2021 IL App (4th) 180819
Ill. App. Ct.2021Background
- In Feb 2017 Rowell was charged with identity theft, possession of incomplete card, and altered/counterfeited card after police found multiple cards, blank cards, a card-engraving template, and notes with names/SSNs in his vehicle.
- Trooper Price stopped Rowell for driving 115 mph in a 70 mph zone, arrested him for speeding, and testified he smelled cannabis coming from the vehicle.
- After the arrest and arrival of two other officers, they searched the vehicle (front-seat green bag, rear black bag, and trunk) and recovered the items used to charge Rowell; no cannabis or other drugs were found.
- Rowell testified the items belonged to a deceased friend; a stipulated SSN belonged to another person. A bench trial convicted Rowell on all counts; he received concurrent prison terms.
- On appeal Rowell argued only ineffective assistance of counsel for failing to move to suppress the vehicle evidence, asserting (1) the cannabis odor did not justify the search and (2) the trunk/bag searches exceeded scope.
- The appellate court affirmed, concluding suppression would have been meritless under then-applicable law and that the record did not show counsel’s failure was deficient.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Rowell) | Held |
|---|---|---|---|
| 1) Was counsel ineffective for not moving to suppress search based on smell of cannabis? | At the time, Illinois precedent allowed odor of cannabis alone to establish probable cause; a suppression motion would be meritless. | Odor of cannabis (given changes in cannabis law) did not justify a search. | Held: No ineffective assistance; motion would have been meritless under controlling law (Stout/Hill). |
| 2) Did the search exceed its scope by searching trunk and bags? | If probable cause existed for vehicle, officers could search containers and trunk; Ross governs scope. | Even if vehicle search was justified, searching bags and trunk exceeded the scope. | Held: Search of bags and trunk was lawful when probable cause existed. |
| 3) Can ineffective-assistance claim based on no suppression motion be resolved on direct appeal? | Direct-appeal record is often insufficient; counsel may have had strategic reasons or additional facts in reports. | Counsel’s failure to file was deficient and prejudicial. | Held: Record insufficient to demonstrate deficient performance on direct appeal; counsel not shown to have erred. |
| 4) Would inevitable discovery or inventory exception have allowed admission even if search improper? | Evidence likely would have been recovered via towing/inventory after arrest; inevitable discovery applies. | Suppression required because search was unlawful. | Held: Court noted likely applicability of inevitable discovery/inventory, further undermining a suppression claim. |
Key Cases Cited
- United States v. Ross, 456 U.S. 798 (1982) (scope of warrantless automobile search equals scope of search authorized by a warrant supported by probable cause)
- Texas v. Brown, 460 U.S. 730 (1983) (probable cause requires reasonable probability items are contraband or evidence)
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warning/Miranda rule)
- Massaro v. United States, 538 U.S. 500 (2003) (ineffective-assistance claims are often more appropriate for collateral review)
- People v. Stout, 106 Ill. 2d 77 (1985) (odor of burnt cannabis alone can provide probable cause to search a vehicle)
- People v. Hill, 2020 IL 124595 (2020) (Illinois Supreme Court declined to overrule Stout; Stout remained binding at time of the search)
- People v. Bew, 228 Ill. 2d 122 (2008) (discusses limits of reviewing ineffective-assistance claims on direct appeal)