Appeal from the Circuit Court of Kane County. No. 94--CF--1188. Honorable Barry E. Puklin, Judge, Presiding.
Released for Publication April 18, 1997. Withdrawn from the Bound Volume.
The Honorable Justice Thomas delivered the opinion of the court. Geiger, P.j., and Colwell, J., concur.
The opinion of the court was delivered by: Thomas
The Honorable Justice THOMAS delivered the opinion of the court:
The State appeals an order suppressing evidence recovered during a search that was executed pursuant to an anticipatory search warrant. The evidence recovered in the search resulted in the arrest of defendant, Jodi Kae Carlson. The supreme court later determined that anticipatory search warrants are statutorily impermissible in Illinois, and the State now argues that the trial court should have applied the good-faith exception to the exclusionary rule. We reverse and remand.
On July 26, 1994, defendant was indicted for the unlawful possession of a controlled substance (psilocybin) with the intent to deliver (720 ILCS 570/401(a)(11) (West 1994)) and the unlawful possession of a controlled substance (psilocybin) (720 ILCS 570/402(a)(11) (West 1994)). On February 22, 1995, defendant filed a motion to suppress evidence, alleging that the police had searched her home pursuant to an anticipatory search warrant and that anticipatory warrants are statutorily prohibited in Illinois.
The warrant was issued based on the affidavit of Special Agent Joseph Bolino of the Illinois State Police. Bolino stated in his affidavit that on July 12, 1994, he was contacted by Mark Zielke, a United States postal inspector. Zielke told Bolino that he had searched an express mail parcel addressed to "Jodi Davis, 804 Midway Drive, Batavia, Illinois 60510." Zielke had obtained probable cause to search the package through the use of a narcotics-trained police dog and then applied for and received a federal search warrant to search the package. The package contained approximately 400 grams of psilocybin.
Bolino further stated that a United States postal inspector, wearing the uniform of a United States postal carrier, would deliver the package to 804 Midway Drive in Batavia on July 13, 1994, and attempt to obtain a signature from the occupant of that address. According to the affidavit, postal carrier Bill Dahl had observed mail addressed to Jodi Davis and Jodi Carlson delivered to 804 Midway Drive. Bolino conducted a computer search of the Secretary of State's data base and located a Jodi Carlson at 804 Midway Drive in Batavia. The affidavit further contained a description of the residence, obtained by Sergeant Mark Henry of the Illinois State Police. Henry also observed a vehicle parked at the residence and discovered that it was registered to Allan Carlson of Hudson, Wisconsin. Bolino requested an anticipatory search warrant to be executed only upon the condition that the package was delivered by the United States postal inspector to 804 Midway Drive in Batavia and accepted by an occupant of the residence. The affidavit ends with the statement that "This Search Warrant Shall Not Be Executed Unless All Of The Above Conditions Are Complied With." The affidavit is signed by Bolino and the judge.
With the affidavit, Bolino submitted a complaint for a search warrant, in which he described the residence and asked for permission to search for and seize (1) psilocybin mushrooms or substances containing psilocybin mushrooms; (2) paraphernalia used in the manufacture, processing, delivery, and/or use of psilocybin or substances containing psilocybin mushrooms; (3) any and all records of drug sales; (4) items indicative of residency and/or control of the above-described premises; (5) pagers with memory features, conventional and cellular telephones with memory/speed dial-redial features, answering machines, computers, and other electronic devices; and (6) books, records, receipts, notes, ledgers, and other papers relating to the transportation, ordering, purchase, and distribution of substances covered under the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 1994)). The warrant was issued in accordance with the complaint, describing the residence at 804 Midway Drive and authorizing a search of that residence for the items described in the complaint. The warrant was issued at 9:25 a.m. on July 13, 1994, and executed at 10:35 a.m. that same day.
The State filed a response to the motion to suppress in which it argued that in People v. Martini, 265 Ill. App. 3d 698, 202 Ill. Dec. 751, 638 N.E.2d 397 (1994), this appellate district had found anticipatory search warrants to be constitutionally valid. The Appellate Court, Third District, later held in People v. Ross, 267 Ill. App. 3d 711, 205 Ill. Dec. 49, 642 N.E.2d 914 (1994), that, although anticipatory search warrants pass constitutional muster, they are not permitted under the relevant Illinois statute, section 108--3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/108--3 (West 1994)). (The statute has since been amended, effective August 18, 1995, to include language that would permit anticipatory warrants. See 725 ILCS 5/108--3 (West Supp. 1995).) The State argued that the trial court should follow Martini and find that anticipatory warrants are valid. Alternatively, the State argued that, if the trial court followed Ross, the court should apply the statutory good-faith exception to the exclusionary rule--sections 114--12(b)(1) and (b)(2) of the Code (725 ILCS 5/114--12(b)(1), (b)(2) (West 1994)). Defendant filed a response in which she argued that Martini addressed the validity of anticipatory warrants only under the state and federal constitutions and that Ross was the only published case that considered the statutory validity of anticipatory warrants. The trial court followed Martini and denied the motion to suppress.
Seven days after the trial court denied the motion, the supreme court affirmed Ross ( People v. Ross, 168 Ill. 2d 347, 659 N.E.2d 1319, 213 Ill. Dec. 672 (1995)), ruling that anticipatory search warrants are not permitted by section 108--3. Defendant filed a motion to reconsider, asking the trial court to reexamine its ruling in light of Ross. The trial court granted the motion and suppressed the evidence obtained pursuant to the invalid warrant. The State filed a motion to reconsider, arguing that the court should apply the good-faith exception. The court denied the motion on March 12, 1996. The State then filed a notice of appeal and a certificate of impairment.
On appeal, the State argues that the trial court erred in suppressing the evidence recovered pursuant to the anticipatory search warrant because the officers relied in good faith on the warrant. We agree. An anticipatory search warrant is a warrant that is based on an affidavit showing probable cause that at some future time evidence of a crime will be at a certain place. Ross, 168 Ill. 2d at 350; 2 W. LaFave, Search & Seizure § 3.7(c), at 362 (3d ed. 1996). This court has previously adopted the majority view that anticipatory search warrants are constitutional. See Martini, 265 Ill. App. 3d 698, 202 Ill. Dec. 751, 638 N.E.2d 397; People v. Galdine, 212 Ill. App. 3d 472, 156 Ill. Dec. 595, 571 N.E.2d 182 (1991) (collecting cases). As previously stated, the Appellate Court, Third District, later held that, although constitutionally permissible, anticipatory warrants were not permitted by section 108--3 ( Ross, 267 Ill. App. 3d at 715), and the supreme court agreed ( Ross, 168 Ill. 2d at 354). In Ross, the supreme court initially determined that section 108--3 was ambiguous. The State had argued that the plain language of the statute would allow an anticipatory warrant, while defendant argued that the plain language of the statute required that a crime must have been committed before a warrant could issue. The supreme court stated that both constructions of the statute were reasonable and evenly plausible. The court then looked to legislative intent and determined that defendant's construction of the statute was correct. Thus, the court declared the warrant invalid and upheld the suppression of the evidence. Ross, 168 Ill. 2d at 351-54.
Nevertheless, Ross did not consider whether the good-faith exception to the exclusionary rule was applicable. In People v. Nwosu, 284 Ill. App. 3d 538, 219 Ill. Dec. 858, 672 N.E.2d 366 (1996), the Appellate Court, First District, was faced with this issue and found the good-faith exception applicable. In Nwosu, as in this case, the anticipatory warrant was obtained and executed before either the third district or the supreme court had declared such warrants to be statutorily invalid. Nwosu relied primarily on Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), in which the Supreme Court extended the good-faith exception to a situation in which the officers relied on a statute authorizing a warrantless administrative search and the statute was later declared unconstitutional. The Nwosu court stated that it saw "no distinction between a good-faith exception applied to a search and seizure under the authority of a statute later found to be unconstitutional and a good-faith exception applied to a search and seizure in reliance on a warrant based upon a statute later found to be ambiguous." Nwosu, 284 Ill. App. 3d at 543. However, Nwosu did not discuss People v. McGee, 268 Ill. App. 3d 32, 205 Ill. Dec. 883, 644 N.E.2d 439 (1994), in which we found that the Krull good-faith exception is incompatible with our State constitutional guarantee against unreasonable invasions of privacy (Ill. Const. 1970, art. I, § 6). While we agree with the first district that the good-faith exception should apply in this situation, we find that Nwosu erred in relying on Krull. As previously stated, Krull involved a warrantless search based on a statute that was later declared unconstitutional. Here, the officers were relying on a warrant, the type of which was later declared invalid pursuant to a statutory interpretation. Therefore, we find that a traditional good-faith analysis, pursuant to United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), is appropriate.
The Supreme Court first articulated the good-faith exception to the exclusionary rule in Leon and its companion case, Massachusetts v. Sheppard, 468 U.S. 981, 82 L. Ed. 2d 737, 104 S. Ct. 3424 (1984). The court held that evidence should not be excluded when obtained by the police in objective good-faith reliance on a subsequently invalidated search warrant. Leon, 468 U.S. at 922, 82 L. Ed. 2d at 698, 104 S. Ct. at 3420; Sheppard, 468 U.S. at 987-88, 82 L. Ed. 2d at 743, 104 S. Ct. at 3427. In Leon, the police relied on a warrant that was ultimately found to be unsupported by probable cause. In Sheppard, the police relied on a warrant that was defective in that it varied from the warrant affidavit and misstated the items that could be seized. The police relied on assurances from the trial judge that he had corrected the warrant form and that it ...