People v. Maxey , 2011 IL App (1st) 100011 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Maxey, 2011 IL App (1st) 100011Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption LAMARR MAXEY, Defendant-Appellee.
District & No. First District, Sixth Division
Docket No. 1–10–0011
Filed May 27, 2011
Held The trial court’s order granting defendant’s motion to quash his arrest and
(Note: This syllabus suppress evidence was reversed, since the arresting officers were justified
constitutes no part of in making Terry stop based on information 911 emergency services
the opinion of the court received from several eyewitnesses at robbery, including suspect’s
but has been prepared descriptions of suspect and vehicle he was driving, all of callers provided
by the Reporter of substantially similar descriptions of suspect, that information matched
Decisions for the one officer’s initial observation of defendant two to three minutes after
convenience of the receiving the information by radio, and restraint of defendant following
reader.)
initial stop did not transform the stop into “illegal seizure” but, rather,
involved short trip back to the crime scene, where he was identified by
four witnesses as the offender and the officers’ reasonable suspicion
ripened into probable cause for defendant’s arrest.
Decision Under Appeal from the Circuit Court of Cook County, No. 08–CR–20482; the
Review Hon. Marcus R. Salone, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
Appeal P. Needham, and Sara A. Phillips, Assistant State’s Attorneys, of
counsel), for the People.
Abishi C. Cunningham, Jr., Public Defender, of Chicago (Michael
Davidson, Assistant Public Defender, of counsel), for appellee.
Panel JUSTICE R. GORDON delivered the judgment of the court, with
opinion.
Justices Cahill and McBride concurred in the judgment and opinion.
OPINION
¶1 Defendant Lamarr Maxey was charged by indictment with three counts of attempted
aggravated robbery (720 ILCS 5/8–4(a), 18–5 (West 2008)). Defendant filed a pro se motion
to quash his arrest and suppress evidence. Following a hearing, the trial court granted
defendant’s motion. On appeal, the State claims that the trial court erred in finding that the
arresting police officers did not have probable cause to arrest defendant or, alternatively, the
arresting police officers had reasonable suspicion to detain defendant for further investigation
which ripened into probable cause to arrest. For the foregoing reasons, we reverse and
remand.
¶2 BACKGROUND
¶3 Prior to trial, defendant filed a pro se motion to quash arrest and suppress evidence
alleging that his initial detention was illegal because it was not based on reasonable suspicion
or probable cause to arrest and, thus, evidence recovered by police subsequent to arrest
should be suppressed.
¶4 On May 13, 2009, the trial court held a hearing on defendant’s motion to quash arrest
and suppress evidence. At the hearing, defendant represented himself pro se and called two
witnesses: (1) Aselo Hernandez, one of the victims; and (2) Chicago police officer
Christopher Nelligan, an investigating detective.
¶5 Aselo testified that at approximately 12 p.m. on October 8, 2008, he was working
with his son, Hector Hernandez, at Hector’s Upholstery Store, which is located on South
Western Avenue in Chicago, near the intersection of 105th Street. He observed defendant
enter the store with a handgun and approach them. Defendant then said to them, “it is a
robbery FF’s.”
¶6 Aselo testified that he panicked and ran toward a door in the rear of the store. He
testified that defendant ran after him and knocked him to the floor. He testified that while he
was on the floor, defendant pointed the handgun at the back of his head. Aselo testified that
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Hector approached defendant and defendant then pointed the handgun at Hector.1
¶7 Aselo testified that Hector “was able to wrestle the [handgun]” from defendant’s hand
and knock the handgun to the floor. He testified that Hector yelled that the handgun was a
fake and defendant ran out of the store through the front door. He testified that Hector then
ran after defendant. Aselo testified that he stood up, exited the store through the front door,
and observed a “witness” standing in front of the store. He further testified that the witness
told him that he had observed Hector chasing defendant and that he called 911 emergency
services.
¶8 Aselo testified that he did not provide the police with a description of defendant
because he was “too panicked *** to describe everything precisely.” Rather, he testified that
Hector described the defendant to an unnamed police officer who arrived at the store.
¶9 On cross-examination, Aselo testified that a police vehicle arrived “a few minutes
later” after the attempted robbery and he observed defendant exit the police vehicle. He
testified that he and Hector both positively identified defendant as the person who had
attempted to rob them.
¶ 10 Officer Nelligan testified that on October 9, 2008, he was assigned as the
investigating detective for the attempted robbery at the upholstery store. He testified that he
interviewed “several witnesses” at the scene, including Hector. Officer Nelligan testified that
Hector informed him that the offender drove away from the crime scene in a “red or maroon
Oldsmobile” with temporary license plates.
¶ 11 During Officer Nelligan’s testimony, the trial court advised defendant that he needed
the assistance of a lawyer to properly present his motion and to properly examine witnesses.
Defendant agreed and requested that the trial court appoint the public defender’s office to
assign an assistant public defender to represent him. The trial court then appointed the Cook
County public defender’s office and continued the hearing to October 7, 2009.
¶ 12 On June 10, 2009, an assistant public defender was assigned to represent defendant.
The assistant public defender filed a new motion to quash arrest and suppress evidence,
alleging that the police subjected defendant to arrest before establishing probable cause in
violation of the fourth amendment of the United States Constitution.
¶ 13 On October 7, 2009, the hearing on defendant’s motion to quash arrest and suppress
evidence continued. At the hearing, three witnesses were called by the defense: (1) Michael
1
As noted, defendant was charged by indictment on three counts of attempted aggravated
robbery pursuant to section 18–5 of the Criminal Code of 1961: one count of attempted
aggravated robbery of Hector; one count of attempted aggravated robbery of Aselo; and one
count of attempted aggravated robbery of Aselo, who was more than 60 years of age at the time
of the offense. See 720 ILCS 5/8–4(a), 18–5 (West 2008).
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Sweeney, the arresting officer; (2) Laura Dunha, an employee of the Office of Emergency
Management Communications (OEMC); and (3) defendant.
¶ 14 Officer Sweeney, a 17-year veteran of the Chicago police department, testified that
at approximately 12 p.m. on October 9, 2008, he was driving an unmarked police vehicle
westbound on 107th Street near the intersection of 107th and Halsted Streets and was
responding to a radio transmission concerning an attempted robbery that had occurred on
South Western Avenue. He testified that he monitored another radio transmission that
described the suspect as 6 feet 2 inches tall, male, African-American, thin, wearing a light
blue baseball cap, jeans, and a dark-colored vest. He did not testify whether the suspect was
described in the radio transmissions as having facial hair or wearing glasses.
¶ 15 He further testified that the radio transmission further described the suspect as a
driver in a “red or burgundy” automobile with temporary license plates. Officer Sweeney
testified that he heard another radio transmission from Sergeant Coghlan, who observed a
vehicle matching the description of the suspect’s vehicle driving near the intersection of
103rd Street and Charles Street.2
¶ 16 Officer Sweeney testified that he drove to the intersection of 103rd Street and
Vincennes, near Charles Street, and observed, within two to three minutes, a “red or
burgundy older [automobile] with a temporary [license] plate driving eastbound” on 103rd
Street. He further observed Sergeant Coghlan and Officer Lough3 following the automobile
in separate marked police vehicles. Officer Sweeney testified that after all three motor
vehicles passed him, he turned eastbound onto 103rd Street and he and the other officers then
illuminated their emergency lights.
¶ 17 Officer Sweeney testified that he curbed the automobile by driving his police vehicle
in front of the automobile and slowing his vehicle until both motor vehicles stopped. He
testified that from the time he heard the description of the suspect’s vehicle to the time he
stopped the automobile on 103rd Street, approximately two minutes had passed. He further
testified that the distance from the location where he curbed the automobile to the upholstery
store was approximately one mile.
¶ 18 Officer Sweeney testified that he exited his vehicle and approached the driver’s side
of the automobile. He observed defendant in the driver’s seat and that he was “sweating
profusely.” He testified that he asked defendant to exit the vehicle, and the defendant
complied. The officer testified that, after defendant exited the vehicle, he observed a “a dark
sweater vest and a light, baby blue baseball cap” located on the front passenger seat. He
further testified that when defendant exited his vehicle, defendant appeared to be
2
On direct examination, Officer Sweeney testified that he heard the third transmission
from “a sergeant.” The officer was later recalled to testify and clarified that Sergeant Coghlan
was the sergeant who made the third radio transmission.
3
The record does not indicate Sergeant Coghlan’s or Officer Lough’s first name.
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approximately 6 feet 2 inches tall and “matched the description” of the suspect that he had
heard in the earlier radio transmissions.
¶ 19 Officer Sweeney testified that he explained to defendant that he stopped him because
an “attempt robbery” had occurred on South Western Avenue and that defendant matched
the description of the suspect. He testified that defendant denied any knowledge of the
attempted robbery and agreed to accompany Officer Sweeney to the crime scene “to clear this
up.” Officer Sweeney testified that at this point defendant was not free to leave. He further
testified that, before curbing defendant’s vehicle, he did not observe defendant “engage in
any illegal activity” and he did not have a warrant to arrest defendant.
¶ 20 Officer Sweeney testified that a police wagon arrived approximately five minutes
later and defendant was placed inside the rear of the wagon. He testified that the police
wagon drove defendant to the upholstery store. He further testified that, when defendant
exited the wagon, the two victims and two unnamed witnesses immediately identified
defendant as the offender. He testified that defendant was then placed under arrest. Officer
Sweeney further testified that the arrest occurred at approximately 12:15 or 12:20 p.m. and
that “the whole incident,” from the time defendant was stopped to the time he was arrested,
“took 15 minutes.”
¶ 21 On examination by the trial court, Officer Sweeney testified that, in general, he could
not determine the height of an occupant of a moving vehicle. On re-cross-examination, the
officer testified that when he observed the defendant’s vehicle driving on 103rd Street, he
could not determine if the driver was “tall,” but he could determine that the driver was male,
African-American, and “slender.”
¶ 22 Laura Dunha testified concerning “police event query” (event query) records, which
she explained are computer printouts that document communications between a 911
emergency services dispatcher and the Chicago police department. She further explained that
an event query documents the time and location of telephone calls from citizens to 911
emergency services. Duhna testified that event queries do not document radio transmissions
between the police department and the individual police officers in their vehicles.
¶ 23 She further testified that an event query is “routinely kept in the course of business
by OEMC.” She testified that she did not participate in the creation of the event queries
concerning the attempted robbery, but she was familiar with their content. Dunha was
allowed to testify concerning the event query records without objection. The event query
records are not included in the record on appeal.
¶ 24 Dunha testified that between approximately 12 p.m. and 12:30 p.m. on October 9,
2008, the OEMC recorded “several” telephone calls concerning the attempted robbery at the
upholstery store. She specifically testified concerning four event queries. She testified that
one event query indicated that a telephone call was received at 11:58 a.m. and transmitted
from the intersection of South Western Avenue and 105th Street. The telephone caller stated
that a black male with a handgun robbed another male and was running southbound in an
alley between South Western Avenue and Artesian Street. The telephone caller described the
black male as “skinny,” approximately 6 feet 2 inches tall, wearing a light blue cap and a
black vest. There was no mention as to whether the black male had facial hair.
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¶ 25 Dunha testified that a second event query indicated another telephone call was
received at 11:59 a.m. The telephone caller stated that “an Asian store manager was chasing
a male black robbery offender” and that the store manager and the robbery offender were
“running westbound” on 106th Street. The telephone caller described the suspect as male,
black, 45 years old, 6 feet 2 inches tall, wearing a blue vest and blue jeans. There was no
mention as to whether the suspect had facial hair.
¶ 26 Dunha testified that a third event query indicated a telephone call was received at
12:04 p.m. The telephone caller reported a robbery and described the suspect’s vehicle as “a
burgundy car with temporary license plate.” The telephone caller also described the suspect
as approximately 40 years old and 6 feet 3 inches tall. The caller further described the suspect
as having a dark complexion and wearing a blue vest, jeans, and a hat. The caller specifically
stated that the suspect did not have facial hair.
¶ 27 Dunha testified that a fourth event query indicated another telephone call was
received at 12:07 p.m. The telephone caller described the suspect as “male, black, skinny,
light blue cap and black jacket.”
¶ 28 On cross-examination, Dunha testified concerning an event query that occurred at
12:10 p.m. between the police department and 911 emergency services. The event query
indicated that a suspect in the attempted robbery of the upholstery was stopped by a police
officer. She also testified that another event query that occurred at 12:13 p.m. indicated that
the police were transporting the suspect to the crime scene.
¶ 29 Defendant’s testimony concerning certain facts conflicted with Officer Sweeney’s
testimony. First, he testified that when the police stopped him, he did not have clothes or a
baseball cap in his front passenger seat, but that the vest and baseball cap, which the police
recovered, were located in his trunk. Second, he testified that his automobile is “light red”
in color and not burgundy and that the hood of his automobile is painted black. Third,
defendant claimed that he was wearing glasses at the time the police stopped him. Fourth,
defendant testified that he was stopped only by one officer, Sergeant Coghlan. Fifth,
defendant testified that when the police brought him to the upholstery store, he never exited
the police wagon and was identified by the witnesses through a screen window on the rear
door of the police wagon. Sixth, defendant testified that he had a “mustache connected to a
goatee [beard]” and he introduced into evidence his arrest photograph, which depicted him
with a thin, closely shaven mustache connected to a small goatee beard.
¶ 30 After defendant’s testimony, the defense rested and the State made a motion for
directed finding. The trial court heard arguments on both sides and granted defendant’s
motion to quash arrest and suppress evidence.
¶ 31 The trial court found the description of the suspect’s vehicle as “sketchy” because no
information was provided that indicated the vehicle’s make, model, number of doors, or year
of manufacture. The trial court also found the physical and clothing descriptions were of “no
consequence” because defendant was not wearing the clothing described in the event queries
and Officer Sweeney testified that he noticed the clothing in defendant’s front passenger seat
after he stopped defendant’s vehicle.
¶ 32 The trial court took judicial notice that the area of 103rd Street and Vincennes
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Avenue, where defendant was stopped, is predominately African-American. In its ruling, the
trial court further found as follows:
“THE COURT: The burden here is a preponderance of the evidence. Did this officer
have enough evidence, enough reason to believe that the occupant in this car is involved
in this case? Although I’m struggling with this matter and I’m fully aware that the burden
is a preponderance, really dictates my ruling. I don’t know. I don’t know. Let me put it
another way. I can understand both arguments. I think your arguments are equally
balanced. And that’s not the burden. The scale has to be tilted.
THE STATE: Judge, it is the defendant’s burden.
***
THE COURT: I think that the burden has shifted to you. *** I think that you have to
satisfy that by a preponderance of the evidence. And I think that the evidence is so
closely weighed, Officer stopped a burgundy car with temporary plates driven by an
African-American.”
¶ 33 The trial court then granted defendant’s motion to quash arrest and suppress evidence.
On November 4, the State filed a certificate of substantial impairment stating that the
suppression of evidence in the present case substantially impaired the State’s ability to
prosecute the case. This appeal followed.
¶ 34 ANALYSIS
¶ 35 On appeal, the State claims that the evidence at the hearing showed that the police
officer had probable cause to arrest defendant or, alternatively, the police officer had
reasonable suspicion to make the vehicle stop of defendant for investigatory purposes, which
ripened into probable cause to arrest. For the reasons set forth below, we find that the police
officer had reasonable suspicion to make the vehicle stop of defendant for investigatory
purposes which ripened into probable cause to arrest.
¶ 36 Standard of Review
¶ 37 Review of a trial court’s ruling on a motion to quash arrest and suppress evidence
presents mixed questions of fact and law. People v. Lee, 214 Ill. 2d 476, 483 (2005); People
v. Bennett, 376 Ill. App. 3d 554, 563 (2007); People v. Novakowski, 368 Ill. App. 3d 637, 640
(2006). “[A] trial court’s factual and credibility determinations are accorded great deference,
and we reverse only if the findings are against the manifest weight of the evidence.”
Novakowski, 368 Ill. App. 3d at 640; see also People v. Pitman, 211 Ill. 2d 502, 512 (2004);
People v. Moore, 378 Ill. App. 3d 41, 46 (2007). Although we are deferential to findings of
fact made by the trial court, we review de novo the application of the facts to the law to
determine if suppression is warranted under those facts. People v. Gherna, 203 Ill. 2d 165,
175 (2003).
¶ 38 Incorrect Legal Standard Applied
¶ 39 As an initial matter, we find that the trial court determined that the police officer’s
vehicle stop and arrest of defendant was improper when it applied a preponderance of the
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evidence standard. The court stated that it was “fully aware that the standard is a
preponderance, [which] really dictates my ruling” in determining whether the police officer
could stop or arrest. The court found both parties’ arguments were “equally balanced,” but
that the “scale has to be tilted.” This is the definition of the preponderance standard. Proof
by “ ‘[a] preponderance of the evidence is evidence that renders a fact more likely than
not.’ ” (Emphasis added.) People v. Brown, 229 Ill. 2d 374, 385 (2008) (quoting People v.
Urdiales, 225 Ill. 2d 354, 430 (2007)).
¶ 40 The United States Supreme Court has stated that “[f]inely tuned standards such as
proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal
trials, have no place in the [probable-cause] decision.” Illinois v. Gates, 462 U.S. 213, 235
(1983). In addition, probable cause “ ‘does not demand any showing that such a belief be
correct or more likely true than false.’ ? People v. Jones, 215 Ill. 2d 261, 277 (2005) (quoting
Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality op.)).
¶ 41 Here, we conclude that the trial court applied an incorrect standard of proof in
determining whether probable cause existed at the time of defendant’s arrest. The trial
court’s application of the law to the facts presents a legal question, and we, as a reviewing
court, remain free to assess the facts in relation to the issues raised and draw our own
conclusions when deciding what relief should be granted. People v. Luedemann, 222 Ill. 2d
530, 542 (2006) (citing People v. Pitman, 211 Ill. 2d 502, 512 (2004)); see also People v.
Moore, 207 Ill. 2d 68, 75 (2003) (“reviewing court determines a legal question independently
of the trial court’s judgment”). Accordingly, we review de novo whether probable cause
existed at the time of defendant’s arrest. For the reasons set forth below, we conclude that
the trial court erred in determining that no probable cause to arrest existed.
¶ 42 Seizure
¶ 43 The fourth amendment to the United States Constitution generally protects citizens
against unreasonable seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; People
v. Sorenson, 196 Ill. 2d 425, 432 (2001). “A seizure occurs when the police, by means of
physical force or show of authority, have in some way restrained the person’s liberty.”
People v. Perkins, 338 Ill. App. 3d 662, 666 (2003). A vehicle stop implicates the fourth
amendment because stopping a vehicle and detaining its occupants constitutes a “seizure”
within the meaning of the fourth amendment. Whren v. United States, 517 U.S. 806, 809-10
(1996); People v. Jones, 215 Ill. 2d 261, 270 (2005).
¶ 44 Terry Stop & Reasonable Suspicion
¶ 45 Generally, a seizure must be supported by probable cause. U.S. Const., amend. IV;
Ill. Const. 1970, art. I, § 6; Sorenson, 196 Ill. 2d at 432. However, a limited exception to the
probable cause requirement for a seizure was recognized by the United States Supreme Court
in Terry v. Ohio, 392 U.S. 1, 22 (1968). Pursuant to Terry, a police officer may, under
appropriate circumstances, briefly detain a person for investigatory purposes if the officer
reasonably believes that the person has committed, or is about to commit, a crime. Terry, 392
U.S. at 21-22. This brief investigative detention is commonly known as a Terry stop. People
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v. Lippert, 89 Ill. 2d 171, 182 (1982). The United States Supreme Court has further
determined that a vehicle stop, as in this case, is analogous to a Terry stop and, as a result,
is generally analyzed under Terry principles. Jones, 215 Ill. 2d at 270 (citing Knowles v.
Iowa, 525 U.S. 113, 117 (1998), United States v. Sharpe, 470 U.S. 675, 682 (1985), and
Berkemer v. McCarty, 468 U.S. 420, 439 (1984)).
¶ 46 To justify a Terry stop, a police officer may detain a person without having probable
cause to arrest; however, the officer must have a reasonable, articulable suspicion that the
person detained has committed or is about to commit a crime. Terry, 392 U.S. at 21-22;
People v. Lee, 214 Ill. 2d 476, 487 (2005). Under a “reasonable suspicion” standard, the
evidence necessary to justify a Terry stop need not rise to the level of probable cause and can
even arise when no violation of the law is witnessed; however, a mere hunch is insufficient.
People v. Thomas, 198 Ill. 2d 103, 110 (2001); People v. Edward, 402 Ill. App. 3d 555, 562
(2010) (“It is well settled that the facts underlying a claim of reasonable suspicion need not
rise to the level of probable cause and do not require an officer to actually witness a
violation.”). In sum, “[r]easonable suspicion is a less exacting standard than probable cause.”
People v. Ward, 371 Ill. App. 3d 382, 412 (2007).
¶ 47 We first review the information Officer Sweeney possessed at the time before curbing
defendant’s vehicle. Officer Sweeney testified that he received a radio transmission at
approximately 12 p.m. concerning an attempted robbery that had occurred at South Western
Avenue and 105th Street. He testified that he received additional radio transmissions that the
suspect had fled the crime scene in a “red or burgundy” automobile and that the vehicle had
the distinctive trait of having temporary license plates. He testified that another radio
transmission informed him that the suspect was driving eastbound toward the officer’s
location. He also testified that the suspect was described in the radio transmissions as male,
African-American, “skinny,” and 6 feet 2 inches tall. When he observed the defendant
driving the vehicle, he did not observe him commit any violation of the law.
¶ 48 In deciding whether these facts provided Officer Sweeney with reasonable, articulable
suspicion to stop defendant, we find People v. Ross, 317 Ill. App. 3d 26, 30 (2000), and
People v. Bennett, 376 Ill. App. 3d 554, 564 (2007), instructive. In Ross, this court found that
an officer had reasonable suspicion to stop the defendant when he observed the defendant,
within “minutes” of a burglary, walking within the vicinity of the crime scene and where
defendant matched the description of the offender, which was nothing more than “a black
man wearing a blue shirt.” The officer did not observe the defendant violate any laws. Ross,
317 Ill. App. 3d at 30.
¶ 49 In Bennett, this court found that an officer had reasonable suspicion to stop the
defendant after the officer received a radio transmission of a shooting and description of
shooter as a black male wearing a “black hoodie” running northbound on a certain street. The
officer then observed, “[a] few minutes later,” the defendant, who matched that description,
running northbound on that same street. Again, like in Ross, the officer did not observe
defendant violate any laws. Bennett, 376 Ill. App. 3d at 564.
¶ 50 Here, similar to Ross, Officer Sweeney testified that within two to three minutes after
he received the radio transmissions, he observed a red or burgundy-colored automobile with
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the distinctive temporary license plates, which matched the description of the suspect’s
vehicle. See also People v. Young, 306 Ill. App. 3d 350, 353 (1999) (officer had reasonable
suspicion to stop the defendant based upon a telephone tip from the shooting victim’s home
that the shooter was observed driving through the victim’s neighborhood in a grey “police
style” Chevy with a black male passenger, and officers located a grey “police style” Chevy
with two black men in the front seat within the vicinity of the victim’s house almost
immediately thereafter). Similar to Bennett, Officer Sweeney also observed the vehicle
driving eastbound approximately one mile from the crime scene, as he was informed in one
of the radio transmissions
¶ 51 In addition, Officer Sweeney was able to observe the driver of the vehicle. He
testified that the driver of the vehicle was a male, African-American, who appeared to be
“slender.” That general description was consistent with the radio transmissions concerning
the description of the suspect. The facts about the vehicle and the driver provided Officer
Sweeney with specific and articulable facts which reasonably warranted the vehicle stop of
defendant. See People v. Staten, 143 Ill. App. 3d 1039, 1052-53 (1986) (officer had
reasonable suspicion to stop defendants after officer observed vehicle matching suspect’s
vehicle within “about a block” from the crime scene and 1 ½ minutes after another officer’s
original radio transmission describing the suspect’s vehicle and the occupants).
¶ 52 Defendant argues that Officer Sweeney lacked reasonable suspicion because of the
numerous inconsistencies including the fact that his vehicle’s hood was painted black and
his vehicle was “light red” in color and that Officer Sweeney did not testify that defendant
had a mustache connected to a goatee beard, three of the callers did not mention facial hair
on the suspect, and one telephone caller specifically stated that the suspect had no facial hair.
However, as previously discussed, Officer Sweeney had sufficient information to make the
stop because the defendant’s vehicle was red or burgundy in color; the vehicle had a
distinctive trait of temporary license plates; the vehicle was observed within a mile of the
crime scene driving eastbound; the driver was male, African-American, and skinny–all of
which matched the description of the defendant and his vehicle provided by the witnesses
at the scene.
¶ 53 Defendant next argues that, although Officer Sweeney was entitled to act upon the
radio transmissions to initiate the Terry stop, the State failed to show that the information the
officer relied upon was “sufficiently reliable information” to justify the Terry stop.
¶ 54 Certainly, arresting officers may rely upon police radio transmissions to make a Terry
stop or an arrest even if they are unaware of the specific facts that established reasonable
suspicion to initiate a Terry stop or probable cause to make that arrest. People v. Jackson,
348 Ill. App. 3d 719, 729 (2004) (citing People v. Lockhart, 311 Ill. App. 3d 358, 362
(2000)); People v. Bascom, 286 Ill. App. 3d 124, 127-28 (1997); People v. Perez, 249 Ill.
App. 3d 912, 917 (1993) (police officers are entitled to act upon information received in
official communications to initiate a Terry stop). In addition, when officers are working in
concert, reasonable suspicion or 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. People v. Fenner, 191 Ill. App. 3d 801, 806 (1989). However,
the State must demonstrate that a “third party’s information ‘must bear some indicia of
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reliability and must be sufficient to establish the requisite quantum of suspicion.’ ? Jackson,
348 Ill. App. 3d at 730 (quoting People v. Brown, 343 Ill. App. 3d 617, 623 (2003)); see also
People v. Tisler, 103 Ill. 2d 226, 237 (1984) (citing Illinois v. Gates, 462 U.S. 213 (1983)).
¶ 55 The source of the information may be identified or unidentified, an ordinary citizen
or a paid informant. Jackson, 348 Ill. App. 3d at 730. The source may be a victim, an
eyewitness, or other witness. Jackson, 348 Ill. App. 3d at 730. “ ‘[I]t matters not by what
name the informant is labeled; we look rather to the informant’s reliability as only one of the
factors to be considered in the totality of the circumstances approach.’ ? Jackson, 348 Ill.
App. 3d at 730 (quoting People v. Adams, 131 Ill. 2d 387, 397 (1989)). The fact that the
information came either from the victim or from an eyewitness to the crime is entitled great
weight in evaluating its reliability. Jackson, 348 Ill. App. 3d at 730 (citing People v. Ertl, 292
Ill. App. 3d 863, 870 (1997)); Brown, 343 Ill. App. 3d at 623.
¶ 56 In the case at bar, Duhna testified concerning information 911 emergency services
received from eyewitness at the crime scene. The four telephone calls were also received
within a 10-minute time span after the offense occurred and provided information that a
robbery had occurred, the location of the robbery and description of the suspect. Duhna also
testified that the information provided by the telephone callers was transmitted to the police
department. Thus, the information provided here from the eyewitnesses is entitled great
weight in our evaluation of its reliability, or at least a fair degree of reliability. People v.
Shafer, 372 Ill. App. 3d 1044, 1050 (2007) (information conveyed through 911 emergency
services carries a fair degree of reliability, even if the caller does not specifically identify
himself or herself, because the police maintain records of the calls not only to respond to
emergency situations, but to investigate false reports).
¶ 57 The information from the telephone calls appears even more reliable because all four
telephone callers provided substantially similar physical descriptions of the suspect,
including his clothing of a dark-colored vest, a light blue baseball cap, and jeans. One
telephone caller also provided a description of the suspect’s vehicle. Those descriptions were
consistent with the descriptions Officer Sweeney testified that he received from the radio
transmissions, namely that the suspect was male, African-American, 6 feet 2 inches tall,
skinny, and driving a red or burgundy-colored automobile with temporary license plates.
¶ 58 The information was further consistent with Officer Sweeney’s initial observation of
defendant that occurred within two to three minutes of receiving the information from the
radio transmissions. At that point in time, Officer Sweeney observed defendant, who was
male, African-American and “slender” driving a “red or burgundy” colored automobile, with
the distinctive temporary license plates attached, within one mile of the crime scene. As
previously noted, that information provided Officer Sweeney from the radio transmissions
reasonable and articulable suspicion to justify a Terry stop.
¶ 59 Defendant next claims that, even if this court determines that the vehicle stop
constituted a proper Terry stop, the continued detention of defendant was an
“unconstitutional seizure.” Defendant first argues that the stop escalated into an “illegal
seizure” when defendant was “not allowed to drive past police vehicles blocking his car” and
when Officer Sweeney determined defendant was not free to leave. We do not find
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defendant’s argument persuasive.
¶ 60 The restraint of defendant in this case did not transform the Terry stop into an “illegal
seizure” or an arrest. Under Terry, a police officer is specifically permitted to briefly detain
an individual to investigate the possibility of criminal behavior absent probable cause to
arrest. Terry, 392 U.S. at 21-22; People v. Bennett, 376 Ill. App. 3d 554, 565 (2007) (citing
People v. Young, 306 Ill. App. 3d 350, 354 (1999)). During the course of a Terry stop, a
person is “no more free to leave than if he were placed under a full arrest.” (Internal
quotation marks omitted.) Ross, 317 Ill. App. 3d at 32 (quoting People v. Paskins, 154 Ill.
App. 3d 417, 422 (1987), quoting People v. Roberts, 96 Ill. App. 3d 930, 933 (1981)). Thus,
mere restraint does not turn an investigatory stop into an arrest. Young, 306 Ill. App. 3d at
354. Rather, an arrest is distinguishable from an investigatory stop based on the length of
detention and the scope of the investigation following the initial stop. Bennett, 376 Ill. App.
3d at 565; Ross, 317 Ill. App. 3d at 30; Young, 306 Ill. App. 3d at 354. The State bears the
burden of showing that a seizure based on reasonable suspicion was sufficiently limited in
duration and scope. Ross, 317 Ill. App. 3d at 30.
¶ 61 In the case at bar, the length of defendant’s detention and the scope of the
investigation were sufficiently limited. Officer Sweeney testified that within two to three
minutes of receiving radio transmissions concerning the description of the suspect’s vehicle,
he stopped defendant’s vehicle, which matched that description. After exiting his police
vehicle and speaking with defendant, the officer radioed for a police wagon, which arrived
within five minutes. The defendant was then transported by the police wagon to the
upholstery store, which was located approximately one mile from the location of the vehicle
stop. Officer Sweeney testified that the from the time he received the radio transmissions to
the time he arrested defendant was approximately 15 minutes.
¶ 62 In addition, Duhna testified to a timeline that was similar to Officer Sweeney’s
timeline concerning the length of defendant’s detention. She testified that an event query
documented that a police officer stopped the suspect at approximately 12:10 p.m. and the
suspect was transported to the crime scene at 12:13 p.m. As noted, Officer Sweeney testified
that he arrested defendant at approximately 12:15 p.m. or 12:20 p.m.
¶ 63 Considering factors such as the five-minute waiting time for the police wagon to
transport defendant and the approximate one-mile distance from the location of the Terry
stop to the crime scene, we cannot say that the less-than-15-minute detention of defendant
was too long in duration. See, e.g., People v. O’Dell, 392 Ill. App. 3d 979, 987 (2009)
(90-minute detention of the defendant was not too long in duration to be justified as an
investigatory stop where the length of time required to confirm or dispel the officer’s
suspicions was attributable to factors such as the early morning hour when the stop
occurred); Ross, 317 Ill. App. 3d at 30-31 (eight-minute time lapse between the time police
effectuated the defendant’s stop to the time of arrest following victim’s positive
identification of defendant via a radio dispatch fell within permissible scope of Terry stop).
¶ 64 The scope of the investigation was also sufficiently limited. At the time of the vehicle
stop, Officer Sweeney testified that he explained to defendant the reason for the stop and
defendant denied involvement in the attempted robbery. Defendant then agreed to be
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transported to the upholstery store for identification purposes “to clear this up.” After being
transported to the upholstery store, four witnesses immediately identified him as the offender.
Officer Sweeney then placed defendant under arrest. A brief detention for the purpose of a
quick determination as to defendant’s involvement in the attempted robbery comports with
the permissible scope of an investigation after a Terry stop. Ross, 317 Ill. App. 3d at 30-31
(eight-minute time lapse between the time police effectuated the defendant’s stop to the time
of arrest following victim’s positive identification of the defendant fell within permissible
scope of Terry stop); see also Young, 306 Ill. App. 3d at 354 (detention reasonably limited
to obtaining an immediate identification of defendant by the victim).
¶ 65 Defendant also argues that his transportation in a police wagon to the crime scene for
identification purposes constituted an unreasonable seizure under the fourth amendment. We
disagree.
¶ 66 The purpose of a Terry stop is to allow a police officer to investigate the
circumstances that provoke suspicion and either confirm or dispel his or her suspicions. Ross,
317 Ill. App. 3d at 31 (citing People v. Fasse, 174 Ill. App. 3d 457, 460-61 (1988)). Our
supreme court has determined that the transportation of a defendant to the crime scene for
the purpose of obtaining an immediate identification of defendant by eyewitnesses, also
referred to as a “showup,” is not necessarily an unreasonable seizure under the fourth
amendment. People v. Lippert, 89 Ill. 2d 171, 181-82 (1982). “While showups are
disfavored, they may be justified by circumstances, such as the need to determine: (1)
whether a suspect is innocent and should be released immediately; and (2) whether the police
should continue searching for a fleeing culprit while the trail is still fresh.” People v.
Rodriguez, 387 Ill. App. 3d 812, 830 (2008).
¶ 67 In this case, Officer Sweeney’s decision to transport defendant to the crime scene was
reasonable under the circumstances, because defendant denied involvement in the attempted
robbery and agreed to be transported to the crime scene for immediate identification
purposes. As noted, defendant was then transported approximately one mile from the
location of the Terry stop to the upholstery store where the two victims and two witnesses
positively identified him as the offender. Accordingly, we cannot say that the transportation
of defendant to the crime scene was an unreasonable seizure under the fourth amendment.
See, e.g., Ross, 317 Ill. App. 3d at 31 (finding transportation to crime scene for an immediate
identification to either inculpate or exculpate the suspect was minimally intrusive when
compared to the benefit of the immediate investigation); see also Bennett, 376 Ill. App. 3d
at 566 (same). Accordingly, we conclude that the investigatory stop of defendant was proper.
¶ 68 Having found that the police had reasonable suspicion to justify a Terry stop of
defendant, we further find that the reasonable suspicion ripened into probable cause to arrest.
¶ 69 The Arrest and Probable Cause
¶ 70 In contrast to a Terry stop, a full-blown arrest requires the higher standard of probable
cause. “ ‘Probable cause to arrest exists when the facts known to the officer at the time of the
arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has
committed a crime.’ ? People v. Jackson, 232 Ill. 2d 246, 275 (2009) (quoting People v.
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Wear, 229 Ill. 2d 545, 563-64 (2008), citing People v. Love, 199 Ill. 2d 269, 279 (2002)).
“The probable-cause standard is incapable of [a] precise definition or quantification into
percentages because it deals with probabilities and depends on the totality of the
circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citing Illinois v. Gates, 462
U.S. 213, 232 (1983), and Brinegar v. United States, 338 U.S. 160, 175 (1949)). The
existence of probable cause depends upon the totality of the circumstances at the time of the
arrest. Love, 199 Ill. 2d at 279.
¶ 71 In the case at bar, the evidence provided at the hearing established that Officer
Sweeney had reasonable, articulable suspicion to make a proper Terry stop of defendant’s
vehicle. Officer Sweeney received radio transmissions which informed him of an attempted
robbery, the location where the crime occurred, a physical description of the suspect, which
included a description of the suspect’s vehicle that had a distinctive trait of temporary license
plates. Officer Sweeney received an additional radio transmission that the suspect was
driving eastbound in his vehicle near Officer Sweeney’s location, which was approximately
one mile from the crime scene.
¶ 72 Within two to three minutes, Officer Sweeney observed a vehicle “red or burgundy”
in color with the distinctive temporary license plates, matching the description of the
suspect’s vehicle, driving eastbound as reported. He further observed that the driver was
male, African-American, and “slender,” which matched the physical characteristics of the
suspect.
¶ 73 After stopping defendant’s vehicle, the officer approached defendant’s vehicle and
observed that the defendant was “sweating profusely.” He further discovered a “dark jacket”
and a “light baby blue” baseball cap in the vehicle, which was similar to the description of
the clothing worn by the suspect at the time of the offense. He asked the defendant to exit his
vehicle and then observed that defendant was approximately 6 feet 2 inches tall, which
matched the description of the suspect’s height that was provided in the radio transmissions
and was consistent with Dunha’s testimony concerning the suspect’s height described in the
telephone calls from the eyewitnesses at the scene.
¶ 74 After Officer Sweeney testified that he informed defendant the reason for the vehicle
stop and defendant agreed to accompany the officer to the crime scene for identification
purposes. Upon arriving at the crime scene, the two victims and two witnesses immediately
identified defendant as the offender. At that point in time, Officer Sweeney arrested
defendant.
¶ 75 “[W]hether probable cause exists is governed by commonsense considerations, and
the calculation concerns the probability of criminal activity, which does not even demand a
showing that the belief that the suspect has committed a crime be more likely true than
false.” People v. Hopkins, 235 Ill. 2d 453, 477 (2009). Considering the totality of the
circumstances, the facts known to the officer at the time of the arrest were sufficient to lead
a reasonably cautious person to believe that defendant was the suspect in the attempted
robbery at the upholstery store, and thus the arrest was lawful. Therefore, the trial court erred
in granting defendant’s motion to quash arrest and suppress evidence, and reversal is
warranted.
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¶ 76 CONCLUSION
¶ 77 For the foregoing reasons, we find that the police officer had reasonable suspicion
to make the vehicle stop of defendant for investigatory purposes which ripened into probable
cause to arrest, and thus the ruling of the trial court is reversed and remanded.
¶ 78 Reversed and remanded.
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