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                                Appellate Court                            Date: 2016.02.18
                                                                           09:22:04 -06'00'




                   People v. Holmes, 2015 IL App (1st) 141256



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption            DAVID HOLMES, Defendant-Appellee.



District & No.     First District, Fifth Division
                   Docket No. 1-14-1256



Filed              November 25, 2015
Rehearing denied   December 31, 2015


Decision Under     Appeal from the Circuit Court of Cook County, No. 12-CR-11423; the
Review             Hon. Dennis J. Porter, Judge, presiding.



Judgment           Affirmed.



Counsel on         Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal             Carol L. Gaines, 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.



Panel              JUSTICE PALMER delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Reyes and Justice Lampkin concurred in the
                   judgment and opinion.
                                               OPINION


¶1       Defendant, David Holmes, was arrested when a Chicago police officer observed a
     revolver in his waistband. After placing defendant under arrest, police also discovered that he
     did not have a Firearm Owner’s Identification (FOID) card, and defendant was subsequently
     charged with, inter alia, two counts of aggravated unlawful use of a weapon (AUUW) for
     carrying a firearm without a valid FOID card (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(C)
     (West 2012)).
¶2       Following defendant’s arrest, the Illinois Supreme Court issued its decision in People v.
     Aguilar, 2013 IL 112116. Thereafter, defendant filed a motion to quash arrest and suppress
     evidence with respect to the two FOID card counts. He argued that his arrest was invalid, as
     the probable cause for his arrest was based on the portion of the AUUW statute found
     unconstitutional in Aguilar. After a hearing, the trial court granted defendant’s motion.
¶3       The State appeals, arguing the trial court erred by granting defendant’s motion to quash
     arrest and suppress evidence. For the following reasons, we affirm.

¶4                                       I. BACKGROUND
¶5       In June 2012, the State charged defendant with two counts of AUUW for carrying an
     uncased, loaded, and immediately accessible firearm (720 ILCS 5/24-1.6(a)(1), (a)(2),
     (a)(3)(A) (West 2012)), and two counts of AUUW for carrying a firearm without a valid
     FOID card (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(C) (West 2012)). Following the decision
     in Aguilar, the State conceded that the two counts based on subsection (a)(3)(A) for carrying
     an uncased, loaded, and immediately accessible weapon (counts I and III) should be
     dismissed. The State entered a nolle prosequi on those counts.
¶6       In January 2014, defendant filed a motion to quash his arrest and suppress evidence1
     with respect to the two remaining AUUW counts, alleging that his arrest violated his right to
     be free from unreasonable search and seizure under the state and federal constitutions. He
     argued that police lacked probable cause to believe he was committing a crime. Defendant
     noted the decision in Aguilar and asserted that the good-faith exception to the exclusionary
     rule did not apply where police were enforcing an unconstitutional statute. In support of his
     assertion, defendant cited to People v. Carrera, 203 Ill. 2d 1 (2002).
¶7       A hearing on defendant’s motion commenced in February 2014. At the hearing, Chicago
     police officer Barrera testified that he was working near the 63rd Street Beach at
     approximately 9 p.m. on June 8, 2012, when he observed that defendant had a revolver
     sticking out of his waistband. Barrera approached defendant, told him to place his hands on
     his head, and then reached into defendant’s waistband and removed the revolver. Barrera’s
     partner placed defendant under arrest. After defendant was arrested, another officer
     researched defendant’s FOID card status. Barrera conceded that before arresting defendant,
     he did not know any information about defendant.
¶8       During arguments, defense counsel asserted that no probable cause existed “for a
     violation of any law,” as the officer was investigating defendant for carrying a concealed gun

        1
         Defendant later orally amended the motion to also ask for relief from the evidence seized.

                                                   -2-
       in public, and the Aguilar court had found that portion of the AUUW statute unconstitutional.
       Defense counsel likened defendant’s case to Carrera, positing that the supreme court in that
       case “basically ruled that officers cannot use the good faith exception when that good faith
       exception is based on an unconstitutional statute.” The State responded that the gun was in
       plain view, the police officers’ actions were not unreasonable, and Aguilar did not invalidate
       the FOID card provision of the AUUW statute.
¶9         The trial court held the officer lacked probable cause for defendant’s arrest given that, if a
       statute is void ab initio, it is as if it never existed. The court noted defendant’s case was “kind
       of unfortunate because the officer didn’t do anything wrong at the time” and the officer could
       have effectuated a valid Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)) and inquired right
       away whether defendant had a FOID card. However, the officer did not do so. Thus, the court
       granted defendant’s motion.
¶ 10       The State filed a motion to reconsider the quashed arrest, arguing, inter alia, that
       Carrera,2 like Illinois v. Krull, 480 U.S. 340 (1987), did not apply because those cases
       involved unconstitutional statutes that authorized warrantless searches, whereas defendant’s
       case involved a criminal statute that was only found partially unconstitutional. The State also
       asserted that, even if the trial court found that Krull and Carrera applied, the court should
       nonetheless apply the good-faith exception set forth in United States v. Leon, 468 U.S. 897
       (1984). The State argued that the court should refuse to exclude evidence by the officers who
       reasonably relied on a then-valid statute when they arrested defendant. In his response,
       defendant reiterated that the police lacked probable cause to arrest him in light of Aguilar, as
       a criminal statute that is unconstitutional is void ab initio.
¶ 11       Following an April 2014 hearing, the trial court denied the State’s motion to reconsider.
       Thereafter, the State filed a notice of appeal and a certificate of substantial impairment from
       the trial court’s February 2014 and April 2014 orders pursuant to Illinois Supreme Court
       Rule 604(a)(1) (eff. Feb. 6, 2013).

¶ 12                                          II. ANALYSIS
¶ 13        On appeal, the State argues that the trial court erred by granting defendant’s motion to
       suppress evidence. The State maintains that Carrera is distinguishable and the court should
       have recognized a good-faith exception to the exclusionary rule, as the officer was operating
       under the law in effect at the time of defendant’s arrest and defendant’s fourth amendment
       rights were not violated. U.S. Const., amend. IV. Further, the State contends, the good-faith
       exception should be applied pursuant to section 114-12(b)(2)(ii) of the Code of Criminal
       Procedure of 1963 (Code) (725 ILCS 5/114-12(b)(2)(ii) (West 2012)). Defendant responds
       that the court properly granted his motion to suppress evidence, as it is well settled that a
       finding of unconstitutionality on any ground renders a statute void ab initio and the
       good-faith exception to the exclusionary rule may not be applied to statutes that are void ab
       initio.
¶ 14        We apply a two-part standard of review when reviewing a ruling on a motion to quash
       arrest and suppress evidence. People v. Almond, 2015 IL 113817, ¶ 55. We afford great
       deference to the trial court’s findings of fact and will reverse those findings only where they

           2
           In its motion, the State cited to the appellate decision in People v. Carrera, 321 Ill. App. 3d 582
       (2001).

                                                      -3-
       are against the manifest weight of the evidence. Id. However, we review de novo the court’s
       ultimate ruling on whether the evidence should be suppressed. Id.
¶ 15       Before turning to the parties’ arguments, we wish to set forth the pertinent United States
       Supreme Court and Illinois Supreme Court decisions governing this appeal.

¶ 16                      A. The Supreme Court’s Decisions in Leon and Krull
¶ 17       Both the fourth amendment of the United States Constitution and the Illinois Constitution
       of 1970 guarantee the right to be free from unreasonable searches and seizures. U.S. Const.,
       amend. IV; Ill. Const. 1970, art. I, § 6. Where evidence is obtained in violation of the fourth
       amendment, the exclusionary rule precludes the use of such evidence against the defendant in
       a criminal proceeding. United States v. Calandra, 414 U.S. 338, 347 (1974) (citing Weeks v.
       United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961)).
¶ 18       In Leon, the Supreme Court concluded that the exclusionary rule did not bar the use of
       evidence obtained by officers who acted in reasonable reliance on a search warrant issued by
       a detached and neutral magistrate that was ultimately found to be unsupported by probable
       cause. Leon, 468 U.S. at 900, 913. The Supreme Court explained the exclusionary rule was
       designed to deter police misbehavior and, further, it could discern no basis for believing that
       excluding evidence seized pursuant to a warrant would have a significant deterrent effect on
       the issuing judge or magistrate. Id. at 916. Moreover, the Supreme Court explained, where an
       officer’s conduct is objectively reasonable, “ ‘excluding the evidence will not further the
       ends of the exclusionary rule in any appreciable way; for it is painfully apparent that … the
       officer is acting as a reasonable officer would and should act in similar circumstances.
       Excluding the evidence can in no way affect his future conduct unless it is to make him less
       willing to do his duty.’ ” Id. at 919-20 (quoting Stone v. Powell, 428 U.S. 465, 539-40 (1976)
       (White, J., dissenting)). Our supreme court subsequently adopted the Leon good-faith
       exception in People v. Stewart, 104 Ill. 2d 463, 477 (1984).
¶ 19       Following Leon, the Supreme Court in Krull extended the good-faith exception to
       encompass the situation wherein an officer acts in objectively reasonable reliance on a statute
       authorizing warrantless administrative searches, which is ultimately found to violate the
       fourth amendment. Krull, 480 U.S. at 342, 346. The statute at issue in Krull required a person
       engaged in certain types of automotive business to obtain a license from the Illinois Secretary
       of State, and a licensee was required to permit state officials to inspect his records “ ‘at any
       reasonable time during the night or day’ ” and to allow officials to examine the premises of
       his business to determine the accuracy of his records. Id. at 342-43 (quoting Ill. Rev. Stat.
       1981, ch. 95½, ¶ 5-401(e)). Pursuant to the statute, an officer entered the respondents’
       automobile wrecking yard and discovered that three vehicles were stolen and the
       identification number on a fourth had been removed. Id. at 343. The respondents were
       charged with various criminal violations, and they filed a motion to suppress the evidence
       seized from the yard, noting a federal court had found the statute authorizing warrantless
       administrative searches of licensees unconstitutional. Id. at 344. The Supreme Court
       explained that applying “the exclusionary rule to suppress evidence obtained by an officer
       acting in objectively reasonable reliance on a statute would have as little deterrent effect on
       the officer’s actions as would the exclusion of evidence when an officer acts in objectively
       reasonable reliance on a warrant.” Id. at 349. Further, the Supreme Court reasoned, it had
       been given no basis for believing legislators were inclined to act in contravention of fourth

                                                  -4-
       amendment principles, nor had the respondents offered any reason to believe that applying
       the exclusionary rule would have a significant deterrent effect on legislators enacting
       unconstitutional statutes. Id. at 350-52.

¶ 20                      B. The Illinois Supreme Court’s Decision in Krueger
¶ 21        Our supreme court, however, subsequently declined to adopt the Krull good-faith
       exception, concluding the Illinois Constitution barred its application. People v. Krueger, 175
       Ill. 2d 60, 61 (1996). In Krueger, the supreme court considered a “no-knock” statute that
       allowed a judge to issue a warrant authorizing an officer to enter a person’s home without
       first knocking and announcing his office when an occupant of the building had previously
       possessed firearms within a certain period of time. Id. at 64 (quoting 725 ILCS 5/108-8(b)(2)
       (West 1994)). After concluding the statute violated the defendant’s constitutional rights to be
       free from unreasonable searches and seizures, the Krueger court turned to the State’s
       argument that the good-faith exception recognized in Krull should apply. Id. at 69-70. In
       reviewing the Krull decision, the supreme court cited extensive portions of Justice
       O’Connor’s dissent. Id. at 72. It noted that Justice O’Connor had persuasively distinguished
       Leon on two grounds. Id. First, Justice O’Connor stated that a “ ‘powerful historical basis’ ”
       existed “ ‘for the exclusion of evidence gathered pursuant to a search authorized by an
       unconstitutional statute.’ ” Id. (quoting Krull, 480 U.S. at 362 (O’Connor, J., dissenting,
       joined by Brennan, Marshall and Stevens, JJ.)). Such statutes were “ ‘the core concern of the
       Framers of the Fourth Amendment,’ ” and the exclusionary rule had also “regularly been
       applied to suppress evidence gathered under unconstitutional statutes.” Id. (quoting Krull,
       480 U.S. at 362-63 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.))
       Second, the supreme court noted, Justice O’Connor found the aforementioned history
       showed that legislators often pose a serious threat to fourth amendment values. Id. Justice
       O’Connor’s dissent also pointed out that applying the good-faith exception would provide “a
       ‘grace period’ for unconstitutional search and seizure legislation.” Id.
¶ 22        The Illinois Supreme Court thus departed from its tradition of applying the lockstep
       doctrine and following Supreme Court decisions in fourth amendment cases. Id. at 74. The
       Krueger court explained that Illinois’s exclusionary rule had “always been understood to bar
       evidence gathered under the authority of an unconstitutional statute [citations], so long as that
       statute purported to authorize an unconstitutional search or seizure (see Michigan v.
       DeFillippo, 443 U.S. 31 *** (1979) (recognizing a substantive-procedural distinction not at
       issue here; specifically holding that the fourth amendment exclusionary rule did not apply
       where an ordinance was held unconstitutional on vagueness grounds)).” Id. at 74-75. Thus,
       the supreme court found that adopting the good-faith exception in Krull “would drastically
       change this state’s constitutional law.” Id. at 75. Further, in balancing the legitimate aims of
       law enforcement against citizens’ rights to be free from unreasonable governmental intrusion,
       the supreme court concluded citizens’ rights prevailed. Id. The Krueger court stated that
       recognizing a good-faith exception to the state exclusionary rule would “provide a grace
       period for unconstitutional search and seizure legislation, during which time our citizens’
       prized constitutional rights can be violated with impunity.” Id.




                                                   -5-
¶ 23                       C. The Illinois Supreme Court’s Decision in Carrera
¶ 24        Subsequent to Krueger, the supreme court issued its decision in Carrera, in which it
       refused to apply the good-faith exception to the defendant’s case based on the void ab initio
       doctrine. Carrera, 203 Ill. 2d at 16. In Carrera, Chicago police officers arrested the
       defendant outside of Chicago pursuant to an extraterritorial jurisdiction arrest statute that was
       later declared unconstitutional and void ab initio for violating the single-subject rule. Id. at 3,
       8, 16. The defendant filed a motion to quash his arrest and suppress evidence, maintaining
       the officers lacked authority to arrest him outside of Chicago. Id. at 7. On appeal, the State
       argued, inter alia, that the good-faith exception to the exclusionary rule should apply, as the
       officers did not violate the defendant’s substantive constitutional rights when effectuating the
       extraterritorial arrest. Id. at 13. While acknowledging the State’s arguments, the Carrera
       court stated it was electing to resolve the case “on narrower grounds,” finding the void ab
       initio doctrine dictated the result it reached. Id. at 13-14. It noted that a statute that is
       unconstitutional is void ab initio and confers no right, imposes no duty, and offers no
       protection. Id. at 14. Instead, “[i]t is as though no such law had ever been passed.” Id. The
       Carrera court further stated that the void ab initio doctrine applied to both statutes deemed
       unconstitutional for violating substantive constitutional guarantees as well as statutes adopted
       in violation of the single-subject clause of the constitution. Id. at 14-15.
¶ 25        Our supreme court thus refused to apply the good-faith exception to the defendant’s case,
       concluding that to do so “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 Carrera court explained that giving effect to the
       historical fact that the amendment existed when the defendant was arrested “would
       effectively resurrect the amendment and provide a grace period *** during which our
       citizens would have been subject to extraterritorial arrests without proper authorization.” Id.
¶ 26        Justice Garman authored a dissent in which Justices Fitzgerald and Thomas joined. The
       dissent argued that the majority did not answer the narrow question posed by the State, i.e.,
       “whether the good-faith exception to the exclusionary rule applies when officers relied on an
       apparently valid statute when they made an arrest that, while unlawful, did not violate the
       individual’s state or federal constitutional rights.” Id. at 17 (Garman, J., dissenting, joined by
       Fitzgerald and Thomas, JJ.). According to the dissent, the majority obscured the distinction
       “between quashing an arrest because it was not authorized by a valid statute and applying the
       exclusionary rule to suppress evidence that was obtained in violation of a defendant’s right to
       be free from unreasonable search and seizure.” Id. The dissent agreed that the statute upon
       which the officers relied was void ab initio and explained that the effect of finding the statute
       unconstitutional on single-subject grounds was to return the law to its status quo ante. Id. at
       18. Thus, to resolve the State’s question, the dissent stated that the majority should have
       applied the earlier version of the statute and common law regarding extraterritorial arrests.
       Id. The dissent noted that the officers’ actions in arresting the defendant violated the
       preexisting statute. Id. at 23. However, “the question of whether a search or arrest is legal is
       entirely separate from the question of whether evidence derived from that search or arrest
       should be excluded.” Id. at 22. According to the dissent, the exclusionary rule applied (1)
       when suppressing the evidence would further its purpose of deterring police misconduct or
       (2) where giving effect to search and seizure legislation that violated the fourth amendment
       or state constitution would permit citizens’ constitutional rights to be violated. Id. The dissent


                                                     -6-
       concluded that although the seizure of the defendant was unlawful, the exclusionary rule did
       not apply because the seizure did not violate the defendant’s state or federal constitutional
       rights, nor did the officers willfully violate the governing statute. Id. at 24.
¶ 27       Further, the dissent opined that even if the exclusionary rule applied, the evidence should
       have been admitted based on the officers’ good-faith reliance on the then-applicable statute.
       Id. at 25. The dissent explained as follows.
               “Our concern in Krueger was with a statute authorizing police conduct that was, in
               itself, unconstitutional. This case does not pose the same threat to liberty as the statute
               at issue in Krueger, which purported to authorize unconstitutional no-knock entries
               by the police when executing a search warrant. Recognizing a good-faith exception
               for action taken by the police pursuant to a statute authorizing certain extraterritorial
               arrests, but enacted in violation of the single subject rule, would not subject the
               citizens of Illinois to ‘a grace period *** during which time *** constitutional rights
               can be violated with impunity.’ ” Id. at 25-26 (quoting Krueger, 175 Ill. 2d at 75-76).

¶ 28                  D. Whether the Evidence Should Be Suppressed in This Case
¶ 29       Having reviewed the aforementioned decisions, we conclude the trial court properly
       suppressed the evidence in this case. As previously detailed, our supreme court in Carrera
       stated that a facially invalid statute is void ab initio. Id. at 14 (majority opinion). In other
       words, “[i]t is as though no such law had ever been passed.” Id. The Carrera court further
       stated that the void ab initio doctrine applies both to statutes that “are unconstitutional
       because they violate substantive constitutional guarantees” and statutes that are
       unconstitutional because they violate the single-subject clause. Id. at 15. The Carrera court
       then went on to state that “to apply 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.
¶ 30       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. The supreme court in Aguilar
       found the portion of the AUUW statute pursuant to which defendant was arrested
       unconstitutional on its face. Thus, that statute was void ab initio. See id. at 14. As the
       Carrera court explained, applying the good-faith exception to defendant’s case would “run
       counter to *** void ab initio jurisprudence.” Id. at 16. 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.” Id. The
       same concern with a “grace period” is implicated on the facts of our case, where individuals
       would have continued to be subject to arrests for violating the portion of the AUUW statute
       that was invalidated in Aguilar.
¶ 31       The State contends that Carrera is distinguishable. It maintains that the defendants in
       Carrera, Krueger, and Krull were each subject to fourth amendment violations based on
       statutes that gave police unconstitutional search and seizure authority. It is true that the
       statutes at issue in Carrera, Krueger, and Krull were all procedural statutes providing
       expanded authority to law enforcement officials regarding either the search or arrest of
       individuals, whereas the AUUW statute was a substantive statute. However, the supreme
       court in Carrera drew no distinction between procedural and substantive statutes. To the

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       contrary, the Carrera court used expansive language, stating that the void ab initio doctrine
       applied both to legislative acts that were found unconstitutional for violating substantive
       constitutional guarantees as well as those adopted in violation of the single-subject clause. Id.
       at 15. The Carrera court further stated that applying “the good-faith exception would run
       counter to our *** 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.
¶ 32        We acknowledge, as the State points out, that the Code allows for the admission of
       evidence obtained pursuant to an arrest for a substantive statute that is later invalidated.
       Specifically, section 114-12(b)(2)(ii) of the Code provides that evidence shall not be
       suppressed where a court determines the evidence was seized by an officer acting in good
       faith, and “good faith” is defined, in relevant part, as existing when an officer “obtains
       evidence *** pursuant to a warrantless search incident to an arrest for violation of a statute or
       local ordinance which is later declared unconstitutional or otherwise invalidated.” 725 ILCS
       5/114-12(b)(2)(ii) (West 2012). Our supreme court has stated that section 114-12(b)(2) is a
       codification of Leon. People v. Carlson, 185 Ill. 2d 546, 560 (1999). In Carlson, the supreme
       court applied the good-faith exception to the use of an invalid anticipatory search warrant. Id.
       at 561. The Carlson court cited to section 114-12(b)(2)(i) of the Code, which defines “good
       faith” as existing when an officer obtains evidence pursuant to a search or arrest warrant
       from a neutral and detached judge, which the officer reasonably believed to be valid. Id. at
       560 (quoting 725 ILCS 5/114-12(b)(2)(i) (West 1996)).
¶ 33        The Carrera court did not mention section 114-12(b)(2)(ii) of the Code in its opinion,
       and its broad language regarding the void ab initio doctrine made no exception for evidence
       obtained in a search incident to an arrest for a statute later found unconstitutional. We further
       note that the statute was not mentioned in Krueger. While it can be argued that section
       114-12(b)(2)(ii) has been invalidated by Krueger and Carrera, that has not explicitly been
       done. We do not reach that question here as we are bound to follow the majority opinion in
       Carrera. We leave it to further jurisprudence as to how the conflict between the void ab
       initio doctrine and the statute in question should ultimately be resolved.
¶ 34        The State also relies on DeFillippo, positing that it is “especially relevant” as it was cited
       in Krueger, which was in turn cited by the supreme court recently in People v. LeFlore, 2015
       IL 116799. In DeFillippo, the Supreme Court concluded that suppression was not warranted
       where a defendant was arrested for violating an ordinance that was later found
       unconstitutionally vague on its face. DeFillippo, 443 U.S. at 35, 37-38. The Supreme Court
       in that case concluded that probable cause existed for the defendant’s arrest, rejecting the
       idea that the officer should have been required to anticipate that a court would subsequently
       find the ordinance unconstitutional. Id. at 37-38. The DeFillippo Court explained that
       “[p]olice are charged to enforce laws until and unless they are declared unconstitutional,” and
       “[s]ociety 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. The
       DeFillippo Court also distinguished prior cases in which it had held the exclusionary rule
       required suppression of evidence obtained in searches that were carried out in reliance on
       statutes purportedly authorizing those searches without probable cause or a warrant. Id. at 39.
       The Court explained that those statutes, “by their own terms, authorized searches under
       circumstances which did not satisfy the traditional warrant and probable-cause requirements
       of the Fourth Amendment.” Id. By contrast, the Court explained, the ordinance in


                                                    -8-
       respondent’s case “did not directly authorize the arrest or search.” Id. Instead, the officer had
       probable cause to believe the respondent was committing an offense in his presence, the
       State’s general arrest statute authorized the respondent’s arrest independent of the ordinance,
       and the subsequent search “was valid because it was incidental to that arrest.” Id. at 40.
¶ 35       We note that the Seventh Circuit Court of Appeals also recently concluded that an officer
       had probable cause to search the car of a defendant, who was found guilty of possessing a
       firearm as a felon, even though Chicago’s handgun ban and Illinois’s ban against the
       possession of guns outside the home were subsequently invalidated. United States v. Charles,
       801 F.3d 855, 858, 861 (7th Cir. 2015). There, a witness called 911 to report that she saw a
       gun in the defendant’s waistband, and a dispatcher broadcasted that information over the
       police radio. Id. at 858. The Seventh Circuit noted that at the time, Chicago had a
       comprehensive handgun ban and Illinois prohibited carrying concealed guns in public unless
       they were unloaded and enclosed in a container. Id. at 860-61. The Charles court concluded
       that the police had probable cause to believe that the defendant had violated the Chicago
       ordinance and Illinois statute and that evidence of those crimes could be found in his car. Id.
       at 861. The Seventh Circuit explained that although Chicago’s ban and Illinois’s
       concealed-carry law were both subsequently invalidated, “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 (1979). Although [the defendant] 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.
¶ 36       We recognize that both DeFillippo and Charles contain facts similar to our case.
       Nonetheless, we are bound by the supreme court’s decision in Carrera and the void ab initio
       doctrine. As previously detailed, the supreme court explicitly stated that a statute that is
       unconstitutional on its face is void ab initio and that applying the good-faith exception
       “would run counter to our *** void ab initio jurisprudence–specifically, that once a statute is
       declared facially unconstitutional, it is as if it had never been enacted.” Carrera, 203 Ill. 2d at
       16. As a result of the Illinois void ab initio doctrine, we are therefore 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.
¶ 37       The State also relies on LeFlore, claiming that although the supreme court in that case
       considered the good-faith exception in the context of judicial precedent, its discussion of the
       exception is nonetheless instructive in our case. The State quotes various portions of the
       LeFlore decision, such as its reiteration that the exclusionary rule has been restricted to those
       “unusual cases” in which “it can achieve its sole objective: to deter future fourth amendment
       violations.” (Internal quotation marks omitted.) LeFlore, 2015 IL 116799, ¶ 22. However, the
       fact that LeFlore involved invalidated judicial precedent and not an invalidated statute is a
       crucial distinction, as the Carrera decision makes clear that statutes that are unconstitutional
       on their face are void ab initio and that the good-faith doctrine cannot be applied to statutes
       that are void ab initio. See Carrera, 203 Ill. 2d at 15-16. Accordingly, LeFlore does not
       support the State’s position that reversal is warranted in this case.




                                                    -9-
¶ 38       In sum, we conclude the trial court properly granted defendant’s motion to quash his
       arrest and suppress evidence.

¶ 39                                      III. CONCLUSION
¶ 40      For the reasons stated, we affirm the trial court’s judgment.

¶ 41      Affirmed.




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