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No. 1--00--0239

JUSTICE BURKE delivered the opinion of the court:

Following a stipulated bench trial, defendant Rudolfo Carrerawas convicted of possession of a controlled substance with intent to deliver andsentenced by the circuit court to 15 years' imprisonment. On appeal, defendantcontends that the trial court erred in denying his second motion to quash arrestand suppress evidence because the evidence obtained at the time of his arrestwas obtained in violation of his fourth amendment rights in that the Chicagopolice officers did not have official authority to arrest him in Franklin Park,Illinois, and the officers did not make a valid citizen's arrest. Defendant alsocontends that the good faith exception to the exclusionary rule, requiringsuppression of evidence improperly seized, did not apply to the actions of theChicago police officers who arrested him in Franklin Park pursuant to a statutethat was later declared unconstitutional. For the reasons set forth below, wereverse and remand for further proceedings.

On August 26, 1997, Chicago police officers arresteddefendant outside of his house in Franklin Park. Defendant subsequently wasindicted by a grand jury on three counts of possession of a controlled substance(cocaine) with intent to deliver. Following the indictment, defendant filed amotion to quash arrest and suppress evidence, arguing that he was arrested byChicago police officers without probable cause and that he had not freelyconsented to searches following his arrest. On July 9, 1998, an evidentiaryhearing was held during which several witnesses testified. Thereafter, the trialcourt denied the motion.

Defendant filed a second motion to quash arrest and suppressevidence, arguing that the Chicago police officers had exercised police poweroutside of their jurisdiction.^*  Both sides submitted a supportingmemorandum, but did not submit further evidence and relied on the testimony fromthe first suppression hearing as indicated below.

Defendant testified that on August 26, 1997, after he hadgone to a grocery store in the morning, he drove to a storage facility, enteredthe facility and took out a bag, and returned to his car carrying the bag. Hethen drove home, parked his car in front of his house, exited the car, and movedtoward the trunk. After defendant had opened the trunk, a police officerapproached him and told him to place his hands on his car. The officer then tookthe bag from the trunk and handcuffed defendant. In response to an inquiry byone of the officers, defendant stated that his car was parked in front of hishouse.

Defendant further testified that the officers took him to thefront door of his house, asked him for the key, and entered the house. Theofficers gathered defendant's wife and children into the living room withdefendant, and then they took him to the basement where he showed them thelocation of a scale. The officers told him to sign some papers, which he signedwithout reading. The officers then began searching the house. Following thesearch, the officers took him to jail. During cross-examination, defendantadmitted that he did not tell the officers that he could not read the papersthat he had signed.

Defendant's wife, Rosa Carrera, testified that atapproximately 12:30 p.m., when defendant returned home, she saw four policeofficers with him. The officers asked her to gather the children into the livingroom, which she did. Thereafter, the officers asked her husband what otherthings he had in the house, and he replied that he had a scale in the basement.The officers took her husband to the basement and then returned and begansearching the house.

Joseph DiGiacomo testified that on August 26, 1997, he was adetective employed by the Chicago police department. An informant gave himinformation that a Hispanic male named Rudolfo, residing at 3113 North Emersonin Franklin Park, Illinois, dealt drugs from his house and drove a gray MercuryMarquis. On August 26, at 11 a.m., DiGiacomo, Sergeant DeAntonio and four otherChicago police officers, each in separate vehicles, conducted surveillancearound defendant's house in Franklin Park. DiGiacomo was not wearing a policeuniform, but he did have a gun, a badge, and binoculars. DiGiacomo admitted thatthe officers did not obtain a warrant prior to conducting the surveillance.

DiGiacomo further testified that at 12:30 p.m., he sawdefendant leave his residence and enter a vehicle parked in front of the house,and drive away. The officers followed defendant to a storage facility inSchiller Park where defendant entered the facility. The officers were able tocommunicate by using walkie-talkies and they had binoculars. Officer Horton, oneof the Chicago police officers participating in the surveillance, signaled thathe saw defendant exit the storage facility with a bag which defendant placed inthe trunk of his vehicle.

DiGiacomo further stated that the officers then followeddefendant back to his residence in Franklin Park. The officers had not observeddefendant commit any crimes up to this point. As defendant was removing the bagfrom the trunk of his car, DiGiacomo drove up next to him, got out of his car,and informed defendant that he was a police officer. DiGiacomo also stated thathe had not received any information regarding the involvement of a storagelocker. Acting on a "hunch," DiGiacomo asked defendant what was in thebag, defendant replied, "Drug," and defendant handed the bag to him.The other police officers "converged" upon defendant, they discoveredthat the bag contained cocaine, and DiGiacomo placed defendant under arrest.DiGiacomo further stated that after defendant signed consent forms authorizingthe search of his house and the storage facility, defendant was taken inside hishouse, and a search was conducted of the house. The officers proceeded to thestorage facility in Schiller Park, while defendant remained in his house, andthey found cocaine in the storage locker. The officers then notified theSchiller Park police, who later arrived at the storage facility.

DiGiacomo and the other officers returned to defendant'shouse to transport him to a Chicago police station. Franklin Park police arrivedat the house before the Chicago police officers left with defendant. Oncross-examination, DiGiacomo stated that as defendant signed the documentsauthorizing the searches, defendant did not tell him that he could notunderstand the documents or that he could not read them without his glasses.

The State moved for a directed finding on defendant's motionto quash the arrest and suppress evidence, which the trial court denied. TheState then called Chicago police officer Ricardo Herrera as a witness. Herreratestified that he was able to converse with defendant in Spanish and that herecited defendant's Miranda rights to him. Defendant indicated that hewanted to get off the street and go inside his home, defendant provided keys toenter the house, and the officers entered the house with defendant. Herrarafurther stated that defendant's wife and three children were present in thehome. Herrera also stated that he presented defendant forms written in Spanishauthorizing searches of his home and the storage locker which defendant signed.Herrera remained with defendant and his family while the other officers searchedthe house. The officers found more cocaine in the garage.

Thereafter, the trial court denied defendant's motion,finding that while the officers did not make a valid citizen's arrest, theinformation that the officers had was sufficient, pursuant to a good faithexception to the fourth amendment exclusionary rule, to sustain the encounterthat occurred between Officer DiGiacomo and defendant at his car. The trialcourt also found that defendant voluntarily stated that he had drugs in hispossession and handed them to the officer as he was approached, defendantwillingly entered the premises to remove the scene from the street, anddefendant subsequently signed consent forms to search the premises. Defendantlater waived his right to a jury trial, and the trial court conducted astipulated bench trial on January 12, 2000. The stipulated testimony wasconsistent with the testimony given by Officer DiGiacomo and the other witnessesat the first suppression hearing. The stipulated testimony further indicatedthat after defendant executed signed consent forms to search his residence inFranklin Park, his garage, and a storage locker in Schiller Park, the officersfound a triple beam scale, two 16-ounce jars of manitol used to cut cocaine,$15,000 in defendant's basement and two bags of cocaine in his garage. Twobricks of cocaine were also found in the storage locker. The total weight of thecocaine discovered was 1,981.3 grams (from the bag in the trunk of defendant'scar and the amounts found in his basement and garage). The total street value ofthe cocaine was $328,125.

The trial court found defendant guilty on all three counts ofpossession of a controlled substance with intent to deliver. Defendant thenfiled motions for acquittal and arrest of judgment and a new trial. The trialcourt denied the motions and sentenced defendant to 15 years' imprisonment. Thisappeal followed.

Defendant contends that the trial court erred in not grantinghis motion to quash arrest and suppress evidence. Defendant argues that becausePublic Act 89--404, amending the Illinois Municipal Code and permitting peaceofficers to make an extraterritorial arrest, was ruled unconstitutional and voidab initio while his case was pending in the trial court, theChicago police officers did not have authority to arrest defendant in FranklinPark under nonemergency conditions. Defendant also argues that the actions ofthe police in effectuating the extraterritorial arrest here could not be"saved" as a valid citizen's arrest because the officers"asserted official authority" during the arrest.

The State argues that the police officers effectuated aproper citizen's arrest. The State claims that defendant voluntarily gaveDiGiacomo the bag containing cocaine, giving DiGiacomo reasonable grounds tobelieve that defendant was committing a crime as required by the privatecitizen's arrest statute. The State further argues that the officers did not usethe power of their office to gather any evidence against defendant that wouldnot have been available to private citizens. For example, according to theState, receiving information from a private citizen informant and conductingsurveillance with the use of binoculars, walkie-talkies, and radios is not a useof police power unavailable to private citizens. Similarly, the State arguesthat DiGiacomo's announcement that he was a police officer was not a use of thepower of his office because he was not in uniform and was merely introducinghimself when defendant freely admitted that the bag he possessed contained drugsin response to DiGiacomo's open-ended question.

Both parties agree that the standard of review here is denovo. Although a court's ruling on a motion to quash arrest and suppressevidence generally is subject to reversal only if the ruling is manifestlyerroneous, where the trial court has applied the law to uncontroverted facts,the case presents a question of law that is reviewed under a de novostandard. People v. Krueger, 175 Ill. 2d 60, 64, 675 N.E.2d 604 (1996).Here, defendant relies on the undisputed facts, citing only the testimony of thepolice officers and not questioning the officers' credibility. Review of thiscase, therefore, is de novo.

Although not addressed by either defendant or the State intheir briefs, based on our de novo review of the legal issuespresented on appeal, we feel compelled to consider whether the actions of thepolice officers here constituted a seizure of defendant. If no seizure occurredbecause the encounter between the officers and defendant was consensual, theprotections of the fourth amendment are not invoked. The fourth amendment to theConstitution of the United States guarantees freedom from unreasonable searchesand seizures by protecting against unreasonable governmental intrusions. Peoplev. Neal, 109 Ill. 2d 216, 221, 486 N.E.2d 898 (1985). If there is no suchunreasonable government intrusion, there is no search and seizure subject to thewarrant clause of the amendment. Neal, 109 Ill. 2d at 221. When a policeofficer, through the use of physical force or show of authority, has in some wayrestrained the liberty of a citizen, the court may conclude that a"seizure" has occurred. Murray, 137 Ill. 2d at 388, citing Terryv. Ohio, 392 U.S. 1, 19 n. 16, 20 L. Ed. 2d 889, 905 n. 16, 88 S. Ct. 1868,1879 n. 16 (1968). Four examples of circumstances which may be indicative of aseizure, even in a situation where the person did not attempt to leave, include:"(1) the threatening presence of several officers; (2) the display of aweapon by an officer; (3) some physical touching of the person of the citizen;and (4) the use of language or tone of voice indicating that compliance with theofficer's request might be compelled." Murray, 137 Ill. 2d at 390,citing United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497,509, 100 S. Ct. 1870, 1877 (1980).

Much of the testimony regarding the encounter between thepolice and defendant was provided by Officer DiGiacomo, who described theencounter as follows:

"Q [Defendant's counsel]. Then you approached him. Is it your testimony that he handed you this bag?

A [Officer DiGiacomo]. I identified myself as a police officer. I said what do you have in the bag. At this time he replied drugs and handed the bag to me.

***

Q. When did you first--did you approach him on foot or in your vehicle?

A. On foot. I parked my--

Q. Where were you when you first saw him park his vehicle, where were you, how far from him?

A. I was down the street. *** When he went to retrieve the bag from the trunk, then myself and the other officers then converged on him.

Q. When you say converged, how far were you from him when you first approached him?

A. I was down at the end of the block. And as he opened the trunk, reaching in for the bag, reaching in for whatever it was, that's when I started driving up. I seen [sic] the bag come out and then I pulled over to the curb behind his vehicle. I said police officer as I was exiting my vehicle."

When asked during cross-examination whether "there werea lot of police officers on the scene" when he approached defendant,DiGiacomo replied, "Well, everybody else that's on the paper with me, theother six officers, five officers, myself." Additionally, Officer Herreragave a brief description of the encounter, stating:

"What had happened we [the officers] approached and I got out of the car. The detective [DiGiacomo] was actually at the front of the car, approaching toward this way. I was approaching him as the defendant had his back to me. So I saw him hand the bag over to him, but I wasn't close enough to actually hear the whole thing. But I could hear as I was approaching, and obviously I'm making sure everything is secure in the area also."

Based on this testimony, we find that the officers' actions,in fact, constituted a seizure. While defendant was at the rear of his car,DiGiacomo drove his vehicle up to defendant. Although the exact distance fromdefendant was not indicated in the testimony, DiGiacomo was close enough that hecould immediately identify himself as a police officer to defendant as DiGiacomowas exiting his vehicle. There was evidence that DiGiacomo had a badge and a gunat the time. Also, the testimony indicated that five other officers, using theirown vehicles, participated in the surveillance and were also converging ondefendant's vicinity at the time of the encounter. Although the positions anddistance of these other officers are unclear from the record, other than thefact that Officer Herrera was approaching from behind defendant, we find thatbased on the totality of the circumstances here there was a sufficient show ofauthority by the threatening presence of several officers at the time of theencounter to constitute a seizure.

We next address defendant's argument that this seizure couldnot be justified as a valid citizen's arrest. Under the common law, municipaland county police officers had "no authority to arrest a defendant outsidethe territorial limits of the political entity which appointed them to theiroffice." People v. Lahr, 147 Ill. 2d 379, 382, 589 N.E.2d 539(1992). The common law provided a single exception to this rule when theofficers were in "fresh pursuit" of a suspected felon fleeing thatjurisdiction. Lahr, 147 Ill. 2d at 382. That common law rule was modifiedby section 107--3 of the Illinois Code of Criminal Procedure, which provides:

"Arrest by a Private Person. Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed." 725 ILCS 5/107--3 (West 1996).

Pursuant to section 107--3, a police officer outside of hisjurisdiction may make a warrantless arrest if the arrest constitutes a validcitizen's arrest. Lahr, 147 Ill. 2d at 382. When outside of his or herjurisdiction, a police officer's right to make an arrest is no greater than theright of a private citizen. Lahr, 147 Ill. 2d at 382-83. Anextraterritorial arrest will not be upheld if in making the arrest the officeruses the powers of his office to obtain evidence not available to a privatecitizen outside of his jurisdiction. Lahr, 147 Ill. 2d at 383. Peoplev. Niedzwiedz, 268 Ill. App. 3d 119, 122, 644 N.E.2d 53 (1994).

Defendant has not cited to any authority on point in supportof his argument on this issue, and our research reveals none. However, therationale of the cases the State relies upon in opposition to defendant'sargument (People v. Marino, 80 Ill. App. 3d 657, 400 N.E.2d 491 (1980)and People v. Niedzwiedz, 268 Ill. App. 3d 119, 644 N.E.2d 53 (1994)),are, in fact, supportive of defendant's argument.

In Marino, the defendant was arrested without awarrant for burglary in Wood Dale, DuPage County, Illinois, by Chicago policeofficers who had conducted surveillance of the defendant and an accomplice afterthe officers received a report that the defendant had committed a priorburglary. Conducting a stakeout in a nearby apartment, the Chicago policewitnessed the defendant enter the basement of an apartment building in Wood Daleand arrested the defendant outside of the building. Stolen items were discoveredfollowing a postarrest search which the State intended to introduce at trial.The defendant moved to suppress the evidence obtained following his arrest,arguing that his arrest was illegal because the Chicago police did not haveauthority to arrest him in DuPage County for a crime committed in that county. Marino,80 Ill. App. 3d at 659-60. The State argued that the police officers did notlose their official authority to make an arrest merely because the arrestoccurred outside the confines of their territorial jurisdiction. The State alsoargued, in the alternative, that even if the officers lacked official authorityto make the arrest, they made a valid citizen's arrest. The trial court deniedthe defendant's motion, and he again raised the issue on appeal after he wasconvicted.

The Marino court agreed that the Chicago policeofficers lacked official authority to arrest the defendant in DuPage countyunder the circumstances. Marino, 80 Ill. App. 3d at 661. Addressing theState's contention that the arrest was, in the alternative, a valid citizen'sarrest, the Marino court also agreed that the trial court properly deniedthe defendant's motion to suppress, stating, "The relevant inquiry is ***whether or not the person attempting to arrest was authorized to do so bystatute, in any capacity, even though that capacity may not be that which isclaimed." Marino, 80 Ill. App. 3d at 664. The Marino courtfurther stated:

"In sum, we hold that a warrantless arrest effected by a police officer who asserts official authority to arrest which he does not have is nevertheless valid if an arrest made by a private person under the same circumstances would have been valid. As it is clear that the arresting officers here had reasonable grounds to believe that defendant was committing a felony, the arrest was valid as an arrest by private persons[.]" (Emphasis added.) Marino, 80 Ill. App. 3d at 665.

In Niedzwiedz, the defendant was arrested inBensenville, Illinois by a police officer from Elk Grove Village, Illinois.While assisting another officer from Elk Grove with a traffic arrest in ElkGrove, a private citizen approached the defendant's subsequent arresting officerand informed him that he had almost been struck by the defendant's vehicle asthe defendant drove from a nearby restaurant. The citizen also stated that hefollowed the defendant to a gas station in Bensenville and witnessed himswerving on the road and exiting his vehicle. The citizen insisted that thedefendant was intoxicated. Niedzwiedz, 268 Ill. App. 3d at 120. The ElkGrove officer drove to the gas station in Bensenville where he saw a vehicle,matching the description he had been given, pull out of the station. Whilefollowing the vehicle, the officer witnessed the defendant swerve across the fogline and the center lane several times, requested assistance from another ElkGrove officer, and pulled the defendant over to the side of the road inBensenville. The officers arrested the defendant for driving under the influenceof alcohol after the defendant failed several field sobriety tests. Defendantwas later found guilty by the trial court. Niedzwiedz, 268 Ill. App. 3dat 121.

On appeal, the Niedzwiedz court agreed with the trialcourt that the Elk Grove officer effectuated a proper citizen's arrest eventhough he did not have official authority because the arrest and offense wereconducted in Bensenville. The court disagreed with the defendant's argument thatthe officer exercised the "power of his office passively by wearing auniform near his squad car at the scene of an arrest" when the privatecitizen approached the officer with the information regarding the defendant'sdriving while intoxicated. The Niedzwiedz court noted that the officerhad not "affirmatively [done] anything" and had only been approachedby a citizen at that point. The court also found that the officer did notutilize the power of his office to gather evidence unavailable to a privatecitizen when the officer called for assistance on his car radio. The court foundthat asking for assistance was not gathering evidence and that citizens hadaccess to such radio devices and phones. Niedzwiedz, 268 Ill. App. 3d at122-23.

In summary, the Marino and Niedzwiedz courtsfound that the police officers did not use the power of their offices to gatherinformation outside of their jurisdictions that was otherwise unavailable toprivate citizens. The police officers conducted valid citizen arrests becausethey had gathered evidence, serving as the probable cause necessary to make thearrests, in a manner available to any citizen; i.e., in Marino,the officers were conducting a stakeout when they personally witnessed thedefendant enter the basement of an apartment building, giving them, or anycitizen, reasonable grounds to arrest the defendant for burglary, and in Niedzwiedz,the officer witnessed the defendant swerving across the fog and center lineswhile driving, giving him, or any citizen, reasonable grounds to arrest thedefendant.

In the present case, unlike the circumstances in Marinoand Niedzwiedz, Officer DiGiacomo used the power of his office to collectthe evidence necessary to give him reasonable grounds to arrest defendant. AsDiGiacomo saw defendant open the trunk of his car, DiGiacomo approacheddefendant and immediately identified himself as a police officer, even though hedid not have official authority to question defendant as a Chicago policeofficer in Franklin Park. It is undisputed that despite the informant'sinformation that defendant dealt drugs from his home, the officers did notwitness defendant commit any offense or crime during their surveillance. Theyonly saw defendant remove a bag from a storage facility, which was not mentionedby the informant, and return home. At this point there was no reasonable groundsfor a private citizen to stop or arrest defendant.

Although the testimony at the suppression hearing indicatesthat defendant's response to Officer DiGiacomo's question regarding what was inthe bag was that it contained drugs and that defendant handed the bag to him,this only occurred after DiGiacomo approached defendant and identified himselfas a police officer. It was only after this representation of official authoritythat defendant handed the bag to DiGiacomo, giving the officers the opportunityto discover the cocaine in the bag and giving them reasonable grounds to arrestdefendant. The other officers also converged on defendant at about this time. Itis unlikely that defendant would have identified the contents of the bag andhanded it to any citizen, who would not have had the right to check the contentsof the bag. This is not a situation, as in Marino and Niedzwiedz,where the police obtained the evidence necessary for the arrest without the useof some official authority. Because DiGiacomo obtained the evidence needed forthe arrest by identifying himself as a police officer in an area outside of hisjurisdiction, he was using a means to obtain evidence not available to anaverage citizen, and the officers, therefore, did not make a valid citizen'sarrest here. Accordingly, we find that the trial court properly ruled that thepolice did not make a valid citizen's arrest.

Defendant also contends that the trial court erred in findingthat the "good faith exception" to the "exclusionary rule"of the fourth amendment, established by the United States Supreme Court in UnitedStates v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984),permitted the State to use the evidence "derived from the extraterritorialarrest" at defendant's trial because the Chicago police officers believedin good faith that the statute authorizing them to arrest defendant in FranklinPark was valid. Defendant distinguishes Leon, which involved aninvalidated warrant, from the present case. Defendant also argues that asextension of Leon in Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d364, 107 S. Ct. 1160 (1987), to situations where police officers act in goodfaith on a statute that is subsequently ruled unconstitutional, wasrejected by the Illinois Supreme Court in People v. Krueger, 175 Ill. 2d60, 675 N.E.2d 604 (1996). Defendant maintains that because the Kruegercourt rejected application of the good faith exception to situations involvingan unconstitutional statute, the trial court erred in applying the exceptionhere.

The State contends that because the amendment created byIllinois Public Act 89--404 (P.A. 89--404), which, in part, gave police officersfull police power in adjoining municipalities, was declared void due to thelegislature's violation of the single subject rule, rather than because theamendment authorized unconstitutional searches and seizures, the good faithexception to the exclusionary rule of the fourth amendment still applies to theChicago police officers' actions in the present case. The State argues,therefore, that the trial court properly denied defendant's motion to quasharrest and suppress evidence because the arrest was proper and the evidencediscovered as a result of the arrest was admissible.

Prior to 1995, section 7--4--8 of the Illinois Municipal Code(Code) provided:

"The police of any municipality in such a police district may go into any part of the district to suppress a riot, to preserve the peace, and to protect the lives, rights, and property of citizens." 65 ILCS 5/7--4--8 (West 1994).

Section 7--4--7 defined a "police district" as theterritory "embraced within the corporate limits of adjoining municipalitieswithin any county in this State[.]" 65 ILCS 5/7--4--7 (West 1996). P.A.89--404, effective August 20, 1995, amended section 7--4--8 to provide:

"The police of any municipality in such a police district have full authority and power as peace officers and may go into any part of the district to exercise that authority and power." 65 ILCS 5/7--4--8 (West 1996).

While the present case was pending, our supreme court foundthat P.A. 89--404 was unconstitutional because it violated the single subjectrule of the Illinois Constitution. People v. Reedy, 186 Ill. 2d 1, 11,708 N.E.2d 1114 (1999). "When an act is determined to be unconstitutionalbecause it violates the single subject rule, the effect is to render invalideach and every provision of the unconstitutional act regardless of whether theindividual provisions in the act could pass constitutional muster." Peoplev. Ciesler, 304 Ill. App. 3d 465, 469, 710 N.E.2d 1270 (1999). An act thatis declared unconstitutional is void ab initio. People v.Manuel, 94 Ill. 2d 242, 244-45, 446 N.E.2d 240 (1983). Thus, "[t]heeffect of enacting an unconstitutional amendment to a statute is to leave thelaw in force as it was before the adoption of the amendment." People v.Gersch, 135 Ill. 2d 384, 390, 553 N.E.2d 281 (1990). The Illinois GeneralAssembly "reenacted" the 1995 version of section 7--4--8 (65 ILCS5/7--4--8 (West 1994)) in P.A. 90--593, effective June 19, 1998. Curativelegislation may only be applied in a prospective manner. Reedy, 186 Ill.2d at 17-18.

"When evidence is obtained in violation of the FourthAmendment, the judicially developed exclusionary rule usually precludes its usein a criminal proceeding against the victim of [an] illegal search andseizure." Illinois v. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373,107 S. Ct. at 1165. The primary purpose of the exclusionary rule is to deterfuture unlawful police conduct, effectuating the guarantee of the fourthamendment against unreasonable searches and seizures. Krull, 480 U.S. at347, 94 L. Ed. 2d at 373, 107 S. Ct. at 1165. The exclusionary rule is notintended, nor is it able, to cure an invasion of a defendant's rights which hehas already suffered. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S.Ct. at 1165. The rule operates as a safeguard of fourth amendment rights throughits deterrent effect, rather than as a personal constitutional right of theparty aggrieved. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct.at 1166. Application of the exclusionary rule as a remedial device has beenrestricted to those situations where the rule's remedial purpose is effectivelyadvanced. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct. at1166.

The parties in the present case rely on Leon, Krull,Krueger, People v. McGee, 268 Ill. App. 3d 32, 644 N.E.2d 439(1994), and People v. Carlson, 185 Ill. 2d 546, 798 N.E.2d 372 (1999), insupport of their arguments. In Leon, the Supreme Court held that theexclusionary rule should not be applied to exclude evidence obtained by policeofficers who reasonably relied, under an objective standard, on a warrant issuedby a neutral magistrate, even though the warrant ultimately was found to bedefective. Leon, 468 U.S. at 917, 82 L. Ed. 2d at 695, 104 S. Ct. at3417. The Leon court based its decision on three factors: (1) theexclusionary rule was historically designed to deter police misconduct ratherthan to punish errors by judges in issuing warrants; (2) there was no evidencepresented that judges were inclined to ignore or subvert the fourth amendment;and (3) there was no basis for the Court to believe that the exclusion ofevidence seized pursuant to a faulty warrant would deter judges issuing suchwarrants. Leon, 468 U.S. at 916-17, 82 L. Ed. 2d at 694, 104 S. Ct. at3417. The Leon court further found that the intended deterrent effect ofthe exclusionary rule was absent when a police officer acted in good faith inobtaining a warrant from a magistrate and acted within its scope. Leon,468 U.S. at 920-21, 82 L. Ed. 2d at 697, 104 S. Ct. at 3419. The Leoncourt noted the absence of any deterrent effect on the magistrate in applyingthe exclusionary rule because the magistrate was not an adjunct of the lawenforcement team. Leon, 468 U.S. at 917, 82 L. Ed. 2d at 695, 104 S. Ct.at 3417.

In Krull, the Supreme Court granted certiorarito consider whether the good faith exception to the fourth amendmentexclusionary rule also applied when a police officer's reliance on theconstitutionality of a statute is objectively reasonable, but the statute islater declared unconstitutional. Krull, 480 U.S. at 346, 94 L. Ed. 2d at373, 107 S. Ct. at 1165. Krull involved a Chicago police officer whoinspected a wrecking yard, owned by the respondents, pursuant to a then-existingstatute which required licensees, owning businesses selling motor vehicles andautomotive parts, to permit state officials to inspect records at any time, dayor night, and to allow inspection of the premises of the business to determinethe accuracy of the records. The officer discovered that the serial numbers ofseveral of the vehicles indicated that they were stolen. The owners were laterarrested and moved to suppress the evidence seized from the yard, relying on afederal court ruling which held that the statute authorizing the warrantlessadministrative search of licensees was unconstitutional. Krull, 480 U.S.at 342-44, 94 L. Ed. 2d at 370-71, 107 S. Ct. at 1162-64. The trial court deniedthe defendant's motion.

The case proceeded to the United States Supreme Court, whichconsidered whether the good faith exception established in Leon shouldapply in situations where officers relied in good faith on a statute laterdeclared unconstitutional. Finding that the reasoning in Leon was equallyapplicable to the facts in Krull, the Krull court similarly foundthat applying the exclusionary rule to suppress evidence would have littledeterrent effect on a police officer's actions where the officer acted inobjectively reasonable reliance on a statute. Krull, 480 U.S. at 349-50,94 L. Ed. 2d at 375, 107 S. Ct. at 1166-67. Specifically, the Krull courtstated that "'[p]enalizing the officer for the [legislature's] error,rather than his own, cannot logically contribute to the deterrence of fourthamendment violations.'" Krull, 480 U.S. at 349-50, 94 L. Ed. 2d at375, 107 S. Ct. at 1167, quoting Leon, 468 U.S. at 921, 94 L. E. 2d at697, 107 S. Ct. at 3419. The Court noted that police were the target of theexclusionary rule, not the legislature, and that there was no evidence thatlegislators, like judges, were inclined to subvert the fourth amendment. Krull,480 U.S. at 351, 94 L. Ed. 2d at 376, 107 S. Ct. at 1168. The Court further heldthat it was adopting an "objective" standard of reasonableness, asopposed to a "subjective" standard, and that an officer cannot be saidto have acted in good faith reliance upon a statute if a reasonable officershould have known that the statute was unconstitutional. Krull, 480 U.S.at 355, 94 L. Ed. 2d at 379, 107 S. Ct. at 1168.

Applying its reasoning to the facts of the case, the Krullcourt determined that the Chicago police officer acted in good faith on theunconstitutional statute where the statute allowed warrantless administrativesearches in a single industry that the state had determined required extensiveregulation. Krull, 480 U.S. at 359-60, 94 L. Ed. 2d at 381-82, 107 S. Ct.at 1172. Four justices, however, dissented, in part, because they felt that themajority's opinion gave the legislature a "grace period" during whichthe police could perform unreasonable searches in order to convict those whomight otherwise have escaped, creating an incentive for the legislature topromulgate unconstitutional laws. Krull, 480 U.S. at 366, 94 L. Ed. 2d at385, 107 S. Ct. at 1175 (O'Connor, J., dissenting).

In People v. Krueger, 175 Ill. 2d 60, 675 N.E.2d 604(1996), our supreme court considered whether section 108--8(b)(2) of the"no-knock" statute (725 ILCS 5/108--8(b)(2)(West 1994)), authorizingpolice officers to make a no-knock entry into premises where they had knowledgethat a suspect kept a firearm, "violates constitutional guarantees againstunreasonable searches and seizures." Krueger, 175 Ill. 2d at 61. In Krueger,the police obtained a warrant to search the defendant's home based oninformation received from an informant that he had recently purchased drugs fromthe defendant at his home and that the defendant kept a gun there. The judgeissuing the warrant permitted the police to enter the home without knocking andannouncing their office pursuant to the no-knock statute because the defendantwas known to keep a firearm on the premises. The defendant moved to quash hisarrest and suppress evidence seized. Krueger, 175 Ill. 2d at 62-63.

The trial court ruled that the no-knock statute wasunconstitutional and declined to follow Krull, based on this court'sdecision in People v. McGee, 268 Ill. App. 3d 32, 644 N.E.2d (1994),holding that to do so would violate the Illinois Constitution. Krueger,175 Ill. 2d at 63. The Krueger court agreed that the no-knock statute wasunconstitutional, and then addressed the issue of whether the evidence seizedpursuant to the warrant based on that statute should be excluded. The Kruegercourt ruled that the good faith exception to the exclusionary rule, recognizedin Krull, did not "comport" with article I, section 6, of theIllinois Constitution of 1970. The Krueger court focused on JusticeO'Connor's dissent in Krull, which the court noted revealed severalserious flaws in the Krull decision. The Krueger court furtherheld that it had the authority to interpret provisions of the state constitutionmore broadly than the United Stated Supreme Court interprets similar provisionsof the federal constitution and found that the exclusionary rule arising out ofarticle I, section 6 of the state constitution continued to "afford theprotection abrogated by Krull." Because the Illinois exclusionaryrule had been historically understood to bar evidence obtained as a result of anunconstitutional statute, so long as that statute purported to authorize anunconstitutional search or seizure, the Krueger court declined tofollow Krull. Krueger, 175 Ill. 2d at 75-76.

In the present case, the trial court relied on People v.Carlson, 185 Ill. 2d 546, 708 N.E.2d 372 (1999), in denying defendant'smotion to quash arrest and suppress evidence. In Carlson, the police hadobtained an anticipatory search warrant which was contingent upon acceptance ofa package at the defendant's residence. The defendant was arrested after apostal inspector discovered drugs, through the use of a trained dog, in apackage addressed to the defendant. After the defendant was arrested and thedrugs seized pursuant to the execution of the warrant, anticipatory warrantswere determined to be unauthorized by statute in Illinois in People v. Ross,168 Ill. 2d 347, 354, 659 N.E.2d 1319 (1995). The defendant moved forreconsideration of her prior motion to suppress evidence, which the trial courtgranted, suppressing the evidence, and this court reversed. People v. Carlson,287 Ill. App. 3d 700, 708, 679 N.E.2d 791 (1997).

In affirming this court, our supreme court agreed thatanticipatory warrants were not authorized by statute, but it determined thatsuch warrants did not violate either the federal or state constitutions. Carlson,185 Ill. 2d at 555. Addressing whether the police officers' objectivelyreasonable reliance on the warrant permitted the admission of the evidence, the Carlsoncourt distinguished both Krueger and Krull on the basis that theyinvolved searches pursuant to statutes that were later determined to be constitutionallyinvalid, as opposed to a warrant that was later determined to be statutorilyinvalid. Based on Leon, the Carlson court further held that thepolice officers relied in good faith on the warrant issued pursuant to thestatute that, prior to Ross, could have supported a reasonable beliefthat it authorized anticipatory warrants. Carlson, 185 Ill. 2d at 560-61.

In the present case, it is undisputed that the Chicago policeofficers were not acting pursuant to a warrant issued by a neutral magistratewhen they investigated and arrested defendant. The issue here is only whetherthe police officers' "good faith" reliance on the constitutionality ofthe then-existing statute, authorizing police officers to exerciseextraterritorial authority, permits the introduction of the evidence seized. Aswe noted above, a statute that is ruled unconstitutional is considered void abinitio. Because the statute here was declared unconstitutional whiledefendant's case was pending, we view the facts of the case as though thestatute never existed. The police officer's "good faith" reliance onthe statute as it existed at the time of defendant's arrest, therefore, isirrelevant to our consideration.

Because we have found that the police were not authorized toexercise their authority outside of the Chicago city limits, absent anemergency, which admittedly did not occur here, defendant's arrest and theseizure of evidence in Franklin Park were illegal.

We also briefly note, in its analysis of article I, section6, of the Illinois Constitution of 1970, our supreme court, in Krueger,refused to recognize the "good faith" exception to the fourthamendment exclusionary rule established in Krull. Accordingly, the goodfaith exception should not have been applied here. Additionally, the trialcourt's reliance on Carlson was misplaced as that case involved the useof a anticipatory warrant which the Carlson court determined was notauthorized by statute, whereas in the instant case the police acted pursuant toa statute that was declared unconstitutional.

Because we find that the police officers here made an illegalarrest, we reverse the trial court's denial of defendant's second motion toquash arrest and suppress evidence as it applies to defendant's statement toOfficer DiGiacomo that the bag taken from the trunk of defendant's car containeddrugs and to the bag itself and its contents. That evidence should have beensuppressed as it was obtained as a result of the improper seizure. Accordingly,we remand this case to the trial court for further consideration, in light ofthis opinion, to determine whether the illegal arrest tainted the subsequentevidence recovered by the police from defendant's home, garage, and storagelocker. Our supreme court has held that "[o]nce an illegal seizure hasoccurred, that illegality may infect and taint the fruits that subsequentlyresulted." People v. Brownlee, 186 Ill. 2d 501, 519, 713 N.E.2d 556(1999). Although a defendant may have voluntarily given the police consent tosearch, the police may have obtained the consent by the exploitation of anillegal arrest and, in doing so, violated the defendant's fourth amendmentrights. People v. Odom, 83 Ill. App. 3d 1022, 1027, 404 N.E.2d 997(1980). A defendant's consent to search following an illegal detention may befound to have been tainted by the illegality and require suppression of anyevidence found pursuant to the illegally obtained consent. People v. Delaware,314 Ill. App. 3d 363, 373, 731 N.E.2d 904 (2000).

Because we are remanding this cause for further proceedings,we also find that the stipulated evidence that was presented at defendant'sbench trial was sufficient to support his conviction. We therefore conclude thatthere is no double jeopardy problem that would foreclose a retrial. Thisconclusion must not be construed as a determination of guilt or innocence thatwould be binding on retrial if that becomes necessary. See People v. Taylor,76 Ill. 2d 289, 309-10, 391 N.E.2d 366 (1979).

For the reasons stated, this cause is remanded for a newhearing on defendant's second motion to quash arrest and suppress evidence, withdirections to suppress defendant's statement to Detective DiGiacomo that the baghe was holding contained drugs and to suppress the bag and its contents whichwere recovered by the police when they first approached defendant.

Reversed and remanded, with directions.

CERDA and WOLFSON, JJ., concur.