                                          2015 IL App (1st) 140093
                                                                                    THIRD DIVISION
                                                                                      March 31, 2015
     No. 1-14-0093


     THE PEOPLE OF THE STATE OF ILLINOIS                      )              Appeal from the
                                                              )              Circuit Court of
             Plaintiff-Appellant,                             )              Cook County
                                                              )
     v.                                                       )              11 CR 13619
                                                              )
     MILTRON BROWN,                                           )              Honorable
                                                              )              Noreen Valeria Love,
             Defendant-Appellee.                              )              Judge Presiding.


             JUSTICE MASON delivered the judgment of the court, with opinion.
             Presiding Justice Pucinski and Justice Hyman concurred in the judgment and opinion.


                                                 OPINION

¶1           Defendant-appellee Miltron Brown was indicted on multiple counts related to the

          possession of both a controlled substance and a weapon. Brown's motion to quash the search

          warrant and suppress evidence was granted. On appeal, the State contends that the trial court

          erred in granting the motion to quash the search warrant because the police officers'

          execution of the search warrant was protected under the good-faith exception to the

          exclusionary rule. We disagree and affirm the judgment of the circuit court of Cook County.

¶2                                            BACKGROUND

¶3           Brown filed two motions, one to quash his arrest and one to quash the search warrant.

          Separate suppression hearings were held on the two motions. The court denied Brown's

          motion to quash his arrest. At the hearing on the motion to quash the search warrant, Brown

          adopted the evidence previously presented at the hearing on the motion to quash his arrest.
     No. 1-14-0093

¶4         Evidence adduced at the two suppression hearings established that in the afternoon hours

        of July 25, 2011, Officer James Lazansky conducted surveillance on a specific unit in the

        apartment building at 7300 Ogden Avenue in Riverside, Illinois. The surveillance was in

        response to complaints regarding possible narcotics activity in unit 1F, the first-floor unit

        toward the front of the building. The complaints were general in nature and did not include a

        name or a description of an individual, but simply a description of the unit and unspecified

        suspected narcotics activity.

¶5         Officer Lazansky observed Brown exit unit 1F from a rear door that was only connected

        to that unit and get into a tan Buick. While running a check on the vehicle registration,

        Officer Lazansky followed Brown to a nearby restaurant. After Brown left the restaurant and

        was returning to the apartment, Officer Lazansky received information that the vehicle was

        registered to Brown and that his driver's license had been suspended. Officer Lazansky

        activated his emergency lights and pulled Brown over in the driveway of the apartment

        building.

¶6         While Officer Lazansky was standing outside the vehicle talking to Brown, he saw three

        pills in a clear plastic bag in the handle of the driver's door which he suspected were ecstasy.

        Brown was arrested and taken into custody. Officer Lazansky checked with the property

        manager for the apartment building and learned that unit 1F was leased to Brown.

¶7         Later that evening, Officer Lazansky returned to the apartment building to meet Officer

        Galarza and Galarza's certified canine. Unit 1F had two entrances, a back entrance that only

        led that unit and a front entrance that was accessed through a common entry door that also

        allowed access to other units.     There were four mail slots in the common entry door.

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



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          shut when the officers approached the building and they were able to gain access to the

          common area.

¶8            Officer Galarza's canine gave a positive alert at both the front and back doors of unit 1F,

          indicating the presence of narcotics inside the unit. Officer Lazansky then returned to the

          police station and prepared an affidavit for a search warrant. The warrant was reviewed and

          approved by an assistant State's Attorney and Officer Lazansky then contacted a judge to

          review the warrant and affidavit. The judge later approved the search warrant.

¶9           The trial court noted that there was nothing for the judge to rely on in the complaint for

          the search warrant except the canine sniff which, according to Florida v. Jardines, 569 U.S.

          ___, ___, 133 S. Ct. 1409, 1414-15 (2013), was unconstitutional. The court explained that

          without the canine sniff, there was no probable cause to support the warrant and "[i]f there is

          no probable cause to support the warrant, then police officers cannot use good faith to rely

          upon that warrant." The motion to quash the search warrant was granted. The State timely

          filed a certificate of substantial impairment and a notice of appeal.         See Ill. S. Ct. R.

          604(a)(1) (eff. Feb. 6, 2013).

¶ 10                                              ANALYSIS

¶ 11         Brown has not filed a brief on appeal despite multiple extensions and we have determined

          to resolve this appeal on the record and the State's brief alone. See First Capitol Mortgage

          Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (a reviewing court should

          decide the merits of the appeal where the record is simple and the claimed errors are such

          that the court can easily decide them without the aid of an appellee's brief).

¶ 12         When reviewing a trial court's ruling on a motion to quash and suppress, we defer to the

          trial court's factual findings and those findings will not be reversed unless they are against the


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          manifest weight of the evidence. People v. Close, 238 Ill. 2d 497, 504 (2010). However, we

          review de novo the ultimate decision to grant or deny the motion. Id. Where no dispute

          exists as to the underlying facts, our review proceeds de novo. Id.

¶ 13         Here, there is no factual dispute. Indeed, the State acknowledges that the Supreme Court

          held in Jardines that a warrantless canine sniff within the curtilage of a house, which enjoys

          the same constitutional protection as the house itself, violates the fourth amendment's

          prohibition against unreasonable searches and seizures. Jardines, 569 U.S. at ___, 133 S. Ct.

          at 1414-15. Rather, the State contends on appeal that because the Jardines decision was not

          issued until after the warrant in this case was obtained and executed, the execution of the

          search warrant was protected under the good-faith exception to the exclusionary rule.

¶ 14         As the trial court correctly noted, without the warrantless canine sniff, the police had

          nothing to establish the probable cause required for a search warrant. Officer Lazansky

          testified that the department received "complaints" of narcotics activity at a specific

          apartment, but no information was provided regarding the identity or reliability of the

          complainants and the complainants did not provide a name or description of the person

          allegedly engaging in unspecified narcotics activity. The police conducted surveillance of

          the apartment on one afternoon, during which time nobody arrived at the apartment and the

          only person seen leaving the apartment was Brown. After pulling Brown over for a traffic

          violation, Officer Lazansky saw a plastic bag with what appeared to be three ecstasy pills in

          the handle of the driver's side door. Nothing in these facts supports the requisite probable

          cause to obtain a search warrant for Brown's apartment. Therefore, the trial court's order

          granting the motion to suppress can be reversed only if the good-faith exception to the

          exclusionary rule applies.



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       No. 1-14-0093

¶ 15         Under the exclusionary rule, evidence that is gathered by the police in violation of the

          fourth amendment is inadmissible. People v. Sutherland, 223 Ill. 2d 187, 227 (2006). In

          United States v. Leon, 468 U.S. 897, 919-22 (1984), the Supreme Court held that the

          exclusionary rule does not bar evidence obtained by a police officer who reasonably relies, in

          objective good faith, on a search warrant issued by a neutral and detached magistrate but that

          is later found to be unsupported by probable cause. The Leon good-faith exception was

          adopted by our supreme court in People v. Stewart, 104 Ill. 2d 463, 477 (1984), and codified

          at section 114-12 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-12(b)(1),

          (b)(2) (West 2012)).

¶ 16         The State contends that under existing case law, "dog sniffs were entirely lawful in

          Illinois" prior to the Jardines decision; therefore, the State argues the officer reasonably

          relied on this precedent and the good-faith exception should apply.              In support of this

          argument, the State cites the Supreme Court's extension of the good-faith exception in Davis

          v. United States, ___ U.S. ___, ___, 131 S. Ct. 2419, 2429 (2011), to reliance on binding

          appellate precedent that specifically authorizes a particular police practice.

¶ 17         We reject the State's argument for two reasons. First, even if Illinois were to adopt the

          Davis extension of the good-faith exception, there is no precedent in Illinois allowing

          warrantless dog sniffs within the curtilage of a home.         Second, Illinois Supreme Court

          precedent indicates that our supreme court is not likely to adopt the Davis extension of the

          good-faith exception in any event.

¶ 18         In Davis, the search at issue (of a vehicle's passenger compartment incident to a recent

          occupant's arrest) was explicitly authorized by binding Eleventh Circuit precedent prior to

          the Supreme Court's holding that such a search was unconstitutional in Arizona v. Gant, 556

          U.S. 332 (2009). Davis, ___ U.S. at ___, 131 S. Ct. at 2428. In concurring with the

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          majority, Justice Sotomayor noted that Davis did not present "the markedly different question

          whether the exclusionary rule applies when the law governing the constitutionality of a

          particular search is unsettled."   Davis, ___ U.S. at ___, 131 S. Ct. at 2435 (Sotomayor, J.,

          concurring).

¶ 19               This court has considered whether the good-faith exception to the exclusionary rule

          applies to unconstitutional canine sniffs that occurred prior to Jardines in light of the

          Supreme Court's holding in Davis, and concluded that no binding appellate precedent

          authorized the officers' conduct and, therefore, the good-faith exception did not apply.

          People v. Burns, 2015 IL App (4th) 140006, ¶¶ 56-57, 60. We agree with the reasoning in

          Burns and also find instructive two federal appellate court decisions that have analyzed

          binding appellate precedent to determine whether the good-faith exception should apply,

          because those courts considered the circumstances surrounding the canine sniff in making

          such a determination. Compare United States v. Givens, 763 F.3d 987, 992 (8th Cir. 2014)

          (concluding the good-faith exception to the exclusionary rule applied because existing Eighth

          Circuit precedent determined that the use of a dog in the hallway of an apartment building to

          sniff around the door of an apartment did not violate the fourth amendment), with United

          States v. Hill, 776 F.3d 243, 250-51 (4th Cir. 2015) (concluding the good-faith exception to

          the exclusionary rule did not apply to the dog sniff of an apartment because existing Fourth

          Circuit precedent involved the sniff of a vehicle during a traffic stop and the sniff of a

          passenger train's sleeping compartment but no precedent existed involving a dog sniff of a

          home).

¶ 20         The Illinois precedent relied on by the State does not involve canine sniffs within the

          curtilage of a home. See People v. Bartelt, 241 Ill. 2d 217, 231 (2011) (canine sniff during a

          traffic stop); People v. Driggers, 222 Ill. 2d 65, 72-73 (2006) (same); People v. McPhee, 256

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          Ill. App. 3d 102, 112 (1993) (dog sniff of envelope); People v. Forrest, 172 Ill. App. 3d 385,

          391-92 (1988) (dog sniff of airline luggage). Likewise, the cases cited as federal precedent

          also do not involve canine sniffs within the curtilage of a home. See Illinois v. Caballes, 543

          U.S. 405, 408-09 (2005) (canine sniff during a traffic stop); United States v. Place, 462 U.S.

          696, 707 (1983) (dog sniff of luggage in a public place). Therefore, we do not agree with the

          State that dog sniffs – no matter where conducted – were "entirely lawful" in Illinois prior to

          Jardines.

¶ 21         We further reject the idea that it is reasonable to apply the same rules that govern

          searches of vehicles during traffic stops or luggage in public places to a search within the

          curtilage of a home. As the Supreme Court noted: "At the [Fourth] Amendment's very core

          stands the right of a man to retreat into his own home and there be free from unreasonable

          government intrusion." (Internal quotation marks omitted.) Jardines, 569 U.S. at ___, 133

          S. Ct. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). The curtilage

          or area immediately surrounding and associated with the home is "intimately linked to the

          home" and is where "privacy expectations are most heightened." (Internal quotation marks

          omitted.) Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (quoting California v. Ciraolo, 476

          U.S. 207, 213 (1986)).

¶ 22         Thus, even if we could predict that Illinois would adopt the Davis good-faith exception,

          there exists no binding appellate precedent in Illinois holding that canine sniffs within the

          curtilage of a home were constitutional prior to Jardines. Consequently, the good-faith

          exception does not apply and the trial court did not err in granting the motion to quash the

          search warrant and suppress the evidence.

¶ 23         Even if we were to conclude that appellate precedent regarding canine sniffs of vehicles

          during traffic stops and luggage in public places governed canine sniffs within the curtilage

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          of the home, it is unlikely that our supreme court would adopt the Davis good-faith exception

          in light of its refusal to adopt a previous Supreme Court extension of the good-faith

          exception to the exclusionary rule that implicated the constitutional rights of Illinois citizens.

¶ 24         In Illinois v. Krull, 480 U.S. 340 (1987), the Supreme Court extended the good-faith

          exception to statutes later declared unconstitutional. But in People v. Krueger, 175 Ill. 2d 60,

          73-74 (1996), our supreme court declined to adopt the Krull extension of the good-faith

          exception. In explaining that the adoption of the Krull extension for Illinois would be

          incompatible with our state constitution, our supreme court stated: "We are not willing to

          recognize an exception to our state exclusionary rule that will provide a grace period for

          unconstitutional search and seizure legislation, during which time our citizens' prized

          constitutional rights can be violated with impunity. We are particularly disturbed by the fact

          that such a grace period could last for several years and affect large numbers of people. This

          is simply too high a price for our citizens to pay." Id. at 75.

¶ 25         The supreme court later declined to extend the rationale in Krueger to anticipatory search

          warrants that were held to be statutorily invalid rather than constitutionally invalid. People v.

          Carlson, 185 Ill. 2d 546, 559 (1999). The court explained that such a situation did not

          subject Illinois citizens to a grace period during which their constitutional rights could be

          violated with impunity. Id.

¶ 26         In contrast, the supreme court refused to apply the good-faith exception to the

          exclusionary rule where a statute was declared unconstitutional because it violated the single

          subject rule, explaining that to do so would be to resurrect the amendment in question and

          provide a grace period during which Illinois citizens would have been subject to

          extraterritorial arrests without proper authorization. People v. Carrera, 203 Ill. 2d 1, 16

          (2002).    The majority reached this conclusion despite the dissent's point that the

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          constitutional infirmity in the statute did not spring from a violation of the fourth amendment

          or the defendant's rights under the Illinois Constitution. Id. at 22 (Garman, J., dissenting,

          joined by Fitzgerald and Thomas, JJ.).

¶ 27         As the dissent noted in Carrera, the exclusionary rule applies in Illinois when

          suppression of evidence would further the rule's purpose of deterring further police

          misconduct or when giving effect to legislation that violates the fourth amendment or the

          state constitution would permit the constitutional rights of Illinois citizens to be violated with

          impunity.    Id.   Here, rather than giving effect to legislation that was later declared

          unconstitutional, the issue is a search where the law governing the constitutionality of the

          search was not settled and the search was later declared unconstitutional, the very situation

          described in Justice Sotomayor's concurrence in Davis.          What the State urges here is

          expansion of the good-faith exception to the exclusionary rule based on an officer's belief

          that appellate precedent could be extended to cover a search. Such a result would expand the

          good-faith exception beyond recognition.

¶ 28         Moreover, the concerns underlying the decision in Krueger apply equally here where, if

          the exception is applied, there is a grace period during which the constitutional rights of

          Illinois citizens may be violated with impunity. In other words, applying the good-faith

          exception to an unconstitutional warrantless dog sniff within the curtilage of the home that

          occurred prior to the Jardines decision, even if binding appellate precedent allowed the

          practice, would allow the police a grace period during which the constitutional rights of

          Illinois citizens may be violated. We do not believe such an application comports with our

          supreme court precedent.

¶ 29                                            CONCLUSION



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¶ 30             Because the good-faith exception to the exclusionary rule does not apply, the trial

          court did not err in granting the motion to quash the search warrant and suppress the

          evidence.

¶ 31         Affirmed.




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