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Privacy Law FLASHPOINTS July 2020

July 15, 2020Print This Post Print This Post

Mario D. Robertson, Katten Muchin Rosenman, LLP, Chicago
312-902-5381 | E-mail Mario D. Robertson

Supreme Court Further Curtails Illinois Citizens’ Fourth Amendment Protections

The Fourth Amendment to the United States Constitution prohibits the government from making arrests and conducting searches in an individual’s home without a warrant. This prohibition is supposed to be subject only to certain limited exemptions, such as searches and arrests in an individual’s home in the case of exigent circumstances, consent searches, and plain-view searches. Courts have limited the government’s ability to conduct warrantless searches and seizures inside and around an individual’s home to specific exceptions to reflect the English common-law maxim, “a man’s home is his castle.”

But, as demonstrated by various state and federal court decisions, an individual’s ability to rely on these Fourth Amendment protections may be further constrained by a person’s socioeconomic class, which is intimately intertwined with race, potentially creating a divide among racial or socioeconomic lines with respect to who may avail themselves of these protections. Specifically, courts have found an individual does not have the same expectation of privacy to the area outside their living space when living in motel rooms or other temporary residences compared to an apartment or house. In People v. Lindsey, 2020 IL 124289, the Illinois Supreme Court joined a line of caselaw holding that warrantless searches of hallways and other spaces outside a defendant’s motel room are not unconstitutional.

In Lindsey, the Illinois Supreme Court held that the execution of a warrantless dog sniff outside the door of a motel room, in which the defendant was staying, did not violate the Fourth Amendment to the U.S. Constitution.

Facts of the Case

In Lindsey, Officer Timothy Muehler received information from a confidential informant that the defendant was selling narcotics from a motel room. 2020 IL 124289 at ¶3. Following this tip, a background check revealed the defendant’s prior arrests for the manufacture and delivery of controlled substances. Another officer called the defendant and discussed drugs, but no deal occurred. Id.

On April 27, 2014, Officer Muehler, who was observing the defendant’s motel, observed the defendant driving with a suspended driver’s license and requested backup. 2020 IL 124289 at ¶4. Upon being stopped and arrested for driving with a suspended license, the defendant signed a waiver of rights form at the police station and stated he was staying in Room 129 at his motel. Id. Another officer spoke with the motel staff and established the defendant was staying in Room 130, which prompted Deputy Jason Pena and his K-9 partner Rio to be called to the motel. Id. Deputy Pena and his K-9 partner conducted a “free air sniff” outside of Room 130, and Rio alerted to the odor of narcotics. Id. Based on these facts, Officer Muehler received a search warrant for Room 130 and found 4.7 grams of heroin along with other drug paraphernalia. The defendant was charged with “unlawful possession with intent to deliver a controlled substance within 1000 feet of a school.” Id.

The defendant filed a motion to suppress the evidence, asserting the warrantless dog sniff violated the Fourth Amendment. 2020 IL 124289 at ¶5. During the testimony of various officers, it was established that the door to Room 130 was “set back in a little alcove” and the “alcove itself had a door, but the area was ‘open to the public [and] the door was propped open’ ” on April 27, 2014. Id. Deputy Pena further testified that Rio came “within inches of the door” and alerted to the odor of narcotics. 2020 IL 124289 at ¶6.

The trial court denied the defendant’s motion, relying primarily on United States v. Roby, 122 F.3d 1120 (8th Cir. 1997). 2020 IL 124289 at ¶8. In Roby, the court held the defendant, a hotel guest, “may have had a reasonable expectation of privacy in his room but not in the corridor outside, so a warrantless dog sniff in that corridor did not violate the fourth amendment.” Id., citing Roby, supra, 122 F.3d at 1125.

However, on appeal, the appellate court reversed the trial court, relying on United States v. Whitaker, 820 F.3d 849, 853 – 854 (7th Cir. 2016). In Whitaker, the court held that “an apartment resident may have had a reasonable expectation of privacy in the hallway outside his door, so a warrantless dog sniff in that hallway violated the fourth amendment.” Lindsey, supra, 2020 IL 124289 at ¶9.

The Arguments on Appeal

The Illinois Supreme Court rejected the appellate court’s conclusion that the defendant had a justifiable expectation of privacy in the hallway outside his motel room door.

As an initial matter, the court acknowledged that there were two overlapping approaches in Fourth Amendment jurisprudence, in which courts assess whether a “search” has occurred, requiring a warrant or the presence of certain exceptions: (1) the property-based approach and (2) the privacy-based approach. 2020 IL 124289 at ¶17.

First, the court noted that Florida v. Jardines, 569 U.S. 1, 185 L.Ed.2d 495, 133 S.Ct. 1409 (2013), best exemplifies the property-based approach. 2020 IL 124289 at ¶¶20 – 21. In Jardines, following the receipt of an unverified tip that the defendant was growing marijuana inside his home, officers proceeded to lead a drug-detection dog to the base of the defendant’s porch, where the dog alerted to the odor of narcotics. 2020 IL 124289 at ¶21. Based on the dog’s alert, the officers obtained a search warrant and discovered marijuana plants inside the defendant’s home and charged the defendant. Id. However, on appeal, the U.S. Supreme Court held the Fourth Amendment protects “a person’s right to escape inside the home and thereby to avoid unwanted government intrusion” and such protection extends to the area immediately surrounding the home (“the curtilage”). 2020 IL 124289 at ¶22. Thus, the officers’ approach to the defendant’s home and the dog sniff near the curtilage constituted an unlawful search. Id.

In People v. Burns, 2016 IL 118973, 50 N.E.3d 610, 401 Ill.Dec. 468, the Illinois Supreme Court extended the curtilage protection established in Jardines. 2020 IL 124289 at ¶23. There, the court held that the landing outside the defendant’s apartment constitutes “curtilage,” in part, due to its proximity to the defendant’s home and its intimate association with home activities. 2020 IL 124289 at ¶24. The court further extended Burns, holding that “a common area hallway of an apartment in an unlocked building is curtilage.” 2020 IL 124289 at ¶26, citing People v. Bonilla, 2018 IL 122484, 120 N.E.3d 930, 427 Ill.Dec. 863. Thus, the court emphasized the takeaway from these cases is the special protections the “home” receives — “ [i]f there is no home, there can be no ‘constitutionally protected extension’ of it.” 2020 IL 124289 at ¶27, citing Jardines, supra, 133 S.Ct. at 1415.

The court emphasized, contrary to Burns and Bonilla, the evidence did not demonstrate the defendant’s motel room served as his home, and consequently the area outside of it was not curtilage. 2020 IL 124289 at ¶28. Specifically, the court noted the evidence failed to show the length of the defendant’s stay in the motel room. Id. The court further noted that if the defendant was only a guest for a few days, such a stay would be unlikely to support a finding that the motel room constituted the defendant’s home and the alcove its corresponding curtilage. Id.

However, assuming arguendo that the motel room was the defendant’s home, the court nevertheless determined that the alcove did not constitute curtilage.2020 IL 124289 at ¶29. In its analysis, the court relied on the four-factor test established by United States v. Dunn, 480 U.S. 294, 94 L.Ed.2d 326, 107 S.Ct. 1134, 1139 (1987):

[C]urtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. 2020 IL 124289at ¶29.

Applying the Dunn test, the court emphasized that the alcove where the drug-detection dog was led, while in close proximity to the defendant’s room, “was not within an enclosed area surrounding the room.” 2020 IL 124289 at ¶30. The court further emphasized that the “alcove was not put to personal use by the defendant” and was in a space open to the public and the defendant “took no steps to shield it from observation by other motel guests or the public.” Id. As a result, the court held the “warrantless dog sniff” conducted near the defendant’s motel room did not violate the Fourth Amendment property-based approach. 2020 IL 124289 at ¶31.

Second, the court assessed whether the warrantless dog sniff constituted a violation of the Fourth Amendment privacy-based approach. The basis of this approach is best exemplified by the two-factor test emphasized in Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507, 516 (1967). 2012 IL 124289 at ¶33. Under the Katz test, an individual has an expectation privacy, requiring a warrant, if (1) “the person ha[s] exhibited an actual (subjective) expectation of privacy” and (2) “that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Id., quoting Katz, supra, 88 S.Ct. at 516.

The privacy-based approach is further exemplified by the Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27, 150 L.Ed.2d 94, 121 S.Ct. 2038, 2042 (2001). There, the Court held that police officers executed an unlawful search when they aimed a thermal sensor at the defendant’s home to detect heat emanating from marijuana grow lamps inside the home. 2020 IL 124289 at ¶35. The Court’s ruling was based primarily on the fact that the officers used a device that was not available to the general public to detect something that would have been unknowable without physical intrusion. Id.

In Whitaker, upon which the Illinois Appellate Court based its decision, the Seventh Circuit held the defendant had a reasonable expectation of privacy in the hallway outside his door and thus a warrantless dog sniff in the hallway violated the Fourth Amendment. 2020 IL 124289 at ¶9, citing Whitaker, supra, 820 F.3d at 853 – 854. There, the court emphasized that a drug-detection dog was analogous to the thermal sensor used in Kyllo, because the dog is “a ‘sophisticated sensing device not available to the general public’ and because it detected something — the presence of drugs — that would have been unknowable without entering the apartment.” 2020 IL 124289at ¶37, citing Whitaker, supra, 820 F.3d at 853. Although the court acknowledged the defendant could not exclude people from the hallway, the court noted the defendant nevertheless has a “reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.” Id.

In support of his appeal, the defendant asserted that his expectation of privacy was consistent with Kyllo and Whitaker, and consequently, these cases should be controlling. 2020 IL 124289at ¶38. However, the court rejected the defendant’s argument, noting that an individual’s expectation of privacy in his or her motel room relates only to the place searched, not the area outside the room. 2020 IL 124289at ¶39. The court noted that the dog’s sniff “did not detect the odor of narcotics inside [the defendant’s motel room] but rather outside.” [Citation omitted.] Id.

The court further noted that factors such as “the person’s ownership or possessory interest in the place, the person’s prior use of the place, [and] the person’s exclusive control of the place or ability to exclude others from it” determine if a person has a reasonable expectation of privacy in the place searched. 2020 IL 124289at ¶40, citing People v. Johnson, 237 Ill.2d 81, 927 N.E.2d 1179, 340 Ill.Dec. 168 (2010). In its application of these factors, the court emphasized the defendant did not own the alcove outside his motel room and could not exclude others from using the space. 2020 IL 124289at ¶41. The court further determined the defendant did not have a subjective expectation of privacy in the alcove, noting that “[a] guest’s expectation of privacy inside a motel room diminishes quickly outside it.” 2020 IL 124289at ¶42. As a result, the court reversed the appellate court’s judgment and affirmed the trial court’s denial of the defendant’s motion to suppress evidence. 2020 IL 124289at ¶44.

A Strong Dissent

In the dissent, written by Chief Justice Anne M. Burke and joined by Justice Neville, these justices asserted the majority’s opinion was in clear contradiction to binding United States Supreme Court precedent. In Justice Burke’s view, the court only needed to analyze whether the police’s conduct constituted an unlawful search under the privacy-based approach. 2020 IL 124289at ¶67.

As an initial matter, Justice Burke refuted the majority’s characterization of the extent of the warrantless dog sniff. Specifically, Justice Burke emphasized the majority “concedes that defendant had a reasonable expectation of privacy inside his motel room” but that the drug detection dog “did not teleport through the door and smell the air in the room; [it] smelled the air in the alcove.” 2020 IL 124289at ¶52. However, Justice Burke noted the court’s conclusion, that the dog sniff would only have been a search if the dog sniff happened inside the motel room, was contrary to U.S. Supreme Court precedent. Instead, physical intrusion into a space, in which the defendant had a reasonable expectation of privacy, is not a requisite factor to determine whether a defendant’s Fourth Amendment rights were violated. Id.

In support of this assertion, Justice Burke cited multiple cases, in which the government’s activity outside the place being searched “to obtain information about the interior of an enclosed space in which a person has a reasonable expectation of privacy constitutes a search under the fourth amendment.” 2020 IL 124289at ¶53. In addition to Kyllo and Jardines, described above, the dissent highlighted United States v. Karo, 468 U.S. 705, 82 L.Ed.2d 530, 104 S.Ct. 3296, 3303 – 3304 (1984), in which a tracking device was place in a can of chemicals and tracked to the defendant’s home. 2020 IL 124289at ¶55. In Karo, the court held the government’s use of the tracking device to monitor the device’s signal emanating from inside the defendant’s home, revealed “a critical fact about the interior of the premises . . . that [the government] could not have otherwise obtained without a warrant.” Id., citing Karo, supra, 104 S.Ct. at 3303.

Justice Burke further noted that although there were differing rationales expressed in Jardines, finding the warrantless dog sniff violated the Fourth Amendment, none of the Justices held “that the dog sniff was not a search of the house’s interior because the dog had only smelled the air on the porch.” 2020 IL 124289 at ¶57.

As a result, Justice Burke contended that the K-9 dog’s sniff, which was done “within inches of the door,” was the use of a monitoring device not in the general public use, “to obtain information that defendant was possessing illegal drugs inside his motel room.” 2020 IL 124289at ¶¶60, 62. Thus, Justice Burke asserted that the evidence obtained from the search of the defendant’s motel room should be suppressed as fruit of the poisonous tree. 2020 IL 124289at ¶66.


As noted above, in accordance with the English common-law maxim, “a man’s home is his castle,” courts have limited the government’s ability to conduct warrantless searches and seizures inside and around an individual’s home to specific exceptions. In Lindsey, supra, the Illinois Supreme Court, after conceding the defendant had a reasonable expectation of privacy in his motel room, held that such expectation did not extend to mere inches outside the defendant’s door. As the dissent emphasizes, U.S. Supreme Court precedent has prohibited the government from engaging in conduct to obtain information about the “interior of the premises,” in the absence of physical intrusion. 2020 IL 124289at ¶55.

It is undisputed that an individual’s “race and ethnicity in terms of stratification often determine a person’s socioeconomic status.” SeeAmerican Psychological Association, Ethnic and Racial Minorities & Socioeconomic Status (July 2017), www.apa.org/pi/ses/resources/publications/minorities. Consequently, low-income households or individuals who rely on motels, either for temporary lodging or for longer periods of time, are more likely to identify as racial minorities. As a result, an unanticipated outcome of Lindsey, supra, is that racial minorities who stay at motels or similar forms of temporary lodging, may receive fewer Fourth Amendment protections than individuals fortunate enough to be homeowners or renters. The Illinois Supreme Court offers a glimmer of hope, noting that the court’s decision does not imply “a hotel or motel room may never be a home or that the area outside such a room may never be within its curtilage.” 2020 IL 124289 at ¶27 n.2. The court further noted that such a determination must be made on a case-by-case basis and would likely be dependent on the length of a defendant’s stay. Id. However, defendants will likely face an uphill battle to establish that their reasonable expectation of privacy extends beyond their motel room given the court’s decision in Lindsey.

For more information about privacy law, see DEFENDING CRIMINAL CASES: PRETRIAL ISSUES, GUILTY PLEAS, AND DEFENSES (IICLE®, 2017). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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