                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Lyons, 2013 IL App (2d) 120392




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



District & No.             Second District
                           Docket No. 2-12-0392


Filed                      June 10, 2013


Held                       In a prosecution for possession of child pornography, the trial court’s
(Note: This syllabus       denial of defendant’s motion to suppress computer disks his wife gave to
constitutes no part of     the police was upheld, since the record showed the disks were kept in a
the opinion of the court   cabinet in the home defendant shared with his wife and children,
but has been prepared      defendant’s wife, pursuant to Matlock, was presumed to have a right of
by the Reporter of         access to the cabinet and its contents, especially in the absence of any
Decisions for the          directives from or security measures by defendant reserving the cabinet
convenience of the         or disks to himself, and her consent to a search of the disks was valid.
reader.)


Decision Under             Appeal from the Circuit Court of Kendall County, No. 08-CF-462; the
Review                     Hon. Grant S. Wegner and the Hon. John A. Barsanti, Judges, presiding.



Judgment                   Affirmed.
Counsel on                 Ned C. Khan, of Law Offices of Ned C. Khan, of Aurora, for appellant.
Appeal
                           Eric C. Weis, State’s Attorney, of Yorkville (Lawrence M. Bauer and
                           Edward R. Psenicka, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Justices Zenoff and Hudson concurred in the judgment and opinion.




                                            OPINION

¶1          Following a bench trial, defendant, Kevin Lyons, was convicted of possession of child
        pornography. He appeals the denial of his motion to suppress evidence in the form of
        electronic media that his wife gathered from their home and delivered to the police. For the
        following reasons, we affirm.

¶2                                        BACKGROUND
¶3           In January 2009, defendant was indicted on multiple counts of possession of child
        pornography (720 ILCS 5/11-20.1(a)(6) (West 2008)). In March 2009, he filed a motion to
        suppress “two boxes of miscellaneous computer floppy disks and CD/DVDs” that his wife,
        Mona Lyons (Lyons), had brought to the police station in October 2008.
¶4           The trial court heard the motion on May 4, 2009. Yorkville police sergeant Larry Hilt
        testified that, on October 27, 2008, Lyons came to the Yorkville police station. At
        approximately 3 p.m. that day, he spoke with Lyons, who reported she had concerns about
        defendant. Lyons related that she had expelled defendant from the family home three days
        earlier. Defendant had been residing with Lyons, Ka. L., their biological daughter, and Ke.
        L., Lyons’ daughter from a different relationship. Lyons told Hilt that she had expelled
        defendant from the home because Ka. L. had said that defendant touched her inappropriately.
        Lyons also recounted to Hilt that, approximately one year before her meeting with Hilt, she
        caught defendant masturbating in their home while at his computer. Defendant was holding
        three pairs of Ke. L.’s underwear and saying “something about [Ke. L.’s] tight ass and that
        she wanted him.” Lyons was “fairly far away” from the computer but could see that
        defendant was viewing an image of a “young girl” on the screen as he masturbated and spoke
        about Ke. L. Hilt noted that Lyons did not say what she believed was the age of the young
        girl or whether she believed that the image was pornography. Lyons reported that, after she
        caught defendant, she told him she wanted him to leave. Defendant replied that he would
        agree to go to counseling. Defendant continued to reside with Lyons. Lyons told Hilt that she


                                                 -2-
     later expelled defendant after Ka. L. made her accusation.
¶5        Hilt further testified that, at the end of the interview, Lyons gave him two boxes
     containing various floppy disks and DVDs (collectively, disks). Lyons informed him that the
     disks “all belong[ed] to [defendant]” except for one that might have belonged to Ke. L.
     According to Hilt, Lyons said that “she didn’t have an ownership interest in [the] disks.”
     Later in his testimony, however, Hilt clarified that Lyons never used the phrase “ownership
     interest.” According to Hilt, “the only indication that [he] had regarding ownership of the
     disks” was that Lyons told him they belonged to defendant. Hilt further indicated that Lyons
     said that the disks “were stored in a metal cabinet in a family[-]type room” in the family
     home along with defendant’s two computers. Defendant “put in a password [on the
     computers] so she couldn’t use [them].” Lyons did not know the password. Regarding the
     metal cabinet, Lyons said that defendant “usually kept [it] locked” but that she and defendant
     each had a key. Lyons told Hilt that she did not know what was on the disks, but that she
     “didn’t want them in her house.” Hilt took the two boxes of disks “for safekeeping.”
¶6        According to Hilt, Lyons said that, on October 25, one day after she expelled defendant
     from the family home, she obtained an order of protection against him. That same day,
     defendant contacted the police himself and said he wanted to retrieve his computers from the
     residence. The police then contacted Lyons and told her that she would have to let defendant
     have his computers. On October 25, defendant returned to the residence and retrieved various
     computer hardware, including towers, monitors, and keyboards. According to what Lyons
     related to Hilt, defendant did not ask for or take any of the disks. Later, on December 10,
     2008, defendant’s attorney faxed to the police a list of property that he wanted returned. The
     list described, inter alia, disks in a metal cabinet.
¶7        Hilt described what he did with the disks following his meeting with Lyons. Hilt put the
     disks “on the back burner” because he was more concerned with the possibility that
     defendant sexually molested Ka. L. On November 12, 2008, Hilt began to inspect the
     contents of the disks. Hilt did not seek a warrant beforehand and had no “information about
     what was contained on the disks.” Hilt further acknowledged that he never informed
     defendant that the police possessed the disks. Hilt testified as follows as to why he believed
     he had authority to search the disks:
              “Q. Officer, you testified that Mona Lyons gave you consent to search these disks,
          correct?[1]
              A. She did not actually, no.
              Q. She did not give you consent?
              A. No.
              Q. So you just searched these on your own authority, correct?
              A. No.
              Q. Why did you think you could search them?
              A. Because it was my impression that she left them at the police department as

            1
             Actually, Hilt had given no such testimony.

                                              -3-
           abandoned property.
               Q. Okay. She left them as abandoned property. That’s what your belief was?
               A. I believe that she gave them to me so they could be searched.
               Q. But she never told you that you could search these, correct?
               A. Correct.
               Q. And she told you that these didn’t belong to her, they belonged to [defendant], her
           husband, correct?
               A. Correct.”
       On November 12, Hilt searched several of the disks but found nothing illegal. That same day,
       he gave the disks to Yorkville police officer Jon Helland for assistance in searching them.
       Two days later, Helland informed Hilt that he had found materials resembling child
       pornography. On November 18, Hilt and Helland obtained a search warrant that simply
       described the disks Lyons had given Hilt. After searching more of the disks, Hilt and Helland
       found further materials resembling child pornography. According to Hilt, none of the data
       on the disks was protected by password. On December 15, 2008, Hilt and Helland obtained
       a search warrant for defendant’s computer hardware. Meanwhile, on December 14, 2008,
       defendant, by court permission, returned to the family home to retrieve some of his
       belongings. The police had returned the boxes of disks to the home, and when defendant took
       possession of the boxes, he was arrested.
¶8         Lyons testified next. She stated that, when she met with Hilt on October 27, 2008, she
       told him that Ka. L. had accused defendant of touching her inappropriately. Lyons also told
       Hilt of an earlier occasion where she caught defendant “watching pornography on the
       computer of a young girl” while he was masturbating with Ke. L.’s underwear and “saying
       something about her tight ass and you want me.” Lyons could see that the girl on the screen
       was young, but was not sure how old she was, and so Lyons was not positive that “it was
       actually [child] pornography.” Lyons told Hilt that she expelled defendant from the family
       home on October 24 and that, the next day, defendant returned for his computers but
       retrieved nothing else.
¶9         Lyons stated that, at the October 27 meeting, she gave Hilt two boxes of disks. The disks
       were taken from “a back room [in the family home] that would be considered maybe a family
       room.” Specifically, the disks were stored in a metal cabinet that was normally locked. Lyons
       and defendant each had a key to the cabinet. Also in the room with the metal cabinet were
       defendant’s two computers. Lyons recalled that she told Hilt that the disks “were
       [defendant’s].”
¶ 10       At the close of evidence, defendant argued that Lyons had no authority to consent to the
       search of the disks that she brought to Hilt. Further, defendant argued that the police would
       not have had probable cause to seize and search the disks on their own.
¶ 11       In response, the State argued several theories. In addition to challenging defendant’s
       claims of lack of consent and probable cause, the State argued the alternative theories that
       defendant abandoned the disks and that the police search of them was justified on
       community-caretaking grounds.


                                                -4-
¶ 12       The trial court made an oral ruling denying the motion to suppress. First, the trial court
       rejected the theories of abandonment and community caretaking. Second, the court
       determined that Lyons consented, and had authority to consent, to a search of the disks.
       Beginning with the predicate finding that “[c]learly, [Lyons] gave the disks to [Hilt] for
       purposes of searching their content,” the court distinguished two issues. First, the court
       determined that, since Lyons “had a key to the locked cabinet and there were no explicit
       instructions to not allow anyone into the cabinet,” she had “the right to consent to [a] search
       [of] the cabinet.”2 The court next determined that Lyons “had authority to consent to the
       search of the disks.” The court reasoned:
           “[I]t would appear that the disks were not secured or protected, nor was there evidence
           presented which would indicate that the defendant had given explicit instructions not to
           allow anyone to view the disks.”
¶ 13       Lastly, the court alternatively found that the police would have had probable cause to
       seize the disks.
¶ 14       At defendant’s bench trial, he renewed his motion to suppress. Lyons testified
       consistently with her testimony at the suppression hearing. She additionally testified that she
       did not own a computer in October 2008, that she is “computer illiterate,” and that she does
       not know how to download data from a computer to portable media such as a floppy disk or
       DVD.
¶ 15       Both Lyons and Hilt testified that, on December 8, 2008, she made, at the behest of the
       police, a call to defendant to arrange for his retrieval of items left at the house. Hilt recorded
       the phone conversation, a transcript of which was admitted into evidence at trial. During the
       conversation, Lyons offered to gather items for defendant to take when he arrived. Defendant
       told Lyons he wanted the “disks” and also declared that “almost everything in the cabinet”
       belonged to him.
¶ 16       During his testimony, Hilt was asked whether the December 8 conversation was the first
       mention he heard of a metal cabinet where the disks were stored. Hilt believed that Lyons
       might have mentioned the metal cabinet when he first spoke with her in October 2008. Hilt
       was then shown his police reports in the case, and he admitted that the metal cabinet was first
       mentioned in association with the December 8 conversation. Hilt admitted that, if Lyons had
       told him earlier about the cabinet, he “probably” would have recorded her statement in his
       reports, as it would have been “an important fact.”
¶ 17       Based on Hilt’s admissions at trial, defendant argued that, when Hilt received the disks
       from Lyons (in October 2008) and later searched them (in November 2008), he did not have
       information to suggest that Lyons had authority to consent to a search of the disks. The trial
       court denied the renewed motion to suppress.
¶ 18       Following the remainder of the evidence, the court convicted defendant of possession of
       child pornography. He filed this timely appeal.


               2
               There was no actual police search of the cabinet. Apparently, the trial court was analyzing
       whether Lyons had authority both to take the disks from the cabinet and to consent to their search.

                                                  -5-
¶ 19                                         ANALYSIS
¶ 20       Defendant challenges, on several grounds, the trial court’s denial of his motion to
       suppress. We employ a bifurcated standard in reviewing a ruling on a motion to suppress.
       People v. Clendenin, 238 Ill. 2d 302, 328 (2010). The trial court’s factual findings will be
       sustained unless they are against the manifest weight of the evidence. Id. “The reviewing
       court then assesses the established facts in relation to the issues presented and may draw its
       own conclusions in deciding what relief, if any, should be granted.” Id. Accordingly, we
       review de novo the ultimate legal question of whether suppression is warranted. Id.
¶ 21       The State raises the threshold issue of whether the constitutional restriction on searches
       and seizures was even implicated here. Both the fourth amendment to the United States
       Constitution and article I, section 6, of the Illinois Constitution protect citizens from
       unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. The
       State asserts that “it cannot be argued that [Lyons] was acting as an agent for the police when
       she collected the disks and turned them over to the police.” The State cites authorities
       stemming from Coolidge v. New Hampshire, 403 U.S. 443 (1971), and holding that, where
       a private individual, not “act[ing] as an ‘instrument’ or agent of the state” (id. at 487)
       delivers evidence to the police, there has been no seizure under the fourth amendment. We
       agree that Lyons was not acting as an agent of the State when she delivered the disks to the
       police. If, then, the incriminating nature of the disks had been immediately apparent to the
       police, no justification would have been needed for further police action with respect to
       them. See Commonwealth v. Harris, 817 A.2d 1033, 1048 (Pa. 2003) (the police’s reading
       of letters delivered by a private individual did not constitute a search implicating the fourth
       amendment). The import of the disks was not obvious, however, but rather the police
       employed technology to discern their contents. If Lyons had searched even one of the disks
       and told the police that she suspected it contained child pornography, the State might have
       had a colorable argument that the police search of the disks did not exceed the scope of the
       prior, private search. See People v. Phillips, 215 Ill. 2d 554, 566 (2005) (“the fourth
       amendment does not prohibit the government from using information discovered by a private
       search, because the private search has already frustrated any expectation that the information
       will remain private”; where a private search has already occurred, the question is whether the
       police search exceeded the scope of the private search); Rann v. Atchison, 689 F.3d 832, 836-
       37 (7th Cir. 2012) (“ ‘police exceed the scope of a prior private search when they examine
       a closed container that was not opened by the private searche[r]s unless the police are already
       substantially certain of what is inside that container based on the statements of the private
       searche[r]s, their replication of the private search, and their expertise’ ” (quoting United
       States v. Runyan, 275 F.3d 449, 463 (5th Cir. 2001))). Lyons, however, told Hilt that she did
       not know what any of the disks contained. Evidently, then, she had not searched the disks
       herself. As there was no private search, defendant’s expectation of privacy in the contents
       of the disks had not already been frustrated when the police search occurred. Consequently,
       the police search of the disks implicated the fourth amendment and, therefore, was subject
       to constitutional restraints.
¶ 22       The trial court determined that the search of the disks was justified by Lyons’ consent.

                                                -6-
       “A well-settled, specific exception to the fourth amendment’s warrant requirement is a search
       conducted pursuant to consent.” People v. Pitman, 211 Ill. 2d 502, 523 (2004). The State has
       the burden of proving by a preponderance of the evidence that valid consent was given.
       People v. Miller, 346 Ill. App. 3d 972, 986 (2004).
¶ 23        Defendant argues as an initial matter that Lyons did not, in fact, grant the police
       permission to search the disks. Hilt testified both that he believed that Lyons left the disks
       “as abandoned property” and that he believed that “she gave them to [him] so they could be
       searched.” The trial court expressly found that Lyons gave the police the disks so that they
       could search them. We will disturb this finding of historical fact only if it is against the
       manifest weight of the evidence. Disputing this finding, defendant states:
            “The record is clear that [Hilt] never expressly asked [Lyons] if he could search the
            computer disks that she gave to him. The record is equally clear that [Lyons] never
            expressly told [Hilt] that he had permission to search the computer disks. For this search
            to be deemed valid, the court would have to imply the request to search from [Hilt] and
            imply the consent to search from [Lyons].”
       Defendant cites authority from the Ninth Circuit Court of Appeals holding that, where the
       police have not specifically requested permission to enter a private dwelling, consent to enter
       will not be inferred from the defendant’s failure to object. See United States v. Shaibu, 920
       F.2d 1423, 1428 (9th Cir. 1990). This federal precedent is neither binding (Bowman v.
       American River Transportation Co., 217 Ill. 2d 75, 91-92 (2005)) nor persuasive, as the facts
       are materially different from this case. We are dealing here not with unsolicited police entry
       into a private dwelling, but with a purely voluntary delivery of items to the police. Not only
       has defendant cited no apposite authority, but the pertinent authority cited by the State
       defeats his claim. See People v. McCracken, 30 Ill. 2d 425, 429 (1964) (“when defendant
       willingly handed over the articles to the officer at his request[,] this action implied consent
       to the examination [by the police]”). Accordingly, we will not disturb the trial court’s finding
       that Lyons in fact granted the police permission to search the disks.
¶ 24        Next, defendant argues that Lyons had no authority to consent to a search of the disks.
       The State relies, as did the trial court, on the concept of “common authority.” In United
       States v. Matlock, 415 U.S. 164, 171 (1974), the United States Supreme Court held that
       “when the prosecution seeks to justify a warrantless search by proof of voluntary consent,
       it is not limited to proof that consent was given by the defendant, but may show that
       permission to search was obtained from a third party who possessed common authority over
       or other sufficient relationship to the premises or effects sought to be inspected.” The Court
       explained that common authority is
            “not to be implied from the mere property interest a third party has in the property. The
            authority which justifies the third-party consent does not rest upon the law of property,
            with its attendant historical and legal refinements [citations] but rests rather on mutual
            use of the property by persons generally having joint access or control for most purposes,
            so that it is reasonable to recognize that any of the co-inhabitants has the right to permit
            the inspection in his own right and that the others have assumed the risk that one of their
            number might permit the common area to be searched.” Id. at 171 n.7.


                                                 -7-
       Common authority may be actual or apparent. Miller, 346 Ill. App. 3d at 985. In assessing
       whether apparent authority exists, the court determines “whether the circumstances known
       to the police at the time of the entry or opening would warrant a person of reasonable caution
       in the belief that the consenting party had authority over the premises or effects.” Id. at 986
       (citing Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990)). Defendant claims that Hilt’s
       testimony at trial calls into question whether he or Helland knew, before their search of the
       disks, that Lyons had acquired them from a cabinet to which she and defendant both had
       access. Hilt’s trial testimony might indeed impact whether Lyons appeared to him to have
       authority to consent to a search of the disks. Lyons herself testified, however, that she did,
       in fact, have access to the cabinet. In discussing the issue of consent, the trial court appeared
       to rely on the relationship it found to have actually existed between Lyons and defendant and
       his possessions. The court did not distinguish actual from apparent authority. On our reading
       of its analysis, the court found actual authority and did not address the issue of apparent
       authority. Inasmuch as we uphold the finding of actual authority, we need not, and will not,
       address whether apparent authority existed.
¶ 25        In explaining why we uphold the finding of actual authority, we begin with an important
       point that defendant raises on the issue of third-party consent: common authority over an area
       does not necessarily include authority over closed containers within that area. For this
       proposition, defendant cites Miller, which derived it from a concurring opinion in United
       States v. Karo, 468 U.S. 705, 724 (1984) (O’Connor, J., concurring in part and concurring
       in the judgment, joined by Rehnquist, J.): “A homeowner’s consent to a search of the home
       may not be effective consent to a search of a closed object inside the home.” In Miller, the
       defendant was the house guest of Michael DeMong, who owned the house but resided
       elsewhere. DeMong permitted the defendant to store items in a cabinet that DeMong himself
       was using for some of his possessions. DeMong secured the cabinet with a padlock and
       provided the defendant the only two keys to the cabinet. When DeMong wished to access the
       cabinet, he would pry it open or ask the defendant to open it for him. Miller, 346 Ill. App.
       3d at 976. One day, DeMong reported to the police that he had seen contraband inside the
       cabinet. The police followed DeMong to the house and, with his consent, forcibly opened the
       cabinet. Inside, the police found a closed duffel bag, which DeMong immediately identified
       as belonging to the defendant. The police opened the bag and found contraband within. Id.
       at 976, 983.
¶ 26        The appellate court held that, though DeMong had access to the cabinet, he lacked actual
       or apparent authority to consent to a search of the duffel bag. The court cited the principle
       from the Karo concurring opinion, contextualizing it as follows: “[W]hen a guest in a private
       home has a private container to which the homeowner has no right of access, the homeowner
       lacks the power to give effective consent to a search of the closed container.” Id. at 986. The
       court went on:
                “DeMong did not have actual authority to consent to a search of the duffel bag. ***
            The State presented absolutely no proof whatsoever that defendant actually conferred
            upon DeMong ‘joint access or control’ over the duffel bag. To the contrary, when the
            police opened the locked storage cabinet and found the duffel bag, DeMong disavowed
            any ownership interest in the bag, informing the police that the bag belonged to

                                                 -8-
           defendant. [Citation.]
                In addition, the State failed to demonstrate that DeMong had apparent authority to
           consent to a search of the duffel bag. *** If the facts available to the officers at the time
           of the search would not warrant a person of reasonable caution in the belief that the
           consenting party had authority over the object sought to be inspected, then warrantless
           entry without further inquiry is unlawful unless authority actually exists. [Citation.] ***
           As soon as DeMong informed police that the bag was not his, it was incumbent upon the
           officers to make further inquiry into whether DeMong had ‘common authority’ over the
           duffel bag. The officers did not make this inquiry. The officers did not ask DeMong
           whether he stored any possessions in the duffel bag or made use of the duffel bag for any
           purpose. [Citation.] Accordingly, we find that the State failed to sustain its burden of
           demonstrating that DeMong had apparent authority to consent to a search of the duffel
           bag found in the storage locker.” Id. at 987-88.
¶ 27       Defendant relies on the following factual similarities between Miller and the present case.
       In both cases, the consenting party and the defendant shared access to a space (a cabinet), and
       the police searched a container that was either currently located within that space or
       previously retrieved from it by the consenting party. In both cases, the consenting party
       informed the police, prior to the search, that the container did not belong to him or her.
       Miller is not controlling here, however. The more pertinent cases are those in which the
       consenting party and the defendant are spouses or unmarried cohabitants.
¶ 28       We begin with the Supreme Court’s decision in Matlock. The defendant in Matlock was
       arrested on the front lawn of a house. The police believed that he was living in the house, but
       did not ask his consent to enter. Rather, the police went to the front door and were greeted
       by Gayle Graff, who resided in the house with the defendant and several others. Graff
       “consented voluntarily to the search of the house, including the east bedroom on the second
       floor which she said was jointly occupied by [the defendant] and herself.” Matlock, 415 U.S.
       at 166. The police searched the east bedroom on the second floor and found “$4,995 in cash
       *** in a diaper bag in the only closet in the room.” Id. at 166-67. There was evidence at the
       suppression hearing that the defendant and Graff had resided together for months before the
       search, that they had held themselves out as husband and wife, and that when the police
       searched the bedroom they found items used by males and females. Id. at 168-69. The trial
       court ruled some of this evidence inadmissible and suppressed the money seized from the
       bedroom. Id. at 167-68. The Court reversed the evidentiary rulings and remanded the case
       for the trial court to consider the suppression motion in light of the admissible evidence. Id.
       at 177-78. The Court commented, however, that, based on the admissible evidence, the
       prosecution sustained its burden of proving that Graff had actual authority to consent to a
       search of the diaper bag in the closet. Id. at 177.3
¶ 29       Matlock was cited by our supreme court in People v. Stacey, 58 Ill. 2d 83, 85-86 (1974),
       the facts of which the court succinctly stated as follows:


               3
                The Court commented that it need not consider the issue of Graff’s apparent authority to
       consent. Id. at 177 n.14.

                                                 -9-
                “Mrs. Todd was murdered on November 22, 1957. Defendant was a photographer
           who had an appointment to photograph Mrs. Todd’s baby at her home. The police
           arrested the defendant in his home at about 9 p.m. the same evening and, after
           questioning him, noticed scratches on his arm, his nose and a spot of blood on his
           undershirt. Police officers were then sent to the defendant’s home to obtain the shirt he
           had been wearing that day. At the hearing on the motion to suppress, the defendant’s wife
           testified that her husband had changed shirts during the day and that during the evening
           he had informed her that the shirt ‘is in the bottom drawer.’ After the police had taken
           the defendant to the police station she went into their bedroom, took the shirt from the
           bottom drawer of the dresser, looked at it and then put it back in the drawer. Later when
           her father came to their apartment she again took the shirt from the bottom drawer and
           showed it to him. Her father told her that she should not let her mother take the shirt to
           be washed with the other clothes because it might have something to do with what the
           police were talking to the defendant about. When the policemen asked her for the shirt
           she went to the bedroom and obtained the shirt from the bottom dresser drawer and gave
           it to them. The policemen did not go into the bedroom.”
¶ 30       The court held that the evidence established that the defendant’s wife had common
       authority over the bedroom, including the dresser drawer from which she took the shirt:
           “Although the evidence shows that the bottom dresser drawer from which the shirt was
           taken was used by the defendant alone, the dresser was located in the bedroom mutually
           used by the defendant and his wife. Instead of establishing limited access to and control
           of the bedroom, the dresser, or the bottom drawer of the dresser, the evidence establishes
           a mutual use and control of the room and its equipment and the wife’s right of access to
           the bottom dresser drawer. The dresser was not locked and the wife was not instructed
           not to look into the drawer. To the contrary, the defendant told his wife that the shirt was
           in the bottom drawer, and her conduct in opening the drawer, looking at the shirt,
           returning it, and then subsequently again removing it from the drawer to show it to her
           father and again returning it, indicates that she had free access to this drawer. The mere
           fact that the defendant alone may have used this dresser drawer while his wife may have
           used another or another dresser does not indicate that the wife was denied the mutual use,
           access to or control of the drawer.
                *** [W]e must hold that in view of the mutual use of the bedroom, the wife’s right
           to access the dresser drawer located in that room, the defendant’s disclosure to his wife
           that the shirt was in the drawer and his lack of instruction denying her and others access
           to the drawer, the defendant clearly assumed the risk that his wife would consent to a
           search of the room, including the bottom dresser drawer from which the blood-stained
           shirt was taken.” Id. at 89-90.
¶ 31       For purposes of comparing the present case to Matlock, Stacey, and Miller, we view the
       disks as “containers” analogous to the diaper bag in Matlock, the dresser drawer in Stacey,
       and the duffel bag in Miller. We note that the starting principle in Miller (the case on which
       defendant relies) was that, on the question of third-party consent, control over a space does
       not necessarily translate to control over discrete containers within that space. The court in
       Miller had proof that DeMong, the consenting party, had access to the cabinet, but the court

                                                -10-
       would not thereby presume that DeMong had authority over the duffel bag inside. Rather,
       the court required independent proof that DeMong had authority over the bag. Not only did
       the State fail to produce evidence that DeMong’s control extended to the duffel bag, but there
       was positive evidence that the bag did not belong to DeMong. In Matlock, by contrast, the
       Court did apply a presumption of authority and control. The Court believed that sufficient
       evidence of Graff’s authority over the containers within the bedroom closet lay in the fact
       that she and Graff were cohabitants (holding themselves out as husband and wife) who
       shared the bedroom. The Court required no further proof to justify the police search of the
       diaper bag within the bedroom closet.
¶ 32        Professor Wayne R. LaFave interprets our supreme court’s decision in Stacey as
       following “the Matlock assumption of risk approach,” under which “the question is not
       whether the object seized was a personal effect of the nonconsenting spouse, but rather
       whether the object was kept in a place devoted to his exclusive use.” 4 Wayne R. LaFave,
       Search and Seizure § 8.4(a), at 261-62 (5th ed. 2012). Moreover, “the requisite exclusive use
       is not established by the mere fact that only the other spouse had theretofore made it a
       practice to use the particular area searched; something more specific by way of a showing
       that the consenting spouse was denied access is required.” Id. at 262; see United States v.
       Duran, 957 F.2d 499, 505 (7th Cir. 1992) (“a spouse presumptively has authority to consent
       to a search of all areas of the homestead; the nonconsenting spouse may rebut this
       presumption only by showing that the consenting spouse was denied access to the particular
       area searched”). The Seventh Circuit Court of Appeals has suggested that it is the intimacy
       of the marital relationship that justifies a presumption of common authority that is not
       appropriate in the case of mere roommates or house guests (e.g., the Miller case). See Duran,
       957 F.2d at 504-05. (Of course, from Matlock we see that the presumption is appropriate in
       the case of certain unmarried cohabitants.)
¶ 33        We agree with Professor LaFave that Stacey employs the Matlock presumption. Under
       Illinois law, proof that spouses have common authority over a space is, without more,
       rebuttable proof that each spouse has authority not only over containers within that space that
       are jointly owned or used by the spouses, but also over containers owned or in practice used
       by one spouse alone. The presumption does not require the State to prove that the spouse
       who solely owns or uses the container has specifically authorized the other spouse to access
       it; the presumption arises simply from the fact of common authority over the space itself.
¶ 34        Our interpretation of Stacey is guided by the fact that, when the case was decided, the
       supreme court followed the “limited lockstep” approach to constitutional search-and-seizure
       questions, which it still follows to this day. See People v. Caballes, 221 Ill. 2d 282, 292
       (2006) (the limited lockstep approach “has deep roots in Illinois and was firmly in place
       before the adoption of the 1970 constitution”); People v. Williams, 27 Ill. 2d 542, 544 (1963)
       (“Even before the Supreme Court’s decision that the provisions of the fourth amendment
       apply to the States under the fourteenth amendment [citation], this court had followed the
       Supreme Court decisions interpreting the fourth amendment in our interpretation *** of the
       Illinois constitution. [Citation.] We continue to follow its decisions interpreting the fourth
       amendment as to what are reasonable searches and seizures.”). On search-and-seizure
       questions, our supreme court will construe our state constitution as affording greater

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       protections than the federal constitution only if it “ ‘find[s] in the language of our
       constitution, or in the debates and the committee reports of the constitutional convention,
       something which will indicate that the provisions of our constitution are intended to be
       construed differently than are similar provisions in the Federal Constitution, after which they
       are patterned.’ ” Caballes, 221 Ill. 2d at 310 (quoting People v. Tisler, 103 Ill. 2d 226, 245
       (1984)).
¶ 35       In Stacey, the court began with the uncontroverted fact that the defendant shared the
       bedroom with his wife. Stacey, 58 Ill. 2d at 89. The court further found that the wife’s access
       was not limited in any way, but that she had a “right of access to the bottom dresser drawer”
       (the “container” at issue). Id. The court gave its reasons:
           “The dresser was not locked and the wife was not instructed not to look into the drawer.
           To the contrary, the defendant told his wife that the shirt was in the bottom drawer, and
           her conduct in opening the drawer, looking at the shirt, [and] returning it ***, indicates
           that she had free access to this drawer.” Id. at 89-90.
       The court proceeded to conclude that, in light of (1) the wife’s joint use of the bedroom with
       the defendant, (2) the “lack of instruction denying her and others access to the drawer,” and
       (3) the “defendant’s disclosure to his wife that the shirt was in the drawer,” the defendant
       “clearly assumed the risk that his wife would consent to a search of the room, including the
       bottom dresser drawer from which the blood-stained shirt was taken.” Id. at 90. In the present
       case, by contrast, there is no evidence that defendant informed Lyons what data was on the
       disks or that Lyons had accessed the contents of the disks. The question, then, is whether, in
       Stacey, the defendant’s disclosure to the wife of the location of the shirt, and her later
       retrieval and return of it, were integral to the holding, or whether it was sufficient that the
       defendant had not denied his wife and others access to the drawer. This question will decide
       whether it was sufficient here that defendant neither directed Lyons not to inspect the disks
       nor took precautions to bar her access.
¶ 36       We do not read Stacey as departing from the Matlock presumption that, where spouses
       have common authority over a space, they have common authority over all containers within
       that space. First, the court’s discussion of Matlock betrayed no such inclination; the court
       made no suggestion, nor cited any evidence, that the Illinois constitution demanded stricter
       proof of consent to search than the federal constitution. Moreover, the court’s first
       observation regarding the dresser drawer was that “[t]he dresser was not locked and the wife
       was not instructed not to look into the drawer” (Stacey, 58 Ill. 2d at 89). We take this as a
       comment on the absence of evidence that access to the drawer was restricted, and hence that
       the Matlock presumption was not overcome. Of course, the court went on to note positive
       evidence that the wife was in fact granted access to the drawer, but we view this as but a
       comment that the State exceeded the proof needed–that not only was the Matlock
       presumption unrebutted, but the wife’s right of access to the drawer was affirmatively
       demonstrated. Therefore, we hold that Stacey construed Illinois constitutional protections in
       lockstep with Supreme Court precedent, and so endorsed the Matlock presumption that a
       spouse’s right of access to a space includes the right to access all containers within that
       space.


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¶ 37       Applying the Matlock/Stacey principles, we note that defendant and Lyons had mutual
       access to the metal cabinet as each had a key. Lyons’ access to the cabinet was understood
       during her December 2008 phone conversation with defendant, in which he accepted her
       offer to gather materials from the cabinet for him to pick up at a later date. That Lyons might
       not have used the cabinet herself is inconsequential. We are concerned with right of access,
       not regularity of use, and hold that Lyons had common authority over the cabinet. This gave
       rise to the Matlock/Stacey presumption that Lyons had common authority over the disks
       inside. Defendant did not rebut this presumption. First, he points to Lyons’ acknowledgment
       that the disks “belong[ed]” to him. In the case of spouses (and unmarried cohabitants
       (Matlock)), proof of sole ownership or use of a container by the nonconsenting spouse does
       not alone overcome the presumption of common authority. See People v. Ford, 83 Ill. App.
       3d 57, 63 (1980) (wife had common authority over husband’s toolbox; “[t]he mere fact that
       the defendant alone may have used [the] tools does not indicate that his wife was denied the
       mutual use [of], access to, or control over them”). Second, defendant maintains that, by
       protecting the household computers with passwords that he did not share with Lyons, he
       sufficiently manifested an intent that she not access the disks. This is unpersuasive.
       Defendant must have known that computers are prevalent in today’s society and that Lyons
       could have taken the disks to friends, family, or a public library for viewing. The passwords
       on the computers were not a meaningful restriction on Lyons’ access to the disks’ contents,
       and are more sensibly seen as a means of protecting the information on the hardware itself.
¶ 38       Since, then, Lyons had access to the cabinet containing the disks, and defendant did not
       restrict her access to the contents of the disks, whether by security measures or directives to
       her, defendant assumed the risk that Lyons would view the disks herself or permit another
       to do so. Lyons, therefore, had authority to consent to a search of the disks.
¶ 39       Defendant cites People v. Elders, 63 Ill. App. 3d 554 (1978), which was decided by the
       Fifth District Appellate Court. In Elders, the defendant’s wife went to the police station and
       reported that the defendant was drunk and had threatened her with a rifle, and that she was
       afraid for her son whom she had left home alone with the defendant. The police accompanied
       the wife to the trailer home she shared with the defendant. After persuading the defendant
       to exit the home, the police entered and found a rifle inside. Id. at 555. They then asked the
       wife if the defendant had any other weapons, and she replied that “there might be one in his
       car parked near the trailer.” Id. The police asked for permission to search the car, and the
       wife said, “ ‘Go ahead.’ ” Id. The police recovered a firearm from inside the car. Id. The trial
       court suppressed the firearm, finding that the State made “no showing that [the wife] had any
       ownership interest in the auto, or any right whatsoever to consent to its search.” Id. at 558.
¶ 40       On appeal, the State argued “that the fact [the wife] was married to and resided with the
       defendant gave her authority to consent to a search of the auto without any showing or
       declaration that she had any actual ownership interest in the vehicle.” Id. According to the
       State, “the normal incidents of the marital relationship vest sufficient possessory interests in
       each spouse in the property of the other such that a warrantless search and seizure consented
       to by one spouse is operative against the other.” Id. Citing Matlock and Stacey, the court
       disagreed:
           “It is only where the record affirmatively establishes ‘joint occupancy’ or ‘equal rights

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           to possession’ that one spouse’s consent to a search is binding against the other.
           [Citations.] The instant record fails to establish that Mrs. Elders possessed joint control
           or a right to access to the automobile which she consented to be searched. Contrary to the
           State’s assertion, we do not interpret [Matlock and Stacey] to create a presumption that
           the mere existence of a marital relationship standing alone vests in each spouse the
           requisite ‘common authority’ announced in Matlock necessary to validate one spouse’s
           consent to a warrantless search against the other nonconsenting spouse with whom the
           authority is shared.” (Emphasis added.) Id. at 558.
       The court in Elders was not prepared to presume, from the fact of marriage alone, that the
       wife had common authority over the defendant’s car. Evidently, the court believed that
       Matlock and Stacey were distinguishable because they involved areas inside marital
       dwellings. The case at hand likewise involves an area inside the marital dwelling. Putting
       aside the question of whether different presumptions ought to apply to cars than to marital
       dwellings, there is proof here that Lyons possessed a key to the cabinet. Moreover, her ability
       to access the cabinet was assumed in her December 2008 phone conversation with defendant,
       where she agreed to gather materials from the cabinet.
¶ 41       We distinguish as well People v. Blair, 321 Ill. App. 3d 373, 381 (2001), where the Third
       District Appellate Court reversed the trial court’s order denying the defendant’s motion to
       suppress his computer, which police had taken from his bedroom in his parents’ home. While
       the defendant was in custody for disorderly conduct in connection with videotaping young
       children at a zoo, the police went to his parents’ home. The father gave the police permission
       to enter the house and to search the defendant’s belongings. The police came upon a
       computer, which the father said belonged to the defendant. The police switched the computer
       on and found evidence that the defendant had visited sites displaying child pornography.
       With the father’s permission, the police took the computer to the station where, upon closer
       inspection, they discovered child pornography. Id. at 375-76.
¶ 42       After determining that the police lacked probable cause to seize the computer, the
       appellate court examined whether the father gave valid consent to seize the computer. The
       court held as a general rule that, while a third party can give valid consent to a search of
       another’s property, the third party cannot give valid consent to a seizure of that property
       unless he or she has an ownership interest in it:
               “The rationale for third-party consent searches resting, as it does, upon the
           diminished expectation of privacy attending a third party’s common authority over the
           premises or effects to be searched does not provide a sufficient basis for a third party’s
           consent to the seizure of another’s personal effects. While one who permits a third party
           access or control over his property has a diminished expectation of privacy, the third
           party’s access or control does not similarly diminish the owner’s expectation that he will
           retain possession of his property.
               A third party having common authority over premises or effects may permit a search
           of the premises or effects in his own right. [Matlock, 415 U.S. 164.] In such a case, the
           third party is permitting others to do no more than the third party may do on his own, i.e.,
           inspect the premises or effects. However, a third party may not in his own right consent


                                                -14-
           to depriving the owner of possession of his property. The third party could not in his own
           right lawfully exclude the owner from possession of the property. Accordingly, the third
           party cannot permit others to do what he himself has no right to do.
               Therefore, we hold that the consent of a third party is ineffective to permit the
           government to seize property in which the third party has no actual or apparent
           ownership interest. Rather, a seizure is lawful only when the owner of the property
           consents to the seizure, there is a valid warrant for its seizure, or police are lawfully
           present and there is probable cause to believe the property is contraband, stolen property,
           or evidence of a crime.” Id. at 379-80.
       Without judging the soundness of this rule, we note that the present case does not fall under
       it. By the time the police took possession of the disks, Lyons had already frustrated
       defendant’s expectation of possession of the disks (though not his expectation of privacy in
       their contents, as she had not searched them herself). As we noted earlier, the fourth
       amendment is not implicated when a private citizen, acting on her own initiative, delivers
       another’s property to the police. See supra ¶ 21.
¶ 43       We conclude that, because defendant did not reserve for himself either the metal cabinet
       or the disks inside, whether by security measures or directives to Lyons, she had common
       authority over the disks and, therefore, could consent to their search.
¶ 44       As we conclude that Lyons gave valid consent to the search of the disks, we need not
       consider alternative bases proposed by the State for affirming the trial court’s judgment
       denying the motion to suppress.
¶ 45       For the foregoing reasons, we affirm the judgment of the trial court denying defendant’s
       motion to suppress.

¶ 46      Affirmed.




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