People v. Holmes

2017 IL 120407

90 N.E.3d 412

The PEOPLE of the State of Illinois, Appellant,

v.David HOLMES, Appellee.

Docket No. 120407

Supreme Court of Illinois.

Opinion filed July 20, 2017.

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, 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.

JUSTICE GARMAN delivered the judgment of the court, with 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, 377 Ill.Dec. 405, 2 N.E.3d 321. 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, 398 Ill.Dec. 895, 45 N.E.3d 326. 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. 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, 270 Ill.Dec. 440, 783 N.E.2d 15 (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, 398 Ill.Dec. 895, 45 N.E.3d 326 (quoting People v. Carrera , 203 Ill. 2d 1, 14, 16, 270 Ill.Dec. 440, 783 N.E.2d 15 (2002) ).

¶ 7 Referencing Michigan v. DeFillippo , 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (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, 398 Ill.Dec. 895, 45 N.E.3d 326.

¶ 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, 392 Ill.Dec. 227, 32 N.E.3d 535. 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 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, 406 Ill.Dec. 470, 61 N.E.3d 74 (quoting Perlstein v. Wolk , 218 Ill. 2d 448, 455, 300 Ill.Dec. 480, 844 N.E.2d 923 (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, 142 Ill.Dec. 767, 553 N.E.2d 281 (1990) (quoting People v. Schraeberg , 347 Ill. 392, 394, 179 N.E. 829 (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, 406 Ill.Dec. 470, 61 N.E.3d 74. 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...