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FOURTH DIVISION
June 30, 2005

No. 1-03-1627

JUSTICE THEIS delivered the opinion of the court:

Following a bench trial, defendant Calvin Conner was found guilty of unlawful use of aweapon by a felon and sentenced to two years' imprisonment. On appeal, he contends that thetrial court erred in denying his motion to quash arrest and suppress evidence because the officersunconstitutionally detained him while executing a search warrant. For the following reasons, weaffirm.

Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, allegingthat he was arrested without probable cause and asking the court to suppress the evidence and hisstatement acquired as a result of his illegal arrest. At the hearing, Chicago police officer BrianLadd testified that on January 3, 2002, he executed a search warrant for Terrance Carter at 6646South Bell Street in Chicago, Illinois. It is clear from the record that the search warrant at issueauthorized a search of the premises at 6646 South Bell and the person of Terrance Carter fornarcotics.⁽¹⁾ Officer Ladd testified that other officers who were part of his team simultaneouslyexecuted a search warrant for apartment number 1 at 6338 South Laflin⁽²⁾ Street in Chicago andthe persons of Terrance Carter and Tamango Jackson.

When Officer Ladd entered the Bell Street residence, he found defendant and two otherindividuals inside. Defendant was located near the rear of the house. Ladd testified that he andthe other officers handcuffed all three individuals for "our safety and safety of the entry team" and"to make sure that they [did] not interfere with the search warrant being executed." Ladd statedthat defendant was "merely held for safety" and that he would not have allowed defendant toleave. While detaining defendant, Officer Ladd learned defendant's name and date of birth. Laddthen entered this information into a computer terminal in a squad car "to determine if they had anyoutstanding warrants, if they were clear," and discovered that there was an outstanding warrantfor defendant's arrest for possession of a controlled substance in Whiteside County, Illinois.

After Ladd learned of this outstanding warrant, he spoke by radio to Officer LidioTraverso, who was executing the search warrant at the Laflin residence. Traverso told Ladd thathe had found a Minnesota state identification with defendant's name on it in proximity to a loaded.380-semiautomatic pistol in a bedroom at the Laflin house. Ladd then arrested defendantpursuant to the Whiteside County warrant and brought him to the police station.  Ladd testifiedthat the basis of his arrest of defendant was this outstanding warrant and not the gun recoveredfrom the Laflin house.

On redirect examination, Officer Ladd admitted that the arrest report he authoredindicated that the Laflin Street address was defendant's residence and that after the officers foundthe gun, they located defendant where he was taken into custody. The report also stated thatfurther investigation revealed that defendant was a convicted felon. Officer Ladd testified,however, that at the time he arrested defendant, he knew that defendant was a convicted felon andthat there was an outstanding warrant for his arrest.

The trial court then denied defendant's motion to suppress. At trial, Officer Traversotestified that on the day of defendant's arrest, he and eight other officers executed a searchwarrant in the first-floor apartment at 6338 South Laflin Street. In the rear bedroom of theapartment, Traverso recovered a loaded semiautomatic pistol on a shelf in the closet. He alsofound a Minnesota state identification card on a nightstand less than five feet away from theweapon. Traverso further testified that he was in radio contact with the officers executing thesearch warrant at the Bell Street address and that he spoke to Officer Ladd.

After speaking to Ladd, Officer Traverso took the gun and identification to the station tobe inventoried. There, he advised defendant of his Miranda rights, and defendant acknowledgedthat he understood those warnings and agreed to talk to him. Officer Traverso showed defendantthe gun and the identification card he had recovered. Defendant admitted that the gun was his,that he was aware the gun was kept in his bedroom at the Laflin residence, and that he had livedat that residence for several months. Defendant also indicated that the weapon was notoperational.

The parties then stipulated to defendant's prior conviction for delivery of cocaine. Thetrial court found defendant guilty of unlawful use of a weapon by a felon. After denyingdefendant's motion for a new trial, the trial court sentenced him to two years' imprisonment. Defendant then filed this timely appeal.

Defendant contends that the trial court improperly denied his motion to quash arrest andsuppress evidence where police officers unconstitutionally detained him while executing a searchwarrant. Defendant further argues that even if his initial detention was proper, Officer Ladd's actof running a warrant check on his name exceeded the scope of the detention.

"In reviewing a circuit court's ruling on a motion to suppress, mixed questions of law andfact are presented." People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93, 100 (2004).  First, weuphold the trial court's findings of historical fact unless such findings are against the manifestweight of the evidence. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 100. The trial court is in asuperior position to determine and weigh the credibility of the witnesses, observe the witnesses'demeanor, and resolve conflicts in their testimony. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 101. However, this court remains free to undertake its own assessment of the facts in relation to theissues presented and may draw its own conclusions when deciding what relief should be granted. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 101. Accordingly, we review de novo the ultimatequestion of whether the evidence should be suppressed. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at101. Additionally, the defendant bears the burden of proof at a hearing on a motion to suppress.
People v. Gipson, 203 Ill. 2d 298, 306, 786 N.E.2d 540, 545 (2003).

The fourth amendment to the United States Constitution protects the "right of the peopleto be secure in their persons, houses, papers, and effects, against unreasonable searches andseizures." U.S. Const., amend. IV. The central inquiry under the fourth amendment is " 'thereasonableness in all the circumstances of the particular governmental invasion of a citizen'spersonal security.' " Michigan v. Summers, 452 U.S. 692, 700 n.11, 69 L. Ed. 2d 340, 348 n.11,101 S. Ct. 2587, 2593 n.11 (1981), quoting Terry v. Ohio, 392 U.S. 1, 19, 20 L. Ed. 2d 889, 904,88 S. Ct. 1868, 1878-79 (1968).

In assessing the validity of defendant's initial detention, we note first that it unquestionablyconstituted a "seizure" within the meaning of the fourth amendment. The record demonstratesthat defendant was detained and handcuffed, and Ladd testified that defendant would not havebeen free to leave. See Summers, 452 U.S. at 696, 69 L. Ed. 2d at 345, 101 S. Ct. at 2590-91. The issue then becomes whether this seizure was reasonable.

Defendant argues that Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct.2587 (1981), does not apply to justify his seizure in this case. He asserts that Summers appliesonly to "occupants" of the premises and that defendant was not an occupant of the Bell Streetresidence. In its initial brief, the State failed to address the application of Summers. However,after this court issued an order requiring the State to file a supplemental brief addressing thisissue, the State responded and now contends that Summers should apply to nonoccupants in thiscase. A thorough discussion of Summers is essential to the disposition of this case.

In Summers, the police were about to execute a warrant to search a house for narcoticswhen they encountered the defendant descending the front steps. The officers requested hisassistance in gaining entry and detained him while they searched the premises. The officers alsodetained "the eight occupants of the house." Summers, 452 U.S. at 693 n.1, 69 L. Ed. 2d at 344n.1, 101 S. Ct. at 2589 n.1. After finding narcotics in the basement and learning that thedefendant owned the house, they arrested him, searched him and found heroin in his pocket. Theissue in the case was whether his initial detention violated the fourth amendment. The Court firstdetermined that the defendant had been "seized" under the fourth amendment when the policedetained him and that that detention was unsupported by probable cause. Summers, 452 U.S. at696, 69 L. Ed. 2d at 345, 101 S. Ct. at 2590-91. The Court noted the general rule that everyarrest, and every seizure with the indicia of a formal arrest, requires probable cause. This rule istempered, however, by the "ultimate standard of reasonableness embodied in the FourthAmendment." Summers, 452 U.S. at 699-700, 69 L. Ed. 2d at 348, 101 S. Ct. at 2593. Thus,some seizures "constitute such limited intrusions on the personal security of those detained andare justified by such substantial law enforcement interests that they may be made on less thanprobable cause, so long as police have an articulable basis for suspecting criminal activity." Summers, 452 U.S. at 699, 69 L. Ed. 2d at 348, 101 S. Ct. at 2592-93. The exception for limitedintrusions that may be justified by special law enforcement interests is not confined only to the"momentary, on-the-street detention"such as that involved in Terry. Summers, 452 U.S. at 700,69 L. Ed. 2d at 348, 101 S. Ct. at 2593. In order to decide if the facts in Summers werecontrolled by the general rule requiring probable cause, the Court held that it was "necessary toexamine both the character of the official intrusion and its justification." Summers, 452 U.S. at701, 69 L. Ed. 2d at 348-49, 101 S. Ct. at 2593.

The Court found the detention substantially less intrusive than an arrest for three reasons. First, of "prime importance" in assessing the intrusion was the fact that the police had a warrant tosearch the defendant's house for contraband because "[a] neutral and detached magistrate hadfound probable cause to believe that the law was being violated in that house and had authorized asubstantial invasion of the privacy of the persons who resided there." Summers, 452 U.S. at 701,69 L. Ed. 2d at 349, 101 S. Ct. at 2593. The Court determined that the detention of a residentduring a search of the premises, although admittedly a significant restraint on his liberty, was lessintrusive than the search itself. Second, the type of detention imposed was not likely to beexploited by the officers or unduly prolonged in order to gain more information because theofficers were primarily seeking information from the search itself and not the detention. Summers, 452 U.S. at 701, 69 L. Ed. 2d at 349, 101 S. Ct. at 2594. Lastly, the detention wasinside the defendant's home instead of in a police station, thereby minimizing the public stigmaassociated with the event and involving "neither the inconvenience nor the indignity" associatedwith a compelled visit to the station. Summers, 452 U.S. at 702, 69 L. Ed. 2d at 349, 101 S. Ct.at 2594.

In comparison, in assessing the justification for the detention of an occupant of premisesbeing searched for contraband pursuant to a valid warrant, the Court noted that both the lawenforcement interest and the nature of the articulable facts supporting the detention were relevant. Summers, 452 U.S. at 702, 69 L. Ed. 2d at 349, 101 S. Ct. at 2594. The Court identified threelaw enforcement interests, all of which supported the detention at issue: (1) preventing flight inthe event that incriminating evidence is found; (2) minimizing the risk of harm to the police andoccupants if the officers routinely exercised unquestioned command of the situation; and (3)facilitating the orderly completion of the search by having the occupant of the premises present toopen locked doors or containers to avoid the use of force which damaged the property and coulddelay completion of the search. Summers, 452 U.S. at 702-03, 69 L. Ed. 2d at 349-50, 101 S. Ct.at 2594.

The Court then considered the nature of the articulable and individualized suspicion onwhich the police based the detention of the occupant of a home already subject to a searchwarrant. The Court found that the existence of a valid search warrant, issued by a neutralmagistrate to search a home for criminal activity, established probable cause that "someone in thehome" was committing a crime, which in turn provided an objective justification for detaining thehome's occupant. Summers, 452 U.S. at 703, 69 L. Ed. 2d at 350, 101 S. Ct. at 2594. "Theconnection of an occupant to that home gives the police officer an easily identifiable and certainbasis for determining that suspicion of criminal activity justifies a detention of that occupant." Summers, 452 U.S. at 703-04, 69 L. Ed. 2d at 350, 101 S. Ct. at 2594-95. The Court then held,"Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband foundedon probable cause implicitly carries with it the limited authority to detain the occupants of thepremises while a proper search is conducted." Summers, 452 U.S. at 705, 69 L. Ed. 2d at 351,101 S. Ct. at 2595.

The Supreme Court next addressed this issue in Muehler v. Mena, 544 U.S. ___, 161 L.Ed. 2d 299, 125 S. Ct. 1465 (2005). In Muehler, the respondent brought an action under section1983 of the Civil Rights Act of 1984 (42 U.S.C.