The opinion
2018 IL 122484
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122484)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DERRICK BONILLA, Appellee.
Opinion filed October 18, 2018.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Garman, Burke, Theis, and Neville concurred in the judgment and
opinion.
Chief Justice Karmeier dissented, with opinion.
Justice Thomas dissented, with opinion, joined by Chief Justice Karmeier.
OPINION
¶1 This appeal presents a search and seizure issue involving application of this
court’s recent opinion in People v. Burns, 2016 IL 118973. Burns, relying on
Florida v. Jardines, 569 U.S. 1 (2013), held that the warrantless use of a
drug-detection dog at a defendant’s apartment door, located within a locked
apartment building, violated a defendant’s rights under the fourth amendment to
the United States Constitution. U.S. Const., amend. IV. In this case, the circuit
court of Rock Island County determined that police violated defendant’s fourth
amendment rights by conducting a dog sniff of the threshold of defendant’s
apartment, located on the third floor of an unlocked apartment building. The
appellate court affirmed. 2017 IL App (3d) 160457. We now affirm.
¶2 BACKGROUND
¶3 The facts of this case were stipulated to by the parties. 1 Defendant, Derrick
Bonilla, lived in an apartment at Pheasant Ridge Apartment Complex in Moline,
Illinois. The East Moline Police Department received a tip that defendant was
selling drugs from his apartment. Acting on that tip, on March 19, 2015, officers
brought a trained drug-detection dog to defendant’s apartment building. The
exterior doors to the apartment building were not locked. The three-floor apartment
building contained four apartments on each floor. Once inside the building, Moline
canine officer Genisio 2 walked his drug-detection dog through the second-floor
common area. The dog showed no interest in the second-floor common area and
did not alert on any of the apartment thresholds. Officer Genisio then walked his
dog through the third-floor common area. The dog showed no interest in units 301,
302, or 303. As the dog came to defendant’s apartment, unit 304, however, it
moved back and forth in the doorway, sniffed at the bottom of the door, and
signaled a positive alert for the presence of narcotics. Officers obtained a search
warrant for defendant’s apartment based on the drug-detection dog’s alert. Officers
searched defendant’s apartment and found cannabis. Defendant was later arrested
1
We note that the supplemental certification of record contains an “Agreed Statement of Facts”
indicating “[t]he search warrant and affidavit filed in [this] case *** is the same search warrant and
affidavit that was the subject of the defendant’s motion to suppress evidence. It was the same search
warrant and affidavit that was viewed by the trial judge in reaching his conclusion with respect to
the motion to suppress.” Unfortunately, neither the common-law record nor the supplemental record
contains a copy of the search warrant and affidavit. Because the trial court’s factual findings are not
contested by the parties, we have relied on the report of proceedings, the defendant’s motion to
quash warrant and suppress evidence, and the parties’ briefs in setting forth the relevant facts of this
case.
2
The record on appeal does not indicate Officer Genisio’s first name.
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and charged with unlawful possession of cannabis with intent to deliver (720 ILCS
550/5(c) (West 2014)).
¶4 In June 2015, defendant filed a motion to suppress. A hearing was held on that
motion in August 2016. The parties stipulated to the facts, and no additional
testimony or evidence was presented. At the conclusion of the hearing, the trial
court granted defendant’s motion to suppress, stating:
“But I think whether you are doing it as a privacy interest under [Kyllo v.
United States, 533 U.S. 27 (2001),] or a curtilage property interest under
[Jardines, 569 U.S. 1], I think it would just be unfair to say you can’t come up
on a person who lives in a single family residence and sniff his door but you can
go into someone’s hallway and sniff their door if they happen to live in an
apartment. That’s a distinction with an unfair difference. So I’m granting the
motion.”
¶5 After the State’s oral motion to reconsider was denied, the State appealed. The
State did not file a separate certificate of impairment but did set forth in its notice of
appeal that the granting of defendant’s motion to suppress had the substantive
effect of dismissing the charges.
¶6 The appellate court affirmed, holding that the common area just outside the
door of an apartment constituted curtilage under Jardines and Burns. 2017 IL App
(3d) 160457, ¶ 18. The appellate court determined that the State acquired the
evidence of drugs by intruding into a constitutionally protected area. 2017 IL App
(3d) 160457, ¶ 21. The appellate court also rejected the State’s argument that the
good faith exception applies to prevent the evidence from being suppressed. 2017
IL App (3d) 160457, ¶ 24. Justice Wright dissented, arguing that this court had
emphasized that police entered a locked apartment complex in Burns and that she
would hold the hallway in this unsecured apartment building was not curtilage.
2017 IL App (3d) 160457, ¶¶ 28-40 (Wright, J., dissenting). We allowed the State’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).
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¶7 ANALYSIS
¶8 The State appeals from the judgment of the appellate court affirming the trial
court’s order granting defendant’s motion to suppress. On appeal, we give great
deference to a trial court’s findings of fact when ruling on a motion to suppress.
People v. Cregan, 2014 IL 113600, ¶ 22. We will reverse the trial court’s findings
of fact only if they are against the manifest weight of the evidence. Cregan, 2014 IL
113600, ¶ 22. The trial court’s legal ruling on whether the evidence should be
suppressed is reviewed de novo. People v. Bridgewater, 235 Ill. 2d 85, 92-93
(2009).
¶9 Here, the parties stipulated to the facts. The record on appeal does not contain
the search warrant and affidavit relied on by the trial court in ruling on defendant’s
motion to suppress. The State, as the appellant, has the burden of presenting a
record sufficient to support its claim of error, and any insufficiencies must be
resolved against it. People v. Hunt, 234 Ill. 2d 49, 58 (2009). Obviously, our legal
analysis on a motion to suppress is heavily dependent on the specific facts of each
case, and we admonish the State for not providing this court with a complete record
in this appeal. Here, there was no testimony at the hearing on defendant’s motion to
suppress. The only evidence to support issuance of the search warrant was the
search warrant itself and the affidavit. It is inconceivable that the State would
expect this court to review the propriety of the trial court’s ruling on defendant’s
motion to suppress evidence without providing a copy of the documents that were
considered by the trial court in making its ruling. Accordingly, any doubts that may
arise from the incompleteness of the record will be resolved against the State, as the
appellant. Fouch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).
¶ 10 The question of law at issue in this appeal is whether the warrantless use of a
drug-detection dog at the threshold of an apartment door, located on the third floor
of an unlocked apartment building containing four apartments on each floor,
violated defendant’s fourth amendment rights. We review this question of law
de novo. People v. Caballes, 221 Ill. 2d 282, 289 (2006).
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¶ 11 I. Whether Defendant’s Fourth Amendment Rights Were Violated
¶ 12 The State argues that use of the drug-detection dog did not violate defendant’s
fourth amendment rights because the common-area hallway in front of defendant’s
apartment door did not constitute curtilage. Defendant counters that use of the
drug-detection dog at the threshold of his apartment door violated the fourth
amendment to the United States Constitution (U.S. Const., amend. IV). According
to defendant, “a citizen’s home is first among equals in Fourth Amendment
jurisprudence, and the threshold is part of the home as a matter of law.”
¶ 13 The fourth amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const., amend. IV.
¶ 14 The parties disagree whether this court’s recent decision in Burns and the
United States Supreme Court’s decision in Jardines control. We begin by
reviewing the Supreme Court’s decision in Jardines. In Jardines, police received
an “unverified tip” that marijuana was being grown in the defendant’s home.
Jardines, 569 U.S. at 3. Police subsequently went to defendant’s home with a
drug-detection dog and approached the front porch. After sniffing the base of the
front door, the dog gave a positive alert for narcotics. Police applied for and
received a warrant to search defendant’s residence based on the dog sniff. A search
of the residence resulted in the discovery of marijuana plants. Jardines, 569 U.S. at
3-4.
¶ 15 The Supreme Court limited its review “to the question of whether the officers’
behavior was a search within the meaning of the Fourth Amendment.” Jardines,
569 U.S. at 5. The Supreme Court held that a warrantless “dog sniff” of an
individual’s front porch was a search for purposes of the fourth amendment and
suppressed the recovered evidence. The Supreme Court stated that the fourth
amendment establishes
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“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 5 (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)).
¶ 16 The Court in Jardines recognized that its decision in Katz v. United States, 389
U.S. 347 (1967), holding that property rights are not the sole measure of the fourth
amendment’s protections, may add to this baseline but does not subtract anything
from the fourth amendment’s protections “ ‘when the Government does engage in
[a] physical intrusion of a constitutionally protected area.’ ” (Emphasis in original.)
Jardines, 569 U.S. at 5 (quoting United States v. Knotts, 460 U.S. 276, 286 (1983)
(Brennan, J., concurring in the judgment, joined by Marshall, J.)). The Supreme
Court emphasized that the principle in such a case is straightforward:
“The officers were gathering information in an area belonging to Jardines and
immediately surrounding his house—in the curtilage of the house, which we
have held enjoys protection as part of the home itself. And they gathered that
information by physically entering and occupying the area to engage in conduct
not explicitly or implicitly permitted by the homeowner.” Jardines, 569 U.S. at
5-6.
¶ 17 The Supreme Court first considered whether police intruded upon a
constitutionally protected area. “The Fourth Amendment does not *** prevent all
investigations conducted on private property ***.” Jardines, 569 U.S. at 6.
However, the Court expressly stated:
“But when it comes to the Fourth Amendment, the home is first among equals.
At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his
own home and there be free from unreasonable governmental intrusion.’ ”
Jardines, 569 U.S. at 6 (quoting Silverman v. United States, 365 U.S. 505, 511
(1961)).
¶ 18 The Court specifically regarded “the area ‘immediately surrounding and
associated with the home’—what our cases call the curtilage” as “ ‘part of the home
itself for Fourth Amendment purposes.’ ” Jardines, 569 U.S. at 6 (quoting Oliver v.
United States, 466 U.S. 170, 180 (1984)). The Court reasoned that “[t]his area
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around the home is ‘intimately linked to the home, both physically and
psychologically,’ and is where ‘privacy expectations are most heightened.’ ”
Jardines, 569 U.S. at 7 (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)).
The Court found “no doubt” that the police officers entered the curtilage of
Jardines’s home as “[t]he front porch is the classic exemplar of an area adjacent to
the home and ‘to which the activity of home life extends.’ ” Jardines, 569 U.S. at 7
(quoting Oliver, 466 U.S. at 182 n.12).
¶ 19 After determining that police officers intruded upon a constitutionally protected
area, the Supreme Court then considered whether the police conduct in entering this
constitutionally protected area with a drug-detection dog was “accomplished
through an unlicensed physical intrusion.” Jardines, 569 U.S. at 7. The Court
recognized that law enforcement officers need not “ ‘shield their eyes’ when
passing by the home ‘on public thoroughfares,’ ” but an officer’s ability to gather
information is “sharply circumscribed” after stepping off the public thoroughfare.
Jardines, 569 U.S. at 7 (quoting Ciraolo, 476 U.S. at 213). The Court also
recognized an implicit license for individuals, including police, “to approach the
home by the front path, knock promptly, wait briefly to be received, and then
(absent invitation to linger longer) leave.” Jardines, 569 U.S. at 8.
¶ 20 “Thus, a police officer not armed with a warrant may approach a home and
knock, precisely because that is ‘no more than any private citizen might do.’ ”
Jardines, 569 U.S. at 8 (quoting Kentucky v. King, 563 U.S. 452, 469 (2011). There
is no customary invitation, however, for police to introduce “a trained police dog to
explore the area around the home in hopes of discovering incriminating evidence.”
Jardines, 569 U.S. at 9.
¶ 21 The Court noted that it was unnecessary to decide whether the officers’
investigation violated Jardines’s reasonable expectation of privacy under Katz. The
Court explained:
“The Katz reasonable-expectations test ‘has been added to, not substituted for,’
the traditional property-based understanding of the Fourth Amendment, and so
is unnecessary to consider when the government gains evidence by physically
intruding on constitutionally protected areas.” (Emphases in original.)
Jardines, 569 U.S. at 11 (quoting Jones, 565 U.S. at 409).
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Nor did the Court find it necessary to consider whether Kyllo, 533 U.S. 27, applied
because “when the government uses a physical intrusion to explore details of the
home (including its curtilage), the antiquity of the tools that they bring along is
irrelevant.” Jardines, 569 U.S. at 11. The Supreme Court concluded that “[t]he
government’s use of trained police dogs to investigate the home and its immediate
surroundings is a ‘search’ within the meaning of the Fourth Amendment.”
Jardines, 569 U.S. at 11-12.
¶ 22 This court later applied the holding of Jardines in the context of an apartment
building in Burns, 2016 IL 118973. In Burns, we held that the warrantless use of a
drug-detection dog at a defendant’s apartment door, located within a locked
apartment building in the middle of the night, violated a defendant’s rights under
the fourth amendment to the United States Constitution. Burns, 2016 IL 118973,
¶ 81. In reaching that conclusion, we emphasized that the apartment building where
the defendant lived was locked and the common areas of the building were not open
to the general public. Burns, 2016 IL 118973, ¶ 41.
¶ 23 The State argues that this case is distinguishable from Burns because, here, the
officers conducted a dog sniff in the unlocked common-area hallway outside of
defendant’s apartment door and the landing was not part of the defendant’s
curtilage under the “property-based” analysis announced in Jardines. According to
the State, under Burns, an unlocked apartment common area is not curtilage.
Defendant counters that under Burns and Jardines, the threshold of defendant’s
apartment is constitutionally protected curtilage.
¶ 24 Here, if the area at the threshold to the door of defendant’s apartment falls
within the curtilage of the home, then the officer’s act of approaching defendant’s
apartment door to have the narcotics-detection dog sniff the threshold of the
apartment would constitute an unlicensed physical intrusion on a constitutionally
protected area. Accordingly, this court must determine whether the threshold of the
door to defendant’s apartment falls within the curtilage of the home.
¶ 25 The facts of this case are nearly identical to those in Burns, other than the
unlocked status of the apartment building. Nevertheless, we conclude that this
distinction does not create a difference. The common-area hallway immediately
outside of defendant’s apartment door is curtilage. See Burns, 2016 IL 118973,
¶ 97 (Garman, J., specially concurring) (“The fact that defendant lived within a
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locked apartment building is helpful to her argument that her front door and landing
were curtilage, but not dispositive.”). Moreover, the dog sniff of the threshold of
defendant’s apartment is similar to the dog sniff of the door on the front porch in
Jardines. See Burns, 2016 IL 118973, ¶¶ 96-97 (Garman, J., specially concurring)
(“In every relevant sense, defendant’s front door and landing appear indistinct from
Jardines’s front door and porch.”).
¶ 26 As the appellate court acknowledged in this case, “the fourth amendment does
not differentiate as to type of home involved.” 2017 IL App (3d) 160457, ¶ 18. We
agree with the trial court that “it would just be unfair to say you can’t come up on a
person who lives in a single family residence and sniff his door but you can go into
someone’s hallway and sniff their door if they happen to live in an apartment.
That’s a distinction with an unfair difference.” See also Bonilla, 2017 IL App (3d)
160457, ¶ 18 (“As the trial court noted, to reach the opposite conclusion would be
to draw a distinction with an unfair difference.”); and United States v. Whitaker,
820 F.3d 849, 854 (7th Cir. 2016) (recognizing that to distinguish Jardines based
upon the differences between the front porch of a single family home and the closed
hallway of an apartment building would be to draw an arbitrary line that would
apportion fourth amendment protections on vagaries of the circumstances that
decide home ownership or rental property),
¶ 27 We conclude that the threshold of the door to defendant’s apartment falls within
the curtilage of the home. “Were this court to hold that an apartment uniformly
lacks fourth amendment curtilage, we would additionally hold that those who live
in apartments have less property-based fourth amendment protection within their
homes than those who live in detached housing.” (Emphasis in original.) Burns,
2016 IL 118973, ¶ 96 (Garman, J., specially concurring). Further, the officer’s
conduct of using a trained narcotics-detection dog at the threshold of defendant’s
apartment for the purpose of detecting contraband inside defendant’s home is the
precise activity the Supreme Court condemned in Jardines. See Jardines, 569 U.S.
at 11-12 (“The government’s use of trained police dogs to investigate the home and
its immediate surroundings is a ‘search’ within the meaning of the Fourth
Amendment.”).
¶ 28 A recent United States Supreme Court decision supports our decision in this
case. The Supreme Court recently reiterated its strong tradition of protection from
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warrantless searches upon a person’s home or its curtilage in Collins v. Virginia,
584 U.S. ___, 138 S. Ct. 1663 (2018):
“[T]he Fourth Amendment’s protection of curtilage has long been black letter
law. ‘[W]hen it comes to the Fourth amendment, the home is first among
equals.’ Florida v. Jardines, 569 U. S. 1, 6 (2013). ‘At the amendment’s “very
core” stands “the right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion.” ’ Ibid. (quoting Silverman v.
United States, 365 U. S. 505, 511 (1961)). To give full practical effect to that
right, the Court considers curtilage—‘the area “immediately surrounding and
associated with the home” ’—to be ‘ “part of the home itself for Fourth
Amendment purposes.” ’ Jardines, 569 U. S., at 6 (quoting Oliver v. United
States, 466 U. S. 170, 180 (1984)). ‘The protection afforded the curtilage is
essentially a protection of families and personal privacy in an area intimately
linked to the home, both physically and psychologically, where privacy
expectations are most heightened.’ California v. Ciraolo, 476 U.S. 207,
212-213 (1986).
¶ 29 When a law enforcement officer physically intrudes on the curtilage to gather
evidence, a search within the meaning of the Fourth Amendment has occurred.
Jardines, 569 U. S., at 11. Such conduct thus is presumptively unreasonable absent
a warrant.” Collins, 584 U.S. at ___, 138 S. Ct. at 1670.
¶ 30 In Collins, an officer walked up a driveway from the road, past the front lawn
and the front perimeter of a house, and into a partially enclosed portion of the
driveway abutting the house to get to the covered motorcycle he wanted to search.
In deciding whether the part of the driveway where the defendant’s motorcycle was
parked and subsequently searched is curtilage, the Supreme Court indicated that the
concept defining curtilage is “ ‘ “easily understood from our daily experience.” ’ ”
Collins, 584 U.S. at ___, 138 S. Ct. at 1671 (quoting Jardines, 569 U.S. at 7,
quoting Oliver, 466 U.S. at 182 n.12). The Supreme Court determined that the area
was curtilage, reasoning:
“Just like the front porch, side garden, or area ‘outside the front window,’
Jardines, 569 U. S., at 6, the driveway enclosure where [the officer] searched
the motorcycle constitutes ‘an area adjacent to the home and “to which the
activity of the home life extends,” ’ and so is properly considered curtilage. Id.,
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at 7 (quoting Oliver, 466 U. S., at 182, n. 12.)” Collins, 584 U.S. at ___, 138 S.
Ct. at 1671.
Accordingly, the Supreme Court concluded that by physically intruding on the
curtilage of the defendant’s home to search the motorcycle, the police invaded the
defendant’s fourth amendment interest in the item searched and also invaded his
fourth amendment interest in the curtilage of his home. Collins, 584 U.S. at ___,
138 S. Ct. at 1671.
¶ 31 The Supreme Court then declined to extend the automobile exception to permit
a warrantless intrusion on a home or its curtilage. Collins, 584 U.S. at ___, 138 S.
Ct. at 1675. In doing so, the Supreme Court specifically refused to create any
exception to the general rule that curtilage receives fourth amendment protection.
Collins, 584 U.S. at ___, 138 S. Ct. at 1675. The Court recognized that exceptions
to the general rule that result in certain types of curtilage receiving fourth
amendment protection for some purposes but not for others would likely create
confusion. Collins, 584 U.S. at ___, 138 S. Ct. at 1675. The Court thus rejected the
State’s suggestion that it adopt a more limited rule and hold that the automobile
exception does not permit warrantless entry into “ ‘the physical threshold of a
house or a similar fixed, enclosed structure inside the curtilage like a garage.’ ”
Collins, 584 U.S. at ___, 138 S. Ct. at 1674. The Court explained that such a rule
“automatically would grant constitutional rights to those persons with the financial
means to afford residences with garages in which to store their vehicles, but deprive
those persons without such resources of any individualized consideration as to
whether the areas in which they store their vehicles qualify as curtilage.” Collins,
584 U.S. at ___, 138 S. Ct. at 1675.
¶ 32 Applying the relevant legal principles articulated by the Supreme Court in
Jardines and Collins to this case yields the same result. “Just like the front porch,
side garden, or area ‘outside the front window,’ ” the threshold of defendant’s
apartment door constitutes “ ‘an area adjacent to the home and “to which the
activity of home life extends” ’ and so is properly considered curtilage.” Collins,
584 U.S. at ___, 138 S. Ct. at 1671 (quoting Jardines, 569 U.S. at 6-7, quoting
Oliver, 466 U.S. at 182 n.12). Accordingly, we hold that in physically intruding on
the curtilage of defendant’s apartment to conduct a dog sniff of the threshold,
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officers violated defendant’s fourth amendment rights.
¶ 33 II. Whether the Good-Faith Exception to the Exclusionary Rule Applies
¶ 34 Alternatively, the State asserts that, even if the police violated the fourth
amendment in this case, the evidence should not be suppressed because the officers
acted in good-faith reliance on established precedent. The State acknowledges that
this court rejected a similar argument in Burns.
¶ 35 “Generally, courts will not admit evidence obtained in violation of the fourth
amendment.” Burns, 2016 IL 118973, ¶ 47 (citing People v. Sutherland, 223 Ill. 2d
187, 227 (2006)). As this Court recognized in Burns:
“The fruit-of-the-poisonous-tree doctrine is an outgrowth of the exclusionary
rule providing that ‘the fourth amendment violation is deemed the “poisonous
tree,” and any evidence obtained by exploiting that violation is subject to
suppression as the “fruit” of that poisonous tree.’ ” Burns, 2016 IL 118973, ¶ 47
(quoting People v. Henderson, 2013 IL 114040, ¶ 33).
“[T]he ‘prime purpose’ of the exclusionary rule ‘is to deter future unlawful police
conduct and thereby effectuate the guarantee of the Fourth Amendment against
unreasonable searches and seizures.’ ” Illinois v. Krull, 480 U.S. 340, 347 (1987)
(quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). The good-faith
exception to the exclusionary rule is a judicially created rule providing that
evidence obtained in violation of a defendant’s fourth amendment rights will not be
suppressed when “police acted with an ‘ “objectively ‘reasonable good-faith belief’
that their conduct [was] lawful,” ’ or when their conduct involved only simple,
isolated negligence.” People v. LeFlore, 2015 IL 116799, ¶ 24 (quoting United
States v. Katzin, 769 F.3d 163, 171 (2014), quoting Davis v. United States, 564 U.S.
229, 238 (2011), quoting United States v. Leon, 468 U.S. 897, 909 (1984)).
¶ 36 This “good-faith exception” to the exclusionary rule has been codified in
section 114-12(b)(1), (b)(2) of the Code of Criminal Procedure of 1963:
“(1) If a defendant seeks to suppress evidence because of the conduct of a
peace officer in obtaining the evidence, the State may urge that the peace
officer’s conduct was taken in a reasonable and objective good faith belief that
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the conduct was proper and that the evidence discovered should not be
suppressed if otherwise admissible. The court shall not suppress evidence
which is otherwise admissible in a criminal proceeding if the court determines
that the evidence was seized by a peace officer who acted in good faith.
(2) ‘Good faith’ means whenever a peace officer obtains evidence:
(i) pursuant to a search or an arrest warrant obtained from a neutral and
detached judge, which warrant is free from obvious defects other than
non-deliberate errors in preparation and contains no material
misrepresentation by any agent of the State, and the officer reasonably
believed the warrant to be valid; or
(ii) pursuant to a warrantless search incident to an arrest for violation of
a statute or local ordinance which is later declared unconstitutional or
otherwise invalidated.” 725 ILCS 5/114-12(b)(1), (2) (West 2012).
¶ 37 The good-faith exception to the exclusionary rule includes good-faith reliance
upon binding appellate precedent that specifically authorized a particular practice
but was subsequently overruled. Davis, 564 U.S. at 241; People v. LeFlore, 2015 IL
116799, ¶¶ 29-31.
¶ 38 The State argues that the good-faith exception to the exclusionary rule should
apply in this case for the same reasons argued by the State in Burns: (1) the officers
relied on binding United States Supreme Court precedent holding that dog sniffs
are not fourth amendment searches; (2) the officers relied on Illinois precedent
holding that residents have no reasonable expectation of privacy in apartment
building common areas; and (3) the officers relied on federal precedent holding
there was no reasonable expectation of privacy in apartment building common
areas. According to the State, it was objectively reasonable for the officers to rely in
good faith on “binding appellate precedent that the precise location of the K9 sniff
was not constitutionally protected.” According to the State, “that the exterior door
here was unlocked makes all the difference.” We disagree. As we have already
stated, whether the entrance to the common area of the defendant’s apartment was
unlocked, as opposed to being locked, is a distinction without a difference. Supra
¶ 25.
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¶ 39 First, in support of its contrary conclusion, the State cites United States v.
Place, 462 U.S. 696 (1983), City of Indianapolis v. Edmond, 531 U.S. 32 (2000),
and Illinois v. Caballes, 543 U.S. 405 (2005), in arguing that “for thirty years, and
on three separate occasions, the United States Supreme Court has held that a K9
sniff was neither a Fourth Amendment search nor constitutionally relevant.” In
Place, the Supreme Court held that use of a drug-detection dog to sniff luggage at
an airport “did not constitute a ‘search’ within the meaning of the Fourth
Amendment.” Place, 462 U.S. at 707. In Edmond, the Supreme Court held that
there was no fourth amendment search when officers conducted a dog sniff of an
automobile at a highway checkpoint. Edmond, 531 U.S. at 40. In Caballes, the
Supreme Court held that “the use of a well-trained narcotics-detection dog—one
that ‘does not expose noncontraband items that otherwise would remain hidden
from public view’ [citation]—during a lawful traffic stop generally does not
implicate legitimate privacy interests.” Caballes, 543 U.S. at 409 (quoting Place,
462 U.S. at 707).
¶ 40 As this court explained in Burns, “contrary to the State’s argument, United
States Supreme Court precedent has long provided that the home has heightened
expectations of privacy and that at the core of the fourth amendment is ‘the right of
a man to retreat into his own home and there be free from unreasonable
governmental intrusion.’ ” Burns, 2016 IL 118973, ¶ 56 (quoting Silverman, 365
U.S. at 511). None of these Supreme Court cases cited by the State implicate this
core fourth amendment right involving the home and its curtilage. Rather, Place,
City of Indianapolis, and Caballes involved use of dog sniffs in public places.
Here, the police conduct involved the warrantless use of a drug-detection dog at the
threshold of defendant’s home. That conduct is simply not supported by an
objectively reasonable good-faith belief that it was specifically authorized under
any United States Supreme Court precedent.
¶ 41 The State next argues that the good-faith exception to the exclusionary rule
should apply because the officers relied on People v. Smith, 152 Ill. 2d 229 (1992),
holding that residents had no reasonable expectations of privacy in apartment
building common areas. We have already reviewed and discussed Smith in detail
and rejected the State’s argument in Burns. Burns, 2016 IL 118973, ¶ 58.
Nevertheless, the State argues that officers could rely in good faith on Smith,
regarding the lack of privacy interests in unlocked common areas. The State
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contends that the fact that the common area in this case was unlocked meant that it
was a place officers had a legal right to be.
¶ 42 Contrary to the State’s assertion, Smith did not hold that tenants have no
expectation of privacy in common areas of either locked or unlocked apartment
buildings. Rather, as we noted in Burns, “Smith concerned an individual’s
reasonable expectation of privacy in things overheard by the police while standing
in a common area of an unlocked apartment building.” Burns, 2016 IL 118973,
¶ 58. Here, in contrast, conducting a search with a drug-detection dog is much
different from overhearing a private conversation. Consequently, Smith does not
support the State’s position any more in this case than it did in Burns.
¶ 43 The State also argues that officers could rely in good faith on People v.
Carodine, 374 Ill. App. 3d 16 (2007), to believe that the unlocked common area
was not constitutionally protected. We now examine Carodine.
¶ 44 In Carodine, a surveillance officer observed a defendant remove a bag from a
dryer vent protruding from the outside wall of an apartment building, remove an
item from the bag, and hand the item to a person who gave money to the defendant.
Carodine, 374 Ill. App. 3d at 18-19. A few minutes later, the officer recovered a
bag from the vent that contained cocaine and heroin. Carodine, 374 Ill. App. 3d at
19. On appeal, the defendant argued that the trial court erred by denying his motion
to suppress the narcotics retrieved by police from the dryer vent that led from the
inside of his apartment to the exterior wall of the building. Carodine, 374 Ill. App.
3d at 21. The appellate court held that no search occurred because the defendant did
not have an objective expectation of privacy in the vent that led from inside his
apartment to the common-area exterior wall of the apartment building. Carodine,
374 Ill. App. 3d at 24. The court reasoned that “the dryer vent was located in a
common area where other tenants of the building, the landlord, delivery persons,
door-to-door salesmen and other members of the public had access.” Carodine, 374
Ill. App. 3d at 24. We agree with defendant that the facts and holding in Carodine
are insufficiently analogous to offer any value to the analysis of the case at hand.
Most notably, Carodine involved the exterior wall of an apartment building; it did
not involve a drug-dog sniff at the threshold to the door of an apartment.
¶ 45 We also agree with defendant that the Illinois case most on point at the time of
the warrantless search in this case was the Fourth District Appellate Court opinion
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in People v. Burns, 2015 IL App (4th) 140006. The appellate court’s holding in
Burns, later affirmed by this court, was that the warrantless dog sniff of the
common-area landing outside of an apartment door was an illegal search under the
fourth amendment. The only difference between the facts in Burns and the facts
here is that the exterior door to the apartment building in Burns was locked. The
State does not cite any binding appellate decision, state or federal, that was
available at the time of the search, specifically authorizing the warrantless use of a
drug-detection dog at the threshold of an apartment door or any other home.
¶ 46 The State also cites a Seventh Circuit Court of Appeals case as binding
precedent in Illinois absent contrary state authority. See United States v. Brock, 417
F.3d 692 (7th Cir. 2005), abrogation recognized by United States v. Gutierrez, 760
F.3d 750 (7th Cir. 2014). In Brock, officers performed a dog sniff outside the
locked door of the defendant’s bedroom. The Seventh Circuit Court of Appeals
affirmed the denial of the defendant’s motion to suppress. Brock, 417 F.3d at 697.
The court relied on Supreme Court decisions holding that a drug-dog sniff does not
constitute a search for fourth amendment purposes because it reveals only the
presence or absence of narcotics and therefore implicates no legitimate privacy
interest. Brock, 417 F.3d at 695.
¶ 47 There are two problems with the State’s reliance on Brock. First, critical to
Brock’s holding was that the dog sniff in the case was not a fourth amendment
search because police were lawfully present inside the common areas of the
residence with the consent of the defendant’s roommate. Brock, 417 F.3d at 697.
Second, Brock is no longer good law, and its abrogation has been recognized after
the 2013 decision in Jardines. See Gutierrez, 760 F.3d at 755-56 (“Brock is no
longer good law; Jardines expressly held that a drug-dog’s sniff on the curtilage is
a Fourth Amendment search for which a warrant is typically required.”). Jardines
was decided two years before the dog sniff in this case, and Brock had already been
recognized as abrogated. Accordingly, the State’s reliance on Brock is misplaced.
¶ 48 The State also cites federal cases holding that there was no reasonable
expectation of privacy in apartment building common areas. United States v
Correa, 653 F.3d 187 (3d Cir. 2011); United States v. Scott, 610 F.3d 1009 (8th Cir.
2010); United States v. Dillard, 438 F.3d 675 (6th Cir. 2006); United States v.
Miravalles, 280 F.3d 1328 (11th Cir. 2002); United States v. Taylor, 248 F.3d 506
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(6th Cir. 2001); United States v. Nohara, 3 F.3d 1239 (9th Cir. 1993); United States
v. Concepcion, 942 F.2d 1170 (7th Cir. 1991); United States v. Barrios-Moriera,
872 F.2d 12 (2d Cir. 1989), abrogated on other grounds by Horton v. California,
496 U.S. 128, 130 (1990); United States v. Eisler, 567 F.2d 814 (8th Cir. 1977).
The State argues that, given this legal landscape, the officers here would have had
no reason to suspect that their conduct was wrongful under the circumstances. This
court has already rejected the State’s “legal landscape” argument in Burns. Burns,
2016 IL 118973, ¶ 67. Significantly, all of these cases were pre-Jardines, and many
of these cases had already been called into doubt as no longer good law after
Jardines. Indeed, Jardines was decided two years before the dog sniff of
defendant’s threshold in this case.
¶ 49 For these reasons, we hold that the good-faith exception to the exclusionary rule
is not applicable.
¶ 50 CONCLUSION
¶ 51 We hold that the warrantless use of a drug-detection dog at the threshold of
defendant’s apartment door violated his rights under the fourth amendment to the
United States Constitution. U.S. Const., amend. IV. We also conclude that the
good-faith exception to the exclusionary rule does not apply. We affirm the
judgment of the appellate court and affirm the trial court’s judgment granting
defendant’s motion to suppress.
¶ 52 Affirmed.
¶ 53 CHIEF JUSTICE KARMEIER, dissenting:
¶ 54 I join in Justice Thomas’s dissent—as I did in People v. Burns, 2016 IL
118973—and I write separately only to add a few observations of my own and
reiterate some points he made in Burns. 3 Early on, the majority recognizes that “our
legal analysis on a motion to suppress is heavily dependent on the specific facts of
3
See Burns, 2016 IL 118973, ¶¶ 103, 113, 121, 125 (Thomas, J., dissenting, joined by
Karmeier, J.)
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each case” (supra ¶ 9); however, the majority then readily takes statements the
Supreme Court made in the context of true “curtilage” cases and plugs them into an
analysis of a much different property interest, purporting to distinguish this court’s
opinion in People v. Smith, 152 Ill. 2d 229 (1992). In that regard, the majority
employs a suspiciously evolving distinction of Smith, which addressed reasonable
expectations of privacy in similar circumstances but reached a different result.
However, even if we were to assume that Smith is no longer good law after
Jardines—as the majority suggests—it is to me inconceivable that the majority can
say Smith is irrelevant—along with all the other cases cited by Justice Thomas in
Burns—for purposes of applying the good-faith exception to the exclusionary rule.
¶ 55 First, I do not believe that the majority’s analytical overlay of the Supreme
Court’s decision in Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018), adds
anything to the majority’s recycled analysis from Burns. Collins does not advance
the majority’s cause. Though I understand the majority’s desire to impose some
form of residential egalitarianism in this context, precedent simply does not support
it—at least not the Supreme Court’s property-based dispositions in Jardines and
Collins. There are very real differences in the facts, the reasonable expectations of
privacy, and the property interests involved. Collins is still a traditional curtilage
case, like Jardines. In Collins, the police deviated from the public thoroughfare and
went through the close of defendant’s private property and onto his driveway, to
search a motorcycle located in what was characterized as a “driveway enclosure,”
an area that the Supreme Court described as adjacent to the home, “ ‘ “to which the
activity of the home life extends.” ’ ” Collins, 584 U.S. at ___, 138 S. Ct. at 1671
(quoting People v. Jardines, 569 U.S. 1, 7 (2013), quoting Oliver v. United States,
466 U.S. 170, 182 n.12 (1984)).
¶ 56 In reaching its result in this case, the majority alternately claims that “[t]he
common-area hallway immediately outside of defendant’s apartment door is
curtilage” and “the threshold of defendant’s apartment door constitutes ‘ “an area
adjacent to the home and ‘to which the activity of home life extends’ ” and so is
properly considered curtilage.’ ” (Emphasis added.) Supra ¶¶ 25, 32 (quoting
Collins, 584 U.S. at ___, 138 S. Ct. at 1671, quoting Jardines, 569 U.S. at 6-7,
quoting Oliver, 466 U.S. at 182 n.12). The absurdity of the majority’s claim is
highlighted by the dissenting appellate justice in this case:
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“No portion of the third-floor hallway is enclosed. Defendant was not using the
area outside his doorway for any private purpose such as for a sitting or
reception area for himself or his guests. Nothing other than the thickness of
defendant’s locked apartment door separated defendant’s private area from the
publicly-accessible hallway. Defendant did not position any item to cause the
general public to detour around the threshold of his locked door. Lastly, and
importantly, defendant took no steps to protect the exterior of his apartment
door from the view or observations of people lawfully travelling back and forth
throughout the unlocked apartment building.” 2017 IL App (3d) 160457, ¶ 36
(Wright, J., dissenting).
¶ 57 The majority likens the common hallway of this unlocked apartment building to
the private porch of Jardines and the private driveway of Collins, both of which
were within the perimeter, or close, of the residential property those defendants
actually occupied. 4 This defendant had no such interest in the common hallway of
the multistory apartment building in which he was one of many tenants. It was not
his property. He did not own the hallway, or have an exclusive right of control, nor
any semblance of habitation there. Certainly, his family life did not extend there. 5
Would we envision family dinners in the hallway? Gardening? Recreation?
Perhaps drinks with friends? Of course not. What aspects of family life are we
talking about? Clearly, the hallway is not “an area adjacent to the home *** to
which the activity of home life extends.” When we employ the property-based
approach of Jardines and Collins—as opposed to a privacy-based analysis—we
have to live with the strictures of the former, we have to accept the limitations of
the property right at issue.
¶ 58 The hallway is simply a publicly accessible means of ingress or egress for
defendant, all the other residents, and anyone else who cares to come or go through
4
The Supreme Court, in Jardines, made clear that it was intrusion onto Jardines’s property that
formed the basis for the Court’s decision: “[W]e need not decide whether the officers’ investigation
of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth
Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned
what they learned only by physically intruding on Jardines’ property to gather evidence is enough to
establish that a search occurred.” Jardines, 569 U.S. at 11.
5
In short, there was no “ ‘physical intrusion of a constitutionally protected area’ ” as required by
the Supreme Court in Jardines. See Jardines, 569 U.S. at 5 (quoting United States v. Knotts, 460
U.S. 276, 286 (1983) (Brennan, J., concurring in the judgment, joined by Marshall, J.)).
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the building’s unlocked doors. The owner of the building evinced no intent to
prohibit anyone from entering. The exterior doors leading into the apartment
building’s common-area hallways were not locked, and there was no lock,
passcard, entry system, or anything whatsoever on the closed exterior doors of the
apartment building that would prevent any person off the street from entering into
the common-area hallways of the building. Officer Genisio walked through those
publicly accessible, common hallways. He was where he had a right to be. He never
invaded defendant’s living space, nor did he encroach upon property we would
recognize as defendant’s, owned or leased. In short, he did not violate defendant’s
“curtilage,” the dimensions of which the majority would be hard-pressed to fully
define. Is this “threshold-curtilage” a matter of inches in front of defendant’s
apartment door? Is that “an area adjacent to the home *** to which the activity of
home life extends?” If more, how far does it extend? Do other residents traverse
and violate defendant’s curtilage when they pass his apartment door while going
about their daily activities? Does this “curtilage” include the entirety of the
third-floor hallway? Perhaps it encompasses all the hallways of the unlocked
apartment building. Who knows?
¶ 59 If “[t]he common-area hallway immediately outside of [a] defendant’s
apartment door is curtilage,” (emphasis added) as the majority at one point states,
then the officers in Smith were clearly in it when they sought to overhear a
conversation in that defendant’s apartment. However, in that case, this court held
“no fourth amendment ‘search’ can be said to have occurred because defendant did
not have a reasonable expectation of privacy in his conversation.” 6 Smith, 152 Ill.
2d at 245. Among the factors this court found pertinent to its pronouncement on
defendant’s expectations of privacy, the court listed the following: (1) the area
where the officers overheard defendant’s conversation was a common area—and
the court cited authority holding that expectations of privacy are diminished in the
common areas of an apartment building; (2) “the area where the officers were
standing when they overheard the conversation was unlocked”; (3) defendant’s
voice was raised; and (4) “the officers used no artificial means to enhance their
6
The court cited, with implied approval, this court’s decision in People v. Wright, 41 Ill. 2d 170
(1968), where the court upheld admission of evidence developed by means of an officer’s
eavesdropping into a private residence through an open window. The officer watched and listened
through a rear window of an apartment from a CTA right-of-way only one to three feet from the
building.
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ability to hear defendant’s conversation, nor did they enter an area where they had
no legal right to be.” (Emphases added.) Smith, 152 Ill. 2d at 246.
¶ 60 As I read Smith, the fact that the officers were in the common area of an
“unlocked” apartment building mattered. The Burns majority also appeared to
think that was a distinction supporting the decision in that case: “Contrary to the
State’s assertion, Smith did not hold that tenants have no expectation of privacy in
common areas of locked apartment buildings. Rather, Smith concerned an
individual’s reasonable expectation of privacy in things overheard by the police
while standing in a common area of an unlocked apartment building. Consequently,
Smith does not support the State’s position.” (Emphases added.) Burns, 2016 IL
118973, ¶ 58. In its analysis, the Burns majority referred to the “locked” door of the
apartment building multiple times. It was clearly an essential part of the
disposition. Now, the majority’s distinction of Smith appears to be evolving as the
need arises, as can be seen in the majority’s statement in this case: “Contrary to the
State’s assertion, Smith did not hold that tenants have no expectation of privacy in
common areas of either locked or unlocked apartment buildings.” (Emphasis
added.) Supra ¶ 41.
¶ 61 This court’s decision in Smith, considered in conjunction with the principles the
Supreme Court espoused in Illinois v. Caballes, 543 U.S. 405 (2005), would appear
to validate the officer’s activities in this case. In Caballes, the Supreme Court
stated:
“Official conduct that does not ‘compromise any legitimate interest in
privacy’ is not a search subject to the Fourth Amendment. Jacobsen, 466 U. S.,
at 123. We have held that any interest in possessing contraband cannot be
deemed ‘legitimate,’ and thus, governmental conduct that only reveals the
possession of contraband ‘compromises no legitimate privacy interest.’ Ibid.
This is because the expectation ‘that certain facts will not come to the attention
of the authorities’ is not the same as an interest *** in ‘privacy that society is
prepared to consider reasonable.’ Id., at 122 (punctuation omitted). In United
States v. Place, 462 U. S. 696 (1983), we treated a canine sniff by a well-trained
narcotics-detection dog as ‘sui generis’ because it ‘discloses only the presence
or absence of narcotics, a contraband item.’ Id., at 707; [citation].” (Emphasis
in original.) Caballes, 543 U.S. at 408-09.
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While one might argue those statements were intended to apply only to traffic
stops, the Court’s need to distinguish its decision in Kyllo v. United States, 533 U.S.
27 (2001), which addressed, inter alia, the expectations of privacy in a residence,
suggests otherwise. In Kyllo, the Court had held that the use of a thermal-imaging
device to detect the growth of marijuana in a home constituted an unlawful search.
In Caballes, the Court could have distinguished Kyllo, principally upon the
different privacy interests recognized in automobiles and homes—however, that is
not the “critical” distinction the Court cited:
“Critical to that decision was the fact that the device was capable of detecting
lawful activity—in that case, intimate details in a home, such as ‘at what hour
each night the lady of the house takes her daily sauna and bath.’ Id., at 38. The
legitimate expectation that information about perfectly lawful activity will
remain private is categorically distinguishable from respondent’s hopes or
expectations concerning the nondetection of contraband in the trunk of his car.
A dog sniff conducted during a concededly lawful traffic stop that reveals no
information other than the location of a substance that no individual has any
right to possess does not violate the Fourth Amendment.” Caballes, 543 U.S. at
409-10.
The bottom line is this is not a curtilage case. Smith and Caballes provide the
controlling authority.
¶ 62 However, for the sake of argument, let us suppose the officer did unwittingly
violate this newly devised minicurtilage, wherever it might be. What about the
good-faith exception to the exclusionary rule? If the officer did not believe the
common hallway of an unlocked apartment building qualified as the “curtilage” of
a specific apartment, then he would have no reason to believe that the Supreme
Court’s property-based decision in Jardines changed the settled authority of Smith
and a number of federal decisions, which were based upon reasonable expectations
of privacy and held that there was no such expectation in the common hallway of an
unlocked apartment building. See Burns, 2016 IL 118973, ¶¶ 103, 113, 121, 125
(Thomas, J., dissenting, joined by Karmeier, J.) Those authorities, considered in
conjunction with Caballes, establish that defendant had no reasonable expectation
of privacy in the common hallway of an unlocked apartment building and he further
had no expectation of privacy with respect to the contraband in his apartment.
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¶ 63 The appellate court’s decision in Burns (People v. Burns, 2015 IL App (4th)
140006) could not trump this court’s decision in Smith and the United States
Supreme Court’s decision in Caballes. Those cases provided the governing
principles at the time the officer acted. And we should be fair in our appraisal of the
officer’s conduct. As this court recognized in People v. LeFlore, 2015 IL 116799,
¶ 24, “exclusion [of evidence] is invoked only where police conduct is both
‘sufficiently deliberate’ that deterrence is effective and ‘sufficiently culpable’ that
deterrence outweighs the cost of suppression.” 7 Given the prevailing supreme court
authority at the time the officer acted, his conduct does not qualify as “culpable.” In
the end, when the members of this court, and those of the appellate panel, cannot
agree whether this area qualifies for protection as “curtilage” or warrants an
expectation of privacy, can we expect police officers to appreciate such nuanced
distinctions, so that they would recognize that Jardines changed the law in this
context? We should only expect of them “good faith,” not scholarly discernment.
¶ 64 For the foregoing reasons, I respectfully dissent.
¶ 65 JUSTICE THOMAS, dissenting:
¶ 66 The issue in this case is whether the police conducted an illegal search by using
a drug-sniffing dog in the unlocked common-area hallway outside of defendant’s
apartment door. In People v. Burns, 2016 IL 118973, I concluded that the police’s
use of a drug-sniffing dog in the locked common-area hallway outside of the
defendant’s door was perfectly legal and did not violate the fourth amendment
because (1) the concept of curtilage has no application to the common areas of
multiple-unit structures and (2) there is no reasonable expectation of privacy in the
common areas of an apartment building. Id. ¶ 103 (Thomas, J., dissenting, joined
by Karmeier, J.). My reasons for reaching this conclusion are set forth fully in my
Burns dissent, and I need not repeat them here. For present purposes, it is sufficient
to say that, for the very same reasons I concluded that the use of a drug-sniffing dog
in a locked common-area hallway raises no fourth amendment concerns, I likewise
7
Noticeably absent in the majority’s opinion here is the extended discussion of LeFlore that the
majority saw fit to include in Burns. See Burns, 2016 IL 118973, ¶¶ 49-52.
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conclude that the use of a drug-sniffing dog in an unlocked common-area hallway
raises no fourth amendment concerns. Accordingly, I respectfully dissent.
¶ 67 CHIEF JUSTICE KARMEIER joins in this dissent.
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