THIRD DIVISION March 19, 2014

No. 1-12-2275

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. . ) No. 11 CR 3843 ) LAMONT BOSWELL, ) Honorable ) Maura Slattery-Boyle, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Lamont Boswell was convicted of two counts of

possession of a controlled substance. Due to his criminal history, he was sentenced to an

extended term of five years in prison. On appeal, defendant contends that the trial court erred in

denying his motion to suppress evidence because the police lacked reasonable suspicion to stop

and frisk him and that, therefore, his conviction must be reversed. In the alternative, defendant

contends that he must receive a new trial because he represented himself without receiving any

of the admonishments required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).

¶2 Because we find that the protective pat-down of defendant was improper, we reverse the

denial of defendant's motion to suppress and, in turn, reverse his conviction. No. 1-12-2275

¶3 BACKGROUND

¶4 Defendant was arrested in Chicago on February 11, 2011. After the State charged him

with two counts of possession of a controlled substance (heroin and codeine), defendant filed a

motion to suppress evidence. In the motion, defendant argued that the police discovered physical

evidence during the course of an unlawful search of his person, and thus, the evidence should be

suppressed.

¶5 At the hearing on the motion, defendant called one of the arresting officers, Chicago

police officer Daniel Prskalo. Officer Prskalo testified that he had been a police officer for 15

years and had witnessed over 100 hand-to-hand narcotics transactions. Officer Prskalo testified

that about 2 p.m. on the day in question, he and his partner, Officer Daniel Gomez, were outside

their unmarked vehicle when they were approached by a woman they did not know. The woman

told the officers that a man was selling narcotics at Cottage Avenue and 43rd Street and that she

had purchased narcotics for her own use. She did not tell the officers what kind of narcotics she

had purchased or when she had purchased them. The woman gave a description of the seller that

included his race, height, weight, approximate age, skin complexion, and clothing, but Officer

Prsalko did not testify to the specific details of that description. The details of the description

were also not included in the arrest report.

¶6 Officer Prskalo and his partner, who, Prskalo testified, was driving, went to the identified

location, which Officer Prskalo characterized as "a known area of narcotic sales based upon the

past in my experience." As they approached, Officer Prskalo saw defendant, who matched the

description provided by the woman. Officer Prskalo saw defendant clasp hands with a man. He

did not see the exchange of money or any other object. Based upon the information received

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from the woman and defendant's actions and location, Officer Prskalo believed that a hand-to-

hand narcotics transaction had taken place. Officer Prskalo further agreed that based on his

experience, he knew that "drugs and guns go together," and that it was a reasonable inference

that people dealing drugs on street corners may also be in possession of weapons.

¶7 Officer Prskalo testified that he and his partner drove past, made a U-turn, and stopped

their vehicle. They approached defendant, who was on the sidewalk. Defendant did not attempt

to walk or run away and did not make any furtive movements. The officers identified

themselves as police, explained why they were at the location, and told defendant they were

going to conduct a pat-down. Officer Prskalo agreed that the purpose of the pat-down was for

officer safety. After Officer Prskalo began the pat-down, defendant admitted to him that he had

"blows," or heroin, on his person. Officer Prskalo then continued the pat-down, during which he

recovered suspected heroin, 20 pills contained in a cigarette box, and $191. The officers placed

defendant under arrest.

¶8 Following argument, the trial court denied defendant's motion to suppress. In doing so,

the trial court found that the Terry stop was justified because officers had "reliable and accurate

information," and that the Terry frisk was justified because the officers observed what they

believed to be a drug transaction. The trial court also stated that defendant's statement during the

pat-down that he had drugs on his person provided "further probable cause."

¶9 Subsequently, defendant filed a motion to reconsider, which the trial court denied. The

court specifically stated that there was no violation of the fourth amendment and that the Terry

stop was "good."

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¶ 10 At a status hearing on October 13, 2011, the trial court noted that defendant had filed a

pro se motion to reconsider the denial of the motion to suppress. Defense counsel informed the

court that he had explained to defendant that the motion had already been denied. He had also

told defendant he must represent himself if he wished to file his own motions. The trial court

asked defendant if he wanted to proceed pro se, and defendant indicated he did. The court

stated, "That's fine. You are going to be held to the same standard as [defense counsel and a

senior law student]. You are not a licensed lawyer. Your motion is already stricken. We have

litigated it. We are setting it for jury." After a date was selected, the trial court twice reminded

defendant that he would be representing himself and stated that the public defender was allowed

to withdraw.

¶ 11 At trial, Officer Prskalo testified consistent with his testimony at the hearing on the

motion to suppress, adding some detail. He testified that the woman who spoke to him and his

partner told them she previously bought narcotics from defendant. She also described defendant

as wearing a camouflage jacket, and defendant was wearing such a jacket when the officers

spotted him. Officer Prskalo testified that defendant was engaged in conversation with another

man on the sidewalk and that the men's hands were clasped. He testified that he asked defendant

"a question or two," at which time defendant admitted having a bag of heroin in his right upper

pocket. He stated that he told defendant he was going to search the pocket. Officer Prskalo

found suspected heroin in the pocket. Further search resulted in his finding 20 codeine pills in

defendant's left upper jacket pocket.

¶ 12 On cross-examination, Officer Prskalo stated that when he approached defendant, he

conducted a pat-down for officer safety, defendant's safety, and the safety of citizens in the area.

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He stated that then, after defendant related that he had heroin in his pocket, he asked defendant if

he could search the pocket.

¶ 13 Chicago police officer Daniel Gomez testified that he had been a police officer for 16

years and had observed narcotics transactions and made narcotics arrests hundreds of times.

About 2:30 p.m. on the day in question, he and Officer Prskalo were in their unmarked squad car

when they were approached by a woman who told them that a black man about 55 or 60 years

old, between 5 feet 5 inches and 5 feet 8 inches tall, weighing around 150 to 170 pounds, and

wearing a green camouflage outfit was selling narcotics on the 4300 block of Cottage Avenue.

The woman stated that she had a drug habit and would usually go to that area to purchase

narcotics. The officers drove to the area and saw defendant, who matched the given description,

about one-half to three-quarters of a block away. Officer Gomez testified Officer Prskalo, not

he, was driving the vehicle. Defendant was in an area known for narcotics activity. Officer

Gomez stated that he saw defendant engage in a hand-to-hand narcotics transaction with another

individual. He saw some money being exchanged, but could not see what, if anything, defendant

handed to the other individual, who then walked away. Officer Gomez related to Officer Prskalo

that he "just noticed a hand-to-hand transaction occurred." Officer Prskalo made a U-turn.

¶ 14 Officer Gomez testified that he and his partner got out of their car, approached defendant

on foot, and conducted a field interview. He described what happened next: "Officer Prskalo

approached him, asked him if he had any sharp objects on him or contraband when Officer

Prskalo was doing the protective pat-down; at which time, [defendant] stated that he had one

blow on him, which is a term for heroin." After defendant made this statement, Officer Prskalo

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recovered a bag of suspected heroin from defendant's right jacket pocket. A further search

resulted in the recovery of a cigarette box containing 20 pills of suspected codeine.

¶ 15 The State's final witness was a forensic scientist, who testified to the proper chain of

custody of the narcotics. She also testified that the laboratory results indicated the substances

recovered from defendant tested positive for heroin and codeine. Defendant presented no

witnesses and did not testify.

¶ 16 The jury found defendant guilty on both counts of possession of a controlled substance,

and the trial court entered judgment on the verdict. Defendant made a motion for a new trial,

challenging the reliability of the officers' testimony and arguing that Officer Prskalo had no

probable cause to search his pocket. The trial court denied the motion. Subsequently, the trial

court sentenced defendant to an extended term of five years in prison.

¶ 17 ANALYSIS

¶ 18 On appeal, defendant contends that the trial court erred in denying his motion to suppress

evidence because the police lacked reasonable suspicion to stop and frisk him. He argues that

Officer Prskalo did not have a reasonable articulable suspicion that he was engaged in criminal

activity or was armed, and therefore, the recovered evidence was the fruit of an unlawful seizure

and search and should have been suppressed. Defendant asserts that the officers were not

credible witnesses, as they offered inconsistent testimony with regard to several topics, including

which of them was driving their car, whether they were inside or outside of the car when the

woman approached them, which of them saw the hand-to-hand transaction, whether currency

was visibly exchanged, and at what point defendant told them he had drugs in his pocket. He

argues that these inconsistencies are material because they cast doubt on whether the police

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received an anonymous tip at all, and because they pertain to the only alleged conduct that

corroborated the purported tip. Finally, defendant asserts that because there is no basis for his

conviction without the recovered evidence, his conviction should be reversed outright.

¶ 19 The State argues that the officers had reasonable suspicion to stop and frisk defendant,

and that, after defendant stated that he had "blows" in his pocket, they had probable cause to

arrest him and search his pockets incident to arrest. The State does not argue that probable cause

existed prior to defendant's admission that he was in possession of narcotics.

¶ 20 An appeal from a trial court's ruling on a motion to suppress presents mixed questions of

fact and law. People v. McDonough,

(2010). We accord great deference

to the trial court's factual and credibility determinations and will disturb them only if they are

against the manifest weight of the evidence. McDonough,

; People v.

Luedemann,

(2006). However, we review de novo the trial court's ultimate

determinations with respect to probable cause or reasonable suspicion, as well as the trial court's

application of the facts to the law to determine whether suppression is warranted under the facts

presented. McDonough,

; People v. Johnson,

(2010).

¶ 21 A police officer may stop a person for temporary questioning if the officer reasonably

infers from the circumstances that the person is involved in criminal activity. Terry v. Ohio,

(1968); 725 ILCS 5/107-14 (West 2010). When an officer justifiably believes that the

individual whose suspicious behavior he is investigating at close range is armed and dangerous,

the officer may also conduct a pat-down search to determine if the individual is carrying a

weapon. Terry,

; People v. Sorenson,

(2001). Authority to

make a Terry stop does not automatically confer authority to conduct a Terry frisk. People v.

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Linley,

(2009); People v. Galvin,

, 163 (1989)

("Under Terry, the question whether a stop is valid is a distinct and separate inquiry from

whether a frisk is valid."). While there is no requirement that the officer be absolutely certain

that the individual is armed, a reasonably prudent person in the officer's circumstances must be

warranted in believing that his safety or that of others was in danger. Terry,

;

Sorenson,

. The officer must be able to point to particular facts that justify the

frisk. Linley,

.

¶ 22 While defendant makes persuasive arguments regarding the lack of justification for the

Terry stop, that determination ultimately rested on the trial court's assessment of the credibility

of Officer Prskala's testimony. "When a court's ruling on a motion to suppress involves factual

determinations and assessments of credibility, we may not disturb the ultimate ruling unless it

[is] manifestly erroneous." People v. DeLuna,

(2002). See also People v.

Sorenson,

(2001) (trial court is in best position to observe witnesses and

weigh credibility). Therefore, we assume for purposes of this opinion that the Terry stop was

justified.

¶ 23 But, as noted, we must assess separately whether the Terry frisk was justified. Even

assuming the stop of defendant was justified by the combined circumstances of the informant's tip

and the hand-to-hand transaction witnessed by the officers, neither officer articulated particular

facts to support a belief that defendant was armed or to give rise to a justifiable fear for their

safety or the safety of others. We are mindful that at the hearing on the motion to suppress,

Officer Prskalo agreed with the prosecutor's leading questions, "In your 14 years [of] experience

as a police officer, do you know drugs and guns to go together?" and "Is it a reasonable inference,

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officer, that those dealing drugs on street corners may also be in possession of weapons?"

However, Terry requires more than a general belief that drug dealers may carry weapons before a

pat-down may be conducted. People v. Marcella,

; People v.

Rivera,

(1995). "[T]he mere fact that an officer believes drug dealers

carry weapons or narcotic arrests involve weapons is insufficient alone to support reasonable

suspicion to justify a Terry frisk." Rivera,

. Were the law otherwise, every

Terry frisk of an individual in an area known for narcotics transactions could be justified on that

basis alone. But no case so holds.

¶ 24 DeLuna, relied on by the State, does not compel a different result. In DeLuna, officers

who were executing a search warrant for drugs in an apartment observed defendant exit a vehicle

outside the building, reach into the rear of the vehicle and retrieve a gray, "'brick-size kilo-type

package,'" which he then put in the waistband of his pants under his shirt. DeLuna,

. When defendant a short time later knocked on the door of the apartment, one of the

officers conducted a pat-down search and recovered the package, later determined to contain

cocaine.

The officer did not observe defendant with a weapon or articulate any concrete

basis upon which to conclude that defendant was armed. The officer did, however, testify at trial

that he performed the pat-down search for his safety.

. The court rejected

defendant's contention that because the officer's pat-down search was for the purpose of

recovering contraband, not weapons, his motion to suppress should have been granted.

¶ 25 This case presents a very different scenario. Here, even crediting the testimony that one

of the officers observed money changing hands, there is no evidence in the record that either

officer observed any drugs, much less a large quantity of drugs, in defendant's possession.

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Further, the defendant in DeLuna arrived at the very location where officers had probable cause

to believe drugs would be found and in possession of a package that, in the officer's experience,

appeared to contain drugs. Here, in contrast, defendant was merely standing on a public street

and neither officer observed him in possession of any quantity of drugs. Finally, the quantity of

drugs observed by the officer in DeLuna could lead a reasonable officer to believe that the

individual possessing them was likely to be armed and the officer, in fact, testified, that he

conducted the pat-down for his safety. But in this case, other than Officer Prskala's one-word

agreement with the prosecutor's suggestion that "drugs and guns go together," Officer Prskalo

frisked defendant based only on a suspicion that he was involved in a drug transaction and,

therefore, may have been armed. There is no evidence that (1) defendant engaged in any furtive

movement, (2) the officers observed any bulges in defendant's clothing, or (3) defendant

attempted to walk or run away. Further, the officers were on a public street during daylight

hours. The evidence in this case does not support any articulable suspicion that a protective pat-

down was necessary. See Rivera,

.

¶ 26 The protective pat-down of defendant was improper. Accordingly, the evidence

recovered as a result of the search should have been suppressed and we reverse the judgment of

the circuit court denying defendant's motion to suppress. Without the suppressed evidence, the

State cannot prove beyond a reasonable doubt that defendant possessed heroin or codeine.

Therefore, we reverse defendant's conviction outright and vacate his sentence. Linley,

.

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¶ 27 Given our disposition, we need not address defendant's alternative contention that he

should be granted a new trial because he represented himself without receiving any of the

admonishments required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).

¶ 28 Reversed. Sentence vacated.

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