Modified upon denial of rehearing June 7, 2013
The appellate court rejected defendant’s contention that his counsel was ineffective in failing to move to suppress statements defendant made after he was given warnings on the ground that the officers used the “question first, warn later” tactic, since there was no direct evidence the officers violated the rule in Seibert by deliberately using that tactic to avoid the limits set forth in Miranda.
Appeal from the Circuit Court of Kane County, No. 09-CF-577; the Hon. Allen M. Anderson, Judge, presiding.
Thomas A. Lilien and Christopher McCoy, both of State Appellate Defender's Office, of Elgin, for appellant.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Matthew J. Schmidt, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice McLaren concurred in the judgment and opinion.
¶ 1 Defendant, Jarriet E. Brannon, appeals from his convictions of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2008)), and unlawful possession of cannabis (720 ILCS 550/4(d) (West 2008)). He contends that the trial court erred in denying his motion to suppress physical evidence. He further maintains that his trial counsel was ineffective for failing to move to suppress statements he made to the police both before and after he was given Miranda warnings. Because the trial court properly denied defendant's motion to suppress and because defendant's trial counsel was not ineffective for failing to seek suppression of his statements, we affirm.
¶ 2 I. BACKGROUND
¶ 3 The following facts are taken from the testimony at the hearing on defendant's motion to suppress physical evidence and at his bench trial. On February 23, 2009, at about 7:24 p.m., Officers Nick Gartner and Clark Johnson of the Aurora police department were patrolling in an unmarked squad car in a high-crime area known for its drug and gang activity. As they approached a retail food store located on North Avenue, Officer Gartner observed a vehicle, with its lights off, back out from the parking lot of the food store onto North Avenue. The vehicle then immediately pulled back into the lot of the food store and stopped. The officers observed two occupants in the vehicle, neither of whom was wearing a seat belt.
¶ 4 The officers followed the vehicle into the parking lot and pulled their squad car next to and somewhat behind the vehicle. Officer Gartner testified at the suppression hearing that he "believed" that they activated the emergency lights on the squad car. At the bench trial, he could not "recall 100 percent, " but he "believe[d] possibly" that the emergency lights were activated. Defendant, who testified at the suppression hearing that the officers were wearing blue jeans and black "shirts or something, " was never asked if the emergency lights were activated. According to the officers, they both were wearing blue jeans and black tactical vests with Aurora police insignia on the front and back.
¶ 5 As the officers stopped adjacent to the vehicle, defendant exited the vehicle from the front passenger seat and began walking away from the vehicle. Officer Johnson, who had exited the squad car, ordered defendant to stop and reenter the vehicle, but defendant continued walking away. Officer Gartner, who thought defendant was going to flee, quickly walked around the front of the vehicle and cut him off.
¶ 6 Officer Gartner believed that defendant posed a risk to the officers' safety, based on defendant's actions and the fact that the area was a "known gang and drug area." Thus, he frisked defendant, patting down his jacket. Officer Gartner, who was carrying a flashlight because of the limited lighting in the area, used the flashlight to look defendant over while patting him down.
¶ 7 During the frisk, Officer Gartner felt a soft bulge in defendant's upper front jacket pocket. After feeling the bulge, Officer Gartner observed with the aid of the flashlight a clear plastic bag containing a "green, leafy substance" in the partially open jacket pocket. He did not place his hand in the pocket or pull the bag out prior to observing the bag and its contents. Although defendant testified at the suppression hearing that the pocket was closed, the trial court found Officer Gartner's testimony more credible and specifically found that the bag and its contents were visible to Officer Gartner. Based on his prior training and police experience, Officer Gartner concluded that the substance in the plastic bag was cannabis.
¶ 8 At that point, Officer Gartner arrested and handcuffed defendant and handed him over to Officer Johnson, who discovered in defendant's pocket a folded white packet that contained an "off-white substance, powdery substance." Officer Gartner proceeded to look into the vehicle, where he observed on the front passenger seat a plastic bag that contained several foil packets. The foil packets contained a "powdery substance." Officer Gartner seized the foil packets, and their contents later tested positive for the presence of heroin.
¶ 9 After Officer Gartner discovered the foil packets and showed them to Officer Johnson. Officer Johnson asked defendant, "Are you going to continue to lie to us about what you are doing?" Defendant responded, "No ... it's my stuff." Neither officer had advised defendant of ...