People v. Simpson

2019 IL App (3d) 170379-U

• Court: Appellate Court of Illinois
• Decided: November 6, 2019
• Docket: 3-17-0379
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

2019 IL App (3d) 170379-U

Order filed November 6, 2019 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-17-0379 v. ) Circuit No. 16-CF-771 ) LEON DYWONE SIMPSON SR., ) Honorable ) Frank R. Fuhr, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court. Presiding Justice Schmidt and Justice Carter concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Defense counsel did not provide ineffective assistance for failing to file a motion to quash the search warrants. The trial court did not err when it denied the defendant’s motion to suppress evidence.

¶2 The defendant, Leon Dywone Simpson Sr., appeals his conviction and sentence. He

argues that his counsel provided ineffective assistance and the trial court erred in denying his

motion to suppress evidence.

¶3 I. BACKGROUND ¶4 The State filed a complaint for search warrants for the defendant and his residence.

Attached to the complaint is the affidavit of Officer Jose Vargas. His affidavit averred that he

was assigned to the Quad City Metropolitan Enforcement Group. He received information from a

confidential informant. The confidential informant had provided truthful and accurate

information in the past. The informant had provided information that led to four or more arrests

and helped supply the basis for four or more search warrants and led to the discovery and seizure

of drugs, firearms, and other contraband. The confidential informant had made previous

purchases of crack cocaine from the defendant at the defendant’s residence. Within the prior 14

days of the writing of the affidavit, Vargas conducted a controlled purchase with the confidential

informant. Vargas searched the informant prior to the purchase and did not find any contraband.

Vargas then observed the informant walk to and enter the defendant’s residence. The informant

purchased a substance from the defendant and returned to Vargas. The substance later tested

positive for the presence of cocaine. The affidavit also noted that the defendant had prior drug

related convictions. The trial court issued search warrants for the defendant and his residence.

¶5 Following the execution of the search warrants, the defendant was arrested and charged

with possession with intent to deliver more than 1 gram but less than 15 grams of cocaine (720

ILCS 570/401(c)(2) (West 2016)). Prior to trial, defense counsel filed a motion to suppress

statements the defendant made while in custody. The motion argued that the defendant was

illegally arrested prior to the search of his residence. Therefore, the motion sought to suppress

the statements the defendant made while the police searched his residence. Counsel did not file a

motion to suppress attacking the sufficiency of the search warrants.

¶6 At the hearing on the defendant’s motion, Officer Eric Roloff, testified that like Vargas

he was assigned to the Quad City Metropolitan Enforcement Group. He and another officer were

2 conducting surveillance on the defendant’s residence while other officers were preparing to

execute the search warrant on the defendant’s residence. Roloff and his partner observed the

defendant leave the residence with his girlfriend and enter a vehicle. Roloff called the police

department and asked another officer to make a traffic stop on the defendant’s vehicle. The

defendant’s vehicle was stopped approximately 10 to 12 blocks away from the defendant’s

residence. Roloff arrived at the scene of the traffic stop. Roloff informed the defendant of the

search warrants for his person and residence. The officers searched the defendant. The officers

only found $753 in currency.

¶7 Roloff then transported the defendant to the police department. Roloff explained that the

defendant was detained and transported to the police department for officer safety. Because the

defendant’s residence had not yet been searched, the defendant was detained to prevent him from

returning to his home to destroy or conceal evidence and potentially ambush the officers

attempting to search his home. Roloff did not mention the controlled drug purchase as a reason

for detaining the defendant.

¶8 At the police department, the defendant was placed in an interview room and provided

Miranda warnings. Roloff interrogated the defendant while officers executed the search warrant

on the defendant’s residence. The defendant made incriminating statements during the interview.

Eventually, officers found crack cocaine after searching the defendant’s residence.

¶9 Following the testimony, defense counsel argued that the defendant was under arrest at

the time he was pulled over and taken to the police department for questioning. According to

defense counsel, the police did not have probable cause at the time of the arrest because officers

had not yet searched the defendant’s residence, and the officers did not find any contraband on

the defendant’s person. Therefore, defense counsel argued that the defendant’s statements made

3 while at the police department should be suppressed. Defense counsel acknowledged that under

Bailey v. United States, 568 U.S. 186 (2013), a detention incident to a search warrant is

permissible only when the person is detained within the vicinity of the premises to be searched.

Because the defendant was detained blocks away from his residence, the defense argued that the

defendant’s detention was not permissible under Bailey.

¶ 10 In response, the State argued that the defendant was not under arrest at the time he was

taken to the police department. Therefore, the State claimed that the officers did not need

probable cause to detain the defendant. The State argued that the defendant’s brief detention for

officer safety reasons was permissible under Bailey while the other officers searched the

defendant’s residence.

¶ 11 Following the parties’ arguments, the trial court asked the parties whether the allegations

of the controlled drug purchase described by Vargas in his affidavit established probable cause to

arrest the defendant. The court took the matter under advisement. Ultimately, the court denied

the defendant’s motion. The court found that officers had probable cause to arrest the defendant

based on the allegation of the controlled drug purchase described in the search warrants.

¶ 12 The cause proceeded to a bench trial. The court found the defendant guilty of the lesser

offense of possession of a controlled substance with intent to deliver less than one gram of

cocaine. The court sentenced the defendant to five years’ imprisonment. The defendant filed a

posttrial motion in which he argued that the trial court erred by denying his motion to suppress

statements. The trial court denied the motion.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the defendant argues that defense counsel provided ineffective assistance for

failing to file a motion to quash the search warrants. The defendant also contends that the trial

4 court erred in denying his motion to suppress the statements he made when questioned by the

police. We discuss each argument in turn.

¶ 15 A. Ineffective Assistance of Counsel

¶ 16 Every defendant has a constitutional right to the effective assistance of counsel. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish ineffective assistance of

counsel, the defendant must show both: (1) his counsel’s representation fell below an objective

standard of reasonableness, and (2) that the substandard representation prejudiced the defendant.

Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504, 526-27

(1984) (adopting Strickland).

¶ 17 Here, the defendant contends that counsel was ineffective for failing to file a motion to

quash the search warrants. Specifically, the defendant contends that counsel should have filed the

motion and argued that the affidavit for search warrants failed to establish probable cause to

search the defendant and his residence.

¶ 18 An attorney’s decision whether to file a motion to suppress is generally a matter of trial

strategy that is entitled to great deference. People v. White, 221 Ill. 2d 1, 21 (2006). To establish

prejudice resulting from counsel’s failure to file a motion to suppress evidence, a defendant must

show that: (1) the unargued suppression motion 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. People v. Henderson, 2013 IL 114040, ¶ 12. A defendant’s failure to establish

either prong of the Strickland test precludes a finding of ineffective assistance of counsel. People

v. Patterson, 217 Ill. 2d 407, 438 (2005). In the present context, the defendant must show that the

affidavit for the search warrants failed to establish probable cause.

5 ¶ 19 At a probable cause hearing, the warrant judge must make a practical, commonsense

assessment of whether, given all the circumstances set forth in the affidavit, there is a fair

probability that evidence of a particular crime will be found in a particular place. People v.

Hickey, 178 Ill. 2d 256, 285 (1997). “A showing of probable cause means that the facts and

circumstances within the knowledge of the affiant are sufficient to warrant a person of

reasonable caution to believe that an offense has occurred and that evidence of it is at the place to

be searched.” People v. Moser, 356 Ill. App. 3d 900, 908 (2005). The standard for probable

cause rests upon the probability of evidence of criminal activity, not a showing of proof beyond a

reasonable doubt. People v. Brown, 2014 IL App (2d) 121167, ¶ 22 (citing People v. Stewart,

104 Ill. 2d 463, 475-76 (1984)).

¶ 20 Here, Vargas’s affidavit for the search warrants averred that he used a confidential

informant to make a controlled purchase of drugs from the defendant. The informant had

previously provided the police with truthful and accurate information that led to four arrests. The

controlled purchase occurred at most 14 days prior to the filing of the complaint for search

warrant. The confidential informant positively identified the defendant having previously

purchased drugs from the defendant. Vargas searched the confidential informant prior to the

purchase and did not find any drugs. Vargas observed the informant enter the defendant’s

residence, then return to Vargas. The informant purchased a substance that tested positive for the

presence of cocaine. The informant had also previously purchased drugs from the defendant at

the same residence. The affidavit also alleged that the defendant had previously been convicted

of drug related offenses. Considering the reliable source and Vargas’s personal observation of

the controlled purchase, we conclude that the complaint for search warrants sufficiently

established probable cause to believe that evidence of the defendant’s drug sales would be found

6 on his person and his residence. Therefore, we conclude that the defendant failed to show

prejudice from counsel’s decision not to file a motion to suppress that lacked merit. Patterson,

217 Ill. 2d at 438.

¶ 21 In reaching this conclusion, we reject the defendant’s argument that the complaint for

search warrants was insufficient because Vargas’s affidavit did not specify the dates, times, and

amount of drugs the informant had purchased from the defendant. Although the complaint for

search warrants did not provide specificity as to the drug sales, the affidavit established that the

defendant had sold cocaine from his residence on more than one occasion. The failure to allege

the amount of cocaine sold does not change the result. The complaint for search warrants did not

need to establish that the defendant was running a large-scale drug operation. Rather, the State

needed to show only that the defendant engaged in a continuing course of criminal conduct.

People v. Beck, 306 Ill. App. 3d 172, 179 (1999). The affidavit makes a showing that the

defendant was engaged in an ongoing course of criminal activity by selling cocaine to the

confidential informant.

¶ 22 B. Motion to Suppress Statements

¶ 23 Next, the defendant contends that the trial court erred in denying his motion to suppress

the statements he made while in custody. The State contends that the defendant has forfeited

review of this issue by failing to include the issue in his posttrial motion. We disagree. Defense

counsel raised the issue in his motion to suppress, and then raised the argument again in his

posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 189 (1988). Consequently, we find the

issue is preserved.

¶ 24 Returning to the defendant’s argument. The defendant contends that he was arrested and

questioned without probable cause. The defendant claims that the officers lacked probable cause

7 to detain him after a search of his person did not reveal any contraband. Because the search of

his residence had yet to occur, he contends that the officers lacked probable cause to detain him

and transport him to the police department for questioning. Therefore, the defendant argues that

the trial court should have suppressed his statements.

¶ 25 We review the trial court’s ruling on a motion to suppress evidence under a two-part test.

People v. Harris, 228 Ill. 2d 222, 230 (2008). The trial court’s factual findings are entitled to

deference and will be reversed only if they are against the manifest weight of the evidence. Id.

The ultimate ruling of whether reasonable suspicion or probable cause exists and whether

suppression is warranted is reviewed de novo. Id.

¶ 26 Initially, we note that the parties dedicate much of their arguments on the issue of

whether the officers had authority to detain the defendant without probable cause while

executing the search warrant at the defendant’s residence. We need not reach this issue because

we find the officers had probable cause to arrest the defendant prior to searching his residence.

¶ 27 As noted above (supra ¶ 20), Vargas conducted a controlled drug purchase with a reliable

informant. The controlled purchase conducted within 14 days of the defendant’s arrest provided

the officers with probable cause to arrest the defendant at the time they stopped the defendant’s

vehicle several blocks from his residence. Therefore, we find that the trial court did not err by

denying the defendant’s motion to suppress evidence.

¶ 28 In reaching this conclusion, we reject the defendant’s argument that the trial court

improperly justified the defendant’s arrest because the controlled drug purchase was unrelated to

the crime the defendant was ultimately charged with. In other words, the charge in this case was

based on the cocaine found inside the defendant’s residence—not the cocaine he sold to the

informant. Therefore, the defendant contends that the officers could not later justify the

8 defendant’s arrest based on the unrelated crime. In support of this proposition, the defendant

relies upon People v. Nash, 78 Ill. App. 3d 172 (1979), and People v. James, 255 Ill. App. 3d 516

(1993). We find these cases distinguishable.

¶ 29 In Nash, 78 Ill. App. 3d at 174-75, the defendant was arrested for murder. The defendant

moved to suppress statements he made while in custody. Id. at 175. The appellate court found

that the police lacked probable cause to arrest the defendant for murder. Id. at 176. However, the

State attempted to justify the defendant’s arrest based on another unrelated crime. Id. During the

investigation, the police learned that the defendant’s vehicle was using the license plates of

another vehicle. Id. Therefore, the State argued that the defendant could have properly been

placed under arrest for the unrelated crime. Id. The appellate court rejected the argument

reasoning that in retrospect, probable cause to arrest for another unrelated offense cannot be used

to justify an illegal arrest. Id. Stated differently, the court found that the police could not be

justified in arresting the defendant for an offense that they did not contemplate at the time of

arrest.

¶ 30 Similarly, in James, 255 Ill. 3d at 516, the defendant was arrested for arson. Prior to the

defendant’s arrest, the police were told by the defendant’s ex-girlfriend that he had hit and

kicked her the night of the fire. Id. at 519. While in custody, the defendant failed a polygraph

test. Id. at 520. The defendant filed a motion to suppress arguing that he was arrested without

probable cause. Id. at 518. The trial court refused to consider whether probable cause existed to

arrest the defendant for arson. Id. at 522. Instead, the trial court justified the defendant’s arrest

based on the battery allegation. Id. On appeal, the appellate court rejected the trial court’s finding

on the same basis as Nash. In other words, the police did not contemplate arresting the defendant

for battery while they investigated the defendant for arson.

9 ¶ 31 Here, unlike Nash and James, the two offenses are related. The controlled drug purchase

was the basis for the issuance of search warrants for the defendant and his residence. Thus, while

it is unclear if the defendant was ever charged for the controlled drug purchase, the charges in

this case were intertwined with the investigation of the defendant’s ongoing criminal activity.

That is, both offenses were part of the same investigation. The controlled drug purchase was

therefore contemplated at the time of the defendant’s arrest.

¶ 32 Despite this, the defendant contends that the trial court erred when it found that Roloff

knew of the controlled drug purchases conducted by Vargas. Because Roloff testified that he

detained the defendant for officer safety reasons, the defendant contends that Roloff did not

know of the prior controlled purchase and, therefore, lacked probable cause to arrest the

defendant. It is true that Vargas—not Roloff—conducted the controlled drug purchase and

sought search warrants for the defendant and his residence. However, it is reasonable to infer that

Roloff was aware of the prior controlled drug purchase. Roloff assisted Vargas in executing the

search warrants. Roloff conducted surveillance on the defendant’s residence while Vargas and

other officers prepared for the search. Roloff possessed the search warrant and executed it by

searching the defendant’s person. It is reasonable to conclude that Roloff was aware of the basis

for the search—i.e., to investigate the defendant’s drug activity given that Roloff eventually

interviewed the defendant regarding his drug activities. When police officers are working

together, the knowledge of each is the knowledge of all. People v. Fonner, 385 Ill. App. 3d 531,

541 (2008). Roloff had the right to rely on the knowledge of Vargas that the defendant had

previously sold drugs during a controlled drug purchase. Accordingly, we cannot say that it was

against the manifest weight of the evidence for the trial court to find that Roloff was aware of the

controlled drug purchase when he arrested the defendant.

10 ¶ 33 III. CONCLUSION

¶ 34 The judgment of the circuit court of Rock Island County is affirmed.

¶ 35 Affirmed.