                                Illinois Official Reports

                                        Appellate Court



                           People v. Bernard, 2015 IL App (2d) 140451



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                   MARY C. BERNARD, Defendant-Appellee.

District & No.            Second District
                          Docket No. 2-14-0451

Filed                     March 3, 2015

Held                       On appeal from the trial court’s order granting defendant’s amended
(Note: This syllabus motion to quash her arrest and suppress evidence, where the evidence
constitutes no part of the supporting her charged offense of obstruction of justice was not the
opinion of the court but fruit of the purportedly unconstitutional police conduct of handcuffing
has been prepared by the defendant and placing her in the backseat of the squad car behind the
Reporter of Decisions bottle of pills an officer had just found when defendant removed the
for the convenience of handcuffs, grabbed the bottle and took all of the pills, since her action
the reader.)               of swallowing the pills was independent of the alleged police
                           illegality; therefore, the appellate court held that the exclusionary rule
                           did not apply.



Decision Under            Appeal from the Circuit Court of Kendall County, No. 13-CF-28; the
Review                    Hon. Timothy J. McCann, Judge, presiding.



Judgment                  Reversed and remanded.


Counsel on                Eric C. Weis, State’s Attorney, of Yorkville (Lawrence M. Bauer and
Appeal                    Barry W. Jacobs, both of State’s Attorneys Appellate Prosecutor’s
                          Office, of counsel), for the People.

                          Liam Dixon, of Law Offices of Liam Dixon, of Aurora, for appellee.
     Panel                    JUSTICE BIRKETT delivered the judgment of the court, with
                              opinion.
                              Justices Zenoff and Jorgensen concurred in the judgment and opinion.


                                               OPINION

¶1        The State appeals from an order of the circuit court of Kendall County granting the
       amended motion of defendant, Mary C. Bernard, to quash her arrest and suppress evidence.
       Because the evidence supporting her charged offense was not the fruit of the purportedly
       unconstitutional police conduct, and therefore the exclusionary rule did not apply, we reverse
       and remand.

¶2                                         I. BACKGROUND
¶3         The following facts were established at the hearing on defendant’s motion. At
       approximately 2:30 a.m. on January 19, 2013, Officer Johnson and several other officers of
       the Aurora police department were dispatched to a residence to investigate a report of a
       domestic disturbance involving a suicidal individual. When Officer Johnson arrived, he was
       invited into the home and spoke to the mother of Cody Sansalone, the young man causing the
       disturbance and threatening to commit suicide.
¶4         Officer Johnson then spoke to Sansalone, who said that he wanted to kill himself by
       ingesting pills. When Officer Johnson asked him where the pills were, Sansalone told him
       that they were on a computer desk upstairs.
¶5         Officer Johnson then went up the stairs, saw a computer desk on a landing, but saw no
       pills on the desk. About that time, Sansalone’s younger sister told Officer Johnson that
       Sansalone and defendant were always bringing ecstasy1 into the house. She also told Officer
       Johnson that defendant had just taken a prescription pill bottle into the bathroom.
¶6         Officer Johnson and Sergeant Wiencek knocked several times on the bathroom door, but
       defendant did not answer. When defendant finally opened the door, Officer Johnson saw her
       standing over the toilet with a prescription pill bottle in her hand. When Officer Johnson
       asked her what she was holding, she answered that it was her herpes medication. When he
       asked whether he could look in the bottle, defendant refused to give him the bottle. He then
       grabbed the bottle, saw her name on it, opened it, and observed pills of various colors. Based
       on his 25 years’ experience as a police officer and the information he had received from
       Sansalone’s sister, he believed that the pills were ecstasy.
¶7         After seeing the pills in the bottle, Officer Johnson arrested defendant for possession of
       the pills. When he advised defendant that she was under arrest, she became irate, flailed her
       arms, and resisted being handcuffed.
¶8         After Sergeant Wiencek had handcuffed defendant behind her back, Officer Johnson
       placed her in the backseat of his squad car. Officer Johnson put the bottle holding the pills in

             1
           Ecstasy is a common name for 3,4-methylenedioxy-methamphetamine (also known as MDMA),
       an illegal drug that acts as both a stimulant and a psychedelic. See http://www.drugabuse.
       gov/publications/drugfacts/mdma-ecstasy-or-molly (last visited Feb. 10, 2015).

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       a cup holder next to the driver’s seat. As Officer Johnson sat in the squad car completing an
       arrest form, defendant removed the handcuffs, grabbed the bottle, and swallowed all of the
       pills.
¶9         Defendant was indicted on one count of obstruction of justice, based on her having
       swallowed the pills. See 720 ILCS 5/31-4(a) (West 2012). Defendant filed an amended
       motion to quash her arrest and suppress evidence, essentially contending that, because the
       police conduct in seizing and searching the pill bottle had violated her fourth-amendment
       rights, the evidence related to her swallowing the pills, being the fruit of that police
       misconduct, must be suppressed. The State responded that defendant lacked standing to
       challenge the legality of the police conduct and that the plain-view doctrine justified the
       police conduct. Alternatively, the State contended that, because the evidence of obstruction
       of justice was unrelated to the alleged police misconduct, the exclusionary rule did not apply
       to that evidence. After the trial court granted defendant’s motion and denied the State’s
       motion to reconsider, the State filed a certificate of impairment (see Ill. S. Ct. R. 604(a)(1)
       (eff. Feb. 6, 2013)) and a timely notice of appeal.

¶ 10                                          II. ANALYSIS
¶ 11       When reviewing a trial court’s ruling on a motion to quash and suppress, we greatly defer
       to the court’s factual findings and will reverse those findings only if they are against the
       manifest weight of the evidence. People v. Close, 238 Ill. 2d 497, 504 (2010). However, we
       review de novo the ultimate decision to grant or deny the motion. Close, 238 Ill. 2d at 504.
¶ 12       Under the exclusionary rule, courts are precluded from admitting evidence that is
       gathered by the police in violation of the fourth amendment. People v. Sutherland, 223 Ill. 2d
       187, 227 (2006). The fruit-of-the-poisonous-tree doctrine is an outgrowth of the exclusionary
       rule. People v. Henderson, 2013 IL 114040, ¶ 33. Under that doctrine, a fourth-amendment
       violation is deemed the poisonous tree, and any evidence obtained by exploiting that
       violation will be suppressed as fruit of that tree. Henderson, 2013 IL 114040, ¶ 33. The test
       for whether evidence is fruit of the poisonous tree was best articulated in Wong Sun v. United
       States, 371 U.S. 471 (1963). Henderson, 2013 IL 114040, ¶ 33. In discussing the doctrine,
       the United States Supreme Court identified the dispositive question as whether, granting the
       establishment of the primary illegality, the objected-to evidence was obtained by exploiting
       that illegality or instead by a means sufficiently distinguishable to be purged of the primary
       taint. Henderson, 2013 IL 114040, ¶ 33 (citing Wong Sun, 371 U.S. at 488). Said another
       way, a court must consider whether the chain of causation proceeding from the
       unconstitutional conduct became so attenuated, or was interrupted by some intervening
       circumstance, as to remove the taint imposed by the original illegality. Henderson, 2013 IL
       114040, ¶ 33 (citing United States v. Crews, 445 U.S. 463, 471 (1980)).
¶ 13       Moreover, the Supreme Court has rejected a “but for” test, under which evidence would
       be deemed inadmissible simply because it would not have been discovered but for the
       primary illegality. Henderson, 2013 IL 114040, ¶ 34 (citing Wong Sun, 371 U.S. at 487-88).
       Therefore, evidence that comes to light through a chain of causation that began with an
       illegal search or seizure is not necessarily inadmissible. Henderson, 2013 IL 114040, ¶ 34.
¶ 14       The Illinois Supreme Court has recognized that there is no authority for extending the
       exclusionary rule to evidence of conduct that arose in reaction to an illegal search or seizure.
       People v. Villarreal, 152 Ill. 2d 368, 378 (1992). Therefore, a defendant who commits an

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       unlawful homicide, assault, or other offense in response to a fourth-amendment violation
       would not be entitled to suppression of evidence of the subsequent crime. Villarreal, 152 Ill.
       2d at 378. The exclusionary rule does not apply to evidence of a defendant’s actions directed
       against the police, regardless of the illegality of the police conduct. Villarreal, 152 Ill. 2d at
       378-79.2 To countenance, through the use of the exclusionary rule, an unlawful version of
       self-help would encourage unlawful and retaliatory conduct. Villarreal, 152 Ill. 2d at 378.
       Indeed, such a policy would be fundamentally contrary to a civilized rule of law. Villarreal,
       152 Ill. 2d at 378.
¶ 15       In our case, even if the police violated defendant’s fourth-amendment rights before she
       swallowed the pills, an issue we need not decide, the evidence related to her swallowing the
       pills should not have been excluded. That is so because that evidence was related to an
       offense committed in response to the purported fourth-amendment violation. Defendant’s act
       of swallowing the pills was directed against the police in that it interfered with their
       investigation of potential criminal activity by defendant. As our supreme court has directed,
       the exclusionary rule must not be used to countenance and encourage a defendant’s unlawful
       and retaliatory response to perceived police misconduct. Villarreal, 152 Ill. 2d at 378.
       Application of the exclusionary rule in this case would do exactly that. Thus, the trial court
       erred in applying the exclusionary rule to the evidence related to defendant’s swallowing the
       pills.
¶ 16       Further, we note that the primary purpose underlying the exclusionary rule and its related
       fruit-of-the-poisonous-tree doctrine, deterrence of police misconduct (see United States v.
       Calandra, 414 U.S. 338, 347 (1974)), would not be served by excluding the evidence related
       to defendant’s swallowing the pills. The police will not be deterred from unconstitutional
       conduct by suppressing evidence that was not a product of that misconduct. See Hudson v.
       Michigan, 547 U.S. 586, 596 (2006) (value of deterrence depends upon the strength of the
       incentive to violate the constitution). Here, because the purported police misconduct did not
       produce the evidence related to defendant’s swallowing the allegedly illegally seized
       evidence, application of the exclusionary rule to that evidence would not be an effective
       deterrent.3
           2
              This concept has been referred to by our appellate courts as the “distinct-crime exception” to the
       fruit-of-the-poisonous-tree doctrine. See, e.g., People v. Brown, 345 Ill. App. 3d 363, 367 (2003).
            3
              At oral argument, defense counsel suggested that Officer Johnson engaged in misconduct that
       triggered the exclusionary rule when he placed defendant in the squad car with the pills, thereby
       creating the opportunity for her to swallow them. Although we do not agree that Officer Johnson
       engaged in any inappropriate conduct by placing a handcuffed defendant into the backseat of the squad
       car and the pills in the front console next to him, it does not matter, as that asserted misconduct was not
       the type governed by the exclusionary rule. Rather, the exclusionary rule is designed to deter police
       misconduct of a constitutional magnitude. See Sutherland, 223 Ill. 2d at 227 (exclusionary rule is a
       judicially created remedy that prospectively protects fourth-amendment rights by deterring future
       police misconduct); see also Mapp v. Ohio, 367 U.S. 643, 648 (1961) (exclusionary rule is a deterrent
       safeguard without which the fourth amendment would be reduced to a form of words); Elkins v. United
       States, 364 U.S. 206, 217 (1960) (deterrent purpose of the exclusionary rule is to compel respect for a
       constitutional guaranty in the only effective way available, by removing the incentive to disregard the
       constitution). Even if Officer Johnson’s conduct in placing defendant and the pills in the squad car was
       improper, it certainly did not implicate the constitution and thereby trigger application of the
       exclusionary rule.

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¶ 17       Defendant contends that her swallowing the pills was not independent of the asserted
       police illegality, because, without that illegality, there would have been no evidence for her
       to swallow. That argument, however, urges a “but for” application of the
       fruit-of-the-poisonous-tree doctrine, which, as discussed, has been rejected. See Henderson,
       2013 IL 114040, ¶ 34.
¶ 18       Based on the foregoing, we hold that the exclusionary rule did not apply to the evidence
       related to the crime of obstruction of justice. Therefore, we reverse on that basis alone and do
       not reach the parties’ other contentions.

¶ 19                                   III. CONCLUSION
¶ 20      For the reasons stated, we reverse the order of the circuit court of Kendall County
       granting defendant’s amended motion to quash her arrest and suppress evidence, and we
       remand the cause.

¶ 21      Reversed and remanded.




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