SIXTH DIVISION
March 12, 2004

No. 1-02-0701

JUSTICE GALLAGHER delivered the opinion of the court:

Following a jury trial, defendant James Cokley was convicted of residential burglary andpossession of a controlled substance and was sentenced to eight years and one year in prison,respectively, with those sentences to be served concurrently. On appeal, defendant contends that:(1) his trial counsel was ineffective in failing to move for separate trials on the two charges againstdefendant; (2) trial counsel also was ineffective in failing to file a motion to quash defendant'sarrest and suppress evidence because defendant was arrested without a warrant and police lackedprobable cause to arrest him; and (3) the trial court excluded relevant testimony that supporteddefendant's alibi and his claim that his inculpatory statement was coerced. Based on ourresolution of the second issue, we reverse the judgment of the trial court and remand for retrial. The State charged defendant with committing a residential burglary on February 12, 2001,and with possessing heroin on March 18, 2001. Defendant was tried simultaneously on bothcounts. At trial, Henry Barsch, a Chicago police officer whose duties then included crime patterninvestigation and monitoring narcotics activity, testified that on February 12, 2001, he arrivedhome at his condominium at 3720 West 111th Street in Chicago. Barsch left home at about noon,leaving his weapon on a desk and locking the door behind him. When Barsch returned at about2:30 p.m., he noticed that his gun was gone and subsequently discovered that a leather jacket,about $120 in cash and some of his wife's jewelry also were missing. Barsch observed pry markson the door to his unit and on the building's back door.

Barsch testified that on March 18, 2001, he and a partner were performing surveillance on8755 South Crandon in response to a stop order for defendant relating to the burglary of Barsch'sresidence. Barsch explained that a stop order alerts officers to hold an individual for questioningregarding an offense should that person be stopped for another reason. A license plate check of amaroon Toyota Camry parked on the street in front of 8755 South Crandon indicated that the carwas registered to defendant at that address.

Barsch testified that defendant left 8755 South Crandon and retrieved a Crown Royal bagfrom the Camry. Barsch and other officers approached defendant, took the bag from him andfound that it contained what was later stipulated to be .4 grams of heroin. On cross-examination,Barsch testified that his district did not include 8755 South Crandon but that his surveillance wasin response to the stop order for defendant. Chicago police officer Katalinic⁽¹⁾ testified that after heand other officers recovered the Crown Royal bag from defendant, defendant was arrested andtaken to the 4th District police station.

Suzanne Deane testified that she lived in a second-floor condominium at the back ofBarsch's building. On February 12, 2001, Deane was sitting in her living room near a sliding glassdoor to her balcony, which overlooked the parking lot. She saw a man drive a maroon ToyotaCamry into the lot and back the car into a parking space. Deane identified defendant in court asthe driver and sole occupant of the Camry.

Deane testified that defendant got out of the car and looked up at the building's top floors. Defendant walked towards the building; however, Deane could not see if he entered the buildingbecause the building entrance is directly under her balcony. Deane also did not see defendantleave the building but noted at about 2:30 or 3 p.m. that the maroon Camry was gone. About oneweek later, Deane identified defendant in a six-picture police photo array. She also selecteddefendant in a six-man police lineup the day after his drug arrest.

On cross-examination, Deane stated that during her preliminary hearing testimony, she didnot describe the maroon car as a Camry. She said defendant arrived at her building between 1:45and 2:15 p.m. She did not see anything in defendant's hands. On redirect examination, Deanesaid that defendant wore an overcoat that extended past his knees. Deane said she was not askedat the preliminary hearing what type of car defendant was driving.

Chicago police detective Susan Joyce testified that no usable fingerprints were recoveredfrom Barsch's residence. Detective Joyce interviewed Deane on February 15 and again onFebruary 27, when Deane identified defendant in a photo array. The detective testified that as aresult of Deane's identification, an investigative alert was issued, which informed officers thatdefendant was wanted for questioning in the residential burglary investigation.

Detective Joyce interrogated defendant after he appeared in the March 19 lineup. Sheinformed defendant of his Miranda rights, which defendant indicated that he understood, and toldhim he had been positively identified in the lineup. Defendant then admitted to the burglary,stating that he and a man he called Kiki drove to 3720 West 111th Street in his Toyota becauseKiki intended to commit a burglary there. Defendant and Kiki entered the building after pryingopen the building's back door. Kiki entered a unit on an upper floor and remained there for about20 minutes while defendant acted as a lookout on the first floor. Defendant said Kiki returnedwith a leather bag containing a gun and some jewelry and Kiki gave him $100.

At the close of the State's case, defense counsel moved for a directed verdict on theresidential burglary count. Stating that defendant did not contest the drug charge, defensecounsel argued that the testimony of Barsch and Deane was insufficient to show that defendantcommitted residential burglary and that defendant's purported confession conflicted with Deane'saccount that she saw defendant enter the building alone. The trial court denied the defense'smotion for a directed verdict.

The defense presented alibi testimony from defendant and Johnny Johnston, his manager atUnited Parcel Service (UPS) in Hodgkins. Johnston testified that defendant worked as a utilityperson, cleaning trailers and equipment and performing miscellaneous tasks. Johnston stated thatdefendant's February 12, 2001, timecard indicated that defendant began work that day at 5:47a.m. and took a lunch break from 11:30 a.m. to noon. The last entry on defendant's timecardshowed that defendant started his last task at 2:08 p.m. and ended at 2:30 p.m. Johnston statedthat an employee's user identification and password were needed to make such entries.

On cross-examination, Johnston acknowledged that defendant's timecard showed that analteration was made to the entry that indicated he finished a job at noon; the card was changed toshow that defendant completed a task at 11:30 a.m. Johnston said he did not monitor whethertimecard entries corresponded with the work that employee was doing or when the employeefinished a job. He said employees could make entries on each other's timecards if they exchangedpasswords. On redirect, defense counsel asked Johnston if employees were penalized for notdoing the work indicated on their timecard. The State objected, and the trial court sustained theobjection. Counsel asked if defendant was penalized on February 12, 2001, for taking a longerlunch than shown on his timecard. The court again sustained the State's objection.

Defendant testified that he lived at 8755 South Crandon. Defendant admitted topossessing heroin on March 18, 2001, and stated that he had served two years of probation for aprevious drug conviction. When asked if he "remembered the events of February 12, 2001,"defendant replied "not really" because it was "just another day." Defendant denied participatingin the burglary of Barsch's residence, stating that he was at work at the time. He stated he hadnever been to 3720 West 111th Street until recently when, at his attorney's request, defendantdrove there from the UPS building to see how long it took to travel between those locations. Thetrip took about 22 minutes. Defendant said that while working at UPS, he wore a blue shirt, darkblue pants, work boots and safety glasses. He said he created his computer password and no oneelse knew it.

Defendant testified that he confessed to the burglary "under coercion." He said that afterDetective Joyce interviewed him about the burglary, he spoke to an FBI agent whose name hecould not recall. Defendant said he did not write out or sign a statement for Detective Joyce butrather that the detective was "feeding [him] lines" and he "just kind of agreed with what she wassaying." When asked why he confessed, defendant said he thought he would be charged with afederal crime.

On cross-examination, defendant stated that he owned a maroon Toyota Camry. Headmitted possessing heroin at the time of his arrest but denied that it was in a Crown Royal bag. Defendant said Detective Joyce and the FBI agent told him certain facts to include in hisconfession but that he offered other facts on his own. The defense rested.

The jury found defendant guilty of residential burglary and possession of a controlledsubstance. In his motion for a new trial, defendant argued that the trial court prevented him fromoffering testimony that he believed the officers who took his inculpatory statement were coercive. The trial court denied defendant's motion and, after considering factors in aggravation andmitigation, sentenced defendant to eight years in prison for the residential burglary and aconcurrent one-year sentence for possession of a controlled substance.

On appeal, we first address defendant's contention that his trial counsel was ineffective forfailing to file a motion to quash his arrest and suppress evidence. Defendant contends that whenpolice arrested him on March 18 outside his home, the officers lacked probable cause to arresthim. He argues that the officers did not have sufficient evidence to reasonably believe he hadcommitted a crime; rather, via the stop order, they knew only that defendant was seen in theparking lot of Barsch's building at about the time the burglary occurred. Defendant claims hiscounsel's failure to raise this issue at trial was unreasonable and that because the police arrestedhim without a warrant or probable cause, the heroin, the lineup identification and his inculpatorystatement must be suppressed as the fruit of his illegal arrest. Defendant asks this court to reversehis convictions and remand his case for a new trial or, in the alternative, a suppression hearing atwhich the trial court can consider further evidence on the legality of his arrest.

The State responds that because defense counsel did not challenge the circumstancessurrounding defendant's arrest and move to quash the arrest and suppress evidence, prosecutorslacked the opportunity to present in the trial court all of the evidence relevant to the issue ofprobable cause. Absent such evidence, the State contends, this court cannot determine whetherdefense counsel's decision was unreasonable. Nevertheless, the State asserts that Deane'stestimony and the stop order constituted probable cause for the officers to arrest defendant andargues that this court should presume defense counsel's performance was reasonable and that thedecision not to file the motion amounted to trial strategy.

However, defendant replies that aside from Deane's testimony identifying him in theparking lot, no evidence linked him to the burglary of Barsch's residence. He asserts that becauseDeane's testimony does not establish probable cause for his arrest, a reasonable probabilityexisted that a motion to quash his arrest and suppress evidence would have been successful, thusleaving no evidence to support either conviction.

To demonstrate ineffective assistance of counsel under Strickland v. Washington, 466U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant must show that counsel'sperformance was deficient and that the deficient performance prejudiced the defendant such thatthe result of the proceeding would have been different. Proof that the defendant was prejudicedby counsel's deficient performance requires an affirmative showing of a "reasonable probabilitythat, but for counsel's unprofessional errors, the result of the proceeding would have beendifferent." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Counsel'sdecision not to file a motion to quash a defendant's arrest and suppress evidence does notautomatically constitute incompetence because such a decision is traditionally viewed as one oftrial strategy, and a defendant must overcome the strong presumption that counsel's actions werethe result of that strategy and not an indication of incompetence. People v. Little, 322 Ill. App.3d 607, 610-11, 750 N.E.2d 745, 749-50 (2001); see also People v. Rodriguez, 312 Ill. App. 3d920, 925, 728 N.E.2d 695, 702 (2000). To support a conclusion that defense counsel wasineffective in failing to file a motion to quash and suppress, a defendant must show that areasonable probability exists that the motion would have been granted and also that the outcomeof the trial would have been different had the trial court granted the motion. Little, 322 Ill. App.3d at 611, 750 N.E.2d at 750.

Probable cause exists if a police officer has knowledge of facts which would lead areasonable person to believe that a crime has been committed and that the person arrestedcommitted the offense. People v. Moody, 94 Ill. 2d 1, 7, 445 N.E.2d 275, 278 (1983), citingDunaway v. New York, 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 833 n.9, 99 S. Ct. 2248, 2254n.9 (1979). While this standard requires more than mere suspicion, an arresting officer is notrequired to possess evidence sufficient to convict. Moody, 94 Ill. 2d at 7, 445 N.E.2d at 278;People v. Aguinaga, 231 Ill. App. 3d 153, 173, 598 N.E.2d 984, 997 (1992); see also Michiganv. DeFillippo, 443 U.S. 31, 36, 61 L. Ed. 2d 343, 349, 99 S. Ct. 2627, 2631 (1979) ("We havemade clear that the kinds and degree of proof and the procedural requirements necessary for aconviction are not prerequisites to a valid arrest"). Whether probable cause exists is a common-sense, practical determination to be made upon examination of the totality of the circumstancespresented. Illinois v. Gates, 462 U.S. 213, 233, 76 L. Ed. 2d 527, 545, 103 S. Ct. 2317, 2329(1983). Moreover, "[t]he inquiry must focus on what was done and known by the police, not onwhat was believed, what the facts objectively viewed add up to, not what the officer on the scenebelieved they added up to." Moody, 94 Ill. 2d at 10, 445 N.E.2d at 279.

In the instant case, defendant was the subject of a stop order resulting from Deane'sidentification of defendant in a police photo array and Deane's statement to police that she sawdefendant in the parking lot of the building where the residential burglary occurred during theapproximate time of the offense. The State contends that the totality of the evidence presentedsupported a finding of probable cause and argues that the stop order was "highly probative ofprobable cause," citing People v. Spicer, 163 Ill. App. 3d 81, 516 N.E.2d 491 (1987). However,while the presence of a stop order is relevant to an analysis of whether probable cause existed toarrest, Spicer does not stand for the proposition that such an investigative alert, without more, issufficient to support a finding of probable cause. In Spicer, police issued a stop order for thedefendant, and the defendant contested the legality of his arrest because police entered his homewithout a warrant, without consent and lacking exigent circumstances. Spicer, 163 Ill. App. 3d at86, 516 N.E.2d at 495. However, the defendant conceded that probable cause existed for hisarrest, making Spicer of dubious value to a determination of the weight of a stop order inestablishing probable cause. Spicer, 163 Ill. App. 3d at 87, 516 N.E.2d at 495.

Defendant calls our attention to an appellate court decision explicitly holding that a stoporder, in and of itself, is not dispositive of whether probable cause exists to support an arrest. InPeople v. Simpson, 129 Ill. App. 3d 822, 828-29, 473 N.E.2d 350, 355 (1984), police issued astop order for the defendant following the victim's death from a gunshot wound. About twomonths later, after the defendant was arrested for shoplifting and questioned about the homicide,he confessed to shooting the victim. Simpson, 129 Ill. App. 3d at 829, 473 N.E.2d at 355. Onappeal, the defendant argued that he was not arrested on the basis of a warrant but only afterpolice issued an internal stop order. Simpson, 129 Ill. App. 3d at 830, 473 N.E.2d at 356. Thiscourt upheld the trial court's finding that probable cause existed to arrest the defendant based ona police officer's testimony that the defendant had threatened the victim with death or seriousbodily harm, as well as the fact that the defendant gave police a false name and birth date when hewas arrested for shoplifting. Simpson, 129 Ill. App. 3d at 830, 473 N.E.2d at 356. However, theappellate court noted that the trial court correctly concluded that "the officers' reliance upon apolice stop order was not dispositive of whether probable cause supported the defendant's arrestfor homicide." Simpson, 129 Ill. App. 3d at 831, 473 N.E.2d at 356.

Likewise, in other cases analyzing the significance of police stop orders in establishingprobable cause, the State has offered evidence other than the stop order to support probable causefindings, and it is particularly noteworthy that the additional proof was primarily elicited at pre-trial suppression hearings. See People v. White, 134 Ill. App. 3d 262, 479 N.E.2d 1121 (1985)("entirety of the record," including defendant's suspicious actions, information from anonymoustip and confidential informant, and advisory from neighboring police department that defendantwas wanted for investigation constituted probable cause to arrest); People v. Richmond, 84 Ill.App. 3d 1017, 406 N.E.2d 135 (1980) (victims of attempted murder and armed robbery identifieddefendant after viewing about 400 photographs in police collection); People v. Green, 88 Ill. App.3d 929, 410 N.E.2d 1003 (1980) (patrol officer who recognized defendant and stoppeddefendant's car in accordance with stop order following gas station robbery saw gun in plain viewon rear seat); People v. Harper, 16 Ill. App. 3d 252, 305 N.E.2d 680 (1973) (after issuing stoporder, police received anonymous phone call that defendant was one of two men "wanted fornumerous robberies" and learned via internal check that defendant was wanted for aggravatedbattery). See also People v. Beard, 35 Ill. App. 3d 725, 342 N.E.2d 343 (1976).⁽²⁾

Having considered that authority and the circumstances of this case, we reject the State'sargument that the stop order, by itself, provided probable cause for defendant's arrest. We notethat no facts were presented as to the internal police procedures that preceded the issuance of thestop order in this case, and in another situation, the facts prompting a police stop order couldconstitute probable cause to arrest a suspect. However, the particular facts presented to the trialcourt in this case were insufficient to establish probable cause to arrest defendant.

Turning to defendant's ineffective assistance argument, the first prong of Stricklandrequires a showing that defense counsel's performance "fell below an objective standard ofreasonableness," and a defendant is required to overcome the strong presumption that thechallenged action was the result of sound trial strategy and not the result of incompetence.

See Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Spann, 332Ill. App. 3d 425, 430, 773 N.E.2d 59, 64 (2002). We agree with defendant that in this case, areasonable probability exists that a motion to quash defendant's arrest and suppress evidencewould have been granted. As discussed above, the stop order alone did not provide police withprobable cause to arrest defendant for residential burglary. The basis for the stop order wasDeane's statement to police that she saw defendant in the parking lot of her building at about thetime the crime occurred. No testimony was offered that Deane saw defendant carrying items fromthe building or that prior to defendant's arrest, he was seen in possession of the items that Barschreported missing.

It is significant that in the cases cited above, the facts were further developed throughtestimony presented at hearings on defense motions to quash the defendants' arrests and suppressevidence. The State asserts that in the absence of a suppression hearing in the trial court, therecord before this court lacks all of the evidence relevant to a determination of probable cause. While we do not speculate as to the evidence that the State may present on remand or commenton the ultimate success of such a motion, we conclude that, based on the record that we have inthis case, a reasonable probability exists that a motion to quash defendant's arrest and suppressevidence would have been successful.

Turning to Strickland's second prong, a defendant must demonstrate a reasonableprobability that but for counsel's deficient performance, the result of the proceeding would havebeen different; a "reasonable probability" is defined as a probability sufficient to undermineconfidence in the outcome. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Here, defendant was clearly prejudiced by defense counsel's failure to challenge the circumstancesof his arrest. Pursuant to the exclusionary rule, evidence obtained as a result of an illegal searchcannot be introduced against the defendant, absent some exception to that rule. Wong Sun v.United States, 371 U.S. 471, 484-85, 9 L. Ed. 2d 441, 453-54, 83 S. Ct. 407, 416 (1963). Seealso Costello v. United States, 365 U.S. 265, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961); Brown v.Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). Therefore, had the trial courtgranted the motion and found that defendant's arrest was illegal because the police lackedprobable cause, the State would have been barred from introducing evidence flowing from thatarrest, namely, the heroin in the Crown Royal bag. See People v. Abrams, 48 Ill. 2d 446, 455,271 N.E.2d 37, 43 (1971). The State therefore would have lacked any evidence to support acharge of possession of a controlled substance. Likewise, Deane's identification of defendant in alineup the day after his arrest, as well as defendant's inculpatory statement, also could besuppressed, thus eliminating the proof necessary for defendant's residential burglary conviction. Because the State offered no other evidence of defendant's guilt, defense counsel's failure tochallenge the circumstances of defendant's arrest resulted in prejudice to defendant. For thosereasons, we find defendant has satisfied both prongs of Strickland and that his trial counsel wasineffective for failing to move to quash defendant's arrest and suppress evidence.

The State asserts that the proper forum for defendant's ineffective assistance arguments isa postconviction petition. Defendant replies that this court is well-suited to review his ineffectiveassistance claim, citing People v. Little, 322 Ill. App. 3d 607, 750 N.E.2d 745 (2001), and heargues that the record contains sufficient facts to determine whether his counsel was ineffective infailing to file a motion to quash his arrest and suppress evidence. We agree with Little's rejectionof the argument that a postconviction proceeding is the best venue to decide a defendant'sineffective assistance claim:

"The trial court's concern in any postconviction proceeding instituted ondefendant's behalf would involve the same issue confronted by us here, namelywhether defendant's trial attorney was ineffective for not pursuing a motion toquash and suppress evidence. Any evidentiary hearing on such a postconvictionpetition would be aimed at determining the reasonableness of counsel's decision inelecting not to pursue a pre-trial suppression motion and not, as intimated by theState, conducted for purposes of determining whether the arresting officers actedwith sufficient probable cause. Thus, the factual record regarding the informationknown and relied upon by the arresting officers would be no more developed in apostconviction proceeding than it is here. Additionally, to conclude that defendantshould wait to raise his ineffective assistance claim in a collateral proceeding wouldunfairly subject defendant to the risk of having his contention waived or barred byres judicata." Little, 322 Ill. App. 3d at 613-14, 750 N.E.2d at 752.

For the reasons enunciated in Little, we disagree with the State that defendant's ineffectiveassistance claim is best resolved in a subsequent postconviction proceeding.

Defendant asks this court to remand for a new trial or, in the alternative, for the trial courtto hold a suppression hearing on the legality of his arrest. Having considered those forms ofrelief, we conclude that because defendant was deprived of the effective assistance of counsel attrial, the appropriate disposition is to reverse the judgment of the trial court and remand for a newtrial. People v. Smith, 321 Ill. App. 3d 523, 533, 747 N.E.2d 1081, 1091 (2001); People v.Young, 306 Ill. App. 3d 350, 356, 716 N.E.2d 312, 316 (1999) (where defendant does not receiveeffective assistance of counsel but evidence is sufficient to convict, proper remedy is to reversedefendant's conviction and remand for new trial.)⁽³⁾

Accordingly, for all of the foregoing reasons, the judgment of the trial court is reversedand this case is remanded for retrial. In light of that relief, we need not consider defendant'sremaining contentions.

Reversed and remanded.

O'MARA FROSSARD, P.J., and FITZGERALD SMITH, J., concur.

1. The record does not indicate Officer Katalinic's first name.

2. The Illinois Supreme Court has not faced the issue of the weight of a police stop orderor investigative alert in determining probable cause. In People v. King, 109 Ill. 2d 514, 536-37,488 N.E.2d 949, 961 (1986), although the defendant contended that the stop order in that casewas not based on probable cause, the supreme court held the defendant waived that issue byfailing to raise it at the suppression hearing or at trial.

3. We note that defendant does not challenge the sufficiency of the evidence to convict him. To allay any double jeopardy concerns should the trial court order the suppression of the heroin,the identification of defendant, and his inculpatory statement and grant defendant a new trial, wefind that the evidence presented to the trial court in this case was sufficient to convict defendantbeyond a reasonable doubt. See People v. Mink, 141 Ill. 2d 163, 173-74, 565 N.E.2d 975, 979-80 (1990) ("The double jeopardy clause precludes the State from retrying a defendant once areviewing court has determined that the evidence introduced at trial was legally insufficient toconvict"). See also Young, 306 Ill. App. 3d at 356, 716 N.E.2d at 316; People v. Goff, 299 Ill.App. 3d 944, 949, 702 N.E.2d 299, 302 (1998) (case may be remanded for retrial only ifprosecution at first trial presented evidence sufficient to sustain conviction beyond reasonabledoubt). However, should the trial court on remand order the suppression of the above-describedevidence, the State clearly would require other proof to try defendant again for these offenses.