People v. Slaughter

2020 IL App (1st) 181967-U

• Court: Appellate Court of Illinois
• Decided: September 29, 2020
• Docket: 1-18-1967
• Status: Unpublished

Opinion

2020 IL App (1st) 181967-U No. 1-18-1967 Order filed September 29, 2020 Second Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 16591 ) NINA SLAUGHTER, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.

ORDER

¶1 Held: Defendant’s contention that cocaine found on her person was the fruit of an illegal interrogation is forfeited where she did not allege a violation of Miranda v. Arizona, 384 U.S. 436 (1966), in her motion to suppress. Trial counsel was not ineffective for failing to allege a Miranda violation because defendant was not in custody when a police officer questioned her.

¶2 Following a stipulated bench trial, defendant Nina Slaughter was found guilty of

possession of less than 15 grams of a controlled substance and sentenced to 18 months’

probation. On appeal, defendant argues that (1) the trial court erred by denying her motion to No. 1-18-1967

suppress the cocaine found on her person because it was the fruit of an illegal interrogation, and

(2) trial counsel was ineffective for failing to allege a violation of Miranda v. Arizona, 384 U.S.

436 (1966), in her motion to suppress. For the following reasons, we affirm.

¶3 Defendant was charged by information with one count of possession of a controlled

substance (720 ILCS 570/402(c) (West 2016)). The information alleged that on or about October

26, 2017, defendant unlawfully and knowingly possessed less than 15 grams of a substance

containing cocaine.

¶4 Prior to trial on March 15, 2018, defendant filed a motion for a hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978). In the motion, defendant argued that the search

warrant that led to police discovering cocaine on her person relied on false statements by a

registered confidential informant (RCI). As alleged in the warrant, the RCI told Chicago police

officer Michael Higgins that on October 26, 2017, defendant’s son, Antoine Fulton, sold the RCI

cannabis from the second floor apartment of a building on the 5400 block of South Carpenter

Street in Chicago. The RCI gave similar information to police in 10 other cases. Defendant

attached affidavits from Antoine Bell and Antonio Fulton, who averred that they lived in that

apartment with defendant and Antoine Fulton, and that he was not there the day the RCI alleged

the drug transaction occurred. Defendant argued that these affidavits showed that the informant

provided false information, which the police failed to independently corroborate.

¶5 The trial court denied defendant’s Franks motion, finding that the police had sufficient

independent corroboration of the drug transaction because, according to Higgins, they obtained

pictures of the apartment and the RCI verified that it was the correct location. The trial court also

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noted that the police had a photograph of Antoine Fulton and that the Assistant State’s Attorney

(ASA) signed the complaint for the warrant.

¶6 On April 30, 2018, defendant filed a motion to suppress the cocaine found on her person.

Specifically, defendant asserted that the officers lacked a reasonable suspicion that she had been

or was about to be involved in criminal activity, and thus, pursuant to Terry v. Ohio, 392 U.S. 1

(1968), stopping and frisking her was unlawful.

¶7 At the May 22, 2018 hearing on defendant’s motion, Chicago police officer Burmisterz 1

testified that on October 26, 2017, she was on a team that executed a search warrant at the

apartment on Carpenter. The parties stipulated that the target of the warrant was Antoine Fulton,

not defendant. Burmisterz stated that she did not have a warrant to arrest or search defendant.

After Burmisterz entered the apartment, she detained defendant and searched her. During the

search, Burmisterz recovered one clear plastic knotted bag containing cannabis, one blue tinted

Ziploc bag containing suspect crack cocaine, and one piece of tissue containing suspect crack

cocaine. Burmisterz then arrested defendant.

¶8 On cross-examination, Burmisterz testified that she entered the apartment through the

back and went into the kitchen, where she saw defendant next to a bedroom. Burmisterz detained

defendant for purposes of conducting the search of the apartment and asked if she had

“anything” on her person. 2 Defendant stated she had cannabis in her bra, which Burmisterz

recovered. Burmisterz then performed a protective pat down by running her hands along the

1 Burmisterz’s first name does not appear in the record. 2 In her brief, defendant repeatedly asserts that Burmisterz asked her if she had “anything illegal” on her person. On cross-examination, the ASA asked Burmisterz if she asked defendant if she had “anything” on her person, and Burmisterz stated, “I did.” On redirect examination, defense counsel asked Burmisterz if she asked defendant if she had “anything illegal” on her person, and Burmisterz testified, “I asked her if she had anything on her. Yes.”

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waist of defendant’s pants and putting a finger in the interior of defendant’s waistline, from

which she recovered suspect cocaine. Burmisterz asked if defendant had “anything else” on her

person, and defendant answered affirmatively. Burmisterz then recovered individually packaged

items of suspect cocaine from the front waist of defendant’s pants.

¶9 On redirect examination, Burmisterz testified that when she initially detained defendant,

she was not handcuffed but was not free to leave. Burmisterz did not give defendant Miranda

warnings prior to asking if she had anything on her person. After recovering the cannabis from

defendant’s bra, Burmisterz performed the protective pat down to determine if defendant had

weapons or other illegal objects on her. During the pat down, Burmisterz put her thumbs inside

defendant’s waistband, and a blue Ziploc bag containing suspect crack cocaine came out. After

recovering the bag, Burmisterz handcuffed defendant. The following colloquy occurred:

“[DEFENSE COUNSEL]: And before you asked her if she had anything else

illegal on her, did you give her Miranda warnings?

[BURMISTERZ]: No, I didn’t.

[DEFENSE COUNSEL]: And you’re saying that at [that] point she says, yes, she

did have something else on her?

[BURMISTERZ]: Yes, sir.

[DEFENSE COUNSEL]: And what exactly did she say?”

¶ 10 Before Burmisterz answered, the State objected on the basis that there was no pending

motion to suppress defendant’s statement. The trial court responded, “there’s still the Fourth

Amendment claim. Overruled.” Burmisterz then testified that defendant told her she could

recover bags wrapped in tissue in defendant’s pants.

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¶ 11 Following Burmisterz’s testimony, defense counsel argued that Burmisterz lacked

probable cause to search defendant. Defense counsel asserted that Burmisterz testified that she

performed a protective pat down after finding cannabis on defendant, but searching inside

defendant’s waistband “eliminate[d] the protective pat down justified by Terry or weapons.”

Defense counsel further stated that although Burmisterz said that defendant consented to the

search, such consent was involuntary because defendant had been handcuffed.

¶ 12 The trial court denied defendant’s motion to suppress, stating that after securing the

room, Burmisterz was allowed to make a “general inquiry” of defendant while executing the

search warrant and was therefore justified to ask whether she “had anything that she shouldn’t.”

According to the trial court, once Burmisterz recovered the cannabis, she had the right to arrest

defendant and perform a “full custodial search.” Therefore, the trial court did not “find offense to

the Fourth [A]mendment by anything” that Burmisterz did.

¶ 13 The case proceeded to a stipulated bench trial on June 6, 2018. The parties adopted the

testimony from the suppression hearing, and the State entered a stipulation that the items

recovered from defendant tested positive for two grams of cocaine.

¶ 14 The trial court found defendant guilty of possession of a controlled substance. Defendant

filed a motion to reconsider, or in the alternative for a new trial. Relevant here, defendant argued

without elaboration that the trial court erred in denying her motion to suppress. The trial court

denied defendant’s motion and, following a hearing, sentenced her to 18 months’ probation.

¶ 15 On appeal, defendant first argues that Burmisterz did not Mirandize her before initially

asking whether she had anything on her person, and therefore, the trial court erroneously denied

her motion to suppress the cocaine as fruit of an illegal interrogation.

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¶ 16 The State asserts that defendant forfeited this issue because her motion to suppress only

alleged a Terry violation, and thus, she cannot now assert an argument regarding Miranda. In her

reply brief, defendant contends for the first time that even if the issue were forfeited, we may

review it for plain error. See People v. Johnson, 2015 IL App (1st) 133663, ¶ 11 (“because

defendant argued plain error in his reply brief, that is sufficient to allow us to review the issue for

plain error” (internal quotation marks omitted)).

¶ 17 “It has frequently been held that the theory upon which a case is tried in the lower court

cannot be changed on review, and that an issue not presented to or considered by the trial court

cannot be raised for the first time on review.” (Internal quotation marks omitted.) Daniels v.

Anderson, 162 Ill. 2d 47, 58 (1994). Here, defendant’s motion to suppress argued that the

officers lacked a reasonable suspicion that she had been or was about to be involved in criminal

activity, and thus, stopping and frisking her was unlawful under Terry. At the hearing on her

motion, defense counsel asked Burmisterz whether she Mirandized defendant, but did not allege

a Miranda violation. Thus, the State had no opportunity to argue the issue and the trial court did

not rule thereon. Consequently, defendant’s claim is forfeited, and we decline to review it for

plain error. See, e.g., People v. Hughes, 2015 IL 117242, ¶¶ 40, 45-47 (the defendant forfeited

his argument on appeal that his confession was involuntary because throughout trial and in

posttrial proceedings, he challenged the reliability of his confession rather than its voluntariness).

¶ 18 In a supplemental brief filed with leave of court, defendant further alleges that trial

counsel was ineffective for failing to include the Miranda issue in the motion to suppress. In

turn, the State asserts in its supplemental brief that trial counsel’s omission does not amount to

ineffective assistance because the argument would have failed.

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¶ 19 Claims of ineffective assistance of counsel are evaluated under the two-prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Under this test, a defendant must

demonstrate that (1) counsel’s performance fell below an objective standard of reasonableness,

and (2) a reasonable probability exists that, but for counsel’s error, the result of the proceeding

would be different. People v. Henderson, 2013 IL 114040, ¶ 11. The failure to establish either

prong defeats a claim of ineffectiveness. Id.

¶ 20 Under Miranda, an individual subject to custodial interrogation must be informed of

certain rights before questioning. Miranda, 384 U.S. at 444, 478-79. However, Miranda

warnings are only necessary when “the person is both in custody and being interrogated by the

police” (People v. Briseno, 343 Ill. App. 3d 953, 957 (2003)), and are not required when “the

police conduct a general on-the-scene questioning as to facts surrounding a crime” (People v.

Parks, 48 Ill. 2d 232, 237 (1971)). Instead, the Miranda safeguards become applicable only

when a person’s “freedom of action is curtailed to a degree associated with formal

arrest.” (Internal quotation marks omitted.) Berkemer v. McCarty, 468 U.S. 420, 440 (1984).

¶ 21 Although Burmisterz testified that defendant was not free to leave during the search, “the

fact that defendant was unable to leave, and thus was subject to a Terry seizure, is not dispositive

on the issue of whether defendant was in custody for purposes of Miranda.” (Internal quotation

marks omitted.) People v. Jeffers, 365 Ill. App. 3d 422, 429 (2006). Rather, the relevant factors

to determine whether a statement was made in a custodial setting include:

“(1) the location, time, length, mood, and mode of the questioning; (2) the number

of police officers present during the interrogation; (3) the presence or absence of

family and friends of the individual; (4) any indicia of a formal arrest procedure,

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such as the show of weapons or force, physical restraint, booking or

fingerprinting; (5) the manner by which the individual arrived at the place of

questioning; and (6) the age, intelligence, and mental makeup of the

accused.” People v. Slater, 228 Ill. 2d 137, 150 (2008).

No single factor is controlling; after considering each one, we must determine whether a

reasonable, innocent person would have believed that he was free to leave. Id.

¶ 22 Considering all the factors, we find that defendant was not in custody under Miranda

when Burmisterz first asked whether she had anything on her. Defendant was in her apartment

when Burmisterz spoke to her, and thus, in a familiar environment. Burmisterz described the

entire conversation as being relatively short and nonintimidating. Although Burmisterz testified

she was part of a team to search the apartment, no evidence showed other officers were in the

immediate vicinity when Burmisterz asked defendant this initial question. Defendant was not

handcuffed at this point. Further, no evidence suggested defendant’s inability to understand the

situation. Under these circumstances, defendant was not in custody under Miranda when

Burmisterz first asked if she had anything on her, and therefore, defendant was not prejudiced by

trial counsel’s failure to make this argument in her motion to suppress.

¶ 23 Moreover, we note that People v. Chestnut, 398 Ill. App. 3d 1043 (2010), relied on by

defendant, is distinguishable. In Chestnut, two police officers were positioned in an enclosed

porch outside a house during the execution of a search warrant when the defendant rang the

doorbell. Chestnut, 398 Ill. App. 3d 1044-45. After an officer opened the porch door and

defendant entered, the officers identified themselves and said they were conducting a drug

investigation. Id. at 1045. The defendant began to act “nervous,” and an officer asked why he

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was at the residence and whether he “possessed any illegal drugs or narcotics.” (Internal

quotation marks omitted.) Id. The defendant denied possessing drugs, an officer repeated the

same question, and defendant again responded “no.” (Internal quotation marks omitted.) Id.

Defendant then consented to being searched, during which the officers recovered drugs. Id. at

1045-46. The trial court granted the defendant’s motion to quash his arrest and suppress

evidence. Id. at 1047. On appeal by the State, we found that the defendant was not merely

detained, but was in custody under Slater because the officers stood in front of and behind him

on the enclosed porch, which restricted his freedom of movement. Id. at 1053-54.

¶ 24 In contrast to Chestnut, here defendant spoke with only Burmisterz, who did not work

with another officer to block defendant in one area. Additionally, Burmisterz did not ask her

whether she “possessed any illegal drugs or narcotics,” but instead only asked if defendant had

“anything” on her. Thus, the situation in which defendant was questioned differed from

Chestnut, and Burmisterz was not required to give defendant Miranda warnings. Therefore,

defendant cannot show prejudice from trial counsel’s failure to allege a Miranda violation in the

motion to suppress, and her ineffective assistance claim fails under Strickland.

¶ 25 Based on the foregoing, the judgment of the circuit court is affirmed.

¶ 26 Affirmed.

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