No. 1-18-2170 Opinion filed April 13, 2022 Third Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18 CR 3154 ) FRANCISCO LOZANO, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court. Justice Ellis specially concurred, with opinion. Presiding Justice Gordon dissented, with opinion.

OPINION

¶1 Following a bench trial, defendant, Francisco Lozano, was found guilty of burglary and

possession of burglary tools and was sentenced to a total of three years’ imprisonment. On appeal,

defendant argues that the trial court erred in denying his pretrial motion to suppress evidence that

officers recovered from him during a stop and frisk pursuant to Terry v. Ohio,

(1968),

and in denying his midtrial motion to suppress his statements to those officers, who questioned

him on scene without providing warnings under Miranda v. Arizona,

(1966). No. 1-18-2170

Defendant also argues that the State failed to prove him guilty of both counts beyond a reasonable

doubt. We affirm.

¶2 I. BACKGROUND

¶3 Defendant was charged with one count of burglary (720 ILCS 5/19-1(a) (West 2018)),

which alleged that he knowingly and without authority entered a 2005 Toyota Camry belonging

to Jenelly Cherrez with intent to commit theft on February 20, 2018. The count of possession of

burglary tools (id. § 19-2(a)) alleged that defendant knowingly possessed a screwdriver with intent

to enter a motor vehicle and commit theft.

¶4 A. Suppression Hearing

¶5 Prior to trial, defendant filed a motion to suppress a car stereo, two screwdrivers, and a

wallet that arresting officers recovered from his person. Defendant argued that the officers did not

have reasonable suspicion to stop or frisk him under Terry.

¶6 At the suppression hearing, Chicago police officer Eulalio Rodriguez testified that he was

on duty as a tactical officer on February 20, 2018. At 1:39 p.m., Rodriguez and his partner, Officer

Jennifer Soto, were driving an unmarked police vehicle southbound on the 500 block of North

Kedzie Avenue. Rodriguez saw defendant, whom he identified in court, running “at a fast rate of

speed” toward Kedzie Avenue with his hands either inside or holding the front pocket of his

sweatshirt. It was raining that day. Rodriguez made a U-turn and saw defendant run up a stairway

and try to enter an abandoned apartment building. Rodriguez approached defendant and ordered

him to stop; defendant stopped on the stairway. As Rodriguez approached defendant, he saw a “big

bulge” in defendant’s front sweatshirt pocket. Rodriguez stopped defendant “[t]o conduct a field

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interview, ask him why he was running *** it was a street stop because he had a bulge and I was

trying to see what was the bulge.”

¶7 Rodriguez ordered defendant to remove his hands from the front pocket of his sweatshirt,

but defendant “kept his right hand in his pocket.” Rodriguez believed that defendant’s pocket

might contain a weapon, so he conducted a pat-down of the pocket and felt a “rectangular square

box, which is a radio.” He then reached into defendant’s front sweatshirt pocket and recovered a

car stereo, two screwdrivers, and a wallet. The officers asked defendant where he lived, and the

address that he provided was not the address of the building he attempted to enter. Soto tried to

enter the building but saw that there was no door handle. Rodriguez and Soto continued

investigating and discovered “the ID for the victim.” Defendant was eventually arrested.

¶8 The parties stipulated that Soto was on duty on the 500 block of North Kedzie Avenue at

1:39 p.m. on February 20, 2018. She was wearing a body camera that was functioning; she

activated it, and it recorded video. The video truly and accurately depicts this incident. Defendant

moved Soto’s body camera video into evidence.

¶9 The video depicts Soto seated in the front passenger seat of a police vehicle. The sky is

gray, the vehicle’s windshield wipers are activated, and there are water droplets on the windshield.

The vehicle makes a U-turn, drives for approximately 15 seconds, and stops. No Mars lights are

visible, and no siren can be heard. Soto exits the front passenger side of the vehicle and walks

around the rear. Defendant is wearing a blue hooded sweatshirt and standing alone on a stairway

leading to a two-flat apartment building. A piece of plywood is where the building’s front door

would be, and an empty lot is to the left of the building. Defendant’s back is toward the building,

his right hand is raised, and his left hand appears to be in the front pocket of his sweatshirt.

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Rodriguez approaches defendant; their lower bodies are partially obscured by a fence and a trash

can.

¶ 10 Rodriguez puts his hand on defendant’s upper back and escorts him toward the police

vehicle as both officers order him to take his hand out of his pocket. A large bulge in defendant’s

front sweatshirt pocket is visible as he walks toward the police vehicle. Defendant supports the

weight of the bulge with his right hand. Wires with a white plastic cap protrude from the bottom

of defendant’s sweatshirt. Defendant removes his left hand from his pocket, and the officers place

both his hands on the hood of the police vehicle. The following exchange occurs:

“RODRIGUEZ: Where you going? You just saw me, then you turned back.

DEFENDANT: I’m going back in the house.

RODRIGUEZ: OK, give me your f*** hands.”

The officers handcuff defendant behind his back, and the exchange continues:

“RODRIGUEZ: What you got on you?

DEFENDANT: Nothing, sir.

RODRIGUEZ: All right, so who lives right here at this house?

DEFENDANT: My friend.

RODRIGUEZ: What am I gonna find?”

¶ 11 Rodriguez reaches into defendant’s front sweatshirt pocket and retrieves a brown wallet

and a screwdriver. He then lifts the front of defendant’s sweatshirt and recovers a black box with

a screen. A small red cut is visible on the outer pinky side of defendant’s left hand. Soto asks

defendant why his hands are bleeding, but his response is inaudible. She also asks for his

identification; he states that he does not have identification “right now.” Defendant provides his

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name, date of birth, and home address to Soto in response to her requests for that information. 1

Soto uses the computer in the police vehicle, and the following exchange occurs:

“SOTO: This is some chick’s stuff.

RODRIGUEZ: Yeah. He said he found it.

SOTO: Bulls***. He comes up revoked, he’s on parole. I’m trying to see—ask him

if he ever lived on West Montano. West Montano.

RODRIGUEZ: Did you ever live on West Montano? He said no.

SOTO: I think he stole this from a car.” 2

¶ 12 Soto exits the vehicle and says, “He’s clear, but he’s on parole.” Rodriguez is standing next

to defendant, who is still in handcuffs, at the front of the vehicle. The following exchange occurs:

“SOTO: Where’d you take the radio from?

DEFENDANT: I didn’t take it; somebody just gave it to me.”

Soto asks defendant who lives at the apartment building, but his response, if any, is inaudible. Soto

approaches the apartment building and knocks on a front window. No one responds. The plywood

in the doorframe has a round lock but a hole where the doorknob would be. Soto returns to the

police vehicle, and the video ends.

¶ 13 Defendant argued that Rodriguez did not have reasonable suspicion to stop him or probable

cause to search him because he did not flee from the officers, there were “a multitude of reasons

why he would be running,” and “[i]t’s not a crime to carry a bulky object on your person.” The

1 Defendant stopped playing the video for the trial court at this point. However, he moved the entire video into evidence, and the entire video is in the record on appeal. 2 “Montano” is a phonetic approximation of the street name that Soto says.

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State contended that the officers had “probable cause to stop” defendant because they saw him

“running down an abandoned lot,” he tried to enter an abandoned building when their vehicle made

a U-turn in his direction, and he refused to remove his hand from his pocket.

¶ 14 The trial court denied defendant’s motion to suppress. The court found Rodriguez credible

and reasoned that defendant “attract[ed] his attention by running with some kind of big bulge” in

his clothing, then running toward an abandoned building after the officers made a U-turn toward

him. The court concluded that behavior, coupled with defendant’s refusal to show his hands,

justified Rodriguez’s stop and search of defendant.

¶ 15 B. Trial

¶ 16 At trial, the State adopted the testimony from the suppression hearing, and Rodriguez

testified consistently with his testimony at that hearing. He also testified that he asked defendant

where he got the car stereo and that defendant stated that he got it at Ferdinand Street and Pulaski

Road. Rodriguez also asked defendant where he got the wallet; defendant stated that he found it

an alley. Defendant was handcuffed when Rodriguez questioned him, and Rodriguez did not advise

defendant of his Miranda rights. During Rodriguez’s testimony, defendant moved to suppress his

on-scene statements about the radio and the wallet because he did not receive Miranda warnings.

The court denied this motion, explaining that it was “not sure that Miranda attache[d]” when

Rodriguez questioned defendant.

¶ 17 Rodriguez identified photographs of the stereo, the wallet, and the screwdrivers, and the

State moved the photographs into evidence. The photographs depict two screwdrivers with black

handles; the shafts of the screwdrivers are wrapped in brown paper. The wallet is brown with a

zipper and the logo “Diesel.” The stereo is a black box with a screen and the logo “Pioneer.”

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Rodriguez also identified an overhead map of the area, which the State moved into evidence. On

the map, Rodriguez indicated that he stopped defendant on West Franklin Boulevard, just west of

the intersection with Kedzie Avenue, seven to eight blocks east of Pulaski Road.

¶ 18 Officer Soto testified that she was on duty at approximately 1:30 p.m. on February 20,

2018, and was involved in the stop of defendant, whom she identified in court, on the 500 block

of North Kedzie Avenue. After defendant was stopped, Rodriguez searched him and recovered a

wallet. Soto looked through the wallet and found a student identification belonging to Jenelly

Cherrez at George Westinghouse College Prep high school, near the location defendant was

stopped. Soto went to the school and spoke with Cherrez.

¶ 19 Jenelly Cherrez testified that she attended George Westinghouse College Prep starting at 8

a.m. on February 20, 2018. She drove a gray 2005 Toyota Camry to school and parked it

approximately half a block away from the intersection of Franklin Boulevard and North Kedzie

Avenue at 7:45 a.m. Cherrez left her wallet and purse in the vehicle. Cherrez’s father’s friend

owned the Camry at the time, but Cherrez and her parents later purchased it from him. Cherrez did

not know defendant and did not give anyone permission to enter the Camry or possess her wallet

or the car radio.

¶ 20 At approximately 2 p.m., Cherrez met with Soto, who showed her a wallet. Cherrez

confirmed that the wallet was hers. She then led Soto to where the Camry was parked and saw that

“the window was broken and the radio was out and the glove compartment where [her] wallet was

open.” Cherrez had left her wallet in the center console, which was open when she saw the vehicle

in the afternoon. She had left her purse on the rear passenger seat that morning, but in the afternoon,

she saw it on the floor in front of the passenger seat. Cherrez identified photographs of her wallet,

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her car stereo, and the Camry as it appeared on the afternoon of February 20, 2018. The State

moved these photographs into evidence. The photographs depict a gray sedan with its front

passenger-side window covered by black plastic. Shattered glass is on the front passenger seat,

and the center console is open. The vehicle’s stereo is missing from the dashboard, and wires are

visible where the stereo would be. A purse is on the front passenger-side floor of the vehicle.

¶ 21 In closing, the State argued that defendant was stopped within a block of where the Camry

was parked and had the tools and the proceeds of the burglary on his person. Defendant contended

that no witness saw him enter the Camry and that the items could have been taken from it at any

point between 7:45 a.m. and 2 p.m. Defendant also argued that there were no fingerprints, DNA,

or tool mark evidence connecting him to the Camry; thus, there was no evidence that he entered

the vehicle or intended to do so.

¶ 22 The court found defendant guilty of both counts. The court reasoned that the officers found

defendant with “co-mingled stolen property *** with screwdrivers *** that would have been

necessary to complete this particular burglary, particularly the loosening of this radio and pulling

it out of the car.” The court also found that the “stories” defendant provided to the officers were

“not reasonable.”

¶ 23 C. Posttrial and Sentencing

¶ 24 Defendant filed a motion for new trial, which argued in relevant part that the State failed

to prove him guilty beyond a reasonable doubt. He also contended that the court erred in denying

his pretrial motion to suppress evidence and his midtrial motion to suppress his statements. The

court denied this motion.

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¶ 25 The court sentenced defendant to three years’ imprisonment on the burglary count and two

years on the possession of burglary tools count, to run concurrently. Defendant filed a motion to

reconsider sentence, which was denied.

¶ 26 Defendant timely appealed.

¶ 27 II. ANALYSIS

¶ 28 On appeal, defendant challenges the denial of his pretrial motion to suppress evidence, the

denial of his midtrial motion to suppress statements, and the sufficiency of the evidence supporting

his convictions.

¶ 29 A. Motion to Suppress Evidence

¶ 30 Defendant first contends that the trial court should have granted his pretrial motion to

suppress evidence because Rodriguez’s Terry stop of him and the search that produced the car

stereo, wallet, and screwdrivers were unlawful. At a hearing on a motion to suppress, the defendant

has the burden to make a prima facie case that the evidence in question was obtained by an illegal

search or seizure. People v. Brooks,

. Thus, the defendant has primary

responsibility for establishing the factual and legal bases for the motion to suppress.

If the

defendant makes a prima facie case, the burden shifts to the State to present evidence to counter

the defendant’s prima facie case.

The ultimate burden of proof remains with the defendant.

¶ 31 We review the denial of a motion to suppress using a two-part standard. Id. ¶ 21. We give

great deference to the trial court’s findings of fact, which we reverse only if they are against the

manifest weight of the evidence. Id. However, we give less deference to factual findings based on

video evidence because, unlike live witness testimony, a trial court does not occupy a position

superior to the appellate court in evaluating video evidence. People v. Shaw, 2015 IL App (1st)

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123157, ¶ 29. We review de novo whether police had reasonable suspicion to stop and frisk a

defendant (Brooks,

) and whether a defendant’s statements should have been

suppressed (People v. Hunt,

). In reviewing the trial court’s ruling on a

motion to suppress evidence, we consider the evidence adduced at trial as well as at the suppression

hearing. People v. Hannah,

.

¶ 32 1. Terry Stop

¶ 33 Defendant first argues that Rodriguez did not have reasonable suspicion to conduct a Terry

stop of him. Both the United States Constitution and the Illinois Constitution prohibit unreasonable

searches and seizures by police. See U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.

Reasonableness under the fourth amendment generally requires a warrant supported by probable

cause. People v. Thomas,

, 108 (2001). However, under Terry, a police officer may

briefly detain a person for investigatory purposes if the officer reasonably suspects the person has

committed or is about to commit a crime. Id. at 108-09; see also 725 ILCS 5/107-14(a) (West

2018) (“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

***.”). Reasonable suspicion is based on the totality of the circumstances and commonsense

judgments and inferences about human behavior. People v. Timmsen,

.

Officers may rely on their training and experience and make inferences that would elude the

untrained person. People v. Leighty,

(2005). Reasonable suspicion is a

“low bar.” People v. Patel,

.

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¶ 34 We find that Rodriguez had reasonable suspicion to conduct a Terry stop of defendant.

Rodriguez saw defendant running on a rainy day in February, alone, with his hands either in or

holding the front pocket of his sweatshirt. When Rodriguez made a U-turn and drove in defendant’s

direction, defendant ran toward what appeared to be an abandoned apartment building and tried to

enter it. Soto’s body camera recorded Rodriguez stating that defendant “saw [him], then

[defendant] turned back,” suggesting that defendant acted evasively upon seeing the officers.

Defendant’s actions qualified as “strange behavior,” which supports a finding of reasonable

suspicion sufficient to justify the initial Terry stop. See People v. Sadeq,

. At a minimum, Rodriguez could have suspected that defendant was attempting to

break into an abandoned building. As Rodriguez approached defendant, he saw a bulge in the front

pocket of defendant’s sweatshirt. Soto’s body camera video establishes that the bulge was

noticeably larger and shaped differently than defendant’s hands would be on their own, supporting

an inference that one or more objects of considerable size were in his pocket. Altogether, it was

reasonable for Rodriguez to find defendant’s behavior suspicious and to stop him as he was trying

to enter the abandoned building.

¶ 35 Defendant argues that Rodriguez lacked reasonable suspicion to stop him because “any

innocent person could have been running with their hands in their pockets given the cold rain.”

However, the fact that defendant’s behavior was not obviously illegal does not negate reasonable

suspicion. See Illinois v. Wardlow,

(2000). When potentially innocent conduct

can also suggest criminal activity, an investigative stop is justified to “resolve the ambiguity.”

That is what happened here. Defendant’s behavior, while potentially innocent and not obviously

illegal, was also suspicious.

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¶ 36 Defendant contends that the officers did not know that the building he attempted to enter

was abandoned when they stopped him. Based on the body camera video, we believe that it was

reasonable for the officers to think that the building that defendant tried to enter was abandoned.

From a distance, the front doorway appears to be boarded up with a sheet of plywood. No one,

aside from defendant, appears to be in or near the building. The windows are dark. The muddy,

flooded front yard is empty except for a trash can and a rake. The adjoining empty lot contains

garbage. These observations supported a suspicion that the building was abandoned and that

defendant may have been trespassing by attempting to entering it. See 720 ILCS 5/21-3(a)(1)

(West 2018).

¶ 37 Defendant also argues that “the body-cam video contradicts Rodriguez’s rendition of the

facts” because Rodriguez testified that defendant refused to take his right hand out of his pocket

when Rodriguez stopped him, but the video shows defendant’s right hand out of his pocket. That

is true, but it is a minor discrepancy that does not change the reasonable suspicion analysis given

for the totality of the circumstances. The video confirms that defendant kept one hand in his

bulging sweatshirt pocket when Rodriguez approached him and did not remove it until he had been

escorted to the police vehicle. In any event, as discussed below, this behavior is part of what

justified Rodriguez’s frisk of defendant, not what justified the initial Terry stop.

¶ 38 The cases that defendant cites are distinguishable and do not compel a finding that

Rodriguez lacked reasonable suspicion to conduct a Terry stop of defendant. See, e.g., People v.

White,

(no reasonable suspicion where the defendant may

have yelled profanity and spat toward an officer); People v. Williams,

(the defendant’s “mere presence in the high-crime area, standing alone, was not sufficient” to

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support reasonable suspicion); In re Rafeal E.,

(the defendant

walking away from a group of five or six individuals was not “evasive behavior”); People v. Kipfer,

(2005) (the defendant walked away from a police vehicle in a parking

lot); People v. F.J.,

(2000) (officer saw the defendant standing at

the entrance of an alley and put an unknown object in his pocket). Notably, none of these cases

involved a suspect attempting to enter an abandoned building.

¶ 39 The dissent argues that Rodriguez testified to only two reasons for the Terry stop, namely

that defendant was running and had a bulge in his pocket, and that these reasons do not support

reasonable suspicion. Relatedly, the dissent contends that, because the officers did not explicitly

cite defendant’s attempt to enter the abandoned building as a reason for the stop during their

suppression hearing testimony, that fact cannot support our finding of reasonable suspicion now.

The dissent’s view of the reasonable suspicion analysis is too narrow. First, we are not limited to

the officers’ subjective reasons for conducting a Terry stop. See Village of Mundelein v. Marcis,

(2004). “ ‘[T]he fact that the officer does not have the state of mind

which is hypothecated by the reasons which provide the legal justification for the officer’s action

does not invalidate the action taken as long as the circumstances, viewed objectively, justify that

action.’ ” Whren v. United States,

(1996) (quoting Scott v. United States,

(1978)).

¶ 40 Second, defendant did not contest that he tried to enter what appeared to be an abandoned

apartment building. This occurred, as the dissent acknowledges, “[a]fter the officers made a U-

turn” (infra ¶ 103) and before they conducted the Terry stop. These facts were personally observed

by the officers, are in the record, and are not disputed by defendant. There is no indication that the

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trial court found the officers’ unrebutted testimony about their observations to be incredible. Just

because the officers “fail[ed] to mention the suspicion of an immediate break-in as a reason for

stopping defendant” (infra ¶ 104), that does not mean their observations of him just before the

Terry stop are something we have “invent[ed]” (infra ¶ 109). We may affirm the denial of a motion

to suppress on any basis in the record (People v. Hood,

), and the

officers’ observation of defendant’s attempt to enter an abandoned building is in the record, and

that attempt was suspicious and potentially illegal.

¶ 41 The dissent also contends that Wardlow is “as different from this case as a pea from an

elephant.” Infra ¶ 107. We do not analogize the facts of Wardlow to this case. Rather, we cite

Wardlow for the general principle that a defendant’s conduct may both justify a Terry stop and be

“ambiguous and susceptible of an innocent explanation,” as was the case in Terry itself. Wardlow,

. Under Terry, officers can detain suspects to resolve that ambiguity.

The dissent

does not appear to disagree with this general principle, which Illinois courts have repeatedly

affirmed. See, e.g., People v. Neuberger,

(“That there were plausible

innocent explanations for [the defendant’s] conduct does not mean that it was unreasonable to

subject him to the limited intrusion of a Terry stop to investigate those possibilities.”); People v.

Ortiz,

(2000) (“Even when there may be an innocent explanation for

each individual factor considered separately, the factors viewed in combination may constitute

enough reasonable suspicion to warrant further detention.”).

¶ 42 Finally, the dissent notes that “[t]he trial court found that the officer asked defendant to

take his hands out of his pocket before the stop was effected, thereby using defendant’s

noncompliance to bolster suspicion for the stop.” (Emphasis in original.) Infra ¶ 110. We do not

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adopt the trial court’s reasoning on this issue, and we do not use defendant’s noncompliance as a

basis for reasonable suspicion for the Terry stop. Supra ¶ 37 (“[T]his behavior is part of what

justified Rodriguez’s frisk of defendant, not what justified the initial Terry stop.”). Accordingly,

we find that the trial court correctly denied defendant’s motion to suppress evidence to the extent

that it was premised on the lack of reasonable suspicion for the Terry stop.

¶ 43 2. Terry Frisk

¶ 44 Defendant next argues that, even if Rodriguez had reasonable suspicion to stop him, “the

subsequent search exceeded any frisk within the bounds of Terry” because Rodriguez immediately

led defendant to a police vehicle, handcuffed him, and searched inside his sweatshirt.

¶ 45 If a Terry stop is lawful, an officer may frisk the person stopped if the officer reasonably

suspects that the person is armed and dangerous. Arizona v. Johnson,

(2009);

see also 725 ILCS 5/108-1.01 (West 2018) (“When a peace officer has stopped a person for

temporary questioning pursuant to Section 107-14 of this Code and reasonably suspects that he or

another is in danger of attack, he may search the person for weapons.”). A frisk is “a limited

protective search *** of the individual’s outer clothing.” People v. Johnson,

(2009). The purpose of a frisk is to protect the officer’s safety and the safety of others in the

area, not to gather evidence of a crime.

Thus, the frisk must be limited to actions that are

reasonably likely to discover weapons that could be used to harm the officer. People v. Moss,

(2005). If a frisk exceeds that scope, it is no longer lawful, and anything recovered

beyond that point must be suppressed. Johnson,

.

¶ 46 Rodriguez testified that he conducted a pat-down of defendant’s sweatshirt pocket because

he believed defendant’s pocket might contain a weapon. This was a Terry frisk. See

Soto’s

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body camera video shows an obvious bulge in defendant’s sweatshirt pocket, and it shows that

defendant kept his left hand inside his pocket until Rodriguez brought him to the police vehicle.

Rodriguez’s Terry frisk was justified to determine whether defendant was holding a weapon in his

sweatshirt pocket. See People v. Crowder,

(an officer’s

observation of a bulge under a suspect’s shirt “can give rise to the inference that [the suspect] is

armed and presents an immediate danger”); People v. Richardson,

(an officer “ ‘need not be absolutely certain that the individual is armed; the 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.’ ” (quoting Terry,

)). Soto’s body camera video does

not establish when this frisk occurred, but Rodriguez testified that it occurred before he reached

into defendant’s sweatshirt pocket.

¶ 47 When Rodriguez frisked defendant’s pocket, he felt a hard rectangular object. Officers

must have “leeway *** upon the feeling of a hard object of substantial size, the precise shape or

nature of which is not discernible through outer clothing.” (Internal quotation marks omitted.)

People v. Day,

(1990). It was reasonable for Rodriguez to determine

whether the hard object creating a bulge in defendant’s front pocket was a weapon by removing it

to examine it. When a frisk reveals “hard, sizeable objects” and “[t]hese objects could be fairly

viewed as instruments capable of being used as weapons,” under Terry, an officer is “justified in

investigating the exact nature of these objects” by “reaching within [the suspect’s] outer clothing

to secure the objects.” People v. Lee,

(1971). The alternatives—leaving the hard

object in defendant’s pocket or allowing him to remove it on his own—would have been

unreasonable and unsafe. The record contains no evidence that Rodriguez’s purpose was to search

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for anything other than weapons. See Moss,

. Thus, it was reasonable and lawful

for Rodriguez to reach into defendant’s pocket to recover any potential weapons.

¶ 48 The body camera video establishes that Rodriguez recovered a screwdriver from

defendant’s sweatshirt pocket. Rodriguez was justified in doing so because the screwdriver could

have been used as a weapon. Illinois courts “have frequently noted that objects which are not per se

deadly weapons may be used in such a manner as to become deadly weapons” (Day,

), including screwdrivers (see, e.g., People v. Flores,

(2007)).

¶ 49 In addition, Rodriguez was justified in removing the car stereo from underneath

defendant’s sweatshirt because he had probable cause to believe that it was contraband. See People

v. DeLuna,

(2002) (“[i]f an officer, while conducting a lawful pat-down

search, feels an object that he believes is not a weapon but whose shape or weight makes its identity

apparent, he may seize it if he has probable cause to believe that the object is contraband”). A

detached car stereo under defendant’s sweatshirt with dangling wires, coupled with the

screwdrivers, supported a reasonable belief that the radio was evidence of a vehicular burglary.

See Flores,

(the defendant’s possession of car “stereos with loose wiring

harnesses” and a “screwdriver (which is a tool used for car stereo theft)” supported probable cause

to believe that the defendant “had been involved in car-stereo thefts”). Thus, Rodriguez’s frisk of

defendant and recovery of the items from his person did not violate the fourth amendment.

¶ 50 Defendant essentially argues that Rodriguez conducted a custodial search that needed to

be supported by probable cause, not a Terry frisk justified by reasonable suspicion, because he

immediately reached into defendant’s pocket and under his sweatshirt and removed the items that

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he found. We disagree. First, the fact that defendant was handcuffed did not automatically

transform this Terry stop into an arrest and a search incident to arrest that had to be supported by

probable cause. See, e.g., People v. Thornton,

(“The mere restraint

of an individual or act of handcuffing does not transform an investigatory Terry stop into an illegal

arrest.”). As with all fourth amendment issues, the issue is reasonableness. People v. Daniel,

(“When arrest-like measures such as handcuffing are employed [during

a Terry stop], they must be reasonable in light of the circumstances that prompted the stop or that

developed during its course.” (Internal quotations omitted.)). Handcuffing defendant after he was

reluctant to remove his hand from his front pocket was reasonable so the officers could safely

investigate him and what he was doing. It should be noted that only Rodriguez was available to

guard defendant while Soto researched his background and examined the building that defendant

tried to enter.

¶ 51 This is not like the cases that defendant cites in which an officer reached into a suspect’s

pocket after the officer affirmatively determined that it did not contain a weapon. See, e.g.,

Minnesota v. Dickerson,

(1993) (officer recognized an object in the defendant’s

pocket as a bag of crack cocaine and never thought it was a weapon); White,

(officer felt a plastic pill bottle in the defendant’s pocket). Rather, Rodriguez felt a

hard object when he frisked defendant’s sweatshirt pocket and then properly removed the object

to determine whether it was a weapon. He also properly removed suspected contraband from

defendant’s sweatshirt. Accordingly, we find that the trial court did not err in denying’s

defendant’s motion to suppress evidence to the extent that it was premised on an unlawful frisk or

search.

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¶ 52 B. Motion to Suppress Statements

¶ 53 Defendant next argues that the trial court erred in denying his midtrial motion to suppress

his statements regarding the car stereo and wallet because Rodriguez obtained those statements in

violation of Miranda.

¶ 54 The State maintains that defendant forfeited this issue by raising it for the first time during

trial, which is generally improper. We agree. See People v. Causey,

(2003) (a motion to suppress statements shall be made before trial unless an exception applies).

¶ 55 Defendant argues that “it was not clear until trial that the officers interrogated [him] in such

a way that required Miranda warnings” and, therefore, an exception to the forfeiture rule applies.

See 725 ILCS 5/114-11(g) (West 2018) (a motion to suppress statements “shall be made before

trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for

the motion”). Defendant does not explain why it was “not clear until trial” that the officers

questioned him without providing his Miranda rights. On the contrary, defendant himself was

aware that the officers questioned him on scene without providing Miranda warnings. Moreover,

defendant received the video recording from Soto’s body camera in discovery and introduced it at

the suppression hearing. This body camera footage depicts the officers questioning defendant

without providing Miranda warnings, as well as defendant’s responses. Thus, the grounds for a

motion to suppress statements were apparent prior to trial.

¶ 56 The dissent argues that the State failed to object to defendant’s motion to suppress

statements, the trial court properly exercised its discretion in considering the motion, and the State

failed “to prove the error harmless beyond a reasonable doubt.” Infra ¶ 127. However, the dissent

does not explain why the general rule that a motion to suppress must be made before trial does not

- 19 - No. 1-18-2170

apply in this case. Even People v. Humphries,

(1991), which the dissent cites,

recognized that section 114-11 of the Code of Criminal Procedure of 1963 “was enacted by the

Illinois legislature to allow for midtrial motions to suppress in limited circumstances.” (Emphasis

added.)

. As explained above, defendant was aware of the grounds for a motion to suppress

statements before trial but did not file one. We cannot see why an exception to the general rule

requiring pretrial filing should apply here.

¶ 57 The trial court cited two grounds for denying defendant’s motion to suppress statements:

(1) that “[i]t’s a pretrial motion” and the court was “in the middle of trial” and (2) that the court

was “not sure that Miranda attache[d] at that point.” We agree with both. Defendant’s motion to

suppress statements was untimely, and to the extent that the court could exercise its discretion to

consider the untimely motion, Miranda did not apply to the situation at issue. We do not, as the

dissent claims, find that the trial court abused its discretion. Infra ¶ 127. On the contrary, we affirm

the trial court’s judgments. Accordingly, defendant forfeited this issue by not properly raising it in

the trial court.

¶ 58 Nevertheless, defendant requests that we review the denial of his motion to suppress

statements for plain error. Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides that

“[p]lain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the trial court.” “A defendant seeking plain-error review has the burden

of persuasion to show the underlying forfeiture should be excused.” People v. Johnson,

(2010). The plain error doctrine applies when a clear or obvious error occurred and (1) the

evidence is so closely balanced that the error alone threatened to tip the scales of justice against

the defendant or (2) the error is so serious that it affected the fairness of the defendant’s trial and

- 20 - No. 1-18-2170

challenged the integrity of the judicial process. People v. Clark,

, ¶ 42. We review

claims of plain error de novo. Johnson,

. The first step in plain error analysis is

to determine whether a clear or obvious error occurred. People v. Sebby,

.

¶ 59 The fifth amendment to the United States Constitution, which applies to the states under

the fourteenth amendment, provides that “ ‘[n]o person *** shall be compelled in any criminal

case to be a witness against himself.’ ” Hunt,

(quoting U.S. Const., amend.

V). Miranda requires police officers to warn a suspect before a custodial interrogation that (1) he

has the right to remain silent, (2) anything he says can be used against him in a court of law, (3) he

has the right to have an attorney present, and (4) if he cannot afford an attorney, one will be

appointed for him before questioning. Miranda,

. The Miranda Court defined

“custodial interrogation” as “questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any significant way.”

. The central principle of Miranda is that, “if the police take a suspect into custody and then

ask him questions without informing him of the rights enumerated above, his responses cannot be

introduced into evidence to establish his guilt.” Berkemer v. McCarty,

(1984).

However, during a Terry stop, an “officer may ask the detainee a moderate number of questions

to determine his identity and to try to obtain information confirming or dispelling the officer’s

suspicions.”

. Thus, the United States Supreme Court has not held that all Terry stops are

subject to the dictates of Miranda.

. The Miranda Court itself cautioned that

“ ‘[g]eneral on-the-scene questioning as to facts surrounding a crime *** is not affected by our

holding.’ ” People v. Jeffers,

(2006) (quoting Miranda,

).

- 21 - No. 1-18-2170

¶ 60 We are not persuaded that defendant was in custody for the purposes of Miranda when

Rodriguez questioned him about the car stereo and wallet. Although defendant had been detained

and handcuffed pursuant to a Terry stop and was not free to leave, that is not dispositive of whether

he was in custody. See id. at 429. Defendant had not been told that he was under arrest, and the

officers had not used any weapons to detain him. Only two officers were present. The questioning

occurred on a public street, not in a coercive environment such as a police station. See People v.

Briseno,

(2003) (finding that the defendant was not in custody under

Miranda when he was stopped on a “major thoroughfare” and only two officers were in his

“immediate presence”).

¶ 61 The body camera video indicates that Rodriguez asked defendant where he got the wallet

and defendant responded that he found it, within four minutes of the initial Terry stop on the

stairway. Soto asked defendant where he got the stereo within six minutes of the Terry stop. The

time and length of questioning are relevant to determining whether defendant was in custody for

purposes of Miranda. See People v. Slater,

(2008). The span of only four to

six minutes between the Terry stop and the question at issue indicates that the officers’ on-scene

questioning of defendant was part of a noncustodial Terry stop to which Miranda did not apply,

even though some of those questions concerned the suspected burglary. “Miranda is not triggered,

and the admonishments are not required, when police conduct general investigatory on the scene

questioning as to the facts surrounding a crime or other general questioning.” People v. Bowen,

. That is what the officers did in this case. They investigated, by

asking questions, where defendant was going, whether he lived or knew anyone at the building

that he tried to enter, how his hand was injured, and where he obtained two items—a wallet and a

- 22 - No. 1-18-2170

detached car stereo—that did not appear to belong to him. While some indicia of a formal arrest

were present, namely handcuffs, the evidence reflects that the officers were gathering information

when they questioned defendant and had not yet decided to arrest him.

¶ 62 Moreover, holding that the officers were required to give Miranda warnings in this case

would suggest that officers must give Miranda warnings within the first few minutes of a Terry

stop, before they conduct any meaningful investigation. Such a holding would undermine Terry

itself, which recognized “that a police officer may in appropriate circumstances and in an

appropriate manner approach a person for purposes of investigating possibly criminal behavior.”

Terry,

. To this end, Terry allows officers to “ask the detainee a moderate number

of questions to determine his identity and to try to obtain information confirming or dispelling the

officer’s suspicions” without triggering Miranda. Berkemer,

; see also People v.

Lee,

(2005) (Terry allows “temporary questioning”). To the extent that

defendant seeks a time limit for officers to provide Miranda warnings during a Terry stop, we

decline to set one.

¶ 63 The dissent argues that the officers had to provide Miranda warnings because a reasonable

person in defendant’s position would believe that he was being arrested “[a]fter being pulled,

yelled at, handcuffed, and searched to reveal a car radio with dangling wires and screw drivers,

and asked processing questions.” Infra ¶ 125. However, the two most obvious indicia of “formal

arrest” (see Slater,

)—being placed in a police vehicle and transported to a police

station for booking—had not occurred when the officers questioned defendant. We believe that, at

the time the officers questioned defendant, a reasonable person would believe that the officers

were still investigating and deciding whether to formally arrest him. We do not suggest that being

- 23 - No. 1-18-2170

placed in a police vehicle or being transported to a station are necessary for custody under

Miranda. But this case illustrates a situation in which a defendant is not free to leave under the

fourth amendment yet is not in custody for purposes of Miranda and the fifth amendment. We do

not cite Jeffers because it is factually similar to this case but because it recognizes that cases can

fall into an area between a fourth amendment seizure and fifth amendment custody. Jeffers,

. The United States Supreme Court and other Illinois courts recognize this

principle as well. See, e.g., Berkemer,

; People v. Havlin,

(2011). Accordingly, the trial court did not make a clear or obvious error in determining that

Miranda did not apply to this situation, and plain error review is not warranted.

¶ 64 C. Sufficiency of the Evidence

¶ 65 Finally, defendant argues that the State failed to prove him guilty beyond a reasonable

doubt of burglary and possession of burglary tools. Upon a challenge to the sufficiency of the

evidence, we review “whether, viewing the evidence in the light most favorable to the State, ‘ “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” ’ ” People v. Belknap,

(quoting People v. Collins,

(1985)). The trier of fact resolves conflicts in the testimony, weighs the evidence, and draws

reasonable inferences from the evidence. People v. Brown,

. On appeal, we

make all reasonable inferences from the record in favor of the State (People v. Cunningham,

(2004)), and we will not reverse a conviction unless the evidence is

“ ‘unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the

defendant’s guilt’ ” (People v. Jackson,

(2009)).

- 24 - No. 1-18-2170

¶ 66 To prove defendant guilty of burglary, the State had to establish that he knowingly and

without authority entered Cherrez’s vehicle with the intent to commit a theft therein. See 720 ILCS

5/19-1(a) (West 2018). The trier of fact may presume a defendant’s guilt of burglary based on his

exclusive possession of recently stolen property if (1) there is a rational connection between the

defendant’s recent possession of stolen property and his participation in the burglary; (2) the

defendant’s guilt of the burglary “more likely than not” flowed from his recent, unexplained, and

exclusive possession of the proceeds; and (3) there was corroborating evidence of the defendant’s

guilt. People v. Natal,

, 268 (2006). To prove defendant guilty of possession

of burglary tools, the State had to establish that he knowingly possessed tools suitable for breaking

into Cherrez’s vehicle with the intent of committing a theft within. See 720 ILCS 5/19-2(a) (West

2018).

¶ 67 We find that the evidence sufficiently supported defendant’s burglary conviction. First,

there was a rational connection between the burglary and defendant’s possession of Cherrez’s

wallet and the car stereo. Cherrez’s testimony established that both items were taken from the

Camry without her permission on February 20, 2018. Defendant’s possession of them on the same

day, within a block of where the Camry was parked, supported an inference that he took them from

the Camry. Second, defendant’s guilt of the burglary flowed naturally from his possession of the

stolen items. The officers saw defendant running near the location of the burglary with

screwdrivers that he likely used to remove the car stereo. As the officers drove toward defendant,

he attempted to flee into an abandoned building where he did not live. Flight is evidence of

consciousness of guilt and, together with other factors, may support a finding of criminal activity.

People v. Aljohani,

. Finally, the fresh injury to defendant’s hand

- 25 - No. 1-18-2170

and the smashed window of the Camry corroborated his involvement, as they suggested that he

broke the window to get into the Camry. Thus, the evidence was sufficient to find defendant guilty

of burglary.

¶ 68 Similarly, the evidence was sufficient for the trial court to find defendant guilty of

possession of burglary tools, namely, the two screwdrivers. Screwdrivers are tools known to be

used for car stereo theft. See Flores,

. The evidence in this case supported

a straightforward, rational series of events. Defendant smashed the passenger-side window of the

Camry and injured his hand doing so. He used the screwdrivers to pry out the car stereo and took

Cherrez’s wallet from the center console, which he left open. He then ran away from the scene of

the burglary, and the officers stopped him approximately a block away and found both the tools

and the proceeds of the recent burglary in his possession. Thus, the evidence sufficiently supported

both of defendant’s convictions.

¶ 69 Defendant contends that the State failed to prove his guilt because (1) more than six hours

passed between the time Cherrez parked her Camry and the time defendant was arrested, (2) no

eyewitnesses or physical evidence linked defendant to the Camry, and (3) defendant’s statements

to the officers “provided reasonable explanations as to why he was in possession of Cherrez’s car

radio and wallet.” None of these arguments compel reversal.

¶ 70 First, the gap in time between Cherrez parking the Camry and defendant burglarizing it did

not negate the other evidence connecting him to the burglary. On the contrary, as explained above,

the evidence supported a reasonable inference that the officers found defendant shortly after he

committed the burglary. Second, to the extent that defendant complains about a lack of DNA or

fingerprint evidence linking him to the Camry, the absence of such evidence does not contradict

- 26 - No. 1-18-2170

the other evidence linking defendant to the burglary. See People v. Carini,

(1993). Furthermore, the State may prove its case by circumstantial evidence, as it did here. See

People v. Campbell,

(1992). Finally, it is difficult to accept defendant’s

argument that his statements regarding the wallet and the car stereo undermined the State’s proof

of his guilt, given that defendant moved to suppress them during trial and now argues that their

admission was prejudicial to him. Accordingly, we affirm defendant’s convictions for burglary

and possession of burglary tools.

¶ 71 III. CONCLUSION

¶ 72 For the foregoing reasons, we affirm defendant’s convictions.

¶ 73 Affirmed.

¶ 74 JUSTICE ELLIS, specially concurring:

¶ 75 I concur in the judgment for the reasons stated herein. I find the Terry question very close

but ultimately agree that the record supports the validity of the Terry stop. I agree with the dissent

that the officers violated Miranda when they questioned defendant and that it was error to

introduce that testimony, but I would find that error harmless beyond a reasonable doubt under the

circumstances.

¶ 76 I fully agree with the dissent that running across a street—particularly on a cold, rainy

day—with a bulge in one’s pocket is not, alone, sufficient to support a Terry stop. But the record

shows more than those facts. The record also shows that defendant changed direction upon seeing

the police officers.

¶ 77 The trial court found reasonable suspicion based on those facts—that defendant “attracts

[the officer’s] attention” by “running with some big bulge in his pants,” and that when the officers

- 27 - No. 1-18-2170

turned the car around, defendant “runs toward an abandoned building trying to get further away

from the officers.”

¶ 78 Those findings are not against the manifest weight of the evidence. For one, the video

shows clearly that the bulge in the front pouch of defendant’s sweat jacket was considerable. And

the video shows that, after Officer Rodriguez apprehended defendant on the stairs of the abandoned

apartment building, the following exchange occurred between the officer and defendant:

“RODRIGUEZ: Where are you going? ’Cause you saw us and turned back.

DEFENDANT: I was going back in the house.”

¶ 79 It is a more than reasonable inference from this exchange that the officer was asking

defendant why he changed direction—why he “turned back”—upon seeing the officers. Clearly,

defendant thought so because his response was that he was “going back in the house.” But

regardless of what defendant thought, the most reasonable interpretation of the officer’s question,

in context, was that defendant was running in one direction across the street and then, upon seeing

the police officers, turned backward and ran in basically the opposite direction, away from the

police.

¶ 80 Avoiding a police officer, alone, will not provide a reasonable suspicion to support a Terry

stop, as there are “undoubtedly” noncriminal reasons for avoiding law enforcement. Wardlow,

; see People v. Jenkins,

, ¶ 45; People v. Bloxton,

; In re D.L.,

.

¶ 81 But taking steps to evade the police is certainly one factor to be considered, along with

others, to support reasonable suspicion. Wardlow,

; Jenkins,

, ¶¶ 45-46. The fact that defendant, carrying a sizeable bulge in the front pouch of his sweat

- 28 - No. 1-18-2170

jacket, “turned back” upon seeing the police, toward the building where he was ultimately caught,

was minimally sufficient to support a reasonable, articulable suspicion to justify a Terry inquiry.

¶ 82 The dissent believes that the exchange between officer and defendant quoted above was

referring to defendant “turning back” at the top of the stairs after the officer, at the bottom of the

stairs, ordered him to stop. To that, I would respectfully make two observations.

¶ 83 First, if there is more than one reasonable inference to be drawn from the evidence, and we

are reviewing a trial court’s factual findings under a deferential manifest-weight standard, we

cannot say that the trial court manifestly erred in choosing one reasonable inference over another.

People v. Dunmire,

(manifest-weight review of suppression ruling

means we will reverse if “ ‘the opposite conclusion is clearly evident or if the finding itself is

unreasonable, arbitrary, or not based on the evidence presented’ ” (quoting People v. Peterson,

)).

¶ 84 Second and more to the point, I must respectfully disagree with my dissenting colleague

that his interpretation of this exchange is reasonable. In the dissent’s mind, when the officer asked

defendant why he “turned back” when he saw the police, what the officer meant was, why did he

turn back at the top of the stairs—instead of entering the house—when Officer Rodriguez ordered

him to stop. I cannot imagine why the first question out of the visibly angry officer’s mouth would

be asking a suspect why he complied with the officer’s command, instead of fleeing into the house.

Defendant did what the officer ordered him to do; asking defendant why he complied would be an

odd question to ask, much less the first thing an officer would ask.

- 29 - No. 1-18-2170

¶ 85 It is far more likely that the officer was asking defendant, in effect, why he ran from the

police upon seeing them—exactly the type of question one would expect an officer to ask during

a Terry stop to confirm or dispel the officer’s suspicion of criminal activity.

¶ 86 So while I am sympathetic to much of what the dissent argues and consider this question

to be close, I concur with the lead opinion that the record is minimally sufficient to support the

Terry stop here.

¶ 87 I agree with the dissent and depart from the lead opinion, however, on the Miranda

question. Initially, I agree with the dissent that we should not find this issue forfeited, for the

reasons the dissent gives: the trial court considered it on the merits, and thus we should review it

on the merits.

¶ 88 On those merits, I agree with the dissent that, when defendant was questioned about the

car stereo and woman’s wallet while being handcuffed, he was subjected to a custodial

interrogation that triggered Miranda warnings.

¶ 89 First, the questions put to defendant about how he came to be in possession of the car stereo

and wallet obviously constituted an interrogation—questions reasonably likely to elicit an

incriminating response. Rhode Island v. Innis,

(1980); People v. Olivera,

(1995). Indeed, most Terry inquiries involve interrogations; that is their very

purpose, to confirm or dispel whether the suspect is engaged in criminal activity.

¶ 90 But not all Terry stops require Miranda warnings, of course, because the individual being

questioned is not always in “custody.” In the context of traffic or street stops, the question of

“custody” is whether the individual being detained is “subjected to restraints comparable to those

associated with a formal arrest.” Berkemer v. McCarty,

(1984).

- 30 - No. 1-18-2170

¶ 91 The lead opinion correctly notes that the use of handcuffs to restrain a subject does not

automatically mean that the subject is in “custody.” See People v. Colyar,

(“handcuffing does not automatically transform a Terry stop into an illegal arrest”); Jenkins,

, ¶ 65. For example, an officer may need to handcuff detainees while searching

a vehicle to conduct the Terry search itself, and it would be dangerous for officers to turn their

backs on multiple individuals while conducting that search, particularly when the detainees

outnumber the officers. See Colyar,

. At that point, there is no basis to arrest

those individuals; the search has not yet even taken place; the handcuffing is purely for officer

safety.

¶ 92 But that does not describe this case. After finding defendant in possession of a car stereo

with the wires still protruding, along with tools commonly associated with burglary and a woman’s

wallet, the officers had ample reason to believe that defendant had committed the crime of theft or

burglary when they handcuffed defendant. They then proceeded to hold him, handcuffed, for over

five minutes while one of the officers ran a search of defendant inside the car. The time of the

handcuffing alone is not dispositive, of course, but the entire episode had moved far beyond a mere

Terry stop by the time the officers questioned him substantively.

¶ 93 That is not to say that the officers had no right to handcuff defendant—perhaps they did—

only that having done so, under these circumstances, their treatment of defendant was comparable

to a formal arrest, and they were thus required to give defendant Miranda warnings before

engaging in substantive questioning. The admission of defendant’s statements to the police in

violation of Miranda was error.

- 31 - No. 1-18-2170

¶ 94 But the admission of a defendant’s statements in violation of Miranda does not warrant

reversal of the underlying conviction if the State can demonstrate that the error was harmless

beyond a reasonable doubt. People v. R.C.,

(1985); see In re D.L.H.,

(admission of involuntary statement to police is subject to harmless-error

analysis). Of course, the “use of a defendant’s physically coerced confession as substantive

evidence of his guilt is never harmless error.” (Emphasis in original.) People v. Wrice,

. But there is no claim here of physical coercion, so the harmless-error analysis for

constitutional errors, such as Miranda violations, is appropriate.

¶ 95 Here, any error in introducing evidence of the defendant’s response to the improper

custodial interrogation was harmless beyond a reasonable doubt. This is not a case where the

defendant confessed to the crime in response to the improper custodial interrogation. That would

make this case more difficult, as “ ‘a confession is the most powerful piece of evidence the State

can offer, and its effect on a jury is incalculable.’ ” People v. Simpson,

(quoting R.C.,

).

¶ 96 Defendant did not admit to any crime in response to the improper custodial interrogation.

He merely gave an alternative explanation for how he came into possession of the car stereo and

the victim’s wallet. True, the court found that explanation lacking in credibility, and that did not

help matters for defendant, but the evidence of his guilt was airtight, as explained in the lead

opinion. Whether the trial court did or did not hear defendant’s incredible explanation would not

possibly have impacted the verdict. The error was thus harmless beyond a reasonable doubt. I

concur in the judgment.

¶ 97 PRESIDING JUSTICE GORDON, dissenting:

- 32 - No. 1-18-2170

¶ 98 Our courts are required to decide cases based on the evidence presented and the existing

law, even when a defendant is a thief. In the case at bar, the police officers lacked reasonable

suspicion to make a stop after viewing a man running in the rain on a February day in Chicago,

with a bulge in the pocket of his sweatshirt. As a result, I must respectfully dissent.

¶ 99 In the case at bar, we do not have to guess why the officer, who effected the stop, believed

that he had a reasonable, articulable suspicion justifying a stop. At the suppression hearing, he was

specifically asked “[w]hy were you trying to stop” defendant. The officer testified that he effected

the stop of defendant for two reasons. The officer observed (1) defendant running (2) with a bulge

in his pocket. When asked for the reason for the “street stop,” the officer testified that he wanted

to know “why he was running” and “to see what was the bulge.” Neither the officer nor his partner

testified, either at the suppression hearing or the trial, that defendant changed direction upon

observing the police. Video footage establishes that, immediately after defendant ascended the

stoop of an abandoned building and turned back toward the approaching officer, the officer

observed, “[y]ou just saw me and you turned back.” The record establishes that the officer stopped

defendant solely based on the fact that he was running in the rain on a February day with a bulge

in his pocket.

¶ 100 We do not have to guess at precisely which moment the stop occurred, because the officer

testified to that also. The officer testified that, when he approached defendant on foot, defendant

was not free to leave. After the officer stopped defendant, the officer, who was physically much

larger than defendant, immediately grabbed defendant by the back of his sweatshirt, while

simultaneously yelling “show me your f*** hands” and pulling defendant toward the police

vehicle, where defendant was shoved against the back hood of the police vehicle, handcuffed,

- 33 - No. 1-18-2170

searched, interrogated, and asked processing questions, such as his full name, date of birth, and

address.

¶ 101 The record before us establishes that, prior to the stop, defendant was running in a cold

rain, with his hands in his sweatshirt’s front pocket. He did not start running when he observed the

officers; rather, they observed him when he was already running.

¶ 102 After observing defendant already running, the officers made a U-turn in an unmarked

vehicle. They did not testify that there was anything about their vehicle to indicate that they were,

in fact, police officers. A video clip of the incident, introduced as an exhibit at the suppression

hearing, does not show that the police activated either their siren or Mars lights prior to the stop. 3

¶ 103 After the officers made a U-turn, they observed defendant trying to seek shelter in an

abandoned building.

¶ 104 The lead opinion finds, without any support from the evidence, that the officers “could

have” suspected that defendant was attempting “to break into” the abandoned building and cites

in support the statutory section governing the offense of criminal trespass. Supra ¶¶ 34, 36 (citing

720 ILCS 5/21-3(a)(1) (West 2018)). But the officers never testified to that. Not only did the

officers fail to mention the suspicion of an immediate break-in as a reason for stopping defendant,

but the cited section specifically exempts from prosecution anyone who enters an abandoned

building and then cleans up litter there or repairs it. 720 ILCS 5/21-3(d) (West 2018). And, in fact,

3 The State concedes in its brief to this court that the officers did not activate either a siren or Mars lights prior to their stop of defendant.

- 34 - No. 1-18-2170

defendant made absolutely no attempt to break and enter, and the officers on the scene did not

mention that as a reason for their suspicion. 4 That came without any support from the evidence.

¶ 105 The lead opinion writes that “the dissent contends that, because the officers did not

explicitly cite defendant’s attempt to enter the abandoned building as a reason for the stop,” it

“cannot support our finding of reasonable suspicion.” Supra ¶ 39. To be clear, defendant made no

attempt whatsoever to break into the building and turned away from the closed door. This does not

support a reasonable suspicion of any criminal activity.

¶ 106 The lead opinion cites the United States Supreme Court case of Whren for the proposition

that an officer’s stated reason for a stop does not matter. Supra ¶ 39. In Whren, the defendant

argued that, even though the officer’s given reason for a stop was a traffic violation, the stop was

actually a pretext to search for drugs. Whren,

. The Whren Court found that an

“ulterior motive[ ]” will not invalidate the officer’s given reason, so long as the given reason is

valid. Whren,

. In other words, the officer’s given reason is what matters.

¶ 107 The lead opinion concedes that “defendant’s behavior” was “potentially innocent” and “not

obviously illegal” and cites in support Wardlow for nonetheless finding a reasonable suspicion.

(Emphasis added.) Supra ¶ 35 (citing Wardlow,

). Wardlow is as different from

this case as a pea from an elephant. In Wardlow, the United States Supreme Court found the

officers had a reasonable suspicion where the officers testified (1) that the defendant was in a high

crime neighborhood “known for heavy narcotics trafficking” and (2) that the defendant started

4 This court has found that, “in committing a criminal trespass to property, the fundamental criminal act is the actual unlawful entry on the property of another.” (Emphasis added.) People v. Likar,

(2002). Thus, every fact that the lead opinion cites as evidence of the building’s abandonment (supra ¶¶ 9, 12, 34, 38) is a reason why this was likely not criminal trespass and also may be why the officers never voiced it as a basis for their suspicion.

- 35 - No. 1-18-2170

running immediately upon noticing “a four-car caravan” of police vehicles suddenly enter the area.

Wardlow,

. By contrast, in the case at bar, (1) there was no testimony at all that

this was a high crime area, and (2) defendant was already running when the police first observed

him, and there is no evidence whatsoever that he was running because he observed the police. In

fact, the evidence shows that the vehicle that the police were driving was not a marked police

vehicle.

¶ 108 In Wardlow, when the officers first observed the defendant, he was standing still; it was

when he looked at them that he suddenly decided to run. Wardlow,

. By contrast,

defendant did not start running upon noticing a police presence; rather, the police first observed

him as he was running. Wardlow undercuts the lead opinion’s finding rather than supporting it.

¶ 109 Not only did the officers fail to testify that they were in a high crime neighborhood, they

also failed to testify that they had a suspicion of a particular crime, as in the seminal case of Terry

v. Ohio,

(1968) (the officer had a reasonable suspicion to believe that the

suspects were “ ‘casing’ ” a particular store in order to rob it). Although the lead opinion tries to

invent suspicion of a crime for them (breaking and entering), it was not a crime that the officers

testified to suspecting. The lead opinion dismisses all of defendant’s cited cases as distinguishable

because none “involved a suspect attempting” to break into and enter a nearby building. Supra

¶ 38. However, that was not the articulated reason for this stop either, as the evidence shows.

¶ 110 The trial court found that the officer asked defendant to take his hands out of his pocket

before the stop was effected, thereby using defendant’s noncompliance to bolster the suspicion for

the stop. However, the trial court’s finding flips the order of the two events: (1) effecting the stop

and (2) asking defendant to remove his hands from his pockets. The transcripts and the video

- 36 - No. 1-18-2170

establish the reverse happened. Officer Rodriguez testified that, after he approached defendant on

foot, he observed a bulge in defendant’s pocket. The officer explained: “it was a street stop because

he had a bulge and I was trying to see what was the bulge, what bulged.” 5 Defense counsel asked

the officer if defendant was “free to leave” at that moment, and the officer responded: “Not if I’m

doing a street stop.” The video clip shows Officer Rodriguez gripping the back of defendant’s

sweatshirt, while yelling: “Show me your f*** hands.” Since defendant’s noncompliance to the

officer’s yelling occurred after the stop was effected, it cannot be part of the reasonable suspicion

supporting the stop.

¶ 111 Defendant’s noncompliance could possibly be a factor justifying a protective pat-down

search if the stop was justified at its inception, but it cannot be a factor justifying the stop itself,

because it occurred after the stop was already underway, based on the evidence. See People v.

Flunder,

(a valid frisk requires, first, a valid stop).

¶ 112 The lead opinion finds: “Soto’s body camera recorded [Officer] Rodriguez stating that

defendant ‘saw [him], then [defendant] turned back,’ suggesting that defendant acted evasively

upon seeing the officers.” Supra ¶ 34. This finding distorts the order of events.

¶ 113 The video footage from Officer Soto’s body camera starts with the officers inside the

vehicle. However, the audio is turned off, so we have no idea what the officers discussed when

they first observed defendant. The audio is not turned on until after the vehicle stops and Officer

Soto exits and Officer Rodriguez has already stopped defendant. The first moment that defendant

appears on the body camera footage, Officer Rodriguez is already gripping the back of defendant’s

5 The video clip shows wires dangling from the bulge. Officer Rodriguez testified that he believed that the bulge could have been a weapon. The bulge turned out to be a car radio.

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sweatshirt and pulling defendant toward the back hood of the police vehicle. This is immediately

after defendant just ascended the stairs of the abandoned building and turned back as Officer

Rodriguez approached. While in the process of handcuffing defendant, Officer Rodriguez

commented, “You just saw me and you turned back,” which defendant had just done on the stairs.

¶ 114 In the end, all we are left with is a man running in a cold Chicago rain, 6 with a bulge in his

pocket, up a stoop, and toward shelter. I cannot find that this amounts to a reasonable suspicion of

criminal activity, nor should anyone.

¶ 115 I realize that, in this particular case, the officers did discover stolen goods on defendant’s

person. However, it is only the individuals with stolen goods or other contraband who appear

before us. The purpose of the fourth amendment’s exclusionary rule is to protect all of us by

deterring fourth amendment violations by the police. Terry,

(“the rule excluding

evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of

discouraging” unreasonable seizures for all citizens).

¶ 116 Since I find that the police lacked reasonable suspicion to make the stop, I would suppress

the property seized from defendant and his answers in response to the officers’ questions about the

property.

¶ 117 In addition, I find that the officers violated defendant’s Miranda rights. In the case at bar,

it is undisputed that the police officers asked defendant questions about the seized property without

first providing him Miranda warnings, after he was already stopped. There was no voluntary

encounter here, on the evidence presented. In this case, the evidence showed that Officer

6 The video clip shows that the windshield wipers of the officers’ vehicle are swiping back and forth, that the rain is striking the windshield, and that the sky is grey and cloudy.

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Rodriguez’s conduct indicated defendant could not and would not be able to leave, which shows

the importance of giving Miranda warnings. The lead opinion finds no Miranda violation by

relying on People v. Jeffers,

(2006). However, the difference between this

case and Jeffers is also the difference between a pea and an elephant. The Jeffers court found that

Miranda warnings were not required where the defendant was not “physically restrained in any

way” and was “free to walk about on his own.” Jeffers,

. By contrast, in the

case at bar, the video establishes that defendant was handcuffed against the hood of a police vehicle

and could not leave voluntarily. The officer’s testimony supports that he could not leave

voluntarily.

¶ 118 In Miranda v. Arizona,

(1966), the United States Supreme Court found

that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation” without first providing “procedural safeguards effective to secure the

privilege against self-incrimination.” The Miranda Court defined custodial interrogation as

“questioning initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” Miranda,

. In

the case at bar, there is no dispute that the officers “initiated” questioning, so the issue concerns

whether he was “deprived of his freedom of action in any significant way.” Miranda,

. The evidence shows that he was.

¶ 119 In Berkemer v. McCarty,

(1984), the United States Supreme Court

found that a routine traffic stop does not ordinarily require Miranda warnings. The Court explained

that the “circumstances associated with the typical traffic stop are not such that the motorist feels

completely at the mercy of the police.” Berkemer,

. The key is the “nonthreatening

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character of detentions of this sort.” Berkemer,

; see also Jeffers,

(finding no Miranda violation where “there was nothing coercive or threatening in [the

officer’s] conduct toward defendant”). However, even a traffic stop may become custodial for

purposes of Miranda, if the defendant is “subjected to restraints comparable to those associated

with a formal arrest.” Berkemer,

.

¶ 120 After analyzing both Miranda and Berkemer, the Jeffers court, upon which the lead opinion

relies, found that “the fact that defendant was unable to leave, and thus was subject to a Terry

seizure, is not dispositive on the issue of whether defendant was ‘in custody’ for purposes of

Miranda.” Jeffers,

. “The question *** is whether ‘at any time between the

initial stop and the arrest,’ ” was the defendant “ ‘subjected to restraints comparable to those

associated with a formal arrest.’ ” Jeffers,

(quoting Berkemer,

). The Jeffers court concluded that the Jeffers defendant before it was not subject to custodial

interrogation where he was not “physically restrained in any way” and “was free to walk about on

his own.” Jeffers,

.

¶ 121 By contrast, in the case at bar, the officers gripped the back of defendant’s sweatshirt,

pulling him toward the hood of the police vehicle, where he was immediately handcuffed,

searched, and interrogated about the seized items. “ ‘[T]he accepted test is what a reasonable

person, innocent of any crime, would have thought had he or she been in the defendant’s shoes.’ ”

Jeffers,

(quoting People v. Braggs,

, (2003)). I find

that a reasonable person in defendant’s shoes would not have believed that he was about to be

released and sent on his way. The officer’s testimony verified that point, as he testified, basically,

that defendant could not leave.

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¶ 122 It would be improper to find that Miranda principles do not apply to Terry stops; rather a

Miranda analysis must be applied to all stops, as it must be applied to any situation, to determine

if Miranda warnings are required. There are two different types of analyses: a fourth amendment

analysis to determine whether a stop occurred that requires reasonable suspicion and a fifth

amendment analysis to determine whether the coercive aspects of custodial interrogation are

present such that Miranda warnings are required. Thus, for example, a person may not be free to

leave and may be detained for purposes of a Terry stop, but Miranda warnings may not be required

if a reasonable person in the defendant’s shoes would believe that he or she is about to be released

and would shortly be set on his or her way and the coercive aspects that Miranda seeks to guard

against are not present. Berkemer,

. Such was the case in the routine traffic stop

in Berkemer. However, this was not the case here.

¶ 123 The Court in Berkemer was quick to point out that Miranda warnings could still be

required, even in a traffic stop, if coercive circumstances were present that could overcome one’s

fifth amendment rights. Berkemer,

(a motorist who is “subjected to treatment that

renders him ‘in custody’ for practical purposes” is “entitled to the full panoply of protections

prescribed by Miranda”).

¶ 124 In the case at bar, the video discloses that the approximately 5 foot, 4 inch defendant was

physically pulled by the back of his sweatshirt by the taller officer to the hood of the police vehicle,

while the officer shouted “Show me your f*** hands,” and was then handcuffed; searched; asked

processing questions such as full name, date of birth, and address; and interrogated.

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¶ 125 After being pulled, yelled at, handcuffed, and searched to reveal a car radio with dangling

wires and screw drivers and asked processing questions, a reasonable person in defendant’s shoes

would believe that he was, or was in the process of being, arrested.

¶ 126 The lead opinion finds that the Miranda issue was forfeited because the motion to suppress

was not made before trial. While section 114-11 of the Code of Criminal Procedure of 1963

generally requires a pretrial motion to suppress a “confession,” it also expressly provides trial

courts with the authority to consider such motions during trial. 725 ILCS 5/114-11(a), (g) (West

2018); see also People v. Humphries,

(1991) (“it is within the sound

discretion of the trial court to entertain a motion to suppress *** after trial has begun” based on a

Miranda violation). 7 In the instant case, when defendant made his motion, the trial court observed

that the motion should have been made before trial. Defendant then argued that the trial court

should still consider the motion. The trial court then exercised its discretion to consider the motion

and decide it, finding that Miranda did not attach “at that point.” The lead opinion finds that the

trial court denied defendant’s motion, in part, because the motion was untimely. Supra ¶ 57.

However, that finding runs counter to the record. The record is clear that the trial court chose to

consider the motion, and the sole reason it gave for denying the motion was its substantive finding

that Miranda did not attach at that point. As defendant notes in his brief to us, the State raised no

objection to the trial court’s consideration of defendant’s oral motion at that time. People v.

De La Paz,

(2003) (“It is well established that the State may waive waiver.”);

People v. Skillom,

(“State can forfeit forfeiture”).

7 The lead opinion relies on People v. Causey,

(2003), which found that a defendant can rely on trial evidence on appeal only if he raised his suppression motion again midtrial.

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¶ 127 The lead opinion finds that the motion should not have been considered because the

statutory exceptions did not apply. Supra ¶¶ 53-57. In essence, the lead opinion finds that the trial

court abused its discretion in considering defendant’s motion. However, once the finding was

made, I cannot find forfeiture where a defendant raises the issue both during trial and in a posttrial

motion. See People v. Piatkowski,

(2007); Humphries,

(the purpose of the statute was “to prevent the common law prohibition against filing motions to

suppress during the trial from prevailing over a defendant’s constitutional rights”). Since the issue

was not forfeited, the State has the burden to prove the error harmless beyond a reasonable doubt,

which it did not argue.

¶ 128 For the foregoing reasons, I must respectfully dissent.

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No. 1-18-2170

Cite as: People v. Lozano,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR- 3154; the Hon. James B. Linn, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Pamela Rubeo (Cara for Filippelli, law student), of State Appellate Defender’s Office, of Appellant: Chicago, for appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (John E. for Nowak, Enrique Abraham, and Brenda K. Gibbs, Assistant Appellee: State’s Attorneys, of counsel), for the People.

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