Opinion
No. 1-16-1522
02-13-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEDERICK WALKER, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 15 CR 11953 Honorable Vincent M. Gaughan, Judge Presiding. JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment. ORDER ¶ 1 Held: The judgment of the circuit court of Cook County is affirmed; the trial court properly denied defendant's motion to suppress evidence seized from a backpack which defendant dropped out of a window of an apartment while police were executing an order of possession because defendant abandoned the backpack and had no protectable privacy interest in it; and defendant's trial attorney was not ineffective in failing to elicit during the hearing on the motion to suppress the fact the place where defendant dropped the backpack was not accessible by the public because that fact would have made no difference in the outcome; defendant's fines, fees, and costs order is modified to reflect presentence incarceration credit for defendant's fines. ¶ 2 The State charged defendant, Cederick Walker, with four counts of unlawful use of a weapon by a felon (UUWF) based on his possession on July 15, 2015, of two handguns and two boxes of ammunition after having previously convicted of a felony. Before trial defendant filed a motion to suppress evidence police seized on July 15, 2015. Following a hearing, the trial court denied the motion and the matter proceeded to a trial before a jury. The jury found defendant guilty of UUWF based on possession of two handguns. The trial court sentenced defendant to 39 months' imprisonment on each count to be served concurrently. The trial court denied defendant's posttrial motions. This appeal followed.
¶ 3 BACKGROUND
¶ 4 On July 15, 2015, four Cook County Sheriff's Deputies went to a multiunit building in Chicago to enforce a court-ordered eviction at the apartment of Lateafa Webb. The landlord let the deputies into the building and gave the deputies a key to the apartment located on the first floor. The deputies knocked at the door, but no one answered. Deputies used the key provided by the landlord to enter the apartment. Once inside, deputies encountered Lateafa Webb in the front room and then encountered defendant in a center bedroom. The encounter with defendant led to the discovery of the contraband that is the basis of the charges against defendant. ¶ 5 At the hearing on the motion to suppress evidence, Cook County Sheriff's Deputy Manuel Figueroa testified that on July 15, 2015, he was working with three other deputies to enforce a court ordered eviction. After the deputies entered the apartment and were met by Webb, they asked Webb if there was anyone else in the apartment. Deputy Figueroa testified Webb told him that her son was in the back bedroom. Deputy Figueroa and his partner, Deputy Chris Kolasa, proceeded to the back bedroom where Figueroa saw "[a] male defendant later identified as Cederick Walker dropping a black bag out the window." When Deputy Figueroa first saw defendant, defendant was standing by the window and Figueroa could see the bag. Deputy Figueroa saw defendant drop the bag then told defendant to step away from the window. Deputy Figueroa testified defendant was instructed to go with Deputy Kolasa to the front room and defendant complied. Deputy Figueroa then opened the window and looked out where he saw a black bag on the ground below the window. He then called Deputy Jones to watch the bag while Figueroa went to retrieve it. Deputy Figueroa went outside, opened the bag, and saw two handguns, two boxes of ammunition, a can of WD-40, and a rag. Deputy Figueroa radioed Deputy Kolasa and told Kolasa what he found, and Deputy Kolasa arrested defendant. On cross-examination Deputy Figueroa testified defendant was not listed as a tenant of the residence. Deputy Figueroa testified that when he is doing a court ordered eviction only tenants are allowed to take property from the residence. He testified that if anyone else wants to take an item out of the residence, "we have to check and make sure there's nothing there that's a danger to the public and make sure that it's their personal property." Deputy Figueroa testified that he opened the bag to "make sure there was no contraband of any type, weapons, drugs, any type of bombs or anything, anything dangerous to the public." Deputy Figueroa agreed he was concerned about the safety of the public based on the fact defendant was reaching out the window to get rid of the property after the deputies announced themselves as law enforcement officers. ¶ 6 Following arguments, the trial court ruled as follows:
"THE COURT: First of all, what we have to look at, did the deputies have a right to be in the place where they were. They had a court order for eviction. Certainly, they had a right to be in that apartment.
The observations that were made by Deputy Figueroa were that [defendant] was dropping a bag out the window. Once the bag went out the window, there is no Fourth Amendment rights or privileges there. The Fourth Amendment doesn't apply.
Therefore, your motion to quash arrest and suppress evidence is denied."¶ 7 At trial, Deputy Figueroa testified the apartment had three bedrooms and he encountered defendant in the center bedroom. Deputy Figueroa testified that when he went to the center bedroom the door to the bedroom was open and he could see inside. Before he entered the bedroom, Deputy Figueroa saw defendant dropping a black bag out the window. Defendant's right arm was out of the window and defendant was holding vertical blinds covering the window open with his arm and back. Deputy Figueroa testified defendant dropped the bag as he was entering the bedroom, and once Deputy Figueroa entered the room defendant shut the window. Deputy Figueroa told defendant to step away from the window and instructed defendant to go with Deputy Kolasa, Deputy Figueroa's partner, to the living room. Deputy Figueroa testified consistently with his testimony at the hearing on the motion to suppress that he then opened the window, looked outside, and saw the black bag defendant dropped lying on the ground. Deputy Figueroa had his partner watch the bag while he went outside, opened the bag, and secured the weapons inside the bag and the ammunition. Deputy Figueroa identified three photographs of the apartment and the area outside where the bag was recovered. On cross-examination Deputy Figueroa testified the building where they were enforcing the eviction had three apartment units. On re-direct examination, Deputy Figueroa testified that he did not see anyone running away or anyone else outside. He stated it "was in a closed area. It was fenced in." Deputy Jones also testified at trial that when Deputy Figueroa called her into the bedroom, she moved the vertical blinds to the side with her hand, looked out the window, and saw a black backpack on the ground. Deputy Jones described the area where the backpack was as "a grassy area, fenced in along the side of the building." ¶ 8 The parties stipulated to defendant's prior felony conviction. ¶ 9 Webb testified for the defense, in pertinent part, that after she told the deputies that defendant was in the bedroom, she watched as the deputies went toward the bedroom. Webb testified that as the deputies approached defendant's bedroom, she could see defendant sitting on the floor putting on his boot. She then saw defendant come out of the bedroom to the front room and put on his other boot. ¶ 10 The jury found defendant guilty of two counts of UUWF. ¶ 11 The defense filed a motion for a new trial, which the trial court denied. Following a sentencing hearing, the court sentenced defendant to 39 months' imprisonment on each count with the sentences to run concurrently. The defense filed a motion to reconsider the sentence, which the trial court denied. ¶ 12 This appeal followed.
¶ 13 ANALYSIS
¶ 14 On appeal, defendant argues (1) the trial court erred in denying his motion to suppress the evidence seized from his backpack and (2) the order imposing fines and fees should be corrected.
¶ 15 (1) Motion to Suppress
¶ 16 "On a motion to suppress evidence, the defendant has the burden of proving the search and seizure were unlawful ([citations]), and a trial court's decision will not be reversed unless it is manifestly erroneous. [Citation.]." People v. Ellis, 241 Ill. App. 3d 1034, 1042 (1993). "[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view." United States v. Ross, 456 U.S. 798, 822-23 (1982). "Citizens have recognized expectations of privacy in their belongings and the containers in which those belongings are kept. [Citations.]" People v. Carpenter, 228 Ill. 2d 250, 270 (2008). "The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.' Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? [Citation.]" California v. Ciraolo, 476 U.S. 207, 211 (1986). "In reviewing a trial court's ruling on a motion to quash arrest and suppress evidence, this court applies a two-part standard of review. [Citation.] We accord great deference to the trial court's factual findings and will reverse them only if they are against the manifest weight of the evidence; however, we review the trial court's ultimate ruling on the motion de novo. [Citation.]" People v. Dailey, 2018 IL App (1st) 152882, ¶ 16. ¶ 17 On appeal, defendant argues his interest in the backpack was protected by the fourth amendment and the search of the backpack was unlawful absent an exception to the fourth amendment's warrant requirement. Defendant argues the trial court erred in finding defendant lost his fourth amendment interest in the backpack after dropping it out of the bedroom window, and the State failed to prove the search of the backpack was justified by a recognized exception to the warrant requirement. In support of his argument he had a fourth amendment interest in the backpack even after he dropped it out of the window, defendant argues, in part, that the factors the court examines to determine whether a person has a legitimate expectation of privacy weigh in favor of finding defendant had a legitimate expectation of privacy in the backpack after he dropped it out the window.
"This court has identified several factors to be considered in determining whether a defendant has a legitimate expectation of privacy in the place searched or the property seized: (1) property ownership, (2) whether the defendant was legitimately present in the area searched, (3) the defendant's possessory interest in the area searched or the property seized, (4) prior use of the area searched or property seized, (5) ability to control or exclude others' use of the property, and
(6) a subjective expectation of privacy in the property. [Citation.] The question of whether one has a legitimate expectation of privacy such that he can claim the protection of the fourth amendment is to be answered in light of the totality of the circumstances of the particular case. [Citation.] It is the defendant's burden to establish that he had a legitimate expectation of privacy that was violated by the challenged search. [Citation.]" People v. Rosenberg, 213 Ill. 2d 69, 78 (2004).Specifically as to the expectation of privacy factors stated in Rosenberg, defendant argues he and his mother had possession of the apartment prior to the arrival of the deputies, he asserted control over the backpack by dropping it out the window and out of the reach of the deputies, and the backpack is the type of enclosed space used to store personal belongings which are "frequently the objects of the 'highest privacy expectations.' " The State responds defendant lacked a possessory interest in the fenced-in area where the backpack was dropped, that area was not a storage area for defendant's other property, and defendant would have been unable to prevent other tenants from accessing that area or the backpack once he dropped it there. ¶ 18 Turning to the "expectation of privacy" factors, there is no dispute defendant was legitimately in the apartment when police arrived. Defendant had a possessory interest in the backpack when he possessed it; but the question is defendant's fourth amendment interest in the bag after he dropped it from the window. Defendant presented no evidence of his prior use of the backpack or the fenced-in area where he dropped it, no evidence of his ability to control or exclude others from the use of the backpack or the area where he dropped it—although from the evidence it is reasonable to infer the area was accessible by other tenants, and defendant did not testify to his subjective expectation of privacy in the backpack. We find that an application of the factors stated in Rosenberg does not aid in our disposition of this appeal because those factors do not inform the question of whether defendant maintained a reasonable expectation of privacy in the backpack once he dropped it from the window. The question raised is whether defendant abandoned the backpack for fourth amendment purposes and thus lost any expectation of privacy in the backpack.
"Fourth amendment protection against an unreasonable search and seizure does not extend to abandoned property because the possessor's right of privacy in the property has been terminated. [Citations.] Property is considered abandoned when an individual drops it to the ground or leaves it behind in a public place. [Citations.] Consequently, abandoned property may be searched and seized absent probable cause. [Citation.] Abandonment will not be found simply where a defendant relinquishes possession or control of an object; rather, the circumstances must demonstrate that the defendant retained no expectation of privacy therein. [Citations.]" People v. Novakowski, 368 Ill. App. 3d 637, 641 (2006).¶ 19 In support of his argument defendant did retain an expectation of privacy in the backpack after he dropped it from the window, defendant argues that he dropped the bag from the window as he was vacating the apartment rather than leaving it behind, he zippered the bag closed to make its contents private, and dropping the bag from the window was a further effort to keep the contents of the bag private. The State responds defendant's act of dropping the bag out the window then closing the window was "an obvious gesture toward distancing himself from the bag." The State also argues that the fact defendant waited until deputies entered the apartment before dropping the bag out the window is indicative of abandonment in that defendant only got rid of the backpack when he was about to be discovered in possession of contraband. In reply, defendant argues he "dropped his zippered bag into a fenced-in area inside an apartment common area just below his bedroom window in an attempt to keep his property private from the police." ¶ 20 Based on the record before us we cannot say the trial court's decision that defendant abandoned the backpack when he dropped it from the window is manifestly erroneous. The State cites People v. London, 358 Ill. App. 3d 567, 573 (2005), to support its argument that abandonment is a question of intent and the absence of any testimony by defendant makes it "almost impossible to find a privacy interest." In London, the court wrote as follows:
"Abandonment is primarily a question of intent, inferred from words, objective facts, and other conduct. [Citation.] Where, as in this case, the defendant chooses not to testify, the defendant's subjective intent becomes very difficult to discern. In an analogous factual situation, the Seventh Circuit Court of Appeals found that without an affidavit or testimony from the defendant it is almost impossible to find a privacy interest because this interest depends, in part, on the defendant's subjective intent and his actions that manifest that intent. [Citation.]" London, 358 Ill. App. 3d at 573.In this case, defendant did not testify as to his subjective intent with regard to the backpack. Defendant did not testify that he dropped the bag from the window with the subjective intent to retrieve it later (although his argument necessarily asks this court to infer that he did). The evidence of defendant's actions nor the circumstances necessarily manifest an intent to drop the backpack out of the window for the purpose of removing it from the apartment during the eviction to be retrieved by the defendant, and the trial court's finding to the contrary is not against the manifest weigh of the evidence. See United States v. Soto-Beniquez, 356 F.3d 1, 36 (1st Cir. 2003) ("Once Fernández-Malavé abandoned the weapon and drugs by throwing them out of the window, he had no reasonable expectation of privacy in those items and their seizure did not itself violate his Fourth Amendment rights."). ¶ 21 Despite defendant's failure to testify in this case, in Novakowski this court found that "abandonment is objectively determined; therefore, the result would not differ had defendant testified that he intended to later reclaim the backpack." Novakowski, 368 Ill. App. 3d at 642. In Novakowski, the defendant, upon seeing a police officer, dropped the backpack he was carrying next to a tree, crossed the street, and walked toward the officer. Id. at 638. The officer questioned the defendant and the defendant was evasive and appeared to be nervous. Id. A subsequent search of the backpack revealed contents suspected to be stolen, and a later investigation revealed that the contents were the proceeds of a residential burglary. Id. at 638-39. The court held that the "defendant's actions demonstrated a voluntary relinquishment of the backpack and any expectation of privacy therein." The court noted that any passerby "could have easily taken or accessed the backpack, because it remained openly visible in a public place" and the defendant "never demonstrated any concern or intention to protect it as his own." Id. at 641-42. ¶ 22 Similarly, in this case, the facts objectively demonstrate "a voluntary relinquishment of the backpack and any expectation of privacy therein." Novakowski, 368 Ill. App. 3d at 642. Defendant dropped the backpack to a place where anyone could have easily taken or accessed the backpack. We are not persuaded that the fact the area where defendant dropped the backpack was fenced in is evidence that defendant did not intend to abandon the backpack. Deputy Jones testified that Deputy Figueroa exited the apartment and went out to the fenced-in area in less than a minute. It is reasonable to infer from his testimony that any resident of the building had access to that area. Thus, at minimum, any tenant or guest in the building could have similarly accessed the backpack or taken it. See United States v. Lewis, 227 F. Supp. 433, 436 (S.D.N.Y. 1964) (holding seizure of package containing heroin, which officer observed thrown from window of apartment building, did not violate the fourth amendment where "[w]hatever rights defendant had in these areas was simply to use them in common with other tenants and such members of the public as had business there"). See also People v. Martin, 2017 IL App (1st) 143255, ¶ 20 ("Of note, Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. [Citations.]"). Further, defendant did not demonstrate any concern or intention to protect the backpack as his own. See id. Defendant dropped the backpack then closed the window, indicating a lack of concern for the backpack. Additionally, when instructed to leave the room with the other deputy, defendant did not express any concern for his property that was now accessible by anyone in the building. See People v. Clodfelder, 176 Ill. App. 3d 339, 344 (1988) (holding the trial court could have concluded the defendant, who left property along a railroad embankment approximately 100 yards from place he encountered police, "had no expectation to preserve privacy as to those items" where the defendant did not say anything "to the awaiting officers concerning any such intention or any intention to protect that property"). ¶ 23 The trial court's finding that defendant abandoned the backpack is not manifestly erroneous. Defendant's right of privacy in the backpack was terminated; therefore, the search of the backpack was proper. Novakowski, 368 Ill. App. 3d at 641-42. We reject defendant's argument his trial counsel was ineffective in failing to elicit testimony that defendant dropped the backpack in a fenced-in area adjacent to the building which, defendant asserts, was not accessible to the general public. Defendant argues that had counsel advanced this argument or renewed the motion to suppress when photographs of the area were admitted at trial, there is a reasonable probability the trial court would not have found defendant abandoned his interest in the backpack when he dropped it from the window. We disagree. Supra, ¶ 22 (citing United States v. Lewis, 227 F. Supp. 433, 436 (S.D.N.Y. 1964)). Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App (1st) 143255, ¶ 20. To establish a claim of ineffective assistance of counsel, a defendant "must prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. [Citations.]" People v. Mahaffey, 165 Ill. 2d 445, 458 (1995). Because defendant cannot establish that but for counsel's alleged error the outcome of the proceeding would have been different, defendant's claim of ineffective assistance of counsel fails. Mahaffey, 165 Ill. 2d at 465.
On review of a trial court's ruling on a motion to suppress, "a reviewing court may consider the evidence presented at trial in addition to the evidence presented during the prior suppression hearing." People v. Gomez, 2018 IL App (1st) 150605, ¶ 18.
¶ 24 (2) Fines and Fees
¶ 25 Defendant argues the order of fines and fees against him contains one improper charge, states the incorrect number of days of presentence incarceration credit for which defendant is entitled $5 per day credit against his fines (the correct total being 286 days), and that credit should offset certain fines that are incorrectly labeled as fees on the order. Specifically, defendant asserts the trial court erroneously imposed a $5 Court System fee because that fee is only applicable to violations of the Illinois Vehicle Code and that this court has held the State Police Operations "Fee" and the Court System "Fee" (55 ILCS 5/5-110(c)) are actually fines subject to credit from presentence incarceration. The State concedes that the $5 Court System Fee was imposed improperly and that the State Police Operations "Fee" and the Court Operations "Fee" (55 ILCS 5/5-110(c)) are actually fines to which defendant's presentence credit applies. ¶ 26 Defendant further argues that the following "fees" are actually fines that should be satisfied by his presentence incarceration credit: Felony Complaint Filed, Document Storage, Clerk Automation, Public Defender Automation, State's Attorney Automation, Arrestee's Medical Costs Fund, and Probation and Court Services Operations. The State disagrees and argues these are "fees" that cannot be offset by the presentence incarceration credit. Defendant failed to raise these issues below, but "we can review whether the assessments against him were properly considered fees as plain error." People v. Mullen, 2018 IL App (1st) 152306, ¶ 26. The Mullen court also held that "claims for appropriate presentence incarceration credit are not subject to forfeiture because our supreme court has made clear that claims for such credit under section 110-14 of the Code may be raised 'at any time and at any stage of the court proceedings, even on appeal in a postconviction petition.' [Citation.]" Id. ¶ 26. "We review the propriety of a trial court's imposition of fines and fees de novo. [Citation.]" People v. Reed, 2016 IL App (1st) 140498, ¶ 13. ¶ 27 In People v. Tolliver, 363 Ill. App. 3d 94 (2006), this court held that the charges for the filing of the felony complaint, the clerk's automation, and document storage fees "are compensatory and a collateral consequence of [a] defendant's conviction, and as such, are considered 'fees' rather than 'fines.' Accordingly, the credit stated in section 110-14 of the Code cannot be applied against these assessments." Tolliver, 363 Ill. App. 3d at 97. In People v. Brown, 2017 IL App (1st) 142877, ¶ 81, this court noted that Tolliver considered that a fee is compensatory in nature while a fine is a pecuniary punishment imposed as part of a criminal sentence, and we followed Tolliver to hold "the automation and document storage charges are fees and cannot be offset by presentence custody credit." Brown, 2017 IL App (1st) 142877, ¶ 81. In People v. Bingham, 2017 IL App (1st) 143150, vacated on other grounds, this court reaffirmed that "the charge imposed on a defendant for the filing of a felony complaint is a fee, not a fine and, therefore, the $5 per day presentence incarceration credit provided for in section 110-14(a) of the Code does not apply. [Citation.]" Bingham, 2017 IL App (1st) 143150, ¶ 42. In People v. Clark, 2018 IL 122495, ¶ 34, our supreme court found "that the $190 'Felony Complaint Filed, (Clerk)' charge is a fee not subject to the presentence incarceration credit." The Clark court also found "that the $15 court automation charge is a fee not subject to the presentence incarceration credit." Clark, 2018 IL 122495, ¶ 41. Finally, our supreme court held "the $15 Court Document Storage Fund charge is a fee not subject to the presentence incarceration credit." Id. ¶ 49. ¶ 28 The Brown court also found that the State's Attorney's Record Automation Fee and the Public Defender's Records Automation Fee are indeed fees and as such may not be offset with presentence custody credit. Brown, 2017 IL App (1st) 142877, ¶¶ 76, 78. See also Reed, 2016 IL App (1st) 140498, ¶¶ 16, 17 (holding State's Attorney Records Automation Fee and Public Defender Records Automation Fee are compensatory and, thus, "fees" for which a defendant is not entitled to per diem credit); People v. Bowen, 2015 IL App (1st) 132046, ¶ 65. Our supreme court recently held "the Public Defender Records Automation Fund fee is a compensatory fee and not a fine subject to the presentence incarceration credit." Clark, 2018 IL 122495, ¶ 22. The Clark court also held that "automating the state's attorney's record keeping system is a cost related to prosecuting defendants, and this charge is a compensatory fee. As a fee, it is not subject to [a] defendant's presentence credit." Id. ¶ 27. ¶ 29 In Mullen, 2018 IL App (1st) 152306, ¶ 51, this court noted that this district has found that the Arrestee's Medical Costs Assessment "is a fee." This court also noted that "even if it were a fine, following the reasoning in [People v.] Warren, [2016 IL App (4th) 120721-B,] it would not be subject to offset under section 110-4." Mullen, 2018 IL App (1st) 152306, ¶ 52. The Mullen court also held that the plain language of the statute imposing the Probation/Court Services Assessment "suggests that the legislature intended this assessment to be a fee." Mullen, 2018 IL App (1st) 152306, ¶ 55. This court also found that cases from the Fourth District of the court holding that this assessment should be considered a fee provided a rational interpretation of the legislative intent. Id. ¶ 56. We agree. We also find that defendant has not brought new matter to this court's attention that would persuade it to depart from these well-established precedents. ¶ 30 We hold the $2 Public Defender Records Automation Fee, the $2 State's Attorney Records Automation Fee, the $190 Felony Complaint Filed Fee, the $25 Clerk Automation Fee, the $25 Document Storage Fee, the $10 Arrestee's Medical Costs Fund Fee, and the $10 Probation and Court Services Operations Fee are not subject to offset by defendant's presentence incarceration credit. Accordingly, we direct the clerk of the circuit court to modify the fines, fees, and costs order to remove the $5 Court System charge, leaving a total fines and fees of $484; to reflect that defendant is entitled to $5 per day for 286 days of presentence incarceration credited against his fines; and to apply defendant's presentence credit against the $15 State Police Operations "Fee" and the $50 Court System "Fee."
¶ 31 CONCLUSION
¶ 32 For the foregoing reasons, the circuit court of Cook County is affirmed, and the fines, fees, and costs order is corrected. ¶ 33 Affirmed; fines, fees, and costs order corrected.