2015 IL App (1st) 140093
THIRD DIVISION
March 31, 2015
No. 1-14-0093
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) 11 CR 13619
)
MILTRON BROWN, ) Honorable
) Noreen Valeria Love,
Defendant-Appellee. ) Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.
OPINION
¶1 Defendant-appellee Miltron Brown was indicted on multiple counts related to the
possession of both a controlled substance and a weapon. Brown's motion to quash the search
warrant and suppress evidence was granted. On appeal, the State contends that the trial court
erred in granting the motion to quash the search warrant because the police officers'
execution of the search warrant was protected under the good-faith exception to the
exclusionary rule. We disagree and affirm the judgment of the circuit court of Cook County.
¶2 BACKGROUND
¶3 Brown filed two motions, one to quash his arrest and one to quash the search warrant.
Separate suppression hearings were held on the two motions. The court denied Brown's
motion to quash his arrest. At the hearing on the motion to quash the search warrant, Brown
adopted the evidence previously presented at the hearing on the motion to quash his arrest.
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¶4 Evidence adduced at the two suppression hearings established that in the afternoon hours
of July 25, 2011, Officer James Lazansky conducted surveillance on a specific unit in the
apartment building at 7300 Ogden Avenue in Riverside, Illinois. The surveillance was in
response to complaints regarding possible narcotics activity in unit 1F, the first-floor unit
toward the front of the building. The complaints were general in nature and did not include a
name or a description of an individual, but simply a description of the unit and unspecified
suspected narcotics activity.
¶5 Officer Lazansky observed Brown exit unit 1F from a rear door that was only connected
to that unit and get into a tan Buick. While running a check on the vehicle registration,
Officer Lazansky followed Brown to a nearby restaurant. After Brown left the restaurant and
was returning to the apartment, Officer Lazansky received information that the vehicle was
registered to Brown and that his driver's license had been suspended. Officer Lazansky
activated his emergency lights and pulled Brown over in the driveway of the apartment
building.
¶6 While Officer Lazansky was standing outside the vehicle talking to Brown, he saw three
pills in a clear plastic bag in the handle of the driver's door which he suspected were ecstasy.
Brown was arrested and taken into custody. Officer Lazansky checked with the property
manager for the apartment building and learned that unit 1F was leased to Brown.
¶7 Later that evening, Officer Lazansky returned to the apartment building to meet Officer
Galarza and Galarza's certified canine. Unit 1F had two entrances, a back entrance that only
led that unit and a front entrance that was accessed through a common entry door that also
allowed access to other units. There were four mail slots in the common entry door.
Although a key was required to open the front entrance door, it was not pulled all the way
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shut when the officers approached the building and they were able to gain access to the
common area.
¶8 Officer Galarza's canine gave a positive alert at both the front and back doors of unit 1F,
indicating the presence of narcotics inside the unit. Officer Lazansky then returned to the
police station and prepared an affidavit for a search warrant. The warrant was reviewed and
approved by an assistant State's Attorney and Officer Lazansky then contacted a judge to
review the warrant and affidavit. The judge later approved the search warrant.
¶9 The trial court noted that there was nothing for the judge to rely on in the complaint for
the search warrant except the canine sniff which, according to Florida v. Jardines, 569 U.S.
___, ___, 133 S. Ct. 1409, 1414-15 (2013), was unconstitutional. The court explained that
without the canine sniff, there was no probable cause to support the warrant and "[i]f there is
no probable cause to support the warrant, then police officers cannot use good faith to rely
upon that warrant." The motion to quash the search warrant was granted. The State timely
filed a certificate of substantial impairment and a notice of appeal. See Ill. S. Ct. R.
604(a)(1) (eff. Feb. 6, 2013).
¶ 10 ANALYSIS
¶ 11 Brown has not filed a brief on appeal despite multiple extensions and we have determined
to resolve this appeal on the record and the State's brief alone. See First Capitol Mortgage
Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (a reviewing court should
decide the merits of the appeal where the record is simple and the claimed errors are such
that the court can easily decide them without the aid of an appellee's brief).
¶ 12 When reviewing a trial court's ruling on a motion to quash and suppress, we defer to the
trial court's factual findings and those findings will not be reversed unless they are against the
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manifest weight of the evidence. People v. Close, 238 Ill. 2d 497, 504 (2010). However, we
review de novo the ultimate decision to grant or deny the motion. Id. Where no dispute
exists as to the underlying facts, our review proceeds de novo. Id.
¶ 13 Here, there is no factual dispute. Indeed, the State acknowledges that the Supreme Court
held in Jardines that a warrantless canine sniff within the curtilage of a house, which enjoys
the same constitutional protection as the house itself, violates the fourth amendment's
prohibition against unreasonable searches and seizures. Jardines, 569 U.S. at ___, 133 S. Ct.
at 1414-15. Rather, the State contends on appeal that because the Jardines decision was not
issued until after the warrant in this case was obtained and executed, the execution of the
search warrant was protected under the good-faith exception to the exclusionary rule.
¶ 14 As the trial court correctly noted, without the warrantless canine sniff, the police had
nothing to establish the probable cause required for a search warrant. Officer Lazansky
testified that the department received "complaints" of narcotics activity at a specific
apartment, but no information was provided regarding the identity or reliability of the
complainants and the complainants did not provide a name or description of the person
allegedly engaging in unspecified narcotics activity. The police conducted surveillance of
the apartment on one afternoon, during which time nobody arrived at the apartment and the
only person seen leaving the apartment was Brown. After pulling Brown over for a traffic
violation, Officer Lazansky saw a plastic bag with what appeared to be three ecstasy pills in
the handle of the driver's side door. Nothing in these facts supports the requisite probable
cause to obtain a search warrant for Brown's apartment. Therefore, the trial court's order
granting the motion to suppress can be reversed only if the good-faith exception to the
exclusionary rule applies.
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¶ 15 Under the exclusionary rule, evidence that is gathered by the police in violation of the
fourth amendment is inadmissible. People v. Sutherland, 223 Ill. 2d 187, 227 (2006). In
United States v. Leon, 468 U.S. 897, 919-22 (1984), the Supreme Court held that the
exclusionary rule does not bar evidence obtained by a police officer who reasonably relies, in
objective good faith, on a search warrant issued by a neutral and detached magistrate but that
is later found to be unsupported by probable cause. The Leon good-faith exception was
adopted by our supreme court in People v. Stewart, 104 Ill. 2d 463, 477 (1984), and codified
at section 114-12 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-12(b)(1),
(b)(2) (West 2012)).
¶ 16 The State contends that under existing case law, "dog sniffs were entirely lawful in
Illinois" prior to the Jardines decision; therefore, the State argues the officer reasonably
relied on this precedent and the good-faith exception should apply. In support of this
argument, the State cites the Supreme Court's extension of the good-faith exception in Davis
v. United States, ___ U.S. ___, ___, 131 S. Ct. 2419, 2429 (2011), to reliance on binding
appellate precedent that specifically authorizes a particular police practice.
¶ 17 We reject the State's argument for two reasons. First, even if Illinois were to adopt the
Davis extension of the good-faith exception, there is no precedent in Illinois allowing
warrantless dog sniffs within the curtilage of a home. Second, Illinois Supreme Court
precedent indicates that our supreme court is not likely to adopt the Davis extension of the
good-faith exception in any event.
¶ 18 In Davis, the search at issue (of a vehicle's passenger compartment incident to a recent
occupant's arrest) was explicitly authorized by binding Eleventh Circuit precedent prior to
the Supreme Court's holding that such a search was unconstitutional in Arizona v. Gant, 556
U.S. 332 (2009). Davis, ___ U.S. at ___, 131 S. Ct. at 2428. In concurring with the
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majority, Justice Sotomayor noted that Davis did not present "the markedly different question
whether the exclusionary rule applies when the law governing the constitutionality of a
particular search is unsettled." Davis, ___ U.S. at ___, 131 S. Ct. at 2435 (Sotomayor, J.,
concurring).
¶ 19 This court has considered whether the good-faith exception to the exclusionary rule
applies to unconstitutional canine sniffs that occurred prior to Jardines in light of the
Supreme Court's holding in Davis, and concluded that no binding appellate precedent
authorized the officers' conduct and, therefore, the good-faith exception did not apply.
People v. Burns, 2015 IL App (4th) 140006, ¶¶ 56-57, 60. We agree with the reasoning in
Burns and also find instructive two federal appellate court decisions that have analyzed
binding appellate precedent to determine whether the good-faith exception should apply,
because those courts considered the circumstances surrounding the canine sniff in making
such a determination. Compare United States v. Givens, 763 F.3d 987, 992 (8th Cir. 2014)
(concluding the good-faith exception to the exclusionary rule applied because existing Eighth
Circuit precedent determined that the use of a dog in the hallway of an apartment building to
sniff around the door of an apartment did not violate the fourth amendment), with United
States v. Hill, 776 F.3d 243, 250-51 (4th Cir. 2015) (concluding the good-faith exception to
the exclusionary rule did not apply to the dog sniff of an apartment because existing Fourth
Circuit precedent involved the sniff of a vehicle during a traffic stop and the sniff of a
passenger train's sleeping compartment but no precedent existed involving a dog sniff of a
home).
¶ 20 The Illinois precedent relied on by the State does not involve canine sniffs within the
curtilage of a home. See People v. Bartelt, 241 Ill. 2d 217, 231 (2011) (canine sniff during a
traffic stop); People v. Driggers, 222 Ill. 2d 65, 72-73 (2006) (same); People v. McPhee, 256
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Ill. App. 3d 102, 112 (1993) (dog sniff of envelope); People v. Forrest, 172 Ill. App. 3d 385,
391-92 (1988) (dog sniff of airline luggage). Likewise, the cases cited as federal precedent
also do not involve canine sniffs within the curtilage of a home. See Illinois v. Caballes, 543
U.S. 405, 408-09 (2005) (canine sniff during a traffic stop); United States v. Place, 462 U.S.
696, 707 (1983) (dog sniff of luggage in a public place). Therefore, we do not agree with the
State that dog sniffs – no matter where conducted – were "entirely lawful" in Illinois prior to
Jardines.
¶ 21 We further reject the idea that it is reasonable to apply the same rules that govern
searches of vehicles during traffic stops or luggage in public places to a search within the
curtilage of a home. As the Supreme Court noted: "At the [Fourth] Amendment's very core
stands the right of a man to retreat into his own home and there be free from unreasonable
government intrusion." (Internal quotation marks omitted.) Jardines, 569 U.S. at ___, 133
S. Ct. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). The curtilage
or area immediately surrounding and associated with the home is "intimately linked to the
home" and is where "privacy expectations are most heightened." (Internal quotation marks
omitted.) Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting California v. Ciraolo, 476
U.S. 207, 213 (1986)).
¶ 22 Thus, even if we could predict that Illinois would adopt the Davis good-faith exception,
there exists no binding appellate precedent in Illinois holding that canine sniffs within the
curtilage of a home were constitutional prior to Jardines. Consequently, the good-faith
exception does not apply and the trial court did not err in granting the motion to quash the
search warrant and suppress the evidence.
¶ 23 Even if we were to conclude that appellate precedent regarding canine sniffs of vehicles
during traffic stops and luggage in public places governed canine sniffs within the curtilage
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of the home, it is unlikely that our supreme court would adopt the Davis good-faith exception
in light of its refusal to adopt a previous Supreme Court extension of the good-faith
exception to the exclusionary rule that implicated the constitutional rights of Illinois citizens.
¶ 24 In Illinois v. Krull, 480 U.S. 340 (1987), the Supreme Court extended the good-faith
exception to statutes later declared unconstitutional. But in People v. Krueger, 175 Ill. 2d 60,
73-74 (1996), our supreme court declined to adopt the Krull extension of the good-faith
exception. In explaining that the adoption of the Krull extension for Illinois would be
incompatible with our state constitution, our supreme court stated: "We are not willing to
recognize an exception to our state exclusionary rule that will provide a grace period for
unconstitutional search and seizure legislation, during which time our citizens' prized
constitutional rights can be violated with impunity. We are particularly disturbed by the fact
that such a grace period could last for several years and affect large numbers of people. This
is simply too high a price for our citizens to pay." Id. at 75.
¶ 25 The supreme court later declined to extend the rationale in Krueger to anticipatory search
warrants that were held to be statutorily invalid rather than constitutionally invalid. People v.
Carlson, 185 Ill. 2d 546, 559 (1999). The court explained that such a situation did not
subject Illinois citizens to a grace period during which their constitutional rights could be
violated with impunity. Id.
¶ 26 In contrast, the supreme court refused to apply the good-faith exception to the
exclusionary rule where a statute was declared unconstitutional because it violated the single
subject rule, explaining that to do so would be to resurrect the amendment in question and
provide a grace period during which Illinois citizens would have been subject to
extraterritorial arrests without proper authorization. People v. Carrera, 203 Ill. 2d 1, 16
(2002). The majority reached this conclusion despite the dissent's point that the
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constitutional infirmity in the statute did not spring from a violation of the fourth amendment
or the defendant's rights under the Illinois Constitution. Id. at 22 (Garman, J., dissenting,
joined by Fitzgerald and Thomas, JJ.).
¶ 27 As the dissent noted in Carrera, the exclusionary rule applies in Illinois when
suppression of evidence would further the rule's purpose of deterring further police
misconduct or when giving effect to legislation that violates the fourth amendment or the
state constitution would permit the constitutional rights of Illinois citizens to be violated with
impunity. Id. Here, rather than giving effect to legislation that was later declared
unconstitutional, the issue is a search where the law governing the constitutionality of the
search was not settled and the search was later declared unconstitutional, the very situation
described in Justice Sotomayor's concurrence in Davis. What the State urges here is
expansion of the good-faith exception to the exclusionary rule based on an officer's belief
that appellate precedent could be extended to cover a search. Such a result would expand the
good-faith exception beyond recognition.
¶ 28 Moreover, the concerns underlying the decision in Krueger apply equally here where, if
the exception is applied, there is a grace period during which the constitutional rights of
Illinois citizens may be violated with impunity. In other words, applying the good-faith
exception to an unconstitutional warrantless dog sniff within the curtilage of the home that
occurred prior to the Jardines decision, even if binding appellate precedent allowed the
practice, would allow the police a grace period during which the constitutional rights of
Illinois citizens may be violated. We do not believe such an application comports with our
supreme court precedent.
¶ 29 CONCLUSION
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¶ 30 Because the good-faith exception to the exclusionary rule does not apply, the trial
court did not err in granting the motion to quash the search warrant and suppress the
evidence.
¶ 31 Affirmed.
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