People v. Webb , 2020 IL App (1st) 180110 ( 2020 )

2020 IL App (1st) 180110FIRST DIVISION
June 1, 2020
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No. 10 CR 1705001
)
COREY WEBB, ) Honorable Thomas R. Davy and
) Honorable William B. Raines,
Defendant-Appellant. ) Judges Presiding
PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Justice Pierce concurred in the judgment and opinion.
Justice Hyman dissented, with opinion.
OPINION
¶1 Following a jury trial, defendant was found guilty of unlawful possession of a weapon by
a street gang member and aggravated unlawful use of a weapon. He appeals those convictions,
arguing that the trial court erred when it denied his motion to quash arrest and suppress evidence,
that the State did not prove that he was a member of a street gang, and that the trial court erred
when it limited the trial testimony about the Independent Police Review Authority’s investigation
surrounding defendant’s arrest. We hold that the trial court did not err when it denied defendant’s
motion to quash arrest and suppress evidence and did not abuse its discretion when it limited the
scope of the testimony about the investigation into the police officers’ conduct in making the arrest.
No. 1-18-0110
We, however, hold that the evidence was insufficient to prove defendant’s membership in a street
gang. Accordingly, we affirm in part, reverse in part, and remand for resentencing.
¶2 I. BACKGROUND
¶3 On September 10, 2010, at approximately 11:30 p.m., Chicago police officers were on
patrol when they saw a large gathering of 30 to 40 people gathered in the street and on the sidewalk
making a lot of noise. Officer Dennis Huberts and his partner arrived at the scene on the east side
of the crowd, and two other officers arrived at the scene on the opposite side of the crowd. The
four officers exited their vehicles with plans to disperse the crowd with the officers converging on
the crowd from different directions.
¶4 The crowd was beginning to disperse, primarily toward the north and the west, when
Officer Huberts saw defendant begin running eastward toward him and his partner. Officer Huberts
observed defendant looking over his shoulder at the other set of police officers as he fled. Officer
Huberts also saw that defendant was clutching something near his waistband as he was running.
Officer Huberts announced his office and told defendant to stop. Defendant did not comply.
¶5 Officer Huberts chased defendant and put his hands on defendant’s shoulders to try to stop
him. Defendant continued to run and pull away from Officer Huberts, so Officer Huberts
performed an “emergency takedown,” grabbing defendant near his collar area and pulling him to
the ground. While on the ground, defendant was resisting Officer Huberts’s attempts to detain him,
and defendant continued to stiffen his body and would not remove his hands from his waist area
while Officer Huberts attempted to gain control over defendant on the ground. Officer Huberts
struck defendant in the head multiple times in an attempt to secure defendant’s compliance. After
striking defendant, Officer Huberts and his partner were able to get control of defendant’s arms
and hands, and Officer Huberts went to the area that defendant had been holding and felt a weapon
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in defendant’s waistband. Once defendant’s hands were under control of the officers, Officer
Huberts went and retrieved a Desert Eagle 9-millimeter handgun from the center of defendant’s
waistband. The officers then handcuffed defendant. All of the events took place in a matter of
seconds.
¶6 Defendant was arrested and eventually charged with unlawful possession of a weapon by
a street gang member and aggravated unlawful use of a weapon. While at the police station,
defendant told the officers that he is a member of the Black P. Stones and that he had been a
member of that gang for as long as he could remember. Defendant further stated that he got the
gun from one of his fellow gang members. An assistant state’s attorney memorialized defendant’s
statement and authorized the charges against him. After being at the police station for a period,
defendant was transported by ambulance to the hospital. He underwent surgery for a broken jaw.
¶7 As the case against defendant progressed, defendant filed a motion to quash arrest and
suppress evidence. In that motion, defendant argued that he was doing nothing wrong or illegal
before the police officers ran up to him and threw him on the ground. Defendant stated that the
officers began to punch and kick him and that they then searched him. He argued that any statement
he allegedly made or any evidence uncovered during the search should be suppressed as being the
product of an unlawful search and seizure. The trial court denied defendant’s motion.
¶8 At trial, the police officers’ testimony was consistent with the narrative set forth above.
However, defendant himself and two other eyewitnesses testified in defendant’s defense. All three
of these witnesses testified that the officers essentially targeted defendant and searched him for no
reason. These witnesses also testified that the officers treated defendant harshly, including that
they kicked him in the face, resulting in defendant ending up on the ground, spitting up blood.
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These witnesses testified that defendant was doing nothing wrong and that the officers just came
at him for no reason. They testified that defendant did not have a weapon.
¶9 The jury found defendant guilty of both unlawful possession of a weapon by a street gang
member and aggravated unlawful use of a weapon. The trial court sentenced defendant to five
years’ imprisonment. He now appeals his convictions.
¶ 10 II. ANALYSIS
¶ 11 Defendant argues that (1) his motion to quash arrest and suppress evidence should have
been granted, (2) the evidence was insufficient to prove that the Black P. Stones meet the statutory
definition of a “streetgang,” (3) the trial court erred when it denied his motion for a directed finding
as to whether there was sufficient evidence that the Black P. Stones met the statutory definition of
a streetgang, and (4) the trial court improperly limited the testimony about the Independent Police
Review Authority’s investigation launched into the circumstances surrounding defendant’s arrest,
namely that the officers used excessive force in arresting defendant. We agree with defendant on
points two and three and we reject his arguments on points one and four.
¶ 12 A. Motion to Quash Arrest and Suppress Evidence
¶ 13 Defendant argues that the trial court erred when it denied his motion to quash arrest and
suppress evidence. Defendant contends that his fourth amendment rights were violated where the
officers on scene did not see him do anything illegal or improper before they violently detained
him. Under the circumstances, defendant maintains that when he was tackled and restrained by the
officers it constituted an impermissible arrest, not a lawful Terry stop, because the officers
restrained him with physical force before they had made any observations that could constitute
probable cause or even a reasonable suspicion of criminal activity.
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¶ 14 Before a police officer may arrest an individual, the officer must have probable cause that
the person committed or is committing a crime. People v. Sledge, 92 Ill. App. 3d 1051, 1058
(1981). In contrast, a police officer may briefly detain an individual and perform a protective pat
down when the officer has a reasonable suspicion that the individual is engaged in criminal activity
and for purposes of officer safety. Terry v. Ohio, 392 U.S. 1, 30-31 (1968).
¶ 15 Officer Huberts testified that he saw defendant running from the crowd and clutching his
waistband. Defendant was running toward Officer Huberts and his partner. Officer Huberts
believed that the manner in which defendant was grabbing near his waistband was indicative of
defendant having a gun concealed in that area. The officers’ testimony portrayed the scene as
somewhat chaotic, with a large group of individuals creating a noise disturbance and then
scattering to disperse when the police arrived. The officers encountered defendant in a high crime
area at approximately 11:30 at night. Defendant fled from one set of officers, but that meant that
he was running toward Officer Huberts and his partner while he was fixated on his waistband,
leading the officers to suspect that defendant was armed while running in their direction. The
officers reasonably perceived an officer safety issue.
¶ 16 The officers had a reasonable suspicion that defendant was engaged in criminal activity
when he ran from the crowd, grabbing near his waist, in a manner that suggested he was carrying
a weapon. The officers provided, both at trial and at the hearing on the motion to suppress evidence,
a reasonable basis upon which they believed defendant was armed. Defendant was acting far
different than the others in the crowd that were dispersing, and his nervous and evasive behavior
culminated in flight. In the officers’ experience, defendant’s fixation on his waistband area in a
manner suggesting he had a weapon concealed there as he fled indicated that he was armed. The
officers in this case had seen dozens of people carrying weapons in the past who conducted
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themselves as defendant did here. See Terry, 392 U.S. at 27 (“in determining whether the officer
acted reasonably in such circumstances, due weight must be given *** to the specific reasonable
inferences which he is entitled to draw from the facts in light of his experience”).
¶ 17 When the officers attempted to detain defendant in furtherance of the above-established
reasonable suspicion of criminal activity, defendant resisted their attempts to effectuate a Terry
stop. He continued to run from Officer Huberts after Officer Huberts announced his office and told
defendant to stop. Then, when Officer Huberts put his hands on defendant’s shoulders to try to
stop him, defendant tried to pull away. It was at that point that Officer Huberts elevated the level
of force, by tackling defendant, to a level that would ordinarily only be permissible for an arrest.
¶ 18 There are two inferences that can be drawn regarding the reason that defendant was
grabbing near his waist. One, that he was wearing baggy pants and was grabbing near his waist to
hold up his pants as he ran or, two, that he was grabbing near his waist because he had a firearm
concealed there. Our standard of review requires us to draw that inference in the State’s favor.
Moreover, there is no statement anywhere in the record that defendant was grabbing in his waist
area to keep his pants from falling down as he ran. To the contrary, defendant and the witnesses
who testified on his behalf testified that he never even ran from the police. The jury disbelieved
them. Any leap to the idea that defendant could have been holding his pants up to stop them from
falling down is in derogation of our role on appeal and is not supported by the evidence in any
way.
¶ 19 Before the police have acquired a reasonable suspicion of criminal activity, an individual
has the right to avoid an encounter with police. People v. Timmsen, 2016 IL 118181, ¶ 10.
However, when officers have acquired a reasonable suspicion of criminal activity and attempt to
detain a suspect under Terry, that suspect is no longer free to leave or voluntarily terminate an
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encounter with the police. People v. Maxey, 2011 IL App (1st) 100011, ¶ 60 (under Terry, a police
officer is specifically permitted to briefly detain an individual to investigate the possibility of
criminal behavior absent probable cause, and during the course of a Terry stop, a person is “no
more free to leave than if he were placed under a full arrest” (internal quotation marks omitted)).
A defendant is required to submit to the Terry stop, so long as it is lawful at its inception, i.e. that
the officers indeed had a reasonable suspicion of criminal activity sufficient to support the brief
detention at its outset. If a defendant fails to submit to a lawful attempt at effectuating a Terry stop,
the officers have the right to take steps to force compliance with their directives in order to
effectuate a Terry investigative stop in a safe and effective manner. See People v. Johnson, 387
Ill. App. 3d 780, 791 (2009); People v. Eyler, 2019 IL App (4th) 170064, ¶ 23.
¶ 20 Here, when Officer Huberts had acquired a level of knowledge sufficient to constitute a
reasonable suspicion of criminal activity, he told defendant to stop, but defendant did not heed the
instructions. Instead, defendant continued his flight. A person is not seized for purposes of the
fourth amendment when the person does not yield to the officer’s show of authority. California v.
Hodari D., 499 U.S. 621, 625-26 (1991). When Officer Huberts tried to force defendant to stop by
putting his hands on defendant’s shoulders, defendant still refused to submit to the officer’s then-
legal authority to force compliance. Because of defendant’s continued noncompliance, Officer
Huberts was entitled to take further steps to detain defendant involuntarily. While an officer would
surely not have authority to tackle an individual that was submitting to a Terry stop as directed,
defendant’s refusal to submit to a lawful Terry stop made the circumstances such that Officer
Huberts was entitled to take steps to force defendant’s compliance with the officers’ commands.
The officers had reasonable suspicion of criminal activity to support a Terry stop, and when
defendant failed to comply, the officer’s actions in tackling defendant and restraining him did not
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violate his fourth amendment rights. 1 The trial court did not err when it denied defendant’s motion
to quash arrest and suppress evidence.
¶ 21 B. Sufficiency of the Evidence as to Defendant’s Membership in a Street Gang
¶ 22 Defendant argues that the evidence was insufficient to support a conviction for unlawful
possession of a firearm by a street gang member because the State failed to prove the essential
elements of that offense beyond a reasonable doubt. The fourteenth amendment to the United
States Constitution requires that the government prove each element of a crime beyond a
reasonable doubt before a person may be convicted of a crime. In re Winship, 397 U.S. 358, 363-
64 (1970). On appeal, we must determine whether, after viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. People v. Ross, 229 Ill. 2d 255, 272 (2008). While we give great
deference to a fact finder when we review for the sufficiency of the evidence, our constitutional
responsibility requires that we scrutinize the evidence and determine whether the State proved
enough at trial to meet its constitutional burden. People v. Hernandez, 312 Ill. App. 3d 1032, 1037
(2000).
¶ 23 To prove that a defendant committed the offense of unlawful possession of a firearm by a
street gang member, the State must prove that the defendant knowingly possessed a firearm in
public and without a valid Firearm Owner’s Identification Card and that he is a member of a street
gang. 720 ILCS 5/24-1.8(a)(1) (West 2010). For purposes of that offense, “streetgang” or “gang”
has the meaning ascribed to it in section 10 of the Illinois Streetgang Terrorism Omnibus
1
After this case was set for oral argument, defendant filed a motion seeking leave to cite
additional authority. In particular, defendant referred us to our decision in People v. Horton, 2019 IL App
(1st) 142019-B, and asked us to consider that opinion in resolving this appeal. We granted defendant to
cite the additional authority and have taken Horton into account in arriving at this decision.
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Prevention Act (740 ILCS 147/10 (West 2010)). The Illinois Streetgang Terrorism Omnibus
Prevention Act defines “streetgang” as “any combination, confederation, alliance, network,
conspiracy, understanding, or other similar conjoining, in law or in fact, of 3 or more persons with
an established hierarchy that, through its membership or through the agency of any member
engages in a course or pattern of criminal activity.” 740 ILCS 147/10 (West 2010).
¶ 24 Defendant contends that the State failed to prove at his trial that the Black P. Stones is a
“streetgang” under the requisite definition. Defendant moved for a directed finding on this issue
at the close of the State’s case in chief and he argues on appeal that his motion should have been
granted. The parties both refer us to People v. Murray, 2019 IL 123289, ¶¶ 36, 51, 2 in which the
Illinois Supreme Court addressed the applicable statutes and held that the State was required to
introduce specific evidence about the course or pattern of criminal activity to prove that the
defendant was a member of a street gang.
¶ 25 The State concedes that the outcome in this case is controlled by Murray. Accordingly, the
State acknowledges that we should grant defendant the same relief the supreme court granted in
that case: reversing defendant’s conviction for unlawful possession of a firearm by a street gang
member. See Murray, 2019 IL 123289, ¶ 53. We agree that the proper result is a reversal of
defendant’s conviction for unlawful possession of a firearm by a street gang member.
¶ 26 C. Admissibility of Evidence Concerning the Independent Police Review
Authority Investigation
¶ 27 Defendant argues that the trial court erred when it granted the State’s motion in limine
prohibiting defendant from eliciting testimony about an Independent Police Review Authority
(IPRA) investigation into the circumstances surrounding defendant’s arrest. Defendant contends
2
At the time defendant filed his brief, the Illinois Supreme Court had not yet filed the opinion in
Murray. However, before the State filed its response brief, the supreme court had decided the case.
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that the trial court’s limitation on trial testimony about the IPRA investigation infringed on his
constitutional right to confront the witnesses against him. Defendant argues that evidence about
the IPRA investigation was relevant to his defense and that it should have been admitted for the
purpose of showing the officers’ bias as well as their motive to testify falsely at trial.
¶ 28 In ruling on the State’s motion in limine to forbid defendant from introducing evidence
about the IPRA investigation, the trial court ruled that defendant was entitled to introduce all the
evidence that made up the substance of the IPRA investigation but that he could not elicit testimony
about the fact that an IPRA investigation had, in fact, been conducted. Defendant really raises two
separate arguments concerning the IPRA investigation. First, he argues that the trial court
incorrectly ruled on the State’s motion in limine on the issue. Second, defendant argues that while
his counsel was cross-examining the officers about the arrest, the trial court improperly sustained
objections in which his counsel intended to impeach the officers by using their testimony from the
IPRA hearing.
¶ 29 The trial court did not abuse its discretion by limiting evidence about the IPRA
investigation in the manner in which it did. Defendant was fully entitled to and did introduce
evidence about the circumstances surrounding the detention and arrest, including that he suffered
a broken jaw and required surgery. Defendant was permitted to elicit testimony to support his
contention that the officers used excessive force, and defendant was able to present his defense
that the gun was planted by the officers. Defendant testified in his own defense on the substance
of these matters as well. All that defendant was prohibited from exploring at trial was the fact that
an IPRA investigation had taken place. The trial court even ruled that defendant could elicit
evidence that the officers had testified about the events in a certain way at a “prior hearing,” just
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that the defense could not use the term “IPRA.” The trial court expressly ruled that defendant could
use the officers’ testimony from the IPRA hearing for impeachment purposes.
¶ 30 Even though the IPRA investigation was concluded with a favorable ruling for the officers,
the trial court was entitled to find in its discretion that testimony about the IPRA case would
distract from the actual issue that the jury was present to decide—whether defendant unlawfully
possessed a weapon. See People v. Sykes, 224 Ill. App. 3d 369, 375 (1991). The trial court indicated
that if it were to allow defendant to introduce the fact that and IPRA investigation was opened into
the circumstances surrounding defendant’s arrest, it would also allow the State to introduce the
fact that the investigation was concluded and it was resolved in the officers’ favor. Defendant
objected to the trial court allowing evidence of the decision in the IPRA case to be introduced at
trial. So the trial court crafted an evidentiary ruling that allowed both sides to achieve most of their
ends but left both somewhat unsatisfied. The fact that the IPRA investigation had concluded and
was resolved favorably for the officers undercuts defendant’s contention that the existence of an
IPRA investigation would have motivated the officers to testify in a certain way at trial. In the end,
defendant was allowed to present, and the jury was allowed to hear, all of the substance from the
IPRA investigation; defendant was simply prohibited from referring to the existence of any official
investigation. The jury heard about the alleged police misconduct, including about the injury
inflicted on defendant and about the officers allegedly fabricating the evidence that defendant was
in possession of a gun in order to cover up their own wrongdoing. The trial court did not abuse its
discretion in ruling on the motion in limine at issue.
¶ 31 A separate issue is defendant’s contention that the trial court improperly sustained the
State’s objections when defendant attempted to impeach the officers with statements that they had
made during the IPRA hearing. Defendant argues that the testimony that Officer Huberts gave at
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the IPRA hearing was inconsistent with the testimony he gave at trial and during the hearing on
defendant’s motion to suppress evidence, particularly about the timing in which defendant
complained about the injury to his jaw that he sustained when the officers detained him.
¶ 32 At trial, Officer Huberts testified that defendant did not complain about being in pain before
or during his interrogation or the time at which he made inculpatory statements to the officers.
Officer Huberts testified that it was only after defendant made inculpatory statements and had been
placed in lock up that the officers noticed he was injured. However, during the IPRA hearing,
Officer Huberts testified that defendant stated that his jaw was “messed up” while the officers were
processing defendant. Defendant argues that the inconsistency in the timing that Officer Huberts
had attested to was relevant and should have been allowed to impeach the officers’ trial testimony.
¶ 33 The evidence that defendant argues should have been permitted was the statements he
claims that he made to officers about his injury. Defendant is arguing that he should have been
able to introduce his own post-arrest, out-of-court statements to the officer. A defendant cannot
introduce, through another witness, his own prior statements in an attempt to prove the truth of a
matter that is the subjects those statements. People v. Woods, 292 Ill. App. 3d 172, 178 (1997); see
also People v. Patterson, 154 Ill. 2d 414, 452 (1992) (out of court, self-serving statements by an
accused are inadmissible hearsay).
¶ 34 Defendant testified at trial and was fully entitled to testify about what he told the officers
or to explore the issue about when the officers knew or should have known about his injuries.
Defendant was not, however, entitled to introduce, through the officers, statements he allegedly
made with the intended purpose being to prove when the officers might have known about his
injuries. The prior consistent statements that defendant claims he should have been entitled to
introduce to the jury would have had the purpose of improperly bolstering his trial testimony
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without falling into any hearsay exception. See People v. House, 377 Ill. App. 3d 9, 19 (2007)
(proof of a prior consistent statement made by a witness is inadmissible hearsay, which may not
be used to bolster a witness’s testimony). The trial court did not abuse its discretion when it
sustained the State’s objection to defendant’s line of questioning about what defendant said to the
officers regarding his injuries. Defendant has failed to demonstrate that the trial court’s rulings on
these evidentiary issues entitle him to any relief. See People v. Short, 2014 IL App (1st) 121262,
¶¶ 102-105.
¶ 35 III. CONCLUSION
¶ 36 Accordingly, we affirm in part, reverse in part, and remand for resentencing.
¶ 37 Affirmed in part and reversed in part; cause remanded.
¶ 38 Justice Hyman, dissenting:
¶ 39 One fact—the officers’ order to disperse—sets this case apart. This is not the traditional
case arising under Illinois v. Wardlow, 528 U.S. 119 (2000), because Webb’s flight followed the
order to disperse and so was not unprovoked. This doctrinal wrinkle aside, the majority’s decision
ultimately runs afoul of the fourth amendment’s superseding mandate: reasonableness. See People
v. Timmsen, 2016 IL 118181, ¶ 9 (“touchstone of the fourth amendment is *** reasonableness”
(internal quotation marks omitted)). In my view, it is patently unreasonable for police officers to
induce flight by ordering a large group to disperse and then rely on that same flight as part of their
justification to detain someone. Although fourth amendment doctrine does not have a word for it,
in other areas of criminal law, we call it entrapment—to induce someone to do something for
which there is no evidence he or she would have otherwise done and to later hold that behavior
against them. See 720 ILCS 5/7-12 (West 2018) (defining defense of entrapment). I consider this
practice incompatible with basic fourth amendment principles.
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¶ 40 Moreover, the majority’s reasoning has unworkable practical implications. Confronted
with a similar order to leave, what is a person to do? Move too slowly and be accused of disobeying
the order? Move too quickly and come under suspicion? The fourth amendment does not require
ordinary people to calibrate their behavior to such a minute degree. I respectfully dissent.
¶ 41 As an initial matter, I find it important to make explicit the point at which the officers
seized Webb. We must decide that moment because we evaluate only the information the officers
had before that moment when determining the seizure’s lawfulness. E.g., People v. Close, 238 Ill.
2d 497, 514 (2010) (Burke, J., dissenting) (first step in determining whether seizure was reasonable
is “ ‘whether the officer’s action was justified at its inception’ ” (quoting Terry v. Ohio, 392 U.S.
1, 19-20 (1968)). I read the majority opinion to tacitly find that the officers had conducted a Terry
stop from the moment they placed hands on Webb. See supra ¶ 20 (“putting his hands on [Webb]’s
shoulders” was a “lawful Terry stop”). The State concedes as much. I would make express what
the majority implies: when officers touched Webb, he was seized for the purposes of the fourth
amendment and we look only to Webb’s behavior before then to determine whether officers had
the authority to touch him.
¶ 42 An officer seizes a person for fourth amendment purposes when the officer makes a
sufficient show of authority indicating to a reasonable person that compliance is required and the
person under suspicion submits to that authority. See California v. Hodari D., 499 U.S. 621, 628-
29 (1991). Importantly, Webb’s resistance after the officers initially grabbed him did not defeat
their initial seizure of him. When Hodari D. spoke of compliance with an officer’s show of
authority, the United States Supreme Court’s primary concern was a suspect who completely frees
themselves from the officer’s control. The court spoke of an arrestee defeating an officer’s seizure
by “escap[ing]” or “br[eaking] away” and entering a “period of fugitivity.” Id. at 625. The Illinois
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Supreme Court has thought of this issue in a similar way—the question is not whether a suspect
was cooperative, the question is whether the suspect completely defeats the seizure and interrupts
the causal chain between the seizure and discovery of contraband. See People v. Henderson, 2013
IL 114040, ¶ 44 (“defendant’s flight *** interrupt[ed] the causal connection between” his seizure
and the discovery of a gun).
¶ 43 Nothing broke the link between the officers’ initial touching of Webb and applying further
force that finally brought him under submission. This means that the officers’ actions must have
been justified at the moment of the initial touching. In other words, Webb’s later resistance cannot
be used as part of the calculus for determining reasonable suspicion because it took place after he
had been seized.
¶ 44 And unlike the majority, I disagree that the officers had enough information to justify
Webb’s seizure. The majority takes Webb’s flight coupled with his holding his saggy pants as
sufficient ground on which to detain him. I disagree with this analysis on its own terms. We have
held that a person’s flight insufficient to warrant reasonable suspicion of criminal activity. In re
D.L., 2017 IL App (1st) 171764, ¶ 28 (“Although [u]nprovoked flight in the face of a potential
encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory
stop *** [citation], there is no bright-line rule authorizing the temporary detention of anyone who
flees at the mere sight of the police [citation].” (Emphasis and internal quotation marks omitted.)).
We also have explained that a defendant putting his hands in the pockets of his saggy pants not to
be indicative of criminal activity. In re Rafeal E., 2014 IL App (1st) 133027, ¶ 30 (“Putting
something in one’s pockets, in this case, one’s hands, is not a hallmark of criminal activity.”). I
see no reasoned basis on which to distinguish a defendant who puts his hands in his pockets with
one who holds up his saggy pants. See People v. White, 2020 IL App (1st) 171814, ¶ 37 (Hyman,
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J., specially concurring) (describing as “unworkable” any per se distinction between walking,
jogging, or running from police officer).
¶ 45 That said, accepting the suspicion aroused by flight as a given, the officers’ order to
disperse dramatically alters the analysis. In each case the State cites where flight was a factor in
the analysis of reasonable suspicion, including Wardlow, the defendant fled from police officers
without any evidence of provocation. See Wardlow, 528 U.S. at 124-25 (“[h]eadlong flight” when
“unprovoked” is the “consummate act of evasion”); see also People v. Salgado, 2019 IL App (1st)
171377, ¶ 3 (defendant and companion “immediately broke apart and walked in different
directions” on mere sight of a police car); People v. Johnson, 2019 IL App (1st) 161104, ¶ 3
(defendant “ ‘walk[ed] briskly *** as if to avoid’ ” police officers on mere sight of the officers’
SUV in alley). Here, Webb’s fleeing was not an “act of evasion” but, rather the opposite, an act of
compliance. Contra Wardlow, 528 U.S. at 124-25.
¶ 46 I also reject the State’s argument that interpreting Webb’s flight as compliance with the
officers’ orders requires probing his “subjective state of mind.” We use “commonsense judgments
and inferences about human behavior” when determining what constitutes suspicious behavior. Id.
at 125. Notions of common sense inform us that a group ordered by police to disperse will comply.
See Hodari D., 499 U.S. at 627 (“policemen do not [give commands] expecting to be ignored”). It
goes without saying that members of the group may disperse at varying speeds. Courts in other
jurisdictions have similarly used common sense to acknowledge the risk that “police officers can
create reasonable suspicion or even probable cause where there was none by coercively infringing
upon the individual’s right to be let alone, and waiting for an arguably suspicious reaction.” State
v. Young, 2006 WI 98, ¶ 45, 294 Wis. 2d 1, 717 N.W.2d 729; see also id. ¶ 45 n.15 (citing 4 Wayne
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R. LaFave, Search and Seizure § 9.4(d), at 461-62 (4th ed. 2004) (citing Commonwealth v.
Thibeau, 429 N.E.2d 1009 (Mass. 1981))). The officers’ behavior here manifests that risk.
¶ 47 For similar reasons, I would reject one of the trial court’s factual findings as against the
manifest weight of the evidence. E.g., People v. Manzo, 2018 IL 122761, ¶ 25 (reciting standard
of review). The trial court found, “someone coming in the officer’s direction holding their
waistband is certainly justification which would be described as if not bizarre behavior ***
certainly behavior that would justify a further inquiry for officer safety.” The evidence does not
support the trial court’s conclusion. Testimony shows that officers came up to the group from all
sides. As far as the record reveals, any direction Webb could have gone would have required him
to move toward an officer. I do not find Webb’s behavior “bizarre” or, under the circumstances,
an indication of dangerousness.
¶ 48 Perhaps more important than the trial court’s unsupported factual premise is its
misstatement of the law. Officers cannot support their decision to stop someone based on a belief
that the person poses a danger—that is the standard for a frisk, not a stop. See United States v.
Robinson, 846 F.3d 694, 698 (4th Cir. 2017) (en banc) (distinguishing between the requirements
for Terry stop and a Terry frisk (citing Arizona v. Johnson, 555 U.S. 323, 326-27 (2009))). Only
suspicion that a defendant committed, was committing, or was about to commit a crime can support
a stop. Id. The trial court’s invocation of the officers’ fear for their safety as a reason to stop Webb
misapplies fourth amendment law.
¶ 49 Here, that distinction makes a difference. The officers did not suggest that Webb’s saggy
pants made them suspicious that he was committing a crime, only that he may be armed. Of course,
in Illinois, suspicion that a person is armed, without more information, does not constitute
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suspicion of criminal activity. See People v. Burns, 2015 IL 117387, ¶ 32 (finding criminal offense
of carrying gun outside home to be facially unconstitutional).
¶ 50 So what is left? It appears to me the officers believed holding up saggy or baggy pants was
evidence of criminal activity. But that is not particularized suspicion, which the fourth amendment
requires. E.g., People v. Gaytan, 2015 IL 116223, ¶ 20 (“officers must have ‘a particularized and
objective basis for suspecting the particular person stopped’ was violating the law” (emphasis
added) (quoting Navarette v. California, 572 U.S. 393, 396 (2014))). Indeed, it is nothing but a
hunch based on a common mode of dress.
¶ 51 I cannot agree that a style choice with a varied history should ever be a basis for suspicion
of criminal activity. See Gene Demby, Sagging Pants and the Long History of “Dangerous” Street
Fashion, NPR (Sept. 11, 2014, 8:18 AM), https://www.npr.org/sections/codeswitch/2014/09/11/
347143588/sagging-pants-and-the-long-history-of-dangerous-street-fashion [https://perma.cc/
9RWE-RD35]. Though not in the record, I worry that saggy pants, a male fashion statement, may
be celebrated (see Brooke Bobb, Could You Love a Man in the Baggy Pants That Took Over the
Runways This Season?, Vogue (Jan. 22, 2019), https://www.vogue.com/article/fall-2019-
menswear-baggy-pants-trend [https://perma.cc/TS5N-TRH5]), yet used as a proxy for suspected
criminality. See Shahid Abdul-Karim, For Some, Sagging Pants Carry Greater Meaning, Wash.
Times (July 13, 2014), https://www.washingtontimes.com/news/2014/jul/13/for-some-sagging-
pants-carry-greater-meaning [https://perma.cc/LP99-9FJT] (noting “ ‘[s]kateboarders and
hipsters’ ” can wear saggy pants without attracting ire of police). I acknowledge the officers’
experience finding weapons on individuals who grabbed their waist while wearing saggy pants
(supra ¶ 16), but the officers’ suspicion must have been based on facts particularized to Webb.
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Nothing in the record points to a particularized suspicion—for example, an unusual bulge, a glint
of metal, or a report of someone with a gun.
¶ 52 As a final side note, I agree with the majority’s decision not to spend much time analyzing
People v. Horton, 2019 IL App (1st) 142019-B. See supra ¶ 20 n.1. It is too different to help:
Horton did not involve any police directives, let alone an order to disperse.
¶ 53 In sum, the primary fact the officers relied on to detain Webb—his flight toward them—
was entirely the result of the officers’ own actions. I cannot agree that it is reasonable under the
fourth amendment for police officers to essentially trick people into behavior the law considers
“suspicious,” so I dissent.
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No. 1-18-0110
Cite as: People v. Webb, 2020 IL App (1st) 180110Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR-
1705001; the Hon. Thomas R. Davy and the Hon. Williams B.
Raines, Judges, presiding.
Attorneys Catharine D. O’Daniel, of Chicago, for appellant.
for
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Christine Cook, and Clare Wesolik Connolly, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
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