People v. Holmes, 2017 IL 120407 (July). Episode 387 (Duration 10:12)
Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause.
Defendant filed a motion to quash his arrest and suppress evidence.
He says 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), the so called Aguilar charges, which were declared facially unconstitutional.
Defendant argued that the void ab initio doctrine retroactively invalidated probable cause and thereby incidentally mandating the suppression of the evidence inculpating defendant for his FOID violation.
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.
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.
Therefore, probable cause was based solely upon defendant’s violation of the subsequently invalidated AUUW subsections.
Void Ab Initio
Defendant 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.
Any other result, according to defendant, would be counter to the void ab initio doctrine.
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 (quoting Perlstein v. Wolk, 218 Ill. 2d 448, 455 (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 (1990) (quoting People v. Schraeberg, 347 Ill. 392, 394 (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.”
The law is clear that a defendant cannot be prosecuted under a statute that is void ab initio. See McFadden, 2016 IL 117424, ¶ 19. 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.
Don’t Take The Latin To Serious
The Illinois Supreme Court said that strict application of the void ab initio doctrine in the present context, to the extent posited by defendant, would conflict
(1) with precedent from the United States Supreme Court and
(2) with two recent decisions from the court.
Federal case law is clear that, under the facts of this case, probable cause would not be retroactively invalidated by the subsequent invalidation of the statute upon which probable cause was based at the time of the arrest. DeFillippo, 443 U.S. 31; Charles, 801 F.3d 855.
Kind Of Already Pissed On Void Ab Initio Doctrine
The court said this analysis was compelling.
Strict application of the Illinois void ab initio doctrine, to the literal extent posited by defendant, would conflict with our continued adherence to the limited lockstep doctrine.
Although we are obligated to declare an unconstitutional statute invalid and void, such a declaration by this court cannot, within the strictures of the separation of powers clause, repeal or otherwise render the statute nonexistent.
Also, in McFadden this court rejected the defendant’s argument that the void ab initio doctrine, in and of itself, procedurally operated to overturn the 2002 AUUW conviction.
The conviction would be treated as valid unless and until it was declared otherwise via judicial process.
We hold that the void ab initio doctrine does not retroactively invalidate probable cause based on a statute later held unconstitutional on federal constitutional grounds or on state constitutional grounds subject to the limited lockstep doctrine.
In the instant case, Officer Barrera had probable cause at the time of defendant’s arrest, and thus there is no reason to suppress the evidence collected incidental to the arrest.
Probable Cause Existed
Because we conclude that probable cause existed at the time of defendant’s arrest and that probable cause was not retroactively invalidated by the subsequent declaration of unconstitutionality on second amendment grounds, the exclusionary rule does not apply. Thus, there is no need to consider the good-faith exception to the exclusionary rule.
The void ab initio doctrine did not retroactively invalidate probable cause for defendant’s arrest because probable cause was predicated on a statute that was subsequently declared unconstitutional on federal grounds.
Because probable cause is a component of both the federal and state search and seizure provisions, we follow federal law pursuant to the limited lockstep doctrine.