People v. Allen

NO. 4-09-0682 Opinion Filed 5/11/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
HENRY LEE ALLEN, ) No. 08CF1194
Defendant-Appellant. )
) Honorable
) James E. Souk,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE KNECHT delivered the judgment of the
court, with opinion.
Justices Appleton and Pope concurred in the judgment
and opinion.
OPINION
In March 2009, following a bench trial, the trial court
convicted defendant, Henry Lee Allen, of unlawful possession of a
controlled substance with intent to deliver and unlawful posses-
sion of a controlled substance. In April 2009, the court sen-
tenced defendant on his possession-with-intent-to-deliver convic-
tion to 12 years' imprisonment; finding it was an included
offense, the court did not sentence defendant on his possession
conviction. Defendant appeals, arguing the court erred by (1)
denying defendant's motion to quash arrest and suppress evidence,
(2) not inquiring into defendant's pro se claims of ineffective
assistance of counsel, and (3) "sentencing" defendant to three
years' mandatory supervised release (MSR) instead of two. We
affirm.
I. BACKGROUND
In October 2008, the McLean County grand jury indicted
defendant with (1) unlawful possession of a controlled substance
with intent to deliver (720 ILCS 570/401(d)(i) (West 2008)), a
Class 2 felony, and (2) unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 2008)), a Class 4 felony.
Count I of the two-count indictment alleged defendant knowingly
and unlawfully possessed with the intent to deliver a substance
containing cocaine. Count II alleged he knowingly and unlawfully
possessed less than 15 grams of a substance containing cocaine.
The indictment indicated defendant was eligible for mandatory
Class X sentencing on count I and extended-term sentencing on
count II.
A. Defendant's Motion To Quash Arrest
and Suppress Evidence
In December 2008, defendant filed a motion to quash
arrest and suppress evidence. In January 2009, the trial court
held a hearing on defendant's motion. Defendant's evidence
consisted of the testimonies of Jason Williamson and Jason
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Tuttle.
Jason Williamson testified he was working as a police
officer with the LeRoy police department on October 17, 2008,
when he was approached on the street by Brian Fromhertz. Wil-
liamson knew Fromhertz from several prior contacts. Fromhertz
had been a suspect, a defendant, or an arrestee on several
occasions. From these prior contacts, Williamson knew Fromhertz
was a cocaine addict who, because he did not have a driver's
license, received drugs through regular deliveries. Fromhertz
had told Williamson his dealer lived in Bloomington and delivered
drugs to Fromhertz's residence in LeRoy. Williamson testified
Fromhertz's assertions his dealer was based in Bloomington had
not been confirmed through any investigation.
Fromhertz had not served as an informant before, as far
as Williamson knew, but on October 17, 2008, he expressed an
interest in setting up a sting. Fromhertz suggested he was going
to call his drug dealer and request a cocaine delivery. As
Williamson was busy making an arrest when Fromhertz approached
him, Williamson asked Fromhertz to discuss it with him later.
When Williamson arrived at the police station to continue pro-
cessing the arrest, Fromhertz was waiting for Williamson there
and repeated his suggestion. Again, Williamson told Fromhertz to
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wait so they could discuss Fromhertz's proposal later. Approxi-
mately 20 or 30 minutes later, Williamson received a phone call
from Fromhertz. Fromhertz told Williamson he had called his
dealer in Bloomington, who was on the way to LeRoy to deliver
drugs to Fromhertz. As Williamson was still processing the
arrest, Williamson called Tuttle, a McLean County sheriff's
deputy, gave him Fromhertz's phone number, and asked him to
address Fromhertz's complaint. Throughout this process, William-
son was unaware of Fromhertz's motives for seeking police inter-
vention in the drug transaction.
Later, after processing the arrest, Williamson was
present at Fromhertz's residence when defendant was arrested
there. A vehicle had been stopped for suspected involvement in
Fromhertz's drug transaction. Williamson spoke with the driver
while Tuttle spoke with defendant, who was the front-seat passen-
ger. Although he knew a search of the vehicle was conducted,
Williamson could not recall whether any contraband had been found
as a result of the search.
After placing the driver under temporary custody,
Williamson observed a search of defendant's mouth. Williamson
heard Tuttle ask defendant what was in his mouth and observed
Tuttle grab defendant to prevent him from swallowing the contents
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of his mouth and tell him "to spit it out." Williamson could not
remember Tuttle's physical contact with defendant in detail but
observed Tuttle grab defendant and defendant spit out several
Baggies of suspected crack cocaine.
On cross-examination, Williamson clarified what he had
told Tuttle during their initial phone conversation about Wil-
liamson's October 17, 2008, contact with Fromhertz. Williamson
specified he told Tuttle he knew (1) Fromhertz did not have a
driver's license and was unable to drive, (2) Fromhertz was a
habitual cocaine user, (3) Fromhertz had told LeRoy police he
received his cocaine from people in Bloomington, and (4)
Fromhertz was expecting a cocaine delivery from those people that
evening.
Tuttle testified he was a deputy with the McLean County
sheriff's department on October 17, 2008. Tuttle knew Fromhertz
from prior contacts when Fromhertz lived in Bloomington. Al-
though he did not know Fromhertz was a drug addict, Tuttle knew
Fromhertz associated with "those types of people."
On October 17, 2008, Tuttle had a series of phone
conversations with Williamson and Fromhertz. Initially, William-
son called Tuttle and requested him to call Fromhertz about a
possible drug transaction with some people from Bloomington.
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Williamson did not tell Tuttle Fromhertz had already arranged the
delivery. Williamson gave Tuttle Fromhertz's phone number.
Tuttle called Fromhertz. Fromhertz said he had ar-
ranged a cocaine delivery, which was in progress. He expected
the drugs to be delivered in a vehicle containing a white woman,
a white man, and a black man. He said his contact, the white
man, went by "T.J." Tuttle testified Fromhertz seemed "pretty
scared." Fromhertz told Tuttle he did not have $400 to pay for
the drugs being delivered. He expected the delivery to arrive in
approximately 15 minutes. Tuttle and another deputy left
Bloomington toward LeRoy.
When Tuttle was exiting I-74 in LeRoy, Tuttle received
a second call from Fromhertz. Fromhertz said he had just talked
to T.J., who said he was exiting I-74 in LeRoy. Tuttle could
observe there were only three vehicles exiting I-74 in LeRoy at
that time: his car, the other deputy's car, and a third car
behind theirs. Tuttle and the other deputy exited toward
Fromhertz's residence and pulled into a gas station to allow the
third car to pass. When it passed, Tuttle observed there were
three people in the car. He identified the driver was a white
woman and the front-seat passenger was a black man but could not
identify the race or gender of the backseat passenger. Tuttle
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and the other deputy followed the car.
Tuttle called Fromhertz with a description of the
vehicle. Tuttle asked Fromhertz whether that was the vehicle
Fromhertz expected, but Fromhertz could not say based on the
car's description. Fromhertz told Tuttle if the car parked in
the lot behind Fromhertz's apartment building, then it was the
correct car. Tuttle followed the car and observed it park
"directly" behind Fromhertz's apartment. Tuttle parked his car
perpendicular to the suspect car with his lights illuminating its
passenger compartment. At that point, Tuttle was able to iden-
tify the rear passenger as a white man. Tuttle testified he was
99% certain the suspect car was the one being used to deliver
drugs to Fromhertz.
Tuttle, the other deputy, and Williamson approached the
car. They obtained the names of each person in the car. The
white man in the backseat was named Thomas J. Tillman. Tuttle
began questioning defendant, the front-seat passenger. Tuttle
asked defendant what he and the other people in the car were
doing. Defendant gestured toward Tillman and said they were
visiting one of Tillman's friends. Tuttle asked Tillman what his
friend's name was, and Tillman said his friend's name was Brian.
At that point, the officers requested the three people
- 7 -
get out of the car. Defendant was placed in restraints. Tuttle
conducted a pat-down search of defendant's person, looking for
weapons and "possibly drugs." Tuttle did not find any weapons or
drugs on defendant's person. A search of the vehicle was also
conducted, but no contraband was found.
Tuttle called Fromhertz to get an identification.
Looking from his apartment window, Fromhertz identified Tillman
as T.J., his contact. Fromhertz could not recognize either
defendant or the driver but reported he knew T.J. was an interme-
diary between drug purchasers and a black, male drug dealer.
Tuttle told Fromhertz the police could not find any drugs on the
suspects or in their car and asked him where the cocaine was
ordinarily located on their person when he bought it from them.
Fromhertz told Tuttle to check the suspects' mouths.
Tuttle approached Tillman first. He shone a flashlight
at Tillman's mouth and asked him to open his mouth and lift his
tongue. Tillman complied, and Tuttle did not observe any drugs
or anything suspicious about the way Tillman performed the test.
Tuttle next shone the flashlight at defendant and asked him to
open his mouth and lift his tongue. Defendant complied. When he
opened his mouth and stuck his tongue out, defendant kept his
upper lip tucked under his upper teeth and Tuttle suspected there
- 8 -
was an object behind his upper lip. Defendant was not giving
Tuttle a full view of what was in his mouth. Based on his
experience performing jail-intake searches, Tuttle recognized
defendant's behavior as suspicious of concealing contraband.
According to Tuttle, people undergoing this search ordinarily
open their mouths wide and expose their upper and lower teeth.
At that point, Tuttle made physical contact with
defendant to determine the nature of the object defendant was
concealing. Tuttle "pinched" defendant's upper lip with his
thumb and forefinger. From the touch, Tuttle "could tell" there
was an object there. Tuttle believed the object was contraband.
He told defendant "to spit it out." Defendant said, "[O]kay, I'm
going to give it to you." He spat out one plastic Baggie con-
taining suspected cocaine. Tuttle could tell there were more
objects concealed behind defendant's upper lip. He observed
defendant sucking in his cheeks, apparently to "work up enough
saliva to swallow" the remaining contents. Tuttle reached out
with his pinky finger in an attempt to reach in between defen-
dant's lip and gums to remove the remaining contraband. Defen-
dant jerked away. "[S]omewhat of a struggle" ensued. Eventu-
ally, several more Baggies of suspected cocaine were produced
from defendant's mouth. Tuttle estimated 15 minutes elapsed from
- 9 -
his initial contact with the suspect vehicle in Fromhertz's
parking lot to his discovery of contraband on defendant's person.
Although he did not know it when he was searching defendant,
sometime later, Tuttle learned defendant had been on MSR, or what
used to be known as parole, at the time of these events.
Following the evidence, the trial court heard the
parties' arguments on defendant's motion to quash arrest and
suppress evidence. Defendant argued Fromhertz's information was
not sufficiently reliable to provide police a reasonable,
articulable suspicion or probable cause justifying either the
initial restriction of defendant's mobility or the search of his
mouth resulting in the seizure of contraband. Further, defendant
argued the search of defendant's mouth--particularly, the use of
force and compulsion in the search--was not justified by defen-
dant's status as a parolee.
The State argued the initial investigatory stop or
detention of defendant and the vehicle he occupied were supported
by a reasonable suspicion based on Fromhertz's information.
Further, the State argued, as a parolee, defendant (1) lacked
grounds to challenge the search of his mouth and (2) enjoyed only
a limited expectation of privacy such that the search of his
mouth need be supported only by a reasonable suspicion, which
- 10 -
Tuttle acquired before conducting the search. Alternatively, the
State contended Tuttle had probable cause to search defendant's
mouth based on Fromhertz's information and Tuttle's observation.
The trial court denied defendant's motion to quash
arrest and suppress evidence. The court found the officers
initiated a Terry investigation (see Terry v. Ohio, 392 U.S. 1(1968)) when they approached the suspect vehicle and questioned
the passengers. It concluded this stop was supported by an
articulable suspicion the passengers in the car were involved in
an ongoing crime based on Fromhertz's information, which the
officers independently confirmed by observing the vehicle. With
respect to the search of defendant's person, the court concluded
defendant, as a parolee, had a reduced expectation of privacy.
Quoting People v. Wilson, 228 Ill. 2d 35, 45, 885 N.E.2d 1033,
1039 (2008), the court stated, "[T]he Fourth Amendment does not
prohibit a police officer from conducting a suspicionless search
of a parolee." Further, the court concluded whether the officer
performing the search has prior knowledge of the parolee's status
is irrelevant to the determination of whether a suspicionless
search of a parolee is justified. Based on these findings and
conclusions, the court denied defendant's motion to quash arrest
and suppress evidence.
- 11 -
B. Defendant's Pro Se Allegations of Ineffective
Assistance of Trial Counsel
Throughout the proceedings against him in this case, on
several occasions, defendant raised questions regarding the
performance of his trial counsel and his desire either to obtain
substitute counsel or to proceed pro se.
On November 21, 2008, after counsel had been appointed
for defendant, defendant filed a pro se motion to dismiss.
Defendant's motion was addressed that same day at a status
hearing. Defense counsel requested the motion be made part of
the record but declined to adopt it since he found it was un-
founded. The trial court admonished defendant determinations of
trial strategy were left to his appointed attorney. Defendant
then requested substitution of counsel, claiming a "conflict of
interest" with appointed counsel, stating, "We don't agree on
anything." The court explained defendant's disagreement with
trial counsel did not constitute a conflict of interest and
allowed a continuance for defendant to request a different
attorney through the public defender's office.
On December 3, 2008, defendant appeared before the
trial court for another status hearing. Defense counsel noted
defendant's request for a different attorney from the public
- 12 -
defender's office was denied. The court admonished defendant it
considered defendant's appointed counsel "very thorough and
efficient" and "eminently qualified" to represent defendant in
his case. The court gave defendant some time to speak with his
attorney. Later, when the court recalled defendant's case and
inquired into its status, defense counsel indicated a continuance
would possibly be beneficial. Defendant interjected, "I asked
you to file a motion to suppress evidence, brother. That's all I
asked you." The court set a new status hearing.
On December 5, 2008, a letter from defendant to his
attorney was accepted into the trial court file. The letter was
dated November 28, 2008, and was notarized on December 2, 2008.
In it, defendant requested counsel prepare a motion to suppress
and a motion for a "Bill of Particulars."
Also on December 5, 2008, a letter dated December 1,
2008, and notarized December 2, 2008, from defendant to the trial
court was filed. In this letter, defendant again requested a
substitution of his trial counsel. Defendant referred to coun-
sel's request to incorporate defendant's pro se motion to dismiss
into the record in case of an appeal as "criminal." He com-
plained counsel held the opinion a motion to dismiss or a motion
to suppress would be unfounded. He asserted the court was able
- 13 -
to "seek the replacement of any attorney whenever you witness the
accused['s] rights before the court being infringed upon." A
second copy of this letter was filed on December 9, 2008.
On December 15, 2008, defendant's pro se motion to
suppress was filed. On December 29, 2008, defendant filed a pro
se "MOTION OF INEFFECTIVE COUNSEL'S [sic]," again apparently
alleging a "conflict of interest" with his appointed counsel.
Also on December 29, 2008, defendant appeared before
the trial court for another status hearing. Defense counsel
indicated defendant requested to represent himself. Defendant
clarified he preferred to be represented by a different attorney
but, if his options were to represent himself or be represented
by his present appointed counsel, he would choose to proceed pro
se. Defendant later stated of his attorney, "[W]e just con-
stantly have a conflict of interest." When the court asked him
whether he meant he disagreed with his attorney's advice, defen-
dant replied, "The only advice he gave me is to cop out." The
court admonished defendant it was familiar with defense counsel's
work and knew him to be accomplished, experienced, and capable of
representing defendant well. Defendant stated he wished to
proceed pro se "[i]f that's the only way I can get you to grant
this motion to suppress." After defendant again stated his
- 14 -
intention to represent himself, defense counsel explained he had
prepared a motion to quash arrest and suppress evidence. He and
defendant disagreed as to the basis for a motion to suppress, but
counsel believed there were grounds to argue for suppression, and
counsel was prepared to file the motion if defendant's request to
proceed pro se were withdrawn or denied. Upon counsel's repre-
sentations, defendant agreed to withdraw his motion to represent
himself. Defendant's trial counsel thereafter filed the motion
to quash arrest and suppress evidence, the proceedings on which
are detailed above.
On March 2, 2009, after a bench trial, the trial court
found defendant guilty and set a sentencing hearing for April 17,
2009. Between his conviction and sentencing, several documents
drafted by defendant pro se were accepted into the court's file,
including a "MOTION OF RECONSIDER GUILTY VERDICK [sic and] NOTICE
OF APPEAL," letters to the circuit clerk requesting certain
documents be filed and forwarded to the trial judge and the State
and requesting copies of trial transcripts, a "MOTION FOR NEW
TRIAL," another "NOTICE OF APPEAL," another "MOTION OF RECONSIDER
GUILTY VERDICK [sic]," and two letters from defendant to the
court, identical copies of one of which were filed March 13,
March 17, and March 20, 2009.
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In one undated letter to the trial court, file stamped
March 27, 2009, and containing a notary public's seal but not her
signature, defendant raised several contentions of error involv-
ing his representation by appointed counsel. Defendant claimed
the court violated a canon of judicial conduct regarding a
defendant's right to be heard by telling defendant it "could not
accept any legal documents from [him] because [he] had a [sic]
attorney." Defendant complained the court "knew" he and his
attorney "was [sic] not seeing eye to eye through[]out the
duration of this proceeding, yet *** still refused to accept
legal document [sic] from [him] that can lawfully prove [his]
innocence." Defendant further asserted the court violated a
canon of judicial conduct requiring judges to "be faithful to the
law and maintain professional competence in it" and "be unswayed
by partisan interests, public clamor, or fear of criticism."
With respect to this alleged violation, defendant stated,
"My attorney *** did not even attempt to
defende [sic] me. You and I both know that
for if he did I'll [sic] be at home with my
wife right now instead of here pleading my
case to you. If he would of [sic] done the
paper[]work like I lawfully requested of him
- 16 -
you would of [sic] looked at them, but
becouse [sic] he did not you would not even
look at the facts and evidence of this case."
Defendant also claimed the court violated a canon requiring a
judge with knowledge of a violation of the judicial canons or the
rules of lawyer ethics to initiate disciplinary matters. Defen-
dant claimed his attorney "was not trying to do anything for
[him] and this is irrefutable of [sic] the record." "You just
continue to be bias [sic] toward me," defendant wrote the court,
"by ignore [sic] me and saying [defense counsel] is a good
attorney."
On April 17, 2009, the trial court held a sentencing
hearing. The court noted defendant's pro se filings. The court
stated it had reviewed the filings "simply to see what they were"
but had not "read through all of them." The court asked defense
counsel whether he planned to adopt any of them. Defense counsel
requested the documents titled as notices of appeal or motions
for reconsideration of the verdict be ignored. Counsel adopted
defendant's March 17, 2009, "MOTION FOR NEW TRIAL" and the
accompanying copy of defendant's letter to the court filed that
same day, which counsel believed presented an independent basis
for a new trial. After arguments based on these adopted pro se
- 17 -
filings requesting a new trial, the court denied defendant's
motion, noting it had considered all of the arguments contained
in the documents, some of which counsel had not specifically
addressed. The court proceeded to sentencing.
On April 21, 2009, defendant's attorney filed a motion
to reconsider sentence, asserting the sentence was excessive. On
August 7, 2009, the trial court held a hearing on defendant's
motion. Following arguments, the court denied defendant's motion
and admonished defendant of his appellate rights. On defendant's
behalf, the court ordered a notice of appeal be prepared and
appointed the office of the State Appellate Defender (OSAD) as
counsel on appeal. When the court asked defendant whether he had
any questions about the appellate process, defendant requested a
continuance of posttrial procedures and asked the court to
dismiss his attorney and appoint new counsel "to prepare [his]
post-trial motions and raise issues for the Appellate Court."
The court clarified OSAD would be defendant's attorney for the
remainder of proceedings and would advise him going forward.
C. Trial and Sentencing
On February 6 and March 2, 2009, defendant was tried in
a two-day bench trial. The evidence consisted of testimony by
Williamson, LeRoy police officer Nathan Wilkins, McLean County
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sheriff's department detective Tim Tyler, forensic scientist Joni
Little, McLean County sheriff's deputy Joe Reidy, Tillman,
Fromhertz, and Tuttle. Defendant elected not to testify and did
not present any evidence on his behalf. Following evidence and
arguments, the trial court found defendant guilty of both counts
charged in the indictment, unlawful possession of a controlled
substance with intent to deliver and unlawful possession of a
controlled substance.
On April 17, 2009, the trial court sentenced defendant.
A presentence investigation report was admitted as evidence.
Four letters were admitted as evidence at defendant's behest.
The court considered the evidence and the parties' recommenda-
tions. It noted defendant was eligible for mandatory Class X
sentencing on his possession-with-intent-to-deliver conviction.
It found the possession conviction was for a lesser included
offense and, as such, did not warrant sentencing. It sentenced
defendant to 12 years' imprisonment. On its written sentencing
judgment, the court indicated defendant would be required to
serve three years of MSR following his prison term.
On August 7, 2009, following a hearing, the trial court
denied defendant's motion to reconsider sentence.
This appeal followed.
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II. ANALYSIS
Defendant raises three issues on appeal: (1) whether
the trial court erred by denying defendant's motion to quash
arrest and suppress evidence, (2) whether the court erred by
failing to inquire into defendant's posttrial pro se claims of
ineffective assistance of counsel, and (3) whether the court
erred by "sentencing" defendant to three years' MSR instead of
two. We consider each argument in turn.
A. Suppression of Evidence
First, defendant contends the trial court erred by
denying his motion to quash arrest and suppress evidence.
Specifically, defendant argues the initial detention and investi-
gation of defendant were not supported by a reasonable,
articulable suspicion and the search of defendant's person was
not supported by probable cause. Further, defendant argues the
search was not justified by defendant's status as parolee as the
officer performing the search did not know defendant was on MSR
at the time of the search. The State responds the initial
detention was justified because Fromhertz's information gave
officers a reasonable, articulable suspicion defendant was
involved in an ongoing crime. Further, the State maintains
defendant, as a parolee, enjoyed a lower expectation of privacy
- 20 -
such that only a reasonable suspicion was needed to justify the
search of defendant's person. Alternatively, the State contends
the seizure of contraband was made pursuant to a lawful search
incident to arrest which, in turn, was supported by probable
cause based on Fromhertz's verified information. We conclude the
search in which the evidence defendant seeks to suppress was
seized was permissible.
1. The Fourth Amendment and Terry
The fourth amendment to the United States Constitution
provides, "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated***." U.S. Const., amend. IV; see
also Ill. Const. 1970, art. I, §6 ("The people shall have the
right to be secure in their persons, houses, papers and other
possessions against unreasonable searches[ and] seizures***.").
This amendment applies to the states through the due-process
clause of the fourteenth amendment. Wilson, 228 Ill. 2d at 40,
885 N.E.2d at 1037. The fourth-amendment right exists "wherever
an individual may harbor a reasonable 'expectation of privacy'
[citation]." Terry, 392 U.S. at 9. The fourth amendment applies
to all seizures of a person, even those involving only a brief
detention. People v. Thomas, 198 Ill. 2d 103, 108, 759 N.E.2d
- 21 -
899, 902 (2001).
The specific incidents of the fourth amendment "must be
shaped by the context in which it is asserted. For what the
Constitution forbids is not all searches and seizures, but
unreasonable searches and seizures." (Internal quotation marks
omitted.) Terry, 392 U.S. at 9. "Reasonableness under the
fourth amendment generally requires a warrant supported by
probable cause." Thomas, 198 Ill. 2d at 108, 759 N.E.2d at 902.
In Terry, however, the United States Supreme Court recognized an
exception to the warrant requirement for brief investigatory
detentions in certain circumstances. Id. at 108-09, 759 N.E.2d
at 902. Under Terry, "a police officer may briefly stop a person
for temporary questioning if the officer reasonably believes that
the person has committed, or is about to commit, a crime." Id.
at 109, 759 N.E.2d at 902. Determining whether such a stop is
reasonable under the fourth amendment involves a dual inquiry; a
court must assess "whether the officer's action was justified at
its inception, and whether it was reasonably related in scope to
the circumstances which justified the interference in the first
place." Terry, 392 U.S. at 19-20.
2. Initial Detention
In this case, the parties initially dispute whether
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Fromhertz's information provided a sufficient basis for the
police to detain defendant. We agree with the State the initial
contact between law-enforcement authorities and defendant did not
constitute an unreasonable seizure.
First, we must consider whether and when defendant was
seized within the meaning of the fourth amendment "[f]or if there
was no seizure, then the fourth amendment was not implicated at
that point." Thomas, 198 Ill. 2d at 111, 759 N.E.2d at 903.
Both parties assert defendant was seized when police officers
approached the vehicle defendant occupied and began questioning
defendant and the driver. We agree. "A seizure occurs when, by
physical force or a show of authority, a police officer limits a
citizen's liberty. [Citation.] More plainly, a police officer
'seizes' a person when he or she accosts that person and denies
that person the freedom to walk away." People v. Leggions, 382
Ill. App. 3d 1129, 1132, 890 N.E.2d 700, 704 (2008). Here, a
reasonable person in defendant's position would have felt he
lacked the freedom to discontinue contact with the police when
two squad cars blocked the vehicle in which defendant sat and two
officers positioned themselves on either side of the car and
engaged the passengers in an investigatory conversation. This
encounter was akin to a traffic stop, which constitutes a seizure
- 23 -
for fourth-amendment purposes. People v. Bunch, 207 Ill. 2d 7,
13-14, 796 N.E.2d 1024, 1029 (2003).
Next, we must determine whether this seizure was
reasonable. Under Terry, a brief investigatory detention is
justified at its inception if the police officer effecting the
stop can "point to specific and articulable facts which, taken
together with rational inferences therefrom, reasonably warrant
that intrusion." Thomas, 198 Ill. 2d at 109, 759 N.E.2d at 902.
The Supreme Court of Illinois has provided further guidance about
Terry stops, as follows:
"We have previously held that a totality-of-
circumstances approach will achieve a fairer
balance between public and private interests.
[Citation.] The central issue is *** whether
the information, taken in its totality, and
interpreted not by technical legal rules but
by factual and practical commonsense consid-
erations, would lead a reasonable and prudent
person to believe that the person stopped had
committed an offense." (Internal quotation
marks omitted.) People v. Ledesma, 206 Ill.
2d 571, 583, 795 N.E.2d 253, 262 (2003),
- 24 -
overruled on other grounds by People v.
Pitman, 211 Ill. 2d 502, 813 N.E.2d 93(2004).
Further, the supreme court has stated:
"Viewed as a whole, the situation confronting
the police officer must be so far from the
ordinary that any competent officer would be
expected to act quickly. The facts support-
ing the officer's suspicions need not meet
probable cause requirements, but they must
justify more than a mere hunch. The facts
should not be viewed with analytical hind-
sight, but instead should be considered from
the perspective of a reasonable officer at
the time that the situation confronted him or
her." Thomas, 198 Ill. 2d at 110, 759 N.E.2d
at 903.
"In evaluating whether reasonable suspicion exists, a court
should objectively consider whether the information known to the
officer at the time of the stop would warrant a person of reason-
able caution to believe a stop was necessary to investigate the
possibility of criminal activity." (Internal quotation marks
- 25 -
omitted.) People v. Shafer, 372 Ill. App. 3d 1044, 1048-49, 868
N.E.2d 359, 362 (2007).
Here, the parties dispute whether the information
provided by Fromhertz gave rise to reasonable suspicion justify-
ing a Terry stop. In evaluating whether a stop is warranted, a
court "should consider the quality and content of information
known to officers as well as the reliability of the source of the
information." (Internal quotation marks omitted.) Id. at 1049,
868 N.E.2d at 362. Information provided to police by a third-
party informant may give rise to reasonable suspicion "if the
information is reliable and allows an officer to reasonably infer
that a person was involved in criminal activity." (Internal
quotation marks omitted.) Id. at 1049, 868 N.E.2d at 362-63.
"In determining whether an informant's statements provide suffi-
cient basis for a Terry stop, a reviewing court should consider
the informant's veracity, reliability, and basis of knowledge."
People v. Sparks, 315 Ill. App. 3d 786, 792, 734 N.E.2d 216, 221
(2000).
Not all informants' tips merit the same treatment as
"tips may vary greatly in their value and reliability and *** one
simple rule will not cover every situation." In re J.J., 183
Ill. App. 3d 381, 385, 539 N.E.2d 764, 766 (1989); see also id.- 26 -
at 385-86, 539 N.E.2d at 766 ("Where some tips, completely
lacking in indicia of reliability, would warrant either no police
response or require further investigation before a stop would be
justified, other situations, such as when a victim of a crime
seeks immediate police aid and describes his assailant or when a
credible informant warns of a specific impending crime, would
justify the police making an appropriate response.").
Courts in Illinois have noted various indicia of
reliability for evaluating informants' tips although, due to the
commonsense nature of the inquiry, no list of such indicia can be
exhaustive. "[C]ourts may give greater weight to information
provided by an eyewitness or victim of a crime than they would to
information provided by persons who do not fall into those
categories." Shafer, 372 Ill. App. 3d at 1049, 868 N.E.2d at
363; see also id. ("a strong inference that a person is a direct
witness to the offense is more indicative of reliability than a
weak inference that the tipster had a source of inside informa-
tion"). Information is more credible if the informant implicates
himself in the criminal activity he is reporting. Sparks, 315
Ill. App. 3d at 794, 734 N.E.2d at 223. Information from an
informant whose identity is known to police and who is available
for cross-examination is generally more credible than an anony-
- 27 -
mous tip or one from a confidential source. See Shafer, 372 Ill.
App. 3d at 1050, 868 N.E.2d at 364 (discussing the enhanced
reliability of tips made to police emergency numbers, which "are
not truly anonymous even when [the callers] fail to identify
themselves by name" (internal quotation marks omitted)); id. at
1050-51, 868 N.E.2d at 364 (noting criminal liability for making
false reports to police "lends reliability to" information
obtained from identifiable informants (internal quotation marks
omitted) (quoting Florida v. J.L., 529 U.S. 266, 276 (2000)
(Kennedy, J., concurring joined by Rehnquist, CJ.))); cf. Sparks,
315 Ill. App. 3d at 795, 734 N.E.2d at 223 (finding officers'
knowledge of a confidential informant's identity was not an
indicum of reliability as the informant's identity was not made
known to the defendant and the informant would not be subjected
to cross-examination). A tip providing predictive information
and readily observable details will be deemed more reliable if
these are confirmed or corroborated by the police. See, e.g.,
Alabama v. White, 496 U.S. 325, 331-32 (1990) (finding signifi-
cant aspects of the informant's story, especially those predict-
ing the defendant's future behavior, were sufficiently corrobo-
rated by the police to furnish reasonable suspicion); cf. J.L.,
529 U.S. at 271 ("The anonymous call *** provided no predictive
- 28 -
information and therefore left the police without means to test
the informant's knowledge or credibility.").
Under the totality of the circumstances of this case,
Fromhertz's tip and the investigatory steps taken by police were
sufficient to justify defendant's detention in its inception.
Police obtained a reasonable suspicion of defendant's involvement
in an ongoing crime from several particularly relevant circum-
stances. First, Williamson and Tuttle knew Fromhertz from prior
contacts. Although he had not served as an informant and his
veracity had not been tested in such a context before,
Fromhertz's veracity could be at least minimally measured insofar
as the information provided in this case was consistent with
information he had told Williamson in the past and information
known by Williamson and Tuttle based on their own observations.
Williamson was aware of Fromhertz's cocaine addiction prior to
October 17, 2008, and Fromhertz had told him he obtained drugs
from people in Bloomington. Tuttle knew Fromhertz used to live
in Bloomington. Thus, Tuttle and Williamson could verify
Fromhertz's report he was buying drugs from a person traveling
from Bloomington was consistent with what they already knew about
him. Although Fromhertz's earlier statement his cocaine dealer
was based in Bloomington had not been independently investigated
- 29 -
or confirmed, the consistency of his statements gave Williamson
and Tuttle some indication of his veracity as an informant. Cf.
Sparks, 315 Ill. App. 3d at 794, 734 N.E.2d at 223 (concluding,
since the informant had not been used as such before, the police
officer effecting the Terry stop "could not accurately judge the
informant's veracity").
Second, Fromhertz's identity was known to Williamson
and Tuttle and was never concealed from defendant. This case is
therefore distinguishable from cases involving anonymous tips and
confidential sources, where greater indicia of reliability are
required for a tip to supply reasonable suspicion. Indeed,
Williamson and Tuttle identified Fromhertz as the source of their
information at the suppression hearing and, later, Fromhertz
testified at defendant's trial and defendant cross-examined him.
Third, Fromhertz identified the basis of his informa-
tion in his initial contacts with Williamson, stating he himself
was going to be involved in a drug transaction. The identifica-
tion of the basis of information is significant in itself.
Further, Fromhertz's implication of himself in the crime he was
reporting lends reliability to his information.
Fourth, the remarkable circumstances of Fromhertz's tip
demanded immediate police involvement. The crime Fromhertz
- 30 -
reported was expected to occur within approximately 15 minutes of
his initial contact with Tuttle, who was approximately 15 minutes
away from the site of the drug transaction. Further, Fromhertz
was potentially in personal danger if Tuttle was unable to
intervene; Fromhertz sounded noticeably afraid when they spoke,
and a violent confrontation was possible if his dealer became
aware Fromhertz did not intend to pay for the drugs and had
sought intervention by the police. Needless to say, Fromhertz's
proposed sting created a unique situation "so far from the
ordinary that any competent officer would be expected to act
quickly." Thomas, 198 Ill. 2d at 110, 759 N.E.2d at 903.
Fifth, Fromhertz provided Williamson and Tuttle with
detailed predictive information, which they confirmed before
detaining defendant and which indicated his possession of inside
information. This predictive information included the race,
gender, and number of occupants of a car traveling from
Bloomington in the direction of LeRoy at a specific approximate
time, the precise location of the car at the I-74 exit at a
specific time, and the car's destination in the parking lot at
Fromhertz's apartment building. All of these details were
confirmed by police before they initiated the Terry stop.
Tuttle's identification of the suspect vehicle immediately after
- 31 -
Fromhertz reported its location based on a phone conversation
with one of its occupants is particularly indicative of the
reliability of Fromhertz's information. Through these
corroborated predictive details, Fromhertz demonstrated he had
inside information about the criminal activity he was reporting.
Under these circumstances, defendant's detention was
supported by a reasonable suspicion of his involvement in an
ongoing crime.
3. Scope of Investigation & Probable Cause
Defendant argues, even if defendant's seizure was
reasonable in its inception, the search resulting in the
discovery of contraband exceeded the scope of any permissible
investigation under Terry. As the officers who effected the
Terry stop obtained probable cause to arrest defendant during the
permissible course of their investigation, we conclude the search
of defendant's mouth was permissible.
The second inquiry under Terry is whether the police
activity in question "was reasonably related in scope to the
circumstances which justified the interference in the first
place." Terry, 392 U.S. at 19-20. This requires us to consider
"the length of the detention and the manner in which it was
carried out." (Emphases omitted.) Bunch, 207 Ill. 2d at 14, 796
- 32 -
N.E.2d at 1029. "[A]n investigative detention must be temporary
and last no longer than is necessary to effectuate the purpose of
the stop, and the investigative methods employed should be the
least intrusive means reasonably available to verify or dispel
the officer's suspicion in a short period of time." (Internal
quotation marks omitted.) Id. Generally, while a pat-down
search or frisk of the detainee to detect concealed weapons is
permissible where an officer has reason to believe the detainee
is armed and dangerous, a search for evidence during a Terry stop
violates the fourth amendment. People v. Galvin, 127 Ill. 2d
153, 170, 535 N.E.2d 837, 845 (1989).
Defendant contends the search of his mouth exceeded the
limited scope of a Terry stop. The State responds the officers
obtained probable cause to arrest defendant during the course of
their investigation and the subsequent search was a permissible
search incident to arrest. As we conclude the search of
defendant's mouth was an allowable search incident to an arrest
which was, in turn, supported by probable cause developed within
the permissible scope of the Terry stop, we need not consider
defendant's argument the search was impermissible under a Terry
analysis.
"In order to make a valid, warrantless arrest, a police
- 33 -
officer must have probable cause to arrest." People v. Love, 199
Ill. 2d 269, 278, 769 N.E.2d 10, 16 (2002). "Probable cause
exists for an arrest when the totality of the facts and
circumstances known to the officers is such that a reasonably
prudent person would believe that the suspect is committing or
has committed a crime." In re D.W., 341 Ill. App. 3d 517, 523,
793 N.E.2d 46, 51 (2003). Though a higher standard than
reasonable suspicion (Leggions, 382 Ill. App. 3d at 1133, 890
N.E.2d at 705), probable cause does not require evidence
sufficient to convict (People v. Foster, 119 Ill. 2d 69, 83, 518
N.E.2d 82, 87 (1987)). As with reasonable suspicion, whether
probable cause to arrest exists is a practical, commonsense
determination. As the supreme court observed in People v.
Cabrera, 116 Ill. 2d 474, 485, 508 N.E.2d 708, 712 (1987):
"The courts, in striking a balance between
the need to protect citizens from invasions
of their privacy at the whim of police
officers and the countervailing need to allow
leeway for efficient enforcement of the laws,
are sensitive to the fact that policemen must
often make their decisions to arrest or not
to arrest under ambiguous circumstances and
- 34 -
must exercise their judgment, at the risk of
making a mistake. In dealing with probable
cause, *** as the very name implies, we deal
with probabilities. These are not technical;
they are factual and practical considerations
of everyday life on which reasonable and
prudent men, not legal technicians, act."
(Internal quotation marks omitted.)
Like reasonable suspicion in the Terry context,
probable cause can be established as the result of an informant's
tip and verification of the tip by police. D.W., 341 Ill. App.
3d at 523, 793 N.E.2d at 51. The considerations for evaluating
an informant's tip in the context of probable cause are the same
as in the context of reasonable suspicion. See id. ("The
informant's veracity, reliability and basis of knowledge are
determinative. [Citation.] One indicium of reliability of
information exists when the facts learned through police
investigation independently verify a substantial part of the
informant's tip.").
In this case, the totality of the circumstances
indicates officers developed probable cause to arrest defendant
during the course of their Terry investigation. The scope of the
- 35 -
investigation in this case expanded naturally and reasonably in
response to the information the officers lawfully obtained. When
they initiated defendant's detention, Tuttle and Williamson
obtained the identities of the occupants in the suspect vehicle,
verifying the backseat passenger's initials, race, and sex were
those of Fromhertz's contact, T.J. When questioned, defendant
indicated the occupants' purpose at the apartment building where
they stopped was to visit Tillman's friend. Tillman subsequently
verified the first name of the friend they were visiting was
Brian, Fromhertz's first name. At that point, the officers
ordered the occupants to exit the vehicle and defendant was
placed in hand restraints. Both these steps are permissible as a
matter of course during a Terry stop of a vehicle. See Leggions,
382 Ill. App. 3d at 1133, 890 N.E.2d at 705 (finding the police
may, as a matter of course, order the occupants out of a vehicle
once it is lawfully stopped and the nature of the investigatory
stop is not affected merely by virtue of an officer's using
handcuffs). Further, by the time Tuttle conducted the search of
defendant's mouth, Fromhertz had positively identified Tillman as
his drug contact, clarified Tillman's role as an intermediary in
their drug transactions between himself and a black, male drug
dealer, and indicated he regularly observed drug dealers conceal
- 36 -
drugs in their mouths. The latter information helped explain why
the preceding searches had not resulted in detection of the drugs
being delivered.
At least following Tuttle's final conversation with
Fromhertz, which occurred less than 15 minutes after police
initiated contact with defendant, considering the totality of the
circumstances, a reasonable person in Tuttle's position would
have been justified in the belief defendant was probably
committing a crime. As the investigation was reasonable in both
duration and scope of inquiry, we hold the officers developed
probable cause to arrest defendant in the permissible course of
the Terry stop. Accordingly, we hold the search of defendant's
mouth resulting in the seizure of the evidence defendant sought
to suppress was a valid search incident to his arrest. See
People v. Bailey, 159 Ill. 2d 498, 503, 639 N.E.2d 1278, 1280
(1994) ("It is reasonable for police to search the arrestee ***
for evidence that the arrestee could conceal or destroy."). As
we conclude the search and seizure were valid under traditional
fourth-amendment principles, we need not consider the effects of
defendant's status as a parolee on the suppression of evidence.
B. Defendant's Posttrial Allegations of
Ineffective Assistance of Counsel
- 37 -
Next, defendant argues the trial court erred by not
inquiring into defendant's posttrial pro se complaints of
ineffective assistance of trial counsel. Specifically, defendant
claims he was entitled to some inquiry by the court into the
allegations contained in the undated letter filed on March 27,
2009. Defendant argues the court's failure in this regard
violated People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045(1984), and its progeny. We disagree.
In Krankel, 102 Ill. 2d at 187-88, 464 N.E.2d at 1048,
the defendant filed a posttrial pro se motion for a new trial
alleging ineffective assistance of trial counsel, and the trial
court denied his request for new counsel to assist him in arguing
his motion. The supreme court, on the recommendation of both
parties on appeal, remanded the case for a new hearing on the
motion, at which the defendant was entitled to new counsel. Id.
at 189, 464 N.E.2d at 1049; see also People v. Moore, 207 Ill. 2d
68, 77-79, 797 N.E.2d 631, 637-38 (2003) (discussing and applying
Krankel and the rules derived therefrom).
New counsel is not automatically required when a
defendant files a pro se posttrial motion alleging ineffective
assistance of counsel; rather, "the operative concern for the
reviewing court is whether the trial court conducted an adequate
- 38 -
inquiry into the pro se defendant's allegations of ineffective
assistance of counsel." People v. Johnson, 159 Ill. 2d 97, 125,
636 N.E.2d 485, 497 (1994). "A court can conduct such an inquiry
in one or more of the following three ways: (1) questioning the
trial counsel, (2) questioning the defendant, and (3) relying on
its own knowledge of the trial counsel's performance in the
trial." People v. Peacock, 359 Ill. App. 3d 326, 339, 833 N.E.2d
396, 407 (2005). Where the claim lacks merit or pertains to
matters of trial strategy, new counsel need not be appointed.
People v. Crane, 145 Ill. 2d 520, 533, 585 N.E.2d 99, 105 (1991).
Further, a defendant who fails to bring such a claim to the trial
court's attention forfeits it notwithstanding having presented it
in a letter to the court. See People v. Lewis, 165 Ill. App. 3d
97, 109, 518 N.E.2d 741, 749 (1988) ("It would also appear[] ***
that the trial judge, defendant's counsel, and the State were all
unaware of defendant's letter as no mention was made of it, and
defendant did not himself refer to it ***. [Citation.] Thus,
defendant did not pursue the matter contained in his letter and[]
*** waived any issue in this regard on appeal.").
Here, as in Lewis, defendant failed to raise his March
27, 2009, claims of ineffective assistance of trial counsel
before the trial court in subsequent appearances--namely, his
- 39 -
April 17, 2009, sentencing hearing and the August 7, 2009,
hearing on his motion to reconsider sentence--despite being
present with defense counsel. Defendant thereby forfeited these
claims. See id. ("While the trial judge may, in some instances,
have a responsibility to act on letters mailed by a defendant to
the court, here, defendant subsequently appeared in court with
counsel and could have properly presented any matter to the
court.").
Moreover, were we to consider defendant's argument, we
would find it unpersuasive. Defendant's letter filed on March
27, 2009, raised two complaints with trial counsel's performance.
First, defendant complains he and his attorney did not "see eye
to eye," apparently referring to defendant's earlier complaints
regarding counsel's decision not to file a motion to dismiss or a
motion for a "Bill of Particulars." However, this alone would
not support an ineffective-assistance claim as matters of trial
strategy are left to counsel. See Crane, 145 Ill. 2d at 533, 585
N.E.2d at 105 (holding no Krankel hearing is required when a
defendant's underlying claim is related to a matter of trial
tactics). Further, defendant repeatedly complained of
disagreements between himself and his attorney. By the time
defendant raised this issue in his posttrial letter, the court
- 40 -
observed defendant's concerns were addressed when (1) the court
granted defendant a continuance to allow him to apply for new
counsel through the public defender's office and (2) defense
counsel filed a motion to suppress as requested by defendant.
The court's own knowledge of these complaints and the attempts by
itself and defense counsel to resolve them would have satisfied
any inquiry into this claim which may have been required by
defendant's letter.
Second, defendant alleges a complete failure on
counsel's part to present a defense. This is clearly refuted by
the record on appeal, which shows defense counsel demonstrated
competence and diligence in, among other things, (1) preparing
and arguing pretrial and posttrial motions, (2) preserving
objections and arguments for appeal, (3) presenting opening and
closing arguments, (4) cross-examining the State's witnesses, and
(5) reasonably accommodating defendant's preference for obtaining
substitute counsel. Thus, the trial court's observation of
counsel's performance throughout the proceedings would have
satisfied any inquiry into this claim which may have been
required by defendant's posttrial letter to the court.
C. Class X Sentencing for Lesser Felonies and MSR
Finally, defendant argues the trial court erred by
- 41 -
"sentencing" him to the three-year MSR term provided for a Class
X offense (see 730 ILCS 5/5-8-1(d)(1) (West 2008)).
Specifically, defendant maintains he should instead be required
to serve the two-year MSR term for Class 2 felonies (see 730 ILCS
5/5-8-1(d)(2) (West 2008)) despite receiving a Class X sentence
as a recidivist. Defendant argues this result is required by a
plain reading of the MSR statute (730 ILCS 5/5-8-1(d) (West
2008)) or, alternatively, by the doctrine of lenity. This court
has rejected these arguments in People v. Smart, 311 Ill. App. 3d
415, 418, 723 N.E.2d 1246, 1248 (2000), and People v. Lee, 397
Ill. App. 3d 1067, 1069-72, 926 N.E.2d 402, 404-06 (2010),
respectively. We decline defendant's invitation to revisit this
court's holdings in Smart and Lee. Accordingly, we hold the
court did not err by imposing the MSR term provided for a Class X
offense when it sentenced defendant as a Class X offender.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment as costs of this appeal.
Affirmed.
- 42 -