People v. Holmes , 2017 IL 120407 ( 2018 )

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People v. Holmes, 2017 IL 120407Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAVID
Court: HOLMES, Appellee.
Docket No. 120407
Filed July 20, 2017
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Dennis J. Porter, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal State’s Attorney, of Chicago (David L. Franklin, Solicitor General,
Michael M. Glick and Garson S. Fischer, Assistant Attorneys General,
and Alan J. Spellberg and Paul J. Connery, Assistant State’s
Attorneys, of counsel), for the People.
Amy P. Campanelli, Public Defender, of Chicago (Eileen T. Pahl,
Assistant Public Defender, of counsel), for appellee.
Justices JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Burke, and
Theis concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 Defendant David Holmes was arrested when a Chicago police officer observed a revolver
in defendant’s waistband. After the arrest, police also discovered that defendant lacked a
Firearm Owner’s Identification (FOID) card. Defendant was charged with four counts of
aggravated unlawful use of a weapon (AUUW). Counts I and III alleged that defendant carried
a loaded, uncased, immediately accessible firearm (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2),
(a)(3)(A) (West 2012)), and counts II and IV alleged that he did so without a FOID card (720
ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2012)). Subsequent to defendant’s
arrest, this court issued its decision in People v. Aguilar, holding that section 24-1.6(a)(1),
(a)(3)(A), (d)(1) was facially unconstitutional because it violated the right to keep and bear
arms, as guaranteed by the second amendment to the United States Constitution. People v.
Aguilar, 2013 IL 112116, ¶ 22. The State entered a nolle prosequi on counts I and III.
Defendant filed a motion to quash his arrest and suppress evidence with respect to counts II
and IV on the ground that the arresting officer only had probable cause to believe defendant
was violating sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A), which had been
declared unconstitutional. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012).
As a result, defendant argued that probable cause was retroactively invalidated and therefore
his arrest violated his right to be free from unreasonable search and seizure under the state and
federal constitutions.
¶2 After a hearing, the circuit court granted defendant’s motion. The appellate court affirmed.
2015 IL App (1st) 141256, ¶ 40. We allowed the State’s petition for leave to appeal, pursuant
to Illinois Supreme Court Rule 315 (eff. Mar. 15, 2016).
¶3 BACKGROUND
¶4 In January 2014, defendant filed a motion to quash his arrest and suppress evidence with
respect to counts II and IV. Because the probable cause underlying defendant’s arrest was
based solely upon a violation of sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A)
(720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012)), which were declared
facially unconstitutional in Aguilar after defendant’s arrest, defendant argued that the void
ab initio doctrine retroactively invalidated probable cause.
¶5 At the hearing on defendant’s motion, the arresting officer, Gabriel Barrera, testified that
on June 8, 2012, he was patrolling the 63rd Street Beach in Chicago. Officer Barrera saw
defendant lean into the passenger-side window of a vehicle to speak to the driver. Defendant’s
shirt rode up, revealing a revolver tucked into his waistband. Officer Barrera approached
defendant, asked him to place his hands on his head, and removed defendant’s revolver.
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Officer Barrera’s partner then took defendant into custody. It was after defendant was taken
into custody that Officer Barrera learned defendant’s name and that he did not have a FOID
card. Officer Barrera had no arrest or search warrant for defendant at the time of his arrest.
Officer Barrera conceded that, before arresting defendant, he did not know any information
about defendant. Therefore, probable cause was based solely upon defendant’s violation of the
subsequently invalidated AUUW subsections. Following Officer Barrera’s testimony,
defendant argued that the arrest should be quashed and all evidence resulting from the arrest
suppressed because
“At the time, yes, the officer did have the right to place [defendant] under arrest. He
had a right to search him and recover that gun.
Post-Aguilar, Judge, he didn’t because that portion of the statute was found to be
unconstitutional. It was found to be void. It had [sic] ab initio. The point being though
now that’s no longer okay. Just somebody carrying a gun is not a reason for officers to
place him in custody and place him under arrest.”
The trial court noted:
“It might be kind of unfortunate because the officer didn’t do anything wrong at the
time. But if it is true that the statute is void ab initio then it is like it never existed. And
if it never existed it is that portion of the statute [sic] then the officer didn’t have
probable cause.”
¶6 The appellate court affirmed, explaining that its conclusion was informed by this court’s
decision in People v. Carrera, 203 Ill. 2d 1 (2002):
“[O]ur supreme court in Carrera stated that a facially invalid statute is void ab initio.
*** In other words, ‘[i]t is as though no such law had ever been passed.’ [Citation.] ***
Based on the Carrera court’s language, we conclude the void ab initio doctrine
precludes the application of the good-faith doctrine in defendant’s case. *** As the
Carrera court explained, applying the good-faith exception to defendant’s case would
‘run counter to *** void ab initio jurisprudence.’ [Citation.] Further, the Carrera court
stated that giving ‘legal effect’ to the fact that the prior statute existed in the
defendant’s case would ‘effectively resurrect’ the statute ‘and provide a grace period
*** during which our citizens would have been subject to extraterritorial arrests
without proper authorization.’ ” 2015 IL App (1st) 141256, ¶¶ 29-30 (quoting People
v. Carrera, 203 Ill. 2d 1, 14, 16 (2002)).
¶7 Referencing Michigan v. DeFillippo, 443 U.S. 31 (1979), and United States v. Charles,
801 F.3d 855 (7th Cir. 2015), the appellate court noted that, “[a]s a result of the Illinois void
ab initio doctrine, we are *** in the unique position of having to hold that the same exact
conduct could establish probable cause if a case was brought in the federal system but not if it
was brought in our state courts.” 2015 IL App (1st) 141256, ¶ 36.
¶8 ANALYSIS
¶9 When reviewing a trial court’s ruling on a motion to quash arrest and suppress evidence,
this court applies a two-part standard of review. People v. Almond, 2015 IL 113817, ¶ 55.
Great deference is afforded to the trial court’s findings of fact, and those factual findings will
be reversed only if they are against the manifest weight of the evidence. Id. This court reviews
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de novo the trial court’s ultimate legal ruling as to whether the evidence should be suppressed.
Id.¶ 10 Before this court, the State contends that (1) the void ab initio doctrine does not
retroactively invalidate an arrest made upon probable cause to believe a defendant was
violating a then-valid criminal statute and, (2) alternatively, if the void ab initio doctrine does
retroactively invalidate such an arrest, then the good-faith exception to the exclusionary rule
should apply because the statute in the instant case is substantive in nature, in that it makes
unlawful certain conduct, and does not, by its own terms, confer unconstitutional search and
seizure authority upon police.
¶ 11 Defendant acknowledges that, at the time of his arrest, Officer Barrera had probable cause
to arrest him for carrying a loaded, uncased, immediately accessible firearm. 720 ILCS
5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012). Defendant, however, contends that our
2002 decision in Carrera mandates strict application of the void ab initio doctrine, which,
defendant maintains, would have the effect of retroactively invalidating probable cause and
thereby incidentally mandating the suppression of the evidence inculpating defendant for his
FOID violation. Any other result, according to defendant, would be counter to the void
ab initio doctrine.
¶ 12 The void ab initio doctrine is a state jurisprudential principle. “When a statute is held to be
facially unconstitutional, the statute is said to be void ab initio, i.e., void ‘from the
beginning.’ ” (Internal quotation marks omitted.) People v. McFadden, 2016 IL 117424, ¶ 17
(quoting Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006)). “An unconstitutional law ‘confers no
right, imposes no duty and affords no protection. It is *** as though no such law had ever been
passed.’ ” People v. Gersch, 135 Ill. 2d 384, 399 (1990) (quoting People v. Schraeberg, 347 Ill.
392, 394 (1932)). “[W]here a statute is violative of constitutional guarantees, we have a duty
not only to declare such a legislative act void, but also to correct the wrongs wrought through
such an act by holding our decision retroactive.” Id. The law is clear that a defendant cannot be
prosecuted under a statute that is void ab initio. See McFadden, 2016 IL 117424, ¶ 19. Less
clear is whether the void ab initio doctrine is meant to be given such literal interpretation as to
extend its reach to probable cause.
¶ 13 In the instant case, the appellate court concluded that this court’s decision in Carrera
dictates that probable cause based on a statute later found unconstitutional is retroactively
invalidated by operation of the void ab initio doctrine.
¶ 14 People v. Carrera
¶ 15 In Carrera, the defendant was arrested pursuant to a statute that granted police
extraterritorial arrest powers. 203 Ill. 2d at 7. Subsequent to the defendant’s arrest, the statute
was held unconstitutional because it was enacted in violation of the single subject rule of the
Illinois Constitution of 1970. People v. Reedy, 186 Ill. 2d 1, 12 (1999). Thereafter, the statute
was declared void ab initio in People v. Ramsey, 192 Ill. 2d 154, 156 (2000).
¶ 16 Before this court, the State argued (1) that the good-faith exception to the exclusionary rule
applies where police rely upon a statute later declared unconstitutional and (2) that the
exclusionary rule was inapplicable because the police did not conduct a constitutionally
unreasonable search or seizure but simply acted outside territorial limits without valid
statutory authority to do so. Carrera, 203 Ill. 2d at 10. The State forfeited the issue of whether
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the exclusionary rule applied but urged this court to still consider it because resolution of that
issue must occur prior to reaching the question of whether the good-faith exception applies. Id.
at 11.
¶ 17 A majority of this court concluded that Illinois law was settled that the exclusionary rule
applies where police effectuate an extraterritorial arrest without appropriate statutory
authority. Id. In response, the State argued that the good-faith exception to the exclusionary
rule applied because the police did not violate the defendant’s substantive constitutional rights
in effectuating the extraterritorial arrest. Id. at 13. Acknowledging the State’s argument, the
majority stated that it was choosing “to resolve this cause on narrower grounds” because “[i]n
our estimation, the result that we reach is dictated by application of the void ab initio doctrine.”
Id. at 13-14.
¶ 18 The majority explained that “[t]he void ab initio doctrine applies equally to legislative acts
which are unconstitutional because they violate substantive constitutional guarantees [citation]
and those that are unconstitutional because they are adopted in violation of the single subject
clause of our constitution [citation].” Id. at 14-15. The majority would not consider the State’s
good-faith exception argument, since application of “the good-faith exception would run
counter to our single subject clause and void ab initio jurisprudence—specifically, that once a
statute is declared facially unconstitutional, it is as if it had never been enacted.” Id. at 16. The
majority reasoned:
“In our estimation, to give effect to the historical fact that the amendment existed at the
time of defendant’s arrest would effectively resurrect the amendment and provide a
grace period (in this case four years between the effective date of the amendment and
the date of our opinion in Reedy finding Public Act 89-404 unconstitutional) during
which our citizens would have been subject to extraterritorial arrests without proper
authorization. Our decision not to recognize an exception to the exclusionary rule
where a statute is enacted in violation of the single subject clause comports with our
jurisprudence that a statute which is facially invalid, and thus unconstitutional in its
entirety, is void ab initio.” Id.¶ 19 However, we find that Carrera is distinguishable from the present case for the following
reasons. First, the statute at issue in Carrera did not itself violate any provision of the United
States Constitution. Id. at 22 (Garman, J., dissenting, joined by Fitzgerald and Thomas, JJ.)
(“[T]he 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.”).
Rather, the statute at issue was held unconstitutional because it was enacted in violation of the
single subject clause of the state constitution. Id. at 14-15 (majority opinion). Carrera involved
strict application of a state jurisprudential doctrine—the void ab initio doctrine—to a state
statute declared unconstitutional on purely state grounds. Id. at 16. In the instant case, the
statute at issue was held unconstitutional because it violated the second amendment of the
United States Constitution. The reasoning underlying this court’s decision in Carrera cannot
therefore be automatically applied to the present case, which involves the relationship between
the void ab initio doctrine and a statute declared unconstitutional on federal grounds.
¶ 20 Second, the majority in Carrera declined to consider whether the good-faith exception to
the exclusionary rule applied. Id. The issue of whether police had probable cause to arrest the
defendant in Carrera had been forfeited. See id. at 18. Therefore, probable cause was not at
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issue in Carrera. The State also forfeited the issue of whether the exclusionary rule applied. Id.
at 10. Rather, the majority resolved the case by applying the void ab initio doctrine and
declined to address the good-faith exception due to its belief that application of the good-faith
exception would be counter to the void ab initio doctrine. Id. at 16. The present case requires
that we first address whether probable cause is retroactively invalidated. If not, then any
reasoning involving the good-faith exception to the exclusionary rule is inapposite.
¶ 21 Third, Carrera is distinguishable because the facts and issues present did not implicate the
limited lockstep doctrine. The single subject clause of the Illinois Constitution of 1970 does
not have a cognate provision in the United States Constitution. See People v. Caballes, 221 Ill.
2d 282, 289 (2006) (“First, a provision may be unique to the state constitution and, therefore,
must be interpreted without reference to a federal counterpart. The single-subject rule of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 8(d)) is such a provision.”). In the
instant case, we must address whether probable cause is invalidated by application of the void
ab initio doctrine. Where, as here, the existence of probable cause is at issue, which is by
definition a fourth amendment issue, we must look to federal law pursuant to the limited
lockstep doctrine. See People v. Fitzpatrick, 2013 IL 113449, ¶ 28.
¶ 22 For the reasons that we explain below, strict application of the void ab initio doctrine in the
present context, to the extent posited by defendant, would conflict (1) with precedent from the
United States Supreme Court and (2) with two recent decisions from this court.
¶ 23 Limited Lockstep Doctrine
¶ 24 Under our limited lockstep doctrine, we construe the search and seizure clause of our state
constitution in accordance with the United States Supreme Court’s interpretation of the fourth
amendment unless any of the narrow exceptions to lockstep interpretation apply. See id. This
conclusion is “based on the premise that the drafters of the 1970 constitution and the delegates
to the constitutional convention intended the phrase ‘search and seizure’ in the state document
to mean, in general, what the same phrase means in the federal constitution.” Caballes, 221 Ill.
2d at 314.
¶ 25 “Both the fourth amendment to the United States Constitution, which applies to the states
via the fourteenth amendment (Mapp v. Ohio, 367 U.S. 643 (1961)), and article I, section 6, of
the Illinois Constitution of 1970, guarantee Illinois citizens the right to be free from
unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.”
People v. Gaytan, 2015 IL 116223, ¶ 20. Notably, the term “probable cause” is incorporated in
both the state and federal search and seizure provisions. U.S. Const., amend. IV; Ill. Const.
1970, art. I, § 6. Therefore, we follow decisions of the United States Supreme Court regarding
searches and seizures.
¶ 26 In Michigan v. DeFillippo, the United States Supreme Court addressed “whether an arrest
made in good-faith reliance on an ordinance, which at the time had not been declared
unconstitutional, is valid regardless of a subsequent judicial determination of its
unconstitutionality.” 443 U.S. 31, 33 (1979). The ordinance at issue provided that a police
officer could stop and question an individual if he had reasonable cause to believe that the
individual’s behavior warranted further investigation for criminal activity. Id. The ordinance
was subsequently amended to make it a crime for any person stopped pursuant to the ordinance
to refuse to identify himself and produce evidence of his identity. Id. When the defendant
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failed to identify himself, he was taken into custody and searched. Id. at 34. The search
revealed a package of marijuana and packet containing a controlled substance. Id. The
defendant was charged with possession of the controlled substance. Id. The defendant was not
charged with or tried for violation of the ordinance. Id. Subsequently, the ordinance making it
a crime to refuse to identify oneself was held unconstitutionally vague on its face. Id.¶ 27 The State argued that because of the violation of the ordinance, which the defendant
committed in the presence of the officers, the defendant was subject to a valid arrest and the
search that followed was a valid search incident to arrest. Id. at 35. Therefore, evidence of the
drugs should not have been suppressed. Id. The defendant maintained that since his arrest was
for allegedly violating an ordinance later held unconstitutional, the search was likewise
invalid. Id. After noting that the arresting officer had abundant probable cause to believe the
defendant violated the ordinance, the United States Supreme Court rejected the argument that
the officer lacked probable cause because he should have known the ordinance was invalid and
would later be judicially declared unconstitutional. Id. at 36-37. “A prudent officer *** should
not have been required to anticipate that a court would later hold the ordinance
unconstitutional.” Id. at 37-38. The Supreme Court explained further:
“Police are charged to enforce laws until and unless they are declared
unconstitutional. The enactment of a law forecloses speculation by enforcement
officers concerning its constitutionality—with the possible exception of a law so
grossly and flagrantly unconstitutional that any person of reasonable prudence would
be bound to see its flaws. Society would be ill-served if its police officers took it upon
themselves to determine which laws are and which are not constitutionally entitled to
enforcement.” Id. at 38.
¶ 28 In United States v. Charles, police responded to a call involving a road rage incident after a
woman reported that the other driver was pounding on her car window and had displayed a
gun. 801 F.3d 855, 857 (7th Cir. 2015). When officers reached the scene, the defendant
emerged from his car. Id. The defendant matched the caller’s description of the man with the
gun, the responding officer noticed a bulge under the defendant’s clothing, and the responding
officer detained and frisked him. Id. After finding nothing, the officer searched the defendant’s
car, wherein the officer discovered a loaded handgun. Id. The defendant was indicted for
possessing a firearm as a felon. Id. In finding probable cause, the court noted:
“It’s true that Chicago’s handgun ban was later invalidated, see McDonald, 561
U.S. at 791, 130 S.Ct. 3020, as was the Illinois concealed-carry law, see Moore, 702
F.3d at 942. But the ‘[p]olice are charged to enforce laws until and unless they are
declared unconstitutional,’ so a search based on a violation of a law later declared
unconstitutional does not necessarily violate the Fourth Amendment. Michigan v.
DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Although Charles
could not be punished for violating an unconstitutional statute or ordinance, unless a
law is ‘grossly and flagrantly unconstitutional,’ a police officer conducting a search
may reasonably rely on it for Fourth Amendment purposes. Id.” Id. at 861.
¶ 29 Federal case law is clear that, under the facts of this case, probable cause would not be
retroactively invalidated by the subsequent invalidation of the statute upon which probable
cause was based at the time of the arrest. DeFillippo, 443 U.S. 31; Charles, 801 F.3d 855. We
find this analysis compelling. Strict application of the Illinois void ab initio doctrine, to the
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literal extent posited by defendant, would conflict with our continued adherence to the limited
lockstep doctrine.
¶ 30 People v. Blair and People v. McFadden
¶ 31 Our conclusion is consistent with this court’s recent decisions in People v. Blair, 2013 IL
114122, and People v. McFadden, 2016 IL 117424.
¶ 32 First, in Blair, this court considered whether Public Act 95-688 (eff. Oct. 23, 2007), which
amended the armed violence statute, revived the sentencing enhancement in the armed robbery
statute that this court held unconstitutional in People v. Hauschild, 226 Ill. 2d 63 (2007). Blair,
2013 IL 114122, ¶ 1. Relevant here, the State in Blair disputed that, under the void ab initio
doctrine, the legislature could revive the armed robbery sentencing enhancement only by
amending and/or reenacting that statute. Id. ¶ 25. The defendant argued that although Public
Act 95-688 may have remedied the constitutional infirmity in the armed robbery statute, Public
Act 95-688 did not revive the sentencing enhancement in that statute because “once Hauschild
declared the armed robbery sentencing enhancement unconstitutional the statute was void
ab initio, and ‘the enhancement never existed.’ ” Id. ¶ 26. Agreeing with the State, this court
explained:
“Contrary to defendant’s argument, the void ab initio doctrine does not mean that a
statute held unconstitutional never existed. As we recognized in Perlstein, [t]he actual
existence of a statute, prior to a determination that the statute is unconstitutional, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. Perlstein, 218 Ill. 2d at 461(quoting Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374
(1940)). Moreover, to construe the void ab initio doctrine as rendering a statute
nonexistent is tantamount to saying that this court may repeal a statute. See Certain
Taxpayers v. [Sheahen], 45 Ill. 2d 75, 81 (1970) (effect of repeal is to obliterate the
statute repealed as completely as though it had never been passed as a law and never
existed). Such a result, however, would contravene our separation of powers clause. Ill.
Const. 1970, art. II, § 1.
The power to enact laws, and the concomitant power to repeal those laws, reside in
the General Assembly. *** Although we are obligated to declare an unconstitutional
statute invalid and void [citations], such a declaration by this court cannot, within the
strictures of the separation of powers clause, repeal or otherwise render the statute
nonexistent.” (Internal quotation marks omitted.) Id. ¶¶ 29-30.
¶ 33 Next, in McFadden, we considered whether a conviction for AUUW based on section
24-1.6(a)(1), (a)(3)(A) could still serve as a prior felony conviction after that section was
declared facially unconstitutional. 2016 IL 117424. The defendant argued that his 2008
conviction for unlawful use of a weapon (UUW) by a felon, a constitutionally valid offense,
was not proven because the predicate felony conviction was based on that portion of the
AUUW statute declared facially unconstitutional and void ab initio in Aguilar. Id. ¶ 21. We
noted that, “[b]ased on this court’s precedent, we continue to reaffirm the principle that the
void ab initio doctrine renders a facially unconstitutional statute unenforceable and renders a
conviction under that facially unconstitutional statute subject to vacatur.” Id. ¶ 20. We
explained:
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“Although Aguilar may provide a basis for vacating defendant’s prior 2002 AUUW
conviction, Aguilar did not automatically overturn that judgment of conviction. Thus,
at the time defendant committed the UUW by a felon offense, defendant had a
judgment of conviction that had not been vacated and that made it unlawful for him to
possess firearms.” Id. ¶ 31.
¶ 34 Therefore, this court rejected the defendant’s argument that the void ab initio doctrine, in
and of itself, procedurally operated to overturn the 2002 AUUW conviction. The conviction
would be treated as valid unless and until it was declared otherwise via judicial process. Id.
¶ 35 In the instant case, defendant attempts to distinguish Blair and McFadden. Specifically,
defendant implies that, because Blair involved a question of revival and revival is not at issue
in the instant case, Blair is inapposite. Defendant also asserts that McFadden did not curtail the
reach of the void ab initio doctrine nor preclude the defendant from obtaining relief, as it
addressed only the question of the procedural mechanism to challenge a conviction for
unlawful use of a weapon by a felon where the underlying felony conviction had been based
upon a statute later found unconstitutional. Because defendant “followed the proper procedure
by filing a motion to suppress challenging his arrest without probable cause,” defendant
insinuates that McFadden is similarly inapplicable.
¶ 36 We reject these arguments. Defendant does not explain why, if the void ab initio doctrine
did not bar a statutory amendment from being revived in Blair or did not automatically
invalidate the judgment of a predicate felony conviction in McFadden, it would invalidate
probable cause. Such a contention is irreconcilable with Blair and McFadden.
¶ 37 We hold that the void ab initio doctrine does not retroactively invalidate probable cause
based on a statute later held unconstitutional on federal constitutional grounds or on state
constitutional grounds subject to the limited lockstep doctrine. In the instant case, Officer
Barrera had probable cause at the time of defendant’s arrest, and thus there is no reason to
suppress the evidence collected incidental to the arrest. Because we conclude that probable
cause existed at the time of defendant’s arrest and that probable cause was not retroactively
invalidated by the subsequent declaration of unconstitutionality on second amendment
grounds, the exclusionary rule does not apply. Thus, there is no need to consider the good-faith
exception to the exclusionary rule.
¶ 38 CONCLUSION
¶ 39 The void ab initio doctrine did not retroactively invalidate probable cause for defendant’s
arrest because probable cause was predicated on a statute that was subsequently declared
unconstitutional on federal grounds. Because probable cause is a component of both the
federal and state search and seizure provisions, we follow federal law pursuant to the limited
lockstep doctrine. Federal case law holds that probable cause for arrest would not be
retroactively invalidated by subsequent declaration of a statute’s unconstitutionality on federal
grounds. See DeFillippo, 443 U.S. 31; Charles, 801 F.3d 855. Carrera is distinguishable and
does not dictate a different result because (1) Carrera involved strict application of a state
jurisprudential doctrine—the void ab initio doctrine—to a state statute declared
unconstitutional on purely state grounds, (2) Carrera did not analyze probable cause, as it was
not at issue, and (3) the facts and issues presented in Carrera did not implicate the limited
lockstep doctrine. See Carrera, 203 Ill. 2d 1. Our conclusion comports with this court’s
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decisions in Blair and McFadden. See Blair, 2013 IL 114122; McFadden, 2016 IL 117424. To
hold that the void ab initio doctrine requires retroactive invalidation of probable cause would
be tantamount to a repeal of the statute, which would violate separation of powers. Because
probable cause is not invalidated, no fourth amendment violation has occurred. Therefore, we
need not reach the issue of whether the good-faith exception to the exclusionary rule may
apply. Consequently, we reverse the judgment of the appellate court and remand the case to the
circuit court for further proceedings.
¶ 40 Reversed and remanded.
¶ 41 JUSTICE KILBRIDE, dissenting:
¶ 42 This opinion brings the demise of this court’s void ab initio doctrine one step closer. While
once again purportedly “ ‘continu[ing] to reaffirm the principle that the void ab initio doctrine
renders a facially unconstitutional statute unenforceable’ ” (supra ¶ 33 (quoting People v.
McFadden, 2016 IL 117424, ¶ 20)), the majority simultaneously vitiates both that doctrine’s
reason for being and our institutional duty to void statutes that are facially unconstitutional and
to remediate the damage they have done. In reaching its decision, the majority construes this
court’s opinion in People v. Carrera, 203 Ill. 2d 1, 16 (2002), so narrowly that it is effectively
overruled. The majority’s analysis is fundamentally incompatible with stare decisis and our
“paramount and constitutionally mandated function” to protect citizens’ constitutional rights
from facially unconstitutional legislation. People v. Gersch, 135 Ill. 2d 384, 398 (1990).
Because I cannot agree, I respectfully dissent.
¶ 43 In 1886, the United States Supreme Court explained that “[a]n unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is,
in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby
County, 118 U.S. 425, 442 (1886); see also supra ¶ 12 (quoting Gersch, 135 Ill. 2d at 399,
quoting People v. Schraeberg, 347 Ill. 392, 394 (1932)). This court has consistently followed
that formulation of the void ab initio doctrine, repeatedly deeming facially unconstitutional
statutes void “ ‘from the beginning.’ ” Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting
Black’s Law Dictionary 1604 (8th ed. 2004)). No one may be prosecuted in Illinois under a
facially unconstitutional law because “ ‘[a]n invalid law is no law at all.’ ” (Internal quotation
marks omitted.) Gersch, 135 Ill. 2d at 399 (quoting Van Driel Drug Store, Inc. v. Mahin, 47 Ill.
2d 378, 381 (1970), quoting People ex rel. Barrett v. Sbarbaro, 386 Ill. 581, 590 (1944)).
While we have occasionally permitted a somewhat more relaxed, equitable application of the
void ab initio doctrine in civil cases, we have adhered to its strict application in criminal
matters for decades. Indeed, we have actively championed strict application of the doctrine in
criminal cases, “where a defendant’s constitutionally guaranteed rights are in need of
vindication.” Perlstein, 218 Ill. 2d at 466.
¶ 44 While necessarily acknowledging this substantive backdrop (supra ¶ 12), the majority
nonetheless chooses to distance itself from those precedents, relying instead on a faulty
analogy that erroneously equates the “repeal” of a statute with a judicial declaration that it is
void ab initio. According to the majority, “ ‘to construe the void ab initio doctrine as rendering
a statute nonexistent is tantamount to saying that this court may repeal a statute. [Citation.]
Such a result, however, would contravene our separation of powers clause.’ ” Supra ¶ 32
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(quoting People v. Blair, 2013 IL 114122, ¶ 29). Not surprisingly, however, the parties’ briefs
do not raise the spectre of a “judicial repeal.” Applying the majority’s approach, even the
Supreme Court’s 1886 description of a judicial finding of unconstitutionality would create a
separation of powers violation. See Norton, 118 U.S. at 442 (explaining that “[a]n
unconstitutional act is not a law; *** it is, in legal contemplation, as inoperative as though it
had never been passed”). Used properly, “repeal” is, in fact, a legal term of art meaning
“abrogation of an existing law by legislative act.” (Emphasis added.) A repeal may be
“express,” relying on a “specific declaration in a new statute or main motion,” or “implied,”
produced by an “irreconcilable conflict between an old law or main motion and a more recent
law or motion.” Black’s Law Dictionary 1413 (9th ed. 2009). Regardless of the type, however,
a “repeal” necessarily involves legislative action. See also Certain Taxpayers v. Sheahen, 45
Ill. 2d 75, 81 (1970) (noting that, when one legislative act repeals another, the effect is to
“obliterate” the original statute as though it never existed).
¶ 45 In contrast, the void ab initio doctrine was judicially adopted to vindicate our citizens’
fundamental right to be free from unconstitutional legislation and to discourage its enactment.
While the effect of this equitable doctrine may be similar to that of a legislative repeal, it is a
distinct mechanism based on policy determinations specifically tied to the differing roles
played by the courts and the legislature. Gersch, 135 Ill. 2d at 396. Because judicial decisions
declare the existing law, they allow for only incremental adjustments as conditions evolve.
This slower process allows courts to consider whether equitable factors justify the retroactive
application of each change. In contrast, the legislature is empowered to alter the course of
public policy sharply and to create unexpected new rights and responsibilities. For that reason,
legislative actions are presumed to apply only prospectively. Gersch, 135 Ill. 2d at 396-97. “A
constitutionally repugnant enactment suddenly cuts off rights that are guaranteed to every
citizen [citation], and instantaneously perverts the duties owed to those citizens.” Gersch, 135
Ill. 2d at 397. By failing to apply the void ab initio doctrine to inactivate facially
unconstitutional statutes retroactively, this court would “effectively resurrect the amendment
and provide a grace period *** during which our citizens would have been subject to”
unconstitutional legislative action. Carrera, 203 Ill. 2d at 16. “To hold that a judicial decision
that declares a statute unconstitutional is not retroactive would forever prevent those injured
under the unconstitutional legislative act from receiving a remedy for the deprivation of a
guaranteed right.” Gersch, 135 Ill. 2d at 397. Those considerations, along with our mandate to
strike down statutes that infringe on citizens’ constitutional rights, have been the driving forces
behind our strict application of the void ab initio doctrine in criminal cases. Gersch, 135 Ill. 2d
at 398-99.
¶ 46 Here, the relevant statute eviscerated Illinois citizens’ fundamental right to possess
firearms, contrary to the core values firmly ensconced in the second amendment of our federal
constitution (U.S. Const., amend. II). People v. Aguilar, 2013 IL 112116, ¶ 16. The majority’s
position drastically, and unnecessarily, undermines the protections provided by our strict
application of the void ab initio doctrine. Without those protections, citizens unlucky enough
to attract the attention of law enforcement while exercising their second amendment rights are
exposed to otherwise impermissible prosecution for secondary conduct. In those instances, I
continue to support this court’s application of the void ab initio doctrine both to protect
guaranteed constitutional rights and to uphold our precedents shielding citizens from the sort
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of extreme collateral damage that, as in this case, can arise from arrests for facially
unconstitutional offenses.
¶ 47 Contrary to the majority’s claim (supra ¶ 32), the effect of a judicial declaration that a
statute is facially unconstitutional, and thus void ab initio, does not violate the separation of
powers clause, at least no more than does the inevitable intertwining of our statutory
constructions with the underlying statutory language. Village of Vernon Hills v. Heelan, 2015
IL 118170, ¶ 19 (recognizing that the judicial construction of a statute effectively becomes part
of that statute); Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 343 (2008) (and cases cited
therein). The inherent interweaving of common law and statutory enactment has never been
deemed an unconstitutional judicial crossover into the legislature’s exclusive territory, nor
should it be. It is simply the natural outcome when each branch of government fulfills its
intended function.
¶ 48 Similarly, legislative repeal and our strict application of the void ab initio doctrine both
provide mechanisms exercising the complementary authority possessed by our coequal
branches of government. Our strict application of the void ab initio doctrine, however, is not,
and never has been, “tantamount to saying that this court may repeal a statute.” (Internal
quotation marks omitted.) Supra ¶ 32. Perhaps that is the reason the parties’ briefs did not
include that argument, necessitating the majority’s sua sponte discussion. The majority’s
contrary conclusion suggests that many of our decisions applying the doctrine are
unconstitutional, seriously undercutting their validity.
¶ 49 The majority’s approach also attacks our analysis in Carrera, when we applied the
exclusionary rule to an extraterritorial arrest conducted in reliance on a statute later held
facially unconstitutional. We declined to consider the good-faith exception, concluding that it
“would run counter to our single subject clause and void ab initio jurisprudence.” Carrera, 203
Ill. 2d at 16. We further declined to give effect to the historical fact that the arrest was
authorized by a statute that, at the time, was valid because doing so “would effectively
resurrect the amendment and provide a grace period *** during which our citizens would have
been subject to extraterritorial arrests without proper authorization.” Carrera, 203 Ill. 2d at 16.
The majority’s abandonment of that principle here is irreconcilable with its purported
allegiance to our void ab initio doctrine as well as our rejection of the Supreme Court’s
decision in Illinois v. Krull, 480 U.S. 340 (1987), in favor of the dissent authored by Justice
O’Connor, based on the same rationale. See People v. Krueger, 175 Ill. 2d 60, 71-73 (1996)
(discussing Krull, 480 U.S. at 361-69 (O’Connor, J., dissenting, joined by Brennan, Marshall,
and Stevens, JJ.)). As this case makes clear, the creation of a grace period for violating our
citizens’ constitutional rights with legislative impunity remains a serious concern and requires
swift and complete remedial action. The AUUW provision at issue had been in effect since
2000 and undoubtedly had been applied against hundreds, if not thousands, of Illinois citizens
before we declared it facially unconstitutional in Aguilar, 2013 IL 112116. Although the
majority is content to accept the dismissal of the void AUUW charges as defendant’s sole
remedy, subjecting him to prosecution for secondary charges premised on his arrest for that
nonoffense, I am not.
¶ 50 What consolation is it for the State to drop the facially unconstitutional charges that
prompted an arrest only to subject the very citizen whose rights were violated to additional
felonies discovered after that arrest? It is, after all, this court’s “duty not only to declare such a
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legislative act void, but also to correct the wrongs wrought through such an act by holding our
decision retroactive.” Gersch, 135 Ill. 2d at 399. In its effort to avoid the harsh consequences
sometimes resulting from the invalidation of legislation that tramples our citizens’
fundamental rights, the majority overlooks the highly principled rationale underlying our void
ab initio precedents. The ends thus achieved, however, cannot justify the means used to reach
them under our case law.
¶ 51 To bolster its unjust conclusion, the majority also attempts to distinguish Carrera based on
the nature of its underlying constitutional flaw. That attempt fails, however, by relying on a
distinction without a difference. Although the statute in Carrera was declared unconstitutional
for violating the state single subject rule, while the AUUW provision here violated the federal
second amendment, that distinction is irrelevant. We expressly recognized as much when we
explained that “[t]he void ab initio doctrine applies equally to legislative acts which are
unconstitutional because they violate substantive constitutional guarantees [citation] and those
that are unconstitutional because they are adopted in violation of the single subject clause of
our constitution [citation].” Carrera, 203 Ill. 2d at 14-15. The majority’s rejection of that
conclusion contradicts Carrera’s clear directive.
¶ 52 Compounding its error, the majority announces this unprecedented limitation on the void
ab initio doctrine without citation to any legal authority. Supra ¶ 19. No principled basis exists
for granting relief under the void ab initio doctrine when the statute is unconstitutional on state
grounds but denying the same relief when the constitutional problem is federal. It is
inconceivable that this court would apply the void ab initio doctrine to grant the defendant in
Carrera full relief, bypassing the fourth amendment issues raised, but deny this defendant any
remedy by now choosing to focus on those same fourth amendment questions. As long as a
statute is facially unconstitutional, on any basis, the core justifications for applying our void
ab initio doctrine remain the same: to preserve our citizens’ constitutional rights, to provide a
full remedy for all legislative violations, and to discourage the future enactment of
unconstitutional legislation.
¶ 53 Consistent with those principles, the legislature’s direct violation of defendant’s second
amendment rights demands that he be granted full relief. The necessity of relief is even more
obvious when the nature of the harm here is compared to Carrera. The statute granting the
police extraterritorial jurisdiction to make arrests in Carrera was unconstitutional merely
because it was improperly enacted; the statute’s substantive constitutionality was never in
question. Carrera, 203 Ill. 2d at 13-14. In other words, if the police had exercised exactly the
same jurisdictional authority under a statute enacted as part of a legislative package addressing
a single subject, the validity of Carrera’s arrest would never have been in question.
Nonetheless, despite the fact that the harm inflicted on Carrera was indirect, he received full
relief from this court. In sharp contrast, the substance of the only offense underlying
defendant’s arrest here was unconstitutional on its face, invalidating each and every
prosecution based on it, yet he receives no relief. The direct and personal nature of the
constitutional wrong done to defendant, and to every other unfortunate soul arrested on facially
unconstitutional charges, is palpable, magnifying, not diminishing, the need for a full judicial
remedy. When viewed in that light, the injustice of the majority’s disposition is manifest.
¶ 54 Further undercutting the majority’s comparison of the state versus federal constitutional
violations, blackletter law recognizes a blanket constitutional right to possess firearms
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throughout the nation, with the federal right extended to the states through the application of
the fourteenth amendment. People v. Aguilar, 2013 IL 112116, ¶ 17 (citing McDonald v. City
of Chicago, 561 U.S. 742 (2010), for the proposition that the second amendment is applicable
to the states through the due process clause of the fourteenth amendment); Coram v. State of
Illinois, 2013 IL 113867, ¶ 49 (stating the same proposition); Wilson v. County of Cook, 2012
IL 112026, ¶ 11 (same). That constitutional mandate is thus no less a part of Illinois citizens’
constitutional rights than is the single subject rule. Drawing invisible lines based on the origin
of citizens’ basic rights ignores their universality as well as what is at stake if they are
disregarded.
¶ 55 The majority’s additional attempts to distinguish Carrera due to the State’s forfeiture of
the fourth amendment questions there (supra ¶ 20) again contradict our express language. In
discussing the alleged forfeiture, we stated that it was “not necessary *** to determine whether
the State has waived the [exclusionary rule] argument” or “consider whether the alleged
waiver must be excused under the circumstances at bar.” Carrera, 203 Ill. 2d at 11. Thus,
Carrera cannot be properly distinguished based on forfeiture because we never considered the
forfeiture question on its merits. In fact, we declined to address the State’s alleged forfeiture
precisely because it was irrelevant to our decision.
¶ 56 Instead, we expressly “[chose] to resolve [the] cause on narrower grounds” than the fourth
amendment. Carrera, 203 Ill. 2d at 13. And our failure to address those issues was not a mere
oversight. Recognizing the critical role played by our state doctrine, we explained that “[t]he
result that we reach[ed was] dictated by application of the void ab initio doctrine.” (Emphasis
added.) Carrera, 203 Ill. 2d at 13-14. The majority here, however, turns Carrera on its head,
completely ignoring this court’s stated preference for applying the void ab initio doctrine even
when presented with fourth amendment matters potentially implicating limited lockstep.
¶ 57 The majority’s analysis continues to ramp up the legal ambiguity, creating uncertainty over
our abandonment of the test we mandated in Krueger “to delineate the scope of our state
exclusionary rule.” Under that test, we must “ ‘carefully balance the legitimate aims of law
enforcement against the right of our citizens to be free from unreasonable governmental
intrusion.’ ” Krueger, 175 Ill. 2d at 75 (quoting People v. Tisler, 103 Ill. 2d 226, 245 (1984)).
We resolved that question in Carrera in favor of protecting our citizens’ substantive rights
when, as here, the arrest was premised on a facially unconstitutional statute. Carrera, 203 Ill.
2d at 14-15. Because “[a]n unconstitutional law ‘confers no right, imposes no duty and affords
no protection’ ” (internal quotation marks omitted) (supra ¶ 12), no duty exists to enforce an
unconstitutional law, and conversely, the mere presence of a facially unconstitutional law on
the books affords the State no protection for the consequences of any arrests based on it.
¶ 58 The murkiness of the opinion’s rationale further deepens when it chooses to focus on
probable cause rather than on our void ab initio doctrine. While the historical fact that probable
cause existed at the time of the arrest undoubtedly cannot be altered at this late date, probable
cause is not, and has never been, at issue here. The majority, however, uses the existence of
contemporaneous probable cause to justify its decision to address fourth amendment matters
rather than the effect of our void ab initio doctrine, contrary to our analysis in Carrera. Supra
¶¶ 36-37. In doing so, the majority answers the wrong question. The majority’s discussion of
probable cause is no more relevant here than a substantive analysis of the good-faith exception
or the exclusionary rule was in Carrera. This case is not about whether probable cause can be
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retroactively invalidated. This case involves only the suppression of evidence gathered after an
arrest for a facially unconstitutional offense.
¶ 59 Just as we have never concerned ourselves with the good-faith exception’s retroactive
effect on probable cause, we should not concern ourselves now with the retroactive effect of
the void ab initio doctrine on probable cause. The real question is limited to whether that
doctrine creates a remedy for defendant following his arrest for a facially unconstitutional
substantive offense. And we need not invalidate defendant’s arrest for lack of probable cause
to fashion the necessary remedy. We simply need to apply the void ab initio doctrine as we did
in Carrera. We can, and should, rely on our own nonconstitutional precedents whenever
possible. People v. White, 2011 IL 109689, ¶ 144 (explaining that constitutional challenges are
addressed only when they are essential to the case’s disposition). It is both unnecessary and
unwise to consider whether probable cause is retroactively undermined by either fourth
amendment considerations or our void ab initio doctrine.
¶ 60 Both Carrera and this case hinge exclusively on the application of our void ab initio case
law, obviating any examination of forfeiture or fourth amendment questions. Carrera, 203 Ill.
2d at 11, 13-14. When applying the void ab initio doctrine, the policy considerations
underlying probable cause, such as discouraging police misconduct, are irrelevant. The
conduct of the police bears neither fault nor consideration in determining the proper outcome
in this case. The only policy considerations that matter are those that historically animated our
void ab initio doctrine. We adopted that doctrine to protect our citizens’ rights from legislative
overreach and to discourage the enactment of facially unconstitutional laws. Carrera, 203 Ill.
2d at 16. See also Krueger, 175 Ill. 2d at 72-75 (adopting similar rationale to the dissent in
Krull, 480 U.S. at 361-69 (O’Connor, J., dissenting, joined by Brennan, Marshall, and Stevens,
JJ.)). As we did in Carrera, we should apply the doctrine here to suppress the evidence
gathered after defendant’s arrest for a facially unconstitutional offense.
¶ 61 Attempting to find additional support for its departure from the strict application of our
void ab initio doctrine, however, the majority turns to federal case law. Relying on Michigan v.
DeFillippo and United States v. Charles, the opinion argues that “[f]ederal case law is clear
that *** probable cause would not be retroactively invalidated by the subsequent invalidation
of the statute” underlying defendant’s arrest. Supra ¶ 29 (citing 443 U.S. 31, and 801 F.3d
855). Although that statement is correct as far as it goes, this is not a federal case, and this court
is not bound by the federal case law cited. People v. Radojcic, 2013 IL 114197, ¶ 36. We may
not abandon our own state doctrines based solely on contrary federal authority, at least not
without properly justifying our break from stare decisis. In this case, the majority’s
unexplained break is particularly egregious because federal courts do not adhere to our unique
construction of the void ab initio doctrine and, indeed, rarely even use that term. Because
federal courts do not abide by our void ab initio jurisprudence, the rationale and outcomes in
DeFillippo and Charles offer us absolutely no guidance here.
¶ 62 Indeed, the differing results in those cases should come as no surprise after this court’s
rejection in Krueger of the United States Supreme Court’s similar position in Krull. Relying on
the same policy rationales underlying our decision in Carrera, Krueger expressly rejected the
holding in Krull that “the fourth amendment exclusionary rule does not bar the use of evidence
seized by a police officer who reasonably relied, in objective good faith, on a statute that *** is
later declared to be unconstitutional.” Krueger, 175 Ill. 2d at 71. Instead, we knowingly
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departed from lockstep in a fourth amendment case and adopted Justice O’Connor’s Krull
dissent, an opinion joined by Justices Brennan, Marshall, and Stevens. Krueger, 175 Ill. 2d at
71-75 (discussing Krull, 480 U.S. at 361-69). That dissent focused on the “serious threat to
fourth amendment values” and liberty created by approving “ ‘a legislature’s unreasonable
authorization of searches [that] may affect thousands or millions.’ ” Krueger, 175 Ill. 2d at 72,
73 (quoting Krull, 480 U.S. at 365 (O’Connor, J., dissenting, joined by Brennan, Marshall, and
Stevens, JJ.)). We reaffirmed that position just a few short years ago in Fitzpatrick, when we
once again relied on Illinois’s “long-standing state tradition of excluding evidence obtained
under the authority of an unconstitutional statute. Krueger, 175 Ill. 2d at 74-75.” (Emphasis
added.) People v. Fitzpatrick, 2013 IL 113449, ¶ 16. I see no principled reason for rejecting
that same rationale now, without explanation, following defendant’s arrest for “something that
was never a crime” (People v. Shinaul, 2017 IL 120162, ¶ 14). Unlike today’s majority, I
remain “[un]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.” Krueger, 175 Ill. 2d at 75.
In light of the facially unconstitutional offense in this case, the need for continuing this stance
is even stronger. The majority’s position would create a legislative grace period lasting at least
13 years and affecting innumerable Illinois citizens guilty of nothing more than the exercise of
their constitutionally protected rights. Krueger, 175 Ill. 2d at 75 (relying on the same factors).
¶ 63 In light of our precedents applying the void ab initio doctrine rather than fourth
amendment case law, the majority’s discussion of limited lockstep remains a mystery. Despite
recognizing our refusal to address the merits of the State’s fourth amendment arguments in
Carrera, 203 Ill. 2d at 12-14 (supra ¶ 18), the majority asserts that its result in this case is
compelled by our adherence to fourth amendment jurisprudence (supra ¶¶ 28-29), raising new
questions about the continuing validity of our contrary analyses in Carrera and Krueger, as
well as other void ab initio decisions. Because the majority declines to overrule those
precedents directly, it is apparently content to disavow them sub silentio.
¶ 64 The opinion is also surprisingly inconsistent with our statements in People v. Caballes:
“Noting this state’s history of applying the exclusionary rule under the state
constitution as well as a long-standing tradition of barring evidence gathered under
the authority of an unconstitutional statute, this court rejected the Krull good-faith rule
as creating a ‘grace period for unconstitutional search and seizure legislation,’ ***
[and] ‘knowingly depart[ed]’ from the lockstep tradition to give effect to another
tradition—the exclusion of evidence gathered in violation of the state constitution’s
prohibition of unreasonable searches and seizures.” (Emphasis added.) Caballes, 221
Ill. 2d at 302-03.
In Caballes, we also recognized that “Krueger was a case about remedies” and that lockstep
was not implicated because in Krueger “[w]e construed state law as providing a remedy for the
constitutional violation even though the federal constitution did not require one.” Caballes,
221 Ill. 2d at 303. The same is true here. In the absence of a federal remedy, defendant seeks
alternative relief under our state void ab initio doctrine, namely, the suppression of evidence
obtained pursuant to his arrest on a facially unconstitutional offense. Despite this case being as
much about remedies as Krueger, and contrary to our long-held state tradition of strictly
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applying the void ab initio doctrine to facially unconstitutional criminal statutes, the majority
rejects that analysis here.
¶ 65 To complete its discussion, the majority opinion concludes that strictly applying the void
ab initio doctrine here would conflict with our decisions in People v. McFadden, 2016 IL
117424, and People v. Blair, 2013 IL 114122. While rejecting the argument that McFadden is
distinguishable, the majority chides defendant for not explaining why the void ab initio
doctrine would invalidate probable cause if it did not automatically invalidate the prior
conviction in McFadden. Once again, because I believe the issue in this case is not properly
defined by the doctrine’s retroactive effect on probable cause, I cannot agree with the majority.
The majority’s focus in McFadden was on that defendant’s felony status and the procedural
hoops he was required to jump through before the State could be precluded from using his
facially unconstitutional AUUW conviction as the predicate felony for a charge of unlawful
use of a weapon by a felon filed years later. Because the majority’s approach in that case
discussed an entirely different question, I agree with defendant that McFadden is
distinguishable.
¶ 66 This court’s decision in Blair is equally inapt. There, the court was considering whether an
amendment to the armed violence statute revived an armed robbery sentencing enhancement
declared unconstitutional in Hauschild. We noted that the “actual existence” of the statute “is
an operative fact and may have consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration.” (Internal quotation marks omitted.) Blair,
2013 IL 114122, ¶ 29. That explanation, however, begs the legal question here, when the issue
is not even remotely similar. In truth, no remedial doctrine can ever alter historical fact. Our
case law applying the void ab initio doctrine, however, has looked beyond historical fact to
fulfill this court’s duty to uphold the constitution and provide justice to those harmed by
unconstitutional legislation. For example, our rejection of the Supreme Court’s holding in
Krull was due to our abiding concern over the creation of a grace period when the legislation
could freely violate citizens’ guaranteed rights. The same rationale supported our use of the
void ab initio doctrine in Carrera. Our decisions in those cases were driven by our mandate to
protect citizens’ constitutional rights from legislative overreach and to provide an effective
remedy when those rights are breached. Along with our other void ab initio precedents,
Carrera and Krueger squarely put it within the power, and the inherent duty, of this court to
remedy the consequences defendant faces here due solely to the enactment of the facially
unconstitutional AUUW provision.
¶ 67 It is not enough simply to bar the prosecution of the facially unconstitutional offense while
permitting a defendant to be tried for an offense discovered only later when “ ‘[a]n invalid law
is no law at all.’ ” (Internal quotation marks omitted.) Gersch, 135 Ill. 2d at 399 (quoting
Van Driel Drug Store, Inc. v. Mahin, 47 Ill. 2d 378, 381 (1970), quoting People ex rel. Barrett
v. Sbarbaro, 386 Ill. 581, 590 (1944)). Since our decision in Blair, we have reiterated that “a
statutory section cannot be ‘present’ if it is void ab initio.” People v. Mosley, 2015 IL 115872,
¶ 55. And, as even Blair recognized, “ ‘[t]he effect of enacting an unconstitutional amendment
to a statute is to leave the law in force as it was before the adoption of the amendment.’ ” Blair,
2013 IL 114122, ¶ 30 (quoting Gersch, 135 Ill. 2d at 390). Despite its stated reliance on Blair,
the majority fails to apply that proposition here. If we apply the law as it stood prior to the
enactment of the unconstitutional AUUW provision, defendant would not have been arrested,
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and the FOID card violations would not have been discovered. To provide a complete remedy,
therefore, we must suppress the post-arrest FOID card evidence.
¶ 68 To hold otherwise would open wide the judicial doors to abuse of our system of criminal
justice. Imagine the myriad possibilities for abuse if citizens could be arrested for overtly
unconstitutional offenses that were later nol prossed while the evidence obtained pursuant to
those arrests was used to prosecute otherwise unreachable conduct. This court’s longstanding
formulation of the void ab initio doctrine was intended to prevent just that sort of misuse of
legislative power.
¶ 69 When citizens become the unwitting victims of facially unconstitutional legislation, we
must grant them the fullest relief possible in the interests of justice. Only in that way may the
temptation to enact unconstitutional criminal statutes in the hopes of reaching secondary
conduct be quelled. Otherwise, where is the justice for those citizens arrested during a
judicially sanctioned legislative grace period for a statute that makes constitutionally protected
acts illegal? The only truly effective, and just, relief is to suppress the evidence discovered
after those arrests. Not only is that remedy straightforward and practicable, but it fulfills the
vital principles underlying this court’s formulation of the void ab initio doctrine.
¶ 70 In contrast, the result created by the majority’s disposition sharply undercuts those goals.
Because the majority’s view “commands that which the Constitution denies the State the
power to command and makes ‘a crime out of what under the Constitution cannot be a
crime,’ ” I dissent from its incremental, sub silentio, dismantling of our void ab initio doctrine.
Michigan v. DeFillippo, 443 U.S. 31, 45 (1979) (Brennan, J., dissenting, joined by Marshall
and Stevens, JJ.) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971)). “[O]ur
choice of a rule of decision on matters governed by both the state and federal constitutions has
always been and must continue to be predicated on our best assessment of the intent of the
drafters, the delegates, and the voters—this is our solemn obligation. In keeping with this
obligation, *** this court adopted a limited lockstep approach in [People v.] Tisler[, 103 Ill. 2d
226 (1984),] and modified it in Krueger and Washington to allow consideration of state
tradition and values as reflected by long-standing state case precedent.” Caballes, 221 Ill. 2d at
313-14. Here, the strict application of the void ab initio doctrine in criminal cases is an
enduring state tradition reflected in our case law. If nothing else, stare decisis dictates that we
continue to apply that doctrine and suppress the evidence gathered against defendant after his
arrest for “something that was never a crime” (Shinaul, 2017 IL 120162, ¶ 14).
¶ 71 If, however, the majority wishes to change course at this late date and vitiate our
longstanding application of the void ab initio doctrine, it should do so forthrightly. While the
majority’s reluctance to admit its progressive eradication of the doctrine might be
understandable if we were routinely confronted with harsh consequences from its application,
that is far from true. “[T]he void ab initio doctrine does not apply to an as-applied
constitutional challenge” (emphasis in original) (People v. Thompson, 2015 IL 118151, ¶ 32),
and facial challenges remain the most difficult constitutional claims to mount (People v. Davis,
2014 IL 115595, ¶ 25). When raised, they are rarely successful. And even more rarely do the
few successful challenges render void ab initio statutes defining criminal offenses, triggering
the strict application of the doctrine.
¶ 72 The elimination of the void ab initio doctrine would, of course, require this court to reverse
numerous well-reasoned precedents previously fundamental to our criminal jurisprudence.
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Perhaps the need for special justification to break from stare decisis explains the majority’s
failure to acknowledge the serious impact its recent decisions have had on the viability of the
doctrine. See People v. Colon, 225 Ill. 2d 125, 146 (2007) (explaining that every departure
from stare decisis must be “specially justified” (internal quotation marks omitted)). Regardless
of the source of the majority’s refusal to address the doctrine’s erosion, I choose to adhere to
the case law we have so carefully fashioned to protect the fundamental rights of Illinois
citizens.
¶ 73 Our continued adherence to the void ab initio doctrine in precedents such as Carrera is
ultimately necessary because, when faced with “a statute [that] is violative of constitutional
guarantees, we have a duty not only to declare such a legislative act void, but also to correct the
wrongs wrought through such an act by holding our decision retroactive.” Gersch, 135 Ill. 2d
at 399. The doctrine represents this court’s considered decision to preclude the creation of a
grace period permitting our citizens to be arrested, prosecuted, and deprived of their liberty all
for the simple exercise of their fundamental constitutional rights. It is the summation of the
principles of justice that drove us to reject the Supreme Court’s analysis in Krull, reverse the
defendant’s murder conviction and remand for a new trial in Gersch, and suppress the
post-arrest evidence in Carrera. It is also the consideration that should animate this court’s
analysis in the present case. Both stare decisis and fundamental fairness demand no less. For
that reason, I would continue to apply the void ab initio doctrine consistent with our
established case law, and accordingly, I dissent from the majority opinion.
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