People v. Burns

2016 IL 118973

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 118973)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TARON R.

BURNS, Appellee.

Opinion filed March 24, 2016.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Justices Freeman, Burke, and Theis concurred in the judgment and opinion.

Chief Justice Garman specially concurred, with opinion.

Justice Thomas dissented, with opinion, joined by Justice Karmeier.

OPINION

¶1 The circuit court of Champaign County determined that the warrantless use of a

drug-detection dog at 3:20 a.m. at defendant’s apartment door, located within a

locked apartment building, violated defendant’s rights under the fourth amendment

to the United States Constitution. U.S. Const., amend. IV. The appellate court

affirmed. 2015 IL App (4th) 140006. We now affirm.

¶2 BACKGROUND

¶3 Defendant, Taron R. Burns, lives in unit No. 10 of a three-story apartment

building located at 409 W. Elm, Urbana, Illinois. The apartment building contains

twelve units and is secured by two locked entrances located on the east and west

sides of the building. The apartment building common areas are not accessible to

the public. Defendant lives on the third floor of the apartment building. Her floor

consists of a small landing with two apartments, unit Nos. 9 and 10, and a storage

closet. The apartment doors to unit Nos. 9 and 10 are located directly across from

one another, and the storage room door faces the stairwell.

¶4 On November 29, 2012, the Urbana police department’s Crimestoppers hotline

received an anonymous tip that defendant was selling marijuana. The tipster

indicated that defendant sold approximately two pounds of marijuana a week and

received shipments of marijuana from her brother (name unknown) in California.

According to the tipster, defendant received a shipment of two pounds of marijuana

on November 21, 2012. The tipster also indicated that defendant sold ecstasy to the

tipster’s girlfriend.

¶5 Investigating the tip, Urbana police detective Matthew Mecum discovered that

in October 2008, defendant was issued a notice to appear from the city of Urbana

for possession of marijuana and drug paraphernalia. Defendant was also arrested in

2003, for possession of marijuana in a neighboring town, Villa Grove, Illinois.

Detective Mecum also observed “pictures containing images for the legalization of

marijuana,” “a picture containing actual marijuana,” and “a picture containing large

amounts of U.S. currency” on defendant’s personal social media page.

¶6 Sometime after midnight on January 10, 2013, Detective Mecum went to

defendant’s apartment building to “confirm her address.” Detective Mecum wore

jeans and a winter jacket, not displaying any law enforcement indicia. Detective

Mecum’s badge and firearm were not visible. Detective Mecum had visited the

apartment building several times and always found the entrance doors locked.

According to Detective Mecum, he knocked on the door and an unidentified tenant

let him in the building. While walking through the apartment building, Detective

Mecum observed a package addressed to defendant with a shipping label

identifying the sender as “Ben Jones in Oakland, California.” Detective Mecum did

not indicate where in the building he observed the package or the dimensions of the

package.

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¶7 At approximately 3:20 a.m., Officer Michael Cervantes entered defendant’s

apartment building, without a warrant, with his drug-detection dog. The dog is

trained in the detection of cocaine, marijuana, methamphetamine, and heroin.

Officer Cervantes was admitted into the building by Sergeant Loschen. Officer

Cervantes did not know how Sergeant Loschen obtained access to the apartment

building. Officer Cervantes took his drug-detection dog to the third floor and the

dog alerted to the presence of narcotics at defendant’s apartment door. The affidavit

for a search warrant in this case states that as Officer Cervantes and his dog were

exiting the apartment building, Officer Cervantes used his drug-detection dog “to

conduct an open air sweep of the doors to two apartments located on the west side

of the first floor of the building.” Officer Cervantes testified during the hearing on

defendant’s motion to suppress that using his drug-detection dog, he “started on the

third floor, swept Number 9, the storage unit in the middle between 9 and 10, swept

10, proceeded to the alert that my canine detected an odor of illegal drugs, and then

on the way out I swept 2 more apartment doors on the first floor on the west side.”

Officer Cervantes did not explain why he swept these other apartments’ doors for

drugs.

¶8 Later that same day, Detective Mecum applied for a search warrant for

defendant’s apartment. The complaint and affidavit for search warrant indicated

that on November 29, 2012, the Urbana police department received a

Crimestoppers tip that defendant was receiving shipments of marijuana from her

brother (name unknown) in California; that defendant received a shipment on

November 21, 2012; that defendant sold ecstasy to the tipster’s girlfriend; that

defendant sells approximately two pounds of marijuana a week; and that defendant

has a personal social media page showing United States currency. The complaint

and affidavit for search warrant does not indicate that the tipster provided

defendant’s address.

¶9 The complaint and affidavit for search warrant also indicated that in October

2008, defendant was issued a notice to appear from the city of Urbana for

possession of marijuana and drug paraphernalia; that defendant was arrested in

2003, for possession of marijuana in Villa Grove; and that defendant’s personal

social media page contained “images for the legalization of marijuana” as well as

“a picture containing actual marijuana” and “a picture containing large amounts of

U.S. currency.” The complaint and affidavit for search warrant stated that on

“January 10, 2012 [sic],” Officer Michael Cervantes used his drug-detection dog to

conduct a sweep of defendant’s apartment door, along with three additional

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apartment doors and a closet door, and that the dog alerted to drugs at defendant’s

apartment door. Detective Mecum stated in the complaint and affidavit for search

warrant that on January 10, 2013, while walking through the apartment building, he

observed a package addressed to defendant at “409 W. Elm #10” with a return

shipping label listing “a Ben Jones in Oakland California.” Detective Mecum also

stated that the only apartment without a number on the door is on the third floor

directly across from unit No. 9, and he subsequently confirmed that unit No. 10 is

located on the third floor. The trial judge granted the search warrant application and

the police searched defendant’s apartment later that day, resulting in discovery of

marijuana.

¶ 10 On January 11, 2013, the State charged defendant with unlawful possession

with intent to deliver between 500 and 2,000 grams of cannabis (720 ILCS 550/5(e)

(West 2012)), a Class 2 felony. Defendant filed a motion to suppress the evidence,

arguing that the dog sniff of the entrance to her apartment violated the fourth

amendment under Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013). The

trial court issued a written order granting defendant’s motion to suppress. The trial

court found that People v. Trull, 64 Ill. App. 3d 385, 387 (1978) (holding that police

officers’ warrantless entry into a defendant’s locked apartment building violated

the defendant’s fourth amendment rights and that evidence found after officers

entered the apartment building must be suppressed) had not been overruled and was

controlling authority.

¶ 11 The trial court also noted that both the authors of the majority and the dissenting

opinions in Jardines recognized that the implied invitation or license for an

individual to approach the door to a home would not extend to a stranger, with or

without a dog, who approached the door without a specific invitation in the middle

of the night. The trial court determined the dog sniff conducted by Officer

Cervantes and his dog in the middle of the night “violated the no-night-visits rule

referred to in the Jardines decision.”

¶ 12 The trial court’s order further noted that the complaint and affidavit for search

warrant erroneously stated that the canine sweep occurred a year earlier, on January

10, 2012, and was sworn to by Detective Mecum with the erroneous statement

uncorrected. The court held that “[t]he sniff of Defendant’s apartment door, located

within a locked apartment building, at 3:20 a.m. on January 10, 2013, violated

Defendant’s Fourth Amendment rights.” The court further determined that the

remaining facts pleaded in the complaint and affidavit for search warrant were

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insufficient to establish probable cause for issuance of the search warrant

requested, and that the good-faith exception to suppression was not applicable to

the facts of this case.

¶ 13 The appellate court affirmed, concluding that the search warrant was issued on

the basis of an unconstitutional warrantless dog sniff. The appellate court further

concluded that the recovered marijuana was “fruit of the poisonous tree and the

exclusionary rule applies.” 2015 IL App (4th) 140006, ¶ 65. We allowed the State’s

petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

¶ 14 ANALYSIS

¶ 15 The State appeals from the judgment of the appellate court affirming the trial

court’s order granting defendant’s motion to suppress. This court gives great

deference to the trial court’s findings of fact when ruling on a motion to suppress.

People v. Cregan, 2014 IL 113600, ¶ 22. We will reverse the trial court’s findings

of fact only if they are against the manifest weight of the evidence. Cregan, 2014 IL

113600, ¶ 22. Here, there is no dispute concerning the trial court’s factual findings.

¶ 16 The trial court’s legal ruling on whether the evidence should be suppressed is

reviewed de novo. People v. Bridgewater, 235 Ill. 2d 85, 92-93 (2009). The

question of law at issue in this appeal is whether the warrantless use of a

drug-detection dog at an apartment door, located within a locked apartment

building, in the middle of the night, violated defendant’s fourth amendment rights.

We review this question of law de novo. Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

¶ 17 I. Whether Defendant’s Fourth Amendment Rights Were Violated

¶ 18 The State argues that use of the drug-detection dog did not violate defendant’s

fourth amendment rights because it did not occur in defendant’s home or its

curtilage. According to the State, the officers conducted a dog sniff on the landing

outside of defendant’s apartment door. The State contends that the landing was not

part of defendant’s curtilage. Defendant counters that use of the drug-detection dog

at the entrance to her apartment was unreasonable and violated both the fourth

amendment to the United States Constitution (U.S. Const., amend. IV) as well as

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the search and seizure provisions of article I, section 6, of the Illinois Constitution

(Ill. Const. 1970, art. I, § 6).

¶ 19 The fourth amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const., amend. IV.

Similarly, the Illinois Constitution provides:

“The people shall have the right to be secure in their persons, houses, papers

and other possessions against unreasonable searches, seizures, invasions of

privacy or interceptions of communications by eavesdropping devices or other

means. No warrant shall issue without probable cause, supported by affidavit

particularly describing the place to be searched and the persons or things to be

seized.” Ill. Const. 1970, art. I, § 6.

“This court interprets the search and seizure clause of the Illinois Constitution in

‘limited lockstep’ with its federal counterpart.” People v. LeFlore, 2015 IL 116799,

¶ 16 (quoting People v. Caballes, 221 Ill. 2d 282, 314 (2006)).

¶ 20 The parties disagree whether the United States Supreme Court’s recent decision

in Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013) controls. The State

argues that the officers conducted a dog sniff on the landing outside of defendant’s

apartment door and that the landing was not part of the defendant’s curtilage under

the “property-based” analysis announced in Jardines. Defendant counters that

under Jardines, a search warrant is required to conduct a dog-sniff search at the

entrance to a home.

¶ 21 In Jardines, the Miami-Dade police department received an “unverified tip”

that marijuana was being grown in defendant’s home. Jardines, 569 U.S. at ___,

133 S. Ct. at 1413. A month later, police went to defendant’s home with a

drug-detection dog. The dog approached the front porch and, after sniffing the base

of the front door, gave a positive alert for narcotics. On the basis of the dog sniff,

police applied for and received a warrant to search defendant’s residence. A

subsequent search of the residence resulted in discovery of marijuana plants.

Jardines, 569 U.S. at ___, 133 S. Ct. at 1413.

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¶ 22 The lead opinion, authored by Justice Scalia, limited its review “to the question

of whether the officers’ behavior was a search within the meaning of the Fourth

Amendment.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1414. The Supreme Court

held that a warrantless “dog sniff” of an individual’s front porch was a search for

purposes of the fourth amendment and suppressed the recovered evidence. The

Supreme Court began its analysis by emphasizing that the fourth amendment

establishes:

“a simple baseline, one that for much of our history formed the exclusive basis

for its protections: When ‘the Government obtains information by physically

intruding’ on persons, houses, papers, or effects, ‘a “search” within the original

meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ ” Jardines,

569 U.S. at ___, 133 S. Ct. at 1414 (quoting United States v. Jones, 565 U.S.

___, ___ n.3, 132 S. Ct. 945, 950 n.3 (2012)).

¶ 23 The Court in Jardines recognized that its decision in Katz v. United States, 389

U.S. 347 (1967), holding that property rights are not the sole measure of the fourth

amendment’s protections, may add to this baseline, but does not subtract anything

from the fourth amendment’s protections “ ‘when the Government does engage in

[a] physical intrusion of a constitutionally protected area.’ ” (Emphasis in original.)

Jardines, 569 U.S. at ___, 133 S. Ct. at 1414 (quoting United States v. Knotts, 460

U.S. 276, 286 (1983) (Brennan, J., concurring in the judgment, joined by Marshall,

J.). The Supreme Court stated that the principle in such a case is straightforward:

“The officers were gathering information in an area belonging to Jardines and

immediately surrounding his house—in the curtilage of the house, which we

have held enjoys protection as part of the home itself. And they gathered that

information by physically entering and occupying the area to engage in conduct

not explicitly or implicitly permitted by the homeowner.” Jardines, 569 U.S. at

___, 133 S. Ct. at 1414.

¶ 24 The Supreme Court in Jardines initially considered whether police intruded

upon a constitutionally protected area. “The Fourth Amendment does not ***

prevent all investigations conducted on private property ***.” “But when it comes

to the Fourth Amendment, the home is first among equals.” Jardines, 569 U.S. at

___, 133 S. Ct. at 1414. “At the Amendment’s ‘very core’ stands ‘the right of a man

to retreat into his own home and there be free from unreasonable governmental

intrusion.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1414 (quoting Silverman v.

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United States, 365 U.S. 505, 511 (1961)). “[T]he area ‘immediately surrounding

and associated with the home’—what our cases call the curtilage” is regarded as

“ ‘part of the home itself for Fourth Amendment purposes.’ ” Jardines, 569 U.S. at

___, 133 S. Ct. at 1414 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)).

“This area around the home is ‘intimately linked to the home, both physically and

psychologically,’ and is where ‘privacy expectations are most heightened.’ ”

Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting California v. Ciraolo, 476

U.S. 207, 213 (1986)). The Court found “no doubt” that the police officers entered

the curtilage of Jardines’s home as “[t]he front porch is the classic exemplar of an

area adjacent to the home and ‘to which the activity of home life extends.’ ”

Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S. at 182 n.12).

¶ 25 After determining that police officers intruded upon a constitutionally protected

area in Jardines, the Court turned to whether the police conduct in entering this

constitutionally protected area with a drug-detection dog was “accomplished

through an unlicensed physical intrusion.” Jardines, 569 U.S. at ___, 133 S. Ct. at

1415. The Court recognized that law enforcement officers need not “ ‘shield their

eyes’ when passing by the home ‘on public thoroughfares,’ ” but an officer’s ability

to gather information is “sharply circumscribed” after stepping off the public

thoroughfare. Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Ciraolo, 476

U.S. at 213). The Court also recognized an implicit license for individuals,

including police, “to approach the home by the front path, knock promptly, wait

briefly to be received, and then (absent invitation to linger longer) leave.” Jardines,

569 U.S. at ___, 133 S. Ct. at 1415.

¶ 26 “Thus, a police officer not armed with a warrant may approach a home and

knock, precisely because that is ‘no more than any private citizen might do.’ ”

Jardines, 569 U.S. at ___, 133 S. Ct. at 1416 (quoting Kentucky v. King, 563 U.S.

452, 469 (2011)). There is no customary invitation, however, for police to

introduce “a trained police dog to explore the area around the home in hopes of

discovering incriminating evidence.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1416.

¶ 27 The Court in Jardines noted that it was unnecessary to decide whether the

officers’ investigation violated Jardines’s reasonable expectation of privacy under

Katz. “The Katz reasonable-expectations test ‘has been added to, not substituted

for,’ the traditional property-based understanding of the Fourth Amendment, and so

is unnecessary to consider when the government gains evidence by physically

intruding on constitutionally protected areas.” (Emphases in original.) Jardines,

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569 U.S. at ___, 133 S. Ct. at 1417 (quoting Jones, 565 U.S. at ___, 132 S. Ct. at

951-52). Nor did it need to consider whether Kyllo v. United States, 533 U.S. 27

(2001), applied because “when the government uses a physical intrusion to explore

details of the home (including its curtilage), the antiquity of the tools that they bring

along is irrelevant.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1417. The Supreme

Court concluded that “[t]he government’s use of trained police dogs to investigate

the home and its immediate surroundings is a ‘search’ within the meaning of the

Fourth Amendment.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1417-18.

¶ 28 Justice Kagan, joined by Justices Ginsburg and Sotomayor, concurred in the

majority opinion to express that the police conduct in Jardines violated the fourth

amendment on privacy as well as property grounds. Jardines, 569 U.S. at ___, 133

S. Ct. at 1418 (Kagan, J., concurring, joined by Ginsburg and Sotomayor, JJ.).

Property concepts and privacy concepts will “align” in cases involving a search of a

home as “[t]he law of property ‘naturally enough influence[s]’ our ‘shared social

expectations’ of what places should be free from governmental incursions.”

Jardines, 569 U.S. at ___, 133 S. Ct. at 1419 (Kagan, J., concurring, joined by

Ginsburg and Sotomayor, JJ.) (quoting Georgia v. Randolph, 547 U.S. 103, 111

(2006)).

¶ 29 According to the concurring Justices, if this case had been decided on privacy

grounds, then it would have been resolved by Kyllo. In Kyllo, the Court highlighted

its “intention to draw both a ‘firm’ and a ‘bright’ line at ‘the entrance to the

house.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1419 (Kagan, J., concurring,

joined by Ginsburg and Sotomayor, JJ.) (quoting Kyllo, 533 U.S. at 40). In Kyllo,

the Supreme Court announced the rule: “ ‘Where, as here, the Government uses a

device that is not in general public use, to explore details of the home that would

previously have been unknowable without physical intrusion, the surveillance is a

“search” and is presumptively unreasonable without a warrant.’ ” Jardines, 569

U.S. at ___, 133 S. Ct. at 1419 (Kagan, J., concurring, joined by Ginsburg and

Sotomayor, JJ.) (quoting Kyllo, 533 U.S. at 40). The special concurrence concluded

that police use of a drug-detection dog—a device not in general public use—to

examine Jardines’s home violated his expectation of privacy in his home. Jardines,

569 U.S. at ___, 133 S. Ct. at 1420 (Kagan, J., concurring, joined by Ginsburg and

Sotomayor, JJ.).

¶ 30 Justice Alito dissented, joined by Chief Justice Roberts and Justices Kennedy

and Breyer. The dissent opined that the law of trespass provided no support for the

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Court’s holding and that there was no violation of the defendant’s reasonable

expectation of privacy under Katz because “[a] reasonable person understands that

odors emanating from a house may be detected from locations that are open to the

public.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1421 (Alito, J., dissenting, joined

by Roberts, C.J., Kennedy and Breyer, JJ.). The dissent also disagreed with Justice

Kagan’s special concurrence, seeing “no basis for concluding that the occupants of

a dwelling have a reasonable expectation of privacy in odors that emanate from the

dwelling and reach spots where members of the public may lawfully stand.”

Jardines, 569 U.S. at ___, 133 S. Ct. at 1424 (Alito, J., dissenting, joined by

Roberts, C.J., Kennedy and Breyer, JJ.).

¶ 31 The State attempts to distinguish this case from Jardines by arguing: (1) the

landing in front of defendant’s apartment does not qualify as curtilage under

Jardines; (2) the landing does not qualify as curtilage under the four-factor test set

forth in United States v. Dunn, 480 U.S. 294 (1987); (3) the borders of the curtilage

should be straightforward and there is no easy way to determine where the

boundaries are if common areas are considered curtilage; and (4) the common

landing is not associated with the intimate activities of the home that animate the

curtilage concept.

¶ 32 On the State’s first argument—that the landing in front of defendant’s

apartment does not qualify as curtilage under Jardines—the State contends that the

landing is different than the front porch at issue in Jardines. The State argues that

the landing did not belong to defendant and she had no possessory interest in the

landing. The State suggests that Jardines is applicable only to single-family

residences and not applicable to leased apartments or condominiums because there

is no legitimate expectation of privacy in common areas of such multiunit

dwellings.

¶ 33 We are not persuaded by the State’s argument. Here, the entrances to

defendant’s apartment building were locked every time police attempted to enter

the secured building. Officers were only admitted to an area not accessible to the

general public by a resident or by another officer. We emphasize that the “common

areas” of the secured apartment building were clearly not open to the general

public, a fact known by the officers who entered defendant’s secured apartment

building in the middle of the night.

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¶ 34 We are equally unpersuaded by the State’s second argument—that the landing

does not qualify as curtilage under the four-factor test set forth in Dunn, 480 U.S.

294. In Dunn, the Supreme Court stated that the common-law concept of

“curtilage” extended to the “area immediately surrounding a dwelling house” and

the curtilage concept “plays a part, however, in interpreting the reach of the Fourth

Amendment.” Dunn, 480 U.S. at 300. Dunn recognized that “the Fourth

Amendment protects the curtilage of a house and that the extent of the curtilage is

determined by factors that bear upon whether an individual reasonably may expect

that the area in question should be treated as the home itself.” Dunn, 480 U.S. at

300 (citing Oliver, 466 U.S. at 180). Dunn further recognized that the central

component of the curtilage inquiry is “whether the area harbors the ‘intimate

activity associated with the “sanctity of a man’s home and the privacies of life.” ’ ”

Dunn, 480 U.S. at 300 (quoting Oliver, 466 U.S. at 180, quoting Boyd v. United

States, 116 U.S. 616, 630 (1886)). The Supreme Court set forth a four-factor

inquiry for analyzing curtilage questions: (1) “the proximity of the area claimed to

be curtilage to the home”; (2) “whether the area is included within an enclosure

surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4)

“the steps taken by the resident to protect the area from observation by people

passing by.” Dunn, 480 U.S. at 301.

¶ 35 Considering the first Dunn factor, “the proximity of the area claimed to be

curtilage to the home,” the State does not dispute that the landing is located directly

in front of defendant’s apartment. We find that the proximity of the landing to

defendant’s apartment strongly supports an inference that the landing be treated as

curtilage under the first Dunn factor.

¶ 36 The State contends that the last three Dunn factors weigh heavily against

treating the landing as curtilage of defendant’s apartment. Specifically, the State

argues that the area was not included within an enclosure surrounded by the home

that excluded others, there is no evidence that defendant put the landing to any use

other than accessing her apartment, and that no effort was made by defendant to

protect the area from observation. We disagree.

¶ 37 Here, the landing to defendant’s apartment is an area located within a locked

structure intended to exclude the general public. The third-floor landing is located

directly outside of defendant’s apartment door and the nature of its use is generally

limited to defendant, the tenant of unit No. 9, and their invitees. The third-floor

landing is an area with limited access, located within a locked building and not

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observable by “people passing by.” We find the last three Dunn factors weigh in

favor of finding that the landing to defendant’s apartment is curtilage and reject the

State’s argument to the contrary.

¶ 38 The State’s third argument against a determination that the landing in front of

defendant’s apartment is curtilage is equally unavailing. The State argues that the

boundaries of curtilage should be straightforward and there is no easy way to

determine boundaries if common areas are considered curtilage. The State notes

that the “boundaries of the curtilage are generally ‘clearly marked,’ [and] the

‘conception defining the curtilage’ is at any rate familiar enough that it is ‘easily

understood from our daily experience.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at

1415 (quoting Oliver, 466 U.S. at 182 n.12).

¶ 39 As the State argues, “[t]his clarity is important for residents, who should know

where they can expect privacy, and for officers, who need to make judgments, often

quickly, in the field *** there is no easy way to determine where the boundaries

would be if the common area were considered to be within the apartment’s

curtilage.” The boundary to the landing of defendant’s apartment is easily

understood as curtilage. The landing is a clearly marked area within a locked

building with limited use and restricted access, “familiar enough that it is ‘easily

understood from our daily experience.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at

1415 (quoting Oliver, 466 U.S. at 182 n.12). We therefore reject the State’s

argument suggesting that the border of the landing to defendant’s apartment is not

straightforward and should not be considered curtilage.

¶ 40 We also disagree with the State’s fourth argument that the landing in front of

defendant’s apartment “is not associated with the intimate activities of the home

that animate the curtilage concept.” The State’s argument is simply a restatement of

the concepts we have already addressed in the State’s Dunn argument. The State

quotes People v. Pitman, 211 Ill. 2d 502, 516 (2004), where this court stated: “[i]n

determining whether a particular area falls within a home’s curtilage, a court asks

whether the area harbors the intimate activities commonly associated with the

sanctity of a person’s home and the privacies of life.” In Pitman, this court noted:

“[t]he extent of the curtilage is determined by factors ‘that bear upon whether an

individual reasonably may expect that the area in question should be treated as the

home itself.’ ” Pitman, 211 Ill. 2d at 516 (quoting Dunn, 480 U.S. at 300). This

court then applied the Dunn four-factor test to the facts of that case. Pitman, 211 Ill.

2d at 516 (citing Dunn, 480 U.S. at 301). We have already examined the facts of

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this case under the Dunn four-factor test and, therefore, reject the State’s argument

that the landing to defendant’s apartment is not associated with the intimate

activities of the home.

¶ 41 We reiterate that the entrances to defendant’s apartment building were locked

every time police attempted to enter the secured building and officers entered the

building with the knowledge that the building they entered was not accessible to the

general public. Thus, this case is distinguishable from situations that involve police

conduct in common areas readily accessible to the public. Accordingly, we reject

the State’s argument that defendant’s landing should not be treated as curtilage for

purposes of the fourth amendment.

¶ 42 Even the Jardines dissent made observations that support our conclusion that

the police conduct in this case violated the fourth amendment. The dissenting

opinion in Jardines noted that custom grants “members of the public may lawfully

proceed along a walkway leading to the front door of a house.” Jardines, 569 U.S.

at ___, 133 S. Ct. at 1421-22 (Alito, J., dissenting, joined by Roberts, C.J., Kennedy

and Breyer, JJ.). The dissent specifically noted, however, that this license has

certain spatial and temporal limits:

“A visitor must stick to the path that is typically used to approach a front door,

such as a paved walkway. A visitor cannot traipse through the garden, meander

into the backyard, or take other circuitous detours that veer from the pathway

that a visitor would customarily use. ***

Nor, as a general matter, may a visitor come to the front door in the middle

of the night without an express invitation. See State v. Cada, 129 Idaho 224,

233, 923 P. 2d 469, 478 (App. 1996) (‘Furtive intrusion late at night or in the

predawn hours is not conduct that is expected from ordinary visitors. Indeed, if

observed by a resident of the premises, it could be a cause for great alarm’).”

Jardines, 569 U.S. at ___, 133 S. Ct. at 1422 (Alito, J., dissenting, joined by

Roberts, C.J., Kennedy and Breyer, JJ.).

¶ 43 Under the facts in Jardines, the dissent believed the officer did not exceed the

scope of the license to approach Jardines’s door. The officer “adhered to the

customary path; he did not approach in the middle of the night; and he remained at

the front door for only a very short period (less than a minute or two).” Jardines,

569 U.S. at ___, 133 S. Ct. at 1423 (Alito, J., dissenting, joined by Roberts, C.J.,

Kennedy and Breyer, JJ.). In contrast to Jardines, the police conduct in this case

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certainly exceeded the scope of the license to approach defendant’s apartment door

when the officers entered a locked building in the middle of the night and they

remained in the building for more than “a very short period of time,” even taking

time to have the drug-detection dog conduct an open-air sweep of other apartment

doors in the building, for some unknown reason. See Jardines, 569 U.S. at ___, 133

S. Ct. at 1423 (Alito, J., dissenting, joined by Roberts, C.J., Kennedy and Breyer,

JJ.).

¶ 44 We conclude that, under Jardines, 569 U.S. ___, 133 S. Ct. 1409, when police

entered defendant’s locked apartment building at 3:20 a.m. with a drug-detection

dog, their investigation took place in a constitutionally protected area. We hold that

the trial court properly determined that the warrantless use of the drug-detection

dog at defendant’s apartment door violated defendant’s rights under the fourth

amendment to the United States Constitution. U.S. Const., amend. IV.

¶ 45 The dissent would find there is no legitimate expectation of privacy in the odors

that waft from an apartment to common areas of an apartment building. Infra ¶ 121.

Our application of Jardines, however, makes it unnecessary to address the merits of

whether use of the drug-detection dog violated defendant’s reasonable expectation

of privacy. See Jardines, 569 U.S. at ___, 133 S. Ct. at 1417.

¶ 46 II. Whether the Good-Faith Exception to the Exclusionary Rule Applies

¶ 47 The State asserts that even if this court determines the officers violated the

fourth amendment in this case, the evidence should not be suppressed because the

officers acted in good-faith reliance on established precedent. Generally, courts

will not admit evidence obtained in violation of the fourth amendment. People v.

Sutherland, 223 Ill. 2d 187, 227 (2006). The fruit-of-the-poisonous-tree doctrine is

an outgrowth of the exclusionary rule providing that “the fourth amendment

violation is deemed the ‘poisonous tree,’ and any evidence obtained by exploiting

that violation is subject to suppression as the ‘fruit’ of that poisonous tree.” People

v. Henderson, 2013 IL 114040, ¶ 33. “[T]he ‘prime purpose’ of the exclusionary

rule ‘is to deter future unlawful police conduct and thereby effectuate the guarantee

of the Fourth Amendment against unreasonable searches and seizures.’ ” Illinois v.

Krull, 480 U.S. 340, 347 (1987) (quoting United States v. Calandra, 414 U.S. 338,

347 (1974)).

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¶ 48 The good-faith exception to the exclusionary rule has been codified in section

114-12(b)(1), (b)(2) of the Code of Criminal Procedure of 1963:

“(1) If a defendant seeks to suppress evidence because of the conduct of a

peace officer in obtaining the evidence, the State may urge that the peace

officer’s conduct was taken in a reasonable and objective good faith belief that

the conduct was proper and that the evidence discovered should not be

suppressed if otherwise admissible. The court shall not suppress evidence

which is otherwise admissible in a criminal proceeding if the court determines

that the evidence was seized by a peace officer who acted in good faith.

(2) ‘Good faith’ means whenever a peace officer obtains evidence:

(i) pursuant to a search or an arrest warrant obtained from a neutral and

detached judge, which warrant is free from obvious defects other than

non-deliberate errors in preparation and contains no material misrepresentation

by any agent of the State, and the officer reasonably believed the warrant to be

valid; or

(ii) pursuant to a warrantless search incident to an arrest for violation of a

statute or local ordinance which is later declared unconstitutional or otherwise

invalidated.” 725 ILCS 5/114-12(b)(1), (b)(2) (West 2012).

¶ 49 The Supreme Court has expanded the good-faith exception to the exclusionary

rule to include good-faith reliance upon binding appellate precedent that

specifically authorized a particular practice but was subsequently overruled. Davis

v. United States, 564 U.S. 229, ___, 131 S. Ct. 2419, 2429 (2011). The Davis

expansion of the good-faith exception to the exclusionary rule was recently adopted

by this court in LeFlore, 2015 IL 116799, ¶¶ 29-31.

¶ 50 Here, the appellate court rejected the State’s argument that the evidence should

not be suppressed because the officers acted in good-faith reliance on established

precedent. The appellate court held that no binding precedent specifically

authorized the officers’ conduct (see Davis, 564 U.S. at ___, 131 S. Ct. at 2429),

and the exception to the exclusionary rule announced in Davis is not applicable to

this case. 2015 IL App (4th) 140006, ¶ 60. At the time the appellate court issued its

decision in January 2015, it did not have the benefit of our recent decision in

LeFlore, 2015 IL 116799.

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¶ 51 In LeFlore, this court began its analysis by recognizing that “[t]he mere fact of a

fourth amendment violation does not mean that exclusion necessarily follows”

because there “is no constitutional right to have the evidence resulting from an

illegal search or seizure suppressed at trial.” LeFlore, 2015 IL 116799, ¶ 22.

Rather, the exclusionary rule has been applied only to “unusual cases” when its

application will deter future fourth amendment violations. LeFlore, 2015 IL

116799, ¶ 22. Exclusion of evidence is a court’s last resort, not its first impulse.

LeFlore, 2015 IL 116799, ¶ 22. Importantly, this court noted in LeFlore:

“In order for exclusion of the evidence to apply, the deterrent benefit of

suppression must outweigh the ‘substantial social costs.’ [United States

v. ]Leon, 468 U.S. [897,] 907 [(1984)]. ‘ “Exclusion exacts a heavy toll on both

the judicial system and society at large,” because it “almost always requires

courts to ignore reliable, trustworthy evidence bearing on guilt or innocence,”

and “its bottom-line effect, in many cases, is to suppress the truth and set the

criminal loose in the community without punishment.” ’ [United States

v. ]Stephens, 764 F.3d [327,] 335 [(4th Cir. 2014)] (quoting Davis, 564 U.S. at

___, 131 S. Ct. at 2427). ‘As this result conflicts with the “truth-finding

functions of judge and jury,” [citation] exclusion is a “bitter pill,” [citation]

swallowed only as a “last resort,” [citation].’ [Citation.] In order for the

exclusionary rule to be appropriate then, the deterrent benefits must outweigh

its heavy costs. Davis, 564 U.S. at ___, 131 S. Ct. at 2427.” LeFlore, 2015 IL

116799, ¶ 23.

¶ 52 We recognized in LeFlore that when there is no illicit conduct to deter, the

deterrent rationale loses much of its force and, thus, “exclusion is invoked only

where police conduct is both ‘sufficiently deliberate’ that deterrence is effective

and ‘sufficiently culpable’ that deterrence outweighs the cost of suppression.

[Citations.]” LeFlore, 2015 IL 116799, ¶ 24. We emphasized that in determining

whether the good-faith exception to the exclusionary rule applies in any case, the

inquiry is “ ‘whether a reasonably well trained officer would have known that the

search was illegal in light of all of the circumstances.’ [Citation.]” LeFlore, 2015 IL

116799, ¶ 25.

¶ 53 The State argues that the good-faith exception to the exclusionary rule should

apply for three reasons: (1) the officers relied on binding United States Supreme

Court precedent holding that dog sniffs are not fourth amendment searches; (2) the

officers relied on Illinois precedent holding that residents have no reasonable

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expectations of privacy in apartment building common areas; and (3) the officers

relied on federal precedent holding that dog sniffs outside residence doors were not

fourth amendment searches. According to the State, it was objectively reasonable

for the officers to rely in good faith on the legal landscape that existed at the time of

the dog sniff. Additionally, the State argues that the officers seized the evidence in

good-faith reliance on the search warrant.

¶ 54 The State cites United States v. Place, 462 U.S. 696 (1983), City of

Indianapolis v. Edmond, 531 U.S. 32 (2000), and Illinois v. Caballes, 543 U.S. 405

(2005), in arguing that officers relied on binding United States Supreme Court

precedent holding that dog sniffs are not fourth amendment searches. In Place, the

Supreme Court held that use of a drug-detection dog to sniff luggage at an airport

“did not constitute a ‘search’ within the meaning of the Fourth Amendment.”

Place, 462 U.S. at 707. In City of Indianapolis, the Supreme Court held that there

was no fourth amendment search when officers conducted a dog sniff of an

automobile at a highway checkpoint. City of Indianapolis, 531 U.S. at 40. In

Caballes, the Supreme Court held that “the use of a well-trained narcotics-detection

dog—one that ‘does not expose noncontraband items that otherwise would remain

hidden from public view,’ [citation]—during a lawful traffic stop generally does

not implicate legitimate privacy interests.” Caballes, 543 U.S. at 409 (quoting

Place, 462 U.S. at 707).

¶ 55 The appellate court determined that the United States Supreme Court precedent

did not specifically authorize the conduct of the officers in this case because those

cases did not involve use of drug-detection dogs to sniff a home. 2015 IL App (4th)

140006, ¶ 57. The appellate court recognized that use of a drug-detection dog to

sniff a home in the hopes of discovering incriminating evidence presents a very

different issue than use of drug-detection dogs on automobiles during a lawful

traffic stop and in public areas. 2015 IL App (4th) 140006, ¶ 57. We agree with the

appellate court that the United States Supreme Court precedent concerning use of

drug-detection dogs to sniff areas other than a home did not specifically authorize

the officers’ conduct in this case.

¶ 56 Indeed, contrary to the State’s argument, United States Supreme Court

precedent has long provided that the home has heightened expectations of privacy

and that at the core of the fourth amendment is “the right of a man to retreat into his

own home and there be free from unreasonable governmental intrusion.”

Silverman, 365 U.S. at 511. The Supreme Court has stressed “ ‘the overriding

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respect for the sanctity of the home that has been embedded in our traditions since

the origins of the Republic.’ ” Oliver, 466 U.S. at 178 (quoting Payton v. New York,

445 U.S. 573, 601 (1980)). The curtilage, being the area “immediately surrounding

and associated with the home” is also regarded as “part of home itself for Fourth

Amendment purposes.” Oliver, 466 U.S. at 180. Here, the police conduct involving

the warrantless use of a drug-detection dog at 3:20 a.m. at defendant’s apartment

door, located within a locked apartment building, is simply not supported by an

objectively reasonable good-faith belief that their conduct was specifically

authorized under any United States Supreme Court precedent.

¶ 57 The State next argues that the good-faith exception to the exclusionary rule

should apply because the officers relied on binding Illinois precedent holding that

residents had no reasonable expectations of privacy in apartment building common

areas. The State relies on People v. Smith, 152 Ill. 2d 229 (1992), and People v.

Lyles, 332 Ill. App. 3d 1 (2002), to assert that Illinois precedent established that

tenants in an apartment building have no reasonable expectation of privacy in

common areas.

¶ 58 In Smith, police officers went to the defendant’s apartment building, opened the

building’s unlocked rear door, and walked to a common-area hallway. While

standing in the hallway, the officers overheard a conversation relating to a murder

they were investigating. This court held that the officers’ conduct did not constitute

a search under the fourth amendment. Smith, 152 Ill. 2d at 245-46. Contrary to the

State’s assertion, Smith did not hold that tenants have no expectation of privacy in

common areas of locked apartment buildings. Rather, Smith concerned an

individual’s reasonable expectation of privacy in things overheard by the police

while standing in a common area of an unlocked apartment building. Consequently,

Smith does not support the State’s position.

¶ 59 In Lyles, police officers arrested three suspects emerging from the back of an

apartment building that had a locked outer door. While arresting the suspects, the

officers held open the outer door and subsequently ascended the staircase, where

they found two guns in a garbage can on the defendant’s back porch. The appellate

court in Lyles held that a tenant “has no reasonable expectation of privacy in

common areas of an apartment building that are accessible to other tenants and their

invitees.” Lyles, 332 Ill. App. 3d at 7. Here, the appellate court determined that

Lyles, an Appellate Court, First District decision, did not involve the use of a

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drug-detection dog and was not binding on the Appellate Court, Fourth District.

2015 IL App (4th) 140006, ¶ 58.

¶ 60 Instead, the appellate court determined that its own decision in Trull, 64 Ill.

App. 3d 385, was binding appellate court precedent relating to the officer’s

conduct. 2015 IL App (4th) 140006, ¶ 59. In Trull, the officers used keys found at

the site of a burglary to open the outer door to defendant’s apartment building. In

determining that the entry into a locked common area of an apartment building in

Trull violated the fourth amendment, the appellate court stated:

“A person’s legitimate expectations of privacy are to be protected. (Katz v.

United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507.) Federal

cases have indicated that the common areas of a locked apartment building are

protected under the fourth amendment. (United States v. Carriger (6th Cir.

1976), 541 F.2d 545; United States v. Fluker (9th Cir. 1976), 543 F.2d 709;

United States v. Case (7th Cir. 1970), 435 F.2d 766; United States v. Blank

(N.D. Ohio 1966), 251 F. Supp. 166.) *** We discern a marked difference

between an individual’s expectation of privacy in a locked apartment building

as compared to an unlocked one. It seems rather elementary to us that a locked

door is a very strong manifestation of a person’s expectation of privacy. Thus,

we conclude that the common entries and hallways of a locked apartment

building are protected by the fourth amendment.” Trull, 64 Ill. App. 3d at 389.

The appellate court determined that the conduct of the officers in entering the

defendant’s locked apartment building with a drug-detection dog was not

authorized under Trull. 2015 IL App (4th) 140006, ¶ 59.

¶ 61 The State contends that under Smith and Lyles, Trull was no longer good law.

The State further argues that the officers could reasonably rely on Smith and Lyles

to conduct their dog sniff because defendant had no reasonable expectation of

privacy in the common landing outside her apartment door under Smith and Lyles.

We reject the State’s argument. As explained earlier in this opinion, Smith did not

hold that tenants have no expectation of privacy in common areas of locked

apartment buildings; rather, Smith concerned an individual’s reasonable

expectation of privacy in things overheard by the police while standing in a

common area of an unlocked apartment building. Supra ¶ 58.

¶ 62 Moreover, at the time of the officers’ conduct in this case, Trull stood, and still

stands, as binding Appellate Court, Fourth District precedent extending the

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protection of the fourth amendment to the common areas of a locked apartment

building. We agree with the appellate court’s conclusion that there was no binding

Illinois precedent specifically authorizing the officers’ conduct in this case. More

critically, Trull constitutes binding Appellate Court, Fourth District precedent

finding similar police conduct unconstitutional.

¶ 63 Likewise, the State’s argument that Trull was no longer good law under Lyles is

not accurate. Both Trull and Lyles relied on federal precedent. Trull, an Appellate

Court, Fourth District case relied on federal cases holding that common areas of a

locked apartment building are protected under the fourth amendment. See United

States v. Carriger, 541 F.2d 545 (6th Cir. 1976); United States v. Fluker, 543 F.2d

709 (9th Cir. 1976); United States v. Case, 435 F.2d 766 (7th Cir. 1970); United

States v. Blank, 251 F. Supp. 166 (N.D. Ohio 1966).

¶ 64 Lyles, an Appellate Court, First District case, noted that Trull relied on Case,

435 F.2d 766, among other federal cases, and that Case was subsequently overruled

in United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991). Lyles relied on

federal cases holding that a tenant had no reasonable expectation of privacy in the

common areas of apartment buildings, even if the door to the apartment building is

locked. See United States v. Barrios-Moriera, 872 F.2d 12, 14-15 (2d Cir. 1989),

overruled on other grounds by Horton v. California, 496 U.S. 128 (1990); United

States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977); United States v. Nohara, 3 F.3d

1239, 1242 (9th Cir. 1993); see also United States v. Miravalles, 280 F.3d 1328,

1329, 1333 (11th Cir. 2002) (no reasonable expectation of privacy where the lock

on the front door of the apartment building was not working on the day police

entered the building).

¶ 65 Lyles did not hold that Trull was no longer good law. Rather, Lyles simply

recognized that one of the federal cases relied on in Trull was subsequently

overruled, and that there were cases from other federal circuits holding that tenants

have no reasonable expectation of privacy in the common areas of a locked

apartment building. Lyles merely showed a split in authority in the federal courts,

and created a conflict between the First and Fourth Districts of the Illinois

Appellate Court.

¶ 66 Here, the appellate court properly determined that Trull, an Appellate Court,

Fourth District case, was binding authority in this case, and that the Appellate

Court, First District case of Lyles was distinguishable and not binding in the Fourth

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District. See People v. Collings, 95 Ill. App. 3d 325 (1981) (rulings of the appellate

court of any district are binding precedent on all circuit courts if there are no

contrary rulings of another district on the same issue but rulings are not binding

precedent upon the other districts of the appellate court). We therefore reject the

State’s argument that the good-faith exception to the exclusionary rule should

apply because the officers could reasonably rely on Smith and Lyles.

¶ 67 The State also cites federal cases holding that officers acted in good faith when

they conducted pre-Jardines dog sniffs outside homes. United States v. Gutierrez,

760 F.3d 750 (7th Cir. 2014); United States v. Davis, 760 F.3d 901 (8th Cir. 2014);

United States v. Winters, 782 F.3d 289 (6th Cir. 2015); United States v. Givens, 763

F.3d 987 (8th Cir. 2014); United States v. Hunter, 770 F.3d 740 (8th Cir. 2014);

Jones v. United States, 14 F. Supp. 3d 811 (W.D. Tex. 2014); United States v.

Parrilla, No. 13 Cr. 360(AJN), 2014 WL 2111680 (S.D.N.Y. May 13, 2014). The

State urges this court to join those other jurisdictions in finding that the officers did

not act culpably by conducting the pre-Jardines dog sniff. Significantly, as even the

State acknowledges in its brief, these cases relied on binding precedent of their own

jurisdictions in applying the good-faith exception to officer conduct that occurred

prior to the United States Supreme Court decision in Jardines. Nevertheless, the

State argues that even if there were no binding precedent specifically authorizing

the officers’ conduct, the officers could have relied on the “legal landscape” to

perform a dog sniff in an apartment building common area. Again, the State focuses

on nonbinding precedent of other jurisdictions. The State’s reliance on those cases

is irrelevant to our inquiry of whether the officers in this case acted in good faith

based on binding precedent when existing Illinois Appellate Court, Fourth District

authority (Trull) was applicable.

¶ 68 Not only was there no binding precedent specifically authorizing the officers’

conduct in this case, Trull constitutes binding Appellate Court, Fourth District

authority specifically prohibiting the conduct. We therefore hold that the good-faith

exception to the exclusionary rule announced in Davis, 564 U.S. at ___, 131 S. Ct.

at 2429, and adopted in LeFlore, 2015 IL 116799, does not apply to the officers’

warrantless use of a drug-detection dog at defendant’s apartment door, located

within a locked apartment building.

¶ 69 The State also argues that the officers seized the evidence in good-faith reliance

on the search warrant. Generally, evidence will not be excluded when officers

reasonably relied on a search warrant issued by a neutral magistrate, even when the

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warrant application was later determined to be insufficient to establish probable

cause. Leon, 468 U.S. at 913, 922. The State acknowledges that the officers’

reliance on the warrant must be reasonable. Given “ ‘the purpose of the

exclusionary rule is to deter unlawful police conduct, *** evidence obtained from a

search should be suppressed only if it can be said that the law enforcement officer

had knowledge, or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.’ ” Leon, 468 U.S. at 919 (quoting

United States v. Peltier, 422 U.S. 531, 542 (1975)). At the time of the officers’

conduct in this case, Trull, holding that common areas of locked apartment

buildings are protected by the fourth amendment, was binding Appellate Court,

Fourth District precedent. Trull, 64 Ill. App. 3d at 387. The officers are, therefore,

charged with the knowledge that the search violated the fourth amendment under

Trull. We find that the officers’ reliance on the warrant issued on the basis of

information obtained in violation of Trull was unreasonable.

¶ 70 The only cases the State relies on for this point are from other jurisdictions. The

State cites State v. Scull, 862 N.W.2d 562, 565-66 (Wis. 2015), where officers

performed a pre-Jardines dog sniff in front of Scull’s house, then obtained a search

warrant based on the dog’s positive alert. The Wisconsin Supreme Court held that

the good-faith exception to the exclusionary rule applied to evidence seized in the

subsequent search of Scull’s home because “the officers ultimately obtained a

warrant to search Scull’s home and that warrant was issued by a detached and

neutral commissioner,” whose “decision to grant the warrant was a reasonable

application of the unsettled state of the law at the time the warrant issued.” Scull,

862 N.W.2d at 568.

¶ 71 Scull is not controlling and is distinguishable from this case. In contrast to the

“unsettled” state of the law in Wisconsin, at the time of the officers’ conduct in this

case, Trull, holding that common areas of locked apartment buildings are protected

by the fourth amendment, was binding Appellate Court, Fourth District precedent

in Illinois. Trull, 64 Ill. App. 3d at 387.

¶ 72 The State also cites United States v. Ponce, 734 F.3d 1225, 1228-29 (10th Cir.

2013), where the court similarly applied the good-faith exception to a pre-Jardines

warrant obtained using a dog sniff outside a garage because the officer reasonably

could have believed that the dog sniff was not a fourth amendment search and that

the area was not within the curtilage of the house, and thus could reasonably rely on

the warrant. We find Ponce distinguishable from the facts of this case. Ponce

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involved a dog sniff outside a garage, not a dog sniff of a landing in a locked

apartment building.

¶ 73 For these reasons, we hold that the good-faith exception to the exclusionary rule

is not applicable.

¶ 74 III. Whether the Remaining Evidence Established Probable Cause for Issuance

of the Search Warrant

¶ 75 The State argues that even if the officers’ use of the drug-detection dog in this

case violated the fourth amendment and the good-faith exception to the

exclusionary rule does not apply, the remaining evidence in the warrant application

established probable cause to search defendant’s apartment. “[I]f the lawfully

obtained information amounts to probable cause and would have justified issuance

of the warrant, apart from the tainted information, the evidence seized pursuant to

the warrant is admitted.” People v. Free, 94 Ill. 2d 378, 399 (1983). The “existence

of probable cause in a particular case means simply that the totality of the facts and

circumstances *** was sufficient to warrant a person of reasonable caution to

believe that the law was violated and evidence of it is on the premises to be

searched.” (Internal quotation marks omitted.) People v. McCarty, 223 Ill. 2d 109,

153 (2006). The “probable cause requirement is rooted in principles of common

sense” and a court asks “whether, given all the circumstances set forth in the

affidavit *** there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” (Internal quotation marks omitted.) McCarty, 223

Ill. 2d at 153.

¶ 76 The trial court determined that if the paragraphs regarding the dog sniff were

excised from the affidavit for a search warrant, the remaining facts pleaded were

insufficient to establish probable cause for the issuance of a search warrant. Aside

from the dog sniff evidence, the application included an uncorroborated

Crimestoppers tip that defendant was receiving shipments of marijuana from her

brother in California, whose name was unknown; she had recently received a

two-pound package of marijuana on November 21, 2012; that she was selling two

pounds of marijuana per week; and that defendant had sold ecstasy to the tipster’s

girlfriend.

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¶ 77 In considering an informant’s tip, the court must consider the detail of the tip,

whether the tip established the basis of the informant’s knowledge, whether the

informant witnessed criminal behavior, and whether the tip accurately predicts

future activity of the suspect. See People v. Kline, 355 Ill. App. 3d 770 (2005).

Here, the anonymous tipster did not indicate how knowledge of defendant’s alleged

criminal activity was gained, nor did the tipster claim to have witnessed

defendant’s criminal behavior or provide an address where defendant was allegedly

receiving and selling contraband. The tipster did not provide a name of the person

allegedly sending defendant the contraband. An uncorroborated anonymous tip

alone is insufficient to establish probable cause. See People v. Ledesma, 206 Ill. 2d

571, 587 (2003), overruled on other grounds in People v. Pitman, 211 Ill. 2d 502

(2004).

¶ 78 The State also relies on the package from California addressed to defendant

seen by Detective Mecum in the apartment building. However, the record does not

indicate when Detective Mecum observed the package, where in the building the

package was observed, or the dimensions of the package to indicate whether it

could reasonably be tied to drug sales.

¶ 79 We agree with the trial court and the appellate court that the application for

search warrant in this case, absent the dog sniff, was insufficient to establish

probable cause for a search warrant of defendant’s home. As the appellate court

aptly noted:

“Absent the dog sniff, the evidence relied upon in the complaint and

affidavit for a search warrant is scanty at best. We cannot determine from the

record the specific time on January 10 when [Detective] Mecum observed a

package addressed to defendant with a return address shipping label from an

individual in California. [Defendant’s personal social media] showing images

favoring the legalization of marijuana and images of marijuana and currency

coupled with defendant’s prior police contacts for possession are not sufficient

to establish probable cause for a search warrant of defendant’s home.” 2015 IL

App (4th) 140006, ¶ 64.

We likewise find that the remaining evidence in the complaint and affidavit for a

search warrant in this case was insufficient to support probable cause for issuance

of a search warrant.

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¶ 80 CONCLUSION

¶ 81 We hold that the warrantless use of a drug-detection dog at 3:20 a.m. at

defendant’s apartment door, located within a locked apartment building, violated

defendant’s rights under the fourth amendment to the United States Constitution.

U.S. Const., amend. IV. We conclude that the good-faith exception to the

exclusionary rule does not apply. We further determine that, absent the dog sniff,

the evidence relied upon in the complaint and affidavit for search warrant was

insufficient to establish probable cause for a search warrant of defendant’s home.

We affirm the judgment of the appellate court and affirm the trial court’s judgment

granting defendant’s motion to suppress.

¶ 82 Affirmed.

¶ 83 CHIEF JUSTICE GARMAN, specially concurring:

¶ 84 I agree with the majority’s conclusion that the dog sniff at issue here violated

the fourth amendment as contemplated in Florida v. Jardines. I likewise take no

issue with its analysis on the good-faith exception to the exclusionary rule and its

analysis on the other information contained within the warrant application.

However, I would focus on the central location of the fourth amendment interest to

address the Jardines question. This analysis produces uniform results for multiunit

dwellings and recognizes the degree to which residents share spaces in a multiunit

dwelling.

¶ 85 The State notes Jardines depended on fourth amendment property-rights

analysis and that the concurrence finding a violation of a “reasonable expectation

of privacy” under Katz v. United States did not carry the day. See generally Florida

v. Jardines, 569 U.S. ___, ___, 133 S. Ct. 1409, 1418-20 (2013) (Kagan, J.,

concurring, joined by Ginsburg and Sotomayor, JJ.). Thus, the State contends

Jardines applies only under a property-rights analysis framework. I have concerns

about this conclusion. While the United States Supreme Court’s majority opinion

confined its analysis to trespass on a constitutionally protected area, it did so

through a finding that the porch was curtilage. The curtilage, unlike the open fields,

is protected by the fourth amendment. United States v. Dunn, 480 U.S. 294, 300

(1987). Whether an area is protected as curtilage depends on “factors that bear upon

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whether an individual reasonably may expect that the area in question should be

treated as the home itself.” Id. (citing Oliver v. United States, 466 U.S. 170, 180

(1984)). The Supreme Court has specifically “defined the curtilage, as did the

common law, by reference to the factors that determine whether an individual

reasonably may expect that an area immediately adjacent to the home will remain

private.” Oliver, 466 U.S. at 180. Where the curtilage is distinguished from

unprotected open fields by “reference to the factors that determine whether an

individual reasonably may expect” that area “will remain private,” the curtilage

finding may inherently incorporate a reasonable expectation of privacy. Id.

¶ 86 Even if Jardines stands only for a property-based analysis, the landing

immediately outside defendant’s front door may yet qualify as curtilage. 1 Notably,

the curtilage need not be “the home itself”; instead, the question is whether it

qualifies to be “treated as the home itself.” (Emphasis added.) Dunn, 480 U.S. at

300. The “central component” of the question is “whether the area harbors the

‘intimate activity associated with the sanctity of a man’s home and the privacies of

life.’ ” (Internal quotation marks omitted.) Id. (quoting Oliver, 466 U.S. at 180). To

answer this question, the Supreme Court has stated a four-factor test: “the

proximity of the area claimed to be curtilage to the home, whether the area is

included within an enclosure surrounding the home, the nature of the uses to which

the area is put, and the steps taken by the resident to protect the area from

observation by people passing by.” Id. at 301. The Court specifically has cautioned

against a mechanistic application of these factors. “We do not suggest that

combining these factors produces a finely tuned formula that, when mechanically

applied, yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these

factors are useful analytical tools only to the degree that, in any given case, they

bear upon the centrally relevant consideration—whether the area in question is so

intimately tied to the home itself that it should be placed under the home’s

‘umbrella’ of Fourth Amendment protection.” Id.

1

There is no per se rule that apartments do not have curtilage for fourth amendment purposes. In

People v. McNeal, this court assumed, without deciding, that a garbage can containing the

defendant’s gun was located in the curtilage to his residence, which was described as an “apartment”

and a “townhouse.” 175 Ill. 2d 335, 342, 343 (1997). People v. Vaglica found that the back porch of

an apartment, accessible from a backyard, was curtilage. 99 Ill. App. 2d 194, 197 (1968)

(“Traditionally, courts have held that the curtilage, whether fenced or open, is an area protected

from unreasonable searches. The porch in question, being within the curtilage, will therefore be

considered as within the zone of protection.”).

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¶ 87 The majority opinion addresses, as two separate questions, whether defendant’s

landing and door qualified as curtilage under Jardines and whether defendant’s

landing and door qualified as curtilage under the four-part Dunn test. The Supreme

Court has stated that “curtilage questions should be resolved with particular

reference to four factors” as enumerated in Dunn (id.), yet in Jardines it did not

apply those factors or even cite Dunn. However, it does not appear this constitutes

an abandonment or abrogation of the Dunn four-factor test. The Supreme Court

appears to have found Jardines’s front porch to be such a textbook example of

curtilage that it found no need to assess each of the four factors. “Here there is no

doubt that the officers entered [the curtilage]: The front porch is the classic

exemplar of an area adjacent to the home and ‘to which the activity of home life

extends.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S.

at 182 n.12). By all appearances, then, Dunn remains the dominant curtilage test,

and I would apply its factors in a manner consistent with the facts in Jardines,

rather than trying to address the two questions separately. I would also closely

examine the fourth amendment interest protected in Jardines.

¶ 88 Cases assessing whether to consider an area protected curtilage fall into two

general classes, revealing that curtilage actually serves two distinct fourth

amendment purposes. The first class of cases examines whether an area outside the

home should be granted equivalent protection to the home, for activities and

possessions within that area. In effect, the curtilage in these cases enlarges the

home. The second class of cases is less concerned with the space for life activities

and instead examines the degree to which surveillance by law enforcement intrudes

upon the life activities within the home. Such cases are more concerned with the

vantage point of police. The curtilage in these cases shields the core fourth

amendment area of the home itself. 2

¶ 89 In Dunn, the defendant was convicted of conspiring to manufacture

phenylacetone and amphetamine based on what drug enforcement agents observed

2

These two distinct purposes also happen to line up with the two primary definitions of the

transitive verb “to harbor,” which the Supreme Court and this court have employed in describing

how “the primary focus is whether the area in question harbors those intimate activities associated

with domestic life and the privacies of the home.” Dunn, 480 U.S. at 301 n.4; Merriam-Webster’s

Collegiate Dictionary 529 (10th ed. 1998) (“1 a : to give shelter or refuge to b : to be the home or

habitat of”); see also People v. Pitman, 211 Ill. 2d 502, 516 (2004); People v. Nielson, 187 Ill. 2d

271, 281 (1999).

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within his barn. Dunn, 480 U.S. at 296-98. Agents sought a search warrant after

observing what appeared to be a phenylacetone laboratory within the barn, by

peering over its doors. The Supreme Court considered the four factors in turn.

Noting that the barn was 50 yards from the fence surrounding the house, and 60

yards from the house itself, the Court found the first factor cut against a finding of

curtilage. Id. at 302. Next, the Court noted that the barn was located outside the

fence surrounding the house and concluded “it is plain that the fence surrounding

the residence serves to demark a specific area of land immediately adjacent to the

house that is readily identifiable as part and parcel of the house.” Id.

¶ 90 As to the third factor, the Court found it “especially significant that the law

enforcement officials possessed objective data indicating that the barn was not

being used for intimate activities of the home.” (Emphasis added.) Id. The Court

then described signs of various activities of phenylacetone production in the barn,

noting that “the above facts indicated to the officers that the use to which the barn

was being put could not fairly be characterized as so associated with the activities

and privacies of domestic life that the officers should have deemed the barn as part

of respondent’s home.” Id. at 303. Finally, the Court noted the defendant had done

little to protect the barn area from observation by those standing in the open fields;

various interior fences on the farm property served no function “other than that of

the typical ranch fence,” to corral livestock and not to prevent human observation.

Id.

¶ 91 The incriminating activities and search in Dunn occurred outside the physical

structure of the home itself. Whether the barn was curtilage was, fundamentally, a

question of whether Dunn could carry out activities and store possessions there

“under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301. Dunn

fits within the home-extending curtilage cases. See also Oliver, 466 U.S. at 179

(noting that curtilage, in contrast to the open fields, extends “the setting for those

intimate activities”). This court has reached the same result under very similar

circumstances in assessing whether a building outside the home qualifies as

curtilage. See, e.g., Pitman, 211 Ill. 2d at 518.

¶ 92 On the other hand, the curtilage may also act as a buffer to shield the core fourth

amendment area within the home, and these cases typically focus on where law

enforcement officers stand in making their observations. This court has recognized

that, where an officer uses his own natural senses from a permitted vantage point on

public property to discover what is occurring inside a private residence, it is not a

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search in violation of the fourth amendment. People v. Wright, 41 Ill. 2d 170, 175

(1968). This court noted “the absence of a trespass under our reading of Harris is of

major if not decisive importance in cases involving the plain-view doctrine.” Id. at

176. The question of trespass in the curtilage is, as a general matter, resolved by

inquiry into the license afforded the general public to approach. Jardines, 569 U.S.

at ___, 133 S. Ct. at 1415-16 (“This implicit license typically permits the visitor to

approach the home by the front path, knock promptly, wait briefly to be received,

and then (absent invitation to linger longer) leave. Complying with the terms of that

traditional invitation does not require fine-grained legal knowledge; it is generally

managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a

police officer not armed with a warrant may approach a home and knock, precisely

because that is ‘no more than any private citizen might do.’ Kentucky v. King, 563

U. S. ___, ___[, 131 S. Ct. 1849, 1862] (2011) ***.”).

¶ 93 “On the other hand, if the police stray from that path to other parts of the

curtilage in order to conduct the surveillance, then the use of natural sight or

hearing or smell to detect what is inside is a search within the meaning of the Fourth

Amendment.” 1 Wayne R. LaFave, Search and Seizure § 2.3(c), at 756-57 (5th ed.

2012). The focus thus becomes not the outside area observed and the activities to

which it has been put, but rather where police stand in observing defendants’

activities within the home itself. See, e.g., Hardesty v. Hamburg Township, 461

F.3d 646, 652-53 (6th Cir. 2006) (finding that home’s back deck, from which

officers peered through window to observe a bloodied and unresponsive young

man, was part of the home’s curtilage); People v. Greene, 289 Ill. App. 3d 796,

799-800 (1997) (describing officers’ entry onto a screened porch to observe

defendant through the window and concluding the porch qualified as curtilage). In

such cases, the curtilage question does not govern an extended area for activities; it

determines whether the area acts as curtilage to shield the interior of the home. The

protection claimed by defendant in this case fits neatly within the home-shielding

curtilage cases. There is no claim defendant’s activities or possessions were outside

the home but within an area that should be protected as though it were the home.

Instead, defendant’s motion to suppress relies on the vantage point employed by

police to observe what was taking place within her apartment.

¶ 94 Somewhat complicating our analysis of this question is the Jardines Court’s

brevity in holding that front porch to be curtilage. “The front porch is the classic

exemplar of an area adjacent to the home and ‘to which the activity of home life

extends.’ ” Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S.

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at 182 n.12 (finding that field of marijuana a mile from petitioner’s home was

unprotected “open fields” and not curtilage)). Consideration of the Dunn factors,

however, yields important similarities between the protection found in Jardines

and the protection claimed here. The front porch is, naturally, extremely close to

the house. There was no discussion in Jardines about any enclosure surrounding

the porch or the home. We can reasonably conclude the Court intended its curtilage

finding to apply to enclosed and unenclosed porches alike. The front door

obviously acts a passage into the house, and there is no further discussion of home

activities taking place there.

¶ 95 However, whether we presume the porch was enclosed or unenclosed, Jardines

could not have engaged in his cultivation of cannabis on the porch with any

expectation it would be “placed under the home’s ‘umbrella’ of Fourth Amendment

protection.” Dunn, 480 U.S. at 301. Jardines does not turn on protecting a zone

outside the house for activities and possessions. Instead, the relevant question in

Jardines was the vantage point of the officers on the curtilage and their actions in

observing Jardines’s activities within the home. The porch’s extreme proximity to

the house and its status as a primary entrance to the house are thus particularly

important. Viewed in this light, Jardines must be understood as a case in which the

curtilage acts as a shield. While the porch was deemed to be a “constitutionally

protected area,” the property-based fourth amendment interest to be vindicated was

centered within the home. Jardines, 569 U.S. at ___, 133 S. Ct. at 1415. “This right

would be of little practical value if the State’s agents could stand in a home’s porch

or side garden and trawl for evidence with impunity; the right to retreat would be

significantly diminished if the police could enter a man’s property to observe his

repose from just outside the front window.” Id. at ___, 133 S. Ct. at 1414.

¶ 96 Both proximity and acting as an entry to the home are equally present in

defendant’s case. In every relevant sense, defendant’s front door and landing

appear indistinct from Jardines’s front door and porch. Were this court to hold that

an apartment uniformly lacks fourth amendment curtilage, we would additionally

hold that those who live in apartments have less property-based fourth amendment

protection within their homes than those who live in detached housing. This

conclusion would, likewise, apply to those who live in duplexes, condominiums,

and all other forms of multiunit housing.

¶ 97 I would conclude that, where officers carry out a canine sniff of the door to an

apartment or other dwelling unit over which the defendant has exclusive control, a

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search is being carried out, and the fourth amendment applies. The fact that

defendant lived within a locked apartment building is helpful to her argument that

her front door and landing were curtilage, but not dispositive. The State notes that

another resident may grant police entry to the common areas of the apartment

building, but nothing indicates defendant’s fellow residents may give the police

license to carry out a dog sniff of the door. Further, there is no indication the front

door and porch in Jardines were anything other than physically open to the world.

Recognizing that the fourth amendment interest here centers within the home

likewise produces a uniform result for multiunit dwellings irrespective of whether

the unit’s door is within a locked building, within an unlocked building, or opens

directly onto outdoor private property. In such cases, the front door and area

immediately surrounding it must be viewed as “so intimately tied to the home itself

that it should be placed under the home’s ‘umbrella’ of Fourth Amendment

protection,” due to its extreme proximity to that core fourth amendment area and its

entry into that area. Dunn, 480 U.S. at 301.

¶ 98 Recognizing that the curtilage question in this case protects the core fourth

amendment area within the home does not, on the other hand, lead to a result that

every police entry into a common area of an apartment building will be a search. To

the extent a defendant might claim curtilage as an extended area for the activities of

the home, courts must recognize the individual facts and circumstances indicating

defendant shares that area with others. See, e.g., People v. Smith, 152 Ill. 2d 229,

245 (1992) (finding no search occurred because “the area where the officers

overheard defendant’s conversation was a common area shared by other tenants,

the landlord, their social guests and other invitees”; area was unlocked; defendant’s

voice was raised; and officers employed only their natural senses). Such shared

control directly impacts the license that may be granted to the police or public.

¶ 99 Police here exceeded any license offered to the public or that might have been

offered by one of defendant’s fellow tenants. Defendant herself neither granted nor

implied any license to approach with a drug-detecting dog. Her front door and

landing are, in all relevant respects, identical to the front door and porch in

Jardines. The fourth amendment interest to be vindicated here centers within her

apartment, and she employs the curtilage concept only as a shield for that core area.

These reasons all militate in favor of a finding that, under Jardines, police carried

out a search in violation of the fourth amendment with a warrantless dog sniff of her

apartment door.

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¶ 100 This approach yields a uniform result within the homes of multiunit residents

and likewise recognizes the degree to which they share space for activities and

possessions outside the home.

¶ 101 For the foregoing reasons, I specially concur.

¶ 102 JUSTICE THOMAS, dissenting:

¶ 103 I disagree with the majority’s holding that the common area of the hallway

landing outside of defendant’s apartment constituted curtilage under the

property-based trespass analysis of Florida v. Jardines, 569 U.S. ___, 133 S. Ct.

1409 (2013). The better view is that the concept of curtilage has no application to

the common areas of multiple-unit structures. See 1 Wayne R. LaFave, Search and

Seizure § 2.2(g), at 50; § 2.3(c), at 55 (5th ed. Supp. 2015). I would also reject

defendant’s alternative argument that she had a reasonable expectation of privacy

in the common area of the apartment building. The great weight of federal authority

holds that there is no reasonable expectation of privacy in the common areas of an

apartment building, even if it is locked or secured. See, e.g., United States v.

Nohara, 3 F.3d 1239 (9th Cir. 1993) (holding that defendant has no reasonable

expectation of privacy in common area of a secured apartment building); United

States v. Holland, 755 F.2d 253 (2d Cir. 1985) (same); United States v. Eisler, 567

F.2d 814 (8th Cir. 1977) (same).

¶ 104 I. Facts

¶ 105 Urbana police department’s Crimestoppers hotline received a tip that defendant

was selling two pounds of marijuana per week, had received shipments of

marijuana from her brother in California, and had sold ecstasy to the tipster’s

girlfriend. Officer Matthew Mecum went to defendant’s apartment building on

January 10, 2013, to confirm defendant’s address. The three-story, twelve-unit

building had two sides with two outer doors that led to two common area stairwells

that accessed six apartments per side, two per story. Defendant lived on the east

side of the building.

¶ 106 Officer Mecum knocked on the outer door to defendant’s side of the building

and a resident let him in. At the time, Mecum was wearing blue jeans and a winter

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jacket, and he did not display any indicia to show that he was a police officer.

Mecum observed a package addressed to defendant at apartment No. 10 from “Ben

Jones in Oakland, California.”

¶ 107 Later that night, Officer Michael Cervantes took a trained narcotics-detection

dog named Hunter to defendant’s apartment building. The common entrance that

accessed the east stairwell leading to defendant’s apartment was locked, but

another officer who was already inside opened the door for Cervantes. Once inside

the outer common door, there was nothing obstructing the path to the third-floor

landing.

¶ 108 Hunter alerted to the presence of drugs outside of defendant’s apartment door in

the common area of the third-floor landing. Located on that landing were the doors

for defendant’s apartment (unit No. 10), another apartment (unit No. 9) and a

storage compartment. Hunter was allowed to sniff in the common area near unit

No. 9 and in the common area near the two first-floor apartments. He did not alert

to the aroma of drugs at any of those other locations. 3

¶ 109 Officer Mecum prepared a complaint and affidavit for a search warrant that

included the Crimestoppers information, defendant’s past history with cannabis,

the information on her Facebook page, and the fact that Mecum had observed the

package addressed to defendant from California. A judge authorized the warrant.

During a subsequent search of defendant’s apartment, the police seized 1011.99

grams of cannabis, assorted drug paraphernalia and United States currency.

¶ 110 II. No Trespass of the Curtilage Occurred

¶ 111 Justice Kilbride, writing for a majority of this court, holds that the common area

of the landing outside of defendant’s apartment door qualifies as curtilage under

Jardines. Justice Kilbride concludes that this is so for several reasons. First, he

finds that the outside common door to the building had a locking mechanism and

the common stairwell behind it was therefore an area of “limited access” that was

“not accessible to the general public.” Supra ¶¶ 33, 37. And second, he finds it

significant that the officers entered “in the middle of the night.” Supra ¶ 33.

3

The dog did not search inside any of the apartments; he sniffed the air outside of them while

being walked through the common hallway.

- 33 -

¶ 112 Both points relied upon by the majority—the locked common door and the

nighttime nature of the visit—are irrelevant to any discussion of the issue presented

in this case as to the scope of the curtilage. The crucial facts in Jardines were that

“[t]he officers were gathering information in an area belonging to Jardines and

immediately surrounding his house—in the curtilage of the house, which [the Court

has] held enjoys protection as part of the home itself. And they gathered that

information by physically entering and occupying the area to engage in conduct not

explicitly or implicitly permitted by the homeowner.” (Emphasis added.) Jardines,

569 U.S. at ___, 133 S. Ct. at 1414.

¶ 113 Here, in contrast to Jardines, the defendant as lessee of apartment No. 10 had

no right to explicitly or implicitly exclude the officers from physically entering or

occupying the area of the third-floor landing. “[T]he concept of curtilage has little

if any application to commercial structures or to multiple-unit [apartment]

dwellings,” and therefore a dog sniff in the common areas of such structures

“would likely be deemed a non-search” by the United States Supreme Court. 1

Wayne R. LaFave, Search and Seizure § 2.2(g), at 50 (5th ed. Supp. 2015). See also

Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007) (areas of outside individual

units of duplex not “curtilage” with respect to either unit if shared with occupants

of other unit); see also State v. Williams, 862 N.W.2d 831, 838 (N.D. 2015)

(interest in common hallway was not exclusive and therefore the hallway “was not

curtilage”); State v. Nguyen, 841 N.W.2d 676, 682 (N.D. 2013) (even though the

main entrances were locked and secured at all times and officer gained entry by

catching the door after another person gained entry, there was no search under

Jardines where dog alerted to drugs within a particular apartment because the

curtilage “concept is significantly modified when applied to a multifamily

dwelling.”).

¶ 114 Unlike in Jardines, the area in question here did not belong to defendant, nor

did she have exclusive control over it, and there was therefore no trespass as far as

defendant was concerned. Everyone understands that tenants of an apartment

building do not own or possess the common areas. The majority’s analysis ignores

that a large amount of people that defendant has no control over have access to the

common areas outside of defendant’s apartment door; the list includes the

occupants of the other 11 apartments and anyone they let in, plus the landlord and

anyone he lets in, plus anyone who is let in by someone who is already inside.

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¶ 115 The majority makes much of the notion that the area behind the locked common

door was not readily accessible to the public. Aside from being irrelevant, this does

not even appear to be true, as Officer Mecum, who went to the unit in plain clothes,

was let into the building by another tenant after simply knocking on the door. The

officer also no doubt could have easily gained access by following an occupant

through the door before it latched. See Nguyen, 841 N.W.2d at 678-79 (officer

gained access to the secured building by catching the door as an unidentified female

either exited or entered); see also 1 Wayne R. LaFave, Search and Seizure § 2.3(c),

at 59 n.145.70 (5th ed. Supp. 2015) (discussing Nguyen, 841 N.W.2d at 682, as

holding that because of the lack of any expectation of privacy in the area outside of

one’s apartment door, “the curtilage ‘concept is significantly modified when

applied to a multifamily dwelling’ ”). At any rate, the concept of curtilage does not

apply to an area that is not within a resident’s property rights.

¶ 116 For the same reason, it is irrelevant that the visit by Officer Cervantes and

Hunter occurred “in the middle of the night.” Justice Kilbride quotes language from

Justice Alito’s dissent in Jardines: “The officer ‘adhered to the customary path; he

did not approach in the middle of the night; and he remained at the front door for

only a very short period (less than a minute or two).’ ” Supra ¶ 43 (quoting

Jardines, 569 U.S. at ___, 133 S. Ct. at 1423 (Alito, J., dissenting, joined by

Roberts, C.J., Kennedy and Breyer, JJ.)). But this language quoted from the

Jardines dissent—that is now relied upon by Justice Kilbride—was written to show

that the officers in Jardines had a license or an implied invitation to enter onto the

curtilage of Jardines’s property to conduct a dog sniff despite the area being

curtilage. The quoted language was not written, as Justice Kilbride apparently

surmises, to settle a dispute as to whether the area in question was in fact curtilage.

All nine justices in Jardines agreed that the porch owned by the defendant in that

case was curtilage. In contradistinction to Jardines, the fact that the dog sniff in the

present case occurred in the common area outside of any area belonging to

defendant makes the time of day irrelevant because the area was not curtilage and

therefore a license was not required to satisfy the fourth amendment.

¶ 117 Another reason that the majority suggests for finding the common area of the

landing to be curtilage is based on the four factors set forth in United States v.

Dunn, 480 U.S. 294, 301 (1987). There, the Court stated that curtilage questions

should be resolved with particular reference to four factors: (1) the proximity of the

area claimed to be curtilage to the home; (2) whether the area is included within an

enclosure surrounding the home; (3) the nature of the uses to which the area is put;

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and (4) the steps taken by the resident to protect the area from observation by

people passing by. Id. The Court cautioned that it was not suggesting “that

combining these factors produces a finely tuned formula that, when mechanically

applied, yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these

factors are useful analytical tools only to the degree that, in any given case, they

bear upon the centrally relevant consideration—whether the area in question is so

intimately tied to the home itself that it should be placed under the home’s

‘umbrella’ of Fourth Amendment protection.” Id.

¶ 118 The majority calls the Dunn factors a “test” and concludes that all four weigh in

favor of finding that the landing was the curtilage of defendant’s apartment. Supra

¶¶ 34, 37. At the outset, I question the sufficiency of the Dunn factors to determine

whether a dog sniff in a common area of a multiunit dwelling is a search where the

tenants have a lessened expectation of privacy in such areas by virtue of their

neighbors and others’ right to use or occupy the same common area. See State v.

Williams, 2015 ND 103, ¶ 24, 862 N.W.2d 831 (“An analysis of the Dunn factors

regarding curtilage, alone, is insufficient to determine whether the drug sniff was a

search; a reasonable expectation of privacy analysis must also be conducted. It is

undisputed Williams [as a condominium owner] has a property interest in the

hallway, but his interest is not exclusive. *** [T]he common hallway of the

condominium building was available for the use of the other co-owners and their

guests and others having legitimate reasons to be on the premises, and Williams

cannot unilaterally exclude individuals from the area because his co-owners also

have a property interest in the shared space. [Citation.] *** [W]e conclude the

condominium building’s common hallway was not curtilage, and Williams had no

reasonable expectation that the shared space would be free from any intrusion.”).

Also, I would note that the United States Supreme Court has never used the Dunn

factors to find that an area not belonging to defendant’s home can be his curtilage.

See generally 1 Wayne R. LaFave, Search and Seizure § 2.2(g), at 50; § 2.3(c), at

55 (5th ed. Supp. 2015).

¶ 119 In any event, I disagree with the majority’s application of the Dunn factors and

would reach the exact opposite conclusion, finding that all four factors weigh in

favor of finding that the common landing area was not curtilage.

¶ 120 With respect to the first factor, the majority finds that the proximity of the

landing to defendant’s apartment strongly supports an inference that the landing be

treated as curtilage. I would not weigh this factor in favor of a finding of curtilage

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in this case, however, because the landing was not on defendant’s property and she

had no property right in it. And, although it was close to defendant’s apartment, it

was also close to another apartment and a storage area.

¶ 121 The remaining three factors all weigh heavily against the conclusion that the

common landing belonged to the apartment’s curtilage. The area was not included

within an enclosure that excluded others—any of the tenants of the building, the

landlord, their invitees and the officers in this case could have accessed the landing

and defendant could not exclude them. See People v. Lyles, 332 Ill. App. 3d 1, 7

(2002) (no reasonable expectation of privacy in apartment building common area);

State v. Nguyen, 2013 ND 252, 841 N.W.2d 676 (post-Jardines case where court

found that a dog sniff in the common area of a locked apartment building where dog

alerted on the defendant’s apartment door was not a search because defendant did

not have a reasonable expectation of privacy in the area and it was therefore not

curtilage); United States v. Scott, 610 F.3d 1009, 1016 (8th Cir. 2010) (dog sniff of

exterior doorframe of defendant’s apartment that occurred in common hallway did

not constitute a search because the sniff occurred in the common area where others

could be lawfully present); cf. United States v. Burston, 806 F.3d 1123 (8th Cir.

2015) (post-Jardines case that accepted the holding of Scott, distinguishing it from

the facts before it, which the Burston court characterized as involving the search of

an uncommon area six to ten inches from Burston’s window, which was prevented

from being a common area by a strategically placed bush and grill). In the present

case, there is no evidence that defendant put the landing to any use other than

accessing her apartment. Nor was there any evidence that her lease permitted any

other use or that any other use was feasible in light of the landing’s size and design.

Under these circumstances, the landing was not curtilage under the factors

enunciated in Dunn.

¶ 122 Justice Kilbride concludes his analysis on whether the landing should be treated

as curtilage by making the puzzling claim that “[e]ven the Jardines dissent made

observations that support our conclusion that the police conduct in this case

violated the fourth amendment.” Supra ¶ 42. Justice Kilbride’s claim is a real

head-scratcher because the issue in Jardines was whether the front porch of

defendant’s home was curtilage, not whether the common area of an apartment

building can be curtilage. Justice Kilbride’s claim becomes all the more startling,

however, given that the dissenters in Jardines actually told us how they felt about a

dog sniff of a common area of an apartment building:

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“The concurrence suggests that a Kyllo-based decision would be ‘much

like’ the actual decision of the Court, but that is simply not so. The holding of

the Court is based on what the Court sees as a ‘ “physical intrusion of a

constitutionally protected area.” ’ [Citation.] As a result, it does not apply when

a dog alerts *** in the corridor of a building to which the dog and handler have

been lawfully admitted.

The concurrences’s Kyllo-based approach would have a much wider reach.

When the police used the thermal imaging device in Kyllo, they were on a

public street, 533 U. S., at 29, and ‘committed no trespass.’ Ante, at 3.

Therefore, if a dog’s nose is just like a thermal imaging device for Fourth

Amendment purposes, a search would occur if a dog alerted while on a public

sidewalk or in the corridor of an apartment building. And the same would be

true if the dog was trained to sniff, not for marijuana, but for more dangerous

quarry, such as explosives or for a violent fugitive or kidnaped child. I see no

ground for hampering legitimate law enforcement in this way.

***

The conduct of the police officer in this case did not constitute a trespass

and did not violate respondent’s reasonable expectations of privacy. I would

hold that this conduct was not a search ***.” (Emphases added.) Jardines, 569

U.S. at ___, 133 S. Ct. at 1426 (Alito, J., dissenting, joined by Roberts, C.J.,

Kennedy and Breyer, JJ.).

¶ 123 The special concurrence of Chief Justice Garman in this case also finds the

common area of the landing and the exterior of defendant’s doorway to be

curtilage. Supra ¶ 99. Chief Justice Garman sets forth two fourth amendment

purposes at play in considering whether an area should be considered curtilage and

urges that “[t]he protection claimed by defendant in this case fits neatly within the

home-shielding curtilage cases.” Supra ¶ 93. But in the end it is clear that her

determination that the common area at issue in this case should be treated as the

curtilage of the apartment rests upon an egalitarian concern for creating privacy

rights for apartment dwellers on par with the occupants of single-family homes

regardless of the significant legal differences between the two situations. See supra

¶ 96 (“Were this court to hold that an apartment uniformly lacks fourth amendment

curtilage, we would additionally hold that those who live in apartments have less

property-based fourth amendment protection within their homes than those who

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live in detached housing.”). The problem with the special concurrence’s approach

is that apartment doors that open to common areas of a multiunit apartment

building have less home-shielding protection by nature than single-family home

properties do. Odors, sounds and activities may be detected from the vantage point

of the common areas of the apartment building where others may not be excluded. 4

I would submit that the reaction to this reality should not lie in morphing the

concept of curtilage beyond its rightful parameters.

¶ 124 III. No Reasonable Expectation of Privacy

¶ 125 Having concluded that the common stairway and landing of the apartment

complex is not the curtilage of defendant’s apartment, I would also find that

defendant did not have a reasonable expectation of privacy in the odors that waft

from inside her apartment to places that others may lawfully stand. The

overwhelming weight of federal authority is in agreement with that proposition.

See United States v. Scott, 610 F.3d 1009, 1015-16 (8th Cir. 2010) (dog sniff of

exterior door frame of defendant’s apartment door occurring in common hallway

did not violate defendant’s reasonable expectation of privacy); United States v.

Nohara, 3 F.3d 1239 (9th Cir. 1993) (holding that defendant had no reasonable

expectation of privacy in the common area of a secured apartment building);

United States v. Acosta, 965 F.2d 1248 (3d Cir. 1992) (same result with unsecured

building); United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991) (same);

United States v. Holland, 755 F.2d 253 (2d Cir. 1985) (same result with secured

building); United States v. Eisler, 567 F.2d 814 (8th Cir. 1977) (same); United

States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976) (holding that defendant had no

reasonable expectation of privacy in parking garage of condominium). The Sixth

Circuit appears to be the only circuit that recognizes a reasonable expectation of

4

Chief Justice Garman leaves it somewhat ambiguous as to the extent of the area she would find

to be constitutionally protected. At one point, she states that “where officers carry out a canine sniff

of the door to an apartment or other dwelling unit over which the defendant has exclusive control, a

search is being carried out.” Supra ¶ 97. Later, she states it is the “front door and area immediately

surrounding it” (id.), and the “front door and landing” (id. ¶ 99) that are constitutionally protected. I

simply disagree that the landing or any of the area outside of defendant’s door was under

defendant’s exclusive control in this case. Moreover, there is no evidence in the record that Hunter

was actually allowed to touch defendant’s door with his nose. Additionally, it may be possible that a

trained officer can tell if the dog was alerting to the presence of drugs before its nose hits the door or

it begins to scratch it. At any rate, I would not find the exterior of the apartment door to be curtilage.

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privacy in the hallway or common areas of a locked apartment building. See United

States v. Carriger, 541 F.2d 545 (6th Cir. 1976). The majority position among the

states that have considered the question also appears to be solidly in favor of

finding that there is no reasonable expectation of privacy in the common areas of a

locked apartment building. State v. Nguyen, 2013 ND 252, ¶ 9, 841 N.W.2d 676

(collecting cases); State v. Davis, 732 N.W.2d 173 (Minn. 2007).

¶ 126 The rationale for holding that there is no legitimate expectation of privacy that

protects a renter from a dog sniff in the common area of an apartment building

outside the renter’s door has been set forth in numerous cases. The rejected

arguments of the defendants in those cases were along the lines that the defendants’

privacy interest inside their residences was intruded upon because police conducted

dog sniffs to detect something therein. The defendants usually relied upon Kyllo v.

United States, 533 U.S. 27 (2001), where the Supreme Court found that law

enforcement’s use of a thermal imaging device outside the home, but directed into

the home, was a search for fourth amendment purposes.

¶ 127 Courts have responded by noting that no legitimate expectation of privacy is

violated by police conduct that can reveal only information about contraband and

nothing about arguably private rights. United States v. Jacobsen, 466 U.S. 109,

123-24 (1984); United States v. Place, 462 U.S. 696, 707 (1983) (canine inspection

of luggage at airport). Drug-sniffing dogs, unlike thermal imaging devices, are not

“capable of detecting lawful activity” such as the “intimate details” in the home.

Illinois v. Caballes, 543 U.S. 405, 409-10 (2005) (canine inspection of an

automobile during a traffic stop) (clarifying Kyllo). The resident’s interest in the

inside of his dwelling was intruded in Kyllo because the device used was capable of

detecting lawful as well as unlawful activity going on inside the residence. Here,

defendant does not make any claim that the dog used outside her apartment was

capable of detecting anything beyond the odor of illegal drugs emanating from

inside the apartment to the outside. A dog sniff does not expose noncontraband that

would otherwise remain hidden from public view, but “discloses only the presence

or absence of narcotics.” Place, 462 U.S. at 707. A dog sniff is considered sui

generis because there is “no other investigative procedure that is so limited both in

the manner in which the information is obtained and in the content of the

information revealed by the procedure.” Id. Kyllo is therefore distinguishable, and

it can be easily concluded that the likelihood that the use of a drug-sniffing dog in

the common area of an apartment building will compromise any interest in privacy

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is too remote to characterize the use of the dog as a violation of a reasonable

expectation of privacy. See Caballes, 543 U.S. at 409-10.

¶ 128 I would also note that the purpose of an apartment building having locking

exterior doors leading into the common areas is not to provide privacy, but to

provide safety for the tenants. Eisler, 567 F.2d at 816. In other words, locked

common doors are meant to keep the crime out, not the police out. If there were no

murders, rapes or robberies in the world, the current fashion of automatic-locking

apartment doors would likely disappear. “An expectation of privacy necessarily

implies an expectation that one will be free of any intrusion, not merely

unwarranted intrusions.” Id. Here, it is clear that others—including the landlord,

other tenants and their invitees—had the right to use the common stairwell,

including the third-floor landing outside defendant’s apartment door. Accordingly,

the officer’s entry into that area with Hunter did not violate any reasonable

expectation of privacy and was not a search.

¶ 129 Finally, I address the special concurrence’s statement “that another resident

may grant police entry to the common areas of the apartment building, but nothing

indicates defendant’s fellow residents may give the police license to carry out a dog

sniff” near defendant’s door. Supra ¶ 97. As I have already explained, the dog sniff

occurred in the common area of the third-floor landing that cannot be considered

curtilage and there was no reasonable expectation of privacy, and therefore no

license was required. I might add, however, that apartment dwellers living in close

quarters with drug dealers or manufacturers would no doubt prefer to see an

occasional police dog in their common hallway. The same would be even more true

“for more dangerous quarry, such as explosives or for a violent fugitive or kidnaped

child.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1426 (Alito, J., dissenting, joined by

Roberts, C.J., and Kennedy and Breyer, JJ.). The majority is wrongly foreclosing

this useful and legitimate law enforcement tool.

¶ 130 IV. Conclusion

¶ 131 I would hold that the use of the drug-sniffing dog in the common area outside of

defendant’s apartment door did not constitute a trespass onto the curtilage and was

not a violation of defendant’s reasonable expectation of privacy. The police

therefore did not conduct an illegal search, and there was no violation of the fourth

amendment. Accordingly, I dissent.

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¶ 132 JUSTICE KARMEIER joins in this dissent.

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