People v. McCauley

2018 IL App (1st) 160812
THIRD DIVISION
December 28, 2018
No. 1-16-0812
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 9109
)
OTIS MCCAULEY, ) Honorable
) Carol M. Howard,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Defendant Otis McCauley was convicted after a bench trial of delivery of a controlled
substance and possession of a controlled substance with intent to deliver. Defendant sold drugs
to an undercover officer inside the home of Tiny Barry, for whom defendant regularly performed
housework. Shortly after that transaction, the undercover officer’s partners returned to Barry’s
house to arrest defendant. The details of that encounter were a matter of dispute, but at some
point, the officers entered Barry’s house, without a warrant, and seized some more drugs from a
table in the foyer.
¶2 The trial court denied defendant’s motion to suppress, finding that he “lacked standing”
to challenge the warrantless entry (i.e., search) and seizure of the drugs, since he did not live in
Barry’s house and was merely an “invitee.”
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¶3 Defendant argues that he had a reasonable expectation of privacy in Barry’s house. So
unless exigent circumstances justified the warrantless entry and seizure, the drugs seized from
the table in the foyer must be suppressed. (Perhaps other evidence, too, defendant says—such as
the undercover officer’s on-scene identification of defendant, and prerecorded funds seized from
defendant during a search incident to his arrest.) The trial court, having denied the motion on
“standing” grounds, did not decide whether there were exigent circumstances. Defendant thus
asks that we remand for the trial court to do so.
¶4 The trial court’s reasoning was legally erroneous. But defendant did not carry his burden
of establishing that he had a reasonable expectation of privacy in Barry’s house. We thus affirm
the denial of his motion to suppress. We also vacate his $250 DNA fee.
¶5 BACKGROUND
¶6 At defendant’s bench trial, Officer Angela Pittman, the undercover buy officer, testified
first for the State. When she finished testifying, defense counsel asked for leave to file a “motion
to quash and suppress evidence.” Counsel did not specify what evidence the defense sought to
suppress. But the motion was based on Officer Pittman’s testimony that defendant was arrested
outside, rather than inside, Barry’s house. (According to counsel, that testimony conflicted with
the police reports, and thus revealed a basis for suppression that counsel was not aware of prior
to the trial.) So the theory of the motion—at least as the trial court paraphrased it—was that the
officers could not enter the house and seize the drugs, after arresting defendant outside, without a
warrant.
¶7 The trial court suspended the trial to hear evidence on the motion. That evidence included
the testimony of Officer Michael Clemons, who testified for the State, and defendant.
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¶8 Officer Pittman testified that on April 30, 2014, she was assigned to an undercover
narcotics detail with Officer Clemons and Officer John Zinchuk. Around 10:30 a.m., the officers
went to the 5600 block of South Elizabeth Avenue. Officer Pittman spoke to a man on the street
about purchasing cannabis. The man directed her to a specific house on that block and told her to
knock on the window. When she did, defendant opened the front door. Officer Pittman asked to
buy six bags of cannabis. Defendant went inside, and Officer Pittman followed at his invitation.
The house was empty, except for a table in the entry foyer, a couple of feet from the front door.
Officer Pittman did not see anyone but defendant inside.
¶9 Defendant walked over to the table. There were several bags on the table, containing
various substances that Officer Pittman suspected to be cannabis, heroin, and crack cocaine. She
asked defendant to exchange one bag of cannabis for one bag of heroin. Defendant obliged.
Officer Pittman gave defendant $60 in pre-recorded funds, in exchange for the six bags; left the
house; and signaled to her partners that the buy had been completed.
¶ 10 Officer Clemons testified that he went to the front door after receiving the signal from
Officer Pittman. Defendant opened the door. Officer Pittman radioed her partners and identified
defendant as the person who sold her drugs. Defendant was soon arrested, but the officers gave
conflicting accounts of precisely where the arrest was made.
¶ 11 Officer Pittman testified that the front door was open and defendant was standing outside
the house. Specifically, defendant was on the porch—both when she identified him and when her
partners arrested him. It was after the arrest that her partners went inside the house.
¶ 12 Officer Clemons testified that defendant was about to step outside but never did. While
defendant was still “standing in the doorway,” he must have seen Officer Clemons on the porch,
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because he tried to run back inside. Officer Clemons and another officer (whom he did not name)
grabbed defendant. A “struggle” ensued, and they all “fell back into the doorway.”
¶ 13 Officer Clemons testified that a table with several bags of “different types of [suspected]
narcotics” was located just to the right of the front door, and was clearly visible from the porch
when defendant opened the door.
¶ 14 Defendant testified that the house belonged to Tiny Barry, who lived there with her two
sons. Defendant did not live there. But he helped out around the house as often as three times a
week. He cleaned the house, fed the dog, and cleaned out the dog’s cage. On the day in question,
Barry was in the process of moving, and she had asked defendant to help her clean and pack.
According to defendant, there were various items of furniture and moving boxes throughout the
house, including several boxes next to the front door.
¶ 15 Defendant was in the kitchen, feeding the dog and cleaning the dog’s cage, when Officer
Pittman knocked on the window. Defendant opened the door, and Officer Pittman asked to buy
some cannabis. Defendant “told her there ain’t no weed in this house” and closed the door.
¶ 16 Defendant estimated that the officers returned about 23 minutes later. Defendant opened
the door halfway and remained inside while he talked to them. Soon, a total of five or six officers
“bum-rushed the house,” pushed him back, and came inside. The officers searched the entire
house, including the kitchen, the bedrooms, and the moving boxes.
¶ 17 Defendant denied that there were drugs on the table. Rather, after the officers searched
the house and went through Barry’s moving boxes, Officer Pittman announced that she found
money and drugs. (Officer Pittman, for her part, denied that she went back inside the house after
completing the initial transaction.)
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¶ 18 There was no dispute that the officers did not have either a search warrant or an arrest
warrant when they entered Barry’s house.
¶ 19 After defendant testified, the trial court heard arguments on the motion to suppress. The
parties principally disputed whether defendant had a reasonable expectation of privacy in Barry’s
house, based on his regular performance of chores on her behalf. The trial court found, on this
basis, that defendant was an “invitee” in Barry’s house. An “invitee,” the trial court held, may
challenge a search of any “personal effects” he may have left in “the room in which he is
sleeping,” but an “invitee” lacks “standing to challenge the search of the entire house.” The trial
court denied the motion, and the trial resumed.
¶ 20 The State called Officer Zinchuk as its final witness. He testified that defendant was
detained on the front porch while trying to run back inside. Officer Zinchuk searched defendant
and recovered the pre-recorded funds used by Officer Pittman to buy the drugs. He also
recovered 4 bags of heroin, 6 bags of cocaine, and 9 bags of cannabis from a table by the front
door. Those drugs were clearly visible from the doorway. The house was “vacant,” and looked
like it was “under construction.” Officer Zinchuk did not recall seeing anything inside except the
table with the drugs on it; and to his knowledge, none of the officers searched the entire house.
¶ 21 The parties stipulated, among other things, that the items purchased by Officer Pittman
tested positive for 1.5 grams of heroin, and that the items recovered from the house tested
positive for 0.4 grams of heroin and 0.1 grams of cocaine.
¶ 22 At the close of evidence, the defense renewed its motion to suppress. The trial court
adhered to its ruling that defendant “lacked standing” to challenge the warrantless entry and
search, because he was simply “cleaning the house” and “wasn’t residing there.”
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¶ 23 The trial court found defendant guilty of delivery of a controlled substance (heroin) and
two counts of possession of a controlled substance with intent to deliver (heroin and cocaine).
The trial court found that the officers seized drugs from “the same table that the defendant went
to to retrieve the drugs that he sold [Officer] Pittman”—and thus not from a wholesale search of
the house, as defendant had testified. In its findings, the trial court also noted that “there is some
dispute as to how [the officers] entered” Barry’s house. But the court never definitively resolved
that dispute. Instead, the court briefly summarized some of the testimony on this point and
immediately reiterated its ruling that “defendant lacked standing in the motion.”
¶ 24 Defendant filed a motion for new trial, in which he alleged, among other things, that the
trial court erred in denying his motion to suppress.
¶ 25 Based on his criminal history, the trial court sentenced defendant as a Class X offender,
and imposed three concurrent 8-year prison terms. The trial court also assessed various fines and
fees, including a $250 DNA fee.
¶ 26 ANALYSIS
¶ 27 I
¶ 28 Defendant’s principal argument on appeal is that he had a reasonable expectation of
privacy in Barry’s house, where he frequently served as a “caretaker,” cleaning the house and
feeding Barry’s dog.
¶ 29 As an initial matter, in holding that defendant “lacked standing” as a mere “invitee” in
Barry’s house, the trial court mischaracterized the legal inquiry. Because the fourth amendment
confers “personal rights” that may not be “vicariously asserted,” there is always a threshold
question “whether the proponent of a motion to suppress is entitled to contest the legality of a
search and seizure.” Rakas v. Illinois, 439 U.S. 128, 133-34, 140 (1978). But in Rakas, the
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Supreme Court “dispens[ed] with the rubric of ‘standing’” as the framework for this inquiry. Id.
at 138-40; People v. Johnson, 237 Ill. 2d 81, 89 (2010) (following Rakas, Illinois Supreme Court
“no longer uses the rubric of ‘standing’ when analyzing fourth amendment claims”); People v.
Pittman, 211 Ill. 2d 502, 521 (2004) (“we admonish courts against analyzing a legitimate
expectation of privacy issue under the rubric of ‘standing’”). Whether defendant had “standing”
was the wrong question for the trial court to ask.
¶ 30 And whether the question is framed in terms of standing, or, more properly, a reasonable
or legitimate expectation of privacy, the trial court could not simply draw a bright line between
“invitees” and those who were “residing in the house” at the time. It is well settled that a person
may, under certain circumstances, claim a reasonable expectation of privacy in someone else’s
house. See, e.g., Minnesota v. Olson, 495 U.S. 91, 99 (1990) (warrantless entry into home to
arrest overnight guest violated guest’s fourth-amendment rights); see also Byrd v. United States,
__ U.S. __, __, 138 S. Ct. 1518, 1527 (2018) (“it is by now well established that a person need
not always have a recognized common-law property interest in the place searched to be able to
claim a reasonable expectation of privacy in it”). And as the Supreme Court made clear in Rakas,
439 U.S. at 143, “arcane distinctions developed in property and tort law between guests,
licensees, invitees, and the like, ought not to control” the inquiry into whether a defendant may
contest the legality of a search or seizure. The fourth amendment requires a more fact-intensive
and nuanced inquiry than the trial court undertook.
¶ 31 To invoke the fourth amendment’s exclusionary rule, a defendant carries the burden of
demonstrating (1) that he or she personally had an expectation of privacy in the area searched,
and (2) that society recognizes that expectation as “legitimate” or “reasonable.” People v.
Rosenberg, 213 Ill. 2d 69, 77 (2004); Johnson, 237 Ill. 2d at 90; Rakas, 439 U.S. at 140. The
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factors we consider in determining whether a defendant’s subjective expectation of privacy is
reasonable include the defendant’s (1) ownership of the property, (2) legitimate presence in the
area searched, (3) possessory interest in the area searched or the property seized, (4) prior use of
the area searched or property seized, and (5) ability to control or exclude others’ use of the
property. Rosenberg, 213 Ill. 2d at 78. We review this question of law de novo. Id. at 77.
¶ 32 We first ask whether defendant, “by his conduct, has ‘exhibited an actual (subjective)
expectation of privacy.’” People v. Neal, 109 Ill. 2d 216, 221 (1985) (quoting Smith v. Maryland,
442 U.S. 735, 740 (1979)). The question, in other words, is whether defendant “has shown that
‘he seeks to preserve [something] as private.’” (Brackets in original.) Smith, 442 U.S. at 740
(quoting Katz v. United States, 389 U.S. 347, 351, 361 (1967)). In answering this question, “it is
useful to consider whether there are objective manifestations of the claimed privacy interest,”
such as whether defendant availed himself of any feasible or readily available “safeguards” to
protect his privacy. People v. Janis, 139 Ill. 2d 300, 314 (1990); see, e.g., People v. Carodine,
374 Ill. App. 3d 16, 22 (2007) (defendant manifested expectation of privacy by trying to hide his
drugs in opaque bag inside dryer vent).
¶ 33 Defendant made little effort to safeguard any claimed expectation of privacy. Officer
Pittman testified that defendant let her into Barry’s house, where defendant’s drugs were sitting
on a table in the foyer, a couple of feet from the front door, in full view of anyone who walked
in. Defendant denied all of this, but the trial court believed Officer Pittman’s testimony, and we
have been given no reason to disturb that credibility determination.
¶ 34 The trial court also believed that when the officers returned, they seized the drugs from
that same table, not during a full-scale search of the house as defendant testified. Wherever
defendant was standing at the time—in the doorway or on the porch—all three officers testified
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that the front door was open. Officer Zinchuk testified that he could see the drugs on the table
from the doorway. Officer Clemons testified that he could see them from the porch, since the
table was immediately to the right of the open door. If the front door was open, defendant clearly
exposed the drugs to public view, and that is all but impossible to reconcile with a subjective
expectation of privacy in his activities inside Barry’s house. Indeed, it is hard to imagine how
defendant could have made the drugs more visible, more open to public view, while still keeping
them inside the house.
¶ 35 Even on the most charitable account—defendant’s own—he opened the door “halfway”
and talked to the officers when they returned. That might be construed as some effort to preserve
his privacy—he did not swing the door wide open or invite them in—but it was a minimal effort
at best. If defendant truly wanted to preserve his privacy, he could have kept the door closed and
simply told them to go away.
¶ 36 In sum, it is not clear that defendant exhibited an expectation of privacy in his activities
inside Barry’s house at all. And even if he did exhibit some such expectation, it was a very slight,
attenuated one.
¶ 37 Assuming defendant manifested at least some expectation of privacy, he must also show
that his expectation was reasonable. Defendant acknowledges that he had neither a property nor a
possessory interest in Barry’s house. But he argues that the remaining factors—his legitimate
presence, prior use, and control over access to the property—suffice to show that his expectation
of privacy was reasonable.
¶ 38 First, defendant testified that he had Barry’s permission to be in the house, that he was
there to clean the house and feed the dog. The State argues that we must reject defendant’s
testimony because it was not corroborated by other credible evidence. But the trial court never
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found that it lacked credibility. In fact, the trial court explicitly based its ruling that defendant
“lacked standing” on his testimony “that he cleaned the house three to four times a week.”
Because the trial court took defendant’s testimony on this point at face value, we will do so, too.
Defendant was legitimately present in the house.
¶ 39 And the drugs were seized from an area of the property in which defendant clearly had a
right of access. See, e.g., People v. Harre, 263 Ill. App. 3d 447, 453 (1994) (defendant who had
permission to be on grounds for limited purpose of cutting weeds not legitimately present inside
house, so he could not challenge search of house). As we have noted, the trial court found that
they were seized from a table right next to the front door. In short, defendant was legitimately
present in the area from which the drugs were seized. See Rosenberg, 213 Ill. 2d at 78.
¶ 40 Second, defendant also testified that he regularly performed housework for Barry and
took care of her dog, sometimes as often as three times per week. His prior use of the property
thus weighs, to some extent, in favor of finding a reasonable expectation of privacy.
¶ 41 Third, defendant argues that he had the “ability to control or exclude others’ use of the
property.” See id. This factor carries significant (albeit not always decisive) weight in the
analysis—someone who has the authority to exclude others from property will usually have a
reasonable expectation of privacy in it. See Byrd, 138 S. Ct. at 1527, 1530-31 (citing Rakas, 439
U.S. at 144, n.12) (driver in lawful possession and control of rental car could have reasonable
expectation of privacy in car, even if not listed as authorized driver on rental contract; remanding
for lower courts to decide whether in fact he did).
¶ 42 In particular, defendant claims, his “regular use of the home,” and his “status as a
caretaker,” allowed him to control access to Barry’s house.
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¶ 43 Defendant’s “regular use of the home” does not automatically show that he had authority
to control access to the premises and exclude others from it. Defendant offers no explanation of
this assertion, only a cursory citation to People v. Alexander, 272 Ill. App. 3d 698 (1995). In that
case, we said that Alexander “presumably had the ability to control or exclude others’ use of” a
certain garage. Id. at 703. The garage was on property that belonged to Alexander’s sister, and
although Alexander no longer lived there, he still “operated his [auto parts and repair] business
out of the garage.” Id. at 700-03. Thus, he kept his tools in the garage and “was responsible for
everything inside it.” Id. at 702-03.
¶ 44 Alexander’s connection to the garage thus ran far deeper than defendant’s connection to
Barry’s house, at least as far as we know from the evidence defendant offered at the hearing. In
particular, he did not establish that he had any responsibility for the contents of Barry’s house—
if there were any—beyond cleaning them. (And feeding the dog, an issue we will discuss
separately.) Even less did he establish that he “operated” his own legitimate “business” out of the
house.
¶ 45 We do not read Alexander to establish a general presumption that anyone who regularly
works on a certain property thereby acquires authority to control access to the premises. An old
house may have chronically leaky pipes, but the plumber who regularly tends to them does not
“presumably” get to decide who can come and go, or on what terms. That kind of authority may
be granted, either explicitly or by an implicit understanding, but it cannot be inferred just from
the frequency of one’s work on the premises. Here, there was no testimony from defendant or
Barry that spoke directly to the scope of his authority over the premises. So a close look at the
nature of defendant’s activities on the property is necessary.
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¶ 46 To this end, defendant argues that his “status as a caretaker” buttresses his claim that he
had control over access to the house and the right to exclude others from it. Defendant’s so-
called caretaker function comprised two sets of tasks: general housework, like cleaning up; and
taking care of Barry’s dog. We take each in turn.
¶ 47 Someone who provides cleaning services, or other similar household services, does not
necessarily have any authority to control access to the house, or to exclude others from the house
while they are present and working. To be clear, we are not saying that a household-services
provider never will, but only that there is no bright line to be drawn one way or the other. Thus,
defendant needed to explain the specific terms of his arrangement with Barry in enough detail to
prove that he had such authority over the house—if in fact he did. But defendant produced very
little evidence of this kind.
¶ 48 We know from defendant’s own testimony that he was not a full-time housekeeper for
Barry, or anything akin to a nanny. He did not spend the better part of his days tending to the
house. And there is no evidence that he assumed any significant share of the responsibilities of
managing the household.
¶ 49 Defendant would come over every couple of days—for some unknown amount of time—
to help clean up. Barry was apparently willing to leave him alone in the house, at least for some
amount of time. But for how long? And did someone—Barry or one of her sons—let defendant
in, and step out for a quick errand? Or did defendant have the authority to come and go on his
own? Defendant never even established that he had his own key to the house. It was defendant’s
burden to produce the evidence needed to establish a reasonable expectation of privacy. Johnson,
237 Ill. 2d at 90; People v. Martin, 2017 IL App (1st) 143255, ¶ 18. But we have no idea, from
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the evidence he offered, how he accessed the house himself, never mind whether he had any
broader authority to control access to it.
¶ 50 But defendant does not put much weight on these tasks. More significant, he says, was
taking care of Barry’s dog. To discharge these responsibilities, he needed “to access multiple
areas of the home,” so he could get the dog’s food, water, leash, and other supplies. And he
needed to control entry and access to the home, so he could take the dog out for a walk.
¶ 51 Given the record that defendant made, we don’t know if any of this is even true. We
know, from defendant’s testimony, that he was responsible for “feeding the dog” and “cleaning
out the dog cage.” And we know that the cage was in the kitchen, where, according to defendant,
he was working when Officer Pittman first knocked on the window. But we don’t know how
many other areas of the house—if any—defendant needed to access. Where was the dog’s food
and water, if not in the kitchen? Where were the cleaning supplies kept? We will not speculate
about these details or assume facts that defendant did not establish at the hearing.
¶ 52 In any event, even if defendant did need to access various rooms of the house, to get
cleaning supplies or dog food, that does not show that he had any authority to decide who else
could enter the house in the first place.
¶ 53 And even if we assume, for the sake of argument, that walking the dog would prove that
defendant controlled access to the house, it was still defendant’s burden to produce evidence—
his own testimony, if nothing else—that he actually performed this task. But defendant never
even testified that he took the dog outside. Rather, he testified that the dog had a cage, and that
the cage needed to be “clean[ed] out.” Defendant did not elaborate, but at the very least, this
testimony is consistent with—and perhaps even suggests—that the dog was not being taken out
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for walks. In short, on the record before us, defendant did not carry his burden of proving that he
authority to control access to Barry’s house.
¶ 54 The record aside, defendant argues that anyone caring for a pet in the resident’s absence
has a reasonable expectation of privacy in the resident’s house, by virtue of this role alone.
Caring for a pet, he says, “is analogous to caring for a dependent child in the resident’s absence.”
And the intermediate courts of (at least) two other states have adopted a categorical rule that a
baby-sitter has a reasonable expectation of privacy while working in a home. People v. Moreno,
2 Cal. App. 4th 577, 584-88 (1992); State v. Anonymous, (1984-1), 40 Conn. Supp. 20, 37
(1984). Defendant asks us to extend this categorical rule to pet-sitters.
¶ 55 Courts that adhere to this rule have grounded it in the “unique features of the baby-sitter
role.” Moreno, 2 Cal. App. 4th at 586. The “normal purpose” of baby-sitting is to “free the parent
from the child and the house,” by leaving the baby-sitter “in exclusive charge of the child and the
premises.” Id. at 584. By acting in loco parentis, the baby-sitter thus assumes “an obligation to
protect her charge from harm.” Anonymous, 40 Conn. Supp. at 37. That obligation, as a matter of
“necessity,” gives the baby-sitter an “exclusive right” to decide who may or may not come into
the house while the parents are away. Id.; Moreno, 2 Cal. App. 4th at 584. And that right to
exclude, in turn, gives rise to a reasonable expectation of privacy.
¶ 56 We have our doubts about this categorical rule, only because in the fourth-amendment
context, the Supreme Court has generally abjured bright-line rules in favor of particularized
inquiries. (The one exception we can think of is the overnight guest. See Olson, 495 U.S. at 98­
100.) But we need not, and do not, decide whether this rule should apply to baby-sitters. Even if
it should, defendant must show that pet-sitting justifies an equally strong and automatic fourth-
amendment interest in someone else’s house. We hold that it does not.
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¶ 57 Nothing against pets—or their “parents.” Gone are the days when pets were little more
than chattel. Nowadays they are, in many households, more like members of the family. And
they have legal interests of their own—interests that require their owners to provide for the
animals’ care, including when the owners are away from home. See 510 ILCS 70/3 (West 2018)
(owner of “companion animal” must provide food, water, shelter, veterinary care, and other
necessities, and faces criminal penalties for failure to do so). So for many people, work, travel, or
other responsibilities will make pet-sitters a necessity, at least from time to time.
¶ 58 Because pet-sitters thus serve a function that is widely valued by society, they certainly
could have a reasonable expectation of privacy in the home where the pet lives. See Rakas, 439
U.S. at 143, n.12 (expectations of privacy are legitimized by practices and understandings that
society recognizes as valuable). But we are not convinced that this is always and automatically
the case, no matter the details of the arrangement.
¶ 59 As far as the fourth amendment is concerned, not all pet-sitters are the same. Some have a
greater connection to the property in question than others. Consider this example, at one end of
the spectrum: A family goes on vacation and invites a friend to spend as much time in their
house as she pleases while they are away. The main purpose of the invitation is to provide care
and company for the family’s cat (or dog). The family invites the friend to stay overnight if she
wishes, to bring her laundry, and to come and go as she pleases. We might say: She is invited to
make herself at home. Or: She has the run of the place. These are telling idioms in the fourth-
amendment context. For even if the friend does not stay overnight, and so does not fall within the
rule of Olson, 495 U.S. at 98-100, she certainly has a strong claim to a reasonable expectation of
privacy in the house. The house, for a time, is all but hers.
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¶ 60 At the other end of the spectrum is this example: The family hires a pet-sitting service to
provide two half-hour visits per day, to check in on the cat and tend to the cat’s basic needs. This
is a commercial transaction—the provision of services for money, by someone with no personal
ties to the family. That fact alone substantially diminishes the pet-sitter’s expectation of privacy
in the house. See Minnesota v. Carter, 525 U.S. 83, 90-91 (1998) (where a house is “simply a
place to do business” among people who have no personal relationship, it is treated as
commercial property, with reduced expectation of privacy). So does the limited scope, and the
brief duration, of the pet-sitter’s visits.
¶ 61 The pet-sitter may have been given a key to the house, but the key was for a limited
purpose: to allow the pet-sitter to provide the agreed-upon service. It was not an invitation for the
pet-sitter to treat the house as her own. The pet-sitter, entering the house for a limited time and a
limited purpose, has not necessarily been granted any general authority over the premises or
access to the premises. That pet-sitter has little claim to a reasonable expectation of privacy in
the house.
¶ 62 Thus, we decline to adopt a bright-line rule that a pet-sitter has authority to exclude
others from the house where the pet lives, or, more generally, that the pet-sitter has a reasonable
expectation of privacy in the house. These conclusions may or may not follow in any given case.
The “pet-sitter” role settles nothing on its own. The details of the arrangement matter.
¶ 63 As we have said, we know little about the terms of defendant’s arrangement with Barry.
That in itself is a problem for defendant; it was his burden to produce the evidence he needed to
show a reasonable expectation of privacy in Barry’s house. And the evidence he did produce
strongly suggests that the arrangement was more like our second example than the first.
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¶ 64 Defendant was providing a service for Barry (though we note that defendant never
established that he was paid for his time). There was no evidence that he was ever an overnight
guest in the house, or, for that matter, a non-overnight guest who nonetheless spent significant
time there. There was no evidence that he had any personal relationship with Barry beyond the
arrangement he described in his testimony. There was no evidence that he stored his personal
belongings there. His visits had a limited (and seemingly commercial) purpose. And his
testimony suggested that they were relatively brief: He testified that when he was arrested, the
officers asked whether “somebody [is] going to come here and take care of the dog.” Defendant
assured them that, “yes, somebody is going to always come here and take care of the dog.” If
someone else would be around, soon enough, defendant obviously was not expected to spend any
significant amount of time caring for the dog.
¶ 65 Perhaps, as defendant says, his responsibilities to feed the dog and clean the dog’s cage
gave him a second legitimate reason to be in Barry’s house, in addition to cleaning. But beyond
that, they add little to his privacy interest in the house. In particular, these tasks, on their own, do
not show that defendant had any authority to exclude others from the house.
¶ 66 Restricting our analysis to the facts that defendant actually established at the hearing, we
find this case to be similar to People v. Ervin, 269 Ill. App. 3d 141 (1994). Officers entered the
home of Ervin’s ex-wife without a warrant, found him packaging cannabis at the kitchen table,
and arrested him. Id. at 142. Ervin had not lived in the house or spent the night for nearly thirty
years, and he did not keep any of his own clothing there. Id. at 145. But he visited the house
“most every other day” to provide “food and care” to his ex-wife, who suffered from cancer. Id.
We rejected defendant’s argument that his role as a caretaker gave him a reasonable expectation
of privacy in his ex-wife’s house, finding that his connection to the property was too thin, based
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merely on his brief visits to assist his ex-wife, to treat the house as his own for purposes of the
fourth amendment. Id. at 146-48.
¶ 67 Here, defendant’s connection to the house was similar to Ervin’s—except that defendant
was left alone in Barry’s house, for some unknown period of time. But that difference, without
more, does not support an inference that defendant had any authority over the premises, or that
he had a reasonable expectation of privacy in Barry’s house. For the reasons we have given, the
record that defendant made at the hearing is too thin to support these conclusions.
¶ 68 In sum, defendant was legitimately present in Barry’s house, for the same limited
purposes that brought him there on various occasions in the past. But that is all he established at
the hearing. Defendant did not carry his burden of establishing a reasonable expectation of
privacy. We affirm the denial of his motion to suppress.
¶ 69 II
¶ 70 Lastly, defendant contends that his $250 DNA fee, assessed pursuant to 730 ILCS 5/5-4­
3(j), should be vacated. That fee may be imposed only if defendant is not already registered in
the DNA databank. People v. Marshall, 242 Ill. 2d 285, 301-02 (2011). There is no dispute that
defendant was convicted of a prior felony, after the DNA fee went into effect on January 1, 1998.
We presume that the circuit court, in that case, required defendant to submit a DNA sample and
pay the required fee. People v. Leach, 2011 IL App (1st) 090339, ¶¶ 37-38. That presumption, as
the State concedes, is sufficient to require vacatur of the fee imposed here. See id. We accept the
State’s concession and vacate defendant’s DNA fee.
¶ 71 CONCLUSION
¶ 72 We affirm the denial of defendant’s motion to suppress, but we vacate the $250 DNA fee
imposed by the circuit court.
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¶ 73 Affirmed in part and vacated in part.
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