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05/01/95 PEOPLE STATE ILLINOIS v. LUIS RIVERA

May 1, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LUIS RIVERA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John J. Moran, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Buckley delivered the opinion of the court: Campbell, P.j. and Wolfson, J., concur.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Defendant was charged with possession of a controlled substance in violation of section 402(c) of the Illinois Controlled Substance Act (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 402(c) (now 720 ILCS 570/402 (West 1992))). The trial court denied defendant's motion to suppress evidence and after a bench trial found defendant guilty. Defendant appeals the denial of the motion to suppress, alleging the stop and frisk were invalid under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

At the hearing on defendant's motion to suppress and at trial, Officer Terry presented the only evidence concerning the events of February 8, 1993, resulting in defendant's arrest and conviction. Officer Terry testified that at about 2:50 p.m. he and his partner were in an unmarked police car near Western and Augusta when they monitored a "C.O.S." call. The broadcast stated that two male Hispanics were selling drugs at 901 North Francisco. It gave the following descriptions: one individual was wearing a Charlotte's, powder blue, purple, long coat jacket and the other individual was wearing a black and red waist-length Bulls jacket. Officer Terry acknowledged that these jackets were common in the area. On cross-examination, Officer Terry stated that the broadcast provided no other description and that he was unaware of the source of the information or its reliability.

After hearing the broadcast, the officers headed toward the scene. On their way, a beat car broadcast the same description and relayed that the two individuals had left the scene and were heading eastbound on Augusta. The officers were heading westbound on Augusta approximately one block away from Francisco. At 2808 West Augusta, the officers observed two individuals who fit the broadcast description. Officer Terry did not see anyone else in the area dressed similarly.

The officers told the two individuals to stop, which they did. The officers exited their car and approached the suspects. As they approached, the officers announced their office and advised the suspects of the drug sale allegation. The police noticed that the suspects' jackets were zipped up. According to Officer Terry, because "sometimes normally in narcotics arrests, subjects have been known to carry weapons," they asked the suspects to unzip their coats. The suspects did so voluntarily. Officer Terry testified that at no time did the suspects threaten the officers.

When the suspects unzipped their coats, the officers observed plastic bags protruding from each of their waistbands. Officer Terry testified that he believed the bags contained narcotics. He had made hundreds of narcotic arrests and was familiar with how cocaine was packaged: usually wrapped in small plastic bags. The officer removed the bags from the suspects' waistbands. After extracting the bags, he could see the contents which he believed to be cocaine.

Following Officer Terry's testimony, defendant moved to suppress the evidence, arguing that the stop, frisk, and seizure were improper under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The trial court denied the motion finding that given the nature of the drug trade and the officer's experience, it was proper for them, in securing their own safety, to determine whether the suspects were armed. The court further found that asking the suspects to unzip their jackets was reasonable. When the officers observed the bags at this time, the evidence was in plain view and the officers were entitled to seize it.

The only issue is whether the trial court erred when it denied defendant's motion to suppress. Defendant contends that both the stop and frisk were invalid under Terry. The court will not overturn the trial court's decision on a motion to suppress unless it finds the decision manifestly erroneous. ( People v. Turnage (1994), 162 Ill. 2d 299, 305, 642 N.E.2d 1235, 1238, 205 Ill. Dec. 118.) Defendant has the burden of proving the unlawfulness of a stop and frisk on a motion to suppress. In re M. N. (1994), 268 Ill. App. 3d 893, 897, 645 N.E.2d 499, 503, 206 Ill. Dec. 494.

In Terry, the United States Supreme Court held that under appropriate circumstances an officer may approach a person and briefly stop and detain him or her, without probable cause, to investigate possible criminal activity. To justify the stop, an officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." ( Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) Illinois has codified a Terry stop in section 107--14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/107--14 (West 1992)). The court employs an objective standard to determine whether the stop was reasonable ( People v. Scott (1992), 148 Ill. 2d 479, 503, 594 N.E.2d 217, 225, 171 Ill. Dec. 365, cert. denied (1993), U.S. , 123 L. Ed. 2d 156, 113 S. Ct. 1590): would a person of reasonable caution believe the action taken was proper knowing the facts available at the time of the stop. ( People v. Christensen (1990), 198 Ill. App. 3d 168, 171, 555 N.E.2d 746, 748, 144 Ill. Dec. 387.) The facts must justify more than a mere hunch. People v. Ware (1994), 264 Ill. App. 3d 650, 654, 636 N.E.2d 1007, 1009, 201 Ill. Dec. 575, appeal denied (1994), 157 Ill. 2d 519, 642 N.E.2d 1299.

The same analysis applies to the frisk authorized by Terry. Section 108--1.01 (725 ILCS 5/108--1.01 (West 1992)) codifies this portion of Terry's holding. The right to frisk does not automatically ensue from a legally justified Terry stop. ( People v. Galvin (1989), 127 Ill. 2d 153, 165, 535 N.E.2d 837, 842, 129 Ill. Dec. 72.) The police must have a reasonable belief that his or her safety or the safety of others is in danger before a frisk may be conducted. ( People v. Cleaves (1988), 169 Ill. App. 3d 252, 256, 523 N.E.2d 720, 722, 119 Ill. Dec. 964.) Although the officer need not be absolutely positive an individual is armed, the belief that one is armed must be reasonable, taking into account the reasonable inferences police are entitled to draw from the facts in light of their experience. ( Christensen, 198 Ill. App. 3d at 172, 555 N.E.2d at 748; see also Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; Galvin, 127 Ill. 2d at 163, 535 N.E.2d at 841.) Once a reasonable belief of danger arises, an officer may conduct a search "limited to the minimum necessary to discover objects capable of use as weapons." (Emphasis added.) ( Cleaves, 169 Ill. App. 3d at 257, 523 N.E.2d at 722.) Under Terry, the question whether a stop is valid is distinct from the question whether a frisk is valid. The court must address each issue separately.

Defendant argues that the officers lacked sufficient grounds to stop him. The fact that they were wearing the same type of jackets that the alleged drug sellers were wearing fails to corroborate the anonymous tip broadcast. Defendant was not acting suspiciously when the police detained him and was simply walking down ...


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