Opinion
1-18-1359
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DELEGANCE CRAWL, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 17 CR 7134 Honorable William B. Raines, Judge, presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.
ORDER
REYES, PRESIDING JUSTICE
¶ 1 Held: The trial court did not err in denying defendant's motion to suppress evidence where the police officers were justified in stopping and searching defendant.
¶ 2 Following a bench trial, defendant Delegance Crawl was found guilty of six counts of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use or possession of a weapon by a felon (UUWF). The trial court merged seven counts and sentenced defendant on one count of AUUW to three years' imprisonment. On appeal, defendant argues we must reverse his conviction where the trial court improperly denied his motion to suppress. For the following reasons, we affirm.
Defendant is also known as "Delagance Crawl."
¶ 3 Defendant was charged by indictment with six counts of AUUW and two counts of UUWF premised on his possession of a firearm and ammunition on or about April 10, 2017. Relevant here, AUUW count I alleged defendant knowingly carried a handgun on or about his person when not on his land or in his abode, the firearm was uncased, loaded, and immediately accessible, and he had not been issued a valid concealed carry license (CCL) at the time of the offense (720 ILCS 5/24-1.6(a)(1)/(3)(A-5) (West 2016)).
¶ 4 Prior to trial, defendant filed a "MOTION TO SUPPRESS ILLEGALLY SEIZED EVIDENCE," alleging that his "stop, search and seizure" were not reasonable as no reasonable person could have inferred from his conduct at the time that he violated any law.
¶ 5 At the hearing on defendant's motion, Chicago police officer Mathew Cadman testified that he had been with the Chicago Police Department for 19 years, and in the Fifth District for over 10 years. Around 12:17 p.m. on April 17, 2017, he was walking in full uniform from 130th Street and Ellis Avenue to 130th Street and Champlain Avenue in Chicago, Illinois, located within the Fifth District, with Lieutenant Elizabeth Michner and Sergeant Andrew Stewart. The officers were at that location to make themselves "available to the public" following a homicide that occurred there the previous night. No one was in custody for the homicide.
Cadman testified the incident occurred on April 17, 2017. At trial, he testified the incident occurred on April 11, 2017. However, the parties agree that, as alleged in the indictment and testified to by Stewart at trial, the incident occurred on April 10, 2017.
¶ 6 On the 13000 block of Champlain Avenue, Cadman observed defendant, whom he identified in court, walking from a housing unit. Defendant had his head down and, if he continued on his path, would have bumped into the officers. He was not walking towards parked vehicles because there was not a parking lot there. When Cadman was within six feet of defendant, Cadman said "good morning." Defendant looked in Cadman's direction "and started to shout, Porcha, Porcha, they're trying to stop me, they're trying to get me." Cadman did not see anyone else present other than his fellow officers. When defendant started yelling, Cadman moved towards him. Defendant, who was facing Cadman and still within six feet, began to "slap an object" in the pocket of his "windbreaker-type" coat. Defendant did this "not more than two times" with his open right hand. Defendant did not reach into his pocket and Cadman could not see what object defendant slapped.
The name defendant calls out is variously spelled as "Porcha" and "Porche" in the reports of proceedings. As Porcha Vaughn, defendant's girlfriend, testified her first name is spelled "Porcha," we use that spelling.
¶ 7 Cadman testified he was "concerned that there was something in that coat pocket *** so [he] approached and grabbed [defendant's] hand and grabbed the object from the coat." Stewart grabbed defendant's other arm. Cadman clarified that he only touched the outside of defendant's coat and felt an object that "seemed like a small framed pistol." Cadman alerted Michner and Stewart that defendant had a firearm, which he then removed from defendant's pocket. The firearm was loaded. Cadman could not recall if defendant was handcuffed before or after the firearm was recovered.
¶ 8 Cadman did not ask defendant if he was entitled to possess the firearm. Once defendant was in custody, Cadman searched defendant's backpack and recovered suspect cannabis. The officers did not have a warrant to arrest or search for defendant, and Cadman had not seen defendant commit a crime prior to Cadman touching defendant's coat. Defendant did not give permission to search, and Cadman did not seek it.
¶ 9 On cross-examination, Cadman testified that, between defendant's yelling and grabbing at his jacket "at least twice," he began to feel concerned for his safety. Cadman was concerned about his safety because defendant was yelling in close proximity, within arm's length, and Cadman could not see who defendant was yelling at, did not know if defendant was sick or being pursued, and did not know what defendant was grabbing at. Cadman further explained that the area had experienced "a number of police involved shootings," including one Cadman had been involved in years prior; and "there was a homicide there the night before" involving a firearm.
¶ 10 Cadman reached directly for the area where defendant was grabbing and did not conduct a pat down starting at defendant's shoulders. When Cadman felt the object, he immediately recognized it was a handgun based on his training and experience with firearms. Cadman recovered the handgun. When asked if defendant presented a CCL or FOID card to the officers, Cadman responded, "No, ma'am. The *** defendant was upset, he was shouting, he wasn't answering our questions, we were trying to calm him down. Never did he state that he had one or anything like that." Defendant did not later present a CCL or FOID card to the officers during processing.
¶ 11 On redirect examination, Cadman testified that he did not tell defendant to stop reaching towards his coat or ask him what he was reaching for prior to grabbing his arm. Defendant was upset and shouting after the firearm was recovered and he was handcuffed. Cadman explained his reasoning for searching defendant: "I suppose in the totality, in addition to slapping his coat, there was an object in the coat that I could see and just - it struck me as unusual that a person was - I had no idea why was screaming, he was completely normal before he looked in my direction, he was just walking and then he started shouting that someone was trying to get him."
¶ 12 Porcha Vaughn testified that she lived on the 13000 block of Champlain Avenue. Around 12 p.m. on April 10, 2017, defendant was with her at her home while she cooked breakfast. At some point defendant took the garbage out, then walked towards his vehicle, which was parked in a lot approximately half a mile away. Defendant's vehicle was visible from her front door. Vaughn was washing dishes when she heard defendant call her name, so she looked out of her kitchen window. Vaughn saw defendant coming back towards her house with his hands up holding his phone and keys and saying, "they trying to lock me up." Vaughn exited her front door and saw three or four male officers patting defendant down. The officers began walking defendant "towards the car" and she asked why they "lock[ed] him up." The officers responded, "just for some weed, some petty weed." Vaughn did not see the officers take anything off defendant.
¶ 13 On cross-examination, Vaughn testified she had a misdemeanor conviction for theft. She and defendant had been in a relationship for a year and a half and were together at the time of testifying. Defendant had "weed" at her house the day of his arrest. Vaughn did not see the arresting officers with a firearm they took from defendant, nor did they mention a firearm to her, instead saying" [defendant] was going to be right out." Vaughn learned defendant was charged with possession of a firearm at the police station.
¶ 14 The trial court denied defendant's motion. In its ruling, the court found Cadman to be credible. It noted Cadman's testimony that the officers were at the scene due to a homicide the night before, it was a "high crime area" where Cadman had previously been involved in a shooting, and Cadman found defendant's reaction to Cadman's greeting him "strange." This, coupled with the fact that the officers were in close proximity to defendant and defendant's "patting his pocket," raised Cadman's suspicion that defendant was armed, so Cadman did a limited pat-down for his safety.
¶ 15 The court then compared Cadman's testimony with Vaughn's, which the court found only partially credible, noting that she was inside cooking breakfast and viewed only part of the events. The court concluded that, based on defendant's actions alone, Cadman had "probable cause to stop and do a limited search" of defendant. It found Terry v. Ohio, 392 U.S. 1 (1968), applied, noting that, although defendant could yell all he wanted, once he started patting his pocket and walking away from the officers, they had reasonable suspicion to stop him and conduct a limited pat down for their own safety.
¶ 16 Defendant filed a motion to reconsider the denial of his motion, which following arguments, the trial court denied.
¶ 17 At trial, Cadman testified that on April 11, 2017, he, Michner, and Stewart were on foot patrol in full uniform at the Altgeld Gardens Chicago Housing Authority Family Development because there was a homicide there the previous night. While walking along the sidewalk on the 13000 block of Champlain, Cadman observed defendant walking quickly from a building with his head down. Within 12 feet of defendant, Cadman said some variation of "Hello. Hello, sir. Good morning, good afternoon." Defendant seemed to look in Cadman's direction. He appeared surprised, with his eyebrows "high over his eyes" and his eyes wide, and began to shout, "Porch[a], Porch [a]" and something to the effect of "they are trying to get me." Cadman did not see anyone who seemed to be Porscha nearby.
The transcript of the report of proceedings refers to the lieutenant as "Elizabeth Mishler" at trial. We refer to her by the name used at the hearing on defendant's motion to suppress, "Elizabeth Michner."
It is uncontested that the offense occurred on April 10, 2017, and Cadman misstates the date at trial.
¶ 18 Cadman approached defendant, testifying, "I wanted to talk to him. I didn't know why he was shouting. I didn't know if he was in need of medical assistance, if he had just been a victim of a crime. It seemed [un]usual to me." He had "no idea what was happening with" defendant. Defendant backed away from Cadman, "slapping" "what seemed to be an object in his right front coat pocket" with his right hand several times and still shouting "Porch[a]." Cadman did not know what defendant was slapping at that time.
¶ 19 Cadman closed the distance with defendant and tried to get him to stop "back pedaling." Cadman wanted to speak to defendant. He wanted defendant to put his hands up, and to assure defendant he "just wanted to talk to him." Defendant did not show his hands and continued slapping his pocket. Stewart grabbed defendant from behind while Cadman "moved towards" the object from defendant's front. Through defendant's coat, Cadman felt the weight and general shape of what he believed was a small-framed handgun near defendant's waist. Cadman had been a police officer for almost 20 years and had felt a handgun on numerous prior occasions. Cadman then recovered the object, a small-framed semiautomatic handgun, from defendant's right front pocket and defendant was detained. Subsequent to defendant's detention, Cadman searched a bag defendant had on his back under his coat and recovered suspect cannabis packaged in plastic bags and plastic containers with lids. At the police station, Cadman examined the handgun and found it contained several cartridges and there was a round in its chamber.
¶ 20 On cross-examination, Cadman testified that defendant could have been walking in the direction of parked vehicles. Cadman greeted defendant because it seemed like defendant was going to bump into him, and the officers were there to say hello to citizens and make themselves available. After Cadman said hello, defendant appeared to look at him and started to back away from the officers. They started walking toward him to determine why he was "screaming." Cadman could not recall how many times defendant slapped at his pocket, but it was "[a]t least" twice. He acknowledged that at the hearing on defendant's motion to suppress, he had testified that defendant slapped his coat no more than twice. He did not notice defendant's backpack until after defendant was handcuffed.
¶ 21 Stewart testified that he had been with the Chicago Police Department for just under 20 years. Around 12:15 p.m. on April 10, 2017, he, Cadman, and Michner were on foot patrol on the 13000 block of Champlain Avenue, as there was a homicide in the area the night before. They encountered defendant, whom Stewart identified in court, walking toward them on the sidewalk with his head down. The officers greeted defendant, as they had everyone that day.
¶ 22 Defendant lifted his head, looked at the officers, appeared surprised, and started screaming a girl's name and "they trying to get me." He then walked backwards "checking himself," which Stewart explained meant he put his hands on his person. Stewart testified, "I don't know if he had something on him at that point or just you know touching his body." Defendant's actions concerned Stewart because he believed that they indicated defendant "possibly had a weapon." Stewart and Cadman approached defendant to talk to him. Stewart circled behind defendant "to just basically try and relax him a little bit," and Cadman performed a protective pat down, finding a weapon in defendant's right coat pocket. Defendant was then placed in handcuffs. Cadman conducted an inventory search of a backpack underneath defendant's coat and found suspect cannabis.
¶ 23 On cross-examination, Stewart testified the officers were not looking for someone or something that day. They had said hello to numerous people throughout the morning prior to encountering defendant but did not stop anyone before they stopped defendant.
¶ 24 The State recalled Cadman, who testified that when he processed defendant at the police station, defendant said he lived on the 15200 block of South Dearborn Street in South Holland, Illinois, which was not the address where defendant was arrested.
¶ 25 The State entered several exhibits, including certified abstracts from the Illinois State Police showing that defendant did not have a CCL or a FOID card at the time of his arrest, and a certified copy of defendant's prior felony conviction for possession of a controlled substance. The State also entered a stipulation that, if called, a forensic scientist would testify that the substance recovered from defendant tested positive for cannabis.
¶ 26 The trial court found defendant guilty on all counts, noting that it found both Cadman and Stewart to be credible, and that the cannabis was recovered after a search incident to arrest or detention following the recovery of a handgun from defendant's pocket.
¶ 27 Defendant filed a posttrial motion, alleging, inter alia, that the trial court erred in denying his motion to suppress. The motion asserted that even if defendant walked away from the officers, called to Vaughn that "they" were trying to stop him, and touched or slapped the outside of his coat, that was not enough for the officers to perform a Terry stop and a pat-down search. Citing People v. Aguilar, 2013 IL 112116, and People v. Thomas, 2016 IL App (1st) 141040, defendant further alleged that even if the circumstances were sufficient for a Terry stop and a pat-down search, the resulting seizure of the handgun and his arrest were not supported by probable cause because the officers did not know at the time that he did not have proper credentials to possess a firearm.
¶ 28 The trial court denied defendant's motion, finding the State met its burden of proof. It recounted that, when the police officers greeted defendant, he started yelling to someone "they're trying to get me," which the officers found unusual. It also noted that, when the officers saw defendant repeatedly slap an object in his coat pocket, they performed a protective pat down and recovered a firearm and cannabis.
¶ 29 The trial court subsequently merged counts II through VIII into AUUW count I and sentenced defendant to three years' imprisonment.
The mittimus included in the record on appeal notes that counts II through VIII merge into count I, but lists counts I through V as each having a separate three-year sentence.
¶ 30 On appeal, defendant argues we must reverse his conviction because the trial court improperly denied his motion to suppress where the police officers lacked reasonable suspicion to conduct an investigative stop, to perform a protective pat-down even after finding he possessed an item believed to be a handgun, and to confiscate the handgun, and probable cause to arrest him after finding he possessed a handgun.
¶ 31 At a hearing on a motion to suppress evidence, a defendant bears the burden of proof. People v. Gipson, 203 Ill.2d 298, 306 (2003). First, the defendant must make a prima facie case that the challenged evidence was illegally obtained. Id. at 306-07. If the defendant does so, the burden shifts to the State to counter defendant's prima facie case with its own evidence. Id. at 307. The ultimate burden of proof, however, remains with the defendant. Id.
¶ 32 A trial court's ruling on a motion to suppress evidence is subject to a bifurcated two-prong standard of review. In re O.S., 2018 IL App (1st) 171765, ¶ 20. Under this standard of review, we accord great deference to the trial court's factual findings and will reverse them only if they are against the manifest weight of the evidence. Id. "A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence." Bazydlo v. Volant, 164 Ill.2d 207, 215 (1995). We then review de novo the trial court's ultimate legal ruling. In re O.S., 2018 IL App (1st) 171765, ¶ 20. As such, we may engage in our own assessment of the facts presented at the hearing on the motion and at trial, and may draw our own conclusions regarding what relief should be granted. Id.
¶ 33 Both the fourth amendment to the United States Constitution and article I, section 6 of the Illinois Constitution of 1970 protect citizens from unreasonable searches and seizures by the government. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6; People v. Lopez, 229 Ill.2d 322, 345 (2008). Not every encounter between the police and a citizen results in a seizure. People v. Luedemann, 222 Ill.2d 530, 544 (2006). A consensual encounter between the police and a private citizen involves neither detention nor coercion and is therefore not a seizure under the fourth amendment. People v. Gherna, 203 Ill.2d 165, 177 (2003). Further, not all police seizures of a citizen are unreasonable, as police may reasonably seize a citizen pursuant to: (1) a Terry stop, which is a brief investigatory detention supported by a reasonable, articulable suspicion of criminal activity; and (2) an arrest supported by probable cause. Id. at 176-77.
¶ 34 We must first determine if and when defendant was seized, as the fourth amendment is not implicated until a defendant is seized. People v. McMichaels, 2019 IL App (1st) 163053, ¶ 16. We agree with the parties that defendant was seized when Officers Cadman and Stewart held him by his arms and Cadman immediately performed a pat down of defendant's pocket, resulting in a Terry stop. See Luedemann, 222 Ill.2d at 550 (a person is "seized" for fourth amendment purposes when a police officer, by physical force or show of authority, in some way restrains the liberty of that citizen); In re Mario T, 376 Ill.App.3d 468, 471 (2007) (once a police officer "began the protective pat-down, it changed the fundamental nature of the encounter from a consensual one into a full-blown Terry stop").
¶ 35 The next question is whether the seizure was proper under Terry. Pursuant to Terry, when a police officer has "a reasonable, articulable suspicion of criminal activity, and such suspicion amounts to more than a mere hunch," he may conduct a brief, investigatory stop of a citizen. (Internal quotation marks omitted.) Gherna, 203 Ill.2d at 177. Then, if the officer "is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others, the officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon." People v. Sorenson, 196 Ill.2d 425, 432 (2001). An officer's valid reason to conduct a Terry stop does not automatically justify a search for weapons. Id. at 433. Therefore, whether an investigative stop is valid and whether a subsequent search for weapons is valid are two separate questions. Id.
¶ 36 Under Terry, a police officer may briefly stop a person for temporary questioning if he reasonably believes that the person either has committed or is about to commit a crime. People v. Flowers, 179 Ill.2d 257, 262 (1997); Gherna, 203 Ill.2d at 177. A police officer conducting a Terry stop must be able to point to specific, articulable facts that, when considered in connection with the rational inferences from such facts, make the intrusion reasonable. McMichaels, 2019 IL App (1st) 163053, ¶ 22. "The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior, and due weight must be given to the reasonable inferences the officer is entitled to draw from the facts in light of his experience." (Internal quotation marks omitted.) Id.
¶ 37 In making this determination, courts consider the totality of the circumstances known to the officer and view those facts "from the perspective of a reasonable officer at the time of the stop." (Internal quotation marks omitted.) Id. We consider the facts presented at the hearing on the motion and at trial. In re O.S., 2018 IL App (1st) 171765, ¶ 20. Where, as here, multiple officers worked in concert to detain a defendant, reasonable suspicion can be established from all the information collectively received by the officers, even if the information was not known to the officer who made the detention. People v. Maxey, 2011 IL App (1st) 100011, ¶ 54.
¶ 38 Considering the totality of the circumstances here, we find the Terry stop was valid. Cadman and Stewart testified they were on foot patrol following a nearby unresolved homicide that occurred the night before when they encountered defendant walking with his head down. Cadman greeted defendant, as the officers had been doing with other citizens throughout the day. Defendant looked in the officers' direction, appeared surprised, and started screaming something to the effect of, "Porcha, Porcha, they're trying to stop me, they're trying to get me." Cadman could not see anyone to whom defendant was screaming.
¶ 39 Cadman testified he wanted to talk to defendant because he found this response strange and unusual, and he did not know why defendant was shouting, if he needed medical assistance, or if he was the victim of a crime. However, when the officers attempted to approach defendant, defendant backed away, repeatedly slapping at an object in his coat pocket. Cadman testified defendant's behavior concerned him and he feared for his safety because, in addition to defendant being in close proximity and yelling, he did not know what defendant had in his pocket. Cadman was also concerned for his safety because the officers were in an area that had experienced not only a homicide involving a firearm the night before, but multiple police-involved shootings, including one involving Cadman. See People v. Hood, 2019 IL App (1st) 162194, ¶ 66 (police officers' presence in an area in which their experience informs them about a high level of criminal activity is a relevant consideration in determining the reasonableness of the officers' actions).
¶ 40 Stewart added that he did not know whether defendant "had something on him at that point or just you know touching his body," but defendant's actions concerned him because he believed that they indicated defendant "possibly had a weapon." When Cadman asked defendant to show his hands, defendant did not and continued to slap his pocket. At that point, Cadman and Stewart grabbed hold of defendant and Cadman immediately performed a protective pat down of the area defendant was slapping. We find the officers' testimony articulated ample specific facts justifying an investigatory Terry stop. Given the officers' testimonies, we conclude the State established the police officers had a reasonable, articulable suspicion that defendant had been or might be involved in criminal activity.
¶ 41 Defendant argues the stop was illegal where Cadman admitted he did not see defendant commit a crime. However, reasonable suspicion can arise even when, as here, the police officers did not witness the defendant violate the law. Maxey, 2011 IL App (1st) 100011, ¶ 46. In a similar vein, although there may have been an innocent explanation for defendant's concerning behavior, "innocent behavior frequently provides the necessary reasonable suspicion for a Terry stop," as an investigative stop is justified to resolve any ambiguity in the behavior. People v. Timmsen, 2016 IL 118181, ¶ 44 (Thomas J., specially concurring). We find that under the totality of the circumstances known to the officers here, they were justified in conducting a Terry stop to investigate whether defendant might be armed in violation of the law.
¶ 42 Likewise, the police officers' subsequent protective pat-down of defendant's pocket was proper. An officer may conduct a limited search, i.e., a frisk, of a person if he has reasonable suspicion that the person is "armed and dangerous." Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). The purpose of a frisk is "to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146 (1972). Where the frisk goes beyond what is necessary to determine if a person is armed, it becomes invalid under Terry and its fruits must be suppressed. Sorenson, 196 Ill.2d at 432.
¶ 43 Here, both Cadman and Stewart had almost 20 years of police experience, and both believed defendant had something on him that caused them to fear for their safety given the area in which they encountered him and his erratic behavior. Stewart specifically stated his belief defendant had a weapon. Given the totality of the circumstances known to the officers, we find their suspicion that defendant was armed and dangerous reasonable, justifying a quick protective pat-down to make sure defendant did not have a weapon that could be used against them. See Flowers, 179 Ill.2d at 263 ("The sole justification for the search allowed by the Terry exception is the protection of the police officer and others in the vicinity, not to gather evidence.").
¶ 44 Additionally, the frisk of defendant did not go beyond that required to determine if defendant was armed. Cadman testified that he touched defendant over his coat directly in the area he had seen defendant slapping, and that he did not perform a pat-down starting at the shoulders. Thus, Cadman's search was limited to what was necessary to determine if defendant was armed and dangerous, and as such was valid under Terry. Sorenson, 196 Ill.2d at 432.
¶ 45 Defendant argues that the stop, frisk, subsequent confiscation of the firearm, and arrest were not justified because possession of a firearm is not per se illegal following Aguilar, 2013 IL 112116, ¶¶ 19-22 (striking down a comprehensive ban on carrying "ready-to-use guns outside the home") and People v. Thomas, 2019 IL App (1st) 170474, ¶ 40 (post-Aguilar, police cannot simply assume a person in possession of a firearm outside the home is involved in criminal activity). He argues that, after Cadman felt an item believed to be a handgun in defendant's pocket, the officers still lacked reasonable suspicion to conduct a protective pat-down and to confiscate the recovered handgun. He asserts the officers should have handcuffed him and conducted questioning or investigation to determine whether he legally possessed the handgun before removing it from his pocket and arresting him.
¶ 46 However, Aguilar held that the right to bear arms outside the home was subject to meaningful regulation. Aguilar, 2013 IL 112116, ¶ 21. In Illinois, such regulation includes laws such as the statute prohibiting a felon from possessing a firearm (720 ILCS 5/24-1.1 (a) (West 2016)) and requiring that, in order to carry a concealed firearm on the street, the carrier must have both a valid CCL and FOID card (430 ILCS 65/2, 66/10(c)(1), 66/25(2) (West 2016)). Although Cadman and Stewart did not know whether defendant was a felon or possessed a valid CCL or FOID card when they felt the handgun in his pocket, removed it, and arrested him, we find they had sufficient justification to believe defendant was not in lawful possession of the handgun.
¶ 47 The police officers encountered defendant in an area where multiple shootings had occurred, including one the night before. He appeared unpleasantly surprised to see the officers and backed away from them while screaming to an unseen person, slapping at the object in his coat pocket, and refusing to show his hands. We find this evidence sufficient to provide the officers with a reasonable suspicion that he was not in lawful possession of the firearm warranting the Terry stop and frisk and seizure of the firearm. See Hood, 2019 IL App (1st) 162194, ¶ 71 ("Police officers are not required to completely eliminate any legal explanation for a defendant's suspected possession of a firearm and establish the defendant was committing a weapons offense prior to investigating further during a Terry stop" (citing People v. Colyar, 2013 IL 111835, ¶ 49)); People v. Spain, 2019 IL App (1st) 163184, ¶ 23 (If a police officer finds a weapon during a valid Terry pat down search, "the officer may confiscate it 'until the completion of the questioning,' at which time he or she must 'either return [it], if lawfully possessed, or arrest the person so questioned.' (quoting 725 ILCS 5/108-1.01 (West 2014)).
¶ 48 We also find that in light of the totality of the circumstances, the officers had probable cause to arrest defendant following recovery of the firearm on his person. Probable cause, or something more than a mere suspicion of criminal activity, is needed for an officer to make a warrantless arrest. Spain, 2019 IL App (1st) 163184, ¶ 24. Whether probable cause exists depends upon the totality of the circumstances at the time of the arrest. Id. (citing People v. Hopkins, 235 Ill.2d 453, 472 (2009))." '[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.'" Id. (quoting Brinegar v. United States, 338 U.S. 160, 232 (1949)). Regardless, the facts known to the arresting officer must be "sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime." (Internal quotation marks omitted.) Id. Though a higher standard than reasonable suspicion, probable cause requires the probability of criminal activity, not proof beyond a reasonable doubt. Id.; People v. Lee, 214 Ill.2d 476, 485 (2005).
¶ 49 Here, while the officers failed to inquire into whether defendant legally possessed the firearm they recovered during their protective pat-down, we have found that" [a] reasonable person who was not committing a crime (i.e., who had the valid licenses) would be expected to tell the officers he was licensed to have and carry a gun." McMichaels, 2019 IL App (1st) 163053, ¶ 38. The officers testified that at no point during their exchange with defendant did defendant offer that he had a CCL or FOID card despite his opportunity to do so, instead continuing to yell and evade questions. Thus, despite the possibility of defendant's legal possession of the firearm, the circumstances of the incident were sufficient to establish probable cause for his arrest.
¶ 50 The trial court did not err in denying defendant's motion to suppress the evidence.
¶ 51 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 52 Affirmed.