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People v. Mccarty





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD J. FITZGERALD, Judge, presiding.


This case involves the issue of whether a person can refuse to answer questions before the grand jury when those questions are derived from evidence of a previously determined illegal search of that person.

On October 27, 1979, respondent was arrested and charged with possession of a controlled substance. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402.) On November 27, 1979, the trial court granted respondent's motion to suppress the evidence illegally seized pursuant to that arrest, and granted the State's motion to have the cause stricken. Respondent was then subpoenaed to appear before the grand jury. He appeared, invoked his fifth amendment privilege and received immunity from prosecution under article 106 of the Illinois Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1977, ch. 38, par. 106-1 et seq.) Respondent persisted in his refusal to testify and was held in contempt of court. From this order of contempt, he now appeals.

The following issues are raised for our review: (1) that he had a right under the United States and Illinois constitutions (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6) to refuse to answer grand jury questions derived from his illegal search, and (2) that his same constitutional rights were violated by his compelled appearance before the grand jury where the service of the subpoena resulted from the illegal search.

Respondent's first contention is comprised of a two-prong constitutional attack. The former is based upon his rights to be free from unlawful searches and seizure under the fourth amendment to the Federal constitution (U.S. Const., amend. IV) along with any derivative fruits of that activity; the latter is premised upon his right to be protected against invasion of privacy guaranteed under the Illinois Constitution. (Ill. Const. 1970, art. I, § 6.) We first turn to the Federal constitutional challenge.

Briefly, respondent contends that the questions propounded by the grand jury are tainted because they directly result from his illegal search. As such, the exclusionary rule allegedly bars any inquiries based upon evidence stemming from that search.

We find that respondent's contention in this regard is answered by the holding in United States v. Calandra (1974), 414 U.S. 338, 38 L.Ed.2d 561, 94 S.Ct. 613. In Calandra, the United States Supreme Court held that a witness summoned to appear and testify before a grand jury may not refuse to answer questions on the ground that they are based upon evidence obtained from an unlawful search and seizure. Respondent, recognizing the import of the Calandra decision, attempts to distinguish that case from the present situation. In Calandra, defendant moved for suppression of the evidence after the grand jury proceedings had commenced. Accordingly, the Calandra decision rested in part upon the fear of protracted interruptions of grand jury proceedings that would result from holding suppression hearings regarding evidence alleged to be unconstitutionally seized. This fear, respondent argues, cannot manifest itself in the present case because the suppression hearing was completed prior to initiation of the grand jury proceeding. Therefore, respondent argues that the Calandra holding is inapposite to the case at bar.

While this distinction has some merit, we note that the court in Calandra did not rely solely on this ground in finding the exclusionary rule inapplicable to grand jury proceedings. Throughout the opinion, the court emphasized that the minimal deterrent effect on the police by excluding any evidence of an illegal search was outweighed by the need for the effective and expeditious discharge of the grand jury's investigative duties. The court stated:

"In the context of a grand jury proceeding, we believe that the damage to that institution from the unprecedented extension of the exclusionary rule urged by respondent outweighs the benefit of any incremental deterrent effect. Our conclusion necessarily controls both the evidence seized during the course of an unlawful search and seizure and any question or evidence derived therefrom (the fruits of the unlawful search.)" Calandra, 414 U.S. 338, 354, 38 L.Ed.2d 561, 575, 94 S.Ct. 613, 623.

Permitting witnesses to invoke the exclusionary rule before the grand jury would hinder its fundamental objective of determining whether a crime has been committed and whether criminal proceedings should be instituted against anyone. Therefore, we reject respondent's assertion that his rights under the fourth amendment of the United States Constitution were violated when the trial court found his refusal to answer the grand jury's questions contemptuous.

The second prong of respondent's first contention is that his right to be free from invasion of privacy under the Illinois Constitution of 1970 precludes his compelled testimony before the grand jury on matters based upon his illegal search. The privacy provision of the Illinois Constitution provides in pertinent part:

"The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." (Emphasis added.) Ill. Const. 1970, art. I, § 6.

According to respondent, his right to privacy under the State constitution is broader in scope than his rights under the fourth amendment of the Federal constitution, and thus places him outside of the holding in the Calandra case. Respondent's "expansion of rights" theory, if correct, is significant because the United States Supreme Court has recognized that the right to privacy may be invoked to refuse grand jury questioning when Congress has provided for special safeguards against situations in which those rights are violated. (Gelbard v. United States (1972), 408 U.S. 41, 33 L.Ed.2d 179, 92 S.Ct. 2357.) In Gelbard, the court, relying specifically on title III of the Omnibus Crime Control Act (18 U.S.C. §§ 2515-2520 (1976)), found a congressional grant of privacy which mandated the exclusion of unlawfully gained electronic surveillance evidence at grand jury proceedings. There, the court warned of the two-fold invasion of privacy that would occur if such evidence were admissible.

"In sum, Congress simply cannot be understood to have sanctioned orders to produce evidence excluded from grand jury proceedings by § 2515. Contrary to the Government's assertion that the invasion of privacy is over and done with, to compel the testimony of these witnesses compounds the statutorily proscribed invasion of their privacy by adding to the injury of the interception ...

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