Opinion filed June 14, 2017 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois. Plaintiff-Appellant, ) ) Appeal No. 3-16-0457 v. ) Circuit No. 15-CF-225 ) DERRICK BONILLA, ) The Honorable ) Frank R. Fuhr, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

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, sniffing 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:

2 “But I think whether you are doing it as a privacy interest under Kylo [sic]

[(Kyllo v. United States,

(2001))] or a curtilage property interest

under Jardines [(Florida v. Jardines,

,

(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.

¶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,

) 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

3 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,

(1996); People v.

Gaytan,

. 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,

), but the trial court’s ultimate legal ruling

4 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,

(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,

.

¶ 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 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,

. Article I, section 6, of the Illinois Constitution provides similar protection. See Ill. Const.

1970, art. I, § 6; Burns,

. Illinois courts interpret the search and seizure

clause of the Illinois Constitution in limited lockstep with that of the federal constitution. Burns,

.

¶ 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,

(7th Cir. 2016). If applicable, the property-based approach should be applied first.

See Jardines,

,

(stating that there is no need to apply the

5 privacy-based approach if a violation of the fourth amendment has been found under the

property-based approach); Burns,

(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,

,

; Burns,

. 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,

,

; Burns,

. If so, a fourth amendment search has occurred. See

Jardines,

,

; Burns,

.

¶ 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,

. 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,

,

; Burns,

. 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,

,

;

Burns,

; Katz v. United States,

(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

6 or object of the alleged search) by the police. See Katz,

(Harlan, J.,

concurring). If so, a fourth amendment search has occurred. Id.; Sweeney,

. 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 a constitutionally protected area to obtain

the evidence in question). See Jardines,

,

; Burns,

. 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,

(2012)

(Sotomayor, J., concurring); Burns,

.

¶ 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,

. 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,

(1992); Sweeney,

(listing federal Seventh Circuit cases); see also Carol A. Chase, Cops,

Canines, and Curtilage: What Jardines Teaches and What It Leaves Unanswered,

, 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,

, 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

7 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,

. 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 and Burns, we

cannot conclude that a person who lives in an unlocked apartment building is entitled to less

8 fourth amendment protection than a person who lives in a locked apartment building. See

Jardines,

, 122 S. Ct. at 1414; Burns,

. The fourth

amendment draws a firm line at the entrance to the home (Kyllo,

) as the home is

first among equals in the protected areas specified in the fourth amendment (Jardines,

, 122 S. Ct. at 1414; Burns,

). 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,

, 122 S. Ct. at 1414; Burns,

. 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,

(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 ¶ 15, at

1312 (making a similar statement).

¶ 19 Although courts will generally consider the four factors specified in United States v.

Dunn,

(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,

. 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

9 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,

. 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,

.

¶ 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 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

10 by intruding onto a constitutionally protected area. Jardines,

, 122 S. Ct. at 1417;

Burns,

. 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,

, 122 S. Ct. at 1417-18;

Burns,

. 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,

, 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,

. 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

¶¶ 51-52

(citing People v. LeFlore,

). 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. Burns,

. 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.

11 ¶ 24 Having reviewed the record in the present case, we find that the good faith exception to

the exclusionary rule does not apply. See Burns,

; Whitaker,

. 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,

; Whitaker,

. 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,

, 122 S. Ct. at 1414; People v. Burns,

, aff'd,

. 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,

. 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 Burns,

. We,

therefore, reject the State’s good faith argument in this case.

¶ 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,

,

(2013) and

12 recently adopted by our supreme court in People v. Burns,

. 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,

, ___,

. As

aptly stated by Justice Garman in her separate concurrence in Burns, a reviewing court should

13 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,

(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,

(1987) (citing Oliver v. United States,

(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.” Dunn,

.

¶ 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.

14 ¶ 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,

(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.

15