People v. Bonilla, 2017 IL App (3d) 160457 (June). Episode 364 (Duration 15:16)
Constitutional violation did not depend on whether the common door to the apartment was locked.
On a tip police bring a dog to an apartment complex in Moline, Illinois.
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, the canine officer walked his drug-detection dog down some of the common-area hallways.
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.
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.
A Short Review
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.
If applicable, the property-based approach should be applied first.
First of all, 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.
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.
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.
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.
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.
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.
Again, 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).
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 Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013).
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.
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.
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.
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.
See People v. 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.
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.
This court could not 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. The fourth amendment draws a firm line at the entrance to the home as the home is first among equals in the protected areas specified in the fourth amendment.
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.
In providing that protection, the fourth amendment does not differentiate as to the type of home involved.
The court acknowledged 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.
Nonetheless, the state’s arguments were rejected based on the above analysis.