People v. McClendon

• Docket Number: s. 1-16-3406 & 1-19-0886 (consolidated)
• Decision Date: 07 March 2022
• Citation: 2022 IL App (1st) 163406,205 N.E.3d 853,461 Ill.Dec. 765
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sean MCCLENDON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2022 IL App (1st) 163406
205 N.E.3d 853
461 Ill.Dec. 765

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Sean MCCLENDON, Defendant-Appellant.

Nos. 1-16-3406 & 1-19-0886 (consolidated)

Appellate Court of Illinois, First District, First Division.

Filed March 07, 2022
Rehearing denied April 22, 2022

James E. Chadd, Douglas R. Hoff, and Kelly Anne Burden, of State Appellate Defender's Office, of Ottawa, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak and Jon Walters, Assistant State's Attorneys, of counsel), for the People.

JUSTICE WALKER delivered the judgment of the court, with opinion.

461 Ill.Dec. 767

¶ 1 A jury found Sean McClendon guilty of violating the armed habitual criminal provision of the Criminal Code of 2012 (Code) ( 720 ILCS 5/24-1.7 (West 2014) ). McClendon contends his attorney provided ineffective assistance by failing to argue that police obtained the evidence against him as a result of an illegal seizure. We hold that McClendon abandoned the gun in response to an illegal seizure, and therefore, if his attorney had argued the issue, the trial court should have suppressed the gun and other evidence against McClendon. We reverse the conviction and vacate the sentence.

205 N.E.3d 856

461 Ill.Dec. 768

¶ 2 I. BACKGROUND

¶ 3 Around 11 p.m. on October 10, 2014, a police officer reported hearing gunfire in the vicinity of 99th Street and Hoxie Avenue. The reporting officer gave no description of the shooter and did not say whether the shooting involved a car. Officers Bryant McDermott and Robert McHale, on patrol wearing plainclothes in an unmarked car, drove to the area. At 99th Street and Yates Avenue, about four blocks from Hoxie Avenue, the officers noticed a black Nissan backing into a driveway. As their unmarked car passed the driveway, the driver and the passenger in the Nissan ducked down in their seats. The officers left their car to approach the Nissan, but the Nissan drove off onto Yates Avenue, with Poe as the driver and McClendon as a passenger. The officers lost track of the Nissan when it turned on 95th Street, but a police helicopter located it and followed. The police dispatcher asked the officers why they were following the Nissan. Eventually, the officers answered they followed the Nissan because they saw the car at "a house known for shooting." However, the officers admitted that the Nissan and those in the car were "probably not" involved with the shooting on Hoxie Avenue.

¶ 4 The officer in the helicopter followed the Nissan to 78th Street and South Shore Drive, where Officer Milot Cadichon and his partner, directed by helicopter, caught up with the Nissan in a parking lot. Cadichon and his partner pointed their guns at the two men they saw on a nearby porch, ordered them not to move, and took them into custody. The two men on the porch were McClendon and Emmanuel Poe. A few minutes later, an officer reported finding a gun on the porch. Prosecutors charged McClendon with violating the armed habitual criminal section of the Code.

¶ 5 McClendon's attorney filed a motion to suppress evidence of the gun found on the porch. At the hearing, Cadichon testified that he pulled into the parking lot right behind the Nissan and saw Poe exit from the driver's side while McClendon came from the passenger side of the Nissan. McClendon and Poe ran to the porch, where McClendon dropped an object. Another officer picked up the object, a gun, from behind the couch on the porch. The court denied the motion to suppress, finding that McClendon had no standing to object to the search of the porch.

¶ 6 At trial, after the jury saw the video recording taken from the helicopter, Cadichon amended his testimony considerably. He admitted that by the time his car entered the parking lot, no one remained in the Nissan. McClendon and Poe already stood on the porch, apparently trying to enter the building. Cadichon saw no one in the parking lot other than McClendon, Poe, and the numerous officers arriving in response to McDermott's report. Although McDermott said McClendon and Poe were probably not involved in the shooting on Hoxie Avenue, Cadichon still relied on the report of that shooting as grounds for pointing his gun at McClendon and Poe and ordering them to stop. According to Cadichon, McClendon moved "[m]aybe one or two feet at the most," pulled out a metal object, and dropped it behind the couch. Cadichon heard a "clink" as the object hit the wooden porch. Cadichon directed another officer to the spot and that officer retrieved the gun. No officer tested McClendon's hands or clothes or Poe's hands or clothes for gunshot residue. No officer checked the gun for fingerprints.

¶ 7 McDermott recounted the encounter at 99th Street and Yates Avenue, including his decision to approach McClendon and Poe because they ducked down in their seats when the unmarked car rolled slowly

205 N.E.3d 857

461 Ill.Dec. 769

past the driveway where they parked. McDermott testified that he interviewed McClendon at the police station around 11:45 p.m. on October 10, 2014. According to McDermott, McClendon readily admitted he had the gun, adding "There are a lot of mother f***" after him.

¶ 8 Poe testified he drove McClendon to 99th Street and Yates Avenue to his friend's home. After he parked in the driveway, he saw a car pull up on the street. Two men hopped out of the car and rushed at his car. Poe drove off fast. He could not tell whether the approaching men were police, but he had a suspended license, so he thought it best to leave fast. He drove back to 78th Street and South Shore Drive to rejoin a party he and McClendon had attended. He and McClendon rang the doorbell before police came and arrested them. Neither of them had a gun, and neither of them dropped anything on the porch.

¶ 9 McClendon corroborated Poe's account. They both stopped when police said, "Freeze." They faced police and put out their hands for cuffs. Neither McClendon nor Poe had a gun, and neither dropped anything on the porch. McClendon did not say to any officer that he had a gun or that anyone was out to get him.

¶ 10 The parties stipulated that McClendon had two prior felonies that would make his possession of a firearm a violation of the armed habitual criminal section of the Code. The jury found him guilty. The court denied his posttrial motion and sentenced him to eight years in prison. McClendon filed a timely appeal.

¶ 11 Before this court addressed the appeal, McClendon filed a postconviction petition, arguing primarily that he received ineffective assistance of counsel. The trial court dismissed the postconviction petition at the first stage of postconviction proceedings. McClendon appeals the dismissal of his postconviction petition. We consolidated the direct appeal of the conviction with the appeal from dismissal of the postconviction petition.

¶ 12 II. ANALYSIS

¶ 13 On appeal, McClendon argues that his trial counsel provided ineffective assistance by failing to argue that the gun and any statements about the gun constituted fruits of an illegal seizure. He also contends the evidence does not support a finding beyond a reasonable doubt that he possessed the gun.

¶ 14 For the appeal from the dismissal of his postconviction petition, McClendon need only show that he has stated the gist of a claim that his attorney's acts deprived McClendon of his right to effective assistance of counsel. People v. Edwards , 197 Ill. 2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). We review de novo the dismissal of the petition without an evidentiary hearing. Id. at 247, 258 Ill.Dec. 753, 757 N.E.2d 442. For the direct appeal, McClendon must show "the unargued suppression motion is meritorious, and that a reasonable probability exists that the trial outcome would have been different had the evidence been suppressed." People v. Henderson , 2013 IL 114040, ¶ 15, 370 Ill.Dec. 804, 989 N.E.2d 192.

¶ 15 The trial court denied the motion to suppress based on its finding that McClendon had no standing to object to the search of the porch. However, the location of a search incident to an unlawful seizure makes no difference. The trial court should suppress all evidence obtained as a result of any violation of the fourth amendment to the United States Constitution, including an illegal seizure. U.S. Const., amend. IV ;

205 N.E.3d 858

461 Ill.Dec. 770

People v. Burns , 2016 IL 118973, ¶ 47, 401 Ill.Dec. 468, 50 N.E.3d 610 ; People v. Townes , 91 Ill. 2d 32, 39, 61 Ill.Dec. 614, 435 N.E.2d 103 (1982).

¶ 16 The fourth amendment forbids unreasonable searches and seizures. People v. Gherna , 203 Ill. 2d 165, 176, 271 Ill.Dec. 245, 784 N.E.2d 799 (2003). "A person has been seized within the meaning of the fourth amendment only when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave." People v. Thomas , 198 Ill. 2d 103, 111, 259 Ill.Dec. 838, 759 N.E.2d 899 (2001). To determine whether a seizure...