People v. Sims ( 2014 )

Illinois Official Reports
Appellate Court
People v. Sims, 2014 IL App (1st) 121306Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption HENRY SIMS, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-12-1306
Filed April 30, 2014
Rehearing denied July 9, 2014
Held The trial court erred in denying defendant’s motion to suppress the
(Note: This syllabus cocaine discovered in his pants during a Terry stop and frisk, where
constitutes no part of the the arresting officer’s testimony that he saw defendant “stuff an
opinion of the court but unknown object into his crotch area,” that he recognized defendant
has been prepared by the and knew he had been arrested for unlawful use of a weapon and that
Reporter of Decisions defendant’s “movement” as he walked away was indicative of
for the convenience of “someone that could be armed” was insufficient to give the officer a
the reader.) reasonable suspicion to believe defendant was committing the crime
of unlawful use of a weapon, especially when the officer only saw
defendant place his hand in his pants and never saw a weapon or
contraband; therefore, defendant’s conviction for unlawful possession
of a controlled substance was reversed.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-12636; the
Review Hon. William H. Hooks, Judge, presiding.
Judgment Reversed.
Counsel on Michael J. Pelletier and Patrick Morales-Doyle, both of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Carlos Vera and
Michelle Katz, Assistant State’s Attorneys, of counsel), for the
People.
Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion.
Justices Neville and Pucinski concurred in the judgment and opinion.
OPINION
¶1 Defendant appeals the trial court’s denial of his motion to suppress evidence that was
seized during a Terry stop and frisk. Terry v. Ohio, 392 U.S. 1 (1968). He argues that the
arresting officer did not have sufficient reasonable suspicion of criminal activity. While
responding to an unrelated situation, a police officer saw defendant, sitting out in front of a
building, “stuff an unknown object into his crotch area” and begin to walk away. The officer,
who recognized defendant and knew he had an arrest for unlawful use of a weapon, stopped
and searched defendant on the ground that his “movement” was indicative of “someone that
could be armed.” Although defendant turned out to be unarmed, the officer seized a plastic
bag containing 25 smaller plastic bags of a substance that ultimately tested positive for
cocaine.
¶2 After a bench trial, the trial court found defendant guilty of the possession of a controlled
substance with the intent to deliver and sentenced him to six years’ incarceration on his
criminal record as a Class X offender. We reverse the conviction and sentence on the ground
that the stop was not supported with sufficient reasonable suspicion that a crime had been, or
was about to be, committed.
¶3 Background
¶4 The facts are largely undisputed. On June 14, 2010, Officer Robert Vahl, an 11-year
veteran of the Chicago police department, was on a routine patrol in an unmarked police
vehicle. Vahl saw two individuals, who are not parties to this appeal, engage in activity that
he believed was “about to be a narcotics transaction.” Vahl did not see defendant Henry Sims
with either individual at any time. Vahl and his partner stopped to investigate. Vahl followed
one suspect through a gangway and his partner followed the other in a different direction. As
Vahl, who wore civilian clothing with a vest and star around his neck, left the gangway, he
saw Sims sitting in front of what appeared to be an abandoned building. Vahl saw Sims
“stuff an unknown object into his crotch area” and begin to walk away. Vahl, recognizing
Sims and recalling that he had been arrested for unlawful use of a weapon, stopped Sims,
walked with him a few feet down the gangway, and conducted a brief search. According to
Vahl, he conducted the search because Sims’s “movement was consistent with someone that
could be armed,” but admitted that it is not illegal for Sims to stuff his hand down his pants.
Vahl began his search by placing his open hand on Sims’s crotch, where he felt what he
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immediately recognized as suspected narcotics. Testing revealed that the recovered material
consisted of 25 individual items, 16 of which were tested, and found to contain in excess of 5
grams of cocaine.
¶5 Sims filed a pretrial motion to suppress the evidence, which the trial court denied. The
only witness at the hearing on the motion to suppress was Officer Vahl. At trial, Vahl offered
testimony consistent with his testimony at the hearing. The parties stipulated to the chain of
custody, weight, and composition of the recovered substance. The trial court found Sims
guilty of possession of a controlled substance with intent to deliver and sentenced him to six
years’ incarceration.
¶6 Sims contends that the trial court erred when it denied his motion to suppress the
evidence because Officer Vahl’s actions were not supported by the reasonable suspicion
required for a Terry stop.
¶7 Analysis
¶8 The fourth amendment to the United States Constitution (U.S. Const., amend. IV), which
applies to the states through the fourteenth amendment (U.S. Const., amend. XIV), and
article I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, § 6), protects against
unreasonable searches and seizures. Generally, this protection requires a warrant supported
by probable cause. See People v. Cummings, 2014 IL 115769, ¶ 14. But, the United States
Supreme Court has recognized exceptions to the warrant requirement, including an
investigative stop supported by reasonable suspicion that a crime has been, or is about to be,
committed, commonly known as a Terry stop. Id. ¶ 15 (citing Terry, 392 U.S. at 21-22); see
also 725 ILCS 5/107-14 (West 2010).
¶9 To constitute reasonable suspicion, the evidence need not rise to the level of probable
cause, and it is not necessary that the police officer witness a crime; however, a hunch is
insufficient. People v. Daniel, 2013 IL App (1st) 111876, ¶ 33. Reasonable suspicion is based
on an objective standard with the facts viewed from the perspective of a reasonable officer at
the time of the stop. People v. Sanders, 2013 IL App (1st) 102696, ¶ 14. A police officer
must be able to point to specific articulable facts which justify the intrusion on the suspect’s
liberty (id.), “ ‘such as when the officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot’ ”
(People v. Jackson, 2012 IL App (1st) 103300, ¶ 17 (quoting People v. Ertl, 292 Ill. App. 3d
863, 868-69 (1997))). “In sum, ‘[r]easonable suspicion is a less exacting standard than
probable cause.’ ” Daniel, 2013 IL App (1st) 111876, ¶ 33 (quoting People v. Ward, 371 Ill.
App. 3d 382, 412 (2007)). The decision to make an investigatory stop is based on the totality
of the circumstances. Sanders, 2013 IL App (1st) 102696, ¶ 14.
¶ 10 A Terry stop and frisk entails a two-part analysis. First, a reviewing court must determine
whether a police officer had reasonable suspicion to justify the temporary detention of a
suspect. Jackson, 2012 IL App (1st) 103300, ¶ 19. A frisk, however, is justified only when
the officer can further articulate a reasonable belief that the suspect was armed and
dangerous. Id.¶ 11 Our review of a trial court’s ruling employs a two-part standard of review. Cummings,
2014 IL 115769, ¶ 13 (citing People v. Luedemann, 222 Ill. 2d 530, 542 (2006)). The trial
court’s findings of fact are given deference and will be reversed only if they are against the
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manifest weight of the evidence. Id. On the other hand, the trial court’s application of the law
to the established historical facts is given no deference, and our review is de novo. Id. Each
case turns on its own facts. Terry, 392 U.S. at 30. Nevertheless, “that does not mean that a
court is free simply to ignore an entire body of relevant case law and the principles and
guidelines articulated therein.” Luedemann, 222 Ill. 2d at 552.
¶ 12 The facts are few and largely undisputed. Officer Vahl encountered Sims while he was
investigating a suspected narcotics transaction, but he did not, before the encounter, see Sims
engage in any illegal activity. When Vahl saw Sims put an object into the front of his pants,
Vahl believed Sims’s actions were consistent with secreting a weapon. Vahl knew that Sims
had been arrested for a weapons violation but did not know the outcome of the arrest. As
Sims began to walk away, Vahl stopped him, escorted him down the gangway, and
conducted a pat-down that revealed suspected narcotics.
¶ 13 We find the combination of these facts insufficient to give Vahl a reasonable suspicion
that Sims was committing the crime of unlawful use of a weapon. Vahl never testified that he
saw a weapon, or any other contraband. He only saw Sims place his hand in his pants.
¶ 14 The cases on which Sims relies are instructive. In People v. F.J., 315 Ill. App. 3d 1053(2000), the juvenile respondent was arrested and charged with unlawful possession of a
weapon after a frisk revealed a handgun in his pocket. The police officer who conducted the
search testified that he was on patrol following the report of a gang disturbance in a
high-crime area. The respondent was seen standing at the entrance to an alley. The officer
decided to conduct a field interview. As he was getting out of his car, the officer saw the
respondent put an unknown object in his pocket. Because the officer did not know what the
object was, he conducted a pat-down search and recovered the handgun. The trial court
denied the respondent’s motion to suppress evidence and found the respondent delinquent.
On appeal, this court reversed, holding the police officer lacked a reasonable suspicion of
criminal activity that would justify a Terry stop. Id. at 1059. This court observed “the fact
that someone puts something in his or her pocket does not justify the inference that the
person is involved in criminal activity.” Id. at 1058.
¶ 15 Sims’s action in placing an object in the front of his pants and Vahl’s recognition of Sims
and knowledge of a prior arrest might create in the mind of a reasonable officer a “gut
feeling” that something might be afoot. But, reasonable suspicion requires more than a hunch
or assumption that the suspect is up to no good; it requires articulable facts which support the
inference that a crime has been, or is about to be, committed. Sanders, 2013 IL App (1st)
102696, ¶ 14. Hunches or assumptions by nature speak in possibilities, not reason or
objective truths. Even Vahl admitted on cross-examination that, although suspicious, it is not
a crime to place an object in one’s pants. And, all Vahl saw was Sims put something that he
could not identify in the crotch area of his pants and walk away from him.
¶ 16 Sims’s reliance on People v. Fox, 203 Ill. App. 3d 742 (1990), is squarely on point. In
Fox, the defendant was riding a motorcycle, when he was stopped for speeding. The officer
wrote him a citation. While he was writing the citation, the officer noticed the defendant
tugging at a vest he was wearing. As the defendant rode away, the officer noticed a small
bulge that made him curious even though it did not appear large enough to be a weapon.
When the officer saw defendant reach back to that spot and make a motion that suggested to
the officer that the defendant was adjusting a weapon to make it less visible, the officer
stopped the defendant a second time. The defendant testified to the contrary, that he adjusted
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his vest for better wind resistance while riding. A search revealed a weapon. The reviewing
court first decided that the second stop must be viewed as independent of the speeding
violation and supported by a separate finding of reasonable suspicion. Id. at 745-46. The
reviewing court ultimately concluded that the officer’s conclusion that the defendant was
armed was supported only by a hunch based on conduct that had an innocent explanation and
affirmed the order of the trial court suppressing evidence of the weapon. Id. at 747.
¶ 17 The similarities between the Fox case and the facts here are striking, and we do not find
the differences significant enough to support a different result. First, unlike Fox, Vahl
testified that he knew of a prior weapons offense arrest. But, Vahl, like the officer in Fox,
had a hunch that Sims was hiding a weapon, and a hunch, even a hunch supported by a
general background of criminal activity, is not enough to support a Terry stop. See People v.
Thomas, 198 Ill. 2d 103, 110 (2001) (holding knowledge that defendant had been previously
arrested for drug offenses and had recently been released from prison was insufficient to
support investigative stop even when coupled with tip that defendant was using his bicycle to
deliver illegal drugs). Second, unlike Fox, although Vahl admitted that it was not a criminal
offense, no one offered an innocent explanation for Sims placing his hand in the front of his
pants. Nevertheless, we find it is the burden of the State to present evidence supporting a
reasonable inference of criminal activity and not Sims’s burden to justify his actions to the
State by supplying innocent explanations for his behavior. See People v. Cregan, 2014 IL
113600, ¶ 23 (although ultimate burden of proof remains with defendant, once defendant
presents prima facie case that evidence was obtained in illegal search, burden shifts to State
to provide evidence to counter defendant’s prima facie case). Until a suspect’s actions are
sufficient to create more than a hunch of criminal activity, the fourth amendment protects
both innocent and suspicious conduct with equal vigor. Therefore, we find that the State
failed to establish that Vahl had a reasonable suspicion sufficient to justify the intrusion on
Sims’s right to go about his business free from intrusion by the police.
¶ 18 We find the State’s reliance on People v. Colyar, 2013 IL 111835, misplaced. In Colyar,
our supreme court upheld the search of a vehicle based on reasonable suspicion that a
weapon was present where police officers observed a bullet in the center console during the
officers’ investigation into a vehicle blocking the entrance to a motel parking lot. Id.
¶¶ 43-45. By contrast, Vahl never observed a weapon or a bullet. Accordingly, no search was
necessary to protect his safety.
¶ 19 We conclude that the trial court erred when it denied Sims’s motion to suppress the
evidence recovered during the unlawful search of his pants. Because, absent the illegally
seized narcotics, the State cannot meet its burden of proving defendant’s guilt beyond a
reasonable doubt, we reverse Sims’s conviction and sentence outright. See People v.
Rhinehart, 2011 IL App (1st) 100683, ¶ 20.
¶ 20 Mittimus and Fines and Fees
¶ 21 Having reversed Sims’s conviction, his requests to correct the mittimus and the fines and
fees order are now moot, and we need not discuss the issues further.
¶ 22 We reverse the judgment of the circuit court of Cook County.
¶ 23 Reversed.
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