People v. Manzo

2018 IL 122761

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 122761)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

JORGE MANZO JR., Appellant.

Opinion filed December 28, 2018.

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

Justices Kilbride, Theis, and Neville concurred in the judgment and opinion.

Justice Garman dissented, with opinion, joined by Chief Justice Karmeier and

Justice Burke.

OPINION

¶1 The defendant, Jorge Manzo Jr., was charged with unlawful possession of a

controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(B) (West

2008)) and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a)

(West 2008)) following a search of his residence pursuant to warrant. Prior to trial,

defendant filed a motion to quash the search warrant and suppress evidence on the

ground that there was no probable cause to search his residence. The circuit court of

Will County denied defendant’s motion. Following a jury trial, defendant was

found guilty of unlawful possession of a weapon by a felon but was acquitted of

unlawful possession of a controlled substance with intent to deliver. Defendant was

sentenced to 36 months’ intensive probation.

¶2 On appeal, defendant again argued that the circuit court erred in finding

probable cause to search his residence. The Appellate Court, Third District,

affirmed, with one justice dissenting. 2017 IL App (3d) 150264. This court then

allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,

2017).

¶3 BACKGROUND

¶4 On June 11, 2009, Officer Jeremy Harrison of the Joliet Police Department

filed a sworn complaint for a search warrant to search the person of Ruben Casillas,

as well as a black Ford Explorer and the premises located at 701 West Marion

Street, Joliet, Illinois. The complaint for a search warrant did not target defendant,

but 701 West Marion Street was defendant’s residence. Defendant lived at 701

West Marion Street with Leticia Hernandez, his then girlfriend and later his wife.

Casillas was Hernandez’s cousin. Officer Harrison requested the search warrant for

the purpose of seizing cocaine, United States currency including official advanced

funds, proof of residency, proof of identification, drug records, drug packaging,

drug paraphernalia, and any other evidence of the crimes of unlawful possession of

a controlled substance and unlawful possession of a controlled substance with the

intent to deliver.

¶5 In support of the complaint for a search warrant, Officer Harrison stated that he

had probable cause to believe that the listed items were located upon Casillas or the

property. Officer Harrison explained that he had purchased cocaine from Casillas

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three times over the past 20 days 1 and two of those purchases occurred in the

vicinity of 701 West Marion Street.

¶6 On May 20, 2009, Harrison placed an outgoing telephone call and spoke with

Casillas about purchasing $150 of cocaine. Casillas directed Harrison to meet him

at the Gonzalez Supermarket, at 652 Collins Street, Joliet, Illinois. At the

supermarket, Harrison observed Casillas walking away from a black Ford Explorer.

Casillas motioned for Harrison to come inside the store. Casillas placed a clear

plastic bag containing suspected cocaine onto a store shelf and told Harrison that it

was right there. Harrison retrieved the bag and handed Casillas $150 in United

States currency. Officer Simonich watched Casillas exit the store and reenter the

black Ford Explorer. Harrison conducted a field test on the substance in the plastic

bag, which was positive for the presumptive presence of cocaine. The suspected

cocaine weighed 3.7 grams. Harrison checked the registration on the black Ford

Explorer and determined that it was registered to Leticia Hernandez at 701 West

Marion Street in Joliet.

¶7 On May 28, 2009, Harrison made a series of telephone calls and text messages

to purchase $300 worth of cocaine from Casillas. Casillas directed Harrison to meet

him inside Stang Kelly Liquor Store located at 712 West Jefferson Street in Joliet.

Harrison met Casillas in an aisle inside the liquor store. Casillas pointed toward

some liquor bottles on a store shelf and said, “they are right there.” Harrison

retrieved two clear plastic bags containing suspected cocaine and handed Casillas

$300 in United States currency. A field test was positive for the presumptive

presence of cocaine. The suspected cocaine weighed 7.9 grams.

¶8 On June 8, 2009, Harrison sent a series of text messages to Casillas about

purchasing $150 of cocaine. While Harrison was texting Casillas, Officers

Simonich and Prochaska conducted surveillance on 701 West Marion Street.

Casillas directed Harrison to meet him at Stang Kelly Liquors again. Officer

Simonich observed Casillas exit the residence at 701 West Marion Street on foot.

Officer Prochaska conducted uninterrupted surveillance of Casillas as he walked to

meet Officer Harrison. While Casillas was walking, he directed Officer Harrison to

1

Although the complaint states that Officer Harrison had purchased cocaine from Casillas three

times over 20 days, the dates referenced in the complaint indicate that the purchases occurred over

19 days.

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meet him inside the Martinez grocery store located at 704 West Jefferson Street,

Joliet, rather than at Stang Kelly Liquors. Harrison proceeded to the store and met

Casillas in an aisle. Casillas pointed to a store shelf and said, “it’s right there.”

Harrison retrieved a clear plastic baggie containing suspected cocaine from the

shelf and handed Casillas $150 in United States currency. A field test indicated that

the suspected cocaine, which weighed 3.6 grams, had a positive reaction for the

presumptive presence of cocaine.

¶9 Harrison’s complaint for a search warrant stated that he had positively

identified Casillas from an Illinois Secretary of State driver’s license photograph.

In addition, Harrison stated that law enforcement records showed that Casillas was

an associate of Leticia Hernandez who resided at 701 West Marion Street in Joliet.

¶ 10 The warrant judge issued the warrant the same day the complaint was filed. The

search warrant was executed the next day, June 12, 2009. Officers seized several

items from 701 West Marion Street, including a bag containing 348 grams of

cocaine, a handgun, ammunition, a digital scale, a box of plastic bags, over $9000

in United States currency, and proof of residency for both defendant and Casillas.

The cocaine, the handgun, the ammunition, the digital scale, and the box of plastic

bags were found in a safe inside the master bedroom closet. The cash was found in

the pockets of two jackets in the master bedroom closet. Defendant’s proof of

residency at 701 West Marion Street was found in a bedroom drawer and elsewhere

in the house. None of the paperwork concerning Casillas’s residency indicated that

701 West Marion Street address was Casillas’s address.

¶ 11 Prior to trial, defendant filed a motion to quash arrest and suppress evidence,

arguing that the officers lacked probable cause to search his home. The motion

argued that, prior to the execution of the search warrant, no corroborating

information was sought or found by the responding police officers to verify that

Casillas ever resided at 701 West Marion Street. Further, Officer Harrison ran

Casillas’s driver’s license information, which showed that Casillas was not a legal

resident of 701 West Marion Street, nor did Casillas use that address as his address.

Defendant also argued that, although there were three alleged drug transactions

committed by Casillas, none of the transactions took place at 701 West Marion

Street. Further, although the warrant indicated that the officers saw Casillas walk

out of 701 West Marion Street on one occasion, the officers did not verify whether

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Casillas actually resided there or was just a casual visitor. No information was

provided concerning how long Casillas was at the residence prior to meeting

Officer Harrison.

¶ 12 Defendant contended that Officer Harrison, who supplied the information for

the search warrant, was only aware that Casillas was in possession of contraband on

three separate occasions. No contraband or illegal activity was observed at 701

West Marion Street, indicating that Officer Harrison never corroborated that

Casillas was selling illegal contraband from 701 West Marion Street or that illegal

activity was being conducted at that location. The only activity that responding

officers corroborated was that Casillas was conducting illegal drug activity away

from the residence. Consequently, the four corners of the search warrant

completely lacked sufficient probable cause to conduct the search that led to

defendant’s arrest and to the seizure of certain items of purported evidence. For that

reason, defendant argued that the seizure of property at defendant’s residence

violated defendant’s rights and should be excluded from evidence.

¶ 13 In response, the State noted that defendant’s entire argument rested on the

allegation that Casillas, the subject of the search warrant, was not a resident of 701

West Marion Street and that Harrison should have known that. The State argued

that there is no requirement that the subject of a search warrant reside at the address

to be searched, nor that the suspect have legally changed his address or driver’s

license to include that address. The State contended that there was sufficient

probable cause to obtain a search warrant based on the facts relating to 701 West

Marion Street set forth by Officer Harrison in his complaint. Casillas was driving a

car registered to Leticia Hernandez at 701 West Marion Street at the time Casillas

sold narcotics to Harrison on May 20, 2009. On June 8, 2009, Officer Harrison sent

and received text messages from Casillas about purchasing cocaine, while officers

conducting surveillance observed Casillas exit the residence at 701 West Marion

Street and walk to the location where Casillas exchanged cocaine with Officer

Harrison for United States currency. The officers conducting surveillance never

lost sight of Casillas during his walk. The State argued that, based on all the facts

contained within the four corners of the search warrant and the complaint for a

search warrant, probable cause existed for the search of the residence located at 701

West Marion Street. In the alternative, the State argued that, even if the court

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determined that the warrant was invalid, the evidence should nonetheless be

admitted under the good faith exception to the exclusionary rule.

¶ 14 Multiple hearings were held on defendant’s motion to quash in the trial court.

The trial court initially entered an order finding that defendant met his burden of

showing by a preponderance of the evidence that the affidavit for the warrant was

misleading and was presented with a disregard for its truthfulness and that the

misleading statement was germane to the probable cause finding. Specifically, the

trial court found the following statements misleading: that Casillas had been

positively identified from his Illinois Secretary of State driver’s license and that

“law enforcement records show Ruben J. Casillas as an associate of Leticia

Hernandez who resides at 701 West Marion St., Joliet, Will County, Illinois.” The

trial court believed the preceding statements may have misled the warrant judge

into thinking that Casillas lived at 701 West Marion Street.

¶ 15 At a subsequent hearing, the trial court stated that, since he had found the

magistrate was misled, the State could present case law and evidence concerning

whether the misleading was “advertent or inadvertent.” The State then filed a

motion seeking clarification of the court’s order, arguing that it was unclear

whether the trial court had found on its own that the warrant was misleading and

had ordered a Franks hearing or whether the court instead had ordered a good faith

hearing. 2

¶ 16 Following further hearings, the trial court stated that there would be no Franks

hearing and that defendant had met his burden to show that the warrant misled the

magistrate, so that the burden shifted to the State. The State later provided the court

with an affidavit from the magistrate attesting that he did not interpret the statement

about Casillas and Hernandez to mean that Casillas lived at the residence but rather

understood it to mean that Hernandez lived at the residence and Casillas was her

associate.

2

In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the Court held that where a “defendant

makes a substantial preliminary showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in the warrant affidavit,” and that

statement is necessary to a probable cause finding, a hearing must be held, upon the defendant’s

request, pursuant to the fourth amendment.

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¶ 17 The trial court subsequently issued an order finding that defendant had met his

burden of showing by a preponderance of the evidence that the affidavit for the

warrant was misleading and was presented with a disregard for its truthfulness. The

trial court also held that the misleading statement was germane to the probable

cause finding. The trial court then ordered a hearing with the onus on the State to

determine whether the affiant officer had acted intentionally, with reckless

disregard, or with inadvertence.

¶ 18 The State then filed a motion to reconsider, arguing that the misleading

statement was not material and that the remainder of the warrant established a

sufficient nexus between Casillas and the residence. The trial court subsequently

granted the State’s motion to reconsider, stating that, “taking the misleading

information from the search warrant, the remaining information allowed for a

reasonable inference that there was a fair probability that evidence would be found

at the particular place to be searched.”

¶ 19 The trial court thereafter denied defendant’s first amended motion to

reconsider. At the hearing on defendant’s motion, the trial court clarified that its

original ruling had relied upon the assumption that it was necessary to establish that

the residence was the target’s home. The trial court also stated that, because

Casillas was seen leaving defendant’s house before the third drug buy, it was

reasonable to infer that there was a fair probability that drugs would be found at

defendant’s home. The trial court found that the search warrant established a

reasonable likelihood that contraband would be found in defendant’s home.

¶ 20 Following a jury trial, defendant was found guilty of unlawful possession of a

weapon by a felon but was found not guilty of unlawful possession of a controlled

substance with intent to deliver.

¶ 21 The appellate court, with one justice dissenting, affirmed. 2017 IL App (3d)

150264. As in the trial court, defendant argued on appeal that the complaint for a

search warrant did not establish probable cause because it failed to show a nexus

between Casillas’s illegal activities and defendant’s residence. In affirming the trial

court, the appellate court majority noted that if there is no direct information to

establish a nexus between the criminal offense, the items to be seized, and the place

to be searched, the court may draw reasonable inferences to create the nexus. Id.

¶ 17. The majority found the information in the affidavit sufficiently connected

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Casillas’s drug activity to defendant’s residence where it showed that the officers

observed Casillas leave defendant’s home while communicating with Harrison to

set up an imminent drug transaction and also observed Casillas walk from the

residence to the location of the drug transaction. Id. ¶ 18. During a different

transaction, Casillas was seen using a black Ford Explorer registered to defendant’s

residence. Id. Although the affidavit lacked any information that showed Casillas

resided at the residence, the majority stated that such information was not

necessary. Id.

¶ 22 The dissenting justice disagreed that the warrant judge had a substantial basis

for finding probable cause to believe that Casillas’s illegal activities would be

found in defendant’s residence. The only two allegations in the complaint for a

search warrant that had any reference to the residence in question were that Casillas

used Leticia Hernandez’s vehicle to arrive at one of the transactions and that

Casillas was seen leaving the residence prior to one of the three transactions. Id.

¶ 28 (O’Brien, J., dissenting). According to the dissent, noticeably absent from the

complaint were any allegations that Casillas lived in the residence, stored narcotics

in the residence, or conducted any drug transactions inside the residence. Id. The

dissent stated that, at best, the complaint established that Casillas was an

acquaintance of the owners of the residence but did not establish a nexus to believe

that evidence of Casillas’s illegal activities would be found in the residence. Id. The

dissent therefore would find that the complaint for the search warrant failed to

provide the warrant judge with a substantial basis to find probable cause to search

defendant’s residence. Id.

¶ 23 ANALYSIS

¶ 24 In this court, defendant again argues that Officer Harrison’s complaint for a

search warrant failed to establish probable cause to search defendant’s home.

Defendant maintains that the totality of circumstances did not establish a fair

probability that evidence of Casillas’s drug dealing would be found in defendant’s

home. Therefore, the trial court erred in denying defendant’s motion to quash arrest

and suppress evidence.

¶ 25 A circuit court’s ruling on a motion to suppress presents questions of both fact

and law. People v. McCarty, 223 Ill. 2d 109, 148 (2006). A circuit court’s finding of

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fact is given deference when ruling on a motion to suppress and will be reversed

only when those findings of fact are against the manifest weight of the evidence.

People v. Burns, 2016 IL 118973, ¶ 15. If the reviewing court accepts the trial

court’s factual findings, it conducts a de novo review of whether suppression was

appropriate under those facts. People v. Lampitok, 207 Ill. 2d 231, 240 (2003).

¶ 26 The fourth amendment to the United States Constitution, made applicable to

state officials through the fourteenth 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.

See also Elkins v. United States, 364 U.S. 206, 213 (1960) (fourth amendment

prohibition is applicable to state officials through the fourteenth amendment).

¶ 27 Similarly, the search and seizure clause of 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.

¶ 28 With a narrow exception not relevant in this case (see People v. Krueger, 175

Ill. 2d 60 (1996)), this court has held that the search and seizure provision in article

I, section 6, of the Illinois Constitution is to be interpreted in lockstep with the

fourth amendment. See People v. Tisler, 103 Ill. 2d 226, 245 (1984)). The fourth

amendment and the Illinois search and seizure clause, then, both set forth two

underlying requirements: that searches and seizures must be reasonable and that

probable cause must support search warrants. People v. Carlson, 185 Ill. 2d 546,

553 (1999).

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¶ 29 As noted, defendant argues that there was insufficient probable cause to support

the search of his home in this case. Pursuant to federal and state warrant

requirements, a detached judicial officer must resolve the question of whether

probable cause exists to justify issuing a warrant. Tisler, 103 Ill. 2d at 236. Whether

probable cause exists in a particular case turns on the “ ‘totality of the

circumstances and facts known to the officers and court when the warrant is applied

for.’ ” Id. (quoting People v. Free, 94 Ill. 2d 378, 400 (1983)). Accordingly,

probable cause exists in a particular case when the totality of the facts and

circumstances within the affiant’s knowledge at the time the warrant is applied for

“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.” People v. Griffin, 178

Ill. 2d 65, 77 (1997). It is the probability of criminal activity, rather than proof

beyond a reasonable doubt, that is the standard for determining whether probable

cause is present. Tisler, 103 Ill. 2d at 236.

¶ 30 Whether the necessary probability exists is governed by commonsense

considerations that are factual and practical, rather than by technical rules. Id. As

the United States Supreme Court explained in Illinois v. Gates, 462 U.S. 213, 238

(1983):

“The task of the issuing magistrate is simply to make a practical,

common-sense decision whether, given all the circumstances set forth in the

affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of

persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.”

¶ 31 A reviewing court must not substitute its judgment for that of the magistrate in

construing an affidavit but must instead merely decide whether the magistrate had a

substantial basis for concluding that probable cause existed. McCarty, 223 Ill. 2d at

153. The court’s review must not be tainted by hindsight but instead should be

based upon whether “ ‘a reasonable and prudent man, having the knowledge

possessed by the officer at the time of the arrest, would believe the defendant

committed the offense.’ ” Tisler, 103 Ill. 2d at 237 (quoting People v. Wright, 41 Ill.

2d 170, 174 (1968)). Moreover, in determining whether an affidavit demonstrates

the existence of probable cause, the resolution of doubtful or marginal cases should

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largely be determined by the preference to be accorded to the warrants. People v.

Stewart, 104 Ill. 2d 463, 477 (1984).

¶ 32 A sworn complaint supporting a search warrant is presumed valid. McCarty,

223 Ill. 2d at 154. Defendant has not challenged the veracity of Officer Harrison’s

statements in the complaint, so we view those statements as true for purposes of this

appeal.

¶ 33 With the preceding legal standards in mind, we now turn to the facts of this

case. Defendant argues that the dissenting justice in the appellate court was correct

that there was no probable cause to search defendant’s home because the totality of

circumstances did not establish a fair probability that evidence of Casillas’s drug

dealing would be found in defendant’s home. Defendant points out that there was

no direct evidence that criminal activity was occurring in defendant’s home, as

there were no observations that Casillas was dealing drugs from the home, and

defendant was not the target of the search. Defendant contends that, in the absence

of direct information, the warrant application must establish a nexus or connection

between the criminal offense, the items to be seized, and the place to be searched.

Defendant asserts that any such nexus was missing in this case, given the absence

of facts connecting Casillas’s criminal activity to defendant’s home. Defendant

claims that a person’s simple presence in a home, for an undetermined amount of

time before conducting a drug transaction in public, does not establish a fair

probability that criminal activity was ongoing in the home. Defendant states that

this is particularly true given that the home is afforded the highest protection under

fourth amendment jurisprudence.

¶ 34 The State responds that, under the applicable deferential standard of review, the

information in Officer Harrison’s affidavit, along with the inferences reasonably

drawn therefrom, established a substantial basis to conclude that there was a fair

probability that contraband or evidence of illegal drug activity would be found at

defendant’s home. Consequently, the State concludes that the totality of

circumstances, including the evidence and reasonable inferences from that

evidence, provided the magistrate with a substantial basis to determine that there

was a fair probability that evidence of Casillas’s drug dealing would be found at

701 West Marion Street, so that the trial court properly denied defendant’s motion

to suppress.

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¶ 35 Defendant is correct that the “chief evil” deterred by the fourth amendment is

the physical invasion of the home. Payton v. New York, 445 U.S. 573, 585-86

(1980). The home is the first among equals under the fourth amendment. Burns,

2016 IL 118973, ¶ 24. In fact, the right of a citizen to retreat into the home and

“ ‘there be free from unreasonable governmental intrusion’ ” stands at the core of

the fourth amendment. Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting

Silverman v. United States, 365 U.S. 505, 511 (1961)). With regard to the search of

an individual’s home, “[t]he critical element in a reasonable search is not that the

owner of the property is suspected of crime but that there is reasonable cause to

believe that the specific ‘things’ to be searched for and seized are located on the

property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556

(1978). As stated by the Court of Appeals for the Sixth Circuit, “ ‘[t]here must be,

in other words, a nexus between the place to be searched and the evidence

sought.’ ” (Emphasis in original.) United States v. Brown, 828 F.3d 375, 381 (6th

Cir. 2016) (quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)

(en banc)). Stated otherwise, a warrant application “must give someone of

‘reasonable caution’ reason to believe that evidence of a crime will be found at the

place to be searched.” United States v. Ribeiro, 397 F.3d 43, 49 (1st Cir. 2005). To

that end, sufficient information must be presented to the magistrate to allow the

magistrate to determine probable cause, as his action cannot be a mere ratification

of the bare conclusions of others. Gates, 462 U.S. at 239.

¶ 36 Keeping in mind that a magistrate may draw “reasonable inferences” from the

information given in a search warrant application and that doubtful or marginal

cases should be determined by the preference to be accorded warrants, we

nonetheless find that the facts in Officer Harrison’s sworn complaint, and the

inferences drawn therefrom, did not provide the magistrate in this case with

probable cause to issue the search warrant for defendant’s home.

¶ 37 Here, the facts Officer Harrison recited in support of his claim that he had

probable cause to believe the items sought in the search warrant would be located at

701 West Marion Street included the following: two of the three drug buys

conducted over a period of 20 3 days occurred in the vicinity of 701 West Marion

Street; Casillas arrived at the location of the first drug buy in a vehicle registered to

3

As noted above, it was a period of 19 days.

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Letiticia Hernandez at 701 West Marion Street; while Officer Harrison was texting

Casillas about the third drug buy, Officers Simonich and Prochaska conducted

surveillance on 701 West Marion Street and observed Casillas exit the residence

and walk to the grocery store where he met Officer Harrison and exchanged 3.6

grams of cocaine for $150 in cash; Casillas had been positively identified from an

Illinois Secretary of State driver’s license photograph; and law enforcement records

showed that Casillas was an associate of Leticia Hernandez who resides at 701

West Marion Street.

¶ 38 The circuit court found probable cause based upon the fact that Casillas was

seen leaving defendant’s house before the third drug buy. The appellate court found

probable cause based on the fact that Casillas used a vehicle registered to

defendant’s residence to drive to the first drug transaction and the fact that Casillas

was seen leaving defendant’s home while communicating with Officer Harrison to

set up a drug transaction and walked from defendant’s residence to that transaction.

¶ 39 Contrary to the lower courts, we find those facts fail to establish a sufficient

nexus between Casillas’s criminal activities and the residence at 701 West Marion

Street. Although the complaint for a search warrant stated that law enforcement

records showed that Casillas was an “associate” of Hernandez, the connection

between Casillas and Hernandez was not further explained, and the statement on its

own did not create an inference that Casillas and Hernandez were involved in drug

dealing or drug trafficking together, let alone that Casillas was storing evidence of

drug dealing at defendant’s home. There was nothing in the complaint connecting

Leticia Hernandez to Casillas’s illegal activities. There was no further discussion of

Hernandez in the complaint, particularly any evidence that Hernandez had ever

been suspected of, arrested for, or charged with any crime, much less a drug-related

offense. Indeed, there was no information in the complaint concerning whether

Casillas himself had a prior criminal history. There was nothing in the complaint

indicating that Casillas had ever been arrested for, or convicted of, a drug-related

offense or had been involved in drug dealing prior to his three transactions with

Officer Harrison.

¶ 40 The State claims that the fact that Hernandez allowed Casillas to drive her

vehicle suggests that Casillas was more than a casual acquaintance, so that the

relationship between Hernandez and Casillas supports an inference that it was

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fairly probable that Casillas would hide evidence at the residence that defendant

shared with Hernandez. We do not agree that such an inference flows from the fact

that Casillas drove to one drug deal in Hernandez’s vehicle. There was no evidence

that Casillas regularly used Hernandez’s vehicle or that Casillas used the vehicle

more than the one time described in the complaint. There is no evidence indicating

where Casillas was before arriving at the drug deal in Hernandez’s vehicle. In

particular, there was no evidence that Casillas drove Hernandez’s vehicle directly

from defendant’s home to meet Officer Harrison.

¶ 41 At best, the totality of facts and circumstances in the sworn complaint creates

an inference connecting Hernandez’s vehicle to the drug sale, but it fails to further

connect defendant’s home to the drug sale. The fact that an alleged drug dealer

drives another individual’s car to one drug deal does not create an inference that the

vehicle’s owner has contraband in his or her home and does not justify a search of

the vehicle owner’s home. To hold otherwise could expose virtually any innocent

third party to a search of the home. Such a result would be entirely at odds with the

protections accorded an individual’s home under the fourth amendment.

¶ 42 The State also argues that, because the second and third drug sales took place at

businesses within a five-minute and three-minute walk of 701 West Marion Street,

it was reasonable to infer that Casillas was familiar with the neighborhood around

701 West Marion Street. Therefore, the State claims that it was reasonable to infer

that 701 West Marion Street was a logical and convenient place for Casillas to store

and access his drug supply and his tools of drug dealing.

¶ 43 Here too, we do not agree with the State that an inference arises based upon the

location of the two drug sales vis-á-vis defendant’s home. No evidence was

presented that defendant lived at 701 West Marion Street, nor was there evidence

that Casillas was a frequent visitor to 701 West Marion Street. Casillas was seen at

701 West Marion Street one time. The affidavit did not specify defendant’s legal

address, although the complaint stated that Officer Harrison had identified Casillas

from his Illinois Secretary of State driver’s license. It is possible Casillas also lived

in the neighborhood and, for that reason, was familiar with the area.

¶ 44 In addition, with regard to the second sale, the sworn complaint contains no

information describing whether Casillas walked or drove to that sale, nor does the

complaint describe where Casillas had been immediately prior to that sale. Absent

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such information, we find no basis for the State’s inference finding significance

based upon the proximity of the second sale to defendant’s home. In any event, that

Casillas conducted two drug sales in the vicinity of, but not at, 701 West Marion

Street, and may have been familiar with the area, does not give rise to an inference

that Casillas would store his contraband in defendant’s home, as opposed to any

other home in the vicinity of the drug sales.

¶ 45 In this regard, we agree with the court in United States v. Rowland, 145 F.3d

1194, 1205 (10th Cir. 1998), which found that an “affidavit [that] provide[s] no

basis to either limit the possible sites or suggest that [the suspect’s] home was more

likely than the otherwise endless possibilities” is “insufficient to provide a

substantial basis for concluding there was probable cause to believe the contraband

would be in [the suspect’s] home at the time the search was to take place.”

¶ 46 Here, the information set forth in the sworn complaint fails to connect

defendant’s home to Casillas’s drug sales. Therefore, the complaint does not create

a nexus between the specific items listed in the complaint for a search warrant and

defendant’s home sufficient to support a finding of probable cause to issue the

search warrant.

¶ 47 The State also argues that the fact that Casillas left 701 West Marion Street to

complete the third drug sale supports an inference that it is likely that Casillas

possessed the drugs at 701 West Marion Street and also supports an inference that

Casillas’s drug supply and other tools of drug dealing were stored there.

¶ 48 Again, we disagree that any such inferences flow from the evidence in the

affidavit. Casillas went to one of three drug sales from defendant’s home. The three

drug sales took place over a period of 19 days. With regard to the third drug sale,

there was no evidence indicating how long Casillas had been at defendant’s home

before he left the home and walked to the drug sale. While Casillas apparently had

the drugs on his person when he left 701 West Marion Street to meet Officer

Harrison for the third drug sale, it does not follow that Casillas obtained those drugs

from defendant’s home as opposed to any other place. Without more information

connecting defendant’s home to the drug sale, it is equally possible to infer that

Casillas had the drugs on his person when he arrived at defendant’s home.

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¶ 49 We particularly note that, although the State references Casillas’s drug supply

and other tools of drug dealing, the complaint for a search warrant set forth no facts

to establish or infer that Casillas had a “drug supply” or other tools of drug dealing

or that such items might be found at defendant’s home. Again, the complaint for a

search warrant simply described three drug sales from Casillas to Officer Harrison

over a period of 19 days, then stated that Officer Harrison believed probable cause

existed for issuance of a search warrant in order to seize “cocaine, United States

currency, including official advanced funds, proof of residency, proof of

identification, drug records, drug packaging, drug paraphernalia and any other

evidence of the crimes of unlawful possession of a controlled substance and

unlawful possession of a controlled substance with intent to deliver.” The

complaint for a search warrant failed to supply the necessary nexus between

defendant’s home and the evidence sought in the complaint.

¶ 50 The State also notes that each of Casillas’s deliveries to Officer Harrison

occurred on the same day as the order. The State infers from this that a drug dealer’s

ability to produce drugs soon after receiving a request for them suggests he has a

ready supply and that a drug dealer who has participated in multiple drug sales is far

likelier to have access to large quantities of drugs and other tools of the trade. The

State suggests it is likely that Casillas stored his drugs in defendant’s home, citing

cases recognizing that dealers sometimes use “stash” houses to store drugs and

related items.

¶ 51 Here too, the State’s inferences are not supported by the evidence. As the Sixth

Circuit Court of Appeals has recognized, the sale of drugs out of a residence “exists

upon a continuum ranging from an individual who effectuates the occasional sale

from his or her personal holdings of drugs to known acquaintances, to an organized

group operating an established and notorious drug den.” United States v. Hython,

443 F.3d 480, 485 (6th Cir. 2006). The facts and inferences as set forth in Officer

Harrison’s sworn complaint were more suggestive of an occasional sale than a

full-scale drug operation, much less a drug operation run out of defendant’s home.

There was no allegation in the complaint that the amount of drugs sold to Officer

Harrison was indicative of a large-scale drug operation, nor was there an allegation

that Casillas was a known drug dealer. Even assuming Casillas had access to a

ready supply of drugs, the sworn complaint fails to create a nexus between

defendant’s home and that supply. There certainly was no evidence in the sworn

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complaint supporting an inference that defendant’s home was a “stash house.” As

Justice O’Brien observed in her dissent:

“Noticeably absent from the complaint are any allegations that Casillas lived in

the residence, stored the narcotics in the residence, or conducted any drug

transactions inside the residence. The three alleged transactions occurred over a

period of 19 days (May 5 to June 8, 2009). At best, the complaint established

that Casillas was an acquaintance of the owners of the residence. It did not

establish a nexus to believe evidence of Casillas’s illegal activities would be

found in the residence.” 2017 IL App (3d) 150264, ¶ 28 (O’Brien, J.,

dissenting).

¶ 52 We note that in its brief, the State cites extensive case law in support of the

inferences it draws between Casillas’s behavior and defendant’s home. For

example, the State cites case law stating: a drug dealer’s ability to produce drugs

soon after receiving a request for them suggests he has a ready supply

(Commonwealth v. Clagon, 987 N.E.2d 554 (Mass. 2013)); a dealer who has

participated in multiple drug sales is far likelier to store or have access to large

quantities of drugs and other tools of the drug trade (Sowers v. Commonwealth, 643

S.E.2d 506 (Va. Ct. App. 2007)); dealers sometimes use “stash houses” to store

drugs and related items (United States v. Garcia-Villalba, 585 F.3d 1223 (9th Cir.

2009)); and the fact that a dealer leaves his home to complete a drug sale makes it

more likely that he possessed drugs at his home (United States v. Aguirre, 664 F.3d

606 (5th Cir. 2011); United States v. Montes-Medina, 570 F.3d 1052 (8th Cir.

2009); United States v. Dessesaure, 429 F.3d 359 (1st Cir. 2005); State v. Saine,

297 S.W.3d 199 (Tenn. 2009); Holmes v. State, 796 A.2d 90 (Md. 2002)).

¶ 53 While we agree that the preceding inferences may follow in a particular case

based upon the facts set forth in a complaint for a search warrant, we find that those

inferences do not follow from the facts presented in the complaint for a search

warrant in this case. Aside from setting forth the general statements in the cited

cases, the State fails to demonstrate that the facts in those cases are analogous to the

facts in the instant case. They are not. Notably, in the cases cited by the State, the

search warrants at issue contained some evidence creating an inference that the

items to be seized would be found at the residence to be searched.

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¶ 54 For example, in Clagon, the affiant officer described his experience in drug

investigations and arrests, attesting “that he was familiar with drug distribution

tactics, such as a delivery service whereby a distributor conceals a supply of

controlled substances at his residence and conducts sales to individual buyers at

other locations.” 987 N.E.2d at 555-56. The affidavit in Clagon also suggested the

defendant was an established drug dealer with an ongoing, regular trade, which was

corroborated by controlled purchases where the defendant was able to produce

heroin within a short time after receiving a call from a confidential informant. Id. at

557. In addition, the affidavit established the defendant’s connection to the

premises, as he twice left the premises and went directly to the drug sale and, on a

third occasion, was seen returning to the premises after the drug sale.

¶ 55 Similarly, the affidavit in Holmes set forth the affiant’s extensive experience

and expertise in the detection and investigation of controlled dangerous substances

offenses. Specifically, the affiant stated that, in his experience, “he knew drug

traffickers often maintain large amounts of money at their residence in order to

finance their operations, as well as drugs, paraphernalia, weapons, and various

books, records, and other documents relating to the ordering, transportation and

distribution of controlled dangerous substances.” Holmes, 796 A.2d at 98.

¶ 56 In Garcia-Villalba, the affidavit began by listing the Drug Enforcement

Agency agent’s professional and personal experience with the investigation. The

agent asserted that “ ‘[p]ersons involved in drug trafficking conceal in their

residences and businesses caches of drugs.’ ” Garcia-Villalba, 585 F.3d at 1233.

The agent’s affidavit then spent 10 pages discussing the information obtained

through electronic surveillance, including the determination that the premises to be

searched was being used as a “stash house.” Id.

¶ 57 The affidavit in support of a search warrant in Saine also included information

from the affiant detective concerning his experience as a police officer generally, as

well as his specific experience as a federal narcotics task force officer and a

narcotics detective. The affiant noted that, during his tenure, he “had observed that

drug dealers are known to hide their drugs, the proceeds of drug sales, and financial

records related to their business in secure locations ‘such as their … residences …

or other locations which they control.’ ” Saine, 297 S.W.3d at 203.

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¶ 58 In Sowers, the affidavit for a search warrant to search the defendant’s residence

included the statement:

“ ‘It is this affiants [sic] experience that Marijuana and Cocaine can easily be

hidden inside of a residence. It is also this affiants [sic] experience that persons

involved in using and Distributing narcotics will not always take everything

they have with them when they travel. It is also this affiants [sic] experience

that narcotics and the paraphernalia Associated with the use of Narcotics are

often hidden inside the user’s residence for safe keeping.’ ” 643 S.E.2d at 508.

¶ 59 Similarly, in Aguirre, the affidavit for a search warrant recited that the

defendant was under surveillance by the Drug Enforcement Agency and had been

arrested for carrying “ ‘substantial amounts of cocaine’ ” and marijuana in his

vehicle immediately after leaving his residence. 664 F.3d at 613. The affidavit also

stated that the affiant’s “experience as an investigator confirmed that drug dealers

are likely to keep records of their trafficking activities in their homes.” Id.

¶ 60 In contrast to the cases cited by the State, Officer Harrison’s sworn statement in

this case fails to describe his experience with drug investigations and arrests,

instead stating only that Officer Harrison was a member of the Joliet Police

Department for the past 10 years and was currently assigned to the narcotics unit.

Officer Harrison does not describe drug distribution techniques, or habits of drug

dealers, that might support an inference that Casillas stored his drugs and tools of

the drug trade at defendant’s home. Aside from the three sales to Officer Harrison,

there was no evidence that Casillas was an established drug dealer with an ongoing,

regular trade or whether the amount of drugs sold to Officer Harrison was

consistent with personal use. Although the State correctly argues that an affidavit

for a search warrant should not be judged based upon what it does not include,

Officer Harrison’s sworn statement in this case entirely failed to provide any

evidence connecting defendant’s home to the items to be searched. 4 Rather, the

sworn statement broadly concludes that the evidence sought will be found at

4

In so holding we emphasize that our decision does not thereby find that the opinion of a law

enforcement officer, standing alone, may provide the necessary nexus between the place to be

searched and the evidence sought. That issue is not before us. We note that the federal courts are

divided on the issue. See United States v. Feliz, 20 F. Supp. 2d 97, 103 (D. Me. 1998) (noting the

divide in the federal courts).

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defendant’s house, without providing any basis sufficient to establish probable

cause for that conclusion.

¶ 61 Although we have addressed the various inferences suggested by the State

individually, we do not suggest that each factual matter in an affidavit for a search

warrant must establish probable cause in order for a court to find probable cause.

As discussed, this court applies a totality of the circumstances test to review

whether the information before the magistrate was sufficient to find probable cause.

In this case, however, the totality of the circumstances fails to establish a nexus

between Casillas’s drug deals and defendant’s home. The magistrate had no

substantial basis to conclude that probable cause existed to believe that evidence of

the crimes of unlawful possession of a controlled substance and unlawful

possession of a controlled substance with the intent to deliver would be found in a

search of 701 West Marion Street. For that reason, the search warrant in this case

was not supported by probable cause and was thereby invalid. The trial court’s

finding, that it was reasonable to infer that there was a fair probability that drugs

would be found at defendant’s home because Casillas was seen leaving defendant’s

house before the third drug buy, was against the manifest weight of the evidence.

The appellate court thus erred in affirming the trial court’s order denying

defendant’s motion to suppress.

¶ 62 Our inquiry does not end there, however. Although the fourth amendment

protects the right to be free from “ ‘unreasonable searches and seizures,’ ” it is

silent concerning how that right is to be enforced. Davis v. United States, 564 U.S.

229, 231 (2011) (quoting U.S. Const., amend. IV). The United States Supreme

Court therefore created the exclusionary rule, which is a deterrent sanction that bars

the prosecution from introducing evidence obtained by way of a fourth amendment

violation. Id. at 231-32. Exclusion, however, is “ ‘not a personal constitutional

right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional

search.” Id. at 236 (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)). Rather, the

exclusionary rule’s sole purpose is to deter further fourth amendment violations. Id.

at 236-37. Accordingly, operation of the rule has been limited to situations in which

the deterrent purpose is “thought most efficaciously served.” United States v.

Calandra, 414 U.S. 338, 348 (1974). Exclusion exacts a heavy toll on both the

judicial system and society at large, as exclusion “almost always requires courts to

ignore reliable, trustworthy evidence bearing on guilt or innocence.” Davis, 564

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U.S. at 237. Moreover, the bottom line effect of exclusion, in many cases, “is to

suppress the truth and set the criminal loose in the community without

punishment.” Id. Consequently, exclusion should be used only when the deterrence

benefits of suppression outweigh the heavy costs. Id. As the Davis Court

recognized, beginning in United States v. Leon, 468 U.S. 897 (1984), the United

States Supreme Court “recalibrated our cost-benefit analysis in exclusion cases to

focus the inquiry on the ‘flagrancy of the police misconduct’ at issue.” Davis, 564

U.S. at 238 (quoting Leon, 468 U.S. at 911).

¶ 63 The Court in Leon recognized a good faith exception to the exclusionary rule,

holding that exclusion of evidence was not required where a police officer acted in

objectively reasonable reliance on a facially valid warrant that was later found

invalid based upon a lack of probable cause. This court adopted the Leon good faith

exception in Stewart, 104 Ill. 2d at 477. The good faith exception has also been

codified in sections 114-12(b)(1) and (b)(2) of the Code of Criminal Procedure of

1963 (725 ILCS 5/114-12(b)(1), (b)(2) (West 2008)). Section 114-12(b)(1)

provides that a court should not suppress otherwise admissible evidence if a police

officer seized that evidence in good faith. Section 114-12(b)(2)(i) defines 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 ***.” Id. § 114-12(b)(2)(i).

¶ 64 The deterrent benefit of suppression must outweigh the “ ‘substantial social

costs,’ ” in order for exclusion of the evidence to apply. People v. LeFlore, 2015 IL

116799, ¶ 23 (quoting Leon, 468 U.S. at 907). Leon recognized four situations

where the suppression of evidence would be appropriate. The first is where “the

magistrate or judge in issuing the warrant was misled by information in an affidavit

that the affiant knew was false or would have known was false except for his

reckless disregard of the truth.” Leon, 468 U.S. at 923. The second instance is

“where the issuing magistrate wholly abandoned his judicial role.” Id. Third, the

good faith exception would not apply if a warrant was “based on an affidavit ‘so

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lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable,’ ” that an officer could not manifest objective good faith in

relying on such a warrant. Id. (quoting Brown v. Illinois, 422 U.S. 590, 610-11

(1975) (Powell, J., concurring in part, joined by Rehnquist, J.)). With regard to the

third situation, Leon explained that an officer could not “obtain a warrant on the

basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of the

circumstances under which the warrant was obtained to conduct the search.” Id. at

923 n.24. Finally, Leon held that, depending on the circumstances of the case, a

warrant might be so facially deficient, as in failing to particularize the place to be

searched or the things to be seized, that the executing officers cannot reasonably

presume it to be valid. Id. at 923.

¶ 65 Defendant argues that the State cannot meet its burden to show that this court

should apply the good faith exception here. Defendant contends that the third Leon

situation is present in this case because Officer Harrison’s sworn complaint was so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable. Defendant maintains that Officer Harrison’s complaint was

a “bare bones” affidavit, so that the officers’ reliance on the affidavit was

objectively unreasonable.

¶ 66 The State denies that the complaint was “bare bones,” claiming the sworn

complaint cited multiple pieces of evidence tying Casillas and his drug-selling

activity to 701 West Marion Street, based both upon direct observation and related

reasonable inferences. The State further notes that the threshold for demonstrating

that the good faith exception should not be applied is a high one, as evidenced by

the fact that the magistrate, the circuit court judge, and two of three appellate court

justices concluded that the warrant affidavit provided probable cause to justify the

search of 701 West Marion Street. Consequently, if the search of 701 West Marion

Street was invalid, the good faith exception to the exclusionary rule should apply.

¶ 67 Whether the good faith exception to the exclusionary rule applies presents a

legal question that we review de novo. This court has not directly addressed the

issue of whether an affidavit was a “bare bones” affidavit for purposes of a good

faith analysis. In defining a bare-bones affidavit, we find the decision in United

States v. White, 874 F.3d 490, 496 (6th Cir. 2017), instructive. There, the court

explained that a bare-bones affidavit is “one that states only ‘suspicions, beliefs, or

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conclusions, without providing some underlying factual circumstances regarding

veracity, reliability, and basis of knowledge.’ ” Id. (quoting United States v.

Laughton, 409 F.3d 744, 748 (6th Cir. 2005)). Stated otherwise:

“a bare-bones affidavit is a conclusory affidavit, one that asserts ‘only the

affiant’s belief that probable cause existed.’ [Citation.] It provides nothing

more than a mere ‘guess that contraband or evidence of a crime would be

found’ [citation], either ‘completely devoid’ of facts to support the affiant’s

judgment that probable cause exists [citation], or ‘so vague as to be conclusory

or meaningless.’ [Citation.]” Id.

¶ 68 White further explained that a bare-bones affidavit should not be confused with

one that lacks probable cause. Rather, it must be so lacking in indicia of probable

cause that, despite a judicial officer having issued a warrant, no reasonable officer

would rely on the warrant. Id. at 497. Thus, an affidavit should be judged for

purposes of the good faith exception under a less demanding showing than the

substantial basis threshold required to prove the existence of probable cause.

Laughton, 409 F.3d at 748. That is because if good faith reliance were judged by

the substantial basis standard, the good faith exception would be devoid of

substance. Id. at 749.

¶ 69 Keeping in mind that exclusion is a “bitter pill” that is to be used only as a

“ ‘last resort’ ” (Davis, 564 U.S. at 237 (quoting Hudson v. Michigan, 547 U.S.

586, 591 (2006))), we nonetheless find that the affidavit in this case was bare-bones

and failed to establish the required minimal nexus between defendant’s home and

the items sought in the search warrant. The police officers could not have acted

with an objectively reasonable good faith belief that their conduct was lawful in

executing the search warrant on defendant’s residence. The statements in the

complaint—that Casillas drove a vehicle registered to 701 West Marion Street to

one drug deal and 19 days later walked to another drug deal from 701 West Marion

Street—are completely devoid of facts to support Officer Harrison’s judgment that

probable cause to search defendant’s home existed. There are no facts directly

connecting defendant’s residence with Casillas’s drug dealing activity, nor does the

complaint for a search warrant create an inference connecting the drug dealing to

defendant’s home. The complaint for a search warrant is conclusory, asserting only

Officer Harrison’s belief that probable cause existed. We find that the facts stated

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in the complaint and the inferences to be draw therefrom were so lacking in indicia

of probable cause as to render official belief in the existence of probable cause

entirely unreasonable.

¶ 70 As noted, “[d]ecisions involving the exclusionary rule and the Illinois

Constitution’s article I, section 6, require that we carefully balance the legitimate

aim of law enforcement against the right of our citizens to be free from

unreasonable governmental intrusion.” Tisler, 103 Ill. 2d at 245. We also recognize

that “suppression of evidence obtained pursuant to a warrant should be ordered

only on a case-by-case basis and only in those unusual cases in which exclusion

will further the purposes of the exclusionary rule.” Leon, 468 U.S. at 918.

¶ 71 This is such an unusual case. The right of citizens to be free from unreasonable

governmental intrusion into their homes prevails over the legitimate aims of law

enforcement under the facts of this case. The purpose of the exclusionary rule, to

deter police misconduct, has application here. We decline to sanction the search of

a third party’s home based solely on the fact that an individual was seen leaving that

home to go to one drug deal and arrived at another drug deal 19 days earlier driving

a vehicle registered to that home. To hold otherwise would undermine the express

protections accorded a citizen’s home under the United States and Illinois

Constitutions.

¶ 72 Because we find that the complaint for a search warrant in this case amounted

to a bare-bones affidavit, we find that the good faith exception to the exclusionary

rule does not apply in this case. The trial court therefore erred in denying

defendant’s motion to quash, and the appellate court erred in affirming the trial

court’s order.

¶ 73 For all the foregoing reasons, we reverse the appellate court’s order affirming

the trial court’s order denying defendant’s motion to quash the search warrant and

suppress evidence, and we reverse the trial court’s order on defendant’s motion to

quash and suppress as well. In light of our decision reversing the trial court’s order

on defendant’s motion to quash and suppress, we also reverse defendant’s

conviction for unlawful possession of a weapon by a felon and remand the case to

the trial court for further proceedings.

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¶ 74 Judgments reversed.

¶ 75 Cause remanded.

¶ 76 JUSTICE GARMAN, dissenting:

¶ 77 The majority concludes that Officer Harrison’s affidavit in support of the

warrant to search defendant Jorge Manzo’s residence did not provide probable

cause and that the affidavit was so deficient that no reasonable officer could rely on

it. I disagree with both conclusions. I respectfully dissent.

¶ 78 1. Probable Cause

¶ 79 The first question is whether the warrant to search 701 West Marion Street was

supported by probable cause. Probable cause requires only that the evidence “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.” People v. Griffin, 178

Ill. 2d 65, 77 (1997). This depends on “the ‘totality of the circumstances and facts

known to the officers and court when the warrant was applied for.’ ” People v.

Tisler, 103 Ill. 2d 226, 236 (1984) (quoting People v. Free, 94 Ill. 2d 378, 400

(1983)).

¶ 80 The majority rightly quotes the United States Supreme Court’s explanation in

Illinois v. Gates that “[t]he task of the issuing magistrate is simply to make a

practical, common-sense decision whether, given all the circumstances set forth in

the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of

persons supplying hearsay information, there is fair probability that contraband or

evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.

213, 238 (1983).

¶ 81 For a court reviewing a magistrate’s probable cause determination, the inquiry

is limited even further. Rather than evaluating the evidence anew, we ask only

whether the magistrate judge had a “substantial basis” for concluding that probable

cause existed. Id. at 238-39; People v. McCarty, 223 Ill. 2d 109, 153 (2006).

Additionally, “ ‘the resolution of doubtful or marginal cases in this area should be

largely determined by the preference to be accorded to warrants.’ ” People v.

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Stewart, 104 Ill. 2d 463, 477 (1984) (quoting United States v. Ventresca, 380 U.S.

102, 109 (1965)).

¶ 82 Although the majority dutifully recites these principles, it disregards them in its

analysis of the facts of this case. Instead, the majority assumes that, because

innocent explanations of the officers’ observations were possible, those officers

must have lacked probable cause. But the possible situations that the majority

imagines were highly unlikely, and the officers were justified in assuming the more

likely scenario was that Casillas had stored drugs at 701 West Marion Street.

¶ 83 Officer Harrison’s affidavit provided a narrative of his undercover

investigation that demonstrates why his inferences were reasonable. His affidavit

explained that on May 20, 2009, he contacted Casillas to procure cocaine and

Casillas agreed to a sale. Casillas arrived at the sale location in a vehicle registered

to Leticia Hernandez at 701 West Marion Street. At this point, Officer Harrison had

a reason to investigate that address.

¶ 84 Eleven days later, Officer Harrison contacted Casillas to procure cocaine, and

again Casillas provided it. This time the meeting was closer to 701 West Marion

Street. Because Casillas arrived at the sale with a small quantity of drugs, it is

reasonable to infer that he may have stored drugs somewhere near the sale location.

The Marion Street residence was a plausible candidate at this point. Certainly,

Casillas might simply have borrowed a friend’s vehicle, and the address associated

with that vehicle may have been unrelated to Casillas’s drug dealing. At this point,

Casillas’s use of Hernandez’s vehicle on this occasion alone did not provide a

sufficient connection to Hernandez’s and defendant’s home to justify a search

warrant. Recognizing this, Officer Harrison continued investigating before

applying for a search warrant.

¶ 85 However, for a third time in less than three weeks, Harrison contacted Casillas

to procure cocaine. For the third time, Casillas provided cocaine on the same day

that Harrison contacted him. 5 Contrary to the majority’s analysis, Casillas was not

5

This is the timeline as the State presents it, and the majority does not challenge it. The affidavit

itself clearly conveys that the third drug transaction occurred on the same day that Harrison texted

Casillas. The affidavit does not explicitly state that the first two transactions occurred on the same

days that Harrison contacted Casillas. However, a paragraph that begins “On 5/20/09” describes the

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an “occasional” seller. Supra ¶¶ 51, 60. In United States v. Hython, 443 F.3d 480,

485 (6th Cir. 2006), which the majority cites for this characterization, the officers

observed only one drug transaction between an informant and the suspect. Here

Officer Harrison solicited cocaine directly from Casillas on three separate

occasions, and Casillas was consistently able to provide cocaine at a moment’s

notice. Furthermore, unless his only customers were these three undercover

officers, Casillas likely sold cocaine more frequently than once a week. Such an

inference might be inappropriate during trial, but it is just the sort of inference that

police conducting an investigation could consider.

¶ 86 Seeking the location of Casillas’s stash and following up on their lead, Officers

Prochaska and Simonich camped outside 701 West Marion Street while Officer

Harrison contacted Casillas. After Harrison requested cocaine from Casillas,

Officer Simonich saw Casillas emerge from 701 West Marion Street, and Officer

Prochaska followed him as he walked to the sale location. From this, police inferred

that the house likely contained Casillas’s stash of cocaine.

¶ 87 The majority proposes instead that Casillas had simply been visiting a friend

and that “Casillas had the drugs on his person when he arrived at defendant’s

home.” Supra ¶ 48. Perhaps it is possible that Casillas carried cocaine to his

friend’s house in case someone else contacted him asking for drugs. However, it is

far more likely that Casillas had a ready supply of cocaine at 701 West Marion

Street, because police found him at that residence—the same residence registered

to the vehicle that Casillas drove to a drug sale a few weeks prior—at the same time

that Officer Harrison contacted him to procure cocaine, and Casillas travelled from

that residence to the sale location. I submit that these are common-sense inferences.

Magistrate judges, however, may rely on “ ‘ “common-sense conclusions about

human behavior” ’ ” when making probable cause determinations. District of

Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct. 577, 587 (2018) (quoting Gates,

462 U.S. at 231, quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).

¶ 88 The majority faults the affidavit for lacking the contextual background

contained in the warrant applications from cases such as Commonwealth v. Clagon,

first phone call and meeting. A paragraph that begins “On 5/28/09” describes the second set of

communications and the meeting. From this the magistrate judge could infer the timeline.

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987 N.E.2d 554, 555-56 (Mass. 2013), United States v. Garcia-Villalba, 585 F.3d

1223, 1233 (9th Cir. 2009), State v. Saine, 297 S.W.3d 199, 203 (Tenn. 2009),

United States v. Aguirre, 664 F.3d 606, 613 (5th Cir. 2011), and Sowers v.

Commonwealth, 643 S.E.2d 506, 508 (Va. Ct. App. 2007). Supra ¶¶ 54-59.

However, the sort of information that the majority demands actually contributed

little to the warrant applications in those cases. Those affidavits contained such

generic remarks as “ ‘drug dealers are known to hide their drugs, the proceeds of

drug sales, and financial records related to their business in secure locations “such

as their *** residences *** or other locations which they control.” ’ ” Saine, 297

S.W.3d at 203. Similarly, in Sowers, the officer submitted an affidavit stating it was

his “ ‘experience that Marijuana and Cocaine can easily be hidden inside of a

residence.’ ” 643 S.E.2d at 508. I would not fault Officer Harrison for declining to

include such general statements in his affidavit. His 10 years as a police officer

likely taught him that criminals store contraband in secure locations, and the

magistrate judge was surely aware of cocaine’s capacity to be hidden in houses.

Although officers’ experiences may show that drug dealers often keep drugs in

either their homes or other secure locations, I would not require officers to fill their

affidavits with trivial and uninformative generalities such as this.

¶ 89 Throughout its opinion, the majority notes that police were investigating

Casillas’s drug dealing, not Hernandez or defendant. Supra ¶¶ 39, 44. This is not

decisive. The United States Supreme Court explained in Zurcher v. Stanford Daily,

436 U.S. 547, 556 (1978), that the “critical element in a reasonable search is not

that the owner of the property is suspected of crime but that there is reasonable

cause to believe that the specific ‘things’ to be searched for and seized are located

on the property to which entry is sought.” See also Ganek v. Leibowitz, 874 F.3d 73,

86 (2nd Cir. 2017); United States v. Adams, 655 F. App’x 312, 317 (6th Cir. 2016).

The question is not whether police had probable cause to suspect that Jorge Manzo

had committed a crime and stored evidence in his home. The question is whether

they had probable cause to believe that 701 West Marion Street contained evidence

of Casillas’s drug dealing.

¶ 90 Another error that pervades the majority’s analysis is its tendency to isolate

each fact and provide an innocent explanation for that fact. This is not how courts

determine probable cause, however. Instead we look at the totality of the

circumstances. See Florida v. Harris, 568 U.S. 237, 244 (2013) (rejecting “rigid

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rules, bright-line tests, and mechanistic inquiries in favor of a more flexible,

all-things-considered approach” to probable cause determinations); Gates, 462

U.S. at 230. Considered separately, each transaction would not provide a sufficient

connection between Casillas’s illegal activities and 701 West Marion Street.

Together, however, the frequency and readiness with which Casillas delivered

cocaine, his use of the vehicle registered to 701 West Marion Street, his presence at

that address at the exact time that Harrison solicited cocaine, and his subsequent

walk from that address to the sale location suggest that he stored drugs in that

building.

¶ 91 The majority emphasizes the importance of the home as a place that is protected

from government interference. Supra ¶ 35; Payton v. New York, 445 U.S. 573, 585

(1980); People v. Burns, 2016 IL 118973, ¶ 24. No one is questioning that premise.

What we are to consider, however, as a reviewing court, is whether the magistrate

judge had a substantial basis for concluding that Officer Harrison’s affidavit

provided probable cause—a standard that is lower even than the preponderance of

the evidence standard. Based on the evidence in the affidavit, the magistrate’s

conclusion that it was fairly likely that police would find evidence of drug dealing

at 701 West Marion Street is justified.

¶ 92 2. The Good Faith Exception

¶ 93 Even if one concludes that the affidavit was insufficient, however, the

majority’s conclusion that the “good faith” exception to the exclusionary rule does

not apply is clearly wrong.

¶ 94 Both the United States Supreme Court and Illinois’s Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/100-1 et seq. (West 2008)) allow evidence

obtained pursuant to a warrant to be admitted in court even if the court concludes

that the warrant was not supported by probable cause, as long as the officers

executing the warrant relied on it in good faith. United States v. Leon, 468 U.S. 897,

923 (1984); 725 ILCS 5/114-12(b)(1) (West 2008). This “good faith” exception has

a few exceptions of its own. The majority finds that the evidence here was

inadmissible because Officer Harrison’s affidavit was “ ‘so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.’ ”

Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)).

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The majority repeats Leon’s statement that officers may not “obtain a warrant on

the basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of

the circumstances under which the warrant was obtained to conduct the search.” Id.

at 923 n.24.

¶ 95 The majority relies on United States v. White, 874 F.3d 490, 496 (6th Cir.

2017), for its characterization of a “bare bones” affidavit as one that is

“ ‘completely devoid’ of facts to support the affiant’s judgment *** or ‘so vague as

to be conclusory or meaningless.’ ” Id. (quoting United States v. Carpenter, 360

F.3d 591, 595-96 (6th Cir. 2004) (en banc), and United States v. Frazier, 423 F.3d

526, 536 (6th Cir. 2005)). In White, however, the court also explained that “an

affidavit is not bare bones if, although falling short of the probable-cause standard,

it contains ‘a minimally sufficient nexus between the illegal activity and the place

to be searched.’ [Citation.] If the reviewing court is ‘able to identify in the averring

officer’s affidavit some connection, regardless of how remote it may have

been’—‘some modicum of evidence, however slight’—‘between the criminal

activity at issue and the place to be searched,’ then the affidavit is not bare bones

and official reliance on it is reasonable. [Citation.]” (Emphasis in original.) Id. at

496-97.

¶ 96 Notably, the White court concluded that the affidavit in that case was not “bare

bones,” and it upheld the conviction. The affidavit under review reported two key

facts: an informant told police that someone sold marijuana out of a particular

building, and on one occasion police observed a confidential informant purchase

marijuana from a suspect in that building’s driveway. The White court concluded

that this information established the minimally sufficient nexus to the residence to

satisfy the good faith exception. Here we have far more specificity, including

multiple cocaine sales within a few weeks, direct observation of a suspect leaving

the residence and walking to a sale, and a vehicle registered to that address, which

the suspect used to travel to another sale.

¶ 97 White cited Nathanson v. United States, 290 U.S. 41 (1933), and Aguilar v.

Texas, 378 U.S. 108 (1964), as “prototypical examples of Leon’s bare-bones

affidavit.” White, 874 F.3d at 498; see also Leon, 468 U.S. at 915. The officer in

Nathanson stated in his affidavit only that “ ‘he has cause to suspect and does

believe that’ ” liquor illegally brought into the United States “ ‘is now deposited

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and contained within the premises’ ” subject to the search. 290 U.S. at 44. The

affiants in Aguilar reported that they had “ ‘received reliable information from a

credible person and do believe that heroin, marijuana, barbiturates and other

narcotics and narcotic paraphernalia are being kept at the above described premises

for the purpose of sale and use contrary to the provisions of the law.’ ” 378 U.S. at

109; see White, 874 F.3d at 498-99.

¶ 98 The affidavit in this case contains more evidence than the affidavit in White and

far more than the “prototypical” bare-bones affidavits from Nathanson and

Aguilar. Officer Harrison described a three-week investigation in which he

personally purchased cocaine from Casillas on three separate occasions. He first

connected Casillas’s drug dealing to 701 West Marion Street through the vehicle

registered to that address and pursued that lead with the assistance of two other

officers. Those officers witnessed Casillas travel from 701 West Marion Street to a

drug deal soon after Harrison contacted him. This certainly qualifies as at least

“ ‘some modicum of evidence,’ ” which is sufficient to satisfy the requirements of

the good faith exception. White, 874 F.3d at 497.

¶ 99 The same conclusion follows from a consideration of the Illinois statutory

provision on the good faith exception. Section 114-12(b) of the Code codified this

exception to the exclusionary rule. It defines “good faith” as

“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[.]” 725 ILCS 5/114-12(b)(2)(i) (West

2008).

¶ 100 The majority here does not suggest that the warrant contained any deliberate

errors or material misrepresentations, nor does it suggest that the magistrate was

biased. Instead it concludes that the officers could not “reasonably” have believed

that the warrant was valid. As the above discussion demonstrates, however, Officer

Harrison’s affidavit was well within the bounds that courts have set for good faith

reliance on a warrant application.

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¶ 101 I would find that Officer Harrison’s affidavit provided probable cause to search

701 West Marion Street or, if not, that the “good faith” exception is satisfied here.

Therefore, I respectfully dissent.

¶ 102 CHIEF JUSTICE KARMEIER and JUSTICE BURKE join in this dissent.

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