                         Docket No. 104084.


                              IN THE
                      SUPREME COURT
                                 OF
                 THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
             JAMYRA E. BEW, Appellee.

                   Opinion filed March 20, 2008.



    JUSTICE GARMAN delivered the judgment of the court, with
opinion.
    Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.



                              OPINION

      Defendant, Jamyra E. Bew, was convicted in the circuit court of
Will County of unlawful possession of cannabis with intent to deliver
in violation of section 5(g) of the Cannabis Control Act (720 ILCS
550/5(g) (West 2002)) and sentenced to six years in prison. Defendant
appealed her conviction, claiming that trial counsel was ineffective for
failing to file a motion to suppress evidence. The appellate court,
relying on People v. Cox, 202 Ill. 2d 462 (2002), reversed the
conviction and remanded the cause for a new trial. People v. Bew, No.
3–03–0779 (2004) (unpublished order under Supreme Court Rule 23)
(Bew I). The State filed a petition for leave to appeal. Although the
State’s petition was denied, this court entered a supervisory order
directing the appellate court to vacate its order in Bew I and
reconsider the matter in light of the subsequent decisions in Illinois v.
Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005),
and People v. Caballes, 221 Ill. 2d 282 (2006) (Caballes II).
     The appellate court thereafter filed a judgment that reached the
same result. No. 3–03–0779 (unpublished order under Supreme Court
Rule 23) (Bew II). The appellate court continued to rely on Cox,
without providing adequate analysis of the effect the Caballes
decisions had on Cox. The State again filed a petition for leave to
appeal. This court granted the State’s petition pursuant to Supreme
Court Rules 315 and 612 (210 Ill. 2d Rs. 315, 612). For the reasons
that follow, we reverse the judgment of the appellate court.

                            BACKGROUND
      Officers Brian Prochaska and Jonathan Walsh of the Joliet police
department stopped defendant’s car in the early morning hours of
February 21, 2002, after observing the car stop at an intersection with
its front tires in the crosswalk. The officers approached the vehicle
and asked defendant for her license and proof of insurance. Defendant
was unable to produce either a license or proof of insurance, but did
give officers her state identification card. When the officers ran
defendant’s information through the computer, they discovered that
defendant’s driver’s license had been suspended. The officers then
placed defendant and her passengers in the back of their squad car for
safekeeping because it was a cold night and the car was going to be
impounded pursuant to city policy. The officers requested backup to
help shelter defendant and her passengers as well as to begin
conducting an inventory search of the car.
      Despite the lack of articulable suspicion of the presence marijuana
or any other illegal drugs, Officer Prochaska requested a canine unit
be sent to the scene. The canine unit was the first of two backup units
that responded. As Officer Walsh was completing defendant’s
citations, the canine unit conducted a sniff of the exterior of
defendant’s car. The dog alerted on the trunk. Officers opened the
trunk and removed a suitcase that they set off to one side of the
vehicle. The dog then sniffed the exterior of the suitcase and alerted
on the suitcase. Thereafter, the suitcase was opened and police



                                  -2-
discovered a large brick of cannabis that weighed in excess of 17,000
grams (37 pounds).
      Defendant’s trial counsel filed a motion to suppress defendant’s
statements, but did not move to suppress the evidence of the cannabis
resulting from the dog sniff. On appeal defendant asserted that she had
been denied effective assistance of counsel. Defendant argued that
trial counsel’s failure to file a motion to suppress under Cox was
deficient performance. Defendant further argued that she was
prejudiced because Cox would have mandated the suppression of the
marijuana and the State could not have prosecuted her without that
evidence.
      The appellate court, relying on Cox, reversed defendant’s
conviction and remanded the case for a new trial. (Bew I). The
appellate court reasoned that a motion to suppress under Cox enjoyed
a reasonable probability of success at trial because the officers “had no
suspicion of contraband in the vehicle when they requested the canine
unit.” Bew I, No. 3–03–0779 (2004) (unpublished order under
Supreme Court Rule 23). As noted, the State sought leave to appeal
to this court, and this court entered a supervisory order directing the
appellate court to vacate its decision and reconsider it in light of the
Caballes decisions.
      On remand, the appellate court continued to rely on Cox and did
not provide an adequate analysis of the Caballes decisions, as this
court directed. Bew II, No. 3–03–0779 (unpublished under Supreme
Court Rule 23). The State again petitioned for leave to appeal, and
this court granted the State’s petition.
      The State makes three arguments on appeal. First, the State
asserts that the appellate court failed to properly reconsider this case
in light of the two subsequent Caballes decisions. Second, the search
of defendant’s car was constitutionally justified under the inventory-
search and inevitable-discovery exceptions to the fourth amendment’s
probable cause and warrant requirements. Finally, the State argues
that the appellate court erred in rejecting the State’s inevitable-
discovery argument as speculative. The State notes that it has never
had the opportunity to prove the veracity of this argument, as no
motion to suppress was ever filed. Therefore, the State asserts that if
this court finds the canine sniff to be illegal, the cause should be


                                  -3-
remanded for a hearing on the merits of the inevitable-discovery
argument.
      Defendant asserts three arguments in response. First, defendant
claims that the appellate court’s holding that she was denied effective
assistance of counsel is correct. Although defendant makes no
argument that the appellate court’s analysis in Bew II was correct, she
still asserts that she was denied effective assistance of counsel.
Defendant argues that because trial counsel’s performance was
deficient at the time of trial, defendant was prejudiced by a loss of
bargaining leverage in plea negotiations. Second, defendant argues
that the record does not support the State’s inevitable-discovery
argument. Finally, defendant argues that this cause should be
remanded for further proceedings, including, if necessary, a motion to
suppress. Defendant notes that if the cause is remanded, the State will
have the opportunity to present relevant evidence as to its inevitable-
discovery argument.

                    STANDARD OF REVIEW
    The facts relevant to our analysis are not disputed by the parties.
The arguments made by the parties present questions of pure law.
Accordingly, we review this matter de novo. People v. Rivera, 227 Ill.
2d 1, 11-12 (2007); Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

                             ANALYSIS
     This court has adopted the two-part test of Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984),
to determine if a defendant was denied effective assistance of counsel.
People v. Manning, No. 104300, slip op. at 7 (February 7, 2008). To
prevail on such a claim, a defendant must show both that his counsel
was deficient and that this deficiency prejudiced the defendant.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
     A defendant, to establish deficiency, must prove that counsel’s
performance, as judged by an objective standard of competence under
prevailing professional norms, was so deficient that counsel was not
functioning as the “counsel” guaranteed by the sixth amendment.
People v. Evans, 186 Ill. 2d 83, 93 (1999). See also People v. Perry,
224 Ill. 2d 312, 342 (2007). Because adversarial testing cannot

                                 -4-
normally be accomplished without “some investigation into ***
various defense strategies,” trial counsel has a duty to make
reasonable investigations of law, or to make a reasonable decision that
such investigations are unnecessary. Kimmelman v. Morrison, 477
U.S. 365, 384, 91 L. Ed. 2d 305, 325, 106 S. Ct. 2574, 2588 (1986),
citing Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct.
at 2066. However, the decision whether to file a motion to suppress
is generally “a matter of trial strategy, which is entitled to great
deference.” People v. White, 221 Ill. 2d 1, 21 (2006).
      At the time of trial, Cox was controlling law. Cox held that police
officers violate the fourth amendment if they do not have “specific and
articulable facts” to justify the use of a canine unit during a routine
traffic stop. Cox, 202 Ill. 2d at 471. In the present case, the officers
testified that they had no suspicion of contraband when they called for
a canine unit. Thus, Cox would have mandated the exclusion of the
marijuana absent the State’s proving an exception to the fourth
amendment’s probable cause and warrant requirements. The record
does not shed any light on whether counsel was aware of Cox or why
counsel would have chosen not to file a motion to suppress under
Cox. The failure to file such a motion is below prevailing professional
norms, as a Cox-based motion stood a reasonable chance of success
in suppressing the evidence at the time of trial.
      The next step in the inquiry is whether defendant was prejudiced
by the alleged deficiency. “In order to establish prejudice resulting
from failure to file a motion to suppress, a defendant must show a
reasonable probability that: (1) the motion would have been granted,
and (2) the outcome of the trial would have been different had the
evidence been suppressed.” People v. Patterson, 217 Ill. 2d 407, 438
(2005), citing People v. Orange, 168 Ill. 2d 138, 153 (1995).
      On remand, the appellate court rested its prejudice determination
on the conclusion that post-Caballes, a Cox-based motion still
“enjoyed a reasonable probability of success.” Bew II, No. 3–03–0779
(2006) (unpublished order under Supreme Court Rule 23). Because
the appellate court relied on Cox, we now review the proper
interpretation of Cox, in light of the subsequent Caballes decisions.
      In Cox, this court held that evidence obtained from a
suspicionless dog sniff was a violation of the fourth amendment. This
court applied Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct.

                                  -5-
1868 (1968), to a traffic stop and concluded that the dog sniff was an
illegal search. Cox gave two justifications for this conclusion. First,
the court reasoned that the officers lacked “specific and articulable
facts” justifying the request for a canine unit. Second, the court stated
that “defendant’s detention, considered in light of the scope and
purpose of the traffic stop, was overly long.” Cox, 202 Ill. 2d at 471.
Thus, Cox held that for a canine sniff to be valid under the fourth
amendment, officers must have specific and articulable facts justifying
the sniff and the stop must not be unreasonably prolonged. A year
later, in People v. Caballes, 207 Ill. 2d 504 (2003) (Caballes I), this
court cited the specific and articulable facts prong of Cox to justify the
suppression of marijuana found after a canine search at a traffic stop.
The court in Caballes I held that a canine sniff without specific and
articulable facts “unjustifiably broadened the scope of an otherwise
routine traffic stop into a drug investigation.” Caballes I, 207 Ill. 2d
at 509, citing Cox, 202 Ill. 2d at 467. The majority opinion in
Caballes I noted that, “[a]s in Cox, the police impermissibly
broadened the scope of the traffic stop in this case into a drug
investigation because there were no specific and articulable facts to
support the use of a canine sniff.” Caballes I, 207 Ill. 2d at 509.
      Thereafter, in Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d
842, 125 S. Ct. 834 (2005), the United States Supreme Court rejected
this court’s fourth amendment analysis and vacated this court’s
Caballes I decision. The Court held that,
             “the use of a well-trained narcotics-detection dog–one that
          ‘does not expose noncontraband items that otherwise would
          remain hidden from public view,’ [citation]–during a lawful
          traffic stop generally does not implicate legitimate privacy
          interests. *** Any intrusion on respondent’s privacy
          expectations does not rise to the level of a constitutionally
          cognizable infringement.” Caballes, 543 U.S. at 409, 160 L.
          Ed. 2d at 847, 125 S. Ct. at 838.
Therefore, the Court rejected this court’s application of fourth
amendment principles to a dog sniff. The Court reaffirmed that a dog
sniff is sui generis, as it discloses only the presence or absence of
contraband. Caballes, 543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S.
Ct. at 838 (citing United States v. Place, 462 U.S. 696, 77 L. Ed. 2d


                                   -6-
110, 103 S. Ct. 2637 (1983), and City of Indianapolis v. Edmond,
531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000)).
     On remand, this court acknowledged the Supreme Court decision
in Caballes and concluded that the Illinois Constitution did not require
a different result. Caballes II, 221 Ill. 2d 282.
     After the Caballes decisions, it is clear that a suspicionless dog
sniff at a routine traffic stop is not a violation of the fourth
amendment. Therefore, there is no basis to claim that a dog sniff is
illegal merely because the officers lacked “specific and articulable
facts” before calling a canine unit. To the extent that Cox held
otherwise, Cox is now expressly overruled.
     While the specific and articulable facts prong of Cox is overruled,
the duration prong still survives. The duration prong was cited with
approval in Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S.
Ct. at 837, and reaffirmed in Muehler v. Mena, 544 U.S. 93, 101, 161
L. Ed. 2d 299, 308-09, 125 S. Ct. 1465, 1471 (2005), (citing
Caballes), and acknowledged in this court’s subsequent decision in
People v. Driggers, 222 Ill. 2d 65, 73 (2006).
     Despite Caballes vitiating the “articulable suspicion” prong of
Cox, the appellate court on remand continued to rely on Cox because
“the United States Supreme Court noted the Cox decision with
approval.” Bew II, No. 3–03–0779 (unpublished order under Supreme
Court Rule 23). The appellate court reasoned that the present case
was factually similar to Cox in that officers had stopped defendant for
“a minor traffic violation” and that they had “no suspicion of
contraband in the vehicle when they requested the canine unit.” Bew
II, No. 3–03–0779 (unpublished order under Supreme Court Rule
23).1
     The appellate court’s reliance on the Supreme Court’s citation to
Cox is misplaced. The Supreme Court favorably cited Cox only to
support the point that a traffic stop that is lawful at its inception “can
become unlawful if it is prolonged beyond the time reasonably
required to complete that mission.” Caballes, 543 U.S. at 407, 160 L.


   1
    The appellate court provided no discussion or argument regarding the
duration of defendant’s stop. Thus, the entire basis for the appellate court’s
Cox analysis was founded upon the now overruled portion of Cox.

                                     -7-
Ed. 2d at 846, 125 S. Ct. at 837. The Court continued, noting that had
the record in Caballes supported such a claim, “a similar result would
be warranted.” Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 846, 125
S. Ct. at 837. Thus, the Court in Caballes cited Cox for the limited
proposition that a lawful seizure can become unlawful if it is
unreasonably prolonged. The Court’s opinion in Caballes did not
endorse the articulable-suspicion prong of Cox. In fact, as discussed
above, the Court implicitly overruled that prong of the Cox analysis.
      In addition to improperly relying on the overruled portion of Cox,
Bew II overlooked the well-established principle that a defendant may
not rely on precedent that has been overruled to claim that trial
counsel’s deficiencies were prejudicial. See People v. Coleman, 168
Ill. 2d 509, 533 (1995), citing Lockhart v. Fretwell, 506 U.S. 364, 122
L. Ed. 2d 180, 113 S. Ct. 838 (1993). In Lockhart, the Court drew a
distinction between the time period in which the two separate prongs
of the Strickland analysis are to be judged. The Court noted that “in
order to determine whether counsel performed below the level
expected from a reasonably competent attorney, it is necessary to
‘judge ... counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.’ “ Lockhart, 506
U.S. at 371, 122 L. Ed. 2d at 190, 113 S. Ct. at 844, quoting
Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.
However, the Court went on to reason that the same temporal
constraints do not apply to the prejudice prong of the Strickland
analysis. The Court noted that the prejudice prong focuses on whether
counsel’s deficiencies render “the result of the trial unreliable or the
proceeding fundamentally unfair.” Lockhart, 506 U.S. at 372, 122 L.
Ed. 2d at 191, 113 S. Ct. at 844.2 Thus, the Court allowed subsequent
changes in the case law, even those that were adverse to a defendant,


   2
    It is worth noting that Lockhart examined this issue in the context of a
collateral review. Although the instant case comes before this court on direct
appeal and not as a collateral attack, the principle is nonetheless applicable,
as “[j]udicial opinions announcing new constitutional rules applicable to
criminal cases are retroactive to all cases pending on direct review at the time
the new constitutional rule is declared.” People v. Erickson, 117 Ill. 2d 271,
288 (1987), citing Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107
S. Ct. 708 (1987).

                                      -8-
to nonetheless inform the determination of prejudice. The Court
reasoned that to hold otherwise would “grant the defendant a windfall
to which the law does not entitle him.” Lockhart, 506 U.S. at 370,
122 L. Ed. 2d at 189, 113 S. Ct. at 843.
      Because the Caballes decisions overruled the articulable-
suspicion prong of Cox, defendant cannot establish prejudice on this
basis. Further, because the appellate court relied on the reasonable-
suspicion prong to demonstrate that defendant’s Cox-based motion to
suppress enjoyed a reasonable probability of success, the basis of the
appellate court’s finding of prejudice is now overruled.
      Following Cox, there are still grounds available to challenge the
admissibility of evidence found after a dog sniff of a car during a
routine traffic stop. Among these reasons are the duration of the stop,
the initial lawfulness of the detention, and the training and reliability
of the canine and its handler. See Caballes, 543 U.S. 405, 160 L. Ed.
2d 842, 125 S. Ct. 834.
      Defendant cites these other grounds for suppression to support
her argument that she was denied effective assistance of counsel.
Defendant argues that as a result of trial counsel’s deficient
performance, “defendant cannot challenge the propriety of the initial
stop, the accuracy of the drug detection dog, or the adequacy of the
canine handler’s training.”
      The State counters defendant’s assertion by claiming that a
motion to suppress would fail based on the fourth amendment
exceptions of inventory searches and inevitable discovery. Further, the
State contends that the appellate court’s dismissal of these arguments
as “speculation and conjecture” is inappropriate, as the State has not
had the opportunity to prove these factors because defendant never
filed a motion to suppress.
      The record is insufficient to support either party’s argument.
Because no motion to suppress was filed, defendant was unable to
argue that the evidence was inadmissable on an alternative basis, and
the State never had an opportunity to argue its exceptions to the
fourth amendment’s probable cause and warrant requirements.
      In Massaro v. United States, 538 U.S. 500, 155 L. Ed. 2d 714,
123 S. Ct. 1690 (2003), the United States Supreme Court recognized
that ineffective assistance of counsel claims are preferably brought on

                                  -9-
collateral review rather than on direct appeal. This is particularly true
where, as here, the record on direct appeal is insufficient to support
a claim of ineffective assistance of counsel. In Massaro, the Supreme
Court rejected a Second Circuit Court of Appeals rule that required
a defendant to bring a claim for ineffective assistance on direct review
or else forfeit that claim. In doing so, the Court reasoned that “[w]hen
an ineffective-assistance claim is brought on direct appeal, appellate
counsel and the court must proceed on a trial record not developed
precisely for the object of litigating or preserving the claim and thus
often incomplete or inadequate for this purpose.” Massaro, 538 U.S.
at 504-05, 155 L. Ed. 2d at 720, 123 S. Ct. at 1694. The Court
further reasoned that in a collateral proceeding,
          “the defendant ‘has a full opportunity to prove facts
          establishing ineffectiveness of counsel, the government has a
          full opportunity to present evidence to the contrary, the
          district court hears spoken words we can see only in print and
          sees expressions we will never see, and a factual record
          bearing precisely on the issue is created.’ ” Massaro, 538
          U.S. at 506, 155 L. Ed. 2d at 721, 123 S. Ct. at 1694,
          quoting United States v. Griffin, 699 F.2d 1102, 1109 (11th
          Cir. 1983).
     The situation described in Massaro is analogous to the present
situation. Here, the record on direct appeal is insufficient to address
any of defendant’s alternative grounds for suppression. It is also
insufficient to support any of the State’s counter arguments.
Therefore, even though we find that defendant has, on this record,
failed to prove ineffective assistance of counsel, we note that
defendant may raise these alternative grounds for suppression under
the Post-Conviction Hearing Act (725 ILCS 5/122–1 through 122–8
(West 2002)). This disposition allows both defendant and the State an
opportunity to develop “a factual record bearing precisely on the
issue.”
     As a final note, we address defendant’s alternative basis of
prejudice, the loss of bargaining leverage in plea negotiations.
Defendant contends that had trial counsel recognized the importance
of Cox and filed a motion to suppress, the State would have been
forced to proffer a better plea, which defendant would have accepted.
Defendant’s argument fails, as it is legally insufficient.

                                  -10-
     Defendant’s claim is entirely speculative. There is no factual basis
in the record to support the contention that defendant and the State
were involved in active or serious plea negotiations. There is no
evidence that these negotiations would have had a different outcome
had a motion to suppress been filed. There is no basis to assert that
defendant would have accepted a plea had one been offered. In fact,
defendant admits that had the motion to suppress been granted that
there would have been no prosecution. Strickland requires actual
prejudice be shown, not mere speculation as to prejudice. See People
v. Olinger, 176 Ill. 2d 326, 363 (1997) (“pure speculation falls far
short of the demonstration of actual prejudice required by
Strickland”); People v. Whitehead, 169 Ill. 2d 355, 403 (1996)
(“Simply put, mere speculation concerning prejudice to the defendant
is not sufficient to warrant reversal”); People v. Palmer, 162 Ill. 2d
465, 481 (1994) (“Proof of prejudice, however, cannot be based on
mere conjecture or speculation as to outcome”), citing People v. Hills,
78 Ill. 2d 500 (1980)). Accordingly, this court rejects defendant’s
argument that she was prejudiced by a loss of leverage in plea
negotiations.

                             CONCLUSION
      The Caballes decisions overruled Cox to the extent that Cox held
police must have an articulable suspicion before conducting a canine
sniff at a traffic stop. Because the appellate court erred in its reliance
on Cox, and because the record is insufficient to review the alternative
arguments of the parties, we overrule the appellate court, but note that
defendant may attempt to utilize the Post-Conviction Hearing Act
(725 ILCS 5/122–1 through 122–8 (West 2002)) to raise these
alternative grounds and develop a factual record.
      Finally, we note that before the appellate court, defendant also
claimed that the evidence presented at trial was insufficient to support
her conviction. Because the appellate court found defendant’s trial
counsel was ineffective for failing to file a Cox-based motion, it was
unnecessary to reach this insufficiency claim. Because this court has
reversed the finding of ineffective assistance, we remand the cause to
the appellate court for consideration of defendant’s remaining
argument.


                                  -11-
Appellate court judgment reversed;
                  cause remanded.




-12-
