dissenting:
United States postal inspectors intercepted a package addressed to defendant and containing psilocybin mushrooms (a controlled substance). Before the package was delivered, Illinois State Police requested and obtained a so-called “anticipatory search warrant,” that is, a warrant which authorized police to search defendant’s home only after the contraband had been delivered to and accepted by an occupant of the residence. After the inspector delivered the package, police executed the warrant and seized the illegal mushrooms. The trial court suppressed this evidence but was reversed by the appellate court, which this court now affirms. I dissent.
The warrant at issue was issued and executed before this court’s decision in People v. Ross, 168 Ill. 2d 347 (1985). In that case, we held that anticipatory search warrants were not authorized by section 108 — 3 of the Code of Criminal Procedure, as then in effect. This case presents the related question of whether evidence obtained pursuant to an anticipatory search warrant, issued and executed prior to our decision in Ross, is admissible against a defendant under the good-faith exception to the exclusionary rule.
Article I, section 6, of the Illinois Constitution of 1970 provides, “No warrant shall issue without probable cause.” Ill. Const. 1970, art. I, § 6. See also U.S. Const., amend. IV Today the majority construes this clear constitutional command to permit a judge to issue a search warrant without probable cause to believe that a crime has been committed. In so doing, the majority abandons more than 100 years of precedent interpreting the right of the people of this state “to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures [and] invasions of privacy.” Ill. Const. 1970, art. I, § 6.
This court has had frequent occasion to consider the type of probable cause necessary to support the issuance of a search warrant. In the past, we have identified two core requirements: “First, facts must be related which would cause a reasonable man to believe a crime had been committed. Secondly, facts must be set forth which would cause a reasonable man to believe the evidence was in the place to be searched.” People v. George, 49 Ill. 2d 372, 377 (1971); see also People v. Free, 94 Ill. 2d 378 (1983); People v. Tate, 44 Ill. 2d 432 (1970); People v. Dolgin, 415 Ill. 434 (1953); Lippman v. People, 175 Ill. 101 (1898).
The warrant at issue satisfies neither of these requirements. At the time the warrant issued, defendant had not yet committed any crime, and the evidence was not located in her home. Thus, it cannot be disputed that there was neither probable cause to believe that a crime had been committed, nor probable cause to believe that the evidence was located at the premises to be searched. The majority dismisses these important constitutional infirmities, noting, “[t]his, of course, is true of all anticipatory search warrants.” 185 Ill. 2d at 551. While this statement is of course correct, it begs the question of the constitutionality of such warrants. Indeed, far from rebutting a criticism of anticipatory search warrants, the majority’s statement aptly demonstrates why all such warrants are unconstitutional.
The majority posits that this court’s prior holding invalidating anticipatory search warrants was decided merely as a matter of statutory construction; therefore, it treats the constitutionality of such warrants as a question of first impression. People v. Ross, 168 Ill. 2d 347 (1985). However, although we found it unnecessary to decide the constitutional question in Ross, our analysis in that case depended in large part upon Illinois constitutional jurisprudence in the area of searches and seizures. In concluding that section 108 — 3 of the Code of Criminal Procedure, as then in effect, prohibited anticipatory search warrants, we relied upon legislative history indicating that the drafters of that provision intended to follow existing case law — specifically Lippman v. People, 175 Ill. 101 (1898) — providing that a search warrant may be issued only after a crime has been committed. Ross, 168 Ill. 2d at 352-53. We also cited Lippman’s holding that “ ‘[a] search warrant can only be granted after a showing made before a magistrate, under oath, that a crime has been committed.’’ ” (Emphasis in original.) Ross, 168 Ill. 2d at 353, quoting People v. Lippman, 175 Ill. at 113. Finally, we concluded in Ross that “this court has never retreated from the principle set forth in Lippman, i.e., that a search warrant may only be issued after a crime has been committed. [Citations.]” Ross, 168 Ill. 2d at 353.
In addition to rewriting well-settled constitutional law, today’s decision represents astonishingly bad public policy. The majority’s holding allows a court to authorize the invasion of a citizen’s constitutionally protected privacy based upon information that, at some point in the future, the citizen may commit a crime and may have evidence of that crime in his home or on his person. Just as it is impermissible for police to detain a citizen based upon suspicion that the citizen may commit a crime, so too, it is inappropriate for a court to issue a search warrant in anticipation of criminality which has not yet occurred. Such action constitutes an overreaching and gross expansion of the police powers of this state, a terrible invasion of a citizen’s privacy, and an incompatibility with the concepts of ordered liberty embodied in our Illinois Constitution. Ill. Const. 1970, art. I, § 6.
Finally, because the good-faith exception to the exclusionary rule is not applicable to evidence seized in violation of the Illinois Constitution (People v. Krueger, 175 Ill. 2d 60 (1996)), evidence seized pursuant to the anticipatory search warrant is inadmissible. For these reasons, I would affirm the judgment of the circuit court and reverse the judgment of the appellate court. Accordingly, I dissent.
JUSTICE HARRISON joins in this dissent.