People v. Glorioso ( 2010 )

No. 2--08--0271 Filed: 2-16-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 07--CF--888
)
KEITH A. GLORIOSO, ) Honorable
) Fred L. Foreman,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BURKE delivered the opinion of the court:
Defendant, Keith A. Glorioso, was charged with unlawful possession of a substance
containing cocaine (720 ILCS 570/402(c) (West 2006)). He moved to suppress evidence seized
under a warrant to search his house. After a hearing, the trial court ruled that the search had violated
the "knock and announce" rule, but that, under Hudson v. Michigan, 547 U.S. 586, 165 L. Ed. 2d 56,
126 S. Ct. 2159 (2006), the exclusionary rule did not apply. After a stipulated bench trial, defendant
was convicted and sentenced to 24 months' probation. On appeal, he contends that, although the
evidence cannot be excluded under the fourth amendment to the United States Constitution (U.S.
Const., amend. IV), it should be excluded under article I, section 6, of the Illinois Constitution (Ill.
Const. 1970, art. I, §6). We affirm.
On March 13, 2007, shortly before midnight, police officers executed a warrant to search
defendant's house in Round Lake Park. After being charged, defendant moved to suppress the
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evidence seized in the search. His motion raised a number of grounds, most of which were rejected
and are not pertinent on appeal. We summarize the relevant evidence from the hearing.
Bonnie Palka, defendant's girlfriend, testified that shortly before the police entered
defendant's home, she, three young people, and her dog were downstairs. Defendant was upstairs.
Palka heard a noise from the deck and looked through a window blind. The police then pounded on
the door, kicked it in, and entered the house, with their weapons drawn. The officers knocked Palka
down; one officer put a gun to her head and told her not to move. Without provocation and despite
her pleas, an officer shot her dog once in the face, then three times in the rear as the dog fled.
Eventually, an animal control officer euthanized the dog.
Officer Daniel Kaiser testified that Officer Wayne Wilde knocked on the door and
simultaneously announced that the police were present. As Wilde was knocking, Kaiser saw Palka
peeking out the window; one officer yelled, "compromise," and another officer immediately used
a battering ram to force the door open. Kaiser explained that "[i]f people know we are coming up
to the house it is a lot more dangerous once we get to the house," and, further, evidence could be
destroyed. However, the police had no information that anyone inside had weapons. Kaiser was the
first officer to enter. He saw the dog lunge at him, baring its teeth; Kaiser jabbed at the dog with a
rifle, but the dog lunged at him again, so Kaiser shot it three times in rapid succession. The dog ran
away. Kaiser denied ever pushing Palka or holding a gun to her head.
Wilde testified that after he knocked on the door, as he was announcing the police presence,
another officer yelled "compromise"; Wilde backed away; and an officer used a battering ram to
force entry. As Wilde entered, he heard three shots in succession. Entering, Wilde saw blood on
the floor and the dog under the kitchen table. Wilde testified that he never pointed a gun at Palka.
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Officer Gilberto Rivera, who entered the home immediately after Kaiser, testified consistently with
the other officers' accounts of the entry and Kaiser's encounter with the dog.
After arguments, the trial court held that the search violated the fourth amendment's knock-
and-announce rule. The court found that the parties' testimony agreed on several crucial facts, e.g.,
that the police knocked and announced their presence before they entered; that they entered by force
immediately after one of them saw Palka looking out the window; and that, by the State's concession,
no more than two or three seconds elapsed from the knocking and announcing until the forced entry.
The court initially rejected defendant's contention that the police executed the search unreasonably
or "outrageously" by shooting and fatally wounding Palka's dog. The court credited the officers'
testimony that the dog was a threat to them; therefore, it found that they could legally use force in
response (see 725 ILCS 5/108--8(a) (West 2006)).
In holding the search invalid, the court then reasoned as follows. Generally, police officers
seeking to enter a dwelling must knock on the door and announce their identity and purpose before
attempting to enter by force. See Richards v. Wisconsin, 520 U.S. 385, 387, 137 L. Ed. 2d 615, 620,
117 S. Ct. 1416, 1418 (1997). However, a "no-knock" entry is permissible if the police reasonably
suspect that knocking and announcing would be dangerous or futile or would inhibit their
investigation, such as by allowing the destruction of evidence. Richards, 520 U.S. at 394, 137 L. Ed.
2d at 624, 117 S. Ct. at 1421. Here, the officers forcibly entered the home no more than three
seconds after knocking and announcing their presence. This short wait was unreasonable absent
exigent circumstances. See United States v. Banks, 540 U.S. 31, 41, 157 L. Ed. 2d 343, 355, 124
S. Ct. 521, 528 (2003). No such exigency had been shown here. Palka's glance out the window did
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not indicate that anyone would have attempted to resist the officers' entry, and the mere possibility
of violence or the destruction of evidence created no emergency.
The court then considered whether the illegality required suppressing the evidence seized in
the search. Noting that our supreme court has applied the exclusionary rule to violations of the
knock-and-announce rule (see People v. Condon, 148 Ill. 2d 96, 108 (1992); People v. Ouellette, 78
Ill. 2d 511, 521-22 (1979)), the court reasoned as follows. In Hudson, the Supreme Court held that
the federal exclusionary rule does not apply to violations of the knock-and-announce rule. Therefore,
the only issue was whether article I, section 6, of the Illinois Constitution required suppression. With
limited exceptions, our supreme court has construed article I, section 6, in "lockstep" with the
Supreme Court's construction of the fourth amendment. See People v. Caballes, 221 Ill. 2d 282, 302
(2006). In the only published case considering whether the lockstep doctrine applied to knock-and-
announce violations, the Fourth District stated persuasively in dictum that, if confronted with the
issue, the supreme court would adopt Hudson and thus refuse to apply the exclusionary rule. People
v. Chapman, 379 Ill. App. 3d 317, 325 (2007). Therefore, the court denied the motion to suppress.
After he was convicted and sentenced, defendant timely appealed.
On appeal, defendant argues that the trial court erred in refusing to apply the exclusionary
rule to the violation of article I, section 6, of the Illinois Constitution. Defendant urges that, under
the "limited lockstep approach" (Caballes, 221 Ill. 2d at 313), the supreme court would (and ought
to) extend greater remedies under the state constitution for violations of the knock-and-announce rule
than has the Supreme Court under the federal constitution. Defendant relies primarily on People v.
Krueger, 175 Ill. 2d 60 (1996), which held that a statute authorizing no-knock searches (725 ILCS
5/108--8(b)(2) (West 1994)) was unconstitutional and that article I, section 6, required excluding
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evidence that law enforcement officers seized in reliance on the statute. Defendant notes that
Krueger deliberately parted ways with the Supreme Court's decision in Illinois v. Krull, 480 U.S.
340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), which extended the good-faith rule of United States
v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3430 (1984), to evidence seized under a statute
that allowed unconstitutional warrantless administrative searches. Krueger, 175 Ill. 2d at 70-71.
The State responds that we should not depart from lockstep here, because the supreme court
has restricted such departures to the unusual situations in which the language of the state constitution
or the intent of its framers supports construing article I, section 6, more broadly than the Supreme
Court has construed the fourth amendment, the model for article I, section 6. The State maintains
that nothing in the history of article I, section 6, or its construction by the supreme court
demonstrates such special circumstances. For the reasons that follow, we agree with the State.
Because the issue involved is purely one of law, our review is de novo. See Caballes, 221
Ill. 2d at 289. We start with article I, section 6, itself. It reads:
"The 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.
The exclusionary rule, of course, does not appear in either the federal fourth amendment or
article I, section 6; it is a judicially created remedy for violations of these provisions. Generally, in
deciding on the scope of article I, section 6, our supreme court has followed the Supreme Court's
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construction of the fourth amendment. However, it has not always been clear or consistent in its
approach. For our purposes, Krueger and Caballes are the principal authorities, so we turn to them.
In Krueger, the court had to decide whether to apply the exclusionary rule to evidence that
law enforcement officers seized, per warrant, under the authority of a statute that permitted "no-
knock" searches in specified circumstances (725 ILCS 5/108--(b)(2) (West 1994)). The trial court
held that the search violated the defendant's federal and state constitutional rights. The court
declared the statute unconstitutional and excluded the evidence. In doing so, it rejected the State's
argument that, under Krull, the evidence should be admitted because the officers relied in good faith
on a statute later declared unconstitutional. Krueger, 175 Ill. 2d at 63.
On direct appeal to the supreme court, the State again relied on the good-faith rule announced
in Krull. After holding that the statute was unconstitutional, the supreme court then ruled that Krull's
"good-faith exception does not comport with article I, section 6." Krueger, 175 Ill. 2d at 70.
Two aspects of the supreme court's rejection of Krull are especially important here. First,
although Krueger involved a statute authorizing no-knock searches, the court's disapproval of a
good-faith exception to the exclusionary rule centered not on the type of search authorized but on
the fact that a statute created that authority. Second, in declining to apply Krull to article I, section
6, the court focused not on the distinctive characteristics of that constitutional guarantee but on
perceived infirmities in the reasoning of the "bare majority" that issued Krull. Krueger, 175 Ill. 2d
at 70.
The court explained that the Krull majority reasoned that the basic purpose of the
exclusionary rule--to deter police misconduct--would not be served by barring the use of evidence
that the police had seized in good-faith reliance on a statute that was only later declared
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unconstitutional. A "major underpinning" of the Krull opinion was the Court's belief that legislatures
are not inclined to act in contravention of fourth amendment values, so that there is no evidence that
the exclusionary rule is "necessary to deter legislators from enacting unconstitutional statutes."
Krueger, 175 Ill. 2d at 71; see Krull, 480 U.S. at 349-52, 94 L. Ed. 2d at 375-77, 107 S. Ct. at 1166-
68. Thus, according to the Court, the slight deterrent effect from applying the exclusionary rule in
such situations was outweighed by the substantial social costs of doing so. Krueger, 175 Ill. 2d at
71; see Krull, 480 U.S. at 352-53, 94 L. Ed. 2d at 377, 107 S. Ct. at 1168-69.
The supreme court noted that Krull created two exceptions to its good-faith rule: (1) where,
in enacting the statute, the legislature wholly abandoned its responsibility to enact constitutional
laws; and (2) where a reasonable officer should have known that the statute was not constitutional.
Krueger, 175 Ill. 2d at 71-72; see Krull, 480 U.S. at 355, 94 L. Ed. 2d at 378-79, 107 S. Ct. at 1170.
The Krueger court followed Justice O'Connor's dissent (joined in whole or part by the other
three dissenters), which criticized applying Leon's good-faith exception not to the decision of a
magistrate issuing a warrant in a particular case but to the act of a legislature passing a statute. This
distinction underlay Justice O'Connor's dissent, and thus it also underlay Krueger's rejection of Krull.
First, as the Krueger court noted, Justice O'Connor pointed out that the Krull doctrine
provided "a 'grace period' for unconstitutional search and seizure legislation, during which time 'the
State is permitted to violate constitutional requirements with impunity.' " Krueger, 175 Ill. 2d at 72,
quoting Krull, 480 U.S. at 361, 94 L. Ed. 2d at 382, 107 S. Ct. at 1173 (O'Connor, J., dissenting,
joined by Brennan, Marshall, and Stevens, JJ.). Indeed, in the very case before the Court, in which
the statute had been held unconstitutional, no effective remedy could be provided. Krueger, 175 Ill.
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2d at 73; see Krull, 480 U.S. at 368, 94 L. Ed. 2d at 387, 107 S. Ct. at 1177 (O'Connor, J., dissenting,
joined by Brennan, Marshall, and Stevens, JJ.).
Second, the Krueger court agreed with Justice O'Connor that history could not support
extending the good-faith doctrine to legislative acts. There was a " 'powerful historical basis' " for
excluding evidence seized under an unconstitutional statute. Krueger, 175 Ill. 2d at 72, quoting
Krull, 480 U.S. at 362, 94 L. Ed. 2d at 383, 107 S. Ct. at 1173 (O'Connor, J., dissenting, joined by
Brennan, Marshall, and Stevens, JJ.). "Statutes authorizing unreasonable searches were the core
concern of the Framers of the Fourth Amendment." Krull, 480 U.S. at 362, 94 L. Ed. 2d at 383, 107
S. Ct. at 1173 (O'Connor, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.). The
Framers did not have a similar fear of judicial officers. Krull, 480 U.S. at 364, 94 L. Ed. 2d at 384,
107 S. Ct. at 1175 (O'Connor, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.).
Moreover, the exclusionary rule had regularly been applied to suppress evidence gathered under
unconstitutional statutes. Krull, 480 U.S. at 364, 94 L. Ed. 2d at 384, 107 S. Ct. at 1174 (O'Connor,
J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.).
Third, the court agreed with Justice O'Connor that the historical distinction between judicial
officers and legislatures is compelling. The former act one case at a time, but a statute " 'sweeps
broadly, authorizing whole classes of searches, without any particularized showing,' " thus affecting
far more people and " 'pos[ing] a greater threat to liberty.' " Krueger, 175 Ill. 2d at 73, quoting Krull,
480 U.S. at 365, 94 L. Ed. 2d at 385, 107 S. Ct. at 1175 (O'Connor, J., dissenting, joined by Brennan,
Marshall, and Stevens, JJ.).
The supreme court acknowledged that it had "long applied the lockstep doctrine to follow
Supreme Court decisions in fourth amendment cases." Krueger, 175 Ill. 2d at 74. However, because
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the court had also long applied the exclusionary rule to evidence gathered under unconstitutional
statutes, following Krull "would drastically change this state's constitutional law." Krueger, 175 Ill.
2d at 75. Whether to do so depended on the application of the traditional test of " 'balanc[ing] the
legitimate aims of law enforcement against the right of our citizens to be free from unreasonable
government intrusion.' " Krueger, 175 Ill. 2d at 75, quoting People v. Tisler, 103 Ill. 2d 226, 245
(1984). Krull failed this balancing test, because it would give the legislature a "grace period" for
violating constitutional rights, and that period "could last for several years and affect large numbers
of people." Krueger, 175 Ill. 2d at 75.
Although Krueger noted that adopting Krull's construction of the exclusionary rule would
depart from long-standing state judicial constructions of the exclusionary rule, it did not rely on
anything distinctive in the language or drafting of article I, section 6, itself. However, that possible
reason for departing from lockstep was discussed in Caballes. There, the Supreme Court had
previously vacated a supreme court opinion and held that a routine canine sniff of a vehicle during
a traffic stop did not violate the fourth amendment. Illinois v. Caballes, 543 U.S. 405, 408-10, 160
L. Ed. 2d 842, 847-48, 125 S. Ct. 834, 837-38 (2005), vacating and remanding People v. Caballes,
207 Ill. 2d 504 (2003). On remand, the supreme court was faced with whether to construe article I,
section 6, similarly. In the course of a lengthy history of the lockstep doctrine, the court reiterated
its statement in Tisler, 103 Ill. 2d at 243, that, because it had for so long generally interpreted article
I, section 6, in conformity with the Supreme Court's construction of the fourth amendment, the
burden was on those who urged deviating from such conformity. Thus, to construe article I, section
6, more expansively than the Supreme Court construed the fourth amendment:
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" '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.' " Caballes, 221 Ill. 2d at 297, quoting
Tisler, 103 Ill. 2d at 245.
According to the court, Krueger "appeared to depart from the lockstep approach" (Caballes,
221 Ill. 2d at 302) without finding anything in the intent of article I, section 6, in support (Caballes,
221 Ill. 2d at 303). However, the court reasoned, Krueger simply had nothing to do with the lockstep
doctrine. The court cited People v. Bolden, 197 Ill. 2d 166, 179-80 (2001), in which it had refused
to " '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 *** [citation].' " Caballes,
221 Ill. 2d at 303. Thus, according to Caballes, "in Krueger, we did not depart from lockstep
interpretation--the challenged statute was unconstitutional under both the state and federal
constitutions. Krueger was a case about remedies." Caballes, 221 Ill. 2d at 303.
At this point, we must note a serious difficulty with both the soundness and the continued
vitality of the court's statement that Krueger did not depart from lockstep. In Krueger, the court
prefaced its explanation of its decision with the following language:
"This court unquestionably has the authority to interpret provisions of our state
constitution more broadly than the United States Supreme Court interprets similar provisions
of the federal constitution. [Citation.] We acknowledge that this court has long applied the
lockstep doctrine to follow Supreme Court decisions in fourth amendment cases. [Citations.]
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We knowingly depart from that tradition here, for the reasons set forth below." (Emphases
added.) Krueger, 175 Ill. 2d at 74.
Neither Caballes nor Bolden explains why, if Krueger did not depart from the lockstep
doctrine, the Krueger court explicitly acknowledged that it was doing just that. We cannot be sure
whether the Caballes and Bolden courts simply overlooked the plain language that we have just
quoted or whether they intended to overrule it by implication. The difference is highly
consequential. If the court simply misread Krueger, then we may assume that it did not choose to
take exclusionary-rule issues out of the general lockstep doctrine; in this event, a party urging an
extension of the state exclusionary rule beyond the limits of the federal one would bear the burden
of showing cause for such an extraordinary deviation from long-standing practice. If, however, the
court did mean to overrule Krueger's statement that exclusionary-rule jurisprudence is subject to the
lockstep doctrine, then the state exclusionary rule becomes much more amenable to judicial
expansion. Decoupling exclusionary-rule doctrine from lockstep considerations would remove the
constraint that the latter places on the former.
The first possibility appears to us to be the more likely of the two. After Krueger, although
before Bolden, the court stated, "Our only recent departure from a lockstep construction of our search
and seizure provision was in People v. Krueger." People v. Cox, 202 Ill. 2d 462, 482 (2002),
overruled on other grounds by People v. Bew, 228 Ill. 2d 122, 130-31 (2008). In People v.
Lampitok, 207 Ill. 2d 231, 240-41 (2003), the court described Krueger's holding as "[t]he narrow
exception we have carved to the lockstep doctrine in the fourth amendment context." Therefore,
even if the court in Bolden intended to overrule Krueger's holding that the state exclusionary rule is
subject to the lockstep doctrine, the court appears to have repudiated that intent later.
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More striking (and more important), in Caballes itself, after the passage that stated that
Krueger had nothing to do with lockstep at all, the court twice treated Krueger as indeed having been
a lockstep case. First, in explaining the various criteria that it had applied over the years to decide
whether to depart from lockstep, the court observed that Krueger implicitly adopted criteria beyond
those listed in Tisler. Caballes, 221 Ill. 2d at 310. Second, the court described its "limited lockstep
approach in Tisler" as having been "modified" in Krueger (and in People v. Washington, 171 Ill. 2d
475 (1996), applying state due process to make freestanding claims of actual innocence cognizable
in state postconviction proceedings, in contrast to federal habeas corpus suits). Caballes, 221 Ill. 2d
at 301, 314. Thus, Caballes itself is hardly consistent on the question of whether the lockstep
doctrine has any bearing on the construction of the state exclusionary rule.
We thus decline to read Caballes and Bolden as taking the state exclusionary rule out of the
constraints of the lockstep doctrine. Krueger unambiguously stated that, to construe the state
exclusionary rule more broadly than the federal rule, a court must find strong reasons to depart from
the long-standing tradition of construing the former in conformity with the latter. Bolden stated
otherwise, and Caballes adopted both positions without explaining the discrepancy. Therefore, we
shall proceed on the premise that, to decide whether article I, section 6, requires suppressing
evidence seized in violation of the knock-and-announce rule, we must first ask whether there are
sufficient grounds to "suddenly change course and go our separate way" (Tisler, 103 Ill. 2d at 245)
by refusing to follow Hudson.
To answer this question, we need to know what circumstances support deviating from
lockstep. That requires resuming our discussion of Caballes. After providing further historical
background (not important here), the court summarized its long-standing practice as a "limited
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lockstep approach." Caballes, 221 Ill. 2d at 309. This approach requires assessing the intent of the
framers of the Illinois Constitution of 1970. Caballes, 221 Ill. 2d at 313. The court continued:
"[B]ased 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 approach] 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.
This passage speaks of the interpretation of the phraseology of article I, section 6, not the
construction of a judicially created remedy that does not appear there (or elsewhere in the Illinois
Constitution). That is not altogether surprising, as the issue in Caballes was the meaning of the
phrase "search and seizure" and not the scope of the exclusionary rule. Nonetheless, reading
Caballes as a whole, we believe that, in a given case, the court will not expand the state exclusionary
remedy beyond the federal one, unless the proponent of the expansion can show either that (1) the
framers of the 1970 constitution intended the expansion; or that (2) denying the expansion would
be antithetical to "state tradition and values as reflected by long-standing case precedent" (Caballes,
221 Ill. 2d at 314). We turn to whether defendant has made such a showing in this case.
In Hudson, the Supreme Court held, by a five to four vote, that the federal exclusionary rule
does not apply to violations of the knock-and-announce requirement. Justice Scalia's opinion for the
majority reasoned that the no-knock rule protected interests separate from those protected by the
warrant requirement and that the deterrence value of excluding evidence that was seized only after
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a facially valid warrant was issued was outweighed by the high social costs of doing so. The
interests protected by the no-knock rule include (1) avoiding violence in supposed self-defense by
the surprised occupant; (2) allowing people to comply and avoid the destruction of property
occasioned by a forcible entry; and (3) protecting those elements of privacy and dignity that can be
destroyed by a sudden entrance. Hudson, 547 U.S. at 594, 165 L. Ed. 2d at 66, 126 S. Ct. at 2165.
However, the knock-and-announce rule has never protected a person's interest in preventing the
government from seeing or taking evidence described in a warrant; the interests violated by the way
in which a proper warrant is executed have nothing to do with the seizure of the evidence. Hudson,
547 U.S. at 594, 165 L. Ed. 2d at 66, 126 S. Ct. at 2165.
The Court identified what it saw as the high costs of applying the exclusionary rule to knock-
and-announce violations. These included (1) the difficulty and potential arbitrariness of applying
the nebulous requirement of a reasonable waiting time and (2) the danger that, in erring on the side
of caution, officers might wait longer than the law requires before entering, leading to preventable
violence or the destruction of evidence. Hudson, 547 U.S. at 595-96, 165 L. Ed. 2d at 66-67, 126
S. Ct. at 2165-66. Against these costs, the Court saw limited deterrence benefits. First, the Court
reasoned, although violating the warrant requirement sometimes produces incriminating evidence
that could not otherwise be obtained, violating the knock-and-announce rule does nothing other than
prevent either the destruction of evidence or dangerous resistance by occupants--and even a
reasonable suspicion of these dangers is sufficient to suspend the knock-and-announce requirement
anyway. Second, deterrence does not require applying the exclusionary rule, as both civil-rights suits
and the increasing professionalism of police forces already provide such deterrence. Hudson, 547
U.S. at 596-99, 165 L. Ed. 2d at 67-69, 126 S. Ct. at 2166-68.
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In dissent, Justice Breyer maintained that the majority was mistaken in both its
characterization of the interests protected by the knock-and-announce rule and its deterrence
analysis. According to Justice Breyer, the distinction between the rule and the warrant requirement
does not hold up: both are highly relevant to the ultimate question of the reasonableness of a search,
and both are "part of the 'centuries-old principle' of special protection for the privacy of the home."
Hudson, 547 U.S. at 621, 165 L. Ed. 2d at 83, 126 S. Ct. at 2181 (Breyer, J., dissenting, joined by
Stevens, Souter, and Ginsburg, JJ.), quoting Georgia v. Randolph, 547 U.S. 103, 115, 164 L. Ed. 2d
208, 222, 126 S. Ct. 1515, 1523 (2006). Furthermore, he reasoned, the social costs that the majority
associated with suppressing evidence because of a knock-and-announce violation are simply "those
that typically accompany any use of the Fourth Amendment's exclusionary principle." (Emphasis
in original.) Hudson, 547 U.S. at 614, 165 L. Ed. 2d at 79, 126 S. Ct. at 2177 (Breyer, J., dissenting,
joined by Stevens, Souter, and Ginsburg, JJ.). As for deterrence, Justice Breyer pointed to the lack
of evidence that civil-rights suits are effective against knock-and-announce violations. Hudson, 547
U.S. at 609-11, 165 L. Ed. 2d at 76-77, 126 S. Ct. at 2174-75 (Breyer, J., dissenting, joined by
Stevens, Souter, and Ginsburg, JJ.). Thus, Justice Breyer would not add knock-and-announce
violations to the narrow class of fourth amendment violations to which the exclusionary rule does
not apply. Hudson, 547 U.S. at 611-12, 165 L. Ed. 2d at 77-78, 126 S. Ct. at 2175-76 (Breyer, J.,
dissenting, joined by Stevens, Souter, and Ginsburg, JJ.).
Only one Illinois opinion has considered the impact of Hudson on the construction of article
I, section 6. In Chapman, the court upheld the trial court's conclusion that the police complied with
the knock-and-announce rule when they searched the defendant's home. Chapman, 379 Ill. App. 3d
at 325. The court then stated in dictum that, given Caballes's reaffirmation of the limited-lockstep
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doctrine, "we believe the Supreme Court of Illinois would likely adhere to Hudson." Chapman, 379
Ill. App. 3d at 325. The court did not further explain its guarded prediction.
Although Chapman's dictum is not especially helpful, we do agree with its conclusion that
the supreme court would not consider Hudson one of the rare instances in which to break out of
lockstep. As noted, the advocate of such a break must show that it is warranted by either (1) the
intent of the framers of article I, section 6, or (2) "state tradition and values as reflected by long-
standing state case precedent." Caballes, 221 Ill. 2d at 314. We do not believe that defendant has
made either showing.
The intent of the constitution's framers may be shown either by the language that they used
or by the debates and committee reports of the constitutional convention. Caballes, 221 Ill. 2d at
297; Tisler, 103 Ill. 2d at 245. Here, because the state exclusionary rule is a judicially created
remedy, as is the federal rule, the language of article I, section 6, does not really show anything.
Defendant has provided us with the debates on the adoption of article I, section 6. Notably, although
there was much discussion of the proposed language that was not borrowed from the fourth
amendment--that concerned with "unreasonable *** invasions of privacy or interceptions of
communications by eavesdropping devices or other means" (Ill. Const. 1970, art. I, §6)--there was
no discussion of the exclusionary rule itself. Specifically, no delegate expressed concern over
whether, when evidence is seized in violation of both the fourth amendment and article I, section 6,
the state remedy should be greater than the federal remedy. (This, of course, explains why the
Krueger court did not cite the framers' intent in deciding that the state exclusionary rule should apply
to evidence seized under a statute that authorizes unconstitutional searches.) Thus, defendant has
not satisfied the first prong of the Caballes inquiry--indeed, he has come up empty.
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We turn to the second prong--long-standing state constitutional law. Here, we find little to
suggest that the supreme court would conclude (or that we ought to conclude) that adopting Hudson
would violate established precedent. Although the supreme court applied the exclusionary rule to
knock-and-announce violations in Ouellette and Condon, the court in each case assumed, without
any discussion, that the exclusionary rule applied under both the federal and the state constitutions.
See Condon, 148 Ill. 2d at 108; Ouellette, 78 Ill. 2d at 521-22. While such an unspoken assumption
was entirely reasonable under the circumstances, it is hardly the stuff of which "state tradition and
values" (Caballes, 221 Ill. 2d at 314) are made. Moreover, because the Condon and Ouellete courts
did not have to decide whether to deviate from fourth amendment precedent in construing article I,
section 6, their opinions say nothing about what they would have done had the Supreme Court
previously decided that the federal exclusionary rule did not apply to knock-and-announce violations.
Thus, to decide whether anything in our case law now requires excluding evidence seized in
violation of the knock-and-announce rule, we must look elsewhere. But when we do, we find little.
Apparently, the only time that the supreme court has deviated from lockstep in its
construction of the state exclusionary rule is Krueger. As we have noted, although that case did
involve an unconstitutional no-knock search, the type of the search was not pertinent to the court's
decision. Rather, that decision was based on the distinction between the actions of a magistrate
issuing a warrant in an individual case and a statute that has the potential to violate the constitutional
rights of many people without any redress. This distinction militates against departing from lockstep
for knock-and-announce violations. Although these infringements of constitutional rights are
committed by police officers rather than magistrates, either type " 'affects one person at a time,' " in
contrast to legislation authorizing unconstitutional searches, which " 'may affect thousands or
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millions and will almost always affect more than one.' " Krueger, 175 Ill. 2d at 73, quoting Krull,
480 U.S. at 365, 94 L. Ed. 2d at 385, 107 S. Ct. at 1175 (O'Connor, J., dissenting, joined by Brennan,
Marshall, and Stevens, JJ.). Moreover, whatever one makes of the debate in Hudson over the
effectiveness of civil suits as relief against violations of the knock-and-announce rule, there is no
doubt that such relief is available. By contrast, as Krueger stressed, no relief is available against a
legislature that has authorized unconstitutional searches and seizures. See Krueger, 175 Ill. 2d at 75.
In a later opinion declining to deviate from its application of Leon to article I, section 6, the
supreme court emphasized the distinction between legislation authorizing unconstitutional searches
and nonlegislative actors authorizing or executing unconstitutional searches. The court held that
evidence seized in good faith via anticipatory search warrants that were unauthorized by statute, but
not unconstitutional, should not be suppressed on that ground. The court distinguished Krueger as
having involved a statute that affirmatively authorized an entire class of unconstitutional searches,
thus triggering the court's long-standing aversion to exposing large numbers of people to
constitutional violations without any recourse. People v. Carlson, 185 Ill. 2d 546, 557-59 (1999).
The supreme court has been unwilling to extend Krueger beyond legislation, and we see
nothing in Krueger that would allow us to extend that opinion to police officers' violation of the
knock-and-announce rule. Therefore, the "narrow exception [that Krueger] carved to the lockstep
doctrine in the fourth amendment context" (Lampitok, 207 Ill. 2d at 240-41) does not support carving
out another exception under the very different circumstances presented here.
Because we conclude that the trial court properly applied Hudson to defendant's state
constitutional argument, we hold that the court did not err in refusing to suppress the evidence seized
in the search of defendant's home. Therefore, the trial court's judgment must stand.
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The judgment of the circuit court of Lake County is affirmed.
Affirmed.
HUTCHINSON, J., concurs.
JUSTICE McLAREN, specially concurring:
I agree with Justice Breyer's dissenting opinion in Hudson. However, we are constrained to
follow the majority's holding in Hudson regarding the ambit of the fourth amendment. Therefore,
I concur in this majority's analysis of the holding in Hudson and the manner in which the Illinois
Supreme Court would resolve this issue on appeal.
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