# Petitioners Brief — Illinois v. Krull

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1987
- **Citation:** 480 U.S. 340

## Text

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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0454%3A5. Public record. Not legal advice.