People v. Burns

FILED
January 30, 2015
Carla Bender
2015 IL App (4th) 140006
4th District Appellate
Court, IL
NO. 4-14-0006

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
TARON R. BURNS, ) No. 13CF66
Defendant-Appellee. )
) Honorable
) Harry E. Clem,
) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Turner and Appleton concurred in the judgment and opinion.

OPINION

¶1 At approximately 3:20 a.m. on January 10, 2013, two police officers from the

Urbana police department entered the locked apartment building in which defendant, Taron R.

Burns, lives. The officers were interested in apartment No. 10, defendant's apartment. They did

not have a search warrant and were accompanied by Hunter, a trained drug-detection dog. After

sniffing the front door to apartment No. 10, Hunter alerted to the presence of narcotics. On the

basis of this drug sniff, the police obtained a search warrant and searched defendant's apartment.

¶2 In January 2013, the State charged defendant with unlawful possession with intent

to deliver more than 500 grams but not more than 2,000 grams of cannabis (720 ILCS 550/5(e)

(West 2012)). In April 2013, defendant filed a motion to suppress evidence discovered in the
search. She argued the warrantless dog sniff of her apartment's front door violated the fourth

amendment as held in Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013). In October

2013, the trial court agreed and granted defendant's motion to suppress.

¶3 The State argues the trial court erred in granting defendant's motion to suppress.

The State contends Jardines does not apply to this case because the police did not invade upon

the curtilage to defendant's residence and defendant did not have a reasonable expectation of

privacy in the common areas of her apartment building. In the event we conclude Jardines

applies to this case, the State argues the good-faith exception to the exclusionary rule applies and

evidence seized pursuant to a search warrant may be admitted if, apart from the dog sniff, the

lawfully obtained information contained in the warrant application amounted to probable cause.

We conclude Jardines applies and affirm.

¶4 I. BACKGROUND

¶5 Defendant lives in a three-story apartment building consisting of 12 apartments.

The building has two entrances, on the east and west sides, both of which are locked. Defendant

lives on the third floor, in apartment No. 10. A storage closet and apartment No. 9 are the only

other areas accessible from the third-floor landing. The apartment doors are directly across from

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

¶6 On January 10, 2013, Matthew Mecum of the Urbana police department went to

defendant's apartment building to confirm an address. He was dressed in plain clothes and his

badge and firearm were not visible. The entry door was locked, as it was every time he went to

the building. He knocked and a resident let him into the building.

¶7 At approximately 3:20 a.m. on January 10, 2013, Michael Cervantes of the

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Urbana police department entered defendant's apartment building with a drug-detection dog

named Hunter. Officer Cervantes was let into the building by another police officer. He was

specifically interested in apartment No. 10. Once inside, he conducted a sweep of the third-floor

landing. He started at apartment No. 9, continued to the storage unit located between the two

apartments, and then swept the front door to apartment No. 10. Hunter alerted to the odor of

illegal drugs at defendant's front door. Cervantes and Hunter proceeded to the first floor and

swept two more apartment doors.

¶8 On January 10, 2013, Mecum applied for a warrant to search defendant's

apartment. The warrant application stated on "01/10/2012 [sic]," Cervantes and Hunter

conducted a sweep of apartment No. 10, "along with three additional apartment doors and a

storage closet door." Hunter "alerted" on the "apartment door" of apartment No. 10.

Additionally, the warrant application stated the Urbana police department received a

"CrimeStoppers" tip defendant was receiving shipments of marijuana from her brother, whose

name was unknown. The shipments were from California and on November 21, 2012, defendant

received a shipment of two pounds of marijuana. The tipster informed the police defendant was

selling approximately two pounds of marijuana a week and the tipster knew this because

defendant sold another type of drug to the tipster's girlfriend. The tipster also stated defendant

"has a Facebook page showing US currency." The warrant application provided information

about defendant's contacts with police in 2003 and 2008, both of which related to the possession

of cannabis. Mecum visited defendant's Facebook page and observed "numerous pictures

containing images for the legalization of marijuana ***[,] a picture containing actual marijuana

***[,] and a picture containing large amounts of US currency." Mecum had visited defendant's

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apartment building on January 10, 2013, and observed a package addressed to defendant—it is

not clear where in the building the package was located. "The package observed had a return

shipping label which listed a [']Ben Jones['] in Oakland[,] California."

¶9 The same day, a judge granted the search warrant application and police

conducted a search of defendant's apartment. The police recovered 1,011.99 grams of cannabis.

¶ 10 In January 2013, the State charged defendant as previously described.

¶ 11 A. Defendant's Motion To Suppress

¶ 12 In April 2013, defendant filed a motion to suppress, arguing the warrantless use of

a drug-detection dog to sniff the entrance to her apartment was a violation of the fourth

amendment (U.S. Const., amend. IV) as held in Jardines.

¶ 13 In October 2013, the trial court held a hearing on defendant's motion to suppress.

The evidence presented is summarized above. Defendant argued Jardines is not limited to those

individuals who live in a single-family residence, because the opinion did not include this

information. Rather, all "we know [is] that the entrance to [Jardines'] home was regarded as part

of his home." Because Jardines protects against a warrantless dog sniff of a home's entrance, the

use of a drug-detection dog to sniff defendant's apartment's door violated the fourth amendment.

The State argued Jardines should not be applied because there is a distinction between a single-

family residence and a multiunit dwelling. Residents in a multiunit dwelling have a lower

reasonable expectation of privacy because of an apartment building's layout and "any resident in

that entire apartment building could walk up to [a]partment [No.] 10." The State argued this

court's decision in People v. Trull, 64 Ill. App. 3d 385, 380 N.E.2d 1169 (1978), which held the

common entries and hallways of a locked apartment building were protected by the fourth

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amendment, relied on federal case law which had been abandoned and therefore should not be

followed.

¶ 14 Immediately after the hearing, the trial court found the police officers acted in

objective good faith on the law as it existed at the time of the search, which was before Jardines

was decided, and denied the motion to suppress.

¶ 15 B. Defendant's Motion To Reconsider

¶ 16 In October 2013, defendant filed a motion to reconsider, arguing the trial court

misapprehended the retroactive applicability of Jardines. Defendant argued Jardines applied to

this case because under Griffith v. Kentucky, 479 U.S. 314 (1987), a fourth amendment case

applies to all cases that were not final at the time the United States Supreme Court decision was

rendered. She also argued this case was substantially similar to the facts in McClintock v. State,

405 S.W.3d 277, 284 (Tex. App. 2013), which held the landing outside the defendant's apartment

was part of the apartment's curtilage and, consistent with Jardines, the police conducted a search

when the they used a drug-detection dog to investigate defendant's apartment from within the

curtilage.

¶ 17 At the hearing on defendant's motion to reconsider, the State conceded Jardines

retroactively applied to this case but argued it did not apply to the facts of this case. The State

also argued the officers could have acted in good-faith reliance upon the then-existing precedent

in using a drug-detection dog to sniff the apartment door, and the information contained in the

warrant application, without the dog sniff, amounted to probable cause.

¶ 18 C. The Trial Court's Ruling

¶ 19 In December 2013, the trial court issued a written order granting defendant's

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motion to suppress. The court found Trull had not been overturned and was controlling

authority. The court noted the dissent in Jardines agreed there is no license for a visitor to come

to the front door in the middle of the night without an express invitation. See Jardines, 569 U.S.

at ___, 133 S. Ct. at 1422 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer,

JJ.). It also noted the warrant application erroneously stated the canine sweep occurred on

January 10, 2012, and was sworn to with the incorrect date. The court concluded, "The dog sniff

of Defendant's apartment door, located within a locked apartment building, at 3:20 a.m. on

January10, 2013, violated Defendant's Fourth Amendment rights." It also found the good-faith

exception did not apply and probable cause was not established if the paragraphs pertaining to

the dog sniff were excised from the search warrant application.

¶ 20 In December 2013, the State filed a certificate of impairment with the trial court.

See Ill. S. Ct. R. 604(a) (eff. Feb. 6, 2013).

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 The State argues the trial court erred in granting defendant's motion to suppress.

It asserts Jardines does not apply to this case as there was no invasion of the curtilage and

defendant did not have a reasonable expectation of privacy in the apartment building's common

areas. In the event we conclude Jardines applies to this case, the State argues the evidence

obtained pursuant to the search warrant should not be suppressed because the officers were

acting in good-faith reliance upon the law as it existed prior to Jardines, and the evidence seized

pursuant to a search warrant may be admitted if, apart from the dog sniff, the lawfully obtained

information contained in the warrant amounted to probable cause.

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¶ 24 A. Standard of Review

¶ 25 When reviewing a trial court's decision regarding a motion to suppress, the

reviewing court applies a two-part standard of review. People v. Cregan, 2014 IL 113600, ¶ 22,

10 N.E.3d 1196. The reviewing court gives great deference to the trial court's factual findings

and will reverse those findings only if they are against the manifest weight of the evidence. Id.

The trial court's legal ruling on whether the evidence should be suppressed is reviewed de novo.

Id. The parties do not dispute the trial court's factual findings and we review the court's legal

ruling de novo.

¶ 26 B. The Fourth Amendment

¶ 27 The fourth amendment to the United States Constitution prohibits unreasonable

searches and seizures, which violate the "right of the people to be secure in their persons, houses,

papers, and effects." U.S. Const., amend. IV.

¶ 28 C. Florida v. Jardines

¶ 29 In Jardines, the United States Supreme Court considered whether the use of a

drug-detection dog on a porch "to investigate the contents of the home" constituted a search

within the meaning of the fourth amendment. Jardines, 569 U.S. at ___, 133 S. Ct. at 1413.

There, the Miami-Dade police received an unverified tip marijuana was being grown in Jardines'

home. Id. at ___, 133 S. Ct. at 1413. A month later, the police went to Jardines' home with a

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

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

and received a warrant to search the residence. When the warrant was executed, the police

discovered marijuana plants. Id. at ___, 133 S. Ct. at 1413.

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¶ 30 The Supreme Court began its analysis by emphasizing the fourth amendment

establishes:

"a simple baseline, one that for much of our history formed the

exclusive basis for its protections: When 'the Government obtains

information by physically intruding' on persons, houses, papers, or

effects, 'a "search" within the original meaning of the Fourth

Amendment' has 'undoubtedly occurred.' " Jardines, 569 U.S. at

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

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

The Supreme Court's decision in Katz v. United States, 389 U.S. 347 (1967), which held property

rights are not the sole measure of the fourth amendment's protections, may add to this baseline

but it does not subtract from it. Jardines, 569 U.S. at ___, 133 S. Ct. at 1414.

¶ 31 The Jardines Court first considered whether the police intruded upon a

constitutionally protected area. The fourth amendment does not prevent all investigations

conducted on private property, "[b]ut when it comes to the Fourth Amendment, the home is first

among equals." Id. at ___, 133 S. Ct. at 1414. At the fourth amendment's core, "stands 'the right

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

intrusion.' " Id. at ___, 133 S. Ct. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511

(1961)). For fourth amendment purposes, the home includes "the area 'immediately surrounding

and associated with the home,' " an area referred to as the curtilage. Id. at ___, 133 S. Ct. at 1414

(quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). "This area around the home is

'intimately linked to the home, both physically and psychologically,' and is where 'privacy

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expectations are most heightened.' " Id. at ___, 133 S. Ct. at 1415 (quoting California v.

Ciraolo, 476 U.S. 207, 213 (1986)). The Court found there was "no doubt" the police officers

entered the curtilage of Jardines' 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.' " Id. at ___, 133 S. Ct. at

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

¶ 32 Finding the police officers had intruded upon a constitutionally protected area, the

Supreme Court turned to whether the officers had a license to enter this area with a drug-

detection dog. The Court recognized police 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" when he or she steps off the public thoroughfare. Id. at ___, 133 S. Ct. at 1415

(quoting Ciraolo, 476 U.S. at 213). There is an implicit license for individuals, including the

police, "to approach the home by the front path, knock promptly, wait briefly to be received, and

then (absent invitation to linger longer) leave." Id. at ___, 133 S. Ct. at 1415. "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.' " Id. at ___, 133 S. Ct. at 1416 (quoting Kentucky v.

King, 563 U.S. ___, ___, 131 S. Ct. 1849, 1862 (2011)). However, there is no customary

invitation for the police to introduce "a trained police dog to explore the area around the home in

hopes of discovering incriminating evidence." Id. at ___, 133 S. Ct. at 1416. The Court

explained, to find a visitor "marching his bloodhound into the garden before saying hello and

asking permission, would inspire most of us to—well, call the police." Id. at ___, 133 S. Ct. at

1416.

¶ 33 In closing, the Court noted it did not need to decide whether the officer's

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investigation violated Jardines' reasonable expectation of privacy under Katz. "The Katz

reasonable-expectations test 'has been added to, not substituted for,' the traditional property-

based understanding of the Fourth Amendment, and so is unnecessary to consider when the

government gains evidence by physically intruding on constitutionally protected areas."

(Emphases in original.) Id. at ___, 133 S. Ct. at 1417 (quoting Jones, 565 U.S. at ___, 132 S. Ct.

at 951-52). Nor did it need to consider whether Kyllo v. United States, 533 U.S. 27 (2001),

applied because "when the government uses a physical intrusion to explore details of the home

(including its curtilage), the antiquity of the tools that they bring along is irrelevant." Jardines,

569 U.S. at ___, 133 S. Ct. at 1417.

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

majority opinion but wrote to express the same result would have been reached by looking at

Jardines' privacy interests under Katz. Id. at ___, 133 S. Ct. at 1418 (Kagan, J., concurring,

joined by Ginsburg and Sotomayor, JJ.). Property concepts and privacy concepts will "align" in

cases involving a search of a home as "[t]he law of property 'naturally enough influence[s]' our

'shared social expectations' of what places should be free from governmental incursions." Id. at

___, 133 S. Ct. at 1419 (quoting Georgia v. Randolph, 547 U.S. 103, 111 (2006)). If this case

had been decided on privacy grounds, then it would have been resolved by Kyllo. In Kyllo the

Court highlighted its "intention to draw both a 'firm' and a 'bright' line at 'the entrance to the

house,' " and announced the rule: " 'Where, as here, the Government uses a device that is not in

general public use, to explore details of the home that would previously have been unknowable

without physical intrusion, the surveillance is a "search" and is presumptively unreasonable

without a warrant.' " Id. at ___, 133 S. Ct. at 1419 (quoting Kyllo, 533 U.S. at 40). Justice

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Kagan concluded the police's use of a drug-detection dog—a device not in general public use—

to examine Jardines' home violated his expectation of privacy in his home. Id. at ___, 133 S. Ct.

at 1420.

¶ 35 D. Jardines' Application to This Case

¶ 36 1. The State's Argument Fails To Engage Jardines' Property-Based Analysis

¶ 37 In its initial brief, the State summarily stated "[t]here is simply no invasion of the

curtilage when the police entered [the] common area of the apartment building" and immediately

proceeded to argue defendant did not have a reasonable expectation of privacy in the common

areas of the apartment building. This court then specifically requested the State to analyze this

case using Jardines' property-based analysis. The State did not and responded by asserting

Jardines "clearly demonstrated" the reasonable-expectation-of-privacy test is "to be used in

determining the propriety of police conduct in approaching an individual's home." It is

disingenuous for the State to argue Jardines does not apply to this case and ignore the rationale

used in the majority opinion and focus its argument on the reasonable-expectation-of-privacy

analysis used in Justice Kagan's concurrence. The reasonable-expectation-of-privacy test adds to

the fourth amendment's baseline property-based protections; it "does not subtract anything from

the Amendment's protections 'when the Government does engage in [a] physical intrusion of a

constitutionally protected area.' " (Emphasis in original.) Id. at ___, 133 S. Ct. at 1414 (quoting

United States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring)). See also Jones,

565 U.S. at ___, 132 S. Ct. at 951 (noting "Katz did not narrow the Fourth Amendment's scope").

In determining whether Jardines applies to this case, we start with the Jardines rationale before

determining whether the reasonable-expectation-of-privacy test applies.

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¶ 38 2. Jardines' Property-Based Rationale Applies

¶ 39 The State argues Jardines is distinguishable because defendant resides in a multi-

unit apartment building and not a single-family residence. The Supreme Court has generally

"eschewed" bright-line rules when it comes to the fourth amendment (Ohio v. Robinette, 519

U.S. 33, 39 (1996)) and the State's argument the Court developed such a bright-line rule in

Jardines is unpersuasive.

¶ 40 Jardines contains practically no information about the type, layout, or ownership

of Jardines' residence. See Jardines, 569 U.S. at ___, 133 S. Ct. at 1413. Despite this dearth of

information about Jardines' residence, the State argues Jardines is restricted to a single-family

residence. The State does not provide a citation to support its contention Jardines' residence was

a single-family residence. Our review has found no mention of Jardines' residence as a single-

family residence. The lack of information about Jardines' residence undermines the State's

attempts to draw a distinction between a single-family residence and a multiunit apartment

building.

¶ 41 The State has not identified a single Supreme Court case limiting the fourth

amendment's application on the basis of the type of residence involved. Our research shows the

Supreme Court has encountered various types of residences in its fourth amendment

jurisprudence. See Silverman, 365 U.S. at 506 (row house); Payton v. New York, 445 U.S. 573,

576 (1980) (apartment); Minnesota v. Olson, 495 U.S. 91, 94 (1990) (duplex); Soldal v. Cook

County, Illinois, 506 U.S. 56, 58 (1992) (mobile home); King, 563 U.S. at ___, 131 S. Ct. at

1854 (apartment building); Fernandez v. California, 571 U.S. ___, ___, 134 S. Ct. 1126, 1130

(2014) (apartment). A review of the Supreme Court's fourth amendment jurisprudence shows

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the Court often uses the generic term "home" when discussing the scope of the fourth

amendment's protections. See Kyllo, 533 U.S. at 31 ("With few exceptions, the question whether

a warrantless search of a home is reasonable and hence constitutional must be answered no.");

Randolph, 547 U.S. at 115 ("Since we hold to the 'centuries-old principle of respect for the

privacy of the home,' Wilson v. Layne, 526 U.S. 603, 610 (1999), 'it is beyond dispute that the

home is entitled to special protection as the center of the private lives of our people,' Minnesota

v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring)."); Fernandez, 571 U.S. at ___, 134

S. Ct. at 1132 ("Our cases establish that a warrant is generally required for a search of a home

***."). See also People v. McNeal, 175 Ill. 2d 335, 344, 677 N.E.2d 841, 846 (1997) ("The

physical entry of the home is the chief evil against which the fourth amendment is directed.").

This can been seen in Payton, a case involving an apartment, where the Court stated "[i]t is a

'basic principle of Fourth Amendment law' that searches and seizures inside a home without a

warrant are presumptively unreasonable" (Payton, 445 U.S. at 586) and announced the fourth

amendment protects individuals in a variety of settings, but "[i]n none is the zone of privacy

more clearly defined than when bounded by the unambiguous physical dimensions of an

individual's home—a zone that finds its roots in clear and specific constitutional terms" (id. at

589).

¶ 42 In Jardines, the Court again referred to the generic "home" when it declared, "the

home is first among equals" when it comes to the fourth amendment. Jardines, 569 U.S. at ___,

133 S. Ct. at 1414. The reasoning behind the Court's use of a generic term when discussing the

scope of the fourth amendment is obvious: homes come in different shapes, sizes, and forms.

Some homes afford greater privacy from prying eyes (and noses) than others. One individual

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may live on a vast estate secluded from the public while another may live in a high-rise

apartment building in the middle of a busy city. The fourth amendment protects both

individuals' right " 'to retreat into his own home and there be free from unreasonable

governmental intrusion.' " Id. at ___, 133 S. Ct. at 1414 (quoting Silverman, 365 U.S. at 511).

¶ 43 The fourth amendment protects more than the physical dimensions of a house—it

also protects the area " 'immediately surrounding and associated with the home.' " Id. at ___, 133

S. Ct. at 1414 (quoting Oliver, 466 U.S. at 180). This area is referred to as the curtilage. The

boundaries of the curtilage are easily understood from daily experience and include all the

home's physical branches. Id. at ___, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S. at 182 n.12).

This court specifically requested the State to analyze this case using Jardines' property-based

rationale, i.e., elaborate on its assertion there was no invasion of the curtilage. The State

persisted in its argument there was no violation of defendant's property rights and asserted "it is

well established that apartment dwellers have no reasonable expectation of privacy as to the

common areas of the apartment building."

¶ 44 This is not the appropriate analysis for determining whether the police conduct

has occurred within the curtilage. See United States v. Dunn, 480 U.S. 294, 301 (1987)

(providing four factors to consider when analyzing whether a particular area is part of the

curtilage). In Jardines, there was no question the officers entered the curtilage because the front

porch is a "classic exemplar" of the curtilage. Jardines, 569 U.S. at ___, 133 S. Ct. at 1415.

Defendant does not have a front porch outside her apartment door. She has a landing. This

distinction is unimportant and we need not decide whether this landing is included within

defendant's apartment's curtilage. Compare McClintock, 405 S.W.3d at 284 (concluding the

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landing outside the apartment's front door was part of the curtilage), and State v. Nguyen, 2013

ND 252, ¶ 13, 841 N.W.2d 676 (concluding a common hallway was not within the curtilage).

The answer is much simpler. The plain holding of Jardines applies to "[t]he government's use of

trained police dogs to investigate the home and its immediate surroundings." Jardines, 569 U.S.

at ___, 133 S. Ct. at 1417-18. A home's front door is part of the "home and its immediate

surroundings." See Payton, 445 U.S. at 590 (stating the fourth amendment has "drawn a firm

line at the entrance to the house," one which cannot be reasonably crossed without a warrant);

United States v. Santana, 427 U.S. 38, 42 (1976) ("under the common law of property the

threshold of one's dwelling is 'private' ").

¶ 45 In Jardines, the Court noted an individual's right to retreat within his or her home

would have "little practical value" if the police "could stand in a home's porch or side garden and

trawl for evidence with impunity" and this right "would be significantly diminished if the police

could enter a man's property to observe his repose from just outside the front window."

Jardines, 569 U.S. at ___, 133 S. Ct. at 1414. It reasons that if the police cannot stand outside

the front window and trawl for evidence about the contents of the home, then they cannot stand

immediately outside the front door and do the same thing. When the police stood at the entrance

to defendant's apartment with a drug-detection dog, their investigation took place in a

constitutionally protected area. Further supporting this conclusion is the fact the entrances to

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

apartment building and the officers were admitted by a resident or another officer. The entrance

to defendant's home was not located on a public thoroughfare but rather behind a locked door.

This is not a circumstance where the police and drug-detection dog were walking down a public

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sidewalk or corridor and the dog alerted to the presence of drugs. See id. at ___, 133 S. Ct. at

1426 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer, JJ.). The question

now turns to whether the police could have approached defendant's front door with a drug-

detection dog at 3:20 a.m.

¶ 46 In Jardines, the Supreme Court noted there is an implicit invitation for a "visitor

to approach the home by the front path, knock promptly, wait briefly to be received, and then

(absent invitation to linger longer) leave." Id. at ___, 133 S. Ct. at 1415. There is no customary

invitation for someone—including a police officer—to "march[] his bloodhound" up to

someone's home to "engage in canine forensic investigation" and use a drug-detection dog "to

explore the area around the home in hopes of discovering incriminating evidence." Id. at ___,

133 S. Ct. at 1416. Nor is there an implicit invitation for "a visitor [to] come to the front door in

the middle of the night." Id. at ___, 133 S. Ct. at 1422 (Alito, J., dissenting, joined by Roberts,

C.J., and Kennedy and Breyer, JJ.); id. at ___ n.3, 133 S. Ct. at 1416 n.3 (agreeing). In this case,

the police not only approached defendant's front door with a drug-detection dog to engage in an

investigation of her home, they did so in the middle of the night. As Jardines makes clear, there

is no implicit invitation for the police to do this and the officers in this case could not approach

defendant's front door, absent a warrant, with a drug-detection dog to conduct a search of the

contents her home.

¶ 47 3. The State's Argument Defendant Did Not Have a Reasonable Expectation of
Privacy in the Apartment Building's Common Areas

¶ 48 The State argues Jardines does not apply because defendant could not have a

reasonable expectation of privacy in her apartment building's common areas. It contends

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Jardines "clearly demonstrated" the reasonable-expectation-of-privacy test from Katz is to be

used in determining the "propriety of police conduct in approaching an individual's home." As

discussed above, Jardines reiterated Katz's reasonable-expectation-of-privacy test adds to the

fourth amendment's property-based protections, it does not subtract from those protections.

¶ 49 In this case, defendant argues the use of a drug-detection dog to sniff her front

door violated the fourth amendment as held in Jardines. We have used the property-based

analysis used in Jardines to resolve this case. We need not consider whether defendant had a

reasonable expectation of privacy in the common areas of the apartment building because this

question is "unnecessary to consider when the government gains evidence by physically

intruding on constitutionally protected areas." Jardines, 569 U.S. at ___, 133 S. Ct. at 1417.

¶ 50 E. Does Jardines Require Suppression?

¶ 51 The State concedes Jardines applies retroactively to defendant's case as it was not

yet final at the time Jardines was decided (see Griffith, 479 U.S. at 328), but argues suppression

of the evidence recovered pursuant to the search warrant is not required. The State asserts the

good-faith exception to the exclusionary rule applies because the police acted in good-faith

reliance upon established law existing at the time of the search. It also argues the evidence

seized pursuant to the search warrant may still be admitted because the lawfully obtained

information in the warrant application amounted to probable cause.

¶ 52 1. The Exclusionary Rule, Generally

¶ 53 Under the exclusionary rule, courts will generally not admit evidence obtained in

violation of the fourth amendment. People v. Sutherland, 223 Ill. 2d 187, 227, 860 N.E.2d 178,

208 (2006). Under the fruit-of-the-poisonous-tree doctrine, which is an outgrowth of the

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exclusionary rule, "the fourth amendment violation is deemed the 'poisonous tree,' and any

evidence obtained by exploiting that violation is subject to suppression as the 'fruit' of that

poisonous tree." People v. Henderson, 2013 IL 114040, ¶ 33, 989 N.E.2d 192.

¶ 54 "[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).

¶ 55 2. The State's Good-Faith-Exception Argument

¶ 56 The United States Supreme Court has recognized an exception to the exclusionary

rule where the police acted with an objective, good-faith reliance on binding precedent. Davis v.

United States, 564 U.S. ___, ___, 131 S. Ct. 2419, 2429 (2011). In Davis, the police officers,

relying on binding federal precedent, conducted a search of the defendant's vehicle after he had

been arrested. In Arizona v. Gant, 556 U.S. 332 (2009), a case decided after the vehicle search in

Davis, the Supreme Court held such a search violated the fourth amendment. In Davis, the Court

held "[a]n officer who conducts a search in reliance on binding appellate precedent does no more

than ' "ac[t] as a reasonable officer would and should act" ' under the circumstances." Davis, 564

U.S. at ___, 131 S. Ct. at 2429 (quoting United States v. Leon, 468 U.S. 897, 920 (1984), quoting

Stone v. Powell, 428 U.S. 465, 539-40 (1976) (White, J., dissenting)).

¶ 57 The State relies on United States v. Place, 462 U.S. 696 (1983), and Illinois v.

Caballes, 543 U.S. 405 (2005), to assert the "general rule" at the time of the search was "the use

of a sniffer dog did not constitute a search and did not invade privacy interests of the subject of

the search." In Place, the Supreme Court held the use of a drug-detection dog to sniff an

individual's luggage at an airport was not a search within the meaning of the fourth amendment.

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Place, 462 U.S. at 707. In Caballes, the Supreme Court considered the use of a drug-detection

dog during a traffic stop and held the "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). Place and Caballes are

distinguishable as those cases did not involve the use of a drug-detection dog to sniff a home. As

discussed in Jardines, the use of a drug-detection dog to sniff a home in the hopes of discovering

incriminating evidence presents a very different issue. Jardines, 569 U.S. at ___, 133 S. Ct. at

1416. Further, Place and Caballes did not specifically authorize the officers' conduct. See

generally United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996) ("Good faith is not a magic

lamp for police officers to rub whenever they find themselves in trouble.").

¶ 58 The State also relies on Smith and Lyles to assert Illinois precedent established "an

individual did not have any expectation of privacy to common areas of an apartment building."

We do not read Smith for the broad proposition an individual does not have any expectation of

privacy in the common areas of an apartment building. In Smith, the police officers went to the

defendant's apartment building, opened the building's unlocked rear door, and walked to a

common-area hallway. People v. Smith, 152 Ill. 2d 229, 243, 604 N.E.2d 858, 863 (1992).

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

were investigating. Id. Our supreme court held the officers' overhearing the conversation did

not constitute a search under the fourth amendment. Id. at 245-46, 604 N.E.2d at 864. Again,

Smith did not involve the use of a drug-detection dog to sniff an individual's front door but rather

concerned an individual's reasonable expectation of privacy in things overheard by the police

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while standing in a common area. As discussed above, Lyles, which is not binding in the Fourth

District, did not involve the use of a drug-detection dog.

¶ 59 This court's decision in Trull was binding appellate precedent relating to the

officer's conduct. In Trull, this court "discern[ed] a marked difference between an individual's

expectation of privacy in a locked apartment building as compared to an unlocked one" and held

the fourth amendment protected against the police's entry into an apartment building's common

hallways. Trull, 64 Ill. App. 3d at 389, 380 N.E.2d at 1173. It is undisputed defendant's

apartment building was locked and the officer with the drug-detection dog was admitted by

another police officer. This conduct was not authorized by Trull.

¶ 60 As there was no binding appellate precedent specifically authorizing the officers'

conduct (see Davis, 564 U.S. at ___, 131 S. Ct. at 2429), the exception to the exclusionary rule

announced in Davis is not applicable to this case.

¶ 61 3. The State's Argument the Evidence Seized Pursuant to the
Search Warrant Is Not Subject to the Exclusionary Rule

¶ 62 The State argues the use of the drug-detection dog did not invalidate the search

warrant as evidence seized pursuant to a search warrant may be admitted if, apart from the

tainted information, the lawfully obtained information contained in the warrant amounted to

probable cause. The State cites People v. Free, 94 Ill. 2d 378, 447 N.E.2d 218 (1983), in support

of this proposition.

¶ 63 The search warrant in this case was tainted by the illegal police conduct—the

warrantless use of a drug-detection dog to sniff defendant's apartment's front door at 3:20 a.m.

The State would have us overlook this taint if the search warrant contained probable cause

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without the tainted information. The trial court here found if paragraphs 9 and 10 (the

paragraphs regarding the dog sniff) were excised from the affidavit for a search warrant, the

remaining facts pleaded were insufficient to establish probable cause for the issuance of the

search warrant. We agree.

¶ 64 Absent the dog sniff, the evidence relied upon in the complaint and affidavit for a

search warrant is scanty at best. We cannot determine from the record the specific time on

January 10 when Mecum observed a package addressed to defendant with a return address

shipping label from an individual in California. Facebook pages showing images favoring the

legalization of marijuana and images of marijuana and currency coupled with defendant's prior

police contacts for possession are not sufficient to establish probable cause for a search warrant

of defendant's home.

¶ 65 We conclude the warrantless use of a drug detection dog to sniff defendant's

apartment door at 3:20 a.m. affected the judge's decision to issue the search warrant, and the

evidence obtained pursuant to the search warrant is fruit of the poisonous tree and the

exclusionary rule applies.

¶ 66 III. CONCLUSION

¶ 67 The trial court's judgment is affirmed.

¶ 68 Affirmed.

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