People v. McClendon , 2022 IL App (1st) 163406 ( 2022 )


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    2022 IL App (1st) 163406
    Nos. 1-16-3406 & 1-19-0886 (consolidated)
    March 07, 2022
    First Division
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST DISTRICT
    ______________________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Appeal from the Circuit Court
    )   of Cook County, Illinois.
    Plaintiff-Appellee,                                    )
    )   No. 14 CR 18685
    v.                                                         )
    SEAN McCLENDON                                                )   The Honorable
    )   Stanley Sacks
    Defendant-Appellant.                                   )   Judge Presiding.
    )
    JUSTICE WALKER delivered the judgment of the court, with opinion.
    Presiding Justice Hyman and Justice Pucinski concurred in the judgment and opinion.
    OPINION
    ¶1     A jury found Sean McClendon guilty of violating the armed habitual criminal provision of
    the Criminal Code of 2012 (Code) (720 ILCS 5/24-1.7 (West 2014)). McClendon contends his
    attorney provided ineffective assistance by failing to argue that police obtained the evidence
    against him as a result of an illegal seizure. We hold that McClendon abandoned the gun in
    response to an illegal seizure, and therefore, if his attorney had argued the issue, the trial court
    should have suppressed the gun and other evidence against McClendon. We reverse the conviction
    and vacate the sentence.
    No.16-3406 & 19-0886 (consolidated)
    ¶2                                      I. BACKGROUND
    ¶3      Around 11 p.m. on October 10, 2014, a police officer reported hearing gunfire in the
    vicinity of 99th Street and Hoxie Avenue. The reporting officer gave no description of the shooter
    and did not say whether the shooting involved a car. Officers Bryant McDermott and Robert
    McHale, on patrol wearing plain clothes in an unmarked car, drove to the area. At 99th Street and
    Yates Avenue, about four blocks from Hoxie Avenue, the officers noticed a black Nissan backing
    into a driveway. As their unmarked car passed the driveway, the driver and the passenger in the
    Nissan ducked down in their seats. The officers left their car to approach the Nissan, but the Nissan
    drove off onto Yates Avenue, with Poe as the driver and McClendon as a passenger. The officers
    lost track of the Nissan when it turned on 95th Street, but a police helicopter located it and
    followed. The police dispatcher asked the officers why they were following the Nissan. Eventually,
    the officers answered they followed the Nissan because they saw the car at “a house known for
    shooting.” However, the officers admitted that the Nissan and those in the car were “probably not”
    involved with the shooting on Hoxie Avenue.
    ¶4      The officer in the helicopter followed the Nissan to 78th Street and South Shore Drive,
    where Officer Milot Cadichon and his partner, directed by helicopter, caught up with the Nissan
    in a parking lot. Cadichon and his partner pointed their guns at the two men they saw on a nearby
    porch, ordered them not to move, and took them into custody. The two men on the porch were
    McClendon and Emmanuel Poe. A few minutes later, an officer reported finding a gun on the
    porch. Prosecutors charged McClendon with violating the armed habitual criminal section of the
    Code.
    -2-
    No.16-3406 & 19-0886 (consolidated)
    ¶5     McClendon’s attorney filed a motion to suppress evidence of the gun found on the porch.
    At the hearing, Cadichon testified that he pulled into the parking lot right behind the Nissan and
    saw Poe exit from the driver’s side while McClendon came from the passenger side of the Nissan.
    McClendon and Poe ran to the porch, where McClendon dropped an object. Another officer picked
    up the object, a gun, from behind the couch on the porch. The court denied the motion to suppress,
    finding that McClendon had no standing to object to the search of the porch.
    ¶6     At trial, after the jury saw the video recording taken from the helicopter, Cadichon
    amended his testimony considerably. He admitted that by the time his car entered the parking lot,
    no one remained in the Nissan. McClendon and Poe already stood on the porch, apparently trying
    to enter the building. Cadichon saw no one in the parking lot other than McClendon, Poe, and the
    numerous officers arriving in response to McDermott’s report. Although McDermott said
    McClendon and Poe were probably not involved in the shooting on Hoxie Avenue, Cadichon still
    relied on the report of that shooting as grounds for pointing his gun at McClendon and Poe and
    ordering them to stop. According to Cadichon, McClendon moved “[m]aybe one or two feet at the
    most,” pulled out a metal object, and dropped it behind the couch. Cadichon heard a “clink” as the
    object hit the wooden porch. Cadichon directed another officer to the spot and that officer retrieved
    the gun. No officer tested McClendon’s hands or clothes or Poe’s hands or clothes for gunshot
    residue. No officer checked the gun for fingerprints.
    ¶7     McDermott recounted the encounter at 99th Street and Yates Avenue, including his
    decision to approach McClendon and Poe because they ducked down in their seats when the
    unmarked car rolled slowly past the driveway where they parked. McDermott testified that he
    interviewed McClendon at the police station around 11:45 p.m. on October 10, 2014. According
    -3-
    No.16-3406 & 19-0886 (consolidated)
    to McDermott, McClendon readily admitted he had the gun, adding “There are a lot of mother
    f***” after him.
    ¶8     Poe testified he drove McClendon to 99th Street and Yates Avenue to his friend’s home.
    After he parked in the driveway, he saw a car pull up on the street. Two men hopped out of the car
    and rushed at his car. Poe drove off fast. He could not tell whether the approaching men were
    police, but he had a suspended license, so he thought it best to leave fast. He drove back to 78th
    Street and South Shore Drive to rejoin a party he and McClendon had attended. He and McClendon
    rang the doorbell before police came and arrested them. Neither of them had a gun, and neither of
    them dropped anything on the porch.
    ¶9     McClendon corroborated Poe’s account. They both stopped when police said, “Freeze.”
    They faced police and put out their hands for cuffs. Neither McClendon nor Poe had a gun, and
    neither dropped anything on the porch. McClendon did not say to any officer that he had a gun or
    that anyone was out to get him.
    ¶ 10   The parties stipulated that McClendon had two prior felonies that would make his
    possession of a firearm a violation of the armed habitual criminal section of the Code. The jury
    found him guilty. The court denied his posttrial motion and sentenced him to eight years in prison.
    McClendon filed a timely appeal.
    ¶ 11   Before this court addressed the appeal, McClendon filed a postconviction petition, arguing
    primarily that he received ineffective assistance of counsel. The trial court dismissed the
    postconviction petition at the first stage of postconviction proceedings. McClendon appeals the
    dismissal of his postconviction petition. We consolidated the direct appeal of the conviction with
    the appeal from dismissal of the postconviction petition.
    -4-
    No.16-3406 & 19-0886 (consolidated)
    ¶ 12                                       II. ANALYSIS
    ¶ 13    On appeal, McClendon argues that his trial counsel provided ineffective assistance by
    failing to argue that the gun and any statements about the gun constituted fruits of an illegal seizure.
    He also contends the evidence does not support a finding beyond a reasonable doubt that he
    possessed the gun.
    ¶ 14    For the appeal from the dismissal of his postconviction petition, McClendon need only
    show that he has stated the gist of a claim that his attorney’s acts deprived McClendon of his right
    to effective assistance of counsel. People v. Edwards, 
    197 Ill. 2d 239
    , 244 (2001). We review
    de novo the dismissal of the petition without an evidentiary hearing. 
    Id. at 247
    . For the direct
    appeal, McClendon must show “the unargued suppression motion is meritorious, and that a
    reasonable probability exists that the trial outcome would have been different had the evidence
    been suppressed.” People v. Henderson, 
    2013 IL 114040
    , ¶ 15.
    ¶ 15    The trial court denied the motion to suppress based on its finding that McClendon had no
    standing to object to the search of the porch. However, the location of a search incident to an
    unlawful seizure makes no difference. The trial court should suppress all evidence obtained as a
    result of any violation of the fourth amendment to the United States Constitution, including an
    illegal seizure. U.S. Const., amend. IV; People v. Burns, 
    2016 IL 118973
    , ¶ 47; People v. Townes,
    
    91 Ill. 2d 32
    , 39 (1982).
    ¶ 16    The fourth amendment forbids unreasonable searches and seizures. People v. Gherna, 
    203 Ill. 2d 165
    , 176 (2003). “A person has been seized within the meaning of the fourth amendment
    only when, in view of all the circumstances surrounding the incident, a reasonable person would
    have believed that he or she was not free to leave.” People v. Thomas, 
    198 Ill. 2d 103
    , 111 (2001).
    -5-
    No.16-3406 & 19-0886 (consolidated)
    To determine whether a seizure has occurred, Illinois courts look primarily to four factors:
    “ ‘[(1)] the threatening presence of several officers, [(2)] the display of a weapon by an officer,
    [(3)] some physical touching of the person of the citizen, or [(4)] the use of language or tone of
    voice indicating that compliance with the officer’s request might be compelled.’ ” People v. Cosby,
    
    231 Ill. 2d 262
    , 274 (2008) (quoting United States v. Mendenhall, 
    446 U.S. 544
    , 554 (1980)).
    ¶ 17   In this case, Cadichon pointed his gun at McClendon, and Poe and ordered them to stop.
    Other officers surrounded McClendon and Poe. While Cadichon said McClendon and Poe did not
    immediately stop moving, he admitted they stayed on the porch, which was only 10 feet wide and
    5 feet deep, until officers handcuffed them. McClendon and Poe submitted to the officers’
    authority by remaining on the porch. Applying the Cosby factors, we find that officers seized
    McClendon and Poe when several officers drew their weapons, surrounded McClendon and Poe,
    and ordered them to stay on the porch where they were subsequently arrested.
    ¶ 18   The fourth amendment permits seizures “only when the police officer has specific,
    articulable facts which, when taken together with rational inferences, create a reasonable suspicion
    that the private citizen is involved in criminal activity.” In re Rafeal E., 
    2014 IL App (1st) 133027
    ,
    ¶ 25. “The officer must have this valid justification for seizing the individual at the moment of the
    seizure. [Citations]. In determining whether the officer had a reasonable suspicion, a court
    considers the totality of the circumstances known to the officer at the time.” In re Edgar C., 
    2014 IL App (1st) 141703
    , ¶ 97.
    ¶ 19   Police first noticed McClendon and Poe when their black Nissan backed into a driveway
    about four blocks from the area where another officer reported hearing gunshots. McClendon and
    Poe ducked down in their seats as the officers’ unmarked car passed the driveway. When the
    -6-
    No.16-3406 & 19-0886 (consolidated)
    officers in plain clothes approached the Nissan, the car took off with Poe as the driver and
    McClendon as a passenger. The officers soon lost sight of the Nissan. A helicopter, but not police
    cars, followed the Nissan to 78th Street and Stony Island Avenue. The officers who radioed for
    the helicopter admitted that the car and its occupants were “probably not” connected to the
    gunshots from Hoxie Avenue. When the police dispatcher asked why police should follow the
    Nissan, the officers said they saw the car at “a house known for shooting.”
    ¶ 20   Cadichon saw the empty Nissan in the parking lot, and then he saw McClendon and Poe
    standing on a porch nearby. At that point, no officer claimed to have seen McClendon or Poe
    engaged in any criminal activity or at the scene of any crime. No officer claimed to have seen
    McClendon or Poe in possession of a firearm. Slouching in a car seat as an unmarked car passes
    does not support an inference of criminal activity. Courts have consistently held that running from
    police, absent other circumstance indicating criminal conduct, is not sufficient to establish the
    reasonable suspicion necessary to effectuate an investigatory stop without other circumstances.
    See, e.g., People v. Bloxton, 
    2020 IL App (1st) 181216
    , ¶ 21 (avoiding an approaching officer does
    not, on its own, give rise to probable cause or even reasonable suspicion); In re D.L., 
    2018 IL App (1st) 171764
    , ¶ 29 (no reasonable suspicion where, “aside from [respondent’s] flight, there was no
    testimony showing that respondent was acting suspiciously in any way”); People v. Harris, 
    2011 IL App (1st) 103382
    , ¶ 15 (finding evidence of flight was insufficient to justify Terry stop where
    the only evidence justifying the stop was defendant’s evasive conduct). Thus, where flight alone
    is insufficient to meet even this lower standard necessary for the Terry investigatory stop, flight
    alone is not sufficient to establish probable cause to arrest. In re D.W., 
    341 Ill. App. 3d 517
    , 526
    (2003). Furthermore, avoiding an unmarked car does not support an inference of criminal activity.
    -7-
    No.16-3406 & 19-0886 (consolidated)
    See People v. Craine, 
    2020 IL App (1st) 163403
    , ¶¶ 33-47; People v. Rockey, 
    322 Ill. App. 3d 832
    ,
    838 (2001).
    ¶ 21   Because the officers acknowledged that the Nissan probably had nothing to do with the
    shots on Hoxie Avenue, those shots do not justify the seizure. Parking in the driveway of a “house
    known for shooting” does not justify an investigatory stop or the seizure. McClendon and Poe
    remained on the small porch after Cadichon pointed his gun at them and ordered them to stop.
    According to Cadichon’s testimony, which the trial court found credible, McClendon stepped to
    the couch on the porch, about one or two feet from where McClendon stood. McClendon and Poe
    submitted to the officers’ authority, completing the seizure before McClendon, according to
    Cadichon, dropped the gun. The temporal proximity, the lack of intervening circumstances, and
    the lack of justification for the seizure all show that the abandonment resulted from the illegal
    seizure. Cadichon had no reasonable articulable suspicion for the warrantless seizure of
    McClendon and Poe. We find Cadichon illegally seized McClendon and Poe when he pointed his
    gun at them and ordered them to stay.
    ¶ 22   McClendon argues that his trial counsel provided ineffective assistance (1) by failing
    impeach Officer Cadichon and attack his credibility and (2) by failing to argue that the illegal
    seizure required suppression of the gun and McClendon’s purported statements as fruit of the
    poisonous tree. Under the fruit of the poisonous tree doctrine, the court must suppress any evidence
    obtained by exploiting an illegal seizure. Henderson, 
    2013 IL 114040
    , ¶ 33. The trial court should
    have suppressed the gun and testimony about statements to police unless “the chain of causation
    proceeding from the unlawful conduct has become so attenuated or has been interrupted by some
    -8-
    No.16-3406 & 19-0886 (consolidated)
    intervening circumstance so as to remove the ‘taint’ imposed upon that evidence by the original
    illegality.” (Internal quotation marks omitted.) 
    Id.
    ¶ 23   The sixth amendment to the United States Constitution (U.S. Const., amend. VI) guarantees
    those accused of crime the right to the effective assistance of counsel. People v. Cole, 
    2017 IL 120997
    , ¶ 22. To prevail on an ineffective assistance claim, a defendant must establish that
    (1) “counsel’s performance was objectively unreasonable under prevailing professional norms”
    and (2) “there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result
    of the proceeding would have been different.’ ” People v. Cathey, 
    2012 IL 111746
    , ¶ 23 (quoting
    Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984)). Courts will disturb a conviction based on
    ineffective assistance of counsel if the totality of counsel’s conduct indicates actual incompetence.
    A reasonable probability of a different result is a probability sufficient to undermine confidence in
    the outcome of the proceedings. Strickland, 
    466 U.S. at 694
    .
    ¶ 24   The State argues that McClendon’s abandonment of the gun purges the evidence of the
    taint of the illegal seizure. The State compares this case to California v. Hodari D., 
    499 U.S. 621
    (1991). Our supreme court in Henderson explained Hodari D.:
    “In Hodari D., two officers were on patrol when they noticed four or five
    youths huddled around a parked car. As the officers’ car approached, the youths,
    including Hodari, panicked and took flight. Immediately prior to one of the officers
    tackling Hodari, he tossed away a small rock of crack cocaine, which police
    recovered. In the subsequent juvenile proceeding, Hodari moved to suppress the
    drug evidence. The court denied the motion, but the California Court of Appeal
    reversed, holding that Hodari was seized when he saw the officer running toward
    -9-
    No.16-3406 & 19-0886 (consolidated)
    him; this seizure was unreasonable under the fourth amendment; and the evidence
    of cocaine had to be suppressed as the fruit of that illegal seizure. Hodari D., 
    499 U.S. at 623
    . The California Supreme Court denied review. On certiorari, the United
    States Supreme Court reversed and remanded. 
    Id. at 629
    .
    The narrow question before the Court was ‘whether, with respect to a show
    of authority, as with respect to application of physical force, a seizure occurs even
    though the subject does not yield.’ 
    Id. at 626
    . The Court held it does not. 
    Id.
     The
    Court reasoned that, assuming the officer’s pursuit of Hodari constituted a show of
    authority enjoining him to halt, because Hodari did not submit to that show of
    authority, he was not seized within the meaning of the fourth amendment. Thus, the
    cocaine Hodari abandoned while running from police was not the fruit of a seizure,
    and his motion to suppress evidence of the cocaine was properly denied.”
    Henderson, 
    2013 IL 114040
    , ¶¶ 38-39.
    ¶ 25   Hodari D. establishes that the abandonment of property prior to an illegal seizure permits
    the admission into evidence of the abandoned property. Hodari D. does not disturb the underlying
    principle: “While it is true that a criminal defendant’s voluntary abandonment of evidence can
    remove the taint of an illegal stop or arrest [citation], it is equally true that for this to occur the
    abandonment must be truly voluntary and not merely the product of police misconduct.” United
    States v. Beck, 
    602 F.2d 726
    , 729-30 (5th Cir. 1979). Hence, property is not voluntarily abandoned
    when the abandonment is in response to, or the result of, the unlawful conduct by police. See
    Gordon v. State, 
    4 S.W.3d 32
    , 37-38 (Tex. App. 1999) (holding that defendant’s dropped packet
    of cocaine in a patrol car following an illegal seizure was inadmissible because defendant
    - 10 -
    No.16-3406 & 19-0886 (consolidated)
    abandoned the cocaine in response to the illegal seizure); see also Wingate v. State, 
    764 S.E.2d 833
    , 838 (Ga. 2014) (finding where there is an illegal seizure that caused defendant to abandon
    drugs in a high school office, the drugs were inadmissible as the product of the illegal seizure). In
    both Gordon and Wingate, the defendant’s lack of an ownership interest in the police car or the
    high school office had no bearing on the admissibility of the abandoned objects.
    ¶ 26   The Supreme Court of Florida aptly summarized the case law:
    “In all of the above cases, the defendant was stopped illegally, submitted to
    the officer’s show of authority, and dropped contraband before it could be
    discovered on his person. Because the initial detention was illegal and the defendant
    was in fact seized, the court in each case suppressed the fruit of the illegal detention,
    as the contraband was not voluntarily abandoned. *** Hodari does not change this
    analysis because that case does not deal with the situation of a person being seized
    and then abandoning something, but rather with a person abandoning something
    before being seized. Nowhere in the Hodari opinion does the Court imply that
    evidence discarded by a defendant during an actual seizure should not be
    suppressed if that seizure is illegal.” Hollinger v. State, 
    620 So. 2d 1242
    , 1243 (Fla.
    1993).
    ¶ 27   In this case, McClendon and Poe remained on the small porch after Cadichon pointed his
    gun at them and ordered them to stop. According to Cadichon’s testimony, which the trial court
    found credible, McClendon stepped to the couch on the porch, about one or two feet from where
    McClendon stood. McClendon and Poe submitted to the officers’ authority, completing the seizure
    before McClendon, according to Cadichon, dropped the gun.
    - 11 -
    No.16-3406 & 19-0886 (consolidated)
    ¶ 28   To determine whether the drop resulted from illegal police conduct, the court examines
    several factors, including the temporal proximity, lack of intervening circumstances, and lack of
    justification for the seizure. Here, the only reason the police officers were in the area was to
    effectuate an illegal arrest and search, as there was no evidence that McClendon had committed a
    crime. McClendon abandoned the gun in response to his illegal seizure, and the gun and the fruits
    of the ensuing arrest should have been suppressed. See Craine, 
    2020 IL App (1st) 163403
    , ¶ 58. If
    defense counsel had appropriately argued that the illegal seizure made ownership of the porch
    irrelevant to the motion to suppress, the trial court should have granted the motion to suppress the
    gun.
    ¶ 29   The court also should have suppressed McDermott’s testimony about any statements
    McClendon made in the interview in the police station. According to McDermott, McClendon
    made the statements before midnight on October 10, 2014, less than an hour after McDermott first
    heard the report of gunfire on Hoxie Avenue. The discovery of the gun, as the fruit of an illegal
    seizure, does not break the causal chain from the seizure to the statements. See People v. Vought,
    
    174 Ill. App. 3d 563
    , 573 (1988).
    ¶ 30   Without the gun and statements that the trial court should have suppressed, the State had
    no evidence to present against McClendon. We adopt the reasoning of Bloxton, 
    2020 IL App (1st) 181216
    , ¶ 30:
    “[H]ad the suppression motion been granted, the gun would have been excluded from
    evidence. Had the gun been excluded, [the defendant] could not have been convicted ***.
    Thus, [the defendant] was prejudiced by his attorney’s failure to raise the proper argument.
    Further, the State would be unable to proceed without the suppressed evidence.”
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    No.16-3406 & 19-0886 (consolidated)
    We also find Craine instructive, in finding that since “the fruits of the officers’ search must be
    suppressed, the State would not be able to convict defendant on remand.” Craine, 
    2020 IL App (1st) 163403
    , ¶ 59; see also People v. Lopez, 
    2018 IL App (1st) 153331
    , ¶ 38; People v. Green,
    
    358 Ill. App. 3d 456
    , 463-64 (2005).
    ¶ 31   Rather than returning the case to the trial court for reconsideration of the meritorious
    motion to suppress, the appellate court in Bloxton, Craine, Lopez, and Green reversed the
    conviction and vacated the sentence without remand. Here, we also reverse the conviction and
    vacate the sentence without remand. Because we reverse the conviction based on suppression of
    evidence, we need not reach McClendon’s remaining arguments, and our resolution of the direct
    appeal moots the appeal from the dismissal of the postconviction petition.
    ¶ 32                                   III. CONCLUSION
    ¶ 33   McClendon has shown that if his attorney had argued the illegal seizure required
    suppression of the gun and testimony about statements obtained as a result of the illegal seizure,
    the trial court should have granted the motion to suppress. Without the gun and the testimony about
    statements, the State had no case to present against McClendon. Accordingly, we reverse the
    conviction and vacate the sentence.
    ¶ 34   Reversed; sentence vacated.
    - 13 -
    No.16-3406 & 19-0886 (consolidated)
    No. 3-20-0234
    Cite as:                    People v. Harris, 
    2022 IL App (3d) 200234
    Decision Under Review:      Appeal from the Circuit Court of Peoria County, No. 17-CF-977;
    the Hon. Paul P. Gilfillan, Judge, presiding.
    Attorneys                   James E. Chadd, Thomas A. Karalis, and Drew Charles Parsons,
    for                         of State Appellate Defender’s Office, of Ottawa, for appellant.
    Appellant:
    Attorneys                   Jodi Hoos, State’s Attorney, of Peoria (Patrick Delfino and
    for                         Thomas D. Arado, of State’s Attorneys Appellate Prosecutor’s
    Appellee:                   Office, of counsel), for the People.
    - 14 -