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People v. Avant

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT


June 20, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MONTEL AVANT, DEFENDANT-APPELLANT.

Appeal from Circuit Court of Champaign County No. 99CF701 Honorable Thomas J. Difanis, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MONTEL AVANT, DEFENDANT-APPELLANT.

Appeal from Circuit Court of Champaign County No. 99CF701 Honorable Thomas J. Difanis, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

In December 1999, the trial court convicted defendant, Montel Avant, of possession of a controlled substance with intent to deliver (more than 1 gram but not more than 15 grams of a substance containing cocaine) (720 ILCS 570/401(c)(2) (West 1998)) and later sentenced him to four years in prison.

 Defendant appeals, arguing that (1) the trial court erred by denying his motion to suppress evidence because the evidence was obtained during an illegal seizure, and (2) his conviction should be reversed because it was based, in part, on a police laboratory report (hereinafter lab report) admitted into evidence pursuant to section 115-15 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-15 (West 1998)), which the Supreme Court of Illinois declared unconstitutional in People v. McClanahan, 191 Ill. 2d 127, 140, 729 N.E.2d 470, 478 (2000). We affirm.

I. BACKGROUND

Champaign police officer Mark E. Huckstep was the only witness to testify at the August 1999 hearing on defendant's motion to suppress evidence. Huckstep testified as follows.

In April 1999, he was a member of Champaign's community-policing unit and was assigned to the housing projects and surrounding area, which included North Fourth Street. He worked 9 a.m. to 5 p.m. shifts at that time.

Around 2 p.m. on April 29, 1999, Huckstep was patrolling the 900 block of North Fourth Street with his partner, Mary Bunyard, in an unmarked police car. Both officers were in uniform. Huckstep observed defendant, who was walking south on Fourth Street as Huckstep was driving north. At first, Huckstep described his interest in defendant as follows: "I wasn't familiar with him. I [had] seen him around there the last few days, but I [had] never spoken to him before, so I wanted to get acquainted with him." Huckstep said that defendant "appeared to be hanging around in the 900 block" and did not appear to be intoxicated or under the influence of anything.

Huckstep turned off of Fourth Street onto East Eureka, parked on the side of the road, got out of the car, and approached defendant (who was still walking southbound on Fourth Street north of Eureka). Bunyard got out of the car and followed Huckstep but was "not too close" to him. Huckstep asked defendant if he could speak to him and defendant said, "yeah." Huckstep asked defendant if he had any identification. Defendant did not have identification on him but told Huckstep his name. Huckstep then called in a warrant check, using his handheld radio, and learned that defendant had no outstanding warrants. Huckstep then asked defendant if he had anything illegal on his person. Defendant said, "yeah, I have some rocks." Huckstep took that to mean "rock cocaine" and asked defendant to hand the rocks to him. Defendant reached into his left coat pocket, pulled out a bag, and handed it to Huckstep.

At the time he approached defendant, Huckstep had not observed defendant committing a crime and defendant did not appear about to commit a crime. According to Huckstep, when he stopped defendant, he initiated a voluntary contact.

On cross-examination, Huckstep said that the police had received "a lot of complaints about high drug activity going on in that block for quite some time," and he had seen defendant hanging around in that area for the previous few days. On re-direct, the following colloquy occurred:

"Q: Was the fact that you'd seen this individual a couple of times before in and of itself suspicious?

A: I would say in the block that he'd been hanging in, the way he had been hanging, yeah, it was suspicious."

On re-cross-examination, defense counsel queried further, as follows:

"Q: What was suspicious about [defendant]?

A: The fact that he'd just been--I hadn't seen him prior to that except for the last two or three days and that he just continued to hang in that immediate area which had been a high drug activity area.

Q: Okay. When you say he was hanging, can you describe the distance or the parameters of the area in which you saw him hanging?

A: Within that block maybe as far down as the convenient store, within a two-block range, walking back and forth on the sidewalk.

Q: Over what sort of time period are we talking about him walking from one end to the other?

***

A: Two to three days, probably four to five hours, if I recall right, a day."

At the conclusion of the hearing, the trial court denied defendant's motion to suppress the evidence and explained its ruling, in pertinent part, as follows:

"Based on the evidence, I find and conclude that [Huckstep's] contact with this defendant was not a seizure, but was rather a contact by [Huckstep], which contact was a part of [Huckstep's] community[-]caretaking function. The duration of the entire transaction was approximately three minutes. There are no facts indicating that the physical proximity of [Huckstep], the language of [Huckstep], the posture of [Huckstep], or any of the other circumstances present were such as to constitute a show of authority of a type that would cause a reasonable person to conclude that that person was not free to leave. A reasonable person in [defendant's] posture, I find and conclude, would and could decline conversation with the officer and continue on their way if they were so inclined."

At defendant's December 1999 bench trial, Huckstep testified consistently with his testimony at the hearing on defendant's motion to suppress evidence. In addition, he testified that (1) the 900 block of North Fourth Street is a high drug-trafficking area; (2) he had seen defendant on a couple of days prior to April 29, 1999, "stead[il]y walking back and forth, up and down the sidewalk" spanning two blocks; and (3) defendant handed him a bag containing 26 individual bags of crack cocaine.

Roberta Johnson, an employee in the evidence section of the Champaign police department, testified that she transported the drug evidence to the Illinois State Police Laboratory in Springfield and identified the lab report that was generated as a result. The State moved to admit the lab report into evidence, defendant did not object, and the trial court admitted the report.

The trial court found defendant guilty of possession of a controlled substance with intent to deliver (more than 1 gram but not more than 15 grams of a substance containing cocaine) (720 ILCS 570/401(c)(2) (West 1998)) and sentenced him as stated. This appeal followed.

II. ANALYSIS

A. Defendant's Fourth Amendment Claim

Defendant first argues that the trial court erred by denying his motion to suppress evidence because it was obtained in an illegal seizure in violation of the fourth amendment of the United States Constitution (U.S. Const., amend. IV). Specifically, he contends that (1) the court erred by finding that Huckstep was performing a community-caretaking function during their encounter, and (2) Huckstep did not have the degree of suspicion necessary to justify an investigatory detention under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Because (1) we conclude that the circumstances were sufficient to warrant an investigative Terry stop, and (2) we may affirm the trial court's judgment on any basis supported by the record (People v. Speed, 315 Ill. App. 3d 511, 517, 731 N.E.2d 1276, 1281 (2000)), we hold that the court did not err by denying defendant's motion to suppress.

When the facts are not in dispute, as in this case, we review de novo a trial court's determination on a motion to suppress evidence. People v. Buss, 187 Ill. 2d 144, 204-05, 718 N.E.2d 1, 35 (1999).

For the purposes of our analysis, we will assume, without deciding, that the encounter between Huckstep and defendant was, or evolved into, a seizure, albeit a minimally intrusive one. If Huckstep's conduct passes muster under Terry, which requires an analysis under the highest standard either party suggests, the trial court properly denied defendant's motion to suppress.

The protection afforded under the fourth amendment balances the public interest in controlling crime and effective law enforcement with an individual's right to be free from unreasonable search and seizure. United States v. Mendenhall, 446 U.S. 544, 565, 64 L. Ed. 2d 497, 517, 100 S. Ct. 1870, 1883 (1980). Thus, a police officer may conduct a brief investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot without violating the fourth amendment. Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 576, 120 S. Ct. 673, 675 (2000).

"Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 628-29, 101 S. Ct. 690, 695 (1981).

This totality-of-the-circumstances analysis involves various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer will draw inferences and deductions that might well elude an untrained person. Cortez, 449 U.S. at 418, 66 L. Ed. 2d at 629, 101 S. Ct. at 695. Therefore, "the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement" (Cortez, 449 U.S. at 418, 66 L. Ed. 2d at 629, 101 S. Ct. at 695) and "the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior" (Wardlow, 528 U.S. at 125, 145 L. Ed. 2d at 577, 120 S. Ct. at 676).

Courts must also keep in mind that reasonable suspicion is a less demanding standard than probable cause. Reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, and reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 309, 110 S. Ct. 2412, 2416 (1990).

Since the Supreme Court decided Terry, it has "relaxed the standard announced therein and afforded officers greater latitude, particularly in drug cases, in an effort to provide them greater protection." People v. Rivera, 272 Ill. App. 3d 502, 507, 650 N.E.2d 1084, 1088 (1995). The Supreme Court in Wardlow recently considered whether a Terry stop was justified, and in doing so examined whether, and to what degree, an individual's flight from police in a high-crime area gave rise to a reasonable suspicion of criminal activity. Wardlow, 528 U.S. at 123-25, 145 L. Ed. 2d at 576-77, 120 S. Ct. at 675-76. In deciding Wardlow, the Court spoke directly to two issues raised by the facts of the present case--namely, to what degree a reasonable suspicion can be based on (1) the neighborhood where the suspicious conduct occurred, and (2) the arguably innocent nature of the conduct itself. Wardlow, 528 U.S. at 124-26, 145 L. Ed. 2d at 576-77, 120 S. Ct. at 676-77. On the first point, the Court wrote as follows:

"An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. [Citation.] But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a 'high crime area' among the relevant contextual considerations in a Terry analysis." Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at 676.

On the second point, the Court opined as follows:

"Respondent *** also argue[s] that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the [f]ourth [a]mendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window[,] and periodically conferring. [Citation.] All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity. [Citation.]

In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the [f]ourth [a]mendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way." Wardlow, 528 U.S. at 125-26, 145 L. Ed. 2d at 577, 120 S. Ct. at 677.

Clearly, an innocent person might simply walk back and forth along a two-block span for two or three days, four to five hours per day, as defendant did here. However, in making a determination of reasonable suspicion, the relevant inquiry is not whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to the non-criminal act in light of existing circumstances, including the officer's knowledge of the neighborhood where the conduct occurred and particular patterns of criminal behavior. See United States v. Sokolow, 490 U.S. 1, 10, 104 L. Ed. 2d 1, 12, 109 S. Ct. 1581, 1587 (1989). In this case, (1) Huckstep had observed defendant's behavior for two to three days, (2) he observed defendant pacing the same two- block area for four to five hours each day, and (3) Huckstep knew the area to be a high drug-trafficking area. Viewing these observations in light of Huckstep's knowledge of the neighborhood and the modes of behavior of drug dealers, we conclude that Huckstep's suspicion that defendant had committed, was committing, or was about to commit a crime--specifically, trafficking in unlawful drugs--was reasonable. Accordingly, we hold that the trial court did not err by denying defendant's motion to suppress.

B. McClanahan

Last, defendant argues that this court should reverse his conviction because the only evidence that he possessed drugs was admitted under section 115-15 of the Code (725 ILCS 5/115-15 (West 1998)), which the Supreme Court of Illinois declared unconstitutional in McClanahan, 191 Ill. 2d at 140, 729 N.E.2d at 478. The State responds that defendant has forfeited this argument by failing to challenge the admissibility of the lab report at trial. We agree with the State.

This court recently addressed a defendant's forfeiture of his right to challenge the admission of evidence under section 115-15 of the Code in People v. Avery, 321 Ill. App. 3d 414, 416-418, ___ N.E.2d ___, ___ (2001). In Avery, 321 Ill. App. 3d at 417, ___ N.E.2d at ___, we held that the defendant had forfeited the right to raise a McClanahan challenge on appeal by failing to object to the admission of the lab report evidence at trial. We adhere to that decision. Accordingly, in light of defendant's failure to object to the admission of the lab report at trial, we hold that defendant has forfeited this issue on appeal.

III. CONCLUSION

For the reasons stated, we affirm the trial court's judgment.

Affirmed.

MYERSCOUGH, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent.

The trial court did not find there was a basis for a Terry stop. The trial court found there was only a basis for finding the officer was involved in a community-caretaking function. We conclude the trial court erred in its decision that Huckstep's conduct was a community-caretaking function. The community-caretaking function involves police conduct that is "'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" People v. Murray, 137 Ill. 2d 382, 388, 560 N.E.2d 309, 312 (1990), quoting Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 714-15, 93 S. Ct. 2523, 2528 (1973). When the police officer here asked defendant his name and immediately ran a warrant check, the police officer was investigating a criminal violation.

We go on to assert, however, that there was a valid Terry stop, despite the conclusion of the trial court (who heard the evidence) to the contrary, and the testimony of the police officer that he did not suspect that defendant was committing, had committed, or was about to commit, a crime. A Terry stop requires that the officer be able to point to specific and articulable facts which raise a reasonable suspicion that the person stopped has committed or is about to commit a crime. People v. Smithers, 83 Ill. 2d 430, 434, 415 N.E.2d 327, 330 (1980); People v. Sparks, 315 Ill. App. 3d 786, 792, 734 N.E.2d 216, 221 (2000).

An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a Terry stop. Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at 676. The fact that this officer had not seen defendant in the area, except for the last two to three days and that defendant "just continued to hang" in that immediate area, adds nothing to the equation. Important societal considerations are involved when police officers attempt to validate stops and seizures on the basis of the particular neighborhood involved. We should not overrule the trial court's determination that there was no basis here for a Terry stop.

20010620


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