FOURTH DIVISION February 17, 2011
No. 1-09-3337
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 95 CR 34971 (02) ) VICTOR TRIPP, ) The Honorable ) Matthew E. Coghlan, Defendant-Appellant. ) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Gallagher and Justice Pucinski concurred in the judgment and opinion.
OPINION
Here, we consider the second petition for postconviction relief of a defendant convicted of
armed robbery. Following a jury trial, defendant was sentenced to four concurrent terms of 55
years’ imprisonment for armed robbery in violation of section 18–2 of the Criminal Code of 1961
(720 ILCS 5/18–2 (West 1992)). As grounds for relief, defendant contends that the trial court
erred in denying him leave to file a successive postconviction petition in light of the United States
Supreme Court’s decision in Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710 (2009). For reasons
detailed below, we affirm the trial court.
BACKGROUND
On November 29, 1995, defendant and two others robbed a jewelry store located in 1-09-3337
southwest Chicago at gunpoint. Prior to trial, defendant filed a motion to quash his arrest and
suppress evidence, arguing that the officers lacked probable cause to search a footlocker found in
the backseat of defendant’s car at the time of his arrest. At a hearing on the motion, defendant
testified that he was standing at the corner of Douglas Boulevard and Sawyer Street in Chicago
speaking to Germaine Johnson, a codefendant. Defendant testified that he was legally parked on
Sawyer, facing south on the east side of the street, near the curb, approximately 10 feet from the
intersection. Defendant and Johnson talked on the corner for approximately 40 minutes before
police arrived. Defendant was about 12 feet from his car when he was arrested and was never in
the car while police were at the scene.
The State called officer Michael Soto, who testified that he was on patrol with his partner
driving southbound on Sawyer near the intersection of Douglas when he observed a car
obstructing traffic on Sawyer. The car, occupied by two black males, was parked in the middle of
the street. Officer Soto activated his car’s emergency equipment, exited the car, and approached
the driver’s side of the other car. Officer Soto asked the driver of the car, later identified as
defendant, for his license and proof of insurance. When defendant stated he did not have those
items, Officer Soto asked him to exit the vehicle and placed him under arrest. After defendant
exited the vehicle, with his passenger still in the front seat, Officer Soto noticed a handgun
between the two front seats. Officer Soto’s partner then instructed the other passenger, later
identified as Johnson, to exit the car and both were handcuffed and placed in the officers’ squad
car. After Officer Soto seized the weapon, he performed a search of the car and recalled that
defendant and Johnson partially fit the description of two of the three people who had robbed a
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jewelry store earlier that day. When Officer Soto searched the car, he discovered gray duct tape,
similar to the type used to bind the victims of the robbery, and a large footlocker. Officer Soto
and his partner removed the footlocker, pried open its side and saw “numerous amounts of
jewelry.” Officer Soto also recovered $1,000 in currency, a gold money clip, a gold chain, and
several keys from defendant. Officer Soto’s partner recovered a gold chain and two gold
medallions from Johnson. After hearing the parties’ arguments, the trial court denied the motion
to suppress, finding that the officers had probable cause to search the car.
On direct appeal to this court, defendant asserted that the trial court erred in denying his
motion for a directed finding and his motion to suppress, and that his sentence was excessive, all
of which were rejected by this court in a published opinion. People v. Tripp, 306 Ill. App. 3d 941
(1999). Shortly thereafter, our supreme court denied defendant’s petition for leave to appeal.
People v. Tripp, 185 Ill. 2d 661 (1999). Defendant then filed a pro se postconviction petition
asserting that this court erred when it considered new arguments presented by the State on appeal
which were not presented during his suppression hearing, and that his sentence was excessive and
disproportionate to that of his codefendant. On May 9, 2000, the trial court determined that the
petition was frivolous and patently without merit and was summarily dismissed pursuant to
section 122–2.1 of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122–2.1 (West
2004)).
On September 1, 2009, defendant filed his second postconviction petition, claiming that
his motion to suppress should be granted in light of the Supreme Court’s holding in Gant. On
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October 23, 2009, the trial court denied leave to file the petition on the basis that Gant does not
apply retroactively to collateral proceedings. This appeal followed.
ANALYSIS
The sole issue on appeal concerns defendant’s contention that the trial court improperly
denied him leave to file a successive petition for postconviction relief in violation of the Act.
Because the resolution of this issue requires the interpretation of a statute, our review is de novo.
People v. LaPointe, 227 Ill. 2d 39, 43 (2007).
Defendant first contends that the trial court erred in denying him leave to file a successive
postconviction petition based on the nonretroactivity of Gant because that determination was
reserved for second-stage proceedings. Defendant relies on People v. Boclair, 202 Ill. 2d 89, 101
(2002), citing the proposition that because “time limitations in the Act should be considered as an
affirmative defense and can be raised, waived, or forfeited, by the State,” they are inappropriate
grounds for dismissal in first-stage proceedings. This argument “ignores the fact that the Act
treats successive petitions differently than initial petitions.” LaPointe, 227 Ill. 2d at 44. While the
Act permits collateral constitutional challenges to criminal convictions and sentences, the Act
generally limits a petitioner to filing one petition. 725 ILCS 5/122–1 et seq. (West 2008); People
v. Holman, 191 Ill. 2d 204, 209 (2000). Section 5/122–1(f) of the Act provides:
“Only one petition may be filed by a petitioner under this Article without leave of the
court. Leave of court may be granted only if a petitioner demonstrates cause for his or her
failure to bring the claim in his or her initial post-conviction proceedings and prejudice
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results from that failure.” 725 ILCS 5/122–1(f) (West 2008).
The plain language of section 122–1(f) expressly conditions leave to file a successive
postconviction petition on the petitioner’s satisfaction of the cause-and-prejudice test. LaPointe,
227 Ill. 2d at 44. In People v. Tidwell, 236 Ill. 2d 150 (2010), the defendant filed a successive
petition for postconviction relief but did not explicitly ask for leave of court to file a successive
postconviction petition. Our supreme court held that “a successive postconviction petition is not
considered ‘filed’ for purposes of section 122–1(f), and further proceedings will not follow, until
leave is granted, a determination dependent upon a defendant's satisfaction of the cause-and-
prejudice test.” Tidwell, 236 Ill. 2d at 161. Our supreme court concluded that the trial court
properly performed the review called for by section 122–1(f), i.e. the cause-and-prejudice test, by
“enter[ing] a thorough and reasoned order, denying leave to file the successive postconviction
petition, based upon the contents of the petition submitted.” Tidwell, 236 Ill. 2d at 162. In other
words, “there was no jurisdictional bar to the circuit court’s sua sponte ruling on the matter.”
Tidwell, 236 Ill. 2d at 162.
Here, defendant filed a motion seeking leave to file a successive postconviction petition
based on Gant. The trial court considered, but ultimately rejected defendant’s allegations,
concluding that defendant failed to satisfy the cause-and-prejudice test. In our view, the trial
court conducted its analysis of defendant’s successive postconviction petition as required by
section 122–1(f) of the Act. We thus turn to the merits of the circuit court’s ruling on cause and
prejudice.
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Section 122–1(f) of the Act conditions leave to file a successive postconviction petition on
the petitioner’s satisfaction of the cause-and-prejudice test. To establish cause, petitioner must
identify an objective factor that impeded his ability to raise a specific claim during his initial
postconviction proceedings. 725 ILCS 5/122–1(f) (West 2008). Here, the State concedes that
the Gant decision, coming nine years after defendant’s initial postconviction petition, is indeed an
objective factor that impeded his ability to raise the issue during the first petition. We thus turn to
whether defendant has satisfied the prejudice prong of the cause-and-prejudice test.
To establish prejudice, defendant must show that the claim not raised during his initial
postconviction proceedings so infected the trial that the resulting conviction violated due process.
725 ILCS 5/122–1(f) (West 2008). Defendant contends that he was prejudiced when the trial
court admitted evidence obtained by the type of “search incident to arrest” that the Supreme
Court in Gant condemned. The State responds that Gant introduced a new rule of criminal
procedure, thus disqualifying it from being applied retroactively to matters on collateral review,
and also argues that under the facts of this case, the Gant rule would not bar admission of the
seized evidence because this is not a “search incident to arrest” case, specifically because this
court on direct appeal found that the officers had probable cause to search the vehicle because of
the presence of the gun in open view in the vehicle.
Our analysis of whether Gant introduced a new rule of criminal procedure is guided by the
Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989), adopted by our supreme court
in People v. Flowers, 138 Ill. 2d 218, 237 (1990). New constitutional rules of criminal procedure
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do not apply retroactively to cases on collateral review unless the new rule either: “(1) places
certain kinds of primary, private individual conduct beyond the power of the criminal law making
authority to proscribe, or (2) requires the observance of those procedures that are implicit in the
concept of ordered liberty.” Flowers, 138 Ill. 2d at 237 (citing Teague, 489 U.S. at 307).
The Teague Court explained that generally, “a case announces a new rule when it breaks
new ground or imposes a new obligation on the States or the Federal Government. [Citations.] To
put it differently, a case announces a new rule if the result was not dictated by precedent existing
at the time the defendant’s conviction became final.” (Emphasis in original.) Teague, 489 U.S. at
301; People v. Morris, 236 Ill. 2d 345, 359 (2010). Moreover, “ ‘the fact that a court says that
its decision is within the “logical compass” of an earlier decision, or indeed that it is “controlled”
by a prior decision, is not conclusive for purposes of deciding whether the current decision is a
“new rule” under Teague.’ ” Morris, 236 Ill. 2d at 360 (quoting Butler v. McKellar, 494 U.S.
407, 415 (1990)). Further, “a decision constitutes a new rule unless ‘a state court considering
[the] claim at the time [the] conviction became final would have felt compelled by existing
precedent to conclude that the rule *** was required by the Constitution.’ ” Morris, 236 Ill. 2d at
360 (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)).
Applying these principles to Gant, we conclude that a new rule was created in that case.
Generally, warrantless searches are “per se unreasonable” under the fourth amendment, subject to
limited exceptions, such as a search incident to a lawful arrest. Gant, __ U.S. at __, 129 S. Ct. at
1716. This exception “derives from interests in officer safety and evidence preservation that are
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typically implicated in arrest situations.” Gant, __ U.S. at __, 129 S. Ct. at 1716. In Chimel v.
California, 395 U.S. 752, 763 (1969), the Supreme Court held that a search incident to arrest is
limited to “the arrestee's person and the area ‘within his immediate control’-construing that phrase
to mean the area from within which he might gain possession of a weapon or destructible
evidence.”
The Supreme Court considered Chimel’s application to the automobile context in New
York v. Belton, 453 U.S. 454, 460 (1981). There, a police officer stopped a speeding car in which
the defendant was one of four occupants. Belton, 453 U.S. at 455. Suspecting that the
occupants possessed marijuana, the officer ordered the four occupants out of the vehicle, placed
them under arrest, and patted them down. Belton, 453 U.S. at 456. Without handcuffing the
arrestees, the officer then separated the four occupants so they would not be in physical touching
area of each other and searched the vehicle, including a jacket on the backseat, in which he found
cocaine. Belton, 453 U.S. at 456. The Supreme Court held that “when a policeman has made a
lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident
of that arrest, search the passenger compartment of that automobile” and any containers therein.
Belton, 453 U.S. at 460. The Supreme Court based this holding in large part on its generalization
“that articles inside the relatively narrow compass of the passenger compartment of an automobile
are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in
order to grab a weapon or evidentiary ite[m].’ ” Belton, 453 U.S. at 460 (quoting Chimel, 395
U.S. at 763).
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The Supreme Court applied the Belton rule in Thornton v. United States, 541 U.S. 615,
618 (2004), where a police officer attempted to pull over the defendant because his license plates
did not match the car he was driving. Before the officer had the chance to pull him over, the
defendant had parked in a parking lot and exited his vehicle. Thornton, 541 U.S. at 618. The
officer accosted the defendant, asked if he could search him, and found drugs in his pocket.
Thornton, 541 U.S. at 618. The defendant was arrested, handcuffed, and placed in the backseat
of the patrol car. Thornton, 541 U.S. at 618. Incident to the arrest, the officer searched the
defendant’s car and found a handgun under the driver’s seat. Thornton, 541 U.S. at 618. The
Supreme Court stated that the Belton rule applies, even if an officer does not make contact with
the arrestee until after he has left the vehicle, so long as the arrestee was a “ ‘recent occupant’ ”
of the vehicle. Thornton, 541 U.S. at 623-24.
With this backdrop, we turn to the Supreme Court’s decision in Gant, where the
defendant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car
before police officers searched his car and found cocaine in a jacket pocket. Gant, __ U.S. at __,
129 S. Ct. at 1714. The Supreme Court, applying the Chimel justifications of officer safety and
evidence preservation, first held that “Belton does not authorize a vehicle search incident to a
recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the
vehicle.” Gant, __ U.S. at __, 129 S. Ct. at 1714. Additionally, based on Justice Scalia’s
opinion concurring in the judgment of Thornton, the Supreme Court also held that “circumstances
unique to the automobile context justify a search incident to arrest when it is reasonable to believe
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that evidence of the offense of arrest might be found in the vehicle.” Gant, __ U.S. at __, 129 S.
Ct. at 1714. In so holding, the Supreme Court admitted that this finding “does not follow from
Chimel,” but reasoned that in some cases, “the offense of arrest will supply a basis for searching
the passenger compartment of an arrestee’s vehicle and any containers therein.” Gant, __ U.S. at
__, 129 S. Ct. at 1719.
Read in whole, Gant stands for the two-part proposition that “[p]olice may search a
vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest.” Gant, __ U.S. at __, 129 S. Ct. at 1723. The Supreme Court
articulated, “The experience of the 28 years since we decided Belton has shown that the
generalization underpinning the broad reading of that decision is unfounded. *** The doctrine of
stare decisis does not require us to approve routine constitutional violations.” Gant, __ U.S. at
__, 129 S. Ct. at 1723.
The Gant decision itself did not state that it was articulating a new rule, and the Supreme
Court has not yet specifically held that Gant constitutes a new rule. However, Justice Alito,
writing for the four dissenting justices, criticized the majority for overruling Belton’s “bright-line
rule,” which was reaffirmed by Thornton only five years prior to Gant, and replacing it with “a
new two-part rule.” Gant, __ U.S. at __, 129 S. Ct. at 1726 (Alito, J., dissenting, joined by
Roberts, C.J., and Kennedy and Breyer (except as to Part II-E), JJ.). We agree with the four
dissenting justices that Gant replaced Belton’s bright-line rule with a new two-part rule that
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significantly curtails an officer’s ability to search a vehicle incident to arrest.
Prior to Gant, police officers were permitted to search the passenger compartment of an
arrestee’s automobile contemporaneous to arrest, so long as the arrestee was a recent occupant of
that vehicle. In contrast, Gant’s two-part rule limits an officer’s ability to search a vehicle
incident to a recent occupant’s arrest where the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest. This rule imposes new obligations on police officers prior to
searching a vehicle incident to arrest. Similarly, courts enforcing the Gant rule must apply a new
test, first determining whether an arrestee is within reaching distance of an automobile and also
asking whether it was reasonable for an officer to believe the vehicle contained evidence of the
offense of arrest. Based on these new requirements, we conclude that Gant introduced a new
rule of law.1
1 While Illinois courts have not previously considered whether Gant introduced a new rule
of law, our conclusion is supported by various other courts’ reference to Gant as a “new rule.”
See, i.e., State v. Brown, No. 28430–1–III, slip op. at __ (Wash. Ct. App. January 13, 2011) (the
Gant decision “announced a new rule limiting the exception to the warrant requirement for
searches incident to arrest); United States v. Ferguson, No. 09–5056, 2010 WL 3521992, at *2
(4th Cir. Sept. 9, 2010) (Gant court “set forth new rules governing warrantless searches arising
out of vehicle stops); Baxter v. State, 2010 OK CR 20, ¶ 11, 238 P. 3d 934, 937 (“Gant is a
newly declared rule of constitutional criminal procedure ***.”).
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Having reached this conclusion, we turn to whether the new rule should be applied
retroactively to cases on collateral review. Retroactive application would only be appropriate if
the new rule falls within one of the Teague exceptions. The first Teague exception is inapplicable,
as the Gant rule does not legalize primary, private individual conduct and does not reinterpret a
statute. Under the second exception, the Gant rule would apply if it represents a “watershed rule”
of criminal procedure implicit in the concept of ordered liberty and central to the accuracy of a
conviction. This exception should be narrowly construed. Flowers, 138 Ill. 2d at 242. Since
Teague, the “Supreme Court has rejected every claim brought before it alleging that a new rule
satisfies the requirements for watershed status.” Morris, 236 Ill. 2d at 361. The only “watershed
rule” identified by the Supreme Court was pronounced 16 years before Teague in Gideon v.
Wainwright, 372 U.S. 335, 344-45 (1963), where the Supreme Court held that counsel must be
appointed for any indigent defendant charged with a felony because the denial of such
representation presents an intolerably high risk of an unreliable verdict. The Supreme Court has
explained that the second Teague exception:
“ ‘cannot be met simply by showing that a new procedural rule is based on a “bedrock”
right. We have frequently held that the Teague bar to retroactivity applies to new rules
that are based on “bedrock” constitutional rights. [Citation.] Similarly, “[t]hat a new
procedural rule is ‘fundamental’ in some abstract sense is not enough.” [Citation.] Instead,
in order to meet this requirement, a new rule must itself constitute a previously
unrecognized bedrock procedural element that is essential to the fairness of a proceeding.
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In applying this requirement, we again have looked to the example of Gideon, and “we
have not hesitated to hold that less sweeping and fundamental rules” do not qualify.
[Citation.]’ ” (Emphasis in original.) Morris, 236 Ill. 2d at 363 (quoting Whorton v.
Bockting, 549 U.S. 406, 420-21 (2007)).
The Gant rule, while certainly important, cannot be characterized as a profound and
sweeping change to rules of criminal procedure which is essential to the fundamental fairness of
criminal proceedings. This exception must be narrowly construed and we do not believe that the
Gant rule established such a component of basic due process so as to fall within it. See Flowers,
138 Ill. 2d at 242. Warrantless searches were per se unreasonable prior to Gant and remain so in
the aftermath of Gant. Rather than introducing a profound and sweeping change, Gant instead
introduced a new rule regarding the already-existing limitations placed upon officers when
conducting a search incident to arrest. Accordingly, the Gant rule does not represent a watershed
rule of criminal procedure that requires retroactive application to cases on collateral review.
For the above-stated reasons, we hold that Gant does not apply retroactively on collateral
review. Therefore, the trial court properly denied defendant leave to file his successive
postconviction petition because defendant has not satisfied the prejudice prong of the cause-and-
prejudice test.
Finally, even if we were to rule contrarily on the issue of whether Gant would apply
retroactively on collateral review, defendant would not satisfy the prejudice test because on direct
appeal, this court specifically determined that the police officers had probable cause to search
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defendant’s car after one of the officers observed a handgun in plain view in the car. Tripp, 306
Ill. App. 3d at 952 (citing People v. Tingle, 279 Ill. App. 3d 706, 715 (1996)) (once officer found
the first gun, it was reasonable for officer to search the entire car for evidence of criminal
activity)). Thus, this court has previously determined that the officers had probable cause to
search defendant’s vehicle, regardless of whether that search was incident to arrest. In light of
this determination, defendant was not prejudiced by his failure to raise Gant because the search
was upheld on independent probable cause grounds. “Under the law of the case doctrine, issues
presented and disposed of by a reviewing court in a prior appeal are binding upon remand to the
trial court and on subsequent appeal to the reviewing court unless the facts presented are so
different as to require a different interpretation or a higher court has changed the law.” People v.
Sutton, 375 Ill. App. 3d 889, 894 (2007). Accordingly, had we determined that Gant applied to
defendant’s successive postconviction petition, he still would have failed to satisfy the prejudice
element of the cause-and-prejudice test.
Affirmed.
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REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each Case)
Plea se Use THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Following
Form: ) Circuit Court of Plaintiff-Appellee, ) Cook County. Complete ) TITLE v. ) No. 95 CR 34971 (02) of Case ) VICTOR TRIPP, ) The Honorable ) Matthew E. Coghlan, Defendant-Appellant. ) Judge Presiding. Docket No. No. 1-09-3337 Appellate Court of Illinois COURT First District, FOURTH Division
February 17, 2011 Opinion Filed (Give month, day and year)
JUSTICES JUSTICE LAVIN delivered the judgment of the court, with opinion. Gallagher, P.J., and Pucinski, J., concurred. APPEAL Lower Court and Trial Judge(s) in form indicated in the margin: from the Circuit Ct. The Honorable Matthew E. Coghlan, Judge Presiding. of Cook County.
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For Indicate if attorney represents APPELLANTS or APPELLEES and include APPELLAN TS, attorneys of counsel. Indicate the word NONE if not represented. John Doe, of Chicago. Attorneys for Petitioner/Appellant:
For Michael J. Pelletier, State Appellate Defender APPELLEE Alan D. Goldberg,Deputy Defender S, Smith and Rachel Moran, Assistant Appellate Defender Smith of 203 N. LaSAlle St., 24th floor Chicago, Joseph Chicago, IL 60601 Brown, (of Counsel) 312.814.5472 Attorneys for Respondent/Appellee: Also add attorneys for Anita Alvarez, State’s Attorney third-party Alan Spellberg, Douglas Harvath, Joseph M. Preiser, ASA’s of Counsel appellants or Room 309- Daley Center appellees. Chicago, IL 60602