NOTICE 2020 IL App (5th) 160483-U NOTICE Decision filed 11/23/20. The This order was filed under text of this decision may be NO. 5-16-0483 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Wayne County. ) v. ) No. 14-CF-152 ) JESSE A. McDONALD, ) Honorable ) Michael J. Molt, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court. Justice Overstreet specially concurred. Justice Cates dissented.
ORDER
¶1 Held: Defendant’s conviction is reversed where the trial court erred in denying defendant’s motion to suppress evidence when the subject evidence was obtained through a warrantless search of defendant’s residence.
¶2 Defendant, Jesse A. McDonald, was convicted of one count of possession of more
than 500 grams but not more than 2000 grams of cannabis, in violation of section 4(f) of
the Cannabis Control Act (720 ILCS 550/4(f) (West 2014)), on November 1, 2016.
Defendant’s conviction stemmed from a warrantless search of his residence by law
enforcement officers. On direct appeal from his conviction, defendant argues that the trial
court erred in denying his motion to suppress evidence from the warrantless search. 1 Defendant also argues that the trial court erred in determining that defendant consented to
the search of his residence. For the following reasons, we reverse the judgment of the
trial court.
¶3 I. BACKGROUND
¶4 On September 29, 2014, the State filed a three-count indictment charging
defendant with: count I—unlawful production of between 50 to 200 cannabis sativa
plants in violation of section 8(d) of the Cannabis Control Act (720 ILCS 550/8(d) (West
2014)); count II—possession of more than 2000 grams but less than 5000 grams of
cannabis with the intent to deliver or manufacture in violation of section 5(f) of the
Cannabis Control Act (id. § 5(f)); and count III—possession of more than 2000 grams but
less than 5000 grams of cannabis in violation of section 4(f) of the Cannabis Control Act
(id. § 4(f)). An information adding count IV—unlawful production of cannabis sativa
plants in violation of section 8(b) of the Cannabis Control Act (id. § 8(b)), was filed on
June 29, 2016.
¶5 On May 20, 2015, defendant filed a motion to suppress evidence based on law
enforcement’s warrantless search of defendant’s residence. A hearing on defendant’s
motion to suppress evidence was conducted on October 8, 2015, wherein the trial court
heard the following evidence.
¶6 On September 18, 2014, a confidential informant notified law enforcement that
defendant had cannabis plants growing on or near his premises located in a rural area of
Wayne County, Illinois. Based on that information, the Wayne County Sheriff’s Office
requested that the Illinois State Police (ISP) conduct an aerial surveillance of defendant’s 2 residence and nearby real estate. On September 19, 2014, the aerial surveillance was
conducted, and the ISP verified that there appeared to be cannabis plants cultivating in an
area north of defendant’s residence.
¶7 On September 22, 2014, Detective Michael Vinson and Sheriff Mike Everett of
the Wayne County Sheriff’s Office, along with three agents from the Southern Illinois
Drug Task Force (officers), drove to the area identified by the ISP as containing the
cannabis plants. Three of the officers left the vehicle and proceeded across a field of
weeds and brush and then through a wooded area. On the outskirts of the wooded area,
the officers observed 60 to 80 suspected cannabis plants located approximately 100 yards
from defendant’s residence and a dirt path leading from the area of the cannabis plants to
defendant’s home. The officers returned to their vehicle and drove to the driveway at
defendant’s residence.
¶8 The driveway at defendant’s residence began at a public road and extended
approximately 60 to 70 yards perpendicular from the public road to the residence. There
was an approximate 4 feet high by 12 feet wide gate 1 at the entrance to the driveway. At
the suppression hearing, defendant testified that the gate was closed and that there was
fencing on both sides of the gate that consisted of barbwire and five-foot fencing panels.
Defendant acknowledged that there was a narrow gap in the fence on the left side of the
gate behind the mailbox. Defendant stated that he utilized the gap in the fence to get his
mail but claimed that the gap was blocked by two pieces of wood and some wire.
1 The dimensions of the gate were not provided in the record; however, the record contains several photographs of the gate. Based on the photographs, the gate appears to have been approximately 4 feet high by 12 feet wide. 3 Defendant asserted that the wood and wire would have needed to be moved aside before
an individual could have entered the property through the gap. Defendant further stated
that there was a chain on the gate with a padlock and that, at some point, one of the
officers removed the gate from its hinges in order to allow the officers’ vehicle to access
defendant’s driveway. According to defendant, he did not own a vehicle, so he opened
the gate only when he had visitors. Defendant also noted that there was a “No
Trespassing” sign attached to a tree approximately a third of the way up the driveway.
¶9 According to defendant, at approximately 8 a.m. on September 22, 2014, he
observed the officers walking up the driveway while defendant was on a telephone call
with his girlfriend. Defendant terminated the conversation, shaved, and then ran out the
door, meeting the officers in the driveway with his hands up, requesting that the officers
not shoot at his dogs since neither dog was aggressive.
¶ 10 Defendant testified that one of the officers stated that there were suspected
cannabis plants growing in an area north of defendant’s residence and that the officers
believed that the cannabis plants belonged to defendant. Defendant stated that he
informed the officer that defendant had an attorney and would wait on a search warrant.
The officer responded that a search warrant was coming and instructed defendant to
contain one of the dogs due to its excessive barking. According to defendant, the officer
then went over to an outbuilding and began to search it. Defendant could not identify
which officer defendant spoke with at this point, but defendant maintained that he
objected to any search of his property until a search warrant was produced.
4 ¶ 11 Defendant testified that after speaking with the officer, he went into his house to
put the dog into a kennel as instructed. Defendant asserted that when he came out of the
room where the kennel was located, the officers were searching his home. Defendant
further asserted that Detective Vinson read defendant his Miranda 2 rights and told
defendant to “sit down and shut up or we would put ya [sic] on the ground and handcuff
you.” Defendant maintained that he asked the officers to leave his property and that he
never gave consent for the officers to search his residence or real property.
¶ 12 The State presented a different version of the events leading to the search of
defendant’s residence. Detective Vinson testified that the driveway had a gate, but that
the gate was not locked and was not completely shut when the officers arrived. Detective
Vinson further stated that there was an opening in the fence on the left side of the gate.
According to Detective Vinson, he and the other officers were able to walk unobstructed
from the public road to the defendant’s home either through the opening in the fence or
because the gate was not completely closed. Detective Vinson vaguely recalled some
items around the gate that may have been an issue in opening the gate, but nothing that
impeded the officers from walking around or through the gate. Detective Vinson testified
that he did not see a tree near the driveway with a “No Trespassing” sign as the officers
proceeded up the driveway. Detective Vinson acknowledged that the officers did not
have defendant’s consent to proceed past the gate and enter defendant’s property.
2 Miranda v. Arizona, 384 U.S. 436 (1966) (holding that law enforcement must notify suspects of certain rights to ensure a suspect knows that he/she may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time).
5 ¶ 13 Detective Vinson stated that he observed defendant coming out of the residence
while the officers were proceeding up the driveway. Detective Vinson maintained that he
identified himself and then advised defendant of his Miranda rights while both Detective
Vinson and defendant were outside of defendant’s residence. Detective Vinson further
stated that he informed defendant of the suspected cannabis plants found near defendant’s
residence and that Detective Vinson needed to speak with defendant.
¶ 14 Detective Vinson asserted that while he was speaking with defendant, defendant
was giving instructions to someone on how to open the gate so that the officers’ vehicle
could access the driveway. Detective Vinson could not recall the identity of the officer
defendant was speaking with regarding the gate, nor was Detective Vinson aware of how
the gate was eventually opened.
¶ 15 A short time later, Detective Vinson stated that he advised defendant that there
was an odor of raw cannabis coming from inside defendant’s residence. At that point,
Detective Vinson maintained that defendant gave consent to enter his residence. The sole
evidence presented by the State regarding defendant’s voluntary consent to the search of
his residence was Detective Vinson’s testimony as follows:
“Q. Did you ask [defendant] about any contents of his home?
A. Not right away. A short time later I did ask, advised [defendant] that
there was an odor of raw cannabis coming from inside the residence.
Q. Did he give consent to enter the residence?
A. Yes, he did.”
6 Detective Vinson further testified that the Wayne County Sheriff’s Department has a
standard form wherein a suspect can place their signature on the form indicating their
consent to a search, but that the form was not used for the search of defendant’s
residence.
¶ 16 Detective Vinson approximated that the search of defendant’s residence was
completed in a couple of hours. Detective Vinson stated that defendant was inside the
residence during the entire search and that at no time during the search was defendant
placed under arrest. Detective Vinson also maintained that no weapons were drawn, that
no threats were made towards defendant, and that defendant never withdrew his consent
to the search of his residence. Detective Vinson acknowledged, however, that the officers
did not have a search warrant with respect to defendant’s residence or real property at any
time on September 22, 2014.
¶ 17 Next, the State presented the testimony of Sheriff Mike Everett of the Wayne
County Sheriff’s Office. Sheriff Everett testified that he drove the officers to a location
north of defendant’s residence to conduct a search for the suspected cannabis plants.
Sheriff Everett remained in the vehicle while the other officers searched the area
identified by the ISP’s aerial surveillance. After the officers returned to the vehicle and
confirmed the presence of suspected cannabis plants, Sheriff Everett drove the officers to
the driveway at defendant’s residence. Sheriff Everett then parked on a small farm entry
road across from defendant’s driveway and waited in the vehicle while the officers went
to speak with defendant.
7 ¶ 18 According to Sheriff Everett, he observed the officers walk toward the defendant’s
residence and observed the defendant exit his residence and speak with the officers in the
driveway. Sheriff Everett stated that, at some point, an individual came and opened the
gate. Sheriff Everett, however, could not recall the identity of the individual who opened
the gate. Sheriff Everett could not recall whether the gate was taken off its hinges but
stated that he personally did not take the gate off its hinges. Sheriff Everett could also not
recall whether defendant gave consent for Sheriff Everett and/or his vehicle to enter
defendant’s property.
¶ 19 Sheriff Everett testified that once access to the driveway was available for his
vehicle, he drove up to defendant’s residence and remained outside of defendant’s
residence during the search. Sheriff Everett maintained that at no time during the search
did he hear defendant request that the officers discontinue the search. Sheriff Everett also
stated that he never heard defendant request that the officers leave defendant’s home or
hear defendant state anything concerning a search warrant.
¶ 20 The following contraband was seized during the search of defendant’s residence
and the surrounding area:
“Item 1—Plastic Tupperware type container containing approximately
118 grams of suspected cannabis found on a table in the south bedroom of
the [defendant’s] residence.
Item 2—Plastic Tupperware type container containing approximately
35.3 grams of suspected cannabis found on a table in the south bedroom of
the [defendant’s] residence. 8 Item 3—Plastic Tupperware type container containing approximately
25 grams of suspected cannabis found on a table in the south bedroom of
Item 4—Plastic Tupperware type container containing approximately
96 grams of suspected cannabis found on a table in the south bedroom of
Item 5—Plastic Tupperware type container containing approximately
103 grams of suspected cannabis found on a table in the south bedroom of
Item 6—Approximately 74 grams of suspected cannabis found in a
cardboard box that was in a plastic 41 quart container located in the south
bedroom of the [defendant’s] residence.
Item 7—Plastic Tupperware type container containing approximately
19 grams of suspected cannabis found on the microwave in the kitchen of
Item 8—Approximately 1104 grams of suspected cannabis found
hanging from strings in the south bedroom of the [defendant’s] residence.
Item 9—One sandwich type baggy containing approximately 7.5 grams
of suspected cannabis found on the microwave in the kitchen at the
[defendant’s] residence.
Item 10—Papers with tips/instruction on how to manufacture cannabis
found taped to the wall in the south bedroom of the [defendant’s] residence. 9 Item 11—One blue and chrome smoking pipe; One Swisher Sweet box
containing five misc. smoking pipes and a pill bottle containing numerous
partial cannabis cigarettes found in the middle bedroom of the [defendant’s]
Item 12—One 41 quart plastic container full of suspected cannabis
stems and leaves found in the south bedroom of the [defendant’s] residence.
Contents were not weighed.
Item 13—One 41 quart plastic container approximately half full of
suspected cannabis stems and leaves found in the south bedroom of the
[defendant’s residence. Contents were not weighed.
Item 14—Approximately 5 stems from suspected cannabis plants found
in the trash can in the kitchen of the [defendant’s] residence.
Item 15—Digital scales, trimming scissors, one grinder and suspected
cannabis residue found on the microwave in the kitchen of [defendant’s]
Item 16—Rainbow colored glass smoking pipe with suspected cannabis
residue found in the north bedroom of the [defendant’s] residence.
Item 17—Approximately 80 suspected cannabis sativa plants.”
¶ 21 The trial court issued a written order denying defendant’s motion to suppress
evidence on November 3, 2015. The trial court’s written order contained, inter alia, the
following findings:
10 “5. The Defendant testified that he often left the path to his mail box
unobstructed; therefore, the Court finds that Detective VINSON used the
entrance to the Defendant’s property which was open and available to
***
7. Detective VINSON testified that he smelled the aroma of raw
cannabis when Defendant exited his mobile home, and that the Defendant
gave permission for Detective VINSON to enter Defendant’s mobile home,
and search the mobile home.”
¶ 22 The matter proceeded to a stipulated bench trial on count III, possession of more
than 500 grams but not more than 2000 grams of cannabis, on November 1, 2016. The
trial court found defendant guilty of count III and the State dismissed the remainder of
the charges. The trial court sentenced defendant to two years’ conditional discharge.
Defendant now appeals his conviction stemming from the officers’ warrantless search of
his residence.
¶ 23 II. ANALYSIS
¶ 24 Defendant argues that the trial court erred in denying the motion to suppress
evidence from the warrantless search of his property. Defendant contends that the officers
violated defendant’s fourth amendment rights when the officers entered defendant’s
property which was gated, posted, and fenced and not impliedly open to the public. As
11 such, it is defendant’s position that his property was “curtilage” 3 of his residence for
fourth amendment purposes. Defendant further argues that the trial court erred in finding
that defendant consented to search of his residence because such a finding was against the
manifest weight of the evidence.
¶ 25 We apply a two-part standard of review when considering the propriety of a trial
court’s ruling on a motion to suppress evidence. People v. Cosby, 231 Ill. 2d 262, 271
(2008). We review the trial court’s findings of fact for clear error only, and we give the
appropriate weight to any inferences drawn from those facts by the trial judge as the
finder of fact. Id. This means that we afford great deference to the trial judge’s factual
findings and may reverse those factual findings only if they are against the manifest
weight of the evidence. Id. However, we are nevertheless free to undertake our own
assessment of the facts as they relate to the issues raised on appeal, and we therefore may
draw our own conclusions concerning what relief should be granted. Id. As a result, we
conduct a de novo review of the trial court’s ultimate legal ruling on the motion to
suppress evidence. Id.
¶ 26 In United States v. Dunn, 480 U.S. 294, 300 (1987), the United States Supreme
Court recognized that the fourth amendment protects the curtilage of a house. Id. When
faced with a curtilage issue, a court must first determine whether the claimed area meets
the four-factor inquiry 4 to be curtilage and whether law enforcement violated a suspect’s
3 The area immediately surrounding and associated with a home is referred to as the common-law concept of “curtilage” and has been held as part of the home for fourth amendment purposes. Florida v. Jardines, 569 U.S. 1, 6 (2013). 4 The Dunn Court set forth a four-factor inquiry for analyzing curtilage questions: (1) the proximity of the home to the area claimed to be curtilage, (2) whether the area is included within an enclosure surrounding the home, 12 fourth amendment rights by illegally entering the curtilage. Then, if a suspect later
voluntarily consented to the search, the court must determine whether such consent cured
the officers’ illegal entry because “voluntary consent, even if established, will not by
itself purge ‘tainted’ conduct and attenuate a subsequent search or seizure from prior
illegal conduct.” People v. Koniecki, 135 Ill. App. 3d 394, 402 (1985). Although
defendant first argues the issue of whether the officers violated defendant’s fourth
amendment rights when the officers entered defendant’s property, it is prudent for this
court to first address the issue whether defendant voluntarily consented to the search
since it bears upon the analysis of the curtilage issue.
¶ 27 Defendant argues that the trial court erred in finding that defendant consented to
search of his residence because such a finding was against the manifest weight of the
evidence. Defendant states that the Wayne County Sherriff’s Office had a standard
consent to search form which was not used when the officers searched defendant’s
residence and, therefore, there was no written documentation of the consent. There was
also no audio or video recording demonstrating defendant’s consent. As such, defendant
argues that the trial court had to rely on a credibility determination between defendant
and Detective Vinson and that such a determination should have weighed in favor of
defendant since Detective Vinson gave inconsistent testimony regarding the events which
led to the search of defendant’s residence.
(3) what the claimed area is used for, and (4) any actions taken by the resident to protect the area from observation by the public. Dunn, 480 U.S. at 301. 13 ¶ 28 The trial court found that defendant gave permission for Detective Vinson to enter
and search defendant’s mobile home based on Detective Vinson’s testimony at the
suppression hearing. Detective Vinson, however, never testified that defendant gave
consent to the search of defendant’s home. Detective Vinson’s testimony was as follows:
A. Not right away. A short time later I did ask, advised [defendant] that
there was an odor of raw cannabis coming from inside the residence.
The above reflects that Detective Vinson testified that defendant gave the officers consent
to enter defendant’s home. There was no evidence submitted to the trial court that
demonstrated defendant consented to the search of his residence.
¶ 29 An invitation to enter one’s residence does not necessarily imply an invitation or
consent to enter all areas of that residence. It is important to consider any express or
implied limitations or qualifications of the consent regarding matters such as duration,
area, and intensity in order to determine the scope of the consent. People v. Dawn, 2013
IL App (2d) 120025, ¶ 33. “[P]ermission to enter one area, for an expressed purpose
embodied in the invitation, does not imply permission to enter elsewhere, even if the
further intrusion is motivated in some way by the concern that led to the initial entry.” Id.
¶ 45.
¶ 30 The State emphasizes that the evidence demonstrated that defendant never
withdrew his consent or objected in any manner throughout the search; however, failure 14 to object to the officer’s actions cannot be construed as implied consent. Id. To do so
would in effect presume consent and thus shift the burden to the defendant to prove that
the officer acted without consent.
¶ 31 In this matter, we do not know if Detective Vinson asked the defendant if they
could speak inside, go in the residence for a glass of water, or whether Detective Vinson
specifically asked defendant if the officers could search defendant’s home for contraband.
As such, there was no evidence that defendant consented to the search of his home.
Although we afford great deference to the trial judge’s factual findings, we find that the
trial court’s finding that defendant gave Detective Vinson consent to search defendant’s
residence was against the manifest weight of the evidence. Therefore, the trial court erred
in denying defendant’s motion to suppress evidence from the officers’ warrantless search
of defendant’s residence.
¶ 32 Since we have determined that the trial court’s finding that defendant voluntarily
consented to the search of his residence was against the manifest weight of the evidence,
there is no need for this court to address the remaining issue. We reverse the circuit
court’s denial of defendant’s motion to suppress evidence and reverse defendant’s
conviction because the State could not have proven defendant guilty without the evidence
obtained through the illegal search.
¶ 33 III. CONCLUSION
¶ 34 For the foregoing reasons, we reverse the judgment of the trial court.
¶ 35 Reversed. 15 ¶ 36 JUSTICE OVERSTREET, specially concurring:
¶ 37 I concur with the majority’s decision to reverse the circuit court’s order that
denied the defendant’s motion to suppress evidence and to reverse the defendant’s
conviction but do so for different reasons. The first issue the defendant raised on appeal is
whether the circuit court erred in denying his motion to suppress evidence because his
fourth amendment right to be free from unlawful searches and seizures was violated
when officers entered his property unlawfully. I base my special concurrence on the
resolution of this issue.
¶ 38 “Both the United States and Illinois Constitutions protect individuals from
unreasonable searches and seizures.” People v. Kratovil, 351 Ill. App. 3d 1023, 1030
(2004). “Reasonableness in this context generally requires a warrant supported by
probable cause.” Id. “Absent probable cause or a warrant based thereon, a search is
violative of the fourth amendment.” Id.
¶ 39 Here, the record reflects that the officers discovered suspected cannabis plants in a
wooded area approximately 100 yards from the defendant’s residence. Detective Vinson
testified that the officers subsequently approached the defendant’s residence for the
purpose of speaking to the defendant about what they had discovered. Hence, the officers
approached the residence to conduct a “knock and talk.” See People v. Brandt, 2019 IL
App (4th) 180219, ¶ 34. “[A] police officer may lawfully ‘approach a home and knock’
without a warrant.” Id. (quoting Florida v. Jardines, 569 U.S. 1, 8 (2013)). Such an
intrusion is “lawful given the implicit license any private citizen has to do the same.” Id.
However, a police officer without a warrant may do “ ‘no more than any private citizen 16 might do.’ ” Jardines, 569 U.S. at 8 (quoting Kentucky v. King, 563 U.S. 452, 469
(2011)). A knock and talk is conducted “ ‘not to create a show of force, nor to make
demands on occupants, nor to raid a residence.’ ” Brandt, 2019 IL App (4th) 180219,
¶ 34 (quoting 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)). Rather, the
purpose of a knock and talk “ ‘is to make investigatory inquiry or, if officers reasonably
suspect criminal activity, to gain the occupants’ consent to search.’ ” Id. (quoting Gomez-
Moreno, 479 F.3d at 355).
¶ 40 Police may lawfully approach a residence for a “knock and talk” so long as they
enter an area impliedly open to the public. People v. Woodrome, 2013 IL App (4th)
130142, ¶ 23; see also People v. Janis, 139 Ill. 2d 300, 310-11 (1990) (warrantless entry
is a search which violates the fourth amendment where there is no evidence that the area
entered is generally open to the public). When determining whether an area is impliedly
open to the public, evidence that a defendant made visible efforts to exclude the public—
such as placing a fence or posting a “No Trespassing” sign—is considered. Janis, 139 Ill.
2d at 314. Moreover, whether a defendant has a reasonable expectation of privacy in an
area searched is determined by looking at the totality of the circumstances. People v.
Pitman, 211 Ill. 2d 502, 530 (2004).
¶ 41 Here, notwithstanding any conflicting testimony on this issue, a conclusion may
be drawn by reviewing the photographs in the record. The photographs establish that the
area entered was not impliedly open to the public, making the officers’ entry onto the
property unlawful. See Woodrome, 2013 IL App (4th) 130142, ¶ 23. There is a wire fence 17 surrounding the property, along with a large metal gate spanning across and exceeding
the width of the driveway, located at the end of the driveway where it adjoins the road.
There is a small gap between the wire fence and the gate that the defendant walks through
to retrieve his mail. The circuit court found that Detective Vinson used this gap as an
entrance to the defendant’s property, “which was open and available to Defendant’s
property.”
¶ 42 Notably, the circuit court applied an incorrect standard in finding the gap to be an
entrance “which was open and available” to the property. The correct standard is whether
the area was “impliedly open to the public.” See id. I do not interpret the small gap to be
the equivalent of an invitation for the public to approach the residence, given the totality
of the circumstances (see Pitman, 211 Ill. 2d at 530), nor do I conclude that the presence
of the gap negates the visible efforts the defendant expended to exclude the public from
his property (see Janis, 139 Ill. 2d at 314).
¶ 43 Besides the presence of the fence and gate, photographs in the record depict a “NO
TRESPASSING” sign posted on a tree that is located approximately one third of the way
down the driveway, roughly 20 yards from the gate and 40 yards from the residence.
Although Detective Vinson testified that he did not see the “NO TRESPASSING” sign,
he did not dispute its existence. The defendant testified that the photograph presented an
accurate depiction of the tree with the “NO TRESPASSING” sign as it appeared on the
date the officers entered the property. This testimony is unrebutted. There is ample
evidence that the defendant made visible efforts to exclude the public from his property.
Id. The presence of the gap does not change said efforts nor does it transmute the area 18 into one that is impliedly open to the public. I find the circuit court’s conclusion that the
gap between the fence and the gate was an entrance which was “open and available” to
the property was against the manifest weight of the evidence. Accordingly, I conclude the
officers’ entry onto the property was unlawful.
¶ 44 “Under the exclusionary rule, evidence obtained during or as a direct result of an
unlawful entry is generally inadmissible.” People v. Vought, 174 Ill. App. 3d 563, 571
(1988). However, “[e]vidence will not be considered ‘fruit of the poisonous tree’ simply
because it would not have been discovered but for the illegal actions of the police.” Id.
“Instead, the determinative question is whether the evidence has been discovered by
exploitation of that illegality or by means sufficiently distinguishable to be purged of the
primary taint.” Id.
¶ 45 “Consent is a waiver of the constitutional privilege against unreasonable searches
and seizures.” Kratovil, 351 Ill. App. 3d at 1030. “A search of a home conducted
pursuant to a defendant’s voluntary consent is one of the specifically established
exceptions to the warrant requirement.” Id. Here, the majority found that the defendant
did not consent to a search of his residence and reversed the circuit court’s order and the
defendant’s conviction on that basis. However, even assuming, arguendo, that the
defendant did voluntarily consent to the search, that consent does not, in and of itself,
purge conduct that is “tainted” or attenuate a search that occurs after any prior illegal
conduct. People v. Koniecki, 135 Ill. App. 3d 394, 402 (1985).
¶ 46 Factors to consider “in determining whether defendant’s consent to the search ***
sufficiently attenuated the taint of the illegal entry” include: “(1) whether Miranda 19 warnings were given, (2) the amount of time that elapsed between the [illegal entry] and
the [discovery of the evidence], (3) the presence of any intervening circumstances, and
(4) the purpose and flagrancy of the police misconduct.” Vought, 174 Ill. App. 3d at 572
(citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
¶ 47 Here, the defendant and Detective Vinson both testified that Miranda warnings
were given. However, the presence of Miranda warnings does not in and of itself purge
the taint of the unlawful entry. See People v. Foskey, 136 Ill. 2d 66, 86 (1990). Of the
above four factors, “the presence of intervening circumstances and the flagrancy of the
police conduct are the most important.” People v. Hernandez, 2017 IL App (1st) 150575,
¶ 95.
¶ 48 Police conduct is flagrant where, inter alia, the investigation was carried out in
such a way as to cause surprise, fear, and confusion. People v. Jackson, 374 Ill. App. 3d
93, 107 (2007). Given that the area was not impliedly open to the public and the efforts
the defendant expended to exclude the public, I find that the police entering the property
and approaching the defendant’s residence inherently evoked surprise, fear, and
confusion in the defendant. The defendant’s testimony supports this finding. He testified
that his dogs began barking when officers approached his residence at 8 a.m. on the date
in question. He was on the phone with his girlfriend at the time, so he hastily ended the
call and shaved because he “was looking kind of rough.” The defendant testified that he
“ran out the door” and “met them in the driveway with my hands up.” He testified further
that he told the officers, “Don’t shoot my dog.” The defendant explained that his dog is
“mean-looking” and he observed that “one of the officers had their hand on their gun, and 20 so I *** hurried up, because I didn’t want them to shoot my dog.” This testimony
establishes that the officers’ conduct was flagrant because it caused surprise, fear, and
confusion in the defendant. See id.
¶ 49 Regarding the factor of intervening circumstances, there were no circumstances
that broke the causal connection between the unlawful entry and the discovery of the
evidence. An intervening circumstance is sufficient to break the causal connection if it
results in the incriminating evidence being obtained independent of rather than because of
the unlawful entry. See Foskey, 136 Ill. 2d at 87. No such intervening circumstances were
present here, as the officers obtained the incriminating evidence as a result of—not
independent of—the unlawful entry onto the defendant’s property. See id.
¶ 50 Regarding the time factor, the record is silent regarding the precise amount of time
that elapsed between the unlawful entry and the discovery of the incriminating evidence
inside the defendant’s residence. Testimony at the hearing established that the entire
search was completed in approximately two hours. The defendant testified that when he
met the officers outside, his smaller dog was also outside at that point and barking
incessantly. He testified that one of the officers instructed him to put the dog in the house.
The defendant indicated that he complied and that when he came out of the room where
he put the dog, the officers were in the house and began to search. It thus appears that the
search commenced shortly after the unlawful entry was made. Nothing in the record
reflects that the discovery of the evidence was unduly prolonged. Accordingly, I find that
the temporal proximity factor favors the defendant.
21 ¶ 51 Upon considering the relevant factors, even if the defendant voluntarily consented
to the search of his home, that consent did not sufficiently attenuate the taint of the
unlawful entry onto the defendant’s property (see Vought, 174 Ill. App. 3d at 572) as
three of the four factors weigh against attenuation. For the foregoing reasons, I specially
concur with the majority’s decision to reverse the order of the circuit court that denied the
defendant’s motion to suppress evidence and to reverse the defendant’s conviction.
¶ 52 JUSTICE CATES, dissenting:
¶ 53 On appeal, the defendant raises two challenges to the trial court’s denial of his
motion to suppress evidence. First, the defendant contends that law enforcement entered
the defendant’s property without authority, and that such unlawful entry tainted any
subsequent consent to search the defendant’s residence. Second, the defendant contends
that the trial court erred in concluding that the defendant consented to a search of his
¶ 54 My colleagues, albeit for different reasons, have concluded that the trial court
erred in denying the defendant’s motion to suppress. In the majority order, Justice Boie
concluded that the trial court’s finding that the defendant consented to the search was
against the manifest weight of the evidence, and therefore found it unnecessary to
consider whether law enforcement lawfully entered the defendant’s property. In a special
concurrence, Justice Overstreet concluded that law enforcement illegally entered upon
the defendant’s property, and “caused surprise, fear, and confusion in the defendant”
(supra ¶ 48), and that even if defendant subsequently consented to a search of his
residence, such consent did not attenuate the taint of the illegal entry. After reviewing the 22 entire record, the only reasonable conclusion is that the trial court’s findings that, (1) law
enforcement entered the property lawfully, and, (2) that the defendant consented to the
search, are supported by the evidence and are not against the manifest weight of the
evidence. Therefore, I would affirm the trial court’s decision to deny the defendant’s
motion to suppress. Accordingly, I respectfully dissent.
¶ 55 The facts of this case are simple. Law enforcement knew, at the time they decided
to approach the defendant’s property, that a field suspected to contain cannabis plants
was approximately 100 yards from the defendant’s residence. There is no evidence in the
record to suggest that at the time the officers approached the defendant’s property, they
had any information regarding the ownership of the land on which the cannabis plants
were growing. Law enforcement had only received a “tip” from a confidential informant
that someone named “McDonald” had cannabis plants growing on or near his property.
The State’s evidence showed that the officers went to the defendant’s property to conduct
what is commonly referred to as a “knock and talk.” “ ‘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 [an] investigatory inquiry or, if officers
reasonably suspect criminal activity, to gain the occupants’ consent to search.’ ” People
v. Brandt, 2019 IL App (4th) 180219, ¶ 34 (quoting 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)). In Illinois, a “knock and talk” is permissible so long as the area where it is
conducted is impliedly open to the public. People v. Redman, 386 Ill. App. 3d 409, 418
(2008). 23 ¶ 56 In the special concurrence, my colleague indicates that “notwithstanding any
conflicting testimony on this issue, a conclusion may be drawn from reviewing the
photographs in the record.” Supra ¶ 41. Justice Overstreet then proceeds to
independently review the photographs and make findings regarding what they depict.
Justice Overstreet reaches the conclusion that the photographs “establish that the area
entered was not impliedly open to the public, making the officers’ entry onto the property
unlawful.” Supra ¶ 41. Thereafter, my colleague finds that the actions of the officers
“inherently evoked surprise, fear, and confusion,” calling their conduct “flagrant” and
illegal. Supra ¶ 48. In so finding, Justice Overstreet had not afforded proper deference to
the trial court’s findings as required under the applicable standard of review. As noted
hereafter, we, as a court of review, are bound by certain standards of review, and are not
to independently review the evidence as if we were sitting as the trial judge.
¶ 57 A circuit court’s ruling on a motion to suppress presents mixed questions of fact
and law and is reviewed under a two-part standard of review. People v. Luedemann, 222
Ill. 2d 530, 542 (2006); People v. Pitman, 211 Ill. 2d 502, 512 (2004). When reviewing
the circuit court’s ruling on a motion to suppress, we give great deference to the trial
court’s findings of fact, and we accept those findings unless they are against the manifest
weight of the evidence. Luedemann, 222 Ill. 2d at 542; Pitman, 211 Ill. 2d at 512. A
finding is against the manifest weight of the evidence only if the opposite conclusion is
clearly evident, or the finding itself is unreasonable, arbitrary, or not based on the
evidence presented. People v. Deleon, 227 Ill. 2d 322, 332 (2008). This deferential
standard of review is grounded in the reality that the circuit court is in a superior position 24 to observe the demeanor of the witnesses, to determine and weigh the credibility of the
witnesses, and to resolve conflicts in the testimony. Pitman, 211 Ill. 2d at 512. However,
a reviewing court may undertake its own assessment of the facts in relation to the issues
presented and may draw its own conclusions when deciding what relief should be
granted. Luedemann, 222 Ill. 2d at 542. Accordingly, we review de novo whether the
evidence should be suppressed. Pitman, 211 Ill. 2d at 512.
¶ 58 Here, the trial court had the opportunity to view the photographs as the court heard
the testimony of the witnesses. After considering this evidence, the court determined that
when the officers walked through the opening near the gate, they were engaged in a
lawful activity. During the suppression hearing, Detective Vinson testified that he was
able to walk onto the defendant’s property without any obstructions. 5 Another of the
State’s witnesses, Sheriff Everett, testified: “[i]t seemed there was a walking space to go
through, around.” I do not share my colleague’s conclusion that the photographs establish
that the area was not impliedly open to the public. I, too, have reviewed the photographs,
and, after doing so, conclude that the trial court acted within its sound discretion in
concluding that the opening between the gate and fence was intended as a public entry.
¶ 59 Additionally, the “NO TRESPASS” sign that was referenced by the special
concurrence, is not clearly visible or even decipherable in the photographs admitted into
evidence. Based on the photographs, the purported “NO TRESPASS” sign is affixed to a
large tree, at an unknown distance from the gate. The two photographs demonstrate that
5 The circuit court erroneously found that “[t]he [d]efendant testified that he often left the path to his mailbox unobstructed.” The defendant never testified as such. Detective Vinson’s testimony, however, supports a finding that the path through the defendant’s fencing was unobstructed. 25 the sign blends into the dark bark of the tree and is easily obscured in the shadows
created by the tree’s branches. Here, it is inconceivable how my colleague made findings
as he did regarding this sign, based upon the photos in the record. Again, it was up to the
trial judge, who was present at the hearing, to determine whether a person entering the
driveway, and walking toward the residence, would notice that sign. Detective Vinson
testified that he did not notice it. After considering the testimony of the witnesses, and the
photographs, I believe that the trial court could reasonably find that Detective Vinson
used an entrance to the defendant’s property that was impliedly open and available to the
public, and that this finding was not against the manifest weight of the evidence.
¶ 60 In addition to the foregoing, and contrary to the conclusion reached by Justice
Overstreet, there is no evidence in the record from which to find, or even infer, that the
officers were engaged in “flagrant” conduct that caused “surprise, fear, and confusion in
the defendant.” Based upon the defendant’s own testimony, it is reasonable to conclude
that the defendant anticipated meeting law enforcement officers in the driveway to find
out why the officers had come to the defendant’s residence. The defendant testified that
he was on a phone call when the officers entered the property, and that he took the time
to shave, before going out to meet them. 6 When the defendant exited his residence, he
met the officers in his driveway, and he had his hands up. Detective Vinson testified that
when he met the defendant, he advised the defendant of the purpose of the visit and gave
defendant Miranda warnings. A review of the record indicates that defendant’s dogs were
6 The defendant’s driveway appeared, from the photographs, to be more like a long, rock road. Perhaps this is the reason defendant had the time to conclude his call, shave, and then meet the officers in the driveway. 26 barking, perhaps disturbed by the presence of unfamiliar persons, but the defendant did
not manifest any similar surprise, fear, or confusion. The fact that the defendant took the
time to end his call, and shave, knowing he looked a bit “rough,” indicates a conscious
effort to look good for the officers, and negates any inference of surprise or confusion.
¶ 61 Defendant testified that one of his dogs looks “mean,” and the defendant observed
one of the officers had his hand on his gun, so the defendant “hurried up” because he did
not want the officers to “shoot his dog.” 7 The defendant was asked to secure his dog, and
that occurred without incident. Thus, the trial court could infer from the evidence that the
officers acted reasonably, and with restraint, and likewise, that the defendant acted
reasonably, and mindfully, in this situation. I do not agree that this testimony
demonstrates that flagrant conduct by law enforcement caused surprise, fear, and
confusion in the defendant. In fact, I reach the opposite conclusion. The law enforcement
officers acted reasonably in conducting their entry onto the defendant’s property to
conduct a “knock and talk.”
¶ 62 In sum, there was ample evidence offered at the suppression hearing to establish
that the officers lawfully entered the defendant’s driveway for the purpose of engaging in
a “knock and talk,” to inquire about suspected cannabis plants growing in a field
approximately 100 yards from the defendant’s property. The trial court’s finding that the
officers entered an area impliedly open to the public for a lawful purpose is not against
the manifest weight of the evidence.
7 There was no testimony in the record indicating that any of the officers intended to shoot any of the defendant’s dogs. 27 ¶ 63 The next question, then, is whether the defendant voluntarily consented to a search
of his residence. In the majority order, Justice Boie concluded that the trial court’s
finding that the defendant consented to a search of his residence was against the manifest
weight of the evidence. Whether consent has been given is a question of fact to be
determined initially by the circuit court. Pitman, 211 Ill. 2d at 527. Because the reviewing
court is not able to observe the witnesses as they testify, it is not within the province of
the reviewing court to assess the credibility of witnesses. Pitman, 211 Ill. 2d at 527.
When the evidence on the issue of consent is conflicting, we will uphold the circuit
court’s finding unless it is clearly erroneous. Pitman, 211 Ill. 2d at 527.
¶ 64 Here, the trial court recognized that the testimony regarding the issue of consent
was conflicting. The defendant testified that he did not give the officers permission to
search his residence. Detective Vinson testified that upon meeting the defendant in the
driveway, he smelled the odor of raw cannabis coming from inside the defendant’s
residence and informed the defendant of this fact. Once an officer is legitimately on a
property to conduct a “knock and talk,” the officer may properly observe any evidence
lying about in the open, including any odors. Redman, 386 Ill. App. 3d at 419. Detective
Vinson was lawfully on the property at the time he smelled the raw odor of cannabis.
After detecting the odor of raw cannabis, Detective Vinson indicated that he obtained the
defendant’s consent to search his mobile home.
¶ 65 In the majority order, my colleague refers to the following colloquy during
Detective Vinson’s direct examination as “[t]he sole evidence presented by the State
regarding defendant’s voluntary consent to the search of his residence” (supra ¶ 15): 28 “Q. Did you ask [defendant] about any contents of his home?
A. Not right away. A short time later I did ask, advised [defendant] that there was an odor of raw cannabis coming from inside the residence.
Justice Boie then opines that Detective Vinson only testified that the defendant gave
consent to enter, not search, the residence—a distinction not argued by the defendant, nor
supported by the record below.
¶ 66 Contrary to Justice Boie’s assertion that there was scant evidence in the record to
support the trial judge’s conclusion regarding the consent to search, there was, indeed,
additional evidence in the record, not mentioned by my colleagues. Beyond the short
colloquy referenced above, other portions of the record clearly support the trial court’s
finding that Detective Vinson obtained a voluntary consent to search the defendant’s
residence. For example, during the State’s direct examination, Detective Vinson also
testified as follows regarding the search of the defendant’s residence:
“Q. *** How long did it take you to accumulate these items?
A. I don’t know. I can go back and pull log sheets to see how long we were there. A rough estimate, probably at [defendant’s] residence for maybe a couple of hours.
Q. At any time did [defendant] tell you to leave?
A. No.
Q. At any time did he withdraw his consent?
29 Q. You did not place [defendant] under arrest at any time during the search; is that right?
A. No. He was at the residence unsecured, staying at the residence with us.”
¶ 67 During the defendant’s cross-examination of Detective Vinson, the following
colloquy occurred:
“Q. Okay. So at the moment that that discussion is occurring between [defendant] and Sheriff Everett about the opening of the gate, had [defendant] given consent to search the residence?
A. I don’t know exactly—what exactly the order of the conversation, but it would have been in the same general vicinity. I don’t know exactly which one would have came first.”
¶ 68 In this case, the trial court observed that the defendant’s testimony regarding
consent was directly opposite of Detective Vinson’s testimony. After observing the
testimony of the witnesses, the court resolved the conflict in favor of Detective Vinson
and specifically found that the defendant gave his permission for the search of
defendant’s premises. Aside from the defendant’s testimony, which the court found to be
incredible, there is nothing in the record to support even an inference that the defendant
objected to the search of his residence. For example, there is no evidence that defendant
made repeated calls to his attorney or used his phone to contact anyone regarding the
search that was occurring in his mobile home. There is nothing to suggest that the
defendant’s demeanor was anything but calm. Viewing the State’s evidence as a whole,
and not in isolation, the trial court could reasonably find that the defendant consented to a
search of his residence. After reviewing the evidence presented during the suppression
hearing, I cannot conclude that the trial court’s finding was clearly unreasonable. 30 ¶ 69 Once the officers lawfully entered the defendant’s residence, with the defendant’s
consent, any evidence of contraband in plain view was subject to seizure. Redman, 386
Ill. App. 3d at 419; People v. Garcia, 296 Ill. App. 3d 769, 776 (1998). Under the plain
view doctrine, law enforcement may seize items without a warrant so long as the officer
is lawfully in a position from which the object seized is in plain view, the object's
incriminating character is immediately apparent, and the officer has a lawful right of
access to the object. People v. Sinegal, 409 Ill. App. 3d 1130, 1134 (2011). The same
analysis has been applied to smell, as the “plain smell” doctrine is simply a logical
extension of the plain view doctrine. United States v. Angelos, 433 F.3d 738, 747 (10th
Cir. 2006). As Detective Vinson testified, the officers spent about “a couple of hours”
searching the defendant’s residence. During the search, the officers seized multiple
containers containing suspected cannabis, found a large quantity of cannabis hanging
from strings in a bedroom, and confiscated various items of drug paraphernalia.
¶ 70 Based on the evidence presented by the State and the defendant’s own actions, law
enforcement conducted a valid “knock and talk” in an area seemingly open to the public.
Law enforcement then obtained a voluntary consent to search the residence and legally
seized the raw cannabis and paraphernalia contained in the defendant’s mobile home. In
my view, the trial court did not err in finding that law enforcement entered the
defendant’s property lawfully and that the defendant consented to the search of his
residence. The court’s factual findings were not against the manifest weight of the
evidence and, therefore, were entitled to deference. For the foregoing reasons, I would
31 affirm the trial court’s order denying the defendant’s motion to suppress evidence.
Accordingly, I respectfully dissent.