People v. Slavin
| Decision Date | 30 December 2011 |
| Docket Number | No. 2–10–0764.,2–10–0764. |
| Citation | 964 N.E.2d 150,357 Ill.Dec. 787,2011 IL App (2d) 100764 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ronald W. SLAVIN, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Thomas A. Lilien, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Elgin, and Eric S. Palles (Court-appointed), Ravitz & Palles, P.C., Chicago, for Ronald W. Slavin.
Michael J. Waller, Lake County State's Attorney, Stephen E. Norris, Deputy Director, Sharon Shanahan, State's Attorneys Appellate Prosecutor, for People.
[357 Ill.Dec. 789] ¶ 1 Defendant, Ronald W. Slavin, was charged with possession of less than 2.5 grams of cannabis (720 ILCS 550/4(a) (West 2010)) and possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2010)). Defendant moved to suppress evidence that was obtained by a warrantless entry into and search of an ice fishing shanty within which he was fishing. The trial court denied the motion to suppress. Following a bench trial, defendant was found guilty of the charges and was sentenced to one year of conditional discharge and fined $750. On appeal, defendant contends the trial court erred by denying his motion to suppress evidence. We affirm.
¶ 3 Conservation police officer Brandon Fehrenbacher testified at the hearing on defendant's motion to suppress. On Wednesday, January 27, 2010, from approximately 9 a.m. to 5 p.m., Fehrenbacher was patrolling Spring Lake, in Lake County, Illinois. As part of his employment with the Illinois Department of Natural Resources Law Enforcement, Fehrenbacher was making summary checks on ice fishermen to ensure that they were in compliance with fishing regulations, pursuant to section 1–185 of the Fish and Aquatic Life Code (Code) (515 ILCS 5/1–185 (West 2010)).
¶ 4 Sometime before noon, Fehrenbacher observed an ice fishing shanty on the west side of Spring Lake. He parked along the road and, upon exiting his squad car, made his way toward the ice shanty. Fehrenbacher then stopped outside the ice shanty for a period of approximately three to five minutes. During this time, Fehrenbacher listened to the conversation occurring within the ice shanty. He heard the occupants talking about fish that they wished to catch and he heard one occupant comment on who was going to “pack the bowl” and remark about the quality of the “weed.” In Fehrenbacher's training and experience, the phrase “pack the bowl” is a reference to placing or packing cannabis inside a glass pipe or bowl, which is used to inhale the cannabis. Fehrenbacher also heard a cough, which he described, based on his experience, as a sound someone would make after inhaling cannabis through a pipe.
¶ 5 Fehrenbacher described the ice shanty as being made of canvas and looking like an oversized tent-like structure, which was pulled out onto the ice and erected for persons to fish within it. When Fehrenbacher was outside listening, the inside was not visible. The bottom was made of plastic so the shanty could be easily dragged out onto the ice, quickly erected, and moved around the ice for fishermen to try different fishing holes. The purpose of such a shanty is to allow fishermen to fish through a hole cut in the ice while they are sheltered from the outside elements.
¶ 6 After hearing the occupants' conversation, Fehrenbacher opened the ice shanty front. He identified himself and observed the scene inside. Fehrenbacher saw three individuals, fishing equipment, tackle boxes, bait, buckets, a bench, and, possibly, a miniature heater. He did not see any sleeping arrangements, cooking apparatus, radio, or television. Fehrenbacher immediately detected an odor of burnt cannabis. Fehrenbacher informed the occupants that he smelled cannabis and he asked which one of them had possession of the drug. At that point, defendant produced from his right hand an orange glass pipe and from his coat pocket a plastic bag. The bag contained 1.93 grams of cannabis. Fehrenbacher proceeded to check the shanty for any illegal fishing devices and he checked the occupants for fishing licenses. Fehrenbacher then asked the occupants other than defendant if they were in possession of any illegal substances. Upon consent, they were searched and no such substances were found. Defendant was thereafter taken into custody and issued a notice of violation for the misdemeanors of possession of drug paraphernalia and of cannabis.
¶ 7 The State presented the following two-prong argument: (1) the entry was justified because the shanty was similar to an automobile, as it is was easily collapsible and moveable and the officer had probable cause to believe that the individuals inside the shanty were consuming cannabis, and (2) section 1–185 of the Code granted Fehrenbacher the power to search without probable cause. Defendant maintained that the shanty was more like a home and that he had a reasonable expectation of privacy, requiring the officer to obtain a warrant prior to entering. Defendant also argued that the warrantless search could not be justified as an administrative search pursuant to section 1–185 of the Code. [357 Ill.Dec. 791] ¶ 8 The trial court denied the motion to suppress. The court found that “the ice shanty [was] more akin to an automobile than to a home” and that the search fell under the “automobile exception” to the warrant requirement of the fourth amendment. The court stated that, “[u]nlike a home, [the shanty] is mobile and could be easily removed from the scene,” implying that this made it impracticable for Fehrenbacher to obtain a warrant. Looking at the totality of the circumstances, the court concluded that the officer had probable cause to believe that cannabis was inside the shanty and that, therefore, the officer had a lawful basis to enter the shanty and search without a warrant.
¶ 9 Following a bench trial, the trial court found defendant guilty of possession of drug paraphernalia and of possession of cannabis and sentenced him to one year of conditional discharge and fined him $750. Defendant timely appeals the denial of the motion to suppress.
¶ 11 The review of a trial court's ruling on a motion to suppress involves mixed questions of law and fact. People v. Gherna, 203 Ill.2d 165, 175, 271 Ill.Dec. 245, 784 N.E.2d 799 (2003). The trial court's factual findings are entitled to great deference. However, we review de novo the legal question of whether suppression is warranted under those facts. Gherna, 203 Ill.2d at 175, 271 Ill.Dec. 245, 784 N.E.2d 799.
¶ 12 It is now fundamentally recognized that “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “But the extent to which the Fourth Amendment protects people may depend upon where those people are.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). 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, i.e., an expectation of privacy “that has ‘a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” Carter, 525 U.S. at 88, 119 S.Ct. 469 (quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)); accord Smith v. Maryland, 442 U.S. 735, 740–41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
¶ 13 Defendant believes that the trial court erred in finding that the ice shanty was more akin to an automobile than to a home. The automobile exception allows for the warrantless search of a vehicle when an officer has probable cause to believe that the vehicle contains contraband or other evidence of criminal activity. People v. Stroud, 392 Ill.App.3d 776, 803, 331 Ill.Dec. 922, 911 N.E.2d 1152 (2009). The basis of the exception is the reduced expectation of privacy in an automobile and the exigency of the automobile's mobility. See Redwood v. Lierman, 331 Ill.App.3d 1073, 1082, 265 Ill.Dec. 432, 772 N.E.2d 803 (2002) (citing South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)).
¶ 14 Defendant points out that the automobile exception is based on a vehicle being readily moveable and capable of eluding police ( California v. Carney, 471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)) and that the application of the exception requires the “presence of the vehicle in a setting that objectively indicates the vehicle is being used for transportation” ( Carney, 471 U.S. at 394, 105 S.Ct. 2066). Unlike an automobile, defendant points out, the shanty is not readily mobile, as it must be dragged along the ice on its plastic bottom; it has no wheels; and, although portable, its mobility is not such as to have made obtaining a warrant impracticable.
¶ 15 Defendant maintains that an ice shanty is more like a tent than an automobile, as it is was clearly being used for shelter similar to that of a dwelling. See United States v. Gooch, 6 F.3d 673, 677 (9th Cir.1993) (). 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...
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