2020 IL App (3d) 170103
Ill. App. Ct.2020Background
- Police conducted surveillance and stopped a vehicle driven by John Montgomery on a traffic violation; Bobby L. Burns III was the front-seat passenger.
- Two officers (Leach and Westart), trained in detecting controlled substances, separately smelled a strong odor of cannabis from the vehicle and observed furtive movements by Burns.
- Officers asked Burns to exit; while he walked to the rear of the car they observed the grip/handle of a handgun in his rear pants pocket, detained and handcuffed him, and then recovered the pistol plus small bags of cocaine and a pill bottle.
- Burns moved to suppress all evidence; the trial court denied the motion after two hearings. Burns then proceeded to a stipulated bench trial in which defense counsel stipulated to the State’s evidence and to the sufficiency of that evidence; the court found Burns guilty.
- The court sentenced Burns to the 15-year mandatory minimum for armed violence to be served at 85% (trial judge expressed discomfort with the mandatory term). On appeal Burns challenged suppression, ineffective assistance, Rule 402 compliance for the stipulation, an as-applied Eighth Amendment challenge, and the 85% truth-in-sentencing order.
- The appellate court affirmed conviction and most rulings but reversed the 85% order, holding Burns eligible for day-for-day (50%) credit and remanded for correction of the mittimus.
Issues
| Issue | State's Argument | Burns' Argument | Held |
|---|---|---|---|
| Did the odor of cannabis (raw or burned) and attendant facts provide probable cause to search the passenger (Burns)? | Trained officers smelled cannabis from both sides of the vehicle; coupled with Burns’ furtive movements this particularized the odor to him and gave probable cause to search his person. | Odor of raw (unburnt) cannabis does not support probable cause to search a passenger; no individualized probable cause to search Burns. | Affirmed: odor of cannabis (raw or burnt) plus furtive movements sufficed to particularize probable cause to Burns. |
| Did handcuffing Burns convert a Terry stop into an unlawful arrest or require officers to ask about a permit before restraining him? | Officers reasonably secured Burns after seeing a handgun grip; handcuffing was justified for officer safety and did not require inquiry about lawful possession first. | Handcuffs transformed the stop into an arrest and evidence obtained after should be suppressed; officers should have asked about a permit before restraining him. | Affirmed: handcuffing was reasonable and did not unlawfully convert the stop into an arrest; officers need not delay securing a potentially armed person. |
| Was defense counsel ineffective for not raising additional suppression arguments? | The appellate suppression arguments lack merit, so any failure to raise them was not prejudicial. | Trial counsel failed to pursue a viable suppression strategy and thus provided deficient performance. | Denied: no ineffective assistance because the suppression arguments on appeal are meritless and would have been futile. |
| Was the stipulated bench trial tantamount to a guilty plea requiring strict Rule 402(a) admonitions, and did the court comply? | The stipulation did not amount to a plea or, alternatively, the court substantially complied with Rule 402(a). | Counsel’s stipulation to sufficiency equated to a guilty plea and the court failed to give required admonitions under Rule 402(a). | Court found the stipulation tantamount to a guilty plea but held the trial court substantially complied with Rule 402(a); no reversible error. |
| Did the trial court err by ordering Burns to serve 85% of the sentence (truth-in-sentencing) when no great-bodily-harm finding was made? | State conceded error on the sentencing-credit point. | The 85% order was improper; Burns was eligible for day-for-day (50%) credit absent a great-bodily-harm finding. | Reversed as to the 85% order: Burns is eligible for release after serving 50% (subject to prison conduct); remanded to modify mittimus and effectuate timely release. |
Key Cases Cited
- People v. Stout, 106 Ill.2d 77 (1985) (odor of cannabis from vehicle can supply probable cause to search)
- Terry v. Ohio, 392 U.S. 1 (1968) (officer safety justifies limited seizure and frisk under Terry)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- People v. Colyar, 2013 IL 111835 (2013) (handcuffing during Terry stop may be reasonable under totality of circumstances)
- People v. Clendenin, 238 Ill.2d 302 (2010) (when a stipulation concedes sufficiency, it can be tantamount to a guilty plea)
- People v. Sutherland, 223 Ill.2d 187 (2006) (explaining the inevitable discovery exception)
- People v. LeFlore, 2015 IL 116799 (2015) (good-faith exception to exclusionary rule applies where officers reasonably believe conduct lawful)
- People v. Bingham, 2018 IL 122008 (2018) (as-applied constitutional challenges require a developed record and factual findings)