People v. Brandt

2019 IL App (4th) 180219

125 N.E.3d 501

429 Ill.Dec. 795

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.John R. BRANDT Jr., Defendant-Appellee.

NO. 4-18-0219

Appellate Court of Illinois, Fourth District.

FILED April 2, 2019

Benjamin L. Goetten, State’s Attorney, of Jerseyville (Patrick Delfino and David J. Robinson, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Michael J. Mettes and Jessica M. Hathaway, of Rosenblum, Schwartz, & Fry, P.C., of St. Louis, Missouri, for appellee.

JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 The State charged defendant, John R. Brandt Jr., with unlawful possession with intent to deliver a controlled substance and unlawful possession with intent to deliver cannabis. Defendant filed a motion seeking to suppress evidence obtained from the execution of a search warrant on his home, arguing probable cause did not exist for the issuance of the warrant. After a hearing, the Jersey County circuit court granted defendant's motion. The State appeals, arguing the court's decision was in error. We reverse and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 A. Search Warrant

¶ 4 On April 2, 2015, Inspector Mike Ringhausen, an officer with the South Central Illinois Drug Task Force (Task Force), filed an affidavit and complaint seeking a warrant to search defendant's home and to seize any items related to the unlawful possession or production of cannabis. The affidavit and complaint relied, in part, on the fact an officer detected the odor of cannabis during a "knock and talk" at defendant's home. Judge Pistorius issued the requested search warrant, which was executed that same day.

¶ 5 B. Information

¶ 6 On April 6, 2015, the State charged defendant by information with unlawful possession with intent to deliver a controlled substance ( 720 ILCS 570/401(a)(2)(B) (West 2014) (a substance containing cocaine) ) and unlawful possession with intent to deliver cannabis ( 720 ILCS 550/5(d) (West 2014) ).

¶ 7 C. Motion to Quash Search Warrant and to Suppress Evidence

¶ 8 In April 2016, defendant filed a "Motion to Quash Search Warrant and To Suppress Evidence." Defendant requested, citing section 114-12 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/114-12 (West 2014) (allowing for a pretrial motion "to Suppress Evidence Illegally Seized") ), the trial court to "quash the search warrant issued on April 2, 2015[,] and to suppress any and all evidence obtained from the execution of said search warrant." In support, defendant argued, in part, the alleged detection of the odor of cannabis outside his home should not have been considered when reviewing the complaint for a search warrant, as it was detected during an unlawful search of the curtilage of his home and, without that evidence, probable cause to support the search warrant was lacking.

¶ 9 D. Suppression Hearing

¶ 10 Over a two-day period in August and November 2017, the trial court held a hearing on defendant's motion to quash the search warrant and suppress evidence. The court heard testimony from Inspector Ringhausen and Master Sergeant Karen Gordon, another officer with the Task Force, and was presented with several photographs of defendant's home and its surroundings. The following is gleaned from the evidence presented.

¶ 11 On March 4, 2015, Inspector Ringhausen received a phone call from an anonymous person who indicated defendant was in possession of drugs and selling them from his home. Inspector Ringhausen testified he previously received similar information.

¶ 12 On April 2, 2015, Inspector Ringhausen decided to conduct a "knock and talk" at defendant's home in hopes of obtaining defendant's consent to search the home. Inspector Ringhausen, Sergeant Gordon, and Special Agent Shawn King drove to defendant's home to conduct the "knock and talk." The three officers drove in separate vehicles.

¶ 13 Defendant's two-story home was located along a narrow gravel road in rural Jersey County. Sergeant Gordon described the road as a "single road, so if someone was coming at you in a different direction someone would have to get off to the side." Defendant's home was situated parallel to the road. A driveway in the front of the home ran perpendicular to the road. The side of the home facing the road had one window on the first floor, which was located more towards the rear of the home. The window was to the kitchen. The area between the side of the home and the road was covered with gravel similar to the gravel on the road. The space appeared to be slightly wider than the width of a vehicle.

¶ 14 Inspector Ringhausen testified all three officers arrived at defendant's residence at the same time. Inspector Ringhausen drove the lead vehicle, with Agent King and Sergeant Gordon following behind. At the time of their arrival, defendant and his daughter were outside the home and near the front driveway. Inspector Ringhausen parked his vehicle by the driveway. Sergeant Gordon testified Agent King parked his vehicle "either to the right or behind" Inspector Ringhausen's vehicle. Sergeant Gordon testified she "continued straight forward," drove around Inspector Ringhausen's vehicle, and then parked in the graveled area between the road and the side of the home. Sergeant Gordon testified she parked in that location because it had the "same type of gravel" as the road and she did not "want to park on the grass." Inspector Ringhausen described the location where Sergeant Gordon parked her vehicle as "inadvertent" and a "coincidence." After parking, the driver side of Sergeant Gordon's vehicle was within several feet of the kitchen window, which was open and had a fan blowing outwards.

¶ 15 Inspector Ringhausen exited his vehicle and spoke with defendant outside the home. Inspector Ringhausen recommended defendant send his daughter to her grandfather's home, which was nearby. Defendant did so. Inspector Ringhausen explained the reason why he and the other officers were present. Defendant informed Inspector Ringhausen he wanted to lock the front door of his home, as he had dogs inside and was concerned for the officers' safety. Inspector Ringhausen allowed defendant to do so. Inspector Ringhausen requested defendant's driver's license, which defendant provided.

¶ 16 Sergeant Gordon testified she detected "[t]he smell of fresh cannabis" upon exiting her vehicle. Inspector Ringhausen testified Sergeant Gordon walked up during his conversation with defendant and asked defendant, " ‘[W]hy would there be an odor of cannabis coming from within the residence?’ " Sergeant Gordon testified she advised Inspector Ringhausen she detected the odor of fresh cannabis coming from the home.

¶ 17 Inspector Ringhausen requested defendant's consent to search the home. Defendant declined to give his consent and then left.

¶ 18 Officers secured the property, and Inspector Ringhausen left to apply for a warrant to search the home. Inspector Ringhausen secured a search warrant. The execution of that warrant resulted, in part, in the discovery of a sandwich bag containing approximately nine grams of cannabis in a cabinet above the kitchen window. Inspector Ringhausen and Sergeant Gordon did not recall whether the cannabis was sealed in the sandwich bag.

¶ 19 E. Written Post-Hearing Argument

¶ 20 Defendant filed a written post-hearing argument in support of his motion to quash the search warrant and suppress evidence. Defendant maintained, in part, the alleged detection of the odor of cannabis outside his home should not have been considered when reviewing the complaint for a search warrant, as it was detected during an unlawful search of the curtilage of his home and, without that evidence, probable cause to support the search warrant was lacking. Defendant specifically asserted an unlawful search occurred when Sergeant Gordon made a "deliberate and calculated effort to surveil the interior of the residence and to obtain information about the contents of the residence under the guise of an innocent ‘knock and talk’ encounter." In support of this assertion, defendant noted as follows: (1) "[t]here was no reason for the officers to approach the residence itself as the intended target of the ‘knock and talk’ encounter was not in the residence at the time the officers arrived," (2) "[t]here was no need to park next to the window of the residence as there was plenty of space to park away from the residence," and (3) "[Sergeant] Gordon stepped off the public thoroughfare and entered into the area immediately adjacent to the residence with neither consent nor warrant with the intent to gather evidence."

¶ 21 In response to this argument, the State asserted, in part, no evidence or testimony suggested Sergeant Gordon's approach to the residence was anything other than coincidental. In fact, the State noted Sergeant Gordon thoroughly explained her reasoning for parking next to defendant's home, which the State suggested was reasonable under the circumstances. The State contended the officers arrived at defendant's home for the lawful purpose of conducting a "knock and talk" and entered only on to those portions of the property that appeared open to the public. The State analogized the area where Sergeant Gordon parked her vehicle with a driveway, noting its location to the road, the similarity of the gravel to the road, and the absence of any distinguishing characteristics between that area and the road.

¶ 22 In reply, defendant argued the area directly outside his kitchen window was "private property, not accessible to the public" and the officers had no valid reason to be in that area when he was a distance from the home and other parking spots were available. Defendant maintained Sergeant Gordon "intentionally parked near the window in order to intrude into [his] constitutionally-protected space." Defendant also suggested the situation presented was similar to the situations presented in Florida v. Jardines , 569 U.S. 1, 133...