No. 2-14-0451 Opinion filed March 3, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellant, ) ) v. ) No. 13-CF-28 ) MARY C. BERNARD, ) Honorable ) Timothy J. McCann, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Jorgensen concurred in the judgment and opinion.

OPINION

¶1 The State appeals from an order of the circuit court of Kendall County granting the

amended motion of defendant, Mary C. Bernard, to quash her arrest and suppress evidence.

Because the evidence supporting her charged offense was not the fruit of the purportedly

unconstitutional police conduct, and therefore the exclusionary rule did not apply, we reverse

and remand.

¶2 I. BACKGROUND

¶3 The following facts were established at the hearing on defendant’s motion. At

approximately 2:30 a.m. on January 19, 2013, Officer Johnson and several other officers of the

Aurora police department were dispatched to a residence to investigate a report of a domestic

disturbance involving a suicidal individual. When Officer Johnson arrived, he was invited into

the home and spoke to the mother of Cody Sansalone, the young man causing the disturbance

and threatening to commit suicide.

¶4 Officer Johnson then spoke to Sansalone, who said that he wanted to kill himself by

ingesting pills. When Officer Johnson asked him where the pills were, Sansalone told him that

they were on a computer desk upstairs.

¶5 Officer Johnson then went up the stairs, saw a computer desk on a landing, but saw no

pills on the desk. About that time, Sansalone’s younger sister told Officer Johnson that

Sansalone and defendant were always bringing ecstasy 1 into the house. She also told Officer

Johnson that defendant had just taken a prescription pill bottle into the bathroom.

¶6 Officer Johnson and Sergeant Wiencek knocked several times on the bathroom door, but

defendant did not answer. When defendant finally opened the door, Officer Johnson saw her

standing over the toilet with a prescription pill bottle in her hand. When Officer Johnson asked

her what she was holding, she answered that it was her herpes medication. When he asked

whether he could look in the bottle, defendant refused to give him the bottle. He then grabbed

the bottle, saw her name on it, opened it, and observed pills of various colors. Based on his 25

years’ experience as a police officer and the information he had received from Sansalone’s sister,

he believed that the pills were ecstasy.

1 Ecstasy is a common name for 3,4-methylenedioxy-methamphetamine (also known as

MDMA), an illegal drug that acts as both a stimulant and a psychedelic. See http://www.

drugabuse.gov/publications/drugfacts/mdma-ecstasy-or-molly (last visited Feb. 10, 2015).

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¶7 After seeing the pills in the bottle, Officer Johnson arrested defendant for possession of

the pills. When he advised defendant that she was under arrest, she became irate, flailed her

arms, and resisted being handcuffed.

¶8 After Sergeant Wiencek had handcuffed defendant behind her back, Officer Johnson

placed her in the backseat of his squad car. Officer Johnson put the bottle holding the pills in a

cup holder next to the driver’s seat. As Officer Johnson sat in the squad car completing an arrest

form, defendant removed the handcuffs, grabbed the bottle, and swallowed all of the pills.

¶9 Defendant was indicted on one count of obstruction of justice, based on her having

swallowed the pills. See 720 ILCS 5/31-4(a) (West 2012). Defendant filed an amended motion

to quash her arrest and suppress evidence, essentially contending that, because the police conduct

in seizing and searching the pill bottle had violated her fourth-amendment rights, the evidence

related to her swallowing the pills, being the fruit of that police misconduct, must be suppressed.

The State responded that defendant lacked standing to challenge the legality of the police

conduct and that the plain-view doctrine justified the police conduct. Alternatively, the State

contended that, because the evidence of obstruction of justice was unrelated to the alleged police

misconduct, the exclusionary rule did not apply to that evidence. After the trial court granted

defendant’s motion and denied the State’s motion to reconsider, the State filed a certificate of

impairment (see Ill. S. Ct. R. 604(a)(1) (eff. Feb. 6, 2013)) and a timely notice of appeal.

¶ 10 II. ANALYSIS

¶ 11 When reviewing a trial court’s ruling on a motion to quash and suppress, we greatly defer

to the court’s factual findings and will reverse those findings only if they are against the manifest

weight of the evidence. People v. Close,

(2010). However, we review de

novo the ultimate decision to grant or deny the motion. Close,

.

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¶ 12 Under the exclusionary rule, courts are precluded from admitting evidence that is

gathered by the police in violation of the fourth amendment. People v. Sutherland,

(2006). The fruit-of-the-poisonous-tree doctrine is an outgrowth of the exclusionary

rule. People v. Henderson,

. Under that doctrine, a fourth-amendment

violation is deemed the poisonous tree, and any evidence obtained by exploiting that violation

will be suppressed as fruit of that tree. Henderson,

. The test for whether

evidence is fruit of the poisonous tree was best articulated in Wong Sun v. United States,

(1963). Henderson,

. In discussing the doctrine, the United

States Supreme Court identified the dispositive question as whether, granting the establishment

of the primary illegality, the objected-to evidence was obtained by exploiting that illegality or

instead by a means sufficiently distinguishable to be purged of the primary taint. Henderson,

(citing Wong Sun,

). Said another way, a court must

consider whether the chain of causation proceeding from the unconstitutional conduct became so

attenuated, or was interrupted by some intervening circumstance, as to remove the taint imposed

by the original illegality. Henderson,

(citing United States v. Crews,

(1980)).

¶ 13 Moreover, the Supreme Court has rejected a “but for” test, under which evidence would

be deemed inadmissible simply because it would not have been discovered but for the primary

illegality. Henderson,

(citing Wong Sun,

). Therefore,

evidence that comes to light through a chain of causation that began with an illegal search or

seizure is not necessarily inadmissible. Henderson,

.

¶ 14 The Illinois Supreme Court has recognized that there is no authority for extending the

exclusionary rule to evidence of conduct that arose in reaction to an illegal search or seizure.

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People v. Villarreal,

(1992). Therefore, a defendant who commits an

unlawful homicide, assault, or other offense in response to a fourth-amendment violation would

not be entitled to suppression of evidence of the subsequent crime. Villarreal,

.

The exclusionary rule does not apply to evidence of a defendant’s actions directed against the

police, regardless of the illegality of the police conduct. Villarreal,

. 2 To

countenance, through the use of the exclusionary rule, an unlawful version of self-help would

encourage unlawful and retaliatory conduct. Villarreal,

. Indeed, such a policy

would be fundamentally contrary to a civilized rule of law. Villarreal,

.

¶ 15 In our case, even if the police violated defendant’s fourth-amendment rights before she

swallowed the pills, an issue we need not decide, the evidence related to her swallowing the pills

should not have been excluded. That is so because that evidence was related to an offense

committed in response to the purported fourth-amendment violation. Defendant’s act of

swallowing the pills was directed against the police in that it interfered with their investigation of

potential criminal activity by defendant. As our supreme court has directed, the exclusionary

rule must not be used to countenance and encourage a defendant’s unlawful and retaliatory

response to perceived police misconduct. Villarreal,

. Application of the

exclusionary rule in this case would do exactly that. Thus, the trial court erred in applying the

exclusionary rule to the evidence related to defendant’s swallowing the pills.

¶ 16 Further, we note that the primary purpose underlying the exclusionary rule and its related

fruit-of-the-poisonous-tree doctrine, deterrence of police misconduct (see United States v.

2 This concept has been referred to by our appellate courts as the “distinct-crime

exception” to the fruit-of-the-poisonous-tree doctrine. See, e.g., People v. Brown,

(2003).

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Calandra,

(1974)), would not be served by excluding the evidence related to

defendant’s swallowing the pills. The police will not be deterred from unconstitutional conduct

by suppressing evidence that was not a product of that misconduct. See Hudson v. Michigan,

(2006) (value of deterrence depends upon the strength of the incentive to

violate the constitution). Here, because the purported police misconduct did not produce the

evidence related to defendant’s swallowing the allegedly illegally seized evidence, application of

the exclusionary rule to that evidence would not be an effective deterrent. 3

3 At oral argument, defense counsel suggested that Officer Johnson engaged in

misconduct that triggered the exclusionary rule when he placed defendant in the squad car with

the pills, thereby creating the opportunity for her to swallow them. Although we do not agree

that Officer Johnson engaged in any inappropriate conduct by placing a handcuffed defendant

into the backseat of the squad car and the pills in the front console next to him, it does not matter,

as that asserted misconduct was not the type governed by the exclusionary rule. Rather, the

exclusionary rule is designed to deter police misconduct of a constitutional magnitude. See

Sutherland,

(exclusionary rule is a judicially created remedy that prospectively

protects fourth-amendment rights by deterring future police misconduct); see also Mapp v. Ohio,

(1961) (exclusionary rule is a deterrent safeguard without which the fourth

amendment would be reduced to a form of words); Elkins v. United States,

(1960) (deterrent purpose of the exclusionary rule is to compel respect for a constitutional

guaranty in the only effective way available, by removing the incentive to disregard the

constitution). Even if Officer Johnson’s conduct in placing defendant and the pills in the squad

car was improper, it certainly did not implicate the constitution and thereby trigger application of

the exclusionary rule.

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¶ 17 Defendant contends that her swallowing the pills was not independent of the asserted

police illegality, because, without that illegality, there would have been no evidence for her to

swallow. That argument, however, urges a “but for” application of the fruit-of-the-poisonous-

tree doctrine, which, as discussed, has been rejected. See Henderson,

.

¶ 18 Based on the foregoing, we hold that the exclusionary rule did not apply to the evidence

related to the crime of obstruction of justice. Therefore, we reverse on that basis alone and do

not reach the parties’ other contentions.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we reverse the order of the circuit court of Kendall County

granting defendant’s amended motion to quash her arrest and suppress evidence, and we remand

the cause.

¶ 21 Reversed and remanded.

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