specially concurring:
I respectfully specially concur. In this case, no fourth-amendment violation occurred. Although defendant was seized, the seizure was proper under the community-caretaking doctrine. See People v. Luedemann, 222 Ill. 2d 530, 546, 857 N.E.2d 187, 197 (2006) (“Courts use the term ‘community caretaking’ to uphold searches or seizures as reasonable under the fourth amendment when police are performing some function other than investigating the violation of a criminal statute”); People v. Damian, 374 Ill. App. 3d 941, 944-45, 873 N.E.2d 1, 5 (2007) (officer checking on the well-being of an individual was engaged in community-caretaking functions when he observed actions by the defendant that gave the officer probable cause to arrest him).
I write separately to note my disagreement with the majority’s decision to forgo an analysis of whether the fourth amendment was violated, instead determining only whether, assuming a violation of the fourth amendment occurred, the exclusionary rule should apply.
The majority finds that “[ajbsent police misconduct, the exclusionary rule does not apply.” 395 Ill. App. 3d at 194. This appears, at first blush, to be a logical extension of Herring, 555 U.S. at 137, 172 L. Ed. 2d at 502, 129 S. Ct. at 698 (holding that the exclusionary rule did not apply where a negligent bookkeeping error by a police employee in another county resulted in the arrest of the defendant without probable cause or a warrant). However, I have two concerns: (1) the United States Supreme Court has consistently held that whether the fourth amendment has been violated and whether exclusion is the appropriate sanction for the violation are separate issues; and (2) the proposed test leaves unclear the conduct that should be examined when determining whether “misconduct” occurred and deprives the trial courts and law-enforcement personnel of guidance as to what is and is not permissible under the fourth amendment.
A fourth-amendment violation does not always require that evidence be suppressed. See Leon, 468 U.S. at 906-07, 82 L. Ed. 2d at 687-88, 104 S. Ct. at 3411-12 (holding that the exclusionary rule would not be applied where the evidence was obtained by officers acting in reasonable reliance on a search warrant issued by a detached, neutral magistrate even though the search warrant was subsequently found to be unsupported by probable cause). In fact, whether the fourth amendment has been violated and whether exclusion is the appropriate sanction for the violation are separate issues. See Leon, 468 U.S. at 906, 82 L. Ed. 2d at 688, 104 S. Ct. at 3412, quoting Illinois v. Gates, 462 U.S. 213, 223, 76 L. Ed. 2d 527, 538-39, 103 S. Ct. 2317, 2324 (1983) (“Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is ‘an issue separate from the question whether the [f]ourth[-a]mendment rights of the party seeking to invoke the rule were violated by police conduct’ ”); Arizona v. Evans, 514 U.S. 1, 10, 131 L. Ed. 2d 34, 44, 115 S. Ct. 1185, 1191 (1995) (same); see also People v. Sutherland, 223 Ill. 2d 187, 227, 860 N.E.2d 178, 208 (2006) (exclusion of evidence is a separate issue from legality of the search).
“The exclusionary rule operates as a judicially created remedy designed to safeguard against future violations of [f]ourth[ajmendment rights through the rule’s general deterrent effect.” Evans, 514 U.S. at 10, 131 L. Ed. 2d at 44, 115 S. Ct. at 1191. The exclusionary rule should apply only where exclusion will result in appreciable deterrence and where the benefit of deterrence outweighs the cost. Herring, 555 U.S. at 140, 144, 172 L. Ed. 2d at 504-05, 507, 129 S. Ct. at 700, 702 (also noting the purpose of the exclusionary rule is to “deter deliberate, reckless, or grossly negligent conduct, or in some circumstances, recurring or systemic negligence”).
The majority here appears to combine the two analyses — whether the fourth amendment was violated and whether the exclusionary rule should apply. At first, the majority appears to simply assume a fourth-amendment violation occurred. 395 Ill. App. 3d at 199 (finding “the trooper’s activation of his overhead emergency lights did not constitute police misconduct, even if the trial court were correct that this action constituted a violation of the fourth amendment”). But when the majority examines whether “misconduct” occurred that would justify the application of the exclusionary rule, the majority examines the reasonableness of the trooper’s conduct. 395 Ill. App. 3d at 199-200 (noting that activating the lights was “prudent,” “appropriate” and important for the safety of the officer and others). However, reasonableness is the primary concern of a fourth-amendment analysis. See People v. Salinas, 383 Ill. App. 3d 481, 491, 891 N.E.2d 884, 892 (2008). The relevant factors of an exclusionary-rule analysis are whether exclusion would have a deterrent effect — a part of which is examining the conduct at issue and whether it is deterrable — and whether the benefit of exclusion outweighs the cost. Herring, 555 U.S. at 141, 172 L. Ed. 2d at 504-05, 129 S. Ct. at 700. This blending of the two analyses — one constitutional and one judicially created — by the majority is incorrect.
In fact, the majority’s reasoning is circular. How can the court determine if activating the overhead lights was “misconduct” without conducting the fourth-amendment analysis? In some instances, depending on the facts, activating the overhead light may constitute “misconduct” and other times it may not.
Further, and assuming that by examining “misconduct” the majority means examining whether the conduct was deliberate, reckless, or grossly negligent, the majority bypasses an examination of whether the fourth amendment has been violated. The courts and police officers benefit from having judicial decisions articulating what is and is not permissible under the fourth amendment. In fact, if courts bypass a fourth-amendment analysis enough times, it would be difficult for a defendant to show errors arising from recurring negligence. See Herring, 555 U.S. at 144, 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (providing that the exclusionary rule serves to deter, in some circumstances, recurring or systemic negligence).
Finally, the conduct in this case, even had it violated the fourth amendment, was not negligent conduct or conduct based on misinformation as was the case in Herring. This was deliberate conduct. Here, the choices and actions were those of Trooper Brunnworth and, had those choices and actions been improper, could be deterrable. See People v. Estrada, 394 Ill. App. 3d 611, 628 (2009) (involving the search of a parked and locked vehicle whose recent occupant was seized absent any articulable suspicion; the appellate court refused to relax the exclusionary rule and distinguished Herring on the ground that the officer’s “choices and actions” were his own and not “impelled by administrative negligence or misinformation”).
Because the trooper’s conduct did not violate the fourth amendment, I nonetheless concur.