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People v. Torres

March 19, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSE TORRES, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. No. 02 CR 5209 Honorable Catherine Haberkorn, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Reid

[8]  Following a stipulated bench trial, the defendant, Jose Torres, was found guilty of two counts of aggravated unlawful use of a weapon and sentenced to serve 18 months' probation. On appeal, Torres argues that the trial court should be reversed because: (1) it erred when it denied his motion to suppress evidence because the arresting officers had no legal justification to remove him from his vehicle, pat him down, demand his identification and conduct a name check and (2) the aggravated unlawful use of a weapon statute is unconstitutional and violates due process because it does not require a culpable mental state. For the reasons that follow, we reverse the decision of the trial court.

[9]  BACKGROUND

[10]   Torres was charged by information with two counts of aggravated unlawful use of a weapon (UUW) under section 24-1.6(a) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(West 2002)). Prior to trial, Torres filed a pretrial motion to suppress evidence. In the motion, Torres claimed that the arresting officers lacked the requisite probable cause to effectuate his arrest and requested that the trial court find that his arrest was illegal and subsequently suppress the evidence. The trial court held an evidentiary hearing on the motion.

[11]   At the hearing, Officer Joe Kurpiel testified on direct examination that he and his partner were in the area of 4243 West Lawrence Avenue, in Chicago, Illinois on February 6, 2002, at approximately 10:10 p.m. At that time, the officers were in a police vehicle and conducting a routine patrol.

[12]   As they were driving, Kurpiel testified that he saw a parked truck in a Clark gas station. In the vehicle, he saw what he characterized as a domestic altercation taking place between Torres and a woman. Kurpiel indicated that it appeared that Torres and the woman were having more than just a conversation. Kurpiel explained that he saw "hands flying" and the female "looking very submissive." When shown a copy of the police report that he made, Kurpiel testified that this information did not appear in the report.

[13]   After he and his partner approached the parked truck, Kurpiel testified that he spoke to the female passenger and his partner spoke to Torres, who was in the driver's seat. Kurpiel said that he asked the female if "everything was okay" and that she said "yes." Kurpiel said that she informed him that Torres was her boyfriend and that the two were having an argument because he had been seeing another woman. She explained that the two were trying to work things out.

[14]   Kurpiel said that he never saw Torres strike the female or do anything of that nature. Furthermore, Kurpiel testified that Torres never committed a crime in his presence. However, at this time, the two officers did not leave. By now, Kurpiel's partner had Torres out of the vehicle and was asking Kurpiel to run a name check on him. When Kurpiel ran the name check on Torres, it revealed that Torres had a warrant for driving under the influence (DUI).

[15]   The officers then placed Torres under arrest and conducted a search of his person and his vehicle. Their search revealed a gun magazine in Torres' pocket and a fully loaded and cocked handgun, which was in the console of the vehicle.

[16]   On redirect, Kurpiel testified that at the time that he asked the female passenger if everything was okay, his partner had already removed Torres from the vehicle and patted him down. He stated that this was done so that she could speak more freely to the officers. Additionally, Kurpiel said that he did not inform his partner that she had already told him that everything was all right until after he had run the name check on Torres. Kurpiel also testified that, prior to his running the name check, he did not recall his partner finding the gun clip on Torres.

[17]   Rosea Cordero testified that on February 6, 2002, at approximately 10 p.m., she and Torres were in his truck, which was parked in a Clark gas station. Cordero acknowledged that she was Torres' girlfriend and testified that she was driving his truck because Torres' license was suspended. Cordero said that she had pulled into the gas station so that she could buy some cigarettes.

[18]   She then pulled over to where the pay phones were so that she and Torres could figure out where they were going next. She said that the two were not having an argument. Cordero testified that Torres was not waiving his hands and that she did not feel threatened by him at anytime while they were sitting in the vehicle.

[19]   At this time, an unmarked police car pulled up behind them. One of the officers came over to the driver's side where she was sitting. She stated that she rolled down her window, and the officer asked her if everything was "okay." She told him "yes" and the officer then asked her for her driver's license and insurance.

[20]   The officer then asked Cordero what the two of them were doing there. He returned her license and insurance card and asked her to step out of the car. Cordero said that she was the first person to exit the truck. After she exited the vehicle, the officer made a comment about there being problems in the neighborhood with drugs and started searching the car without anyone's permission.

[21]   Torres testified that on the evening of February 6, 2002, Cordero, who was driving his truck, picked him up at his home. Torres had previously lent his truck to Cordero so that she could drive to work. At approximately 10:10 p.m., Cordero drove to the Clark gas station on Lawrence and Kildare Avenues. Torres said that while he and Cordero were in the truck, they were having a discussion regarding where they should go next. Torres said that they were not having a loud discussion and that he was not waiving his arms while they spoke. At this time, an unmarked police vehicle approached his truck.

[22]   An officer exited the unmarked vehicle, walked up to his truck, knocked on the driver's side window and asked Cordero if she was "okay." She told him "yes." The officer then asked Cordero for her license and proof of insurance. She was then asked to exit the vehicle.

[23]   At this point, another officer asked Torres to exit the vehicle as well. This officer then patted Torres down. Afterwards, the officer then began searching his vehicle, where he found a gun and a gun clip. Torres admitted that the gun belonged to him and testified that he informed the officers of this. At this point, Torres said that he was placed under arrest.

[24]   Torres testified that after the gun was found, the officers placed him in their vehicle and at that point asked him for his name. The officers then ran a name check, at which time they learned that Torres had a warrant for a DUI.

[25]   After the evidentiary hearing, the trial court denied Torres' motion to suppress the evidence. The trial court found that the officers observed a heated discussion between Torres and Cordero. The trial court also determined that the officers had a right ...


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