{ "id": 4272783, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN RICHARDSON, Defendant-Appellant", "name_abbreviation": "People v. Richardson", "decision_date": "2007-09-21", "docket_number": "No. 1-04-3686", "first_page": "612", "last_page": "629", "citations": [ { "type": "official", "cite": "376 Ill. App. 3d 612" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "847 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "219 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3598075 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-2d/219/0104-01" ] }, { "cite": "430 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. 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CALVIN RICHARDSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GALLAGHER\ndelivered the opinion of the court:\nFollowing 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 obtained when police effectuated 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\u2019s order that he provide a sample for inclusion in DNA identification databases.\nThe Illinois Supreme Court has directed us to vacate our previous Rule 23 order and reconsider this case in light of People v. Luedemann, 222 Ill. 2d 530, 857 N.E.2d 187 (2006). Because, upon reconsideration, we conclude that a motion to suppress likely would not have succeeded, we affirm defendant\u2019s conviction. We also reject defendant\u2019s additional contentions on appeal.\nBACKGROUND\nAt 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.\nChicago 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.\nOfficer 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:\n\u201cQ. When the defendant came over to your vehicle, what happened?\nA. I questioned him as to what he had in the cases and what they were.\nQ. What did he tell you?\u201d\nThe trial court sustained a defense objection to Officer Lehner\u2019s answer to that question and the officer was asked the question again:\n\u201cQ. Specifically what did he say, officer?\nA. 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\u2019s 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.\nQ. Did you ask him what kind?\nA. Yes, I did.\nQ. What did he say?\nA. He couldn\u2019t exactly state what they were. He didn\u2019t know.\u201d\nOfficer 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 \u201clike [defendant] didn\u2019t know what I was talking about.\u201d 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.\nAfter the trial court found defendant guilty of burglary, the court held a hearing on defendant\u2019s 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. 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 \u2014 4\u20143 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 4\u20143 (West 2004)).\nANALYSIS\nI. Effectiveness of Trial Counsel\nOn 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.\nTo support a claim of ineffective assistance of counsel, a defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness and, furthermore, that counsel\u2019s 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). We note that counsel\u2019s decision not to file a motion to suppress evidence involves trial strategy and therefore is generally beyond the scope of appellate review. People v. Medrano, 271 Ill. App. 3d 97, 101, 648 N.E.2d 218, 222 (1995). 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).\nDefendant argues that a motion to suppress likely would have succeeded because the officers lacked a reasonable suspicion to stop and question him and, furthermore, because the officers lacked probable cause to search the toolboxes. Moreover, defendant 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.\nThe 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. IY XIV; Ill. Const. 1970, art. I, \u00a76. Three types of police-citizen interaction are not considered seizures under the fourth amendment: (1) an arrest, which must be supported by probable cause; (2) brief investigative detentions, or Terry stops, which must be accompanied by a reasonable, articulable suspicion of criminal activity; and (3) \u201cencounters that involve no coercion or detention and thus do not implicate fourth amendment interests.\u201d Luedemann, 222 Ill. 2d at 544, 857 N.E.2d at 196.\nIn its recent opinion in Luedemann, the Illinois Supreme Court analyzed what it termed the historically \u201cimprecise\u201d classification of the third tier of police-citizen encounters as \u201ccommunity caretaking.\u201d Luedemann, 222 Ill. 2d at 544, 857 N.E.2d at 196. Abrogating its decisions in People v. White, 221 Ill. 2d 1, 21, 849 N.E.2d 406, 418 (2006), and other cases, the supreme court clarified the difference between a consensual officer-citizen encounter and a police act of \u201ccommunity caretaking,\u201d which involves the performance of a \u201ctask unrelated to the investigation of crime.\u201d Luedemann, 222 Ill. 2d at 545, 857 N.E.2d at 197; see also People v. Robinson, 368 Ill. App. 3d 963, 973-74, 859 N.E.2d 232, 243-44 (2006) (noting Luedemann\u2019s analysis and finding that a police officer\u2019s \u201cwell-being\u201d check of defendant, who was slumped over the steering wheel, was not initiated to detect, investigate or acquire evidence, and thus constituted \u201ccommunity caretaking,\u201d although the officer\u2019s subsequent observations supported DUI charge). The supreme court in Luedemann thus distinguished \u201ccommunity caretaking\u201d from a consensual encounter between a police officer and a citizen. Luedemann, 222 Ill. 2d at 548, 857 N.E.2d at 198-99.\nIn the instant case, when the officers stopped their vehicle at the curb and got out, defendant put the tool cases down on the ground and approached the officers. The parties agree that the initial contact was a consensual encounter, which does not implicate the fourth amendment. See Luedemann, 222 Ill. 2d at 544, 857 N.E.2d at 196; see also People v. Gherna, 203 Ill. 2d 165, 177, 784 N.E.2d 799, 806 (2003). \u201c[N]ot every encounter between the police and a private citizen results in a seizure.\u201d Luedemann, 222 Ill. 2d at 544, 857 N.E.2d at 196, citing Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 254, 104 S. Ct. 1758, 1762 (1984). \u201cThe fourth amendment was not intended to prevent consensual encounters between the police and citizens. Thus, a police officer may approach a person on the street and ask questions if that person is willing to listen.\u201d People v. Tate, 367 Ill. App. 3d 109, 114, 853 N.E.2d 1249, 1254 (2006).\nBefore we examine the next step of the encounter, this court wishes to clarify its previous characterization of the police officers\u2019 act of curbing their vehicle near defendant. It might be implied from this court\u2019s original order that the officers required a reasonable suspicion of criminal activity at the outset of their interaction with defendant, which suggested that defendant was seized at that point. We do not hold that the officers performed a Terry stop of defendant by pulling their car to the curb in defendant\u2019s vicinity. Indeed, such a stop would be without basis, because, as this court noted, the sight of a person walking down the street carrying toolboxes does not support an objectively reasonable suspicion of criminal activity. Rather, we focus on the conversation between defendant and the officers after the officers got out of their car.\nDefendant contends that he was seized when the officers refused to accept his initial answer that his father owned the toolboxes and that the officers did not have facts, at that time, to justify an investigatory stop. The State asserts that police questioning of a citizen does not violate the fourth amendment and that defendant\u2019s inconsistent and conflicting answers led the officer to open the boxes and study the contents, thus establishing not only reasonable suspicion but providing the officers with probable cause to arrest. The State argues that defendant\u2019s responses to Officer Lehner\u2019s questions \u201cheightened\u201d the officer\u2019s suspicions about the toolboxes, which the State points out were \u201cprofessional-grade boxes\u201d that bore a company logo.\nBecause defendant raises the issue of the requirement for a Terry stop, we set out that standard, though we do not determine such a stop initially occurred in this case. 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 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). Thus, under Terry, an officer may \u201cbriefly 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.\u201d People v. Lee, 214 Ill. 2d 476, 487, 828 N.E.2d 237, 246 (2005).\nOur attempt to accurately examine the brief encounter between defendant and the officers is limited by the facts that were presented at trial. Defendant offered inconsistent responses to the officers\u2019 questions about the contents of the toolboxes. According to Officer Lehner (the only witness presented by the State other than the complainant), defendant first stated that the tools belonged to his father. Defendant then stated that the tools belonged to a friend, and then said they were his. Defendant also was unable to explain the initials on the boxes or state what kind of tools the boxes contained. In addition, as we noted in our original order, the State presented no testimony or evidence of facts known to the officers at the outset of the conversation with defendant, such as a report of stolen tools or a physical description of a suspect.\nDefendant argues that the encounter became a seizure during the conversation when the officers\u2019 questioning persisted and, in defendant\u2019s words, became \u201caccusatory and adversarial.\u201d However, the United States Supreme Court has held that police questioning, in and of itself, does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991); Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). More precisely, the Court has stated:\n\u201c[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.\u201d Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.\nA police-citizen encounter remains consensual as long as a reasonable person would feel free \u201c \u2018to disregard the police and go about his business.\u2019 \u201d Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386, quoting California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991). Indeed, as Luedemann emphasized, \u201cthe police may do more than merely ask questions without turning the encounter into a seizure\u201d; officers may examine identification and request consent to search luggage. Luedemann, 222 Ill. 2d at 551, 857 N.E.2d at 200, citing Bostick, 501 U.S. at 434-35, 115 L. Ed. 2d at 398-99, 111 S. Ct. at 2386. See also People v. Croft, 346 Ill. App. 3d 669, 674, 805 N.E.2d 1233, 1239 (2004) (investigative questioning by police does not automatically establish that an individual is seized); People v. Erby, 213 Ill. App. 3d 657, 662, 572 N.E.2d 345, 348 (1991) (\u201c[a] person voluntarily cooperating with the police is not seized for fourth amendment purposes\u201d).\nAt oral argument upon this court\u2019s reconsideration of this case in light of Luedemann, defendant\u2019s counsel asserted that the officers should have accepted defendant\u2019s initial response to the question of what the boxes contained and to whom they belonged. In effect, defendant contends that the officers were required to accept his first answer to their inquiry and end the conversation. However, we cannot agree with defendant\u2019s position that what occurred after his first answer to the officer\u2019s questioning constituted a seizure under the fourth amendment.\nConflicting or evasive responses to police questioning can constitute probable cause to arrest the person being questioned \u201cwhen considered together with the prior suspicions.\u201d 2 W. LaFave, Search & Seizure \u00a73.6(f), at 362 (4th ed. 2004). Professor LaFave quotes United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975), in which the suspect offered different, contradictory explanations for his possession of travelers\u2019 checks, first stating that they were play money and then saying he had won them by gambling. \u201cThe court concluded that while \u2018the possession of property bearing someone else\u2019s name would not constitute probable cause,\u2019 grounds for arrest came into existence when the suspect \u2018gave two contradictory explanations.\u2019 \u201d 2 W. LaFave, Search & Seizure \u00a73.6(f) at 362 (4th ed. 2004). See also United States v. Garcia, 179 F.3d 265 (5th Cir. 1999); United States v. Tudoran, 476 F. Supp. 2d 205, 213 (N.D.N.Y. 2007) (citing numerous federal cases and discussing factors probative of the existence of probable cause, including \u201cimplausible, conflicting, evasive or unresponsive answers to questions\u201d).\nTo hold, as defendant contends, that an individual is seized after his or her first response to police questioning would be illogical in light of the cases that discuss the fourth amendment implications of conflicting responses and \u201cinvestigative questioning.\u201d Conflicting responses could not occur without the presentation of multiple inquiries, because an answer to one question cannot be described as conflicting or inconsistent unless it is compared to another answer. Likewise, what courts have termed \u201cinvestigative questioning\u201d implies repeated inquiries, not a single question and answer. Therefore, contrary to defendant\u2019s contention, an individual is not seized when a police officer asks more than one question.\nWe observe that the Supreme Court\u2019s holdings on this topic, along with the federal and state cases we have found, use the plural, as opposed to the singular, when referring to the allowable number of police inquiries that can be made before a person is considered seized under the fourth amendment. \u201cOur cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.\u201d (Emphasis added.) Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386; Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324 (quoted above). See also State v. Yoder, 935 P.2d 534, 542 (Utah App. 1997) (defendant\u2019s \u201cuncooperative, false and evasive\u201d responses taken into account); State v. Nguyen, 878 P.2d 1183, 1187 (Utah App. 1994) (\u201cfalse or evasive\u201d answers along with highly suspicious behavior may be used to establish probable cause).\nFrobable cause for an arrest exists when the facts and circumstances within the arresting officer\u2019s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested committed the offense. Ger- stein v. Pugh, 420 U.S. 103, 111-12, 43 L. Ed. 2d 54, 64, 95 S. Ct. 854, 862 (1975). \u201cProbable cause does not require evidence sufficient to convict, but it requires more than articulable suspicion.\u201d People v. Mata, 178 Ill. App. 3d 155, 161, 533 N.E.2d 370, 375 (1988).\nIt is true that, here, the officers were not even aware that a crime had been committed and thus, of course, had no description of a suspect when they saw defendant walking down the street. However, the police \u201cneed not have actual knowledge of a criminal violation before they can effect an arrest if the facts of the case give rise to a reasonable belief that a crime has been committed.\u201d Mata, 178 Ill. App. 3d at 161, 533 N.E.2d at 375 (also noting that officers \u201coften must act upon a quick appraisal of the data before them\u201d).\nOfficer Lehner testified that defendant set the toolboxes on the ground and approached the officers when he saw the police car stop near him. Defendant then gave conflicting answers to the questions asked and could not identify the contents of the toolboxes he carried. The officers did not violate the fourth amendment by asking defendant multiple questions and eliciting his voluntary answers, which were inconsistent. Such conflicting responses to police questioning, together with the totality of the circumstances, gave rise not only to a reasonable suspicion of criminal activity, but also gave the officers probable cause to arrest. Accordingly, defense counsel was not ineffective for failing to file a motion to suppress evidence, given that such a motion lacked a reasonable chance of success.\nII. Stipulated Testimony at Hearing on Defendant\u2019s Fitness for Sentencing\nAfter defendant\u2019s conviction, the trial court held a hearing on his fitness to be sentenced. The hearing consisted solely of the stipulated testimony of the State\u2019s psychiatrist that defendant was fit for sentencing with medications. Defendant now asserts that his case should be remanded for a new fitness hearing because the court was required to admonish him as to the effect of the stipulation and ascertain that defendant knew he was waiving his right to present witnesses. He contends those steps were required under People v. Campbell, 208 Ill. 2d 203, 221, 802 N.E.2d 1205, 1215 (2003), which we discuss in further detail below.\nDefendant repeatedly refers to the applicability of due process to fitness hearings, and the cases that he cites discuss due process requirements in relation to a defendant\u2019s fitness to stand trial. Due process bars the criminal prosecution or sentencing of a defendant who is not competent to stand trial. People v. Woodard, 367 Ill. App. 3d 304, 319, 854 N.E.2d 674, 689 (2006); People v. McColler, 363 Ill. App. 3d 81, 92, 842 N.E.2d 193, 202 (2005). Therefore, the same due process requirements that apply to a defendant\u2019s fitness to stand trial also apply to his fitness to be sentenced.\nWe note, however, that defendant\u2019s arguments involve a stipulation about his fitness to be sentenced, while Campbell did not involve a fitness issue. In that case, the Illinois Supreme Court addressed the ability of defense counsel to waive a defendant\u2019s sixth amendment right of confrontation by stipulating to the admission of evidence at trial. Campbell, 208 Ill. 2d at 221, 802 N.E.2d at 1215. The defendant in Campbell was charged with the residential burglary of the apartment of several college students. Campbell, 208 Ill. 2d at 207, 802 N.E.2d at 1206-07. One of the students testified at trial, and when his roommate did not appear to testify, defense counsel agreed to the roommate\u2019s stipulated testimony. Campbell, 208 Ill. 2d at 208, 802 N.E.2d at 1207-08.\nOn appeal, the defendant in Campbell argued that because defense counsel stipulated to the roommate\u2019s testimony without his knowing consent, he was denied his constitutional right to confront witnesses against him. Campbell, 208 Ill. 2d at 209, 802 N.E.2d at 1208. The defendant contended that only he, as the accused, could waive his right to confrontation. Campbell, 208 Ill. 2d at 209, 802 N.E.2d at 1208. The supreme court reviewed several federal and state cases in which defense counsel was allowed to waive a defendant\u2019s right to confrontation if the decision amounted to trial strategy and the defendant did not object to the stipulation. Campbell, 208 Ill. 2d at 215, 802 N.E.2d at 1211-12. In accordance with most of those decisions, Campbell held that the defendant must be admonished and agree to a stipulation to the admission of evidence where: (1) the stipulation includes a statement that the evidence is sufficient to convict the defendant; or (2) the State\u2019s entire case is to be presented by stipulation. Campbell, 208 Ill. 2d at 221, 802 N.E.2d at 1215. The supreme court concluded that defense counsel\u2019s stipulation to the roommate\u2019s testimony presented a reasonable explanation for the defendant\u2019s entry into the apartment, and therefore the attorney\u2019s agreement to stipulate to the testimony was trial strategy. Campbell, 208 Ill. 2d at 220-21, 802 N.E.2d at 1214-15.\nDefendant contends that Campbell was violated because his \u201centire fitness hearing\u201d was stipulated without an admonition from the court that he understood the consequences of the stipulation and agreed to waive his right to present testimony. Defendant urges this court to extend Campbell\u2019s holding to fitness hearings. He asserts that the supreme court in Campbell did not limit its decision to the guilt or innocence phase of a trial \u201cwhere a stipulation is tantamount to a guilty plea.\u201d\nIt is without question that a defendant has a fundamental right to confront witnesses against him. See Campbell, 208 Ill. 2d at 211, 802 N.E.2d at 1209-10. However, a fitness hearing \u201cis not part of the legal proceedings by which the accused\u2019s liability for an offense is determined.\u201d People v. McCullum, 66 Ill. 2d 306, 312, 362 N.E.2d 307, 310 (1977). Indeed, in urging us to follow Campbell, defendant cites no cases that involve stipulations to a defendant\u2019s fitness to either stand trial or be sentenced. We do not agree with defendant\u2019s contention that the right to confrontation discussed in Campbell applies to fitness hearings.\nFurthermore, the stipulation regarding defendant\u2019s fitness complied with the existing standard. A trial court may rely on stipulated testimony regarding a defendant\u2019s fitness, although the court cannot blindly defer to an expert\u2019s opinion. People v. Goodman, 347 Ill. App. 3d 278, 287, 806 N.E.2d 1124, 1132 (2004). \u201cThe parties may stipulate to what an expert would testify [as to a defendant\u2019s fitness], but they may not stipulate to an expert\u2019s conclusions regarding fitness.\u201d (Emphasis added.) Goodman, 347 Ill. App. 3d at 287, 806 N.E.2d at 1132; see also People v. Lewis, 103 Ill. 2d 111, 116, 468 N.E.2d 1222, 1225 (1984); People v. Greene, 102 Ill. App. 3d 639, 643, 430 N.E.2d 219, 222 (1981). Here, the parties stipulated that the psychiatrist would testify that defendant was fit for sentencing.\nIII. Constitutionality of DNA Statute\nDefendant argues that the compulsory extraction of his DNA pursuant to section 5 \u2014 4\u20143 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 4\u20143 (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\u2019s constitutionality.\nCONCLUSION\nIn summary, we hold that because a motion to suppress likely would not have succeeded, defendant\u2019s trial counsel was not ineffective. We also find defendant\u2019s remaining contentions to be unavailing. Accordingly, defendant\u2019s conviction is affirmed.\nAffirmed.\nO\u2019MARA FROSSARD, J., concurs.\nDefendant argues that he did not feel free to leave the scene after Officer Lehner \u201crefused to accept [his] initial answer as satisfactory.\u201d However, whether a reasonable person would have felt free to leave hinges on an objective evaluation of the police conduct and not on the subjective perception of the individual approached. Luedemann, 222 Ill. 2d at 551, 857 N.E.2d at 200; see also Hodari D., 499 U.S. at 628, 113 L. Ed. 2d at 698, 111 S. Ct. at 1551.\nDefendant acknowledges that he did not object to this procedure in the trial court but asks this court to consider his position under the plain error doctrine.", "type": "majority", "author": "JUSTICE GALLAGHER" }, { "text": "JUSTICE O\u2019BRIEN,\ndissenting:\nWe got it right the first time.\nI adopt our original order, which we withdrew after the supreme court issued its supervisory order, as my dissent.\nFollowing 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\u2019s 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\u2019s conviction and sentence and remand to the trial court.\nAt 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.\nChicago 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.\nOfficer 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:\n\u201cQ. When the defendant came over to your vehicle, what happened?\nA. I questioned him as to what he had in the cases and what they were.\nQ. What did he tell you?\u201d\nThe trial court sustained a defense objection to Officer Lehner\u2019s answer to that question and the officer was asked the question again:\n\u201cQ. Specifically what did he say, officer?\nA. 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\u2019s 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.\nQ. Did you ask him what kind?\nA. Yes, I did.\nQ. What did he say?\nA. He couldn\u2019t exactly state what they were. He didn\u2019t know.\u201d\nOfficer 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 \u201clike [defendant] didn\u2019t know what I was talking about.\u201d 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.\nAfter the trial court found defendant guilty of burglary, the court held a hearing on defendant\u2019s 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 \u2014 4\u20143 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 4\u20143 (West 2004)).\nANALYSIS\nI. Effectiveness of Trial Counsel\nOn 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.\nTo support a claim of ineffective assistance of counsel, a defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness and, furthermore, that counsel\u2019s 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).\nDefendant 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.\nThe 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, \u00a76. 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).\nIn 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).\nDefendant 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.\nA 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\u2019s action was: (1) justified at its inception; and (2) \u201creasonably related in scope to the circumstances which justified the interference in the first place.\u201d 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). \u201cA [Terry] stop must be objectively reasonable and predicated on specific and articulable facts that, taken together with the resulting inferences, would warrant the intrusion.\u201d 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.\nWhen the officer asked defendant \u201cwhat he had in the [tool] cases and what they were,\u201d defendant gave several inconsistent answers. The State argues that defendant\u2019s responses \u201cheightened\u201d Officer Lehner\u2019s suspicions about the toolboxes, which the State points out were \u201cprofessional-grade boxes\u201d that bore a company logo. We acknowledge that investigative Terry stops have been described as \u201cevolving encounters where new facts continually emerge, feeding into the Terry calculus and justifying police action that only moments before would have been unlawful.\u201d 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 \u2014 i.e., the inconsistent answers that defendant gave to Officer Lehner\u2019s questions and any observations the officers may have made about the characteristics of the toolboxes \u2014 and use that evidence in a \u201cbootstrap\u201d fashion to support the officer\u2019s reasonable articulable suspicion for making the stop in the first place.\nTerry allows an officer to \u201cbriefly 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.\u201d 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). \u201cViewed 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.\u201d 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 \u201cevolving encounters,\u201d 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\u2019s 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.\nThe State contends that Officer Lehner \u201cbriefly detained defendant to investigate possible criminal activity.\u201d 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\u2019 halting defendant\u2019s progress, does not justify the questioning of defendant without a reasonable suspicion of criminal activity.\nThis 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\u2019s 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 \u201cas to what factors he found significant regarding his decision to approach [the] defendant and conduct further investigation.\u201d 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.\nWe 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). \u201cNeither mistakes in trial strategy nor the benefit of another attorney\u2019s hindsight are sufficient to demonstrate that the trial lawyer was objectively incompetent.\u201d 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\u2019s inculpatory statements to police, thus depleting the whole of the State\u2019s case. Had the trial court been unable to consider the evidence obtained in the illegal search or consider defendant\u2019s statements, the result of defendant\u2019s trial clearly would have been different.\nBecause a motion to suppress had a reasonable chance of success and the trial\u2019s 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\u2019s 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\u2019s argument that, had the Terry stop been supported by reasonable suspicion, the officers lacked probable cause to search the toolboxes.\nII. Defendant\u2019s Remaining Contentions on Appeal\nA. Stipulated Testimony at Hearing on Defendant\u2019s Fitness for Sentencing\nAfter defendant\u2019s conviction, the trial court held a hearing on defendant\u2019s fitness to be sentenced. The hearing consisted solely of the stipulated testimony of the State\u2019s psychiatrist that defendant was fit for sentencing with medications. Defendant now asks this court to vacate the trial court\u2019s 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\u2019s conviction and sentence and are remanding based on our resolution of the Terry stop issue, defendant\u2019s 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\u2019s fitness to be sentenced.\nB. Constitutionality of DNA Statute\nIn addition, we note defendant\u2019s argument that the compulsory extraction of his DNA pursuant to section 5 \u2014 4\u20143 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 4\u20143 (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\u2019s constitutionality. We therefore reject defendant\u2019s contentions on this point.\nCONCLUSION\nIn 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.\nNeither party purports that the officers were performing community caretaking.", "type": "dissent", "author": "JUSTICE O\u2019BRIEN," } ], "attorneys": [ "Michael J. Pelletier and Jessica D. Pamon, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Veronica Calderon Malavia, and Andrea E. Forsyth, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN RICHARDSON, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 04\u20143686\nOpinion filed September 21, 2007.\nRehearing denied October 24, 2007.\nO\u2019BRIEN, J., dissenting.\nMichael J. Pelletier and Jessica D. Pamon, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Veronica Calderon Malavia, and Andrea E. Forsyth, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0612-01", "first_page_order": 630, "last_page_order": 647 }