                         NO. 4-09-0153        Filed 7/8/10

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Adams County
GREGORY L. MEYER,                      )    No. 06CF743
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Scott H. Walden,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE McCULLOUGH delivered the opinion of the court:

          In February 2007, the State charged defendant with two

counts of unlawful possession of a weapon by a felon, a Class 3

felony (720 ILCS 5/24-1.1(a), (e) (West 2006)).    The State

alleged that defendant knowingly possessed a Llama 9-millimeter

handgun (count IV) and 9-millimeter ammunition (count V), while

having a prior felony conviction for burglary.    At that time, the

State also charged defendant with two counts of delivery of a

controlled substance (hydrocodone), one count of unlawful deliv-

ery of a controlled substance (morphine), and one count of

unlawful possession with intent to deliver a controlled substance

(hydrocodone) (720 ILCS 570/401(d) (West 2006)).    The State later

severed defendant’s drug and weapons charges, going to trial

first on the weapons charges.

          In June 2007, a jury convicted defendant of two counts

of unlawful possession of a weapon by a felon.    In July 2007,

defendant entered a negotiated guilty plea to one count of

delivery of a controlled substance, and the State dismissed the
remaining charges.   In August 2007, the trial court sentenced

defendant to three years’ imprisonment on each weapons count and

four years on the delivery count, with all sentences to be served

concurrently.   In November 2008, this court dismissed defendant’s

initial appeal from his weapons convictions because of a pending

motion to reduce sentence in People v. Meyer, No. 4-08-0039, slip

order at 9 (November 13, 2008) (unpublished order pursuant to

Supreme Court Rule 23).    On remand, the court permitted defendant

to withdraw his motion to reduce sentence because he had finished

serving his prison term.

          Defendant again appeals his convictions for unlawful

possession of a weapon and ammunition by a felon.   Defendant

argues (1) his trial counsel was ineffective for failing (a) to

move to suppress video taken of the inside of his home by a

confidential informant, (b) to challenge the warrant application

as fatally defective, and (c) to stipulate to defendant’s status

as a convicted felon; (2) the evidence was insufficient to

sustain a conviction for possession of handgun ammunition, as the

State failed to show that the ammunition was live; (3) the State

committed plain error when it introduced evidence regarding

defendant’s prior felony conviction; (4) plain error occurred

when the videotape was admitted without a proper foundation; and

(5) the prosecutor committed reversible error when he made

improper comments on the evidence during closing arguments. We

affirm.

          On December 20, 2006, Harold Meyers, a confidential


                                - 2 -
informant of the West Central Illinois Task Force, agreed to wear

a buttonhole camera during the controlled purchase of narcotics

from defendant.    Following the purchase, Meyers filled out an

affidavit, which stated the following:

                  "1. Jane Doe is not my real name, but is

          the name I am using for this search warrant.

                  2. *** I have read the description for

          [defendant’s] trailer that is contained in

          the search warrant and it is true and cor-

          rect.

                  3. *** I am familiar with the color and

          texture of Hydrocodone, Morphine, and Adderal

          through my own personal use.

                  4. Within the last 72 hours I have been

          to the residence of [defendant] ***.    At the

          time I was inside the residence, I saw ap-

          proximately 20-30 Hydrocodone pills lying on

          top of a table in plain view inside of the

          kitchen area ***.

                  5. On prior occasions I have received

          and purchased Hydrocodone from [defendant].

                  6. I was also shown a photograph of a

          subject who I identified as [defendant].

                  7. I have not been promised anything in

          return for my cooperation in this case."

          In conjunction with Meyers’s affidavit, Officer Brian


                                 - 3 -
Martin of the Quincy police department filed a complaint for a

search warrant of defendant’s trailer.    The application further

alleged Meyers had informed police that defendant was selling

prescription narcotics out of his home for between $3 and $10 per

pill.    On December 21, a trial judge granted police a warrant to

search for prescription narcotics in defendant’s home.    Neither

the warrant application nor Meyers’s affidavit mentioned the

firearm, the ammunition, the controlled purchase, or the video.

            On December 22, 2006, police executed the search

warrant.    A search of the premises turned up a 9-millimeter Llama

handgun, 9 rounds of unfired ammunition, one 9-millimeter maga-

zine, 20 tablets of hydrocodone, and proof of address.    The

handgun was found inside a lockbox, which police also confis-

cated.

            Also on December 22, the State filed a four-count

information against defendant.    In February 2007, a grand jury

indictment containing the charges listed above superceded the

original information.

            Prior to trial, the State sought defendant’s stipula-

tion that he had a 1972 felony burglary conviction.    Defense

counsel declined to stipulate to the prior conviction.

            At defendant’s June 2007 trial, the State introduced as

evidence the testimony of Officer Martin and Inspector Lee

Mangold of the Quincy police department, along with the digital

video disc (DVD) showing defendant holding pills and a firearm

taken by Meyers.    The DVD was played for the jury.   Defendant’s


                                 - 4 -
trial counsel did not object to the DVD being played.

            The State then offered defendant’s indictment for

burglary, guilty-plea form, jury-waiver form, and probation order

as proof of defendant’s 1972 felony burglary conviction.

            Defendant testified in his own behalf.   Defendant

admitted that he was the person on the video holding the handgun.

Defendant also admitted that he had received the handgun a few

days before from a cousin for safekeeping.    He placed it in the

lockbox because his relatives’ children were frequently in his

home over the holidays.    Defendant also admitted that he did not

have a valid firearm owner’s identification (FOID) card and had

been convicted of burglary in 1972.

            David Winters testified that he was defendant’s cousin.

Winters purchased the handgun and ammunition, which was live, in

Arkansas.    Winters did not have a valid FOID card, so he gave the

handgun and ammunition to defendant for safekeeping.     Defendant

had the only key to the lockbox in which the handgun and ammuni-

tion were found.

            As stated, this court dismissed defendant’s initial

appeal because the trial court had not ruled on his motion to

reduce sentence.    Meyer, slip order at 9.   Following the dis-

missal, the court permitted defendant to withdraw his motion as

moot because he had finished serving his prison term.

            This appeal followed.

            Defendant first argues that his trial counsel rendered

ineffective assistance when he (1) failed to move to suppress the


                                - 5 -
video as the product of an illegal search, (2) failed to chal-

lenge the warrant itself as defective, and (3) declined to

stipulate to defendant’s status as a felon.

           To sustain a claim for ineffective assistance of

counsel, the defendant must show that counsel’s performance was

deficient and, but for the deficient performance, a reasonable

probability exists that the outcome of the proceeding would have

been different.   People v. Colon, 225 Ill. 2d 125, 135, 866

N.E.2d 207, 213 (2007).   Performance is deficient where it is

unreasonable under prevailing professional standards.     Colon, 225

Ill. 2d at 135, 866 N.E.2d at 213.     A reasonable probability is

one sufficient to undermine our confidence in the outcome of the

proceeding.   People v. Manns, 373 Ill. App. 3d 232, 239, 869

N.E.2d 437, 442 (2007).   The failure to satisfy either prong of

the test is fatal to an ineffective-assistance claim.     Colon, 225

Ill. 2d at 135, 866 N.E.2d at 213.

           Defendant first argues that the State violated his

fourth-amendment right to be free from unreasonable searches when

Inspector Mangold sent Meyers into his home with a concealed

video camera without first obtaining a warrant.

           The fourth amendment protects people against unreasona-

ble government searches and seizures of persons, houses, papers,

papers, and effects.   U.S. Const., amend. IV.   The fourth amend-

ment does not protect anything that the defendant knowingly

exposes to another member of the public, including a government

agent.   Hoffa v. United States, 385 U.S. 293, 302-03, 17 L. Ed.


                               - 6 -
2d 374, 382-83, 87 S. Ct. 408, 413-14 (1966).    As the Hoffa Court

stated, the fourth amendment does not protect against "a wrong-

doer’s misplaced belief that a person to whom he voluntarily

confides his wrongdoing will not reveal it."     Hoffa, 385 U.S. at

302, 17 L. Ed. 2d at 382, 87 S. Ct. at 413.    In Lopez v. United

States, the United States Supreme Court held that the defendant

had no privacy interest sufficient to protect against the admis-

sion of the recording of a conversation between the defendant and

a government agent, made by the agent himself.     Lopez v. United

States, 373 U.S. 427, 438, 10 L. Ed. 2d 462, 470, 83 S. Ct. 1381,

1387-88 (1963).   Following the Supreme Court’s reasoning from

Lopez, federal courts of appeal have held that video recordings

obtained by or with the consent of a government agent do not

constitute an unconstitutional search.   See, e.g., United States

v. Brathwaite, 458 F.3d 376, 381 (5th Cir. 2006); United States

v. Lee, 359 F.3d 194, 201 (3d Cir. 2004) (holding no violation

occurred where the defendant was in the room but the recording

device was not on his person); United States v. Davis, 326 F.3d

361, 367 (2d Cir. 2003).

          Defendant had no constitutionally protected privacy

interest in any activity that Meyers viewed in his home.    This

includes defendant’s possession of the handgun.    Meyers simply

obtained the most reliable evidence of events that he witnessed

and could have testified to.   Because any motion to suppress the

video on the grounds that it was obtained in violation of the

fourth amendment would have failed, defendant’s counsel’s deci-


                               - 7 -
sion not to challenge the video on constitutional grounds was not

deficient.    Moreover, no prejudice arose because the video would

not have been suppressed.

          Defendant further argues that article I, section 6, of

the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §6)

bars the State from having an informant record activities other-

wise hidden from the general public without the suspect’s

permission.   Defendant’s only citation to authority is for the

very general proposition that the Illinois Constitution of 1970

provides more privacy protections for individuals than the

federal constitution.   Absent persuasive reasoning to the cont-

rary, Illinois courts follow the lockstep doctrine and interpret

article I, section 6, of the Illinois Constitution of 1970 (Ill.

Const. 1970, art. I, §6) to provide privacy protections equal to

those of the fourth amendment (U.S. Const., amend. IV).   See,

e.g., People v. Krueger, 175 Ill. 2d 60, 70-76, 675 N.E.2d 604,

610-12 (1996) (declining to extend good-faith exception to

searches conducted to an unconstitutional statute).   Defendant

has failed to provide any citation to authority or argument as to

how this court could interpret article I, section 6, in a manner

contrary to the fourth amendment in this situation.   For that

reason, defendant’s contentions are forfeited.

          Defendant next argues that his counsel was ineffective

for failing to move for a Franks hearing (see Franks v. Delaware,

438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674,

2684-85 (1978)) to challenge the veracity of statements made in


                                - 8 -
Meyers’s affidavit.   Defendant bases his argument upon a state-

ment by the prosecutor at trial in June 2007, almost six months

after the filing of the search warrant, that Meyers had been

arrested but not charged on a felony drug charge due to his

cooperation in this case and others.    Defendant has put forth no

evidence to show that, at the time Meyers filed his affidavit, he

had been promised or expected to receive consideration for his

work as a confidential informant.   Likewise, defendant has not

shown that Officer Martin knew Meyers had received, or expected

to receive, consideration for his work as an informant when he

filed the search-warrant application.   Defendant has the burden

to show that prejudice arose as a result of counsel’s deficient

performance.   The record provided in this case is simply devoid

of such facts.   Defendant has failed to show that he was entitled

to a Franks hearing, much less that he would have prevailed at

one.

          Defendant contends that his counsel was ineffective for

failing to challenge the warrant as defective because it did not

contain any mention of the fact that police officers had watched

video of defendant holding a bottle of pills and a handgun.

Defendant’s argument is not well taken.    An affidavit including

the contents of the video would have strengthened the State’s

evidence for a warrant, not weakened it.   See People v. Bryant,

389 Ill. App. 3d 500, 531, 906 N.E.2d 129, 153-54 (2009) (reject-

ing the same argument).   Therefore, defendant’s argument fails.

          Defendant next argues that the warrant application was


                               - 9 -
deficient on its face because it failed to establish that he was

involved in criminal activity.   According to defendant, "[t]here

is no assertion that these recent events described (simply seeing

some pills) were criminal."   The State argues that the complaint

was sufficient in that it showed (1) Meyers saw hydrocodone pills

inside defendant’s residence within 72 hours of filing and (2)

Meyers had purchased prescription narcotic pills from defendant

in the past.

          This court reviews a probable-cause determination for

whether the issuing magistrate had a substantial basis for

determining probable cause existed.    People v. McCarty, 223 Ill.

2d 109, 153, 858 N.E.2d 15, 42 (2006).    "The extent of details

contained in a complaint for search warrant matters."    Bryant,

389 Ill. App. 3d at 521, 906 N.E.2d at 146.   A tip providing

specific and detailed information regarding the alleged criminal

activity suggests that the informant obtained his information in

a reliable fashion.   People v. Tisler, 103 Ill. 2d 226, 239, 469

N.E.2d 147, 154 (1984).   The warrant established that Meyers had

been inside defendant’s home within the past three days.   While

inside, Meyers had seen between 20 and 30 hydrocodone pills, with

which he was familiar from personal experience.   Meyers knew

where the pills were stored, the kitchen, and how much they sold

for, $3 to $10.

          The affidavit also indicated that Meyers had firsthand

knowledge of defendant’s possession of the pills.   See People v.

Smith, 372 Ill. App. 3d 179, 184, 865 N.E.2d 502, 506 (2007)


                              - 10 -
(stating basis of the informant’s knowledge is a factor to

consider).    Again, Meyers stated that he had been in defendant’s

home within 72 hours and had seen hydrocodone pills on the

kitchen table at that time.

            Finally, Meyers also made two admissions against

interest, which the magistrate could consider as evidence of his

credibility.    See People v. Saiken, 49 Ill. 2d 504, 512, 275

N.E.2d 381, 386 (1971) (considering admission against interest in

probable-cause analysis).    Meyers admitted that his familiarity

with hydrocodone came from personal use.    He also admitted that

he had purchased pills illegally from defendant in the past.

Although neither admission was sufficiently detailed to prose-

cute, Meyers nonetheless admitted past illegal conduct in a court

document.

            This court determines whether the issuing magistrate

had a substantial basis upon which to issue a warrant.    The

information contained in Meyers’s affidavit and Officer Martin’s

complaint provided the magistrate with a substantial basis upon

which to issue a search warrant.    Because the warrant is not

facially deficient, no prejudice arose to defendant when his

counsel failed to challenge its issuance.    For that reason,

defendant’s claim of ineffective assistance of counsel fails.

            Defendant next argues that his counsel was ineffective

when he declined to stipulate to defendant’s status as a felon.

According to defendant, evidence of his 1972 burglary conviction

was unfairly prejudicial.    The State argues that defendant


                               - 11 -
suffered no prejudice sufficient to undermine confidence in the

outcome of his trial.

           Defendant suffered no prejudice requiring reversal in

this case.   His prior conviction was for burglary in 1972.    In

this case, defendant was charged with unlawful possession of a

firearm.   The crimes are dissimilar in nature.   Little danger

exists that the jury convicted defendant of this crime based upon

an improper propensity inference.   Also, defendant’s burglary

conviction was over 30 years old at the time of trial.    No

evidence suggested that defendant was a habitual criminal from

whom society needed protection.   Therefore, defendant has failed

to show that counsel’s failure to stipulate resulted in prejudice

sufficient to require reversal of his conviction.

           Defendant also argues that counsel’s failure to stipul-

ate was prejudicial plain error so serious that it affected the

fairness of his trial.   Defendant contends that prejudice arose

from (1) the mere admission of the nature of his prior conviction

and (2) the admission of his jury-waiver form, guilty-plea form,

probation-conditions form, and indictment as exhibits.    Any error

in the admission of defendant’s burglary conviction did not rise

to the level of plain error.   Again, this court has no reason to

presume prejudice from the jury’s receipt of 35-year-old court

documents for an offense wholly unrelated to the current offense.

           Defendant argues that the State failed to prove his

conviction beyond a reasonable doubt because it did not introduce

evidence that the ammunition was live.   The supreme court consid-


                               - 12 -
ered and rejected the argument defendant makes in People v. Lee,

48 Ill. 2d 272, 281, 269 N.E.2d 488, 493 (1971).    The Lee court

held that the statute did not require proof that the ammunition

was live to sustain a conviction, stating as follows:

           "The statutory requirement was that the ammu-

           nition be 'designed to be used or adaptable

           to use in a firearm.'   Whether the shells

           introduced at trial were of this character

           was for the trier of fact to decide."   Lee,

           48 Ill. 2d at 281, 269 N.E.2d at 493, quoting

           Ill. Rev. Stat. 1969, ch. 38, par. 83-1.1(4).

The statutory definition of "firearm ammunition" remains

unchanged.   See 430 ILCS 65/1.1 (West 2006); see also 720 ILCS

5/2-7.1 (West 2006) (giving firearm ammunition the definition

found in the Firearm Owners Identification Card Act).     As a

result, defendant’s argument fails.

           Defendant contends that the trial court committed

prejudicial plain error when it permitted the State to admit the

video of defendant holding the handgun without a proper founda-

tion.   The State argues that any error in the video’s admission

did not rise to the level of plain error.

           Defendant concedes that he failed to object at trial

and the alleged error must be reviewed for plain error.     See

People v. Sorrels, 389 Ill. App. 3d 547, 552, 906 N.E.2d 788, 793

(2009) (requiring a timely objection at trial and in a posttrial

motion to preserve error for review).    The plain-error doctrine


                              - 13 -
permits review of a forfeited error, in pertinent part, where "a

clear or obvious error occurs and that error is so serious that

it affected the fairness of the defendant's trial and challenged

the integrity of the judicial process, regardless of the close-

ness of the evidence."    People v. Piatkowski, 225 Ill. 2d 551,

565, 870 N.E.2d 403, 410-11 (2007).

            Assuming, arguendo, that the foundation for admission

of the video was deficient, any error in its admission did not

rise to the level of plain error.    Inspector Mangold testified

that he equipped Meyers with a Hawk video surveillance camera and

turned it on right before Meyers entered defendant’s residence.

After Meyers exited the residence, Inspector Mangold took the

video camera back from Meyers.    Inspector Mangold knew of no

manner to alter or tamper with video recorded using the Hawk.      To

prevent tampering, the camera runs in segments, which restart

every time the camera is turned on or off.    There was only one

segment on the camera when Inspector Mangold took it from Meyers.

            Inspector Mangold further testified that he reviewed

the DVD before executing the search warrant.    According to his

testimony, the DVD fairly and accurately depicted the trailer’s

contents.    The State also had Meyers on its list of proposed

witnesses, and the record contains a subpoena for Meyers.    The

best practice would have been for the State to have Meyers lay a

proper foundation for the video or to secure a stipulation from

defense counsel as to foundation.    However, the failure to do so

did not affect the fairness of defendant’s trial or challenge the


                               - 14 -
integrity of the process leading to his conviction.

            Defendant next argues that the prosecutor committed

plain error on cross-examination and closing argument when he

brought out the facts that defendant did not have a FOID card,

showed Meyers the gun while children were present, and knew

Meyers was a convicted felon attempting to purchase a gun.

Because defendant failed to preserve any of these arguments, we

review for plain error.    A review of the record shows no error

was committed.

            On cross-examination, each fact impeached defendant’s

credibility and was thus permissible.    Defense counsel’s closing

argument was essentially a plea for lenity from the jury because

defendant was a good person trying to help his cousin.    Because

defense counsel’s argument invited a response, the prosecutor did

not err during closing argument.

            For the reason stated, we affirm the trial court’s

judgment.    As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

            Affirmed.

            STEIGMANN, J., concurs.

            APPLETON, J., dissents.




                               - 15 -
           JUSTICE APPLETON, dissenting:

           I respectfully dissent from the majority's decision

that defendant had no constitutionally protected privacy interest

to prohibit a video recording of his home.     While there is no

doubt that the government agent, Harold Meyers, could report to

the police any evidence of wrongdoing he saw occurring in defen-

dant's home and testify to the same at defendant's trial, the

video recording constitutes a warrantless search that is unlawful

under the fourth amendment to the constitution.     U.S. Const.,

amend. IV.   Testimony of an undercover source may be attacked at

trial.   A video recording cannot be rebutted or diminished in

terms of evidentiary veracity.

           I am not unaware that other courts have determined this

issue to the contrary.   See Davis, 326 F.3d at 367.    I find the

extensive analysis, however, made of this issue by the dissent of

Justice Harlan in United States v. White, 401 U.S. 745, 28 L. Ed.

2d 453, 91 S. Ct. 1122 (1971), to be much more probative.     I see

no reason to marginalize the clear constitutional prohibition

against warrantless searches and seizures for either police

expediency or prosecutorial overkill.      The person sent into

defendant's home by the police could have easily reported to them

what, if anything, he had seen and that information could have

been used to obtain a search warrant in due course.




                              - 16 -
