The opinion
JUSTICE O’BRIEN, dissenting:
We got it right the first time.
I adopt our original order, which we withdrew after the supreme court issued its supervisory order, as my dissent.
Following a bench trial, defendant Calvin Richardson was convicted of burglary and was sentenced to eight years in prison. On appeal, defendant contends that his trial counsel was ineffective in failing to move to suppress evidence that police obtained during a Terry stop. Defendant also asks this court to remand his case to the trial court for a new fitness hearing because he was not admonished of his right to confront witnesses. In addition, defendant challenges the trial court’s order that he provide a sample for inclusion in DNA identification databases. Because we conclude that a motion to suppress likely would have succeeded because police lacked a reasonable articulable suspicion of criminal activity, we reverse defendant’s conviction and sentence and remand to the trial court.
At trial, Stanley Puchalski testified that on the morning of December 30, 2003, he was employed by Why Not Iron, a company that specialized in ornamental and architectural ironwork. Puchalski testified that while completing a job at 1621 North Kenton, he went to his van at about 11:20 a.m. to find that it had been broken into and two of his toolboxes were gone.
Chicago police officer William Lehner testified that at about 11:25 a.m. on December 30, 2003, he and his partner observed defendant walking near 4609 West Grand Avenue carrying a power tool case in each hand. The officers were in plain clothes and driving an unmarked vehicle traveling in the opposite direction that defendant was walking.
Officer Lehner testified that after he observed defendant carrying the cases, he turned his vehicle around and pulled to the curb near defendant. As the officers got out of the car, defendant set the cases down on the ground and approached them. The officer further testified:
“Q. When the defendant came over to your vehicle, what happened?
A. I questioned him as to what he had in the cases and what they were.
Q. What did he tell you?”
The trial court sustained a defense objection to Officer Lehner’s answer to that question and the officer was asked the question again:
“Q. Specifically what did he say, officer?
A. At first he stated that those were tools and they belonged to his dad. Then we asked again, and he stated he got them from his friend’s house by Kostner and Division. Then he stated that they were his. Then after I asked him what kind of tools they were, he stated several different types of tools.
Q. Did you ask him what kind?
A. Yes, I did.
Q. What did he say?
A. He couldn’t exactly state what they were. He didn’t know.”
Officer Lehner stated that he then noticed the letters WNI on the cases and asked defendant what those markings meant. Defendant did not respond; the officer stated it was “like [defendant] didn’t know what I was talking about.” Officer Lehner opened the cases and found an invoice bearing the company name of Why Not Iron. The officers arrested defendant and transported him to the station, where he admitted that he stole the tools for money to buy drugs. On cross-examination, Officer Lehner stated that during their conversation on the street, he asked defendant two or three times where he got the tools and that the questioning lasted one or two minutes. The defense presented no testimony.
After the trial court found defendant guilty of burglary, the court held a hearing on defendant’s fitness to be sentenced, at which the parties stipulated that a staff psychiatrist for Forensic Clinical Services observed defendant and would testify to a reasonable degree of medical and psychiatric certainty that defendant was fit for sentencing while taking certain medications. The court found defendant fit for sentencing and imposed a term of eight years in prison for the offense. In addition, the court ordered defendant to submit a sample of blood, saliva or tissue for inclusion in a DNA database pursuant to section 5 — 4—3 of the Unified Code of Corrections (730 ILCS 5/5 — 4—3 (West 2004)).
ANALYSIS
I. Effectiveness of Trial Counsel
On appeal, defendant first contends that he received ineffective assistance of trial counsel because his attorney did not move to suppress the contents of the toolboxes or his incriminating statements to police. He argues that his most promising defense involved the exclusion of that evidence, and he asserts his trial counsel did not follow a sound trial strategy by failing to move to suppress that evidence.
To support a claim of ineffective assistance of counsel, a defendant must show that counsel’s representation fell below an objective standard of reasonableness and, furthermore, that counsel’s actions resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687 , 80 L. Ed. 2d 674, 693 , 104 S. Ct. 2052, 2064 (1984). In determining whether a defendant suffered substantial prejudice in a situation involving a motion to suppress, a reviewing court considers whether a reasonable probability exists that: (1) the motion to suppress would have been granted; and (2) the outcome of the trial would have been different had the evidence been suppressed. People v. Orange, 168 Ill. 2d 138, 153 , 659 N.E.2d 935, 942 (1995).
Defendant argues that a motion to suppress likely would have succeeded because the officers lacked a reasonable suspicion to stop and question him and further lacked probable cause to search the toolboxes. Moreover, he asserts that because his most viable defense was the suppression of the contents of the tool cases and the suppression of his inculpatory statements, he would not have been convicted absent that evidence. We agree with defendant on both points.
The fourth amendment to the United States Constitution and article I, section 6, of the Illinois Constitution protect citizens from unreasonable searches and seizures by the government. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, §6. Three types of police-citizen interaction are not considered to be seizures under the fourth amendment: (1) an arrest, which must be supported by probable cause; (2) a Terry stop; and (3) community caretaking, which describes a consensual encounter generally for public safety. People v. White, 221 Ill. 2d 1, 21 , 849 N.E.2d 406, 418 (2006). 3
In a Terry stop, a police officer may detain a person without having probable cause to arrest; however, the officer must have a reasonable, articulable suspicion that the person detained has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1 , 20 L. Ed. 2d 889 , 88 S. Ct. 1868 (1968). The facts supporting a reasonable suspicion for a Terry stop need not constitute probable cause to arrest, and officers do not have to witness a violation of the law; however, a mere hunch is insufficient to justify a Terry stop. People v. Beverly, 364 Ill. App. 3d 361, 369 , 845 N.E.2d 962, 969 (2006).
Defendant argues that the officers did not perform a lawful Terry stop because they interrogated him without having a reasonable suspicion that he had committed a crime. Defendant asserts that although he may have initially consented to talk to the officers, the encounter turned into an unlawful seizure during their questioning. He contends that the facts known to Officer Lehner and his partner at that time, i.e., his act of walking down the street carrying two tool cases, were insufficient to give the officers a reasonable suspicion of criminal activity. We agree.
A Terry stop is proper if a person of reasonable caution believes that the action taken was justified knowing the facts available at the time of the stop. People v. Spann, 332 Ill. App. 3d 425, 433 , 773 N.E.2d 59, 66 (2002). The reasonableness of a Terry stop is dependent on whether the officer’s action was: (1) justified at its inception; and (2) “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20 , 20 L. Ed. 2d at 905 , 88 S. Ct. at 1879 ; see also People v. Gonzalez, 204 Ill. 2d 220, 228-29 , 789 N.E.2d 260, 266 (2003). “A [Terry] stop must be objectively reasonable and predicated on specific and articulable facts that, taken together with the resulting inferences, would warrant the intrusion.” People v. Hopkins, 363 Ill. App. 3d 971, 981 , 845 N.E.2d 661, 671 (2005) . Officer Lehner testified that after he saw defendant walking down the street carrying two toolboxes, he reversed the direction of his vehicle and pulled it to the curb beside defendant. Seeing a person walking down the street carrying toolboxes does not support an objectively reasonable suspicion of criminal activity.
When the officer asked defendant “what he had in the [tool] cases and what they were,” defendant gave several inconsistent answers. The State argues that defendant’s responses “heightened” Officer Lehner’s suspicions about the toolboxes, which the State points out were “professional-grade boxes” that bore a company logo. We acknowledge that investigative Terry stops have been described as “evolving encounters where new facts continually emerge, feeding into the Terry calculus and justifying police action that only moments before would have been unlawful.” People v. Sloup, 359 Ill. App. 3d 841, 847 , 834 N.E.2d 995, 1001 (2005); see also People v. James, 365 Ill. App. 3d 847 (2006) . However, the State cannot point to the evidence collected during the stop — i.e., the inconsistent answers that defendant gave to Officer Lehner’s questions and any observations the officers may have made about the characteristics of the toolboxes — and use that evidence in a “bootstrap” fashion to support the officer’s reasonable articulable suspicion for making the stop in the first place.
Terry allows an officer to “briefly stop a person for temporary questioning if the officer has knowledge of sufficient articulable facts at the time of the encounter to create a reasonable suspicion that the person in question has committed or is about to commit a crime.” People v. Lee, 214 Ill. 2d 476, 487 , 828 N.E.2d 237, 246 (2005). The conduct justifying a stop under Terry must have been justified at its inception. People v. Thomas, 198 Ill. 2d 103, 109 , 759 N.E.2d 899, 902 (2001). “Viewed as a whole, the situation confronting the police officer must be so far from the ordinary that any competent officer would be expected to act quickly.” Thomas, 198 Ill. 2d at 110 , 759 N.E.2d at 902-03 . While we acknowledge the viewpoint in Sloup and James that investigatory stops are “evolving encounters,” in the instant case, the State presented no testimony of facts that were known to the officers at the outset of the conversation that would support a belief that defendant had committed or was about to commit a crime. Aside from defendant’s act of carrying the toolboxes down the street, the State points to no additional information that the officers possessed prior to their stop of defendant.
The State contends that Officer Lehner “briefly detained defendant to investigate possible criminal activity.” Again, the State did not offer any facts known to the officers before they stopped defendant, other than their observation of him walking down the street carrying two toolboxes. Furthermore, the undisputed testimony that defendant approached the officers, as opposed to the officers’ halting defendant’s progress, does not justify the questioning of defendant without a reasonable suspicion of criminal activity.
This court has found defense counsel ineffective for failing to move to suppress evidence in cases with more comprehensive prosecution testimony than that presented here. In Spann, an officer testified that in a neighborhood known for drug activity, he observed the defendant take money from an individual in exchange for an unidentified item. Spann, 332 Ill. App. 3d at 433 , 773 N.E.2d at 67 . However, this court held in Spann that the defendant’s counsel was ineffective for failing to seek suppression of the evidence given the absence of testimony to support a Terry stop, specifically the lack of testimony from the officer “as to what factors he found significant regarding his decision to approach [the] defendant and conduct further investigation.” Spann, 332 Ill. App. 3d at 433 , 773 N.E.2d at 66-67 . Comparing the circumstances in Spann to the case at bar, for example, the testimony in the instant case did not establish that the officers were aware of a report of stolen tools or indicate that the officers had a description of a suspect whom defendant resembled.
We acknowledge that the decision to file a motion to suppress is generally considered to be a matter of trial strategy immune from ineffective assistance claims. People v. Deloney, 359 Ill. App. 3d 458, 466 , 835 N.E.2d 102, 109 (2005). “Neither mistakes in trial strategy nor the benefit of another attorney’s hindsight are sufficient to demonstrate that the trial lawyer was objectively incompetent.” Deloney, 359 Ill. App. 3d at 467 , 835 N.E.2d at 109 . However, in this case, a successful motion would have kept the toolboxes from evidence and also would have prevented the admission of defendant’s inculpatory statements to police, thus depleting the whole of the State’s case. Had the trial court been unable to consider the evidence obtained in the illegal search or consider defendant’s statements, the result of defendant’s trial clearly would have been different.
Because a motion to suppress had a reasonable chance of success and the trial’s outcome likely would have been different had the motion been made, defense counsel was ineffective for failing to file such a motion. Therefore, we reverse defendant’s conviction and remand this case to the trial court to allow defense counsel to file a motion to suppress evidence and, depending on the outcome of the suppression hearing, for a new trial. Given that holding, we need not consider defendant’s argument that, had the Terry stop been supported by reasonable suspicion, the officers lacked probable cause to search the toolboxes.
II. Defendant’s Remaining Contentions on Appeal
A. Stipulated Testimony at Hearing on Defendant’s Fitness for Sentencing
After defendant’s conviction, the trial court held a hearing on defendant’s fitness to be sentenced. The hearing consisted solely of the stipulated testimony of the State’s psychiatrist that defendant was fit for sentencing with medications. Defendant now asks this court to vacate the trial court’s finding of fitness, asserting that his case should be remanded for a new hearing on his fitness to be sentenced because the court did not admonish him as to the stipulation and ascertain that he agreed to it, as defendant argues was required pursuant to People v. Campbell, 208 Ill. 2d 203 , 802 N.E.2d 1205 (2003). Because we have reversed defendant’s conviction and sentence and are remanding based on our resolution of the Terry stop issue, defendant’s request for a new hearing on his fitness to be sentenced is moot. We make no comment on whether the holding in Campbell applies in the context of a hearing on a defendant’s fitness to be sentenced.
B. Constitutionality of DNA Statute
In addition, we note defendant’s argument that the compulsory extraction of his DNA pursuant to section 5 — 4—3 of the Unified Code of Corrections (730 ILCS 5/5 — 4—3 (West 2002)), violates his fourth amendment right to be free of unreasonable searches and seizures. However, in the time since defendant asserted that argument, it has been addressed by the Illinois Supreme Court in People v. Garvin, 219 Ill. 2d 104 , 847 N.E.2d 82 (2006), which upheld the statute’s constitutionality. We therefore reject defendant’s contentions on this point.
CONCLUSION
In summary, we hold that defendant received ineffective assistance of counsel because a motion to suppress evidence likely would have succeeded given the lack of evidence that officers had a reasonable articulable suspicion of criminal activity when they questioned defendant. Accordingly, this case is remanded to allow the filing of such a motion, and for a new trial if one is necessary based on the outcome of the motion.
Neither party purports that the officers were performing community caretaking.