FIFTH DIVISION May 29, 2015

No. 1-13-1307

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 2825 ) VERNON SMITH, ) Honorables ) Evelyn B. Clay and James B. Linn, Defendant-Appellant. ) Judges Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant was convicted of aggravated unlawful use of a weapon

(AUUW) (720 ILCS 5/24-1.6 (West 2010)) and unlawful use of a weapon by a felon (UUWF)

(720 ILCS 5/24-1.1 (West 2010)). The trial court subsequently sentenced defendant to

concurrent terms of nine years in the Illinois Department of Corrections.

¶2 Defendant appeals, arguing that: (1) the trial court erred in denying his motion to quash

his arrest and suppress evidence because defendant's "furtive movements" did not support a

reasonable inference that he was armed and dangerous; (2) defendant's convictions for AUUW

and UUWF violate the one-act, one-crime rule; (3) defendant's conviction for UUWF violates

the second amendment (U.S. Const., amend. II); (4) defendant's sentence for AUUW violates the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11); and (5)

the mittimus should be corrected to reflect 450 days of presentence credit and that defendant was

found guilty of counts I and V. No. 1-3-1307

¶3 Following a traffic stop in February 2011, a firearm and ammunition were found in

defendant's vehicle. Defendant was arrested and subsequently indicted on multiple counts of

AUUW and UUWF. Prior to trial, defendant filed a motion to quash his arrest and suppress

evidence. In his motion, defendant argued that his conduct prior to his arrest "would not

reasonably be interpreted by the arresting officers as constituting probable cause that [defendant]

had committed or was about to commit a crime."

¶4 The trial court conducted a hearing on defendant's motion in July 2011. At the hearing,

Baretta Thomas testified that he was in the passenger seat of defendant's car at approximately

1:30 a.m. on February 5, 2011. Defendant was driving Thomas home. Thomas stated that the

roads were slippery due to recent snowfall and defendant "slid" through the stop sign at 73rd

Street and University Avenue. Thomas said that defendant pulled over immediately after the

police activated their lights. Two officers approached the vehicle and one asked defendant for

his driver's license and insurance. Thomas testified that the officers then removed Thomas and

defendant from the car. The men were handcuffed together. The officers then searched the car.

Thomas stated that defendant was calm and cooperative with the police officers. On cross-

examination, Thomas admitted he was asleep during the incident and did not know if defendant

stopped at the stop sign. Thomas stated on redirect that he was awake when the police turned on

their lights.

¶5 Officer Perez testified for the State. He stated that on February 5, 2011, he was on

routine patrol with a partner in uniform in a marked squad car. He was the driver and Officer

Hagen was in the passenger seat. Officer Perez was driving westbound on 73rd when he

approached a four-way stop with University. He observed a Buick LeSabre make a left turn

from University onto 73rd without stopping at the posted stop sign. Officer Perez stated that he

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could see the rear brake lights on the car but did not see the lights on. He did not see "any pause

at that intersection." At that point, Officer Perez "followed the vehicle for a couple of blocks and

curbed it."

¶6 After the vehicle stopped, Officer Perez approached on the driver's side. He identified

defendant as the driver. As he approached, he "observed [defendant] making a furtive movement

towards the rear of the passenger seat." He stated that he saw defendant "reach with his right

hand towards the rear of the front passenger seat." Officer Perez stated there were streetlights in

the area and the headlights of his vehicle and a spotlight were directed at the stopped vehicle.

¶7 Officer Perez asked defendant to step out of the vehicle and he detained him. Officer

Perez testified that there was also a person in front passenger seat. He stated that the passenger

was asleep and his partner woke the passenger by banging on the door. Both men were asked to

step behind the car and Officer Perez called for additional squad car assistance. He then returned

to the vehicle and searched in the area where he observed defendant reach and he discovered a

.25-caliber handgun with a purple Crown Royal bag containing live ammunition.

¶8 On cross-examination, defense counsel asked Officer Perez when he "put [his] lights on

after the stop sign," and Officer Perez answered, "It wasn't until I – a couple of blocks before I

curbed the vehicle." Defense counsel also asked, "When you curbed the vehicle, [defendant]

pulled over immediately, is that fair to say?" Officer Perez responded, "Yeah." Officer Perez

stated that when he approached the vehicle, he did not see a firearm in defendant's hand and that

he never saw a firearm in defendant's hand. He said he was approximately three feet away when

he observed defendant reaching for the back of the front passenger seat, but he had a clear view

through the window. He estimated that defendant's movements lasted three to four seconds.

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¶9 Officer Perez described defendant as quiet and he followed the officer's direction and was

not argumentative. When asked why he asked defendant step out of the car, Officer Perez

answered, "for officer safety."

¶ 10 After hearing evidence and arguments, the trial court requested the parties submit

additional briefing on the motion. In August 2011, the trial court denied defendant's motion to

quash his arrest and suppress evidence. The court made the following findings on the record.

"[I]t was a police car chasing a person. And the circumstances of

that is [sic] as they are approaching this car, there is this furtive

movement. The person is aware of an officer approaching***.

And the officers are aware that they had to trail someone for

something – the stop wasn't right away. And I think that's part of

the situation is the circumstances of the stop. And these types of

cases are analyzed and determined whether or not – what the

actions whether or not the officers took was appropriate under the

law. And the court *** finds that it was. That being seeing that

movement after giving chase, in uniform, but clearly a police car,

movement toward the rear of the car there. And that they did a

search and that weapon was recovered in the back area there

towards where he made the furtive movement.

The court finds, of course, the stop was valid because of the

traffic incident. But the stop was valid. And then they were

approaching to do this interview pursuant to the stop rather and the

evidence that defendant seeks to suppress is – was recovered."

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¶ 11 Defense counsel tried to clarify to the trial court that no chase occurred when defendant

was pulled over, but the State disagreed. The court found that "[t]here was a chase however

short. Under those circumstances, they come to this car. And the driver is gesturing, making a

furtive movement toward the rear of the car as the officers are approaching from the rear." The

court held that the officers' actions were constitutional.

¶ 12 A jury trial was conducted before a different trial judge in March 2013. Officer Perez's

testimony was substantially similar to his testimony at the suppression hearing. Officer Perez

stated that after he observed defendant disregard the stop sign, he "proceeded to get behind the

vehicle and eventually we curbed him." The prosecutor asked Officer Perez, "By 'curbed,' do

you mean you activated the lights and sirens?" Officer Perez responded, "Yes. We activated the

lights and then he pulled to the side, pretty much curbed." On cross-examination, Officer Perez

stated when he turned on his lights, the vehicle "curbed right away."

¶ 13 Officer Perez again testified that as he approached defendant's vehicle, he observed

defendant "with his right hand with a shoving motion to the front passenger rear pouch *** of

the seat." Officer Perez stated that he called for assistance and one unit arrived at the scene as he

and his partner were moving defendant and Thomas to the rear of the car. Officer Perez then

returned to defendant's vehicle and searched the pouch of the passenger seat. He recovered a

loaded firearm and 16 rounds of live ammunition in a Crown Royal bag.

¶ 14 Officer Hagen testified that on February 5, 2011, he was on routine patrol and assigned

with Officer Perez. Officer Hagen was the passenger in the marked squad car. He testified

consistent with Officer Perez's description of the traffic violation. He stated that after they

observed the vehicle disregard the stop sign, Officer Perez drove behind the vehicle and they ran

the vehicle's license plate and then they curbed the vehicle.

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¶ 15 As he approached the vehicle from the passenger side, Officer Hagen observed defendant

"trying to hide something" with his right hand in the rear pouch of the front passenger seat.

When Officer Hagen approached the passenger side, he saw an individual who appeared to be

sleeping in the passenger seat. Officer Hagen knocked on the window to wake the passenger.

He escorted the passenger out of the vehicle and brought him to the rear of the vehicle. He

observed Officer Perez search where it appeared defendant may have hidden something. Officer

Perez recovered a firearm and ammunition, which he showed to Officer Hagen.

¶ 16 The State also presented documents from the State indicating: (1) defendant has never

been issued a firearm owner's identification card, (2) a 1998 Buick LeSabre was registered to

defendant, and (3) defendant's prior felony conviction for AUUW. The State then rested.

Defendant moved for a directed finding, which the trial court denied. Defendant rested without

presenting any additional evidence.

¶ 17 Following deliberations, the jury found defendant guilty of one count of AUUW and one

count of UUWF. At the subsequent sentencing hearing, the trial court imposed concurrent terms

of nine years' imprisonment for each count.

¶ 18 This appeal followed.

¶ 19 Defendant first argues that the trial court erred in denying his motion to quash his arrest

and suppress evidence. Specifically, defendant contends that the trial court's conclusion that a

chase occurred was erroneous and that a furtive movement alone was not sufficient to support a

reasonable inference that defendant was armed and dangerous. The State maintains that it was

reasonable for Officer Perez to believe that defendant was dangerous and may be able to gain

immediate control of a weapon.

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¶ 20 In reviewing a trial court's ruling on a motion to suppress, this court applies a de novo

standard of review. People v. Sorenson,

(2001); see also Ornelas v. United

States,

(1996). However, findings of historical fact will be reviewed only for

clear error and the reviewing court must give due weight to inferences drawn from those facts by

the fact finder. Ornelas,

. Accordingly, we will accord great deference to the

trial court's factual findings, and we will reverse those findings only if they are against the

manifest weight of the evidence; however, we will review de novo the ultimate question of the

defendant's legal challenge to the denial of his motion to suppress. Sorenson,

.

"Further, the reviewing court may consider evidence adduced at trial as well as at the

suppression hearing." People v. Richardson,

(2009).

¶ 21 "Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of

individuals to be free from unreasonable searches and seizures." People v. Colyar,

(citing U.S. Const., amend. IV and Ill. Const. 1970, art. I, § 6). "This court has

explained that '[t]he "essential purpose" of the fourth amendment is to impose a standard of

reasonableness upon the exercise of discretion by law enforcement officers to safeguard the

privacy and security of individuals against arbitrary invasions.' " Id. (quoting People v.

McDonough,

(2010), quoting Delaware v. Prouse,

(1979)).

¶ 22 "It is well settled that not every encounter between the police and a private citizen results

in a seizure." People v. Luedemann,

(2006) (citing Immigration &

Naturalization Service v. Delgado,

(1984)). "Courts have divided police-

citizen encounters into three tiers: (1) arrests, which must be supported by probable cause; (2)

brief investigative detentions, or ‘Terry stops,’ which must be supported by a reasonable,

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articulable suspicion of criminal activity; and (3) encounters that involve no coercion or

detention and thus do not implicate fourth amendment interests." Luedeman,

(citing United States v. Black,

(7th Cir. 1982) and United States v. Berry,

(5th Cir. 1982)). "In Terry, the Court held that a brief investigatory stop, even in

the absence of probable cause, is reasonable and lawful under the fourth amendment when a

totality of the circumstances reasonably lead the officer to conclude that criminal activity may be

afoot and the subject is armed and dangerous." Colyar,

(citing Terry v.

Ohio,

(1968)). "For a stop to be justifiable under Terry, the officer must present

specific, articulable facts which would cause a reasonable person to fear for his safety or the

safety of others." People v. Anderson,

(1999). "Absent such

circumstances, a warrantless search is unreasonable and the testimony by an officer that he

subjectively feared for his safety, standing alone, does not satisfy this requirement."

"When

reviewing the officer's action, we apply an objective standard to decide whether the facts

available to the officer at the time of the incident would lead an individual of reasonable caution

to believe that the action was appropriate." Colyar,

, ¶ 40.

¶ 23 The Supreme Court in Michigan v. Long,

(1983), extended Terry to

include:

"the search of the passenger compartment of an automobile,

limited to those areas in which a weapon may be placed or hidden,

is permissible if the police officer possesses a reasonable belief

based on 'specific and articulable facts which, taken together with

the rational inferences from those facts, reasonably warrant' the

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officer in believing that the suspect is dangerous and the suspect

may gain immediate control of weapons."

¶ 24 The Supreme Court noted that this conclusion was compelled by the fact that "roadside

encounters between police and suspects are especially hazardous, and that danger may arise from

the possible presence of weapons in the area surrounding a suspect." Id.. However, "[a]s in

Terry, ' "[t]he issue is whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger." ' " Colyar,

(quoting Long,

, quoting Terry,

).

¶ 25 Here, the trial court denied defendant's motion based on defendant's furtive movement

toward the rear pouch of the passenger seat paired with a short chase prior to defendant pulling

over for the police. However, we disagree with the trial court's finding that a chase occurred in

this case.

¶ 26 The testimony from the suppression hearing showed that Officer Perez observed

defendant make a left turn from University onto 73rd without stopping at a posted stop sign.

Officer Perez testified on direct that after he observed the vehicle disregard the stop sign, he

"followed the vehicle for a couple of blocks and curbed it." Further, on cross-examination,

defense counsel asked Officer Perez when he activated the lights after the stop sign, and the

officer answered that "it wasn't until [he] -- a couple of blocks before [he] curbed the vehicle."

He then answered in the affirmative when asked if the vehicle pulled over immediately when he

curbed it.

¶ 27 Based on Officer Perez's testimony, we find that he used the term "curbed" to describe

the point in time when he activated the lights to pull over defendant. Officer Perez's testimony

established that he followed behind the vehicle for two blocks before he "curbed" it. The

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testimony does not support a finding that defendant ignored the police's attempt to curb his

vehicle for two blocks. Additionally, Officer Perez's trial testimony clarifies that "curb" was

when he "turned on the lights and we curbed him." Officer Perez stated that he did not turn the

lights on when the vehicle turned in front of him, but he followed the vehicle for "around a

block." Officer Hagen testified consistently, stating that he ran defendant's license plate before

the vehicle was curbed. Since the testimony at both the suppression hearing and at trial show

that defendant immediately pulled over when the officers activated the lights, the trial court's

factual finding at the suppression hearing that a chase occurred is against the manifest weight of

the evidence.

¶ 28 Having concluded that defendant did not attempt to evade the police officers, the

remaining basis for Officer Perez's search of the vehicle was defendant's furtive movement

toward the rear pouch of the passenger seat. When approaching defendant's vehicle, Officer

Perez testified that he observed defendant reach toward the rear pouch of the passenger seat. He

did not see a firearm in defendant's hand nor did he testify that the weapon appeared in plain

view. During the traffic stop, defendant was quiet and compliant with the officer's requests. It is

uncontested that the police officers had a basis for the initial traffic stop after defendant failed to

stop. Defendant complied when Officer Perez asked him to exit the vehicle. When asked on

redirect why he asked defendant to step out of the vehicle after seeing defendant reach toward

the rear of the front passenger seat, Officer Perez stated, "for officer safety." Officer Perez did

not offer any articulable basis for searching the vehicle.

¶ 29 "Although furtive movements may be considered justification for performing a

warrantless search when coupled with other circumstances tending to show probable cause

[citations], looks, gestures, and movements taken alone are insufficient to constitute probable

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cause to search since they may be innocent [citation]." People v. Creagh,

(1991). " '[T]o constitute probable cause for an arrest or search, a "furtive gesture" such

as a motorist's act of bending over inside his car must be invested with guilty significance either

by specific information known to the officer or by additional suspicious circumstances observed

by him.' " People v. Collins,

(1977) (quoting Gallik v. Superior Court of

Santa Clara County,

(Cal. 1971)).

¶ 30 We find the decision in People v. Brown,

(1989), instructive. There,

the defendant was pulled over after speeding on Interstate 290. "As the officer approached the

vehicle, he saw defendant was behind the steering wheel and another person was in the front

passenger seat. Defendant reached up toward the dashboard with his right hand and then down

to the floor on the passenger's side. The officer did not see any object in defendant's hand."

. The defendant complied with the officer's request for his license and to step out of the

vehicle. The officer conducted a pat-down search of the defendant and felt a hard object in a

jacket pocket. The defendant moved his hand toward his pocket, but the officer stopped him,

ordered him to put his hands on the vehicle, and pulled his service weapon.

The officer

searched the defendant and found keys, sunglasses, matches, and two rolled cigarettes. The

officer also searched the vehicle and found a radar detector on the floor by the passenger seat.

When asked if he observed anything unusual about the defendant prior to the pat-down, the

officer only noted the movement from the dash to the floor and he did not see anything in the

defendant's hand.

The trial court found that the officer had no lawful basis to search the

defendant and suppressed the evidence.

.

¶ 31 The reviewing court affirmed, rejecting the State's reliance on the defendant's movement

in his vehicle to justify the search. "If vague movements within a traffic violator's vehicle are

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considered sufficient, without other facts suggesting possible danger to the officer, to conduct

even a limited search of the violator's person, similar unwarranted police intrusions of this nature

would surely be generated."

.

¶ 32 In Creagh, the defendant was stopped for a routine traffic violation and subsequently

charged with possession of a controlled substance. At the hearing on the defendant's motion to

suppress, the police officer testified that he observed the defendant shift in his seat as if the

defendant was putting something in his pants. The officer did not see the defendant's hands, just

the movement of the defendant's upper body. Creagh,

. The officer

asked the defendant to step out of the vehicle and told the defendant of the movement he

observed. The defendant stated he moved a check onto the dashboard. The officer observed a

bulge in the defendant's pocket and he conducted a pat-down search. He felt that the bulge was

soft and did not appear to be a firearm, and he recovered several small bags of a white powder.

The trial court denied the defendant's motion.

¶ 33 On appeal, the reviewing court held that the trial court erred in denying the defendant's

motion to suppress evidence. The court found that the police officer lacked probable cause to

search the defendant's pants pocket. "Even if defendant's movements may be characterized as

'furtive,' there was no evidence of other circumstances tending to show probable cause.

[Citation.] Consequently, defendant's act of putting something in his pants pocket can clearly be

viewed as innocent, and the search cannot be justified on this basis."

. The court noted

that the officer did not testify that he was in fear for his safety and there was no evidence to show

that the officer reasonably believed that the defendant may have been armed and dangerous.

¶ 34 In Collins,

, the defendant was charged with possession of a substance

containing cannabis following a traffic stop for failing to stop at a stop sign. The officer testified

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at the hearing on the defendant's motion to suppress that he followed the defendant for a block

and then activated his lights. The defendant continued for another half of a block before pulling

over by a curb and parking outside his home. The officer stated that he saw the defendant lean

forward and to the right, reaching over the passenger seat. When the officer reached the car, he

asked the defendant to step out of the vehicle and stand near the rear of the car. The officer then

walked toward the passenger side and observed a brown paper bag. The officer opened the door,

took the bag, and opened it, finding three plastic bags of cannabis. The trial court granted the

defendant's motion to suppress evidence.

.

¶ 35 The reviewing court affirmed, concluding that "[a]s far as the record shows, defendant's

car was searched only because he bent down after stopping. If we were to hold that such conduct

constituted probable cause, then almost every motorist stopped for a violation of the traffic laws

would be subject to having his person and automobile searched by the arresting officer."

.

¶ 36 In the instant case, the articulated basis for searching defendant's car was that Officer

Perez observed defendant reach toward the rear of the passenger seat. Defendant was quiet and

compliant. When asked why he asked defendant to step out of the vehicle, Officer Perez simply

stated, "for officer safety," but offered no other specific or articulable facts to support his belief

that he feared for his safety. He never saw a firearm in defendant's hand. It is clear that the only

basis used for the search was defendant's movement in the vehicle. Under an objective review,

we find that based on defendant's movement in the car, there was no reasonable basis for Officer

Perez to engage in a search of defendant's vehicle. Accordingly, we hold that the trial court erred

in denying defendant's motion to quash arrest and suppress evidence.

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¶ 37 Because we have found that defendant's motion to quash arrest and suppress evidence

should have been granted, we need not reach the other issues raised on appeal.

¶ 38 Based on the foregoing, we reverse the trial court's denial of the motion to quash arrest

and suppress evidence. We therefore reverse defendant's conviction and vacate his sentence.

See People v. Trisby,

. We do so because prior to the recovery of

the firearm during the unlawful search, no evidence existed that the charged offenses of AUUW

and UUWF had occurred.

¶ 39 Reversed.

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