Appeal from the Circuit Court of Cook County No. 09 CR 19378 Honorable Marcus R. Salone, Judge Presiding.
PRESIDING JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Demetrius Hill was convicted of unlawful use of a weapon by a felon and was sentenced to four years in prison. On appeal, defendant raises three issues: (1) whether he was denied his sixth amendment right to effective assistance of counsel based on his trial counsel's failure to move to suppress his post-arrest statement that a gun found in an apartment was his; (2) whether the State failed to prove his guilt beyond a reasonable doubt because the State did not show that he had constructive possession of the gun; and (3) whether his conviction for unlawful possession of a weapon by a felon must be vacated because the statute creating the offense violates his second amendment right to bear arms. For the reasons that follow, we reverse and remand for further proceedings.
¶ 3 At trial, the court first heard testimony from two witnesses on behalf of the State, Chicago police officers Scott Hall and Ronald Coleman. On September 23, 2009, sometime after 4 p.m., Officer Hall was in the area of Madison and Kostner trying to locate "an identified subject" for a narcotics search warrant. Officer Hall saw a vehicle driving north on Kildare, just past Washington, that matched the description of the subject's vehicle and plates. Officer Hall curbed the vehicle, and the driver identified himself as Demetrius Hill. Officer Hall did not run the vehicle's license plates when the stop occurred and did not ask for any identification from Hill.
¶ 4 After curbing Hill's vehicle, Officer Coleman "placed Mr. Hill in custody." Officer Hall gave Hill his Miranda warnings and put him in handcuffs. Officer Hall showed him a copy of a search warrant, which permitted the search of Hill's person and the second-floor apartment at 4310 West Flournoy. Officer Hall then conducted a pat down and retrieved a set of keys; he estimated that there were "[m]ore than two, less than ten." When asked if any of the keys were for the Flournoy address, Hill responded, "yes." Officer Hall then placed Hill in the back of his squad car. In Officer Hall's view, Hill was not free to leave.
¶ 5 Officer Hall radioed Officer Coleman and explained that he had made contact with Hill and was relocating to 4310 West Flournoy. Officer Coleman and other officers were already at the apartment and had been conducting surveillance since 4:35 p.m. or 4:45 p.m., preparing to execute the search warrant for that location. After Officer Hall arrived, the police used two of the keys recovered from Hill to open the downstairs door and the apartment door on the second floor. The search of the apartment began at around 5:05 p.m.
¶ 6 The officers found no one in the three-bedroom apartment. According to the complaint for the search warrant that Officer Coleman prepared, there was information that ecstasy would be found in the front bedroom. Coleman searched the front bedroom but did not find narcotics there, and he never entered the back bedroom. In the middle bedroom, however, Officer Coleman recovered "underneath the bed, inside a plastic bag, *** a fully loaded shotgun with one spent round" and 11 live rounds. The plastic bag was in a "little small box" and was "concealed." There were also a "a clear plastic bag with residue from possible Ecstasy pills, a scale and other paraphernalia" found "in the dresser area of the bedroom." Officer Coleman also found men's clothing in the bedroom. The officers found no proof of residence for Hill at the apartment.
¶ 7 After recovering the shotgun and other items, Hill was transported to the Homan Square police station. Officer Coleman questioned Hill there around 8:45 p.m. or 9 p.m. Before speaking with Hill, Coleman gave him his Miranda warnings. Coleman asked about the shotgun, and Hill "said he had the shotgun for about a month; that he kept it for protection." Hill stated that he had been living at the Flournoy apartment with his girlfriend for five months.
¶ 8 Defense counsel first called Kenneth Riley, who owned the building at 4310 West Flournoy and lived on the first floor. Riley rented the second-floor apartment to Theresa Austin, her daughter, and her brother, Cedric. While Riley had seen Hill "a couple of times" in the building, Hill was not on the lease, did not pay rent, and did not have his name on the mailbox. Riley stated that if anyone besides the three known occupants lived in the apartment, he would require additional rent, but he did not check in to see who lived in the apartment every night.
¶ 9 Cedric Austin testified that he lived at the apartment and paid rent to Riley. Cedric stated that he, Theresa, and her daughter all lived in the apartment. Cedric slept in the back bedroom, Theresa slept in the middle bedroom, and her daughter slept in the front bedroom. Cedric's girlfriend also slept there, in Cedric's bedroom, but she did not pay any rent to the landlord. Cedric stated that Hill was Theresa's boyfriend, but he was never present in the apartment without Theresa being there. Hill did not "live there" and was not a "resident," but Hill had spent the night five or six times in the couple of months before his arrest. Hill had a set of keys "for emergencies," but Cedric stated that nothing kept Hill from coming or going from the apartment. Cedric's clothing was scattered all over the residence, including in Theresa's bedroom, because Theresa did Cedric's laundry for him.
¶ 10 In her testimony, Theresa Austin added that she had been dating Hill for about a year. According to Theresa, Hill did not live with her at 4310 West Flournoy, and he only had keys to the residence because he changed the locks for her when she was arguing with Cedric about paying his share of the rent. She let Hill keep a key as a backup to let Cedric enter the apartment when she was not there. Hill slept there 7 to 10 times in the two to three months before he was arrested. He came over five times a week to take her to work, but Hill would usually wait for Theresa in his car outside.
¶ 11 Hill testified on his own behalf. He testified that he would pick his girlfriend Theresa up and take her to work and would sometimes go into her apartment to help her with bags that she took to and from work. Hill estimated that he had slept at the apartment 5 to 10 times in the months before his arrest, but that he lived at 4921 West Superior, which was the address listed on his driver's license and car registration. While he had keys to the Flournoy apartment, he did not enter the apartment without Theresa's permission, but used the keys to let Cedric or Theresa's daughter in the residence when Theresa was working late. Hill slept in the middle bedroom, but never checked under the bed in that room and did not know there was a gun there. On cross-examination, Hill denied making a statement to Officer Coleman about possessing the gun.
¶ 12 The parties stipulated that defendant was convicted under the alias David Johnson of manufacturing and delivery of a controlled substance on June 19, 1996. At closing arguments, the parties focused on whether the State had proven that Hill had constructive possession of the gun found in the Flournoy apartment. The court interjected during the arguments and questioned whether the police had authority to detain and transport Hill after searching him on the side of the road. The court asked the parties to brief the issue and continued the case. At a subsequent hearing, the court opined that the police had no authority to detain and transport Hill: "There was a search for-a warrant for the search of his person which they can effectuate right there but they didn't do that. They didn't stop there. They then took him to another location and they have no reason nor authority for it." The court found that there was a possibility that defendant's statement to police would have been suppressed, but because no motion to suppress had been made before trial or during trial, that issue was not before the ...