SIXTH DIVISION MAY 29, 2020

No. 1-17-2987

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 18019 ) RODNEY JOHNSON, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Harris concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial in the circuit court of Cook County, the defendant-appellant,

Rodney Johnson, was convicted of unlawful use of a weapon by a felon, possession of a controlled

substance, possession of cocaine, and possession of cannabis. He was sentenced to seven years’

imprisonment. On appeal, the defendant contends that: (1) the trial court erred in denying his

motion to suppress evidence; (2) he received ineffective assistance of counsel; (3) the search of

his residence violated the Illinois Constitution; and (4) the State failed to prove him guilty of

possession of a controlled substance. For the following reasons, we affirm the judgment of the

circuit court of Cook County, reduce the defendant’s conviction for possession of a controlled

substance to the lesser-included offense under the Illinois Controlled Substances Act (720 ILCS

570/100 et seq. (West 2016)), and remand the case for resentencing. 1-17-2987

¶2 BACKGROUND

¶3 The defendant was arrested and charged with eight different gun and narcotic offenses after

a gun, ammunition, and numerous drugs were found inside his residence. At the time, the defendant

was a parolee who was out of prison on mandatory supervised release (MSR) for a prior felony

conviction. 1 Before being released on MSR, the defendant signed a “Parole or Mandatory

Supervised Release Agreement” (MSR agreement). The MSR agreement provided “Rules of

Conduct” that governed the defendant’s MSR. The relevant rule of conduct stated: “You shall

consent to a search of your person, property, or residence under your control.”

¶4 Prior to the commencement of trial, the defendant orally moved to suppress evidence,

specifically the weapons and drugs recovered from the residence where he was arrested. A hearing

on the defendant’s motion followed.

¶5 During the hearing, the defendant called Tina Williams, a parole agent with the Illinois

Department of Corrections. Williams testified that she was assigned to do a parole compliance

check on the defendant to make sure he was in compliance with his MSR agreement. She testified

that “probably two more” parole agents were with her, as well as several police officers, although

she could not remember exactly how many. The defendant claimed that 12 parole agents and police

officers participated in the search

¶6 Williams testified that she and the others all arrived at the defendant’s residence and he

opened the door for them. The main purpose of the parole compliance check was to verify that the

defendant was in compliance with his parole, including verifying that he actually lived at the

residence by “looking for” “first class mail” and “property that belonged” to the defendant. The

1 The record does not identify the defendant’s prior felony conviction.

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following colloquy ensued during the hearing:

“[DEFENSE COUNSEL]: And where normally do you look

for these kinds of things?

[WILLIAMS]: It depends on how much access that the

parolee says he has to [the] apartment. So we would ask the parolee

first.

[DEFENSE COUNSEL]: Did you ask [the defendant] if he

had any mail to show you?

[WILLIAMS]: Yes.

[DEFENSE COUNSEL]: What did he say?

[WILLIAMS]: In the beginning he didn’t tell the truth. He

said he had some first, but he couldn’t find it.

[DEFENSE COUNSEL]: So he said I have some but I

couldn’t find it?

[WILLIAMS]: No, he tried to find some in a room that was

not his room.

[DEFENSE COUNSEL]: Had you ever been to this

apartment before?

[WILLIAMS]: No.

[DEFENSE COUNSEL]: Ha[d] you ever met [the

defendant] before?

[WILLIAMS]: No.

[DEFENSE COUNSEL]: So you, walking in, you had no

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firsthand knowledge about who lived in which room, correct?

[WILLIAMS]: Exactly.

[DEFENSE COUNSEL]: So how many rooms were in this

apartment?

[WILLIAMS]: Four.

[DEFENSE COUNSEL]: Four bedrooms or four rooms

total?

[WILLIAMS]: Four bedrooms.

[DEFENSE COUNSEL]: And did you go into any of those

bedrooms?

[WILLIAMS]: Yes.

[DEFENSE COUNSEL]: How many of those bedrooms did

you go into?

[WILLIAMS]: Well, I looked in all the rooms, but as far as

*** to check that was done [sic], it was in two.”

¶7 Williams then explained that the defendant took her and the other officers into a bedroom

that contained “female belongings.” They searched the room but did not find any mail addressed

to the defendant. Williams asked the defendant which room was his. The defendant continued to

claim that the room they were in, with the female belongings, was his room. 2

¶8 When Williams told the defendant that she did not believe him because they could not find

any of his belongings in that room, he told her to ask his uncle, who was letting him stay there.

2 Williams testified that, at some point during the parole compliance check, the defendant also identified a small storage room as his bedroom.

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Williams requested that the uncle come to the bedroom area, and he identified another bedroom

which was locked, as the defendant’s room.

¶9 One of the police officers then broke the lock, opened the bedroom door, and entered.

Inside the locked bedroom, the police officers found a gun, ammunition, and numerous drugs. The

defendant was subsequently arrested.

¶ 10 When defense counsel asked Williams if she had a search warrant to search the defendant’s

residence, she responded: “No, we [weren’t] searching the house.”

¶ 11 On cross-examination, Williams testified that when she first arrived at the defendant’s

residence with the other officers, she knocked on the front door but no one answered. She called

the defendant’s cell phone. The defendant answered his phone and said he would be right down,

but it took him six minutes to open the front door.

¶ 12 The defendant testified that when Williams came to his residence to complete the parole

compliance check, there were four other parole agents and seven police officers with her. As soon

as he opened the front door, all of the parole agents and police officers immediately entered inside

the residence; they “grabbed” him and put him in handcuffs. The parole agents and police officers

then “searched the whole house. *** They [entered] rooms, look[ed] under mattresses, look[ed] in

closets.” He saw one police officer pull out a pocket knife and use it to “jimmie[ ]” a lock on one

of the bedroom doors.

¶ 13 On cross-examination, the State asked the defendant about the MSR agreement:

“[THE STATE]: And one of those rules on that document

says that your property, your person and your residence can be

searched at any time?

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[THE DEFENDANT]: Well, actually the document said I

have to permit the agent to search it, meaning he needs my consent.

THE COURT: Ask him questions of fact. Not questions of

law.

[THE STATE]: Okay. And you signed that agreement when

you went on parole?

[THE DEFENDANT]: Yes. You have to sign it to get your

parole.

[THE STATE]: Now, when the officers came and knocked

on your door, you let them into your residence?

[THE DEFENDANT]: I didn’t let them in. I answered the

door and they forced themselves in.

***

[THE STATE]: After the officers enter[ed] your bedroom,

they found drugs in your room, correct?

[THE DEFENDANT]: That wasn’t my bedroom.

[THE STATE]: In the middle of [the] bedroom, they

found—

[THE DEFENDANT]: I [didn’t] know what they found until

I got charged with it.

[THE STATE]: When they were—when they jimmied into

that bedroom, some of your belongings were in there, correct?

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[THE DEFENDANT]: From my understanding they told me

they found my ID in the room.”

¶ 14 At that point in the defendant’s testimony, the court stated:

“I want to know if he has standing. That’s one thing that is coming

up and that’s occurring to me is does he have standing. So I’d like to

know if he’s acknowledging which bedroom certain things were

searched and certain things were found. So let’s find out if he has

standing to bring a motion.”

The State continued questioning the defendant:

“[THE STATE]: Now, is your bedroom the second bedroom that

was locked?

[THE DEFENDANT]: Actually, they asked me where I sleep

at. I sleep on the couch. Then they asked me where were my clothes.

I [pointed to] the room that they referred to as the storage room.

[THE STATE]: Was any of your belongings or property in the

locked bedroom?

[THE DEFENDANT]: No, it was just—they said it was my ID

and a piece of mail and my cell phone, and that was in my pants

pocket.

[THE STATE]: Were the drugs that were recovered in that

room your drugs?

[THE DEFENDANT]: No, they w[ere] not.

[THE STATE]: Was the gun in that room [yours]?

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[THE DEFENDANT]: No, it was not.

[THE STATE]: Was the ammo recovered in that room yours?

[THE DEFENDANT]: No, it was not.”

¶ 15 The defendant then rested on his motion to suppress evidence. He argued that the trial court

should grant his motion “due to the totality of the circumstances that the parole compliance check

extended beyond its scope and purpose [and] that the Chicago Police Department were the ones

acting as investigators at this point when they jimmied open the door.”

¶ 16 The trial court denied the defendant’s motion, stating:

“Two problems here, parolees are in a totally different situation as

far as [f]ourth [a]mendment claims are concerned. They do not have

the same rights under the [f]ourth [a]mendment to assert such claims

than defendants who are not on parole.

Number two, he is claiming that whatever was found was not

in that particular room or the Government [sic] says was found. So

he doesn’t have standing to complain about where the other thing

was found. He has nothing to do. Those are trial questions.

Questions of fact for the trial. So for those reasons, the motion to

suppress evidence is respectfully denied.”

¶ 17 A bench trial then commenced. The parties adopted the defendant’s and Williams’

testimonies from the suppression hearing.

¶ 18 Officer Daniel Pacelli testified that he assisted Williams with the defendant’s parole

compliance check. Officer Pacelli explained that the defendant’s residence had four bedrooms and

it appeared that multiple people lived there. The second bedroom was locked. The defendant did

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not indicate that the locked bedroom was his, but another police officer was nonetheless able to

“manipulate the door to open it.” Officer Pacelli looked inside the room and saw drugs in plain

view.

¶ 19 Officer Pacelli, Williams, and others entered the locked bedroom. Williams called the

defendant’s cell phone, and his cell phone began ringing inside the room. The defendant’s mail,

ID, and Social Security card were also found inside the room. Police officers further discovered a

gun, ammunition, more drugs, and drug packaging equipment.

¶ 20 The State asked Officer Pacelli if he heard the defendant say anything while he and the

other police officers were searching the locked bedroom:

“[OFFICER PACELLI]: Yes.

[THE STATE]: What did you hear the defendant say?

[OFFICER PACELLI]: After [a parole agent] recovered

some narcotics, [that agent] yelled out, ‘I recovered more narcotics.’

At that time the defendant yelled out, ‘It’s only weed and C.’

[THE STATE]: And at that time was the defendant placed

into custody?

[OFFICER PACELLI]: The defendant was already in

custody.

[THE STATE]: When was the defendant placed in to [sic]

custody?

[OFFICER PACELLI]: After I observed in plain view—

when I was doing a safety check in the room—the cocaine.”

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¶ 21 The State then rested. The parties stipulated that the narcotics recovered from the locked

bedroom were inventoried and sent to the Illinois State Police Crime Lab for testing and analysis.

The parties further stipulated that those items tested positive for 12.6 grams of cocaine, 220.1

grams of cannabis, and 103.7 grams of hydrocodone.

¶ 22 The defendant moved for a directed finding. The court granted the motion regarding the

intent to deliver charges but denied the motion with respect to the lesser-included offenses of

simple possession.

¶ 23 The trial court then found the defendant guilty of unlawful use of a weapon by a felon,

possession of a controlled substance, 3 possession of cocaine, and possession of cannabis.

¶ 24 Before sentencing, the trial court permitted the defendant to make a statement. He

complained to the trial court that his defense counsel had failed to visit him in jail and discuss trial

strategy with him. He further argued that she failed to show that he was not the only person who

lived at the residence and failed to show that the police conducted an illegal search. He continued

to claim that the locked bedroom was not his and that he never allowed the police to search his

residence.

¶ 25 Citing to People v. Krankel,

(1984), the trial court requested a response

from defense counsel. Defense counsel conceded that she had not visited the defendant in jail, but

she did discuss the case notes with prior defense counsel, who had visited the defendant in jail and

discussed discovery with him. Defense counsel conducted her own investigation and determined

that no other witnesses could address the issues of guilt or innocence. Specifically, defense counsel

explained that she had spoken with other family members who lived at the residence and learned

3 The defendant’s conviction for possession of a controlled substance was for possession of 200 grams or more of hydrocodone.

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from them that no one was present during the search who could testify as an eyewitness. The trial

court asked defense counsel if she thought “as a matter of trial strategy that it would backfire and

not be good for the defense” to call those witnesses, and counsel agreed with that assessment.

Defense counsel also reminded the court that she had filed and fully litigated a motion to suppress

evidence.

¶ 26 The trial court determined that defense counsel was not ineffective and that the defendant’s

complaints were “more about form as opposed to substance.”

¶ 27 The trial court then sentenced the defendant to concurrent sentences of seven years for

unlawful possession of a weapon by a felon; seven years for possession of a controlled substance;

three years for possession of cocaine; and three years for possession of cannabis. This appeal

followed.

¶ 28 ANALYSIS

¶ 29 We note that we have jurisdiction to review the trial court’s judgment, as the defendant

filed a timely notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017).

¶ 30 On appeal, the defendant presents the following issues: (1) whether the trial court erred in

denying the motion to suppress evidence; (2) whether the defendant received ineffective assistance

of counsel when his defense counsel failed to reopen the motion to suppress evidence during the

trial; (3) whether the search of the defendant’s residence violated the search and seizure clause of

the Illinois Constitution; and (4) whether the State failed to prove the defendant guilty beyond a

reasonable doubt of possession of a controlled substance. We take each argument in turn.

¶ 31 The defendant first argues that the trial court erred in denying the motion to suppress

evidence because the search of his residence violated his rights under the fourth amendment. He

claims that he had a reasonable expectation of privacy in the locked bedroom “that police entered

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by physically manipulating the lock without any consent.” He concedes that parolees have a

diminished expectation of privacy but avers that “this expectation of privacy is not extinguished

entirely.” The defendant claims that the MSR agreement requiring him to consent to searches did

not constitute his consent of all prospective searches. He accordingly claims that his motion to

suppress the gun, ammunition, and drugs found during the search should have been granted.

¶ 32 The fourth amendment of the United States Constitution protects individuals from

unreasonable searches and seizures. U.S. Const., amend. IV. Generally, the fourth amendment

requires the government to possess a warrant supported by probable cause for a search to be

considered reasonable. People v. Wilson,

(2008). However, the requirement for

a warrant has been held unnecessary in cases involving parolees when the search is deemed

reasonable.

¶ 33 In reviewing a trial court’s ruling on a motion to suppress evidence, we apply the two-part

standard of review adopted by the United States Supreme Court in Ornelas v. United States,

(1996). People v. Luedemann,

(2006). Under this standard, a

trial court’s findings of fact should be reviewed only for clear error.

“In other words, we give

great deference to the trial court’s factual findings, and we will reverse those findings only if they

are against the manifest weight of the evidence.”

Yet, a reviewing court remains free to

undertake its own legal assessment of the facts and may draw its own conclusions when deciding

what relief should be granted.

Therefore, we review de novo the trial court’s ultimate legal

ruling as to whether suppression is warranted.

¶ 34 In this case, the trial court denied the defendant’s motion to suppress evidence for two

reasons: (1) the defendant, as a parolee, “do[es] not have the same rights under the Fourth

Amendment” as non-parolees; and (2) the defendant did not have standing to challenge any

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evidence found inside the locked bedroom because he claimed that it was not his bedroom.

However, as the State acknowledges, courts “no longer use the rubric of ‘standing’ when analyzing

fourth amendment claims.” People v. Johnson,

(2010); see also People v.

McCauley,

(whether the defendant has “standing” to raise a fourth

amendment claim is the wrong question for the trial court to ask). “Instead, the relevant inquiry is

whether the person claiming the protections of the fourth amendment had a legitimate expectation

of privacy in the place searched.” Johnson,

.

¶ 35 It has been established by our supreme court that parolees who have signed an MSR

agreement that has a search condition, such as that in the instant case, have a reduced expectation

of privacy such that standard fourth amendment protections do not apply to them. Wilson,

. In Wilson, parole agents and police officers visited the defendant’s residence after

receiving a tip that the defendant, who was a parolee, had possession of drugs and weapons.

. The defendant’s relative gave the parole agents and police officers permission to enter the

residence.

Once inside, they saw the defendant emerge from a room that he said was his

bedroom.

The police officers then searched the defendant’s bedroom and found drugs.

The

parole agent testified that he believed he did not need a warrant or consent to search the defendant’s

bedroom because the “defendant’s MSR agreement constituted [the] defendant’s consent to any

searches of his person, property, or residence.”

. The defendant moved to suppress

evidence on the basis that the search of his bedroom violated his rights under the fourth

amendment.

. The trial court denied the motion, “finding that [the] defendant consented to

the search when he signed his MSR agreement.”

.

¶ 36 The Illinois Supreme Court affirmed the trial court’s denial of the defendant’s motion to

suppress evidence.

. The supreme court acknowledged that the search of the defendant’s

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room was nonconsensual, stating: “[The police officers] did not ask for consent before ordering

the search of [the] defendant’s bedroom. Moreover, [the] defendant’s search condition, which

mandated that he ‘shall consent to a search,’ did not constitute prospective consent.”

.

Nonetheless, the supreme court noted that parolees remain in the legal custody of the Department

of Corrections for the duration of their parole; and that the search condition contained in the MSR

agreement puts parolees on notice that law enforcement officials may search their person, property,

or residence at any time, with or without reasonable suspicion.

.

¶ 37 In its holding, our supreme court focused on parolees’ diminished expectation of privacy

and the “salient government interest in preventing recidivism and protecting society from future

crimes.”

. The court stated: “[W]e find that any ‘special protection’ afforded to [the]

defendant’s residence was lost when he became a parolee and agreed [in his MSR agreement] to

consent to a search of his residence.”

. Citing to Samson v. California,

, 856-

58 (2006), a United States Supreme Court case, the court explained that if searches of parolees

required suspicion, parolees would have a greater opportunity to anticipate searches and conceal

criminality, which would undermine the government’s ability to effectively supervise parolees.

Wilson,

. The Illinois Supreme Court confirmed that the fourth amendment does

not prohibit a police officer from conducting a suspicionless search of a parolee, his property, or

his residence.

.

¶ 38 As the facts of the instant case are analogous to Wilson, we are bound to follow our supreme

court. The defendant in this case was a parolee out on MSR at the time of the search. Consequently,

he was not afforded the usual protections from warrantless and suspicionless searches. The

defendant argues that while the supreme court in Wilson held that parolees have a diminished

expectation of privacy, it did not hold that parolees have no expectation of privacy whatsoever.

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This is true. Yet, the supreme court nonetheless held that a parolee’s expectation of privacy is so

diminished that a warrantless and suspicionless search of a parolee’s residence is permissible.

¶ 39 It is irrelevant that neither the defendant nor anyone else in the residence consented to a

search; the defendant signed an MSR agreement that put him on notice that his residence could be

searched at any time. Even though the defendant disclaimed the locked bedroom as his, the

circumstantial evidence establishes that the locked bedroom was, indeed, the defendant’s room,

and thereby under his control. Parole agent Williams testified that she called the defendant’s cell

phone upon arrival at the residence. The defendant answered, and after a delay of six minutes, he

opened the door to the residence. The defendant’s cell phone was later found in the pocket of his

pants inside the locked bedroom. Further, his mail, ID, and Social Security card were found inside

the room. The police officers did not find belongings that were the defendant’s anywhere else in

the residence. His uncle identified the locked bedroom as the defendant’s room. 4 The totality of

the circumstantial evidence establishes that the room was the defendant’s. Accordingly, the gun,

ammunition, and drugs found inside the room were properly ascribed to the defendant. The trial

court therefore did not err in denying the defendant’s motion to suppress evidence.

¶ 40 Next, the defendant argues that he received ineffective assistance of counsel when his

defense counsel did not reopen the motion to suppress evidence during the trial. He claims that

Officer Pacelli’s testimony at trial established that the police officers opened the locked bedroom

and searched it even though the defendant did not confirm that it was his room. The defendant

further argues that Officer Pacelli’s testimony that the defendant’s cell phone was found inside the

4 The defendant makes much of the fact that police officers searched other rooms in the residence, which he shared with relatives. He claims the search also violated their rights under the fourth amendment as non-parolees. The defendant cannot make such an argument on behalf of others. Further, nothing was recovered from the other rooms and no one else was charged.

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locked bedroom is further proof of his expectation of right to privacy. The defendant accordingly

contends that his defense counsel should have reopened the motion to suppress evidence during

the trial.

¶ 41 Claims of ineffective assistance of counsel are reviewed through a two-part test that was

announced by the United States Supreme Court in Strickland v. Washington,

(1984),

and adopted by our supreme court. People v. Burrows,

(1992). To prevail on

a claim of ineffective assistance of counsel, a defendant must demonstrate both that (1) counsel’s

performance was objectively unreasonable under prevailing professional norms and (2) the

defendant was prejudiced. People v. Veach,

(citing People v. Domagala,

). Prejudice is a reasonable probability of a different result of the proceeding

absent counsel’s deficiency, and a reasonable probability is probability sufficient to undermine

confidence in the outcome.

When a reviewing court addresses an ineffective assistance of

counsel claim, it need not apply the two-part test in numerical order. Burrows,

.

We review claims of ineffective assistance of counsel de novo. People v. Demus,

.

¶ 42 We need not address whether defense counsel’s performance was objectively unreasonable

because the defendant cannot demonstrate prejudice. As discussed supra, the search of the locked

bedroom did not violate the defendant’s rights under the fourth amendment that would warrant

suppressing the weapons and drugs found inside the room. Officer Pacelli’s testimony, that the

officers opened the locked bedroom door even though the defendant did not indicate that it was

his room and that the defendant’s cell phone was found inside the room, does not change our fourth

amendment analysis.

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¶ 43 It does, however, highlight the defendant’s attempt to have it both ways. If, as he claims,

the room was not his, then he had no reasonable expectation of privacy regarding the contents of

the room. On the other hand, if, as the circumstantial evidence shows, the room was his, then, as

Wilson suggests, he had a reduced expectation of privacy and did not enjoy the full breadth of

fourth amendment protections. Consequently, even had defense counsel reopened the motion to

suppress evidence, it cannot be said that the trial court would have granted it and that it would have

changed the outcome of the trial. Thus, the defendant was not prejudiced. See People v.

Miramontes,

(a defendant is prejudiced only when there is a

reasonable probability that there would have been a different outcome in the defendant’s trial).

Accordingly, we find that defense counsel did not render ineffective assistance.

¶ 44 The defendant next argues that the search of his residence violated the search and seizure

clause of the Illinois Constitution, claiming that the Illinois Constitution generally provides more

protections than the United States Constitution. He notes that the Illinois Supreme Court has never

addressed a parolee’s privacy rights under the Illinois Constitution and encourages us to engage in

such an analysis.

¶ 45 As already discussed, the fourth amendment provides that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated.” U.S. Const., amend. IV. Likewise, under our state constitution, “[t]he people

shall have the right to be secure in their persons, houses, papers[,] and other possessions against

unreasonable searches[ ] [and] seizures.” Ill. Const. 1970, art. I, § 6. We interpret article I, section

6, in “limited lockstep” with the fourth amendment. People v. Caballes,

(2006). “Under this approach, [Illinois courts] will ‘look first to the federal constitution, and only

if federal law provides no relief [will they] turn to the state constitution to determine whether a

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specific criterion—for example, unique state history or state experience—justifies departure from

federal precedent.’ ”

at 309 (quoting Lawrence Friedman, The Constitutional Value of Dialogue

and the New Judicial Federalism,

, 104 (Fall 2000)). It is well settled

that, under the limited lockstep doctrine, the search and seizure clause of the Illinois Constitution

is identical to the search and seizure clause of the United States Constitution. Id. at 335.

¶ 46 As our supreme court explicitly held in Caballes that our state constitution does not provide

greater protections than the fourth amendment, and as our supreme court in Wilson established that

police officers can search parolees’ homes without any suspicion under the fourth amendment, it

necessarily follows that suspicionless searches of parolees’ homes do not violate the Illinois

Constitution. Ergo, the defendant’s argument that the search of his residence violated our state

constitution fails.

¶ 47 Nonetheless, the defendant argues that, in Caballes, our supreme court “actually reaffirmed

Illinois’ departure from the traditional lockstep doctrine.” The defendant’s argument on this point

is equally unavailing and merely confirms that Illinois courts follow the limited lockstep doctrine,

which we have already discussed.

¶ 48 Finally, the defendant argues that the State failed to prove him guilty of possession of a

controlled substance. He argues that his conviction was for possessing 200 grams or more of

hydrocodone, but the parties stipulated that the hydrocodone recovered from the locked bedroom

weighed only 103.7 grams. He accordingly asks us to vacate his conviction and sentence for

possession of a controlled substance.

¶ 49 The State has the burden of proving, beyond a reasonable doubt, each element of an

offense. People v. Gray,

. When a defendant challenges the sufficiency of

the evidence, the proper standard of review is whether, after viewing the evidence in the light most

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favorable to the State, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.

¶ 50 A stipulation is conclusive as to all matters included in it, and no proof of stipulated facts

is necessary because a stipulation is a substitution for proof that dispenses with the need for

evidence. People v. Woods,

(2005). By stipulating that the hydrocodone found

inside the locked bedroom weighed 103.7 grams, the State failed to prove the defendant guilty of

possession of 200 grams of hydrocodone. See People v. Wilkerson,

(the greater the amount of illegal substance possessed by a defendant, the higher the offense,

and so the State must prove beyond a reasonable doubt the weight of the substance containing the

drug). Further, the State concedes that the defendant’s conviction should be reduced to the lesser-

included offense under the Illinois Controlled Substances Act (Act).

¶ 51 The defendant asks us to vacate his conviction entirely instead of reducing it because there

is “no lesser[-]included offense or other catch-all violation for the simple possession of

hydrocodone.” This is incorrect. Section 402(c) of the Act is a catch-all clause that provides: “Any

person who violates this Section with regard to an amount of a controlled substance *** not set

forth in subsection (a) or (d) is guilty of a Class 4 felony.” (Emphasis added.) 720 ILCS 570/402(c)

(West 2016). The defendant was convicted under subsection (a), which provides that a person

violates the Act for possessing 200 grams or more of hydrocodone. 5 6

§ 402(a)(11). But because

the parties stipulated that the substance recovered from the locked bedroom tested positive for

103.7 grams of hydrocodone, the State instead proved the defendant guilty of possessing a

5 Specifically, subsection (a)(11) provides that a person violates section 402 for possession of 200 grams of a substance classified as a Schedule II narcotic (720 ILCS 570/402(a)(11) (West 2016)), and section 206(b)(1)(x) of the Act lists hydrocodone as a Schedule II narcotic (id. § 206(b)(1)(x)). 6 Subsection (d) pertains to anabolic steroids, which is irrelevant. 720 ILCS 570/402(d) (West 2016).

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controlled substance pursuant to section 402(c) of the Act.

¶ 52 Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967) allows a reviewing court to reduce

the severity of the offense of which a defendant was convicted. We accordingly reduce the degree

of the defendant’s conviction from possession of 200 grams or more of hydrocodone pursuant to

section 402(a) to possession of a controlled substance pursuant to section 402(c). An offense under

section 402(c) is a Class 4 felony that carries with it a prison term of one to three years. The

defendant was sentenced to seven years for the greater offense. Thus, we remand this case to the

trial court for resentencing of the defendant for conviction for possession of a controlled substance

under section 402(c), as discussed herein.

¶ 53 CONCLUSION

¶ 54 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County but

reduce the defendant’s conviction for possession of a controlled substance to the lesser-included

offense and vacate the defendant’s sentence; we remand the case for new sentencing on the

defendant’s conviction for possession of a controlled substance.

¶ 55 Affirmed in part and vacated in part; cause remanded.

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No. 1-17-2987

Cite as: People v. Johnson,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-CR-18019; the Hon. James B. Linn, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Eric E. Castañeda, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, David H. Iskowich, and David G. Myers, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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