No. 1-13-1870 Fourth Division December 24, 2015

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the ILLINOIS, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 10 CR 2148801 ) ROBERT BUTLER, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding. _________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.

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 No. 1-13-1870

¶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

1 Defendant and codefendant had a joint, but severed, trial, with codefendant's trial being a trial by jury.

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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)

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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

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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

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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 skinned man she had seen running with a gun. Bibbs also viewed a

physical lineup, but she was not able to identify anyone. Bibbs viewed another physical lineup

on November 6, 2010, and she tentatively identified two people as possibly being the lighter-

skinned man she saw running from the scene.

¶ 15 Tiffany Bennett testified that around 9 or 10 a.m. on October 13, 2010, she received a call

from her friend Marcus Russell, who asked her to switch cars with him. Russell did not tell her

why he needed to do so, but said that it was an emergency. She proceeded to a McDonald's

located at 95th and Halsted, where she met Russell and switched her gray Dodge Stratus for his

blue Charger. Marcus had three other people with him; Rob, who she identified in court as

defendant, Red, who she identified in court as codefendant, and a man she did not know. Marcus

and Red, and possibly the unidentified man, returned the car to her sometime between 5 and 6

p.m. that day. Russell told her that defendant had been shot, but did not give her any details

about the shooting or say whether he had been present for it. Later that evening, Bennett received

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a call from her father, who told her that the police were at his home and needed to speak with

her. Bennett proceeded to her father's house and gave police permission to look in her car. Police

found blood on the back seat of her car. There had been no blood there that morning when she

exchanged cars with Russell, nor was defendant injured in any way at that time.

¶ 16 Officer Shannon testified consistently with his testimony at the hearing on the motion to

quash and suppress evidence regarding the circumstances surrounding defendant's arrival at the

hospital, regarding how he obtained defendant's cell phone, and the content of the text message

he saw on that phone. He further testified that "pipe" is a street term for gun.

¶ 17 The State presented evidence that police collected and inventoried 15 discharged

cartridge casings and one fired bullet from the crime scene. Eight of the cartridge casings were

recovered from the front parkway area, and the remaining seven cartridge casings, as well as the

fired bullet, were recovered from the living room. Additionally, the coroner recovered one bullet

from Stubbs' body during the autopsy he performed on it. Ballistics experts analyzed this

physical evidence and concluded that the cartridge casings and bullets had been fired from three

different guns. They further concluded that four of the casings recovered from the front parkway,

as well as the fired bullet recovered in the living room, and the bullet recovered from Stubbs'

body, were fired from the same gun, which was a gun that was recovered two days after the

shooting in an unrelated arrest. The ballistics experts also concluded that seven cartridge casings

recovered in the living room and one cartridge casing recovered from the parkway were fired

from the same gun, which was a gun recovered one year after the shooting during an unrelated

search warrant. None of the evidence was fired from the gun recovered from William White.

¶ 18 Detective Brian Johnson testified that on October 13, 2010, he and Detective Dougherty

went to Christ Hospital, where defendant had been transferred, and spoke with Officer Shannon,

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who gave them defendant's belongings, including his cell phone. He and Detective Dougherty

then interviewed defendant. Defendant told them that he had been walking southbound on

Bishop, approaching 90th Street, when he observed two individuals who were arguing on a porch

begin shooting at one another. Defendant was struck by gunfire, so he ran to a nearby Auto Zone

store and called his brother for a ride. Detective Johnson then proceeded to the Auto Zone store

and spoke with the manager, after which he viewed the store's surveillance video for the time in

question, but did not see any footage of defendant. After defendant was finished being treated at

Christ Hospital on October 13, 2010, he was released into police custody and transported to the

police station. He arrived there around 8:30 p.m. and was placed in an interview room. Detective

Johnson prepared a search warrant for defendant's cell phone and a judge signed it. They then

took the cell phone to a tech lab where they attempted to obtain information from it.

¶ 19 Detective Johnson further testified that at approximately 10 p.m. that night, he and

Detective Dougherty advised defendant of his rights pursuant to Miranda v. Arizona,

(1966). Defendant acknowledged those rights and agreed to speak with them. Defendant

then told them that he had been in a vehicle with Russell, an individual he knew by the name

"Von," and codefendant, who is called "Red." Detective Johnson asked defendant about the text

message that was found on his cell phone, and defendant told him that he had recently been

robbed and he sent that message to a cousin to request a handgun for protection because he was

afraid. Detectives Johnson and Dougherty spoke again with defendant at approximately 10:30

p.m. on October 14, 2010. That time, defendant told them he was walking after having been

dropped off to pick up some weed, when he saw Red arguing with Stubbs on the porch and that

he was shot when the two exchanged gunfire. Detective Johnson testified that he then confronted

defendant with information he obtained from Bennett, at which point defendant "changed his

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story," as reflected in the recorded statement he gave at approximately 11:50 a.m. That statement

was then played in open court.

¶ 20 In his statement, defendant told police that he went to McDonald's with Russell, co-

defendant and "Von" to switch cars with a girl named Tiffany. According to Russell, the switch

was necessary because someone he did not recognize, perhaps from another gang, had previously

fired at his car. After the switch, and upon arriving at 89th and Bishop, defendant was told only

that he was supposed to walk down the block and act as "security detail" for codefendant and

"holler" if he saw someone approach codefendant. Defendant knew that codefendant had a gun.

Defendant was in the middle of the block, and codefendant was at the walkway leading up to a

house, when someone walked out of the house with a gun in hand and started shooting. As soon

as defendant turned to run, he was shot. He and codefendant ran back to the car, and defendant

told them to drive him to a hospital. Upon being asked about the text message that was found on

his cell phone, defendant told the detectives that he needed a gun because some men had recently

tried to rob him and his daughter at a bus stop. Defendant further stated that he never received a

gun as a result of the text he sent, and invited the detectives to call the number shown in the text

message to confirm that the person he texted did not respond to him. Nowhere in his statement

does defendant state that he knew what the others were planning or that he was involved in

planning the shooting that occurred on 89th and Bishop.

¶ 21 The parties stipulated that Dr. Cogan performed an autopsy on Stubbs, during which he

recovered a bullet from Stubbs' abdominal cavity. Dr. Cogan concluded that Stubbs suffered a

gunshot wound to his back which revealed no evidence of close-range firing, and that this wound

was Stubbs' cause of death. The parties further stipulated that an evidence technician

administered a gunshot residue kit to defendant on October 13, 2010, at 11:53 a.m. in the

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emergency room at Little Company of Mary Hospital, and that the forensic scientist who

examined that kit opined that defendant may not have discharged a firearm with either hand. If

he did so, then the particles were removed by activity, were not deposited or were not detected

by the procedure. The parties further stipulated that Officer Shannon's testimony from the

hearing on the motion to suppress would be incorporated into the record, save for testimony

excludable due to hearsay.

¶ 22 The State rested and defendant made a motion for judgment of acquittal, which the trial

court denied. Defendant then asked the court to reconsider its ruling on his motion to suppress in

light of the evidence presented at trial. The court denied that motion and the defense rested.

¶ 23 During closing arguments, the State argued, inter alia, that defendant was a member of a

team that "went out looking to kill," and that his designated responsibility as part of that team

was obtaining a weapon and being a lookout. The State thus argued that defendant was

accountable for Stubbs' murder. Defense counsel argued that no evidence was presented (1) that

defendant had a gun or discharged one or that he received a gun as a result of the text that was on

his cell phone, (2) that he knew what codefendant's plans were, or (3) that defendant was

involved in a common scheme or design. Defense counsel argued that the State merely showed

that defendant was present at the scene, which is insufficient to find him guilty by accountability.

¶ 24 The court found defendant guilty of second degree murder. In doing so, the court found

that the text message sent before the shooting reflected that defendant had requested that an

unknown cousin bring him a pipe, meaning a gun, and was "compelling evidence." The court

stated that the evidence showed that Stubbs was also armed and that although the manner in

which the shooting occurred was "not exactly clear from the record," it believed that defendant

"went there with evil intent."

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¶ 25 Defendant filed a post-trial motion in which he argued, inter alia, that the court erred in

denying his motion to suppress the text message. The court denied the motion and the case

proceeded to a sentencing hearing. Following evidence in aggravation and mitigation, the court

sentenced defendant to 13 years in prison. Defendant now appeals, arguing that the trial court

erred in denying his motion to suppress the text message found on his cell phone.

¶ 26 ANALYSIS

¶ 27 In reviewing an order denying defendant's motion to suppress evidence, mixed questions

of law and fact are presented. People v. Pitman,

(2004). Factual findings

made by the trial court will be upheld unless they are against the manifest weight of the

evidence, whereas the trial court's application of the facts to the issues presented and the ultimate

question of whether the evidence should be suppressed is subject to de novo review.

Here,

defendant does not contest the factual findings made by the trial court in arriving at its decision,

but argues that a de novo review of his legal claim reflects that the text message found on his cell

phone should be suppressed.

¶ 28 Riley v. California

¶ 29 The fourth amendment to the United States Constitution guarantees the right of the

people to be free from unreasonable searches and seizures. U.S. Const., amend. IV; People v.

Gherna,

(2003). Accordingly, wherever an individual harbors a reasonable

expectation of privacy, he is entitled to be free from unreasonable government intrusion. Gherna,

(quoting Terry v. Ohio,

(1968)). Reasonableness generally

requires a warrant supported by probable cause. People v. Trisby,

(citing Katz v. United States,

(1967)).

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¶ 30 In this case, we are dealing with digital information, in the form of a text message, that

was discovered on defendant's cell phone during a warrantless search. Recently, in Riley v.

California,

,

(2014), the United States Supreme Court dealt with a

similar issue. In Riley, the defendants in two separate cases filed motions to suppress digital

information that was gleaned from their cell phones, which were searched after the defendants

had been arrested.

at __,

. In both cases, the trial court denied the

defendants' motions to suppress and the Supreme Court reversed those judgments on appeal,

holding that officers must generally secure a warrant before conducting a search of data on

cellular phones.

at __, __,

. In doing so, the court balanced the degree

to which a search of data contained in a cell phone intrudes upon a person's privacy interests

against the degree to which such a search is necessary to promote legitimate government

interests such as preventing the destruction of evidence and harm to officers.

at __,

. In arriving at its decision, the court noted that given the current state of cell phone

technology, modern cell phones contain vast quantities of personal information, have an

immense storage capacity, and are in essence mini computers.

at __,

.

The court further noted that given the quantity and quality of information contained in a cell

phone, a search of such a device would typically expose far more private information than the

most exhaustive search of a house.

at __,

. Although the court held that

in general an officer cannot search the contents of a cell phone without a warrant, even if it is a

search conducted incident to a lawful arrest, it recognized that depending on the circumstances,

certain other exceptions to the warrant requirement may apply to a given situation.

at __,

.

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¶ 31 Defendant here argues that in light of Riley, the warrantless search of his cell phone was

unconstitutional, and, accordingly, the text message discovered during the search should be

suppressed. Although the State does not contest the applicability of Riley in this case, 2 it

contends that the community caretaking exception to the warrant requirement applies.

¶ 32 Community Caretaking

¶ 33 The State bears the burden of presenting evidence showing that a warrantless search was

justified under a recognized exception to the warrant requirement. People v. Kowalski,

. Community caretaking constitutes an exception to the warrant

requirement and is invoked to validate a search or a seizure as reasonable under the fourth

amendment; it is not relevant to determining whether police conduct amounts to a seizure in the

first place. People v. Luedemann,

(2006). "Rather than describing a tier

of police-citizen encounters, community caretaking refers to a capacity in which the police act

when they are performing some task unrelated to the investigation of crime, such as helping

children find their parents, mediating noise disputes, responding to calls about missing persons

or sick neighbors, or helping inebriates find their way home." People v. McDonough,

(2010).

¶ 34 In general, the following two criteria must be present for the community caretaking

exception to apply: (1) when viewed objectively, the officer's actions constitute the performance

of some function other than the investigation of a crime, and (2) the search or seizure must be

reasonable because it was undertaken to protect the safety of the general public.

.

Reasonableness is measured objectively by examining the totality of the circumstances.

2 We note that although no case dealing with the warrantless search of the digital contents of a cell phone, such as in Riley, has been decided in Illinois, in general, the Illinois supreme court "interprets the search and seizure clause of the Illinois Constitution in 'limited lockstep' with its federal counterpart." People v. LeFlore,

(quoting People v. Caballes,

(2006)). - 13 - No. 1-13-1870

(quoting Ohio v. Robinette,

(1996)). In deciding whether this exception applies

to a particular set of circumstances, a court must balance a person's interest in going about his or

her business free from police interference against the public's interest in having police officers

perform services in addition to strictly law enforcement.

(citing Leudemann,

).

¶ 35 In this case, defendant concedes that Officer Shannon was not investigating a crime at the

time he searched the cell phone, but maintains that the officer's stated reason for conducting the

search, to contact defendant's next of kin, was wholly unnecessary and thus unreasonable. The

State argues that Officer Shannon's actions "clearly" fall within the community caretaking

exception, but cites no support for this assertion and acknowledges that this court has not

previously addressed whether the community caretaking exception applies to an officer's

warrantless search of an injured person's cell phone in order to contact a family member.

¶ 36 According to the State, Officer Shannon's "limited use" of defendant's cell phone to

contact defendant's family members and notify them that defendant had been shot and where

they could find him falls under the community caretaking exception because such an action

protects the safety of the public in the following ways: (1) providing this information to

defendant's family, (2) it could have alerted medical personnel as to a possible medical condition

of significance, (3) it could have alerted defendant's family regarding potential harm that could

have been headed their way, and (4) it could have provided police with possible information

regarding the identity of defendant himself and/or the person who shot him.

¶ 37 Here, however, Officer Shannon did not testify that he sought to use defendant's cell

phone for any other purpose than to inform defendant's family that he had been shot. He did not

testify that he sought to ascertain defendant's identity or to gather defendant's medical history

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from his family. Nor did Officer Shannon testify that he sought to warn defendant's family that

harm could be headed their way or to ask them if they knew the identity of defendant's shooter.

In fact, if defendant's family already knew who had shot defendant, there would be no need for

Officer Shannon to call and inform them that he had been shot. Further, Officer Shannon

testified that defendant was able to understand and answer questions, and that he never lost

consciousness. That being the case, information regarding defendant's identity and his medical

history could have been obtained from defendant himself.

¶ 38 Turning to Officer Shannon's stated objective in searching defendant's cell phone, to

notify defendant's family, we find that Officer Shannon had better and less intrusive means of

accomplishing this task. As previously mentioned, the record reveals that defendant was alert

and able to communicate at the time Officer Shannon conducted the search. Thus, Officer

Shannon could have asked defendant if he would like the officer to contact anyone on

defendant's behalf, and if so, for their contact information. Officer Shannon could also have

inquired of hospital staff whether defendant's family had already been contacted or if defendant

had provided them with contact information. The record reveals that at the time Officer Shannon

searched defendant's cell phone, defendant had already asked a nurse to call his sister. However,

Officer Shannon made no effort to ascertain whether hospital staff had already contacted

defendant's family or to speak to defendant about this issue. Rather, he took it upon himself to

obtain defendant's cell phone with the intent of searching through it for an appropriate person to

contact. This manner of proceeding is not only intrusive, but highly misguided, given that

Officer Shannon did not know the names of defendant's family members and thus would not

have known which of the contacts in defendant's phone was a relative. Aimlessly scrolling

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through a list of unknown names and/or calling each and every contact in defendant's cell phone

is neither reasonable nor serves the purpose of protecting defendant or the general public.

¶ 39 Additionally, we reject the State's contention that the balance between defendant's

privacy interest and society's interest in the welfare of its citizens favors allowing an officer to

reach out and notify an injured person's family as to their medical status by searching his or her

cell phone. We find that this overly generalized assertion fails to take into account the detailed

discussion in Riley in which the Supreme Court acknowledged that due to the current state of cell

phone technology, a search of a cell phone contains an immense amount of digital information

pertaining to a person's "privacies of life" and that as a result, cell phones implicate privacy

concerns far beyond those implicated in searches of objects such as purses or wallets. (Internal

quotation marks omitted.) Riley, 573 U.S. at __, __,

. Given that

defendant's privacy interest in the contents of his cell phone was so substantial, we find that

Officer Shannon's actions in conducting a warrantless search of that phone in order to contact

defendant's family do not fall under the community caretaking exception where he had less

intrusive means at his disposal of accomplishing the same task.

¶ 40 Implied Consent

¶ 41 The State also contends that defendant gave implied consent for others, including Officer

Shannon, to use his cell phone. In so arguing, the State points to defendant's testimony that upon

arriving to the emergency room he asked a nurse to call his sister. The State maintains that it is

only reasonable to infer that Officer Shannon overheard this request and decided to carry it out

by using defendant's cell phone. According to the State, given that defendant specifically

requested that his sister be contacted, use of his cell phone was "logically inevitable," and it is

inconsequential who in particular acted upon his request.

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¶ 42 Even assuming that Officer Shannon overheard defendant make this request, the fact

remains that defendant made the request to a nurse, not to Officer Shannon. Consent is

determined by whether a reasonable person would have understood by an individual's words,

acts or conduct, that consent had been granted. People v. Burton,

(2011). Here, we find that no reasonable person would have understood that defendant had

granted consent for Officer Shannon, or anyone else, to search his cell phone merely by asking a

nurse to call his sister. Further, contrary to the State's contention, we do not find that defendant's

request constituted a relinquishment of his privacy expectation in his cell phone. This is

particularly so where no evidence was presented that defendant asked the nurse to use his cell

phone in order to call his sister.

¶ 43 Exigent Circumstances

¶ 44 In the alternative, the State argues that independent probable cause and exigent

circumstances existed to justify Officer Shannon's seizure of defendant's phone until a warrant

was secured. This argument fails however because in this case Officer Shannon did not merely

seize defendant's cell phone and secure it until a search warrant could be obtained, but rather,

seized it and immediately searched its contents.

¶ 45 That said, we observe that courts consider the following factors in determining whether

exigent circumstances justify a warrantless search: (1) whether the offense being investigated

was recently committed; (2) whether there was any deliberate or unjustified delay by police

during which a warrant could have been obtained; (3) whether a grave and/or violent offense is

involved; (4) whether police reasonably believed that the suspect was armed; (5) whether the

police officers were acting upon a clear showing of probable cause; (6) the likelihood that the

suspect would have escaped if not swiftly apprehended; and (7) a strong reason to believe that

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the suspect was on the premises. People v. Davis,

(2010) (quoting

People v. Foskey,

(1990)). These factors are neither exhaustive, nor to be

rigidly applied in every case.

Rather, in deciding whether exigent circumstances are present,

the totality of the circumstances are considered; and those circumstances must militate against

delay to justify an officer's decision to proceed without a warrant.

¶ 46 In considering the totality of the circumstances of this case, we find that they do not

militate against delay, but rather, reflect that Officer Shannon was not justified in proceeding

with a warrantless search of defendant's cell phone. Although the shooting that took place at 89th

and Bishop was a violent offense that had been committed recently, the remainder of the

circumstances weigh against the presence of exigent circumstances. According to Officer

Shannon's own testimony, he searched defendant's cell phone only after all of defendant's

clothing and personal effects had been removed from him by hospital staff. Thus, given that no

evidence was presented that a gun was included in those personal effects, Officer Shannon could

not have reasonably believed that defendant was armed at that time. Nor was there a likelihood

that defendant, who was in a hospital emergency room being treated for a gunshot wound, would

have escaped prior to Officer Shannon obtaining a search warrant.

¶ 47 Further, even if we were to assume that Officer Shannon had probable cause to believe

that defendant was involved in the shooting at 89th and Bishop, we reject the State's argument

that Officer Shannon had probable cause to believe that defendant's phone contained vital

information related to that shooting. The State points to no evidence to support such a

conclusion, but rather, merely points out that in Riley, the Supreme Court recognized that a cell

phone can store a wide range of information relating to criminality, and that this information is

subject to deletion by the offender. Notably, in Riley, the Supreme Court rejected the United

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States' argument that a warrantless search of a cell phone should be allowed whenever it is

reasonable to believe the phone contained evidence of a crime. Riley, 573 U.S. at __,

. In doing so, the court noted that "[i]t would be a particularly inexperienced or

unimaginative law enforcement officer who could not come up with several reasons to suppose

evidence of just about any crime could be found on a cell phone."

at __,

.

¶ 48 In this case, at the time Officer Shannon conducted the warrantless search, defendant was

not in possession of his cell phone and thus was not in a position to manually delete any

information on it. 3 Here, there was no immediate and clear danger to the police or others (see

Foskey,

, and Davis,

), and there was no reason Officer

Shannon could not have waited and secured a warrant prior to searching defendant's cell phone. 4

In sum, based on the totality of the circumstances, we find that the State has failed to show that

Officer Shannon's warrantless search of defendant's cell phone was justified by exigent

circumstances.

¶ 49 Inevitable Discovery

¶ 50 Further in the alternative, the State argues that the inevitable discovery exception to the

exclusionary rule applies here. Pursuant to this exception, evidence that otherwise would be

inadmissible may be admitted if the prosecution can show that the evidence would inevitably

have been discovered without reference to the police error or misconduct. People v. Edwards,

(1991) (quoting Nix v. Williams,

(1984)). The State

3 We note that the State makes a passing reference to the fact that the contents of cell phones are subject to remote wiping. Given that the State does not develop an argument in relation to this potential risk, we do not address it. That said, we note that it does not appear that defendant would have known that there was any need to delete information remotely, given that he testified that he did not know that the police had obtained his cell phone. 4 For a search warrant to be valid it must be supported by probable cause, meaning that a sufficient nexus must be established between the criminal offense, the item to be seized, and the place to be searched. People v. Lyons,

(2007). We make no determination as to whether, without the contents of the text message at issue, an attempt to obtain a search warrant would have been successful.

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maintains that the contents of the text message would inevitably have been discovered due to the

search warrant that was subsequently issued, which allowed authorities to search the cell phone.

We disagree.

¶ 51 The State is correct that the police obtained a search warrant to gain access to defendant's

cell phone. However, Officer Shannon testified that the search warrant was obtained based on the

content of the text message that he saw on defendant's cell phone and which he turned over to the

detectives who he called to investigate the case. Had Officer Shannon not seen the text message

as a result of his warrantless search of the cell phone, the investigating detectives would not have

had this information with which to support a request that a judge sign a search warrant. Evidence

obtained during an illegal search cannot serve as the basis for the issuance of a search warrant.

Davis,

(quoting People v. Bowen,

(1987)

(holding that evidence so obtained is inadmissible)). Accordingly, we find that the evidence at

issue would not inevitably have been discovered without reference to the police error or

misconduct, and the exclusionary rule is applicable in this case.

¶ 52 Harmless Error

¶ 53 The State further argues that even if the trial court erred in denying defendant's motion to

suppress the text message, the error was harmless because overwhelming evidence of defendant's

guilt was presented at trial. Defendant, however, contends that without the contents of the text

message, no evidence was presented at trial which would support a conviction based on

accountability, and thus the error cannot be considered harmless.

¶ 54 Some constitutional errors may be so insignificant that they may be considered harmless

error, however, before a federal constitutional error may be declared harmless, the State must

show that the error at issue was harmless beyond a reasonable doubt. Chapman v. California,

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(1967). Three approaches for ascertaining error pursuant to Chapman have

been noted: (1) determining whether the error might have contributed to the defendant's

conviction; (2) whether overwhelming evidence supports defendant's conviction, and (3)

determining whether the evidence at issue is cumulative or merely duplicative of properly

admitted evidence. People v. Wilkerson,

(1981) (citing Fahy v. Connecticut,

(1963), Milton v. Wainwright,

(1972), and Harrington v. California,

(1969)). We find that none of these ways of viewing this issue lead to the

conclusion that the error here was harmless beyond a reasonable doubt.

¶ 55 In this case, none of the witnesses testified that they saw defendant fire a gun or saw a

gun in his possession, and the gunshot residue test that was performed was negative for the

presence of gunshot residue. Accordingly, defendant was found guilty by accountability. Under

Illinois law, a person is legally accountable for the conduct of another when, either before or

during the commission of the offense, with the intent to promote or facilitate the commission

thereof, he aids, abets, or attempts to aid that person in planning or committing the offense. 720

ILCS 5/5-2(c) (West 2010). Although active participation is not required to be found guilty

under a theory of accountability (People v. Taylor,

(1995)), to prove

defendant had the requisite intent, the State must show that either defendant shared the criminal

intent of the principal or that there was a common criminal design. In re W.C.,

(1995). Mere presence at the scene of a crime is insufficient to hold someone accountable

for the acts of another. People v. Caffey,

(2001).

¶ 56 In arguing that any error was harmless, the State summarizes the evidence that was

presented and contends that it overwhelmingly supported defendant's conviction. However, aside

from the content of the text message, the evidence merely established that defendant was present

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at the scene, which on its own, is insufficient to support a conviction that is based on

accountability. Bennett testified that defendant was present when she exchanged her car, a

Dodge Stratus, with Russell. White testified that he saw defendant running from the scene after

the shooting and leave in a Dodge Stratus. In his statement, defendant also placed himself at the

scene, but did not state that he knew what codefendant's plans were when they arrived at 89th

and Bishop. Aside from the content of the text message, no evidence was presented showing that

defendant may have been part of common plan or scheme relating to a shooting, and we thus find

that it was not overwhelming evidence of defendant's guilt by accountability. Further, the content

of the text message was not presented by way of other evidence, and thus was not duplicative or

cumulative. Finally, given that the trial court stated that the content of the text message was

"compelling" evidence, we find that it contributed to defendant's conviction, and, accordingly,

that the State has failed to show that the error was harmless beyond a reasonable doubt.

¶ 57 Attenuation

¶ 58 Defendant also argues, and the State concedes, that this case should be remanded for an

attenuation hearing to determine whether his statement to police was the fruit of the unlawful

search of his cell phone. It is uncontested that defendant gave his recorded statement after having

been confronted with the content of the text message that was recovered during Officer

Shannon's improper search of his cell phone. Accordingly, it must be determined whether this

confession was obtained by exploitation of the illegal search of his cell phone, or if it was

obtained by means sufficiently distinguishable so as to be purged of the primary taint of

illegality. People v. Jackson,

(2007). The State bears the burden of

proving attenuation.

.

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¶ 59 The following four factors are considered in determining whether a confession was a

product of an illegal search or arrest, or was purged of the initial taint: "(1) the temporal

proximity between the [illegal search] or arrest and the confession; (2) the presence of

intervening circumstances; (3) the purpose and flagrancy of the police misconduct; and (4)

whether Miranda warnings were given." People v. Ollie,

(2002)

(citing Brown v. Illinois,

(1975)). However, we find that the record before

this court is insufficient to allow us to make an independent determination on the matter of

attenuation, and thus, the proper course of action is to remand this case to the trial court with

directions to conduct an attenuation hearing to determine whether defendant's statement was

sufficiently attenuated from the illegal search of his cell phone so as to render it admissible. Id. at

987.

¶ 60 CONCLUSION

¶ 61 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County

denying defendant's motion to suppress the text message, as well as reverse defendant's

conviction. We remand this cause for a new trial, which is to be held after an attenuation hearing

is held to determine whether defendant's statement should also be suppressed.

¶ 62 Reversed; cause remanded.

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