U.S. Residential Management and Development, LLC v. Head , 337 Ill. Dec. 143 ( 2009 )


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  •                                                                                 FIFTH DIVISION
    DECEMBER 18, 2009
    No. 1-08-3531
    U.S. RESIDENTIAL MANAGEMENT                           )       Appeal from the
    AND DEVELOPMENT, LLC, as Property                     )       Circuit Court of
    Manager for the Chicago Housing Authority,            )       Cook County.
    )
    Plaintiff-Appellant,                  )
    )
    v.                                             )       No. 07 M1 225378
    )
    MICHAEL HEAD,                                         )
    )
    Defendant-Appellee.                   )       Honorable
    )       Sheldon Garber,
    )       Judge Presiding.
    JUSTICE TULLY delivered the opinion of the court:
    Plaintiff U.S. Residential Management & Development, LLC, appeals from an order
    granting defendant Michael Head’s combined motion to suppress and motion to dismiss in a
    forcible entry and detainer action. On appeal, plaintiff asserts that the circuit court improperly
    granted defendant’s motion to suppress the evidence of defendant’s drug-related criminal
    conduct and motion to dismiss on the basis that the exclusionary rule should not apply to
    plaintiff’s possessory action. For the reasons that follow, we reverse the judgment of the circuit
    court and remand for further proceedings.
    Background
    On October 15, 2006, defendant was arrested in his rental residence at the Lathrop Homes
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    public housing development for possessing cannabis in violation of section 550/4(d) of the
    Cannabis Control Act. 720 ILCS 550/4(d) (West 2006). Plaintiff managed the premises on
    behalf of the Chicago Housing Authority (CHA). Defendant’s lease with plaintiff required him
    to refrain from engaging in any drug-related criminal activity on or off CHA premises and to
    keep persons under his control from engaging in any criminal activity. The lease would be
    terminated if there was any drug-related criminal activity on or off the premises by the resident,
    any family member of the household, or a guest.
    CHA and the Chicago police department (CPD) were parties to an intergovernmental
    agreement. Pursuant to the agreement, CPD provided supplemental police services for CHA
    properties, including: dedicated watches, increased foot patrols, customized policing strategies,
    and the monitoring and prevention of gang and other illegal activities. In addition, CPD provided
    statistics and relevant data, including reports of the activities of the assigned officers to CHA.
    CPD and CHA also shared information through established procedures about public
    housing residents who were arrested for committing drug-related crimes. Generally, CPD
    provided case reports to CHA regarding arrests on CHA properties. CHA would then complete a
    notice of arrest and send it to the property manager, in this case plaintiff. Plaintiff could then
    serve the tenant with written notice of CHA’s decision to terminate the lease agreement. In
    exchange for these services, CHA paid CPD up to $6 million per year.
    On March 9, 2007, the State dropped the criminal charges against defendant. On August
    14, 2007, CHA sent plaintiff notice of defendant’s arrest. Ten days later, on August 24, 2007,
    plaintiff sent defendant notice of its decision to terminate the lease agreement. On September 7,
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    2007, plaintiff filed its complaint against defendant for possession of the premises pursuant to
    section 9–118 of the Forcible Entry and Detainer Act (735 ILCS 5/9–118 (West 2006)) (the Act).
    On June 25, 2008, defendant filed his combined motion to suppress the evidence of his drug-
    related criminal conduct under the exclusionary rule and motion to dismiss.
    On December 8, 2008, the circuit court held that the evidence of defendant’s crime was
    seized by the arresting officers in violation of the fourth amendment’s prohibition against
    unreasonable searches and seizures. Plaintiff does not dispute this finding on appeal. In support
    of its holding, the circuit court reasoned that the arresting officers conducted their search without
    a warrant, lacked probable cause to search the premises because they were relying on information
    provided by an informant whom they had never before seen and whose gender they could not
    even remember, and that even if the officers had probable cause (which they did not), no exigent
    circumstances justified the warrantless search.
    Next, the circuit court found that the exclusionary rule barred the admission of the
    illegally seized evidence. The circuit court held that the proceeding was quasi-criminal because
    defendant was facing eviction for unlawful drug-related activity, plaintiff filed suit under section
    9–118 of the Act (a statutory provision that applies only to criminal activity), and the proposed
    sanction was harsh. Moreover, the circuit court reasoned that even if the forcible entry and
    detainer action was a purely civil proceeding, the exclusionary rule may be extended to such
    proceedings when its application would deter the police from committing future violations of the
    fourth amendment. The circuit court reasoned that CPD and CHA followed an established
    procedure for sharing information about public housing residents who were arrested for drug-
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    related crimes, and that the two agencies were parties to a formal written contract that required
    CPD to provide CHA with supplemental policing services designed to combat the very activity
    for which defendant was arrested. The circuit court found that given the relationship between
    CPD and CHA, suppressing the illegally seized evidence in this case would deter the police from
    committing future fourth amendment violations. As such, the circuit court granted defendant’s
    motion to suppress and dismissed the action with prejudice because plaintiff could not establish
    defendant violated his lease agreement without the illegally seized evidence. This appeal was
    timely filed.
    On appeal, plaintiff contends that the circuit court improperly granted defendant’s motion
    to suppress evidence, arguing that the exclusionary rule does not apply to plaintiff’s forcible
    entry and detainer action. Plaintiff asserts that because this action is a purely civil proceeding,
    and not a criminal or quasi-criminal proceeding, the circuit court improperly applied the
    exclusionary rule. Plaintiff also asserts that the societal costs of excluding evidence of
    defendant’s drug-related criminal conduct in this action greatly outweigh any minimal deterrent
    benefit upon the police.
    Analysis
    In reviewing an appeal from a circuit court's ruling on a motion to suppress, we apply a
    two-part standard of review. People v. Salinas, 
    383 Ill. App. 3d 481
    , 490 (2008). First, the
    circuit court's factual findings are reviewed for clear error and will only be reversed if they are
    against the manifest weight of the evidence. Salinas, 383 Ill. App. 3d at 490. Second, the circuit
    court's ultimate decision as to whether suppression is warranted is reviewed de novo. Salinas,
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    383 Ill. App. 3d at 490. In this case, neither party challenges any of the circuit court's factual
    determinations. Accordingly, the sole issue before this court is plaintiff’s legal challenge to the
    circuit court’s application of the exclusionary rule, which we review de novo.
    The first issue on appeal is whether actions brought pursuant to the Forcible Entry and
    Detainer Act constitute quasi-criminal proceedings. The Act “sets forth a mechanism for the
    peaceful adjudication of possession rights in the trial court.” Circle Management, LLC v.
    Olivier, 
    378 Ill. App. 3d 601
    , 608 (2007). “ ‘The distinct purpose of the forcible entry and
    detainer proceeding is to determine only who should be in rightful possession.’ ” Circle
    Management, LLC, 378 Ill. App. 3d at 609, quoting Miller v. Daley, 
    131 Ill. App. 3d 959
    , 961
    (1985). In other words, “[a] forcible entry and detainer action is a limited proceeding, focusing
    on the central issue of possession.” American National Bank v. Powell, 
    293 Ill. App. 3d 1033
    ,
    1044 (1997). “The only questions that are to be answered in such a proceeding concern which
    party is entitled to immediate possession and whether a defense that is germane to the distinctive
    purpose of the action defeats plaintiff's asserted right to possession.” Subway Restaurants, Inc. v.
    Riggs, 
    297 Ill. App. 3d 284
    , 287 (1998). Our supreme court recognized that a forcible entry and
    detainer action “is a civil proceeding to obtain restitution of premises of which the plaintiff is
    unjustly deprived.” West Side Trust & Savings Bank v. Lopoten, 
    358 Ill. 631
    , 637 (1934).
    Under section 9–118 of the Act, the housing authority may initiate emergency housing
    eviction proceedings against a tenant for possession of the premises if “there is direct evidence
    of *** unlawful[ly] possessing *** cannabis *** within or upon the premises by or with the
    knowledge and consent of, or in concert with the person or persons named in the complaint.”
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    735 ILCS 5/9–118(b)(2)(A) (West 2006). Plaintiff’s complaint did not request a penalty, a
    forfeiture of defendant’s personalty, or a fine from defendant, but instead only sought to invoke
    its right under the Act to regain possession of the premises. As such, because the Act’s purpose
    is to settle disputes about possession of real property – and not to punish defendant – we hold
    that forcible entry and detainer actions are not quasi-criminal in nature.
    In finding that plaintiff’s action was quasi-criminal, the circuit court reasoned that
    defendant was facing eviction for unlawful drug-related activity, noting that the statute only
    applied to criminal activity, and that the proposed sanction was harsh. While the circuit court did
    not indicate its basis for finding this action to be quasi-criminal, defendant suggests that One
    1958 Plymouth Sedan v. Pennsylvania, 
    380 U.S. 693
    , 
    14 L. Ed. 2d 170
    , 
    85 S. Ct. 1246
     (1965),
    supports the trial court’s finding. In One 1958 Plymouth Sedan, the Court reasoned that the
    forfeiture action was quasi-criminal because its object was “to penalize [the defendant] for the
    commission of an offense against the law”and because the threatened penalty was harsh. One
    1958 Plymouth Sedan v. Pennsylvania, 
    380 U.S. 693
    , 700-01, 
    14 L. Ed. 2d 170
    , 175, 
    85 S. Ct. 1246
    , 1251 (1965).
    The present case is distinguishable from One 1958 Plymouth Sedan. Here, the focus of
    the Act is not to punish defendant, but rather to set forth a mechanism for the peaceful
    adjudication of possession rights in the circuit court. In addition, while defendant may be
    subjected to a harsh consequence – losing his residence – this consequence does not transform
    this civil proceeding into a quasi-criminal proceeding. When the Supreme Court denied
    extending the exclusionary rule in Immigration and Naturalization Service v. Lopez-Mendoza,
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    468 U.S. 1032
    , 
    82 L. Ed. 2d 778
    , 
    104 S. Ct. 3479
     (1984), and in Pennsylvania Board of
    Probation & Parole v. Scott, 
    524 U.S. 357
    , 
    141 L. Ed. 2d 344
    , 
    118 S. Ct. 2014
     (1998), the
    possible sanctions were deportation and incarceration, respectively. These sanctions, while
    harsh, did not transform the civil proceedings into quasi-criminal proceedings. These sanctions
    are also equally, if not more, harsh than losing one’s residence.
    For the foregoing reasons, we reverse the circuit court’s finding that this proceeding is
    quasi-criminal and find that actions brought pursuant to the Act are civil in nature.
    The next issue is whether the exclusionary rule applies to suppress illegally seized
    evidence in a civil forcible entry and detainer action. Under the exclusionary rule, “evidence
    obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against
    the victim of the illegal search and seizure.” United States v. Calandra, 
    414 U.S. 338
    , 347, 
    38 L. Ed. 2d 561
    , 571, 
    94 S. Ct. 613
    , 619 (1974). “[T]he rule is a judicially created remedy designed
    to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a
    personal constitutional right of the party aggrieved.” Calandra, 414 U.S at 348, 
    38 L. Ed. 2d at 571
    , 
    94 S. Ct. at 620
    . The Supreme Court has explained that “[d]espite its broad deterrent
    purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized
    evidence in all proceedings or against all persons.” Calandra, 414 U.S at 348, 
    38 L. Ed. 2d at 571
    , 
    94 S. Ct. at 620
    . Instead, application of the exclusionary rule has been restricted to those
    areas where the remedial objectives of deterring unlawful police conduct are “most efficaciously
    served.” Calandra, 414 U.S at 348, 
    38 L. Ed. 2d at 571
    , 
    94 S. Ct. at 620
    .
    Accordingly, the Supreme Court developed a balancing test to measure the appropriate
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    use of the exclusionary rule. McCullough v. Knight, 
    293 Ill. App. 3d 591
    , 596 (1997). Under
    this test, we must balance the likely benefits of excluding unlawfully seized evidence against the
    likely costs. Lopez-Mendoza, 
    468 U.S. at 1041
    , 
    82 L. Ed. 2d at 787
    , 
    104 S. Ct. at 3484
    . On the
    benefit side of the analysis is the deterrence of possible future unlawful police conduct. Lopez-
    Mendoza, 
    468 U.S. at 1041
    , 
    82 L. Ed. 2d at 787
    , 
    104 S. Ct. at 3484
    . “On the cost side there is
    the loss of often probative evidence and all of the secondary costs that flow from the less
    accurate or more cumbersome adjudication that therefore occurs.” Lopez-Mendoza, 
    468 U.S. at 1041
    , 
    82 L. Ed. 2d at 787
    , 
    104 S. Ct. at 3485
    .
    Our research has not disclosed any Supreme Court or Illinois cases which have
    considered the application of the exclusionary rule in forcible entry and detainer actions. When
    the Supreme Court has applied the exclusionary rule balancing test, it has refused to extend the
    rule to various civil proceedings. In Calandra, 414 U.S 338, 
    38 L. Ed. 2d 561
    , 
    94 S. Ct. 613
    , the
    Court forbade a witness from invoking the exclusionary rule in a grand jury proceeding. In
    United States v. Janis, 
    428 U.S. 433
    , 
    49 L. Ed. 2d 1046
    , 
    96 S. Ct. 3021
     (1976), the Court refused
    to apply the exclusionary rule to suppress evidence seized by the criminal law enforcement
    officers of one sovereign (state police) in a civil proceeding of another sovereign (federal tax
    assessment proceeding). In Lopez-Mendoza, 
    468 U.S. 1032
    , 
    82 L. Ed. 2d 778
    , 
    104 S. Ct. 3479
    ,
    the Court refused to extend the exclusionary rule to civil deportation hearings. In Pennsylvania
    Board of Probation, 
    524 U.S. 357
    , 
    141 L. Ed. 2d 344
    , 
    118 S. Ct. 2014
    , the Court held that the
    exclusionary rule did not apply in parole revocation hearings.
    Illinois courts have applied the exclusionary rule balancing test and have similarly refused
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    to extend the rule in various civil proceedings. For example, in People v. Dowery, 
    62 Ill. 2d 200
    (1975), the court refused to extend the exclusionary rule to probation revocation proceedings. In
    Grames v. Illinois State Police, 
    254 Ill. App. 3d 191
     (1993), the exclusionary rule did not extend
    to police department administrative discharge proceedings. In Fedanzo v. City of Chicago, 
    333 Ill. App. 3d 339
     (2002), the court held the exclusionary rule did not apply in employee
    termination proceedings. In McCullough, 
    293 Ill. App. 3d 591
    , the court refused to suppress
    evidence of an illegally seized handgun at the plaintiff’s vehicle impoundment proceeding before
    the department of revenue. The McCullough court examined the costs of applying the
    exclusionary rule to a vehicle impoundment proceeding and determined that “the department of
    revenue would be unable to consider valuable and relevant evidence that would impede the truth-
    finding function of the hearing officer,” thus interfering with the public policy of the
    administrative proceeding: eliminating “unlawful weapons from the streets of the city.”
    McCullough, 293 Ill. App. 3d at 597-98. Relying upon Janis, the McCullough court held that
    “police officers were sufficiently ‘punished’ by exclusion of evidence in criminal prosecutions
    because the exclusion frustrates the criminal enforcement process, which was the duty and
    concern of police officers to ensure.” McCullough, 293 Ill. App. 3d at 597-98, citing Janis, 
    428 U.S. at 448
    , 
    49 L. Ed. 2d at 1057
    , 
    96 S. Ct. at 3029
    .
    Balancing the factors in the present case, we conclude that the exclusionary rule should
    not be extended to encompass the present situation. The cost to CHA and the truth-finding
    process outweigh the benefit which would result from the application of the exclusionary rule in
    forcible entry and detainer actions. By applying the exclusionary rule in the present case, CHA
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    would be unable to consider valuable and relevant evidence of potential criminal activity that
    would impede the truth-finding function of the circuit court. To extend the rule and suppress
    evidence of criminal activity would hinder CHA’s ability to enforce lease agreements designed to
    promote safety and deter illegal conduct in public housing communities. This rationale is
    consistent with the concerns of the Illinois General Assembly in implementing the Act, which
    was to protect persons at public housing premises from “imminent danger and peril to [their]
    lives, safety, health and mental and physical well being.” Pub. Act 87–0933, eff. August 27,
    1992 (adding 735 ILCS 5/9–118). The circuit court failed to incorporate this half of the analysis
    under the exclusionary rule balancing test.
    While the circuit court focused on the deterrent value of suppressing the illegally seized
    evidence, the costs of excluding relevant and probative evidence outweigh any additional
    marginal deterrence provided by extending the exclusionary rule. Here, as in McCullough, police
    officers are sufficiently punished by the exclusion of evidence in criminal prosecutions. While
    CPD and CHA are parties to an agreement that requires CPD to provide CHA with policing
    services, the record does not indicate CPD is, or has been, improperly motivated to illegally seize
    evidence to benefit civil proceedings. Defendant suggests that if illegally seized evidence may be
    introduced in eviction proceedings, “nothing will discourage the police from conducting
    unlawful searches.” We are not persuaded by this type of speculative argument. In the event that
    such improper behavior or police harassment is shown, “the judiciary may impose appropriate
    sanctions to deter misconduct.” Dowery, 
    62 Ill. 2d at 207
    .
    Defendant cites cases from other jurisdictions for the proposition that the evidence should
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    be excluded: Tejada v. Christian, 
    71 A.D.2d 527
    , 
    422 N.Y.S.2d 957
     (1979), Boston Housing
    Authority v. Guirola, 
    410 Mass. 820
    , 
    575 N.E.2d 1100
     (1991), Youssef v. United Management
    Co., 
    683 A.2d 152
     (D.C. App. 1996), Housing Authority v. Dawkins, 
    239 Conn. 793
    , 
    686 A.2d 994
     (1997), and Tirado v. Commissioner of Internal Revenue, 
    689 F.2d 307
     (2d Cir. 1982), cert.
    denied, 
    460 U.S. 1014
    , 
    75 L. Ed. 2d 484
    , 
    103 S. Ct. 1256
     (1983). Initially, we note that the
    findings of the courts of other jurisdictions are not binding here. People v. Sullivan, 
    366 Ill. App. 3d 770
    , 781 (2006). Additionally, we do not find it necessary to turn to another state for
    guidance on the issue. Nonetheless, we note that of the five cases cited by defendant from other
    jurisdictions, only one of the courts found in favor of applying the exclusionary rule, Tejada, 
    71 A.D.2d 527
    , 
    422 N.Y.S.2d 957
    . However, the Tejada court did not apply the exclusionary rule
    balancing test, and instead, after only a brief discussion of the deterrent effect of excluding the
    evidence, determined that it “ would necessarily be obliged” and “required” to suppress the
    illegally obtained evidence. Tejada, 
    71 A.D.2d at 530
    , 422 N.Y.S.2d at 959-60. This type of
    blanket assertion contradicts the long standing philosophy that the “exclusionary rule has never
    been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all
    persons.” Calandra, 414 U.S at 348, 
    38 L. Ed. 2d at 571
    , 
    94 S. Ct. at 620
    .
    Lastly, we are not persuaded that article I, section 6, of the Illinois Constitution of 1970
    requires an independent analysis pertaining to the applicability of the exclusionary rule in
    forcible entry and detainer actions. While we are free to prescribe a broader remedy under article
    I, section 6, than would be required under the fourth amendment (People v. Caballes, 
    221 Ill.2d 282
    , 305-06 (2006)), we see no reason to do so in the present case. As explained above, Illinois
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    courts considering the applicability of the exclusionary rule in civil proceedings have routinely
    applied the balancing test set out by the Supreme Court. We see no reason to stray from this
    practice of balancing the likely benefits of excluding unlawfully seized evidence against the
    likely costs under either the federal or state constitution.
    For the foregoing reasons, we reverse the circuit court’s dismissal of plaintiff’s forcible
    entry and detainer action and remand the cause for further proceedings.
    Reversed and remanded.
    TOOMIN, P.J., and HOWSE, J. Concur.
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    REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
    U.S. RESIDENTIAL MANAGEMENT &
    DEVELOPMENT, LLC as Property Manager for
    CHICAGO HOUSING AUTHORITY ,
    Plaintiff-Appellant,
    v.
    MICHAEL HEAD,
    Defendant-Appellee.
    No. 1-08-3531
    Appellate Court of Illinois
    First District, Fifth Division
    JUSTICE TULLY delivered the opinion of the court:
    TOOMIN, P.J., and, HOWSE, J., concur.
    Appeal from the Circuit Court of Cook County
    HONORABLE SHELDON GARBER
    Richard W. Christoff of Sanford Kahn, LTD., 180 North LaSalle Street, Suite 2025, of
    Chicago, Illinois, for Plaintiff-Appellant.
    Lawrence D. Wood, Miriam Hallbauer, Carolyn Norton of Legal Assistance Foundation
    of Metropolitan Chicago, 1279 N. Milwaukee Avenue, Suite 407, of Chicago, Illinois for
    Defendant-Appellee.
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