                                                                             Digitally signed by
                                                                             Reporter of Decisions
                          Illinois Official Reports                          Reason: I attest to the
                                                                             accuracy and integrity
                                                                             of this document
                                                                             Date: 2018.02.09
                                  Supreme Court                              14:31:26 -06'00'




                          People v. Holmes, 2017 IL 120407




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAVID
Court:               HOLMES, Appellee.



Docket No.           120407



Filed                July 20, 2017



Decision Under       Appeal from the Appellate Court for the First District; heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Dennis J. Porter, Judge, presiding.



Judgment             Reversed and remanded.



Counsel on           Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal               State’s Attorney, of Chicago (David L. Franklin, Solicitor General,
                     Michael M. Glick and Garson S. Fischer, Assistant Attorneys General,
                     and Alan J. Spellberg and Paul J. Connery, Assistant State’s
                     Attorneys, of counsel), for the People.

                     Amy P. Campanelli, Public Defender, of Chicago (Eileen T. Pahl,
                     Assistant Public Defender, of counsel), for appellee.
     Justices                 JUSTICE GARMAN delivered the judgment of the court, with
                              opinion.
                              Chief Justice Karmeier and Justices Freeman, Thomas, Burke, and
                              Theis concurred in the judgment and opinion.
                              Justice Kilbride dissented, with opinion.



                                               OPINION

¶1          Defendant David Holmes was arrested when a Chicago police officer observed a revolver
       in defendant’s waistband. After the arrest, police also discovered that defendant lacked a
       Firearm Owner’s Identification (FOID) card. Defendant was charged with four counts of
       aggravated unlawful use of a weapon (AUUW). Counts I and III alleged that defendant carried
       a loaded, uncased, immediately accessible firearm (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2),
       (a)(3)(A) (West 2012)), and counts II and IV alleged that he did so without a FOID card (720
       ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2012)). Subsequent to defendant’s
       arrest, this court issued its decision in People v. Aguilar, holding that section 24-1.6(a)(1),
       (a)(3)(A), (d)(1) was facially unconstitutional because it violated the right to keep and bear
       arms, as guaranteed by the second amendment to the United States Constitution. People v.
       Aguilar, 2013 IL 112116, ¶ 22. The State entered a nolle prosequi on counts I and III.
       Defendant filed a motion to quash his arrest and suppress evidence with respect to counts II
       and IV on the ground that the arresting officer only had probable cause to believe defendant
       was violating sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A), which had been
       declared unconstitutional. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012).
       As a result, defendant argued that probable cause was retroactively invalidated and therefore
       his arrest violated his right to be free from unreasonable search and seizure under the state and
       federal constitutions.
¶2          After a hearing, the circuit court granted defendant’s motion. The appellate court affirmed.
       2015 IL App (1st) 141256, ¶ 40. We allowed the State’s petition for leave to appeal, pursuant
       to Illinois Supreme Court Rule 315 (eff. Mar. 15, 2016).

¶3                                           BACKGROUND
¶4         In January 2014, defendant filed a motion to quash his arrest and suppress evidence with
       respect to counts II and IV. Because the probable cause underlying defendant’s arrest was
       based solely upon a violation of sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A)
       (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012)), which were declared
       facially unconstitutional in Aguilar after defendant’s arrest, defendant argued that the void
       ab initio doctrine retroactively invalidated probable cause.
¶5         At the hearing on defendant’s motion, the arresting officer, Gabriel Barrera, testified that
       on June 8, 2012, he was patrolling the 63rd Street Beach in Chicago. Officer Barrera saw
       defendant lean into the passenger-side window of a vehicle to speak to the driver. Defendant’s
       shirt rode up, revealing a revolver tucked into his waistband. Officer Barrera approached
       defendant, asked him to place his hands on his head, and removed defendant’s revolver.


                                                   -2-
     Officer Barrera’s partner then took defendant into custody. It was after defendant was taken
     into custody that Officer Barrera learned defendant’s name and that he did not have a FOID
     card. Officer Barrera had no arrest or search warrant for defendant at the time of his arrest.
     Officer Barrera conceded that, before arresting defendant, he did not know any information
     about defendant. Therefore, probable cause was based solely upon defendant’s violation of the
     subsequently invalidated AUUW subsections. Following Officer Barrera’s testimony,
     defendant argued that the arrest should be quashed and all evidence resulting from the arrest
     suppressed because
                  “At the time, yes, the officer did have the right to place [defendant] under arrest. He
             had a right to search him and recover that gun.
                  Post-Aguilar, Judge, he didn’t because that portion of the statute was found to be
             unconstitutional. It was found to be void. It had [sic] ab initio. The point being though
             now that’s no longer okay. Just somebody carrying a gun is not a reason for officers to
             place him in custody and place him under arrest.”
     The trial court noted:
                  “It might be kind of unfortunate because the officer didn’t do anything wrong at the
             time. But if it is true that the statute is void ab initio then it is like it never existed. And
             if it never existed it is that portion of the statute [sic] then the officer didn’t have
             probable cause.”
¶6       The appellate court affirmed, explaining that its conclusion was informed by this court’s
     decision in People v. Carrera, 203 Ill. 2d 1 (2002):
             “[O]ur supreme court in Carrera stated that a facially invalid statute is void ab initio.
             *** In other words, ‘[i]t is as though no such law had ever been passed.’ [Citation.] ***
                  Based on the Carrera court’s language, we conclude the void ab initio doctrine
             precludes the application of the good-faith doctrine in defendant’s case. *** As the
             Carrera court explained, applying the good-faith exception to defendant’s case would
             ‘run counter to *** void ab initio jurisprudence.’ [Citation.] Further, the Carrera court
             stated that giving ‘legal effect’ to the fact that the prior statute existed in the
             defendant’s case would ‘effectively resurrect’ the statute ‘and provide a grace period
             *** during which our citizens would have been subject to extraterritorial arrests
             without proper authorization.’ ” 2015 IL App (1st) 141256, ¶¶ 29-30 (quoting People
             v. Carrera, 203 Ill. 2d 1, 14, 16 (2002)).
¶7       Referencing Michigan v. DeFillippo, 443 U.S. 31 (1979), and United States v. Charles,
     801 F.3d 855 (7th Cir. 2015), the appellate court noted that, “[a]s a result of the Illinois void
     ab initio doctrine, we are *** in the unique position of having to hold that the same exact
     conduct could establish probable cause if a case was brought in the federal system but not if it
     was brought in our state courts.” 2015 IL App (1st) 141256, ¶ 36.

¶8                                            ANALYSIS
¶9       When reviewing a trial court’s ruling on a motion to quash arrest and suppress evidence,
     this court applies a two-part standard of review. People v. Almond, 2015 IL 113817, ¶ 55.
     Great deference is afforded to the trial court’s findings of fact, and those factual findings will
     be reversed only if they are against the manifest weight of the evidence. Id. This court reviews


                                                    -3-
       de novo the trial court’s ultimate legal ruling as to whether the evidence should be suppressed.
       Id.
¶ 10       Before this court, the State contends that (1) the void ab initio doctrine does not
       retroactively invalidate an arrest made upon probable cause to believe a defendant was
       violating a then-valid criminal statute and, (2) alternatively, if the void ab initio doctrine does
       retroactively invalidate such an arrest, then the good-faith exception to the exclusionary rule
       should apply because the statute in the instant case is substantive in nature, in that it makes
       unlawful certain conduct, and does not, by its own terms, confer unconstitutional search and
       seizure authority upon police.
¶ 11       Defendant acknowledges that, at the time of his arrest, Officer Barrera had probable cause
       to arrest him for carrying a loaded, uncased, immediately accessible firearm. 720 ILCS
       5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012). Defendant, however, contends that our
       2002 decision in Carrera mandates strict application of the void ab initio doctrine, which,
       defendant maintains, would have the effect of retroactively invalidating probable cause and
       thereby incidentally mandating the suppression of the evidence inculpating defendant for his
       FOID violation. Any other result, according to defendant, would be counter to the void
       ab initio doctrine.
¶ 12       The void ab initio doctrine is a state jurisprudential principle. “When a statute is held to be
       facially unconstitutional, the statute is said to be void ab initio, i.e., void ‘from the
       beginning.’ ” (Internal quotation marks omitted.) People v. McFadden, 2016 IL 117424, ¶ 17
       (quoting Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006)). “An unconstitutional law ‘confers no
       right, imposes no duty and affords no protection. It is *** as though no such law had ever been
       passed.’ ” People v. Gersch, 135 Ill. 2d 384, 399 (1990) (quoting People v. Schraeberg, 347 Ill.
       392, 394 (1932)). “[W]here a statute is violative of constitutional guarantees, we have a duty
       not only to declare such a legislative act void, but also to correct the wrongs wrought through
       such an act by holding our decision retroactive.” Id. The law is clear that a defendant cannot be
       prosecuted under a statute that is void ab initio. See McFadden, 2016 IL 117424, ¶ 19. Less
       clear is whether the void ab initio doctrine is meant to be given such literal interpretation as to
       extend its reach to probable cause.
¶ 13       In the instant case, the appellate court concluded that this court’s decision in Carrera
       dictates that probable cause based on a statute later found unconstitutional is retroactively
       invalidated by operation of the void ab initio doctrine.

¶ 14                                          People v. Carrera
¶ 15        In Carrera, the defendant was arrested pursuant to a statute that granted police
       extraterritorial arrest powers. 203 Ill. 2d at 7. Subsequent to the defendant’s arrest, the statute
       was held unconstitutional because it was enacted in violation of the single subject rule of the
       Illinois Constitution of 1970. People v. Reedy, 186 Ill. 2d 1, 12 (1999). Thereafter, the statute
       was declared void ab initio in People v. Ramsey, 192 Ill. 2d 154, 156 (2000).
¶ 16        Before this court, the State argued (1) that the good-faith exception to the exclusionary rule
       applies where police rely upon a statute later declared unconstitutional and (2) that the
       exclusionary rule was inapplicable because the police did not conduct a constitutionally
       unreasonable search or seizure but simply acted outside territorial limits without valid
       statutory authority to do so. Carrera, 203 Ill. 2d at 10. The State forfeited the issue of whether

                                                    -4-
       the exclusionary rule applied but urged this court to still consider it because resolution of that
       issue must occur prior to reaching the question of whether the good-faith exception applies. Id.
       at 11.
¶ 17       A majority of this court concluded that Illinois law was settled that the exclusionary rule
       applies where police effectuate an extraterritorial arrest without appropriate statutory
       authority. Id. In response, the State argued that the good-faith exception to the exclusionary
       rule applied because the police did not violate the defendant’s substantive constitutional rights
       in effectuating the extraterritorial arrest. Id. at 13. Acknowledging the State’s argument, the
       majority stated that it was choosing “to resolve this cause on narrower grounds” because “[i]n
       our estimation, the result that we reach is dictated by application of the void ab initio doctrine.”
       Id. at 13-14.
¶ 18       The majority explained that “[t]he void ab initio doctrine applies equally to legislative acts
       which are unconstitutional because they violate substantive constitutional guarantees [citation]
       and those that are unconstitutional because they are adopted in violation of the single subject
       clause of our constitution [citation].” Id. at 14-15. The majority would not consider the State’s
       good-faith exception argument, since application of “the good-faith exception would run
       counter to our single subject clause and void ab initio jurisprudence—specifically, that once a
       statute is declared facially unconstitutional, it is as if it had never been enacted.” Id. at 16. The
       majority reasoned:
                “In our estimation, to give effect to the historical fact that the amendment existed at the
                time of defendant’s arrest would effectively resurrect the amendment and provide a
                grace period (in this case four years between the effective date of the amendment and
                the date of our opinion in Reedy finding Public Act 89-404 unconstitutional) during
                which our citizens would have been subject to extraterritorial arrests without proper
                authorization. Our decision not to recognize an exception to the exclusionary rule
                where a statute is enacted in violation of the single subject clause comports with our
                jurisprudence that a statute which is facially invalid, and thus unconstitutional in its
                entirety, is void ab initio.” Id.
¶ 19       However, we find that Carrera is distinguishable from the present case for the following
       reasons. First, the statute at issue in Carrera did not itself violate any provision of the United
       States Constitution. Id. at 22 (Garman, J., dissenting, joined by Fitzgerald and Thomas, JJ.)
       (“[T]he constitutional infirmity in the statute did not spring from any violation of the fourth
       amendment of the United States Constitution or article I, section 6, of the state constitution.”).
       Rather, the statute at issue was held unconstitutional because it was enacted in violation of the
       single subject clause of the state constitution. Id. at 14-15 (majority opinion). Carrera involved
       strict application of a state jurisprudential doctrine—the void ab initio doctrine—to a state
       statute declared unconstitutional on purely state grounds. Id. at 16. In the instant case, the
       statute at issue was held unconstitutional because it violated the second amendment of the
       United States Constitution. The reasoning underlying this court’s decision in Carrera cannot
       therefore be automatically applied to the present case, which involves the relationship between
       the void ab initio doctrine and a statute declared unconstitutional on federal grounds.
¶ 20       Second, the majority in Carrera declined to consider whether the good-faith exception to
       the exclusionary rule applied. Id. The issue of whether police had probable cause to arrest the
       defendant in Carrera had been forfeited. See id. at 18. Therefore, probable cause was not at


                                                     -5-
       issue in Carrera. The State also forfeited the issue of whether the exclusionary rule applied. Id.
       at 10. Rather, the majority resolved the case by applying the void ab initio doctrine and
       declined to address the good-faith exception due to its belief that application of the good-faith
       exception would be counter to the void ab initio doctrine. Id. at 16. The present case requires
       that we first address whether probable cause is retroactively invalidated. If not, then any
       reasoning involving the good-faith exception to the exclusionary rule is inapposite.
¶ 21        Third, Carrera is distinguishable because the facts and issues present did not implicate the
       limited lockstep doctrine. The single subject clause of the Illinois Constitution of 1970 does
       not have a cognate provision in the United States Constitution. See People v. Caballes, 221 Ill.
       2d 282, 289 (2006) (“First, a provision may be unique to the state constitution and, therefore,
       must be interpreted without reference to a federal counterpart. The single-subject rule of the
       Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 8(d)) is such a provision.”). In the
       instant case, we must address whether probable cause is invalidated by application of the void
       ab initio doctrine. Where, as here, the existence of probable cause is at issue, which is by
       definition a fourth amendment issue, we must look to federal law pursuant to the limited
       lockstep doctrine. See People v. Fitzpatrick, 2013 IL 113449, ¶ 28.
¶ 22        For the reasons that we explain below, strict application of the void ab initio doctrine in the
       present context, to the extent posited by defendant, would conflict (1) with precedent from the
       United States Supreme Court and (2) with two recent decisions from this court.

¶ 23                                     Limited Lockstep Doctrine
¶ 24       Under our limited lockstep doctrine, we construe the search and seizure clause of our state
       constitution in accordance with the United States Supreme Court’s interpretation of the fourth
       amendment unless any of the narrow exceptions to lockstep interpretation apply. See id. This
       conclusion is “based on the premise that the drafters of the 1970 constitution and the delegates
       to the constitutional convention intended the phrase ‘search and seizure’ in the state document
       to mean, in general, what the same phrase means in the federal constitution.” Caballes, 221 Ill.
       2d at 314.
¶ 25       “Both the fourth amendment to the United States Constitution, which applies to the states
       via the fourteenth amendment (Mapp v. Ohio, 367 U.S. 643 (1961)), and article I, section 6, of
       the Illinois Constitution of 1970, guarantee Illinois citizens the right to be free from
       unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.”
       People v. Gaytan, 2015 IL 116223, ¶ 20. Notably, the term “probable cause” is incorporated in
       both the state and federal search and seizure provisions. U.S. Const., amend. IV; Ill. Const.
       1970, art. I, § 6. Therefore, we follow decisions of the United States Supreme Court regarding
       searches and seizures.
¶ 26       In Michigan v. DeFillippo, the United States Supreme Court addressed “whether an arrest
       made in good-faith reliance on an ordinance, which at the time had not been declared
       unconstitutional, is valid regardless of a subsequent judicial determination of its
       unconstitutionality.” 443 U.S. 31, 33 (1979). The ordinance at issue provided that a police
       officer could stop and question an individual if he had reasonable cause to believe that the
       individual’s behavior warranted further investigation for criminal activity. Id. The ordinance
       was subsequently amended to make it a crime for any person stopped pursuant to the ordinance
       to refuse to identify himself and produce evidence of his identity. Id. When the defendant


                                                    -6-
       failed to identify himself, he was taken into custody and searched. Id. at 34. The search
       revealed a package of marijuana and packet containing a controlled substance. Id. The
       defendant was charged with possession of the controlled substance. Id. The defendant was not
       charged with or tried for violation of the ordinance. Id. Subsequently, the ordinance making it
       a crime to refuse to identify oneself was held unconstitutionally vague on its face. Id.
¶ 27       The State argued that because of the violation of the ordinance, which the defendant
       committed in the presence of the officers, the defendant was subject to a valid arrest and the
       search that followed was a valid search incident to arrest. Id. at 35. Therefore, evidence of the
       drugs should not have been suppressed. Id. The defendant maintained that since his arrest was
       for allegedly violating an ordinance later held unconstitutional, the search was likewise
       invalid. Id. After noting that the arresting officer had abundant probable cause to believe the
       defendant violated the ordinance, the United States Supreme Court rejected the argument that
       the officer lacked probable cause because he should have known the ordinance was invalid and
       would later be judicially declared unconstitutional. Id. at 36-37. “A prudent officer *** should
       not have been required to anticipate that a court would later hold the ordinance
       unconstitutional.” Id. at 37-38. The Supreme Court explained further:
                    “Police are charged to enforce laws until and unless they are declared
               unconstitutional. The enactment of a law forecloses speculation by enforcement
               officers concerning its constitutionality—with the possible exception of a law so
               grossly and flagrantly unconstitutional that any person of reasonable prudence would
               be bound to see its flaws. Society would be ill-served if its police officers took it upon
               themselves to determine which laws are and which are not constitutionally entitled to
               enforcement.” Id. at 38.
¶ 28       In United States v. Charles, police responded to a call involving a road rage incident after a
       woman reported that the other driver was pounding on her car window and had displayed a
       gun. 801 F.3d 855, 857 (7th Cir. 2015). When officers reached the scene, the defendant
       emerged from his car. Id. The defendant matched the caller’s description of the man with the
       gun, the responding officer noticed a bulge under the defendant’s clothing, and the responding
       officer detained and frisked him. Id. After finding nothing, the officer searched the defendant’s
       car, wherein the officer discovered a loaded handgun. Id. The defendant was indicted for
       possessing a firearm as a felon. Id. In finding probable cause, the court noted:
                    “It’s true that Chicago’s handgun ban was later invalidated, see McDonald, 561
               U.S. at 791, 130 S.Ct. 3020, as was the Illinois concealed-carry law, see Moore, 702
               F.3d at 942. But the ‘[p]olice are charged to enforce laws until and unless they are
               declared unconstitutional,’ so a search based on a violation of a law later declared
               unconstitutional does not necessarily violate the Fourth Amendment. Michigan v.
               DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Although Charles
               could not be punished for violating an unconstitutional statute or ordinance, unless a
               law is ‘grossly and flagrantly unconstitutional,’ a police officer conducting a search
               may reasonably rely on it for Fourth Amendment purposes. Id.” Id. at 861.
¶ 29       Federal case law is clear that, under the facts of this case, probable cause would not be
       retroactively invalidated by the subsequent invalidation of the statute upon which probable
       cause was based at the time of the arrest. DeFillippo, 443 U.S. 31; Charles, 801 F.3d 855. We
       find this analysis compelling. Strict application of the Illinois void ab initio doctrine, to the


                                                   -7-
       literal extent posited by defendant, would conflict with our continued adherence to the limited
       lockstep doctrine.

¶ 30                               People v. Blair and People v. McFadden
¶ 31       Our conclusion is consistent with this court’s recent decisions in People v. Blair, 2013 IL
       114122, and People v. McFadden, 2016 IL 117424.
¶ 32       First, in Blair, this court considered whether Public Act 95-688 (eff. Oct. 23, 2007), which
       amended the armed violence statute, revived the sentencing enhancement in the armed robbery
       statute that this court held unconstitutional in People v. Hauschild, 226 Ill. 2d 63 (2007). Blair,
       2013 IL 114122, ¶ 1. Relevant here, the State in Blair disputed that, under the void ab initio
       doctrine, the legislature could revive the armed robbery sentencing enhancement only by
       amending and/or reenacting that statute. Id. ¶ 25. The defendant argued that although Public
       Act 95-688 may have remedied the constitutional infirmity in the armed robbery statute, Public
       Act 95-688 did not revive the sentencing enhancement in that statute because “once Hauschild
       declared the armed robbery sentencing enhancement unconstitutional the statute was void
       ab initio, and ‘the enhancement never existed.’ ” Id. ¶ 26. Agreeing with the State, this court
       explained:
                    “Contrary to defendant’s argument, the void ab initio doctrine does not mean that a
                statute held unconstitutional never existed. As we recognized in Perlstein, [t]he actual
                existence of a statute, prior to a determination that the statute is unconstitutional, is an
                operative fact and may have consequences which cannot justly be ignored. The past
                cannot always be erased by a new judicial declaration. Perlstein, 218 Ill. 2d at 461
                (quoting Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374
                (1940)). Moreover, to construe the void ab initio doctrine as rendering a statute
                nonexistent is tantamount to saying that this court may repeal a statute. See Certain
                Taxpayers v. [Sheahen], 45 Ill. 2d 75, 81 (1970) (effect of repeal is to obliterate the
                statute repealed as completely as though it had never been passed as a law and never
                existed). Such a result, however, would contravene our separation of powers clause. Ill.
                Const. 1970, art. II, § 1.
                    The power to enact laws, and the concomitant power to repeal those laws, reside in
                the General Assembly. *** Although we are obligated to declare an unconstitutional
                statute invalid and void [citations], such a declaration by this court cannot, within the
                strictures of the separation of powers clause, repeal or otherwise render the statute
                nonexistent.” (Internal quotation marks omitted.) Id. ¶¶ 29-30.
¶ 33       Next, in McFadden, we considered whether a conviction for AUUW based on section
       24-1.6(a)(1), (a)(3)(A) could still serve as a prior felony conviction after that section was
       declared facially unconstitutional. 2016 IL 117424. The defendant argued that his 2008
       conviction for unlawful use of a weapon (UUW) by a felon, a constitutionally valid offense,
       was not proven because the predicate felony conviction was based on that portion of the
       AUUW statute declared facially unconstitutional and void ab initio in Aguilar. Id. ¶ 21. We
       noted that, “[b]ased on this court’s precedent, we continue to reaffirm the principle that the
       void ab initio doctrine renders a facially unconstitutional statute unenforceable and renders a
       conviction under that facially unconstitutional statute subject to vacatur.” Id. ¶ 20. We
       explained:


                                                     -8-
                “Although Aguilar may provide a basis for vacating defendant’s prior 2002 AUUW
                conviction, Aguilar did not automatically overturn that judgment of conviction. Thus,
                at the time defendant committed the UUW by a felon offense, defendant had a
                judgment of conviction that had not been vacated and that made it unlawful for him to
                possess firearms.” Id. ¶ 31.
¶ 34       Therefore, this court rejected the defendant’s argument that the void ab initio doctrine, in
       and of itself, procedurally operated to overturn the 2002 AUUW conviction. The conviction
       would be treated as valid unless and until it was declared otherwise via judicial process. Id.
¶ 35       In the instant case, defendant attempts to distinguish Blair and McFadden. Specifically,
       defendant implies that, because Blair involved a question of revival and revival is not at issue
       in the instant case, Blair is inapposite. Defendant also asserts that McFadden did not curtail the
       reach of the void ab initio doctrine nor preclude the defendant from obtaining relief, as it
       addressed only the question of the procedural mechanism to challenge a conviction for
       unlawful use of a weapon by a felon where the underlying felony conviction had been based
       upon a statute later found unconstitutional. Because defendant “followed the proper procedure
       by filing a motion to suppress challenging his arrest without probable cause,” defendant
       insinuates that McFadden is similarly inapplicable.
¶ 36       We reject these arguments. Defendant does not explain why, if the void ab initio doctrine
       did not bar a statutory amendment from being revived in Blair or did not automatically
       invalidate the judgment of a predicate felony conviction in McFadden, it would invalidate
       probable cause. Such a contention is irreconcilable with Blair and McFadden.
¶ 37       We hold that the void ab initio doctrine does not retroactively invalidate probable cause
       based on a statute later held unconstitutional on federal constitutional grounds or on state
       constitutional grounds subject to the limited lockstep doctrine. In the instant case, Officer
       Barrera had probable cause at the time of defendant’s arrest, and thus there is no reason to
       suppress the evidence collected incidental to the arrest. Because we conclude that probable
       cause existed at the time of defendant’s arrest and that probable cause was not retroactively
       invalidated by the subsequent declaration of unconstitutionality on second amendment
       grounds, the exclusionary rule does not apply. Thus, there is no need to consider the good-faith
       exception to the exclusionary rule.

¶ 38                                         CONCLUSION
¶ 39       The void ab initio doctrine did not retroactively invalidate probable cause for defendant’s
       arrest because probable cause was predicated on a statute that was subsequently declared
       unconstitutional on federal grounds. Because probable cause is a component of both the
       federal and state search and seizure provisions, we follow federal law pursuant to the limited
       lockstep doctrine. Federal case law holds that probable cause for arrest would not be
       retroactively invalidated by subsequent declaration of a statute’s unconstitutionality on federal
       grounds. See DeFillippo, 443 U.S. 31; Charles, 801 F.3d 855. Carrera is distinguishable and
       does not dictate a different result because (1) Carrera involved strict application of a state
       jurisprudential doctrine—the void ab initio doctrine—to a state statute declared
       unconstitutional on purely state grounds, (2) Carrera did not analyze probable cause, as it was
       not at issue, and (3) the facts and issues presented in Carrera did not implicate the limited
       lockstep doctrine. See Carrera, 203 Ill. 2d 1. Our conclusion comports with this court’s


                                                   -9-
       decisions in Blair and McFadden. See Blair, 2013 IL 114122; McFadden, 2016 IL 117424. To
       hold that the void ab initio doctrine requires retroactive invalidation of probable cause would
       be tantamount to a repeal of the statute, which would violate separation of powers. Because
       probable cause is not invalidated, no fourth amendment violation has occurred. Therefore, we
       need not reach the issue of whether the good-faith exception to the exclusionary rule may
       apply. Consequently, we reverse the judgment of the appellate court and remand the case to the
       circuit court for further proceedings.

¶ 40       Reversed and remanded.

¶ 41       JUSTICE KILBRIDE, dissenting:
¶ 42       This opinion brings the demise of this court’s void ab initio doctrine one step closer. While
       once again purportedly “ ‘continu[ing] to reaffirm the principle that the void ab initio doctrine
       renders a facially unconstitutional statute unenforceable’ ” (supra ¶ 33 (quoting People v.
       McFadden, 2016 IL 117424, ¶ 20)), the majority simultaneously vitiates both that doctrine’s
       reason for being and our institutional duty to void statutes that are facially unconstitutional and
       to remediate the damage they have done. In reaching its decision, the majority construes this
       court’s opinion in People v. Carrera, 203 Ill. 2d 1, 16 (2002), so narrowly that it is effectively
       overruled. The majority’s analysis is fundamentally incompatible with stare decisis and our
       “paramount and constitutionally mandated function” to protect citizens’ constitutional rights
       from facially unconstitutional legislation. People v. Gersch, 135 Ill. 2d 384, 398 (1990).
       Because I cannot agree, I respectfully dissent.
¶ 43       In 1886, the United States Supreme Court explained that “[a]n unconstitutional act is not a
       law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is,
       in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby
       County, 118 U.S. 425, 442 (1886); see also supra ¶ 12 (quoting Gersch, 135 Ill. 2d at 399,
       quoting People v. Schraeberg, 347 Ill. 392, 394 (1932)). This court has consistently followed
       that formulation of the void ab initio doctrine, repeatedly deeming facially unconstitutional
       statutes void “ ‘from the beginning.’ ” Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting
       Black’s Law Dictionary 1604 (8th ed. 2004)). No one may be prosecuted in Illinois under a
       facially unconstitutional law because “ ‘[a]n invalid law is no law at all.’ ” (Internal quotation
       marks omitted.) Gersch, 135 Ill. 2d at 399 (quoting Van Driel Drug Store, Inc. v. Mahin, 47 Ill.
       2d 378, 381 (1970), quoting People ex rel. Barrett v. Sbarbaro, 386 Ill. 581, 590 (1944)).
       While we have occasionally permitted a somewhat more relaxed, equitable application of the
       void ab initio doctrine in civil cases, we have adhered to its strict application in criminal
       matters for decades. Indeed, we have actively championed strict application of the doctrine in
       criminal cases, “where a defendant’s constitutionally guaranteed rights are in need of
       vindication.” Perlstein, 218 Ill. 2d at 466.
¶ 44       While necessarily acknowledging this substantive backdrop (supra ¶ 12), the majority
       nonetheless chooses to distance itself from those precedents, relying instead on a faulty
       analogy that erroneously equates the “repeal” of a statute with a judicial declaration that it is
       void ab initio. According to the majority, “ ‘to construe the void ab initio doctrine as rendering
       a statute nonexistent is tantamount to saying that this court may repeal a statute. [Citation.]
       Such a result, however, would contravene our separation of powers clause.’ ” Supra ¶ 32


                                                     - 10 -
       (quoting People v. Blair, 2013 IL 114122, ¶ 29). Not surprisingly, however, the parties’ briefs
       do not raise the spectre of a “judicial repeal.” Applying the majority’s approach, even the
       Supreme Court’s 1886 description of a judicial finding of unconstitutionality would create a
       separation of powers violation. See Norton, 118 U.S. at 442 (explaining that “[a]n
       unconstitutional act is not a law; *** it is, in legal contemplation, as inoperative as though it
       had never been passed”). Used properly, “repeal” is, in fact, a legal term of art meaning
       “abrogation of an existing law by legislative act.” (Emphasis added.) A repeal may be
       “express,” relying on a “specific declaration in a new statute or main motion,” or “implied,”
       produced by an “irreconcilable conflict between an old law or main motion and a more recent
       law or motion.” Black’s Law Dictionary 1413 (9th ed. 2009). Regardless of the type, however,
       a “repeal” necessarily involves legislative action. See also Certain Taxpayers v. Sheahen, 45
       Ill. 2d 75, 81 (1970) (noting that, when one legislative act repeals another, the effect is to
       “obliterate” the original statute as though it never existed).
¶ 45        In contrast, the void ab initio doctrine was judicially adopted to vindicate our citizens’
       fundamental right to be free from unconstitutional legislation and to discourage its enactment.
       While the effect of this equitable doctrine may be similar to that of a legislative repeal, it is a
       distinct mechanism based on policy determinations specifically tied to the differing roles
       played by the courts and the legislature. Gersch, 135 Ill. 2d at 396. Because judicial decisions
       declare the existing law, they allow for only incremental adjustments as conditions evolve.
       This slower process allows courts to consider whether equitable factors justify the retroactive
       application of each change. In contrast, the legislature is empowered to alter the course of
       public policy sharply and to create unexpected new rights and responsibilities. For that reason,
       legislative actions are presumed to apply only prospectively. Gersch, 135 Ill. 2d at 396-97. “A
       constitutionally repugnant enactment suddenly cuts off rights that are guaranteed to every
       citizen [citation], and instantaneously perverts the duties owed to those citizens.” Gersch, 135
       Ill. 2d at 397. By failing to apply the void ab initio doctrine to inactivate facially
       unconstitutional statutes retroactively, this court would “effectively resurrect the amendment
       and provide a grace period *** during which our citizens would have been subject to”
       unconstitutional legislative action. Carrera, 203 Ill. 2d at 16. “To hold that a judicial decision
       that declares a statute unconstitutional is not retroactive would forever prevent those injured
       under the unconstitutional legislative act from receiving a remedy for the deprivation of a
       guaranteed right.” Gersch, 135 Ill. 2d at 397. Those considerations, along with our mandate to
       strike down statutes that infringe on citizens’ constitutional rights, have been the driving forces
       behind our strict application of the void ab initio doctrine in criminal cases. Gersch, 135 Ill. 2d
       at 398-99.
¶ 46        Here, the relevant statute eviscerated Illinois citizens’ fundamental right to possess
       firearms, contrary to the core values firmly ensconced in the second amendment of our federal
       constitution (U.S. Const., amend. II). People v. Aguilar, 2013 IL 112116, ¶ 16. The majority’s
       position drastically, and unnecessarily, undermines the protections provided by our strict
       application of the void ab initio doctrine. Without those protections, citizens unlucky enough
       to attract the attention of law enforcement while exercising their second amendment rights are
       exposed to otherwise impermissible prosecution for secondary conduct. In those instances, I
       continue to support this court’s application of the void ab initio doctrine both to protect
       guaranteed constitutional rights and to uphold our precedents shielding citizens from the sort


                                                   - 11 -
       of extreme collateral damage that, as in this case, can arise from arrests for facially
       unconstitutional offenses.
¶ 47        Contrary to the majority’s claim (supra ¶ 32), the effect of a judicial declaration that a
       statute is facially unconstitutional, and thus void ab initio, does not violate the separation of
       powers clause, at least no more than does the inevitable intertwining of our statutory
       constructions with the underlying statutory language. Village of Vernon Hills v. Heelan, 2015
       IL 118170, ¶ 19 (recognizing that the judicial construction of a statute effectively becomes part
       of that statute); Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 343 (2008) (and cases cited
       therein). The inherent interweaving of common law and statutory enactment has never been
       deemed an unconstitutional judicial crossover into the legislature’s exclusive territory, nor
       should it be. It is simply the natural outcome when each branch of government fulfills its
       intended function.
¶ 48        Similarly, legislative repeal and our strict application of the void ab initio doctrine both
       provide mechanisms exercising the complementary authority possessed by our coequal
       branches of government. Our strict application of the void ab initio doctrine, however, is not,
       and never has been, “tantamount to saying that this court may repeal a statute.” (Internal
       quotation marks omitted.) Supra ¶ 32. Perhaps that is the reason the parties’ briefs did not
       include that argument, necessitating the majority’s sua sponte discussion. The majority’s
       contrary conclusion suggests that many of our decisions applying the doctrine are
       unconstitutional, seriously undercutting their validity.
¶ 49        The majority’s approach also attacks our analysis in Carrera, when we applied the
       exclusionary rule to an extraterritorial arrest conducted in reliance on a statute later held
       facially unconstitutional. We declined to consider the good-faith exception, concluding that it
       “would run counter to our single subject clause and void ab initio jurisprudence.” Carrera, 203
       Ill. 2d at 16. We further declined to give effect to the historical fact that the arrest was
       authorized by a statute that, at the time, was valid because doing so “would effectively
       resurrect the amendment and provide a grace period *** during which our citizens would have
       been subject to extraterritorial arrests without proper authorization.” Carrera, 203 Ill. 2d at 16.
       The majority’s abandonment of that principle here is irreconcilable with its purported
       allegiance to our void ab initio doctrine as well as our rejection of the Supreme Court’s
       decision in Illinois v. Krull, 480 U.S. 340 (1987), in favor of the dissent authored by Justice
       O’Connor, based on the same rationale. See People v. Krueger, 175 Ill. 2d 60, 71-73 (1996)
       (discussing Krull, 480 U.S. at 361-69 (O’Connor, J., dissenting, joined by Brennan, Marshall,
       and Stevens, JJ.)). As this case makes clear, the creation of a grace period for violating our
       citizens’ constitutional rights with legislative impunity remains a serious concern and requires
       swift and complete remedial action. The AUUW provision at issue had been in effect since
       2000 and undoubtedly had been applied against hundreds, if not thousands, of Illinois citizens
       before we declared it facially unconstitutional in Aguilar, 2013 IL 112116. Although the
       majority is content to accept the dismissal of the void AUUW charges as defendant’s sole
       remedy, subjecting him to prosecution for secondary charges premised on his arrest for that
       nonoffense, I am not.
¶ 50        What consolation is it for the State to drop the facially unconstitutional charges that
       prompted an arrest only to subject the very citizen whose rights were violated to additional
       felonies discovered after that arrest? It is, after all, this court’s “duty not only to declare such a


                                                    - 12 -
       legislative act void, but also to correct the wrongs wrought through such an act by holding our
       decision retroactive.” Gersch, 135 Ill. 2d at 399. In its effort to avoid the harsh consequences
       sometimes resulting from the invalidation of legislation that tramples our citizens’
       fundamental rights, the majority overlooks the highly principled rationale underlying our void
       ab initio precedents. The ends thus achieved, however, cannot justify the means used to reach
       them under our case law.
¶ 51       To bolster its unjust conclusion, the majority also attempts to distinguish Carrera based on
       the nature of its underlying constitutional flaw. That attempt fails, however, by relying on a
       distinction without a difference. Although the statute in Carrera was declared unconstitutional
       for violating the state single subject rule, while the AUUW provision here violated the federal
       second amendment, that distinction is irrelevant. We expressly recognized as much when we
       explained that “[t]he void ab initio doctrine applies equally to legislative acts which are
       unconstitutional because they violate substantive constitutional guarantees [citation] and those
       that are unconstitutional because they are adopted in violation of the single subject clause of
       our constitution [citation].” Carrera, 203 Ill. 2d at 14-15. The majority’s rejection of that
       conclusion contradicts Carrera’s clear directive.
¶ 52       Compounding its error, the majority announces this unprecedented limitation on the void
       ab initio doctrine without citation to any legal authority. Supra ¶ 19. No principled basis exists
       for granting relief under the void ab initio doctrine when the statute is unconstitutional on state
       grounds but denying the same relief when the constitutional problem is federal. It is
       inconceivable that this court would apply the void ab initio doctrine to grant the defendant in
       Carrera full relief, bypassing the fourth amendment issues raised, but deny this defendant any
       remedy by now choosing to focus on those same fourth amendment questions. As long as a
       statute is facially unconstitutional, on any basis, the core justifications for applying our void
       ab initio doctrine remain the same: to preserve our citizens’ constitutional rights, to provide a
       full remedy for all legislative violations, and to discourage the future enactment of
       unconstitutional legislation.
¶ 53       Consistent with those principles, the legislature’s direct violation of defendant’s second
       amendment rights demands that he be granted full relief. The necessity of relief is even more
       obvious when the nature of the harm here is compared to Carrera. The statute granting the
       police extraterritorial jurisdiction to make arrests in Carrera was unconstitutional merely
       because it was improperly enacted; the statute’s substantive constitutionality was never in
       question. Carrera, 203 Ill. 2d at 13-14. In other words, if the police had exercised exactly the
       same jurisdictional authority under a statute enacted as part of a legislative package addressing
       a single subject, the validity of Carrera’s arrest would never have been in question.
       Nonetheless, despite the fact that the harm inflicted on Carrera was indirect, he received full
       relief from this court. In sharp contrast, the substance of the only offense underlying
       defendant’s arrest here was unconstitutional on its face, invalidating each and every
       prosecution based on it, yet he receives no relief. The direct and personal nature of the
       constitutional wrong done to defendant, and to every other unfortunate soul arrested on facially
       unconstitutional charges, is palpable, magnifying, not diminishing, the need for a full judicial
       remedy. When viewed in that light, the injustice of the majority’s disposition is manifest.
¶ 54       Further undercutting the majority’s comparison of the state versus federal constitutional
       violations, blackletter law recognizes a blanket constitutional right to possess firearms


                                                   - 13 -
       throughout the nation, with the federal right extended to the states through the application of
       the fourteenth amendment. People v. Aguilar, 2013 IL 112116, ¶ 17 (citing McDonald v. City
       of Chicago, 561 U.S. 742 (2010), for the proposition that the second amendment is applicable
       to the states through the due process clause of the fourteenth amendment); Coram v. State of
       Illinois, 2013 IL 113867, ¶ 49 (stating the same proposition); Wilson v. County of Cook, 2012
       IL 112026, ¶ 11 (same). That constitutional mandate is thus no less a part of Illinois citizens’
       constitutional rights than is the single subject rule. Drawing invisible lines based on the origin
       of citizens’ basic rights ignores their universality as well as what is at stake if they are
       disregarded.
¶ 55        The majority’s additional attempts to distinguish Carrera due to the State’s forfeiture of
       the fourth amendment questions there (supra ¶ 20) again contradict our express language. In
       discussing the alleged forfeiture, we stated that it was “not necessary *** to determine whether
       the State has waived the [exclusionary rule] argument” or “consider whether the alleged
       waiver must be excused under the circumstances at bar.” Carrera, 203 Ill. 2d at 11. Thus,
       Carrera cannot be properly distinguished based on forfeiture because we never considered the
       forfeiture question on its merits. In fact, we declined to address the State’s alleged forfeiture
       precisely because it was irrelevant to our decision.
¶ 56        Instead, we expressly “[chose] to resolve [the] cause on narrower grounds” than the fourth
       amendment. Carrera, 203 Ill. 2d at 13. And our failure to address those issues was not a mere
       oversight. Recognizing the critical role played by our state doctrine, we explained that “[t]he
       result that we reach[ed was] dictated by application of the void ab initio doctrine.” (Emphasis
       added.) Carrera, 203 Ill. 2d at 13-14. The majority here, however, turns Carrera on its head,
       completely ignoring this court’s stated preference for applying the void ab initio doctrine even
       when presented with fourth amendment matters potentially implicating limited lockstep.
¶ 57        The majority’s analysis continues to ramp up the legal ambiguity, creating uncertainty over
       our abandonment of the test we mandated in Krueger “to delineate the scope of our state
       exclusionary rule.” Under that test, we must “ ‘carefully balance the legitimate aims of law
       enforcement against the right of our citizens to be free from unreasonable governmental
       intrusion.’ ” Krueger, 175 Ill. 2d at 75 (quoting People v. Tisler, 103 Ill. 2d 226, 245 (1984)).
       We resolved that question in Carrera in favor of protecting our citizens’ substantive rights
       when, as here, the arrest was premised on a facially unconstitutional statute. Carrera, 203 Ill.
       2d at 14-15. Because “[a]n unconstitutional law ‘confers no right, imposes no duty and affords
       no protection’ ” (internal quotation marks omitted) (supra ¶ 12), no duty exists to enforce an
       unconstitutional law, and conversely, the mere presence of a facially unconstitutional law on
       the books affords the State no protection for the consequences of any arrests based on it.
¶ 58        The murkiness of the opinion’s rationale further deepens when it chooses to focus on
       probable cause rather than on our void ab initio doctrine. While the historical fact that probable
       cause existed at the time of the arrest undoubtedly cannot be altered at this late date, probable
       cause is not, and has never been, at issue here. The majority, however, uses the existence of
       contemporaneous probable cause to justify its decision to address fourth amendment matters
       rather than the effect of our void ab initio doctrine, contrary to our analysis in Carrera. Supra
       ¶¶ 36-37. In doing so, the majority answers the wrong question. The majority’s discussion of
       probable cause is no more relevant here than a substantive analysis of the good-faith exception
       or the exclusionary rule was in Carrera. This case is not about whether probable cause can be


                                                   - 14 -
       retroactively invalidated. This case involves only the suppression of evidence gathered after an
       arrest for a facially unconstitutional offense.
¶ 59       Just as we have never concerned ourselves with the good-faith exception’s retroactive
       effect on probable cause, we should not concern ourselves now with the retroactive effect of
       the void ab initio doctrine on probable cause. The real question is limited to whether that
       doctrine creates a remedy for defendant following his arrest for a facially unconstitutional
       substantive offense. And we need not invalidate defendant’s arrest for lack of probable cause
       to fashion the necessary remedy. We simply need to apply the void ab initio doctrine as we did
       in Carrera. We can, and should, rely on our own nonconstitutional precedents whenever
       possible. People v. White, 2011 IL 109689, ¶ 144 (explaining that constitutional challenges are
       addressed only when they are essential to the case’s disposition). It is both unnecessary and
       unwise to consider whether probable cause is retroactively undermined by either fourth
       amendment considerations or our void ab initio doctrine.
¶ 60       Both Carrera and this case hinge exclusively on the application of our void ab initio case
       law, obviating any examination of forfeiture or fourth amendment questions. Carrera, 203 Ill.
       2d at 11, 13-14. When applying the void ab initio doctrine, the policy considerations
       underlying probable cause, such as discouraging police misconduct, are irrelevant. The
       conduct of the police bears neither fault nor consideration in determining the proper outcome
       in this case. The only policy considerations that matter are those that historically animated our
       void ab initio doctrine. We adopted that doctrine to protect our citizens’ rights from legislative
       overreach and to discourage the enactment of facially unconstitutional laws. Carrera, 203 Ill.
       2d at 16. See also Krueger, 175 Ill. 2d at 72-75 (adopting similar rationale to the dissent in
       Krull, 480 U.S. at 361-69 (O’Connor, J., dissenting, joined by Brennan, Marshall, and Stevens,
       JJ.)). As we did in Carrera, we should apply the doctrine here to suppress the evidence
       gathered after defendant’s arrest for a facially unconstitutional offense.
¶ 61       Attempting to find additional support for its departure from the strict application of our
       void ab initio doctrine, however, the majority turns to federal case law. Relying on Michigan v.
       DeFillippo and United States v. Charles, the opinion argues that “[f]ederal case law is clear
       that *** probable cause would not be retroactively invalidated by the subsequent invalidation
       of the statute” underlying defendant’s arrest. Supra ¶ 29 (citing 443 U.S. 31, and 801 F.3d
       855). Although that statement is correct as far as it goes, this is not a federal case, and this court
       is not bound by the federal case law cited. People v. Radojcic, 2013 IL 114197, ¶ 36. We may
       not abandon our own state doctrines based solely on contrary federal authority, at least not
       without properly justifying our break from stare decisis. In this case, the majority’s
       unexplained break is particularly egregious because federal courts do not adhere to our unique
       construction of the void ab initio doctrine and, indeed, rarely even use that term. Because
       federal courts do not abide by our void ab initio jurisprudence, the rationale and outcomes in
       DeFillippo and Charles offer us absolutely no guidance here.
¶ 62       Indeed, the differing results in those cases should come as no surprise after this court’s
       rejection in Krueger of the United States Supreme Court’s similar position in Krull. Relying on
       the same policy rationales underlying our decision in Carrera, Krueger expressly rejected the
       holding in Krull that “the fourth amendment exclusionary rule does not bar the use of evidence
       seized by a police officer who reasonably relied, in objective good faith, on a statute that *** is
       later declared to be unconstitutional.” Krueger, 175 Ill. 2d at 71. Instead, we knowingly


                                                    - 15 -
       departed from lockstep in a fourth amendment case and adopted Justice O’Connor’s Krull
       dissent, an opinion joined by Justices Brennan, Marshall, and Stevens. Krueger, 175 Ill. 2d at
       71-75 (discussing Krull, 480 U.S. at 361-69). That dissent focused on the “serious threat to
       fourth amendment values” and liberty created by approving “ ‘a legislature’s unreasonable
       authorization of searches [that] may affect thousands or millions.’ ” Krueger, 175 Ill. 2d at 72,
       73 (quoting Krull, 480 U.S. at 365 (O’Connor, J., dissenting, joined by Brennan, Marshall, and
       Stevens, JJ.)). We reaffirmed that position just a few short years ago in Fitzpatrick, when we
       once again relied on Illinois’s “long-standing state tradition of excluding evidence obtained
       under the authority of an unconstitutional statute. Krueger, 175 Ill. 2d at 74-75.” (Emphasis
       added.) People v. Fitzpatrick, 2013 IL 113449, ¶ 16. I see no principled reason for rejecting
       that same rationale now, without explanation, following defendant’s arrest for “something that
       was never a crime” (People v. Shinaul, 2017 IL 120162, ¶ 14). Unlike today’s majority, I
       remain “[un]willing to recognize an exception to our state exclusionary rule that will provide a
       grace period for unconstitutional search and seizure legislation, during which time our
       citizens’ prized constitutional rights can be violated with impunity.” Krueger, 175 Ill. 2d at 75.
       In light of the facially unconstitutional offense in this case, the need for continuing this stance
       is even stronger. The majority’s position would create a legislative grace period lasting at least
       13 years and affecting innumerable Illinois citizens guilty of nothing more than the exercise of
       their constitutionally protected rights. Krueger, 175 Ill. 2d at 75 (relying on the same factors).
¶ 63        In light of our precedents applying the void ab initio doctrine rather than fourth
       amendment case law, the majority’s discussion of limited lockstep remains a mystery. Despite
       recognizing our refusal to address the merits of the State’s fourth amendment arguments in
       Carrera, 203 Ill. 2d at 12-14 (supra ¶ 18), the majority asserts that its result in this case is
       compelled by our adherence to fourth amendment jurisprudence (supra ¶¶ 28-29), raising new
       questions about the continuing validity of our contrary analyses in Carrera and Krueger, as
       well as other void ab initio decisions. Because the majority declines to overrule those
       precedents directly, it is apparently content to disavow them sub silentio.
¶ 64        The opinion is also surprisingly inconsistent with our statements in People v. Caballes:
               “Noting this state’s history of applying the exclusionary rule under the state
               constitution as well as a long-standing tradition of barring evidence gathered under
               the authority of an unconstitutional statute, this court rejected the Krull good-faith rule
               as creating a ‘grace period for unconstitutional search and seizure legislation,’ ***
               [and] ‘knowingly depart[ed]’ from the lockstep tradition to give effect to another
               tradition—the exclusion of evidence gathered in violation of the state constitution’s
               prohibition of unreasonable searches and seizures.” (Emphasis added.) Caballes, 221
               Ill. 2d at 302-03.
       In Caballes, we also recognized that “Krueger was a case about remedies” and that lockstep
       was not implicated because in Krueger “[w]e construed state law as providing a remedy for the
       constitutional violation even though the federal constitution did not require one.” Caballes,
       221 Ill. 2d at 303. The same is true here. In the absence of a federal remedy, defendant seeks
       alternative relief under our state void ab initio doctrine, namely, the suppression of evidence
       obtained pursuant to his arrest on a facially unconstitutional offense. Despite this case being as
       much about remedies as Krueger, and contrary to our long-held state tradition of strictly



                                                   - 16 -
       applying the void ab initio doctrine to facially unconstitutional criminal statutes, the majority
       rejects that analysis here.
¶ 65       To complete its discussion, the majority opinion concludes that strictly applying the void
       ab initio doctrine here would conflict with our decisions in People v. McFadden, 2016 IL
       117424, and People v. Blair, 2013 IL 114122. While rejecting the argument that McFadden is
       distinguishable, the majority chides defendant for not explaining why the void ab initio
       doctrine would invalidate probable cause if it did not automatically invalidate the prior
       conviction in McFadden. Once again, because I believe the issue in this case is not properly
       defined by the doctrine’s retroactive effect on probable cause, I cannot agree with the majority.
       The majority’s focus in McFadden was on that defendant’s felony status and the procedural
       hoops he was required to jump through before the State could be precluded from using his
       facially unconstitutional AUUW conviction as the predicate felony for a charge of unlawful
       use of a weapon by a felon filed years later. Because the majority’s approach in that case
       discussed an entirely different question, I agree with defendant that McFadden is
       distinguishable.
¶ 66       This court’s decision in Blair is equally inapt. There, the court was considering whether an
       amendment to the armed violence statute revived an armed robbery sentencing enhancement
       declared unconstitutional in Hauschild. We noted that the “actual existence” of the statute “is
       an operative fact and may have consequences which cannot justly be ignored. The past cannot
       always be erased by a new judicial declaration.” (Internal quotation marks omitted.) Blair,
       2013 IL 114122, ¶ 29. That explanation, however, begs the legal question here, when the issue
       is not even remotely similar. In truth, no remedial doctrine can ever alter historical fact. Our
       case law applying the void ab initio doctrine, however, has looked beyond historical fact to
       fulfill this court’s duty to uphold the constitution and provide justice to those harmed by
       unconstitutional legislation. For example, our rejection of the Supreme Court’s holding in
       Krull was due to our abiding concern over the creation of a grace period when the legislation
       could freely violate citizens’ guaranteed rights. The same rationale supported our use of the
       void ab initio doctrine in Carrera. Our decisions in those cases were driven by our mandate to
       protect citizens’ constitutional rights from legislative overreach and to provide an effective
       remedy when those rights are breached. Along with our other void ab initio precedents,
       Carrera and Krueger squarely put it within the power, and the inherent duty, of this court to
       remedy the consequences defendant faces here due solely to the enactment of the facially
       unconstitutional AUUW provision.
¶ 67       It is not enough simply to bar the prosecution of the facially unconstitutional offense while
       permitting a defendant to be tried for an offense discovered only later when “ ‘[a]n invalid law
       is no law at all.’ ” (Internal quotation marks omitted.) Gersch, 135 Ill. 2d at 399 (quoting
       Van Driel Drug Store, Inc. v. Mahin, 47 Ill. 2d 378, 381 (1970), quoting People ex rel. Barrett
       v. Sbarbaro, 386 Ill. 581, 590 (1944)). Since our decision in Blair, we have reiterated that “a
       statutory section cannot be ‘present’ if it is void ab initio.” People v. Mosley, 2015 IL 115872,
       ¶ 55. And, as even Blair recognized, “ ‘[t]he effect of enacting an unconstitutional amendment
       to a statute is to leave the law in force as it was before the adoption of the amendment.’ ” Blair,
       2013 IL 114122, ¶ 30 (quoting Gersch, 135 Ill. 2d at 390). Despite its stated reliance on Blair,
       the majority fails to apply that proposition here. If we apply the law as it stood prior to the
       enactment of the unconstitutional AUUW provision, defendant would not have been arrested,


                                                   - 17 -
       and the FOID card violations would not have been discovered. To provide a complete remedy,
       therefore, we must suppress the post-arrest FOID card evidence.
¶ 68       To hold otherwise would open wide the judicial doors to abuse of our system of criminal
       justice. Imagine the myriad possibilities for abuse if citizens could be arrested for overtly
       unconstitutional offenses that were later nol prossed while the evidence obtained pursuant to
       those arrests was used to prosecute otherwise unreachable conduct. This court’s longstanding
       formulation of the void ab initio doctrine was intended to prevent just that sort of misuse of
       legislative power.
¶ 69       When citizens become the unwitting victims of facially unconstitutional legislation, we
       must grant them the fullest relief possible in the interests of justice. Only in that way may the
       temptation to enact unconstitutional criminal statutes in the hopes of reaching secondary
       conduct be quelled. Otherwise, where is the justice for those citizens arrested during a
       judicially sanctioned legislative grace period for a statute that makes constitutionally protected
       acts illegal? The only truly effective, and just, relief is to suppress the evidence discovered
       after those arrests. Not only is that remedy straightforward and practicable, but it fulfills the
       vital principles underlying this court’s formulation of the void ab initio doctrine.
¶ 70       In contrast, the result created by the majority’s disposition sharply undercuts those goals.
       Because the majority’s view “commands that which the Constitution denies the State the
       power to command and makes ‘a crime out of what under the Constitution cannot be a
       crime,’ ” I dissent from its incremental, sub silentio, dismantling of our void ab initio doctrine.
       Michigan v. DeFillippo, 443 U.S. 31, 45 (1979) (Brennan, J., dissenting, joined by Marshall
       and Stevens, JJ.) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971)). “[O]ur
       choice of a rule of decision on matters governed by both the state and federal constitutions has
       always been and must continue to be predicated on our best assessment of the intent of the
       drafters, the delegates, and the voters—this is our solemn obligation. In keeping with this
       obligation, *** this court adopted a limited lockstep approach in [People v.] Tisler[, 103 Ill. 2d
       226 (1984),] and modified it in Krueger and Washington to allow consideration of state
       tradition and values as reflected by long-standing state case precedent.” Caballes, 221 Ill. 2d at
       313-14. Here, the strict application of the void ab initio doctrine in criminal cases is an
       enduring state tradition reflected in our case law. If nothing else, stare decisis dictates that we
       continue to apply that doctrine and suppress the evidence gathered against defendant after his
       arrest for “something that was never a crime” (Shinaul, 2017 IL 120162, ¶ 14).
¶ 71       If, however, the majority wishes to change course at this late date and vitiate our
       longstanding application of the void ab initio doctrine, it should do so forthrightly. While the
       majority’s reluctance to admit its progressive eradication of the doctrine might be
       understandable if we were routinely confronted with harsh consequences from its application,
       that is far from true. “[T]he void ab initio doctrine does not apply to an as-applied
       constitutional challenge” (emphasis in original) (People v. Thompson, 2015 IL 118151, ¶ 32),
       and facial challenges remain the most difficult constitutional claims to mount (People v. Davis,
       2014 IL 115595, ¶ 25). When raised, they are rarely successful. And even more rarely do the
       few successful challenges render void ab initio statutes defining criminal offenses, triggering
       the strict application of the doctrine.
¶ 72       The elimination of the void ab initio doctrine would, of course, require this court to reverse
       numerous well-reasoned precedents previously fundamental to our criminal jurisprudence.


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       Perhaps the need for special justification to break from stare decisis explains the majority’s
       failure to acknowledge the serious impact its recent decisions have had on the viability of the
       doctrine. See People v. Colon, 225 Ill. 2d 125, 146 (2007) (explaining that every departure
       from stare decisis must be “specially justified” (internal quotation marks omitted)). Regardless
       of the source of the majority’s refusal to address the doctrine’s erosion, I choose to adhere to
       the case law we have so carefully fashioned to protect the fundamental rights of Illinois
       citizens.
¶ 73       Our continued adherence to the void ab initio doctrine in precedents such as Carrera is
       ultimately necessary because, when faced with “a statute [that] is violative of constitutional
       guarantees, we have a duty not only to declare such a legislative act void, but also to correct the
       wrongs wrought through such an act by holding our decision retroactive.” Gersch, 135 Ill. 2d
       at 399. The doctrine represents this court’s considered decision to preclude the creation of a
       grace period permitting our citizens to be arrested, prosecuted, and deprived of their liberty all
       for the simple exercise of their fundamental constitutional rights. It is the summation of the
       principles of justice that drove us to reject the Supreme Court’s analysis in Krull, reverse the
       defendant’s murder conviction and remand for a new trial in Gersch, and suppress the
       post-arrest evidence in Carrera. It is also the consideration that should animate this court’s
       analysis in the present case. Both stare decisis and fundamental fairness demand no less. For
       that reason, I would continue to apply the void ab initio doctrine consistent with our
       established case law, and accordingly, I dissent from the majority opinion.




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