People v. Meakens

2021 IL App (2d) 180991

185 N.E.3d 746

452 Ill.Dec. 341

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Lamar M. MEAKENS, Defendant-Appellant.

No. 2-18-0991

Appellate Court of Illinois, Second District.

Opinion filed April 27, 2021

James E. Chadd, Thomas A. Lilien, and Kerry Goettsch, of State Appellate Defender's Office, of Elgin, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Elizabeth Romano, Assistant State's Attorneys, of counsel), for the People.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Lamar M. Meakens, appeals from his convictions of unlawful possession of a weapon by a felon, a Class 3 felony ( 720 ILCS 5/24-1.1(a), (e) (West 2016)), and unlawful possession of less than 15 grams of a substance containing cocaine ( 720 ILCS 570/402(c) (West 2016)). He contends that the trial court erred in denying his motion to suppress evidence obtained from his cell phone under a warrant that the police procured 16 months after seizing the phone. Defendant argues that the 16-month delay was unreasonable; the State disagrees. We agree with defendant that his fourth amendment rights were violated. The duration of the delay—which was extraordinary under the case law—together with other factors rendered the continued seizure of the phone unreasonable. Therefore, we vacate his convictions and remand the cause.

¶ 2 I. BACKGROUND

¶ 3 Defendant was arrested on May 28, 2017, following a traffic stop. He was later charged with forgery (knowing possession of a counterfeit $100 bill) ( 720 ILCS 5/17-3(a)(3) (West 2016)), multiple weapons offenses including unlawful possession of a weapon by a felon, and possession of less than 15 grams of a substance containing cocaine.

¶ 4 On October 2, 2018, shortly before defendant's scheduled bench trial, the State obtained a warrant to search an iPhone brand smartphone—that is, a cell phone with Internet capability and the ability to run apps. The Naperville police had retained his iPhone since seizing it from him at his May 2017 arrest. Defendant, pro se , moved to suppress the evidence obtained from the iPhone.

¶ 5 The parties agree on appeal that the facts relating to the search had been adduced at earlier hearings on motions to suppress. Just after midnight on May 28, 2017, a Naperville police officer stopped defendant for speeding. Based on an odor in the car, the officer called for a canine search. The searching officers found eight $100 bills (several of which had identical serial numbers), a loaded .40-caliber handgun, and two unlabeled pill bottles, which in turn contained bags that held pills marked Xanax, a green leafy substance, and a white powder. While defendant was in the back of the squad car, he used the iPhone at issue to make a call.

¶ 6 Defendant was arrested and taken to the Naperville Police Department. Police later found a second cell phone (which is not at issue in this appeal), in a backpack in the trunk of defendant's car. Defendant was initially released without charges. His possessions, including his iPhone, were not returned to him (but the record is unclear whether he requested their return).¹ However, on May 30, 2017, police obtained a warrant for his arrest, and defendant was arrested the next day.

¶ 7 At the hearing on defendant's motion to suppress the results of the iPhone search, one of the matters raised was the propriety of the State's delay in getting the warrant. Also discussed was the impact that the seizure of the phone had on defendant's possessory interest. Defendant, who continued to represent himself, asserted that his prior attorney had made several requests for returning his iPhone and other property. The State, however, argued that an iPhone is, by its nature, easily replaceable. Therefore, the possessory-interest impact of seizing a suspect's cell phone is necessarily less than, for instance, seizing a suspect's luggage. The State also argued that defendant's possessory interests were at a minimum while he was held in jail. The court ruled against defendant:

"The next issue that's raised is this question of delay. And obviously the phone is initially seized on or about May 28th of [2017] and the search warrant is not obtained until on or about October 1st, some 16 months later. *** [T]here are federal courts that have held that a search pursuant to a search warrant and, though based on probable cause, may be unconstitutional if police act with unreasonable delay. ***

To determine the reasonableness of the delay ***, the Court essentially looks to three things: the length of time for which the individual was deprived of his or her property; any diminished interest in the property that the individual may have had; and whether the seizure affected the individual's liberty interests, for example, where an officer seizes a traveler's luggage thereby disrupting the individual's travel plans, hence that question. Turning to those factors, the first, the length of time for which the individual was deprived of his or her property, 16 months, that particular factor does cut against the State. *** [W]hen the State decided to obtain a search warrant it was able to *** obtain a search warrant and conduct a forensic analysis in an impressively expedited fashion, a couple of days. So I can't imagine there's any explanation for waiting 16 months. But that's not the sole factor in determining the reasonableness of the delay.

The other two factors that the courts look to cut against the Defendant or in the State's favor. First, the deprivation of the cell phone had no effect on the Defendant's liberty interests. It's obviously something different than luggage in an airport or something along those lines. And, secondly, even accepting the Defendant's memory that either [his former attorneys] requested the return of his cell phone—which *** I can't find *** anywhere in the record; and my notes on my files don't reflect that. But accepting that as true for the moment, even with that, the Defendant had a diminished interest in his cell phone because, as the State argues, the Defendant has essentially been in custody since June 1st of 2017 and you can't *** use a cell phone in the county jail. So when I put those three factors together I don't find the delay unreasonable as, at least, some federal courts have analyzed the question."

In this analysis, the court cited United States v. Howe , 545 F. App'x 64, 66 (2d Cir. 2013), a federal summary order that found that a 13-month delay in obtaining a search warrant for a computer was reasonable when (1) the delay was the result of an officer's mistaken belief that a state search warrant had already been obtained and (2) probable cause existed to believe that the computer contained contraband.

¶ 8 At defendant's bench trial, a witness for the State testified that deleted messages recovered from defendant's cell phone were consistent with the terminology used by a drug dealer making arrangements for the sale of cocaine. In ruling that defendant had possession of the handgun, the court specifically took note of the content of some of the texts the police recovered from the phone. The court found defendant guilty of all counts except the forgery count. The court found that the four weapons counts merged into one count—unlawful possession of a weapon by a felon—for which the court sentenced defendant to 50 months’ imprisonment. The court sentenced defendant to a concurrent term of 36 months’ imprisonment on the drug possession count.

¶ 9 Defendant did not file a posttrial motion. He did file a timely notice of appeal.

¶ 10 II. ANALYSIS

¶ 11 On appeal, the parties limit their arguments to the issue of whether the State's delay in obtaining a search warrant for the cell phone violated defendant's fourth amendment right to be free from unreasonable searches and seizures.

¶ 12 We specifically note that the parties’ framing of the matter narrows the issue strictly to that of the constitutionality of the delay. In particular, the State does not assert that defendant forfeited his argument by failing to raise it in a posttrial motion. Defendant filed no posttrial motion and thus apparently forfeited his claim. See, e.g. , People v. Staake , 2017 IL 121755, ¶ 30, 421 Ill.Dec. 936, 102 N.E.3d 217 ("To preserve a claim of error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion."). However, despite a defendant's failure to file a posttrial motion, we may nevertheless consider constitutional issues, the sufficiency of the evidence, and issues of plain error.² People v. Enoch , 122 Ill. 2d 176, 190, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Here, defendant's argument is essentially constitutional—he contends that the State's delay in obtaining a search warrant for the iPhone violated his fourth amendment right to be free from unreasonable searches and seizures. Moreover, the State may forfeit or waive an issue of forfeiture as to a defendant's arguments. People v. Miller , 2021 IL App (2d) 190093, ¶ 21, ––– Ill.Dec. ––––, ––– N.E.3d –––– ; see also People v. Bridgeforth , 2017 IL App (1st) 143637, ¶ 46, 416 Ill.Dec. 773, 86 N.E.3d 1058 ("The rules of waiver also apply to the State, and where, as here, the State fails to argue that defendant has forfeited the issue, it has waived the forfeiture."). In any event, if we were to ignore the State's waiver of the issue, we would step close to the line of allowing our analysis to become improper advocacy for the State. See, e.g. , People v. Williams , 2020 IL App (3d) 180024, ¶ 51, ––– Ill.Dec. ––––, ––– N.E.3d –––– (a reviewing court must avoid becoming an advocate as to unbriefed issues). Consequently, we address the claim as properly preserved.

¶ 13 We review a ruling on a motion to suppress according to the following standards:

"[T]he trial court's findings of historical fact are reviewed only for clear error, giving due weight to any

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