People v. Wilson ( 2006 )

THIRD DIVISION
March 29, 2006
No. 1-03-3552
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 03 CR 4976
)
JOHNNIE WILSON, ) Honorable
) William G. Lacy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
Following a bench trial, defendant Johnnie Wilson, who was on mandatory supervised
release (MSR) 1 from a 15-year sentence for armed violence, was convicted of possession of a
controlled substance and sentenced to 8 years= imprisonment. On appeal, he contended that (1)
the trial court erred in denying his motion to suppress evidence because the search pursuant to
his MSR agreement violated his fourth amendment right to be free from unreasonable searches
and seizures; (2) the evidence was insufficient to prove him guilty beyond a reasonable doubt;
(3) the compulsory extraction and perpetual storage of his DNA profile violated his fourth
amendment right; and (4) the trial court failed to provide him with accurate and complete
admonishments pursuant to Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21
(October 17, 2001), R. 605(a), eff. October 1, 2001). In People v. Wilson, 361 Ill. App. 3d 93,
1
What was referred to as Aparole@ in Illinois prior to February 1, 1978, is now termed
Amandatory supervised release@ (MSR). 730 ILCS 5/5-8-1(d) (West 2002).
1-03-3552
836 N.E.2d 159 (2005), we reversed the denial of defendant=s motion to suppress evidence and
remanded the case for a new suppression hearing. Thereafter, the supreme court denied the
State=s petition for leave to appeal, but pursuant to its supervisory authority, directed us to vacate
our judgment and reconsider this case in light of its recent decision in People v. Moss, 217 Ill. 2d
511, 842 N.E.2d 699 (2005). People v. Wilson, 217 Ill. 2d 624, 840 N.E.2d 1243 (2006). After
vacating our original opinion and reconsidering our judgment in light of Moss, we again reverse
and remand for a new suppression hearing.
BACKGROUND
On February 3, 2003, after serving one year of his MSR term, defendant was arrested and
charged with possession of a controlled substance with intent to deliver. Prior to trial, defendant
filed a motion to quash his arrest and suppress evidence. At the hearing, parole officer Raymond
Hayes testified that in February 2003, he received information from his supervisor that an
anonymous person had informed his supervisor that defendant had narcotics and guns in his
apartment in violation of the conditions of his MSR. Officer Hayes then went to 1541 South
Karlov in Chicago where he met two Chicago police officers. Defendant=s relative gave them
permission to enter the apartment. Officer Hayes did not have a warrant to search the apartment,
but did have in his files defendant=s MSR agreement, which was introduced as an exhibit at the
hearing. Paragraph 10 of the agreement states, Ayou shall consent to a search of your person,
property or residence under your control.@ Officer Hayes testified that defendant signed the
agreement in February 2002 and was still governed by the rules at the time of his arrest.
After entering the second-floor apartment with the relative=s permission, Officer Hayes
2
1-03-3552
saw defendant emerge from a bedroom and handcuffed him. According to Officer Hayes,
defendant told him that the bedroom was his bedroom. Officer Hayes then told defendant that he
was there to search his room and the space over which he had control. Officer Hayes did not ask
for defendant=s consent to search the room and did not read him his Miranda rights. Hayes then
watched the two Chicago police officers search the bedroom, where they found suspected
cocaine and heroin in a pile of clothing.
At the conclusion of the hearing, the trial court found that defendant consented to the
search as a condition of his MSR and that he did not enjoy the same rights as those free from the
custody of the Illinois Department of Corrections. Accordingly, the trial court held that the
search was proper and denied defendant=s motion to quash his arrest and suppress evidence.
However, the court granted defendant=s motion to suppress his statement regarding the location
of his bedroom due to Officer Hayes= failure to read him his Miranda rights.
At trial, Officer Hayes testified consistently with his testimony at the hearing. In
addition, he described the location of the searched bedroom as Aa few feet from the front door to
your left as you come through the front door.@ He also explained that defendant reported his
address to the Illinois Department of Corrections as part of the conditions of his MSR. In
addition to finding narcotics in a pile of clothing, narcotics were also found under the bed and in
other locations in the bedroom.
Chicago police officer Daniel Paluck testified that the searched bedroom contained men=s
clothing and that, according to his recollection, defendant was the only male present in the
apartment. Additionally, Officer Paluck testified that he saw a female whom he believed to be
3
1-03-3552
defendant=s girlfriend emerge from the bedroom. Paluck did not retrieve any proof of residence
from the bedroom, but stated that during processing defendant confirmed his address as 1541
South Karlov. The parties stipulated with respect to the testing of the narcotics and the chain of
custody.
The trial court found that the searched room was defendant=s bedroom and that he had
constructive possession of the narcotics. Therefore, the trial court found defendant guilty of
possession of a controlled substance and sentenced him to eight years= imprisonment.
ANALYSIS
Defendant contends that the search of his apartment conducted pursuant to a condition in
his MSR agreement violated his fourth amendment right to be free from unreasonable searches
and seizures. Specifically, he argues that: (1) despite the condition in his MSR agreement
requiring that he Ashall consent to a search of [his] person, property or residence under [his]
control,@ he retained some expectation of privacy; (2) the search was conducted without a
warrant; and (3) the search was unsupported by reasonable suspicion that he possessed guns and
narcotics. The State maintains that the search was proper because defendant consented to it as a
condition of his MSR. Alternatively, the State argues it was a reasonable search considering the
reduced expectations of privacy possessed by parolees and the State=s significant interest in
ensuring compliance with the conditions of their supervised release.
In reviewing a circuit court=s ruling on a motion to suppress, this court will uphold
findings of historical fact unless they are against the manifest weight of the evidence. People v.
Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93, 100 (2004). However, a reviewing court remains
4
1-03-3552
free to undertake its own assessment of the facts in relation to the issues presented and may draw
its own conclusions when deciding what relief should be granted. Accordingly, we review de
novo the ultimate question of whether the evidence here should be suppressed. Pitman, 211 Ill.
2d at 512, 813 N.E.2d at 101.
Initially, we address the State=s argument that by accepting the conditions of his MSR
agreement, defendant prospectively consented to all searches, thereby relieving defendant of any
expectation of privacy and waiving his fourth amendment rights. We note that the State=s
argument is based upon a fundamental misconception of MSR in Illinois. Without citation to
authority, the State asserts that defendant has Anegotiated his release from actual physical
custody,@ that without his prior agreement, he Awould not be released,@ and that defendant was
Agiven the privilege of parole, something that is not mandatory.@ Rather, the Unified Code of
Corrections provides that the MSR term is a mandatory component of defendant=s sentence.
Except where a natural life sentence has been imposed, Aevery sentence shall include as though
written therein a term in addition to the term of imprisonment.@ 730 ILCS 5/5-8-1(d) (West
2002). The statute then sets forth a mandatory term of three years= supervised release for first
degree murder or a Class X felony, two years for a Class 1 or 2 felony, and one year for a Class 3
or 4 felony. 730 ILCS 5/5-8-1(d) (West 2002). Accordingly, the MSR term is not a negotiated
release or a privilege. Rather, it is a mandatory part of defendant=s sentence.
Furthermore, this argument was recently rejected in Moss. That court held that the
search condition of a defendant=s MSR does not establish prospective consent to all searches and
does not waive his fourth amendment rights. Moss, 217 Ill. 2d at 526, 842 N.E.2d at 709. The
5
1-03-3552
same analysis is applicable here. The conditions of defendant=s MSR agreement provide that he
shall do or refrain from doing certain things, thereby creating a duty which implies the
requirement of further action. By signing the agreement, defendant acknowledged that if he
refuses to permit the search, he faces revocation of his MSR. However, his acknowledgment
does not entirely relieve him of any expectation of privacy or waive his fourth amendment
protection. Moss, 217 Ill. 2d at 526, 842 N.E.2d at 709.
In the absence of consent, we consider whether the search was otherwise appropriate.
The fourth amendment to the United States Constitution guarantees the Aright of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.@
U.S. Const., amend. IV. Thus, a search does not infringe upon the fourth amendment if it is
Areasonable,@ when Ameasured in objective terms by examining the totality of the circumstances.@
Ohio v. Robinette, 519 U.S. 33, 39, 136 L. Ed. 2d 347, 354, 117 S. Ct. 417, 421 (1996).
Generally, the search of a home is only reasonable for fourth amendment purposes if it is
conducted pursuant to a warrant grounded in probable cause absent exigent circumstances.
Payton v. New York, 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1382 (1980).
Nevertheless, the United States Supreme Court found that under certain circumstances, a
search of a probationer=s home can be reasonable without strict adherence to the ordinary
warrant and probable cause requirements. United States v. Knights, 534 U.S. 112, 121, 151 L.
Ed. 2d 497, 506, 122 S. Ct. 587, 592 (2001); Griffin v. Wisconsin, 483 U.S. 868, 873, 97 L. Ed.
2d 709, 717, 107 S. Ct. 3164, 3168 (1987). In Griffin, the Supreme Court upheld a search of a
probationer=s home conducted pursuant to a Wisconsin regulation permitting Aany probation
6
1-03-3552
officer to search a probationer=s home without a warrant as long as his supervisor approves and
as long as there are >reasonable grounds= to believe the presence of contraband,@ finding that the
Aspecial needs@ of Wisconsin=s probation system justified an exception to the usual warrant and
probable-cause requirements. Griffin, 483 U.S. at 870-71, 97 L. Ed. 2d at 715, 107 S. Ct. at
3167. Thereafter, the Knights Court held that a warrantless search of a probationer=s residence
was reasonable under the fourth amendment when the search was supported by reasonable
suspicion and authorized by a condition of his probation. However, the Court left open the
question whether reasonable suspicion is required for such a search. Knights, 534 U.S. at 120
n.6, 151 L. Ed. 2d at 505 n.6, 122 S. Ct. at 592 n.6.
Following Griffin and Knights, our supreme court held in People v. Lampitok, 207 Ill. 2d
231, 798 N.E.2d 91 (2003), that a search of a probationer=s motel room supported by reasonable
suspicion and pursuant to a search condition of her probation would be constitutionally
reasonable. Thereafter, in Moss, 217 Ill. 2d at 532-33, 842 N.E.2d at 712-13, our supreme court
held that a pat-down search for weapons on a parolee subject to a search condition was
reasonable without any individualized suspicion of illegal activity.
In determining whether the search was appropriate here, we initially consider whether the
Aspecial needs@ test of Griffin is applicable to the extent the search of defendant=s residence was
conducted for a Asupervisory@ purpose. In Griffin, the Supreme Court held that a probation
search was reasonable under the fourth amendment because it was conducted in compliance with
a valid regulation permitting warrantless probation searches upon Areasonable grounds,@ a
standard which the Wisconsin Supreme Court found had been met. Griffin, 483 U.S. at 880 &
7
1-03-3552
n.8, 97 L. Ed. 2d at 721-22 & n.8, 107 S. Ct. at 3172 & n.8.
Section 3-3-7 of the Unified Code of Corrections addresses the conditions of MSR in
Illinois. The statute requires that defendant consent to a search of his person, property or
residence under his control. 730 ILCS 5/3-3-7 (West 2002). The search condition is silent with
respect to imposing a particular standard of suspicion to support a search. Additionally, the
relevant section of the Illinois Administrative Code does not specifically address the search
condition of those on MSR nor does it impose a particular standard of suspicion to support such
a search. See 20 Ill. Adm. Code '1610.120, as amended by 13 Ill. Reg. 3063 (eff. February 28,
1989) (addressing the conditions of MSR). Given the lack of standards comparable to those
present in Griffin, we find that Griffin does not control our analysis here.
Rather, to determine if a search for evidence in the home of a person subject to MSR 2 is
objectively reasonable under a lesser degree of suspicion, we examine whether the search was
reasonable under the totality of the circumstances. Knights, 534 U.S. at 118, 151 L. Ed. 2d at
505, 122 S. Ct. at 591. The reasonableness of the search is determined by balancing the degree to
which the search intrudes upon the privacy interests of a defendant on MSR against the degree to which
the search is needed to promote legitimate governmental interests, with the search condition of
2
For purposes of fourth amendment analysis, there is no distinction between a parolee
and a defendant on MSR. Moss, 217 Ill. 2d at 514 n. 1, 842 N.E.2d at 702 n.1.
8
1-03-3552
defendant=s MSR being Aa salient circumstance.@ Knights, 534 U.S. at 118, 151 L. Ed. 2d at 505,
122 S. Ct. at 591.
In Moss, our supreme court confronted this balancing test when concluding that a pat-
down search of a defendant on MSR without any level of individualized suspicion and pursuant
to a search condition of MSR was constitutionally reasonable under the fourth amendment
during a traffic stop and consensual automobile search. Moss, 217 Ill. 2d at 532, 842 N.E.2d at
713. In evaluating the governmental interests, the court focused on the State=s interest in officer
safety. The court found that the circumstances confronting the officers during a Terry stop,
requiring passengers to leave a vehicle and an officer to place himself in a compromising
position, increased the government=s interest in ensuring that those passengers were not armed.
Accordingly, the court held that those officer safety circumstances contributed to the
government=s interest in performing a pat-down search of the defendant. Moss, 217 Ill. 2d at
530-31, 842 N.E.2d at 711-12. In contrast to Moss, in this case, we are not presented with a
protective search or officer safety concerns attendant to a traffic stop but, rather, with a full-
fledged search for evidence in defendant=s residence while he was handcuffed. The same
heightened level of interest in officer safety attendant to a traffic stop is not at issue here.
Accordingly, we next consider defendant=s MSR status as it relates to the State=s interest in the
search.
In evaluating the governmental interests in Lampitok, the court held that administration
of the probation system is a Aspecial need@ of the State beyond the typical needs of law
enforcement that would justify a greater governmental intrusion on privacy than would be
9
1-03-3552
acceptable in the case of an ordinary citizen. Lampitok, 207 Ill. 2d at 250, 798 N.E.2d at 104.
The court further found that imposing the traditional warrant and probable cause requirements
would unduly interfere with the State=s ability to administer its probation system. To obtain a
warrant would delay the ability to respond to evidence of misconduct, and to require probable
cause would only facilitate the probationer=s ability to conceal his misconduct in violation of the
conditions of probation. Lampitok, 207 Ill. 2d at 250, 798 N.E.2d at 104. Based upon these
considerations, our supreme court acknowledged that Illinois=s probation system may justify a
warrantless search of a probationer upon a lesser degree of suspicion than probable cause.
Lampitok, 207 Ill. 2d at 250, 798 N.E.2d at 104.
In Moss, the court found that the governmental interest in public safety espoused in
Lampitok is even more apparent in the case of those serving a term of MSR. Moss, 217 Ill. 2d at
531, 842 N.E.2d at 712. They, like probationers, require supervision and enjoy only
A>conditional liberty properly dependent on observance of special * * * restrictions.=@ Griffin,
483 U.S. at 874, 97 L. Ed. 2d at 718, 107 S. Ct. at 3169, quoting Morrissey v. Brewer, 408 U.S.
471, 480, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593, 2600 (1972); Moss, 217 Ill. 2d at 522, 842,
N.E.2d at 706-07 (A[p]robationers and persons on MSR are similarly situated in the broad sense
that both enjoy conditional liberty@). However, because parolees present a greater risk to the
public, the objective of community safety would justify an even greater intrusion on a parolee=s
privacy. See 730 ILCS 5/5-6-1(a) (West 2002); Moss, 217 Ill. 2d at 531, 842 N.E.2d at 712.
Nevertheless, although these governmental interests may Ajustify departures from the
usual warrant and probable-cause requirements@ (Griffin, 483 U.S. at 874, 97 L. Ed. 2d at 717,
10
1-03-3552
107 S. Ct. at 3168), these interests do not necessarily authorize a substantial invasion of privacy
without any level of individualized suspicion (Griffin, 483 U.S. at 875, 97 L. Ed. 2d at 718, 107
S. Ct. at 3169 (the permissible impingement on a probationer=s privacy is not unlimited)). In
determining the appropriate level of individualized suspicion, if any, we must also consider
defendant=s expectation of privacy in his home and its relationship to his MSR status and the
search condition of his MSR term.
Those offenders on MSR have a significantly reduced expectation of privacy compared
to ordinary citizens because they are criminal offenders subject to a prison term and are subject
to certain restrictions as a condition of their release. Moss, 217 Ill. 2d at 531, 842 N.E.2d at 712;
Lampitok, 207 Ill. 2d at 250-51, 798 N.E.2d at 104. In Illinois, the conditions of MSR are
governed by section 3-3-7 of the Code (730 ILCS 5/3-3-7 (West 2002)). Paragraph 10 of section
3-3-7(a) addresses the relevant search condition. That paragraph requires that defendant
Aconsent to a search of [his] person, property, or residence under [his] control.@ 730 ILCS 5/3-3-
7(a)(10) (West 2002).
The breadth of a search condition affects a defendant=s expectation of privacy. Moss, 217
Ill. 2d at 531, 842 N.E.2d at 712. In Lampitok, the probation conditions provided that the
probationer A >shall submit to a search of her person, residence, or automobile at any time as
directed by her Probation Officer to verify compliance with the conditions of this Probation
Order.= @ Lampitok, 207 Ill. 2d at 236, 798 N.E.2d at 96. In Knights, the defendant=s probation
conditions permitted searches A >with or without a search warrant, warrant of arrest or reasonable
cause by any probation officer or law enforcement officer.= @ Knights, 534 U.S. at 114, 151 Lans. Ch.
11
1-03-3552
Ed. 2d at 502, 122 S. Ct. at 589. Based upon the defendant=s acceptance of this broad search
condition, the Court concluded that the defendant had a Asignificantly diminished@ expectation of
privacy. Knights, 534 U.S. at 119-20, 151 L. Ed. 2d at 505, 122 S. Ct. at 591-92.
In Moss, the court found that the condition of a defendant=s MSR in Illinois is equally as
broad as the condition in Knights because it requires that he consent to a search of his person,
residence, or property under his control without any limitation on the purpose of the search or
the government agent who may perform the search. Moss, 217 Ill. 2d at 532, 842 N.E.2d at 712.
The court also found that the conditions of MSR are more extensive than the conditions of
probationers because they limit where they may live, with whom they may associate, and the
places they may frequent. Moss, 217 Ill. 2d at 532, 842 N.E.2d at 712, citing 730 ILCS 5/3-3-7
(West 2004). Accordingly, a person subject to MSR has a lesser expectation of privacy than a
probationer. Moss, 217 Ill. 2d at 532, 842 N.E.2d at 712.
Although defendant has a significantly reduced expectation of privacy as a parolee
subject to a broad search condition, the Supreme Court has acknowledged that the fourth
amendment accords special protection to the intrusion into one=s home. Payton, 445 U.S. at 589,
63 L. Ed. 2d at 653, 100 S. Ct. at 1381-82, quoting U.S. Const., amend. IV. Where the MSR
search invades the home, it weighs heavily in the balance that determines whether the search is
reasonable and remains a significant, rather than minimal, intrusion on defendant=s albeit
diminished expectations of privacy. Lampitok, 207 Ill. 2d at 252, 254, 798 N.E.2d at 105, 106.
Accordingly, permitting a suspicionless search of defendant=s home would offend the
significantly protected status of the home, and thus, supports the conclusion that defendant=s
12
1-03-3552
expectation of privacy is not completely extinguished. Lampitok, 207 Ill. 2d at 252, 798 N.E.2d
at 105 ( A[t]he primacy of fourth amendment protection against intrusions into a person=s home
further encourages us to require some level of individualized suspicion prior to a probation
search of a probationer=s residence@).
We reject the State=s contention that defendant=s expectation of privacy in his home is no
different than his expectation when confined in a prison merely because he remains in the
custody of the Illinois Department of Corrections. While the fourth amendment does not apply
within the confines of a prisoner=s cell (Hudson v. Palmer, 468 U.S. 517, 525-26, 82 L. Ed. 2d
393, 402-03, 104 S. Ct. 3194, 3200 (1984)), the Supreme Court has unequivocally rejected the
notion that the status of parolees is legally comparable to that of prisoners in actual custody.
Morrissey, 408 U.S. at 482, 33 L. Ed. 2d at 494-95, 92 S. Ct. at 2600-01; United States v.
Crawford, 323 F.3d 700, 708-09 (9th Cir. 2003). Therefore, the mere fact that a defendant on
MSR remains in custody is not dispositive of a defendant=s privacy interests.
Additionally, in Moss, the court considered the scope of the intrusion. There, the court
held that A[t]he limited scope of a pat-down search for weapons, as opposed to a full-fledged
search for evidence, was appropriate where no individualized suspicion of illegal activity
existed.@ Moss, 217 Ill. 2d at 532-33, 842 N.E.2d at 713. Here, we are not faced with the
limited scope of a pat-down search for weapons during a Terry stop but, rather, with a significant
intrusion into defendant=s residence. This invasion cannot be considered a minor invasion of
privacy and, thus, further supports the conclusion that while probable cause is not required, a
search of defendant=s residence must be attendant to some quantum of individualized suspicion
13
1-03-3552
to meet the reasonableness standard of the fourth amendment.
Based upon the totality of the circumstances, after balancing the State=s interest in its
MSR system with defendant=s expectation of privacy, we conclude that a search of defendant=s
home pursuant to the conditions of his MSR agreement is reasonable if supported by reasonable
suspicion. As the supreme court stated in Lampitok, most other federal courts have agreed that
reasonable suspicion is the appropriate constitutional threshold for parole or probation searches,
especially, as in this case, where they involve intrusion into the home. Lampitok, 207 Ill. 2d at
253, 798 N.E.2d at 105-06 (compiling a list of cases).
Accordingly, we find that the trial court erred in denying defendant=s motion to
suppress evidence on the basis that defendant consented to the search condition of his MSR
agreement. Rather, the trial court must evaluate whether the officers had reasonable suspicion to
believe that defendant had narcotics or guns in his home or otherwise violated the terms of his
MSR so that the search was justified at its inception under the fourth amendment. Therefore, we
reverse the denial of defendant=s motion to suppress evidence and remand for a new suppression
hearing consistent with our directive in this opinion. For these reasons, we need not address
defendant=s additional contentions at this time. Nevertheless, we retain jurisdiction to determine
these contentions should the State prevail at the new hearing on the motion to suppress.
Reversed and remanded with directions.
QUINN, P.J., and GREIMAN, J., concur.
14
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
JOHNNIE WILSON,
Defendant-Appellant.
________________________________________________________________
No. 1-03-3552
Appellate Court of Illinois
First District, Third Division
Filed: March 29, 2006
_________________________________________________________________
JUSTICE THEIS delivered the opinion of the court.
Quinn, P.J., and Greiman, J., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable William G. Lacy, Judge Presiding
_________________________________________________________________
For APPELLANT, Michael J. Pelletier, State Appellate Defender
Melinda G. Palacio, Assistant Appellate Defender
Office of the State Appellate Defender
203 N. LaSalle St., 24th Floor
Chicago, IL 60601
For APPELLEE, Richard A. Devine, State=s Attorney
Renee Goldfarb, Assistant State=s Attorney
Sally L. Dilgart, Assistant State=s Attorney
Annette Collins, Assistant State=s Attorney
Dragana Djordjevic, Assistant State=s Attorney
300 Richard J. Daley Center
Chicago, IL 60602