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No. 3--01--0974

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

The defendant, William Stage, was charged with unlawfulpossession of cocaine with intent to deliver (720 ILCS570/401(a)(2)(A) (West 1998)) and unlawful possession of cocaine(720 ILCS 570/402(a)(2)(A) (West 1998)). Following a hearing,the trial judge suppressed the drugs seized from the defendant'shome during the execution of a search warrant. The Stateappeals. We reverse and remand.

The record shows that on September 7, 1999, Inspector RobbieDail of the Illinois State Police Blackhawk Area Task Forcerequested a search warrant for the defendant's residence. In hissworn complaint for the warrant, Inspector Dail stated that thedefendant, his son, and Carol Bower were all living at 2206 SixthStreet in Fulton, Illinois. On September 3, 1999, Inspector Dailcollected a garbage bag from the garbage can in front of 2206Sixth Street. There were no holes in the bag. It was tightlysealed at the top. When he examined the garbage, he found abaggie with cocaine residue and a silver piece of metal made intoa pipe which tested positive for cocaine and methamphetamine. Healso found a Wal-Mart advertisement addressed to 2206 SixthStreet and an envelope from a greenhouse addressed to Carol Bowerat 2206 Sixth Street. Based on the inspector's complaint, thejudge issued a search warrant.

Prior to trial, the defendant moved to suppress the evidenceobtained in the search. Citing People v Burmeister, 313 Ill.App. 3d 152, 728 N.E.2d 1260 (2000), the defendant argued thatsince the police did not observe a resident of 2206 Sixth Streetplace the garbage bag in the garbage, there was no probable causeto support the issuance of the search warrant. The trial courtagreed and suppressed the evidence. The State appealed.

Generally, a trial court's ruling on a motion to suppresswill not be disturbed unless it is manifestly erroneous. Peoplev. Miller, 173 Ill. 2d 167, 670 N.E.2d 721 (1996). However, whenthere are no issues of fact or credibility, but only of law, theappropriate standard of review is de novo. People v. Aguilar,265 Ill. App. 3d 105, 637 N.E.2d 1221 (1994). This case involvesthe application of the law to uncontroverted facts. Therefore,we will review the trial court's decision de novo.

The trial court's decision was based on Burmeister, 313 Ill.App. 3d 152, 728 N.E.2d 1260. In Burmeister, a search warrantwas issued based on information provided by "anonymous tipsters"and garbage in a garbage bag collected from the front of theresidence that was searched. The appellate court acknowledgedthat anyone can add to garbage once it has been placed curbside. The garbage in the garbage bag did not contain any indicia thatit came from the residence, and no one observed anyone from theresidence placing the bag in the garbage bin. The appellatecourt held that nothing connected the garbage to the residencewhich was searched; therefore, no probable cause existed to issuethe warrant.

In the instant case, the trial court relied on that portionof the analysis in Burmeister which acknowledges that anyone canadd to a container of garbage once it is left out on the street. The trial judge concluded that since no one had seen the garbagebag placed in the garbage, there was insufficient probable causeto issue the search warrant.

We hold that Burmeister did not compel granting the motionto suppress. Subsequent to the trial court's decision in thismatter, the Second District clarified its holding in Burmeisterin People v. Balsley, 329 Ill. App. 3d 184, 769 N.E.2d 153(2002). In Balsley, a search warrant was issued based on thecontents of a garbage bag collected from the front of thedefendant's residence. The garbage bag contained two pieces ofmail addressed to the defendant at the address to be searched aswell as some cannabis. The appellate court distinguishedBurmeister and held that where there are indicia which connectthe garbage to the residence to be searched, probable cause toissue a warrant exists. Likewise, in the instant case, therewere indicia which tied the garbage to the residence. Therefore,we hold that, as a matter of law, sufficient probable causeexisted for the search warrant to be issued in this case.

The defendant argues on appeal that we should expand theprivacy protections of the Illinois Constitution (Ill. Const.1970, art. I,