Docket No. 108441.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

SAMUEL ABSHER, Appellee.

Opinion filed May 19, 2011.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,

Burke, and Theis concurred in the judgment and opinion.

OPINION

Following a stipulated bench trial, the circuit court of St. Clair

County convicted defendant, Samuel Absher, of unauthorized

possession of a controlled substance (720 ILCS 570/402(c) (West

2002)). The appellate court reversed. No. 5–04–0729 (unpublished

order under Supreme Court Rule 23). We granted the State’s petition

for leave to appeal and now reverse the judgment of the appellate

court.

I. BACKGROUND

On March 18, 2004, pursuant to a fully negotiated guilty plea,

defendant was convicted in the circuit court of St. Clair County of

retail theft. In exchange for his plea, defendant was placed on
 

1Defendant was also charged with one count of misdemeanor possession

of cannabis (720 ILCS 550/4(c) (West 2002)). This charge was later

dismissed by the State. 

-2-

probation for a period of two years. The agreement provided that

defendant was to serve the first year in accordance with St. Clair

County’s “Intensive Probation Supervision” program, followed by a

second year of “standard” probation. During the period of “intensive”

probation, defendant agreed to abide by a number of conditions in

addition to the general probation restrictions. The probation order

stated, in relevant part:

“9. *** [Y]ou shall further obey and comply with such

other reasonable rules and regulations as are defined in article

#10.

10. SPECIFIC RULES AND REGULATIONS OF

INTENSIVE PROBATION SUPERVISION: 

* * *

(c) submit to searches of your person, residence,

papers, automobile and/or effects at any time such

requests are made by the Probation Officer, and consent to

the use of anything seized as evidence in Court

proceedings.” 

On May 17, 2004, a St. Clair County probation department

officer–assisted by officers from the Belleville police

department–searched defendant’s residence pursuant to this probation

condition and discovered cocaine and marijuana. Defendant was

thereafter charged with one count of felony unauthorized possession

of a controlled substance (720 ILCS 570/402(c) (West 2002)).1

Prior to trial, defendant filed a motion to suppress the evidence

recovered from his residence. Defendant contended that although he

agreed to the suspicionless search condition contained in article 10(c)

of the probation order, the search nevertheless violated his right to

privacy in his residence because it was not based upon reasonable

suspicion and he had not consented to the officers’ entry. 

At the suppression hearing, St. Clair County probation officer E.J.

Jarvis testified that on March 18, 2004, he met with defendant and
-3-

explained to him the conditions of his probation, including the

provision contained in article 10(c) allowing suspicionless searches of

defendant’s residence. Jarvis stated that defendant posed no questions

regarding the agreement as a whole nor with respect to any specific

provision prior to signing it. In relation to Jarvis’ testimony, defense

counsel stipulated that there was no dispute that defendant had

knowingly and voluntarily agreed to the intensive probation

conditions. 

George Chester, the supervisor of the intensive probation program

at the St. Clair County probation department, testified to observing

defendant on May 17, 2004, when defendant visited the probation

office for a regularly scheduled meeting. Defendant’s conduct led

Chester to suspect that defendant may have been under the influence

of drugs. Based upon this observation, combined with a review of

defendant’s file, Chester believed that defendant “was in possession of

a controlled substance at his residence.” Pursuant to the search

condition contained in article 10(c) of defendant’s probation order,

Chester contacted the State’s Attorney’s office and obtained

authorization to search defendant’s home. Chester then arranged for

officers from the Belleville police department to accompany a

probation officer in executing the search of defendant’s residence later

that evening.

St. Clair County Probation Officer Burdett Rice testified that

Chester instructed him to search defendant’s home later that evening.

Rice and officers from the Belleville police department arrived at

defendant’s residence at approximately 10 p.m. Rice knocked on the

door and informed defendant that the officers were there to perform

a “routine search.” Defendant replied, “no, you are not tonight,” and

tried to close the door. Rice prevented defendant from closing the

door, and forced entry into defendant’s home. The officers secured

defendant and searched the premises, recovering a bag of crack

cocaine, a bag of marijuana, and several lighters and pipes. 

In denying defendant’s suppression motion, the circuit court

observed that “defendant cannot, at his convenience and perhaps

because he is in an untenable position, make a declaration that he

revokes a term of his probation.” The terms of the probation

agreement, combined with the testimony of Chester, rendered the

search reasonable. 
 

2What was referred to as “parole” in Illinois prior to February 1, 1978,

is now termed “mandatory supervised release” (MSR). 730 ILCS 5/5–8–1(d)

(West 2006); see also Wilson, 228 Ill. 2d at 37 n.1. For clarity, Illinois

defendants on MSR shall be referred to as “parolees” in this opinion.

-4-

Thereafter, a stipulated bench trial was conducted, and defendant

was found guilty of unauthorized possession of a controlled substance

(720 ILCS 570/402(c) (West 2002)), and sentenced to two years’

imprisonment. 

The appellate court reversed. No. 5–04–0729 (unpublished order

under Supreme Court Rule 23). Relying upon our decision in People

v. Lampitok, 207 Ill. 2d 231 (2003), which held that a search of a

probationer’s residence must be supported by reasonable suspicion,

the panel determined that the warrantless and suspicionless search of

defendant’s home was improper, and that the circuit court erred in

denying defendant’s suppression motion. 

 The State filed a petition for leave to appeal to this court.

Although we denied the State’s petition, we directed the appellate

court, pursuant to our supervisory authority, to vacate its order and

reconsider its ruling in light of People v. Wilson, 228 Ill. 2d 35 (2008),

which was issued during the pendency of this appeal and held that the

fourth amendment allows a suspicionless search of a parolee.2 The

appellate court again reversed the circuit court’s denial of defendant’s

suppression motion. No. 5–04–0729 (unpublished order under

Supreme Court Rule 23). The panel held that “Wilson does not

change the Lampitok test for determining the reasonability for a search

of a probationer’s residence.” 

We granted the State’s petition for leave to appeal. Ill. S. Ct. R.

315(a) (eff. Aug. 15, 2006).

II. ANALYSIS

When reviewing a circuit court’s ruling on a motion to suppress

evidence, that ruling is assessed under the two-part test adopted by

the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699

(1996). People v. Harris, 228 Ill. 2d 222, 230 (2008). The circuit

court’s factual findings are upheld unless they are against the manifest

weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431
-5-

(2001). The reviewing court then assesses the established facts in

relation to the issues presented and may draw its own conclusions in

deciding what relief, if any, should be granted. Harris, 228 Ill. 2d at

230. Accordingly, this court reviews de novo the ultimate legal

question of whether suppression is warranted. People v. Luedemann,

222 Ill. 2d 530, 542-43 (2006). 

The fourth amendment to the United States Constitution guards

the “right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.” U.S. Const.,

amend. IV; accord Ill. Const. 1970, art. I, §6. A “search” occurs when

“an expectation of privacy that society is prepared to consider

reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113

(1984). Although the fourth amendment protects an individual’s

privacy in a variety of settings, “[i]n none is the zone of privacy more

clearly defined than when bounded by the unambiguous physical

dimensions of an individual’s home.” Payton v. New York, 445 U.S.

573, 589 (1980). Because one’s right to retreat into his or her home

without unreasonable government interference is a core principle of

the fourth amendment (Kyllo v. United States, 533 U.S. 27, 31

(2001)), law enforcement officers generally may not enter, much less

search, a person’s home without a warrant absent exigent

circumstances. Payton, 445 U.S. at 590. 

The Supreme Court, however, has set forth limited exceptions to

the warrant requirement. For example, consent has long been an

exception to the need for a search warrant. Schneckloth v.

Bustamonte, 412 U.S. 218, 222 (1973). In addition, a warrantless

search may be considered reasonable upon a showing of “special law

enforcement needs, diminished expectations of privacy, [and] minimal

intrusions.” Illinois v. McArthur, 531 U.S. 326, 330 (2001). Indeed,

where an individual–such as defendant–is serving a term of probation,

the restrictions placed upon his conduct due to the terms of his

probation agreement results in his having a “significantly diminished”

expectation of privacy. United States v. Knights, 534 U.S. 112, 119-

20 (2001).

The State contends that because defendant, as part of a fully

negotiated guilty plea, freely agreed to the suspicionless search

condition contained in article 10(c) of his probation order, he thereby

knowingly waived his rights under the fourth amendment to challenge
-6-

the reasonableness of any search conducted in accordance with this

provision. Although the State acknowledges that Lampitok held that

the specific probation search condition in that case did not constitute

such a waiver, it asserts that applying that holding under these facts

provides defendant with the benefit of the bargain, i.e., serving a term

of probation rather than imprisonment, but strips the State of the

benefit that made probation rather than imprisonment a mutually

advantageous option: its ability to closely supervise defendant to

ensure successful completion of his probation period and the need to

protect the public while defendant is on probation. Accordingly, the

State requests that we revisit this issue, and adopt the holding of the

United States Court of Appeals for the Seventh Circuit in United

States v. Barnett, 415 F.3d 690 (7th Cir. 2005), which concluded that

a probationer’s agreement to the identical suspicionless search

condition at issue in this appeal constituted a prospective waiver of his

privacy rights. We agree with the State.

The facts in Barnett mirror those in the instant appeal. Barnett,

similar to defendant, pled guilty to criminal offenses in the circuit

court of St. Clair County. United States v. Barnett, No.

03–CR–30170, 2004 U.S. Dist. LEXIS 3089, at 2 (S.D. Ill. Feb. 27,

2004). As part of his fully negotiated guilty plea, Barnett–like

defendant–agreed to abide by certain conditions of “intensive

probation supervision” in lieu of prison, including the identical

suspicionless search provision at issue in this appeal, which was also

labeled as article 10(c) in Barnett’s probation order. Id. at 2-3.

Further, like defendant, Barnett’s behavior during a visit to the St.

Clair County probation office was observed by Chester, who believed

it indicated Barnett was involved in illegal activity. Id. at 4. Again,

mirroring the instant appeal, Chester looked into Barnett’s criminal

background, determined that illegal contraband or activity was to be

found at Barnett’s home, and directed a probation officer to search

Barnett’s residence later that evening. Id. That officer, accompanied

by two sheriff’s department deputies, conducted a search of Barnett’s

home and found weapons, which led to Barnett facing federal charges

for being a felon in possession of a firearm. Id. at 5. Barnett filed a

motion to suppress evidence, alleging that the search violated the

fourth amendment because it was conducted without a warrant and

the officers had neither probable cause nor reasonable suspicion that
-7-

he was involved in criminal activity or conduct which violated the

terms of his probation. Id. at 1-2.

The United States district court rejected Barnett’s arguments.

Instead, the court agreed with the government that, by accepting the

terms of intensive probation supervision as part of his fully negotiated

guilty plea, Barnett voluntarily and knowingly waived his fourth

amendment rights in exchange for not having to serve time in prison.

Id. at 7-11. Accordingly, the district court denied Barnett’s

suppression motion. 

The Seventh Circuit affirmed. The court first noted that the

Supreme Court has made it clear that where a probationer accepts a

broad probation condition–such as in the matter at bar–he therefore

has a significantly diminished expectation of privacy. Barnett, 415

F.3d at 691 (citing Knights, 534 U.S. at 119, 122). A probationer may

waive this already diminished expectation of privacy, according to

Barnett, “provided that the waiver is knowing and intelligent.” Id. 

Barnett grounded this holding in its observation that plea bargains

are a form of contract, and “like other contracts are presumed to make

both parties better off and do no harm to third parties.” Id. at 692.

The court explained the benefits reaped by both Barnett and the State

as a result of their agreement:

“Barnett didn’t want to go to prison. He preferred to sacrifice

the limited privacy to which he would have been entitled ***

just as convicted defendants prefer home confinement to

confinement in a jail or prison even if the home confinement

involved monitoring the defendant’s activities inside the home

and thus invades his privacy. And since imprisonment is a

greater invasion of personal privacy than being exposed to

searches of one’s home on demand, the bargain that Barnett

struck was not only advantageous to him but actually more

protective of Fourth Amendment values than the alternative of

prison would have been. It was also advantageous to the

government, which wouldn’t have agreed to it otherwise. ***

*** Nothing is more common than an individual’s

consenting to a search that would otherwise violate the Fourth

Amendment, thinking that he will be better off than he would

be standing on his rights. Often a big part of the value of a

right is what one can get in exchange for giving it up. Here,
-8-

given the alternative facing him of a prison sentence, Barnett

gave up nothing.” (Emphasis in original.) Id. at 691-92. 

The court also rejected Barnett’s contention that enforcing a

blanket consent invites abuse on the part of law enforcement, stating

that this not only ignores the even greater deprivation of privacy

Barnett faced if he were to be imprisoned, but also that because a plea

bargain is a contract, it contains implicit terms which necessarily

prevent absurd results. The court found that the purpose of the waiver

“was not to permit probation officers to harass probationers, but to

excuse the officers from having to justify a search by establishing that

it was based on probable cause, suspicion, or some other standard that

might invite litigation,” and that it is reasonable to assume that “the

‘contract’ implicitly forbids–equivalently, the waiver of Fourth

Amendment rights does not extend to–searches that have no possible

law-enforcement objective, or that so far exceed any legitimate

enforcement needs as to compel an inference that the purpose and

only effect were harassment.” Id. at 692. Accordingly, the Seventh

Circuit affirmed the district court’s denial of Barnett’s suppression

motion.

Barnett’s contract law analysis and conclusion is supported by our

own precedent. Beginning with our 1996 decision in People v. Evans,

174 Ill. 2d 320 (1996), we have repeatedly held that fully negotiated

guilty pleas such as the one at bar are governed by principles of

contract law. Accordingly, we have determined that to allow a

defendant to unilaterally modify the terms of a fully negotiated plea

agreement while holding the State to its part of the bargain “flies in

the face of contract law principles” (id. at 327), because “the guilty

plea and the sentence ‘go hand in hand’ as material elements of the

plea bargain” (id. at 332). Consequently, in order to avoid

“ ‘gamesmanship of a most offensive nature’ ” (id. at 327), we held

that a defendant may not seek to unilaterally reduce his sentence while

holding the State to its part of the bargain (id.). Applying contract

principles, we determined that a defendant, therefore, may seek to

modify the terms of a fully negotiated guilty plea only by withdrawing

that plea and vacating the judgment, thereby returning the parties to
 

3We contrasted the negotiated plea at issue with an “open” plea, in which

a defendant pleads guilty without receiving any promises from the State in

return. Evans, 174 Ill. 2d at 332. We held that in the case of an open plea,

because the State offers the defendant no inducements to plead guilty,

defendants who enter such pleas may challenge their sentences without being

required to also withdraw their guilty pleas. Id. 

-9-

the status quo ante. Id. at 332.3 Subsequent to Evans, we have

repeatedly held that it is the existence of a sentencing concession on

the part of the State which triggers the application of contract

principles. See, e.g., People v. Morris, 236 Ill. 2d 345 (2010) (noting

that Evans held that under principles of contract, both the State and

defendant are bound to the terms of a plea agreement); People v.

Diaz, 192 Ill. 2d 211 (2000) (principles of contract law set forth in

Evans apply where State agreed not to seek extended-term sentences);

People v. Linder, 186 Ill. 2d 67 (1999) (contract principles discussed

in Evans apply where defendant pled guilty in exchange for a cap on

the length of his sentence); People v. Clark, 183 Ill. 2d 261 (1998)

(Evans’ contract analysis applies where defendant negotiated his guilty

plea, but parties disagreed on whether sentences would be served

consecutively); c.f. People v. Lumzy, 191 Ill. 2d 182 (2000) (Evans’

contract principles do not apply where the agreement concerns only

charges and not sentences).

We find this case to be analogous to Evans and, therefore,

similarly governed by principles of contract law. Here, defendant and

the State entered into a fully negotiated plea agreement in which

defendant pled guilty to a charge in exchange for the State’s

recommendation of a specific sentence: two years’ probation, with the

first year being “intensive.” Faced with the possibility of imprisonment

and a complete loss of freedom and privacy rights, defendant opted to

avoid incarceration and agree to probation, including a year of the

more restrictive “intensive” version and its greater invasion of privacy.

This bargain was advantageous to defendant, as he avoided jail time

and gave up nothing by agreeing to probation and its restrictions. The

bargain was also advantageous to the State, in that it assured that

defendant was required to comply with the more restrictive conditions

of intensive probation for the first year. It is undisputed that the

agreement was explained to defendant, he understood its provisions
-10-

and he freely signed the form.

 Defendant’s actions in subsequently challenging the validity of the

search of his home conducted pursuant to article 10(c) of his

probation agreement are analogous to those of a defendant who enters

into a fully negotiated guilty plea and thereafter seeks to unilaterally

reduce his sentence by filing a motion for reconsideration without

withdrawing the plea. In both instances, the defendant wishes to hold

the State to its part of the bargain while not adhering to his own part

of the agreement, thereby raising the specter of gamesmanship similar

to that discussed in Evans. Just as the specific sentence and plea went

“hand in hand” as material elements of the plea bargain in Evans, so,

too, did the plea and the conditions of probation at issue here. 

Defendant, in his brief, does not address Barnett substantively, but

asks that we adhere to our position in Lampitok that the probationer’s

agreement in that case to a warrantless search condition did not

constitute prospective consent.

We find Lampitok to be factually distinguishable from this case.

First, we note the significant differences between the probation

condition at issue there and the condition agreed to by defendant at

bar. In Lampitok, the probationer was subject to a probation order

which provided that she “shall submit to a search of her person,

residence, or automobile at any time as directed by her Probation

Officer to verify compliance with the conditions of this Probation

Order.” (Internal quotation marks omitted.) Lampitok, 207 Ill. 2d at

236. Reviewing the “shall submit” language used in that provision, we

held that it did not constitute a prospective consent, as it only charged

the probationer with the duty to submit to a search when directed to

do so, and she retained an element of choice as to whether to comply

with the condition or face possible revocation of her probation. Id. at

261-62.

In contrast, the language used in defendant’s probation order is far

more restrictive with regards to defendant’s conduct, and far more

restrictive with respect to its scope. Defendant is required to “obey

and comply” with the “rules and regulations of intensive probation

supervision,” including that he “[s]ubmit to searches of [his] person,

residence, papers, automobile and/or effects at any time such requests

are made by the Probation Officer, and consent to the use of anything

seized as evidence in court proceedings.” Unlike in Lampitok where
 

4We note that this case does not present the situation where a defendant

was involuntarily placed on probation, required to submit to conditions

imposed by the sentencing judge, or had no option to refuse the conditions.

Our decision today is limited to the specific facts presented, and we express

no opinion with respect to other factual situations.

-11-

we held that the search condition “affirmatively required [the]

probation officer to ask [the probationer’s] consent” to a search

limited to verify her compliance with conditions of her probation (id.

at 262), here, defendant has agreed to obey and comply with any

search conducted by a probation officer, and has also explicitly

provided “consent” to the use of anything seized during such search

as evidence in court proceedings. It is clear that defendant’s search

condition implicates far more than only the probation revocation

discussed in Lampitok. Accordingly, the search conditions set forth in

these cases are factually distinguishable.

Lampitok is further distinguishable to the extent that, unlike here,

defendant Lampitok was not the probationer subject to the search

condition. Instead, Lampitok was an acquaintance who occupied a

motel room with the probationer at the time probation officers

searched the premises, and who was arrested as a result of the

discovery of drugs and weapons. Id. at 235-37. Finally, we also note

that Lampitok preceded Barnett, and, therefore, we did not have the

benefit of its analysis at the time of that decision. 

Thus, we have not had prior occasion to answer the question

squarely presented in this appeal. Because Barnett not only addresses

identical facts to those in the case at bar, but also mirrors our own

precedent establishing that contract principles govern a fully

negotiated guilty plea, we find Barnett persuasive. In addition, we

believe that on these facts this approach also promotes the dual

purpose of the probation system: the rehabilitation of the probationer

and the protection of the public. Griffin v. Wisconsin, 483 U.S. 868,

875 (1987). We therefore hold that under the specific facts in this

appeal, defendant’s agreement to the suspicionless search condition in

article 10(c) of his probation order constituted prospective consent.4

Because we find that defendant waived his fourth amendment

rights by freely agreeing to the suspicionless search condition set forth
-12-

in article 10(c) of his probation order, we need not address the

remainder of the State’s arguments in support of its position that the

search was valid.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the

appellate court and affirm the judgment of the circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.