People v. Brandt, 2019 IL App (4th) 180219 (April). Episode 621 (Duration 17:08)

Police use their own sense of smell to go get a warrant for a house.

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Charges

Defendant was charged by information with unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(a)(2)(B) (a substance containing cocaine)) and unlawful possession with intent to deliver cannabis (720 ILCS 550/5(d)).

Facts

The South Central Illinois Drug Task Force (Task Force) received an anonymous call that defendant was selling drugs from his home.  Inspectors decided to conduct a “knock and talk” at defendant’s home in hopes of obtaining defendant’s consent to search the home. Three agents drove to defendant’s home to conduct the “knock and talk.”

The three officers drove in separate vehicles.

Defendant lived way out in rural Jersey County. His house was the only one out there. An officer parked underneath and open window with a fan blowing air outside. She immediately smelled the odor of cannabis. Defendant refused to give consent and then he left. Police stayed, secured the outside, and went to get a warrant.

The execution of that warrant resulted, in part, in the discovery of a sandwich bag containing approximately nine grams of cannabis in a cabinet above the kitchen window.

Trial Court Grants The Motion

The trial court granted the motion to suppress holding in part that,

“Placing a trained drug task force officer near an open window of a home when the possession and sale of cannabis is suspected is, in this court’s view, akin to bringing a drug dog on a person’s front porch (Jardines, 569 U.S. 1) or on a third floor landing outside a defendant’s apartment door within a locked apartment building (Burns, 2016 IL 118973). As such, this court finds that the intrusion into the curtilage of the defendant’s home, namely the open window, under these circumstances was unlawful and cannot be used to support the search warrant.”

Issue

Defendant argued, in part, the alleged detection of the odor of cannabis outside his home should not have been considered when reviewing the complaint for a search warrant, as it was detected during an unlawful search of the curtilage of his home and, without that evidence, probable cause to support the search warrant was lacking.

At issue is the correctness of the trial court’s order granting defendant’s motion to suppress.

The court granted defendant’s motion based on its determination Sergeant Gordon detected the odor of cannabis during an unlawful intrusion into the curtilage of defendant’s home and, without that evidence, probable cause to support the search warrant was lacking. The State asserts this determination was in error, as the evidence showed the sergeant parked at defendant’s home for the lawful purpose of conducting a “knock and talk” and then plainly detected the odor of cannabis upon exiting her vehicle, which she parked in the most appropriate place under the totality of the circumstances.

Defendant disagrees, contending the sergeant’s decision to park her vehicle in a nonpublic area next to an open window with a fan blowing out when he was standing in his front yard was an improper intrusion into the curtilage of his home.

Knock & Talks

The Supreme Court has recognized a police officer may lawfully “approach a home and knock” without a warrant. Jardines, 569 U.S. at 8. The Court found such an intrusion to be lawful given the implicit license any private citizen has to do the same. Id. This procedure has been referred to as a “knock and talk.” See Carroll v. Carman, 574 U.S. ___, ___, 135 S. Ct. 348, 350-52 (2014); People v. Kofron, 2014 IL App (5th) 130335, ¶ 24, 16 N.E.3d 371; People v. Woodrome, 2013 IL App (4th) 130142, ¶ 23, 996 N.E.2d 1143; People v. Redman, 386 Ill. App. 3d 409, 418, 900 N.E.2d 1146, 1155 (2008).

“The purpose of a ‘knock and talk’ is not to create a show of force, nor to make demands on occupants, nor to raid a residence. Instead, the purpose *** is to make investigatory inquiry or, if officers reasonably suspect criminal activity, to gain the occupants’ consent to search.” United States v. Gomez-Moreno, 479 F.3d 350, 355 (5th Cir. 2007), overruled on other grounds by Kentucky v. King, 563 U.S. 452 (2011).

A “knock and talk,” when performed within its proper scope, is not a search for fourth amendment purposes. The Supreme Court has stated complying with the terms of the traditional invitation to approach a home and knock “does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” Jardines, 569 U.S. at 8.

When reviewing a police officer’s actions during a “knock and talk,” our courts have focused the reasonableness of the officer’s actions given the totality of the circumstances presented. See Woodrome, 2013 IL App (4th) 130142, ¶¶ 23-28; Redman, 386 Ill. App. 3d at 418-20; Kofron, 2014 IL App (5th) 130335, ¶¶ 24-27. We have specifically considered whether the manner in which an officer approached a home to conduct a “knock and talk” constituted “reasonable police actions.” Woodrome, 2013 IL App (4th) 130142, ¶ 27.

See Also

• Episode 328 – Litigating “Knock And Talk” Warrantless Entries With Alana De Leon 
• Episode 014 – People v. Kofron, 2014 IL App (5th) 130335 (August) (What is a Knock and Talk? Are They a Good Idea?)

The Jardines Quote

Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S.___, ___ (2011) (slip op., at 16). But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker.

Officer Was Not A Dog

Initially, we outright reject the trial court’s suggestion that placing a trained drug task force officer near an open window of a home when the possession and sale of cannabis is suspected is “akin” to bringing a drug dog on a person’s front porch or on a third-floor landing outside an apartment door within a locked apartment building.

As the State argues, a police officer is not a special instrument designed to sense what a human being cannot, like a narcotics K-9. See Jardines, 569 U.S. at 9 (“To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”).

Officer Had A Right To Be There

The officer who smelled the cannabis had a lawful right to be where she was.

When an officer enters into the curtilage of a home for the lawful purpose of conducting a “knock and talk” and his or her movements are restricted to places visitors could be expect to go, a search does not occur when that officer observes what is in plain view or detects what is in plain smell. Redman, 386 Ill. App. 3d at 419; see also United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir. 2003) (“[W]hen the police come on to private property to conduct an investigation *** and restrict their movements to places visitors could be expected to go ([e.g.], walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.”).

Holding

Because Sergeant Gordon plainly detected the odor of cannabis in a place where she had a lawful right to be, no fourth amendment violation occurred. The trial court erred in excluding this evidence when considering whether the search warrant was supported by probable cause.

Reversed and remanded.

See Also

• Episode 609 – People v. Thomas, 2019 IL App (1st) 170474 (March) (Police Chase Some Men, See A Gun And Arrest Them – Is That Legal?)
• Episode 552 – People v. Bonilla, 2018 IL 122484 (October) (Supreme Court Is Pushed To Decide If Apartments Have Less Constitutional Protection Than Houses)
• Episode 464 – Recap of the Apartment v. House Controversy
• Episode 595 – In re K.M., 2019 IL App (1st) 172322 (February) (Police Still Haven’t Quite Got The Hang Of This Property Based Rights Thing When They Trample Onto Private Property)
• Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?)
• Episode 601 – People v. Holmes, 2019 IL App (1st) 160987 (March) (Police Told Man Has A Gun An Unconstitutional Stop Then Happens)