People v. Galan

Docket No. 103845.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JESSE
GALAN, Appellee.
Opinion filed July 24, 2008.
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 Burke specially concurred, with opinion.
Justices Freeman dissented, with opinion, joined by Justice
Kilbride.
OPINION
In November 2001, defendant, Jesse Galan, was indicted for
possession with intent to deliver 900 or more grams of cocaine and
more than 5000 grams of cannabis. The evidence against him was
suppressed by the circuit court of Cook County and the State filed a
“Certificate of Substantial Impairment” and brought an interlocutory
appeal pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d R.
604(a)(1)). The appellate court affirmed. 367 Ill. App. 3d 876. After
its petition for rehearing was denied, the State filed and was granted
leave to appeal to this court pursuant to Supreme Court Rule 315
(210 Ill. 2d R. 315).
There are two issues in this case: first, whether Illinois courts must
inquire into extradition irregularities for crimes committed within
Illinois’ borders; and, second, whether exclusion is the appropriate
remedy when Illinois police violate a postarrest provision of another
state’s fresh pursuit statute. We reverse.
BACKGROUND
On October 11, 2001, defendant drove his truck onto the Chicago
Skyway, entering the Skyway from an Illinois on-ramp. After
continuing onto a tollbooth 0.8 miles into Indiana, defendant was
stopped by several Chicago police officers. Defendant’s vehicle was
searched, and police recovered two boxes filled with marijuana.
Defendant was arrested and taken to his mother’s house at 8521
South Burley Avenue in Chicago, where he sometimes resided. Police
conducted a search of the house in the presence of defendant and his
mother and stepfather, eventually recovering two pistols,
approximately $10,000 in cash, and cocaine. A probable cause hearing
was held and defendant was eventually indicted by a Cook County
grand jury, as indicated above.
Prior to trial, defendant filed a motion to quash arrest and suppress
evidence. The motion was filed on July 23, 2002, and requested the
trial court to “[q]uash [defendant’s] arrest, because of the absence of
authority of probable cause to effect it, and to suppress from
introduction into evidence in this cause, the following: (a) Physical
evidence discovered and as a result of arrest and detention; (b)
Statements, utterances, reports of gestures and responses by petitioner
during the detention following the arrest[ ] i.e. oral statements of
defendant[;] (c) All other knowledge and fruits thereof, witnesses
statements, whether written, or oral or gestural and products of the
arrest.” Defendant asserted that during his arrest and subsequent
detention, the State “became aware of the existence of physical
evidence all the direct and indirect fruits of the arrest and detention,
which connect petitioner with the instant offense.” The trial court
conducted an evidentiary hearing on September 17, 2003.
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Defendant testified that he was driving his truck toward Indiana
when he was stopped at the tollbooth, past the “mile 1” marker
located in Indiana. He stated that several men dressed in plain clothes,
who it soon became apparent were Chicago police officers,
approached him at the tollbooth with guns drawn and ordered him out
of his truck, placed him in handcuffs, and forced him onto the ground.
Defendant testified that he did not give the men permission to search
his truck. Defendant acknowledged that when the truck was searched,
police recovered two boxes of marijuana and told him he was under
arrest.
Defendant testified that the police then took him back to his
mother’s house in Illinois. He stated that he occasionally resided at his
mother’s house and had come from that address when he was stopped
at the tollbooth. Defendant testified that officers knocked on the door
of his mother’s house and asked him if they could search the house.
Defendant testified that he told the officers they could not search the
house. He also testified, though, that his mother eventually opened the
door and, upon learning that the police had “busted [defendant] with
some marijuana,” agreed, after being asked, to allow the officers to
search the home. Defendant maintained that while he later signed a
consent to search, he only did so after officers threatened to arrest his
mother and stepfather. Defendant acknowledged that in searching the
house, police found other contraband. He asserted, however, that this
contraband was found before he signed the consent to search.
On cross-examination, defendant testified that after he was
removed from his truck by the police, the officers moved him away
from traffic and told him he was under arrest. Defendant stated that
at this point officers began searching his truck and found the two
boxes containing marijuana in the truck’s backseat. Defendant testified
that the officers eventually informed him that he was in trouble and
they were planning to take him back to the house he had come from,
which he understood to be his mother’s house. Following this
testimony, defendant answered several more questions regarding the
circumstances surrounding the search of his mother’s home.
The State called Officer Brian Luce, one of the Chicago police
officers involved in arresting defendant. Luce testified that he was part
of the Chicago police department’s narcotics and gangs investigation
section. Luce stated that after obtaining information from a
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confidential informant, police became interested in defendant. This
informant indicated that defendant lived at 8521 South Burley Avenue
and 9735 Avenue M in Chicago. Moreover, the informant stated that
defendant was storing, selling, and manufacturing large quantities of
marijuana. Based on this information, the Chicago police department
began an investigation, in which Luce took part.
Luce testified that on October 11, 2001, he was conducting
surveillance on the Avenue M address as part of the ongoing
investigation. Luce indicated that other officers were conducting
surveillance on the Burley Avenue address. Luce observed defendant
and another individual, Jose Mojica, leave the Avenue M address and
drive to the Burley Avenue address in defendant’s truck. Luce saw
defendant and Mojica get out of the truck and enter the house at 8521
South Burley. At this point, Luce picked a surveillance spot around
the block while another officer set up surveillance on the front door.
Luce then received a radio communication from the other officer that
defendant and Mojica, who was carrying a white bag, left the house,
got back in the truck, and headed back to the Avenue M address.
Luce followed the men back to the Avenue M address and
observed Mojica, still carrying the white bag, exit the truck and get
into a Nissan Maxima by himself. At this point, part of the surveillance
team, including Luce, followed the Nissan, while another part of the
surveillance team remained at the Avenue M address. Eventually, a
marked police car pulled Mojica over and Luce was informed by radio
that Mojica did not have a valid driver’s license and was going to be
taken to a police station for a traffic violator bond. Luce further
testified that the beige Maxima was taken to the police station, where
a custodial search was performed and the white bag, the same bag that
was observed going into the car, was found to contain a large amount
of currency.
After being informed that Mojica was in custody and a large
amount of currency was found, Luce was told to go back to Avenue
M and continue surveillance. Luce observed defendant again leave the
Avenue M address and return to the Burley Avenue address. Luce
testified that another officer saw defendant enter the house and then
exit, carrying a brown box. Luce testified that the other officer told
him that while taking the box to his truck, defendant was looking up
and down the street. Defendant then repeated this action, entering the
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house, leaving with a second brown box, and taking it to his truck,
nervously looking up and down the street.
Luce stated that after defendant entered the truck he pulled away,
only to stop approximately 50 to 100 feet from the Burley Avenue
address and look up and down the street, watching the cars as they
passed. Luce, who was then following defendant, had to drive by in
his unmarked vehicle. In driving by, Luce observed defendant looking
out his driver’s side window in several different directions. Luce
testified that based upon his experience as a Chicago police officer,
defendant’s actions constituted countersurveillance or tactics used to
see if police are in the area.
After driving by defendant, Luce drove around the block and was
informed over the radio that defendant made an illegal U-turn,
crossing two lanes. Luce was eventually able to reposition himself
behind defendant’s truck. Luce testified that officers continued
“moving surveillance” and observed defendant travel from Burley
Avenue to Indianapolis Boulevard and then onto 106th Street, where
he veered from the far left to the far right lane, without signaling,
across three or four lanes of traffic, traveling to the Skyway on-ramp.
Luce stated that defendant’s “erratic move from the left [lane] all the
way to the right [lane]” led police to believe that their surveillance was
compromised. Again, Luce and other officers believed that
defendant’s conduct indicated that he was either trying to get away or
utilizing countersurveillance tactics to see if he was being followed. At
that point, Luce and the other officers agreed to stop defendant’s
vehicle to investigate.
Luce testified that officers stopped defendant’s truck “right at the
tollbooth” and quickly ran up to the car with guns drawn. Once it was
safe, the officers holstered their guns. Luce stated that when he
approached the vehicle and opened the passenger door, he smelled a
strong odor of cannabis. Luce testified that he had smelled this odor
before while carrying out his duties as a Chicago police officer and it
was not easily confused with any other smell. Luce testified that
officers asked defendant what was in the boxes and he answered that
it was “weed,” a street term for cannabis, and asked if he was in
trouble. Moreover, defendant stated that he believed there was 20
pounds of cannabis in the boxes. Luce stated that officers then took
defendant out of the truck, pulled it to the side of the highway, and
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began talking to defendant. During that conversation, officers told
defendant what they had seen that day, informed him that he was
under arrest, and advised him of his rights.
After reading defendant his rights, Luce continued speaking with
defendant, informing him of the ongoing investigation, noting that
they had found the cannabis and indicating that they wished to search
defendant’s home. Officers then brought defendant back to the Burley
Avenue address and, Luce testified, defendant agreed to sign a
consent-to-search form. Luce testified that he did not physically
threaten defendant or act abusive toward him and defendant simply
signed the form in the presence of another officer. Luce further
testified that he signed the consent-to-search form. Moreover, he
stated that the form was signed before the house was searched. Luce
testified that defendant was cooperative, appeared to be nervous, and
wanted to work with police.
Luce testified that officers then conducted a search of the
residence, in the presence of defendant’s mother and stepfather. As
already noted, they recovered two pistols, approximately $10,000 in
cash, and cocaine. Additionally, Luce testified that police found an
envelope addressed to defendant at 8521 South Burley Avenue.
Moreover, Luce stated that he did not make any threats to defendant
regarding his parents, nor did he threaten defendant’s parents with
arrest in order to gain more cooperation from defendant.
Before the State finished its questioning, Luce testified to one last
matter regarding Mojica. Luce testified that he was informed by other
officers that when Mojica was stopped and police found him in
possession of around $80,000, Mojica lied regarding its origins.
Mojica stated that the money was brought to him at a location that
officers, based upon their surveillance, knew not to be true. Luce
testified, as he had previously, that officers observed Mojica retrieve
a white bag from the Burley Avenue address, take that bag to the
Avenue M address, exit defendant’s truck with the bag, and then get
into the Nissan Maxima with the bag. Surveillance never lost sight of
the vehicle or Mojica, and when Mojica was stopped, the bag
containing the currency was recovered.
On cross-examination, Luce acknowledged that the informant
police relied upon in this case was unknown to him. Additionally,
Luce did not know and his report did not indicate that the informant
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ever saw narcotics inside 8521 South Burley Avenue. Moreover, Luce
did not know if the informant, described as a confidential informant,
had ever been used in prior cases and Luce’s report did not indicate
that the informant was reliable. Luce testified, though, that
surveillance was set up based upon the information from this
informant.
Luce acknowledged that no one saw where the bag containing
currency came from or who gave it to Mojica, merely that Mojica
came out of the South Burley Avenue address carrying it.
Additionally, Luce admitted that neither he nor any other officers
could see through the bag. Moreover, Luce testified that when Mojica
was stopped while driving the Nissan Maxima, he was stopped not for
any traffic violation or the commission of any crime, but because
officers believed that he had something to do with their narcotics
surveillance. Essentially, Mojica was stopped solely to see if there
were drugs in the bag. While money was eventually found, no
narcotics were found in the car, nor was it known, at the time of the
stop, that Mojica was operating the car without a valid driver’s
license. Additionally, Luce testified that Mojica never told officers that
there were narcotics inside the Burley Avenue address, never told
officers that he got the money from the Burley Avenue address or
from defendant, and never told officers that the money constituted the
proceeds of narcotics.
Luce testified further on cross-examination that he could not see
what was in the boxes defendant brought from 8521 South Burley
Avenue to his truck. Moreover, Luce acknowledged that defendant’s
activity of pulling his truck over and looking in his mirrors could be
construed as normal activity. Regarding the eventual stop of defendant
at the tollbooth, Luce stated that while he believed it occurred in
Illinois, he was not certain and it could have been in Indiana. He also
stated that the stop was not carried out to give defendant a traffic
ticket but was actually carried out because of Luce’s belief that
surveillance was compromised and officers were conducting a drug
investigation.
Luce testified that while he could smell cannabis when he
approached defendant’s truck, he did not actually see the cannabis
until he opened the boxes inside the truck. Luce testified that the
boxes were opened without obtaining defendant’s consent. Moreover,
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Luce stated that before he opened the boxes, and even before he read
defendant his rights, he asked defendant what was inside. Luce also
testified, though, that before asking defendant what was in the boxes
he told defendant that the police were pulling him over because they
believed that a narcotics transaction occurred.
On cross-examination, the defense asked several questions and
Luce testified extensively regarding the eventual search of the Burley
Avenue address. This testimony was unaltered from Luce’s testimony
regarding the home search on direct examination. Luce stated that
officers brought defendant back to the Burley Avenue address,
explained the consent-to-search form to defendant, one of the officers
read the form to defendant, Officer Luce filled out the form, and then
defendant signed it. Luce testified that he and the officers did not
immediately knock on the front door of 8521 South Burley Avenue
upon arriving, instead waiting until after defendant had already signed
the consent-to-search form.
The parties stipulated to the testimony of another officer who took
part in the investigation. Detective Schnoor would have testified that
he saw the boxes that were eventually found to contain cannabis being
taken out of 8521 South Burley Avenue one at a time by defendant.
Moreover, he would have testified that in taking those boxes out
defendant looked up and down the street, conduct which he believed
indicative of people transporting narcotics. It was also stipulated,
however, that this type of behavior could be seen in law-abiding
citizens as well.
On October 1, 2003, the motion to quash and suppress came up
for argument. Before argument was heard, though, the parties
additionally stipulated that private investigator Joe Carone would
testify he photographed the tollbooth where defendant was arrested,
which was 0.8 miles from the Illinois border, inside Indiana. Defendant
argued not only that the arrest at the tollbooth was improper, but also
that defendant’s later consent to search was involuntarily given.
Defendant contended, while arguing before the trial court, that “[i]f
the initial stop is bad everything that happens after that stop is bad,
including the consent form, the alleged smell and the stop in the other
state, all of that falls.” The State, by contrast, argued that the
anonymous tip, the suspicious driving between two houses multiple
times in one day, the fact that $80,000 dollars was recovered from
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Mojica, and defendant’s conduct which officers believed to be
countersurveillance, taken together, amounted to probable cause.
Considering these arguments, and after making specific factual
findings, the trial court agreed with the State that officers had
probable cause to arrest defendant and denied defendant’s motion.
On October 28, 2003, defendant filed another motion to suppress,
this time specifically referring only to the evidence seized as a result
of the search at defendant’s residence at 8521 South Burley Avenue.
No hearing was held on this motion. The motion was again presented,
however, on March 8, 2004, in tandem with defendant’s motion to
vacate the trial court’s earlier denial of defendant’s motion to suppress
evidence. The March 8 motion, presented in a single document, asked
the trial court to enter orders: “A. Vacating the order entered October
01, 2003, denying the defendant’s motion to suppress; B. Holding an
evidentiary hearing on the defendant’s motion to suppress the items
seized from his home on October 11; C. Granting the motion to
suppress the items seized from the defendant’s home at 8521 South
Burley, Chicago, Illinois on October 11, 2001.”
On June 8, 2004, the trial court heard argument regarding
defendant’s March 8 motion to vacate and motion to suppress.
Defendant asserted that the original motion to suppress, filed on July
23, 2002, and denied by the trial court on October 1, 2003,
“concerned itself only solely and exclusively with the search of the car
and [defendant’s] arrest and probable cause for his arrest. It did not
concern itself in any way with the search *** later that day of
defendant’s home.” Defendant contended that the issue of the search
at defendant’s home had never been litigated or ruled upon. Defendant
acknowledged, though, that the trial court previously denied the
motion to quash and suppress with respect to the search of
defendant’s car and his arrest.
Supporting the new motion, defendant asserted that the arrest was
illegal because it took place in Indiana. Defendant asserted that
pursuant to Indiana statutory law, after Chicago police officers
arrested defendant, they were required to take defendant before a
judge of the Indiana county in which the arrest was made for a bond
hearing. Ind. Code Ann. §35–33–3–2 (Michie 1998). Because that
was not done in this case, defendant contended his arrest was invalid.
Based on this argument, defendant asked the trial court to vacate the
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original denial of the motion to suppress and grant the motion to
suppress.
In response, the State acknowledged that defendant should have
been brought before an Indiana judge for a bond hearing. The State
argued, though, that the failure to do so was harmless and for the trial
court “to suppress any evidence recovered by the police officers
including a consent to search, including all the cannabis that was
found in defendant’s vehicle, including all of the evidence that was
found at the address [in] Illinois is too harsh for the circumstances in
this case.” The State asserted that the trial court already heard all of
the arguments defendant made in this motion in the previous motion,
specifically noting that the trial court heard arguments about the
legality of defendant’s arrest in Indiana when it considered defendant’s
first motion to suppress. Accordingly, the State requested the trial
court to again deny defendant’s motion.
The trial court noted that it was undisputed that the arrest in this
case took place in Indiana. The court then pointed out that Indiana
was not afforded, as required by Indiana statute, the opportunity to
determine whether there was probable cause for defendant’s arrest.
Ind. Code Ann. §35–33–3–2 (Michie 1998). Moreover, extradition
procedures required by Indiana statute were not followed. Ind. Code
Ann. §35–33–3–2 (Michie 1998). In light of the above, the trial court
vacated its denial of the original motion to quash and suppress and
granted defendant’s new motion to quash and suppress the evidence
in Indiana. Having done this, the court set a future date for a hearing
on the motion regarding the search of the Burley Avenue address.
This hearing was never held, though, as the trial court went back on
the record the same day, June 8, 2004, and granted the motion to
suppress with regards to the evidence obtained at the Burley Avenue
address. The trial court noted that the information retrieved at 8521
South Burley Avenue resulted from the “wrongful detention in
bringing [defendant] back across the state line,” which was the same
basis the court utilized in granting defendant’s motion to vacate.
With this factual and procedural background in mind, we turn to
our analysis.
ANALYSIS
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In its petition for leave to appeal, the State presents two
arguments. First, the State asserts that an Illinois court need not
inquire into extradition irregularities for crimes committed within
Illinois’ borders, as such irregularities affect neither the guilt nor the
innocence of the accused, nor the jurisdiction of the Illinois court to
try a defendant. Second, the State contends that exclusion is not the
appropriate remedy in this case. As the facts are not in dispute and
these arguments present questions of law, review is de novo. People
v. McCarty, 223 Ill. 2d 109, 148 (2006).
A. Procedural Issues
Before addressing the State’s arguments, we first address several
procedural arguments. Defendant asserts that the State’s position is
essentially that an individual arrestee may not contest the validity of
the arrest and postarrest procedures visited upon him. Defendant
contends that this argument was not presented to the trial court by the
State and thus is forfeited. People v. O’Neal, 104 Ill. 2d 399, 407
(1984). In a similar vein, defendant argues that the State never
presented argument regarding the law of extradition in the trial court,
and thus any reliance on such law is also forfeited. Additionally,
defendant asserts that the State failed to argue the good-faith doctrine
before the trial court or the appellate court, and, accordingly,
argument on that point is forfeited as well.
The State asserts that it has sufficiently preserved its claims to
survive forfeiture. First, the State argues that defendant
mischaracterizes its argument. The State contends that its argument
is not premised upon standing, but on the position that irregularities
in extradition affect neither the guilt nor the innocence of a defendant,
nor the jurisdiction of the court to try him. Defendant, in arguing
before the trial court, specifically referenced the extradition clause of
the United States Constitution and asserted that in this case, Chicago
police officers essentially acted as “kidnappers when they took
[defendant] from Indiana back in Illinois.” The State also specifically
referred to the extradition clause before the trial court and argued that
the officers’ failure to adhere to Indiana’s postarrest statutory
procedures was harmless and did not deprive the trial court of
jurisdiction to consider the case. Like the parties, the trial court
referred to the extradition clause, noting that “what was skipped in
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this case was the fact that there was no extradition hearing *** we
have skipped the extradition proceedings in Indiana and I feel that that
is determinative in this case of the law that should be applied.”
Likewise, the State claims that defendant mischaracterizes its
argument regarding good faith. The State asserts that it is not arguing
for a good-faith exception to the exclusionary rule. Instead, it is the
State’s position that the officers in this case did not intentionally
ignore Indiana’s statutory scheme and thus the exclusionary rule
should never even be invoked. According to the State, exclusion is
unwarranted in this case based upon the deterrent effect/detriment to
society considerations necessary to deciding if the rule should be
invoked in the first place. See, e.g., Hudson v. Michigan, 547 U.S.
586, 591, 165 L. Ed. 2d 56, 64, 126 S. Ct. 2159, 2163 (2006)
(explaining that the exclusionary rule should only be applied where its
deterrence benefits outweigh its substantial social costs); People v.
Coleman, 227 Ill. 2d 426 (2008) (where this court noted that if the
main purpose of the exclusionary rule is to deter future police
misconduct the interests of justice are not served by suppressing
electronic surveillance gathered pursuant to federal law in
contravention of state law, unless there is evidence of collusion to
avoid the state law requirements). The State points out that arguments
regarding good faith were presented in the trial court, the appellate
court, and in the petition for leave to appeal in this court. Indeed, both
the trial and appellate court referenced good faith in their decisions,
with the trial court making its decision “regardless of the good faith
of the officers” and the appellate court asserting that “Chicago police
officers blatantly disregarded” portions of Indiana’s fresh pursuit
statute. 367 Ill. App. 3d at 881.
This court has considered the purpose of the forfeiture rule
repeatedly, noting:
“ ‘ “Failure to raise issues in the trial court denies that court
the opportunity to grant a new trial, if warranted. This casts a
needless burden of preparing and processing appeals upon
appellate counsel for the defense, the prosecution, and upon
the court of review. Without a post-trial motion limiting the
consideration to errors considered significant, the appeal is
open-ended. Appellate counsel may comb the record for every
semblance of error and raise issues on appeal whether or not
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trial counsel considered them of any importance.” ’ ” People
v. Lewis, 223 Ill. 2d 393, 400 (2006), quoting People v.
Enoch, 122 Ill. 2d 176, 186 (1988), quoting People v.
Caballero, 102 Ill. 2d 23, 31-32 (1984).
It is apparent in this case that while the State’s arguments regarding
extradition and good faith were not as extensively made or fully
developed in the lower courts as they are before this court, they were
raised and considered. As such, it would not serve the purposes of the
forfeiture rule to apply it under these circumstances and we will not
do so.
Defendant also contends that this case involves two separate and
independent searches, one of defendant’s truck and one of the Burley
Avenue address. Defendant asserts that the State’s notice of appeal
was limited to the quashing of defendant’s arrest and the search of his
car, and thus this court lacks the jurisdiction to determine the validity
of the search of the Burley Avenue address. Defendant points out that
Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)) provides that
the State has the right to appeal from the denial of a motion to
suppress and Supreme Court Rule 606 (210 Ill. 2d R. 606) provides
that the filing of a notice of appeal is jurisdictional.
This case does involve two separate searches. However, this does
not establish that the validity of the search at the Burley Avenue
address presents a question beyond this court’s jurisdiction. The
record establishes that the trial court was presented with extensive
evidence and testimony regarding the search at 8521 South Burley
Avenue. Both parties discussed the search of the home at the
evidentiary hearing and both parties referenced it in making
arguments. Defendant’s original motion to quash and suppress was
broadly written and specifically asked that all “knowledge and fruits
*** and products” of his arrest and detention be suppressed.
Moreover, defendant argued that during his arrest and subsequent
detention, the State “became aware of the existence of physical
evidence all the direct and indirect fruits of the arrest and detention,
which connect petitioner with the instant offense.” The evidence found
at the Burley Avenue address constitutes the fruits and products of
defendant’s arrest, just as it connects petitioner with the offenses
charged.
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The fact that defendant later filed a second motion to suppress,
this time only referencing the home search, does not alter that fact that
the home search was at issue and considered in the first motion to
suppress. Considering this, it is not surprising that the trial court did
not hold another evidentiary hearing and did not specifically consider
the second motion to suppress filed on October 28, 2003, as it seems
merely to constitute an attempt to revive a portion of the previously
ruled upon motion. The trial court’s discussion of defendant’s later
motion to vacate and motion to suppress, filed on March 8, 2004,
supports this position. After granting the motion to vacate on June 8,
2004, the trial court initially set a later date to argue the motion to
suppress. Instead of waiting until a later date, however, the trial court
went back on the record that same day and granted the motion to
suppress the evidence seized at 8521 South Burley Avenue. In so
doing, the trial court pointed out that the information retrieved at
8521 South Burley Avenue resulted from the “wrongful detention in
bringing [defendant] back across the state line,” which was the same
basis the court utilized in granting defendant’s motion to vacate.
Our conclusion that this court has jurisdiction to consider the
validity of the house search is further supported by the State’s notice
of appeal. The notice of appeal referenced two dates of judgment or
order: June 8, 2004, and July 21, 2004. As already discussed, the trial
court granted defendant’s motion to vacate, thus granting defendant’s
first filed motion to suppress (which we find included the evidence
seized at the house search), on June 8, 2004. On the same date, the
trial court granted defendant’s motion to suppress evidence seized at
8521 South Burley Avenue. The July 21, 2004, date references the
trial court’s denial of the State’s motion to reconsider the June 8
ruling. In its motion to reconsider, the State specifically asked the trial
court to “reconsider its rulings on June 8, 2004, to reinstate its
findings that there was probable cause to arrest Defendant and that the
cannabis from Defendant’s vehicle was properly seized, and to find
that the evidence seized from the Burley address resulted from a
voluntary and properly obtained consent to search.” Accordingly, the
State’s notice of appeal adequately referred to the home search.
In light of the above, we find that the State complied with this
court’s rules and we will consider the validity of the search of the
Burley Avenue address. As already noted, we do not find any of the
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State’s argument forfeited and will consider the State’s arguments
concerning extradition and good faith. Finding that the State has
adequately preserved its arguments, we turn to the merits.
B. Merits
The two Indiana statutory sections primarily at issue in this case
comprise portions of Indiana’s Uniform Act on Fresh Pursuit. The
first section (Ind. Code Ann. §35–33–3–1 (Michie 1998)), entitled
“Fresh pursuit–Peace officers of other states–Authority to arrest in
Indiana,” provides:
“Any member of a duly organized state, county, or
municipal peace unit of another state who enters this state in
fresh pursuit, and continues within this state in such fresh
pursuit of a person in order to arrest him on ground that he is
believed to have committed a felony in the other state, shall
have the same authority to arrest and hold such person in
custody as has any law enforcement officer of this state to
arrest and hold in custody a person on the ground that he is
believed to have committed a felony in this state.”
The second section, Ind. Code Ann. §35–33–3–2 (LexisNexis 1998),
entitled “Arrest–Hearing–Commitment or discharge,” provides:
“If an arrest is made in this state by an officer of another
state in accordance with the provisions of section 1 of this
chapter, he shall, without unnecessary delay, take the person
arrested before a judge of the county in which the arrest was
made. The judge shall conduct a hearing for the purpose of
determining the lawfulness of the arrest. If the judge
determines that the arrest was lawful, he shall commit the
person arrested to await for a reasonable time the issuance of
an extradition warrant by the governor of this state. If the
judge determines that the arrest was unlawful, he shall
discharge the person arrested.”
The trial and appellate courts found that because the Chicago police
officers did not comply with the second statutory section, Ind. Code
Ann. §35–33–3–2 (LexisNexis 1998), they were not authorized to
arrest defendant and thus the evidence against him must be
suppressed.
-15-
I. The State’s Position
The State points out that in Gerstein v. Pugh, 420 U.S. 103, 111,
43 L. Ed. 2d 54, 63, 95 S. Ct. 854, 861 (1975), the United States
Supreme Court found that “the standards and procedures for arrest
and detention have been derived from the Fourth Amendment and its
common-law antecedents.” Moreover, this court has recognized that
at common law police officers had the authority to arrest a defendant
outside the territorial limits of the political entity which appointed
them to their office when the officers were in fresh pursuit of a felon
or a suspected felon fleeing that jurisdiction. People v. Lahr, 147 Ill.
2d 379, 382 (1992). According to the State, Indiana’s Uniform Act on
Fresh Pursuit merely codifies the common law principle authorizing
felony fresh pursuit extraterritorial arrest which has already been
codified in the fourth amendment.
The State asserts that it complied with the fourth amendment in
this case. The State points out that the trial court initially denied
defendant’s motion to quash and suppress after a full evidentiary
hearing, considering extensive testimony regarding defendant’s arrest,
the search of his car, and the search of the Burley Avenue address.
Upon reconsidering its rulings, the trial court never questioned the
court’s initial findings, this time only altering its ultimate legal
conclusion based upon defendant’s statutory argument. Likewise, the
appellate court limited its consideration to the legal questions
revolving around noncompliance with Indiana’s fresh pursuit statute
and whether the proper remedy is suppression. 367 Ill. App. 3d at
879. According to the State, then, while Chicago police may not have
complied with Indiana’s post-arrest statutory procedures, their actions
arresting defendant and seizing evidence against him clearly comport
with the fourth amendment and its common law antecedents.
The State further points out that the arrest was substantively
authorized by Indiana statute. In fact, the appellate court specifically
noted that “[t]he parties agree that, in compliance with section
35–33–3–1 of Indiana’s fresh pursuit statute, the Chicago police were
properly in fresh pursuit of defendant, whom the Chicago police
believed had committed a felony.” 367 Ill. App. 3d at 880. Even in his
brief before this court, defendant acknowledges the same, stating that
he agrees “Chicago police officers had the authority to follow the
-16-
defendant into the State of Indiana, and Indiana having adopted the
Uniform Act on Fresh Pursuit, arrest him.”
According to the State, only section 35–33–3–2 of Indiana’s fresh
pursuit statute was violated, and unless that provision is mandated by
a component of the federal Constitution, noncompliance with the
section has no bearing on the legitimacy of the arrest or the
subsequent actions of the Chicago police and State of Illinois. The
State asserts that because this is an Illinois prosecution, in an Illinois
court, for offenses committed wholly within Illinois’ borders, and
because the arrest complies with the fourth amendment, whether
Illinois evaluates the matter with respect to Indiana’s statutory scheme
presents a discretionary question premised upon principles of comity.
Put simply, the State asserts that the Chicago police officers’
noncompliance with Ind. Code Ann. §35–33–3–2 (LexisNexis 1998)
did not make defendant’s arrest unlawful.
The State points out that section 35–33–3–2 of Indiana’s fresh
pursuit statute not only provides an arrestee with a probable cause
hearing, but also serves to set forth the initial step in the extradition
process which typically takes place in an interstate fresh pursuit
scenario. In this case, the State acknowledges that by summarily
removing defendant from Indiana and bringing him to Illinois to face
prosecution, the Chicago officers bypassed the procedural mechanisms
set forth in section 35–33–3–2, and indeed the entirety of the statute’s
extradition proceedings. Nevertheless, the State argues that this did
not offend the extradition clause or the prompt presentment
requirements of the federal Constitution.
The extradition clause provides that “[a] Person charged in any
State with Treason, Felony, or other Crime, who shall flee from
Justice, and be found in another State, shall on Demand of the
executive Authority of the State from which he fled, be delivered up,
to be removed to the State having Jurisdiction of the Crime.” U.S.
Const., art. IV, §2. The State points out, though, that a long line of
United States Supreme Court precedent, known as the Ker-Frisbie
doctrine, has established that irregularities in the extradition of a
fugitive from justice for an otherwise constitutional prosecution
“affects neither the guilt nor innocence of the accused, nor the
jurisdiction of the court to try him.” Ker v. People, 110 Ill. 627, 637
(1884), aff’d, 119 U.S. 436, 30 L. Ed. 421, 7 S. Ct. 225 (1886);
-17-
Frisbie v. Collins, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509 (1952);
United States v. Alvarez-Machain, 504 U.S. 655, 119 L. Ed. 2d 441,
112 S. Ct. 2188 (1992). In Mahon v. Justice, 127 U.S. 700, 712, 32
L. Ed. 283, 287, 8 S. Ct. 1204, 1211 (1888), the Supreme Court held
that “the offender against the law of the State is not relieved from
liability *** because of indignities committed against another state.”
More recently, the Supreme Court, considering principles of
federalism, noted that “an accused ‘should not be permitted to use the
machinery of one sovereignty to obstruct his trial in the courts of the
other, unless the necessary operation of such machinery prevents his
having a fair trial.’ ” Wilson v. Schnettler, 365 U.S 381, 385, 5 L. Ed.
2d 620, 624, 81 S. Ct. 632, 635 (1961), quoting Ponzi v. Fessenden,
258 U.S. 254, 260, 66 L. Ed. 607, 611, 42 S. Ct. 309, 310 (1922).
In the State’s view, the above makes clear that Illinois courts are
not required to measure defendant’s arrest by the statutory overlays
of Indiana’s postarrest procedural provision. The State asserts that if
there is any affront in this case, it is to Indiana and not to defendant.
Considering this, the State acknowledges that this court could elect to
decline to exercise jurisdiction as a discretionary matter premised
upon comity. The State argues, though, that this court should not do
so in view of its longstanding adherence to the Ker-Frisbie doctrine,
as well as the Supreme Court of Indiana’s adherence to the same. Ker,
110 Ill. 627; People v. Klinger, 319 Ill. 275, 278 (1925); People ex
rel. Lehman v. Frye, 35 Ill. 2d 343 (1966); Massey v. State, 267 Ind.
504, 507, 371 N.E.2d 703, 705 (1978) (“A trial court’s jurisdiction
does not depend upon the legality of [defendant’s] arrest or return to
the wanting state”). Indeed, the State points out that the Supreme
Court of Indiana has recognized that comity, in certain circumstances,
should not be utilized so as to effect the release of a defendant based
upon mere technicalities. Cozart v. Wolf, 185 Ind. 505, 512-13, 112
N.E. 241, 243 (1916).
Corollary to the above, the State points out that while defendant
was not afforded a Gerstein hearing in Indiana as required by Ind.
Code Ann. §35–33–3–2 (LexisNexis 1998), he was afforded a proper
Gerstein hearing in Illinois. Such a hearing, mandated by the fourth
amendment, affords a defendant arrested without a warrant prompt
“judicial determination of probable cause as a prerequisite to extended
restraint of liberty following arrest.” Gerstein, 420 U.S. at 114, 43 L.
-18-
Ed. 2d at 65, 95 S. Ct. at 863. Since a Gerstein hearing was held,
then, the State contends that the fact that the hearing did not take
place in Indiana should render defendant’s arrest unlawful only if this
court chooses to acknowledge and give effect to Ind. Code Ann.
§35–33–3–2 (LexisNexis 1998) based upon principles of comity. For
the reasons already discussed, the State argues against this. Moreover,
the State points out that courts in other states have held that as long
as a Gerstein hearing is properly held, what state it is held in is
constitutionally insignificant. See Six Feathers v. State, 611 P.2d 857,
862 (Wyo. 1980); Weaver v. Commonwealth, 29 Va. App. 487, 513
S.E.2d 423 (1999).
In addition to the above arguments, the State asserts that the
exclusionary rule is inapplicable to the facts of this case. The State
notes that by its plain language, the fourth amendment “contains no
provision expressly precluding the use of evidence obtained in
violation of its commands.” Arizona v. Evans, 514 U.S. 1, 10, 131 L.
Ed. 2d 34, 43, 115 S. Ct. 1185, 1191 (1995). The Supreme Court
crafted the exclusionary rule as a “judicially created remedy” to
“safeguard Fourth Amendment rights generally through its deterrent
effect.” United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d
561, 571, 94 S. Ct. 613, 620 (1974). The exclusionary rule is not
reflexively applied. The Supreme Court has even stated that
“[s]uppression of evidence *** has always been our last resort, not
our first impulse.” Hudson, 547 U.S. at 591, 165 L. Ed. 2d at 64, 126
S. Ct. at 2163. Indeed, the rule is only applied where its deterrence
benefits outweigh its substantial societal costs. Hudson, 547 U.S. at
591, 165 L. Ed. 2d at 64, 126 S. Ct. at 2163.
The State asserts that the exclusionary rule was designed to police
federal constitutional violations rather than nonconstitutionally
compelled state statutory violations, particularly where the arrest itself
was constitutionally legitimate. See, e.g., United States v. Caceres,
440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979) (considering
a violation of IRS regulations which did not rise to the level of a
constitutional violation and noting that “our precedents enforcing the
exclusionary rule to deter constitutional violations provide no support
for the rule’s application”). Additionally, the State points out that
outside the mandatory reach of the federal constitutional exclusionary
rule, the Supreme Court has found that “[t]he States are not
-19-
foreclosed by the Due Process Clause from using a similar
[cost/benefit] balancing approach to delineate the scope of their own
exclusionary rules.” California v. Greenwood, 486 U.S. 35, 44-45,
100 L. Ed. 2d 30, 39-40, 108 S. Ct. 1625, 1631 (1988). This court
has recognized this principle and utilized it in numerous instances.
See, e.g., People v. DeMorrow, 59 Ill. 2d 352, 354 (1974) (“whether
or not any given search and seizure is unconstitutional, as violative of
the fourth *** amendment[ ], as a matter of substantive law, is to be
decided by the pronouncements of the United States Supreme Court.
*** The decision of what State courts may deem to be admissible in
their systems according to their laws of evidence is an entirely
separate question”); People v. Willis, 215 Ill. 2d 517, 532 (2005)
(exclusionary rule not applied where detention ran afoul of Gerstein,
but confession voluntary); People v. Burnidge, 178 Ill. 2d 429 (1997)
(exclusionary rule not applied because of violation of clergy/penitent
evidentiary privilege); People v. Harris, 182 Ill. 2d 114 (1998)
(exclusionary rule not applied where defendant was transferred from
jail in violation of Illinois Habeas Corpus Act).
Considering the above, the State argues that not only is the
application of the exclusionary rule not compelled by the federal
Constitution, it is also not compelled by this state’s own exclusionary
principles. The State points out that this court has noted that “there is
no constitutional barrier, other than the fourth amendment, which
precludes one jurisdiction from refusing to honor the standards of
another relative to the validity of an arrest or search.” People v.
Saiken, 49 Ill. 2d 504, 510 (1971). Moreover, precedent establishes
a trend on the part of courts in other states not to invoke their
exclusionary rules as a per se remedy in situations involving a
constitutional extraterritorial arrest that also violated a statutory
provision of a nonconstitutional dimension. See, e.g., People v.
Porter, 742 P.2d 922 (Colo. 1987); State v. Pike, 642 A.2d 145 (Me.
1994); City of Kettering v. Hollen, 64 Ohio St. 2d 232, 416 N.E.2d
598 (1980); Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267
(1986); State v. Barker, 143 Wash. 2d 915, 25 P.3d 423 (2001).
Applying the deterrence benefits/societal costs analysis of the
exclusionary rule specifically, the State points out that the officers
involved in this case were not even aware that they were in Indiana
when they arrested defendant. Accordingly, the police officers did not
-20-
violate Indiana’s statutory procedure for extradition out of disrespect
for Indiana’s laws or territorial borders, but because defendant ran for
the border. The State notes that the exclusionary rule is “calculated to
prevent, not to repair.” Elkins v. United States, 364 U.S. 206, 217, 4
L. Ed. 2d 1669, 1677, 80 S. Ct. 1437, 1444 (1960). As such, the State
argues that applying the exclusionary rule in this situation, involving
inadvertent police action, would not act as a deterrent, as the officers
would not even be aware of their error. Further, the State argues that
applying the exclusionary rule would have substantial societal cost.
II. Defendant’s Position
Defendant agrees that Chicago police had the authority to follow
defendant into Indiana and arrest him, citing Ind. Code Ann.
§35–33–3–1 (Michie 1998). However, defendant disagrees with the
State that officers were free to disregard Ind. Code Ann. §35–33–3–2
(Michie 1998). Supporting his position, defendant notes that in United
States v. Di Re, 332 U.S. 581, 589, 92 L. Ed. 210, 217, 68 S. Ct. 222,
226 (1948), the Supreme Court stated that “in the absence of an
applicable federal statute the law of the state where an arrest without
warrant takes place determines its validity.”
Defendant points out that in Wyoming v. Houghton, 526 U.S. 295,
299-300, 143 L. Ed. 2d 408, 414, 119 S. Ct. 1297, 1300 (1999), the
Supreme Court stated that to determine whether a governmental
action violates the fourth amendment, courts must “inquire first
whether the action was regarded as an unlawful search or seizure
under the common law when the [fourth] Amendment was framed.”
Defendant argues that examining the common law of arrest as it
existed in Indiana before the adoption of the Uniform Act on Fresh
Pursuit, it is clear that Chicago police would not have been able even
to make an arrest pursuant to a lawful warrant in Indiana. Martin v.
Newland, 196 Ind. 58, 61, 147 N.E. 141, 142 (1925) (“a warrant
issued by a court in Illinois could not have any extraterritorial effect,
and conferred no authority to arrest and imprison the petitioner in
Indiana, without a warrant issued by a court or other proper officer of
the State of Indiana”).
Defendant further argues that this court has rejected the position
that Illinois police officers are free to disregard the statutes limiting
-21-
their jurisdiction. Defendant points to People v. Lahr, where this court
considered a situation where a defendant was arrested by a Sleepy
Hollow, Illinois, police officer outside of Sleepy Hollow’s boundaries
and held that the arrest powers of a law enforcement officer operating
“ ‘outside of the respective police authorities’ area of jurisdiction’ ”
are circumscribed and limited to those possessed by a citizen. Lahr,
147 Ill. 2d at 387.
Similarly, defendant points to People v. Carrera, 203 Ill. 2d 1
(2002), where this court considered a situation where Chicago police
officers, after conducting surveillance, arrested a defendant in Franklin
Park, Illinois. The defendant in Carrera asserted that Chicago police
officers did not have the authority to arrest him outside the territorial
limits of the City of Chicago. This court agreed, holding that “Illinois
law is settled that the exclusionary rule is applicable where the police
effectuate an extraterritorial arrest without appropriate statutory
authority.” Carrera, 203 Ill. 2d at 11.
According to defendant, Lahr and Carrera refute the State’s
argument that the existence of probable cause to arrest is the only
requirement for a valid arrest. In defendant’s view, it is illogical to
contend that a Sleepy Hollow, Illinois, police officer may not use his
police arrest powers to arrest outside Sleepy Hollow, Illinois, and that
a Chicago, Illinois, police officer may not make a valid arrest
supported by probable cause in Franklin Park, Illinois, absent statutory
authority, but that the same Chicago police officer has the authority
to enter and make an arrest in Indiana and remove the arrestee to
Illinois.
Considering the exclusionary rule and its application to the facts
of this case, defendant points to Commonwealth v. Sadvari, 561 Pa.
588, 752 A.2d 393 (2000). In Sadvari, Pennsylvania state troopers
stopped a speeding defendant less than a mile inside the State of
Delaware, performed sobriety tests on the defendant which he failed,
and then transported him back to Pennsylvania for chemical testing.
The defendant moved to suppress the results of the chemical test,
asserting that his arrest did not conform to the Delaware fresh pursuit
statute, as a Delaware magistrate was not afforded the opportunity to
consider the lawfulness of the arrest. The Supreme Court of
Pennsylvania held that because the Pennsylvania state troopers
ignored Delaware’s statutory requirement that the defendant be
-22-
brought before a Delaware court, “the arrest was illegal.” Sadvari,
561 Pa. at 598, 752 A.2d at 398. Additionally, in considering the
remedy, the Pennsylvania Supreme Court held that “application of the
exclusionary rule will serve primarily as a demonstration of comity to
vindicate Delaware’s sovereignty in light of Pennsylvania’s incursion
upon this important state interest. Suppression is also appropriate to
encourage future compliance with Delaware’s procedures and, in a
more general sense, to safeguard the individual right to be free from
unlawful seizures.” Sadvari, 561 Pa. at 598-99, 752 A.2d at 399.
Additionally, defendant points to People v. Jacobs, 67 Ill. App. 3d
447 (1979), where our appellate court considered a situation where
Illinois police obtained a warrant for a defendant’s arrest, pursued him
into the State of Iowa, arrested him, and brought him back to Illinois,
where he was extensively interrogated and eventually confessed. The
Jacobs court held that the Illinois police officers had no authority to
arrest the defendant, except that granted them by the uniform fresh
pursuit law of the State of Iowa. Jacobs, 67 Ill. App. 3d at 449. That
law, similar to Ind. Code Ann. §35–33–3–2 (Michie 1998), required
out-of-state police officers, after effecting an arrest, to take the person
arrested before an in-state magistrate for a Gerstein hearing, among
other things. Jacobs, 67 Ill. App. 3d at 449-50. The Jacobs court held
that because the mandates of Iowa’s fresh pursuit law were “blithely
and summarily ignored,” the defendant’s later confessions stemmed
from an illegal arrest and were inadmissible.
Further supporting his position, defendant cites United States v.
Holmes, 380 A.2d 598 (D.C. App. 1977), where the District of
Columbia Court of Appeals considered a situation where Maryland
police officers arrested a defendant in the District of Colombia as he
got off a bus from Maryland. While the defendant consented to return
to Maryland, the court held that the consent was illegally procured
and noted that “this court has heretofore made clear that such an
arrest is valid only under authority of the Uniform Act on Fresh
Pursuit.” (Emphasis in original.) Holmes, 380 A.2d at 600.
Substantively addressing the State’s argument concerning good
faith, defendant asserts that the good-faith doctrine is limited to
arrests and searches conducted pursuant to a warrant. Defendant’s
argument on this point is brief. Defendant points out that the Supreme
Court has stated that “[r]easonable minds frequently may differ on the
-23-
question whether a particular affidavit establishes probable cause, and
we have thus concluded that the preference for warrants is most
appropriately effectuated by according ‘great deference’ to a
magistrate’s determination.” United States v. Leon, 468 U.S. 897,
914, 82 L. Ed. 2d 677, 693, 104 S. Ct. 3405, 3416 (1984). Moreover,
citing to People v. Turnage, 162 Ill. 2d 299, 308 (1994), defendant
points out that this court has stated that “[t]he Leon Court was careful
to limit the contours of its ruling.” Additionally, defendant asserts that
the subjective beliefs of an arresting officer are irrelevant with regard
to establishing probable cause for a warrantless arrest. See Whren v.
United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 98, 116 S. Ct.
1769, 1774 (1996) (“Subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis”).
III. Extradition Irregularities, the Exclusionary Rule, and the Facts
of This Case
We agree with the State that defendant’s arrest should not be
quashed nor the evidence against him suppressed. The Supreme Court
has stated that to determine whether a governmental action violates
the fourth amendment, courts must “inquire first whether the action
was regarded as an unlawful search or seizure under the common law
when the [fourth] Amendment was framed.” Houghton, 526 U.S. at
299-300, 143 L. Ed. 2d at 414, 119 S. Ct. at 1300. This does not
mean, as defendant suggests, however, that we must examine the
common law of arrest as it existed in Indiana before the adoption of
the Uniform Act on Fresh Pursuit. Instead, as the State suggests, it
means that we must examine the common law in place at the time of
the enactment of the fourth amendment. As noted above, this court
has already done this, stating, “[a]t common law, municipal and
county police officers had no authority to arrest a defendant outside
the territorial limits of the political entity which appointed them to
their office. The sole exception to this rule at common law was when
the officers were in ‘fresh pursuit’ of a suspected felon fleeing that
jurisdiction.” Lahr, 147 Ill. 2d at 382.
Here, the evidence clearly indicates that the Chicago police
officers who eventually stopped defendant did so believing that he was
engaged in drug trafficking and was attempting to escape. The
Chicago police officers were thus in fresh pursuit of a person they
-24-
suspected to be a fleeing felon. Pursuant to our analysis in Lahr, then,
they had the commonlaw authority to effect an arrest of that person
outside the territorial limits of the political entity that appointed them.
Additionally, there is no question, and defendant has even agreed, that
the arrest that occurred in this case was substantively authorized by
Indiana statute. See Ind. Code Ann. §35–33–3–1 (Michie 1998).
It is also worth noting that defendant’s sole fourth amendment
argument before this court revolves around his contention that
Chicago police violated Ind. Code Ann. §35–33–3–2 (Michie 1998).
This is not surprising considering the procedural posture of this case.
As already detailed, defendant’s first filed motion to suppress was
very broad, requesting the trial court quash his arrest and suppress,
among other things, the “[p]hysical evidence discovered and as a
result of arrest and detention” and “[a]ll other knowledge and fruits
*** and products of the arrest.” After holding a detailed evidentiary
hearing and considering extensive argument on this motion, including
evidence and argument regarding the home search, the trial court
denied the motion to quash and suppress. Before this court, defendant
advances no fourth amendment argument other than that based upon
Indiana statute. Accordingly, if we find no fourth amendment violation
based upon Indiana statute, there is no other basis argued for us to
find such a violation. Defendant already advanced a variety of other
fourth amendment based arguments in the trial court, lost those
arguments, and no longer advances them on appeal.
The Illinois cases defendant cites do not settle this case as a matter
of law. Lahr, Carrera, and Jacobs all involved situations
distinguishable from this case. In Lahr, the defendant was not a fleeing
felon and he was arrested by a police officer using his police authority
outside of the territorial limits of the political entity which appointed
him. Lahr, 147 Ill. 2d at 382, 386-87. This arrest was thus invalid.
Lahr, 147 Ill. 2d at 386-87. In Carrera, the defendant was arrested by
police officers utilizing a statute that was later declared void ab initio.
Carrera, 203 Ill. 2d at 14-15. Accordingly, this court held that the
defendant’s arrest was unlawful. Carrera, 203 Ill. 2d at 17. In Jacobs,
it appears that police were not in fresh pursuit of the defendant, as he
was arrested in Iowa a day after police had already interrogated and
released him. Jacobs, 67 Ill. App. 3d at 448. Accordingly, the actual
arrest at issue in the Jacobs case may have been invalid even without
-25-
considering postarrest irregularities. Jacobs, 67 Ill. App. 3d at 449.
Additionally, the appellate court in Jacobs noted that its decision in
that case may well have been based upon entirely different reasoning.
Jacobs, 67 Ill. App. 3d at 449 (“It may well be that in spite of having
received Miranda warnings the totality of the circumstances, to-wit,
the defendant’s age, I.Q., reading level, circumstances of his arrest,
the deprecatory advice as to need of counsel, the minimization as to
the seriousness of the crime of murder by a minor, and the police
officer’s offer to help the defendant in any way he could, when
considered in their entirety, might well require the suppression of all
statements made by the defendant during his interrogation session
with the law enforcement authorities of Rock Island County”). Unlike
the present case, then, Lahr, Carrera and Jacobs, all involved
situations where defendant’s arrest occurred under very different
circumstances than those present here.
Defendant’s citation to the Holmes decision is similarly
distinguishable. While the District of Columbia Court of Appeals
touched upon the magistrate provision of Maryland’s fresh pursuit
statute similar to the statutory provision at issue in this case, it was
also questionable whether the defendant’s arrest was valid. Holmes,
380 A.2d at 600 (noting that the trial court’s basis for suppressing
evidence included the fact that “Holmes was arrested without probable
cause ***. Police failed to present Holmes to a District of Columbia
court in accord with statutory provisions. There was ineffective
inquiry into Holmes’ understanding of his rights. Holmes was
intensively interrogated for some four hours in the middle of the night
***. In sum, the police created and exploited circumstances which
resulted in legally inadmissible statements”). Moreover, the court’s
ultimate conclusion in the case was based upon its finding that the trial
court properly found that the defendant’s consent to leave the District
without a hearing and extradition was involuntary. Holmes, 380 A.2d
at 602. As such, none of the cases defendant cites settle the question
at issue in this case, that being whether one state’s noncompliance
with another state’s postarrest procedural statute makes a defendant’s
arrest unlawful where it would otherwise be completely lawful.
While this court has held that “Illinois law is settled that the
exclusionary rule is applicable where the police effectuate an
extraterritorial arrest without appropriate statutory authority”
-26-
(Carrera, 203 Ill. 2d at 11), it has never considered the situation
involved here, where Illinois authorities validly arrested a defendant
but failed to comply with another state’s statutory postarrest
procedural requirements by failing to present that defendant to a
magistrate in the other state for the determination of probable cause
and a formal beginning of the extradition process. Courts in other
states have considered this question and come to different
conclusions.
Some courts have considered situations involving constitutional
extraterritorial arrests that also violated a nonconstitutional statutory
provision of a foreign state and been unwilling to invoke the
exclusionary rule as a remedy. See State v. Dentler, 742 N.W.2d 84,
90 (Iowa 2007) (considering the magistrate provision of Missouri’s
version of the uniform fresh pursuit statute almost identical to that at
issue in this case and refusing to apply the exclusionary rule,
characterizing the violation as “a statutory violation that does not
involve fundamental rights, constitutional overtones, or false
representations of law or other similar police misconduct”); State v.
Ferrell, 218 Neb. 463, 468, 356 N.W.2d 868, 871 (1984)
(considering the magistrate provision of Iowa’s version of the uniform
fresh pursuit statute almost identical to that at issue in this case and
refusing to apply the exclusionary rule finding that the statutory
violation did not affect the validity of the arrest or amount to a due
process violation); State v. Bond, 98 Wash. 2d 1, 14, 653 P.2d 1024,
1032 (1982) (en banc) (refusing to exclude evidence in a situation
where a defendant was arrested by Washington officers in Oregon and
removed to Washington without presentation to an Oregon magistrate
as statutorily required and noting that “[t]he improper interstate
rendition was merely incidental to the arrest and represented no new
intrusion into defendant’s privacy. It represented more of an affront
to the rights of the State of Oregon than of the defendant”).
By contrast, as defendant describes in detail, other courts have
applied the exclusionary rule in situations involving constitutional
extraterritorial arrests that also violated a nonconstitutional statutory
provision of a foreign state. See Sadvari, 561 Pa. at 588, 752 A.2d
393; Jacobs, 67 Ill. App. 3d 447; Holmes, 380 A.2d 598.
We find the analysis in Dentler, Ferrel, and Bond more persuasive
than that found in Sadvari, Jacobs, and Holmes. We find particularly
-27-
instructive the analysis utilized in Dentler, the most recent case to
address this particular issue. After discussing Sadvari and Jacobs, as
well as Ferrell and Bond, the Dentler court noted its commitment to
the exclusionary rule. Dentler, 742 N.W.2d at 87-88. Next, the
Dentler court considered the probable cause for the defendant’s arrest
and pointed out that while he was not brought before a Missouri
magistrate, he was promptly taken before an Iowa judge and thus
“afforded the opportunity to test the validity of his arrest before a
neutral magistrate promptly after his arrest.” Dentler, 742 N.W.2d at
89. Accordingly, the Dentler court found that the defendant’s due
process rights were not violated. Dentler, 742 N.W.2d at 89. The
court thus found that the main issue in the case was “whether a
violation of Missouri statutory law warrants exclusion of evidence” in
Iowa. Dentler, 742 N.W.2d at 89.
Considering that issue, the Dentler court first asked whether the
Missouri statute specifically required the exclusion of evidence and
found that it did not. Dentler, 742 N.W.2d at 89. Next, the court
asked whether the Missouri statute involved a fundamental right of the
defendant. Dentler, 742 N.W.2d at 89. Likewise, the court found that
it did not, pointing out that the main purpose of the magistrate
provision was to vindicate the rights of Missouri not the rights of an
individual defendant. Dentler, 742 N.W.2d at 89 (“To the extent an
ox is being gored in this case, it belongs to Missouri, not Dentler. ***
Ordinarily, a party seeking to invoke the exclusionary rule may not
vicariously assert the rights of another”). Following this, and perhaps
in a nod to principles of comity, the court noted that the defendant
made no argument that there existed a fundamental public policy
difference between Missouri and Iowa which militated in favor of
exclusion. Dentler, 742 N.W.2d at 89. Finally, the court considered
and rejected the concern that without applying the exclusionary rule
to the situation at issue there would be insufficient deterrence to avoid
future similar violations by Iowa police of Missouri statutory law.
Dentler, 742 N.W.2d at 90. In so doing, the court stated:
“Because the benefits of violating the magistrate provision
are so small, however, the incentive for future violations is not
very high. If we are proven wrong in this assessment, the
Missouri legislature may withdraw its authorization of Iowa
peace officers to engage in fresh pursuit. Further, because this
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opinion is narrowly based on the unique facts of this case, law
enforcement officials have no certainty that the exclusionary
rule will be held inapplicable under a different state of facts,
particularly where the record demonstrates willful misconduct.
Finally, in the unlikely event that such violations become a
recurrent problem, this court reserves the right to exercise its
supervisory powers to exclude the evidence in future cases.
[Citations.]” Dentler, 742 N.W.2d at 90.
As in Dentler, aside from the fact that Chicago police failed to
comply with the magistrate provision of Indiana’s Fresh Pursuit
Statute, defendant’s arrest was valid. Defendant’s arrest complied
with the fourth amendment, its common law antecedents, and Indiana
statute. Likewise, while defendant was not brought before an Indiana
magistrate, he was promptly taken before an Illinois judge and thus
afforded the opportunity to promptly test the validity of his arrest
before a neutral magistrate. Accordingly, defendant’s due process
rights were not violated. See Six Feathers, 611 P.2d at 862; Weaver,
29 Va. App. 487, 513 S.E.2d 423. The main issue, then, is whether
the Chicago police officer’s noncompliance with Indiana’s postarrest
procedural statute makes defendant’s arrest unlawful when it would
otherwise be completely lawful. In other words, we must consider
whether a violation of Indiana statutory law, particularly Ind. Code
Ann. §35–33–3–2 (Michie 1998), mandates the exclusion of evidence
in Illinois.
We do not believe that the violation of Ind. Code Ann.
§35–33–3–2 (Michie 1998) mandates the exclusion of the evidence
arrayed against defendant. First, the statutory language itself does not
mandate exclusion or even mention it. People v. Jones, 223 Ill. 2d
569, 580-81 (2006) (“The fundamental rule of statutory construction
is to ascertain and give effect to the legislature’s intent. [Citation.] ***
The best indication of legislative intent is the statutory language, given
its plain and ordinary meaning”). Next, the Indiana statute, under the
facts of this case, does not involve a fundamental right of defendant.
Ind. Code Ann. §35–33–3–2 (Michie 1998) appears to have two
main purposes. First, the statute provides an arrestee with a probable
cause hearing in Indiana. The fact that defendant had the hearing in
Illinois rather than Indiana does not constitute a constitutional
violation, however. See Dentler, 742 N.W.2d at 89; Six Feathers, 611
-29-
P.2d at 862; Weaver, 29 Va. App. 487, 513 S.E.2d 423. Second, the
statute sets forth the initial step in the extradition process. Again, that
Chicago police ignored the extradition process in this case does not
constitute a constitutional violation. The Ker-Frisbie doctrine has
established that irregularities in the extradition of a fugitive from
justice for an otherwise constitutional prosecution “affects neither the
guilt nor innocence of the accused, nor the jurisdiction of the court to
try him.” Ker, 110 Ill. at 637, aff’d, 119 U.S. 436, 30 L. Ed. 421, 7 S.
Ct. 225; Frisbie, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509; Matta-
Ballesteros v. Henman, 896 F.2d 255, 260 (7th Cir. 1990) (“For the
past 100 years, the Supreme Court has consistently held that the
manner in which a defendant is brought to trial does not affect the
ability of the government to try him”). In addition to the above, we
note that to the extent that any fundamental rights are implicated by
Ind. Code Ann. §35–33–3–2 (LexisNexis 1998), they are not the
rights of defendant but the rights of Indiana. Dentler, 742 N.W.2d at
89; Ferrell, 218 Neb. at 468, 356 N.W.2d at 872; see also Rakas v.
Illinois, 439 U.S. 128, 148, 58 L. Ed. 2d 387, 404, 99 S. Ct. 421, 433
(1978) (a party generally may not vicariously asserts the rights of
another when seeking to invoke the exclusionary rule); Alderman v.
United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 187, 89 S. Ct.
961, 966-67 (1969) (same).
Considering the exclusionary rule itself, we note that the Supreme
Court has stated that “[s]uppression of evidence *** has always been
our last resort, not our first impulse,” and applied the rule only where
its deterrence benefits outweigh its substantial societal costs. 1 Hudson,
1
In discussing the exclusionary rule, we feel it worth mentioning that
apart from his reference to Sadvari, 561 Pa. 588, 752 A.2d 393, defendant
advances little substantive argument regarding the application of the
exclusionary rule. Defendant does advance an argument concerning the good-
faith doctrine and its application in situations where police are operating
without a warrant. As we discussed when considering defendant’s procedural
arguments, however, the State is not advocating the application of the good-
faith exception to the exclusionary rule. Rather, the State merely discusses
the good faith of the Chicago police officers involved in this case in order to
show that the exclusionary rule should never even apply. Accordingly,
defendant’s argument on this point does not address the State’s position or
-30-
547 U.S. at 591, 165 L. Ed. 2d at 64, 126 S. Ct. at 2163. This court,
in discussing the rule, has stated:
“[T]he exclusionary rule that accompanies the fourth
amendment has no constitutional footing. Instead, it is a
judicially created, prudential remedy that prospectively
protects fourth amendment rights by deterring future police
misconduct [Citations.] Its application has been trimmed to
instances where its remedial objectives will be most effectively
served. [Citation.] That is, it applies only where its deterrent
benefits outweigh its substantial social costs.” Willis, 215 Ill.
2d at 531-32.
Indeed, we have recognized that “[t]he State does not violate the
fourth amendment when it introduces evidence obtained in violation
of the fourth amendment. [Citation.] Rather, a fourth amendment
violation is ‘fully accomplished’ by the illegal search or seizure, and
excluding evidence cannot undo the invasion of the defendant’s
rights.” Willis, 215 Ill. 2d at 531. As such, in Willis this court refused
to apply the exclusionary rule in a situation where the fourth
amendment was actually violated. See Willis, 215 Ill. 2d 517. By
contrast, in this case, there was no constitutional violation and
exclusion is even less warranted. Sanchez-Llamas v. Oregon, 548
U.S. 331, ___, 165 L. Ed. 2d 557, 577, 126 S. Ct. 2669, 2681 (2006)
(statutory violations only remotely related to the gathering of evidence
do not ordinarily trigger application of the exclusionary rule).
The deterrence benefits/societal costs analysis supports this
position. Here, the Chicago police officers involved were not even
aware that they were in Indiana when they arrested defendant.
Accordingly, the arrest did not involve any police misconduct, willful
disregard for the laws of Indiana or its territorial borders, or false
representations of law designed to improperly obtain evidence.
Additionally, as the Iowa Supreme Court recognized in Dentler, the
benefits of violating another state’s statutory magistrate provision are
so small, any incentive for future violations is low. Dentler, 742
N.W.2d at 90. While applying the exclusionary rule under the facts of
this case would thus have little deterrent effect, it would have
affect our analysis.
-31-
significant societal costs, as the State has already acknowledged that
without the evidence against defendant, its case against him would be
substantially impaired. As we have stated in the past, the exclusionary
rule laudably secures constitutional rights through its deterrent effect
but “also deflects criminal trials from their basic focus by erecting
barriers between the jury and truthful, probative evidence.” Willis, 215
Ill. 2d at 532. Moreover, the Supreme Court has recognized the same,
pointing out that its cases have “consistently recognized that
unbending application of the exclusionary sanction to enforce ideals
of governmental rectitude would impede unacceptably the truth-
finding functions of judge and jury.” United States v. Payner, 447
U.S. 727, 734, 65 L. Ed. 2d 468, 476, 100 S. Ct. 2439, 2445 (1980).
While we choose not to apply the exclusionary rule in this case,
we could elect to utilize it based upon principles of comity. Sadvari,
561 Pa. at 598-99, 752 A.2d at 398-99 (“We find, however, that the
Delaware statute, with its directive that an out-of-state officer present
the arrestee to a Delaware judicial tribunal for review of the
lawfulness of an arrest conducted in Delaware, functions as more than
merely an extradition statute, and that a contrary interpretation would
render empty the mandate of the Delaware law. *** In this instance,
application of the exclusionary rule will serve primarily as a
demonstration of comity to vindicate Delaware’s sovereignty in light
of Pennsylvania’s incursion upon this important state interest”). Not
only has this court long adhered to the Ker-Frisbie doctrine, however,
but so has the Indiana Supreme Court. In fact, in Massey v. Indiana,
the Indiana Supreme Court specifically cited both Ker and Frisbie and
stated that “[a] trial court’s jurisdiction does not depend upon the
legality of [defendant’s] arrest or return to the wanting state.” Massey,
267 Ind. at 507, 371 N.E.2d at 705. Accordingly, we do not believe
principles of comity require the application of the exclusionary rule in
this case. Moreover, in light of its long adherence to the Ker-Frisbie
doctrine, we believe it unlikely that the Indiana Supreme Court would
find any differently were it faced with this situation in reverse.
With this opinion, we reaffirm our adherence to the Ker-Frisbie
doctrine. Ker, 110 Ill. at 637, aff’d, 119 U.S. 436, 30 L. Ed. 421, 7 S.
Ct. 225; Frisbie, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509. This is
not to say, however, that Illinois courts may completely ignore
another state’s statutory scheme providing postarrest procedures for
-32-
defendants who committed crimes within Illinois’ borders. To the
contrary, in such situations courts should inquire into the facts of each
case as well as the extraterritorial statutory provisions at issue.
Indeed, that is exactly what we have done in this case. Based upon the
particular facts and statutory provisions at issue in this case, then, we
will not apply the exclusionary rule. We feel it important to point out,
however, that law enforcement officials should not consider it a
certainty that we will find the exclusionary rule inappropriate under a
different set of facts, particularly in situations involving willful
misconduct. Dentler, 742 N.W.2d at 90.
CONCLUSION
We reverse the judgment of the appellate court affirming the
decision of the trial court. We thus reinstate the trial court’s original
determination that defendant’s motion to quash and suppress be
denied and remand the cause to the circuit court for trial.
Reversed and remanded.
JUSTICE BURKE, specially concurring:
While the majority correctly reverses the judgment of the appellate
court, it omits any discussion of the appellate court’s reasoning and
fails to explain why that reasoning was in error. I write separately to
do so.
The appellate court provided a straightforward analysis in support
of its decision to affirm the circuit court’s granting of defendant’s
motion to suppress. At the outset, the appellate court noted that there
was no dispute in this case that the Chicago police officers who
arrested defendant in Indiana were in fresh pursuit when they crossed
the state line. The appellate court further noted that section
35–33–3–1 of Indiana’s fresh pursuit statute (Ind. Code Ann.
§35–33–3–1 (Michie 1998)) provides the statutory authority for an
out-of-state officer to effect an arrest in Indiana when the officer is in
fresh pursuit. Section 35–33–3–1 states:
“Any member of a duly organized state, county or
municipal peace unit of another state who enters this state in
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fresh pursuit, and continues within [Indiana] in such fresh
pursuit of a person in order to arrest him on ground that he is
believed to have committed a felony in the other state, shall
have the same authority to arrest and hold such person in
custody as has any law enforcement officer of this state to
arrest and hold in custody a person on the ground that he is
believed to have committed a felony in this state.” Ind. Code
Ann. §35–33–3–1 (Michie 1998).
The appellate court then observed, however, that the Chicago
officers, in violation of section 35–33–3–2 of the Indiana statute (Ind.
Code Ann. §35–33–3–2 (Michie 1998)), failed to bring defendant
before an Indiana judge before returning him to Illinois. Section
35–33–3–2 provides:
“If an arrest is made in this state by an officer of another
state in accordance with the provisions of section 1 of this
chapter, he shall, without unnecessary delay, take the person
arrested before a judge of the county in which the arrest was
made. The judge shall conduct a hearing for the purpose of
determining the lawfulness of the arrest. If the judge
determines that the arrest was lawful, he shall commit the
person arrested to await for a reasonable time the issuance of
an extradition warrant by the governor of this state. If the
judge determines that the arrest was unlawful, he shall
discharge the person arrested.” Ind. Code Ann. §35–33–3–2
(Michie 1998).
The appellate court concluded, as a matter of statutory interpretation,
that the police officers’ failure to comply with the presentment
requirements of section 35–33–3–2 rendered defendant’s arrest
statutorily invalid. The court explained:
“Chicago police officers had no inherent authority to effect an
arrest in Indiana; rather, the Chicago police officers’ authority
to make an arrest in Indiana was derived from Indiana’s fresh
pursuit statute and the authority provided by the Indiana
statute is conditioned by the requirement that an accused shall
be brought before an Indiana judge for a determination of the
lawfulness of the arrest. Accordingly, under the rationale of
People v. Jacobs, 67 Ill. App. 3d 447, which we endorse,
-34-
defendant’s arrest was unlawful.” (Emphasis added.) 367 Ill.
App. 3d at 881.
According to the appellate court, the presentment requirement in
section 35–33–3–2 was a condition precedent to the authority granted
in section 35–33–3–1. The failure to comply with the presentment
requirement meant that the officers had no statutory authority to
arrest defendant.
The appellate court then pointed to this court’s decision in People
v. Carrera, 203 Ill. 2d 1, 11-12 (2002), which holds that a police
officer’s right to arrest a person outside his jurisdiction is no greater
than that of a private citizen and “that the exclusionary rule is
applicable where the police effectuate an extraterritorial arrest without
appropriate statutory authority.” See also, e.g., Commonwealth v.
Savage, 430 Mass. 341, 719 N.E.2d 473 (1999) (invoking the
exclusionary rule when an out-of-state officer effected an
extraterritorial arrest without statutory or common law authority).
Because the appellate court had determined that defendant’s arrest
was made without statutory authority, the court applied the rule of
Carrera and affirmed the circuit court’s grant of defendant’s motion
to suppress.
In my view, the appellate court erred in its reading of the Indiana
fresh-pursuit statute and in its conclusion that defendant’s arrest was
statutorily unauthorized. It is a well-settled rule that we may not
depart from the plain language of a statute by reading into it
exceptions, limitations, or conditions. People v. Martinez, 184 Ill. 2d
547, 550 (1998). Nothing in the Indiana fresh-pursuit statute states
that the presentment requirement of section 35–33–3–2 conditions the
authority to arrest provided in section 35–33–3–1. Nor does the
statute state that the failure to present a defendant before an Indiana
judge negates the authority to arrest a defendant in fresh pursuit. The
presentment requirement is a procedure to be followed after a
statutorily authorized arrest has been made. See, e.g., State v. Ferrell,
218 Neb. 463, 356 N.W.2d 868 (1984); see also People v. Junco, 70
Misc. 2d 73, 333 N.Y.S.2d 142 (NY. Sup. Ct. 1972) (describing the
condition-precedent argument as an “exotic assertion” that would
impose absolute liability on all inadvertent violations of the
presentment requirement), aff’d, People v. Walls, 35 N.Y.2d 419, 321
N.E.2d 875, 363 N.Y.S.2d 82 (1974).
-35-
Of course, having determined that the Chicago police officers
were authorized to arrest defendant, there still remains the entirely
separate question as to whether the exclusionary rule should be
applied when police officers inadvertently fail to comply with the
presentment requirement of section 35–33–3–2. For the reasons stated
by the majority (see slip op. at 27-32), I agree that it should not.
Accordingly, I join in the judgment of the majority.
JUSTICE FREEMAN, dissenting:
Unlike the majority, I believe that this case presents a
straightforward question of statutory construction. After examining
the plain language of the Indiana fresh pursuit statute, the comments
of the drafters, and the relevant precedent, I believe that the lower
courts correctly held that application of the exclusionary rule is
appropriate in the matter before us. I therefore dissent.
Indiana has enacted a statutory scheme that sets forth procedures
to be followed when out-of-state law enforcement officers, who are
in “fresh pursuit” of a suspect, arrest that person in Indiana. Ind. Code
Ann. §§35–33–3–1 through 35–33–3–5 (Michie 1998). As a prefatory
note, this statutory scheme abrogated the common law principles
relating to extraterritorial arrests. At common law, a limited exception
developed to the general rule confining the authority of an officer to
a geographic area which allowed an officer who is in “fresh pursuit”
of a suspected felon to make a legally binding arrest in a territorial
jurisdiction other than the one in which he has been appointed to act.
People v. Clark, 46 Ill. App. 3d 240, 242 (1977). The “critical
elements” that characterized a “fresh pursuit” under common law
were its “continuity and immediacy,” and the term “fresh pursuit”
connoted “something more than mere casual following.” 5 Am. Jur.
2d Arrest §72, at 720 (2001), see also N. Lopuszynski, Father
Constitution, Tell the Police to Stay on Their Own Side: Can Extra-
jurisdictional Arrests Made in Direct Violation of State Law Ever
Cross the Fourth Amendment “Reasonableness” Line?, 53 DePaul L.
Rev. 1347, 1358-59 (Spring 2004) (the focus is upon the “immediacy
and continuousness of the pursuit”). Given that the Indiana legislature
has enacted specific legislation to deal with extraterritorial fresh
pursuit arrests within its borders, the question presented is two-fold:
What does the Indiana statute require and what happens when those
-36-
requirements are not met? Accordingly, the analysis begins with an
examination of the language of the statute.
In construing the meaning of a statute, the court’s primary
objective is to ascertain and give effect to the intent of the drafters
(Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
503-04 (2000)), the best indicator being the statute’s language (Yang
v. City of Chicago, 195 Ill. 2d 96, 103 (2001)). The statutory
language must be afforded its plain and ordinary meaning (In re
Detention of Lieberman, 201 Ill. 2d 300, 308 (2002)), and, where the
language is clear and unambiguous, we must apply the statute without
resort to further aids of statutory construction (In re D.S., 217 Ill. 2d
306, 313 (2005)). We will not depart from the plain language of a
statute by reading into it exceptions, limitations or conditions that
conflict with the express legislative intent. Petersen v. Wallach, 198
Ill. 2d 439, 446 (2002). Moreover, this court is bound to give meaning
and effect to all the provisions of a statute, and the court must
construe a statute so that no word, clause or sentence, to the extent
that it is possible to do so, is rendered superfluous or meaningless.
Huskey v. Board of Managers of Condominiums of Edelweiss, Inc.,
297 Ill. App. 3d 292, 295 (1998); Walker v. Alton Memorial Hospital
Ass’n, 91 Ill. App. 3d 310 (1980). In construing a statute, we presume
that the enacting body did not intend absurdity, inconvenience or
injustice. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 40
(2001). In addition, we view all provisions of an enactment as a
whole. In re Donald A.G., 221 Ill. 2d 234, 246 (2006). Accordingly,
words and phrases must be interpreted in light of other relevant
provisions of the statute and must not be construed in isolation.
Michigan Avenue National Bank, 191 Ill. 2d at 504.
Section 35–33–3–1 of Indiana’s statute bestows limited authority
upon the police officer of another state to arrest an individual in
Indiana, and specifically sets forth the circumstances under which a
non-Indiana officer may enter that state and make an arrest:
“Any member of a duly organized state, county or
municipal peace unit of another state who enters this state in
fresh pursuit, and continues within [Indiana] in such fresh
pursuit of a person in order to arrest him on ground that he is
believed to have committed a felony in the other state, shall
have the same authority to arrest and hold such person in
-37-
custody as has any law enforcement officer of this state to
arrest and hold in custody a person on the ground that he is
believed to have committed a felony in this state.” Ind. Code
Ann. §35–33–3–1 (Michie 1998).
The plain language of section 35–33–3–1 reveals that the Indiana
statute provides authority to an out-of-state law enforcement officer
to make an arrest in Indiana, so long as that officer enters Indiana in
“fresh pursuit” of that suspect. The statute defines “fresh pursuit” in
three ways: as it was “defined by the common law,” as “the pursuit of
a person who has committed a felony or who reasonably is suspected
of having committed a felony,” or “the pursuit of a person suspected
of having committed a supposed felony, though no felony actually has
been committed, if there is reasonable ground for believing that a
felony has been committed.” Ind. Code Ann. §35–33–3–5 (Michie
1998). The statute further instructs that “[f]resh pursuit shall not
necessarily imply instant pursuit, but pursuit without unreasonable
delay.”2 Ind. Code Ann. §35–33–3–5 (Michie 1998).
2
I note that in the circuit court, defendant raised in his motion to vacate
the denial of his motion to suppress the argument that, based upon the
testimony of Officer Luce, “prior to the defendant’s arrest at the [Indiana]
toll booth the police officers rejected multiple convenient opportunities to
arrest the defendant” while he was still in Illinois, and that the “officers
themselves chose both the time and place to arrest defendant.” The circuit
court, however, did not have occasion to address defendant’s contention that
the officers were not engaged in “fresh pursuit” of him in its factual findings,
as the State conceded in the trial court that the arrest took place in Indiana
and the Chicago officers did not follow the mandates of the Indiana statute.
Having prevailed on the suppression motion in the circuit court, defendant
has not pursued this argument on appeal. Although I do not express an
opinion as to the merits of defendant’s argument with respect to whether the
Chicago officers were actually in “fresh pursuit” of him at the time the arrest
was made, I do note that a review of Officer Luce’s testimony at the
suppression hearing indicates that the officers may have had ample
opportunity to stop defendant in Illinois, including when defendant parked for
a minute at the side of the road near the Burley Avenue address and also
after he made what Luce described as an “illegal” U-turn in that same area.
It would have been interesting to see how the Indiana court would have ruled
on this argument, had the officers complied with the statute and the Indiana
-38-
Thus, the Indiana law carves out a limited, statutory exception to
the common law general rule that a police officer acting within his
official capacity cannot make a warrantless arrest outside the
territorial limits of the jurisdiction from which his authority is derived.
See, e.g., Kindred v. Stitt, 51 Ill. 401, 409 (1869) (at common law,
municipal peace officers had no authority to make a warrantless arrest
outside of the political entity in which they held office); 2 W. La Fave,
J. Israel, N. King & O. Kerr, Criminal Procedure §3.5, at 203 (3d ed.
2007), citing People v. Lahr, 147 Ill. 2d 379 (1992). In other words,
the authority of an out-of-state officer to make an extraterritorial
arrest in Indiana is gained only through the grace of Indiana through
operation of its statute.
The Indiana statute additionally departs from common law by
setting forth with specificity not only the steps that must be taken by
an out-of-state police officer after he makes an arrest within Indiana,
but also those which must subsequently be taken by the Indiana court.
Section 35–33–3–2 provides:
“If an arrest is made in [Indiana] by an officer of another
state in accordance with the provisions of section 1 of this
chapter, he shall, without unnecessary delay, take the person
arrested before a judge of the county in which the arrest was
made. The judge shall conduct a hearing for the purpose of
determining the lawfulness of the arrest. If the judge
determines that the arrest was lawful, he shall commit the
person arrested to await for a reasonable time the issuance of
an extradition warrant by the governor of [Indiana]. If the
judge determines that the arrest was unlawful, he shall
discharge the person arrested.” (Emphasis added.) Ind. Code
Ann. §35–33–3–2 (Michie 1998).
Thus, the Indiana legislature conditioned an out-of-state officer’s
authority to make an extraterritorial arrest in Indiana upon the
officer’s compliance with the dictate that the officer “shall, without
unnecessary delay, take the person arrested before a judge of the
county in which the arrest was made.” (Emphasis added.) Ind. Code
Ann. §35–33–3–2 (Michie 1998). The use of the word “shall”
court had the opportunity to hear the case.
-39-
generally indicates a mandatory requirement. See, e.g., Village of
Winfield v. Illinois State Labor Relations Board, 176 Ill. 2d 54, 64
(1997). The Indiana statute in no uncertain terms requires the out-of-
state officer to take the arrestee before an Indiana judge as soon as
possible after the arrest. Once that person is brought before the judge,
the statute further requires the judge to conduct a hearing “for the
purpose of determining the lawfulness of the arrest.” Ind. Code Ann.
§35–33–3–2 (Michie 1998). The statute then specifies two subsequent
options, based upon the outcome of the judicial hearing. If the judge
determines that the arrest was lawful, the judge is required to “commit
the person arrested to await for a reasonable time the issuance of an
extradition warrant by the governor of [Indiana].” Ind. Code Ann.
§35–33–3–2 (Michie 1998). If, however, the judge determines that the
extraterritorial arrest was unlawful, the statute requires that the judge
“shall discharge the person arrested.” Ind. Code Ann. §35–33–3–2
(Michie 1998).
Under the plain language of the Indiana statute, the question of
whether the officer has made the arrest in fresh pursuit is only the
threshold inquiry. The arrest is dependent upon the subjective belief
of the arresting officer that there is probable cause that the person
committed a criminal offense. The officer’s subjective belief is then
tested when the facts and circumstances of the encounter are
presented to an objective, neutral magistrate. It is only when this
magistrate determines that the arrest is lawful that the extraterritorial
arrest is deemed complete. This “presentment requirement” is a
statutory procedure that did not exist at common law. The
requirement advances several important interests. It promotes comity
and ensures that the sovereignty of the state entered into by outside
officers is preserved; it protects the rights of a person who has been
subject to an extraterritorial arrest; and it encourages future
compliance with the statutory provisions. Thus, the presentment
requirement is an important component of a statutory scheme
designed to balance the interests of law enforcement with the rights of
the arrestee. It is only by giving meaning to all provisions of the fresh
pursuit statute that this balance can be achieved. This interpretation of
Indiana’s fresh pursuit statute ensures that no provision is rendered
superfluous.
-40-
My reading of the Indiana statute is supported by an examination
of the intent of the drafters of the Uniform Act on Fresh Pursuit of
Criminals Across State Lines (Uniform Act), from which the Indiana
statute was derived.3 The Uniform Act was drafted in the mid-1930s
by the Interstate Commission on Crime, with the purpose to “prevent
criminals from utilizing state lines to handicap police in their
apprehension.” Council of State Governments, The Handbook on
Interstate Crime Control 147 (1978). In order to advance this goal,
the Uniform Act addressed the realities faced by law enforcement
officers engaging in the fresh pursuit of suspects across state lines:
“In the foreign state, the pursuing officer from the State where
the crime is committed is, in general, no longer an officer. This
*** is remedied in a simple manner by this act. Thereunder,
the moment an officer in fresh pursuit of a criminal crosses a
state line, the state he enters will authorize him to catch and
arrest such criminal within its bounds. The statute grants this
right only when the officer is in fresh pursuit of a criminal, that
is, pursuit without unreasonable delay, by a member of a duly
organized peace unit, and only in cases of felonies or supposed
felonies occurring outside the boundaries of the state adopting
the act. It is thus based upon the little-known common-law
doctrine of fresh pursuit, from which the statute has derived
its name.” Council of State Governments, The Handbook on
Interstate Crime Control 147 (1978).
The drafters of the Uniform Act thus believed that the Act would be
of benefit to police officers, because although it was “declaratory of
the common law,” it also clearly informed the officers “of their right
to cross a state boundary and make an arrest in fresh pursuit.” Council
of State Governments, The Handbook on Interstate Crime Control
147 (1978).
3
I note that Illinois also has a “fresh pursuit” statute which is derived
from the Uniform Act and which, like Indiana’s statute, allows an out-of-
state law enforcement officer who is in fresh pursuit of a suspect to arrest
that person in Illinois as long as the officer “without unnecessary delay
takes[s] the person arrested before the circuit court of the county in which the
arrest was made” so that the court can “conduct a hearing for the purpose of
determining the lawfulness of the arrest.” 725 ILCS 5/107–4 (West 2006).
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The Uniform Act, however, was also intended to be of similar
benefit to the person arrested under its provisions. The drafters noted
that the Act “protects the rights of the person taken into custody, by
providing that he shall without unnecessary delay be given a hearing
before a magistrate, and requires his extradition if the arrest was
lawful.” Council of State Governments, The Handbook on Interstate
Crime Control 150 (1978). In other words, in the Uniform Act
“[s]imple provisions are made to safeguard the rights of the arrested
person and to provide for his return to the state where he committed
the crime.” Council of State Governments, The Handbook on
Interstate Crime Control 147 (1978). Thus, it is apparent that the
drafters of the Uniform Act intended to delicately balance the
competing interests of law enforcement in allowing extraterritorial
arrests with the rights of the state in which the arrest occurred and the
rights of the person taken into custody. Accordingly, based upon a
straightforward interpretation of the Indiana fresh pursuit statute, it is
my conclusion that because the Chicago officers failed to comply with
that statute’s provisions, defendant’s extraterritorial arrest was made
without statutory authorization.
The majority, however, not only fails to construe Indiana’s fresh
pursuit statute, but also fails to answer the question of whether
defendant’s arrest was unauthorized due to the Chicago officers’
noncompliance with the Indiana statute. Instead, the majority skips
over this necessary analysis and concludes that the exclusionary rule
is not an appropriate remedy for the officers’ noncompliance with the
fresh pursuit statute. The majority’s treatment of the issue renders the
presentment provisions of the Indiana statute superfluous and a
nullity. It is only when the Indiana statutory scheme is properly
understood that the importance of the need for the application of the
exclusionary rule for its violation becomes apparent.
Like the majority and the special concurrence, I acknowledge that
the Indiana statute on fresh pursuit is silent as to the remedy for its
violation. However, this question has been addressed by courts in
other jurisdictions. Some courts have been unwilling to invoke the
exclusionary rule as a remedy to an unlawful extraterritorial arrest.
See, e.g., State v. Dentler, 742 N.W.2d 84 (Iowa 2007); State v.
Ferrell, 218 Neb. 463, 468, 356 N.W.2d 868, 871 (1984). Other
courts, however, have found that the exclusionary rule is the
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appropriate remedy to apply. See, e.g., United States v. Holmes, 380
A.2d 598 (D.C. App. 1977); Commonwealth v. Savage, 430 Mass.
341, 719 N.E.2d 473 (1999); Commonwealth v. Sadvari, 561 Pa. 588,
752 A.2d 393 (2000). The leading case adopting this latter position is
the Pennsylvania Supreme Court’s decision in Sadvari, which I find
to be persuasive.
In Sadvari, two Pennsylvania state troopers, while on patrol near
the Pennsylvania-Delaware border, observed a vehicle driven by the
defendant, a Delaware resident, which was speeding. The troopers
pursued the vehicle and, shortly after crossing into Delaware, they
activated their emergency lights and stopped the defendant
approximately four-tenths of a mile inside the State of Delaware.
Sadvari, 561 Pa. at 590, 752 A.2d at 394. Subsequently, the
defendant was asked to perform field sobriety tests, which he failed.
He was then arrested for drunk driving by the Pennsylvania officers
and was transported to a Pennsylvania hospital where blood samples
were drawn for chemical testing. Sadvari, 561 Pa. at 591, 752 A.2d
at 394.
Prior to trial, Sadvari moved to suppress evidence related to the
traffic stop as the product of an unlawful arrest. According to the
defendant, his arrest was unlawful because it was not conducted in
accordance with Delaware’s fresh pursuit statute. The trial court
found that the Pennsylvania officers had probable cause to stop
Sadvari and that the Delaware statute granted them authority to enter
Delaware while in fresh pursuit and conduct an arrest. Sadvari, 561
Pa. at 591, 752 A.2d at 395. While the trial court agreed that, under
the relevant provisions of the Delaware statute, the defendant should
have been taken before a Delaware judge, it viewed this requirement
simply as an extradition provision and denied Sadvari’s suppression
motion. Sadvari, 561 Pa. at 593, 752 A.2d at 396. The Pennsylvania
appellate court affirmed. Sadvari, 561 Pa. at 593, 752 A.2d at 396.
The Pennsylvania Supreme Court reversed. That court first noted
that, as is the case with the Indiana statute in the instant appeal, the
Delaware statute also derived from the Uniform Act on the Fresh
Pursuit of Criminals Across State Lines. Sadvari, 561 Pa. at 598, 752
A.2d at 398. The court held that the trial court’s conclusion that the
Delaware statute did not require a justice of the peace to determine
whether the arresting officer complied with the Delaware statute was
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in error. The Delaware statute–as does the Indiana statute in the case
before us–plainly required the justice of the peace to “determine the
lawfulness of the arrest,” and the court observed that there was no
authority for a uniformed Pennsylvania trooper in a marked police
cruiser to effectuate an extraterritorial arrest in Delaware other than
the Delaware fresh pursuit statute. Sadvari, 561 Pa. at 598, 752 A.2d
at 398. Accordingly, to comply with the mandate of the statute to
evaluate the lawfulness of an arrest, a Delaware tribunal was required
to assess the arresting officers’ compliance with the statute. However,
because the officers did not comply with the condition imposed upon
their authority under the Delaware statute–which required them to
bring Sadvari before a Delaware justice of the peace–the court found
the arrest to be illegal. Sadvari, 561 Pa. at 598, 752 A.2d at 398.
The Sadvari court then considered the appropriate remedy for the
statutory violation and concluded that suppression of the evidence
obtained as a result of the unlawful arrest was warranted. The court
conceded that not every violation of a statute or rule requires
suppression. On the one hand, the court observed that it could be
argued that the Delaware statute merely duplicated the framework
provided by Pennsylvania law and its procedural rules for safeguarding
a defendant’s constitutional rights; therefore, in individual cases a
remedy as exacting as suppression should not be deemed necessary.
The court found, however, that the Delaware statute, with its directive
that an out-of-state officer present the arrestee to a Delaware judicial
tribunal for review of the lawfulness of an arrest conducted in
Delaware, “functions as more than merely an extradition statute, and
that a contrary interpretation would render empty the mandate of the
Delaware law.” Sadvari, 561 Pa. at 598, 752 A.2d at 398-99. The
court noted that under its prior state jurisprudence, the exclusionary
rule had previously been employed to ensure the orderly
administration of justice where a police officer acted without
authority, even in cases in which constitutional rights were not at the
forefront. In this instance, the court determined that application of the
exclusionary rule served several different and important interests: “as
a demonstration of comity to vindicate Delaware’s sovereignty in light
of Pennsylvania’s incursion upon this important state interest,” as a
means “to encourage future compliance with Delaware’s procedures,”
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and also to “safeguard the individual right to be free of unlawful
seizures.” Sadvari, 561 Pa. at 598-99, 752 A.2d at 399.
As stated, I find the Pennsylvania Supreme Court’s reasoning and
holding in Sadvari to be persuasive. Its analysis most closely mirrors
the intent of the drafters of the Uniform Act and is true to the
language of the statute by giving each provision meaning. The Sadvari
decision also highlights the several important interests that are affected
by operation of the fresh pursuit statute: a demonstration of comity to
vindicate the sovereignty of the state that has experienced the
incursion of out-of-state officers; encouragement of future compliance
with the provisions of the statute; and the protection of a defendant’s
rights to due process and to be free from unlawful seizures. It is my
view that Sadvari appropriately balances these important interests
against the similarly important interest in furthering legitimate law
enforcement objectives in allowing extraterritorial arrests, and arrives
at the correct result.
However, although Sadvari is factually analogous to the matter
before us, and is relied upon by defendant in his arguments to this
court and by the appellate court in its opinion below, neither the
majority nor the special concurrence discuss why Sadvari is not
persuasive. Instead, the majority states that it finds the analysis in
Dentler “particularly instructive” (slip op. at 27), and the special
concurrence joins in this assessment. I note, however, that Dentler is
factually distinguishable from the matter at bar, and that this factual
difference played a significant role in that court’s analysis as to
whether the exclusionary rule should be applied. In Dentler, Iowa
police officers pursued the defendant into Missouri, but, while in
pursuit, also notified the Missouri authorities and requested their
assistance in apprehending the suspect. Two Missouri law
enforcement officers came to the scene of the arrest and engaged in a
discussion with the Iowa officers as to which jurisdiction would retain
the defendant. According to the court’s opinion, “The Missouri
deputies advised [the Iowa officers], ‘Well you can keep
[defendant].’ ” Dentler, 742 N.W.2d at 86. In addition, the court
noted that it was undisputed that Dentler was thereafter promptly
taken before an Iowa judge. In holding that the exclusionary rule was
not an appropriate remedy under the facts presented, the Dentler
court noted that “it [was] undisputed that the Missouri officers on the
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scene acquiesced to the action. While such acquiescence by state law
enforcement officials may not give rise to waiver or estoppel as a
matter of law, it is a factor that militates against the need for
application of the exclusionary rule.” Dentler, 742 N.W.2d at 89. The
facts in Dentler are inapposite to those at bar. In the matter before us,
the Chicago officers made no contact with Indiana law enforcement
officials during the arrest of defendant on Indiana soil. In addition, I
note that rather than taking defendant before an Indiana magistrate, as
required under the provisions of the statute, the Chicago officers
instead transported defendant back across the state line to Illinois, and
then took him to his mother’s residence on Burley Avenue. The
officers thereupon conducted–according to their testimony–a
“consent” search of the home in conjunction with their narcotics
investigation of defendant. It was only after the officers conducted a
systematic search of these premises and discovered additional
evidence to be used in their prosecution of defendant that they
transported defendant to the police station and he was brought before
an Illinois magistrate. Accordingly, I find Dentler to be unpersuasive
for a number of reasons: it is factually distinguishable from the matter
at bar, and it does not speak to the intent of the drafters of the
Uniform Act, from which the statute at issue in that case was derived.
Further, and perhaps more importantly, support for my position is
found in our own, well-settled, state jurisprudence. Almost 30 years
ago, our appellate court in People v. Jacobs, 67 Ill. App. 3d 447
(1979), addressed a situation factually similar to the matter now
before us. In Jacobs, Illinois police officers in fresh pursuit of the
defendant arrested him inside the State of Iowa for his alleged
commission of robbery and murder. As in the present matter, the
Illinois police officers failed to comply with the presentment
provisions of Iowa’s fresh pursuit law. Jacobs held that the
extraterritorial arrest of defendant was illegal because the Illinois
officers “had no authority to arrest him in the State of Iowa except for
that authority granted to them by the Uniform Fresh Pursuit Law of
the State of Iowa.” Jacobs, 67 Ill. App. 3d at 449. The court held the
arrest to be illegal, and the defendant’s statements were suppressed as
the fruits of an illegal arrest. The court reasoned:
“The defendant was indeed illegally arrested since the
Illinois police officers had no authority to arrest him in the
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State of Iowa except for that authority granted to them by the
Uniform Fresh Pursuit Law of the State of Iowa. [Citations.]
***
***
*** [The statute] mandates that an out-of-State police
officer, after effecting an arrest, shall without unnecessary
delay take the person arrested before a magistrate of the
county in which the arrest was made, who shall conduct a
hearing for the purpose of determining the lawfulness of the
arrest. If the magistrate determines that the arrest was lawful,
he shall commit the person arrested to await for a reasonable
time the issuance of an extradition warrant by the governor.
[Citation.]
None of the mandates set forth in the Uniform Fresh
Pursuit Law of Iowa were complied with by the arresting
officers from Illinois. They were both blithely and summarily
ignored and the defendant immediately upon his return to
Illinois was subjected to intensive interrogation.” Jacobs, 67
Ill. App. 3d at 449-50.
I find the reasoning in Jacobs to be persuasive and note that this
case has been law in this state for nearly three decades. I also observe
that the failure of the officers in Jacobs to bring the defendant before
an Iowa magistrate immediately following his arrest allowed the
Illinois officers to return the defendant to Illinois and to conduct an
immediate and lengthy interrogation in which they were able to gather
additional evidence against the defendant prior to taking him before
an Illinois judge. This factual scenario mirrors that in the matter at bar,
where the officers returned defendant to Illinois and, rather than
taking him before an Illinois judge, first took a detour to the home of
defendant’s mother and engaged in a “consent” search of those
premises in an effort to gather additional evidence against defendant
prior to taking him before an Illinois judge.
I further note that the fact that it has been nearly three decades
since our courts have been presented with an issue similar to that in
Jacobs underscores that the reasoning and holding in that case offered
a workable and effective procedure to be followed by officers making
an extraterritorial, fresh pursuit arrest. To be blunt, to date, interstate
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extraterritorial arrests have not been a problem in Illinois. Clearly,
then, Jacobs has been well understood by law enforcement officers,
who have been cognizant of the state boundaries of their authority and
of the consequences of attempting to exercise that authority outside
the Illinois state line without complying with a sister state’s statutory
provisions. One thus could argue that society has already benefitted
(see slip op. at 31) in Illinois from the uniform, 30-year application of
the exclusionary rule to cases such as this. The court does not explain
how its result today provides additional societal benefit.
I note that, although factually not directly on point, this court in
People v. Carrera, 203 Ill. 2d 1 (2002), upheld the suppression of
evidence obtained by police during the course of an unlawful,
extraterritorial arrest. In Carrera, Chicago police officers arrested the
defendant in Franklin Park, Illinois, relying upon an Illinois statute that
permitted intrastate extraterritorial arrests but which was, subsequent
to the defendant’s arrest, held to be unconstitutional on the basis that
it was part of a public act that was passed in violation of the single-
subject rule. In holding that defendant’s suppression motion had been
properly granted, this court first looked to its prior decision in People
v. Lahr, 147 Ill. 2d 379 (1992), wherein the court suppressed
evidence obtained during the course of an extraterritorial arrest.
Carrera then held that the statute upon which the police relied to
effect the arrest was void ab initio due to its inclusion in a public act
that was found to violate the single-subject rule, and, therefore, the
police had no statutory authority to arrest the defendant. This court
concluded that “Illinois law is settled that the exclusionary rule is
applicable where the police effectuate an extraterritorial arrest without
appropriate statutory authority.” Carrera, 203 Ill. 2d at 11.
In support of its holding that defendant’s arrest should not be
quashed nor the evidence against him suppressed, the majority
engages in a quick and summary disposal of defendant’s reliance upon
Jacobs, Lahr, and Carrera. The majority states that the “cases
defendant cites do not settle this case as a matter of law” (emphasis
added) (slip op. at 25), but then attempts to factually distinguish the
cases from that at bar. With respect to Carrera the opinion states:
“In Carrera, the defendant was arrested by police officers
utilizing a statute that was later declared void ab initio.
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[Citation.] Accordingly, this court held that the defendant’s
arrest was unlawful.” Slip op. at 25.
This is the sum and substance of the majority’s factual distinction of
Carrera from the matter at bar. I believe that this is a distinction
which fails. The fact that the statute at issue in Carrera was void ab
initio was not what animated this court to hold that “Illinois law is
settled that the exclusionary rule is applicable where the police
effectuate an extraterritorial arrest without appropriate statutory
authority.” Rather, this court relied on its prior decision in Lahr,
which had already established this proposition. In addition, it was the
fact that the officers were acting without legal authority–just as
alleged in the case at bar–that controlled the result in Carrera.
In sum, courts of this state have long used the exclusionary rule to
protect the rights of defendants outside of the constitutional context.
To hold as the majority does today renders the provisions of Indiana’s
fresh pursuit statute a nullity. The majority fails to adhere to the
familiar tenets of statutory construction: it fails to afford plain
meaning to the language of the Indiana statute; it fails to adhere to the
intent of the drafters of the Uniform Act; it fails to afford appropriate
recognition to the principles of comity to vindicate Indiana’s
sovereignty; it fails to safeguard the protections intended to be
afforded to defendants by the statute; and it fails to follow our own
precedent. In rendering the provisions of the Indiana fresh pursuit
statute superfluous, the majority leaves the distinct impression that
Illinois law enforcement officers may freely disregard statutory limits
on their jurisdiction with no adverse consequences. In light of the fact
that Illinois has enacted a similar fresh pursuit statute, I question
whether out-of-state officers who make an extraterritorial arrest on
our own soil would feel compelled to comply with the provisions of
the Illinois statute after today’s decision. More importantly, would an
Indiana court feel compelled to follow the dictates of the Illinois
General Assembly, when this court so freely ignores the will of the
Indiana legislature?
For all the foregoing reasons, I cannot join the opinion of the
majority.
JUSTICE KILBRIDE joins in this dissent.
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