People v. Bonilla

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Supreme Court Date: 2019.04.29
10:49:11 -05'00'
People v. Bonilla, 2018 IL 122484
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court: DERRICK BONILLA, Appellee.
Docket No. 122484
Filed October 18, 2018
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Rock Island County, the
Hon. Frank R. Fuhr, Judge, presiding.
Judgment Affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield, and John L.
Appeal McGehee, State’s Attorney, of Rock Island (David L. Franklin,
Solicitor General, Michael M. Glick and Eldad Z. Malamuth,
Assistant Attorneys General, of Chicago, and Patrick Delfino,
Lawrence M. Bauer, and Gary F. Gnidovec, of the Office of the
State’s Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the
People.
Katherine M. Strohl, of Ottawa, and Hector Lareau, of Rock Island,
for appellee.
Justices JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Justices Garman, Burke, Theis, and Neville concurred in the judgment
and opinion.
Chief Justice Karmeier dissented, with opinion.
Justice Thomas dissented, with opinion, joined by Chief Justice
Karmeier.
OPINION
¶1 This appeal presents a search and seizure issue involving application of this court’s recent
opinion in People v. Burns, 2016 IL 118973. Burns, relying on Florida v. Jardines, 569 U.S.
1 (2013), held that the warrantless use of a drug-detection dog at a defendant’s apartment
door, located within a locked apartment building, violated a defendant’s rights under the
fourth amendment to the United States Constitution. U.S. Const., amend. IV. In this case, the
circuit court of Rock Island County determined that police violated defendant’s fourth
amendment rights by conducting a dog sniff of the threshold of defendant’s apartment,
located on the third floor of an unlocked apartment building. The appellate court affirmed.
2017 IL App (3d) 160457. We now affirm.
¶2 BACKGROUND
¶3 The facts of this case were stipulated to by the parties.1 Defendant, Derrick Bonilla, lived
in an apartment at Pheasant Ridge Apartment Complex in Moline, Illinois. The East Moline
Police Department received a tip that defendant was selling drugs from his apartment. Acting
on that tip, on March 19, 2015, officers brought a trained drug-detection dog to defendant’s
apartment building. The exterior doors to the apartment building were not locked. The
three-floor apartment building contained four apartments on each floor. Once inside the
building, Moline canine officer Genisio 2 walked his drug-detection dog through the
second-floor common area. The dog showed no interest in the second-floor common area and
did not alert on any of the apartment thresholds. Officer Genisio then walked his dog through
the third-floor common area. The dog showed no interest in units 301, 302, or 303. As the
dog came to defendant’s apartment, unit 304, however, it moved back and forth in the
doorway, sniffed at the bottom of the door, and signaled a positive alert for the presence of
1
We note that the supplemental certification of record contains an “Agreed Statement of Facts”
indicating “[t]he search warrant and affidavit filed in [this] case *** is the same search warrant and
affidavit that was the subject of the defendant’s motion to suppress evidence. It was the same search
warrant and affidavit that was viewed by the trial judge in reaching his conclusion with respect to the
motion to suppress.” Unfortunately, neither the common-law record nor the supplemental record
contains a copy of the search warrant and affidavit. Because the trial court’s factual findings are not
contested by the parties, we have relied on the report of proceedings, the defendant’s motion to quash
warrant and suppress evidence, and the parties’ briefs in setting forth the relevant facts of this case.
2
The record on appeal does not indicate Officer Genisio’s first name.
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narcotics. Officers obtained a search warrant for defendant’s apartment based on the
drug-detection dog’s alert. Officers searched defendant’s apartment and found cannabis.
Defendant was later arrested and charged with unlawful possession of cannabis with intent to
deliver (720 ILCS 550/5(c) (West 2014)).
¶4 In June 2015, defendant filed a motion to suppress. A hearing was held on that motion in
August 2016. The parties stipulated to the facts, and no additional testimony or evidence was
presented. At the conclusion of the hearing, the trial court granted defendant’s motion to
suppress, stating:
“But I think whether you are doing it as a privacy interest under [Kyllo v. United
States, 533 U.S. 27 (2001),] or a curtilage property interest under [Jardines, 569 U.S.
1], I think it would just be unfair to say you can’t come up on a person who lives in a
single family residence and sniff his door but you can go into someone’s hallway and
sniff their door if they happen to live in an apartment. That’s a distinction with an
unfair difference. So I’m granting the motion.”
¶5 After the State’s oral motion to reconsider was denied, the State appealed. The State did
not file a separate certificate of impairment but did set forth in its notice of appeal that the
granting of defendant’s motion to suppress had the substantive effect of dismissing the
charges.
¶6 The appellate court affirmed, holding that the common area just outside the door of an
apartment constituted curtilage under Jardines and Burns. 2017 IL App (3d) 160457, ¶ 18.
The appellate court determined that the State acquired the evidence of drugs by intruding into
a constitutionally protected area. 2017 IL App (3d) 160457, ¶ 21. The appellate court also
rejected the State’s argument that the good faith exception applies to prevent the evidence
from being suppressed. 2017 IL App (3d) 160457, ¶ 24. Justice Wright dissented, arguing
that this court had emphasized that police entered a locked apartment complex in Burns and
that she would hold the hallway in this unsecured apartment building was not curtilage. 2017
IL App (3d) 160457, ¶¶ 28-40 (Wright, J., dissenting). We allowed the State’s petition for
leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).
¶7 ANALYSIS
¶8 The State appeals from the judgment of the appellate court affirming the trial court’s
order granting defendant’s motion to suppress. On appeal, we give great deference to a 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. 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).
¶9 Here, the parties stipulated to the facts. The record on appeal does not contain the search
warrant and affidavit relied on by the trial court in ruling on defendant’s motion to suppress.
The State, as the appellant, has the burden of presenting a record sufficient to support its
claim of error, and any insufficiencies must be resolved against it. People v. Hunt, 234 Ill. 2d
49, 58 (2009). Obviously, our legal analysis on a motion to suppress is heavily dependent on
the specific facts of each case, and we admonish the State for not providing this court with a
complete record in this appeal. Here, there was no testimony at the hearing on defendant’s
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motion to suppress. The only evidence to support issuance of the search warrant was the
search warrant itself and the affidavit. It is inconceivable that the State would expect this
court to review the propriety of the trial court’s ruling on defendant’s motion to suppress
evidence without providing a copy of the documents that were considered by the trial court in
making its ruling. Accordingly, any doubts that may arise from the incompleteness of the
record will be resolved against the State, as the appellant. Foutch v. O’Bryant, 99 Ill. 2d 389,
391-92 (1984).
¶ 10 The question of law at issue in this appeal is whether the warrantless use of a
drug-detection dog at the threshold of an apartment door, located on the third floor of an
unlocked apartment building containing four apartments on each floor, violated defendant’s
fourth amendment rights. We review this question of law de novo. People v. Caballes, 221
Ill. 2d 282, 289 (2006).
¶ 11 I. Whether Defendant’s Fourth Amendment Rights Were Violated
¶ 12 The State argues that use of the drug-detection dog did not violate defendant’s fourth
amendment rights because the common-area hallway in front of defendant’s apartment door
did not constitute curtilage. Defendant counters that use of the drug-detection dog at the
threshold of his apartment door violated the fourth amendment to the United States
Constitution (U.S. Const., amend. IV). According to defendant, “a citizen’s home is first
among equals in Fourth Amendment jurisprudence, and the threshold is part of the home as a
matter of law.”
¶ 13 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.
¶ 14 The parties disagree whether this court’s recent decision in Burns and the United States
Supreme Court’s decision in Jardines control. We begin by reviewing the Supreme Court’s
decision in Jardines. In Jardines, police received an “unverified tip” that marijuana was
being grown in the defendant’s home. Jardines, 569 U.S. at 3. Police subsequently went to
defendant’s home with a drug-detection dog and approached the front porch. After sniffing
the base of the front door, the dog gave a positive alert for narcotics. Police applied for and
received a warrant to search defendant’s residence based on the dog sniff. A search of the
residence resulted in the discovery of marijuana plants. Jardines, 569 U.S. at 3-4.
¶ 15 The Supreme Court 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 5. 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 stated 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
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Fourth Amendment’ has ‘undoubtedly occurred.’ ” Jardines, 569 U.S. at 5 (quoting
United States v. Jones, 565 U.S. 400, 406 n.3 (2012)).
¶ 16 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 5 (quoting
United States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring in the judgment,
joined by Marshall, J.)). The Supreme Court emphasized 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 5-6.
¶ 17 The Supreme Court first considered whether police intruded upon a constitutionally
protected area. “The Fourth Amendment does not *** prevent all investigations conducted
on private property ***.” Jardines, 569 U.S. at 6. However, the Court expressly stated:
“But when it comes to the Fourth Amendment, the home is first among equals. 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 6
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
¶ 18 The Court specifically regarded “the area ‘immediately surrounding and associated with
the home’—what our cases call the curtilage” as “ ‘part of the home itself for Fourth
Amendment purposes.’ ” Jardines, 569 U.S. at 6 (quoting Oliver v. United States, 466 U.S.
170, 180 (1984)). The Court reasoned that “[t]his 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 7 (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 7 (quoting Oliver,
466 U.S. at 182 n.12).
¶ 19 After determining that police officers intruded upon a constitutionally protected area, the
Supreme Court then considered 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 7. 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 7 (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 8.
¶ 20 “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
-5-
8 (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 9.
¶ 21 The Court noted that it was unnecessary to decide whether the officers’ investigation
violated Jardines’s reasonable expectation of privacy under Katz. The Court explained:
“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, 569 U.S. at 11
(quoting Jones, 565 U.S. at 409).
Nor did the Court find it necessary to consider whether Kyllo, 533 U.S. 27, 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
11. 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 11-12.
¶ 22 This court later applied the holding of Jardines in the context of an apartment building in
Burns, 2016 IL 118973. In Burns, we held that the warrantless use of a drug-detection dog at
a defendant’s apartment door, located within a locked apartment building in the middle of the
night, violated a defendant’s rights under the fourth amendment to the United States
Constitution. Burns, 2016 IL 118973, ¶ 81. In reaching that conclusion, we emphasized that
the apartment building where the defendant lived was locked and the common areas of the
building were not open to the general public. Burns, 2016 IL 118973, ¶ 41.
¶ 23 The State argues that this case is distinguishable from Burns because, here, the officers
conducted a dog sniff in the unlocked common-area hallway outside of defendant’s
apartment door and the landing was not part of the defendant’s curtilage under the
“property-based” analysis announced in Jardines. According to the State, under Burns, an
unlocked apartment common area is not curtilage. Defendant counters that, under Burns and
Jardines, the threshold of defendant’s apartment is constitutionally protected curtilage.
¶ 24 Here, if the area at the threshold to the door of defendant’s apartment falls within the
curtilage of the home, then the officer’s act of approaching defendant’s apartment door to
have the narcotics-detection dog sniff the threshold of the apartment would constitute an
unlicensed physical intrusion on a constitutionally protected area. Accordingly, this court
must determine whether the threshold of the door to defendant’s apartment falls within the
curtilage of the home.
¶ 25 The facts of this case are nearly identical to those in Burns, other than the unlocked status
of the apartment building. Nevertheless, we conclude that this distinction does not create a
difference. The common-area hallway immediately outside of defendant’s apartment door is
curtilage. See Burns, 2016 IL 118973, ¶ 97 (Garman, J., specially concurring) (“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.”). Moreover, the dog sniff of the
threshold of defendant’s apartment is similar to the dog sniff of the door on the front porch in
Jardines. See Burns, 2016 IL 118973, ¶¶ 96-97 (Garman, J., specially concurring) (“In every
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relevant sense, defendant’s front door and landing appear indistinct from Jardines’s front
door and porch.”).
¶ 26 As the appellate court acknowledged in this case, “the fourth amendment does not
differentiate as to type of home involved.” 2017 IL App (3d) 160457, ¶ 18. We agree with
the trial court that “it would just be unfair to say you can’t come up on a person who lives in
a single family residence and sniff his door but you can go into someone’s hallway and sniff
their door if they happen to live in an apartment. That’s a distinction with an unfair
difference.” See also Bonilla, 2017 IL App (3d) 160457, ¶ 18 (“As the trial court noted, to
reach the opposite conclusion would be to draw a distinction with an unfair difference.”);
United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016) (recognizing that to distinguish
Jardines based upon the differences between the front porch of a single family home and the
closed hallway of an apartment building would be to draw an arbitrary line that would
apportion fourth amendment protections on vagaries of the circumstances that decide home
ownership or rental property).
¶ 27 We conclude that the threshold of the door to defendant’s apartment falls within the
curtilage of the home. “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.” (Emphasis in original.) Burns, 2016 IL 118973, ¶ 96 (Garman, J.,
specially concurring). Further, the officer’s conduct of using a trained narcotics-detection
dog at the threshold of defendant’s apartment for the purpose of detecting contraband inside
defendant’s home is the precise activity the Supreme Court condemned in Jardines. See
Jardines, 569 U.S. at 11-12 (“The 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.”).
¶ 28 A recent United States Supreme Court decision supports our decision in this case. The
Supreme Court recently reiterated its strong tradition of protection from warrantless searches
upon a person’s home or its curtilage in Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663
(2018):
“[T]he Fourth Amendment’s protection of curtilage has long been black letter law.
‘[W]hen it comes to the Fourth amendment, the home is first among equals.’ Florida
v. Jardines, 569 U.S. 1, 6 (2013). ‘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.” ’ Ibid. (quoting Silverman v. United States, 365 U.S. 505,
511 (1961)). To give full practical effect to that right, the Court considers
curtilage—‘the area “immediately surrounding and associated with the home” ’—to
be ‘ “part of the home itself for Fourth Amendment purposes.” ’ Jardines, 569 U.S.,
at 6 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). ‘The protection
afforded the curtilage is essentially a protection of families and personal privacy in an
area intimately linked to the home, both physically and psychologically, where
privacy expectations are most heightened.’ California v. Ciraolo, 476 U.S. 207,
212-213 (1986).” Collins, 584 U.S. at ___, 138 S. Ct. at 1670.
¶ 29 “When a law enforcement officer physically intrudes on the curtilage to gather evidence,
a search within the meaning of the Fourth Amendment has occurred. Jardines, 569 U. S., at
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11. Such conduct thus is presumptively unreasonable absent a warrant.” Collins, 584 U.S. at
___, 138 S. Ct. at 1670.
¶ 30 In Collins, an officer walked up a driveway from the road, past the front lawn and the
front perimeter of a house, and into a partially enclosed portion of the driveway abutting the
house to get to the covered motorcycle he wanted to search. In deciding whether the part of
the driveway where the defendant’s motorcycle was parked and subsequently searched is
curtilage, the Supreme Court indicated that the concept defining curtilage is “ ‘ “easily
understood from our daily experience.” ’ ” Collins, 584 U.S. at ___, 138 S. Ct. at 1671
(quoting Jardines, 569 U.S. at 7, quoting Oliver, 466 U.S. at 182 n.12). The Supreme Court
determined that the area was curtilage, reasoning:
“Just like the front porch, side garden, or area ‘outside the front window,’ Jardines,
569 U.S., at 6, the driveway enclosure where [the officer] searched the motorcycle
constitutes ‘an area adjacent to the home and “to which the activity of the home life
extends,” ’ and so is properly considered curtilage. Id., at 7 (quoting Oliver, 466 U.
S., at 182, n. 12.)” Collins, 584 U.S. at ___, 138 S. Ct. at 1671.
Accordingly, the Supreme Court concluded that, by physically intruding on the curtilage of
the defendant’s home to search the motorcycle, the police invaded the defendant’s fourth
amendment interest in the item searched and also invaded his fourth amendment interest in
the curtilage of his home. Collins, 584 U.S. at ___, 138 S. Ct. at 1671.
¶ 31 The Supreme Court then declined to extend the automobile exception to permit a
warrantless intrusion on a home or its curtilage. Collins, 584 U.S. at ___, 138 S. Ct. at 1675.
In doing so, the Supreme Court specifically refused to create any exception to the general
rule that curtilage receives fourth amendment protection. Collins, 584 U.S. at ___, 138 S. Ct.
at 1675. The Court recognized that exceptions to the general rule that result in certain types
of curtilage receiving fourth amendment protection for some purposes but not for others
would likely create confusion. Collins, 584 U.S. at ___, 138 S. Ct. at 1675. The Court thus
rejected the State’s suggestion that it adopt a more limited rule and hold that the automobile
exception does not permit warrantless entry into “ ‘the physical threshold of a house or a
similar fixed, enclosed structure inside the curtilage like a garage.’ ” Collins, 584 U.S. at ___,
138 S. Ct. at 1674. The Court explained that such a rule “automatically would grant
constitutional rights to those persons with the financial means to afford residences with
garages in which to store their vehicles, but deprive those persons without such resources of
any individualized consideration as to whether the areas in which they store their vehicles
qualify as curtilage.” Collins, 584 U.S. at ___, 138 S. Ct. at 1675.
¶ 32 Applying the relevant legal principles articulated by the Supreme Court in Jardines and
Collins to this case yields the same result. “Just like the front porch, side garden, or area
‘outside the front window,’ ” the threshold of defendant’s apartment door constitutes “ ‘an
area adjacent to the home and “to which the activity of home life extends” ’ and so is
properly considered curtilage.” Collins, 584 U.S. at ___, 138 S. Ct. at 1671 (quoting
Jardines, 569 U.S. at 6-7, quoting Oliver, 466 U.S. at 182 n.12). Accordingly, we hold that in
physically intruding on the curtilage of defendant’s apartment to conduct a dog sniff of the
threshold, officers violated defendant’s fourth amendment rights.
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¶ 33 II. Whether the Good-Faith Exception to the Exclusionary Rule Applies
¶ 34 Alternatively, the State asserts that, even if the police violated the fourth amendment in
this case, the evidence should not be suppressed because the officers acted in good-faith
reliance on established precedent. The State acknowledges that this court rejected a similar
argument in Burns.
¶ 35 “Generally, courts will not admit evidence obtained in violation of the fourth
amendment.” Burns, 2016 IL 118973, ¶ 47 (citing People v. Sutherland, 223 Ill. 2d 187, 227
(2006)). As this court recognized in Burns:
“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.’ ” Burns, 2016 IL 118973, ¶ 47 (quoting 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)). The good-faith exception to the exclusionary rule is a
judicially created rule providing that evidence obtained in violation of a defendant’s fourth
amendment rights will not be suppressed when “police acted with an ‘ “objectively
‘reasonable good-faith belief’ that their conduct [was] lawful,” ’ or when their conduct
involved only simple, isolated negligence.” People v. LeFlore, 2015 IL 116799, ¶ 24
(quoting United States v. Katzin, 769 F.3d 163, 171 (3d Cir. 2014), quoting Davis v. United
States, 564 U.S. 229, 238 (2011), quoting United States v. Leon, 468 U.S. 897, 909 (1984)).
¶ 36 This “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), (2) (West 2012).
¶ 37 The good-faith exception to the exclusionary rule includes good-faith reliance upon
binding appellate precedent that specifically authorized a particular practice but was
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subsequently overruled. Davis, 564 U.S. at 241; People v. LeFlore, 2015 IL 116799,
¶¶ 29-31.
¶ 38 The State argues that the good-faith exception to the exclusionary rule should apply in
this case for the same reasons argued by the State in Burns: (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 expectation of privacy in apartment building common areas; and (3) the officers
relied on federal precedent holding there was no reasonable expectation of privacy in
apartment building common areas. According to the State, it was objectively reasonable for
the officers to rely in good faith on “binding appellate precedent that the precise location of
the K9 sniff was not constitutionally protected.” According to the State, “that the exterior
door here was unlocked makes all the difference.” We disagree. As we have already stated,
whether the entrance to the common area of the defendant’s apartment was unlocked, as
opposed to being locked, is a distinction without a difference. Supra ¶ 25.
¶ 39 First, in support of its contrary conclusion, 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 “for thirty years, and on three separate occasions, the United
States Supreme Court has held that a K9 sniff was neither a Fourth Amendment search nor
constitutionally relevant.” 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 Edmond, the Supreme Court held that there was no
fourth amendment search when officers conducted a dog sniff of an automobile at a highway
checkpoint. Edmond, 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).
¶ 40 As this court explained in Burns, “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.’ ” Burns, 2016 IL
118973, ¶ 56 (quoting Silverman, 365 U.S. at 511). None of these Supreme Court cases cited
by the State implicate this core fourth amendment right involving the home and its curtilage.
Rather, Place, City of Indianapolis, and Caballes involved use of dog sniffs in public places.
Here, the police conduct involved the warrantless use of a drug-detection dog at the
threshold of defendant’s home. That conduct is simply not supported by an objectively
reasonable good-faith belief that it was specifically authorized under any United States
Supreme Court precedent.
¶ 41 The State next argues that the good-faith exception to the exclusionary rule should apply
because the officers relied on People v. Smith, 152 Ill. 2d 229 (1992), holding that residents
had no reasonable expectations of privacy in apartment building common areas. We have
already reviewed and discussed Smith in detail and rejected the State’s argument in Burns.
Burns, 2016 IL 118973, ¶ 58. Nevertheless, the State argues that officers could rely in good
faith on Smith, regarding the lack of privacy interests in unlocked common areas. The State
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contends that the fact that the common area in this case was unlocked meant that it was a
place officers had a legal right to be.
¶ 42 Contrary to the State’s assertion, Smith did not hold that tenants have no expectation of
privacy in common areas of either locked or unlocked apartment buildings. Rather, as we
noted in Burns, “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.” Burns, 2016 IL 118973, ¶ 58. Here, in contrast, conducting a search with a
drug-detection dog is much different from overhearing a private conversation. Consequently,
Smith does not support the State’s position any more in this case than it did in Burns.
¶ 43 The State also argues that officers could rely in good faith on People v. Carodine, 374 Ill.
App. 3d 16 (2007), to believe that the unlocked common area was not constitutionally
protected. We now examine Carodine.
¶ 44 In Carodine, a surveillance officer observed a defendant remove a bag from a dryer vent
protruding from the outside wall of an apartment building, remove an item from the bag, and
hand the item to a person who gave money to the defendant. Carodine, 374 Ill. App. 3d at
18-19. A few minutes later, the officer recovered a bag from the vent that contained cocaine
and heroin. Carodine, 374 Ill. App. 3d at 19. On appeal, the defendant argued that the trial
court erred by denying his motion to suppress the narcotics retrieved by police from the dryer
vent that led from the inside of his apartment to the exterior wall of the building. Carodine,
374 Ill. App. 3d at 21. The appellate court held that no search occurred because the defendant
did not have an objective expectation of privacy in the vent that led from inside his apartment
to the common-area exterior wall of the apartment building. Carodine, 374 Ill. App. 3d at 24.
The court reasoned that “the dryer vent was located in a common area where other tenants of
the building, the landlord, delivery persons, door-to-door salesmen and other members of the
public had access.” Carodine, 374 Ill. App. 3d at 24. We agree with defendant that the facts
and holding in Carodine are insufficiently analogous to offer any value to the analysis of the
case at hand. Most notably, Carodine involved the exterior wall of an apartment building; it
did not involve a drug-dog sniff at the threshold to the door of an apartment.
¶ 45 We also agree with defendant that the Illinois case most on point at the time of the
warrantless search in this case was the Fourth District Appellate Court opinion in People v.
Burns, 2015 IL App (4th) 140006. The appellate court’s holding in Burns, later affirmed by
this court, was that the warrantless dog sniff of the common-area landing outside of an
apartment door was an illegal search under the fourth amendment. The only difference
between the facts in Burns and the facts here is that the exterior door to the apartment
building in Burns was locked. The State does not cite any binding appellate decision, state or
federal, that was available at the time of the search, specifically authorizing the warrantless
use of a drug-detection dog at the threshold of an apartment door or any other home.
¶ 46 The State also cites a Seventh Circuit Court of Appeals case as binding precedent in
Illinois absent contrary state authority. See United States v. Brock, 417 F.3d 692 (7th Cir.
2005), abrogation recognized by United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014). In
Brock, officers performed a dog sniff outside the locked door of the defendant’s bedroom.
The Seventh Circuit Court of Appeals affirmed the denial of the defendant’s motion to
suppress. Brock, 417 F.3d at 697. The court relied on Supreme Court decisions holding that a
drug-dog sniff does not constitute a search for fourth amendment purposes because it reveals
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only the presence or absence of narcotics and therefore implicates no legitimate privacy
interest. Brock, 417 F.3d at 695.
¶ 47 There are two problems with the State’s reliance on Brock. First, critical to Brock’s
holding was that the dog sniff in the case was not a fourth amendment search because police
were lawfully present inside the common areas of the residence with the consent of the
defendant’s roommate. Brock, 417 F.3d at 697. Second, Brock is no longer good law, and its
abrogation has been recognized after the 2013 decision in Jardines. See Gutierrez, 760 F.3d
at 755-56 (“Brock is no longer good law; Jardines expressly held that a drug-dog’s sniff on
the curtilage is a Fourth Amendment search for which a warrant is typically required.”).
Jardines was decided two years before the dog sniff in this case, and Brock had already been
recognized as abrogated. Accordingly, the State’s reliance on Brock is misplaced.
¶ 48 The State also cites federal cases holding that there was no reasonable expectation of
privacy in apartment building common areas. United States v Correa, 653 F.3d 187 (3d Cir.
2011); United States v. Scott, 610 F.3d 1009 (8th Cir. 2010); United States v. Dillard, 438
F.3d 675 (6th Cir. 2006); United States v. Miravalles, 280 F.3d 1328 (11th Cir. 2002); United
States v. Taylor, 248 F.3d 506 (6th Cir. 2001); United States v. Nohara, 3 F.3d 1239 (9th Cir.
1993); United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991); United States v.
Barrios-Moriera, 872 F.2d 12 (2d Cir. 1989), abrogated on other grounds by Horton v.
California, 496 U.S. 128, 130 (1990); United States v. Eisler, 567 F.2d 814 (8th Cir. 1977).
The State argues that, given this legal landscape, the officers here would have had no reason
to suspect that their conduct was wrongful under the circumstances. This court has already
rejected the State’s “legal landscape” argument in Burns. Burns, 2016 IL 118973, ¶ 67.
Significantly, all of these cases were pre-Jardines, and many of these cases had already been
called into doubt as no longer good law after Jardines. Indeed, Jardines was decided two
years before the dog sniff of defendant’s threshold in this case.
¶ 49 For these reasons, we hold that the good-faith exception to the exclusionary rule is not
applicable.
¶ 50 CONCLUSION
¶ 51 We hold that the warrantless use of a drug-detection dog at the threshold of defendant’s
apartment door violated his rights under the fourth amendment to the United States
Constitution. U.S. Const., amend. IV. We also conclude that the good-faith exception to the
exclusionary rule does not apply. We affirm the judgment of the appellate court and affirm
the trial court’s judgment granting defendant’s motion to suppress.
¶ 52 Affirmed.
¶ 53 CHIEF JUSTICE KARMEIER, dissenting:
¶ 54 I join in Justice Thomas’s dissent—as I did in People v. Burns, 2016 IL 118973—and I
write separately only to add a few observations of my own and reiterate some points he made
in Burns.3 Early on, the majority recognizes that “our legal analysis on a motion to suppress
is heavily dependent on the specific facts of each case” (supra ¶ 9); however, the majority
3
See Burns, 2016 IL 118973, ¶¶ 103, 113, 121, 125 (Thomas, J., dissenting, joined by Karmeier, J.)
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then readily takes statements the Supreme Court made in the context of true “curtilage” cases
and plugs them into an analysis of a much different property interest, purporting to
distinguish this court’s opinion in People v. Smith, 152 Ill. 2d 229 (1992). In that regard, the
majority employs a suspiciously evolving distinction of Smith, which addressed reasonable
expectations of privacy in similar circumstances but reached a different result. However,
even if we were to assume that Smith is no longer good law after Jardines—as the majority
suggests—it is to me inconceivable that the majority can say Smith is irrelevant—along with
all the other cases cited by Justice Thomas in Burns—for purposes of applying the good-faith
exception to the exclusionary rule.
¶ 55 First, I do not believe that the majority’s analytical overlay of the Supreme Court’s
decision in Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018), adds anything to the
majority’s recycled analysis from Burns. Collins does not advance the majority’s cause.
Though I understand the majority’s desire to impose some form of residential egalitarianism
in this context, precedent simply does not support it—at least not the Supreme Court’s
property-based dispositions in Jardines and Collins. There are very real differences in the
facts, the reasonable expectations of privacy, and the property interests involved. Collins is
still a traditional curtilage case, like Jardines. In Collins, the police deviated from the public
thoroughfare and went through the close of defendant’s private property and onto his
driveway, to search a motorcycle located in what was characterized as a “driveway
enclosure,” an area that the Supreme Court described as adjacent to the home, “ ‘ “to which
the activity of the home life extends.” ’ ” Collins, 584 U.S. at ___, 138 S. Ct. at 1671
(quoting People v. Jardines, 569 U.S. 1, 7 (2013), quoting Oliver v. United States, 466 U.S.
170, 182 n.12 (1984)).
¶ 56 In reaching its result in this case, the majority alternately claims that “[t]he common-area
hallway immediately outside of defendant’s apartment door is curtilage” and “the threshold
of defendant’s apartment door constitutes ‘ “an area adjacent to the home and ‘to which the
activity of home life extends’ ” and so is properly considered curtilage.’ ” (Emphasis added.)
Supra ¶¶ 25, 32 (quoting Collins, 584 U.S. at ___, 138 S. Ct. at 1671, quoting Jardines, 569
U.S. at 6-7, quoting Oliver, 466 U.S. at 182 n.12). The absurdity of the majority’s claim is
highlighted by the dissenting appellate justice in this case:
“No portion of the third-floor hallway is enclosed. Defendant was not using the area
outside his doorway for any private purpose such as for a sitting or reception area for
himself or his guests. Nothing other than the thickness of defendant’s locked
apartment door separated defendant’s private area from the publicly-accessible
hallway. Defendant did not position any item to cause the general public to detour
around the threshold of his locked door. Lastly, and importantly, defendant took no
steps to protect the exterior of his apartment door from the view or observations of
people lawfully travelling back and forth throughout the unlocked apartment
building.” 2017 IL App (3d) 160457, ¶ 36 (Wright, J., dissenting).
¶ 57 The majority likens the common hallway of this unlocked apartment building to the
private porch of Jardines and the private driveway of Collins, both of which were within the
perimeter, or close, of the residential property those defendants actually occupied.4 This
The Supreme Court, in Jardines, made clear that it was intrusion onto Jardines’s property that
4
formed the basis for the Court’s decision: “[W]e need not decide whether the officers’ investigation of
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defendant had no such interest in the common hallway of the multistory apartment building
in which he was one of many tenants. It was not his property. He did not own the hallway, or
have an exclusive right of control, nor any semblance of habitation there. Certainly, his
family life did not extend there. 5 Would we envision family dinners in the hallway?
Gardening? Recreation? Perhaps drinks with friends? Of course not. What aspects of family
life are we talking about? Clearly, the hallway is not “an area adjacent to the home *** to
which the activity of home life extends.” When we employ the property-based approach of
Jardines and Collins—as opposed to a privacy-based analysis—we have to live with the
strictures of the former; we have to accept the limitations of the property right at issue.
¶ 58 The hallway is simply a publicly accessible means of ingress or egress for defendant, all
the other residents, and anyone else who cares to come or go through the building’s unlocked
doors. The owner of the building evinced no intent to prohibit anyone from entering. The
exterior doors leading into the apartment building’s common-area hallways were not locked,
and there was no lock, passcard, entry system, or anything whatsoever on the closed exterior
doors of the apartment building that would prevent any person off the street from entering
into the common-area hallways of the building. Officer Genisio walked through those
publicly accessible, common hallways. He was where he had a right to be. He never invaded
defendant’s living space, nor did he encroach upon property we would recognize as
defendant’s, owned or leased. In short, he did not violate defendant’s “curtilage,” the
dimensions of which the majority would be hard-pressed to fully define. Is this
“threshold-curtilage” a matter of inches in front of defendant’s apartment door? Is that “an
area adjacent to the home *** to which the activity of home life extends?” If more, how far
does it extend? Do other residents traverse and violate defendant’s curtilage when they pass
his apartment door while going about their daily activities? Does this “curtilage” include the
entirety of the third-floor hallway? Perhaps it encompasses all the hallways of the unlocked
apartment building. Who knows?
¶ 59 If “[t]he common-area hallway immediately outside of [a] defendant’s apartment door is
curtilage,” (emphasis added) as the majority at one point states, then the officers in Smith
were clearly in it when they sought to overhear a conversation in that defendant’s apartment.
However, in that case, this court held “no fourth amendment ‘search’ can be said to have
occurred because defendant did not have a reasonable expectation of privacy in his
conversation.”6 Smith, 152 Ill. 2d at 245. Among the factors this court found pertinent to its
Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s
property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only
by physically intruding on Jardines’ property to gather evidence is enough to establish that a search
occurred.” Jardines, 569 U.S. at 11.
5
In short, there was no “ ‘physical intrusion of a constitutionally protected area’ ” as required by the
Supreme Court in Jardines. See Jardines, 569 U.S. at 5 (quoting United States v. Knotts, 460 U.S. 276,
286 (1983) (Brennan, J., concurring in the judgment, joined by Marshall, J.)).
6
The court cited, with implied approval, this court’s decision in People v. Wright, 41 Ill. 2d 170
(1968), where the court upheld admission of evidence developed by means of an officer’s
eavesdropping into a private residence through an open window. The officer watched and listened
through a rear window of an apartment from a Chicago Transit Authority right-of-way only one to three
feet from the building.
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pronouncement on defendant’s expectations of privacy, the court listed the following: (1) the
area where the officers overheard defendant’s conversation was a common area—and the
court cited authority holding that expectations of privacy are diminished in the common
areas of an apartment building; (2) “the area where the officers were standing when they
overheard the conversation was unlocked”; (3) defendant’s voice was raised; and (4) “the
officers used no artificial means to enhance their ability to hear defendant’s conversation, nor
did they enter an area where they had no legal right to be.” (Emphases added.) Smith, 152
Ill. 2d at 246.
¶ 60 As I read Smith, the fact that the officers were in the common area of an “unlocked”
apartment building mattered. The Burns majority also appeared to think that was a distinction
supporting the decision in that case: “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.” (Emphases added.) Burns, 2016
IL 118973, ¶ 58. In its analysis, the Burns majority referred to the “locked” door of the
apartment building multiple times. It was clearly an essential part of the disposition. Now,
the majority’s distinction of Smith appears to be evolving as the need arises, as can be seen in
the majority’s statement in this case: “Contrary to the State’s assertion, Smith did not hold
that tenants have no expectation of privacy in common areas of either locked or unlocked
apartment buildings.” (Emphasis added.) Supra ¶ 42.
¶ 61 This court’s decision in Smith, considered in conjunction with the principles the Supreme
Court espoused in Illinois v. Caballes, 543 U.S. 405 (2005), would appear to validate the
officer’s activities in this case. In Caballes, the Supreme Court stated:
“Official conduct that does not ‘compromise any legitimate interest in privacy’ is
not a search subject to the Fourth Amendment. [United States v. Jacobsen, 466 U.S.
109, 123 (1984)]. We have held that any interest in possessing contraband cannot be
deemed ‘legitimate,’ and thus, governmental conduct that only reveals the possession
of contraband ‘compromises no legitimate privacy interest.’ Ibid. This is because the
expectation ‘that certain facts will not come to the attention of the authorities’ is not
the same as an interest *** in ‘privacy that society is prepared to consider
reasonable.’ Id., at 122 (punctuation omitted). In United States v. Place, 462 U.S.
696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as
‘sui generis’ because it ‘discloses only the presence or absence of narcotics, a
contraband item.’ Id., at 707; [citation].” (Emphasis in original.) Caballes, 543 U.S. at
408-09.
While one might argue those statements were intended to apply only to traffic stops, the
Court’s need to distinguish its decision in Kyllo v. United States, 533 U.S. 27 (2001), which
addressed, inter alia, the expectations of privacy in a residence, suggests otherwise. In Kyllo,
the Court had held that the use of a thermal-imaging device to detect the growth of marijuana
in a home constituted an unlawful search. In Caballes, the Court could have distinguished
Kyllo, principally upon the different privacy interests recognized in automobiles and
homes—however, that is not the “critical” distinction the Court cited:
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“Critical to that decision was the fact that the device was capable of detecting lawful
activity—in that case, intimate details in a home, such as ‘at what hour each night the
lady of the house takes her daily sauna and bath.’ Id., at 38. The legitimate
expectation that information about perfectly lawful activity will remain private is
categorically distinguishable from respondent’s hopes or expectations concerning the
nondetection of contraband in the trunk of his car. A dog sniff conducted during a
concededly lawful traffic stop that reveals no information other than the location of a
substance that no individual has any right to possess does not violate the Fourth
Amendment.” Caballes, 543 U.S. at 409-10.
The bottom line is this is not a curtilage case. Smith and Caballes provide the controlling
authority.
¶ 62 However, for the sake of argument, let us suppose the officer did unwittingly violate this
newly devised minicurtilage, wherever it might be. What about the good-faith exception to
the exclusionary rule? If the officer did not believe the common hallway of an unlocked
apartment building qualified as the “curtilage” of a specific apartment, then he would have
no reason to believe that the Supreme Court’s property-based decision in Jardines changed
the settled authority of Smith and a number of federal decisions, which were based upon
reasonable expectations of privacy and held that there was no such expectation in the
common hallway of an unlocked apartment building. See Burns, 2016 IL 118973, ¶¶ 103,
113, 121, 125 (Thomas, J., dissenting, joined by Karmeier, J.) Those authorities, considered
in conjunction with Caballes, establish that defendant had no reasonable expectation of
privacy in the common hallway of an unlocked apartment building and he further had no
expectation of privacy with respect to the contraband in his apartment.
¶ 63 The appellate court’s decision in Burns (People v. Burns, 2015 IL App (4th) 140006)
could not trump this court’s decision in Smith and the United States Supreme Court’s
decision in Caballes. Those cases provided the governing principles at the time the officer
acted. And we should be fair in our appraisal of the officer’s conduct. As this court
recognized in People v. LeFlore, 2015 IL 116799, ¶ 24, “exclusion [of evidence] is invoked
only where police conduct is both ‘sufficiently deliberate’ that deterrence is effective and
‘sufficiently culpable’ that deterrence outweighs the cost of suppression.” 7 Given the
prevailing supreme court authority at the time the officer acted, his conduct does not qualify
as “culpable.” In the end, when the members of this court, and those of the appellate panel,
cannot agree whether this area qualifies for protection as “curtilage” or warrants an
expectation of privacy, can we expect police officers to appreciate such nuanced distinctions,
so that they would recognize that Jardines changed the law in this context? We should only
expect of them “good faith,” not scholarly discernment.
¶ 64 For the foregoing reasons, I respectfully dissent.
¶ 65 JUSTICE THOMAS, dissenting:
¶ 66 The issue in this case is whether the police conducted an illegal search by using a
drug-sniffing dog in the unlocked common-area hallway outside of defendant’s apartment
7
Noticeably absent in the majority’s opinion here is the extended discussion of LeFlore that the
majority saw fit to include in Burns. See Burns, 2016 IL 118973, ¶¶ 49-52.
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door. In People v. Burns, 2016 IL 118973, I concluded that the police’s use of a drug-sniffing
dog in the locked common-area hallway outside of the defendant’s door was perfectly legal
and did not violate the fourth amendment because (1) the concept of curtilage has no
application to the common areas of multiple-unit structures and (2) there is no reasonable
expectation of privacy in the common areas of an apartment building. Id. ¶ 103 (Thomas, J.,
dissenting, joined by Karmeier, J.). My reasons for reaching this conclusion are set forth fully
in my Burns dissent, and I need not repeat them here. For present purposes, it is sufficient to
say that, for the very same reasons I concluded that the use of a drug-sniffing dog in a locked
common-area hallway raises no fourth amendment concerns, I likewise conclude that the use
of a drug-sniffing dog in an unlocked common-area hallway raises no fourth amendment
concerns. Accordingly, I respectfully dissent.
¶ 67 CHIEF JUSTICE KARMEIER joins in this dissent.
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