Before his streaming eyes.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
545 N.E.2d 1332, 190 Ill. App. 3d 416, 137 Ill. Dec. 317 1989.IL.1040
Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. COCCIA, J., concurs. JUSTICE PINCHAM, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendant, Bruce Jones, was charged by information with possession of a controlled substance (more than 15 grams of a substance containing cocaine) with intent to deliver in violation of section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(b)(2)). He filed a motion to suppress evidence. Following a hearing, the motion was denied, and defendant was found guilty after a stipulated bench trial in the circuit court of Cook County. He was sentenced to serve a prison term of six years.
On appeal, he contends that the trial court erred in denying the suppression of evidence. The issues on appeal are: (1) whether the initial encounter between defendant and the law officers was consensual or a Terry -type detention; (2) if the encounter was a Terry -type detention, whether sufficient facts justified the detention; and (3) whether the subsequent search of defendant's shoulder bag violated his fourth amendment rights.
On March 26, 1987, defendant took a one-way flight from Midway Airport in Chicago to Fort Lauderdale, Florida. On March 29, 1987, he purchased a one-way Amtrak train ticket from Fort Lauderdale to Chicago via Washington, D.C. On March 30, 1987, Officer Christine Kolman, a 13-year veteran of the Chicago police department, learned from the Amtrak police that defendant would arrive in Chicago on Amtrak train No. 29. She also learned that day or the following day that defendant was traveling from Fort Lauderdale, Florida, via Washington, D.C., and that he had made several similar trips in the past.
About 9:10 a.m. on March 31, 1987, defendant and a companion, Edward Borner, arrived at Union Station, 210 South Canal Street in Chicago, on Amtrak train No. 29. At that time, Kolman and other plainclothes narcotics agents were conducting a surveillance narcotics investigation. During the course of her surveillance, Kolman observed defendant and Borner exit the train. Defendant walked without hesitation through the waiting area and the rest of the train station, but he repeatedly turned around, looked behind him, and made eye contact several times with Kolman and one of the other officers. Defendant again made eye contact with Kolman once or twice as he rode up the escalator to the mezzanine level. Defendant stepped off the escalator on the mezzanine level and had walked about 5 to 10 feet away from the escalator when an Amtrak police officer approached him. This was a well-illuminated, crowded public area near the exit doors. Kolman approached defendant, identified herself as a Chicago police officer, and displayed her identification badge. The Amtrak police officer and a special narcotics agent were with Kolman and defendant, but the Amtrak police officer walked away when Kolman and the agent identified themselves. Kolman stood alongside defendant. Neither she nor the other officers touched or grabbed him, nor did they display their weapons. No one was standing in front of defendant; rather, the exit doors were in front of defendant. Defendant was not pinned against any wall or counter.
After Kolman identified herself, she asked defendant and Borner whether they would agree to speak to the officers. When they stated that they would, Kolman asked them to produce their train tickets and driver's licenses or other identification. They then produced their driver's licenses and travel itineraries. Defendant's travel itinerary reflected that he flew to Fort Lauderdale from Midway Airport in Chicago on March 26, and that he left Fort Lauderdale on March 29, on a train to Chicago via Washington, D.C. After Kolman read the documents, she returned them to defendant and Borner. She then explained that the officers were conducting a narcotics investigation, and she asked them how long they had been in Florida and whether the trip was for business or pleasure. Defendant stated that he had been on vacation in Florida since the previous Thursday and he asked Kolman what this was all about. Kolman again explained that the officers were conducting a narcotics investigation and she asked defendant and Borner whether they had illegal narcotics in their possession. Both defendant and Borner answered in the negative. Kolman then told them in a conversational tone that they were not under arrest and that they were free to leave at any time. She asked them whether they would consent to a search of their bags and she told them that they had a right to refuse. Borner stated, "Yes, go ahead," but defendant did not answer and began to tremble. Kolman noticed that defendant was trembling and that he was very nervous and asked again whether he would consent to a search of his bags.
At this point, defendant declined to consent to a search. Kolman stated again that they were free to leave and that they were not under arrest. She explained further that she was going to detain defendant's bag temporarily in order to subject it to a canine sniff test. Defendant then stated, "You can search my bag, I've got narcotics in it but I'm carrying it for somebody else." The officers were neither touching, grabbing, threatening nor blocking defendant, nor had they drawn their weapons. Defendant did not express any desire to terminate the conversation or to leave the area. Kolman proceeded to search defendant's bag, found the contraband inside, and placed defendant under arrest. She did not arrest Borner because no contraband was found in his bags. It is undisputed that the officers had no warrant for the search or the arrest.
In denying defendant's motion to suppress, the trial court noted that the initial encounter was consensual, that the officers had a right to detain defendant's bag, and that the officers had probable cause for the search and the arrest following defendant's statement that there were narcotics in the bag.
A trial court's finding on a motion to suppress evidence will not be disturbed unless it is manifestly erroneous. (People v. Long (1983), 99 Ill. 2d 219; People v. Reynolds (1983), 94 Ill. 2d 160.) However, under the statute, the burden is upon defendant to prove his allegations at a suppression hearing:
"The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The Judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant." (Ill. Rev. Stat. 1987, ch. 38, par. 114-12(b).)
In our view, defendant failed to meet his statutory burden of proof.
The fourth amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (U.S. Const., amend. IV.) In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Supreme Court authorized a limited, investigative detention short of a full arrest and short of probable cause. However, not all encounters between citizens and law enforcement officers implicate the fourth amendment. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. Long, 99 Ill. 2d at 229.) A seizure occurs only when a law officer restrains a citizen's liberty by physical force or show of authority. (People v. Long, 99 Ill. 2d at 229.) Consensual questioning does not implicate the fourth amendment. (See Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324; Florida v. Rodriguez (1984), 469 U.S. 1, 83 L. Ed. 2d 164, 105 S. Ct. 308.) According to four members of the United States Supreme Court, the fourth amendment is not violated when a law officer merely approaches a person in a public place, asks him whether he is willing to answer some questions, asks him questions if the person is willing to listen, or offers in evidence the voluntary answers to the questions. (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324 (opinion of White, J., joined by Marshall, Powell and Stevens, JJ.); also see People v. Long, 99 Ill. 2d 219; People v. Alcantara (1989), 179 Ill. App. 3d 105.) The mere fact that the officer identifies himself as an officer, without more, does not convert the encounter into a seizure requiring some level of objective justification. (United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.) Therefore, the threshold question in a case of this type is whether a seizure has occurred.
In Illinois, the test for determining whether a seizure has occurred is an objective one, namely, whether a reasonable person would have believed that he was free to leave under the circumstances. (See People v. Miller (1984), 124 Ill. App. 3d 620; People v. Brett (1984), 122 Ill. App. 3d 191.) This comports with the test set forth in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. There, Justice Stewart, in a portion of the opinion joined by Justice Rehnquist, stated that a seizure has occurred implicating the fourth amendment when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; see also Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.) The Mendenhall Court noted the following examples of circumstances that might indicate a seizure, even where there was no attempt to leave: (1) the "threatening presence of several officers"; (2) the "display of a weapon by an officer"; (3) "some physical touching of the person or the citizen"; or (4) the "use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.
By the same token, the test for determining whether an encounter is consensual also involves an analysis of the totality of the circumstances and is a matter which the prosecution has the burden of proving. (Mendenhall, 446 U.S. at 557, 64 L. Ed. 2d at 511, 100 S. Ct. at 1879.) However, the prosecution need not prove that defendant knew he could withhold his consent. Florida v. Rodriguez (1984), 469 U.S. 1, 83 L. Ed. 2d 165, 105 S. Ct. 308.
If a seizure rather than a consensual encounter has occurred, only then should attention be focused on whether the seizure was a full arrest requiring probable cause, or instead a limited investigative stop, commonly called a Terry -type stop. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Although a Terry -type stop does not require probable cause, it does require some adequate objective justification for the intrusion short of probable cause. (Reid v. Georgia (1980), 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752.) A hunch does not qualify as justification for a Terry -type stop. (Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; see also People v. Long, 99 Ill. 2d at 228.) Instead, justification for a Terry -type stop consists of "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) Another way of stating the rule is that a Terry -type stop "must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity." (Reid, 438 U.S. at 440, 65 L. Ed. 2d at 894, 100 S. Ct. at 2754.) The facts or suspicion must be tested at the moment of the seizure or the search. (Terry, 396 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) In evaluating the validity of a stop, the court should consider the totality of the circumstances. (United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581.) In Illinois, the Terry rules have been codified in sections 107-14 and 108-1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 107-14, 108-1.01). Section 107-14 provides, in relevant part:
"A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense . . .." Ill. Rev. Stat. 1987, ch. 38, par. 107-14.
According to the above principles, the threshold issue in the instant case is whether the officers' initial encounter with defendant constituted a seizure. If it was not a seizure, then it is unnecessary to determine whether it was justified by sufficient, articulable facts or by a reasonable suspicion. In our view, the circumstances of defendant's initial encounter with the officers indicate that the encounter was consensual. He agreed to speak to the officers. They neither cornered him nor otherwise prevented his departure through physical contact, language, or tone of voice, nor did they threaten him physically or verbally or display any weapons. They did not block his way and he could have exited the train station through the doors directly in front of him. They did not retain his driver's license or his travel itinerary. To the contrary, Kolman immediately returned defendant's driver's license and travel itinerary. If the retention of his driver's license would have tended to negate his freedom to leave (see Royer, 460 U.S. at 501, 75 L. Ed. 2d at 239, 103 S. Ct. at 1326; People v. Hardy (1986), 142 Ill. App. 3d 108), then immediate return of the driver's license to defendant should have had the opposite effect -- it should have communicated to defendant that the officers were satisfied with his identification (People v. Brett (1984), 122 Ill. App. 3d 191), and that defendant was free to leave if he chose to do so. (See People v. Claver (1987), 162 Ill. App. 3d 62.) Indeed, Kolman specifically informed defendant that he was free to leave at any time. Furthermore, she specifically informed him that he did not have to consent to a search. This statement is also consistent with the Conclusion that defendant was free to leave. People v. Miller (1984), 124 Ill. App. 3d 620.
We believe that a reasonable person in defendant's position would have considered that he was free to leave. If defendant believed that he was not free to leave, then his belief was unreasonable. (People v. Brett, 122 Ill. App. 3d at 196.) In our opinion, the State met its burden under United States v. Mendenhall of proving that defendant's consent was freely and voluntarily given. Although the State did not have to show that defendant subjectively knew he could refuse to consent (Florida v. Rodriguez (1984), 469 U.S. 1, 83 L. Ed. 2d 165, 105 S. Ct. 308), the record discloses that defendant was specifically advised that he was free to leave and that he could refuse to consent. It was only after defendant started to tremble and did not respond to Kolman's statement that defendant was told his bag would be detained. We conclude that defendant failed to meet his statutory burden of proving the allegations in his motion to suppress and that he was not seized within the meaning of the fourth amendment. Ill. Rev. Stat. 1987, ch. 38, par. 114-12(b).
To summarize, the manifest weight of the evidence discloses that the encounter between defendant and the narcotics agents was consensual rather than a seizure within the meaning of the fourth amendment. Therefore, the trial court's denial of defendant's motion to suppress was not against the manifest weight of the evidence, and the encounter did not taint the search of defendant's shoulder bag and did not warrant suppression of the cocaine found therein or of defendant's statement.
Furthermore, the search of defendant's shoulder bag did not violate his protected fourth amendment interest in retaining possession of his personal effects and property. United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637, allows this interest to be overcome and authorizes a limited intrusion if the law officers have reason to suspect that the luggage contains narcotics. Under United States v. Place, probable cause is not a prerequisite for the seizure of luggage; instead, luggage can be seized based upon a reasonable suspicion that it contains narcotics. (462 U.S. at 702, 77 L. Ed. 2d at 117, 103 S. Ct. at 2642.) In the instant case, the manifest weight of the evidence indicates that Kolman reasonably suspected that defendant's shoulder bag contained narcotics. Moreover, Kolman had probable cause to search the bag and to arrest defendant when defendant volunteered that the bag contained narcotics. We hold that the search of the shoulder bag was neither tainted by the preceding events nor independently amounted to a separate violation of the fourth amendment.
Our Conclusions are consistent with the following cases cited in defendant's brief. For example, we recently noted that People v. DeLisle (1982), 104 Ill. App. 3d 297, follows an outdated analysis and essentially has been overruled. (See People v. Forrest (1988), 172 Ill. App. 3d 385.) In People v. Kiser (1983), 113 Ill. App. 3d 501, the agents physically blocked defendant's exit onto an escalator. Considering the reasonable and articulable factor used by the Court in Reid v. Georgia (1980), 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752, to determine whether an investigatory stop is justified, we must conclude that the encounter in the instant case was consensual, and not an investigatory stop.
JUSTICE PINCHAM, Dissenting:
I Dissent. The police tactics in the case at bar and their approval by the trial court and this court promote and advance the despicable oppressions known to exist in totalitarian police states in which cherished civil liberties are enjoyed by only the privileged and powerful few. I "CAN IT HAPPEN HERE?"
On Thursday, June 29, 1989, at page A4 the following (excerpted) article appeared in the New York Times:
"IN NIGERIA, TO ROT IN JAIL IS A HAZARD OF THE INNOCENT:
LAGOS, Nigeria -- a 26-year-old man with no criminal record is picked up by the police while driving near his home. He is not allowed to contact anyone, even his wife, whom he married the day before. He spends the next 8 years in jail, without trial.
That was the experience of Joseph Odogu, who was accused of armed robbery in the summer of 1980. Inexplicably, month after month, his trial date was postponed. And because he was arrested under a special decree enacted by Nigeria's military Government, he could not be free on bail.
'It was a horrid, horrendous, dehumanizing situation,' said Olisa Agbakoba, Mr. Odogu's lawyer and chairman of the Lagos-based Civil Liberties Organization. 'And while he wasted in jail, his car was stolen, his shop ransacked, his landlord chucked him out, his mother died and his wife deserted him.'
What Mr. Agbakoba soon discovered after taking on Mr. Odogu's case last year was that his client had fallen through the cracks of Nigeria's often harsh and byzantine legal system. Prosecutors, in fact, decided within months of Mr. Odogu's arrest that he was the wrong man. But no one bothered to tell him, his jailers or the courts.
Mr. Odogu's case may seem especially cruel, but Mr. Agbakoba says it is only one of hundreds of such accounts of desperation in various police cells and detention centers across Nigeria.
Since it was formed two years ago, the Civil Liberties Organization has documented a continuous stream of cases illustrating shortcomings in Nigeria's judicial and law enforcement systems.
Sometimes, as in Mr. Odogu's case, the problems are caused by sloppy police work, albeit on a grand scale.
Increasingly, however, the group has uncovered alarming evidence of widespread human rights violations. In the first six months of 1988, for example, the group disclosed that 54 detainees in a single federal prison here died while awaiting trial; that the Government does not dispute.
In another instance, the group recently brought a class-action lawsuit challenging the incarceration of 70 prisoners who had been detained without trial for periods of 3 to 10 years. So far, 20 have been released." N.Y. Times, June 29, 1989, at A4.
No rational person is so bold as to suggest that even remotely similar situations presently occur in our State or in our nation. But is any rational person so bold as to suggest that "It can't happen here"? History is replete with fallen democracies and free societies which believed and smugly preached, "It can't happen here." To paraphrase George Santayana, if we fail to remember our mistakes we are condemned to repeat them.1
History teaches, if only we will learn it, that no free society was ever totalitarianized from within, suddenly, and without warning. The true danger to constitutional freedom is the gradual, but unrelenting erosion of constitutional guarantees, perpetuated in the name of self-serving euphemistic phrases such as "LAW AND ORDER." History also fervently teaches that the danger of an encroaching police state is most perilous when the citizens are most complacent. I wholeheartedly agree with that great patriot and libertarian, Benjamin Franklin, who eloquently prophesied that those who would willingly forfeit a little of their freedom for a little more security will end up with neither.2
I also endorse Adlai Stevenson's sage advice: "Carelessness about our security is dangerous; carelessness about our freedom is also dangerous." The plain and simple truth is we have become and are becoming increasingly careless about our precious freedoms, and the majority opinion is but another example of it. Boyd v. United States (1886), 116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524, is now older than a full century. But its teachings are, if anything, more vibrantly relevant today than when they were written:
"llegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." (Emphasis added.) 116 U.S. at 635, 29 L. Ed. at 752, 6 S. Ct. at 535.
All this comes down to a simple question, but one well worth contemplating: If the courts refuse to and will not protect and enforce the constitutional guarantees of our citizens, then who will? If on one day a court permits the search of a passenger because he is first off a plane, bus or train, or is "nervous," is it not "logical" or "consistent," or, indeed " stare decisis " for a court on the next day to sanction the search of a passenger because he disembarked last or "calmly"? This is not at all farfetched, as Justice Marshall observed in his Dissent in United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581. There, Justice Marshall made note of the so-called DEA "profile" and its multiple, "chameleon-like way of adapting to any particular set of circumstances." He then listed the following authorities as illustrative of those judicially approved flexible adjustments:
"Compare, e.g., United States v. Moore, 675 F.2d 802, 803 (suspect was first to deplane), with United States v. Mendenhall, 446 U.S. 544, 564 (last to deplane), with United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (deplaned from middle); United States v. Sullivan, 625 F.2d 9, 12 (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (non-stop flight), with United States v. Sokolow, 808 F.2d 1366 (changed planes); Craemer (supra) at 595 (no luggage), with United States v. Sanford, 658 F.2d 342, 343 (gym bag), with Sullivan (supra) at 12 (new suitcases); United States v. Smith, 574 F.2d 882 (traveling alone), with United States v. Fry, 622 F.2d 1218, 1219 (traveling with companion); United States v. Andrews, 600 F.2d 563, 566 (acted nervously), with United States v. Himmelwright, 551 F.2d 991, 992 (acted too calmly)." 490 U.S. at 13-14, 104 L. Ed. 2d at 14-15, 109 S. Ct. at 1588-89 (Marshall, J., Dissenting).
If today the court relaxes the probable cause standards for disembarking passengers from public vehicular transportation, shall not the court tomorrow do the same on identical rationale to embarking ones? If the Constitution permits indiscriminate searches of persons traveling on interstate planes and trains why not buses,3 and autos, motorcycles and even bicycles or roller skates? Why, logically, limit such searches to interstate travelers? Surely if the State and Federal constitutional prohibitions against unreasonable search and seizure permit seizures of interstate travelers and their "effects" on such flimsy and perhaps fabricated grounds as "eye contact," or the lack of it, or "the order of disembarkation," or the degree of "nervousness" or "calmness," or the amount of luggage or type of it or lack of it, they then also permit identical searches and seizures of intracity travelers on buses, subways, taxis and even in private conveyances. Inevitably Americans will become completely insecure on their public streets from police state tactics and they will be secure from the police only while in their own homes, and then . . . Surely, this is to burn down the house to roast the pig.
Even so, we might debate whether sacred constitutional guarantees should or must yield in order to stamp out what is unquestionably one of the worst man-made plagues ever inflicted upon any people, that of nefarious narcotic usage and trafficking. I say we might debate this matter if history, or even some unreliable statistics, demonstrated that as the rights of personal security and privacy have lessened, the problems of illegal drugs have also somewhat lessened in any related, or even unrelated, proportion. Unfortunately, the proportion simply has been inverse. This is no accident.
For the nearly 40 years that I have been intimately and inextricably involved in the Federal and States' criminal Justice systems throughout America, I have listened to and observed firsthand law enforcement personnel and "strict constructionists" advocate one "remedy" after another as being "just the needed tool," necessary to enable the police to rid society of the scourge of drugs. "Unhandcuff the police," so they can do what needs to be done, we have been urged over and over again. I characterize these requests as a police "if only" or "wish list" philosophy. "If only," we have been repeatedly told, the police had this or that wish granted they could solve the crime and drug problems. For instance, "if only" the police could utilize hearsay warrants,4 or hearsay arrests,5 or "stop and frisk,"6 or "good faith" searches,7 or "inevitable discovery" seizures8 or "totality of circumstances" search warrants,9 or search warrants and warrantless arrests based on secret informers.10 We were first told that warrantless "consensual" overhears were vital to the police,11 then pen registers,12 and finally wiretapping and eavesdropping devices.13 The police have pressed for warrantless aerial surveillance of our citizens while in their homes and businesses,14 as well as the right to conduct warrantless searches of their cars,15 and personal packages, bags, luggage,16 and even their trash.17 Law enforcement has successfully proffered evidence procured as the result of physical trespass on private property,18 and even as the result of the commission of the criminal offense of burglary by the law enforcement agents themselves.19 On some occasions the police have sought approval for entries into private premises before obtaining a search warrant,20 and sometimes without even bothering to obtain a search warrant at all.21 Even alimentary canals are not protected from the prying eyes of Big Brother.22
When I consider the insatiable and voracious appetite of the law enforcement community for devouring precious constitutional freedoms and the increasing yielding to that hunger, I recall almost immediately the ancient nursery rhyme of the Walrus and the Oysters:
"'O Oysters, come and walk with us!'
'A pleasant walk, a pleasant talk,
'But wait a bit,' the Oyster cried,
'Before we have our chat;
For some of us are out of breath,
'I weep for you,' the Walrus said:
With sobs and tears he sorted out
Those of the largest size,
Holding his pocket-handkerchief
But answer came there none --
And this was scarcely odd;
There is no question, and my 40 years of experience have demonstrated to me, that many of these invasions and intrusions into personal privacy and property are accompanied by violence and threats of violence to the citizen, although, of course, rarely if ever in those cases sub judice. And despite all this and much much more,23 the law enforcement community and their judicial and other apologists and advocates often wonder or pretend to wonder aloud why it is that ever enlarging segments of society have declining respect for the police. Justice Jackson, a former Attorney General of the United States, gave us the answer many years ago when he wrote:
"Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court." (Emphasis added.) Brinegar v. United States (1949), 338 U.S. 160, 180-81, 93 L. Ed. 2d 1879, 1893, 69 S. Ct. 1302, 1313 (Jackson, J., Dissenting).
It is beyond dispute that as the police "wish list" has grown and has been granted, and as each provision of our sacred Bill of Rights has been pressed into an unrecognizable depletion, the monstrous drug plague has become more -- not less -- acute. And I think it is not serendipitous; not only predictable but inevitable that as the constitutional guarantees of the American people have been diminished, the crime problem has expanded and accelerated. After all, at bottom, crime and particularly drug trafficking evince a disrespect for the law and the worth of the individual. There is no gainsaying that many people simply will not comply with a law unless they respect those who enforce it. Sagacious Justice Brandeis in Olmstead v. United States (1928), 277 U.S. 438, 72 L. Ed. 2d 944, 48 S. Ct. 564, where, speaking of wiretapping, wisely said:
"Will this Court by sustaining the judgment below sanction such conduct on the part of the Executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. The maxim of unclean hands comes from courts of equity. But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the Government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling.
The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw. The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction to which he seeks legal redress. Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of Justice; in order to preserve the judicial process from contamination. The rule is one, not of action, but of inaction. It is sometimes spoken of as a rule of substantive law. But it extends to matters of procedure as well. A defense may be waived. It is waived when not pleaded. But the objection that the plaintiff comes with unclean hands will be taken by the court itself. It will be taken despite the wish to the contrary of all the parties to the litigation. The court protects itself.
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for laws; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." (Emphasis added.) 277 U.S. at 483-85, 72 L. Ed. 2d at 959-60, 48 S. Ct. at 574-75 (Brandeis, J., Dissenting).
One need not be astutely perceptive to recognize that every time a person is unjustifiably harassed and ill-treated by a policeman, that person becomes to a like degree, and at the very least sub silentio, an implacable foe of law enforcement and thereby also a foe of organized society. The principle that for every action there is an equal and opposite reaction applies not alone to the physics lab. We must always recall, as Justice Jackson aptly pointed out in Brinegar, the courts only hear about the travelers who had illegal drugs; the instances in which the search was fruitful; the wiretapped conversations that revealed criminality. How many travelers are searched, how many invasions of privacy occur in which no arrests are made, no contraband discovered, and about which the courts never hear? Yet the invasions of privacy of these law-abiding citizens are at least as acute and their degree of disgruntlement undoubtedly more intense than in those incidences where contraband is discovered. Judge John Grady of the United States District Court in Chicago and a former assistant United States Attorney put it this way:
"The cases which come to court are the ones in which the police-citizen encounter has yielded incriminating evidence. We hear nothing of any encounters where the police are wrong in their suspicions. We hear nothing about instances where the dogs sniffed luggage and did not 'alert positively' for the presence of drugs. The cases in which the police play a mere hunch, which is essentially what they claimed to have done here, and find nothing as a result of the encounter or the search are cases we never see and whose number would be mere speculation. That they exist, however, seems certain, unless one were to indulge the presumption that the police are infallible in their suspicions.
When the police are told that there is a whole area known as 'the non-coercive police-citizen encounter' in which they are free to operate, the possibility of abuse is apparent. Because the question of abuse will arise only in cases where a prosecution ensues, or in the rare case where an aggrieved person might file a civil suit for false arrest, the legal environment experienced by police officers is not one that compels or even necessarily encourages circumspection in their contacts with citizens. One danger is that the police will conduct Terry -type stops where the facts did not justify it, realizing that they will rarely be called into account in situations where 'no harm is done.' If such an attitude exists, it is a short step from there to rationalization of the unjustified stops which pay off in the recovery of contraband. . . . For instance, looking at the matter in retrospect, wasn't the suspect really looking around quite cautiously as he entered the concourse? Didn't he look back over his shoulder a few times? In the alternative, it would not be too difficult to overlook any threatening aspect of the encounter, so as to justify the argument that the interview was entirely consensual." (Emphasis added.) United States v. Freymuller (N.D. Ill. 1983), 571 F. Supp. 61, 67.
As Judge Grady pointed out, it is not unknown for the policemen to misrepresent the facts or "color" their testimony. For example, in one of the cases relied upon by the majority herein, People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616, the officer involved, Chicago police officer Boyle, was the same Officer Boyle who testified in Freymuller, and whose testimony Judge Grady specifically and unequivocally disbelieved. Beyond that, Officer Boyle and his partner, Officer Richard Crowley, are the same police officers who recently testified that they observed a defendant deplane at Chicago's Midway Airport carrying luggage when, in fact, the undisputable airline personnel testimony and computer printouts, as well as the defendant's own testimony, indisputably showed that he was not even on the plane at all, resulting in United States District Judge James Moran sustaining the defendant's motion to suppress in United States v. John Bonds.24
I do not intend to convey even a shadow of an impression that egregious privacy, property and other personal invasions occur only in drug cases. Recently it has been disclosed that Federal Judges in such American cities as Cincinnati and Miami had their telephones "bugged."25 The Chicago Tribune revealed (June 13, 1989, at 1.) under its lead headline "F.B.I. CAMERA FOUND AT POLITICIANS' HANGOUT," that the FBI placed audio-video recording equipment in a very popular Chicago Loop restaurant.26 Furthermore, according to the article, the United States Attorney conceded that the proprietors of the restaurant were not the subject of any investigation and that the camera and microphone recorded everyone's conversations within their range.
Big Brother has even snooped on librarians and library patrons. "Documents Disclose F.B.I. Investigation of Some Librarians," an article by David Johnson, reported at pages A1 and B9 of the Thursday, November 7, 1989, edition of the New York Times, states the following:
"F.B.I. agents interviewed librarians at institutions, primarily in the New York area, and asked the librarians to report contacts with people who identified themselves as Soviet-bloc nationals or as people assigned to Soviet-bloc organizations.
New documents show that librarians and others with whom the F.B.I. made contact during the surveillance program were themselves subjected to bureau scrutiny. After a number of librarians criticized the surveillance program, the bureau conducted inquiries to determine whether they were being influenced by a Soviet-backed effort to discredit the program.
'The F.B.I. never understood why people were upset with the Library Awareness Program,' said Representative Don Edwards, Democrat of California, who is chairman of the House Judiciary Subcommittee on Civil and Constitutional Rights. The panel held hearings on the program last year.
' The F.B.I. never understood that the librarians and other Americans think that libraries are sacred,' said Mr. Edwards. 'It's very dismaying that the F.B.I. so failed to understand what was the source of this criticism.'
The names fed into the F.B.I.'s system of files included a number of librarians and representatives of library-affiliated groups who had publicly criticized the program, Archive officials said.
Tom Blanton, deputy director of the Archive, said the group determined from an analysis of the bureau's search that more than 100 of the 266 people were either librarians or people affiliated with library organizations.
A September 1987 memo to the F.B.I. concerned an interview conducted at the Brooklyn public library. The memo complained that library employees resisted the bureau's surveillance effort. 'This attitude has increasingly been encountered,' the memo said, adding, 'and it should not remain unchallenged.'
Many librarians were highly critical of the surveillance program because it sought to use library circulation records, which list the users of library information, as a part of the investigation. ' We consider circulation records to be private,' said Judith F. Krug, director of the office of intellectual freedom for the American Library Association. ' It's nobody's business what you read but yours.'" (Emphasis added.) N.Y. Times, November 7, 1989, at A1, B9.
I question whether American citizens born, baptized, bred and reared in the firm belief and conviction that they have been guaranteed life, liberty and freedom from unwarranted government intrusion are really desirous or willing to reveal their most intimate private actions and conversations, all of which are perfectly legal, in order that the government might possibly or hopefully procure some tidbits of information about an unspecified subject. Yet this invariably occurs when police are permitted to indiscriminately inspect and sift through the luggage of innocent travelers until they find contraband, or audio-video record, who knows how many conversations of restaurant dining guests until the police may hear and record something incriminating from someone. Are the American people really willing to have their homes surveilled by helicopter, their luggage examined by police or sniffed by pointing police dogs, their private and personal conversations, while breaking bread, repasting and imbibing with friends, recorded by government? I think not! Are not and should not American citizens be free from their government sneaking, prowling and prying into their library visits, their librarians and their sacred freedom to read whatever they choose? Yes, most assuredly yes!
My answer is, it most assuredly cannot happen here, if, but only if, we remain true to our heritage and our constitutional principles. Over 200 years ago the Founding Fathers of this great nation made some monumental decisions and "balanced" some momentous conflicting rights, principles, guarantees and obligations. Among those rights which the Fathers intended to protect was the right of an American citizen to be secure in his person and in his house, and in his effects against unreasonable search and seizure. The fourth amendment to the Constitution of the United States, fully binding upon the States by the due process clause of the fourteenth amendment (Mapp v. Ohio (1961), 367 U.S. 643, 646 n.4, 6 L. Ed. 2d 1081, 1085 n.4, 81 S. Ct. 684, 1689 n.4) provides:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., amend. IV.
Article I, section 6, of the Constitution of the State of Illinois similarly provides.
To insure that this and every other right and guarantee in the Constitution not be abridged, whittled away, watered down or nullified, the Founding Fathers required that every Judge, from the most exalted to the petty, State as well as Federal, take an oath to support the Constitution. When the people of Cook County elected me to fill my present office I took that very oath prescribed by the Founding Fathers in article VI, clause 3, of the Constitution. I regard that oath as profound and sacred as anything I have ever done. That oath demands that I adamantly defend, protect, support, uphold and enforce, not dilute and convolute constitutional privileges and guarantees. I will not violate that solemn oath because of any perceived convenient "swings" in judicial philosophy27 or because this is a "narcotic case," or for the dubious distinction of being a foot soldier in the President's "War on Drugs," to be compatible or popular or for any other temporal and transitory reason. To paraphrase the playwright Lillian Hellman, I will not cut the Constitution or my conscience to fit this year's fashions. With all due respect for many of my brethren on this court, as well as on many other courts in this State and nation, we are reaching the point where it can be (and already is being) said with more than a modicum of truth that even more deleteriously and adversely affected by drugs than the addict are the judicial decisions stretching and perverting fundamental constitutional freedoms and principles in order to obtain and sustain criminal drug convictions.
Like Clarence Darrow, I fervently believe it is essential that strong men and women be ever vigilant in the never-ending pursuit of freedom. Defending one of his most famous cases, Darrow once said:
"I know that the nation that is not watchful of its liberty will lose it. I know that the individual that will not stand for his rights will have no rights, and I believe the first duty of every American citizen is to protect himself and his country in all the liberties we have and all that we can get.
You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free. The same thing that would get me may be used to get you, and the government that is not strong enough to protect all its citizens ought not to live upon the face of this earth." I. Stone, Clarence Darrow for the Defense (1941).
I also applaud Chief Judge Wald's opening lines in his Dissenting opinion in United States v. Bonner (D.C. Cir. 1989), 874 F.2d 822, 830:
"As citizens, we owe wholehearted support to law enforcement officials on the front lines in the war against illegal drugs. As Judges, our duty is to ensure that our laws continue to govern the conduct of our law enforcement officials. Otherwise we are at risk of losing an even more important battle -- the battle to remain a law abiding society, in the face of law violators as destructive as drug dealers." (Emphasis added.)
Judge Ferguson's words in his Dissenting opinion in United States v. Salas (9th Cir. 1989), 879 F.2d 530, are equally compelling:
"Invoking the metaphors and images of battle the government's 'war on drugs' has already made casualties of constitutional protections and personal dignity. See National Treasury Employees Union v. Von Raab (1989), 489 U.S. 656, 686,
Like Judge Poole, I long for the past, lament the present, and fear for the approaching frenzied future:
"There was a time in the history of this country when Judges -- and especially Judges of the United States courts -- understood and were anxious to honor the epochal history out of which developed jealous strictures on the issuance of search warrants. There was a time, too, when Judges did not feel the urge to weaken those dearly bought protections to which every citizen is entitled as against abuse by the government . . .." United States v. Luk (9th Cir. 1988), 859 F.2d 667, 678 (Poole, J., Dissenting).
In these waning years of the 20th century we are going to have to face some hard questions, the most difficult of which is what kind of a country are we going to leave to our children and to our children's children. Do we really want to leave them a nation dominated by constant pervasive police surveillance? A country where home and office phones are wiretapped and surveilled almost as a matter of course? A country where a citizen cannot travel without being accosted by petty officers seeking to seize and search? There are those who dislike the exclusionary rule because in many instances it results in the suppression of probative incriminating evidence. We all recognize this. The question, however, is not whether we like it but whether there exists a viable ...