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People v. Carlson

February 19, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. JODI KAE CARLSON, APPELLANT.


The opinion of the court was delivered by: Justice Bilandic

Agenda 8-May 1998.

In People v. Ross, 168 Ill. 2d 347 (1995), this court held that section 108-3(a)(1) of the Code of Criminal Procedure of 1963 (725 ILCS 5/108-3(a)(1) (West 1992)) does not authorize issuance of anticipatory search warrants. The issue in this case is whether evidence seized pursuant to an anticipatory search warrant issued and executed prior to our decision in Ross may be admitted into evidence pursuant to the good-faith exception to the exclusionary rule. We hold that such evidence is admissible under the good-faith exception.

FACTS

The Illinois State Police obtained a warrant to search defendant Jodi Kae Carlson's residence for, inter alia, psilocybin mushrooms, a controlled substance. The warrant was issued based on the affidavit of Special Agent Joseph Bolino. According to Agent Bolino's affidavit, a United States postal inspector searched an express mail package addressed to "Jodi Davis, 804 Midway Drive, Batavia, Illinois 60510." The postal inspector had applied for and received a federal search warrant to search the package after a narcotics-trained police dog had alerted to it. The package contained approximately 400 grams of psilocybin. The postal inspector resealed the package and contacted Agent Bolino. The next day, Agent Bolino applied to the circuit court of Kane County for the search warrant.

Agent Bolino's affidavit further stated that he conducted a computer search of the Secretary of State's data base and located a Jodi Carlson at 804 Midway Drive in Batavia. Agent Bolino requested issuance of an anticipatory search warrant to be executed only upon the conditions that a postal inspector, posing as a postal carrier, deliver the package to 804 Midway Drive in Batavia, and that an occupant of the residence accept the package. The affidavit also described defendant's residence. The warrant was issued at 9:25 a.m. on July 13, 1994, and executed at 10:35 a.m. that same day.

After the police executed the warrant, defendant was arrested and charged in the circuit court of Kane County with unlawful possession of a controlled substance (720 ILCS 570/402(a)(11) (West 1994)) and unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(11) (West 1994)). Defendant filed a motion to quash the search warrant and suppress the evidence seized pursuant to the warrant. The circuit court initially denied defendant's motion. Shortly thereafter, however, this court delivered the opinion in Ross, holding that anticipatory search warrants were not authorized by statute and are therefore invalid. See Ross, 168 Ill. 2d 347. Based on Ross, defendant moved for reconsideration of the denial of her motion to suppress. The circuit court granted the motion for reconsideration and suppressed the evidence in question. The State filed a motion to reconsider, arguing that the evidence should be admissible under the good-faith exception to the exclusionary rule. The circuit court denied the motion.

The State filed a certificate of impairment and appealed pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)). The appellate court reversed the circuit court's suppression order. 287 Ill. App. 3d 700. We allowed defendant's petition for leave to appeal. 166 Ill. 2d R. 315. For the reasons set forth below, we affirm the judgment of the appellate court.

ANALYSIS

An anticipatory search warrant is a warrant based upon an affidavit showing probable cause that at a future time certain evidence of a crime will be located at a specific place. 2 W. LaFave, Search & Seizure §3.7(c), at 362 (3d ed. 1996). A common situation in which police officers seek anticipatory search warrants is where postal authorities notify the police that they have intercepted from the mail a package containing drugs. The police then seek issuance of a search warrant to be executed when the intercepted package is delivered. See 2 W. LaFave, Search & Seizure §3.7(c), at 362-63, 363 n.92 (3d ed. 1996) (collecting cases).

Section 108-3(a)(1) of the Code of Criminal Procedure of 1963 (Code) governs the issuance of search warrants in Illinois. At the time the anticipatory search warrant in this case was issued, section 108-3(a)(1) authorized search warrants for the seizure of "[a]ny instruments, articles or things which have been used in the commission of, or which may constitute evidence of, the offense in connection with which the warrant is issued." 725 ILCS 5/108-3(a)(1) (West 1992). In Ross, we held that this language did not authorize the issuance of anticipatory search warrants. Ross, 168 Ill. 2d at 353-54. *fn1

It is undisputed that, pursuant to Ross, the anticipatory search warrant in this case was not authorized by statute. Therefore, defendant argues, the evidence seized pursuant to the invalid anticipatory search warrant should be inadmissible under the exclusionary rule. The State, however, argues that this evidence is admissible under the good-faith exception to the exclusionary rule as set forth in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). In Leon, the United States Supreme Court held that the fourth amendment exclusionary rule does not bar evidence obtained by a police officer who reasonably relied, in objective good faith, on a search warrant issued by a neutral and detached magistrate, but later found to be unsupported by probable cause. Leon, 468 U.S. at 919-22, 82 L. Ed. 2d at 696-98, 104 S. Ct. at 3418-20. Defendant, relying on People v. Krueger, 175 Ill. 2d 60 (1996), responds that the good-faith exception is not applicable here because of the nature of the holding in Ross.

A circuit court's ruling on a motion to quash arrest and suppress evidence is generally subject to reversal on appeal only if manifestly erroneous. People v. Wright, 183 Ill. 2d 16, 21 (1998). Where only a question of law is involved, however, the circuit court's ruling is subject to de novo review. See Wright, 183 Ill. 2d at 21. In this case, the issue raised is a question of law, and our review is therefore de novo. See Krueger, 175 Ill. 2d at 64.

I. Constitutionality of Anticipatory Search Warrants

Defendant contends that evidence seized pursuant to an anticipatory search warrant issued and executed prior to our decision in Ross is not admissible under the Leon good-faith exception to the exclusionary rule. In support, defendant argues that the anticipatory search warrant in this case was void ab initio because a crime had not been committed when the Judge issued it. This, of course, is true of all anticipatory search warrants. In essence, defendant contends that anticipatory search warrants are unconstitutional. We note that, in Ross, we held that anticipatory search warrants were statutorily invalid, not that they were constitutionally invalid. Defendant asserts, however, that the analysis in Ross depended in part on Illinois constitutional principles. Specifically, defendant points out that Ross relied upon legislative history indicating that the drafters of the statute governing search warrants intended to follow the applicable existing case law, i.e., Lippman v. People, 175 Ill. 101, 113 (1898). That decision, in interpreting the search and seizure provision of the Illinois Constitution of 1870, stated that a search warrant may be issued only after a showing that a crime has been committed. See Ross, 168 Ill. 2d at 352-53. Thus, defendant ...


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