People v. Holmes

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Appellate Court Date: 2016.02.18
09:22:04 -06'00'

People v. Holmes, 2015 IL App (1st) 141256

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption DAVID HOLMES, Defendant-Appellee.

District & No. First District, Fifth Division
Docket No. 1-14-1256

Filed November 25, 2015
Rehearing denied December 31, 2015

Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-11423; the
Review Hon. Dennis J. Porter, Judge, presiding.

Judgment Affirmed.

Counsel on Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal Carol L. Gaines, and Paul J. Connery, Assistant State’s Attorneys, of
counsel), for the People.

Amy P. Campanelli, Public Defender, of Chicago (Eileen T. Pahl,
Assistant Public Defender, of counsel), for appellee.

Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Presiding Justice Reyes and Justice Lampkin concurred in the
judgment and opinion.
 OPINION

¶1 Defendant, David Holmes, was arrested when a Chicago police officer observed a
revolver in his waistband. After placing defendant under arrest, police also discovered that he
did not have a Firearm Owner’s Identification (FOID) card, and defendant was subsequently
charged with, inter alia, two counts of aggravated unlawful use of a weapon (AUUW) for
carrying a firearm without a valid FOID card (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(C)
(West 2012)).
¶2 Following defendant’s arrest, the Illinois Supreme Court issued its decision in People v.
Aguilar, 2013 IL 112116. Thereafter, defendant filed a motion to quash arrest and suppress
evidence with respect to the two FOID card counts. He argued that his arrest was invalid, as
the probable cause for his arrest was based on the portion of the AUUW statute found
unconstitutional in Aguilar. After a hearing, the trial court granted defendant’s motion.
¶3 The State appeals, arguing the trial court erred by granting defendant’s motion to quash
arrest and suppress evidence. For the following reasons, we affirm.

¶4 I. BACKGROUND
¶5 In June 2012, the State charged defendant with two counts of AUUW for carrying an
uncased, loaded, and immediately accessible firearm (720 ILCS 5/24-1.6(a)(1), (a)(2),
(a)(3)(A) (West 2012)), and two counts of AUUW for carrying a firearm without a valid
FOID card (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(C) (West 2012)). Following the decision
in Aguilar, the State conceded that the two counts based on subsection (a)(3)(A) for carrying
an uncased, loaded, and immediately accessible weapon (counts I and III) should be
dismissed. The State entered a nolle prosequi on those counts.
¶6 In January 2014, defendant filed a motion to quash his arrest and suppress evidence1
with respect to the two remaining AUUW counts, alleging that his arrest violated his right to
be free from unreasonable search and seizure under the state and federal constitutions. He
argued that police lacked probable cause to believe he was committing a crime. Defendant
noted the decision in Aguilar and asserted that the good-faith exception to the exclusionary
rule did not apply where police were enforcing an unconstitutional statute. In support of his
assertion, defendant cited to People v. Carrera, 203 Ill. 2d 1 (2002).
¶7 A hearing on defendant’s motion commenced in February 2014. At the hearing, Chicago
police officer Barrera testified that he was working near the 63rd Street Beach at
approximately 9 p.m. on June 8, 2012, when he observed that defendant had a revolver
sticking out of his waistband. Barrera approached defendant, told him to place his hands on
his head, and then reached into defendant’s waistband and removed the revolver. Barrera’s
partner placed defendant under arrest. After defendant was arrested, another officer
researched defendant’s FOID card status. Barrera conceded that before arresting defendant,
he did not know any information about defendant.
¶8 During arguments, defense counsel asserted that no probable cause existed “for a
violation of any law,” as the officer was investigating defendant for carrying a concealed gun

1
Defendant later orally amended the motion to also ask for relief from the evidence seized.

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 in public, and the Aguilar court had found that portion of the AUUW statute unconstitutional.
Defense counsel likened defendant’s case to Carrera, positing that the supreme court in that
case “basically ruled that officers cannot use the good faith exception when that good faith
exception is based on an unconstitutional statute.” The State responded that the gun was in
plain view, the police officers’ actions were not unreasonable, and Aguilar did not invalidate
the FOID card provision of the AUUW statute.
¶9 The trial court held the officer lacked probable cause for defendant’s arrest given that, if a
statute is void ab initio, it is as if it never existed. The court noted defendant’s case was “kind
of unfortunate because the officer didn’t do anything wrong at the time” and the officer could
have effectuated a valid Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)) and inquired right
away whether defendant had a FOID card. However, the officer did not do so. Thus, the court
granted defendant’s motion.
¶ 10 The State filed a motion to reconsider the quashed arrest, arguing, inter alia, that
Carrera,2 like Illinois v. Krull, 480 U.S. 340 (1987), did not apply because those cases
involved unconstitutional statutes that authorized warrantless searches, whereas defendant’s
case involved a criminal statute that was only found partially unconstitutional. The State also
asserted that, even if the trial court found that Krull and Carrera applied, the court should
nonetheless apply the good-faith exception set forth in United States v. Leon, 468 U.S. 897
(1984). The State argued that the court should refuse to exclude evidence by the officers who
reasonably relied on a then-valid statute when they arrested defendant. In his response,
defendant reiterated that the police lacked probable cause to arrest him in light of Aguilar, as
a criminal statute that is unconstitutional is void ab initio.
¶ 11 Following an April 2014 hearing, the trial court denied the State’s motion to reconsider.
Thereafter, the State filed a notice of appeal and a certificate of substantial impairment from
the trial court’s February 2014 and April 2014 orders pursuant to Illinois Supreme Court
Rule 604(a)(1) (eff. Feb. 6, 2013).

¶ 12 II. ANALYSIS
¶ 13 On appeal, the State argues that the trial court erred by granting defendant’s motion to
suppress evidence. The State maintains that Carrera is distinguishable and the court should
have recognized a good-faith exception to the exclusionary rule, as the officer was operating
under the law in effect at the time of defendant’s arrest and defendant’s fourth amendment
rights were not violated. U.S. Const., amend. IV. Further, the State contends, the good-faith
exception should be applied pursuant to section 114-12(b)(2)(ii) of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/114-12(b)(2)(ii) (West 2012)). Defendant responds
that the court properly granted his motion to suppress evidence, as it is well settled that a
finding of unconstitutionality on any ground renders a statute void ab initio and the
good-faith exception to the exclusionary rule may not be applied to statutes that are void ab
initio.
¶ 14 We apply a two-part standard of review when reviewing a ruling on a motion to quash
arrest and suppress evidence. People v. Almond, 2015 IL 113817, ¶ 55. We afford great
deference to the trial court’s findings of fact and will reverse those findings only where they

2
In its motion, the State cited to the appellate decision in People v. Carrera, 321 Ill. App. 3d 582
(2001).

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 are against the manifest weight of the evidence. Id. However, we review de novo the court’s
ultimate ruling on whether the evidence should be suppressed. Id.
¶ 15 Before turning to the parties’ arguments, we wish to set forth the pertinent United States
Supreme Court and Illinois Supreme Court decisions governing this appeal.

¶ 16 A. The Supreme Court’s Decisions in Leon and Krull
¶ 17 Both the fourth amendment of the United States Constitution and the Illinois Constitution
of 1970 guarantee the right to be free from unreasonable searches and seizures. U.S. Const.,
amend. IV; Ill. Const. 1970, art. I, § 6. Where evidence is obtained in violation of the fourth
amendment, the exclusionary rule precludes the use of such evidence against the defendant in
a criminal proceeding. United States v. Calandra, 414 U.S. 338, 347 (1974) (citing Weeks v.
United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961)).
¶ 18 In Leon, the Supreme Court concluded that the exclusionary rule did not bar the use of
evidence obtained by officers who acted in reasonable reliance on a search warrant issued by
a detached and neutral magistrate that was ultimately found to be unsupported by probable
cause. Leon, 468 U.S. at 900, 913. The Supreme Court explained the exclusionary rule was
designed to deter police misbehavior and, further, it could discern no basis for believing that
excluding evidence seized pursuant to a warrant would have a significant deterrent effect on
the issuing judge or magistrate. Id. at 916. Moreover, the Supreme Court explained, where an
officer’s conduct is objectively reasonable, “ ‘excluding the evidence will not further the
ends of the exclusionary rule in any appreciable way; for it is painfully apparent that … the
officer is acting as a reasonable officer would and should act in similar circumstances.
Excluding the evidence can in no way affect his future conduct unless it is to make him less
willing to do his duty.’ ” Id. at 919-20 (quoting Stone v. Powell, 428 U.S. 465, 539-40 (1976)
(White, J., dissenting)). Our supreme court subsequently adopted the Leon good-faith
exception in People v. Stewart, 104 Ill. 2d 463, 477 (1984).
¶ 19 Following Leon, the Supreme Court in Krull extended the good-faith exception to
encompass the situation wherein an officer acts in objectively reasonable reliance on a statute
authorizing warrantless administrative searches, which is ultimately found to violate the
fourth amendment. Krull, 480 U.S. at 342, 346. The statute at issue in Krull required a person
engaged in certain types of automotive business to obtain a license from the Illinois Secretary
of State, and a licensee was required to permit state officials to inspect his records “ ‘at any
reasonable time during the night or day’ ” and to allow officials to examine the premises of
his business to determine the accuracy of his records. Id. at 342-43 (quoting Ill. Rev. Stat.
1981, ch. 95½, ¶ 5-401(e)). Pursuant to the statute, an officer entered the respondents’
automobile wrecking yard and discovered that three vehicles were stolen and the
identification number on a fourth had been removed. Id. at 343. The respondents were
charged with various criminal violations, and they filed a motion to suppress the evidence
seized from the yard, noting a federal court had found the statute authorizing warrantless
administrative searches of licensees unconstitutional. Id. at 344. The Supreme Court
explained that applying “the exclusionary rule to suppress evidence obtained by an officer
acting in objectively reasonable reliance on a statute would have as little deterrent effect on
the officer’s actions as would the exclusion of evidence when an officer acts in objectively
reasonable reliance on a warrant.” Id. at 349. Further, the Supreme Court reasoned, it had
been given no basis for believing legislators were inclined to act in contravention of fourth

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 amendment principles, nor had the respondents offered any reason to believe that applying
the exclusionary rule would have a significant deterrent effect on legislators enacting
unconstitutional statutes. Id. at 350-52.

¶ 20 B. The Illinois Supreme Court’s Decision in Krueger
¶ 21 Our supreme court, however, subsequently declined to adopt the Krull good-faith
exception, concluding the Illinois Constitution barred its application. People v. Krueger, 175
Ill. 2d 60, 61 (1996). In Krueger, the supreme court considered a “no-knock” statute that
allowed a judge to issue a warrant authorizing an officer to enter a person’s home without
first knocking and announcing his office when an occupant of the building had previously
possessed firearms within a certain period of time. Id. at 64 (quoting 725 ILCS 5/108-8(b)(2)
(West 1994)). After concluding the statute violated the defendant’s constitutional rights to be
free from unreasonable searches and seizures, the Krueger court turned to the State’s
argument that the good-faith exception recognized in Krull should apply. Id. at 69-70. In
reviewing the Krull decision, the supreme court cited extensive portions of Justice
O’Connor’s dissent. Id. at 72. It noted that Justice O’Connor had persuasively distinguished
Leon on two grounds. Id. First, Justice O’Connor stated that a “ ‘powerful historical basis’ ”
existed “ ‘for the exclusion of evidence gathered pursuant to a search authorized by an
unconstitutional statute.’ ” Id. (quoting Krull, 480 U.S. at 362 (O’Connor, J., dissenting,
joined by Brennan, Marshall and Stevens, JJ.)). Such statutes were “ ‘the core concern of the
Framers of the Fourth Amendment,’ ” and the exclusionary rule had also “regularly been
applied to suppress evidence gathered under unconstitutional statutes.” Id. (quoting Krull,
480 U.S. at 362-63 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.))
Second, the supreme court noted, Justice O’Connor found the aforementioned history
showed that legislators often pose a serious threat to fourth amendment values. Id. Justice
O’Connor’s dissent also pointed out that applying the good-faith exception would provide “a
‘grace period’ for unconstitutional search and seizure legislation.” Id.
¶ 22 The Illinois Supreme Court thus departed from its tradition of applying the lockstep
doctrine and following Supreme Court decisions in fourth amendment cases. Id. at 74. The
Krueger court explained that Illinois’s exclusionary rule had “always been understood to bar
evidence gathered under the authority of an unconstitutional statute [citations], so long as that
statute purported to authorize an unconstitutional search or seizure (see Michigan v.
DeFillippo, 443 U.S. 31 *** (1979) (recognizing a substantive-procedural distinction not at
issue here; specifically holding that the fourth amendment exclusionary rule did not apply
where an ordinance was held unconstitutional on vagueness grounds)).” Id. at 74-75. Thus,
the supreme court found that adopting the good-faith exception in Krull “would drastically
change this state’s constitutional law.” Id. at 75. Further, in balancing the legitimate aims of
law enforcement against citizens’ rights to be free from unreasonable governmental intrusion,
the supreme court concluded citizens’ rights prevailed. Id. The Krueger court stated that
recognizing a good-faith exception to the state exclusionary rule would “provide a grace
period for unconstitutional search and seizure legislation, during which time our citizens’
prized constitutional rights can be violated with impunity.” Id.

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¶ 23 C. The Illinois Supreme Court’s Decision in Carrera
¶ 24 Subsequent to Krueger, the supreme court issued its decision in Carrera, in which it
refused to apply the good-faith exception to the defendant’s case based on the void ab initio
doctrine. Carrera, 203 Ill. 2d at 16. In Carrera, Chicago police officers arrested the
defendant outside of Chicago pursuant to an extraterritorial jurisdiction arrest statute that was
later declared unconstitutional and void ab initio for violating the single-subject rule. Id. at 3,
8, 16. The defendant filed a motion to quash his arrest and suppress evidence, maintaining
the officers lacked authority to arrest him outside of Chicago. Id. at 7. On appeal, the State
argued, inter alia, that the good-faith exception to the exclusionary rule should apply, as the
officers did not violate the defendant’s substantive constitutional rights when effectuating the
extraterritorial arrest. Id. at 13. While acknowledging the State’s arguments, the Carrera
court stated it was electing to resolve the case “on narrower grounds,” finding the void ab
initio doctrine dictated the result it reached. Id. at 13-14. It noted that a statute that is
unconstitutional is void ab initio and confers no right, imposes no duty, and offers no
protection. Id. at 14. Instead, “[i]t is as though no such law had ever been passed.” Id. The
Carrera court further stated that the void ab initio doctrine applied to both statutes deemed
unconstitutional for violating substantive constitutional guarantees as well as statutes adopted
in violation of the single-subject clause of the constitution. Id. at 14-15.
¶ 25 Our supreme court thus refused to apply the good-faith exception to the defendant’s case,
concluding that to do so “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 Carrera court explained that giving effect to the
historical fact that the amendment existed when the defendant was arrested “would
effectively resurrect the amendment and provide a grace period *** during which our
citizens would have been subject to extraterritorial arrests without proper authorization.” Id.
¶ 26 Justice Garman authored a dissent in which Justices Fitzgerald and Thomas joined. The
dissent argued that the majority did not answer the narrow question posed by the State, i.e.,
“whether the good-faith exception to the exclusionary rule applies when officers relied on an
apparently valid statute when they made an arrest that, while unlawful, did not violate the
individual’s state or federal constitutional rights.” Id. at 17 (Garman, J., dissenting, joined by
Fitzgerald and Thomas, JJ.). According to the dissent, the majority obscured the distinction
“between quashing an arrest because it was not authorized by a valid statute and applying the
exclusionary rule to suppress evidence that was obtained in violation of a defendant’s right to
be free from unreasonable search and seizure.” Id. The dissent agreed that the statute upon
which the officers relied was void ab initio and explained that the effect of finding the statute
unconstitutional on single-subject grounds was to return the law to its status quo ante. Id. at
18. Thus, to resolve the State’s question, the dissent stated that the majority should have
applied the earlier version of the statute and common law regarding extraterritorial arrests.
Id. The dissent noted that the officers’ actions in arresting the defendant violated the
preexisting statute. Id. at 23. However, “the question of whether a search or arrest is legal is
entirely separate from the question of whether evidence derived from that search or arrest
should be excluded.” Id. at 22. According to the dissent, the exclusionary rule applied (1)
when suppressing the evidence would further its purpose of deterring police misconduct or
(2) where giving effect to search and seizure legislation that violated the fourth amendment
or state constitution would permit citizens’ constitutional rights to be violated. Id. The dissent

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 concluded that although the seizure of the defendant was unlawful, the exclusionary rule did
not apply because the seizure did not violate the defendant’s state or federal constitutional
rights, nor did the officers willfully violate the governing statute. Id. at 24.
¶ 27 Further, the dissent opined that even if the exclusionary rule applied, the evidence should
have been admitted based on the officers’ good-faith reliance on the then-applicable statute.
Id. at 25. The dissent explained as follows.
“Our concern in Krueger was with a statute authorizing police conduct that was, in
itself, unconstitutional. This case does not pose the same threat to liberty as the statute
at issue in Krueger, which purported to authorize unconstitutional no-knock entries
by the police when executing a search warrant. Recognizing a good-faith exception
for action taken by the police pursuant to a statute authorizing certain extraterritorial
arrests, but enacted in violation of the single subject rule, would not subject the
citizens of Illinois to ‘a grace period *** during which time *** constitutional rights
can be violated with impunity.’ ” Id. at 25-26 (quoting Krueger, 175 Ill. 2d at 75-76).

¶ 28 D. Whether the Evidence Should Be Suppressed in This Case
¶ 29 Having reviewed the aforementioned decisions, we conclude the trial court properly
suppressed the evidence in this case. As previously detailed, our supreme court in Carrera
stated that a facially invalid statute is void ab initio. Id. at 14 (majority opinion). In other
words, “[i]t is as though no such law had ever been passed.” Id. The Carrera court further
stated that the void ab initio doctrine applies both to statutes that “are unconstitutional
because they violate substantive constitutional guarantees” and statutes that are
unconstitutional because they violate the single-subject clause. Id. at 15. The Carrera court
then went on to state that “to apply 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.
¶ 30 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. The supreme court in Aguilar
found the portion of the AUUW statute pursuant to which defendant was arrested
unconstitutional on its face. Thus, that statute was void ab initio. See id. at 14. As the
Carrera court explained, applying the good-faith exception to defendant’s case would “run
counter to *** void ab initio jurisprudence.” Id. at 16. Further, the Carrera court stated that
giving “legal effect” to the fact that the prior statute existed in the defendant’s case would
“effectively resurrect” the statute “and provide a grace period *** during which our citizens
would have been subject to extraterritorial arrests without proper authorization.” Id. The
same concern with a “grace period” is implicated on the facts of our case, where individuals
would have continued to be subject to arrests for violating the portion of the AUUW statute
that was invalidated in Aguilar.
¶ 31 The State contends that Carrera is distinguishable. It maintains that the defendants in
Carrera, Krueger, and Krull were each subject to fourth amendment violations based on
statutes that gave police unconstitutional search and seizure authority. It is true that the
statutes at issue in Carrera, Krueger, and Krull were all procedural statutes providing
expanded authority to law enforcement officials regarding either the search or arrest of
individuals, whereas the AUUW statute was a substantive statute. However, the supreme
court in Carrera drew no distinction between procedural and substantive statutes. To the

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 contrary, the Carrera court used expansive language, stating that the void ab initio doctrine
applied both to legislative acts that were found unconstitutional for violating substantive
constitutional guarantees as well as those adopted in violation of the single-subject clause. Id.
at 15. The Carrera court further stated that applying “the good-faith exception would run
counter to our *** 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.
¶ 32 We acknowledge, as the State points out, that the Code allows for the admission of
evidence obtained pursuant to an arrest for a substantive statute that is later invalidated.
Specifically, section 114-12(b)(2)(ii) of the Code provides that evidence shall not be
suppressed where a court determines the evidence was seized by an officer acting in good
faith, and “good faith” is defined, in relevant part, as existing when an officer “obtains
evidence *** pursuant to a warrantless search incident to an arrest for violation of a statute or
local ordinance which is later declared unconstitutional or otherwise invalidated.” 725 ILCS
5/114-12(b)(2)(ii) (West 2012). Our supreme court has stated that section 114-12(b)(2) is a
codification of Leon. People v. Carlson, 185 Ill. 2d 546, 560 (1999). In Carlson, the supreme
court applied the good-faith exception to the use of an invalid anticipatory search warrant. Id.
at 561. The Carlson court cited to section 114-12(b)(2)(i) of the Code, which defines “good
faith” as existing when an officer obtains evidence pursuant to a search or arrest warrant
from a neutral and detached judge, which the officer reasonably believed to be valid. Id. at
560 (quoting 725 ILCS 5/114-12(b)(2)(i) (West 1996)).
¶ 33 The Carrera court did not mention section 114-12(b)(2)(ii) of the Code in its opinion,
and its broad language regarding the void ab initio doctrine made no exception for evidence
obtained in a search incident to an arrest for a statute later found unconstitutional. We further
note that the statute was not mentioned in Krueger. While it can be argued that section
114-12(b)(2)(ii) has been invalidated by Krueger and Carrera, that has not explicitly been
done. We do not reach that question here as we are bound to follow the majority opinion in
Carrera. We leave it to further jurisprudence as to how the conflict between the void ab
initio doctrine and the statute in question should ultimately be resolved.
¶ 34 The State also relies on DeFillippo, positing that it is “especially relevant” as it was cited
in Krueger, which was in turn cited by the supreme court recently in People v. LeFlore, 2015
IL 116799. In DeFillippo, the Supreme Court concluded that suppression was not warranted
where a defendant was arrested for violating an ordinance that was later found
unconstitutionally vague on its face. DeFillippo, 443 U.S. at 35, 37-38. The Supreme Court
in that case concluded that probable cause existed for the defendant’s arrest, rejecting the
idea that the officer should have been required to anticipate that a court would subsequently
find the ordinance unconstitutional. Id. at 37-38. The DeFillippo Court explained that
“[p]olice are charged to enforce laws until and unless they are declared unconstitutional,” and
“[s]ociety 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. The
DeFillippo Court also distinguished prior cases in which it had held the exclusionary rule
required suppression of evidence obtained in searches that were carried out in reliance on
statutes purportedly authorizing those searches without probable cause or a warrant. Id. at 39.
The Court explained that those statutes, “by their own terms, authorized searches under
circumstances which did not satisfy the traditional warrant and probable-cause requirements
of the Fourth Amendment.” Id. By contrast, the Court explained, the ordinance in

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 respondent’s case “did not directly authorize the arrest or search.” Id. Instead, the officer had
probable cause to believe the respondent was committing an offense in his presence, the
State’s general arrest statute authorized the respondent’s arrest independent of the ordinance,
and the subsequent search “was valid because it was incidental to that arrest.” Id. at 40.
¶ 35 We note that the Seventh Circuit Court of Appeals also recently concluded that an officer
had probable cause to search the car of a defendant, who was found guilty of possessing a
firearm as a felon, even though Chicago’s handgun ban and Illinois’s ban against the
possession of guns outside the home were subsequently invalidated. United States v. Charles,
801 F.3d 855, 858, 861 (7th Cir. 2015). There, a witness called 911 to report that she saw a
gun in the defendant’s waistband, and a dispatcher broadcasted that information over the
police radio. Id. at 858. The Seventh Circuit noted that at the time, Chicago had a
comprehensive handgun ban and Illinois prohibited carrying concealed guns in public unless
they were unloaded and enclosed in a container. Id. at 860-61. The Charles court concluded
that the police had probable cause to believe that the defendant had violated the Chicago
ordinance and Illinois statute and that evidence of those crimes could be found in his car. Id.
at 861. The Seventh Circuit explained that although Chicago’s ban and Illinois’s
concealed-carry law were both subsequently invalidated, “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 (1979). Although [the defendant] 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.
¶ 36 We recognize that both DeFillippo and Charles contain facts similar to our case.
Nonetheless, we are bound by the supreme court’s decision in Carrera and the void ab initio
doctrine. As previously detailed, the supreme court explicitly stated that a statute that is
unconstitutional on its face is void ab initio and that applying the good-faith exception
“would run counter to our *** void ab initio jurisprudence–specifically, that once a statute is
declared facially unconstitutional, it is as if it had never been enacted.” Carrera, 203 Ill. 2d at
16. As a result of the Illinois void ab initio doctrine, we are therefore 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.
¶ 37 The State also relies on LeFlore, claiming that although the supreme court in that case
considered the good-faith exception in the context of judicial precedent, its discussion of the
exception is nonetheless instructive in our case. The State quotes various portions of the
LeFlore decision, such as its reiteration that the exclusionary rule has been restricted to those
“unusual cases” in which “it can achieve its sole objective: to deter future fourth amendment
violations.” (Internal quotation marks omitted.) LeFlore, 2015 IL 116799, ¶ 22. However, the
fact that LeFlore involved invalidated judicial precedent and not an invalidated statute is a
crucial distinction, as the Carrera decision makes clear that statutes that are unconstitutional
on their face are void ab initio and that the good-faith doctrine cannot be applied to statutes
that are void ab initio. See Carrera, 203 Ill. 2d at 15-16. Accordingly, LeFlore does not
support the State’s position that reversal is warranted in this case.

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¶ 38 In sum, we conclude the trial court properly granted defendant’s motion to quash his
arrest and suppress evidence.

¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, we affirm the trial court’s judgment.

¶ 41 Affirmed.

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