People v. Redman

NO. 4-06-0180 Filed 10/31/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Clark County
RONALD L. REDMAN, ) No. 05CF30
Defendant-Appellee. )
) Honorable
) Tracy W. Resch,
) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In January 2006, the trial court granted defendant

Ronald L. Redman's motion to suppress. The State appeals,

arguing the court erred because (1) the evidence soon would have

been found by lawful means, unrelated to the alleged misconduct;

(2) the officers had reasonable suspicion that defendant, who was

on probation, was involved in manufacturing methamphetamine and,

therefore, the officers could lawfully search defendant and the

residence; (3) the officers proceeded reasonably and with greater

restraint than called for by the fourth amendment; (4) the

officers had probable cause to arrest defendant and the others at

the residence; and (5) the consents to search the residence were

voluntarily and validly given.

We reverse and remand. The officers had probable cause

to arrest defendant once he exited the residence because (1) a
strong odor associated with methamphetamine manufacturing

emanated from the property; (2) the officers observed items

associated with methamphetamine manufacturing in an open garbage

can from a lawful vantage point; and (3) the officers knew

defendant sold, used, and manufactured methamphetamine.

I. BACKGROUND

In April through December 2005, the State charged

defendant with various offenses arising out of events occurring

in April 2005: (1) unlawful manufacture of a controlled

substance, less than 15 grams of a substance containing

methamphetamine (720 ILCS 570/401(d) (West 2004)) (count I); (2)

unlawful possession of a controlled substance, less than 15 grams

of a substance containing methamphetamine (720 ILCS 570/402(c)

(West 2004)) (count II); (3) unlawful manufacture of a controlled

substance, 100 grams or more but less than 400 grams of a

substance containing methamphetamine (720 ILCS 570/401(a)(6.5)(B)

(West 2004)) (count III); (4) unlawful possession of a controlled

substance, 100 grams or more but less than 400 grams of a

substance containing methamphetamine (720 ILCS 570/402(a)(6.5)(B)

(West 2004)) (count IV); and (5) unlawful delivery of a

controlled substance, less than 15 grams of a substance

containing methamphetamine (720 ILCS 570/401(d) (West 2004))

(count V).

In December 2005, defendant filed a motion to suppress

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evidence illegally seized from a residence located at 205 East

Harrison, Casey, Illinois. Defendant argued the officer(s) (1)

illegally entered the rear yard; (2) improperly searched a trash

can within the curtilage of the home and seized items therein

without a warrant; (3) illegally searched the shed without

authority, which led to illegal seizure of items from the shed;

(4) arrested defendant as a result of the illegal search and

seizure; and (5) obtained consent to search after the illegal

search and seizure of items, thereby rendering the consent the

"fruit of the poisonous tree."

At the hearing, defendant called Officers Richard

Shutter and Bill Brown, both with the Clark County sheriff's

department, to testify. Both officers testified that they had

received training regarding methamphetamine laboratories and were

familiar with the odor associated with methamphetamine production

based on their training and experience.

Officer Shutter testified that on April 3, 2005, at

approximately 6:50 a.m., he was on duty patrolling the vicinity

of 205 East Harrison. Officer Shutter routinely patrolled that

area because he knew an individual with a history of

manufacturing methamphetamine lived three or four houses west of

the house at 205 East Harrison.

Pictures of the home at 205 East Harrison show a

driveway on the east side of the house leading to a detached one-

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car garage at the end of the driveway. The back of the garage

has a shed that appears added on to the garage. The front of the

house has an open front porch.

Officer Shutter testified he was driving his patrol car

with the windows up and the heater on when he detected a strong

chemical odor that he knew was related to methamphetamine

manufacturing. He described the odor as one caused by the

reaction of lithium and anhydrous ammonia during the

methamphetamine-manufacturing process. Officer Shutter exited

his vehicle and determined the odor was coming from 205 East

Harrison but could not tell what portion of the residence emitted

the odor.

Officer Shutter did not know who lived at the address.

He called dispatch to run the license plates on the two vehicles

parked in the driveway. One vehicle belonged to Julie Griffin, a

person unknown to Officer Shutter. The other vehicle belonged to

defendant. Officer Shutter had previous information that

defendant was involved in manufacturing, using, and selling

methamphetamine.

Officer Shutter tried to call for assistance from the

sheriff and the "task force man" but was unable to contact

either. Officer Shutter then called Officer Brown, who was

scheduled to come on duty at 8 a.m.

When Officer Brown arrived at approximately 7:30 a.m.,

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he "immediately reacted to the odor." Officer Brown described

the odor as a chemical odor, the odor of ether or fuel mixed with

anhydrous ammonia. The officers decided to knock on the front

door to further investigate. Officer Shutter planned to advise

the occupants of the odor, ask them to come outside, secure the

residence, and possibly seek consent to search. Officer Shutter

also testified he intended to arrest the people in the house.

Likewise, Officer Brown testified he approached the house

intending to further investigate and also arrest the occupants of

the house.

Officer Shutter asked Officer Brown to cover the rear

of the residence in case any of the occupants tried to flee and

also to provide cover for Officer Shutter. Officer Brown

testified that as he walked down the driveway toward the back of

the house, he heard voices in the residence. As he approached

the southeast, rear corner of the house, the odor became

stronger. Officer Brown observed four trash cans that Officer

Brown did not see until he reached the back of the house. The

garbage cans were approximately two steps from the driveway,

against the back of the house, and just east of the rear porch

steps.

Before Officer Shutter made it to the front door,

Officer Brown called for him. Officer Shutter joined Officer

Brown at the rear of the house. Officer Shutter explained that

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the officers did not have to enter the rear yard to reach the

garbage cans. Anyone who drove in the driveway would conceivably

approach the back door the way Officer Brown had approached the

back door because a path--not paved but an area where the grass

was not growing--was present from the driveway to the steps at

the back door. The rear of the house contained no fences.

Three of the garbage cans were covered with lids. The

fourth garbage can had the lid crammed down inside of the can,

perpendicular to the ground. Officer Brown could see in the

garbage can without moving anything. Officer Brown observed

"meth trash," which he explained included "masks" and plastic

pitchers with a whitish, dry film on the inside. The officers

believed the garbage can was the source of the odor. The

officers did not seize the items contained in the garbage can.

Officer Shutter returned to the front of the house and

knocked on the front door. No one responded to the knocking.

Officer Shutter asked dispatch to call the residence. Officer

Shutter could hear the phone ringing but no one answered the

phone. Officer Shutter knocked on the front door for 10 to 15

minutes. Officer Shutter announced his name and office and

specifically asked for defendant to open the door. Officer

Shutter did not attempt to enter the residence because he was not

sure that he could enter. Officer Shutter believed that given

defendant's vehicle and reported methamphetamine involvement, a

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strong possibility existed that defendant was in the residence

and was involved in manufacturing methamphetamine with other

individuals in the residence.

After receiving no answer to the knocks on the door,

the officers retreated and set up a perimeter. Officer Shutter

called the State's Attorney and requested the process be started

for a search warrant to search the residence, vehicles, and

outbuildings.

Officer Shutter then called Casey officer Bob Mall.

Shutter also received information--he could not remember how--

that defendant was on probation in Coles County. Shutter called

the Coles County sheriff's department and received the name of

defendant's probation officer, Steve Kelly. Officer Shutter

asked dispatch to contact defendant's probation officer. Officer

Shutter believed that defendant, as a probationer, was subject to

warrantless searches, and Officer Shutter believed he would be

able to enter the residence with the probation officer, so long

as he had reasonable suspicion. Officer Shutter thought he had

reasonable suspicion to enter the residence with defendant's

probation officer due to the odor.

While waiting for Kelly to arrive, Officer Shutter

walked to the shed attached to the back of the garage and looked

into a window opening that had no glass. Officer Shutter could

see a tank he believed might be used for anhydrous ammonia and

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rubber hoses. Officer Shutter took photographs of the residence

from all angles, the garbage can with the methamphetamine trash,

and the shed.

When Kelly arrived, he informed Officer Shutter that

the address was not defendant's probation address. Kelly told

Officer Shutter he could not do a probation check on defendant at

that address.

Officer Shutter drove his car into an unpaved alley

behind the house. The garbage cans and shed were visible from

the alley. The other officers took positions at various points

around the residence. Everyone waited.

At approximately 10:30 a.m., Chief of Police Wally

Whitton came to the scene. Chief Whitton informed Officer

Shutter he had a "somewhat cooperative relationship" with

defendant and asked if he could try to get defendant out of the

residence. After several attempts, defendant returned Chief

Whitton's telephone call. At approximately 11:25 a.m., Chief

Whitton was able to convince defendant and the others to come out

of the residence. The other occupants in the house included

Griffin, Matt and Nicki Hensley, and two small preschool-age

children (Griffin's daughter and Nicki's daughter).

Once the four individuals exited the residence, Officer

Shutter placed them under arrest for manufacturing

methamphetamine. Officer Shutter testified he would have

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arrested them based on the odor even if he had not known about

the items in the garbage can. Officer Shutter handcuffed the

four individuals and placed them on the sidewalk. The State's

Attorney then called and told Officer Shutter to be ready to go

before a judge in 30 minutes. Officer Shutter informed the

State's Attorney that the four individuals had just exited the

residence. The State's Attorney suggested that Officer Shutter

try to obtain written consent to search.

Officer Shutter obtained a written statement from all

four people to search the residence, vehicles, and the

outbuildings. Officer Shutter denied using any force to obtain

their consents. Officer Shutter testified he told them they did

not have to consent. Officer Shutter also told the individuals

that he had been in contact with the State's Attorney, and the

State's Attorney informed him that a judge had been contacted and

would be ready in about a half hour. Officer Shutter told the

individuals that if they gave consent to search, he would mention

their cooperation in his report. If they did not give consent to

search, they would have to wait while Officer Shutter met with

the State's Attorney to see if the judge would approve the

warrant, in which case he would mention in his report they were

uncooperative.

During the search, the officers found a rent receipt

dated October 2004 signed by Dean Roberts for rent from Griffin

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and defendant. Officer Shutter also found mail with defendant's

name and the 205 East Harrison address, as well as clothing that

belonged to a male approximately defendant's size. Officer

Shutter believed defendant told him defendant lived there.

Griffin later told Officer Shutter that defendant had been living

with her for several months.

The officers searched every room of the house. Officer

Shutter saw a chemical stain on the basement floor. Also in the

basement, Officer Shutter observed pots and pans that appeared to

have been freshly washed and matched the size of the stains on

the basement floor. Officer Shutter seized from the basement two

metal pots, two containers of drain cleaner, salt, a glass Ball

jar, dust mask, duct tape, and three pairs of wire cutters.

Officer Shutter seized from the kitchen coffee filters and

aluminum foil. In the wastebasket, Officer Shutter found used

coffee filters, which he described as typically being used in the

filtering process of manufacturing methamphetamine. The

filtering phase involves "separating the pseudoephedrine, the

ephedrine from the tablet." Officer Shutter explained that the

pills are red, resulting in a pinkish residue. The coffee

filters contained white and pinkish powder.

Officer Shutter also found in the wastebasket paper

towels containing red pill residue, used foil inside a crushed

pop can, a broken glass Ball jar, and orange-scented Pine-Sol

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that had been poured in the pop can. Officer Shutter also seized

the items from the garbage can outside, which included plastic

pitchers. From the shed, Officer Shutter seized a stainless

steel tank that had not been altered and had no odor of anhydrous

ammonia and two pieces of rubber hose--known to be used for

stealing ammonia--that also contained no odor of ammonia. A

metal valve handle was seized from inside Matt Hensley's pants.

Officer Shutter did not find any methamphetamine and believed the

individuals got rid of it during the 4 1/2 hours it took to get

them out of the house.

After getting information from the four individuals

after their arrest, the officers obtained a search warrant the

next day and returned to search the property. As a result of the

second search, the officers seized burnt foil, a crushed aluminum

can containing two Ziploc bags with unknown residue, and a gray

ink "tooter" containing what was suspected to be methamphetamine.

(Officer Shutter did not define the term "tooter.") In the

basement, the officers found empty gallon containers of Ozark

Trails campfire fuel and, from behind a false wall, a gallon

container of Liquid Fire drain cleaner.

The owner of the uninhabited property next door, "Mr.

Funk," gave the officers permission to search a shed on his

property. The officers seized an altered oxygen tank. The valve

had turquoise-colored corrosion typical of a container used for

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anhydrous ammonia. The officers also seized a fire extinguisher,

located next to the oxygen valve, with a nylon-like gym bag or

carry satchel.

On January 27, 2006, the trial court issued its ruling

granting the motion to suppress. The court concluded that no

exception to the warrant requirement was shown to authorize a

warrantless search of the dwelling and the curtilage.

Specifically, the court found that (1) because the search of the

house and the curtilage was unlawful, the court need not address

constitutional issues raised by the "walk around"; (2) the

special-needs (probation) exception did not apply because the

State offered no evidence of a court order that would serve as

grounds for a probationary search; (3) the administrative-search

exception did not apply because in the 4 1/2 hours that elapsed

between the detection of the odor and the search, the officers

took no action suggesting they believed the public was in

imminent danger from an operating laboratory; (4) the plain-view

exception did not apply because, even if the visual inspection of

the garbage can constituted a plain-view search, that did not

excuse the warrant requirement; (5) the search-incident-to-arrest

exception did not apply because the officers had no probable

cause to arrest and, even if the persons in the house were

subject to arrest, the exception does not support a warrantless

search of the dwelling and the curtilage; and (6) the consent

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exception did not apply because the arrests of defendant and the

others lacked probable cause and were therefore illegal. The

court also noted that the odor from the garbage can would have

justified issuance of a search warrant to seize the garbage. The

court opined that the officers should have watched the garbage

can while applying for the search warrant to observe any person

who approached the can and demonstrated a possessory interest

linking them to the evidence in the garbage can.

The State filed its certificate of impairment, and this

appeal followed.

II. ANALYSIS

On appeal, the State argues the trial court erred by

suppressing the evidence because (1) the evidence would have soon

been found by lawful means because (a) the officers had

reasonable suspicion that defendant, who was on probation, was

involved in manufacturing methamphetamine and, therefore, the

officers could have lawfully searched defendant and his

residence; and (b) a request for a search warrant was in progress

and would have been granted based on experienced officers having

detected an odor associated with methamphetamine manufacturing;

(2) the officers proceeded reasonably and with greater restraint

than called for by the fourth amendment; (3) the odor gave the

officers probable cause to arrest defendant and the others at the

residence; and (4) defendant's and Griffin's consents to search

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the residence were voluntarily and validly given.

Defendant argues as follows: (1) odor alone did not

provide probable cause for the officers to enter onto the

property and search the house and the curtilage without a

warrant; (2) no exigent circumstances justified the warrantless

search; (3) the consent to search was involuntary because the

officers lacked probable cause to arrest any of the adults in the

house; (4) the probationer-warrantless-search exception does not

apply because defendant's probation order and conditions were not

entered into evidence; and (5) the inevitable-discovery doctrine

does not apply because (a) it cannot be assumed a judge would

have issued a search warrant and (b) a search warrant would not

have been based on an independent line of investigation.

We agree with the State. The officers observed the

items contained in the garbage from a lawful vantage point. That

evidence, along with the evidence that defendant's vehicle was

parked in the driveway, defendant was known to manufacture, sell

and use methamphetamine, and the odor coming from the garbage can

was associated with methamphetamine manufacture, gave the

officers probable cause to arrest defendant. The officers

arrested defendant in a public place and did not illegally enter

the residence. A search of the residence did not occur until

consent had been obtained.

A. Standard of Review

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 The review of a trial court's ruling on a motion to

suppress involves mixed questions of fact and law. People v.

Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003). This

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. Gherna, 203 Ill. 2d at 175, 784

N.E.2d at 805. However, this court reviews de novo the trial

court's legal determination of whether suppression is warranted

under those facts. Gherna, 203 Ill. 2d at 175, 784 N.E.2d at

805.

In this case, the State does not challenge the trial

court's factual findings but argues suppression was not warranted

under those facts. Therefore, our review is de novo.

B. The Officers Did Not Violate the Fourth Amendment's
Prohibition Against Unreasonable Searches and Seizures

The fourth amendment provides that "[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated." U.S. Const., amend. IV. Likewise, under our state

constitution, "[t]he people shall have the right to be secure in

their persons, houses, papers[,] and other possessions against

unreasonable searches[] [and] seizures." Ill. Const. 1970, art.

I, §6. As recently stated by this court in People v. Leggions,

382 Ill. App. 3d 1129, 1132, 890 N.E.2d 700, 704 (2008):

"We interpret article I, section 6, in 'lim-

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 ited lockstep' with the fourth amendment.

People v. Caballes, 221 Ill. 2d 282, 313, 851

N.E.2d 26, 44 (2006) (reaffirming the 'lim-

ited lockstep' doctrine). 'Under this ap-

proach, [Illinois courts] will "look first to

the federal constitution, and only if federal

law provides no relief [will they] turn to

the state constitution to determine whether a

specific criterion--for example, unique state

history or state experience--justifies depar-

ture from federal precedent."' Caballes, 221

Ill. 2d at 309, 851 N.E.2d at 42-43, quoting

L. Friedman, The Constitutional Value of

Dialogue and the New Judicial Federalism, 28

Hastings Const. L.Q. 93, 104 (2000)."

In this case, neither of the parties argues for a

departure from federal precedent on the ground that article I,

§6, of the Illinois Constitution requires a different outcome

than the fourth amendment. Therefore, this court will interpret

the quoted provisions from the two constitutions as having the

same meaning and effect.

1. The Initial Entry Onto the Property
Was for a Legitimate Purpose and Officers Lawfully
Observed the Contents of the Garbage Can

In the case sub judice, the trial court found it

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unnecessary to determine whether the police officers' original

"walk-around *** was compliant with the [f]ourth [a]mendment."

The court noted that the garbage can was not searched during the

initial "walk-around" but only later after the full search of the

residence. The court concluded that, given its conclusion that

the search of the house and curtilage was unlawful, it was

unnecessary to address the constitutional issues raised by the

walk-around. We disagree and conclude this court must determine

whether the officers lawfully approached the house and lawfully

observed the contents of the garbage can.

An officer may lawfully approach the front door of a

residence to conduct an investigation--referred to by many courts

as a "knock and talk"--so long as the officer enters an area

impliedly open to the public. See United States v. LePage, 477

F.3d 485, 488 (7th Cir. 2007) (finding the officers did not act

unreasonably when they walked onto the porch of the home and

observed a partially open duffel bag containing a shotgun);

United States v. Walters, 529 F. Supp. 2d 628, 637 (E.D. Tex.

2007) (finding that the fourth amendment is not implicated when

an officer visits a house in the same lawful way that an ordinary

citizen would). An officer may go beyond the front door to

investigate by approaching the back door of a residence--either

when no one answers a knock on the front door or where a legiti-

mate reason is shown for approaching the back door. See People

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v. Hunley, 313 Ill. App. 3d 16, 24, 728 N.E.2d 1183, 1193 (2000)

(finding no violation of the fourth amendment where the police

officers peaceably entered common backyard and open back porch to

investigate complaints received about occupants of the apart-

ment); see also, e.g., VanWinkle v. State, 764 N.E.2d 258, 264

(Ind. App. 2002) (finding the defendant had no reasonable expec-

tation of privacy in the front and rear doors of the mobile

home); Hardesty v. Hamburg Township, 461 F.3d 646, 654 (6th Cir.

2006) (finding that the decision to proceed around the house and

seek a back door after receiving no response to a knock at the

front door was within the scope of the "knock and talk"). In

this case, Officer Brown proceeded to the back of the house in

case the occupants attempted to leave from the rear and Officer

Shutter needed protection. Therefore, Officer Brown had a

legitimate reason for approaching the back door.

According to their testimony, Officer Shutter and

Officer Brown approached the house to knock on the front door

either as part of an investigation or to arrest the occupants of

the house. Either reason was a legitimate purpose for being on

the property (so long as the officers had probable cause to

arrest the occupants of the house, an issue discussed further

below). See People v. Dennison, 61 Ill. App. 3d 473, 478, 378

N.E.2d 220, 224 (1978) (finding the officers were on the property

for a legitimate purpose when their presence was for the purpose

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of either investigating the defendant about an abandoned car seen

on the property the day before or to place the defendant under

arrest where the officers had probable cause to do so based on

what they observed from the sidewalk before approaching the front

door); but see United States v. Khut, 490 F. Supp. 2d 35, 40 (D.

Mass. 2007) (holding that "investigating officers may not create

exigent circumstances by choosing not to get a warrant, making

their presence known by knocking-and-announcing, and then claim-

ing that a warrantless search is necessary to avoid destruction

of evidence").

Once an officer is legitimately on the property, he or

she may properly observe any "evidence lying about in the open."

Dennison, 61 Ill. App. 3d at 477, 378 N.E.2d at 224. A search

does not occur when officers observe what is in open view.

People v. Berg, 67 Ill. 2d 65, 68, 364 N.E.2d 880, 881-82 (1977);

see also, e.g., City of Decatur v. Kushmer, 43 Ill. 2d 334, 338,

253 N.E.2d 425, 428 (1969) (finding no search occurred where the

officials entered the land to photograph that which could be

observed from the public view). The ability to observe items in

plain view extends to odors. See People v. Wright, 41 Ill. 2d

170, 174, 242 N.E.2d 180, 183 (1968) (holding that the "plain[-]

view doctrine has been applied to anything which an officer

becomes aware of by use of his five senses while in a lawful

position").

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 Therefore, when Officer Brown approached the back door

and smelled the strong odor, consistent with methamphetamine

manufacturing, emanating from the open garbage can, he lawfully

peered inside the open garbage can. Such action constituted

neither a search nor a seizure. Specifically, defendant did not

have a reasonable expectation of privacy in the contents of the

garbage can because the lid was pushed down, perpendicular to the

ground, into the garbage can, exposing the contents to anyone who

passed by the garbage can on his or her way to the back door.

To summarize, the officers' decision to approach the

house and manner in which they did so were reasonable. Officer

Shutter noticed the odor associated with methamphetamine produc-

tion while driving in his vehicle with his windows rolled up,

thus indicating the odor was very strong. Defendant's vehicle

was in the driveway of the home, and Officer Shutter knew defen-

dant was involved with using, selling, and manufacturing metham-

phetamine. Approaching the home from the front and the back for

safety purposes was also reasonable and proper. Officer Brown

walked along a path open to visitors when approaching the back

door. While walking along that path, he lawfully smelled and

visually observed the open garbage can emanating an odor associ-

ated with methamphetamine manufacturing and containing what

appeared to be "meth trash."

2. The Officers Had Probable Cause To Arrest Defendant

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 Having determined the officers legally approached the

residence and observed the contents of the open garbage can, the

next determination is whether the officers had probable cause to

arrest defendant without a warrant.

A warrantless arrest may be conducted by police if they

have probable cause to believe that the person to be arrested has

committed or is committing an offense. 725 ILCS 5/107-2(1)(c)

(West 2004); People v. McGee, 373 Ill. App. 3d 824, 830-31, 869

N.E.2d 883, 889 (2007). The Illinois Supreme Court has stated:

"Probable cause exists when the totality of

the facts and circumstances known to the

officers is such that a reasonably prudent

person would believe that the suspect is

committing or has committed a crime. [Cita-

tions.] Whether probable cause is present is

governed by common-sense considerations [ci-

tations], and the calculation concerns '[t]he

probability of criminal activity, rather than

proof beyond a reasonable doubt.'" People v.

Montgomery, 112 Ill. 2d 517, 525, 494 N.E.2d

475, 477-78 (1986), quoting People v. Tisler,

103 Ill. 2d 226, 236, 469 N.E.2d 147, 152

(1984).

This court reviews a ruling on a motion to suppress

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involving probable cause de novo. People v. Jackson, 372 Ill.

App. 3d 112, 121, 865 N.E.2d 195, 203 (2007). Upon review, this

court "must examine 'the events leading up to the arrest, and

then decide "whether [those] historical facts, viewed from the

standpoint of an objectively reasonable [police] officer, [sup-

port a finding of]" probable cause.'" McGee, 373 Ill. App. 3d at

831, 869 N.E.2d at 890 (2007), quoting Maryland v. Pringle, 540

U.S. 366, 371, 157 L. Ed. 2d 769, 775, 124 S. Ct. 795, 800

(2003), quoting Ornelas v. United States, 517 U.S. 690, 696, 134

L. Ed. 2d 911, 919, 116 S. Ct. 1657, 1661-62 (1996).

In this case, the officers had probable cause to arrest

defendant. First, the officers had probable cause to believe

that the crime of manufacturing methamphetamine was or had

recently been committed. Officer Shutter and Officer Brown

smelled a strong odor consistent with methamphetamine manufactur-

ing coming from the garbage can located up against the back of

the house. See People v. Stout, 106 Ill. 2d 77, 87, 477 N.E.2d

498, 502 (1985) ("A police officer's detection of controlled

substances by their smell has been held to be a permissible

method of establishing probable cause"). The odor was so strong

that Officer Shutter first noticed it while driving in the

neighborhood with the windows of his patrol car shut. Both

Officer Shutter and Officer Brown were familiar with methamphet-

amine manufacturing and the odor produced by such manufacturing.

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Both officers testified that the smell coming from the trash can

was consistent with the manufacture of methamphetamine. The

odor, along with the observation of the "meth trash" in the

garbage can up against the back of the house gave the officers

probable cause to believe the crime of manufacturing methamphet-

amine was occurring or had recently occurred at the residence.

The officers also had probable cause to believe that

defendant was the one who committed the crime. A vehicle regis-

tered to defendant was parked in the driveway, which suggested

that defendant was in the home. Officer Shutter was familiar

with defendant and knew him to be involved in using, selling, and

manufacturing methamphetamine.

The trial court found that the officers lacked probable

cause to arrest defendant because no evidence connected defendant

to the items seen in the garbage can. In the typical garbage

case, officers seize and search garbage placed out at the curb

for pickup. See California v. Greenwood, 486 U.S. 35, 37, 100 L.

Ed. 2d 30, 34, 108 S. Ct. 1625, 1627 (1988) (holding that the

fourth amendment does not prohibit warrantless search and seizure

of garbage left for collection outside the curtilage of the

home). Officers typically may not obtain a search warrant of the

residence absent some evidence tying the garbage to the resi-

dence, such as observing an occupant of the residence place the

garbage at the curb for pickup or finding in the trash items

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tying the trash to the residence, such as mail addressed to the

residence. See People v. Stage, 337 Ill. App. 3d 242, 244, 785

N.E.2d 550, 551 (2003) (probable cause to issue a search warrant

of a residence exists where something connects the garbage to the

residence); People v. Balsley, 329 Ill. App. 3d 184, 187, 769

N.E.2d 153, 156 (2002) (if garbage is left curbside, officers

need evidence tying the garbage to the house to obtain a search

warrant for the house). Once a person terminates his or her

privacy interest in the trash by placing it out at the curb,

anyone can access it and deposit incriminating items. See People

v. Burmeister, 313 Ill. App. 3d 152, 155, 728 N.E.2d 1260, 1264

(2000) (holding that the officer could use evidence obtained in a

garbage can to obtain a search warrant only if the warrant

application established probable cause that the curbside evidence

came from the residence to be searched); see also United States

v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991) (finding expecta-

tion of privacy unreasonable because of the "common practice of

scavengers, snoops, and other members of the public in sorting

through garbage").

In this case, the garbage can was up against the back

of the house, not visible from the sidewalk at the front of the

house. See United States v. 987 Fisher Road, 719 F. Supp. 1396,

1404 (E.D. Mich. 1989) (finding that occupants of the home

maintained a reasonable expectation of privacy in garbage con-

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tained in closed garbage bags located against the back wall of

the house, hidden from the view of ordinary citizens passing by

the front of the house). Although the garbage can was visible

from the unpaved alley at the rear of the home, the pictures

admitted into evidence show that the contents of the garbage

could not be seen from that vantage point. See 987 Fisher Road,

719 F. Supp. at 1404 (noting that even if the container could be

seen by someone walking up the driveway and around the back of

the house, that person would only be able to see the closed

garbage cans, the contents of which would remain unknown; there-

fore, the occupants of the house maintained an expectation of

privacy that society would recognize as reasonable). In this

case, defendant maintained a reasonable, albeit diminished,

expectation of privacy in the garbage can next to the house. The

diminished expectation stems from leaving the garbage can open

along a pathway open to visitors entering through the back door.

Clearly, the location of the garbage can--up against the house

near the back door--and the odor coming from the garbage can at

6:50 a.m., so strong that Officer Shutter noticed it while

driving by with his windows shut, presents a strong indication

that the contents of the garbage can recently came from the

house.

The officers had probable cause to arrest defendant for

the unlawful manufacture of methamphetamine based on the follow-

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ing: (1) defendant's vehicle was parked in the driveway of the

home; (2) Officer Shutter had knowledge about defendant's metham-

phetamine use, manufacture of the drug, and selling of the drug;

(3) the strong methamphetamine-production odor in the street came

from the garbage can located next to the residence; and (4) "meth

trash" was observed in the garbage can.

3. Warrantless Arrest in a Public Place Was Valid

Having found probable cause to arrest, this court must

determine whether the officers properly conducted a warrantless

arrest. The United States Constitution normally requires the

police to obtain an arrest warrant before entering a person's

home to make an arrest. Payton v. New York, 445 U.S. 573, 576,

63 L. Ed. 2d 639, 644, 100 S. Ct. 1371, 1374-75 (1980); People v.

Lagle, 200 Ill. App. 3d 948, 952, 558 N.E.2d 514, 517 (1990)

(holding that "police officers cannot make a warrantless, non-

consensual entry into a private residence to effect a routine

felony arrest in the absence of exigent circumstances"). How-

ever, an officer may "upon probable cause, effect a warrantless

arrest in a public place for any felony, or for a misdemeanor

committed in the officer's presence." Lagle, 200 Ill. App. 3d at

952, 558 N.E.2d at 517.

In this case, the officers did not enter defendant's

home to arrest him. Instead, they waited until Chief Whitton

convinced defendant to exit the residence. The arrest occurred

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after defendant left the residence. While the record is unclear

exactly where the arrest occurred, Officer Shutter clearly

testified he arrested defendant after defendant exited the

residence. Because a warrantless arrest in a public place with

probable cause is permissible, the arrest of defendant once he

exited the home was proper. See United States v. Santana, 427

U.S. 38, 42, 49 L. Ed. 2d 300, 305, 96 S. Ct. 2406, 2409 (1976)

(a person visible to the public outside a home does not have a

reasonable expectation of privacy; therefore, officers could

properly attempt to effectuate a warrantless arrest of an indi-

vidual standing at the threshold of her home); People v. Wear,

371 Ill. App. 3d 517, 532, 867 N.E.2d 1027, 1040 (2007) (holding

that the threshold of the front door of a residence is a public

place for purposes of a warrantless arrest with probable cause),

aff'd, 229 Ill. 2d 545, 893 N.E.2d 631 (2008); People v. Wil-

liams, 275 Ill. App. 3d 249, 254, 655 N.E.2d 1071, 1075 (1995)

(finding that the porch of a residence was a public place for

purposes of a warrantless arrest).

4. Consent To Search Was Not the Product of an Illegal Arrest

After the officers arrested defendant and the other

occupants of the house, they obtained written consent to search

the house, outbuildings, and vehicles. The State argues the

trial court erred by finding the consents invalidated by the

allegedly illegal arrest because (1) the arrest was valid and (2)

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even if defendant were illegally arrested, the consents were

voluntary.

A search conducted pursuant to consent is one of the

established exceptions to the requirement of both probable cause

and a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36

L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043 (1973). A warrantless

search conducted pursuant to valid consent is permissible so long

as the consent was given voluntarily. Illinois v. Rodriguez, 497

U.S. 177, 181, 111 L. Ed. 2d 148, 156, 110 S. Ct. 2793, 2797

(1990), citing Schneckloth, 412 U.S. at 219, 36 L. Ed. 2d at 858,

93 S. Ct. at 2043-44. The State bears the burden of proving the

"consent to search was freely and voluntarily given." People v.

Zynda, 53 Ill. App. 3d 794, 801, 368 N.E.2d 1079, 1085 (1977).

Generally, this court will not disturb a trial court's

determination of voluntariness unless it is clearly unreasonable.

People v. Alvarado, 268 Ill. App. 3d 459, 463, 644 N.E.2d 783,

786 (1994). In this case, however, the trial court held that

because the arrests were made without probable cause, the con-

sents were the "fruit of the poisonous tree." Therefore, the

court found it unnecessary to determine whether the consents were

voluntarily and knowingly given.

"A defendant's consent is 'involuntary' if '"his will

has been overborne and his capacity for self-determination

critically impaired."'" Alvarado, 268 Ill. App. 3d at 467, 644

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N.E.2d at 789, quoting Schneckloth, 412 U.S. at 225, 36 L. Ed. 2d

at 862, 93 S. Ct. at 2047, quoting Culombe v. Connecticut, 367

U.S. 568, 602, 6 L. Ed. 2d 1037, 1057-58, 81 S. Ct. 1860, 1879

(1961). Custody alone is not sufficient to render a consent

involuntary. Alvarado, 268 Ill. App. 3d at 467, 644 N.E.2d at

789. In addition to custody, relevant factors for determining

whether a consent was involuntary include whether (1) the arrest

occurred late at night; (2) the officers made the arrest while

displaying weapons; (3) the arrest was made by forcible entry or

the use of force; (4) the defendant was handcuffed or kept in

close restraint; (5) the officers gained a key or similar means

of entry during a search incident to arrest for the place they

were asking to search; (6) the officers used the custody to make

repeated requests for consent; (7) the custody was used for

leverage, such as the officer telling the defendant that he would

be released if he consented; (8) the defendant knew or was told

he had the right to refuse consent; and (9) consent was obtained

after the officer refused to grant the defendant's request to

consult with counsel. Alvarado, 268 Ill. App. 3d at 467, 644

N.E.2d at 789, quoting 3 W. LaFave, Search & Seizure §8.2(b), at

183, §8.2(k), at 218 (2d ed. 1987), at 61 (Supp. 1994), and

citing People v. Phillips, 264 Ill. App. 3d 213, 217-18, 636

N.E.2d 1118, 1121 (1994).

In this case, the only relevant factors present are

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that defendant was in custody and handcuffed. None of the other

factors that might render the consent involuntary were proved.

See, e.g., Alvarado, 268 Ill. App. 3d at 468, 644 N.E.2d at 789

(finding that consent was not involuntary where the only factors

present were that the defendant was in custody and handcuffed).

Therefore, defendant's consent was voluntary and justified the

search of the residence.

The police officers in this case acted reasonably and

showed great restraint. Instead of immediately and forcibly

entering the house on the basis of exigent circumstances, the

officers began the process of obtaining a warrant and waited

patiently for 4 1/2 hours. The trial court erred by granting

defendant's motion to dismiss.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

order granting defendant's motion to suppress and remand for

further proceedings.

Reversed and remanded.

APPLETON, P.J., and McCULLOUGH, J., concur.

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