People v. Nitz

863 N.E.2d 817

309 Ill.Dec. 185

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William J. NITZ, Defendant-Appellant.

No. 2-05-0704.

Appellate Court of Illinois, Second District.

February 16, 2007.

G. Joseph Weller, Thomas A. Lilien, Deputy Defenders, Office of the State Appellate Defender, Elgin, Clarke P. Devereux (all Court-appointed), Durkin & Roberts, Chicago, for William J. Nitz.

Louis A. Bianchi, McHenry County State's Attorney, Woodstock, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, L. Anita Richardson, Skokie, for the People.

Justice BYRNE delivered the opinion of the court:

Following a stipulated bench trial in the circuit court McHenry County, defendant, William J. Nitz, was found guilty of a single count each of unlawful possession of cannabis (720 ILCS 550/4(d) (West 2002)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 2002)) and was sentenced to a two-year term of probation. Prior to trial, defendant filed separate motions to quash his arrest and to suppress evidence. The trial court denied the motions. Defendant argues on appeal that he did not receive effective assistance of counsel, because his trial attorney failed to file a posttrial motion challenging those rulings. Defendant alternatively argues that the denial of his motions was plain error. We affirm.

Evidence presented at the hearing on defendant's motion to quash his arrest establishes that on February 18, 2003, Jennifer Spalla, a detective with the narcotics unit of the McHenry County sheriff's department, arrested an individual identified as "Confidential Informant 263" for unlawful possession and unlawful delivery of controlled substances. After he was arrested, the informant had a conversation with Detective Spalla in which Anton Cundiff, a sergeant with the McHenry County sheriff's department, and Ryan Sciame, a McHenry police officer, also participated. The informant was told that if he helped the police investigate drug activity, he might receive favorable treatment in his own prosecution. The informant indicated that he could obtain a pound of marijuana from defendant, and the officers asked the informant to contact defendant by telephone to set up the transaction.

The informant made a call on a cellular telephone provided by one of the officers. The officers were present and were able to hear the informant's side of the conversation. Sergeant Cundiff testified that the informant "said Billy, and he talked about having three ounces, and there was a possibility of getting another half pound but he didn't know for sure, and * * * he made arrangements to meet with him [at a convenience store] about 10:15 that night." After the telephone conversation, the informant related that he had spoken with defendant and made arrangements to pick up at least three ounces of marijuana at a convenience store in McHenry. The informant indicated that defendant would be driving a Buick Park Avenue.

Detective Spalla, Officer Sciame, Sergeant Cundiff, and other law enforcement officers proceeded to the convenience store where the transaction was to take place. One of the officers brought a police dog trained to detect the presence of narcotics. When the officers arrived at about 10:10 p.m., there was a gray Buick Park Avenue parked in the store's lot. Officer Sciame was able to read the Buick's license plate, and he determined that the vehicle was registered to defendant. Officer Sciame, who was driving an unmarked vehicle, drove up behind the Buick, blocking it from driving away, and then approached the driver's side of the vehicle. Defendant was in the vehicle, and he rolled down his window for Officer Sciame. When defendant did so, Officer Sciame noticed a "fresh cannabis smell." Officer Sciame testified that he was familiar with the odor of cannabis from his training and experience as a police officer. Officer Sciame asked defendant if his name was William Nitz, and defendant replied that it was. Officer Sciame asked defendant to step out of the vehicle. Shortly after defendant emerged from the vehicle, Officer Sciame placed him in handcuffs and frisked him for weapons. An officer walked the police dog around the Buick, and the dog indicated that there were drugs in the vehicle. The vehicle was then searched. The record reflects that approximately three ounces of marijuana were recovered from defendant's vehicle.

At the close of defendant's evidence, the trial court granted a motion by the State for a finding in its favor and denied defendant's motion to quash. Defendant then filed a separate motion to suppress evidence. However, at the hearing on the motion, the trial court indicated that it would not revisit the question of whether there was probable cause to arrest defendant. As with the motion to quash, the trial court granted a motion by the State at the close of defendant's evidence for a finding in its favor and denied the motion to suppress.

As noted, the matter proceeded to a stipulated bench trial. On April 15, 2005, based on the parties' stipulations, the trial court found defendant guilty. Defendant was sentenced on June 15, 2005. That same day, defendant's attorney was granted leave to withdraw. Defendant's attorney did not file a posttrial motion on defendant's behalf. Defendant filed a timely notice of appeal.

Defendant argues on appeal that his trial attorney's failure to file a posttrial motion challenging the rulings on his motions to quash his arrest and suppress evidence deprived him of his right to the effective assistance of counsel. According to defendant, counsel's failure to do so (1) deprived defendant of the opportunity to have the trial court reconsider its rulings; and (2) deprived him of the opportunity to have this court review the rulings, except, perhaps, under the plain error rule. Under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must show that his counsel's performance "fell below an objective standard of reasonableness" and that the deficient performance was prejudicial in that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698. Defendant contends that the denial of his motions to quash and suppress was erroneous and that there is a reasonable probability that he would have been acquitted or his conviction would have been reversed on fourth amendment grounds if counsel had filed a posttrial motion. The State responds that trial counsel's failure to file a posttrial motion did not forfeit appellate review of the rulings on the motions to quash and suppress. Therefore, according to the State, defendant has suffered no prejudice. The State is correct. Because the parties proceeded by way of a stipulated bench trial, defendant was not required to file a posttrial motion to preserve review of the rulings on the motions to quash his arrest and suppress evidence. People v. Cordero, 358 Ill.App.3d 121, 124-25, 294 Ill.Dec. 418, 830 N.E.2d 830 (2005). Thus, the fourth amendment issue underlying defendant's ineffective-assistance-of-counsel claim is properly before us in its own right, and we may address the merits of that issue directly, i.e., without regard to trial counsel's effectiveness.

A defendant moving to quash an arrest and suppress evidence must make a prima facie case that the police lacked probable cause to arrest. People v. Brexton, 343 Ill.App.3d 322, 326, 278 Ill.Dec. 264, 798 N.E.2d 111 (2003). "If a defendant makes a prima facie case, the State has the burden of going forward with evidence to counter the defendant's prima facie case." People v. Gipson, 203 Ill.2d 298, 307, 272 Ill.Dec. 1, 786 N.E.2d 540 (2003). Here, the trial court ruled in the State's favor at the close of defendant's evidence. Accordingly, this court must determine whether defendant made a prima facie case so as to shift the burden of going forward to the State. A ruling on a motion to quash an arrest and suppress evidence presents mixed questions of law and fact. People v. Lee, 214 Ill.2d 476, 483, 293 Ill.Dec. 267, 828 N.E.2d 237 (2005). The circuit court's findings of historical fact will be upheld on review unless they are against the manifest weight of the evidence, but "a reviewing court remains free to undertake its own assessment of the facts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted." Lee, 214 Ill.2d at 484, 293 Ill.Dec. 267, 828 N.E.2d 237. The ultimate question of whether to quash and suppress is reviewed de novo. Lee, 214 Ill.2d at 484, 293 Ill. Dec. 267, 828 N.E.2d 237.

The first step in our analysis is to determine when defendant was seized within the meaning of the fourth amendment. For fourth amendment purposes, a person is seized when an officer, "`by means of physical force or show of authority,'" restrains a citizen's liberty. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991), quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889, 905 n. 16 (1968). We believe that a fourth amendment seizure occurred when Officer Sciame pulled his unmarked squad car behind defendant's parked vehicle, thereby physically preventing the vehicle from moving and, as a result, preventing defendant from leaving the area without abandoning his vehicle. Cf. People v. Beverly, 364 Ill.App.3d 361, 369-71, 301 Ill.Dec. 97, 845 N.E.2d 962 (2006) (defendant was seized when uniformed officer positioned marked squad car to block the exit of defendant's vehicle).

We next consider whether that seizure was constitutionally reasonable. In Terry, the United States Supreme Court held that the public interest in...