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02/07/97 PEOPLE STATE ILLINOIS v. FA-RD MOORE

February 7, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
FA-RD MOORE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 95--CF--433. Honorable Daniel W. Gould, Judge Presiding.

Released for Publication March 12, 1997. As Corrected March 7, 1997. Rehearing Denied March 19, 1997. Released for Publication March 19, 1997.

Present - Honorable Michael P. McCUSKEY, Justice, Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

Pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)), the State appeals from an order of the circuit court of Kankakee County which granted a motion to suppress evidence filed by the defendant, Fa-Rd Moore. The State argues that the trial court erred when it granted the motion to suppress. Following our careful review of the record, we affirm.

FACTS

The defendant was charged by indictment with unlawful possession of more than 1 gram but less than 15 grams of a substance containing cocaine with intent to deliver (720 ILCS 570/401(c)(2) (West 1994)). The defendant filed a motion to suppress evidence which alleged that the search of his person was in violation of his fourth amendment rights.

A hearing was held on the defendant's motion on June 28, 1996. The defendant called two witnesses, David Williams and Ruben Bautista. Williams testified that he was a police officer with the sheriff's department. On July 18, 1995, he was participating with officers from various jurisdictions in a detail to identify gang members. As part of this detail, he went to Gibbs Tavern in Hopkins Park, Pembroke Township. Williams testified that he had been at Gibbs Tavern many times because of criminal activity at that location.

Williams saw a male subject, later identified as the defendant, running in front of the tavern. He saw Officer Bautista chasing the defendant and heard Bautista say, "stop, police." Williams joined in the chase and also told the defendant to stop.

Bautista testified that he was an officer with the Illinois State police. On July 18, 1995, he was assigned to the gang crime unit. Bautista was wearing a gang tactical outfit consisting of a State police T-shirt with a badge on his left chest, a web gear belt with a badge and radios and a State police ball cap. Bautista arrived at Gibbs Tavern at approximately 11:40 p.m. Bautista stated that the tavern was frequented by gang members and that many narcotic activities and shootings have occurred at that location.

Bautista saw the defendant next to a van parked in front of the tavern entrance. The defendant was talking to someone sitting inside the van. Bautista, who was 75 to 100 feet away, then saw what appeared to be an exchange of money. Bautista testified that he was not able to tell who was giving or receiving the money or if anything else was exchanged. He admitted that, because of the distance and lack of light, he was not able to determine if the exchange he saw was part of an illegal transaction.

Bautista testified that after making his observation, he began walking toward the van. He said the defendant saw him approaching and began to walk away from the van. Bautista advised the defendant that he was a State police officer. The defendant began to walk faster, and Bautista started to chase him. The defendant started running and turned into an alleyway. Williams joined in the chase and was able to tackle the defendant. A plastic bag of cocaine was found on the defendant as a result of a pat down search for weapons conducted by Williams.

Following Bautista's testimony, defense counsel argued that the police did not have any indication that the defendant was involved in a crime prior to the chase. The State contended that Bautista was approaching the defendant to ask him questions and properly seized the defendant based upon his "attempt to elude the police in ...


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