People v. Nitz

No. 2--05--0704 Filed 2-16-07
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, )
) No. 03--CF--167
v. )
) Honorable
WILLIAM J. NITZ, ) Ward S. Arnold and
) Sharon L. Prather,
Defendant-Appellant. ) Judges, Presiding.
_________________________________________________________________________________

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
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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

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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

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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, 80 L. Ed. 2d 674, 104 S. Ct.

2052 (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, 80 L. Ed.

2d at 693, 698, 104 S. Ct. at 2064, 2068. 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 (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 (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 (2003). Here, the

trial court ruled in the State's favor at the close of defendant's evidence. Accordingly, this court must

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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 (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. The ultimate question of whether to quash and suppress is reviewed de novo. Lee,

214 Ill. 2d at 484.

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, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991), quoting Terry v. Ohio, 392

U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 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 (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 effective law enforcement makes it reasonable

in some situations for law enforcement officers to temporarily detain and question individuals,

notwithstanding the absence of probable cause for an arrest. Under Terry, a limited investigatory stop

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is permissible where there exists a reasonable suspicion, based upon specific and articulable facts, that

the person has committed or is about to commit a crime. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at

906, 88 S. Ct. at 1880. Whether an investigatory stop is reasonable is determined by an objective

standard, and only facts known to the officer at the time of the stop may be considered. Village of

Mundelein v. Thompson, 341 Ill. App. 3d 842, 848 (2003).

An investigatory stop need not be based on the officer's personal observation but may instead

be based on information from members of the public. People v. Jackson, 348 Ill. App. 3d 719, 729

(2004). However, "[a]n informant's tip to police must bear some indicia of reliability to provide a

sufficient basis for a Terry-type seizure." Thompson, 341 Ill. App. 3d at 850. "[A] reviewing court

should consider the informant's veracity, reliability, and basis of knowledge." People v. Sparks, 315

Ill. App. 3d 786, 792 (2000).

There is no rigid test for determining whether an informant's tip will support an investigatory

stop; rather, courts consider the totality of the circumstances. Thompson, 341 Ill. App. 3d at 850.

Indicia of reliability include, inter alia, facts known to the officer that corroborate the tip. See

Thompson, 341 Ill. App. 3d at 851. Corroboration is especially important when the informant is

anonymous (Thompson, 341 Ill. App. 3d at 851) and is even more important when the anonymous

tip is given by telephone rather than in person (see People v. Miller, 355 Ill. App. 3d 898, 902-03

(2005)). "However, when information comes from a named witness, it remains the case that a

minimum of corroboration or other verification of the reliability of the information is required."

Thompson, 341 Ill. App. 3d at 851. Corroboration of innocent details or of information that is readily

known or knowable is of little value. See 4 W. LaFave, Search & Seizure §9.5(h), at 590-91 n.475

(4th ed. 2004) (and cases cited therein). On the other hand, a showing that an informant is able to

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predict a defendant's future behavior lends credence to the tip. See, e.g., People v. Chavez, 327 Ill.

App. 3d 18, 32 (2001). In addition, it is relevant whether the informant has a track record of

providing reliable information in prior cases. Chavez, 327 Ill. App. 3d at 32.

Whether the information comes from an ordinary citizen or a paid informant is also germane

to the inquiry. In the past, courts used this distinction as a shortcut to determining credibility and

reliability. People v. Adams, 131 Ill. 2d 387, 397 (1989). Information from an ordinary citizen acting

with the intent to aid police in law enforcement efforts was viewed as more credible than a tip from

an informant giving the information for payment or other personal gain. Adams, 131 Ill. 2d at 397.

Courts no longer employ rigid presumptions based on the distinction between citizen informants and

paid informants. Adams, 131 Ill. 2d at 398. However, the distinction is still relevant in considering

the totality of the circumstances. Adams, 131 Ill. 2d at 398.

Applying these principles here, we conclude that the police were entitled to conduct an

investigatory stop. It is true that the tip that led to the investigatory stop did not come from a citizen

informant motivated primarily by a desire to assist the police. Rather, the informant had recently been

arrested and had reason to believe that supplying information to the police might redound to his

benefit in any criminal proceedings against him. The tip may therefore be viewed as less reliable than

it would have been if the informant had approached the police as a victim of a crime or as a civic-

minded witness. Furthermore, there is no evidence that the informant had any history of providing

reliable tips. Nonetheless, under the totality of the circumstances, there were substantial indicia of

the informant's reliability. We first consider the basis of the informant's knowledge. The tip was

based on a telephone conversation between defendant and the informant during which they arranged

a drug transaction. Thus, the informant had a reliable basis for knowing that it was likely that

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defendant would have illegal drugs in his possession at the appointed time and place for the

transaction. More importantly, the telephone conversation took place in the presence of the police.

Although the police were able to hear only the informant's side of the conversation, what they heard

clearly pertained to a proposed drug transaction at a specified time and place. When the informant

related the conversation to the police, his account was consistent with what the police were

themselves able to hear. And when the police arrived at the location where the informant said the

transaction was to take place, a vehicle matching the description given by the informant was there

waiting. From its license plate, the police determined that the vehicle belonged to defendant. These

circumstances strongly corroborated the informant's tip by (1) showing that the informant was able

to predict defendant's future behavior and (2) substantiating that the other party to the informant's

telephone call was, in fact, defendant.

Defendant relies on People v. Ertl, 292 Ill. App. 3d 863 (1997), in support of his argument

that the police were not justified in conducting an investigatory stop based on the informant's tip. In

Ertl, the defendant's estranged wife telephoned police and advised them that she and defendant had

been involved in an altercation at her house. She indicated that the defendant was sitting in the

driveway and would not leave. The defendant and his wife were in the midst of divorce proceedings.

The defendant's wife had purchased the defendant's interest in the house, but the defendant was

entitled to use a shed on the property for several more months. The defendant had come to the house

to pick up his mail, and he inquired about something that was missing from the shed. The defendant's

wife informed the police that the defendant owned several guns and that her father had previously

found a loaded gun in the shed but had unloaded it. She also indicated that the defendant sometimes

kept a weapon in his vehicle. She did not know whether the defendant had a weapon with him at that

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time. The defendant drove away from the house and was stopped by the police based on his wife's

description of the truck he was driving. After being stopped, the defendant consented to a search of

his truck. A loaded pistol was found in the glove compartment, and the defendant was charged with

unlawful use of a weapon. The trial court granted the defendant's motion to quash his arrest and

suppress evidence. The State appealed, and this court affirmed.

This court reasoned that "[t]hough a degree of veracity or credibility would normally attach

to the information provided by an identified citizen-informant, the information supplied here was

based on limited and somewhat speculative observations and consisted largely of the informant's

subjective fears." Ertl, 292 Ill. App. 3d at 873. This court noted that the "tenor" of the defendant's

wife's call to the police "was preemptive and anticipatory and did not impart the type of urgency that

would arise from witnessing a crime in progress and thereby suggest a greater degree of reliability."

Ertl, 292 Ill. App. 3d at 873. Moreover, this court concluded that "[t]he quality and the factual basis

of the knowledge provided the police were insufficient to warrant the stop," because the defendant

had gone onto his wife's property legally and the information bearing on whether the defendant was

carrying a weapon was speculative. Ertl, 292 Ill. App. 3d at 873-74. This case bears no meaningful

resemblance to Ertl. Whereas the informant in Ertl could only speculate whether the defendant had

committed or was about to commit a crime, here the informant arranged an illegal transaction with

the defendant, which was to take place at a specified time and location. Thus, the tip given here was

by no means speculative.

Defendant contends that even if the investigatory stop was initially valid, it quickly developed

into an unlawful arrest. Defendant maintains that he was under arrest at the point that the police

placed him in handcuffs. According to defendant, even if the police had sufficient reliable information

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to conduct an investigatory stop, they lacked probable cause to arrest him. Defendant insists that the

evidence collected after his unlawful arrest should have been excluded unless the collection of the

evidence was sufficiently attenuated from the illegality.

The fact that police officers place an individual in handcuffs does not necessarily transform

an investigatory stop into an arrest (People v. Walters, 256 Ill. App. 3d 231, 237 (1994)), but when

arrest-like measures (such as handcuffing) are employed, they must be " 'reasonable in light of the

circumstances that prompted the stop or that developed during its course.' " 4 W. LaFave, Search

& Seizure §9.2(d), at 304 (4th ed. 2004), quoting United States v. Acosta-Colon, 157 F.3d 9, 15 (1st

Cir. 1998). At least one court has suggested that risks inherent in interdicting drug traffic may

warrant the use of handcuffs in investigatory stops involving motor vehicles. People v. Waddell, 190

Ill. App. 3d 914, 927 (1989). In this case, however, it is unnecessary to decide whether placing

defendant in handcuffs constituted an arrest. Before that occurred, a police officer approached

defendant's vehicle. When defendant rolled down the window, the officer detected a "fresh cannabis

smell" coming from the vehicle. At that point, given all the other circumstances known to the officer,

there was probable cause to arrest defendant. See People v. Faucett, 442 Mich. 153, 156 n.3, 499

N.W.2d 764, 767 n.3 (1993) (police officer's detection of odor of fresh marijuana, through open

window of vehicle, supplied probable cause for search that resulted in the discovery of approximately

four ounces of marijuana). Thus, even if defendant was under arrest when he was placed in

handcuffs, the arrest was not unlawful.

For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

McLAREN and HUTCHINSON, JJ., concur.

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