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Docket No. 93699-Agenda 2-May 2003.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
RONALD J. LAMPITOK, Appellee.

Opinion filed September 18, 2003.

JUSTICE GARMAN delivered the opinion of the court:

Defendant, Ronald Lampitok, was arrested and charged with fiveoffenses based on evidence found in his motel room by threeprobation officers. The officers went to the motel to verify whetherdefendant's fiancée, Kitty Bircher, had violated her probation order.Upon their arrival, defendant informed the officers that Bircher wasnot present but that she had been staying there. Despite defendant'sobjection, the officers conducted a warrantless search of the roompursuant to a search condition of Bircher's probation order and seizedseveral items as evidence. Defendant was later arrested and chargedbased on this evidence.

After making several factual findings, the circuit court of Colesallowed defendant's pretrial motion to quash arrest and suppressevidence. A divided appellate court affirmed. No. 4-01-0085(unpublished order under Supreme Court Rule 23). We granted theState's petition for leave to appeal (177 Ill. 2d Rs. 315, 612(b)) toaddress whether a search of defendant's motel room in which aprobationer subject to a search condition was staying was reasonableunder the fourth amendment.

BACKGROUND

Because we are reviewing the circuit court's ruling on a pretrialmotion, the record before us is limited. In July 2000, defendant andBircher were engaged to be married and were living with Bircher'scousin, Bobby Craig, Bircher's daughter, and two other roommatesin an apartment on Madison Street in Charleston. Bircher reportedthis apartment as her place of residence as required by her probationorder. Defendant and Bircher had been living in this apartment forapproximately one month when Craig asked them to leave becausethe landlord was coming to inspect the apartment. Craig was listed onthe lease, and the lease prohibited him from having roommates. Atthe motion hearing, Bircher testified that "he [Craig] asked us to leavefor a couple of days so they could do that [the inspection] and then wewere allowed to go back." Bircher also testified that she had clothesat this apartment, and her mailing address was in Charleston. She didnot 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 Charlestonapartment, Bircher stayed with her cousin, Lori, in Mattoon, anddefendant stayed at the U.S. Grant Motel in Mattoon. Defendantregistered for the motel room while Bircher stayed in the car;defendant paid for the room for the nights of July 12 and 13. Bircherdid not have a key to the room. Bircher and her daughter stayed in theroom with defendant the night of July 13, and Bircher broughtclothing with her. Bircher obtained a Salvation Army voucher to payfor the motel room for the night of July 14. Bircher testified that theyintended to return to the Charleston apartment on the morning of July15.

Probation Officer Steve Kelly also testified at the hearing.Bircher's probation officer, Mitch Goodwin, had attempted a routinehome visit at Bircher's Charleston apartment on the morning of July14. Kelly testified that Goodwin told him that "he made contact withtwo relatives and they stated that she no longer lived there, she wasstaying with Mr. Lampitok at the U.S. Grant Motel in Mattoon."Kelly, Goodwin, and fellow probation officer Vicki Starwaltdiscussed the situation. The three officers decided to go to the motelprimarily to verify whether Bircher violated her probation order bychanging residences without prior notification and also to verifywhether Bircher was in further violation by residing in the presenceof weapons or drugs. Kelly had previous personal encounters withdefendant during which he suspected that defendant had been underthe influence of drugs. During these encounters, defendantacknowledged that Bircher was on probation. Kelly admitted that atthat time they had no information that defendant was involved in anyillegal activity.

The officers arrived at the motel around 1:15 p.m. Goodwin andKelly stopped at the motel office to ask what room Bircher wasstaying in, and they were directed to room 14. Goodwin knockedrepeatedly on the door; the officers could hear movement in the room.Eventually, defendant answered the door. Goodwin asked whetherBircher was there, and defendant responded that she was not. Kellyalso testified that "Officer Goodwin asked him if Kitty [Bircher] wasstaying there with him and he said yes." After additional conversationnot disclosed in the record, Kelly informed defendant that they weregoing to enter the room. Defendant refused and attempted to close thedoor. Because Kelly was in the doorway with his foot in the door jam,defendant was unable to close the door. The officers entered, andnothing illegal was in plain view. Bircher was in fact absent, but shehad left her two-year-old daughter in defendant's care.

The officers did not have a warrant to search the motel room. Asthe officers began to search the room, defendant fled. Starwaltattended to the young girl. Kelly discovered a soft makeup bagcontaining a pistol and ammunition between the mattress and boxsprings of the bed. He also found a sword and a knife on the floorunderneath this portion of the bed. Goodwin discovered a syringe anda plastic baggy with a white powder, later determined to be acontrolled substance. Kelly speculated that Goodwin discovered thisevidence in a duffel bag in the closet, but he was not certain becausehe was busy searching at the time.

Certain conditions of Bircher's probation order are relevant tothis case:

"1. That the Defendant shall not violate any criminalstatute of any jurisdiction.

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6. That the Defendant shall keep her Probation Officeradvised of her place of residence and employment at alltimes, advising the Probation Officer prior to any change ofresidence or employment.

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8. That the Defendant shall not possess a firearm or otherdangerous weapon.

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11. That the Defendant shall submit to a search of herperson, residence, or automobile at any time as directed byher Probation Officer to verify compliance with theconditions of this Probation Order."

Bircher's two-year probation period began April 6, 1999, so sheclearly 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 aweapon by a felon (720 ILCS 5/24-1.1 (West 1998)), unlawfulpossession of firearm ammunition by a felon (720 ILCS 5/24-1.1(West 1998)), unlawful possession of a hypodermic syringe (720ILCS 635/1 (West 1998)), unlawful possession of a controlledsubstance (720 ILCS 570/402(d) (West 1998)), and armed violence(720 ILCS 5/33A-2 (West 1998)).

The circuit court made numerous findings when allowingdefendant's motion to quash arrest and suppress evidence. The courtstated that "[a] warrantless search was conducted without defendant'sconsent. The Probationer, Kitty Bircher, was not present. Thedefendant has standing to object to same. He was the registered tenantof the room searched with an expectation of privacy." The courtfound that paragraph 11 of Bircher's probation order was notauthorized by section 5-6-3 of the Unified Code of Corrections(Code) (730 ILCS 5/5-6-3 (West 2000)). The court furthercondemned the search given the lack of applicable "regulations,guidelines, standards or procedures" comparable to those present inGriffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164(1987), and the lack of "reasonable grounds to believe thatcontraband was present or that the Probationer or the defendant hadcommitted a criminal offense." The court also found that the motelroom was not Bircher's residence.

A divided appellate court affirmed. No. 4-01-0085 (unpublishedorder under Supreme Court Rule 23). The appellate court agreed withthe circuit court that defendant was the registered tenant of the roomand that he had an expectation of privacy in the room. The order didnot review the finding that the room was not Bircher's residencebecause 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 notlist submission to a probation search as a possible condition, it "maybe" permissible under the section's general authorization of "otherreasonable conditions relating to the nature of the offense or therehabilitation of the defendant." 730 ILCS 5/5-6-3(b) (West 1998).However, Bircher's probation order required her to "submit to asearch *** as directed by her Probation Officer." Because she was notpresent at the time of the search, she could not be directed by herprobation officer to submit to the search. Thus, the search was notauthorized by the probation order. In addition, defendant was not aprobationer, the officers had no information that defendant wasinvolved 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 waswhether the officers reasonably believed that the motel room wasBircher's residence rather than whether it was her actual residence.The record contained sufficient facts to find that the officersreasonably believed the room was Bircher's residence so that she wasin violation of her requirement to notify them of a change inresidence. The concurrence disagreed with the majority order'sfinding that defendant did not have a reduced expectation of privacybecause he cohabited with a probationer. However, the concurrenceagreed that the search did not comply with the probation order'sspecification that it be "directed by her Probation Officer," whichrequired either Bircher's presence or notice of the search. Because thesearch was also warrantless, the evidence was properly suppressed onthis basis.

The dissent agreed with the special concurrence that the officershad a reasonable belief that the motel room was Bircher's residenceand that defendant had a reduced expectation of privacy. However,the dissent did not agree that the probation order required Bircher'spresence at the search because the probationer could always evadeprobation conditions by not answering the door or having anotherfalsely claim she was gone.

The complexity of this issue and the inclusion of three separateappellate opinions in this order create an unusual disposition. Theconcurring and dissenting justices agree on the resolution of someissues so that they become the holding of the appellate court eventhough they are not found in the principal order. See Marks v. UnitedStates, 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 theofficers had a reasonable belief that the motel room was Bircher'sresidence and that defendant had a reduced expectation of privacy.Two justices found that the language of Bircher's probation orderrequired her to be present during a search so that she could initiallysubmit to that search directed by her probation officer, the basis onwhich the court affirmed suppression of the evidence. Thus, althoughfourth amendment principles are discussed, the appellate court'saffirmance of the suppression of the evidence is based onnoncompliance with the terms of the probation order.

In reviewing this appellate decision, we examine whether thesearch was unconstitutional so that the evidence it uncovered wasproperly suppressed. This fourth amendment analysis has severalcomponents: (A) a discussion of relevant case law, demonstrating thatthe search must be reasonable at its inception and in its scope underthe totality of the circumstances; (B) a determination of what level ofindividualized suspicion is required for the probation search to bejustified at its inception; (C) an evaluation of what level ofindividualized suspicion the officers had that Bircher was in violationof her probation order; (D) an examination of whether the scope ofthe search exceeded the initial justification for the search; and (E) ananalysis of whether Bircher's acceptance of the search condition inher probation order constituted prospective consent to all searches,waiving fourth amendment protection.

ANALYSIS

The burden of proof is on the defendant at a hearing on a motionto suppress evidence. 725 ILCS 5/114-12(b) (West 2002); People v.Gipson, 203 Ill. 2d 298, 306 (2003). If the defendant makes a primafacie case that the evidence was obtained through an illegal search,then the State can counter with its own evidence. Gipson, 203 Ill. 2dat 306-07. At the hearing, defendant contended that evidence wasseized pursuant to an unconstitutional search; he offered testimony tosupport that the search of his motel room was nonconsensual,warrantless, and suspicionless and that the probationer, Bircher, wasnot present during the search. The State responded that this searchwas proper because the search was conducted pursuant to the searchcondition in Bircher's probation order and was conducted incompliance with fourth amendment principles.

Generally, a circuit court's ruling on a motion to suppressevidence presents a mixed question of law and fact. People v.Thomas, 198 Ill. 2d 103, 108 (2001). The reviewing court upholds thefactual findings and witness credibility determinations of the circuitcourt unless they are against the manifest weight of the evidence.People v. Gherna, 203 Ill. 2d 165, 175 (2003). If the reviewing courtaccepts the factual findings, it reviews de novo whether suppressionis appropriate under those facts. Gherna, 203 Ill. 2d at 175. In thepresent case, our conclusions do not depend upon factual findings bythe circuit court that are disputed by the parties, so we conduct denovo review.

A. Relevant Precedent

In his motion to quash arrest and suppress evidence, defendantchallenged the search on both federal and state constitutional grounds.The fourth amendment of the United States Constitution applies tothe states through the due process clause of the fourteenth amendmentbecause "the right to be free from arbitrary government intrusion isbasic to a free society and implicit in the concept of ordered liberty."People v. James, 163 Ill. 2d 302, 311 (1994), citing Stefanelli v.Minard, 342 U.S. 117, 119, 96 L. Ed. 138, 141-42, 72 S. Ct. 118,119-20 (1951). In addition, this court has acknowledged that thefourth amendment provides the same level of protection as the searchand seizure provision in article I, section 6, of our IllinoisConstitution (Ill. Const. 1970, art. I,