People v. Holmes , 90 N.E.3d 412 ( 2017 )

2017 IL 120407
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 120407)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DAVID HOLMES, Appellee.
Opinion filed July 20, 2017.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Burke, and Theis
concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 Defendant, David Holmes, was arrested when a Chicago police officer
observed a revolver in defendant’s waistband. After the arrest, police also
discovered that defendant lacked a Firearm Owner’s Identification (FOID) card.
Defendant was charged with four counts of aggravated unlawful use of a weapon
(AUUW). Counts I and III alleged that defendant carried a loaded, uncased,
immediately accessible firearm (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2),
(a)(3)(A) (West 2012)), and counts II and IV alleged that he did so without a FOID
card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2012)).
Subsequent to defendant’s arrest, this court issued its decision in People v. Aguilar,
holding that section 24-1.6(a)(1), (a)(3)(A), (d)(1) was facially unconstitutional
because it violated the right to keep and bear arms, as guaranteed by the second
amendment to the United States Constitution. People v. Aguilar, 2013 IL 112116,
¶ 22. The State entered a nolle prosequi on counts I and III. Defendant filed a
motion to quash his arrest and suppress evidence with respect to counts II and IV on
the ground that the arresting officer only had probable cause to believe defendant
was violating sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A), which
had been declared unconstitutional. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2),
(a)(3)(A) (West 2012). As a result, defendant argued that probable cause was
retroactively invalidated and therefore his arrest violated his right to be free from
unreasonable search and seizure under the state and federal constitutions.
¶2 After a hearing, the circuit court granted defendant’s motion. The appellate
court affirmed. 2015 IL App (1st) 141256, ¶ 40. We allowed the State’s petition for
leave to appeal, pursuant to Illinois Supreme Court Rule 315 (eff. Mar. 15, 2016).
¶3 BACKGROUND
¶4 In January 2014, defendant filed a motion to quash his arrest and suppress
evidence with respect to counts II and IV. Because the probable cause underlying
defendant’s arrest was based solely upon a violation of sections 24-1.6(a)(1),
(a)(3)(A) and 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2),
(a)(3)(A) (West 2012)), which were declared facially unconstitutional in Aguilar
after defendant’s arrest, defendant argued that the void ab initio doctrine
retroactively invalidated probable cause.
¶5 At the hearing on defendant’s motion, the arresting officer, Gabriel Barrera,
testified that on June 8, 2012, he was patrolling the 63rd Street Beach in Chicago.
Officer Barrera saw defendant lean into the passenger-side window of a vehicle to
speak to the driver. Defendant’s shirt rode up, revealing a revolver tucked into his
waistband. Officer Barrera approached defendant, asked him to place his hands on
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his head, and removed defendant’s revolver. Officer Barrera’s partner then took
defendant into custody. It was after defendant was taken into custody that Officer
Barrera learned defendant’s name and that he did not have a FOID card. Officer
Barrera had no arrest or search warrant for defendant at the time of his arrest.
Officer Barrera conceded that, before arresting defendant, he did not know any
information about defendant. Therefore, probable cause was based solely upon
defendant’s violation of the subsequently invalidated AUUW subsections.
Following Officer Barrera’s testimony, defendant argued that the arrest should be
quashed and all evidence resulting from the arrest suppressed because
“At the time, yes, the officer did have the right to place [defendant] under
arrest. He had a right to search him and recover that gun.
Post-Aguilar, Judge, he didn’t because that portion of the statute was found
to be unconstitutional. It was found to be void. It had [sic] ab initio. The point
being though now that’s no longer okay. Just somebody carrying a gun is not a
reason for officers to place him in custody and place him under arrest.”
The trial court noted:
“It might be kind of unfortunate because the officer didn’t do anything
wrong at the time. But if it is true that the statute is void ab initio then it is like it
never existed. And if it never existed it is that portion of the statute [sic] then the
officer didn’t have probable cause.”
¶6 The appellate court affirmed, explaining that its conclusion was informed by
this court’s decision in People v. Carrera, 203 Ill. 2d 1 (2002):
“[O]ur supreme court in Carrera stated that a facially invalid statute is void
ab initio. *** In other words, ‘[i]t is as though no such law had ever been
passed.’ [Citation.] ***
Based on the Carrera court’s language, we conclude the void ab initio
doctrine precludes the application of the good-faith doctrine in defendant’s
case. *** As the Carrera court explained, applying the good-faith exception to
defendant’s case would ‘run counter to *** void ab initio jurisprudence.’
[Citation.] Further, the Carrera court stated that giving ‘legal effect’ to the fact
that the prior statute existed in the defendant’s case would ‘effectively
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resurrect’ the statute ‘and provide a grace period *** during which our citizens
would have been subject to extraterritorial arrests without proper
authorization.’ ” 2015 IL App (1st) 141256, ¶¶ 29-30 (quoting People v.
Carrera, 203 Ill. 2d 1, 14, 16 (2002)).
¶7 Referencing Michigan v. DeFillippo, 443 U.S. 31 (1979), and United States v.
Charles, 801 F.3d 855 (7th Cir. 2015), the appellate court noted that, “[a]s a result
of the Illinois void ab initio doctrine, we are *** in the unique position of having to
hold that the same exact conduct could establish probable cause if a case was
brought in the federal system but not if it was brought in our state courts.” 2015 IL
App (1st) 141256, ¶ 36.
¶8 ANALYSIS
¶9 When reviewing a trial court’s ruling on a motion to quash arrest and suppress
evidence, this court applies a two-part standard of review. People v. Almond, 2015
IL 113817, ¶ 55. Great deference is afforded to the trial court’s findings of fact, and
those factual findings will be reversed only if they are against the manifest weight
of the evidence. Id. This court reviews de novo the trial court’s ultimate legal ruling
as to whether the evidence should be suppressed. Id.
¶ 10 Before this court, the State contends that (1) the void ab initio doctrine does not
retroactively invalidate an arrest made upon probable cause to believe a defendant
was violating a then-valid criminal statute and, (2) alternatively, if the void
ab initio doctrine does retroactively invalidate such an arrest, then the good-faith
exception to the exclusionary rule should apply because the statute in the instant
case is substantive in nature, in that it makes unlawful certain conduct, and does
not, by its own terms, confer unconstitutional search and seizure authority upon
police.
¶ 11 Defendant acknowledges that, at the time of his arrest, Officer Barrera had
probable cause to arrest him for carrying a loaded, uncased, immediately accessible
firearm. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012).
Defendant, however, contends that our 2002 decision in Carrera mandates strict
application of the void ab initio doctrine, which, defendant maintains, would have
the effect of retroactively invalidating probable cause and thereby incidentally
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mandating the suppression of the evidence inculpating defendant for his FOID
violation. Any other result, according to defendant, would be counter to the void
ab initio doctrine.
¶ 12 The void ab initio doctrine is a state jurisprudential principle. “When a statute
is held to be facially unconstitutional, the statute is said to be void ab initio, i.e.,
void ‘from the beginning.’ ” (Internal quotation marks omitted.) People v.
McFadden, 2016 IL 117424, ¶ 17 (quoting Perlstein v. Wolk, 218 Ill. 2d 448, 455
(2006)). “An unconstitutional law ‘confers no right, imposes no duty and affords no
protection. It is *** as though no such law had ever been passed.’ ” People v.
Gersch, 135 Ill. 2d 384, 399 (1990) (quoting People v. Schraeberg, 347 Ill. 392,
394 (1932)). “[W]here a statute is violative of constitutional guarantees, we have a
duty not only to declare such a legislative act void, but also to correct the wrongs
wrought through such an act by holding our decision retroactive.” Id. The law is
clear that a defendant cannot be prosecuted under a statute that is void ab initio. See
McFadden, 2016 IL 117424, ¶ 19. Less clear is whether the void ab initio doctrine
is meant to be given such literal interpretation as to extend its reach to probable
cause.
¶ 13 In the instant case, the appellate court concluded that this court’s decision in
Carrera dictates that probable cause based on a statute later found unconstitutional
is retroactively invalidated by operation of the void ab initio doctrine.
¶ 14 People v. Carrera
¶ 15 In Carrera, the defendant was arrested pursuant to a statute that granted police
extraterritorial arrest powers. 203 Ill. 2d at 7. Subsequent to the defendant’s arrest,
the statute was held unconstitutional because it was enacted in violation of the
single subject rule of the Illinois Constitution of 1970. People v. Reedy, 186 Ill. 2d
1, 12 (1999). Thereafter, the statute was declared void ab initio in People v.
Ramsey, 192 Ill. 2d 154, 156 (2000).
¶ 16 Before this court, the State argued (1) that the good-faith exception to the
exclusionary rule applies where police rely upon a statute later declared
unconstitutional and (2) that the exclusionary rule was inapplicable because the
police did not conduct a constitutionally unreasonable search or seizure but simply
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acted outside territorial limits without valid statutory authority to do so. Carrera,
203 Ill. 2d at 10. The State forfeited the issue of whether the exclusionary rule
applied but urged this court to still consider it because resolution of that issue must
occur prior to reaching the question of whether the good-faith exception applies. Id.
at 11.
¶ 17 A majority of this court concluded that Illinois law was settled that the
exclusionary rule applies where police effectuate an extraterritorial arrest without
appropriate statutory authority. Id. In response, the State argued that the good-faith
exception to the exclusionary rule applied because the police did not violate the
defendant’s substantive constitutional rights in effectuating the extraterritorial
arrest. Id. at 13. Acknowledging the State’s argument, the majority stated that it
was choosing “to resolve this cause on narrower grounds” because “[i]n our
estimation, the result that we reach is dictated by application of the void ab initio
doctrine.” Id. at 13-14.
¶ 18 The majority explained that “[t]he void ab initio doctrine applies equally to
legislative acts which are unconstitutional because they violate substantive
constitutional guarantees [citation] and those that are unconstitutional because they
are adopted in violation of the single subject clause of our constitution [citation].”
Id. at 14-15. The majority would not consider the State’s good-faith exception
argument, since application of “the good-faith exception would run counter to our
single subject clause and void ab initio jurisprudence—specifically, that once a
statute is declared facially unconstitutional, it is as if it had never been enacted.” Id.
at 16. The majority reasoned:
“In our estimation, to give effect to the historical fact that the amendment
existed at the time of defendant’s arrest would effectively resurrect the
amendment and provide a grace period (in this case four years between the
effective date of the amendment and the date of our opinion in Reedy finding
Public Act 89-404 unconstitutional) during which our citizens would have been
subject to extraterritorial arrests without proper authorization. Our decision not
to recognize an exception to the exclusionary rule where a statute is enacted in
violation of the single subject clause comports with our jurisprudence that a
statute which is facially invalid, and thus unconstitutional in its entirety, is void
ab initio.” Id.
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¶ 19 However, we find that Carrera is distinguishable from the present case for the
following reasons. First, the statute at issue in Carrera did not itself violate any
provision of the United States Constitution. Id. at 22 (Garman, J., dissenting, joined
by Fitzgerald and Thomas, JJ.) (“[T]he constitutional infirmity in the statute did not
spring from any violation of the fourth amendment of the United States
Constitution or article I, section 6, of the state constitution.”). Rather, the statute at
issue was held unconstitutional because it was enacted in violation of the single
subject clause of the state constitution. Id. at 14-15 (majority opinion). Carrera
involved strict application of a state jurisprudential doctrine—the void ab initio
doctrine—to a state statute declared unconstitutional on purely state grounds. Id. at
16. In the instant case, the statute at issue was held unconstitutional because it
violated the second amendment of the United States Constitution. The reasoning
underlying this court’s decision in Carrera cannot therefore be automatically
applied to the present case, which involves the relationship between the void
ab initio doctrine and a statute declared unconstitutional on federal grounds.
¶ 20 Second, the majority in Carrera declined to consider whether the good-faith
exception to the exclusionary rule applied. Id. The issue of whether police had
probable cause to arrest the defendant in Carrera had been forfeited. See id. at 18.
Therefore, probable cause was not at issue in Carrera. The State also forfeited the
issue of whether the exclusionary rule applied. Id. at 10. Rather, the majority
resolved the case by applying the void ab initio doctrine and declined to address the
good-faith exception due to its belief that application of the good-faith exception
would be counter to the void ab initio doctrine. Id. at 16. The present case requires
that we first address whether probable cause is retroactively invalidated. If not, then
any reasoning involving the good-faith exception to the exclusionary rule is
inapposite.
¶ 21 Third, Carrera is distinguishable because the facts and issues present did not
implicate the limited lockstep doctrine. The single subject clause of the Illinois
Constitution of 1970 does not have a cognate provision in the United States
Constitution. See People v. Caballes, 221 Ill. 2d 282, 289 (2006) (“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.”). In the
instant case, we must address whether probable cause is invalidated by application
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of the void ab initio doctrine. Where, as here, the existence of probable cause is at
issue, which is by definition a fourth amendment issue, we must look to federal law
pursuant to the limited lockstep doctrine. See People v. Fitzpatrick, 2013 IL
113449, ¶ 28.
¶ 22 For the reasons that we explain below, strict application of the void ab initio
doctrine in the present context, to the extent posited by defendant, would conflict
(1) with precedent from the United States Supreme Court and (2) with two recent
decisions from this court.
¶ 23 Limited Lockstep Doctrine
¶ 24 Under our limited lockstep doctrine, we construe the search and seizure clause
of our state constitution in accordance with the United States Supreme Court’s
interpretation of the fourth amendment unless any of the narrow exceptions to
lockstep interpretation apply. See id. This conclusion is “based on the premise that
the drafters of the 1970 constitution and the delegates to the constitutional
convention intended the phrase ‘search and seizure’ in the state document to mean,
in general, what the same phrase means in the federal constitution.” Caballes, 221
Ill. 2d at 314.
¶ 25 “Both the fourth amendment to the United States Constitution, which applies to
the states via the fourteenth amendment (Mapp v. Ohio, 367 U.S. 643 (1961)), and
article I, section 6, of the Illinois Constitution of 1970, guarantee Illinois citizens
the right to be free from unreasonable searches and seizures. U.S. Const., amend.
IV; Ill. Const. 1970, art. I, § 6.” People v. Gaytan, 2015 IL 116223, ¶ 20. Notably,
the term “probable cause” is incorporated in both the state and federal search and
seizure provisions. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Therefore,
we follow decisions of the United States Supreme Court regarding searches and
seizures.
¶ 26 In Michigan v. DeFillippo, the United States Supreme Court addressed
“whether an arrest made in good-faith reliance on an ordinance, which at the time
had not been declared unconstitutional, is valid regardless of a subsequent judicial
determination of its unconstitutionality.” 443 U.S. 31, 33 (1979). The ordinance at
issue provided that a police officer could stop and question an individual if he had
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reasonable cause to believe that the individual’s behavior warranted further
investigation for criminal activity. Id. The ordinance was subsequently amended to
make it a crime for any person stopped pursuant to the ordinance to refuse to
identify himself and produce evidence of his identity. Id. When the defendant failed
to identify himself, he was taken into custody and searched. Id. at 34. The search
revealed a package of marijuana and packet containing a controlled substance. Id.
The defendant was charged with possession of the controlled substance. Id. The
defendant was not charged with or tried for violation of the ordinance. Id.
Subsequently, the ordinance making it a crime to refuse to identify oneself was held
unconstitutionally vague on its face. Id.
¶ 27 The State argued that because of the violation of the ordinance, which the
defendant committed in the presence of the officers, the defendant was subject to a
valid arrest and the search that followed was a valid search incident to arrest. Id. at
35. Therefore, evidence of the drugs should not have been suppressed. Id. The
defendant maintained that since his arrest was for allegedly violating an ordinance
later held unconstitutional, the search was likewise invalid. Id. After noting that the
arresting officer had abundant probable cause to believe the defendant violated the
ordinance, the United States Supreme Court rejected the argument that the officer
lacked probable cause because he should have known the ordinance was invalid
and would later be judicially declared unconstitutional. Id. at 36-37. “A prudent
officer *** should not have been required to anticipate that a court would later hold
the ordinance unconstitutional.” Id. at 37-38. The Supreme Court explained further:
“Police are charged to enforce laws until and unless they are declared
unconstitutional. The enactment of a law forecloses speculation by enforcement
officers concerning its constitutionality—with the possible exception of a law
so grossly and flagrantly unconstitutional that any person of reasonable
prudence would be bound to see its flaws. Society would be ill-served if its
police officers took it upon themselves to determine which laws are and which
are not constitutionally entitled to enforcement.” Id. at 38.
¶ 28 In United States v. Charles, police responded to a call involving a road rage
incident after a woman reported that the other driver was pounding on her car
window and had displayed a gun. 801 F.3d 855, 857 (7th Cir. 2015). When officers
reached the scene, the defendant emerged from his car. Id. The defendant matched
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the caller’s description of the man with the gun, the responding officer noticed a
bulge under the defendant’s clothing, and the responding officer detained and
frisked him. Id. After finding nothing, the officer searched the defendant’s car,
wherein the officer discovered a loaded handgun. Id. The defendant was indicted
for possessing a firearm as a felon. Id. In finding probable cause, the court noted:
“It’s true that Chicago’s handgun ban was later invalidated, see McDonald,
561 U.S. at 791, 130 S. Ct. 3020, as was the Illinois concealed-carry law, see
Moore, 702 F.3d at 942. But the ‘[p]olice are charged to enforce laws until and
unless they are declared unconstitutional,’ so a search based on a violation of a
law later declared unconstitutional does not necessarily violate the Fourth
Amendment. Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 61
L. Ed. 2d 343 (1979). Although Charles could not be punished for violating an
unconstitutional statute or ordinance, unless a law is ‘grossly and flagrantly
unconstitutional,’ a police officer conducting a search may reasonably rely on it
for Fourth Amendment purposes. Id.” Id. at 861.
¶ 29 Federal case law is clear that, under the facts of this case, probable cause would
not be retroactively invalidated by the subsequent invalidation of the statute upon
which probable cause was based at the time of the arrest. DeFillippo, 443 U.S. 31;
Charles, 801 F.3d 855. We find this analysis compelling. Strict application of the
Illinois void ab initio doctrine, to the literal extent posited by defendant, would
conflict with our continued adherence to the limited lockstep doctrine.
¶ 30 People v. Blair and People v. McFadden
¶ 31 Our conclusion is consistent with this court’s recent decisions in People v.
Blair, 2013 IL 114122, and People v. McFadden, 2016 IL 117424.
¶ 32 First, in Blair, this court considered whether Public Act 95-688 (eff. Oct. 23,
2007), which amended the armed violence statute, revived the sentencing
enhancement in the armed robbery statute that this court held unconstitutional in
People v. Hauschild, 226 Ill. 2d 63 (2007). Blair, 2013 IL 114122, ¶ 1. Relevant
here, the State in Blair disputed that, under the void ab initio doctrine, the
legislature could revive the armed robbery sentencing enhancement only by
amending and/or reenacting that statute. Id. ¶ 25. The defendant argued that
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although Public Act 95-688 may have remedied the constitutional infirmity in the
armed robbery statute, Public Act 95-688 did not revive the sentencing
enhancement in that statute because “once Hauschild declared the armed robbery
sentencing enhancement unconstitutional the statute was void ab initio, and ‘the
enhancement never existed.’ ” Id. ¶ 26. Agreeing with the State, this court
explained:
“Contrary to defendant’s argument, the void ab initio doctrine does not
mean that a statute held unconstitutional never existed. As we recognized in
Perlstein, [t]he actual existence of a statute, prior to a determination that the
statute is unconstitutional, is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. Perlstein, 218 Ill. 2d at 461 (quoting Chicot County
Drainage District v. Baxter State Bank, 308 U.S. 371, 374 (1940)). Moreover,
to construe the void ab initio doctrine as rendering a statute nonexistent is
tantamount to saying that this court may repeal a statute. See Certain Taxpayers
v. [Sheahen], 45 Ill. 2d 75, 81 (1970) (effect of repeal is to obliterate the statute
repealed as completely as though it had never been passed as a law and never
existed). Such a result, however, would contravene our separation of powers
clause. Ill. Const. 1970, art. II, § 1.
The power to enact laws, and the concomitant power to repeal those laws,
reside in the General Assembly. *** Although we are obligated to declare an
unconstitutional statute invalid and void [citations], such a declaration by this
court cannot, within the strictures of the separation of powers clause, repeal or
otherwise render the statute nonexistent.” (Internal quotation marks omitted.)
Id. ¶¶ 29-30.
¶ 33 Next, in McFadden, we considered whether a conviction for AUUW based on
section 24-1.6(a)(1), (a)(3)(A) could still serve as a prior felony conviction after
that section was declared facially unconstitutional. 2016 IL 117424. The defendant
argued that his 2008 conviction for unlawful use of a weapon (UUW) by a felon, a
constitutionally valid offense, was not proven because the predicate felony
conviction was based on that portion of the AUUW statute declared facially
unconstitutional and void ab initio in Aguilar. Id. ¶ 21. We noted that, “[b]ased on
this court’s precedent, we continue to reaffirm the principle that the void ab initio
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doctrine renders a facially unconstitutional statute unenforceable and renders a
conviction under that facially unconstitutional statute subject to vacatur.” Id. ¶ 20.
We explained:
“Although Aguilar may provide a basis for vacating defendant’s prior 2002
AUUW conviction, Aguilar did not automatically overturn that judgment of
conviction. Thus, at the time defendant committed the UUW by a felon offense,
defendant had a judgment of conviction that had not been vacated and that
made it unlawful for him to possess firearms.” Id. ¶ 31.
¶ 34 Therefore, this court rejected the defendant’s argument that the void ab initio
doctrine, in and of itself, procedurally operated to overturn the 2002 AUUW
conviction. The conviction would be treated as valid unless and until it was
declared otherwise via judicial process. Id.
¶ 35 In the instant case, defendant attempts to distinguish Blair and McFadden.
Specifically, defendant implies that, because Blair involved a question of revival
and revival is not at issue in the instant case, Blair is inapposite. Defendant also
asserts that McFadden did not curtail the reach of the void ab initio doctrine nor
preclude the defendant from obtaining relief, as it addressed only the question of
the procedural mechanism to challenge a conviction for unlawful use of a weapon
by a felon where the underlying felony conviction had been based upon a statute
later found unconstitutional. Because defendant “followed the proper procedure by
filing a motion to suppress challenging his arrest without probable cause,”
defendant insinuates that McFadden is similarly inapplicable.
¶ 36 We reject these arguments. Defendant does not explain why, if the void
ab initio doctrine did not bar a statutory amendment from being revived in Blair or
did not automatically invalidate the judgment of a predicate felony conviction in
McFadden, it would invalidate probable cause. Such a contention is irreconcilable
with Blair and McFadden.
¶ 37 We hold that the void ab initio doctrine does not retroactively invalidate
probable cause based on a statute later held unconstitutional on federal
constitutional grounds or on state constitutional grounds subject to the limited
lockstep doctrine. In the instant case, Officer Barrera had probable cause at the time
of defendant’s arrest, and thus there is no reason to suppress the evidence collected
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incidental to the arrest. Because we conclude that probable cause existed at the time
of defendant’s arrest and that probable cause was not retroactively invalidated by
the subsequent declaration of unconstitutionality on second amendment grounds,
the exclusionary rule does not apply. Thus, there is no need to consider the
good-faith exception to the exclusionary rule.
¶ 38 CONCLUSION
¶ 39 The void ab initio doctrine did not retroactively invalidate probable cause for
defendant’s arrest because probable cause was predicated on a statute that was
subsequently declared unconstitutional on federal grounds. Because probable cause
is a component of both the federal and state search and seizure provisions, we
follow federal law pursuant to the limited lockstep doctrine. Federal case law holds
that probable cause for arrest would not be retroactively invalidated by subsequent
declaration of a statute’s unconstitutionality on federal grounds. See DeFillippo,
443 U.S. 31; Charles, 801 F.3d 855. Carrera is distinguishable and does not dictate
a different result because (1) Carrera involved strict application of a state
jurisprudential doctrine—the void ab initio doctrine—to a state statute declared
unconstitutional on purely state grounds, (2) Carrera did not analyze probable
cause as it was not at issue, and (3) the facts and issues presented in Carrera did not
implicate the limited lockstep doctrine. See Carrera, 203 Ill. 2d 1. Our conclusion
comports with this court’s decisions in Blair and McFadden. See Blair, 2013 IL
114122; McFadden, 2016 IL 117424. To hold that the void ab initio doctrine
requires retroactive invalidation of probable cause would be tantamount to a repeal
of the statute, which would violate separation of powers. Because probable cause is
not invalidated, no fourth amendment violation has occurred. Therefore, we need
not reach the issue of whether the good-faith exception to the exclusionary rule may
apply. Consequently, we reverse the judgment of the appellate court and remand
the case to the circuit court for further proceedings.
¶ 40 Reversed and remanded.
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¶ 41 JUSTICE KILBRIDE, dissenting:
¶ 42 This opinion brings the demise of this court’s void ab initio doctrine one step
closer. While once again purportedly “ ‘continu[ing] to reaffirm the principle that
the void ab initio doctrine renders a facially unconstitutional statute
unenforceable’ ” (supra ¶ 33 (quoting People v. McFadden, 2016 IL 117424,
¶ 20)), the majority simultaneously vitiates both that doctrine’s reason for being
and our institutional duty to void statutes that are facially unconstitutional and to
remediate the damage they have done. In reaching its decision, the majority
construes this court’s opinion in People v. Carrera, 203 Ill. 2d 1, 16 (2002), so
narrowly that it is effectively overruled. The majority’s analysis is fundamentally
incompatible with stare decisis and our “paramount and constitutionally mandated
function” to protect citizens’ constitutional rights from facially unconstitutional
legislation. People v. Gersch, 135 Ill. 2d 384, 398 (1990). Because I cannot agree, I
respectfully dissent.
¶ 43 In 1886, the United States Supreme Court explained that “[a]n unconstitutional
act is not a law; it confers no rights; it imposes no duties; it affords no protection; it
creates no office; it is, in legal contemplation, as inoperative as though it had never
been passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886). See also supra
¶ 12 (quoting Gersch, 135 Ill. 2d at 399, quoting People v. Schraeberg, 347 Ill. 392,
394 (1932)). This court has consistently followed that formulation of the void
ab initio doctrine, repeatedly deeming facially unconstitutional statutes void
“ ‘from the beginning.’ ” Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting
Black’s Law Dictionary 1604 (8th ed. 2004)). No one may be prosecuted in Illinois
under a facially unconstitutional law because “ ‘[a]n invalid law is no law at all.’ ”
(Internal quotation marks omitted.) Gersch, 135 Ill. 2d at 399 (quoting Van Driel
Drug Store, Inc. v. Mahin, 47 Ill. 2d 378, 381 (1970), quoting People ex rel. Barrett
v. Sbarbaro, 386 Ill. 581, 590 (1944)). While we have occasionally permitted a
somewhat more relaxed, equitable application of the void ab initio doctrine in civil
cases, we have adhered to its strict application in criminal matters for decades.
Indeed, we have actively championed strict application of the doctrine in criminal
cases, “where a defendant’s constitutionally guaranteed rights are in need of
vindication.” Perlstein, 218 Ill. 2d at 466.
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¶ 44 While necessarily acknowledging this substantive backdrop (supra ¶ 12), the
majority nonetheless chooses to distance itself from those precedents, relying
instead on a faulty analogy that erroneously equates the “repeal” of a statute with a
judicial declaration that it is void ab initio. According to the majority, “ ‘to
construe the void ab initio doctrine as rendering a statute nonexistent is tantamount
to saying that this court may repeal a statute. [Citation.] Such a result, however,
would contravene our separation of powers clause.’ ” Supra ¶ 32 (quoting People v.
Blair, 2013 IL 114122, ¶ 29). Not surprisingly, however, the parties’ briefs do not
raise the spectre of a “judicial repeal.” Applying the majority’s approach, even the
Supreme Court’s 1886 description of a judicial finding of unconstitutionality would
create a separation of powers violation. See Norton, 118 U.S. at 442 (explaining
that “[a]n unconstitutional act is not a law; *** it is, in legal contemplation, as
inoperative as though it had never been passed”). Used properly, “repeal” is, in fact,
a legal term of art meaning “abrogation of an existing law by legislative act.”
(Emphasis added.) A repeal may be “express,” relying on a “specific declaration in
a new statute or main motion,” or “implied,” produced by an “irreconcilable
conflict between an old law or main motion and a more recent law or motion.”
Black’s Law Dictionary 1413 (9th ed. 2009). Regardless of the type, however, a
“repeal” necessarily involves legislative action. See also Certain Taxpayers v.
Sheahen, 45 Ill. 2d 75, 81 (1970) (noting that, when one legislative act repeals
another, the effect is to “obliterate” the original statute as though it never existed).
¶ 45 In contrast, the void ab initio doctrine was judicially adopted to vindicate our
citizens’ fundamental right to be free from unconstitutional legislation and to
discourage its enactment. While the effect of this equitable doctrine may be similar
to that of a legislative repeal, it is a distinct mechanism based on policy
determinations specifically tied to the differing roles played by the courts and the
legislature. Gersch, 135 Ill. 2d at 396. Because judicial decisions declare the
existing law, they allow for only incremental adjustments as conditions evolve.
This slower process allows courts to consider whether equitable factors justify the
retroactive application of each change. In contrast, the legislature is empowered to
alter the course of public policy sharply and to create unexpected new rights and
responsibilities. For that reason, legislative actions are presumed to apply only
prospectively. Gersch, 135 Ill. 2d at 396-97. “A constitutionally repugnant
enactment suddenly cuts off rights that are guaranteed to every citizen [citation],
and instantaneously perverts the duties owed to those citizens.” Gersch, 135 Ill. 2d
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at 397. By failing to apply the void ab initio doctrine to inactivate facially
unconstitutional statutes retroactively, this court would “effectively resurrect the
amendment and provide a grace period *** during which our citizens would have
been subject to” unconstitutional legislative action. Carrera, 203 Ill. 2d at 16. “To
hold that a judicial decision that declares a statute unconstitutional is not retroactive
would forever prevent those injured under the unconstitutional legislative act from
receiving a remedy for the deprivation of a guaranteed right.” Gersch, 135 Ill. 2d at
397. Those considerations, along with our mandate to strike down statutes that
infringe on citizens’ constitutional rights, have been the driving forces behind our
strict application of the void ab initio doctrine in criminal cases. Gersch, 135 Ill. 2d
at 398-99.
¶ 46 Here, the relevant statute eviscerated Illinois citizens’ fundamental right to
possess firearms, contrary to the core values firmly ensconced in the second
amendment of our federal constitution (U.S. Const., amend. II). People v. Aguilar,
2013 IL 112116, ¶ 16. The majority’s position drastically, and unnecessarily,
undermines the protections provided by our strict application of the void ab initio
doctrine. Without those protections, citizens unlucky enough to attract the attention
of law enforcement while exercising their second amendment rights are exposed to
otherwise impermissible prosecution for secondary conduct. In those instances, I
continue to support this court’s application of the void ab initio doctrine both to
protect guaranteed constitutional rights and to uphold our precedents shielding
citizens from the sort of extreme collateral damage that, as in this case, can arise
from arrests for facially unconstitutional offenses.
¶ 47 Contrary to the majority’s claim (supra ¶ 32), the effect of a judicial declaration
that a statute is facially unconstitutional, and thus void ab initio, does not violate
the separation of powers clause, at least no more than does the inevitable
intertwining of our statutory constructions with the underlying statutory language.
Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶ 19 (recognizing that the
judicial construction of a statute effectively becomes part of that statute); Abruzzo
v. City of Park Ridge, 231 Ill. 2d 324, 343 (2008) (and cases cited therein). The
inherent interweaving of common law and statutory enactment has never been
deemed an unconstitutional judicial crossover into the legislature’s exclusive
territory, nor should it be. It is simply the natural outcome when each branch of
government fulfills its intended function.
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¶ 48 Similarly, legislative repeal and our strict application of the void ab initio
doctrine both provide mechanisms exercising the complementary authority
possessed by our coequal branches of government. Our strict application of the
void ab initio doctrine, however, is not, and never has been, “tantamount to saying
that this court may repeal a statute.” (Internal quotation marks omitted.) Supra ¶ 32.
Perhaps that is the reason the parties’ briefs did not include that argument,
necessitating the majority’s sua sponte discussion. The majority’s contrary
conclusion suggests that many of our decisions applying the doctrine are
unconstitutional, seriously undercutting their validity.
¶ 49 The majority’s approach also attacks our analysis in Carrera, when we applied
the exclusionary rule to an extraterritorial arrest conducted in reliance on a statute
later held facially unconstitutional. We declined to consider the good-faith
exception, concluding that it “would run counter to our single subject clause and
void ab initio jurisprudence.” Carrera, 203 Ill. 2d at 16. We further declined to
give effect to the historical fact that the arrest was authorized by a statute that, at the
time, was valid because doing so “would effectively resurrect the amendment and
provide a grace period *** during which our citizens would have been subject to
extraterritorial arrests without proper authorization.” Carrera, 203 Ill. 2d at 16. The
majority’s abandonment of that principle here is irreconcilable with its purported
allegiance to our void ab initio doctrine as well as our rejection of the Supreme
Court’s decision in Illinois v. Krull, 480 U.S. 340 (1987), in favor of the dissent
authored by Justice O’Connor, based on the same rationale. See People v. Krueger,
175 Ill. 2d 60, 71-73 (1996) (discussing Krull, 480 U.S. at 361-69 (O’Connor, J.,
dissenting, joined by Brennan, Marshall, and Stevens, JJ.)). As this case makes
clear, the creation of a grace period for violating our citizens’ constitutional rights
with legislative impunity remains a serious concern and requires swift and
complete remedial action. The AUUW provision at issue had been in effect since
2000 and undoubtedly had been applied against hundreds, if not thousands, of
Illinois citizens before we declared it facially unconstitutional in Aguilar, 2013 IL
112116. Although the majority is content to accept the dismissal of the void
AUUW charges as defendant’s sole remedy, subjecting him to prosecution for
secondary charges premised on his arrest for that nonoffense, I am not.
¶ 50 What consolation is it for the State to drop the facially unconstitutional charges
that prompted an arrest only to subject the very citizen whose rights were violated
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to additional felonies discovered after that arrest? It is, after all, this court’s “duty
not only to declare such a legislative act void, but also to correct the wrongs
wrought through such an act by holding our decision retroactive.” Gersch, 135 Ill.
2d at 399. In its effort to avoid the harsh consequences sometimes resulting from
the invalidation of legislation that tramples our citizens’ fundamental rights, the
majority overlooks the highly principled rationale underlying our void ab initio
precedents. The ends thus achieved, however, cannot justify the means used to
reach them under our case law.
¶ 51 To bolster its unjust conclusion, the majority also attempts to distinguish
Carrera based on the nature of its underlying constitutional flaw. That attempt
fails, however, by relying on a distinction without a difference. Although the statute
in Carrera was declared unconstitutional for violating the state single subject rule,
while the AUUW provision here violated the federal second amendment, that
distinction is irrelevant. We expressly recognized as much when we explained that
“[t]he void ab initio doctrine applies equally to legislative acts which are
unconstitutional because they violate substantive constitutional guarantees
[citation] and those that are unconstitutional because they are adopted in violation
of the single subject clause of our constitution [citation].” Carrera, 203 Ill. 2d at
14-15. The majority’s rejection of that conclusion contradicts Carrera’s clear
directive.
¶ 52 Compounding its error, the majority announces this unprecedented limitation
on the void ab initio doctrine without citation to any legal authority. Supra ¶ 19. No
principled basis exists for granting relief under the void ab initio doctrine when the
statute is unconstitutional on state grounds but denying the same relief when the
constitutional problem is federal. It is inconceivable that this court would apply the
void ab initio doctrine to grant the defendant in Carrera full relief, bypassing the
fourth amendment issues raised, but deny this defendant any remedy by now
choosing to focus on those same fourth amendment questions. As long as a statute
is facially unconstitutional, on any basis, the core justifications for applying our
void ab initio doctrine remain the same: to preserve our citizens’ constitutional
rights, to provide a full remedy for all legislative violations, and to discourage the
future enactment of unconstitutional legislation.
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¶ 53 Consistent with those principles, the legislature’s direct violation of
defendant’s second amendment rights demands that he be granted full relief. The
necessity of relief is even more obvious when the nature of the harm here is
compared to Carrera. The statute granting the police extraterritorial jurisdiction to
make arrests in Carrera was unconstitutional merely because it was improperly
enacted; the statute’s substantive constitutionality was never in question. Carrera,
203 Ill. 2d at 13-14. In other words, if the police had exercised exactly the same
jurisdictional authority under a statute enacted as part of a legislative package
addressing a single subject, the validity of Carrera’s arrest would never have been
in question. Nonetheless, despite the fact that the harm inflicted on Carrera was
indirect, he received full relief from this court. In sharp contrast, the substance of
the only offense underlying defendant’s arrest here was unconstitutional on its face,
invalidating each and every prosecution based on it, yet he receives no relief. The
direct and personal nature of the constitutional wrong done to defendant, and to
every other unfortunate soul arrested on facially unconstitutional charges, is
palpable, magnifying, not diminishing, the need for a full judicial remedy. When
viewed in that light, the injustice of the majority’s disposition is manifest.
¶ 54 Further undercutting the majority’s comparison of the state versus federal
constitutional violations, blackletter law recognizes a blanket constitutional right to
possess firearms throughout the nation, with the federal right extended to the states
through the application of the fourteenth amendment. People v. Aguilar, 2013 IL
112116, ¶ 17 (citing McDonald v. City of Chicago, 561 U.S. 742 (2010), for the
proposition that the second amendment is applicable to the states through the due
process clause of the fourteenth amendment); Coram v. State of Illinois, 2013 IL
113867, ¶ 49 (stating the same proposition); Wilson v. County of Cook, 2012 IL
112026, ¶ 11 (same). That constitutional mandate is thus no less a part of Illinois
citizens’ constitutional rights than is the single subject rule. Drawing invisible lines
based on the origin of citizens’ basic rights ignores their universality as well as
what is at stake if they are disregarded.
¶ 55 The majority’s additional attempts to distinguish Carrera due to the State’s
forfeiture of the fourth amendment questions there (supra ¶ 20) again contradict
our express language. In discussing the alleged forfeiture, we stated that it was “not
necessary *** to determine whether the State has waived the [exclusionary rule]
argument” or “consider whether the alleged waiver must be excused under the
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circumstances at bar.” Carrera, 203 Ill. 2d at 11. Thus, Carrera cannot be properly
distinguished based on forfeiture because we never considered the forfeiture
question on its merits. In fact, we declined to address the State’s alleged forfeiture
precisely because it was irrelevant to our decision.
¶ 56 Instead, we expressly “[chose] to resolve [the] cause on narrower grounds” than
the fourth amendment. Carrera, 203 Ill. 2d at 13. And our failure to address those
issues was not a mere oversight. Recognizing the critical role played by our state
doctrine, we explained that “[t]he result that we reach[ed was] dictated by
application of the void ab initio doctrine.” (Emphasis added.) Carrera, 203 Ill. 2d
at 13-14. The majority here, however, turns Carrera on its head, completely
ignoring this court’s stated preference for applying the void ab initio doctrine even
when presented with fourth amendment matters potentially implicating limited
lockstep.
¶ 57 The majority’s analysis continues to ramp up the legal ambiguity, creating
uncertainty over our abandonment of the test we mandated in Krueger “to delineate
the scope of our state exclusionary rule.” Under that test, we must “ ‘carefully
balance the legitimate aims of law enforcement against the right of our citizens to
be free from unreasonable governmental intrusion.’ ” Krueger, 175 Ill. 2d at 75
(quoting People v. Tisler, 103 Ill. 2d 226, 245 (1984)). We resolved that question in
Carrera in favor of protecting our citizens’ substantive rights when, as here, the
arrest was premised on a facially unconstitutional statute. Carrera, 203 Ill. 2d at
14-15. Because “[a]n unconstitutional law ‘confers no right, imposes no duty and
affords no protection’ ” (internal quotation marks omitted) (supra ¶ 12), no duty
exists to enforce an unconstitutional law, and conversely, the mere presence of a
facially unconstitutional law on the books affords the State no protection for the
consequences of any arrests based on it.
¶ 58 The murkiness of the opinion’s rationale further deepens when it chooses to
focus on probable cause rather than on our void ab initio doctrine. While the
historical fact that probable cause existed at the time of the arrest undoubtedly
cannot be altered at this late date, probable cause is not, and has never been, at issue
here. The majority, however, uses the existence of contemporaneous probable
cause to justify its decision to address fourth amendment matters rather than the
effect of our void ab initio doctrine, contrary to our analysis in Carrera. Supra
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¶¶ 36-37. In doing so, the majority answers the wrong question. The majority’s
discussion of probable cause is no more relevant here than a substantive analysis of
the good-faith exception or the exclusionary rule was in Carrera. This case is not
about whether probable cause can be retroactively invalidated. This case involves
only the suppression of evidence gathered after an arrest for a facially
unconstitutional offense.
¶ 59 Just as we have never concerned ourselves with the good-faith exception’s
retroactive effect on probable cause, we should not concern ourselves now with the
retroactive effect of the void ab initio doctrine on probable cause. The real question
is limited to whether that doctrine creates a remedy for defendant following his
arrest for a facially unconstitutional substantive offense. And we need not
invalidate defendant’s arrest for lack of probable cause to fashion the necessary
remedy. We simply need to apply the void ab initio doctrine as we did in Carrera.
We can, and should, rely on our own nonconstitutional precedents whenever
possible. People v. White, 2011 IL 109689, ¶ 144 (explaining that constitutional
challenges are addressed only when they are essential to the case’s disposition). It
is both unnecessary and unwise to consider whether probable cause is retroactively
undermined by either fourth amendment considerations or our void ab initio
doctrine.
¶ 60 Both Carrera and this case hinge exclusively on the application of our void
ab initio case law, obviating any examination of forfeiture or fourth amendment
questions. Carrera, 203 Ill. 2d at 11, 13-14. When applying the void ab initio
doctrine, the policy considerations underlying probable cause, such as discouraging
police misconduct, are irrelevant. The conduct of the police bears neither fault nor
consideration in determining the proper outcome in this case. The only policy
considerations that matter are those that historically animated our void ab initio
doctrine. We adopted that doctrine to protect our citizens’ rights from legislative
overreach and to discourage the enactment of facially unconstitutional laws.
Carrera, 203 Ill. 2d at 16. See also Krueger, 175 Ill. 2d at 72-75 (adopting similar
rationale to the dissent in Krull, 480 U.S. at 361-69 (O’Connor, J., dissenting,
joined by Brennan, Marshall, and Stevens, JJ.)). As we did in Carrera, we should
apply the doctrine here to suppress the evidence gathered after defendant’s arrest
for a facially unconstitutional offense.
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¶ 61 Attempting to find additional support for its departure from the strict
application of our void ab initio doctrine, however, the majority turns to federal
case law. Relying on Michigan v. DeFillippo and United States v. Charles, the
opinion argues that “[f]ederal case law is clear that *** probable cause would not
be retroactively invalidated by the subsequent invalidation of the statute”
underlying defendant’s arrest. Supra ¶ 29 (citing 443 U.S. 31, and 801 F.3d 855).
Although that statement is correct as far as it goes, this is not a federal case, and this
court is not bound by the federal case law cited. People v. Radojcic, 2013 IL
114197, ¶ 36. We may not abandon our own state doctrines based solely on
contrary federal authority, at least not without properly justifying our break from
stare decisis. In this case, the majority’s unexplained break is particularly
egregious because federal courts do not adhere to our unique construction of the
void ab initio doctrine and, indeed, rarely even use that term. Because federal
courts do not abide by our void ab initio jurisprudence, the rationale and outcomes
in DeFillippo and Charles offer us absolutely no guidance here.
¶ 62 Indeed, the differing results in those cases should come as no surprise after this
court’s rejection in Krueger of the United States Supreme Court’s similar position
in Krull. Relying on the same policy rationales underlying our decision in Carrera,
Krueger expressly rejected the holding in Krull that “the fourth amendment
exclusionary rule does not bar the use of evidence seized by a police officer who
reasonably relied, in objective good faith, on a statute that *** is later declared to be
unconstitutional.” Krueger, 175 Ill. 2d at 71. Instead, we knowingly departed from
lockstep in a fourth amendment case and adopted Justice O’Connor’s Krull dissent,
an opinion joined by Justices Brennan, Marshall, and Stevens. Krueger, 175 Ill. 2d
at 71-75 (discussing Krull, 480 U.S. at 361-69). That dissent focused on the
“serious threat to fourth amendment values” and liberty created by approving “ ‘a
legislature’s unreasonable authorization of searches [that] may affect thousands or
millions.’ ” Krueger, 175 Ill. 2d at 72, 73 (quoting Krull, 480 U.S. at 365
(O’Connor, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.)). We
reaffirmed that position just a few short years ago in Fitzpatrick, when we once
again relied on Illinois’s “long-standing state tradition of excluding evidence
obtained under the authority of an unconstitutional statute. Krueger, 175 Ill. 2d at
74-75.” (Emphasis added.) People v. Fitzpatrick, 2013 IL 113449, ¶ 16. I see no
principled reason for rejecting that same rationale now, without explanation,
following defendant’s arrest for “something that was never a crime” (People v.
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Shinaul, 2017 IL 120162, ¶ 14). Unlike today’s majority, I remain “[un]willing to
recognize an exception to our state exclusionary rule that will provide a grace
period for unconstitutional search and seizure legislation, during which time our
citizens’ prized constitutional rights can be violated with impunity.” Krueger, 175
Ill. 2d at 75. In light of the facially unconstitutional offense in this case, the need for
continuing this stance is even stronger. The majority’s position would create a
legislative grace period lasting at least 13 years and affecting innumerable Illinois
citizens guilty of nothing more than the exercise of their constitutionally protected
rights. Krueger, 175 Ill. 2d at 75 (relying on the same factors).
¶ 63 In light of our precedents applying the void ab initio doctrine rather than fourth
amendment case law, the majority’s discussion of limited lockstep remains a
mystery. Despite recognizing our refusal to address the merits of the State’s fourth
amendment arguments in Carrera, 203 Ill. 2d at 12-14 (supra ¶ 18), the majority
asserts that its result in this case is compelled by our adherence to fourth
amendment jurisprudence (supra ¶¶ 28-29), raising new questions about the
continuing validity of our contrary analyses in Carrera and Krueger, as well as
other void ab initio decisions. Because the majority declines to overrule those
precedents directly, it is apparently content to disavow them sub silentio.
¶ 64 The opinion is also surprisingly inconsistent with our statements in People v.
Caballes:
“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 ‘grace period for unconstitutional search and
seizure legislation,’ *** [and] ‘knowingly depart[ed]’ from the lockstep
tradition to give effect to another tradition—the exclusion of evidence gathered
in violation of the state constitution’s prohibition of unreasonable searches and
seizures.” (Emphasis added.) Caballes, 221 Ill. 2d at 302-03.
In Caballes, we also recognized that “Krueger was a case about remedies” and that
lockstep was not implicated because in Krueger “[w]e construed state law as
providing a remedy for the constitutional violation even though the federal
constitution did not require one.” Caballes, 221 Ill. 2d at 303. The same is true here.
In the absence of a federal remedy, defendant seeks alternative relief under our
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state void ab initio doctrine, namely, the suppression of evidence obtained pursuant
to his arrest on a facially unconstitutional offense. Despite this case being as much
about remedies as Krueger, and contrary to our long-held state tradition of strictly
applying the void ab initio doctrine to facially unconstitutional criminal statutes,
the majority rejects that analysis here.
¶ 65 To complete its discussion, the majority opinion concludes that strictly
applying the void ab initio doctrine here would conflict with our decisions in
People v. McFadden, 2016 IL 117424, and People v. Blair, 2013 IL 114122. While
rejecting the argument that McFadden is distinguishable, the majority chides
defendant for not explaining why the void ab initio doctrine would invalidate
probable cause if it did not automatically invalidate the prior conviction in
McFadden. Once again, because I believe the issue in this case is not properly
defined by the doctrine’s retroactive effect on probable cause, I cannot agree with
the majority. The majority’s focus in McFadden was on that defendant’s felony
status and the procedural hoops he was required to jump through before the State
could be precluded from using his facially unconstitutional AUUW conviction as
the predicate felony for a charge of unlawful use of a weapon by a felon filed years
later. Because the majority’s approach in that case discussed an entirely different
question, I agree with defendant that McFadden is distinguishable.
¶ 66 This court’s decision in Blair is equally inapt. There, the court was considering
whether an amendment to the armed violence statute revived an armed robbery
sentencing enhancement declared unconstitutional in Hauschild. We noted that the
“actual existence” of the statute “is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new judicial
declaration.” (Internal quotation marks omitted.) Blair, 2013 IL 114122, ¶ 29. That
explanation, however, begs the legal question here, when the issue is not even
remotely similar. In truth, no remedial doctrine can ever alter historical fact. Our
case law applying the void ab initio doctrine, however, has looked beyond
historical fact to fulfill this court’s duty to uphold the constitution and provide
justice to those harmed by unconstitutional legislation. For example, our rejection
of the Supreme Court’s holding in Krull was due to our abiding concern over the
creation of a grace period when the legislation could freely violate citizens’
guaranteed rights. The same rationale supported our use of the void ab initio
doctrine in Carrera. Our decisions in those cases were driven by our mandate to
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protect citizens’ constitutional rights from legislative overreach and to provide an
effective remedy when those rights are breached. Along with our other void
ab initio precedents, Carrera and Krueger squarely put it within the power, and the
inherent duty, of this court to remedy the consequences defendant faces here due
solely to the enactment of the facially unconstitutional AUUW provision.
¶ 67 It is not enough simply to bar the prosecution of the facially unconstitutional
offense while permitting a defendant to be tried for an offense discovered only later
when “ ‘[a]n invalid law is no law at all.’ ” (Internal quotation marks omitted.)
Gersch, 135 Ill. 2d at 399 (quoting Van Driel Drug Store, Inc. v. Mahin, 47 Ill. 2d
378, 381 (1970), quoting People ex rel. Barrett v. Sbarbaro, 386 Ill. 581, 590
(1944)). Since our decision in Blair, we have reiterated that “a statutory section
cannot be ‘present’ if it is void ab initio.” People v. Mosley, 2015 IL 115872, ¶ 55.
And, as even Blair recognized, “ ‘[t]he effect of enacting an unconstitutional
amendment to a statute is to leave the law in force as it was before the adoption of
the amendment.’ ” Blair, 2013 IL 114122, ¶ 30 (quoting Gersch, 135 Ill. 2d at 390).
Despite its stated reliance on Blair, the majority fails to apply that proposition here.
If we apply the law as it stood prior to the enactment of the unconstitutional AUUW
provision, defendant would not have been arrested, and the FOID card violations
would not have been discovered. To provide a complete remedy, therefore, we
must suppress the post-arrest FOID card evidence.
¶ 68 To hold otherwise would open wide the judicial doors to abuse of our system of
criminal justice. Imagine the myriad possibilities for abuse if citizens could be
arrested for overtly unconstitutional offenses that were later nol prossed while the
evidence obtained pursuant to those arrests was used to prosecute otherwise
unreachable conduct. This court’s longstanding formulation of the void ab initio
doctrine was intended to prevent just that sort of misuse of legislative power.
¶ 69 When citizens become the unwitting victims of facially unconstitutional
legislation, we must grant them the fullest relief possible in the interests of justice.
Only in that way may the temptation to enact unconstitutional criminal statutes in
the hopes of reaching secondary conduct be quelled. Otherwise, where is the justice
for those citizens arrested during a judicially sanctioned legislative grace period for
a statute that makes constitutionally protected acts illegal? The only truly effective,
and just, relief is to suppress the evidence discovered after those arrests. Not only is
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that remedy straightforward and practicable, but it fulfills the vital principles
underlying this court’s formulation of the void ab initio doctrine.
¶ 70 In contrast, the result created by the majority’s disposition sharply undercuts
those goals. Because the majority’s view “commands that which the Constitution
denies the State the power to command and makes ‘a crime out of what under the
Constitution cannot be a crime,’ ” I dissent from its incremental, sub silentio,
dismantling of our void ab initio doctrine. Michigan v. DeFillippo, 443 U.S. 31, 45
(1979) (Brennan, J., dissenting, joined by Marshall and Stevens, JJ.) (quoting
Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971)). “[O]ur 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 voters—this is our solemn obligation. In keeping
with this obligation, *** this court adopted a limited lockstep approach in [People
v.] Tisler[, 103 Ill. 2d 226 (1984),] and modified it in Krueger and Washington to
allow consideration of state tradition and values as reflected by long-standing state
case precedent.” Caballes, 221 Ill. 2d at 313-14. Here, the strict application of the
void ab initio doctrine in criminal cases is an enduring state tradition reflected in
our case law. If nothing else, stare decisis dictates that we continue to apply that
doctrine and suppress the evidence gathered against defendant after his arrest for
“something that was never a crime” (Shinaul, 2017 IL 120162, ¶ 14).
¶ 71 If, however, the majority wishes to change course at this late date and vitiate
our longstanding application of the void ab initio doctrine, it should do so
forthrightly. While the majority’s reluctance to admit its progressive eradication of
the doctrine might be understandable if we were routinely confronted with harsh
consequences from its application, that is far from true. “[T]he void ab initio
doctrine does not apply to an as-applied constitutional challenge” (emphasis in
original) (People v. Thompson, 2015 IL 118151, ¶ 32), and facial challenges
remain the most difficult constitutional claims to mount (People v. Davis, 2014 IL
115595, ¶ 25). When raised, they are rarely successful. And even more rarely do
the few successful challenges render void ab initio statutes defining criminal
offenses, triggering the strict application of the doctrine.
¶ 72 The elimination of the void ab initio doctrine would, of course, require this
court to reverse numerous well-reasoned precedents previously fundamental to our
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criminal jurisprudence. Perhaps the need for special justification to break from
stare decisis explains the majority’s failure to acknowledge the serious impact its
recent decisions have had on the viability of the doctrine. See People v. Colon, 225
Ill. 2d 125, 146 (2007) (explaining that every departure from stare decisis must be
“specially justified” (internal quotation marks omitted)). Regardless of the source
of the majority’s refusal to address the doctrine’s erosion, I choose to adhere to the
case law we have so carefully fashioned to protect the fundamental rights of Illinois
citizens.
¶ 73 Our continued adherence to the void ab initio doctrine in precedents such as
Carrera is ultimately necessary because, when faced with “a statute [that] is
violative of constitutional guarantees, we have a duty not only to declare such a
legislative act void, but also to correct the wrongs wrought through such an act by
holding our decision retroactive.” Gersch, 135 Ill. 2d at 399. The doctrine
represents this court’s considered decision to preclude the creation of a grace
period permitting our citizens to be arrested, prosecuted, and deprived of their
liberty all for the simple exercise of their fundamental constitutional rights. It is the
summation of the principles of justice that drove us to reject the Supreme Court’s
analysis in Krull, reverse the defendant’s murder conviction and remand for a new
trial in Gersch, and suppress the post-arrest evidence in Carrera. It is also the
consideration that should animate this court’s analysis in the present case. Both
stare decisis and fundamental fairness demand no less. For that reason, I would
continue to apply the void ab initio doctrine consistent with our established case
law, and accordingly, I dissent from the majority opinion.
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