The Illinois Court of Appeals holds that the exclusionary rule does not apply absent police misconduct. It applies this holding to a case where there was no "stop," instead of simply finding there was no stop. Here, the defendant's car was already stopped on the side of the road, and the officer turned on his blue lights for safety reasons, a rule already well established to not be a stop. People v. McDonough, 2009 Ill. App. LEXIS 1018 (October 20, 2009):

Given that the Supreme Court began its discussion in Herring by accepting the concession of the parties that a fourth amendment violation had occurred in that case, we distill the Supreme Court's holding as supportive of the point this court made in Garriott 16 years ago: absent police misconduct, the exclusionary rule does not apply. The reason why is simple: if the justification for the exclusionary rule is solely to deter police misconduct (as the Supreme Court reaffirmed in Herring), then the necessary condition precedent for the exclusionary rule's application is police misconduct. Thus, absent police misconduct, the exclusionary rule does not apply because there is no misconduct to deter.

The trial court here deemed defendant to be "detained" solely as a result of the trooper's activating the overhead emergency lights on his police car. The court concluded that the trooper's doing so violated the fourth amendment because, when the trooper activated those overhead lights, he had no legitimate basis for the "detention" he thereby caused. Based upon Herring and Garriott, we disagree with this conclusion because the trooper's activation of his overhead emergency lights did not constitute police misconduct, even if the trial court were correct that this action constituted a violation of the fourth amendment.

C. No Police Misconduct Occurred in This Case

The rule that absent police misconduct, the exclusionary rule does not apply is dispositive in this case because we conclude that no police misconduct occurred here. We further conclude that the trooper's activating his emergency lights as he pulled behind a stopped vehicle on a busy four-lane highway not only did not constitute misconduct, it was the entirely prudent and appropriate thing for the trooper to do. Indeed, his failure to do so could very well be viewed as dangerous.

In this case, the trial court granted defendant's motion to suppress because it found that the trooper had seized defendant in violation of his fourth-amendment rights the moment the trooper activated his overhead emergency lights. By so finding, the court essentially declared that whenever a police officer approaches an already stopped vehicle and activates his overhead emergency lights in the absence of reasonable suspicion that criminal activity has or will occur, regardless of the other circumstances that may be present, the officer's action is unlawful and should be deterred by employing the exclusionary rule.

We disagree with the trial court. Its finding places a police officer in the unreasonable position of compromising not only his safety, but also the safety of any occupants of the stopped vehicle. Further, other motorists using the highway may be put at risk because of a police car parked on the highway shoulder without its emergency lights activated to warn of its presence.

. . .

In any event, we deem nothing of the trooper's activities remotely close to the police misconduct the Supreme Court discussed in Herring that would trigger suppression. For instance, nothing about the trooper's activation of his emergency lights represents "the flagrancy of police misconduct" that constitutes an important step in the calculus of applying the exclusionary rule. Herring, 555 U.S. at , 172 L. Ed. 2d at 506, 129 S. Ct. at 701. Nor do the trooper's actions constitute "systemic error or reckless disregard of constitutional requirements" (Herring, 555 U.S. at , 172 L. Ed. 2d at 509, 129 S. Ct. at 704), or the "culpability of the police," thereby suggesting "the potential of exclusion to deter wrongful police conduct" (Herring, 555 U.S. at , 172 L. Ed. 2d at 502, 129 S. Ct. at 698). In sum, the trooper did nothing improper in this case. Because no police misconduct is present, the exclusionary rule does not apply.

This case is an example of Fourth Amendment bias--the court does not like the Fourth Amendment, so it goes way beyond the requirements of the case to uphold the action of the police. The court could not just state there was no "stop" because that does not fit into its bias. Instead, it went for the exclusionary rule when that should not have even been the issue. This is Justice Frankfurter's Rabinowitz caution in action; United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (dissenting opinion):

It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U.S. 616 , in Weeks v. United States, 232 U.S. 383, in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , in Gouled v. United States, 255 U.S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper.