People v. Meakens

2021 IL App (2d) 180991

• Court: Appellate Court of Illinois
• Decided: April 27, 2021
• Docket: 2-18-0991
• Status: Published

Opinion

2021 IL App (2d) 180991 No. 2-18-0991 Opinion filed April 27, 2021 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-1070 ) LAMAR M. MEAKENS, ) Honorable ) Liam C. Brennan, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Schostok and Birkett concurred in the judgment and opinion.

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. 2021 IL App (2d) 180991

¶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.

1 We note that a cell phone is not contraband; therefore, defendant’s cell phone should have

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¶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. ***

been returned to him upon his initial release. See 725 ILCS 5/108-2 (West 2016).

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[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

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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 (“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 (1988). Here, defendant’s argument is

2 We further note that People v. Foster, 171 Ill. 2d 469 (1996), makes clear that section

116-1(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-1(b) (West 2016)) “does

not make filing a written motion for a new trial a prerequisite to consideration on appeal.” Foster,

171 Ill. 2d at 472. Here, although the defendant was pro se, he was never told that he was required

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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; see also People v. Bridgeforth, 2017 IL App

(1st) 143637, ¶ 46 (“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 (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 inferences drawn from those facts by the fact finder, and reversal is warranted

only when those findings are against the manifest weight of the evidence. [Citation.]

However, a reviewing court remains free to undertake its own assessment of the facts in

relation to the issues and may draw its own conclusions when deciding what relief should

be granted. [Citation.] A trial court’s ultimate legal ruling as to whether suppression is

to file a posttrial motion. Although the trial court discussed matters of appeal and the appointment

of the appellate defender with defendant, it did not reference defendant’s obligation to file a motion

for a new trial setting out his contentions of error. Enoch presupposes that the defendant was aware

of the requirements of section 116-1. There can be no forfeiture or waiver under the circumstances

here.

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warranted is subject to de novo review. [Citation.]” People v. Hackett, 2012 IL 111781,

¶ 18.

Here, since the facts are not in dispute, our review is strictly de novo. See People v. Topor, 2017

IL App (2d) 160119, ¶ 14.

¶ 14 The fourth amendment to the United States Constitution guarantees 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. A seizure that was initially reasonable may become unlawful

because of its duration; thus, “once law enforcement officers have seized an item, they must obtain

a search warrant within a reasonable time.” People v. McGregory, 2019 IL App (1st) 173101, ¶ 17.

When officers fail to seek a search warrant for a seized item, at some point the delay becomes

unreasonable and is actionable under the fourth amendment. United States v. Burgard, 675 F.3d

1029, 1032 (7th Cir. 2012).

¶ 15 When we decide whether a seizure has become unreasonable, we “ ‘ “must balance the

nature and quality of the intrusion on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the intrusion.” ’ ” McGregory, 2019 IL

App (1st) 173101, ¶ 18 (quoting United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011), quoting

United States v. Place, 462 U.S. 696, 703 (1983)).

“On the individual’s side, the primary concern is with the invasion of the individual’s

possessory interest in the property, as a seizure does not generally affect an individual’s

privacy or liberty interests. [Citation.] The longer that the seizure lasts, the greater the

invasion on the individual’s possessory interest. [Citation.] Delays also affect the integrity

of the criminal justice system in that they prevent the judiciary from promptly evaluating

and correcting improper seizures. [Citation.] In addition, an individual’s assertion of his or

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her possessory interest in the subject property, i.e., by checking on the status of the

procedure or requesting its return, is helpful—although not essential—evidence that the

seizure of the property affected the individual’s possessory interests. [Citation.]” (Internal

quotation marks omitted.) McGregory, 2019 IL App (1st) 173101, ¶ 18.

¶ 16 Balanced against the individual’s possessory interest is the State’s interest in upholding the

seizure. McGregory, 2019 IL App (1st) 173101, ¶ 19. That interest is greater in seizures based on

probable cause than in those resting only on reasonable suspicion; an individual has no possessory

interest in property seized by consent. McGregory, 2019 IL App (1st) 173101, ¶ 19. “Thus, greater

delays are tolerated in cases involving probable cause seizures than those involving reasonable

suspicion seizures,” and the “greatest delays *** will be tolerated in cases where the seizure was

based on consent.” McGregory, 2019 IL App (1st) 173101, ¶ 19. The reasonableness of a seizure’s

length depends on the totality of the circumstances. E.g., United States v. Sullivan, 797 F.3d 623,

633 (9th Cir. 2015).

¶ 17 Further, the diligence of the police in pursuing their investigation is another factor that a

court must consider when it balances the interests of the State and the individual. See McGregory,

2019 IL App (1st) 173101, ¶ 20 (citing Burgard, 675 F.3d at 1033). “When police act with

diligence, courts can have greater confidence that the police interest is legitimate and that the

intrusion is no greater than reasonably necessary,” but when “police neglect to seek a warrant

without any good explanation for that delay, it appears that the state is indifferent to searching the

item and the intrusion on an individual’s possessory interest is less likely to be justifiable.”

Burgard, 675 F.3d at 1033.

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¶ 18 Given the extraordinary delay in seeking a warrant and the State’s complete lack of

diligence, we conclude that defendant’s possessory interest in the phone outweighed the interest

the State had based on its probable cause to search the phone.

¶ 19 We start by considering the State’s interests. The State appears to assume without arguing

that probable cause to seize the phone existed at all relevant times. Defendant does not contest that

probable cause existed for the search of his phone. He does not even address the basis for the

phone’s seizure, which may have changed from his initial arrest to his second arrest. If defendant

wished to claim that the seizure was based on less than probable cause, he needed to make that

argument explicitly. Consequently, the point is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May 25,

2018) (“Points not argued [in the appellant’s brief] are forfeited and shall not be raised in the reply

brief, in oral argument, or on petition for rehearing.”). On the other hand, nothing in the record

suggests that defendant consented to the seizure. We thus treat the seizure as one based on probable

cause, giving the State the intermediate level of interest.

¶ 20 The State’s diligence in seeking a search warrant also goes to the measure of its interest.

Here, the State cannot claim any diligence. It waited until just before trial to obtain a warrant,

about 15 months, and it did not explain its delay. We are aware of no delay longer than 13 months

that a court has deemed reasonable. As mentioned, the trial court here considered as persuasive the

Second Circuit’s summary order in Howe, in which it deemed reasonable a delay of about 13

months. The facts in Howe are unlike those here—the government in Howe had a partial

explanation for the delay—the officer was under the mistaken impression that a search warrant

already existed. Moreover, the delay in Howe appears to be something of an outlier in the case

law. In McGregory, in which the First District found a delay of eight months to be unreasonable,

the reviewing court noted that neither party had alerted it to any case with a reasonable delay longer

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than three months. The First District cited Stabile, 633 F.3d at 235-36, where the Third Circuit

deemed a delay of almost three months to be reasonable when the delay was caused by the

investigating Secret Service agent’s assignment to the presidential protection detail and the seizure

was by third-party consent. With that background, the McGregory court deemed an eight-month

delay to be “extraordinary.” McGregory, 2019 IL App (1st) 173101, ¶ 22. The delay here, which

was twice as long, is thus even more extraordinary. Like the Maui Police Department in United

States v. Uu, 293 F. Supp. 3d 1209, 1216 (D. Haw. 2017), the police here, “[r]ather than working

to promptly present a search warrant application to a judicial officer, *** acted at [their] leisure.”

¶ 21 We turn now to defendant’s interests. In the case of seizure of property, the interest at issue

is generally possessory. McGregory, 2019 IL App (1st) 173101, ¶ 18. We conclude that the trial

court gave insufficient weight to defendant’s possessory interest in the phone. Primarily, the court

incorrectly concluded that, because he could not use his phone while jailed, his possessory interest

in the phone was effectively nonexistent. The court also erred in considering whether the phone’s

seizure affected defendant’s liberty interests.

¶ 22 The deprivation caused by the seizure of a suspect’s property is, for purposes of a

reasonableness inquiry, a measure of the suspect’s possessory interest in that property. See United

States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009) (per curiam) (the seizure of a personal

computer was a significant interference with the suspect’s possessory interest largely because of

the tendency to rely on the information stored on such devices). The United States Supreme Court,

in Riley v. California, 573 U.S. 373, 393-94 (2014), recognized the extraordinary difference

between a cell phone and other potential objects of searches. The Riley Court’s focus was on the

privacy implications of cell phone data, but the discussion shows how, by 2014, cell phones were

already distinctive in their many uses:

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“Cell phones differ in both a quantitative and a qualitative sense from other objects

that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading

shorthand; many of these devices are in fact minicomputers that also happen to have the

capacity to be used as telephones. They could just as easily be called cameras, video

players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps,

or newspapers.

One of the most notable distinguishing features of modern cell phones is their

immense storage capacity. Before cell phones, a search of a person was limited by physical

realities and tended as a general matter to constitute only a narrow intrusion on privacy.

[Citation.] Most people cannot lug around every piece of mail they have received for the

past several months, every picture they have taken, or every book or article they have

read—nor would they have any reason to attempt to do so. And if they did, they would

have to drag behind them a trunk of the sort held to require a search warrant *** rather

than a container the size of the cigarette package *** [which did not require a warrant].

***

Finally, there is an element of pervasiveness that characterizes cell phones but not

physical records. Prior to the digital age, people did not typically carry a cache of sensitive

personal information with them as they went about their day. Now it is the person who is

not carrying a cell phone, with all that it contains, who is the exception. According to one

poll, nearly three-quarters of smart phone users report being within five feet of their phones

most of the time, with 12% admitting that they even use their phones in the shower.” Riley,

573 U.S. at 393-95.

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Our reliance on cell phones—particularly on the multifunctional cell phones now typically called

“smartphones”—has only increased since the Supreme Court decided Riley in 2014.

¶ 23 The pervasiveness of cell phones that the Riley Court noted is a fair indicator of the

disruptiveness of the seizure of such a phone, particularly a smartphone, at least if it is not replaced.

Here, the State argues that, because cell phones in general are easily replaced, the seizure of a

smartphone does not place a high burden on the person from whom it is taken. That is not a safe

assumption. To be sure, some of the personal data accessed from a smartphone may be in “cloud”

storage—“stored on remote servers rather than on the device itself.” Riley, 573 U.S. at 397. As

noted in Riley, “users often may not know whether particular information is stored on the device

or in the cloud, and it generally makes little difference.” Riley, 573 U.S. at 397. However, if a

smartphone is seized, only the data in the cloud is potentially accessible to the user and then not

always conveniently. For a typical person, only the seizure of a personal vehicle is likely to cause

equal or greater disruption. Moreover, the court’s ruling neglected financial issues. A smartphone

is, again vehicles aside, often one of a person’s more expensive possessions. We do not assume

that everyone can easily afford to replace one, especially without having the old one to trade in.

For these reasons, we deem that a suspect generally has a strong interest in the rapid return of a

smartphone.

¶ 24 The discussed uses of a smartphone also require us to reject the trial court’s conclusion that

jailing diminishes an individual’s possessory interest in a smartphone to near nothing. A

smartphone carries with it a history of a person’s communications. Therefore, if a detainee can

give another access to his or her smartphone, that person can serve much more effectively as the

detainee’s agent than would be possible if the phone were seized, thus limiting the disruptive effect

of the detention. By contrast, a person released on bond will likely be inconvenienced but generally

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not be rendered incommunicado. It is thus possible that the seizure of a smartphone is more

disruptive to a pretrial detainee than to a person who has been released. We thus cannot dismiss

defendant’s possessory interest as inherently minimized by his jailing.

¶ 25 The State relies on United States v. Wright, No. 4:08-cr-18, 2010 WL 841307, at *3, 9-10

(E.D. Tenn. Mar. 3, 2010), which held that a defendant has a diminished possessory interest in an

electronic device that has been searched when the device itself is evidence of an offense and not

merely a “container” for evidence. The State notes that, at defendant’s trial, its witness testified

that suspects found with contraband drugs and weapons often use cell phones to photograph the

contraband. The State argues, “While [defendant’s] possession of [the] cell phone would ordinarily

have no evidentiary value apart from the contents, in this circumstance, possession of a cell phone,

and its later discovered contents, corroborated [the inference that] Defendant knowingly possessed

contraband.”

¶ 26 This rule, applied to the circumstances here, does not favor the State. The State’s own

argument shows why this is so. It was only the “later discovered contents” that gave the phone

evidentiary value. If the police had discovered within days of defendant’s arrest that the phone

contained only innocuous texts with defendant’s family and cat pictures, then, by the State’s own

argument, the phone would have lacked evidentiary value. That discovery would thus remove

justification for the phone’s continued seizure. This appears to be an instance of the State

attempting to justify the seizure by its fruits. Such arguments are attractive but mistaken; the

exclusionary rule would be meaningless if it only excluded the results of fruitless searches.

¶ 27 The State asks that we, like the trial court, give weight to the fact that defendant’s liberty

interests were unaffected by the seizure of his phone. We decline. As McGregory noted, when

courts consider how an individual’s interests are impacted by the seizure of his property, “the

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primary concern is with the invasion of the individual’s possessory interest in the property, as a

seizure does not generally affect an individual’s privacy or liberty interests.” (Emphasis added.)

McGregory, 2019 IL App (1st) 173101, ¶ 18. We agree with McGregory that cases in which liberty

interests are affected are best viewed as a qualitatively different class of case that should be

analyzed under the rules concerning detentions of persons.

¶ 28 Citing United States v. Martin, 157 F.3d 46 (2d Cir. 1998), the State implies that the seizure

of defendant’s cell phone is more like “[t]he situation of a package intercepted and its delivery

delayed” than like “a seizure of luggage which disrupts travel plans.” In Martin, the Second Circuit

contrasted the facts of its case, concerning an 11-day probable-cause seizure of a package, with

the facts in United States v. Place, 462 U.S. 696 (1983), in which a reasonable-suspicion seizure

of a traveler’s luggage in an airport prevented him from continuing his travels. The Martin court

was correct to draw the contrast. But, again, we reject the trial court’s reliance on how the seizure

impacted defendant’s personal liberty. The analysis in Place treated the seizure of a traveler’s

luggage as the equivalent of a temporary seizure of the person under Terry v. Ohio, 392 U.S. 1

(1968). See Place, 462 U.S. at 702, 708. In language that Place quoted with approval, Professor

Wayne R. LaFave addressed the potential Terry implications of the seizure of a traveler’s luggage:

“ ‘[In instances] when the authorities do not make it absolutely clear how they plan to

reunite the suspect and his possessions at some future time and place, seizure of the object

is tantamount to seizure of the person. This is because that person must either remain on

the scene or else seemingly surrender his effects permanently to the police.’ ” (Emphasis

added.) Place, 462 U.S. at 708 n.8 (quoting 3 Wayne R. LaFave, Search and Seizure § 9.6,

at 72 (1st ed. Supp. 1982)).

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Thus, because the basis for the detention of the Place defendant’s luggage was reasonable

suspicion, the standards for an appropriate length of seizure were those for a Terry stop. The lesson

of Place is that particular circumstances can require a seizure of property to be considered under

the standards for detentions of the person. We suspect that the typical case involving seizure of

property will not amount to a detention of the person. If the seizure does reach that threshold, the

court should apply the standards for a detention. In all other cases, the expectation is that a

suspect’s liberty interests are not implicated. 3

¶ 29 Our conclusion that the delay in seeking a search warrant was unreasonable is consistent

with the First District’s holding in McGregory. There, the Chicago Police Department (CPD)

seized equipment associated with credit card fraud, including several computers on May 13, 2013.

The CPD held it until November 1, 2013, when the United States Secret Service took it as part of

a credit card fraud investigation. The Secret Service obtained warrants to search the computers’

contents in January 2014; the search resulted in the defendant being charged with identity theft.

McGregory, 2019 IL App (1st) 173101, ¶ 3. Defendant sought suppression of the evidence, in part

because the government had unreasonably delayed obtaining a warrant. The State argued that the

3 It is possible that a seizure might affect a suspect’s liberty interests in a very loose sense

without being “tantamount to detention.” If that is the law, such an effect on liberty interests would

be particularly likely when the object seized is a smartphone. Smartphones are used to display

airline tickets and boarding passes, to pay fares on public transportation, and to access ride sharing

services; thus, seizure of a smartphone will certainly affect a person’s ability to travel by some

modes. We do not know the extent to which this effect caused this defendant any inconvenience.

Neither party has discussed such a theory.

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delay was not unreasonable, because “the officers were diligent in obtaining the search warrant

and [the] defendant did not request the return of the equipment, did not allege any harm to his

possessory interest in the equipment, and did not argue that he needed the equipment for legitimate

reasons.” McGregory, 2019 IL App (1st) 173101, ¶ 4. At a suppression hearing, the State’s

witnesses testified that the delay in seeking a warrant was due to multiple reasons, including that

(1) the computers had been misplaced, (2) the Secret Service agent’s investigation had been

delayed when he was assigned presidential protection duties, and (3) an Internal Revenue Service

investigation potentially overlapped with the Secret Service investigation. McGregory, 2019 IL

App (1st) 173101, ¶¶ 6-11. The trial court deemed the delay unreasonable and suppressed the

evidence. McGregory, 2019 IL App (1st) 173101, ¶ 13.

¶ 30 On appeal, the McGregory court noted that the defendant did not dispute the contention

that probable cause existed for the computers’ seizure. McGregory, 2019 IL App (1st) 173101,

¶ 17. As here, this was the primary factor favoring the State, although “it d[id] not automatically

justify any delay in obtaining a search warrant.” McGregory, 2019 IL App (1st) 173101, ¶ 24. On

the other side, as here, the delay was “extraordinary.” McGregory, 2019 IL App (1st) 173101,

¶ 22. Next, the defendant in McGregory asserted his possessory interest by asking the police not

to seize his equipment, an act that “evidenced [his] possessory interest in the equipment and the

effect its seizure had on that interest.” McGregory, 2019 IL App (1st) 173101, ¶ 23. Here, although

there is no clear evidence of defendant verbally asserting his interest, the iPhone was taken from

his person, which strongly suggests his possessory interest. Finally, the diligence of the law

enforcement officers in McGregory was “lacking”; the court did not think that the officers involved

“completely or intentionally abdicated their duties,” yet it could not find “the necessary urgency

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in obtaining a warrant.” McGregory, 2019 IL App (1st) 173101, ¶ 25. Here, diligence was more

clearly lacking—law enforcement did not attempt to obtain a warrant until just before trial.

¶ 31 The balance of factors here is not identical to those in McGregory, but it is similar. If

anything, given the long delay and the slight evidence of diligence by law enforcement, it appears

to us that the case for suppression is more substantial than that in McGregory. Adding to this, the

“equipment” seized in McGregory consisted of “computers and other equipment often associated

with the manufacture of fraudulent credit cards” (McGregory, 2019 IL App (1st) 173101, ¶ 3).

Given the pervasiveness of cell phones in daily life—as noted by the Riley Court (Riley, 573 U.S.

at 395)—and the fact that defendant’s phone was a smartphone, the seizure of defendant’s iPhone

was more likely to be disruptive than the seizure of less versatile equipment.

¶ 32 We conclude that the trial court erred in denying defendant’s motion to suppress evidence

obtained from his iPhone.

¶ 33 III. CONCLUSION

¶ 34 For the reasons stated, we (1) reverse the order of the circuit court of Du Page County

denying defendant’s motion to suppress, (2) vacate defendant’s convictions, and (3) remand the

matter for a new trial.

¶ 35 Vacated and remanded.

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No. 2-18-0991

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 17-CF- 1070; the Hon. Liam C. Brennan, Judge, presiding.

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

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

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