Where a police stop of a car was not legally justified but defendant backseat passenger exited the vehicle and fled, dropping a gun, a motion to suppress it would not have been granted at his trial for aggravated unlawful use of a weapon and counsel was not ineffective in failing to make it—fruit-of-the-poisonous-tree claim precluded by break in the chain of causation.
Appeal from the Appellate Court for the First District; heard in that court Review on appeal from the Circuit Court of Cook County, the Hon. Stanley J. Sacks, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appeal Defender, and Brian E. Koch, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, and Jon Terry, law student, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins and Yvette Loizon, Assistant State's Attorneys, of counsel), for the People.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.
¶ 1 Following a bench trial in the circuit court of Cook County, defendant Carl Henderson was found guilty of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) and sentenced to eight years' imprisonment. On appeal, defendant argued that his trial counsel rendered ineffective assistance by failing to file a motion to suppress the weapon. The appellate court rejected defendant's argument, and affirmed the judgment of the circuit court. 2012 IL App (1st) 101494. For the reasons that follow, we affirm.
¶ 2 BACKGROUND
¶ 3 The following evidence was adduced at defendant's trial. On September 8, 2009, Officers Robert Staken and Matthew Brophy were on routine patrol in a marked squad car in the area of Central Park and Adams Street in Chicago. Brophy was driving. At about 1:30 a.m., an individual flagged them down. Both officers described this individual as a black male in his 20s. The officers did not ask his name. He was, according to Staken, an "anonymous citizen." Brophy recalled that the man was of average height, meaning 5 feet 10 inches tall. Staken did not recall what the man was wearing, whether he had facial hair, or how tall he was. The man advised the officers of a "possible gun" in a tan, four-door Lincoln. Staken testified that the man also identified the number of persons in the Lincoln, but Staken was not asked, and he did not volunteer, that number. Shortly after this conversation, the officers observed a tan four-door Lincoln traveling eastbound on Madison Street. They activated their squad car lights and "curbed" the vehicle. The officers did not observe the driver commit any traffic violations. The driver immediately exited the Lincoln and began walking toward the officers, who had exited their squad car. The officers ordered the driver back to his vehicle, after which they placed him in handcuffs.
¶ 4 The officers next ordered the front seat passenger out of the vehicle. The passenger complied. After conducting a pat-down search for weapons, the officers placed the passenger in handcuffs and brought him to the rear of the Lincoln. While Brophy watched the driver and the front seat passenger, Staken ordered the backseat passenger, defendant, out of the vehicle. Defendant told Staken that the door on the passenger side did not open, so Staken ordered him to get out on the driver's side. Defendant complied. Brophy walked defendant over to Staken, at which point, according to Staken, defendant "took off running" and "dropped a weapon onto the ground." Staken thought the weapon, a handgun, came from defendant's waistband. Staken never saw the gun in defendant's hand.
¶ 5 Staken told Brophy, who was handling the driver and front seat passenger, that a handgun was on the ground. Staken then pursued defendant in the squad car as defendant ran eastbound on Madison Street. After defendant fell to the ground, Staken arrested him. When Staken returned with defendant to the place where the Lincoln was parked, Brophy advised Staken that he had recovered the weapon, a .22-caliber handgun loaded with four bullets. Brophy testified that the gun was found about two feet from the Lincoln.
¶ 6 Defendant did not testify and did not call any witnesses.
¶ 7 The trial court found defendant guilty of aggravated unlawful use of a weapon. During the court's oral ruling, the trial judge observed that a motion to suppress the gun "would not have [had] any chance of success." The court elaborated:
"If [defendant] would have stayed there for the search, I think there would have been a basis for [a] motion to suppress as to [defendant]; that all the police know at that point was that someone stopped [them] or flagged [them] down, whatever that was, said there might possibly be a gun in that car. That would be dubious at best about probable cause to stop that car and search the guys in the car.
If defendant would have stayed there for the search, he would have been a lot better off than running off. But by running off and leaving the gun behind, and I believe he did drop the gun as he was running off, the gun becomes abandoned and there's no basis for a motion to suppress under those circumstances. If he would have stayed for the search, I think a motion [to suppress] would have been appropriate to file under those circumstances. But since he didn't stay for the search, he did not submit to police authority, therefore, there's no basis for a motion to suppress evidence as far as [defendant] is concerned."
The trial court subsequently sentenced defendant to eight years' imprisonment.
¶ 8 Defendant appealed, arguing that his trial counsel was ineffective because she failed to file a motion to suppress the gun. Defendant maintained that the officers' initial seizure of the Lincoln was illegal and that the recovery of the gun was the fruit of that illegal seizure. The appellate court agreed with defendant that the initial seizure 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)." 2012 IL App (1st) 101494, ¶ 9. The appellate court, however, agreed with the State that defendant was not seized within the meaning of the fourth amendment at the time he dropped the gun and, thus, the gun could not be the fruit of an illegal seizure. Id. ¶¶ 12, 27. The appellate court concluded that because any motion to suppress would not have succeeded, defendant's trial counsel was not ineffective by failing to file such a motion. Id. ¶ 28.
¶ 9 We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. ...