APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. GEORGE B. WEISS, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 23, 1966.
This appeal, here on leave granted to review the decision of the appellate court in People v. DeFilippis, 54 Ill. App.2d 137, presents the question, answered in the affirmative by the appellate court, of whether defendants charged with the crimes of burglary and theft must establish a possessory interest either in the premises searched or the property seized, in order to secure the exclusion of evidence allegedly obtained in violation of constitutional rights against unreasonable search and seizure. The appellate court reversed the order of the circuit court of Cook County allowing defendants' motions to suppress certain tangible evidence and remanded the cause with directions to deny the motions.
Historical background helpful to a narrowing of the issue presented may begin with the observation that neither the fourth amendment to the Federal constitution, nor section 6 of article II of the Illinois constitution, which prohibit unreasonable searches and seizures, bars the admission of evidence obtained in violation of their terms. Because of this, and to remove the temptation to ignore the constitutional restraints on search and seizure, the Federal courts formulated the rule, to which this court has subscribed, that evidence obtained in violation of the rights protected cannot be admitted against the person whose rights were infringed. (See: Weeks v. United States, 232 U.S. 383, 58 L.ed. 652; People v. Castree, 311 Ill. 392.) The reason for the exclusionary rule, as stated in People v. Perry, 1 Ill.2d 482, 486, is "that if evidence seized in violation of one's constitutional rights were permitted to be introduced in evidence against him, he would, in effect, be compelled to give evidence against himself, and his privilege against self-incrimination guaranteed by the fifth amendment to the United States constitution and section 10 of article II of the Illinois constitution would be violated." And because of its source in the constitutional privilege against self-incrimination, the courts, in applying the rule, held that it could be availed of only by one whose constitutional rights had, in fact, been invaded by the illegal search and seizure. That is to say that unless the illegal search and seizure infringed upon an accused's own personal rights he was held to have no standing to prevent the admission of evidence unlawfully obtained. Goldstein v. United States, 316 U.S. 114, 86 L.ed. 1312; People v. Perry, 1 Ill.2d 482.
Accordingly, the practice developed that for an accused to have "standing" to invoke the protection of the fourth amendment and its counterpart in our own constitution, it was essential that he assert and prove some possessory or proprietary interest either in the property seized or the premises searched. (People v. Kelley, 23 Ill.2d 193; United States v. Pisano, (7th cir.) 193 F.2d 361.) Consistently, where an accused neither claimed ownership nor demanded the return of the property alleged to have been illegally seized, it was held that he could not complain of its seizure or use in evidence against him. People v. Perroni, 14 Ill.2d 581; United States v. Eversole, (7th cir.) 209 F.2d 766.
Despite the beneficent purpose and laudable aim of the exclusionary rule, an accused who objected to the introduction of evidence on the ground that it was obtained by an illegal search and seizure was, in the case of some crimes, faced with a dilemma. On the one hand, in order to establish his standing to raise the objection, he had to show an interest in the property searched or seized; on the other hand, by so doing, he would establish an element of the offense with which he was charged, for example, where the offense involved unlawful possession of the very property the prosecution sought to introduce in evidence. In short, to establish standing, such an accused was forced to put his head into a noose by admitting possession, and in availing himself of the constitutional protection against unreasonable search and seizure was forced to sacrifice his protection against self-incrimination.
Judicial relief from the dilemma came with the landmark decision of Jones v. United States, 362 U.S. 257, 4 L.ed.2d 697, which rendered obsolete much of the prior case law. And while the breadth and result of its holding is an issue in this case, it settled conclusively that, as regards criminal prosecutions for unlawful possession of the property seized, an accused does not lack standing to object to the constitutionality of the search and seizure merely because he fails to allege the requisite proprietary or possessory interest, the ratio decidendi being that in such situation the possession on the basis of which it is sought to convict is sufficient to give him standing to make the objection. Jones v. United States, 362 U.S. at 263-264, 4 L.ed.2d at 704.
The foregoing was the climate of judicial view on the matter of standing when, in the instant case, the defendants, who were charged with burglary and theft, filed motions to suppress evidence alleged to have been illegally obtained at the time of their arrest. As may be seen in greater detail in the opinion of the appellate court, (54 Ill. App.2d 137,) those motions did not allege a proprietary or possessory interest in the articles seized. And although sufficient standing on the part of defendants appears to have been assumed by the trial court, which allowed the motions, the appellate court reversed the order of the trial court on the ground that defendants had failed by their evidence to show a "right to possession" in the articles seized, or "their right to be on the premises" searched. (54 Ill. App.2d at 141.) In arriving at its conclusion, the appellate court was cognizant of the Jones decision, but on the basis of United States v. Konigsberg, (3rd cir., 1964,) 336 F.2d 844, construed Jones as being limited to situations where possession is an element of the offense charged and is in itself sufficient proof of guilt to convict. Conversely, the appellate court construed Jones as having no application where possession is not an element of the crime charged, (as in burglary or theft,) and where proof of possession merely raises a presumption of guilt.
There is, of course, no question but that the People in the present case intended to rely upon the defendants' possession of the property as evidence of the defendants' commission of the alleged offenses. According to the appellate court's reasoning a defendant's standing to make a motion to suppress evidence seized from him is determined by the nature of the charge which the prosecutor brings against the defendant. Although the search and seizure in the present case was made by Federal agents, law enforcement officials decided to prosecute on State rather than Federal charges, presumably mindful of the distinctions noted in the Konigsberg case. We do not believe that the defendants' constitutional rights are governed by the charges brought against them, particularly when the prosecution has a choice of charges. In Jones the defendant was not charged with the unlawful possession of the narcotic drugs seized in the search. Neither statute under which he was convicted prohibited the possession of narcotic drugs. Therefore, neither in Jones nor in this case were the defendants charged with the possession of the articles seized and sought to have been suppressed as evidence. Also inherent in the appellate court's holding is the proposition that the nature of the articles seized as a result of the search will determine the constitutional validity of the search. In our opinion the fruits of the search cannot determine its constitutional validity and should not govern a defendant's standing to make a motion to suppress evidence.
Aside from the Jones case it would appear that the defendants had standing to make the motion to suppress under the authority of People v. Colonna, 140 Cal.App.2d 705, 295 P.2d 490, where the court stated:
"Thus, the rule of the lower federal courts is based on the theory that the evidence is excluded to provide a remedy for a wrong done to the defendant, * * *. In adopting the exclusionary rule, however, this court recognized that it could not be justified on that theory, and based its decision on the ground that `other remedies have completely failed to secure compliance with the constitutional provisions on the part of the police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activity of law enforcing officers.'
"This result occurs whenever the government is allowed to profit by its own wrong by basing a conviction on illegally obtained evidence, and if law enforcement officers are allowed to evade the exclusionary rule by obtaining evidence in violation of the rights of third parties, its deterrent effect is to that extent nullified. Moreover, such a remedy virtually invites law enforcement officers to violate the rights of third parties and to trade the escape of a criminal whose rights are violated for the conviction of others by the use of the evidence illegally obtained against them.
"The United States Supreme Court has correctly recognized that the purpose of the exclusionary rule is not to provide redress or punishment for a past wrong, but to deter lawless enforcement of the law. The government cannot violate the fourth amendment and use the fruits of such unlawful conduct to secure a conviction, * * *. These methods are outlawed, and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men * * *. His right to object to the use of the evidence must rest not on a violation of his own constitutional rights, but on the ground that the government must not be allowed to profit by its own wrong and thus encourage the lawless enforcement of the law.
"Since all the reasons that compel us to adopt the exclusionary rule are applicable whenever evidence is obtained in violation of constitutional guaranties, such evidence is inadmissible whether or not it was obtained in ...