noting that if the court were to stray from established principles of constitutional construction Acritics not unreasonably would declare it judicial arrogance for courts to say that their power to construe constitutions was limited only by the restraints courts might impose upon themselves@
How later courts described this case
- noting that if the court were to stray from established principles of constitutional construction Acritics not unreasonably would declare it judicial arrogance for courts to say that their power to construe constitutions was limited only by the restraints courts might impose upon themselves@
- noting that if the court were to stray from established principles of constitutional construction “critics not unreasonably would declare it judicial arrogance for courts to say that their power to construe constitutions was limited only by the restraints courts might impose upon themselves”
- finding no basis to implement a broader construction of our search and seizure provision than that used by the federal judiciary to interpret the fourth amendment
- noting that the Gates totality-of-circumstances approach has superseded the test set out in Aguilar v. Texas , 378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514 (1964)
Written by the judges who cited it.
The opinion
JUSTICE GOLDENHERSH, dissenting:
I dissent, and would affirm the judgment of the appellate court. Prior to discussing what I perceive to be the errors in the majority’s holding the search valid, I state my concurrence with the views expressed by Justice Clark concerning this court’s interpreting our constitution to afford greater protection than do purportedly similar provisions of the Federal Constitution. As I said in my dissent in People v. Exline (1983), 98 Ill. 2d 150, 157 ,"we are not required to blindly follow the action taken by the Supreme Court in determining the standards applicable under our own constitution.”
The record in this case contains no evidence of the informant’s basis of knowledge and the allegedly corroborative evidence of defendant’s activity, in lieu thereof, is utterly meaningless. The value of evidence as corroborative of a fact related by an informant must be determined by the surrounding circumstances, and as the Supreme Court and this court have said on numerous occasions, the presence of probable cause is to be determined on a common sense basis. In Draper v. United States (1959), 358 U.S. 307 , 3 L. Ed. 2d 327 , 79 S. Ct. 329 , the informant’s story was that a certain described individual would alight from a certain train on either of two days wearing certain described clothing and carrying a tan zipper bag. The fact that an individual matching this description alighted from a train which had just arrived at the Denver railway station from Chicago was of some corroborative value. In contrast here, we have the fact that the defendant would be driving his automobile with which the police officer was already familiar, bearing a certain license plate, the number of which was already known to the police officer, and would go to the Number Nine Game Room, a known teenage "hangout,” apparently the only such place in the city of Marseilles, and where defendant went almost every day. The only information that the police officer obtained from the informant which he did not already have was that the car would be arriving from the general direction of Streator. Considering that this is one of the main traveled highways through Marseilles, the fact that the automobile arrived from that direction is hardly corroborative of criminal activity.
On inquiry, the police officer could probably have determined in the Number Nine Game Room, without the aid of an informant, that the defendant stopped there almost every day and would probably arrive at approximately the time at which he did. Under these circumstances, the admitted past reliability of the informer does not serve to fill the gap left by complete lack of evidence of the basis of knowledge.
In its opinion in Gates the Supreme Court did not obviate the requirement that there appear in “the totality of the circumstances” a basis for determining the basis of knowledge of the unnamed informant. The Supreme Court said:
“We agree with the Illinois Supreme Court that an informant’s ‘veracity/ ‘reliability/ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Illinois v. Gates (1983), 462 U.S. 213, 230 , 76 L. Ed. 2d 527, 543 , 103 S. Ct. 2317, 2327 .
The result of this decision is to apply an amorphous concept of “totality of the circumstances” without guidelines or minimum requirements. I am of the opinion that further application of this “test” will, as suggested by Mr. Justice White in his concurring opinion in Illinois v. Gates (1983), 462 U.S. 213, 272 , 76 L. Ed. 2d 527, 570 , 103 S. Ct. 2317, 2350 (White, J., concurring), “foretell an evisceration of the probable-cause standard.”
JUSTICE SIMON joins in this dissent.