                        Illinois Official Reports

                                Appellate Court



                   People v. Brown, 2015 IL App (1st) 140093



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption            MILTRON BROWN, Defendant-Appellee.



District & No.     First District, Third Division
                   Docket No. 1-14-0093



Filed              March 31, 2015
Rehearing denied   April 28, 2015




Decision Under     Appeal from the Circuit Court of Cook County, No. 11-CR-13619; the
Review             Hon. Noreen Valeria Love, Judge, presiding.




Judgment           Affirmed.




Counsel on         Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal             Sari London, and Joan F. Frazier, Assistant State’s Attorneys, of
                   counsel), for the People.

                   Law Office of Michael D. Walsh, of Chicago (Michael D. Walsh, of
                   counsel), for appellee.
     Panel                    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.
¶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 to 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


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       key was required to open the front entrance door, it was not pulled all the way 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
       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


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       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.
¶ 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, 564 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, 564 U.S. at ___, 131 S. Ct. at 2428. In concurring with the 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, 564 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).


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¶ 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
       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 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.


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¶ 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 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
¶ 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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