IL: IAC where defendant would have won nonappealed search issue

Defense counsel was ineffective in not appealing a valid motion to suppress that had been denied by the trial court but, on the merits, would have been reversed. Going to the merits of the search and seizure claim, defendant would have won on appeal because his stop in a residential area at 5 am was based on a 911 call and he was doing nothing suspicious. People v. Shipp, 2015 IL App (2d) 130587, 2015 Ill. App. LEXIS 253 (April 8, 2015):

[*P37] Here, the facts are very much like those in Kipfer. Defendant was walking in a residential area at 5 a.m. Although he clearly wanted to continue on his way, he was not showing signs of attempting to flee the area, and he was not otherwise behaving suspiciously. Thus, the police had no reason to believe that he was involved in a crime.

[*P38] Although here, unlike in Kipfer, the police were responding to a report of a crime, the same result obtains. In People v. Linley, 388 Ill. App. 3d 747, 903 N.E.2d 791, 328 Ill. Dec. 131 (2009), an officer was dispatched to investigate gunfire at a late hour and encountered the defendant in the area. We applied Kipfer and invalidated the stop, noting that a defendant’s “[p]resence in a residential area—even one known as the site of frequent criminal activity—at a late hour is not enough to warrant an investigatory stop.” Id. at 752.

[*P39] It is true that a 911 call carries some degree of reliability. Id. at 750-51. Nevertheless, here, the callers did not identify defendant as a person involved or distinguish him from a resident or legitimate visitor to the area. Cf. Navarette v. California, 572 U.S. __, __, 134 S. Ct. 1683, 1692, 188 L. Ed. 2d 680 (2014) (police validly stopped truck matching 911 caller’s description). As there were no facts to tie defendant to the report of criminal activity, the stop was improper.

[*P40] B. The Attempted Frisk

[*P41] Defendant also argues that, aside from the validity of the stop, the attempt to frisk was unreasonable. We agree.