Petition for Writ of Certiorari — Illinois v. Madison

87-2006.

No. { Suoreme Quart, US,

‘IELED

UN 3 1988

In THE

JOSEPH F. SPANIOL, JF

CLERK

Supreme Court of the Anited S

OctoreR TERM, 1987

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

VS.

LOWELL MADISON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

NEIL F. HARTIGAN

Attorney General, State of Llinois

TERENCE M. MADSEN *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2235

Counsel for Petitioner

Tony Braseu

State’s Attorney

Iroquois County Courthouse

Watseka, Illinois 60970

JoHn X. BRESLIN

Deputy Director

Gary F. Gnipovec

Staff Attorney

State’s Attorneys Appellate Prosecutor

628 Columbus Street, Suite 402

Ottawa, Illinois 61350

(815) 484-7010

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 34109—60—6-3-88)

i

QUESTION PRESENTED FOR REVIEW

Should the Good-Faith exception to the Fourth Amend-

ment exclusionary rule apply to evidence obtained by

police who acted in objectively reasonable reliance upon

an opinion of an intermediate appellate court?

il

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...

TABLE OF AUTHORITIES ..............4..

OPINION BEGAIW q5.cc i cccscccucseeawaswnes

JURIRDICTIIN onc cc docs eiensan enereewe ween

STATUTES INVOLVED .......ccscccscceees

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

REASON FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI .............

THE GOOD-FAITH EXCEPTION TO THE EX-

CLUSIONARY RULE APPLIES TO EVIDENCE

WHICH IS OBTAINED BY POLICE WHO

HAVE ACTED IN OBJECTIVELY REASON-

ABLE RELIANCE UPON AN OPINION OF

AN INTERMEDIATE APPELLATE COURT ..

CONCLUSION .occk4gpucnsdeeeeeeeuseaeeares

APPENDIX

A—Transcript of Proceedings Before Honorabie

Dwight W. McGrew on December 9, 1985 ...

B— Opinion of the Appellate Court of Illinois,

Third Judicial District .......ceccscsdatices

C— Opinion of the Supreme Court of Illinois ..

D— Order of the Supreme Court of Illinois Deny-

ing Petition for Rehearing ................

or

La 8 |

C-1

iil

TABLE OF AUTHORITIES

Cases PAGE(s)

Illinois v. Krull, 480 U.S. ___., 107 S.Ct. 1160, 94

MEE REEDED cncccccvecssccvcsecees passim

Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct.

SAAA, SZ L.Ed.2d 737 (1984) ...........000. 6

People v. Madison, 149 Ill. App. 3d 592, 500 N.E.

2d 1034, 102 Ili. Dec. 933 (8d Dist. 1986) .... 8,9, 11

People v. Potter, 140 Ill. App. 3d 693, 489 N.E.2d

334, 95 Ill. Dec. 113 (8d Dist. 1986) ...... passim

United States v. Leon, 486 U.S. 897, 104 S.Ct.

3405, 82 L.Ed.2d 677 (1984) .............. passim

Other Authorities

Ill. Rev. Stat. 1983, ch. 95%, par. 4-104(aX2) .. 5

Ill. Rev. Stat. 1983, ch. 95%, par. 5-401.2 ..... 4

Ill. Rev. Stat. 1983, ch. 95%, par. 5-403 ..... passim

In THE

Supreme Court of the Anited States

OctosEer Term, 1987

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

Vs.

LOWELL MADISON,

Respondent.

+

—

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

OPINION BELOW

The opinion of the Appellate Court of Illinois, Third

Judicial District, is reported at 149 Ill. App. 3d 592, 500

N.E.2d 1034 (3d Dist. 1986) (See Appendix B). The opin-

ion of the Supreme Court of Illinois is reported at 121

Ill. 2d 195, 520 N.E.2d 374 (1988) (See Appendix C). The

summary order of the Supreme Court of Illinois denying

the petition for rehearing is not reported, but is attached

hereto (See Appendix D).

aie

JURISDICTION

The opinion of the Illinois Appellate Court, Third Judi-

cial District, was filed on November 18, 1986. A timely

petition for leave to appeal was filed by petitioner in the

Illinois Supreme Court. On April 15, 1987, the Supreme

Court of Illinois allowed the People’s petition for leave

to appeal. The opinion of the Supreme Court of Illinois

was filed on February 11, 1988. A timely petition for re-

hearing was filed by petitioner in the Illinois Supreme

Court on March 3, 1988. On April 5, 1988, the Illinois Su-

preme Court entered an order denying the People’s peti-

tion for rehearing.

This court’s jurisdiction is invoked under 28 U.S.C. sec-

tion 1257(3). The instant petition for writ of certiorari is

filed within 60 days of the Illinois Supreme Court’s order

denying petitioner’s petition for rehearing. United States

Supreme Court Rule 20; 28 U.S.C. section 1257(3). The

decision of the Supreme Court of Illinois on the issue here

raised was premised upon federal constitutional grounds

and does not rest upon any independent state ground.

STATUTES INVOLVED

Illinois Revised Statutes 1983, chapter 95%, paragraph

5-403 provides that:

5-403. (1) Authorized representatives of the Secretary

of State’s Department of Police, other peace officers, and

such other individuals as the Secretary may designate

from time to time shall make inspections of individuals

—_,

and facilities licensed under Chapter 5 of the Illinois Vehi-

cle Code for the purpose of reviewing records uired

to be maintained under Chapter 5 for accuracy and com-

pleteness and reviewing and examining the premises of

the licensee’s established place of business for the pur-

= of determining the accurary of the required records.

mises that may be inspected in order to determine the

accuracy of the books and records required to be kept

includes all premises used by the licensee to store vehicles

and parts that are reflected by the required books and

records.

(2) Persons having knowledge of or conducting inspec-

tions pursuant to this Chapter shall not in advance of such

inspections knowingly notify a licensee or representative

of a licensee of the contemplated inspection unless the Sec-

retary or an individual designated by him for the pur-

pose authorizes such notification. Any individual who,

without authorization, knowingly violates this subpara-

graph shall be guilty of a Class C misdemeanor.

(3) The licensee or a representative of the licensee shall

be entitled to be present during an inspection conducted

pursuant to Chapter 5, however, the presence of the li-

censee or an sutherinel representative of the licensee is

not a condition precedent to such an inspection.

(4) Inspection conducted pursuant to Chapter 5 may be

initiated at any time that business is being conducted or

work is being performed, whether or not open to public

or when the licensee or a representative of the licensee,

other than a mere custodian or watchman, is present. The

fact that a licensee or representative of the licensee leaves

the licensed premises after an inspection has been initi-

ated shall not require the termination of the inspection.

(5) Any inspection conducted pursuant to Chapter 5

shall not continue for more than 24 hours after initiation.

(6) In the event information comes to the attention of

the individuals conducting an inspection that may give rise

to the necessity of obtaining a search warrant, and in the

event steps are initiated for the procurement of a search

a

warrant, the individuals conducting such inspection may

take all necessary steps to secure the premises under in-

spection until the warrant application is acted upon by

a judicial officer.

(7) No more than 6 inspections of a premises may be

conducted pursuant to Cheater 5 within any 6 month

riod except pursuant to a search warrant. Notwithstand-

ing this limitation, nothing in this subparagraph shall be

construed to limit the authority of law enforcement agents

to respond to public complaints of violations of the Code.

For the purpose of this subparagraph, a public complaint

is one in which the complainant identifies himself or her-

self and sets forth, in writing, the specific basis for their

complaint against the licensee.

(8) Nothing in this Section shall be construed to limit

the authority of individuals by the Secretary pursuant to

this Section to conduct searches of licensees pursuant to

a duly issued and authorized search warrant.

STATEMENT OF THE CASE

OE ooo

On May 7, 1984, Secretary of State police officers Thomp-

son and Pashal conducted a regulatory inspection of the

Madison Salvage Yard located at Rural Route 1, Stateline

Road, Sheldon, Illinois. The regulatory inspection was con-

ducted pursuant to Illinois Revised Statutes 1983, chapter

95%, paragraph 5-401.2 and paragraph 5-403. With respect

to the officers’ primary duty of enforcing the I!linois Vehi-

cle Code which includes the inspection of records, the offi-

cers requested that defendant permit them to review his

business records. According to Officer Thompson, these

records were kept in a school bus which was used by de-

fendant as an office. Defendant consented to the request

and voluntarily gave the business records to the officers.

ow

After completing an inventory of the salvage yard, the

officers inspected defendant’s records. The records in-

cluded, inter alia, certificates of title. During the course

of their review of defendant’s business records, 26 certifi-

cates of title with incomplete assignments were discov-

ered. Upon completion of their review of defendant’s busi-

ness records, the officers retained possession of the 26

unlawfully-assigned titles. They issued a written receipt

for the titles to defendant.

Subsequently, on May 23, 1984, 26 criminal complaints

were filed against defendant charging that his possession

of the 26 certificates of title with incomplete assignments

violated Illinois Revised Statutes 1983, chapter 95%, para-

graph 4-104(aX2). (C. 3-28) On the day that the matter had

been set for a jury trial, defendant filed a motion to sup-

press. The motion to suppress was heard simultaneously

with the jury trial. Upon completion of the People’s evi-

dence, the trial judge granted defendant’s motion to sup-

press. Insofar as the prosecutor was unable to proceed

with the case as a result of the suppression order, the

trial judge dismissed the case. (C. 2) Subsequently, the

prosecutor filed a timely notice of appeal. (C. 36-37)

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

THE GOOD-FAITH EXCEPTION TO THE EXCLUSION-

ARY RULE APPLIES TO EVIDENCE WHICH IS OB-

TAINED BY POLICE WHO HAVE ACTED IN OBJEC-

TIVELY REASONABLE RELIANCE UPON AN OPINION

OF AN INTERMEDIATE APPELLATE COURT.

In United States v. Leon, 486 U.S. 897, 104 S.Ct. 3405,

3418-21, 82 L.Ed.2d 677 (1984), this Court ruled the

Fourth Amendment exclusionary rule did not apply to evi-

es

sain

dence obtained by police officers who acted in objective-

ly reasonable reliance upon a search warrant issued by

a neutral magistrate but which was subsequently found

to be unsupported by probable cause. (See also Massachu-

setts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 3427-29,

82 L.Ed.2d 737 (1984)). Subsequently, in Illinois v. Krull,

480 U.S. ___, 107 S.Ct. 1160, 1167-68, 94 L.Ed.2d 364 |

(1987), this Court ruled that the Fourth Amendment exclu-

sionary rule did not apply to evidence obtained by police

who acted in objectively reasonable reliance on a statute

authorizing warrantless administrative searches but which

was subsequently found to violate the Fourth Amend-

ment. Adhering to the rationale of Leon and Krull, the

petitioner submits that the good-faith exception to the ex-

clusionary rule is controlling in the situation wherein

police officers act in objectively reasonable reliance upon

an opinion of an intermediate appellate court interpret-

ing a state statute, and that opinion is subsequently

altered in a later decision. The instant case presents such

a factual scenario.

In People v. Potter, 140 Ill. App. 3d 693, 489 N.E.2d

334, 95 Ill. Dec. 113 (3d Dist. 1986), the court was called

upon to interpret the administrative search provision of

Illinois Revised Statutes 1983, chapter 95%, paragraph

5-403. In Potter, local law enforcement sought to justify

a search of an automobile dealership under the inspection

provision of chapter 95%, paragraph 5-403. However, the

appellate court determined that the search ran afoul of

the statute’s specific provisions. In interpreting the war-

rant provision of paragraph 5-403(6), the court concluded

as follows:

What truly concludes the matter, however, is Sec- |

tion 5-408 itself. . . Reading subsections (5), (6), and

(8) together, the statutory import is clear: if within

= we

24 hours information is uncovered which might give

an officer probable cause to believe an offense has

been committed, a search warrant should be obtained

before any further searching or seizing is attempted.

This was totally disregarded in the search of J&J

Auto Sales. The search went well beyond 24 hours

and long after evidence of criminal activity had been

uncovered. . . . [489 N.E.2d at 337]

Thus, the conclusion drawn by the appellate court respect-

ing paragraph 5-403(6)’s warrant requirement was that

it was applicable only in those situations where an in-

spection would exceed the initial 24-hour time limitation

contained in paragraph 5-403(5) and police had obtained

probable cause to believe that there was criminal activity.

This interpretation of the statute by the appellate court

in Potter is bolstered by the fact that the appellate justice

who authored Potter also penned a dissenting opinion in

the instant case in which he stated:

The majority’s reliance on People v. Potter (3d Dist.

1986), 140 Ill. App. 3d 693, is misplaced. In the in-

stant case, the Secretary of State police conducted

a routine inventory inspection of the defendant’s

premises and business records. The search was con-

ducted in compliance with section 5-403 of the IIli-

nois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95%, par.

5-403), since it was performed for the purpose of re-

viewing records for accuracy and completeness, was

initiated during regular business hours, and conducted

for less than 24 hours as mandated by the statute.

While conducting the inspection, the officers discov-

ered 26 certificates of titles with incomplete assign-

ments, which they seized after giving the defendant re-

ceipts. The officers then left the defendant’s premises.

A search warrant here would have been totally

superfluous. The officers merely seized the certificates

they discovered during the course of their administra-

~~

tive search. They intended to do no further search-

ing as their inspection had already been completed.

[People v. Madison, 149 Ill. App. 3d 592, 500 N.E.2d

1034, 1038-39, 102 Ill. Dec. 933 (8d Dist. 1986).]

Thus, the appellate court’s decision in Potter defined the

parameters of the warrant requirement of paragraph 5-

403(6). As a result of the court’s interpretation of the war-

rant requirement of paragraph 5-403(6), the Secretary of

State’s police reasonably relied upon that interpretation

in formulating their procedures as to what they could and

could not do with respect to an administrative inspection

conducted pursuant to paragraph 5-403.

Subsequently, in the instant case, the appellate court

again was called upon to address the administrative in-

spection procedure of paragraph 5-403. Specifically, the

court was called upon to address the seizure of the 26

vehicle certificates of title with incomplete assignments.

The issue presented was whether the Secretary of State’s

police were required under paragraph 5-403(6)’s warrant

requirement to obtain a warrant to seize the certificates

of title once discovered. The appellate court initially con-

curred with Potter’s original interpretation of paragraph

5-403. However, the court then ruled that Potter further

ruled that, once the opened certificates of title were dis-

covered, the police were required to obtain a search war-

rant before seizing the titles. Madison, 500 N.E.2d at

1037. The latter ruling by the court was clearly beyond

the original decision of Potter. As noted by the author-

ing justice in Potter in his dissenting opinion in the in-

stant case, Potter made no such ruling with respect to

paragraph 5-403(6)’s warrant requirement. As a result, the

appellate court’s holding in Madison substantively altered

the interpretation of paragraph 5-403(6) that had been

issued originally in the former opinion of Potter.

= oe

Certainly, the Secretary of State’s police justifiably

relied upon the appellate court’s interpretation of para-

graph 5-403(6)’s warrant requirement in Potter. Under the

Potter interpretation, a warrant was not required to seize

open certificates of title found by the officers during the

course of a valid administrative inspection. The Secretary

of State’s police had no way of knowing that the Potter

interpretation of paragraph 5-403(6) was erroneous or other-

wise so unreasonable that no one could reasonably rely

upon that opinion as expressing the true intent of the

statute’s warrant requirement. As such, the good-faith ex-

ception to the Fourth Amendment exclusionary rule seems

particularly pertinent here since the officers’ reliance on

the appellate court’s interpretation of the statute’s war-

rant requirement was objectively reasonable.

In addressing the petitioner’s good-faith exception argu-

ment, the appellate court ruled that the exception was

inapplicable. Specifically relying upon the facts of Leon,

the court concluded that the good-faith exception was

limited strictly to Fourth Amendment violations resulting

from searches conducted pursuant to a technically invalid

warrant. Since the search conducted in the case at bar

was done without a search warrant, and since no search

warrant ever issued, the court found the exception inappli-

cable. Madison, 500 N.E.2d at 1038.

It is now evident that the appellate court’s limitation

of the good-faith exception strictly to cases involving

searches conducted pursuant to technically invalid war-

rants is erroneous. Illinois v. Krull, 107 S.Ct. 1167-68.

It appears that the logic and approach of Leon is appli-

cable to those situations in which police act in objective

reliance upon something which apparently gives them the

authority to act in a particular manner. In Leon, it was

a search warrant. In Krull, it was a statute. Despite the

_

fact that the warrant or statute is later found invalid, the

fact that the officers acted in reasonable objective reliance

upon these items precluded the application of the exclu-

sionary rule to the evidence uncovered during the course

of what eventually was found to be illegal police conduct.

So too, the logic of Leon certainly applies to the instant

situation wherein police objectively relied upon an inter-

pretation of paragraph 5-403(6)’s warrant requirement. Al-

though the interpretation of the statute was subsequently

expanded in a later appellate court opinion, this does not

render the police reliance upon the former opinion inter-

preting the statute unreasonable. Hence, the appellate

court’s ruling with respect to the application of the good-

faith exception to the exclusionary rule is erroneous.

As in the appellate court, one of the issues asserted by

the petitioner on appeal to the Supreme Court of Illinois

was the applicability of the good-faith exception to the

exclusionary rule. As in the appellate court, the petitioner

maintained that the Secretary of State’s police reliance

upon the earlier determination in Potter precluded applica-

tion of the exclusionary rule to the evidence in this case.

However, in addressing the petitioner’s good-faith argu-

ment presented, the Illinois Supreme Court stated as

follows:

Obviously, Leon and Krull are not controlling here,

as the police officers in this case were neither rely-

ing on an invalid warrant nor on a statute later held

to be unconstitutional. Instead, the State argues that

we should extend the good-faith exception to situa-

tions where a police officer reasonably relies on his

own interpretation of a valid statute in conducting

a search and seizure, when that statute is later judi-

cially interpreted to prohibit such seizure.

=

We reject the State’s argument because under Leon

and Krull the officer’s good faith alone is not suffi-

cient to validate the search and seizure; the author-

ity of a seemingly valid warrant or statute. Here,

there is no such reliance, but quite the opposite. The

officers were acting in defiance of, not reliance on,

the language of a statute limiting the authority of of-

ficers to inspection of the premises and a records check

for accuracy and completeness.

Moreover, to adopt the extension of the good-faith

exception proposed by the State would essentially

eviscerate the exclusionary rule as it is currently en-

forced. Police officers would be encouraged to defy

the plain language of statutes as written in favor of

their own interpretations in conducting searches and

seizures. Such a proposal, giving the police unlimited

authority to conduct searches and seizures until speci-

fically restricted by the legislature or the courts, is

fundamentally at odds with the central purpose of

deterring police conduct which underlies the exclu-

sionary rule. [People v. Madison, 520 N.E.2d 380].

It is evident from the above quoted material that the IIli-

nois Supreme Court’s treatment of the petitioner’s good-

faith contention is erroneous for two reasons.

First, the Illinois Supreme Court makes the same error

that it did in Kruil, that is, attempting to factually limit

Leon and Krull to situations involving either invalid

search warrants or unconstitutional statutes. However, as

this court’s opinion in Krull indicates, application of the

good-faith exception necessarily is not limited to these

specific situations. The good-faith rationale of necessity

requires that an officer’s conduct be bottomed upon some

objective justification for that conduct. It must be some-

thing other than his own subjective belief or interpreta-

tion. If an objective factor exists upon which the officer

premises his conduct then the good-faith exception will

_ =

preclude exclusion of evidence when the objective factor

for his conduct is found illegal. Thus, the Illinois Supreme

Court has inappropriately analyzed the good-faith excep-

tion Argument here presented much as it did in Krull.

Secondly, the Illinois Supreme Court’s characterization

of the petitioner’s argument is clearly erroneous. Neither

in their brief nor at oral argument did the petitioner ever

suggest that the officer’s subjective interpretation of a

statute sufficiently warrants invocation of the good-faith

exception to the exclusionary rule. Such an interpretation

so clearly violates the underlying rationale of Leon and

Krull that it would never have been presented. This in-

terpretation of the People’s Argument by the Illinois Su-

preme Court is something that was simply not presented

by petitioner.

In the final analysis, petitioner submits that those situ-

ations in which police act in objectively reasonable reli-

ance upon an intermediate appellate court’s interpretation

of a statute which is later expanded or invalidated by a

subsequent court opinion covering the same statute clearly

fall within the parameters of the good-faith exception first

enunciated in Leon and later applied in Krull. It is an

anomalous situation to suggest that police reliance upon

a search warrant or statute is envisioned by the good-

faith exception but that police reliance upon an appellate

court decision would not be encompassed. Under the cir-

cumstances of this case, petitioner submits that this court

should grant the petition for writ of certiorari in order

to address the application of the good-faith exception to

the circumstances of this case.

~ =

CONCLUSION

For the reasons and argument stated herein, the peti-

tioners respectfully request that a writ of certiorari issue

to the Supreme Court of Illinois to review that court’s

decision which affirmed the judgment of the appellate

court with respect to the issue addressing the application

of the good-faith exception to the instant case.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

TERENCE M. MADSEN *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2235

Counsel for Petitioner

TONY BRASEL

State’s Attorney

Iroquois County Courthouse

Watseka, Illinois 60970

JOHN X. BRESLIN

Deputy Director

GaRY F. GNIDOVEC

Staff Attorney

State’s Attorneys Appellate Prosecutor

628 Columbus Street, Suite 402

P.O. Box 654

Ottawa, Illinois 61350

(815) 434-7010

Of Counsel * Counsel of Record

A-1

APPENDIX A

Transcript Of Proceedings Before Honorable

Dwight W. McGrew On December 9, 1985

* * * * *

(AFTER RECESS)

THE Court: Let the record show the Court is going

to allow Defendant’s motion to suppress. I do want to

state for the record it appears that the only statutory au-

thorization of the Secretary of State to seize records at

the time of an inspection might be, or well, it will only

be with regard to Section 2-111, that is the only thing

in the statute at all that provides for immediate seizure

of records-—-that provides for immediate seizure of rec-

ords—and based upon the testimony of Officer Thompson

that basically the defendant had no choice, he had to pro-

duce those records and the titles were taken from the

premises without the defendant’s permission. I could con-

template perhaps another situation where this would be

proper without a search warrant, that being if the seizure

was in conjunction with a legal arrest at the time, but

the record in and of itself discloses that the taking of the

titles from the defendant’s premises was on May 7, 1984.

There was no criminal charge made against the defendant

until some ten days later indicating that the seizure was

not in connection with an immediate arrest at the time

of the seizure of the documents. Now if there had been

permission by the defendant given the Secretary of State

officers that they could take the titles at that particular

time, there would have been no doubt that a search war-

rant would be necessary because they already had the evi-

dence which they were looking for from which the charges

A-2

arose in the case. But since the record does show that

the defendant had to produce the titles and that he did

not give permission to the officers to take them, then the

search warrant was required, so, on that basis the Court

is allowing the motion to suppress.

x* * * * *

B-1

APPENDIX B

Opinion Of The Appellate Court Of Illinois

Third Judicial District

[Filed November 18, 1986]

No. 3-86-0015

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

vs.

LOWELL MADISON,

Defendant- Appellee.

Appeal from the Circuit Court of the

12th Judicial Circuit, Iroquois County, Illinois.

Honorable Dwight W. McGrew, Presiding Judge.

Mr. JUSTICE STOUDER delivered the Opinion of the Court.

The defendant, Lowell Madison, was charged with 26

counts of possessing certificates of title with incomplete

assignment. (Ill. Rev. Stat. 1985, ch. 95%, par. 4-104(aX(2).)

The defendant moved to suppress the evidence on the

grounds that it was obtained through an illegal search and

seizure. The defendant’s motion was granted and the

charges were dismissed. The State appeals, contending

that the trial court erred in granting the defendant’s mo-

tion. We affirm.

B-2

The defendant was the owner-operator of a motor vehicle

salvage yard named Madison Salvage Yard. The Iroquois

County State’s Attorney’s Office had received numerous

complaints from neighbors living near the yard, apparently

concerning the general condition of the premises. The

State’s Attorney relayed the complaints to the Secretary

of State’s Office.

Around 1 p.m. on May 7, 1984, two Secretary of State

police officers went to the defendant’s salvage yard. At

the trial, Jim Thompson, one of the officers, testified that

the officers advised the defendant that they were to in-

spect his premises and records pursuant to a complaint.

Officer Thompson testified that the officers did not possess

a search warrant.

Officer Thompson further testified that following an in-

spection of the vehicles stored in the yard, the officers

asked to see the defendant’s business records. The officers

subsequently found 26 vehicle certificates of title with in-

complete assignments of title. Officer Thompson stated

that the officers took possession of the 26 certificates, giv-

ing the defendant a receipt for them. Officer Thompson

admitted that while the defendant cooperated with the

officers and did not object to the search, the defendant

never gave the officers permission to take the certificates.

On May 17, 1984, the defendant was charged with 26

counts of possession of certificates of title with incomplete

assignment. On December 9, 1984, the defendant filed a

pre-trial motion to suppress the certificates because they

were taken in violation of the Fourth Amendment prohibi-

tion against warrantless searches. The trial court granted

the motion and summarily dismissed the charges. The State

brings this appeal.

B-3

On appeal, the State contends that the trial court erred

in allowing the defendant’s motion because the search and

seizure of the certificates of title were not unreasonable.

The State musters a number of arguments in defense of

its contention.

First, the State argues that the search and seizure were

permitted under section 5-403 of the Illinois Vehicle Code.

(Ill. Rev. Stat. 1985, ch. 95%, par. 5-403.) The State argues

that section 5-403 provides authority for a valid warrant-

less search in the form of a records check.

Section 5-403 allows the Secretary of State to conduct

under certain restrictions, periodic warrantless inspections

of an automobile dealer’s premises and records. The rele-

vant part of section 5-403 of the Vehicle Code provides:

“(1) Authorized representative of the Secretary of

State including Officers of the Secretary of State’s De-

partment of Police, other peace officers, and such

other individuals as the Secretary may designate from

time to time shall make inspections of individuals and

facilities licensed or required to be licensed under

Chapter 5 of the Illinois Vehicle Code for the pur-

pose of reviewing records required to be maintained

under Chapter 5 for accuracy and completeness and

reviewing and examining the premises of the licensee’s

established place of business for the purpose of deter-

mining the accurary of the required records. Premises

that may be inspected in order to determine the ac-

curacy of the books and records required to be kept

includes all premises used by ike Wienses to store

vehicles and parts that are reflected by the required

books and records.

(4) Inspection conducted pursuant to Chapter 5

may be initiated at any time that business is being

conducted or work is being performed, whether or not

open to the public or when the licensee or a represen-

tative of the licensee, other than a mere custodian

es

* * *

B-4

or watchman, is present. The fact that a licensee or

representative of the licensee leaves the licensed

premises after an inspection has been initiated shall

not require the termination of the inspection.

(5) Any inspection conducted pursuant to Chapter

5 shall not continue for more than 24 hours after initia-

tion.

(6) In the event information comes to the atten-

tion of the individuals conducting an inspection that

may give rise to the necessity of obtaining a search

warrant, and in the event steps are initiated for the

procurement of a search warrant, the individuals con-

ducting such inspection may take all necessary steps

to secure the premises under inspection until the war-

rant application is acted upon by a judicial officer.

(7) No more than 6 inspections of a premises may

be conducted pursuant to Chapter 5 within any 6

month period except pursuant to a search warrant.

Notwithstanding this limitation, nothing in this sub-

paragraph shall be construed to limit the authority

of law enforcement agents to respond to public com-

plaints of violations of the Code. For the purpose of

this subparagraph, a public complaint is one in which

the complainant identifies himself or herself and sets

forth, in writing, the specific basis for their complaint

against the licensee.

(8) Nothing in this Section shall be construed to

limit the authority of individuals by the Secretary pur-

suant to this Section to conduct searches of licensees

pursuant to a duly issued and authorized search war-

rant.” Ill. Rev. Stat. 1985, ch. 95%, par. 5-403.

In People v. Potter (8rd Dist., 1986), 140 Ill. App. 3d

693, 489 N.E.2d 334, this court discussed section 5-403.

We held, pursuant to subsections (5), (6) and (8) of sec-

tion 5-408, that “if within 24 hours information is uncov-

ered which might give an officer probable cause to believe

an offense has been committed, a search warrant should

B-5

be obtained before any further searching or seizing is at-

tempted.”’ 140 Ill. App. 3d 693, 697-98, 489 N.E.2d 334,

337.

In the case at bar, we agree with the State that under

section 5-403 the Secretary of State possessed the author-

ity to inspect the defendant’s premises and business rec-

ords. A review of the record reveals that the officers con-

ducted their inspection in compliance with section 5-403.

However, under Potter we find that when the officers dis-

covered the certificates with incomplete assignments, they

should have obtained a search warrant before attempting

to seize them. This they failed to do, thereby rendering

the seizure of the certificates unlawful.

The State also contends that the search and seizure

were not unreasonable considering the minimal intrusion,

the cooperative conduct of the defendant, and the lesser

justifiable expectation of privacy for scrap processors. We

disagree.

First, the intrusion was more than minimal because, as

stated earlier, while the investigation of the defendant’s

yard was properly conducted within section 5-403, the

seizure of the certificates was not lawful. Second, while

the defendant cooperated with the officers during the in-

vestigation, he never gave his permission to either con-

duct the investigation or seize the certificates. It is well

settled that mere acquiescence to authority of police does

_ not constitute consent. (Bumper v. North Carolina (1968),

391 U.S. 543, 20 L. Ed.2d 797, 88 S. Ct. 1788.) Third,

while the defendant, as a scrap processor, may have had

a lesser justifiable expectation of privacy than a person

in a private dwelling in a criminal search, this was an

administrative investigation where the procedures to con-

duct the investigation and any possible seizure of evidence

are specifically governed by statute.

B-6

The State argues that in addition to section 5-403, the

Secretary of State is authorized under section 2-111 of

the Vehicle Code to take possession of unlawfully issued

certificates of title. Specifically, the State argues that the

certificates of title in question were unlawfully issued to

the defendant because the titles lacked complete assign-

ment.

Section 2-111 provides as follows:

“Seizure of documents and plates. The Secretary

of State is hereby authorized to take possession of

any certificate of title, registration card, permit, li-

cense, registration place, plates, or registration

sticker issued by him upon expiration, revocation,

cancellation or suspension thereof, or which is fic-

titious, or which has been unlawfully or erroneously

issued. Police officers who have reasonable grounds

to believe that any item or items listed in this sec-

tion should be seized shall request the Secretary of

State to take possession of such item or items.”’ II.

Rev. Stat. 1985, ch. 95%, par. 2-111.

We disagree with the State’s interpretation of section 2-111.

We read the section to permit the Secretary of State to

take possession of certificates unlawfully issued by the

Secretary of State but not to support the instant seizure.

Here, this section did not give the officers authority to

seize certificates of title that were in fact lawfully issued

by the Secretary of State.

The State argues additionally that in any event a war-

rant was not necessary because there were exigent cir-

cumstances. The State contends that had the officers left

the certificates with the defendant, he could have filled

in the blank assignment sections. The State also points

out that the inspection began in the afternoon. The State

claims that at the time by which the inspection was to

B-7

be completed, it would have been too late to obtain a

search warrant. An officer would have been required to

stay overnight to secure the premises. Therefore, the State

concludes, there were exigent circumstances such that a

warrantless seizure was constitutionally permissible.

The validity of a warrantless search and seizure must

be determined on the basis of whether the State has

shown that the exigencies of the situation made that

course of conduct imperative. (People v. Loggins (1st Dist.,

1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) The State

has failed to prove that the situation was imperative to

justify a warrantless seizure. Other than the assertion by

the State in its brief, there is nothing before us to indi-

cate that the officers had insufficient time to return to

get a search warrant before the courthouse closed. We

find that exigent circumstances did not exist to permit

the warrantless seizure of the certificates.

The State’s next argument, that the certificates were

taken in the plain view of the officers, is without merit.

As an exception to the prohibition against warrantless

searches, the plain view doctrine requires, inter alia, that

the evidence come inadvertently into the officer’s view.

(People v. Columbo (1st Dist., 1983), 118 Ill. App. 3d 882,

455 N.E.2d 733.) In the instant case, it can hardly be said

that the certificates came inadvertently into the officer’s

view. The purpose of the search was to inspect the defen-

dant’s business records, including any certificates of title

in his possession.

Finally, the State argues that the good faith exception

to the exclusionary rule should apply. This exception ap-

plies only to good faith viclations of the Fourth Amend-

ment resulting from searches conducted pursuant to tech-

nically invalid warrants. (U.S. v. Leon (1984), 468 U.S.

B-8

___, 82 L. Ed. 2d 677, 104 S. Ct. 3405.) Here, the excep-

tion is inapplicable because the search was conducted with-

out a search warrant, nor was such 4 warrant ever issued.

Based on the foregoing, we find that the trial court

properly excluded the certificates of title from evidence

on the grounds that they were obtained through an in-

valid, warrantless seizure.

Accordingly, the judgment of the circuit court of Iro-

quois County is affirmed.

Affirmed.

SCOTT, P.J., concurs.

HEIPLE, J., dissents.

B-9

Mr. JUSTICE HEIPLE dissenting:

The majority’s reliance on People v. Potter (3rd Dist.,

1986), 140 Ill. App. 3d 693 is misplaced. In the instant

case, the Secretary of State police conducted a routine

regulatory inspection of the defendant’s premises and busi-

ness records. The search was conducted in compliance

with section 5-403 of the Illinois Vehicle Code (Ili. Rev.

Stat. 1985, ch. 95%, par. 5-403) since it was performed

for the purpose of reviewing records for accuracy and

completeness, was initiated during regular business hours,

and continued for less than 24 hours as mandated by the

statute. While conducting the inspection, the officers dis-

covered 26 certificates of title with incomplete assign-

ments, which they seized after giving the defendant re-

ceipts. The officers then left the defendant’s premises.

A search warrant here would have been totally superflu-

ous. The officers merely seized certificates they discovered

during the course of their administrative search. They in-

tended to do no further searching as their inspection had

already been completed.

The facts in Potter are vastly different. In Potter, the

Secretary of State police suspected the defendants had

engaged in illegal activities. Since they were unable to

obtain a search warrant, they conducted a “fishing expedi-

tion’ under the guise of a section 5-403 administrative

search which continued for five days, long after criminal

activity was discovered. On those facts, we held that “‘if

within 24 hours information is uncovered which might give

an officer probable cause to believe an offense had been

committed, a search warrant should be obtained before

any further searching or seizing is attempted.” 140 III.

3d 693, 697-98, 489 N.E.2d 334, 337.

B-10

A search warrant in cases involving facts similar to

those in Potter serves to ensure that the fourth amend-

ment’s prohibition against unreasonable searches and seiz-

ures is not violated. A search warrant in circumstances

such as those presented in the instant case serves no

useful purpose and will only thwart the attempts of of-

ficers seeking to guarantee compliance with the Illinois

Vehicle Code. The defendant’s rights were not violated

by this search and seizure.

Therefore, I dissent from the holding of the majority

and would reverse the trial court.

C-1

APPENDIX C

Opinion Of The Supreme Court Of Illinois

(No. 64584.—Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,

v. LOWELL MADISON, Appellee.

Opinion filed February 11, 1988.—Rehearing

denied April 5, 1988.

JUSTICE SIMON delivered the opinion of the court:

On May 17, 1984, defendant was charged with 26 counts

of possession of a motor vehicle certificate of title with

incomplete assignment, in violation of section 4-104 of the

Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95%, par.

4-104). At trial, the circuit court of Iroquois County

granted defendant’s motion to suppress evidence of the

incomplete titles because the evidence resulted from an

illegal search and seizure, and subsequently dismissed the

case. The appellate court for the third district affirmed.

(149 Ill. App. 3d 592.) We allowed the State’s appeal pur-

suant to Supreme Court Rule 315(a) (107 Ill. 2d 315(a)).

Defendant was the owner and operator of Madison

Salvage Yard in Iroquois County. Defendant’s neighbors

complained about the yard to the State’s Attorney, who

in turn alerted the Secretary of State’s office. The com-

plaints concerned the condition of the premises. Follow-

ing this notice, two Secretary of State police officers went

without a search warrant to defendant’s salvage yard to

conduct an inspection. The officers inventoried the vehicles

in the yard and reviewed defendant’s business records,

whereupon they discovered 26 vehicle certificates of title

C-2

with incomplete assignments of title. Defendant was given

a receipt for the 26 titles, and the officers took them in-

to their possession. Although defendant cooperated with

the officers and did not object to the inspection, he did

not give the officers permission to seize the 26 titles.

Licensed salvage yards are regulated under chapter 5

of the Illinois Vehicle Code. Article IV of chapter 5, en-

titled “Records Required to be Kept” (Ill. Rev. Stat. 1983,

ch. 95%, pars. 5-401 through 5-404), specifies the business

records yards must keep, details the State’s right to in-

spect these records, and outlines the possible consequences

for failure to keep required records. Section 5-403 permits

authorized representatives of the Secretary of State, in-

cluding police officers, to perform inspections of the rec-

ords and premises of salvage yards for the purpose of de-

termining the accuracy and completeness of the required

records. No warrant is required to initiate or conduct

these inspections, but subsection (6) provides that:

“In the event information comes to the attention

of the individuals conducting an inspection that may

give rise to the necessity of obtaining a search war-

rant, and in the event steps are initiated for the pro-

curement of a search warrant, the individuals con-

ducting such inspections may take all necessary steps

to secure the premises under inspection until the war-

rant application is acted upon by a judicial officer.”’

Ill. Rev. Stat. 1983, ch. 95%, par. 5-403(6).

The issue presented by this case is whether, when police

officers have discovered evidence of a crime during the

course of a lawful administrative inspection conducted pur-

suant to section 5-403 of the Illinois Vehicle Code (Ill. Rev.

Stat. 1983, ch. 95%, par. 5-403), the officers must obtain

a warrant before seizing the evidence. The State argues

that the trial and appellate courts erroneously interpreted

the warrant requirement of section 5-403, and therefore

C-3

the evidence seized by the officers in this case should not

have been suppressed. The State contends that officers

should not be required to obtain a warrant before seiz-

ing evidence of criminal violations uncovered during an

administrative inspection.

There has been no question raised as to the constitu-

tionality of the statutory scheme authorizing the inspec-

tions, or to the specific requirements and restrictions im-

posed therein on administrative inspections. Thus, our

decision in this case does not turn on any fourth amend-

ment analysis, but only upon an interpretation of our

State statute.

Under the regulatory scheme created by the legislature

in section 5-401 et seqg., the Secretary of State police of-

ficers were authorized to conduct a warrantless inspec-

tion of defendant’s salvage yard for the limited purpose

of checking the accuracy and completeness of defendant’s

records. To determine whether the officers were entitled

to seize evidence discovered during the inspection, how-

ever, we must turn to the language of the statute. The

cardinal rule of statutory construction is that courts “must

ascertain and give effect to the legislature’s intention in

enacting the statute. In doing so courts must give the lan-

guage of the statute its plain and ordinary meaning. * * *

‘“This is to be done primarily from a consideration of

the legislative language itself, which affords the best

means of its exposition.” ’”’ Maloney v. Bower (1986), 113

Ill. 2d 473, 479, quoting Franzese v. Trinko (1977), 66 Ill.

2d 136, 139; Western National Bank v. Village of Kildeer

(1960), 19 Ill. 2d 342, 350.

The language of section 5-403(6) is not so vague as to

preclude understanding of and adherence to its plain

meaning. Nothing in the statute permits seizure of rec-

C-4

ords or other evidence uncovered as a result of an inspec-

tion. As we read it, the plain language of the statute con-

templates that officers obtain a warrant before seizing any

evidence discovered during the course of an inspection.

Any information uncovered that could serve as the basis

for criminal prosecution makes obtaining a warrant neces-

sary because gathering evidence for criminal prosecutions

is outside the narrow scope of authority—to check the ac-

curacy and completeness of records—given the State to

conduct administrative inspections. It is a fundamental

premise of both State and Federal law that in the absence

of exigent circumstances or some other exception to the

warrant requirement, no evidence to be used in a criminal

prosecution may be sought or seized without a lawful war-

rant. (Frank v. Maryland (1959), 359 U.S. 360, 365, 3 L.

Ed. 2d 877, 881, 79 S. Ct. 804, 808 (“evidence of criminal

action may not * * * be seized without a judicially issued

search warrant’’).) Therefore, any evidence seized by

police officers without a warrant during an administrative

inspection under section 5-403 is evidence seized outside

the officers’ limited authority under the statute and must

be excluded. Thus, we agree with our appellate court that

“when the officers discovered the certificates with in-

complete assignments, they should have obtained a search

warrant before attempting to seize them. This they failed

to do, thereby rendering the seizure of the certificates

unlawful.”” 149 Ill. App. 3d 592, 596; see also People v.

Potter (1986), 140 Ill. App. 3d 693, 697-98 (“{I}f within 24

hours information is uncovered [in an administrative in-

spection] which might give an officer probable cause to

believe an offense has been committed, a search warrant

should be obtained before any further searching or seiz-

ing is attempted’’).

C-5

The State argues that requiring a police officer to ob-

tain a warrant to seize evidence where the evidence has

already been uncovered in the course of a valid adminis-

trative search would be “superfluous” because under these

circumstances the warrant requirement serves no useful

purpose. The State concludes that the legislature could

not possibly have intended to require a warrant for seiz-

ure of evidence in such cases.

What the State essentially seeks is an interpretation of

the statute that in effect reads out the language requir-

ing a warrant after discovery of criminal evidence. We

cannot endorse such an interpretation, however, as the

legislature’s inclusion of that language must be deemed

to be intentional, and we will not interpret a statute to

render meaningless its clear language. “‘ “There is no

rule of construction which authorizes a court to declare

that the legislature did not mean what the plain language

of the statute imports.” ’ ” (County of Du Page v. Graham,

Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143,

151-52, quoting People ex rel. Scott v. Schwulst Building

Center, Inc. (1982), 89 Ill. 2d 365, 371.) If there were no

statutory language requiring a warrant, this would be a

different case and we might find the search and seizure

conducted here unobjectionable under current fourth

amendment doctrine. (See Michigan v. Clifford (1984), 464

U.S. 287, 294, 78 L. Ed. 2d 477, 484, 104 S. Ct. 641, 647

(“If evidence of criminal activity is discovered during the

course of a valid administrative search, it may be seized”’);

Texas v. Brown (1983), 460 U.S. 730, 739, 75 L. Ed. 2d

502, 512, 103 S. Ct. 1535, 1542 (“{I}f, while lawfully en-

gaged in an activity in a particular place, police officers

perceive a suspicious object, they may seize it immediate-

ly”).) But where, as here, a State statute imposes addi-

tional restrictions on the manner in which warrantless

eterna eee

C-6

searches are to be conducted, we cannot ignore the lan-

guage of the statute or interpret it in such a way as to

render the restrictions meaningless.

Although the plain language of the statute compels our

decision in this case, and therefore we need not turn to

the legislative history of the statute for guidance, we note

that the legislative history proffered by the State in sup-

port of their argument does not demonstrate a legislative

intent to permit seizures in the course of administrative

inspections. In fact, in explaining the bill to members of

the Senate, Senator Chew stated that:

“This is a bill that was designed by the Motor

Vehicle Laws, and it deals with auto theft and chop-

shops plus parts. And it merely allows the Secretary

of State or his nominee to make unannounced inspec-

tions to ascertain whether any parts on the premises

were stolen or do not have ... the proper * * *

number on them and that’s all it does.” (Emphasis

added.) 82d Ill. Gen. Assem., Senate Proceedings,

May 20, 1982, at 41.

In response to questions, Senator Chew made clear that

the inspection authorized by statute “is not a search, it’s

just an inspection to ascertain the kind of parts that are

on the premises.” (82d Ill. Gen. Assem., Senate Proceed-

ings, May 20, 1982, at 42.) Further, he stressed that:

“I don’t want the word search to overcast the inspec-

tion. It isn’t necessary to have a search warrant to

inspect. If you were there to search the place, in the

sense of searching, it’s necessary to have a warrant,

so any time a search is to be had, the judge would

have to issue . . . a search warrant * * * and what

we're trying to do is to give the Secretary of State’s

Office the authority to go in and inspect, not search

but inspect, their records to ascertain whether there

are stolen auto parts on the premises. Now the legal

proceedings subsequently to the fine or not to fine

C-7

would be followed according to law * * * it is an in-

spection and not a search.” (82d Ill. Gen. Assem.,

Senate Proceedings, May 20, 1982, at 43-44.)

This legislative history illustrates the legislature’s inten-

tion that the purpose of inspection be narrowly limited

to checking records, and not to include the general author-

ity—including the authority to seize evidence—given to

police in conducting searches. It also makes clear that

judicial approval would be necessary to expand an inspec-

tion conducted pursuant to the statute beyond its narrow-

ly drawn purposes.

Furthermore, contrary to the State’s assertions that the

warrant requirement is meaningless in this context, we

find that it serves a useful purpose. As originally enacted,

the statute authorizing warrantless administrative inspec-

tions contained no guidelines concerning how the inspec-

tions were to be conducted and no limits on the discre-

tion of the State in making inspections. Both this court

and the Federal district court held the statute unconstitu-

tional under the standards established in Donovan v.

Dewey (198i), 452 U.S. 594, 69 L. Ed. 2d 262, 101 S. Ct.

2534. (People v. Krull (1985), 107 Ill. 2d 107, 116, rev'd

on other grounds (1987), 480 U.S. ___, 94 L. Ed. 2d 364,

107 S. Ct. 1160; Bionic Auto Parts & Sales, Inc. v. Fahner

(N.D. Ill. 1981), 518 F. Supp. 582, aff'd in part & vacated

in part (1983), 721 F.2d 1072.) The statute was then

amended to include safeguards designed to limit State of-

ficials’ discretion by restricting the manner in which war-

rantless inspections could be conducted. The State con-

cedes that the current statute is strictly limited and that

the requirements of section 5-403(6) are safeguards for con-

ducting warrantless inspections. The constitutionality of

the statute as amended has been upheld. (Bionic Auto

Parts & Sales, Inc. v. Fahner (7th Cir. 1983), 721 F.2d

C-8

1072.) Given this background, we do not find it inconceiv-

able that the legislature enacted section 5-403(6) to serve

a useful function: to protect against the possible abuses

of administrative searches by requiring that the neutral

judgment of a magistrate or judge be obtained before allow-

ing State officers to seize evidence of criminal activity un-

covered during inspections.

Neither can we accept the State’s contention that the

appellate court’s decision in People v. Potter (1986), 140

Ill. App. 3d 693, authorizes unlimited warrantless search

and seizure under the statute for the first 24 hours of

an administrative inspection. Potter simply requires that

if an inspection has gone on for 24 hours, the State must

then obtain a warrant before any further search is author-

ized. The fact that a warrant is required under these cir-

cumstances does not, however, carry the negative implica-

tion that through the first 24 hours of an inspection the

State has carte blanche to search and seize as it wishes.

As we read it, the statute requires a warrant whenever

evidence of a criminal violation is uncovered, prior to seiz-

ure of that evidence.

The State also argues that the statute’s requirement of

a warrant serves no fourth amendment purpose. Although

we decide this case on purely statutory grounds, we note

that the primary purpose of the exclusionary rule is “ ‘to

deter future unlawful police conduct and thereby effec-

tuate the guarantee of the Fourth Amendment against

unreasonable searches and seizures.’ ”’ (Jllinois v. Krull

(1987), 480 U.S. , 94 L. Ed. 2d 364, 378, 107

S. Ct. 1160, 1165, quoting United States v. Calandra

(1974), 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613.)

In failing to obtain a warrant bevore seizing the certifi-

cates of title in this case, the police officers acted in de-

fiance of a State statute. This is precisely the type of

C-9

situation in which application of the exclusionary rule

works to deter future police misconduct and preserve the

protections of the fourth amendment. Thus it is clear that

the trial and appellate court decisions excluding the evi-

dence furthered the purpose underlying the fourth amend-

ment’s exclusionary rule.

The State’s reliance on an exigent-circumstances ra-

tionale for the warrantless search is also erroneous. Ap-

plication of an exigent-circumstances exception to the war-

rant requirement will be made only where the situation,

considering all the facts, necessitated immediate action by

the police. The State has failed to bring any facts to our

attention that indicate any exigent circumstances existing

when the officers seized defendant’s certificates of title,

and we agree with the appellate court that there is no

evidence that the officers had insufficient time to get a

search warrant before the courthouse closed. The cases

cited by the State in support of application of an exigent-

circumstances exception, Carroll v. United States (1925),

267 U.S. 132, 69 L. Ed. 548, 45 S. Ct. 280, and Chambers

v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S.

Ct. 1975, were both based on the differences between

searches of automobiles and searches of homes or offices.

As stated in Chambers, “the opportunity to search [a vehi-

cle] is fleeting since a car is readily movable.” (Chambers,

399 U.S. at 51, 26 L. Ed. 2d at 428, 90 S. Ct. at 1981.)

Obviously, the rationale justifying search and seizure of

vehicles in these cases cannot be construed to justify the

seizure of evidence in the salvage yard in this case.

The State next argues that even if the evidence seized

in this case is subject to exclusion, it should not be ex-

cluded due to the good-faith or plain-view exceptions to

the exclusionary rule. The United States Supreme Court

recognized a “good faith” exception to the exclusionary

C-10

rule in United States v. Leon (1984), 468 U.S. 897, 82 L.

Ed. 2d 677, 104 S. Ct. 3405, and expanded that excep-

tion in Illinois v. Krull (1987), 480 U.S. ___, 94 L. Ed.

2d 364, 107 S. Ct. 1160. In Leon, the Court held that evi-

dence seized on the authority of a search warrant later

found to be invalid need not be excluded if the police offi-

cer’s reliance on the warrant was objectively reasonable.

The Court reasoned that to exclude evidence under these

circumstances would not serve the basic purpose of the

rule—deterring police misconduct—because at the time of

the search and seizure the police officer was acting as a

reasonable police officer should.

On the same rationale, the Court in Krull 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:

“Unless a statute is clearly unconstitutional, an of-

ficer 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 judi-

cial declaration will not deter future Fourth Amend-

ment violations by an officer who has simply fulfilled

his responsibility to enforce the statute as written.”

Krull, 480 U.S. at ___, 94 L. Ed. 2d at 375, 107

S. Ct. at 1167.

Obviously, Leon and Krull are not controlling here, as

the police officers in this case were relying neither on an

invalid warrant nor on a statute later held to be unconsti-

tutional. Instead, the State argues that we should extend

the good-faith exception to situations where a police of-

ficer reasonably relies on his own interpretation of a valid

statute in conducting a search and seizure, when that stat-

ute is later judicially interpreted to prohibit such seizure.

_—

a Me

C-11

We reject the State’s argument because under Leon and

Krull the officer’s good faith alone is not sufficient to vali-

date the search and seizure; the officer must also be act-

ing on the authority of a seemingly valid warrant or stat-

ute. Here, there is no such reliance, but quite the op-

posite. The officers were acting in defiance of, not reli-

ance on, the language of a statute limiting the authority

of officers to inspection of the premises and a records

check for accuracy and completeness.

Moreover, to adopt the extension of the good-faith ex-

ception proposed by the State would essentially eviscerate

the exclusionary rule as it is currently enforced. Police

officers would be encouraged to defy the plain language

of statutes as written in favor of their own interpreta-

tions in conducting searches and seizures. Such a proposal,

giving the police unlimited authority to conduct searches

and seizures until specifically restricted by the legislature

or the courts, is fundamentally at odds with the central

purpose of deterring police misconduct which underlies the

exclusionary rule.

The State’s reliance on the plain-view doctrine is similar-

ly misplaced. Under the doctrine, evidence seized by of-

ficers in the absence of a warrant is nevertheless admissi-

ble if three conditions are met. First, police must be prop-

erly on the premises through a warrant or an exception

to the warrant requirement. Second, the police must dis-

cover the evidence inadvertently, not knowing in advance

the location of the evidence. Finally, it must be immedi-

ately apparent that the item observed may be evidence

of a crime, contraband, or otherwise subject to seizure.

(Coolidge v. New Hampshire (1971), 403 U.S. 443, 464-71,

29 L. Ed. 2d 564, 582-86, 91 S. Ct. 2022, 2037-41 (plural-

ity opinion); People v. Wilson (1987), 116 Ill. 2d 29, 51-52

(seizure valid where police lawfully on premises and items

C-12

seized were in plain view); People v. House (1986), 141

Ill. App. 3d 298, 300-02 (three requirements of the plain-

view doctrine outlined).) The State argues that we should

extend the plain-view exception to the circumstances of

this case. This court has never applied the doctrine to

facts even remotely similar to those in this case, and we

see no reason to do so now.

We agree with the appellate court that a lengthy analysis

under the plain-view doctrine is not necessary where, as

here, the officers were searching for precisely the objects

found. Certificates of title contained within defendant’s

records, although coming into the view of the officers dur-

ing the course of the inspection, cannot be seriously con-

sidered as having been in “plain view,” and discovery pur-

suant to a deliberate search of these records can hardly

be deemed inadvertent. As the Supreme Court noted, “‘it

is important to keep in mind that, in the vast majority

of cases, any evidence seized by the police will be in plain

view, at least at the moment of seizure.” (Emphasis in

original.) Coolidge, 403 U.S. at 465, 29 L. Ed. 2d at 582,

91 S. Ct. at 2037.

Finally, even if we were to find that under the language

of section 5-403 a warrant was not necessary for seizure

of the titles discovered during the inspection, under the

facts of this case the evidence would still be excludable.

One of the police officers who conducted the search testi-

fied that the inspection was in response to a complaint

concerning the condition of defendant’s premises. When

asked, “[The complaint] had nothing to do with car titles,

did it?” the officer responded, “No, Sir, it did not.”

One of the fundamental principles of administrative

searches is that the government may not use an admin-

istrative inspection scheme as a pretext to search for evi-

C-13

dence of criminal violations. (See Michigan v. Tyler (1978),

436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942; Donovan

v. Dewey (1981), 452 U.S. 594, 69 L. Ed. 2d 262, 101 S.

Ct. 2534; Almeida-Sanchez v. United States (1973), 413

U.S. 266, 37 L. Ed. 2d 596, 93 S. Ct. 2535; Abel v. United

States (1960), 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct.

683.) Thus, if “the primary object of the search is to

gather evidence of criminal activity” a search warrant bas-

ed on probable cause must be obtained. (Michigan v. Clif-

ford (1984), 464 U.S. 287, 294, 78 L. Ed. 2d 477, 484, 104

S. Ct. 641, 647.) Here, the search was initiated not for

the purpose of inspecting the records, as authorized by

the statute, but in response to complaints about the con-

dition of the premises. The clear implication is that the

police were conducting the inspection as a pretext for

placating defendant’s neighbors or in order to find crim-

inal violations.

In People v. Potter (1986), 140 Ill. App. 3d 693, our ap-

pellate court faced a similar situation. There, the State’s

Attorney had received information that defendants (used-

car dealers) had sold cars with their odometers turned

back. Because there was insufficient evidence to obtain

a search warrant for defendant’s dealership, the State’s

Attorney instead conducted a warrantless administrative

search under section 5-403. Evidence of altered odometers

was uncovered, and defendants were indicted. The appel-

late court affirmed the trial court’s suppression of evi-

dence discovered in the inspection. By comparing the pur-

pose of the statute—to combat the trade in stolen vehicles

and parts—with the purpose underlying the search con-

ducted of the dealership, the court concluded that the in-

spection was merely pretextual and that even “the most

charitable reading of these statutes cannot validate the

searches in question.” 140 Ill. App. 3d at 697.

C-14

Similarly, the administrative inspection in the present

case was not implemented in order to further the pur-

poses of the statute, but merely in response to neighbors’

complaints unrelated to the purpose of the statute. Evi-

dence obtained as the result of such an abuse of the au-

thority to inspect given by the statute and without the

warrant contemplated by the statute is clearly inadmissi-

ble against defendant.

For the reasons stated, the judgment of the appellate

court is affirmed.

Judgment affirmed.

D-1

APPENDIX D

Order Of The Supreme Court Of Illinois

Denying Petition For Rehearing

(Letterhead Of)

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

April 5, 1988

State’s Attorneys Appellate Prosecutor

Third Judicial District

P.O. Box 654

Ottawa, IL 61350

No. 64584—People State of Illinois, appellant v. Lowell

Madison, appellee. Appeal, Appellate Court,

Third District.

The Supreme Court today DENIED the petition for re-

hearing in the above entitled cause.

The mandate of this Court will issue to the appropriate

Appellate Court and/or Circuit Court or other agency on

April 15, 1988.