take the person arrested before a judge of the county in which the arrest was made. The judge shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful, he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of [Indiana]. If the judge determines that the arrest was unlawful, he shall discharge the person arrested.” Ind. Code Ann. §35 — 33—3—2 (Michie 1998).
Thus, the Indiana legislature conditioned an out-of-state officer’s authority to make an extraterritorial arrest in Indiana upon the officer’s compliance with the dictate that the officer “shall, without unnecessary delay, take the person arrested before a judge of the county in which the arrest was made.” (Emphasis added.) Ind. Code Ann. §35 — 33—3—2 (Michie 1998). The use of the word “shall” generally indicates a mandatory requirement. See, e.g., Village of Winfield v. Illinois State Labor Relations Board,
Under the plain language of the Indiana statute, the question of whether the officer has made the arrest in fresh pursuit is only the threshold inquiry. The arrest is dependent upon the subjective belief of the arresting officer that there is probable cause that the person committed a criminal offense. The officer’s subjective belief is then tested when the facts and circumstances of the encounter are presented to an objective, neutral magistrate. It is only when this magistrate determines that the arrest is lawful that the extraterritorial arrest is deemed complete. This “presentment requirement” is a statutory procedure that did not exist at common law. The requirement advances several important interests. It promotes comity and ensures that the sovereignty of the state entered into by outside officers is preserved; it protects the rights of a person who has been subject to an extraterritorial arrest; and it encourages future compliance with the statutory provisions. Thus, the presentment requirement is an important component of a statutory scheme designed to balance the interests of law enforcement with the rights of the arrestee. It is only by giving meaning to all provisions of the fresh pursuit statute that this balance can be achieved. This interpretation of Indiana’s fresh pursuit statute ensures that no provision is rendered superfluous.
My reading of the Indiana statute is supported by an examination of the intent of the drafters of the Uniform Act on Fresh Pursuit of Criminals Across State Lines (Uniform Act), from which the Indiana statute was derived.
“In the foreign state, the pursuing officer from the State where the crime is committed is, in general, no longer an officer. This *** is remedied in a simple manner by this act. Thereunder, the moment an officer in fresh pursuit of a criminal crosses a state line, the state he enters will authorize him to catch and arrest such criminal within its bounds. The statute grants this right only when the officer is in fresh pursuit of a criminal, that is, pursuit without unreasonable delay, by a member of a duly organized peace unit, and only in cases of felonies or supposed felonies occurring outside the boundaries of the state adopting the act. It is thus based upon the little-known common-law doctrine of fresh pursuit, from which the statute has derived its name.” Council of State Governments, The Handbook on Interstate Crime Control 147 (1978).
The drafters of the Uniform Act thus believed that the Act would be of benefit to police officers, because although it was
The Uniform Act, however, was also intended to be of similar benefit to the person arrested under its provisions. The drafters noted that the Act “protects the rights of the person taken into custody, by providing that he shall without unnecessary delay be given a hearing before a magistrate, and requires his extradition if the arrest was lawful.” Council of State Governments, The Handbook on Interstate Crime Control 150 (1978). In other words, in the Uniform Act “[sjimple provisions are made to safeguard the rights of the arrested person and to provide for his return to the state where he committed the crime.” Council of State Governments, The Handbook on Interstate Crime Control 147 (1978). Thus, it is apparent that the drafters of the Uniform Act intended to delicately balance the competing interests of law enforcement in allowing extraterritorial arrests with the rights of the state in which the arrest occurred and the rights of the person taken into custody. Accordingly, based upon a straightforward interpretation of the Indiana fresh pursuit statute, it is my conclusion that because the Chicago officers failed to comply with that statute’s provisions, defendant’s extraterritorial arrest was made without statutory authorization.
The majority, however, not only fails to construe Indiana’s fresh pursuit statute, but also fails to answer the question of whether defendant’s arrest was unauthorized due to the Chicago officers’ noncompliance with the Indiana statute. Instead, the majority skips over this necessary analysis and concludes that the exclusionary rule is not an appropriate remedy for the officers’ noncompliance with the fresh pursuit statute. The majority’s treatment of the issue renders the presentment provisions of the Indiana statute superfluous and a nullity. It is only when the Indiana statutory scheme is properly understood that the importance of the need for the application of the exclusionary rule for its violation becomes apparent.
Like the majority and the special concurrence, I acknowledge that the Indiana statute on fresh pursuit is silent as to the remedy for its violation. However, this question has been addressed by courts in other jurisdictions. Some courts have been unwilling to invoke the exclusionary rule as a remedy to an unlawful extraterritorial arrest. See, e.g., State v. Dentler, 742 N.W2d 84 (Iowa 2007); State v. Ferrell,
In Sadvari, two Pennsylvania state troopers, while on patrol near the Pennsylvania-Delaware border, observed a vehicle driven by the defendant, a Delaware resident, which was speeding. The troopers pursued the vehicle and, shortly after crossing into Delaware, they activated their emergency lights and stopped the defendant approximately four-tenths of a mile inside the State of Delaware. Sadvari,
Prior to trial, Sadvari moved to suppress evidence related to the traffic stop as the product of an unlawful arrest. According to the defendant, his arrest was unlawful because it was not conducted in accordance with Delaware’s fresh pursuit statute. The trial court found that the Pennsylvania officers had probable cause to stop Sadvari and that the Delaware statute granted them authority to enter Delaware while in fresh pursuit and conduct an arrest. Sadvari,
The Pennsylvania Supreme Court reversed. That court first noted that, as is the case with the Indiana statute in the instant appeal, the Delaware statute also derived from the Uniform Act on the Fresh Pursuit of Criminals Across State Lines. Sadvari,
The Sadvari court then considered the appropriate remedy for the statutory violation and concluded that suppression of the evidence obtained as a result of the unlawful arrest was warranted. The court conceded that not every violation of a statute or rule requires suppression. On the one hand, the court observed that it could be argued that the Delaware statute merely duplicated the framework provided by Pennsylvania law and its procedural rules for safeguarding a defendant’s constitutional rights; therefore, in individual cases a remedy as exacting as suppression should not be deemed necessary. The court found, however, that the Delaware statute, with its directive that an out-of-state officer present the arrestee to a Delaware judicial tribunal for review of the lawfulness of an arrest conducted in Delaware, “functions as more than merely an extradition statute, and that a contrary interpretation would render empty the mandate of the Delaware law.” Sadvari,
As stated, I find the Pennsylvania Supreme Court’s reasoning and holding in Sadvari to be persuasive. Its analysis most closely mirrors the intent of the drafters of the Uniform Act and is true to the language of the statute by giving each provision meaning. The Sadvari decision also highlights the several important interests that are affected by operation of the fresh pursuit statute: a demonstration of comity to vindicate the sovereignty of the state that has experienced the incursion of out-of-state officers; encouragement of future compliance with the provisions of the statute; and the protection of a defendant’s rights to due process and to be free from unlawful seizures. It is my view that Sadvari appropriately balances these important interests against the similarly important interest in furthering legitimate law enforcement objectives in allowing extraterritorial arrests, and arrives at the correct result.
However, although Sadvari is factually analogous to the matter before us, and is relied upon by defendant in his arguments to this court and by the appellate court in its opinion below, neither the majority nor the special concurrence discuss why Sadvari is not persuasive. Instead, the majority states that it finds the analysis in Dentler “particularly instructive” (
Further, and perhaps more importantly, support for my position is found in our own, well-settled, state jurisprudence. Almost 30 years ago, our appellate court in People v. Jacobs,
“The defendant was indeed illegally arrested since the Illinois police officers had no authority to arrest him in the State of Iowa except for that authority granted to them by the Uniform Fresh Pursuit Law of the State of Iowa. [Citations.] ***
***
*** [The statute] mandates that an out-of-State police officer, after effecting an arrest, shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful, he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor. [Citation.]
None of the mandates set forth in the Uniform Fresh Pursuit Law of Iowa were complied with by the arresting officers from Illinois. They were both blithely and summarily ignored and the defendant immediately upon his return to Illinois was subjected to intensive interrogation.” Jacobs,67 Ill. App. 3d at 449-50 .
I find the reasoning in Jacobs to be persuasive and note that this case has been law in this state for nearly three decades. I also observe that the failure of the officers in Jacobs to bring the defendant before an Iowa magistrate immediately following his arrest allowed the Illinois officers to return the defendant to Illinois and to conduct an immediate and lengthy interrogation in which they were able to gather additional evidence against the defendant prior to taking him before an Illinois judge. This factual scenario mirrors that in the matter at bar, where the officers returned defendant to Illinois and, rather than taking him before an Illinois judge, first took a detour to the home of defendant’s mother and engaged in a “consent” search of those premises in an effort to gather additional evidence against defendant prior to taking him before an Illinois judge.
I further note that the fact that it has been nearly three decades since our
I note that, although factually not directly on point, this court in People v. Carrera,
In support of its holding that defendant’s arrest should not be quashed nor the evidence against him suppressed, the majority engages in a quick and summary disposal of defendant’s reliance upon Jacobs, Lahr, and Carrera. The majority states that the “cases defendant cites do not settle this case as a matter of law” (emphasis added) (
“In Carrera, the defendant was arrested by police officers utilizing a statute that was later declared void ah initio. [Citation.] Accordingly, this court held that the defendant’s arrest was unlawful.”229 Ill. 2d at 515 .
This is the sum and substance of the majority’s factual distinction of Carrera from the matter at bar. I believe that this is a distinction which fails. The fact that the statute at issue in Carrera was void ab initio was not what animated this court to hold that “Illinois law is settled that the exclusionary rule is applicable where the police effectuate an extraterritorial arrest without appropriate statutory authority.” Rather, this court relied on its prior decision in Lahr, which had already established this proposition. In addition, it was the fact that the officers were acting without legal authority — just as alleged in the
In sum, courts of this state have long used the exclusionary rule to protect the rights of defendants outside of the constitutional context. To hold as the majority does today renders the provisions of Indiana’s fresh pursuit statute a nullity. The majority fails to adhere to the familiar tenets of statutory construction: it fails to afford plain meaning to the language of the Indiana statute; it fails to adhere to the intent of the drafters of the Uniform Act; it fails to afford appropriate recognition to the principles of comity to vindicate Indiana’s sovereignty; it fails to safeguard the protections intended to be afforded to defendants by the statute; and it fails to follow our own precedent. In rendering the provisions of the Indiana fresh pursuit statute superfluous, the majority leaves the distinct impression that Illinois law enforcement officers may freely disregard statutory limits on their jurisdiction with no adverse consequences. In light of the fact that Illinois has enacted a similar fresh pursuit statute, I question whether out-of-state officers who make an extraterritorial arrest on our own soil would feel compelled to comply with the provisions of the Illinois statute after today’s decision. More importantly, would an Indiana court feel compelled to follow the dictates of the Illinois General Assembly, when this court so freely ignores the will of the Indiana legislature?
For all the foregoing reasons, I cannot join the opinion of the majority.
JUSTICE KILBRIDE joins in this dissent.
I note that in the circuit court, defendant raised in his motion to vacate the denial of his motion to suppress the argument that, based upon the testimony of Officer Luce, “prior to the defendant’s arrest at the [Indiana] toll booth the police officers rejected multiple convenient opportunities to arrest the defendant” while he was still in Illinois, and that the “officers themselves chose both the time and place to arrest defendant.” The circuit court, however, did not have occasion to address defendant’s contention that the officers were not engaged in “fresh pursuit” of him in its factual findings, as the State conceded in the trial court that the arrest took place in Indiana and the Chicago officers did not follow the mandates of the Indiana statute. Having prevailed on the suppression motion in the circuit court, defendant has not pursued this argument on appeal. Although I do not express an opinion as to the merits of defendant’s argument with respect to whether the Chicago officers were actually in “fresh pursuit” of him at the time the arrest was made, I do note that a review of Officer Luce’s testimony at the suppression hearing indicates that the officers may have had ample opportunity to stop defendant in Illinois, including when defendant parked for a minute at the side of the road near the Burley Avenue address and also after he made what Luce described as an “illegal” U-turn in that same area. It would have been interesting to see how the Indiana court would have ruled on this argument, had the officers complied with the statute and the Indiana court had the opportunity to hear the case.
I note that Illinois also has a “fresh pursuit” statute which is derived from the Uniform Act and which, like Indiana’s statute, allows an out-of-state law enforcement officer who is in fresh pursuit of a suspect to arrest that person in Illinois as long as the officer “without unnecessary delay takes[s] the person arrested before the circuit court of the county in which the arrest was made” so that the court can “conduct a hearing for the purpose of determining the lawfulness of the arrest.” 725 ILCS 5/107 — 4 (West 2006).