Docket No. 108441.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
SAMUEL ABSHER, Appellee.
Opinion filed May 19, 2011.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
Following a stipulated bench trial, the circuit court of St. Clair
County convicted defendant, Samuel Absher, of unauthorized
possession of a controlled substance (720 ILCS 570/402(c) (West
2002)). The appellate court reversed. No. 5–04–0729 (unpublished
order under Supreme Court Rule 23). We granted the State’s petition
for leave to appeal and now reverse the judgment of the appellate
court.
I. BACKGROUND
On March 18, 2004, pursuant to a fully negotiated guilty plea,
defendant was convicted in the circuit court of St. Clair County of
retail theft. In exchange for his plea, defendant was placed on
probation for a period of two years. The agreement provided that
defendant was to serve the first year in accordance with St. Clair
County’s “Intensive Probation Supervision” program, followed by a
second year of “standard” probation. During the period of “intensive”
probation, defendant agreed to abide by a number of conditions in
addition to the general probation restrictions. The probation order
stated, in relevant part:
“9. *** [Y]ou shall further obey and comply with such
other reasonable rules and regulations as are defined in article
#10.
10. SPECIFIC RULES AND REGULATIONS OF
INTENSIVE PROBATION SUPERVISION:
***
(c) submit to searches of your person, residence,
papers, automobile and/or effects at any time such
requests are made by the Probation Officer, and consent to
the use of anything seized as evidence in Court
proceedings.”
On May 17, 2004, a St. Clair County probation department
officer–assisted by officers from the Belleville police
department–searched defendant’s residence pursuant to this probation
condition and discovered cocaine and marijuana. Defendant was
thereafter charged with one count of felony unauthorized possession
of a controlled substance (720 ILCS 570/402(c) (West 2002)).1
Prior to trial, defendant filed a motion to suppress the evidence
recovered from his residence. Defendant contended that although he
agreed to the suspicionless search condition contained in article 10(c)
of the probation order, the search nevertheless violated his right to
privacy in his residence because it was not based upon reasonable
suspicion and he had not consented to the officers’ entry.
At the suppression hearing, St. Clair County probation officer E.J.
Jarvis testified that on March 18, 2004, he met with defendant and
1
Defendant was also charged with one count of misdemeanor possession
of cannabis (720 ILCS 550/4(c) (West 2002)). This charge was later
dismissed by the State.
-2-
explained to him the conditions of his probation, including the
provision contained in article 10(c) allowing suspicionless searches of
defendant’s residence. Jarvis stated that defendant posed no questions
regarding the agreement as a whole nor with respect to any specific
provision prior to signing it. In relation to Jarvis’ testimony, defense
counsel stipulated that there was no dispute that defendant had
knowingly and voluntarily agreed to the intensive probation
conditions.
George Chester, the supervisor of the intensive probation program
at the St. Clair County probation department, testified to observing
defendant on May 17, 2004, when defendant visited the probation
office for a regularly scheduled meeting. Defendant’s conduct led
Chester to suspect that defendant may have been under the influence
of drugs. Based upon this observation, combined with a review of
defendant’s file, Chester believed that defendant “was in possession of
a controlled substance at his residence.” Pursuant to the search
condition contained in article 10(c) of defendant’s probation order,
Chester contacted the State’s Attorney’s office and obtained
authorization to search defendant’s home. Chester then arranged for
officers from the Belleville police department to accompany a
probation officer in executing the search of defendant’s residence later
that evening.
St. Clair County Probation Officer Burdett Rice testified that
Chester instructed him to search defendant’s home later that evening.
Rice and officers from the Belleville police department arrived at
defendant’s residence at approximately 10 p.m. Rice knocked on the
door and informed defendant that the officers were there to perform
a “routine search.” Defendant replied, “no, you are not tonight,” and
tried to close the door. Rice prevented defendant from closing the
door, and forced entry into defendant’s home. The officers secured
defendant and searched the premises, recovering a bag of crack
cocaine, a bag of marijuana, and several lighters and pipes.
In denying defendant’s suppression motion, the circuit court
observed that “defendant cannot, at his convenience and perhaps
because he is in an untenable position, make a declaration that he
revokes a term of his probation.” The terms of the probation
agreement, combined with the testimony of Chester, rendered the
search reasonable.
-3-
Thereafter, a stipulated bench trial was conducted, and defendant
was found guilty of unauthorized possession of a controlled substance
(720 ILCS 570/402(c) (West 2002)), and sentenced to two years’
imprisonment.
The appellate court reversed. No. 5–04–0729 (unpublished order
under Supreme Court Rule 23). Relying upon our decision in People
v. Lampitok, 207 Ill. 2d 231 (2003), which held that a search of a
probationer’s residence must be supported by reasonable suspicion,
the panel determined that the warrantless and suspicionless search of
defendant’s home was improper, and that the circuit court erred in
denying defendant’s suppression motion.
The State filed a petition for leave to appeal to this court.
Although we denied the State’s petition, we directed the appellate
court, pursuant to our supervisory authority, to vacate its order and
reconsider its ruling in light of People v. Wilson, 228 Ill. 2d 35 (2008),
which was issued during the pendency of this appeal and held that the
fourth amendment allows a suspicionless search of a parolee.2 The
appellate court again reversed the circuit court’s denial of defendant’s
suppression motion. No. 5–04–0729 (unpublished order under
Supreme Court Rule 23). The panel held that “Wilson does not
change the Lampitok test for determining the reasonability for a search
of a probationer’s residence.”
We granted the State’s petition for leave to appeal. Ill. S. Ct. R.
315(a) (eff. Aug. 15, 2006).
II. ANALYSIS
When reviewing a circuit court’s ruling on a motion to suppress
evidence, that ruling is assessed under the two-part test adopted by
the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699
(1996). People v. Harris, 228 Ill. 2d 222, 230 (2008). The circuit
court’s factual findings are upheld unless they are against the manifest
weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431
2
What was referred to as “parole” in Illinois prior to February 1, 1978,
is now termed “mandatory supervised release” (MSR). 730 ILCS 5/5–8–1(d)
(West 2006); see also Wilson, 228 Ill. 2d at 37 n.1. For clarity, Illinois
defendants on MSR shall be referred to as “parolees” in this opinion.
-4-
(2001). The reviewing court then assesses the established facts in
relation to the issues presented and may draw its own conclusions in
deciding what relief, if any, should be granted. Harris, 228 Ill. 2d at
230. Accordingly, this court reviews de novo the ultimate legal
question of whether suppression is warranted. People v. Luedemann,
222 Ill. 2d 530, 542-43 (2006).
The fourth amendment to the United States Constitution guards
the “right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.” U.S. Const.,
amend. IV; accord Ill. Const. 1970, art. I, §6. A “search” occurs when
“an expectation of privacy that society is prepared to consider
reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113
(1984). Although the fourth amendment protects an individual’s
privacy in a variety of settings, “[i]n none is the zone of privacy more
clearly defined than when bounded by the unambiguous physical
dimensions of an individual’s home.” Payton v. New York, 445 U.S.
573, 589 (1980). Because one’s right to retreat into his or her home
without unreasonable government interference is a core principle of
the fourth amendment (Kyllo v. United States, 533 U.S. 27, 31
(2001)), law enforcement officers generally may not enter, much less
search, a person’s home without a warrant absent exigent
circumstances. Payton, 445 U.S. at 590.
The Supreme Court, however, has set forth limited exceptions to
the warrant requirement. For example, consent has long been an
exception to the need for a search warrant. Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973). In addition, a warrantless
search may be considered reasonable upon a showing of “special law
enforcement needs, diminished expectations of privacy, [and] minimal
intrusions.” Illinois v. McArthur, 531 U.S. 326, 330 (2001). Indeed,
where an individual–such as defendant–is serving a term of probation,
the restrictions placed upon his conduct due to the terms of his
probation agreement results in his having a “significantly diminished”
expectation of privacy. United States v. Knights, 534 U.S. 112, 119-
20 (2001).
The State contends that because defendant, as part of a fully
negotiated guilty plea, freely agreed to the suspicionless search
condition contained in article 10(c) of his probation order, he thereby
knowingly waived his rights under the fourth amendment to challenge
-5-
the reasonableness of any search conducted in accordance with this
provision. Although the State acknowledges that Lampitok held that
the specific probation search condition in that case did not constitute
such a waiver, it asserts that applying that holding under these facts
provides defendant with the benefit of the bargain, i.e., serving a term
of probation rather than imprisonment, but strips the State of the
benefit that made probation rather than imprisonment a mutually
advantageous option: its ability to closely supervise defendant to
ensure successful completion of his probation period and the need to
protect the public while defendant is on probation. Accordingly, the
State requests that we revisit this issue, and adopt the holding of the
United States Court of Appeals for the Seventh Circuit in United
States v. Barnett, 415 F.3d 690 (7th Cir. 2005), which concluded that
a probationer’s agreement to the identical suspicionless search
condition at issue in this appeal constituted a prospective waiver of his
privacy rights. We agree with the State.
The facts in Barnett mirror those in the instant appeal. Barnett,
similar to defendant, pled guilty to criminal offenses in the circuit
court of St. Clair County. United States v. Barnett, No.
03–CR–30170, 2004 U.S. Dist. LEXIS 3089, at 2 (S.D. Ill. Feb. 27,
2004). As part of his fully negotiated guilty plea, Barnett–like
defendant–agreed to abide by certain conditions of “intensive
probation supervision” in lieu of prison, including the identical
suspicionless search provision at issue in this appeal, which was also
labeled as article 10(c) in Barnett’s probation order. Id. at 2-3.
Further, like defendant, Barnett’s behavior during a visit to the St.
Clair County probation office was observed by Chester, who believed
it indicated Barnett was involved in illegal activity. Id. at 4. Again,
mirroring the instant appeal, Chester looked into Barnett’s criminal
background, determined that illegal contraband or activity was to be
found at Barnett’s home, and directed a probation officer to search
Barnett’s residence later that evening. Id. That officer, accompanied
by two sheriff’s department deputies, conducted a search of Barnett’s
home and found weapons, which led to Barnett facing federal charges
for being a felon in possession of a firearm. Id. at 5. Barnett filed a
motion to suppress evidence, alleging that the search violated the
fourth amendment because it was conducted without a warrant and
the officers had neither probable cause nor reasonable suspicion that
-6-
he was involved in criminal activity or conduct which violated the
terms of his probation. Id. at 1-2.
The United States district court rejected Barnett’s arguments.
Instead, the court agreed with the government that, by accepting the
terms of intensive probation supervision as part of his fully negotiated
guilty plea, Barnett voluntarily and knowingly waived his fourth
amendment rights in exchange for not having to serve time in prison.
Id. at 7-11. Accordingly, the district court denied Barnett’s
suppression motion.
The Seventh Circuit affirmed. The court first noted that the
Supreme Court has made it clear that where a probationer accepts a
broad probation condition–such as in the matter at bar–he therefore
has a significantly diminished expectation of privacy. Barnett, 415
F.3d at 691 (citing Knights, 534 U.S. at 119, 122). A probationer may
waive this already diminished expectation of privacy, according to
Barnett, “provided that the waiver is knowing and intelligent.” Id.
Barnett grounded this holding in its observation that plea bargains
are a form of contract, and “like other contracts are presumed to make
both parties better off and do no harm to third parties.” Id. at 692.
The court explained the benefits reaped by both Barnett and the State
as a result of their agreement:
“Barnett didn’t want to go to prison. He preferred to sacrifice
the limited privacy to which he would have been entitled ***
just as convicted defendants prefer home confinement to
confinement in a jail or prison even if the home confinement
involved monitoring the defendant’s activities inside the home
and thus invades his privacy. And since imprisonment is a
greater invasion of personal privacy than being exposed to
searches of one’s home on demand, the bargain that Barnett
struck was not only advantageous to him but actually more
protective of Fourth Amendment values than the alternative of
prison would have been. It was also advantageous to the
government, which wouldn’t have agreed to it otherwise. ***
*** Nothing is more common than an individual’s
consenting to a search that would otherwise violate the Fourth
Amendment, thinking that he will be better off than he would
be standing on his rights. Often a big part of the value of a
right is what one can get in exchange for giving it up. Here,
-7-
given the alternative facing him of a prison sentence, Barnett
gave up nothing.” (Emphasis in original.) Id. at 691-92.
The court also rejected Barnett’s contention that enforcing a
blanket consent invites abuse on the part of law enforcement, stating
that this not only ignores the even greater deprivation of privacy
Barnett faced if he were to be imprisoned, but also that because a plea
bargain is a contract, it contains implicit terms which necessarily
prevent absurd results. The court found that the purpose of the waiver
“was not to permit probation officers to harass probationers, but to
excuse the officers from having to justify a search by establishing that
it was based on probable cause, suspicion, or some other standard that
might invite litigation,” and that it is reasonable to assume that “the
‘contract’ implicitly forbids–equivalently, the waiver of Fourth
Amendment rights does not extend to–searches that have no possible
law-enforcement objective, or that so far exceed any legitimate
enforcement needs as to compel an inference that the purpose and
only effect were harassment.” Id. at 692. Accordingly, the Seventh
Circuit affirmed the district court’s denial of Barnett’s suppression
motion.
Barnett’s contract law analysis and conclusion is supported by our
own precedent. Beginning with our 1996 decision in People v. Evans,
174 Ill. 2d 320 (1996), we have repeatedly held that fully negotiated
guilty pleas such as the one at bar are governed by principles of
contract law. Accordingly, we have determined that to allow a
defendant to unilaterally modify the terms of a fully negotiated plea
agreement while holding the State to its part of the bargain “flies in
the face of contract law principles” (id. at 327), because “the guilty
plea and the sentence ‘go hand in hand’ as material elements of the
plea bargain” (id. at 332). Consequently, in order to avoid
“ ‘gamesmanship of a most offensive nature’ ” (id. at 327), we held
that a defendant may not seek to unilaterally reduce his sentence while
holding the State to its part of the bargain (id.). Applying contract
principles, we determined that a defendant, therefore, may seek to
modify the terms of a fully negotiated guilty plea only by withdrawing
that plea and vacating the judgment, thereby returning the parties to
-8-
the status quo ante. Id. at 332. 3 Subsequent to Evans, we have
repeatedly held that it is the existence of a sentencing concession on
the part of the State which triggers the application of contract
principles. See, e.g., People v. Morris, 236 Ill. 2d 345 (2010) (noting
that Evans held that under principles of contract, both the State and
defendant are bound to the terms of a plea agreement); People v.
Diaz, 192 Ill. 2d 211 (2000) (principles of contract law set forth in
Evans apply where State agreed not to seek extended-term sentences);
People v. Linder, 186 Ill. 2d 67 (1999) (contract principles discussed
in Evans apply where defendant pled guilty in exchange for a cap on
the length of his sentence); People v. Clark, 183 Ill. 2d 261 (1998)
(Evans’ contract analysis applies where defendant negotiated his guilty
plea, but parties disagreed on whether sentences would be served
consecutively); c.f. People v. Lumzy, 191 Ill. 2d 182 (2000) (Evans’
contract principles do not apply where the agreement concerns only
charges and not sentences).
We find this case to be analogous to Evans and, therefore,
similarly governed by principles of contract law. Here, defendant and
the State entered into a fully negotiated plea agreement in which
defendant pled guilty to a charge in exchange for the State’s
recommendation of a specific sentence: two years’ probation, with the
first year being “intensive.” Faced with the possibility of imprisonment
and a complete loss of freedom and privacy rights, defendant opted to
avoid incarceration and agree to probation, including a year of the
more restrictive “intensive” version and its greater invasion of privacy.
This bargain was advantageous to defendant, as he avoided jail time
and gave up nothing by agreeing to probation and its restrictions. The
bargain was also advantageous to the State, in that it assured that
defendant was required to comply with the more restrictive conditions
of intensive probation for the first year. It is undisputed that the
agreement was explained to defendant, he understood its provisions
3
We contrasted the negotiated plea at issue with an “open” plea, in which
a defendant pleads guilty without receiving any promises from the State in
return. Evans, 174 Ill. 2d at 332. We held that in the case of an open plea,
because the State offers the defendant no inducements to plead guilty,
defendants who enter such pleas may challenge their sentences without being
required to also withdraw their guilty pleas. Id.
-9-
and he freely signed the form.
Defendant’s actions in subsequently challenging the validity of the
search of his home conducted pursuant to article 10(c) of his
probation agreement are analogous to those of a defendant who enters
into a fully negotiated guilty plea and thereafter seeks to unilaterally
reduce his sentence by filing a motion for reconsideration without
withdrawing the plea. In both instances, the defendant wishes to hold
the State to its part of the bargain while not adhering to his own part
of the agreement, thereby raising the specter of gamesmanship similar
to that discussed in Evans. Just as the specific sentence and plea went
“hand in hand” as material elements of the plea bargain in Evans, so,
too, did the plea and the conditions of probation at issue here.
Defendant, in his brief, does not address Barnett substantively, but
asks that we adhere to our position in Lampitok that the probationer’s
agreement in that case to a warrantless search condition did not
constitute prospective consent.
We find Lampitok to be factually distinguishable from this case.
First, we note the significant differences between the probation
condition at issue there and the condition agreed to by defendant at
bar. In Lampitok, the probationer was subject to a probation order
which provided that she “shall submit to a search of her person,
residence, or automobile at any time as directed by her Probation
Officer to verify compliance with the conditions of this Probation
Order.” (Internal quotation marks omitted.) Lampitok, 207 Ill. 2d at
236. Reviewing the “shall submit” language used in that provision, we
held that it did not constitute a prospective consent, as it only charged
the probationer with the duty to submit to a search when directed to
do so, and she retained an element of choice as to whether to comply
with the condition or face possible revocation of her probation. Id. at
261-62.
In contrast, the language used in defendant’s probation order is far
more restrictive with regards to defendant’s conduct, and far more
restrictive with respect to its scope. Defendant is required to “obey
and comply” with the “rules and regulations of intensive probation
supervision,” including that he “[s]ubmit to searches of [his] person,
residence, papers, automobile and/or effects at any time such requests
are made by the Probation Officer, and consent to the use of anything
seized as evidence in court proceedings.” Unlike in Lampitok where
-10-
we held that the search condition “affirmatively required [the]
probation officer to ask [the probationer’s] consent” to a search
limited to verify her compliance with conditions of her probation (id.
at 262), here, defendant has agreed to obey and comply with any
search conducted by a probation officer, and has also explicitly
provided “consent” to the use of anything seized during such search
as evidence in court proceedings. It is clear that defendant’s search
condition implicates far more than only the probation revocation
discussed in Lampitok. Accordingly, the search conditions set forth in
these cases are factually distinguishable.
Lampitok is further distinguishable to the extent that, unlike here,
defendant Lampitok was not the probationer subject to the search
condition. Instead, Lampitok was an acquaintance who occupied a
motel room with the probationer at the time probation officers
searched the premises, and who was arrested as a result of the
discovery of drugs and weapons. Id. at 235-37. Finally, we also note
that Lampitok preceded Barnett, and, therefore, we did not have the
benefit of its analysis at the time of that decision.
Thus, we have not had prior occasion to answer the question
squarely presented in this appeal. Because Barnett not only addresses
identical facts to those in the case at bar, but also mirrors our own
precedent establishing that contract principles govern a fully
negotiated guilty plea, we find Barnett persuasive. In addition, we
believe that on these facts this approach also promotes the dual
purpose of the probation system: the rehabilitation of the probationer
and the protection of the public. Griffin v. Wisconsin, 483 U.S. 868,
875 (1987). We therefore hold that under the specific facts in this
appeal, defendant’s agreement to the suspicionless search condition in
article 10(c) of his probation order constituted prospective consent.4
Because we find that defendant waived his fourth amendment
rights by freely agreeing to the suspicionless search condition set forth
4
We note that this case does not present the situation where a defendant
was involuntarily placed on probation, required to submit to conditions
imposed by the sentencing judge, or had no option to refuse the conditions.
Our decision today is limited to the specific facts presented, and we express
no opinion with respect to other factual situations.
-11-
in article 10(c) of his probation order, we need not address the
remainder of the State’s arguments in support of its position that the
search was valid.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court and affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
-12-