                                Illinois Official Reports

                                       Appellate Court



                         People v. Kornegay, 2014 IL App (1st) 122573




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



District & No.            First District, Fifth Division
                          Docket No. 1-12-2573


Filed                     May 23, 2014



Held                       In a prosecution for unlawful use of a weapon by a felon and two
(Note: This syllabus counts of unlawful possession of heroin where the two possession
constitutes no part of the counts were merged under the one-act, one-crime doctrine and then
opinion of the court but the trial court sua sponte merged the remaining possession count with
has been prepared by the defendant’s conviction for the weapon offense, the appellate court
Reporter of Decisions rejected defendant’s contention that his counsel was ineffective in
for the convenience of failing to move to quash the search warrant and suppress evidence,
the reader.)               affirmed the conviction for unlawful use of a weapon by a felon,
                           reinstated the conviction for unlawful possession of heroin, sentenced
                           defendant to three years’ imprisonment to be served concurrently with
                           the five-year sentence for possession of heroin, and adjusted the fines,
                           fees and costs imposed to correct various errors.



Decision Under            Appeal from the Circuit Court of Cook County, No. 11-CR-19251; the
Review                    Hon. Michael Brown, Judge, presiding.



Judgment                  Affirmed as modified; fines, fees and costs order corrected.
     Counsel on               Michael J. Pelletier and Bryon M. Reina, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Annette Collins, and Veronica Calderon Malavia, Assistant State’s
                              Attorneys, of counsel), for the People.




     Panel                    JUSTICE TAYLOR delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Gordon and Justice Palmer concurred in the
                              judgment and opinion.




                                               OPINION

¶1          Defendant, Sidney Kornegay, was found guilty of unlawful use of a weapon by a felon
       and two counts of simple possession of heroin, which were merged under the one-act,
       one-crime doctrine. On appeal, defendant contends his counsel was ineffective for failing to
       file a motion to quash the search warrant and suppress evidence. Defendant also challenges
       fees he was assessed and contends he should receive a $5-per-day credit against his fines. We
       affirm the judgment and correct the fines, fees and costs order.

¶2                                          BACKGROUND
¶3         Defendant was arrested on November 4, 2011, after the police executed a search warrant
       for the basement apartment at 1254 North Lockwood Avenue, which was the residence of
       defendant and his girlfriend, Catoya Robinson. The police recovered a firearm and two
       straws, each containing a small bag of heroin. The State charged defendant with one count of
       unlawful use of a weapon by a felon in violation of section 24-1.1(a) of the Criminal Code of
       1961 (720 ILCS 5/24-1.1(a) (West 2010)), count I, and two counts of possession of less than
       one gram of a controlled substance with the intent to deliver, in violation of section 401(d) of
       the Criminal Code of 1961 (720 ILCS 570/401(d) (West 2010)), counts II and III.
¶4         Prior to the search, on November 4, 2011, Chicago police officer Lazaro Altamirano and
       J Doe, a private citizen, appeared before the circuit court of Cook County and subscribed and
       swore to a complaint for a search warrant, seeking to search defendant and his residence. In
       the complaint, Officer Altamirano averred:
                   “I, P.O. Lazaro Altamirano #2722, have been an officer for the City of Chicago
               for the past 8 years and am currently assigned to the Narcotics Section of the
               Organized Crime Division. I have made hundreds of arrests for narcotics related
               violations, many that have led to felony convictions. On 03 November 2011, I had a
               conversation with a citizen that I will now refer to as J Doe concerning narcotics sales
               going on at the location of 1254 N. Lockwood, Chicago, IL., Cook County. I have not
            included each and every fact known to me concerning this investigation. I have only
            included the facts that I believe are necessary to establish probable cause.
                 J Doe related to me that within the last 48 hours J Doe went to the basement
            located at 1254 N. Lockwood to purchase ten bags of cannabis from a male black J
            Doe knows as ‘Sidney’. J Doe arrived at 1254 N. Lockwood and entered the front
            common door of 1254 N. Lockwood. J Doe approached the door leading to the
            basement residence and knocked on that door. After a short time the door opened and
            ‘Sidney’ asked J Doe what J Doe wanted. J Doe stated to ‘Sidney’ that J Doe wanted
            to pick up ten bags of ‘dro’. ‘Dro’ being known to J Doe and I as street terminology
            for packaged cannabis for sale. ‘Sidney’ then told J Doe to wait by the door and after
            a short while ‘Sidney’ returned holding a clear plastic bag that contained large
            amounts of Ziploc bags each containing suspect cannabis. ‘Sidney’ then tendered J
            Doe ten Ziploc bags each containing suspect cannabis and in exchange J Doe
            tendered ‘Sidney’ $100.00 United State currency. J Doe related to me that as J Doe
            left the residence J Doe observed ‘Sidney’ to still be in possession of that plastic bag
            and there was still a large number of Ziploc bags each of which contained suspect
            cannabis. J Doe related to me that those Ziploc bags were identical to the ten ‘Sidney’
            tendered to J Doe. After the above transaction with J Doe, ‘Sidney’ then re-entered
            1254 N. Lockwood.
                 J Doe related to me that J Doe relocated to an undisclosed location where J Doe
            smoked some of the ‘dro’ that J Doe purchased from ‘Sidney’. J Doe stated to me that
            J Doe received the same euphoric sensation from smoking that ‘dro’ as J Doe has
            from smoking ‘dro’ on previous occasions. J Doe related to me that J Doe has
            purchased cannabis from ‘Sidney’ on a regular basis for the last month and that
            ‘Sidney’ has never denied J Doe cannabis. J Doe related to me that J Doe has been
            smoking cannabis for the last three years.
                 J Doe was taken past 1254 N. Lockwood, where J Doe identified that as the
            residence where J Doe met with ‘Sidney’ and purchased ten bags of cannabis from
            within the last 48 hours and on previous occasions. J Doe then pointed at the windows
            located in front of the basement apartment and stated that this is where ‘Sidney’ lives.
            A picture was retrieved utilizing Chicago CLEAR data base system of a male black
            named KORNEGAY, Sidney I.R. #1714551. KORNEGAY, Sidney is currently
            paroled to the basement apartment of 1254 N. Lockwood. That picture was shown to
            J Doe and J Doe then positively identified KORNEGAY, Sidney as the male black
            that sold J Doe ten bags of cannabis within the last 48 hours. Based upon this
            information, this officer respectfully requests that a search warrant be issued for
            KORNEGAY, Sidney, a male black, D.O.B. 17 Dec. 1983, 5’06”, 170 Lbs., brown
            eyes, I.R. #1714551, and the location of 1254 N. Lockwood, basement apartment of a
            two unit apartment building, Chicago, IL., Cook County.
                 I Police Officer Lazaro Altamirano swear that J Doe appeared before the
            undersigned judge and was available for any questions and swore to the contents of
            this complaint. J Doe’s criminal history, including possible pending investigations, if
            any, have been presented and made available to the undersigned judge.”
¶5      Upon the presentation of the facts in the complaint and appearance of Officer Altamirano
     and J Doe, the circuit court judge found that the complaint stated facts sufficient to show
     probable cause and issued a warrant to search “KORNEGAY, Sidney, a male black, D.O.B/
       17 Dec 1983, 5’06”, 170 lbs, brown eyes, I.R. #1714551” and “the premises of 1254 N.
       Lockwood, basement apartment of a two unit apartment building, Chicago IL., Cook
       County.” The search warrant further directed the seizure of instruments, articles, and things
       which had been used in the commission of, or which constitute evidence of, the offense of
       unlawful possession of cannabis, including any cannabis, any documents showing residency,
       any paraphernalia used in the weighting, cutting or mixing of illegal drugs, and any money or
       any records detailing illegal drug transactions.
¶6          At defendant’s bench trial on July 6, 2013, the State presented one witness, Officer
       Altamirano. He testified that on November 4, 2011, around 2 p.m. he was part of a team that
       was executing a search warrant at 1254 North Lockwood Avenue. Officer Altamirano
       entered through an open front door and proceeded to the basement apartment, where
       defendant was coming up the stairs. Officer Altamairano then informed defendant that they
       were executing a search warrant for the basement apartment and he was named in the search
       warrant. Defendant was then handcuffed and put in a chair in the living room.
¶7          Officer Altamirano further testified that items subject to the warrant were seized. In the
       kitchen, the officers found two straws each containing a Ziploc bag with suspect heroin
       inside. They also found a coffee grinder in a box inside a kitchen closet which contained a
       powdery substance. Officer Altamirano explained that, based on his experience, he believed
       the substances to be heroin. He also found a bundle of money containing $65. Another
       officer found an unloaded semiautomatic Beretta with the serial numbers defaced. Finally, he
       testified he found a debit card with the name Sidney Kornegay in the bedroom and a ComEd
       bill addressed to Sidney Kornegay at 1254 North Lockwood.
¶8          Officer Altamirano testified as to statements made by defendant during the execution of
       the search warrant. While Officer Altamirano was in the kitchen securing the firearm in a
       box, defendant, who was still sitting in the living room, stated that the gun had been left by a
       friend. Once defendant and the recovered items were transported to the Homan Square police
       station for processing, he was read his Miranda rights. In an interview room with Officer
       Altamirano and Officer Pulaski, defendant stated that he knew he should not have the gun,
       since he was a convicted felon.
¶9          During cross-examination, Officer Altamirano testified that he conducted a surveillance
       of the apartment building before executing the search warrant. He saw some individuals enter
       and exit the building. He did not stop these individuals and they did not have anything in
       their hands that looked like narcotics.
¶ 10        The parties stipulated to the fact that a forensic scientist would testify that there were 0.4
       grams of heroin in the two Ziploc bags and that the powder in the coffee grinder was also
       heroin. After the State’s case in chief defendant moved for a directed verdict. The trial court
       granted a directed verdict as to counts II and III with respect to the intent to deliver. The
       court explained that what remained was straight possession for counts II and III.
¶ 11        Defendant presented one witness, Catoya Robinson. She testified that she was
       defendant’s girlfriend and was present when the warrant was executed. She testified that they
       had been living there for four months, and prior to that, Sidney’s father, also named Sidney
       Kornegay, had lived there. She testified that defendant’s father was paying the light bill. She
       testified that on November 4, 2011, a police officer entered the apartment, searched the
       bedroom and then let in more officers through the back door. Robinson testified she did not
       have a firearm in the bedroom, but one was in the laundry facility. She explained that her
       apartment was in front of the basement and the laundry facility was in the back. Robinson
       testified she had an unloaded handgun which she did not tell defendant about, and she
       testified that an officer who was in the bedroom said he found a gun. According to Robinson,
       he came out with a two-foot-long blue and green water gun. She explained that she had two
       water guns in her bedroom. Robinson further testified she did not hear defendant make any
       statements regarding the gun.
¶ 12       During cross-examination, Robinson testified that she and defendant lived with her two
       children. She explained she had the gun because in 2008, she was stalked by a lady who
       stabbed her and her boyfriend. She again said she never told defendant about the gun and had
       no bullets for it. Robinson further testified that she did not know whose heroin was in the
       kitchen.
¶ 13       After closing argument, the trial court found defendant guilty of unlawful use of a
       weapon by a felon and two counts of simple possession of heroin. Defendant subsequently
       filed a motion for a new trial, arguing that the findings of guilt on the possession of heroin
       counts should be merged under the one-act, one-crime doctrine. The trial court agreed and
       merged the two possession counts, vacating the finding of guilt under count III. Additionally,
       the trial court sua sponte merged the remaining count of possession of heroin with the
       finding of guilty on the unlawful use of a weapon by a felon count. After a sentencing
       hearing on August 7, 2012, the defendant was given a five-year prison sentence for unlawful
       use of a weapon by a felon. The trial court also imposed certain enumerated fines and fees
       totaling $600. It is from this order that defendant now appeals.

¶ 14                                           ANALYSIS
¶ 15        On appeal, defendant argues that he received ineffective assistance of counsel because his
       trial attorney did not file a motion to quash the search warrant and suppress evidence. He
       contends that the search warrant was issued without probable cause. Defendant maintains
       that the tip provided to police was not reliable enough to provide a reasonable suspicion or
       probable cause to support the warrant. Thus, defendant asserts that had his counsel filed a
       motion to quash the search warrant and suppress evidence, he most likely would have
       succeeded on the motion and the outcome of his trial would have been different.
¶ 16        The State responds that defendant’s counsel was not ineffective because the police had
       probable cause to support the issuance of the search warrant. The State further argues that
       there was probable cause to search defendant’s residence based on the reliability of the tip
       provided by Officer Altamirano’s informant and therefore probable cause supports the search
       warrant. In the alternative, even if we find that probable cause was lacking, the State asserts
       that the evidence was also properly seized under the good-faith exception to the exclusionary
       doctrine. Additionally, the State maintains that the fact that the search warrant identified
       defendant as a parolee constituted fourth amendment justification for the search of defendant
       and his residence. The State posits that because defendant’s rights were not violated, filing a
       motion to quash the search warrant and suppress evidence would have been futile and
       defendant’s counsel was not ineffective for failing to do so.
¶ 17        A claim of ineffective assistance of counsel is evaluated under the two-prong test set
       forth in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Ramsey, 239 Ill. 2d
       342, 433 (2010); People v. Albanese, 104 Ill. 2d 504, 525 (1984). Under this test, a defendant
       must demonstrate that counsel’s performance fell below an objective standard of
       reasonableness and a reasonable probability exists that, but for counsel’s unprofessional
       errors, the result of the proceeding would have been different. Ramsey, 239 Ill. 2d at 433. A
       defendant’s failure to establish either prong of the Strickland test precludes a finding of
       ineffective assistance of counsel. People v. Patterson, 217 Ill. 2d 407, 438 (2005).
¶ 18        Defendant argues that in order to prevail on his ineffectiveness claim, he need not show
       that the motion to quash the search warrant would have been granted; instead, he must show
       only that a reasonable probability exists that the motion would have been granted and that the
       outcome of his trial would have been different.
¶ 19        In a line of cases beginning with People v. Orange, 168 Ill. 2d 138, 153 (1995), this court
       has stated that, in order to establish prejudice where an ineffectiveness claim is based on the
       failure to file a suppression motion, the defendant must show only that a reasonable
       probability exists both that the motion would have been granted and that the result of the trial
       would have been different had the evidence been suppressed. However, later opinions have
       articulated a more stringent standard, stating that defendant must establish that the unargued
       suppression motion was “meritorious,” i.e., it would have succeeded, and that a reasonable
       probability exists that the trial outcome would have been different without the challenged
       evidence. See, e.g., People v. Harris, 182 Ill. 2d 114, 146 (1998); People v. Bailey, 232 Ill. 2d
       285, 289 (2009). Indeed, in People v. Henderson, 2013 IL 114040, ¶ 12, our supreme court
       explicitly disavowed Orange, and clarified that where an ineffectiveness claim is based on
       counsel’s failure to file a suppression motion, in order to establish prejudice under
       Strickland, the defendant must demonstrate that the unargued suppression motion is
       meritorious and that at least a reasonable probability exists that the trial outcome would have
       been different had the evidence been suppressed. The Henderson standard controls in the
       instant case.
¶ 20        We therefore turn to consider whether the unargued suppression motion in this case was
       meritorious. Whether or not a motion to quash a search warrant and suppress evidence should
       be filed in a criminal case is a matter of trial tactics and has little bearing on competency of
       counsel. People v. Peterson, 248 Ill. App. 3d 28, 38 (1993); People v. Atkins, 161 Ill. App. 3d
       600, 609 (1987). A reviewing court will not extend its inquiry into areas involving the
       exercise of judgment, discretion, trial tactics or strategy. Id. The decision of whether or not to
       file a motion to suppress is best left to trial counsel’s discretion. Id.; People v. Bryant, 128 Ill.
       2d 448, 458 (1989).
¶ 21        Our task on review is simply to ensure that the trial court had a substantial basis for
       concluding that probable cause existed. People v. Wead, 363 Ill. App. 3d 121, 135 (2005);
       Illinois v. Gates, 462 U.S. 213, 238-39 (1983); People v. Tisler, 103 Ill. 2d 226, 248 (1984).
       The trial court, when making a probable cause determination, is to apply standards at least as
       stringent as those that guide a magistrate in deciding whether to issue a warrant. Id. at 236;
       People v. Williams, 147 Ill. 2d 173, 209 (1991) (citing People v. Adams, 131 Ill. 2d 387, 398
       (1989), and Tisler, 103 Ill. 2d at 236). Whether the necessary probable cause exists is
       governed not by technical legal rules, but rather by commonsense considerations that are
       factual and practical. Wead, 363 Ill. App. 3d at 136 (citing People v. Mitchell, 45 Ill. 2d 148,
       153-54 (1970)).
¶ 22        Lastly, perhaps the Illinois Supreme Court said it best when the court wrote the
       following:
                    “ ‘Although in a particular case it may not be easy to determine when an affidavit
                demonstrates the existence of probable cause, the resolution of doubtful or marginal
                cases in this area should be largely determined by the preference to be accorded to
               warrants.’ [Citation.] Read in a common-sense and realistic fashion, the affidavits
               contained sufficient specificity in light of the totality of the circumstances to justify
               the issuance of the search warrants. There was a substantial basis for the magistrate’s
               finding of probable cause. [Citation.]” People v. Stewart, 104 Ill. 2d 463, 477 (1984)
               (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).
¶ 23       In construing an affidavit for a search warrant, this court must not substitute its judgment
       for that of the magistrate but, rather, must decide whether the magistrate had a substantial
       basis to conclude that probable cause existed. People v. Sutherland, 223 Ill. 2d 187, 204
       (2006). The United States Supreme Court has indicated that “after-the-fact scrutiny by [the]
       courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois
       v. Gates, 462 U.S. 213, 236 (1983).
¶ 24       Defendant argues that the affidavit for the search warrant relied on statements of an
       informant whose reliability was unestablished and, furthermore, the warrant was based on
       uncorroborated information. First, defendant points out that the informant’s account provided
       the police with only vague details about the drug sale and that Officer Altamirano
       corroborated only one easily verifiable fact: the existence of the house at which the informant
       said the drug sale took place. Defendant further points out that as to the reliability of the
       unnamed informant in this case, Officer Altamirano received the tip from a single unnamed
       source with whom the officer had no prior experience.
¶ 25       The State responds that the facts in the complaint were unquestionably sufficient to
       establish probable cause to believe that defendant committed an offense in his residence and
       that a search of his person and residence would uncover evidence of that offense. In the
       complaint, the affiant, Officer Altamirano, stated that on November 3, 2011, he had a
       conversation with J Doe, a private citizen, concerning narcotics sales occurring at 1254 North
       Lockwood, Chicago. J Doe revealed that within the last 48 hours, he had gone to the
       basement apartment at that location to purchase 10 bags of cannabis from “Sidney.” J Doe
       entered the building’s front common door, approached the door leading to the basement
       residence and knocked. After a short time, “Sidney” opened the door and asked J Doe what
       he wanted. J Doe responded that he wanted to pick up 10 bags of “dro,” which was street
       terminology for packaged cannabis for sale. “Sidney” then left and returned holding a clear
       plastic bag that contained large amounts of Ziploc bags, and each of the Ziploc bags
       contained suspected cannabis. “Sidney” then gave J Doe 10 Ziploc bags, each containing
       suspected cannabis, in exchange for $100. J Doe then left, went to another location and
       smoked some of the “dro” purchased. J Doe revealed that he got the same euphoric sensation
       from smoking that “dro” as he had from smoking “dro” on previous occasions. J Doe
       admitted that he had purchased cannabis from “Sidney” on a regular basis for the last month
       and that “Sidney” never denied his requests for cannabis. J Doe also admitted that he had
       been smoking cannabis for the last three years.
¶ 26       The State further argued that the officer corroborated the information by taking the
       informant past the address 1254 North Lockwood, which the informant identified as the
       basement residence where he met with Sidney and purchased cannabis on several occasions.
       The officer also retrieved a picture utilizing Chicago CLEAR database of a black male
       named “Kornegay, Sidney,” who was currently paroled to the basement apartment of 1254
       North Lockwood. The picture was shown to J Doe, who identified the defendant as the one
       who had sold him cannabis. The State further notes that the officer swore in the complaint
       that the informant appeared before the magistrate and was available for any questions. Where
       the informant himself is the affiant to the complaint and he recites facts that he personally
       observed, a showing of the reliability of the informant is not constitutionally required. People
       v. Skinner, 136 Ill. App. 3d 119, 121 (1985); see People v. O’Neal, 40 Ill. App. 3d 448, 450
       (1976). When the informant personally appears before the issuing court, such corroboration
       is unnecessary. People v. Lyons, 373 Ill. App. 3d 1124, 1128-29 (2007). The informant in the
       instant case was also an affiant and appeared before the issuing judge, who was able to make
       a firsthand assessment of the informant’s credibility. In construing an affidavit for a search
       warrant, a reviewing court must not substitute its judgment for that of the issuing judge but,
       rather, only decides whether the issuing judge had a substantial basis to conclude that
       probable cause existed. People v. Sutherland, 223 Ill. 2d 187, 219 (2006).
¶ 27        Defendant, nevertheless, argues that a motion to quash the search warrant would have
       been successful because the complaint failed to establish the informant’s reliability. He
       maintains that the officer did not provide any information about his relationship with the
       informant nor did he indicate that earlier information provided by the informant to law
       enforcement officials had ever led to arrests, indictments or convictions.
¶ 28        In support, defendant argues that the United States Supreme Court has recognized that
       probable cause cannot be established based on an uncorroborated tip from an unidentified
       informant. In Florida v. J.L., 529 U.S. 266 (2000), an anonymous informant called the police
       and reported that a young black male who was standing at a specific bus stop and wearing a
       plaid shirt was carrying a gun. The United States Supreme Court held that the anonymous tip,
       without more, did not even amount to reasonable suspicion of wrongdoing and, thus, was not
       sufficient to justify the officer’s stop and frisk of the defendant. Id. at 274. Applying the
       holding of J.L., the Illinois Appellate Court similarly found that an anonymous informant’s
       tip was insufficient to provide reasonable suspicion. In People v. Brown, 343 Ill. App. 3d
       617, 619 (2003), an anonymous caller informed an officer that a named subject was driving
       to the subject’s home with a shipment of drugs and that he kept a gun in his home. The
       officer arrested the defendant outside his home and a gun and narcotics were recovered from
       the defendant’s home and car. Id. at 619-20. The appellate court held that the police lacked
       reasonable suspicion to stop the defendant because, even though the tip provided the exact
       identity of the subject, it lacked the requisite indicia of reliability to justify the stop.
       Id. at 626-27.
¶ 29        The State correctly responds that J.L. and Brown are inapposite because, unlike the case
       at bar, in J.L. and Brown, the informants did not appear before a magistrate, the informants
       did not describe the basis for their knowledge, and the officers did not obtain search
       warrants. The State further argues that in J.L. and Brown the informants were truly
       anonymous, where, in the case at bar, there was nothing anonymous about the informant
       except that his identity was kept secret in the text of the search warrant. The State argues that
       it is well established that where “the informant has appeared before the issuing judge, the
       informant is under oath, and the judge has had the opportunity to personally observe the
       demeanor of the informant and assess the informant’s credibility, additional evidence relating
       to informant reliability is not necessary.” People v. Moser, 356 Ill. App. 3d 900, 909 (2005);
       see also People v. Phillips, 265 Ill. App. 3d 438, 448 (1994) (finding that corroboration of an
       informant’s allegations not needed where informant appeared before judge issuing search
       warrant).
¶ 30        Defendant argues that despite the informant’s appearance before the magistrate, no
       evidence was presented that the informant was actually questioned. However, our federal
       counterpart, the Seventh Circuit Court of Appeals, has found it sufficient that the informant
       was available for questioning before the issuance of the warrant, even if no evidence was
       presented that the informant was actually questioned. United States v. Johnson, 289 F.3d
       1034, 1037 (7th Cir. 2002).
¶ 31       In Johnson, a police officer and a confidential informant appeared in court before the
       judge who issued the search warrant. The informant had told the officer that he had observed
       the defendant manufacturing cocaine at a particular address and that the defendant told him
       he intended to sell the substance. Johnson, 289 F.3d at 1036. The officer corroborated that
       the defendant was a black male born on the date specified by the informant and also
       confirmed that a vehicle parked at the address was registered to the defendant. Johnson, 289
       F.3d at 1036. Although the informant “took an oath and signed an affidavit mirroring the
       details” in the officer’s application for the warrant, the record was “unclear” regarding
       whether, before issuing the warrant, the judge questioned the informant, whether the
       informant testified to the court or if the judge otherwise observed the informant’s demeanor.
       Johnson, 289 F.3d at 1037.
¶ 32       When the defendant in Johnson argued on appeal that the government failed to establish
       the informant’s reliability, the Seventh Circuit disagreed after examining the totality of the
       circumstances as instructed by the United States Supreme Court’s opinion in Gates. Johnson,
       289 F.3d at 1038-39. The Johnson court noted:
               “When the credibility of a [confidential informant] is at issue, our prior cases instruct
               us to consider several factors, such as the informant’s personal observations, the
               degree of detail given, independent police corroboration of the *** information, and
               whether the informant testified at the probable cause hearing. [Citations.] No single
               issue is dispositive; ‘a deficiency in one factor may be compensated for by a strong
               showing in another or by some other indication of reliability.’ [Citation.] We
               emphasize these factors as a means of examining the [informant’s] reliability and
               whether, based upon the facts provided by the [informant], a substantial basis existed
               for concluding that law enforcement officials would discover evidence of a particular
               crime in a particular place. [Citation.]” Johnson, 289 F.3d at 1038-39 (quoting United
               States v. Brack, 188 F.3d 748, 756 (7th Cir. 1999)).
¶ 33       The defendant in Johnson further contended, as does defendant here, that although the
       informant was present in court, the record did not establish that the magistrate questioned the
       informant. Johnson, 289 F.3d at 1040. While noting that “an on-the-record exchange”
       between the court and the informant would support a finding of reliability, the Seventh
       Circuit found such evidence was not required, noting that the informant’s presence and
       ability to be questioned were “themselves indicia of reliability because they eliminate some
       of the ambiguity that accompanies an unknown hearsay declarant.” Id. The court further
       noted that the informant’s presence “allows the issuing judge to confront the [informant] if
       necessary.” Id. Therefore, we do not find that the lack of an on-the-record colloquy between
       the magistrate and the informant destroys the reliability established by the informant’s
       presence. The Johnson court stated in a footnote, however, that the informant’s appearance
       before the magistrate was only one factor in the Gates “totality of the circumstances”
       analysis. Johnson, 289 F.3d at 1040 n.3.
¶ 34       The issuing magistrate’s task “ ‘is simply to make a practical, common-sense decision
       whether, given all the circumstances set forth in the affidavit before him, including the
       ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair
       probability that contraband or evidence of a crime will be found in a particular place.’ ”
       People v. Smith, 372 Ill. App. 3d 179, 184 (2007) (quoting Illinois v. Gates, 462 U.S. 213,
       238 (1983)); see also People v. McCarty, 223 Ill. 2d 109, 153 (2006).
¶ 35       Noting the factors set out in Johnson, we weigh the informant’s personal observations,
       the degree of detail offered and police corroboration of the information against the fact that
       the record does not establish that the informant testified in support of the warrant. Johnson,
       289 F.3d at 1038-39. As previously noted, no single factor is determinative, and weakness in
       one component can be offset by strength in another. The informant told Officer Altamirano
       that he bought cannabis at 1254 North Lockwood in Chicago from a person named “Sidney.”
       The informant also positively identified a picture of defendant from a police database. As in
       Johnson, the informant in the instant case also admitted using a controlled substance for the
       last three years. An admission of familiarity with illegal substances bolsters the informant’s
       reliability. See Johnson, 289 F.3d at 1039 (“by making statements against his penal interest
       the [informant] offered another indicium of reliability”); United States v. Jones, 208 F.3d
       603, 609 (7th Cir. 2000) (such statements supported informant’s reliability and credibility).
       The informant also stated he had purchased “dro” from defendant for the last month, was
       never denied “dro,” and within the last 48 hours had purchased 10 bags for $100.
¶ 36       We find that, despite the lack of proof that the informant was questioned in court, the
       informant appeared before the magistrate when the warrant was issued and, thus, was
       available for questioning. The fact that questioning may or may not have occurred does not
       undermine the magistrate’s finding that probable cause existed to issue the search warrant
       because the informant’s very presence supported his or her reliability. See Johnson, 289 F.3d
       at 1040. Taken as a whole, the evidence provided the magistrate with a substantial basis to
       conclude that probable cause existed to search 1254 North Lockwood. The record supported
       the magistrate’s finding of probable cause. Therefore, defendant’s claim does not support an
       argument that his trial counsel was ineffective for failing to file a suppression motion because
       any such motion would not have been meritorious and the omission of such a motion did not
       prejudice defendant. Smith, 372 Ill. App. 3d at 182. See Strickland, 466 U.S. at 687; People v.
       Easley, 192 Ill. 2d 307, 317 (2000) (to show ineffectiveness of counsel, a defendant must
       demonstrate both that his attorney’s performance fell below a standard of reasonableness and
       also that the error resulted in an unreliable or unfair proceeding).
¶ 37       Alternatively, even if the complaint for warrant fell short of establishing the informant’s
       reliability and therefore probable cause, the State argues that defendant suffered no prejudice
       from trial counsel’s decision not to file a motion to quash the search warrant and suppress
       evidence, because the seized evidence would still have been admissible under the good faith
       exception to the exclusionary rule. See United States v. Olson, 408 F.3d 366, 372 (7th Cir.
       2004) (the Seventh Circuit, after rejecting the defendant’s argument that the complaint for
       search warrant did not provide enough to establish probable cause, and added: “[i]n any
       event, the warrant would be saved by the good[-]faith exception”). Defendant responds that
       the good-faith exception to the exclusionary rule does not apply, since the affidavit in this
       case was “so lacking in indicia of probable cause as to render official belief in its existence
       entirely unreasonable.” (Internal quotation marks omitted.) United States v. Leon, 468 U.S.
       897, 923 (1984).
¶ 38       In Illinois v. Krull, 480 U.S. 340, 348 (1987), the United States Supreme Court noted that
       the Court had held in Leon that “the exclusionary rule should not be applied to evidence
       obtained by a police officer whose reliance on a search warrant issued by a neutral magistrate
       was objectively reasonable, even though the warrant was ultimately found to be defective.”
       In People v. Stewart, 104 Ill. 2d 463, 477 (1984), the Supreme Court of Illinois adopted the
       holding in Leon for this state, writing as follows: “Even if one assumes a want of
       particularity in the affidavits, the agents’ reasonable and good-faith belief, although a
       possibly mistaken one, that the searches were authorized under the warrants, insulated the
       searches from a motion to suppress.”
¶ 39       As this court noted in People v. Cooke, 299 Ill. App. 3d 273, 281 (1998), the Supreme
       Court in Leon listed four situations in which the good-faith exception did not apply:
               “ ‘(1) where the judge in issuing a warrant was misled by information in an affidavit
               that the affiant knew was false or would have known was false except for his reckless
               disregard of the truth [citation]; (2) where the issuing judge wholly abandoned his
               judicial role ***; (3) where the affidavit is so lacking in indicia of probable cause as
               to render official belief in its existence entirely unreasonable [citation]; and (4) where
               a warrant is so facially deficient that the executing officers cannot reasonably
               presume it to be valid [citations].’ ” Cooke, 299 Ill. App. 3d at 281 (quoting People v.
               Bohan, 158 Ill. App. 3d 811, 818 (1987)).
¶ 40       We agree with the Seventh Circuit’s characterization of the Leon good-faith exception, in
       United States v. Peck, 317 F.3d 754, 757 (7th Cir. 2003). In that case, the court first noted
       that a police officer’s decision to obtain a search warrant “is prima facie evidence that he was
       acting in good faith.” The court further explained as follows:
               “To rebut this evidence[, the defendant] must show that the magistrate simply
               rubber-stamped the warrant application, the officers were dishonest or reckless in
               preparing the affidavit, or the warrant was so lacking in probable cause that no officer
               could have relied on it.” Id.
¶ 41       The State maintains that there is no evidence that Officer Altamirano deliberately or
       recklessly disregarded defendant’s fourth amendment rights. Nor did the officer’s actions
       constitute gross negligence. The State argues that Officer Altamirano subjected his grounds
       for searching defendant and his residence to judicial scrutiny. Defendant had a severely
       curtailed expectation of privacy in his person and residence because he was on mandatory
       supervised release (formerly parole) (MSR) and on home monitoring. The State further
       argues that the suppression of evidence of crimes committed by a parolee on home
       monitoring constitutes a cost too heavy for society to endure.
¶ 42       We agree with the State. No colorable argument can be made on this record that the trial
       judge wholly abandoned his judicial role when he issued the search warrant at issue, and
       defendant does not so argue. As noted, we have already found that there was probable cause
       for the issuing of a search warrant; however, even if that were not the case, we would still
       find the fruits of the search admissible under the good-faith exception.
¶ 43       The State further argues, and we agree, that defendant had a reduced expectation of
       privacy in his home because he was a parolee who signed an MSR agreement that included a
       consent-to-search condition. Defendant argues that there is insufficient proof that he signed
       an MSR agreement. He contends that since there is no record of an MSR agreement, he has
       not submitted to a diminished standard of privacy. He maintains that because there is no
       MSR agreement in the record, there is no reason to presume that he signed one. Defendant
       further argues that his parole status appearing on the face of the complaint for the search
       warrant fails to prove that he signed an MSR agreement.
¶ 44       In Illinois, prisoners not serving a term of natural life imprisonment will eventually
       become eligible for MSR (730 ILCS 5/3-3-3(c) (West 2006)), and when eligible for MSR,
       they are presented with an agreement that sets forth the conditions of their release from the
       physical custody of the Department of Corrections (730 ILCS 5/3-3-7 (West 2006)). People
       v. Wilson, 228 Ill. 2d 35, 48 (2008). They must sign this agreement and retain a copy in order
       to secure their release from the physical custody of the Department of Corrections. 730 ILCS
       5/3-3-7(c) (West 2006); Wilson, 228 Ill. 2d at 48; see also In re Detention of Powell, 217 Ill.
       2d 123, 128 (2005) (prisoner who refused to sign his MSR agreement was kept in physical
       custody). Illinois parolees remain in the legal custody of the Department of Corrections for
       the duration of their MSR. 730 ILCS 5/3-14-2(a) (West 2006).
¶ 45       The State argues that Samson v. California, 547 U.S. 843 (2006), is persuasive. Although
       Samson involved the California parole system, we find that the MSR systems of Illinois and
       California are very much alike in operation and that Samson parallels our analysis of a search
       of an Illinois prisoner on MSR. In Samson, the Supreme Court found that the reduced
       expectation of privacy a parolee has is further diminished by his acceptance of the clear and
       unambiguous terms of the search condition contained in his parole agreement. Samson, 547
       U.S. 843. In Samson, the United States Supreme Court held that a completely suspicionless
       search of the parolee on a public street was reasonable because the parolee’s diminished
       expectation of privacy was outweighed by the State’s substantial interest in supervising
       parolees. Id. at 850, 852-53. Since Samson, many courts have held that there is no difference
       between the expectation of privacy a parolee has in his person and his residence, provided
       that the parolee has signed an agreement containing a search condition similar to defendant’s
       search condition. These cases all implement the principle set forth in Samson that “a State’s
       interests in reducing recidivism and thereby promoting reintegration and positive citizenship
       among probationers and parolees warrant privacy intrusions that would not otherwise be
       tolerated under the Fourth Amendment.” Samson, 547 U.S. at 853.
¶ 46       The State correctly notes that MSR agreements contain a broad search condition.
       Pursuant to section 3-3-7(a), in Illinois, all prisoners must sign an MSR agreement setting
       forth release conditions and every MSR agreement must include certain conditions set forth
       in section 3-3-7, including the condition that the parolee “consent to a search of his or her
       person, property, or residence.” 730 ILCS 5/3-3-7(a)(10) (West 2010). Thus, the State
       maintains, and we agree, that defendant being on mandatory supervised release and on home
       monitoring had a severely diminished expectation of privacy in his person and residence. We
       find under the circumstances in the case at bar, defendant, a convicted felon, on home
       monitoring, signed an MSR agreement and was operating under a diminished expectation of
       privacy. A prisoner who refuses to sign an MSR agreement will not be released from
       custody. See Wilson, 228 Ill. 2d at 48; see also Powell, 217 Ill. 2d at 128 (prisoner who
       refused to sign his MSR agreement was kept in custody).
¶ 47       In United States v. Lopez, 474 F.3d 1208 (9th Cir. 2007), the defendant was a parolee
       with a search condition that put him on notice that his person, property, and residence were
       subject to search at any time. Lopez, 474 F.3d at 1209. Following Samson, the Lopez court
       held that the defendant, as a parolee, did not have an expectation of privacy in his residence
       that society would recognize as legitimate. Lopez, 474 F.3d at 1213. The Lopez court held:
               “If *** a parolee has no expectation of privacy in his person, we reason that a parolee
               has no legitimate expectation of privacy in his residence either, at least when the
               parolee is present. Any other rule would diminish the protection to society given by
                the search condition of parole, permitting search at any time.” Lopez, 474 F.3d at
                1213.
¶ 48        In the instant case, we find that defendant was required to sign and accept a search
       condition requiring him to consent to a search of his person, property, or residence under his
       control. Like the defendants in Samson and Lopez, his status on MSR, coupled with the
       condition of home monitoring at 1254 North Lockwood, reduced his expectation of privacy
       in his residence to a level that society would not recognize as legitimate. Accordingly, the
       special protection normally afforded to an individual’s home does not apply to defendant.
       See Wilson, 228 Ill. 2d at 50-51.
¶ 49        Thus, under the circumstances presented in this case, there is no reasonable probability
       that a motion to quash would have been successful and therefore defendant was not
       prejudiced by his counsel’s failure to file such a motion. His ineffective assistance of counsel
       claim fails. See People v. Van De Rostyne, 63 Ill. 2d 364, 366 (1976) (the method to
       challenge the constitutionality of a defendant’s arrest is through a motion to quash and
       suppress evidence).
¶ 50        The parties raise several concluding matters. First, the State argues that the trial court’s
       decision to merge defendant’s conviction for possession of the controlled substance into his
       conviction for unlawful use of a weapon by a felon was erroneous. The State maintains that
       the judge made a finding of guilt on a lesser included offense of possession of less than one
       gram of heroin. 720 ILCS 570/402(c) (West 2010) (“Any person who violates this Section
       *** is guilty of a Class 4 felony.”). Because a conviction on a Class 4 felony carries a one- to
       three-year sentencing range (730 ILCS 5/5-4.5-45 (West 2010)), the State contends that we
       should remand for sentencing on the possession of heroin offense. Defendant agrees that the
       trial court meant to enter a finding of guilty on the possession of a controlled substance
       count. However, instead of remanding, defendant argues that we should impose a three-year
       sentence on count II, to run concurrently with his conviction on count I.
¶ 51        We agree that the judge made a finding of guilty on the possession count. We therefore
       reinstate defendant’s conviction for possession of a controlled substance. See People v.
       Yaworski, 2011 IL App (2d) 090785, ¶ 10; see People v. Scott, 69 Ill. 2d 85, 87-88 (1977) (in
       an appeal by the defendant, the reviewing court may correct an erroneous trial court ruling
       that one offense merges into another and may remand for sentencing on the former offense so
       that a complete judgment will have been entered). Since the trial court did not impose a
       sentence for count II, pursuant to Illinois Supreme Court Rule 615(b)(2) we impose a
       sentence of three years’ imprisonment for possession, to be served concurrently with the
       sentence for unlawful use of a weapon by a felon and order the clerk of the circuit court to
       correct the mittimus to reflect a conviction on count II, to run concurrently with the five-year
       sentence on count I. Ill. S. Ct. R. 615(b)(2) (reviewing court may “set aside, affirm, or
       modify any or all of the proceedings subsequent to or dependent upon the judgment or order
       from which the appeal is taken”).
¶ 52        On the question of costs, the defendant contends and the State correctly concedes that it
       was improper to assess the defendant a $5 court system fee pursuant to section 5-1101(a) of
       the Counties Code (55 ILCS 5/5-1101(a) (West 2012)). The court system fee is only to be
       paid in the case of a violation of the Illinois Vehicle Code. Id. Defendant’s offenses do not
       fall into this category, and so we vacate this fee.
¶ 53        Defendant also challenges the assessment of a court services fee of $25 pursuant to
       section 5-1103 of the Counties Code (55 ILCS 5/5-1103 (West 2012)). Defendant argues that
       the court services fee is only applicable to one of the several offenses enumerated in section
       5-1103. 55 ILCS 5/5-1103 (West 2012). The State maintains that the $25 court services fee
       was properly imposed because the statute authorizing the fee applies to all criminal offenses.
       We agree with the State. Section 5-1103 of the Counties Code expressly provides that the
       purpose of this fee is to defray “court security expenses incurred by the sheriff in providing
       court services.” 55 ILCS 5/5-1103 (West 2012). See People v. Williams, 2011 IL App (1st)
       091667-B; People v. Adair, 406 Ill. App. 3d 133, 145 (2010) (based on the encompassing
       language of the statute and its clear purpose of defraying court security expenses, court
       rejected the argument that the failure to list the offenses the defendant committed meant that
       he could not be required to defray the expenses incurred by the sheriff for his court
       proceedings). Thus, we find the court services fee was properly assessed following the
       defendant’s convictions.
¶ 54       Finally, defendant correctly asserts that he is entitled to a $5-per-day credit for each day
       spent in custody before he was sentenced. 725 ILCS 5/110-14 (West 2010). Defendant was
       eligible for 278 days of presentence custody credit for his offenses in this case. While a
       defendant is allowed a credit of $5 for each day he is incarcerated, the amount cannot exceed
       the amount of the fines. 725 ILCS 5/110-14(a) (West 2010). Defendant’s 278 days in
       presentence custody are more than sufficient to offset the $80 in fines he was assessed.
       Defendant maintains and the State agrees that the court miscalculated the total fees imposed
       on defendant. We adjust the total fees from the imposed $600 to the corrected $500.

¶ 55                                        CONCLUSION
¶ 56       For the foregoing reasons, we modify the judgment of the circuit court by reinstating
       defendant’s conviction of possession and sentencing defendant to three years’ imprisonment,
       to be served concurrently with his sentence for unlawful use of a weapon by a felon. We
       affirm the judgment of the circuit court with regard to count I, unlawful use of a weapon by a
       felon. We affirm the imposition of the $25 court services fee, vacate the $5 court system fee,
       adjust the total fines imposed by the trial court to $500 and reduce defendant’s total
       assessment to $415.

¶ 57      Affirmed as modified; fines, fees and costs order corrected.
