                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hunter, 2013 IL App (3d) 110310




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    CASEY D. HUNTER, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-11-0310


Rule 23 Order filed        January 11, 2013
Motion to publish
allowed                    February 8, 2013
Opinion filed              February 8, 2013
Rehearing denied           February 14, 2013


Held                       Defense counsel was not ineffective in failing to move to quash
(Note: This syllabus       defendant’s arrest and suppress evidence that he possessed a firearm,
constitutes no part of     regardless of defendant’s contentions that the arresting officers lacked
the opinion of the court   probable cause or a reasonable suspicion to stop the truck in which
but has been prepared      defendant was a passenger and that the seizure of defendant was
by the Reporter of         unreasonable, since defendant fled when the truck was stopped, he was
Decisions for the          not seized during the stop, his flight and subsequent discharge of a
convenience of the         firearm provided probable cause for his ultimate seizure and arrest, and
reader.)
                           the proposed motions would have failed.


Decision Under             Appeal from the Circuit Court of Rock Island County, No. 10-CF-420;
Review                     the Hon. Greg G. Chickris, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Yasaman Hannah Navai, of State Appellate Defender’s Office, of
Appeal                     Chicago, for appellant.

                           Mark Senko, State’s Attorney, of Rock Island (Terry A. Mertel and Justin
                           A. Nicolosi, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE HOLDRIDGE delivered the judgment of the court, with
                           opinion.
                           Justices McDade and Carter concurred in the judgment and opinion.



                                             OPINION

¶1          Defendant, Casey D. Hunter, was charged with attempted first degree murder (720 ILCS
        5/9-1(a)(1), 8-4 (West 2010)), aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(3)
        (West 2010)), and unlawful possession of weapons by a felon (720 ILCS 5/24-1.1(a) (West
        2010)). At a jury trial, defendant was found guilty of possession of weapons by a felon and
        acquitted of the other two charges. Defendant challenges his conviction, arguing that his trial
        counsel was ineffective for failing to file a motion to quash arrest and suppress evidence
        establishing his possession of a firearm. We affirm.

¶2                                              FACTS
¶3          As a result of events that occurred on May 3, 2010, defendant was charged with
        attempted first degree murder (720 ILCS 5/9-1(a)(1), 8-4 (West 2010)), aggravated discharge
        of a firearm (720 ILCS 5/24-1.2(a)(3) (West 2010)), and unlawful possession of weapons by
        a felon (720 ILCS 5/24-1.1(a) (West 2010)).
¶4          At trial Rock Island police officer Tim Muehler testified that at 2 p.m. on May 3, 2010,
        he was patrolling in a marked squad car with Officer Jeff Key when Muehler noticed a
        pickup truck parked on the street in front of a house that was a “known drug spot.” Several
        weeks earlier, Rock Island police had executed a search warrant on the house as a result of
        suspected drug dealing by a resident, Barry Hubbard. As Muehler and Key drove past the
        house, they observed Hubbard sitting in the front yard. A white male was seated in the
        truck’s driver seat, talking to a black male, later identified as defendant, who was seated in
        the passenger seat. The officers drove past the truck, circled the block, and returned to the
        home. By that time, the truck was gone.
¶5          Muehler and Key kept driving, later discovering the same truck stopped at a nearby
        intersection. As the officers drove past the truck, they observed the same driver and
        defendant seated inside. Both were staring straight ahead with “pretty scared” looks on their


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       faces. The officers decided to follow the truck and executed a U-turn. As the officers turned
       around, they observed the truck now parked about one block away from the drug house.
       Defendant exited the truck and walked between two nearby houses and out of the officers’
       sight. Key parked the cruiser in a nearby parking lot, and Muehler exited to observe the truck
       on foot. Several minutes later, Muehler saw defendant approach the truck. The driver exited,
       and the two talked on the sidewalk for about 30 seconds, before shaking hands, getting back
       in the truck, and driving off. At that point, Muehler signaled for Key to pick him up so the
       officers could follow the truck and execute a traffic stop.
¶6          Muehler and Key followed directly behind the truck in the cruiser. Key activated the
       cruiser’s emergency lights and siren. The truck pulled into a parking lot and parked.
       Immediately as the truck came to a stop, defendant exited the vehicle and ran from the truck.
       Muehler chased defendant and could see the brown handle of a revolver poking out from his
       waistband. After chasing defendant around the corner of a house, Muehler observed
       defendant running with the revolver in his hand. Defendant stopped running, turned toward
       Muehler, pointed the revolver in the air, and fired one shot. Muehler then fired one shot back,
       missing defendant. Defendant began running again, and Muehler fired two more shots, which
       hit defendant. Key then approached to assist Muehler in arresting defendant.
¶7          The trial court admitted into evidence the revolver and defendant’s later statements
       admitting to possessing it. The jury convicted defendant of unlawful possession of weapons
       by a felon but acquitted him of attempted murder and aggravated discharge of a firearm. The
       trial court sentenced him to 10 years’ imprisonment. Defendant appeals.

¶8                                          ANALYSIS
¶9         Defendant argues that trial counsel was ineffective for failing to file a motion to quash
       arrest and suppress evidence. Specifically, defendant argues that the officers did not have
       probable cause or reasonable suspicion to initiate the traffic stop of the truck. The traffic stop
       therefore resulted in an unreasonable seizure of defendant, tainting the subsequently
       recovered evidence establishing defendant’s possession of a firearm.
¶ 10       In order to prevail on a claim of ineffective assistance of counsel, defendant must show
       that: (1) counsel’s performance was deficient; and (2) counsel’s deficient performance
       prejudiced defendant. Strickland v. Washington, 466 U.S. 668 (1984). Counsel’s decision
       whether to file a motion to quash arrest or suppress evidence is generally “a matter of trial
       strategy, which is entitled to great deference.” People v. White, 221 Ill. 2d 1, 21 (2006),
       abrogated on other grounds by People v. Luedemann, 222 Ill. 2d 530 (2006). For counsel’s
       decision to be considered deficient, defendant must show that the unfiled motion stood a
       reasonable chance of success at the time of trial. People v. Bew, 228 Ill. 2d 122 (2008).
¶ 11       For a motion to quash arrest and suppress evidence to be successful in the present case,
       defendant must first establish that the traffic stop constituted an unreasonable seizure of
       defendant. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Defendant argues that the
       traffic stop of the truck resulted in an unlawful seizure of defendant because it was not
       supported by reasonable suspicion, as required by Terry v. Ohio, 392 U.S. 1 (1968). To
       support a Terry stop, the officer must have specific and articulable facts which, taken

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       together with rational inferences therefrom, reasonably warrant the intrusion. Id.; 725 ILCS
       5/107-14 (West 2010).
¶ 12       In the present case, because defendant fled, he was not seized for purposes of the fourth
       amendment. As a result, he cannot challenge the government’s action. Therefore, we do not
       reach the question of whether the traffic stop was supported by reasonable suspicion.
¶ 13       As a general matter, a seizure is said to occur where “in view of all of the circumstances
       surrounding the incident, a reasonable person would have believed that he was not free to
       leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J., joined
       by Rehnquist, J.). However, this test states “a necessary, but not a sufficient, condition for
       seizure.” (Emphases in original.) California v. Hodari D., 499 U.S. 621, 628 (1991). A
       seizure additionally requires that “ ‘the officer, by means of physical force or show of
       authority, has in some way restrained the liberty of a citizen.’ ” Florida v. Bostick, 501 U.S.
       429, 434 (1991) (quoting Ohio, 392 U.S. at 19 n.16). Defendant’s “freedom of movement”
       must actually be restrained. Brendlin v. California, 551 U.S. 249, 254 (2007). In the absence
       of officers applying physical force to restrain the suspect, the suspect is not seized until he
       yields to the officer’s show of authority. Hodari D., 499 U.S. at 626 (“The narrow question
       before us is whether, with respect to a show of authority as with respect to application of
       physical force, a seizure occurs even though the subject does not yield. We hold that it does
       not.”); Brendlin, 551 U.S. 249. While an officer yelling “Stop, in the name of the law!” may
       constitute a seizure if the suspect submits to such a show of authority by halting, no seizure
       occurs when the suspect responds by fleeing; in the latter case, the suspect’s liberty and
       freedom of movement have not been restrained. Hodari D., 499 U.S. 621. In short, the fourth
       amendment is not implicated by attempted seizures.
¶ 14       The same seizure requirements apply to traffic stops. The police articulate a show of
       authority by activating their cruiser’s emergency lights and/or siren. A seizure of the driver
       does not occur until the driver submits to the show of authority by stopping her vehicle.
       Brendlin, 551 U.S. 249; Brower v. County of Inyo, 489 U.S. 593 (1989); People v. Brodack,
       296 Ill. App. 3d 71 (1998). A passenger, on the other hand, submits to the show of authority
       by remaining in the vehicle. As the Supreme Court explained in Brendlin:
           “[W]hat may amount to submission depends on what a person was doing before the show
           of authority: a fleeing man is not seized until he is physically over-powered, but one
           sitting in a chair may submit to authority by not getting up to run away. Here, Brendlin
           had no effective way to signal submission while the car was still moving on the roadway,
           but once it came to a stop he could, and apparently did, submit by staying inside.”
           Brendlin, 551 U.S. at 262.
¶ 15       Unlike the defendant in Brendlin, defendant here did not submit to the officers’ show of
       authority by remaining in the vehicle; instead he chose to flee. As a result, defendant was not
       seized during the traffic stop.
¶ 16       The officers’ eventual arrest of defendant was supported by probable cause. Defendant’s
       unprovoked flight from the traffic stop raised the officers’ suspicion and justified their
       pursuit of defendant. See People v. Thomas, 198 Ill. 2d 103 (2001). Defendant’s flight and
       discharge of a firearm established probable cause for defendant’s arrest. Therefore,


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       defendant’s eventual seizure and arrest were reasonable under the fourth amendment.
¶ 17       Because there was no unreasonable seizure, defendant’s motion to suppress would not
       have been successful. Accordingly, trial counsel’s decision not to file the motion to suppress
       was not deficient.

¶ 18                                   CONCLUSION
¶ 19       For the foregoing reasons, the judgment of the Rock Island County circuit court is
       affirmed.

¶ 20      Affirmed.




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