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01/13/98 PEOPLE STATE ILLINOIS v. JOHN GONZALEZ

January 13, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN GONZALEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 94--CF--2505. Honorable Frederick J. Kapala, Judge, Presiding.

Presiding Justice Geiger delivered the opinion of the court. Thomas, J., concurs. Justice Bowman, dissenting.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

Following a jury trial, the defendant, John Gonzalez, was convicted of unlawful use of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1994)) and sentenced to nine years' incarceration. On appeal, the defendant argues that (1) the trial court erred in denying his motion to suppress evidence; and (2) the trial court erred in denying his motion to allow the jury to view the area where he was arrested. We affirm.

Prior to trial, the defendant moved to suppress the handgun recovered by the police at the time of his arrest. At the suppression hearing, Officer Kevin Gulley of the Rockford police department testified that, on October 27, 1994, at approximately 2:40 a.m., he was patrolling the area of West and Cunningham Streets in Rockford. This is a high-crime area in which there are frequent "drug-related" and "shots-fired" calls. On the date in question, he observed a vehicle driven by a white female speed past him. Without the use of a radar gun, he estimated that the vehicle was travelling about 40 miles per hour in a 30 miles per hour zone. He did not notice any other passengers in the car. Officer Gulley turned on his emergency lights, shined his spotlight into the car's rearview mirror, and effectuated a traffic stop.

As soon as the vehicle came to a stop at a nearby corner, the defendant exited the rear passenger side of the car and began walking away. Officer Gulley exited his car, and "just for [his] safety," he instructed the defendant to return to the scene. The defendant ignored Officer Gulley's instructions and kept walking. At that time, Officer Gulley, a canine officer, directed his dog to exit the police car. He ordered the dog into the "heel" position. The dog began "barking his head off" at the defendant. Officer Gulley again instructed the defendant to return to the scene. At this time, the defendant stopped, turned around, and hesitated. At that moment, Officer Gulley believed that the defendant was going to run away. However, the defendant began walking back toward the scene. Because of the defendant's "strange behavior," Officer Gulley asked him whether he was carrying any guns, needles, or knives. The defendant responded affirmatively. Officer Gulley then patted down the defendant and found a handgun in his waistband.

On cross-examination, Officer Gulley reiterated that, at the time defendant was walking away, he feared for his personal safety. Officer Gulley testified that the defendant was a "necessary party" to the traffic stop because he did not know who the defendant was and was unsure why the defendant had exited the vehicle so abruptly after the initial stop. Officer Gulley admitted that, at the time he ordered the defendant to turn around and return to the scene, he did not observe anything that indicated that the defendant was committing or had committed a crime. He did not observe anything in the defendant's hands.

Rebecca Sigala testified that, at the time of the stop, she was a passenger in the front seat of a vehicle being driven by Jessie Hogan. Sigala testified that the defendant was riding in the backseat of the vehicle and that Hogan was in the process of driving the defendant home. She never saw police emergency lights before the car stopped in front of the defendant's home. When Hogan pulled the car to the curb, Sigala and Hogan said good-bye to the defendant and he exited the car. After the defendant exited the car, a police car stopped behind it and a spotlight was shined directly onto the car's rearview mirror. An officer exited from the police car and said to the defendant, "Hey, come here." The defendant "looked up, like surprised like, and he walked back there to talk to the cop." The officer instructed the defendant only one time to return to the scene. The officer did not activate his emergency lights until after he had handcuffed the defendant.

Jessie Hogan testified that she drove the defendant home in her car on October 27, 1994. When she stopped in front of his house, the defendant exited the car and she said, "See you later." Almost immediately thereafter, a police car pulled up behind her; she was able to see the lights on top of the car even though they were not activated at that time. The officer who exited from the car told the defendant to "come here," and the defendant complied. She heard a dog barking at some point. The police car's overhead lights were not illuminated until after Officer Gulley called and requested assistance.

At the conclusion of the hearing, the trial court noted that "if an officer effectuates a legal traffic stop for a violation of the law, [then] he has the right to insist the occupants in the car remain in the car, and that's not what the Defendant did." According to the trial court, it was not unconstitutional under the circumstances of the traffic stop for Officer Gulley to ask the defendant whether he was carrying any weapons, and when the defendant responded affirmatively, it was not unconstitutional for Officer Gulley to perform the search. The trial court also determined that Officer Gulley's testimony was more credible then that of Sigala and Hogan. Accordingly, the trial court denied the defendant's motion to suppress.

The trial began on February 22, 1995. The testimony of Officer Gulley, Sigala, and Hogan was substantially similar to that which they had provided at the suppression hearing. The defendant testified on his own behalf and admitted that he had prior convictions of aggravated discharge of a firearm and robbery. The defendant testified that, on the morning of October 27, 1994, Hogan drove him home. As he was saying good-bye and exiting the car, he noticed a police car approach and stop behind Hogan's car. The officer shined his spotlight into Hogan's car. The defendant heard someone say, "hey, you, come here." The defendant turned toward the officer and "went directly back to him." At that time, the police car's overhead lights were not illuminated.

The defendant met Officer Gulley in front of the police car. According to the defendant, Officer Gulley asked for identification and ordered him to put his hands on the hood of the police car. After telling the defendant to sit on the hood of the police car, Officer Gulley then searched the area around Hogan's car. Officer Gulley recovered a handgun from the leaf-covered curb area near Hogan's car. The defendant denied that the gun was his. Officer Gulley then placed the defendant in handcuffs and radioed for assistance. Officer Gulley did not illuminate his roof lights until after he had handcuffed the defendant. According to the defendant, Officer Gulley never asked him whether he was carrying any guns, needles, or knives.

The defendant's primary contention on appeal is that the trial court erred in denying his motion to suppress. The defendant argues that he was unlawfully detained under the standards articulated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). According to the defendant, Officer Gulley could not have reasonably believed that he was in danger or that the defendant was armed and dangerous based on the defendant's actions at the scene. Therefore, the defendant concludes that he was illegally stopped and searched and that the recovered handgun should have been suppressed.

At the outset, we note that a trial court's decision on a motion to suppress evidence will not be disturbed on review unless that decision is clearly erroneous or against the manifest weight of the evidence. People v. Drake, 288 Ill. App. 3d 963, 967, 225 Ill. Dec. 552, 683 N.E.2d 1215 (1997). Our standard of review is such because the trial court is in a superior position to determine and weigh the credibility of the witnesses, to observe their demeanor, and to resolve conflicts in their testimony. People v. Carter, 288 Ill. App. 3d 658, 662, 224 Ill. Dec. 226, 681 N.E.2d 541 (1997). Thus, the trial court's factual determinations, as well as any ...


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