People v. Caballes ( 2006 )

Docket No. 91547.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROY
I. CABALLES, Appellant.
Opinion filed May 18, 2006.
JUSTICE GARMAN delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Fitzgerald and Karmeier
concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justices
McMorrow and Kilbride.
OPINION
On January 24, 2005, the Supreme Court of the United
States vacated this court=s judgment in People v. Caballes, 207
Ill. 2d 504 (2003) (Caballes I), and remanded the cause for
Afurther proceedings not inconsistent with this opinion.@ Illinois
v. Caballes, 543 U.S. 405, 410, 160 L. Ed. 2d 842, 848, 125 S.
Ct. 834, 838 (2005). Both the Supreme Court and this court in
its now-vacated judgment considered only defendant=s fourth
amendment claim. However, in his original brief to this court,
defendant also relied on article I, section 6, of the Illinois
Constitution of 1970. Ill. Const. 1970, art. I, '6. Therefore, we
must now consider whether, even though the canine sniff of
defendant=s car during a routine traffic stop did not implicate
the fourth amendment, it nevertheless violated the guarantees
of the state constitution.
We have allowed defendant=s motion to permit additional
briefing of the state constitutional issues. In addition, we have
permitted the Illinois State Bar Association (ISBA), with the
Office of the Cook County Public Defender, and the American
Civil Liberties Union of Illinois (ACLU), with a number of other
organizations, to file briefs amici curiae on behalf of the
defendant. 155 Ill. 2d R. 345.
BACKGROUND
The facts surrounding defendant=s arrest are described in
detail in our earlier opinion. Caballes I, 207 Ill. 2d at 506-08. In
brief, defendant was stopped on an interstate highway by an
Illinois state trooper for the offense of speeding. The trooper
radioed the police dispatcher to report that he was making a
stop. Before he began to write the ticket, he again radioed the
police dispatcher to determine whether defendant=s license
was valid and to check for outstanding warrants.
When the trooper first radioed the police dispatcher to
report the stop, a second trooper heard the transmission and
immediately responded to the scene. The second trooper, a
member of the Illinois State Police Drug Interdiction Team, was
accompanied by a dog trained to detect narcotics. He and the
dog arrived and walked around defendant=s car while the first
trooper was in the process of writing a warning ticket. The dog
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alerted at the trunk. A search of the trunk revealed marijuana
and defendant was placed under arrest. Approximately 10
minutes elapsed between the stop and the arrest.
The trial court denied defendant=s motion to suppress
evidence and quash arrest. After a bench trial, defendant was
convicted of cannabis trafficking (720 ILCS 550/5.1(a) (West
1998)), sentenced to a term of 12 years in prison, and ordered
to pay a street-value fine of $256,136. The appellate court
affirmed, holding that the police are not required to have
reasonable suspicion before conducting a canine sniff and that
although the license and warrant check improperly extended
the duration of the stop in this case, the resulting delay was de
minimis. People v. Caballes, No. 3B99B0932 (2001)
(unpublished under Supreme Court Rule 23).
This court reversed, with three justices dissenting. Relying
on People v. Cox, 202 Ill. 2d 462, 470-71 (2002), this court
held that when a canine sniff is Aperformed without > Aspecific
and articulable facts@ = to support its use,@ it unjustifiably
enlarges Athe scope of a routine traffic stop into a drug
investigation.@ Caballes I, 207 Ill. 2d at 510. Without addressing
the appellate court=s conclusion that duration of the stop was
not unjustifiably prolonged, this court concluded that the
evidence should have been suppressed. The dissenting
justices, relying on City of Indianapolis v. Edmond, 531 U.S.
32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000), would have
affirmed on the basis that a canine sniff is not a search.
Caballes I, 207 Ill. 2d at 512 (Thomas, J., dissenting, joined by
Fitzgerald and Garman, JJ.).
Although this court did not expressly state that it was
conducting its analysis solely under the fourth amendment to
the United States Constitution, it did state that it was applying
the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88
S. Ct. 1868 (1968), as it had previously done in other cases
involving routine traffic stops. Caballes I, 207 Ill. 2d at 508. The
majority implicitly and the dissent explicitly (Caballes I, 207 Ill.
2d at 514 (Thomas, J., dissenting, joined by Fitzgerald and
Garman, JJ.)), relied on fourth amendment jurisprudence. In
Caballes I, this court gave no consideration to defendant=s
argument that the evidence against him should have been
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suppressed under the provisions of the Illinois Constitution of
1970 (Ill. Const. 1970, art. I, '6).
The Supreme Court of the United States granted the State=s
petition for a writ of certiorari. Proceeding from the premise that
the Aduration of the stop in this case was entirely justified by
the traffic offense and the ordinary inquiries incident to such a
stop@ (Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 846-47, 125
S. Ct. at 837), the Court framed the issue as whether a dog
sniff, otherwise conducted in a reasonable manner, changes
the character of a traffic stop that is lawful at its inception.
Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at
837.
The Court answered this question in the negative. Official
conduct does not constitute a search for fourth amendment
purposes unless it compromises a legitimate interest in privacy.
Because an individual=s interest in possessing contraband
cannot be deemed legitimate, official conduct that merely
reveals the possession of contraband does not compromise a
legitimate privacy interest. Caballes, 543 U.S. at 408, 160 L.
Ed. 2d at 847, 125 S. Ct. at 837. A canine sniff by a dog trained
to detect the presence of narcotics discloses only the presence
or absence of contraband and, therefore, Adoes not implicate
legitimate privacy interests.@ Caballes, 543 U.S. at 409, 160 L.
Ed. 2d at 847, 125 S. Ct. at 838. The Court noted that this
analysis is consistent with its earlier decision that the use of
thermal-imaging equipment to detect the growing of marijuana
plants inside a home is an unlawful search. Unlike the canine
sniff, which will not reveal noncontraband items of a private
nature, thermal imaging may reveal Aintimate details@ within a
home, such as conduct in the bedroom or bathroom. Caballes,
543 U.S. at 409-10, 160 L. Ed. 2d at 848, 125 S. Ct. at 838,
citing Kyllo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94,
121 S. Ct. 2038 (2001).
ISSUES
Defendant makes three separate claims on remand. First,
he argues that this court should not continue to interpret and
apply the search and seizure provision of article I, section 6, of
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the Illinois Constitution of 1970 in lockstep with the United
States Supreme Court=s interpretation and application of the
search and seizure clause of the fourth amendment to the
United States Constitution. Second, defendant asserts that
unless the police have probable cause or reasonable
suspicion, the use of a canine sniff during a routine traffic stop
violates the privacy clause of article I, section 6, of the Illinois
Constitution of 1970. Third, defendant claims that the evidence
obtained as a result of the dog sniff should be suppressed
because the technique is not sufficiently reliable.
Standard of Review
Defendant proposes de novo review on the basis that this is
the proper standard of review of a trial court=s Aultimate finding
of probable cause or reasonable suspicion,@ citing People v.
Sorenson, 196 Ill. 2d 425, 431 (2001).
As for the first two issues raised by defendant, de novo
review is appropriate, but not for the reason stated by
defendant. We are asked to consider whether to abandon or
reaffirm the lockstep doctrine and whether the right to privacy
guaranteed by the state constitution is implicated by a dog sniff
of a car during a routine traffic stop. These are questions of
law, subject to de novo review for that reason. Woods v. Cole,
181 Ill. 2d 512, 516 (1998).
As for the third issue, there is a question of law at
issueBwhether dog sniffs in general are so unreliable that they
should be not allowed at all. We review this question de novo.
Woods, 181 Ill. 2d at 516. In addition, we must review the trial
court=s factual determination that the police dog, Krott, was well
trained and sufficiently reliable that his alert gave the police
probable cause to search the trunk of defendant=s car. A[W]hen
a trial court=s ruling on a motion to suppress evidence involves
factual determinations and credibility assessments,@ the ruling
will not be disturbed on appeal unless it is manifestly
erroneous. Sorenson, 196 Ill. 2d at 431.
History of the ALockstep@ Doctrine in Illinois
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When considering the relationship, if any, between the
meaning of the state constitution and the meaning of the
federal constitution, there are three possible scenarios. First, a
provision may be unique to the state constitution and,
therefore, must be interpreted without reference to a federal
counterpart. The single-subject rule of the Illinois Constitution
of 1970 (Ill. Const. 1970, art. IV, '8(d)) is such a provision.
Second, a provision in the state constitution may be similar
to a provision in the federal constitution, but differ from it in
some significant respect. The language of such a provision
must be given effect. See, e.g., People v. Fitzpatrick, 158 Ill. 2d
360, 364-65 (1994) (finding a statute unconstitutional because
it infringed the guarantee of Aface-to-face@ confrontation then
contained in article I, section 8, of the Illinois Constitution, even
though the statute would have been deemed constitutional
under the sixth amendment to the federal constitution). See
also, e.g., Wash. Const., art. I, '7 (ANo person shall be
disturbed in his private affairs, or his home invaded, without
authority of law@); State v. Gunwall, 106 Wash. 2d 54, 61-63
720 P.2d 808, 812-13 (1986) (interpreting this provision to
provide broader protection than the fourth amendment and
thus requiring a body of state constitutional jurisprudence
entirely independent of the fourth amendment).
Third, the provision in the state constitution may be identical
to or synonymous with the federal constitutional provision. In
the present case, we are asked to reconsider this court=s long-
standing position that the search and seizure clause of article I,
section 6, of the Illinois Constitution of 1970 should be
interpreted in the same manner as the virtually identical search
and seizure clause of the fourth amendment to the United
States Constitution.
The search and seizure provision of the Illinois Constitution
of 1870 provided that:
AThe 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 warrant shall issue without probable
cause, supported by affidavit, particularly describing the
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place to be searched, and the persons or things to be
seized.@ Ill. Const. 1870, art. II, '6.
This provision, unlike the search and seizure clauses in the
constitutions of some other states, did not predate the adoption
of the federal constitution in 1791. See W. Brennan, State
Constitutions and the Protection of Individual Rights, 90 Harv.
L. Rev. 489, 501 (1977) (A[T]he drafters of the federal Bill of
Rights drew upon corresponding provisions in the various state
constitutions. Prior to the adoption of the federal Constitution,
each of the rights eventually recognized in the federal Bill of
Rights had previously been protected in one or more state
constitutions@). Rather, this language was clearly modeled
upon the fourth amendment to the United States Constitution,
which provides that:
AThe 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.
See also G. Braden & R. Cohn, The Illinois Constitution: An
Annotated and Comparative Analysis 28 (1969) (explaining that
the fourth amendment to the United States Constitution is the
direct and lineal ancestor of the protection afforded by the
Illinois Constitution).
The phrase Asupported by affidavit@ in the state provision
being virtually synonymous with Aby Oath or affirmation@ in the
fourth amendment, this court repeatedly held that the two
constitutions should be construed alike. See People v. Castree,
311 Ill. 392, 395 (1924) (AThe fourth amendment to the Federal
constitution is in practically the same words@); People v.
Reynolds, 350 Ill. 11, 16 (1932) (noting that the fourth
amendment was Athe prototype for section 6 of article 2 of our
State constitution and no reason is perceived why the latter
should not receive the same interpretation as the former@);
People v. Grod, 385 Ill. 584, 592 (1944) (the guarantees of the
fourth and fifth amendments Aare in effect the same as sections
6 and 10 of article II of the Illinois constitution, and are
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construed alike@); People v. Tillman, 1 Ill. 2d 525, 529 (1953)
(Awhile in somewhat different language,@ the two provisions are
Ain effect the same@ and should be construed alike); People v.
Jackson, 22 Ill. 2d 382, 387 (1961) (restating intention to
Afollow the decisions of the United States Supreme Court on
identical State and Federal constitutional problems@).
In 1961, the United States Supreme Court determined that
the provisions of the fourth amendment applied to the states
via the due process clause of the fourteenth amendment. Mapp
v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961)
(finding the federal exclusionary rule, based on the fourth
amendment, applicable to the states via the due process
clause of the fourteenth amendment). Shortly thereafter, this
court stated that even before the Mapp decision, it Ahad
followed the Supreme Court decisions interpreting the fourth
amendment in our interpretation of section 6 of article II of the
Illinois constitution,@ and indicated its intent to continue this
practice. People v. Williams, 27 Ill. 2d 542, 544 (1963).
The Alockstep doctrine,@ as it has come to be known, thus
has deep roots in Illinois and was firmly in place before the
adoption of the 1970 constitution. This fact would have been
known to the drafters of the Bill of Rights of the 1970
constitution, to the constitutional delegates who voted to adopt
the present language, and to the voters who approved the new
constitution. See People v. Tisler, 103 Ill. 2d 226, 241-42
(1984) (summarizing the committee report, the proceedings of
the constitutional convention, and the explanation provided to
voters).
When the new state constitution was adopted in 1970,
article II, section 6, was replaced with the following language:
AThe people shall have the right to be secure in their
persons, houses, papers, and other possessions
against unreasonable searches, seizures, invasions of
privacy or interceptions of communications by
eavesdropping devices or other means. No warrant
shall issue without probable cause, supported by
affidavit particularly describing the place to be searched
and the persons or things to be seized.@ Ill. Const. 1970,
art. I, '6.
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This provision employs more modern usage (referring to
Apossessions@ rather than Aeffects@), and a more accessible
grammatical style (making Apeople@ the subject of the
sentence, rather than the Aright of the people@). In addition, the
provision was substantively changed by inclusion of two new
clauses, each of which created a right not expressly stated in
the 1870 constitutionBthe right to be secure against
unreasonable invasions of privacy by the state and the right to
be secure against unreasonable interceptions of
communications by the state.
The question of whether to continue to adhere to the
lockstep doctrine under the new constitution or to abandon it
was first considered by this court in People v. Rolfingsmeyer,
101 Ill. 2d 137 (1984). At issue was whether the implied-
consent statute of the Illinois Vehicle Code violated the
protection against compelled self-incrimination contained in the
fifth amendment to the United States Constitution and, in
almost identical language, in article I, section 10, of the Illinois
Constitution of 1970. This court reviewed the proceedings of
the constitutional convention and found nothing to indicate an
intent to provide broader protection under the state constitution
and Aa general recognition and acceptance of interpretations by
the United States Supreme Court.@ Rolfingsmeyer, 101 Ill. 2d at
142. A member of the Bill of Rights Committee explained that
the committee considered and rejected proposals to alter the
language of the self-incrimination provision, but decided A >that
the existing state of the law would remain unchanged.= @
Rolfingsmeyer, 101 Ill. 2d at 142, quoting 3 Record of
Proceedings, Sixth Illinois Constitutional Convention 1376-80
(hereinafter cited as Proceedings). The existing state of the law
at that time was lockstep interpretation of identical or nearly
identical language. In the end, this court held that the implied-
consent statute did not violate the privilege against self-
incrimination in either the federal or the state constitution.
Rolfingsmeyer, 101 Ill. 2d at 142.
In a special concurrence, one justice stated many of the
arguments made by the defendant in the present case. He
noted that this court is not Abound to automatically follow the
decisions of the United States Supreme Court interpreting the
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comparable provision contained in the fifth amendment of the
Federal Constitution.@ Rolfingsmeyer, 101 Ill. 2d at 143 (Simon,
J., specially concurring). The concurring justice criticized the
majority for assuming that when the same language appears in
the two constitutions, it necessarily has same content unless
some indication to the contrary is found in the report of
proceedings of the constitutional convention: AThis presumption
is the reverse of the correct one and inverts the proper
relationship between the State and Federal constitutions.@
Rolfingsmeyer, 101 Ill. 2d at 143 (Simon, J., specially
concurring). In contrast, he asserted, there is Ano evidence in
the record of proceedings of the Illinois constitutional
convention to indicate that the framers of article I, section 10,
intended to limit the content of the self-incrimination clause to
the precedents of the United States Supreme Court.@
Rolfingsmeyer, 101 Ill. 2d at 144 (Simon, J., specially
concurring). Thus, he concluded, the framers of the new state
constitution Adid not reject further development of the law by
this court or by the Supreme Court of the United States.@
Rolfingsmeyer, 101 Ill. 2d at 145 (Simon, J., specially
concurring).
Later that same year, the issue surfaced again in the
context of search and seizure. In People v. Hoskins, 101 Ill. 2d
209 (1984), this court permitted the admission of drugs into
evidence after they were found in a search of the defendant=s
purse, which she had either thrown to the ground or dropped
while fleeing from officers who were attempting to arrest her for
prostitution. Hoskins was argued and decided as a fourth
amendment question, but the court added, in dicta, that A[a]ny
contention that section 6 of the bill of rights in our own
constitution was to be interpreted differently from the Supreme
Court=s interpretations of the search provisions of the fourth
amendment to the United States Constitution cannot be
supported@ because the Aconstitutional debates do not indicate
any wish or intent to provide protections against unreasonable
searches and seizures broader than those existing under
decisional interpretations under the fourth amendment to the
United States Constitution.@ Hoskins, 101 Ill. 2d at 218. In a
dissent, the same justice wrote that A[t]he time has come for
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the Illinois Supreme Court to recognize its independent
obligation to interpret the bill of rights contained in the Illinois
Constitution, and to make its own assessment of the
appropriate balance between the privacy rights of our citizens
and the legitimate requirements of law enforcement.@ Hoskins,
101 Ill. 2d at 236 (Simon, J., dissenting).
This court=s decision in People v. Tisler, 103 Ill. 2d 226, 245
(1984), is generally considered to be the seminal case on the
question of lockstep interpretation of the search and seizure
provisions of the two constitutions. Before delving into the
lockstep analysis in Tisler, however, some background is in
order.
In People v. Gates, 85 Ill. 2d 376 (1981), rev=d, Illinois v.
Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983),
this court applied the two-prong test announced in Aguilar v.
Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964),
and explained further in Spinelli v. United States, 393 U.S. 410,
21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), to determine that a
warrant was not properly issued based on a tip contained in an
anonymous letter that did not contain any statement showing
that the author acquired the information through firsthand or
personal knowledge. At the time our 1970 constitution was
adopted, the Aguilar-Spinelli test was part of the dual
state/federal jurisprudence of search and seizure that existed
under our long-standing lockstep approach. When the
Supreme Court decided Gates, however, it abandoned the
Aguilar-Spinelli test in favor of a new totality-of-the-
circumstances test. Gates, 462 U.S. at 238-39, 76 L. Ed. 2d at
548, 103 S. Ct. at 2332. This court subsequently applied the
new, federal Gates test for the existence of probable cause for
a warrant based on an anonymous tip, but did not expressly
reject the Aguilar-Spinelli approach. See People v. Exline, 98
Ill. 2d 150 (1983) (upholding the warrant under either the
Aguilar-Spinelli test or the Gates totality-of-the-circumstances
test); but see Exline, 98 Ill. 2d at 157-58 (Goldenhersh, J.,
dissenting, joined by Simon, J.) (noting that this court is Anot
required to blindly follow the action taken by the Supreme
Court in determining the standards applicable under our own
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constitution,@ and favoring retention of the Aguilar-Spinelli test
under the Illinois Constitution).
In Tisler, unlike in Exline, the question was squarely
presented when the defendant argued, as a matter of state
constitutional law, that this court should reject Gates and retain
Aguilar-Spinelli. Tisler, 103 Ill. 2d at 241. This court looked to
the drafters= choice of search and seizure language Anearly the
same as that of the fourth amendment,@ the report of the Bill of
Rights Committee, the record of proceedings, and the
informational materials distributed to voters to determine that in
adopting article I, section 6, the constitutional convention
Amanifested no intent to expand the nature of the protection
afforded by the fourth amendment.@ Tisler, 103 Ill. 2d at 241-
42. Thus, when this court employed the Aguilar-Spinelli test
prior to the adoption of the 1970 constitution,
A[W]e were not establishing the Aguilar test as defining
the extent of the protection afforded by the Illinois
Constitution. Those decisions, in effect, held that the
protection against unreasonable searches under the
Illinois Constitution is measured by the same standards
as are used in defining the protection against
unreasonable searches contained in the fourth
amendment to the United States Constitution.@ Tisler,
103 Ill. 2d at 243.
Notwithstanding our continued reliance on the lockstep
approach to the interpretation of the search and seizure
provision of the state constitution, this court acknowledged that
it was free to construe the state constitution differently from the
federal constitution (Tisler, 103 Ill. 2d at 243), and formulated a
test for determining when the state constitution need not be
interpreted in lockstep with the federal constitution:
AAfter having accepted the pronouncements of the
Supreme Court in deciding fourth amendment cases as
the appropriate construction of the search and seizure
provisions of the Illinois Constitution for so many years,
we should not suddenly change course and go our
separate way simply to accommodate the desire of the
defendant to circumvent what he perceives as a
narrowing of his fourth amendment rights under the
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Supreme Court=s decision in Illinois v. Gates. Any
variance between the Supreme Court=s construction of
the provisions of the fourth amendment in the Federal
Constitution and similar provisions in the Illinois
Constitution must be based on more substantial
grounds. We must find in the language of our
constitution, or in the debates and the committee
reports of the constitutional convention, something
which will indicate that the provisions of our constitution
are intended to be construed differently than are similar
provisions in the Federal Constitution, after which they
are patterned.@ Tisler, 103 Ill. 2d at 245.
A concurring justice noted the Adeveloping interest in State
constitutionalism@ among legal scholars. Tisler, 103 Ill. 2d at
253 (Ward, J., concurring). Beginning with the principle that
when interpreting a constitution, a court must Aascertain and
give effect to the intent of the framers of it and the citizens who
have adopted it@ (Tisler, 103 Ill. 2d at 254 (Ward, J.,
concurring)), the concurring justice opined that:
AIf these principles of constitutional construction
were to be ignored critics not unreasonably would
declare it judicial arrogance for courts to say that their
power to construe constitutions was limited only by the
restraints courts might impose upon themselves. Courts
are not legislatures, and neither are they constitutional
framers and adopters of constitutions. What Justice
Powell said in another context is not without relevance:
>We should be ever mindful of the contradictions that
would arise if a democracy were to permit general
oversight of the elected branches of government by a
nonrepresentative, and in large measure insulated,
judicial branch.= @ Tisler, 103 Ill. 2d at 255 (Ward, J.,
concurring), quoting United States v. Richardson, 418
U.S. 166, 188, 41 L. Ed. 2d 678, 695, 94 S. Ct. 2940,
2952 (1974) (Powell, J., concurring).
After reviewing the research papers and other materials made
available to the delegates, the concurring justice concluded
that they were well informed regarding their ability to expand
the protections guaranteed by the federal Bill of Rights as
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applied to the states through the fourteenth amendment. Based
on these materials, he further concluded that the delegates
made a Aconscious decision@ to leave the search and seizure
provision unchanged but to add two new provisions dealing
with privacy and eavesdropping. Tisler, 103 Ill. 2d at 255-58
(Ward, J., concurring).
In subsequent years, this court has often reiterated its intent
to utilize the lockstep approach when construing the search
and seizure clause of article I, section 6. See, e.g., People v.
Mitchell, 165 Ill. 2d 211, 217-22 (1995) (although a state is free
to construe its own constitution as providing greater protection
than comparable provisions in the federal constitution, the
search and seizure provision of our state constitution was not
intended to be broader than the search and seizure provision
of the fourth amendment); People v. Cox, 202 Ill. 2d 462, 482
(2002) (reaffirming lockstep principle with respect to the search
and seizure provision of the state constitution and the fourth
amendment); People v. Lampitok, 207 Ill. 2d 231, 240-41
(2003) (noting this court=s long-standing acknowledgment that
the fourth amendment and the search and seizure provision of
article I, section 6, of the Illinois Constitution provide Athe same
level of protection,@ and that unless a successful argument is
made that in a particular situation the Illinois Constitution
provides broader protection, Illinois courts will follow United
States Supreme Court decisions on search and seizure
issues).
Nevertheless, this court has, on occasion, departed from
strict lockstep interpretation when circumstances warrant. In
People ex rel. Daley v. Joyce, 126 Ill. 2d 209 (1988), the issue
was the constitutionality of section 115B1 of the Code of
Criminal Procedure, which provided the State with the right to a
jury in certain criminal trials. Federal constitutional law
permitted a statute that required government consent to a
defendant=s waiver of a jury trial. Joyce, 126 Ill. 2d at 213,
citing Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630,
85 S. Ct. 783 (1965) (upholding Federal Rule of Criminal
Procedure 23(a)). If this court had interpreted article I, section
13, of the state constitution in lockstep with federal
constitutional law, it would have upheld the constitutionality of
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the statute. Instead, this court looked to the language of the
state constitution, the history of the provisions dealing with the
right to a jury trial, including the committee reports and
debates, and the common law decisions of this court with
respect to jury trials that, the debates revealed, the drafters
intended to adopt as constitutional principles. Based solely
upon Illinois constitutional principles, this court found section
115B1 unconstitutional and held that in a criminal prosecution,
only the defendant has a right to a jury trial. Joyce, 126 Ill. 2d
at 222.
In People v. McCauley, 163 Ill. 2d 414 (1994), this court
considered whether a defendant=s waiver of his fifth
amendment right to counsel was valid where he was denied
access to an attorney hired by his family, and who was present
at the police station during the interrogation, trying
unsuccessfully to see him. Based on the Supreme Court=s
decision in Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410,
106 S. Ct. 1135 (1986), this court concluded that the police
conduct in denying the attorney access to his client did not
violate the fifth amendment. McCauley, 163 Ill. 2d at 421. This
court went on, however, to consider whether such conduct by
police violated the due process guarantee of article I, section 2,
of the state constitution. McCauley, 163 Ill. 2d at 425-47. After
an extensive analysis of this court=s previous decisions,
decisions of the courts of our sister states, and, most
importantly, the intent of the drafters of the 1970 constitution
(McCauley, 163 Ill. 2d at 439-40), this court concluded that the
defendant=s right to due process under the state constitution
was violated when he was denied the benefit of counsel during
his custodial interrogation. McCauley, 163 Ill. 2d at 444. For
example, we noted that the debates of the constitutional
convention revealed an intention that the Athen-existing Federal
constitutional principles regarding incommunicado
interrogation@ remain unchanged under the new constitution.
McCauley, 163 Ill. 2d at 439. When the Supreme Court
decided Burbine, it diminished the protections previously
provided under the fifth amendment right to counsel.
In McCauley, however, we did not ascribe a different
interpretation to a provision of the state constitution than the
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Supreme Court had ascribed to the corresponding federal
constitutional provision. Rather, we determined that the police
conduct at issue implicated state due process concerns.
McCauley, therefore, does not represent a departure from
lockstep interpretation of identical or nearly identical language.
See Relsolelo v. Fisk, 198 Ill. 2d 142, 150 (2001)
(distinguishing McCauley and holding that the self-incrimination
clause of article I, section 10, of the Illinois Constitution is to be
interpreted in lockstep with the fifth amendment because Athe
substantial grounds necessary for this court to depart from the
federal interpretation of the self-incrimination clause are not
present in this case@).
In People v. Washington, 171 Ill. 2d 475 (1996), however,
this court did make an exception to the lockstep doctrine. This
court held, as a matter of due process under the state
constitution, that a free-standing claim of innocence is
cognizable in a proceeding under the state Post-Conviction
Hearing Act, even though the Supreme Court decided in
Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct.
853 (1993), that such a claim was not cognizable as a violation
of due process in a federal habeas corpus proceeding. Several
grounds for departure from the Supreme Court=s ruling were
mentioned: Herrera was Aa conflicted decision@; the record of
proceedings of the constitutional convention did Anot reveal
anything as to what the drafters intended@ in this context; the
McCauley decision demonstrated this court=s willingness to
look to this state=s historical approach to a due process
question; and refusal to consider a claim of actual innocence
would be fundamentally unfair and would shock the
conscience. Washington, 171 Ill. 2d at 485-88. A commentator
characterized this court=s decision in Washington as Aimplicitly
eschewing lockstep.@ J. Reddy, 1996 Illinois Supreme Court
Criminal Law Opinions: Not Marching in Lockstep, 85 Ill. B.J.
270, 270 (1997). Indeed, the dissenting justices in Washington
criticized the majority for reaching its decision without
specifically engaging in the analysis Aexemplified in Tisler.@
Washington, 171 Ill. 2d at 500 (Miller, J., dissenting, joined by
Bilandic, C.J.).
-16-
This court appeared to depart from the lockstep approach in
People v. Krueger, 175 Ill. 2d 60 (1996), by declining to follow
the holding of Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364,
107 S. Ct. 1160 (1987), which recognized a good-faith
exception to the exclusionary rule when the search was
authorized by a statute later determined to be unconstitutional.
The threshold issue in Krueger was the constitutionality of a
state statute permitting the issuance of a warrant authorizing
Ano-knock@ entry into a building where the judge found that the
occupant had possessed firearms within a reasonable period of
time prior to the application for the warrant. Krueger, 175 Ill. 2d
at 64. Citing Tisler, this court engaged in lockstep analysis of
the fourth amendment and article I, section 6, of the state
constitution to determine whether the statute was
constitutional. Krueger, 175 Ill. 2d at 65-69. Finding the statute
unconstitutional under fourth amendment principles, the next
question was whether the evidence seized during the search
should be suppressed. This court concluded that the AKrull
good-faith exception does not comport with article I, section 6,
of the Illinois Constitution of 1970.@ Krueger, 175 Ill. 2d at 70.
Noting this state=s history of applying the exclusionary rule
under the state constitution as well as a long-standing tradition
of barring evidence gathered under the authority of an
unconstitutional statute, this court rejected the Krull good-faith
rule as creating a Agrace period for unconstitutional search and
seizure legislation,@ during which constitutional rights of Illinois
citizens could be violated with impunity. Krueger, 175 Ill. 2d at
75. Thus, this court Aknowingly depart[ed]@ from the lockstep
tradition to give effect to another traditionBthe exclusion of
evidence gathered in violation of the state constitution=s
prohibition of unreasonable searches and seizures. Krueger,
175 Ill. 2d at 74, citing People v. Brocamp, 307 Ill. 448 (1923)
(noting the Supreme Court=s adoption of a federal exclusionary
rule in Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34
S. Ct. 341 (1914), and adopting a similar rule under the state
constitution).
The same commentator noted that:
A[I]n both Washington and Krueger, the court found
broader protections for Illinois citizens than those
-17-
afforded under recent U.S. Supreme Court decisions
without any showing of a difference in the language of
the constitutional provisions being construed and
without any reference to the debates of the Illinois
Constitutional Convention.@ 85 Ill. B.J. at 271.
He further opined that this court had Aclearly moved from
lockstep application to mere deference. That is, the court will
continue to apply U.S. Supreme Court precedent when it is
persuasive.@ 85 Ill. B.J. at 271.
We rejected that reading, however, in People v. Bolden,
197 Ill. 2d 166, 179-80 (2001), in which we explained that:
AWe do not construe Krueger as suggesting that the
search and seizure clause of article I, section 6, of the
Illinois Constitution must be interpreted more
expansively than the corresponding right found in the
fourth amendment. The exclusionary rule is a judicially
created remedy, and its history in Illinois may be traced
to this court=s decision in People v. Brocamp, 307 Ill.
448 (1923).@
Thus, in Krueger, we did not depart from lockstep
interpretationBthe challenged statute was unconstitutional
under both the state and federal constitutions. Krueger was a
case about remedies. We construed state law as providing a
remedy for the constitutional violation even though the federal
constitution did not require one.
Against the backdrop of this court=s decades-long history of
lockstep interpretation of cognate provisions of the state and
federal constitutions, as well as the making of occasional
exceptions to the lockstep doctrine, we now turn to defendant=s
argument that we should abandon lockstep entirely and set
about developing an independent body of state constitutional
law.
Continued Adherence to Illinois= Limited Lockstep Doctrine
Defendant asserts that the lockstep doctrine has been
adopted by this court as a Agoverning rule,@ rather than a
Adiscretionary practice.@ He argues for abandonment of this
approach and states that it is Avital as a matter of state
-18-
sovereignty and federalism@ that this court independently
examine constitutional issues under the state constitution
rather than consider itself bound by the interpretation of the
cognate provisions of the United States Constitution by the
United States Supreme Court. Doing otherwise, he claims, is
an abandonment by this court of its duty and a forfeiture of the
sovereignty of the State of Illinois. With specific reference to his
own claim, defendant notes that our use of the lockstep
approach results in the Supreme Court=s being able to review
Apro-defense decisions@ of this court, such as those reversing a
conviction or affirming the suppression of evidence. He argues
that this is unfair to defendants who have obtained a favorable
ruling from an Illinois court when that decision is subsequently
reversed by the Supreme Court. Our lockstep approach,
according to defendant, permits Aa state court to avoid
accountability by hiding behind federal law@ and Adiminishes the
experimental function that federalism allows.@
Amicus ISBA also urges this court to reject the lockstep
doctrine and to develop an independent body of law
interpreting article I, section 6, of the Illinois Constitution.
Amicus ACLU maintains that this court=s lockstep approach
violates the judicial oath and does violence to the principle that
it is this court=s nondelegable duty to construe and interpret the
Illinois Constitution. The ACLU states that:
ABy >harnessing= its interpretation of the Illinois
Constitution to the United States Supreme Court=s
jurisprudence, this Court would improperly abdicate its
non-delegable constitutional duty to >say what the law
is.= In doing so, this Court would undermine the
sovereignty and independence of the State of Illinois,
and degrade both this Court and the rights of Illinois
citizens.@
Further, with respect to the particular facts of this case, the
ACLU asserts:
AA suspicionless canine sniff undeniably alters the
scope of a traffic stop, as this investigative technique
categorically transforms traffic stops into criminal
investigations. Furthermore, the presence of a drug-
sniffing dog fundamentally changes the traffic stop from
-19-
a minor, unintrusive interaction with law enforcement
into an intrusive, humiliating, and often intimidating
encounter. It is also a practice that facilitates racial
profiling.@
The ACLU concludes that this court should interpret article I,
section 6, of the Illinois Constitution to be more protective of
individual rights than the fourth amendment requires.
In response, the State points out that nothing in the text or
history of the search and seizure clause of article I, section 6,
suggests an intent that it be interpreted differently from the
fourth amendment, at least in the context of traffic stops or the
use of trained canines by the police. The State also argues that
the doctrine of stare decisis weighs heavily in favor of not
overruling Tisler, Mitchell, Bolden, and their progeny.
In 1977, just seven years after Illinois adopted its present
constitution, an influential article by Justice William J. Brennan,
Jr., appeared in the Harvard Law Review. See 90 Harv. L. Rev.
489. Justice Brennan urged state courts to view their state
constitutions as Aa font of individual liberties,@ that is, as a
source of positive rights and liberties entitled to protection
beyond that required by the United States Supreme Court=s
interpretation of the federal constitution. 90 Harv. L. Rev. at
491. He criticized a trend in decisions of the Court that, in his
opinion, pulled back from earlier, more protective rulings. 90
Harv. L. Rev. at 495 & nn.47-51 (and cases cited).
Justice Brennan further noted, at least with respect to state
constitutions predating the drafting of the Bill of Rights, that
these state constitutions were not adopted Ato mirror the
federal Bill of Rights.@ Rather, he observed that Aprior to the
adoption of the fourteenth amendment [in 1868], these state
bills of rights, independently interpreted, were the primary
restraints on state action since the federal Bill of Rights had
been held inapplicable.@ 90 Harv. L. Rev. at 501-02.
In Justice Brennan=s view, many Adoor-closing decisions@
had unfortunately been rendered by the Court in the name of
federalism. The Court, he said, had Acondoned both isolated
and systematic violations of civil liberties.@ 90 Harv. L. Rev. at
502. Justice Brennan concluded by urging state courts to Astep
-20-
into the breach@ and to give effect to state constitutions that
provide Aa double source of protection for the rights of our
citizens.@ 90 Harv. L. Rev. at 503.
Thus began the scholarly debate regarding the relationship
between cognate provisions of the state and federal
constitutions. The approach urged by Justice Brennan was
criticized as Aprogrammatic@ and Aresult-oriented.@ L. Friedman,
The Constitutional Value of Dialogue and the New Judicial
Federalism, 28 Hastings Const. L.Q. 93, 94 (2000). It was
suggested that Justice Brennan=s encouragement of the rise of
state constitutionalism was merely a response to the changing
make-up of the Court. See 28 Hastings Const. L.Q. at 94 n.3.
See also W. Brennan, The Bill of Rights and the States: The
Revival of State Constitutions as Guardians of Individual
Rights, 61 N.Y.U. L. Rev. 535, 547-48 (1986) (noting Aan
unmistakable trend in the Court to read the guarantees of
individual liberty restrictively, which means that the content of
the rights applied to the states is likewise diminished@; and that
Athe Court=s contraction of federal rights and remedies on
grounds of federalism should be interpreted as a plain
invitation to state courts to step into the breach@).
Other authors and some state supreme courts embraced
Brennan=s call for a Anew judicial federalism.@ See 28 Hastings
Const. L.Q. at 94 nn.4, 5. In this view, courts that find it
unnecessary to distinguish between state and federal
constitutional provisions when they use the same language
Areduce[ ] state constitutional law to a redundancy and greatly
discourage[ ] its use and development.@ J. Gardner, The Failed
Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 804
(1992). Defendant bases his argument, in large part, on T.
McAffee, The Illinois Bill of Rights And Our Independent Legal
Tradition: A Critique Of The Illinois Lockstep Doctrine, 12 S.I.U.
L.J. 1, 87 (1987) (urging the Illinois Supreme Court to abandon
lockstep analysis of constitutional issues because lockstep
Alimit[s] the judicial role in giving effect to the promise held out@
by the guarantees of the state constitution).
Both before and since Justice Brennan=s call to action, state
courts have adopted various methods for construing cognate
provisions of the state and federal constitutions. One method is
-21-
the lockstep approach, by which the state court binds itself to
following prior Supreme Court interpretation of the federal
constitutional text.
AUnder the lockstep approach, the state
constitutional analysis begins and ends with
consideration of the U.S. Supreme Court=s interpretation
of the textual provision at issue. On this approach,
federal rulings are regarded as having attained >a
presumption of correctness= from which the state should
be loathe to part. In other words, congruence with
federal decisional law is assumed to be the norm, and
deviation is for all intents and purposes impossible.
Such an approach is justified, at least in regard to the
enforcement of the criminal law, by an interest in
uniformity, which urges the development of identical
state and federal rules to control government conduct in
regard to procedural issues.@ 28 Hastings Const. L.Q. at
102-03.
A second approach is based on the application of criteria by
the state court to determine whether factors unique to the state
weigh in favor of departing from the Supreme Court=s
interpretation of the same constitutional language. This has
been referred to the Ainterstitial approach.@ 90 Mich. L. Rev. at
774.
AUnder the interstitial approach, the court asks first
whether the right being asserted is protected under the
federal constitution. If it is, then the state constitutional
claim is not reached. If it is not, then the state
constitution is examined. [Citation.] A state court
adopting this approach may diverge from federal
precedent for three reasons: a flawed federal analysis,
structural differences between state and federal
government, or distinctive state characteristics.@ State v.
Gomez, 122 N.M. 777, 783, 932 P.2d 1, 7 (1997).
Other sources describe the interstitial approach as a state
court=s turning to the state constitution for guidance only Aif
federal constitutional law approves the challenged state action,
or is ambiguous.@ 90 Mich. L. Rev. at 774-75. Under either of
these formulations of the interstitial approach, the focus of
-22-
constitutional inquiry is on Athe ways in which the state and
federal constitutions differ.@ Federal constitutional decisions are
the starting point, and the party urging greater protection than
federal law affords must argue that the state and federal
constitutions Adiffer in dispositive ways.@ 90 Mich. L. Rev. at
777-78.
A third approach, that urged by defendant and his amici, is
the primacy or primary approach, under which Athe state court
undertakes an independent [state] constitutional analysis,
using all the tools appropriate to the task, and relying upon
federal decisional law only for guidance.@ 28 Hastings Const.
L.Q. at 95.
When a state court employs the interstitial approach or the
primacy approach, it can insulate its decision from Supreme
Court review by stating Aclearly and expressly that it is
alternatively based on bona fide, separate, adequate, and
independent [state] grounds.@ Michigan v. Long, 463 U.S.1032,
1041, 77 L. Ed. 2d 1201, 1214, 103 S. Ct. 3469, 3476 (1983).
This court=s approach to analysis of cognate provisions in
the Illinois and United States Constitutions has been described
as Alockstep.@ Indeed, this court itself has employed this term.
However, on further consideration, it is clear that it is an
overstatement to describe our approach as being in strict
lockstep with the Supreme Court. The approach that this court
has taken is more properly described as either an interstitial or
perhaps a limited lockstep approach. While we have not
unequivocally adopted the interstitial approach as it has been
broadly defined by the New Mexico court (Gomez, 122 N.M. at
783, 932 P.2d at 7), we have, at the very least, embraced a
narrow version of the interstitial approach, under which we
recognize several justifications for departing from strict
lockstep analysis. This approach has been described as one
under which a court will A >assume the dominance of federal
law and focus directly on the gap-filling potential= @ of the state
constitution. 28 Hastings Const. L.Q. at 104, quoting
Developments in the LawBThe Interpretation of State
Constitutional Rights, 95 Harv. L. Rev. 1324, 1357 (1982).
Under this approach, this court will Alook first to the federal
constitution, and only if federal law provides no relief turn to the
-23-
state constitution to determine whether a specific criterionBfor
example, unique state history or state experienceBjustifies
departure from federal precedent.@ 28 Hastings Const. L.Q. at
104. To avoid confusing this court=s approach with the very
broad definition of the interstitial approach adopted by some
courts, we shall refer to it, for lack of a better term, as our
Alimited lockstep approach.@
States applying the interstitial or criteria approach have
adopted various criteria. New Jersey courts, for example, will
look to the textual language (whether there is any significant
difference between the phrasing of the state and federal
provisions), the legislative history of the state constitutional
provision, preexisting state law, state traditions, and public
attitudes. See State v. Hunt, 91 N.J. 338, 363-68, 450 A.2d
952, 965-67 (1982) (concluding that with respect to telephone
billing records, the state constitution did provide greater privacy
rights than the federal constitution).
The criteria adopted by this court in Tisler are somewhat
more limited:
AWe must find in the language of our constitution, or in
the debates and the committee reports of the
constitutional convention, something which will indicate
that the provisions of our constitution are intended to be
construed differently than are similar provisions in the
Federal Constitution, after which they are patterned.@
Tisler, 103 Ill. 2d at 245.
See also 28 Hastings Const. L.Q. at 105 (noting that the
criteria used to decide when a departure from lockstep is
justified Aneed not be uniform from jurisdiction to jurisdiction,@
and using the criteria formulated in Tisler and cited in DiGuida
as an example), citing People v. DiGuida, 152 Ill. 2d 104
(1992).
In Krueger, without expressly stating that we were adopting
additional criteria, we nevertheless found that state tradition
and preexisting state law, as set out in Brocamp, necessitated
the application of the state exclusionary rule, even though no
remedy for the underlying constitutional violation was required
under the fourth amendment. Similarly, in Washington, we
-24-
looked to our state=s traditions and values to determine that
denial of a new trial on the basis of evidence of actual
innocence would be fundamentally unfair and would shock the
conscience. Washington, 171 Ill. 2d at 487-88.
Defendant calls our attention to decisions of the high courts
of several of our sister states, in which the strict lockstep
doctrine has been rejected. In State v. Russell, 477 N.W.2d
886, 889 n.3 (Minn. 1991), the Minnesota Supreme Court
employed a more stringent standard of review than mere
rational basis in its equal protection analysis under the state
constitution, although the Astate constitution embodies
principles of equal protection synonymous to the equal
protection clause of the Fourteenth Amendment.@
In State v. Sullivan, 348 Ark. 647, 649-52, 74 S.W.3d 215,
217-18 (2002), Arkansas= highest court declined to follow the
decision of the United States Supreme Court in Whren v.
United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769
(1996), and held, as a matter of state constitutional law, that a
pretexual arrest is unreasonable police conduct warranting
application of the exclusionary rule. The Arkansas court noted
that the wording of the state search and seizure provision and
the fourth amendment=s search and seizure provision are
Avirtually identical@ and that in some contexts, it had interpreted
the words in lockstep. Sullivan, 348 Ark. at 650-51, 74 S.W.3d
at 217-18. However, the court noted that in other contexts it
would Aprovide more protection under the Arkansas
Constitution than that provided by the federal courts.@ Sullivan,
348 Ark. at 652, 74 S.W.3d at 218. The Apivotal inquiry in this
regard@ was Awhether this court has traditionally viewed an
issue differently than the federal courts.@ Because the
Arkansas court had Aconsidered pretextual arrests to be
unreasonable for over twenty years,@ the remedy of application
of the exclusionary rule was proper. Sullivan, 348 Ark. at 652,
74 S.W.3d at 218-19. We note that this result is not unlike this
court=s decision in Krueger, in which a long-standing state
tradition mandated application of the exclusionary rule.
Finally, in State v. Gomez, 122 N.M. 777, 932 P.2d 1
(1997), the issue was whether a warrantless search of a
parked car and its contents, performed after the arrest of the
-25-
car=s owner, required a particularized showing of exigent
circumstances to be permissible under the state constitution.
Gomez, 122 N.M. at 780-81, 932 P.2d at 4-5. The Supreme
Court of New Mexico rejected the primacy approach and
specifically adopted the interstitial approach to state
constitutional interpretation because:
A >[w]hen federal protections are extensive and well-
articulated, state court decisionmaking that eschews
consideration of, or reliance on, federal doctrine not only
will often be an inefficient route to an inevitable result,
but also will lack the cogency that a reasoned reaction
to the federal view could provide, particularly when
parallel federal issues have been exhaustively
discussed by the United States Supreme Court and
commentators.= @ Gomez, 122 N.M. at 783, 932 P.2d at
7, quoting 95 Harv. L. Rev. at 1357.
The New Mexico court found that the interstitial approach
effectively advanced the goal of preserving national uniformity
in the development and application of the fundamental rights
guaranteed by both the state and federal constitutions. Gomez,
122 N.M. at 784, 932 P.2d at 8.
In sum, on the basis of the scholarly literature, the practices
of other states, and public policy, defendant and his amici
argue for abandonment of the limited lockstep approach taken
by this court in the past and for adoption of the primacy
approach, under which this court would begin to write on an
essentially blank slate a jurisprudence of state constitutional
law without regard to federal decisional law except, perhaps, as
persuasive authority. See 28 Hastings Const. L.Q. at 106-08
(describing the process of primary state constitutional
analysis).
This argument implicates the principle of stare decisis,
which Aexpresses the policy of the courts to stand by
precedents and not to disturb settled points.@ Neff v. George,
364 Ill. 306, 308-09 (1936). Thus, we have expressed our
agreement with the United States Supreme Court=s
pronouncements on this matter: A >Adhering to precedent Ais
usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than it be
-26-
settled right.@ [Citation.]= @ People v. Jones, 207 Ill. 2d 122, 134
(2003), quoting Payne v. Tennessee, 501 U.S. 808, 827, 115
L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609 (1991), quoting
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 76 L.
Ed. 815, 823, 52 S. Ct. 443, 447 (1932).
In the end, we reaffirm our commitment to limited lockstep
analysis not only because we feel constrained to do so by the
doctrine of stare decisis, but because the limited lockstep
approach continues to reflect our understanding of the intent of
the framers of the Illinois Constitution of 1970. This court=s
jurisprudence of state constitutional law cannot be predicated
on trends in legal scholarship, the actions of our sister states, a
desire to bring about a change in the law, or a sense of
deference to the nation=s highest court. See Tisler, 103 Ill. 2d at
255 (Ward, J., concurring) (noting that if the court were to stray
from established principles of constitutional construction Acritics
not unreasonably would declare it judicial arrogance for courts
to say that their power to construe constitutions was limited
only by the restraints courts might impose upon themselves@).
This court=s jurisprudence of state constitutional law is not
affected by trends in legal scholarship; it is not governed by the
actions of our sister states; it is not influenced by a desire to
bring about change in the law or by a sense of deference to the
nation=s highest court. Rather, our choice of a rule of decision
on matters governed by both the state and federal constitutions
has always been and must continue to be predicated on our
best assessment of the intent of the drafters, the delegates,
and the votersBthis is our solemn obligation.
In keeping with this obligation, and based on its
understanding of the intent of the drafters, this court adopted a
limited lockstep approach in Tisler and modified it in Krueger
and Washington to allow consideration of state tradition and
values as reflected by long-standing state case precedent. This
limited lockstep approach is not a surrender of state
sovereignty or an abandonment of the judicial function. It is,
instead, based on the premise that the drafters of the 1970
constitution and the delegates to the constitutional convention
intended the phrase Asearch and seizure@ in the state
-27-
document to mean, in general, what the same phrase means in
the federal constitution.
Application of the Limited Lockstep Doctrine
Defendant argues that, notwithstanding the United States
Supreme Court=s interpretation of the search and seizure
clause of the fourth amendment, this court should consider a
canine sniff to be a Asearch,@ within the meaning of article I,
section 6. He observes, correctly, that state courts are free to
independently construe their state constitutions to provide
more protection than the federal constitution. He offers
decisions from the courts of our sister states that have imposed
a requirement of reasonable, articulable suspicion of criminal
activity before a dog sniff may be conducted.
In State v. Carter, 697 N.W.2d 199, 210 (Minn. 2005), the
Supreme Court of Minnesota held that a dog sniff of a self-
storage unit was a search within the meaning of the article I,
section 10, of the Minnesota Constitution. This provision is
virtually identical to the fourth amendment (see Minn. Const.,
art. 1, '10), but under Minnesota law, decisions of the United
States Supreme Court interpreting the language are merely
persuasive, not authoritative. Carter, 697 N.W.2d at 210.
The Supreme Court of Pennsylvania ruled in
Commonwealth v. Johnston, 515 Pa. 454, 466, 530 A.2d 74,
79 (1987), that although a dog sniff of the outside of a storage
locker was not a search for fourth amendment purposes, it
nevertheless violates state law unless the police are Aable to
articulate reasonable grounds for believing that drugs may be
present in the place they seek to test,@ and Athe police are
lawfully present in the place where the canine sniff is
conducted.@ Under this holding, the police are not permitted to
use a narcotics-detection dog or Aany other crime detection
device, at random and without reason.@ Johnston, 515 Pa. at
465, 530 A.2d at 79. The wording of article I, section 8, of the
Pennsylvania Constitution is also almost identical to that of the
fourth amendment. See Pa. Const., art. 1, '8.
Finally, defendant cites McGahan v. State, 807 P.2d 506
(Alaska App. 1991), another case in which a state court held
-28-
that its state constitution requires police officers to have
reasonable suspicion before conducting a warrantless canine
sniff of the exterior of a warehouse. A previous appellate court
decision in that state had held that a canine sniff of luggage
was a search under the Alaska Constitution. McGahan, 807
P.2d at 509, citing Pooley v. State, 705 P.2d 1293, 1311
(Alaska App. 1985). Again, the language of article 1, section 14
of the Alaska Constitution tracks the language of the fourth
amendment. See Alaska Const., art. 1, '14.
In each of these cases, a state court construed a state
constitutional provision that does not differ in any significant
respect from the fourth amendment to reach the result urged
by defendant. However, in light of our continued adherence to
the lockstep doctrine, albeit with some room for flexibility, these
cases do not persuade us to construe the search and seizure
clause of our constitution any more broadly than the search
and seizure clause of the fourth amendment.
We further conclude that defendant has not made a case
for an exception to the lockstep doctrine. Nothing in the
language of article I, section 6, or in the history of the
constitutional debates suggests an intent that the use of trained
dogs by the police be considered an unreasonable search or
seizure. Indeed, the drafters were no doubt aware of a long
history of police use of trained dogs for a variety of purposes,
from search and rescue to the tracking of both lost children and
fleeing felons.
Despite defendant=s arguments that the people of the State
of Illinois will be best served by an expansive reading of the
search and seizure clause of our constitution and by insulating
Apro-defense@ decisions from further review and possible
reversal, we note that the people of this state have a stake in
both sides of this debate. Indeed, this prosecution was brought
in the name of the People of the State of Illinois, who are well
served when law enforcement officers are able to detect the
presence of illegal narcotics and to arrest those who violate the
law. The people are also well served when law enforcement
officers and other state actors are constrained from intruding
upon the privacy of individuals.
-29-
We conclude that the search and seizure clause of article I,
section 6, of the state constitution, as construed under our
limited lockstep approach, strikes the proper balance between
protecting the people from unreasonable intrusion by the state
and providing the people with effective law enforcement. We
will not depart from the intent of the framers of the Illinois
Constitution of 1970 or the understanding of voters who
adopted itBto the extent we are able to discern it from the
language used, the committee comments, and the debateBto
tip the balance in favor of expanding the scope of the right to
be free from unreasonable searches and seizures that is
already guaranteed by the fourth amendment. The expansion
of the protections guaranteed by the state constitution can be
brought about by amending the constitution or by the
enactment of statutes by the General Assembly. Such
expansion of rights, however, is not the function of this court.
We comment, briefly, on the assertions made by defendant
and his amici regarding the potential for abuse and racial
profiling in the use of police dogs. These concerns, while
weighty, are not at issue here. Further, such problems, where
they exist, are not to be remedied by finding the reasonable
use of canines for the purpose of detection of contraband
unconstitutional under the search and seizure clause.
Dog Sniffs as a Violation of the Privacy Clause
Article I, section 6, of the Illinois Constitution of 1970, in
addition to prohibiting unreasonable searches and seizures,
prohibits Aunreasonable *** invasions of privacy or interceptions
of communications by eavesdropping devices or other means.@
Ill. Const. 1970, art. I, '6. The additional language Aexpands
upon the individual rights which were contained in Section 6 of
Article II of the 1870 Constitution and the guarantees of the
Fourth and Fourteenth Amendments to the United States
Constitution.@ ILCS Ann., Ill. Const. 1970, art. I, '6,
Constitutional Commentary, at 522 (Smith-Hurd 1993). Further,
the protection against unreasonable invasions of privacy Ais
stated broadly,@ and A[n]o definition of types of privacy@
intended to be protected Ais offered.@ ILCS Ann., Ill. Const.
1970, art. I, '6, Constitutional Commentary, at 522 (Smith-Hurd
-30-
1993). This language was recommended to the Constitutional
Committee by the Bill of Rights Committee, accompanied by a
committee report stating:
AIt is doubtless inevitable that any person who
chooses to enjoy the benefits of living in an organized
society cannot also claim the privacy he would enjoy if
he were to live away from the institutions of government
and the multitudes of his fellow men. It is probably also
inevitable that infringements on individual privacy will
increase as our society becomes more complex, as
government institutions are expected to assume larger
responsibilities, and as technological developments
offer additional or more effective means by which
privacy can be invaded. In the face of these conditions,
the Committee concluded that it was essential to the
dignity and well being of the individual that every person
be guaranteed a zone of privacy in which his thoughts
and highly personal behavior were not subject to
disclosure or review. The new provision creates a direct
right to freedom from such invasions of privacy by
government or public officials.@
The search and seizure provision of article I, section 6, was
intended to add Anothing new or no new concepts.@ 3
Proceedings 1523 (comment of Committee Member Dvorak).
The clause creating an additional right to privacy, however,
was added to article I, section 6, in response to a concern that
the government might use newly available technology to
develop Aa general information bank@ that would collect and
monitor personal information. 3 Proceedings 1525. In response
to a delegate=s question about the sorts of invasions of privacy
that would fall within the scope of the privacy clause, a
committee member gave the example of a governmental
employer creating a peephole into a women=s washroom to
observe an employee suspected of theft. AThis could be
considered an invasion of one=s privacy.@ 3 Proceedings 1530.
The delegates considered an amendment from the floor
that would have stricken the privacy clause from article I,
section 6. During the debate on this amendment, the chairman
of the Bill of Rights Committee commented:
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AWe recognize in our report that in this kind of
crowded, complicated world that there are necessarily a
lot of invasions of privacyBthat some of those invasions
are reasonable. All we are saying, without spelling out in
detail, is that a halt ought to be called somewhere to
these invasions of privacy. The individual ought not to
be completely at the mercy of the state. *** And the
purpose obviously of this provision is to cover those
situations that aren=t covered by the other parts of the
proposed section 6.@ (Emphasis added.) 3 Proceedings
1535 (comment of Chairman Gertz).
The chairman offered the example of devices that could
Apenetrate walls and can view what=s going on@ inside a
person=s home, revealing Abedtime intimacies and private
conversations,@ as the kind of unreasonable invasion of privacy
that should be prohibited. 3 Proceedings 1535. The
amendment failed and the privacy clause became a part of our
state constitution.
Defendant argues that a canine sniff invades the zone of
privacy guaranteed by the privacy clause of article I, section 6,
and offends the dignity and well-being of the subject of the
sniff. Thus, he argues that the privacy clause should be
interpreted by this court to require the existence of Aspecific
and articulable facts@ suggesting drug activity before a canine
sniff can be conducted during a routine traffic stop. Defendant
asserts that this court=s reasoning in Caballes I was correct,
erring only in that it was based on a fourth amendment analysis
rather than on an analysis of article I, section 6. Specifically, he
argues that the constitutional commentary indicates the
drafters= intent to create a zone of personal privacy free from
disclosure or review and that a canine sniff subjects a citizen=s
behavior to disclosure and review, in violation of the clause. He
does not, however, describe how an individual=s private
behavior is revealed when his vehicle is circled by a police
officer and a trained narcotics-detection dog. He further asserts
that a canine search during at traffic stop Acasts a pall of
suspicion over innocent people.@
Amicus ISBA suggests that the transcript of the
proceedings of the constitutional convention reveals the
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drafters= intent to provide greater protections under the privacy
clause than are guaranteed under the search and seizure
clauses of the state and federal constitutions. Amicus ACLU
claims that this court Ahas consistently applied the Privacy
Clause to more sophisticated techniques that allow the State to
gather and analyze data not available by employing ordinary
unenhanced human sensory capacities.@ Amicus ACLU states
that this court has Acreated a false dichotomy between search
and seizure claims and privacy claims,@ which is Ais
unnecessary and too broad.@ The ACLU also contends that this
dichotomy makes the privacy clause Aa meaningless nullity in
all criminal contexts,@ because this court analyzes any
investigative device or technique that invades privacy interests
under the search and seizure clause rather than under the
privacy clause.
The State responds that the privacy clause is not implicated
in the present case because this court=s previous decisions
dictate that the police conduct at issue should be analyzed only
under the search and seizure clause. Further, the State argues
that if this court were to apply the privacy clause in the context
of a traffic stop, defendant had no reasonable expectation of
privacy in odors emanating from his vehicle, even if those
odors were not detectable by an officer without the assistance
of a trained dog.
Our analysis must begin with this court=s decision in In re
May 1991 Will County Grand Jury, 152 Ill. 2d 381 (1992). At
issue in Will County Grand Jury were grand jury subpoenas
ordering two individuals, against whom no charges had been
filed, to appear in a lineup and to submit fingerprints, palm
prints, and samples of blood, head hair, and pubic hair. Will
County Grand Jury, 152 Ill. 2d at 385. This court noted that
A[e]ven before the adoption of the 1970 Constitution,@ its
decisions had provided protection for individual privacy rights in
books and records. Will County Grand Jury, 152 Ill. 2d at 391.
Just as a person has a reasonable expectation that his private
records will not be exposed to public view, he has a similarly
reasonable expectation Athat he will not be forced to submit to
a close scrutiny of his personal characteristics, unless for a
valid reason.@ Will County Grand Jury, 152 Ill. 2d at 391-92.
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This court concluded, therefore, that a grand jury=s ability to
gather such evidence implicated not only the fourth
amendment but also the privacy clause of article I, section 6, of
the state constitution. Will County Grand Jury, 152 Ill. 2d at
389-91.
Once the right to privacy under article I, section 6, is
established, the court must determine whether the state=s
invasion of individual privacy is reasonable. In the context of a
grand jury investigation, reasonableness is determined by
balancing Athe interest of the individual in maintaining his
privacy against the interest of the public in preserving the
effectiveness of the grand jury.@ Will County Grand Jury, 152
Ill. 2d at 392. Under this analysis, a grand jury may not
subpoena documents unless they are relevant to the
investigation. Will County Grand Jury, 152 Ill. 2d at 393. A
grand jury seeking physical evidence of a noninvasive nature,
such as requiring an individual to appear in a lineup or to
submit to fingerprinting, must make Asome showing of
individualized suspicion as well as relevance.@ Will County
Grand Jury, 152 Ill. 2d at 393. The taking of hair samples,
however, deserves greater scrutiny. The taking of hair samples
from an individual=s head Ais more of an intrusion into individual
privacy than is the direction to appear in a lineup or to provide
fingerprints.@ Will County Grand Jury, 152 Ill. 2d at 399.
Although head hair is a physical characteristic observable by
the public, an individual Adoes not ordinarily have the
expectation that others will cut, pull or comb his hair without his
permission, and thus he has a greater expectation of privacy in
keeping his hair intact than he does in simply having it
observed.@ Will County Grand Jury, 152 Ill. 2d at 399. The
taking of hair samples Adiminishes the body@ of the individual,
Aalbeit to a small degree.@ Will County Grand Jury, 152 Ill. 2d at
399. Thus, a subpoena for the production of samples of head
hair Aunsupported by probable cause, is an unreasonable
violation of the right to privacy protected by the Illinois
Constitution.@ Will County Grand Jury, 152 Ill. 2d at 399. With
regard to samples of pubic hair, the violation of the right to
privacy is even more clear. The pubic area Ais normally hidden
from the view of others,@ and the Ademand for pubic hair
-34-
represents a considerable intrusion into personal privacy,@
which must be justified by a showing of probable cause. Will
County Grand Jury, 152 Ill. 2d at 395. Our decision in Will
County Grand Jury thus established a continuum of privacy
protectionsBfrom mere relevance, to relevance plus
individualized suspicion, to probable causeBdepending on the
degree of intrusiveness of the grand jury=s inquiry.
In the wake of Will County Grand Jury, the privacy clause of
article I, section 6, has been invoked in various contexts. In
one group of cases, this court has applied the two-part analysis
of Will County Grand Jury to determine whether the privacy
clause is implicated in the particular context of the claim and,
then, if necessary, gone on to consider the reasonableness of
the invasion. The two contexts in which this analysis has been
undertaken have involved either the State=s effort to obtain
access to personal documents and records or the information
contained therein or to engage in Aclose scrutiny of [the]
personal characteristics@ of an individual. As we noted in Will
County Grand Jury, Athe individual=s privacy interest in his
physical person, as well as his privacy interest in his
documents, must be protected.@ Will County Grand Jury, 152
Ill. 2d at 391-92.
In the other group of cases, although a party argued that
the privacy clause was implicated, this court determined that
the situation should instead be examined entirely under
traditional search and seizure principles. These cases have not
involved either the exposure of personal information or close
scrutiny of personal characteristics. These are the cases that
amicus ACLU describes as having created Aa false dichotomy
between search and seizure claims and privacy claims.@
The first group of cases includes King v. Ryan, 153 Ill. 2d
449 (1992), Fink v. Ryan, 174 Ill. 2d 302 (1996), Kunkel v.
Walton, 179 Ill. 2d 519 (1997), Best v. Taylor Machine Works,
179 Ill. 2d 367 (1997), Burger v. Lutheran General Hospital,
198 Ill. 2d 21 (2001), and People v. Cornelius, 213 Ill. 2d 178
(2004).
In King, this court declared unconstitutional a statute
authorizing the chemical testing of the blood, breath, or urine of
an individual who had been in control of a vehicle involved in
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an accident causing personal injury or death. The flawed
statute required only probable cause to believe that the driver
had been at fault, in whole or in part, for the accident. There
was no requirement that there be even the slightest indication
the driver was intoxicated. Refusal to submit to the test
resulted in suspension of the individual=s driver=s license. King,
153 Ill. 2d at 455-56. This court concluded that the statute
violated the fourth amendment because it failed to require
probable cause of intoxication before the police could gather
such evidence for use in a possible criminal proceeding. King,
153 Ill. 2d at 458-64. This court then considered the plaintiff=s
additional argument that the statute violated the privacy clause
of article I, section 6, of the Illinois Constitution of 1970.
Referring to our decision in Will County Grand Jury, this court
stated that Arequiring a urine sample is more intrusive than
cutting a person=s hair@ and Aa chemical analysis of an
individual=s breath is at least as intrusive as requiring a hair
sample for testing.@ King, 153 Ill. 2d at 464. It followed,
therefore, that the chemical tests the statute purported to
authorize could not be conducted absent probable cause to
believe the individual had committed a crime. King, 153 Ill. 2d
at 464-65.
Subsequently, the legislature enacted a modified version of
the invalidated statute, authorizing the testing of blood, breath,
or urine of the driver of a vehicle involved in a personal injury
or fatal accident, but only if the individual is arrested. In Fink,
this court determined that the successor statute passed
constitutional muster under both the fourth amendment and the
state constitution. Under the successor statute, no driver can
be chemically tested unless he has been arrested, based on
probable cause, for a nonequipment violation of the Vehicle
Code. Fink, 174 Ill. 2d at 315. With respect to the privacy
clause of article I, section 6, this court concluded that, as a
result, the Adriver=s zone of privacy is not unconstitutionally
invaded@ when he is chemically tested pursuant to the statute.
Fink, 174 Ill. 2d at 315.
In Kunkel, this court considered the constitutionality of
section 2B1003(a) of the Code of Civil Procedure (735 ILCS
5/2B1003(a) (West 1994)), which had been amended as part of
-36-
the Civil Justice Reform Amendments of 1995 (Pub. Act 89B7,
eff. March 9, 1995). After concluding that amended section
2B1003(a) violated the separation of powers clause of article II,
section 1, of the Illinois Constitution of 1970 (Kunkel, 179 Ill. 2d
at 536-37), this court went on to consider an alternate basis for
declaring the amended statute unconstitutionalBthat it violated
Athe right to privacy expressly set forth in our state
constitution.@ Kunkel, 179 Ill. 2d at 537. The privacy clause of
article I, section 6, was implicated because the amended
statute provided that any party alleging bodily injury or disease
was deemed to waive any privilege of confidentiality with his or
her health-care providers. The amended statute further
provided that upon the request of any party, the party claiming
such injury or disease shall sign and deliver consent forms
authorizing his or her health-care providers to disclose medical
records to the requesting party and to engage in ex parte
conferences with the requesting party=s attorney. Kunkel, 179
Ill. 2d at 524-25. This court noted that the Aconfidentiality of
personal medical information is, without question, at the core of
what society regards as a fundamental component of individual
privacy.@ Kunkel, 179 Ill. 2d at 537. Indeed, such information is
generally contained in the very type of personal record or
document that this court protected even prior to the enactment
of the 1970 constitution. See Will County Grand Jury, 152 Ill.
2d at 391. Such information is no less deserving of protection
merely because it may be obtained directly from a health-care
provider rather than from confidential medical records.
Citing the earlier decision in Will County Grand Jury, this
court stated that article I, section 6, forbids unreasonable
invasions of privacy and that, A[i]n the context of civil discovery,
reasonableness is a function of relevance.@ Kunkel, 179 Ill. 2d
at 538. Amended section 2B1003(a) was held unconstitutional
because it permitted Adisclosure of highly personal medical
information having no bearing on the issues in the lawsuit@ and,
as such, permitted Aa substantial and unjustified invasion of
privacy.@ Kunkel, 179 Ill. 2d at 539. See also Best v. Taylor
Machine Works, 179 Ill. 2d 367 (1997) (declaring the Civil
Justice Reform Amendments of 1995 unconstitutional in toto;
noting that the right to be free from unreasonable governmental
-37-
intrusions upon privacy of article I, section 6, is supplemented
by the constitutional right to a certain remedy for invasions of
privacy in article I, section 12, of the Illinois Constitution of
1970).
Several years thereafter, the plaintiff in a medical
malpractice action challenged the constitutionality of portions of
the Hospital Licensing Act (210 ILCS 85/1 et seq. (West 2000))
on separation of powers, privacy, and special legislation
grounds. Burger v. Lutheran General Hospital, 198 Ill. 2d 21
(2001). The challenged provisions permit medical staff
members to communicate with a hospital=s legal staff regarding
the care of a patient who files a malpractice action, even if the
staff member is not a party to the action. In addition, the statute
provides that hospital medical personnel who act in good faith
in providing information about a patient=s care to hospital legal
staff are protected from civil or criminal liability. 210 ILCS
85/6.17(d), (e) (West 2000). We rejected the plaintiff=s
contention that these provisions violate the patient=s right to
privacy under article I, sections 6 and 12, and under this court=s
decisions in Kunkel and Best. Although the privacy clause is
most certainly implicated by these provisions in the Hospital
Licensing Act, only unreasonable invasions of privacy are
constitutionally forbidden. Burger, 198 Ill. 2d at 52. We
concluded that the Alimited intrahospital communications
allowed pursuant to subsections (d) and (e) in order to assure
quality patient care do not unreasonably invade a hospital
patient=s expectation of privacy.@
This court first addressed a privacy claim based on article I,
section 6, in the context of a criminal prosecution in People v.
Cornelius, 213 Ill. 2d 178 (2004). The defendant, who was
charged with failure to register as a sex offender, challenged
the constitutionality of the Sex Offender Registration Act (730
ILCS 150/1 et seq. (West 2002)), and the Sex Offender and
Child Murderer Community Notification Law (730 ILCS 152/101
et seq. (West 2002)) on privacy, due process, equal protection,
and ex post facto grounds. Relying on the privacy clause of
article I, section 6, of the Illinois Constitution of 1970, he
argued that while the registration requirement itself did not
violate his right to privacy, the Awholesale dissemination@ of his
photograph and other information via the Internet was
unreasonable. Cornelius, 213 Ill. 2d at 192. Such claims
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require a twofold inquiry. First, the court must determine
whether the party challenging a statute on privacy grounds has
a reasonable expectation of privacy in the information he seeks
to protect and, second, we must determine whether the statute
unreasonably invades that expectation of privacy. Cornelius,
213 Ill. 2d at 193-94. We concluded that the defendant=s claim
failed the first part of the twofold inquiry. The defendant did not
have a cognizable privacy interest in information that was
already a matter of public record in the pre-Internet version of
the sex offender registry. Although accessibility via the Internet
may have made the information more widely available to the
public, the information was not private and, therefore, did not
come within the scope of the protection provided by the privacy
clause of the Illinois Constitution. Cornelius, 213 Ill. 2d at 197,
quoting People v. Logan, 302 Ill. App. 3d 319, 334 (1998).
Further, unlike the uncharged targets of the grand jury
investigation in Will County Grand Jury, the defendant had
been convicted of aggravated criminal sexual abuse. The
conduct that resulted in his conviction Alowered the privacy bar
and culminated in a public record that contains the challenged
information.@ Cornelius, 213 Ill. 2d at 198.
This line of cases employs a two-part framework for the
consideration of a claim that a state statute or other state
action violates the privacy clause of article I, section 6, of the
Illinois Constitution of 1970. Cases in which the privacy clause
has been found to apply have involved either private records or
documents or information of the type typically contained therein
or an invasion of the actual physical body of the person. None
of these cases have involved a claim that an individual=s
constitutionally protected zone of privacy was violated by an
investigative technique employed by the police that did not
involve the taking of physical evidence from the body of the
individual. Further, none of these cases involved police conduct
during a routine traffic stop or other routine encounter with a
member of the public.
Two cases involving just such claims are Mitchell, 165 Ill.
2d 211, and Bolden, 97 Ill. 2d 166. In Mitchell, 165 Ill. 2d at
216, this court applied the Supreme Court=s decision in
Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113
S. Ct. 2130 (1993) (holding that the Aplain feel@ doctrine does
not offend the fourth amendment), to conclude that the Aplain
-39-
touch@ doctrine comports with the search and seizure clause of
article I, section 6, of the state constitution. We then turned to
defendant=s argument that a pat-down search falls within the
scope of the right to privacy clause of article I, section 6, rather
than within the scope of the search and seizure clause,
because it involves a police officer laying hands on the body of
a person. Mitchell, 165 Ill. 2d at 219. We recognized a certain
Acommonality of purpose@ shared by the three clauses of article
I, section 6, but noted that A[n]otwithstanding that commonality,
each clause differs with respect to the conduct it was designed
to prohibit.@ Mitchell, 165 Ill. 2d at 220. Further, although the
touching of a person=s body during a Terry stop and search
Atriggers right-to-privacy concerns generally, such conduct is
more particularly a search and seizure issue.@ Mitchell, 165 Ill.
2d at 220. After examining the history of the privacy clause, we
concluded that Athe drafters intended no change in the
categorization of conduct traditionally covered by the search
and seizure clause.@ Mitchell, 165 Ill. 2d at 221. We held that
the conduct at issue, a pat-down search by the police,
Acontinues to fall within the bounds of the search and seizure
clause,@ and we declined to extend the reasoning of Will
County Grand Jury to reach it.
In Bolden, the defendant voluntarily appeared at the police
station and participated in a lineup. He was identified by the
witness and the lineup identification was admitted at trial, over
defendant=s objection that his constitutional rights were violated
by the detectives= refusal to allow defense counsel to be
present with the witness during the lineup. We rejected the
defendant=s fifth and sixth amendment claims (Bolden, 197 Ill.
2d at 175-77), and turned to his argument that refusal to allow
his lawyer to observe the witness during the lineup converted
his voluntary appearance into an involuntary seizure in violation
of the fourth amendment (Bolden, 197 Ill. 2d at 177-78). He
also argued that, even if he had not been seized for fourth
amendment purposes, the police conduct nevertheless violated
both the search and seizure clause and the privacy clause of
article I, section 6, of the Illinois Constitution of 1970. We
observed that the defendant had failed to distinguish between
the two clauses and noted that A[w]hile the privacy clause of
article I, section 6, possesses a unique constitutional history, it
is of no assistance here to the defendant, for it is a separate
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guarantee and does not serve to transform the nearby search
and seizure clause into a source of state constitutional rights
that are more extensive than those conferred by the fourth
amendment.@ Bolden, 197 Ill. 2d at 179. Finally, we determined
that the defendant had not been seized because his freedom to
leave the police station was unrestricted until the lineup was
concluded and he was placed under arrest. Bolden, 197 Ill. 2d
at 181-82.
Reading these two groups of cases in conjunction, it is
evident that the privacy clause of article I, section 6, may be
implicated in the context of a criminal investigation. Whether
physical evidence obtained from the body of the defendant is
sought by a grand jury or obtained by the police during an
investigation, the state=s intrusion into the individual=s bodily
zone of privacy must be reasonable. With regard to
noninvasive physical evidence, such as fingerprints, voice
exemplars, and handwriting samples, a showing of relevance
and of individualized suspicion must be made. People v.
Watson, 214 Ill. 2d 271, 283 (2005), quoting Will County Grand
Jury, 152 Ill. 2d at 393. When the state seeks physical
evidence of a more intrusive nature, such as head, facial, or
pubic hair, Awhere the compelled production would constitute a
search or seizure under the fourth amendment,@ probable
cause is required. Watson, 214 Ill. 2d at 283.
The privacy clause is also implicated if, in the course of a
criminal investigation, the state seeks access to medical or
financial records that are within the scope of the protections of
article I, section 6. See, e.g., Will County Grand Jury, 152 Ill.
2d at 396, citing with approval, People v. Jackson, 116 Ill. App.
3d 430, 434-35 (1983) (article I, section 6, assures citizens of a
right of privacy in their bank records). In the present case,
we are asked to determine whether having an officer circle a
vehicle in the company of a trained narcotics-detection dog,
while the dog sniffs the air in an effort to detect the presence of
contraband, invades the zone of privacy established by article
I, section 6. Defendant would have us treat the dog sniff as
more like the taking of a physical specimen for analysis (as in
Will County Grand Jury) than the performance of a routine pat-
down (as in Mitchell) because it involves the government=s use
of a Adevice@ that enhances ordinary human sensory
perceptions.
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The State responds that the dog sniff took place in the
course of a routine traffic stop and is properly analyzed under
traditional search and seizure principles, without any need to
consider the privacy clause.
A dog sniff of an individual or of his vehicle or luggage does
not reveal private medical information (i.e., the presence
prescription medications for the treatment of psychiatric
disorders or sexually transmitted diseases), so it does not
implicate the concerns at issue in Kunkel. A dog sniff will not
reveal the contents of diaries or love letters; it will not reveal
the individual=s choice of reading materials, whether religious,
political, or pornographic; it will not reveal sexual orientation or
marital infidelity. Thus, it does not infringe on the zone of
personal privacy that the drafters intended to protect. Properly
conducted, a dog sniff will not result in the slightest touching of
the individual, so the privacy concerns at issue in Will County
Grand Jury, King, and Fink, are not implicated.
Indeed, once the dog sniff has been conducted, no search
will ensue unless the dog alerts to the scent of illegal narcotics.
Thus, the image suggested by amicus ACLU of the police
searching an individual=s luggage by the side of the road and
exposing private matters to public view will not occur unless a
dog sniff has revealed the presence of illegal narcotics. A
person who chooses to transport contraband in his vehicle,
knowing that its presence may be detected by a canine unit if
he commits a traffic violation, has taken the risk of exposure
during the ensuing search of whatever private materials he
may have with him in the vehicle.
We conclude that the dog sniff of a vehicle does not
constitute an invasion of privacy. It is, in fact, even less
invasive or intrusive than the routine pat-down which, after all,
involves the officer=s physical contact with the clothing of the
individual. Thus, the present case falls within the line of cases
represented by Mitchell and Bolden and must be analyzed
solely as a search and seizure issue. Given our limited
lockstep approach to search and seizure analysis, the answer
is clear. The sniff did not violate defendant=s right to be free
from unreasonable search and seizure. See Caballes, 543 U.S.
at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838 (Athe use of a
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well-trained narcotics-detection dogBone that >does not expose
noncontraband items that otherwise would remain hidden from
public view=Bduring a lawful traffic stop, generally does not
implicate legitimate privacy interests@ cognizable under the
fourth amendment), quoting United States v. Place, 462 U.S.
696, 707, 77 L. Ed. 2d 110, 121, 103 S. Ct. 2637, 2644 (1983).
Reliability of the ADevice@ Employed in a Dog Sniff
The Supreme Court has Atreated a canine sniff by a well-
trained narcotics-detection dog as >sui generis= because it
>discloses only the presence or absence of narcotics, a
contraband item.= @ Caballes, 543 U.S. at 409, 160 L. Ed. 2d at
847, 125 S. Ct. at 838, quoting Place, 462 U.S. at 707, 77 L.
Ed. 2d at 121, 103 S. Ct. at 2644. Such use of narcotics-
detection dogs by the police has been described as a Abinary
search@ or a Acontent-discriminating@ search, because it yields
only a yes-or-no answer, not an inventory of the contents of the
vehicle or container being searched. See R. Simmons, From
Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment
to Twenty-First Century Technologies, 53 Hastings L.J. 1303,
1348 (2002). In contrast, a technology or procedure that not
only discloses criminal activity, but also lawful activity, is not
content-discriminating. Use of such technology constitutes a
search and, therefore, must pass muster under the fourth
amendment. Thus, in Kyllo, 533 U.S. at 34-35, 150 L. Ed. 2d at
102, 121 S. Ct. at 2043, the Court held that the use of a
thermal-imaging device to detect the presence of marijuana
plants inside a home constituted an unlawful search. Because
the device also revealed intimate details of conduct inside the
home, such as Aat what hour each night the lady of the house
takes her daily sauna and bath,@ use of the device violated the
occupants= legitimate expectation of privacy. Kyllo, 533 U.S. at
38, 150 L. Ed. 2d at 105, 121 S. Ct. at 2045.
Defendant argues that even if this court reaffirms its
commitment to a lockstep approach and concludes that the
privacy clause of article I, section 6, does not forbid the use of
canine sniffs during routine traffic stops, this court should
address (1) the reliability of the Adevice@ used in this binary
search, and (2) if it finds the device reliable, consider whether
-43-
the duration, degree, and nature of the intrusion in this case,
coupled with all other conduct of the officers, constituted an
illegal Aseizure.@ The State responds that there is no basis for
overturning the trial court=s factual finding that the dog, Krott,
was sufficiently reliable to provide the officers with probable
cause to search the trunk of defendant=s car.
One scholar has noted that A[i]n an ideal world, law
enforcement officials would design devices that (1) only
produced a binary response when used and conveyed no other
information about the person or area searched; (2) were 100%
accurate; and (3) that only responded when the individual
possessed an itemBnarcotics, firearms, child pornography,
etc.Bthat was clearly illegal.@ 53 Hastings L.J. at 1354. Without
adopting these criteria, we consider their application to a dog
sniff.
Clearly, the first of these criteria is met. The dog either
alerts to the scent of illegal narcotics, or he does not. Even if
the dog is capable of detecting the presence of other
substances, he is not capable of communicating such
information to the officer.
With regard to the third criterion suggested by Professor
Simmons, defendant argues that a high percentage of
circulating paper currency has been contaminated by drugs
and that this circumstance leads to false positive results. If a
narcotics-detection dog alerts to the mere presence of
contaminated currency, a search will follow and private
information about the individual may be exposed. The record,
however, contains no evidence that supports either his general
argumentBthat the rate of false positive results is
unacceptableBor the specific argument that he was affected by
a false positive result. Indeed, after hearing testimony
regarding the particular dog involved in this case, the trial judge
found that the dog sniff was sufficiently reliable to establish
probable cause for the search of the trunk of defendant=s car.
This factual finding is not against the manifest weight of the
evidence.
Turning to the second of Professor Simmons= criteria,
defendant argues that the accuracy requirement cannot be
met. Again, he points to the possibility of a false positive alert
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and suggests that this court should be Asuspicious@ of all dog
sniffs for this reason. Relying on an as-yet unpublished law
review article that defendant did not append to his brief, he
proposes that in each case where the prosecutor would rely on
a binary search such as a dog sniff, the trial court should
engage in a full evaluation of the method or technique. He
analogizes this to a Daubert 1 hearing, Abut with the State Aheld
to a much higher standard@Ba standard Ahigh enough to ensure
that the binary search doctrine=s inevitable widespread
indiscriminate application does not result in overwhelming
numbers of unjustified searches of innocent subjects.@ He asks
that this matter be remanded to the trial court for an evidentiary
hearing on the accuracy of the dog-sniff technique.
Defendant=s concerns about Awidespread@ abuse of the use
of police canine units and Aoverwhelming numbers@ of innocent
subjects are pure speculation. The Supreme Court has not
established such criteria, saying only that a canine sniff is
permissible when the dog is Awell-trained.@ Caballes, 543 U.S.
at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838, quoting Place,
462 U.S. at 707, 77 L. Ed. 2d at 121, 103 S. Ct. at 2644. On
the record before us, we find no basis for concluding that the
trial court=s finding of reliability was manifestly erroneous.
Defendant also argues that by holding that a so-called
binary search is not a search for fourth amendment purposes,
the Supreme Court has merely legitimated a search based on
an ex post facto examination of what the police actually find
after the dog alerts and a full-blown search is conducted. He
contends that by following this ruling in lockstep, this court is
committing the same alleged error. As the professor upon
1
Defendant refers to the standard established by the United States
Supreme Court for the admission of scientific evidence in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113
S. Ct. 2786 (1993). In Illinois, however, the admission of expert testimony
regarding scientific evidence is governed by the standard of Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923). See Donaldson v. Central Illinois
Public Service Co., 199 Ill. 2d 63, 80 n.1 (2002) (noting that this court has
not considered adopting the new Daubert standard to replace the Frye
standard).
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whom defendant so greatly relies has noted, however, A[t]his
objection misses the point entirely; a binary search is not
constitutional because of what it does find, but because of what
it is capable of finding.@ (Emphases omitted.) 53 Hastings L.J.
at 1354, n.214.
Finally, we decline to address defendant=s last
argumentBthat he was illegally seized even if he was not
illegally searchedBbecause he devotes only two sentences to
this topic. The only authority he cites for this proposition is this
court=s now-vacated opinion in Caballes I.
CONCLUSION
Having given due consideration to the arguments of the
parties and having reviewed, in detail, the history, purpose, and
rationale of the lockstep doctrine as it has been applied in
Illinois, we reaffirm our adherence to a limited lockstep
approach to the interpretation of a provision of the Illinois
Constitution of 1970 that is identical to or entirely synonymous
with a provision of the United States Constitution. We further
hold that a dog sniff of a vehicle during a routine traffic stop
does not implicate the privacy clause of article I, section 6, of
the Illinois Constitution of 1970. Finally, we hold that the
evidence obtained as a result of the dog sniff was properly
admitted in defendant=s trial.
The judgment of the appellate court, which affirmed the
circuit court=s judgment, is affirmed.
Appellate court judgment affirmed.
JUSTICE FREEMAN, dissenting:
Today=s opinion puts to rest the confusion that has
animated our application of the Alockstep doctrine.@ As the
court explains, various methods for construing provisions of
individual state constitutions have been adopted by state
courts. One such method, the lockstep doctrine, has been
defined as follows:
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A >Under the lockstep approach, the state
constitutional analysis begins and ends with
consideration of the U.S. Supreme Court=s interpretation
of the textual provision at issue. On this approach,
federal rulings are regarded as having attained >a
presumption of correctness= from which the state should
be loathe to part. In other words, congruence with
federal decisional law is assumed to be the norm, and
deviation is for all intents and purposes impossible.= @
Slip op. at 20, quoting L. Friedman, The Constitutional
Value of Dialogue and the New Judicial Federalism, 28
Hastings Const. L.Q. 93, 102-03 (2000).
In light of the numerous times this court has deviated from
federal decisional law (see, e.g., People v. Krueger, 175 Ill. 2d
60 (1996); People v. Washington, 171 Ill. 2d 475 (1996)), it is
clear that this court has not truly followed in Alockstep@ with the
United States Supreme Court. I therefore agree with the court
when it states that Ait is an overstatement to describe our
approach as being in strict lockstep with the Supreme Court.@
Slip op. at 21-22. Like my colleagues in the majority, I believe
that the method this court has been applying throughout the
years has been a form of the Ainterstitial approach.@ As the
court explains, under this approach, the court first looks to
whether the right being asserted is protected under the federal
constitution. If it is, then the state constitutional claim is not
reached. If it is not, then the state constitution is examined. Slip
op. at 21, quoting State v. Gomez, 122 N.M. 777, 783, 932
P.2d 1, 7 (1997). This approach Aacknowledges the United
States Constitution as the basic protector of fundamental
liberties and treats the federal declaration as the lowest
common denominator in protecting those liberties.@ S. Pollock,
State Constitutions as Separate Sources of Fundamental
Rights, 35 Rutgers L. Rev. 707, 718 (1983).
A review of the instances in which this court has departed
from federal law reveals that this court has done so for reasons
that are commonly associated with this approach. A state court
utilizing the interstitial approach Amay diverge from federal
precedent for three reasons: a flawed federal analysis,
structural differences between state and federal government,
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or distinctive state characteristics.@ Gomez, 122 N.M. at 783,
932 P.2d at 7. In Krueger, the court implied strongly that it was
departing from federal law because it believed the United
States Supreme Court=s analysis to be flawed. Krueger, 175 Ill.
2d at 72-73. In Washington, the court implied that it was
necessary to recognize a constitutional basis in state habeas
corpus jurisprudence for addressing actual innocence claims
because federal law did not provide a forum for such a
claimBthis, of course, implicates the differences between the
state and federal systems. Washington, 171 Ill. 2d at 489.
Notwithstanding my agreement with the court=s conclusion
that we are not a truly Alockstep@ court, I believe this case to be
one which necessitates our divergence from federal precedent.
In my view, Justice Ginsburg=s dissent reveals several serious
flaws in the Court=s decision. She points out that the Court=s
decision Adiminishes the Fourth Amendment=s force@ by
abandoning the critical step of the Terry analysis. Illinois v.
Caballes, 543 U.S. 405, 421, 160 L. Ed. 2d 842, 855, 125 S.
Ct. 834, 845 (2005) (Ginsburg, J., dissenting, joined by Souter,
J.). Justice Ginsburg also criticizes the fact that the decision
Aundermines@ the Court=s Asituation-sensitive balancing of
Fourth Amendment interests in other contexts.@ Caballes, 543
U.S. at 423, 160 L. Ed. 2d at 856, 125 S. Ct. at 846. These
criticisms are apt and compel me to the conclusion that
divergence from the Supreme Court is necessary under the
circumstances presented at bar.
I therefore would hold that the police action in this case
violated defendant=s right against unreasonable searches
under article I, section 6, of the Illinois Constitution when,
without cause to suspect wrongdoing, they conducted a dog
sniff of his vehicle. In light of my position, I need not reach, nor
do I express any view on, the question of whether the
unreasonable invasion of privacy clause in the same section of
our constitution is implicated in this case.
JUSTICES McMORROW and KILBRIDE join in this dissent.
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