APPEAL from the Circuit Court of Champaign County; the Hon.
HARRY E. CLEM, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 27, 1981.
This case concerns a proceeding brought on the relation of the State's Attorney of Champaign County against defendant, Rex Boston, pursuant to the provisions of "An Act regarding places used for purposes of lewdness, assignation, or prostitution, to declare the same to be public nuisances, and to provide for the more effectual suppression thereof" (Ill. Rev. Stat. 1977, ch. 100 1/2, par. 1 et seq.). Defendant appeals from an order of the circuit court of Champaign County entered on April 3, 1980, enjoining him from (1) maintaining a nuisance, specifically, a place of prostitution at 612 North Walnut St., Champaign, where a place of business known as "The Spot" was located, (2) using the above property for any purpose for one year, and (3) maintaining or permitting prostitution on any premises within his control in the State of Illinois. He asserts that the court erred in (1) denying his in limine motion requesting suppression of certain evidence, (2) failing to appoint a special prosecutor, (3) ordering an injunction when legal remedies would have been adequate, and (4) enjoining too broad a scope of defendant's activities.
The heart of the case concerns the ruling denying defendant's motion in limine. It asked for an order prohibiting plaintiff, his agents, and his witnesses from testifying or referring to any illegal activities engaged in by plaintiff, his agents and his recruits. A showing was made at the hearing that in the course of an investigation, the State's Attorney or members of the police department of the City of Champaign had recruited three males to patronize prostitutes on the premises of "The Spot." Two recruits subsequently engaged in sexual intercourse with female employees of "The Spot" on three or four occasions and with one encounter by one employee including the performance upon him of an act of fellatio by the female. The third recruit employed a female employee to perform a masturbatory massage and fellatio upon him on one occasion. The money used to obtain the service of these females was furnished by the aforesaid law enforcement agencies.
Defendant maintains that the conduct of the State's Attorney in recruiting and directing the agents actually to engage in the described illicit acts with his employees was so outrageous as to constitute a violation of his fundamental right to due process. This argument appears to be novel in this State in two respects: First, we have not found any Illinois cases recognizing a valid defense wherein due process is violated by outrageous governmental conduct not violative of any other specific constitutionally guaranteed right; second, in cases from other jurisdictions where the defense was explicitly or implicitly recognized, the remedy indicated was not the exclusion of evidence so obtained but the barring of the action.
Defendant acknowledges that the defense of entrapment is not available to him in the present case and asserts that he is not urging the defense of entrapment. Rather, defendant argues that in Hampton v. United States (1976), 425 U.S. 484, 48 L.Ed.2d 113, 96 S.Ct. 1646, although the majority of justices rejected the "objective (governmental conduct) test" of entrapment while reaffirming the "subjective (predisposition) test" as the only valid test of entrapment, five justices failed to foreclose the possibility of a fundamental fairness defense. Three years earlier a Supreme Court majority opinion first acknowledged the potential validity of a fundamental fairness defense.
In United States v. Russell (1973), 411 U.S. 423, 36 L.Ed.2d 366, 93 S.Ct. 1637, the court, while reaffirming the principle that the entrapment defense "focus[es] on the intent or predisposition of the defendant to commit the crime" (411 U.S. 423, 429, 36 L.Ed.2d 366, 371, 93 S.Ct. 1637, 1641), distinguished this non-constitutional defense of entrapment from the constitutional due process defense theory based on outrageous governmental conduct. (411 U.S. 423, 427-28, 432-33, 36 L.Ed.2d 366, 371, 374, 93 S.Ct. 1637, 1640-41, 1643.) The court concluded in Russell by acknowledging the potential validity of the due process theory, stating:
"While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165 (1952), the instant case is distinctly not of that breed * * *. The law enforcement conduct here stops far short of violating that `fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." 411 U.S. 423, 431-32, 36 L.Ed.2d 366, 373, 93 S.Ct. 1637, 1643.
In Hampton, the defendant relied on the quoted language from Russell, acknowledging his case did not present a basis for the entrapment defense. The plurality opinion rejected defendant's argument saying:
"The limitations of the Due Process Clause of the Fifth Amendment comes into play only when the Government activity in question violates some protected right of the defendant." (425 U.S. 484, 490, 48 L.Ed.2d 113, 119, 96 S.Ct. 1646, 1650.)
Two justices, however, concurred in the result but were "unwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles." (425 U.S. 484, 493, 48 L.Ed.2d 113, 121, 96 S.Ct. 1646, 1651-52.) Justice Powell's concurrence stated:
"[T]he cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it would bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities and dealing effectively with an expanding narcotics traffic, * * *. Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity." 425 U.S. 484, 495-96 n. 7, 48 L.Ed.2d 113, 122 n. 7, 96 S.Ct. 1646, 1653 n. 7.
The three dissenting justices in Hampton felt that the defense of entrapment itself should encompass improper use of governmental power notwithstanding predisposition. But the dissent also expressed the view that Russell did not foreclose a bar to conviction based on due process principles "where the conduct of law enforcement authorities is sufficiently offensive * * *." 425 U.S. 484, 497, 48 L.Ed.2d 113, 123, 96 S.Ct. 1646, 1653-54.
The due process defense of outrageous police conduct was elevated from theory to reality in United States v. Twigg (3d Cir. 1978), 588 F.2d 373. That court reversed convictions of two defendants because "the nature and extent of police involvement * * * was so overreaching as to bar ...