People v. Baker , 2020 IL App (2d) 180300 ( 2020 )

2020 IL App (2d) 180300No. 2-18-0300
Opinion filed December 22, 2020
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 15-CF-2618
)
PERCY F. BAKER, ) Honorable
) John S. Lowry,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Percy F. Baker, was convicted of aggravated robbery
(720 ILCS 5/18-1(b)(1) (West 2014)) and sentenced to 22 years’ imprisonment. He appeals,
contending that the trial court erred in denying his motion to quash his arrest and suppress evidence
where the police exceeded the scope of a Terry (see generally Terry v. Ohio, 392 U.S. 1 (1968))
stop by handcuffing him, placing him in a police car, and searching him. Because the evidence
would inevitably have been discovered, we affirm.
¶2 I. BACKGROUND
¶3 Defendant filed a motion to quash his arrest and suppress cigarettes and money found in a
search of his person. At a hearing on the motion, Sergeant Duane Johnson testified that on
2020 IL App (2d) 180300November 9, 2015, he responded to a report of a robbery at a Walgreens on Kishwaukee Avenue.
The dispatch stated that the suspect was a black male, 40 to 50 years old, and wearing a navy
hooded sweatshirt, jeans, and a ski mask. The suspect reportedly fled down an alley.
¶4 Johnson drove to the area and saw defendant, who matched the suspect’s general
description. Johnson said that defendant looked in his direction and then quickly turned away.
Johnson shined his spotlight on defendant, but defendant continued to walk away. As defendant
proceeded down the sidewalk, he paused behind a tree. When he emerged, Johnson called to him
to stop. When defendant did not do so, Johnson yelled that he would release his dog. Defendant
stopped and put his hands out. At gunpoint, Johnson ordered defendant to the ground and
handcuffed him.
¶5 Johnson patted defendant down but found no weapons. He observed some cigarettes in
defendant’s pocket as well as gloves sticking out of his sweatshirt. At some point, other officers
arrived. Johnson ordered Officer David Cerasa to search defendant again and place him in a squad
car.
¶6 Johnson then went to the tree behind which defendant had paused. There, Johnson found
a gun on top of a pile of leaves. He then went to the Walgreens to view the surveillance video.
After watching the video, he concluded that defendant’s clothes matched those of the robber.
¶7 The trial court denied the motion to suppress. The court found that Johnson had
reasonable suspicion to conduct a Terry stop and frisk. However, the officers exceeded the scope
of a Terry frisk when they recovered the cigarettes. The court found, though, that the cigarettes,
as well as any money found on defendant, would inevitably have been discovered. 1 The court
1
Defendant’s motion sought suppression of the cigarettes and money, but Johnson testified
-2-
2020 IL App (2d) 180300reasoned that, after watching the surveillance video, Johnson had probable cause to arrest
defendant and that a search incident to arrest would have uncovered the items.
¶8 At trial, Johnson testified consistently with his testimony at the suppression hearing.
Cerasa testified that, at Johnson’s direction, he searched defendant and secured him in a squad car.
The search revealed $132 in small bills and three packages of Newport cigarettes.
¶9 Israel Rodriguez, a Walgreens customer present when the robbery occurred, told police
that the robber was wearing a black hooded sweatshirt with maroon markings. Isaiah Jefferson
was working the register that night. Around 7:40 p.m., a masked man pointed a gun at Jefferson’s
head and demanded money. Rodriguez’s card transaction was pending, so Jefferson could not
open the register. He walked to another register and opened it. The robber grabbed the 1, 5, and
10 dollar bills from the open drawer and left. Jefferson told the police that, although the robber
was wearing a mask, he could see that he was a black man. The robber wore gloves and a faded
black sweatshirt.
¶ 10 Officer Nolan Walker testified that, after interviewing witnesses, he put out a description
of the suspect as a 40- to 50-year-old black man, who was 5 feet 8 inches and 190 pounds, wearing
a blue hooded sweatshirt and jeans. Walker confirmed that Jefferson told him that the robber’s
sweatshirt was blue.
¶ 11 Chris Meyers said that he was in the manager’s office when an employee came in and told
him that the store had been robbed. Meyers identified a photograph of the scene showing that
that he did not observe any money while frisking defendant. However, the court held that, even
if money was recovered during the frisk or later search of defendant, it would not be suppressed.
-3-
2020 IL App (2d) 180300boxes of Newport cigarettes were missing from behind the register. Meyers checked the register
and found it to be $137 short. All of the missing bills were ones, fives, and tens.
¶ 12 Detective Vince Kelly processed the scene on Kishwaukee Avenue where defendant was
stopped. Kelly recovered a BB gun near a fence in that area.
¶ 13 The jury found defendant guilty of aggravated robbery. The trial court sentenced him to
22 years’ imprisonment. Defendant timely appealed.
¶ 14 II. ANALYSIS
¶ 15 Defendant contends that the trial court erred in denying his motion to suppress the money
and cigarettes. He does not dispute that both the stop and the initial frisk by Johnson were proper.
He contends that the only search permitted during a Terry stop is a quick frisk for weapons.
Defendant infers from the testimony at the suppression hearing and at trial that the cigarettes and
money were seized during Cerasa’s search of defendant after he was handcuffed. Defendant
argues that the handcuffing turned the encounter from a Terry stop into an arrest requiring probable
cause, which he claims was lacking at that time. Thus, defendant concludes, the fruits of Cerasa’s
search should have been suppressed.
¶ 16 In response, the State argues, as the trial court found, that even if defendant was illegally
arrested, the evidence need not have been suppressed. The State points out that the investigation
of the robbery was ongoing and that, after the police interviewed the witnesses and watched the
surveillance tape, they would have had probable cause to arrest defendant. The money and
cigarettes would then have been found in a search incident to arrest.
¶ 17 The fourth amendment to the United States Constitution guarantees 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. Fourth amendment reasonableness generally requires a
-4-
2020 IL App (2d) 180300warrant supported by probable cause. People v. Flowers, 179 Ill. 2d 257, 262 (1997). A limited
exception to the warrant requirement was recognized in Terry. There, the United States Supreme
Court held that a police officer may sometimes briefly detain a person for investigatory purposes
and, if necessary for safety, conduct a limited search for weapons. Id. Under Terry, an officer
may briefly detain a person if the officer reasonably believes that the person has committed, or is
about to commit, a crime. Id. (citing Terry, 392 U.S. at 22). If the officer reasonably believes
that the person stopped is armed and dangerous, the officer may subject the person to a limited
search for weapons, commonly referred to as a “ ‘frisk.’ ” Id. (citing Terry, 392 U.S. at 24).
¶ 18 Whether an investigatory stop is valid is a separate question from whether a frisk is valid.
Id. at 263. The sole justification for the search is to protect the police officer and others in the
vicinity, not to gather evidence. Id. The scope of the search is therefore strictly limited to a
search for weapons. Id.
¶ 19 In reviewing a trial court’s ruling on a suppression motion, we apply a two-part standard
of review. People v. Cosby, 231 Ill. 2d 262, 271 (2008) (citing People v. Luedemann, 222 Ill. 2d
530, 542-43 (2006), citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). Under this
standard, we defer to the trial court’s factual findings and reverse them only if they are against the
manifest weight of the evidence. Id. However, we review de novo the trial court’s ultimate legal
ruling as to whether suppression is warranted. Id.¶ 20 As noted, defendant does not dispute that both the stop and the initial frisk were proper.
Defendant was found near the Walgreens and matched the general description of the robber, who
was reported to have a gun. The parties dispute whether defendant was illegally arrested, but we
need not decide this issue because we agree with the trial court that the evidence would have been
discovered in any event.
-5-
2020 IL App (2d) 180300¶ 21 “For the inevitable discovery doctrine to apply, three criteria must be met: (1) the condition
of the evidence must be the same when found illegally as it would have been when found legally;
(2) the evidence would have been found by an independent line of investigation untainted by the
illegal conduct; and (3) the independent line of investigation must have already begun when the
evidence was discovered illegally.” People v. Shanklin, 250 Ill. App. 3d 689, 696 (1993). Here,
there is no question that the police had already begun investigating the robbery when the allegedly
illegal search was conducted. Defendant, however, disputes the first two elements. He contends
that, “if [he] had not been illegally arrested, there is no guarantee that the money or cigarettes
would not have been used or consumed.” Defendant further argues that the “evidence could only
have been discovered during a thorough search of the defendant’s person which was facilitated by
keeping the defendant in custody illegally until probable cause was developed.” Notably,
defendant cites no authority for these assertions.
¶ 22 As noted, police were already investigating the robbery when defendant was stopped.
After handing defendant off to Cerasa, Johnson searched the area where defendant disappeared
behind a tree and found a BB gun on top of a pile of leaves. He then went to the Walgreens to
continue the investigation. There, he learned that video showed the suspect wearing shoes with a
unique design that matched those defendant wore. Also, a unique emblem on the suspect’s
clothes was identical to one on defendant’s clothes. At this point, the police had probable cause
to arrest defendant for the robbery, and a search incident to arrest would undoubtedly have revealed
the contraband. See People v. Bailey, 159 Ill. 2d 498, 503 (1994) (search incident to arrest is a
traditional exception to the warrant requirement as it is reasonable for police to search an arrestee
for weapons or evidence that could be concealed or destroyed).
-6-
2020 IL App (2d) 180300¶ 23 Defendant’s contention that “there is no guarantee that the money or cigarettes would not
have been used or consumed” is sheer speculation and fails to account for the fact that the police
could legally detain defendant while they continued their investigation. A Terry stop must be
limited in scope and duration, lasting no longer than necessary to effectuate the stop’s purpose.
People v. Johnson, 408 Ill. App. 3d 107, 113 (2010). Nevertheless, a Terry stop may last for a
reasonable time while the officer involved attempts to confirm or deny his suspicions. People v.
Johnson, 387 Ill. App. 3d 780, 790 (2009). It is difficult to discern from the record precisely how
much time elapsed between Johnson’s first contact with defendant and defendant’s formal arrest
for the robbery, but defendant makes no argument that the duration of his detention was
unreasonably long.
¶ 24 People v. Calderon, 336 Ill. App. 3d 182 (2002), on which defendant relies, is
distinguishable. There, after receiving an anonymous tip that the defendant’s companions had
large amounts of drugs and drug proceeds, the police stopped a car in which the defendant was
riding. The defendant and her companions were then detained for more than an hour while police
searched for the drugs. The trial court specifically found that the defendant’s detention exceeded
the reasonable scope of the investigation. Id. at 193. Here, there was no finding, and defendant
makes no argument, that the length of the detention was longer than necessary to complete the
investigation.
¶ 25 III. CONCLUSION
¶ 26 The judgment of the circuit court of Winnebago County is affirmed.
¶ 27 Affirmed.
-7-
2020 IL App (2d) 180300No. 2-18-0300
Cite as: People v. Baker, 2020 IL App (2d) 180300Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 15-CF-
2618; the Hon. John S. Lowry, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Erin S. Johnson, of State
for Appellate Defender’s Office, of Elgin, for appellant.
Appellant:
Attorneys Marilyn Hite Ross, State’s Attorney, of Rockford (Patrick
for Delfino, Edward R. Psenicka, and John G. Barrett, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
-8-