Appeal from Circuit Court of McLean County No. 08CF1194 Honorable James E. Souk, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Knecht
PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Appleton and Pope concurred in the judgment and 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 possession of a controlled substance. In April 2009, the court sentenced defendant on his possession-with-intent-to-deliver conviction 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.
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 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. Williamson 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 processing the arrest, Fromhertz was waiting for Williamson there and repeated his suggestion. Again, Williamson told Fromhertz to wait so they could discuss Fromhertz's proposal later. Approximately 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, Williamson was unaware of Fromhertz's motives for seeking police intervention 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 passenger. 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 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 Williamson'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. Although 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, Williamson called Tuttle and requested him to call Fromhertz about a possible drug transaction with some people from Bloomington.
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 arranged 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 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 identify 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 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 intermediary 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 up per lip tucked under his upper teeth and Tuttle suspected there 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 containing 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 defendant's lip and gums to remove the remaining contraband. Defendant jerked away. "[S]omewhat of a struggle" ensued. Eventually, several more Baggies of suspected cocaine were produced from defendant's mouth. Tuttle estimated 15 minutes elapsed from 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 defendant'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 Tuttle acquired before conducting the search. Alternatively, the ...