People v. McCarty ( 2006 )

Docket Nos. 100469, 100813 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROGER
McCARTY, Appellant.BTHE PEOPLE OF THE STATE OF
ILLINOIS, Appellee, v. JEANYNE REYNOLDS, Appellant.
Opinion filed October 19, 2006.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald and Karmeier
concurred in the judgment and opinion.
Justice Freeman concurred in part and dissented in part, with
opinion, joined by Justice Kilbride.
Justice Burke took no part in the decision.
OPINION
After separate bench trials in the circuit court of Marion County,
defendants Roger McCarty and Jeanyne Reynolds were convicted of
knowingly manufacturing more than 900 grams of a substance
containing methamphetamine. 720 ILCS 570/401(a)(6.5)(D) (West
2000). 1 Each received the mandatory minimum sentence of 15 years=
imprisonment. 720 ILCS 570/401(a)(6.5)(D) (West 2000). In separate
decisions, the appellate court affirmed defendants= convictions and
sentences. McCarty, 356 Ill. App. 3d 552; Reynolds, 358 Ill. App. 3d
286. This court allowed defendants= petitions for leave to appeal (177
Ill. 2d R. 315) and consolidated their cases for review. For the
reasons that follow, we affirm the judgments of the appellate court.
BACKGROUND
On December 20, 2001, Deputy Mark Rose of the Marion County
sheriff=s department obtained a warrant to search Athe trailer of Roger
McCarty@ for Amethamphetamine[,] records of drug transactions[,]
drug paraphernalia[,] [and] United States Currency.@ 2 Deputy Rose
and a group of other police officers executed the warrant later that
day. Their search divulged numerous items, including four containers
of liquids suspected to contain methamphetamine, six bottles of
pseudoephedrine pills, lithium batteries, hoses, a set of electronic
scales, coffee filters, six one-gallon cans of camping fuel, gas masks,
and a locked metal box containing $3,030 in cash and approximately
30 grams of suspected cannabis. After the search, the officers arrested
defendant Roger McCarty and his fiancée, defendant Jeanyne
Reynolds.
1
On September 11, 2005, the Methamphetamine Control and Community
Protection Act (Methamphetamine Control Act) took effect. See Pub. Act
94B556, eff. September 11, 2005. Among other things, the
Methamphetamine Control Act amended section 401 of the Illinois
Controlled Substances Act, which no longer applies to methamphetamine.
See Pub. Act 94B556, '1065, eff. September 11, 2005 (amending 720 ILCS
570/401 (West 2004)). In this case, the preamended version of section 401
is at issue.
2
We set forth the facts surrounding the procurement of the warrant and
the search itself in greater detail during our discussion of the
constitutionality of the warrant.
The next day, defendants were charged by information with
unlawful manufacture of less than five grams of a substance
containing methamphetamine (720 ILCS 570/401(d) (West 2000))
and unlawful possession of a methamphetamine manufacturing
chemical with intent to manufacture less than 15 grams of a substance
containing methamphetamine (720 ILCS 570/401(dB5), 102(zB1)
(West 2000)), both of which are Class 2 felonies. Defendants were
also charged with the Class 3 felony of unlawful possession with
intent to deliver more than 30 grams, but not more than 500 grams, of
a substance containing cannabis (720 ILCS 550/5(d) (West 2000)). A
preliminary hearing was held on January 17, 2002 (725 ILCS
5/111B2 (West 2000)), and the circuit court entered findings of
probable cause as to both defendants.
The State amended the informations against defendants on
February 21, 2002, and again on March 4, 2002. Initially, the State
omitted the counts for possession of a methamphetamine
manufacturing chemical and increased the manufacturing counts from
Class 2 felonies to Class X felonies, alleging that defendants
manufactured more than 15 grams, but less than 100 grams, of a
substance containing methamphetamine. 720 ILCS
570/401(a)(6.5)(A) (West 2000). The State then amended the
manufacturing counts to allege the manufacture of more than 900
grams of a substance containing methamphetamine, thereby
rendering defendants eligible for sentences of 15 to 60 years=
imprisonment. 720 ILCS 570/401(a)(6.5)(D) (West 2000).
Defendants filed separate motions to suppress the evidence seized
during the search. They argued that the search warrant obtained by
Deputy Rose failed to describe the premises to be searched and the
items to be seized with sufficient particularity. The circuit court held
a consolidated suppression hearing and subsequently denied both
motions in a written docket entry.
After the motions to suppress were denied, defendants filed
separate motions to dismiss the methamphetamine-related counts of
the informations. They argued that section 401(a)(6.5) of the
Controlled Substances Act violates the proportionate penalties clause
(Ill. Const. 1970, art. I, '11) and the due process clause (Ill. Const.
1970, art. I, '2) of the Illinois Constitution if the statute is interpreted
to permit the weight of the byproduct produced during the
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manufacture of methamphetamine to count toward determining a
defendant=s penalty for manufacturing the drug. The circuit court held
a consolidated hearing on the motions to dismiss and denied them
both.
On January 29, 2003, the State amended defendants= informations
for the final time. The State added counts for possession with intent
to manufacture more than 900 grams of a substance containing
methamphetamine. 720 ILCS 570/401(a)(6.5)(D) (West 2000). Thus,
the final counts against defendants alleged: (1) manufacture of more
than 900 grams of a substance containing methamphetamine (720
ILCS 570/401(a)(6.5)(D) (West 2000)), (2) possession with intent to
manufacture more than 900 grams of a substance containing
methamphetamine (720 ILCS 570/401(a)(6.5)(D) (West 2000)), and
(3) possession with intent to deliver more than 30 grams, but not
more than 500 grams, of a substance containing cannabis (720 ILCS
550/5(d) (West 2000)).
After the State=s final amendment of the informations, defendant
McCarty filed a motion to dismiss counts I and II of his information.
McCarty made essentially the same argument as he had with respect
to his initial motion to dismiss, and the motion was denied.
On May 5, 2003, McCarty proceeded with a stipulated bench
trial. The State recounted the evidence its witnesses would have
offered if called to testify. According to the State, the officers who
executed the search warrant would have testified that the liquid in the
four containers retrieved from the search weighed approximately
1,770 grams, and the samples taken from each container later tested
positive for methamphetamine. The officers would further have
testified that the other materials recovered as a result of the search
could be used to manufacture methamphetamine. In addition, they
would have testified that the substance suspected of containing
cannabis was later confirmed to contain cannabis, and its weight
exceeded 30 grams.
The State also submitted into evidence a laboratory report and the
written and oral statements McCarty made to the police after he was
arrested. The laboratory report contained the results of the tests
performed on the samples of liquid and cannabis. McCarty=s
statements acknowledged that the various batches of liquid contained
methamphetamine, and that, on the day of the search, McCarty was in
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the process of manufacturing methamphetamine so that he could sell
it to make money.
McCarty stipulated to the State=s evidence. He did not testify or
offer any additional evidence. Based on the stipulated evidence, the
trial court found McCarty guilty of all three counts against him. He
did not file a posttrial motion.
On May 14, 2003, defendant Reynolds proceeded with a
stipulated bench trial. The stipulated evidence was essentially the
same as that presented during McCarty=s trial. The State introduced
the same laboratory report into evidence. In addition, according to the
State, the testimony of the officers who executed the search warrant
would have shown that the search divulged more than 900 grams of
liquid that tested positive for the presence of methamphetamine, and
more than 30 grams of a substance that tested positive for the
presence of cannabis.
The State also introduced Deputy Rose=s police report into
evidence. The report indicated that, in Reynolds= oral statement to the
police, she admitted that, on the day of the search, she had the
intention to make methamphetamine and was involved in the process
of doing so to make money.
Reynolds stipulated to the State=s evidence. She did not testify or
offer any additional evidence. She did note that she was not waiving
her objections to the circuit court=s rulings on her motion to suppress
and her motion to dismiss. Based on the stipulated evidence, the trial
court found Reynolds guilty of counts I and III. She subsequently
filed a motion for a new trial arguing that her motions to suppress and
dismiss were erroneously denied, and the trial court denied the
motion.
Defendants= cases proceeded to sentencing. During McCarty=s
sentencing hearing, the trial court vacated the judgment on count II
pursuant to People v. King, 66 Ill. 2d 551 (1977), as a conviction for
a lesser-included offense. The court sentenced McCarty to concurrent
prison terms of 15 years and 5 years on count I and count III
respectively. Reynolds received an identical sentence. At both
sentencing hearings, the State conceded that it could not prove how
much usable methamphetamine defendants produced. Therefore, the
State sought no fines for the street value of the methamphetamine,
and none were imposed. See 730 ILCS 5/5B9B1.1 (West 2000).
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Defendants filed separate appeals raising substantially similar
issues (see McCarty, 356 Ill. App. 3d at 554-55; Reynolds, 358 Ill.
App. 3d at 289), and the appellate court affirmed their convictions
(McCarty, 356 Ill. App. 3d at 566; Reynolds, 358 Ill. App. 3d at 299).
The court rejected defendants= arguments that (1) the search warrant
was unconstitutional, and the items seized should have been
suppressed; (2) the penalty provisions in section 401(a)(6.5) of the
Controlled Substances Act (720 ILCS 570/401(a)(6.5) (West 2000))
violate the proportionate penalties clause of the Illinois Constitution
(Ill. Const. 1970, art. I, '11); and (3) the legislature did not intend to
include the byproduct produced during the manufacture of
methamphetamine within the definition of Asubstance containing
methamphetamine@ (720 ILCS 570/401(a)(6.5)(D) (West 2000)).
McCarty, 356 Ill. App. 3d at 559-65; Reynolds, 358 Ill. App. 3d at
294-97. The appellate court also rejected defendants= challenges to
the sufficiency of the evidence supporting their cannabis-related
convictions (McCarty, 356 Ill. App. 3d at 565-66; Reynolds, 358 Ill.
App. 3d at 298) and Reynolds= challenge to the sufficiency of the
evidence supporting her conviction for manufacturing
methamphetamine (Reynolds, 358 Ill. App. 3d at 297-98).
Defendants= challenges to the sufficiency of the evidence are not at
issue in this appeal.
Defendants filed separate petitions for leave to appeal, which we
allowed (177 Ill. 2d R. 315) and consolidated to address the meaning
of Asubstance containing methamphetamine@ in section
401(a)(6.5)(D) of the Controlled Substances Act (720 ILCS
570/401(a)(6.5)(D) (West 2000)). After leave to appeal was granted,
McCarty requested leave to file a pro se supplemental brief
addressing the constitutionality of the search warrant. This court
allowed him to file a supplemental brief and permitted Reynolds to
do the same through counsel.
ANALYSIS
This case presents four issues: (1) whether, for purposes of
section 401(a)(6.5)(D) of the Controlled Substances Act (720 ILCS
570/401(a)(6.5)(D) (West 2000)), Asubstance containing
methamphetamine@ includes the byproduct produced during the
manufacture of methamphetamine; if so, (2) whether section
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401(a)(6.5)(D) violates the proportionate penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, '11) or (3) the due
process clause of the Illinois Constitution (Ill. Const. 1970, art. I.,
'2); and (4) whether the search warrant in this case violated the
warrant clause of the Illinois Constitution (Ill. Const. 1970, art. I, '6)
or the warrant clause of the United States Constitution (U.S. Const.,
amend. IV). As a preliminary matter, we address the State=s argument
that McCarty has forfeited the first, second, and third issues described
above. For the moment, we postpone our discussion of the State=s
contentions regarding McCarty=s and Reynolds= alleged forfeiture of
the fourth issue.
The State notes that McCarty filed no posttrial motion. In
addition, the State points out that McCarty did not raise his
challenges to the constitutionality of section 401(a)(6.5)(D) in his
petition for leave to appeal. In general, the failure to raise an issue in
a posttrial motion results in the forfeiture of that issue on appeal.
People v. Cuadrado, 214 Ill. 2d 79, 89 (2005); People v. Enoch, 122
Ill. 2d 176, 186 (1988). Likewise, the failure to raise an issue in a
petition for leave to appeal results in the forfeiture of that issue before
this court. People v. Carter, 208 Ill. 2d 309, 318 (2003); People v.
Anderson, 112 Ill. 2d 39, 43-44 (1986). However, as this court has
noted in the past, a challenge to the constitutionality of a statute may
be raised at any time. In re J.W., 204 Ill. 2d 50, 61-62 (2003); People
v. Wright, 194 Ill. 2d 1, 23-24 (2000) (allowing defendant to
challenge constitutionality of statute for first time in petition for
rehearing); People v. Bryant, 128 Ill. 2d 448, 454 (1989). Therefore,
McCarty has not forfeited his proportionate penalties and due process
challenges to the constitutionality of section 401(a)(6.5)(D).
Furthermore, because McCarty=s argument regarding the
interpretation of the statute is directly related to his constitutional
challenges, that argument likewise has not been forfeited.
I. Interpretation of Section 401(a)(6.5)(D)
We first address the issue of statutory interpretation raised by
defendants. Section 401 of the Illinois Controlled Substances Act
(720 ILCS 570/401 (West 2000)) provides in relevant part that:
A[I]t is unlawful for any person knowingly to: (i)
manufacture or deliver, or possess with intent to manufacture
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or deliver, a controlled or counterfeit substance or controlled
substance analog ***. ***
(a) Any person who violates this Section with respect to
the following amounts of controlled or counterfeit substances
or controlled substance analogs *** is guilty of a Class X
felony and shall be sentenced to a term of imprisonment as
provided in this subsection (a) *** :
***
(6.5) ***
***
(D) not less than 15 years and not more than 60 years with
respect to 900 grams or more of any substance containing
methamphetamine or any salt of an optical isomer of
methamphetamine, or an analog thereof.@ (Emphases added.)
720 ILCS 570/401 (West 2000).
Defendants were convicted of manufacturing over 900 grams of a
Asubstance containing methamphetamine@ in violation of section
401(a)(6.5)(D) of the Act. The record on appeal does not disclose the
exact chemical composition of the liquid seized from defendants.
However, defendants and the State refer to it throughout their briefs
as the byproduct of the methamphetamine manufacturing process,
and we shall do so as well.
Defendants argue that the legislature intended Asubstance
containing methamphetamine@ to refer only to usable, finished
methamphetamine and did not intend the unusable byproduct
produced during the methamphetamine manufacturing process to
count toward the drug weight used in determining the appropriate
sentencing range for the offense of manufacturing methamphetamine.
The State, on the other hand, argues that the legislature intended
Asubstance containing methamphetamine@ to include the byproduct
produced during the methamphetamine manufacturing process,
asserting that the plain language of section 401(a)(6.5)(D) requires
this conclusion. The issue before us is thus whether, for purposes of
section 401(a)(6.5)(D), Asubstance containing methamphetamine@
includes the byproduct produced during the manufacture of
methamphetamine.
The interpretation of a statute presents a question of law, which
we review de novo. People v. Roberts, 214 Ill. 2d 106, 116 (2005).
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The fundamental rule of statutory interpretation is to give effect to
the intent of the legislature. People v. Jones, 214 Ill. 2d 187, 193
(2005). Accordingly, a court must consider a statute in its entirety,
keeping in mind the subject it addresses and the legislature=s apparent
objective in enacting it. People v. Wooddell, 219 Ill. 2d 166, 170
(2006). The best indication of the legislature=s intent is the language
of the statute, given its plain and ordinary meaning. People v. Hari,
218 Ill. 2d 275, 292 (2006). Where the language is clear and
unambiguous, it will be given effect without resorting to further aids
of construction. People v. Collins, 214 Ill. 2d 206, 214 (2005).
Section 401 does not define Asubstance containing
methamphetamine.@ See 720 ILCS 570/401 (West 2000). However,
the plain meaning of the phrase compels us to conclude that the
legislature did not intend to exclude the weight of the byproduct
produced during the manufacture of methamphetamine from the total
weight used in determining an individual=s sentence for
manufacturing methamphetamine. Given its plain and ordinary
meaning, Asubstance@ is defined as Amaterial from which something is
made and to which it owes its characteristic qualities.@ Webster=s
Third New International Dictionary 2279 (2002). The byproduct of
the methamphetamine manufacturing process clearly qualifies as
material from which methamphetamine is made and to which
methamphetamine owes its characteristic qualities. Accordingly,
byproduct that contains traces of methamphetamine qualifies as a
Asubstance containing methamphetamine.@ Thus, here, the liquid that
tested positive for the presence of methamphetamine was a
Asubstance containing methamphetamine,@ despite the State=s inability
to prove that any of the methamphetamine was usable.
If the legislature had intended to limit the application of section
401(a)(6.5)(D) to methamphetamine that is usable or consumable or
marketable, it could easily have done so. In the absence of the
legislature=s express statement of such a limitation, we decline to read
one into the statute. See, e.g., In re Christopher K., 217 Ill. 2d 348,
364 (2005). See also People v. McCleary, 353 Ill. App. 3d 916, 925
(2004) (noting that section 401(a)(6.5)(D) Aunequivocally
contemplates the inclusion of more than usable methamphetamine in
the weight calculation@); People v. Haycraft, 349 Ill. App. 3d 416,
428 (2004) (AMethamphetamine is its ingredients, i.e., anhydrous
ammonia, pseudoephedrine, and lithium, combined in a mixture,
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whether cooked to its final, marketable form or not. The defendant
combined the methamphetamine ingredients into the container; thus,
the mixture in the container constituted a >substance containing
methamphetamine= @).
Notably, defendants do not dispute that the plain meaning of
Asubstance containing methamphetamine@ encompasses byproduct of
the methamphetamine manufacturing process that tests positive for
the presence of the drug. Instead, they contend that interpreting
Asubstance containing methamphetamine@ in this manner produces
absurd results. Defendants reason that it is absurd to punish as a Class
X felon Athe first-time or occasional, small-batch manufacturer@ who
does not even create usable methamphetamine. They also claim it is
absurd for such an individual to receive punishment identical to that
of a successful manufacturer who produces an equivalent amount of
usable methamphetamine. We find these arguments unpersuasive.
In interpreting a statute, we presume the legislature did not intend
absurd results. People v. Botruff, 212 Ill. 2d 166, 175 (2004).
Manufacturing methamphetamine is a dangerous process involving
toxic and combustible chemicals. See, e.g., People v. Gallaher, 348
Ill. App. 3d 1023, 1025-26 (2004) (describing dangers of
manufacturing methamphetamine); United States v. Chamness, 435
F.3d 724, 727-28 (7th Cir. 2006) (same); see also Pub. Act 94B556,
eff. September 11, 2005 (adding 720 ILCS 646/5) (finding that Athe
manufacture of methamphetamine is extremely and uniquely
harmful@). Given that the process is so hazardous, there is no
absurdity in strictly punishing an individual who engages in it, even if
he or she does so only once and is unable to produce any usable
methamphetamine. As we have noted, the legislature has broad
discretion in setting criminal penalties. People v. Sharpe, 216 Ill. 2d
481, 487 (2005).
Relatedly, there is no absurdity in treating a quantity of finished,
usable methamphetamine the same for sentencing purposes as an
identical quantity of manufacturing byproduct that contains traces of
unusable methamphetamine. While finished, usable
methamphetamine carries with it the added danger to society of being
distributed, a quantity of the latter and an identical quantity of
unusable byproduct are both results of the same highly dangerous
manufacturing process. As the appellate court noted in McCarty=s
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appeal: AA methamphetamine manufacturer poses a threat to the
public health and safety not only because he is attempting to produce
a highly dangerous and addictive product but also because he is
engaged in a process involving highly toxic and combustible
chemicals. Increasingly, >labs= are located in populated areas.@
(Emphasis added.) McCarty, 356 Ill. App. 3d at 563-64.
Defendants also argue that other, related statutory provisions
provide evidence that the legislature intended Asubstance containing
methamphetamine@ to refer only to usable methamphetamine. As we
have already noted, the plain meaning of section 401(a)(6.5)(D) is
clear, and we see no absurdity in applying the language of the statute
as written. We wish to emphasize, however, that defendants= reliance
on other statutory provisions is unconvincing on its own terms.
Defendants initially rely on the statement of legislative intent in
the Controlled Substances Act (720 ILCS 570/100(5) (West 2000))
and on section 2D1.1 of the Federal Sentencing Guidelines (U.S.
Sentencing Guidelines Manual '2D1.1, Commentary Note 1, at 120
(2001)). They argue that because the federal government=s approach
to sentencing individuals convicted of manufacturing
methamphetamine takes into consideration only the weight of usable
methamphetamine, and because our state legislature has expressed its
intent to unify Illinois= controlled substance regulatory system with
that of the federal government, it is reasonable to conclude that the
legislature intended to utilize the same Amarket-oriented@ sentencing
scheme for methamphetamine manufacturing as the federal
government. The State, in response, disputes defendants=
characterization of the federal approach to methamphetamine
sentencing, arguing it is not as straightforward as defendants suggest.
According to the State, it is Afar from clear@ that the market-oriented
approach adopted by the Federal Sentencing Guidelines also applies
to determining an individual=s statutorily designated mandatory
minimum sentence. Thus, the State claims, there is disagreement
among the federal circuit courts of appeals as to when the market-
oriented approach is applicable.
The Controlled Substances Act does indeed state that one of its
purposes is to Aunify where feasible and codify the efforts of this
State to conform with the regulatory systems of the Federal
government and other states to establish national coordination of
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efforts to control the abuse of controlled substances.@ 720 ILCS
570/100(5) (West 2000). It is well established, however, that a
declaration of policy or a preamble is not a part of the act itself
(Brown v. Kirk, 64 Ill. 2d 144, 152 (1976)) and has no substantive
legal force (Lieber v. Board of Trustees of Southern Illinois
University, 176 Ill. 2d 401, 414 (1997)). While it may be used as a
tool of statutory construction (Atkins v. Deere & Co., 177 Ill. 2d 222,
228 (1997)), it may not be used to create an ambiguity in an
otherwise unambiguous statute (Triple A Services, Inc. v. Rice, 131
Ill. 2d 217, 227 (1989)). As this court has stated, A[t]o the extent that
any express language in a statute contradicts a preamble, the statutory
language controls.@ (Emphasis in original.) Atkins, 177 Ill. 2d at 234.
Here, we will not override the unambiguous language of section
401(a)(6.5)(D) to give effect to an aspirational policy objective set
forth in the Controlled Substances Act=s statement of legislative
intent.
Furthermore, even if we were to accord an unprecedented degree
of weight to the Act=s statement of legislative intent in interpreting
section 401(a)(6.5)(D), we could not unequivocally conclude that the
market-oriented approach to methamphetamine sentencing represents
Athe regulatory system[ ] of the Federal government@ (720 ILCS
570/100(5) (West 2000)). After carefully considering the federal
cases cited to us by the parties (United States v. Hardin, 437 F.3d 463
(5th Cir. 2006); United States v. Combs, 379 F.3d 564 (9th Cir.
2004); United States v. Stewart, 361 F.3d 373 (7th Cir. 2004); United
States v. Kuenstler, 325 F.3d 1015 (8th Cir. 2003); United States v.
Zackery, 165 F.3d 22 (4th Cir. 1998) (unpublished opinion); United
States v. Sprague, 135 F.3d 1301 (9th Cir. 1998); United States v.
Richards, 87 F.3d 1152 (10th Cir. 1996); United States v. LeVay, 76
F.3d 671 (5th Cir. 1996); United States v. Campbell, 61 F.3d 976 (1st
Cir. 1995); United States v. Palacios-Molina, 7 F.3d 49 (5th Cir.
1993); United States v. Johnson, 999 F.2d 1192 (7th Cir. 1993);
United States v. Newsome, 998 F.2d 1571 (11th Cir. 1993); United
States v. Salgado-Molina, 967 F.2d 27 (2d Cir. 1992); United States
v. Jennings, 945 F.2d 129 (6th Cir. 1991)), we observe that, while the
Federal Sentencing Guidelines mandate the use of the market-
oriented approach (U.S. Sentencing Guidelines Manual '2D1.1,
Commentary Note 1, at 120 (2001)), the same is not necessarily true
of section 841(b) of the United States Code (21 U.S.C. '841(b)
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(2000)), which establishes mandatory minimum sentences for
manufacturing methamphetamine. Defendants have only identified
two federal circuitsBthe sixth and seventhBthat apply the market-
oriented approach to methamphetamine sentencing under both the
guidelines and section 841(b). See Jennings, 945 F.2d at 136;
Stewart, 361 F.3d at 378; see also Johnson, 999 F.2d at 1196. The
State, by contrast, has identified four circuitsBthe fifth, eighth, ninth,
and tenthBthat have opted not to apply the market-oriented approach
under section 841(b). See Palacios-Molina, 7 F.3d at 53, citing
United States v. Sherrod, 964 F.2d 1501, 1510 (1992); Kuenstler, 325
F.3d at 1023; Sprague, 135 F.3d at 1306 n.4; Richards, 87 F.3d at
1157-58. Of the remaining cases cited by the parties, six merely
confirm, unremarkably, the federal courts= application of the market-
oriented approach under the guidelines. See Hardin, 437 F.3d at 469-
71; Zackery, 165 F.3d 22 (unpublished opinion); LeVay, 76 F.3d at
673-74; Campbell, 61 F.3d at 982-83; Newsome, 998 F.2d at 1575-
79; Salgado-Molina, 967 F.2d at 28-29. As for Combs, a recently
decided ninth circuit case, it does focus on section 841(b), but in the
context of a different issue: whether the transfer of methamphetamine
waste material for the sole purpose of disposal can support a
conviction for methamphetamine distribution under the statute. See
Combs, 379 F.3d at 569-71. Given the nuances of the federal case
law, it would be overly simplistic to characterize the federal
government=s Aregulatory system[ ]@ (720 ILCS 570/100(5) (West
2000)) for methamphetamine sentencing as the market-oriented
approach defendants urge us to adopt.
Defendants also argue that, taken together, various sections of the
Controlled Substances Act implicitly suggest the legislature intended
Asubstance containing methamphetamine@ to mean a substance that is
consumable. They contend that the Act=s definition of a Acontrolled
substance analog@ as Aintended for human consumption@ (720 ILCS
570/401 (West 2000)) indicates that the legislature intended
Asubstance containing methamphetamine@ to be interpreted the same
way. Additionally, defendants cite language from the Act=s statement
of legislative intent providing that one purpose of the Act is to
Aacknowledge the functional and consequential differences between
the various types of controlled substances and provide for
correspondingly different degrees of control over each of the various
types@ (720 ILCS 570/100(4) (West 2000)). According to defendants,
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the Afunctional and consequential differences@ between pure
methamphetamine and byproduct of the manufacturing process are
too great for the legislature to have intended to treat the substances
identically. Furthermore, defendants argue that because Schedule II
of the Act describes methamphetamine as Ahaving a stimulant effect
on the central nervous system@ (720 ILCS 570/206(d) (West 2000)),
the legislature must have been targeting usable methamphetamine.
Section 401 of the Act provides, in part, that A[f]or purposes of
this Section, >controlled substance analog= or >analog= means a
substance which is intended for human consumption, other than a
controlled substance, that has a chemical structure substantially
similar to that of a controlled substance *** or that was specifically
designed to produce an effect substantially similar to that of a
controlled substance ***.@ 720 ILCS 570/401 (West 2000). Contrary
to defendants= suggestion, this definition has no bearing on the
meaning of the phrase Asubstance containing methamphetamine@ in
section 401(a)(6.5)(D). Section 401(a)(6.5)(D) establishes the penalty
for manufacturing A900 grams or more of any substance containing
methamphetamine *** or an analog thereof.@ 720 ILCS
570/401(a)(6.5)(D) (West 2000). Reading this provision in
conjunction with the definition of Acontrolled substance analog,@ it is
evident that a Asubstance containing@ another substance that is
Aintended for human consumption@ need not itself be consumable.
As for defendants= reference to the Act=s statement of legislative
intent, we reiterate that a declaration of policy or a preamble is not a
part of the act itself (Brown, 64 Ill. 2d at 152) and has no substantive
legal force (Lieber, 176 Ill. 2d at 414). In enacting section
401(a)(6.5)(D), the legislature did not deem the difference between
usable methamphetamine and manufacturing byproduct containing
traces of the drug to be sufficiently Afunctional and consequential@
(720 ILCS 570/100(4) (West 2000)) to warrant Adifferent degrees of
control@ (720 ILCS 570/100(4) (West 2000)). Accordingly, it would
be inappropriate for us to do so here.
Turning to Schedule II, we observe that it enumerates various
substances that fall within the ambit of the Controlled Substances Act
(see 720 ILCS 570/201, 206 (West 2000)), including Aany material,
compound, mixture, or preparation which contains any quantity of the
following substances having a stimulant effect on the central nervous
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system: *** [m]ethamphetamine@ (720 ILCS 570/206(d) (West
2000)). Defendants incorrectly read the phrase Ahaving a stimulant
effect on the central nervous system@ as requiring any Amixture@
containing methamphetamine to have such an effect in order to
qualify as a controlled substance regulated by the Act. Under the
principle of statutory interpretation known as the last antecedent
doctrine, a referential and qualifying phrase refers solely to the last
antecedent. Bowman v. American River Transportation Co., 217 Ill.
2d 75, 83 (2005); People v. Davis, 199 Ill. 2d 130, 138 (2002);
Advincula v. United Blood Services, 176 Ill. 2d 1, 26 (1996). In
section 206(d), the last antecedent of the qualifying end phrase
Ahaving a stimulant effect on the central nervous system@ is
Afollowing substances,@ which refers to Aamphetamine,@
Amethamphetamine,@ Aphenmetrazine,@ and Amethylphenidate.@ See
720 ILCS 570/206(d) (West 2000). Thus, the phrase Ahaving a
stimulant effect on the central nervous system@ merely describes
methamphetamine and the other substances listed in conjunction with
it. It does not limit the coverage of the Act to mixtures containing
methamphetamine that are, as a whole, consumable, and thereby
capable of having an actual stimulant effect on the central nervous
system.
Finally, defendants urge this court to interpret section
401(a)(6.5)(D) of the Act in pari materia with section 401(a)(6.6)
(720 ILCS 570/401(a)(6.6) (West 2000)). Section 401(a)(6.6) of the
Act criminalizes the possession of methamphetamine manufacturing
chemicals with the intent to manufacture methamphetamine. 720
ILCS 570/401(a)(6.6) (West 2000). Defendants claim that, for
purposes of that offense, Asubstance containing methamphetamine@
refers only to usable methamphetamine. They reason that, if the
phrase were interpreted to refer to byproduct, then the Afirst few@
sentencing categories of section 401(a)(6.6), particularly that of
subparagraph (A), would be rendered null and void. This would be
so, they argue, because everyone who intends to manufacture
methamphetamine intends, ipso facto, to produce many hundreds of
grams of chemical byproduct, thus placing them outside the
sentencing categories in section 401(a)(6.6) that are applicable to
small amounts of a Asubstance containing methamphetamine.@ It
follows, defendants conclude, that Asubstance containing
methamphetamine@ in section 401(a)(6.5)(D) should also be
-15-
interpreted to refer only to usable methamphetamine. In response, the
State argues that section 401(a)(6.6) employs the Asubstance
containing methamphetamine@ language in the context of a different
offense than section 401(a)(6.5)(D), and that, accordingly, section
401(a)(6.6) has no bearing on the meaning of Asubstance containing
methamphetamine@ in section 401(a)(6.5)(D).
Under the doctrine of in pari materia, two statutes dealing with
the same subject will be considered with reference to one another to
give them harmonious effect. People v. Taylor, 221 Ill. 2d 157, 161
n.1 (2006). The doctrine is also applicable to different sections of the
same statute, and is consistent with the fundamental rule of statutory
interpretation that all the provisions of a statute must be viewed as a
whole. Land v. Board of Education of the City of Chicago, 202 Ill. 2d
414, 422 (2002). For present purposes, we need not undergo an
exhaustive analysis of how to determine sentencing weights under
section 401(a)(6.6). Assuming, arguendo, that, as defendants suggest,
section 401(a)(6.6) refers only to the amount of usable
methamphetamine that an individual could produce using the
precursor chemicals in his or her possession, it does not follow that
section 401(a)(6.5)(D) must also refer to usable methamphetamine
for the provisions to be interpreted harmoniously. Manufacturing a
substance containing methamphetamine and possessing a
methamphetamine manufacturing chemical with the intent to
manufacture a substance containing methamphetamine are different
offenses that target different conduct. To sustain a conviction for the
latter offense, the State does not have to demonstrate that an
individual actually produced a Asubstance containing
methamphetamine.@ It is sufficient to show that the individual
intended to do so. See, e.g., People v. Dorsey, 362 Ill. App. 3d 263,
268 (2005) (AIntent to manufacture is clearly a substitute for actual
manufacture@). Thus, under section 401(a)(6.6), the applicable
sentence depends on an estimation of the amount of Asubstance
containing methamphetamine@ that an individual intended to, but did
not actually, manufacture. In contrast, under section 401(a)(6.5)(D),
the applicable sentence depends on the weight of an actual substance
containing successfully manufactured methamphetamine. Defendants=
reading of section 401(a)(6.6) and section 401(a)(6.5)(D) is premised
on the mistaken assumption that the sentencing weights for two
discrete offenses must be calculated by identical means.
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II. Constitutionality of Section 401(a)(6.5)(D)
Having concluded that, for purposes of section 401(a)(6.5)(D),
Asubstance containing methamphetamine@ includes the byproduct
produced during the manufacture of methamphetamine, we examine
the constitutionality of section 401(a)(6.5)(D). Defendants argue that
section 401(a)(6.5)(D), as interpreted above, violates both the
proportionate penalties clause (Ill. Const. 1970, art. I, '11) and the
due process clause (Ill. Const. 1970, art. I, '2) of the Illinois
Constitution. Whether a statute is constitutional is a question of law,
which we review de novo. People v. Guevara, 216 Ill. 2d 533, 541
(2005). In general, statutes carry a strong presumption of
constitutionality, and a party challenging a statute has the burden of
rebutting that presumption. People v. Cornelius, 213 Ill. 2d 178, 189
(2004). In addition, a court has a duty to uphold the constitutionality
of a statute if it is reasonably possible to do so. People v. Dinelli, 217
Ill. 2d 387, 397 (2005).
At the outset, we observe that defendants= proportionate penalties
and due process challenges overlap considerably with one another, as
well as with their contention that interpreting Asubstance containing
methamphetamine@ to include the byproduct of the methamphetamine
manufacturing process produces absurd results. Defendants argue that
section 401(a)(6.5)(D) violates the proportionate penalties clause
because it is Acruelly harsh@ to penalize an individual who
manufactures a substance that contains no usable methamphetamine
with the same term of imprisonment as an individual who
manufactures an identical quantity of pure methamphetamine.
Similarly, defendants argue that section 401(a)(6.5)(D) violates the
due process clause because, given that they produced no usable
methamphetamine, their 15-year minimum sentences are not
reasonably designed to remedy the harm the legislature sought to
address in establishing that penalty. Defendants assert that it is unfair
to punish a methamphetamine manufacturer who has not produced
usable methamphetamine as severely as one who has by basing the
penalty for manufacturing methamphetamine on the gross weight of
any substance produced that contains the drug.
In response, the State argues that defendants= proportionate
penalties challenge relies on cross-comparison analysis, which this
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court rejected in People v. Sharpe, 216 Ill. 2d 481 (2005).
Alternatively, the State argues that, to the extent defendants claim
their sentences are cruel and degrading, they fail to acknowledge the
dangers unique to manufacturing methamphetamine that justify their
15-year terms of imprisonment. Similarly, with respect to defendants=
due process challenge, the State argues that by imposing a sentence
based on the weight of the entire mixture in which methamphetamine
is being manufactured, the legislature targeted both the threat to
public safety that arises from making an addictive, harmful drug and
the threat that arises from doing so using a highly dangerous method.
A. Proportionate Penalties Challenge
We first address defendants= proportionate penalties challenge.
The proportionate penalties clause of the Illinois Constitution
requires the legislature to determine a penalty according to the
seriousness of the offense, and with the objective of restoring the
offender to useful citizenship. Ill. Const. 1970, art. I, '11. Prior to our
decision in Sharpe, 216 Ill. 2d 481, a defendant could challenge a
penalty pursuant to the proportionate penalties clause by (1)
comparing it to the penalty for a similar offense with different
elements, (2) comparing it to the penalty for an offense with identical
elements, or (3) arguing that the penalty was cruel, degrading, or so
wholly disproportionate to the offense committed as to shock the
moral sense of the community. See, e.g., People v. Moss, 206 Ill. 2d
503, 522 (2003). In Sharpe, we abandoned cross-comparison analysis
as part of our proportionate penalties jurisprudence. Sharpe, 216 Ill.
2d at 519-21. Thus, a defendant may no longer premise a
proportionate penalties challenge on the comparison of similar
offenses with different elements. Sharpe, 216 Ill. 2d at 521. A
defendant may, however, still argue that a penalty for a particular
offense violates the Acruel or degrading@ standard or is harsher than
the penalty for an offense with identical elements. Sharpe, 216 Ill. 2d
at 521.
As mentioned, the State suggests that defendants= proportionate
penalties challenge is based on a comparison of two offenses with
different elements: manufacturing methamphetamine and distributing
methamphetamine. Defendants did partially rely on a cross-
comparison analysis of these two offenses before the appellate court
-18-
(McCarty, 356 Ill. App. 3d at 563; Reynolds, 358 Ill. App. 3d at 296),
but their appeals were decided prior to Sharpe. While they could have
stated the precise basis for their present proportionate penalties
challenge more clearly, we do not understand them to renew their
cross-comparison argument, but rather to assert that the 15-year
mandatory minimum sentence set forth in section 401(a)(6.5)(D)
violates the Acruel or degrading@ standardBi.e., that it is Acruelly
harsh@ to penalize an individual who manufactures a substance that
contains only traces of unusable methamphetamine as severely as one
who manufactures an identical quantity of usable methamphetamine.
We find defendants= argument unavailing. In general, Athe
legislature has the authority to set the nature and extent of criminal
penalties,@ and Acourts may not interfere with such legislation unless
the challenged penalty is clearly in excess of the very broad and
general constitutional limitations applicable.@ People v. Morgan, 203
Ill. 2d 470, 488 (2003), overruled on other grounds by Sharpe, 216
Ill. 2d at 519. As we noted in rejecting defendants= assertion that our
interpretation of section 401(a)(6.5)(D) produces absurd results,
manufacturing methamphetamine is a dangerous process involving
toxic and combustible chemicals, and regardless of whether an
individual successfully completes the methamphetamine
manufacturing process, merely engaging in it poses a serious threat to
public safety. Accordingly, we cannot say that the sentencing
category established by section 401(a)(6.5)(D) is cruel or degrading
or a shock to the moral sense of the community just because the
legislature has chosen not to condition an individual=s eligibility for it
on the level of refinement the individual achieves during the
methamphetamine manufacturing process. We therefore conclude
that section 401(a)(6.5)(D) does not violate the proportionate
penalties clause.
B. Due Process Challenge
Turning to defendants= due process challenge, we note that to
satisfy the requirements of the due process clause, a penalty must be
reasonably designed to remedy the particular evil that the legislature
was targeting. Sharpe, 216 Ill. 2d at 531, citing People v. Steppan,
105 Ill. 2d 310, 319 (1985). In arguing that section 401(a)(6.5)(D)=s
-19-
failure to account for the difference between pure methamphetamine
and manufacturing byproduct violates this standard, defendants rely
heavily on the Controlled Substance Act=s statement of legislative
intent, which provides in part that: AIt is not the intent of the General
Assembly to treat the unlawful user or occasional petty distributor of
controlled substances with the same severity as the large-scale,
unlawful purveyors and traffickers of controlled substances.@ 720
ILCS 570/100 (West 2000). Defendants interpret this provision to
indicate that the legislature did not intend to treat Aminor players@ in
the drug trade as harshly as Akingpins,@ and they style themselves the
former. In addition, defendants suggest that because the legislature
has enacted other statutes that prohibit the dangerous conduct
associated with manufacturing methamphetamine (see 720 ILCS
570/401(a)(6.6) (West 2000) (prohibiting possession of
methamphetamine manufacturing chemicals with intent to
manufacture methamphetamine); 415 ILCS 5/12(a) (West 2000)
(prohibiting water pollution); 415 ILCS 5/21(a) (West 2000)
(prohibiting land pollution); 720 ILCS 5/20B1.4 (West 2004)
(criminalizing controlled substance manufacturing arson); 720 ILCS
5/20B1.5 (West 2004) (criminalizing aggravated controlled substance
manufacturing arson)), it follows that section 401(a)(6.5)(D)=s
coverage of that conduct is irrational.
With respect to defendants= reference to the Act=s statement of
legislative intent, we initially observe that the provision they cite
focuses on punishment for users and distributors of controlled
substances. See 720 ILCS 570/100 (West 2000) (contrasting
Aunlawful user[s]@ and Aoccasional petty distributor[s]@ with Alarge-
scale, unlawful purveyors and traffickers@). Defendants were not
simply Auser[s]@ or Aoccasional petty distributor[s]@ of
methamphetamine. They were manufacturers of the drug, albeit
unsuccessful ones. Therefore, the provision on which they rely is
inapposite.
More importantly, the Act=s statement of legislative intent
indicates that the legislature had multiple purposes in mind in
promulgating the Act. For instance, the legislature indicated its intent
to A(1) limit access of [controlled] substances only to those persons
who have demonstrated an appropriate sense of responsibility and
have a lawful and legitimate reason to possess them [and] (2) deter
the unlawful and destructive abuse of controlled substances.@ 720
-20-
ILCS 570/100 (West 2000). The legislature could reasonably have
concluded that punishing manufacturers of methamphetamine with a
strict penalty, regardless of the ultimate success of their enterprise,
discourages even casual experimentation with producing the drug,
thereby reducing the quantity of the drug available to individuals with
no Alegitimate reason to possess@ it (720 ILCS 570/100(1) (West
2000)), and preventing its Aunlawful and destructive abuse@ (720
ILCS 570/100(2) (West 2000)). Furthermore, given the unique
dangers associated with the manufacture of methamphetamine, the
legislature could reasonably have determined that punishing the
manufacturing process is equally as important as punishing its result.
As for defendants= argument that, insofar as section
401(a)(6.5)(D) targets the dangers of the methamphetamine
manufacturing process, it is duplicative, and thus irrational, we
simply note that we see no irrationality in an attempt by the
legislature to target a threat to the welfare of the public from as many
angles as it deems necessary. As we have noted in the past, Athe
legislature has broad discretion to determine not only what the public
interest and welfare require, but to determine the measures needed to
secure such interest.@ Chicago National League Ball Club, Inc. v.
Thompson, 108 Ill. 2d 357, 364 (1985).
Unquestionably, then, section 401(a)(6.5)(D) is reasonably
designed to remedy the particular evils the legislature was targeting
in enacting it. Sharpe, 216 Ill. 2d at 531, citing Steppan, 105 Ill. 2d at
319. We find no due process violation in the legislature=s
determination that manufacturing greater than 900 grams of a
substance containing methamphetamine, regardless of whether the
methamphetamine is usable, merits a penalty of 15 to 60 years=
imprisonment.
III. Constitutionality of Search Warrant
Finally, we turn to the issue of whether the warrant in this case
was unconstitutional. The fourth amendment of the United States
Constitution provides, in relevant part, that Ano Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized.@ U.S. Const., amend. IV. Likewise, section 6 of
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article I of the Illinois Constitution states ANo warrant shall issue
without probable cause, supported by affidavit particularly describing
the place to be searched and the persons or things to be seized.@ Ill.
Const. 1970, art. I, '6. See also 725 ILCS 5/108B7 (West 2000)
(requiring the place or person to be searched and the items to be
seized to be Aparticularly described in the warrant@).
Defendants challenge the constitutionality of the warrant on three
bases. First, they argue that the warrant failed to describe the place to
be searched with sufficient particularity. Second, they argue that the
warrant failed to describe the items to be seized with sufficient
particularity. Third, they argue that the warrant was overly broad
because insufficient probable cause supported the warrant=s
authorization to search certain places and individuals. Before
examining these arguments, we address the State=s contention that
defendants have forfeited their challenges to the constitutionality of
the warrant.
The State correctly points out that McCarty did not challenge the
constitutionality of the warrant in a posttrial motion (see Cuadrado,
214 Ill. 2d at 89 (failure to raise issue in posttrial motion results in
forfeiture of issue on appeal)) or in his petition for leave to appeal
(see Carter, 208 Ill. 2d at 318 (failure to raise issue in petition for
leave to appeal results in forfeiture of issue before this court)). The
State also correctly points out that Reynolds did not challenge the
constitutionality of the warrant in her petition for leave to appeal. See
Carter, 208 Ill. 2d at 318. We add that McCarty did not object to the
admission of the evidence obtained pursuant to the warrant at trial.
See Enoch, 122 Ill. 2d at 186 (objection at trial necessary to preserve
error for appellate review). We also add that neither McCarty nor
Reynolds raised their arguments regarding the lack of particularity in
the warrant=s description of the items to be seized or the overbreadth
of the warrant in their motions to suppress or at their consolidated
suppression hearing. Thus, the circuit court did not consider these
arguments. See People v. Holloway, 86 Ill. 2d 78, 91 (1981) (issues
not raised in circuit court generally considered forfeited on appeal).
For these reasons, both McCarty and Reynolds have forfeited their
arguments regarding the warrant=s lack of particularity and their
argument regarding the overbreadth of the warrant.
-22-
We observe, however, that the appellate court reviewed
McCarty=s and Reynolds= challenges to the constitutionality of the
warrant on the merits. McCarty, 356 Ill. App. 3d at 559-62; Reynolds,
358 Ill. App. 3d at 294-96. Furthermore, we granted McCarty and
Reynolds leave to file supplemental briefs addressing the
constitutionality of the warrant. In light of these considerations, and
because the rule of forfeiture is Aan admonition to the parties and not
a limitation on the jurisdiction of this court@ (People v. Normand, 215
Ill. 2d 539, 544 (2005); Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967)),
we choose to review defendants= arguments regarding the lack of
particularity and the overbreadth of the warrant on the merits.
Accordingly, we set forth the relevant facts.
The evidence presented at defendants= consolidated suppression
hearing reveals that, on December 20, 2001, Deputy Mark Rose of
the Marion County sheriff=s department received a phone call from a
confidential informant who claimed to have information about a local
methamphetamine lab. Deputy Rose and the informant appeared
before a judge, and the informant signed a complaint for a search
warrant under oath.
In the complaint, the informant described the places to be
searched as ARoger McCarty=s trailer located approximately 3/4 of a
mile south of the intersection of Kinlou Rd[.] [and] O=Leary Rd.[,]
being the 3rd traler [sic] east of O=Leary Rd[.][,] and a camper
located in the woods east of the trailer.@ The informant described the
items to be seized as Athe following instruments, articles, and things
which have been used in the commission of, or which constitute
evidence of, the offense of [unlawful possession] of
methamphetamine[:] any and all quantities of methamphetamine[,]
records of drug transactions[,] drug paraphernalia[,] [and] United
States currency.@ The informant further stated that he had probable
cause to believe the items to be seized were presently located on the
described premises. He alleged that, earlier that day, he had been to
McCarty=s trailer and had seen McCarty smoking methamphetamine.
In addition, he alleged that AMcCarty had more methamphetamine
and admitted to manufacturing methamphetamine at this location.@
Based on the information provided in the complaint, the judge
issued a warrant authorizing the search of Athe trailer of Roger
McCarty located approximately 3/4 of a mile south of the intersection
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of Kinlou Rd[.] [and] O=Leary Rd[.][,] being the 3rd trailer east of
O=Leary Rd[.][,] and a camper located in the woods east of the trailer,
including outbuildings, motor vehicles[,] [and] occupants.@ The
warrant further authorized the seizure of Athe following instrument
[sic], articles[,] and things which have been used in the commission
of, or which constitute evidence of, the offense of [unlawful
possession] of methamphetamine ***: any and all quantities of
methamphetamine[,] records of drug transactions[,] drug
paraphernalia[,] [and] United States currency.@
Later that day, Deputy Rose and a group of other police officers
drove to the property where the trailer described in the warrant was
located to execute the warrant. The property is in a rural area
approximately five miles east of Kinmundy, Illinois. O=Leary Road
runs north and south along the property=s western edge, and a private
drive extends eastward onto the property from O=Leary Road before
gradually curving north. At the time of the search, the property
contained a total of four trailers located at various intervals along the
private drive. They were, from the beginning of the private drive
onward: 7912 O=Leary Road, a trailer with no address, 7910 O=Leary
Road, and 7914 O=Leary Road.
The officers arrived at the property around 1:45 p.m. and
proceeded to the trailer at 7914 O=Leary Road. They detained two
individuals in the vicinity of the trailer, Allen Keen and Rita Smith,
and Deputy Rose knocked on the trailer door, announcing he had a
search warrant. Deputy Rose waited approximately five seconds, and
when no one responded, he entered the trailer. The occupants
included McCarty, Reynolds, and McCarty=s teenage son. McCarty=s
son was taken to his grandfather=s residence, the trailer with the
address of 7910 O=Leary Road. Reynolds was escorted from the
trailer and detained outside. Deputy Rose spoke with McCarty, who
identified himself and gave his address as 7912 O=Leary Road.
Subsequently, the officers conducted a search of the trailer, the
nearby camper, and the surrounding area. As mentioned, the search
divulged four containers of liquid later confirmed to contain
methamphetamine, various items commonly used to manufacture
methamphetamine, cash, and cannabis. As a result of the search,
McCarty and Reynolds were placed under arrest.
-24-
After the search, Deputy Rose prepared a narrative report in
which he noted the address of the trailer searched as 7912 O=Leary
Road. Deputy Rose was questioned extensively on this point at the
suppression hearing. He testified that he did not know the address of
the trailer prior to the search, and that he relied on the informant=s
description of the location of the trailer to serve the warrant.
According to Deputy Rose, he was familiar with the layout of the
property on which the trailer was located and knew which trailer the
informant described because he had served papers on the property in
the past. He did not learn that the address of the trailer that was
searched was 7914 O=Leary Road until defendants= preliminary
hearing. Deputy Rose explained that 7912 O=Leary Road was the
address McCarty gave him when he interviewed McCarty on the
scene, and that, at the time the warrant was served, he believed
McCarty owned and lived in the trailer that was searched. Deputy
Rose also testified that he was unaware of the presence of the trailer
with no address until returning to the property after the search. He
described that trailer as still being on wheels and containing no
decorative Aunderpinning@ to hide them. According to Deputy Rose,
the trailer was Asomewhat hidden@ from the road. When asked why he
did not go to the property prior to executing the warrant to check how
many trailers were on the property, Deputy Rose responded that
O=Leary Road is clearly visible from the trailers at 7912 and 7914
O=Leary Road, and he did not want to raise the suspicion of anyone
on the property.
Deputy Rose was also questioned extensively regarding various
distance measurements, particularly the driving distance between the
Kinlou Road-O=Leary Road intersection and the trailer at 7914
O=Leary Road. Ultimately, Deputy Rose opined that the mileage
description in the search warrant was relatively accurate and
concluded that the driving distance from the intersection to the trailer
at 7914 O=Leary Road was between three-quarters of a mile and a
mile.
Deputy Ernie Clifton of the Marion County sheriff=s department
also testified at the suppression hearing. Deputy Clifton was involved
in the execution of the search warrant. He testified that Deputy Rose
led the other officers to the property where the trailer described in the
warrant was located. Like Deputy Rose, Deputy Clifton claimed not
to have noticed the trailer with no address on the day the warrant was
-25-
executed. He explained that, at the time, his attention was focused on
the trailer at 7914 O=Leary Road. According to Deputy Clifton, there
was not much foliage on the trees surrounding that trailer, because
the search was conducted in December. Thus, Deputy Clifton was
able to see it Aeven when [the officers] were coming down O=Leary
Road@ toward the property. Deputy Clifton, like Deputy Rose,
testified that the driving distance between the Kinlou Road-O=Leary
Road intersection and the trailer at 7914 O=Leary Road was between
three-quarters of a mile and a mile.
Defendant Reynolds was the next to testify. She stated that she
owned the trailer located at 7914 O=Leary Road, and that she lived
there with her daughter and McCarty=s son. According to Reynolds,
she had purchased the trailer from McCarty=s parents in 2000.
Reynolds testified that she and McCarty were engaged. She stated
that McCarty stayed at her trailer from time to time, sometimes every
other weekend, sometimes as often as 10 times a month. She also
stated that McCarty kept personal items at her trailer, that she did his
laundry there, that McCarty had helped her complete various
improvements on her property, and that McCarty was free to come
and go as he pleased from her trailer.
Reynolds also described two of the other trailers. The trailer at
7910 O=Leary Road, she testified, was just south of hers and belonged
to McCarty=s father. She further testified that McCarty owned the
trailer with no address. McCarty=s sister and his brother-in-law,
Reynolds said, had moved the trailer onto the property. She described
the trailer as located on a slightly raised area next to a shed and barn.
According to Reynolds, it still had a hitch, it was on wheels, and it
had no underpinning. The trailer had no address, Reynolds stated,
because it was not used as a residence and was, at present, basically
abandoned.
McCarty=s son also testified briefly. He confirmed that he lived at
7914 O=Leary Road with Reynolds. He also stated that his father
stayed there sometimes.
Finally, McCarty testified. He claimed he did not reside at
Reynolds= trailer at the time of the search, but rather that he moved
back and forth between his father=s trailer, his sister=s trailer, and
Reynolds= trailer. McCarty clarified that his sister lived in the trailer
at 7912 O=Leary Road. With respect to the trailer with no address,
-26-
McCarty confirmed that he had purchased it from his sister and his
brother-in-law. They had moved the trailer onto the property, he said,
in October 2001, and he had bought it in November of the same year.
McCarty admitted to being in Reynolds= trailer the morning of the
search but denied spending the previous night there.
In denying defendants= motions to suppress, the circuit court
concluded that Deputy Rose=s and Deputy Clifton=s testimony that
they had not seen the trailer with no address was credible. The court
also found credible Deputy Rose=s testimony that he was familiar
with the trailer described by the informant. In addition, the court
accepted Reynolds= testimony that the trailer with no address was
unoccupied and did not appear to be a residential dwelling, that
McCarty=s teenage son lived with her in the trailer at 7914 O=Leary
Road, and that McCarty often stayed with her. The court did not
consider Deputy Rose=s mistake in recording the address of the trailer
that was searched to be significant, because the warrant and the
complaint did not describe the trailer by address, the addresses of the
trailers were not in the usual ascending order, and the trailer was
located in a rural area, which was accurately described in the
complaint and the warrant. Resolving the factual discrepancies in
favor of the State, the court found that the warrant was properly
executed.
A circuit court=s ruling on a motion to suppress presents both
questions of law and fact. People v. Smith, 214 Ill. 2d 338, 347
(2005). The court=s findings of historical fact will be upheld unless
they are against the manifest weight of the evidence. People v.
Phillips, 215 Ill. 2d 554, 566 (2005). The ultimate determination
whether the evidence should have been suppressed based on the
findings of fact is a question of law and is reviewed de novo. People
v. Pitman, 211 Ill. 2d 502, 512 (2004). We turn now to defendants=
challenges to the constitutionality of the warrant.
A. Particularity of Description of Place to Be Searched
We first address whether the warrant described the place to be
searched with sufficient particularity. Defendants argue that the
warrant failed to describe the place to be searched with sufficient
particularity because the trailer searched was not Roger McCarty=s, it
was not the Athird@ trailer east of O=Leary Road, and it was not three-
quarters of a mile from the intersection of Kinlou Road and O=Leary
-27-
Road. In response, the State contends that the suppression hearing
testimony demonstrated that McCarty resided at the trailer, that the
trailer was either the third one on the private drive connected to
O=Leary Road or the trailer Deputy Rose believed to be the third, and
that, in any case, Deputy Rose knew which trailer was being
described by the informant and went to that trailer when executing
the warrant. Parenthetically, we note that defendants do not
differentiate between the particularity of the warrant=s description of
the trailer and the particularity of the warrant=s description of the
camper. The clear implication of their position, however, is that the
lack of particularity in the description of the trailer renders the entire
warrant unconstitutional. Cf. People v. McCoy, 135 Ill. App. 3d 1059,
1067 (1985) (A[I]t is generally held that partial invalidity of a search
warrant does not taint the whole warrant. [Citation.] A court will just
sever the tainted part from the rest of the warrant. [Citation.]@) Here,
we need express no opinion on whether the warrant=s description of
the camper is severable from its description of the trailer, because as
we shall explain, the latter was sufficiently particular.
A search warrant=s description is sufficient if it enables the officer
executing the warrant, with reasonable effort, to identify the place to
be searched. People v. Watson, 26 Ill. 2d 203, 206 (1962); Steele v.
United States, 267 U.S. 498, 503, 69 L. Ed. 757, 760, 45 S. Ct. 414,
416 (1925) (AIt is enough if the description is such that the officer
with a search warrant can, with reasonable effort ascertain and
identify the place intended@). This case does not involve a warrant
that is deficient on its face. See, e.g., People v. Redmond, 43 Ill. App.
3d 682, 682-83 (1976) (warrant said place to be searched was ground
level apartment, but also described it as being reached by going up 12
steps). Rather, it involves a situation where the execution of a facially
valid warrant revealed facts that called into question the precision of
the warrant=s description of the place to be searched. Here, we cannot
say that the degree of imprecision that became apparent in retrospect
with respect to the execution of the warrant was so great as to render
the warrant=s description unconstitutionally vague. In other words,
based on the totality of the circumstances surrounding the execution
of the warrant, we cannot conclude that it did not set forth as
sufficiently as possible a description which would enable a police
officer using reasonable efforts to identify the area to be searched
-28-
with the requisite degree of certainty. See People v. Curry, 56 Ill. 2d
162, 171 (1973).
In this case, the warrant did not list the specific postal address of
the premises to be searched. Therefore, the confusion that occurred
regarding the addresses of the various trailers subsequent to the
execution of the warrant is inapposite. Instead, the warrant described
the location to be searched with respect to three factors: (1) the
identity of an individual, (2) the approximate mileage between an
intersection and the property on which the trailer to be searched was
located, and (3) the position of that trailer in relation to other trailers.
The description was accurate with regard to the first factor, as it is
undisputed that McCarty stayed regularly at the trailer that was
searched, kept personal belongings there, and came and went from it
as he pleased. Furthermore, McCarty=s son lived there. Thus, while
McCarty did not hold title to the trailer, he did exhibit numerous
indicia of permanent occupancy.
The description=s reference to the second factor was similarly
accurate. As the warrant noted, the three-quarters of a mile distance
measurement was an approximation. This approximation was
sufficiently specific to direct the officers executing the search warrant
to the property on which the particular trailer to be searched was
located, as it is undisputed that driving three-quarters of a mile south
from the Kinlou Road-O=Leary Road intersection would, at a
minimum, place an individual at the beginning of the private drive
and, at a maximum, place him at the doorstep of the trailer that was
searched.
Finally, the description=s reference to the third factor, the position
of the trailer searched in relation to the other trailers, was also
accurate. There unquestionably were four trailers located alongside
the private drive. However, only three of those trailers were
inhabited, and the appearance of the trailer that was not stood in
marked distinction to the appearances of those that were. The
uninhabited trailer still had wheels and a hitch, and it lacked
underpinning. It was also positioned on a slight incline adjacent to a
farm building. Furthermore, the testimony at the suppression hearing
indicated that all of the other trailers were visible prior to the
uninhabited trailer upon approaching the property from the Kinlou
Road-O=Leary Road intersection.
-29-
In cases such as this one, where the particularity of a warrant is
called into question only upon its execution, and where the extent of
the warrant description=s inaccuracy is minimal, courts generally are
Areceptive to a showing that the executing officer had some other
information ***, via the warrant affidavit or otherwise, which made it
apparent which place was intended.@ 2 W. LaFave, Search & Seizure
'4.5(a), at 570 (4th ed. 2004). We believe this to be a sensible
approach and therefore make note in this case of the fact that Deputy
Rose, the officer in charge of executing the warrant, had served
papers at the trailer that was searched on a previous occasion and was
therefore familiar with its location. See also People v. Burmeister,
313 Ill. App. 3d 152, 158 (2000) (AInaccuracies will not necessarily
invalidate a warrant if the officer applying for the warrant also
executed the warrant@). This factor, coupled with those discussed
above, persuades us to conclude that the warrant=s description of the
premises to be searched was sufficiently particular.
B. Particularity of Description of Items to Be Seized
We next address whether the warrant described the items to be
seized with sufficient particularity. It is well established that, in a
search warrant, A[a] minute and detailed description of the property to
be seized is not required.@ People v. Prall, 314 Ill. 518, 523 (1924);
see also People v. Batac, 259 Ill. App. 3d 415, 420 (1994); People v.
Allbritton, 150 Ill. App. 3d 545, 546 (1986). Rather, Athe property
must be so definitely described that the officer making the search will
not seize the wrong property.@ Prall, 314 Ill. at 523; see also Batac,
259 Ill. App. 3d at 420; Allbritton, 150 Ill. App. 3d at 546. Generally,
Awhen property of a specified nature is to be seized rather than
particular property then a description of its characteristics is
sufficient.@ Curry, 56 Ill. 2d at 171, citing Prall, 314 Ill. at 523.
Here, the warrant described the items to be seized as
Amethamphetamine[,] records of drug transactions[,] drug
paraphernalia[,] and United States currency.@ The warrant thus was
not directed at particular property, but rather at items associated with
the use, manufacture, and distribution of methamphetamineBitems
which, as the appellate court noted in Reynolds= appeal, Aare easily
identified as contraband by a trained officer.@ Reynolds, 358 Ill. App.
3d at 295; see also United States v. Wicks, 995 F.2d 964, 973-74
-30-
(10th Cir. 1993) (collecting cases in which general descriptions of
drug-related items in warrants were deemed sufficiently particular).
Furthermore, defendants have provided us with no indication that it
would have been possible to provide a more precise description of the
items to be seized at the time the warrant was issued. Cf. People v.
Capuzi, 308 Ill. App. 3d 425, 432-33 (1999) (particularity of
description insufficient where property to be seized consisted of
items stolen in robbery and officer who obtained warrant could have,
but did not, utilize additional information collected during
investigation to provide more detailed description of items).
Accordingly, we conclude that the warrant described the items to be
seized with sufficient particularity.
C. Sufficiency of Probable Cause
Finally, we turn to defendants= contentions regarding the alleged
Aoverbreadth@ of the warrant. Defendants use this term and variations
of it liberally, and not always consistently, throughout their
supplemental briefs. Generally, however, we understand them to
argue that insufficient probable cause supported the warrant=s
authorization to search certain places and individuals. Thus, before
addressing defendants= particular arguments, we review the principles
relevant to evaluating probable cause.
Whether probable cause exists in a particular case depends on the
totality of facts and circumstances known to an affiant applying for a
warrant at the time the warrant is sought. People v. Free, 94 Ill. 2d
378, 400 (1983). Thus, the existence of probable cause in a particular
case means simply that the totality of the facts and circumstances
within the affiant=s knowledge at that time Awas sufficient to warrant
a person of reasonable caution to believe that the law was violated
and evidence of it is on the premises to be searched.@ People v.
Griffin, 178 Ill. 2d 65, 77 (1997). Accordingly, the probable cause
requirement is Arooted in principles of common sense.@ People v.
Hickey, 178 Ill. 2d 256, 285 (1997). The issuing magistrate=s task A >is
simply to make a practical, commonsense decision whether, given all
the circumstances set forth in the affidavit before him, including the
Averacity@ and Abasis of knowledge@ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of
a crime will be found in a particular place.= @ Hickey, 178 Ill. 2d at
-31-
285, quoting Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d
527, 548, 103 S. Ct. 2317, 2332 (1983). In light of these
considerations, a reviewing court must not substitute its judgment for
that of the magistrate in construing an affidavit. People v. Stewart,
105 Ill. 2d 22, 49 (1984). Rather, the court must merely decide
whether the magistrate had a A >substantial basis= @ for concluding that
probable cause existed. Stewart, 105 Ill. 2d at 49, quoting
Massachusetts v. Upton, 466 U.S. 727, 732-33, 80 L. Ed. 2d 721,
727, 104 S. Ct. 2085, 2088 (1984).
Defendants briefly suggest that the warrant in this case was
overly broad because the complaint did not establish probable cause
to search the camper, given that the informant did not claim he
actually saw the camper. Initially, we note that a sworn complaint
supporting a search warrant is presumed valid (People v. Martine,
106 Ill. 2d 429, 435 (1985), quoting Franks v. Delaware, 438 U.S.
154, 171, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684 (1978)), and
here, defendants have not challenged the veracity of the statements in
the complaint. Thus, for purposes of this appeal, we view those
statements as true. See, e.g., People v. Gardner, 121 Ill. App. 3d 464,
467 (1984). Accordingly, defendants= argument is belied simply by a
Acommonsense and realistic@ (Griffin, 178 Ill. 2d at 77; Stewart, 105
Ill. 2d at 49, quoting United States v. Ventresca, 380 U.S. 102, 108,
13 L. Ed. 2d 684, 689, 85 S. Ct. 741, 746 (1965)) reading of the
complaint. The complaint describes one of the places to be searched
as Aa camper located in the woods east of the trailer@ and alleges that
AMcCarty had more methamphetamine *** at this location.@ Surely,
in this context, the Alocation@ to which the complaint refers can be
considered to encompass the trailer and the camper, and the fact the
informant knew McCarty had more methamphetamine at the trailer
and the camper supports the inference that the informant saw the
camper. In addition, seeing the camper was not the only basis for the
informant to develop probable cause to believe McCarty was
engaging in illegal activity there. As the complaint states, McCarty
admitted to manufacturing methamphetamine on the described
premises. Therefore, defendants= argument that there was insufficient
probable cause to support the warrant=s authorization to search the
camper is without merit.
Defendants also claim that the warrant was overly broad because
the complaint did not establish probable cause to seize AUnited States
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currency@ and Adrug paraphernalia.@ The use of methamphetamine
alleged in the complaint, they argue, does not necessarily involve
either of the above. Again, reading the complaint in a Acommonsense
and realistic@ manner (Griffin, 178 Ill. 2d at 77; Stewart, 105 Ill. 2d at
49, quoting Ventresca, 380 U.S. at 108, 13 L. Ed. 2d at 689, 85 S. Ct.
at 746), we disagree with defendants= interpretation of it. Despite
defendants= assertion to the contrary, we do not think it at all
uncommon for the use of a substance such as methamphetamine to
involve drug paraphernalia. Moreover, the complaint supports a
finding of probable cause to believe McCarty was engaging in the
manufacture of methamphetamine, not simply its use, and it is
reasonable to infer that the manufacture of methamphetamine could
eventually result in its sale, which involves the exchange of currency.
Defendants further claim that the warrant was overly broad
because it allowed the search and seizure of all Aoccupants@ of the
location described in the warrant even though the complaint only
identified McCarty as the user and manufacturer of
methamphetamine. This argument is problematic for a number of
reasons. Initially, we note that an individual cannot complain about
the violation of another=s fourth amendment rights, because such
rights are personal and may not be asserted vicariously. People v.
James, 118 Ill. 2d 214, 226 (1987); Alderman v. United States, 394
U.S. 165, 174, 22 L. Ed. 2d 176, 187, 89 S. Ct. 961, 966-67 (1969).
Thus, to the extent the warrant authorized the search of Allen Keen
and Rita Smith, defendants have no standing to complain.
Furthermore, defendants have failed to explain how qualifying as
Aoccupants@ of the property within the meaning of the warrant
violated their own fourth amendment rights. Defendants correctly
note that in Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S.
Ct. 338 (1979), the United States Supreme Court held that
independent probable cause is required before police can validly
search a person who is present at a place being searched under a
warrant, but who is not named in the warrant. Ybarra, 444 U.S. at 91,
62 L. Ed. 2d at 245, 100 S. Ct. at 342. However, there is no evidence
in the record indicating that either McCarty or Reynolds was
searched when the officers arrived at the trailer to execute the
warrant, and thus no basis for concluding that the warrant was
-33-
utilized in violation of Ybarra. The record does show that McCarty
and Reynolds were detained while the officers were executing the
warrant and placed under arrest after the officers discovered evidence
of methamphetamine manufacturing on the premises. Neither
defendant, however, has argued that his or her detention or
subsequent arrest was justified solely by his or her designation as an
Aoccupant[ ]@ under the warrant. Cf. People v. Edwards, 144 Ill. 2d
108, 126 (1991) (AFor fourth amendment purposes, a warrant to
search for contraband, founded on probable cause, implicitly carries
with it the authority to detain occupants of the premises while the
search is being conducted. [Citation.] If, in the course of the search,
evidence establishing probable cause to arrest one or more of the
occupants of the house is found, an arrest and a search incident
thereto are constitutionally permissible. [Citation.]@), citing Michigan
v. Summers, 452 U.S. 692, 705, 69 L. Ed. 2d 340, 351, 101 S. Ct.
2587, 2596 (1981). Illinois courts A >adhere to the rule requiring a
defendant to establish the manner in which his constitutional rights
have been violated before permitting him to challenge the validity of
the search and seizure.= @ People v. Keller, 93 Ill. 2d 432, 439-40
(1982), quoting People v. McNeil, 53 Ill. 2d 187, 192 (1972). Because
defendants= status as Aoccupants@ within the meaning of the warrant
was superfluous, they lack standing on that basis to challenge the
constitutionality of the warrant=s authorization to search Aoccupants.@
Defendants also argue that the warrant was overly broad because
it allowed the search of all Amotor vehicles@ on the property absent a
particularized finding of probable cause. As with the warrant=s
authorization to search Aoccupants@ of the property, defendants lack
standing to contest the constitutionality of the warrant=s authorization
to search Amotor vehicles,@ because there is no indication in the
record that any motor vehicles were, in fact, searched. Keller, 93 Ill.
2d at 439-40, quoting McNeil, 53 Ill. 2d at 192.
Finally, defendants argue that the warrant was overly broad
because it permitted the search of all Aoutbuildings@ on the property
absent a particularized finding of probable cause. The record reveals
that a shed next to the trailer was searched, and that the search
disclosed a cylinder with a hose sticking out of it and an unspecified
amount of anhydrous ammonia. Despite the discovery of this
-34-
evidence, McCarty has no standing to contest the constitutionality of
the warrant=s command to search Aoutbuildings,@ because there is no
indication that any image of, or reference to, the items in the shed
was used as evidence against McCarty at his trial. Keller, 93 Ill. 2d at
439-40, quoting McNeil, 53 Ill. 2d at 192. Reynolds, on the other
hand, has standing to challenge the warrant=s command to search
Aoutbuildings,@ because the police report admitted into evidence at
her trial referred to the items discovered in the shed. We find,
however, that the informant=s complaint was sufficient to support a
finding of probable cause to search Aoutbuildings@ of the trailer. The
complaint alleged that McCarty admitted to manufacturing
methamphetamine on the described premises, and it is a commonly
known fact that the manufacture of methamphetamine requires the
use of dangerous chemicals. This fact supports the inference that such
chemicals likely would be stored somewhere other than the trailer.
Accordingly, the warrant=s authorization to search Aoutbuildings@ was
supported by probable cause.
CONCLUSION
In light of the foregoing, we hold that, for purposes of section
401(a)(6.5)(D) of the Controlled Substances Act (720 ILCS
570/401(a)(6.5)(D) (West 2000)), Asubstance containing
methamphetamine@ includes the byproduct produced during the
manufacture of methamphetamine. We further hold that section
401(a)(6.5)(D) does not violate the proportionate penalties clause (Ill.
Const. 1970, art. I, '11) or the due process clause (Ill. Const. 1970,
art. I, '2) of the Illinois Constitution. Finally, we hold that the search
warrant at issue in this case did not violate the warrant clause of the
Illinois Constitution (Ill. Const. 1970, art. I, '6) or the warrant clause
of the United States Constitution (U.S. Const., amend. IV).
Accordingly, we affirm the judgments of the appellate court.
Appellate court judgments affirmed.
JUSTICE BURKE took no part in the consideration or decision
of this case.
-35-
JUSTICE FREEMAN, concurring in part and dissenting in part:
I join fully in sections I and II of the court=s opinion and agree
that defendants= convictions must be upheld. I do not agree, however,
with section III of the opinion and dissent from that portion of the
opinion.
I part ways with my colleagues because I believe that the issue
regarding the constitutionality of the search warrant was not
adequately preserved by either defendant in this case and, as a result,
should be deemed procedurally defaulted. The issue was not raised in
either of the petitions for leave to appeal filed in this case. Failure to
include an issue in a petition for leave to appeal results in its
forfeiture. People v. Carter, 208 Ill. 2d 309, 318 (2003) (and cases
cited therein). I also note that neither defendant raised the matter in
his or her motion to suppress so the issue was not before the circuit
court either. Defendant McCarty also failed to raise the issue in a
posttrial motion. This court has long recognized that in order to
preserve an issue for appellate review, the matter must be objected to
at the time of trial and must also be included in the posttrial motion.
People v. Enoch, 122 Ill. 2d 176, 186 (1988).
The court acknowledges all of the above (slip op. at 22) and states
that the issue has been forfeited. The court, however, excuses the
forfeiture in light of two considerations plus the fact that Athe rule of
forfeiture is >an admonition to the parties and not a limitation on the
jurisdiction of this court.= @ Slip op. at 23, quoting People v.
Normand, 215 Ill. 2d 539, 544 (2005). I disagree with this analysis.
The first consideration cited by the court is the fact that Athe
appellate court reviewed McCarty=s and Reynolds= challenges to the
constitutionality of the warrant on the merits.@ Slip op. at 22. I fail to
see how this is dispositive particularly when it is clear that the
appellate court reached the issues by sidestepping the procedural-
default argument raised by the State. Indeed, in defendant Reynolds=
appeal, the appellate court did not even address the fact that the issue
was defaulted. In the McCarty appeal, the appellate court noted the
default, but addressed the matter on the sole basis that the Awaiver
rule is a limitation on the parties and not on the reviewing court.@
McCarty, 356 Ill. App. 3d at 560. The appellate court also stated that
-36-
it would Arelax the rule@ in the Ainterests of justice@ and address the
merits. McCarty, 356 Ill. App. 3d at 560. I note that the principle that
Awaiver is a limitation on the parties and not the court@ has its origins
in the notion that courts will override concerns of waiver in some
cases if necessary to reach a just result or maintain a uniform body of
precedent. See Hux v. Raben, 38 Ill. 2d 223, 225 (1967) (noting
limited exceptions for addressing points not raised properly). Thus,
the proposition is one that is dependent on a very limited number of
circumstances being present in a given case. Here, the appellate court
did not identify why the need to invoke this very limited exception
existed in this case. Indeed, it would have been hard-pressed to do so,
given that the case law in this area is both sound and uniform. As far
as the interests of justice are concerned, it seems unlikely that those
interests were much at risk given the appellate court=s ultimate
conclusion that no error occurred. For this reason, nothing about the
appellate court=s treatment of the issue gives this court any reason to
address the issue on the merits. Thus, in contrast to my colleagues, I
do not believe that the appellate court=s decision to ignore the
procedural default in this case limits this court from applying the
doctrine.
The second consideration cited by the court is the fact that this
court Agranted McCarty and Reynolds leave to file supplemental
briefs addressing the constitutionality of the warrant.@ Slip op. at 22-
23. This is a reference to developments which arose when defendant
McCarty sought leave to file a supplemental pro se brief in this case
on February 9, 2006. 3 In the motion, McCarty alleged that his
attorney had filed a petition for leave to appeal on one issue and that
he [McCarty] Awas allowed to file a Supplemental Petition for Leave
to Appeal on a separate issue.@ McCarty claimed that the brief filed
by his counsel did not include the issue raised in his supplemental
3
McCarty=s action in this court commenced on April 25, 2005, when his
counsel filed a petition for leave to appeal on McCarty=s behalf. His case
was subsequently consolidated with that of defendant Reynolds upon this
court=s acceptance of both petitions on September 29, 2005. Thereafter,
defendants= brief was filed on November 1, 2005, and the State=s brief was
filed on February 2, 2005.
-37-
petition. He therefore requested leave from this court to file a pro se
supplemental brief as to that issue. Neither the motion nor the
supplemental brief was ever served on the State, which became aware
of the development only upon receipt of this court=s order, entered by
a single justice, allowing McCarty=s pro se request. 4 Although this
court, again by order of a single justice, subsequently denied its
emergency motion for reconsideration, the State was given an
opportunity to respond to McCarty=s pro se supplemental brief. In its
response, the State maintained that the issue was procedurally
defaulted because it had not been properly preserved. The State also
maintained that McCarty did not argue that the plain error rule
excused the default nor could the rule be satisfied. 5
Having now had a full opportunity to review both McCarty=s
motion and the full briefing of this matter in light of the complete
record in this case, I believe the order which initially allowed
McCarty leave to file a pro se supplemental brief was entered under a
misapprehension of the facts. Contrary to McCarty=s allegations in his
motion for leave to file the supplemental brief, this court did not
allow him to file a pro se supplemental petition. The docket sheet in
this case indicates that no supplemental pro se petition was ever filed
4
On March 13, 2006, defendant Reynolds also sought leave to file a
supplemental brief with respect to the warrant issue. As was the case with
McCarty=s motion, leave was granted to Reynolds by order of a single
justice.
5
The State=s response with respect to the warrant issue was not filed in
this court until after oral argument had been conducted. In fact, full briefing
on the warrant issue was not completed until May 3, 2006, almost two
months after oral argument
-38-
in this court. This is not surprising since a defendant does not have
the right to both self-representation and the assistance of counsel.
People v. McDonald, 168 Ill. 2d 420, 435 (1995) (and cases cited
therein); People v. Woods, 292 Ill. App. 3d 172, 179 (1997). In light
of these facts, I do not believe any reason exists for this court to
consider this argument, particularly in light of the fact that the record
indicates that the issue was never properly preserved in the first place
by either McCarty or defendant Reynolds.
In my view, neither the fact that the appellate court addressed the
claim on the merits nor the fact that this court sought supplemental
briefing on the issue operates to excuse the procedural default that is
present in this case. The latter argument is particularly unpersuasive
since in the course of the full supplemental briefing that this court
allowed, the State raised a plain error argument to which neither
defendant has responded. I note that, in the past, this court has
refused to entertain arguments when a defendant fails to ask the court
to review the matter under the doctrine of plain error. See, e.g.,
People v. Williams, 204 Ill. 2d 191, 208 (2003); People v. Casillas,
195 Ill. 2d 461, 485 (2000); People v. Reed, 177 Ill. 2d 389, 395
(1997). I fail to see why the defendants in this case should be treated
differently solely on the basis that the court allowed additional
briefing on this issue. I therefore next address whether the court=s
decision to excuse the bar in this case is somehow warranted
Abecause the rule of forfeiture is >an admonition to the parties and not
a limitation on the jurisdiction of this court.= @ Slip op. at 23, quoting
People v. Normand, 215 Ill. 2d 539, 544 (2005).
As noted previously, the principle that waiver is a limitation on
the parties and not the court can be traced to this court=s decision in
Hux, in which this court stated courts of review may override
concerns of waiver in some cases if necessary to reach a just result or
maintain a uniform body of precedent. Hux, 38 Ill. 2d at 225. I do not
disagree with this basic premise. However, the principle does not, in
my view, give a court of review carte blanche to disregard a claim of
procedural default without some expressed justification that comports
with the rationale upon which Hux decided. In this case, neither the
need to maintain a uniform body of precedent nor the need to reach a
just result is strong enough to override the well-recognized concerns
-39-
that animate the doctrine of procedural default. As I noted previously,
the case law in this area is unremarkable, and the need to ensure a
just result is not at risk.
More importantly, however, I believe that the principle
announced in Hux should not be invoked arbitrarily especially given
the fact that well-defined exceptions to the waiver rule exist. Indeed,
this court has developed a plain error doctrine which allows a
reviewing court to reach a forfeited error in certain circumstances.
The doctrine, adopted formally as Supreme Court Rule 615, serves as
A >narrow and limited exception to the general *** rule [of procedural
default].= @ People v. Szabo, 113 Ill. 2d 83, 94 (1986), quoting People
v. Pastorino, 91 Ill. 2d 178, 188 (1982). Under this doctrine, a default
will be excused if the defendant can establish plain error, in that
either (i) the evidence was closely balanced such that the error was
prejudicial or (ii) the error was so serious that it affected the fairness
of the defendant=s trial and challenged the integrity of the judicial
process such that prejudice can be presumed. People v. Nitz, 219 Ill.
2d 400, 414-15 (2006). 6
6
I will leave to another day discussion of the interrelationship, if any,
between the principle rooted in Hux and this court=s plain error rule. For
example, why are some criminal defendants made to satisfy the plain error
-40-
rule in order to have a default excused (see, e.g., People v. Allen, No. 99977
(June 2, 2006) (holding defaulted the defendant=s due process challenge to
the circuit court=s erroneous decision to restrain him, during trial, in an
electronic stun belt due to defendant=s failure to satisfy either prong of the
plain error rule)) while other criminal defendants, such as those today, have
their procedural defaults excused for no given reason? Although numerous
decisions of this court invoke the Hux principle in criminal cases, a close
reading of Hux suggests that such reliance may be erroneous, as the opinion
seems to indicate that the principle applies only in civil cases. See Hux, 38
Ill. 2d at 224 (noting distinction between the principle and the Asimilar
thought *** expressed in the provision of Rule 615 with respect to the
review of criminal cases@ (emphasis added)). If that is so, then the only
vehicle by which this court could excuse the procedural bar in this case
would be the plain error rule.
-41-
The foregoing leads me to believe that the court=s inconsistent
application of the doctrine of procedural default will continue to
produce opinions which cannot be harmonized with each other. The
indiscriminate application of the principle enunciated in Hux will
serve only to prompt defendants to raise even more procedurally
defaulted claims on appeal. The State, relying on our precedent that
an issue must be properly preserved by a contemporaneous objection
as well as in the posttrial motion, will be left to wonder if procedural
default and plain error are still viable arguments to make in this court
given the wholly inconsistent manner in which they are applied. This
is not an unrealistic prediction because, to put it frankly, it is difficult
to try to moor this court=s application of the doctrine of procedural
default to any objective criteria. Rather, opinions such as today=s
serve only to give the appearance that the court does whatever it
wants to do in any given case, whether it be excusing forfeitures on
the basis of Hux in one case while strictly applying the plain error
rule in another.
That said, I would invoke the principle that Awaiver is a limitation
on the parties and not on the court@ only in the limited instances
explicitly contemplated in Hux. In contrast to my colleagues, I do not
believe that principle has any application to this case. Instead, I
would hold that the issue has been procedurally defaulted and that no
reason exists to excuse the procedural default. See People v. Keene,
169 Ill. 2d 1 (1995) (setting forth bases for excusal of procedural
default); People v. Enoch, 122 Ill. 2d 176 (1988) (same).
JUSTICE KILBRIDE joins in this partial concurrence and partial
dissent.
-42-