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                               Appellate Court                          Date: 2019.02.21
                                                                        16:47:34 -06'00'



                  People v. Lindsey, 2018 IL App (3d) 150877



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



District & No.     Third District
                   Docket No. 3-15-0877



Filed              October 30, 2018



Decision Under     Appeal from the Circuit Court of Rock Island County, No. 15-CF-290;
Review             the Hon. Michael F. Meersman, Judge, presiding.



Judgment           Reversed and remanded; fines and fees vacated.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Editha Rosario-Moore, of
Appeal             State Appellate Defender’s Office, of Chicago, for appellant.

                   John L. McGehee, State’s Attorney, of Rock Island (Patrick Delfino,
                   Lawrence M. Bauer, and Justin A. Nicolosi, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                   JUSTICE McDADE delivered the judgment of the court, with
                             opinion.
                             Justice O’Brien concurred in the judgment and opinion.
                             Justice Schmidt concurred in part and dissented in part, with opinion.


                                              OPINION

¶1         In April 2014, the police used a trained drug-detection dog to conduct a free air sniff of
       the door handle and seams of defendant Jonathan Lindsey’s motel room. The dog alerted to
       the presence of drugs inside the room, and the police obtained a search warrant. During their
       search, they found 4.7 grams of heroin, and Lindsey was charged with unlawful possession
       with intent to deliver a controlled substance while being within 1000 feet of a school.
       Lindsey filed a motion to suppress evidence, arguing that the dog sniff violated his fourth
       amendment rights. The trial court denied the motion. Ultimately, the court found Lindsey
       guilty and entered a judgment of conviction and a separate second judgment ordering
       Lindsey to pay a $3000 drug assessment fee, a $500 drug street value fine, and a $250 DNA
       analysis fee and to submit a DNA sample. Lindsey appealed, arguing that (1) the trial court
       erred when it denied his motion to suppress evidence and (2) this court should vacate his fees
       and fine. We reverse and remand.

¶2                                                FACTS
¶3         On April 27, 2014, Lindsey was arrested for driving while his license was suspended.
       While Lindsey was in custody, he told police he was staying in a motel room at American
       Motor Inn. He did not give the officers consent to search the room. Rock Island County
       sheriff deputy Jason Pena arrived at the American Motor Inn with a drug-detection dog and
       performed a free air sniff on the exterior of Lindsey’s motel room door. The dog alerted to
       the presence of drugs in the room. Rock Island Police Department Detective Timothy
       Muehler obtained a search warrant and found 4.7 grams of a powdery substance later
       determined to be heroin. After the search, Lindsey admitted that he possessed the heroin.
       Lindsey was charged with one count of unlawful possession with intent to deliver a
       controlled substance while being within 1000 feet of a school (Class X felony).
¶4         In July 2015, Lindsey filed a motion to suppress evidence. In the motion, he argued that
       the dog sniff violated his fourth amendment rights because it constituted an unreasonable
       search of the corridor of his motel room. He, therefore, claimed that any evidence seized and
       any statements made to the officers subsequent to the search should be suppressed.
¶5         A hearing on the motion was held in September 2015. Rock Island Police Department
       Sergeant Shawn Slavish testified that a dog sniff was conducted on the door of room 130 at
       the American Motor Inn. He explained that “the door itself set back in a little alcove and as
       you stepped into the alcove to the right was Room 130 and I believe across the hall to that
       would be Room 131.” The door to the alcove was propped open and the area was open to the
       public. Pena informed Slavish that the dog had alerted the presence of drugs at the door.
       Afterward, the officers obtained a search warrant and searched the room.
¶6         Officer Pena testified that, on April 27, the Rock Island Police Department requested him
       to conduct a free air sniff of motel room 130. During the dog sniff, Pena explained,

                                                  -2-
                “I let him off lead and basically had him go to that side of the building actually
                checking for free air sniffs alongside that building. Once you reach Room 130, he
                changed his behavior, alerting to the odor of narcotics. In this particular instance what
                he did is he came up around the door handle and its seams and he—an alert would be
                that he would actually sit and lay down, which he did, indicating that he is in the odor
                of narcotics.”
       The dog was “within inches” of the door when he sniffed the handle and seams. The dog also
       searched the general area around the room but did not alert the officer about the presence of
       drugs until he reached room 130.
¶7          Kylinn Ellis testified that Lindsey was her son’s father. On April 27, Ellis was in the
       passenger seat of her car while Lindsey was driving. The police pulled the car over, arrested
       Lindsey for driving without a license, and took possession of the car. Afterward, Ellis walked
       to American Motor Inn to charge her phone in Lindsey’s motel room. When she arrived, she
       saw a black Suburban with tinted windows in front of the motel. She also believed someone
       was in the motel room because “the curtains were moving, and you can see like somebody in
       there” but she did not actually see a person in the room. She did not know if anyone besides
       Lindsey had stayed in the motel room but she had seen clothes that were not Lindsey’s in the
       room. As she walked up to the motel room, she was stopped by a detective who told her she
       could not enter the room.
¶8          The trial court did not find Ellis’s testimony that she believed someone was in the motel
       room after Lindsey was arrested credible because she had testified that she did not see a
       person in the room and there could have been other causes, such as an air conditioning or
       heating unit, for the movement of the curtains. It also stated that the police had a right to bar
       Ellis from the motel room to secure the scene. Relying on the Eighth Circuit’s decision in
       United States v. Roby, 122 F.3d 1120 (8th Cir. 1997), the court determined that Lindsey did
       not have a reasonable expectation of privacy in the corridor of his motel room because,
       unlike an apartment or house, the corridor of a motel room “was a public place of
       accommodation, and it was a public access area.” The trial judge explained that there were
       no Illinois cases that addressed this issue, and although he agreed with some of the points
       discussed in the Roby dissent, he was not going to create new case law. Ultimately, the court
       denied the motion to suppress.
¶9          In October 2015, a stipulated bench trial was held. The court found Lindsey guilty and
       sentenced him to seven years’ imprisonment and three years of mandatory supervised
       release. At sentencing, the court commented on his fines and fees, stating “I note that there’s
       still monies owing there. The clerk is to take all the monies that is showing [sic] owing in
       these cases and reduce everything to judgment, including the costs here, because obviously,
       he doesn’t have the ability to pay any of them and it’s just silly to keep these files open just
       for money issues in relation to that.”
¶ 10        In November 2015, the court entered two separate judgments. The first judgment did not
       list any fines or fees. The second judgment ordered Lindsey to pay a $3000 drug assessment
       and a $500 drug street value fine. It also ordered him to submit a specimen of his blood,
       saliva, or other tissue and pay a $250 DNA analysis fee. The Illinois State Police DNA
       indexing lab system shows that Lindsey had submitted a swab sample on October 16, 2012.
       Lindsey appealed both his conviction and the imposition of fines and fees.


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¶ 11                                            ANALYSIS
¶ 12                                       I. Fourth Amendment
¶ 13                               A. Reasonable Expectation of Privacy
¶ 14       Lindsey argues that the trial court’s denial of his motion to suppress evidence was error
       because the police officer’s use of a drug-detection dog near his motel room door constituted
       a warrantless search and, therefore, violated his fourth amendment rights. He claims that case
       law established that a guest in a motel room is constitutionally protected under the fourth
       amendment and that this rule also applies to his motel door, which is a part of the structure of
       the motel room. He also alleges that, pursuant to Kyllo v. United States, 533 U.S. 27 (2001),
       the dog sniff violated his fourth amendment rights because a drug-detection dog was used to
       explore details of the motel room not previously discernible without physical intrusion.
¶ 15       To begin, Lindsey references Stoner v. California, 376 U.S. 483 (1964), and People v.
       Eichelberger, 91 Ill. 2d 359 (1982), to support his argument that a guest in a motel room is
       entitled to constitutional protections under the fourth amendment. In Stoner, the United
       States Supreme Court established that “[n]o less than a tenant of a house, or the occupant of a
       room in a boarding house, [citation], a guest in a hotel room is entitled to constitutional
       protections against unreasonable searches and seizures.” Stoner, 376 U.S. at 490.
¶ 16       Our supreme court in Eichelberger concluded that a hotel occupant’s reasonable
       expectation of privacy is reduced with regard to the area immediately adjoining the room and
       cites United States v. Burns, 624 F.2d 95 (10th Cir. 1980), and United States v. Agapito, 620
       F.2d 324 (2nd Cir. 1980), to support its reasoning. In Burns, the Tenth Circuit stated that, in
       the context of conversation,
               “[m]otel occupants possess the justifiable expectation that if their conversation is
               conducted in a manner undetectable outside their room by the electronically unaided
               ear, that it will go unintercepted. Contrarily, to the extent they converse in a fashion
               insensitive to the public, or semipublic, nature of walkways adjoining such rooms,
               reasonable expectations of privacy are correspondingly lessened.” Burns, 624 F.2d at
               100.
¶ 17       In Agapito, the Second Circuit stated that a person has a different expectation of privacy
       in the corridor of a hotel room than in the curtilage of a private residence. The court
       explained:
               “ ‘[D]espite the fact that an individual’s Fourth Amendment rights do not evaporate
               when he rents a motel room, the extent of privacy he is entitled to reasonably expect
               may very well diminish. For although a motel room shares many of the attributes of
               privacy of a home, it also possesses many features which distinguish it from a private
               residence: “A private home is quite different from a place of business or a motel
               cabin. A home owner or tenant has the exclusive enjoyment of his home, his garage,
               his barn or other buildings, and also the area under his home. But a transient occupant
               of a motel must share corridors, sidewalks, yards, and trees with the other occupants.
               Granted that a tenant has standing to protect the room he occupies, there is
               nevertheless an element of public or shared property in motel surroundings that is
               entirely lacking in the enjoyment of one’s home.” ’ ” Agapito, 620 F.2d at 331
               (quoting United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir. 1979), quoting
               Marullo v. United States, 328 F.2d 361, 363 (5th Cir. 1964)).


                                                  -4-
¶ 18       Lindsey also cites multiple cases with varying fact patterns to support the proposition that
       the use of a drug-sniffing dog in the common area of a motel constitutes a fourth amendment
       search. In Florida v. Jardines, 569 U.S. 1, 3-4 (2013), the police conducted a dog sniff on the
       front porch of Jardines’s private home. When the dog sniffed the front door, he gave a
       positive response for drugs, and the police obtained a search warrant. Id. at 4. The officers
       found marijuana during the search, and Jardines was charged with trafficking. Id. Our
       Supreme Court stated that the curtilage, or area immediately surrounding and associated with
       the home, was the “constitutionally protected extension” of the home and determined that
       Jardines’s front porch was considered curtilage. Id. at 6-8. It also found that, although a
       visitor would have an implied license to approach the home for a brief moment, a resident
       does not give a police officer a “customary invitation” to use a trained police dog to
       investigate the area to find incriminating evidence. Id. at 8-9. The court declined to discuss
       whether the dog sniff violated Jardines’s reasonable expectation of privacy. Id. at 11 (“The
       Katz [v. United States, 389 U.S. 347 (1967),] reasonable-expectations test has been added to,
       not substituted for, the traditional property-based understanding of the Fourth Amendment,
       and so is unnecessary to consider when the government gains evidence by physically
       intruding on constitutionally protected areas.” (Emphases in original and internal quotation
       marks omitted.)).
¶ 19       Justice Kagan concurred, stating that if the case had reviewed Jardines’s reasonable
       expectation of privacy, the Court’s decision in Kyllo, would provide guidance. Id. at 14
       (Kagan, J., concurring, joined by Ginsburg and Sotomayor, JJ.). In Kyllo, wherein the Court
       held that the police officers’ use of a thermal-imaging device to detect heat from a private
       home constituted a search, the Court established that “ ‘Where, as here, the Government uses
       a device that is not in general public use, to explore details of the home that would previously
       have been unknowable without physical intrusion, the surveillance is a “search” and is
       presumptively unreasonable without a warrant.’ ” Id. at 14 (quoting Kyllo, 533 U.S. 27 at
       40). Justice Kagan opined that the police officers conducted a search because the officers
       used a trained drug-detection dog, or a “device that is not in general public use,” to explore
       details of Jardines’s home they would not have otherwise discovered without entering the
       home. Id. at 14-15.
¶ 20       In United States v. Whitaker, 820 F.3d 849, 850 (7th Cir. 2016), police officers obtained
       permission from an apartment manager to conduct a dog sniff in a locked, shared hallway of
       an apartment building. The dog alerted the presence of drugs at Whitaker’s apartment. Id.
       The officers obtained a search warrant, found incriminating evidence, and charged Whitaker
       with various drug and firearm offenses. Id. On appeal, Whitaker argued that the use of a
       drug-detection dog violated his privacy interests under Kyllo. Id. at 852. The Seventh Circuit
       determined that, under the Kyllo rule, a “trained drug-sniffing dog is a sophisticated sensing
       device not available to the general public.” Id. at 853. “The dog here detected something (the
       presence of drugs) that otherwise would have been unknowable without entering the
       apartment.” Id. The court noted that Whitaker did not have “complete” reasonable
       expectation of privacy in his apartment hallway. Id. However, “Whitaker’s lack of a
       reasonable expectation of complete privacy in the hallway does not also mean that he had no
       reasonable expectation of privacy against persons in the hallway snooping into his apartment
       using sensitive devices not available to the general public.” Id. The court also stated:



                                                  -5-
                    “Whitaker’s lack of a right to exclude did not mean he had no right to expect
               certain norms of behavior in his apartment hallway. Yes, other residents and their
               guests (and even their dogs) can pass through the hallway. They are not entitled,
               though, to set up chairs and have a party in the hallway right outside the door.
               Similarly, the fact that a police officer might lawfully walk by and hear loud voices
               from inside an apartment does not mean he could put a stethoscope to the door to
               listen to all that is happening inside. Applied to this case, this means that because
               other residents might bring their dog though the hallway does not mean the police can
               park a sophisticated drug-sniffing dog outside an apartment door, at least without a
               warrant.” Id. at 853-54 (citing Jardines, 569 U.S. at 9).
       The court concluded that the facts presented constituted a search under the fourth amendment
       and that Whitaker’s rights were violated when the officers conducted a warrantless search in
       the hallway of his apartment. Id. at 854.
¶ 21       In a similar analysis, our supreme court in People v. Burns, 2016 IL 118973, found that
       the police officers’ warrantless use of a sniff dog at the defendant’s apartment door in a
       locked apartment building violated the defendant’s fourth amendment right because the
       locked apartment building was a constitutionally protected area pursuant to Jardines. In
       People v. Bonilla, 2017 IL App (3d) 160457, pet. for leave to appeal allowed, No. 122484
       (Sept. 27, 2017), this court determined that the police officer’s actions constituted a search
       under the fourth amendment when he entered the common area hallway of an unlocked
       apartment building and conducted a dog sniff of the defendant’s front door. The court
       reached that conclusion because the common area hallway constituted curtilage under
       Jardines and Burns. However, both courts declined to apply the privacy-based approach
       because the government in both cases intruded onto constitutionally protected areas.
¶ 22       The State argues that case law establishes that a guest in a motel room is entitled to a
       reduced expectation of privacy. Furthermore, it claims that this court should adopt the ruling
       in Roby, 122 F.3d 1120, as the trial court did in its decision. In Roby, police officers
       conducted a dog sniff on the floor of Roby’s hotel room. Id. at 1122. The officers walked the
       dog down the hall two or three times, and the dog alerted to Roby’s room. Id. The officers
       obtained a search warrant and found cocaine, and Roby was charged with possessing cocaine
       with intent to distribute. Id. at 1123. On appeal, Roby challenged the denial of his motion to
       suppress evidence obtained during the search of his hotel room because, inter alia, the dog
       sniff violated his fourth amendment rights. Id. The Eighth Circuit held that a trained dog’s
       detection of odor in a common corridor did not violate the fourth amendment. Id. at 1125. It
       reasoned that Roby’s expectation of privacy was limited in a hotel corridor because people
       can access the area and “[n]either those who stroll the corridor nor a sniff dog needs a
       warrant for such a trip.” Id. It further noted that the fact that the dog was more skilled than a
       human at detecting odor does not make the dog sniff illegal. Id. at 1124-25. Furthermore, it
       stated that evidence of plain smell—similar to evidence in plain view—may be detected
       without a warrant. Id. at 1125.
¶ 23       We find that the reasoning in Whitaker and Jardines is more persuasive. Similar to a
       sense-enhancing technology, a trained drug-detection dog is a sophisticated sensing device
       not available to the general public. See Jardines, 569 U.S. at 14-15 (Kagan, J., concurring,
       joined by Ginsburg and Sotomayor, JJ.); Whitaker, 820 F.3d at 853. In this case, the
       drug-detection dog was used to explore the details previously unknown in Lindsey’s motel

                                                   -6-
       room, which the Supreme Court established was entitled to constitutional protections. See
       Stoner, 376 U.S. at 490.
¶ 24       The State argues that Lindsey’s reasonable expectation of privacy is reduced with regard
       to the area immediately adjoining the motel room. In Whitaker, the court recognized that the
       defendant did not have a complete expectation of privacy in his apartment hallway; however,
       this did not mean he had “no reasonable expectation of privacy against persons in the
       hallway snooping into his apartment using sensitive devices not available to the general
       public.” Whitaker, 820 F.3d at 853. Furthermore, in Burns, 624 F.2d at 100—the case our
       supreme court in Eichelberger relies on—the court stated that a motel guest has a justifiable
       expectation that “if their conversation is conducted in a manner undetectable outside their
       room by the electronically unaided ear, that it would go unintercepted.” Lindsey had a
       justifiable expectation of privacy because, until Pena focused the free air sniff on the motel
       door and seams to detect the odor of drugs inside Lindsey’s motel room, the smell was
       undetectable outside of the room. Therefore, we reject the State’s argument and find that the
       dog sniff constituted a warrantless search in violation of Lindsey’s fourth amendment rights.

¶ 25                                       B. Exclusionary Rule
¶ 26       Next, we address whether Pena’s violation meets the good faith exception to the
       exclusionary rule. The State contends that it has met the good faith exception because the
       officer had no reason to believe that he was violating Lindsey’s fourth amendment rights.
       Although the State acknowledges that the police could not rely on any binding precedent to
       authorize the dog sniff or the search warrant, it argues, however, there is no precedent
       prohibiting the officers’ actions in a hotel hallway and, if anything, the officers would have
       relied on Roby and similar cases as guidance.
¶ 27       Generally, courts will not admit evidence obtained in violation of the fourth amendment.
       Burns, 2016 IL 118973, ¶ 47. “The fruit-of-the-poisonous-tree doctrine is an outgrowth of
       the exclusionary rule providing that the fourth amendment violation is deemed the poisonous
       tree, and any evidence obtained by exploiting that violation is subject to suppression as the
       fruit of that poisonous tree.” (Internal quotation marks omitted.) Id. The main purpose of the
       exclusionary rule is to deter future unlawful police conduct and fulfill the guarantee of the
       fourth amendment against unreasonable searches and seizures. Id.
¶ 28       The exclusionary rule is applied only in unusual cases when its application will deter
       future fourth amendment violations. Id. ¶ 49 (citing People v. LeFlore, 2015 IL 116799,
       ¶ 22). Exclusion of evidence is a court’s last resort, not its first impulse. Id. In considering
       the good faith exception to the exclusionary rule applies in any case, the inquiry is “whether
       a reasonably well trained officer would have known that the search was illegal in light of all
       the circumstances.” (Internal quotation marks omitted.) Id. ¶ 52 (quoting LeFlore, 2015 IL
       116799, ¶ 25). “The Supreme Court expanded the good-faith exception to the exclusionary
       rule to include good-faith reliance upon binding appellate precedent that specifically
       authorized a particular practice but was subsequently overruled.” Id. ¶ 49 (citing Davis v.
       United States, 564 U.S. 229, 241 (2011)).
¶ 29       Illinois courts have addressed the good faith exception in the context of binding authority.
       Bonilla, 2017 IL App (3d) 160457, ¶ 24 (finding that, similar to Burns and Whitaker, United
       States Supreme Court and Illinois Appellate Court already ruled that a dog sniff of the front
       door of a residence was a fourth amendment search, and therefore, police could not rely on

                                                  -7-
       the good faith exception); Burns, 2016 IL 118973, ¶ 68 (holding that the good faith exception
       does not apply because there was no binding precedent authorizing officers’ conduct except
       for a Fourth District case prohibiting the conduct); see also Whitaker, 820 F.3d at 854-55
       (ruling that “no appellate decision specifically authorizes the use of a super-sensitive
       instrument, a drug-detecting dog, by the police outside an apartment door to investigate the
       inside of the apartment without a warrant,” and therefore, good faith exception did not
       apply).
¶ 30       Here, the parties concede, and we agree, that there was no binding appellate precedent in
       effect at the time but subsequently overruled that Pena could have relied on to justify the dog
       sniff. In fact, there was sufficient binding precedent for him, as a reasonably well-trained
       officer, to know the dog sniff required a warrant. The dog sniff in this case occurred on April
       27, 2015. At least four, and arguably five, cases decided prior to this dog sniff establish the
       proposition sufficiently that a reasonably well-trained officer should have known that
       conducting a warrantless air sniff to detect contents inside a hotel room violates the fourth
       amendment.
¶ 31       Fifty-one years prior to the search in this case, the United States Supreme Court decided,
       in Stoner, 376 U.S. at 490, that guests in hotel rooms, tenants in apartments, and residents in
       homes all have the same expectation of privacy in their personal space and are all entitled to
       the same constitutional protections against unreasonable search and seizure under the fourth
       amendment.
¶ 32       Thirty-three years prior to this search, the Illinois Supreme Court decided Eichelberger,
       91 Ill. 2d 359, recognizing a hotel occupant’s reasonable expectation of privacy in the hotel
       room—as had Stoner—but explicitly finding that expectation reduced with regard to the
       common area adjoining the room. In reaching that conclusion, our supreme court expressly
       relied on two federal appeals court decisions, Burns, 624 F.2d at 100 (“Motel occupants
       possess the justifiable expectation that if their conversation is conducted in a manner
       undetectable outside their room by the electronically unaided ear, that it would go
       unintercepted.” (Emphasis added.)), and Agapito, 620 F.2d at 331 (“Granted that a tenant
       has standing to protect the room he occupies, there is nevertheless an element of public or
       shared property in motel surroundings that is entirely lacking in the enjoyment of one’s
       home.” (Emphases added and internal quotation marks omitted.))
¶ 33       Fourteen years prior to Pena’s search, in Kyllo, the Supreme Court, in a case involving
       the use of thermal imaging to detect activity inside a home, decided that the use of a
       sense-enhancing technology not available to the general public to obtain information about
       activities inside a home that are not visible to the naked eye and that could not be obtained
       without physical intrusion into the home is a search entitled to fourth amendment protection.
¶ 34       Two years prior to the Pena search, the United States Supreme Court decided in Jardines,
       569 U.S. at 9-11, that the use of a trained drug-detection dog to sniff the area outside the
       defendant’s private home was a fourth amendment search entitled to fourth amendment
       protections. The Jardines majority decided the case on property grounds. However, as three
       concurring judges noted, a trained drug-detection dog is also a sense-enhancing detection
       tool and its use to detect details of and activities inside a protected space that would not have
       been discovered without entering the home violated the defendant’s reasonable expectation
       of privacy and would similarly constitute a fourth amendment search under a privacy


                                                   -8-
       analysis. Id. at 14-15 (Kagan, J., concurring, joined by Ginsburg and Sotomayor, JJ.). Privacy
       is the basis of Lindsey’s argument in this case.
¶ 35        Finally, in People v. Burns, 2015 IL App (4th) 140006, the appellate court opinion,
       issued shortly before Pena’s search, found that a dog sniff of the frame around an apartment
       door—the same type of sniff as that in this case—was a search under the fourth amendment
       entitled to constitutional protection.
¶ 36        In sum, these decisions had clearly established at the time of Pena’s dog’s sniff of the
       door to Lindsey’s motel room that the sniff violated his reasonable expectation of privacy in
       his motel room and could not have been undertaken without a warrant. The fact that
       subsequent decisions of the Illinois Supreme Court and our appellate courts have restated this
       fact with additional specificity and clarity does not undermine the fact that the earlier cases
       were quite sufficient to have apprised a reasonably well-trained officer that the execution of
       the Pena dog sniff without a warrant violated the fourth amendment. The evidence seized as a
       result of the sniff should have been suppressed on this basis.
¶ 37        Second, the evidence shows that the dog sniff was not merely “simple, isolated
       negligence,” as argued by the State, but was a deliberately executed attempt to find drugs
       inside Lindsey’s motel room. See LeFlore, 2015 IL 116799, ¶ 24 (“[w]here the particular
       circumstances of a case show that police acted with an objectively reasonable good-faith
       belief that their conduct was lawful, or when their conduct involved only simple, isolated
       negligence, there is no illicit conduct to deter” (internal quotation marks omitted)). The
       police were suspicious of Lindsey’s activities because a confidential informant stated that
       Lindsey was selling drugs in the motel and that Lindsey had a criminal history. Subsequently,
       the police conducted a surveillance of Lindsey’s motel. After Lindsey was arrested, the
       police spoke with motel staff to inquire about Lindsey’s motel room. Pena and his K-9
       arrived at the motel and conducted an air sniff of the door handle and seam of Lindsey’s
       motel room to detect narcotics. Under these circumstances, Pena’s conduct, as required by
       LeFlore, was “sufficiently deliberate that deterrence is effective and sufficiently culpable that
       deterrence outweighs the cost of suppression.” (Internal quotation marks omitted.) Id. We,
       therefore, hold that suppression of the evidence was necessary. The denial of defendant’s
       motion to suppress is reversed, the evidence is suppressed, his conviction is vacated, and the
       matter is remanded for further proceedings consistent with this decision.

¶ 38                                         II. Court Fines
¶ 39        Because Lindsey’s conviction has been vacated and this case is being remanded, the fines
       and fees issues raised by the defendant are moot. However, in the event that a petition for
       leave to appeal is filed and granted, we briefly address those issues. Lindsey argues that the
       trial court erred when it assessed a $3000 drug assessment and $500 street value fine in its
       written judgment because the court stated that it would not impose any fines at sentencing.
       He asks this court to vacate the drug assessment and street value fine. The State concedes
       that both fees should be vacated.
¶ 40        “When the oral pronouncement of the court and the written order conflict, the oral
       pronouncement of the court controls.” People v. Roberson, 401 Ill. App. 3d 758, 774 (2010).
       Illinois Supreme Court Rule 615(b) allows a court to modify a written judgment to bring it
       into conformity with the oral pronouncement of the trial court. People v. D’Angelo, 223 Ill.
       App. 3d 754, 784 (1992). Questions regarding the appropriateness of fines, fees, and costs

                                                   -9-
       imposed by a sentencing court are reviewed de novo. People v. Ackerman, 2014 IL App (3d)
       120585, ¶ 26.
¶ 41       At sentencing, the trial court instructed the clerk to remove Lindsey’s fines. However, the
       second judgment showed that the court assessed a $3000 drug assessment and $500 street
       value fine. Based on the evidence presented, we vacate the $3000 drug assessment and $500
       street value fine.

¶ 42                                       III. DNA Analysis Fee
¶ 43        Lindsey also alleges that the trial court erred when it ordered him to submit a DNA
       sample and pay a $250 DNA analysis fee although he previously submitted a DNA sample
       and paid the fee. He asks this court to vacate the DNA analysis fee. The State concedes that
       this fee should be vacated.
¶ 44        Section 5-4-3(a) of the Unified Code of Corrections provides that any person convicted
       of felony offense must submit specimens of blood, saliva, or tissue to the Illinois Department
       of State Police. 730 ILCS 5/5-4-3(a) (West 2016). Section 5-4-3(j) states that if someone
       submits specimens of blood, saliva, or tissue, he must pay a $250 analysis fee. Id. § 5-4-3(j).
       Our supreme court has established that section 5-4-3 authorizes the $250 analysis fee only
       when the defendant is not currently registered in the DNA database. People v. Marshall, 242
       Ill. 2d 285, 303 (2011). Questions regarding the appropriateness of fines, fees, and costs
       imposed by a sentencing court are reviewed de novo. Ackerman, 2014 IL App (3d) 120585,
       ¶ 26.
¶ 45        Lindsey states that he failed to preserve this issue for review. However, the State does not
       argue that he waived this issue and concedes to the vacatur of the analysis fee. People v.
       Williams, 193 Ill. 2d 306, 347 (2000) (“the State may waive an argument that the defendant
       waived an issue by failing to argue waiver in a timely manner”). Based on Lindsey’s Illinois
       State Police DNA form and prior convictions, it is presumed that he was previously ordered
       to submit a DNA sample and pay the $250 analysis fee, and therefore, the subsequent order is
       improper. See People v. Leach, 2011 IL App (1st) 090339, ¶ 38 (determining that because a
       convicted felon is required to submit a DNA sample, it is presumed that the trial court
       imposed the requirement on a prior conviction). Therefore, we vacate the DNA analysis fee.

¶ 46                                       CONCLUSION
¶ 47      The judgment of the circuit court of Rock Island County is reversed and remanded.

¶ 48      Reversed and remanded; fines and fees vacated.

¶ 49       JUSTICE SCHMIDT, concurring in part and dissenting in part:
¶ 50       Even assuming that the majority correctly determined that the dog sniff in this case
       violated the fourth amendment (it did not), the good faith exception to the exclusionary rule
       applies.
¶ 51       Up to this point, courts have determined that canine sniffs of residential and apartment
       doors constitute fourth amendment searches. See Jardines, 569 U.S. 1; Burns, 2016 IL
       118973; Bonilla, 2017 IL App (3d) 160457; Whitaker, 820 F.3d 849. No similar holding has
       been made regarding canine sniffs of hotel room doors. In fact, until now the relevant

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       authority indicates that canine sniffs in the common corridors of hotels are not fourth
       amendment searches because a hotel tenant possesses a reduced expectation of privacy. See
       Roby, 122 F.3d 1120; Eichelberger, 91 Ill. 2d 359; Agapito, 620 F.2d 324. Based on the facts
       of this case and the state of the law, no one can reasonably argue that the officers acted in bad
       faith. Accordingly, I would find the good faith exception to the exclusionary rule applies.
¶ 52       With respect to the fines and fees issues, I agree that we should accept the State’s
       concession and vacate them. Otherwise, I would affirm.




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