People v. Carlson , 287 Ill. App. 3d 700 ( 1997 )

                             No. 2--96--0307

________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE              )  Appeal from the Circuit Court

OF ILLINOIS,                         )  of Kane County.

                                    )

    Plaintiff-Appellant,            )  No. 94--CF--1188

                                    )  

v.                                   )

                                    )

JODI KAE CARLSON,                    )  Honorable

                                    )  Barry E. Puklin,

    Defendant-Appellee.             )  Judge, Presiding.

________________________________________________________________

    JUSTICE THOMAS delivered the opinion of the court:

    The State appeals an order suppressing evidence recovered

during a search that was executed pursuant to an anticipatory

search warrant.  The evidence recovered in the search resulted in

the arrest of defendant, Jodi Kae Carlson.  The supreme court later

determined that anticipatory search warrants are statutorily

impermissible in Illinois, and the State now argues that the trial

court should have applied the good-faith exception to the

exclusionary rule.  We reverse and remand.

    On July 26, 1994, defendant was indicted for the unlawful

possession of a controlled substance (psilocybin) with the intent

to deliver (720 ILCS 570/401(a)(11) (West 1994)) and the unlawful

possession of a controlled substance (psilocybin) (720 ILCS

570/402(a)(11) (West 1994)).   On February 22, 1995, defendant

filed a motion to suppress evidence, alleging that the police had

searched her home pursuant to an anticipatory search warrant and

that anticipatory warrants are statutorily prohibited in Illinois.

    The warrant was issued based on the affidavit of Special Agent

Joseph Bolino of the Illinois State Police.  Bolino stated in his

affidavit that on July 12, 1994, he was contacted by Mark Zielke,

a United States postal inspector.  Zielke told Bolino that he had

searched an express mail parcel addressed to "Jodi Davis, 804

Midway Drive, Batavia, Illinois 60510."  Zielke had obtained

probable cause to search the package through the use of a

narcotics-trained police dog and then applied for and received a

federal search warrant to search the package.  The package

contained approximately 400 grams of psilocybin.

    Bolino further stated that a United States postal inspector,

wearing the uniform of a United States postal carrier, would

deliver the package to 804 Midway Drive in Batavia on July 13,

1994, and attempt to obtain a signature from the occupant of that

address.  According to the affidavit, postal carrier Bill Dahl had

observed mail addressed to Jodi Davis and Jodi Carlson delivered to

804 Midway Drive.  Bolino conducted a computer search of the

Secretary of State's data base and located a Jodi Carlson at 804

Midway Drive in Batavia.  The affidavit further contained a

description of the residence, obtained by Sergeant Mark Henry of

the Illinois State Police.  Henry also observed a vehicle parked at

the residence and discovered that it was registered to Allan

Carlson of Hudson, Wisconsin.  Bolino requested an anticipatory

search warrant to be executed only upon the condition that the

package was delivered by the United States postal inspector to 804

Midway Drive in Batavia and accepted by an occupant of the

residence.  The affidavit ends with the statement that "This Search

Warrant Shall Not Be Executed Unless All Of The Above Conditions

Are Complied With."  The affidavit is signed by Bolino and the

judge.

    With the affidavit, Bolino submitted a complaint for a search

warrant, in which he described the residence and asked for

permission to search for and seize (1) psilocybin mushrooms or

substances containing psilocybin mushrooms; (2) paraphernalia used

in the manufacture, processing, delivery, and/or use of psilocybin

or substances containing psilocybin mushrooms; (3) any and all

records of drug sales; (4) items indicative of residency and/or

control of the above-described premises; (5) pagers with memory

features, conventional and cellular telephones with memory/speed

dial-redial features, answering machines, computers, and other

electronic devices; and (6) books, records, receipts, notes,

ledgers, and other papers relating to the transportation, ordering,

purchase, and distribution of substances covered under the Illinois

Controlled Substances Act (720 ILCS 570/100 et seq. (West 1994)).

The warrant was issued in accordance with the complaint, describing

the residence at 804 Midway Drive and authorizing a search of that

residence for the items described in the complaint.  The warrant

was issued at 9:25 a.m. on July 13, 1994, and executed at 10:35

a.m. that same day.

    The State filed a response to the motion to suppress in which

it argued that in People v. Martini, 265 Ill. App. 3d 698 (1994),

this appellate district had found anticipatory search warrants to

be constitutionally valid.  The Appellate Court, Third District,

later held in People v. Ross, 267 Ill. App. 3d 711 (1994), that,

although anticipatory search warrants passed constitutional muster,

they are not permitted under the relevant Illinois statute, section

108--3 of the  Code of Criminal Procedure of 1963 (the Code) (725

ILCS 5/108--3 (West 1994)).  (The statute has since been amended,

effective August 18, 1995, to include language that would permit

anticipatory warrants.  See 725 ILCS 5/108--3 (West Supp. 1995).)

The State argued that the trial court should follow Martini and

find that anticipatory warrants are valid.  Alternatively, the

State argued that, if the trial court followed Ross, the court

should apply the statutory good-faith exception to the exclusionary

rule--sections 114--12(b)(1) and (b)(2) of the Code (725 ILCS

5/114--12(b)(1), (b)(2) (West 1994)).  Defendant filed a response

in which she argued that Martini addressed the validity of

anticipatory warrants only under the state and federal

constitutions and that Ross was the only published case that

considered the statutory validity of anticipatory warrants.  The

trial court followed Martini and denied the motion to suppress.

    Seven days after the trial court denied the motion, the

supreme court affirmed Ross (People v. Ross, 168 Ill. 2d 347

(1995)), ruling that anticipatory search warrants are not permitted

by section 108--3.  Defendant filed a motion to reconsider, asking

the trial court to reexamine its ruling in light of Ross.  The

trial court granted the motion and suppressed the evidence obtained

pursuant to the invalid warrant.  The State filed a motion to

reconsider, arguing that the court should apply the good-faith

exception.  The court denied the motion on March 12, 1996.  the

State then filed a notice of appeal and a certificate of

impairment.

    On appeal, the State argues that the trial court erred in

suppressing the evidence recovered pursuant to the anticipatory

search warrant because the officers relied in good faith on the

warrant.  We agree.  An anticipatory search warrant is a warrant

that is based on an affidavit showing probable cause that at some

future time evidence of a crime will be at a certain place.  Ross,

168 Ill. 2d at 350; 2 W. LaFave, Search & Seizure §3.7(c), at 362

(3d ed. 1996).  This court has previously adopted the majority view

that anticipatory search warrants are constitutional.  See Martini,

265 Ill. App. 3d 698; People v. Galdine, 212 Ill. App. 3d 472

(1991) (collecting cases).  As previously stated, the Appellate

Court, Third District, later held that, although constitutionally

permissible, anticipatory warrants were not permitted by section

108--3 (Ross, 267 Ill. App. 3d at 715), and the supreme court

agreed (Ross, 168 Ill. 2d at 354).  In Ross, the supreme court

initially determined that section 108--3 was ambiguous.  The State

had argued that the plain language of the statute would allow an

anticipatory warrant, while defendant argued that the plain

language of the statute required that a crime must have been

committed before a warrant could issue.  The supreme court stated

that both constructions of the statute were reasonable and evenly

plausible.  The court then looked to legislative intent and

determined that defendant's construction of the statute was

correct.  Thus, the court declared the warrant invalid and upheld

the suppression of the evidence.  Ross, 168 Ill. 2d at 351-54.

    Nevertheless, Ross did not consider whether the good-faith

exception to the exclusionary rule was applicable.  In People v.

Nwosu, 284 Ill. App. 3d 538 (1996), the Appellate Court, First

District, was faced with this issue and found the good-faith

exception applicable.  In Nwosu, as in this case, the anticipatory

warrant was obtained and executed before either the third district

or the supreme court had declared such warrants to be statutorily

invalid.  Nwosu relied primarily on Illinois v. Krull, 480 U.S.

340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), in which the Supreme

Court extended the good-faith exception to a situation in which the

officers relied on a statute authorizing a warrantless

administrative search and the statute was later declared

unconstitutional.  The Nwosu court concluded that there was no

difference between applying the good-faith exception to a search

pursuant to a statute later declared unconstitutional and a search

pursuant to a statute later found to be ambiguous.  Nwosu, 284 Ill.

App. 3d at 543.  However, in People v. Krueger, 175 Ill. 2d 60, 70-

76 (1996), the supreme court agreed with our holding in People v.

McGee, 268 Ill. App. 3d 32 (1994), that the Krull good-faith

exception is incompatible with our state constitutional guarantee

against unreasonable invasions of privacy (Ill. Const. 1970, art.

I, §6).  Pursuant to Krueger, the supreme court vacated Nwosu and

ordered the first district to reconsider its decision.  171 Ill. 2d

578.  Krueger does not affect our analysis because, while we agree

with the first district that the good-faith exception should apply

in this situation, we find that Nwosu erred in relying on Krull.

Both Krueger and Krull involved searches based on statutes that

were later declared unconstitutional.  Here, the statute was not

invalidated; it was merely interpreted as not permitting

anticipatory search warrants.  Krueger and Krull were concerned

with statutes that authorized unconstitutional searches and

seizures, while this case involves anticipatory search warrants,

which have already been found to be constitutional.  Here, the

officers were relying on a warrant, the type of which was later

declared invalid pursuant to a statutory interpretation.

Therefore, we find that a traditional good-faith analysis, pursuant

to United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S.

Ct. 3405 (1984), is appropriate.  (In Krueger, the supreme court

reiterated that the Leon good-faith exception is still valid in

Illinois.  See Krueger, 175 Ill. 2d at 76.)

    The Supreme Court first articulated the good-faith exception

to the exclusionary rule in Leon and its companion case,

Massachusetts v. Sheppard, 468 U.S. 981, 82 L. Ed. 2d 737, 104 S.

Ct. 3424 (1984).  The court held that evidence should not be

excluded when obtained by the police in objective good-faith

reliance on a subsequently invalidated search warrant.  Leon, 468

U.S. at 922, 82 L. Ed. 2d at 698, 104 S. Ct. at 3420; Sheppard, 468

U.S. at 987-88, 82 L. Ed. 2d at 743, 104 S. Ct. at 3427.  In Leon,

the police relied on a warrant that was ultimately found to be

unsupported by probable cause.  In Sheppard, the police relied on

a warrant that was defective in that it varied from the warrant

affidavit and misstated the items that could be seized.  The police

relied on assurances from the trial judge that he had corrected the

warrant form and that it authorized the search they requested.  In

both cases the court found that the evidence should not be

suppressed because the police acted in objective good faith in

obtaining the warrants and were entitled to rely on them.

    Our supreme court adopted Leon in People v. Stewart, 104 Ill.

2d 463, 477 (1984), and the legislature enacted a statutory form of

the good-faith exception (725 ILCS 5/114--12(b)(1), (b)(2) (West

1994)).  The supreme court has stated that the statute codifies

Leon (People v. Turnage, 162 Ill. 2d 299, 306 (1994)), although the

statute is worded somewhat differently.  Section 114--12(b)(1)

provides that the court should not suppress otherwise admissible

evidence if it was seized by a peace officer acting in good faith.

The statute then provides two definitions of good faith.  The one

applicable to this case provides:

         " 'Good faith' means whenever a peace officer obtains

    evidence:

         (i) pursuant to a search or an arrest warrant obtained

    from a neutral and detached judge, which warrant is free from

    obvious defects other than non-deliberate errors in

    preparation and contains no material misrepresentation by any

    agent of the State, and the officer reasonably believed the

    warrant to be valid[.]"  725 ILCS 5/114--12(b)(2)(i) (West

    1994).

    We believe this case falls within the parameters of the good-

faith exception both under the Leon/Sheppard test and the statutory

definition.  Applying the Leon/Sheppard test, the police acted in

objective good-faith reliance on a search warrant, the type of

which was later found to be invalid.  Applying the statutory

definition, the police obtained a warrant from a neutral and

detached judge, the warrant was free from obvious defects

(anticipatory warrants were not yet declared invalid), contained no

material misrepresentations, and the officers could have reasonably

believed that the warrant was valid.  In fact, it is difficult to

imagine a more compelling situation for application of the good-

faith exception.  Here, when the police obtained the warrant, the

only case law on anticipatory warrants upheld them as valid.

Further, the supreme court specifically stated in Ross that it

would be reasonable to interpret the statute as allowing

anticipatory warrants and that such an interpretation was equally

as plausible as determining that the statute did not permit

anticipatory warrants.  Therefore, the police and the court were

relying on case law upholding the constitutionality of anticipatory

warrants and a statutory interpretation that the supreme court

found to be reasonable.  Thus, it is beyond question that the

police were acting in objective good faith when they procured the

warrant.

    Further, in Leon the court stated that the purpose of the

exclusionary rule is to deter police misconduct rather than to

punish the errors of magistrates and judges (Leon, 468 U.S. at 916,

82 L. Ed. 2d at 694, 104 S. Ct. at 3417) and that "suppression of

evidence obtained pursuant to a warrant should be ordered only on

a case-by-case basis and only in those unusual cases in which

exclusion will further the purposes of the exclusionary rule"

(Leon, 468 U.S. at 918, 82 L. Ed. 2d at 695, 104 S. Ct. at 3418).

For two reasons that are immediately apparent, excluding the

evidence in this case would in no way deter police misconduct.

First, there was no police misconduct.  The police had direction

from the appellate court that anticipatory warrants were

permissible.  Second, anticipatory warrants are now statutorily

valid.  Following the third district's opinion in Ross, the

legislature amended the statute to include language that would

allow for anticipatory warrants.   See 725 ILCS 5/108--3 (West

Supp. 1995).  The amended version of the statute became effective

on August 18, 1995.  Suppressing the evidence in this case would

not deter police misconduct and thus would not further the purposes

of the exclusionary rule.  Professor LaFave has stated that "there

is one situation in which it is quite clear--and, unquestionably,

quite appropriate--that the officer's good faith should prevail

even though the warrant is definitely invalid: where the invalidity

is grounded in a court decision handed down after the warrant was

issued."  (Emphasis in original.)  1 W. LaFave, Search & Seizure

§1.3(f), at 92 (3d ed. 1996).  Although one could argue that here

the warrant's invalidity was grounded in the statute itself and not

in the court's decision, it was unsettled until the Ross decision

how the statute should be interpreted, and the supreme court found

both interpretations to be reasonable.

    Leon identified four situations in which the good-faith

exception should not be applied: (1) where the affiant misleads the

judge or magistrate by using information he knew was false or would

have known was false except for a reckless disregard for the truth;

(2) where the issuing judge or magistrate wholly abandons his

judicial role; (3) where the warrant affidavit is so lacking in

probable cause that official belief in the existence of probable

cause would be entirely unreasonable; and (4) where the warrant is

so facially deficient that the executing officers cannot reasonably

presume it to be valid.  Leon, 468 U.S. at 923, 82 L. Ed. 2d at

698-99, 104 S. Ct. at 3421.  We find none of these exceptions

applicable to the facts of this case.

    As further support for our approach to this issue as opposed

to the first district's analysis, we note that the Supreme Court of

Missouri also used a Leon analysis in the same situation.  In State

v. Sweeney, 701 S.W.2d 420 (Mo. 1985), the court was faced with the

same issue that our supreme court was in Ross: whether anticipatory

search warrants were permissible under its statutory search warrant

provisions.  The Sweeney court ultimately declined to address the

issue because it concluded that, even if anticipatory warrants were

statutorily impermissible, the Leon good-faith exception would

apply.  After concluding that reasonable men could differ as to the

meaning of the statute, the court held that, assuming the warrant

was invalid under the statute, the exclusionary rule would not bar

the introduction of evidence seized by officers who reasonably

relied on the warrant.  The court further found that none of the

four Leon exceptions applied and that the trial court properly

admitted evidence "seized by officers acting in good faith on what

they reasonably believed was a valid search warrant."  Sweeney, 701

S.W.2d at 426.

    Finally, defendant has suggested that the officers could not

in good faith rely on the warrant because it was not even valid as

an anticipatory warrant.  The warrant authorized a search of 804

Midway Drive in Batavia for the items previously mentioned.

However, the warrant did not condition its execution upon the

officers first delivering the package.  With no citation of

authority, defendant argues that the warrant should not be read in

light of the warrant affidavit because it is the warrant itself

that authorizes the search.  The law is contrary to defendant's

position.  We have held that reference to the warrant affidavit is

permissible in determining the validity of the warrant.  People v.

Bauer, 102 Ill. App. 3d 31, 34 (1981).  In United States v.

Moetamedi, 46 F.3d 225 (2d Cir. 1995), the court considered whether

an anticipatory search warrant was invalid because the conditions

precedent to its execution were not stated in the warrant.  The

court concluded that such a warrant is valid as long as two

conditions are met: (1) clear, explicit, narrowly drawn conditions

for the warrant's execution are in the affidavit that applies for

the warrant and (2) the conditions are satisfied before the warrant

is executed.  Moetamedi, 46 F.3d at 229; see also United States v.

Tagbering, 985 F.2d 946, 950 (8th Cir. 1993) (reference to warrant

affidavit proper when conditions precedent to the execution of the

anticipatory warrant are stated in the affidavit rather than the

warrant and the affidavit was signed by the judge who issued the

warrant).  Here, the warrant affidavit listed the condition that

the warrant would not be executed unless the package was delivered

to 804 Midway Drive in Batavia, Illinois, and accepted by an

occupant of that residence.  Further, the warrant affidavit was

signed by the judge who issued the warrant.  Defendant does not

dispute that the officers did not search the residence until after

the package was delivered.  Consistent with the approach taken in

Moetamedi and Tagbering, we do not believe the warrant was invalid

because the warrant itself failed to state the conditions precedent

for its execution.  Therefore, we reject defendant's argument that

the officers could not in good faith rely on the warrant.

    In sum, we hold that the good-faith exception to the

exclusionary rule applies when the police rely on an anticipatory

search warrant that was issued before such warrants were declared

to be statutorily invalid.  Accordingly, we find that the trial

court erred in suppressing the evidence obtained pursuant to the

anticipatory warrant.

    The judgment of the circuit court of Kane County is reversed,

and the cause is remanded for further proceedings consistent with

this opinion.

    Reversed and remanded.

    GEIGER, P.J., and COLWELL, J., concur.