People v. Butler

47 N.E.3d 332

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Robert BUTLER, Defendant–Appellant.

No. 1–13–1870.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 24, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Christopher Kopacz, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Veronica Calderon Malavia, Christine Cook, and Edward Wasilewski, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice COBBS delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Robert Butler was found guilty of second degree murder pursuant to section 9–2(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/9–2(a)(2) (West 2010)), and was sentenced to 13 years in prison. On appeal, defendant asserts that the trial court erred in denying his pretrial motion to suppress a text message found during a warrantless search of his cell phone.

¶ 2 BACKGROUND

¶ 3 The record reveals that defendant and codefendant Cordero Amos,¹ who is not a party to this appeal, were charged with eight counts of first degree murder, two counts of home invasion and one count of residential burglary in relation to a shooting that occurred on October 13, 2010, which resulted in the death of Lawrence Stubbs. Prior to trial, defendant filed a motion to suppress, asserting that a police officer seized his cell phone and retrieved text messages from it without a warrant, probable cause, consent, or a showing of exigency.

¶ 4 At the hearing on the motion, Chicago police officer Thomas Shannon testified that around noon on October 13, 2010, he was in the vicinity of Little Company of Mary Hospital completing paperwork relating to a car accident, when he heard a radio dispatch regarding a shooting on the 8900 block of South Bishop. The suspected offender was described as a black male wearing black clothing. Shortly thereafter, Officer Shannon saw a gray car speed into the hospital driveway, stop swiftly, and then drive away after a passenger in the car pushed another passenger out of the back seat. Officer Shannon called in the license plate number of the car, and then approached the person, who he identified in court as defendant, to check for injuries. Defendant had been shot in the buttocks and was bleeding, but was able to speak and understand what was said to him. Officer Shannon asked defendant what had happened, and defendant said that he had been shot at 71st and Ashland. Officer Shannon contacted his dispatch and asked if any shootings had been reported in that area, but did not receive a response at that time.

¶ 5 Officer Shannon further testified that hospital staff then took defendant inside the hospital to the emergency room, and he accompanied them; however, he was not in the immediate vicinity for the entire time the hospital staff members were speaking with defendant. Although defendant was in “pretty bad shape” at that time, he was able to speak and never lost consciousness. In order to tend to his medical needs, hospital staff gathered all of defendant's clothes and personal belongings, and it was at this point that Officer Shannon noticed that defendant had a cell phone. Officer Shannon testified that he obtained the cell phone because he intended to call someone in defendant's family, but acknowledged that (1) he did not know whether hospital staff had already contacted defendant's next of kin, (2) he did not ask hospital staff whether they had done so or whether defendant had provided them with contact information for his next of kin, (3) he did not have a search warrant to go into defendant's cell phone and defendant did not give him verbal or written consent to do so, and (4) defendant did not ask him to notify his next of kin.

¶ 6 Officer Shannon further testified that approximately five minutes after defendant's arrival at the hospital, he took defendant's cell phone outside the hospital. He reiterated that he intended to contact someone in defendant's family, and testified that because he was not familiar with that particular phone, he hit a button that caused him to “end[ ] up getting into the text messages.” He then saw a text message that had been sent approximately two hours earlier that day to someone named “Blackee,” and which stated, “I needa pipe cuzz, asap [sic ].” Once he read this message, he “immediately stop[ped] playing with [defendant's] phone.” It was at that point that he received a response from dispatch informing him that there was no record of a shooting at 71st and Ashland.

¶ 7 Officer Shannon testified that he then requested that detectives and an evidence technician be sent to the hospital to investigate. The factors that caused him to do so included (1) the dispatch he heard earlier regarding the shooting at 89th and Bishop, (2) the fact that defendant was wearing black clothes and thus matched the description of the suspected shooter at 89th and Bishop, (3) the contents of the text message he read on defendant's cell phone, and (4) defendant's inconsistent story regarding where he had been shot. He then went and spoke to defendant and told him that there had been no shooting at 71st and Ashland, at which point defendant told him that he was involved in the shooting at the 8900 block of South Bishop. Officer Shannon denied that when defendant first arrived at the hospital he immediately thought defendant might be the offender from that shooting.

¶ 8 When detectives arrived at the hospital, Officer Shannon gave them all of defendant's possessions, including the cell phone. Officer Shannon testified that based on the text message he saw on the phone, detectives subsequently secured a search warrant to go into the phone itself. Officer Shannon further testified that he did not place handcuffs on defendant or take him into custody, and that he would have allowed defendant to leave the hospital at any point in time. The court took notice that one must push different buttons on a cell phone to access contacts and text messages.

¶ 9 Defendant testified and acknowledged that he initially told Officer Shannon that he had been shot at 71st and Ashland. Defendant further testified that upon arriving at the emergency room, a nurse asked him if he wanted to call anyone, and he told her to call his sister. He never asked the police to call someone from his cell phone and he never saw police going through his cell phone.

¶ 10 The court denied defendant's motion to suppress the text message found on his cell phone. In doing so, the court reasoned that at the time Officer Shannon looked at defendant's phone, it was not a custodial event and Officer Shannon was not looking for evidence of criminality, but rather, was merely looking for a way to contact defendant's family because defendant appeared to be in some distress and “seemed to not be in a position to communicate well by himself.” The court further stated that “[defendant] had already made some misrepresentations perhaps about where the shooting had taken place. The officer is just doing a cursory checking out.” The court also noted that “pipe” is another term for “gun.”

¶ 11 At trial, C'Erica Rutledge, a friend of Stubbs', testified that on October 13, 2010, Stubbs came to her home at 8954 South Bishop to pick up his cell phone. After she gave him the phone, Stubbs began to leave the house and she heard him open the screen door. At that point, Rutledge heard gunshots, so she fell to the floor. In all, she heard approximately 15 gunshots. After the gunshots stopped, Stubbs re-entered the house, showed her a gunshot wound in his back, and said “they shot me.” Stubbs did not tell her anything further about what had happened. Rutledge testified that she did not see a gun next to Stubbs or in his possession.

¶ 12 William White, a friend of Stubbs', testified that at approximately 11 a.m. on October 13, 2010, he was walking near 89th and Bishop when he heard about 25 gunshots. Once the gunshots stopped, he saw a “greenish” Dodge Stratus come out of a nearby alley. White then saw two men he did not recognize running in his direction. Both men were wearing black clothing and one was wearing a hat. One of the men, whom White identified in court as defendant, was dark skinned and the other man, whom White identified in court as codefendant, had lighter skin. White saw both men get into the backseat of the Dodge Stratus, and then the driver of the car reversed and drove down 89th street toward Racine. White acknowledged that he did not see the shooting.

¶ 13 White further testified that later that afternoon, he was arrested for possessing a gun; however, he had not been in possession of that gun at the time of the shooting. At the police station, he told police what he had seen earlier that day near 89th and Bishop. Police showed him a photo array, and he identified defendant as the darker skinned man he saw running from 89th and Bishop following the gunshots. The next day, White viewed a physical lineup and made the same identification of defendant. Upon viewing a second photo array, White tentatively identified codefendant as the other man he saw running from the scene.

¶ 14 Pacola Bibbs, a Cook County sheriff's department employee, testified that on October 13, 2010, she and her husband were visiting her mother, who lived at 8939 South Bishop. Bibbs' husband had just exited the house, when she heard two or three gunshots. Bibbs feared that her husband had been shot, so she went outside to check on him, and saw two men running towards the train tracks. One of the men was tall and dark skinned and the other one was shorter and light skinned and was carrying a gun. Bibbs heard a female screaming for help from a nearby house, so she ran to help her and called 911. When police arrived, Bibbs told them what she had seen. The following day, she saw a photo array at the police station and identified a picture of codefendant as the lighter...