IL: GFE does not apply to seizure under a statute later held unconstitutional

Defendant was stopped and relieved of a handgun by the police and charged with it. Four years later, the state supreme court held that possession of a handgun alone, without criminal purpose, violated the Second Amendment. Defendant gets the benefit of that ruling. There was reasonable suspicion at the time of the stop, but not by the time of the trial. The state argues for a good faith exception, but the Illinois courts have never gone that far on a statute and rejected Krull. If the statute is unconstitutional, it is void ab initio, and the good faith exception should not apply. People v. Thomas, 2016 IL App (1st) 141040, 2016 Ill. App. LEXIS 884 (Dec. 23, 2016).

The officer’s mistaken belief that he had seen child pornography on defendant’s computer before applying for a warrant for it was not sufficiently culpable to require suppression under the good faith exception. United States v. Luke, 2016 U.S. Dist. LEXIS 172003 (E.D.Ky. July 12, 2016),* adopted, 2016 U.S. Dist. LEXIS 171320 (E.D. Ky. Dec. 9, 2016)*:

Law enforcement’s conduct in this case was not sufficiently deliberate or culpable to support suppression and justify the cost of excluding the evidence found on Defendant’s computer. Leon, Herring, and Davis clearly require this result. The focus is upon what conduct by law enforcement in seeking the January 17, 2013 warrant could meaningfully be deterred. But the mistake here was Officer Hudson’s conclusion that what he had seen established probable cause. He was lawfully in Defendant’s residence and searched it pursuant to Defendant’s consent. The observations he made were perfectly permissible. He seized the computer equipment without valid authorization, but took the laudable step of seeking a warrant to search that equipment. His assessment that probable cause existed to search for evidence of child pornography was, in this Court’s view, mistaken, but there is no evidence that he acted flagrantly, deliberately, or culpably in terms of what he knew, how he came to know it, what he concluded, or how the information was presented to the issuing judge. There was no misconduct by Hudson that requires deterrence. The defense contends he merely had a hunch, but there is no evidence that he acted solely based on that hunch in flagrant disregard of Defendant’s rights. Instead, he presented the information lawfully obtained to the issuing magistrate.

This entry was posted in Exclusionary rule, Good faith exception. Bookmark the permalink.

Comments are closed.