People v. Absher

• Decision Date: 19 May 2011
• Docket Number: No. 108441.,108441.
• Parties: The PEOPLE of the State of Illinois, Appellant,v.Samuel ABSHER, Appellee.
• Court: Illinois Supreme Court

242 Ill.2d 77

950 N.E.2d 659

351 Ill.Dec. 163

The PEOPLE of the State of Illinois, Appellant,

v.Samuel ABSHER, Appellee.

No. 108441.

Supreme Court of Illinois.

May 19, 2011.

Lisa Madigan, Attorney General, of Springfield, and Robert Haida, State's Attorney, of Belleville (Michael A. Scodro, Solicitor General, and Michael M. Glick and Erin M. Levin, Assistant Attorneys General, of Chicago, and Patrick Delfino, Stephen E. Norris and Rebecca E. McCormick, of the Office of the State's Attorneys Appellate Prosecutor, of Mt. Vernon, of counsel, for the People.Michael J. Pelletier, State Appellate Defender, Johannah B. Weber, Deputy Defender, and Lawrence J. O'Neill, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion.

Following a stipulated bench trial, the circuit court of St. Clair County convicted defendant, Samuel Absher, of unauthorized possession of a controlled substance (720 ILCS 570/402(c) (West 2002)). The appellate court reversed. No. 5–04–0729 (unpublished order under Supreme Court Rule 23). We granted the State's petition for leave to appeal and now reverse the judgment of the appellate court.

I. BACKGROUND

On March 18, 2004, pursuant to a fully negotiated guilty plea, defendant was convicted in the circuit court of St. Clair County of retail theft. In exchange for his plea, defendant was placed on probation for a period of two years. The agreement provided that defendant was to serve the first year in accordance with St. Clair County's “Intensive Probation Supervision” program, followed by a second year of “standard” probation. During the period of “intensive” probation, defendant agreed to abide by a number of conditions in addition to the general probation restrictions. The probation order stated, in relevant part:

“9. * * * [Y]ou shall further obey and comply with such other reasonable rules and regulations as are defined in article # 10.

10. SPECIFIC RULES AND REGULATIONS OF INTENSIVE PROBATION SUPERVISION:

* * *

(c) submit to searches of your person, residence, papers, automobile and/or effects at any time such requests are made by the Probation Officer, and consent to the use of anything seized as evidence in Court proceedings.”

On May 17, 2004, a St. Clair County probation department officer—assisted by officers from the Belleville police department—searched defendant's residence pursuant to this probation condition and discovered cocaine and marijuana. Defendant

[351 Ill.Dec. 166 , 950 N.E.2d 662]

was thereafter charged with one count of felony unauthorized possession of a controlled substance (720 ILCS 570/402(c) (West 2002)).¹

Prior to trial, defendant filed a motion to suppress the evidence recovered from his residence. Defendant contended that although he agreed to the suspicionless search condition contained in article 10(c) of the probation order, the search nevertheless violated his right to privacy in his residence because it was not based upon reasonable suspicion and he had not consented to the officers' entry.

At the suppression hearing, St. Clair County probation officer E.J. Jarvis testified that on March 18, 2004, he met with defendant and explained to him the conditions of his probation, including the provision contained in article 10(c) allowing suspicionless searches of defendant's residence. Jarvis stated that defendant posed no questions regarding the agreement as a whole nor with respect to any specific provision prior to signing it. In relation to Jarvis' testimony, defense counsel stipulated that there was no dispute that defendant had knowingly and voluntarily agreed to the intensive probation conditions.

George Chester, the supervisor of the intensive probation program at the St. Clair County probation department, testified to observing defendant on May 17, 2004, when defendant visited the probation office for a regularly scheduled meeting. Defendant's conduct led Chester to suspect that defendant may have been under the influence of drugs. Based upon this observation, combined with a review of defendant's file, Chester believed that defendant “was in possession of a controlled substance at his residence.” Pursuant to the search condition contained in article 10(c) of defendant's probation order, Chester contacted the State's Attorney's office and obtained authorization to search defendant's home. Chester then arranged for officers from the Belleville police department to accompany a probation officer in executing the search of defendant's residence later that evening.

St. Clair County Probation Officer Burdett Rice testified that Chester instructed him to search defendant's home later that evening. Rice and officers from the Belleville police department arrived at defendant's residence at approximately 10 p.m. Rice knocked on the door and informed defendant that the officers were there to perform a “routine search.” Defendant replied, “no, you are not tonight,” and tried to close the door. Rice prevented defendant from closing the door, and forced entry into defendant's home. The officers secured defendant and searched the premises, recovering a bag of crack cocaine, a bag of marijuana, and several lighters and pipes.

In denying defendant's suppression motion, the circuit court observed that “defendant cannot, at his convenience and perhaps because he is in an untenable position, make a declaration that he revokes a term of his probation.” The terms of the probation agreement, combined with the testimony of Chester, rendered the search reasonable.

Thereafter, a stipulated bench trial was conducted, and defendant was found guilty of unauthorized possession of a controlled substance (720 ILCS 570/402(c) (West 2002)), and sentenced to two years' imprisonment.

The appellate court reversed. No. 5–04–0729 (unpublished order under

[351 Ill.Dec. 167 , 950 N.E.2d 663]

Supreme Court Rule 23). Relying upon our decision in People v. Lampitok, 207 Ill.2d 231, 278 Ill.Dec. 244, 798 N.E.2d 91 (2003), which held that a search of a probationer's residence must be supported by reasonable suspicion, the panel determined that the warrantless and suspicionless search of defendant's home was improper, and that the circuit court erred in denying defendant's suppression motion.

The State filed a petition for leave to appeal to this court. Although we denied the State's petition, we directed the appellate court, pursuant to our supervisory authority, to vacate its order and reconsider its ruling in light of People v. Wilson, 228 Ill.2d 35, 319 Ill.Dec. 353, 885 N.E.2d 1033 (2008), which was issued during the pendency of this appeal and held that the fourth amendment allows a suspicionless search of a parolee.² The appellate court again reversed the circuit court's denial of defendant's suppression motion. No. 5–04–0729 (unpublished order under Supreme Court Rule 23). The panel held that “ Wilson does not change the Lampitok test for determining the reasonability for a search of a probationer's residence.”

We granted the State's petition for leave to appeal. Ill. S.Ct. R. 315(a) (eff.Aug.15, 2006).

II. ANALYSIS

When reviewing a circuit court's ruling on a motion to suppress evidence, that ruling is assessed under the two-part test adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). People v. Harris, 228 Ill.2d 222, 230, 319 Ill.Dec. 823, 886 N.E.2d 947 (2008). The circuit court's factual findings are upheld unless they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill.2d 425, 431, 256 Ill.Dec. 836, 752 N.E.2d 1078 (2001). The reviewing court then assesses the established facts in relation to the issues presented and may draw its own conclusions in deciding what relief, if any, should be granted. Harris, 228 Ill.2d at 230, 319 Ill.Dec. 823, 886 N.E.2d 947. Accordingly, this court reviews de novo the ultimate legal question of whether suppression is warranted. People v. Luedemann, 222 Ill.2d 530, 542–43, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006).

The fourth amendment to the United States Constitution guards 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; accord Ill. Const.1970, art. I, § 6. A “ search” occurs when “an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Although the fourth amendment protects an individual's privacy in a variety of settings, “[i]n none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home.” Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Because one's right to retreat into his or her home without unreasonable government interference is a core principle of the fourth amendment ( Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)), law enforcement officers generally may not enter, much less search, a person's home without a warrant

[351 Ill.Dec. 168 , 950 N.E.2d 664]

absent exigent circumstances. Payton, 445 U.S. at 590, 100 S.Ct. 1371.

The Supreme Court, however, has set forth limited exceptions to the warrant requirement. For example, consent has long been an exception to the need for a search warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In addition, a warrantless search may be considered reasonable upon a showing of “special law enforcement needs, diminished expectations of privacy, [and] minimal intrusions.” Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). Indeed, where an individual—such as defendant—is serving a term of probation, the restrictions placed upon his conduct due to the terms of his...