The opinion of the court was delivered by: Justice Garman
Defendant, Ronald Lampitok, was arrested and charged with five offenses based on evidence found in his motel room by three probation officers. The officers went to the motel to verify whether defendant's fiancée, Kitty Bircher, had violated her probation order. Upon their arrival, defendant informed the officers that Bircher was not present but that she had been staying there. Despite defendant's objection, the officers conducted a warrantless search of the room pursuant to a search condition of Bircher's probation order and seized several items as evidence. Defendant was later arrested and charged based on this evidence.
After making several factual findings, the circuit court of Coles allowed defendant's pretrial motion to quash arrest and suppress evidence. A divided appellate court affirmed. No. 4-01-0085 (unpublished order under Supreme Court Rule 23). We granted the State's petition for leave to appeal (177 Ill. 2d Rs. 315, 612(b)) to address whether a search of defendant's motel room in which a probationer subject to a search condition was staying was reasonable under the fourth amendment.
Because we are reviewing the circuit court's ruling on a pretrial motion, the record before us is limited. In July 2000, defendant and Bircher were engaged to be married and were living with Bircher's cousin, Bobby Craig, Bircher's daughter, and two other roommates in an apartment on Madison Street in Charleston. Bircher reported this apartment as her place of residence as required by her probation order.
Defendant and Bircher had been living in this apartment for approximately one month when Craig asked them to leave because the landlord was coming to inspect the apartment. Craig was listed on the lease, and the lease prohibited him from having roommates. At the motion hearing, Bircher testified that "he [Craig] asked us to leave for a couple of days so they could do that [the inspection] and then we were allowed to go back." Bircher also testified that she had clothes at this apartment, and her mailing address was in Charleston. She did not notify her probation officer about being at the motel because she "had not moved." She acknowledged that under her probation order, which she had signed, her residence could be searched at any time.
On July 12, 2000, the first night away from the Charleston apartment, Bircher stayed with her cousin, Lori, in Mattoon, and defendant stayed at the U.S. Grant Motel in Mattoon. Defendant registered for the motel room while Bircher stayed in the car; defendant paid for the room for the nights of July 12 and 13. Bircher did not have a key to the room. Bircher and her daughter stayed in the room with defendant the night of July 13, and Bircher brought clothing with her. Bircher obtained a Salvation Army voucher to pay for the motel room for the night of July 14. Bircher testified that they intended to return to the Charleston apartment on the morning of July 15.
Probation Officer Steve Kelly also testified at the hearing. Bircher's probation officer, Mitch Goodwin, had attempted a routine home visit at Bircher's Charleston apartment on the morning of July 14. Kelly testified that Goodwin told him that "he made contact with two relatives and they stated that she no longer lived there, she was staying with Mr. Lampitok at the U.S. Grant Motel in Mattoon." Kelly, Goodwin, and fellow probation officer Vicki Starwalt discussed the situation. The three officers decided to go to the motel primarily to verify whether Bircher violated her probation order by changing residences without prior notification and also to verify whether Bircher was in further violation by residing in the presence of weapons or drugs. Kelly had previous personal encounters with defendant during which he suspected that defendant had been under the influence of drugs. During these encounters, defendant acknowledged that Bircher was on probation. Kelly admitted that at that time they had no information that defendant was involved in any illegal activity.
The officers arrived at the motel around 1:15 p.m. Goodwin and Kelly stopped at the motel office to ask what room Bircher was staying in, and they were directed to room 14. Goodwin knocked repeatedly on the door; the officers could hear movement in the room. Eventually, defendant answered the door. Goodwin asked whether Bircher was there, and defendant responded that she was not. Kelly also testified that "Officer Goodwin asked him if Kitty [Bircher] was staying there with him and he said yes." After additional conversation not disclosed in the record, Kelly informed defendant that they were going to enter the room. Defendant refused and attempted to close the door. Because Kelly was in the doorway with his foot in the door jam, defendant was unable to close the door. The officers entered, and nothing illegal was in plain view. Bircher was in fact absent, but she had left her two-year-old daughter in defendant's care.
The officers did not have a warrant to search the motel room. As the officers began to search the room, defendant fled. Starwalt attended to the young girl. Kelly discovered a soft makeup bag containing a pistol and ammunition between the mattress and box springs of the bed. He also found a sword and a knife on the floor underneath this portion of the bed. Goodwin discovered a syringe and a plastic baggy with a white powder, later determined to be a controlled substance. Kelly speculated that Goodwin discovered this evidence in a duffel bag in the closet, but he was not certain because he was busy searching at the time.
Certain conditions of Bircher's probation order are relevant to this case:
"1. That the Defendant shall not violate any criminal statute of any jurisdiction.
6. That the Defendant shall keep her Probation Officer advised of her place of residence and employment at all times, advising the Probation Officer prior to any change of residence or employment.
8. That the Defendant shall not possess a firearm or other dangerous weapon.
11. That the Defendant shall submit to a search of her person, residence, or automobile at any time as directed by her Probation Officer to verify compliance with the conditions of this Probation Order."
Bircher's two-year probation period began April 6, 1999, so she clearly was on probation at the time of the July 14, 2000, search.
On the basis of the evidence seized from the motel room, defendant was arrested and charged with unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1 (West 1998)), unlawful possession of firearm ammunition by a felon (720 ILCS 5/24-1.1 (West 1998)), unlawful possession of a hypodermic syringe (720 ILCS 635/1 (West 1998)), unlawful possession of a controlled substance (720 ILCS 570/402(d) (West 1998)), and armed violence (720 ILCS 5/33A-2 (West 1998)).
The circuit court made numerous findings when allowing defendant's motion to quash arrest and suppress evidence. The court stated that "[a] warrantless search was conducted without defendant's consent. The Probationer, Kitty Bircher, was not present. The defendant has standing to object to same. He was the registered tenant of the room searched with an expectation of privacy." The court found that paragraph 11 of Bircher's probation order was not authorized by section 5-6-3 of the Unified Code of Corrections (Code) (730 ILCS 5/5-6-3 (West 2000)). The court further condemned the search given the lack of applicable "regulations, guidelines, standards or procedures" comparable to those present in Griffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987), and the lack of "reasonable grounds to believe that contraband was present or that the Probationer or the defendant had committed a criminal offense." The court also found that the motel room was not Bircher's residence.
A divided appellate court affirmed. No. 4-01-0085 (unpublished order under Supreme Court Rule 23). The appellate court agreed with the circuit court that defendant was the registered tenant of the room and that he had an expectation of privacy in the room. The order did not review the finding that the room was not Bircher's residence because it did not consider that fact to be dispositive in its analysis. The order noted that although section 5-6-3(b) of the Code does not list submission to a probation search as a possible condition, it "may be" permissible under the section's general authorization of "other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant." 730 ILCS 5/5-6-3(b) (West 1998).
However, Bircher's probation order required her to "submit to a search *** as directed by her Probation Officer." Because she was not present at the time of the search, she could not be directed by her probation officer to submit to the search. Thus, the search was not authorized by the probation order. In addition, defendant was not a probationer, the officers had no information that defendant was involved in criminal activity, and he did not consent to the search, making the search constitutionally unreasonable as to him.
The special concurrence noted that the relevant issue was whether the officers reasonably believed that the motel room was Bircher's residence rather than whether it was her actual residence. The record contained sufficient facts to find that the officers reasonably believed the room was Bircher's residence so that she was in violation of her requirement to notify them of a change in residence. The concurrence disagreed with the majority order's finding that defendant did not have a reduced expectation of privacy because he cohabited with a probationer. However, the concurrence agreed that the search did not comply with the probation order's specification that it be "directed by her Probation Officer," which required either Bircher's presence or notice of the search. Because the search was also warrantless, the evidence was properly suppressed on this basis.
The dissent agreed with the special concurrence that the officers had a reasonable belief that the motel room was Bircher's residence and that defendant had a reduced expectation of privacy. However, the dissent did not agree that the probation order required Bircher's presence at the search because the probationer could always evade probation conditions by not answering the door or having another falsely claim she was gone.
The complexity of this issue and the inclusion of three separate appellate opinions in this order create an unusual disposition. The concurring and dissenting justices agree on the resolution of some issues so that they become the holding of the appellate court even though they are not found in the principal order. See Marks v. United States, 430 U.S. 188, 194 n.8, 51 L. Ed. 2d 260, 266 n.7, 97 S. Ct. 990, 994 n.8 (1977). Specifically, these two justices agree that the officers had a reasonable belief that the motel room was Bircher's residence and that defendant had a reduced expectation of privacy. Two justices found that the language of Bircher's probation order required her to be present during a search so that she could initially submit to that search directed by her probation officer, the basis on which the court affirmed suppression of the evidence. Thus, although fourth amendment principles are discussed, the appellate court's affirmance of the suppression of the evidence is based on noncompliance with the terms of the probation order.
In reviewing this appellate decision, we examine whether the search was unconstitutional so that the evidence it uncovered was properly suppressed. This fourth amendment analysis has several components: (A) a discussion of relevant case law, demonstrating that the search must be reasonable at its inception and in its scope under the totality of the circumstances; (B) a determination of what level of individualized suspicion is required for the probation search to be justified at its inception; (C) an evaluation of what level of individualized suspicion the officers had that Bircher was in violation of her probation order; (D) an examination of whether the scope of the search exceeded the initial justification for the search; ...