dissenting:
I agree with the majority’s conclusions that the barn was in the open fields, outside of the curtilage, and that Sherry White did not consent to the search. I disagree, however, with the majority’s conclusion that defendant had a reasonable expectation of privacy in the barn. The majority’s analysis on this issue is at odds with all of the state and federal cases that have considered searches of barns or outbuildings located on farm property lying outside of the curtilage of a farmhouse. I therefore dissent.
Initially, I note that defendant’s motion to suppress did not allege that he had a reasonable expectation of privacy in the barn. Nor did defendant specifically raise this issue in the trial court. Instead, defendant only alleged and argued that (1) police entered the premises without the consent of the owner or tenant; (2) police were trespassing when they came onto the property; and (3) there was no exigent circumstances to justify a warrantless search. The burden of proof is on the defendant at a hearing on a motion to suppress. 725 ILCS 5/114— 12(b) (West 2002); People v. Gipson, 203 Ill. 2d 298, 306 (2003). Only if the defendant makes out a prima facie case that the evidence was obtained through an illegal search does the burden shift to the State to counter with its own evidence. Gipson, 203 Ill. 2d at 306-07. Before a defendant can complain of a violation of the fourth amendment, he has to make a showing that he has a reasonable expectation of privacy in the place or thing being searched and that his expectation is reasonable. Minnesota v. Carter, 525 U.S. 83, 88, 142 L. Ed. 2d 373, 379, 119 S. Ct. 469, 472 (1998); Rakas v. Illinois, 439 U.S. 128, 149, 58 L. Ed. 2d 387, 405, 99 S. Ct. 421, 433 (1978).
Here, defendant did not make out a prima facie case showing that he had a reasonable expectation of privacy in the barn. Indeed, defendant did not even allege that he had a reasonable expectation of privacy in the barn in his motion to suppress. As defendant himself noted in the waiver portion of his brief, “[o]ne of the basic considerations supporting the rule preventing a party from raising issues for the first time on appeal is that ‘[t]he failure to urge a particular theory before the trial court will often cause the opposing party to refrain from presenting available pertinent rebuttal evidence’ which could have a bearing on the disposition in question.” See People v. McAdrian, 52 Ill. 2d 250, 254 (1972); see also People v. Holloway, 86 Ill. 2d 78, 91-92 (1981). This admonition is particularly appropriate here. Defendant’s failure to claim that he had a reasonable expectation of privacy in the barn likely impacted the proofs presented at the hearing on the motion to suppress. I would therefore find that, at the very least, any insufficiency in the record should be resolved in favor of the State. I would also find that the State correctly argued in its motion to reconsider that defendant had failed to meet the threshold requirement of showing that he had a legitimate expectation of privacy in the area searched.
On the merits, the majority in effect holds that a person who has a possessory interest in any kind of man-made structure lying outside of the curtilage of a farmhouse also has a reasonable expectation of privacy in the structure. Citing People v. Johnson, 114 Ill. 2d 170, 191-92 (1986), the majority notes several factors that should be used to determine whether a defendant possesses a reasonable expectation of privacy: (1) whether the defendant owned the property searched; (2) whether the defendant was legitimately present in the area searched; (3) whether the defendant had a possessory interest in the area searched or the property seized; (4) prior use of the area searched or the property seized; (5) the ability to control or exclude others’ use of the property; and (6) whether the defendant himself had a subjective expectation of privacy in the property. 211 Ill. 2d at 520-21. The majority then concludes that these factors favor a finding that defendant had a legitimate expectation of privacy in the barn.
The problem with the majority’s analysis is twofold. First, an evenhanded application of the Johnson factors to the present case should lead to the conclusion that defendant had no reasonable expectation of privacy in this particular barn. Second, the factors enunciated in Johnson are not meant to be an exhaustive list, nor are they necessarily the most important factors to be considered when determining whether a defendant possesses a reasonable expectation of privacy in a nonresidential structure that lies outside the curtilage of a farmhouse.
The question of whether defendant had a reasonable expectation of privacy in the area searched or the items seized must be resolved in view of the totality of the circumstances of the particular case. Johnson, 114 Ill. 2d at 192. The relevant facts and circumstances here, including the Johnson factors, show that defendant did not have a reasonable expectation of privacy in the barn. First, it was undisputed that defendant did not own the barn — Mary Pitman owned it. Second, defendant was not present at the barn at the time it was searched and the marijuana plants were discovered. Third, it does appear that defendant had a possessory interest in the area searched. However, a possessory interest, standing alone, is insufficient to establish a reasonable expectation of privacy. Johnson, 114 Ill. 2d at 192. Fourth, there is no evidence that defendant made any prior use of the property searched. Arguably, it could be said that defendant incidentally used the barn in connection with his cultivation of the marijuana plants outside the barn. However, an expectation of privacy based on illegal activity is not one that society is prepared to recognize as legitimate. Rakas v. Illinois, 439 U.S. 128, 143 n.12, 58 L. Ed. 2d 387, 401 n.12, 99 S. Ct. 421, 430 n.12 (1978). Fifth, there was no evidence presented that defendant had a right to exclude others from the barn. It was undisputed that defendant lived in a trailer on his mother’s farm and that he had power of attorney over the farmland enrolled in the federal conservation program. However, I do not believe that these facts establish that he had a right to exclude others from the barn. Furthermore, even if defendant had both a possessory interest in the property and the right to exclude others, this would not be sufficient in itself to show a reasonable expectation of privacy where the barn was no longer being used for agricultural purposes and was “wide open.” As I will explain more fully below, courts that have decided whether a defendant enjoyed a reasonable expectation of privacy in a barn outside the curtilage have looked to whether the barn was being put to a business use on behalf of the farm and whether defendant took any reasonable steps to effect privacy, such as closing and locking the barn doors. Finally, given the wide-open nature of the barn and defendant’s lack of use, it is clear defendant himself had no subjective expectation of privacy in the area searched. Defendant was not even effectively using the barn as a cover for his illegal activity, as he grew marijuana outside of the barn.
The majority cites to a footnote from Rakas for the proposition that “ ‘one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude.’ ” 211 Ill. 2d at 521-22, quoting Rakas, 439 U.S. at 143 n.12, 58 L. Ed. 2d at 401 n.12, 99 S. Ct. at 430 n.12. Rakas, however, did not involve a barn lying outside the curtilage of a farmhouse. Instead, it involved the question of whether passengers legitimately occupying a car, owned by someone else, had a reasonable expectation of privacy. The Court held that they did not. The portion of the footnote from Rakas quoted above is best understood by pointing out that it was inserted to explain the holding in Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), which found that a person need only be legitimately on the premises of a residential dwelling to challenge the validity of a search. The search here does not involve a residential dwelling, and a different analysis applies. See, e.g., United States v. Trickey, 711 F.2d 56, 58-59 (6th Cir. 1983) (when dealing with nonresidential property, fourth amendment protections are “less significant than they would be in the context of a home”).
Most all of the state and federal courts that have considered whether a reasonable expectation of privacy exists in a barn outside the curtilage have looked to whether the barn was still serving the agricultural purposes of the farm or to whether the owner or occupier had taken reasonable steps to effect privacy, such as closing and locking the barn doors. See, e.g., United States v. Dunn, 480 U.S. 294, 315, 94 L. Ed. 2d 326, 343-44, 107 S. Ct. 1134, 1146-47 (1987) (Brennan, J., dissenting, joined by Marshall, J.) (the Court assumed for the sake of argument that the defendant had a reasonable expectation of privacy in a barn outside the curtilage because the barn was an essential part of his farming business); United States v. Pennington, 287 F.3d 739, 746 (8th Cir. 2002) (upheld search, finding that the defendant had no reasonable expectation of privacy in an underground bunker located outside the curtilage where the structure had a readily visible entranceway and no lock or door impeding access); Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2001) (owners had a reasonable expectation of privacy in a barn that had doors on it, which were often kept locked); Trickey, 711 F.2d at 58 (defendant had a reasonable expectation of privacy in an outbuilding located on residential property because defendant took steps to protect his privacy by boarding up the windows); State v. Showalter, 427 N.W.2d 166, 170 (Iowa 1988) (defendant had reasonable expectation of privacy in barn where it was locked and nailed shut); People v. Weisenberger, 183 Colo. 353, 355-56, 516 P.2d 1128, 1129 (1973) (fourth amendment protections applied to a chicken house located on the defendant’s farm, where the structure “was being put to an active domestic use. It housed ten to fifteen laying hens and contained necessary feed and water for their maintenance”); State v. Thompson, 820 S.W.2d 591 (Mo. App. 1991) (no reasonable expectation of privacy in barn that was unlatched and had been put on the market for sale).
Even though the majority of the United States Supreme Court in Dunn accepted as true for the sake of argument the defendant’s assertion that the barn there enjoyed fourth amendment protection because it was an essential part of the defendant’s farm business, the Court declined to hold that the barn afforded an independent expectation of privacy apart from the farmhouse. In analyzing the point further, however, the dissent in Dunn noted the principle that a barn ought to be constitutionally protected if it is being used as part of a farming business. Dunn, 480 U.S. at 315, 94 L. Ed. 2d at 343-44, 107 S. Ct. at 1146-47 (Brennan, J., dissenting, joined by Marshall, J.). The dissent also noted that a barn used in farming operations ought to be protected “ ‘if the owner or occupier takes reasonable steps to effect privacy.’ ” Dunn, 480 U.S. at 315, 94 L. Ed. 2d at 344, 107 S. Ct. at 1146-47 (Brennan, J., dissenting, joined by Marshall, J.), quoting United States v. Dunn, 766 F.2d 880, 885 (5th Cir. 1985).
Here, the record is quite clear that the barn was no longer used in farming operations and that neither defendant nor anyone else took any reasonable steps to protect the privacy of the barn’s interior. Officer Lewis testified that the barn had large doors on the east and west sides. The barn doors on the east side were wide open, “at least 10 to 12 feet if not more.” The south side of the barn was “open to the air.” The barn was not being used to feed and shelter livestock, and there was no farm machinery inside. The only things inside were a couple of old rolls of carpet and loose straw. Officer Reels testified that the barn was between 100 and 200 yards from defendant’s trailer. The barn doors on the front and back sides were wide open, with openings of about 20 feet. He also noted that the south side of the barn did not even have a wall — it was a three-sided building that was open on the south side. Under these facts, I can only conclude that defendant had no reasonable expectation of privacy in this particular barn. I also note that the totality of the circumstances here clearly distinguish this case from any other reported case where a defendant was found to have a reasonable expectation of privacy in a barn or other farm structure.
Citing Wilson v. Health & Hospital Corp. of Marion County, 620 F.2d 1201, 1212 (7th Cir. 1980), the majority states that “[t]he fact that parts of the barn’s interior were visible did not mean that defendant threw open the interior of the barn to general public scrutiny.” 211 Ill. 2d at 522. By this, the majority means to imply that it is irrelevant to the fourth amendment analysis that the barn doors were open by as much as 20 feet and that the structure was missing an entire wall on the south side. This is a truly remarkable position given the federal and state authority to the contrary as noted above. It is even more remarkable when considering that Wilson did not involve a structure on farm property lying outside the curtilage. Rather, it involved a residence that had been damaged in a fire. In that case, the door of the residence was not secured by the fire department after it left the
scene. Wilson was a civil case. It held only that just because the door was unsecured, leaving unspecified portions of the interior visible, did not “necessitate” the conclusion on summary judgment that an expectation of privacy by the plaintiff was objectively unreasonable. Wilson, 620 F.2d at 1212. Wilson has no application here, as a person obviously has a reasonable expectation of privacy in his dwelling place regardless of whether he leaves his doors open or unlocked, and the case has nothing to do with a structure lying outside the curtilage of a farmhouse.
Rather than relying on the factually inapposite 1980 decision of the Seventh Circuit in Wilson, the majority should have discussed the more relevant and recent decisions of the Seventh Circuit in Siebert, of the Eighth Circuit in Pennington, and of the Sixth Circuit in Trickey. Each of these cases resolved the reasonable expectation of privacy issue by placing the utmost emphasis on whether or not the owners and possessors of farm and business structures took sufficient steps to impede access to those structures. Siebert, 256 F.3d at 654; Pennington, 287 F.3d at 746; Trickey, 711 F.2d at 58.
From these cases, it is also clear that no federal court would hold, as the majority does, that a possessory interest, plus the right to exclude others, automatically creates a reasonable expectation of privacy in a wide-open, three-sided barn lying in open fields. Presumably, the majority would find a reasonable expectation of privacy in any structure, no matter how dilapidated and open to view, as long as the possessor has a right to exclude others. This is a conclusion that finds no precedent in fourth amendment law.
For the foregoing reasons, I would affirm the judgment of the appellate court. I believe it was correct when it determined that defendant had no reasonable expectation of privacy in this particular barn because there were “no facts that defendant utilized the barn itself,” the barn “was not secured,” its doors were “wide open as well as an open side,” and “the barn was no longer used for agricultural purposes.” See No. 4 — 01—0620 (unpublished order under Supreme Court Rule 23). Accordingly, I respectfully dissent.