People v. Jackson

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Jackson, 2012 IL App (1st) 103300Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TOMMY JACKSON, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-10-3300
Filed October 26, 2012
Held Defendant’s conviction for unlawful use of a weapon by a felon was
(Note: This syllabus upheld where the arresting officers had a reasonable suspicion for a Terry
constitutes no part of stop and a protective patdown of defendant’s person and his backpack
the opinion of the court they conducted based on defendant’s presence in a “high-crime” area, his
but has been prepared bizarre actions when confronted, and their concern for their safety and the
by the Reporter of safety of others in the area.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-13057; the
Review Hon. Vincent M. Gaughan, Judge, presiding.
Judgment Affirmed; mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Peter
Fischer, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel),
for the People.
Panel JUSTICE R. GORDON delivered the judgment of the court, with
opinion.
Justice Palmer concurred in the judgment and opinion.
Justice Garcia dissented, with opinion.
OPINION
¶1 Following a bench trial, defendant Tommy Jackson was convicted of two counts of
unlawful use of a weapon by a felon. After hearing factors in aggravation and mitigation, he
was sentenced as a Class X offender to 74 months in the Illinois Department of Corrections
due to his criminal background. On appeal, defendant argues that the loaded handgun found
in his backpack should have been suppressed because police officers lacked both (1) a
reasonable suspicion to justify the Terry stop and (2) a reasonable belief that he was armed
and dangerous which was needed to justify the frisk. For the following reasons, we affirm.
¶2 BACKGROUND
¶3 Defendant was convicted of two counts of unlawful use of a weapon by a felon after a
combined suppression hearing and bench trial. Chicago police officer Gary Anderson was
the only witness that testified.
¶4 Officer Anderson testified that he had been on the force for three years, and that shortly
after midnight on July 7, 2010, he was driving a marked squad vehicle with his partner. As
he drove eastbound in the 3900 block of West Ferdinand Street in Chicago, he observed
defendant with a backpack “walking westbound on Ferdinand at a rapid pace” and observed
that defendant was watching his vehicle. We take judicial notice of the fact that this address
is within the Humboldt Park neighborhood of Chicago. About 10 minutes later, Anderson
observed defendant walking south on Pulaski toward Ferdinand. Anderson observed
defendant “walking again at a rapid pace and this time paying more attention to us.”
Defendant “was directing his attention towards us the whole time that we drove by.”
¶5 As the officers drove past defendant a second time, they noticed unusual behavior by
defendant in that “we could see that he was still looking at us even when we had already
passed him.” The officers circled the block to return to defendant “to conduct a field
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interview.” Officer Anderson described the stop as follows:
“Q. And what was the defendant doing at the time that you stopped your car?
A. When we stopped our car, he was standing on the corner.
Q. What, if anything, was the defendant doing?
A. When we got out of the our car, he began to act a little erratic.
Q. When you say he acted erratic, what do you mean by that?
A. He began speaking before we even asked any questions, moving his arms, flailing
about, moving backwards.
Q. You said he was speaking?
A. I couldn’t even understand what he was saying.
Q. What did your partner do after you stopped your vehicle?
A. We told him to put his hands on the hood of the car.
Q. And what was the purpose in doing that?
A. Officer safety.
Q. Did the defendant comply?
A. No, he did not.
Q. What did you do next?
A. We repeatedly asked him to put his hands on the vehicle.
Q. And at any time while you were out there, did the defendant put his hands on the
vehicle?
A. He repeatedly put them on and take them off [sic].
Q. What was he doing with his arms while you were approaching him?
A. Pointing, flailing, all kinds of movements.
Q. At that point when the defendant refused to keep his hands on the vehicle, what
did you do?
A. We detained him.
Q. When you say you detained him, how did you go about doing that?
A. We put his hands in cuffs.”
¶6 Anderson testified that he performed a “protective pat down” of defendant and his
backpack after defendant was handcuffed. In manipulating the backpack, the officer felt a
“large metal object” he believed was the barrel of a gun. The officer opened the backpack
and observed a handgun, which was loaded. The officers then took possession of the
backpack and arrested defendant.
¶7 On cross-examination, Anderson testified that he and his partner exited their vehicle and
approached defendant. Anderson did not recall if he asked defendant what was in his
backpack. The officer testified that, as defendant started to speak, defendant moved
backward and spoke before either officer had asked defendant a question. Anderson
instructed defendant to place his hands on the hood of the squad vehicle and removed the
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backpack from defendant’s shoulders. Anderson then placed the backpack on the hood of the
squad vehicle before handcuffing defendant’s hands behind his back.
¶8 On redirect examination, Anderson described the area in which these events took place
as a “high violence, high narcotics trafficking area,” where he had made arrests for violent
and drug-related crimes before. Specifically, Officer Anderson testified:
“Q. And how would you describe the area that he was walking in?
A. It’s a high violence, high narcotics trafficking area.
Q. Have you yourself made arrests in that area for those things before?
A. Yes, I have.”
The trial court then asked “[r]ecross?” and defense counsel replied that she had no further
questions “based on that.”
¶9 After hearing argument, the trial court denied defendant’s motion to quash the arrest and
suppress the evidence. The trial court found credible the officer’s testimony that this was a
“high violence, high narcotics trafficking area”; and that defendant’s actions were “erratic.”
The trial court held that, after the officers exited their vehicle and approached defendant,
defendant’s erratic actions, including his placing his hands on the police vehicle and
removing them, provided the reasonable suspicion needed to justify an investigative stop.
The trial court determined that, based on the totality of the circumstances, the detention of
defendant and the subsequent patdown search of his backpack were warranted. The trial court
then found defendant guilty of the charged offenses.
¶ 10 ANALYSIS
¶ 11 The sole issues on this appeal concern whether the officers had the reasonable suspicion
needed for a Terry stop and frisk. On appeal, defendant argues, first, that the officers lacked
the reasonable suspicion needed to support an investigative stop. Defendant argues, second,
that, even if the investigative stop was proper, the police lacked the justification to perform
a protective patdown of his person and his backpack. Defendant asks that we reverse the trial
court’s denial of his suppression motion. For the following reasons, we affirm.
¶ 12 I. Standard of Review
¶ 13 When reviewing a trial court’s ruling on a motion to suppress, we accord great deference
to the trial court’s factual findings. People v. Close, 238 Ill. 2d 497, 504 (2010). We will
reverse a trial court’s findings of fact only if they are against the manifest weight of the
evidence. People v. Bunch, 207 Ill. 2d 7, 13 (2003). “A judgment is against the manifest
weight of the evidence only when an opposite conclusion is apparent or when findings appear
to be unreasonable, arbitrary, or not based on evidence.” Bazydlo v. Volant, 164 Ill. 2d 207,
215 (1995).
¶ 14 However, we review de novo the trial court’s ultimate legal ruling as to whether
suppression was warranted. People v. Pitman, 211 Ill. 2d 502, 512 (2004); In re Mario T.,
376 Ill. App. 3d 468, 472 (2007) (“Our focus *** is on the legal question of the justification
of the stop and frisk so as to warrant the denial of the *** motion to suppress ***.”). De
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novo consideration means we perform the same analysis that a trial judge would perform.
Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). The ultimate legal question
in the case at bar is whether the handgun should have been suppressed, which is a question
that we consider de novo. Mario T., 376 Ill. App. 3d at 472-73 (“whether the motion should
have been granted necessarily turns on a reviewing court’s ‘own assessment of the facts in
relation to the issues presented and may draw its own conclusions when deciding what relief
should be granted’ ” (quoting Pitman, 211 Ill. 2d at 512)).
¶ 15 II. Stop and Search Law
¶ 16 Under the fourth amendment to the United States Constitution (U.S. Const., amend. IV),
a police officer may lawfully stop a person for brief questioning when the officer reasonably
believes that the person has committed, or is about to commit, a crime. Terry v. Ohio, 392
U.S. 1, 22 (1968). The Illinois legislature codified the Terry standard, which provides in
relevant part,
“Temporary Questioning without Arrest. A peace officer, after having identified himself
as a peace officer, may stop any person in a public place for a reasonable period of time
when the officer reasonably infers from the circumstances that the person is committing,
is about to commit or has committed an offense *** and may demand the name and
address of the person and an explanation of his actions.” 725 ILCS 5/107-14 (West
2008).
Stated in other words, the Terry standard allows the police to conduct a brief investigative
stop “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The investigative stop must be justified at its
inception. Terry, 392 U.S. at 19-20. However, the officer does not need probable cause to
justify a Terry stop. Close, 238 Ill. 2d at 505 (citing United States v. Sokolow, 490 U.S. 1,
7 (1989)).
¶ 17 A Terry stop permits the police to investigate situations or circumstances that provoke
suspicions, to either confirm or dispel those suspicions. Close, 238 Ill. 2d at 512. To justify
an investigative stop, the police must articulate the facts that, taken together with natural
inferences, warrant an investigative intrusion, “such as when the officer observes unusual
conduct which leads him reasonably to conclude in light of his experience that criminal
activity may be afoot.” People v. Ertl, 292 Ill. App. 3d 863, 868-69 (1997). A Terry stop
requires “more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal
activity.” Wardlow, 528 U.S. at 123-24 (quoting Terry, 392 U.S. at 27); see also People v.
Gherna, 203 Ill. 2d 165, 181 (2003).
¶ 18 The validity of an investigative stop turns on the totality of the circumstances known to
the officers at the time. Pitman, 211 Ill. 2d at 512. Once a Terry search is conducted, it is the
State’s burden to show that the search is constitutional. People v. Rushing, 272 Ill. App. 3d
387, 390 (1995); Mario T., 376 Ill. App. 3d at 474 (“it was the State’s burden to justify the
pat-down search of the respondent”).
¶ 19 Even if an investigative stop is warranted based on a reasonable suspicion that criminal
activity is afoot, a police officer needs more to justify a subsequent frisk. To justify a
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protective patdown of a properly detained citizen for possible weapons, the State must
demonstrate that the investigating officers had a reasonable belief that the defendant was
armed and dangerous. See People v. Galvin, 127 Ill. 2d 153, 164 (1989) (stop valid, search
not valid); People v. Rivera, 272 Ill. App. 3d 502, 506-07 (1995) (stop justified, search not
justified).
¶ 20 III. Factors in the Case at Bar
¶ 21 In the instant case, the trial court made two factual findings in upholding the validity of
the stop: (1) defendant’s presence in a “high-crime” area, and (2) defendant’s bizarre actions
upon being confronted by the police. See Mario T., 376 Ill. App. 3d at 474-81; People v.
Harris, 2011 IL App (1st) 103382, ¶ 12. Whether an area is a high-crime area and whether
a defendant’s conduct was bizarre are factual issues. Harris, 2011 IL App (1st) 103382, ¶ 13
(“Whether an area has a high level of crime is a factual issue.”). For the following reasons,
we find that the trial court’s factual findings on these issues were not against the manifest
weight of the evidence and that these two factual findings are sufficient to support the trial
court’s legal conclusion.
¶ 22 A defendant’s presence in an area of expected criminal activity, by itself, does not
constitute a reasonable, particularized suspicion that defendant either committed or was
about to commit a crime. Wardlow, 528 U.S. at 124 (“[a]n individual’s presence in an area
of expected criminal activity, standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime”); Mario T., 376 Ill. App. 3d
at 476 (respondent’s presence in so-called high-narcotics area is “no different from the
presence of others” the officers may have encountered); People v. Linley, 388 Ill. App. 3d
747, 752 (2009) (defendant’s presence in a residential area at a “late hour” does not justify
an investigative stop, even when the area is known for frequent criminal activity).
¶ 23 However, in Wardlow, the United States Supreme Court found that flight, plus presence
in a high-crime neighborhood, equaled reasonable suspicion. Wardlow, 528 U.S. at 123(“flight combined with the fact that it occurred in a high crime area supported a finding of
reasonable suspicion”). Similarly, in the case at bar and for the reasons explained below, we
find that defendant’s bizarre conduct, plus his presence in a high-crime neighborhood,
constituted reasonable suspicion.
¶ 24 IV. High-Crime Area
¶ 25 Defendant argues, first, that Officer Anderson’s testimony, by itself, that the area was a
high-crime area was insufficient evidence for the trial court to find that the location was, in
fact, a high-crime area. The dissent agrees with defendant on this point. However, we all
agree that Illinois v. Wardlow is the governing law, so an in-depth discussion of that case is
the best place to start our review of this issue.
¶ 26 In Wardlow, a caravan of four police vehicles drove down a street in Chicago, and
defendant looked at them and fled. Wardlow, 528 U.S. at 121-22. One of the officers then
stopped his vehicle and detained defendant. Wardlow, 528 U.S. at 122. During the course of
a protective patdown search, the officers recovered a handgun, and defendant was
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subsequently charged with unlawful use of a weapon by a felon. Wardlow, 528 U.S. at 122.
¶ 27 At the pretrial suppression hearing in Wardlow, the officer testified that he had gone to
this area because it was “ ‘one of the areas in the 11th District that’s high narcotics traffic.’ ”
People v. Wardlow, 287 Ill. App. 3d 367, 369 (1997). The trial court denied defendant’s
motion to suppress and defendant was subsequently convicted. Wardlow, 287 Ill. App. 3d
at 369.
¶ 28 On appeal, the appellate court held that there was “no support” in the record to support
the finding that this was a high narcotics-trafficking area. Wardlow, 287 Ill. App. 3d at 371.
The appellate court listed factors that could have provided support, such as: (1) “precise”
boundaries of the area known for narcotics trafficking; or (2) a nexus between “that area” and
the officer’s investigation. Wardlow, 287 Ill. App. 3d at 370-71. As a result, the appellate
court reversed the trial court’s ruling. Wardlow, 287 Ill. App. 3d at 371.
¶ 29 Our supreme court rejected the appellate court’s holding that the record contained no
support for the trial court’s finding that this was a high narcotics-trafficking area. People v.
Wardlow, 183 Ill. 2d 306, 310-11 (1998). Rejecting the appellate court’s proposed factors,
our supreme court held that “Officer Nolan’s uncontradicted and undisputed testimony,
which was accepted by the trial court, was sufficient to establish that the incident occurred
in a high-crime area.” Wardlow, 183 Ill. 2d at 310-11; see also Illinois v. Wardlow, 528 U.S.
119, 122 (2000) (the Illinois Supreme Court “reject[ed] the Appellate Court’s conclusion that
Wardlow was not in a high crime area”). However, the Illinois Supreme Court affirmed on
other grounds, finding that “an individual’s flight upon the approach of a police vehicle
patrolling a high-crime area” was not sufficient to justify a Terry top. Wardlow, 183 Ill. 2d
at 311.
¶ 30 The United States Supreme Court accepted our supreme court’s conclusions that this was
“an area known for heavy narcotics trafficking” and that defendant had fled at the approach
of the police. Wardlow, 528 U.S. at 124. However, unlike our supreme court, the United
States Supreme Court concluded that these two factors were sufficient to justify a Terry stop.
Wardlow, 528 U.S. at 124-25. Thus, the United States Supreme Court’s decision left intact
our supreme court’s holding that the officer’s “uncontradicted and undisputed testimony,
which was accepted by the trial court, was sufficient to establish that the incident occurred
in a high-crime area.” Wardlow, 183 Ill. 2d at 310-11.
¶ 31 In the case at bar, the dissent wants us to find the opposite of our supreme court.
Specifically, the dissent wants us to find that an officer’s uncontradicted and undisputed
testimony is not enough to establish that the incident occurred in a high-crime area. In
support, the dissent cites the appellate court’s decision in People v. Harris, 2011 IL App (1st)
103382, and specifically the dicta in Harris which states: “A conclusory and unsubstantiated
statement that a location is ‘a high crime area’ is insufficient to establish that consideration
for purposes of justifying a Terry stop.” Harris, 2011 IL App (1st) 103382, ¶ 14. However,
if one views Harris in light of its procedural posture, its holding and the holding of our
supreme court in Wardlow are not in conflict.
¶ 32 In Harris, the trial court stated that the area at issue was no more a high-crime area than
any other neighborhood in Chicago, and the trial court granted the defendant’s motion to
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suppress. Harris, 2011 IL App (1st) 103382, ¶ 13; see also id. ¶ 15 (observing that “the trial
court rejected” the officer’s contention that this area was known for its high burglary and
robbery rate). Thus, it was the State that was appealing. Thus, the State had the burden of
proving that the trial court’s implicit finding–that this was not a high crime area–was against
the manifest weight of the evidence.
¶ 33 The appellate court affirmed the trial court, and it observed in dicta the types of evidence
that the State could have presented but did not, such as the precise boundaries of the area
known for this type of crime, or a nexus between this area and the officer’s investigation.
Harris, 2011 IL App (1st) 103382, ¶¶ 14, 15. These were the same factors listed by the
appellate court in Wardlow, 287 Ill. App. 3d at 370-71, that were found to be not required
by our supreme court in Wardlow. As we observed above, our supreme court held in
Wardlow that an “[officer’s] uncontradicted and undisputed testimony, which was accepted
by the trial court, was sufficient”–by itself–“to establish that the incident occurred in a high-
crime area.” Wardlow, 183 Ill. 2d at 310-11.
¶ 34 The best way to harmonize Harris and Wardlow is to remember the procedural posture
of each case. In Harris, the trial court did not find this to be a high-crime area, and the State
was left with the task of showing that this conclusion was against the manifest weight of the
evidence–which it could not do. By contrast, in Wardlow, the trial court did find this to be
a high-crime area, and it was the defense who had the burden of showing that this conclusion
was against the manifest weight of the evidence–which it also could not do. The bottom line
in both cases is that the trial court’s factual findings, concerning whether this is or is not a
high-crime area, are entitled to a great deal of deference.
¶ 35 Thus, we reject defendant’s argument and find, as our supreme court did in Wardlow, that
an officer’s uncontradicted and undisputed testimony, which is accepted by the trial court,
is sufficient to support a trial court’s finding that the incident occurred in a high-crime area.
Wardlow, 183 Ill. 2d at 310-11.
¶ 36 To rule otherwise, as the dissent asks us to do, would be to put requirements on a police
officer’s testimony that we do not put on any other witness’s testimony. If any other witness
testified to a fact, and his or her testimony went uncontradicted and undisputed in the
courtroom, and the trial court listened to the testimony and found it credible, we would most
likely hold that the trial court’s finding was not against the manifest weight of the evidence.
It would be difficult for us to rule otherwise, if there was no countervaling evidence against
it. The question then becomes why should we single out the testimony of police officers for
greater scrutiny and greater requirements than we do for other witnesses? The answer, of
course, is that we should not.
¶ 37 In addition, even if we were to accept the Harris factors, we would reach the same
conclusion on the facts before us. In Harris, the prosecutor asked one of the police officers
whether the location, in which he observed defendant, was a high-crime area and the officer
responded affirmatively. Harris, 2011 IL App (1st) 103382, ¶ 13. However, the officer did
not provide any further explanation of the high-crime nature of the area.
¶ 38 If the officer had testified about his experience in the area, his testimony would no longer
have been conclusory or unsubstantiated. For example, in In re F.R., 209 Ill. App. 3d 274-8-
(1991), a police officer testified that he observed defendant at an intersection that was “a
known drug trafficking area and that he ha[d] observed drug transactions occurring at that
intersection approximately 25 times” and that he had made roughly one dozen drug arrests
at that intersection. F.R., 209 Ill. App. 3d at 275-76. The officer further testified that he
observed defendant act in a manner consistent with the previous drug transactions he had
observed at the intersection, but that he was unable to hear anything defendant said during
the supposed transaction, nor did he actually observe an exchange of drugs and money. F.R.,
209 Ill. App. 3d at 276-77. We held that, although the officer did not hear anything defendant
said or observe an exchange, his testimony that the intersection was a high-crime area,
coupled with his testimony that defendant’s actions were consistent with previous drug
transactions that the officer had observed at the intersection, gave the officer sufficient
justification to stop the defendant. In re F.R., 209 Ill. App. 3d at 279-80.
¶ 39 Similarly, in People v. Ocampo, 377 Ill. App. 3d 150, 161-62 (2007), where the officer
did not testify about his knowledge of the area, we held that the officer lacked the reasonable
suspicion for a stop. In Ocampo, the officer testified that he observed the driver of a vehicle
talk on his cellular telephone and that he observed defendant then emerge from behind a gas
station, tap on the trunk, enter the vehicle, and engage in a short conversation with the driver,
during which defendant appeared to be taking something out of his pocket. Ocampo, 377 Ill.
App. 3d at 161. The appellate court held that the officer’s observations did not rise to the
level of reasonable suspicion because the officer failed to testify either “that the area in
question was a high-crime area or that police had any incriminating prior knowledge about
either subject.” Ocampo, 377 Ill. App. 3d at 161. If the officer in Ocampo had testified about
his “knowledge,” then the stop would have been upheld.
¶ 40 The case at bar has what Ocampo lacked: testimony by the officer about his knowledge.
Here, the officer testified that he knew that the area was a high-crime area and, like in F.R.,
he explained how he knew that fact, namely, because he himself had made arrests there
before for violent and drug-related crimes.
¶ 41 People v. Surles, 2011 IL App (1st) 100068, ¶ 39, is a post-Harris case and it also
supports affirming in the case at bar. In Surles, as in our case, the police officer testified that
the location in which he observed defendant was a high-crime area. Surles, 2011 IL App (1st)
100068, ¶ 10. However, unlike our case, in Surles the officer testified that defendant did
nothing to make him nervous or afraid, and that the sole reason he placed defendant in
handcuffs was because he “ ‘want[ed] to play everyone safe’ ” in a dangerous area. Surles,
2011 IL App (1st) 100068, ¶¶ 8, 10. As a result, the appellate court in Surles held that
presence in a high-crime area, by itself, was insufficient to create reasonable suspicion,
where the officers had no prior knowledge of defendant and where defendant’s “conduct”
was not unusual. Surles, 2011 IL App (1st) 100068, ¶ 40; Mario T., 376 Ill. App. 3d at 476-
77 (holding that the defendant’s presence in a high-crime area was insufficient to arouse the
officer’s suspicion because she did not observe the defendant doing anything out of the
ordinary or consistent with activity she had observed in making prior arrests at the location
in question); People v. Linley, 388 Ill. App. 3d 747, 752 (2009) (finding no reasonable
suspicion where defendant did nothing “unusual”).
¶ 42 By contrast, in the case at bar, the officers had not only presence in a high-crime
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neighborhood, but also bizarre conduct by defendant, as discussed below. Wardlow, 528 U.S.
at 124 (“nervous, evasive behavior is a pertinent factor in determining reasonable
suspicion”). As a result, the Surles holding supports the conclusion that we reach today.
¶ 43 Thus, we conclude, first, that the officer’s undisputed and uncontradicted testimony,
which was accepted as credible by the trial court, was sufficient to establish that the area was,
in fact, a high-violence and a high-narcotics trafficking area. Second, we find that, even if
more was required, it was present in this case, since the officer testified about his knowledge
of the area, specifically that he had made arrests in this area for these types of crimes before.
¶ 44 Most importantly, in the case at bar, no one present in the courtroom thought to question
the police officer’s statement. The defendant, the defense counsel, the prosecutor and the trial
judge, who were all familiar with local conditions, were present in the courtroom and
listening to the police officer’s testimony that this area was a high-crime area, and yet no one
in the room thought to question this statement. We observe that the trial judge is an
experienced criminal law judge in Chicago who would recognize immediately the
neighborhood about which the officer was testifying. The question then becomes whether a
more distant appellate court, that is reading a cold transcript, should simply substitute its
judgment for that of a local and experienced trial judge concerning a purely factual issue. We
hold that is not appropriate.
¶ 45 V. Defendant’s Bizarre Behavior
¶ 46 Next, defendant claims that his conduct was not suspicious. Defendant claims that he was
simply standing on a street corner while the trial court found that his behavior was “erratic.”
We hold that the trial court’s factual finding was not against the weight of the evidence and
that this finding supports the trial court’s legal conclusion that the stop was justified.
¶ 47 In People v. Morales, 221 Ill. App. 3d 13, 17 (1991), the appellate court upheld a Terry
stop that was based upon the behavior of defendant. In Morales, the responding police officer
testified that he observed defendant and another person approach each other and “appear to
exchange something.” Morales, 221 Ill. App. 3d at 15. The officer testified that he did not
observe any drugs or money change hands, but he did characterize defendant’s behavior as
“ ‘drug-type action.’ ” Morales, 221 Ill. App. 3d at 15. The officer shined his light on the two
men, and they walked away in different directions. Morales, 221 Ill. App. 3d at 15.
Defendant cupped his hands as he walked away. Morales, 221 Ill. App. 3d at 15. The officer
and his partner pursued defendant in their squad vehicle because the officer believed that
defendant had made a drug sale or purchase. Morales, 221 Ill. App. 3d at 15. The appellate
court determined that the facts known to the officer, namely, that defendant was holding his
hands in a cupped manner, that defendant and the other individual exhibited “drug-type
action,” and that the two men separated when the officers arrived, were sufficient to create
a reasonable suspicion in the officer that defendant had committed or was about to commit
a crime. Morales, 221 Ill. App. 3d at 17.
¶ 48 In the case at bar, defendant’s behavior was also suspicious, although in a different way.
As the officers approached, defendant started flailing his arms about and pointing, and
moving backward and spouting words that the officers could not understand, before the
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officers even asked a question. When the officers asked him to place his hands on the
vehicle, defendant placed his hands on the vehicle and then took them off–repeatedly–on and
off.
¶ 49 Defendant’s conduct appeared to be more than simply standing on a corner to the officer
who witnessed it, and to the trial court who listened to the officer’s testimony firsthand.
Officer Anderson testified that he noticed defendant watching the squad vehicle as it passed
defendant a second time. When Officer Anderson and his partner exited their vehicle,
defendant began speaking before either officer spoke a word. According to Officer Anderson,
he could not “understand” anything defendant said. Officer Anderson described defendant’s
behavior as “erratic.” Specifically, Officer Anderson testified that defendant “was moving
his arms, flailing about, moving backwards,” pointing, and “making all kinds of
movements.” When asked to place his hands on the police vehicle, defendant removed and
placed his hands, back and forth, on the vehicle several times. The trial court found the
officer’s testimony credible and made a factual finding that defendant’s behavior was
“erratic.” As stated above, we are not at liberty to substitute our factual opinions for those
of the trial court that listened to the officer firsthand, and we may reverse the trial court’s
factual finding only if it is against the manifest weight of the evidence. Close, 238 Ill. 2d at
504; Bunch, 207 Ill. 2d at 13. In the case at bar, the transcript of the officer’s testimony
amply supports the trial court’s factual findings.
¶ 50 VI. The Frisk
¶ 51 On this appeal, defendant challenges not only the initial stop but also the subsequent
frisk. To justify a protective patdown, the State must demonstrate that “a reasonably prudent
person, when faced with the circumstances that the police confronted, would have believed
that his safety or the safety of others was in danger.” People v. Davis, 352 Ill. App. 3d 576,
580 (2004). Since the record discloses bizarre behavior by defendant in a high-crime area,
we find that the officers had a reasonable concern about their safety and the safety of others
in their vicinity.
¶ 52 As a final matter, the State and defendant agree that the mittimus erroneously reflects
convictions on each count of unlawful use of a weapon by a felon. The parties request the
mittimus be corrected to reflect a single conviction and we do so order. Ill. S. Ct. R.
615(b)(1) (eff. Jan. 1, 1967).
¶ 53 CONCLUSION
¶ 54 For the reasons set forth above, we affirm the trial court’s decision to deny defendant’s
motion to suppress evidence and order the mittimus corrected to reflect a single conviction.
¶ 55 Affirmed; mittimus corrected.
¶ 56 JUSTICE GARCIA, dissenting.
¶ 57 I cannot join the majority in affirming the circuit court’s denial of the defendant’s motion
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contending his stop and frisk were illegal, which was heard with his bench trial. In my
judgment, the officer’s testimony, upon which the State solely relies to support the finding
of reasonable suspicion and which the majority sets out above, amounts to no “more than an
inchoate and unparticularized suspicion or ‘hunch’ of criminal activity.” (Internal quotation
marks omitted.) Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000).
¶ 58 The testifying officer twice observed the defendant walking on a Chicago street.
Apparently because the defendant continued to look at the officers as they traveled in their
squad car, behavior that amounted to nothing more than the conduct the officers engaged in
by observing the defendant, the officers circled the block to conduct a field interview of the
defendant. The very observant defendant did not run as the officers approached. The only
officer to testify stated that as he and his partner approached the defendant in their police car,
the defendant was doing nothing more than “standing on the corner.” Only after the officers
exited their squad car did the defendant begin “to act a little erratic.” But still the defendant
did not run to prevent the officers from engaging in that “field interview.” Yet, no field
interview was ever conducted. According to the officer’s testimony, it was the defendant that
began to speak, “before [the officers] even asked any questions.” The officer, however, did
not testify to having interrupted the defendant to ask for his “name and address *** [or] an
explanation of his actions” as the Illinois codification of the Terry standard permits. 725
ILCS 5/107-14 (West 2008). Rather, immediately upon reaching the defendant, the officers
directed the defendant “to put his hands on the hood of the car” for “officer safety” reasons.
According to the officer, the defendant did not fully comply: “He repeatedly put them on and
[took] them off.” The testifying officer observed the defendant “[p]ointing, flailing, [and
making] all kinds of movements [with his arms].” The assistant State’s Attorney then asked,
“At that point when the defendant refused to keep his hands on the vehicle, what did you
do?” The testifying officer candidly admitted, “We detained him.” The officers “detained”
the defendant by placing “his hands in cuffs.” Before doing so, the officers removed the
defendant’s backpack. The testifying officer asserted that the area where the defendant was
detained was a “high crime area.”
¶ 59 The question before this court is whether those circumstances, as described by the
testifying officer, justify the forcible detention of a Chicago resident with the use of
handcuffs, before which his backpack was removed from his possession, following which
the defendant’s person and his backpack were frisked. I submit the United States and Illinois
Constitutions protect all citizens from such unwarranted police conduct. “Even a limited
search *** constitutes a severe, though brief, intrusion upon cherished personal security, and
it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392
U.S. at 24-25. “[A frisk for weapons] is a serious intrusion upon the sanctity of the person,
which may inflict great indignity and arouse strong resentment, and is not to be undertaken
lightly.” Id. at 17.
¶ 60 As the majority makes clear, the State points to two factors–presence in a “high crime
area” and the defendant’s purportedly “bizzare” conduct–to argue that the officers acted with
reasonable suspicion. Only if both factors are adequately supported by the evidence adduced
during the proceedings below can the State prevail because each factor alone is insufficient
to establish reasonable suspicion. “An individual’s presence in an area of expected criminal
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activity, standing alone, is not enough to support a reasonable, particularized suspicion that
the person is committing a crime.” Wardlow, 528 U.S. at 124. “Although nervous behavior
can be a pertinent factor in determining reasonable suspicion [citation], nervousness alone
does not justify a frisk ***.” People v. Davis, 352 Ill. App. 3d 576, 581 (2004). As the
United States Supreme Court cautioned in establishing the constitutionality of what is now
known as a Terry stop, that determination “becomes meaningful only when it is assured that
at some point the conduct of those charged with enforcing the laws can be subjected to the
more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a
particular search or seizure in light of the particular circumstances.” Terry, 392 U.S. at 21.
The factors asserted by the State, unsubstantiated by the evidence, support neither the stop
nor the frisk.
¶ 61 According to the State, Officer Anderson’s testimony provided sufficient detail to
warrant a finding of fact that the location of the defendant’s detention is a “high crime area.”
The full testimony of Officer Anderson on the issue of “high crime area” amounted to
answers he gave to two questions, all of which I set out below.
“Q. And how would you describe the area that he was walking in?
A. It’s a high violence, high narcotics trafficking area.
Q. Have you yourself made arrests in that area for those things before?
A. Yes, I have.”
¶ 62 If we are to give meaning to this court’s holding in People v. Harris, 2011 IL App (1st)
103382, ¶ 14, that “[a] conclusory and unsubstantiated statement that a location is a ‘high
crime area’ is insufficient to establish that consideration for purposes of justifying a Terry
stop,” then the officer’s answers in this case were insufficient to establish the “high crime
area” factor. If all it takes is for the testifying officer to say he has made “arrests” in that area
to transform his testimony to something more than a blanket claim of the location being in
a “high crime area,” then all residents of that community are afforded less constitutional
protection than the residents of a community where police patrol less frequently. To accept
as sufficient the officer’s testimony in this case removes the substance from this court’s
decision in Harris.
¶ 63 In Harris, this court examined the sufficiency of an officer’s testimony that the
investigative stop occurred in a high crime area, against the backdrop of federal authority that
cautioned against blanket acceptance of such testimony. See United States v. Wright, 485
F.3d 45, 53-54 (1st Cir. 2007) (in the context of rejecting the district court’s “backward
reasoning” from the recovery of a gun to reasonable suspicion, the federal court of appeals
vacated the factual finding of a high crime area in the absence of any discussion by the
district court of some combination of three considerations to establish such a finding as
supported by the cited cases). In this case, the testimony of the officer is emblematic of the
experience of the presiding judge in Harris: “ ‘I am waiting for the first block in Chicago
that’s not considered *** [a] high crime area.’ ” Harris, 2011 IL App (1st) 103382, ¶¶ 13-14;
see People v. Surles, 2011 IL App (1st) 100068, ¶ 39 (“We join our brethren [in Harris] in
rejecting such conclusory and self-serving statements, because they are overbroad and largely
irrelevant, without some specific facts known to the police that tie defendant to the crime in
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the area.”); United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (“The
citing of an area as ‘high-crime’ requires careful examination by the court, because such a
description, unless properly limited and factually based, can easily serve as a proxy for race
or ethnicity.”).
¶ 64 I submit that an officer’s claim to have made arrests in the area of the Terry stop, whose
boundaries he failed to provide, suggests nothing more than he is doing his job. See People
v. Davis, 352 Ill. App. 3d 576, 580 (2004) (circuit court concluded that three or four arrests
did not transform a location into a high crime area), cf. People v. Lee, 214 Ill. 2d 476, 486
(2005) (“[T]he fact, by itself, that the officers found defendant in a certain area, without any
overt act by defendant, does not establish probable cause for warrantless arrest.”). In fact, had
the testifying officer not made “arrests” in the area of his patrol, setting aside the unknown
time frame of when those arrests occurred, then it would call into question whether police
resources were being effectively deployed.
¶ 65 The deficiency in the “high crime area” testimony of the officer is best illustrated by its
contrast with the officer’s testimony in In re F.R., 209 Ill. App. 3d 274 (1991). In that case,
the officer testified that the precise intersection where he observed the juvenile F.R. was “a
known drug trafficking area and that he [had] observed drug transactions occurring at that
intersection approximately 25 times.” Id. at 275-76. The officer also testified “that in the six
months before the hearing, he had made about a dozen arrests there.” Id. at 276. We upheld
the finding by the presiding judge in F.R. that a lawful Terry stop occurred because in
addition to other observations, it was supported by the “high crime area” factor as the
officer’s testimony plainly established. “In light of the fact that, from [the testifying officer’s]
experience, he knew drug transactions occurred at this corner with juveniles walking up to
parked cars, the events of this case could lead him to reasonably suspect that the respondent
was committing or was about to commit a crime.” Id. at 280. By contrast, the testimony
elicited by the State in the instant case provided no objective basis for the presiding judge
to echo the officer’s testimony that the location of the defendant’s stop and frisk was a high
crime area. While a finding of fact by the circuit court is entitled to deference, “this deference
does not require a mindless rubber stamp.” People v. Hernandez, 312 Ill. App. 3d 1032, 1037
(2000).
¶ 66 I also find the characterization of the defendant’s behavior as described by the officer as
“a little erratic” because the defendant “began speaking before we even asked any questions,
moving his arms, flailing about, moving backwards,” offers little to meet the State’s burden
that reasonable suspicion of criminal activity was present. Wardlow, 528 U.S. at 123-24. The
officer failed to articulate any suspicion of criminal activity that attached to the defendant’s
behavior. See People v. Smith, 331 Ill. App. 3d 1049, 1054-55 (2002) (defendant’s behavior
of backing away from officers and refusing to remove hands from pockets did not justify a
Terry stop). Nor do I accept the State’s premise that the defendant’s unwillingness to, in
effect, assume the position by placing his hands on the hood of the police car can serve to
justify the forcible detention of the defendant. That the defendant repeatedly removed his
hands from the police car and pointed and flailed his arms suggests nothing more than a
protest of the officers’ conduct. It was the State’s burden to demonstrate the officers had
articulable suspicion of criminal conduct before they could lawfully command that the
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defendant do as they directed. “The conduct constituting the stop under Terry must have been
justified at its inception.” People v. Thomas, 198 Ill. 2d 103, 109 (2001).
¶ 67 Importantly, the State makes no claim that the observed behavior of the defendant was
evasive or suggested possible flight. It does contend, however, that the defendant’s conduct,
which it characterizes as “bizarre” because it purportedly lacked adequate explanation,
justified the stop and frisk by the officers. The State summarizes the situation confronting
the officers: “[T]here was something not quite right with defendant and the officer had every
reason to believe that defendant was armed and a danger to the officer and the public at
large.” That the defendant was “moving backward” when he was aggressively confronted by
police is hardly conduct suggesting criminal activity afoot to warrant a forcible detention.
See City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (plurality op.) (“We have expressly
identified this ‘right to remove from one place to another according to inclination’ as ‘an
attribute of personal liberty’ protected by the Constitution.” (quoting Williams v. Fears, 179
U.S. 270, 274 (1900))); Smith, 331 Ill. App. 3d at 1054-55 (defendant’s behavior of backing
away from officers and refusing to remove hands from pockets did not justify a Terry stop).
¶ 68 Nor does the Supreme Court’s decision in Wardlow offer any support for the State’s
position in this case. The focus of the Wardlow decision centered on the significance of flight
as a factor in assessing reasonable suspicion under the totality of the circumstances.1 As
made clear by the record in this case, while the defendant presumably could have run, he
never did. Notably, the State presents this court with no case that upheld a Terry stop and
frisk with facts similar to those of the instant case where no flight occurred. Wardlow
certainly is not such a case and numerous appellate court decisions have held that unusual
behavior by a citizen upon being approached by an officer does not, in and of itself, suggest
that criminal activity is afoot. See, e.g., People v. Linley, 388 Ill. App. 3d 747, 748 (2009)
(observation by officer that “it appeared as if [defendant] was considering to run” because
he was “backing away from the truck” and displayed “suggestive body language” did not
justify an investigative stop, even when the area is known for frequent criminal activity
(internal quotation marks omitted)); Davis, 352 Ill. App. 3d at 581 (“defendant’s nervousness
did not create a reasonable belief that he was armed and dangerous”); People v. Thompson,
337 Ill. App. 3d 849, 855 (2003) (“Nervousness on the part of a defendant when a police
officer approaches is not enough to create a reasonable suspicion of criminal activity.”);
Smith, 331 Ill. App. 3d at 1054-55 (defendant’s behavior of backing away from officers and
refusing to remove hands from pockets did not justify a Terry stop); People v. Simac, 321
Ill. App. 3d 1001, 1003 (2001) (officer’s testimony that the defendant made “furtive”
movements and “odd movements toward the passenger seat” and that the officer had to ask
the defendant several times to stand on the sidewalk before he complied all failed to support
the State’s claim of reasonable suspicion of criminal activity). In fact, the concern expressed
1
In fact, the dissent in Wardlow noted that the State of Illinois requested the Court “announce
a ‘bright-line rule’ authorizing the temporary detention of anyone who flees at the mere sight of a
police officer.” Wardlow, 528 U.S. at 126 (Stevens, J., concurring in part and dissenting in part,
joined by Souter, Ginsburg, and Breyer, JJ.). Had such a per se rule been announced, it would have
no application to the facts of this case.
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by one court resonates here: “In our view, the fourth amendment protections of personal
security and freedom would be severely undermined if the police were permitted to stop
those individuals whose behavior was deemed to be of an ‘unusual’ nature rather than a
criminal one.” People v. Dionesotes, 235 Ill. App. 3d 967, 970 (1992). The testifying officer
was never asked by the State to articulate what about the defendant’s conduct caused him to
suspect criminal activity.
¶ 69 Ultimately, the majority’s decision lowers the bar set by Terry for police-citizen
encounters in Illinois. Should an officer deem a citizen to act a “little erratic” or too nervous
and should the officer have made prior arrests in the area to permit his or her testimony that
the stop occurred in a “high crime area,” forcible detention may follow when the citizen acts
in any way that falls short of full compliance with the officer’s directions, even when there
is little to justify the commands of the officer that the citizen place his hands on the hood of
the squad car. Under the authority of this case, a citizen now may be lawfully handcuffed and
his person and separate possessions patted down without an objective showing that
reasonable articulable suspicion of criminal activity exists and, further, that the officer
reasonably believed the citizen to be armed and dangerous, which numerous other decisions
of this court have made clear is required under our constitutions.
¶ 70 In sum, under my view of the facts of this case, the stop of the defendant was
unsupported by reasonable suspicion of criminal activity based on the two factors asserted
by the State. The State’s high crime showing in this case, which amounted to two simple
statements by the testifying officer, failed to establish that the location where the defendant
was stopped and frisked was a high crime area such that it could properly be considered for
purposes of justifying a Terry stop. Harris, 2011 IL App (1st) 103382, ¶ 14. The perceived
bizarre conduct of the defendant did not permit the officer to frisk the defendant for “officer
safety” when no objective showing was made that the defendant was armed and dangerous.
Terry, 392 U.S. at 21. In other words, the testifying officer did not articulate “any specific
fact which would have led a reasonably prudent person in the circumstances to have been
‘warranted in the belief that his safety or that of others was in danger.’ [Citations.]” People
v. Galvin, 127 Ill. 2d 153, 174 (1989) (quoting Terry, 392 U.S. at 27); see F.R., 209 Ill. App.
3d at 279 (though the Terry stop was justified, the frisk was not, where “[t]he record [was]
devoid of any other facts which would provide a basis to reasonably invoke a protective
search” (emphasis added)); Davis, 352 Ill. App. 3d at 581 (“defendant’s nervousness did not
create a reasonable belief that he was armed and dangerous”). Neither the stop nor the frisk
was justified under the facts of this case. “Under Terry, the question of whether a stop is
valid is a distinct and separate inquiry from whether a frisk is valid.” Galvin, 127 Ill. 2d at
163; compare 725 ILCS 5/107-14 (West 2008) (showing required for a Terry stop), with 725
ILCS 5/108-1.01 (West 2008) (a Terry frisk may be performed when an officer “reasonably
suspects that he or another is in danger of attack”).
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