People v. Burns , 50 N.E.3d 610 ( 2016 )

2016 IL 118973
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118973)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TARON R.
BURNS, Appellee.
Opinion filed March 24, 2016.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Freeman, Burke, and Theis concurred in the judgment and opinion.
Chief Justice Garman specially concurred, with opinion.
Justice Thomas dissented, with opinion, joined by Justice Karmeier.
OPINION
¶1 The circuit court of Champaign County determined that the warrantless use of a
drug-detection dog at 3:20 a.m. at defendant’s apartment door, located within a
locked apartment building, violated defendant’s rights under the fourth amendment
to the United States Constitution. U.S. Const., amend. IV. The appellate court
affirmed. 2015 IL App (4th) 140006. We now affirm.
¶2 BACKGROUND
¶3 Defendant, Taron R. Burns, lives in unit No. 10 of a three-story apartment
building located at 409 W. Elm, Urbana, Illinois. The apartment building contains
twelve units and is secured by two locked entrances located on the east and west
sides of the building. The apartment building common areas are not accessible to
the public. Defendant lives on the third floor of the apartment building. Her floor
consists of a small landing with two apartments, unit Nos. 9 and 10, and a storage
closet. The apartment doors to unit Nos. 9 and 10 are located directly across from
one another, and the storage room door faces the stairwell.
¶4 On November 29, 2012, the Urbana police department’s Crimestoppers hotline
received an anonymous tip that defendant was selling marijuana. The tipster
indicated that defendant sold approximately two pounds of marijuana a week and
received shipments of marijuana from her brother (name unknown) in California.
According to the tipster, defendant received a shipment of two pounds of marijuana
on November 21, 2012. The tipster also indicated that defendant sold ecstasy to the
tipster’s girlfriend.
¶5 Investigating the tip, Urbana police detective Matthew Mecum discovered that
in October 2008, defendant was issued a notice to appear from the city of Urbana
for possession of marijuana and drug paraphernalia. Defendant was also arrested in
2003, for possession of marijuana in a neighboring town, Villa Grove, Illinois.
Detective Mecum also observed “pictures containing images for the legalization of
marijuana,” “a picture containing actual marijuana,” and “a picture containing large
amounts of U.S. currency” on defendant’s personal social media page.
¶6 Sometime after midnight on January 10, 2013, Detective Mecum went to
defendant’s apartment building to “confirm her address.” Detective Mecum wore
jeans and a winter jacket, not displaying any law enforcement indicia. Detective
Mecum’s badge and firearm were not visible. Detective Mecum had visited the
apartment building several times and always found the entrance doors locked.
According to Detective Mecum, he knocked on the door and an unidentified tenant
let him in the building. While walking through the apartment building, Detective
Mecum observed a package addressed to defendant with a shipping label
identifying the sender as “Ben Jones in Oakland, California.” Detective Mecum did
not indicate where in the building he observed the package or the dimensions of the
package.
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¶7 At approximately 3:20 a.m., Officer Michael Cervantes entered defendant’s
apartment building, without a warrant, with his drug-detection dog. The dog is
trained in the detection of cocaine, marijuana, methamphetamine, and heroin.
Officer Cervantes was admitted into the building by Sergeant Loschen. Officer
Cervantes did not know how Sergeant Loschen obtained access to the apartment
building. Officer Cervantes took his drug-detection dog to the third floor and the
dog alerted to the presence of narcotics at defendant’s apartment door. The affidavit
for a search warrant in this case states that as Officer Cervantes and his dog were
exiting the apartment building, Officer Cervantes used his drug-detection dog “to
conduct an open air sweep of the doors to two apartments located on the west side
of the first floor of the building.” Officer Cervantes testified during the hearing on
defendant’s motion to suppress that using his drug-detection dog, he “started on the
third floor, swept Number 9, the storage unit in the middle between 9 and 10, swept
10, proceeded to the alert that my canine detected an odor of illegal drugs, and then
on the way out I swept 2 more apartment doors on the first floor on the west side.”
Officer Cervantes did not explain why he swept these other apartments’ doors for
drugs.
¶8 Later that same day, Detective Mecum applied for a search warrant for
defendant’s apartment. The complaint and affidavit for search warrant indicated
that on November 29, 2012, the Urbana police department received a
Crimestoppers tip that defendant was receiving shipments of marijuana from her
brother (name unknown) in California; that defendant received a shipment on
November 21, 2012; that defendant sold ecstasy to the tipster’s girlfriend; that
defendant sells approximately two pounds of marijuana a week; and that defendant
has a personal social media page showing United States currency. The complaint
and affidavit for search warrant does not indicate that the tipster provided
defendant’s address.
¶9 The complaint and affidavit for search warrant also indicated that in October
2008, defendant was issued a notice to appear from the city of Urbana for
possession of marijuana and drug paraphernalia; that defendant was arrested in
2003, for possession of marijuana in Villa Grove; and that defendant’s personal
social media page contained “images for the legalization of marijuana” as well as
“a picture containing actual marijuana” and “a picture containing large amounts of
U.S. currency.” The complaint and affidavit for search warrant stated that on
“January 10, 2012 [sic],” Officer Michael Cervantes used his drug-detection dog to
conduct a sweep of defendant’s apartment door, along with three additional
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apartment doors and a closet door, and that the dog alerted to drugs at defendant’s
apartment door. Detective Mecum stated in the complaint and affidavit for search
warrant that on January 10, 2013, while walking through the apartment building, he
observed a package addressed to defendant at “409 W. Elm #10” with a return
shipping label listing “a Ben Jones in Oakland California.” Detective Mecum also
stated that the only apartment without a number on the door is on the third floor
directly across from unit No. 9, and he subsequently confirmed that unit No. 10 is
located on the third floor. The trial judge granted the search warrant application and
the police searched defendant’s apartment later that day, resulting in discovery of
marijuana.
¶ 10 On January 11, 2013, the State charged defendant with unlawful possession
with intent to deliver between 500 and 2,000 grams of cannabis (720 ILCS 550/5(e)
(West 2012)), a Class 2 felony. Defendant filed a motion to suppress the evidence,
arguing that the dog sniff of the entrance to her apartment violated the fourth
amendment under Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013). The
trial court issued a written order granting defendant’s motion to suppress. The trial
court found that People v. Trull, 64 Ill. App. 3d 385, 387 (1978) (holding that police
officers’ warrantless entry into a defendant’s locked apartment building violated
the defendant’s fourth amendment rights and that evidence found after officers
entered the apartment building must be suppressed) had not been overruled and was
controlling authority.
¶ 11 The trial court also noted that both the authors of the majority and the dissenting
opinions in Jardines recognized that the implied invitation or license for an
individual to approach the door to a home would not extend to a stranger, with or
without a dog, who approached the door without a specific invitation in the middle
of the night. The trial court determined the dog sniff conducted by Officer
Cervantes and his dog in the middle of the night “violated the no-night-visits rule
referred to in the Jardines decision.”
¶ 12 The trial court’s order further noted that the complaint and affidavit for search
warrant erroneously stated that the canine sweep occurred a year earlier, on January
10, 2012, and was sworn to by Detective Mecum with the erroneous statement
uncorrected. The court held that “[t]he sniff of Defendant’s apartment door, located
within a locked apartment building, at 3:20 a.m. on January 10, 2013, violated
Defendant’s Fourth Amendment rights.” The court further determined that the
remaining facts pleaded in the complaint and affidavit for search warrant were
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insufficient to establish probable cause for issuance of the search warrant
requested, and that the good-faith exception to suppression was not applicable to
the facts of this case.
¶ 13 The appellate court affirmed, concluding that the search warrant was issued on
the basis of an unconstitutional warrantless dog sniff. The appellate court further
concluded that the recovered marijuana was “fruit of the poisonous tree and the
exclusionary rule applies.” 2015 IL App (4th) 140006, ¶ 65. We allowed the State’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).
¶ 14 ANALYSIS
¶ 15 The State appeals from the judgment of the appellate court affirming the trial
court’s order granting defendant’s motion to suppress. This court gives great
deference to the trial court’s findings of fact when ruling on a motion to suppress.
People v. Cregan, 2014 IL 113600, ¶ 22. We will reverse the trial court’s findings
of fact only if they are against the manifest weight of the evidence. Cregan, 2014 IL
113600, ¶ 22. Here, there is no dispute concerning the trial court’s factual findings.
¶ 16 The trial court’s legal ruling on whether the evidence should be suppressed is
reviewed de novo. People v. Bridgewater, 235 Ill. 2d 85, 92-93 (2009). The
question of law at issue in this appeal is whether the warrantless use of a
drug-detection dog at an apartment door, located within a locked apartment
building, in the middle of the night, violated defendant’s fourth amendment rights.
We review this question of law de novo. Woods v. Cole, 181 Ill. 2d 512, 516 (1998).
¶ 17 I. Whether Defendant’s Fourth Amendment Rights Were Violated
¶ 18 The State argues that use of the drug-detection dog did not violate defendant’s
fourth amendment rights because it did not occur in defendant’s home or its
curtilage. According to the State, the officers conducted a dog sniff on the landing
outside of defendant’s apartment door. The State contends that the landing was not
part of defendant’s curtilage. Defendant counters that use of the drug-detection dog
at the entrance to her apartment was unreasonable and violated both the fourth
amendment to the United States Constitution (U.S. Const., amend. IV) as well as
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the search and seizure provisions of article I, section 6, of the Illinois Constitution
(Ill. Const. 1970, art. I, § 6).
¶ 19 The fourth amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const., amend. IV.
Similarly, the Illinois Constitution provides:
“The people shall have the right to be secure in their persons, houses, papers
and other possessions against unreasonable searches, seizures, invasions of
privacy or interceptions of communications by eavesdropping devices or other
means. No warrant shall issue without probable cause, supported by affidavit
particularly describing the place to be searched and the persons or things to be
seized.” Ill. Const. 1970, art. I, § 6.
“This court interprets the search and seizure clause of the Illinois Constitution in
‘limited lockstep’ with its federal counterpart.” People v. LeFlore, 2015 IL 116799,
¶ 16 (quoting People v. Caballes, 221 Ill. 2d 282, 314 (2006)).
¶ 20 The parties disagree whether the United States Supreme Court’s recent decision
in Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013) controls. The State
argues that the officers conducted a dog sniff on the landing outside of defendant’s
apartment door and that the landing was not part of the defendant’s curtilage under
the “property-based” analysis announced in Jardines. Defendant counters that
under Jardines, a search warrant is required to conduct a dog-sniff search at the
entrance to a home.
¶ 21 In Jardines, the Miami-Dade police department received an “unverified tip”
that marijuana was being grown in defendant’s home. Jardines, 569 U.S. at ___,
133 S. Ct. at 1413. A month later, police went to defendant’s home with a
drug-detection dog. The dog approached the front porch and, after sniffing the base
of the front door, gave a positive alert for narcotics. On the basis of the dog sniff,
police applied for and received a warrant to search defendant’s residence. A
subsequent search of the residence resulted in discovery of marijuana plants.
Jardines, 569 U.S. at ___, 133 S. Ct. at 1413.
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¶ 22 The lead opinion, authored by Justice Scalia, limited its review “to the question
of whether the officers’ behavior was a search within the meaning of the Fourth
Amendment.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1414. The Supreme Court
held that a warrantless “dog sniff” of an individual’s front porch was a search for
purposes of the fourth amendment and suppressed the recovered evidence. The
Supreme Court began its analysis by emphasizing that the fourth amendment
establishes:
“a simple baseline, one that for much of our history formed the exclusive basis
for its protections: When ‘the Government obtains information by physically
intruding’ on persons, houses, papers, or effects, ‘a “search” within the original
meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ ” Jardines,
569 U.S. at ___, 133 S. Ct. at 1414 (quoting United States v. Jones, 565 U.S.
___, ___ n.3, 132 S. Ct. 945, 950 n.3 (2012)).
¶ 23 The Court in Jardines recognized that its decision in Katz v. United States, 389
U.S. 347 (1967), holding that property rights are not the sole measure of the fourth
amendment’s protections, may add to this baseline, but does not subtract anything
from the fourth amendment’s protections “ ‘when the Government does engage in
[a] physical intrusion of a constitutionally protected area.’ ” (Emphasis in original.)
Jardines, 569 U.S. at ___, 133 S. Ct. at 1414 (quoting United States v. Knotts, 460
U.S. 276, 286 (1983) (Brennan, J., concurring in the judgment, joined by Marshall,
J.). The Supreme Court stated that the principle in such a case is straightforward:
“The officers were gathering information in an area belonging to Jardines and
immediately surrounding his house—in the curtilage of the house, which we
have held enjoys protection as part of the home itself. And they gathered that
information by physically entering and occupying the area to engage in conduct
not explicitly or implicitly permitted by the homeowner.” Jardines, 569 U.S. at
___, 133 S. Ct. at 1414.
¶ 24 The Supreme Court in Jardines initially considered whether police intruded
upon a constitutionally protected area. “The Fourth Amendment does not ***
prevent all investigations conducted on private property ***.” “But when it comes
to the Fourth Amendment, the home is first among equals.” Jardines, 569 U.S. at
___, 133 S. Ct. at 1414. “At the Amendment’s ‘very core’ stands ‘the right of a man
to retreat into his own home and there be free from unreasonable governmental
intrusion.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1414 (quoting Silverman v.
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United States, 365 U.S. 505, 511 (1961)). “[T]he area ‘immediately surrounding
and associated with the home’—what our cases call the curtilage” is regarded as
“ ‘part of the home itself for Fourth Amendment purposes.’ ” Jardines, 569 U.S. at
___, 133 S. Ct. at 1414 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)).
“This area around the home is ‘intimately linked to the home, both physically and
psychologically,’ and is where ‘privacy expectations are most heightened.’ ”
Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting California v. Ciraolo, 476
U.S. 207, 213 (1986)). The Court found “no doubt” that the police officers entered
the curtilage of Jardines’s home as “[t]he front porch is the classic exemplar of an
area adjacent to the home and ‘to which the activity of home life extends.’ ”
Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S. at 182 n.12).
¶ 25 After determining that police officers intruded upon a constitutionally protected
area in Jardines, the Court turned to whether the police conduct in entering this
constitutionally protected area with a drug-detection dog was “accomplished
through an unlicensed physical intrusion.” Jardines, 569 U.S. at ___, 133 S. Ct. at
1415. The Court recognized that law enforcement officers need not “ ‘shield their
eyes’ when passing by the home ‘on public thoroughfares,’ ” but an officer’s ability
to gather information is “sharply circumscribed” after stepping off the public
thoroughfare. Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Ciraolo, 476
U.S. at 213). The Court also recognized an implicit license for individuals,
including police, “to approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger longer) leave.” Jardines,
569 U.S. at ___, 133 S. Ct. at 1415.
¶ 26 “Thus, a police officer not armed with a warrant may approach a home and
knock, precisely because that is ‘no more than any private citizen might do.’ ”
Jardines, 569 U.S. at ___, 133 S. Ct. at 1416 (quoting Kentucky v. King, 563 U.S.
452, 469 (2011)). There is no customary invitation, however, for police to
introduce “a trained police dog to explore the area around the home in hopes of
discovering incriminating evidence.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1416.
¶ 27 The Court in Jardines noted that it was unnecessary to decide whether the
officers’ investigation violated Jardines’s reasonable expectation of privacy under
Katz. “The Katz reasonable-expectations test ‘has been added to, not substituted
for,’ the traditional property-based understanding of the Fourth Amendment, and so
is unnecessary to consider when the government gains evidence by physically
intruding on constitutionally protected areas.” (Emphases in original.) Jardines,
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569 U.S. at ___, 133 S. Ct. at 1417 (quoting Jones, 565 U.S. at ___, 132 S. Ct. at
951-52). Nor did it need to consider whether Kyllo v. United States, 533 U.S. 27
(2001), applied because “when the government uses a physical intrusion to explore
details of the home (including its curtilage), the antiquity of the tools that they bring
along is irrelevant.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1417. The Supreme
Court concluded that “[t]he government’s use of trained police dogs to investigate
the home and its immediate surroundings is a ‘search’ within the meaning of the
Fourth Amendment.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1417-18.
¶ 28 Justice Kagan, joined by Justices Ginsburg and Sotomayor, concurred in the
majority opinion to express that the police conduct in Jardines violated the fourth
amendment on privacy as well as property grounds. Jardines, 569 U.S. at ___, 133
S. Ct. at 1418 (Kagan, J., concurring, joined by Ginsburg and Sotomayor, JJ.).
Property concepts and privacy concepts will “align” in cases involving a search of a
home as “[t]he law of property ‘naturally enough influence[s]’ our ‘shared social
expectations’ of what places should be free from governmental incursions.”
Jardines, 569 U.S. at ___, 133 S. Ct. at 1419 (Kagan, J., concurring, joined by
Ginsburg and Sotomayor, JJ.) (quoting Georgia v. Randolph, 547 U.S. 103, 111
(2006)).
¶ 29 According to the concurring Justices, if this case had been decided on privacy
grounds, then it would have been resolved by Kyllo. In Kyllo, the Court highlighted
its “intention to draw both a ‘firm’ and a ‘bright’ line at ‘the entrance to the
house.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1419 (Kagan, J., concurring,
joined by Ginsburg and Sotomayor, JJ.) (quoting Kyllo, 533 U.S. at 40). In Kyllo,
the Supreme Court announced the rule: “ ‘Where, as here, the Government uses a
device that is not in general public use, to explore details of the home that would
previously have been unknowable without physical intrusion, the surveillance is a
“search” and is presumptively unreasonable without a warrant.’ ” Jardines, 569
U.S. at ___, 133 S. Ct. at 1419 (Kagan, J., concurring, joined by Ginsburg and
Sotomayor, JJ.) (quoting Kyllo, 533 U.S. at 40). The special concurrence concluded
that police use of a drug-detection dog—a device not in general public use—to
examine Jardines’s home violated his expectation of privacy in his home. Jardines,
569 U.S. at ___, 133 S. Ct. at 1420 (Kagan, J., concurring, joined by Ginsburg and
Sotomayor, JJ.).
¶ 30 Justice Alito dissented, joined by Chief Justice Roberts and Justices Kennedy
and Breyer. The dissent opined that the law of trespass provided no support for the
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Court’s holding and that there was no violation of the defendant’s reasonable
expectation of privacy under Katz because “[a] reasonable person understands that
odors emanating from a house may be detected from locations that are open to the
public.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1421 (Alito, J., dissenting, joined
by Roberts, C.J., Kennedy and Breyer, JJ.). The dissent also disagreed with Justice
Kagan’s special concurrence, seeing “no basis for concluding that the occupants of
a dwelling have a reasonable expectation of privacy in odors that emanate from the
dwelling and reach spots where members of the public may lawfully stand.”
Jardines, 569 U.S. at ___, 133 S. Ct. at 1424 (Alito, J., dissenting, joined by
Roberts, C.J., Kennedy and Breyer, JJ.).
¶ 31 The State attempts to distinguish this case from Jardines by arguing: (1) the
landing in front of defendant’s apartment does not qualify as curtilage under
Jardines; (2) the landing does not qualify as curtilage under the four-factor test set
forth in United States v. Dunn, 480 U.S. 294 (1987); (3) the borders of the curtilage
should be straightforward and there is no easy way to determine where the
boundaries are if common areas are considered curtilage; and (4) the common
landing is not associated with the intimate activities of the home that animate the
curtilage concept.
¶ 32 On the State’s first argument—that the landing in front of defendant’s
apartment does not qualify as curtilage under Jardines—the State contends that the
landing is different than the front porch at issue in Jardines. The State argues that
the landing did not belong to defendant and she had no possessory interest in the
landing. The State suggests that Jardines is applicable only to single-family
residences and not applicable to leased apartments or condominiums because there
is no legitimate expectation of privacy in common areas of such multiunit
dwellings.
¶ 33 We are not persuaded by the State’s argument. Here, the entrances to
defendant’s apartment building were locked every time police attempted to enter
the secured building. Officers were only admitted to an area not accessible to the
general public by a resident or by another officer. We emphasize that the “common
areas” of the secured apartment building were clearly not open to the general
public, a fact known by the officers who entered defendant’s secured apartment
building in the middle of the night.
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¶ 34 We are equally unpersuaded by the State’s second argument—that the landing
does not qualify as curtilage under the four-factor test set forth in Dunn, 480 U.S.
294. In Dunn, the Supreme Court stated that the common-law concept of
“curtilage” extended to the “area immediately surrounding a dwelling house” and
the curtilage concept “plays a part, however, in interpreting the reach of the Fourth
Amendment.” Dunn, 480 U.S. at 300. Dunn recognized that “the Fourth
Amendment protects the curtilage of a house and that the extent of the curtilage is
determined by factors that bear upon whether an individual reasonably may expect
that the area in question should be treated as the home itself.” Dunn, 480 U.S. at
300 (citing Oliver, 466 U.S. at 180). Dunn further recognized that the central
component of the curtilage inquiry is “whether the area harbors the ‘intimate
activity associated with the “sanctity of a man’s home and the privacies of life.” ’ ”
Dunn, 480 U.S. at 300 (quoting Oliver, 466 U.S. at 180, quoting Boyd v. United
States, 116 U.S. 616, 630 (1886)). The Supreme Court set forth a four-factor
inquiry for analyzing curtilage questions: (1) “the proximity of the area claimed to
be curtilage to the home”; (2) “whether the area is included within an enclosure
surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4)
“the steps taken by the resident to protect the area from observation by people
passing by.” Dunn, 480 U.S. at 301.
¶ 35 Considering the first Dunn factor, “the proximity of the area claimed to be
curtilage to the home,” the State does not dispute that the landing is located directly
in front of defendant’s apartment. We find that the proximity of the landing to
defendant’s apartment strongly supports an inference that the landing be treated as
curtilage under the first Dunn factor.
¶ 36 The State contends that the last three Dunn factors weigh heavily against
treating the landing as curtilage of defendant’s apartment. Specifically, the State
argues that the area was not included within an enclosure surrounded by the home
that excluded others, there is no evidence that defendant put the landing to any use
other than accessing her apartment, and that no effort was made by defendant to
protect the area from observation. We disagree.
¶ 37 Here, the landing to defendant’s apartment is an area located within a locked
structure intended to exclude the general public. The third-floor landing is located
directly outside of defendant’s apartment door and the nature of its use is generally
limited to defendant, the tenant of unit No. 9, and their invitees. The third-floor
landing is an area with limited access, located within a locked building and not
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observable by “people passing by.” We find the last three Dunn factors weigh in
favor of finding that the landing to defendant’s apartment is curtilage and reject the
State’s argument to the contrary.
¶ 38 The State’s third argument against a determination that the landing in front of
defendant’s apartment is curtilage is equally unavailing. The State argues that the
boundaries of curtilage should be straightforward and there is no easy way to
determine boundaries if common areas are considered curtilage. The State notes
that the “boundaries of the curtilage are generally ‘clearly marked,’ [and] the
‘conception defining the curtilage’ is at any rate familiar enough that it is ‘easily
understood from our daily experience.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at
1415 (quoting Oliver, 466 U.S. at 182 n.12).
¶ 39 As the State argues, “[t]his clarity is important for residents, who should know
where they can expect privacy, and for officers, who need to make judgments, often
quickly, in the field *** there is no easy way to determine where the boundaries
would be if the common area were considered to be within the apartment’s
curtilage.” The boundary to the landing of defendant’s apartment is easily
understood as curtilage. The landing is a clearly marked area within a locked
building with limited use and restricted access, “familiar enough that it is ‘easily
understood from our daily experience.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at
1415 (quoting Oliver, 466 U.S. at 182 n.12). We therefore reject the State’s
argument suggesting that the border of the landing to defendant’s apartment is not
straightforward and should not be considered curtilage.
¶ 40 We also disagree with the State’s fourth argument that the landing in front of
defendant’s apartment “is not associated with the intimate activities of the home
that animate the curtilage concept.” The State’s argument is simply a restatement of
the concepts we have already addressed in the State’s Dunn argument. The State
quotes People v. Pitman, 211 Ill. 2d 502, 516 (2004), where this court stated: “[i]n
determining whether a particular area falls within a home’s curtilage, a court asks
whether the area harbors the intimate activities commonly associated with the
sanctity of a person’s home and the privacies of life.” In Pitman, this court noted:
“[t]he extent of the curtilage is determined by factors ‘that bear upon whether an
individual reasonably may expect that the area in question should be treated as the
home itself.’ ” Pitman, 211 Ill. 2d at 516 (quoting Dunn, 480 U.S. at 300). This
court then applied the Dunn four-factor test to the facts of that case. Pitman, 211 Ill.
2d at 516 (citing Dunn, 480 U.S. at 301). We have already examined the facts of
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this case under the Dunn four-factor test and, therefore, reject the State’s argument
that the landing to defendant’s apartment is not associated with the intimate
activities of the home.
¶ 41 We reiterate that the entrances to defendant’s apartment building were locked
every time police attempted to enter the secured building and officers entered the
building with the knowledge that the building they entered was not accessible to the
general public. Thus, this case is distinguishable from situations that involve police
conduct in common areas readily accessible to the public. Accordingly, we reject
the State’s argument that defendant’s landing should not be treated as curtilage for
purposes of the fourth amendment.
¶ 42 Even the Jardines dissent made observations that support our conclusion that
the police conduct in this case violated the fourth amendment. The dissenting
opinion in Jardines noted that custom grants “members of the public may lawfully
proceed along a walkway leading to the front door of a house.” Jardines, 569 U.S.
at ___, 133 S. Ct. at 1421-22 (Alito, J., dissenting, joined by Roberts, C.J., Kennedy
and Breyer, JJ.). The dissent specifically noted, however, that this license has
certain spatial and temporal limits:
“A visitor must stick to the path that is typically used to approach a front door,
such as a paved walkway. A visitor cannot traipse through the garden, meander
into the backyard, or take other circuitous detours that veer from the pathway
that a visitor would customarily use. ***
Nor, as a general matter, may a visitor come to the front door in the middle
of the night without an express invitation. See State v. Cada, 129 Idaho 224,
233, 923 P.2d 469, 478 (App. 1996) (‘Furtive intrusion late at night or in the
predawn hours is not conduct that is expected from ordinary visitors. Indeed, if
observed by a resident of the premises, it could be a cause for great alarm’).”
Jardines, 569 U.S. at ___, 133 S. Ct. at 1422 (Alito, J., dissenting, joined by
Roberts, C.J., Kennedy and Breyer, JJ.).
¶ 43 Under the facts in Jardines, the dissent believed the officer did not exceed the
scope of the license to approach Jardines’s door. The officer “adhered to the
customary path; he did not approach in the middle of the night; and he remained at
the front door for only a very short period (less than a minute or two).” Jardines,
569 U.S. at ___, 133 S. Ct. at 1423 (Alito, J., dissenting, joined by Roberts, C.J.,
Kennedy and Breyer, JJ.). In contrast to Jardines, the police conduct in this case
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certainly exceeded the scope of the license to approach defendant’s apartment door
when the officers entered a locked building in the middle of the night and they
remained in the building for more than “a very short period of time,” even taking
time to have the drug-detection dog conduct an open-air sweep of other apartment
doors in the building, for some unknown reason. See Jardines, 569 U.S. at ___, 133
S. Ct. at 1423 (Alito, J., dissenting, joined by Roberts, C.J., Kennedy and Breyer,
JJ.).
¶ 44 We conclude that, under Jardines, 569 U.S. ___, 133 S. Ct. 1409, when police
entered defendant’s locked apartment building at 3:20 a.m. with a drug-detection
dog, their investigation took place in a constitutionally protected area. We hold that
the trial court properly determined that the warrantless use of the drug-detection
dog at defendant’s apartment door violated defendant’s rights under the fourth
amendment to the United States Constitution. U.S. Const., amend. IV.
¶ 45 The dissent would find there is no legitimate expectation of privacy in the odors
that waft from an apartment to common areas of an apartment building. Infra ¶ 121.
Our application of Jardines, however, makes it unnecessary to address the merits of
whether use of the drug-detection dog violated defendant’s reasonable expectation
of privacy. See Jardines, 569 U.S. at ___, 133 S. Ct. at 1417.
¶ 46 II. Whether the Good-Faith Exception to the Exclusionary Rule Applies
¶ 47 The State asserts that even if this court determines the officers violated the
fourth amendment in this case, the evidence should not be suppressed because the
officers acted in good-faith reliance on established precedent. Generally, courts
will not admit evidence obtained in violation of the fourth amendment. People v.
Sutherland, 223 Ill. 2d 187, 227 (2006). The fruit-of-the-poisonous-tree doctrine is
an outgrowth of the exclusionary rule providing that “the fourth amendment
violation is deemed the ‘poisonous tree,’ and any evidence obtained by exploiting
that violation is subject to suppression as the ‘fruit’ of that poisonous tree.” People
v. Henderson, 2013 IL 114040, ¶ 33. “[T]he ‘prime purpose’ of the exclusionary
rule ‘is to deter future unlawful police conduct and thereby effectuate the guarantee
of the Fourth Amendment against unreasonable searches and seizures.’ ” Illinois v.
Krull, 480 U.S. 340, 347 (1987) (quoting United States v. Calandra, 414 U.S. 338,
347 (1974)).
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¶ 48 The good-faith exception to the exclusionary rule has been codified in section
114-12(b)(1), (b)(2) of the Code of Criminal Procedure of 1963:
“(1) If a defendant seeks to suppress evidence because of the conduct of a
peace officer in obtaining the evidence, the State may urge that the peace
officer’s conduct was taken in a reasonable and objective good faith belief that
the conduct was proper and that the evidence discovered should not be
suppressed if otherwise admissible. The court shall not suppress evidence
which is otherwise admissible in a criminal proceeding if the court determines
that the evidence was seized by a peace officer who acted in good faith.
(2) ‘Good faith’ means whenever a peace officer obtains evidence:
(i) pursuant to a search or an arrest warrant obtained from a neutral and
detached judge, which warrant is free from obvious defects other than
non-deliberate errors in preparation and contains no material misrepresentation
by any agent of the State, and the officer reasonably believed the warrant to be
valid; or
(ii) pursuant to a warrantless search incident to an arrest for violation of a
statute or local ordinance which is later declared unconstitutional or otherwise
invalidated.” 725 ILCS 5/114-12(b)(1), (b)(2) (West 2012).
¶ 49 The Supreme Court has expanded the good-faith exception to the exclusionary
rule to include good-faith reliance upon binding appellate precedent that
specifically authorized a particular practice but was subsequently overruled. Davis
v. United States, 564 U.S. 229, ___, 131 S. Ct. 2419, 2429 (2011). The Davis
expansion of the good-faith exception to the exclusionary rule was recently adopted
by this court in LeFlore, 2015 IL 116799, ¶¶ 29-31.
¶ 50 Here, the appellate court rejected the State’s argument that the evidence should
not be suppressed because the officers acted in good-faith reliance on established
precedent. The appellate court held that no binding precedent specifically
authorized the officers’ conduct (see Davis, 564 U.S. at ___, 131 S. Ct. at 2429),
and the exception to the exclusionary rule announced in Davis is not applicable to
this case. 2015 IL App (4th) 140006, ¶ 60. At the time the appellate court issued its
decision in January 2015, it did not have the benefit of our recent decision in
LeFlore, 2015 IL 116799.
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¶ 51 In LeFlore, this court began its analysis by recognizing that “[t]he mere fact of a
fourth amendment violation does not mean that exclusion necessarily follows”
because there “is no constitutional right to have the evidence resulting from an
illegal search or seizure suppressed at trial.” LeFlore, 2015 IL 116799, ¶ 22.
Rather, the exclusionary rule has been applied only to “unusual cases” when its
application will deter future fourth amendment violations. LeFlore, 2015 IL
116799, ¶ 22. Exclusion of evidence is a court’s last resort, not its first impulse.
LeFlore, 2015 IL 116799, ¶ 22. Importantly, this court noted in LeFlore:
“In order for exclusion of the evidence to apply, the deterrent benefit of
suppression must outweigh the ‘substantial social costs.’ [United States
v. ]Leon, 468 U.S. [897,] 907 [(1984)]. ‘ “Exclusion exacts a heavy toll on both
the judicial system and society at large,” because it “almost always requires
courts to ignore reliable, trustworthy evidence bearing on guilt or innocence,”
and “its bottom-line effect, in many cases, is to suppress the truth and set the
criminal loose in the community without punishment.” ’ [United States
v. ]Stephens, 764 F.3d [327,] 335 [(4th Cir. 2014)] (quoting Davis, 564 U.S. at
___, 131 S. Ct. at 2427). ‘As this result conflicts with the “truth-finding
functions of judge and jury,” [citation] exclusion is a “bitter pill,” [citation]
swallowed only as a “last resort,” [citation].’ [Citation.] In order for the
exclusionary rule to be appropriate then, the deterrent benefits must outweigh
its heavy costs. Davis, 564 U.S. at ___, 131 S. Ct. at 2427.” LeFlore, 2015 IL
116799, ¶ 23.
¶ 52 We recognized in LeFlore that when there is no illicit conduct to deter, the
deterrent rationale loses much of its force and, thus, “exclusion is invoked only
where police conduct is both ‘sufficiently deliberate’ that deterrence is effective
and ‘sufficiently culpable’ that deterrence outweighs the cost of suppression.
[Citations.]” LeFlore, 2015 IL 116799, ¶ 24. We emphasized that in determining
whether the good-faith exception to the exclusionary rule applies in any case, the
inquiry is “ ‘whether a reasonably well trained officer would have known that the
search was illegal in light of all of the circumstances.’ [Citation.]” LeFlore, 2015 IL
116799, ¶ 25.
¶ 53 The State argues that the good-faith exception to the exclusionary rule should
apply for three reasons: (1) the officers relied on binding United States Supreme
Court precedent holding that dog sniffs are not fourth amendment searches; (2) the
officers relied on Illinois precedent holding that residents have no reasonable
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expectations of privacy in apartment building common areas; and (3) the officers
relied on federal precedent holding that dog sniffs outside residence doors were not
fourth amendment searches. According to the State, it was objectively reasonable
for the officers to rely in good faith on the legal landscape that existed at the time of
the dog sniff. Additionally, the State argues that the officers seized the evidence in
good-faith reliance on the search warrant.
¶ 54 The State cites United States v. Place, 462 U.S. 696 (1983), City of
Indianapolis v. Edmond, 531 U.S. 32 (2000), and Illinois v. Caballes, 543 U.S. 405
(2005), in arguing that officers relied on binding United States Supreme Court
precedent holding that dog sniffs are not fourth amendment searches. In Place, the
Supreme Court held that use of a drug-detection dog to sniff luggage at an airport
“did not constitute a ‘search’ within the meaning of the Fourth Amendment.”
Place, 462 U.S. at 707. In City of Indianapolis, the Supreme Court held that there
was no fourth amendment search when officers conducted a dog sniff of an
automobile at a highway checkpoint. City of Indianapolis, 531 U.S. at 40. In
Caballes, the Supreme Court held that “the use of a well-trained narcotics-detection
dog—one that ‘does not expose noncontraband items that otherwise would remain
hidden from public view,’ [citation]—during a lawful traffic stop generally does
not implicate legitimate privacy interests.” Caballes, 543 U.S. at 409 (quoting
Place, 462 U.S. at 707).
¶ 55 The appellate court determined that the United States Supreme Court precedent
did not specifically authorize the conduct of the officers in this case because those
cases did not involve use of drug-detection dogs to sniff a home. 2015 IL App (4th)
140006, ¶ 57. The appellate court recognized that use of a drug-detection dog to
sniff a home in the hopes of discovering incriminating evidence presents a very
different issue than use of drug-detection dogs on automobiles during a lawful
traffic stop and in public areas. 2015 IL App (4th) 140006, ¶ 57. We agree with the
appellate court that the United States Supreme Court precedent concerning use of
drug-detection dogs to sniff areas other than a home did not specifically authorize
the officers’ conduct in this case.
¶ 56 Indeed, contrary to the State’s argument, United States Supreme Court
precedent has long provided that the home has heightened expectations of privacy
and that at the core of the fourth amendment is “the right of a man to retreat into his
own home and there be free from unreasonable governmental intrusion.”
Silverman, 365 U.S. at 511. The Supreme Court has stressed “ ‘the overriding
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respect for the sanctity of the home that has been embedded in our traditions since
the origins of the Republic.’ ” Oliver, 466 U.S. at 178 (quoting Payton v. New York,
445 U.S. 573, 601 (1980)). The curtilage, being the area “immediately surrounding
and associated with the home” is also regarded as “part of home itself for Fourth
Amendment purposes.” Oliver, 466 U.S. at 180. Here, the police conduct involving
the warrantless use of a drug-detection dog at 3:20 a.m. at defendant’s apartment
door, located within a locked apartment building, is simply not supported by an
objectively reasonable good-faith belief that their conduct was specifically
authorized under any United States Supreme Court precedent.
¶ 57 The State next argues that the good-faith exception to the exclusionary rule
should apply because the officers relied on binding Illinois precedent holding that
residents had no reasonable expectations of privacy in apartment building common
areas. The State relies on People v. Smith, 152 Ill. 2d 229 (1992), and People v.
Lyles, 332 Ill. App. 3d 1 (2002), to assert that Illinois precedent established that
tenants in an apartment building have no reasonable expectation of privacy in
common areas.
¶ 58 In Smith, police officers went to the defendant’s apartment building, opened the
building’s unlocked rear door, and walked to a common-area hallway. While
standing in the hallway, the officers overheard a conversation relating to a murder
they were investigating. This court held that the officers’ conduct did not constitute
a search under the fourth amendment. Smith, 152 Ill. 2d at 245-46. Contrary to the
State’s assertion, Smith did not hold that tenants have no expectation of privacy in
common areas of locked apartment buildings. Rather, Smith concerned an
individual’s reasonable expectation of privacy in things overheard by the police
while standing in a common area of an unlocked apartment building. Consequently,
Smith does not support the State’s position.
¶ 59 In Lyles, police officers arrested three suspects emerging from the back of an
apartment building that had a locked outer door. While arresting the suspects, the
officers held open the outer door and subsequently ascended the staircase, where
they found two guns in a garbage can on the defendant’s back porch. The appellate
court in Lyles held that a tenant “has no reasonable expectation of privacy in
common areas of an apartment building that are accessible to other tenants and their
invitees.” Lyles, 332 Ill. App. 3d at 7. Here, the appellate court determined that
Lyles, an Appellate Court, First District decision, did not involve the use of a
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drug-detection dog and was not binding on the Appellate Court, Fourth District.
2015 IL App (4th) 140006, ¶ 58.
¶ 60 Instead, the appellate court determined that its own decision in Trull, 64 Ill.
App. 3d 385, was binding appellate court precedent relating to the officer’s
conduct. 2015 IL App (4th) 140006, ¶ 59. In Trull, the officers used keys found at
the site of a burglary to open the outer door to defendant’s apartment building. In
determining that the entry into a locked common area of an apartment building in
Trull violated the fourth amendment, the appellate court stated:
“A person’s legitimate expectations of privacy are to be protected. (Katz v.
United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507.) Federal
cases have indicated that the common areas of a locked apartment building are
protected under the fourth amendment. (United States v. Carriger (6th Cir.
1976), 541 F.2d 545; United States v. Fluker (9th Cir. 1976), 543 F.2d 709;
United States v. Case (7th Cir. 1970), 435 F.2d 766; United States v. Blank
(N.D. Ohio 1966), 251 F. Supp. 166.) *** We discern a marked difference
between an individual’s expectation of privacy in a locked apartment building
as compared to an unlocked one. It seems rather elementary to us that a locked
door is a very strong manifestation of a person’s expectation of privacy. Thus,
we conclude that the common entries and hallways of a locked apartment
building are protected by the fourth amendment.” Trull, 64 Ill. App. 3d at 389.
The appellate court determined that the conduct of the officers in entering the
defendant’s locked apartment building with a drug-detection dog was not
authorized under Trull. 2015 IL App (4th) 140006, ¶ 59.
¶ 61 The State contends that under Smith and Lyles, Trull was no longer good law.
The State further argues that the officers could reasonably rely on Smith and Lyles
to conduct their dog sniff because defendant had no reasonable expectation of
privacy in the common landing outside her apartment door under Smith and Lyles.
We reject the State’s argument. As explained earlier in this opinion, Smith did not
hold that tenants have no expectation of privacy in common areas of locked
apartment buildings; rather, Smith concerned an individual’s reasonable
expectation of privacy in things overheard by the police while standing in a
common area of an unlocked apartment building. Supra ¶ 58.
¶ 62 Moreover, at the time of the officers’ conduct in this case, Trull stood, and still
stands, as binding Appellate Court, Fourth District precedent extending the
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protection of the fourth amendment to the common areas of a locked apartment
building. We agree with the appellate court’s conclusion that there was no binding
Illinois precedent specifically authorizing the officers’ conduct in this case. More
critically, Trull constitutes binding Appellate Court, Fourth District precedent
finding similar police conduct unconstitutional.
¶ 63 Likewise, the State’s argument that Trull was no longer good law under Lyles is
not accurate. Both Trull and Lyles relied on federal precedent. Trull, an Appellate
Court, Fourth District case relied on federal cases holding that common areas of a
locked apartment building are protected under the fourth amendment. See United
States v. Carriger, 541 F.2d 545 (6th Cir. 1976); United States v. Fluker, 543 F.2d
709 (9th Cir. 1976); United States v. Case, 435 F.2d 766 (7th Cir. 1970); United
States v. Blank, 251 F. Supp. 166 (N.D. Ohio 1966).
¶ 64 Lyles, an Appellate Court, First District case, noted that Trull relied on Case,
435 F.2d 766, among other federal cases, and that Case was subsequently overruled
in United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991). Lyles relied on
federal cases holding that a tenant had no reasonable expectation of privacy in the
common areas of apartment buildings, even if the door to the apartment building is
locked. See United States v. Barrios-Moriera, 872 F.2d 12, 14-15 (2d Cir. 1989),
overruled on other grounds by Horton v. California, 496 U.S. 128 (1990); United
States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977); United States v. Nohara, 3 F.3d
1239, 1242 (9th Cir. 1993); see also United States v. Miravalles, 280 F.3d 1328,
1329, 1333 (11th Cir. 2002) (no reasonable expectation of privacy where the lock
on the front door of the apartment building was not working on the day police
entered the building).
¶ 65 Lyles did not hold that Trull was no longer good law. Rather, Lyles simply
recognized that one of the federal cases relied on in Trull was subsequently
overruled, and that there were cases from other federal circuits holding that tenants
have no reasonable expectation of privacy in the common areas of a locked
apartment building. Lyles merely showed a split in authority in the federal courts,
and created a conflict between the First and Fourth Districts of the Illinois
Appellate Court.
¶ 66 Here, the appellate court properly determined that Trull, an Appellate Court,
Fourth District case, was binding authority in this case, and that the Appellate
Court, First District case of Lyles was distinguishable and not binding in the Fourth
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District. See People v. Collings, 95 Ill. App. 3d 325 (1981) (rulings of the appellate
court of any district are binding precedent on all circuit courts if there are no
contrary rulings of another district on the same issue but rulings are not binding
precedent upon the other districts of the appellate court). We therefore reject the
State’s argument that the good-faith exception to the exclusionary rule should
apply because the officers could reasonably rely on Smith and Lyles.
¶ 67 The State also cites federal cases holding that officers acted in good faith when
they conducted pre-Jardines dog sniffs outside homes. United States v. Gutierrez,
760 F.3d 750 (7th Cir. 2014); United States v. Davis, 760 F.3d 901 (8th Cir. 2014);
United States v. Winters, 782 F.3d 289 (6th Cir. 2015); United States v. Givens, 763
F.3d 987 (8th Cir. 2014); United States v. Hunter, 770 F.3d 740 (8th Cir. 2014);
Jones v. United States, 14 F. Supp. 3d 811 (W.D. Tex. 2014); United States v.
Parrilla, No. 13 Cr. 360(AJN), 2014 WL 2111680 (S.D.N.Y. May 13, 2014). The
State urges this court to join those other jurisdictions in finding that the officers did
not act culpably by conducting the pre-Jardines dog sniff. Significantly, as even the
State acknowledges in its brief, these cases relied on binding precedent of their own
jurisdictions in applying the good-faith exception to officer conduct that occurred
prior to the United States Supreme Court decision in Jardines. Nevertheless, the
State argues that even if there were no binding precedent specifically authorizing
the officers’ conduct, the officers could have relied on the “legal landscape” to
perform a dog sniff in an apartment building common area. Again, the State focuses
on nonbinding precedent of other jurisdictions. The State’s reliance on those cases
is irrelevant to our inquiry of whether the officers in this case acted in good faith
based on binding precedent when existing Illinois Appellate Court, Fourth District
authority (Trull) was applicable.
¶ 68 Not only was there no binding precedent specifically authorizing the officers’
conduct in this case, Trull constitutes binding Appellate Court, Fourth District
authority specifically prohibiting the conduct. We therefore hold that the good-faith
exception to the exclusionary rule announced in Davis, 564 U.S. at ___, 131 S. Ct.
at 2429, and adopted in LeFlore, 2015 IL 116799, does not apply to the officers’
warrantless use of a drug-detection dog at defendant’s apartment door, located
within a locked apartment building.
¶ 69 The State also argues that the officers seized the evidence in good-faith reliance
on the search warrant. Generally, evidence will not be excluded when officers
reasonably relied on a search warrant issued by a neutral magistrate, even when the
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warrant application was later determined to be insufficient to establish probable
cause. Leon, 468 U.S. at 913, 922. The State acknowledges that the officers’
reliance on the warrant must be reasonable. Given “ ‘the purpose of the
exclusionary rule is to deter unlawful police conduct, *** evidence obtained from a
search should be suppressed only if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.’ ” Leon, 468 U.S. at 919 (quoting
United States v. Peltier, 422 U.S. 531, 542 (1975)). At the time of the officers’
conduct in this case, Trull, holding that common areas of locked apartment
buildings are protected by the fourth amendment, was binding Appellate Court,
Fourth District precedent. Trull, 64 Ill. App. 3d at 387. The officers are, therefore,
charged with the knowledge that the search violated the fourth amendment under
Trull. We find that the officers’ reliance on the warrant issued on the basis of
information obtained in violation of Trull was unreasonable.
¶ 70 The only cases the State relies on for this point are from other jurisdictions. The
State cites State v. Scull, 862 N.W.2d 562, 565-66 (Wis. 2015), where officers
performed a pre-Jardines dog sniff in front of Scull’s house, then obtained a search
warrant based on the dog’s positive alert. The Wisconsin Supreme Court held that
the good-faith exception to the exclusionary rule applied to evidence seized in the
subsequent search of Scull’s home because “the officers ultimately obtained a
warrant to search Scull’s home and that warrant was issued by a detached and
neutral commissioner,” whose “decision to grant the warrant was a reasonable
application of the unsettled state of the law at the time the warrant issued.” Scull,
862 N.W.2d at 568.
¶ 71 Scull is not controlling and is distinguishable from this case. In contrast to the
“unsettled” state of the law in Wisconsin, at the time of the officers’ conduct in this
case, Trull, holding that common areas of locked apartment buildings are protected
by the fourth amendment, was binding Appellate Court, Fourth District precedent
in Illinois. Trull, 64 Ill. App. 3d at 387.
¶ 72 The State also cites United States v. Ponce, 734 F.3d 1225, 1228-29 (10th Cir.
2013), where the court similarly applied the good-faith exception to a pre-Jardines
warrant obtained using a dog sniff outside a garage because the officer reasonably
could have believed that the dog sniff was not a fourth amendment search and that
the area was not within the curtilage of the house, and thus could reasonably rely on
the warrant. We find Ponce distinguishable from the facts of this case. Ponce
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involved a dog sniff outside a garage, not a dog sniff of a landing in a locked
apartment building.
¶ 73 For these reasons, we hold that the good-faith exception to the exclusionary rule
is not applicable.
¶ 74 III. Whether the Remaining Evidence Established Probable Cause for Issuance
of the Search Warrant
¶ 75 The State argues that even if the officers’ use of the drug-detection dog in this
case violated the fourth amendment and the good-faith exception to the
exclusionary rule does not apply, the remaining evidence in the warrant application
established probable cause to search defendant’s apartment. “[I]f the lawfully
obtained information amounts to probable cause and would have justified issuance
of the warrant, apart from the tainted information, the evidence seized pursuant to
the warrant is admitted.” People v. Free, 94 Ill. 2d 378, 399 (1983). The “existence
of probable cause in a particular case means simply that the totality of the facts and
circumstances *** was sufficient to warrant a person of reasonable caution to
believe that the law was violated and evidence of it is on the premises to be
searched.” (Internal quotation marks omitted.) People v. McCarty, 223 Ill. 2d 109,
153 (2006). The “probable cause requirement is rooted in principles of common
sense” and a court asks “whether, given all the circumstances set forth in the
affidavit *** there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” (Internal quotation marks omitted.) McCarty, 223
Ill. 2d at 153.
¶ 76 The trial court determined that if the paragraphs regarding the dog sniff were
excised from the affidavit for a search warrant, the remaining facts pleaded were
insufficient to establish probable cause for the issuance of a search warrant. Aside
from the dog sniff evidence, the application included an uncorroborated
Crimestoppers tip that defendant was receiving shipments of marijuana from her
brother in California, whose name was unknown; she had recently received a
two-pound package of marijuana on November 21, 2012; that she was selling two
pounds of marijuana per week; and that defendant had sold ecstasy to the tipster’s
girlfriend.
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¶ 77 In considering an informant’s tip, the court must consider the detail of the tip,
whether the tip established the basis of the informant’s knowledge, whether the
informant witnessed criminal behavior, and whether the tip accurately predicts
future activity of the suspect. See People v. Kline, 355 Ill. App. 3d 770 (2005).
Here, the anonymous tipster did not indicate how knowledge of defendant’s alleged
criminal activity was gained, nor did the tipster claim to have witnessed
defendant’s criminal behavior or provide an address where defendant was allegedly
receiving and selling contraband. The tipster did not provide a name of the person
allegedly sending defendant the contraband. An uncorroborated anonymous tip
alone is insufficient to establish probable cause. See People v. Ledesma, 206 Ill. 2d
571, 587 (2003), overruled on other grounds in People v. Pitman, 211 Ill. 2d 502
(2004).
¶ 78 The State also relies on the package from California addressed to defendant
seen by Detective Mecum in the apartment building. However, the record does not
indicate when Detective Mecum observed the package, where in the building the
package was observed, or the dimensions of the package to indicate whether it
could reasonably be tied to drug sales.
¶ 79 We agree with the trial court and the appellate court that the application for
search warrant in this case, absent the dog sniff, was insufficient to establish
probable cause for a search warrant of defendant’s home. As the appellate court
aptly noted:
“Absent the dog sniff, the evidence relied upon in the complaint and
affidavit for a search warrant is scanty at best. We cannot determine from the
record the specific time on January 10 when [Detective] Mecum observed a
package addressed to defendant with a return address shipping label from an
individual in California. [Defendant’s personal social media] showing images
favoring the legalization of marijuana and images of marijuana and currency
coupled with defendant’s prior police contacts for possession are not sufficient
to establish probable cause for a search warrant of defendant’s home.” 2015 IL
App (4th) 140006, ¶ 64.
We likewise find that the remaining evidence in the complaint and affidavit for a
search warrant in this case was insufficient to support probable cause for issuance
of a search warrant.
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¶ 80 CONCLUSION
¶ 81 We hold that the warrantless use of a drug-detection dog at 3:20 a.m. at
defendant’s apartment door, located within a locked apartment building, violated
defendant’s rights under the fourth amendment to the United States Constitution.
U.S. Const., amend. IV. We conclude that the good-faith exception to the
exclusionary rule does not apply. We further determine that, absent the dog sniff,
the evidence relied upon in the complaint and affidavit for search warrant was
insufficient to establish probable cause for a search warrant of defendant’s home.
We affirm the judgment of the appellate court and affirm the trial court’s judgment
granting defendant’s motion to suppress.
¶ 82 Affirmed.
¶ 83 CHIEF JUSTICE GARMAN, specially concurring:
¶ 84 I agree with the majority’s conclusion that the dog sniff at issue here violated
the fourth amendment as contemplated in Florida v. Jardines. I likewise take no
issue with its analysis on the good-faith exception to the exclusionary rule and its
analysis on the other information contained within the warrant application.
However, I would focus on the central location of the fourth amendment interest to
address the Jardines question. This analysis produces uniform results for multiunit
dwellings and recognizes the degree to which residents share spaces in a multiunit
dwelling.
¶ 85 The State notes Jardines depended on fourth amendment property-rights
analysis and that the concurrence finding a violation of a “reasonable expectation
of privacy” under Katz v. United States did not carry the day. See generally Florida
v. Jardines, 569 U.S. ___, ___, 133 S. Ct. 1409, 1418-20 (2013) (Kagan, J.,
concurring, joined by Ginsburg and Sotomayor, JJ.). Thus, the State contends
Jardines applies only under a property-rights analysis framework. I have concerns
about this conclusion. While the United States Supreme Court’s majority opinion
confined its analysis to trespass on a constitutionally protected area, it did so
through a finding that the porch was curtilage. The curtilage, unlike the open fields,
is protected by the fourth amendment. United States v. Dunn, 480 U.S. 294, 300
(1987). Whether an area is protected as curtilage depends on “factors that bear upon
- 25 -
whether an individual reasonably may expect that the area in question should be
treated as the home itself.” Id. (citing Oliver v. United States, 466 U.S. 170, 180
(1984)). The Supreme Court has specifically “defined the curtilage, as did the
common law, by reference to the factors that determine whether an individual
reasonably may expect that an area immediately adjacent to the home will remain
private.” Oliver, 466 U.S. at 180. Where the curtilage is distinguished from
unprotected open fields by “reference to the factors that determine whether an
individual reasonably may expect” that area “will remain private,” the curtilage
finding may inherently incorporate a reasonable expectation of privacy. Id.
¶ 86 Even if Jardines stands only for a property-based analysis, the landing
immediately outside defendant’s front door may yet qualify as curtilage. 1 Notably,
the curtilage need not be “the home itself”; instead, the question is whether it
qualifies to be “treated as the home itself.” (Emphasis added.) Dunn, 480 U.S. at
300. The “central component” of the question is “whether the area harbors the
‘intimate activity associated with the sanctity of a man’s home and the privacies of
life.’ ” (Internal quotation marks omitted.) Id. (quoting Oliver, 466 U.S. at 180). To
answer this question, the Supreme Court has stated a four-factor test: “the
proximity of the area claimed to be curtilage to the home, whether the area is
included within an enclosure surrounding the home, the nature of the uses to which
the area is put, and the steps taken by the resident to protect the area from
observation by people passing by.” Id. at 301. The Court specifically has cautioned
against a mechanistic application of these factors. “We do not suggest that
combining these factors produces a finely tuned formula that, when mechanically
applied, yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these
factors are useful analytical tools only to the degree that, in any given case, they
bear upon the centrally relevant consideration—whether the area in question is so
intimately tied to the home itself that it should be placed under the home’s
‘umbrella’ of Fourth Amendment protection.” Id.
1
There is no per se rule that apartments do not have curtilage for fourth amendment purposes. In
People v. McNeal, this court assumed, without deciding, that a garbage can containing the
defendant’s gun was located in the curtilage to his residence, which was described as an “apartment”
and a “townhouse.” 175 Ill. 2d 335, 342, 343 (1997). People v. Vaglica found that the back porch of
an apartment, accessible from a backyard, was curtilage. 99 Ill. App. 2d 194, 197 (1968)
(“Traditionally, courts have held that the curtilage, whether fenced or open, is an area protected
from unreasonable searches. The porch in question, being within the curtilage, will therefore be
considered as within the zone of protection.”).
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¶ 87 The majority opinion addresses, as two separate questions, whether defendant’s
landing and door qualified as curtilage under Jardines and whether defendant’s
landing and door qualified as curtilage under the four-part Dunn test. The Supreme
Court has stated that “curtilage questions should be resolved with particular
reference to four factors” as enumerated in Dunn (id.), yet in Jardines it did not
apply those factors or even cite Dunn. However, it does not appear this constitutes
an abandonment or abrogation of the Dunn four-factor test. The Supreme Court
appears to have found Jardines’s front porch to be such a textbook example of
curtilage that it found no need to assess each of the four factors. “Here there is no
doubt that the officers entered [the curtilage]: The front porch is the classic
exemplar of an area adjacent to the home and ‘to which the activity of home life
extends.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S.
at 182 n.12). By all appearances, then, Dunn remains the dominant curtilage test,
and I would apply its factors in a manner consistent with the facts in Jardines,
rather than trying to address the two questions separately. I would also closely
examine the fourth amendment interest protected in Jardines.
¶ 88 Cases assessing whether to consider an area protected curtilage fall into two
general classes, revealing that curtilage actually serves two distinct fourth
amendment purposes. The first class of cases examines whether an area outside the
home should be granted equivalent protection to the home, for activities and
possessions within that area. In effect, the curtilage in these cases enlarges the
home. The second class of cases is less concerned with the space for life activities
and instead examines the degree to which surveillance by law enforcement intrudes
upon the life activities within the home. Such cases are more concerned with the
vantage point of police. The curtilage in these cases shields the core fourth
amendment area of the home itself. 2
¶ 89 In Dunn, the defendant was convicted of conspiring to manufacture
phenylacetone and amphetamine based on what drug enforcement agents observed
2
These two distinct purposes also happen to line up with the two primary definitions of the
transitive verb “to harbor,” which the Supreme Court and this court have employed in describing
how “the primary focus is whether the area in question harbors those intimate activities associated
with domestic life and the privacies of the home.” Dunn, 480 U.S. at 301 n.4; Merriam-Webster’s
Collegiate Dictionary 529 (10th ed. 1998) (“1 a : to give shelter or refuge to b : to be the home or
habitat of”); see also People v. Pitman, 211 Ill. 2d 502, 516 (2004); People v. Nielson, 187 Ill. 2d
271, 281 (1999).
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within his barn. Dunn, 480 U.S. at 296-98. Agents sought a search warrant after
observing what appeared to be a phenylacetone laboratory within the barn, by
peering over its doors. The Supreme Court considered the four factors in turn.
Noting that the barn was 50 yards from the fence surrounding the house, and 60
yards from the house itself, the Court found the first factor cut against a finding of
curtilage. Id. at 302. Next, the Court noted that the barn was located outside the
fence surrounding the house and concluded “it is plain that the fence surrounding
the residence serves to demark a specific area of land immediately adjacent to the
house that is readily identifiable as part and parcel of the house.” Id.
¶ 90 As to the third factor, the Court found it “especially significant that the law
enforcement officials possessed objective data indicating that the barn was not
being used for intimate activities of the home.” (Emphasis added.) Id. The Court
then described signs of various activities of phenylacetone production in the barn,
noting that “the above facts indicated to the officers that the use to which the barn
was being put could not fairly be characterized as so associated with the activities
and privacies of domestic life that the officers should have deemed the barn as part
of respondent’s home.” Id. at 303. Finally, the Court noted the defendant had done
little to protect the barn area from observation by those standing in the open fields;
various interior fences on the farm property served no function “other than that of
the typical ranch fence,” to corral livestock and not to prevent human observation.
Id.
¶ 91 The incriminating activities and search in Dunn occurred outside the physical
structure of the home itself. Whether the barn was curtilage was, fundamentally, a
question of whether Dunn could carry out activities and store possessions there
“under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301. Dunn
fits within the home-extending curtilage cases. See also Oliver, 466 U.S. at 179
(noting that curtilage, in contrast to the open fields, extends “the setting for those
intimate activities”). This court has reached the same result under very similar
circumstances in assessing whether a building outside the home qualifies as
curtilage. See, e.g., Pitman, 211 Ill. 2d at 518.
¶ 92 On the other hand, the curtilage may also act as a buffer to shield the core fourth
amendment area within the home, and these cases typically focus on where law
enforcement officers stand in making their observations. This court has recognized
that, where an officer uses his own natural senses from a permitted vantage point on
public property to discover what is occurring inside a private residence, it is not a
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search in violation of the fourth amendment. People v. Wright, 41 Ill. 2d 170, 175
(1968). This court noted “the absence of a trespass under our reading of Harris is of
major if not decisive importance in cases involving the plain-view doctrine.” Id. at
176. The question of trespass in the curtilage is, as a general matter, resolved by
inquiry into the license afforded the general public to approach. Jardines, 569 U.S.
at ___, 133 S. Ct. at 1415-16 (“This implicit license typically permits the visitor to
approach the home by the front path, knock promptly, wait briefly to be received,
and then (absent invitation to linger longer) leave. Complying with the terms of that
traditional invitation does not require fine-grained legal knowledge; it is generally
managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a
police officer not armed with a warrant may approach a home and knock, precisely
because that is ‘no more than any private citizen might do.’ Kentucky v. King, 563
U. S. ___, ___[, 131 S. Ct. 1849, 1862] (2011) ***.”).
¶ 93 “On the other hand, if the police stray from that path to other parts of the
curtilage in order to conduct the surveillance, then the use of natural sight or
hearing or smell to detect what is inside is a search within the meaning of the Fourth
Amendment.” 1 Wayne R. LaFave, Search and Seizure § 2.3(c), at 756-57 (5th ed.
2012). The focus thus becomes not the outside area observed and the activities to
which it has been put, but rather where police stand in observing defendants’
activities within the home itself. See, e.g., Hardesty v. Hamburg Township, 461
F.3d 646, 652-53 (6th Cir. 2006) (finding that home’s back deck, from which
officers peered through window to observe a bloodied and unresponsive young
man, was part of the home’s curtilage); People v. Greene, 289 Ill. App. 3d 796,
799-800 (1997) (describing officers’ entry onto a screened porch to observe
defendant through the window and concluding the porch qualified as curtilage). In
such cases, the curtilage question does not govern an extended area for activities; it
determines whether the area acts as curtilage to shield the interior of the home. The
protection claimed by defendant in this case fits neatly within the home-shielding
curtilage cases. There is no claim defendant’s activities or possessions were outside
the home but within an area that should be protected as though it were the home.
Instead, defendant’s motion to suppress relies on the vantage point employed by
police to observe what was taking place within her apartment.
¶ 94 Somewhat complicating our analysis of this question is the Jardines Court’s
brevity in holding that front porch to be curtilage. “The front porch is the classic
exemplar of an area adjacent to the home and ‘to which the activity of home life
extends.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S.
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at 182 n.12 (finding that field of marijuana a mile from petitioner’s home was
unprotected “open fields” and not curtilage)). Consideration of the Dunn factors,
however, yields important similarities between the protection found in Jardines
and the protection claimed here. The front porch is, naturally, extremely close to
the house. There was no discussion in Jardines about any enclosure surrounding
the porch or the home. We can reasonably conclude the Court intended its curtilage
finding to apply to enclosed and unenclosed porches alike. The front door
obviously acts a passage into the house, and there is no further discussion of home
activities taking place there.
¶ 95 However, whether we presume the porch was enclosed or unenclosed, Jardines
could not have engaged in his cultivation of cannabis on the porch with any
expectation it would be “placed under the home’s ‘umbrella’ of Fourth Amendment
protection.” Dunn, 480 U.S. at 301. Jardines does not turn on protecting a zone
outside the house for activities and possessions. Instead, the relevant question in
Jardines was the vantage point of the officers on the curtilage and their actions in
observing Jardines’s activities within the home. The porch’s extreme proximity to
the house and its status as a primary entrance to the house are thus particularly
important. Viewed in this light, Jardines must be understood as a case in which the
curtilage acts as a shield. While the porch was deemed to be a “constitutionally
protected area,” the property-based fourth amendment interest to be vindicated was
centered within the home. Jardines, 569 U.S. at ___, 133 S. Ct. at 1415. “This right
would be of little practical value if the State’s agents could stand in a home’s porch
or side garden and trawl for evidence with impunity; the right to retreat would be
significantly diminished if the police could enter a man’s property to observe his
repose from just outside the front window.” Id. at ___, 133 S. Ct. at 1414.
¶ 96 Both proximity and acting as an entry to the home are equally present in
defendant’s case. In every relevant sense, defendant’s front door and landing
appear indistinct from Jardines’s front door and porch. Were this court to hold that
an apartment uniformly lacks fourth amendment curtilage, we would additionally
hold that those who live in apartments have less property-based fourth amendment
protection within their homes than those who live in detached housing. This
conclusion would, likewise, apply to those who live in duplexes, condominiums,
and all other forms of multiunit housing.
¶ 97 I would conclude that, where officers carry out a canine sniff of the door to an
apartment or other dwelling unit over which the defendant has exclusive control, a
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search is being carried out, and the fourth amendment applies. The fact that
defendant lived within a locked apartment building is helpful to her argument that
her front door and landing were curtilage, but not dispositive. The State notes that
another resident may grant police entry to the common areas of the apartment
building, but nothing indicates defendant’s fellow residents may give the police
license to carry out a dog sniff of the door. Further, there is no indication the front
door and porch in Jardines were anything other than physically open to the world.
Recognizing that the fourth amendment interest here centers within the home
likewise produces a uniform result for multiunit dwellings irrespective of whether
the unit’s door is within a locked building, within an unlocked building, or opens
directly onto outdoor private property. In such cases, the front door and area
immediately surrounding it must be viewed as “so intimately tied to the home itself
that it should be placed under the home’s ‘umbrella’ of Fourth Amendment
protection,” due to its extreme proximity to that core fourth amendment area and its
entry into that area. Dunn, 480 U.S. at 301.
¶ 98 Recognizing that the curtilage question in this case protects the core fourth
amendment area within the home does not, on the other hand, lead to a result that
every police entry into a common area of an apartment building will be a search. To
the extent a defendant might claim curtilage as an extended area for the activities of
the home, courts must recognize the individual facts and circumstances indicating
defendant shares that area with others. See, e.g., People v. Smith, 152 Ill. 2d 229,
245 (1992) (finding no search occurred because “the area where the officers
overheard defendant’s conversation was a common area shared by other tenants,
the landlord, their social guests and other invitees”; area was unlocked; defendant’s
voice was raised; and officers employed only their natural senses). Such shared
control directly impacts the license that may be granted to the police or public.
¶ 99 Police here exceeded any license offered to the public or that might have been
offered by one of defendant’s fellow tenants. Defendant herself neither granted nor
implied any license to approach with a drug-detecting dog. Her front door and
landing are, in all relevant respects, identical to the front door and porch in
Jardines. The fourth amendment interest to be vindicated here centers within her
apartment, and she employs the curtilage concept only as a shield for that core area.
These reasons all militate in favor of a finding that, under Jardines, police carried
out a search in violation of the fourth amendment with a warrantless dog sniff of her
apartment door.
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¶ 100 This approach yields a uniform result within the homes of multiunit residents
and likewise recognizes the degree to which they share space for activities and
possessions outside the home.
¶ 101 For the foregoing reasons, I specially concur.
¶ 102 JUSTICE THOMAS, dissenting:
¶ 103 I disagree with the majority’s holding that the common area of the hallway
landing outside of defendant’s apartment constituted curtilage under the
property-based trespass analysis of Florida v. Jardines, 569 U.S. ___, 133 S. Ct.
1409 (2013). The better view is that the concept of curtilage has no application to
the common areas of multiple-unit structures. See 1 Wayne R. LaFave, Search and
Seizure § 2.2(g), at 50; § 2.3(c), at 55 (5th ed. Supp. 2015). I would also reject
defendant’s alternative argument that she had a reasonable expectation of privacy
in the common area of the apartment building. The great weight of federal authority
holds that there is no reasonable expectation of privacy in the common areas of an
apartment building, even if it is locked or secured. See, e.g., United States v.
Nohara, 3 F.3d 1239 (9th Cir. 1993) (holding that defendant has no reasonable
expectation of privacy in common area of a secured apartment building); United
States v. Holland, 755 F.2d 253 (2d Cir. 1985) (same); United States v. Eisler, 567
F.2d 814 (8th Cir. 1977) (same).
¶ 104 I. Facts
¶ 105 Urbana police department’s Crimestoppers hotline received a tip that defendant
was selling two pounds of marijuana per week, had received shipments of
marijuana from her brother in California, and had sold ecstasy to the tipster’s
girlfriend. Officer Matthew Mecum went to defendant’s apartment building on
January 10, 2013, to confirm defendant’s address. The three-story, twelve-unit
building had two sides with two outer doors that led to two common area stairwells
that accessed six apartments per side, two per story. Defendant lived on the east
side of the building.
¶ 106 Officer Mecum knocked on the outer door to defendant’s side of the building
and a resident let him in. At the time, Mecum was wearing blue jeans and a winter
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jacket, and he did not display any indicia to show that he was a police officer.
Mecum observed a package addressed to defendant at apartment No. 10 from “Ben
Jones in Oakland, California.”
¶ 107 Later that night, Officer Michael Cervantes took a trained narcotics-detection
dog named Hunter to defendant’s apartment building. The common entrance that
accessed the east stairwell leading to defendant’s apartment was locked, but
another officer who was already inside opened the door for Cervantes. Once inside
the outer common door, there was nothing obstructing the path to the third-floor
landing.
¶ 108 Hunter alerted to the presence of drugs outside of defendant’s apartment door in
the common area of the third-floor landing. Located on that landing were the doors
for defendant’s apartment (unit No. 10), another apartment (unit No. 9) and a
storage compartment. Hunter was allowed to sniff in the common area near unit
No. 9 and in the common area near the two first-floor apartments. He did not alert
to the aroma of drugs at any of those other locations. 3
¶ 109 Officer Mecum prepared a complaint and affidavit for a search warrant that
included the Crimestoppers information, defendant’s past history with cannabis,
the information on her Facebook page, and the fact that Mecum had observed the
package addressed to defendant from California. A judge authorized the warrant.
During a subsequent search of defendant’s apartment, the police seized 1011.99
grams of cannabis, assorted drug paraphernalia and United States currency.
¶ 110 II. No Trespass of the Curtilage Occurred
¶ 111 Justice Kilbride, writing for a majority of this court, holds that the common area
of the landing outside of defendant’s apartment door qualifies as curtilage under
Jardines. Justice Kilbride concludes that this is so for several reasons. First, he
finds that the outside common door to the building had a locking mechanism and
the common stairwell behind it was therefore an area of “limited access” that was
“not accessible to the general public.” Supra ¶¶ 33, 37. And second, he finds it
significant that the officers entered “in the middle of the night.” Supra ¶ 33.
3
The dog did not search inside any of the apartments; he sniffed the air outside of them while
being walked through the common hallway.
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¶ 112 Both points relied upon by the majority—the locked common door and the
nighttime nature of the visit—are irrelevant to any discussion of the issue presented
in this case as to the scope of the curtilage. The crucial facts in Jardines were that
“[t]he officers were gathering information in an area belonging to Jardines and
immediately surrounding his house—in the curtilage of the house, which [the Court
has] held enjoys protection as part of the home itself. And they gathered that
information by physically entering and occupying the area to engage in conduct not
explicitly or implicitly permitted by the homeowner.” (Emphasis added.) Jardines,
569 U.S. at ___, 133 S. Ct. at 1414.
¶ 113 Here, in contrast to Jardines, the defendant as lessee of apartment No. 10 had
no right to explicitly or implicitly exclude the officers from physically entering or
occupying the area of the third-floor landing. “[T]he concept of curtilage has little
if any application to commercial structures or to multiple-unit [apartment]
dwellings,” and therefore a dog sniff in the common areas of such structures
“would likely be deemed a non-search” by the United States Supreme Court. 1
Wayne R. LaFave, Search and Seizure § 2.2(g), at 50 (5th ed. Supp. 2015). See also
Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007) (areas of outside individual
units of duplex not “curtilage” with respect to either unit if shared with occupants
of other unit); see also State v. Williams, 862 N.W.2d 831, 838 (N.D. 2015)
(interest in common hallway was not exclusive and therefore the hallway “was not
curtilage”); State v. Nguyen, 841 N.W.2d 676, 682 (N.D. 2013) (even though the
main entrances were locked and secured at all times and officer gained entry by
catching the door after another person gained entry, there was no search under
Jardines where dog alerted to drugs within a particular apartment because the
curtilage “concept is significantly modified when applied to a multifamily
dwelling.”).
¶ 114 Unlike in Jardines, the area in question here did not belong to defendant, nor
did she have exclusive control over it, and there was therefore no trespass as far as
defendant was concerned. Everyone understands that tenants of an apartment
building do not own or possess the common areas. The majority’s analysis ignores
that a large amount of people that defendant has no control over have access to the
common areas outside of defendant’s apartment door; the list includes the
occupants of the other 11 apartments and anyone they let in, plus the landlord and
anyone he lets in, plus anyone who is let in by someone who is already inside.
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¶ 115 The majority makes much of the notion that the area behind the locked common
door was not readily accessible to the public. Aside from being irrelevant, this does
not even appear to be true, as Officer Mecum, who went to the unit in plain clothes,
was let into the building by another tenant after simply knocking on the door. The
officer also no doubt could have easily gained access by following an occupant
through the door before it latched. See Nguyen, 841 N.W.2d at 678-79 (officer
gained access to the secured building by catching the door as an unidentified female
either exited or entered); see also 1 Wayne R. LaFave, Search and Seizure § 2.3(c),
at 59 n.145.70 (5th ed. Supp. 2015) (discussing Nguyen, 841 N.W.2d at 682, as
holding that because of the lack of any expectation of privacy in the area outside of
one’s apartment door, “the curtilage ‘concept is significantly modified when
applied to a multifamily dwelling’ ”). At any rate, the concept of curtilage does not
apply to an area that is not within a resident’s property rights.
¶ 116 For the same reason, it is irrelevant that the visit by Officer Cervantes and
Hunter occurred “in the middle of the night.” Justice Kilbride quotes language from
Justice Alito’s dissent in Jardines: “The officer ‘adhered to the customary path; he
did not approach in the middle of the night; and he remained at the front door for
only a very short period (less than a minute or two).’ ” Supra ¶ 43 (quoting
Jardines, 569 U.S. at ___, 133 S. Ct. at 1423 (Alito, J., dissenting, joined by
Roberts, C.J., Kennedy and Breyer, JJ.)). But this language quoted from the
Jardines dissent—that is now relied upon by Justice Kilbride—was written to show
that the officers in Jardines had a license or an implied invitation to enter onto the
curtilage of Jardines’s property to conduct a dog sniff despite the area being
curtilage. The quoted language was not written, as Justice Kilbride apparently
surmises, to settle a dispute as to whether the area in question was in fact curtilage.
All nine justices in Jardines agreed that the porch owned by the defendant in that
case was curtilage. In contradistinction to Jardines, the fact that the dog sniff in the
present case occurred in the common area outside of any area belonging to
defendant makes the time of day irrelevant because the area was not curtilage and
therefore a license was not required to satisfy the fourth amendment.
¶ 117 Another reason that the majority suggests for finding the common area of the
landing to be curtilage is based on the four factors set forth in United States v.
Dunn, 480 U.S. 294, 301 (1987). There, the Court stated that curtilage questions
should be resolved with particular reference to four factors: (1) the proximity of the
area claimed to be curtilage to the home; (2) whether the area is included within an
enclosure surrounding the home; (3) the nature of the uses to which the area is put;
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and (4) the steps taken by the resident to protect the area from observation by
people passing by. Id. The Court cautioned that it was not suggesting “that
combining these factors produces a finely tuned formula that, when mechanically
applied, yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these
factors are useful analytical tools only to the degree that, in any given case, they
bear upon the centrally relevant consideration—whether the area in question is so
intimately tied to the home itself that it should be placed under the home’s
‘umbrella’ of Fourth Amendment protection.” Id.
¶ 118 The majority calls the Dunn factors a “test” and concludes that all four weigh in
favor of finding that the landing was the curtilage of defendant’s apartment. Supra
¶¶ 34, 37. At the outset, I question the sufficiency of the Dunn factors to determine
whether a dog sniff in a common area of a multiunit dwelling is a search where the
tenants have a lessened expectation of privacy in such areas by virtue of their
neighbors and others’ right to use or occupy the same common area. See State v.
Williams, 2015 ND 103, ¶ 24, 862 N.W.2d 831 (“An analysis of the Dunn factors
regarding curtilage, alone, is insufficient to determine whether the drug sniff was a
search; a reasonable expectation of privacy analysis must also be conducted. It is
undisputed Williams [as a condominium owner] has a property interest in the
hallway, but his interest is not exclusive. *** [T]he common hallway of the
condominium building was available for the use of the other co-owners and their
guests and others having legitimate reasons to be on the premises, and Williams
cannot unilaterally exclude individuals from the area because his co-owners also
have a property interest in the shared space. [Citation.] *** [W]e conclude the
condominium building’s common hallway was not curtilage, and Williams had no
reasonable expectation that the shared space would be free from any intrusion.”).
Also, I would note that the United States Supreme Court has never used the Dunn
factors to find that an area not belonging to defendant’s home can be his curtilage.
See generally 1 Wayne R. LaFave, Search and Seizure § 2.2(g), at 50; § 2.3(c), at
55 (5th ed. Supp. 2015).
¶ 119 In any event, I disagree with the majority’s application of the Dunn factors and
would reach the exact opposite conclusion, finding that all four factors weigh in
favor of finding that the common landing area was not curtilage.
¶ 120 With respect to the first factor, the majority finds that the proximity of the
landing to defendant’s apartment strongly supports an inference that the landing be
treated as curtilage. I would not weigh this factor in favor of a finding of curtilage
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in this case, however, because the landing was not on defendant’s property and she
had no property right in it. And, although it was close to defendant’s apartment, it
was also close to another apartment and a storage area.
¶ 121 The remaining three factors all weigh heavily against the conclusion that the
common landing belonged to the apartment’s curtilage. The area was not included
within an enclosure that excluded others—any of the tenants of the building, the
landlord, their invitees and the officers in this case could have accessed the landing
and defendant could not exclude them. See People v. Lyles, 332 Ill. App. 3d 1, 7
(2002) (no reasonable expectation of privacy in apartment building common area);
State v. Nguyen, 2013 ND 252, 841 N.W.2d 676 (post-Jardines case where court
found that a dog sniff in the common area of a locked apartment building where dog
alerted on the defendant’s apartment door was not a search because defendant did
not have a reasonable expectation of privacy in the area and it was therefore not
curtilage); United States v. Scott, 610 F.3d 1009, 1016 (8th Cir. 2010) (dog sniff of
exterior doorframe of defendant’s apartment that occurred in common hallway did
not constitute a search because the sniff occurred in the common area where others
could be lawfully present); cf. United States v. Burston, 806 F.3d 1123 (8th Cir.
2015) (post-Jardines case that accepted the holding of Scott, distinguishing it from
the facts before it, which the Burston court characterized as involving the search of
an uncommon area six to ten inches from Burston’s window, which was prevented
from being a common area by a strategically placed bush and grill). In the present
case, there is no evidence that defendant put the landing to any use other than
accessing her apartment. Nor was there any evidence that her lease permitted any
other use or that any other use was feasible in light of the landing’s size and design.
Under these circumstances, the landing was not curtilage under the factors
enunciated in Dunn.
¶ 122 Justice Kilbride concludes his analysis on whether the landing should be treated
as curtilage by making the puzzling claim that “[e]ven the Jardines dissent made
observations that support our conclusion that the police conduct in this case
violated the fourth amendment.” Supra ¶ 42. Justice Kilbride’s claim is a real
head-scratcher because the issue in Jardines was whether the front porch of
defendant’s home was curtilage, not whether the common area of an apartment
building can be curtilage. Justice Kilbride’s claim becomes all the more startling,
however, given that the dissenters in Jardines actually told us how they felt about a
dog sniff of a common area of an apartment building:
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“The concurrence suggests that a Kyllo-based decision would be ‘much
like’ the actual decision of the Court, but that is simply not so. The holding of
the Court is based on what the Court sees as a ‘ “physical intrusion of a
constitutionally protected area.” ’ [Citation.] As a result, it does not apply when
a dog alerts *** in the corridor of a building to which the dog and handler have
been lawfully admitted.
The concurrences’s Kyllo-based approach would have a much wider reach.
When the police used the thermal imaging device in Kyllo, they were on a
public street, 533 U.S., at 29, and ‘committed no trespass.’ Ante, at 3.
Therefore, if a dog’s nose is just like a thermal imaging device for Fourth
Amendment purposes, a search would occur if a dog alerted while on a public
sidewalk or in the corridor of an apartment building. And the same would be
true if the dog was trained to sniff, not for marijuana, but for more dangerous
quarry, such as explosives or for a violent fugitive or kidnaped child. I see no
ground for hampering legitimate law enforcement in this way.
***
The conduct of the police officer in this case did not constitute a trespass
and did not violate respondent’s reasonable expectations of privacy. I would
hold that this conduct was not a search ***.” (Emphases added.) Jardines, 569
U.S. at ___, 133 S. Ct. at 1426 (Alito, J., dissenting, joined by Roberts, C.J.,
Kennedy and Breyer, JJ.).
¶ 123 The special concurrence of Chief Justice Garman in this case also finds the
common area of the landing and the exterior of defendant’s doorway to be
curtilage. Supra ¶ 99. Chief Justice Garman sets forth two fourth amendment
purposes at play in considering whether an area should be considered curtilage and
urges that “[t]he protection claimed by defendant in this case fits neatly within the
home-shielding curtilage cases.” Supra ¶ 93. But in the end it is clear that her
determination that the common area at issue in this case should be treated as the
curtilage of the apartment rests upon an egalitarian concern for creating privacy
rights for apartment dwellers on par with the occupants of single-family homes
regardless of the significant legal differences between the two situations. See supra
¶ 96 (“Were this court to hold that an apartment uniformly lacks fourth amendment
curtilage, we would additionally hold that those who live in apartments have less
property-based fourth amendment protection within their homes than those who
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live in detached housing.”). The problem with the special concurrence’s approach
is that apartment doors that open to common areas of a multiunit apartment
building have less home-shielding protection by nature than single-family home
properties do. Odors, sounds and activities may be detected from the vantage point
of the common areas of the apartment building where others may not be excluded. 4
I would submit that the reaction to this reality should not lie in morphing the
concept of curtilage beyond its rightful parameters.
¶ 124 III. No Reasonable Expectation of Privacy
¶ 125 Having concluded that the common stairway and landing of the apartment
complex is not the curtilage of defendant’s apartment, I would also find that
defendant did not have a reasonable expectation of privacy in the odors that waft
from inside her apartment to places that others may lawfully stand. The
overwhelming weight of federal authority is in agreement with that proposition.
See United States v. Scott, 610 F.3d 1009, 1015-16 (8th Cir. 2010) (dog sniff of
exterior door frame of defendant’s apartment door occurring in common hallway
did not violate defendant’s reasonable expectation of privacy); United States v.
Nohara, 3 F.3d 1239 (9th Cir. 1993) (holding that defendant had no reasonable
expectation of privacy in the common area of a secured apartment building);
United States v. Acosta, 965 F.2d 1248 (3d Cir. 1992) (same result with unsecured
building); United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991) (same);
United States v. Holland, 755 F.2d 253 (2d Cir. 1985) (same result with secured
building); United States v. Eisler, 567 F.2d 814 (8th Cir. 1977) (same); United
States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976) (holding that defendant had no
reasonable expectation of privacy in parking garage of condominium). The Sixth
Circuit appears to be the only circuit that recognizes a reasonable expectation of
4
Chief Justice Garman leaves it somewhat ambiguous as to the extent of the area she would find
to be constitutionally protected. At one point, she states that “where officers carry out a canine sniff
of the door to an apartment or other dwelling unit over which the defendant has exclusive control, a
search is being carried out.” Supra ¶ 97. Later, she states it is the “front door and area immediately
surrounding it” (id.), and the “front door and landing” (id. ¶ 99) that are constitutionally protected. I
simply disagree that the landing or any of the area outside of defendant’s door was under
defendant’s exclusive control in this case. Moreover, there is no evidence in the record that Hunter
was actually allowed to touch defendant’s door with his nose. Additionally, it may be possible that a
trained officer can tell if the dog was alerting to the presence of drugs before its nose hits the door or
it begins to scratch it. At any rate, I would not find the exterior of the apartment door to be curtilage.
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privacy in the hallway or common areas of a locked apartment building. See United
States v. Carriger, 541 F.2d 545 (6th Cir. 1976). The majority position among the
states that have considered the question also appears to be solidly in favor of
finding that there is no reasonable expectation of privacy in the common areas of a
locked apartment building. State v. Nguyen, 2013 ND 252, ¶ 9, 841 N.W.2d 676
(collecting cases); State v. Davis, 732 N.W.2d 173 (Minn. 2007).
¶ 126 The rationale for holding that there is no legitimate expectation of privacy that
protects a renter from a dog sniff in the common area of an apartment building
outside the renter’s door has been set forth in numerous cases. The rejected
arguments of the defendants in those cases were along the lines that the defendants’
privacy interest inside their residences was intruded upon because police conducted
dog sniffs to detect something therein. The defendants usually relied upon Kyllo v.
United States, 533 U.S. 27 (2001), where the Supreme Court found that law
enforcement’s use of a thermal imaging device outside the home, but directed into
the home, was a search for fourth amendment purposes.
¶ 127 Courts have responded by noting that no legitimate expectation of privacy is
violated by police conduct that can reveal only information about contraband and
nothing about arguably private rights. United States v. Jacobsen, 466 U.S. 109,
123-24 (1984); United States v. Place, 462 U.S. 696, 707 (1983) (canine inspection
of luggage at airport). Drug-sniffing dogs, unlike thermal imaging devices, are not
“capable of detecting lawful activity” such as the “intimate details” in the home.
Illinois v. Caballes, 543 U.S. 405, 409-10 (2005) (canine inspection of an
automobile during a traffic stop) (clarifying Kyllo). The resident’s interest in the
inside of his dwelling was intruded in Kyllo because the device used was capable of
detecting lawful as well as unlawful activity going on inside the residence. Here,
defendant does not make any claim that the dog used outside her apartment was
capable of detecting anything beyond the odor of illegal drugs emanating from
inside the apartment to the outside. A dog sniff does not expose noncontraband that
would otherwise remain hidden from public view, but “discloses only the presence
or absence of narcotics.” Place, 462 U.S. at 707. A dog sniff is considered sui
generis because there is “no other investigative procedure that is so limited both in
the manner in which the information is obtained and in the content of the
information revealed by the procedure.” Id. Kyllo is therefore distinguishable, and
it can be easily concluded that the likelihood that the use of a drug-sniffing dog in
the common area of an apartment building will compromise any interest in privacy
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is too remote to characterize the use of the dog as a violation of a reasonable
expectation of privacy. See Caballes, 543 U.S. at 409-10.
¶ 128 I would also note that the purpose of an apartment building having locking
exterior doors leading into the common areas is not to provide privacy, but to
provide safety for the tenants. Eisler, 567 F.2d at 816. In other words, locked
common doors are meant to keep the crime out, not the police out. If there were no
murders, rapes or robberies in the world, the current fashion of automatic-locking
apartment doors would likely disappear. “An expectation of privacy necessarily
implies an expectation that one will be free of any intrusion, not merely
unwarranted intrusions.” Id. Here, it is clear that others—including the landlord,
other tenants and their invitees—had the right to use the common stairwell,
including the third-floor landing outside defendant’s apartment door. Accordingly,
the officer’s entry into that area with Hunter did not violate any reasonable
expectation of privacy and was not a search.
¶ 129 Finally, I address the special concurrence’s statement “that another resident
may grant police entry to the common areas of the apartment building, but nothing
indicates defendant’s fellow residents may give the police license to carry out a dog
sniff” near defendant’s door. Supra ¶ 97. As I have already explained, the dog sniff
occurred in the common area of the third-floor landing that cannot be considered
curtilage and there was no reasonable expectation of privacy, and therefore no
license was required. I might add, however, that apartment dwellers living in close
quarters with drug dealers or manufacturers would no doubt prefer to see an
occasional police dog in their common hallway. The same would be even more true
“for more dangerous quarry, such as explosives or for a violent fugitive or kidnaped
child.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1426 (Alito, J., dissenting, joined by
Roberts, C.J., and Kennedy and Breyer, JJ.). The majority is wrongly foreclosing
this useful and legitimate law enforcement tool.
¶ 130 IV. Conclusion
¶ 131 I would hold that the use of the drug-sniffing dog in the common area outside of
defendant’s apartment door did not constitute a trespass onto the curtilage and was
not a violation of defendant’s reasonable expectation of privacy. The police
therefore did not conduct an illegal search, and there was no violation of the fourth
amendment. Accordingly, I dissent.
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¶ 132 JUSTICE KARMEIER joins in this dissent.
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