                                        2018 IL App (3d) 160100

                                Opinion filed August 1, 2018
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2018

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 14th Judicial Circuit,
                                            )     Whiteside County, Illinois.
           Plaintiff-Appellee,              )
                                            )     Appeal No. 3-16-0100
           v. 	                             )     Circuit No. 15-CF-62

                                            )

     ALFRED G. LEE,                         )

                                            )     Honorable Stanley B. Steines,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion. 

            Justice Holdridge specially concurred, with opinion. 

            Justice O’Brien specially concurred, with opinion.


                                               OPINION


¶1          On February 24, 2015, the State charged defendant, Alfred G. Lee, by information with

     knowingly possessing more than 15, but less than 100, grams of a substance that contained

     cocaine. Police seized the substance from defendant’s home while executing a search warrant in

     an unrelated criminal investigation. Defendant’s pretrial motion to suppress argued that the

     substance was the fruit of an improper search because it was outside the warrant’s scope and not

     in plain view. The trial court denied the motion. A jury convicted defendant; he now appeals the

     conviction. He claims that trial counsel provided ineffective assistance by making a frivolous
     legal argument in support of the motion to suppress; counsel also failed to renew the motion after

     the officer who found the contraband testified at a subsequent compulsory joinder hearing.

     Defendant does not challenge his sentence or the trial court’s rulings on his motion to suppress

     and compulsory joinder motion. We affirm defendant’s conviction.

¶2                                           BACKGROUND

¶3          In October 2014, Sterling police investigated defendant’s involvement in a shooting. A

     witness identified defendant as the shooter. Police obtained a warrant to search defendant’s home

     for evidence related to the shooting. Several law enforcement officers executed the warrant on

     October 19, 2014. Detective Alex Chavira found the substance under defendant’s bed sheets.

     After the State charged defendant, defense counsel filed a motion to suppress the cocaine

     substance at issue. Defendant’s motion argued that the substance fell outside of the warrant’s

     scope and was not in plain view; police could not expect to find evidence related to the shooting

     under defendant’s bed sheets.

¶4          The trial court heard the motion to suppress on April 28, 2015. Chavira testified that he

     obtained the search warrant and assisted in its execution. After he pulled back defendant’s bed

     sheets, Chavira found knotted, plastic bags that contained a brown, powdery substance. The bags

     were concealed in a larger plastic bag. In Chavira’s experience, this packaging method suggested

     that the bags contained illicit drugs. He believed that the substance was either heroin or a “bad

     batch” of cocaine. The court denied defendant’s motion to suppress. It concluded that Chavira

     and the other officers lawfully accessed the location where Chavira found the substance; they

     saw the substance in plain view while conducting a legal search.

¶5          On August 4, 2015, defense counsel filed a motion to dismiss. The motion alleged a

     speedy trial violation premised on compulsory joinder. Counsel filed a compulsory joinder



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     motion on September 22. It claimed that the State failed to try defendant’s drug case within the

     statutory period (725 ILCS 5/103-5 (West 2016)), which began immediately after police

     executed the search warrant. Counsel argued that compulsory joinder principles required the

     State to file the drug charges and join them with the shooting charges immediately after police

     seized the cocaine substance in October 2014. Instead, the State filed the drug charges after the

     crime lab confirmed that the substance contained cocaine in February 2015.

¶6             Detective Chavira testified at the compulsory joinder hearing on October 6, 2015. For the

     most part, he restated his previous testimony. However, he added that he had “no idea” what the

     plastic bags contained when he discovered them during the search. He believed the substance

     looked like oatmeal. He did not conduct a field test. He did not list the substance as “suspected

     contraband” in the inventory record from the search. Chavira never knew the substance

     contained illicit drugs until the crime lab returned its test results in February 2015.

¶7             The court denied defendant’s speedy trial and compulsory joinder motions. The court

     stated:

               “I think too that because of the unknown substance, the State did not have charges they

               could file [when police seized the substance] *** it is fair not only to the State but also to

               any defendant that the State not file any charges until they know *** that that substance

               is contraband.”

     Neither the State nor police knew the substance’s composition until the crime lab tested it and

     returned the results several months after Chavira seized it. The court also noted that “even if

     joinder were applicable, we know that it would be prejudicial to the Defendant to try these two

     cases together” because the shooting and drug charges were unrelated.




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¶8            Defendant’s trial began on October 13, 2015. The substance and the crime lab’s test

       results served as the State’s primary evidence. The jury convicted defendant. The court entered

       the conviction and sentenced him to six years in prison. On December 11, defense counsel filed a

       motion for a new trial, which renewed the compulsory joinder issue and argued that the State

       failed to prove defendant guilty beyond a reasonable doubt. The court denied the motion. This

       appeal followed.

¶9                                                ANALYSIS

¶ 10          Defendant asserts that trial counsel provided ineffective assistance by failing to renew the

       motion to suppress after Detective Chavira testified at the compulsory joinder hearing. He also

       claims that counsel made a frivolous argument that the search exceeded the warrant’s scope in

       the motion to suppress; the seizure was improper, not the search. According to defendant,

       counsel should have renewed the motion after Chavira testified that he could not initially identify

       the substance with certainty; this testimony rendered the seizure improper. Because counsel

       failed to renew the motion to suppress, defendant cannot use Chavira’s testimony at the

       compulsory joinder hearing to appeal the trial court’s earlier suppression order. See People v.

       Brooks, 187 Ill. 2d 91, 127-28 (1999).

¶ 11          We review ineffective assistance claims under the two-prong test set forth in Strickland v.

       Washington, 466 U.S. 668 (1984). The “performance prong” requires defendants to show that

       counsel performed deficiently under prevailing professional norms. Id. at 687-88. The “prejudice

       prong” requires defendants to show “a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

       reasonable probability is one sufficient to undermine confidence in the outcome. Id. Even if we




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       assumed, arguendo, that defendant satisfied the performance prong, we would nonetheless affirm

       his conviction because he cannot demonstrate the requisite prejudice.

¶ 12          The thrust of defendant’s prejudice argument is that the State could not have admitted the

       substance as evidence at trial if counsel argued that Detective Chavira’s seizure was

       unconstitutional: “With the cocaine suppressed, the State would have been unable to continue the

       prosecution.” Although this statement may be true based on this case’s facts, it assumes that “the

       trial court would have had no choice but to suppress the cocaine” if counsel made the seizure

       argument instead of the search argument. We disagree with defendant’s assumption.

¶ 13          In Horton v. California, 496 U.S. 128, 136-37 (1990), the Supreme Court officially

       adopted a long-recognized standard that, for police to properly seize evidence in plain view, its

       “incriminating character” must be immediately apparent. Defendant claims that the substance’s

       incriminating character was not immediately apparent because Detective Chavira admittedly did

       not know that the substance contained cocaine. In fact, he testified at the compulsory joinder

       hearing that the substance looked like oatmeal.

¶ 14          Defendant relies heavily on People v. Humphrey, 361 Ill. App. 3d 947 (2005), where a

       police officer stopped a motorist for speeding. During the stop, the officer noticed a container

       holding hundreds of pills near the passenger’s feet. The officer seized the pills. He later testified

       that the amount of pills in the container made him believe that they were contraband. It turned

       out that the pills contained pseudoephedrine; the State charged defendant with unlawful

       possession of methamphetamine manufacturing chemicals. However, the court held that the

       officer improperly seized the pills because he did not know that they contained pseudoephedrine

       or whether possessing the pills constituted a crime. Id. at 950-51.




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¶ 15           We reject defendant’s position that Humphrey should influence our decision in this case.

       The opinion of one appellate court district, division, or panel is not binding on others. O’Casek v.

       Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008). The Humphrey majority

       seems to support defendant’s position that “immediately apparent” means that a law enforcement

       officer must immediately know an item is evidence of a crime. That is not the proper standard.

       To the extent that the Humphrey court held that it is, we decline to follow the court’s holding

¶ 16           The Supreme Court has described “immediately apparent” as “an unhappy choice of

       words, since it can be taken to imply that an unduly high degree of certainty as to the

       incriminatory character of evidence is necessary.” Texas v. Brown, 460 U.S. 730, 741 (1983).

       Essentially, the “immediately apparent” element hinges on a probable cause determination; it

       does not require a law enforcement officer to know that an item is contraband or evidence of a

       crime. People v. Jones, 215 Ill. 2d 261, 277 (2005).

¶ 17           Probable cause “ ‘is not a high bar.’ ” District of Columbia v. Wesby, 583 U.S. ___, ___,

       138 S. Ct. 577, 586 (2018) (quoting Kaley v. United States, 571 U.S. 320, ___, 134 S. Ct. 1090,

       1103 (2014)). It exists if, from the standpoint of an objectively reasonable officer, the items or

       events at issue create a reasonable probability that defendant committed or is committing a

       crime. See id. at ___ n.2, 138 S. Ct. at 584 n.2; Maryland v. Pringle, 540 U.S. 366, 370-71

       (2003); Jones, 215 Ill. 2d at 277. It is an objective, not subjective, test.

¶ 18           Defendant conjures a far-fetched story in an attempt to portray Detective Chavira’s

       seizure as unreasonable. He claims that Chavira “seriously entertained the possibility that these

       bags contained [defendant’s] breakfast, accidentally forgotten in the bed-sheets as [he] packed

       for his day. [Chavira] entertained that possibility so seriously that he made the conscious choice

       to refuse to describe the alleged oatmeal as suspected contraband.” Based on this hypothetical



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       and Chavira’s subjective belief, defendant leaps to the illogical and incorrect conclusion that the

       cocaine substance’s criminal character was not immediately apparent.

¶ 19          Some items that law enforcement officers might associate with “criminal character” do

       not always demonstrate a reasonable probability that the defendant committed or is committing a

       crime. For example, it would be unreasonable in some cases to immediately assign criminal

       character to a firearm, knife, or baseball bat; people commonly use these items as legitimate

       tools rather than instruments of crime. In this case, however, an objectively reasonable law

       enforcement officer could immediately infer a reasonable probability that defendant’s knotted

       bags contained illicit drugs, not oatmeal. Although it is legal for people to apportion oatmeal in

       individual plastic bags and store them in bed sheets, this hypothetical possibility does not render

       the seizure unreasonable.

¶ 20          Detective Chavira testified that the substance’s packaging was consistent with that

       typically used to store illicit drugs. A substance or item’s packaging and/or location can legally

       justify a seizure. See, e.g., Brown, 460 U.S. 730 (officer properly seized cocaine after he saw

       knotted party balloons and white powder in the defendant’s car); Jones, 215 Ill. 2d 261 (officer

       properly seized a small wooden box in the defendant’s shirt pocket because he had probable

       cause to associate it with criminal activity). Chavira had probable cause to seize the substance

       the moment he discovered it hidden beneath defendant’s bed sheets in packaging commonly used

       to store illicit drugs. It is irrelevant whether Chavira subjectively believed that the substance

       looked like oatmeal, heroin, or a “bad batch” of cocaine; an objectively reasonable law

       enforcement officer could properly infer that the suspiciously packaged powder in defendant’s

       bed sheets was probably evidence of a crime.




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¶ 21          Because defendant’s seizure theory cannot justify suppressing the evidence, he cannot

       establish that counsel’s allegedly frivolous search theory undermined confidence in the trial’s

       outcome—the evidence was admissible either way. We affirm his conviction.

¶ 22                                            CONCLUSION

¶ 23          For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside

       County.

¶ 24          Affirmed.

¶ 25          JUSTICE HOLDRIDGE, specially concurring:

¶ 26          I agree with Justice Schmidt’s analysis, including his conclusion that People v.

       Humphrey, 361 Ill. App. 3d 947 (2005), was wrongly decided. In light of Justice O’Brien’s

       endorsement of the majority opinion in Humphrey, I write separately to explain my disagreement

       with Humphrey.

¶ 27          As Justice O’Malley noted in his dissent in Humphrey, the Humphrey majority

       misconstrued the probable cause standard and mistakenly applied a subjective test instead of an

       objective test for determining whether the incriminating character of a substance a substance was

       “immediately apparent.” “[T]he existence of probable cause is a question not of what the officer,

       possessed of his own peculiar skills and experience, might have believed, but of ‘whether [the]

       historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to

       *** probable cause.’ ” Humphrey, 361 Ill. App. 3d at 963 (O’Malley, J., dissenting) (quoting

       Ornelas v. United States, 517 U.S. 690, 696 (1996)).

¶ 28          Evaluated from the perspective of an objectively reasonable police officer, the facts

       presented in Humphrey provided probable cause sufficient to justify a seizure of the pills at issue

       in that case. After he pulled over the defendant’s vehicle, the arresting police officer in



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       Humphrey observed a person in the vehicle’s passenger seat “ ‘hunch over’ ” and perform “ ‘a

       lot’ ” of “ ‘unusual’ ” hand movements. Id. at 960. When the officer approached the car, he

       observed “hundreds” of pills stored in a plastic Tupperware container on the floor of the

       passenger side of the vehicle. The pills had been removed from their original packaging, and the

       Tupperware container containing the pills was located “in the very area toward which the

       passenger apparently was reaching when he was suspiciously hunched.” Id. In my view, these

       facts, taken together, would warrant a reasonable police officer to suspect that the pills were

       illegal contraband, regardless of what the arresting officer actually believed.

¶ 29          Although the majority in Humphrey correctly stated that the existence of probable cause

       does not depend upon whether the arresting officer “knew” that the substance at issue was

       contraband (Humphrey, 361 Ill. App. 3d at 951, 952 (majority opinion)), the Humphrey

       majority’s finding of no probable cause and its reasoning belie that statement. The Humphrey

       majority appears to have based its finding of no probable cause entirely on the arresting officer’s

       inability to identify the pills at issue as contraband. It did not consider whether the facts and

       circumstances presented in the case would have warranted a reasonable police officer to

       conclude that the pills were likely to be contraband.

¶ 30          In her special concurrence, Justice O’Brien suggests that the Tupperware container at

       issue in Humphrey was “innocent in appearance and not immediately recognizable as

       contraband,” and that the police officer in Humphrey suspected that the pills could be contraband

       “only because of the number of them in the container.” I disagree. As noted above, the pills had

       been removed from their original packaging and were stored in a Tupperware container that was

       located exactly where the passenger had been suspiciously reaching at the time of the traffic stop.




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       These facts, coupled with the exceptionally large quantity of the pills, rendered the manner in

       which the pills were stored suggestive of illegal activity.

¶ 31          Accordingly, I do not join Justice O’Brien’s effort to rehabilitate Humphrey. In my view,

       Humphrey misapplied the probable cause standard governing plain view seizures and reached the

       wrong result.

¶ 32          JUSTICE O’BRIEN, specially concurring:

¶ 33          I specially concur because while I agree with the majority’s disposition, I disagree with

       its rejection of People v. Humphrey, 361 Ill. App. 3d 947 (2005). I believe the case was rightly

       decided but find it distinguished from the instant case. In Humphrey, the seized contraband was

       discovered in a “small, clear plastic container holding several hundred small white tablets” in

       plain view. Id. at 948-49. The officer could not identify the pills as contraband but was alerted by

       the number of pills the container held. Id. at 949. The container was innocent in appearance and

       not immediately recognizable as contraband. In contrast, the substance discovered under Lee’s

       bedsheets was packaged like contraband, with smaller knotted baggies inside a larger baggie.

¶ 34          The detective who discovered the cocaine testified that in his experience, the packaging

       of the unknown substance was consistent with the packaging used for illegal drugs. He provided

       his professional background and extensive experience in drug case investigation. He thought the

       substance could be either heroin or a “bad batch” of cocaine. Unlike the officer in Humphrey,

       who suspected the pills could be contraband only because of the number of them in the

       container, the detective here recognized the substance was potentially contraband based on how

       it was packaged, even if he was unsure what type of contraband was in the baggies.




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¶ 35          I agree with the disposition in Humphrey and believe the majority’s decision to ignore it

       is incorrect. However, the facts in this case differ from Humphrey in that the substance

       discovered here was immediately apparent to the detective as contraband by its packaging.

¶ 36          For those reasons, I specially concur.




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