LEXIS-NEXIS® Academic Universe-Document

LEXIS-NEXIS® Academic

September 5, 2001, Wednesday

SECTION: Pg. 6

LENGTH: 1700 words

HEADLINE: State chokes in bid to have 'exception swallow rule'

BYLINE: RONALD D MENAKER

BODY:
Four score and seven years ago, in the landmark decision of Weeks v. U.S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the U.S. Supreme Court held that if police seize tangible items or gain information by means contrary to the Fourth Amendment, the objects or information seized will be excluded from evidence. Years later, this exclusionary rule became applicable to the states. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Lately, however, the vitality of the exclusionary rule has been a hot topic of conversation among lawyers, judges and even the general public.

From its earliest inception, the purpose behind the exclusionary rule was to deter police misconduct. Over the years, however, exceptions to the rule have been carved out when there was no reason to believe that a deterrent effect would result from the exclusion of the evidence. Two such exceptions that have taken on prominence recently are the "inevitable discovery" and "independent source" doctrines. According to the inevitable discovery exception to the exclusionary rule, if the prosecution can show that the objects illegally seized would ultimately, or inevitably, have been discovered through lawful means, the evidence becomes admissible.

The independent source exception holds that the exclusionary rule does not apply if the connection between the illegal police conduct and the discovery of evidence is so attenuated that the taint is dissipated.

While these two doctrines may be fairly easy to articulate, they can be very problematic when it comes to their application. A good example of the type of confusion that can arise was recently the subject of a decision by the 1st District Appellate Court. In a case of first impression, the court held that neither of the exceptions mentioned above apply when police unlawfully execute a valid search warrant. People v. Alfonzo Tate, No. 1-99-1279 (June 26).

The facts of the case are simple enough. On Oct. 2, 1996, several Chicago police officers executed a search warrant in a third-floor apartment at 6201 S. Champlain Ave., where defendant Alfonzo Tate resided. The search led to the recovery of various controlled substances, including heroin, cocaine and marijuana, and a .357-caliber handgun. Tate was eventually charged with illegal possession of the drugs and unlawful use of a weapon.

Before trial Tate moved to suppress from evidence all of the items seized from the apartment. The issue before the trial court was whether the officers who executed the warrant complied with the "knock and announce" requirement of the Fourth Amendment. The defendant maintained that they did not and that no exigent circumstances existed to bypass this requirement. Therefore, he asked the court to exclude the evidence because of this illegality.

In support of his position, the defendant and Carlos Hayes, a guest in the apartment at the time of the raid, testified that they were in the kitchen when the officers entered the apartment. Both told the court that they were conversing, talking in a low tone of voice so as not to wake up the other occupants, who were sleeping. They said that all of a sudden they heard "booming noises" coming from the front door, which was approximately 25 feet away, and that they saw several police officers enter, with their weapons drawn.

Both Tate and Hayes denied hearing anyone announce his presence before the "booms" and claimed no TV or radio was playing to interfere with their ability to hear.

Additional evidence revealed that the door the police entered through was split in half and hanging off its hinges.

Surprisingly, a police officer present at the scene and called as a witness by the prosecution related a different scenario. The witness testified that he was one of 11 officers who participated in the execution of the warrant. When they arrived at the apartment they could hear a TV playing as they stood outside the front door. The officer testified he knocked on the door "pretty hard" and announced his office twice but received no response. The forced entry immediately followed.

Unfortunately for the prosecution, however, the officer acknowledged on cross-examination that none of his reports mentioned that he knocked on the door before entering, announced his office or purpose, that a TV was playing, or that he gave the occupants time to respond to his knocks. The officer even denied forcing the door open with a battering ram, claiming instead that the door swung open after a "gentle tap."

At the conclusion of the evidence, the state argued that the officers did comply with the "knock and announce" requirement and that, therefore, all of the seized items should be admitted into evidence.

In ruling on the motion, the trial judge found the testimony of the defendant and Hayes more credible than that of the officer and concluded that the officers failed to comply with the knock and announce requirement. However, the court ruled that the violation did not require suppression of the evidence because the independent source or the inevitable discovery doctrine, or both, trumped the exclusionary rule. In effect, the court held, the exclusionary rule should not be extended to bar the admission of evidence that was seized under the authority of a valid search warrant.

With the evidence in tact, the defendant subsequently was convicted of all charges and sentenced to prison.

At issue before the 1st District Appellate Court was whether the independent source or the inevitable discovery exception applies to save evidence seized pursuant to a valid search warrant that was executed in violation of the knock and announce requirement. In its attempt to resolve the issue, the court first recognized that since the trial judge found that this warrant was executed contrary to a constitutional requirement, the accompanying search and seizure of the items was "presumptively unreasonable." Since the state did not contend on appeal that any exigent circumstances existed to overcome the knock and announce requirement, the court confined its analysis to the applicability of the proffered exceptions to the exclusionary rule.

Having isolated the issue, the justices quickly realized that no precedent was available to guide them in their determination. However, the appeals court did note that on two prior occasions the Illinois Supreme Court had considered a similar issue -- the constitutionality of search warrants executed pursuant to a "no-knock" statute that authorized unannounced entry if certain exigent circumstances existed.

In People v. Krueger, 175 Ill.2d 60, 221 Ill.Dec. 409, 675 N.E.2d 604 (1996), one of the cases reviewed, the Supreme Court found unconstitutional a statute authorizing unannounced entry based solely on information that the occupants possessed a firearm. More important to the appeals court, however, was the fact that the high court in Krueger declined to apply the good-faith exception to the exclusionary rule as articulated in U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 1160, 94 L.Ed.2d 364 (1982), finding that the Illinois Constitution does not permit the good-faith exception for a statute later found unconstitutional.

Similarly, the court noted, in People v. Wright, 183 Ill.2d 16, 231 Ill.Dec. 908, 697 N.E.2d 693 (1998), the Supreme Court again refused to apply the good-faith exception for a statute later ruled unconstitutional.

Although those cases dealt with the applicability of the good-faith exception for a statute that was struck down, not with the two exceptions at issue in this case, the 1st District concluded that the Supreme Court would be equally reticent to apply the trial court's analysis here -- that the independent source or the inevitable discovery doctrine trumps the exclusionary rule.

For example, the independent source exception, the court noted, rests on the policy that so long as a later, lawful seizure is genuinely independent of the tainted one, there is no reason why the exception should not apply. Yet, the court reasoned, that very requirement cuts directly against the state's argument here that the valid search warrant triggers the independent source doctrine.

That the information supporting the warrant was known before the illegal entry is irrelevant, the appeals court said. The state cannot escape the fact that the otherwise valid search warrant was executed in violation of the Fourth Amendment. The violation is directly connected to the illegal entry.

"A contrary conclusion," the court noted, "would render the knock and announce requirement meaningless and allow the exception to swallow the rule." Therefore, the independent source doctrine does not apply under these facts.

And because the inevitable discovery exception is really an extrapolation of the other doctrine, the same reasoning would apply to defeat the state's argument in that regard.

Finally, the court disagreed with the state's contention that the application of the exclusionary rule here hampers the purpose of the rule -- to deter police misconduct. That purpose is served here where the exclusionary rule in Article I, section 6, of the Illinois Constitution affords greater protection than its federal counterpart.

"The motion to suppress should have been granted once the trial court found that the officers failed to knock and announce their office before entering the apartment," the appeals court declared in reversing the judgment of the trial court. Criminal Law By Ronald D. Menaker Menaker is a partner in the law firm of Arnstein & Lehr, where he concentrates in criminal defense. Menaker and Arnstein partners Patrick A. Tuite and Patrick J. Cotter rotate authorship of this column.

LOAD-DATE: September 6, 2001