People v. White

Docket No. 99935.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
BOBBY
WHITE, Appellant.

Opinion filed April 20, 2006.

JUSTICE GARMAN delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, McMorrow
and Karmeier concurred in the judgment and opinion.
Justice Fitzgerald dissented, with opinion, joined by Justice
Kilbride.

OPINION
 Following a jury trial in the circuit court of Champaign
County, defendant Bobby White was convicted of unlawful
possession with intent to deliver one gram or more, but less
than 15 grams, of a substance containing cocaine, while on
real property owned and operated by the Champaign County
Housing Authority (Housing Authority) (720 ILCS 570/407(b)(1)
(West 2002)). He was sentenced to 15 years= imprisonment.
The appellate court affirmed (No. 4B03B0369 (unpublished
order under Supreme Court Rule 23)) and defendant filed a
petition for leave to appeal (177 Ill. 2d R. 315).

BACKGROUND
Defendant was initially charged by information in October
2002, with one count of unlawful possession with intent to
deliver one gram or more, but less than 15 grams, of a
substance containing cocaine (720 ILCS 570/401(c)(2) (West
2000)). Shortly thereafter, an indictment issued, charging
defendant with the same offense. At defendant=s arraignment,
he waived a preliminary hearing, entered a plea of not guilty,
and requested a jury trial. Several months later, on the day trial
was to begin and after plea negotiations failed, the prosecutor
filed an information containing a Acount two.@ That count
alleged the same offense as the indictment, with the addition of
the allegation that defendant committed the offense while on
property owned and operated by the Housing Authority. While
the offense charged in the indictment was a Class 1 felony
(720 ILCS 570/401(c) (West 2000)), the offense charged in the
new information was a Class X felony (720 ILCS 570/407(b)(1)
(West 2000)). Defense counsel objected to proceeding to trial
on the information because the new count included an
additional element. The prosecutor argued that the filing of the
information should not be a surprise to defense counsel
because the prosecutor had told counsel that he would be filing
the information if plea negotiations failed. After counsel
declined an opportunity to present argument regarding any
prejudice defendant might suffer from the timing of the filing of
the new information, the trial proceeded.
Two Urbana police officers, Duane Smith and David
Smysor, testified for the State. On the evening of October 1,
2002, the officers were on foot patrol at Lakeside Terrace, a
housing complex owned and operated by the Housing
Authority. The officers saw a man later identified as defendant
walking near a playground on the complex. He was walking in
the officers= general direction, juggling an object from one hand
to the other. When defendant saw the officers, he turned his
back, placed the item in his left front pants pocket, hesitated,
and continued walking in the direction of the officers.
Defendant appeared to be walking toward an apartment and
the officers decided to meet him there to talk to him. The
conversation took place a few feet from the front door of
apartment No. 32. The officers introduced themselves and
Aexpressed concern@ about the object defendant had placed in
his pocket. Defendant placed his hands in his pockets and
pulled out some United States currency and a cigarette lighter.
Defendant=s pants fit him very loosely and the front pockets
were deep. The officers did not believe that the lighter was the
item defendant had been juggling. They asked for permission
to search defendant=s left front pocket and defendant refused.
Defendant appeared to be nervous and he kept placing his
hands in his pockets. The officers asked him to keep his hands
out of his pockets. After the third time, the officers became
concerned because the pockets were large enough to conceal
a handgun. Defendant became Afidgety@ and continued to put
his hand in his left pocket. The officers asked for identification
and defendant produced a pay stub. After defendant placed his
hand in his pocket for about the sixth time, the officers decided
to pat him down for weapons. When Smith reached for
defendant, he pulled away and began to run. Smysor gave
chase and tackled defendant. As he did so, defendant
appeared to toss a white object onto the ground, which turned
out to be a plastic bag containing 12 individual packages of a
chunky white substance that appeared to be crack cocaine.
None of the paraphernalia commonly used in the consumption
of crack cocaine were found on defendant=s person. Smith
testified that, based on that fact, as well as the quantity of
cocaine, the manner of packaging, and the $75 in currency
found on defendant, he concluded that the cocaine was not
possessed for the purpose of personal consumption.

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 The parties stipulated to the findings of a forensic scientist
who weighed six of the bags and concluded that they contained
1.1 grams of a substance containing cocaine base. The other
six bags were not weighed. The total weight of all the bags was
1.8 grams. The defense presented no evidence. The jury
convicted defendant as stated. Defendant filed a posttrial
motion that did not assert any error regarding the alleged faulty
information filed by the prosecutor. On appeal to the appellate
court, defendant argued that (1) his conviction must be
reversed because he did not receive a preliminary hearing on
the newly filed information, (2) the evidence was insufficient to
convict him of possession of cocaine with the intent to deliver,
(3) defense counsel was ineffective for failing to file a motion to
suppress evidence, and (4) he was entitled to one day=s
additional credit against his sentence and an additional $5
against his fines. The appellate court affirmed the trial court on
the first three issues, but agreed with defendant on the last
issue. The court remanded the cause to the trial court to grant
the additional credit. We granted defendant leave to appeal.
177 Ill. 2d R. 315.

ANALYSIS
I. Standards of Review
Defendant raises three issues for this court=s consideration.
He first argues that his conviction must be reversed because
he was tried and convicted on the basis of an information that
improperly attempted to amend the indictment and on which he
was not afforded a preliminary hearing. The appellate court
reviewed defendant=s argument for plain error. However, as we
note in our discussion of the issue, the appropriate standard of
review that we must apply is the standard set forth in this
court=s decision in People v. Gilmore, 63 Ill. 2d 23, 29 (1976):
AWhen attacked for the first time on appeal an information or
indictment is sufficient if it apprised the accused of the precise
offense charged with sufficient specificity to prepare his
defense and allow pleading a resulting conviction as a bar to
future prosecution arising out of the same conduct.@

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 Secondly, defendant argues that the evidence was
insufficient to prove beyond a reasonable doubt that he
intended to deliver the cocaine. When a court reviews the
sufficiency of the evidence, the relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573,
99 S. Ct. 2781, 2789 (1979).
Finally, defendant argues that his trial counsel was
ineffective for failing to file a motion to suppress evidence.
Claims of ineffective assistance of counsel are judged under
the two-prong test set forth in Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To prevail
on such a claim, the defendant must show both that counsel=s
performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced
the defendant. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at
693, 104 S. Ct. at 2064.
The facts are not in dispute in this case. Accordingly, we
conduct de novo review of the appellate court=s rulings. See
People v. Bracey, 213 Ill. 2d 265, 270 (2004).

II. Failure to Hold Preliminary Hearing
Defendant first argues that because he did not receive a
preliminary hearing on the information filed on the day of trial,
his conviction and sentence must be reversed. The appellate
court concluded that error was committed in the filing of the
information, but that defendant forfeited his argument because
defense counsel did not object at trial and include the error in
defendant=s posttrial motion. The court found the evidence was
not closely balanced nor was the error of such magnitude that
defendant was denied a fair trial. Accordingly, plain error did
not apply.
All prosecutions of felonies must be by indictment or
information. If a prosecution is commenced by information, the
accused is entitled to a preliminary hearing to determine
whether probable cause exists to believe that the accused

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committed an offense. 725 ILCS 5/111B2(a) (West 2000). If a
prosecution is brought by information or complaint and a
preliminary hearing has been held or waived, the accused may
be prosecuted for all offenses arising from the same
transaction or conduct, even though not all such offenses were
charged in the information. 725 ILCS 5/111B2(f) (West 2000).
The State may amend the information to charge those
additional offenses. People v. Kelly, 299 Ill. App. 3d 222, 227
(1998).
Where a prosecution is brought by indictment, the grand
jury has thereby found the existence of probable cause and no
preliminary hearing is held. Once an indictment has been
issued, it may not be broadened through amendment except by
the grand jury itself. People v. Kincaid, 87 Ill. 2d 107, 124
(1981). An exception to this rule provides that an indictment
may be amended on motion of the prosecutor or defendant for
the purpose of correcting formal defects (725 ILCS 5/111B5
(West 2000)) if no surprise or prejudice to the defendant results
(People v. Jones, 53 Ill. 2d 460, 465 (1973)). AHowever, there
is no similar statutory provision permitting the State to alter the
substance of an indictment by filing an information without
affording the accused a right to a preliminary hearing.@ Kelly,
299 Ill. App. 3d at 227.
There is no dispute that the addition of Acount two@ in the
new information was substantive. The offense thereby charged
contained an additional element and carried a more severe
penalty. It is also undisputed that defendant was not afforded a
preliminary hearing on the new offense nor did he waive his
right to a preliminary hearing.
It is important to be clear about the procedural history of
this case. The original information was filed on October 2,
2002. It contained one count charging defendant with unlawful
possession with intent to deliver a controlled substance, a
Class 1 felony. Defendant was arraigned on the charge on
October 2, 2002. The preliminary hearing was set for October
22, 2002. On October 17, 2002, the grand jury issued a one-
count indictment charging defendant with the same offense. On
October 22, 2002, defendant appeared before the trial court
with counsel, waived formal reading of the indictment, entered

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a plea of not guilty, and requested a jury trial. Since the original
information was superceded by the indictment, the information
filed on the first day of trial was not an amendment to the
original information. Rather, it appears to have been an attempt
by the prosecutor to amend the indictment by adding a count II.
As stated, the prosecutor lacked authority to do so.
While the appellate court agreed with defendant that the
attempted amendment of the indictment was improper, the
court found that defendant had waived his challenge to the trial
court=s failure to hold a preliminary hearing on the new
information. The court noted that defendant had not objected
Aat trial@ and failed to raise the issue in his posttrial motion.
Reviewing the matter for plain error, the court found the
evidence was not closely balanced and that the error did not
affect the fundamental fairness of the proceeding.
Defendant argues that the appellate court=s decision in
Kelly is similar to this case and it provides guidance as to the
proper analysis. In Kelly, the defendant was charged by
indictment with two counts alleging hate crimes. On the day of
trial, the prosecutor asked leave of court to dismiss the
indictment and file a seven-count information. The defendant
objected on the ground that the information charged different
offenses, entitling him to a preliminary hearing. The trial court
rejected the defendant=s argument and allowed the filing of the
information because the new charges arose out of the same
transaction or conduct upon which the indictment was based.
The trial court dismissed three of the counts and the defendant
was convicted on the other four counts. At the close of trial, the
defendant filed a motion in arrest of judgment on the grounds
that he was not afforded a preliminary hearing on the charges.
The trial court denied the motion. The appellate court reversed
and remanded. The State argued that the defendant suffered
no prejudice as a result of the denial of a preliminary hearing.
The appellate court rejected this argument, finding that even
assuming that the defendant did not suffer any prejudice, his
conviction would still have to be reversed. The defendant filed
a timely pretrial objection, demanded a preliminary hearing,
and filed a timely motion in arrest of judgment. Accordingly, he

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was not required to show prejudice. Kelly, 299 Ill. App. 3d at
228.
There are important distinctions between Kelly and the
instant case. While defense counsel did object to the
prosecutor=s filing of the information, he objected only on the
ground that the new information charged a different offense
with a more severe penalty. In contrast to Kelly, counsel did not
raise the objection that defendant had not been afforded a
preliminary hearing. Further, again in contrast to Kelly, defense
counsel did not raise the issue in his posttrial motion. Both an
objection at trial and inclusion of the alleged error in a written
posttrial motion are necessary to preserve the error for review.
People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Defense counsel=s objection did not inform the trial court of
the need for a preliminary hearing prior to proceeding to trial on
the new information. Had counsel=s objection relied on the
proper grounds, the trial court could have corrected the error
by setting the matter for preliminary hearing or obtaining a
waiver of that hearing from defendant. See People v. Woods,
214 Ill. 2d 455, 470 (2005) (the rule requiring a specific
objection is especially appropriate where a defendant=s lack of
a timely and specific objection deprives the trial court of the
ability to correct deficiencies in the foundational proof at trial).
This court has held that a specific objection waives all other
grounds. People v. O=Neal, 104 Ill. 2d 399, 407 (1984).
Accordingly, we conclude that defendant failed to preserve his
argument and that he must show that he was prejudiced by the
failure to hold a preliminary hearing on the new information
filed by the prosecutor. See People v. Gilmore, 63 Ill. 2d 23, 29
(1976) (AWhen attacked for the first time on appeal an
information or indictment is sufficient if it apprised the accused
of the precise offense charged with sufficient specificity to
prepare his defense and allow pleading a resulting conviction
as a bar to future prosecution arising out of the same
conduct@).
Defendant argues that he should not have to show
prejudice and that requiring him to do so rewards the
prosecutor for disregarding statutory mandates requiring a
preliminary hearing on an information. Defendant cites this

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court=s decision in People v. Benitez, 169 Ill. 2d 245 (1996),
which he believes supports his contention. In that case, an
indictment was issued by the grand jury. It did not mention the
defendant and it wrongly named as the victim a witness who
testified before the grand jury. The indictment was signed by
the grand jury foreperson and the State=s Attorney. In response
to a letter from the State=s Attorney informing him that the
grand jury had returned an indictment against him, the
defendant and his attorney appeared at the scheduled
arraignment. The trial court granted the State leave to file the
indictment and a copy was given to defense counsel. However,
this was not the same indictment returned by the grand jury. It
was not signed by either the grand jury foreperson or the
State=s Attorney. The grand jury had not reconvened prior to
the issuance of the second indictment and no motion was
made to amend the original indictment. This new indictment
charged defendant with first degree murder, attempted murder,
aggravated battery, and armed violence. On the second day of
the defendant=s trial, defense counsel informed the trial court
that he had just learned that the original indictment did not
contain the defendant=s name. The trial proceeded with the
understanding that defense counsel was not waiving the issue.
However, the trial court ultimately ruled that the second
indictment was valid and the defendant was convicted of first
degree murder and aggravated battery. Defense counsel filed
a posttrial motion to vacate the defendant=s convictions,
arguing that they resulted from an invalid indictment. During an
evidentiary hearing, it was revealed that the second indictment
had been prepared by secretaries in the State=s Attorney=s
office. The State argued that there had simply been a mistake
in the paperwork that left the defendant=s name off the original
indictment. The trial court denied the defendant=s motion,
finding that the grand jury transcript showed that the grand jury
had voted a true bill against the defendant for first degree
murder and the other offenses. The court concluded that the
second indictment properly charged and informed the
defendant of the nature and elements of the charges. The
appellate court affirmed. Benitez, 169 Ill. 2d at 250.

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 After concluding that the original indictment did not charge
the defendant with any offense and the second indictment was
invalid, this court reversed the defendant=s convictions. The
court determined that the prejudice standard of Gilmore did not
apply because the defendant attacked the indictment during
the trial, not following trial or for the first time on appeal.
Defense counsel raised the issue immediately upon
discovering that the original indictment had not contained the
defendant=s name. Counsel raised the issue again in his
posttrial motion. The State did not argue that the defendant
had waived his argument. Thus, we held that under the unique
circumstances of the case, the defendant was not required to
show prejudice to obtain a reversal of his convictions. Benitez,
169 Ill. 2d at 259.
Defendant=s situation is not analogous to that in Benitez.
While defense counsel here objected to the filing of the new
information, his objection was on a different ground from the
one defendant now advances on appeal. In addition, while
counsel in Benitez filed a posttrial motion to vacate the
defendant=s convictions on the ground he first raised on the
second day of trial, defense counsel in this case did not make
any objection to the filing of the new information in defendant=s
posttrial motion. Because defendant did not properly preserve
the objection he now raises, he must show that he was
prejudiced by the failure of the trial court to order a preliminary
hearing and by proceeding to trial on the information. While we
do not condone the prosecutor=s attempt to amend the
indictment in this case, the record contains no evidence of any
bad-faith effort to deprive defendant of his right to a preliminary
hearing. The error was not caught by the prosecutor, defense
counsel, or the trial court.
The appellate court reviewed defendant=s contention for
plain error. However, the proper inquiry where a defendant
challenges a charging instrument for the first time on appeal is
that set forth in Gilmore. Despite the fact that the information
filed on the day of trial was an invalid attempt to amend the
indictment, defendant is entitled to no relief if the information
apprised him of the precise offense charged with sufficient
specificity to prepare his defense and allow pleading a resulting

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conviction as a bar to future prosecution arising out of the
same conduct. Gilmore, 63 Ill. 2d at 29. Defendant has failed to
show how he was prejudiced by the charging instrument error.
In fact, although defendant did not testify at the trial and no
other evidence was submitted in his defense after the State
rested its case, defense counsel admitted during closing
argument that defendant was on the Lakeside Terrace property
at the time the exchange took place between him and the
police officers. The only element added by the new information
was defendant=s location at the time the crime was committed.
Defense counsel conceded that the information was correct on
that point. Defendant does not argue otherwise on appeal. We
conclude that defendant has not demonstrated any prejudice
from the filing of the information or the failure to hold a
preliminary hearing. Accordingly, we reject his argument that
his conviction must be reversed.

III. Intent to Deliver
Defendant next argues that the evidence was insufficient to
prove beyond a reasonable doubt that he had the intent to
deliver cocaine. When a court reviews the sufficiency of the
evidence, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789
(1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). Under
this standard, a reviewing court must construe all reasonable
inferences from the evidence in favor of the prosecution.
People v. Bush, 214 Ill. 2d 318, 326 (2005).
Defendant contends that because the amount of cocaine in
his possession was at the low end of the statutory range, i.e.,
1.8 grams, he was not carrying a large amount of cash, and he
did not have a weapon or other indicia of an intent to deliver,
he should have been convicted only of simple possession. He
claims the amount of cocaine was consistent with personal
use.
Because direct evidence of intent to deliver is rare, intent
must usually be proved by circumstantial evidence. Factors

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that have been considered by reviewing courts in making a
determination as to whether sufficient evidence of intent to
deliver exists include (1) whether the quantity of the controlled
substance is too large to be viewed as being for personal
consumption, (2) the high purity of the drug, (3) possession of
weapons, (4) possession of large amounts of cash, (5)
possession of police scanners, beepers, or cellular phones, (6)
possession of drug paraphernalia, and (7) the manner in which
the controlled substance is packaged. People v. Robinson, 167
Ill. 2d 397, 408 (1995). The question of whether the evidence is
sufficient to prove intent to deliver must be determined on a
case-by-case basis. The smaller the quantity of controlled
substance in a defendant=s possession, the greater the need
for additional circumstantial evidence of intent to deliver.
Robinson, 167 Ill. 2d at 412-13. The list of factors set forth in
Robinson are not exhaustive, but are merely examples of
factors that courts have considered as probative of intent to
deliver. Bush, 214 Ill. 2d at 327.
The State concedes that the amount of cocaine in
defendant=s possession could be consistent with personal use.
However, it contends that this factor is countered by three
other factors that the appellate court considered: (1) the
cocaine was packaged in 12 individual baggies; (2) defendant
possessed no paraphernalia that would be consistent with
personal use of the cocaine; and (3) defendant possessed $75
in cash. Defendant considers the lack of personal consumption
paraphernalia to be countered by the fact that he possessed no
beeper, pager, or weapon. He argues that $75 is not a large
amount of cash and could have come from his job, noting the
pay stub he produced when the officers asked him for
identification.
The appellate court rejected defendant=s arguments. It
noted that, in appropriate circumstances, packaging alone
might be sufficient evidence of intent to deliver. At a minimum,
the court said, a finding of intent to deliver requires drugs
packaged for sale and any one additional factor tending to
show intent to deliver. In finding that the evidence in this case
supported defendant=s conviction, the appellate court noted
that defendant possessed 1.8 grams of cocaine that was

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individually packaged in 12 baggies. Officers Smith and
Smysor testified that based on the manner in which the
cocaine was packaged, the quantity of the baggies, the
currency on defendant=s person at the time of his arrest, and
the absence of drug paraphernalia for personal use, it was their
opinion that defendant possessed the cocaine with the intent to
deliver.
At trial, Officer Smith testified that he was familiar with items
used to consume crack cocaine. Normally, a round cylinder of
some type, such as a car antenna or glass tube with openings
at both ends, would be used in conjunction with a filtering
device at one end, such as a scrubbing pad made of copper
material. Smith testified that based on the quantity and manner
of packaging in individual packages and the absence of any
paraphernalia for personal consumption of the cocaine, he
believed that defendant possessed the cocaine with the intent
to deliver it to another person. Smith noted that the cocaine
had already been divided and placed in individual baggies. In
that situation, there is no need for a scales or cutting agent to
divide the cocaine for sale. He further testified that the amount
possessed by defendant was inconsistent with an amount
typically associated with personal consumption. However, on
cross-examination, Smith clarified his testimony by saying that
the number of individual rocks was indicative of delivery.
Officer Smysor testified that the cocaine was divided up into
12 individual rocks of cocaine that were contained in separate
small plastic baggies and those baggies were inside a larger
plastic bag. In Smysor=s experience, the manner in which the
cocaine was packaged, together with the cash that was
recovered from defendant, indicated that defendant was Amost
likely@ selling the cocaine. Smysor testified that the size of the
rocks of cocaine in the baggies were the size that he typically
dealt with on the street; they are usually sold for $10 each.
Smysor further testified that he considered the $75 cash found
in defendant=s possession to be relevant because, although he
did not know the source of the cash, in his experience, the sale
of small individually packaged rocks of cocaine is primarily a
cash business.

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 Although Robinson enumerated several factors that are
relevant to the issue of intent to deliver, this court has made
clear that the factors outlined in Robinson are not exclusive. In
Bush, the defendant was convicted of possession of cocaine
with intent to deliver. Two police officers on narcotics
surveillance observed the defendant standing alone behind a
wrought iron fence fronting an apartment building. On two
occasions over a period of five minutes, an unknown man
approached the defendant and handed her money. She walked
a few feet away, reached under the fence and retrieved an
unknown object from a brown paper bag, which she then gave
to the man. When the officers approached the defendant, they
found a clear plastic baggie inside the brown paper bag
containing what appeared to be crack cocaine. When the
officers searched the defendant, they found two $10 bills in her
pants pocket. Defendant argued, inter alia, that because none
of the factors outlined in Robinson were present in her case,
her conviction should be reversed. This court rejected that
argument, noting that Robinson described the factors it cited as
examples of many factors that Illinois courts have considered
probative of intent to deliver; no hard and fast rules could be
applied in every case, given the infinite number of factual
scenarios that may arise. The court found that the defendant=s
actions as observed by the police officers permitted an
inference to be drawn that she was selling cocaine. Bush, 214
Ill. 2d at 327.
Here, defendant was on property owned and operated by
the Housing Authority. Officers Smith and Smysor testified that
they routinely patrolled Lakeside Terrace because it was
known as a location where illegal drug activity took place on a
continuing basis. The officers were familiar with at least five
apartments where drug sales were ongoing. Defendant was
carrying a plastic bag containing 12 individual baggies, each
containing one rock of crack cocaine. Smysor testified that, in
his experience, the size of the individual rocks defendant
possessed indicated that they were possessed for the purpose
of sale. They were $10 rocks, the kind Smysor dealt with on
the street.

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 Defendant was stopped in a high-crime area known for its
drug activity. Also, while defendant did not have a large
amount of cash on his person, the cocaine he possessed was
packaged into separate $10 rocks. While it may be inferred, as
defendant argues, that the $75 came from his employment, an
equally reasonable inference may be drawn that defendant had
sold some of the rocks of cocaine he was carrying and at least
some of the cash was attributable to those sales. We note that
all reasonable inferences must be drawn in favor of the
prosecution. See Bush, 214 Ill. 2d at 326.
While defendant was not carrying a pager, weapon, scale,
cutting agent, or police scanner, he was also not carrying any
paraphernalia associated with personal use of the cocaine.
Further, we note that since the cocaine was already packaged
for sale, there was no need for defendant to carry cutting
agents or a scale. Construing the evidence and reasonable
inferences therefrom in favor of the prosecution, we conclude
that a rational trier of fact could have found the evidence
sufficient to prove that defendant had the intent to deliver the
cocaine.

IV. Ineffective Assistance of Counsel
Defendant=s last argument is that his trial counsel was
ineffective for failing to file a motion to suppress evidence,
where the cocaine was seized following an illegal stop by the
police officers. Claims of ineffective assistance of counsel are
judged under the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). To prevail on such a claim, the defendant must show
both that counsel=s performance fell below an objective
standard of reasonableness and that the deficient performance
prejudiced the defendant. Strickland, 466 U.S. at 687-88, 80 L.
Ed. 2d at 693, 104 S. Ct. at 2064. If a court finds that the
defendant did not suffer any prejudice from counsel=s acts or
omissions, it need not consider whether counsel=s performance
was deficient. People v. Ceja, 204 Ill. 2d 332, 358 (2003).
Generally, the decision whether to file a motion to suppress is
a matter of trial strategy, which is entitled to great deference.
People v. Wilson, 164 Ill. 2d 436, 454 (1994).

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 Defendant argues that the officers seized him when they
met him as he was approaching the door of apartment No. 32,
thereby impeding his progress toward his destination. We note
that not every encounter between the police and a citizen
results in a seizure. This court has recognized that police-
citizen encounters can be divided into three tiers: (1) the arrest
of a citizen, which must be supported by probable cause; (2) a
ATerry stop,@ which must be supported by a reasonable,
articulable suspicion of criminal activity (see Terry v. Ohio, 392
U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)); and (3) a
Acommunity caretaking function,@ which need not be supported
by probable cause or reasonable suspicion. People v. Smith,
214 Ill. 2d 338, 351-52 (2005). The latter function describes
those encounters between police and citizens that are
consensual in nature and typically involve the safety of the
public. People v. Murray, 137 Ill. 2d 382, 387 (1990).
A person is seized A >when, by means of physical force or a
show of authority,= @ that person=s A >freedom of movement is
restrained.= @ People v. Brownlee, 186 Ill. 2d 501, 517 (1999),
quoting United States v. Mendenhall, 446 U.S. 544, 553, 64 L.
Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). In deciding
whether a seizure has occurred, a court considers whether, in
light of all the circumstances surrounding the incident, a
reasonable innocent person would have believed that he or she
was not free to decline police requests or to terminate the
encounter. People v. Gherna, 203 Ill. 2d 165, 178 (2003).
Accordingly, this analysis requires an objective evaluation of
the police conduct in question and does not hinge upon the
subjective perception of the person involved. Gherna, 203 Ill.
2d at 178.
Officer Smith testified that at approximately 8:30 on the
evening of October 1, 2002, he and officer Smysor were on
routine foot patrol at the Lakeside Terrace housing complex.
They saw defendant walking on the sidewalk inside the
complex juggling something in his hands. Defendant was
approximately 50 to 60 feet away and the officers could not see
what the object was. When defendant saw the officers, he
immediately turned his back to them and placed the object in
his left front pants pocket. Defendant then hesitated and

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continued walking in the same direction he had been walking.
Smith testified that defendant=s actions caused him to become
suspicious. Smith suggested to Smysor that they Ago over and
have a chat with the gentleman.@ As it appeared that defendant
was headed toward one of the apartments, the officers Asimply
met him at the apartment@ and spoke to him while standing a
couple of feet from the door of apartment No. 32. Both officers
were in uniform. They introduced themselves and Aexpressed
concern@ about the item that defendant had placed in his
pocket. Defendant Aimmediately@ placed his hands in his pants
pockets and pulled out some United States currency in his right
hand and a lighter with his left hand. Smith testified that
defendant=s pants fit him very loosely and that the pockets
were Avery deep.@ When the officers asked defendant if he had
anything illegal on his person, defendant indicated that he did
not. Smith did not believe that the lighter was the item that
defendant had been juggling from hand to hand. Despite being
asked several times by the officers to refrain from putting his
hands in his pants pockets, defendant continued to do so.
Smith asked defendant for permission to search his left pants
pocket and defendant Astrongly said, >No.= @ Defendant
questioned the officers as to why they were talking to him. The
officers told him that Lakeside Terrace was Aa high crime area
and that there had been plenty of drug activity going on in that
area.@ Given the large pockets in defendant=s pants and the
fact that he continued to place his hands in his pockets against
the officers= instructions, Smith was becoming concerned for
his safety. Defendant=s pockets were large enough to easily
conceal a weapon. Defendant continued to place his hands in
his pockets and seemed to be Avery fidgety, jittery, nervous.@
Smith decided to back away from defendant to put him at ease.
At that point, Smith asked defendant for identification.
Defendant gave Smith a pay stub. Smith called the dispatcher
to have defendant=s name and birth date confirmed. Smith
again asked defendant for permission to search his left pants
pocket and defendant refused. When defendant put his hand in
his pocket for about the sixth time, Smith directed Smysor to
Agrab@ defendant for a pat-down safety frisk. Smith tried to grab
defendant=s left arm, but defendant moved his arm and Smith

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missed. Defendant began to run away. Smysor tackled
defendant about 10 feet from where they had all been
standing. As both defendant and Smysor fell to the ground,
Smith saw a white object fall onto the ground in defendant=s
vicinity.
Smith testified that he did not find the juggling of the item
suspicious. It was defendant=s action in turning his back when
he saw the officers and putting the object in his pants pocket
that roused Smith=s suspicions. Lakeside Terrace is a high-
crime area and Smith had made many drug arrests there in the
past. He knew of at least five apartments in the complex where
drug sales took place on an ongoing basis. At some point,
Smith asked defendant what would happen if a Adrug dog@ was
brought around him; Smith had no intention of doing so, but he
asked the question to gauge defendant=s reaction. Defendant
responded, AFine. Bring him over here.@ That is when Smith
asked defendant for identification. He asked if defendant was
banned from the property and if he had any outstanding
warrants. While this conversation was going on, defendant had
been Ainching@ toward the door of apartment No. 32. Smith was
standing with his back to the apartment door and defendant
was standing on his right, in a perpendicular angle to the door.
Officer Smysor testified that when defendant saw him and
Smith, he appeared to be startled. He placed an object in the
left front pocket of his pants. He initially turned away from them
and took a step in the opposite direction. Then he stopped,
turned around, and started walking in the general direction of
the officers and toward one of the apartment units. He and
Smith walked toward defendant and made contact with him in
the porch area of apartment No. 32.
Defendant argues that he was illegally seized when the
officers stood between him and the door to apartment No. 32.
According to defendant, the officers impeded his progress and
a reasonable person would not have felt free to walk away.
We must first determine the nature of the encounter
between the police officers and defendant. At the time they
approached defendant, the officers were on routine patrol
within the confines of Lakeside Terrace, which was a high-
crime area. When they first noticed defendant, he was juggling

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an object from one hand to the other, an action which they did
not find suspicious. Only after defendant appeared to notice
the officers, turn his back, and put the object in his pants
pocket did the officers become suspicious. It was after making
these observations that the officers determined to approach
defendant and talk to him. We note that the community
caretaking function involves consensual encounters between
police and citizens typically associated with the safety of the
public. Smith, 214 Ill. 2d at 352. Such encounters are not
initiated due to any suspicion of possible criminal activity. See
Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706,
714-15, 93 S. Ct. 2523, 2528 (1973) (community caretaking
function is Atotally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal
statute@). In the instant case, the officers initiated contact with
defendant, not due to any public safety concerns, but because
they found his actions suspicious and decided to investigate.
Accordingly, we conclude that it is the role of police officers as
investigators of crime that is involved here. We need not
determine whether defendant was seized when the officers met
him on the porch of apartment No. 32 because we conclude
that prior to the initiation of contact with defendant, the officers
had a reasonable articulable suspicion that defendant had
committed or was about to commit a crime. In making a
determination as to whether reasonable suspicion was justified
in this case, we rely upon Acommonsense judgments and
inferences about human behavior.@ Illinois v. Wardlow, 528
U.S. 119, 125, 145 L. Ed. 2d 570, 577, 120 S. Ct. 673, 676
(2000).
Officers Smith and Smysor were patrolling Lakeside
Terrace, a housing project known as a high-crime area.
Several drug arrests had been made there in the past and the
officers knew that some of the apartments were ongoing
locations for drug sales. While merely being in a high-crime
area is not alone sufficient to give rise to reasonable suspicion,
the characteristics of the surroundings in which the contact
between police and an individual takes place are relevant to
the question of whether the police had a reasonable,
articulable suspicion that criminal activity may be afoot.

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Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at
676. As in Wardlow, it was not defendant=s presence at
Lakeside Terrace, a known location for drug sales, that
aroused the officers= suspicion, nor was it defendant=s juggling
of the object. Rather, it was defendant=s reaction to seeing the
officers by immediately turning his back and placing the object
in his pants pocket that led the officers to believe that
defendant might be committing or be about to commit a crime.
That defendant tried to conceal from the officers the object he
had been juggling suggested some consciousness of guilt on
defendant=s part. Given what the officers knew about ongoing
drug activity at Lakeside Terrace, coupled with defendant=s
effort to conceal the object in his pocket when he saw the
uniformed officers, we conclude that reasonable, articulable
suspicion existed for the officers to stop defendant and
investigate.
Defendant argues that even if the initial stop was supported
by reasonable suspicion, the officers exceeded their authority
to detain him after he showed them the cigarette lighter he had
in his left pants pocket. According to defendant, the stop
should have ended there. We disagree. The officers were not
required to take defendant=s word as to what he had in his left
pants pocket. They did not consider it likely that defendant had
been juggling a lighter and sought to hide it when he saw the
officers. Further, despite being asked several times not to put
his hands in his pockets, defendant continued to do so. Since
his pockets were large enough to conceal a weapon, the
officers had a legitimate concern for their safety, thus justifying
the pat-down frisk that prompted defendant to flee.
Because we conclude that a motion to suppress would not
have been successful, defense counsel=s failure to file such a
motion did not prejudice defendant. Thus, defendant has failed
to carry his burden to show that he received the ineffective
assistance of counsel.

CONCLUSION
For the reasons stated, we affirm the appellate court=s
judgment.

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 Appellate court judgment affirmed.

JUSTICE FITZGERALD, dissenting:
The facts of this case establish that defendant was walking
near a playground on housing authority property known as a
Ahigh drug@ and Ahigh crime@ area at 8:30 p.m. on October 1,
2002, when he was spotted by two police officers on routine
foot patrol. The street lights were on, and the officers agreed
that it was Adark enough that there were light and shadow
areas.@ The officers, who were standing some 50 to 60 feet
away from defendant, testified that he was Ajuggling@ an object
while he walked; he Ahad something in his hands and he was
switching it back and forth between the two hands.@ The object
was so small it was concealed in the palm of defendant=s hand
and the officers could not see it.
The officers observed defendant and then Astepped out of a
shadowy area@ to reveal their presence. They stated that
defendant appeared to be Astartled@ by them, and upon seeing
them, turned his back, placed the item in his pocket, and then
turned around and proceeded to walk toward some apartment
buildings. Defendant did not alter his original course to avert
the officers. Nevertheless, defendant=s act of turning his back,
placing the unidentified object in his pocket, and resuming his
walk aroused their suspicion, and they decided to intercept
defendant at the apartment building and conduct a Terry stop.
The officers approached defendant, spoke with him, and
eventually advised him that they were going to conduct a pat-
down search. Defendant ran, and was ultimately arrested for
possession with intent to deliver.
The majority holds that defendant was not prejudiced by
trial counsel=s failure to file a motion to suppress on grounds of
an illegal seizure because such a motion would not have been
successful. I disagree. In my opinion, trial counsel=s decision to
forgo the suppression motion fell below an objective standard
of reasonableness and resulted in prejudice to defendant. The
suppression motion should have been successful in light of the
facts presented. While it is true that the officers in question only

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seized defendant and recovered the narcotics he possessed
after he attempted to run from them, that fact is of no
consequence because the police officers did not, at the outset,
possess a reasonable and articulable suspicion to stop
defendant under Terry.
This court has defined the reasonableness standard for
police conduct in the context of a Terry stop. In People v.
Thomas, 198 Ill. 2d 103 (2001), we stated that a Terry stop
was properly based on reasonable suspicion when:
AViewed as a whole, the situation confronting the police
officer must be so far from the ordinary that any
competent officer would be expected to act quickly. The
facts supporting the officer=s suspicions need not meet
probable cause requirements, but they must justify more
than a mere hunch. The facts should not be viewed with
analytical hindsight, but instead should be considered
from the perspective of a reasonable officer at the time
that the situation confronted him or her.@ (Emphases
added.) Thomas, 198 Ill. 2d at 110.
Applying this standard to the case at bar, I cannot conclude
that defendant=s conduct was Aso far from the ordinary that any
competent officer would be expected to act quickly.@ (Emphasis
added.) Thomas, 198 Ill. 2d at 110. At the time the officers
spotted defendant, he was simply a person walking towards an
apartment building holding something very small and
unidentifiable in his hand who stopped, turned around, placed
the item in his pocket, and continued walking in the same
direction. Defendant=s conduct was not sufficiently suspicious
to justify a Terry stop under any circumstances, even in a high-
crime, high-drug area. An individual=s protection under the
fourth amendment is not dissipated simply because he or she
enters an area known for criminal activity and a bustling drug
trade. It seems unlikely that defendant would have been
detained under Terry for such innocuous conduct if he were in
a different location.
I recognize that reasonable suspicion sufficient to support a
Terry stop may emerge from seemingly innocent, noncriminal
conduct. See Illinois v. Wardlow, 528 U.S. 119, 125, 145 L. Ed.
2d 570, 577, 120 S. Ct. 673, 677 (2000). However, A[t]he facts

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used to support an investigatory detention are insufficient when
they describe >a very large category of presumably innocent
travelers, who would be subject to virtually random seizures.= @
People v. Anaya, 279 Ill. App. 3d 940, 946 (1996), quoting Reid
v. Georgia, 448 U.S. 438, 441, 65 L. Ed. 2d 890, 894, 100 S.
Ct. 2752, 2754 (1980). This analysis does not change
depending on the individual=s location. Here, the officers acted
on a hunch that defendant was up to something more than
innocent activity. However, an officer=s hunch, even when
borne out, is insufficient to justify a stop under Terry (Thomas,
198 Ill. 2d at 110) and, in this case, resulted in a Arandom
seizure@ in violation of defendant=s fourth amendment rights
(Anaya, 279 Ill. App. 3d at 946). Accordingly, trial counsel was
deficient for failing to file a motion to suppress.

JUSTICE KILBRIDE joins in this dissent.

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