2022 IL App (1st) 162516-UB 

No. 1-16-2516 

Order filed February 4, 2022 

Fifth Division 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1). 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIRST DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

) 

v. ) No. 14 CR 20996 

) 

RUDOLPH ORTEGA, ) Honorable 

) James B. Linn, 

Defendant-Appellant. ) Judge, presiding. 

PRESIDING JUSTICE DELORT delivered the judgment of the court. 

Justices Hoffman and Rochford concurred in the judgment. 

ORDER 

¶ 1 Held: Because the defendant could not establish prejudice from his counsel’s failure to 

present evidence in support of his motion to quash a search warrant and suppress 

evidence, his contention of ineffective assistance fails. 

¶ 2 Defendant Rudolph Ortega was convicted of possession of over 5000 grams of cannabis 

and sentenced to four years in prison. On appeal, he contended that his trial counsel was ineffective 

for (1) failing to present evidence regarding certain disputed facts at the hearing on his motion to 

quash the search warrant of the vehicle in which police found the cannabis, and (2) failing to 
 

 

No. 1-16-2516 

provide affidavits in support of the defense motion for a hearing pursuant to Franks v. Delaware, 

438 U.S. 154 (1978). We remanded for the sole purpose of holding a Franks hearing but retained 

jurisdiction to address defendant’s first allegation of ineffective assistance of counsel if Franks 

relief were denied. People v. Ortega, 2020 IL App (1st) 162516, ¶ 32 (Ortega I). 

¶ 3 After our remand, the circuit court held a Franks hearing and denied relief. Defendant’s 

appellate counsel advised this court in a status report that the defense does not request further 

briefing regarding the denial of the Franks motion. Therefore, we now address defendant’s 

remaining contention: that his trial counsel was ineffective for failing to present evidence, as 

opposed to only argument, at the hearing on his motion to quash the search warrant of the vehicle 

and suppress evidence. 

¶ 4 The facts are set forth in detail in Ortega I and we repeat only those relevant to the issue 

now pending before us. On November 2, 2014, a truck driver transporting a BMW automobile 

from Nevada to Chicago stopped in Naperville to unload a different vehicle from the truck. When 

the truck driver attempted to drive the BMW off the truck to accommodate the other vehicle, the 

driver discovered the BMW’s battery was dead. The driver looked in the trunk, found multiple 

bundles wrapped in duct tape, and contacted the local police. The Naperville police obtained two 

search warrants: one to search the BMW and ascertain the contents of the packages in the trunk, 

and the other to place a tracking device on the BMW to monitor its location. At some point, the 

packages field-tested positive for cannabis. When the BMW arrived in Chicago, the truck driver 

followed his prearranged instructions and called a phone number to determine the precise delivery 

location. Defendant, codefendant Marcella Acosta, and codefendant Lilian Masso met the truck 

driver at a Home Depot parking lot in Chicago. Defendant then drove the BMW to Masso’s house 

and parked it in the detached garage. While the garage door was open, police observed defendant 

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moving packages from the trunk of the BMW into a bag held by Acosta. Police entered the garage 

and detained defendant and Acosta. The packages tested positive for 5113.8 grams of cannabis. 

Following this arrest, defendant, Acosta, and Masso were charged by indictment with possession 

of over 5000 grams of cannabis with intent to deliver. 

¶ 5 Defendant filed several pretrial motions. The motion at issue in this appeal was titled 

“Motion to Quash Search Warrant #17998 and Suppress Evidence Illegally Obtained.” In that 

motion, defendant alleged that the warrant to search the BMW—which is not included in the record 

on appeal—was belatedly issued after the BMW had already been searched.1 He asserted that an 

officer and his drug-sniffing dog arrived on the scene after the truck driver contacted the Naperville 

police but before any warrant was issued. Referencing a “supplemental [police] report,” which is 

also not included in the record on appeal, defendant stated that the dog jumped through an open 

window, into the BMW, and unlawfully sniffed the BMW’s interior before it alerted to the 

presence of drugs. 

¶ 6 Defendant further asserted that the four “factors” listed by Naperville Police Sergeant Scott 

Thorsen in the complaint for the warrant were “completely unsubstantiated, foundationless factual 

statements” that did not establish probable cause for a warrant to issue. The complaint for the 

warrant is not in the record, but according to defendant’s motion, it set out the following four facts 

to show the existence of probable cause: (1) several rectangular duct-taped packages, some with 

unknown red writing on the outside, were in the trunk; (2) an empty gas can wrapped in a plastic 

bag was in the trunk of the vehicle; (3) a police dog alerted that there were narcotics in the BMW; 

and (4) while the registration “attached” to the BMW was to two people in Nevada, the registration 

1

 We note that defendant, as the appellant, has the duty to present a complete record on 

appeal. People v. Gilbert, 2013 IL App (1st) 103055, ¶ 17. 

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“returns on a 1986 Suzuki motorcycle not a 2002 BMW 325i.” Challenging these facts, defendant 

argued that (1) the packages were not inherently contraband by their nature or outer appearance, 

(2) the mere existence of a gas can does not provide reasonable suspicion or probable cause, (3) 

the dog had been trained in Michigan but was not certified in Illinois until six months after the 

search was executed, and (4) a “reporting officer narrative” indicated the BMW’s temporary 

registration did not have a current record. 

¶ 7 Defendant also filed a “Motion for a Franks hearing to Quash Search Warrant *** and 

Suppress Evidence Illegally Obtained,” in which he alleged that Thorsen’s complaint for a warrant 

to search the BMW contained “a stockpile” of false statements that merited the granting of an 

evidentiary hearing pursuant to Franks, as well as the quashing of the warrant and the suppression 

of all evidence obtained as a result of its execution. This motion was addressed at length in our 

2020 opinion. 

¶ 8 The main hearing on defendant motions took place on June 15, 2016. Counsel for Acosta 

took the lead and argued on behalf of both defendant and Acosta, with occasional clarifications by 

defendant’s own counsel. As noted in Ortega I, Acosta’s counsel and the court engaged in a 

colloquy to the effect that the motion should be considered on a strictly legal basis without the 

presentation of evidence. Ortega I, ¶¶ 10-15. Defendant’s counsel voiced no disagreement with 

the court’s contemplating the consideration of the motions on a strictly legal basis. Id. ¶ 10. 

¶ 9 After hearing extensive arguments, the circuit court found that the initial search of the car 

was lawful because the truck driver, as bailee, gave permission for it. Id. ¶ 15. The court 

commented, however, that was not necessarily the case with respect to the search at the Chicago 

garage. Id. ¶ 16. 

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¶ 10 During a discussion with the parties about scheduling a hearing on a different motion 

specifically challenging the search of the car in the Chicago garage, the court stated: 

“There’s not going to be any Franks [hearing]. I don’t see any reckless disregard 

of the truth or purposeful lies that caused the warrant to be issued, that wouldn’t have been 

issued. Otherwise, I don’t believe—not even so sure they needed a warrant under the 

scenario I’ve been listening to today; but a judge signed it; and it’s more, like, just to be 

careful after the fact.” Id. ¶ 17. 

At the conclusion of the hearing, the court stated that the motion to quash the search warrant and 

the motion for a Franks hearing were denied. Id. 

¶ 11 Defendant filed two other pretrial motions. One, a “Motion to Suppress Statements,” 

challenged an inculpatory statement defendant made in a police car following his arrest, on the 

basis that it was coerced. The second, a “Motion to Quash Arrest and Suppress Evidence,” 

challenged the search of the BMW in Masso’s garage. The court denied both of these motions 

following hearings. Id. ¶ 18. 

¶ 12 By agreement, the arguments and evidence presented at the suppression hearings were 

incorporated into the trial by reference. Id. ¶ 19 (discussing trial evidence in detail). Following the 

trial, the court found defendant guilty of the lesser-included offense of possession of over 5000 

grams of cannabis and sentenced him to four years in prison. Id. ¶ 21. 

¶ 13 As noted, defendant contended on appeal in Ortega I that his trial counsel was ineffective 

for (1) failing to present evidence regarding certain disputed facts at the hearing on his motion to 

quash the search warrant of the vehicle and suppress evidence, and (2) failing to provide affidavits 

in support of the defense motion for a Franks hearing. Id. ¶ 23. Following oral argument, we 

remanded for the sole purpose of holding a Franks hearing, noting that if the circuit court denied 

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Franks relief, we would address defendant’s first allegation of ineffective assistance of counsel, 

over which we retained jurisdiction. Id. ¶ 32. The circuit court has now held a Franks hearing and 

denied relief. Accordingly, we now address defendant’s remaining argument. 

¶ 14 Defendant argues that his trial counsel was ineffective for failing to present evidence at the 

hearing on his motion to quash the warrant and suppress evidence where “there were facts in 

dispute,” which prejudiced him as his motion was denied. The disputed facts, according to 

defendant’s brief, were (1) what time the search of the BMW occurred, (2) whether the search 

occurred before the warrant issued, and (3) whether the packages in the trunk were opened before 

the warrant issued. Defendant maintains that without evidence—rather than merely argument—on 

these issues, the court could not determine whether a fourth amendment violation occurred. 

¶ 15 At oral argument before this court in Ortega I, defendant conceded that the truck driver, as 

a bailee, had authority to allow the police to search the BMW. Id. ¶ 27. However, he maintained 

that this authority did not extend to allowing the police to open the sealed packages found in the 

trunk. He contended that opening the packages required a valid warrant, even though the packages 

were in the trunk of the bailed BMW which was then in the hired truck driver’s custody as bailee. 

¶ 16 In reviewing claims of ineffective assistance of counsel, appellate courts “use a bifurcated 

standard of review, wherein we defer to the trial court’s findings of fact unless they are against the 

manifest weight of the evidence, but make a de novo assessment of the ultimate legal issue of 

whether counsel’s actions support an ineffective assistance claim.” People v. Nowicki, 385 Ill. 

App. 3d 53, 81 (2008). In this case, where defendant is not challenging any findings of fact made 

by the trial court, but rather, is arguing that the trial court should have been presented with evidence 

to be used in resolving factual disputes, we consider de novo whether defendant has stated a claim 

for ineffective assistance of counsel. 

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¶ 17 To establish ineffective assistance of counsel, a defendant must show (1) that his counsel’s 

representation fell below an objective standard of reasonableness, and (2) but for counsel’s errors, 

there is a reasonable probability that the result of the proceedings would have been different. 

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); People v. Griffin, 148 Ill. 2d 45, 57 

(1992). A “reasonable probability” is a probability sufficient to undermine confidence in the 

outcome. Strickland, 466 U.S. at 694. If a claim may be determined on the basis that there is no 

prejudice, it is not necessary for a reviewing court to consider whether counsel’s performance was 

deficient. See id. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack 

of sufficient prejudice *** that course should be followed.”). 

¶ 18 In Ortega I, we observed that the circuit court determined defendant did not have standing 

to challenge the search of the BMW because the bailee permitted the search, and then, having 

found so, the court essentially concluded its analysis. Ortega I, ¶ 26. We characterized the circuit 

court’s analysis as incomplete. Id. ¶ 27. While there was no dispute that a bailment occurred, or 

that this bailment led to the truck driver having apparent authority to allow the police to search the 

BMW, we found that the truck driver did not have apparent authority to allow the police to open 

the sealed packages in the BMW’s trunk. Id. ¶¶ 27-28. Thus, under United States v. Jacobsen, 466 

U.S. 109, 114 (1984), a warrant was required. Id. ¶ 29. 

¶ 19 In Ortega I, we “agree[d] with defendant that whether a valid warrant existed at the time 

the packages were opened is a question the trial court could not have answered without having 

been presented with actual evidence, rather than just arguments made by attorneys.” Id. ¶ 31. As 

such, we found it was objectively unreasonable for counsel to proceed at the hearing with no 

evidence on this point, and a reasonable probability existed that the result of the proceeding would 

have been different had counsel not failed in this respect. Id. 

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¶ 20 We acknowledged that the United States Supreme Court has held, as an extension of the 

exception to the search warrant requirement for moving vehicles, that the police may search a 

container or package found in an automobile without a warrant if the search of the automobile is 

supported by probable cause or if the police have probable cause to believe the package contains 

contraband or evidence. Id. ¶ 30 (citing California v. Acevedo, 500 U.S. 565, 569, 570, 579-80 

(1991); United States v. Ross, 456 U.S. 798, 825 (1982)). However, we found that the circuit court 

did not reach the issue of whether probable cause existed, and that evidence that could have 

supported or refuted a finding of probable cause was not introduced at the hearing. Id. “In the 

absence of such evidence,” we concluded, “the trial court could [not] have made a finding 

regarding whether probable cause existed for the police to search the sealed packages in the 

BMW’s trunk.” Id. 

¶ 21 Thus, the question now before us is whether trial counsel was ineffective for not presenting 

evidence at the hearing on the motion to quash and suppress regarding whether (1) a valid warrant 

existed at the time the packages were opened, or (2) the police had probable cause to search the 

packages in the trunk. 

¶ 22 At the Franks hearing, evidence regarding the warrant was presented through the testimony 

by Sergeant Thorsen. Thorsen’s testimony provided evidence on all three of the “facts in dispute” 

that defendant has identified on appeal: what time the search of the BMW occurred, whether the 

search occurred before the warrant issued, and whether the packages in the trunk were opened 

before the warrant issued. Moreover, the circuit court’s findings at the Franks hearing indicate 

that, had defense counsel introduced evidence on these “facts in dispute,” the court still would 

have denied the motion to quash and suppress. 

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¶ 23 Thorsen was called as a defense witness at the Franks hearing and testified that, on 

November 2, 2014, he responded to a call regarding the present case by going to the police 

department. While he was there, several officers who were on-scene relayed information to aid 

him in preparing a complaint for a search warrant of the BMW. The on-scene officers reported 

“that they had to hop up onto the second story of the car hauler to view the [BMW].” They further 

reported the truck driver had observed several rectangular, duct-taped packages in the trunk of the 

BMW, under a “shelf” for the spare tire. 

¶ 24 Thorsen agreed that he wrote a report stating that at “approximately 2130 hours,” he and a 

detective met with a circuit court judge. However, he stated that the hour set forth in that report 

was not accurate. Thorsen explained, “I did a supplemental report to that because it was Daylight 

Savings Time. It was an error on my part.” He clarified that his meeting with the judge took place 

at 8:30 p.m., not 9:30 p.m. He further stated that “[j]ust after” the search warrant was signed by 

the judge, he called the detectives who were on scene and they executed the warrant. Prior to that 

time, the on-scene officers were “just holding the vehicle out there” and had not entered the BMW. 

¶ 25 On cross-examination by the State, Thorsen testified that he spoke with several on-scene 

officers while preparing the complaint for a search warrant at the police department. Then, he 

reviewed the warrant with an assistant State’s Attorney. Afterwards, he visited the judge’s home 

and, while under oath, discussed the warrant. Thorsen reiterated that, although the search warrant 

indicated it was signed at 9:30 p.m. and executed at 9:35 p.m., those times were actually 8:30 p.m. 

and 8:35 p.m. Thorsen testified that when he got permission from the judge to execute the warrant, 

he called the officers who were on-scene and they then executed the warrant. Sometime later, he 

contacted the judge to confirm the actual time the warrant was signed and filled out a 

supplementary report providing the correct time. 

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¶ 26 On redirect examination, Thorsen confirmed that one of the on-scene officers wrote in a 

report that, at 8:43 p.m., the transport truck left Naperville. Thorsen stated, “I called them 

immediately after [the warrant] was signed. They verified what was in the packages and then they 

departed.” 

¶ 27 On re-cross examination, the State and Thorsen engaged in the following exchange: 

“Q. Once you got that search warrant signed it takes from 

8:35 p.m. to 8:43 p.m. before that car is in transport to be in a 

controlled delivery, right? 

A. Yes. 

Q. What happens in the course of that eight minutes once 

you call your team and say that there’s a search warrant? 

A. They opened one of the packages and verified what was 

inside—field tested what was inside. 

Q. Then they take off and start delivering it, right? 

A. Yes.” 

¶ 28 The evidence that defendant identified as lacking at the hearing on the motion to quash the 

warrant and suppress evidence—namely, regarding what time the search of the BMW occurred, 

whether the BMW was searched before or after the warrant issued, and whether the packages in 

the trunk were opened before or after the warrant issued—now exists in the record through the 

testimony of Sergeant Thorsen. 

¶ 29 During defense counsel’s argument on the motion, the court asked counsel, “The warrant 

was signed. He calls his brother and sister officers, who are out at the scene, and tell him about it. 

They take a look at what’s inside the packages. It turns out what they suspect. It’s contraband. 

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Then [Thorsen] shows up when the seizure is made later, in Chicago, on Kimball Avenue. Right?” 

Defense counsel answered, “Yes.” 

¶ 30 In announcing its Franks findings, the court explained: 

“I believe then and I believe now that when this truck driver 

told the police what he discovered on his own and showed the police 

what he discovered, there wasn’t a [sic] police activity. There’s no 

4th Amendment concerns because this is a private person who called 

the police and invited them. This is what I’m hauling. This is what I 

have. Take a look at this. I think they have probable cause right then 

and there. I never ever believed that a search warrant was ever 

required on this case because I think this case is written [sic] with 

probable cause from the get-go. Okay. 

With that said, you have someone like Detective now 

Sergeant Thorsen who is listening to this information and with what 

could be described only as the most abundance of caution possible 

puts the cherry on the sundae and decides, well, I’m going to get a 

search warrant also. I’m going to dot every I and cross every T and 

then get a warrant. 

*** 

There was an initial seizure first when the police got there. 

He asked the truck driver and they saw what they saw and then had 

the dog. They were delaying the truck driver. They wanted the dog 

to get there. They wanted to talk to the sergeant. They decided they 

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had to wait for him to draft the warrant and get it signed by a Judge 

and he did so. There were some issues about times and I 

acknowledge there was some confusion about the timing of what 

took place exactly at what time and the sergeant even had to go back 

and correct his report because he neglected to account for Daylight 

Savings Time. *** I don’t think that there’s anything here that they 

need to be sanctioned for so the motion to quash the search warrant 

and suppress the evidence that may have come from the execution 

of the warrant on the Franks v. Delaware standard is respectfully 

denied.” 

¶ 31 According to Thorsen’s testimony at the Franks hearing, the warrant was signed at 8:30 

p.m., and then the search of the BMW and the packages took place between 8:35 p.m. and 8:43 

p.m., while the BMW was still on the “second story” of the transport truck. Based on this 

chronology, we cannot find that, had counsel presented this evidence at the hearing on the motion 

to quash the warrant and suppress evidence, the result would have been different. See Strickland, 

466 U.S. at 694. The court credited Thorsen’s testimony at the Franks hearing, and we see no 

reason why it would have reached a different conclusion regarding his credibility had he testified 

at the hearing on the motion to quash the warrant and suppress evidence. 

¶ 32 Since defendant cannot establish prejudice from counsel’s failure to present this evidence 

at that juncture, we need not determine whether counsel’s performance was deficient. Id. at 697. 

As such, defendant’s contention of ineffectiveness fails. 

¶ 33 We affirm the judgment of the circuit court. 

¶ 34 Affirmed. 

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