People v. Allen

Opinion

NO. 4-09-0682 Opinion Filed 5/11/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County HENRY LEE ALLEN, ) No. 08CF1194 Defendant-Appellant. ) ) Honorable ) James E. Souk, ) Judge Presiding. _________________________________________________________________

PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Appleton and Pope concurred in the judgment and opinion.

OPINION

In March 2009, following a bench trial, the trial court

convicted defendant, Henry Lee Allen, of unlawful possession of a

controlled substance with intent to deliver and unlawful posses-

sion of a controlled substance. In April 2009, the court sen-

tenced defendant on his possession-with-intent-to-deliver convic-

tion to 12 years' imprisonment; finding it was an included

offense, the court did not sentence defendant on his possession

conviction. Defendant appeals, arguing the court erred by (1)

denying defendant's motion to quash arrest and suppress evidence,

(2) not inquiring into defendant's pro se claims of ineffective assistance of counsel, and (3) "sentencing" defendant to three

years' mandatory supervised release (MSR) instead of two. We

affirm.

I. BACKGROUND

In October 2008, the McLean County grand jury indicted

defendant with (1) unlawful possession of a controlled substance

with intent to deliver (720 ILCS 570/401(d)(i) (West 2008)), a

Class 2 felony, and (2) unlawful possession of a controlled

substance (720 ILCS 570/402(c) (West 2008)), a Class 4 felony.

Count I of the two-count indictment alleged defendant knowingly

and unlawfully possessed with the intent to deliver a substance

containing cocaine. Count II alleged he knowingly and unlawfully

possessed less than 15 grams of a substance containing cocaine.

The indictment indicated defendant was eligible for mandatory

Class X sentencing on count I and extended-term sentencing on

count II.

A. Defendant's Motion To Quash Arrest and Suppress Evidence

In December 2008, defendant filed a motion to quash

arrest and suppress evidence. In January 2009, the trial court

held a hearing on defendant's motion. Defendant's evidence

consisted of the testimonies of Jason Williamson and Jason

- 2 - Tuttle.

Jason Williamson testified he was working as a police

officer with the LeRoy police department on October 17, 2008,

when he was approached on the street by Brian Fromhertz. Wil-

liamson knew Fromhertz from several prior contacts. Fromhertz

had been a suspect, a defendant, or an arrestee on several

occasions. From these prior contacts, Williamson knew Fromhertz

was a cocaine addict who, because he did not have a driver's

license, received drugs through regular deliveries. Fromhertz

had told Williamson his dealer lived in Bloomington and delivered

drugs to Fromhertz's residence in LeRoy. Williamson testified

Fromhertz's assertions his dealer was based in Bloomington had

not been confirmed through any investigation.

Fromhertz had not served as an informant before, as far

as Williamson knew, but on October 17, 2008, he expressed an

interest in setting up a sting. Fromhertz suggested he was going

to call his drug dealer and request a cocaine delivery. As

Williamson was busy making an arrest when Fromhertz approached

him, Williamson asked Fromhertz to discuss it with him later.

When Williamson arrived at the police station to continue pro-

cessing the arrest, Fromhertz was waiting for Williamson there

and repeated his suggestion. Again, Williamson told Fromhertz to

- 3 - wait so they could discuss Fromhertz's proposal later. Approxi-

mately 20 or 30 minutes later, Williamson received a phone call

from Fromhertz. Fromhertz told Williamson he had called his

dealer in Bloomington, who was on the way to LeRoy to deliver

drugs to Fromhertz. As Williamson was still processing the

arrest, Williamson called Tuttle, a McLean County sheriff's

deputy, gave him Fromhertz's phone number, and asked him to

address Fromhertz's complaint. Throughout this process, William-

son was unaware of Fromhertz's motives for seeking police inter-

vention in the drug transaction.

Later, after processing the arrest, Williamson was

present at Fromhertz's residence when defendant was arrested

there. A vehicle had been stopped for suspected involvement in

Fromhertz's drug transaction. Williamson spoke with the driver

while Tuttle spoke with defendant, who was the front-seat passen-

ger. Although he knew a search of the vehicle was conducted,

Williamson could not recall whether any contraband had been found

as a result of the search.

After placing the driver under temporary custody,

Williamson observed a search of defendant's mouth. Williamson

heard Tuttle ask defendant what was in his mouth and observed

Tuttle grab defendant to prevent him from swallowing the contents

- 4 - of his mouth and tell him "to spit it out." Williamson could not

remember Tuttle's physical contact with defendant in detail but

observed Tuttle grab defendant and defendant spit out several

Baggies of suspected crack cocaine.

On cross-examination, Williamson clarified what he had

told Tuttle during their initial phone conversation about Wil-

liamson's October 17, 2008, contact with Fromhertz. Williamson

specified he told Tuttle he knew (1) Fromhertz did not have a

driver's license and was unable to drive, (2) Fromhertz was a

habitual cocaine user, (3) Fromhertz had told LeRoy police he

received his cocaine from people in Bloomington, and (4)

Fromhertz was expecting a cocaine delivery from those people that

evening.

Tuttle testified he was a deputy with the McLean County

sheriff's department on October 17, 2008. Tuttle knew Fromhertz

from prior contacts when Fromhertz lived in Bloomington. Al-

though he did not know Fromhertz was a drug addict, Tuttle knew

Fromhertz associated with "those types of people."

On October 17, 2008, Tuttle had a series of phone

conversations with Williamson and Fromhertz. Initially, William-

son called Tuttle and requested him to call Fromhertz about a

possible drug transaction with some people from Bloomington.

- 5 - Williamson did not tell Tuttle Fromhertz had already arranged the

delivery. Williamson gave Tuttle Fromhertz's phone number.

Tuttle called Fromhertz. Fromhertz said he had ar-

ranged a cocaine delivery, which was in progress. He expected

the drugs to be delivered in a vehicle containing a white woman,

a white man, and a black man. He said his contact, the white

man, went by "T.J." Tuttle testified Fromhertz seemed "pretty

scared." Fromhertz told Tuttle he did not have $400 to pay for

the drugs being delivered. He expected the delivery to arrive in

approximately 15 minutes. Tuttle and another deputy left

Bloomington toward LeRoy.

When Tuttle was exiting I-74 in LeRoy, Tuttle received

a second call from Fromhertz. Fromhertz said he had just talked

to T.J., who said he was exiting I-74 in LeRoy. Tuttle could

observe there were only three vehicles exiting I-74 in LeRoy at

that time: his car, the other deputy's car, and a third car

behind theirs. Tuttle and the other deputy exited toward

Fromhertz's residence and pulled into a gas station to allow the

third car to pass. When it passed, Tuttle observed there were

three people in the car. He identified the driver was a white

woman and the front-seat passenger was a black man but could not

identify the race or gender of the backseat passenger. Tuttle

- 6 - and the other deputy followed the car.

Tuttle called Fromhertz with a description of the

vehicle. Tuttle asked Fromhertz whether that was the vehicle

Fromhertz expected, but Fromhertz could not say based on the

car's description. Fromhertz told Tuttle if the car parked in

the lot behind Fromhertz's apartment building, then it was the

correct car. Tuttle followed the car and observed it park

"directly" behind Fromhertz's apartment. Tuttle parked his car

perpendicular to the suspect car with his lights illuminating its

passenger compartment. At that point, Tuttle was able to iden-

tify the rear passenger as a white man. Tuttle testified he was

99% certain the suspect car was the one being used to deliver

drugs to Fromhertz.

Tuttle, the other deputy, and Williamson approached the

car. They obtained the names of each person in the car. The

white man in the backseat was named Thomas J. Tillman. Tuttle

began questioning defendant, the front-seat passenger. Tuttle

asked defendant what he and the other people in the car were

doing. Defendant gestured toward Tillman and said they were

visiting one of Tillman's friends. Tuttle asked Tillman what his

friend's name was, and Tillman said his friend's name was Brian.

At that point, the officers requested the three people

- 7 - get out of the car. Defendant was placed in restraints. Tuttle

conducted a pat-down search of defendant's person, looking for

weapons and "possibly drugs." Tuttle did not find any weapons or

drugs on defendant's person. A search of the vehicle was also

conducted, but no contraband was found.

Tuttle called Fromhertz to get an identification.

Looking from his apartment window, Fromhertz identified Tillman

as T.J., his contact. Fromhertz could not recognize either

defendant or the driver but reported he knew T.J. was an interme-

diary between drug purchasers and a black, male drug dealer.

Tuttle told Fromhertz the police could not find any drugs on the

suspects or in their car and asked him where the cocaine was

ordinarily located on their person when he bought it from them.

Fromhertz told Tuttle to check the suspects' mouths.

Tuttle approached Tillman first. He shone a flashlight

at Tillman's mouth and asked him to open his mouth and lift his

tongue. Tillman complied, and Tuttle did not observe any drugs

or anything suspicious about the way Tillman performed the test.

Tuttle next shone the flashlight at defendant and asked him to

open his mouth and lift his tongue. Defendant complied. When he

opened his mouth and stuck his tongue out, defendant kept his

upper lip tucked under his upper teeth and Tuttle suspected there

- 8 - was an object behind his upper lip. Defendant was not giving

Tuttle a full view of what was in his mouth. Based on his

experience performing jail-intake searches, Tuttle recognized

defendant's behavior as suspicious of concealing contraband.

According to Tuttle, people undergoing this search ordinarily

open their mouths wide and expose their upper and lower teeth.

At that point, Tuttle made physical contact with

defendant to determine the nature of the object defendant was

concealing. Tuttle "pinched" defendant's upper lip with his

thumb and forefinger. From the touch, Tuttle "could tell" there

was an object there. Tuttle believed the object was contraband.

He told defendant "to spit it out." Defendant said, "[O]kay, I'm

going to give it to you." He spat out one plastic Baggie con-

taining suspected cocaine. Tuttle could tell there were more

objects concealed behind defendant's upper lip. He observed

defendant sucking in his cheeks, apparently to "work up enough

saliva to swallow" the remaining contents. Tuttle reached out

with his pinky finger in an attempt to reach in between defen-

dant's lip and gums to remove the remaining contraband. Defen-

dant jerked away. "[S]omewhat of a struggle" ensued. Eventu-

ally, several more Baggies of suspected cocaine were produced

from defendant's mouth. Tuttle estimated 15 minutes elapsed from

- 9 - his initial contact with the suspect vehicle in Fromhertz's

parking lot to his discovery of contraband on defendant's person.

Although he did not know it when he was searching defendant,

sometime later, Tuttle learned defendant had been on MSR, or what

used to be known as parole, at the time of these events.

Following the evidence, the trial court heard the

parties' arguments on defendant's motion to quash arrest and

suppress evidence. Defendant argued Fromhertz's information was

not sufficiently reliable to provide police a reasonable,

articulable suspicion or probable cause justifying either the

initial restriction of defendant's mobility or the search of his

mouth resulting in the seizure of contraband. Further, defendant

argued the search of defendant's mouth--particularly, the use of

force and compulsion in the search--was not justified by defen-

dant's status as a parolee.

The State argued the initial investigatory stop or

detention of defendant and the vehicle he occupied were supported

by a reasonable suspicion based on Fromhertz's information.

Further, the State argued, as a parolee, defendant (1) lacked

grounds to challenge the search of his mouth and (2) enjoyed only

a limited expectation of privacy such that the search of his

mouth need be supported only by a reasonable suspicion, which

- 10 - Tuttle acquired before conducting the search. Alternatively, the

State contended Tuttle had probable cause to search defendant's

mouth based on Fromhertz's information and Tuttle's observation.

The trial court denied defendant's motion to quash

arrest and suppress evidence. The court found the officers

initiated a Terry investigation (see Terry v. Ohio, 392 U.S. 1

(1968)) when they approached the suspect vehicle and questioned

the passengers. It concluded this stop was supported by an

articulable suspicion the passengers in the car were involved in

an ongoing crime based on Fromhertz's information, which the

officers independently confirmed by observing the vehicle. With

respect to the search of defendant's person, the court concluded

defendant, as a parolee, had a reduced expectation of privacy.

Quoting People v. Wilson, 228 Ill. 2d 35, 45, 885 N.E.2d 1033,

1039 (2008), the court stated, "[T]he Fourth Amendment does not

prohibit a police officer from conducting a suspicionless search

of a parolee." Further, the court concluded whether the officer

performing the search has prior knowledge of the parolee's status

is irrelevant to the determination of whether a suspicionless

search of a parolee is justified. Based on these findings and

conclusions, the court denied defendant's motion to quash arrest

and suppress evidence.

- 11 - B. Defendant's Pro Se Allegations of Ineffective Assistance of Trial Counsel

Throughout the proceedings against him in this case, on

several occasions, defendant raised questions regarding the

performance of his trial counsel and his desire either to obtain

substitute counsel or to proceed pro se.

On November 21, 2008, after counsel had been appointed

for defendant, defendant filed a pro se motion to dismiss.

Defendant's motion was addressed that same day at a status

hearing. Defense counsel requested the motion be made part of

the record but declined to adopt it since he found it was un-

founded. The trial court admonished defendant determinations of

trial strategy were left to his appointed attorney. Defendant

then requested substitution of counsel, claiming a "conflict of

interest" with appointed counsel, stating, "We don't agree on

anything." The court explained defendant's disagreement with

trial counsel did not constitute a conflict of interest and

allowed a continuance for defendant to request a different

attorney through the public defender's office.

On December 3, 2008, defendant appeared before the

trial court for another status hearing. Defense counsel noted

defendant's request for a different attorney from the public

- 12 - defender's office was denied. The court admonished defendant it

considered defendant's appointed counsel "very thorough and

efficient" and "eminently qualified" to represent defendant in

his case. The court gave defendant some time to speak with his

attorney. Later, when the court recalled defendant's case and

inquired into its status, defense counsel indicated a continuance

would possibly be beneficial. Defendant interjected, "I asked

you to file a motion to suppress evidence, brother. That's all I

asked you." The court set a new status hearing.

On December 5, 2008, a letter from defendant to his

attorney was accepted into the trial court file. The letter was

dated November 28, 2008, and was notarized on December 2, 2008.

In it, defendant requested counsel prepare a motion to suppress

and a motion for a "Bill of Particulars."

Also on December 5, 2008, a letter dated December 1,

2008, and notarized December 2, 2008, from defendant to the trial

court was filed. In this letter, defendant again requested a

substitution of his trial counsel. Defendant referred to coun-

sel's request to incorporate defendant's pro se motion to dismiss

into the record in case of an appeal as "criminal." He com-

plained counsel held the opinion a motion to dismiss or a motion

to suppress would be unfounded. He asserted the court was able

- 13 - to "seek the replacement of any attorney whenever you witness the

accused['s] rights before the court being infringed upon." A

second copy of this letter was filed on December 9, 2008.

On December 15, 2008, defendant's pro se motion to

suppress was filed. On December 29, 2008, defendant filed a pro

se "MOTION OF INEFFECTIVE COUNSEL'S [sic]," again apparently

alleging a "conflict of interest" with his appointed counsel.

Also on December 29, 2008, defendant appeared before

the trial court for another status hearing. Defense counsel

indicated defendant requested to represent himself. Defendant

clarified he preferred to be represented by a different attorney

but, if his options were to represent himself or be represented

by his present appointed counsel, he would choose to proceed pro

se. Defendant later stated of his attorney, "[W]e just con-

stantly have a conflict of interest." When the court asked him

whether he meant he disagreed with his attorney's advice, defen-

dant replied, "The only advice he gave me is to cop out." The

court admonished defendant it was familiar with defense counsel's

work and knew him to be accomplished, experienced, and capable of

representing defendant well. Defendant stated he wished to

proceed pro se "[i]f that's the only way I can get you to grant

this motion to suppress." After defendant again stated his

- 14 - intention to represent himself, defense counsel explained he had

prepared a motion to quash arrest and suppress evidence. He and

defendant disagreed as to the basis for a motion to suppress, but

counsel believed there were grounds to argue for suppression, and

counsel was prepared to file the motion if defendant's request to

proceed pro se were withdrawn or denied. Upon counsel's repre-

sentations, defendant agreed to withdraw his motion to represent

himself. Defendant's trial counsel thereafter filed the motion

to quash arrest and suppress evidence, the proceedings on which

are detailed above.

On March 2, 2009, after a bench trial, the trial court

found defendant guilty and set a sentencing hearing for April 17,

2009. Between his conviction and sentencing, several documents

drafted by defendant pro se were accepted into the court's file,

including a "MOTION OF RECONSIDER GUILTY VERDICK [sic and] NOTICE

OF APPEAL," letters to the circuit clerk requesting certain

documents be filed and forwarded to the trial judge and the State

and requesting copies of trial transcripts, a "MOTION FOR NEW

TRIAL," another "NOTICE OF APPEAL," another "MOTION OF RECONSIDER

GUILTY VERDICK [sic]," and two letters from defendant to the

court, identical copies of one of which were filed March 13,

March 17, and March 20, 2009.

- 15 - In one undated letter to the trial court, file stamped

March 27, 2009, and containing a notary public's seal but not her

signature, defendant raised several contentions of error involv-

ing his representation by appointed counsel. Defendant claimed

the court violated a canon of judicial conduct regarding a

defendant's right to be heard by telling defendant it "could not

accept any legal documents from [him] because [he] had a [sic]

attorney." Defendant complained the court "knew" he and his

attorney "was [sic] not seeing eye to eye through[]out the

duration of this proceeding, yet *** still refused to accept

legal document [sic] from [him] that can lawfully prove [his]

innocence." Defendant further asserted the court violated a

canon of judicial conduct requiring judges to "be faithful to the

law and maintain professional competence in it" and "be unswayed

by partisan interests, public clamor, or fear of criticism."

With respect to this alleged violation, defendant stated,

"My attorney *** did not even attempt to

defende [sic] me. You and I both know that

for if he did I'll [sic] be at home with my

wife right now instead of here pleading my

case to you. If he would of [sic] done the

paper[]work like I lawfully requested of him

- 16 - you would of [sic] looked at them, but

becouse [sic] he did not you would not even

look at the facts and evidence of this case."

Defendant also claimed the court violated a canon requiring a

judge with knowledge of a violation of the judicial canons or the

rules of lawyer ethics to initiate disciplinary matters. Defen-

dant claimed his attorney "was not trying to do anything for

[him] and this is irrefutable of [sic] the record." "You just

continue to be bias [sic] toward me," defendant wrote the court,

"by ignore [sic] me and saying [defense counsel] is a good

attorney."

On April 17, 2009, the trial court held a sentencing

hearing. The court noted defendant's pro se filings. The court

stated it had reviewed the filings "simply to see what they were"

but had not "read through all of them." The court asked defense

counsel whether he planned to adopt any of them. Defense counsel

requested the documents titled as notices of appeal or motions

for reconsideration of the verdict be ignored. Counsel adopted

defendant's March 17, 2009, "MOTION FOR NEW TRIAL" and the

accompanying copy of defendant's letter to the court filed that

same day, which counsel believed presented an independent basis

for a new trial. After arguments based on these adopted pro se

- 17 - filings requesting a new trial, the court denied defendant's

motion, noting it had considered all of the arguments contained

in the documents, some of which counsel had not specifically

addressed. The court proceeded to sentencing.

On April 21, 2009, defendant's attorney filed a motion

to reconsider sentence, asserting the sentence was excessive. On

August 7, 2009, the trial court held a hearing on defendant's

motion. Following arguments, the court denied defendant's motion

and admonished defendant of his appellate rights. On defendant's

behalf, the court ordered a notice of appeal be prepared and

appointed the office of the State Appellate Defender (OSAD) as

counsel on appeal. When the court asked defendant whether he had

any questions about the appellate process, defendant requested a

continuance of posttrial procedures and asked the court to

dismiss his attorney and appoint new counsel "to prepare [his]

post-trial motions and raise issues for the Appellate Court."

The court clarified OSAD would be defendant's attorney for the

remainder of proceedings and would advise him going forward.

C. Trial and Sentencing

On February 6 and March 2, 2009, defendant was tried in

a two-day bench trial. The evidence consisted of testimony by

Williamson, LeRoy police officer Nathan Wilkins, McLean County

- 18 - sheriff's department detective Tim Tyler, forensic scientist Joni

Little, McLean County sheriff's deputy Joe Reidy, Tillman,

Fromhertz, and Tuttle. Defendant elected not to testify and did

not present any evidence on his behalf. Following evidence and

arguments, the trial court found defendant guilty of both counts

charged in the indictment, unlawful possession of a controlled

substance with intent to deliver and unlawful possession of a

controlled substance.

On April 17, 2009, the trial court sentenced defendant.

A presentence investigation report was admitted as evidence.

Four letters were admitted as evidence at defendant's behest.

The court considered the evidence and the parties' recommenda-

tions. It noted defendant was eligible for mandatory Class X

sentencing on his possession-with-intent-to-deliver conviction.

It found the possession conviction was for a lesser included

offense and, as such, did not warrant sentencing. It sentenced

defendant to 12 years' imprisonment. On its written sentencing

judgment, the court indicated defendant would be required to

serve three years of MSR following his prison term.

On August 7, 2009, following a hearing, the trial court

denied defendant's motion to reconsider sentence.

This appeal followed.

- 19 - II. ANALYSIS

Defendant raises three issues on appeal: (1) whether

the trial court erred by denying defendant's motion to quash

arrest and suppress evidence, (2) whether the court erred by

failing to inquire into defendant's posttrial pro se claims of

ineffective assistance of counsel, and (3) whether the court

erred by "sentencing" defendant to three years' MSR instead of

two. We consider each argument in turn.

A. Suppression of Evidence

First, defendant contends the trial court erred by

denying his motion to quash arrest and suppress evidence.

Specifically, defendant argues the initial detention and investi-

gation of defendant were not supported by a reasonable,

articulable suspicion and the search of defendant's person was

not supported by probable cause. Further, defendant argues the

search was not justified by defendant's status as parolee as the

officer performing the search did not know defendant was on MSR

at the time of the search. The State responds the initial

detention was justified because Fromhertz's information gave

officers a reasonable, articulable suspicion defendant was

involved in an ongoing crime. Further, the State maintains

defendant, as a parolee, enjoyed a lower expectation of privacy

- 20 - such that only a reasonable suspicion was needed to justify the

search of defendant's person. Alternatively, the State contends

the seizure of contraband was made pursuant to a lawful search

incident to arrest which, in turn, was supported by probable

cause based on Fromhertz's verified information. We conclude the

search in which the evidence defendant seeks to suppress was

seized was permissible.

1. The Fourth Amendment and Terry

The fourth amendment to the United States Constitution

provides, "The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated***." U.S. Const., amend. IV; see

also Ill. Const. 1970, art. I, §6 ("The people shall have the

right to be secure in their persons, houses, papers and other

possessions against unreasonable searches[ and] seizures***.").

This amendment applies to the states through the due-process

clause of the fourteenth amendment. Wilson, 228 Ill. 2d at 40,

885 N.E.2d at 1037. The fourth-amendment right exists "wherever

an individual may harbor a reasonable 'expectation of privacy'

[citation]." Terry, 392 U.S. at 9. The fourth amendment applies

to all seizures of a person, even those involving only a brief

detention. People v. Thomas, 198 Ill. 2d 103, 108, 759 N.E.2d

- 21 - 899, 902 (2001).

The specific incidents of the fourth amendment "must be

shaped by the context in which it is asserted. For what the

Constitution forbids is not all searches and seizures, but

unreasonable searches and seizures." (Internal quotation marks

omitted.) Terry, 392 U.S. at 9. "Reasonableness under the

fourth amendment generally requires a warrant supported by

probable cause." Thomas, 198 Ill. 2d at 108, 759 N.E.2d at 902.

In Terry, however, the United States Supreme Court recognized an

exception to the warrant requirement for brief investigatory

detentions in certain circumstances. Id. at 108-09, 759 N.E.2d

at 902. Under Terry, "a police officer may briefly stop a person

for temporary questioning if the officer reasonably believes that

the person has committed, or is about to commit, a crime." Id.

at 109, 759 N.E.2d at 902. Determining whether such a stop is

reasonable under the fourth amendment involves a dual inquiry; a

court must assess "whether the officer's action was justified at

its inception, and whether it was reasonably related in scope to

the circumstances which justified the interference in the first

place." Terry, 392 U.S. at 19-20.

2. Initial Detention

In this case, the parties initially dispute whether

- 22 - Fromhertz's information provided a sufficient basis for the

police to detain defendant. We agree with the State the initial

contact between law-enforcement authorities and defendant did not

constitute an unreasonable seizure.

First, we must consider whether and when defendant was

seized within the meaning of the fourth amendment "[f]or if there

was no seizure, then the fourth amendment was not implicated at

that point." Thomas, 198 Ill. 2d at 111, 759 N.E.2d at 903.

Both parties assert defendant was seized when police officers

approached the vehicle defendant occupied and began questioning

defendant and the driver. We agree. "A seizure occurs when, by

physical force or a show of authority, a police officer limits a

citizen's liberty. [Citation.] More plainly, a police officer

'seizes' a person when he or she accosts that person and denies

that person the freedom to walk away." People v. Leggions, 382

Ill. App. 3d 1129, 1132, 890 N.E.2d 700, 704 (2008). Here, a

reasonable person in defendant's position would have felt he

lacked the freedom to discontinue contact with the police when

two squad cars blocked the vehicle in which defendant sat and two

officers positioned themselves on either side of the car and

engaged the passengers in an investigatory conversation. This

encounter was akin to a traffic stop, which constitutes a seizure

- 23 - for fourth-amendment purposes. People v. Bunch, 207 Ill. 2d 7,

13-14, 796 N.E.2d 1024, 1029 (2003).

Next, we must determine whether this seizure was

reasonable. Under Terry, a brief investigatory detention is

justified at its inception if the police officer effecting the

stop can "point to specific and articulable facts which, taken

together with rational inferences therefrom, reasonably warrant

that intrusion." Thomas, 198 Ill. 2d at 109, 759 N.E.2d at 902.

The Supreme Court of Illinois has provided further guidance about

Terry stops, as follows:

"We have previously held that a totality-of-

circumstances approach will achieve a fairer

balance between public and private interests.

[Citation.] The central issue is *** whether

the information, taken in its totality, and

interpreted not by technical legal rules but

by factual and practical commonsense consid-

erations, would lead a reasonable and prudent

person to believe that the person stopped had

committed an offense." (Internal quotation

marks omitted.) People v. Ledesma, 206 Ill.

2d 571, 583, 795 N.E.2d 253, 262 (2003),

- 24 - overruled on other grounds by People v.

Pitman, 211 Ill. 2d 502, 813 N.E.2d 93

(2004).

Further, the supreme court has stated:

"Viewed 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 support-

ing 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 hind-

sight, but instead should be considered from

the perspective of a reasonable officer at

the time that the situation confronted him or

her." Thomas, 198 Ill. 2d at 110, 759 N.E.2d

at 903.

"In evaluating whether reasonable suspicion exists, a court

should objectively consider whether the information known to the

officer at the time of the stop would warrant a person of reason-

able caution to believe a stop was necessary to investigate the

possibility of criminal activity." (Internal quotation marks

- 25 - omitted.) People v. Shafer, 372 Ill. App. 3d 1044, 1048-49, 868

N.E.2d 359, 362 (2007).

Here, the parties dispute whether the information

provided by Fromhertz gave rise to reasonable suspicion justify-

ing a Terry stop. In evaluating whether a stop is warranted, a

court "should consider the quality and content of information

known to officers as well as the reliability of the source of the

information." (Internal quotation marks omitted.) Id. at 1049,

868 N.E.2d at 362. Information provided to police by a third-

party informant may give rise to reasonable suspicion "if the

information is reliable and allows an officer to reasonably infer

that a person was involved in criminal activity." (Internal

quotation marks omitted.) Id. at 1049, 868 N.E.2d at 362-63.

"In determining whether an informant's statements provide suffi-

cient basis for a Terry stop, a reviewing court should consider

the informant's veracity, reliability, and basis of knowledge."

People v. Sparks, 315 Ill. App. 3d 786, 792, 734 N.E.2d 216, 221

(2000).

Not all informants' tips merit the same treatment as

"tips may vary greatly in their value and reliability and *** one

simple rule will not cover every situation." In re J.J., 183

Ill. App. 3d 381, 385, 539 N.E.2d 764, 766 (1989); see also id.

- 26 - at 385-86, 539 N.E.2d at 766 ("Where some tips, completely

lacking in indicia of reliability, would warrant either no police

response or require further investigation before a stop would be

justified, other situations, such as when a victim of a crime

seeks immediate police aid and describes his assailant or when a

credible informant warns of a specific impending crime, would

justify the police making an appropriate response.").

Courts in Illinois have noted various indicia of

reliability for evaluating informants' tips although, due to the

commonsense nature of the inquiry, no list of such indicia can be

exhaustive. "[C]ourts may give greater weight to information

provided by an eyewitness or victim of a crime than they would to

information provided by persons who do not fall into those

categories." Shafer, 372 Ill. App. 3d at 1049, 868 N.E.2d at

363; see also id. ("a strong inference that a person is a direct

witness to the offense is more indicative of reliability than a

weak inference that the tipster had a source of inside informa-

tion"). Information is more credible if the informant implicates

himself in the criminal activity he is reporting. Sparks, 315

Ill. App. 3d at 794, 734 N.E.2d at 223. Information from an

informant whose identity is known to police and who is available

for cross-examination is generally more credible than an anony-

- 27 - mous tip or one from a confidential source. See Shafer, 372 Ill.

App. 3d at 1050, 868 N.E.2d at 364 (discussing the enhanced

reliability of tips made to police emergency numbers, which "are

not truly anonymous even when [the callers] fail to identify

themselves by name" (internal quotation marks omitted)); id. at

1050-51, 868 N.E.2d at 364 (noting criminal liability for making

false reports to police "lends reliability to" information

obtained from identifiable informants (internal quotation marks

omitted) (quoting Florida v. J.L., 529 U.S. 266, 276 (2000)

(Kennedy, J., concurring joined by Rehnquist, CJ.))); cf. Sparks,

315 Ill. App. 3d at 795, 734 N.E.2d at 223 (finding officers'

knowledge of a confidential informant's identity was not an

indicum of reliability as the informant's identity was not made

known to the defendant and the informant would not be subjected

to cross-examination). A tip providing predictive information

and readily observable details will be deemed more reliable if

these are confirmed or corroborated by the police. See, e.g.,

Alabama v. White, 496 U.S. 325, 331-32 (1990) (finding signifi-

cant aspects of the informant's story, especially those predict-

ing the defendant's future behavior, were sufficiently corrobo-

rated by the police to furnish reasonable suspicion); cf. J.L.,

529 U.S. at 271 ("The anonymous call *** provided no predictive

- 28 - information and therefore left the police without means to test

the informant's knowledge or credibility.").

Under the totality of the circumstances of this case,

Fromhertz's tip and the investigatory steps taken by police were

sufficient to justify defendant's detention in its inception.

Police obtained a reasonable suspicion of defendant's involvement

in an ongoing crime from several particularly relevant circum-

stances. First, Williamson and Tuttle knew Fromhertz from prior

contacts. Although he had not served as an informant and his

veracity had not been tested in such a context before,

Fromhertz's veracity could be at least minimally measured insofar

as the information provided in this case was consistent with

information he had told Williamson in the past and information

known by Williamson and Tuttle based on their own observations.

Williamson was aware of Fromhertz's cocaine addiction prior to

October 17, 2008, and Fromhertz had told him he obtained drugs

from people in Bloomington. Tuttle knew Fromhertz used to live

in Bloomington. Thus, Tuttle and Williamson could verify

Fromhertz's report he was buying drugs from a person traveling

from Bloomington was consistent with what they already knew about

him. Although Fromhertz's earlier statement his cocaine dealer

was based in Bloomington had not been independently investigated

- 29 - or confirmed, the consistency of his statements gave Williamson

and Tuttle some indication of his veracity as an informant. Cf.

Sparks, 315 Ill. App. 3d at 794, 734 N.E.2d at 223 (concluding,

since the informant had not been used as such before, the police

officer effecting the Terry stop "could not accurately judge the

informant's veracity").

Second, Fromhertz's identity was known to Williamson

and Tuttle and was never concealed from defendant. This case is

therefore distinguishable from cases involving anonymous tips and

confidential sources, where greater indicia of reliability are

required for a tip to supply reasonable suspicion. Indeed,

Williamson and Tuttle identified Fromhertz as the source of their

information at the suppression hearing and, later, Fromhertz

testified at defendant's trial and defendant cross-examined him.

Third, Fromhertz identified the basis of his informa-

tion in his initial contacts with Williamson, stating he himself

was going to be involved in a drug transaction. The identifica-

tion of the basis of information is significant in itself.

Further, Fromhertz's implication of himself in the crime he was

reporting lends reliability to his information.

Fourth, the remarkable circumstances of Fromhertz's tip

demanded immediate police involvement. The crime Fromhertz

- 30 - reported was expected to occur within approximately 15 minutes of

his initial contact with Tuttle, who was approximately 15 minutes

away from the site of the drug transaction. Further, Fromhertz

was potentially in personal danger if Tuttle was unable to

intervene; Fromhertz sounded noticeably afraid when they spoke,

and a violent confrontation was possible if his dealer became

aware Fromhertz did not intend to pay for the drugs and had

sought intervention by the police. Needless to say, Fromhertz's

proposed sting created a unique situation "so far from the

ordinary that any competent officer would be expected to act

quickly." Thomas, 198 Ill. 2d at 110, 759 N.E.2d at 903.

Fifth, Fromhertz provided Williamson and Tuttle with

detailed predictive information, which they confirmed before

detaining defendant and which indicated his possession of inside

information. This predictive information included the race,

gender, and number of occupants of a car traveling from

Bloomington in the direction of LeRoy at a specific approximate

time, the precise location of the car at the I-74 exit at a

specific time, and the car's destination in the parking lot at

Fromhertz's apartment building. All of these details were

confirmed by police before they initiated the Terry stop.

Tuttle's identification of the suspect vehicle immediately after

- 31 - Fromhertz reported its location based on a phone conversation

with one of its occupants is particularly indicative of the

reliability of Fromhertz's information. Through these

corroborated predictive details, Fromhertz demonstrated he had

inside information about the criminal activity he was reporting.

Under these circumstances, defendant's detention was

supported by a reasonable suspicion of his involvement in an

ongoing crime.

3. Scope of Investigation & Probable Cause

Defendant argues, even if defendant's seizure was

reasonable in its inception, the search resulting in the

discovery of contraband exceeded the scope of any permissible

investigation under Terry. As the officers who effected the

Terry stop obtained probable cause to arrest defendant during the

permissible course of their investigation, we conclude the search

of defendant's mouth was permissible.

The second inquiry under Terry is whether the police

activity in question "was reasonably related in scope to the

circumstances which justified the interference in the first

place." Terry, 392 U.S. at 19-20. This requires us to consider

"the length of the detention and the manner in which it was

carried out." (Emphases omitted.) Bunch, 207 Ill. 2d at 14, 796

- 32 - N.E.2d at 1029. "[A]n investigative detention must be temporary

and last no longer than is necessary to effectuate the purpose of

the stop, and the investigative methods employed should be the

least intrusive means reasonably available to verify or dispel

the officer's suspicion in a short period of time." (Internal

quotation marks omitted.) Id. Generally, while a pat-down

search or frisk of the detainee to detect concealed weapons is

permissible where an officer has reason to believe the detainee

is armed and dangerous, a search for evidence during a Terry stop

violates the fourth amendment. People v. Galvin, 127 Ill. 2d

153, 170, 535 N.E.2d 837, 845 (1989).

Defendant contends the search of his mouth exceeded the

limited scope of a Terry stop. The State responds the officers

obtained probable cause to arrest defendant during the course of

their investigation and the subsequent search was a permissible

search incident to arrest. As we conclude the search of

defendant's mouth was an allowable search incident to an arrest

which was, in turn, supported by probable cause developed within

the permissible scope of the Terry stop, we need not consider

defendant's argument the search was impermissible under a Terry

analysis.

"In order to make a valid, warrantless arrest, a police

- 33 - officer must have probable cause to arrest." People v. Love, 199

Ill. 2d 269, 278, 769 N.E.2d 10, 16 (2002). "Probable cause

exists for an arrest when the totality of the facts and

circumstances known to the officers is such that a reasonably

prudent person would believe that the suspect is committing or

has committed a crime." In re D.W., 341 Ill. App. 3d 517, 523,

793 N.E.2d 46, 51 (2003). Though a higher standard than

reasonable suspicion (Leggions, 382 Ill. App. 3d at 1133, 890

N.E.2d at 705), probable cause does not require evidence

sufficient to convict (People v. Foster, 119 Ill. 2d 69, 83, 518

N.E.2d 82, 87 (1987)). As with reasonable suspicion, whether

probable cause to arrest exists is a practical, commonsense

determination. As the supreme court observed in People v.

Cabrera, 116 Ill. 2d 474, 485, 508 N.E.2d 708, 712 (1987):

"The courts, in striking a balance between

the need to protect citizens from invasions

of their privacy at the whim of police

officers and the countervailing need to allow

leeway for efficient enforcement of the laws,

are sensitive to the fact that policemen must

often make their decisions to arrest or not

to arrest under ambiguous circumstances and

- 34 - must exercise their judgment, at the risk of

making a mistake. In dealing with probable

cause, *** as the very name implies, we deal

with probabilities. These are not technical;

they are factual and practical considerations

of everyday life on which reasonable and

prudent men, not legal technicians, act."

(Internal quotation marks omitted.)

Like reasonable suspicion in the Terry context,

probable cause can be established as the result of an informant's

tip and verification of the tip by police. D.W., 341 Ill. App.

3d at 523, 793 N.E.2d at 51. The considerations for evaluating

an informant's tip in the context of probable cause are the same

as in the context of reasonable suspicion. See id. ("The

informant's veracity, reliability and basis of knowledge are

determinative. [Citation.] One indicium of reliability of

information exists when the facts learned through police

investigation independently verify a substantial part of the

informant's tip.").

In this case, the totality of the circumstances

indicates officers developed probable cause to arrest defendant

during the course of their Terry investigation. The scope of the

- 35 - investigation in this case expanded naturally and reasonably in

response to the information the officers lawfully obtained. When

they initiated defendant's detention, Tuttle and Williamson

obtained the identities of the occupants in the suspect vehicle,

verifying the backseat passenger's initials, race, and sex were

those of Fromhertz's contact, T.J. When questioned, defendant

indicated the occupants' purpose at the apartment building where

they stopped was to visit Tillman's friend. Tillman subsequently

verified the first name of the friend they were visiting was

Brian, Fromhertz's first name. At that point, the officers

ordered the occupants to exit the vehicle and defendant was

placed in hand restraints. Both these steps are permissible as a

matter of course during a Terry stop of a vehicle. See Leggions,

382 Ill. App. 3d at 1133, 890 N.E.2d at 705 (finding the police

may, as a matter of course, order the occupants out of a vehicle

once it is lawfully stopped and the nature of the investigatory

stop is not affected merely by virtue of an officer's using

handcuffs). Further, by the time Tuttle conducted the search of

defendant's mouth, Fromhertz had positively identified Tillman as

his drug contact, clarified Tillman's role as an intermediary in

their drug transactions between himself and a black, male drug

dealer, and indicated he regularly observed drug dealers conceal

- 36 - drugs in their mouths. The latter information helped explain why

the preceding searches had not resulted in detection of the drugs

being delivered.

At least following Tuttle's final conversation with

Fromhertz, which occurred less than 15 minutes after police

initiated contact with defendant, considering the totality of the

circumstances, a reasonable person in Tuttle's position would

have been justified in the belief defendant was probably

committing a crime. As the investigation was reasonable in both

duration and scope of inquiry, we hold the officers developed

probable cause to arrest defendant in the permissible course of

the Terry stop. Accordingly, we hold the search of defendant's

mouth resulting in the seizure of the evidence defendant sought

to suppress was a valid search incident to his arrest. See

People v. Bailey, 159 Ill. 2d 498, 503, 639 N.E.2d 1278, 1280

(1994) ("It is reasonable for police to search the arrestee ***

for evidence that the arrestee could conceal or destroy."). As

we conclude the search and seizure were valid under traditional

fourth-amendment principles, we need not consider the effects of

defendant's status as a parolee on the suppression of evidence.

B. Defendant's Posttrial Allegations of Ineffective Assistance of Counsel

- 37 - Next, defendant argues the trial court erred by not

inquiring into defendant's posttrial pro se complaints of

ineffective assistance of trial counsel. Specifically, defendant

claims he was entitled to some inquiry by the court into the

allegations contained in the undated letter filed on March 27,

2009. Defendant argues the court's failure in this regard

violated People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045

(1984), and its progeny. We disagree.

In Krankel, 102 Ill. 2d at 187-88, 464 N.E.2d at 1048,

the defendant filed a posttrial pro se motion for a new trial

alleging ineffective assistance of trial counsel, and the trial

court denied his request for new counsel to assist him in arguing

his motion. The supreme court, on the recommendation of both

parties on appeal, remanded the case for a new hearing on the

motion, at which the defendant was entitled to new counsel. Id.

at 189, 464 N.E.2d at 1049; see also People v. Moore, 207 Ill. 2d

68, 77-79, 797 N.E.2d 631, 637-38 (2003) (discussing and applying

Krankel and the rules derived therefrom).

New counsel is not automatically required when a

defendant files a pro se posttrial motion alleging ineffective

assistance of counsel; rather, "the operative concern for the

reviewing court is whether the trial court conducted an adequate

- 38 - inquiry into the pro se defendant's allegations of ineffective

assistance of counsel." People v. Johnson, 159 Ill. 2d 97, 125,

636 N.E.2d 485, 497 (1994). "A court can conduct such an inquiry

in one or more of the following three ways: (1) questioning the

trial counsel, (2) questioning the defendant, and (3) relying on

its own knowledge of the trial counsel's performance in the

trial." People v. Peacock, 359 Ill. App. 3d 326, 339, 833 N.E.2d

396, 407 (2005). Where the claim lacks merit or pertains to

matters of trial strategy, new counsel need not be appointed.

People v. Crane, 145 Ill. 2d 520, 533, 585 N.E.2d 99, 105 (1991).

Further, a defendant who fails to bring such a claim to the trial

court's attention forfeits it notwithstanding having presented it

in a letter to the court. See People v. Lewis, 165 Ill. App. 3d

97, 109, 518 N.E.2d 741, 749 (1988) ("It would also appear[] ***

that the trial judge, defendant's counsel, and the State were all

unaware of defendant's letter as no mention was made of it, and

defendant did not himself refer to it ***. [Citation.] Thus,

defendant did not pursue the matter contained in his letter and[]

*** waived any issue in this regard on appeal.").

Here, as in Lewis, defendant failed to raise his March

27, 2009, claims of ineffective assistance of trial counsel

before the trial court in subsequent appearances--namely, his

- 39 - April 17, 2009, sentencing hearing and the August 7, 2009,

hearing on his motion to reconsider sentence--despite being

present with defense counsel. Defendant thereby forfeited these

claims. See id. ("While the trial judge may, in some instances,

have a responsibility to act on letters mailed by a defendant to

the court, here, defendant subsequently appeared in court with

counsel and could have properly presented any matter to the

court.").

Moreover, were we to consider defendant's argument, we

would find it unpersuasive. Defendant's letter filed on March

27, 2009, raised two complaints with trial counsel's performance.

First, defendant complains he and his attorney did not "see eye

to eye," apparently referring to defendant's earlier complaints

regarding counsel's decision not to file a motion to dismiss or a

motion for a "Bill of Particulars." However, this alone would

not support an ineffective-assistance claim as matters of trial

strategy are left to counsel. See Crane, 145 Ill. 2d at 533, 585

N.E.2d at 105 (holding no Krankel hearing is required when a

defendant's underlying claim is related to a matter of trial

tactics). Further, defendant repeatedly complained of

disagreements between himself and his attorney. By the time

defendant raised this issue in his posttrial letter, the court

- 40 - observed defendant's concerns were addressed when (1) the court

granted defendant a continuance to allow him to apply for new

counsel through the public defender's office and (2) defense

counsel filed a motion to suppress as requested by defendant.

The court's own knowledge of these complaints and the attempts by

itself and defense counsel to resolve them would have satisfied

any inquiry into this claim which may have been required by

defendant's letter.

Second, defendant alleges a complete failure on

counsel's part to present a defense. This is clearly refuted by

the record on appeal, which shows defense counsel demonstrated

competence and diligence in, among other things, (1) preparing

and arguing pretrial and posttrial motions, (2) preserving

objections and arguments for appeal, (3) presenting opening and

closing arguments, (4) cross-examining the State's witnesses, and

(5) reasonably accommodating defendant's preference for obtaining

substitute counsel. Thus, the trial court's observation of

counsel's performance throughout the proceedings would have

satisfied any inquiry into this claim which may have been

required by defendant's posttrial letter to the court.

C. Class X Sentencing for Lesser Felonies and MSR

Finally, defendant argues the trial court erred by

- 41 - "sentencing" him to the three-year MSR term provided for a Class

X offense (see 730 ILCS 5/5-8-1(d)(1) (West 2008)).

Specifically, defendant maintains he should instead be required

to serve the two-year MSR term for Class 2 felonies (see 730 ILCS

5/5-8-1(d)(2) (West 2008)) despite receiving a Class X sentence

as a recidivist. Defendant argues this result is required by a

plain reading of the MSR statute (730 ILCS 5/5-8-1(d) (West

2008)) or, alternatively, by the doctrine of lenity. This court

has rejected these arguments in People v. Smart, 311 Ill. App. 3d

415, 418, 723 N.E.2d 1246, 1248 (2000), and People v. Lee, 397

Ill. App. 3d 1067, 1069-72, 926 N.E.2d 402, 404-06 (2010),

respectively. We decline defendant's invitation to revisit this

court's holdings in Smart and Lee. Accordingly, we hold the

court did not err by imposing the MSR term provided for a Class X

offense when it sentenced defendant as a Class X offender.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we award the State its $50

statutory assessment as costs of this appeal.

Affirmed.

- 42 -