People v. Gaytan , 2021 IL App (1st) 192228-U ( 2021 )

2021 IL App (1st) 192228-UNo. 1-19-2228
Order filed June 30, 2021
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 CR 779601
)
DENNIS GAYTAN, ) Honorable
) Steven Jay Rosenblum,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court.
Justice Connors concurred in the judgment.
Justice Harris dissented.
ORDER
¶1 Held: We reversed defendant’s conviction where the trial court erred in denying
defendant’s motion to suppress where defendant was subject to an unconstitutional
warrantless search.
¶2 Following a bench trial, defendant Dennis Gaytan was convicted of aggravated unlawful
use of a weapon (AUUW) and sentenced to one year imprisonment and one year of mandatory
supervised release (MSR). On appeal, defendant contends that his motion to suppress should have
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been granted because: (1) his detention by the officer was an unconstitutional seizure, (2) the
officer’s pat-down was an unconstitutional search, and (3) the gun should have been suppressed.
He requests that this court reverse his conviction and remand for a new suppression hearing. For
the reasons that follow, we reverse the denial of defendant’s motion to suppress and because the
State has no basis for the charge without the evidence that the trial court should have suppressed,
we reverse defendant’s conviction and vacate his sentence.
¶3 BACKGROUND
¶4 1. Motion to Suppress
¶5 Prior to trial, defendant filed a motion to suppress a gun that was recovered during a pat-
down search by police on October 22, 2018. The motion stated that defendant was arrested on May
20, 2018, and charged with AUUW after a gun was found on his person. Defendant argued that:
(1) no search or arrest warrant existed that justified the search and subsequent seizure; (2) no
exigent circumstances existed that justified the warrantless search and seizure; (3) he did not
consent to the search or seizure; (4) the search and seizure was not incident to or contemporaneous
with a valid arrest; and (4) he was questioned without first being given Miranda warnings.
¶6 A hearing on defendant’s motion was held on November 8, 2018. Defendant testified at
the hearing that on May 20, 2018, at approximately 3:46 a.m., he was walking a woman home
through an alley in the 6200 block of Archer Road in Summit, Illinois. A marked police SUV
pulled up from behind them and stopped in the intersection of a cross alley, blocking their way.
An officer, who was always the one who arrested him in the past, jumped out and grabbed him.
When the officer exited his vehicle, he walked past the woman, who was in front of defendant,
and reached towards defendant’s hip, where he found a gun. Defendant stated that the officer “put
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him against the SUV, called the stop in, took the gun from out of [his] waist and then put handcuffs
on [him].” Another squad car came and took defendant away. On redirect, defendant clarified that
the officer said nothing to him when he approached defendant and the woman.
¶7 Summit police patrol lieutenant John Bragassi testified that he was a 26-year officer with
the Summit Police Department. On May 20, 2018, he was on patrol alone near 6143 South Archer
Road in Summit, in uniform and in a marked police vehicle. Lieutenant Bragassi stated that he was
in an alley near that location, which was located in a business district and had a lot of bars in that
area. He stated that some of the bars closed at 2 a.m., two closed at 4 a.m., and the location was a
high crime area, with gang activity and drugs. Lieutenant Bragassi testified that he was driving
northbound through the alley when he saw two people staggering approximately a block ahead of
him. He continued northbound to see what they were doing. When he got closer, he saw a woman
and defendant, whom he recognized and later identified in court. Lieutenant Bragassi stated that
defendant was carrying a translucent yellow cup with red liquid in it. He was unable to determine
exactly what type of liquid was in the cup, so he pulled alongside defendant and asked him if there
was liquor in the cup, and defendant responded “yes.” At no time did he activate the overhead
lights or sirens. At that point, Lieutenant Bragassi exited his vehicle to issue defendant a citation
for having open liquor in the alleyway. As he walked up to defendant, he asked whether defendant
had any weapons on him. Defendant just “stared” at him and did not answer. Lieutenant Bragassi
told defendant that he was going to pat him down for weapons and then reached towards
defendant’s waistband, at which point defendant swatted his hand away with a cell phone.
Lieutenant Bragassi told defendant not to move his hands, and then he patted defendant down.
After feeling what he believed to be a handgun, Lieutenant Bragassi lifted defendant’s shirt and a
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gun was recovered from defendant’s waistband. He stated that he could see something on
defendant’s waistband when defendant hit his hand away. The gun recovered was a .45 caliber
Taurus PT 145 with nine live rounds of ammunition. He placed defendant in handcuffs, then asked
whether defendant had a firearm owner’s identification card (FOID) or a conceal carry license
(CCL), to which defendant responded “no.” Lieutenant Bragassi stated that he handcuffed
defendant because he was alone, was trying to secure the weapon, and was concerned for his safety
in the area.1
¶8 On cross examination, Lieutenant Bragassi testified that he had known defendant for many
years, and that the liquid in the cup was tested using a portable breath test (PBT). The liquid tested
positive for alcohol but was not sent to the lab.
¶9 The trial court denied defendant’s motion to suppress, based on its conclusions that the
officer could stop, but not search, a person in a public place for a reasonable period of time when
the officer reasonably infers from the circumstances that the person is committing or about to
commit an offense. The court further found that this was what occurred when the officer pulled up
and asked defendant if there was alcohol in the cup. The court stated that if the pat-down had
occurred at that time, it would have agreed that there was no probable cause. However, the fact
that the officer asked defendant about weapons and defendant did not answer would make a
reasonable person concerned that a person may be armed. Additionally, the court noted that
defendant hit the officer’s hand away when the officer reached out to do the pat-down, which
would heighten the officer’s suspicions, and thus the pat-down was reasonable because he also
1
The record is unclear whether Lieutenant Bragassi issued defendant a citation for open alcohol
at that time.
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saw the bulge in the waistband at this time. The trial court concluded that there was no fourth
amendment violation and denied the motion to suppress.
¶ 10 Defendant subsequently filed a motion to reconsider the denial of his motion to suppress
(the copy of the motion contained in the record does not indicate the date it was filed). In his
motion to reconsider, defendant reiterated his arguments made in the initial motion to suppress and
supported them with caselaw. A hearing was held on the motion to reconsider on May 3, 2019, at
which time there was additional evidence presented that defendant was a known member of the
Latin Kings. The trial court subsequently denied the motion to reconsider.
¶ 11 2. Trial Proceedings
¶ 12 The matter proceeded to a bench trial on September 3, 2019. Lieutenant Bragassi testified
consistent with his testimony at the pretrial hearing on defendant’s motion to suppress. Lieutenant
Bragassi did not testify that he read defendant his Miranda warnings at any time. Defendant was
charged with possession of a gun on a public way and possession of open alcohol in a public place
in violation of a local ordinance. Defendant objected to testimony regarding recovery of the gun,
renewing his motion to suppress.
¶ 13 The trial court noted that the violation of the local ordinance was not part of its court file
and found no conviction for that charge. The trial court did, however, find defendant guilty of
aggravated unlawful use of a weapon, noting that the situation took place in a high crime area and
the officer was outnumbered.
¶ 14 Defendant’s posttrial motion for a not guilty verdict or new trial based on the improper
admission of the gun was denied on October 1, 2019. The trial court sentenced defendant to a one-
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year term of imprisonment and a one-year term of MSR. Defendant’s timely notice of appeal
followed.
¶ 15 DISCUSSION
¶ 16 On appeal, defendant contends that his motion to suppress should have been granted
because: (1) his detention by the officer was an unconstitutional seizure, (2) the officer’s pat-down
was an unconstitutional search, and (3) the gun should have been suppressed. He requests that this
court reverse his conviction, remand the case for a new suppression hearing and a new trial, if
necessary. The main issue raised by defendant on this appeal is whether the motion to suppress
was properly denied.
¶ 17 1. Standard of Review
¶ 18 A trial court’s ruling on a defendant’s motion to suppress evidence and quash arrest usually
involves questions of both fact and law. People v. Flunder, 2019 IL App (1st) 171635, ¶ 20. A
trial court’s factual findings are given great deference and will not be disturbed on review unless
they are against the manifest weight of the evidence. Id. at ¶ 21. At a hearing on a motion to
suppress evidence and quash arrest, the trial court acts as the factfinder and as such, is responsible
for determining the credibility of the witnesses, drawing reasonable inferences from the testimony
and other evidence and weighing the evidence presented. Id.
¶ 19 The trial court’s ruling on the ultimate question of whether the evidence must be suppressed
is a question of law that we review de novo. People v. Moss, 217 Ill. 2d 511, 518 (2005).
Additionally, the reviewing court may consider evidence adduced at trial as well as at the
suppression hearing. People v. Smith, 2015 IL App (1st) 131307, ¶ 20.
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¶ 20 The defendant bears the burden of proof on a motion to suppress evidence. People v.
Williams, 2020 IL App (1st) 172992, ¶ 8. If the defendant makes a prima facie showing that the
evidence was obtained in an illegal search or seizure, the burden shifts to the State to provide
evidence to counter the defendant’s prima facie case. Id. The ultimate burden of proof remains
with defendant. Id.¶ 21 Here, defendant made a prima facie case that the officer obtained the gun illegally by
proving that Lieutenant Bragassi stopped and searched him without a warrant. See id. at ¶ 9;
People v. Cregan, 2014 IL 113600, ¶ 26. The burden then shifted to the State to present evidence
proving the search was valid.
¶ 22 2. Fourth Amendment
¶ 23 Both the fourth amendment of the United States Constitution and the Illinois Constitution
of 1970 guarantee the “right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const., amend. IV, Ill.Const.1970, art. I, § 6.
The essential purpose of the fourth amendment is to impose a standard of reasonableness on the
exercise of discretion by police to safeguard the privacy and security of people against arbitrary
invasions. Smith, 2015 IL App (1st) 131307, ¶ 21; See also Delaware v. Prouse, 440 U.S. 648,
653-54 (1979); People v. Colyar, 2013 IL 111835, ¶ 31; People v. McDonald, 239 Ill. 2d 260, 266
(2010). Reasonableness is measured in objective terms by examining the totality of the
circumstances. Moss, 217 Ill. 2d at 518 (citing Ohio v. Robinette, 519 U.S. 33, 39 (1996)).
¶ 24 It is well settled that not every encounter between the police and a private citizen results in
a seizure. Smith, 2015 IL App (1st) 131307, ¶ 22. Courts have divided police-citizen encounters
into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative
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detentions, or “Terry stops,” which must be supported by a reasonable, articulable suspicion of
criminal activity; and (3) encounters that involve no coercion or detention and thus do not implicate
fourth amendment concerns. Id. In Terry, the Supreme Court held that an officer may, within the
parameters of the fourth amendment, conduct a brief, investigatory stop of a citizen when the
officer has a reasonable, articulable suspicion of criminal activity, and such suspicion amounts to
more than a mere “hunch.” Terry v. Ohio, 392 U.S. 1, 27 (1968); People v. Gherna, 203 Ill. 2d
165, 177 (2003). Additionally, under Terry, the reasonableness of police action taken during an
investigative detention involves a dual inquiry: (1) whether the officer’s action was justified at its
inception; and (2) whether the officer’s action was reasonably related in scope to the circumstances
which justified the interference in the first place. Terry, 392 U.S. at 21-22; People v. Baldwin, 388
Ill. App. 3d 1028, 1031-32 (2009). The Terry standard extends to individuals who are walking on
public streets. Terry, 392 U.S. at 9.
¶ 25 3. Unconstitutional Detention
¶ 26 Turning our attention to the case at bar, our review of the State’s evidence presented at the
suppression hearing yields the conclusion that the encounter between defendant and Lieutenant
Bragassi should be examined as a Terry stop. As noted above, a Terry stop is a brief, investigatory
stop that must be supported by a reasonable, articulable suspicion of criminal activity. Smith, 2015
IL App (1st) 131307, ¶ 22.
¶ 27 Here, Lieutenant Bragassi testified that he saw two people walking in the alley and they
were staggering. He also testified that the area was a business district with some bars located there,
at least two of which were open until 4 a.m. We find it to be a reasonable presumption that people
who were patrons of those local bars would have consumed alcohol and could be staggering while
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walking away from the area. However, staggering while walking down a public way is not, in and
of itself, a crime; nor, does it create a reasonable suspicion that a crime had been committed, was
about to be committed, or justified further inquiry by police. See, e.g. People v. Bloxton, 2020 IL
App (1st) 181216, ¶ 21-22.
¶ 28 By his own testimony, both at the suppression hearing and at trial, Lieutenant Bragassi
implied that the people were “staggering” as if they had been drinking, perhaps from one of the
local bars. He also admitted that he decided to follow the people to “see what they were doing.”
The act of staggering near a bar would not lead a reasonable person to believe that they were in
the act of or about to commit a crime. Thus, the fact that they were staggering, did not justify the
officer’s decision to follow them in the first place. Presence in a high crime area, by itself, is an
insufficient basis for a reasonable suspicion. People v. Moorman, 369 Ill. App. 3d 187, 193 (2006).
Contrary to the dissent’s view, we believe that this type of police activity is precisely the focus of
the fourth amendment- the right of people to be free from unreasonable police intrusion as they
carry out their daily activities. See Smith, 2015 IL App (1st) 131307, ¶ 21.
¶ 29 After deciding to follow the two people for no reason other than that they were staggering
while walking down the alley, Lieutenant Bragassi got closer and recognized defendant who was
holding a cup of unidentifiable liquid, so he stopped them. To be clear, Lieutenant Bragassi had
no reasonable suspicion that any criminal activity was afoot when he first decided to follow them;
it was only after deciding to follow them and seeing the cup of liquid that he was able to justify an
inquiry into the contents of the cup in defendant’s hand. While this would be a justifiable Terry
stop if this were Lieutenant Bragassi’s initial observation when he first saw defendant and the
woman walking, we cannot find that to be the case where it appears that he followed defendant
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and his companion in the hopes of catching some criminal activity. We note additionally that there
was also evidence presented before the trial court that Lieutenant Bragassi and defendant had
multiple previous encounters, at least some of which ended in defendant’s arrest, which may have
influenced the decision to conduct the stop.
¶ 30 At oral argument, the State argued that this was a consensual encounter, supported by the
Mendenhall factors. We disagree. In United States v. Mendenhall, 446 U.S. 544, 553 (1980), the
Supreme Court stated that “a person is seized when, by means of physical force or a show of
authority, the person’s freedom of movement is restrained.” The Court went on to state:
“We conclude that a person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed he was not free to leave. Examples of
circumstances that might indicate a seizure, even where the person did not attempt to leave,
would be the threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” Id. at 554.
Illinois adopted the Mendenhall factors. See People v. Crosby, 231 Ill. 2d 362, 274 (2008). While
the precise examples provided in Mendenhall were not present in the case at bar, we agree with
the argument made by defendant’s appellate counsel at oral argument, namely, that defendant and
his companion, who were walking down an alley at 3:45 a.m. being followed by an officer in a
marked police car that cut them off, would not feel free to leave, and were in fact seized.
¶ 31 Accordingly, we find that, under the specific circumstances of this case, this was an
unconstitutional detention which constituted an unreasonable seizure of defendant’s person.
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People v. Creagh, 214 Ill. App. 3d 744, 747 (1991) (the fourth amendment requires that a seizure
be reasonable, and the reasonableness of a seizure depends on a balancing of the public’s interest
and the individual’s right to personal security free from arbitrary interference by police officers).
¶ 32 4. Unconstitutional Search
¶ 33 Whether an investigatory stop is valid is a separate question from whether a search for
weapons is valid. People v. Galvin, 127 Ill. 2d 153, 163 (1989). The fact that an officer has reason
to stop a person does not automatically justify the further intrusion of a search for weapons. Id.Rather, in order to validly conduct a weapons frisk under Terry, the officer must have reason to
believe that “the individual whose suspicious behavior he is investigating at close range is armed
and presently dangerous to the officer or to others.” Terry, 392 U.S. at 24. The sole justification
for this type of search is the protection of the police officer and others in the vicinity, not to gather
evidence. Minnesota v. Dickerson, 508 U.S. 366, 373 (1993); Galvin, 127 Ill. 2d at 170. The
scope of such search is therefore strictly limited to a search for weapons. Galvan, 127 Ill. 2d at
170.
¶ 34 The validity of a frisk conducted during a valid investigatory stop is assessed by an
objective standard. Terry, 392 U.S. at 21-22. The question is whether a reasonably prudent person
in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Terry, 392 U.S. at 27. The officer conducting the frisk must be able to point to specific, articulable
facts which, when taken together with natural inferences, reasonably warrant the intrusion. Terry,
392 U.S. at 21. These facts need not meet probable cause standards but must constitute more than
a mere hunch. People v. Flowers, 179 Ill. 2d 257, 264 (1997).
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¶ 35 According to Lieutenant Bragassi’s testimony, once he inquired about the contents of the
cup and defendant indicated that it was alcohol, he stopped and exited his vehicle to issue
defendant a citation for having open alcohol on a public way. Assuming, arguendo, that the stop
was a valid Terry stop from the beginning, the purpose of the investigative stop ended once
Lieutenant Bragassi was preparing to issue defendant a citation. Knowles v. Iowa, 525 U.S. 113,
118 (1998). See also People v. Gherna, 203 Ill. 2d 165, 183 (2003). However, Lieutenant Bragassi
then asked whether defendant had any weapons on him and indicated that he was going to do a
pat-down search of defendant. Questioning defendant about the presence of weapons was
completely unrelated to the observed violation, which resulted from defendant’s admission to
possession of open alcohol on a public way and provided the basis for the stop. See People v.
Bunch, 207 Ill. 2d 7, 17 (2003); People v. Parra, 352 Ill. App. 3d 584, 587 (2004).
¶ 36 A valid Terry stop can be broadened into an investigatory detention if the officer discovers
specific, articulable facts which give rise to a reasonable suspicion that the defendant has
committed or is about to commit a crime. People v. Baldwin, 386 Ill. App. 3d 1028, 1035 (2009).
Here, the reason articulated for justification of the search was the officer’s safety and the “area.”
¶ 37 A warrantless search is unreasonable unless the officer presents specific, articulable facts
which would cause a reasonable person to fear for his safety or the safety of others. However, the
testimony by an officer that he subjectively feared for his safety, standing alone, does not satisfy
this requirement. Smith, 2015 IL App (1st) 131307, ¶ 22. Here, Lieutenant Bragassi did not testify
that he had any reasonable suspicion that defendant was armed, although he stated that he wanted
to do the pat down because of the area they were located in, and he was alone. However, the record
reflects that at no point did Lieutenant Bragassi radio for assistance between the time he stopped
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defendant and the time of the pat down. Additionally, it should be noted that at no time did
Lieutenant Bragassi question the woman or attempt to search her. Moreover, there was no evidence
that defendant attempted to avoid Lieutenant Bragassi when he drove up alongside him. To the
contrary, defendant was cooperative and responded truthfully that there was alcohol in the cup.
Simply put, there was no evidence presented to support any suggestion that Lieutenant Bragassi
was either in danger or believed himself to be in danger when he searched defendant. See People
v. Surles, 2011 IL App (1st) 1000068, ¶ 35 (a police officer may perform a protective pat-down
search where, after making a lawful stop, the officer has a reasonable articulable suspicion that he
or another is in danger of attack because the defendant is armed and dangerous). Further, there
was no testimony that Lieutenant Bragassi believed that defendant had committed any crime
beyond possession of open alcohol on a public way. Defendant’s mere presence in a high-crime
area, alone, does not rise to the level of reasonable suspicion. Surles, 2011 IL App (1st) 1000068,
¶ 35.
¶ 38 In Knowles, the Supreme Court found that the threat to officer safety from issuing a traffic
citation was a good deal less than in the case of a custodial arrest, and further that the need to
discover and preserve evidence does not exist in a traffic stop, for once the defendant was stopped
for speeding and issued a citation, all evidence necessary to prosecute that offense had been
obtained. Knowles, 525 U.S. at 118.
¶ 39 The same conclusion is warranted here where there was no articulable threat to Lieutenant
Bragassi’s safety nor does the record demonstrate that a need existed to preserve additional
evidence for defendant’s possession of alcohol on a public way. As such, we conclude that the
search was unconstitutional and that the product of the search, i.e., the gun, should have been
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suppressed as “fruit of the poisonous tree.” Bloxton, 2020 IL App (1st) 181216, ¶ 28 (citing People
v. Aguilar, 2013 IL 112116, ¶ 33). Under that doctrine, the fourth amendment violation search is
deemed the poisonous tree and any evidence obtained by exploiting that violation is considered its
fruit and is thereby subject to suppression. Bloxton, 2020 IL App (1st) 181216, ¶ 29.
¶ 40 We also reject the argument that the search was warranted once the bulge in defendant’s
waistband was discovered; the presence of a bulge in a defendant’s clothing standing alone is
insufficient to warrant a search. Surles, 2011 IL App (1st) 1000068, ¶ 40. Similarly, the warrantless
search and recovery of the gun cannot be justified by defendant’s failure to have a FOID card or
CCL. While Lieutenant Bragassi later learned that defendant did not have a FOID card or CCL,
that was not information known to him when he first observed defendant with the gun and was
gleaned only after he had already handcuffed defendant. Lieutenant Bragassi did not testify to any
articulable fact that gave rise to suspicion that defendant was committing or had committed a gun-
related crime. See People v. Horton, 2019 IL App (1st) 142019-B, ¶ 61. Additionally, it bears
mentioning that solely possessing a gun no longer automatically amounts to criminal conduct. See
Aguilar, 2013 IL 112116, ¶ 20; People v. Thomas, 2019 IL App (1st) 170474, ¶ 40.
¶ 41 We conclude that the gun was recovered after an unlawful warrantless search of defendant,
and conclude, based on the facts presented in this case, that the trial court’s decision to deny
defendant’s motion to suppress was against the manifest weight of the evidence. We find that the
motion to suppress should have been granted. Further, without the seized evidence, the court had
no basis for finding defendant guilty of aggravated unlawful use of a weapon. Accordingly, we
reverse defendant’s conviction without remand. Williams, 2020 IL App (1st) 172992, ¶ 12.
¶ 42 CONCLUSION
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¶ 43 We reverse the denial of defendant’s motion to suppress the evidence recovered from the
unconstitutional search of defendant. Without the suppressed evidence, the State cannot prove
defendant guilty of aggravated unlawful use of a weapon. Accordingly, we reverse defendant’s
conviction and vacate his sentence.
¶ 44 Reversed and sentence vacated.
¶ 45 JUSTICE HARRIS, dissenting:
¶ 46 I respectfully disagree with my colleagues that the trial court’s decision to deny defendant’s
motion to suppress was against the manifest weight of the evidence or otherwise erroneous. I
therefore would affirm defendant’s conviction.
¶ 47 According to Lieutenant Bragassi’s hearing testimony, he was in an alley in a high-crime
area with gang and drug activity, in a business district with many bars, at about 3:45 a.m. when
some bars in that area had already closed and others were going to close at 4 a.m. He followed two
people he saw staggering down the alley, one being defendant. The majority states that “the fact
that they were staggering, did not justify the officer’s decision to follow them in the first place.”
Supra ¶ 28. However, I am unaware of any case law holding that following someone along a public
way is either a search or seizure constitutionally, as it is neither logically. While reasonable
articulable suspicion is required for a Terry stop, following someone is clearly not stopping them.
¶ 48 When Bragassi got closer to the two staggering people, he saw that one of them was
defendant, who was carrying a translucent yellow cup with red liquid in it. While Bragassi admitted
to not knowing what liquid was in the cup, a reasonable person could suspect under the
circumstances – a staggering person holding an open cup of liquid in an area with many bars, in
the early-morning hours when some bars had closed, and others were still open – that the ordinance
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against open containers of alcohol was being violated. I would find that Bragassi had reasonable
suspicion and could conduct a Terry stop to either confirm or refute that suspicion.
¶ 49 The majority is arguably correct that “Bragassi had no reasonable suspicion that any
criminal activity was afoot when he first decided to follow them; it was only after deciding to
follow them and seeing the cup of liquid that he was able to justify an inquiry into the contents of
the cup in defendant’s hand.” Supra ¶ 29. However, what the majority says next does not follow
from that: “While this would be a justifiable Terry stop if this were Lieutenant Bragassi’s initial
observation when he first saw defendant and the woman walking, we cannot find that to be the
case where it appears that he followed defendant and his companion in the hopes of catching some
criminal activity.” Id. Instead, I would state that Bragassi suspected something untoward but did
not exercise his police powers by stopping defendant until the final factor of the open cup of liquid
was added to the aforesaid circumstances and a vague or inchoate suspicion ripened into a
reasonable and articulable suspicion. As I stated above, following someone is not a stop or seizure.
The majority seems to require that reasonable suspicion must spring immediately into existence
and to hold that a Terry stop is improper if an officer went through a stage of inarticulable suspicion
even if he or she did not perform a stop until he or she had a reasonable and articulable suspicion.
¶ 50 When Bragassi stopped next to defendant and asked him if there was liquor in the cup, he
replied affirmatively and Bragassi exited his vehicle to issue defendant a citation for having open
liquor. The majority states that “[a]ssuming, arguendo, that the stop was a valid Terry stop from
the beginning, the purpose of the investigative stop ended once Lieutenant Bragassi was preparing
to issue defendant a citation.” Supra ¶ 35. The Terry stop was indeed over, because reasonable
suspicion had ripened with defendant’s reply into probable cause for an ordinance violation.
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However, the majority cites a case (Gherna, 203 Ill. 2d at 183) where the reasonable suspicion
underlying the Terry stop had been dispelled, the stop should have ended at that point, and further
investigation or detention was unduly prolonging the stop. In stark contrast to Gherna, it was quite
proper that the stop of defendant had not ended with his answer because Bragassi was about to
write him a citation for an admitted ordinance violation.
¶ 51 Bragassi testified that as he walked up to defendant, he asked whether defendant had any
weapons on him. When defendant stared at him and did not answer, Bragassi resolved to frisk him.
The majority states that Bragassi “asked whether defendant had any weapons on him and indicated
that he was going to do a pat-down search of defendant” (supra ¶ 35) but this conflates two distinct
events. I would find that Bragassi had articulable facts that would cause a reasonable person under
the circumstances to fear for his safety when he asked defendant if he was armed: he was alone in
a dark alley in a high-crime area, where bars were going to close soon and disgorge their late-night
drinkers, with two staggering people including a person carrying an open alcoholic drink who was
about to be ticketed for an ordinance violation. Bragassi decided to address his concerns in a
relatively inobtrusive manner by asking defendant if he was armed, but defendant did not allay or
dispel those concerns when he stared at Bragassi and did not reply either that he had or did not
have a weapon. I would conclude that Bragassi had reasonable suspicion to support a frisk or pat
down of defendant when he stated that he would frisk him and reached to do so. Defendant merely
added to the existing grounds for a frisk when he swatted Bragassi’s hand away before Bragassi
finally frisked him and found the gun.
¶ 52 Lastly, once Bragassi found the gun, he handcuffed defendant, asked him if he had a FOID
card or CCL, and he replied that he did not. The majority states correctly that “[w]hile Lieutenant
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Bragassi later learned that defendant did not have a FOID card or CCL, that was not information
known to him when he first observed defendant with the gun and was gleaned only after he had
already handcuffed defendant.” Supra ¶ 40. However, again the majority’s next remark does not
follow from that fact: “Bragassi did not testify to any articulable fact that gave rise to suspicion
that defendant was committing or had committed a gun-related crime.” Id. Police are not required
to eliminate all legal explanations for possessing a firearm before conducting a Terry investigation
into a possible weapons offense, and handcuffing does not necessarily render a Terry stop an arrest.
People v. Colyar, 2013 IL 111835, ¶ 46; People v. Hood, 2019 IL App (1st) 162194, ¶ 71. In sum,
I conclude that Bragassi in finding a firearm had reasonable suspicion to support his Terry
investigation into whether defendant was committing a weapons offense, and defendant confirmed
Bragassi’s suspicion by answering that he had no FOID card or CCL.
¶ 53 I find no error in the court’s denial of defendant’s motion to suppress. I would therefore
affirm defendant’s conviction.
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