Appeal from theCircuit Court of Cook County. No. 09 CR 16991 The Honorable Neil J. Linehan, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justice McBride concurred in the judgment and opinion.
Justice R.E. Gordon dissented, with opinion.
The circuit court denied defendant Terry Byrd's motion to quash his arrest and suppress the drugs recovered from the car the defendant was driving after he was stopped and arrested for operating a car without a valid driver's license. Following a stipulated bench trial, the defendant was found guilty of a lesser included offense. The defendant contends the recovery of the drugs from his car was not a lawful search incident to his arrest under the United States Supreme Court's recent decision of Arizona v. Gant, 556 U.S. __, 129 S. Ct. 1710 (2009), which was decided after his suppression hearing was held. He urges us to apply the Gant decision in addressing his appeal as the Illinois Supreme Court did in People v. Bridgewater, 235 Ill. 2d 85, 92, 918 N.E.2d 422 (2009). In the alternative, he requests we remand for a new suppression hearing based on trial counsel's ineffectiveness, an outcome the State also seeks as an alternative disposition. We remand for a new suppression hearing to allow the parties to address the issues raised by Gant before the circuit court in the first instance.
In September 2008, the defendant was charged by information with possession of numerous packets containing heroin that were recovered from a magnetic box the arresting officers seized from under the chassis of the car the defendant was driving. He was charged with possession of at least 1 but less than 15 grams of a substance containing heroin with intent to deliver under section 401(c) of the Code of Criminal Procedure of 1963 (720 ILCS 570/401(c) (West 2008)). The defendant filed a pretrial motion to quash his arrest and suppress evidence, claiming the "stop, search, seizure and arrest of [the defendant] were not reasonable." The following evidence was adduced at the hearing.
On August 5, 2008, Officer Marshall and Officer Felker of the Chicago police department conducted a narcotics surveillance of the 7200 block of South Spaulding Avenue. The police district had received an anonymous phone call claiming that narcotics transactions involving a Chevrolet Cavalier were ongoing at that location. The officers parked their unmarked police car in a nearby alley and concealed themselves in a gangway at 7231 S. Spaulding. Officer Marshall testified he observed the defendant arrive in the 7200 block of South Spaulding driving a gray Chevrolet Cavalier, with a female passenger in the front seat. Officer Marshall saw a white woman, standing on the sidewalk in front of 7229 S. Spaulding, flag down the defendant's car.
From about 20 to 22 feet away, Officer Marshall observed the defendant engage in a conversation with the woman through the open front passenger car window. Officer Marshall then observed the defendant open his driver's side door, reach his arm underneath the car, and retrieve a small black box. According to Officer Marshall, the defendant handed the woman tiny "shiny objects from that black box" for "an exchange of money." Officer Marshall did not overhear the conversation and could not make out the denomination of the money. After the exchange, the defendant opened his car door and returned the box to the undercarriage of the car. When the defendant drove off, the officers ran back to their unmarked police car located in the east alley of Spaulding.
The officers saw the defendant's car travel south on Spaulding Avenue and turn east on 73rd Street, at which point they lost sight of the defendant's car. From the alley, the officers drove eastbound on 73rd Street. The officers spotted the defendant's car traveling northbound on Sawyer, the street immediately east of Spaulding. The officers activated their emergency lights and pulled over the defendant near 71st Street and Sawyer Avenue.
Officer Marshall testified that both he and his partner, Officer Felker, exited the police car. Officer Felker approached the driver's side window while Officer Marshall remained directly behind his partner, near the front of the police car. Officer Marshall testified that when his partner asked to see the defendant's license, the defendant admitted he could produce neither a driver's license nor proof of insurance. The defendant was immediately ordered out of his car and placed in handcuffs. With the defendant in handcuffs near the front of the police car, Officer Felker reached under the chassis of the car and retrieved the same magnetic black box the officers had observed the defendant retrieve. The box measured about one inch by three or four inches and was the kind commonly used to store a spare key. Officer Felker opened the black box, which revealed "little plastic square baggies" containing suspected heroin. Officer Marshall conceded he and his partner did not possess a warrant to arrest the defendant or to search his car; the defendant also did not consent to the search of his car. The defendant's vehicle was impounded.
On redirect examination by defense counsel, Officer Marshall admitted that neither the report he prepared nor the report prepared by Officer Felker mentioned a phone call concerning a Chevrolet Cavalier delivering drugs in the 7200 block of South Spaulding. Officer Marshall also admitted that he and Officer Felker were unaware the defendant did not possess a valid driver's license or proof of insurance at the time they stopped the defendant's car. According to Officer Marshall, the woman they observed flag down the defendant's car was never stopped because she was gone by the time the officers returned to the scene. Officer Marshall was the only witness that testified at the suppression hearing.
Judge Neil J. Linehan ruled the stop of the defendant's car was a lawful Terry stop triggered by the suspicious street transaction by the defendant and the woman on the sidewalk. The search of the defendant's car was permissible as incident to a lawful arrest after the defendant was discovered to be driving without a valid driver's license.
Following the denial of his motion, the defendant waived his right to a jury and a bench trial ensued. The parties stipulated that Officer Marshall would testify as he testified at the suppression hearing, except that his testimony regarding the tipster's phone call would be excluded on defense counsel's hearsay objection. The parties also stipulated to the scientific evidence regarding the suspected heroin: the chain of custody was maintained; the chemist would testify that 6 of the 13 bags tested positive for the presence of heroin; and the 6 tested bags weighed 1.1 grams. Judge Linehan found the defendant guilty of the lesser charge of possession of heroin and sentenced him to three years' imprisonment on the Class 4 felony with a recommendation for drug treatment.
The defendant's timely appeal followed.
The defendant raises two claims: (1) the retrieval and search of the magnetic box attached to his car was unconstitutional under Gant because his arrest for not having a driver's license did not authorize the search and seizure; and (2) he received ineffective assistance of counsel when defense counsel did not impeach the officer with what the defendant characterizes as a "completely contradictory account" of his arrest. Should we decline to suppress the heroin recovered from the magnetic box, the defendant requests that we remand for a new suppression hearing based on his second claim.
The State contends that our de novo review of the ultimate legal ruling on the suppression motion compels a finding that probable cause existed for the stop and search of the defendant's car based on the totality of the information the officers possessed, in particular what they observed during their narcotics surveillance. Thus, the search and seizure of the magnetic box was not incident to a lawful arrest for driving without a valid driver's license and therefore Gant has no application here. Should we conclude that Gant applies, the State requests we remand for a new suppression hearing to permit it to "adduce evidence concerning police impoundment procedure, the inventory search exception, and the possible inevitable discovery of the heroin in the black box."
Denial of Suppression Motion
"In reviewing a ruling on a motion to suppress evidence, we give great deference to the trial court's factual findings and will reverse those findings only if they are contrary to the manifest weight of the evidence. [Citation.] The trial court's legal ruling on whether the evidence should be suppressed is reviewed de novo." Bridgewater, 235 Ill. 2d at 92-93.
We set out in greater detail the proceedings on the defendant's motion to quash arrest and suppress evidence to give proper context to our analysis.
At the close of the evidence in the suppression hearing, the State argued that the testimony of Officer Marshall demonstrated probable cause that the defendant had engaged in a street sale of narcotics to the woman that flagged down the defendant in his Chevrolet Cavalier. "The officer told you that he has been a police officer for 14 years, that he has seen hundreds of narcotic transactions and he believed that that's what he saw happening here[:] *** a narcotics transaction."
The trial judge agreed that the totality of the circumstances demonstrated by Officer Marshall's testimony presented the question of "whether that would be enough for an arrest." However, the experienced trial judge did not agree that the evidence established probable cause that the street transaction was a drug sale. "[O]ne transaction on its face certainly wouldn't be enough for an arrest." Nor did the telephone call to the district that prompted the narcotics investigation by the arresting officers add to the State's claim of probable cause. "[T]he police receive information anonymously all the time but they are required to go about *** and find probable cause." The trial judge observed that phone calls claiming drug dealing information are often "unreliable" in addition to being "anonymous." To the State's claim that the totality of the circumstances established probable cause, the experienced trial judge concluded: "I don't think so." He later reiterated this conclusion: "I am sure the State's argument is one is enough. I don't believe so."
While the trial judge did not make express findings of fact on the record as mandated by section 114-12(e) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-12(e) (West 2006) (order granting or denying a motion to suppress "shall state the findings of fact and conclusions of law upon which the order *** is based")), his legal conclusion sufficiently informs us of the supporting inferences the trial judge may have drawn to reach his decision. See People v. Moore, 286 Ill. App. 3d 649, 652, 676 N.E.2d 700 (1997) ("The trial court's determination concerning factual matters, including the reasonable inferences to be drawn from the testimony, is entitled to deference [citations], and this determination will not be disturbed on review unless manifestly erroneous [citations].").
The trial judge made clear his assessment that probable cause for drug dealing was not established from the single street transaction testified to by Officer Marshall. In other words, the defendant was arrested not because probable cause existed that he engaged in a drug sale, but because he failed to produce a valid driver's license and insurance card after his car was stopped.
The record establishes that the trial judge gave little weight to the phone call that triggered the narcotics investigation. The phone call was anonymous, which the trial court also characterized as "unreliable." See Florida v. J.L., 529 U.S. 266, 275 (2000) (Kennedy, J., concurring, joined by Rehnquist, C.J.) ("If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable."). Based on defense counsel's examination of Officer Marshall, he established that the anonymous phone call was not mentioned in either of the reports prepared by the arresting officers. Though Officer Marshall claimed that "[i]n one report it was mentioned that there was a phone call to the station regarding a Chevy Cavalier," no such report was ever brought to light by the State at the hearing; nor does the State claim the existence of such a report in the record before us.
There is also nothing in the record to support a contention that the officer received the anonymous information directly. Officer Marshall testified that the anonymous phone call came into "the station." To the extent Officer Marshall did not personally answer that call, the reliance on such police communication to establish probable cause is doubtful. See People v. Lawson, 298 Ill. App. 3d 997, 1002, 700 N.E.2d 125 (1998) ("Only if the officer issuing a radio bulletin has probable cause to effectuate an arrest himself will an arrest by another officer in reliance on the radio bulletin be upheld. As one leading authority has observed, if the rule were otherwise, 'an officer or agency possessed of facts insufficient to establish probable cause could circumvent the Fourth Amendment by the simple device of directing or asking some other officer or agency to make the arrest and search.' ") (quoting 2 Wayne R. LaFave, Search and Seizure §3.5(b), at 255-56 (3d ed. 1996)).
It is also consistent with the no-probable-cause ruling that the trial judge discounted Officer Marshall's claim that his 14 years as a narcotics officer enabled him to know a narcotics deal when he sees one. While the State was free to urge the court to give great weight to Officer Marshall's depth of experience, the trial judge was free to disregard the officer's claims as subjective impressions of his observations. When assessing probable cause, "[our] inquiry must focus on what was done and known by the police, not on what was believed, what the facts objectively viewed add up to, not what the officer on the scene believed they added up to." People v. Moody, 94 Ill. 2d 1, 9, 445 N.E.2d 275 (1983). We also find no reason to disagree with the implicit decision of the circuit court to give little weight to Officer Marshall's testimony that the woman that engaged in the single transaction with the defendant "looked like [a drug abuser]." See Moody, 94 Ill. 2d at 10 (it is evidence that determines the reasonableness of an officer's conduct).
Finally, although not mentioned by the trial judge, Officer Marshall testified he observed the defendant exchange "shiny objects" for United States currency with the woman that flagged him down. His partner, however, consistent with the scientific evidence, recovered "plastic square baggies" of suspected heroin in the magnetic box seized from the defendant.
Against this evidence, the State persists in its contention that probable cause to arrest the defendant for narcotics transaction existed based on Officer Marshall's testimony. The trial judge explained that the single transaction observed by the officer "wouldn't be enough for an arrest." As a proposition of law, we find nothing in the State's brief to persuade us the trial judge got it wrong.
A single hand-to-hand street exchange, between a defendant and a person never questioned regarding what he or she received, has generally been held insufficient to find reasonable probability that one of the items exchanged was actually contraband. See People v. Oliver, 368 Ill. App. 3d 690, 692, 859 N.E.2d 38 (2006) (no probable cause present where the officer claimed that based on his training and experience, the transactions between defendant and two unknown individuals involved drugs even though he "never saw any narcotics exchanged"); People v. Holliday, 318 Ill. App. 3d 106, 111, 743 N.E.2d 587 (2001) (single exchange, which gave rise to Terry stop, was insufficient to establish probable cause when it was uncertain a crime had occurred); People v. Rainey, 302 Ill. App. 3d 1011, 1015, 706 N.E.2d 1062 (1999) (suspicious but equivocal conduct warranted an investigative inquiry but did not justify a search); Moore, 286 Ill. App. 3d at 650-51 (suspicions of criminal activity at tavern did not give rise to a proper Terry stop when only an exchange of money was observed).
We decline the State's invitation to hold that the facts in this case, which amounted to no more than a single street transaction, established probable cause of a drug exchange as a matter of law when the trier of fact has concluded otherwise. See People v. Green, 179 Ill. App. 3d 1, 17, 535 N.E.2d 413 (1988) (where inconsistencies and conflicts exist in the evidence, trier of fact is in a better position to assess the evidence); People v. McGhee, 106 Ill. App. 3d 767, 769, 436 N.E.2d 267 (1982) (trial court's determination that probable cause did not exist to conduct a search of the defendant's car upheld).
The judge did find, however, that a lawful Terry stop occurred of the defendant's car.*fn1
Because the defendant does not challenge that ruling, we note only that the Terry stop provided the basis for his arrest. Once the defendant admitted he did not have a valid driver's license, the officers had probable cause to arrest him. People v. Moorman, 369 Ill. App. 3d 187, 196, 859 N.E.2d 1105 (2006) (defendant's statement that he could not produce a driver's license because it was revoked provided probable cause to arrest).
Ultimately, the trial judge ruled that the recovery of the magnetic box under the chassis of the defendant's car was a lawful search incident to that arrest. Of course, because Gant was decided after the motion was litigated in this case, the parties did not conduct the motion to suppress with Gant in mind.
The defendant contends that because he was arrested only for not having a valid driver's license, the search and seizure of the magnetic box was not justified under Gant. He suggests that, like Bridgewater, " 'Gant is dispositive on the facts of this case.' " Bridgewater, 235 Ill. 2d at 92.
The State responds that should we find that the defendant's arrest is subject to review under Gant, we should remand for a new suppression hearing to give it an opportunity to introduce evidence it would have introduced had the issues in Gant been litigated. In other words, unlike the position of the prosecuting agency in Bridgewater, the State here disputes that " 'Gant is dispositive on the facts of this case.' " Bridgewater, 235 Ill. 2d at 92.
Because we find the record inadequate to resolve the questions raised by the parties, we remand for a new suppression hearing to allow the parties to develop the facts in light of Gant and to allow the circuit court to make express findings of fact and conclusions of law pursuant to section 114-12(e) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-12(e) (West 2008)).
In light of our disposition, we address only briefly the defendant's ineffective assistance of counsel claim.
Ineffectiveness of Counsel
The defendant contends defense counsel failed to impeach the testifying officer with the version of the stop of the defendant's car in the police report that he contends gives an entirely "different traffic stop [account]." The defendant lists six differences between Officer Marshall's testimony at the suppression hearing and the account in the police report. He contends there was "no sound strategic reason for counsel not to impeach."
We set out the details of only one contradictory account. The defendant quotes Officer Marshall's "Incident Narrative" from his arrest report:
"A/O were able to curb vehicle at 7101 South Sawyer. Upon A/O's placing hand under the body of vehicle under driver's side, A/O discovered same black box. A/O asked [arrestee] what was in box, he replied, 'Dope!' Upon opening same discovered 13 clear zip baggies, with black print, each containing white powder substance, suspect white heroin."
We agree that the statement attributed to the defendant may be relevant in assessing the issues before the circuit court on the defendant's suppression motion. See People v. Salgado, 238 Ill. App. 3d 238, 246-47, 635 N.E.2d 1367 (1994) (defense counsel ineffective for failing to impeach sole identification witness that directly implicated the defendant). We cannot say, however, that the relevance of the statement would be limited to the impeachment of the ...