dissenting:
I dissent, believing that the rule of constitutional law confirmed in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, should be applied retroactively.
The majority observes that, traditionally, judicial decisions are applied retroactively. It notes, however, that changes in constitutional doctrine call for a case-by-case determination about retroactive application. (Linkletter v. Walker (1965), 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731.) Where the nation’s highest court does an about face and overrules previous doctrine the decision should usually operate prospectively only, because police and defendants cannot be expected to have anticipated the new ruling. (See 3 W. LaFave, Search and Seizure sec. 11.5, at 694 (1978).) But Franks was not a departure from prior law, and there is no reason to abandon the traditional rule of retroactive application.
The United States Supreme Court first isolated the issue of whether a defendant may challenge an affidavit for a warrant, sufficient on its face to show probable cause, by producing evidence showing that the allegations in the affidavit are fabricated in Rugendorf v. United States (1964), 376 U.S. 528, 11 L. Ed. 2d 887, 84 S. Ct. 825. The court did not announce the constitutional rule in that case but assumed that the defendant could go beyond the four corners of the affidavit. (376 U.S. 528, 532, 11 L. Ed. 2d 887, 891, 84 S. Ct. 825, 828.) In the years following, litigants developed an impressive record of lower court decisions on the issue, and the consensus emerged that a defendant could challenge an affidavit that was facially sufficient by going beyond its four comers. See United States v. Lee (4th Cir. 1976), 540 F.2d 1205; United States v. Luna (6th Cir. 1975), 525 F.2d 4; United States v. Armocida (3d Cir. 1975), 515 F.2d 29; United States v. Belculfine (1st Cir. 1974), 508 F.2d 58; United States v. Damitz (9th Cir. 1974), 495 F.2d 50; United States v. Marihart (8th Cir. 1974), 492 F.2d 897; United States v. Carmichael (7th Cir. 1973), 489 F.2d 983; United States v. Thomas (5th Cir. 1973), 489 F.2d 664; United States v. Harwood (10th Cir. 1972), 470 F.2d 322; United States v. Dunnings (2d Cir. 1969), 425 F.2d 836; McConnell v. State (1972), 48 Ala. App. 523, 266 So. 2d 328; Davenport v. State (Alaska 1973), 515 P.2d 377; State v. Payne (1976), 25 Ariz. App. 454, 544 P.2d 671; Theodor v. Superior Court (1972), 8 Cal. 3d 77, 501 P.2d 234, 104 Cal. Rptr. 226; People v. Arnold (1974), 186 Colo. 372, 527 P.2d 806; State v. Boyd (Iowa 1974), 224 N.W.2d 609; State v. Melson (La. 1973), 284 So. 2d 873; Commonwealth v. Reynolds (1977), 374 Mass. 142, 370 N.E.2d 1375; State v. Luciow (1976), 308 Minn. 6, 240 N.W.2d 833; State v. Nanoff (1972), 160 Mont. 344, 502 P.2d 1138; State v. Baca (N.M. App. 1973), 84 N.M. 513, 505 P.2d 856; People v. Alfinito (1965), 16 N.Y.2d 181, 211 N.E.2d 644, 264 N.Y.S.2d 243; State v. Wright (1973), 266 Or. 163, 511 P.2d 1223; Commonwealth v. Hall (1973), 451 Pa. 201, 302 A.2d 342; State v. Sachs (1975) , 264 S.C. 541, 216 S.E.2d 501; State v. Bankhead (1973), 30 Utah 2d 135, 514 P.2d 800; State v. Dupaw (1976) , 134 Vt. 451, 365 A.2d 967; State v. Lehman (1973), 8 Wash. App. 408, 506 P.2d 1316.
Some States clung to the rule that the defendant could not before trial challenge the veracity of the affidavits presented to the magistrate, even though it was highly unlikely that the defendant, or anyone, would be in a position to challenge the affidavits when they were presented to the magistrate. (See, e.g., Liberto v. State (1970), 248 Ark. 350, 451 S.W.2d 464; State v. Lamb (1972), 209 Kan. 453, 497 P.2d 275; Tucker v. State (1966), 244 Md. 488, 224 A.2d 111; Wood v. State (Miss. 1975), 322 So. 2d 462; State v. Harris (1975), 25 N.C. App. 404, 213 S.E.2d 414; Brown v. State (Okla. Crim. App. 1977), 565 P.2d 697; Owens v. State (1965), 217 Tenn. 544, 399 S.W.2d 507; Phenix v. State (Tex. Crim. App. 1972), 488 S.W.2d 759.) The Illinois Supreme Court adopted that rule in People v. Bak (1970), 45 Ill. 2d 140, and did not address the issue again except in People v. Stansberry (1971), 47 Ill. 2d 541, 544, a year after the Bak decision. This was prior to the large number of cases in other jurisdictions holding the other way. The Bak rule was, therefore, ripe for correction.
When Franks was decided, it was not an unexpected or radical shift in the preexisting law. Instead, as part of the normal, evolutionary process of constitutional law, the United States Supreme Court confirmed the rule the majority of jurisdictions had considered and adopted. Franks not only rejected the Illinois version of the rule, but vindicated the position taken by those who, like the defendant, had tried at trial and on appeal to convince Illinois to renounce the rule of Bak. To make Franks prospective only is to once again hold a defendant to the outmoded Bak rule in the face of overwhelming authority to the contrary. For these reasons, the traditional rule of retroactive application should apply.
But even under the majority’s analysis there should be retroactive application. I agree that in determining retro-activity, the following factors should be considered: the purpose of the constitutional rule, the extent of reliance on past standards, and the effect on the administration of justice. (Stovall v. Denno (1967), 388 U.S. 293, 297, 18 L. Ed. 2d 1199, 1203, 87 S. Ct. 1967, 1970.) The principal emphasis is placed on purpose. But the purpose of the fourth amendment’s exclusionary rule is twofold: to deter illegal police conduct and to prevent contamination of the judicial process with evidence seized in violation of the Bill of Rights. (Stone v. Powell (1976), 428 U.S. 465, 484, 49 L. Ed. 2d 1067, 1081-82, 96 S. Ct. 3037, 3047-48.) I believe that the majority confuses the second justification, often referred to as the “imperative of judicial integrity” (1 W. LaFave, Search and Seizure sec. 1.1, at 17 (1978)), with a concern over the integrity of the fact-finding process. The latter is never at issue in a fourth amendment case; the former always is whenever courts are asked to be “accomplices in the willful disobedience of a Constitution they are sworn to uphold” (Elkins v. United States (1960), 364 U.S. 206, 223, 4 L. Ed. 2d 1669, 1681, 80 S. Ct. 1437, 1447). When both of the underlying policies of the exclusionary rule are considered, it is clear that the overall purpose of the rule is frustrated by denial of retroactivity.
What makes this case different from prior exclusionary-rule retroactivity cases is that it is not a simple good-faith violation of the Constitution which is at issue here. (See United States v. Peltier (1975), 422 U.S. 531, 536, 45 L. Ed. 2d 374, 380, 95 S. Ct. 2313, 2317.) This is not some technical reclassification or reformulation of doctrine far removed from the often violent and unpredictable world of day-to-day law enforcement. Instead we are dealing with an allegation that police intentionally misrepresented the facts in presenting an affidavit to a magistrate for a warrant so as to avoid the constitutional mandate of demonstrable probable cause. In simpler terms, this case asks us what is to be done if police officers are not truthful with the courts. What untruths have been told cannot now be untold, but if evidence seized as a consequence of official fabrication is used to convict Herbert Laws, the reputation of the courts of this State will be harmed, and mendacity will be exalted above due process.
Nor can police reliance justify prospective application only of Franks. The State argues that, in light of Bak, the search warrant was properly issued and police officers could rely upon it. But as the appellate court noted in this case, “It is absurd to construe the Bak decision as an invitation to law enforcement agents to perjure themselves.” (People v. Laws (1980), 82 Ill. App. 3d 417, 423.) The fourth amendment declares that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” That prerequisite would be meaningless if the oath could be pequred. Falsifying the warrant application is a fourth amendment violation, and the officer must have known it. No court has ever suggested otherwise. He must also have known that perjury is against public policy, a felony under Illinois law (Ill. Rev. Stat. 1979, ch. 38, par. 32 — 2). The Bak decision did not approve what the officer here allegedly did; it only established a procedural rule making it unlikely that the officer would be caught.
“I knew I was doing wrong, but I believed I would get away with it” is not the sort of reliance that courts need honor. To apply Franks only prospectively would lead police officers to believe that they can profitably violate the fourth amendment as long as they are imaginative enough to stay one jump ahead of the courts in the methods used. On the contrary, the exclusionary rule is a better deterrent when police expect that in the end the rule will catch up with clearly unconstitutional tactics whether or not they have yet been expressly condemned by the courts, and even if they have so far been quietly practiced successfully. The need for general deterrence of unconstitutional conduct, as opposed to deterrence merely of conduct already condemned by the courts, leads me to the view that we should apply Franks retroactively in this case.
As for the administration of justice, retroactive application of Franks will add little to the burdens of the trial courts. A well-established avenue already exists for raising all fourth amendment issues before trial in a motion to suppress, so no new procedures are necessary here. While Franks put conditions on challenges to affidavits, the defendant has no objection to being subjected to those conditions and asks merely for the opportunity to file a motion meeting the Franks standards, an opportunity I think he should be given. In some instances the authorities may need to produce informers or other evidence they did not anticipate having to produce when the warrant was obtained. But, since the defendant has the burden of establishing the knowing falsity of the affidavit, his burden is likely to be at least as great as that of the police. And, if the defendant is unable to satisfy his burden, the police will not have to do anything.
An anomaly created by the decision here is that Jerome Franks received the benefit of the rule which bears his name but Herbert Laws will not. Both were tried in State courts following searches only a few months apart, both were in States adhering to the obsolete “four-corners” rule, both were stymied at trial by that rule in efforts to challenge the affidavit for the search warrant. Because Franks moved through the appellate process quickly, he was fortunate enough to get to the United States Supreme Court first and so won relief; Laws was doomed to a slower pace and is now to be denied relief. It is largely a matter of chance that the police were held to the command of the fourth amendment in Franks rather than here. As the late Mr. Justice Douglas put it, “Equal justice does not permit a defendant’s fate to depend upon such a fortuity.” United States v. Peltier (1975), 422 U.S. 531, 543, 45 L. Ed. 2d 374, 385, 95 S. Ct. 2313, 2320 (Douglas, J., dissenting).
I would hold the Franks rule retroactive. The Constitution does not require that those whose appeals have been decided be given another chance to relitigate fourth amendment issues (Stone v. Powell (1976), 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037); so finality requires that we apply Franks only to those cases in which the issue was raised or still can be raised in the trial court and which are pending there or on appeal.