People v. Little, 1-99-3776.

CourtUnited States Appellate Court of Illinois
Citation322 Ill. App.3d 607,750 N.E.2d 745,255 Ill.Dec. 828
Docket NumberNo. 1-99-3776.,1-99-3776.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James LITTLE, Defendant-Appellant.
Decision Date16 May 2001

750 N.E.2d 745
322 Ill.
App.3d 607
255 Ill.Dec.
828

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
James LITTLE, Defendant-Appellant

No. 1-99-3776.

Appellate Court of Illinois, First District, Third Division.

May 16, 2001.

Rehearing Denied May 14, 2001.


750 N.E.2d 749
(Michael Pelletier, Deputy Defender, Linda Olthoff, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, of counsel), for Appellant

Richard A. Devine, State's Attorney (Renee Goldfarb, Carol L. Gaines, Owen D. Kalt, of counsel), Chicago, for Appellee.

Justice CERDA delivered the opinion of the court:

Defendant, James Little, was charged in a two count indictment with possession of a controlled substance (cocaine) with intent to deliver (720 ILCS 570/401(c)(2) (West 1998)), and possession of a controlled substance (cocaine) with intent to deliver while within 1,000 feet of property comprising a public park (720 ILCS 570/401(c)(2), 407(b)(1) (West 1998)). Following a bench trial in May 1999, defendant was acquitted of the latter charge but found guilty of possession with intent to deliver. Finding that defendant qualified for an enhanced sentence under section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 1998)) based on the existence of prior convictions, the court sentenced defendant to a term of seven years' imprisonment. Defendant appeals, arguing (1) his trial counsel was ineffective for failing to pursue a pre-trial motion to quash his arrest and suppress evidence; (2) the State's evidence is insufficient to sustain conviction for possession with intent to deliver; and (3) the mandatory sentencing scheme set forth in section 5-5-3(c)(8) of the Corrections Code is invalid pursuant to the recent United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because we agree with defendant's ineffective assistance claim, we reverse and remand for further proceedings.

The benchmark inquiry in addressing a claim of ineffective assistance of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984). A defendant claiming ineffective assistance of counsel must typically show that (1) counsel made errors so serious, and his performance was so deficient, that he was not functioning as the "counsel" guaranteed by the sixth amendment of the federal constitution, and (2) these deficiencies so prejudiced the defendant as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

Under the first prong of the Strickland inquiry, the defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Here, deference is paid to counsel's challenged action and the court, without engaging in hindsight, must presume that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104

750 N.E.2d 750
S.Ct. at 2065, 80 L.Ed.2d at 694. Indeed, it is incumbent upon the defendant to overcome the strong presumption that the challenged action of counsel was the product of sound trial strategy and not the result of incompetence. People v. Harris, 129 Ill.2d 123, 156, 135 Ill.Dec. 861, 544 N.E.2d 357, 371 (1989)

In addition to establishing that counsel's conduct fell below an objective standard of reasonableness, the defendant must show he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Proof of prejudice requires an affirmative showing of a "reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In the present case, defendant maintains his attorney's failure to pursue a motion to quash arrest and suppress the cocaine recovered by the officers amounted to ineffective assistance of counsel. The law is well-settled that the decision whether to file a motion to quash arrest and suppress evidence does not represent per se incompetence. People v. Rodriguez, 312 Ill.App.3d 920, 925, 245 Ill.Dec. 613, 728 N.E.2d 695, 702 (2000); People v. Robinson, 299 Ill.App.3d 426, 433, 233 Ill.Dec. 588, 701 N.E.2d 231, 238 (1998). The decision is traditionally viewed as one of trial strategy, and counsel benefits from a strong presumption that his failure to challenge the validity of the accused's arrest or to seek the exclusion of certain evidence was proper. Rodriguez, 312 Ill.App.3d at 925, 245 Ill.Dec. 613, 728 N.E.2d at 702; Robinson, 299 Ill.App.3d at 433, 233 Ill. Dec. 588, 701 N.E.2d at 238. To overcome these presumptions and prevail on a claim of ineffectiveness based on counsel's failure to file a motion to quash and suppress, the defendant must show, first, a reasonable probability that the motion would have been granted and, second, that the outcome of the trial would have been different if the motion had been granted. Rodriguez, 312 Ill.App.3d at 925, 245 Ill. Dec. 613, 728 N.E.2d at 702; Robinson, 299 Ill.App.3d at 435, 233 Ill.Dec. 588, 701 N.E.2d at 238.

The evidentiary record establishes that at about 12:45 a.m. on April 15, 1999, Stanley Snarskis, then a police officer with the Chicago police department, and his partner, John Chibe, were conducting narcotics surveillance in the area of 742 South California Avenue in Chicago. At that time, Snarskis noticed defendant standing approximately 60 feet away, near the street. Snarskis stated he observed, on separate occasions, two unidentified persons approach defendant and give defendant money. Each time, defendant accepted the money, placed it in one of his pants pockets, and retrieved an "object" from another pocket. Defendant gave the "object" to the unidentified person from whom he received the money and the person then walked away. Based on his vast experience conducting narcotic surveillance, Snarskis suspected that defendant had been involved in two narcotic transactions. Notably, Snarskis neither identified nor described the "object" that was handed by defendant to either of the unknown persons.

Following his observation of the second incident, Snarskis radioed Chibe, who was nearby in a police vehicle. Chibe picked up Snarskis and they approached defendant. Snarskis detained defendant while Chibe searched defendant's pockets and recovered six separate small bags containing 1.5 grams of cocaine. Defendant was ultimately arrested and transported to the police station.

750 N.E.2d 751
As defendant asserts, the record clearly reveals that defendant's warrantless arrest proceeded the officers' search of his person. The fourth amendment of our federal constitution protects individuals from unreasonable searches and seizures. U.S. Const. amend. IV. A search incident to an arrest is one intrusion that has been deemed reasonable under the fourth amendment. People v. Kolichman, 218 Ill.App.3d 132, 139, 161 Ill. Dec. 211, 578 N.E.2d 569, 574 (1991), citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). While "[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification" (Sibron v. State of New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917, 934-35 (1968)), the law is well settled that a search may be conducted immediately prior to arrest and need not take place subsequent thereto as long as probable cause for the arrest exists at the time of the search. Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 2564 & n. 6, 65 L.Ed.2d 633, 645-46 & n. 6 (1980); People v. Boyd, 298 Ill.App.3d 1118, 1125, 233 Ill.Dec. 139, 700 N.E.2d 444, 449 (1998); Kolichman, 218 Ill.App.3d at 139-40, 161 Ill.Dec. 211, 578 N.E.2d at 574-75 (1991); People v. Rossi, 102 Ill.App.3d 1069, 1073, 58 Ill.Dec. 291, 430 N.E.2d 233, 236 (1981); see also People v. Tyler, 210 Ill.App.3d 833, 839-40, 155 Ill.Dec. 240, 569 N.E.2d 240, 245 (1991) ("[t]here are instances where probable cause exists for arrest, and where a search and arrest are practically simultaneous, it may be immaterial that the search preceded the arrest")

Probable cause exists where the facts and circumstances known to the officers at the time of the arrest are sufficient to warrant a person of reasonable prudence and caution to believe that an offense has been committed and that the offense was committed by the person arrested. People v. Sims, 192 Ill.2d 592, 614, 249 Ill.Dec. 610, 736 N.E.2d 1048, 1060 (2000); People v. Hardaway, 307 Ill. App.3d 592, 603, 241 Ill.Dec. 111, 718 N.E.2d 682, 691 (1999). This inquiry rests primarily on the facts and information known to the arresting officers at the time the search and arrest are made. People v. O'Neal, 176 Ill.App.3d 823, 827-28, 126 Ill.Dec. 240, 531 N.E.2d 867, 870 (1988). While probable cause does not require the degree of proof necessary to support a conviction and, in fact, need not even have to rise to a probability that the suspected individual has committed a crime, more than a mere suspicion or hunch of criminal activity is required. Sims, 192 Ill.2d at 614-15, 249 Ill.Dec. 610, 736 N.E.2d at 1060; People v. Kidd, 175 Ill.2d 1, 22, 221 Ill.Dec. 486, 675 N.E.2d 910, 921 (1996); see also People v. Elliot, 314 Ill.App.3d 187, 191, 247 Ill.Dec. 314, 732 N.E.2d 30, 35 (2000) (noting that a mere hunch does not provide probable cause to search a suspect for illicit drugs).

Whether sufficient probable cause exists is a case-specific analysis and must be determined by an examination of the totality of circumstances. Sims, 192 Ill.2d at 615, 249 Ill.Dec. 610, 736 N.E.2d at 1060; People v....

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