U.S. Residential Management and Development, LLC v. Head

FIFTH DIVISION
DECEMBER 18, 2009
No. 1-08-3531
U.S. RESIDENTIAL MANAGEMENT ) Appeal from the
AND DEVELOPMENT, LLC, as Property ) Circuit Court of
Manager for the Chicago Housing Authority, ) Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. 07 M1 225378
)
MICHAEL HEAD, )
)
Defendant-Appellee. ) Honorable
) Sheldon Garber,
) Judge Presiding.
JUSTICE TULLY delivered the opinion of the court:
Plaintiff U.S. Residential Management & Development, LLC, appeals from an order
granting defendant Michael Head’s combined motion to suppress and motion to dismiss in a
forcible entry and detainer action. On appeal, plaintiff asserts that the circuit court improperly
granted defendant’s motion to suppress the evidence of defendant’s drug-related criminal
conduct and motion to dismiss on the basis that the exclusionary rule should not apply to
plaintiff’s possessory action. For the reasons that follow, we reverse the judgment of the circuit
court and remand for further proceedings.
Background
On October 15, 2006, defendant was arrested in his rental residence at the Lathrop Homes
1-08-3531
public housing development for possessing cannabis in violation of section 550/4(d) of the
Cannabis Control Act. 720 ILCS 550/4(d) (West 2006). Plaintiff managed the premises on
behalf of the Chicago Housing Authority (CHA). Defendant’s lease with plaintiff required him
to refrain from engaging in any drug-related criminal activity on or off CHA premises and to
keep persons under his control from engaging in any criminal activity. The lease would be
terminated if there was any drug-related criminal activity on or off the premises by the resident,
any family member of the household, or a guest.
CHA and the Chicago police department (CPD) were parties to an intergovernmental
agreement. Pursuant to the agreement, CPD provided supplemental police services for CHA
properties, including: dedicated watches, increased foot patrols, customized policing strategies,
and the monitoring and prevention of gang and other illegal activities. In addition, CPD provided
statistics and relevant data, including reports of the activities of the assigned officers to CHA.
CPD and CHA also shared information through established procedures about public
housing residents who were arrested for committing drug-related crimes. Generally, CPD
provided case reports to CHA regarding arrests on CHA properties. CHA would then complete a
notice of arrest and send it to the property manager, in this case plaintiff. Plaintiff could then
serve the tenant with written notice of CHA’s decision to terminate the lease agreement. In
exchange for these services, CHA paid CPD up to $6 million per year.
On March 9, 2007, the State dropped the criminal charges against defendant. On August
14, 2007, CHA sent plaintiff notice of defendant’s arrest. Ten days later, on August 24, 2007,
plaintiff sent defendant notice of its decision to terminate the lease agreement. On September 7,
-2-
1-08-3531
2007, plaintiff filed its complaint against defendant for possession of the premises pursuant to
section 9–118 of the Forcible Entry and Detainer Act (735 ILCS 5/9–118 (West 2006)) (the Act).
On June 25, 2008, defendant filed his combined motion to suppress the evidence of his drug-
related criminal conduct under the exclusionary rule and motion to dismiss.
On December 8, 2008, the circuit court held that the evidence of defendant’s crime was
seized by the arresting officers in violation of the fourth amendment’s prohibition against
unreasonable searches and seizures. Plaintiff does not dispute this finding on appeal. In support
of its holding, the circuit court reasoned that the arresting officers conducted their search without
a warrant, lacked probable cause to search the premises because they were relying on information
provided by an informant whom they had never before seen and whose gender they could not
even remember, and that even if the officers had probable cause (which they did not), no exigent
circumstances justified the warrantless search.
Next, the circuit court found that the exclusionary rule barred the admission of the
illegally seized evidence. The circuit court held that the proceeding was quasi-criminal because
defendant was facing eviction for unlawful drug-related activity, plaintiff filed suit under section
9–118 of the Act (a statutory provision that applies only to criminal activity), and the proposed
sanction was harsh. Moreover, the circuit court reasoned that even if the forcible entry and
detainer action was a purely civil proceeding, the exclusionary rule may be extended to such
proceedings when its application would deter the police from committing future violations of the
fourth amendment. The circuit court reasoned that CPD and CHA followed an established
procedure for sharing information about public housing residents who were arrested for drug-
-3-
1-08-3531
related crimes, and that the two agencies were parties to a formal written contract that required
CPD to provide CHA with supplemental policing services designed to combat the very activity
for which defendant was arrested. The circuit court found that given the relationship between
CPD and CHA, suppressing the illegally seized evidence in this case would deter the police from
committing future fourth amendment violations. As such, the circuit court granted defendant’s
motion to suppress and dismissed the action with prejudice because plaintiff could not establish
defendant violated his lease agreement without the illegally seized evidence. This appeal was
timely filed.
On appeal, plaintiff contends that the circuit court improperly granted defendant’s motion
to suppress evidence, arguing that the exclusionary rule does not apply to plaintiff’s forcible
entry and detainer action. Plaintiff asserts that because this action is a purely civil proceeding,
and not a criminal or quasi-criminal proceeding, the circuit court improperly applied the
exclusionary rule. Plaintiff also asserts that the societal costs of excluding evidence of
defendant’s drug-related criminal conduct in this action greatly outweigh any minimal deterrent
benefit upon the police.
Analysis
In reviewing an appeal from a circuit court's ruling on a motion to suppress, we apply a
two-part standard of review. People v. Salinas, 383 Ill. App. 3d 481, 490 (2008). First, the
circuit court's factual findings are reviewed for clear error and will only be reversed if they are
against the manifest weight of the evidence. Salinas, 383 Ill. App. 3d at 490. Second, the circuit
court's ultimate decision as to whether suppression is warranted is reviewed de novo. Salinas,
-4-
1-08-3531
383 Ill. App. 3d at 490. In this case, neither party challenges any of the circuit court's factual
determinations. Accordingly, the sole issue before this court is plaintiff’s legal challenge to the
circuit court’s application of the exclusionary rule, which we review de novo.
The first issue on appeal is whether actions brought pursuant to the Forcible Entry and
Detainer Act constitute quasi-criminal proceedings. The Act “sets forth a mechanism for the
peaceful adjudication of possession rights in the trial court.” Circle Management, LLC v.
Olivier, 378 Ill. App. 3d 601, 608 (2007). “ ‘The distinct purpose of the forcible entry and
detainer proceeding is to determine only who should be in rightful possession.’ ” Circle
Management, LLC, 378 Ill. App. 3d at 609, quoting Miller v. Daley, 131 Ill. App. 3d 959, 961
(1985). In other words, “[a] forcible entry and detainer action is a limited proceeding, focusing
on the central issue of possession.” American National Bank v. Powell, 293 Ill. App. 3d 1033,
1044 (1997). “The only questions that are to be answered in such a proceeding concern which
party is entitled to immediate possession and whether a defense that is germane to the distinctive
purpose of the action defeats plaintiff's asserted right to possession.” Subway Restaurants, Inc. v.
Riggs, 297 Ill. App. 3d 284, 287 (1998). Our supreme court recognized that a forcible entry and
detainer action “is a civil proceeding to obtain restitution of premises of which the plaintiff is
unjustly deprived.” West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631, 637 (1934).
Under section 9–118 of the Act, the housing authority may initiate emergency housing
eviction proceedings against a tenant for possession of the premises if “there is direct evidence
of *** unlawful[ly] possessing *** cannabis *** within or upon the premises by or with the
knowledge and consent of, or in concert with the person or persons named in the complaint.”
-5-
1-08-3531
735 ILCS 5/9–118(b)(2)(A) (West 2006). Plaintiff’s complaint did not request a penalty, a
forfeiture of defendant’s personalty, or a fine from defendant, but instead only sought to invoke
its right under the Act to regain possession of the premises. As such, because the Act’s purpose
is to settle disputes about possession of real property – and not to punish defendant – we hold
that forcible entry and detainer actions are not quasi-criminal in nature.
In finding that plaintiff’s action was quasi-criminal, the circuit court reasoned that
defendant was facing eviction for unlawful drug-related activity, noting that the statute only
applied to criminal activity, and that the proposed sanction was harsh. While the circuit court did
not indicate its basis for finding this action to be quasi-criminal, defendant suggests that One
1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 14 L. Ed. 2d 170, 85 S. Ct. 1246 (1965),
supports the trial court’s finding. In One 1958 Plymouth Sedan, the Court reasoned that the
forfeiture action was quasi-criminal because its object was “to penalize [the defendant] for the
commission of an offense against the law”and because the threatened penalty was harsh. One
1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700-01, 14 L. Ed. 2d 170, 175, 85 S. Ct.
1246, 1251 (1965).
The present case is distinguishable from One 1958 Plymouth Sedan. Here, the focus of
the Act is not to punish defendant, but rather to set forth a mechanism for the peaceful
adjudication of possession rights in the circuit court. In addition, while defendant may be
subjected to a harsh consequence – losing his residence – this consequence does not transform
this civil proceeding into a quasi-criminal proceeding. When the Supreme Court denied
extending the exclusionary rule in Immigration and Naturalization Service v. Lopez-Mendoza,
-6-
1-08-3531
468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984), and in Pennsylvania Board of
Probation & Parole v. Scott, 524 U.S. 357, 141 L. Ed. 2d 344, 118 S. Ct. 2014 (1998), the
possible sanctions were deportation and incarceration, respectively. These sanctions, while
harsh, did not transform the civil proceedings into quasi-criminal proceedings. These sanctions
are also equally, if not more, harsh than losing one’s residence.
For the foregoing reasons, we reverse the circuit court’s finding that this proceeding is
quasi-criminal and find that actions brought pursuant to the Act are civil in nature.
The next issue is whether the exclusionary rule applies to suppress illegally seized
evidence in a civil forcible entry and detainer action. Under the exclusionary rule, “evidence
obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against
the victim of the illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347, 38 L.
Ed. 2d 561, 571, 94 S. Ct. 613, 619 (1974). “[T]he rule is a judicially created remedy designed
to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a
personal constitutional right of the party aggrieved.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at
571, 94 S. Ct. at 620. The Supreme Court has explained that “[d]espite its broad deterrent
purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized
evidence in all proceedings or against all persons.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at
571, 94 S. Ct. at 620. Instead, application of the exclusionary rule has been restricted to those
areas where the remedial objectives of deterring unlawful police conduct are “most efficaciously
served.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620.
Accordingly, the Supreme Court developed a balancing test to measure the appropriate
-7-
1-08-3531
use of the exclusionary rule. McCullough v. Knight, 293 Ill. App. 3d 591, 596 (1997). Under
this test, we must balance the likely benefits of excluding unlawfully seized evidence against the
likely costs. Lopez-Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787, 104 S. Ct. at 3484. On the
benefit side of the analysis is the deterrence of possible future unlawful police conduct. Lopez-
Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787, 104 S. Ct. at 3484. “On the cost side there is
the loss of often probative evidence and all of the secondary costs that flow from the less
accurate or more cumbersome adjudication that therefore occurs.” Lopez-Mendoza, 468 U.S. at
1041, 82 L. Ed. 2d at 787, 104 S. Ct. at 3485.
Our research has not disclosed any Supreme Court or Illinois cases which have
considered the application of the exclusionary rule in forcible entry and detainer actions. When
the Supreme Court has applied the exclusionary rule balancing test, it has refused to extend the
rule to various civil proceedings. In Calandra, 414 U.S 338, 38 L. Ed. 2d 561, 94 S. Ct. 613, the
Court forbade a witness from invoking the exclusionary rule in a grand jury proceeding. In
United States v. Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976), the Court refused
to apply the exclusionary rule to suppress evidence seized by the criminal law enforcement
officers of one sovereign (state police) in a civil proceeding of another sovereign (federal tax
assessment proceeding). In Lopez-Mendoza, 468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479,
the Court refused to extend the exclusionary rule to civil deportation hearings. In Pennsylvania
Board of Probation, 524 U.S. 357, 141 L. Ed. 2d 344, 118 S. Ct. 2014, the Court held that the
exclusionary rule did not apply in parole revocation hearings.
Illinois courts have applied the exclusionary rule balancing test and have similarly refused
-8-
1-08-3531
to extend the rule in various civil proceedings. For example, in People v. Dowery, 62 Ill. 2d 200(1975), the court refused to extend the exclusionary rule to probation revocation proceedings. In
Grames v. Illinois State Police, 254 Ill. App. 3d 191 (1993), the exclusionary rule did not extend
to police department administrative discharge proceedings. In Fedanzo v. City of Chicago, 333
Ill. App. 3d 339 (2002), the court held the exclusionary rule did not apply in employee
termination proceedings. In McCullough, 293 Ill. App. 3d 591, the court refused to suppress
evidence of an illegally seized handgun at the plaintiff’s vehicle impoundment proceeding before
the department of revenue. The McCullough court examined the costs of applying the
exclusionary rule to a vehicle impoundment proceeding and determined that “the department of
revenue would be unable to consider valuable and relevant evidence that would impede the truth-
finding function of the hearing officer,” thus interfering with the public policy of the
administrative proceeding: eliminating “unlawful weapons from the streets of the city.”
McCullough, 293 Ill. App. 3d at 597-98. Relying upon Janis, the McCullough court held that
“police officers were sufficiently ‘punished’ by exclusion of evidence in criminal prosecutions
because the exclusion frustrates the criminal enforcement process, which was the duty and
concern of police officers to ensure.” McCullough, 293 Ill. App. 3d at 597-98, citing Janis, 428
U.S. at 448, 49 L. Ed. 2d at 1057, 96 S. Ct. at 3029.
Balancing the factors in the present case, we conclude that the exclusionary rule should
not be extended to encompass the present situation. The cost to CHA and the truth-finding
process outweigh the benefit which would result from the application of the exclusionary rule in
forcible entry and detainer actions. By applying the exclusionary rule in the present case, CHA
-9-
1-08-3531
would be unable to consider valuable and relevant evidence of potential criminal activity that
would impede the truth-finding function of the circuit court. To extend the rule and suppress
evidence of criminal activity would hinder CHA’s ability to enforce lease agreements designed to
promote safety and deter illegal conduct in public housing communities. This rationale is
consistent with the concerns of the Illinois General Assembly in implementing the Act, which
was to protect persons at public housing premises from “imminent danger and peril to [their]
lives, safety, health and mental and physical well being.” Pub. Act 87–0933, eff. August 27,
1992 (adding 735 ILCS 5/9–118). The circuit court failed to incorporate this half of the analysis
under the exclusionary rule balancing test.
While the circuit court focused on the deterrent value of suppressing the illegally seized
evidence, the costs of excluding relevant and probative evidence outweigh any additional
marginal deterrence provided by extending the exclusionary rule. Here, as in McCullough, police
officers are sufficiently punished by the exclusion of evidence in criminal prosecutions. While
CPD and CHA are parties to an agreement that requires CPD to provide CHA with policing
services, the record does not indicate CPD is, or has been, improperly motivated to illegally seize
evidence to benefit civil proceedings. Defendant suggests that if illegally seized evidence may be
introduced in eviction proceedings, “nothing will discourage the police from conducting
unlawful searches.” We are not persuaded by this type of speculative argument. In the event that
such improper behavior or police harassment is shown, “the judiciary may impose appropriate
sanctions to deter misconduct.” Dowery, 62 Ill. 2d at 207.
Defendant cites cases from other jurisdictions for the proposition that the evidence should
-10-
1-08-3531
be excluded: Tejada v. Christian, 71 A.D.2d 527, 422 N.Y.S.2d 957 (1979), Boston Housing
Authority v. Guirola, 410 Mass. 820, 575 N.E.2d 1100 (1991), Youssef v. United Management
Co., 683 A.2d 152 (D.C. App. 1996), Housing Authority v. Dawkins, 239 Conn. 793, 686 A.2d
994 (1997), and Tirado v. Commissioner of Internal Revenue, 689 F.2d 307 (2d Cir. 1982), cert.
denied, 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256 (1983). Initially, we note that the
findings of the courts of other jurisdictions are not binding here. People v. Sullivan, 366 Ill. App.
3d 770, 781 (2006). Additionally, we do not find it necessary to turn to another state for
guidance on the issue. Nonetheless, we note that of the five cases cited by defendant from other
jurisdictions, only one of the courts found in favor of applying the exclusionary rule, Tejada, 71
A.D.2d 527, 422 N.Y.S.2d 957. However, the Tejada court did not apply the exclusionary rule
balancing test, and instead, after only a brief discussion of the deterrent effect of excluding the
evidence, determined that it “ would necessarily be obliged” and “required” to suppress the
illegally obtained evidence. Tejada, 71 A.D.2d at 530, 422 N.Y.S.2d at 959-60. This type of
blanket assertion contradicts the long standing philosophy that the “exclusionary rule has never
been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all
persons.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620.
Lastly, we are not persuaded that article I, section 6, of the Illinois Constitution of 1970
requires an independent analysis pertaining to the applicability of the exclusionary rule in
forcible entry and detainer actions. While we are free to prescribe a broader remedy under article
I, section 6, than would be required under the fourth amendment (People v. Caballes, 221 Ill.2d
282, 305-06 (2006)), we see no reason to do so in the present case. As explained above, Illinois
-11-
1-08-3531
courts considering the applicability of the exclusionary rule in civil proceedings have routinely
applied the balancing test set out by the Supreme Court. We see no reason to stray from this
practice of balancing the likely benefits of excluding unlawfully seized evidence against the
likely costs under either the federal or state constitution.
For the foregoing reasons, we reverse the circuit court’s dismissal of plaintiff’s forcible
entry and detainer action and remand the cause for further proceedings.
Reversed and remanded.
TOOMIN, P.J., and HOWSE, J. Concur.
-12-
1-08-3531
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
U.S. RESIDENTIAL MANAGEMENT &
DEVELOPMENT, LLC as Property Manager for
CHICAGO HOUSING AUTHORITY ,
Plaintiff-Appellant,
v.
MICHAEL HEAD,
Defendant-Appellee.
No. 1-08-3531
Appellate Court of Illinois
First District, Fifth Division
JUSTICE TULLY delivered the opinion of the court:
TOOMIN, P.J., and, HOWSE, J., concur.
Appeal from the Circuit Court of Cook County
HONORABLE SHELDON GARBER
Richard W. Christoff of Sanford Kahn, LTD., 180 North LaSalle Street, Suite 2025, of
Chicago, Illinois, for Plaintiff-Appellant.
Lawrence D. Wood, Miriam Hallbauer, Carolyn Norton of Legal Assistance Foundation
of Metropolitan Chicago, 1279 N. Milwaukee Avenue, Suite 407, of Chicago, Illinois for
Defendant-Appellee.
-13-