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                              Appellate Court                           Date: 2017.09.27
                                                                        12:15:39 -05'00'




                  People v. Bonilla, 2017 IL App (3d) 160457



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



District & No.    Third District
                  Docket No. 3-16-0457



Filed             June 14, 2017



Decision Under    Appeal from the Circuit Court of Rock Island County, No. 15-CF-225;
Review            the Hon. Frank R. Fuhr, Judge, presiding.



Judgment          Affirmed.


Counsel on        John L. McGehee, State’s Attorney, of Rock Island (Patrick Delfino,
Appeal            Lawrence M. Bauer, and Gary F. Gnidovec, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.

                  Michael J. Pelletier, Peter A. Carusona, and Katherine M. Strohl, of
                  State Appellate Defender’s Office, of Ottawa, for appellee.



Panel             JUSTICE CARTER delivered the judgment of the court, with opinion.
                  Justice O’Brien concurred in the judgment and opinion.
                  Justice Wright dissented, with opinion.
                                               OPINION

¶1       Defendant, Derrick Bonilla, was charged with unlawful possession of cannabis with intent
     to deliver (720 ILCS 550/5(c) (West 2014)). He filed a motion to quash warrant and suppress
     evidence (motion to suppress), which the trial court granted after a hearing. The State appeals.
     We affirm the trial court’s judgment.

¶2                                               FACTS
¶3        The facts in this case are not in dispute and were stipulated to as follows by the parties at
     the hearing on the motion to suppress. Police officers had received a tip that drugs were being
     sold out of apartment 304 of the Pheasant Ridge Apartment Complex in Moline, Illinois.
     Acting on that tip, on March 19, 2015, the officers brought a trained drug-detection dog to that
     location. The exterior doors leading into the apartment building’s common-area hallways were
     not locked, and there was no lock, pass card, entry system, or anything whatsoever on the
     closed exterior doors of the apartment building that would prevent any person off the street
     from entering into the common-area hallways of the apartment building. Once inside the
     apartment building, canine officer Genisio walked his drug-detection dog down some of the
     common-area hallways. The first area that the dog was walked through was the second floor
     common-area hallway, which included apartments 201, 202, 203, and 204. The dog showed no
     interest in that hallway and did not alert on any of the doorways. The next area Officer Genisio
     walked his dog through was the third floor common-area hallway, which included apartments
     301, 302, 303, and 304. The dog showed no interest in apartments 301, 302, or 303. As the dog
     came to apartment 304, however, the dog moved back and forth in the doorway, sniffed at the
     bottom of the door, and signaled a positive alert for the presence of illegal drugs. The police
     officers obtained a search warrant for apartment 304 based upon the drug-detection dog’s alert.
     After obtaining the search warrant, the officers searched the apartment and found a quantity of
     cannabis and certain other items. Defendant, who lived in apartment 304, was later arrested
     and charged with unlawful possession of cannabis with intent to deliver.
¶4        In June 2015, defendant filed the instant motion to suppress. A hearing was held on the
     motion in August 2016. As noted above, the parties stipulated to the facts for the hearing and
     no additional testimony or other evidence was presented. At the conclusion of the hearing,
     after listening to the arguments of the attorneys, the trial court granted the motion to suppress.
     In so doing, the trial court stated:
                  “But I think whether you are doing it as a privacy interest under Kylo [sic] [Kyllo v.
              United States, 533 U.S. 27 (2001)] or a curtilage property interest under Jardines
              [Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013)], I think it would just be unfair
              to say you can’t come up on a person who lives in a single family residence and sniff
              his door but you can go into someone’s hallway and sniff their door if they happen to
              live in an apartment. That’s a distinction with an unfair difference. So I’m granting the
              motion.”
¶5        After the State’s oral motion to reconsider was denied, the State appealed. The State did not
     file a separate certificate of impairment but did set forth in its notice of appeal that the granting
     of defendant’s motion to suppress had the substantive effect of dismissing the charges.



                                                   -2-
¶6                                                ANALYSIS
¶7          On appeal, the State argues that the trial court erred in granting defendant’s motion to
       suppress evidence. The State asserts, although not necessarily in the order that follows, that the
       motion to suppress should have been denied because (1) the common-area hallway in front of
       defendant’s apartment door, where the alleged search took place, did not constitute curtilage
       under the law, (2) defendant had no reasonable expectation of privacy in the common-area
       hallway or in the air or odor of cannabis emanating from under his apartment door, (3) neither
       the United States Supreme Court’s ruling in Jardines nor the Illinois Supreme Court’s ruling in
       Burns (People v. Burns, 2016 IL 118973, ¶¶ 31-45) supports the trial court’s grant of the
       motion to suppress in the instant case, (4) under the established precedent, the police dog sniff
       in this case was not a search for purposes of the fourth amendment and was different from the
       thermal imaging scan that was condemned by the United States Supreme Court in Kyllo, and
       (5) even if this court finds that the alleged search violated the fourth amendment, the good faith
       exception to the exclusionary rule operates to avoid suppression of the evidence seized under
       the search warrant in this case since the police were acting in reliance upon the legal landscape
       as it existed at the time with respect to the use of drug-detection dogs in areas that were open to
       the general public. For all of the reasons set forth, the State asks that we reverse the trial court’s
       grant of the motion to suppress and that we remand this case for further proceedings.
¶8          Defendant argues that the trial court’s ruling was proper and should be upheld. Defendant
       asserts that the motion to suppress was correctly granted because the police officer physically
       intruded, without an implied license, on the constitutionally protected curtilage just outside of
       defendant’s apartment door to conduct a warrantless search with a drug-detection dog.
       According to defendant, it makes no difference in this case on the determination of curtilage
       whether the main entry to the apartment building was locked or unlocked. Defendant
       acknowledges that the police officer, like any other member of the public, had an implied
       license to approach defendant’s apartment and knock on the front door but claims that the
       officer exceeded the scope of that license by approaching with a trained drug-detection dog for
       the sole purpose of detecting illegal activity within the apartment. Defendant asserts further
       that the good faith exception does not apply in this case because the police officer could not
       have reasonably believed under any United States precedent that his actions were authorized.
       For all of the reasons stated, defendant asks that we affirm the trial court’s suppression order.
¶9          In general, a reviewing court applies a two-part standard of review to a trial court’s ruling
       on a motion to suppress evidence. Ornelas v. United States, 517 U.S. 690, 699 (1996); People
       v. Gaytan, 2015 IL 116223, ¶ 18. Under that two-part standard, the trial court’s findings of fact
       are given great deference and will not be reversed on appeal unless they are against the
       manifest weight of the evidence (Burns, 2016 IL 118973, ¶ 15), but the trial court’s ultimate
       legal ruling of whether reasonable suspicion or probable cause exists and whether suppression
       is warranted is subject to de novo review on appeal (Id. ¶ 16; People v. Sorenson, 196 Ill. 2d
       425, 431 (2001)). In this particular case, however, the parties stipulated to the facts in the trial
       court and raised only a question of law at the hearing on the motion to suppress. The standard
       of review in this appeal, therefore, is de novo because we are being called upon to review the
       trial court’s legal ruling on the question of law that was presented. See Burns, 2016 IL 118973,
       ¶ 16.
¶ 10        The specific issue before us in this appeal is whether the police officer violated defendant’s
       fourth amendment rights when he entered the common-area hallway of the unlocked apartment

                                                     -3-
       building and conducted a dog sniff of the front door of defendant’s apartment. More
       specifically, we must determine whether the police officer’s actions constituted a search for
       purposes of the fourth amendment. The fourth amendment to the United States Constitution
       guarantees the “right of the people to be secure in their persons, houses, papers, and effects,
       against unreasonable searches and seizures.” U.S. Const., amend. IV; Burns, 2016 IL 118973,
       ¶ 19. Article I, section 6, of the Illinois Constitution provides similar protection. See Ill. Const.
       1970, art. I, § 6; Burns, 2016 IL 118973, ¶ 19. Illinois courts interpret the search and seizure
       clause of the Illinois Constitution in limited lockstep with that of the federal constitution.
       Burns, 2016 IL 118973, ¶ 19.

¶ 11               I. The Two Different Approaches to Fourth Amendment Search Issues
¶ 12       There are two different approaches that a court may be called upon to apply when
       determining whether a police officer’s actions constitute a search under the fourth
       amendment—a property-based approach and a privacy-based approach. See United States v.
       Sweeney, 821 F.3d 893, 899 (7th Cir. 2016). If applicable, the property-based approach should
       be applied first. See Jardines, 569 U.S. at ___, 133 S. Ct. at 1417 (stating that there is no need
       to apply the privacy-based approach if a violation of the fourth amendment has been found
       under the property-based approach); Burns, 2016 IL 118973, ¶¶ 27, 45 (same). The
       property-based approach recognizes a simple baseline of protection that is provided by the
       fourth amendment as it relates to the property interests specified: that when the government
       obtains information by physically intruding (trespassing) on a person’s house, papers, or
       effects, a search within the original meaning of the fourth amendment has undoubtedly
       occurred. See Jardines, 569 U.S. at ___, 133 S. Ct. at 1414; Burns, 2016 IL 118973, ¶ 22. The
       question a court must ask when applying the property-based approach is whether the police
       officers intruded (trespassed) upon a constitutionally protected area (one of the protected
       properties specified in the text of the fourth amendment) to obtain the information in question.
       See Jardines, 569 U.S. at ___, 133 S. Ct. at 1414; Burns, 2016 IL 118973, ¶¶ 22-24. If so, a
       fourth amendment search has occurred. See Jardines, 569 U.S. at ___, 133 S. Ct. at 1414;
       Burns, 2016 IL 118973, ¶¶ 22-27.
¶ 13       The second approach that may be applied by a court to determine if a police officer’s
       actions constitute a search under the fourth amendment is the privacy-based approach. See
       Sweeney, 821 F.3d at 899. The privacy-based approach recognizes that property rights are not
       the sole measurement of the fourth amendment’s protections and that fourth amendment
       protections also extend to areas in which a person has a reasonable expectation of privacy.
       Jardines, 569 U.S. at ___, 133 S. Ct. at 1414; Burns, 2016 IL 118973, ¶ 23. Under the
       privacy-based approach, a fourth amendment search occurs when police officers intrude into
       an area in which a person has a reasonable expectation of privacy. See Jardines, 569 U.S. at
       ___, 133 S. Ct. at 1417; Burns, 2016 IL 118973, ¶ 27; Katz v. United States, 389 U.S. 347,
       360-61 (1967) (Harlan, J., concurring). The question a court must ask when applying the
       privacy based approach is whether the complaining person had a reasonable expectation of
       privacy in the area invaded (the location or object of the alleged search) by the police. See
       Katz, 389 U.S. at 360-61 (Harlan, J., concurring). If so, a fourth amendment search has
       occurred. Id.; Sweeney, 821 F.3d at 899. As noted above, however, there is no need to apply the
       privacy-based approach if a fourth amendment search has already been found under the
       property-based approach (if the situation before the court is such that the police intruded upon

                                                     -4-
       a constitutionally protected area to obtain the evidence in question). See Jardines, 569 U.S. at
       ___, 133 S. Ct. at 1417; Burns, 2016 IL 118973, ¶¶ 27, 45. That is so because the
       privacy-based approach adds to the fourth amendment protections provided under the
       property-based approach; it does not diminish those protections and is not a substitute for those
       protections. See United States v. Jones, 565 U.S. 400, 414 (2012) (Sotomayor, J., concurring);
       Burns, 2016 IL 118973, ¶ 27.

¶ 14                               II. The Fourth Amendment as Applied
                                to Common Spaces in Apartment Buildings
¶ 15       “Applying the Fourth Amendment to various common spaces in apartment buildings has
       been a source of considerable controversy.” Sweeney, 821 F.3d at 898. Prior to the United
       States Supreme Court’s decision in Jardines, it was generally established that a warrantless
       police intrusion into a common area of an apartment building did not violate the fourth
       amendment rights of a defendant tenant. See, e.g., People v. Smith, 152 Ill. 2d 229, 245-46
       (1992); Sweeney, 821 F.3d at 898-99 (listing federal Seventh Circuit cases); see also Carol A.
       Chase, Cops, Canines, and Curtilage: What Jardines Teaches and What It Leaves
       Unanswered, 52 Hous. L. Rev. 1289, 1303-09 (2015) (discussing federal cases in general). In
       Jardines, however, the United States Supreme Court held that a police dog sniff of the front
       door of a single family home was a search under the fourth amendment. Jardines, 569 U.S. at
       ___, 122 S. Ct. at 1417-18. The Supreme Court reached that conclusion, as stated in its
       majority opinion, by applying a property-based approach to the police officers’ actions and by
       finding that the police officers had intruded (trespassed) on the curtilage of the home (the front
       porch) to gather the information (the alert by the drug detection dog) that was later used as the
       basis for obtaining a search warrant for the home. See id. at 1414-18.
¶ 16       The Illinois Supreme Court later applied the holding of Jardines in the context of a
       multiunit apartment building in Burns and found that a police dog sniff of the front door of a
       defendant’s apartment was a search under the fourth amendment because the police officers
       had intruded on the curtilage (the landing outside of defendant’s apartment door in a locked
       apartment building) of the defendant’s residence in the middle of the night. Burns, 2016 IL
       118973, ¶¶ 32-45. In reaching that conclusion, the supreme court emphasized that the
       apartment building where defendant lived was locked and that the common areas of the
       building were not open to the general public. Id. ¶¶ 33, 41. The court went on to comment that
       the facts of that case were distinguishable from situations that involved police conduct in
       common areas that were readily accessible to the public but did not state what the result would
       have been under that type of factual situation. Id. ¶ 41.

¶ 17                               III. The Effect of Jardines and Burns
                                 on the Alleged Search in the Present Case
¶ 18       In the present case, although we are mindful of the supreme court’s comment in Burns, we
       nevertheless conclude that the police officer’s actions constituted a search under the fourth
       amendment, even though the apartment building involved was unlocked and unsecured. Other
       than the unlocked status of the building itself (and the time of the search, of which we have no
       knowledge), the officer’s conduct in the present case was virtually identical to that of the
       officer in Burns. See id. ¶¶ 7-8. Considering the level of protection that has been afforded to
       the home in fourth amendment jurisprudence, especially in light of the decisions in Jardines

                                                   -5-
       and Burns, we cannot conclude that a person who lives in an unlocked apartment building is
       entitled to less fourth amendment protection than a person who lives in a locked apartment
       building. See Jardines, 569 U.S. at ___, 122 S. Ct. at 1414; Burns, 2016 IL 118973, ¶ 24. The
       fourth amendment draws a firm line at the entrance to the home (Kyllo, 533 U.S. at 40) as the
       home is first among equals in the protected areas specified in the fourth amendment (Jardines,
       569 U.S. at ___, 122 S. Ct. at 1414; Burns, 2016 IL 118973, ¶ 24). At the very core of the
       fourth amendment is the right of a person to retreat into his or her own home and there to be
       free from unreasonable governmental intrusion. Jardines, 569 U.S. at ___, 122 S. Ct. at 1414;
       Burns, 2016 IL 118973, ¶ 24. In providing that protection, the fourth amendment does not
       differentiate as to the type of home involved. See Chase, supra, at 1312. As the trial court
       noted, to reach the opposite conclusion would be to draw a distinction with an unfair
       difference. See United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016) (recognizing that
       to distinguish Jardines based upon the differences between the front porch of a single family
       home and the closed hallway of an apartment building would be to draw an arbitrary line that
       would apportion fourth amendment protections on grounds that correlate with income, race,
       and ethnicity); Chase, supra, at 1312 (making a similar statement).
¶ 19       Although courts will generally consider the four factors specified in United States v. Dunn,
       480 U.S. 294, 301 (1987), in determining whether a particular area constitutes the curtilage of
       a home (in this case, the front door area of defendant’s apartment), we need not perform an
       extensive analysis of the Dunn factors in the present case because our analysis here would be
       only slightly different from the supreme court’s analysis of the Dunn factors in Burns. See
       Burns, 2016 IL 118973, ¶¶ 34-37. The only difference in this case would be that we would note
       in our analysis, as we have above, that the apartment building in the present case was unlocked,
       but we would still reach the same conclusion—that the common-area hallway just outside of
       defendant’s apartment door constituted curtilage for the purposes of the fourth amendment.
       That defendant lacked a reasonable expectation of complete privacy in the hallway or that he
       lacked an absolute right to exclude all others from the hallway does not mean that defendant
       had no reasonable expectation of privacy against persons in the hallway snooping into his
       apartment using sensitive devices not available to the general public or that the police could
       park a trained drug-detection dog directly in front of his apartment door. See Whitaker, 820
       F.3d at 853-84. We caution, however, that our ruling here is limited to the facts of this
       particular case and should not in any way be construed to mean that all apartment common
       areas constitute curtilage for the purposes of the fourth amendment.
¶ 20       In finding that the officer’s actions in this case constituted a fourth amendment search, we
       reject the State’s assertion that Burns requires a different outcome. While it is true that the
       court in Burns emphasized the fact that the apartment building in that case was locked, we do
       not agree that without that fact, the Burns court would have reached the opposite conclusion.
       The most that we can state is that the Burns court left that exact issue undecided, other than to
       comment that a situation involving an unlocked and unsecured common area was
       distinguishable from the facts that were before the court in Burns. See Burns, 2016 IL 118973,
       ¶ 41.
¶ 21       We acknowledge that there is precedent to support the State’s assertion that a person does
       not have a reasonable expectation of privacy in the common area of an apartment building, that
       a dog sniff is not a search under the fourth amendment, and that a dog sniff is not the same as
       the thermal imaging scan that was condemned in Kyllo. Those same arguments were made by

                                                   -6-
       the State in either Jardines or Burns (or both) and were rejected by the courts in those cases.
       We reject those arguments in this case for the same reasons. First, as noted above, there is no
       need to apply the privacy-based approach here because the government gained the evidence in
       question by intruding onto a constitutionally protected area. Jardines, 569 U.S. at ___, 122 S.
       Ct. at 1417; Burns, 2016 IL 118973, ¶¶ 27, 45. Second, while a police dog sniff of a vehicle or
       luggage in a public place may not constitute a fourth amendment search, a police dog sniff of
       the front door of a residence has produced a different result. See Jardines, 569 U.S. at ___, 122
       S. Ct. at 1417-18; Burns, 2016 IL 118973, ¶ 44. Third, when the government uses a physical
       intrusion to explore the detail of a person’s residence, a fourth amendment search has occurred
       and the type of tool that the government agents brought with them after that point (in this case,
       a drug-detection dog) is irrelevant. Jardines, 569 U.S. at ___, 122 S. Ct. at 1417.

¶ 22                               IV. Whether the Good Faith Exception
                                Applies Under the Facts of the Present Case
¶ 23       The final question that must be answered under this issue is whether the good faith
       exception applies in the present case to prevent the evidence in question from being
       suppressed. The good faith doctrine operates as an exception to the exclusionary rule. See 725
       ILCS 5/114-12(b)(1), (b)(2) (West 2014); Burns, 2016 IL 118973, ¶¶ 48-49. The rationale
       behind the good faith doctrine is that since the purpose of the exclusionary rule is to deter
       police misconduct, if there is no police misconduct to deter, the exclusionary rule should not
       apply. See Burns, 2016 IL 118973, ¶¶ 51-52 (citing People v. LeFlore, 2015 IL 116799,
       ¶¶ 22-25). The good faith doctrine has been expanded in recent years to include those
       situations where a police officer acted in good faith reliance upon binding appellate precedent
       that specifically authorized a particular practice but was subsequently overruled. Id. ¶ 50. In
       deciding whether the good faith exception to the exclusionary rule applies in any particular
       case, a court must determine whether a reasonably well-trained officer would have known that
       the search in question was illegal in light of all of the circumstances. Id. ¶ 52.
¶ 24       Having reviewed the record in the present case, we find that the good faith exception to the
       exclusionary rule does not apply. See Id. ¶¶ 47-73; Whitaker, 820 F.3d at 854-55. Very similar
       good faith arguments were made by the State in both the Burns and the Whitaker cases, and, in
       both of those cases, the courts rejected the State’s arguments for application of the good faith
       exception. See Burns, 2016 IL 118973, ¶¶ 47-73; Whitaker, 820 F.3d at 854-55. The same
       logic applies in the present case. Simply put, at the time of the search in the present case, both
       the United States Supreme Court and the Illinois Appellate Court had already ruled that a dog
       sniff of the front door of a residence was a fourth amendment search. See Jardines, 569 U.S. at
       ___, 122 S. Ct. at 1414; People v. Burns, 2015 IL App (4th) 140006, ¶ 46, aff’d, 2016 IL
       118973. The police officer could not reasonably rely, therefore, on older case law decisions or
       decisions involving dog sniffs in other contexts to authorize the warrantless dog sniff of the
       front door of defendant’s residence in the instant case. See Burns, 2016 IL 118973, ¶¶ 54-56.
       Nor could the officer reasonably rely on a search warrant that was issued based upon the
       warrantless police dog sniff of the front door of defendant’s apartment, a practice that had not
       been specifically authorized by any established precedent. See Id. ¶ 69. We, therefore, reject
       the State’s good faith argument in this case.




                                                   -7-
¶ 25                                     CONCLUSION
¶ 26      For the foregoing reasons, we affirm the judgment of the circuit court of Rock Island
       County.

¶ 27      Affirmed.

¶ 28       JUSTICE WRIGHT, dissenting.
¶ 29       The majority concludes the canine sniff in this case violated the fourth amendment based
       on the rationale contained in Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013) and
       recently adopted by our supreme court in People v. Burns, 2016 IL 118973. I respectfully
       dissent.
¶ 30       In Burns, the apartment building was secured by two locked entrances located on the east
       and west sides of the building. These locked entrances restricted the access of the uninvited
       general public into the building. Nonetheless, the officers in Burns conducted a canine sniff in
       a restricted area not accessible to the general public due to the locked exterior doors of the
       apartment building.
¶ 31       Our supreme court made it very clear in Burns that the locked nature of the building
       resulted in the fourth amendment violation. The Burns court specifically stated: “this case is
       distinguishable from situations that involve police conduct in common areas readily accessible
       to the public.” Id. ¶ 41. The intent of the Burns majority to limit the application of their
       decision is further evidenced by their usage of the term “locked” on more than 10 occasions
       throughout the opinion.
¶ 32       The facts of this case are very different from those presented to the court in Burns. This
       case involves police conduct in a common area readily accessible to the public. Here, the
       officers did not pass through any locked exterior entrances or any locked interior doorways
       before reaching the third-floor hallway with the canine. When the canine evaluated the air in
       the third-floor hallway, the canine was standing in a wholly unrestricted and readily accessible
       area of the building.
¶ 33       To warrant the constitutional protection as defendant contends, some portion of the
       third-floor common-area hallway must qualify as the “curtilage” under the property-based
       approach contemplated in Jardines. See Jardines, 569 U.S. at ___, ___, 133 S. Ct. at 1409,
       1414-15. As aptly stated by Justice Garman in her separate concurrence in Burns, a reviewing
       court should employ a blended application of the property-based and privacy-based
       approaches to fourth amendment concerns when determining whether an area qualifies as
       curtilage. Burns, 2016 IL 118973, ¶¶ 85-87 (Garman, C.J., specially concurring).
¶ 34       Whether an area qualifies as curtilage depends on “whether an individual reasonably may
       expect that the area in question should be treated as the home itself.” United States v. Dunn,
       480 U.S. 294, 300 (1987) (citing Oliver v. United States, 466 U.S. 170, 180 (1984)). To
       determine whether this small slice of the third-floor hallway should be classified as the
       “curtilage,” I apply the Dunn test by considering the following four factors: “the proximity of
       the area claimed to be curtilage to the home, whether the area is included within an enclosure
       surrounding the home, the nature of the uses to which the area is put, and the steps taken by the
       resident to protect the area from observation by people passing by.” Id. at 301.



                                                   -8-
¶ 35        I respectfully submit only one of the Dunn factors points toward the existence of curtilage
       in this case. There is no doubt that the third-floor hallway in defendant’s apartment building
       exists in close proximity to defendant’s residence.
¶ 36        Yet, no other Dunn factors apply. No portion of the third-floor hallway is enclosed.
       Defendant was not using the area outside his doorway for any private purpose such as for a
       sitting or reception area for himself or his guests. Nothing other than the thickness of
       defendant’s locked apartment door separated defendant’s private area from the
       publicly-accessible hallway. Defendant did not position any item to cause the general public to
       detour around the threshold of his locked door. Lastly, and importantly, defendant took no
       steps to protect the exterior of his apartment door from the view or observations of people
       lawfully travelling back and forth throughout the unlocked apartment building.
¶ 37        Based on the application of Dunn factors, I conclude it was unreasonable for defendant to
       expect that any portion of the hallway accessible to the general public should be treated as part
       of defendant’s home for fourth amendment purposes. Accordingly, I would hold the hallway in
       this completely unsecured apartment building was not curtilage in relation to defendant’s
       leased premises.
¶ 38        The majority concedes this case is distinguishable from Burns but rationalizes their
       holding by concluding that a person who lives in an unlocked apartment building is not entitled
       to less fourth amendment protection than a person who lives in a locked apartment building. I
       respectfully disagree that all persons enjoy the same level of fourth amendment protection
       when leasing living quarters in a secured structure versus an entirely unsecured one. I believe
       “a marked difference” should be discerned “between an individual’s expectation of privacy in
       a locked apartment building as compared to an unlocked one.” People v. Trull, 64 Ill. App. 3d
       385, 389 (1978).
¶ 39        For the preceding reasons, I respectfully conclude this particular defendant’s fourth
       amendment rights were not violated because law enforcement did not pass through any locked
       exterior or interior thresholds before a drug-sniffing canine analyzed the air in a hallway
       readily accessible to the public.
¶ 40        I would respectfully reverse the circuit court’s judgment suppressing the evidence in this
       case.




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