{ "id": 1472416, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL K. BALSLEY, Defendant-Appellee", "name_abbreviation": "People v. Balsley", "decision_date": "2002-04-26", "docket_number": "No. 2\u201400\u20141370", "first_page": "184", "last_page": "188", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 184" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "53 S.W.3d 179", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9484820 ], "year": 2001, "pin_cites": [ { "page": "182", "parenthetical": "probable cause to search defendant's home existed where search of trash outside defendant's home revealed products commonly used to manufacture methamphetamine and police received reports that defendant was using and manufacturing the drug in his home" } ], "opinion_index": 0, "case_paths": [ "/sw3d/53/0179-01" ] }, { "cite": "496 N.W.2d 555", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10640493 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nw2d/496/0555-01" ] }, { "cite": "281 Ill. App. 3d 179", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150246 ], "year": 1996, "pin_cites": [ { "page": "183-84" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0179-01" ] }, { "cite": "304 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564646 ], "year": 1999, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0061-01" ] }, { "cite": "196 Ill. 2d 425", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351271 ], "year": 2001, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0425-01" ] }, { "cite": "313 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186565 ], "weight": 9, "year": 2000, "pin_cites": [ { "page": "155" }, { "page": "153" }, { "page": "159" }, { "page": "155" }, { "page": "158" }, { "page": "158" }, { "page": "157" }, { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0152-01" ] } ], "analysis": { "cardinality": 574, "char_count": 11307, "ocr_confidence": 0.755, "pagerank": { "raw": 7.837612589319671e-08, "percentile": 0.45836552632991345 }, "sha256": "a93cde99a5f6f4b96226e162264d13fa242b62c0d4b90204b6b255afec1bbedf", "simhash": "1:ae8c706243ca5655", "word_count": 1885 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL K. BALSLEY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nThe trial court granted the motion of defendant, Michael K. Bals-ley, to quash a warrant to search defendant\u2019s home and to suppress evidence found during the search. On appeal, the State argues that (1) where officers search curbside trash near a residence and recover contraband and documents linking a suspect and the trash to that residence, probable cause exists to search the residence and (2) during the suppression hearing, the trial court erred in admitting defendant\u2019s affidavit and thus allowing defendant to avoid testifying. We reverse.\nBefore the police searched defendant\u2019s home, Illinois State Police Inspector Robbie Dail filed a complaint for a search warrant. The complaint identified as the target of the proposed search the single-family dwelling at 377 Wheaton Avenue in Dixon. Dail averred that on Tuesday, July 27, 1999, he and Officer J. Gary Cooper retrieved one bag of garbage from a garbage can sitting on the side of the street and near the mailbox at 377 Wheaton. Tuesday was the day that garbage in that area usually was collected, and the garbage can was sitting in the place from which garbage typically was removed. Dail averred further that he searched the garbage bag and found \u201cvery small\u201d pieces of cannabis, a \u201cCom-Ed letter addressed to Mike Balsley, 377 Wheaton Avenue, Dixon, Illinois, and a NICOR bill addressed to Mike Balsley\u201d at the same address.\nJudge Payne issued a search warrant, which was executed on July 30, 1999. Thereafter, the State charged defendant with the unlawful possession of more than 5,000 grams of a substance containing cannabis (720 ILCS 550/4(g) (West 1998)) and the unlawful possession, with the intent to deliver, of more than 5,000 grams of a substance containing cannabis (720 ILCS 550/5(g) (West 1998)). Defendant moved to quash the warrant and to suppress the evidence recovered-during the search of his home.\nDuring the hearing on the motion, defendant called Dail, who testified that he went to 377 Wheaton Avenue at about 8 a.m. on July 27, 1999. Dail saw a garbage can sitting on the side of the street. He estimated that the garbage can was between 5 and 20 feet from the mailbox at that address. Dail identified a photograph of the residence. The photograph shows a mailbox next to the street. There is a tree in the yard, and the tree appears to be several feet to the right of the mailbox. Dail testified that the garbage was sitting between the mailbox and the tree. Inside the garbage can was a white garbage bag that was tied shut. The residence nearest to 377 Wheaton was about 100 yards away.\nDail testified that he had been investigating defendant since January 1998 and had most recently been to 377 Wheaton Avenue one or two days before July 27, 1999. Bail could not remember whether any garbage was out on that day.\nOn July 27, Bail left 377 Wheaton and returned with Cooper at about 8:30 a.m. Bail retrieved the garbage bag and placed it in his vehicle. He drove to Cooper\u2019s home to inspect the garbage. The bag itself was knotted shut, and no twist tie was used. Because the bag was tightly tied, Bail had trouble opening it. He removed and inspected each item in the bag. In the bag, Bail found four or five very small pieces of plant material that appeared to be cannabis. The pieces were not contained in any additional packaging. A field test of one of the pieces returned a positive result for cannabis. Also, Bail found the two pieces of mail addressed to defendant at 377 Wheaton. Bail placed the cannabis in an evidence bag and discarded the remaining trash.\nBail testified further that he thought it was possible that cannabis grew wild in the area near 377 Wheaton. Bail knew that defendant owned a dog and acknowledged the possibility that the small pieces were wild cannabis that was carried into the home. Bail attached a photograph of the residence to the complaint for the search warrant and participated in executing the warrant. Cooper\u2019s testimony substantially corroborated that of Bail.\nPhillip Geil testified that he had worked for Rock Valley Bisposal since 1993. On July 27, 1999, he was working as a trash collector, and 377 Wheaton was on his route. Tuesday was the regular collection day for that area. Geil\u2019s garbage truck was about 30 feet long. Geil viewed the same photograph that Bail had identified earlier. The photograph showed a garbage can sitting next to the street and to the right of the tree. Geil recalled that the garbage always was left in the same location as depicted in the photograph and never near the mailbox. If the garbage were near the mailbox, Geil would have to back up his truck to reach it. On July 27, 1999, Geil removed one garbage bag from the garbage can sitting on the curb.\nOver the State\u2019s objection, the trial court admitted defendant\u2019s affidavit. The affidavit stated that defendant never placed his trash near the mailbox but instead placed it at the location depicted on the photograph. The distance between that location and the place where the officers claimed to have found the garbage was 48 feet. Befendant averred further that he left the garbage at that location so that the trash collector would not have to back up his truck to reach it.\nThe State recalled Bail, who testified that the garbage bag he removed did not have any holes in it. There were no other bags in the garbage can.\nThe trial court found that, because no one observed defendant carrying the trash out to the curb, People v. Burmeister, 313 Ill. App. 3d 152 (2000), required that defendant\u2019s motion be granted. The State timely appealed.\nWhen reviewing a trial court\u2019s ruling on a motion to suppress evidence, we accord great deference to the trial court\u2019s factual findings and will reverse them only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). Next, we review de nova the trial court\u2019s decision to suppress the evidence. People v. Mabry, 304 Ill. App. 3d 61, 64 (1999).\nA judge may issue a search warrant for the seizure of evidence of a crime if a person submits a complaint \u201cwhich states facts sufficient to show probable cause and which particularly describes the place or person, or both, to be searched and the things to be seized.\u201d 725 ILCS 5/108\u20143(a) (West 2000). By placing a trash container on the curb for collection, a defendant terminates any possessory or ownership interest in the contents. This abandonment of the trash ends the defendant\u2019s privacy expectation in it, and the fourth amendment protection against unreasonable searches and seizures does not apply. People v. Pacheco, 281 Ill. App. 3d 179, 183-84 (1996). Thus, the police officers properly conducted a warrantless search of defendant\u2019s trash. They could use the evidence discovered to obtain a search warrant, however, only if the complaint for the search warrant established probable cause that the curbside evidence came from the residence to be searched. Burmeister, 313 Ill. App. 3d at 155.\nThis appeal turns on the application of Burmeister. There, the police likewise collected trash bags from the curb in front of the defendants\u2019 residence and found small amounts of contraband. No one saw any of the defendants carry the bags out to the curb. The complaint for a search warrant was based on the search of the trash and \u201ctips from \u2018anonymous sources.\u2019 \u201d Burmeister, 313 Ill. App. 3d at 153. The trial court granted the motion to suppress evidence. This court held that \u201cwhen an application for a search warrant is based on contraband discovered in curbside trash, probable cause exists to search the home only if the application includes a rehable eyewitness account of the defendant depositing the trash.\u201d Burmeister, 313 Ill. App. 3d at 159. In reaching this conclusion, the court noted that trash is readily accessible to animals, children, scavengers, and snoops. Burmeister, 313 Ill. App. 3d at 155. Because the warrant application failed to link the curbside contraband to the defendants or their residence, the trial court\u2019s ruling was affirmed. Burmeister, 313 Ill. App. 3d at 158.\nThe State asked the Burmeister court to hold that the mere presence of contraband in curbside trash creates probable cause to search the nearest residence. The court replied that \u201c[i]f we adopted such a rule, anyone could deposit contraband in the trash, alert the police, and watch as the victim\u2019s residence was searched.\u201d Burmeister, 313 Ill. App. 3d at 158.\nRelying on the reasoning set forth in State v. Erickson, 496 N.W.2d 555 (N.D. 1993), the State argues that Burmeister is distinguishable. We agree. In Erickson, the trash retrieved from a Dumpster behind the defendant\u2019s home contained a traffic ticket issued to the defendant, a letter addressed to him, and evidence of cannabis trafficking. The court held that the evidence supplied a sufficient nexus between the contraband, the defendant, and the home to be searched to support a finding of probable cause. Erickson, 496 N.W.2d at 559; see also State v. Bordner, 53 S.W.3d 179, 182 (Mo. App. 2001) (probable cause to search defendant\u2019s home existed where search of trash outside defendant\u2019s home revealed products commonly used to manufacture methamphetamine and police received reports that defendant was using and manufacturing the drug in his home).\nThe Burmeister court concluded that it did not need to decide whether to follow Erickson because Erickson was distinguishable. Burmeister, 313 Ill. App. 3d at 157. In Burmeister, there was no evidence that the trash contained any \u201cindices of residency,\u201d such as mail, finking the trash to the defendants\u2019 residence. Burmeister, 313 Ill. App. 3d at 157.\nAlthough this cause is very similar to Burmeister, we conclude that it is distinguishable on its facts. The Burmeister court held that where there are no \u201cindices of residency,\u201d a reliable eyewitness account of the suspect depositing the trash is required to establish probable cause to search the suspect\u2019s home. Because such evidence was present here, the trial court incorrectly applied Burmeister and granted defendant\u2019s motion to suppress.\nHere, the testimony of the witnesses allays the Burmeister court\u2019s clearly expressed concern about tampering. The garbage bag was tightly tied shut, and there was no evidence of tampering.\nIn summary, the facts disclosed at the hearing are sufficient to support the well-established legal principles for establishing probable cause and to distinguish this case from Burmeister. These facts include the location of the garbage in relation to the location of the residence, the nature of the residential area, the amount of cannabis, the identifiers inside the garbage bag, and the manner in which the garbage bag was secured and its condition.\nThe judgment of the circuit court of Lee County is reversed.\nReversed.\nBOWMAN and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE GROMETER" } ], "attorneys": [ "Linda A. Giesen, State\u2019s Attorney, of Dixon (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Louis F. Pignatelli and Patrick J. Liston, both of Pignatelli, Liston & Mertes, P.C., of Rock Falls, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL K. BALSLEY, Defendant-Appellee.\nSecond District\nNo. 2\u201400\u20141370\nOpinion filed April 26, 2002.\nLinda A. Giesen, State\u2019s Attorney, of Dixon (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nLouis F. Pignatelli and Patrick J. Liston, both of Pignatelli, Liston & Mertes, P.C., of Rock Falls, for appellee." }, "file_name": "0184-01", "first_page_order": 202, "last_page_order": 206 }