Appeal from Circuit Court of Moultrie County No. 97CM44 Honorable Arthur F. Powers, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Cook
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
In May 1997, defendant Charles McArthur was charged by information with two counts of unlawful possession of drug paraphernalia and one count of unlawful possession of a substance containing less than 2.5 grams of cannabis. 720 ILCS 600/3.5(a); 550/4(a) (West 1996). Defendant filed a motion to suppress the evidence (a cannabis smoking pipe, a "one-hitter" box, and cannabis) found at his residence during the execution of a valid search warrant, arguing that his fourth amendment rights were violated because the police secured his residence and prevented him from reentering his residence alone during the two hours it took to obtain the search warrant. The trial court granted defendant's motion to suppress. The State appeals pursuant to Supreme Court Rule 604(a)(1). 145 Ill. 2d R. 604(a)(1). We affirm.
At the August 1997 hearing on defendant's motion to suppress, John Love, Sullivan assistant chief of police, testified that on the afternoon of April 2, 1997, at the request of defendant's wife, Tera McArthur, he and Officer Skidis accompanied her to a trailer where she and defendant resided, while she removed her property from the residence. After she finished removing her belongings, Tera told Love, who was standing on the porch, that defendant had "pot" in the trailer under the couch. Love knocked on the door and, when defendant answered, Love told him Tera said he had drugs in the trailer. Defendant denied he had drugs in the trailer. Defendant also denied Love's request to search the trailer for the drugs without a warrant. At that point, defendant was standing outside the trailer; however, Love did not recall whether he told defendant to come out of the trailer or if defendant came out on his own.
Upon Love's request, Tera told Love she would testify before a Judge about what she had seen in the trailer. As a result, Love sent her with Officer Skidis to secure a search warrant for the residence. Love went back to the porch and told defendant what was happening. From that point, Love did not allow defendant to re-enter the trailer unless accompanied by police so that defendant could not destroy or dispose of the evidence. Love allowed defendant to enter the residence on two or three occasions to get cigarettes and make telephone calls, during which times Love stepped "right inside the door and just stood by the doorway the entire time."
According to the trial court, the search warrant was issued at 5:05 p.m. When police returned with the warrant, they entered the trailer, found cannabis and drug paraphernalia and placed defendant under arrest. Love testified that, before this point, no officer had told defendant he was under arrest, placed him in handcuffs, or told him he was not free to leave. Love testified no search of defendant's residence took place prior to the arrival of the search warrant.
Defendant testified his wife arrived with police officers at approximately 3:15 p.m. While Tera removed her belongings the police remained on the porch and did not enter the trailer. After Tera finished, Love came to the door and told defendant about Tera's claim that there was marijuana inside the residence and that Love asked to search the trailer. Defendant told Love he could not search without a warrant. Defendant testified he was outside the trailer when he heard Love and Tera talking about obtaining a search warrant and that Tera agreed to leave to testify, and that he stayed outside the trailer on the porch until the warrant came. Love did allow defendant to enter the trailer to retrieve cigarettes and to make telephone calls. Love was present but did not search the trailer at those times. Love told defendant that he could not wait inside the trailer by himself, but had to be accompanied by an officer, until police arrived with the warrant. Defendant testified that had he been allowed to go back into his residence alone he "would have destroyed the marijuana."
Defendant estimated it took police one to two hours to return with the search warrant. When they returned with the warrant, he entered the trailer and showed them where the drugs were located. After police found the drugs, they arrested him, searched and handcuffed him, and advised him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). While waiting for the search warrant, police never told defendant he was not free to leave.
The issue before us is whether the securing of a dwelling by police for approximately two hours while awaiting a search warrant, and not allowing the resident defendant into the dwelling unless accompanied by an officer to prevent the removal or destruction of evidence inside the dwelling, violates defendant's fourth amendment rights against unrea- sonable searches and seizures. Defendant does not contest the validity of the search warrant or that probable cause existed to secure the resi- dence. A trial court's decision whether to suppress evidence will not be disturbed on review unless manifestly erroneous. People v. Alvarado, 268 Ill. App. 3d 459, 463, 644 N.E.2d 783, 786 (1994). However, "'where neither the facts nor credibility of the witnesses is contested, the issue *** is a legal question which a reviewing court may consider de novo.'" Alvarado, 268 Ill. App. 3d at 463, 644 N.E.2d at 787, quoting In re D.G., 144 Ill. 2d 404, 408-09, 581 N.E.2d 648, 649 (1991). We review this matter as a question of law to determine whether defendant's fourth amendment rights were violated.
A seizure affects an individual's possessory interests while a search affects his privacy interests. Segura v. United States, 468 U.S. 796, 806, 82 L. Ed. 2d 599, 609, 104 S. Ct. 3380, 3386 (1984) (opinion of Burger, C.J., joined by O'Connor, J.). A "seizure" occurs when a meaningful interference with an individual's possessory interests occurs. Segura, 468 U.S. at 822, 82 L. Ed. 2d at 620, 104 S. Ct. at 3394 (Stevens, J., Dissenting, joined by Brennan, Marshall, and Blackmun, JJ.). The fourth amendment, by its terms, prohibits only "unreasonable" searches and seizures. U.S. Const., amend. IV; Segura, 468 U.S. at 806, 82 L. Ed. 2d at 609, 104 S. Ct. at 3386 (opinion of Burger, C.J., joined by O'Connor, J.). A seizure based upon probable cause that is reasonable when it commences may become unreasonable as a result of its duration or other circumstances. Segura, 468 U.S. at 812, 82 L. Ed. 2d at 613, 104 S. Ct. at 3389 (opinion of Burger, C.J., joined by O'Connor, J.).
The State argues that, in Segura, the Supreme Court held that the fourth amendment permits admission of evidence found in a dwelling during execution of a valid search warrant when the police secured the dwelling from the inside for 19 hours while awaiting issuance of the search warrant. The State contends that Segura supports a finding that the fourth amendment permits admission of the evidence seized in this case.
In Segura, police arrested petitioner in the lobby of his apartment building, took him to his apartment, entered the apartment, and arrested everyone present. Segura, 468 U.S. at 800-01, 82 L. Ed. 2d at 605-06, 104 S. Ct. at 3383 (opinion of Burger, C.J., joined by White, Powell, Rehnquist, and O'Connor, JJ.). Two officers remained inside the apart- ment for 19 hours after the initial entry until the search warrant was issued and executed, while the petitioners remained under arrest and in custody at police headquarters. Segura, 468 U.S. at 801, 82 L. Ed. 2d at 606, 104 S. Ct. at 3383 (opinion of Burger, C.J., joined by White, Powell, Rehnquist, and O'Connor, JJ.). In a 5 to 4 decision affirming the admission of the evidence seized pursuant to the warrant, the Court held in part IV (and also restated in part I) that "securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents" under the fourth amendment. Segura, 468 U.S. at 810, 82 L. Ed. 2d at 612, 104 S. Ct. at 3388 (opinion of Burger, C.J., joined by O'Connor, J.).
The authority of the Segura decision has been questioned. See J. Dressler, A Lesson in Incaution, Overwork, and Fatigue: The Judicial Miscraftsmanship of Segura v. United States, 26 Wm. & Mary L. Rev. 375 (1985) (hereinafter Dressler). First, only two Justices joined in part IV of the opinion, and so part IV is not part of the opinion of the Court. Segura, 468 U.S. at 797, 82 L. Ed. 2d at 600, 104 S. Ct. at 3380. Consequently, neither part IV, nor part I, which incorporates the holding stated in part IV, is binding precedent upon lower courts. People v. Casazza, 144 Ill. 2d 414, 419-20, 581 N.E.2d 651, 654-55 (1991); see Dressler at 416 ("[p]art IV is, in fact, a Concurring opinion by two Justices, and can be deleted without affecting the opinion"). Second, the Court (in part IV) never determined whether police effect a seizure of the premises and its contents within the meaning of the fourth amendment when they secure a dwelling. The Justices assumed such action constituted a seizure of the residence and its contents, but in that case concluded that the seizure was not unreasonable under the circumstances. Segura, 468 U.S. at 806, 82 L. Ed. 2d at 609, 104 S. Ct. at 3386 (opinion of Burger, C.J., joined by O'Connor, J.). Nor did the Court express a view regarding whether securing a dwelling may "legitimately extend to limiting the freedom of movement of persons within, into or out of the impounded premises" (3 W. LaFave, Search & Seizure §6.5(c), at 366 (3d ed. 1996) (hereinafter LaFave)) or if such action constitutes a seizure or illegal arrest of the defendant resident. The Court did, however, seem to limit its holding (part IV) to the specific facts before it. During the time the police secured the dwelling from the inside, the petitioners were under arrest and in police custody. As a result:
"The actual interference with their possessory interests in the apartment and its contents was, thus, virtually nonexistent. [Cita- tion.] We are not prepared to say under these limited circumstances that the seizure was unreasonable under the Fourth Amendment." (Empha- sis added.) Segura, 468 U.S. at 813, 82 L. Ed. ...