Petitioners Brief — Illinois v. Krull

JOSEPH F. SPANIOL, JR.

CLERK

Octoper Term, 1985

THE STATE OF ILLINOIS,

Petitioner,

vs.

ALBERT KRULL, et al,

Respondents.

On Writ Of Certiorari To The

Suprep’z Court Of Illinois

PETITIGNER’S BRIEF ON THE MERITS

NEIL F. HARTIGAN

Attorney General, State of flinois

ROMA J. STEWART

Solicitor General, State of Dlinois

MARK L. ROTERT*

Assistant Attorney General

100 West Randolph Street, 12th Fl: or

Chicago, Illinois 60601

(312) 917-2570

Counsel for Petitioner

Marcia L. Frtepi

Assistant Attorney General

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 33287—70- -6-21-86)

PETITION FOR WRIT OF CERTIORARI FILED SEPTEMBER 16, 1985

CERTIORARI GRANTED MARCH 24, 1986

i

QUESTION PRESENTED

Whether the exclusionary rule was properly invoked in

the lower court where the predicate search was authorized

by a presumptively valid statute only later found to vio-

late the fourth amendment.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ................... i

TABLE OF AUTHORITIES ................. ili

SPUD MOUEEMPOD cnc cc ccc ccccccccccccccess 1

EEE ney cp cccescccccccccccscccess 2

STATUTES INVOLVED .................... 2

STATEMENT OF THE CASE ............... 3

SUMMARY OF ARGUMENT ................ 6

ARGUMENT:

THE EXCLUSIONARY RULE WAS IMPROP-

ERLY INVOKED IN THE LOWER COURT

WHERE THE PREDICATE SEARCH WAS

AUTHORIZED BY A PRESUMPTIVELY

VALID STATUTE ONLY LATER FOUND TO

VIOLATE THE FOURTH AMENDMENT ... 8

A

Application Of The Exclusionary Rule is Un-

warranted Where A Search Or Seizure Was

Conducted In Reasonable Reliance On A Stat-

ute Subsequently Ruled Invalid Under The

re ci videds cénancer de 8

The Inspection Of Respondent Krull’s Prem-

ises, Authorized By A Long-Standing State

Statute Which Existing Law Did Not Clearly

Establish To Be Invalid, Was Conducted In

CER AEG bob CUCL 6 dred ce ceciwvetenss 14

au cddndsenssescedesbencaseess 21

iii

TABLE OF AUTHORITIES

Cases PAGE

Almeida-Sanchez v. United States, 413 U.S. 266

SEIT OOOO Bee rs et Saree ma een aE ye 12, 13

Bion.c Auto Parts and Sales, Inc. v. Fahner, 518

F. Supp. 582 (N.D. Ill. 1981) .............. 11, 16

Bionic Auto Parts and Sales, Inc. v. Fahner, 721

ee Me Me BD ncccccccccccsnccs 15, 17

City of Indianapolis v. Wright, 371 N.E.2d 1298

i es 19

Colonnade Catering Corp. v. United States, 397

ERE ne pe et RL ne 17, 18

Desist v. United States, 394 U.S. 244 (1969) ... 13

Donovan v. Dewey, 452 U.S. 594 (1981) ....... 15, 19

Kim v. Dolch, 219 Cal. Rptr. 248 (Cal. App. 4th

ee eas ve cbse 20

Lindberg v. Zoning Board of Appeals, 8 Ill. 2d 254,

Se f 8 EE ee 15

Maher v. Roe, 482 U.S. 464 (1977) ........... 11

Marshall v. Barlow’s, Inc., 429 U.S. 1347 (1977) .

IS EES Sg, ne oe ee 10, 16, 18

Massachusetts v. Sheppard, __. U.S. ___, 104

EG Or ae aoe aoe s

Michigan v. De Fillippo, 443 U.S. 31 (1979) .. 13,14

Northern Illinois Automobile Wreckers and Re-

builders Ass’n v. Dixon, 75 Til. 2d 53, 387 N.E.

I 2 vu. wan wk cub oeOb Chiao dance 17

iv

Payton v. New York, 445 U.S. 573 (1980) ..... 10

People v. Allen, 407 Il. 596, 96 N.E.2d 446 (1950) . . 17

People v. Easley, 90 Cal. App. 3d 440, 153 Cal.

RR 7 RE RR 19

People v. Firstenberg, 92 Cal. App. 3d 570, 155 Cal.

ell A ME Cah dts snc akkebiewnnay ie 18

People v. Krull, 107 Ill. 2d 107, 481 N.E.2d 703

MR 5... sicivaasdarcatt eeeDrern 14, 16

People v. Levy, 370 Ill. 82, 17 N.E.2d 967 (1938) . 17

People v. Tinneny, 99 Misc. 2d 962, 417 N.Y.S.2d

Se UE ca0 ow bap Cab ee db hove de eane ese ve be 19

Peterman v. Coleman, 764 F.2d 1416 (11th Cir.

I cdc 85k do bb URS Saw de eae eR ees Keres 20

Pollard v. Cockrell, 578 F.2d 1002 (5th Cir. 1978) . 18

State v. Barnett, 389 So. 2d 352 (La. 1980) ... 18

Stone v. Powell, 428 U.S. 465 (1976) .......... i)

United States v. Biswell, 406 U.S. 311 (1972) .. 15, 17, 18

United States v. Calandra, 414 U.S. 338 (1974) ... 4

United States v. Di Re, 332 U.S. 581 (1948) .. 10

United States v. Gel Spice Co., 601 F. Supp. 1214

RAs MEE ad cdicbbns cocvdeeennntee aes’

United States v. Jamieson-McKames Pharmaceuti-

cals, 651 F.2d 532 (8th Cir. 1981), cert. denied,

Ga Tes. ED bv hn 060d Conins tree sess 20

United States v. Janis, 428 U.S. 433 (1976) ... )

United States v. Johnson, 457 U.S. 537 (1982) ... 13

United States v. Kaiyo Maru No. 58, 503 F. Supp.

WTS GD. AIMGMR TOUS) oc cccccnccccsscccdses 18

i

:

Vv

arte eat iouanae teeta .. passim

United States v. New England Grocers Supply Co.,

488 F. Supp. 230 (D. Mass. 1980) ......... 18

United States v. Peltier, 422 U.S. 531 (1975) .. 12,13

United States v. Watson, 423 U.S. 411 (1976) ... 10

Constitutional Provisions and Statutes

United States Constitution, Amendment IV ... 2

6 kg Ey Sn rane a 18

i ee east éanteese 18

hn Soc sein wdbetenseecses 2

30 U.S.C. § 813(a) (1976 ed., Supp. III) ....... 20

ED 3, 16

Ariz. Rev. Stat., § 28-1307 (1952) ............. 19

Colo. Rev. Stat., § 42-5-105 (1963) ............. 19

Del. Code, Title 21, §6717 (Supp. 1977) ....... 19

Hawaii Rev. Stat., § 289-6 (1976) ............. 19

Ill. Rev. Stat., ch. 95%, § 5-401 (1979) ......... 2,15

Ill. Rev. Stat., ch. 95%, § 5-403 (1983) ......... 17

Ill. Rev. Stat., ch. 954%, § 87(a) (19387) ......... 17

Tex. Veh. Code Ann., § 6687-2 (1977) ......... 19

In Tue

Supreme Court of the United States

Octoser Term, 1985

¢

THE STATE OF ILLINOIS,

Petitioner,

vs.

ALBERT ERULL, et al,

Respondents.

On Writ Of Certiorari To The

Supreme Court Of Llinois

PETITIONER’S BRIEF ON THE MERITS

OPINIONS BELOW

The opinion of the Illinois Supreme Court presented for

review is set forth in the appendix of the Petition for a

Writ of Certiorari and reported at People v. Krull, 107

Ill. 2d 107, 481 N.E.2d 703 (1985). The unreported Novem-

ber 23, 1983, Order of the Appellate Court of Illinois,

First Judicial District, is set forth in the Joint Appendix

at pages 22-26. The Report of Proceedings containing the

trial court’s findings on September 25, 1981, and July 9,

1984, is reproduced at pages 18-21 and pages 27-35 of the

Joint Appendix.

ollie,

JURISDICTION

The opinion of the Illinois Supreme Court was filed on

July 17, 1985 and the Petition for a Writ of Certiorari

submitted September 16, 1985. The petition was granted

by this Court on March 24, 1986. Jurisdiction is invoked

pursuant to 28 U.S.C. § 1257(8).

STATUTES INVOLVED

United States Constitution, Amendment IV:

The right of the People to be secure in their per-

sons, houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and icularly de-

scribing the place to be searched and the person or

things to be seized.

The text of Illinois Revised Statute, Chapter 95%, Sec-

tion 5-401 (1979), is set forth in its entirety at pages 36-37

of the Joint Appendix.

ie

STATEMENT OF THE CASE

Complaints filed on July 5, 1981, in the Circuit Court

of Cook County, Illinois, charged respondent Salvatore

Mucerino with one count of possession of a stolen vehi-

cle (J.A. 2) and respondent George Lucas with three

counts of possession of a stolen vehicle and one count of

possession of a false manufacturer’s identification number.

(J.A. 9-12) Complaints filed on July 20, 1981, charged re-

spondent Albert Krull with six counts of failure to sur-

render a certificate of title. (J.A. 3-8)

The facts underlying all charges arose on July &, 1981,

when Detective Leilan K. McNally of the Chicago Police

Department made a warrantless entry onto the business

premises of the Action Iron and Metal Company for the

purpose of performing a records inspection authorized by

section 5-401(e) of the Illinois Vehicle Code.' The follow-

ing day, in an unrelated action for injunctive relief filed

pursuant to 42 U.S.C. § 1983, the Honorable Milton I.

Shadur cf the United States District Court for the North-

ern District of Illinois held that the statute’s authoriza-

tion of searches “at any reasonable time during the night

or day” does not sufficiently circumscribe official discre-

tion as to when and whom to search. Bionic Auto Parts

and Sales, Inc. v. Fahner, 518 F. Supp. 582 (N.D. Ill.

1 Section 5-401(e) provided:

Ill. Rev. Stat., ch. 95%, § 5-401(e) (1979) (J.A. 37).

~~

1981). Respondents subsequently filed a motion to sup-

press evidence based upon this decision. (J.A. 13-17)

At a hearing on the motion before the Honorable Mar-

tin F. Hogan, Detective McNally testified that at approx-

imately 10:30 a.m. July 5, 1981, he made a warrantless

inspection of the Action Iron and Metal Company’s prem-

ises as part of his regular inspection duties carried out

pursuant to section 5-401(e). (R. 12-14, 18, 24)? When he

arrived at the scrap yard, the officer noticed tow trucks

delivering wrecked vehicles which were purchased by re-

spondent Lucas. McNally identified himself to Lucas as

a police officer and asked if the yard was open for busi-

ness. Lucas replied affirmatively and stated that he was

in charge. (R. 21, 25) McNally requested that he be al-

lowed to inspect the company’s license and records con-

tained in what is commonly known as the police book. (R.

26) Lucas responded that he could not locate the docu-

ments but did produce a yellow pad of paper describing

five venicles which he had purchased. (R. 17, 26)

McNally asked Lucas if he objected to the officer’s in-

sy ection of vehicles in the yard, to which respondent re-

plied “Go right ahead.” (R. 26) McNally preceeded to

make a notation of the serial number on all the vehicles

he was able to examine. (R. 12, 26) He then checked those

serial numbers on his mobile computer and discovered

that three of the vehicles had been reported stolen. (R.

11, 12) These vehicles were seized, along with another that

had the vehicle identification tag removed. (R. 11)

Lucas was arrested on the scene. (R. 16, 19) Although

respondent Mucerino was also present, he was not ar-

rested until some time later. (R. 18, 19) Respondent Krull,

2 “R.” designates the Report of Proceedings held September 25,

1981, on respondents’ Motion to Suppress Evid«nce Illegally Seized.

=f

a licensee of the corporation, was not present on "uly 5

and could not be located. (R. 10, 11, 17, 18) Pursuant to

McNally’s request, Krull’s attorney later tendered to the

officer all the company’s pertinent records. (R. 10)

The crial court ruled that respondent Mucerino had

standing to object to Detective McNa!'y’s search and that

respondent Lucas had not given effective cons-nt to

search. (J.A. 19, 20) The court further found the inspec-

tion to be permissible activity under the statute, but

granted the motion to suppress because section 5-401(e)

had been declared unconstitutional. (J.A. 20, 21) On the

People’s appeal to the Appellate Court of Illinois, First

Judicial District, the court vacated Judge Hogan’s order

and remanded the case in light of Illinois v. Gates, 462

U.S. 218 (1983), for a determination of whether the search

of the scrap yard was conducted in good faith. Because

section 5-401(e) h_d since been amended by the Illin»is

legislature =nd portions of Judge Shadur’s order in Bionic

were therefore vacated as moot by the seventh circuit

[Bionic Auto Parts and Sales, Inc. v. Fahner, 721 F.2d

1072 (7th Cir. 1983)], the court also suggested that Judge

Hogan reconsider whether the prior statute was constitu-

tional and whether respondent Mucerino had standing to

contest the search. People v. Krull, Nos. 81-2621, 81-2622,

81-2623 consol. (Ist Dist. Nov. 23, 1983). (J.A. 22-26)

On remand, Judge Hogan reiterated his previous find-

ings that respondent Lucas did not consent to the search,

that respondent Mucerino had standing, and that for the

reasons stated by the district court in Bionic, section

5-401(e) was unconstitrtional before being amended. (J.A.

30, 32, 33) On the issue “directed by the Appellate Court

23 a result of the Gates’ Case’’, the trial court fourd Gates

and its discussion of the good faith exception to the exclu-

sionary rule to be irrelevant in the context of warrantless

-

searches cunducted pursuant to statute. (J.A. 32, 34, 35)

Accordingly, the original ruling on respondents’ motion

to suppress remained intact. (J.A. 33)

Judge Hogan’s order was affirmed on the People’s direct

appeal to the Illinois Supreme Court, which held that re-

spondent Lucas did not consent to the search, that good

faith reliance on a procedural statute will not cure an

otherwise illegal search, and that prior to being amended

section 5-401(e) was unconstitutional for the reasons stated

by the district court in Bionic. People v. Krull, 107 Il.

2d 107, 481 N.E.2d 703 (1985). Petitioner obtained cer-

tiorari review of that decision on March 24, 1986.

SUMMARY OF ARGUMENT

A. In United States v. Lecn, ___. U.S. ___, 104 S.Ct.

3405 (1984), this Court for the first time recognized a good

faith exception to the fourth amendment exclusionary rule,

holding that there exists insufficient justification for the

suppression of reliable evidence in the prosecution’s case-

in-chief when an arrest _,; search was effectuated by law

enforcement in objectively reasonable reliance on a subse-

quently invalidated warrant. Adhering to the reasoning

of Leon, a good faith exception should also be recognized

when police have acted in reasonable reliance on 4 statute

later declared invalid under the fourth amendment. The

enactments of state and federal legislatures are presump-

tively constitutional; officers charged with enforcement of

the laws cannot ordinarily be expected to question their

validity any more than officers can be expected to ques-

tion the validity of a duly issued warrant. Particularly

where searches or seizures are reasonabiy conducted pur-

~~ —_—-

+ c{[—f£

wnlilhin

suant to a statute or warrant, the primary purpose of the

exclusionary rule, to deter police misconduct, would not

be significantly advanced by the costly use of the sup-

pression sanction. Nor will the exclusionary rule’s ra-

tionale support an attempt to deter legislatures from en-

acting unconstitutional statutes. These bodies cre guaran-

tors of the people’s liberty to the same degree as the

courts. Adequate incentive to comply with the fourth

amendment further exists through serious practical con-

sequences attending the invalidation <f 2 statute indepen-

dent of evidentiary exclusion.

B. The warrantless inspection of respondent Krull’s

premises was authorized by a state statute regulating the

licensed industry of automotive parts and scrap proces-

sors, which Illinois had long subjected to extensive scru-

tiny. Neither the statute nor its predecessor enacted in

the 1930s had been held invalid at the time of the search.

Although a federal district court judge later declared the

statute in violation of the fourth amendment, even mem-

bers of the judiciary would appear to be in conflict over

the correciness of that ruling. Under these circumstances,

there existed no significant reason for the police to ques-

tion the presumptive validity of the statute when respon-

dent Krull’s premises were inspected. Because law en-

forcement acted in good faith, the exclusionary rule was

improperly invoked by the lower court.

abu

ARGUMENT

THE EXCLUSIONARY RULE WAS IMPROPERLY IN-

VOKED IN THE LOWER COURT WHERE THE PREDI-

CATE SEARCH WAS AUTHORIZED BY A PRESUMP-

TIVELY VALID STATUTE ONLY LATER FOUND TO

VIOLATE THE FOURTH AMENDMENT.

Pursuant to a long-standing Ulinois statute authorizing

the warrantless administrative inspection of business

premises occupied by licensed used automobile and parts

dealers, a detective of the Chicago Police Department

perused inventory of the Action Iron and Metal Company

owned by resp_ndent Krull. Although the regulatory stat-

ute was subsequently held to violate the fourth amend-

ment, at the time of the inspection there existed no

significant reason for the detective to question its vatidi-

ty. Under these circumstances, this Court’s aecision in

United States v. Leon, ___. U.S. ___, 104 S.Ct. 3405

(1984), mandates the conclusion that application of the ex-

clusionary rule below was not justified.

A.

Application Of The Exclusionary Ruie Is Unwarranted

Where A Search Or Seizure Was Conducted In Reasonable

Reliance On A Statute Subsequently P.uled Invalid Under

The Fourth Amendment.

In Leon and its companion case Massachusetts v. Shep-

pard, _.__ U.S. ___, 104 S.Ct. 3424 (1984), this Court

for the first time recognized a good faith exception to the

fourth amendment exclusionary rule, holding that evalua-

tion of the societal costs and be’ efits in suppressing reli-

able evidence dictates that the sanction not be applied

during the prosecution’s vase-in-chief where an arrest or

a search was effectuated by law enforcement in objectively

-

reasonable reliance on a subsequently invalidated warrant.

Rejection of suppression as an appropriate remedy to en-

force fourth amendment rights is even more compelling

where a search or seizure was conducted in good faith

pursuant tc a presumptively valid statute later declared

unconstitutional.

It is well-established that the exclusionary rule operates

as “‘a judicially created remedy designed to safeguard

Fourth Amendment rights generally through its deterrent

effect, rather than a personal constitutional right of the

person aggrieved.” United States v. Calandra, 414 U.S.

338, 348 (1974). This Court has also recognized that

through its interference with the fact-finder’s truth seek-

ing function, the rule may operate to ameliorate or nullify

the adverse consequences of criminal conduct and thereby

“generatie] disrespect for the law and administration of

justice.” Stone v. Powell, 428 U.S. 465, 490, 491 (1976).

Accordingly, invocation of the rule had not been required

merely because suppression in a particular context incre-

mentally contributes to its deterrent function. See, e.g.,

United States v. Janis, 428 U.S. 483, 454 (1976) (use in

federal civil proceedings of evidence illegally seized by

state officials). Rather, “{ajs with any remedial device, the

application of the rule has been restricted to those areas

where its remedial objectives are thought most efjicacious-

ly served.” Calandra, 414 U.S. at 348 (emphasis supplied).

To ascertain the potential benefits served by appli-

tion of the exclusionary rule where warrants have be

secured, Leon focused on the sanction’s effect on th

behavior of individual law enforcement officers or on the

policies of their departments. 104 S.Ct. at 3419. In dis-

countine any influence the suppression of evidence may

have on judges or magistrates issuing warrants, this Court

reasoned that (1) the primary purpose of the exclusion-

-—~

ary rule is to deter police misconduct rather than to pun-

ish judicial error, (2) no evidence suggests that judges and

magistrates are inclined to ignore or subvert the fourth

amendment or that lawlessness among these actors re-

quires application of the extreme sanction of exclusion,

and (3) there exists no basis for believing that use of the

rule will have any significant effect on a neutral judicial

officer’s decision to issue a warrant. Id. at 3418. Each of

these considerations applies with equal if not greater force

in the context of searches or seizures conducted pursuant

to duly enacted state or federal legislation.

The primary purpose of the exclusionary rule is not to

punish legislative error, nor is the reckless enactment of

unconstitutional statutes “a problem of major propor-

tions.” Jd. at 3418, n.14. Any contrary suggestion would

fly in the face of this Court’s repeated pronouncements

that, particularly where the validity of a statute turns on

what is “reasonable” under the fourth amendment, the

collective judgment of legislators on the issue is entitled

to a strong presumption of constitutionality. See United

States v. Di Re, 332 U.S. 581, 585 (1948); Un: ‘ed States

v. Watson, 423 U.S. 411, 416 (1976); Marshall v. Barlow’s,

Inc., 429 U.S. 1347, 1348 (1977) (Rehnquist, J., in cham-

bers). Cf. Payton v. New York, 445 U.S. 573, 600 (1980)

(while a long-standing, widespread practice is not immune

from fourth amendment scrutiny, it is not to be lightly

brushed aside, particularly “when the constitutional stand-

ard is as amorphous as the word ‘reasonable’, and when

custom and contemporary norms necessarily play such a

large role in the constitutional analysis.’’). This Court’s

willingness to place weight on legislative determinations

of reasonableness when resolving substantive fourth

amendment issues clearly implies a rejection of any no-

tion that legislatures tend to undermine fourth amendinent

principles so as to necessitate the use of costly sanctions

we

such as evidentiary suppression. Indeed, common sense

dictates that errant judicial behavior on the part of a

single judge or magistrate will occur with nore frequen-

cy than the enactment of misconceived statutes hammered

out by entire legislative bodies which are “ultimate guard-

ians of the liberties and welfare of the people in quite

as great a degree as the courts.” Maher v. Roe, 432 U.S.

464, 480 (1977) [quoting Missouri K & T.R. C. v. May,

194 U.S. 267, 270 (1904) (Holmes, J.)].

Nor is there any reason to believe that exclusion of evi-

dence seized pursuant to statute will have a significant

deterrent effect on the enactment of legislation contraven-

ing the fourth amendment. While the legislative branch

might be viewed as more closely aligned with law enforce-

ment than the judiciary, incentive to enact valid laws

nevertheless v''! not arise from the potential exclusion

of evidence in particular criminal proceeding. Rather, a

legislature’s incentive exists in the knowledge that should

its statute fail to survive judicial scrutiny, not only will

* In Leon, this Court observed that reviewing courts have the

authority to resolve fourth amendment tions on their merits

before turning to considerations of faith and that it is not

likely litigants will be significantly deterred from presenting color-

able claims by application of the good faith exception. 104 S.Ct.

at 3422, 3423. Particularly in the context of single industry -

latory statutes such as that at issue here (see nt B, infra),

there is no that their constitutionality becorne immune

from attack. the search or seizure made pursuant to an in-

dividual warrant will be blow be searches authorized

in pervasively regulated in ies by definition occur more

frequently and businesses subjected to those searches will likely

have the incentive and financial nay | to seek declaratory or in-

junctive relief as did the association of auto yards in Bionic Auto

Parts and Sales, Inc. v. Fahner, 518 F. Supp. 582 (N.D. Ill. 1981).

Therefore, even more unpersuasive than in [eon are the argu-

ments that recognition of a good faith exception “will preclude

review of the constitu‘ionality of the search or seizure, deny

needed guidance from the courts, or freeze Fourth Amendment

law in its present state.” 104 S.Ct. at 3422.

= SS

the condemnation of its actions be highly visible indepen-

dent of the particular case under review, but the laborious

process of legislative creation must begin anew. Although

it has been suggested that adoption of a good faith ex-

ception will affect the diligence of magistrates issuing war-

rants, it is not even arguable that a legislature’s duty to

enact constitutional statutes will come to be perceived by

that body as an “inconsequential chore.” Leon, 104 S.Ct.

at 3444 (Brennan, J., dissenting). Therefore, “{i}f exclu-

sion of evidence obtained pursuant to a subsequently in-

validated [statute] is to have any deterrent effect, .. .

it must alter the behavior of law enforcement officers or

the policies of their departments.” Jd. at 3419.

In United States v. Peltier, 422 U.S. 531 (1975), this

Court held that the policies underlying the exclusionary

rule did not warrant retroactive application of its fourth

amendment holding in Almeida-Sanchez v. United States,

413 U.S. 266 (1973). The Court reasoned first that the

deterrent purpose of the rule “necessarily assumes that

the police have engaged in willful, or at the very least

negligent,” unconstitutional conduct. 422 U.S. at 539 [quot-

ing Michigan v. Tucker, 417 U.S. 433, 447 (1974)]. Accord-

ingly, evidence obtained from an invalid search should be

suppressed “only if it can be said that the law enforce-

ment officer had knowledge, or may be properly charged

with knowledge,” that the search violated the fourth

amendment. Jd. at 542. Second, because the search at

issue had been conducted pursuant to long-standing stat-

utory and regulatory authority which had been repeatedly

upheld against constitutional attack by the lower courts,

law enforcement could not be charged with knowledge of

its invalidity. Id.

While the fourth amendment retroactivity analysis of

Peltier appears to have since been modified by this

=~

Court,‘ its suggestion that the exclusionary rule should

not be applied to deter objectively rcasonable police con-

duct was reiterated in Leon, which found that application

of a good faith exception in warrant cases is particularly

appropriate because it is the magistrate’s responsibility

to issue a warrant comporting v h the fourth amendment.

104 S.Ct. at 3419, 3420.

Just as in “the ordinary case” an officer cannot be ex-

pected to question the propriety of a duly issued warrant

(id. at 3420), an officer should not generally be required

to second-guess the validity of statutes which have been

enacted by legislative bodies acting as co-guarantors of

the people’s liberty. See pp. 10, 11 supra. As recognized by

this Court in Michigan v. De Fillippo, 443 U.S. 31 (1979),

Police are to enforce laws until and unless

they are unconstitutional. The enactment of

a law forecloses speculation by enforcement officers

concerning its constitutionality—with the possible ex-

ception of a law so grossly and flagrantly unconstitu-

tional that any person of reasonable prudence would

be bound to see its flaws. Society would be ill-served

if its police officers took it upon themselves to deter-

* Peltier relied almost exclusively on the policies underlying the

exclusionary rule in determining that Almeida-Sanchez should not

be applied retroactively. 422 U.S. at 535. In United States v. John-

son, 457 U.S. 537 (1982), this Court deemphasized consideration

of the —— of a particular constitutional rule and to a great

extent embraced Justice Harlan’s dissenting opinion in Desist v.

United States, 394 U.S. 244 (1969), which expressed the view that

the Court should strive to formulate retroactivity principles of

generai applicability, to decide all cases before it in accord with

existing constitutional standards, and to treat similarly situated

defendants similarly. Desist, 394 U.S. at 258, 259. Johnson there-

fore concluded that unless a case is clearly controlled by prior

retroactivity precedent, a decision of the Court construing the

fourth amendment (at issue there) is to be applied retroactively

to all convictions not yet final at the time the decision was

rendered. 457 U.S. at 562.

—14—

mine which laws are and which are not constitutional-

ly entitled to enforcement.

Id. at 38.

De Fillippo held that where an arrest is made in reason-

able reliance on a substantive criminal statute later de-

clared unconstitutional, the fourth amendment is not of-

fended. In finding the decision’s consideration of good faith

inappropriate to the case at bar, the Illinois Supreme

Court correctly noted that De Fillippo specifically dis-

tinguished between intrusions conducted pursuant to sub-

stantive statutes and those effectuated under color of a

procedural statute directly authorizing the arrest or

search. People v. Krull, 107 Ill. 2d 107, 118, 481 N.E.2d

703, 708 (1985). Regardless of the validity of that distinc-

tion, however, the lower court failed to recognize the more

significant and reasoned distinction later made manifest

in Leon between substantive fourth amendment decisions

and those wherein the applicability of the exclusionary

rule as a proper remedy is in issue. See Leon, 104 S.Ct.

at 3415, n.8. As Leon teaches, resolution of the latter

question depends solely upon the rule’s potential for deter-

rence in a given context, and De Fillippo speaks direct-

ly to this point: “To deter police from enforcing a pre-

sumptively valid statute was never remotely in the con-

templation of even the most zealous advocate of the exclu-

sionary rule.” 443 U.S. at 39, n.3.

The Inspection Of Respondent Krull’s Premises, Author-

ized By A Long-Standing State Statute Which Existing Law

Did Not Clearly Establish To Be Invalid, Was Conducted

In Good Faith.

The criminal charges brought against respondents are

predicated upon the July 5, 1981, warrantless entry onto

—15—

the business premises of the Action Iron and Metal Com-

pany by Detective Leilan K. McNally of the Chicago

Police Department. The entry was made pursuant to sec-

tion 5-401(e) of the Illinois Vehicle Code, which provided:

(e) Every record required to be maintained under

this Section shall be opened to inspection by the Sec-

retary of State or his authorized representative or

any peace officer for inspection at any reasonable

time during the night or day. Such i ion may

include examination of the premises of licensee’s

established place of business for the purpose of deter-

mining the accuracy of required records.

Ill. Rev. Stat., ch. 95%, § 5-401(e) (1979) (J.A. 37).5

5 The trial court initially held that Detective McNally’s inspec-

tion of the ises was “permissible activity” in accord with the

statute (J. $0, bet later intimated thet the search exceeded

preamp wp ng mp Ee Ted dT. .

n to v > accuracy 0 “record” provided hi

by respondent s at the time, a pad of r upon which five

vehicles were described. (J.A. 29) Inasmuch as all pertinent rec-

ords of the were later tendered to McNally at his office

by respondent ’s attorney (R. 10), the trial court apparently

questioned whether under the statute the premises search could

a scrutiny of the police book required by section 5-401 to

maintained and made available for i ion at the princi

place of business. However, as i by the seventh circuit

in Bionic Auto Parts and Sales, Inc. v. Fahner, 721 F.2d 1072

(7th Cir. Sa geting ap ay le cage ns authorized by the IIli-

nois Vehicle Code are to be credible deterrent, the idenintiens

must be unannounced. /d. at 1078. Cf Donovan v. Dewey, 452 U.S.

594, 603 (1981) (Mine Safety and Health Act); United States v.

Biswell, 406 U.S. 311, 316 (1972) (Gun Control Act). This deter-

rent function would be rendered ineffective if licensees could

— immediate premises searches by the simple expedient of

ailing to tender all existing records at the time they are re-

a oe a arene onet ast Saeee, & weed have

lined to address the constitutionality of section 5-401(e) particu-

larly where the legislation had since been amended. See Li

v. Zoning Board of Appeals, 8 Ill. 2d 254, 1383 N.E.2d 266 (1956).

~~

The following day, in an unrelated action for injunctive

relief fied pursuant to 42 U.S.C. § 1983, the Honorable

Milton I. Shadur of the United States District Court for

the Northern District of Illinois held section 5-401(e) to

violate the fourth amendment. Bionic Auto Parts and

Sales, Inc. v. Fahner, 518 F. Supp. 582 (N.D. Ill. 1981).

Judge Shadur agreed with state officials there that the

nature of the used auto parts business in Illinois justifies

regulation by statutes which might not be amenable to

effective enforcement if impromptu warrantless searches

were not authorized. Accordingly, the fourth amendment

does not preclude such inspections where “ ‘the statute’s

inspection program, in terms of the certainty and regu-

larity of its application, provides a constitutionally ade-

quate substitute for a warrant.’” Jd. at 585 [quoting

Donovan v. Dewey, 452 U.S. 594, 603 (1981)].

Judge Shadur then pointed out that the administrative

scheme approved in Dewey “required inspection of all

mines” pursuant to a specific schedule, whereas that

struck down by this Court in Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978), merely authorized premises inspec-

tions at »easonable times. 518 F. Supp. at 585. The judge

concluded that, as in Barlow’s, the Illinois statute’s au-

thorization of searches “at any reasonable time during the

night or day” did not sufficie :tly cireumscribe official

discretion as to when and whom to search. /d.®

6 The Illinois Supreme Court . People v. Krull, 107 Ill. 2d

107, 116, 481 N.E.2d 708, 707 (1985). Before the district court’s

ruling could be reviewed by the seventh circuit on appeal, the

statute was amended to require that inspections be “at any

time that business is being conducted or work is being performed

._ . or when the licensee or a representative of the licensee, other

than a mere custodian or watchman, is present”, that they not

exceed 24 hours in length, and that they occur no more than six

(Footnote continued on following page)

= =

Assuming the district court’s ruling to have been cor-

rect, Detective McNally cannot be properly charged with

knowledge that section 5-401(e) was constitutionally flawed.

Before initiation of the present prosecution, the Illinois

state courts had had only two occasions to address the

reasonableness of searches directed at the premises of

dealers licensed to buy and sell used motor vehicles or

vehicle parts. In People v. Levy, 370 Ill. 82, 17 N.E.2d

967 (1938), and People v. Allen, 407 Ill. 596, 96 N.E.2d

446 (1950), the Illinois Supreme Court held the searches

constitutional because the Uniform Motor Vehicle Anti-

Theft Act then in effect specifically provided that dealers

must maintain various records and, as a condition of li-

censing, “shall be deemed to have granted auth»rity to

any peace officer to examine such records, and any motor

vehicle, or parts or accessories in his place of business

at any reasonable time during the day or night.” Ill. Rev.

Stat., ch. 954, § 87(a) (1937). This search provision is the

predecessor to section 5-401(e). Northern Illinois Auto-

mobile Wreckers and Rebuilders Ass’n v. Dixon, 75 Il.

2d 53, 387 N.E.2d 320 (1979).

Twenty years later in Colonnade Catering Corp. v. United

States, 397 U.S. 72 (1970), this Court found that because

regulation of the liquor industry had strong historical

rvots, Congress held the power to make criminal a liquor

licensee’s failure to permit a warrantless inspection of his

inventory. Colonnade’s emphasis on an industry’s per-

vasive regulation was reiterated in United States v.

Biswell, 406 U.S. 311 (1972), where legislation providing

® continued

times in any six-month period. Ill. Rev. Stat., cl. 95%, § 5-403(4),

(5), and (7) (1983). The seventh circuit found these amendments

to adequately limit the intrusiveness of the search and official

discretion in its implementation. Bionic Auto Parts and Sales, Inc.

v. Fahner, 721 F.2d 1072, 1080 (7th Cir. 1983).

—-

for the warrantless inspection of premises upon which fire-

arms are imported, manufactured, collected or dealt was

ruled constitutional. In support of its determination that

these administrative searches are not unreasor.able under

the fourth amendment, this Court reasoned that the searches

furthered urgent governmental interests and that licensees

choosing to engage in extensively regulated industries do

so with the knowledge that their records and inventory

will be subject to inspection. Jd. at 315, 316. Significant-

ly, neither the statute at issue in Colonnade [26 U.S.C.

§ 5146(b)] nor that addressed in Biswell [18 U.S.C. § 923(g)]

mandated that inspections be made or circumscribed the

timing of the searches other than to require that they

be conducted “during busin: ss hours.”

This Court’s decision in Marshall v. Barlow’s, Inc., 436

U.S. 307 (1978), appeared to characterize the reaffirmed

Colonnade-Biswell exception to the warrant requirement

as one based upon the effective consent granted by the

entrepreneur in a particular industry as a result of its

long history of governmental regulation. Jd. at 312, 313.

See also id. at 336-38 (Stevens, J., with whom Blackmun,

J., and Rehnquist, J., join, dissenting). Subsequent to

Barlow’s, this or a similar rationale was held to support

warrantless administrative searches in a variety of con-

texts.?7 However, in an opinion issued two weeks before

7 See, e.g., United States v. New England Grocers Supply Co.,

488 F. Supp. 230 (D. Mass. 1980) (food industry); United States

a hPL aS Fd Ry hg dg

me , P

570, 155 Cal. Rptr. (1979) —— home industry); State v.

Barnett, 389 So.2d 352 (La. 1980) ( prope industry). None

of the statutes addressed in these cases mandated inspection. Nor

did they limit the - aapetes Cues ee core Se

it be “Teasonable. . e the parlor inspection statute

at issue in Pollard v. Cockrell, 578 F.2d 1002 (5th Cir. 1978), did

(Footnote continued on following page)

=x

the search conducted by Detective McNally, this Court

in Donovan v. Dewey, 452 U.S. 594, 603 (1981), clarified

that the ultimate concern is the pervasiveness and regu-

larity of the statutory scheme. Jd. at 606. See also id.

at 607 (Stevens, J., concurring).

As recognized by the seventh circuit in Bionic, it is un-

disputed that Illinois has long subjected the business of

automotive parts and scrap processors to extensive scruti-

ny through licensing and other regulatory requirements.

721 F.2d at 1079. Further, the State has a strong interest

in the prevention of stolen motor vehicle sales which is

served by the Motor Vehicle Code’s record-keeping pro-

visions and its authorization of frequent, impromptu war-

rantless inspections for the purpose of verifying the ac-

curacy of those records required to be maintained. /d. at

1077, 1078. It is therefore clear that prior to Dewey the

Illinois statute was a candidate for automatic invocation

of the Colonnade-Biswell exception.®

7 continued "= the Oh

require that the p remises ced ogee on y” cir-

cuit’s reliance upon City Bem ianapolis v. Wright 371 N.E.2d

1998 (Ind. 1978), suggests that the mandatory nature of the statute

was not deemed material. Similarly, aoa pects pursuant

Cal. _ 3d 440, 153 Cal. Rptr. 396 (1979) (vehicle ‘dismantling

industry).

8 At the time of the search conducted here, at least five states

had enacted statutes authorizing warrantless inspections directed

at the used automobile and automotive parts industry which

neither mandated nor limited the ncy or hours of inspec-

tion. See Ariz. Rev. Stat., § 28-1307(c) (1952); Colo. Rev. Stat.,

§ 42-5-105(1) (1963); Del. Code, Title 21, § 6717 (Supp. 1977); Hawaii

Rev. Stat., § 289-6 (1976); Tex. Veh. ‘Code Ann., § 6687-2 (1977).

—20—

Even if Detective McNally may be charged with knowl-

edge of so recent an opinion, perusal of Dewey does not

compel a finding that section 5-401(e) contravenes the

fourth amendment. While Dewey did emphasize the man-

datory schedule statutorily imposed upon inspections con-

ducted pursuant to section 103(a) of the Federal Mine

Safety and Health Act, 30 U.S.C. § 813(a) (1976 ed., Supp.

III), it did not suggest that the statutes at issue in Colon-

nade and Biswell were rendered unconstitutional because

they did not require inspections at specified intervals. And

while the statutes addressed in those cases did limit in-

spections to reasonable business hours, that upheld in

Dewey placed no cap on the frequency of inspection, nor

did it limit the hours of inspection. Under these circum-

stances, it was reasonable for peace oificer McNally to

believe that the Illinois statute’s presumptive validity re-

mained intact despite its failure to mandate inspections

or circumscribe official discretion in determining the rea-

sonableness of an inspection’s frequency or hours. Indeed,

even members of the post-Dewey judicial branch have ex-

pressly or impliedly refused to find these alleged inade-

quacies fatal to similar statutes authorizing the warrant-

less administrative search of business premises. See, e.g.,

United States v. Jamieson-McKames Pharmaceuticals,

651-F.2d 532 (8th Cir. 1981), cert. denied, 455 U.S. 1016

(1982) [construing the Food, Drug and Cosmetic Act, 21

U.S.C. § 374(a)]; United States v. Gel Spice Co., 601 F.

Supp. 1214 (E.D.N.Y. 1985) (same); Kim v. Dolch, 219 Cal.

Rptr. 248 (Cal. App. 4th Dist. 1985) (construing city ordi-

nance regulating massage parlors); Peterman v. Coleman,

764 F.2d 1416 (11th Cir. 1985) (construing city ordinance

regulating pawn brokers).

In United States v. Leon, __.. U.S. ___, 104 S.Ct.

3405, 3421, 3422 (1984), this Court noted that although

reliance on a warrant will normally suffice to establish

- =

law enforcement’s good faith, the suppression of evidence

remains an appropriate remedy where the officer has

acted “in reckless disregard of the truth,” the magistrate

has “wholly abandoned” his judicial role, or where the

warrant’s particularity or probable cause foundation is so

deficient as to render official belief in its validity ‘‘en-

tirely” unreasonable. Without question there exists in the

present case no like cause for Detective McNally to have

known that the inspection of respondent Krull’s business

premises was constitutionally infirm. The search, made

pursuant to a long-standing state statute which did not

clearly contravene the fourth amendment, was conducted

in good faith. Application of the exclusionary rule, which

would not only hinder the truth-seeking function of the

factfinder but effectively preclude the prosecution of re-

spondents altogether, cannot be justified.

CONCLUSION

For the foregoing reasons, the People of the State of

Illinois respectfully request that the decision of the Illi-

nois Supreme Court suppressing evidence be reversed.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT *

Assistant Attorney General

Counsel for Petitioner

Marcia L. FRIEDL

Assistant Attorney General

Of Counsel * Counsel of Record