People v. Long

2025 IL App (2d) 240237

• Court: Appellate Court of Illinois
• Decided: August 11, 2025
• Docket: 2-24-0237
• Status: Published

Opinion

2025 IL App (2d) 240237 No. 2-24-0237 Opinion filed August 11, 2025 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellant, ) ) v. ) No. 23-CF-1186 ) CLISHAUN LONG, ) Honorable ) Patricia S. Fix, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson concurred in the judgment and opinion. Presiding Justice Kennedy dissented, with opinion.

OPINION

¶1 After a gun was found in his possession as he attempted to enter Six Flags Great America

theme park (Six Flags) in Gurnee, defendant, Clishaun Long, was arrested and charged with

various weapon offenses. Defendant moved to suppress evidence recovered during the warrantless

search of his belongings. The trial court granted the motion, and the State now appeals. We reverse

and remand for additional proceedings.

¶2 I. BACKGROUND

¶3 On June 17, 2023, defendant and his wife attempted to enter Six Flags. Defendant was

prevented from doing so after an X-ray scanner indicated that a bag he was trying to bring into the 2025 IL App (2d) 240237

park contained a gun. Defendant was subsequently arrested and charged with one count of

unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)) and two counts

of aggravated unlawful use of a weapon (id. § 24-1.6(a)(1), (a)(3)(A-5); (a)(1) (a)(3)(C)). On

December 13, 2023, defendant filed a motion to suppress evidence, arguing that he was detained

without cause and that the police search of his bag was illegal.

¶4 On February 7, 2024, the trial court conducted a hearing on defendant’s motion to suppress

evidence. David Angelici, Six Flags’ security supervisor, testified that firearms are not permitted

in Six Flags. There are signs informing guests of this fact when they drive into the park. As such,

no guest may enter Six Flags without a security screening, which first entails passing through a

metal detector that sets off an alarm if a “higher” metal density is detected on the guest’s person

or in a personal bag. The detector generates an image showing the location of the higher metal

density, whether on the guest’s person or in an accompanying bag. After the alarm is set off,

security personnel determine the type of secondary screening that is appropriate. Depending on

whether the metal object is detected on the guest’s person or in a personal bag, the secondary

screening entails scanning the guest’s person with a hand wand or running the bag through an X-

ray scanner to determine whether it contains any items prohibited by Six Flags. Images on the X-

ray determine the next step in the screening process. If a guest does not want to proceed with a

secondary screening, the individual is permitted to leave.

¶5 On the day in question, Angelici was alerted that Six Flags’ X-ray scanner was displaying

an image of a gun in a guest’s diaper bag. Angelici proceeded to the X-ray scanner and saw a clear

image of a handgun on the scanner’s screen. Angelici took the bag and identified defendant as the

guest who brought the bag to Six Flags. Defendant asked if he could take the gun back to his car.

Angelici told him that he could not as the Gurnee police would determine if defendant had a

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concealed carry license (CCL) or some other reason to allow him to return the weapon to his car.

Angelici asked defendant if he had a CCL. Defendant replied that he did not.

¶6 Angelici testified that he never opened the bag. He waited with defendant for Gurnee police

officers to arrive. He explained that the Gurnee Police Department had officers stationed at Six

Flags in a small on-site office near the entrance. When the officers arrived, Angelici informed

them that the bag was defendant’s and that there was a gun inside. He handed them the bag. The

officers then escorted defendant to their on-site office.

¶7 Gurnee police officer Nathaniel Rock testified that he and his field training officer were at

Six Flags to assist Officer Butur (first name not given) on the day of the incident. After learning

that Six Flags’ security personnel might have discovered a weapon, the officers went to assist. It

took them 10 to 20 seconds to get from their office to the Six Flags security gate. As soon as he

and Butur got to the security gate, he heard defendant saying that he had a gun in the bag. He heard

Six Flags’ security personnel asking defendant if he had a CCL or a Firearm Owners Identification

(FOID) card and defendant responding that he had neither. Rock and the other officer then asked

defendant and his wife if either of them had a CCL or a FOID card. They confirmed that they did

not.

¶8 Rock saw that Six Flags’ security personnel had a bag, which they said contained a weapon.

Butur took the bag and escorted defendant and his wife to the Gurnee Police Department’s on-site

office. Rock considered defendant and his wife “detained” at that point “for investigation.”

Defendant did not give the officers his name, but they learned it from his wife and confirmed that

defendant was not legally allowed to possess a gun.

¶9 At the time of the incident, Rock was wearing a body camera. A video recording from the

camera was admitted into evidence and played at the hearing. The video showed, inter alia, a Six

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Flags security officer hand a bag to a Gurnee police officer. That officer brought the bag to the

Gurnee Police Department’s on-site office and placed it on the floor behind a desk. There was a

bench running along the wall opposite the desk. Throughout the encounter shown on the video

recording, defendant was either seated on or standing directly in front of the bench. Eventually,

Rock picked up the bag and took it to a different room. A few minutes later—roughly 20 minutes

after defendant was brought into the office—Rock and another officer began removing various

items from the bag, including cloths or towels, a zippered pocketbook or wallet, and plastic bags

containing various objects. They also retrieved and opened a zippered case with a loaded handgun

inside. Rock testified that defendant’s Social Security card was found in the case next to the

weapon.

¶ 10 At the close of the hearing, the trial court granted defendant’s motion to suppress evidence.

The trial court found that the warrantless search of the bag implicated defendant’s fourth

amendment rights (see U.S. Const., amend. IV). The trial court further found that none of the

exceptions to the warrant requirement applied.

¶ 11 Following the denial of its motion to reconsider, the State filed a timely notice of appeal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, the State argues that the trial court erred in concluding that the warrantless

search of the bag was unlawful. The State contends that the fourth amendment was not implicated

because defendant voluntarily consented to the search of his belongings by security in order to

enter the park. The State further insists that the police officers did not need a warrant to search

defendant’s bag once they had probable cause to believe that defendant’s bag contained a gun.

¶ 14 In response, defendant does not dispute that he consented to his bag being screened by Six

Flags’ security personnel. He also does not deny that his bag contained a gun and that the police

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were justified in seizing his bag while they investigated. He insists, however, that he never

consented to the Gurnee police officers searching his bag and that their search violated his fourth

amendment rights. He therefore maintains that the trial court properly granted his motion to

suppress.

¶ 15 Defendant bears the burden of proving a search was unlawful in a motion to suppress. 725

ILCS 5/114-12(b) (West 2022). In determining whether a trial court has properly ruled on a motion

to suppress, findings of fact and credibility determinations made by the trial court are accorded

great deference and will be reversed only if they are against the manifest weight of the evidence.

People v. Slater, 228 Ill. 2d 137, 149 (2008). Where neither the facts nor credibility of the witnesses

is at issue, we may conduct a de novo review to determine if law enforcement had sufficient facts

to support their decision to search. People v. Froio, 198 Ill. App. 3d 116, 121 (1990). Our review

as to the ultimate question of whether the motion to suppress should be granted is de novo. People

v. McCavitt, 2021 IL 125550, ¶ 53.

¶ 16 The fourth amendment to the United States Constitution protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const., amend. IV. “Accordingly, to claim the protection of the fourth amendment,

a defendant must demonstrate that he or she personally has an expectation of privacy in the place

searched and that his or her expectation is reasonable.” People v. Pitman, 211 Ill. 2d 502, 514

(2004). Our supreme court has stated that the following factors should be considered when

determining whether a defendant possessed a reasonable expectation of privacy in the place

searched:

“(1) ownership of the property searched; (2) whether the defendant was legitimately

present in the area searched; (3) whether defendant has a possessory interest in the area or

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property seized; (4) prior use of the area searched or property seized; (5) the ability to

control or exclude others from the use of the property; and (6) whether the defendant

himself had a subjective expectation of privacy in the property.” Id. at 520-21.

¶ 17 Under the privacy-based approach, the fourth amendment protects a person only to the

extent that the person has a subjective expectation of privacy in the area searched that society

recognizes as reasonable. Id. “Whether one has a legitimate expectation of privacy in an area

searched is measured by an objective standard drawn from common experience.” People v.

Rosenberg, 213 Ill. 2d 69, 78 (2004). The burden of establishing a legitimate expectation of privacy

lays with the defendant. Id. Whether a defendant has a legitimate expectation of privacy is

determined by the totality of the circumstances of the particular case. People v. Johnson, 114 Ill.

2d 170, 192 (1986). There is no bright-line rule. McCavitt, 2021 IL 125550, ¶ 60.

¶ 18 It is well-recognized that a person does not have a “reasonable expectation of absolute

privacy” in certain places “where all members of the public [are] subject to a routine search.”

Commonwealth v. Gillespie, 103 A.3d 115, 120 (Pa. Super. Ct. 2014). “[B]y presenting oneself at

a sensitive facility’s security checkpoint, one implicitly consents to the screening and search of

one’s belongings.” Day v. State, 829 S.E.2d 418, 420 (Ga. Ct. App. 2019) (citing United States v.

Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984) (“those presenting themselves at a security

checkpoint thereby consent automatically to a search, and may not revoke that consent if the

authorities elect to conduct a search”)); McSweeney v. State, 358 S.E.2d 465, 467 (Ga. Ct. App.

1987) (passenger who presents himself to an airport security checkpoint has consented to the

screening of his luggage and his person). Accordingly, “when a person with notice of such

impending search seeks entry into such a restricted area, he or she relinquishes any reasonable

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expectation of privacy and impliedly consents to the search.” People v. Rincon, 581 N.Y.S.2d 293,

295 (App. Div. 1992).

¶ 19 Here, Six Flags posts signs stating that firearms are not permitted in the park. Before

entering the park, Six Flags requires all guests to pass through a metal detector screening. As the

screening area is situated immediately in front of the park entrance, it is obvious to all guests that

they must submit to that screening before entering the park. If, upon reaching that security check,

a guest elects to proceed through it, then he necessarily “relinquishes any reasonable expectation

of privacy and impliedly consents to the search.” Id.

¶ 20 Defendant insists that he had the right to limit what type of search Six Flags’ security

personnel could conduct. Specifically, he maintains that he only consented to an X-ray search of

his belongings and not a tactile search. In making this argument, defendant miscomprehends his

relationship with Six Flags. In United States v. Francoeur, 547 F.2d 891, 893-94 (5th Cir. 1977),

the Fifth Circuit discussed the relationship between an amusement park (in that case, Disney

World) and its guest:

“Disney World is not an open town fully accessible and available to all commerce. This

private property is an amusement park to which admission is charged. *** No one is

permitted into the outer gates of Disney World except by consent of the owners.

If the owners of this amusement park impose in an illegal manner on their clientele,

such imposition, if in violation of statutes forbidding trespass, assault, false arrest, or any

other offense, would subject the owners to a civil suit on behalf of the injured person. Such

illegal conduct would not, however, give them the protection of the Fourth Amendment

and the exclusionary rule which has developed from it.”

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¶ 21 As such, in a relationship between an amusement park and a guest, the matter of consent

resides with the owners of an amusement park. Id. For the owners of the park to consent to someone

entering its private property, it may require that person to consensually undergo a search for

firearms or other prohibited items. This is inherently reasonable on at least two grounds. First, the

amusement park’s business would likely suffer through reduced attendance if potential visitors

were concerned that fellow visitors to the park were carrying firearms. See generally United States

ex rel. Sanders v. Allison Engine Co., 196 F.R.D. 310, 314 (S.D. Ohio 2000) (observing that it

would be bad for business for companies to abandon safety reviews). Second, by inadequately

monitoring whether guests were bringing firearms into the park, the amusement park could be

subjecting itself to civil liability for failing to take precautions to keep people with firearms out of

the park. See Barr v. Cunningham, 2017 IL 120751, ¶ 20 (describing willful and wanton conduct

as the failure to take reasonable precautions after having knowledge of impending danger).

¶ 22 Of course, this principle does not allow an amusement park to conduct a search in an

outrageous fashion because, as Franceour states, that too could lead to civil liability. Francoeur,

547 F.2d at 893-94. However, nothing in this case suggests that the search of defendant’s bag was

overzealous. As such, if a person does not want to subject himself or his belongings to a search,

his recourse is to not go into the park. See MacWade v. Kelly, 460 F.3d 260, 270 (2d Cir. 2006)

(an individual may avoid search of his bag under the Metropolitan Transportation Authority’s mass

transit search program as long as he leaves the subway). Once he decides to enter the amusement

park, he does not have the power to limit the type of search that security personnel may conduct

of his belongings.

¶ 23 We recognize here that Six Flags’ search consisted of only a metal detector and an X-ray

machine. However, that does not mean that defendant consented to only those type of searches.

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Angelici explained that “[t]he images on the x-ray machine will determine what the next step

potentially would be.” If the images on the X-ray are inconclusive as to what the heavy metal

object is, then the next logical step would have been for the security personnel to conduct a search

of the bag by hand to determine what the heavy metal object was. See Russell v. State, 2024 WY

126, ¶ 19, 559 P.3d 597 (Wyo. 2024) (“[f]ollow-up searches conducted after an x-ray or

magnetometer has alerted, including pat-downs and examination of the contents of items, are also

common and effective measures taken at *** security checkpoints”); see also Herzbrun, 723 F.2d

at 778 (upholding as reasonable follow-up search after bag passed through X-ray machine). It is

apparent that the search did not proceed further because the image on the X-ray was not

inconclusive—it clearly revealed a gun—and because defendant acknowledged that there was a

gun in the bag and that he did not possess a CCL or FOID card.

¶ 24 The next issue becomes the relationship between the search defendant consented to by Six

Flags’ security personnel and the later search by the Gurnee police officers. Our supreme court

discussed this type of relationship in People v. Phillips, 215 Ill. 2d 554, 566-67 (2005), stating:

“The fourth amendment applies only to government action. United States v.

Jacobsen, 466 U.S. 109, 113 *** (1984). A search by a private person does not violate the

fourth amendment. Jacobsen, 466 U.S. at 115 ***. Further, the fourth amendment does not

prohibit the government from using information discovered by a private search, because

the private search has already frustrated any expectation that the information will remain

private. Jacobsen, 466 U.S. at 117 ***. ‘The Fourth Amendment is implicated only if the

authorities use information with respect to which the expectation of privacy has not already

been frustrated. In such a case the authorities have not relied on what is in effect a private

search, and therefore presumptively violate the Fourth Amendment if they act without a

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warrant.’ Jacobsen, 466 U.S. at 117-18 ***. Thus, where the government uses privately

discovered information to investigate a crime without first obtaining a warrant, the fourth

amendment question is whether the investigation ‘exceeded the scope of the private

search.’ Jacobsen, 466 U.S. at 115 ***.”

¶ 25 Here, as defendant consented to his bag being searched by Six Flags’ security personnel,

any expectation of privacy had already been relinquished by the time that the Gurnee police

officers searched his bag. The police officers’ subsequent search revealed no new material

information but rather confirmed what they already knew—that defendant had a gun in his bag.

Thus, the police officers’ search of defendant’s bag did not exceed the scope of Six Flags’ search

and did not violate defendant’s fourth amendment rights. See People v. Clendenin, 238 Ill. 2d 302,

329 (2010) (police search does not exceed the scope of a private search if it merely confirms the

results of private search or obtains no new material information).

¶ 26 Defendant insists that the Gurnee officers’ tactile search of his bag was more invasive than

the X-ray scan Six Flags’ security personnel conducted and therefore necessarily exceeded the

scope of that private search. This argument relies on the premise that he had the power to limit

what type of search Six Flags’ security personnel conducted. As explained earlier, once he decided

to submit the bag to X-ray screening, his expectation of privacy was thwarted, and he could not

limit what type of search was conducted. See Russell, 2024 WY 126, ¶ 19. Further, as the screening

revealed contraband—the gun which defendant admitted he was not allowed to possess—that also

eliminated any privacy interest he had in the continued possession of the firearm. See People v.

Hill, 2020 IL 124595, ¶ 29 (“No one possesses a legitimate interest in contraband.”).

¶ 27 Defendant next argues that the police search went beyond the scope of Six Flags’ search

because it led to new material information; that the gun was loaded with ammunition and that

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defendant’s Social Security card was in a zippered case with the gun. Defendant’s argument is

flawed because it again maintains that he had some expectation of privacy in his bag after he

submitted it to an X-ray screening. Once that X-ray scan revealed a gun, which defendant

acknowledged he was not authorized to have, he lost all possessory interest in that gun as well as

the ammunition therein. Id. Further, as to his Social Security card, beyond having no privacy

interest in the bag he submitted for screening, we also note that the card provided no new material

information to the police. At most, the Social Security card connected defendant to the gun.

However, that was not new information as the police officers were already aware that defendant

had acknowledged that the gun was his.

¶ 28 As defendant did not have a privacy expectation in his bag, the trial court erred in holding

that the police needed a warrant to search that bag. See Clendenin, 238 Ill. 2d at 331. We note that

this determination is also consistent with our supreme court’s decision in People v. Jones, 215 Ill.

2d 261 (2005). In Jones, our supreme court considered whether a police officer needed a warrant

to search a container (a “one-hitter” box) which he believed contained contraband (cannabis). The

Jones court discussed how:

“the United States Supreme Court has ‘made it clear that there are exceptions to the warrant

requirement. When faced with special law enforcement needs, diminished expectations of

privacy, minimal intrusions, or the like, the Court has found that certain general, or

individual, circumstances may render a warrantless search or seizure reasonable.’ ” Id. at

269 (quoting Illinois v. McArthur, 531 U.S. 326, 330 (2001)).

¶ 29 The Jones court then explained one of the recognized exceptions to the warrant

requirement—the plain view doctrine:

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“During [an] investigative stop, police may seize an object without a warrant if the

encounter meets the requirements of the plain view doctrine: (1) the officers are lawfully

in a position from which they view the object; (2) the incriminating character of the object

is immediately apparent; and (3) the officers have a lawful right of access to the object.

[Minnesota v. Dickerson, 508 U.S. 366, 374-75 (1993)] (and cases cited therein). The

‘ “seizure of property in plain view involves no invasion of privacy and is presumptively

reasonable, assuming that there is probable cause to associate the property with criminal

activity.” ’ (Emphasis in original.) Texas v. Brown, 460 U.S. 730, 741-42 *** (1983)

(plurality op.), quoting Payton v. New York, 445 U.S. 573, 587 *** (1980). ‘Plain view’

requires probable cause to permit a seizure. Arizona v. Hicks, 480 U.S. 321, 326 *** (1987).

However, if police lack probable cause to believe that an object in plain view is contraband

without conducting some further search of the object, i.e., if the incriminating character of

the object is not immediately apparent, the plain view doctrine cannot justify the seizure.

Dickerson, 508 U.S. at 374-75 *** (and cases cited therein).” Id. at 271-72.

¶ 30 The supreme court then expounded:

“However, where the contents of a seized container are a foregone conclusion, this

prohibition against warrantless searches of containers under the plain view doctrine does

not apply. Courts have held that when a container is ‘not closed,’ or ‘transparent,’ or when

its ‘distinctive configuration proclaims its contents,’ the container supports no reasonable

expectation of privacy and the contents thereof can be said to be in plain view. Where law

enforcement officers already possess knowledge as to the contents of the container, the

search of the container does not unreasonably infringe upon the individual interest in

preserving the privacy of those contents.” Id. at 279.

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Applying these principles, the supreme court found relevant the police officer’s training and

experience that indicated “one-hitter” boxes contained cannabis. Id. at 281. The supreme court

then held that, based on the officer’s training and experience, his seizure and search of the

defendant’s “one-hitter” box did not violate the defendant’s fourth amendment rights. Id. at 281-

82.

¶ 31 This case presents a textbook example of when the contents of a seized container can be

considered a foregone conclusion. Here, at the time the police officers seized defendant’s bag, they

knew (1) Six Flags’ security personnel had observed a gun in defendant’s bag on an X-ray scan

and (2) defendant himself had acknowledged in their presence that there was a gun in the bag. The

police officers also knew from defendant’s statements that he did not have a right to possess that

gun. Based on the police officers’ knowledge that defendant’s bag contained a gun, they had

probable cause to associate defendant’s bag with criminal activity. See id. at 272. Their subsequent

search of defendant’s bag therefore did “not unreasonably infringe upon the individual interest in

¶ 32 We note that the record herein supports a finding that the contents of the container was a

“foregone conclusion” even more so than in Jones. There, the supreme court explained that, based

on the officer’s training and education, the officer had a “virtual certainty” that the “one-hitter

box” he observed contained cannabis. Id. at 282. Here, the record demonstrates that the police

officers had absolute certainty that a gun was in the bag because both Six Flags’ security personnel

and defendant had said as much.

¶ 33 Defendant attempts to distinguish Jones on the basis that Jones only applies to the search

of automobiles. Although Jones involved a police officer’s search of a vehicle, the supreme court

never stated that its analysis was somehow restricted to vehicle searches. Indeed, in explaining its

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decision, the supreme court relied on cases that did not involve vehicle searches. See id. at 279

(citing United States v. Williams, 41 F.3d 192, 197-98 (4th Cir. 1994) (involving search of suitcase

at airport), and United States v. Eschweiler, 745 F.2d 435, 440 (7th Cir. 1984) (involving search

of envelope found in overcoat in the defendant’s apartment and seizure of a key therein)).

Moreover, numerous courts have since applied Jones to situations that did not involve vehicle

searches. See, e.g., People v. Jannusch, 2021 IL App (2d) 190676-U ¶¶ 5, 19 (involving search of

the defendant’s purse at a bookstore); People v. Jordan, 2021 IL App (3d) 190638-U, ¶¶ 7, 40

(involving search at the defendant’s apartment); People v. Garrett, 2013 IL App (1st) 110597-U

¶¶ 3, 14 (involving search of the defendant on a sidewalk). 1

¶ 34 Accordingly, as defendant’s consent to a private search of his bag revealed a gun that he

was not legally allowed to possess, the police officers were authorized to search defendant’s bag

without a warrant based on (1) defendant’s consent and (2) probable cause as the police officers’

knowledge that defendant’s bag contained a gun was a “foregone conclusion.” The trial court

therefore erred in suppressing the evidence that the police officers discovered when searching that

bag. See Clendenin, 238 Ill. 2d at 331.

¶ 35 In so ruling, we note that the dissent goes to great lengths to denigrate our opinion as

contrary to “existing precedent” and leading to an “unwarranted and unwise expansion of fourth

amendment exceptions.” Infra ¶ 44. In doing so, the dissent premises its argument on facts contrary

1 Even though these decisions were unpublished, we may still consider them as persuasive authority.

See Illinois Supreme Court Rule 23(e)(1) (eff. Feb. 1, 2023) (“a nonprecedential order entered under subpart

(b) of this rule on or after January 1, 2021, may be cited for persuasive purposes”); People v. Ingram, 2020

IL App (2d) 180353, ¶ 21 n.1 (considering unpublished orders entered before January 1, 2021, as persuasive

authority).

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to both the record and common sense. The dissent claims that there was no testimony as to the

“presence of any signage or other form of notice that all bags and personal items are subject to

physical search.” Infra ¶ 50. Such an assertion ignores Angelici’s testimony that (1) there are signs

in the park informing guests that firearms are not permitted at Six Flags and (2) every guest must

pass through a security screening before entering the park. Based on Angelici’s testimony, it is

apparent that every reasonable person attending Six Flags is put on notice that firearms are not

allowed in the park and that Six Flags will enforce that rule by requiring guests to pass through a

security screening before entering the park. If that security screening reveals a possible firearm,

no reasonable person could believe that Six Flags would not have the right to investigate further,

which may include a physical search.

¶ 36 We have found no published opinion that considers that point controversial. See Gillespie,

103 A.3d at 120 (person does not have a “reasonable expectation of absolute privacy” in certain

places “where all members of the public [are] subject to a routine search”); Day, 829 S.E.2d at 420

(“by presenting oneself at a sensitive facility’s security checkpoint, one implicitly consents to the

screening and search of one’s belongings”); Herzbrun, 723 F.2d at 776 (“those presenting

themselves at a security checkpoint thereby consent automatically to a search, and may not revoke

that consent if the authorities elect to conduct a search”); McSweeney, 358 S.E.2d at 467 (passenger

who presents himself to an airport security checkpoint has consented to the screening of his

luggage and his person); Rincon, 581 N.Y.S.2d at 295 (“when a person with notice of such

impending search seeks entry into such a restricted area, he or she relinquishes any reasonable

expectation of privacy and impliedly consents to the search”).

¶ 37 The dissent attempts to distinguish the above cases on the basis that an amusement park

such as Six Flags is not a “sensitive facility” (infra ¶¶ 58-60) like the courthouses or airports at

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issue in those cases. The dissent’s premise for this argument seems to be that certain places like

courthouses, occupied by judges, lawyers, and elected officials, are entitled to more security than

places such as amusement parks, where attendees include families and young children. Although

the dissent is entitled to that opinion, it is not consistent with any court precedent or public policy

in our country.

¶ 38 Again, we emphasize that it was defendant’s burden to prove that the search at issue was

unlawful in his motion to suppress. 725 ILCS 5/114-12(b) (West 2022)). In order to meet that

burden, defendant had to “demonstrate that he *** personally ha[d] an expectation of privacy in

the place searched and that his *** expectation [was] reasonable.” Pitman, 211 Ill. 2d at 514.

Defendant did not have a reasonable expectation of privacy in the bag once he consensually

submitted it for screening. Day, 829 S.E.2d at 420. As such, the trial court erred in granting

defendant’s motion to suppress the evidence recovered from the bag.

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we reverse the judgment of the circuit court of Lake County

suppressing the evidence recovered from defendant’s bag. We remand for additional proceedings.

¶ 41 Reversed and remanded.

¶ 42 PRESIDING JUSTICE KENNEDY, dissenting:

¶ 43 This is a straightforward case in which a police search exceeded the scope of a private

search without a warrant or an exception to the fourth amendment’s warrant requirements. The

police here had ample time to obtain a search warrant or simply ask for consent to search; 2 instead,

2 Officer Rock testified that Gurnee P.D. use a “consent to search” form but said they do not use it

“when we have probable cause to search an item,” confusing the probable cause standard to seize an item

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they proceeded to open a closed bag and search all of its contents—including a smaller closed

container which they also opened—in order to find the gun in question. In fact, police were merely

told about the gun by private security; they were not shown an X-ray image nor did they view any

image of the gun before conducting their search. Simply stated, under these circumstances, the

police search violated the fourth amendment.

¶ 44 However, instead of affirming the trial court’s suppression of the fruits of this illegal search

consistent with the facts and existing precedent, the majority now declares that every person in

Illinois who submits a container of their personal effects for an X-ray by private security not only

gives up all expectation of privacy in such effects but also impliedly consents to a full and invasive

manual search of all items in the container by police—whether or not police observe the X-ray

search or view its resulting images. The facts of this case do not support such an unwarranted and

unwise expansion of fourth amendment exceptions, which portend a significant potential

contraction of individuals’ rights to be free from unreasonable government searches in public

accommodations that employ or contract with private security guards. For these reasons and those

that follow, I respectfully dissent.

¶ 45 The fourth amendment to the United States Constitution protects 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. The United States Supreme Court has interpreted the fourth

amendment “as establishing rules and presumptions designed to control the conduct of law

enforcement officers that may significantly intrude upon privacy interests.” Illinois v. McArthur,

with the standard necessary to conduct an invasive search. Officer Rock also testified that neither he nor

his fellow officers called the state’s attorney’s office prior to conducting their search of the bag.

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531 U.S. 326, 330 (2001). Police searches conducted without warrants are presumptively

unreasonable. Groh v. Ramirez, 540 U.S. 551, 572 (2004) (Thomas, J., dissenting, joined by Scalia,

J.); Katz v. United States, 389 U.S. 347, 357 (1967) (“searches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well-delineated exceptions”).

¶ 46 The government is required to show that any warrantless search was valid under an

exception to the warrant requirement. United States v. Doe, 61 F.3d 107, 111 (1st Cir. 1995). It is

well established that “[a] warrant is generally required for the search of luggage or any other

container of personal effects.” People v. Bayles, 82 Ill. 2d 128, 141 (1980); see United States v.

Chadwick, 433 U.S. 1, 13 (1977) (“[A] person’s expectations of privacy in personal luggage are

substantially greater than in an automobile.”). Moreover, “a defendant can have a legitimate

expectation of privacy with respect to contraband placed in a closed, opaque container to conceal

it.” State v. Ramires, 152 S.W.3d 385, 400 (Mo. Ct. App. 2004).

¶ 47 Although probable cause “may support the warrantless seizure of an enclosed opaque

container [citation], the same probable-cause showing is not necessarily sufficient to justify its

subsequent warrantless search.” (Emphases in original.) Doe, 61 F.3d at 111 (distinguishing a

seizure, which is merely a temporary deprivation of a possessory interest, from a search, which

entails an intrusion upon privacy interests as well). Thus, “once an exigency ends, as by an arrest

or the seizure and custodial retention of a container by the police, a neutral judicial officer must

authorize any subsequent search on a showing of probable cause.” Id. (Emphasis in original). As

this court has put it, there is a “critical distinction between the police being in lawful possession

of defendant’s briefcase and their being lawfully inside of it.” People v. Hamilton, 56 Ill. App. 3d

196, 200 (1978).

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¶ 48 The majority here, in holding that the police needed no warrant to open the diaper bag and

rummage through it, concludes that (1) when defendant consented to the limited X-ray search

conducted by Six Flags security personnel, he no longer had any expectation of privacy in the

contents of the bag; (2) the search by Gurnee police did not exceed the scope of the private search

conducted by Six Flags security personnel; and (3) because it was a “foregone conclusion” that

the diaper bag contained contraband, no warrant was required under the plain view exception.

None of these overlapping (and sometimes circular) conclusions are justified under the facts of

this case.

¶ 49 As an initial matter, it should be noted that this record is not a sound factual foundation

upon which the majority can build its expansive legal holdings. As will be discussed in more detail,

crucial facts are missing from the record that might have justified the court’s conclusions, but

without which the majority’s holdings collapse. Only two witnesses testified at the hearing and

neither witnessed defendant’s actions at the magnetometer and X-ray machine. Only one of the

four (or perhaps five) police officers testified; his was the only body cam video entered into

evidence, and some of its audio is flatly inconsistent with the testimony.

¶ 50 More importantly, missing from the record is the factual support necessary for any of the

majority’s three main holdings. First, no one testified as to the presence of any signage or other

form of notice that all bags and personal items are subject to physical search, which might have

justified the assertion that defendant impliedly consented to a full physical search of the diaper

bag. Second, no private security employee actually opened the diaper bag, which, if they had,

would certainly have supported a subsequent police search of the same scope. Finally, no one

testified that the police ever saw the X-ray or resulting image, nor that any officer’s experience

and training supported his conclusion that the item was in fact a gun; such combined testimony

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might conceivably have justified the majority’s expansion of the plain view exception via the

“foregone conclusion” line of cases.

¶ 51 Without the support of facts in the record, the majority nonetheless proceeds to make new

law. As discussed below, its legal conclusions are likewise unsupported.

¶ 52 A circuit court’s ruling on a motion to suppress is reviewed under a two-part test: the

court’s factual findings may be rejected only if they are against the manifest weight of the

evidence; however, when the reviewing court analyzes the issues in light of the established facts,

it reviews de novo the trial court’s legal conclusions. People v. Harris, 228 Ill. 2d 222, 230 (2008).

Whether consent has been given is a question of fact to be determined initially in the circuit court.

People v. Pitman, 211 Ill. 2d 502, 527 (2004). Because appellate courts are not in a position to

observe witnesses as they testify, “[w]hen the evidence on the issue of consent is conflicting, this

court will uphold the circuit court’s finding unless it is clearly unreasonable.” Id.

¶ 53 Here, after hearing the witnesses, seeing the body camera video, and hearing the audio, the

trial court found that the government failed to establish an exception to the fourth amendment’s

warrant requirement, that defendant’s consent to search was limited consistent with the limited

private search conducted by Six Flags security, and that the police search exceeded that of Six

Flags. The court found that defendant did not implicitly or explicitly consent to a physical search

of the diaper bag or its contents, nor were the police otherwise justified under the facts presented.

These were reasonable factual findings based on the evidence presented, to which this court should

defer. Id. (“After reviewing the evidence presented at the suppression hearing, we cannot say that

the circuit court’s finding of no consent was unreasonable.”).

¶ 54 First, the trial court was correct in finding that defendant gave only limited consent to a

limited private search. Initially, by reportedly pushing the stroller through the metal detector,

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defendant impliedly consented to that type of screening, which simply detects the presence of “a

high density of metal,” according to Six Flags’ security supervisor Angelici. The use of a

magnetometer as a screening measure for personal effects is a type of “search” within the meaning

of the fourth amendment. United States v. Epperson, 454 F.2d 769, 770 (4th Cir. 1972). Next, by

placing the diaper bag on the X-ray belt, defendant consented to the taking of an X-ray image scan

of the diaper bag from outside the bag. An X-ray scan is also a search, although it “is certainly a

more intrusive device than the magnetometer.” United States v. Henry, 615 F.2d 1223, 1227 (9th

Cir. 1980).

¶ 55 However, these are both limited types of searches; neither is as intrusive as a “physical

search.” 3 Id. This is true despite the “express purpose [of magnetometers and X-ray scanners] ***

to search for guns and explosive devices.” Id. In fact, the X-ray scanner serves to “insure that the

screening process is no more extensive or intensive than necessary.” Id. at 1228.

¶ 56 It is self-evident that a physical search made by opening an opaque container with personal

effects inside is more intrusive than a magnetometer or X-ray; the latter methods merely scan the

container from the outside for the presence of only certain types of materials and do not involve

opening and entering a closed container. Because opening and physically searching the bag by the

police in this case was more intrusive than the magnetometer and X-ray “searches” made by private

security personnel, it is equally clear that the police search exceeded the scope of the private search.

3 The majority’s use of the term “tactile” to describe the search is misleading. Tactile means

“perceptible by touch.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2020). The term is typically

used to describe searches made by feeling or pressing a person’s pockets or purse or other items, not opening

a container.

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Consenting to one limited type of search is not co-extensive with unlimited consent to any and all

types of searches. See Florida v. Jimeno, 500 U.S. 248, 252 (1991).

¶ 57 The majority brushes past the limited scope of defendant’s consent and the relative extent

of the private and police searches that were actually conducted here, in favor of making a sweeping

declaration that, by placing the diaper bag on the X-ray belt, defendant forfeited all expectation of

privacy concerning the bag and its contents. For support, the majority cites several cases without

adding any analysis beyond a single quotation from each. Each case is clearly distinguishable.

¶ 58 For example, Day v. State, 829 S.E.2d 418, 419 (Ga. Ct. App. 2019), concerned the law

enforcement special needs exception for “sensitive facilities,” an exception to the fourth

amendment which has only been applied to “[a]irports, governmental buildings, and detention

facilities.” The defendant in Day “was a convicted offender reporting to a probation appointment”

by entering a state probation office, which the court found “ ‘presents special needs that may justify

departures from the usual warrant and probable-cause requirements.’ ” Id. at 420 (quoting

Whitfield v. State, 786 S.E.2d 547, 550 (Ga. Ct. App. 2016)). The Day court added that the

defendant’s “probationary status alone is yet another factor supporting the conclusion that Day had

a diminished expectation of privacy in the contents of her purse when she arrived at the

[government facility].” Id. at 420-21. Finally, “[n]otices posted on the walls inform[ed] those

entering the facility that anything on the person is subject to search.” Id. at 419. “[M]ultiple signs

clearly warn[ed]” of diminished privacy, and, the court noted, “by presenting oneself at a sensitive

facility’s security checkpoint, one implicitly consents to the screening and search of one’s

belongings.” (Emphases added.) Id. at 420. The Day court even clarified that special needs

searches were “ ‘limited searches at sensitive facilities.’ ” (Emphasis added.) Id. at 419 (quoting

McMorris v. Alioto, 567 F.2d 897, 899 (9th Cir. 1978). Here, in contrast, an amusement park is

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not considered a “sensitive facility,” such as an airport or governmental or detention facility;

defendant was not subject to diminished expectations of privacy at the park because of his

probationary status; and there is no evidence that any notices were posted to give defendant any

reason to believe his personal items would be searched by hand, either by Six Flags personnel or

anyone else. The concurrence in Day pointed out that “a limited warrantless search of a person

under this exception is only lawful if ‘conducted as part of a general regulatory scheme in

furtherance of an administrative purpose.’ ” Id. at 421 (Barnes, P.J., specially concurring) (quoting

United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). No such regulatory scheme was in

place here. Simply put, Day is inapplicable to the facts of the instant case.

¶ 59 Next, the majority cites Commonwealth v. Gillespie, 103 A.3d 115, 116 (Pa. Super. Ct.

2014), which concerned a police search at the entry point to a courthouse (another sensitive

government facility), conducted pursuant to a court administrative order granting authority to the

sheriff to search “ ‘[a]ll packages, briefcases and other containers in the immediate possession of

persons entering [the] Courthouse property.’ ” The court held that “the government has a

substantial interest in preventing people from bringing weapons into court facilities” and that the

courthouse’s administrative order furthered that interest without being excessively intrusive. Id. at

119-20. Further, the defendant was “on notice he would be searched. A sign posted at the

courthouse entrance informed visitors they must pass through a metal detector, they may be

searched, and ‘Any item that has the potential to cause harm will be confiscated.’ ” Id. at 120.

Again, unlike a courthouse, Six Flags is not cognizable as a “sensitive facility.” Also, no regulatory

or administrative scheme was in place at Six Flags pursuant to any special law enforcement needs,

and there was no evidence that a notice was posted advising that bags and personal items were

subject to physical search.

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¶ 60 Third, United States v. Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984), concerned a search

by security personnel 4 at an airport checkpoint. The Herzbrun court was careful to explain that

“airport security checkpoints and loading gates are sui generis under the fourth amendment.” Id.

at 775. The court explained that, “[d]ue to the intense danger of air piracy, we have long held that

these areas, like international borders, are ‘critical zones’ in which special fourth amendment

considerations apply.” Id. Additionally, similar to Day, in Herzbrun, “[s]igns posted on the

concourse informed passengers that if they passed through the checkpoint they would be subject

to a search.” Id. at 774.

¶ 61 Other “special needs” and “sensitive facilities” cases cited by the majority are likewise

inapposite. See Russell v. State, 2024 WY 126, ¶ 6, 559 P.3d 597 (Wyo. 2024) (courthouse security

checkpoint search by sheriff’s deputy); People v. Rincon, 581 N.Y.S.2d 293 (App. Div. 1992)

(courthouse search, where signs alerted visitors that “ ‘[a]ll persons entering this area must pass

through a detector device and submit to personal search if warranted’ ”); McSweeney v. State, 358

S.E.2d 465 (Ga. Ct. App. 1987) (airport security checkpoint search).

¶ 62 Undaunted, the majority implies that amusement parks like Disney World are equivalent

to a “sensitive facility” justifying diminished fourth amendment protection for its invitees, citing

United States v. Francoeur, 547 F.2d 891 (5th Cir. 1977). But that case does not stand for any such

4 The court noted the employment of the two individuals conducting the search was “pursuant to

security procedures mandated by the Federal Aviation Administration at 14 CFR § 121.538 (rev. 1979)”

(Herzbrun, 723 F.2d at 774 n.1), which refers to “certificate holders,” which are defined in the Code of

Federal Regulation as, inter alia, “air carriers” (14 C.F.R § 117.3 (2025)). While the Herzbrun court did

not distinguish between private versus government searches, it appears the security personnel in that case

were contractors, not government employees.

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proposition; it merely analyzes the scope of a private property owner’s search of a guest, saying

merely that an owner may require a guest to undergo a search as a condition of consent to entry on

private property. Id. at 893-94. Amusement parks are not recognized by our law as “sensitive

facilities” requiring special law enforcement needs to reduce fourth amendment protections.

Franceour merely restates the axiomatic proposition that “the Fourth Amendment gives protection

only against unlawful governmental action,” not against private actors. Id. at 893. As at Disney

World, Six Flags could decide to impose any level of search it wanted as a condition of entry

without violating the fourth amendment, simply because they are not governmental actors and are

not subject to the fourth amendment. 5 And just because they could impose stricter search

requirements does not mean they actually did so. Six Flags required a magnetometer screening

and, in case of an alert, an X-ray, not a full physical search of guests’ belongings. Their policy was

actually to the contrary; Angelici testified that “the policy is to hold it for verification,” which he

did “until [he] could give it to Gurnee officers.” But even if Six Flags had a blanket requirement

that its security personnel physically search guest bags, its personnel did not conduct such a search

in this case. Thus, we are again left with a limited private search by Six Flags, the scope of which

police exceeded in order to obtain evidence for criminal prosecution.

¶ 63 So the majority then flatly declares that defendant simply had no constitutionally

cognizable expectation of privacy in the first place: “once he decided to submit the bag to X-ray

screening, his expectation of privacy was thwarted, and he could not limit what type of search was

conducted.” Supra ¶ 26. This, of course, ignores the limited scope of defendant’s consent, which

was to a magnetometer screen and an X-ray, but the majority instead reframes the inquiry as

5 Of course, such actions could nonetheless incur civil liability. Francoeur, 547 F.2d at 894.

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whether defendant had the “power to limit what type of search Six Flags’ security personnel

conducted.” 6 Supra ¶ 26. The majority concludes that defendant could not “limit” the search,

reasoning that Six Flags could have conducted a more intrusive search, so any consequent search

becomes justified, even if Six Flags did not conduct it themselves. The majority defends this

logical leap by positing not only that defendant was subject to “the next logical step,” whatever

that might be, but also that this step would certainly have been a full physical search by police.

Supra ¶ 23. Simply put, if defendant was in for a dime of consent, he was in for a dollar—even if

Six Flags never demanded the full bill. This “logic” is inconsistent with fourth amendment

jurisprudence.

¶ 64 As an initial matter, it is well established that consensual searches are indeed limited in

scope by the terms of one’s consent. Jimeno, 500 U.S. at 252 (“A suspect may of course delimit

as he chooses the scope of the search to which he consents.”). The majority ignores cases

explaining the scope of consent and goes back to cases discussing the scope of a private search,

first citing People v. Clendenin, 238 Ill. 2d 302 (2010). But that case concerned a private actor, the

defendant’s girlfriend, who conducted a wide-ranging search of a computer disc belonging to the

defendant, found a file containing child pornography, then turned the disc over to police, who

viewed the video clip in question. Id. at 306. The court found that the girlfriend’s “search was of

sufficient scope to allow police to perform a general review of the files on the disc for the presence

of child pornography.” Id. at 327, 330. Specifically, the private actor’s “seizure and viewing of the

6 Worth noting here is the actual Six Flags’ screening procedures policy, which states that “the Guest

may terminate the search at any time even though they may have initially agreed to cooperate.” Only once

“something illegal” is found, according to Angelici’s testimony, does a guest lose his ability to withdraw

from screening.

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disc were not state action implicating the fourth amendment,” and the court held, “[t]here is no

evidence to support defendant’s contention that the scope of the investigation of the disc by

[police] exceeded [the private actor]’s prior, private search; it merely confirmed the results of the

private search.” Id. at 331. While the majority here wants to use the “merely confirmed” quote,

any fair reading of the case reveals that the court’s holding was consistent with cases cited therein,

that “ ‘learning with more precision what the video depicted’ did not expand the police

investigation beyond the scope of the [private actor]’s search.” Id. at 329 (citing People v. Phillips,

215 Ill. 2d 554, 567 (2005) (computer repair technician played for police a video clip of child

pornography found on the defendant’s computer)). The Clendenin court specifically held that “the

police search remained within the scope of the initial private search.” Id. at 327. Thus, Clendenin

and Phillips held that a private examination of computer disc files was not exceeded in scope when

police subsequently viewed the same files.

¶ 65 The majority also cites People v. Hill, 2020 IL 124595, ¶ 29, simply for the quote that “[n]o

one possesses a legitimate interest in contraband.” This cherry-picked sentence, however, does not

justify a warrantless search; instead, it explains why cannabis, despite being “decriminalized,”

remained illegal at the time and thus was still treated as contraband when found in an automobile.

Id. The majority’s citation to Russell, 2024 WY 126, is also inapposite. Russell involved a

courthouse checkpoint search under the special law enforcement needs analysis involving

diminished protections. Id. ¶ 17. It does not stand for the proposition that consent to search by a

private actor cannot be limited.

¶ 66 The private search exception to the fourth amendment’s warrant requirement is a “narrow

doctrine with limited applications.” United States v. Wilson, 13 F.4th 961, 968 (9th Cir. 2021). The

extent to which the doctrine excuses governmental noncompliance with the warrant requirement

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has an “unsettling” potential reach. Id. Under the doctrine, the police may “repeat the search” made

previously by a private party without a warrant, “but only when the government search does not

exceed the scope of the private one.” Id.

¶ 67 In Walter v. United States, 447 U.S. 649, 651-52 (1980) (opinion of Stevens, J., joined by

Stewart, J.), the private recipient of misdelivered obscene films notified the Federal Bureau of

Investigation (FBI), which seized the films and viewed them. The boxes containing the films had

“suggestive drawings” and “explicit descriptions of the contents.” Id. The private recipient opened

the boxes and attempted without success to view the film by holding it up to the light. Id. at 652.

The Supreme Court held that the FBI exceeded the scope of the private actor by going beyond the

physical bounds of the private search because “the private party had not actually viewed the films.”

Id. at 657. The court also found that the private search had only partially frustrated the defendant’s

expectation and did not “simply strip the remaining unfrustrated portion of that expectation of all

Fourth Amendment protection.” Id. at 659.

¶ 68 Of course, if the facts of this case were different, I would enthusiastically agree with the

majority’s scope of search conclusion: had the private security personnel actually opened and

searched the bag by hand in the same way the Gurnee police did, there would be no question that

the subsequent search by police would be permissible under the so-called “private search

doctrine,” which provides that “authorities typically may repeat a private search already conducted

by a third party but may not expand on it.” (Emphasis added.) United States v. Bebris, 4 F.4th 551,

560 (7th Cir. 2021). But the private search was exceeded by the police search and defendant’s

expectation of privacy was only partially frustrated by the private search, not completely

obliterated. Nonetheless, the majority takes the unprecedented step of applying the private search

doctrine to a purely hypothetical private search, thus holding that law enforcement officers may

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conduct any search that private actors could have conducted, whether they actually did so or not.

This is a stretch, to say the least. Setting aside the fact that Six Flags’ own policy explicitly

prohibited its security personnel from removing firearms from “a bag or purse” they have screened,

they did not, in fact, conduct a physical search inside the bag; ipso facto, no private physical search

inside the bag could be lawfully duplicated by police.

¶ 69 The majority argues:

“Angelici explained that ‘[t]he images on the x-ray machine will determine what the next

step potentially would be.’ If the images on the X-ray are inconclusive as to what the heavy

metal object is, then the next logical step would have been for the security personnel to

conduct a search of the bag by hand to determine what the heavy metal object was.” Supra

¶ 23.

In other words, the majority holds that, by allowing the diaper bag to be screened by a

magnetometer and X-ray scan, defendant implicitly consented to allow Six Flags security

personnel to take the “next logical step,” whatever that might be. According to the majority, that

step (which defendant should have somehow anticipated) was for Six Flags security personnel to

search the diaper bag by hand. This speculation not only contradicts Six Flags’ written policy and

Mr. Angelici’s testimony on the matter but also assumes facts that did not occur. The “logical next

step” was precisely the step that Six Flags security personnel actually took: to turn the bag over to

police officers who were presumably better equipped to investigate.

¶ 70 In addition, the majority invokes the private search doctrine to uphold the search conducted

by Gurnee police. As noted, that doctrine allows law enforcement officials to repeat a search

conducted by a private actor but not expand on it. The private search here—a metal detector

screening followed by an X-ray scan—revealed only the silhouettes of what appeared to be a

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handgun, keys, and possibly coins. These items were only a small portion of the contents of the

bag, most of which remained invisible to the X-ray scanner. The majority holds, however, that

when the police rummaged through the bag, they did not exceed the scope of the search conducted

by Six Flags security personnel and thus did not violate any subsisting expectation of privacy.

Although the search by police was clearly more intrusive and expansive than the search by the

private security personnel, the majority reaches this conclusion because the search by police did

not reveal anything “material” that had not already been discovered in the private search. The

majority evidently uses the word “material” to mean “incriminating.” 7 Under the majority’s

theory, anything else in the bag—in constitutional terms, defendant’s “papers[ ] and effects” (U.S.

Const., amend. IV)—is fair game. Thus, in the majority’s view, a search of the bag that revealed

contraband or incriminating evidence other than the gun would have been unlawful; but because

it revealed only personal items of no interest to law enforcement it was permissible. That

understanding turns the fourth amendment on its head, making it an impediment to law

enforcement while affording no protection to an individual’s right to privacy in personal items of

a possibly intimate nature that might be found in a closed, opaque bag.

¶ 71 The majority’s analysis stems from an overly broad reading of a few words in Clendenin,

238 Ill. 2d at 329, in its discussion of an earlier decision, Phillips, 215 Ill. 2d 554. In Phillips, the

defendant took his computer to a technician for repair. Id. at 559. After discovering a file that

appeared to be child pornography the technician alerted the police, who, after viewing the video

themselves, arrested the defendant. Id. The Phillips court held that, by viewing the precise same

video that the technician did, the police merely duplicated the technician’s private search; thus, the

7 As explained below, this understanding may be incorrect.

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search by police complied with the fourth amendment. The Phillips court rejected the defendant’s

argument that, because the technician had not given police a “ ‘particular[ized] description’ ” of

what the video depicted, the search was unreasonable. Id. at 567-68. The Phillips court observed

that “the police gained no new material information by viewing the video. They merely confirmed

[the technician’s] report that it appeared to be child pornography.” Id. at 567.

¶ 72 The majority crafts the offhand observation that the police gained no new “material”

information into a broad holding that no matter how much additional “nonmaterial” information

the police discover, they do not exceed the scope of the private search. I disagree. To assess

Phillips’s precedential effect, it is necessary to determine that case’s ratio decidendi. Kelley v.

Sheriff’s Merit Comm’n of Kane County, 372 Ill. App. 3d 931, 934 (2007). Doing so entails

ascertaining “(1) what facts were considered material by the court in the prior case, and (2) ‘what

proposition of law justified that decision on these material facts.’ [Citation.]” Panchinsin v.

Enterprise Cos., 117 Ill. App. 3d 441, 444 (1983). The significant facts in Phillips were that even

though the police examined the video more closely than the technician did, they saw nothing

(“material” or otherwise) that the technician had not already seen. The principle of law applicable

to the actual facts of the case was that “learning with more precision what the video depicted did

not take them beyond the scope of [the technician’s] search.” Phillips, 215 Ill. 2d at 567 (citing

United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990) (search by government agents “did

not exceed the scope of the prior private searches *** simply because they took more time and

were more thorough”)).

¶ 73 As noted, the majority apparently interprets the word “material,” as used in Phillips, to

refer to contraband or incriminating evidence. However, the Phillips court never defined or offered

any example to illustrate the meaning of “material.” Other courts that have used similar language

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to delimit the scope of a private search have been clearer on this point. For instance, in United

States v. Lowers, 715 F. Supp 3d 741, 752 (E.D.N.C. 2024) (quoting United States v. Jacobsen,

466 U.S. 109, 119 (1984)), the court explained that “a government search does not exceed a private

search when there is a ‘virtual certainty’ that the government search would reveal ‘nothing ... of

significance’ that the private search did not already reveal.” (Emphasis added.) “Something of

significance, in that context, refers to a noncontraband personal effect in which an individual could

have a reasonable expectation of privacy.” Id. at 757. I would interpret “material” to mean the

same thing as “significant.” That interpretation better conforms to the values underlying the fourth

amendment than the majority’s interpretation does.

¶ 74 Thus, the correct rule, as other courts have recognized, is that “[w]hen the government

views anything other than the specific materials that a private party saw during the course of a

private search, the government search exceeds the scope of the private search.” (Emphasis added.)

Wilson, 13 F.4th at 974. This rule was applied in United States v. Crist, 627 F. Supp. 2d 575, 587

(M.D. Pa. 2008) which, like Phillips, stemmed from a private citizen’s discovery of child

pornography (a few video files) on the defendant’s computer. Unlike in Phillips however, law

enforcement officials did not limit their examination of the computer to the files discovered as a

result of the private search. Instead, without a warrant, they conducted a full-scale forensic analysis

of the computer’s hard drive. Not surprisingly, this difference led to a different outcome than in

Phillips. The Crist court held that the defendant’s privacy interest was lost only with respect to the

few videos discovered as a result of the private search. As the Crist court explained, “[t]he

Government’s warrantless search of [the] computer exceeded the scope of the private search

because the Government was not substantially certain the computer contained only contraband.”

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(Emphasis added.) Id. at 587. Likewise, here defendant retained his expectation of privacy in the

items not revealed by the X-ray scan.

¶ 75 According to the majority, “[because] the screening revealed contraband—the gun which

defendant admitted he was not allowed to possess—that also eliminated any privacy interest he

had in the continued possession of the firearm.” (Emphasis added.) Supra ¶ 26. This is a proper

justification for seizure of the bag; it is not a justification for opening it without a warrant or

warrant exception. As noted, “a defendant can have a legitimate expectation of privacy with respect

to contraband placed in a closed, opaque container to conceal it.” Ramires, 152 S.W.3d at 400.

Just because police found contraband does not retroactively justify the means by which they

obtained it.

¶ 76 Finally, the majority holds that this case falls under the “foregone conclusion” line of cases.

Citing People v. Jones, 215 Ill. 2d 261, 279 (2005), the majority contends that because it was a

“foregone conclusion” that the diaper bag contained contraband—an unlawfully possessed

handgun—no warrant was required to search the bag. Jones held that a “one-hitter” box—an item

characteristically used to store cannabis—was subject to a warrantless search. As discussed by the

majority, the Jones court reasoned that, “[c]ourts have held that when a container is ‘not closed,’

or ‘transparent,’ or when its ‘distinctive configuration proclaims its contents,’ the container

supports no reasonable expectation of privacy and the contents thereof can be said to be in plain

view.” Id. Here the diaper bag fits in none of these categories, but the Jones court also more broadly

observed that “[w]here law enforcement officers already possess knowledge as to the contents of

the container, the search of the container does not unreasonably infringe upon the individual

interest in preserving the privacy of those contents.” (Emphasis added.) Id. “Those contents”

clearly refers to the contents already known to the law enforcement officers. That reasoning does

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not extend to a search like the one in this case, where law enforcement officers have knowledge of

only a portion of the contents.

¶ 77 Also worth noting is the State’s failure to present evidence that the police actually viewed

the X-ray or the image taken by the security guard. Testimony at the hearing was that the image

was not shown to the police, but that they merely heard from the security supervisor that he had

observed the X-ray image. No testimony was taken concerning anyone’s experience or training in

identifying objects depicted in the image as contraband. This is an important consideration because

determining whether the scope of a police search of a closed container exceeded a private search

requires that “the police are already substantially certain of what is inside the container based on

the statements of the private searchers, their replication of the private search, and their expertise.”

United States v. Runyan, 275 F.3d 449, 463 (5th Cir. 2001). While the hearsay statement of

Angelici may arguably qualify as a statement by the searcher even though he did not do the search

himself, the police action of opening the bag did not replicate the X-ray search, and as stated, no

testimony was elicited as to the officer’s expertise, experience or training.

¶ 78 Whereas the majority sees this case as a “textbook example” of a warrantless search of a

container that is permissible based on knowledge of its contents, a prominent fourth amendment

scholar, Professor Wayne R. LaFave, has suggested a strikingly similar scenario in which the

authority to search is questionable at best. Touching upon the question of whether a warrantless

search of a container is permissible after a defendant makes incriminating admissions about the

container’s contents, Professor LaFave suggested that such admissions are analogous to exposing

the contraband to plain view by storing it in a transparent container. 3 Wayne R. LaFave, Search

and Seizure § 5.5(f), at 377 (6th ed. 2020). While that suggestion is consistent with the majority’s

analysis, Professor LaFave added a significant qualification:

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“[t]his analogy is most compelling when the statement is as to the entire contents

of the container. If a person tells the police he has a stolen diamond ring in his suitcase, it

might be argued that this is not a surrender of his privacy expectation regarding the contents

of the case generally.” (Emphasis added.) Id. § 5.5(f) at 377 n.242.

Although Professor LaFave did not express any definitive opinion on the validity of such an

argument, I am reluctant to extend the reasoning of Jones to cases where the contents of a container

are only partly known.

¶ 79 In its characterization of the evidence at the hearing concerning what it deems the

“foregone conclusion” that there was a gun in the bag (supra ¶ 31), the majority relies heavily on

a single statement by Officer Rock on redirect examination: “Q. And as soon as you got there the

defendant was saying that he had a gun in his bag; correct? A. Correct.” On this single statement,

the majority concludes that “defendant had acknowledged that the gun was his.” Supra ¶ 27. The

majority then adds its own versions of the statement, saying “defendant acknowledged that there

was a gun in the bag” (supra ¶ 23), “defendant himself had acknowledged in [the officers’]

presence that there was a gun in the bag” (supra ¶ 31), and “defendant had said as much” (supra

¶ 32).

¶ 80 However, some of the testimony and the majority’s characterization of the evidence are

contradicted by the video evidence presented at the hearing. At the 1:25 mark of the video, as

Officer Rock approaches the front gate, Angelici can be heard asking defendant, “do you have

concealed carry?,” to which defendant responded, “no.” That is it. At no point in the video could

defendant be heard stating to Officer Rock that “he had a gun in his bag” or any words to that

effect, nor can defendant be heard making any affirmative statement or admission to either owning

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or possessing the firearm in question. In fact, defendant repeatedly denies knowing the gun was

there or that it was his.

¶ 81 Moreover, it is clear from the video that, at the beginning of the encounter, the officers are

unaware of who they should consider as possessor of the bag. At the 1:39 mark, Officer Butur is

heard asking defendant’s wife, “what’s going on, whose is it?,” to which she responds, “it was in

my trunk.” Angelici adds, to Butur at 2:03, “when it came through, he walked to me, because I

grabbed it, but I don’t know who brought it.” 8 Obviously, this is inconsistent with Officer Rock’s

testimony that “I was instructed by Officer Butur” that Angelici had told Butur that defendant was

the one pushing the stroller.

¶ 82 At the 2:09 mark, Angelici hands the bag to Officer Butur. At 3:30, defendant tells Officers

Butur and Szalkowski that his wife has a CCL, which she affirms, stating to an officer identified

only as “A.J.” at 5:20, “I don’t remember that—we didn’t remember that it was [inaudible], I just

grabbed it out the trunk and that was it.” Defendant then, at 5:40, says, “give my baby her s***

back, we gon’ go, we gon’ take that b*** outside, that’ll be all we do.” At 6:15, defendant becomes

upset that one of the officers is putting on rubber gloves. At 7:40, Officer A.J. seeks to calm

defendant by saying, “we’re here because you forgot to take the gun out of there.” Defendant

responds, “I ain’t forget,” to which Officer A.J. replies, “Well, somebody did.” Defendant then

says, at 8:28, “I ain’t did s*** wrong.” Officer A.J. then says, “sir, you can’t bring a gun—,” which

8 The majority characterizes Angelici’s testimony as “When the officers arrived, Angelici told them

that the bag was defendant’s ***.” Supra ¶ 6. But Angelini’s testimony at the hearing was, “And there was

another question I asked as to whose gun it was and I didn’t get an indication or answer on that, just that he

wanted to bring the gun back to the vehicle.”

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defendant interrupts, saying “I didn’t know it was there, I had no knowledge.” Defendant’s wife

then says, “It was my fault [inaudible], it has nothing to do with him.”

¶ 83 As the foregoing makes clear, the facts underpinning the majority’s holding are in dispute,

and we owe deference to the trial court’s determinations. Nonetheless, the majority finds that the

facts so clearly support its “foregone conclusion” argument that they deem the trial court’s

determination to be contrary to the manifest weight of the evidence. The majority’s holding is

unwarranted.

¶ 84 The police here had ample time to seek a search warrant, and there were no exigent

circumstances or any other exception to the warrant requirement. They should simply have sought

to have a neutral magistrate determine probable cause and authorize them to open the bag. Because

defendant did not consent to the physical search of the diaper bag by either private security or

Gurnee police, the police search exceeded the scope of the private search, and the Gurnee police

had no reason to believe that the entire contents of the bag were contraband or that the container

confirmed contraband inside, I would affirm the trial court’s order granting defendant’s motion to

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People v. Long, 2025 IL App (2d) 240237

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 23-CF-1186; the Hon. Patricia S. Fix, Judge, presiding.

Attorneys Eric F. Rinehart, State’s Attorney, of Waukegan (Patrick for Delfino, Edward R. Psenicka, and David S. Friedland, of State’s Appellant: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Attorneys Jason S. Dreifuss, of Waukegan, for appellee. for Appellee:

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