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03/18/97 PEOPLE STATE ILLINOIS v. SAM WARDLOW

March 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SAM WARDLOW, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 95 CR 26952. The Honorable Fred Suria, Judge Presiding.

As Corrected March 19, 1997. Released for Publication April 24, 1997.

The Honorable Justice DiVITO delivered the opinion of the court. Rakowski and McNULTY, JJ., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

Following a bench trial, defendant Sam Wardlow was found guilty of unlawful use of a weapon by a felon and was sentenced to two years' imprisonment. The sole issue in this appeal is whether the circuit court erred in denying defendant's motion to suppress the gun that was seized from him during an investigatory stop. For the reasons that follow, we conclude that defendant's motion to suppress should have been granted and we reverse his conviction.

At the hearing on defendant's motion to suppress, Officer Timothy Nolan testified that on September 9, 1995, he and his partner, Officer Harvey, were assigned to the special operations section of the Chicago police department. They were among eight officers in four cars who were driving eastbound on West Van Buren. Officer Nolan's car was last in the line of vehicles driving in the area. Although Officer Nolan could not recall whether his car was marked, he and his partner were in uniform. There was no evidence concerning whether any of the other cars were marked or concerning the clothing of the other officers.

The cars were "caravaning" eastbound down Van Buren, when Officer Nolan observed defendant, who was not violating any laws, standing near the front of 4035 West Van Buren Street. Defendant looked in the officers' direction, then fled. Holding a white bag under his arm, he ran through a gangway and then through an alley. Officer Nolan drove south, observing defendant as he ran. Near 4036 West Congress, defendant ran towards him.

Officer Nolan exited his car and stopped defendant. Without announcing his office or asking any questions, he conducted a protective pat-down search of defendant. He could not see inside the plastic bag that defendant was carrying. He patted the outside of the bag and "felt a hard object that had a similar shape to a revolver or a gun." Officer Nolan believed the object, which was very heavy, to be a weapon. He looked inside the bag and found a .38-caliber handgun containing five live rounds of ammunition. He then placed defendant under arrest.

Officer Nolan testified that he and the other officers had gone to the area because it was "one of the areas in the 11th District that's high narcotics traffic." Based upon his experience with investigation of areas in which narcotics are sold, Officer Nolan knew that it was common to find weapons in the vicinity of such areas.

The police report indicated that defendant, who was 44 years old, was arrested at 12:15 p.m.

The circuit court denied the motion to suppress. A stipulated bench trial followed, and defendant was found guilty of unlawful use of a weapon by a felon and was sentenced to a two-year term of imprisonment.

In this appeal, defendant contends that the circuit court erred in denying his motion to suppress because his presence in a high crime area and flight from the police officers were insufficient to justify his investigatory stop. We note that although no Illinois court has considered whether sudden flight from police officers in a high crime area justifies a stop, other jurisdictions are divided on the question. Compare Harris v. State, 205 Ga. App. 813, 423 S.E.2d 723 (1992), and State v. White, 660 So. 2d 515 (La. Ct. App. 1995)(flight from police officers in high crime area justifies investigatory stop), with People v. Holmes, 81 N.Y.2d 1056, 619 N.E.2d 396, 601 N.Y.S.2d 459 (1993), Hopkins v. State, 661 So. 2d 774 (Ala. Crim. App. 1994), Britt v. State, 673 So. 2d 934 (Fla. App. 1996), and State v. Hicks, 241 Neb. 357, 488 N.W.2d 359 (1992) (flight from police officers in high crime area does not justify stop).

Where, as here, there is no challenge to the facts or the credibility of the witnesses, we review a motion to suppress de novo. People v. Foskey, 136 Ill. 2d 66, 76, 554 N.E.2d 192, 143 Ill. Dec. 257 (1990); Ornelas v. United States, 517 U.S. , , 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996).

Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) (codified at 725 ILCS 5/107-14 (West 1994)), a police officer may stop and detain a person for temporary questioning if the officer reasonably infers from the situation that the person is committing, is about to commit, or has committed a crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880. To justify an investigatory stop, the police officer must be able to point to specific and articulable facts that reasonably warrant the intrusion. Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. In determining whether a stop is reasonable, the court employs an objective standard: would an officer of reasonable caution, knowing the facts available at the time of ...


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