People v. Shelton

2020 IL App (2d) 170453-B

• Court: Appellate Court of Illinois
• Decided: August 18, 2020
• Docket: 2-17-0453
• Status: Published

Opinion

2020 IL App (2d) 170453-B No. 2-17-0453 Opinion filed August 18, 2020 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) Nos. 10-CF-3 ) 13-CF-1031 ) 13-CF-1793 ) JOEL D. SHELTON, ) Honorable ) Donna R. Honzel, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hudson and Bridges concurred in the judgment and opinion.

OPINION

¶1 Defendant, Joel D. Shelton, contends that his trial counsel was ineffective for failing to file

a motion to suppress, because a 911 call did not provide reasonable suspicion to stop his vehicle.

Because the 911 caller reported that defendant was asleep at the wheel at an intersection, there was

reasonable suspicion to stop defendant for driving under the influence. Thus, we affirm. 1

1 We note that this opinion was originally filed on January 17, 2020. Although defendant

had requested oral argument, we mistakenly never entered a written order dispensing with oral 2020 IL App (2d) 170453-B

¶2 I. BACKGROUND

¶3 Defendant was charged in the circuit court of Winnebago County with, among other things,

one count of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2),

(d)(1)(A), (d)(2)(E) (West 2010)). Defendant opted for a jury trial.

¶4 Before trial, defendant moved in limine to bar admission of the arresting officer’s

testimony that he was dispatched to investigate a 911 report of someone “asleep behind the wheel

at a light or intersection.” The trial court ruled that the officer could testify that he was dispatched

because someone was stopped at the intersection but not because the driver was asleep behind the

wheel. The court explained that it was concerned about the implication that defendant was “drunk

and sleeping behind the wheel like sometimes drunks do.”

¶5 The following relevant facts were established at the trial. On January 1, 2010, at about

9:55 p.m., Officer Stacey Beaman of the Rockford Police Department was dispatched to the

argument. See Ill. S. Ct. R. 352(a) (eff. July 1, 2018). Defendant then filed a petition for rehearing,

contending, among other things, that we failed to enter a written order dispensing with his request

for oral argument. We denied the petition for rehearing and again neglected to enter an order

disposing of defendant’s request for oral argument. Defendant, in turn, filed a petition for leave

to appeal to the supreme court. Our supreme court denied the petition for leave to appeal but

entered a supervisory order directing this court to vacate its judgment and, before entering a new

judgment, conduct oral argument.

We have since conducted oral argument. We have also carefully reconsidered the

arguments of the parties, both written and oral, the record, the applicable law, and our original

opinion. We stand by our original opinion as modified herein.

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intersection of North Main Street and Riverside Boulevard. According to Officer Beaman, the

dispatch “was in reference to a welfare check.” The 911 caller stated that a vehicle was stopped

at the intersection. As Officer Beaman drove to that location, the dispatcher advised her that the

caller had reported that the vehicle was now moving and that the caller had followed it to a nearby

Culver’s restaurant. The caller described the vehicle and its license plate number.

¶6 When she arrived in the area, Officer Beaman saw the described vehicle in the Culver’s

drive-through lane. The vehicle then exited onto Bennington Road. Officer Beaman followed the

vehicle and conducted a traffic stop. After driving about 25 to 30 feet on Bennington Road, the

vehicle pulled back into the Culver’s lot and parked.

¶7 As she approached the vehicle, Officer Beaman saw defendant, the only occupant, in the

driver’s seat. As she stood next to the driver’s window, Officer Beaman smelled a strong odor of

an alcoholic beverage on defendant’s breath and burnt cannabis coming from the vehicle’s interior.

¶8 Officer Beaman had defendant exit the vehicle and walk to the squad car. Defendant

stumbled several times, requiring Officer Beaman to hold defendant’s right arm to steady him.

Officer Beaman had defendant sit in the squad car. While defendant sat in the squad car, he offered

that he had been at a bar but had not consumed any alcohol. Defendant later admitted to another

officer that he had drunk 2½ alcoholic beverages. Defendant refused to complete any field sobriety

tests.

¶9 Officer Beaman then requested that a traffic investigator come to the scene. Several

officers arrived and assisted in searching defendant’s vehicle. Officer Beaman found a half-empty

bottle of vodka next to the driver’s seat and two clear plastic bags containing cannabis, one on the

dash and the other between the front seats.

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¶ 10 After several other witnesses testified, including defendant, the jury found defendant guilty

of, among other things, aggravated DUI. The trial court sentenced defendant to eight years’

imprisonment on the DUI conviction. Defendant, in turn, filed a timely notice of appeal.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant contends that his trial counsel was ineffective for failing to file a

motion to suppress. Specifically, defendant asserts that the 911 call, stating that defendant was

asleep at the wheel at the intersection, was insufficient, standing alone, to provide reasonable

suspicion to stop his vehicle. The State responds that the call provided reasonable suspicion to

stop defendant for DUI.

¶ 13 Before we address the merits of defendant’s contention, we note that defendant raises the

ineffectiveness claim on direct appeal, as opposed to in a postconviction proceeding. Most often,

a postconviction proceeding is the more appropriate mechanism for challenging the effectiveness

of trial counsel because the defendant would have the opportunity to develop a record specifically

addressing the merits of a motion to suppress. People v. Henderson, 2013 IL 114040, ¶¶ 21-22.

However, where there are sufficient record facts to resolve the defendant’s ineffectiveness claim,

we will address it on direct appeal. Henderson, 2013 IL 114040, ¶¶ 22, 24.

¶ 14 Here, the parties agree that there are sufficient record facts to resolve defendant’s

ineffectiveness claim. They also agree as to the scope of the relevant facts. Although the record

does not show whether the 911 caller provided additional relevant information, the parties agree

that the caller reported that defendant was asleep at the wheel while sitting in his vehicle at an

intersection. Defendant relies exclusively on that fact in arguing that there was no reasonable

suspicion to stop him. More importantly, the State does not suggest that there was any other

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information provided by the caller that was relevant to whether there was reasonable suspicion to

stop defendant. 2 Thus, we will address the issue.

¶ 15 To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s

performance was so deficient that it fell below an objective standard of reasonableness and (2) the

deficient performance prejudiced the defendant in that, but for counsel’s deficient performance,

there is a reasonable probability that the result of the proceeding would have been different. People

v. Houston, 226 Ill. 2d 135, 144 (2007). Decisions involving trial strategy generally will not

support an ineffectiveness claim. People v. Lindsey, 324 Ill. App. 3d 193, 197 (2001).

¶ 16 Whether to move to suppress evidence generally is a matter of trial strategy. People v.

Little, 322 Ill. App. 3d 607, 611 (2001). Courts will presume that trial counsel had a legitimate

strategy for filing or not filing a motion to suppress. Little, 322 Ill. App. 3d at 611. To overcome

that presumption and prevail on a claim of ineffectiveness for failing to file a motion to suppress,

a defendant must show that (1) the unargued motion to suppress would have succeeded and

(2) there is a reasonable probability that the outcome of the trial would have been different had the

evidence been suppressed. Little, 322 Ill. App. 3d at 611. If filing a motion to suppress would

have been futile, then the failure to do so will not constitute the ineffective assistance of counsel.

People v. Givens, 237 Ill. 2d 311, 331 (2010).

2 We note that the State has not argued that there was some other basis for stopping

defendant, such as community caretaking. See People v. McDonough, 239 Ill. 2d 260, 268-75

(2010).

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¶ 17 Here, defendant relies solely on Navarette v. California, 572 U.S. 393 (2014), for his

argument that the 911 call did not provide reasonable suspicion to stop his vehicle. The State, in

turn, contends that Navarette supports the stop. Thus, we will focus on the import of that case.

¶ 18 In Navarette, a 911 caller reported having recently been run off the road by another vehicle.

Navarette, 572 U.S. at 395. After holding that the call was reliable, the United States Supreme

Court addressed whether the information provided by the call constituted reasonable suspicion to

stop the vehicle. Navarette, 572 U.S. at 400-01. In doing so, the Court noted that it must determine

whether the 911 report created reasonable suspicion of an ongoing crime such as drunk driving, as

opposed to an isolated episode of past recklessness. Navarette, 572 U.S. at 401.

¶ 19 The Court emphasized that the commonsense approach of reasonable suspicion depends

on the factual and practical considerations of everyday life upon which reasonable and prudent

people, not legal technicians, act. Navarette, 572 U.S. at 402. The Court distinguished certain

driving behaviors that indicate drunk driving from other traffic infractions that are too tenuously

connected to drunk driving to give rise, alone, to reasonable suspicion to stop a vehicle. Navarette,

572 U.S. at 402. The Court added that a report of driving behavior that suggests decreased

vigilance, impaired judgment, or some combination of those drunk-driving cues gives rise to

reasonable suspicion that the driver is under the influence. Navarette, 572 U.S. at 401. Ultimately,

the Court validated the stop.

¶ 20 Applying the reasoning of Navarette, we conclude that the 911 report that defendant was

asleep at the wheel at an intersection provided reasonable suspicion to stop defendant. Clearly, a

driver who falls asleep at an intersection is experiencing decreased vigilance and impaired

judgment commonly associated with drunk driving. That is particularly so at 10 p.m., not an

unusually late hour. Sleeping at the wheel at an intersection also creates several dangers associated

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with drunk driving. For instance, a vehicle unexpectedly stopped at an intersection could cause

other drivers to suddenly swerve to avoid the stopped vehicle, thereby colliding with other vehicles

or leaving the roadway and striking a pedestrian or object. As defendant’s reported conduct was

a significant indicator of DUI, the report gave Officer Beaman reasonable suspicion that defendant

committed the offense. See Navarette, 572 U.S. at 403.

¶ 21 Although the reported behavior might have been explained by, for example, extreme

tiredness or prescribed medication, the Supreme Court has consistently recognized that reasonable

suspicion need not rule out the possibility of an innocent explanation. Navarette, 572 U.S. at 403.

Indeed, even the reported driving behavior in Navarette, running another motorist off the road,

was subject to possible innocent explanations. For example, the offending driver might have

suddenly swerved to avoid an animal or other hazardous object in the road, or carelessly lost

control of his vehicle because of a momentary lapse of attention, such as changing radio stations,

eating something, or looking at a cell phone. Nonetheless, as long as it was reasonable to infer

that the driver ran the other motorist off the road because he was under the influence, the officer

had a proper basis to stop the vehicle and investigate the cause. The same is true here.

¶ 22 Nor did the absence of additional suspicious conduct before the stop dispel the reasonable

suspicion of drunk driving. See Navarette, 572 U.S. at 403. Indeed, an officer who already has

reasonable suspicion need not surveil a vehicle at length in order to personally observe suspicious

driving. Navarette, 572 U.S. at 403. Further, once reasonable suspicion of drunk driving exists,

the reasonableness of the officer’s decision to stop the suspect does not depend on the availability

of less-intrusive investigative techniques. Navarette, 572 U.S. at 403-04. Thus, because the 911

call provided reasonable suspicion of drunk driving, Officer Beaman was justified in stopping

defendant at the first opportunity.

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¶ 23 Because the 911 call provided reasonable suspicion to stop defendant’s vehicle, a motion

to suppress would not have succeeded. Thus, trial counsel was not ineffective for failing to file

such a motion.

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 26 Affirmed.

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No. 2-17-0453

Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 10- CF-3; the Hon. Donna R. Honzel, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Erin S. Johnson, of State for Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Marilyn Hite Ross, State’s Attorney, of Rockford (Patrick for Delfino, Edward R. Psenicka, and Ivan O. Taylor Jr., of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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