Summary
concluding that there is not a reasonable expectation of privacy in garbage placed adjacent to the sidewalk, which is “readily accessible” to the public
Summary of this case from State v. McMurrayOpinion
No. 91SC591
Decided July 20, 1992. Rehearing Denied August 24, 1992.
Certiorari to the Colorado Court of Appeals.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Paul Koehler, Assistant Attorney General, Appellate Section, for Petitioner.
Pozner Hutt Kaplan, P.C., Abraham V. Hutt, for Respondent.
The People of the State of Colorado (the People) petition from the court of appeals opinion in People v. Hillman, 821 P.2d 884 (Colo.App. 1991). The court of appeals reversed James Hillman's (Hillman) conviction of cultivation and possession of marijuana with the intent to distribute, based on a finding that Hillman's garbage was protected under Article II, Section 7, of the Colorado Constitution. We reverse and reinstate the judgment of conviction.
I.
On March 16, 1989, Deputy Sheriff Jerry Blue drove to 49 East 81st Place, a single-family residence in Adams County. At approximately 12:05 a.m., Officer Blue picked up five trash bags that had been placed adjacent to the intersection of the driveway and sidewalk for trash collection. Four of the bags were both black and opaque. Officer Blue described the fifth bag as a large dog food bag. All of the five bags were tied.
Officer Blue indicated the location of the trash bags, during a hearing on a motion to suppress, by drawing a circle on a photograph labeled exhibit 1. At that time, Officer Blue could see trash cans sitting on the driveway, close to the house. The trash bags were not, however, in the trash cans when Officer Blue collected them. At the hearing, Officer Blue testified that the bags were placed out at the curbline, by the sidewalk at the very front of the property on the west side of the driveway.
Officer Blue took the trash bags back to the police station. At approximately 10:00 a.m., Officer Mark Nicastle examined the contents of the bags. Officer Nicastle found a credit union slip and two magazines bearing Hillman's name and address. Inside the dog food bag, Officer Nicastle found a green trash bag. Inside the green trash bag, Officer Nicastle found marijuana plants — some stripped of their leaves, and others in potting containers. A substantial amount of marijuana was found in several of the trash bags.
Officer Nicastle also found, among other things, rolling papers and suspected marijuana seeds in the bags.
Officer Nicastle sought a search warrant for 49 East 81st Place. In support of his request, Officer Nicastle gave an affidavit stating that 49 East 81st Place had been under intermittent surveillance during January and February of 1989. This surveillance revealed that numerous vehicles came to the residence. Occupants of the vehicles were seen entering the residence and staying approximately five minutes before leaving the area. Officer Nicastle also stated in the affidavit that Detective Blue collected the five bags and that Officer Nicastle discovered their contents on March 16.
The affidavit provided additional grounds, relating to events in 1987 and 1988, in support of a search warrant.
A search warrant for 49 East 81st Place was issued, and Officer Nicastle executed the warrant on March 16. Inside 49 East 81st Place, Officer Nicastle found growing marijuana plants, harvested marijuana plants, scales, boxes of small plastic bags, and halogen lights.
Officer Nicastle did testify at trial that he conducted the search on March 10, 1989. Neither party, however, disputes that the search took place on March 16.
Hillman was charged with cultivation and possession of marijuana with intent to distribute, among other things. On November 17, 1989, the district court held a hearing on Hillman's motion to suppress the evidence seized from his garbage and subsequently from his house. At the hearing, the People stipulated that there was no probable cause to search the trash bags. Finding no violation of Hillman's constitutional rights, the district court denied Hillman's motion.
Hillman was also charged with possession of psilocybin mushrooms and methamphetamine. The district court dismissed these charges as unsupported by the evidence.
Defense counsel stated at the hearing: "Judge, in order to get down to what we both perceive to be the true issue in the case, the Government and the defendant are stipulating there was no warrant and no probable cause for the search of trash cans that you will hear about in this case, and the subsequent search of the house done pursuant to warrant was based on probable cause provided by the search of the trash cans." (Emphasis added.) During the hearing, the district court acknowledged that the stipulation addressed the issue of whether there was probable cause to look in the trash bags.
On December 4, 1989, Hillman waived his right to a jury trial, and his case was tried to the district court. The district court entered a judgment of guilty with respect to the charges of cultivation and possession with intent to distribute. Hillman appealed, and the court of appeals reversed Hillman's conviction.
The court of appeals found that Hillman's garbage was protected under Article II, Section 7, of the Colorado Constitution. The court of appeals also found that the parties stipulated in the district court that the search of Hillman's home was based on probable cause provided by the search of the trash. Thus, the court of appeals did not consider the People's argument that the warrant for the home search was supported by independent information providing sufficient probable cause. The court of appeals concluded that the district court erred in denying Hillman's motion to suppress the evidence seized from his garbage.
The record does not reveal that the stipulation entered into was before the district court. At the hearing on the motion to suppress, counsel informed the judge that the parties stipulated to the fact that there was no probable cause to search the trash bags. Counsel did not stipulate that there was no probable cause to search Hillman's house at the hearing on the suppression motion. See supra n. 6.
We granted certiorari to consider "whether the Colorado Constitution prohibits warrantless examinations of garbage left on the street for disposal." We find that it does not.
The issue on which certiorari was granted was phrased as stated. We note that the trash bags were not, as the phrasing suggests, located on the street in this case.
II.
Article II, Section 7, of the Colorado Constitution protects individuals from unreasonable searches and seizures. Colo. Const. art. II, § 7; People v. Wright, 804 P.2d 866, 869 (Colo. 1991) (holding that article II, section 7, proscribes all unreasonable searches and seizures); People v. Wieser, 796 P.2d 982, 984 (Colo. 1990)) (holding that the Colorado Constitution protects people from unreasonable governmental intrusions into their legitimate expectations of privacy); Hoffman v. People, 780 P.2d 471, 473 (Colo. 1989). Article II, Section 7, of the Colorado Constitution provides that "[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures."
"`When a defendant challenges governmental investigative activity involving an intrusion into his privacy, Katz[ v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967),] requires a two-step inquiry: (1) was the intrusion a search; (2) if so, was it a reasonable search.'" Wieser, 796 P.2d at 984 (quoting People v. Unruh, 713 P.2d 370, 377 (Colo.), cert. denied, 476 U.S. 1171 (1986)). We have consistently begun our analysis of the constitutionality of searches and seizures by determining whether the defendant has a legitimate expectation of privacy in the area or object in question. Wieser, 796 P.2d at 984. We begin our analysis with this threshold inquiry because the protections of article II, section 7, do not extend to investigative activity that does not amount to a search or seizure. See People v. Shorty, 731 P.2d 679, 681 (Colo. 1987) (discussing Katz v. United States, 389 U.S. 347 (1967); People v. Oates, 698 P.2d 811, 816 (Colo. 1985)).
Whether the contested activities constitute a search depends on whether the officer's "actions intruded upon an activity or area in which the defendant held a legitimate expectation of privacy." Wieser, 796 P.2d at 984 (citing Oates, 698 P.2d at 814). "A legitimate expectation of privacy is one that society is prepared to consider reasonable." Id. (citing Oates, 698 P.2d at 814; People v. Sporleder, 666 P.2d 135, 139 (Colo. 1983)). We have not previously considered whether, under article II, section 7, society is prepared to recognize as reasonable a legitimate expectation of privacy in trash bags placed adjacent to a public sidewalk for disposal. We begin our consideration by reviewing the decisions of the state and federal courts that have addressed this question.
A.
In 1988, the United States Supreme Court concluded that the Fourth Amendment to the United States Constitution did not prohibit the warrantless search and seizure of garbage left outside the curtilage of the home for collection. California v. Greenwood, 486 U.S. 35, 37 (1988). In Greenwood, a police investigator learned that a truck containing illegal drugs was scheduled to arrive at Greenwood's house. Id. The investigator had also received complaints of heavy vehicular traffic late at night in front of Greenwood's single-family residence. Id. The investigator asked the regular trash collector to deliver to the investigator the garbage bags that Greenwood left on the curb in front of his house. Id.
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." While the Fourth Amendment and Article II, § 7, of the Colorado Constitution share a common purpose, People v. Oates, 698 P.2d 811, 814 (Colo. 1985), we note that we are free to construe article II, § 7, "as imposing more stringent constraints on police conduct than does the Federal Constitution." California v. Greenwood, 486 U.S. 35, 43 (1988). We have previously construed article II, § 7, in such a fashion. See People v. Unruh, 713 P.2d 370, 377 (Colo.), cert. denied, 476 U.S. 1171 (1986) (noting that the use of electronic pen registers constitutes a search under the Colorado Constitution but not under the United States Constitution). We have also been persuaded by federal authority and have interpreted the Colorado Constitution to provide the same quantum of protection as the federal constitution. People v. Wieser, 796 P.2d 982, 985 (Colo. 1990) (relying on United States v. Place, 462 U.S. 696 (1983), in concluding that a dog sniff does not constitute a search under either the federal or state constitutions).
The investigator found items indicative of narcotics use in the bags and recited this information in an affidavit in support of a warrant to search Greenwood's house. Id. at 37-38. The warrant was issued and executed, revealing narcotics and evidence of narcotics trafficking. Id. at 38.
The United States Supreme Court stated that Greenwood's Fourth Amendment rights would only be violated if Greenwood "manifested a subjective expectation of privacy in [his] garbage that society accepts as objectively reasonable." Id. at 39 (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)). The Court noted that Greenwood's subjective expectation that no one would inspect his opaque trash bags prior to collection did not, by itself, create a Fourth Amendment protection. Id. The Court instead concluded that Greenwood "exposed [his] garbage to the public sufficiently to defeat [his] claim to Fourth Amendment protection." Id. at 40.
The Court reasoned that plastic garbage bags left "on or at the side of a public street" are readily accessible to members of the public. Id. Thus, the Court continued, individuals could not possess a reasonable expectation of privacy in inculpatory, discarded items when the items are in garbage bags that in turn are deposited "`in an area particularly suited for public inspection and, in a manner of speaking, public consumption.'" Id. at 40-41 (quoting United States v. Reicherter, 647 F.2d 397, 399 (3d Cir. 1981)).
The Court premised its conclusion that society would not accept as reasonable an expectation of privacy in trash left for collection in an area accessible to the public partly on "the unanimous rejection of similar claims by the Federal Courts of Appeals" and on the decisions of a vast majority of state appellate courts. Greenwood, 486 U.S. at 41.
The Greenwood Court cited, in support of its assertions, the following cases: United States v. Dela Espriella, 781 F.2d 1432 (9th Cir. 1986); United States v. O'Bryant, 775 F.2d 1528 (11th Cir. 1985); United States v. Michaels, 726 F.2d 1307 (8th Cir. 1984); United States v. Kramer, 711 F.2d 789 (7th Cir. 1983); United States v. Terry, 702 F.2d 299 (2d Cir. 1983); United States v. Reicherter, 647 F.2d 397 (3d Cir. 1981); United States v. Vahalik, 606 F.2d 99 (5th Cir. 1979); United States v. Crowell, 586 F.2d 1020 (4th Cir. 1978); Magda v. Benson, 536 F.2d 111 (6th Cir. 1976); United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); Smith v. State, 510 P.2d 793 (Alaska 1973); State v. Fassler, 503 P.2d 807 (Ariz. 1972); State v. Schultz, 388 So.2d 1326 (Fla.Dist.Ct.App. 1980); People v. Huddleston, 347 N.E.2d 76 (Ill.App.Ct. 1976); Commonwealth v. Chappee, 492 N.E.2d 719 (Mass. 1986); People v. Whotte, 317 N.W.2d 266 (Mich. Ct. App. 1982); State v. Oquist, 327 N.W.2d 587 (Minn. 1982); State v. Ronngren, 361 N.W.2d 224 (N.D. 1985); State v. Brown, 484 N.E.2d 215 (Ohio Ct. App. 1984); Cooks v. State, 699 P.2d 653 (Okla.Crim.App. 1985); State v. Purvis, 438 P.2d 1002 (Ore. 1968); Commonwealth v. Minton, 432 A.2d 212 (Pa.Super.Ct. 1981); Willis v. State, 518 S.W.2d 247 (Tex.Crim.App. 1975); State v. Stevens, 367 N.W.2d 788 (Wis. 1985); Croker v. State, 477 P.2d 122 (Wyo. 1970). Greenwood, 486 U.S. at 41-43 (subsequent histories omitted).
We note that the majority of federal and state courts considering this question in the wake of Greenwood have similarly concluded that society will not accept as reasonable an expectation of privacy in trash left for collection.
The United States Court of Appeals for the First Circuit, for example, upheld a warrantless search of trash bags located within barrels outside of the defendant's house but on his lawn, adjacent to the curb. United States v. Wilkinson, 926 F.2d 22, 27 (1st Cir.), cert. denied, 501 U.S. 1211, 111 S. Ct. 2813 (1991). The Wilkinson court based its conclusion on the language in Greenwood, positing that society commonly knows that plastic garbage bags left on or at a public street are readily accessible to the public. 926 F.2d at 27.
The United States Court of Appeals for the Seventh Circuit found that a defendant did not possess a reasonable expectation of privacy in his garbage where "the distance between the garbage cans and the sidewalk was relatively short, the garbage was collected by the garbage service at that location, and the garbage cans were clearly visible from the sidewalk." United States v. Hedrick, 922 F.2d 396, 400 (7th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 147 (1991). In Hedrick, the defendant's garbage was placed in cans located eighteen feet west of a public sidewalk on the defendant's driveway. Id. at 397.
In its analysis, the Hedrick court considered the concept of curtilage and the protection afforded sealed containers. With respect to the concept of curtilage, the Hedrick court noted that the garbage cans were technically within the curtilage of the defendant's home because the area in which they were located was an area wherein the activity of home life often extends. Id. at 399. The Hedrick court noted, however, that the heightened expectation of privacy encompassing the curtilage of a home becomes unreasonable, however, when that area is exposed to the public. Id.
Curtilage has been defined as "a common-law concept which generally refers to the enclosed space of ground and buildings immediately surrounding a dwellinghouse." Hoffman v. People, 780 P.2d 471, 472 n. 3 (Colo. 1989).
This court has consistently "held that the owner or possessor of a sealed container possesses a legitimate expectation of privacy in its contents." People v. Oates, 698 P.2d 811, 816 (Colo. 1985).
With respect to sealed containers, the Hedrick court noted that a backpack located at the side of a driveway could not be searched without a warrant because its contents are not in plain view and it has not been exposed to the public. Id. The Hedrick court observed that "[t]he obvious distinction between garbage cans and other containers is that it is `common knowledge' that members of the public often sort through other people's garbage, and that the garbage is eventually removed by garbage collectors on a regular basis." Id. (citing Greenwood, 486 U.S. at 40).
Relying on a previous decision, United States v. Kramer, 711 F.2d 789 (7th Cir.), cert. denied, 464 U.S. 962 (1983), the Hedrick court declined to adopt a bright line rule. 922 F.2d at 400. The Hedrick court structured its analysis on an evaluation of public accessibility and concluded that, where "garbage is readily accessible from the street or other public thoroughfares, an expectation of privacy may be objectively unreasonable because of the common practice of . . . members of the public in sorting through garbage." Id.
Other federal courts have concluded that there is no expectation of privacy in garbage that is readily accessible to the public when placed for collection. Pleasant v. Lovell, 876 F.2d 787, 800 (10th Cir. 1989) (noting that federal appellate courts uniformly hold that trash placed for collection in a location accessible to the public is without Fourth Amendment protection); United States v. Trice, 864 F.2d 1421, 1423-24 (8th Cir. 1988) (finding no reasonable expectation of privacy in cans; while technically located on defendant's property, the garbage was in public view and pedestrians had easy access to it), cert. dismissed, 491 U.S. 914 (1989); United States v. Scott, 776 F. Supp. 629, 632 (D. Mass. 1991) (relying on Kramer, observing that one who takes steps reasonably calculated to avoid snooping when disposing of trash can have a reasonable expectation of privacy in that trash); United States v. Certain Real Property Located at 987 Fisher Rd., 719 F. Supp. 1396, 1404-06 (E.D. Mich. 1989) (holding that, on a continuum, there is a reasonable expectation of privacy in garbage bags placed against the back wall of a house, hidden from the view of ordinary pedestrians passing by the front of the house); see also United States v. Carmona, 858 F.2d 66, 68-69 (2d Cir. 1988) (concluding that appellant had no reasonable expectation of privacy in trash seized from trash cans placed on the street curb); United States v. Musson, 650 F. Supp. 525, 541 (D. Colo. 1986) (finding no Fourth Amendment violation when trash was seized from sidewalk in front of defendant's home).
A majority of state courts have generally found that there is no reasonable expectation of privacy in garbage when placed for collection, under both state and federal constitutional guarantees. Walls v. State, 536 So.2d 137, 138-39 (Ala.Crim.App. 1988), cert. denied, 490 U.S. 1020 (1989) (search of defendant's garbage located in front of his residence did not violate a proprietary interest in it, citing Greenwood); State v. Mooney, 588 A.2d 145, 157 n. 14 (Conn.), cert. denied, 112 S. Ct. 330 (1991) (observing that trash bags, while closed containers, may not carry a reasonable expectation of privacy when placed beyond the curtilage of a home for collection); State v. Fisher, 591 So.2d 1049, 1050 (Fla. Dist. Ct. App. 1991) (concluding that defendants sufficiently exposed their garbage to the public to defeat Fourth Amendment protection when placing it in plastic cans located in front of the house on the road right-of-way); Perkins v. State, 398 S.E.2d 702, 704 (Ga.Ct.App. 1990) (following Greenwood); People v. Collins, 478 N.E.2d 267, 278-79 (Ill.), cert. denied, 474 U.S. 935 (1985) (finding no reasonable expectation of privacy in a garbage bag left on a second floor landing of an outside stairway because such area was an openly accessible common area of the apartment building); State v. Henderson, 435 N.W.2d 394 (Iowa Ct. App. 1988) (finding no violation of the Iowa Constitution where evidence was seized from trash bags that were tied shut and placed in metal garbage cans); In re Forfeiture of U.S. Currency, 450 N.W.2d 93, 94 (Mich.Ct.App. 1989) (following Greenwood); State v. Krech, 403 N.W.2d 634, 637-38 (Minn. 1987) (concluding that defendants did not have a reasonable expectation of privacy in garbage wrapped in plastic bags and placed in cans in back of a duplex a few feet away from an alley, where defendant's customers typically walked near the garbage en route to the back entrance); State v. Texel, 433 N.W.2d 541, 543 (Neb. 1989) (holding that no reasonable expectation of privacy exists in garbage which has been made accessible to the public); Commonwealth v. Perdue, 564 A.2d 489, 493 (Pa.Super. 1989), appeal denied, 574 A.2d 68 (Pa. 1990) (finding no reasonable expectation of privacy in garbage left for collection subject to public inspection); State v. Rodriguez, 828 P.2d 636, 642 (Wash.Ct.App. 1992) (finding no reasonable expectation of privacy in a garbage bag thrown on top of a community dumpster for an apartment complex); State v. Stevens, 367 N.W.2d 788, 797 (Wis.), cert. denied, 474 U.S. 852 (1985) (finding that, as trash moves farther from the home, any expectation of privacy in it is diminished).
But see State v. Tanaka, 701 P.2d 1274 (Haw. 1985); State v. Hempele, 576 A.2d 793 (N.J. 1990); State v. Boland, 800 P.2d 1112 (Wash. 1990); but cf. State v. Rodriguez, 828 P.2d 636 (Wash.Ct.App. 1992).
B.
We now determine whether, pursuant to Article II, Section 7, of the Colorado Constitution, society recognizes as reasonable an expectation of privacy in garbage left adjacent to a public sidewalk for collection. We conclude that in this case, it does not.
"Whether an asserted expectation of privacy is `legitimate' depends on objective factors, not on the individual's subjective expectations." People v. Juarez, 770 P.2d 1286, 1289 (Colo. 1989). We have repeatedly emphasized that the existence of such an expectation can only "be determined after examining all the facts and circumstances in each particular case." People v. Wieser, 796 P.2d 982 (Colo. 1990) (citing Hoffman v. People, 780 P.2d 471, 474 (Colo. 1989); and People v. Shorty, 731 P.2d 679, 681 (Colo. 1987)). We note that "the proponent of a motion to suppress has the burden of establishing that his own fourth amendment rights were violated." People v. Suttles, 685 P.2d 183, 189 (Colo. 1984).
Hillman urges this court to follow two distinct lines of authority interpreting article II, § 7, in the contexts of numbers dialed from a telephone and of bank records, wherein we recognized expectations of privacy in transactions involving third parties. People v. Sporleder, 666 P.2d 135 (Colo. 1983); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980). We find that these lines of authority are distinguishable and thus do not govern the instant case because individuals do not generally know that members of the public might inspect or snoop in and around their telephone or bank records.
Accordingly, we have not concluded that all police investigative activity impermissibly infringes on a legitimate expectation of privacy and thus does not rise to the level of a search for the purposes of article II, section 7. Wieser, 796 P.2d at 984-85 (holding that a canine sniff outside of a public storage locker while an officer walked a dog on a public walkway did not constitute a search for purposes of article II, section 7).
We have previously considered the concepts of curtilage and public accessibility in analyzing whether a legitimate expectation of privacy exists and is one that society is prepared to accept as legitimate. Hoffman v. People, 780 P.2d 471, 475 (Colo. 1989). We have noted that "[t]here is no invasion of privacy in the observation of that which is plainly visible to the public." Id. at 474. We found in Hoffman that defendants might not have an expectation of privacy acceptable to society where marijuana plants were located within the curtilage of the defendant's residence but the curtilage was accessible as well as visible to the general public. Id. at 475.
See also People v. McClaugherty, 193 Colo. 360, 363, 566 P.2d 361, 363 (1977) (finding no expectation of privacy in a truck which was plainly visible to the general public).
In Hoffman, we relied on our decision in People v. Shorty, 731 P.2d 679 (Colo. 1987). In Shorty, we stated that "the fact that a search occurs within the curtilage is not dispositive if the area's public accessibility dispels any reasonable expectation of privacy." Shorty, 731 P.2d at 681 (citing United States v. Smith, 783 F.2d 648 (6th Cir. 1986)). In analyzing whether the defendant had a reasonable expectation of privacy, we noted that the area in which the inculpatory evidence was found was an area open to the public — the area directly under the defendant's doormat. Id. at 682.
The defendant had a piece of carpet, approximately two feet square, covering a drain in front of the entrance to his apartment. People v. Shorty, 731 P.2d 679, 681 (Colo. 1987).
The great weight of authority recognizing that individuals do not have reasonable expectations of privacy when their garbage is readily accessible to members of the public is persuasive and in accord with our analysis in Hoffman and Shorty. See, e.g., United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991) (holding that there is no expectation of privacy in garbage that is readily accessible from public thoroughfares because of the common practice of the public in sorting through garbage), cert. denied, ___ U.S. ___, 112 S. Ct. 147 (1991); State v. Texel, 433 N.W.2d 541 (Neb. 1989) (holding that no reasonable expectation of privacy exists in garbage which has been made accessible to the public).
In the present case, Hillman sought to have the evidence culled from his garbage suppressed at trial. Hillman placed the garbage bags directly adjacent to the sidewalk in front of his residence. Officer Blue collected the trash bags from that location. When collected, the trash bags were not contained in the trash cans that Officer Blue could see from the sidewalk, which were located close to Hillman's residence.
In finding that Hillman did not possess a reasonable expectation of privacy in his garbage bags placed at the sidewalk for collection, we recognize that there may be circumstances in which a resident may have a reasonable expectation of privacy in garbage bags that are so positioned within the curtilage of a residence as to not be readily accessible to the public. In so finding, however, we do not premise our holding on theories of abandonment of interests in property or assumption of risk.
We conclude that Hillman did not have a reasonable expectation of privacy in his garbage when he placed his garbage adjacent to the sidewalk, rendering it readily accessible to the public. Accordingly, the decision of the court of appeals is reversed, and the case is remanded with instructions to reinstate the judgment of conviction.
JUSTICE QUINN dissents, and JUSTICE LOHR and JUSTICE KIRSHBAUM join in the dissent.