Appeal from the Circuit Court of Kane County, No. 09-CF-1251 Honorable Allen M. Anderson, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice McLaren concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, Keith W. LeFlore, was found guilty of aggravated robbery (720 ILCS 5/18-5(a) (West 2008)), robbery (720 ILCS 5/18-1(a) (West 2008)), and burglary (720 ILCS 5/19-1(a) (West 2008)). The trial court entered judgment on the aggravated robbery charge and sentenced defendant to 20 years in prison. Defendant now appeals from his conviction, arguing that (1) the trial court failed to properly admonish him under Illinois Supreme Court Rule 401(a) (eff. July 1, 1984); and (2) the trial court erred in denying his motion to quash his arrest and suppress evidence. We reverse and remand for a new trial.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged on April 26, 2009, in connection with the April 24 robbery of a Mobil gas station in Aurora. The public defender was assigned to represent him at his initial appearance in bond court. When defendant was arraigned on May 21, the trial court admonished him that the first count, charging aggravated robbery, "is a Class 1 felony. A Class 1 felony is a one [sic], or four to 15-year possible sentence [in the] Department of Corrections." Further, after conferring with the State, the trial court informed defendant that, because of his "past record, " it was a nonprobationable offense. The court admonished defendant about the robbery and burglary charges, including the facts that they might be nonprobationable and "extended term eligible" such that the normal sentencing range of 3 to 7 years could be extended to 3 to 14 years, again based on his past record.
¶ 4 On July 8, 2009, defendant filed a motion to quash his arrest and suppress evidence. Defendant's motion argued that the Aurora police department covertly placed a GPS tracking device on a vehicle regularly driven by defendant and used the GPS device to monitor the vehicle's movements. The motion argued that "it was solely through information received from the GPS tracking device" that defendant became a suspect in the robbery, and because the officers did not have a warrant, placing the GPS device on the vehicle constituted an unlawful search under the United States and Illinois constitutions.
¶ 5 On July 22, 2009, the trial court conducted a hearing on defendant's motion. Defendant called Officer Jeremy Shufelt, a police officer with the Aurora police department, as a witness. Shufelt testified that, in April 2009, he received an anonymous tip from the Aurora Crime Stoppers that defendant "was possibly" committing burglaries and that the tipster had observed defendant bringing items into his apartment complex. Shufelt testified that, after checking through various records systems, he discovered that defendant was on parole at the time and that his listed parole address was an apartment in Aurora. Shufelt testified that he was able "to connect" defendant to a red Kia Spectra that was registered to Stephanie Powell, who lived at the same address as defendant.
¶ 6 Shufelt further testified that he, along with other members of the Aurora police department, decided to place a GPS tracking device on the vehicle. Shufelt testified that, a few days later, another police officer dropped him off about a block and a half from defendant's apartment at approximately 3:50 a.m. Shufelt placed the GPS device on the vehicle, which was parked in a parking lot that was accessible to the public. Shufelt testified that the GPS device transmitted a signal to a satellite that sent a signal to a server, allowing the GPS's location to be read on a computer. Further, the device could transmit signals as frequently as every 15 seconds; the maximum length of time between signals was 15 minutes. Shufelt testified that the officers also set up a geofence, which was "like an imaginary fence, " for the area surrounding defendant's apartment. Shufelt testified that anytime the GPS tracker left the geofenced area, he would receive notice on his cell phone.
¶ 7 Shufelt testified that, "relatively shortly" after placing the GPS tracker on Powell's vehicle, he received information that a gas station in Aurora had been robbed at approximately 4:40 a.m. Shufelt testified that he checked the GPS and noticed that Powell's vehicle had left the geofenced area at approximately 4:04 a.m., became stationary a few minutes later in the vicinity of the gas station, and reentered the geofenced area at approximately 4:42 a.m. Shufelt testified that, based on this information, defendant became a suspect. Shufelt testified that he did not obtain a warrant to place the GPS device on Powell's vehicle. During cross-examination, Shufelt admitted that Powell had indicated to him that defendant would sometimes drive her car and that she would also give him rides if requested.
¶ 8 The trial court denied defendant's motion to suppress, finding that using the GPS device did not constitute a search under the fourth amendment to the United States Constitution or under the Illinois Constitution. The trial court concluded that defendant "had no expectation of privacy as to where the Kia was or where it went or to, where it went on the public street or to a publically accessible location." The trial court further concluded that, "even if this was a search, " defendant did not have standing to challenge the police use of the GPS device on the vehicle.
¶ 9 On December 2, 2009, defendant informed the trial court that he wished to discharge his attorney and proceed pro se. The following colloquy then took place:
"THE COURT: Okay. Now, you know what you are charged with in this case.
THE DEFENDANT: Yes, aggravated robbery I believe it is.
THE COURT: Okay. And I think we've gone over the minimum and maximum sentence. You recall what that is?
THE DEFENDANT: Um, I can't remember. I think the minimum was 4—4 years and the maximum was 15, something like that.
THE COURT: That is correct.
THE DEFENDANT: 4 to 15.
THE COURT: Was the State claiming any nonprobationable status?
MR. PARTIDA [assistant State's Attorney]: Only on the—oh, yes, on all—nonprobationable status as to all counts.
THE COURT: Okay. And enhanced penalty?
MR. PARTIDA: In regard to enhanced penalties, only claiming them on the Class 2s. I'm trying to remember which counts those are.
THE COURT: Counts 2, 3 are the class 2s.
MR. PARTIDA: Just on those two.
THE COURT: So the aggravated robbery was the 4 to 15, Mr. LeFlore.
THE DEFENDANT: Yes. The other was ...
THE COURT: Two years mandatory supervised release, fines of up to 25, 000, nonprobationable. The robbery and the burglary, Counts 2 and 3—
THE DEFENDANT: Class 2s.
THE COURT: —are 3 to 7 years Department of Corrections, 2 years mandatory supervised release, fines of up to 25, 000. Also, the State has elected—has alleged that by reason of your past record or history that you may be extended-term eligible which means if convicted and the background proof shows up as the State says it is in the proof, then that could become instead of 3 to 7, it could be 3 to 14 years Department of Corrections with a nonprobationable category on both of those as well.
I want to make sure you understand that you do have the right to an attorney, and we have covered that because we have appointed the public defender so you are aware of that, right?
THE DEFENDANT: Yes."
The court had extensive further discussion with defendant and continued the case for a week for defendant to think about his request. On December 9, the trial court discharged the public defender at defendant's request. The case proceeded to a jury trial on January 4, 2010, after which defendant was found guilty of all counts.
¶ 10 At the sentencing hearing, the State submitted certified copies of convictions such that defendant would be subject to mandatory Class X sentencing (6 to 30 years in prison) (see 730 ILCS 5/5-4.5-25 (West 2008)) on the aggravated robbery charge, pursuant to section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b) (West 2010) (eff. July 1, 2009) (formerly 730 ILCS 5/5-5-3(c)(8) (West 2008))). The trial court ultimately sentenced defendant to 20 years in the Department of Corrections on the aggravated robbery charge. Defendant timely appealed.
¶ 11 II. DISCUSSION
¶ 12 A. Motion to Quash and Suppress
¶ 13 We first address defendant's contention that tracking his movements by placing a GPS device on Powell's car violated defendant's constitutional right to be free from unreasonable searches and seizures. While the question of whether the government's placing of a GPS device on a vehicle to monitor the vehicle's movements is a search within the meaning of the fourth amendment has recently been answered in the affirmative by the United States Supreme Court in United States v. Jones, 565 U.S. __, __, 132 S.Ct. 945, 949 (2012), the question in this case—whether a defendant may claim the fourth amendment's protections for such a search conducted while the defendant is borrowing someone else's car—remains unsettled.
¶ 14 The fourth amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures; this protection applies to the states through the due process clause of the fourteenth amendment. People v. Wilson, 228 Ill.2d 35, 40 (2008). In general, the fourth amendment requires the government to possess a warrant supported by probable cause for a search to be considered reasonable. Id. However, to claim the fourth amendment's protections, a person must have a legitimate expectation of privacy in the place searched. People v. Johnson, 237 Ill.2d 81, 90 (2010). Such an expectation of privacy is defined to be one "that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized or permitted by society." (Internal quotation marks omitted.) Minnesota v. Carter, 525 U.S. 83, 88 (1998). The person challenging a search bears the burden of establishing that he had a legitimate expectation of privacy in the searched property. Johnson, 237 Ill.2d at 90. Factors to be considered in determining whether a legitimate expectation of privacy exists include the individual's: (1) ownership or possessory interest in the property; (2) prior use of the property; (3) ability to control or exclude others' use of the property; and (4) subjective expectation of privacy. Johnson, 237 Ill.2d at 90. In reviewing a decision on a motion to quash and suppress, we may reverse the trial court's findings of historical fact only if they are against the manifest weight of the evidence. People v. Humphrey, 361 Ill.App.3d 947, 949 (2005). However, we review de novo the trial court's ultimate conclusion. Id.
¶ 15 In Jones, the defendant came under suspicion for trafficking narcotics and became the target of an investigation. Jones, 565 U.S. at__, 132 S.Ct. at 948. Thereafter, and without a warrant, federal agents installed a GPS device on the undercarriage of a Jeep Grand Cherokee while it was parked in a public parking lot, and used the device to track the vehicle's movement over the course of the next 28 days. Id. at__, 132 S.Ct. at 948. The Jeep was registered to Jones's wife, but Jones was the exclusive driver. Id. at n.2, 132 S.Ct. at 949 n.2. The government ultimately obtained an indictment charging Jones with intent to deliver cocaine, and Jones moved to suppress the evidence obtained through the GPS device. Id. at__, 132 S.Ct. at 948. The district court denied the motion and a jury ultimately convicted Jones of conspiracy, but the United States Court of Appeals for the District of Columbia Circuit reversed the conviction on the basis that the evidence admitted by warrantless use of the GPS device violated the fourth amendment. Id. at, 132 S.Ct. at 948-49.
¶ 16 Affirming the court of appeals' reversal, Justice Scalia, writing for the majority, emphasized the property rights-trespass aspect of fourth amendment analysis:
"It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Id. at, 132 S.Ct. at 949.
The Jones Court also noted:
"[W]e do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to the Katz [reasonable expectation of privacy] analysis." (Emphasis in original.) Id. at, 132 S.Ct. at 953.
Thus, because Jones did not make the possessory-interest test the exclusive test, both the possessory-interest and expectation-of-privacy elements considered above in Johnson are still relevant to this analysis.
¶ 17 With respect to standing, the Jones Court emphasized that, although the Jeep was registered to Jones's wife, the government conceded that Jones was the exclusive driver. Id. at__ n.2, 132 S.Ct. at 949 n.2. Thus, the Jones Court noted that, "[i]f Jones was not the owner he had at least the property rights of a bailee." Id. at__ n.2, 132 S.Ct. at 949 n.2. However, because the government did not challenge the court of appeals' conclusion that the Jeep's registration did not affect Jones's ability to make a fourth amendment objection, the Jones Court did not consider the fourth amendment significance of Jones's status. Id. at__ n.2, 132 S.Ct. at 949 n.2.
¶ 18 Since Jones, other courts have addressed issues similar to the one presented here, i.e., whether, pursuant to Jones's holding on the property-rights aspect of the fourth amendment, a person can claim the fourth amendment's protections for a search conducted while he was borrowing another person's car. In United States v. Batista, No. 5:cr11, 2013 U.S. Dist. LEXIS 28710 (W.D. Va. Feb. 28, 2013), the defendant, Albert Batista, was charged with conspiring to distribute heroin. Id. at *2-3. During the course of the investigation, law enforcement agents learned that Albert and his brother, Alex, were using their vehicles to drive between Pennsylvania and Virginia. Id. at *3. Albert primarily drove a Celica and Alex primarily drove an Intrepid; the Intrepid was registered to their mother and shared by both brothers. Id. at *3, *7. Acting on that information, law enforcement agents placed a GPS tracking device on each of the vehicles. Id. Subsequently, a confidential informant notified law enforcement agents that the brothers would be traveling to Philadelphia, and the GPS indicated that Alex's Intrepid was driving west from Philadelphia. Id. at *3-4. Law enforcement agents pulled over the Intrepid while Alex was driving and Albert was riding as a passenger. Id. at *4. A subsequent search revealed more than 80 bundles of heroin located on the passenger side, stuffed underneath the dashboard near the glove box. Id.
¶ 19 Citing Jones, Albert contended that the warrantless placement of the GPS on the Intrepid constituted a search under the fourth amendment and that as a result, the exclusionary rule should bar all evidence derived from the GPS tracking. Id. at *5. The government countered that Albert lacked standing, arguing that he did not have a reasonable expectation of privacy because he was not the primary driver of the Intrepid, he was merely a passenger in the vehicle at the time of the stop, and he was not in "possession" of the vehicle when law enforcement installed the GPS. Id. at *6-7.
¶ 20 The court in Batista phrased the issue as whether Albert "ha[d] standing to challenge both the placement of the GPS tracking device as well as its use." Id. at *12. With respect to placement, the court concluded that Albert had a reasonable expectation of privacy when the GPS was placed on the Intrepid, because Albert was in possession of that vehicle at the time. Id. The court noted that the government could establish that Alex, the purported primary driver of the Intrepid, drove that vehicle only five times, and therefore it was reasonable to infer that Albert also drove the Intrepid "from the fact that the Intrepid was parked at [Albert's] apartment late at night when the GPS was installed." Id. at *13. The court further emphasized that the fact that the Intrepid was parked at Albert's apartment complex showed that Albert had a possessory interest. Id. at *13-14. The court rejected the government's argument that Alex could have merely been visiting Albert when the device was installed, noting that a GPS device was placed on the Celica that same night, and at a ...