People v. Rowell

2021 IL App (4th) 180819

Opinion

2021 IL App (4th) 180819 FILED January 26, 2021 NO. 4-18-0819 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County SHARRIEFF ROWELL, ) No. 17CF51 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Turner concurred in the judgment and opinion.

OPINION

¶1 In February 2017, the State charged defendant, Sharrieff Rowell, with one count

each of identity theft (720 ILCS 5/16-30(a)(3) (West 2016)), possession of incomplete card (id.

§ 17-42), and altered or counterfeited card (id. § 17-41(a)). The charges generally alleged that

defendant possessed blank and altered debit cards and another person’s social security number

with the intent to use it to commit a felony.

¶2 In August 2018, the trial court conducted defendant’s bench trial, at which Illinois

State Police Trooper Timothy Price testified that he stopped defendant for driving 115 miles per

hour in a 70-mile-per-hour zone on Interstate 55. Price placed defendant under arrest for speeding.

Because Price smelled cannabis in defendant’s vehicle, he and two other officers searched it. Their

search included two bags in the vehicle’s passenger compartment and its trunk. As a result of that

search, the officers discovered multiple pieces of physical evidence that were used to charge defendant with the previously described crimes. The officers found no cannabis or other drugs.

¶3 The trial court found defendant guilty of all counts and later sentenced him to prison

for concurrent terms of 2½ years, 2½ years, and 2 years.

¶4 Defendant appeals, arguing only that his trial attorney provided ineffective

assistance of counsel because he failed to move to suppress the evidence obtained from defendant’s

vehicle. Defendant contends that (1) the odor of cannabis did not justify the search or, in the

alternative, (2) even if the officers had justification to investigate the smell, they did not have

justification to search the trunk and bags. We disagree and affirm the trial court.

¶5 I. BACKGROUND

¶6 Because the only matter at issue is whether defendant’s counsel should have filed

a motion to suppress evidence, we will discuss only the information relevant to that issue.

¶7 A. The Charges

¶8 In February 2017, the State charged defendant with one count each of identity theft

(id. § 16-30(a)(3)), possession of incomplete card (id. § 17-42), and altered or counterfeited card

(id. § 17-41(a)). The charges generally alleged that defendant possessed blank and altered debit

cards and another person’s social security number with the intent to use it to commit a felony.

¶9 B. The Trial

¶ 10 In August 2018, the trial court conducted defendant’s bench trial. Price testified

that in February 2017, he stopped defendant for driving 115 miles per hour in a 70-mile-per-hour

zone on Interstate 55. The court granted the State’s motion to admit into evidence a video recording

from the dashboard camera of Price’s squad car that showed the stop.

¶ 11 The video showed that shortly after stopping the vehicle, Price placed defendant

under arrest for speeding and Price told defendant that Price “smelled weed.” Price also said he

-2- believed that “gives us probable cause to search.” Two other officers arrived and searched

defendant’s vehicle, including the trunk and “a green bag which contained a Crown Royal bag

inside of it as well as a black bag.” The “green bag was located in the front seat area. *** [T]he

black bag was located in the rear, behind the driver’s side.” From that search, the officers

discovered (1) a credit card with defendant’s name and a billing statement for that card and

(2) inside the black bag, unaltered debit cards, blank cards, a template for making engravings on

cards, and handwritten notes of names and social security numbers. The officers also found inside

the trunk a Western Union debit card and two credit cards bearing defendant’s name. The officers

did not find any cannabis or other drugs.

¶ 12 In summary, Illinois State Police Special Agent Daniel Rossiter testified that the

Western Union debit card was altered and some of the other cards did not contain a balance. The

parties stipulated that (1) one of the social security numbers that the officers discovered in the

vehicle belonged to a man who was not defendant and (2) an address for one of the cards belonged

to a man who did not apply for the card.

¶ 13 Defendant testified in his own defense and explained that he owns businesses and

a friend, who had since died, gave him the cards to help pay for business expenses. Defendant

explained that all of contents of the bags belonged to that friend.

¶ 14 The trial court found defendant guilty of all counts and later sentenced him as

earlier stated.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 Defendant appeals, arguing only that his trial attorney provided ineffective

assistance of counsel because he failed to move to suppress the evidence obtained from defendant’s

-3- vehicle. Defendant contends that (1) the odor of cannabis did not justify the search or, in the

alternative, (2) even if the officers had justification to investigate the smell, they did not have

justification to search the trunk and bags. We affirm the trial court.

¶ 18 We disagree with defendant’s arguments because (1) the law at the time of the

search clearly allowed the police to search based upon the odor of cannabis alone and (2) the trial

court record provides no basis to conclude that counsel was ineffective for not filing a motion to

suppress.

¶ 19 A. General Legal Principles Regarding Defendant’s Claim of Ineffective

Assistance of Counsel

¶ 20 1. Ineffective Assistance of Counsel

¶ 21 All defendants enjoy the constitutional right to effective assistance of counsel. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. “To prevail on a claim of ineffective

assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient and

that the deficient performance prejudiced the defendant.” (Internal quotation marks omitted.)

People v. Williams, 2020 IL App (4th) 180554, ¶ 79. However, “[a] court will not find that defense

counsel was ineffective for failing to file a meritless motion to suppress.” People v. McIntosh,

2020 IL App (5th) 170068, ¶ 54, 146 N.E.3d 813. “[T]he decision whether to file a motion to

suppress is generally ‘a matter of trial strategy, which is entitled to great deference.’ ” People v.

Peck, 2017 IL App (4th) 160410, ¶ 29, 79 N.E.3d 232 (quoting People v. Bew, 228 Ill. 2d 122,

128, 886 N.E.2d 1002, 1006 (2008)). Accordingly, this court must determine, based upon this

record, whether a motion to suppress would have been meritless. To make that determination, we

must decide whether the police had probable cause to search defendant’s vehicle.

¶ 22 2. Search and Seizure

-4- ¶ 23 All persons enjoy the right to be free from unreasonable searches and seizures. U.S.

Const., amend. IV; Ill. Const. 1970, art. I, § 6. A police officer may conduct a warrantless search

of a stopped vehicle if the officer has probable cause to believe that the vehicle contains

contraband. United States v. Ross, 456 U.S. 798, 799 (1982). “To establish probable cause, it must

be shown that the totality of the facts and circumstances known to the officer at the time of the

search would justify a reasonable person in believing that the automobile contains contraband or

evidence of criminal activity.” People v. Hill, 2020 IL 124595, ¶ 23. Probable cause “requires only

that the facts available to the officer—including the plausibility of an innocent explanation—

would warrant a reasonable man to believe there is a reasonable probability ‘that certain items may

be contraband *** or useful as evidence of a crime.’ ” Id. ¶ 24 (quoting Texas v. Brown, 460 U.S.

730, 742 (1983)).

¶ 24 3. The Law Pertaining to Cannabis in Illinois

¶ 25 In 2014, the State of Illinois legalized the possession of cannabis for people to

whom the State had granted a license to use cannabis for medical purposes. See 410 ILCS 130/1

et seq. (West 2014). In 2016, the State of Illinois passed a law stating that a licensed user of medical

cannabis “shall not be considered an unlawful user” and that medical cannabis “purchased by a

qualifying patient at a licensed dispensing organization shall be lawful products.” 410 ILCS 130/7

(West 2016). Also in 2016, the State of Illinois decriminalized the possession of less than 10 grams

of cannabis and defined possession of less than 10 grams as a “civil law violation.” 720 ILCS

550/4(a) (West 2016).

¶ 26 Earlier this year in Hill, the Illinois Supreme Court acknowledged it had the

opportunity to overrule its precedent that the smell of cannabis alone can establish probable cause

sufficient to justify the search of a vehicle. The supreme court declined to do so, explaining as

-5- follows:

“[D]efendant further requests this court to overrule People v. Stout, 106 Ill. 2d 77,

87[, 477 N.E.2d 498, 502] (1985), which held the odor of burnt cannabis without

other corroborating evidence provides an officer probable cause to search a vehicle.

Based on the record, however, we find it unnecessary to address this narrow legal

issue.” Hill, 2020 IL 124595, ¶ 15.

Accordingly, Stout remains good law and binding precedent.

¶ 27 B. The Odor of Cannabis Justified the Search of Defendant’s Vehicle

¶ 28 In this case, we must follow the lead of the Illinois Supreme Court. It is important

to recognize that the Illinois Supreme Court earlier this very year declined in Hill to overrule Stout.

Id. The Hill decision demonstrates that the holding in Stout—namely, that the scent of cannabis

alone provides probable cause for a search—was in force in 2017 at the time of the search in this

case. See id.

¶ 29 Nonetheless, defendant asks this court to conclude that defense counsel’s

performance was deficient for not filing a motion to suppress. Defendant’s contention appears to

be based upon changes in Illinois law since 2017 regarding cannabis. However, our assessment of

counsel’s performance must be based upon the facts and law known to counsel at the time

defendant claims counsel should have filed that motion. See People v. Bailey, 232 Ill. 2d 285, 299,

903 N.E.2d 409, 417 (2009). As the State correctly points out, effective assistance does not impose

a “duty of clairvoyance.” (Internal quotation marks omitted.) People v. Davis, 2014 IL App (4th)

121040, ¶ 24, 22 N.E.3d 1167. Even if Hill could be interpreted differently (which it clearly

cannot), counsel could not be ineffective for his alleged failure to act based upon a development

of the law that had not yet occurred.

-6- ¶ 30 Defendant further argues that even if the smell of cannabis justified the initial

search, the officers exceeded the scope of the search when they searched bags in the vehicle’s

passenger compartment and its trunk. However, Illinois law clearly provides that if the officers

had probable cause to search the vehicle for cannabis, they were justified in searching any

containers that had a reasonable likelihood of containing cannabis. See People v. Williams, 2013

IL App (4th) 110857, ¶ 34, 990 N.E.2d 916. This is a principle which traces back to Ross, in which

the United States Supreme Court wrote the following:

“An individual undoubtedly has a significant interest that the upholstery of his

automobile will not be ripped or a hidden compartment within it opened. These

interests must yield to the authority of a search, however, which *** does not itself

require the prior approval of a magistrate. The scope of a warrantless search based

on probable cause is no narrower—and no broader—than the scope of a search

authorized by a warrant supported by probable cause. Only the prior approval of

the magistrate is waived; the search otherwise is as the magistrate could authorize.”

Ross, 456 U.S. at 823.

¶ 31 Although the area of cannabis law is rapidly changing, the law as it stood in

February 2017 unequivocally stated that the smell of cannabis emanating from a vehicle was

sufficient justification for the police to search it, including its trunk and bags in the passenger

compartment. See id. at 821-24. Because nothing in the record suggests the search was not lawful,

defense counsel could not have performed deficiently by not filing a motion to suppress.

¶ 32 C. Problems With Claims of Ineffective Assistance of Counsel on Direct Appeal

Based Upon Counsel’s Not Filing a Motion to Suppress

¶ 33 Throughout defendant’s discussion of the search issues on appeal, defendant

-7- operates under the (likely erroneous) assumption that the facts that came out at trial are the only

facts that could have ever been presented in this case regarding the search of defendant’s vehicle.

In fact, it is entirely possible counsel may have decided to not file a motion to suppress because he

knew of facts contained in police reports or elsewhere that would obviously defeat the motion.

¶ 34 For example, the “Circumstances of Offense” section of the presentence

investigation report (PSI) suggests that there may have been facts outside of the record that may

account for why trial counsel did not file a motion to suppress. We note that “ ‘all information

appearing in a presentence report may be relied upon by the sentencing judge to the extent the

judge finds the information probative and reliable.’ ” (Emphasis in original.) People v. Hibbler,

2019 IL App (4th) 160897, ¶ 52, 129 N.E.3d 755 (quoting People v. Powell, 199 Ill. App. 3d 291,

294, 556 N.E.2d 896, 898 (1990)). The same principle justifies this court’s consideration of

information contained in the PSI for the limited purpose of speculating about what additional

evidence the State might have presented if defendant had filed a motion to suppress.

¶ 35 The PSI states that Price observed defendant’s vehicle travelling at 115 miles per

hour in a 70-mile-per-hour zone. Price pursued defendant as he left the highway on an exit ramp.

Defendant did not stop at a stop sign at the end of the ramp and proceeded onto Route 116.

Defendant was then traveling 75 miles per hour in a 50-mile-per-hour zone. Price activated his

emergency lights and stopped defendant’s vehicle. When Price approached, he smelled a “strong

odor of raw cannabis emitting from the vehicle.” Price searched defendant’s person and found

$1423 in cash.

¶ 36 Although we did not consider any of this PSI information in coming to our decision,

that information nonetheless serves as an example of information possibly (or even probably)

known to defense counsel, which may explain why counsel did not file a motion to suppress. And,

-8- of course, had counsel filed a motion to suppress and Price testified to this additional information,

none of it would have cast defendant in a favorable light at his bench trial. Filing a motion to

suppress would in effect have allowed the State to present other-crimes evidence relevant to why

the police stopped defendant’s vehicle. Combined with the essentially nonexistent chance of

success on such a motion, counsel’s decision to not file a motion to suppress under these

circumstances would reflect sound judgment.

¶ 37 The Illinois Supreme Court in Bew, 228 Ill. 2d at 133-34, explained the difficulties

facing courts of review in direct appeals when assessing claims of ineffective assistance of counsel

based upon counsel’s not filing a motion to suppress. The supreme court wrote the following:

“The record is insufficient to support either party’s argument. Because no

motion to suppress was filed, defendant was unable to argue that the evidence was

inadmissible on an alternative basis, and the State never had an opportunity to argue

its exceptions to the fourth amendment’s probable cause and warrant requirements.

In Massaro v. United States, 538 U.S. 500 *** (2003), the United States

Supreme Court recognized that ineffective assistance of counsel claims are

preferably brought on collateral review rather than on direct appeal. This is

particularly true where, as here, the record on direct appeal is insufficient to support

a claim of ineffective assistance of counsel. In Massaro, the Supreme Court rejected

a Second Circuit Court of Appeals rule that required a defendant to bring a claim

for ineffective assistance on direct review or else forfeit that claim. In doing so, the

Court reasoned that ‘[w]hen an ineffective-assistance claim is brought on direct

appeal, appellate counsel and the court must proceed on a trial record not developed

precisely for the object of litigating or preserving the claim and thus often

-9- incomplete or inadequate for this purpose.’ ” Id. at 134 (quoting Massaro v. United

States, 538 U.S. 500, 504-05 (2003)).

The present case reveals the wisdom of the concerns expressed by the supreme court in Bew.

¶ 38 This is not to say that an argument on direct appeal that trial counsel was ineffective

for not filing a motion to suppress can never be successful. However, it would be quite rare for a

record on direct appeal to affirmatively establish that counsel did not file a motion to suppress

because of counsel’s error of judgment or understanding. An example of a case in which the record

was adequate to justify a claim on direct appeal that defense counsel was ineffective for failing to

file a motion to suppress is Peck.

¶ 39 In Peck, this court concluded counsel was ineffective for failing to file a motion to

suppress because the record showed the police violated Miranda v. Arizona, 384 U.S. 436 (1966),

by continuing to question the defendant after he invoked his Miranda rights. Peck, 2017 IL App

(4th) 160410, ¶ 38. This court wrote that “[c]ounsel’s failure to file this motion was not the result

of a tactical decision but of a fundamental misjudgment. Counsel’s testimony at the Krankel

hearing demonstrated she erroneously believed a motion to suppress would be without merit

because defendant reinitiated the conversation with police.” Id.; see People v. Krankel, 102 Ill. 2d

181, 464 N.E.2d 1045 (1984). In other words, unlike in this case, the record in Peck affirmatively

established the facts necessary to conclude counsel performed deficiently.

¶ 40 The record in this case also suggests that even if the officers lacked probable cause

to search the vehicle based on the smell of cannabis, the inevitable discovery doctrine would likely

apply. “This exception [to the exclusionary rule] permits evidence, that would otherwise be

inadmissible at trial, to be admitted where the State can show that such evidence would inevitably

have been discovered without reference to the police error or misconduct.” (Internal quotation

- 10 - marks omitted.) People v. Sutherland, 223 Ill. 2d 187, 227-28, 860 N.E.2d 178, 209 (2006).

¶ 41 Price testified he arrested defendant for driving 115 miles per hour in a 70-mile-

per-hour zone. That is a misdemeanor charge, not a mere traffic ticket (see 625 ILCS 5/11-601.5(b)

(West 2016)), and Price’s testimony suggests that he took defendant into custody. If that inference

is correct, then it is unlikely that the police would have simply abandoned defendant’s vehicle on

the side of the road. Instead, they likely would have had it towed, and as often happens when a

vehicle is towed, the contents of the vehicle would have been subject to an inventory search by the

police. “Inventory searches are another exception to the general prohibition against warrantless

searches.” People v. Cregan, 2011 IL App (4th) 100477, ¶ 31, 961 N.E.2d 926. If this assessment

of the likely circumstances in this case is correct (and we note that the State could have presented

evidence to this effect if defendant had filed a motion to suppress), then the seized evidence would

have inevitably been discovered, and no motion to suppress would have been successful.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we affirm the trial court’s judgment.

¶ 44 Affirmed.

- 11 - No. 4-18-0819

Decision Under Review: Appeal from the Circuit Court of Livingston County, No. 17-CF- 51; the Hon. Jennifer H. Bauknecht, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Darrel F. Oman, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant:

Attorneys Randy Yedinak, State’s Attorney, of Pontiac (Patrick for Delfino, David J. Robinson, and James Ryan Williams, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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