The opinion of the court was delivered by: Justice Nickels
We here again address the constitutionality of a section of the "no- knock" statute (725 ILCS 5/108-8(b) (West 1994)). In People v. Krueger, 175 Ill. 2d 60 (1996), we held that section 108-8(b)(2) of the Code of Criminal Procedure of 1963 violated constitutional guarantees against unreasonable searches and seizures. In the instant appeal, we similarly find that section 108-8(b)(1) also fails to meet constitutional standards.
On May 21, 1996, an officer from the Elgin police department presented a complaint for search warrant in the Kane County circuit court. The complaint sought a warrant for the search of defendant, Joseph Wright, and his residence. In an affidavit filed along with the complaint, the officer stated that he obtained information from a confidential source that defendant was a gang member who was in possession of approximately 10 grams of rock cocaine and several handguns. The affidavit further requested a "no-knock" warrant for the safety of the executing officers, "being that there are firearms in the residence, which are easily accessible within seconds."
Judge Halleck issued a warrant for the search. In the warrant, Judge Halleck found sufficient exigent circumstances to justify allowing the officers to execute the warrant without first knocking and announcing their office. The warrant did not specify what exigent circumstances the court relied upon in issuing the no-knock warrant. Elgin police officers executed the warrant in the early morning. Evidence was allegedly discovered during the search and defendant was indicted in the circuit court of Kane County and charged with armed violence and various drug and weapons offenses.
Defendant moved to quash the warrant and suppress the evidence recovered during the search. In the motion, defendant relied upon this court's recent case of People v. Krueger, 175 Ill. 2d 60 (1996). In Krueger, this court held that section 108-8(b)(2) of the no-knock statute was unconstitutional because it authorized no-knock entries by police based solely on an occupant's prior possession of firearms, without any evidence that the occupants are likely to use the weapons against the police. Krueger, 175 Ill. 2d at 68-69.
A hearing was held on defendant's motion. At the hearing, the State and the defendant entered into a stipulation that the warrant was executed on May 21, 1996, at 1:06 a.m., without first knocking and announcing. The State then presented the testimony of the officer who secured the warrant. The officer testified that his confidential source observed two firearms and cocaine at defendant's residence. The firearms were reportedly in plain view, easily accessible, and had been handled by the defendant. The officer further testified that the confidential source advised that defendant was a gang member.
The officer also testified concerning information he gathered while doing surveillance on defendant's residence. The officer testified that he observed known gang members entering and leaving the premises in the week prior to the search. Several of these gang members were under investigation for shootings in the area, and one had been convicted of aggravated discharge of a firearm. The officer further testified that, at the time of the surveillance and search, friction existed between several of the area gangs, resulting in some shootings.
The officer was qualified as an expert on gang activity and allowed to give certain opinion testimony. The officer testified that drug dealers keep firearms as a means to protect themselves from other drug dealers and rival gang members. It was the officer's opinion that drugs and firearms are a dangerous mix, and he noted that some officers had been shot during the execution of search warrants where guns and drugs were present. The officer also opined that defendant was likely a high- ranking gang member and therefore a greater target for violence. The officer believed this fact would make it more likely that defendant would greet the search with violence. The officer concluded that these facts placed the officers executing the warrant in danger.
After hearing argument, the trial court granted defendant's motion to quash the warrant. In its ruling, the trial court noted that it was unclear on what statutory basis the warrant was issued. The Judge may have issued the warrant pursuant to section 108-8(b)(1), which authorized no-knock entries where firearms are accessible to any occupant. In the alternative, the trial Judge may have issued the no- knock warrant pursuant to section 108-8(b)(2), which authorized no-knock entries by police based on an occupant's prior possession of firearms.
The trial court then noted that section 108-8(b)(2) had been held unconstitutional in Krueger, because it authorized no-knock entries by police based solely on an occupant's prior possession of firearms, without any showing that the occupants are likely to use the weapons against the police. Krueger, 175 Ill. 2d at 68-69. The court further reasoned that section 108-8(b)(1) was indistinguishable from section 108-8(b)(2), in that it similarly did not require any showing that the weapons were likely to be used to resist the search. Thus, the trial court held that section 108-8(b)(1) was also unconstitutional.
The trial court then determined whether, absent the statutory authorization, the officers had a reasonable belief that valid exigent circumstances justified a no-knock entry. After reviewing the facts presented, the court held that the State failed to show any exigent circumstances that would justify a no-knock entry. Therefore, the trial court quashed the warrant and suppressed the evidence recovered during the search of ...