Appeal from the Circuit Court of Lake County. No. 98--CF--2427 Honorable Barbara C. Gilleran Johnson Judge, Presiding. Appeal from the Circuit Court of Lake County. No. 98--CF--2424 Honorable Barbara C. Gilleran Johnson, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
While executing a search warrant, Lake County police officers discovered evidence of cocaine trafficking in the home of defendants, Dennis and Bryan Burmeister. Bryan was charged with unlawful possession of less than 15 grams of a controlled substance (720 ILCS 570/402(c) (West 1998)), and Dennis was charged with unlawful possession of between 400 and 900 grams of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(C) (West 1998)) and unlawful possession of between 400 and 900 grams of a controlled substance (720 ILCS 570/402(a)(2)(C) (West 1998)). After concluding that there was no probable cause to issue the warrant, the trial court granted defendants' motion to quash the arrests and suppress evidence. The State appeals, arguing that the mere presence of curbside contraband creates probable cause to search a residence. We consolidate the appeals, and we affirm.
Before the police searched defendants' home, Lake County agent David Walsh filed a complaint for a search warrant pursuant to section 108--3(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/108-- 3(a) (West 1998)). In the complaint, Walsh named Bryan Burmeister and "2812 N. Elmwood, Waukegan" as the targets of the proposed search. Walsh did not allege that Bryan had any connection to the residence. Furthermore, Walsh mistakenly noted that the home is on the east side of the street when, in fact, it sits on the west side. A residence on the east side of the street, 2821 N. Elmwood, closely resembles the Burmeister residence.
Walsh stated that he had probable cause to believe that evidence of cocaine trafficking could be found in defendants' home. Walsh's suspicions were supported by tips from "anonymous sources" and an investigation by unnamed police officers. Garbage in defendants' neighborhood is collected weekly. On three consecutive trash days, the officers collected several black plastic garbage bags from the curb in front of the residence. The first search disclosed one 4½-inch straw and "plastic baggies" containing a white powdery substance that field tested positive for cocaine. The second search disclosed "two clear plastic bags with the corners missing that had a white powdery residue which field tested for the presence of cocaine and indices." The third search disclosed one rolled-up tissue with residue that field tested positive for cocaine. Agent Walsh did not allege that he had any personal knowledge of the trash searches. Walsh applied for a warrant two days after the third search. After reviewing the complaint, Judge John Radosevich issued a search warrant for defendants' home. No evidence suggests that Walsh participated in the search of the residence.
The State offered no evidence at the hearing on defendants' motion to quash the arrests and suppress evidence. However, each defendant submitted an affidavit stating that he never used black trash bags to deposit garbage because the use of the bags was prohibited by the trash collection rules; defendants used only a large blue bin to deposit trash. Defendants introduced photographs of their home, adjacent homes, and the trash bin they used. The trial court granted defendants' motion, concluding that there was no probable cause to search defendants' home because the warrant application failed to establish a nexus between the curbside contraband and the residence.
On appeal, the State argues that the trial court erroneously suppressed the evidence discovered during the residential search because "common experience" tells us that an item found in curbside trash originates from the nearest residence. We use a two-step analysis when reviewing a trial court's decision to suppress evidence. First, we do not disturb the court's findings of fact unless they are clearly erroneous or against the manifest weight of the evidence. People v. Mabry, 304 Ill. App. 3d 61, 64 (1999). We then review de novo the court's decision to suppress the evidence. Mabry, 304 Ill. App. 3d at 64.
The trial court examined defendants' affidavits and the photographs they introduced. In light of defendants' unrebutted evidence, the court determined that the warrant application was defective. The trial court's finding that defendants did not use the black trash bags is not against the manifest weight of the evidence.
We next review de novo the court's decision to suppress the evidence and quash the arrests for lack of probable cause. A judge may issue a search warrant for the seizure of evidence of criminality if the officer submits a complaint "which states facts sufficient to show probable cause and which particularly describes the place or person, or both, to be searched and the things to be seized." 725 ILCS 5/108--3(a) (West 1998). We conclude that agent Walsh's complaint neither stated facts establishing probable cause nor particularly described the premises to be searched.
The constitutional protection against unreasonable governmental searches and seizures extends only to individuals who have a reasonable expectation of privacy in the place searched or the property seized. People v. Pacheco, 281 Ill. App. 3d 179, 183 (1996). By placing a trash container on the curb for collection, a defendant terminates any possessory or ownership interest in the contents. This abandonment of the trash ends the defendant's privacy expectation in it, and the fourth amendment protection against unreasonable searches and seizures does not apply. See Pacheco, 281 Ill. App. 3d at 183-84.
When the presence of the police is lawful and property is discarded in a public place where the defendant can have no reasonable expectation of privacy in the abandoned property, no issue of an unlawful search is presented, and probable cause is unnecessary to search or seize it. Pacheco, 281 Ill. App. 3d at 184. Thus, the police properly conducted a warrantless search of defendants' trash. However, they could use the evidence discovered to obtain a search warrant only if the warrant application established probable cause that the curbside evidence came from the residence to be searched. See 725 ILCS 5/108--3(a) (West 1998).
Although the officers' search of the trash was permissible, Walsh's application did not allege facts creating probable cause to search defendants' home. On appeal, the State merely argues that "common experience teaches that garbage located in front of a particular house is the refuse of that home." We disagree. When a resident terminates his privacy interest in his trash by placing it on the curb for collection, anyone may rummage through it and deposit incriminating items.
In concluding that a homeowner has no fourth amendment protection in curbside trash, the United States Court of Appeals for the Seventh Circuit has noted that trash is readily accessible to animals, children, scavengers, and snoops. United States v. Redmon, 138 F.3d 1109, 1113 (7th Cir. 1998). Trash is placed at the curb for the express purpose of conveying it to a third party, the trash collector, who might sort through it himself or allow others to do so. Redmon, 138 F.3d at 1113. The police may search curbside trash without a warrant because the ...