{ "id": 2972144, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FREDDIE DOWERY, Appellant", "name_abbreviation": "People v. Dowery", "decision_date": "1975-11-25", "docket_number": "No. 46890", "first_page": "200", "last_page": "210", "citations": [ { "type": "official", "cite": "62 Ill. 2d 200" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "400 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12082498, 12082886, 12082793, 12082697, 12082538, 12082604, 12082643, 12082838 ], "opinion_index": 0, "case_paths": [ "/us/400/0851-01", "/us/400/0851-08", "/us/400/0851-06", "/us/400/0851-05", "/us/400/0851-02", "/us/400/0851-03", "/us/400/0851-04", "/us/400/0851-07" ] }, { "cite": "44 L. Ed. 2d 484", "category": "reporters:federal", "reporter": "L. 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Rptr.", "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "463 P.2d 734", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "1 Cal. 3d 641", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 1183322 ], "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/1/0641-01" ] }, { "cite": "54 Ill.2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932873 ], "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0552-01" ] }, { "cite": "505 P.2d 1399", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10554387 ], "opinion_index": 0, "case_paths": [ "/p2d/505/1399-01" ] }, { "cite": "499 P.2d 49", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1973, "opinion_index": 0 }, { "cite": "7 Wash. App. 190", "category": "reporters:state", "reporter": "Wash. 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Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "404 U.S. 880", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6355968, 6355421, 6356290, 6354473, 6354735, 6354962, 6356466, 6354034, 6355608, 6355834, 6354269 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/404/0880-09", "/us/404/0880-06", "/us/404/0880-10", "/us/404/0880-03", "/us/404/0880-04", "/us/404/0880-05", "/us/404/0880-11", "/us/404/0880-01", "/us/404/0880-07", "/us/404/0880-08", "/us/404/0880-02" ] }, { "cite": "438 F.2d 1027", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2206441 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/438/1027-01" ] }, { "cite": "318 F. Supp. 648", "category": "reporters:federal", "reporter": "F. 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FREDDIE DOWERY, Appellant." ], "opinions": [ { "text": "MR. JUSTICE KLUCZYNSKI\ndelivered the opinion of the court:\nThe sole issue for review in this appeal is whether evidence which has been suppressed in proceedings on a substantive criminal offense may be subsequently utilized to revoke probation. The appellate court held that such evidence was admissible (People v. Dowery, 20 Ill. App. 3d 738) and we granted leave to appeal.\nOn April 16, 1971, defendant, Freddie Dowery, pleaded guilty to armed robbery in the circuit court of Cook County and was placed on 5 years\u2019 probation. On February 9, 1972, defendant was arrested and charged with burglary. During a hearing on the burglary charge, defense counsel sought to suppress certain items taken in the burglary which defendant had in his possession shortly before his arrest.\nThe record discloses that Officer J ames Polk talked to an unidentified citizen at 71st Street and South Wabash Avenue in Chicago. Polk was told that a burglary may have occurred in that area and several men were seen carrying merchandise away. Polk was unable to corroborate the fact that a burglary had taken place or its location. Polk was not in uniform and he was driving an unmarked police car at this time.\nShortly thereafter Polk observed the defendant and another, identified as \u201cJunkie Slim,\u201d walking northward in the 6700 block of South Wabash at about 3:30 p.m. Polk did not have a warrant for defendant\u2019s arrest nor had he observed defendant commit a crime. As he drove near defendant, Polk saw that defendant was carrying a bulky item which had been covered with a sheet and blanket. Defendant and the other man crossed the street and began to walk into an alley. They turned and, seeing Polk, both men ran after dropping the items they were carrying. Dowery was apprehended, but the other man eluded the police. At the conclusion of this hearing the trial court sustained defendant\u2019s motion to suppress. The State moved that the burglary charge be stricken with leave to reinstate. No appeal was taken from the suppression order.\nPrior to disposition of the burglary charge the State filed an application to revoke defendant\u2019s probation which had been imposed on the armed robbery conviction. The application recited that the basis for revocation of probation was defendant\u2019s scheduled appearance on the burglary matter.\nFollowing the hearing on the motion to suppress certain evidence taken in the burglary, a rule to show cause was issued for the revocation of defendant\u2019s probation. At the probation revocation proceedings the burglary victim identified the items discarded by the defendant and the other man as being her property. Officer Polk reiterated his testimony concerning defendant\u2019s apprehension. Polk further said that after defendant was placed in custody and advised of his constitutional rights, defendant stated he did not commit the burglary but he did help carry the stolen property away. Defendant testified on his own behalf claiming he did not know the property was stolen until his companion' told him after they saw Polk. Defendant conceded that he made the incriminating admission as to his participation after the burglary occurred.\nAt the conclusion of the hearing on May 17, 1972, the trial court revoked defendant\u2019s probation and sentenced him to the penitentiary for a term of 2 to 4 years. The record reflects that on the day notice of appeal was filed, the trial court, on defendant\u2019s motion and after hearing evidence in aggravation and mitigation, modified the maximum sentence to 3 years.\nDefendant maintains that the affirmative use of evidence at the probation revocation proceeding which had been previously suppressed violated his constitutional right to be free from illegal searches and seizures. He requests that the \u201cexclusionary rule\u201d be applied to revocation proceedings. Although counsel have stated during oral argument that the correctness of the suppression order was arguable, the propriety of that disposition is not before this court.\nThe United States Supreme Court has said that the \u201cexclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens \u2018to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ***.\u2019 Under this 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.\u201d (United States v. Calandra (1974), 414 U.S. 338, 347, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 619.) As that court has recently explained, the application of the \u201cexclusionary rule\u201d safeguards \u201cFourth Amendment guarantees in two respects: \u2018in terms of deterring lawless conduct by federal officers,\u2019 and by \u2018closing the doors of the federal courts to any use of evidence unconstitutionally obtained.\u2019 [Citation.] These considerations of deterrence and of judicial integrity, by now, have become rather commonplace in the Court\u2019s cases. [Citations.] \u2018The rule is calculated to prevent, not to repair. Its purpose is to deter \u2014 to compel respect for the constitutional guarantee in the only effectively available way \u2014 by removing the incentive to disregard it.\u2019 [Citation.] But \u2018[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.\u2019 \u201d (Brown v. Illinois (1975), 422 U.S. 590, 599-600, 45 L. Ed. 2d 416, 424-5, 95 S. Ct. 2254, 2259-60.) This judicially created remedy is applicable to State courts. (Mapp v. Ohio (1961), 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090, 81 S. Ct. 1684, 1691.) But in determining whether the \u201cexclusionary rule\u201d should be extended to certain proceedings a balancing test has been utilized to limit application of the rule \u201cto those areas where its remedial objectives are thought most efficaciously served.\u201d United States v. Calandra (1974), 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 620.\nWhile a defendant is entitled to due process of law at probation revocation proceedings, significant dissimilarities exist between such proceedings and a criminal trial. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759; People v. Beard (1974), 59 Ill.2d 220, 226, cert. denied, 421 U.S. 992, 44 L. Ed. 2d 483, 95 S. Ct. 2001.) In Gagnon v. Scarpelli the Supreme Court noted the varying interests involved in revoking probation. The defendant has an interest not to have his liberty unjustifiably curtailed. The State has the interest not to interrupt a successful rehabilitation effort, but the State must not imprudently endanger community safety.\nIt is within this context that defendant\u2019s contention must be viewed in order to determine whether the \u201cexclusionary rule\u201d should have been applied to his probation revocation. In resolution of this issue we are aided by numerous decisions which have discussed the matter. With limited authority to the contrary, the overwhelming number of reported cases have held that the fourth amendment\u2019s \u201cexclusionary rule\u201d was not applicable under the circumstances to probation revocation proceedings or qualitatively comparable proceedings to revoke parole. United States v. Winsett (9th Cir. 1975), 518 F.2d 51; United States v. Farmer (6th Cir. 1975), 512 F.2d 160, cert. denied,---U.S.---, 46 L. Ed. 2d 305, 96 S. Ct. 397; United States v. Brown (5th Cir. 1973), 488 F.2d 94; United States v. Hill (7th Cir. 1971), 447 F.2d 817; United States ex rel. Sperling v. Fitzpatrick (2d Cir. 1970), 426 F.2d 1161; United States ex rel. Lombardino v. Heyd (E.D. La. 1970), 318 F. Supp. 648, aff\u2019d per curiam (5th Cir.) 438 F.2d 1027, cert. denied 404 U.S. 880, 30 L. Ed. 2d 160, 92 S. Ct. 195; State v. Caron (Me. 1975), 334 A.2d 495; People v. Coleman (1975), 13 Cal. 3d 867, 876 n.8, 533 P.2d 1025, 1033 n.8, 120 Cal. Rptr. 384, 393 n.8; State v. Thorsness (Mont. 1974), 528 P.2d 692; People v. Atencio (Colo. 1974), 525 P.2d 461; Commonwealth v. Kates (1973), 452 Pa. 102, 305 A.2d 701; Stone v. Shea (1973), 113 N.H. 174, 304 A.2d 647\u2022, Reeves v. Turner (1972), 28 Utah 2d 310, 501 P.2d 1212; Barker v. State (Tenn. Grim. App. 1972), 483 S.W.2d 586; State v. Kuhn (1972), 7 Wash. App. 190, 499 P.2d 49; but see Michaud v. State (Okla. Grim. App. 1973), 505 P.2d 1399.\nIn analyzing many of the aforementioned cases, the Supreme Court of Maine in State v. Caron observed: \u201cThe rationale of the decisions is that since the Federal Fourth Amendment \u2018evidence-exclusionary\u2019 rule is operative in any event in all \u2018criminal prosecutions\u2019, the additional furtherance of its policy objectives achieved by extending the rule to hearings for revocation of probation (or parole) is insufficient to justify the concomitant impairment of the proper functioning of the probation-parole system.\u201d (334 A.2d 495, 499.) And in United States v. Winsett the Court of Appeals remarked that at a probation revocation proceeding all reliable evidence should be available to gauge a defendant\u2019s rehabilitative effort. It concluded that extension of the \u201cexclusionary rule\u201d to such proceedings \u201cwould tend to frustrate the remedial purposes of the probation system.\u201d 518 F.2d 51, 55.\nThe only reservation expressed by several courts in denying applicability of the \u201cexclusionary rule\u201d to a revocation proceeding might occur in situations where police harassment of probationers is demonstrated. (E.g., United States v. Winsett, 518 F.2d 51, 54 n.5; United States v. Farmer, 512 F.2d 160, 162; United States ex rel. Lombardino v. Heyd, 318 F. Supp. 648, 651.) The facts of the present case plainly show an absence of any police harassment.\nIn view of the prevailing authority we reject defendant\u2019s position that would completely prohibit introduction of evidence at a probation revocation hearing if such evidence was obtained in violation of the fourth amendment. The grant of probation was imposed upon defendant in the present case after the trial court\u2019s consideration that he was not likely to commit another offense; that his rehabilitation would be advanced by probation; and, that the public interest would be served by such disposition. (Ill. Rev. Stat. 1971, ch. 38, par. 117 \u2014 1.) It is clear that granting or denying probation to a convicted defendant necessarily requires the balancing of the character and background of the defendant and the interests of society. (See People ex rel. Ward v. Moran (1973), 54 Ill.2d 552, 554.) During a revocation hearing the interests of society must be amply considered. (See In re Martinez (1970), 1 Cal. 3d 641, 650, 463 P.2d 734, 740, 83 Cal. Rptr. 382, 388, cert. denied, 400 U.S. 851, 27 L. Ed. 2d 88, 91 S. Ct. 71.) Merely because there may exist a technical deficiency in police conduct, a trial court should not be forced to release a defendant and return him to a probationary status where there is patent evidence of a serious probation violation.\nDefendant suggests that, if illegally seized evidence may be introduced in probation revocation proceedings, this will lead to police abuse in the treatment of probationers. As heretofore noted, various courts have cautioned that police harassment of probationers will preclude introduction of improperly seized evidence at a revocation proceeding. We note when similar speculative arguments of police abuse were advanced in analogous situations, the United States Supreme Court refused to accept this as a basis for modifying its position on the defense of entrapment (United States v. Russell (1973), 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 373, 93 S. Ct. 1637, 1643) or precluding introduction of an accused\u2019s statements for impeachment purposes if they are taken in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. (Oregon v. Hass (1975), 420 U.S. 714, 43 L. Ed. 2d 570, 578, 95 S. Ct. 1215, 1221.) If a police harassment is shown, the judiciary may impose appropriate sanctions to deter misconduct. Cf. Latta v. Fitzharris (9th Cir. 1975), 521 F.2d 246, 252, cert. denied,---U.S.---, 46 L. Ed. 2d 130, 96 S. Ct. 200.\nDefendant further claims that application of the \u201cexclusionary rule\u201d to probation revocation proceedings is mandated by State law. He relies upon section 12 of article I of the 1970 Constitution, which provides:\n\u201cEvery person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely and promptly.\u201d\nDefendant argues that his constitutional rights were violated by the purported illegal arrest and search. He urges that the \u201cwrong\u201d perpetrated upon him by the police be remedied by prohibiting the use of illegally obtained evidence. In Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274, 277, this court remarked that the constitutional predecessors of section 12 of article I \u201care an expression of a philosophy and not a mandate that a \u2018certain remedy\u2019 be provided in any'specific form ***.\u201d An examination of section 12 of article I discloses no contrary intent in this regard. (See Helman and Whalen, Constitutional Commentary, S.H.A. Const, of 1970, art. I, sec. 12, p. 556.) Under the circumstances of this case defendant was afforded a remedy when the evidence was suppressed at the criminal proceeding. Having concluded that defendant did not have a right to a suppression of the evidence at the probation revocation proceeding, we find that there was no violation of section 12 of article I of the 1970 Constitution.\nNor do we believe that our recent decision in People v. Grayson (1974), 58 Ill.2d 260, cert. denied, 421 U.S. 994, 44 L. Ed. 2d 484, 95 S. Ct. 2001, is dispositive of this matter. In Grayson the defendant was acquitted of armed robbery and the State then sought to revoke his probation on a prior conviction. The sole basis for the revocation was the charge which had resulted in defendant\u2019s acquittal. This court applied the doctrine of collateral estoppel to preclude relitigation of the same issue upon the same evidence, i.e., defendant\u2019s identity as a participant in the crime.\nGrayson defined the principle of collateral estoppel to mean \u201c \u2018that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.\u2019 \u201d (58 Ill.2d 260, 263.) In the present case the doctrine of collateral estoppel would not apply, for we hold that, except in limited circumstances which are not present here, no issue arises in probation revocation proceedings as to the admissibility of evidence previously suppressed.\nAccordingly, the judgment of the appellate court is affirmed.\nJudgment affirmed.\nMR. JUSTICE CREES took no part in the consideration or decision of this case.", "type": "majority", "author": "MR. JUSTICE KLUCZYNSKI" }, { "text": "MR. JUSTICE GOLDENHERSH,\ndissenting:\nI dissent. The majority, although recognizing that deterrence of unconstitutional police conduct is only one of two reasons for the existence of the exclusionary rule, completely ignores the other, and in my opinion, the more important reason, \u201cthe imperative of judicial integrity\u201d (Elkins v. United States, 364 U.S. 206, 222, 4 L. Ed. 2d 1669, 1680, 80 S. Ct. 1437, 1447; Mapp v. Ohio, 367 U.S. 643, 659, 6 L. Ed. 2d 1081, 1092, 81 S. Ct. 1684, 1694). Unless the fourth amendment to the Federal Constitution and section 6 of article I of our State Constitution are to be reduced \u201cto a form of words\u201d (Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 64 L. Ed. 319, 321, 40 S. Ct. 182, 183) they must' be interpreted to mean that evidence seized in violation of their provisions is not only not to be used in a \u201ccriminal prosecution\u201d but \u201cthat it shall not be used at all.\u201d 251 U.S. 385, 392, 64 L. Ed. 319, 321, 40 S. Ct. 182,183.\nThe sovereign should never, under any circumstances, be permitted to make use of evidence obtained as the result of its own unlawful acts. The dangers inherent in the failure to adhere to that rule were stated far more eloquently than can I in Mr. Justice Brand\u00e9is\u2019 dissent in Olmstead v. United States, 277 U.S. 438, 485, 72 L. Ed. 944, 959-60, 48 S. Ct. 564, 575, wherein he said: .\n\u201cDecency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Govern- . ment becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means \u2014 to declare that the Government may commit crimes in order to secure the conviction \u00f3f a private criminal \u2014 would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.\u201d", "type": "dissent", "author": "MR. JUSTICE GOLDENHERSH," } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin and Dale W. Breeder, Assistant Public Defenders, and Robert B. Thompson, Jack L. Uretsky, Christine Bucko, and Charles Amato (law students), of counsel), for appellant.", "William J. Scott, Attorney General, of Springfield, and Bernard Carey, State\u2019s Attorney, of Chicago (James B. Zagel and Jayne A. Carr, Assistant Attorneys General, of Chicago, and Laurence J. Bolon and Mary Ellen Dienes, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 46890.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FREDDIE DOWERY, Appellant.\nOpinion filed November 25, 1975.\nCREBS, J., took no part.\nGOLDENHERSH, J., dissenting.\nJames J. Doherty, Public Defender, of Chicago (Ronald P. Alwin and Dale W. Breeder, Assistant Public Defenders, and Robert B. Thompson, Jack L. Uretsky, Christine Bucko, and Charles Amato (law students), of counsel), for appellant.\nWilliam J. Scott, Attorney General, of Springfield, and Bernard Carey, State\u2019s Attorney, of Chicago (James B. Zagel and Jayne A. Carr, Assistant Attorneys General, of Chicago, and Laurence J. Bolon and Mary Ellen Dienes, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0200-01", "first_page_order": 214, "last_page_order": 224 }