People v. Stewart

• Decision Date: 06 August 1991
• Docket Number: No. 3-90-0597,3-90-0597
• Citation: 217 Ill.App.3d 373,577 N.E.2d 175,160 Ill.Dec. 299
• Parties: , 160 Ill.Dec. 299 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul STEWART, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 175

577 N.E.2d 175

217 Ill.App.3d 373, 160 Ill.Dec. 299

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul STEWART, Defendant-Appellant.

No. 3-90-0597.

Appellate Court of Illinois Third District.

Aug. 6, 1991.

Kenneth D. Brown, Office of State Appellate Defender, Ottawa, Steven Prodehl, Joliet, for Paul Stewart.

Jay P. Hoffmann, State's Attys. Appellate Prosecutor, Ottawa, Edward Burmila, Jr., Will County State's Atty., Joliet, for the People.

Justice BARRY delivered the opinion of the Court.

The defendant, Paul Stewart, appeals his conviction for unlawful possession of a controlled substance (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1402). We reverse and remand.

At trial, Joliet police officer Jeff Stubler testified that on June 21, 1989, around 4:30 p.m., he was patrolling North Broadway Street with his partner, James Klancher. As they drove north, he saw two black males conversing on the sidewalk. When they were within 50 to 75 feet of the men, one male handed something to the other. Stubler could not see what was exchanged, or who handed what to whom. Afterwards, the defendant placed his right hand in his front pants pocket. Stubler testified that about 50 times previously he had seen similar transactions that led to arrests for unlawful delivery of a controlled substance.

As the officers approached in their squad car, the two men ran into the lobby of a nearby building. After the officers drove around the block to the back of the building, Klancher got out of the car and entered the building's rear entrance. Stubler then drove back onto Broadway Street, where he saw the two men again standing in front of the building.

Stubler parked near the men and began getting out of the car. The defendant ran into the building, while the other man ran down the street. Stubler chased the other man but was unable to catch him.

Officer Klancher testified that when the defendant ran into the lobby, he tackled him, placed him under arrest, and handcuffed him. In the course of searching him, he found 17 bags containing a white powdery substance.

Officer Klancher's other testimony generally corroborated Officer Stubler's description of the events leading up to the arrest. In addition, he noted that the area of the arrest was known for having many drug transactions. He further stated that it was not uncommon for people in that area to flee when police officers approached.

The parties stipulated that if a forensic scientist were called to testify, he would state that the bags contained 6.0 grams of a substance containing cocaine.

The defendant presented no evidence. Following arguments, the court found him guilty of unlawful possession of a controlled substance.

The trial court later sentenced the defendant to a five-year term of imprisonment. It granted him 147 days of credit against his sentence for his pre-trial incarceration from June 21, 1989, to September 17, 1989, and from June 18, 1990, to August 17, 1990.

On appeal, the defendant argues that his counsel was ineffective because he failed to move to suppress the cocaine. He contends that if counsel had done so, the evidence would have been suppressed because the arrest was not supported by probable cause.

Defense counsel is ineffective where his performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for his performance, the result would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.) A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. (Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.) The reasonableness of counsel's actions must be determined in light of the totality of the circumstances. People v. Atkins (1987), 161 Ill.App.3d 600, 113 Ill.Dec. 463, 515 N.E.2d 272.

Since the instant defendant was clearly under arrest when he was apprehended in the lobby, at that time the officer had to have probable cause. (People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57.) Probable cause exists where the facts within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution to believe that the person arrested has committed an offense. People v. Lippert (1982), 89 Ill.2d 171, 59 Ill.Dec. 819, 432 N.E.2d 605.

Here, the question of probable cause was a close one. The officers conceded that they did not see what was transferred between the defendant and the other man. Consequently, they could not be certain that an innocent transaction had not occurred. Moreover, the defendant's attempts to evade the officers, while probative, did not conclusively establish probable cause. See People v. Batista (1989), 156 A.D.2d 455, 548 N.Y.S.2d 749.

The failure to move to suppress does not appear to have been a matter of trial strategy. The defendant would not have had to...