                                                                                FIFTH DIVISION
                                                                             DECEMBER 18, 2009
No. 1-08-3531




U.S. RESIDENTIAL MANAGEMENT                           )       Appeal from the
AND DEVELOPMENT, LLC, as Property                     )       Circuit Court of
Manager for the Chicago Housing Authority,            )       Cook County.
                                                      )
                Plaintiff-Appellant,                  )
                                                      )
       v.                                             )       No. 07 M1 225378
                                                      )
MICHAEL HEAD,                                         )
                                                      )
                Defendant-Appellee.                   )       Honorable
                                                      )       Sheldon Garber,
                                                      )       Judge Presiding.



       JUSTICE TULLY delivered the opinion of the court:

       Plaintiff U.S. Residential Management & Development, LLC, appeals from an order

granting defendant Michael Head’s combined motion to suppress and motion to dismiss in a

forcible entry and detainer action. On appeal, plaintiff asserts that the circuit court improperly

granted defendant’s motion to suppress the evidence of defendant’s drug-related criminal

conduct and motion to dismiss on the basis that the exclusionary rule should not apply to

plaintiff’s possessory action. For the reasons that follow, we reverse the judgment of the circuit

court and remand for further proceedings.

                                            Background

       On October 15, 2006, defendant was arrested in his rental residence at the Lathrop Homes
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public housing development for possessing cannabis in violation of section 550/4(d) of the

Cannabis Control Act. 720 ILCS 550/4(d) (West 2006). Plaintiff managed the premises on

behalf of the Chicago Housing Authority (CHA). Defendant’s lease with plaintiff required him

to refrain from engaging in any drug-related criminal activity on or off CHA premises and to

keep persons under his control from engaging in any criminal activity. The lease would be

terminated if there was any drug-related criminal activity on or off the premises by the resident,

any family member of the household, or a guest.

       CHA and the Chicago police department (CPD) were parties to an intergovernmental

agreement. Pursuant to the agreement, CPD provided supplemental police services for CHA

properties, including: dedicated watches, increased foot patrols, customized policing strategies,

and the monitoring and prevention of gang and other illegal activities. In addition, CPD provided

statistics and relevant data, including reports of the activities of the assigned officers to CHA.

       CPD and CHA also shared information through established procedures about public

housing residents who were arrested for committing drug-related crimes. Generally, CPD

provided case reports to CHA regarding arrests on CHA properties. CHA would then complete a

notice of arrest and send it to the property manager, in this case plaintiff. Plaintiff could then

serve the tenant with written notice of CHA’s decision to terminate the lease agreement. In

exchange for these services, CHA paid CPD up to $6 million per year.

       On March 9, 2007, the State dropped the criminal charges against defendant. On August

14, 2007, CHA sent plaintiff notice of defendant’s arrest. Ten days later, on August 24, 2007,

plaintiff sent defendant notice of its decision to terminate the lease agreement. On September 7,


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2007, plaintiff filed its complaint against defendant for possession of the premises pursuant to

section 9–118 of the Forcible Entry and Detainer Act (735 ILCS 5/9–118 (West 2006)) (the Act).

On June 25, 2008, defendant filed his combined motion to suppress the evidence of his drug-

related criminal conduct under the exclusionary rule and motion to dismiss.

       On December 8, 2008, the circuit court held that the evidence of defendant’s crime was

seized by the arresting officers in violation of the fourth amendment’s prohibition against

unreasonable searches and seizures. Plaintiff does not dispute this finding on appeal. In support

of its holding, the circuit court reasoned that the arresting officers conducted their search without

a warrant, lacked probable cause to search the premises because they were relying on information

provided by an informant whom they had never before seen and whose gender they could not

even remember, and that even if the officers had probable cause (which they did not), no exigent

circumstances justified the warrantless search.

       Next, the circuit court found that the exclusionary rule barred the admission of the

illegally seized evidence. The circuit court held that the proceeding was quasi-criminal because

defendant was facing eviction for unlawful drug-related activity, plaintiff filed suit under section

9–118 of the Act (a statutory provision that applies only to criminal activity), and the proposed

sanction was harsh. Moreover, the circuit court reasoned that even if the forcible entry and

detainer action was a purely civil proceeding, the exclusionary rule may be extended to such

proceedings when its application would deter the police from committing future violations of the

fourth amendment. The circuit court reasoned that CPD and CHA followed an established

procedure for sharing information about public housing residents who were arrested for drug-


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related crimes, and that the two agencies were parties to a formal written contract that required

CPD to provide CHA with supplemental policing services designed to combat the very activity

for which defendant was arrested. The circuit court found that given the relationship between

CPD and CHA, suppressing the illegally seized evidence in this case would deter the police from

committing future fourth amendment violations. As such, the circuit court granted defendant’s

motion to suppress and dismissed the action with prejudice because plaintiff could not establish

defendant violated his lease agreement without the illegally seized evidence. This appeal was

timely filed.

       On appeal, plaintiff contends that the circuit court improperly granted defendant’s motion

to suppress evidence, arguing that the exclusionary rule does not apply to plaintiff’s forcible

entry and detainer action. Plaintiff asserts that because this action is a purely civil proceeding,

and not a criminal or quasi-criminal proceeding, the circuit court improperly applied the

exclusionary rule. Plaintiff also asserts that the societal costs of excluding evidence of

defendant’s drug-related criminal conduct in this action greatly outweigh any minimal deterrent

benefit upon the police.

                                              Analysis

       In reviewing an appeal from a circuit court's ruling on a motion to suppress, we apply a

two-part standard of review. People v. Salinas, 383 Ill. App. 3d 481, 490 (2008). First, the

circuit court's factual findings are reviewed for clear error and will only be reversed if they are

against the manifest weight of the evidence. Salinas, 383 Ill. App. 3d at 490. Second, the circuit

court's ultimate decision as to whether suppression is warranted is reviewed de novo. Salinas,


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383 Ill. App. 3d at 490. In this case, neither party challenges any of the circuit court's factual

determinations. Accordingly, the sole issue before this court is plaintiff’s legal challenge to the

circuit court’s application of the exclusionary rule, which we review de novo.

       The first issue on appeal is whether actions brought pursuant to the Forcible Entry and

Detainer Act constitute quasi-criminal proceedings. The Act “sets forth a mechanism for the

peaceful adjudication of possession rights in the trial court.” Circle Management, LLC v.

Olivier, 378 Ill. App. 3d 601, 608 (2007). “ ‘The distinct purpose of the forcible entry and

detainer proceeding is to determine only who should be in rightful possession.’ ” Circle

Management, LLC, 378 Ill. App. 3d at 609, quoting Miller v. Daley, 131 Ill. App. 3d 959, 961

(1985). In other words, “[a] forcible entry and detainer action is a limited proceeding, focusing

on the central issue of possession.” American National Bank v. Powell, 293 Ill. App. 3d 1033,

1044 (1997). “The only questions that are to be answered in such a proceeding concern which

party is entitled to immediate possession and whether a defense that is germane to the distinctive

purpose of the action defeats plaintiff's asserted right to possession.” Subway Restaurants, Inc. v.

Riggs, 297 Ill. App. 3d 284, 287 (1998). Our supreme court recognized that a forcible entry and

detainer action “is a civil proceeding to obtain restitution of premises of which the plaintiff is

unjustly deprived.” West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631, 637 (1934).

       Under section 9–118 of the Act, the housing authority may initiate emergency housing

eviction proceedings against a tenant for possession of the premises if “there is direct evidence

of *** unlawful[ly] possessing *** cannabis *** within or upon the premises by or with the

knowledge and consent of, or in concert with the person or persons named in the complaint.”


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735 ILCS 5/9–118(b)(2)(A) (West 2006). Plaintiff’s complaint did not request a penalty, a

forfeiture of defendant’s personalty, or a fine from defendant, but instead only sought to invoke

its right under the Act to regain possession of the premises. As such, because the Act’s purpose

is to settle disputes about possession of real property – and not to punish defendant – we hold

that forcible entry and detainer actions are not quasi-criminal in nature.

       In finding that plaintiff’s action was quasi-criminal, the circuit court reasoned that

defendant was facing eviction for unlawful drug-related activity, noting that the statute only

applied to criminal activity, and that the proposed sanction was harsh. While the circuit court did

not indicate its basis for finding this action to be quasi-criminal, defendant suggests that One

1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 14 L. Ed. 2d 170, 85 S. Ct. 1246 (1965),

supports the trial court’s finding. In One 1958 Plymouth Sedan, the Court reasoned that the

forfeiture action was quasi-criminal because its object was “to penalize [the defendant] for the

commission of an offense against the law”and because the threatened penalty was harsh. One

1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700-01, 14 L. Ed. 2d 170, 175, 85 S. Ct.

1246, 1251 (1965).

       The present case is distinguishable from One 1958 Plymouth Sedan. Here, the focus of

the Act is not to punish defendant, but rather to set forth a mechanism for the peaceful

adjudication of possession rights in the circuit court. In addition, while defendant may be

subjected to a harsh consequence – losing his residence – this consequence does not transform

this civil proceeding into a quasi-criminal proceeding. When the Supreme Court denied

extending the exclusionary rule in Immigration and Naturalization Service v. Lopez-Mendoza,


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468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984), and in Pennsylvania Board of

Probation & Parole v. Scott, 524 U.S. 357, 141 L. Ed. 2d 344, 118 S. Ct. 2014 (1998), the

possible sanctions were deportation and incarceration, respectively. These sanctions, while

harsh, did not transform the civil proceedings into quasi-criminal proceedings. These sanctions

are also equally, if not more, harsh than losing one’s residence.

       For the foregoing reasons, we reverse the circuit court’s finding that this proceeding is

quasi-criminal and find that actions brought pursuant to the Act are civil in nature.

       The next issue is whether the exclusionary rule applies to suppress illegally seized

evidence in a civil forcible entry and detainer action. Under the exclusionary rule, “evidence

obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against

the victim of the illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347, 38 L.

Ed. 2d 561, 571, 94 S. Ct. 613, 619 (1974). “[T]he rule is a judicially created remedy designed

to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a

personal constitutional right of the party aggrieved.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at

571, 94 S. Ct. at 620. The Supreme Court has explained that “[d]espite its broad deterrent

purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized

evidence in all proceedings or against all persons.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at

571, 94 S. Ct. at 620. Instead, application of the exclusionary rule has been restricted to those

areas where the remedial objectives of deterring unlawful police conduct are “most efficaciously

served.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620.

       Accordingly, the Supreme Court developed a balancing test to measure the appropriate


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use of the exclusionary rule. McCullough v. Knight, 293 Ill. App. 3d 591, 596 (1997). Under

this test, we must balance the likely benefits of excluding unlawfully seized evidence against the

likely costs. Lopez-Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787, 104 S. Ct. at 3484. On the

benefit side of the analysis is the deterrence of possible future unlawful police conduct. Lopez-

Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787, 104 S. Ct. at 3484. “On the cost side there is

the loss of often probative evidence and all of the secondary costs that flow from the less

accurate or more cumbersome adjudication that therefore occurs.” Lopez-Mendoza, 468 U.S. at

1041, 82 L. Ed. 2d at 787, 104 S. Ct. at 3485.

       Our research has not disclosed any Supreme Court or Illinois cases which have

considered the application of the exclusionary rule in forcible entry and detainer actions. When

the Supreme Court has applied the exclusionary rule balancing test, it has refused to extend the

rule to various civil proceedings. In Calandra, 414 U.S 338, 38 L. Ed. 2d 561, 94 S. Ct. 613, the

Court forbade a witness from invoking the exclusionary rule in a grand jury proceeding. In

United States v. Janis, 428 U.S. 433, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976), the Court refused

to apply the exclusionary rule to suppress evidence seized by the criminal law enforcement

officers of one sovereign (state police) in a civil proceeding of another sovereign (federal tax

assessment proceeding). In Lopez-Mendoza, 468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479,

the Court refused to extend the exclusionary rule to civil deportation hearings. In Pennsylvania

Board of Probation, 524 U.S. 357, 141 L. Ed. 2d 344, 118 S. Ct. 2014, the Court held that the

exclusionary rule did not apply in parole revocation hearings.

       Illinois courts have applied the exclusionary rule balancing test and have similarly refused


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to extend the rule in various civil proceedings. For example, in People v. Dowery, 62 Ill. 2d 200

(1975), the court refused to extend the exclusionary rule to probation revocation proceedings. In

Grames v. Illinois State Police, 254 Ill. App. 3d 191 (1993), the exclusionary rule did not extend

to police department administrative discharge proceedings. In Fedanzo v. City of Chicago, 333

Ill. App. 3d 339 (2002), the court held the exclusionary rule did not apply in employee

termination proceedings. In McCullough, 293 Ill. App. 3d 591, the court refused to suppress

evidence of an illegally seized handgun at the plaintiff’s vehicle impoundment proceeding before

the department of revenue. The McCullough court examined the costs of applying the

exclusionary rule to a vehicle impoundment proceeding and determined that “the department of

revenue would be unable to consider valuable and relevant evidence that would impede the truth-

finding function of the hearing officer,” thus interfering with the public policy of the

administrative proceeding: eliminating “unlawful weapons from the streets of the city.”

McCullough, 293 Ill. App. 3d at 597-98. Relying upon Janis, the McCullough court held that

“police officers were sufficiently ‘punished’ by exclusion of evidence in criminal prosecutions

because the exclusion frustrates the criminal enforcement process, which was the duty and

concern of police officers to ensure.” McCullough, 293 Ill. App. 3d at 597-98, citing Janis, 428

U.S. at 448, 49 L. Ed. 2d at 1057, 96 S. Ct. at 3029.

       Balancing the factors in the present case, we conclude that the exclusionary rule should

not be extended to encompass the present situation. The cost to CHA and the truth-finding

process outweigh the benefit which would result from the application of the exclusionary rule in

forcible entry and detainer actions. By applying the exclusionary rule in the present case, CHA


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would be unable to consider valuable and relevant evidence of potential criminal activity that

would impede the truth-finding function of the circuit court. To extend the rule and suppress

evidence of criminal activity would hinder CHA’s ability to enforce lease agreements designed to

promote safety and deter illegal conduct in public housing communities. This rationale is

consistent with the concerns of the Illinois General Assembly in implementing the Act, which

was to protect persons at public housing premises from “imminent danger and peril to [their]

lives, safety, health and mental and physical well being.” Pub. Act 87–0933, eff. August 27,

1992 (adding 735 ILCS 5/9–118). The circuit court failed to incorporate this half of the analysis

under the exclusionary rule balancing test.

       While the circuit court focused on the deterrent value of suppressing the illegally seized

evidence, the costs of excluding relevant and probative evidence outweigh any additional

marginal deterrence provided by extending the exclusionary rule. Here, as in McCullough, police

officers are sufficiently punished by the exclusion of evidence in criminal prosecutions. While

CPD and CHA are parties to an agreement that requires CPD to provide CHA with policing

services, the record does not indicate CPD is, or has been, improperly motivated to illegally seize

evidence to benefit civil proceedings. Defendant suggests that if illegally seized evidence may be

introduced in eviction proceedings, “nothing will discourage the police from conducting

unlawful searches.” We are not persuaded by this type of speculative argument. In the event that

such improper behavior or police harassment is shown, “the judiciary may impose appropriate

sanctions to deter misconduct.” Dowery, 62 Ill. 2d at 207.

       Defendant cites cases from other jurisdictions for the proposition that the evidence should


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be excluded: Tejada v. Christian, 71 A.D.2d 527, 422 N.Y.S.2d 957 (1979), Boston Housing

Authority v. Guirola, 410 Mass. 820, 575 N.E.2d 1100 (1991), Youssef v. United Management

Co., 683 A.2d 152 (D.C. App. 1996), Housing Authority v. Dawkins, 239 Conn. 793, 686 A.2d

994 (1997), and Tirado v. Commissioner of Internal Revenue, 689 F.2d 307 (2d Cir. 1982), cert.

denied, 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256 (1983). Initially, we note that the

findings of the courts of other jurisdictions are not binding here. People v. Sullivan, 366 Ill. App.

3d 770, 781 (2006). Additionally, we do not find it necessary to turn to another state for

guidance on the issue. Nonetheless, we note that of the five cases cited by defendant from other

jurisdictions, only one of the courts found in favor of applying the exclusionary rule, Tejada, 71

A.D.2d 527, 422 N.Y.S.2d 957. However, the Tejada court did not apply the exclusionary rule

balancing test, and instead, after only a brief discussion of the deterrent effect of excluding the

evidence, determined that it “ would necessarily be obliged” and “required” to suppress the

illegally obtained evidence. Tejada, 71 A.D.2d at 530, 422 N.Y.S.2d at 959-60. This type of

blanket assertion contradicts the long standing philosophy that the “exclusionary rule has never

been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all

persons.” Calandra, 414 U.S at 348, 38 L. Ed. 2d at 571, 94 S. Ct. at 620.

       Lastly, we are not persuaded that article I, section 6, of the Illinois Constitution of 1970

requires an independent analysis pertaining to the applicability of the exclusionary rule in

forcible entry and detainer actions. While we are free to prescribe a broader remedy under article

I, section 6, than would be required under the fourth amendment (People v. Caballes, 221 Ill.2d

282, 305-06 (2006)), we see no reason to do so in the present case. As explained above, Illinois


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courts considering the applicability of the exclusionary rule in civil proceedings have routinely

applied the balancing test set out by the Supreme Court. We see no reason to stray from this

practice of balancing the likely benefits of excluding unlawfully seized evidence against the

likely costs under either the federal or state constitution.

        For the foregoing reasons, we reverse the circuit court’s dismissal of plaintiff’s forcible

entry and detainer action and remand the cause for further proceedings.

        Reversed and remanded.

        TOOMIN, P.J., and HOWSE, J. Concur.




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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT




            U.S. RESIDENTIAL MANAGEMENT &
            DEVELOPMENT, LLC as Property Manager for
            CHICAGO HOUSING AUTHORITY ,


                           Plaintiff-Appellant,

                                                    v.

            MICHAEL HEAD,

                              Defendant-Appellee.



                                                  No. 1-08-3531

                                          Appellate Court of Illinois
                                          First District, Fifth Division


            JUSTICE TULLY delivered the opinion of the court:

            TOOMIN, P.J., and, HOWSE, J., concur.


                               Appeal from the Circuit Court of Cook County

                                      HONORABLE SHELDON GARBER


            Richard W. Christoff of Sanford Kahn, LTD., 180 North LaSalle Street, Suite 2025, of
            Chicago, Illinois, for Plaintiff-Appellant.

            Lawrence D. Wood, Miriam Hallbauer, Carolyn Norton of Legal Assistance Foundation
            of Metropolitan Chicago, 1279 N. Milwaukee Avenue, Suite 407, of Chicago, Illinois for
            Defendant-Appellee.




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