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No. 2--03--0854

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Defendant, Tavares O. Mitchell, appeals his conviction of possession of a controlledsubstance with intent to deliver under the Illinois Controlled Substances Act (720 ILCS 570/401(a)(West 2002)). Defendant argues that (1) the trial court erred in denying his motion to suppress drugevidence found pursuant to a strip search; (2) his stipulated bench trial was tantamount to a guiltyplea, and the trial court failed to properly admonish him pursuant to Supreme Court Rule 402 (177Ill. 2d R. 402); (3) the evidence was insufficient to show his guilt beyond a reasonable doubt; and (4)the mittimus must be amended to reflect the correct amount of credit for time served. We reverseand remand.

I. FACTS

On January 10, 2002, Officer Rodriguez of the Kane County sheriff's office pulled over adriver he suspected of driving with a suspended license. As he walked to the car, he noted thatneither the driver nor her passenger (defendant) was wearing a seat belt. He asked defendant toidentify himself so that he could issue a seat belt citation, and defendant gave the officer a false name. Officer Wolf, who had attempted to locate defendant the previous night in order to serve two arrestwarrants on him, joined Rodriguez on the scene shortly thereafter. Wolf suspected that defendanthad given a false name and that he was actually Tavares Mitchell. After some questioning, defendantadmitted his true identity.

The officers arrested defendant pursuant to two outstanding arrest warrants, one a felonywarrant and one a misdemeanor warrant. Defendant was transported to the Kane County jail, wherehe submitted to a strip search that revealed he was carrying a bag with 23.2 grams of a "white rock-like substance" that appeared to the officers to be cocaine. The officers later learned that the felonyarrest warrant had been recalled and only the misdemeanor warrant remained valid at the timedefendant was taken into custody.

The trial court denied defendant's motion to suppress the drug evidence discovered pursuantto the strip search, and the case went to trial. Defendant waived his right to a jury trial and enteredinto a stipulated bench trial. The written stipulation stated that defendant "waive[d] all claims orissues at bench trial based on 1) chain of custody of cocaine seized; 2) [t]he introduction or failureto introduce [t]he actual cocaine seized from [defendant]; 3) sufficiency of evidence at trial for court'sfinding defendant guilty at trial if such finding is entered." The trial court did not give completeadmonitions under Rule 402. Following the stipulations, the trial court found defendant guilty ofpossession of a controlled substance with intent to deliver, and it sentenced him to six years in prison. Defendant timely appeals.

II. DISCUSSION

Defendant's first contention on appeal is that the trial court erred in denying his motion tosuppress the evidence discovered pursuant to the strip search. We disagree.

A trial court's ruling on a motion to suppress presents mixed questions of both law and fact. People v. Pitman, 211 Ill. 2d 502, 512 (2004). Thus, our standard of review is twofold. First, wewill uphold the trial court's findings of historical fact, unless such findings are against the manifestweight of the evidence. Pitman, 211 Ill. 2d at 512. However, we review de novo the ultimate legalquestion of whether the evidence should be suppressed. Pitman, 211 Ill. 2d at 512.

In the current case, the trial court denied defendant's motion to suppress based on thelanguage of section 103--1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103--1(West 2002)). The Code states:

"No person arrested for a traffic, regulatory or misdemeanor offense, except in casesinvolving weapons or a controlled substance, shall be strip searched unless there is reasonablebelief that the individual is concealing a weapon or controlled substance." 725 ILCS 5/103--1(c) (West 2002).

Defendant emphasizes on appeal that the officers did not have reasonable suspicion to searchhim upon taking him to the jail. However, the Code provides an exception to the above-quoted rule:

"[Section 103--1(c)] shall not apply when the person is taken into custody by orremanded to the sheriff or correctional institution pursuant to a court order." 725 ILCS5/103--1(j) (West 2002).

The trial court found that the plain language of the above exception made "a distinctionbetween in-custody arrest based on a new offense and in-custody based on failure to appear, whichoccurred in this case." Thus, the trial court ruled that the plain language of the statutory exceptionapplied to defendant and that the strip search was not statutorily prohibited.

We agree with the trial court's reading of the Code. The officers in this case took defendantinto custody pursuant to a misdemeanor arrest warrant, which meets the "court order" requirementof section 103--1(j). See People v. Johnson, 334 Ill. App. 3d 666, 672-73 (2002) (section 103--1(j)exception applied where defendant was taken into custody pursuant to a civil arrest warrant). Therefore, the situation presented in this case falls squarely within the language of the section 103--1(j) exception.

Defendant places substantial emphasis on his assertion that he was not going to be put intothe "general population" of a correctional institution and thus that the section 103--1(j) exceptionshould not apply. We do not see any "general population" requirement in the Code, and we may notread exceptions, limitations, or conditions into a statute's language when none are expressed. E.g.,People v. Ward, 346 Ill. App. 3d 482, 484 (2004).

Further, adding a "general population" requirement to the Code would lead to absurd results. For example, if police were to arrest a known gang leader under circumstances similar to those wesee here, and if police were to take him to a jail where a substantial part of the prison populationbelonged to a rival gang, police might very well not place the gang leader into the "general prisonpopulation." However, the Code surely would not forbid a strip search of the suspect simply becausehe was going to be placed in an area outside what might be termed the "general prison population." For another example, if police were to arrest a defendant under circumstances similar to those we seehere, and if that defendant were to exhibit violent or dangerous behavior (but exhibit no signs ofconcealing a weapon or controlled substance), police might very well put the defendant in an isolatedarea of the jail. However, the Code surely would not forbid a strip search of the defendant. Indeed,the fact that he was so dangerous would give police a clear need to thoroughly search him, eventhough they would not later place him in the "general prison population." Likewise, policeincarcerating a famous or notorious person might sequester that person for obvious safety reasons. The Code surely would not exempt that person from a thorough search simply because the personwas famous or notorious and had to be sequestered.

Defendant cites two Illinois cases that describe the rationale of allowing a strip search, and,indeed, those cases do refer to defendants entering the general prison population. See Johnson, 334Ill. App. 3d at 672-74; People v. Calvert, 326 Ill. App. 3d 414, 424 (2001). However, those casesdid not declare an additional requirement to be read into section 103--1(j) of the Code (725 ILCS5/103--1(j) (West 2002)). Rather, they were merely articulating a rationale for the fourth amendmentintrusion effected by a strip search. See Johnson, 334 Ill. App. 3d at 673-74.

The fourth amendment rationale is not limited only to cases in which the defendant enters thegeneral population of the prison. The court in Johnson stated that " ' "the modesty of one lawfullyarrested must give way to reasonable precautionary procedures designed to detect hidden evidence,drugs, or objects which might be used against others or to cause self-inflicted harm." ' " Johnson, 334Ill. App. 3d at 673-74, quoting People v. Seymour, 84 Ill. 2d 24, 40 (1981), quoting United Statesv. Klein, 522 F.2d 296, 300-01 (1st Cir. 1975). The rationale for allowing strip searches ofdefendants taken into custody applies not only to those taken into the "general prison population,"but also even to those who might be locked up by themselves but nonetheless present a danger ofcausing self-inflicted harm. The interest of law enforcement in thoroughly searching defendants setto be incarcerated is not based on the amorphous concept of whether they are to enter a "generalprison population." Instead, " 'officials in charge of the jail have a strong interest in preventingcontraband drugs and especially weapons from entering the lockup.' " (Emphasis added.) Johnson,334 Ill. App. 3d at 673, quoting Seymour, 84 Ill. 2d at 39.

The court in Johnson drew its "general jail population" reference from Calvert, 326 Ill. App.3d at 424. In Calvert, the court stated, "[i]n light of the substantial need to ensure institutionalsecurity, good penal practices not only permit, they require strip searches before placing detaineesinto the general jail population." Calvert, 326 Ill. App. 3d at 424. We do not read Calvert asdeclaring an additional requirement for a lawful strip search; rather, it was attempting to explain thelaw enforcement interest in conducting strip searches. We hold that law enforcement officials havea valid interest in thoroughly searching any defendant who is "taken into custody by or remanded tothe sheriff or correctional institution pursuant to a court order." 725 ILCS 5/103--1(j) (West 2002).

Defendant also cites Taylor v. Commonwealth of Virginia, 28 Va. App. 638, 642, 507 S.E.2d661, 663-64 (1998), in support of his argument that there exists a "general prison population"requirement for a valid strip search. However, Taylor ruled a strip search constitutionally invalidwhere the strip search was conducted on a "minor non-jailable offender" and the officers did not havereasonable suspicion to search the defendant. Taylor, 28 Va. App. at 642, 507 S.E.2d at 664. It didnot articulate any "general prison population" requirement, but instead balanced the fourthamendment considerations in the case. The holding in Taylor does not affect our reasoning here. Seealso People v. Chandler, 88 Ill. App. 3d 644, 653 (1980) ("decisions of foreign jurisdictions are notbinding upon Illinois courts").

Further, even if we were to hold that there is a "general jail population" requirement, the trialcourt found that "[t]here [was] no evidence that [defendant] was soon-to-be released or that he wouldnot be going into the general population of the jail." In a motion to suppress, the initial burden ofproof is on the defendant. People v. Garvin, 349 Ill. App. 3d 845, 851 (2004). As stated above, wewill not disturb the trial court's factual findings unless they are against the manifest weight of theevidence. Therefore, even if we were to hold for some reason that there is some amorphous "generalprison population" requirement in section 103--1(j) of the Code (725 ILCS 5/103--1(j) (West 2002)),that requirement would have been met in this case.

Defendant also argues that, but for the invalid felony warrant, he would have been taken tothe Aurora city police station, not to the Kane County jail, and thus that the improper warrantprecipitated the strip search. He further argues that there was no evidentiary support for the trialcourt's finding that defendant would have been placed in the general prison population. However,defendant's argument fails for three reasons. First, as noted above, there is no requirement that stripsearches be limited to defendants about to be placed in the general prison population. Second, asnoted above, the trial court did not state that defendant would have been placed in the generalpopulation; rather, it stated that defendant did not produce any evidence to indicate otherwise. Third,the uncontroverted testimony of one of the officers indicated that he took defendant to the KaneCounty jail based on the valid misdemeanor warrant and the seat belt violation and that the invalidfelony warrant had no effect on where defendant was taken.

Defendant also asserts that the strip search was a violation of his fourth amendment rights. See U.S. Const., amend. IV. However, the court in Johnson clearly addressed this issue, and it foundthat law enforcement's need to " ' "detect hidden evidence, drugs, or objects which might be usedagainst others or to cause self-inflicted harm" ' " (Johnson, 334 Ill. App. 3d at 674, quoting Seymour,84 Ill. 2d at 40, quoting Klein, 522 F.2d at 300-01) justified the intrusion on a defendant'sconstitutional rights, which are " 'diminished by the needs of the institutional environment' " (Johnson,334 Ill. App. 3d at 673, quoting Seymour, 84 Ill. 2d at 39). Therefore, the court found that the fourthamendment was not offended by a strip search of a defendant who had been arrested pursuant to acivil warrant and taken into custody. Likewise, here, the strip search of defendant did not offend thefourth amendment.

The test of reasonableness under the fourth amendment requires courts to consider (1) thescope of the particular intrusion; (2) the manner in which it was conducted; (3) the justification forinitiating it; and (4) the place in which it was conducted. Johnson, 334 Ill. App. 3d at 673, quotingBell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 481, 99 S. Ct. 1861, 1884 (1979). The scopeof the intrusion was considered in Johnson and held to be acceptable in light of the other factors; wehold likewise here. As for the manner of the intrusion, the police officers took defendant to a privatearea and asked him to disrobe, and they conducted their search. The justification for the search andthe prison environment in which it took place are discussed above. Considering these factors, alongwith the diminished constitutional privacy afforded one confined to jail, we hold that the search herewas reasonable. The trial court's denial of defendant's motion to suppress was proper.

Defendant's second contention on appeal is that his stipulated bench trial was tantamount toa guilty plea and that the trial judge did not properly admonish him pursuant to Rule 402 (177 Ill. 2dR. 402). We agree.

This contention presents two issues: first, whether the stipulated bench trial was tantamountto a guilty plea, and second, if so, whether admonitions were properly given under Rule 402.

None of the cases discussing the first issue articulates the proper standard of review. Thereis no question of fact involved here; the first issue presents solely a question of law. This courtreviews pure questions of law under a de novo standard of review, without deference to the circuitcourt. People ex rel. Waller v. Harrison, 348 Ill. App. 3d 976, 979 (2004). Accordingly, we holdthat whether a stipulation amounts to a guilty plea is a question to be reviewed de novo. Both partiesagree with the application of de novo review.

A stipulated bench trial is tantamount to a guilty plea when a defendant stipulates not only tothe evidence, but also to the sufficiency of the evidence to convict. People v. Torres, 279 Ill. App.3d 599, 601 (1996); People v. Westerfield, 245 Ill. App. 3d 398, 400 (1993); see People v. Horton,143 Ill. 2d 11, 22 (1991). If the stipulated bench trial is tantamount to a guilty plea, the trial courtmust admonish the defendant pursuant to Rule 402. Torres, 279 Ill. App. 3d at 601.

In this case, defendant stipulated that he "waive[d] all claims and issues at bench trial basedon *** sufficiency of evidence at trial for court's finding defendant guilty at trial if such finding isentered." This language is clearly and unequivocally a stipulation as to the sufficiency of the evidenceto convict. In Horton, the supreme court held that a defendant's stipulation as to the evidence in acase was not tantamount to a guilty plea (see Horton, 143 Ill. 2d at 21; Westerfield, 245 Ill. App. 3dat 400 (interpreting Horton)), but his stipulation to the facts and the sufficiency of the evidence wastantamount to a guilty plea (see Horton, 143 Ill. 2d at 22; Westerfield, 245 Ill. App. 3d at 400). Thecourt held that guilty plea admonishments were required because the defendant was stipulating notonly to the evidence but also to the legal conclusion to be drawn from the evidence. Westerfield, 245Ill. App. 3d at 400 (interpreting Horton, 143 Ill. 2d at 22). We hold the same here.

The State attempts to distinguish the above cases by arguing that the stipulation waived onlydefendant's "after-the-fact challenge to the sufficiency of the evidence." In so arguing, the Stateplaces great emphasis on what it terms an "important qualifier -- 'if such finding is entered.' " TheState argues:

"By its plain terms, the written stipulation was defendant's waiver of any issue with respectto the sufficiency of the evidence if the trial judge found him guilty on the basis of thatevidence. The written stipulation was a waiver of the sufficiency issue, not an admission thatthe stipulated evidence was sufficient."

The State cites no authority for the distinction it attempts to draw here, and we disagree withits interpretation. The "qualifier" is but meaningless surplusage. The stipulation states that theevidence is sufficient to convict; the "qualifier" merely stands for the circular proposition that, ifdefendant is convicted based on the evidence, then the evidence is sufficient to convict. It is not a"qualifier" at all. Further, even if the phrase did qualify the stipulation in the way the State argues,the trial court would still have been able to consider, in making its ruling, the fact that defendantwould not challenge the sufficiency of the evidence to support the ruling.

Moreover, the stipulation did not concern only after-the-fact challenges to the evidence. Thetrial court relied on the stipulations in reaching its ruling, and the text of the stipulation itself clearlystates that defendant was waiving claims and issues "at bench trial." In fact, the trial judge even askeddefendant, "you do understand that the nature of a stipulated bench trial is much like a plea of guilty?"

The State argues that the oral stipulations entered in open court concerned only the evidenceand not the sufficiency of the evidence. However, the trial judge based his decision on the entirerecord, and, as discussed above, the written stipulation amounted to a guilty plea by defendant.

Accordingly, we hold that the stipulations in this case were tantamount to a guilty plea andthat admonitions under Rule 402 were required. Our review of the record shows that the trial courtdid not admonish defendant pursuant to Rule 402. See 177 Ill. 2d R. 402. Indeed, the State doesnot argue that the admonitions given defendant satisfied Rule 402. Therefore we must reversedefendant's conviction and remand the cause for a new trial. See Westerfield, 245 Ill. App. 3d at 402(reversing and remanding for a new trial where Rule 402 admonitions not given).

We note that retrial of defendant will not offend double jeopardy, because we reverse hisconviction due to trial error and not for evidentiary insufficiency. See People v. Mink, 141 Ill. 2d163, 173 (1990).

Finally, we note that the State agrees with defendant's assertion that he should have receivedan additional two days' credit for time served. If defendant is convicted on remand, he should receivethe additional two days' credit.

For the foregoing reasons, the order of the circuit court of Kane County is reversed and thecause is remanded.

Reversed and remanded.

JUSTICE McLAREN, specially concurring.

I do not have major disagreement with the result of the majority opinion. However, I believethat the analysis regarding the denial of the motion to suppress is overly broad. Therefore, I submitthe following analysis to affirm the denial of the motion to suppress.

The officers arrested defendant because of two outstanding warrants, one for a felony chargeand one for a misdemeanor trespass charge. The felony warrant was, unbeknownst to the officers,withdrawn. The officers therefore had a rational basis to take defendant to the county jail rather thanto a local police department. Assuming, arguendo, that they did not have a rational basis, the resultwould be the same. Defendant's argument regarding the statutory basis for suppression, includingthe argument regarding the "general population" of the jail, is a red herring. Defendant has failed tocite to any authority that suggests that a criminal defendant has the right to be taken to a municipalfacility, instead of being remanded to the sheriff or a correctional institution, when a court enters anorder of arrest. Defendant was processed in the ordinary course of the jail procedures and was stripsearched. Defendant claims that he should not have been strip searched because of section 103--1of the Code of Criminal Procedure (Code), which provides:

"No person arrested for a traffic, regulatory or misdemeanor offense, except in casesinvolving weapons or a controlled substance, shall be strip searched unless there is reasonablebelief that the individual is concealing a weapon or controlled substance." 725 ILCS 5/103--1(c) (West 2002)

The trial court found that the above section was inapplicable because it "shall not apply whenthe person is taken into custody by or remanded to the sheriff or correctional institution pursuant toa court order." See 725 ILCS 5/103--1(j) (West 2002).

The misdemeanor warrant, although for trespass rather than a weapons or controlledsubstance violation, was instituted by a trial court and, therefore, was pursuant to an order of thecourt. The bench warrant, unlike that in Johnson, was not for a failure to appear, even though thetrial court here made reference to failure to appear as a distinguishing difference. I believe that it isimmaterial whether a warrant is based upon a criminal charge or a failure to appear so long as thewarrant is issued by a court.

Defendant places substantial emphasis on his assertion that he was not going to be put intothe "general population" of a correctional institution and, thus, that the section 103--1(j) exceptionshould not apply to section 103--1(c). There is no exception relating to the "general population" inthe section 103--1(j) exception. Therefore, the section 103--1(j) exception applies and there is noreason to address defendant's statutory argument further.

Defendant also asserts that the strip search was a violation of his fourth amendment rights. I agree with the analysis of the majority regarding this argument.

Finally, I have an observation regarding the analysis concerning the stipulated bench trial. Themajority states as follows:

"There is no question of fact involved here; the first issue presents solely a question of law. This court reviews pure questions of law under a de novo standard of review, withoutdeference to the circuit court. People ex rel. Waller v. Harrison, 348 Ill. App. 3d 976, 979(2004). Accordingly, we hold that whether a stipulation amounts to a guilty plea is a questionto be reviewed de novo." Slip op at 9.

I believe that the conclusion, "whether a stipulation amounts to a guilty plea is a question to bereviewed de novo," is overly broad. Additionally, it is not clear whether the two clauses in the firstquoted sentence constitute a premise and a conclusion based upon the premise, or if the clauses areindependent. I can foresee other instances where there may be questions of fact as to what thestipulation may have been. I believe that the conclusion is correct only when there are no questionsof fact involved as indicated in the first sentence of the quote, but not in the conclusion. Therefore,I wish to distance myself from the pronouncement of the de novo standard of review which impliesor holds that de novo review applies in all cases involving a purported stipulation constituting a guiltyplea.

JUSTICE HUTCHINSON, specially concurring:

I respectfully agree with Justice McLaren that the analysis regarding the denial of the motionto suppress is overly broad. The exception cited in the majority opinion and Justice McLaren's specialconcurrence, section 103--1(j) (725 ILCS 5/103--1(j) (West 2002)), is clear on its face, and we allagree that it was properly applied in this case. In my opinion, the additional discussion concerningthe "general population" argument is ill-advised and not necessary to resolve this issue.

I otherwise agree with the analysis of the majority opinion.