Nos. 1-01-1295 &								First Division

1-01-2443 (cons.) 								November 4, 2002

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

							)	Circuit Court of

	Plaintiff-Appellee,				)	Cook County.

							)

v.							)	Nos. 98 CR 9709 &

							)	00 CR 17110

   							)

DAVID LUNDY,					)	The Honorable

							)	Rodolfo Garcia,  		 	Defendant-Appellant.				)	Judge Presiding.

	JUSTICE COHEN delivered the opinion of the court:

	On April 1, 1998, defendant David Lundy was charged by information (98 CR 9709) with one count of possession of cocaine and one count of possession of heroin.  720 ILCS 570/402(c)

(West 1992).  While on pretrial release, defendant was also charged by information (00 CR 17110) with one count of possession of cocaine with intent to deliver and one count of possession

of heroin with intent to deliver.  720 ILCS 570/401(d) (West 1992).  On February 5, 2001, a

bench trial was held in case number 00 CR 17110.1  The trial court found defendant guilty of both counts of possession of a controlled substance with intent to deliver and set March 8, 2001, as

both the trial date in case number 98 CR 9709 as well as the sentencing date for both cases.  On

March 8, 2001, following a bench trial in case number 98 CR 9709, defendant was found guilty of both counts of possession of a controlled substance.  Defendant subsequently made an oral motion for a new trial.  The trial court denied the motion.  The trial court then sentenced

defendant to concurrent prison terms of one year for possession of cocaine and one year for

possession of heroin (98 CR 9709).  Defendant was also sentenced to concurrent prison terms of 

seven years for possession of cocaine with intent to deliver and seven years for possession of

heroin with intent to deliver (00 CR 17110).  Defendant's seven-year sentence for possession of a

controlled substance with intent to deliver was predicated on his status as a Class X offender (730

ILCS 5/5-5-3(c)(8) (West 1998)).  The trial court ordered defendant's possession sentences and

sentences for possession with intent to deliver to be served consecutively.    

	On March 29, 2001, defendant filed two separate notices of appeal of his convictions and

sentences in both case number 98 CR 9709 and case number 00 CR 17110.  Both appeals were

assigned separate appellate court numbers.  On December 26, 2001, the two appeals were

consolidated.  On appeal, defendant argues that: (1) the State failed to prove him guilty beyond a

reasonable doubt in case number 98 CR 9709 as the State failed to establish that the narcotics

recovered from defendant were the same narcotics that were admitted at trial; (2) the trial court

improperly shifted the burden of proof to defendant in case number 98 CR 9709, thereby violating

defendant's due process rights; (3) defendant was denied the effective assistance of counsel

predicated on counsel's failure to file a motion to quash defendant's arrest and suppress evidence in case numbers 98 CR 9709 and 00 CR 17110; and (4) both the imposition of a Class X sentence

based on prior felony convictions (730 ILCS 5/5-5-3(c)(8) (West 1998)) and consecutive sentences (730 ILCS 5/5-8-4(h) (West 2000)) are unconstitutional based on the rule announced in

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  For the reasons that follow, we vacate defendant's convictions and sentences for possession of a

controlled substance (98 CR 9709) but otherwise affirm. 

	BACKGROUND

A. Case Number 00 CR 17110

	Officer Robert Kujawski testified that on May 31, 2000, at approximately 10:35 p.m., he

set up surveillance near 602 North Central Park Avenue in Chicago, Illinois.   According to

Officer Kujawski, the area surrounding 602 North Central Park Avenue was a "known location

for high narcotics sales."  While conducting surveillance from a distance of approximately 75 feet,

Officer Kujawski observed defendant engage in what he suspected to be three separate narcotics

transactions.  Officer Kujawski testified that the lighting conditions were "artificial" and that he

had a clear view of defendant.  

	Officer Kujawski observed defendant standing on the corner of 602 North Central Park

Avenue yelling "Rocks, blows."  Officer Kujawski testified that on three separate occasions defendant would engage in brief conversation with an unknown individual, accept an unknown

amount of United States currency, bend down, pick up a small box, remove an item, replace the

box and hand the item to the unknown individual.  Officer Kujawski further testified that

defendant would then walk northbound and hand the United States currency to a black male

wearing a black jacket and blue jeans.  According to Officer Kujawski, the box that defendant

picked up and from which he removed items during the suspected narcotics transactions was

located near the base of the sidewalk next to the grass, approximately a foot to two feet from

where defendant was standing.

	After observing defendant engage in the third such transaction, Officer Kujawski radioed his partner, Officer Bora, to detain both defendant and the man wearing the black jacket and blue

jeans.  Officer Kujawski remained at the surveillance location and observed Officer Bora detain

defendant.  The man wearing the black jacket and blue jeans fled on foot, evading police custody. 

Officer Kujawski then left the surveillance location and recovered the box at the base of the

sidewalk next to the grass.  Upon opening the box, Officer Kujawski found five plastic "baggies"

containing "white rocks" and six tinfoil packets containing "white powder."  A custodial search of

defendant's person recovered $10.  At the police station, Officer Kujawski inventoried the five

plastic bags and the six tinfoil packets under inventory number 2362677.  Officer Kujawski did

not inventory the $10 recovered from defendant.

	On cross-examination, Officer Kujawski was asked a series of questions with respect to

his surveillance location.  Officer Kujawski testified that he was conducting surveillance from a

slightly elevated porch located approximately four or five houses down from where defendant was

standing.  Officer Kujawski also testified that he had no knowledge of Officer Bora's location

prior to detaining defendant.  Officer Kujawski admitted that he was unable to describe the

clothing defendant was wearing at the time of the incident.  He further admitted that he was

unable to remember the sex or the clothing of the three unknown individuals who approached

defendant and purchased narcotics.

	The parties then stipulated that Melissa McCann, a forensic scientist employed by the

Illinois State Police Crime Lab, received six items containing suspected heroin and five items

containing suspected cocaine under inventory number 2362677.  After chemical analysis, McCann determined that one of the items containing suspected heroin weighed 0.1 gram and tested

positive for heroin.  The other items containing suspected heroin weighed an estimated 0.5 gram and were not analyzed.  McCann further determined that one of the items containing suspected

cocaine weighed 0.1 gram and tested positive for cocaine.  The other four items containing

suspected cocaine weighed an estimated 0.7 gram and also were not analyzed.  The parties further

stipulated that McCann "employed proper means in testing the items, *** her findings were within

a reasonable degree of scientific certainty, and the chain of custody was intact at all times." 

Defendant neither testified nor called witnesses on his behalf.

	After closing arguments, the trial court found defendant guilty of both counts of

possession of a controlled substance with intent to deliver.  The trial court then set March 8,

2001, as both the trial date for case number 98 CR 9709 and the sentencing date for each case. 

B. Case Number 98 CR 9709

	Officer Brian Hansen testified that on March 1, 1998, around 5:15 p.m., he and his

partner, Officer Frenzel, received a radio call while in their squad car in the vicinity of 1014 South

Racine Avenue in Chicago, Illinois.  The call described a black male suspected of purchasing

narcotics and reported that the suspect was walking northbound through a Chicago House

Authority (CHA) courtyard toward 1014 South Racine Avenue.  As Officer Hansen was driving,

he observed a man fitting the radio description walking across the CHA courtyard toward 1014

South Racine Avenue.  Officer Hansen immediately made a U-turn traveling northbound on South

Racine Avenue to an alley located at 1014 South Racine Avenue.  Officer Hansen then headed

westbound down the alley when he observed defendant exiting the CHA property.

	Officer Hansen parked his vehicle, exited and approached the suspect, later identified as

defendant, and ordered him to stop.  Defendant continued to walk northbound asking, "What do

you want with me?"  Officer Hansen testified that from a distance of 20 to 25 feet, he then observed defendant "place his right hand into his right jacket pocket and toss a clear plastic bag

containing numerous multi-colored plastic bags and a shiny metal object to the ground."  Officer

Hansen again ordered defendant to stop, but defendant once again ignored the officer's command. 

Officer Hansen then chased after defendant and detained him.  In response to the prosecutor's

characterization of the evidence, Officer Hansen testified that after he detained defendant he

recovered the "item" that defendant had tossed to the ground.  He later inventoried that "item"

under inventory number 1951630.       

	On cross-examination, Officer Hansen admitted that he could not remember the specific

description of the man reported in the radio call.  Officer Hansen further testified that defendant

was with a woman at the time of his arrest.   

	The parties then stipulated that Clifford T. McCurdy, a forensic scientist employed by the

Illinois State Police Crime Lab, received six "packages" containing a "chunky substance" and one

"package" containing "powder" under inventory number 1951630.  After chemical analysis,

McCurdy determined that the six "packages" containing a "chunky substance" weighed 1.06 grams and tested positive for cocaine.  McCurdy further determined that the single "package"

containing "powder" weighed 0.1 gram and tested positive for heroin.

	Defendant then called his cousin, Haveard Welch, to testify on his behalf.  Haveard

provided a contrary account of what occurred on the afternoon of March 1, 1998.  Haveard

testified that on the date in question, at approximately 4 p.m., he was driving with defendant near

the intersection of Racine Avenue and Taylor Street when they were pulled over by a police

vehicle.  According to Haveard, a police officer asked him to exit the vehicle and another officer

asked defendant to exit the vehicle.  Both Haveard and defendant complied with the officers' commands.  Haveard was then searched by the same police officer who ordered him to exit the

vehicle.  After the officer failed to find anything, Haveard testified that the officer "told him to get

lost."  Haveard further testified that he had no independent knowledge of what happened to

defendant after he left, but he later discovered that defendant was incarcerated.    

	On cross-examination, Haveard admitted that he did not remember whether the officers

were in uniform.  He further admitted that he did not remember whether the officers were driving

a marked or unmarked police vehicle or whether the officers activated their flashing lights and

sirens.  

	After closing arguments, the trial court found defendant guilty of both counts of

possession of a controlled substance.  Defendant made an oral motion for a new trial which  the

trial court subsequently denied.  The court then sentenced defendant for both his possession

convictions (98 CR 9709) and his earlier convictions for possession with intent to deliver (00 CR

17110).  Defendant was sentenced to concurrent prison terms of one year for possession of

cocaine and one year for possession of heroin (98 CR 9709).  Defendant was also sentenced to

concurrent prison terms of seven years for possession of cocaine with intent to deliver and seven

years for possession of heroin with intent to deliver (00 CR 17110).  Defendant's seven-year

sentence for possession of a controlled substance with intent to deliver was predicated on his

status as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 1998)).  The trial court then ordered

defendant's possession sentences and sentences for possession with intent to deliver to be served

consecutively.  This appeal followed.  

ANALYSIS

A. 98 CR 9709

	Defendant first argues that the State failed to prove him guilty beyond a reasonable doubt

of possession of a controlled substance in case number 98 CR 9709 because the State failed to

establish that the narcotics recovered from defendant were the same narcotics that were admitted

at trial.  

	"Generally speaking, a defendant is precluded from attacking or otherwise

contradicting any facts to which he has previously stipulated.  [Citation.]  Here,

defendant did stipulate to certain facts at trial.  However, defendant does not now

attempt to attack or otherwise contradict those specific facts but, rather simply

contends that given all of those stipulated facts as well as their plain, natural and

ordinary meaning [citation], the State nevertheless failed to establish a sufficiently

complete chain of custody.  [Citation.]"  People v. Gibson, 287 Ill. App. 3d 878, 880 (1997).

	"A criminal conviction will not be set aside unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt of the defendant's guilt."  People v. Clemons, 277 Ill. App. 3d 911, 923 (1996).  "In addressing the question of the sufficiency of the evidence it is

not the court's role to reweigh the evidence."  People v. Hendricks, 325 Ill. App. 3d 1097, 1110 (2001).  Rather, the relevant question on review is whether, after considering the evidence in the

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

of the crime beyond a reasonable doubt.  People v. Jimerson, 127 Ill. 2d 12, 43-44 (1989).

"Evidence of a proper chain of custody is required where physical evidence is not readily identifiable or is susceptible to tampering or contamination.  The chain of

custody must be sufficiently complete to make it improbable that the evidence has

been subject to tampering or accidental substitution.  [Citation.]  In the absence of

evidence that the sample has been compromised, the State need not exclude every

possibility of tampering or contamination, only that it took reasonable protective

measures after the evidence was seized and that it is unlikely that the evidence has

been altered.  [Citation.]

	Once the State has established the probability that the evidence was not

compromised, and unless the defendant shows actual evidence of tampering or

substitution, deficiencies in the chain of custody go to the weight, not admissibility,

of the evidence.  [Citation.]  Thus, even where there is a missing link in the chain

of custody, trial courts have properly admitted evidence where there was testimony

which sufficiently described the condition of the evidence when delivered which

matched the description of the evidence when examined.  [Citations.]"  People v. Bynum, 257 Ill. App. 3d 502, 510 (1994).

	Defendant asserts that because the State failed to present any evidence as to what

safekeeping procedures, if any, were utilized to assure that the narcotics taken from defendant had

not been contaminated, altered or substituted, defendant's conviction for possession of a

controlled substance should be reversed.  Specifically, defendant asserts that "[Officer] Kujawski2 did not testify that he placed the items in any kind of sealed container or bag, nor that the state

crime lab received the items in a sealed condition; *** [Officer] Kujawski did not testify that he

kept the items in any kind of locked container or compartment, nor that the items were stored

separate from any other items of suspected contraband; and *** there was no testimony as to who

stored the items, who had access to the items, or where the items were stored."  Defendant cites

to People v. Rhodes, 81 Ill. App. 3d 339 (1980), People v. Valentin, 66 Ill. App. 3d 488 (1978), and People v. Pagliara, 47 Ill. App. 3d 708 (1977) to support his contention that the State must present evidence of the extensive measures noted above in order to establish a proper chain of

custody. 

	At trial, Officer Hansen presented the following testimony on the issue of chain of

custody:

	"Q. [PROSECUTOR:] What did [defendant] do?

	A. [OFFICER HANSEN:] He looked in my direction saying, 'What do you

want with me[?]'  He then continued to walk northbound.  At that time he placed

his right hand into his right jacket pocket and tossed to the ground a clear plastic bag containing numerous multi-colored plastic bags and a shiny metal object

***.

* * * 

	Q. [PROSECUTOR:] Did you recover the item that he had dropped to the ground?

	A. [OFFICER HANSEN:] Yes.

	Q. [PROSECUTOR:] And did you subsequently inventory that item that

you found the defendant to have?

	A. [OFFICER HANSEN:] Yes.

	Q. [PROSECUTOR:] And did you inventory it under Inventory Number

1951630?

	A. [OFFICER HANSEN:] Yes."  (Emphasis added.)

	Following Officer Hansen's testimony, a stipulation was entered into between the parties:  

	"[PROSECUTOR]: Your Honor, at this time we seek leave to receive a

stipulation.  That stipulation, by and between the parties, is that Inventory Number

1951630 was received by Forensic Scientist Clifford T. McCurdy, of the Illinois

State Police Crime Lab, Division of Forensic Services, that Clifford T. McCurdy

would be qualified to testify as an expert in the area of forensic science; that he

received *** 6 packages of a chunky substance and he tested those 6 packages and found it [sic] to contain 1.06 grams of cocaine.  He also received one package and found it to contain 0.1 grams [sic] of powder ***  which was heroin; and there were two plastic bags with residue where there was no analysis done.

	DEFENSE COUNSEL: So stipulated, Your Honor, that that would be the testimony of the chemist.

	THE COURT: All right.  That stipulation will be accepted as part of the

evidence."  (Emphasis added.)

	The State does not dispute that it failed to present specific evidence as to what detailed

safekeeping procedures took place.  Rather, the State asserts that the "combined testimony of

[Officer Hansen] and the stipulation from the forensic scientist [McCurdy] who performed the

laboratory analysis was sufficient to establish the chain of custody."  

	While we agree that Rhodes, Valentin and Pagliara do not establish a steadfast rule that the State must demonstrate such extensive measures in order to sustain its burden of establishing

a proper chain of custody, the State was required to prove that it was improbable that the

narcotics recovered from defendant had been compromised.  Bynum, 257 Ill. App. 3d at 510.  Therefore, the State was required to show, at the very least, that the condition of the narcotics delivered by Officer Hansen matched the description of the narcotics examined by McCurdy. 

Bynum, 257 Ill. App. 3d at 510.  On the record presented, the State has failed to do so.  The only testimony provided by Officer Hansen with respect to chain of custody was that he recovered

from defendant "a clear plastic bag containing numerous multi-colored plastic bags and a shiny

metal object" and that he subsequently inventoried this item under inventory number 1951630. 

Officer Hansen did not testify as to the exact number of multicolored plastic bags he recovered. 

Officer Hansen did not provide a description of what he found inside the multicolored plastic bags

or what he believed the shiny metal object to be.  Additionally, Officer Hansen did not testify as to

the weight of the multi-colored plastic bags or the shiny metal object he recovered.  

	Because Officer Hansen did not provide this testimony, the only description that matches

between Officer Hansen's testimony and McCurdy's stipulated testimony is the inventory

number–1951630.  Moreover, there are inconsistencies between Officer Hansen's description of

what he recovered from defendant and the stipulation entered describing what McCurdy examined.  Officer Hansen testified that he recovered and inventoried numerous multicolored

"bags."  The stipulation, on the other hand, states that McCurdy received and tested a total of

seven "packages."  

	Most important, however, is the failure of the stipulation to describe the "packages" at all. 

We would be willing to discount the bags/packages distinction if other evidence provided a

certain indicia of reliability that the "bags" obtained by Officer Hansen were the same as the

"packages" examined and tested by McCurdy.  The State could have easily demonstrated this by

wording the stipulation to state that McCurdy received and tested six multicolored "packages" and one tinfoil or shiny metal "package."  Instead, the only evidence the State provided to demonstrate that the narcotics recovered by Officer Hansen were the same as those examined and

tested by McCurdy was the inventory number.  We hold that the State cannot demonstrate a

reasonable probability that the narcotics used to convict a defendant have not been altered or

substituted–thus establishing a complete chain of custody–by merely providing an inventory

number without other corroborating evidence. 

	Furthermore, we do not find that defendant's failure to argue, either at trial or on appeal,

that the narcotics recovered by Officer Hansen were contaminated, tampered with or substituted

militates against reversal of defendant's conviction.  Based on our determination that the State has

failed to sustain its burden of proof, defendant's burden to show actual evidence of tampering or

substitution was never triggered.  See Bynum, 257 Ill. App. 3d at 510 (defendant is not required to show actual evidence of tampering or substitution unless the State has first established the

probability that the evidence was not compromised).

	Here, the State has failed to demonstrate a reasonable probability that the narcotics evidence used to convict defendant had not been altered or substituted.  Due to this failure, the

narcotics evidence should not have been admitted at trial.  Without the narcotics evidence, there

can be no crime.  Accordingly, pursuant to our authority under Supreme Court Rule 615(b)(4),

we vacate defendant's convictions and sentences on the possession charges (98 CR 9709).  134

Ill. 2d R. 615(b)(4); People v. Crisp, 242 Ill. App. 3d 652, 665 (1992).  Because this issue is dispositive, we need not address the remaining arguments defendant asserts on appeal as to case

number 98 CR 9709.  We now address defendant's arguments with respect to case number 00

CR17110.

B. 00 CR 17110

1. Ineffective Assistance of Counsel

	Defendant next argues that his trial counsel was ineffective in case number 00 CR 17110

for failing to file a motion to quash his arrest and suppress the fruits of that arrest. 

	We review claims of ineffectiveness of counsel under the two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984), which our supreme court recognized in People v. Albanese, 104 Ill. 2d 504, 526-27 (1984).  To determine whether there has been a violation of the defendant's sixth amendment right

to effective assistance of counsel, the defendant must show: (1) that his counsel's "representation fell below an objective standard of reasonableness"; and (2) that there is a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different."  Strickland, 466 U.S. at 694, 80 L. Ed .2d at 698, 104 S. Ct. at 2068; People v. Shatner, 174 Ill. 2d 133, 144 (1996); People v. Consago, 170 Ill. App. 3d 982, 987 (1988).  "If an ineffective-assistance claim can be disposed of on the ground that defendant did not suffer sufficient prejudice, the court need not decide whether counsel's errors were serious enough to

constitute less than reasonably effective assistance under the deficiency prong."  People v. Pacheco, 281 Ill. App. 3d 179, 183 (1996), citing People v. Eddmonds, 143 Ill. 2d 501, 512 (1991).

	"A trial counsel's failure to file a motion to [quash arrest or] suppress [evidence] does not

establish incompetent representation when that motion would be futile; as it is a matter of trial

strategy to file such a motion, counsel's decision will be accorded great deference. [Citation.]

Such decisions by counsel are thus not ordinarily challengeable on review as ineffective-assistance

claims. [Citation.]"  Pacheco, 281 Ill. App. 3d at 183.  "To establish the prejudice prong of Strickland in the context of a motion to [quash arrest or] suppress [evidence], a defendant must show that a reasonable probability exists both that the motion would have been granted and that

the outcome of the trial would have been different had the evidence been suppressed."  People v. Nunez, 325 Ill. App. 3d 35, 42 (2001), citing People v. Orange, 168 Ill. 2d 138, 153 (1995); People v. Myers, 246 Ill. App. 3d 542, 545 (1993).  " ' "A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " Nunez, 325 Ill. App. 3d at 42, quoting People v. Erickson, 183 Ill. 2d 213, 224 (1998), quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

	Defendant first argues that his trial counsel was ineffective for failing to file a motion to

quash his arrest where the testimony of the surveillance officer demonstrating that his partner had

probable cause to arrest defendant was "unbelievable."  

	At trial, the surveillance officer, Officer Kujawski, was the only witness to testify.  Officer

Kujawski testified that he set up surveillance near 602 North Central Park Avenue--a "known location for high narcotics sales."  While conducting surveillance, Officer Kujawski observed

defendant engage in what he suspected to be three separate narcotics transactions.  Officer

Kujawski testified that he overheard defendant yelling "Rocks, blows."3  Defendant would then engage in brief conversation with an unknown individual, accept an unknown amount of United

States currency, bend down, pick up a small box, remove an item, place the box back down and

hand the item to the unknown individual.  Officer Kujawski further testified that between

transactions he observed defendant walk northbound and hand the United States currency to a

black male wearing a black jacket and blue jeans.  After observing defendant engage in the third

such transaction, Officer Kujawski radioed his partner, Officer Bora, to detain both defendant and

the man wearing the black jacket and blue jeans.  Officer Kujawski remained at the surveillance

location and observed Officer Bora detain defendant.  The man wearing the black jacket and blue

jeans fled on foot evading police custody.  

	Defendant claims, in a conclusory fashion, that Officer Kujawski's testimony is

"unbelievable."  We note, however, that in order to establish that his trial counsel was ineffective,

defendant is required to show that if his trial counsel had filed a motion to quash defendant's

arrest there is a reasonable probability that the motion would have been granted.  People v. Nunez, 325 Ill. App. 3d at 42.  Here, in light of the fact that the trial court found defendant guilty, it implicitly found Officer Kujawski's testimony to be credible.  See People v. Brisbon, 106 Ill. 2d 342, 360 (1985) (it is the responsibility of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the reasonable inferences to be drawn

therefrom).  Therefore, we find that it would have been futile for defendant's trial counsel to file a

motion to quash defendant's arrest based on the "unbelievability" of Officer Kujawski's testimony.  

	Furthermore, we find that any motion filed by defendant's trial counsel to quash defendant's arrest would have been futile because Officer Bora clearly had probable cause to

arrest defendant.  

"Probable cause to arrest exists where the facts and circumstances known to the

police officer at the time of the arrest, are sufficient to warrant a person of

reasonable caution to believe that an offense had been committed *** by the

person arrested.  [Citation.]  The existence of probable cause is determined by the

totality of the circumstances at the time of the arrest.  [Citation.]  A determination

of probable cause is governed by commonsense, practical considerations and not

by technical legal rules.  [Citation.]" People v. Metcalfe, 326 Ill. App. 3d 1008, 1012 (2001).

	"When officers are working in concert, probable cause can be established

from all the information collectively received by the officers even if that

information is not specifically known to the officer who makes the arrest.

[Citation.]  Certainly, arresting officers may rely upon dispatches to make arrests

even if they are unaware of specific facts that established probable cause to make

the arrest.  [Citation.]  In such a case, however, the State must demonstrate that

the officer who directed the dispatch to be issued possessed facts sufficient to

establish probable cause to make the arrest.  [Citation.]" People v. Bascom, 286 Ill. App. 3d 124, 127-28 (1997).

	Based on the totality of the circumstances at the time of defendant's arrest, we find that

Officer Kujawski, who radioed Officer Bora to arrest defendant, possessed facts sufficient to

establish probable cause to arrest defendant as a person of reasonable caution could believe that

defendant had committed three separate illegal narcotics transactions.  As Officer Bora was

properly relying on Officer Kujawski's radio dispatch when arresting defendant, the State was not

required to independently establish probable cause for Officer Bora's arrest of defendant.	

	Defendant further asserts, however, that his trial counsel was ineffective for failing to file a

motion to suppress the box recovered and subsequently searched by Officer Kujawski.  According

to defendant, he had a "reasonable expectation of privacy in his box" and "because none of the

exceptions to the warrant requirement appl[y] * * *, the search of it was illegal."  

	The State does not dispute that defendant had a privacy interest in the box.  Rather, the

State asserts that Officer Kujawski's search of the box was a valid warrantless search incident to

arrest pursuant to section 108-1(d) of the Illinois Code of Criminal Procedure of 1963 (725 ILCS

5/108-1(d) (West 2000)).  Section 108-1(d) states: "When a lawful arrest is effected a peace

officer may reasonably search the person arrested and the area within such person's immediate

presence for the purpose of *** [d]iscovering any instruments, articles, or things which may have

been used in the commission of, or which may constitute evidence of, an offense."  725 ILCS

5/108-1(d) (West 2000).  Because we have already determined that defendant's arrest was valid,

we find that Officer Kujawski similarly had probable cause to seize the box.  We therefore focus

our analysis solely on whether Officer Kujawski's warrantless "search" of the box was valid.

	"The fourth amendment to the United States Constitution protects people from unreasonable searches and seizures of their persons, houses, papers and

effects.  (U.S. Const., amend. IV.).  A search conducted without a warrant is per se unreasonable unless it is a search conducted pursuant to consent, a search incident

to arrest, or a search predicated upon probable cause where there are exigent

circumstances which make it impractical to obtain a warrant. [Citation.] A

warrantless search incident to arrest is valid, provided that the search was

contemporaneous with the arrest, was conducted to prevent the arrestee's seizure

of a weapon or his destruction of evidence, and was limited to the area within the

arrestee's immediate control. [Citations.]"  People v. Alexander, 272 Ill. App. 3d 698, 704 (1995).

 	We find that the record presented on appeal fails to support the conclusion that if trial counsel had filed a motion to suppress the box and its contents, the motion would have been

granted.  The record clearly demonstrates that Officer Kujawski's search of the box was

contemporaneous with defendant's arrest and that the search was limited to an area within

defendant's immediate control.  Officer Kujawski testified that he left his surveillance position

immediately after Officer Bora detained defendant and that it took him 30 to 40 seconds to reach

the scene of the crime and recover the box.  Additionally, Officer Kujawski testified that, during

the course of the narcotics transactions, defendant stood one to two feet from the box and that on

three separate occasions defendant bent down, picked up the box, removed an item and placed the

box back down.

	What the record does not demonstrate, however, is whether Officer Kujawski's search of

the box was conducted in order to prevent defendant's seizure of a weapon or his destruction of the box and/or its contents.  The only testimony Officer Kujawski provided with respect to his

search of the box was that he left his surveillance location after Officer Bora detained defendant,

walked to the scene of the crime and recovered the box at the base of the sidewalk next to the

grass, and that upon opening the box he discovered five plastic "baggies" containing "white rocks"

and six tinfoil packets containing "white powder."  The record is devoid of evidence with respect

to defendant's exact location at time of the search.  For example, the record fails to address such

questions as: Was defendant handcuffed at the time of the search?  Was defendant locked in the

squad car at the time of the search?  In what direction did the man wearing the black jacket and

blue jeans who took the money from defendant run as Officer Bora approached?  Was there a

threat that this other man could return to the scene of the crime and destroy the box or its

contents?  Absent answers to these questions, we cannot say that had defendant's trial counsel

filed a motion to suppress the box and its contents, there was a reasonable probability that the

motion would have been granted.  

	It is defendant's burden to demonstrate that he has received ineffective assistance of

counsel.  Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Shatner, 174 Ill. 2d 133, 144 (1996); People v. Consago, 170 Ill. App. 3d. 982, 987 (1988).  To prevail on his claim that his trial counsel was ineffective for failing to file a motion to quash arrest or

suppress evidence, defendant was required to prove that "a reasonable probability exist[ed] both

that the motion would have been granted and that the outcome of the trial would have been

different had the evidence been suppressed." People v. Nunez, 325 Ill. App. 3d 35, 42 (2001).   Based on the record, defendant has failed to sustain this burden.  See People v. Willis, 235 Ill. App. 3d 1060, 1069 (1992) (finding that defendant failed to satisfy the prejudice prong of Strickland where the record did not support the conclusion that his trial counsel was ineffective for filing an improper speedy trial motion).  

	Because defendant is unable to demonstrate sufficient prejudice resulting from his trial

counsel's failure to file either a motion to quash defendant's arrest or to suppress the box and its

contents, we need not reach the first prong of Strickland, i.e., whether counsel's errors were serious enough to constitute less than reasonable effective assistance.  Pacheco, 281 Ill. App. 3d at 183.

2. Apprendi

	Finally, defendant argues that his sentence in case number 00 CR 17110 as a Class X

offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-

3(c)(8) (West 1998)) (the Code) predicated on his prior felony convictions is unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000).  We disagree.

	In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."  (Emphasis

added.)  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.  By its own terms, the Apprendi rule does not extend to recidivist statutes.  We decline to depart from settled precedent finding section 5-5-3(c)(8) of the Code constitutional under Apprendi.  People v. Young, No. 1-00-3525, slip op. at 14-16 (September 23, 2002); People v. Echols, 325 Ill. App. 3d 515, 517 (2001); People v. Childress, 321 Ill. App. 3d 13, 27 (2001); People v. Roberts, 318 Ill. App. 3d 719, 729 (2000); People v. Ramos, 318 Ill. App. 3d 181, 193 (2000); People v. Lathomn, 317 Ill. App. 3d 573, 587 (2000).  

CONCLUSION

	Because the State failed to demonstrate a reasonable probability that the narcotics

evidence used to convict defendant in case number 98 CR 9709  had not been altered or

substituted, we vacate defendant's convictions and sentences for possession of a controlled

substance.  Defendant's convictions and sentences for possession of a controlled substance with

intent to deliver (number 00 CR 17110) is affirmed.

	Vacated in part; affirmed in part.

	McNULTY , J., and GORDON, P.J., concur.and