2015 IL App (2d) 131319 No. 2-13-1319 Opinion filed June 11, 2015 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 10-CF-2325 ) JAIME L. VALLE, ) Honorable ) James C. Hallock, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Birkett concurred in the judgment and opinion.

OPINION

¶1 After a bench trial, defendant, Jaime L. Valle, was convicted of unlawful possession of cocaine with the intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2010)) and sentenced to six years’ imprisonment. On appeal, he contends that the trial court erred in denying his motion to

quash his arrest and suppress evidence. Defendant argues that the police exceeded the scope of the warrant that authorized the search leading to the evidence of his offense. We affirm.

¶2 Defendant was charged with unlawful possession of cocaine with intent to deliver and unlawful possession of cocaine (720 ILCS 570/402(a)(2)(A) (West 2010)). His motion to quash his arrest and suppress evidence alleged that, on March 23, 2010, while executing a search warrant, police seized evidence from a detached garage at 216 South East Avenue in Aurora.

2015 IL App (2d) 131319

Defendant and his mother, Celia Valle, lived in the house at that address. The motion contended that the search of the garage exceeded the scope of the warrant, which was limited to the house.

¶3 The warrant, issued by Judge Leonard Wojtecki, read:

“On this day, March [23], 2010, Complainant [Officer Steven Stemmet] has

signed and sworn to a complaint for search warrant before me. Upon examination of the complaint, I find that it states facts sufficient to show probable cause and I therefore command that the following person(s), place(s), or thing(s):

* The person of Jaime Luis Valle Male Hispanic Date of Birth 06/08/75, approximately 6’04” 315 lbs. black hair brown eyes.

* 216 S. East Av. Aurora, Kane County, IL 60505 described as a two story split level single family residence that is light blue in color with white trim. The front door to

the residence is white in color with windows and faces west. There is white screen door [sic] with windows. There are several concrete steps, with white wrought iron railings, leading to the front door. The numerals ‘216’ appear in black to the right of the front

door. The residence has two driveways. One is in the northwest section of the yard, and the other runs along the east (rear) of the residence. The east drive leads to a large detached garage that is light blue in color with a white garage door. There is tall white

fence [sic] in the yard. The structure is located on the northeast corner of S. East Av. and North Av. in Aurora, Kane County, Illinois; be searched and the following instruments, articles, or things which have been used in the commission of, or which constitute

evidence of the offense of Unlawful Delivery of Controlled Substance in violation of 720ILCS570/401 [sic] be seized therefrom.

(1) any and all substances containing cocaine;

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(2) any and all documents and United States Currency relating to the purchase, sale, or distribution of cocaine, or in the proximity of any material possibly containing cocaine;

(3) any and all paraphernalia including scales, relating to the usage, sale, or distribution of cocaine;

(4) any and all electronic devices, computers, and computer equipment, related to the usage, sale, or distribution of cocaine;

(5) any and all evidence of drug co-conspirators, including photographs, ledgers, [and] records[;]

(6) indicia of residency, ownership, or possession of the above address.”

¶4 The complaint, signed by Stemmet, stated that he had probable cause to believe, based

upon the facts provided in his affidavit, that the evidence to be seized was “now located in the residence, or on the person set forth above.” In his affidavit, Stemmet stated in pertinent part as follows. Several controlled buys of cocaine, using a confidential informant, had taken place at

216 South East Avenue in Aurora, from a man who matched defendant’s photograph. Police

records revealed that defendant resided at 216 South East. On or about March 16, 2010, Stemmet observed a man who resembled defendant’s description backing his SUV out of the east driveway; Stemmet traced the vehicle’s registration to Celia Valle, who also resided at 216 South

East. Stemmet believed that “a search of 216 S. East Av., Aurora *** and/or on the person of [defendant] [would] result in the seizure of cocaine.”

¶5 At a hearing on the motion, the parties stipulated that, on March 23, 2010, defendant resided at 216 South East; that the property at 216 South East included a detached garage used by defendant; and that officers discovered incriminating evidence in the garage.

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¶6 In argument, defendant contended that the search of the detached garage exceeded the scope of the warrant. Citing People v. Freeman, 121 Ill. App. 3d 1023 (1984), he argued that the warrant had specified that the search was limited to the “single[-]family residence” specifically identified in the first line of the applicable paragraph. In response, the State, citing United States

v. Bennett, 170 F.3d 632 (6th Cir. 1999), noted that the warrant explicitly mentioned the detached garage, which had the same address as the house. Further, the garage was within the curtilage of the house, validating the search. Defendant replied that Bennett, in which the court construed a warrant authorizing the search of the defendant’s “premises” as permitting the search of a shop building located on the same property as his house (id. at 638), was distinguishable because “premises” has a broader meaning than the terminology used in the warrant here.

¶7 The trial court found Bennett persuasive and ruled that the search of the garage had been proper. After defendant was convicted and sentenced as noted, he timely appealed. ^[1]

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¶8 On appeal, defendant contends that the trial court erred in holding that the search warrant authorized the search of the detached garage. He argues that the warrant’s plain language limited any search to his person and the “two[-]story split[-]level single[-]family residence.” The State responds that, because the detached garage was within the house’s curtilage, the police could have searched it even had the warrant not mentioned the garage at all. Further, the warrant’s mention of the “large detached garage” brought that building within the warrant’s scope.

¶9 Because the trial court’s ruling turned solely on the construction of the search warrant, our review is de novo. See People v. Close, 238 Ill. 2d 497, 504 (2010); People v. McCarty, 223

Ill. 2d 109, 148 (2006). A warrant should receive a commonsense and realistic interpretation.

United States v. Ventresca, 380 U.S. 102, 108 (1965); People v. Bryant, 389 Ill. App. 3d 500, 514-15 (2009).

¶ 10 In the trial court—though, strangely, not on appeal—defendant relied on Freeman, a

1984 opinion of this court. Although Freeman does appear to support his position, the opinion is legally unsound.

¶ 11 In Freeman, the police obtained a warrant to search a house at a given address. The requesting officer’s affidavit stated that he knew that the defendant resided “ ‘at the premises

described as a two-story wood frame single family dwelling’ ” located at the address and that the officer had been present personally “ ‘at the premises described *** above’ ” when cannabis had been present. Freeman, 121 Ill. App. 3d at 1026. The affidavit did not mention any other buildings. The opinion does not quote any part of the search warrant but describes it only as “a warrant to search a house” at the given address. Id. at 1024. The police searched the house.

One officer then exited, approached a garage 30 or 40 feet from the house, looked in through the that denial.

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window, and obtained the keys to the garage from the defendant’s wife, under a threat of breaking down the garage door if needed. Inside, the officers seized cannabis. Id. at 1025-26.

¶ 12 The trial court denied the defendant’s motion to suppress. As pertinent here, the defendant argued on appeal that the garage was outside the scope of the warrant. Id. at 1031.

This court agreed, reasoning, “[t]he warrant clearly did not include the garage, and the cannabis was not within the plain view of the officer from a place where he had a right to be.” Id. We noted that the garage had been 30 to 40 feet away from the house and that the evidence showed that the defendant had reasonably expected that its contents would remain private. Id.

¶ 13 However, the problem with Freeman is that, even though the warrant expressly included only the defendant’s residence, the garage was within the curtilage of the defendant’s residence.

Thus, per the settled law that we discuss below, the warrant authorized the search of the defendant’s garage. For the same reason, the warrant here authorized the search of defendant’s garage. ^[2]

¶ 14 Under Illinois law, “[t]he curtilage, that is, the land immediately surrounding and associated with the home, has been considered part of the home itself for fourth amendment purposes.” People v. McNeal, 175 Ill. 2d 335, 344 (1997). Thus, “[t]he government cannot

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2015 IL App (2d) 131319 search a home and its curtilage absent a warrant or some exception to the warrant requirement.”

People v. Pitman, 211 Ill. 2d 502, 518 (2004); see also People v. Accardi, 284 Ill. App. 3d 31, 34

(1996). Necessarily, if the curtilage is considered part of the home for purposes of the fourth amendment’s protection against warrantless searches, then the curtilage must be considered part of the home for purposes of a warrant to search that home. In other words, a warrant to search the home legitimizes the search of those areas considered under the fourth amendment to be part of that home.

¶ 15 This truism is confirmed by case law from other jurisdictions. In Bennett, on which the trial court relied, the warrant authorized a search of “the premises known and numbered as[ ] 792

Goshen-Church Road” in Bowling Green, Kentucky. Bennett, 170 F.3d at 637. It continued that the premises were “more particularly described” as follows:

“Single story frame home, yellow siding, reddish shutters. The house is approximately a quarter mile off Porter Pike on the right side of the road.

There is a detached shop building, with overhead or sliding doors on both ends.

Same color as the home.” Id. at 637-38.

¶ 16 In executing the warrant, the police searched the residence and the shop building, which

were approximately 60 to 100 feet apart. Id. at 638. The court of appeals affirmed the defendant’s conviction of several drug offenses, holding in part that the warrant’s phraseology was “certainly broad enough to include a shop building located in the curtilage of the property

*** at most, 100 feet away from the residence.” Id. at 639. The two buildings were, “for all

practical purposes, one single location because the outbuilding [was] within the curtilage of the ‘premises’ for which the search warrant was issued.” Id.

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¶ 17 Bennett relied in part on Fine v. United States, 207 F.2d 324 (6th Cir. 1953). Bennett, 170 F.3d at 639. Fine held that a warrant authorizing the search of “ ‘the premises known as the Harve Fine residence and being a one story white frame dwelling’ ” (Fine, 207 F.2d at 324) also authorized searching a shed located in a yard 20 feet behind the house (id. at 325). The court reasoned that, although the warrant did not explicitly mention the shed, the phraseology just quoted was “broader than a mere description of the house and certainly include[d] the curtilage.”

Id.

¶ 18 Here, defendant concedes that the detached garage was within the curtilage of the house at 216 South East. However, he asserts that Bennett is distinguishable because there the warrant used the term “premises,” a term of art with a broad meaning, whereas here the warrant referred in “boiler plate” to only “place(s).” We disagree with defendant that this difference is crucial.

Although the use of the term “premises” validates the search of an outbuilding within the curtilage of a residence even if the warrant itself does not mention the outbuilding, the absence of the “magic word” “premises” does not bar the search under similar circumstances.

¶ 19 Preliminarily, we note that the detached garage was within the curtilage of the house. “In determining whether a particular area falls within a home’s curtilage, a court asks whether the area harbors the intimate activities commonly associated with the sanctity of a person’s home and the privacies of life.” Pitman, 211 Ill. 2d at 516. “The extent of the curtilage is determined by factors ‘that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.’ ” Id. (quoting United States v. Dunn, 480 U.S. 294, 300

(1987)). “These factors include: (1) the proximity of the area claimed to be the home’s curtilage;

(2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from

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definition includes “ ‘those outbuildings which are directly and intimately connected with the habitation and in proximity therein and the land or grounds surrounding the dwelling which are necessary and convenient and habitually used for family purposes and carrying on domestic employment.’ ” People v. Jones, 119 Ill. App. 3d 615, 621 (1983) (quoting Black’s Law

Dictionary 346 (5th ed. 1979)).

¶ 20 Here, according to defendant’s testimony at trial, 3 the garage was within 75 to 100 feet of the house, about the same distance as separated the house and the shop in Bennett. It is undisputed that the garage was within the same enclosure as the house and shared its address.

Defendant testified that he kept vehicles and some personal items in the garage and that the garage required a pass code for entry. Thus, we would reject any contention that the detached garage was outside the curtilage of the house.

¶ 21 Defendant cites United States v. Longie, 370 F. Supp. 2d 941 (D.N.D. 2005), in which the federal district court did hold that a building not specifically named in the search warrant was not part of the curtilage of the residence that the warrant authorized law enforcement officers to search. Longie is distinguishable. It is also questionable as a statement of the governing law.

¶ 22 In Longie, the warrant authorized the search of a named residence on a Sioux Indian

Reservation, for evidence of an alleged assault committed inside the house. The warrant did not

mention a dilapidated shed that was approximately 60 yards west of the residence. The investigative report on the search of the house and shed described the shed as “ ‘abandoned,’ ”

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2015 IL App (2d) 131319 and, according to one of the residents of the house, the shed belonged to her grandmother, who resided at an unknown location (not the house). Id. at 943.

¶ 23 The district court held that the search of the shed had exceeded the scope of the warrant.

The court noted that the warrant had referenced only the house and had not used either the term

“premises” or the term “property”; had it done so, it would likely have authorized the search of any buildings located on the premises. Id. at 944. Further, the court held, the shed had not been within the curtilage of the house, as it did not pass the four-factor test: it was run down and no longer had doors or windows, it was not fenced in or protected, and there was no evidence that the occupants of the residence had been concerned about trespassers or people who might look into the shed. Id. at 945. Although the case presented a “close issue,” the court concluded that the warrant had not authorized the search of the shed. Id.

¶ 24 Aside from being the opinion of one judge at the trial court level, Longie is easily

distinguishable. Here, there was undisputed evidence, which we have summarized, that the detached garage “was used for activities and privacies of life which would intimately tie [it] to the house and make it part of the curtilage.” Id. at 942. Unlike the shed in Longie, the detached

garage in this case (1) was owned (or at least possessed) by the owner (or possessor) of the house; (2) was regularly used by the residents of the house, including for such basic purposes as

storing vehicles and driving them out of and into the garage; (3) was protected by a pass code or key; and (4) was located much closer to the residence at issue than the shed in Longie had been.

In short, Longie’s discussion of the curtilage issue does not help defendant. If anything, the fact

- 10 - 2015 IL App (2d) 131319 that the trial court described the issue as a close one, despite all of the foregoing, strongly suggests that Longie indirectly supports the State in this case. ^[4] ¶ 25 We return to defendant’s attempt to distinguish Bennett. He maintains that Bennett differs from this case because the warrant there used the term “premises,” which, he essentially concedes, has been given a broad construction that would include the detached garage here. ¶ 26 We agree with defendant (and the State) that courts have repeatedly and routinely held that a warrant that authorizes the search of “premises” at a given residential address allows the search of detached garages, sheds, and other outbuildings even if these separate structures are not mentioned at all in the warrant. See, e.g., People v. Taylor, 205 Ill. App. 3d 446, 447-48 (1990) (warrant allowing search of “ ‘premises’ ” “was not limited to defendant’s home or residence” but extended to detached garage); United States v. Earls, 42 F.3d 1321, 1326-27 (10th Cir. 1994) (warrant to search premises allowed search of outbuildings within curtilage); United States v. Griffin, 827 F.2d 1108, 1114-15 (7th Cir. 1987) (warrant allowing search of “ ‘premises’ ” but specifically mentioning only house and detached garage allowed search of yard and toolshed); United States v. Bonner, 808 F.2d 864, 868 (1st Cir. 1986) (general rule); United States v. Moore, 743 F.2d 254, 255-56 (5th Cir. 1984) (warrant allowing search of “ ‘premises’ ” described as “ ‘certain building, house or place’ ” also allowed search of garage 35 to 40 feet away on same property); United States v. Williams, 687 F.2d 290, 293 (9th Cir. 1982) (warrant