Appeal from the Circuit Court of Cook County. No. 09 CR 17149 Honorable Stanley Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
JUSTICE MURPHY delivered the judgment of the court, with opinion. Preswiding Justice Steele and Justice Salone concurred in the judgment and opinion.
¶ 1 After a bench trial, defendant Carl Henderson was found guilty of aggravated unlawful use of a weapon and sentenced to eight years in prison. On appeal, defendant contends that he was denied effective assistance of counsel because counsel did not file a motion to suppress when there was a lack of a reasonable suspicion for the initial stop of the car in which defendant was a passenger. We affirm.
¶ 2 At trial, Officer Robert Staken testified that on the afternoon of September 8, 2009, he was on patrol with his partner, Officer Brophy, when they spoke to an anonymous citizen. This citizen, an African-American man in his twenties, told them about a tan, four-door Lincoln with three passengers, which contained a gun. At trial, Staken indicated that he did not remember what the man was wearing, his height, or whether the man had facial hair.
¶ 3 Approximately five minutes later, the officers saw a four-door tan Lincoln with three passengers and curbed the vehicle. As the officers approached the vehicle, the driver got out and began walking toward them. This man was ordered back to the vehicle. There, the officers handcuffed the driver and a passenger. Staken then ordered defendant, who was sitting in the backseat, out of the car. Defendant exited from the driver's side of the vehicle, and, as he was being "passed" to Staken by Brophy, took off running. As defendant ran away, an object fell to the ground. Once the object was on the ground, Staken realized that it was a handgun.
¶ 4 Staken alerted Brophy that defendant had dropped a gun, then got into the squad car and chased defendant. Eventually, defendant fell to the ground. At that point, Staken exited the car and handcuffed defendant.
¶ 5 Officer Matthew Brophy testified consistently with Staken regarding the details of the conversation with the anonymous citizen. Although Brophy did not recall what the man was wearing, he did remember that the man was of average height. Brophy's testimony was also consistent with that of Staken regarding the stop of the Lincoln. After defendant exited the car from the driver's side, Brophy then handed defendant over to Staken and returned to the other two men. At that point, defendant began to run away. Brophy later recovered a .22-caliber handgun from the ground approximately two feet away from the Lincoln.
¶ 6 Ultimately, the trial court found defendant guilty of aggravated unlawful use of a weapon and sentenced him to eight years in prison.
¶ 7 On appeal, defendant contends that counsel's failure to file a motion to suppress constituted ineffective assistance of counsel because the officers' initial seizure of the Lincoln was not based on either reasonable suspicion or probable cause. Consequently, he argues that the gun dropped during his subsequent flight must be suppressed as the fruit of an illegal search.
¶ 8 To show that counsel was ineffective, a defendant must demonstrate both that counsel's performance was deficient and that as a result he was prejudiced. People v. Bailey, 232 Ill. 2d 285, 289 (2009) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In order to succeed on an ineffective assistance of counsel claim, a defendant must overcome the presumption that the challenged conduct might be considered sound trial strategy under the circumstances. People v. Snowden, 2011 IL App (1st) 092117, ¶ 70. The decision whether to file a motion to suppress is generally considered a matter of trial strategy that will typically not support a claim of ineffective assistance of counsel. Snowden, 2011 IL App (1st) 092117, ¶ 70. In order for a defendant to establish that he was prejudiced by counsel's failure to file a motion to suppress, he must show a reasonable probability that the motion would have been granted and that the outcome of the trial would have been different if the evidence at issue had been suppressed. People v. Patterson, 217
Ill. 2d 407, 438 (2005). An attorney's decision not to file a motion to suppress will not be grounds to find incompetent representation when the motion would have been futile. Patterson, 217 Ill. 2d at 438.
¶ 9 Here, defendant contends that his rights under the Illinois and United States constitutions were violated when he was illegally seized, and, consequently, the gun dropped during his subsequent flight must be suppressed as the fruit of that illegal seizure. Under People v. Rhinehart, 2011 IL App (1st) 100683, ¶¶ 14-18, the initial seizure in this case was illegal because it was based on an anonymous tip that was not sufficiently reliable to provide the officers with a reasonable suspicion that defendant was engaged in criminal activity which would justify a stop under Terry v. Ohio, 392 U.S. 1 (1968). However, unlike the defendant in Rhinehart, who did not attempt to flee when approached by officers, here, defendant was seized, then broke away from the officers and ran before he was seized a second time. The State responds that regardless of the legality of the initial stop, defendant ended that stop when he ran away and he cannot now seek to exclude the gun because he was not in custody, i.e., "seized" when he dropped it.
¶ 10 The fourth amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. Similarly, article I, section 6, of the Illinois Constitution provides that the "people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches [and] seizures." Ill. Const. 1970, art. I, ¶ 6. Illinois courts interpret article I, section 6, in "limited lockstep" with the fourth amendment. People v. Caballes, 221 Ill. 2d 282, 313 (2006). Our supreme court has explained that the limited lockstep approach is based upon the premise that the drafters of the 1970 constitution intended that the phrase "search and seizure" in the state constitution mean "in general, what the same phrase means in the federal constitution." Caballes, 221 Ill. 2d at 314. This approach, as adopted and modified by our supreme court, permits the consideration of state tradition and values "as reflected by long-standing case precedent." Caballes, 221 Ill. 2d at 314.
¶ 11 In the case at bar, although defendant argues that his position on appeal rests upon the protections offered by both the fourth amendment and the Illinois Constitution, defendant's only citation to authority is for the very general proposition that the Illinois Constitution of 1970 protects a person's right to be free from unreasonable searches and seizures. Defendant has failed to provide any citation to authority or argument as to ...