People v. Ortega , 2022 IL App (1st) 162516 ( 2022 )

2022 IL App (1st) 162516-UB
No. 1-16-2516
Order filed February 4, 2022
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 20996
)
RUDOLPH ORTEGA, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court.
Justices Hoffman and Rochford concurred in the judgment.
ORDER
¶1 Held: Because the defendant could not establish prejudice from his counsel’s failure to
present evidence in support of his motion to quash a search warrant and suppress
evidence, his contention of ineffective assistance fails.
¶2 Defendant Rudolph Ortega was convicted of possession of over 5000 grams of cannabis
and sentenced to four years in prison. On appeal, he contended that his trial counsel was ineffective
for (1) failing to present evidence regarding certain disputed facts at the hearing on his motion to
quash the search warrant of the vehicle in which police found the cannabis, and (2) failing to
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provide affidavits in support of the defense motion for a hearing pursuant to Franks v. Delaware,
438 U.S. 154 (1978). We remanded for the sole purpose of holding a Franks hearing but retained
jurisdiction to address defendant’s first allegation of ineffective assistance of counsel if Franks
relief were denied. People v. Ortega, 2020 IL App (1st) 162516, ¶ 32 (Ortega I).
¶3 After our remand, the circuit court held a Franks hearing and denied relief. Defendant’s
appellate counsel advised this court in a status report that the defense does not request further
briefing regarding the denial of the Franks motion. Therefore, we now address defendant’s
remaining contention: that his trial counsel was ineffective for failing to present evidence, as
opposed to only argument, at the hearing on his motion to quash the search warrant of the vehicle
and suppress evidence.
¶4 The facts are set forth in detail in Ortega I and we repeat only those relevant to the issue
now pending before us. On November 2, 2014, a truck driver transporting a BMW automobile
from Nevada to Chicago stopped in Naperville to unload a different vehicle from the truck. When
the truck driver attempted to drive the BMW off the truck to accommodate the other vehicle, the
driver discovered the BMW’s battery was dead. The driver looked in the trunk, found multiple
bundles wrapped in duct tape, and contacted the local police. The Naperville police obtained two
search warrants: one to search the BMW and ascertain the contents of the packages in the trunk,
and the other to place a tracking device on the BMW to monitor its location. At some point, the
packages field-tested positive for cannabis. When the BMW arrived in Chicago, the truck driver
followed his prearranged instructions and called a phone number to determine the precise delivery
location. Defendant, codefendant Marcella Acosta, and codefendant Lilian Masso met the truck
driver at a Home Depot parking lot in Chicago. Defendant then drove the BMW to Masso’s house
and parked it in the detached garage. While the garage door was open, police observed defendant
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moving packages from the trunk of the BMW into a bag held by Acosta. Police entered the garage
and detained defendant and Acosta. The packages tested positive for 5113.8 grams of cannabis.
Following this arrest, defendant, Acosta, and Masso were charged by indictment with possession
of over 5000 grams of cannabis with intent to deliver.
¶5 Defendant filed several pretrial motions. The motion at issue in this appeal was titled
“Motion to Quash Search Warrant #17998 and Suppress Evidence Illegally Obtained.” In that
motion, defendant alleged that the warrant to search the BMW—which is not included in the record
on appeal—was belatedly issued after the BMW had already been searched. 1 He asserted that an
officer and his drug-sniffing dog arrived on the scene after the truck driver contacted the Naperville
police but before any warrant was issued. Referencing a “supplemental [police] report,” which is
also not included in the record on appeal, defendant stated that the dog jumped through an open
window, into the BMW, and unlawfully sniffed the BMW’s interior before it alerted to the
presence of drugs.
¶6 Defendant further asserted that the four “factors” listed by Naperville Police Sergeant Scott
Thorsen in the complaint for the warrant were “completely unsubstantiated, foundationless factual
statements” that did not establish probable cause for a warrant to issue. The complaint for the
warrant is not in the record, but according to defendant’s motion, it set out the following four facts
to show the existence of probable cause: (1) several rectangular duct-taped packages, some with
unknown red writing on the outside, were in the trunk; (2) an empty gas can wrapped in a plastic
bag was in the trunk of the vehicle; (3) a police dog alerted that there were narcotics in the BMW;
and (4) while the registration “attached” to the BMW was to two people in Nevada, the registration
1
We note that defendant, as the appellant, has the duty to present a complete record on
appeal. People v. Gilbert, 2013 IL App (1st) 103055, ¶ 17.
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“returns on a 1986 Suzuki motorcycle not a 2002 BMW 325i.” Challenging these facts, defendant
argued that (1) the packages were not inherently contraband by their nature or outer appearance,
(2) the mere existence of a gas can does not provide reasonable suspicion or probable cause, (3)
the dog had been trained in Michigan but was not certified in Illinois until six months after the
search was executed, and (4) a “reporting officer narrative” indicated the BMW’s temporary
registration did not have a current record.
¶7 Defendant also filed a “Motion for a Franks hearing to Quash Search Warrant *** and
Suppress Evidence Illegally Obtained,” in which he alleged that Thorsen’s complaint for a warrant
to search the BMW contained “a stockpile” of false statements that merited the granting of an
evidentiary hearing pursuant to Franks, as well as the quashing of the warrant and the suppression
of all evidence obtained as a result of its execution. This motion was addressed at length in our
2020 opinion.
¶8 The main hearing on defendant motions took place on June 15, 2016. Counsel for Acosta
took the lead and argued on behalf of both defendant and Acosta, with occasional clarifications by
defendant’s own counsel. As noted in Ortega I, Acosta’s counsel and the court engaged in a
colloquy to the effect that the motion should be considered on a strictly legal basis without the
presentation of evidence. Ortega I, ¶¶ 10-15. Defendant’s counsel voiced no disagreement with
the court’s contemplating the consideration of the motions on a strictly legal basis. Id. ¶ 10.
¶9 After hearing extensive arguments, the circuit court found that the initial search of the car
was lawful because the truck driver, as bailee, gave permission for it. Id. ¶ 15. The court
commented, however, that was not necessarily the case with respect to the search at the Chicago
garage. Id. ¶ 16.
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¶ 10 During a discussion with the parties about scheduling a hearing on a different motion
specifically challenging the search of the car in the Chicago garage, the court stated:
“There’s not going to be any Franks [hearing]. I don’t see any reckless disregard
of the truth or purposeful lies that caused the warrant to be issued, that wouldn’t have been
issued. Otherwise, I don’t believe—not even so sure they needed a warrant under the
scenario I’ve been listening to today; but a judge signed it; and it’s more, like, just to be
careful after the fact.” Id. ¶ 17.
At the conclusion of the hearing, the court stated that the motion to quash the search warrant and
the motion for a Franks hearing were denied. Id.
¶ 11 Defendant filed two other pretrial motions. One, a “Motion to Suppress Statements,”
challenged an inculpatory statement defendant made in a police car following his arrest, on the
basis that it was coerced. The second, a “Motion to Quash Arrest and Suppress Evidence,”
challenged the search of the BMW in Masso’s garage. The court denied both of these motions
following hearings. Id. ¶ 18.
¶ 12 By agreement, the arguments and evidence presented at the suppression hearings were
incorporated into the trial by reference. Id. ¶ 19 (discussing trial evidence in detail). Following the
trial, the court found defendant guilty of the lesser-included offense of possession of over 5000
grams of cannabis and sentenced him to four years in prison. Id. ¶ 21.
¶ 13 As noted, defendant contended on appeal in Ortega I that his trial counsel was ineffective
for (1) failing to present evidence regarding certain disputed facts at the hearing on his motion to
quash the search warrant of the vehicle and suppress evidence, and (2) failing to provide affidavits
in support of the defense motion for a Franks hearing. Id. ¶ 23. Following oral argument, we
remanded for the sole purpose of holding a Franks hearing, noting that if the circuit court denied
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Franks relief, we would address defendant’s first allegation of ineffective assistance of counsel,
over which we retained jurisdiction. Id. ¶ 32. The circuit court has now held a Franks hearing and
denied relief. Accordingly, we now address defendant’s remaining argument.
¶ 14 Defendant argues that his trial counsel was ineffective for failing to present evidence at the
hearing on his motion to quash the warrant and suppress evidence where “there were facts in
dispute,” which prejudiced him as his motion was denied. The disputed facts, according to
defendant’s brief, were (1) what time the search of the BMW occurred, (2) whether the search
occurred before the warrant issued, and (3) whether the packages in the trunk were opened before
the warrant issued. Defendant maintains that without evidence—rather than merely argument—on
these issues, the court could not determine whether a fourth amendment violation occurred.
¶ 15 At oral argument before this court in Ortega I, defendant conceded that the truck driver, as
a bailee, had authority to allow the police to search the BMW. Id. ¶ 27. However, he maintained
that this authority did not extend to allowing the police to open the sealed packages found in the
trunk. He contended that opening the packages required a valid warrant, even though the packages
were in the trunk of the bailed BMW which was then in the hired truck driver’s custody as bailee.
¶ 16 In reviewing claims of ineffective assistance of counsel, appellate courts “use a bifurcated
standard of review, wherein we defer to the trial court’s findings of fact unless they are against the
manifest weight of the evidence, but make a de novo assessment of the ultimate legal issue of
whether counsel’s actions support an ineffective assistance claim.” People v. Nowicki, 385 Ill.
App. 3d 53, 81 (2008). In this case, where defendant is not challenging any findings of fact made
by the trial court, but rather, is arguing that the trial court should have been presented with evidence
to be used in resolving factual disputes, we consider de novo whether defendant has stated a claim
for ineffective assistance of counsel.
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¶ 17 To establish ineffective assistance of counsel, a defendant must show (1) that his counsel’s
representation fell below an objective standard of reasonableness, and (2) but for counsel’s errors,
there is a reasonable probability that the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); People v. Griffin, 148 Ill. 2d 45, 57
(1992). A “reasonable probability” is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694. If a claim may be determined on the basis that there is no
prejudice, it is not necessary for a reviewing court to consider whether counsel’s performance was
deficient. See id. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice *** that course should be followed.”).
¶ 18 In Ortega I, we observed that the circuit court determined defendant did not have standing
to challenge the search of the BMW because the bailee permitted the search, and then, having
found so, the court essentially concluded its analysis. Ortega I, ¶ 26. We characterized the circuit
court’s analysis as incomplete. Id. ¶ 27. While there was no dispute that a bailment occurred, or
that this bailment led to the truck driver having apparent authority to allow the police to search the
BMW, we found that the truck driver did not have apparent authority to allow the police to open
the sealed packages in the BMW’s trunk. Id. ¶¶ 27-28. Thus, under United States v. Jacobsen, 466
U.S. 109, 114 (1984), a warrant was required. Id. ¶ 29.
¶ 19 In Ortega I, we “agree[d] with defendant that whether a valid warrant existed at the time
the packages were opened is a question the trial court could not have answered without having
been presented with actual evidence, rather than just arguments made by attorneys.” Id. ¶ 31. As
such, we found it was objectively unreasonable for counsel to proceed at the hearing with no
evidence on this point, and a reasonable probability existed that the result of the proceeding would
have been different had counsel not failed in this respect. Id.
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¶ 20 We acknowledged that the United States Supreme Court has held, as an extension of the
exception to the search warrant requirement for moving vehicles, that the police may search a
container or package found in an automobile without a warrant if the search of the automobile is
supported by probable cause or if the police have probable cause to believe the package contains
contraband or evidence. Id. ¶ 30 (citing California v. Acevedo, 500 U.S. 565, 569, 570, 579-80
(1991); United States v. Ross, 456 U.S. 798, 825 (1982)). However, we found that the circuit court
did not reach the issue of whether probable cause existed, and that evidence that could have
supported or refuted a finding of probable cause was not introduced at the hearing. Id. “In the
absence of such evidence,” we concluded, “the trial court could [not] have made a finding
regarding whether probable cause existed for the police to search the sealed packages in the
BMW’s trunk.” Id.¶ 21 Thus, the question now before us is whether trial counsel was ineffective for not presenting
evidence at the hearing on the motion to quash and suppress regarding whether (1) a valid warrant
existed at the time the packages were opened, or (2) the police had probable cause to search the
packages in the trunk.
¶ 22 At the Franks hearing, evidence regarding the warrant was presented through the testimony
by Sergeant Thorsen. Thorsen’s testimony provided evidence on all three of the “facts in dispute”
that defendant has identified on appeal: what time the search of the BMW occurred, whether the
search occurred before the warrant issued, and whether the packages in the trunk were opened
before the warrant issued. Moreover, the circuit court’s findings at the Franks hearing indicate
that, had defense counsel introduced evidence on these “facts in dispute,” the court still would
have denied the motion to quash and suppress.
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¶ 23 Thorsen was called as a defense witness at the Franks hearing and testified that, on
November 2, 2014, he responded to a call regarding the present case by going to the police
department. While he was there, several officers who were on-scene relayed information to aid
him in preparing a complaint for a search warrant of the BMW. The on-scene officers reported
“that they had to hop up onto the second story of the car hauler to view the [BMW].” They further
reported the truck driver had observed several rectangular, duct-taped packages in the trunk of the
BMW, under a “shelf” for the spare tire.
¶ 24 Thorsen agreed that he wrote a report stating that at “approximately 2130 hours,” he and a
detective met with a circuit court judge. However, he stated that the hour set forth in that report
was not accurate. Thorsen explained, “I did a supplemental report to that because it was Daylight
Savings Time. It was an error on my part.” He clarified that his meeting with the judge took place
at 8:30 p.m., not 9:30 p.m. He further stated that “[j]ust after” the search warrant was signed by
the judge, he called the detectives who were on scene and they executed the warrant. Prior to that
time, the on-scene officers were “just holding the vehicle out there” and had not entered the BMW.
¶ 25 On cross-examination by the State, Thorsen testified that he spoke with several on-scene
officers while preparing the complaint for a search warrant at the police department. Then, he
reviewed the warrant with an assistant State’s Attorney. Afterwards, he visited the judge’s home
and, while under oath, discussed the warrant. Thorsen reiterated that, although the search warrant
indicated it was signed at 9:30 p.m. and executed at 9:35 p.m., those times were actually 8:30 p.m.
and 8:35 p.m. Thorsen testified that when he got permission from the judge to execute the warrant,
he called the officers who were on-scene and they then executed the warrant. Sometime later, he
contacted the judge to confirm the actual time the warrant was signed and filled out a
supplementary report providing the correct time.
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¶ 26 On redirect examination, Thorsen confirmed that one of the on-scene officers wrote in a
report that, at 8:43 p.m., the transport truck left Naperville. Thorsen stated, “I called them
immediately after [the warrant] was signed. They verified what was in the packages and then they
departed.”
¶ 27 On re-cross examination, the State and Thorsen engaged in the following exchange:
“Q. Once you got that search warrant signed it takes from
8:35 p.m. to 8:43 p.m. before that car is in transport to be in a
controlled delivery, right?
A. Yes.
Q. What happens in the course of that eight minutes once
you call your team and say that there’s a search warrant?
A. They opened one of the packages and verified what was
inside—field tested what was inside.
Q. Then they take off and start delivering it, right?
A. Yes.”
¶ 28 The evidence that defendant identified as lacking at the hearing on the motion to quash the
warrant and suppress evidence—namely, regarding what time the search of the BMW occurred,
whether the BMW was searched before or after the warrant issued, and whether the packages in
the trunk were opened before or after the warrant issued—now exists in the record through the
testimony of Sergeant Thorsen.
¶ 29 During defense counsel’s argument on the motion, the court asked counsel, “The warrant
was signed. He calls his brother and sister officers, who are out at the scene, and tell him about it.
They take a look at what’s inside the packages. It turns out what they suspect. It’s contraband.
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Then [Thorsen] shows up when the seizure is made later, in Chicago, on Kimball Avenue. Right?”
Defense counsel answered, “Yes.”
¶ 30 In announcing its Franks findings, the court explained:
“I believe then and I believe now that when this truck driver
told the police what he discovered on his own and showed the police
what he discovered, there wasn’t a [sic] police activity. There’s no
4th Amendment concerns because this is a private person who called
the police and invited them. This is what I’m hauling. This is what I
have. Take a look at this. I think they have probable cause right then
and there. I never ever believed that a search warrant was ever
required on this case because I think this case is written [sic] with
probable cause from the get-go. Okay.
With that said, you have someone like Detective now
Sergeant Thorsen who is listening to this information and with what
could be described only as the most abundance of caution possible
puts the cherry on the sundae and decides, well, I’m going to get a
search warrant also. I’m going to dot every I and cross every T and
then get a warrant.
***
There was an initial seizure first when the police got there.
He asked the truck driver and they saw what they saw and then had
the dog. They were delaying the truck driver. They wanted the dog
to get there. They wanted to talk to the sergeant. They decided they
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had to wait for him to draft the warrant and get it signed by a Judge
and he did so. There were some issues about times and I
acknowledge there was some confusion about the timing of what
took place exactly at what time and the sergeant even had to go back
and correct his report because he neglected to account for Daylight
Savings Time. *** I don’t think that there’s anything here that they
need to be sanctioned for so the motion to quash the search warrant
and suppress the evidence that may have come from the execution
of the warrant on the Franks v. Delaware standard is respectfully
denied.”
¶ 31 According to Thorsen’s testimony at the Franks hearing, the warrant was signed at 8:30
p.m., and then the search of the BMW and the packages took place between 8:35 p.m. and 8:43
p.m., while the BMW was still on the “second story” of the transport truck. Based on this
chronology, we cannot find that, had counsel presented this evidence at the hearing on the motion
to quash the warrant and suppress evidence, the result would have been different. See Strickland,
466 U.S. at 694. The court credited Thorsen’s testimony at the Franks hearing, and we see no
reason why it would have reached a different conclusion regarding his credibility had he testified
at the hearing on the motion to quash the warrant and suppress evidence.
¶ 32 Since defendant cannot establish prejudice from counsel’s failure to present this evidence
at that juncture, we need not determine whether counsel’s performance was deficient. Id. at 697.
As such, defendant’s contention of ineffectiveness fails.
¶ 33 We affirm the judgment of the circuit court.
¶ 34 Affirmed.
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