                                         2016 IL App (3d) 130594

                                Opinion filed March 7, 2016
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                 A.D., 2016

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                      )       Will County, Illinois.
            Plaintiff-Appellee,                       )
                                                      )       Appeal No. 3-13-0594
            v.                                        )       Circuit No. 12-CF-389
                                                      )
     EUGENE TAYBORN,                                  )       The Honorable
                                                      )       Edward Burmila, Jr.,
            Defendant-Appellant.                      )       Judge, presiding.
     _____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justice Wright concurred in the judgment and opinion.
           Justice Schmidt dissented, with opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Following a jury trial, defendant, Eugene Tayborn, was found guilty of possession of

     cocaine. On appeal, defendant argues that he received ineffective assistance of counsel because

     his counsel failed to file a motion to suppress defendant's statement that he was transporting

     cocaine, which defendant made in response to police questioning without having received

     Miranda warnings. Miranda v. Arizona, 384 U.S 436 (1966). We agree that defendant's counsel

     provided ineffective assistance by failing to file a motion to suppress defendant's statement and

     reverse and remand for further proceedings.
¶2                                                FACTS

¶3          The State charged defendant by way of a two-count indictment. In count I, defendant

     was charged with possession with intent to deliver 15-100 grams of cocaine (720 ILCS

     570/401(a)(2)(A) (West 2012)). In count II, defendant was charged with possession of cocaine

     (720 ILCS 570/402(c) (West 2012)). The case proceeded to a jury trial.

¶4          At trial, the evidence for the State established that at 8:40 p.m., on February 16, 2012,

     Deputy Michael Weder and Officer Dustin Legner performed a traffic stop of a vehicle because

     it did not have a registration plate light. Weder approached the female driver and Legner

     approached the male passenger. According to Weder, the female driver seemed nervous. Weder

     asked the driver for her license and the vehicle's registration. The driver slowly produced the

     paperwork. The driver kept trying to cover a purse located on the center console with her right

     hand and refused to move her hands when Weder asked her to place her hands where he could

     see them. Weder described the driver acting funny about the purse and making furtive

     movements toward the purse. She also placed papers over the purse. Weder asked the driver to

     step out of the vehicle. Weder spoke to the driver and then handcuffed her and placed her into

     his squad car.

¶5          Legner conducted an inventory search of the vehicle incident to the driver's arrest.

     During the inventory search, the defendant, who had been the passenger, was removed from the

     vehicle and placed in handcuffs for safety reasons. Legner testified that defendant was being

     detained but was not under arrest during the search. In searching the vehicle, Legner observed a

     white sock, in plain view, in the purse. Legner opened the sock and discovered a clear baggie

     with a white rock powder substance that Legner suspected was cocaine. Legner placed the

     baggie on the hood of the squad car, and Weder took possession of it. As Legner continued the


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     vehicle search, three additional officers arrived in two or three additional squad cars. Legner

     heard defendant tell Deputy Matthew McKee that he was transporting the cocaine from Chicago

     to someone in Iowa.

¶6          McKee testified that he was called to the scene of the traffic stop. When McKee arrived

     on scene he parked behind Weder's vehicle and saw Legner speaking with defendant. As McKee

     walked toward Legner, he heard Legner ask defendant to get out of the vehicle so that Legner

     could conduct an inventory search of the vehicle. McKee walked defendant toward the shoulder

     of the highway. McKee and defendant began casually conversing. McKee testified that

     defendant was not in handcuffs. McKee heard Legner indicate to Weder that he discovered what

     he suspected was cocaine in the vehicle. McKee asked defendant about the cocaine.

     Specifically, McKee testified as follows:

                           "[Officer McKee]:      I overheard Officer Legner tell Deputy Weder he

            found suspect cocaine in the vehicle.

            BY [PROSECUTOR]:

                    Q.     Did you then ask the defendant about that?

                    A.     Yes, I did.

                    Q.     What was his response?

                    A.     He admitted that he had gotten it from an acquaintance in Chicago

            and he was bringing it to Iowa.

                    Q.     Did he say who he was bringing it to Iowa to [sic]?

                    A.     No, he did not.

                    Q.     At that point what did you do?

                    A.     I took [defendant] into custody, placed him in my vehicle."

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     Thus, in response to McKee's question, defendant had indicated that he received the cocaine

     from an acquaintance in Chicago and was bringing it to somebody in Iowa. At that point, Mckee

     took defendant into custody and placed defendant into his vehicle. 1 The cocaine-like substance

     was subsequently tested and determined to be 58.89 grams of cocaine. At the close of the State's

     case, the trial court denied defendant's motion for a directed verdict.

¶7          The jury found the defendant guilty on count II—possession of cocaine—and could not

     reach a verdict on count I for possession with intent to deliver 15-100 grams of cocaine. A

     mistrial was declared on count I, which proceeded to a bench trial, with the parties stipulating to

     the evidence that had been presented at the jury trial. The trial court found that defendant was in

     constructive possession of the cocaine because he was aware of the cocaine in the vehicle and

     admitted that he was going to deliver the cocaine. However, the trial court found that although

     defendant knew there was cocaine in the vehicle, there was insufficient evidence to indicate that

     defendant was aware of the amount of cocaine. The trial court noted that "the police officer,

     after the defendant was arrested" placed the cocaine on the hood of the car, exposing the amount

     of cocaine to defendant but defendant's knowledge of the amount of the cocaine at that point

     could not be considered because defendant had already been arrested. Because the State failed to

     prove that defendant knew of the amount of cocaine beyond a reasonable doubt, the trial court

     acquitted defendant on count I—possession with intent to deliver 15-100 grams of cocaine.

¶8          On July 29, 2013, the trial court sentenced defendant to 30 months in prison on Count II.

     On August 14, 2013, defense counsel orally motioned the trial court to reconsider defendant’s



            1
                On cross-examination, McKee indicated that Weder made the arrest of defendant, and

     McKee transported defendant to jail.


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       sentence, which the trial court denied. Also, on August 14, 2013, defendant was released from

       prison, having served his 30-month prison sentence. Defendant appeals his conviction.

¶9                                                 ANALYSIS

¶ 10          On appeal, defendant argues that he received ineffective assistance of counsel because his

       counsel failed to file a motion to suppress his incriminating admission that he made in response

       to police questioning without defendant having first received Miranda warnings. See People v.

       Hunt, 2012 IL 111089, ¶ 25; Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding that the

       prosecution may not use statements from a custodial interrogation unless procedural safeguards

       that secure the defendant's privilege against self-incrimination are demonstrated, which require

       that a defendant be warned of his right to remain silent, any statement made may be used as

       evidence against him, and of his right to an attorney). The State argues that the record is

       insufficient to determine whether defendant had received ineffective assistance of counsel

       because defendant failed to raise the issue in the trial court. Alternatively, the State argues that

       defendant did not receive ineffective assistance of counsel because he was not prejudiced by his

       counsel's failure to file a motion to suppress where the motion would not have been successful.

       The State claims that the motion would not have been granted because defendant was not subject

       to a custodial interrogation at the time he made the admission that he was transporting cocaine.

¶ 11                      I. Direct Appeal of Ineffective Assistance of Counsel Claim

¶ 12          Initially, we address the State's claim that a direct appeal is not the proper forum for

       defendant's ineffective assistance of counsel claim because the trial record is inadequate for the

       purpose of analyzing counsel's performance. See People v. Durgan, 346 Ill. App. 3d 1121

       (2004) (only the trial record is available on direct appeal and the trial record is often inadequate

       or incomplete for the purpose of analyzing counsel's performance). The State argues that the


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       issue of whether counsel was ineffective for failing to file a motion to suppress was not raised in

       the trial court so that "the record does not contain a thorough discussion on its merits."

       According to the State, a collateral review of defendant's claim of ineffective assistance of

       counsel is the more appropriate forum to address defendant's claim.

¶ 13           We disagree that this direct appeal is not an appropriate forum for defendant's claim of

       ineffective assistance of counsel in this case. First, we note that collateral relief of a

       postconviction petition is not available to the defendant in this case because defendant has

       completed his sentence and term of mandatory supervised release. See 725 ILCS 5/122-1 et seq.

       (West 2014) (Post-Conviction Hearing Act is available to "[a]ny person imprisoned in the

       penitentiary"); People v. Carrera, 239 Ill. 2d 241, 257 (2010) (a postconviction remedy is

       available to those being deprived of their liberty, and not to those who have served their

       sentences and might wish to purge their records of past convictions); People v. Martin-Trigona,

       111 Ill. 2d 295, 299 (1986) (a defendant who completed his sentence may not use the Post-

       Conviction Hearing Act simply to purge his criminal record). Second, a meritorious ineffective

       assistance of counsel claim is a substantial impairment of a fundamental right that can be

       addressed by a reviewing court, even if the defendant failed to raise the issue in the trial court.

       See People v. McCarter, 2011 IL App (1st) 092864, ¶ 37 (claims of ineffective assistance of

       counsel and plain error review are overlapping because the second prong of the plain error rule

       that the error affects the fairness of trial is triggered if defendant proves he received ineffective

       assistance of counsel). Consequently, in this case, this direct appeal is an appropriate forum to

       address the issue of whether he received ineffective assistance of counsel in the trial court.

¶ 14                                   II. Ineffective Assistance of Counsel




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¶ 15          We now turn to the merits of the issue on appeal—whether defendant received ineffective

       assistance of counsel where his counsel failed to file a motion to suppress an incriminating

       statement that he made to police. Defendant claims that a motion to suppress his statement

       would have been successful because he made the statement in response to a custodial

       interrogation without receiving Miranda warnings and the State had relied almost entirely on the

       statement to support his conviction. The State argues that defendant's statement was not made in

       response to an interrogation that warranted Miranda warnings.

¶ 16          Every defendant has a constitutional right to the effective assistance of counsel. U.S.

       Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish ineffective assistance of

       counsel, defendant must show both: (1) his counsel's representation fell below an objective

       standard of reasonableness; and (2) that the substandard representation prejudiced the defendant.

       Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504, 526-27

       (1984) (adopting Strickland ). Whether a defendant received ineffective assistance of counsel is

       evaluated with the reviewing court giving deference to the trial court’s findings of fact and

       making a de novo assessment of the legal issue of ineffective assistance counsel. People v.

       Bailey, 375 Ill. App. 3d 1055, 1059 (2007).

¶ 17          An attorney's decision whether to file a motion to suppress is generally a matter of trial

       strategy that is entitled to great deference. People v. White, 221 Ill. 2d 1, 21 (2006). To establish

       defendant's prejudice resulting from counsel's failure to file a motion to suppress evidence, a

       defendant must show that: (1) the unargued suppression motion is meritorious (i.e., would have

       succeeded); and (2) there is a reasonable probability that the outcome of the trial would have

       been different had the evidence been suppressed. People v. Henderson, 2013 IL 114040, ¶¶ 12,

       15.


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¶ 18          Statements obtained from a person as a result of custodial interrogation are subject to

       suppression if the person did not receive Miranda warnings. Miranda, 384 U.S. 436; People v.

       Rivera, 304 Ill. App. 3d 124, 128 (1999). An interrogation is any practice that police should

       know is reasonably likely to evoke an incriminating response from a suspect. Rivera, 304 Ill.

       App. 3d at 128. A custodial interrogation takes place when police initiate questioning of a

       person who has been taken into custody or deprived of his freedom of movement in any

       significant way. Miranda, 384 U.S. at 444; People v. Jordan, 2011 IL App (4th) 100629, ¶ 17.

¶ 19          In determining whether a person was "in custody" for Miranda purposes, a court

       examines the circumstances surrounding the interrogation to determine whether, given those

       circumstances, a reasonable person, innocent of any crime, would have felt that he was not at

       liberty to terminate the interrogation and leave. People v. Braggs, 209 Ill. 2d 492, 505-06 (2003)

       (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). Factors relevant to determine whether

       police questioning was a custodial interrogation include: (1) the time and place; (2) number of

       police officers present; (3) presence or absence of family or friends; (4) indicia of a formal arrest;

       and (5) manner by which the individual arrived at the place of interrogation. Jordan, 2011 IL

       App (4th) 100629, ¶ 18.

¶ 20          Generally, a person who is temporarily detained pursuant to an ordinary traffic stop is not

       in police custody for Miranda purposes due to the "noncoercive aspect of ordinary traffic stops."

       Berkemer v. McCarty, 468 U.S. 420, 440 (1984); People v. Briseno, 343 Ill. App. 3d 953, 959

       (2003) (“[a] traffic stop, although restraining the driver's freedom of action, does not sufficiently

       impair the driver's exercise of the privilege against self-incrimination so as to require that the

       driver be warned of his Miranda rights”). However, the safeguards prescribed by Miranda will

       become applicable during a traffic stop as soon as a suspect's freedom of action is curtailed to the


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       same degree as a formal arrest. Berkemer, 468 U.S. at 440; People v. Wright, 2011 IL App (4th)

       100047, ¶ 33. The temporary detention of an ordinary traffic stop can evolve into a custodial

       situation, requiring Miranda warnings prior to the interrogation of a suspect. See, e.g., Jordan,

       2011 IL App (4th) 100629 (a traffic stop for driver's failure to wear a seat belt transformed into a

       drug search and custodial interrogation of the passenger where she was locked in a squad car,

       isolated from the driver, and told police intended to send for a drug-detection canine); Rivera,

       304 Ill. App. 3d at 129 (the purpose of an on-the-scene investigatory stop ended when a bag of

       suspected cocaine was removed from defendant's vehicle and the officers' reasonable suspicion

       of criminal activity developed into probable cause of defendant's involvement in cocaine

       delivery).

¶ 21          In this case, the failure of defendant's trial counsel to file a motion to suppress defendant's

       statement to police constituted deficient performance that prejudiced the defendant because the

       motion would have been granted and there is a reasonable probability that outcome of the trial

       would have been different had defendant's statement been suppressed. We can see no reasonable

       trial strategy for trial counsel's failure to file a motion to suppress defendant's statement to police

       that he was transporting cocaine where the statement was the State's strongest evidence against

       defendant. See People v. Little, 322 Ill. App. 3d 607, 613 (2001) (concluding counsel was

       ineffective for failing to file a motion to quash and suppress where a motion to quash and

       suppress would have been defense counsel's strongest, and most likely wisest, course of action).

¶ 22          Here, during the search of the vehicle, the driver of the vehicle had already been arrested

       and placed in a squad car. Two or three squad cars were present and four to six officers were on

       the scene. Cocaine was found in the vehicle during the vehicle search and placed on the hood of

       the squad car. There was inconsistent testimony from the police officers as to whether defendant


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       was handcuffed while the vehicle was being searched and when he was questioned about the

       cocaine that had been discovered in the vehicle. Nonetheless, the fact-finder in this case—the

       trial judge—found that defendant was in custody at the time the cocaine was discovered. Even if

       defendant was not in custody prior to the discovery of the cocaine, the discovery of the cocaine

       in the vehicle would have transformed the detention of defendant into a custodial situation. See

       Rivera, 304 Ill. App. 3d at 129.

¶ 23          Therefore, when McKee asked defendant about the cocaine, the questioning was a

       custodial interrogation without defendant having first been given Miranda warnings so that his

       admission that he was transporting the cocaine to Iowa would have been inadmissible at trial.

       See Jordan, 2011 IL App (4th) 100629, ¶ 16 (a defendant's statement made during a "custodial

       interrogation" is inadmissible unless preceded by a knowing and intelligent waiver of defendant's

       right not be compelled to testify against himself and his right to have an attorney present)

       (quoting Miranda, 384 U.S. at 444). Consequently, we conclude that the performance of

       defendant’s counsel fell below an objective standard of reasonableness where counsel failed to

       file a motion to suppress defendant’s inadmissible statement that he was transporting cocaine.

       Defendant was prejudiced by his counsel’s failure to file the motion to suppress because the

       motion would have been successful, as is demonstrated by the trial court's finding that defendant

       was in custody when the cocaine was discovered and at the time he was questioned. Without

       defendant’s statement that he was transporting the cocaine, there is a reasonable probability that

       the outcome of the trial would have been different had defendant's admission been suppressed

       where the admission by defendant was the State's strongest evidence of defendant's constructive

       possession of the cocaine.




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¶ 24          For the foregoing reasons, we find that defendant received ineffective assistance of

       counsel where his attorney failed to file a motion to suppress his admission that he was

       transporting cocaine, which defendant made in response to police questioning while he was in

       custody and without having received Miranda warnings. We reverse defendant’s conviction for

       unlawful possession of cocaine and remand for further proceedings.

¶ 25                                             CONCLUSION

¶ 26          The judgment of the circuit court of Will County is reversed and this cause is remanded

       for further proceedings.

¶ 27          Reversed and remanded.

¶ 28          JUSTICE SCHMIDT, dissenting.

¶ 29          I respectfully dissent. I would affirm the trial court’s ruling. Without a complete trial

       record, the proper venue to hear an ineffective assistance of counsel claim is a postconviction

       petition. People v. Durgan, 346 Ill. App. 3d 1121, 1142 (2004). Defendant’s ineligibility to file

       a postconviction petition should not entitle him to a reversal of his conviction on the record.

¶ 30          A Miranda violation requires a finding of two elements: a defendant: (1) in custody; and

       (2) being interrogated. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Determining whether an

       interrogation is custodial involves analyzing a variety of factors. See People v. Slater, 228 Ill. 2d

       137, 150 (2008); supra ¶ 19. We cannot find that a Miranda violation occurred without knowing

       what was actually said to the defendant. Accordingly, we cannot further rule that defense

       counsel’s performance was deficient in forgoing a motion to suppress defendant’s statement to

       Deputy McKee. Failure to file a motion to suppress is not, per se, ineffective assistance of

       counsel. See People v. Bryant, 128 Ill. 2d 448, 458-59 (1989).




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¶ 31          On direct appeal, only the trial record is available for review and that record is often

       incomplete or inadequate for the purpose of analyzing trial counsel’s performance. People v.

       Durgan, 346 Ill. App. 3d at 1142 (quoting Massaro v. United States, 538 U.S. 500, 504-05

       (2003)). In effect, trial records frequently will not disclose the facts required to decide either

       prong of a Strickland analysis and these issues are appropriately addressed in postconviction

       petitions. Id. Such is the case here.

¶ 32          The Miranda violation now alleged by defendant was not argued at trial. The majority,

       however, without knowledge of what he said to defendant, declares Deputy McKee’s

       conversation with defendant an interrogation. Supra ¶ 23. The majority merely assumes that

       defendant was interrogated because he offered an incriminating response to whatever was asked

       of him. There was no testimony one way or the other about Miranda. We cannot be sure that

       the warnings were not given.

¶ 33          Interrogation by law enforcement is not a necessary prerequisite to an incriminating

       response by a defendant. Police officers are not held liable for the unforeseeable results of their

       actions during a custodial interaction with a defendant. People v. Parker, 344 Ill. App. 3d 728,

       732 (2003) (quoting Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980)). “ ‘[T]he definition of

       interrogation can extend only to words or acts on the part of police officers that they should have

       known were reasonably likely to elicit an incriminating response.’ ” (Emphasis in original.) Id.

       (quoting Innis, 445 U.S. at 302). In order to rule that a question or statement is interrogating in

       nature, courts must therefore also know—at a minimum—the substance of the content that

       elicited an incriminating response. McKee’s alleged interrogation could have been intended to

       incriminate the more obvious owner of the contraband, the owner of the purse. The point is, we

       do not know.



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¶ 34          The majority relies upon Jordan for its holding. Supra ¶ 23. That reliance is misplaced.

       In Jordan, the court knew what the officer said to provoke the incriminating statements. The

       case was before the appellate court on the State’s certificate of impairment; the trial court had

       suppressed defendant’s statements and the State’s evidence after a full evidentiary hearing on

       defendant’s motion to suppress. Jordan, 2011 IL App (4th) 100629, ¶¶ 10-11. Based on the

       record before us, we cannot say defense counsel’s ineffectiveness at trial meets the requirements

       of deficiency and prejudice under Strickland. Strickland v. Washington, 466 U.S. 668 (1984);

       People v. Coleman, 206 Ill. 2d 261, 284 (2002). Perhaps defense counsel knew that defendant’s

       statement was not the result of police interrogation. Perhaps police gave Miranda warnings;

       perhaps not. We should not speculate.




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