{ "id": 5534842, "name": "THE PEOPLE ex rel. THOMAS J. DIFANIS, State's Attorney for Champaign County, Plaintiff-Appellee, v. REX BOSTON (Impleaded), Defendant-Appellant", "name_abbreviation": "People ex rel. Difanis v. Boston", "decision_date": "1981-01-23", "docket_number": "No. 16405", "first_page": "962", "last_page": "971", "citations": [ { "type": "official", "cite": "92 Ill. App. 3d 962" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "377 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 701", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3350236 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0701-01" ] }, { "cite": "320 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 797", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507963 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0797-01" ] }, { "cite": "332 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621699 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0699-01" ] }, { "cite": "389 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "75 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990941 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/75/0423-01" ] }, { "cite": "396 N.E.2d 812", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 396", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490637 ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0396-01" ] }, { "cite": "378 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "406 N.Y.S.2d 714", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "44 N.Y.2d 511", "category": "reporters:state", "reporter": "N.Y.2d", "opinion_index": 0 }, { "cite": "622 F.2d 1093", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 478345 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f2d/622/1093-01" ] }, { "cite": "623 F.2d 281", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1277822 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/623/0281-01" ] }, { "cite": "588 F.2d 373", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 832090 ], "weight": 5, "pin_cites": [ { "page": "377" }, { "page": "380" }, { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/f2d/588/0373-01" ] }, { "cite": "342 U.S. 165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 640823 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/us/342/0165-01" ] }, { "cite": "411 U.S. 423", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9798 ], "weight": 12, "year": 1641, "pin_cites": [ { "page": "429" }, { "page": "371" }, { "page": "1641" }, { "page": "427-28, 432-33" }, { "page": "371, 374" }, { "page": "1640-41, 1643" }, { "page": "431-32" }, { "page": "373" }, { "page": "1643" } ], "opinion_index": 0, "case_paths": [ "/us/411/0423-01" ] }, { "cite": "425 U.S. 484", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179214 ], "weight": 15, "pin_cites": [ { "page": "490" }, { "page": "119" }, { "page": "1650" }, { "page": "493" }, { "page": "121" }, { "page": "1651-52" }, { "page": "497" }, { "page": "123" }, { "page": "1653-54" } ], "opinion_index": 0, "case_paths": [ "/us/425/0484-01" ] }, { "cite": "272 N.W.2d 35", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10686270 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nw2d/272/0035-01" ] }, { "cite": "392 N.E.2d 1333", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "76 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983063 ], "opinion_index": 1, "case_paths": [ "/ill-2d/76/0392-01" ] }, { "cite": "161 A.2d 69", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 1 }, { "cite": "32 N.J. 358", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 566715 ], "opinion_index": 1, "case_paths": [ "/nj/32/0358-01" ] }, { "cite": "22 N.E. 188", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1960, "opinion_index": 1 }, { "cite": "115 N.Y. 506", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 562825 ], "year": 1960, "opinion_index": 1, "case_paths": [ "/ny/115/0506-01" ] }, { "cite": "276 U.S. 413", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3902118 ], "weight": 6, "pin_cites": [ { "page": "425" }, { "page": "637" }, { "page": "376" } ], "opinion_index": 1, "case_paths": [ "/us/276/0413-01" ] }, { "cite": "277 U.S. 438", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3903035 ], "weight": 9, "pin_cites": [ { "page": "484" }, { "page": "959" }, { "page": "574" }, { "page": "484" }, { "page": "959" }, { "page": "574-75" }, { "page": "470" }, { "page": "953" }, { "page": "575" } ], "opinion_index": 1, "case_paths": [ "/us/277/0438-01" ] }, { "cite": "332 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 1 }, { "cite": "30 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621699 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ill-app-3d/30/0699-01" ] }, { "cite": "389 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 1 }, { "cite": "75 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2990941 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/ill-2d/75/0423-01" ] }, { "cite": "378 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "406 N.Y.S.2d 714", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 1 }, { "cite": "44 N.Y.2d 511", "category": "reporters:state", "reporter": "N.Y.2d", "opinion_index": 1 }, { "cite": "588 F.2d 373", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 832090 ], "opinion_index": 1, "case_paths": [ "/f2d/588/0373-01" ] } ], "analysis": { "cardinality": 1186, "char_count": 23592, "ocr_confidence": 0.906, "pagerank": { "raw": 1.5899562276597503e-07, "percentile": 0.6819191003027589 }, "sha256": "afef9626451dee14af41440eadede5013f9312748710f202444139bf88771cf0", "simhash": "1:b3861c945ed70420", "word_count": 3796 }, "last_updated": "2023-07-14T15:16:53.928123+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE ex rel. THOMAS J. DIFANIS, State\u2019s Attorney for Champaign County, Plaintiff-Appellee, v. REX BOSTON (Impleaded), Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE GREEN\ndelivered the opinion of the court:\nThis case concerns a proceeding brought on the relation of the State\u2019s Attorney of Champaign County against defendant, Rex Boston, pursuant to the provisions of \u201cAn Act regarding places used for purposes of lewdness, assignation, or prostitution, to declare the same to be public nuisances, and to provide for the more effectual suppression thereof\u201d (Ill. Rev. Stat. 1977, ch. lOOJ\u00ed, par. 1 etseq.). Defendant appeals from an order of the circuit court of Champaign County entered on April 3, 1980, enjoining him from (1) maintaining a nuisance, specifically, a place of prostitution at 612 North Walnut St., Champaign, where a place of business known as \u201cThe Spot\u201d was located, (2) using the above property for any purpose for one year, and (3) maintaining or permitting prostitution on any premises within his control in the State of Illinois. He asserts that the court erred in (1) denying his in limine motion requesting suppression of certain evidence, (2) failing to appoint a special prosecutor, (3) ordering an injunction when legal remedies would have been adequate, and (4) enjoining too broad a scope of defendant\u2019s activities.\nThe heart of the case concerns the ruling denying defendant\u2019s motion in limine. It asked for an order prohibiting plaintiff, his agents, and his witnesses from testifying or referring to any illegal activities engaged in by plaintiff, his agents and his recruits. A showing was made at the hearing that in the course of an investigation, the State\u2019s Attorney or members of the police department of the City of Champaign had recruited three males to patronize prostitutes on the premises of \u201cThe Spot.\u201d Two recruits subsequently engaged in sexual intercourse with female employees of \u201cThe Spot\u201d on three or four occasions and with one encounter by one employee including the performance upon him of an act of fellatio by the female. The third recruit employed a female employee to perform a masturbatory massage and fellatio upon him on one occasion. The money used to obtain the service of these females was furnished by the aforesaid law enforcement agencies.\nDefendant maintains that the conduct of the State\u2019s Attorney in recruiting and directing the agents actually to engage in the described illicit acts with his employees was so outrageous as to constitute a violation of his fundamental right to due process. This argument appears to be novel in this State in two respects: First, we have not found any Illinois cases recognizing a valid defense wherein due process is violated by outrageous governmental conduct not violative of any other specific constitutionally guaranteed right; second, in cases from other jurisdictions where the defense was explicitly or implicitly recognized, the remedy indicated was not the exclusion of evidence so obtained but the barring of the action.\nDefendant acknowledges that the defense of entrapment is not available to him in the present case and asserts that he is not urging the defense of entrapment. Rather, defendant argues that in Hampton v. United States (1976), 425 U.S. 484, 48 L. Ed. 2d. 113, 96 S. Ct. 1646, although the majority of justices rejected the \u201cobjective (governmental conduct) test\u201d of entrapment while reaffirming the \u201csubjective (predisposition) test\u201d as the only valid test of entrapment, five justices failed to foreclose the possibility of a fundamental fairness defense. Three years earlier a Supreme Court majority opinion first acknowledged the potential validity of a fundamental fairness defense.\nIn United States v. Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637, the court, while reaffirming the principle that the entrapment defense \u201cfocus [es] on the intent or predisposition of the defendant to commit the crime\u201d (411 U.S. 423, 429, 36 L. Ed. 2d 366,371,93 S. Ct. 1637, 1641), distinguished this nonconstitutional defense of entrapment from the constitutional due process defense theory based on outrageous governmental conduct. (411 U.S. 423, 427-28, 432-33, 36 L. Ed. 2d 366, 371, 374, 93 S. Ct. 1637, 1640-41, 1643.) The court concluded in Russell by acknowledging the potential validity of the due process theory, stating:\n\u201cWhile we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165 (1952), the instant case is distinctly not of that breed \u00b0 The law enforcement conduct here stops far short of violating that \u2018fundamental fairness, shocking to the universal sense of justice,\u2019 mandated by the Due Process Clause of the Fifth Amendment.\u201d 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 373, 93 S. Ct. 1637,1643.\nIn Hampton, the defendant relied on the quoted language from Russell, acknowledging his case did not present a basis for the entrapment defense. The plurality opinion rejected defendant\u2019s argument saying:\n\u201cThe limitations of the Due Process Clause of the Fifth Amendment comes into play only when the Government activity in question violates some protected right of the defendant.\u201d (425 U.S. 484, 490, 48 L. Ed. 2d 113,119, 96 S. Ct. 1646,1650.)\nTwo justices, however, concurred in the result but were \u201cunwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles.\u201d (425 U.S. 484,493,48 L. Ed. 2d 113, 121, 96 S. Ct. 1646,1651-52.) Justice Powell\u2019s concurrence stated:\n\u201c[T]he cases, if any, in which proof of predisposition is not dis-positive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it would bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities and dealing effectively with an expanding narcotics traffic, * * *. Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity.\u201d 425 U.S. 484, 495-96 n.7, 48 L. Ed. 2d 113,122 n.7, 96 S. Ct. 1646, 1653 n.7.\nThe three dissenting justices in Hampton felt that the defense of entrapment itself should encompass improper use of governmental power notwithstanding predisposition. But the dissent also expressed the view that Russell did not foreclose a bar to conviction based on due process principles \u201cwhere the conduct of law enforcement authorities is sufficiently offensive \u2022 425 U.S. 484,497,48 L. Ed. 2d 113,123, 96 S. Ct. 1646,1653-54.\nThe due process defense of outrageous police conduct was elevated from theory to reality in United States v. Twigg (3d Cir. 1978), 588 F.2d 373. That court reversed convictions of two defendants because \u201cthe nature and extent of police involvement * \u00b0 * was so overreaching as to bar prosecution of the defendants as a matter of due process of law.\u201d 588 F.2d 373, 377.\nIn Ttvigg, a government informer suggested the establishment of a laboratory to manufacture \u201cspeed\u201d to defendant Neville. Neville undertook the primary responsibility for raising capital and arranging for distribution of the drug, while a government agent undertook the acquisition of necessary equipment, raw materials, including an essential chemical which was the most difficult to obtain, and a production site. Defendant Twigg then entered the operation, apparently to repay a debt to defendant Neville. Twigg accompanied the government agent on several trips to get chemicals under arrangements made by the Drug Enforcement Agency. The government agent was completely in charge of the laboratory. Neville was arrested when leaving the laboratory with some of the \u201cspeed.\u201d Twigg was arrested at the lab. The court reversed convictions of both defendants because the governmental intervention in the criminal activities of the case reached \u201c \u2018a demonstrable level of outrageousness.\u2019 \u201d 588 F.2d 373, 380.\nIn a footnote, the Ttvigg court stated:\n\u201cWe are adhering to Justice Powell\u2019s reasoning [in Hampton] that in evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it.\u201d (588 F.2d 373, 378 n.6.)\nNotwithstanding these facts and the analysis, one judge dissented, not because the due process defense would not sometimes be valid, but because he did \u201cnot believe this situation presents the intolerable set of facts necessary to warrant resort to the due process clause * * V\u2019 588 F.2d 373, 383.\nSince Ttvigg, other cases have acknowledged the validity of the due process defense. See, e.g., United States v. Bocra (3d Cir. 1980), 623 F.2d 281; United States v. Nunez-Rios (2d Cir. 1980), 622 F.2d 1093. See also People v. Isaacson (1978), 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78.\nThe State has argued that this due process defense is merely the \u201cobjective\u201d entrapment theory under another name and that our supreme court has conclusively rejected this theory in People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812. We believe that the distinction between the entrapment and due process defenses as recognized by the United States Supreme Court in United States v. Russell is valid and that Cross should not be interpreted as a bar to the due process defense.\nThe instant proceeding is not a criminal prosecution but one in equity for injunctive relief. Regardless of the type of proceedings, however, we do not consider the conduct of the government in this case to have reached the \u201cdemonstrable level of outrageousness\u201d which would justify either a bar to the action or exclusion of the evidence obtained as a result of the governmental conduct in question. In City of Chicago v. Cecola (1979), 75 Ill. 2d 423, 389 N.E.2d 526, City of Chicago v. Geraci (1975), 30 Ill. App. 3d 699, 332 N.E.2d 487, and Toushin v. City of Chicago (1974), 23 Ill. App. 3d 797, 320 N.E.2d 202, trial court orders granting injunctive relief were upheld in the face of similar conduct by police investigators which, although not raised as an issue, was recited in the opinions.\nThe theory of the outrageousness defense focuses upon the government\u2019s conduct rather than upon the defendant\u2019s predisposition. (Russell.) Here, unlike in Twigg, the law enforcement officers did not concoct the scheme whereby the unlawful acts were performed. While the evil sought to be prevented was not as serious as that of trafficking in narcotics, we cannot say with certainty that consummation of the sex act by the investigators was unnecessary to obtain the desired evidence. We also note that the Hampton plurality deemed the essence of the due process defense of outrageousness to be the violation of a \u201cprotected right of the defendant.\u201d The concurring opinion did not refute this assertion but only refuted the plurality\u2019s conclusion that a defendant\u2019s predisposition to commit the offense always precluded the outrageousness defense. No contention is made here that an intrusion was made upon defendant\u2019s rights. Rather, the contention of the defendant concerns the propriety of the example set by the governmental conduct. We hold that ground to have been insufficient under the circumstances to have required the granting of the motion in limine or the later exclusion of the evidence.\nDefendant\u2019s next contention is that a special prosecutor should have been appointed below pursuant to section 6 of \u201cAn Act in regard to attorneys general and state\u2019s attorneys.\u201d (Ill. Rev. Stat. 1979, ch. 14, par. 6.) The propriety of appointing a special prosecutor was not raised by defendant until after trial on the merits was had and the judgment order and order of abatement were entered. At that time, defendant filed a motion to vacate in which he contended a special prosecutor should have been appointed. Although we see nothing in the issues presented which would deter the State\u2019s Attorney from unimpeded prosecution of the case before us, we need not rule directly upon defendant\u2019s contention because the issue was waived by defendant\u2019s failure to raise it timely. See In re Petition of McNulty (1978), 60 Ill. App. 3d 701, 377 N.E.2d 191.\nDefendant\u2019s argument that injunction was an inappropriate remedy is without merit. In Cecola the supreme court rejected the argument, holding that the remedy of a criminal proceeding was inadequate there where the operator of the massage parlor furnishing masturbatory massages would only be subject to a fine. That court noted further that a common law remedy of injunction to abate the keeping of a house of prostitution existed. Furthermore, unlike in cases cited by defendant, the instant action was brought pursuant to legislation specifically authorizing injunctive relief to abate the use of buildings for \u201clewdness, assignation, or prostitution\u201d (Ill. Rev. Stat. 1979, ch. 100)2, par. 1). Although prostitution is prohibited by section 11 \u2014 14 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11 \u2014 14), section 1 \u2014 4 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1 \u2014 4) provides that the Code does not \u201cbar * * * any \u201d other remedy authorized by law to be * * * enforced in a civil action\u201d for conduct punishable by the Code.\nFinally, defendant urges that the court below did not have jurisdiction to enjoin defendant\u2019s activities statewide. The writ of permanent injunction included a perpetual restraint on defendant from maintaining or permitting prostitution on any premises within his control within the State of Illinois. Defendant contends the court had jurisdiction to enjoin his activities only in Champaign County. The legislation under which the action was brought authorized the court to \u201cperpetually\u201d restrain one maintaining a nuisance from \u201cmaintaining any such nuisance within the jurisdiction of the court.\u201d (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 100)2, par. 5.) Circuit courts have power to award \u201cthroughout the state * * * writs of injunction * * * that may be necessary to the due execution of the powers with which they are or may be vested\u201d (Ill. Rev. Stat. 1979, ch. 37, par. 72.26). The scope of the injunction was not beyond the power of the court.\nFor the reasons stated, we affirm.\nAffirmed.\nWEBBER, J., concurs.", "type": "majority", "author": "Mr. JUSTICE GREEN" }, { "text": "Mr. JUSTICE CRAVEN,\ndissenting:\nWithout delving too deeply into the debate between deontological and teleological ethics or the relationship between morality and positive law, I dissent from the majority\u2019s decision. My remarks are directed at the disposition of the defendant\u2019s first claim of error, concerning the government\u2019s conduct in its investigation of the nightclub.\nThe defendant has correctly acknowledged that entrapment is not at issue here and argues instead that the government\u2019s participation in the acts of prostitution reached such a level of outrageousness that he has been denied due process.\nAs the State sought and obtained an injunction, the questions in this case are governed by equitable principles. A party seeking equitable relief must come into court with clean hands; the government\u2019s participation in illegal activities has tainted its position. Accepting the State\u2019s evidence as true, the three recruits, who were instructed to obtain evidence of prostitution at The Spot by engaging in sexual activity with employees, were guilty of patronizing prostitutes (Ill. Rev. Stat. 1979, ch. 38, par. 11 \u2014 18). By knowingly directing the recruits to The Spot for that purpose, the persons in charge of the investigation were guilty of soliciting prostitution (Ill. Rev. Stat. 1979, ch. 38, par. 11 \u2014 15) and official misconduct (Ill. Rev. Stat. 1979, ch. 38, par. 33 \u2014 3(b)). The unclean hands principle is as applicable to the government as it is to private parties. Olmstead v. United States (1928), 277 U.S. 438,484,72 L. Ed. 944,959, 48 S. Ct. 564, 574 (Brand\u00e9is, J., dissenting).\nNo statutory authorization exists to absolve the government and its agents of this misconduct. Unlike the Department of Law Enforcement, which is authorized by statute to purchase controlled substances and cannabis in gathering evidence of drug use (Ill. Rev. Stat. 1979, ch. 127, par. 55a(15), 55j), the State\u2019s attorney and the local police departments can point to no similar provision permitting the type of investigatory activity used in this case. The existence of the statute permitting drug purchases may reflect the judgments that drugs present a greater danger to society than other forms of criminality or that drug trafficking is too difficult to detect without the use of undercover purchases. Neither reason applies to prostitution, however.\nThe State could have obtained its evidence without directing its agents to have sex with the alleged prostitutes. The normal course of feigning interest and stopping short of sex yields evidence sufficient to enjoin the nuisance or to convict. City of Chicago v. Cecola (1979), 75 Ill. 2d 423, 389 N.E.2d 526; City of Chicago v. Geraci (1975), 30 Ill. App. 3d 699, 332 N.E.2d 487.\nThe question posed by the evidence and tactics in this case is whether the nature of the nuisance excuses the investigatory methods used, or more simply, whether the end justifies the means. We must keep in mind what this case does not involve: National security was not in danger of being breached; lives were not threatened; the future of western civilization was not at stake. Those dangers are the usual excuses for order and safety at any cost, but the goal here was neither so important nor so worthy. The principles of equity should not be treated cavalierly; nothing in this case convinces me that the government\u2019s misconduct should be ignored or overlooked or excused. The State comes into court with unclean hands and the requested relief should have been denied. I would exclude the evidence when the taint is slight and bar the action when the taint pervades the entire suit, as it does here.\nThe antecedents for my argument are found in earlier cases and more specifically in earlier dissents. Participation by the government in illegal activities is not new; the reasons against countenancing it in a court are still valid today. Refusing to permit the government to use criminal means for gathering evidence helps to maintain respect for the law, engenders public trust in the judicial system, and keeps the courts untainted. (Olmstead, 277 U.S. 438, 484, 72 L. Ed. 944, 959, 48 S. Ct. 564, 574-75 (Brand\u00e9is, J., dissenting).) In Casey v. United States (1928), 276 U.S. 413, 72 L. Ed. 632, 48 S. Ct. 373, where the government had instigated the crime for which the defendant was being prosecuted, Brand\u00e9is said, again in dissent:\n\u201cThis prosecution should be stopped, not because some right of Casey\u2019s has been denied, but in order to protect the government. To protect it from illegal conduct of its officers. To preserve the purity of its courts.\u201d (276 U.S. 413,425, 72 L. Ed. 632, 637,48 S. Ct. 373, 376.)\nPermitting the State to bring actions based on evidence obtained through criminal acts ultimately demeans the judicial system. The courts become partners in the illegality. The immediate result may appear innocuous but the infection remains; in the long run illegal and evil means will attenuate the principle that we are governed by laws rather than persons. It is true that in the long run we are all dead, yet future generations will have to live with the precedents we create. I am afraid that bad law, like bad money, drives out good. I foresee a decline in the public\u2019s trust in its judicial system, for by approving illegal police tactics we invite disrespect and cynicism:\n\u201cA nation devoted to the proposition of equality under law and the sanctity of individual freedom should not permit the government it has entrusted with the task of protecting those principles to flout them in the name of \u2018law enforcement.\u2019 The laws being enforced are meaningless if those bound to enforce them place themselves above the law.\u201d (Cohn, The Need for an Objective Approach to Prosecutorial Misconduct, 46 Brooklyn L. Rev. 249, 267 (1980).)\nPreserving the integrity of the courts is not such an idle or meaningless task that we may safely ignore the abuses disclosed by the record in this case. If judicial integrity is to be meaningful, we must do more than accord that principle vacant obeisance. Keeping the courts clean is a daily job; we must not relegate it to holiday observance. Justice Holmes viewed the problem as a choice between two conflicting goals, punishing criminals and preventing governmental lawlessness:\n\u201cWe have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.\u201d Olmstead,, 277 U.S. 438,470,72 L. Ed. 944,953,48 S. Ct. 564, 575 (Holmes, J., dissenting).\nThis need to preserve the courts from seediness is not just a banner waved by dissenters; the role of policy in reaching decisions and the precise policy involved here are both continuing forces in law. First, we see policy at work in decisions as diverse as Riggs v. Palmer (1889), 115 N.Y. 506, 22 N.E. 188, and Henningsen v. Bloomfield Motors, Inc. (1960), 32 N.J. 358, 161 A.2d 69. Riggs involved a murderer\u2019s claim to the victim\u2019s estate; the murderer was an heir. Although positive law gave the murderer the estate, the court defeated the normal rule with the principle that one should not profit from wrongdoing. In Henningsen, the court applied considerations of public policy to pierce a car manufacturer\u2019s limitation of warranty. Dworkin cites the two cases to distinguish rules from principles and to illustrate the different ways they operate. (R. Dworkin, Taking Rights Seriously 22-28 (1977).) Applicable rules dictate a particular result; principles do not dictate results but may be used to justify departures from the rules. See also Barlow, Entrapment and the Common Law: Is There a Place for the American Doctrine of Entrapment? 41 Modern L. Rev. 266 (1978), for a discussion of Dworkin and the jurisprudential basis for the objective theory of entrapment.\nIn re Friedman (1979), 76 Ill. 2d 392, 392 N.E.2d 1333, was a disciplinary action against a prosecutor who had directed policemen to accept bribes and to perjure themselves in a scheme designed to ferret out unscrupulous attorneys. Although the six judges deciding the case split three ways, four of the six concluded that Friedman\u2019s tactics had stained the courts and were not excused on the grounds that the end justified the means.\nThe recent rise of the due process defense also reflects displeasure with government-sanctioned lawlessness, for the government\u2019s conduct is the controlling aspect in determining whether that defense applies. United States v. Twigg (3d Cir. 1978), 588 F.2d 373; State v. Morris (Minn. 1978), 272 N.W.2d 35; People v. Isaacson (1978), 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78.\nIn its zeal to enjoin a nuisance, the majority overlooks a fundamental policy of our legal system. I must dissent from this shortsightedness.", "type": "dissent", "author": "Mr. JUSTICE CRAVEN," } ], "attorneys": [ "Robert J. Waaler, of Champaign, for appellant.", "Thomas J. Difanis, State\u2019s Attorney, of Urbana (Patricia A. Crowley, Assistant State\u2019s Attorney, of counsel), for appellee." ], "corrections": "", "head_matter": "THE PEOPLE ex rel. THOMAS J. DIFANIS, State\u2019s Attorney for Champaign County, Plaintiff-Appellee, v. REX BOSTON (Impleaded), Defendant-Appellant.\nFourth District\nNo. 16405\nOpinion filed January 23, 1981.\n\u2014 Rehearingdenied February 27,1981.\nCRAVEN, J., dissenting.\nRobert J. Waaler, of Champaign, for appellant.\nThomas J. Difanis, State\u2019s Attorney, of Urbana (Patricia A. Crowley, Assistant State\u2019s Attorney, of counsel), for appellee." }, "file_name": "0962-01", "first_page_order": 984, "last_page_order": 993 }