People v. Redman ( 2008 )

NO. 4-06-0180 Filed 10/31/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Clark County
RONALD L. REDMAN, ) No. 05CF30
Defendant-Appellee. )
) Honorable
) Tracy W. Resch,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In January 2006, the trial court granted defendant
Ronald L. Redman's motion to suppress. The State appeals,
arguing the court erred because (1) the evidence soon would have
been found by lawful means, unrelated to the alleged misconduct;
(2) the officers had reasonable suspicion that defendant, who was
on probation, was involved in manufacturing methamphetamine and,
therefore, the officers could lawfully search defendant and the
residence; (3) the officers proceeded reasonably and with greater
restraint than called for by the fourth amendment; (4) the
officers had probable cause to arrest defendant and the others at
the residence; and (5) the consents to search the residence were
voluntarily and validly given.
We reverse and remand. The officers had probable cause
to arrest defendant once he exited the residence because (1) a
strong odor associated with methamphetamine manufacturing
emanated from the property; (2) the officers observed items
associated with methamphetamine manufacturing in an open garbage
can from a lawful vantage point; and (3) the officers knew
defendant sold, used, and manufactured methamphetamine.
I. BACKGROUND
In April through December 2005, the State charged
defendant with various offenses arising out of events occurring
in April 2005: (1) unlawful manufacture of a controlled
substance, less than 15 grams of a substance containing
methamphetamine (720 ILCS 570/401(d) (West 2004)) (count I); (2)
unlawful possession of a controlled substance, less than 15 grams
of a substance containing methamphetamine (720 ILCS 570/402(c)
(West 2004)) (count II); (3) unlawful manufacture of a controlled
substance, 100 grams or more but less than 400 grams of a
substance containing methamphetamine (720 ILCS 570/401(a)(6.5)(B)
(West 2004)) (count III); (4) unlawful possession of a controlled
substance, 100 grams or more but less than 400 grams of a
substance containing methamphetamine (720 ILCS 570/402(a)(6.5)(B)
(West 2004)) (count IV); and (5) unlawful delivery of a
controlled substance, less than 15 grams of a substance
containing methamphetamine (720 ILCS 570/401(d) (West 2004))
(count V).
In December 2005, defendant filed a motion to suppress
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evidence illegally seized from a residence located at 205 East
Harrison, Casey, Illinois. Defendant argued the officer(s) (1)
illegally entered the rear yard; (2) improperly searched a trash
can within the curtilage of the home and seized items therein
without a warrant; (3) illegally searched the shed without
authority, which led to illegal seizure of items from the shed;
(4) arrested defendant as a result of the illegal search and
seizure; and (5) obtained consent to search after the illegal
search and seizure of items, thereby rendering the consent the
"fruit of the poisonous tree."
At the hearing, defendant called Officers Richard
Shutter and Bill Brown, both with the Clark County sheriff's
department, to testify. Both officers testified that they had
received training regarding methamphetamine laboratories and were
familiar with the odor associated with methamphetamine production
based on their training and experience.
Officer Shutter testified that on April 3, 2005, at
approximately 6:50 a.m., he was on duty patrolling the vicinity
of 205 East Harrison. Officer Shutter routinely patrolled that
area because he knew an individual with a history of
manufacturing methamphetamine lived three or four houses west of
the house at 205 East Harrison.
Pictures of the home at 205 East Harrison show a
driveway on the east side of the house leading to a detached one-
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car garage at the end of the driveway. The back of the garage
has a shed that appears added on to the garage. The front of the
house has an open front porch.
Officer Shutter testified he was driving his patrol car
with the windows up and the heater on when he detected a strong
chemical odor that he knew was related to methamphetamine
manufacturing. He described the odor as one caused by the
reaction of lithium and anhydrous ammonia during the
methamphetamine-manufacturing process. Officer Shutter exited
his vehicle and determined the odor was coming from 205 East
Harrison but could not tell what portion of the residence emitted
the odor.
Officer Shutter did not know who lived at the address.
He called dispatch to run the license plates on the two vehicles
parked in the driveway. One vehicle belonged to Julie Griffin, a
person unknown to Officer Shutter. The other vehicle belonged to
defendant. Officer Shutter had previous information that
defendant was involved in manufacturing, using, and selling
methamphetamine.
Officer Shutter tried to call for assistance from the
sheriff and the "task force man" but was unable to contact
either. Officer Shutter then called Officer Brown, who was
scheduled to come on duty at 8 a.m.
When Officer Brown arrived at approximately 7:30 a.m.,
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he "immediately reacted to the odor." Officer Brown described
the odor as a chemical odor, the odor of ether or fuel mixed with
anhydrous ammonia. The officers decided to knock on the front
door to further investigate. Officer Shutter planned to advise
the occupants of the odor, ask them to come outside, secure the
residence, and possibly seek consent to search. Officer Shutter
also testified he intended to arrest the people in the house.
Likewise, Officer Brown testified he approached the house
intending to further investigate and also arrest the occupants of
the house.
Officer Shutter asked Officer Brown to cover the rear
of the residence in case any of the occupants tried to flee and
also to provide cover for Officer Shutter. Officer Brown
testified that as he walked down the driveway toward the back of
the house, he heard voices in the residence. As he approached
the southeast, rear corner of the house, the odor became
stronger. Officer Brown observed four trash cans that Officer
Brown did not see until he reached the back of the house. The
garbage cans were approximately two steps from the driveway,
against the back of the house, and just east of the rear porch
steps.
Before Officer Shutter made it to the front door,
Officer Brown called for him. Officer Shutter joined Officer
Brown at the rear of the house. Officer Shutter explained that
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the officers did not have to enter the rear yard to reach the
garbage cans. Anyone who drove in the driveway would conceivably
approach the back door the way Officer Brown had approached the
back door because a path--not paved but an area where the grass
was not growing--was present from the driveway to the steps at
the back door. The rear of the house contained no fences.
Three of the garbage cans were covered with lids. The
fourth garbage can had the lid crammed down inside of the can,
perpendicular to the ground. Officer Brown could see in the
garbage can without moving anything. Officer Brown observed
"meth trash," which he explained included "masks" and plastic
pitchers with a whitish, dry film on the inside. The officers
believed the garbage can was the source of the odor. The
officers did not seize the items contained in the garbage can.
Officer Shutter returned to the front of the house and
knocked on the front door. No one responded to the knocking.
Officer Shutter asked dispatch to call the residence. Officer
Shutter could hear the phone ringing but no one answered the
phone. Officer Shutter knocked on the front door for 10 to 15
minutes. Officer Shutter announced his name and office and
specifically asked for defendant to open the door. Officer
Shutter did not attempt to enter the residence because he was not
sure that he could enter. Officer Shutter believed that given
defendant's vehicle and reported methamphetamine involvement, a
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strong possibility existed that defendant was in the residence
and was involved in manufacturing methamphetamine with other
individuals in the residence.
After receiving no answer to the knocks on the door,
the officers retreated and set up a perimeter. Officer Shutter
called the State's Attorney and requested the process be started
for a search warrant to search the residence, vehicles, and
outbuildings.
Officer Shutter then called Casey officer Bob Mall.
Shutter also received information--he could not remember how--
that defendant was on probation in Coles County. Shutter called
the Coles County sheriff's department and received the name of
defendant's probation officer, Steve Kelly. Officer Shutter
asked dispatch to contact defendant's probation officer. Officer
Shutter believed that defendant, as a probationer, was subject to
warrantless searches, and Officer Shutter believed he would be
able to enter the residence with the probation officer, so long
as he had reasonable suspicion. Officer Shutter thought he had
reasonable suspicion to enter the residence with defendant's
probation officer due to the odor.
While waiting for Kelly to arrive, Officer Shutter
walked to the shed attached to the back of the garage and looked
into a window opening that had no glass. Officer Shutter could
see a tank he believed might be used for anhydrous ammonia and
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rubber hoses. Officer Shutter took photographs of the residence
from all angles, the garbage can with the methamphetamine trash,
and the shed.
When Kelly arrived, he informed Officer Shutter that
the address was not defendant's probation address. Kelly told
Officer Shutter he could not do a probation check on defendant at
that address.
Officer Shutter drove his car into an unpaved alley
behind the house. The garbage cans and shed were visible from
the alley. The other officers took positions at various points
around the residence. Everyone waited.
At approximately 10:30 a.m., Chief of Police Wally
Whitton came to the scene. Chief Whitton informed Officer
Shutter he had a "somewhat cooperative relationship" with
defendant and asked if he could try to get defendant out of the
residence. After several attempts, defendant returned Chief
Whitton's telephone call. At approximately 11:25 a.m., Chief
Whitton was able to convince defendant and the others to come out
of the residence. The other occupants in the house included
Griffin, Matt and Nicki Hensley, and two small preschool-age
children (Griffin's daughter and Nicki's daughter).
Once the four individuals exited the residence, Officer
Shutter placed them under arrest for manufacturing
methamphetamine. Officer Shutter testified he would have
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arrested them based on the odor even if he had not known about
the items in the garbage can. Officer Shutter handcuffed the
four individuals and placed them on the sidewalk. The State's
Attorney then called and told Officer Shutter to be ready to go
before a judge in 30 minutes. Officer Shutter informed the
State's Attorney that the four individuals had just exited the
residence. The State's Attorney suggested that Officer Shutter
try to obtain written consent to search.
Officer Shutter obtained a written statement from all
four people to search the residence, vehicles, and the
outbuildings. Officer Shutter denied using any force to obtain
their consents. Officer Shutter testified he told them they did
not have to consent. Officer Shutter also told the individuals
that he had been in contact with the State's Attorney, and the
State's Attorney informed him that a judge had been contacted and
would be ready in about a half hour. Officer Shutter told the
individuals that if they gave consent to search, he would mention
their cooperation in his report. If they did not give consent to
search, they would have to wait while Officer Shutter met with
the State's Attorney to see if the judge would approve the
warrant, in which case he would mention in his report they were
uncooperative.
During the search, the officers found a rent receipt
dated October 2004 signed by Dean Roberts for rent from Griffin
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and defendant. Officer Shutter also found mail with defendant's
name and the 205 East Harrison address, as well as clothing that
belonged to a male approximately defendant's size. Officer
Shutter believed defendant told him defendant lived there.
Griffin later told Officer Shutter that defendant had been living
with her for several months.
The officers searched every room of the house. Officer
Shutter saw a chemical stain on the basement floor. Also in the
basement, Officer Shutter observed pots and pans that appeared to
have been freshly washed and matched the size of the stains on
the basement floor. Officer Shutter seized from the basement two
metal pots, two containers of drain cleaner, salt, a glass Ball
jar, dust mask, duct tape, and three pairs of wire cutters.
Officer Shutter seized from the kitchen coffee filters and
aluminum foil. In the wastebasket, Officer Shutter found used
coffee filters, which he described as typically being used in the
filtering process of manufacturing methamphetamine. The
filtering phase involves "separating the pseudoephedrine, the
ephedrine from the tablet." Officer Shutter explained that the
pills are red, resulting in a pinkish residue. The coffee
filters contained white and pinkish powder.
Officer Shutter also found in the wastebasket paper
towels containing red pill residue, used foil inside a crushed
pop can, a broken glass Ball jar, and orange-scented Pine-Sol
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that had been poured in the pop can. Officer Shutter also seized
the items from the garbage can outside, which included plastic
pitchers. From the shed, Officer Shutter seized a stainless
steel tank that had not been altered and had no odor of anhydrous
ammonia and two pieces of rubber hose--known to be used for
stealing ammonia--that also contained no odor of ammonia. A
metal valve handle was seized from inside Matt Hensley's pants.
Officer Shutter did not find any methamphetamine and believed the
individuals got rid of it during the 4 1/2 hours it took to get
them out of the house.
After getting information from the four individuals
after their arrest, the officers obtained a search warrant the
next day and returned to search the property. As a result of the
second search, the officers seized burnt foil, a crushed aluminum
can containing two Ziploc bags with unknown residue, and a gray
ink "tooter" containing what was suspected to be methamphetamine.
(Officer Shutter did not define the term "tooter.") In the
basement, the officers found empty gallon containers of Ozark
Trails campfire fuel and, from behind a false wall, a gallon
container of Liquid Fire drain cleaner.
The owner of the uninhabited property next door, "Mr.
Funk," gave the officers permission to search a shed on his
property. The officers seized an altered oxygen tank. The valve
had turquoise-colored corrosion typical of a container used for
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anhydrous ammonia. The officers also seized a fire extinguisher,
located next to the oxygen valve, with a nylon-like gym bag or
carry satchel.
On January 27, 2006, the trial court issued its ruling
granting the motion to suppress. The court concluded that no
exception to the warrant requirement was shown to authorize a
warrantless search of the dwelling and the curtilage.
Specifically, the court found that (1) because the search of the
house and the curtilage was unlawful, the court need not address
constitutional issues raised by the "walk around"; (2) the
special-needs (probation) exception did not apply because the
State offered no evidence of a court order that would serve as
grounds for a probationary search; (3) the administrative-search
exception did not apply because in the 4 1/2 hours that elapsed
between the detection of the odor and the search, the officers
took no action suggesting they believed the public was in
imminent danger from an operating laboratory; (4) the plain-view
exception did not apply because, even if the visual inspection of
the garbage can constituted a plain-view search, that did not
excuse the warrant requirement; (5) the search-incident-to-arrest
exception did not apply because the officers had no probable
cause to arrest and, even if the persons in the house were
subject to arrest, the exception does not support a warrantless
search of the dwelling and the curtilage; and (6) the consent
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exception did not apply because the arrests of defendant and the
others lacked probable cause and were therefore illegal. The
court also noted that the odor from the garbage can would have
justified issuance of a search warrant to seize the garbage. The
court opined that the officers should have watched the garbage
can while applying for the search warrant to observe any person
who approached the can and demonstrated a possessory interest
linking them to the evidence in the garbage can.
The State filed its certificate of impairment, and this
appeal followed.
II. ANALYSIS
On appeal, the State argues the trial court erred by
suppressing the evidence because (1) the evidence would have soon
been found by lawful means because (a) the officers had
reasonable suspicion that defendant, who was on probation, was
involved in manufacturing methamphetamine and, therefore, the
officers could have lawfully searched defendant and his
residence; and (b) a request for a search warrant was in progress
and would have been granted based on experienced officers having
detected an odor associated with methamphetamine manufacturing;
(2) the officers proceeded reasonably and with greater restraint
than called for by the fourth amendment; (3) the odor gave the
officers probable cause to arrest defendant and the others at the
residence; and (4) defendant's and Griffin's consents to search
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the residence were voluntarily and validly given.
Defendant argues as follows: (1) odor alone did not
provide probable cause for the officers to enter onto the
property and search the house and the curtilage without a
warrant; (2) no exigent circumstances justified the warrantless
search; (3) the consent to search was involuntary because the
officers lacked probable cause to arrest any of the adults in the
house; (4) the probationer-warrantless-search exception does not
apply because defendant's probation order and conditions were not
entered into evidence; and (5) the inevitable-discovery doctrine
does not apply because (a) it cannot be assumed a judge would
have issued a search warrant and (b) a search warrant would not
have been based on an independent line of investigation.
We agree with the State. The officers observed the
items contained in the garbage from a lawful vantage point. That
evidence, along with the evidence that defendant's vehicle was
parked in the driveway, defendant was known to manufacture, sell
and use methamphetamine, and the odor coming from the garbage can
was associated with methamphetamine manufacture, gave the
officers probable cause to arrest defendant. The officers
arrested defendant in a public place and did not illegally enter
the residence. A search of the residence did not occur until
consent had been obtained.
A. Standard of Review
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The review of a trial court's ruling on a motion to
suppress involves mixed questions of fact and law. People v.
Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003). This
court gives great deference to the trial court's factual findings
and will reverse those findings only if they are against the
manifest weight of the evidence. Gherna, 203 Ill. 2d at 175, 784
N.E.2d at 805. However, this court reviews de novo the trial
court's legal determination of whether suppression is warranted
under those facts. Gherna, 203 Ill. 2d at 175, 784 N.E.2d at
805.
In this case, the State does not challenge the trial
court's factual findings but argues suppression was not warranted
under those facts. Therefore, our review is de novo.
B. The Officers Did Not Violate the Fourth Amendment's
Prohibition Against Unreasonable Searches and Seizures
The fourth amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated." U.S. Const., amend. IV. Likewise, under our state
constitution, "[t]he people shall have the right to be secure in
their persons, houses, papers[,] and other possessions against
unreasonable searches[] [and] seizures." Ill. Const. 1970, art.
I, §6. As recently stated by this court in People v. Leggions,
382 Ill. App. 3d 1129, 1132, 890 N.E.2d 700, 704 (2008):
"We interpret article I, section 6, in 'lim-
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ited lockstep' with the fourth amendment.
People v. Caballes, 221 Ill. 2d 282, 313, 851
N.E.2d 26, 44 (2006) (reaffirming the 'lim-
ited lockstep' doctrine). 'Under this ap-
proach, [Illinois courts] will "look first to
the federal constitution, and only if federal
law provides no relief [will they] turn to
the state constitution to determine whether a
specific criterion--for example, unique state
history or state experience--justifies depar-
ture from federal precedent."' Caballes, 221
Ill. 2d at 309, 851 N.E.2d at 42-43, quoting
L. Friedman, The Constitutional Value of
Dialogue and the New Judicial Federalism, 28
Hastings Const. L.Q. 93, 104 (2000)."
In this case, neither of the parties argues for a
departure from federal precedent on the ground that article I,
§6, of the Illinois Constitution requires a different outcome
than the fourth amendment. Therefore, this court will interpret
the quoted provisions from the two constitutions as having the
same meaning and effect.
1. The Initial Entry Onto the Property
Was for a Legitimate Purpose and Officers Lawfully
Observed the Contents of the Garbage Can
In the case sub judice, the trial court found it
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unnecessary to determine whether the police officers' original
"walk-around *** was compliant with the [f]ourth [a]mendment."
The court noted that the garbage can was not searched during the
initial "walk-around" but only later after the full search of the
residence. The court concluded that, given its conclusion that
the search of the house and curtilage was unlawful, it was
unnecessary to address the constitutional issues raised by the
walk-around. We disagree and conclude this court must determine
whether the officers lawfully approached the house and lawfully
observed the contents of the garbage can.
An officer may lawfully approach the front door of a
residence to conduct an investigation--referred to by many courts
as a "knock and talk"--so long as the officer enters an area
impliedly open to the public. See United States v. LePage, 477
F.3d 485, 488 (7th Cir. 2007) (finding the officers did not act
unreasonably when they walked onto the porch of the home and
observed a partially open duffel bag containing a shotgun);
United States v. Walters, 529 F. Supp. 2d 628, 637 (E.D. Tex.
2007) (finding that the fourth amendment is not implicated when
an officer visits a house in the same lawful way that an ordinary
citizen would). An officer may go beyond the front door to
investigate by approaching the back door of a residence--either
when no one answers a knock on the front door or where a legiti-
mate reason is shown for approaching the back door. See People
- 17 -
v. Hunley, 313 Ill. App. 3d 16, 24, 728 N.E.2d 1183, 1193 (2000)
(finding no violation of the fourth amendment where the police
officers peaceably entered common backyard and open back porch to
investigate complaints received about occupants of the apart-
ment); see also, e.g., VanWinkle v. State, 764 N.E.2d 258, 264
(Ind. App. 2002) (finding the defendant had no reasonable expec-
tation of privacy in the front and rear doors of the mobile
home); Hardesty v. Hamburg Township, 461 F.3d 646, 654 (6th Cir.
2006) (finding that the decision to proceed around the house and
seek a back door after receiving no response to a knock at the
front door was within the scope of the "knock and talk"). In
this case, Officer Brown proceeded to the back of the house in
case the occupants attempted to leave from the rear and Officer
Shutter needed protection. Therefore, Officer Brown had a
legitimate reason for approaching the back door.
According to their testimony, Officer Shutter and
Officer Brown approached the house to knock on the front door
either as part of an investigation or to arrest the occupants of
the house. Either reason was a legitimate purpose for being on
the property (so long as the officers had probable cause to
arrest the occupants of the house, an issue discussed further
below). See People v. Dennison, 61 Ill. App. 3d 473, 478, 378
N.E.2d 220, 224 (1978) (finding the officers were on the property
for a legitimate purpose when their presence was for the purpose
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of either investigating the defendant about an abandoned car seen
on the property the day before or to place the defendant under
arrest where the officers had probable cause to do so based on
what they observed from the sidewalk before approaching the front
door); but see United States v. Khut, 490 F. Supp. 2d 35, 40 (D.
Mass. 2007) (holding that "investigating officers may not create
exigent circumstances by choosing not to get a warrant, making
their presence known by knocking-and-announcing, and then claim-
ing that a warrantless search is necessary to avoid destruction
of evidence").
Once an officer is legitimately on the property, he or
she may properly observe any "evidence lying about in the open."
Dennison, 61 Ill. App. 3d at 477, 378 N.E.2d at 224. A search
does not occur when officers observe what is in open view.
People v. Berg, 67 Ill. 2d 65, 68, 364 N.E.2d 880, 881-82 (1977);
see also, e.g., City of Decatur v. Kushmer, 43 Ill. 2d 334, 338,
253 N.E.2d 425, 428 (1969) (finding no search occurred where the
officials entered the land to photograph that which could be
observed from the public view). The ability to observe items in
plain view extends to odors. See People v. Wright, 41 Ill. 2d
170, 174, 242 N.E.2d 180, 183 (1968) (holding that the "plain[-]
view doctrine has been applied to anything which an officer
becomes aware of by use of his five senses while in a lawful
position").
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Therefore, when Officer Brown approached the back door
and smelled the strong odor, consistent with methamphetamine
manufacturing, emanating from the open garbage can, he lawfully
peered inside the open garbage can. Such action constituted
neither a search nor a seizure. Specifically, defendant did not
have a reasonable expectation of privacy in the contents of the
garbage can because the lid was pushed down, perpendicular to the
ground, into the garbage can, exposing the contents to anyone who
passed by the garbage can on his or her way to the back door.
To summarize, the officers' decision to approach the
house and manner in which they did so were reasonable. Officer
Shutter noticed the odor associated with methamphetamine produc-
tion while driving in his vehicle with his windows rolled up,
thus indicating the odor was very strong. Defendant's vehicle
was in the driveway of the home, and Officer Shutter knew defen-
dant was involved with using, selling, and manufacturing metham-
phetamine. Approaching the home from the front and the back for
safety purposes was also reasonable and proper. Officer Brown
walked along a path open to visitors when approaching the back
door. While walking along that path, he lawfully smelled and
visually observed the open garbage can emanating an odor associ-
ated with methamphetamine manufacturing and containing what
appeared to be "meth trash."
2. The Officers Had Probable Cause To Arrest Defendant
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Having determined the officers legally approached the
residence and observed the contents of the open garbage can, the
next determination is whether the officers had probable cause to
arrest defendant without a warrant.
A warrantless arrest may be conducted by police if they
have probable cause to believe that the person to be arrested has
committed or is committing an offense. 725 ILCS 5/107-2(1)(c)
(West 2004); People v. McGee, 373 Ill. App. 3d 824, 830-31, 869
N.E.2d 883, 889 (2007). The Illinois Supreme Court has stated:
"Probable cause exists when the totality of
the facts and circumstances known to the
officers is such that a reasonably prudent
person would believe that the suspect is
committing or has committed a crime. [Cita-
tions.] Whether probable cause is present is
governed by common-sense considerations [ci-
tations], and the calculation concerns '[t]he
probability of criminal activity, rather than
proof beyond a reasonable doubt.'" People v.
Montgomery, 112 Ill. 2d 517, 525, 494 N.E.2d
475, 477-78 (1986), quoting People v. Tisler,
103 Ill. 2d 226, 236, 469 N.E.2d 147, 152
(1984).
This court reviews a ruling on a motion to suppress
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involving probable cause de novo. People v. Jackson, 372 Ill.
App. 3d 112, 121, 865 N.E.2d 195, 203 (2007). Upon review, this
court "must examine 'the events leading up to the arrest, and
then decide "whether [those] historical facts, viewed from the
standpoint of an objectively reasonable [police] officer, [sup-
port a finding of]" probable cause.'" McGee, 373 Ill. App. 3d at
831, 869 N.E.2d at 890 (2007), quoting Maryland v. Pringle, 540
U.S. 366, 371, 157 L. Ed. 2d 769, 775, 124 S. Ct. 795, 800
(2003), quoting Ornelas v. United States, 517 U.S. 690, 696, 134
L. Ed. 2d 911, 919, 116 S. Ct. 1657, 1661-62 (1996).
In this case, the officers had probable cause to arrest
defendant. First, the officers had probable cause to believe
that the crime of manufacturing methamphetamine was or had
recently been committed. Officer Shutter and Officer Brown
smelled a strong odor consistent with methamphetamine manufactur-
ing coming from the garbage can located up against the back of
the house. See People v. Stout, 106 Ill. 2d 77, 87, 477 N.E.2d
498, 502 (1985) ("A police officer's detection of controlled
substances by their smell has been held to be a permissible
method of establishing probable cause"). The odor was so strong
that Officer Shutter first noticed it while driving in the
neighborhood with the windows of his patrol car shut. Both
Officer Shutter and Officer Brown were familiar with methamphet-
amine manufacturing and the odor produced by such manufacturing.
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Both officers testified that the smell coming from the trash can
was consistent with the manufacture of methamphetamine. The
odor, along with the observation of the "meth trash" in the
garbage can up against the back of the house gave the officers
probable cause to believe the crime of manufacturing methamphet-
amine was occurring or had recently occurred at the residence.
The officers also had probable cause to believe that
defendant was the one who committed the crime. A vehicle regis-
tered to defendant was parked in the driveway, which suggested
that defendant was in the home. Officer Shutter was familiar
with defendant and knew him to be involved in using, selling, and
manufacturing methamphetamine.
The trial court found that the officers lacked probable
cause to arrest defendant because no evidence connected defendant
to the items seen in the garbage can. In the typical garbage
case, officers seize and search garbage placed out at the curb
for pickup. See California v. Greenwood, 486 U.S. 35, 37, 100 L.
Ed. 2d 30, 34, 108 S. Ct. 1625, 1627 (1988) (holding that the
fourth amendment does not prohibit warrantless search and seizure
of garbage left for collection outside the curtilage of the
home). Officers typically may not obtain a search warrant of the
residence absent some evidence tying the garbage to the resi-
dence, such as observing an occupant of the residence place the
garbage at the curb for pickup or finding in the trash items
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tying the trash to the residence, such as mail addressed to the
residence. See People v. Stage, 337 Ill. App. 3d 242, 244, 785
N.E.2d 550, 551 (2003) (probable cause to issue a search warrant
of a residence exists where something connects the garbage to the
residence); People v. Balsley, 329 Ill. App. 3d 184, 187, 769
N.E.2d 153, 156 (2002) (if garbage is left curbside, officers
need evidence tying the garbage to the house to obtain a search
warrant for the house). Once a person terminates his or her
privacy interest in the trash by placing it out at the curb,
anyone can access it and deposit incriminating items. See People
v. Burmeister, 313 Ill. App. 3d 152, 155, 728 N.E.2d 1260, 1264
(2000) (holding that the officer could use evidence obtained in a
garbage can to obtain a search warrant only if the warrant
application established probable cause that the curbside evidence
came from the residence to be searched); see also United States
v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991) (finding expecta-
tion of privacy unreasonable because of the "common practice of
scavengers, snoops, and other members of the public in sorting
through garbage").
In this case, the garbage can was up against the back
of the house, not visible from the sidewalk at the front of the
house. See United States v. 987 Fisher Road, 719 F. Supp. 1396,
1404 (E.D. Mich. 1989) (finding that occupants of the home
maintained a reasonable expectation of privacy in garbage con-
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tained in closed garbage bags located against the back wall of
the house, hidden from the view of ordinary citizens passing by
the front of the house). Although the garbage can was visible
from the unpaved alley at the rear of the home, the pictures
admitted into evidence show that the contents of the garbage
could not be seen from that vantage point. See 987 Fisher Road,
719 F. Supp. at 1404 (noting that even if the container could be
seen by someone walking up the driveway and around the back of
the house, that person would only be able to see the closed
garbage cans, the contents of which would remain unknown; there-
fore, the occupants of the house maintained an expectation of
privacy that society would recognize as reasonable). In this
case, defendant maintained a reasonable, albeit diminished,
expectation of privacy in the garbage can next to the house. The
diminished expectation stems from leaving the garbage can open
along a pathway open to visitors entering through the back door.
Clearly, the location of the garbage can--up against the house
near the back door--and the odor coming from the garbage can at
6:50 a.m., so strong that Officer Shutter noticed it while
driving by with his windows shut, presents a strong indication
that the contents of the garbage can recently came from the
house.
The officers had probable cause to arrest defendant for
the unlawful manufacture of methamphetamine based on the follow-
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ing: (1) defendant's vehicle was parked in the driveway of the
home; (2) Officer Shutter had knowledge about defendant's metham-
phetamine use, manufacture of the drug, and selling of the drug;
(3) the strong methamphetamine-production odor in the street came
from the garbage can located next to the residence; and (4) "meth
trash" was observed in the garbage can.
3. Warrantless Arrest in a Public Place Was Valid
Having found probable cause to arrest, this court must
determine whether the officers properly conducted a warrantless
arrest. The United States Constitution normally requires the
police to obtain an arrest warrant before entering a person's
home to make an arrest. Payton v. New York, 445 U.S. 573, 576,
63 L. Ed. 2d 639, 644, 100 S. Ct. 1371, 1374-75 (1980); People v.
Lagle, 200 Ill. App. 3d 948, 952, 558 N.E.2d 514, 517 (1990)
(holding that "police officers cannot make a warrantless, non-
consensual entry into a private residence to effect a routine
felony arrest in the absence of exigent circumstances"). How-
ever, an officer may "upon probable cause, effect a warrantless
arrest in a public place for any felony, or for a misdemeanor
committed in the officer's presence." Lagle, 200 Ill. App. 3d at
952, 558 N.E.2d at 517.
In this case, the officers did not enter defendant's
home to arrest him. Instead, they waited until Chief Whitton
convinced defendant to exit the residence. The arrest occurred
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after defendant left the residence. While the record is unclear
exactly where the arrest occurred, Officer Shutter clearly
testified he arrested defendant after defendant exited the
residence. Because a warrantless arrest in a public place with
probable cause is permissible, the arrest of defendant once he
exited the home was proper. See United States v. Santana, 427
U.S. 38, 42, 49 L. Ed. 2d 300, 305, 96 S. Ct. 2406, 2409 (1976)
(a person visible to the public outside a home does not have a
reasonable expectation of privacy; therefore, officers could
properly attempt to effectuate a warrantless arrest of an indi-
vidual standing at the threshold of her home); People v. Wear,
371 Ill. App. 3d 517, 532, 867 N.E.2d 1027, 1040 (2007) (holding
that the threshold of the front door of a residence is a public
place for purposes of a warrantless arrest with probable cause),
aff'd, 229 Ill. 2d 545, 893 N.E.2d 631 (2008); People v. Wil-
liams, 275 Ill. App. 3d 249, 254, 655 N.E.2d 1071, 1075 (1995)
(finding that the porch of a residence was a public place for
purposes of a warrantless arrest).
4. Consent To Search Was Not the Product of an Illegal Arrest
After the officers arrested defendant and the other
occupants of the house, they obtained written consent to search
the house, outbuildings, and vehicles. The State argues the
trial court erred by finding the consents invalidated by the
allegedly illegal arrest because (1) the arrest was valid and (2)
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even if defendant were illegally arrested, the consents were
voluntary.
A search conducted pursuant to consent is one of the
established exceptions to the requirement of both probable cause
and a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36
L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043 (1973). A warrantless
search conducted pursuant to valid consent is permissible so long
as the consent was given voluntarily. Illinois v. Rodriguez, 497
U.S. 177, 181, 111 L. Ed. 2d 148, 156, 110 S. Ct. 2793, 2797
(1990), citing Schneckloth, 412 U.S. at 219, 36 L. Ed. 2d at 858,
93 S. Ct. at 2043-44. The State bears the burden of proving the
"consent to search was freely and voluntarily given." People v.
Zynda, 53 Ill. App. 3d 794, 801, 368 N.E.2d 1079, 1085 (1977).
Generally, this court will not disturb a trial court's
determination of voluntariness unless it is clearly unreasonable.
People v. Alvarado, 268 Ill. App. 3d 459, 463, 644 N.E.2d 783,
786 (1994). In this case, however, the trial court held that
because the arrests were made without probable cause, the con-
sents were the "fruit of the poisonous tree." Therefore, the
court found it unnecessary to determine whether the consents were
voluntarily and knowingly given.
"A defendant's consent is 'involuntary' if '"his will
has been overborne and his capacity for self-determination
critically impaired."'" Alvarado, 268 Ill. App. 3d at 467, 644
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N.E.2d at 789, quoting Schneckloth, 412 U.S. at 225, 36 L. Ed. 2d
at 862, 93 S. Ct. at 2047, quoting Culombe v. Connecticut, 367
U.S. 568, 602, 6 L. Ed. 2d 1037, 1057-58, 81 S. Ct. 1860, 1879
(1961). Custody alone is not sufficient to render a consent
involuntary. Alvarado, 268 Ill. App. 3d at 467, 644 N.E.2d at
789. In addition to custody, relevant factors for determining
whether a consent was involuntary include whether (1) the arrest
occurred late at night; (2) the officers made the arrest while
displaying weapons; (3) the arrest was made by forcible entry or
the use of force; (4) the defendant was handcuffed or kept in
close restraint; (5) the officers gained a key or similar means
of entry during a search incident to arrest for the place they
were asking to search; (6) the officers used the custody to make
repeated requests for consent; (7) the custody was used for
leverage, such as the officer telling the defendant that he would
be released if he consented; (8) the defendant knew or was told
he had the right to refuse consent; and (9) consent was obtained
after the officer refused to grant the defendant's request to
consult with counsel. Alvarado, 268 Ill. App. 3d at 467, 644
N.E.2d at 789, quoting 3 W. LaFave, Search & Seizure §8.2(b), at
183, §8.2(k), at 218 (2d ed. 1987), at 61 (Supp. 1994), and
citing People v. Phillips, 264 Ill. App. 3d 213, 217-18, 636
N.E.2d 1118, 1121 (1994).
In this case, the only relevant factors present are
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that defendant was in custody and handcuffed. None of the other
factors that might render the consent involuntary were proved.
See, e.g., Alvarado, 268 Ill. App. 3d at 468, 644 N.E.2d at 789(finding that consent was not involuntary where the only factors
present were that the defendant was in custody and handcuffed).
Therefore, defendant's consent was voluntary and justified the
search of the residence.
The police officers in this case acted reasonably and
showed great restraint. Instead of immediately and forcibly
entering the house on the basis of exigent circumstances, the
officers began the process of obtaining a warrant and waited
patiently for 4 1/2 hours. The trial court erred by granting
defendant's motion to dismiss.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
order granting defendant's motion to suppress and remand for
further proceedings.
Reversed and remanded.
APPLETON, P.J., and McCULLOUGH, J., concur.
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