Opinion
No. 1-14-0140
06-05-2014
IN RE ARMOND D., a Minor, Respondent-Appellant.
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).
Appeal from the
Circuit Court of
Cook County
No. 13 JD 4455
Honorable
Andrew Berman,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment.
ORDER
¶ 1 Held: We reverse the circuit court's order denying respondent's motion to suppress evidence because the police officer lacked reasonable suspicion to conduct investigatory stop of juvenile. We also reverse the adjudications of delinquency. ¶ 2 Respondent Armond D. was charged with two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of a firearm (UPF). After a stipulated bench trial, the court found respondent guilty of all counts and sentenced him to eighteen months probation and 30 hours of community service. On appeal, respondent argues that the trial court erred in denying his motion to suppress evidence because the officer did not have a reasonable articulable suspicion to justify stopping respondent. He separately argues that, even if the stop was valid, the arresting officer's subsequent pat-down of respondent that led to the discovery of the gun was an illegal frisk. We conclude the stop was not legally justified and reverse the denial of respondent's motion to suppress. We also reverse the adjudications of delinquency because, without the unlawfully-seized gun, the State cannot meet its burden of proving respondent's guilt.
¶ 3 BACKGROUND
¶ 4 On October 31, 2013, respondent, who was thirteen years old, was arrested after police stopped him, patted him down, and found a gun. Prior to trial, respondent filed a motion to suppress evidence, arguing that the police lacked reasonable suspicion for stopping him and, even assuming the stop was valid, the search was unreasonable because there was no basis for it. ¶ 5 On December 2, 2013, the court held a hearing on the motion to suppress. Respondent testified that, at the time of his arrest, he was walking alone on the sidewalk near 117th and Union in Chicago when he saw two uniformed police officers in a marked squad car. A group of five people were walking on the other side of the street. Respondent stated he was not with them. The officers stopped the car and got out. One officer told respondent to come over to him, but respondent did not and "just sat there." The officer came over and, without asking any questions, started patting down respondent. Respondent had a "real tight" belt and a gun on his hips underneath his jeans. The gun was a Glock. The officer discovered the gun during the pat down and placed respondent under arrest. ¶ 6 The State's witness was Officer Jamie Rivas. He testified that his beat assignment was "Conflict Zone 15 in Roseland" which included the address of 11701 South Union Avenue in Chicago. He described a "conflict zone" as a specific area where "the City deemed it necessary to put more officers *** because of the gang violence that has been occurring and the shootings and the narcotics activity in the area." In the three or four months that Officer Rivas had been assigned to the specific area, he had responded to gang and drug activity. There had been an increase in officers directed to that activity: three additional beat cars and three additional foot posts. ¶ 7 On October 31, 2013, Officer Rivas and his partner, Officer Holden, were in full uniform in a marked vehicle headed eastbound on 117th Street, with Officer Holden driving. He observed a large group of individuals walking east on 117th Street. Over objection, Officer Rivas testified that he saw respondent "with that group." ¶ 8 Officer Rivas testified: "[W]hat drew my attention to [respondent] was that his arm seemed almost paralyzed." He explained that respondent's left arm "appeared to be catering to the left-hand side of his waist." Officer Rivas further explained: "[I]t had no motion as he was walking, but the right --- but the right part of his body was free of motion [sic] as a normal individual would walk." Respondent "was dragging his left leg also *** it seemed like it was an unnatural movement for someone walking." Officer Rivas also stated that respondent was on the sidewalk with other individuals who were "in close proximity to him walking in the same direction making constant eye contact back and forth." ¶ 9 Officer Rivas testified that he "gave knowledge to Officer Holden that that looked suspicious, so [the officers] circled the block." The officers next waited in a church parking lot, expecting respondent to cross by - had he kept his normal course of direction. When the group did not pass by, the officers "doubled back and continued back westbound to see where the individuals were heading." As the police vehicle was heading north on Union Street, Officer Rivas saw the group and respondent on the corner of 117th and Union. As the vehicle initially turned the corner, all were walking in the same direction, eastbound. Respondent was between five to ten feet from the group. After the police vehicle turned the corner, the group turned around and began walking westbound. Officer Rivas saw respondent "breaking away from the group." Respondent turned and "immediately started walking southbound on Union." Officer Rivas could see that respondent was "still cradling his side with his arm and dragging his left leg." His left arm was stationary, but his right side was moving freely. ¶ 10 Officer Rivas left the vehicle, told respondent "to stop right there and to come here." Respondent did not do so. Officer Rivas testified that respondent "began to look very panicked." Respondent began looking towards an abandoned building and other yards associated near an alleyway and then looked at Officer Rivas. While respondent continued "his movements of looking towards other areas," Officer Rivas was "closing distance trying to gain his attention to tell him not to run." He told respondent - about four or five times - not to run. ¶ 11 Officer Rivas twice asked respondent what he was doing but got no response. He then asked respondent if he had any guns or drugs, at which point "[t]he arm that was still paralyzed - he looked down at his left side of his waistband." Officer Rivas "immediately did a protective pat-down." He began with respondent's chest and noticed respondent's "heart was beating entirely too fast, almost like if somebody was sprinting." With his right hand, Officer Rivas swept the left side of respondent's body and felt a hard object on the left side of his waistband. He asked respondent if it was gun. Respondent said: "Yes." Officer Rivas recovered the weapon which measured eight to nine inches long from the front of the barrel to the handle and weighed about seven or eight pounds. ¶ 12 On cross-examination, Officer Rivas agreed that when respondent was ordered to come over to him, respondent was not free to walk away from him. Also, defense counsel asked Officer Rivas: "As you were asking the question do you have any guns or drugs on you, you began the pat-down; is that correct?" Officer Rivas said, "Yes." On re-direct examination, Officer Rivas testified that when he initially approached respondent and asked him if he had drugs or weapons on him, respondent did not have any response and "[h]e just looked at his - the left side of his waistband." At that point, after respondent looked at his waistband, Officer Rivas stated: "That's when I felt his chest, and then I began to screen his body *** to conduct a protective pat-down." ¶ 13 Also on cross-examination, Officer Rivas testified that he prepared an arrest report and a case incident report. He conceded that he did not include in the reports that respondent's heart was beating fast or that he had asked respondent if he had any guns or drugs on him. He also did not include in his reports that respondent had started looking around towards an abandoned building or sideways. Nor did he include in his reports that he had told respondent, four to five times, not to run. On re-direct examination, Officer Rivas testified that these reports are just summaries and are not "word-for-word reports of what happened." He also testified that he did not write the original incident report. Officer Holden wrote it and Officer Rivas assisted him.
¶ 14 ANALYSIS
¶ 15 When reviewing a trial court's ruling on a motion to suppress evidence, this court applies the two-part test adopted by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 (1996). See, e.g., People v. Hunt, 2012 IL 111089, ¶ 22. The trial court's factual findings and credibility determinations are entitled to great deference and will be reversed only if they are against the manifest weight of the evidence. People v. Slater, 228 Ill. 2d 137, 149 (2008). However, we review de novo the trial court's ultimate legal ruling as to whether suppression was warranted. People v. Cosby, 231 Ill. 2d 262, 271 (2008). ¶ 16 Both the United States and Illinois Constitutions protect citizens against unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const.1970, art. I, sec. 6. The fourth amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. The Illinois Supreme court "has construed the search and seizure language found in section 6 of the Illinois Constitution in a manner that is consistent with the Supreme Court's fourth amendment jurisprudence." (Internal quotation marks omitted.) See People v. Anthony, 198 Ill. 2d 194, 201(2001) (quoting Fink v. Ryan, 174 Ill. 2d 302, 314 (1996). Reasonableness under the fourth amendment generally requires a warrant supported by probable cause. People v. Sorenson, 196 Ill. 2d 425, 432 (2001). However, in Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Supreme Court recognized a limited exception to this requirement which allows police officers, under appropriate circumstances, to briefly stop a person for temporary questioning when the officer reasonably believed that the person had committed or was about to commit a crime. ¶ 17 Respondent first argues that the trial court erred in denying his motion to suppress the gun because there were no specifically articulable facts that could lead Officer Rivas to believe that respondent had committed, or was about to commit a crime, as required for a valid stop pursuant to Terry v. Ohio, 392 U.S. 1, 21 (1968) (Terry stop). We agree. ¶ 18 The principles applicable to this issue are well settled. "Under Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime." (Emphasis added.) People v. Close, 238 Ill. 2d 497, 505 (2010). To justify a Terry stop, a police officer must be able to point to specific and articulable facts which, combined with the rational inferences from those facts, reasonably warrant the intrusion. People v. Thomas, 198 Ill. 2d 103, 109 (2001). While these facts need not rise to the level of probable cause, a mere hunch is not sufficient. Id. at 110. Whether an investigatory stop is reasonable is determined by an objective standard (People v. Nitz, 371 Ill. App. 3d 747, 751 (2007)), and the facts are viewed from the perspective of a reasonable officer at the time of the stop (Thomas, 198 Ill. 2d at 110). A reviewing court applies the same totality of the circumstances approach for determining reasonable suspicion justifying a Terry stop as it does for determining the existence of probable cause to arrest; however, the court makes an allowance for the lesser showing required to meet the reasonable suspicion standard. People v. Jackson, 348 Ill. App. 3d 719, 729 (2004) (citing People v. Ertl, 292 Ill. App. 3d 863, 869 (1997)); see also United States v. Sokolow, 490 U.S. 1, 8 (1989) (in evaluating the validity of an investigative stop, the court must consider the " 'totality of the circumstances—the whole picture.' [Citation.]"); People v. Harris, 2011 IL App (1st) 103382, ¶ 11 (A reviewing court must "be mindful that the decision to make an investigatory stop is a practical one based on the totality of the circumstances." (Internal quotation marks omitted.) (quoting In re S.V., 326 Ill. App. 3d 678, 683 (2001)). "The facts should not be viewed with analytical hindsight, but instead should be considered from the perspective of a reasonable officer at the time that the situation confronted him or her." People v. Thomas, 198 Ill. 2d 103, 110 (2001) (citing People v. Long, 99 Ill. 2d 219, 228-29 (1983)). ¶ 19 In the instant case, the circuit court found the officer's testimony to be credible. The circuit court further noted that there was not much difference between respondent's and the officer's testimony. We conclude that, based on the totality of the circumstances and when viewed from the perspective of a reasonable officer at the time, the Terry stop here was not justified. ¶ 20 The stop occurred in a high crime area, Conflict Zone 15, an area known for illegal drugs and gun violence. Although that alone is insufficient to justify a stop, it is a "relevant contextual consideration" in a Terry analysis. See, e.g., People v. Harris, 2011 IL App (1st) 103382, ¶ 12. Here, the police were patrolling the high crime area but were not responding to a call of a recent crime in the area. Officer Rivas testified that his attention was drawn to respondent because his left arm seemed almost paralyzed and appeared to be "catering to the left-hand side of his waist," but the right side of his body was moving normally. Officer Rivas believed this was "an unnatural movement for someone walking." Respondent was "still cradling his side with his arm and dragging his left leg" when he started walking away from the group. ¶ 21 The case of People v. F.J., 315 Ill. App. 3d 1053 (2000), cited by respondent, is instructive. There, we held that the police officer lacked reasonable suspicion to conduct an investigatory stop of a juvenile. The factors that the State offered as the basis for the stop were that "it was night, there had been a 'gang disturbance' nearby, it was a high crime area, and [the respondent] put something in his pocket." Id. at 1057. The officer testified that "he had no idea what the object was." Id. at 1058. The officer "did not testify that it looked like a handgun or contraband or anything that would naturally arouse suspicion." Id. We concluded that the State failed to provide the "specific and articulable facts from which the officer reasonably inferred that [the respondent] was involved in criminal activity." Id. Here, Officer Rivas testified only that respondent's left arm seemed almost paralyzed and he appeared to be "catering to the left-hand side of his waist." He did not testify that he saw respondent with any object. Nor did he testify that he believed defendant had any object. Officer Rivas also did not testify that he believed respondent was trying to conceal something. Instead, he testified that he thought it "looked suspicious." However, reasonable suspicion is not created because an individual "looks suspicious." People v. Croft, 346 Ill App. 3d 669 (2004). ¶ 22 The State has also contended that the totality of circumstances includes respondent's evasive tactics. Citing Illinois v. Wardlow, 528 U.S. 119, 125 (2000), the State argues that "respondent's act of evasion (namely, abruptly stopping his direction of travel, and abandoning the group he was in when he saw the officers) was not a mere refusal to cooperate; it was instead the very opposite of going about his business." In Wardlow, the respondent had fled upon seeing police patrolling an area known for heavy narcotics trafficking. Id. at 121. The Wardlow Court noted that it had "recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Id. at 124. The court additionally noted that: "[h]eadlong flight — wherever it occurs — is the consummate act of evasion." Id. Although evasive behavior can include actions short of fleeing, we agree with respondent that the testimony was not sufficient to show that respondent took evasive action after seeing the police. Respondent did not flee. Officer Rivas testified that he saw respondent and the group change directions. Although the State contends that "[u]pon seeing the police, [respondent] abandoned his direction of travel," neither the testimony of Officer Rivas nor that of respondent established that respondent saw the police and then changed directions. Officer Rivas also testified that, while parked in the church parking, he expected respondent to cross by — had respondent kept his normal course of direction. However, Officer Rivas did not see when the individuals changed their direction. Also, Officer Rivas testified that he next saw respondent near an intersection where respondent turned in a different direction from the group. However, respondent testified that he was walking near the group, but was not with them. Officer Rivas's testimony did not establish that respondent was "traveling with" the group. It was possible that respondent intended, all along, to turn in a different direction than the group and go about his business. As we have noted, "[i]n Wardlow, the Supreme Court explained that its holding therein was consistent with an individual's right to go about his business when confronted by a police officer lacking reasonable suspicion or probable cause to detain him, and distinguished flight from merely going about one's business." People v. Kipfer, 356 Ill. App. 3d 132, 140 (2005) ("we cannot conclude that [the police officer's] scant suspicion or hunch about defendant ripened into a reasonable suspicion that defendant was about to burglarize a vehicle, rob or assault someone, simply because defendant continued to walk away while [the officer] sounded his horn and asked defendant to stop"). ¶ 23 The totality of the circumstances here — the high crime area, respondent's unnatural movement, and his mere walking in a different direction and away from the group — was insufficient to create reasonable suspicion in a police officer that respondent had committed, or was about to commit, a crime. ¶ 24 Although the State points to additional actions on the part of respondent, for example, his panicked look and "his movements of looking towards other areas," these occurred after the stop. "Under Terry, the reasonableness of police action taken during an investigative detention involves a dual inquiry: (1) whether the officer's action was justified at its inception; and (2) whether the officer's action was reasonably related in scope to the circumstances which justified the interference in the first place." People v. Baldwin, 388 Ill. App. 3d 1028, 1031-32 (2009) (quoting Terry, 392 U.S. 1). "Whether an investigatory stop is valid is a separate question from whether a search for weapons is valid." People v. Flowers, 179 Ill. 2d 257, 263, (1997) (citing People v. Galvin, 127 Ill. 2d 153, 163 (1989)). Any additional actions taken by respondent after the stop are irrelevant to the analysis of whether the initial stop was valid. Since the initial stop was invalid, the subsequent pat-down was not justified. "[A] frisk presupposes the right to make a stop." People v. F.J., 315 Ill. App. 3d at 1059 (citing Terry, 392 U.S. at 32 (Harlan, J., concurring)) ("if a policeman has a right *** to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence"). ¶ 25 Having concluded that the gun should have been suppressed, we also reverse respondent's adjudications. Generally, when an issue "concerns the sufficiency of the evidence, we are required to reverse outright, whereas the erroneous admission of evidence is a procedural error which allows us to remand for a new trial. [Citations.]." (Internal quotation marks omitted.) People v. Cowans, 336 Ill. App. 3d 173, 181 (2002). However, we have reversed a conviction outright where the State did not interpose a request for remand in the event of a reversal, and it was apparent that the State would be unable to prove its charges without the suppressed evidence. See, e.g., People v. Christmas, 396 Ill. App. 3d 951, 960 (2009) ("Because the State will be unable to prove its case without the evidence of the narcotics, we reverse outright."); People v. Blair, 321 Ill. App. 3d 373, 381 (2001) ("As the prosecution will be unable to proceed against defendant, defendant's cause will not be remanded."); see also In the Interest of F.R., 209 Ill. App. 3d 274, 283 (1991) (reversing outright the finding of delinquency for same reasons). Here, there is no dispute that, without the gun, the State would not have been able to prove that respondent committed AUUW or UPF, and the State has not requested remand in the event that we reverse the denial of respondent's motion. Therefore, we reverse outright the adjudications. ¶ 26 In view of our decision, respondent's additional argument that his multiple adjudications violate the one-act, one crime rule and that the record be modified to reflect an adjudication and sentence on a single count of aggravated unlawful use of a weapon, while correct and not disputed by the State, are now moot.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we reverse the circuit court's order denying respondent's motion to suppress evidence. We also reverse the adjudications of delinquency. ¶ 29 Reversed.