People v. Kornegay

Illinois Official Reports
Appellate Court
People v. Kornegay, 2014 IL App (1st) 122573Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption SIDNEY KORNEGAY, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-12-2573
Filed May 23, 2014
Held In a prosecution for unlawful use of a weapon by a felon and two
(Note: This syllabus counts of unlawful possession of heroin where the two possession
constitutes no part of the counts were merged under the one-act, one-crime doctrine and then
opinion of the court but the trial court sua sponte merged the remaining possession count with
has been prepared by the defendant’s conviction for the weapon offense, the appellate court
Reporter of Decisions rejected defendant’s contention that his counsel was ineffective in
for the convenience of failing to move to quash the search warrant and suppress evidence,
the reader.) affirmed the conviction for unlawful use of a weapon by a felon,
reinstated the conviction for unlawful possession of heroin, sentenced
defendant to three years’ imprisonment to be served concurrently with
the five-year sentence for possession of heroin, and adjusted the fines,
fees and costs imposed to correct various errors.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-19251; the
Review Hon. Michael Brown, Judge, presiding.
Judgment Affirmed as modified; fines, fees and costs order corrected.
Counsel on Michael J. Pelletier and Bryon M. Reina, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Veronica Calderon Malavia, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE TAYLOR delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice Palmer concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Sidney Kornegay, was found guilty of unlawful use of a weapon by a felon
and two counts of simple possession of heroin, which were merged under the one-act,
one-crime doctrine. On appeal, defendant contends his counsel was ineffective for failing to
file a motion to quash the search warrant and suppress evidence. Defendant also challenges
fees he was assessed and contends he should receive a $5-per-day credit against his fines. We
affirm the judgment and correct the fines, fees and costs order.
¶2 BACKGROUND
¶3 Defendant was arrested on November 4, 2011, after the police executed a search warrant
for the basement apartment at 1254 North Lockwood Avenue, which was the residence of
defendant and his girlfriend, Catoya Robinson. The police recovered a firearm and two
straws, each containing a small bag of heroin. The State charged defendant with one count of
unlawful use of a weapon by a felon in violation of section 24-1.1(a) of the Criminal Code of
1961 (720 ILCS 5/24-1.1(a) (West 2010)), count I, and two counts of possession of less than
one gram of a controlled substance with the intent to deliver, in violation of section 401(d) of
the Criminal Code of 1961 (720 ILCS 570/401(d) (West 2010)), counts II and III.
¶4 Prior to the search, on November 4, 2011, Chicago police officer Lazaro Altamirano and
J Doe, a private citizen, appeared before the circuit court of Cook County and subscribed and
swore to a complaint for a search warrant, seeking to search defendant and his residence. In
the complaint, Officer Altamirano averred:
“I, P.O. Lazaro Altamirano #2722, have been an officer for the City of Chicago
for the past 8 years and am currently assigned to the Narcotics Section of the
Organized Crime Division. I have made hundreds of arrests for narcotics related
violations, many that have led to felony convictions. On 03 November 2011, I had a
conversation with a citizen that I will now refer to as J Doe concerning narcotics sales
going on at the location of 1254 N. Lockwood, Chicago, IL., Cook County. I have not
included each and every fact known to me concerning this investigation. I have only
included the facts that I believe are necessary to establish probable cause.
J Doe related to me that within the last 48 hours J Doe went to the basement
located at 1254 N. Lockwood to purchase ten bags of cannabis from a male black J
Doe knows as ‘Sidney’. J Doe arrived at 1254 N. Lockwood and entered the front
common door of 1254 N. Lockwood. J Doe approached the door leading to the
basement residence and knocked on that door. After a short time the door opened and
‘Sidney’ asked J Doe what J Doe wanted. J Doe stated to ‘Sidney’ that J Doe wanted
to pick up ten bags of ‘dro’. ‘Dro’ being known to J Doe and I as street terminology
for packaged cannabis for sale. ‘Sidney’ then told J Doe to wait by the door and after
a short while ‘Sidney’ returned holding a clear plastic bag that contained large
amounts of Ziploc bags each containing suspect cannabis. ‘Sidney’ then tendered J
Doe ten Ziploc bags each containing suspect cannabis and in exchange J Doe
tendered ‘Sidney’ $100.00 United State currency. J Doe related to me that as J Doe
left the residence J Doe observed ‘Sidney’ to still be in possession of that plastic bag
and there was still a large number of Ziploc bags each of which contained suspect
cannabis. J Doe related to me that those Ziploc bags were identical to the ten ‘Sidney’
tendered to J Doe. After the above transaction with J Doe, ‘Sidney’ then re-entered
1254 N. Lockwood.
J Doe related to me that J Doe relocated to an undisclosed location where J Doe
smoked some of the ‘dro’ that J Doe purchased from ‘Sidney’. J Doe stated to me that
J Doe received the same euphoric sensation from smoking that ‘dro’ as J Doe has
from smoking ‘dro’ on previous occasions. J Doe related to me that J Doe has
purchased cannabis from ‘Sidney’ on a regular basis for the last month and that
‘Sidney’ has never denied J Doe cannabis. J Doe related to me that J Doe has been
smoking cannabis for the last three years.
J Doe was taken past 1254 N. Lockwood, where J Doe identified that as the
residence where J Doe met with ‘Sidney’ and purchased ten bags of cannabis from
within the last 48 hours and on previous occasions. J Doe then pointed at the windows
located in front of the basement apartment and stated that this is where ‘Sidney’ lives.
A picture was retrieved utilizing Chicago CLEAR data base system of a male black
named KORNEGAY, Sidney I.R. #1714551. KORNEGAY, Sidney is currently
paroled to the basement apartment of 1254 N. Lockwood. That picture was shown to
J Doe and J Doe then positively identified KORNEGAY, Sidney as the male black
that sold J Doe ten bags of cannabis within the last 48 hours. Based upon this
information, this officer respectfully requests that a search warrant be issued for
KORNEGAY, Sidney, a male black, D.O.B. 17 Dec. 1983, 5’06”, 170 Lbs., brown
eyes, I.R. #1714551, and the location of 1254 N. Lockwood, basement apartment of a
two unit apartment building, Chicago, IL., Cook County.
I Police Officer Lazaro Altamirano swear that J Doe appeared before the
undersigned judge and was available for any questions and swore to the contents of
this complaint. J Doe’s criminal history, including possible pending investigations, if
any, have been presented and made available to the undersigned judge.”
¶5 Upon the presentation of the facts in the complaint and appearance of Officer Altamirano
and J Doe, the circuit court judge found that the complaint stated facts sufficient to show
probable cause and issued a warrant to search “KORNEGAY, Sidney, a male black, D.O.B/
17 Dec 1983, 5’06”, 170 lbs, brown eyes, I.R. #1714551” and “the premises of 1254 N.
Lockwood, basement apartment of a two unit apartment building, Chicago IL., Cook
County.” The search warrant further directed the seizure of instruments, articles, and things
which had been used in the commission of, or which constitute evidence of, the offense of
unlawful possession of cannabis, including any cannabis, any documents showing residency,
any paraphernalia used in the weighting, cutting or mixing of illegal drugs, and any money or
any records detailing illegal drug transactions.
¶6 At defendant’s bench trial on July 6, 2013, the State presented one witness, Officer
Altamirano. He testified that on November 4, 2011, around 2 p.m. he was part of a team that
was executing a search warrant at 1254 North Lockwood Avenue. Officer Altamirano
entered through an open front door and proceeded to the basement apartment, where
defendant was coming up the stairs. Officer Altamairano then informed defendant that they
were executing a search warrant for the basement apartment and he was named in the search
warrant. Defendant was then handcuffed and put in a chair in the living room.
¶7 Officer Altamirano further testified that items subject to the warrant were seized. In the
kitchen, the officers found two straws each containing a Ziploc bag with suspect heroin
inside. They also found a coffee grinder in a box inside a kitchen closet which contained a
powdery substance. Officer Altamirano explained that, based on his experience, he believed
the substances to be heroin. He also found a bundle of money containing $65. Another
officer found an unloaded semiautomatic Beretta with the serial numbers defaced. Finally, he
testified he found a debit card with the name Sidney Kornegay in the bedroom and a ComEd
bill addressed to Sidney Kornegay at 1254 North Lockwood.
¶8 Officer Altamirano testified as to statements made by defendant during the execution of
the search warrant. While Officer Altamirano was in the kitchen securing the firearm in a
box, defendant, who was still sitting in the living room, stated that the gun had been left by a
friend. Once defendant and the recovered items were transported to the Homan Square police
station for processing, he was read his Miranda rights. In an interview room with Officer
Altamirano and Officer Pulaski, defendant stated that he knew he should not have the gun,
since he was a convicted felon.
¶9 During cross-examination, Officer Altamirano testified that he conducted a surveillance
of the apartment building before executing the search warrant. He saw some individuals enter
and exit the building. He did not stop these individuals and they did not have anything in
their hands that looked like narcotics.
¶ 10 The parties stipulated to the fact that a forensic scientist would testify that there were 0.4
grams of heroin in the two Ziploc bags and that the powder in the coffee grinder was also
heroin. After the State’s case in chief defendant moved for a directed verdict. The trial court
granted a directed verdict as to counts II and III with respect to the intent to deliver. The
court explained that what remained was straight possession for counts II and III.
¶ 11 Defendant presented one witness, Catoya Robinson. She testified that she was
defendant’s girlfriend and was present when the warrant was executed. She testified that they
had been living there for four months, and prior to that, Sidney’s father, also named Sidney
Kornegay, had lived there. She testified that defendant’s father was paying the light bill. She
testified that on November 4, 2011, a police officer entered the apartment, searched the
bedroom and then let in more officers through the back door. Robinson testified she did not
have a firearm in the bedroom, but one was in the laundry facility. She explained that her
apartment was in front of the basement and the laundry facility was in the back. Robinson
testified she had an unloaded handgun which she did not tell defendant about, and she
testified that an officer who was in the bedroom said he found a gun. According to Robinson,
he came out with a two-foot-long blue and green water gun. She explained that she had two
water guns in her bedroom. Robinson further testified she did not hear defendant make any
statements regarding the gun.
¶ 12 During cross-examination, Robinson testified that she and defendant lived with her two
children. She explained she had the gun because in 2008, she was stalked by a lady who
stabbed her and her boyfriend. She again said she never told defendant about the gun and had
no bullets for it. Robinson further testified that she did not know whose heroin was in the
kitchen.
¶ 13 After closing argument, the trial court found defendant guilty of unlawful use of a
weapon by a felon and two counts of simple possession of heroin. Defendant subsequently
filed a motion for a new trial, arguing that the findings of guilt on the possession of heroin
counts should be merged under the one-act, one-crime doctrine. The trial court agreed and
merged the two possession counts, vacating the finding of guilt under count III. Additionally,
the trial court sua sponte merged the remaining count of possession of heroin with the
finding of guilty on the unlawful use of a weapon by a felon count. After a sentencing
hearing on August 7, 2012, the defendant was given a five-year prison sentence for unlawful
use of a weapon by a felon. The trial court also imposed certain enumerated fines and fees
totaling $600. It is from this order that defendant now appeals.
¶ 14 ANALYSIS
¶ 15 On appeal, defendant argues that he received ineffective assistance of counsel because his
trial attorney did not file a motion to quash the search warrant and suppress evidence. He
contends that the search warrant was issued without probable cause. Defendant maintains
that the tip provided to police was not reliable enough to provide a reasonable suspicion or
probable cause to support the warrant. Thus, defendant asserts that had his counsel filed a
motion to quash the search warrant and suppress evidence, he most likely would have
succeeded on the motion and the outcome of his trial would have been different.
¶ 16 The State responds that defendant’s counsel was not ineffective because the police had
probable cause to support the issuance of the search warrant. The State further argues that
there was probable cause to search defendant’s residence based on the reliability of the tip
provided by Officer Altamirano’s informant and therefore probable cause supports the search
warrant. In the alternative, even if we find that probable cause was lacking, the State asserts
that the evidence was also properly seized under the good-faith exception to the exclusionary
doctrine. Additionally, the State maintains that the fact that the search warrant identified
defendant as a parolee constituted fourth amendment justification for the search of defendant
and his residence. The State posits that because defendant’s rights were not violated, filing a
motion to quash the search warrant and suppress evidence would have been futile and
defendant’s counsel was not ineffective for failing to do so.
¶ 17 A claim of ineffective assistance of counsel is evaluated under the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Ramsey, 239 Ill. 2d
342, 433 (2010); People v. Albanese, 104 Ill. 2d 504, 525 (1984). Under this test, a defendant
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness and a reasonable probability exists that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Ramsey, 239 Ill. 2d at 433. A
defendant’s failure to establish either prong of the Strickland test precludes a finding of
ineffective assistance of counsel. People v. Patterson, 217 Ill. 2d 407, 438 (2005).
¶ 18 Defendant argues that in order to prevail on his ineffectiveness claim, he need not show
that the motion to quash the search warrant would have been granted; instead, he must show
only that a reasonable probability exists that the motion would have been granted and that the
outcome of his trial would have been different.
¶ 19 In a line of cases beginning with People v. Orange, 168 Ill. 2d 138, 153 (1995), this court
has stated that, in order to establish prejudice where an ineffectiveness claim is based on the
failure to file a suppression motion, the defendant must show only that a reasonable
probability exists both that the motion would have been granted and that the result of the trial
would have been different had the evidence been suppressed. However, later opinions have
articulated a more stringent standard, stating that defendant must establish that the unargued
suppression motion was “meritorious,” i.e., it would have succeeded, and that a reasonable
probability exists that the trial outcome would have been different without the challenged
evidence. See, e.g., People v. Harris, 182 Ill. 2d 114, 146 (1998); People v. Bailey, 232 Ill. 2d
285, 289 (2009). Indeed, in People v. Henderson, 2013 IL 114040, ¶ 12, our supreme court
explicitly disavowed Orange, and clarified that where an ineffectiveness claim is based on
counsel’s failure to file a suppression motion, in order to establish prejudice under
Strickland, the defendant must demonstrate that the unargued suppression motion is
meritorious and that at least a reasonable probability exists that the trial outcome would have
been different had the evidence been suppressed. The Henderson standard controls in the
instant case.
¶ 20 We therefore turn to consider whether the unargued suppression motion in this case was
meritorious. Whether or not a motion to quash a search warrant and suppress evidence should
be filed in a criminal case is a matter of trial tactics and has little bearing on competency of
counsel. People v. Peterson, 248 Ill. App. 3d 28, 38 (1993); People v. Atkins, 161 Ill. App. 3d
600, 609 (1987). A reviewing court will not extend its inquiry into areas involving the
exercise of judgment, discretion, trial tactics or strategy. Id. The decision of whether or not to
file a motion to suppress is best left to trial counsel’s discretion. Id.; People v. Bryant, 128 Ill.
2d 448, 458 (1989).
¶ 21 Our task on review is simply to ensure that the trial court had a substantial basis for
concluding that probable cause existed. People v. Wead, 363 Ill. App. 3d 121, 135 (2005);
Illinois v. Gates, 462 U.S. 213, 238-39 (1983); People v. Tisler, 103 Ill. 2d 226, 248 (1984).
The trial court, when making a probable cause determination, is to apply standards at least as
stringent as those that guide a magistrate in deciding whether to issue a warrant. Id. at 236;
People v. Williams, 147 Ill. 2d 173, 209 (1991) (citing People v. Adams, 131 Ill. 2d 387, 398
(1989), and Tisler, 103 Ill. 2d at 236). Whether the necessary probable cause exists is
governed not by technical legal rules, but rather by commonsense considerations that are
factual and practical. Wead, 363 Ill. App. 3d at 136 (citing People v. Mitchell, 45 Ill. 2d 148,
153-54 (1970)).
¶ 22 Lastly, perhaps the Illinois Supreme Court said it best when the court wrote the
following:
“ ‘Although in a particular case it may not be easy to determine when an affidavit
demonstrates the existence of probable cause, the resolution of doubtful or marginal
cases in this area should be largely determined by the preference to be accorded to
warrants.’ [Citation.] Read in a common-sense and realistic fashion, the affidavits
contained sufficient specificity in light of the totality of the circumstances to justify
the issuance of the search warrants. There was a substantial basis for the magistrate’s
finding of probable cause. [Citation.]” People v. Stewart, 104 Ill. 2d 463, 477 (1984)
(quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).
¶ 23 In construing an affidavit for a search warrant, this court must not substitute its judgment
for that of the magistrate but, rather, must decide whether the magistrate had a substantial
basis to conclude that probable cause existed. People v. Sutherland, 223 Ill. 2d 187, 204
(2006). The United States Supreme Court has indicated that “after-the-fact scrutiny by [the]
courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois
v. Gates, 462 U.S. 213, 236 (1983).
¶ 24 Defendant argues that the affidavit for the search warrant relied on statements of an
informant whose reliability was unestablished and, furthermore, the warrant was based on
uncorroborated information. First, defendant points out that the informant’s account provided
the police with only vague details about the drug sale and that Officer Altamirano
corroborated only one easily verifiable fact: the existence of the house at which the informant
said the drug sale took place. Defendant further points out that as to the reliability of the
unnamed informant in this case, Officer Altamirano received the tip from a single unnamed
source with whom the officer had no prior experience.
¶ 25 The State responds that the facts in the complaint were unquestionably sufficient to
establish probable cause to believe that defendant committed an offense in his residence and
that a search of his person and residence would uncover evidence of that offense. In the
complaint, the affiant, Officer Altamirano, stated that on November 3, 2011, he had a
conversation with J Doe, a private citizen, concerning narcotics sales occurring at 1254 North
Lockwood, Chicago. J Doe revealed that within the last 48 hours, he had gone to the
basement apartment at that location to purchase 10 bags of cannabis from “Sidney.” J Doe
entered the building’s front common door, approached the door leading to the basement
residence and knocked. After a short time, “Sidney” opened the door and asked J Doe what
he wanted. J Doe responded that he wanted to pick up 10 bags of “dro,” which was street
terminology for packaged cannabis for sale. “Sidney” then left and returned holding a clear
plastic bag that contained large amounts of Ziploc bags, and each of the Ziploc bags
contained suspected cannabis. “Sidney” then gave J Doe 10 Ziploc bags, each containing
suspected cannabis, in exchange for $100. J Doe then left, went to another location and
smoked some of the “dro” purchased. J Doe revealed that he got the same euphoric sensation
from smoking that “dro” as he had from smoking “dro” on previous occasions. J Doe
admitted that he had purchased cannabis from “Sidney” on a regular basis for the last month
and that “Sidney” never denied his requests for cannabis. J Doe also admitted that he had
been smoking cannabis for the last three years.
¶ 26 The State further argued that the officer corroborated the information by taking the
informant past the address 1254 North Lockwood, which the informant identified as the
basement residence where he met with Sidney and purchased cannabis on several occasions.
The officer also retrieved a picture utilizing Chicago CLEAR database of a black male
named “Kornegay, Sidney,” who was currently paroled to the basement apartment of 1254
North Lockwood. The picture was shown to J Doe, who identified the defendant as the one
who had sold him cannabis. The State further notes that the officer swore in the complaint
that the informant appeared before the magistrate and was available for any questions. Where
the informant himself is the affiant to the complaint and he recites facts that he personally
observed, a showing of the reliability of the informant is not constitutionally required. People
v. Skinner, 136 Ill. App. 3d 119, 121 (1985); see People v. O’Neal, 40 Ill. App. 3d 448, 450
(1976). When the informant personally appears before the issuing court, such corroboration
is unnecessary. People v. Lyons, 373 Ill. App. 3d 1124, 1128-29 (2007). The informant in the
instant case was also an affiant and appeared before the issuing judge, who was able to make
a firsthand assessment of the informant’s credibility. In construing an affidavit for a search
warrant, a reviewing court must not substitute its judgment for that of the issuing judge but,
rather, only decides whether the issuing judge had a substantial basis to conclude that
probable cause existed. People v. Sutherland, 223 Ill. 2d 187, 219 (2006).
¶ 27 Defendant, nevertheless, argues that a motion to quash the search warrant would have
been successful because the complaint failed to establish the informant’s reliability. He
maintains that the officer did not provide any information about his relationship with the
informant nor did he indicate that earlier information provided by the informant to law
enforcement officials had ever led to arrests, indictments or convictions.
¶ 28 In support, defendant argues that the United States Supreme Court has recognized that
probable cause cannot be established based on an uncorroborated tip from an unidentified
informant. In Florida v. J.L., 529 U.S. 266 (2000), an anonymous informant called the police
and reported that a young black male who was standing at a specific bus stop and wearing a
plaid shirt was carrying a gun. The United States Supreme Court held that the anonymous tip,
without more, did not even amount to reasonable suspicion of wrongdoing and, thus, was not
sufficient to justify the officer’s stop and frisk of the defendant. Id. at 274. Applying the
holding of J.L., the Illinois Appellate Court similarly found that an anonymous informant’s
tip was insufficient to provide reasonable suspicion. In People v. Brown, 343 Ill. App. 3d
617, 619 (2003), an anonymous caller informed an officer that a named subject was driving
to the subject’s home with a shipment of drugs and that he kept a gun in his home. The
officer arrested the defendant outside his home and a gun and narcotics were recovered from
the defendant’s home and car. Id. at 619-20. The appellate court held that the police lacked
reasonable suspicion to stop the defendant because, even though the tip provided the exact
identity of the subject, it lacked the requisite indicia of reliability to justify the stop.
Id. at 626-27.
¶ 29 The State correctly responds that J.L. and Brown are inapposite because, unlike the case
at bar, in J.L. and Brown, the informants did not appear before a magistrate, the informants
did not describe the basis for their knowledge, and the officers did not obtain search
warrants. The State further argues that in J.L. and Brown the informants were truly
anonymous, where, in the case at bar, there was nothing anonymous about the informant
except that his identity was kept secret in the text of the search warrant. The State argues that
it is well established that where “the informant has appeared before the issuing judge, the
informant is under oath, and the judge has had the opportunity to personally observe the
demeanor of the informant and assess the informant’s credibility, additional evidence relating
to informant reliability is not necessary.” People v. Moser, 356 Ill. App. 3d 900, 909 (2005);
see also People v. Phillips, 265 Ill. App. 3d 438, 448 (1994) (finding that corroboration of an
informant’s allegations not needed where informant appeared before judge issuing search
warrant).
¶ 30 Defendant argues that despite the informant’s appearance before the magistrate, no
evidence was presented that the informant was actually questioned. However, our federal
counterpart, the Seventh Circuit Court of Appeals, has found it sufficient that the informant
was available for questioning before the issuance of the warrant, even if no evidence was
presented that the informant was actually questioned. United States v. Johnson, 289 F.3d
1034, 1037 (7th Cir. 2002).
¶ 31 In Johnson, a police officer and a confidential informant appeared in court before the
judge who issued the search warrant. The informant had told the officer that he had observed
the defendant manufacturing cocaine at a particular address and that the defendant told him
he intended to sell the substance. Johnson, 289 F.3d at 1036. The officer corroborated that
the defendant was a black male born on the date specified by the informant and also
confirmed that a vehicle parked at the address was registered to the defendant. Johnson, 289
F.3d at 1036. Although the informant “took an oath and signed an affidavit mirroring the
details” in the officer’s application for the warrant, the record was “unclear” regarding
whether, before issuing the warrant, the judge questioned the informant, whether the
informant testified to the court or if the judge otherwise observed the informant’s demeanor.
Johnson, 289 F.3d at 1037.
¶ 32 When the defendant in Johnson argued on appeal that the government failed to establish
the informant’s reliability, the Seventh Circuit disagreed after examining the totality of the
circumstances as instructed by the United States Supreme Court’s opinion in Gates. Johnson,
289 F.3d at 1038-39. The Johnson court noted:
“When the credibility of a [confidential informant] is at issue, our prior cases instruct
us to consider several factors, such as the informant’s personal observations, the
degree of detail given, independent police corroboration of the *** information, and
whether the informant testified at the probable cause hearing. [Citations.] No single
issue is dispositive; ‘a deficiency in one factor may be compensated for by a strong
showing in another or by some other indication of reliability.’ [Citation.] We
emphasize these factors as a means of examining the [informant’s] reliability and
whether, based upon the facts provided by the [informant], a substantial basis existed
for concluding that law enforcement officials would discover evidence of a particular
crime in a particular place. [Citation.]” Johnson, 289 F.3d at 1038-39 (quoting United
States v. Brack, 188 F.3d 748, 756 (7th Cir. 1999)).
¶ 33 The defendant in Johnson further contended, as does defendant here, that although the
informant was present in court, the record did not establish that the magistrate questioned the
informant. Johnson, 289 F.3d at 1040. While noting that “an on-the-record exchange”
between the court and the informant would support a finding of reliability, the Seventh
Circuit found such evidence was not required, noting that the informant’s presence and
ability to be questioned were “themselves indicia of reliability because they eliminate some
of the ambiguity that accompanies an unknown hearsay declarant.” Id. The court further
noted that the informant’s presence “allows the issuing judge to confront the [informant] if
necessary.” Id. Therefore, we do not find that the lack of an on-the-record colloquy between
the magistrate and the informant destroys the reliability established by the informant’s
presence. The Johnson court stated in a footnote, however, that the informant’s appearance
before the magistrate was only one factor in the Gates “totality of the circumstances”
analysis. Johnson, 289 F.3d at 1040 n.3.
¶ 34 The issuing magistrate’s task “ ‘is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including the
‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.’ ”
People v. Smith, 372 Ill. App. 3d 179, 184 (2007) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)); see also People v. McCarty, 223 Ill. 2d 109, 153 (2006).
¶ 35 Noting the factors set out in Johnson, we weigh the informant’s personal observations,
the degree of detail offered and police corroboration of the information against the fact that
the record does not establish that the informant testified in support of the warrant. Johnson,
289 F.3d at 1038-39. As previously noted, no single factor is determinative, and weakness in
one component can be offset by strength in another. The informant told Officer Altamirano
that he bought cannabis at 1254 North Lockwood in Chicago from a person named “Sidney.”
The informant also positively identified a picture of defendant from a police database. As in
Johnson, the informant in the instant case also admitted using a controlled substance for the
last three years. An admission of familiarity with illegal substances bolsters the informant’s
reliability. See Johnson, 289 F.3d at 1039 (“by making statements against his penal interest
the [informant] offered another indicium of reliability”); United States v. Jones, 208 F.3d
603, 609 (7th Cir. 2000) (such statements supported informant’s reliability and credibility).
The informant also stated he had purchased “dro” from defendant for the last month, was
never denied “dro,” and within the last 48 hours had purchased 10 bags for $100.
¶ 36 We find that, despite the lack of proof that the informant was questioned in court, the
informant appeared before the magistrate when the warrant was issued and, thus, was
available for questioning. The fact that questioning may or may not have occurred does not
undermine the magistrate’s finding that probable cause existed to issue the search warrant
because the informant’s very presence supported his or her reliability. See Johnson, 289 F.3d
at 1040. Taken as a whole, the evidence provided the magistrate with a substantial basis to
conclude that probable cause existed to search 1254 North Lockwood. The record supported
the magistrate’s finding of probable cause. Therefore, defendant’s claim does not support an
argument that his trial counsel was ineffective for failing to file a suppression motion because
any such motion would not have been meritorious and the omission of such a motion did not
prejudice defendant. Smith, 372 Ill. App. 3d at 182. See Strickland, 466 U.S. at 687; People v.
Easley, 192 Ill. 2d 307, 317 (2000) (to show ineffectiveness of counsel, a defendant must
demonstrate both that his attorney’s performance fell below a standard of reasonableness and
also that the error resulted in an unreliable or unfair proceeding).
¶ 37 Alternatively, even if the complaint for warrant fell short of establishing the informant’s
reliability and therefore probable cause, the State argues that defendant suffered no prejudice
from trial counsel’s decision not to file a motion to quash the search warrant and suppress
evidence, because the seized evidence would still have been admissible under the good faith
exception to the exclusionary rule. See United States v. Olson, 408 F.3d 366, 372 (7th Cir.
2004) (the Seventh Circuit, after rejecting the defendant’s argument that the complaint for
search warrant did not provide enough to establish probable cause, and added: “[i]n any
event, the warrant would be saved by the good[-]faith exception”). Defendant responds that
the good-faith exception to the exclusionary rule does not apply, since the affidavit in this
case was “so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” (Internal quotation marks omitted.) United States v. Leon, 468 U.S.
897, 923 (1984).
¶ 38 In Illinois v. Krull, 480 U.S. 340, 348 (1987), the United States Supreme Court noted that
the Court had held in Leon that “the exclusionary rule should not be applied to evidence
obtained by a police officer whose reliance on a search warrant issued by a neutral magistrate
was objectively reasonable, even though the warrant was ultimately found to be defective.”
In People v. Stewart, 104 Ill. 2d 463, 477 (1984), the Supreme Court of Illinois adopted the
holding in Leon for this state, writing as follows: “Even if one assumes a want of
particularity in the affidavits, the agents’ reasonable and good-faith belief, although a
possibly mistaken one, that the searches were authorized under the warrants, insulated the
searches from a motion to suppress.”
¶ 39 As this court noted in People v. Cooke, 299 Ill. App. 3d 273, 281 (1998), the Supreme
Court in Leon listed four situations in which the good-faith exception did not apply:
“ ‘(1) where the judge in issuing a warrant was misled by information in an affidavit
that the affiant knew was false or would have known was false except for his reckless
disregard of the truth [citation]; (2) where the issuing judge wholly abandoned his
judicial role ***; (3) where the affidavit is so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable [citation]; and (4) where
a warrant is so facially deficient that the executing officers cannot reasonably
presume it to be valid [citations].’ ” Cooke, 299 Ill. App. 3d at 281 (quoting People v.
Bohan, 158 Ill. App. 3d 811, 818 (1987)).
¶ 40 We agree with the Seventh Circuit’s characterization of the Leon good-faith exception, in
United States v. Peck, 317 F.3d 754, 757 (7th Cir. 2003). In that case, the court first noted
that a police officer’s decision to obtain a search warrant “is prima facie evidence that he was
acting in good faith.” The court further explained as follows:
“To rebut this evidence[, the defendant] must show that the magistrate simply
rubber-stamped the warrant application, the officers were dishonest or reckless in
preparing the affidavit, or the warrant was so lacking in probable cause that no officer
could have relied on it.” Id.¶ 41 The State maintains that there is no evidence that Officer Altamirano deliberately or
recklessly disregarded defendant’s fourth amendment rights. Nor did the officer’s actions
constitute gross negligence. The State argues that Officer Altamirano subjected his grounds
for searching defendant and his residence to judicial scrutiny. Defendant had a severely
curtailed expectation of privacy in his person and residence because he was on mandatory
supervised release (formerly parole) (MSR) and on home monitoring. The State further
argues that the suppression of evidence of crimes committed by a parolee on home
monitoring constitutes a cost too heavy for society to endure.
¶ 42 We agree with the State. No colorable argument can be made on this record that the trial
judge wholly abandoned his judicial role when he issued the search warrant at issue, and
defendant does not so argue. As noted, we have already found that there was probable cause
for the issuing of a search warrant; however, even if that were not the case, we would still
find the fruits of the search admissible under the good-faith exception.
¶ 43 The State further argues, and we agree, that defendant had a reduced expectation of
privacy in his home because he was a parolee who signed an MSR agreement that included a
consent-to-search condition. Defendant argues that there is insufficient proof that he signed
an MSR agreement. He contends that since there is no record of an MSR agreement, he has
not submitted to a diminished standard of privacy. He maintains that because there is no
MSR agreement in the record, there is no reason to presume that he signed one. Defendant
further argues that his parole status appearing on the face of the complaint for the search
warrant fails to prove that he signed an MSR agreement.
¶ 44 In Illinois, prisoners not serving a term of natural life imprisonment will eventually
become eligible for MSR (730 ILCS 5/3-3-3(c) (West 2006)), and when eligible for MSR,
they are presented with an agreement that sets forth the conditions of their release from the
physical custody of the Department of Corrections (730 ILCS 5/3-3-7 (West 2006)). People
v. Wilson, 228 Ill. 2d 35, 48 (2008). They must sign this agreement and retain a copy in order
to secure their release from the physical custody of the Department of Corrections. 730 ILCS
5/3-3-7(c) (West 2006); Wilson, 228 Ill. 2d at 48; see also In re Detention of Powell, 217 Ill.
2d 123, 128 (2005) (prisoner who refused to sign his MSR agreement was kept in physical
custody). Illinois parolees remain in the legal custody of the Department of Corrections for
the duration of their MSR. 730 ILCS 5/3-14-2(a) (West 2006).
¶ 45 The State argues that Samson v. California, 547 U.S. 843 (2006), is persuasive. Although
Samson involved the California parole system, we find that the MSR systems of Illinois and
California are very much alike in operation and that Samson parallels our analysis of a search
of an Illinois prisoner on MSR. In Samson, the Supreme Court found that the reduced
expectation of privacy a parolee has is further diminished by his acceptance of the clear and
unambiguous terms of the search condition contained in his parole agreement. Samson, 547
U.S. 843. In Samson, the United States Supreme Court held that a completely suspicionless
search of the parolee on a public street was reasonable because the parolee’s diminished
expectation of privacy was outweighed by the State’s substantial interest in supervising
parolees. Id. at 850, 852-53. Since Samson, many courts have held that there is no difference
between the expectation of privacy a parolee has in his person and his residence, provided
that the parolee has signed an agreement containing a search condition similar to defendant’s
search condition. These cases all implement the principle set forth in Samson that “a State’s
interests in reducing recidivism and thereby promoting reintegration and positive citizenship
among probationers and parolees warrant privacy intrusions that would not otherwise be
tolerated under the Fourth Amendment.” Samson, 547 U.S. at 853.
¶ 46 The State correctly notes that MSR agreements contain a broad search condition.
Pursuant to section 3-3-7(a), in Illinois, all prisoners must sign an MSR agreement setting
forth release conditions and every MSR agreement must include certain conditions set forth
in section 3-3-7, including the condition that the parolee “consent to a search of his or her
person, property, or residence.” 730 ILCS 5/3-3-7(a)(10) (West 2010). Thus, the State
maintains, and we agree, that defendant being on mandatory supervised release and on home
monitoring had a severely diminished expectation of privacy in his person and residence. We
find under the circumstances in the case at bar, defendant, a convicted felon, on home
monitoring, signed an MSR agreement and was operating under a diminished expectation of
privacy. A prisoner who refuses to sign an MSR agreement will not be released from
custody. See Wilson, 228 Ill. 2d at 48; see also Powell, 217 Ill. 2d at 128 (prisoner who
refused to sign his MSR agreement was kept in custody).
¶ 47 In United States v. Lopez, 474 F.3d 1208 (9th Cir. 2007), the defendant was a parolee
with a search condition that put him on notice that his person, property, and residence were
subject to search at any time. Lopez, 474 F.3d at 1209. Following Samson, the Lopez court
held that the defendant, as a parolee, did not have an expectation of privacy in his residence
that society would recognize as legitimate. Lopez, 474 F.3d at 1213. The Lopez court held:
“If *** a parolee has no expectation of privacy in his person, we reason that a parolee
has no legitimate expectation of privacy in his residence either, at least when the
parolee is present. Any other rule would diminish the protection to society given by
the search condition of parole, permitting search at any time.” Lopez, 474 F.3d at
1213.
¶ 48 In the instant case, we find that defendant was required to sign and accept a search
condition requiring him to consent to a search of his person, property, or residence under his
control. Like the defendants in Samson and Lopez, his status on MSR, coupled with the
condition of home monitoring at 1254 North Lockwood, reduced his expectation of privacy
in his residence to a level that society would not recognize as legitimate. Accordingly, the
special protection normally afforded to an individual’s home does not apply to defendant.
See Wilson, 228 Ill. 2d at 50-51.
¶ 49 Thus, under the circumstances presented in this case, there is no reasonable probability
that a motion to quash would have been successful and therefore defendant was not
prejudiced by his counsel’s failure to file such a motion. His ineffective assistance of counsel
claim fails. See People v. Van De Rostyne, 63 Ill. 2d 364, 366 (1976) (the method to
challenge the constitutionality of a defendant’s arrest is through a motion to quash and
suppress evidence).
¶ 50 The parties raise several concluding matters. First, the State argues that the trial court’s
decision to merge defendant’s conviction for possession of the controlled substance into his
conviction for unlawful use of a weapon by a felon was erroneous. The State maintains that
the judge made a finding of guilt on a lesser included offense of possession of less than one
gram of heroin. 720 ILCS 570/402(c) (West 2010) (“Any person who violates this Section
*** is guilty of a Class 4 felony.”). Because a conviction on a Class 4 felony carries a one- to
three-year sentencing range (730 ILCS 5/5-4.5-45 (West 2010)), the State contends that we
should remand for sentencing on the possession of heroin offense. Defendant agrees that the
trial court meant to enter a finding of guilty on the possession of a controlled substance
count. However, instead of remanding, defendant argues that we should impose a three-year
sentence on count II, to run concurrently with his conviction on count I.
¶ 51 We agree that the judge made a finding of guilty on the possession count. We therefore
reinstate defendant’s conviction for possession of a controlled substance. See People v.
Yaworski, 2011 IL App (2d) 090785, ¶ 10; see People v. Scott, 69 Ill. 2d 85, 87-88 (1977) (in
an appeal by the defendant, the reviewing court may correct an erroneous trial court ruling
that one offense merges into another and may remand for sentencing on the former offense so
that a complete judgment will have been entered). Since the trial court did not impose a
sentence for count II, pursuant to Illinois Supreme Court Rule 615(b)(2) we impose a
sentence of three years’ imprisonment for possession, to be served concurrently with the
sentence for unlawful use of a weapon by a felon and order the clerk of the circuit court to
correct the mittimus to reflect a conviction on count II, to run concurrently with the five-year
sentence on count I. Ill. S. Ct. R. 615(b)(2) (reviewing court may “set aside, affirm, or
modify any or all of the proceedings subsequent to or dependent upon the judgment or order
from which the appeal is taken”).
¶ 52 On the question of costs, the defendant contends and the State correctly concedes that it
was improper to assess the defendant a $5 court system fee pursuant to section 5-1101(a) of
the Counties Code (55 ILCS 5/5-1101(a) (West 2012)). The court system fee is only to be
paid in the case of a violation of the Illinois Vehicle Code. Id. Defendant’s offenses do not
fall into this category, and so we vacate this fee.
¶ 53 Defendant also challenges the assessment of a court services fee of $25 pursuant to
section 5-1103 of the Counties Code (55 ILCS 5/5-1103 (West 2012)). Defendant argues that
the court services fee is only applicable to one of the several offenses enumerated in section
5-1103. 55 ILCS 5/5-1103 (West 2012). The State maintains that the $25 court services fee
was properly imposed because the statute authorizing the fee applies to all criminal offenses.
We agree with the State. Section 5-1103 of the Counties Code expressly provides that the
purpose of this fee is to defray “court security expenses incurred by the sheriff in providing
court services.” 55 ILCS 5/5-1103 (West 2012). See People v. Williams, 2011 IL App (1st)
091667-B; People v. Adair, 406 Ill. App. 3d 133, 145 (2010) (based on the encompassing
language of the statute and its clear purpose of defraying court security expenses, court
rejected the argument that the failure to list the offenses the defendant committed meant that
he could not be required to defray the expenses incurred by the sheriff for his court
proceedings). Thus, we find the court services fee was properly assessed following the
defendant’s convictions.
¶ 54 Finally, defendant correctly asserts that he is entitled to a $5-per-day credit for each day
spent in custody before he was sentenced. 725 ILCS 5/110-14 (West 2010). Defendant was
eligible for 278 days of presentence custody credit for his offenses in this case. While a
defendant is allowed a credit of $5 for each day he is incarcerated, the amount cannot exceed
the amount of the fines. 725 ILCS 5/110-14(a) (West 2010). Defendant’s 278 days in
presentence custody are more than sufficient to offset the $80 in fines he was assessed.
Defendant maintains and the State agrees that the court miscalculated the total fees imposed
on defendant. We adjust the total fees from the imposed $600 to the corrected $500.
¶ 55 CONCLUSION
¶ 56 For the foregoing reasons, we modify the judgment of the circuit court by reinstating
defendant’s conviction of possession and sentencing defendant to three years’ imprisonment,
to be served concurrently with his sentence for unlawful use of a weapon by a felon. We
affirm the judgment of the circuit court with regard to count I, unlawful use of a weapon by a
felon. We affirm the imposition of the $25 court services fee, vacate the $5 court system fee,
adjust the total fines imposed by the trial court to $500 and reduce defendant’s total
assessment to $415.
¶ 57 Affirmed as modified; fines, fees and costs order corrected.