People v. Hunter ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Hunter, 2013 IL App (3d) 110310Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CASEY D. HUNTER, Defendant-Appellant.
District & No. Third District
Docket No. 3-11-0310
Rule 23 Order filed January 11, 2013
Motion to publish
allowed February 8, 2013
Opinion filed February 8, 2013
Rehearing denied February 14, 2013
Held Defense counsel was not ineffective in failing to move to quash
(Note: This syllabus defendant’s arrest and suppress evidence that he possessed a firearm,
constitutes no part of regardless of defendant’s contentions that the arresting officers lacked
the opinion of the court probable cause or a reasonable suspicion to stop the truck in which
but has been prepared defendant was a passenger and that the seizure of defendant was
by the Reporter of unreasonable, since defendant fled when the truck was stopped, he was
Decisions for the not seized during the stop, his flight and subsequent discharge of a
convenience of the firearm provided probable cause for his ultimate seizure and arrest, and
reader.)
the proposed motions would have failed.
Decision Under Appeal from the Circuit Court of Rock Island County, No. 10-CF-420;
Review the Hon. Greg G. Chickris, Judge, presiding.
Judgment Affirmed.
Counsel on Yasaman Hannah Navai, of State Appellate Defender’s Office, of
Appeal Chicago, for appellant.
Mark Senko, State’s Attorney, of Rock Island (Terry A. Mertel and Justin
A. Nicolosi, both of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Justices McDade and Carter concurred in the judgment and opinion.
OPINION
¶1 Defendant, Casey D. Hunter, was charged with attempted first degree murder (720 ILCS
5/9-1(a)(1), 8-4 (West 2010)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(3)
(West 2010)), and unlawful possession of weapons by a felon (720 ILCS 5/24-1.1(a) (West
2010)). At a jury trial, defendant was found guilty of possession of weapons by a felon and
acquitted of the other two charges. Defendant challenges his conviction, arguing that his trial
counsel was ineffective for failing to file a motion to quash arrest and suppress evidence
establishing his possession of a firearm. We affirm.
¶2 FACTS
¶3 As a result of events that occurred on May 3, 2010, defendant was charged with
attempted first degree murder (720 ILCS 5/9-1(a)(1), 8-4 (West 2010)), aggravated discharge
of a firearm (720 ILCS 5/24-1.2(a)(3) (West 2010)), and unlawful possession of weapons by
a felon (720 ILCS 5/24-1.1(a) (West 2010)).
¶4 At trial Rock Island police officer Tim Muehler testified that at 2 p.m. on May 3, 2010,
he was patrolling in a marked squad car with Officer Jeff Key when Muehler noticed a
pickup truck parked on the street in front of a house that was a “known drug spot.” Several
weeks earlier, Rock Island police had executed a search warrant on the house as a result of
suspected drug dealing by a resident, Barry Hubbard. As Muehler and Key drove past the
house, they observed Hubbard sitting in the front yard. A white male was seated in the
truck’s driver seat, talking to a black male, later identified as defendant, who was seated in
the passenger seat. The officers drove past the truck, circled the block, and returned to the
home. By that time, the truck was gone.
¶5 Muehler and Key kept driving, later discovering the same truck stopped at a nearby
intersection. As the officers drove past the truck, they observed the same driver and
defendant seated inside. Both were staring straight ahead with “pretty scared” looks on their
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faces. The officers decided to follow the truck and executed a U-turn. As the officers turned
around, they observed the truck now parked about one block away from the drug house.
Defendant exited the truck and walked between two nearby houses and out of the officers’
sight. Key parked the cruiser in a nearby parking lot, and Muehler exited to observe the truck
on foot. Several minutes later, Muehler saw defendant approach the truck. The driver exited,
and the two talked on the sidewalk for about 30 seconds, before shaking hands, getting back
in the truck, and driving off. At that point, Muehler signaled for Key to pick him up so the
officers could follow the truck and execute a traffic stop.
¶6 Muehler and Key followed directly behind the truck in the cruiser. Key activated the
cruiser’s emergency lights and siren. The truck pulled into a parking lot and parked.
Immediately as the truck came to a stop, defendant exited the vehicle and ran from the truck.
Muehler chased defendant and could see the brown handle of a revolver poking out from his
waistband. After chasing defendant around the corner of a house, Muehler observed
defendant running with the revolver in his hand. Defendant stopped running, turned toward
Muehler, pointed the revolver in the air, and fired one shot. Muehler then fired one shot back,
missing defendant. Defendant began running again, and Muehler fired two more shots, which
hit defendant. Key then approached to assist Muehler in arresting defendant.
¶7 The trial court admitted into evidence the revolver and defendant’s later statements
admitting to possessing it. The jury convicted defendant of unlawful possession of weapons
by a felon but acquitted him of attempted murder and aggravated discharge of a firearm. The
trial court sentenced him to 10 years’ imprisonment. Defendant appeals.
¶8 ANALYSIS
¶9 Defendant argues that trial counsel was ineffective for failing to file a motion to quash
arrest and suppress evidence. Specifically, defendant argues that the officers did not have
probable cause or reasonable suspicion to initiate the traffic stop of the truck. The traffic stop
therefore resulted in an unreasonable seizure of defendant, tainting the subsequently
recovered evidence establishing defendant’s possession of a firearm.
¶ 10 In order to prevail on a claim of ineffective assistance of counsel, defendant must show
that: (1) counsel’s performance was deficient; and (2) counsel’s deficient performance
prejudiced defendant. Strickland v. Washington, 466 U.S. 668 (1984). Counsel’s decision
whether to file a motion to quash arrest or suppress evidence is generally “a matter of trial
strategy, which is entitled to great deference.” People v. White, 221 Ill. 2d 1, 21 (2006),
abrogated on other grounds by People v. Luedemann, 222 Ill. 2d 530 (2006). For counsel’s
decision to be considered deficient, defendant must show that the unfiled motion stood a
reasonable chance of success at the time of trial. People v. Bew, 228 Ill. 2d 122 (2008).
¶ 11 For a motion to quash arrest and suppress evidence to be successful in the present case,
defendant must first establish that the traffic stop constituted an unreasonable seizure of
defendant. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Defendant argues that the
traffic stop of the truck resulted in an unlawful seizure of defendant because it was not
supported by reasonable suspicion, as required by Terry v. Ohio, 392 U.S. 1 (1968). To
support a Terry stop, the officer must have specific and articulable facts which, taken
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together with rational inferences therefrom, reasonably warrant the intrusion. Id.; 725 ILCS
5/107-14 (West 2010).
¶ 12 In the present case, because defendant fled, he was not seized for purposes of the fourth
amendment. As a result, he cannot challenge the government’s action. Therefore, we do not
reach the question of whether the traffic stop was supported by reasonable suspicion.
¶ 13 As a general matter, a seizure is said to occur where “in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to
leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J., joined
by Rehnquist, J.). However, this test states “a necessary, but not a sufficient, condition for
seizure.” (Emphases in original.) California v. Hodari D., 499 U.S. 621, 628 (1991). A
seizure additionally requires that “ ‘the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen.’ ” Florida v. Bostick, 501 U.S.
429, 434 (1991) (quoting Ohio, 392 U.S. at 19 n.16). Defendant’s “freedom of movement”
must actually be restrained. Brendlin v. California, 551 U.S. 249, 254 (2007). In the absence
of officers applying physical force to restrain the suspect, the suspect is not seized until he
yields to the officer’s show of authority. Hodari D., 499 U.S. at 626 (“The narrow question
before us is whether, with respect to a show of authority as with respect to application of
physical force, a seizure occurs even though the subject does not yield. We hold that it does
not.”); Brendlin, 551 U.S. 249. While an officer yelling “Stop, in the name of the law!” may
constitute a seizure if the suspect submits to such a show of authority by halting, no seizure
occurs when the suspect responds by fleeing; in the latter case, the suspect’s liberty and
freedom of movement have not been restrained. Hodari D., 499 U.S. 621. In short, the fourth
amendment is not implicated by attempted seizures.
¶ 14 The same seizure requirements apply to traffic stops. The police articulate a show of
authority by activating their cruiser’s emergency lights and/or siren. A seizure of the driver
does not occur until the driver submits to the show of authority by stopping her vehicle.
Brendlin, 551 U.S. 249; Brower v. County of Inyo, 489 U.S. 593 (1989); People v. Brodack,
296 Ill. App. 3d 71 (1998). A passenger, on the other hand, submits to the show of authority
by remaining in the vehicle. As the Supreme Court explained in Brendlin:
“[W]hat may amount to submission depends on what a person was doing before the show
of authority: a fleeing man is not seized until he is physically over-powered, but one
sitting in a chair may submit to authority by not getting up to run away. Here, Brendlin
had no effective way to signal submission while the car was still moving on the roadway,
but once it came to a stop he could, and apparently did, submit by staying inside.”
Brendlin, 551 U.S. at 262.
¶ 15 Unlike the defendant in Brendlin, defendant here did not submit to the officers’ show of
authority by remaining in the vehicle; instead he chose to flee. As a result, defendant was not
seized during the traffic stop.
¶ 16 The officers’ eventual arrest of defendant was supported by probable cause. Defendant’s
unprovoked flight from the traffic stop raised the officers’ suspicion and justified their
pursuit of defendant. See People v. Thomas, 198 Ill. 2d 103 (2001). Defendant’s flight and
discharge of a firearm established probable cause for defendant’s arrest. Therefore,
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defendant’s eventual seizure and arrest were reasonable under the fourth amendment.
¶ 17 Because there was no unreasonable seizure, defendant’s motion to suppress would not
have been successful. Accordingly, trial counsel’s decision not to file the motion to suppress
was not deficient.
¶ 18 CONCLUSION
¶ 19 For the foregoing reasons, the judgment of the Rock Island County circuit court is
affirmed.
¶ 20 Affirmed.
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