Appeal from the Circuit Court of De Kalb County; the Hon. Carl
A. Swanson, Jr., Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant, James E. Mills, was charged by information with unlawful possession of more than 30 but less than 500 grams of a substance containing cannabis in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(d)). Defendant's pretrial motion to suppress the seized material was denied. After a bench trial in De Kalb County defendant was found guilty and sentenced to 18 months' probation and a $250 fine.
On appeal defendant contends that his motion to suppress was improperly denied because the evidence seized was the fruit of an improper stop of defendant's vehicle. We agree and reverse and remand this cause.
At the suppression hearing defendant testified that he and a friend, David Milroy, were sitting and talking in defendant's car at the municipal parking lot in Sycamore. Officer Garvey then pulled in the parking lot. Milroy told defendant that Officer Garvey was behind them and defendant took his keys out of the glove compartment, put them in the ignition, started the car and turned around to back up when he saw that Officer Garvey had gotten out of his car. Garvey had parked his car about two spaces down and, according to defendant, the car was blocking the exit to the parking lot. Defendant put his car in park when he saw Officer Garvey get out of his car.
Defendant went on to say that the officer went to the driver's window and asked defendant what he was doing. Defendant replied that he was doing "nothing." Garvey asked both men to get out of the car, which they did. Garvey then searched the car. Defendant testified, on cross-examination, that he told Garvey not to make a search because it was his mother's car.
Officer Garvey testified that he pulled into the parking lot to avoid a busy intersection. After he pulled in the lot he saw that defendant and Milroy were looking at him and they "made fast movements, leaning forward like they were leaning down towards the floorboard of the car." On cross-examination Officer Garvey testified that defendant's reaction to his entrance into the parking lot was what caused him to approach defendant's vehicle. Officer Garvey pulled his vehicle past defendant's, stopped it, and walked up to defendant's side of the car. The officer leaned over to ask them what they were doing and noticed both of the occupants were moving around and acting nervous. Then he noticed a clear plastic bag with a green leafy substance in it on the floorboard of the car. It appeared to be marijuana. After seeing this, he testified, he asked the boys to step out of the car. The officer testified that defendant told him to go ahead and search the car. In the car he found a jacket, the pockets of which contained two plastic bags full of a green leafy material. Garvey told defendant he could get a search warrant if he needed and defendant should cooperate by giving him the keys to the glove compartment. Defendant then unlocked the compartment and handed Garvey a brown paper bag, telling him it contained three ounces of grass.
After oral arguments, the trial court found that Officer Garvey had approached the defendant's vehicle in a public parking lot and had seen a plastic bag containing green material. It found Garvey had sufficient experience with marijuana to recognize it. The arrest of defendant and search of the vehicle were deemed to be proper.
• 1 It should be noted at the outset that defendant failed to file a post-trial motion in this cause. Generally, the failure to do this results in a waiver of the alleged error. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) However, certain errors can be considered under Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)), which provides for the "plain error doctrine." In addition, there are exceptions to this rule in criminal cases where the evidence is closely balanced. (People v. Jackson (1980), 89 Ill. App.3d 461, 411 N.E.2d 893.) The State has not raised this issue on appeal and does not contend that defendant's arguments are waived. Even when a post-trial motion is lacking a court can consider constitutional arguments, such as presented here, on their merits. People v. Baker (1979), 78 Ill. App.3d 411, 396 N.E.2d 1174; People v. Smith (1977), 53 Ill. App.3d 395, 368 N.E.2d 561.
• 2 Turning to defendant's contention of error, the question presented is whether or not Officer Garvey made a proper "stop" or "seizure" of defendant in the parking lot. It is clear that an investigatory "stop" is proper if the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L.Ed.2d 889, 905, 88 S.Ct. 1868, 1879; Ill. Rev. Stat. 1979, ch. 38, par. 107-14.
As the court stated in People v. DeLisle (1982), 104 Ill. App.3d 297, 299, 432 N.E.2d 954, 956:
"There are no per se rules for determining whether an investigatory stop is justified. Each case must be decided on its own facts. Coolidge v. New Hampshire (1971), 403 U.S. 443, 509-10, 29 L.Ed.2d 564, 608, 91 S.Ct. 2022, 2060; People v. Kelly (1979), 76 Ill. App.3d 80, 84, 394 N.E.2d 739."
In the present case Officer Garvey's suspicion was founded on the fact that the defendant and his friend made fast movements and leaned forward. Garvey also testified that he recognized defendant, and that defendant looked at him when he pulled in the lot. Beyond this, Garvey articulated no facts to support his suspicion of defendant.
The State contends that the facts of this case do not constitute a "stop" as occurred in Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L.Ed.2d 889, 905, 88 S.Ct. 1868, 1879. In Terry, which prohibited an investigatory stop based on "inarticulate hunches," Officer McFadden stopped three defendants he suspected were contemplating a daylight robbery. The court noted that, in the interest of crime prevention, an officer can make a temporary seizure for investigation when he has observed unusual conduct which leads him to reasonably conclude in light of his experience that criminal activity may be afoot. More recently, the Supreme Court stated that a stop for investigation must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (United States v. Cortez (1981), 449 U.S. 411, 66 L.Ed.2d 621, 101 S.Ct. 690; 3 W. LaFave, Search and Seizure sec. 9.2, at 2 n. 11.1 (1983 Supp.).) Again, in the case at bar, the only objective manifestations raised by Officer Garvey were: Defendant's looking at Garvey, his rapid movement and leaning forward, and possibly the fact that Garvey knew defendant or defendant's reputation. Clearly Garvey was not investigating any criminal activity, nor was there any showing of a general criminal investigation.
In People v. DeLisle (1982), 104 Ill. App.3d 297, 432 N.E.2d 954, the question of what constitutes a proper stop was addressed by the court. The defendant in DeLisle had been stopped at O'Hare Airport and drugs were found in her baggage. The court rejected the arresting officer's reasoning for making the stop, noting that many people could meet the characteristics argued to be indicative of criminal activity, i.e., ...