People v. Bonilla

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

JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Justices Garman, Burke, Theis, and Neville concurred in the judgment and opinion. Chief Justice Karmeier dissented, with opinion. Justice Thomas dissented, with opinion, joined by Chief Justice Karmeier.

OPINION

¶ 1 This appeal presents a search and seizure issue involving application of this court's recent opinion in People v. Burns, 2016 IL 118973. Burns, relying on Florida v. Jardines, 569 U.S. 1 (2013), held that the warrantless use of a drug-detection dog at a defendant's apartment door, located within a locked apartment building, violated a defendant's rights under the fourth amendment to the United States Constitution. U.S. Const., amend. IV. In this case, the circuit court of Rock Island County determined that police violated defendant's fourth amendment rights by conducting a dog sniff of the threshold of defendant's apartment, located on the third floor of an unlocked apartment building. The appellate court affirmed. 2017 IL App (3d) 160457. We now affirm.

¶ 2 BACKGROUND

¶ 3 The facts of this case were stipulated to by the parties. Defendant, Derrick Bonilla, lived in an apartment at Pheasant Ridge Apartment Complex in Moline, Illinois. The East Moline Police Department received a tip that defendant was selling drugs from his apartment. Acting on that tip, on March 19, 2015, officers brought a trained drug-detection dog to defendant's apartment building. The exterior doors to the apartment building were not locked. The three-floor apartment building contained four apartments on each floor. Once inside the building, Moline canine officer Genisio walked his drug-detection dog through the second-floor common area. The dog showed no interest in the second-floor common area and did not alert on any of the apartment thresholds. Officer Genisio then walked his dog through the third-floor common area. The dog showed no interest in units 301, 302, or 303. As the dog came to defendant's apartment, unit 304, however, it moved back and forth in the doorway, sniffed at the bottom of the door, and signaled a positive alert for the presence of narcotics. Officers obtained a search warrant for defendant's apartment based on the drug-detection dog's alert. Officers searched defendant's apartment and found cannabis. Defendant was later arrested and charged with unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(c) (West 2014)). ¶ 4 In June 2015, defendant filed a motion to suppress. A hearing was held on that motion in August 2016. The parties stipulated to the facts, and no additional testimony or evidence was presented. At the conclusion of the hearing, the trial court granted defendant's motion to suppress, stating:

"But I think whether you are doing it as a privacy interest under [ Kyllo v. United States, 533 U.S. 27 (2001),] or a curtilage property interest under [ Jardines, 569 U.S. 1], I think it would just be unfair to say you can't come up on a person who lives in a single family residence and sniff his door but you can go into someone's hallway and sniff their door if they happen to live in an apartment. That's a distinction with an unfair difference. So I'm granting the motion."

¶ 5 After the State's oral motion to reconsider was denied, the State appealed. The State did not file a separate certificate of impairment but did set forth in its notice of appeal that the granting of defendant's motion to suppress had the substantive effect of dismissing the charges. ¶ 6 The appellate court affirmed, holding that the common area just outside the door of an apartment constituted curtilage under Jardines and Burns. 2017 IL App (3d) 160457, ¶ 18. The appellate court determined that the State acquired the evidence of drugs by intruding into a constitutionally protected area. 2017 IL App (3d) 160457, ¶ 21. The appellate court also rejected the State's argument that the good faith exception applies to prevent the evidence from being suppressed. 2017 IL App (3d) 160457, ¶ 24. Justice Wright dissented, arguing that this court had emphasized that police entered a locked apartment complex in Burns and that she would hold the hallway in this unsecured apartment building was not curtilage. 2017 IL App (3d) 160457, ¶¶ 28-40 (Wright, J., dissenting). We allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

We note that the supplemental certification of record contains an "Agreed Statement of Facts" indicating "[t]he search warrant and affidavit filed in [this] case *** is the same search warrant and affidavit that was the subject of the defendant's motion to suppress evidence. It was the same search warrant and affidavit that was viewed by the trial judge in reaching his conclusion with respect to the motion to suppress." Unfortunately, neither the common-law record nor the supplemental record contains a copy of the search warrant and affidavit. Because the trial court's factual findings are not contested by the parties, we have relied on the report of proceedings, the defendant's motion to quash warrant and suppress evidence, and the parties' briefs in setting forth the relevant facts of this case.

The record on appeal does not indicate Officer Genisio's first name.

¶ 7 ANALYSIS

¶ 8 The State appeals from the judgment of the appellate court affirming the trial court's order granting defendant's motion to suppress. On appeal, we give great deference to a trial court's findings of fact when ruling on a motion to suppress. People v. Cregan, 2014 IL 113600, ¶ 22. We will reverse the trial court's findings of fact only if they are against the manifest weight of the evidence. Cregan, 2014 IL 113600, ¶ 22. The trial court's legal ruling on whether the evidence should be suppressed is reviewed de novo. People v. Bridgewater, 235 Ill. 2d 85, 92-93 (2009). ¶ 9 Here, the parties stipulated to the facts. The record on appeal does not contain the search warrant and affidavit relied on by the trial court in ruling on defendant's motion to suppress. The State, as the appellant, has the burden of presenting a record sufficient to support its claim of error, and any insufficiencies must be resolved against it. People v. Hunt, 234 Ill. 2d 49, 58 (2009). Obviously, our legal analysis on a motion to suppress is heavily dependent on the specific facts of each case, and we admonish the State for not providing this court with a complete record in this appeal. Here, there was no testimony at the hearing on defendant's motion to suppress. The only evidence to support issuance of the search warrant was the search warrant itself and the affidavit. It is inconceivable that the State would expect this court to review the propriety of the trial court's ruling on defendant's motion to suppress evidence without providing a copy of the documents that were considered by the trial court in making its ruling. Accordingly, any doubts that may arise from the incompleteness of the record will be resolved against the State, as the appellant. Fouch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). ¶ 10 The question of law at issue in this appeal is whether the warrantless use of a drug-detection dog at the threshold of an apartment door, located on the third floor of an unlocked apartment building containing four apartments on each floor, violated defendant's fourth amendment rights. We review this question of law de novo. People v. Caballes, 221 Ill. 2d 282, 289 (2006).

¶ 11 I. Whether Defendant's Fourth Amendment Rights Were Violated

¶ 12 The State argues that use of the drug-detection dog did not violate defendant's fourth amendment rights because the common-area hallway in front of defendant's apartment door did not constitute curtilage. Defendant counters that use of the drug-detection dog at the threshold of his apartment door violated the fourth amendment to the United States Constitution (U.S. Const., amend. IV). According to defendant, "a citizen's home is first among equals in Fourth Amendment jurisprudence, and the threshold is part of the home as a matter of law." ¶ 13 The fourth amendment to the United States Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., amend. IV.

¶ 14 The parties disagree whether this court's recent decision in Burns and the United States Supreme Court's decision in Jardines control. We begin by reviewing the Supreme Court's decision in Jardines. In Jardines, police received an "unverified tip" that marijuana was being grown in the defendant's home. Jardines, 569 U.S. at 3. Police subsequently went to defendant's home with a drug-detection dog and approached the front porch. After sniffing the base of the front door, the dog gave a positive alert for narcotics. Police applied for and received a warrant to search defendant's residence based on the dog sniff. A search of the residence resulted in the discovery of marijuana plants. Jardines, 569 U.S. at 3-4. ¶ 15 The Supreme Court limited its review "to the question of whether the officers' behavior was a search within the meaning of the Fourth Amendment." Jardines, 569 U.S. at 5. The Supreme Court held that a warrantless "dog sniff" of an individual's front porch was a search for purposes of the fourth amendment and suppressed the recovered evidence. The Supreme Court stated that the fourth amendment establishes

"a simple baseline, one that for much of our history formed the exclusive basis for its protections: When 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a "search" within the original meaning of the Fourth Amendment' has 'undoubtedly occurred.' " Jardines, 569 U.S. at 5 (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)).

¶ 16 The Court in Jardines recognized that its decision in Katz v. United States, 389 U.S. 347 (1967), holding that property rights are not the sole measure of the fourth amendment's protections, may add to this baseline but does not subtract anything from the fourth amendment's protections " 'when the Government does engage in [a] physical intrusion of a constitutionally protected area.' " (Emphasis in original.) Jardines, 569 U.S. at 5 (quoting United States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring in the judgment, joined by Marshall, J.)). The Supreme Court emphasized that the principle in such a case is straightforward:

"The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner." Jardines, 569 U.S. at 5-6.

¶ 17 The Supreme Court first considered whether police intruded upon a constitutionally protected area. "The Fourth Amendment does not *** prevent all investigations conducted on private property ***." Jardines, 569 U.S. at 6. However, the Court expressly stated:

"But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' " Jardines, 569 U.S. at 6 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

¶ 18 The Court specifically regarded "the area 'immediately surrounding and associated with the home'—what our cases call the curtilage" as " 'part of the home itself for Fourth Amendment purposes.' " Jardines, 569 U.S. at 6 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). The Court reasoned that "[t]his area around the home is 'intimately linked to the home, both physically and psychologically,' and is where 'privacy expectations are most heightened.' " Jardines, 569 U.S. at 7 (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)). The Court found "no doubt" that the police officers entered the curtilage of Jardines's home as "[t]he front porch is the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends.' " Jardines, 569 U.S. at 7 (quoting Oliver, 466 U.S. at 182 n.12). ¶ 19 After determining that police officers intruded upon a constitutionally protected area, the Supreme Court then considered whether the police conduct in entering this constitutionally protected area with a drug-detection dog was "accomplished through an unlicensed physical intrusion." Jardines, 569 U.S. at 7. The Court recognized that law enforcement officers need not " 'shield their eyes' when passing by the home 'on public thoroughfares,' " but an officer's ability to gather information is "sharply circumscribed" after stepping off the public thoroughfare. Jardines, 569 U.S. at 7 (quoting Ciraolo, 476 U.S. at 213). The Court also recognized an implicit license for individuals, including police, "to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." Jardines, 569 U.S. at 8. ¶ 20 "Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is 'no more than any private citizen might do.' " Jardines, 569 U.S. at 8 (quoting Kentucky v. King, 563 U.S. 452, 469 (2011). There is no customary invitation, however, for police to introduce "a trained police dog to explore the area around the home in hopes of discovering incriminating evidence." Jardines, 569 U.S. at 9. ¶ 21 The Court noted that it was unnecessary to decide whether the officers' investigation violated Jardines's reasonable expectation of privacy under Katz. The Court explained:

"The Katz reasonable-expectations test 'has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas." (Emphases in original.) Jardines, 569 U.S. at 11 (quoting Jones, 565 U.S. at 409).

warrantless searches upon a person's home or its curtilage in Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018):

"[T]he Fourth Amendment's protection of curtilage has long been black letter law. '[W]hen it comes to the Fourth amendment, the home is first among equals.' Florida v. Jardines, 569 U. S. 1, 6 (2013). 'At the amendment's "very core" stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." ' Ibid. (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)). To give full practical effect to that right, the Court considers curtilage—'the area "immediately surrounding and associated with the home" '—to be ' "part of the home itself for Fourth Amendment purposes." ' Jardines, 569 U. S., at 6 (quoting Oliver v. United States, 466 U. S. 170, 180 (1984)). 'The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.' California v. Ciraolo, 476 U.S. 207, 212-213 (1986).

¶ 29 When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines, 569 U. S., at 11. Such conduct thus is presumptively unreasonable absent a warrant." Collins, 584 U.S. at ___, 138 S. Ct. at 1670. ¶ 30 In Collins, an officer walked up a driveway from the road, past the front lawn and the front perimeter of a house, and into a partially enclosed portion of the driveway abutting the house to get to the covered motorcycle he wanted to search. In deciding whether the part of the driveway where the defendant's motorcycle was parked and subsequently searched is curtilage, the Supreme Court indicated that the concept defining curtilage is " ' "easily understood from our daily experience." ' " Collins, 584 U.S. at ___, 138 S. Ct. at 1671 (quoting Jardines, 569 U.S. at 7, quoting Oliver, 466 U.S. at 182 n.12). The Supreme Court determined that the area was curtilage, reasoning:

"Just like the front porch, side garden, or area 'outside the front window,' Jardines, 569 U. S., at 6, the driveway enclosure where [the officer] searched the motorcycle constitutes 'an area adjacent to the home and "to which the activity of the home life extends," ' and so is properly considered curtilage. Id.,

at 7 (quoting Oliver, 466 U. S., at 182, n. 12.)" Collins, 584 U.S. at ___, 138 S. Ct. at 1671.

Accordingly, the Supreme Court concluded that by physically intruding on the curtilage of the defendant's home to search the motorcycle, the police invaded the defendant's fourth amendment interest in the item searched and also invaded his fourth amendment interest in the curtilage of his home. Collins, 584 U.S. at ___, 138 S. Ct. at 1671. ¶ 31 The Supreme Court then declined to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage. Collins, 584 U.S. at ___, 138 S. Ct. at 1675. In doing so, the Supreme Court specifically refused to create any exception to the general rule that curtilage receives fourth amendment protection. Collins, 584 U.S. at ___, 138 S. Ct. at 1675. The Court recognized that exceptions to the general rule that result in certain types of curtilage receiving fourth amendment protection for some purposes but not for others would likely create confusion. Collins, 584 U.S. at ___, 138 S. Ct. at 1675. The Court thus rejected the State's suggestion that it adopt a more limited rule and hold that the automobile exception does not permit warrantless entry into " 'the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage like a garage.' " Collins, 584 U.S. at ___, 138 S. Ct. at 1674. The Court explained that such a rule "automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles, but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage." Collins, 584 U.S. at ___, 138 S. Ct. at 1675. ¶ 32 Applying the relevant legal principles articulated by the Supreme Court in Jardines and Collins to this case yields the same result. "Just like the front porch, side garden, or area 'outside the front window,' " the threshold of defendant's apartment door constitutes " 'an area adjacent to the home and "to which the activity of home life extends" ' and so is properly considered curtilage." Collins, 584 U.S. at ___, 138 S. Ct. at 1671 (quoting Jardines, 569 U.S. at 6-7, quoting Oliver, 466 U.S. at 182 n.12). Accordingly, we hold that in physically intruding on the curtilage of defendant's apartment to conduct a dog sniff of the threshold, officers violated defendant's fourth amendment rights.

¶ 33 II. Whether the Good-Faith Exception to the Exclusionary Rule Applies

¶ 34 Alternatively, the State asserts that, even if the police violated the fourth amendment in this case, the evidence should not be suppressed because the officers acted in good-faith reliance on established precedent. The State acknowledges that this court rejected a similar argument in Burns. ¶ 35 "Generally, courts will not admit evidence obtained in violation of the fourth amendment." Burns, 2016 IL 118973, ¶ 47 (citing People v. Sutherland, 223 Ill. 2d 187, 227 (2006)). As this Court recognized in Burns:

"The fruit-of-the-poisonous-tree doctrine is an outgrowth of the exclusionary rule providing that 'the fourth amendment violation is deemed the "poisonous tree," and any evidence obtained by exploiting that violation is subject to suppression as the "fruit" of that poisonous tree.' " Burns, 2016 IL 118973, ¶ 47 (quoting People v. Henderson, 2013 IL 114040, ¶ 33).

"[T]he 'prime purpose' of the exclusionary rule 'is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.' " Illinois v. Krull, 480 U.S. 340, 347 (1987) (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). The good-faith exception to the exclusionary rule is a judicially created rule providing that evidence obtained in violation of a defendant's fourth amendment rights will not be suppressed when "police acted with an ' "objectively 'reasonable good-faith belief' that their conduct [was] lawful," ' or when their conduct involved only simple, isolated negligence." People v. LeFlore, 2015 IL 116799, ¶ 24 (quoting United States v. Katzin, 769 F.3d 163, 171 (2014), quoting Davis v. United States, 564 U.S. 229, 238 (2011), quoting United States v. Leon, 468 U.S. 897, 909 (1984)). ¶ 36 This "good-faith exception" to the exclusionary rule has been codified in section 114-12(b)(1), (b)(2) of the Code of Criminal Procedure of 1963:

"(1) If a defendant seeks to suppress evidence because of the conduct of a peace officer in obtaining the evidence, the State may urge that the peace officer's conduct was taken in a reasonable and objective good faith belief that

the conduct was proper and that the evidence discovered should not be suppressed if otherwise admissible. The court shall not suppress evidence which is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer who acted in good faith.
(2) 'Good faith' means whenever a peace officer obtains evidence:

(i) pursuant to a search or an arrest warrant obtained from a neutral and detached judge, which warrant is free from obvious defects other than non-deliberate errors in preparation and contains no material misrepresentation by any agent of the State, and the officer reasonably believed the warrant to be valid; or
(ii) pursuant to a warrantless search incident to an arrest for violation of a statute or local ordinance which is later declared unconstitutional or otherwise invalidated." 725 ILCS 5/114-12(b)(1), (2) (West 2012).

¶ 37 The good-faith exception to the exclusionary rule includes good-faith reliance upon binding appellate precedent that specifically authorized a particular practice but was subsequently overruled. Davis, 564 U.S. at 241; People v. LeFlore, 2015 IL 116799, ¶¶ 29-31. ¶ 38 The State argues that the good-faith exception to the exclusionary rule should apply in this case for the same reasons argued by the State in Burns: (1) the officers relied on binding United States Supreme Court precedent holding that dog sniffs are not fourth amendment searches; (2) the officers relied on Illinois precedent holding that residents have no reasonable expectation of privacy in apartment building common areas; and (3) the officers relied on federal precedent holding there was no reasonable expectation of privacy in apartment building common areas. According to the State, it was objectively reasonable for the officers to rely in good faith on "binding appellate precedent that the precise location of the K9 sniff was not constitutionally protected." According to the State, "that the exterior door here was unlocked makes all the difference." We disagree. As we have already stated, whether the entrance to the common area of the defendant's apartment was unlocked, as opposed to being locked, is a distinction without a difference. Supra ¶ 25. (6th Cir. 2001); United States v. Nohara, 3 F.3d 1239 (9th Cir. 1993); United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991); United States v. Barrios-Moriera, 872 F.2d 12 (2d Cir. 1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 130 (1990); United States v. Eisler, 567 F.2d 814 (8th Cir. 1977). The State argues that, given this legal landscape, the officers here would have had no reason to suspect that their conduct was wrongful under the circumstances. This court has already rejected the State's "legal landscape" argument in Burns. Burns, 2016 IL 118973, ¶ 67. Significantly, all of these cases were pre-Jardines, and many of these cases had already been called into doubt as no longer good law after Jardines. Indeed, Jardines was decided two years before the dog sniff of defendant's threshold in this case. ¶ 49 For these reasons, we hold that the good-faith exception to the exclusionary rule is not applicable.

¶ 50 CONCLUSION

¶ 51 We hold that the warrantless use of a drug-detection dog at the threshold of defendant's apartment door violated his rights under the fourth amendment to the United States Constitution. U.S. Const., amend. IV. We also conclude that the good-faith exception to the exclusionary rule does not apply. We affirm the judgment of the appellate court and affirm the trial court's judgment granting defendant's motion to suppress. ¶ 52 Affirmed. ¶ 53 CHIEF JUSTICE KARMEIER, dissenting: ¶ 54 I join in Justice Thomas's dissent—as I did in People v. Burns, 2016 IL 118973—and I write separately only to add a few observations of my own and reiterate some points he made in Burns. Early on, the majority recognizes that "our legal analysis on a motion to suppress is heavily dependent on the specific facts of 18 each case" (supra ¶ 9); however, the majority then readily takes statements the Supreme Court made in the context of true "curtilage" cases and plugs them into an analysis of a much different property interest, purporting to distinguish this court's opinion in People v. Smith, 152 Ill. 2d 229 (1992). In that regard, the majority employs a suspiciously evolving distinction of Smith, which addressed reasonable expectations of privacy in similar circumstances but reached a different result. However, even if we were to assume that Smith is no longer good law after Jardines—as the majority suggests—it is to me inconceivable that the majority can say Smith is irrelevant—along with all the other cases cited by Justice Thomas in Burns—for purposes of applying the good-faith exception to the exclusionary rule. ¶ 55 First, I do not believe that the majority's analytical overlay of the Supreme Court's decision in Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018), adds anything to the majority's recycled analysis from Burns. Collins does not advance the majority's cause. Though I understand the majority's desire to impose some form of residential egalitarianism in this context, precedent simply does not support it—at least not the Supreme Court's property-based dispositions in Jardines and Collins. There are very real differences in the facts, the reasonable expectations of privacy, and the property interests involved. Collins is still a traditional curtilage case, like Jardines. In Collins, the police deviated from the public thoroughfare and went through the close of defendant's private property and onto his driveway, to search a motorcycle located in what was characterized as a "driveway enclosure," an area that the Supreme Court described as adjacent to the home, " ' "to which the activity of the home life extends." ' " Collins, 584 U.S. at ___, 138 S. Ct. at 1671 (quoting People v. Jardines, 569 U.S. 1, 7 (2013), quoting Oliver v. United States, 466 U.S. 170, 182 n.12 (1984)). ¶ 56 In reaching its result in this case, the majority alternately claims that "[t]he common-area hallway immediately outside of defendant's apartment door is curtilage" and "the threshold of defendant's apartment door constitutes ' "an area adjacent to the home and 'to which the activity of home life extends' " and so is properly considered curtilage.' " (Emphasis added.) Supra ¶¶ 25, 32 (quoting Collins, 584 U.S. at ___, 138 S. Ct. at 1671, quoting Jardines, 569 U.S. at 6-7, quoting Oliver, 466 U.S. at 182 n.12). The absurdity of the majority's claim is highlighted by the dissenting appellate justice in this case: 19 "No portion of the third-floor hallway is enclosed. Defendant was not using the area outside his doorway for any private purpose such as for a sitting or reception area for himself or his guests. Nothing other than the thickness of defendant's locked apartment door separated defendant's private area from the publicly-accessible hallway. Defendant did not position any item to cause the general public to detour around the threshold of his locked door. Lastly, and importantly, defendant took no steps to protect the exterior of his apartment door from the view or observations of people lawfully travelling back and forth throughout the unlocked apartment building." 2017 IL App (3d) 160457, ¶ 36 (Wright, J., dissenting). ¶ 57 The majority likens the common hallway of this unlocked apartment building to the private porch of Jardines and the private driveway of Collins, both of which were within the perimeter, or close, of the residential property those defendants actually occupied. This defendant had no such interest in the common hallway of the multistory apartment building in which he was one of many tenants. It was not his property. He did not own the hallway, or have an exclusive right of control, nor any semblance of habitation there. Certainly, his family life did not extend there. Would we envision family dinners in the hallway? Gardening? Recreation? Perhaps drinks with friends? Of course not. What aspects of family life are we talking about? Clearly, the hallway is not "an area adjacent to the home *** to which the activity of home life extends." When we employ the property-based approach of Jardines and Collins—as opposed to a privacy-based analysis—we have to live with the strictures of the former, we have to accept the limitations of the property right at issue. ¶ 58 The hallway is simply a publicly accessible means of ingress or egress for defendant, all the other residents, and anyone else who cares to come or go through 20 the building's unlocked doors. The owner of the building evinced no intent to prohibit anyone from entering. The exterior doors leading into the apartment building's common-area hallways were not locked, and there was no lock, passcard, entry system, or anything whatsoever on the closed exterior doors of the apartment building that would prevent any person off the street from entering into the common-area hallways of the building. Officer Genisio walked through those publicly accessible, common hallways. He was where he had a right to be. He never invaded defendant's living space, nor did he encroach upon property we would recognize as defendant's, owned or leased. In short, he did not violate defendant's "curtilage," the dimensions of which the majority would be hard-pressed to fully define. Is this "threshold-curtilage" a matter of inches in front of defendant's apartment door? Is that "an area adjacent to the home *** to which the activity of home life extends?" If more, how far does it extend? Do other residents traverse and violate defendant's curtilage when they pass his apartment door while going about their daily activities? Does this "curtilage" include the entirety of the third-floor hallway? Perhaps it encompasses all the hallways of the unlocked apartment building. Who knows? ¶ 59 If "[t]he common-area hallway immediately outside of [a] defendant's apartment door is curtilage," (emphasis added) as the majority at one point states, then the officers in Smith were clearly in it when they sought to overhear a conversation in that defendant's apartment. However, in that case, this court held "no fourth amendment 'search' can be said to have occurred because defendant did not have a reasonable expectation of privacy in his conversation." Smith, 152 Ill. 2d at 245. Among the factors this court found pertinent to its pronouncement on defendant's expectations of privacy, the court listed the following: (1) the area where the officers overheard defendant's conversation was a common area—and the court cited authority holding that expectations of privacy are diminished in the common areas of an apartment building; (2) "the area where the officers were standing when they overheard the conversation was unlocked"; (3) defendant's voice was raised; and (4) "the officers used no artificial means to enhance their 21 ability to hear defendant's conversation, nor did they enter an area where they had no legal right to be." (Emphases added.) Smith, 152 Ill. 2d at 246. ¶ 60 As I read Smith, the fact that the officers were in the common area of an "unlocked" apartment building mattered. The Burns majority also appeared to think that was a distinction supporting the decision in that case: "Contrary to the State's assertion, Smith did not hold that tenants have no expectation of privacy in common areas of locked apartment buildings. Rather, Smith concerned an individual's reasonable expectation of privacy in things overheard by the police while standing in a common area of an unlocked apartment building. Consequently, Smith does not support the State's position." (Emphases added.) Burns, 2016 IL 118973, ¶ 58. In its analysis, the Burns majority referred to the "locked" door of the apartment building multiple times. It was clearly an essential part of the disposition. Now, the majority's distinction of Smith appears to be evolving as the need arises, as can be seen in the majority's statement in this case: "Contrary to the State's assertion, Smith did not hold that tenants have no expectation of privacy in common areas of either locked or unlocked apartment buildings." (Emphasis added.) Supra ¶ 41. ¶ 61 This court's decision in Smith, considered in conjunction with the principles the Supreme Court espoused in Illinois v. Caballes, 543 U.S. 405 (2005), would appear to validate the officer's activities in this case. In Caballes, the Supreme Court stated: "Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment. Jacobsen, 466 U. S., at 123. We have held that any interest in possessing contraband cannot be deemed 'legitimate,' and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest.' Ibid. This is because the expectation 'that certain facts will not come to the attention of the authorities' is not the same as an interest *** in 'privacy that society is prepared to consider reasonable.' Id., at 122 (punctuation omitted). In United States v. Place, 462 U. S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as 'sui generis' because it 'discloses only the presence or absence of narcotics, a contraband item.' Id., at 707; [citation]." (Emphasis in original.) Caballes, 543 U.S. at 408-09. 22 While one might argue those statements were intended to apply only to traffic stops, the Court's need to distinguish its decision in Kyllo v. United States, 533 U.S. 27 (2001), which addressed, inter alia, the expectations of privacy in a residence, suggests otherwise. In Kyllo, the Court had held that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. In Caballes, the Court could have distinguished Kyllo, principally upon the different privacy interests recognized in automobiles and homes—however, that is not the "critical" distinction the Court cited: "Critical to that decision was the fact that the device was capable of detecting lawful activity—in that case, intimate details in a home, such as 'at what hour each night the lady of the house takes her daily sauna and bath.' Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Caballes, 543 U.S. at 409-10. The bottom line is this is not a curtilage case. Smith and Caballes provide the controlling authority. ¶ 62 However, for the sake of argument, let us suppose the officer did unwittingly violate this newly devised minicurtilage, wherever it might be. What about the good-faith exception to the exclusionary rule? If the officer did not believe the common hallway of an unlocked apartment building qualified as the "curtilage" of a specific apartment, then he would have no reason to believe that the Supreme Court's property-based decision in Jardines changed the settled authority of Smith and a number of federal decisions, which were based upon reasonable expectations of privacy and held that there was no such expectation in the common hallway of an unlocked apartment building. See Burns, 2016 IL 118973, ¶¶ 103, 113, 121, 125 (Thomas, J., dissenting, joined by Karmeier, J.) Those authorities, considered in conjunction with Caballes, establish that defendant had no reasonable expectation of privacy in the common hallway of an unlocked apartment building and he further had no expectation of privacy with respect to the contraband in his apartment. 23 ¶ 63 The appellate court's decision in Burns (People v. Burns, 2015 IL App (4th) 140006) could not trump this court's decision in Smith and the United States Supreme Court's decision in Caballes. Those cases provided the governing principles at the time the officer acted. And we should be fair in our appraisal of the officer's conduct. As this court recognized in People v. LeFlore, 2015 IL 116799, ¶ 24, "exclusion [of evidence] is invoked only where police conduct is both 'sufficiently deliberate' that deterrence is effective and 'sufficiently culpable' that deterrence outweighs the cost of suppression." Given the prevailing supreme court authority at the time the officer acted, his conduct does not qualify as "culpable." In the end, when the members of this court, and those of the appellate panel, cannot agree whether this area qualifies for protection as "curtilage" or warrants an expectation of privacy, can we expect police officers to appreciate such nuanced distinctions, so that they would recognize that Jardines changed the law in this context? We should only expect of them "good faith," not scholarly discernment. ¶ 64 For the foregoing reasons, I respectfully dissent. ¶ 65 JUSTICE THOMAS, dissenting: ¶ 66 The issue in this case is whether the police conducted an illegal search by using a drug-sniffing dog in the unlocked common-area hallway outside of defendant's apartment door. In People v. Burns, 2016 IL 118973, I concluded that the police's use of a drug-sniffing dog in the locked common-area hallway outside of the defendant's door was perfectly legal and did not violate the fourth amendment because (1) the concept of curtilage has no application to the common areas of multiple-unit structures and (2) there is no reasonable expectation of privacy in the common areas of an apartment building. Id. ¶ 103 (Thomas, J., dissenting, joined by Karmeier, J.). My reasons for reaching this conclusion are set forth fully in my Burns dissent, and I need not repeat them here. For present purposes, it is sufficient to say that, for the very same reasons I concluded that the use of a drug-sniffing dog in a locked common-area hallway raises no fourth amendment concerns, I likewise 24 conclude that the use of a drug-sniffing dog in an unlocked common-area hallway raises no fourth amendment concerns. Accordingly, I respectfully dissent. ¶ 67 CHIEF JUSTICE KARMEIER joins in this dissent.