dissenting:
The majority concludes that the extraterritorial arrest of defendant by Chicago police officers was unlawful because the statute authorizing the arrest was enacted in violation of the single subject requirement of the Illinois constitution. 203 Ill. 2d at 14-17. However, the State, as appellant, has not asked this court to answer the question addressed by the majority. Indeed, the State acknowledges that the arrest was unlawful. The narrow question posed by the State as appellant before this court is 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. I write separately to clarify a distinction that the majority obscures — the difference 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.
As a threshold matter, the majority does not identify the standard of review it applies. Although a trial court’s ruling on a motion to quash arrest and suppress evidence is generally reviewed for manifest error, the parties agree that the issue presented is purely a question of law, subject to de novo review. People v. Krueger, 175 Ill. 2d 60, 64 (1996). As such, defendant has not disputed the facts presented in the State’s brief, nor has defendant questioned the credibility of the officers. Nevertheless, the majority recounts in detail the conflicting testimony before the trial court during the hearing on defendant’s first motion to quash his arrest, at which he argued that the officers lacked probable cause. The trial court denied that motion and defendant did not raise this issue on appeal. It serves no purpose at this stage of the proceedings to recount accusations made by defendant and his wife against the police officers when the accusations were found not credible by the trial court, and particularly when they have absolutely no bearing on the issue we have been asked to decide.
I agree with the majority that the statute upon which the officers relied is void ab initio and that the legislative enactment of which this statute was a part is void in its entirety as a result of the single subject violation (203 Ill. 2d at 14). The majority then notes that harmless error analysis is inappropriate, given the serious nature of single subject clause violations. 203 Ill. 2d at 15.
However, if we were to consider whether or not it is necessary to apply the exclusionary rule in this case, we would not be engaging in harmless error analysis. The effect of declaring the statute unconstitutional on single subject grounds is to return the law to the status quo ante. People v. Ramsey, 192 Ill. 2d 154, 156 (2000). Thus, the resolution of the question posed by the State is governed by the law that existed prior to the enactment of the flawed statute. As such, we must apply the earlier version of section 7 — 4—8 (65 ILCS 5/7 — 4—8 (West 1994)) and the common law of extraterritorial arrests. This does not constitute harmless error analysis; it is simply a matter of determining what remedy, if any, defendant would have been entitled to under previously applicable law.
Defendant suggests that the State has waived its argument regarding the application of the exclusionary rule. Although the State did not include this threshold question in its petition for leave to appeal, I agree with the State that it is necessary to address the applicability of the rule itself before addressing any exceptions to the rule.
The majority disposes of the exclusionary rule issue by citing this court’s decision in People v. Lahr, 147 Ill. 2d 379 (1992), for the proposition that “Illinois law is settled that the exclusionary rule is applicable where the police effectuate an extraterritorial arrest without appropriate statutory authority.” 203 Ill. 2d at 11. Lahr, however, contained no discussion of the exclusionary rule. In fact, the terms “exclusionary rule,” “constitution,” and “fourth amendment” do not appear in the Lahr opinion at all. Lahr involved only common law analysis, not the application of state or federal constitutional principles. The sole issue in Lahr was not whether evidence should be suppressed but, rather, whether the extraterritorial arrest of defendant was valid. Lahr, 147 Ill. 2d at 383.
In Lahr, this court acknowledged the general rule that “municipal and county police officers [have] no authority to arrest a defendant outside the territorial limits of the political entity which appointed them to their office.” Lahr, 147 Ill. 2d at 382. The sole exception to the rule, at common law, was for the fresh pursuit of a suspected felon fleeing the jurisdiction of the arresting officer. Lahr, 147 Ill. 2d at 382. Based on section 107 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 3), which permits citizen’s arrests, the Lahr court created a second exception to the general rule of invalidity of extraterritorial arrests. Lahr merely established that when outside his jurisdiction, a police officer has the same ability to make a valid arrest as any citizen, no more and no less. Lahr, 147 Ill. 2d at 382-83. If an officer making an extraterritorial arrest uses the powers of his office to obtain the evidence justifying the arrest, the arrest cannot be justified as a citizen’s arrest. Lahr, 147 Ill. 2d at 383.
In the present case, the appellate court concluded, based on Lahr and its progeny, that Officer DiGiacomo did use the powers of his office to obtain the evidence that gave him probable cause to arrest defendant and, thus, did not make a valid citizen’s arrest. 321 Ill. App. 3d 582, 593-94. Because the State has abandoned its argument that the arrest was valid as a citizen’s arrest (203 Ill. 2d at 16), Lahr is irrelevant to the issue raised by the State in this appeal. In any event, Lahr tells us nothing about the application of the exclusionary rule or any of its exceptions to evidence gathered by a police officer acting outside his jurisdiction.
The majority did not consider the history of the exclusionary rule and the function it serves before concluding that Lahr settled this issue. The exclusionary rule is a judicially created device designed to protect fourth amendment rights in general. The rule itself is not a constitutional right, and it is not intended to redress the injury to the privacy of the defendant who has been the subject of the illegal search or seizure, for any “[Reparation comes too late.” Linkletter v. Walker, 381 U.S. 618, 637, 14 L. Ed. 2d 601, 613, 85 S. Ct. 1731, 1742 (1965). As the Supreme Court noted in Mapp v. Ohio, the rule safeguards fourth amendment rights by deterring police misconduct. It “ 'compel[s] respect for the constitutional guaranty’ ” of freedom from unreasonable search and seizure “ ‘in the only effectively available way — by removing the incentive to disregard it.’ ” Mapp v. Ohio, 367 U.S. 643, 656, 6 L. Ed. 2d 1081, 1090, 81 S. Ct. 1684, 1692 (1961), quoting Elkins v. United States, 364 U.S. 206, 217, 4 L. Ed. 2d 1669, 1677, 80 S. Ct. 1437, 1444 (1960).
In Illinois, however, this judicially created remedy has been in existence since 1923, when this court declared in People v. Brocamp, 307 Ill. 448 (1923), that “there must, of necessity, be a remedy” when the individual’s “constitutional rights were ruthlessly and unlawfully violated” by a warrantless search of his home. Brocamp, 307 Ill. at 453-55.
The good-faith exception to the exclusionary rule was first articulated by the Supreme Court in United States v. Leon in the context of an officer’s good-faith reliance on a search warrant that was later determined to be unsupported by probable cause. United States v. Leon, 486 U.S. 897, 919-22, 82 L. Ed. 2d 677, 696-98, 104 S. Ct. 3405, 3418-20 (1984). Because the purpose of the exclusionary rule is to deter police misconduct, and because application of the rule will not serve to deter a police officer who is acting in good faith when he conducts a search pursuant to such a warrant, the Court determined that an exception to the rule was warranted. Leon, 486 U.S. at 916-21, 82 L. Ed. 2d at 694-97, 104 S. Ct. at 3417-19 (noting that the exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity”).
This court adopted the Leon good-faith exception in People v. Stewart, 104 Ill. 2d 463, 477 (1984). However, when the Supreme Court later extended the Leon good-faith exception, this court declined to follow. In Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), the Court held that the exclusionary rule does not bar evidence seized by a police officer who reasonably relied, in objective good faith, on a statute authorizing a warrantless administrative search, although the statute was subsequently, held unconstitutional on fourth amendment grounds. Krull, 480 U.S. at 349-50, 94 L. Ed. 2d at 375, 94 L. Ed. 2d at 1167. In Krueger, this court declared a statute allowing police executing a search warrant to make “no-knock” entries under certain circumstances unconstitutional on fourth amendment grounds. Krueger, 175 Ill. 2d at 70. Relying on our own state constitution and the long-standing history of the exclusionary rule in this state, beginning with Brocamp, this court found that the exclusionary rule arising from article I, section 6, of the Illinois constitution provides greater protection than the fourth amendment exclusionary rule:
“We are not 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. We are particularly disturbed by the fact that such a grace period could last for several years and affect large numbers of people. This is simply too high a price for our citizens to pay. We therefore conclude that article I, section 6, of the Illinois Constitution of 1970 prohibits the application of Krull's extended good-faith exception to our state exclusionary rule.” Krueger, 175 Ill. 2d at 75-76.
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. People v. Turnage, 162 Ill. 2d 299, 307 (1994). The exclusionary rule is applicable when suppression of the evidence would further its purpose of deterring further police misconduct (Leon, 468 U.S. at 917, 82 L. Ed. 2d at 695, 104 S. Ct. at 3417; Turnage, 162 Ill. 2d at 307) or, as this court noted in Krueger, when the giving effect to search and seizure legislation that violates the fourth amendment or the state constitution would permit “our citizens’ prized constitutional rights” to be violated with impunity (Krueger, 175 Ill. 2d at 75).
In the present case, however, the 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. The appellate court concluded that the actions of the Chicago police officers when they approached defendant outside his home constituted a seizure. 321 Ill. App. 3d at 590. I agree. However, the seizure itself did not violate defendant’s rights under the state or federal constitutions. Rather, the officers’ actions violated the preexisting statute governing the power of police officers to act outside their assigned district. Unless such a statutory-violation is per se unconstitutional, or the exclusionary rule is applicable to a statutory, as opposed to a constitutional, violation, any evidence obtained as a result of the seizure need not be suppressed.
The Supreme Court of Colorado addressed this issue in People v. Vigil, 729 P.2d 360 (Colo. 1986), where the defendant argued that evidence should be excluded because the Denver police officers who arrested her outside of their jurisdiction violated the state statute governing extraterritorial arrests (8A Colo. Rev. Stat. § 16 — 3—106 (1986)). The court found “implicit” in the statute “the premise that peace officers may not go outside the territorial boundaries of their authority to arrest suspects except in the limited circumstances described.” Vigil, 729 P.2d at 365. The intent of the legislature in enacting the statute was to limit police officers “from exercising their arrest powers and their law enforcement efforts” outside their jurisdiction and to “require that local peace officers be advised and participate in the extraterritorial law enforcement activities of other police officers.” Vigil, 729 P.2d at 365. The Colorado court rejected the idea that violations of the law governing extraterritorial arrests are per se unconstitutional. Vigil, 729 P.2d at 366. The State, as appellant, argued that the exclusionary rule should apply only when evidence is obtained as a result of a violation of the defendant’s constitutional rights and, further, that exclusion should never be available as a remedy for the mere violation of statutory limits on the authority of police officers. Vigil, 729 P.2d at 366. After first acknowledging that when the statute governing extraterritorial arrests has been violated by the police, “evidence obtained as a result of the violation should be suppressed if the violation also infringes a constitutional right of the defendant, such as the right to be free from unreasonable searches and seizures,” the court reasoned that willful disobedience of the statute could also be a basis for the exclusion of evidence. Vigil, 729 P.2d at 366. A two-step analysis is required. First, if officers have exceeded their statutory arrest authority, the court must determine whether the unauthorized arrest is unconstitutional and, as a result, suppression of any illegally seized evidence is warranted on that basis alone. Vigil, 729 P.2d at 366. Second, if there is no constitutional violation, the court must still consider whether the police officers exhibited both a knowing disregard of the territorial boundaries of their authority and a failure to avail themselves of readily available means of legitimizing the extraterritorial arrest, such as seeking the assistance of the local police. Vigil, 729 P.2d at 366. “[Suppression is not foreclosed as a possible remedy for willful violations” of the statute; such violations “will trigger suppression if they are so egregious as to violate the protections against unreasonable searches and seizures.” Vigil, 729 P.2d at 366-67.
In my opinion, this approach guards against violations of a defendant’s rights under the fourth amendment and the Illinois Constitution and against overreaching by the police that falls short of a constitutional violation but is so willful or recurrent that a sanction is required. Applying this approach in the present case, I conclude that the seizure of defendant, while unlawful, did not violate constitutional protections and that there was no willful violation of the governing statute. Indeed, the officers acted entirely in accord with the statute that they reasonably believed to be in effect at the time. Their failure to adhere to an earlier version of the statute that was only later determined to still be in effect cannot, in any sense of the word, be deemed willful.
Such a result is consistent with our prior decisions. Under our case law, the violation of a statute by the police does not necessarily require that any evidence acquired as a result of the violation be excluded. In People v. Harris, 182 Ill. 2d 114, 148-49 (1998), the defendant claimed that he was transferred from the Cook County jail to the custody of the Chicago police department in violation of the Illinois Habeas Corpus Act (735 ILCS 5/10 — 131 (West 1994)) and the County Jail Act (730 ILCS 125/4 (West 1994)). As a remedy for these violations, he sought suppression of statements he made while in the custody of the Chicago police department, although he did not claim that the questioning by the Chicago police itself violated any constitutional right. We concluded that even if the transfer of custody was unlawful, suppression was not the appropriate remedy because neither of the statutes was “aimed at the sort of police misconduct that would warrant suppression of the defendant’s statements.” Harris, 182 Ill. 2d at 150. In the present case, as in Harris, the violation of existing statutory and common law by the police did not violate defendant’s constitutional rights and, therefore, the resulting evidence is not tainted. See, e.g., People v. Burnidge, 178 Ill. 2d 429, 440-42 (1997) (Freeman, C.J., specially concurring, joined by Bilandic, J.) (noting that because no fourth amendment violation occurred, there is no need to apply the exclusionary rule or any of its exceptions in a case involving a question of evidentiary privilege).
Because I conclude that the exclusionary rule does not apply in this situation in the first place, I would not reach the issue of the good-faith exception. However, even if the exclusionary rule were to apply to evidence obtained following an arrest that is constitutionally valid but statutorily unlawful, the officers’ good-faith reliance on the then-applicable statute should permit the evidence to be admitted. Krueger does not require otherwise. 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.” Krueger, 175 Ill. 2d at 75-76.
In sum, I would hold that although the seizure of defendant was unlawful, the exclusionary rule does not apply to the bag containing drugs because the seizure did not violate defendant’s state or federal constitutional rights and because the police did not act in willful disregard of the applicable statute. Even if the exclusionary rule were to apply in this case, I would admit the evidence under the good-faith exception. Therefore, I respectfully dissent.
JUSTICES FITZGERALD and THOMAS join in this dissent.