IL: For an IAC claim to succeed, the underlying claim must be meritorious, not just likely to succeed

For a search and seizure IAC claim to succeed, the underlying claim must be meritorious, not just likely to succeed. Not filing a motion to suppress may be trial tactics, and, here, the question was whether there was probable cause, and there was. People v. Kornegay, 2014 IL App (1st) 122573, 2014 Ill. App. LEXIS 351 (May 23, 2014):

[*P19] In a line of cases beginning with People v. Orange, 168 Ill. 2d 138, 153, 659 N.E.2d 935, 213 Ill. Dec. 589 (1995), this court has stated that, in order to establish prejudice where an ineffectiveness claim is based on the failure to file a suppression motion, the defendant must show only that a reasonable probability exists both that the motion would have been granted and that the result of the trial would have been different had the evidence been suppressed. However, later opinions have articulated a more stringent standard, stating that defendant must establish that the unargued suppression motion was “meritorious,” i.e., it would have succeeded, and that a reasonable probability exists that the trial outcome would have been different without the challenged evidence. See, e.g., People v. Harris, 182 Ill. 2d 114, 146, 695 N.E.2d 447, 230 Ill. Dec. 957 (1998); People v. Bailey, 232 Ill. 2d 285, 289, 903 N.E.2d 409, 328 Ill. Dec. 22 (2009). Indeed, in People v. Henderson, 2013 IL 114040, 989 N.E.2d 192, 370 Ill. Dec. 804, ¶ 12, our supreme court explicitly disavowed Orange, and clarified that where an ineffectiveness claim is based on counsel’s failure to file a suppression motion, in order to establish prejudice under Strickland, the defendant must demonstrate that the unargued suppression motion is meritorious and that at least a reasonable probability exists that the trial outcome would have been different had the evidence been suppressed. The Henderson standard controls in the instant case.

[*P20] We therefore turn to consider whether the unargued suppression motion in this case was meritorious. Whether or not a motion to quash a search warrant and suppress evidence should be filed in a criminal case is a matter of trial tactics and has little bearing on competency of counsel. People v. Peterson, 248 Ill. App. 3d 28, 38, 618 N.E.2d 388, 187 Ill. Dec. 797 (1993); People v. Atkins, 161 Ill. App. 3d 600, 609, 515 N.E.2d 272, 113 Ill. Dec. 463 (1987). A reviewing court will not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy. Id. The decision of whether or not to file a motion to suppress is best left to trial counsel’s discretion. Id.; People v. Bryant, 128 Ill. 2d 448, 458, 539 N.E.2d 1221, 132 Ill. Dec. 415 (1989).