Appeal from Circuit Court of Clark County No. 02CF12 Honorable Tracy W. Resch, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
Following a stipulated bench trial on August 12, 2002, the trial court found defendant, Lori A. Johns, guilty of possession of a controlled substance (less than 15 grams of a substance containing cocaine) (720 ILCS 570/402(c) (West 2000)). The court sentenced her to 24 months' probation. Defendant appeals, arguing that the trial court erred by denying her motion to suppress evidence. We reverse.
On April 30, 2002, defendant filed a motion to suppress evidence. Defendant referenced a judgment order for probation entered on May 14, 2001. The order stated "[d]efendant has been found guilty of the offenses of DRIVING UNDER THE INFLUENCE OF ALCOHOL [(DUI)] and DRIVING WHILE REVOKED [(DWR)], class A misdemeanors." The order provided that defendant shall "[s]ubmit to warrantless searches of [her] person, property, residence, motor vehicle and effects at the request of [her] probation officer or law enforcement authorities and consent to the use of anything seized as evidence in court proceedings." On January 23, 2002, law enforcement authorities conducted "a random proba-tion check" of defendant's residence. Defendant argued that "the search [was] beyond the scope authorized *** [and] there was no reasonable suspicion to conduct a search."
At hearing, the parties stipulated to the testimony offered at the preliminary hearing. On January 23, 2002, Marshall police officer Jeff Sanders conducted "a random probation check" of defendant's residence. Sanders testified that it was not "a direct order" but that the probation office had asked law enforcement authorities to "randomly check [probationers]." Defendant was not present in the home. Sanders testified that defendant's son "was there and gave us permission to go ahead and come in and conduct a search of the residence as part of her probation." Sanders believed the boy to be 16 or 17 years old. Sanders found three used pipes in a dresser drawer located in defendant's bedroom. The pipes were confiscated and later tested. A single pipe was found to contain less than 15 grams of a substance containing cocaine. As a result, the State charged defendant with possession of a controlled substance.
The trial court ruled that "the search falls squarely within the 'special needs' exception to the usual warrant and probable cause requirements." The court denied defendant's motion to suppress the evidence. On August 12, 2002, the court conducted a stipulated bench trial. The court found defendant guilty of possession of a controlled substance and sentenced her as stated. This appeal followed.
Defendant argues the trial court erred in denying her motion to suppress. Specifically, defendant argues "the search was not based upon suspicion or evidence of illegal activity." We accord deference to a trial court's factual findings and will reverse those findings only if they are against the manifest weight of the evidence; however, we review de novo the ultimate reasonableness of a warrantless search. People v. Sorenson, 196 Ill. 2d 425, 431, 752 N.E.2d 1078, 1083 (2001).
Initially, the State argues the trial court did not err "since the police had obtained consent to search from the defendant's son," and "the motion to suppress should be affirmed on this basis alone." Although the State did not make this argument in the trial court, the supreme court has held it "unfair" to find the State has waived an argument not made in the trial court when the trial court denies a defendant's motion to suppress and the defendant appeals. People v. Janis, 139 Ill. 2d 300, 319, 565 N.E.2d 633, 642 (1990).
We note the State's sole argument at hearing was in reference to United States v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497, 122 S. Ct. 587 (2001). The State "concede[d]" that the Supreme Court "ruled against our position." The State asked that the trial court "rebalance the interests," albeit noting the sole distinction between the cases: "Defendant in the Knights case was on probation for a drug offense, and the distinction here, this [d]efendant obviously is on probation for a DUI *** not much of a distinction."
"It is *** well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043-44 (1973). This consent may be obtained not only from the individual whose property is searched, but also from a third party who possesses common authority over the premises. People v. Bull, 185 Ill. 2d 179, 197, 705 N.E.2d 824, 833 (1998). Such authority is based on mutual use of the property by persons generally having joint access or control for most purposes. The burden of establishing common authority rests on the government. Bull, 185 Ill. 2d at 197, 705 N.E.2d at 833. In the present case, the State failed to establish that defen-dant's son possessed common authority over a dresser drawer located in his parents' bedroom. We do not accept, without evidence, that a child in his teens could give a valid consent to law enforcement authorities to conduct a search of a dresser drawer located in his parents' bedroom. See 3 W. LaFave, Search & Seizure §8.4(c), at 773 (3d ed. 1996).
We next address the search as a condition of probation and the fourth amendment. The fourth amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. The fourteenth amendment (U.S. Const., amend. XIV) makes the fourth amendment applicable to the states. Elkins v. United States, 364 U.S. 206, 213, 4 L. Ed. 2d 1669, 1675, 80 S. Ct. 1437, 1442 (1960). A search does not run afoul of the fourth amendment if it is "reasonable," which we "measure in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39, 136 L. Ed. 2d 347, 354, 117 S. Ct. 417, 421 (1996).
"The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Knights, 534 U.S. at 118-19, 151 L. Ed. 2d at 505, 122 S. Ct. at 591, quoting Wyoming v. Houghton, 526 U.S. 295, 300, 143 L. Ed. 2d 408, 414, 119 S. Ct. 1297, 1300 (1999).
Here, the State offered no evidence to establish reasonableness of the search, relying only on the fact that defendant was an individual subject to a probation order.
"A probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be 'reasonable.'" Griffin v. Wisconsin, 483 U.S. 868, 873, 97 L. Ed. 2d 709, 717, 107 S. Ct. 3164, 3168 (1987). Although probationers are subject to specific constraints on their privacy that would not be constitutional if applied to the public at large, their privacy interests are not eliminated entirely. Griffin, 483 U.S. at 874, 97 L. Ed. 2d at 718, 107 S. Ct. at 3169.
In Knights, the facts concerned a search of the home of a probationer subject to a probation search condition. In examining the totality of the circumstances, the Supreme Court found the probationer's privacy interest to be "significantly diminished" (Knights, 534 U.S. at 121, 151 L. Ed. 2d at 506-07, 122 S. Ct. at 593), but not extinguished. Similarly, we find defendant had a diminished, but not extinguished, expectation of privacy in her home.
Although the fourth amendment ordinarily requires the degree of probability embodied in the term "probable cause," a lesser degree satisfies the constitution when the balance of governmental and private interests makes such a standard reasonable. Knights, 534 U.S. at 121, 151 L. Ed. 2d at 506, 122 S. Ct. at 592. "The degree of individualized suspicion required of a search is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable." Knights, 534 U.S. at 121, 151 L. Ed. 2d at 506, 122 S. Ct. at 592. In Knights, the district court found, and Knights conceded, that the search was supported by reasonable suspicion. The Supreme Court held the warrantless search of Knights, supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the fourth amendment. Knights, 534 U.S. at 121, 151 L. Ed. 2d at 507, 122 S. Ct. at 593. In the present case, law enforcement authorities did not assert a search supported by "reasonable suspicion" but only a search authorized by a condition of probation.
Knights did not decide whether the probation condition so diminished, or completely eliminated, Knights' reasonable expectation of privacy that a search by law enforcement authorities without any individualized suspicion would have satisfied the reasonableness requirement of the fourth amendment. "The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion." Knights, 534 U.S. at 121 n.6, 151 L. Ed. 2d at 505 n.6, 122 S. Ct. at 592 n.6; but see United States v. Crawford, 323 F.3d 700, 722 (9th Cir. 2003) ("Because law enforcement officials conducted a search of Crawford's home without reasonable suspicion to believe that they would uncover evidence of criminal activity, we hold that the search violated the Fourth Amendment. The fact that Crawford signed a blanket 'Fourth Waiver' as a mandatory condition of his parole does not serve to waive the minimum constitutional protection of reasonable suspicion to which he and other parolees are entitled").
It is implicit in the Court's statements in Knights and Griffin that probation searches are limited by some reasonable and legally protectible privacy interest. See Knights, 534 U.S. at 121, 151 L. Ed. 2d at 506-07, 122 S. Ct. at 593 ("When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable"); Griffin, 483 U.S. at 875, 97 L. Ed. 2d at 718, 107 S. Ct. at 3169 ("Supervision *** is a 'special need' of the State ...