People v. Byrd
| Decision Date | 20 April 2011 |
| Docket Number | No. 1–09–0292.,1–09–0292. |
| Citation | 951 N.E.2d 194,351 Ill.Dec. 374,408 Ill.App.3d 71 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Terry BYRD, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
408 Ill.App.3d 71
951 N.E.2d 194
351 Ill.Dec. 374
The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Terry BYRD, Defendant–Appellant.
No. 1–09–0292.
Appellate Court of Illinois, First District, Sixth Division.
March 25, 2011.Rehearing Denied April 20, 2011.
[951 N.E.2d 195]
Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Alan D. Goldberg, Deputy Defenders, Jonathan Krieger, Assistant Appellate Defender, Office of the State Appellate Defender, for Defendant–Appellant.Anita Alvarez, State's Attorney (Alan J. Spellberg, Veronica Calderon Malavia, Kathryn A. Schierl, Assistant State's Attorneys, of counsel), for Plaintiff–Appellee.
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
[351 Ill.Dec. 376 , 951 N.E.2d 196]
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. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (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, 335 Ill.Dec. 208, 918 N.E.2d 553 (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.
[408 Ill.App.3d 73] 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
[351 Ill.Dec. 377 , 951 N.E.2d 197]
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[408 Ill.App.3d 74] ” 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.
[951 N.E.2d 198 , 351 Ill.Dec. 378]
[408 Ill.App.3d 75] 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.”
“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, 335 Ill.Dec. 208, 918 N.E.2d 553.
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...
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