May 1991 Will County Grand Jury, In re

• Decision Date: 15 October 1992
• Docket Number: No. 72421,72421
• Citation: 604 N.E.2d 929,152 Ill.2d 381,178 Ill.Dec. 406
• Parties: , 178 Ill.Dec. 406, 61 USLW 2298 In re MAY 1991 WILL COUNTY GRAND JURY (The People of the State of Illinois, Appellee and Cross-Appellant, v. Tony Marquez et al., Appellants and Cross-Appellees).
• Court: Illinois Supreme Court

Page 929

604 N.E.2d 929

152 Ill.2d 381, 178 Ill.Dec. 406, 61

USLW 2298

In re MAY 1991 WILL COUNTY GRAND JURY (The People of the State of Illinois, Appellee and Cross-Appellant v. Tony Marquez et al., Appellants and Cross-Appellees).

No. 72421.

Supreme Court of Illinois.

Oct. 15, 1992.

[152 Ill.2d 384] [178 Ill.Dec. 408] Joseph C. Polito, Joliet, for appellee Tony Marquez.

Gerald G. Kielian, Joliet, for appellant and cross-appellee John Romo.

Roland Burris, Atty. Gen., Springfield, and Edward A. Burmilla, Jr., State's Atty., Joliet, (Norbert J. Goetten, John X. Breslin and Gary F. Gnidovec, of the Office of the State's Attys. Appellate Prosecutor, Ottawa, of counsel), for the People.

Justice THOMAS J. MORAN delivered the opinion of the court:

A Will County grand jury subpoenaed the appellants, Tony Marquez and John Romo. The subpoenas required each man to appear in a lineup and to submit a blood standard and head and pubic hair samples to the grand jury. In addition, Marquez was ordered to submit a complete set of fingerprints and palm prints. No charges had been filed against either man. Appellants filed motions to quash the subpoenas. Following a hearing, the circuit court of Will County quashed the portions of the subpoenas which required the appellants to submit blood standards and hair pullings. The court ruled that those items are protected by the fourth amendment and are therefore beyond the scope of the grand jury's power. However, the court upheld the other portions of the subpoenas, finding that "fingerprints, palm prints, in-person lineups, head hair clippings and combings, and pubic hair clippings and combings are not subject to 4th Amendment protection, in that these items are exposed to the public." Marquez and Romo appealed the trial court's ruling. The appellate court affirmed those portions of the order which required the appellants to appear in an inperson lineup and to provide fingerprints and palm prints as well as head hair combings and clippings; the court reversed that portion of the trial court's order which required the appellants to provide pubic hair combings and clippings (216 Ill.App.3d 1033, 159 Ill.Dec. 853, 576 N.E.2d 522). One justice dissented from the portion of the decision which found that the taking of head hair samples comes within the public exposure exception.

Marquez and Romo appealed that portion of the judgment requiring them to appear in a lineup and to submit to fingerprinting and the taking of hair samples. The State cross-appealed from the portion of the judgment which reversed the circuit court's order requiring that pubic hair samples be submitted. We granted Marquez and Romo's petition for leave to appeal (134 Ill.2d R. 315).

The issues presented for review are (1) whether the relevant statute and the Illinois Constitution impose limitations upon the grand jury's power to gather physical evidence through the subpoenaing of witnesses; (2) whether the appellate court erred in finding that head hair combings and clippings are not subject to constitutional protections; and (3) whether the appellate court erred in concluding that probable cause was needed before the grand jury could subpoena pubic hair samples from the appellants.

CONSTITUTIONAL AND STATUTORY LIMITATIONS

Appellants contend that section 112-4 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1989, ch. 38, par. 112-4) and the Illinois Constitution impose limitations upon the grand jury in the gathering of evidence. In 1965, subsection (a) of section 112-4 set forth:

"The Grand Jury shall hear all evidence presented by the State's Attorney." (Ill.Rev.Stat.1965, ch. 38, par. 112-4(a).)

Section 112-4 was amended in 1975, at which time an additional subsection was incorporated as section 112-4(b). Subsection (b) provided in pertinent part:

"The Grand Jury has the right to subpoena and question any person against whom the State's Attorney is seeking a Bill of Indictment." (Ill.Rev.Stat.1975, ch. 38, par. 112-4(b).)

Finally, in 1980, section 112-4 was amended to its present form, which expands subsection (b) in relevant part as follows:

"The Grand Jury has the right to subpoena and question any person against whom the State's Attorney is seeking a Bill of Indictment, or any other person, and to obtain and examine any documents or transcripts relevant to the matter being prosecuted by the State's Attorney." (Emphasis added.) Ill.Rev.Stat.1981, ch. 38, par. 112-4(b).

Appellants argue that, in amending section 112-4 in 1980, the legislature limited the grand jury to those subpoena powers specifically set out in subsection (b), that is, to the subpoenaing of witnesses to testify and to provide documents. Thus, according to appellants, the grand jury may not subpoena other evidence, such as hair samples, fingerprints, and in-person appearances in lineups.

Generally, as appellants point out, the expression of one thing in an enactment excludes all others, even where there are no negative words of prohibition. (City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill.2d 609, 612, 162 N.E.2d 345.) However, that principle is not a rule of law; it is merely a rule of statutory construction used by courts in arriving at the intention of the legislature. Dick v. Roberts (1956), 8 Ill.2d 215, 219, 133 N.E.2d 305; see also Landis, A Note on Statutory Interpretation, 43 Harv.L.Rev. 886 (1930), reprinted in 2A N. Singer, Sutherland on Statutory Construction 507 (5th ed. 1992).

The State argues that the legislature intended to give broad investigative powers to the grand jury. According to the State, section 112-4(b) has always empowered the grand jury to subpoena evidence from any person. The State's position is supported by case law. Prior to the 1980 amendment to section 112-4 which specifically granted the grand jury authority to issue subpoenas duces tecum, this court was asked repeatedly to examine the validity of various grand jury subpoenas issued to obtain documents. (See, e.g., People v. Lurie (1968), 39 Ill.2d 331, 235 N.E.2d 637; People v. Allen (1951), 410 Ill. 508, 103 N.E.2d 92; People v. Reynolds (1932), 350 Ill. 11, 182 N.E. 754.) In none of these cases did the court question the subpoena power of the grand jury. Instead, the court restricted its inquiry to whether the particular subpoenas were relevant, material or overbroad.

Before the legislature amended section 112-4 in 1980, this court also recognized the right of the grand jury to subpoena handwriting exemplars. (People ex rel. Hanrahan v. Power (1973), 54 Ill.2d 154, 295 N.E.2d 472.) The legislature did not subsequently enact legislation that would clearly preclude the grand jury from issuing such subpoenas.

A statute should not be construed to effect a change in the settled law of the State unless its terms clearly require such a construction. (People v. Bernette (1964), 30 Ill.2d 359, 374, 197 N.E.2d 436.) The 1980 amendment to section 112-4 simply codified what Illinois courts had previously recognized in their decisions regarding grand jury subpoenas for documents. We do not believe that section 112-4, by its terms, excludes the right of the grand jury to demand physical evidence from witnesses, a right which this court had previously ratified in Power.

It is presumed that the General Assembly knows how courts have interpreted a particular statute. (Zimmerman Brush Co. v. Fair Employment Practices Comm'n (1980), 82 Ill.2d 99, 104, 44 Ill.Dec. 308, 411 N.E.2d 277.) Subsequent to the 1980 amendment to section 112-4, at least one Illinois decision has supported the issuance of subpoenas for fingerprints. (In re Grand Jury Investigation of Swan (1981), 92 Ill.App.3d 856, 48 Ill.Dec. 70, 415 N.E.2d 1354.) We believe that, in failing to place specific limitations upon the subpoena power of the grand jury, and in subsequently failing to amend section 112-4, the legislature intended to confirm those powers of the grand jury recognized under the common law.

Grand jury investigations must be given the broadest scope possible, consistent with constitutional limitations. (People v. Dorr (1970), 47 Ill.2d 458, 462, 265 N.E.2d 601.) It is in the public's interest to maintain the breadth of the grand jury's power so that it may ferret out criminal activities. (People v. Florendo (1983), 95 Ill.2d 155, 158, 69 Ill.Dec. 65, 447 N.E.2d 282.) We conclude that section 112-4, in confirming the grand jury's power to subpoena any person, also gives the grand jury the right to demand that the person subpoenaed provide evidence within the limitations imposed by constitutional guarantees of individual rights.

The fourth amendment of the United States Constitution, applied to the States through the fourteenth amendment, provides in relevant part:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *." (U.S. Const., amend. IV.)

The United States Supreme Court has applied a fourth amendment analysis to a number of situations in which physical evidence was demanded from citizens without a warrant. In Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the Court found that the involuntary taking of blood from an individual whom there was probable cause to suspect of drunken driving was both a seizure and a search within the meaning of the fourth amendment. However, the Court held that, due to exigent circumstances, such a warrantless invasion of the body was reasonable under the facts of the case.

In United States v. Dionisio (1973), 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, the Court held that a grand jury subpoena of voice exemplars was not unreasonable under the fourth and fourteenth amendments. The Court's conclusion was premised on the proposition that a person has no expectation of privacy in those of his physical characteristics which are commonly exposed to the public. Thus, ...