                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Henderson, 2012 IL App (1st) 101494




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      CARL HENDERSON, Defendant-Appellant.



District & No.               First District, Third Division
                             Docket No. 1-10-1494


Filed                        February 15, 2012


Held                         The firearm defendant dropped when he fled from the police after the car
(Note: This syllabus         in which he was a passenger was stopped on the basis of information
constitutes no part of       provided by an anonymous citizen was not the fruit of an illegal seizure,
the opinion of the court     since defendant was not “seized” at the time the weapon fell to the
but has been prepared        ground and any motion to suppress that defendant’s attorney could have
by the Reporter of           filed on the ground that the weapon was obtained in violation of
Decisions for the            defendant’s fourth amendment rights would have been futile; therefore,
convenience of the           defendant’s contention of ineffective assistance of counsel was rejected
reader.)
                             and his conviction for aggravated unlawful use of a weapon was upheld.


Decision Under               Appeal from the Circuit Court of Cook County, No. 09-CR-17149; the
Review                       Hon. Stanley Sacks, Judge, presiding.



Judgment                     Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Brian Koch, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Yvette
                           Loizon, and Tobara S. Richardson, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE MURPHY delivered the judgment of the court, with opinion.
                           Presiding Justice Steele and Justice Salone concurred in the judgment and
                           opinion.



                                              OPINION

¶1           After a bench trial, defendant Carl Henderson was found guilty of aggravated unlawful
        use of a weapon and sentenced to eight years in prison. On appeal, defendant contends that
        he was denied effective assistance of counsel because counsel did not file a motion to
        suppress when there was a lack of a reasonable suspicion for the initial stop of the car in
        which defendant was a passenger. We affirm.
¶2           At trial, Officer Robert Staken testified that on the afternoon of September 8, 2009, he
        was on patrol with his partner, Officer Brophy, when they spoke to an anonymous citizen.
        This citizen, an African-American man in his twenties, told them about a tan, four-door
        Lincoln with three passengers, which contained a gun. At trial, Staken indicated that he did
        not remember what the man was wearing, his height, or whether the man had facial hair.
¶3           Approximately five minutes later, the officers saw a four-door tan Lincoln with three
        passengers and curbed the vehicle. As the officers approached the vehicle, the driver got out
        and began walking toward them. This man was ordered back to the vehicle. There, the
        officers handcuffed the driver and a passenger. Staken then ordered defendant, who was
        sitting in the backseat, out of the car. Defendant exited from the driver’s side of the vehicle,
        and, as he was being “passed” to Staken by Brophy, took off running. As defendant ran away,
        an object fell to the ground. Once the object was on the ground, Staken realized that it was
        a handgun.
¶4           Staken alerted Brophy that defendant had dropped a gun, then got into the squad car and
        chased defendant. Eventually, defendant fell to the ground. At that point, Staken exited the
        car and handcuffed defendant.
¶5           Officer Matthew Brophy testified consistently with Staken regarding the details of the
        conversation with the anonymous citizen. Although Brophy did not recall what the man was
        wearing, he did remember that the man was of average height. Brophy’s testimony was also
        consistent with that of Staken regarding the stop of the Lincoln. After defendant exited the
        car from the driver’s side, Brophy then handed defendant over to Staken and returned to the

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       other two men. At that point, defendant began to run away. Brophy later recovered a .22-
       caliber handgun from the ground approximately two feet away from the Lincoln.
¶6          Ultimately, the trial court found defendant guilty of aggravated unlawful use of a weapon
       and sentenced him to eight years in prison.
¶7          On appeal, defendant contends that counsel’s failure to file a motion to suppress
       constituted ineffective assistance of counsel because the officers’ initial seizure of the
       Lincoln was not based on either reasonable suspicion or probable cause. Consequently, he
       argues that the gun dropped during his subsequent flight must be suppressed as the fruit of
       an illegal search.
¶8          To show that counsel was ineffective, a defendant must demonstrate both that counsel’s
       performance was deficient and that as a result he was prejudiced. People v. Bailey, 232 Ill.
       2d 285, 289 (2009) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In order to
       succeed on an ineffective assistance of counsel claim, a defendant must overcome the
       presumption that the challenged conduct might be considered sound trial strategy under the
       circumstances. People v. Snowden, 2011 IL App (1st) 092117, ¶ 70. The decision whether
       to file a motion to suppress is generally considered a matter of trial strategy that will typically
       not support a claim of ineffective assistance of counsel. Snowden, 2011 IL App (1st) 092117,
       ¶ 70. In order for a defendant to establish that he was prejudiced by counsel’s failure to file
       a motion to suppress, he must show a reasonable probability that the motion would have been
       granted and that the outcome of the trial would have been different if the evidence at issue
       had been suppressed. People v. Patterson, 217 Ill. 2d 407, 438 (2005). An attorney’s decision
       not to file a motion to suppress will not be grounds to find incompetent representation when
       the motion would have been futile. Patterson, 217 Ill. 2d at 438.
¶9          Here, defendant contends that his rights under the Illinois and United States Constitutions
       were violated when he was illegally seized, and, consequently, the gun dropped during his
       subsequent flight must be suppressed as the fruit of that illegal seizure. Under People v.
       Rhinehart, 2011 IL App (1st) 100683, ¶¶ 14-18, the initial seizure in this case was illegal
       because it was based on an anonymous tip that was not sufficiently reliable to provide the
       officers with a reasonable suspicion that defendant was engaged in criminal activity which
       would justify a stop under Terry v. Ohio, 392 U.S. 1 (1968). However, unlike the defendant
       in Rhinehart, who did not attempt to flee when approached by officers, here, defendant was
       seized, then broke away from the officers and ran before he was seized a second time. The
       State responds that regardless of the legality of the initial stop, defendant ended that stop
       when he ran away and he cannot now seek to exclude the gun because he was not in custody,
       i.e., “seized” when he dropped it.
¶ 10        The fourth amendment to the United States Constitution protects the “right of the people
       to be secure in their persons, houses, papers, and effects, against unreasonable searches and
       seizures.” U.S. Const., amend. IV. Similarly, article I, section 6, of the Illinois Constitution
       provides that the “people shall have the right to be secure in their persons, houses, papers and
       other possessions against unreasonable searches [and] seizures.” Ill. Const. 1970, art. I, ¶ 6.
       Illinois courts interpret article I, section 6, in “limited lockstep” with the fourth amendment.
       People v. Caballes, 221 Ill. 2d 282, 313 (2006). Our supreme court has explained that the


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       limited lockstep approach is based upon the premise that the drafters of the 1970 constitution
       intended that the phrase “search and seizure” in the state constitution mean “in general, what
       the same phrase means in the federal constitution.” Caballes, 221 Ill. 2d at 314. This
       approach, as adopted and modified by our supreme court, permits the consideration of state
       tradition and values “as reflected by long-standing case precedent.” Caballes, 221 Ill. 2d at
       314.
¶ 11       In the case at bar, although defendant argues that his position on appeal rests upon the
       protections offered by both the fourth amendment and the Illinois Constitution, defendant’s
       only citation to authority is for the very general proposition that the Illinois Constitution of
       1970 protects a person’s right to be free from unreasonable searches and seizures. Defendant
       has failed to provide any citation to authority or argument as to how this court could interpret
       article I, section 6, in a manner contrary to the fourth amendment in this situation.
¶ 12       This court now turns to defendant’s claim that the trial court should have suppressed the
       gun dropped as defendant ran away from the police. The issue is whether defendant, at the
       time that he dropped the gun, was “seized” within the meaning of the fourth amendment. For
       the reasons that follow, we answer that question in the negative, as defendant was not seized
       until he submitted to the officer’s authority when he was handcuffed after falling.
¶ 13       In California v. Hodari D., 499 U.S. 621 (1991), the United States Supreme Court
       considered whether a court should grant a defendant’s motion to suppress evidence thrown
       away by the defendant immediately before he was arrested. In that case, two officers in an
       unmarked police car turned a corner and saw a group of youths, including the defendant,
       standing around a car. Hodari D., 499 U.S. at 622. As the police approached, the young men
       ran away and the officers gave chase. Hodari D., 499 U.S. at 622-23. An officer chased the
       defendant on foot. Hodari D., 499 U.S. at 623. When the officer was “almost upon” the
       defendant, the defendant tossed away what appeared to be a small rock, but was later
       determined to be crack cocaine. Hodari D., 499 U.S. at 623. The officer then tackled the
       defendant, handcuffed him, and radioed for assistance. Hodari D., 499 U.S. at 623.
¶ 14       In the juvenile proceedings against him, the defendant sought to have the cocaine
       suppressed. Hodari D., 499 U.S. at 623. After the motion was denied by the trial court, the
       defendant was granted relief by the California Court of Appeals, which found that the
       defendant had been seized when he saw the officer running toward him, that the seizure was
       unreasonable under the fourth amendment, and that the cocaine had to be suppressed as the
       fruit of that illegal seizure. Hodari D., 499 U.S. at 623.
¶ 15       Before the Supreme Court, the issue was whether, at the time that he dropped the
       cocaine, the defendant had been “seized” within the meaning of the fourth amendment.
       Hodari D., 499 U.S. at 623. The Supreme Court determined that the defendant had not been
       seized at the time that he dropped the cocaine because at that time he was not within the
       physical control of a police officer. See Hodari D., 499 U.S. at 624-26 (from “the founding
       to the present, the word ‘seizure’ has meant a ‘taking possession’ [citations]”). “To say that
       an arrest is effected by the slightest application of physical force, despite the arrestee’s
       escape is not to say that for Fourth Amendment purposes there is a continuing arrest during
       the period of fugitivity.” (Emphasis in original.) Hodari D., 499 U.S. at 625. Classifying a


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       seizure as a single act, the Court determined that if the officer had laid hands upon the
       defendant to arrest him, but the defendant had broken away and then thrown away the
       cocaine, “it would hardly be realistic to say that [the] disclosure had been made during the
       course of an arrest.” Hodari D., 499 U.S. at 625. The Court then noted that in that case the
       defendant was untouched by the officer at the time that he threw away the cocaine; in other
       words, no physical force had been applied to the defendant at that point. Hodari D., 499 U.S.
       at 625.
¶ 16       The Court then considered “whether, with respect to a show of authority as with respect
       to the application of physical force, a seizure occurs even though the subject does not yield”
       and determined that it did not. Hodari D., 499 U.S. at 626. When, for example, an officer
       yells “stop” at a fleeing defendant who continues to flee, that is not a seizure. Hodari D., 499
       U.S. at 626. Ultimately, an arrest requires either physical force or submission to the assertion
       of authority. Hodari D., 499 U.S. at 626.
¶ 17       The Court determined that this conclusion was consistent with public policy, as street
       pursuits place the general public at risk and compliance with a police officer’s order to stop
       must be encouraged. Hodari D., 499 U.S. at 627. As only a “few” of these orders would be
       without basis, “the responsible course [was] to comply” rather than try to determine which
       were deficient. Hodari D., 499 U.S. at 627. The Court finally noted that unlawful orders
       would not be deterred by sanctioning through the exclusionary rule those orders that are not
       obeyed; rather, it is sufficient to apply the exclusionary rule to “successful seizures.” Hodari
       D., 499 U.S. at 627.
¶ 18       Ultimately, assuming that the officer’s pursuit of the defendant in that case was a show
       of authority telling the defendant to stop, because the defendant did not stop he was not
       seized within the meaning of the fourth amendment until he was tackled. Hodari D., 499
       U.S. at 629. Consequently, the cocaine abandoned while the defendant was fleeing was not
       the fruit of a seizure, and the defendant’s motion to exclude the cocaine was properly denied.
       Hodari D., 499 U.S. at 629; see also People v. Ramirez, 244 Ill. App. 3d 136, 145 (1993)
       (relying on Hodari D. to determine that defendant was not seized when he ignored police
       officers’ instructions to stop, dropped the paper bag he was carrying, and ran 25 feet before
       he was apprehended because the defendant chose to ignore the officers’ commands to stop
       and he had not yet been touched by the officers when he abandoned the package).
¶ 19       Although some states have rejected the analysis of Hodari D. on state constitutional
       grounds, others have followed the majority’s analysis. See State v. Randolph, 74 S.W.3d 330,
       335 nn.2, 3 (Tenn. 2002) (discussing which states have expressly adopted Hodari D., and
       which have rejected it on state constitutional law grounds). In People v. Thomas, 198 Ill. 2d
       103 (2001), our supreme court relied on the reasoning of Hodari D., to find that a person is
       “seized” within the meaning of the fourth amendment when, in view of the surrounding
       circumstances, a reasonable person would believe he was not free to leave, and that person
       submits to a police order. See Thomas, 198 Ill. 2d at 111(citing California v. Hodari D., 499
       U.S. 621, 628 (1991)).
¶ 20       In that case, a police officer attempted to conduct a field interview by placing his car
       across the defendant’s path. However, the defendant turned down an alleyway and drove his


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       bicycle away at an accelerated rate. Another officer pursued the defendant, pulled alongside
       him, and instructed him to stop. Ultimately, the defendant abandoned his bicycle and began
       to run. The chase continued on foot and the defendant was eventually taken into custody for
       obstructing a police officer. A pat-down search of the defendant was then conducted and
       suspected crack cocaine was recovered. After the defendant was indicted for one count of the
       possession of a controlled substance with the intent to deliver, he moved to suppress the
       cocaine. Although the trial court granted the motion, the appellate court reversed that
       determination.
¶ 21        Our supreme court first determined that the officer wished to detain the defendant “based
       on a suspicion grounded in circumstances that fell short of warranting a stop,” and the
       officer’s actions constituted a show of authority. Thomas, 198 Ill. 2d at 110. Thus, the issue
       before the court was at what point in time the defendant was actually seized within the
       meaning of the fourth amendment as absent a seizure the fourth amendment was not
       implicated. Thomas, 198 Ill. 2d at 110-11.
¶ 22        The court determined that the defendant was not seized within the meaning of the fourth
       amendment by the attempted roadblock because the defendant chose to run rather than stop.
       Thomas, 198 Ill. 2d at 112. The defendant was seized only when physical force was applied
       after he was caught. Thomas, 198 Ill. 2d at 112. Although officers “ ‘may well convey a
       reasonable feeling of restraint, *** that message does not amount to a seizure within the
       meaning of the fourth amendment until there is submission to it. A person must submit to
       a show of authority before that show of authority can constitute a seizure.’ ” (Emphasis
       omitted.) Thomas, 198 Ill. 2d at 112 (quoting People v. Thomas, 315 Ill. App. 3d 849, 857
       (2000), and citing Hodari D., 499 U.S. at 629). The court noted that had the defendant
       stopped when the officer blocked his path and submitted to the officer’s show of authority,
       “ ‘a seizure *** offensive to our constitution would have occurred,’ ” that is, an unreasonable
       seizure of the defendant’s person because the stop was made without the requisite degree of
       suspicion to support it. Thomas, 198 Ill. 2d at 112 (quoting Thomas, 315 Ill. App. 3d at 857).
       However, the officer’s attempt to make an unlawful stop did not implicate the fourth
       amendment because the defendant prevented the stop by running away. Thomas, 198 Ill. 2d
       at 112. The court agreed with the appellate court’s determination that the defendant’s
       ultimate stop and detention was not an unreasonable seizure because the defendant’s flight
       turned the officer’s ungrounded suspicion into a suspicion that justified the defendant’s
       detention. Thomas, 198 Ill. 2d at 112-13 (citing Illinois v Wardlow, 528 U.S. 119, 124-25
       (2000) (unprovoked flight when faced with a potential encounter with the police may raise
       enough suspicion to justify the ensuing pursuit and investigatory stop)).
¶ 23        In the case at bar, defendant was not seized, within the meaning of the fourth amendment,
       at the time that the gun fell to the ground because he chose not to submit to the officers’
       show of authority, i.e., he chose to run away and the gun fell to the ground after he had
       broken away and begun to run.
¶ 24        People v. Keys, 375 Ill. App. 3d 459 (2007), a factually similar case, is instructive. In that
       case, the defendant was a passenger in a vehicle driven by a man known by police as a drug
       user. Officers followed the car and, ultimately, the defendant and the other passengers
       voluntarily exited the vehicle. After determining the defendant’s name and that he did not

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       have any outstanding warrants, an officer attempted to conduct a pat-down search of the
       defendant. Although the defendant began to comply, he then broke free and ran away. The
       officer lost sight of the defendant for a few seconds before ultimately taking him into
       custody. When the officer later went to the area where he had lost sight of the defendant, he
       recovered three bags containing heroin. The trial court subsequently denied the defendant’s
       motion to suppress these narcotics. On appeal, the defendant argued that the motion to
       suppress should have been granted because he was unlawfully seized and searched by the
       police.
¶ 25        The appellate court focused its analysis on whether the defendant was seized, within the
       meaning of the fourth amendment, at the time that he dropped the items sought to be
       suppressed. The court highlighted the Supreme Court’s discussion in California v. Hodari
       D., 499 U.S. 621, 625 (1991), of the status of contraband that is discarded after a defendant
       has broken away from a police officer’s hold. See Keys, 375 Ill. App. 3d at 462 (if the officer
       had laid hands upon the defendant, but the defendant had then broken away and thereafter
       cast away the contraband, “ ‘it would hardly be realistic to say that [the] disclosure had been
       made during the course of an arrest’ ” (quoting Hodari D., 499 U.S. at 625)). The court then
       applied the Supreme Court’s reasoning to the facts of that case, finding it “unrealistic” to say
       that the defendant had abandoned the drugs at issue during his seizure. Keys, 375 Ill. App.
       3d at 462. There, the drugs the defendant sought to suppress were not discovered by the
       police during the initial seizure; rather, they were found because the defendant abandoned
       them after he ended the initial seizure by running away from the police. Keys, 375 Ill. App.
       3d at 464.
¶ 26        Consequently, because the defendant ended the initial seizure by running away before
       abandoning the drugs it was unnecessary for the court to determine whether the initial seizure
       was in fact lawful, and the trial court properly denied the defendant’s motion to suppress
       because the defendant was not seized within the meaning of the fourth amendment at the
       time that he abandoned the drugs. Keys, 375 Ill. App. 3d at 464. See also People v. Morris,
       209 Ill. 2d 137, 155-56 (2004), overruled in part by People v. Pitman, 211 Ill. 2d 502, 513
       (2004) (relying on Hodari D., to determine that because the defendant did not submit to the
       officers’ show of authority and requests to halt, he was not seized until an officer pulled the
       defendant from a pile of debris and placed the defendant in handcuffs, and because this
       seizure occurred after the defendant had abandoned certain contraband along the chase route,
       that contraband could not have been the fruit of an illegal arrest).
¶ 27        Similarly, here, the gun defendant seeks to suppress was not discovered by the police
       during the initial seizure of the Lincoln; rather, it was discovered after it fell as defendant
       was fleeing. Keys, 375 Ill. App. 3d at 464. In other words, defendant was not seized within
       the meaning of the fourth amendment at the time that the gun fell to the ground. Keys, 375
       Ill. App. 3d at 464; Hodari D., 499 U.S. at 624-26. Defendant was not seized, within the
       meaning of the fourth amendment, until he was later handcuffed by a police officer. As in
       Hodari, the contraband was not recovered while defendant was seized because it was cast
       away after defendant broke away from the officers and began to run. See Hodari, 499 U.S.
       at 625 (if the officer had laid hands upon the defendant to arrest him, but the defendant had
       broken away and then cast away the contraband, it would not be “realistic” to say that the

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       disclosure had been made during the course of an arrest, as a seizure is an act rather than a
       continuous fact). Thus, the gun cannot be the fruit of an illegal seizure and the trial court
       properly denied defendant’s motion to suppress.
¶ 28        Here, as defendant was not “seized” at the time that the gun fell to the ground the filing
       of a motion to suppress would have been futile. Patterson, 217 Ill. 2d at 438. Because any
       motion to suppress the gun on the grounds that it was obtained in violation of the fourth
       amendment would have failed, defendant’s counsel’s decision not to file such a motion on
       constitutional grounds was not deficient (Patterson, 217 Ill. 2d at 438), and defendant’s
       claim of ineffective assistance of counsel must fail. See People v. Edwards, 195 Ill. 2d 142,
       163 (2001) (failure to satisfy either prong of the Strickland test defeats a claim of ineffective
       assistance).
¶ 29        Defendant acknowledges the holding of Keys, but urges this court not to follow it, as the
       decision is nonbinding authority from a different appellate district. See People v. Caban, 318
       Ill. App. 3d 1082, 1086 (2001). While it is certainly true that the opinion of one district or
       panel of the appellate court is not binding on other districts or panels (O’Casek v. Children’s
       Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008)), this court may follow the
       reasoning of a decision in another district when, as in the instant case, the facts are similar
       and the court’s reasoning is persuasive.
¶ 30        For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

¶ 31       Affirmed.




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