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November 30, 1994


Appeal from the Circuit Court of Du Page County. No. 92-DT-1203. Honorable Hollis L. Webster, Judge, Presiding.

Rehearing Denied January 10, 1995.

Justice McLAREN delivered the opinion of the court: Colwell, J., concurs. Presiding Justice Inglis specially Concurring

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The State appeals from the trial court's order granting the motion of defendant, Rosie L. McGee, to suppress the results of a blood-alcohol test taken pursuant to section 11-501.6(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501.6(a) (now 625 ILCS 5/11-501.6(a) (West 1992))). The statute was later declared facially unconstitutional in King v. Ryan (1992), 153 Ill. 2d 449, 180 Ill. Dec. 260, 607 N.E.2d 154, because it permitted unreasonable searches and seizures without the particularized probable cause (indicia of intoxication) necessary under the United States and the Illinois Constitutions. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; see People v. Lukach (1994), 263 Ill. App. 3d 318.) The State argued against suppression because the officer relied in "good faith" on the validity of the statute at the time he requested the test.

We sympathize with the legislature's attempt to facilitate the identification and prosecution of drunk drivers. We empathize with law enforcement officers who have the difficult task of preserving and protecting society while honoring their oath of office to support the Illinois Constitution. Nevertheless, we affirm.

In excluding the evidence, the circuit court relied on People v. Bessler (1989), 191 Ill. App. 3d 374, 138 Ill. Dec. 822, 548 N.E.2d 52, in which this court found inapplicable the expanded "good-faith" exception to the exclusionary rule articulated in Illinois v. Krull (1987), 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (Krull hereafter). Krull extended the "good-faith" exception of United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, originally applied to searches based on warrants later found technically defective, to a warrantless administrative inspection of a heavily regulated business under a statute later declared unconstitutional. In Bessler, this court also refused to further extend the "good-faith" exception to the exclusionary rule and thereby invade the sanctity of the home, which has long been protected by our courts from warrantless searches. Bessler, 191 Ill. App. 3d at 379.

The State invites us to reexamine the purposes of the exclusionary rule, to abrogate or limit Bessler, and to extend the good-faith exception to the exclusionary rule in this case. We decline to extend the good-faith exception articulated in Krull and considered in Bessler, and we hold that it should not be applied here by this court because such further application of the exception would violate the Illinois Constitution.

According to the undisputed facts found in the common-law record, on December 6, 1991, defendant was involved in a two-car accident in Aurora, Illinois. The investigating officer requested that defendant take a blood-alcohol test pursuant to section 11-501.6 of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501.6(a)(now 625 ILCS 5/11-501.6(a) (West 1992))), later declared facially unconstitutional. The statute provided that the driver of a motor vehicle be deemed to have given consent to be tested for alcohol or other drugs in his or her blood if there was "probable cause to believe that such person was the driver at fault, in whole or in part, for a motor vehicle accident which resulted in the death or personal injury of any person." (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501.6(a) (now 625 ILCS 5/11-501.6(a) (West 1992)).) That provision did not require particularized probable cause that the driver was driving under the influence or that the intoxication have a sufficient nexus to an offense so as to permit the warrantless testing of a defendant. ( Lukach, 263 Ill. App. 3d 318.) The evidence thus gathered could be used against a defendant in a civil or criminal proceeding, and a refusal of the test would result in suspension of the driver's license. King, 153 Ill. 2d at 455-56.

A few months after the accident, defendant was charged with driving under the influence of alcohol. On March 18, 1993, defendant filed her motion to suppress evidence, asserting that the testing was an unreasonable search under the Federal and State Constitutions. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.) Defendant relied onKing and Bessler. The State never contended that probable cause existed to test defendant, but rather argued that Krull's good-faith exception to the Federal, fourth amendment based exclusionary rule applied. There was no evidentiary hearing. Based on the briefs and arguments of the parties, the court granted defendant's motion as a matter of law, finding Bessler controlling. We review this case de novo. People v. Mourecek (1991), 208 Ill. App. 3d 87, 91, 152 Ill. Dec. 964, 566 N.E.2d 841.

In United States v. Leon, the United States Supreme Court first recognized a "good-faith" exception to the fourth amendment exclusionary rule which permits the use of evidence obtained by officers acting in objectively reasonable or "good-faith" reliance on a search warrant issued by a detached and neutral magistrate, but ultimately found to be unsupported by probable cause. This limited exception to the exclusionary rule was expressly created for searches conducted pursuant to a warrant and was not to be applied, for example, where the magistrate wholly abandoned his judicial role, or where a warrant was so lacking in indicia of probable cause or so facially deficient that the officer could not reasonably rely on it. Leon, 468 U.S. at 923, 82 L. Ed. 2d at 699, 104 S. Ct. at 3421.

In Illinois v. Krull (480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160), the Court extended the limited Leon good-faith exception by holding that the fourth amendment did not require exclusion of evidence seized by a police officer who reasonably relied, in objective good faith, on a statute that authorized a warrantless administrative search although the statute was later found to be unconstitutional. The Illinois statute in question was directed at a heavily regulated industry and allowed State officials to inspect, without a warrant, the premises of licensed motor vehicle dealers, parts dealers, and scrap processors to ascertain the accuracy of their records. Our State supreme court found the statute unconstitutional because it vested State officials with too much discretion to search. The United States Supreme Court held that the defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable. The Court concluded that the officer relied in good faith on the statute, that the exclusionary rule did not apply, and reversed our supreme court's decision ( People v. Krull (1985), 107 Ill. 2d 107, 89 Ill. Dec. 860, 481 N.E.2d 703).

In reaching this result, the Court noted that the exclusionary rule operates as a judicially created remedy designed to safeguard fourth amendment rights generally through its deterrent effect rather than as a personal constitutional right of the aggrieved party; the rule's primary purpose ostensibly is to deter future unlawful police activity and was limited to situations in which its remedial purpose would be effectively advanced. The Court did not believe the exclusionary rule would deter either legislators from enacting unconstitutional laws, or police officers acting in good faith, but postulated that any incremental deterrent benefit must be weighed against the substantial social costs of the rule. Krull, 480 U.S. at 347, 352, 94 L. Ed. 2d at 373, 376, 107 S. Ct. at 1165-66, 1168; see also People v. Krull (1989), 126 Ill. 2d 235, 241-42, 128 Ill. Dec. 105, 534 N.E.2d 125 (on remand).

The Court allowed for two rather cryptic and difficult "tests" or "exceptions to the exception" to determine when a statute cannot support an officer's objectively reasonable reliance on it. The exception would not apply (1) if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws, or (2) if an officer relied upon a statute whose provisions were such that a reasonable officer should have known that the statute was unconstitutional. Krull, 480 U.S. at 355, 94 L. Ed. 2d at 378-79; 107 S. Ct. at 1170; see Michael F. Kiely, Note, Illinois v. Krull: When Has ...

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