                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Brannon, 2013 IL App (2d) 111084




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JARRIET E. BRANNON, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-1084


Filed                      May 6, 2013
Modified upon
denial of rehearing        June 7, 2013


Held                       The appellate court rejected defendant’s contention that his counsel was
(Note: This syllabus       ineffective in failing to move to suppress statements defendant made after
constitutes no part of     he was given warnings on the ground that the officers used the “question
the opinion of the court   first, warn later” tactic, since there was no direct evidence the officers
but has been prepared      violated the rule in Seibert by deliberately using that tactic to avoid the
by the Reporter of         limits set forth in Miranda.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 09-CF-577; the Hon.
Review                     Allen M. Anderson, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and Christopher McCoy, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Matthew J. Schmidt, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Presiding Justice Burke and Justice McLaren concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant, Jarriet E. Brannon, appeals from his convictions of unlawful possession of
        a controlled substance (720 ILCS 570/402(c) (West 2008)), and unlawful possession of
        cannabis (720 ILCS 550/4(d) (West 2008)). He contends that the trial court erred in denying
        his motion to suppress physical evidence. He further maintains that his trial counsel was
        ineffective for failing to move to suppress statements he made to the police both before and
        after he was given Miranda warnings. Because the trial court properly denied defendant’s
        motion to suppress and because defendant’s trial counsel was not ineffective for failing to
        seek suppression of his statements, we affirm.

¶2                                       I. BACKGROUND
¶3          The following facts are taken from the testimony at the hearing on defendant’s motion
        to suppress physical evidence and at his bench trial. On February 23, 2009, at about 7:24
        p.m., Officers Nick Gartner and Clark Johnson of the Aurora police department were
        patrolling in an unmarked squad car in a high-crime area known for its drug and gang
        activity. As they approached a retail food store located on North Avenue, Officer Gartner
        observed a vehicle, with its lights off, back out from the parking lot of the food store onto
        North Avenue. The vehicle then immediately pulled back into the lot of the food store and
        stopped. The officers observed two occupants in the vehicle, neither of whom was wearing
        a seat belt.
¶4          The officers followed the vehicle into the parking lot and pulled their squad car next to
        and somewhat behind the vehicle. Officer Gartner testified at the suppression hearing that
        he “believed” that they activated the emergency lights on the squad car. At the bench trial,
        he could not “recall 100 percent,” but he “believe[d] possibly” that the emergency lights were
        activated. Defendant, who testified at the suppression hearing that the officers were wearing


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       blue jeans and black “shirts or something,” was never asked if the emergency lights were
       activated. According to the officers, they both were wearing blue jeans and black tactical
       vests with Aurora police insignia on the front and back.
¶5         As the officers stopped adjacent to the vehicle, defendant exited the vehicle from the
       front passenger seat and began walking away from the vehicle. Officer Johnson, who had
       exited the squad car, ordered defendant to stop and reenter the vehicle, but defendant
       continued walking away. Officer Gartner, who thought defendant was going to flee, quickly
       walked around the front of the vehicle and cut him off.
¶6         Officer Gartner believed that defendant posed a risk to the officers’ safety, based on
       defendant’s actions and the fact that the area was a “known gang and drug area.” Thus, he
       frisked defendant, patting down his jacket. Officer Gartner, who was carrying a flashlight
       because of the limited lighting in the area, used the flashlight to look defendant over while
       patting him down.
¶7         During the frisk, Officer Gartner felt a soft bulge in defendant’s upper front jacket
       pocket. After feeling the bulge, Officer Gartner observed with the aid of the flashlight a clear
       plastic bag containing a “green, leafy substance” in the partially open jacket pocket. He did
       not place his hand in the pocket or pull the bag out prior to observing the bag and its
       contents. Although defendant testified at the suppression hearing that the pocket was closed,
       the trial court found Officer Gartner’s testimony more credible and specifically found that
       the bag and its contents were visible to Officer Gartner. Based on his prior training and
       police experience, Officer Gartner concluded that the substance in the plastic bag was
       cannabis.
¶8         At that point, Officer Gartner arrested and handcuffed defendant and handed him over
       to Officer Johnson, who discovered in defendant’s pocket a folded white packet that
       contained an “off-white substance, powdery substance.” Officer Gartner proceeded to look
       into the vehicle, where he observed on the front passenger seat a plastic bag that contained
       several foil packets. The foil packets contained a “powdery substance.” Officer Gartner
       seized the foil packets, and their contents later tested positive for the presence of heroin.
¶9         After Officer Gartner discovered the foil packets and showed them to Officer Johnson.
       Officer Johnson asked defendant, “Are you going to continue to lie to us about what you are
       doing?” Defendant responded, “No ... it’s my stuff.” Neither officer had advised defendant
       of his Miranda rights prior to his making this statement.
¶ 10       After completing the on-scene investigation, and releasing the driver, the officers had
       defendant transported to the Aurora police station. Once they arrived there, they met with
       defendant in an interview room. They then advised defendant of his Miranda rights and
       obtained his written waiver.
¶ 11       Following the Miranda procedure, at about 8:45 p.m., the officers interrogated defendant
       for about 20 minutes regarding his involvement with the heroin. Defendant revealed that he
       and the driver went to the food store and purchased the heroin. Defendant further stated that
       he intended to keep some of the heroin for his own use and sell the rest to support his habit.
¶ 12       Defendant was subsequently indicted on one count of unlawful possession of a controlled
       substance with intent to deliver within 1,000 feet of a church (count I) (720 ILCS

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       570/407(b)(1) (West 2008)), one count of unlawful possession of a controlled substance
       (count II) (720 ILCS 570/402(c) (West 2008)), one count of unlawful possession with intent
       to deliver cannabis (count III) (720 ILCS 550/5(d) (West 2008)), and one count of unlawful
       possession of cannabis (count IV) (720 ILCS 550/4(d) (West 2008)).
¶ 13        Prior to trial, defendant moved to suppress all the physical evidence seized subsequent
       to the frisk. Following an evidentiary hearing on the motion to suppress, the trial court denied
       the motion.
¶ 14        Following a bench trial, defendant was found guilty of count II and count IV and not
       guilty of count I and count III and sentenced to 42 months in prison. His posttrial motion was
       denied, and defendant filed this timely appeal.

¶ 15                                         II. ANALYSIS
¶ 16       Defendant raises the following issues on appeal: (1) whether the trial court erred in
       denying his motion to suppress all physical evidence discovered subsequent to his being
       frisked; and (2) whether his trial counsel was ineffective for failing to move to suppress his
       statements made in response to police questioning both before and after he was advised of
       his Miranda rights. We consider each issue in turn.
¶ 17       The trial court’s ruling on the motion to suppress presents mixed questions of law and
       fact. People v. Linley, 388 Ill. App. 3d 747, 748 (2009). The trial court’s findings of fact will
       be upheld on review unless they are against the manifest weight of the evidence, but a
       reviewing court remains free to undertake its own assessment of the facts in relation to the
       issues presented and may draw its own conclusions when deciding what relief to grant.
       Linley, 388 Ill. App. 3d at 748-49. The ultimate issue of whether to suppress is subject to de
       novo review. Linley, 388 Ill. App. 3d at 749.
¶ 18       On a motion to suppress, the defendant bears the burden of establishing a prima facie
       case that he was doing nothing unusual to justify the intrusion of a warrantless seizure or
       search. Linley, 388 Ill. App. 3d at 749. If the defendant makes the required showing, the
       burden shifts to the State to present evidence to justify the seizure or search. Linley, 388 Ill.
       App. 3d at 749. In this case, there is no dispute that defendant made a prima facie case, thus
       obligating the State to justify frisking defendant.
¶ 19       We begin our analysis of the first issue by noting that we may affirm the trial court’s
       judgment on any basis supported by the record, regardless of the trial court’s reasoning.
       People v. Liekis, 2012 IL App (2d) 100774, ¶ 23.
¶ 20       It is well established that the police are allowed to conduct a custodial search incident to
       an arrest for a traffic violation or petty offense. People v. Fitzpatrick, 2013 IL 113449, ¶ 19.
       Further, it is a petty offense to willfully fail or refuse to comply with any lawful order or
       directive of any police officer invested by law with the authority to direct, control, or regulate
       traffic. 625 ILCS 5/11-203 (West 2010).
¶ 21       In this case, the evidence shows that defendant was a passenger in a vehicle that he
       concedes was lawfully stopped for a traffic violation. When the vehicle was stopped,
       defendant immediately exited and began walking away. Even after he was ordered to stop


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       and return to the vehicle, defendant appeared to ignore the directive and continue to walk
       away.
¶ 22        The evidence further shows that the officers had activated the emergency lights on their
       squad car when stopping the vehicle. While Officer Gartner could not recall with certainty,
       he testified twice that he believed the lights were activated. At trial, Officer Johnson testified
       that the emergency lights were not activated. While this testimony contradicted Officer
       Gartner’s testimony at both the suppression hearing and the trial, defendant cannot rely on
       such evidence on appeal, because he did not revive his suppression motion and request the
       trial court to reconsider its earlier ruling. See People v. Brooks, 187 Ill. 2d 91, 127-28 (1999).
       Although defendant testified to how the officers were dressed, he was never asked whether
       the lights were activated or not.
¶ 23        Based on this evidence, the officers had probable cause, prior to the search of defendant’s
       jacket pocket, to arrest defendant for willfully failing or refusing to comply with a lawful
       order or directive, in violation of section 11-203. Because they had the authority to arrest him
       for a petty offense, they could conduct a search of his person. Therefore, the search of the
       jacket pocket, whether a frisk or otherwise, was valid.
¶ 24        Once the officers discovered the cannabis in defendant’s jacket pocket, they had probable
       cause to arrest him for possession of cannabis. They were, in turn, authorized to search the
       vehicle for further evidence of the crime of drug possession. See People v. Arnold, 394 Ill.
       App. 3d 63, 79 (2009) (citing Arizona v. Gant, 556 U.S. 332 (2009)). They could do so
       irrespective of whether defendant was handcuffed at the time. Arnold, 394 Ill. App. 3d at 79.
       Therefore, the discovery of the heroin in the foil packets was lawful.
¶ 25        Additionally, the fact that the officers found the cannabis in defendant’s jacket pocket,
       combined with the other suspicious behavior that occurred in an area known for drug
       activity, gave them probable cause to believe that the vehicle contained evidence of drug
       possession. Thus, they were justified in conducting a warrantless search of the vehicle,
       including the foil packets. See People v. Slavin, 2011 IL App (2d) 100764, ¶ 13. The
       discovery of the heroin was proper on this basis also.
¶ 26        Alternatively, we affirm the search of defendant’s jacket pocket and the vehicle on a
       different basis. A passenger of a legally stopped vehicle is validly detained. People v.
       Johnson, 408 Ill. App. 3d 107, 120 (2010) (citing Arizona v. Johnson, 555 U.S. 323, 331
       (2009)). A passenger who attempts to leave a lawfully stopped vehicle gives the police
       officer probable cause to arrest him for obstructing an authorized action by a peace officer
       (720 ILCS 5/31-1(a) (West 2010)). Johnson, 408 Ill. App. 3d at 122 (citing People v.
       Holdman, 73 Ill. 2d 213, 222 (1978)). This is so because the officer was justified in detaining
       the passenger at the time of flight. Johnson, 408 Ill. App. 3d at 122. Thus, where an officer
       has the right to detain a passenger of a vehicle stopped for a traffic violation and the
       passenger flees from the vehicle, the officer has probable cause to arrest the passenger for
       a violation of section 31-1(a).
¶ 27        In all of the cases justifying searches based on arrests under section 31-1(a), there were
       facts establishing that the officers reasonably believed that the passengers were aware of the
       officers’ presence and police authority. See, e.g., Holdman, 73 Ill. 2d at 222-23 (officers were


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       in uniform, drove marked squad car, and activated both emergency lights and siren);
       Johnson, 408 Ill. App. 3d at 124-25 (although officers were patrolling in plain clothes and
       unmarked car, they activated emergency lights); People v. Jones, 245 Ill. App. 3d 302, 304
       (1993) (officer “identified his office”). Therefore, it must be “clear” to the officer that the
       defendant knew he was being stopped by the police. Johnson, 408 Ill. App. 3d at 125.
¶ 28       The facts here, as previously set forth, would lead a reasonable person to believe that
       defendant was aware of the officers’ presence and authority. Thus, the officers could have
       reasonably concluded that he exited the vehicle in knowing disregard of the traffic stop. This
       alone was a sufficient basis for probable cause to arrest him for a violation of section 31-1(a).
       Additionally, the facts support a reasonable belief that defendant consciously ignored a police
       command to stop and return to the vehicle. See Jones, 245 Ill. App. 3d at 304. Accordingly,
       the officers had two lawful bases to arrest defendant for violating section 31-1(a) prior to the
       search of his jacket pocket.
¶ 29       Because the officers had probable cause to arrest defendant for a violation of section 31-
       1(a), the subsequent search of his jacket pocket was valid as being incident to that lawful
       arrest. Therefore, the search of defendant’s jacket pocket was lawful, as was the seizure of
       the cannabis found therein.
¶ 30       As discussed above, once defendant could be arrested based on the cannabis, the officers
       were authorized to search the vehicle for further evidence of the crime of drug possession,
       notwithstanding the fact that defendant was handcuffed at the time. Therefore, the discovery
       of the heroin in the foil packets was lawful.
¶ 31       Additionally, as discussed above, the officers had probable cause to believe that the
       vehicle contained evidence of drug possession. Once they had such probable cause, they were
       authorized to search the vehicle, including the foil packets, without a warrant.
¶ 32       For the foregoing reasons, we hold that the trial court correctly denied the motion to
       suppress the evidence found both in defendant’s jacket pocket and in the vehicle.
¶ 33       Defendant’s second contention is that his trial counsel was ineffective for failing to move
       to suppress statements he made in response to police questioning both before and after he
       was given Miranda warnings. As to the first statement, defendant argues that he was
       subjected to custodial interrogation without first being given Miranda warnings. Defendant
       maintains that the second statement should be suppressed because the officers engaged in the
       “question first, warn later” tactic prohibited in Missouri v. Seibert, 542 U.S. 600 (2004).
¶ 34       A court applies the two-prong test set forth in Strickland v. Washington, 466 U.S. 668
       (1984), to determine if a defendant was denied the effective assistance of counsel. People v.
       Givens, 237 Ill. 2d 311, 330-31 (2010). To prevail under that test, the defendant must show
       both that his counsel was deficient and that such deficiency prejudiced the defendant. Givens,
       237 Ill. 2d at 331. If it is easier to dispose of an ineffective-assistance claim on the ground
       that there was insufficient prejudice, then the court may proceed directly to the second prong
       and need not determine whether counsel’s performance was defective. Givens, 237 Ill. 2d at
       331.
¶ 35       The question of whether to file a motion to suppress evidence is traditionally considered
       a matter of trial strategy. People v. Bailey, 375 Ill. App. 3d 1055, 1059 (2007), aff’d, 232 Ill.

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       2d 285 (2009). Trial counsel’s strategic decisions are generally protected by a strong
       presumption that the attorney’s decisions reflect sound trial strategy rather than
       incompetence. Bailey, 375 Ill. App. 3d at 1059. To prevail on a claim that trial counsel was
       ineffective for failing to file a motion to suppress, a defendant must show a reasonable
       probability that the motion would have been granted and that the trial outcome would have
       been different. Bailey, 375 Ill. App. 3d at 1059. A defendant’s appeal rises and falls with the
       merits of the motion to suppress that he proposes trial counsel should have presented. Bailey,
       375 Ill. App. 3d at 1059.
¶ 36        Turning to the prewarning statement, the State has not argued that it was admissible. We
       agree that the prewarning statement was inadmissible because it was given in response to a
       question designed to elicit an incriminating response and there is no dispute that defendant
       was in custody at the time. See People v. Peo, 391 Ill. App. 3d 815, 818-19 (2009).
¶ 37        Reaching that conclusion, however, addresses only the first prong in the bifurcated
       analysis of ineffective assistance of counsel. The second prong, that there is a reasonable
       probability that a different result would have occurred, has not been realized. We do not
       believe that the suppression of defendant’s prewarning statement would have altered the
       outcome of defendant’s trial.
¶ 38        Defendant’s prewarning statement, “it’s my stuff,” was a somewhat vague and
       generalized response to the question of whether he was going to continue to lie to the
       officers. While the statement arguably referred to the heroin in the vehicle, it was not so
       specific as to be directly inculpatory in that regard. Further, when that statement is viewed
       in light of the independent evidence of defendant’s possession of heroin, it could not have
       been outcome-determinative. The other evidence consisted of the heroin that was found
       where defendant was seated in the vehicle just prior to his exit. Further, the fact that
       defendant exited the vehicle when it was stopped suggests he knew of, and was trying to
       distance himself from, the heroin therein. Also, defendant possessed over 30 grams of
       cannabis on his person. When we consider all of the other evidence, we cannot say that there
       is a reasonable probability that the suppression of the prewarning statement would have
       changed the result of the trial. This is so notwithstanding the trial court’s terse reference to
       that statement in making its findings. Accordingly, there was no prejudice resulting from trial
       counsel’s failure to seek suppression of the prewarning statement.
¶ 39        On the other hand, the postwarning statements were more comprehensive and detailed
       in terms of defendant’s possession of the heroin. Because the other evidence of heroin
       possession was circumstantial, the postwarning statements might have had an impact on the
       outcome of the trial. That is, if trial counsel was deficient for failing to move to suppress
       those statements, the deficiency was likely prejudicial. Thus, we must decide whether trial
       counsel was deficient.
¶ 40        The Illinois Supreme Court, in adopting the Seibert analysis, has concluded that Justice
       Kennedy’s concurrence resolved the case on the narrowest ground and is therefore
       controlling authority. People v. Lopez, 229 Ill. 2d 322, 360 (2008). In applying that
       concurrence, a court must first determine whether the police deliberately used a “question
       first, warn later” technique when interrogating a defendant. Lopez, 229 Ill. 2d at 360. If there


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       is no evidence to support a finding of deliberateness on the part of the police, the Seibert
       analysis ends. Lopez, 229 Ill. 2d at 360. If there is such evidence, the court must consider
       whether curative measures were taken, like a substantial break in time and circumstances
       between the prewarning and postwarning statements, such that the defendant would be able
       to distinguish the two contexts and appreciate that the interrogation has taken a new turn.
       Lopez, 229 Ill. 2d at 360-61.
¶ 41        Regarding step one, our supreme court has adopted the analysis from United States v.
       Williams, 435 F.3d 1148 (9th Cir. 2006), for determining whether, in the absence of direct
       evidence, deliberate misconduct occurred during the interrogation procedure. Lopez, 229 Ill.
       2d at 361. In applying that approach, a court should consider any subjective evidence, such
       as an officer’s testimony, along with the objective evidence to determine whether a question
       first, warn later interrogation procedure was used to undermine the Miranda rule. Lopez, 229
       Ill. 2d at 361. In terms of assessing the objective evidence, a court should consider such
       factors as the timing, setting, and completeness of the prewarning interrogation, the
       continuity of police personnel, and the overlapping content of the prewarning and
       postwarning statements. Lopez, 229 Ill. 2d at 361-62.
¶ 42        Applying this analysis to our case, we conclude that there was no direct evidence that the
       officers engaged in a question first, warn later approach to deliberately circumvent the
       strictures of Miranda. Nor is there is any evidence that the officers had a subjective mindset
       in that regard.
¶ 43        As to the objective evidence, the timing of the initial questioning was over an hour before
       the subsequent interrogation and occurred as part of an on-street encounter in which the
       officers were attempting to quickly sort out whom to detain for possession of the heroin
       found in the vehicle, as well as determine the extent of the criminal conduct of both
       defendant and the driver. This is borne out by the fact that defendant was ultimately arrested
       while the driver was allowed to leave. This timing evidence supports the conclusion that the
       questioning was spontaneous and not part of a deliberate plan to avoid Miranda.
¶ 44        The setting in which the prewarning question occurred also supports such a conclusion.
       The question was asked under circumstances in which the officers were conducting an on-
       street investigation in a high-crime area and were faced with a suspect who was obviously
       not cooperating. This was not a situation where the police had detained a suspect, removed
       him to an optimal interrogation setting, and then conducted an orchestrated interrogation.
       This is exactly the type of situation recognized by Justice Kennedy as an exception to the rule
       in Seibert, where an officer “ ‘may not plan to question the suspect or may be waiting for a
       more appropriate time.’ ” Lopez, 229 Ill. 2d at 364 (quoting Seibert, 542 U.S. at 620
       (Kennedy, J., concurring in the judgment)). Nor is there any indication here that the officers
       were operating from a policy of question first, warn later. Thus, the setting here strongly
       suggests that the prewarning questioning was merely spontaneous as opposed to part of a
       deliberate plan.
¶ 45        Additionally, the prewarning interrogation was far from complete. Rather, it consisted
       of essentially one question designed to get defendant to tell the truth. As compared to the far
       more extensive and focused interrogation that occurred later, the on-scene questioning was


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       limited and spontaneous. We consider this particular factor as especially supportive of the
       conclusion that the officers were not deliberately trying to dodge Miranda.
¶ 46       As to the overlapping content of the prewarning and postwarning statements, the
       prewarning statement, as noted, was vague; only the postwarning statements specifically
       pertained to the possession of the heroin. Further, the bulk of the postwarning statements
       pertained to defendant’s involvement in drug dealing as opposed to mere possession. This
       factor favors finding that the officers were not deliberately avoiding Miranda.
¶ 47       The continuity of police personnel supports a finding of deliberateness to the extent that
       both officers conducted both the prewarning and postwarning questioning. This factor alone,
       however, is insufficient to show that the officers violated the rule in Seibert and is
       outweighed by the totality of the other factors.
¶ 48       Based on the foregoing consideration of the factors enunciated in Lopez in light of the
       facts of this case, we conclude that there is insufficient evidence to show that the officers
       deliberately engaged in the question first, warn later technique disapproved by Seibert.
       Accordingly, there is no need to analyze whether there were any curative measures
       employed.
¶ 49       Because the evidence is insufficient to support a finding that the officers violated the rule
       set forth in Seibert, there was no reasonable basis to move to suppress the postwarning
       statements. Therefore, trial counsel was not ineffective for failing to do so.

¶ 50                                   III. CONCLUSION
¶ 51       For the reasons stated, we affirm defendant’s convictions.

¶ 52       Affirmed.




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