The opinion
JUSTICE INGLIS, dissenting:
I respectfully dissent from the majority and would find that the good-faith exception to the exclusionary rule as articulated in Illinois v. Krull (1987), 480 U.S. 340 , 94 L. Ed. 2d 364 , 107 S. Ct. 1160 , is controlling in the case at bar.
The good-faith exception was first recognized by the United States Supreme Court in United States v. Leon (1984), 468 U.S. 897 , 82 L. Ed. 2d 677 , 104 S. Ct. 3405 , and was later expanded in Illinois v. Krull. In Leon, the defendant was arrested after a search of his residence revealed a large quantity of narcotics. The search was based on a facially valid search warrant later determined to be invalid. The Court held that evidence seized on the authority of a search warrant later found to be invalid need not be excluded if the police officer’s reliance on the warrant was objectively reasonable. The Court reasoned that to exclude evidence under these circumstances would not further the underlying purpose of the exclusionary rule, which is to deter police misconduct, because at the time of the search and seizure the police officer was acting as a reasonable police officer should. 468 U.S. at 918-19 , 82 L. Ed. 2d at 696 , 104 S. Ct. at 3418 .
In Krull, relying on the same rationale used in Leon, the Court extended the good-faith exception to situations in which a police officer conducts a search and seizure under the authority of a statute later found to be unconstitutional. The Court reasoned:
“The approach used in Leon is equally applicable to the present case. The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer’s actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.” (Krull, 480 U.S. at 349-50 , 94 L. Ed. 2d at 375 , 107 S. Ct. at 1167 .)
To fit within the Krull type of good-faith exception, the officer’s reliance on the constitutionally defective statute must be objectively reasonable. Further, the legislature which enacted the statute must not have wholly abandoned its responsibility to enact laws consistent with the constitution. Krull, 480 U.S. at 355 , 94 L. Ed. 2d at 378-79 , 107 S. Ct. at 1170 .
The majority found that the holding in Krull was inapplicable to the case at bar because Krull involved an inspection of a commercial property, whereas in the case at bar a private residence was inspected. I find no support for the distinction made by the majority. (See People v. Mashaney (1987), 160 Ill. App. 3d 390, 393-94 .) Krull was substantially based on the holding and reasoning in Leon which involved a search of a private residence. While it is true that a private dwelling is generally afforded more protection than commercial property (Donovan v. Dewey (1981), 452 U.S. 594, 598-99 , 69 L. Ed. 2d 262, 268-69 , 101 S. Ct. 2534, 2537-38 ), the protection is provided through meeting the good-faith requirement, not by barring the application of the exception altogether.
In applying the good-faith requirement to the case at bar, I believe the police officer’s actions fell within the Krull exception to the exclusionary rule. It does not seem unreasonable for an officer to rely on an ordinance designed to enforce the city’s building codes. The applicable standard is that of a “reasonable officer,” not of an attorney, or other legal professional, trained to research the law.
In addition, it does not appear to me that the Village “wholly abandoned” its obligation to pass constitutional laws. While we may declare the ordinance to be unconstitutional, that fact alone does not suggest that the Village “wholly abandoned” its obligation. If it did, the good-faith exception in Krull could never be met.
Therefore, I respectfully dissent.