                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            People v. Hill, 2012 IL App (1st) 102028




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DEMETRIUS HILL, Defendant-Appellant.



District & No.             First District, Fifth Division
                           Docket No. 1-10-2028


Filed                      May 4, 2012
Rehearing denied           August 14, 2012
Modified on denial
of rehearing               August 24, 2012


Held                       Defendant’s conviction and sentence for unlawful use of a weapon by a
(Note: This syllabus       felon were reversed and the cause was remanded for further proceedings
constitutes no part of     where defendant was prejudiced by his counsel’s failure to file a motion
the opinion of the court   to suppress his postarrest statement that he owned the shotgun found in
but has been prepared      his girlfriend’s apartment pursuant to the execution of a search warrant,
by the Reporter of         especially when there was no reasonable trial strategy or any basis in the
Decisions for the          record that would excuse filing such a motion.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-19378; the
Review                     Hon. Marcus R. Salone, Judge, presiding.



Judgment                   Jurisdiction retained; remanded for suppression hearing.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Deepa Punjabi, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Jon
                           Walters, and Charles J. Prochaska, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      PRESIDING JUSTICE EPSTEIN delivered the judgment of the court,
                           with opinion.
                           Justices McBride and Howse concurred in the judgment and opinion.



                                             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 postarrest 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 remand to the circuit court for further proceedings.

¶2                                        BACKGROUND
¶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 arnings 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.

                                                 -2-
¶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 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


                                                 -3-
       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 court. Considering all the evidence, including Hill’s statement to
       police, the court found Hill guilty of unlawful use of a weapon by a felon under section 24-
       1.1 of the Criminal Code of 1961 (720 ILCS 5/24-1.1 (West 2008)) and sentenced him to
       four years in prison. This appeal followed.

¶ 13                                          ANALYSIS
¶ 14       We first address defendant’s claim that he received ineffective assistance of counsel
       because his trial counsel failed to file a motion to suppress his statement to police. The right
       to counsel guaranteed by both the United States and Illinois Constitutions includes the right
       to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.
       Our supreme court has adopted the two-part test of Strickland v. Washington, 466 U.S. 668
       (1984), to determine if a defendant was denied effective assistance of counsel. See People
       v. Manning, 227 Ill. 2d 403, 412 (2008). To prevail on such a claim, a defendant must show
       both that his counsel’s representation was deficient and this deficiency prejudiced the
       defendant. People v. Patterson, 217 Ill. 2d 407, 438 (2005). “The failure to satisfy either
       prong of the Strickland test precludes a finding of ineffective assistance of counsel.” Id. In


                                                 -4-
       this particular case, we address the prejudice prong first.

¶ 15                                           Prejudice
¶ 16       “ ‘In order to establish prejudice resulting from failure to file a motion to suppress, a
       defendant must show a reasonable probability that: (1) the motion would have been granted,
       and (2) the outcome of the trial would have been different had the evidence been
       suppressed.’ ” People v. Bew, 228 Ill. 2d 122, 128-29 (2008) (quoting People v. Patterson,
       217 Ill. 2d 407, 438 (2005)). Defendant contends that the motion to suppress bore a
       reasonable probability of success because the police lacked any basis for detaining and
       transporting defendant to the Flournoy apartment. While defendant does not challenge the
       search warrant or Officer Hall’s actions in stopping defendant’s car and searching him,
       defendant argues that the continued detention violated his fourth amendment rights and as
       a result his statements at the police station must be suppressed as the product of an illegal
       seizure.
¶ 17       The fourth amendment to the United States Constitution protects 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. “The central inquiry under the fourth amendment is ‘the
       reasonableness in all the circumstances of the particular governmental invasion of a citizen’s
       personal security.’ ” (Internal quotation marks omitted.) People v. Conner, 358 Ill. App. 3d
       945, 949 (2005) (quoting Michigan v. Summers, 452 U.S. 692, 700 n.11 (1981)). There is no
       dispute that defendant’s detention and transportation after the search constituted a “seizure”
       within the meaning of the fourth amendment. See People v. Perkins, 338 Ill. App. 3d 662,
       666 (2003) (“A seizure occurs when the police, by means of physical force or show of
       authority, have in some way restrained the person’s liberty.”). After Officer Hall stopped and
       searched defendant, Officer Hall explained that defendant was not free to leave: defendant
       was handcuffed, placed in the back of the police car, and transported to the Flournoy
       apartment. The question, then, is whether the continued detention and transportation of
       defendant were reasonable. The State offers three reasons why the seizure was reasonable,
       which we address in turn.
¶ 18       The State first argues that the seizure of defendant was justified because it was supported
       by probable cause. Even without a warrant, police can seize or arrest a person if police have
       probable cause. See People v. Maxey, 2011 IL App (1st) 100011, ¶ 45 (“Generally, a seizure
       must be supported by probable cause.”); People v. Jackson, 232 Ill. 2d 246, 274-75 (2009)
       (“An arrest executed without a warrant is valid only if supported by probable cause.”).
       “Probable cause to arrest exists when the facts known to the officer at the time of the arrest
       are sufficient to lead a reasonably cautious person to believe that the arrestee has committed
       a crime.” (Internal quotation marks omitted.) People v. Hopkins, 235 Ill. 2d 453, 472 (2009)
       (quoting Jackson, 232 Ill. 2d at 275). “In other words, the existence of probable cause
       depends upon the totality of the circumstances at the time of the arrest.” (Internal quotation
       marks omitted.) Id.
¶ 19       The State argues that because the police found keys on defendant’s person, they could
       infer that he was in possession of narcotics because police had reason to believe they would


                                                -5-
       find narcotics in the Flournoy apartment. We agree that based on the search warrant, the
       officers had some reason to believe that defendant possessed ecstasy on his person and that
       they would find ecstacy in the Flournoy apartment. See People v. Donath, 357 Ill. App. 3d
       57, 63-64 (2005) (“Whether probable cause exists to support a search warrant depends upon
       whether the totality of the circumstances and facts known to the affiant were sufficient to
       warrant a person of reasonable caution to believe that the law was violated and that evidence
       of the violation would be on the premises to be searched.”). Officer Hall did not find any
       ecstacy or contraband on defendant’s person, however; he only found a set of keys, which
       included two keys to the Fluornoy apartment. The State nevertheless claims that, after finding
       the keys alone, “it was entirely reasonable for [the police] to infer that defendant was
       committing the felony offense of possession of a controlled substance.” While the keys
       certainly indicated that defendant had access to the Flournoy apartment, the police had not
       yet searched the apartment and did not know if they would find ecstasy or any other
       contraband there. Thus, the police did not actually know there were narcotics in the resident
       at the time they found the keys. The fruits of the search of defendant’s person did not give
       police a reason to believe that defendant had committed the offense of possession of a
       controlled substance.
¶ 20       The State next argues that the seizure was justified under the principles announced in
       Terry v. Ohio, 392 U.S. 1 (1968). Terry ecognized a limited exception to the probable cause
       requirement, allowing police officers, under appropriate circumstances, to briefly stop a
       person for temporary questioning where the officer reasonably believes that the person has
       committed or is about to commit a crime. 392 U.S. at 22. The State relies on a single case,
       People v. Maxey, 2011 IL App (1st) 100011, which the State contends demonstrates that the
       police properly detained and transported defendant to the Flournoy apartment.
¶ 21       In Maxey, police stopped the defendant’s car based on descriptions of the vehicle
       provided by witnesses of a recent attempted robbery of a store. 2011 IL App (1st) 100011,
       ¶ 47. The defendant also matched the physical description provided by the witnesses, and
       police transported the defendant to a showup, where the witnesses identified the defendant
       as the man who attempted to rob them. Id. ¶ 66-67. We find the State’s reliance on Maxey
       unpersuasive. The court in Maxey oncluded that information from several eyewitnesses gave
       police a reasonable belief that the defendant had just committed a nearby attempted robbery,
       and where the defendant denied involvement, the police were reasonable in transporting him
       for identification purposes. Id. ¶ 59-67. By contrast, here the State offers no facts to satisfy
       the “reasonable suspicion” requirement for the detention that followed the search of
       defendant’s person. According to the State, “the police had more than reasonable suspicion;
       they had probable cause in the form of search warrants for defendant’s person and his
       apartment.” This argument conflates the justification for the initial stop pursuant to the
       search warrant with the justification for defendant’s continued detention and transportation.
       As noted above, defendant does not challenge the officer’s authority to stop him based on
       the search warrant; thus, whether there was reasonable suspicion for the initial stop is
       irrelevant. Where the search revealed no contraband, the question is on what basis police
       could continue to detain defendant and transport him to the apartment. In Maxey, the brief
       detention and transportation of the defendant were necessary to confirm or dispel ongoing

                                                 -6-
       suspicion of a recent attempted robbery. Id. There was a specific need to transport the
       defendant for an immediate showup to determine whether police should continue or end the
       search for the “fleeing culprit.” (Internal quotation marks omitted.) Id. ¶ 66-67. There was
       no such need in the instant case. Here, the results of the search–keys, not drugs–did not fuel
       further suspicion that defendant had committed or was about to commit a crime, and there
       was no justification under Terry for defendant’s continued detention and transportation to
       the Flournoy apartment.
¶ 22       We note that the finding of probable cause to support the search warrant does not permit
       us to assume that there was probable cause or reasonable suspicion to justify the continued
       detention and transportation of defendant. These are related, but different, inquiries, and
       “[e]ach requires a showing of probabilities as to somewhat different facts and
       circumstances.” 2 Wayne R. LaFave, Search and Seizure § 3.1(b), at 8-9 (4th ed. 2004). “In
       the case of arrest, the conclusion concerns the guilt of the arrestee, whereas in the case of
       search warrants, the conclusions go to the connection of the items sought with crime and to
       their present location.” Id. at 10. The same holds true for the State’s Terry argument: the
       search warrant does not, by its mere existence, give rise to reasonable suspicion that justifies
       the continued detention and transportation of defendant. While this information supporting
       the search warrant is now part of the record,1 the State has never argued–in the motion to
       supplement the record, in its brief, or at oral argument–that the specific facts n the complaint
       for the search warrant support an independent finding of probable cause or reasonable
       suspicion that would justify the seizure. Instead, the State simply argues that because police
       had a reason to believe there were drugs in the Flournoy apartment (i.e., they had probable
       cause for the search warrant), they also had probable cause, or at least reasonable suspicion,
       that allowed for defendant’s continued detention and transportation. Where the search of
       defendant revealed no narcotics and police had not yet found any narcotics or contraband at
       the apartment, the mere expectation that police would find drugs in the apartment, without
       more, cannot justify defendant’s continued detention and transportation to the apartment.
¶ 23       The State next argues that the detention of defendant was a valid seizure incident to the
       execution of the search warrant under the principles announced in Michigan v. Summers, 452
       U.S. 692 (1981). In Summers, police officers were about to execute a warrant to search a
       house for narcotics when they encountered the defendant descending the front steps. 452 U.S.
       at 693. The officers found narcotics in the house, learned that the defendant owned the house,
       and then arrested him. Id. Although the Court found that the initial detention of the defendant
       constituted a “seizure” and assumed that it was not supported by probable cause (id. at 696),


               1
                 The information supporting the search warrant was originally not part of the record, but
       following oral arguments in this case, the State filed a motion to make the complaint for search
       warrant part of the record. Defendant filed no opposition, and we granted the motion. According to
       the complaint for search warrant, an unidentified individual purchased ecstacy from defendant, once
       just outside the Flournoy apartment and once inside the apartment, and the individual saw defendant
       go into the front bedroom to retrieve drugs. While the State, on appeal, has not argued that the
       information supporting the search warrant justified the defendant’s detention, this information may
       be relevant to a motion to suppress filed on remand.

                                                  -7-
       the Court noted that some seizures “constitute such limited intrusions on the personal
       security of those detained and are justified by such substantial law enforcement interests that
       they may be made on less than probable cause, so long as police have an articulable basis for
       suspecting criminal activity” (id. at 699). In the case before it, the “incremental intrusion”
       caused by detention was slight compared with “the inconvenience [and] the indignity
       associated with a compelled visit to the police station.” Id. at 702-03. The Court then
       identified three law enforcement interests that justified the incremental intrusion: (1)
       preventing flight in the event that incriminating evidence is found; (2) minimizing the risk
       of harm to the officers; and (3) facilitating the orderly completion of the search. Id.
       Ultimately, the Court announced a categorical rule allowing for seizure of a person even
       when the police do not have probable cause: “a warrant to search for contraband founded on
       probable cause implicitly carries with it the limited authority to detain the occupants of the
       premises while a proper search is conducted.” Id. at 711.2
¶ 24       Since the Supreme Court’s decision in Summers, several courts have held that the
       authority to detain an occupant during the execution of a search warrant for the premises also
       extends to the detention and transportation of an occupant who leaves the premises
       immediately before the execution of the search warrant and is detained as soon as practicable
       after leaving. These courts have “decline[d] to delineate a geographic boundary at which the
       Summers holding becomes inapplicable” and instead “consider whether the police detained
       the individual ‘as soon as practicable’ after observing him leave the residence.” United States
       v. Montieth, 662 F.3d 660, 666 (4th Cir. 2011) (quoting United States v. Bailey, 652 F.3d
       197, 206 (2d Cir. 2011) (finding that detention is justified where the police “identify an
       individual in the process of leaving the premises subject to search and detain him as soon as
       practicable during the execution of the search” (emphasis in original))); United States v.
       Bullock, 632 F.3d 1004, 1020 (7th Cir. 2011) (finding detention justified under Summers


               2
                 We note that on appeal, defendant has referred to his roadside detention following the
       search as an “arrest” because Officer Hall handcuffed him, placed him in a squad car, and
       transported him to the apartment. In deciding whether a detention exceeds the bounds of a limited
       detention under Summers or an investigatory stop under Terry, courts must determine whether the
       degree of the intrusion was reasonable in relation to the facts known at the time. See, e.g., People
       v. Conner, 358 Ill. App. 3d 945, 949 (2005) (concluding that use of handcuffs during Summers
       detention was reasonable under the circumstances); United States v. Bullock, 632 F.3d 1004, 1021
       (7th Cir. 2011) (finding that under Summers, “roadside detention followed by handcuffs and
       placement in a squad car certainly carries more stigma than a detention in one’s home, [but] the facts
       in this case warranted the additional intrusions for the limited time to execute the search warrant”);
       People v. Johnson, 408 Ill. App. 3d 107, 119 (2010) (concluding that police officer’s actions in
       handcuffing defendant constituted an arrest, rather than a Terry stop, where such use of force was
       not reasonable based on the facts surrounding the stop); People v. Maxey, 2011 IL App (1st) 100011,
       ¶¶ 59-68 (finding that continued detention and transportation of defendant for identification purposes
       did not transform Terry stop into an illegal seizure or arrest, where the decision to transport
       defendant was “reasonable” and sufficiently limited). In light of our resolution of this appeal, we do
       not reach the question of whether the intrusiveness of the detention was reasonable under the
       circumstances.

                                                    -8-
       where officer who observed defendant leave the premises “had to radio uniformed officers
       to make the stop” and there was “nothing to suggest that the vehicle was not pulled over as
       soon as practicable”); United States v. Cavazos, 288 F.3d 706, 712 (5th Cir. 2002); United
       States v. Cochran, 939 F.2d 337 (6th Cir. 1991); accord Williamson v. State, 921 A.2d 221,
       234 (Md. 2007) (“Because the police, to promote officer safety, detained [defendant]
       immediately after he left the house, before he entered his car and drove away, police were
       justified in detaining him and bringing him back into the house during the search.”); Rochon
       v. State, 2008 OK CR 1, 176 P.3d 362; State v. Madsen, 2000-NMCA-050, 5 P.3d 573.
¶ 25        Some courts have rejected the expansion of Summers to cover occupants who had just
       left the premises and are seized some distance away from the premises. See, e.g., United
       States v. Sherrill, 27 F.3d 344, 346 (8th Cir. 1994) (Summers did not authorize stopping the
       defendant one block from his home, as “intrusiveness of the officers’ stop and detention on
       the street was much greater” than in-home detention, and “officers had no interest in
       preventing flight or minimizing the search’s risks because [defendant] had left the area of the
       search and was unaware of the warrant”); United States v. Edwards, 103 F.3d 90, 94 (10th
       Cir. 1996) (Summers did not justify 45-minute detention of defendant, who left premises
       before warrant execution began and was stopped three blocks away, as defendant’s
       “streetside detention played no part in facilitating the orderly completion of a search being
       conducted three blocks away,” and defendant “had no reason to flee” because he “did not
       know–prior to being stopped–that any warrant was being executed” (emphasis in original));
       United States v. Reinholz, 245 F.3d 765, 778 (8th Cir. 2001) (“Summers does not apply to
       this case, however, because Reinholz was not on the premises being searched when he was
       detained,” but instead “was at work, at least a twenty-five minute drive from his residence”);
       Commonwealth v. Charros, 824 N.E.2d 809, 816 (Mass. 2005) (finding that Summers did
       not allow police to stop the defendant a mile away from his residence and then bring him
       there for search warrant execution because such seizures “produce[ ] all the indignity of an
       arrest in full view of the public”); Parks v. Commonwealth, 192 S.W.3d 318 (Ky. 2006).
¶ 26        The parties have cited no Illinois decision that addresses the expansion of Summers to
       occupants of premises who have just left and are detained as soon as practicable. In this
       particular case, we need not decide the issue. Although the State struggles to fit the facts of
       this case into the “recent occupant” mold, the State’s description of events is wholly
       speculative in view of the record on appeal. The State argues that because Officer Hall found
       defendant one mile from the Flournoy apartment within the same “narrow time frame” that
       Officer Coleman conducted surveillance there, Officer Coleman must have seen defendant
       leave the apartment and radioed Officer Hall the direction in which defendant was heading.
       In the record before us, however, there is no affirmative evidence that Officer Coleman or
       any other officer observed the defendant come or go from the Flournoy address just before
       defendant’s roadside detention. We question whether Officer Hall and Officer Coleman
       would have left such a basic fact out of their description of the day’s events.
¶ 27        Setting that question aside, neither the “narrow time frame” nor defendant’s proximity
       to the Flournoy apartment provides anything close to definitive evidence that Officer
       Coleman observed defendant leave the apartment. As to the sequence of events, it is unclear
       whether Officer Coleman even began his surveillance before Officer Hall curbed defendant’s

                                                -9-
       vehicle: Officer Hall encountered defendant “sometime after 4:00 p.m.,” and Officer
       Coleman’s surveillance began around 4:35 p.m. or 4:45 p.m. As for defendant’s location,
       Officer Hall indicated that his “task was to circle the area around Madison and Kostner and
       try to locate” defendant. Officer Hall found him just two blocks from Madison and Kostner–a
       full 10 blocks away from the Flournoy apartment. At best, the record fails to contradict the
       State’s version of events. There is simply no indication that Officer Coleman or any other
       officer observed defendant leave the Flournoy apartment just before Officer Hall encountered
       him on the street.
¶ 28        Apart from its factual arguments, the State has not asked us to expand Summers to cover
       a situation where there is no evidence that defendant had recently left the premises and was
       stopped some distance away. While neither party has cited a case where Summers has been
       applied to facts similar to those here, those courts that have extended the doctrine to recent
       occupants have sounded a “note of caution” about further expansion of the Summers rule:
            “Summers is not a license for law enforcement to detain ‘occupants’ of premises subject
            to a search warrant anywhere they may be found incident to that search. Instead, we hold
            today that Summers authorizes law enforcement to detain the occupant of premises
            subject to a valid search warrant when that person is seen leaving those premises and the
            detention is effected as soon as reasonably practicable.” (Emphasis in original.) United
            States v. Bailey, 652 F.3d 197, 208 (2d Cir. 2011).
       We therefore hold that on the record before us, Summers did not allow the police to detain
       and transport defendant incident to the execution of the search warrant, where there was no
       indication that the police detained him as soon as practicable after observing him leave the
       residence. Again, our sole inquiry is whether the motion to suppress evidence bore a
       reasonable probability of success. For the purposes of this appeal, we need not, and do not,
       endorse those decisions that have extended Summers to allow for detention of occupants who
       have recently left their residence and are detained as soon as practicable somewhere outside
       the residence.
¶ 29        Finally, the State argues that even if defendant’s detention and transportation constitute
       an illegal seizure, his statements to police were sufficiently attenuated from the detention
       such that the suppression of his statements is unwarranted. “[T]he relevant inquiry is whether
       the statements were obtained by exploitation of the allegedly illegal arrest or by means
       sufficiently distinguishable to be purged of the primary taint” of illegality. (Internal quotation
       marks omitted.) People v. Johnson, 237 Ill. 2d 81, 93 (2010) (quoting People v. Morris, 209
       Ill. 2d 137, 157 (2004)). Factors to be considered in determining whether a statement is the
       product of an illegal arrest include: (1) the proximity in time between the arrest and the
       statement; (2) the presence of intervening circumstances; (3) the flagrancy of the police
       misconduct; and (4) whether Miranda warnings were given before the statements were made.
       Id.
¶ 30        Focusing on the second factor, the State contends that the recovery of the shotgun in the
       apartment created independent, intervening probable cause for defendant’s arrest. While the
       discovery of the gun at least raises the possibility of intervening probable cause, we agree
       with defendant that the attenuation inquiry is premature based on the limited question


                                                 -10-
       presented in the appeal. The attenuation question might not even arise if the trial court
       determines that the motion to suppress should not be granted in light of new facts developed
       at a suppression hearing on remand. If the circuit court does eventually reach the attenuation
       question, the facts surrounding the probable cause inquiry should be developed at a hearing.
¶ 31        The State assumes, without discussion, that the discovery of the gun automatically
       warrants a finding of probable cause to arrest. The State draws analogy to People v. Johnson,
       where our supreme court found that there was intervening probable cause to arrest the
       defendant based on the discovery of a gun under the passenger seat of a car. 237 Ill. 2d at 94.
       In that case, however, the discovery of the gun gave rise to probable cause because the police
       were investigating a nearby shooting and observed defendant and the driver, who appeared
       nervous, exit the car where the gun was found. Id. at 84-86. This case, by contrast, involves
       a fact-intensive inquiry related to constructive possession of a weapon found hidden
       underneath a bed in a three-bedroom apartment. The complaint for search warrant states that
       4310 Flournoy was defendant’s residence, without explanation, and that an unidentified
       person told police that he or she saw defendant go in the front bedroom of the apartment to
       retrieve drugs to sell. Beyond this, there is no indication about what police knew about
       defendant’s connection to the apartment. More specifically, there are no facts on record that
       indicate how police connected defendant to the gun found hidden under the bed of the middle
       bedroom in the three-bedroom apartment. Both parties should have the opportunity to
       develop these facts on remand, assuming that the circuit court even finds it necessary to
       address the attenuation issue.
¶ 32        The last step in our prejudice inquiry is to determine if there is a reasonable probability
       that the outcome of the trial would have been different had defendant’s statements been
       suppressed. See People v. Bew, 228 Ill. 2d 122, 127 (2008). The central question for the trial
       court was whether defendant had constructive possession of the gun found hidden under the
       bed in the middle bedroom of 4310 West Flournoy. To establish constructive possession, the
       State must prove that defendant had knowledge of the presence of the weapon and defendant
       had immediate and exclusive control over the area where the weapon was found. See People
       v. Grant, 339 Ill. App. 3d 792, 798 (2003). Apart from defendant’s statement, several defense
       witnesses testified that while defendant had access to the Flournoy apartment and sometimes
       slept there in his girlfriend’s bedroom, he did not pay rent or receive mail there and lived at
       another residence. Defendant testified that he only entered the residence with his girlfriend’s
       permission and did not know about the gun hidden underneath the bed. The crucial piece of
       evidence that established defendant’s knowledge and control was his statement that he
       “lived” at the Flournoy apartment and that he brought the gun into the apartment. The trial
       court stated as much in its ruling, finding that “what is most damning is the [d]efendant’s
       alleged statement where he says, ‘It’s mine.’ ” We conclude that had defendant’s statements
       been suppressed, there is a reasonable probability that the outcome of the trial would have
       been different.

¶ 33                               Deficient Representation
¶ 34      Defendant argues that there is no reasonable basis why his counsel did not file a motion


                                                -11-
       to suppress, and his trial counsel’s performance was therefore deficient under constitutional
       standards. To establish deficient representation, defendant must prove that counsel’s
       performance, as judged by an objective standard of competence under prevailing professional
       norms, was so deficient that counsel was not functioning as the “counsel” guaranteed by the
       sixth amendment. People v. Evans, 186 Ill. 2d 83, 93 (1999). In other words, defendant must
       establish that his lawyer’s performance fell below an objective standard of reasonableness.
       People v. Steels, 277 Ill. App. 3d 123, 127 (1995). “[T]he decision whether to file a motion
       to suppress is generally ‘a matter of trial strategy, which is entitled to great deference.’ ”
       People v. Bew, 228 Ill. 2d 122, 127 (2008) (quoting People v. White, 221 Ill. 2d 1, 21
       (2006)). Defendant must overcome the presumption that the decision not to file the motion
       was “the product of sound trial strategy.” (Internal quotation marks omitted.) People v.
       Manning, 241 Ill. 2d 319, 327 (2011).
¶ 35        Defendant has overcome the presumption in this case. We see no reasonable trial strategy
       in trial counsel’s decision not to file a motion to suppress defendant’s statement to the police.
       As explained in detail above, a successful motion to suppress would have removed the most
       damaging evidence connecting defendant to the gun. The motion would have been
       defendant’s best chance at success, and there is no indication that such a motion would have
       harmed defendant’s case. See People v. Little, 322 Ill. App. 3d 607, 613 (2001) (“A motion
       to quash and suppress would have been defense counsel’s strongest, and most likely wisest,
       course of action. The fact counsel had other defense options available to him does not excuse
       counsel’s failure not to file a pretrial suppression motion.”).
¶ 36        Apart from trial strategy, there is no basis in the record to excuse trial counsel’s failure
       to file the motion. When the trial court raised the issue after both parties had rested, trial
       counsel argued that the police reports and other pretrial discovery stated that defendant was
       “detained” at the vehicle stop, but that he was arrested later, after the gun was found, at 4310
       West Flournoy. Trial counsel claimed that, as a consequence, he could not have known that
       a basis for the motion existed until the trial had commenced. We do not agree. First, even if
       the defendant was not “arrested,” he was unquestionably seized within the meaning of the
       fourth amendment when he was handcuffed, placed in the squad car, and transported to the
       apartment. The police must have some justification for that seizure, just as they must for an
       arrest. Second, the fact of when an arrest occurs is a legal conclusion, determined by the trier
       of fact based on the totality of the circumstances. See People v. Hopkins, 235 Ill. 2d 453, 472
       (2009). The timing or existence of an arrest does not depend on whether an officer uses the
       word “arrest” in a police report or in testimony. See Brendlin v. California, 551 U.S. 249,
       260 (2007); cf. People v. Johnson, 408 Ill. App. 3d 107, 119 (2010) (“[P]robable cause is an
       objective standard, and a police officer’s subjective belief regarding its existence is not
       determinative.”). Finally, even if it was Officer Hall’s testimony that made defense counsel
       aware of the possibility of filing a motion, defense counsel admitted that he never made a
       motion before both sides rested. The trial court is authorized to hold a joint suppression
       hearing and a bench trial (People v. Givens, 237 Ill. 2d 311, 332 (2010)), and a defendant
       may make a motion to suppress once trial has already started if he was not previously aware
       of the grounds of the motion. See 725 ILCS 5/114-11(g), 114-12(c) (West 2008); People v.
       Hoffman, 84 Ill. 2d 480, 485 (1981); People v. Flatt, 82 Ill. 2d 250, 262-63 (1980).

                                                 -12-
¶ 37      Based on the foregoing, we conclude that defendant’s trial counsel’s failure to file a
       motion to suppress defendant’s statement to police constitutes deficient performance under
       constitutional standards, and this deficient performance prejudiced the defendant. Defendant
       was deprived of the effective assistance of counsel at trial.

¶ 38                                 Sufficiency of the Evidence
¶ 39        To quell any double jeopardy concerns, we finally address defendant’s argument that the
       State failed to prove his guilt beyond a reasonable doubt. See People v. Little, 322 Ill. App.
       3d 607, 613 (2001). “The double jeopardy clause forbids a second, or successive, trial for the
       purpose of affording the prosecution another opportunity to supply evidence it failed to
       muster in the first proceeding.” People v. Olivera, 164 Ill. 2d 382, 393 (1995). While the
       ineffective assistance of counsel requires us to remand to the circuit court for further
       proceedings, if defendant is correct that the evidence was insufficient for a conviction, “the
       only proper remedy is a judgment of acquittal.” Id. If, on the other hand, “the totality of the
       evidence presented at defendant’s first trial was sufficient for a rational trier of fact to find
       that the essential elements of the crime had been proven beyond a reasonable doubt, no
       double jeopardy violation is created on retrial.” People v. Ward, 2011 IL 108690, ¶ 50 (citing
       People v. McKown, 236 Ill. 2d 278, 312 (2010)).
¶ 40        On a challenge to the sufficiency of the evidence, “the relevant question is whether, after
       viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
       could have found the essential elements of the crime beyond a reasonable doubt.” People v.
       Smith, 185 Ill. 2d 532, 541 (1999). To sustain a conviction for unlawful possession of a
       weapon by a felon, the State must prove defendant has a prior felony conviction and
       defendant had knowing possession of a prohibited weapon. 720 ILCS 5/24-1.1 (West 2008);
       People v. Hampton, 358 Ill. App. 3d 1029, 1031 (2005). Possession may be actual or
       constructive. People v. Grant, 339 Ill. App. 3d 792, 798 (2003). Constructive possession is
       shown where defendant had knowledge of the presence of the weapon and defendant had
       immediate and exclusive control over the area where the weapon was found. Id. “Where
       [contraband is] found on premises under defendant’s control, it may be inferred that he had
       the requisite knowledge and possession, absent other facts and circumstances which might
       leave a reasonable doubt as to guilt in the minds of the jury.” People v. Freiberg, 147 Ill. 2d
       326, 361 (1992). The mere fact that others had access to the premises does not defeat
       constructive possession because the law recognizes the possibility of joint possession. People
       v. Hill, 226 Ill. App. 3d 670, 672-73 (1992).
¶ 41        Defendant argues that the evidence was insufficient to find that defendant constructively
       possessed the weapon, even though Officer Coleman testified that defendant admitted that
       the gun was his, he brought it into the apartment, and he had been living at the apartment
       with his girlfriend for five months. At trial, defendant denied making this statement to
       Officer Coleman, and he now claims that Officer Coleman’s testimony is incredible. It is the
       responsibility of the fact finder to resolve conflicting testimony, assess the credibility of
       witnesses, and determine the weight to be given to their testimony. People v. Jimerson, 127
       Ill. 2d 12, 43 (1989). The fact finder’s acceptance of testimony is entitled to great deference.


                                                 -13-
       People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Here, the trial judge acknowledged that
       he was making a credibility determination, and he credited the police officer’s testimony over
       the defendant’s testimony. We do not view the officer’s testimony as so flawed or
       improbable that it was “impossible for any fact finder reasonably to accept *** it.” Id. at 283.
       Viewing the evidence in the light most favorable to the prosecution, we conclude that a
       rational trier of fact could have found that defendant had constructive possession of the gun.
       See, e.g., People v. Chicos, 205 Ill. App. 3d 928, 935 (1990) (evidence was sufficient for
       constructive possession where defendant possessed a key to the apartment and confessed that
       she lived in the apartment and the contraband was hers); People v. Brown, 327 Ill. App. 3d
       816 (2002) (evidence was sufficient to find constructive possession where defendant
       admitted bringing the gun into his girlfriend’s apartment and testimony established that
       defendant had been staying there around the time the weapon was found).

¶ 42                              Second Amendment Challenge
¶ 43       In light of our decision to remand for a suppression hearing, we do not address
       defendant’s claim that the unlawful use of a weapon by a felon statute violates defendant’s
       second amendment rights. See People v. Carpenter, 228 Ill. 2d 250, 264 (2008) (“[A] court
       of review should consider the constitutionality of a statute as a matter of last resort, only after
       the resolution of any other nonconstitutional and constitutional grounds for disposing of the
       case.”).

¶ 44                                      CONCLUSION
¶ 45       We have limited our review of defendant’s ineffective assistance claim to the record
       before us, and we have determined that a motion to suppress had a reasonable probability of
       success. As this court has recognized, at this stage “[i]t is not our desire or purpose to decide
       a motion to suppress that never was presented, argued, or ruled on in the trial court.” People
       v. Steels, 277 Ill. App. 3d 123, 128 (1995). Our supreme court has directed that the proper
       resolution in this situation is to retain jurisdiction and remand to the circuit court for a
       suppression hearing. See People v. Cokley, 211 Ill. 2d 589 (2004) (supervisory order)
       (directing this procedure and vacating the judgment of the appellate court that had reversed
       and remanded for a new trial); People v. Davis, 211 Ill. 2d 590 (2004) (supervisory order);
       People v. Malek, 225 Ill. 2d 657 (2007) (supervisory order). If the outcome of the
       suppression hearing requires, a new trial should be held; otherwise, the case should return
       to the appellate court for consideration of the remaining issues. See Cokley, 211 Ill. 2d 589.

¶ 46       Jurisdiction retained; remanded for suppression hearing.




                                                  -14-
