People v. Carrera

783 N.E.2d 15, 203 Ill. 2d 1, 270 Ill. Dec. 440, 2002 Ill. LEXIS 1644

• Court: Illinois Supreme Court
• Decided: December 19, 2002
• Docket: 91465
• Status: Published

Opinions

JUSTICE FREEMAN

delivered the opinion of the court:

Following a stipulated bench trial, the circuit court of Cook County convicted defendant of three counts of possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(B), (a)(2)(C), (a)(2)(D) (West 1996)) and sentenced him to concurrent terms of 15 years of imprisonment. The appellate court found that the police did not have authority to arrest defendant. Consequently, the court reversed the circuit court’s denial of defendant’s second motion to quash arrest and suppress evidence and remanded for further proceedings. 321 Ill. App. 3d 582. We granted the State’s petition for leave to appeal (177 Ill. 2d R 315(a)). For the reasons that follow, we affirm the judgment of the appellate court.

BACKGROUND

On August 26,1997, Chicago police officers conducted surveillance of defendant’s home in Franklin Park, Illinois. The officers observed defendant leave his home and drive to a storage facility in Schiller Park, Illinois. Defendant entered the storage facility and returned to his car carrying a bag. Upon his return home, the officers confronted defendant and learned that the bag contained a controlled substance. The officers arrested defendant. Subsequently, defendant signed consent forms for the search of his home and a locker at the storage facility in Schiller Park. The officers recovered controlled substances from defendant’s garage and storage locker.

The State charged defendant with three counts of possession of a controlled substance with intent to deliver. Following his indictment, defendant moved to quash his arrest and to suppress the evidence recovered by the police officers. Defendant argued that the officers did not have probable cause to effectuate his arrest. Consequently, defendant maintained, the contents of the bag, as well as certain evidence recovered from his home, garage, and storage locker, should be suppressed.

The circuit court held a hearing on defendant’s motion to quash arrest and suppress evidence. At the hearing, defendant testified that on August 26, 1997, he retrieved a brown paper bag from his storage locker in Schiller Park and placed the bag in the trunk of his car. Upon his return home, he exited the car and opened the trunk, intending to remove the bag. However, before he could do so, he saw the police approaching. One police officer told him to put his hands on top of the car. The offleers then grabbed the bag and the car keys and handcuffed him. They asked him whether he lived at the Franklin Park residence and who was inside the house. Upon being told that defendant’s wife and three children were inside the house, the officers entered the house with defendant. Once inside the house, the officers had defendant, defendant’s wife and their children sit in the living room. The officers threatened that defendant and his wife would be sent to jail and the children removed from their care. The officers asked defendant if he had anything in the house. Defendant replied that he had a scale in the basement, whereupon three officers took defendant to the basement to look for the scale. The officers recovered the scale. They then told defendant that the law required that he sign consent forms for the search of the house and things would be hard for him if he did not. Defendant signed the forms. Back upstairs, the officers searched the house. The officers transported defendant to a Chicago police station.

Rosa Elaina Carrera, defendant’s wife, also testified at the hearing. She stated that defendant left the house at 12 p.m. on August 26, 1997. At 12:30 p.m., the door opened and four police officers entered, along with defendant. One officer asked her to bring the children to the living room and sit next to them. He told her that there were some problems and he was going to arrest her. The officers sat defendant in the living room as well. In defendant’s presence, the officers told Mrs. Carrera that they were going to arrest her. They also added that they would take her daughters away and she would not see defendant again. The officers then asked defendant what else he had in the house. Defendant replied that he had a scale in the basement. Three officers accompanied defendant to the basement. One officer stayed to watch Mrs. Carrera and the children. While the other officers were in the basement with defendant, the police officer continued to threaten her. Approximately 20 minutes later, the officers and defendant returned from the basement. The officers proceeded to search the house. Eventually, two other officers arrived at the house. These officers told Mrs. Carrera that they would not take her or the children. Yet later, as the police officers were about to leave the house with defendant, a police officer from Franklin Park arrived at the house.

Officer Joseph DiGiacomo testified next. On August 26, 1997, he was employed by the Chicago police department. He received information that a Hispanic male named Rudolfo, who drove a gray Mercury Marquis, was dealing drugs from his residence at 3112 N. Emerson in Franklin Park. Officer DiGiacomo testified that he, along with Sergeant DeAntonio, Officer Cane, Officer Herrera, Officer Horton, and Officer Rowan, all of the Chicago police department, proceeded to Franklin Park. The officers drove separate cars. Each officer carried a gun, a badge, and a pair of binoculars. The officers communicated via walkie-talkie. In Franklin Park, the officers set up surveillance at defendant’s home. At 12:30 p.m., defendant left his home and drove away in a car matching the description provided by the informant. The officers followed defendant to the storage facility in Schiller Park. Shortly after defendant entered the facility, he returned to his car carrying a brown paper bag, which he placed in the trunk of the car. The officers followed defendant back to Franklin Park. The officers had not observed defendant commit any crimes up to this point. Also, the officers had not received any information regarding defendant’s use of a storage locker in connection with the alleged sale of drugs at the Franklin Park residence.

Once home, defendant exited the car, opened the trunk and pulled the bag from the trunk. Acting on a “hunch,” Officer DiGiacomo and the other officers “converged” on defendant. Officer DiGiacomo explained that, as he exited his vehicle, he confronted defendant, stating: “Police officer. What do you have in the bag.” Defendant replied that he had drugs in the bag and handed the bag to Officer DiGiacomo. Officer DiGiacomo opened the bag and saw what he suspected to be cocaine.¹ Officer DiGiacomo placed defendant under arrest.

Officer DiGiacomo further testified that Officer Herrera advised defendant of his rights in Spanish. Officer DiGiacomo then asked defendant how much more cocaine he had in the storage locker. Defendant replied that he had two kilos of cocaine in the locker. Next, defendant asked to go inside the house.² Once inside, defendant signed consent forms in Spanish for the search of the house and storage locker. Officer DiGiacomo recovered suspected cocaine from defendant’s garage and storage locker.

Officer Herrera was the last witness at the hearing. He testified that he participated in the surveillance of defendant’s home. Upon defendant’s return home, the police officers, including Officer Herrera, approached defendant. As he moved towards defendant, Officer Herrera surveyed the area to make sure that everything was secure. Officer Herrera saw defendant hand a brown paper bag to Officer DiGiacomo. The officers then placed defendant under arrest.

Defendant spoke Spanish and only a little English. Officer Herrera, a native Spanish speaker, communicated with defendant in Spanish. Officer Herrera gave defendant the Miranda warnings in Spanish. Also in Spanish, defendant indicated that he wanted to get off the street and go inside the house. Once inside the house, defendant spoke to his wife, who gathered the children into the living room. Officer Herrera communicated with defendant’s wife in Spanish and stayed with her and the children while the other officers searched the house. Officer Herrera denied ever threatening defendant, defendant’s wife or their children.

At the conclusion of the hearing, the court found that the information that the officers had was sufficient to sustain the encounter. The court also found that, upon being approached, defendant volunteered he had drugs in his hands and gave those to Officer DiGiacomo. Lastly, the court found that defendant willingly entered the house in an attempt to remove a potentially embarrassing situation from the street and signed the consent-to-search forms for the premises.

Subsequently, defendant filed a second motion to quash arrest and suppress evidence in which he maintained that the Chicago police officers did not have authority to arrest him outside the territorial limits of the City of Chicago. The State rejoined that the police officers effectuated a valid citizen’s arrest. The State maintained that, even though the police officers possessed reasonable suspicion to effectuate a Terry stop prior to defendant’s actual arrest, defendant did not submit to the officers’ authority. Without actual submission to the officers’ authority, “no police action occurred until the facts justified a valid ‘citizen’s arrest.’ ” The State claimed that “[d]espite defendant’s assertions, [the circuit] Court never found any submission by the defendant to police authority prior to his incriminating admissions, nor did [the circuit] Court ever rule that the officer’s initial approach constituted a Terry stop.” In the alternative, the State argued that the circuit court should not suppress the evidence recovered by the police officers because the officers acted in good-faith reliance upon an amendment to the extraterritorial arrest statute, section 7 — 4—8 of the Illinois Municipal Code (65 ILCS 5/7— 4 — 8 (West 1996)), as amended by Public Act 89 — 404, effective August 20, 1995. The amendment was declared unconstitutional several months after defendant’s arrest.

The circuit court denied defendant’s second motion to quash arrest and suppress evidence. The court found that the police officers acted in good faith in effectuating defendant’s arrest. The court explained:

“THE COURT: *** It appears to me that when you describe what happened in this case as you counsel described the police, they were not fortuitously in Schiller Park, Franklin Park. They launched an investigation based on some information that they had, and they went out there and they did this surveillance. But at the time that they did that, everyone agrees that that was within their statutory authority as it existed at the time.

Now, because of this single subject problem that the State is currently going through, it turns out that that statute was invalid. But at the time that the police — if you look into the police minds, for example at the time that the police decided okay, we are going to go out to Schiller Park and do this investigation, and in their mind they were of a belief they were not committing misconduct because it was statutorily authorized. So obviously what I am talking about is good faith exception to the exclusionary rule.”

The court concluded that the purpose of the exclusionary rule would not be served by suppressing the evidence recovered.

The matter proceeded to a stipulated bench trial. At the conclusion of the trial, the circuit court convicted defendant of three counts of possession of a controlled substance with intent to deliver and sentenced him to concurrent terms of 15 years of imprisonment.

Defendant appealed the denial of his second motion to quash arrest and suppress evidence. He maintained that the police officers did not have authority to arrest him in Franklin Park and did not effectuate a valid citizen’s arrest. Defendant also contended that the good-faith exception to the exclusionary rule should not apply because the amendment to the extraterritorial arrest statute, upon which the officers relied, was void ah initio.

The State argued that the police officers effectuated a proper citizen’s arrest. The State claimed that defendant voluntarily gave Officer DiGiacomo the bag containing the cocaine. Once DiGiacomo examined the bag, he had reasonable grounds to believe that defendant was committing a crime, as required by the private citizen’s arrest statute (725 ILCS 5/107 — 3 (West 1996)). The State also argued that the officers did not use the power of their office to gather evidence against defendant that would not have been available to private citizens.

The appellate court considered first whether the actions of the police officers constituted a seizure of defendant. The court noted that if a seizure did not occur, the protections of the fourth amendment would not be invoked. Based on the totality of the circumstances, the court found that “there was a sufficient show of authority by the threatening presence of several officers at the time of the encounter to constitute a seizure.” 321 Ill. App. 3d at 590. The court also found that the seizure could not be justified as a valid citizen’s arrest because Officer DiGiacomo “used the power of his office to collect the evidence necessary to give him reasonable grounds to arrest defendant.” 321 Ill. App. 3d at 593. Lastly, the court refused to apply the good-faith exception to the exclusionary rule. The court noted that the amendment to the extraterritorial arrest statute was found to be unconstitutional. Because a statute which is unconstitutional is void ah initio, the court stated that it would view the facts of the case as though the statute never existed. 321 Ill. App. 3d at 599. The court suppressed the contents of the bag recovered from defendant and defendant’s statement to Officer DiGiacomo that the bag contained drugs. 321 Ill. App. 3d at 599-600. The court remanded the cause to the trial court for a determination as to whether the illegal arrest tainted the subsequent evidence recovered by the police from defendant’s home, garage and storage locker. 321 Ill. App. 3d at 600.

As noted above, this court granted the State’s petition for leave to appeal.

ANALYSIS

In its petition for leave to appeal, the State advanced two arguments for reversal of the appellate court’s judgment. First, the State argued that a private citizen, or a police officer who acts outside his territorial jurisdiction and is therefore considered a private citizen, can conduct an investigatory stop based on a reasonable suspicion of criminal activity. Second, the State argued that the good-faith exception to the exclusionary rule should apply where the legislature enacts a statute in violation of the single subject rule and police officers conduct a seizure pursuant to the statute. We granted the State’s petition for leave to appeal to consider the arguments presented.

In its brief on appeal, the State abandons its claim that the police officers effectuated a valid citizen’s arrest. The State repeats its argument that the good-faith exception to the exclusionary rule is applicable where the police officers rely upon a statute later declared unconstitutional. In addition, the State argues that the exclusionary rule is inapplicable because the police officers did not conduct a constitutionally unreasonable search or seizure, but simply acted outside the territorial limits of the City of Chicago without valid statutory authority to do so.

Noting that the State failed to argue in its petition for leave to appeal that the exclusionary rule does not apply under the circumstances at bar, defendant maintains the State has waived this contention. Pursuant to Rule 315(b) (177 Ill. 2d R. 315(b)), a petition for leave to appeal must contain “a statement of the points relied upon for reversal of the judgment of the Appellate Court” and “a short argument (including appropriate authorities) stating why review by the Supreme Court is warranted and why the decision of the Appellate Court should be reversed or modified.” This court has previously declined to consider points that a party relied upon for reversal in its brief on appeal but failed to include in its petition for leave to appeal. City of Naperville v. Watson, 175 Ill. 2d 399, 406 (1997); People v. Clark, 119 Ill. 2d 1, 7 (1987); People v. Anderson, 112 Ill. 2d 39, 44 (1986).

The State acknowledges that a point not raised in the petition for leave to appeal is waived. However, the State urges this court, in the exercise of its discretion, to consider the argument in question. The State claims this court must first determine whether the exclusionary rule applies before this court can determine whether the good-faith exception to the exclusionary rule applies. The State concludes that because consideration of its argument regarding the exclusionary rule is necessary to consideration of whether the good-faith exception applies, this court should exercise its authority to override application of the rule of waiver.

It is not necessary for us to determine whether the State has waived the argument at issue, as defendant maintains. Nor need we consider whether the alleged waiver must be excused under the circumstances at bar. As discussed below, Illinois law is settled that the exclusionary rule is applicable where the police effectuate an extraterritorial arrest without appropriate statutory authority. Thus, full consideration of the State’s argument is not a necessary first step to a determination of whether the good-faith exception to the exclusionary rule is applicable.

In People v. Lahr, 147 Ill. 2d 379 (1992), this court affirmed the judgments of the lower courts suppressing evidence the police obtained during the course of an extraterritorial arrest. The defendant was driving in unincorporated Kane County, approximately seven-tenths of one mile outside the Village of Sleepy Hollow. At the time, Officer Beyer of the Sleepy Hollow police department was conducting stationary radar surveillance near that location. Based on a radar reading of the defendant’s car, Officer Beyer stopped defendant and issued a traffic citation for speeding. At the time of the arrest, Officer Beyer was in uniform, was driving an official police vehicle, and held himself out to the defendant as a police officer.

Prior to trial, the defendant filed a motion to dismiss the charges against him, predicated on the fact that the defendant was arrested by Officer Beyer of the Sleepy Hollow police department on a road located outside that municipality’s boundaries. The circuit court construed the defendant’s motion as a motion to quash arrest and suppress evidence. The court granted the motion, finding that Officer Beyer lacked official police authority to arrest the defendant and that the arrest could not be legitimized as a private citizen’s arrest. The appellate court affirmed. The court held that the officer used the power of his office to gain access to evidence not available to private citizens. The officer’s use of the radar equipment tainted the gathering of the information and its later use against the defendant. People v. Lahr, 207 Ill. App. 3d 419, 421 (1991). This court granted the State’s petition for leave to appeal.

Initially, this court observed that a police officer acting outside his jurisdiction retains all the rights of an ordinary citizen, including the right to effect a citizen’s arrest. Lahr, 147 Ill. 2d at 382. This court recognized, however, that, outside his jurisdiction, a police officer’s right to arrest is no greater than that of a private citizen. Lahr, 147 Ill. 2d at 382-83. Thus, this court stated that an extraterritorial arrest will not be upheld if in making the arrest the officer uses the powers of his office to obtain evidence not available to private citizens. Lahr, 147 Ill. 2d at 383.

This court next considered whether Officer Beyer used the powers of his office in making the arrest. This court rejected the State’s argument that because the defendant was driving on an open roadway and because the radar equipment was available to the general public, Officer Beyer did not use the powers of his office to obtain evidence not available to a private citizen. In rejecting this argument, the court reasoned that the use of radar guns for monitoring the speed of traffic is limited to police officers. Therefore, despite the fact that this type of radar equipment was not strictly limited to police officers, its use in this case was an assertion of the officer’s police authority. Lahr, 147 Ill. 2d at 383-84. The court concluded that the evidence should be suppressed since Officer Beyer was not investigating any particular individual or suspected crime; there was no evidence except the radar which indicated that Officer Beyer had reasonable grounds to believe a crime had been committed; and Officer Beyer did not effectuate a valid citizen’s arrest. Lahr, 147 Ill. 2d at 386-87.

We note that in Lahr we did not have occasion to consider whether the good-faith exception to the exclusionary rule is applicable where police officers effectuate an extraterritorial arrest pursuant to a statute that is later found to be unconstitutional. Citing People v. Carlson, 185 Ill. 2d 546 (1999), the State argues that the good-faith exception to the exclusionary rule applies because the police officers did not violate defendant’s substantive constitutional rights in effectuating the extraterritorial arrest. While we acknowledge the State’s argument on this issue, we choose to resolve this cause on narrower grounds. In our estimation, the result that we reach is dictated by application of the void ab initio doctrine.

Prior to 1995, section 7 — 4—8 of the Illinois Municipal Code (65 ILCS 5/7 — 4—8 (West 1994)) authorized the police of any municipality in a police district, defined as the territory embraced within the corporate limits of adjoining municipalities within any county of the state, to go into any part of the district to suppress a riot, to preserve the peace, and to protect the lives, rights, and property of citizens. As amended by Public Act 89 — 404, effective August 20, 1995, section 7 — 4—8 of the Code (65 ILCS 5/7 — 4—8 (West 1996)) gave police officers from any municipality in a police district full authority and power as peace officers and authorized the officers to go into any part of the district to exercise that authority and power. Thus, the amended statute purported to give Chicago police officers authority to go into Franklin Park to effectuate defendant’s arrest. In People v. Reedy, 186 Ill. 2d 1, 12 (1999), this court held that Public Act 89— 404 was adopted in violation of the single subject rule. Subsequently, in People v. Ramsey, 192 Ill. 2d 154, 156 (2000), this court stated that Public Act 89 — 404 is void ab initio.

This court has previously explained that a statute which is facially invalid and thus unconstitutional in its entirety is void ab initio. See Ramsey, 192 Ill. 2d at 156; In re G.O., 191 Ill. 2d 37, 43 (2000) (noting that when an act is held unconstitutional in its entirety it is void ab initio); People v. Cervantes, 189 Ill. 2d 80, 94 (1999); People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999); People v. Gersch, 135 Ill. 2d 384 (1990). An unconstitutional law confers no right, imposes no duty and affords no protection. Gersch, 135 Ill. 2d at 399, citing People v. Schraeberg, 347 Ill. 392 (1932). It is as though no such law had ever been passed. Ramsey, 192 Ill. 2d at 156; Gersch, 135 Ill. 2d at 399. The void ab initio doctrine applies equally to legislative acts which are unconstitutional because they violate substantive constitutional guarantees (Gersch, 135 Ill. 2d at 399) and those that are unconstitutional because they are adopted in violation of the single subject clause of our constitution (In re G.O., 191 Ill. 2d at 43). The single subject clause of our constitution regulates the process by which legislation is enacted. Cervantes, 189 Ill. 2d at 83; Reedy, 186 Ill. 2d at 8. In Reedy, 186 Ill. 2d at 13, this court stressed the importance of the single subject clause and the seriousness with which this court regards single subject clause violations. The court reviewed the dual purposes of the single subject clause:

“On one hand, the clause serves to prevent the enactment of legislation that, standing on its own, could not garner the votes necessary for passage. Johnson [v. Edgar], 176 Ill. 2d [499,] 514 [(1997)]; Geja’s Cafe v. Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239, 258 (1992). Indeed, in upholding the mandate of the Illinois Constitution, this court is duty-bound to ensure that the legislature refrains from the ‘ “practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all ***.” ’ Fuehrmeyer [v. City of Chicago], 57 Ill. 2d [193,] 202 [(1974)], quoting People ex rel. Drake v. Mahaney, 13 Mich. 481, 494-95 (1865).

A second and equally important purpose of the single subject clause is to facilitate the enactment of bills through a legislative process that is orderly and informed. See Johnson, 176 Ill. 2d at 514. By limiting each bill to a single subject, each legislator can better understand and more intelligently debate the issues presented by a bill. Johnson, 176 Ill. 2d at 514-15. These dual purposes of the single subject clause, therefore, promote direct confrontation and informed discussion of legislative issues submitted for enactment.” Reedy, 186 Ill. 2d at 13-14.

In light of the serious nature of single subject clause violations, the court concluded these violations are not subject to a harmless error analysis. Reedy, 186 Ill. 2d at 16.

As noted above, in People v. Reedy, 186 Ill. 2d at 12, this court held that Public Act 89 — 404 is unconstitutional because it was adopted in violation of the single subject rule. Further, in People v. Ramsey, 192 Ill. 2d at 156, this court stated that Public Act 89 — 404 is void ab initio. As of the date of defendant’s arrest, the amendment to section 7 — 4—8 had not been declared unconstitutional. Thus, the State urges application of the good-faith exception to the exclusionary rule. However, to apply the good-faith exception would run counter to our single subject clause and void ab initio jurisprudence— specifically, that once a statute is declared facially unconstitutional, it is as if it had never been enacted. In re G.O., 191 Ill. 2d at 43; Gersch, 135 Ill. 2d at 390.

The State argues that this court should give legal effect to the historical fact that Public Act 89 — 404 existed and that the police officers acted pursuant to the amendment to section 7 — 4—8. We decline to do so. In our estimation, to give effect to the historical fact that the amendment existed at the time of defendant’s arrest would effectively resurrect the amendment and provide a grace period (in this case four years between the effective date of the amendment and the date of our opinion in Reedy finding Public Act 89 — 404 unconstitutional) during which our citizens would have been subject to extraterritorial arrests without proper authorization. Our decision not to recognize an exception to the exclusionary rule where a statute is enacted in violation of the single subject clause comports with our jurisprudence that a statute which is facially invalid, and thus unconstitutional in its entirety, is void ab initio.

CONCLUSION

The State has abandoned its position that the police effectuated a valid citizen’s arrest. Further, the State acknowledges that the police effectuated an extraterritorial arrest pursuant to an amendment to section 7 — 4—8 of the Code later held to be unconstitutional. We conclude that the amendment is void ah initio and the police officers effectuated an unlawful arrest. Consequently, we affirm the judgment of the appellate court.

Appellate court judgment affirmed.

1 As inventoried, the brown paper bag contained a large zip-lock freezer bag with a half-brick of compressed white powder wrapped in silver tape.

2 Officer DiGiacomo did not so indicate in his written report.