People v. Gomez , 105 N.E.3d 901 ( 2018 )

2018 IL App (1st) 150605No. 1-15-0605
SECOND DIVISION
April 3, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 14 CR 13389
)
EDUARDO GOMEZ, )
) The Honorable
Defendant-Appellant. ) Maura Slattery Boyle,
) Judge Presiding.
______________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justice Mason concurred in the judgment and opinion.
Justice Hyman concurred in part and dissented in part.
OPINION
¶1 Following a bench trial, defendant Eduardo Gomez was convicted of being an armed
habitual criminal (AHC) (720 ILCS 5/24-1.7 (a) (West 2014)), of aggravated unlawful use of a
weapon (AUUW) (720 ILCS 5/24-1.6 (West 2014)), and of unlawful use of a weapon by a felon
(720 ILCS 5/24-1.1 (West 2014)). He was sentenced to three concurrent terms of seven years’
imprisonment and assessed various fines, fees, and costs. On appeal, defendant argues that (1)
the circuit court erred in denying his pretrial motion to suppress, (2) his aggravated unlawful use
of a weapon conviction should be vacated, and (3) the fines, fees, and costs imposed by the
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circuit court should be reduced. For the reasons set forth herein, we affirm defendant’s
convictions for the offenses of armed habitual criminal and unlawful use of a weapon by a felon;
however, we vacate his aggravated unlawful use of a weapon conviction. In addition, we remand
the matter to the circuit court with instructions to modify its order assessing fines, fees, and
costs.
¶2 BACKGROUND
¶3 On July 3, 2014, following an encounter with several Chicago police officers, defendant
was found to be in possession of a loaded firearm and was charged with multiple offenses,
including armed habitual criminal, aggravated unlawful use of a weapon, and unlawful use of a
weapon by a felon. After being taken into police custody, defendant admitted to possessing the
firearm.
¶4 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing
that he was unlawfully detained and searched absent probable cause or a warrant in violation of
his constitutional rights. As such, he contended that suppression of the firearm and his
incriminatory statement was warranted.
¶5 The circuit court subsequently presided over a hearing on defendant’s motion. At the
hearing, defendant’s friend, Frankie Baez, testified that at approximately 10:45 p.m. on July 3,
2014, he, defendant, and their mutual friend, Enriquez Salvador (Junior), were sitting in a parked
vehicle located near the intersection of 52nd Street and Kildare Avenue. Baez explained that they
were waiting for his girlfriend to join them. The vehicle in which they were sitting was owned by
Junior’s father, who operated a taxi company. Baez described the vehicle as a white “taxi car.” 1
1
Although Baez describes the vehicle as a taxi car, it is not clear whether or not the
vehicle bore any signs or markings indicating that it was used as a taxi. As will be shown below,
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Junior was seated in the driver’s seat of the vehicle, defendant was seated in the backseat directly
behind Junior, and Baez was seated in the backseat next to defendant. While the three men were
seated in the parked vehicle, an unmarked “cop car,” containing three plain-clothes officers,
pulled up alongside of them. The officers “flashed their lights” on the men, drew their weapons,
and ordered Baez, Junior, and defendant to raise their hands and exit the vehicle. The three men
complied. Baez testified that after he and defendant exited the vehicle, they placed their hands on
opposite sides of the trunk. The officers then began searching them. As they were doing so, the
officers heard a noise. Baez explained: “As they were searching us I guess they had like heard
the noise of the firearm I guess fell on the floor and that’s when they had right away put the
flashlight all over [and] under the car and stuff.” The officer who was closest to defendant then
bent down and recovered a firearm from underneath the car. Baez testified that the officers did
not present a search warrant or an arrest warrant for defendant at any time during the encounter.
¶6 On cross-examination, Baez acknowledged that defendant was a good friend whom he
had known for several years. When asked additional details about the night in question, Baez
admitted that the three men had been driving around the neighborhood in Junior’s father’s car for
at least 40 minutes before stopping the vehicle on 52nd Street. He estimated that they were
sitting in the parked vehicle for 10 to 15 minutes before the police officers arrived on the scene.
Baez also acknowledged that when the officers pulled up alongside of Junior’s father’s car, the
officers did not immediately exit their unmarked car and order the men to raise their hands in the
air; rather, the officers remained seated in their vehicle and spoke to Junior while the windows of
the two vehicles were rolled down and inquired what the three men were doing in the
neighborhood that night. During the course of this conversation, Baez admitted that defendant
the detective who encountered the vehicle simply described it as a white Mercury Grand
Marquis.
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started “scooting down in his seat,” which was located right behind Junior’s seat. Baez further
admitted that defendant was hiding a gun in his waistband. In addition, he acknowledged that the
officers exited their unmarked vehicle only after they observed defendant scooting down in his
seat. The officers then ordered each of the men to show their hands. Although defendant
complied with the officers’ request and raised his hands, Baez admitted that defendant continued
scooting down in the backseat until they were all ordered to exit the car. As Baez and his friends
exited the vehicle, he heard one of the officers reference a noise, saying “What was that? What
was that? What was that?” The officers then used their flashlights to illuminate the ground and
recovered defendant’s gun next to where defendant was standing. Baez, however, denied that he
heard the sound of a gun dropping.
¶7 Following Baez’s testimony, the defense rested, and defense counsel moved for a
directed finding, which the circuit court denied. The State then called Chicago police detective
Anthony Amato to testify. Detective Amato testified that on July 3, 2014, he was working with
Sergeant Karczewski and Officer Daniel Pacelli. The three officers were wearing plain clothes
and were riding in an unmarked police vehicle. Detective Amato, the driver of the unmarked
police car, confirmed that at approximately 10:45 p.m. that evening, he and his partners
encountered defendant, who was a passenger in a white Mercury Grand Marquis parked near the
area of 4242 West 52nd Street. He explained that he had observed the vehicle on two prior
occasions during a 30 to 40 minute period of time as he and his partners patrolled the area.
During the previous two occasions that he observed the Grand Marquis, the vehicle was moving.
On this occasion, however, the vehicle was parked facing westbound on 52nd Street. After
observing the same vehicle for the third occasion in a short period of time, Detective Amato
pulled up next to the vehicle and began speaking to the driver of the Grand Marquis through his
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open car window. He explained that he asked the driver “what he was doing, [and] if he lived
around there.” The driver initially responded that he lived down the street; however, when
Detective Amato asked him to identify his “exact address,” the driver admitted that he did not
live down the street, but resided somewhere on the “other side of Pulaski.”
¶8 As he spoke to the driver of the Grand Marquis, Detective Amato was able to observe
defendant, who was seated directly behind the driver in the rear of the vehicle. When the
conversation began, defendant was “seated upright” with his torso visible to the officers. As the
conversation proceeded, however, defendant began “slouching down in the car. *** He just kept
on like steadily slouching down as [the officers] were talking to the driver. So his head was, you
could only see like his head at one point in time.” Detective Amato categorized defendant’s
behavior as “suspicious.” Based on defendant’s suspicious behavior and the driver’s responses to
his inquiries, Detective Amato and his partners exited their unmarked vehicle and approached the
parked Grand Marquis. Detective Amato and Sergeant Karczewski walked to the driver’s side of
the vehicle while Officer Pacelli relocated to the passenger side of the vehicle. As Detective
Amato stood by the driver’s side of the Grand Marquis, he observed defendant leaning away
from him and “toward the middle portion of the seat” with his right forearm covering the
waistband of his pants. Defendant’s right hand “was actually under his shirt.” Detective Amato
again found defendant’s behavior to be “suspicious,” and as a result, he asked to see defendant’s
hands. Initially, defendant only raised his left hand into the air and continued positioning his
right arm and hand “along his waistband.” He then “started showing his right hand,” while still
attempting to use his right forearm to shield the waistband of his pants. Based on his
observations of defendant’s behavior, Detective Amato “believed that [defendant] had a weapon
on him” and ordered all three occupants of the Grand Marquis to exit the vehicle. Defendant and
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the two other men complied. As defendant was exiting the vehicle, he “still had his arm over his
waistband.” After he completely extricated himself from the car, however, he then immediately
“turned around and he bent his entire body over the rear of the car.” In response, Sergeant
Karczewski “grabbed [defendant] by his arms and stood him upright.” When he did so, a
handgun dislodged from defendant’s waistband and fell to the ground. Detective Amato
immediately recovered the gun, which was loaded, and defendant was then placed into custody.
¶9 On cross-examination, Detective Amato categorized the area in which the Grand Marquis
was parked as “residential.” He could not recall whether there were any vehicles parked
immediately in front of or in back of the Grand Marquis when he pulled up next to the vehicle.
Detective Amato testified, however, that “we weren’t blocking [the driver] in at that point in
time. We were just having a conversation with him.” During the conversation, he inquired
whether the driver lived in the area. When the driver responded that he lived down the street,
Detective Amato then requested the driver to identify his exact address. It was at that point that
the driver admitted he did not live on the street and Detective Amato observed defendant begin
slouching in his seat. Although he intended to ask for the occupants’ identifications when he
exited his unmarked car, Detective Amato did not recall whether he did so because his focus
shifted to defendant slouching and leaning in his seat. At that point in time, he ordered all of the
occupants out of the Grand Marquis “for safety reasons.” Detective Amato conceded that he did
not actually see a gun on defendant’s person before he ordered defendant and the two other
occupants of the Grant Marquis to raise their hands and exit the vehicle. He further conceded that
defendant and the two other occupants of the Grand Marquis were not acting aggressively toward
the officers before they were ordered out of the vehicle. Although he believed that defendant was
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in possession of a firearm, Detective Amato denied that he and his partners ever drew their
weapons when defendant, Baez, and Junior exited the vehicle.
¶ 10 Following Detective Amato’s testimony, the parties delivered closing arguments. After
hearing the aforementioned testimony and the arguments of the parties, the court denied
defendant’s motion to suppress. In delivering its ruling, the court found that the encounter
between police and the occupants of the Grand Marquis began as a “lawful” field interview, but
that defendant’s conduct “raise[d] things into question.” The court explained: “He’s not in the
manner in which the other two occupants are. The way his hands were positioned, his arms
positioned, everybody is out of the vehicle he’s bending over. He won’t stand up. Finally he
stood up. It wasn’t a search. As [the officers] assisted him in standing up *** the weapon falls.
There’s no violation of [the] 4th amendment. *** There was probable cause. It was a proper
stop. There was not any type of unlawful detention. Motion to suppress is denied.”
¶ 11 Following the suppression hearing, defendant waived his right to a jury trial, and elected
to proceed by way of a bench trial. At trial, the parties stipulated to the testimony that Detective
Amato provided during the earlier hearing on defendant’s motion to suppress. The State then
called upon him to provide further testimony about the handgun that fell from the waistband of
defendant’s pants. Specifically, Detective Amato testified that when he recovered the handgun,
he discovered that it was loaded and contained two live rounds. He further testified that after he
recovered defendant’s weapon, defendant “spontaneously” explained that he had just discovered
the gun in a garbage can and asked the officers to “give [him] a break.” At that point, defendant
was advised of his Miranda rights and subsequently transported to the 8th District police station
for questioning. After defendant arrived at the police station, Detective Amato and Sergeant
Karczerski conversed with him. During that conversation, defendant admitted that he “was
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holding the gun for S.D.’s from 59th Street.” Detective Amato understood defendant’s reference
to “S.D.’s” to mean the street gang known as Satan’s Disciples.
¶ 12 Following Detective Amato’s testimony, the State presented a series of stipulations
reached by the parties. Specifically, the parties stipulated that defendant had previously been
convicted of robbery and armed robbery. The parties further stipulated that defendant was on
parole at the time he was found to be in possession of a firearm on July 3, 2014, and that he had
not been issued a Firearm Owner’s Identification (FOID) card. After presenting the
aforementioned stipulations, the State rested its case-in-chief. Defendant moved for a directed
verdict, but the motion was denied. Defendant elected not to testify and defense counsel rested
without calling any witnesses.
¶ 13 After considering the evidence, the circuit court found defendant guilty of armed habitual
criminal, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon. During
the sentencing hearing that followed, the circuit court heard evidence submitted in aggravation
and mitigation and ultimately sentenced defendant to three concurrent terms of seven years’
imprisonment. The court also assessed a number of fines, fees, and costs. Defendant’s posttrial
motion was denied and this appeal followed.
¶ 14 ANALYSIS
¶ 15 I. Motion to Suppress
¶ 16 Defendant first argues that the circuit court erred in denying his motion to quash his
arrest and suppress evidence. He argues that he was the victim of an unlawful seizure because
police officers lacked reasonable suspicion that he was engaged in criminal activity at any time
during their encounter. Defendant emphasizes that mere possession of a firearm is not a crime
and contends that the officers had no reason to believe he was in unlawful possession of a
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firearm when they pulled up alongside of the vehicle in which he was seated and ordered him to
raise his hands into the air and exit the vehicle.
¶ 17 The State responds that the circuit court “properly denied defendant’s motion to quash
arrest and suppress evidence because the consensual encounter was elevated to a Terry stop
[Terry v. Ohio, 392 U.S. 1 (1968)] based on reasonable suspicion that defendant was engaged in
criminal activity.”
¶ 18 As a general rule, a circuit court’s ruling on a motion to suppress is subject to a bifurcated
two-prong standard of review. See Ornelas v. United States, 517 U.S. 690, 699 (1996); People v.
Johnson, 237 Ill. 2d 81, 88 (2010). Pursuant to this standard, a reviewing court will afford great
deference to the circuit court’s factual findings and will disregard those findings only where they
are against the manifest weight of the evidence. Johnson, 237 Ill. 2d at 88; People v. Lopez, 2013
IL App (1st) 111819, ¶ 17. The circuit court’s ultimate legal finding as to whether suppression is
warranted, however, is subject to de novo review. People v. Colyar, 2013 IL 111835, ¶ 24;
People v. Bartelt, 241 Ill. 2d 217, 226 (2011). Accordingly, “[a] court of review ‘remains free to
engage in its own assessment of the facts in relation to the issues presented and may draw its
own conclusions when deciding what relief should be granted.’ ” People v. Gherna, 203 Ill. 2d
165, 175-76 (2003) (quoting People v. Crane, 195 Ill. 2d 42, 51 (2001)). When conducting this
analysis, a reviewing court may consider the evidence presented at trial in addition to the
evidence presented during the prior suppression hearing. People v. Almond, 2015 IL 113817,
¶ 55.
¶ 19 The right to be free from unlawful searches and seizures is protected by both the federal
and state constitutions. U.S. Const., amend. IV; Ill. Const. 1970 art. I, § 6; Bartelt, 241 Ill 2d. at
225-26. “The ‘essential purpose’ of the fourth amendment is to impose a standard of
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reasonableness upon the exercise of discretion by law enforcement officers to safeguard the
privacy and security of individuals against arbitrary invasions.” People v. McDonough, 239 Ill.
2d 260, 266-67 (2010) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)). This
constitutional guarantee “applies to all seizures of the person, including seizures that involve
only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).
Not every interaction between police officers and private citizens, however, results in a seizure
within the meaning of the fourth amendment. Almond, 2015 IL 113817, ¶ 56; McDonough, 239
Ill. 2d at 268. Courts evaluating the nature and propriety of police-citizen encounters have
grouped those interactions into three tiers: (1) an arrest or detention of an individual supported
by probable cause; (2) brief investigative stops, commonly referred to as “Terry stops,”
supported by a reasonable, articulable suspicion of criminal activity; and (3) consensual
encounters involving neither coercion nor detention and do not implicate the fourth amendment.
People v. Luedemann, 222 Ill. 2d 530, 544 (2006); People v. Smith, 2016 IL App (3d) 140648,
¶ 28.
¶ 20 For purposes of fourth amendment analysis, a person is considered seized when a law
enforcement officer, “ ‘ “by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” ’ ” Luedemann, 222 Ill. 2d at 550 (quoting Florida v. Bostick,
501 U.S. 429, 434 (1991), quoting Terry, 392 U.S. 1, 19 n.16). More specifically, the relevant
inquiry to determine whether an individual seated in a parked vehicle has been seized is whether
a reasonable person in the defendant’s position would have believed that he was free to decline
the officer’s requests or otherwise terminate the encounter. Luedemann, 222 Ill. 2d at 550-51;
Smith, 2016 IL App (3d) 140648, ¶ 29; People v. Bozarth, 2015 IL App (5th) 130147, ¶ 15. Our
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supreme court has emphasized that this “test presupposes a reasonable innocent person.”
(Emphasis in original.) Luedemann, 222 Ill. 2d at 551 (citing Bostick, 501 U.S. at 438).
¶ 21 Relevant factors to consider when determining whether an individual was seized and not
involved in a consensual encounter include: (1) the threatening presence of multiple officers; (2)
the display of a weapon by an officer; (3) some physical touching of the individual’s person; and
(4) the use of language or tone of voice indicating that compliance might be compelled. United
States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J., joined by Rehnquist, J.);
Luedemann, 222 Ill. 2d at 553. “In the absence of some such evidence, otherwise inoffensive
contact between a member of the public and the police cannot, as a matter of law, amount to a
seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22. In addition to the four
aforementioned Mendenhall factors, other factors that courts have “found indicative of a seizure
of a parked vehicle are ‘boxing the car in, approaching it on all sides by many officers, pointing a
gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing
lights as a show of authority.’ ” Luedemann, 222 Ill. 2d at 557 (quoting 4 Wayne R. LaFave,
Search and Seizure § 9.4(a), at 434-35 (4th ed. 2004)).
¶ 22 It is well-established, however, that a seizure does not occur simply because a law
enforcement officer approaches and poses questions to an individual as long as that individual is
willing to listen. Gherna, 203 Ill. 2d at 178 (citing United States v. Drayton, 536 U.S. 194, 200
(2002)); see also Luedemann, 222 Ill. 2d at 551. Indeed, even where an officer has no basis for
suspecting an individual, he may nonetheless question that individual, request identification, and
seek the individual’s consent to search. Bostick, 501 U.S. at 434-35; Gherna, 203 Ill. 2d at 179;
Smith, 2016 IL App (3d) 140648, ¶ 29. Importantly, “a confrontation with a police officer is not
a seizure on the basis that the officer’s authority produces an inherent pressure to cooperate.
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Rather, *** an encounter between a police officer and a civilian ‘is a seizure only if the officer
adds to those inherent pressures by engaging in conduct significantly beyond that accepted in
social intercourse.’ ” People v. Castigilia, 394 Ill. App. 3d 355, 358 (2009) (quoting 4 Wayne R.
LaFave, Search and Seizure § 9.4(a), at 425 (4th ed. 2004)). Keeping the aforementioned factors
and standards in mind, we address defendant’s challenge to the circuit court’s denial of his
motion to suppress.
¶ 23 As a threshold matter, the parties dispute the timing of defendant’s seizure. Defendant
submits that he was subjected to an immediate seizure when Detective Amato first pulled up in
his unmarked squad car alongside of Junior’s vehicle, which was parallel parked on 52nd Street,
and began asking Junior questions. The State, in turn, categorizes the initial encounter as
consensual and posits that the encounter was only subsequently elevated to a lawful Terry stop
when officers developed reasonable suspicion that criminal activity was afoot based on the
totality of the circumstances, including “defendant’s suspicious behavior.”
¶ 24 Our analysis of the relevant factors does not support defendant’s contention that he “was
seized at the moment the officers pulled up next to the car.” The record reveals that after
Detective Amato observed Junior’s vehicle in a residential neighborhood on three occasions in a
30-40 minute period of time, he pulled his unmarked squad car alongside of the parked vehicle.
Although defendant contends that Detective Amato “blocked Junior’s car into his parallel
parking spot,” the record does not contain any evidence as to how close Detective Amato’s squad
car was to Junior’s car or whether there were other vehicles parked directly in front or in back of
Junior’s vehicle. Detective Amato, however, testified that Junior’s car not blocked in, and the
circuit court expressly found that there was “no indication that they c[ould not] leave” the scene
based on the positioning of the vehicles. Although defendant is correct that a police encounter
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with a citizen in a parked car may be classified as a seizure where a police officer positions his
car in a manner that “blocks” the parked car (see Luedemann, 222 Ill. 2d at 559), the record in
this case simply establishes that the vehicles were positioned parallel to each other, not that the
Grand Marquis was definitively blocked. Given the lack of evidence that the car in which
defendant was sitting was boxed in, we cannot agree that defendant was seized from the moment
that the officers arrived at the scene. We also reject defendant’s argument that the conversation
that ensued between Detective Amato and Junior after the officers pulled alongside of the parked
vehicle was indicative of a seizure. The record establishes that after Detective Amato stopped his
vehicle alongside Junior’s car, he conversed briefly with Junior while the windows of both
vehicles were lowered. Although Detective Amato was accompanied by two other officers at the
time, none of the officers brandished weapons or physically touched defendant or any of the
other occupants of the vehicles while he spoke to Junior. Moreover, there is no evidence that the
tone and tenor of Detective Amato’s voice when he posed several questions to Junior was
forceful or coercive. Although defendant characterizes Detective Amato’s questioning as
“relentless” and “persistent,” the record does not support that characterization. Rather, it appears
that Detective Amato simply posed two general inquiries to Junior, asking him “what he was
doing, [and] if he lived around there.” After hearing Junior’s responses, Detective Amato
testified that he then posed one follow-up question, and requested Junior to identify his “exact
address.” We reiterate that a seizure does not occur simply because a law enforcement officer
approaches and poses questions to an individual as long as that individual is willing to listen and
the officers do not convey by their words or actions that compliance with their requests is
required. Luedemann, 222 Ill. 2d at 551; Gherna, 203 Ill. 2d at 178-79. Accordingly, we find that
defendant was not subject to an immediate seizure when Detective Amato stopped his squad car
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alongside of the parked Grand Marquis and asked Junior several questions, which he was willing
to answer. Luedemann, 222 Ill. 2d at 552 (“[T]he mere approaching and questioning of a person
seated in a parked vehicle does not constitute a seizure ***.”); Gherna, 203 Ill. 2d at 179 (“[A]n
individual is not seized for fourth amendment purposes when police ask questions of that
individual, including a request for identification, so long as the officers do not convey by their
words or actions to the person being questioned that compliance with their requests is
required.”). This does not end our inquiry, however, given that “a consensual encounter will lose
its consensual nature if law enforcement officers convey a message, by means of physical force
or show of authority, that induces the individual to cooperate.” Gherna, 203 Ill. 2d at 179.
¶ 25 Indeed, defendant argues that even if the encounter did not constitute a seizure at the
outset, it evolved into a seizure when Detective Amato and his partners exited their unmarked
squad car and approached Junior’s vehicle while illuminating their flashlights. The State
concedes that defendant was ultimately seized, 2 but argues that the officers’ conduct was lawful
because the totality of the circumstances provided them with reasonable suspicion that criminal
activity was afoot, and thus their actions were lawful pursuant to the United States Supreme
Court’s landmark decision in Terry, 392 U.S. 1.
¶ 26 At the hearing on defendant’s motion to suppress, Detective Amato testified that the
decision to exit the unmarked police car and approach the parked Grand Marquis was made after
Junior acknowledged providing inaccurate information in response to his questions concerning
Junior’s address, and after observing defendant’s body language while this conversation
occurred. He explained that during the course of his short conversation with Junior, defendant,
who was sitting directly behind Junior, began to slouch further and further down in his seat until
2
Although the State acknowledges that defendant was seized, the State’s brief is not
entirely clear about the exact timing of the seizure.
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only his head was visible. After making these observations, Detective Amato and his partners
exited their vehicle and approached the parked Grand Marquis with the intention of requesting
the occupants’ identification cards. Specifically, Detective Amato and Sergeant Karczewski
walked over to the driver’s side of the vehicle while Officer Pacelli relocated to the passenger
side of the vehicle. Although the officers approached with flashlights, the use of a flashlight is
not per se coercive, especially where, as here, the police-citizen encounter took place at night
and the flashlights were simply used to illuminate the scene. See Luedemann, 222 Ill. 2d at 561-
65 (rejecting the defendant’s argument that the officer’s use of a flashlight when he approached
the parked vehicle was coercive and constituted a seizure where the officer’s use of a flashlight
was simply “because it was nighttime”). Accordingly, we do not find that the officers’ use of
flashlights as they approached the Grand Marquis transformed the consensual encounter into a
seizure.
¶ 27 Immediately after the officers approached the car, however, defendant began leaning way
from the officers toward the center of the car and used his forearm to shield his waist from view.
At that point, the officers ordered all of the occupants of the Grand Marquis to put their “hands
up.” When defendant did so in a manner that allowed him to continue to conceal his waistband,
the occupants were then ordered to exit the vehicle. We find that the positioning of the officers
around the vehicle, coupled with orders for the vehicle’s occupants to put their hands up and to
exit the vehicle, constituted a show of force and authority, which transformed the consensual
encounter to a seizure. See, e.g., Gherna, 203 Ill. 2d at 179-80 (finding that occupants of a
parked vehicle were seized when two bike officers positioned themselves on either side of a
parked car, thereby restraining the movement of the car’s occupants and preventing them from
either exiting the vehicle or driving away from the scene, and began putting questions to the
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occupants); In re Rafeal E., 2014 IL App (1st) 133027, ¶ 21 (finding that the officer’s order to
the respondent to “ ‘put his hands up” constituted “a show of authority” indicative of a seizure);
Luedemann, 222 Ill. 2d at 557 (recognizing that “ ‘the mere approach and questioning of
[persons seated within parked vehicles] does not constitute a seizure. *** [However,] the
encounter becomes a seizure if the officer orders the suspect to “freeze” or to get out of the car’ ”
(emphasis added) (quoting 4 Wayne R. LaFave, Searches & Seizures § 9.4(a), at 433 (4th ed.
2004))).
¶ 28 This does not end our inquiry, however, as we must next determine whether the seizure
was reasonable. Gherna, 203 Ill. 2d at 181 (“[O]nly those seizures which are ‘unreasonable’
violate the fourth amendment.”). In doing so, we necessarily address the State’s argument that
the seizure was reasonable under the standards set forth in Terry, 392 U.S. 1. In its Terry
decision, the Supreme Court created a limited exception to the requirement that a seizure be
supported by probable cause and held that a police officer “may conduct a brief, investigatory
stop of a citizen [unsupported by probable cause] when the officer has a reasonable, articulable
suspicion of criminal activity and such suspicion amounts to more than a mere ‘hunch.’ ”
McDonough, 239 Ill. 2d at 268 (citing Terry, 392 U.S. at 27). In articulating the reasonable
suspicion standard, the court struck a balance between the need of law enforcement officials to
exercise some flexibility when investigating potential criminal activity and the right of citizens to
be protected against unreasonable police interference in contravention of their fourth amendment
rights. Colyar, 2013 IL 111835, ¶ 33 (citing Terry, 392 U.S. at 10-12). Pursuant to the reasonable
suspicion standard, “[t]o justify a Terry stop, an officer ‘must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant [the] intrusion.’ ” People v. Magallanes, 409 Ill. App. 3d 720, 725 (2011) (quoting
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Terry, 392 U.S. at 21). Whether an investigatory stop is reasonable is judged by an objective
standard, and only the facts known to the officer at the time of the stop may be considered.
People v. Linley, 388 Ill. App. 3d 747, 749 (2009); see also People v. Sparks, 315 Ill. App. 3d
786, 792 (2000) (“The fourth amendment requires some minimal level of objective justification
for making the stop.”). As a general rule, “[a] trained police officer is given a great deal of
latitude in assessing the ‘whole picture’ based upon the totality of the circumstances, including
considerations of modes or patterns of operation of certain kinds of lawbreakers and various
practical, objective considerations in determining whether there is reasonable suspicion that a
crime has been committed.” People v. Mata, 178 Ill. App. 3d 155, 160-61 (1988) (citing United
States v. Cortez, 449 U.S. 411, 419 (1981)).
¶ 29 Here, we find that based on the totality of the circumstances, Detective Amato and his
partners had reasonable suspicion to suspect that criminal activity was afoot at the time they
initiated the seizure. At the time the seizure was initiated—when the officers surrounded the
Grand Marquis and began issuing orders to the occupants—the officers had made several
observations. 3 Detective Amato explained that he had initially pulled alongside of the vehicle
after he had noticed it in the neighborhood he was patrolling on three occasions during a short
30-40 minute period. The vehicle had been mobile on the first two viewings, but was parked
when he saw it for the third time. Upon encountering the vehicle for the third time, Detective
Amato pulled up alongside of it and issued several questions to the driver, who was responsive to
his questions. Although responsive, the driver admitted that he lied when he stated that he lived
“down the street.” During the course of this brief encounter, Detective Amato observed
3
The record rebuts defendant’s argument that he was seized “solely because [the officers]
suspected he possessed a firearm.” As such, we need not consider his argument concerning the
propriety of a hypothetical Terry stop predicated solely on an officer’s suspicion that a defendant
was in possession of a firearm.
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defendant slouch further and further down in his seat until only his head was visible. At that
point, the officers exited their unmarked car and approached the Grand Marquis. Upon his
approach to the driver’s side of the car, defendant immediately leaned toward the center of the
vehicle with his right hand inside his shirt and his right forearm covering his waist. Based on his
years of experience as a police officer, Detective Amato found defendant’s continued furtive
movements to be suspicious and became concerned with officer safety. Although defendant
correctly observes that his “actions did not lead to the inevitable conclusion that he had
committed or was committing a crime,” the Terry standard does not require an inevitable
conclusion or absolute certainty; rather, it simply requires a reasonable suspicion that criminal
activity is afoot. Terry, 392 U.S. at 27; McDonough, 239 Ill. 2d at 268. In an effort to dispel his
suspicions that criminal activity was afoot and in order to ensure officer safety, Detective Amato
ordered defendant and the other occupants of the Grand Marquis to raise their hands into the air.
When defendant did so in a manner that allowed him to continue concealing his waist, Detective
Amato’s suspicion that defendant was armed was strengthened, and he subsequently ordered
defendant and the other occupants of the Grand Marquis. The gun then fell to the ground when
defendant exited the vehicle. 4
¶ 30 Defendant emphasizes throughout his brief that mere possession of a firearm is not a
crime and that the officers lacked reasonable suspicion that his possession of the firearm was
unlawful until after the seizure occurred. Although it is true that simple possession of a firearm is
not itself a crime, the fact that the officers were not aware of defendant’s status as a convicted
felon and parolee or his lack of a FOID card, which ultimately formed the basis for the specific
criminal weapons charges filed against him in this matter, is not dispositive because defendant’s
4
Defendant concedes that there was no search; rather, “the officers did not get to search
[him] *** because the gun fell out of his pants as soon as one officer stood him up.”
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furtive behavior and repeated efforts to conceal the weapon provided the officers with reasonable
suspicion that defendant was not in lawful possession of the firearm. See Mata, 178 Ill. App. 3d
at 160 (“To accept defendant’s argument that the initial detention was invalid because the officer
did not yet know the specific crime that had been committed would be directly contrary to the
goals of Terry to encourage crime prevention and detection where there is reasonable suspicion
that a crime has been committed.”); see also Colyar, 2013 IL 111835, ¶ 49 (rejecting a
defendant’s argument that police officers are required to completely eliminate any legal
explanation for a defendant’s suspected possession of a firearm and establish that the defendant
was committing a weapons offense before investigating further during a Terry stop). Any other
result leaves police officers totally at the mercy of the citizens they encounter on a daily basis
whose behavior raises concerns that they are armed.
¶ 31 Accordingly, we find that the circuit court did not err in denying defendant’s motion to
suppress.
¶ 32 II. Aggravated Unlawful Use of a Weapon Conviction
¶ 33 Defendant next argues that his AUUW conviction must be vacated in light of our
supreme court’s decisions in People v. Aguilar, 2013 IL 112116 and People v. Burns, 2015 IL
117387, finding provisions of the state’s prior AUUW statute unconstitutional.
¶ 34 The State agrees that defendant’s AUUW conviction should be vacated but adopts a
different rationale to support this result. Specifically, the State submits that defendant’s
convictions for AUUW and AHC are based on the same physical act—his possession of a loaded
firearm—and thus violate the one-act, one-crime rule. Given that AUUW is the less serious
offense, the State agrees that defendant’s AUUW conviction should be vacated.
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¶ 35 Because reviewing courts are duty-bound to avoid the adjudication of constitutional
questions if an issue can be resolved on nonconstitutional grounds, we first address the State’s
one-act, one-crime argument. See In re E.H., 224 Ill. 2d 172, 178 (2006) (“cases should be
decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a
last resort”). Pursuant to the one-act, one-crime rule, a defendant may not be convicted of more
than one offense arising out of the same criminal act. People v. King, 66 Ill. 2d 551, 559-66
(1977); see also Almond, 2015 IL 113817, ¶ 47. For purposes of the one-act, one-crime rule, an
“act” is “any overt or outward manifestation which will support a different offense.” King, 66 Ill.
2d at 566.
¶ 36 The AHC and AUUW statutes both criminalize a defendant’s unlawful the possession of
firearm. See, e.g., 720 ILCS 5/24-1.7(a)(1) (West 2014) (“A person commits the offense of being
an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after
having been convicted a total of 2 or more times of *** a forcible felony [such as robbery and
armed robbery.]”) (Emphasis added); 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2014) (“A
person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her
person except when on his or her land or in his or her abode, legal dwelling, or fixed place of
business, or on the land or in the legal dwelling of another person as an invitee with that person’s
permission, any pistol, revolver, stun gun or taser or other firearm *** and *** the firearm, other
than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible
at the time of the offense[.]”) (Emphasis added.). Here, defendant’s convictions for AHC and
AUUW are both premised on his possession of a single loaded firearm, and as such violate the
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one-act, one-crime rule. 5 See, e.g., People v. West, 2017 IL App (1st) 143632, ¶ 25 (finding that
the defendant’s AUUW and AHC convictions violated the one-act, one-crime rule because both
convictions were based on the defendant’s possession of a single loaded handgun). Where, as
here, a one-act, one-crime violation is found, the proper remedy is to vacate the less serious
offense. In re Samantha V., 234 Ill. 2d 359, 379 (2009). AHC is a Class X felony (720 ILCS
5/24-1.7(b) (West 2014), whereas defendant’s AUUW conviction is a Class 2 felony (720 ILCS
5/24-1.6(d)(3) (West 2014)). Because defendant’s AUUW conviction is the less serious offense,
we vacate that conviction. See West, 2017 IL App (1st) 143632, ¶ 25. In light of this ruling, we
need not consider defendant’s constitutional challenge to the Illinois AUUW statute. See In re
E.H., 224 Ill. 2d at 178.
¶ 37 III. Monetary Assessments
¶ 38 Defendant next challenges the circuit court’s order imposing various fines, fees, and
costs. He first argues, and the State agrees, that he was improperly assessed a $5 electronic
citation fee (705 ILCS 105/27.3e (West 2014)), a $5 court system fee (55 ILCS 5/5-1101(a)
(West 2014)) and a $100 streetgang fine (730 ILCS 5/5-9-1.19 (West 2014)). We will address
the propriety of each of the monetary assessments in turn.
¶ 39 As a threshold matter, we note that defendant failed to challenge the propriety of his
assessments in the circuit court. Generally, a defendant’s failure to challenge a sentencing issue
in the circuit court through a contemporaneous objection and a postsentencing motion results in
5
Defendant correctly observes that his unlawful use of a weapon by a felon (UUW)
conviction was based on his possession of firearm ammunition, a separate act, and thus his
convictions for AHC and UUW do not run afoul of the one-act, one-crime rule. See Almond,
2015 IL 113817, ¶ 48 (finding that the defendant’s AHC and UUW convictions did not violate
the one-act, one-crime rule because his AHC conviction was premised on his possession of a
firearm whereas his UUW conviction was based on his possession of a firearm ammunition,
explaining: “[T]he act of possession of a firearm is materially different from the act of
possession of firearm ammunition, even if both items are possessed simultaneously”).
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forfeiture of the claim on appeal. People v. Brown, 2017 IL App (1st) 142877, ¶ 70; People v.
Reed, 2016 IL App (1st) 140498, ¶ 13. The rules of forfeiture, however, are likewise applicable
to the State. Brown, 2017 IL App (1st) 142877, ¶ 70; Reed, 2016 IL App (1st) 140498, ¶ 13.
Given that the State has not raised any argument that defendant has forfeited his challenges
concerning the propriety of his monetary assessments, we will address the merit of his claims.
Brown, 2017 IL App (1st) 142877, ¶ 70. The propriety of a fines and fees order is subject to
de novo review. People v. Bowen, 2015 IL App (1st) 132046, ¶ 60; People v. Price, 375 Ill. App.
3d 684, 697 (2007).
¶ 40 Defendant first argues that the circuit court erred in assessing a $5 electronic citation fee
pursuant to section 27.3e of the Clerks of Courts Act (705 ILCS 105/27.3e (West 2014)) because
he was not convicted of the specific offenses delineated in the statute. The State agrees that this
fee was assessed in error and should be vacated. Section 27.3e of the Clerks of Courts Act
provides for the payment of a $5 electronic citation fee by defendants “in any traffic,
misdemeanor, municipal ordinance, or conservation case.” 705 ILCS 105/27.3e (West 2014).
Defendant was not found guilty of any of the specific type of qualifying offenses enumerated in
section 27.3e of the Clerks of Courts Act. Accordingly, we direct the circuit court to vacate the
$5 electronic citation fee.
¶ 41 We also find that the $5 court system fee was similarly improperly assessed. Like the
aforementioned electronic citation fee (705 ILCS 105/27.3e (West 2014)), the court system fee
may only be imposed under certain circumstances. Specifically, section 5-1101(a) of the
Counties Code authorizes the fee when a defendant is convicted of violating the Illinois Vehicle
Code or other similar municipal ordinance (55 ILCS 5/5-1101(a) (West 2014)). Because
defendant was convicted of a criminal offense in contravention of the Criminal Code of 2012, the
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fee is inapplicable and we order it to be vacated. See, e.g., People v. Akins, 2014 IL App (1st)
093418-B, ¶ 22 (vacating the $5 court system fee where the defendant was convicted of AUUW,
a violation of the Criminal Code, and not a violation of the Illinois Vehicle Code or other similar
municipal ordinance).
¶ 42 We also agree with the parties that the $100 streetgang fine was improperly levied against
defendant. That fine, set forth in section 5-9-1.19 of the Unified Code of Corrections, provides:
“In addition to any other penalty imposed, a fine of $100 shall be imposed upon a person
convicted of any violation of the Criminal Code of 1961 or the Criminal Code of 2012
who was, at the time of the commission of the violation a streetgang member, as defined
in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act.” 730 ILCS
5/5-9-1.19 (West 2014).
Because the record contains no evidence that defendant was a streetgang member at the time of
the offense, the imposition of the $100 streetgang fine was improper. See, e.g., People v. Smith,
2015 IL App (1st) 132176, ¶ 34 (finding that the fine was improperly assessed where there was
no evidence that the defendant was a member of a gang at the time he committed the offense).
We thus order the circuit court to vacate this fine.
¶ 43 Defendant next argues that he is entitled to offset the fines imposed against him with his
statutorily granted presentence incarceration credit.
¶ 44 Section 110-14(a) of the Code of Criminal Procedure of 1963 provides:
“Any person incarcerated on a bailable offense who does not supply bail and against
whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for
each day so incarcerated upon application of the defendant. However, in no case shall the
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amount so allowed or credited exceed the amount of the fine.” (Emphases added.) 725
ILCS 5/110-14(a) (West 2014). 6
Pursuant to the plain language of the statute, however, a defendant’s presentence incarceration
credit may only be applied to fines, not fees. 725 ILCS 5/110-14(a) (West 2014); People v.
Johnson, 2011 IL 111817, ¶ 8. A charge is considered a “fee” where it assessed in order to
“ ‘recoup expenses incurred by the state,’ or to compensate the state for some expenditure
incurred in prosecuting the defendant.” People v. Graves, 235 Ill. 2d 244, 250 (2009) (quoting
People v. Jones, 223 Ill. 2d 569, 582 (2006)). A “fine,” in contrast, is “ ‘ “punitive in nature” ’
and is ‘ “a pecuniary punishment imposed as part of a sentence on a person convicted of a
criminal offense.” ’ ” Graves, 235 Ill. 2d at 250 (quoting Jones, 223 Ill. 2d at 581). The label
utilized by the legislature to describe the charge is not dispositive (Jones, 223 Ill. 2d at 583;
Brown, 2017 IL App (1st) 142877, ¶ 73); rather, to determine the true nature of the charge, the
“most important factor” to consider is “whether the charge seeks to compensate the state for any
costs incurred as a result of prosecuting the defendant” (Graves, 235 Ill. 2d at 250).
¶ 45 In this case, defendant argues and the State agrees that the $10 mental health court
assessment (55 ILCS 5/5-1101(d-5) (West 2014)), the $5 youth diversion/peer court assessment
(55 ILCS 5/5-1101(e) (West 2014)), the $5 drug court assessment (55 ILCS 5/5-1101(f) (West
2014)), the $30 Children’s Advocacy Center assessment (55 ILCS 5/5-1101(f-5) (West 2014)),
the $15 State and Conservation Police operations (State Police Operations) assessment (705
ILCS 105/27.3a (West 2014)), and the $50 court system assessment (55 ILCS 5/5-1101(c) (West
6
Defendant was arrested on July 3, 2014, and sentenced on January 28, 2015. He was
thus incarcerated on a bailable offense for 209 days prior to being sentenced. We note that
defendant correctly identifies the number of days in which was in custody prior to sentencing.
The State’s brief, however, erroneously states that defendant “was incarcerated on a bailable
offense for 608 days before sentencing.”
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2014)) are all fines subject to offset with presentence incarceration credit because they are all
punitive in nature and not designed to compensate the State for expenses incurred in defendant’s
prosecution. We agree with the parties. Reviewing courts have construed the aforementioned
assessments as fines rather than fees, which are subject to offset with presentence incarceration
credit. See, e.g., Price, 375 Ill. App. 3d at 701 (concluding that the mental health court and youth
diversion/peer court assessments were fines rather than fees); People v. Unander, 404 Ill. App.
3d 884, 891 (2010) (holding that the $5 drug court assessment was a fine subject to offset with
presentence incarceration credit); People v. Jones, 397 Ill. App. 3d 651, 660 (2009) (concluding
that the $30 Children’s Advocacy Center charge was a fine, not a fee); People v. Maxey, 2016 IL
App (1st) 130698, ¶ 140-41 (finding that the $15 State Police Operations assessment was a fine
subject to offset), vacated by No. 121137 (Ill. Nov. 22, 2017) (supervisory order); Reed, 2016 IL
App (1st) 140498, ¶ 15 (construing the $50 court system assessment as a fine subject to offset).
¶ 46 In conclusion, we find that defendant was erroneously assessed the aforementioned $5
electronic citation fee, the $5 court system fee, and the $100 streetgang fine. We further find that
the $10 mental health court assessment, the $5 youth diversion/peer court assessment, the $5
drug court assessment, the $30 Children’s Advocacy Center assessment, the $15 State Police
Operations assessment, and the $50 court system assessment may be offset by defendant’s
available presentence incarceration credit. We remand to the circuit court with instructions to
modify the fines, fees, and costs order in accordance with this disposition.
¶ 47 CONCLUSION
¶ 48 For the reasons explained above, we affirm defendant’s armed habitual criminal and
unlawful use of a weapon by a felon convictions; however, we vacate his aggravated unlawful
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use of a weapon conviction. We remand the matter to the circuit court for the limited purpose of
modifying the fines, fees, and costs order.
¶ 49 Affirmed in part, vacated in part, and remanded in part.
¶ 50 JUSTICE HYMAN, concurring in part and dissenting in part:
¶ 51 I agree with my colleagues that Gomez’s AUUW conviction should be vacated under the
one-act, one-crime doctrine, and the fines and fees remanded for modification. But I disagree
with the majority’s conclusion that Gomez and his friends were not seized until the police
ordered them out of the car. That seizure actually occurred when the police got out of their own
unmarked car and approached Junior’s car, despite the absence of specific, articulable facts that
could give rise to reasonable suspicion of criminal activity.
¶ 52 The majority uses the correct standard as to whether a seizure has occurred: would a
reasonable person have believed that he or she was free to leave or otherwise terminate the
encounter. People v. Luedemann, 222 Ill. 2d 530, 551 (2006) (citing Florida v. Bostick, 501 U.S.
429, 438 (1991)).
¶ 53 The United States Supreme Court compiled a list of several factors that might indicate a
seizure (though this is not an exhaustive list): (i) the threatening presence of several officers, (ii)
a display of weapons, (iii) physical touching, or (iv) use of language or voice indicating that
compliance is required. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of
Stewart, J., joined by Rehnquist, J.). These factors were adopted by Illinois Supreme Court in
People v. Murray, 137 Ill. 2d 382, 390 (1990). Several times, our supreme court has applied
these factors in the context of police officers communicating with individuals who are inside a
parked car. In People v. Gherna, the court held that two police officers on bicycles, one by the
driver’s door and one by the passenger’s door, had “seized” the car by their positioning and their
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questioning about possible underage drinking. 203 Ill. 2d 165, 179-81 (2003). But in People v.
Cosby, the court came to a different conclusion, holding that two officers, one on each side of the
vehicle, did not seize it. 231 Ill. 2d 262, 278 (2008).
¶ 54 Cosby rather weakly distinguished Gherna because there was no additional evidence,
other than the officers’ positions, that the officers were attempting to “box in” the vehicle.
Cosby, 231 Ill. 2d at 279-80. The weakness of this distinction is emphasized by the police
officers’ mode of transport: in Cosby, the two officers approached on foot, while the Gherna
officers were riding bicycles. There is no logical argument that two bicycles are a better method
of “boxing in” a vehicle than two officers on foot.
¶ 55 The majority states that the record “does not contain any evidence” as to whether any
other vehicles were parked behind or in front of Junior’s car. This is incorrect. Baez testified that
Junior had parallel-parked his car, so when Detective Amato parked his car alongside Junior’s,
Junior could not drive away. While Detective Amato testified that he did not block Junior’s car,
he did not remember whether other cars were parked immediately in front of or behind Junior’s
car. The trial court did not make any specific finding on this point, but merely stated that “the
officer approached the vehicle in their vehicle parallel” (which is not in dispute) and “there’s no
indication that they can’t leave” (which does not address the discrepancy between Baez’s
testimony and Amato’s failure to recollect this detail). But we are to defer to factual findings,
though this isn’t much of a finding.
¶ 56 Even if we defer to the trial court’s finding that Junior’s car was not boxed in, that car
was seized earlier than the majority concludes. Three officers approached Junior’s car, on foot.
Amato and Karczewski went to the driver’s side, and Pacelli went to the passenger’s side. This is
a more effective “boxing in” than occurred in either Gherna or Cosby. The majority rejects the
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notion that using flashlights transformed the encounter into a seizure, but the flashlights were not
necessary to make that transformation. The presence of three officers asking questions was
sufficient enough that a “reasonable person” would not have felt free to drive away or terminate
the encounter, particularly if moving the car even a few feet might have struck one of the
officers. (And given recent unfortunate encounters between motorists and approaching police
officers, even an unreasonable motorist might think that he or she does not have the freedom to
end even a consensual encounter with police.)
¶ 57 The next question is whether Detective Amato had reasonable suspicion, at this point, to
justify conducting the Terry stop. He testified that at the time he decided to get out of the car, his
suspicion was based on three facts: (i) he had seen the vehicle driving around the neighborhood
on two occasions earlier that evening; (ii) the driver (Junior) initially said that he lived “down the
street,” but then backtracked and said he lived on the other side of Pulaski; and (iii) he saw
Gomez slouching down in the back seat.
¶ 58 The first of these is an utterly ludicrous basis for reasonable suspicion. Merely driving
around a neighborhood over the course of an evening does not indicate or suggest criminal
activity. If this was so, every car used by a neighborhood resident to run a couple of errands
could be viewed by police as a predictor of criminal activity.
¶ 59 The second basis, although not ludicrous, also is insufficient in itself to suspect criminal
activity. If this was in fact a “consensual encounter” (as the majority states that it was, at this
point), then lying about, or being insufficiently clear about, one’s address is not a crime. It could
indicate criminal activity; but just as likely, it could indicate that a person had recently moved,
was staying with friends, or was homeless. The same applies to the third point, Gomez’s
“slouching.” One’s posture is not an indication of criminal activity; nor, for that matter, is visible
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discomfort with police contact. Even if this police encounter was initially “consensual,” no one
in this situation thought that Amato had pulled up alongside Junior to have a friendly chat about
the weather.
¶ 60 I believe the conclusion that the totality of the facts justifies the stop places undue
confidence on Amato’s foresight and relies on after-the-fact knowledge of the outcome, wrongly
allowing hindsight to determine the lawfulness of the stop. I would hold that the motion to
suppress should have been granted.
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