People v. Martin, 2017 IL App (1st) 143255 (June). Episode 363 (Duration 17:41)
Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building.
A Drug Deal?
Police searched a home without a warrant.
Police say they observed a man approach defendant and raise his right index finger, whereupon defendant acknowledged the gesture and entered the main door frame of a two story flat.
The door to was slightly ajar.
Defendant stood on the immediate threshold and reached into the door inside of the doorframe.
Defendant retrieved a blue plastic bag, manipulated it, and then retrieved a smaller unknown item from the bag. Police could not tell what the item was that defendant took from the bag.
Defendant then placed the bag on top of the door and returned to the man, where he received money from and tendered the small unknown item to the man. Defendant tendered the money to another male who was standing outside of the house.
The man was arrested and he said he just purchased heroin.
Police then arrested defendant.
An officer then reached above the door frame on the inside of the door and recovered the blue bag.
The items inside the blue bag matched the suspect narcotics that were recovered from the man. The baggies were branded with a bomb logo and said “stay high imagine”.
The police said the door was open, he observed that the front door opened into a vestibule or common area that had another door, leading into the residence.
The parties stipulated that the officers did not have a warrant.
Trial Court Findings
The court acquitted defendant of the hand to hand delivery and of possession with intent to deliver but found him guilty of possession of a controlled substance.
On appeal defendant challenges the warranty seizure of the drugs.
The Case Law
Turning to defendant’s contentions, defendant relies on Jardines, 569 U.S. ___, 133 S. Ct. 1409, and the expectation of privacy test from Katz, 389 U.S. 347. See also the Illinois search & seizure resource guide.
We briefly summarize each framework.
Under Katz, to claim the protection of the fourth amendment, a person must have exhibited an actual (subjective) expectation of privacy in the place searched or thing seized, and this expectation must be one that society is willing to recognize as “reasonable. ”
Of note, Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others.
- See People v. Smith, 152 Ill. 2d 229, 245 (1992) (no reasonable expectation of privacy in a conversation that occurred in an apartment building’s unlocked common area that was shared by other tenants, the landlord, their social guests, and other invitees);
- People v. Carodine, 374 Ill. App. 3d 16, 23 (2007) (the defendant had no reasonable expectation of privacy in the dryer vent of his three-unit apartment building where dryer vent was in a common area that was accessible to the landlord and other members of the general public);
- People v. Lyles, 332 Ill. App. 3d 1, 7 (2002) (stating that a tenant has no reasonable expectation of privacy in common areas of an apartment building that are accessible to other tenants and their invitees).
In Jardines, 569 U.S. ___, 133 S. Ct. at 1413, the Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within the meaning of the fourth amendment.
The Court stated that pursuant to Katz, “property rights are not the sole measure of Fourth Amendment violations.” The Court stated that the area “immediately surrounding and associated with the home,” known as curtilage, was “part of the home itself for Fourth Amendment purposes.”
The Court then assessed whether the officer’s’ investigation “was accomplished through an unlicensed physical intrusion.”
The Court stated that a police officer without a warrant “may approach a home and knock, precisely because that is no more than any private citizen might do.”
Ultimately, the Court found that the use of trained police dogs to investigate a home and its immediate surroundings was a “search” within the meaning of the fourth amendment.
The Illinois Supreme Court applied Jardines to a 12-unit apartment building in People v. Burns, 2016 IL 118973. See Also Police Dog Sniff of Apartment Door Is a No-No
There, the court considered whether the warrantless use of a drug detection dog, located in a locked apartment building in the middle of the night, violated the defendant’s fourth amendment rights.
The dog sniff occurred outside the defendant’s apartment door.
The State in Burns suggested that Jardines did not apply to leased apartments or condominiums because there is no legitimate expectation of privacy in the common areas of multi-unit dwellings.
Disagreeing with the State, the court noted that the entrances to the apartment building were locked and the common areas were not open to the general public. The court also found that the landing to the defendant’s apartment was curtilage, noting that the landing was directly in front of the apartment and a clearly marked area within a locked building with limited use and restricted access.
The court stated that the police conduct in the case “certainly exceeded the scope of the license to approach [the] defendant’s apartment door,” as the officers entered a locked building in the middle of the night and remained in the building for more than a very short period of time.
Although Burns applied Jardines to a multi-unit apartment building, the specific contours of Jardines are unsettled.
Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.
The court further stated that “a strict apartment versus single-family house distinction” was troubling because it would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity, citing data showing that a smaller percentage of African-Americans and Hispanics live in one-unit detached houses than whites and that the percentage of households that live in one-unit, detached houses rises with income.
Thus, under both Katz and Jardines, the type of building at issue matters.
Single Family Home v. Multi Unit Apartment
Here, the State and defendant dispute how to characterize the two story flat, with the State asserting that it is a multi-unit apartment building and defendant contending that it is a single-family home.
Defendant’s mother owned the flat, he was a guest there, and the second story was empty. Nobody was living upstairs.
The court found that cases from other jurisdictions indicate there are greater expectations of privacy in duplexes owned and occupied by one family persuade us that this flat should be treated as a single-family home for fourth amendment purposes.
This was not a typical multi unit building where numerous tenants and members of the public were expected to enter. Rather, it was viewed as the family home, and was treat it as such for the purposes of this case. Under Jardines, the area “ ‘immediately surrounding and associated with the home,’ ” known as curtilage, is considered part of the home itself for fourth amendment purposes.
More Like The Curtilage Of A Home
In United States v. Dunn, 480 U.S. 294, 301 (1987), the Supreme Court listed four factors to consider when defining the extent of a home’s curtilage:
(1) the proximity of the area claimed to be curtilage to the home;
(2) whether the area is included within an enclosure surrounding the home;
(3) the nature of the uses to which the area is put; and
(4) the steps taken by the resident to protect the area from observation by passersby.
These factors are “useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”
Here, Officer Warner recovered an item from above the inside door frame of the outer door of 5154 West Fulton.
Although the area beyond the outer doorway led to two apartment doors, we determined above that the entire building is a single-family home, which includes the area above the inside door frame.
As “the Fourth Amendment has drawn a firm line at the entrance to the house”, the area above the inside door frame was a constitutionally protected area. Further, that area outside the door was akin to a porch, which is a “classic exemplar” of curtilage.
The next question is whether the officers’ actions were accomplished through an unlicensed physical intrusion. A police officer without a warrant may approach a home and knock because that is no more than any private citizen might do.
Here, the police went up the stairs of the flat reached above the inside door frame, and recovered a blue bag. This was well beyond what an ordinary private citizen could do. Here, the police physically intruded on the inside of the home to gather evidence. That the door was open does not change this result.
A private citizen would not think that he could breach the open door of a home and investigate its contents. Any physical invasion of the home’s structure by even a fraction of an inch is too much. Police exceeded what a private citizen was permitted to do at the front door.
The court held that this was a warrantless search under Jardines.
Here, there were no exigent circumstances to justify the warrantless entry.
Relevant factors for determining whether exigent circumstances were present to effectuate an arrest include whether
(1) the crime under investigation was recently committed;
(2) there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained;
(3) a grave offense was involved, particularly a crime of violence;
(4) there was reasonable belief that the suspect was armed;
(5) the police officers were acting on a clear showing of probable cause;
(6) it was likely that the suspect would escape if he was not swiftly apprehended;
(7) there was strong reason to believe that the suspect was in the premises; and
(8) the nonconsensual entry was made peaceably.
No list of factors is exhaustive and the factors listed above are guidelines, rather than cardinal maxims to be applied rigidly in each case.
The court acknowledged that the crime under investigation was recently committed, the entry was peaceable, and there was probable cause to believe that defendant committed a crime and that evidence was in the home.
Further, the record does not suggest that the police delayed their entry.
However, the circumstances indicate that the officers could have obtained a warrant without risk that the evidence would be destroyed. If the destruction of narcotics is the primary motivation for the warrantless entry, the police must have particular reasons to believe that the evidence will be destroyed for exigent circumstances to arise.
The state did not provide any evidence of urgency.
It’s is entirely speculative to say the unknown man was in the house destroying evidence. He could have just as easily just left the scene.
The court recognized that the lines between single family homes and multiunit apartment buildings may not always be crystal clear, but an officer working under non-exigent circumstances can always satisfy fourth amendment requirements by presenting evidence of probable cause to a neutral magistrate and obtaining a warrant.
Reversed & Remanded
With no basis for avoiding the exclusionary rule, we find that the evidence in this case should have been suppressed.
Further, without the suppressed evidence of the narcotics, the State cannot prove that defendant possessed the narcotics and his conviction must be reversed outright.