                           NO. 4-06-0228          Filed 10/11/07

                     IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,        )   Appeal from the
          Plaintiff-Appellee,               )   Circuit Court of
          v.                                )   Livingston County
FORREST D. CHAPMAN III                      )   No. 05CF104
          Defendant-Appellant               )
                                            )   Honorable
                                            )   Jennifer H. Bauknecht,
                                            )   Judge Presiding.


          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          Following a January 2006 bench trial, the trial court

convicted defendant, Forrest D. Chapman III, of possession of a
controlled substance (less than 15 grams of a substance contain-

ing cocaine) and possession of cannabis (more than 30 but less

than 500 grams) (720 ILCS 570/402(c) (West 2004); 720 ILCS

550/4(d) (West 2004)).   The court sentenced him to two years'

probation and six weekends in jail.

          Defendant appeals, arguing that (1) the trial court

erred by denying his motion to suppress the evidence against him

because police violated the "knock and announce" rule when they

executed a search warrant at his residence and (2) his stipulated

bench trial was tantamount to a guilty-plea proceeding, thus

requiring that he be given the admonishments set forth in Supreme

Court Rule 402 (177 Ill. 2d R. 402).   We affirm.
                            I. BACKGROUND

                 A. The Motion To Suppress Evidence

            At the September 2005 hearing on defendant's motion to

suppress evidence, the evidence showed that around 3:30 a.m. on

May 6, 2005, police executed a search warrant at 610 West Grant

in Pontiac, which was a house that belonged to defendant's

longtime girlfriend, Julie Serna.    Defendant, Julie, Julie's

daughter, Elizabeth Serna, Elizabeth's boyfriend, Daris Woods,

and Julie's son, Chase, were present when the search warrant was

executed.

            Pontiac police sergeant Dan Davis testified that he was

one of the officers who executed the search warrant at Julie's

house on May 6, 2005.    Davis detonated a defense-technology (DEF-

TEC) device in the backyard by throwing it over the backyard
fence.   Davis explained that a DEF-TEC device produces a "very

loud report" and gives off a very bright light.    It is "a tool

used by many tactical teams when executing search warrants."     The

purpose of the device is to alert anyone in the house or the area

that police are executing a search warrant.    Davis would not

classify the device as a bomb because it is primarily used for

noise and does not destroy anything.

            Davis also testified that no lights were on at the

house when he detonated the DEF-TEC device.    After he threw it

into the backyard, he joined seven other officers at the north

side of the house.    He was 10 feet from those officers when the

device exploded about three seconds later.    After another four or


                                - 2 -
five seconds, Davis heard police officer Adam Fulkerson yell in a

loud voice, "Police, search warrant."     Although Davis did not see

Fulkerson knock on the door, he heard knocking.     Davis could not

recall specifically how many times he heard Fulkerson announce

their presence.

           Davis further testified that he heard three knocks on

the door immediately after he heard Fulkerson yell, "police,

search warrant," and five or six seconds later, the police

entered the house.   Davis believed that they entered through the

door without using a battering ram.     He heard one of the officers

say that the door was unlocked.   Davis did not know which officer

discovered that the door was unlocked.

           Daris Woods testified that he was at Julie's house when

the police executed the search warrant.     Woods had arrived at the
house between 10 p.m. and 11 p.m. the night before.     He had been

watching television in the living room until the early morning

hours of May 6, 2005.   However, he had turned off the television

and was giving Elizabeth a back massage when they heard an

explosion toward the front of the house.     He asked Elizabeth what

the noise was, and she said she did not know.     A few seconds

later, the police came through the front door into the living

room.   Woods did not hear the police say anything prior to coming

into the house.   After the door opened, the police were screaming

for everyone to get on the ground.     Woods heard Elizabeth say,

"Oh, shit."

           Woods acknowledged that in 2004, he was convicted of


                               - 3 -
two counts of unlawful delivery of cannabis and the felony

offense of unlawful possession of cannabis.    Despite having been

punished for those crimes, he said he would not lie in court.

           Elizabeth testified that during the early morning of

May 6, 2005, she was lying on her stomach in the living room with

Woods.    She heard a loud bang that she thought came from the back

of the house.    Woods asked her what the noise was, and she said

she did not know.    The police then came through the door, saying

"Pontiac PD."    She did not hear anything besides the explosion

before they entered.    The police did not notice that she was

present until she said, "Oh, shit."     At that point, they shined a

flashlight on her and said, "Pontiac PD, get down on the ground."

           Elizabeth acknowledged that Julie and defendant, whom

she referred to as her stepfather, were charged with crimes in
this case and could go to prison.    She stated that she would not

lie under oath even though Julie and defendant could go to

prison.

           Julie testified that she had lived with defendant for

many years.    When she got home in the early morning hours of May

6, 2005, she saw Elizabeth and Woods watching television in the

living room.    She then went upstairs to her bedroom.   Shortly

thereafter, defendant came home and joined her in the bedroom,

where they engaged in sex.    The bedroom door was closed, and one

lamp was turned on.    Even though the window was covered with a

bedsheet, someone standing outside the house would be able to see

that a light was on.    While she and defendant were having sex,


                                - 4 -
defendant thought he heard something.      Defendant got up and went

to the window but could not see anything and went back to bed.

Then Julie heard a "big loud boom" and within seconds, she heard

the front door being rammed open and the words, "Pontiac PD, get

on the ground."   She wrapped herself in a blanket and laid on the

ground and waited for them to come upstairs.      She did not hear

anyone yelling prior to the officers' entry into the house.      She

had consumed four or five beers before returning home that

evening over a six- to seven-hour time period.

          Defendant testified that before he heard the explosion

that night, he thought he had heard something else.      He went to

the window that faced the backyard and looked outside.      He did

not see anything so he let go of the curtain and then immediately

heard the explosion.   A split second, or maybe a second, passed
and then he heard another boom, which was the sound of "something

hitting the front door very hard."      He did not hear anyone say

anything before the front door opened.      Defendant estimated that

the distance from the front door to his upstairs bedroom was

approximately 25 feet if you went on foot and 15 feet "as the

crow flies."   Defendant further testified as follows:

          "Nothing was said.    What--The first explosion

          went off, the bomb, whatever, the grenade or

          device; and then the front door, something

          hit the front door very hard, very loud; and

          then the next thing I heard was [']you didn't

          have to do that.[']    And then I heard the


                                - 5 -
           police say to Elizabeth, [']on the ground,

           quit resisting.[']"

Defendant later clarified that the first thing he heard after the

officers came in was Elizabeth saying, "[Y]ou didn't have to do

that."   He did not hear her say, "Oh, shit."      Defendant then

heard footsteps coming through the house up to the bedroom.         He

could not recall what the police said.       They came into the

bedroom, and he just stood there.

           Julie, defendant, and Woods all testified that the

front door to the house did not work properly and could be opened

without turning the doorknob.

           After considering this evidence and arguments of

counsel, the trial court denied defendant's motion to suppress.

The court specifically found that Davis was a credible witness.
In announcing its ruling from the bench, the court explained as

follows:

           "In assessing the credibility of [Davis], you

           know, he didn't say there was a knock on the

           door.    He didn't see where the knock was.    I

           found him to be credible.      This is his job.

           They were carrying out an operation, and he

           was specific with where he was when he was

           down to seconds[,] which I think is impor-

           tant.

                   [Woods], I just don't find him to be a

           credible witness.    He didn't, he didn't look


                                  - 6 -
          confident in what he was saying.    He didn't,

          I just didn't find him to be that credible,

          and he does have a substantial interest in

          the outcome of the litigation or the hearing

          I should say.    So I didn't find him credible.

          Another thing that really kind of from a

          factual standpoint, [defendant], his testi-

          mony was pretty inconsistent; and it also

          supports the fact that people in different

          rooms in the house are going to hear differ-

          ent things.   There was this distraction de-

          vice going on.    I think everybody agrees that

          that happened.    The question is what happened

          after that.
                From a factual standpoint, I believe

          there was [sic] knocks, announcements, entry.

          Happened very fast.    It wasn't a half an hour

          process where everybody has time to sit there

          and think, oh, there were knocks on the door

          and we wait 15 minutes and we heard more

          knocks on the door.    In the meantime, the

          distraction device had gone off."

          The trial court further pointed out that defendant

testified to hearing a different statement by Elizabeth at the

time the police entered.    Elizabeth and Woods testified she said,

"Oh, shit."   However, defendant said the first thing he heard was


                                - 7 -
Elizabeth saying, "[Y]ou didn't have to do that."   The court

found defendant not credible on that point, because "[h]e didn't

know what happened down there."

          The trial court further noted that Elizabeth did not

look the court in the eye when she took her oath.   The court

explained, "The first thing that tells me is this person has

something to hide; and coupled with the statement of [']oh,

shit['] when there's police barging in the house as opposed to

[']what in the world is going on,['] it just seems like a strange

reaction."

          The court further explained, "I just think that the

witnesses[,] while there are four of them[,] there are some

inconsistencies in their stories that lead me to question the

credibility, and they have reasons to lie."   The court found that
defendant had not met his burden of proof by a preponderance of

the evidence and denied defendant's motion to suppress.

                   B. Defendant's Bench Trial

          At defendant's January 2006 bench trial, the parties

asked (1) for a decision based on stipulated facts and (2) that

the trial court take judicial notice of the testimony presented

at the September 2005 suppression hearing.    The prosecutor then

stated that the evidence produced at trial would be as follows:

(1) on May 4, 2005, officers from the Pontiac police department

apprehended bags of trash outside Julie's house; (2) on May 5,

2005, the officers took the bags to a secured location and

searched them; (3) in one bag, the officers found a plant stem


                              - 8 -
that was identified and field tested as cannabis material; (4)

they also found an empty plastic sandwich bag tied off at the

corner, as is "commonly [done in] drug packaging"; (5) the

officers found mail addressed to defendant at Julie's address;

(6) in another bag, they found 1.8 grams of cannabis material and

mail addressed to defendant at Julie's address; and (7) in

another bag, the officers found remnants of a cannabis cigarette

and mail addressed to Julie.

          Later that day, the officers obtained a search warrant

for Julie's house.   At 3:30 a.m. on May 6, 2005, the Pontiac

Tactical Response Team (TRT) unit executed the search warrant.

Five persons were in the house at the time, including defendant,

Julie, Elizabeth, Chase, and Woods.     After defendant, Julie,

Elizabeth, and Woods were taken to jail, the police used canines
to search the house.

          In the kitchen, officers found (1) a plastic bag, the

contents of which tested positive for cannabis; (2) a tan pipe,

commonly referred to as a "bowl," that contained black residue;

(3) another plastic bag (on top of the refrigerator) containing a

green leafy substance that tested positive for cannabis; and (4)

an electronic scale that was commonly used to weigh drugs.

          In the living room, officers found a clock containing

an air hose connector with black residue on the end of it that

smelled like burned cannabis.   In an upstairs bedroom, officers

found (1) a plate containing a white powder substance that field

tested positive for cocaine, (2) a plastic container with white


                                - 9 -
powder residue that field tested positive for cocaine, (3) a

plastic bag with a knot tied in it, (4) three plastic straws, and

(5) a plastic bag containing a white powdery substance that field

tested positive for cocaine.   Between the mattress and the box

springs, the officers found a plastic bag containing a green

leafy substance that tested positive for cannabis.

          In the office, officers found two "sockets" with part

of a Brillo pad in each socket's end.   Such a device is commonly

employed for drug use.   In the garage, officers found (1) another

socket containing a Brillo pad and (2) inside a toolbox, a

cigarette box containing a plastic bag with a green leafy sub-

stance that field tested positive for cannabis.

          The materials were sent to the Illinois State Crime

Lab, where it was determined that approximately 61 grams of
cannabis had been seized from the house.   The residue from a

plastic pen tested positive for cocaine.   The crime lab did not

test any other suspected cocaine residue because it was the crime

lab's policy not to perform further testing unless the additional

amount would raise the charge to a higher class felony.

          After hearing the stipulated evidence, the trial court

heard arguments of counsel.    Defense counsel argued as follows:

          "It would be difficult for me to make any

          argument that there wasn't sufficient proof

          of residence on behalf of this particular

          [d]efendant.   It would also be difficult for

          me to argue the issue of possession when it


                               - 10 -
comes to the cannabis.     ***   However, Judge,

as you are aware, the information charges

that he knowingly possessed the contraband,

the illegal substance.     There was some evi-

dence that was seized that contained or that

had the presence of a white residue on it.

However, that substance was not tested as far

as some of the pieces of evidence.      There was

a plate.    There was a [B]aggie.

       The only thing that the State had to,

the only thing that the State had analyzed

was the inside of a barrel of an ink pen

where that contained a white residue.      That

was later a residue that was tested at the
crime lab, and that established the presence

of cocaine.    None of the other items were

tested.

       It's our position, Judge, that the fact

that there was a residue inside of an ink pen

is not sufficient evidence to establish that

my client knowingly possessed cocaine.      Of

course, there is the felony amount of canna-

bis.   And like I say, that was an appreciable

amount.    61 grams.   However, there was no

weight as to the residue that was found on

the inside of the ink pen.


                       - 11 -
     Okay.   There was [sic] no statements

from my client that established his knowledge

of the presence of that residue.   He never

made any statements to the police that, yeah,

I knew there was cocaine on the inside of

this ink pen.   There's nothing to indicate

where it was found that would add to his

knowledge of the presence of a substance

inside of an ink pen.

     Okay.   I think it's commonly known that

an ink pen is or a barrel or a straw is some-

times used to ingest the controlled sub-

stance.   However, the State, that does not

relieve the burden of the State to prove that
he was aware of it, aware of its presence.

Finding a [B]aggie of cocaine or finding a

[B]aggie of cannabis that weighed approxi-

mately 28 grams under his mattress is one

thing, and it's very difficult to argue that

he didn't know it was there.   But finding a

residue inside of an ink pen that has no

weight from the crime lab or no weight indi-

cated from any police agency or any evidence

from the State is a different circumstance.

     And I don't feel that that is enough

evidence to find my client guilty of know-


                    - 12 -
            ingly possessing a controlled substance, the

            fact that there was a white powdery substance

            that was located inside the barrel of an ink

            pen."

            The trial court found that it was "more or less con-

ceded" that defendant was guilty of possession of cannabis.    The

court also found that "ample evidence" was present upon which to

find defendant guilty of possession of cocaine.    In so finding,

the court noted that if the ink pen was the only piece of evi-

dence found containing residue, defense counsel's argument may

have been more convincing.    However, given that the pen was found

inside the house, as opposed to outside the home in the yard, and

that other significant residue was found in other areas of the

house, the evidence supported its finding that defendant know-
ingly possessed cocaine.

            Following a March 2006 hearing, the trial court sen-

tenced defendant as stated.    Defendant filed a motion to recon-

sider, raising the same argument set forth in his motion to

suppress.    The court denied defendant's motion to reconsider,

stating that it still believed its factual findings and ruling on

the motion were correct.

            This appeal followed.

                             II. ANALYSIS

  A. The Trial Court's Denial of Defendant's Motion To Suppress

            Defendant first argues that the trial court erred by

denying his motion to suppress the evidence obtained during the


                                - 13 -
search of Julie's house.   Specifically, he contends that the

police circumvented the knock-and-announce rule by using the DEF-

TEC device, which prevented the occupants of the house from

hearing the police announce their presence.   We disagree.

          In People v. Lashmet, 372 Ill. App. 3d 1037, 1040, 868

N.E.2d 368, 371 (2007), this court discussed the standard of

review for a trial court's ruling on a motion to suppress evi-

dence as follows:

                "When ruling on a motion to suppress

          evidence, the trial court often must choose

          between competing versions of fact and weigh

          the credibility of witnesses.   We thus defer

          to the trial court's factual findings unless

          we determine that those findings are mani-
          festly erroneous."

We further explained that an error is "manifest" when it is

"'clearly evident, plain, and indisputable.'"   Lashmet, 372 Ill.

App. 3d at 1040, 868 N.E.2d at 371, quoting People v. Ruiz, 177

Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997).   "Although we

defer to the trial court on questions of fact, we review de novo

whether the law requires suppression of the evidence under those

facts."   Lashmet, 372 Ill. App. 3d at 1040, 868 N.E.2d at 371.

          In denying defendant's motion to suppress evidence, the

trial court stated that it found Davis's testimony to be more

credible than the testimony of defendant's witnesses, all of whom

were inside the house when the police executed the warrant.


                               - 14 -
Specifically, the court noted that (1) discrepancies existed in

the defense witnesses' testimony, (2) some defense witnesses did

not come across as truthful, and (3) they all had reasons to lie.

The court also noted that some of the defense witnesses had been

in the upstairs of the residence and may have been distracted.

Based on the record, we conclude that the court's finding that

the police knocked and announced their authority before entering

was not against the manifest weight of the evidence.

          Moreover, as a matter of law, violations of the knock-

and-announce rule, even if proved, will not automatically result

in the exclusion of evidence obtained as a result of the search.

Hudson v. Michigan, 547 U.S. __, 165 L. Ed. 2d 56, 126 S. Ct.

2159 (2006).   In Hudson, the Court held that the exclusionary

rule is unwarranted under the fourth amendment (U.S. Const.,
amend. IV) for violations for the knock-and-announce rule.

Hudson, 547 U.S. at __, 165 L. Ed. 2d at 71, 126 S. Ct. at 2170.

Given the recent decision of the Supreme Court of Illinois in

People v. Caballes, 221 Ill. 2d 282, 313, 851 N.E.2d 26, 44-45

(2006), reaffirming that court's commitment to the limited-

lockstep analysis regarding decisions of the United States

Supreme Court applying the search-and-seizure provisions of the

fourth amendment, we believe the Supreme Court of Illinois would

likely adhere to Hudson.   Therefore, even if the trial court had

found that the police failed to comply with the knock-and-an-

nounce rule, excluding the evidence obtained in the search would

not necessarily have been required.    In light of our conclusion


                              - 15 -
that the trial court's decision to deny the motion to suppress

was not against the manifest weight of the evidence, we decline

defendant's invitation to address the appropriate remedy for a

violation of the knock-and-announce rule under Illinois law.

                     B.   Rule 402 Admonishments

           Defendant also argues that his convictions must be

vacated because his stipulated bench trial was tantamount to a

guilty-plea proceeding, thus requiring the trial court to admon-

ish him, pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402).

We disagree.

           Initially, we note that defendant failed to raise this

issue at trial or in a posttrial motion.    Ordinarily, issues not

raised in the trial court are considered forfeited on appeal.

People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130
(1988).   However, the forfeiture rule is an admonition to the

parties and not a jurisdictional limitation on the reviewing

court.    See, e.g., People v. Porter, 372 Ill. App. 3d 973, 977,

866 N.E.2d 1249, 1254 (2007), quoting People v. Normand, 215 Ill.

2d 539, 544, 831 N.E.2d 587, 590 (2005).    Because we conclude

that responding to defendant's argument regarding his stipulated

bench trial could provide guidance to trial courts, we choose to

address it.

           Rule 402(a) provides as follows:

                 "The court shall not accept a plea of

           guilty or a stipulation that the evidence is

           sufficient to convict without first, by ad-


                                - 16 -
          dressing the defendant personally in open

          court, informing him of and determining that

          he understands the following[.]"   177 Ill. 2d

          R. 402(a).

The rule goes on to list the admonitions defendant must be given,

such as the nature of the charge and the minimum and maximum

penalties prescribed by law.   177 Ill. 2d Rs. 402(a)(1), (a)(2).

          If a "stipulated bench trial is tantamount to a guilty

plea, the trial court must admonish the defendant pursuant to

Rule 402."   People v. Mitchell, 353 Ill. App. 3d 838, 844, 819

N.E.2d 1252, 1258 (2004).   Whether a defendant's stipulated bench

trial was tantamount to a guilty-plea proceeding requiring Rule

402 admonitions is a question of law that this court reviews de

novo. Mitchell, 353 Ill. App. 3d at 844, 819 N.E.2d at 1258.
          Defendant contends that the following circumstances

rendered his bench trial tantamount to a guilty-plea proceeding:

(1) the State's entire case was presented via stipulated facts,

(2) defense counsel did not challenge any of the State's evidence

of guilt, and (3) defense counsel agreed that the State had

proved defendant guilty of possession of cannabis.    We are not

persuaded.

          In People v. Horton, 143 Ill. 2d 11, 22, 570 N.E.2d

320, 325 (1991), the Supreme Court of Illinois addressed a

defendant's claim that his stipulated bench trial was tantamount

to a guilty-plea proceeding, thus entitling him to be admonished

under Rule 402.   Prior to trial in Horton, defense counsel filed


                               - 17 -
a motion to suppress identification evidence, which the trial

court denied.    Horton, 143 Ill. 2d at 15, 570 N.E.2d at 321-22.

Later, at a pretrial hearing, defense counsel stated that defen-

dant was "'not contesting the sufficiency of the evidence'" and

merely sought to preserve the suppression issue. (Emphasis

omitted.)   Horton, 143 Ill. 2d at 16, 570 N.E.2d at 322.

            At the defendant's trial, all of the State's evidence

was admitted by stipulation, except for the testimony of one

witness.    Defense counsel conducted a brief cross-examination of

that witness.    Horton, 143 Ill. 2d at 16, 570 N.E.2d at 322.

During closing argument, defense counsel again stated that

defendant was not contesting the sufficiency of the State's

evidence.   Horton, 143 Ill. 2d at 17, 570 N.E.2d at 322.

            The supreme court concluded that the defendant's bench
trial was not tantamount to a guilty-plea proceeding, specifi-

cally noting that (1) conceding during argument that the State

presented sufficient evidence to convict was not equivalent to

stipulating to the defendant's guilt, and (2) the defendant had

presented and preserved a defense--namely, the suppression issue.

Horton, 143 Ill. 2d at 21-22, 570 N.E.2d at 324-25.   The court

"unequivocally" held that "a stipulated bench trial is not

tantamount to a guilty plea if the defendant presented and

preserved a defense."    Horton, 143 Ill. 2d at 22, 570 N.E.2d at

325.

            More recently, in People v. Phillips, 217 Ill. 2d 270,

840 N.E.2d 1194 (2005), the supreme court addressed the issue of


                               - 18 -
stipulated evidence, though not precisely for the purpose of

deciding the necessity for Rule 402 admonishments.       Instead, the

court considered whether defense counsel can waive his client's

confrontation-clause rights by entering into evidentiary stipula-

tions.   Discussing its prior holding on the issue in People v.

Campbell, 208 Ill. 2d 203, 802 N.E.2d 1205 (2003), the court

wrote, in pertinent part, as follows:

          "[In Campbell,] we held that a defendant must

          personally waive the right of confrontation

          'when the State's entire case is to be pre-

          sented by stipulation and the defendant does

          not present or preserve a defense ***, or

          where the stipulation includes a statement

          that the evidence is sufficient to convict
          the defendant.'   [Citation.]    We attached no

          other restrictions to defense counsel's au-

          thority to stipulate to the admission of

          evidence, and, except in those specified

          instances where the stipulation is tantamount

          to a guilty plea, we imposed no obligations

          on the trial court or counsel to admonish the

          defendant and ensure that the advisement is

          made a part of the record."     (Emphasis in

          original.)   Phillips, 217 Ill. 2d at 283, 840

          N.E.2d at 1202, quoting Campbell, 208 Ill. 2d

          at 218, 802 N.E.2d at 1213.


                              - 19 -
Borrowing language from Campbell and Phillips, defendant asserts

that he should have been admonished under Rule 402 because the

State's "entire case" was presented by stipulation.

           We reject defendant's assertion for two reasons.

First, defendant overlooks the additional language quoted above,

indicating that a defendant's confrontation-clause rights are not

at risk of being compromised unless the entire case is presented

by stipulation and the defendant failed to present or preserve a

defense.   Phillips, 217 Ill. 2d at 283, 840 N.E.2d at 1202.     In

this case, defendant presented and preserved two defenses: (1)

the suppression issue and (2) whether he was guilty of knowing

possession of cocaine.

           Moreover, we strongly disagree with defendant's charac-

terization of the State's case as being "entirely" presented by
stipulation.   The evidence presented at the hearing on defen-

dant's motion to suppress was not entered by stipulation.

Instead, (1) the State put on one witness, (2) defense counsel

cross-examined that witness, and (3) defense counsel put on four

additional witnesses.    Only later, at defendant's stipulated

bench trial, did the trial court take judicial notice of the

record of the hearing on defendant's motion to suppress.    Thus,

the concerns addressed in Phillips and Campbell are not impli-

cated in this case.   Instead, the defense preserved the suppres-

sion issue and the stipulated evidence included the transcript of

the suppression hearing, at which defense counsel conducted

vigorous cross-examination of the State's witness and put on


                               - 20 -
evidence.

            Under these circumstances, Rule 402 admonitions have no

place.   Under Rule 402(a)(4), the trial court must admonish the

defendant that he is waiving "the right to be confronted with the

witnesses against him."   177 Ill. 2d R. 402(a)(4).   Such a waiver

makes no sense when defense counsel had already cross-examined

the State's witness on the issue defendant preserved for review.

We emphasize this point because experience teaches us that it is

hardly uncommon for defendants (particularly in drug cases) who

have lost their motions to suppress evidence to stipulate at

their later bench trials that the trial court may consider the

evidence the parties presented at the suppression hearing.     This

entirely sensible practice (1) avoids wasting the court's time,

as well as the time of everyone else (including the witnesses)
connected with the proceedings, (2) preserves for appeal what is

often the only real issue in the case--namely, the correctness of

the court's denial of the defendant's motion to suppress, and (3)

does not violate the defendant's right to confront and cross-

examine the witnesses against him (one of the fundamental con-

cerns underlying Rule 402) because the defendant has already

exercised that right.

            Moreover, Campbell and Phillips did not overrule

Horton, and the circumstances in Horton bear striking similari-

ties to those presented here.    Although in this case the State's

evidence regarding the possession of cannabis and cocaine was

entirely by stipulation, defendant did not stipulate to the


                                - 21 -
sufficiency of the evidence.

            Further, under Horton, a stipulated bench trial is not

tantamount to a guilty-plea proceeding if the defendant preserves

a defense.    In addition to arguing that the stipulated facts did

not prove him guilty of cocaine possession, defendant presented

and preserved a defense based on the trial court's denial of his

motion to suppress evidence.    (We note that in Horton, the sole

defense the defendant had preserved was the suppression issue.)

            We thus conclude that because defendant (1) did not

stipulate to the sufficiency of the State's evidence and (2)

preserved a defense, his bench trial was not tantamount to a

guilty-plea proceeding, and the trial court was not required to

admonish him under Rule 402.    See Horton, 143 Ill. 2d at 21-22,

570 N.E.2d at 324-25; People v. Rowell, No. 4-04-0481, slip op.
at 12 (December 15, 2006), ___ Ill. App. 3d ___, ___ N.E.2d ___

(in which this court held that even though the State's entire

case was presented by stipulation, the trial court was not

required to issue Rule 402 admonishments because the defendant

presented and preserved a defense, and the stipulated bench trial

was not tantamount to a guilty-plea proceeding).

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its

statutory assessment of $50 against defendant as costs for this

appeal.   55 ILCS 5/4-2002(a) (West 2004); see also People v.

Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985),


                               - 22 -
citing People v. Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194,

199 (1978).

           Affirmed.

           COOK, J., concurs.

           MYERSCOUGH, J., specially concurs in part and dissents

in part.




                                - 23 -
            JUSTICE MYERSCOUGH, specially concurring in part and

dissenting in part:

            I respectfully specially concur in part and dissent in

part.   I agree the trial court properly denied defendant's motion

to suppress; however, I disagree with the majority's holding that

defendant was not entitled to Rule 402 admonishments during his

stipulated bench trial.

            Defendant's stipulated bench trial was tantamount to a

guilty plea on count II, alleging the unlawful possession of

cannabis.    720 ILCS 550/4(d) (West 2004).    At defendant's bench

trial, defense counsel stated as follows:

            "It would be difficult for me to make any

            argument that there wasn't sufficient proof

            of residence on behalf of this particular
            [d]efendant.   It would also be difficult for

            me to argue the issue of possession when it

            comes to the cannabis. ***

                 ***

                 *** Of course, there is the felony

            amount of cannabis.    And like I say, that was

            an appreciable amount."

The trial court found that it was "more or less conceded" that

defendant was guilty on count II, which was unlawful possession

of cannabis.

            The plain language of Rule 402 requires defendant to be

admonished when he stipulates that the evidence is sufficient to


                                  - 24 -
convict.   The rule states, "The court shall not accept a plea of

guilty or a stipulation that the evidence is sufficient to

convict without first, by addressing the defendant personally in

open court, informing him of and determining that he understands

the following."   (Emphasis added.)     177 Ill. 2d R. 402(a).   The

rule than lists the various admonitions defendant is entitled to,

including the right to confront the witnesses against him.

           I agree with the majority that defendant did not

stipulate the evidence was sufficient to convict on count I, the

knowing possession of cocaine.   However, because defense counsel

stipulated the evidence was sufficient on count II, such stipula-

tion was tantamount to a guilty plea on count II and required

Rule 402 admonishments.   The supreme court cases addressing this
issue cite two situations where defendant is entitled to admon-

ishments: (1) when the State's entire case is to be presented by

stipulation and defendant does not present or preserve a defense;

or (2) the stipulation includes a statement that the evidence is

sufficient to convict.    See Phillips, 217 Ill. 2d at 283, 840

N.E.2d at 1202 ("[W]e held that a defendant must personally

[(emphasis omitted)] waive the right of confrontation 'when the

State's entire case is to be presented by stipulation and the

defendant does not present or preserve a defense ***, or [(empha-

sis added)] where the stipulation includes a statement that the

evidence is sufficient to convict the defendant.'      Campbell, 208

Ill. 2d at 218[, 802 N.E.2d at 1213]").      The majority relies

heavily on Horton, which was decided in 1991.      The court's later

                               - 25 -
decision in Campbell cites Horton only insomuch as it supports

the first instance in which defendant is entitled admonishments.

The court's subsequent decisions in Campbell and Philips make

clear that the defendant is entitled to admonishments when the

stipulation contains a statement that the evidence is sufficient

to convict.   Therefore, in addition to the plain language of Rule

402, the prevailing case law supports finding that defendant in

this case was entitled to admonishments.

           I also disagree with the majority when it states that

defendant's sixth-amendment right to confront the witnesses

"against him" was exercised during the motion-to-suppress hear-

ing.   During a hearing on a motion to suppress, defendant's

liberty is not at stake, the issue of guilt is not before the

trier of fact, and the witnesses do not testify "against him."
See United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985)

("The right to confrontation applies when the ability to confront

witnesses is most important--when the trier of fact determines

the ultimate issue of fact").    Rather, a motion-to-suppress

hearing has a singular purpose of determining the propriety of

the search that led to the State's physical evidence in the case.

In Andrus, the Seventh Circuit held that a hearing to determine

the admissibility of hearsay statements did not entitle defendant

to confrontation rights under the sixth amendment because the

issue was not before the jury and did not determine the defen-

dant's guilt.   Andrus, 775 F.2d at 836.   Like Andrus, the hearing

on defendant's motion to suppress in this case did not afford


                                - 26 -
defendant the opportunity to cross-examine.   In fact, because a

motion to suppress is almost always going to be filed by a

defendant, the witnesses are usually called by the defendant and

questioned on direct examination by defense counsel.   Cross-

examination during such motions is usually the province of the

State.

          For these reasons, I specially concur in the majority's

decision affirming the trial court's decision on defendant's

motion to suppress, but I dissent as to defendant's conviction of

possession of cannabis when he stipulated the evidence was

sufficient to convict and was not admonished under Rule 402.




                             - 27 -
