Appeal from the Circuit Court of Kendall County. No. 01-CF-225 01-TR-1181-82 Honorable Leonard J. Wojtecki, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
The State appeals from the trial court's order granting the motion of defendant, Charlie Morquecho to quash arrest and suppress evidence. We affirm.
Defendant was charged with one count each of unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(a)(2)(A) (West 2000)), unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2000)), and unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 2000)). The trial court granted defendant's motion to quash arrest and suppress evidence and subsequently denied the State's motion to reconsider. The State then filed a notice of appeal and a certificate of impairment.
At the hearing on the motion, defendant presented the testimony of Officer Jeff Ackland of the Plano police department. Ackland stated that, on the afternoon of August 5, 2001, he was assisting three Kendall County sheriff's deputies as they made an undercover drug purchase from a man named Antonio Gonzalez. Ackland's role was to detain "any other perp" in Gonzalez's car. The officers anticipated that another person would be with Gonzalez, although they did not know who that person might be. Ackland saw a black Ford Mustang enter the parking lot of the Eagle Dollar Store in Plano, where he was waiting in a van with the deputies. He recognized the vehicle as defendant's car from two prior contacts with defendant. Defendant was in the passenger seat and Gonzalez was driving. Ackland believed that Gonzalez got out of the car and entered an undercover police car; defendant did not enter that car. After a few minutes, Ackland received the "arrest signal," which meant that the drug buy had been made and that he was to detain the passenger. Up to that time, he had not seen defendant violate any law.
Ackland went to the passenger side of the car with his gun drawn and "asked" defendant to get out of the car. When defendant got out of the car "on his own free will," Ackland placed him on his stomach and handcuffed him. Ackland had no arrest or search warrant for defendant, nor did he receive defendant's consent to search his body. Deputy DeCamp patted down defendant and noticed a bulge in defendant's right sock. Inspector Whowell found cocaine in the sock.
Ackland had been a police officer for 2½ years and had arrested people on drug-related charges. None of those arrestees had been armed, but he had learned in his academy training that drug dealers and people in possession of narcotics often carry weapons.
The State presented the testimony of Inspector Chris Biggs of the Oswego police department. Biggs was assigned to the Kendall County Cooperative Police Assistance Team (CPAT), which was a county-wide drug task force. He had previously made undercover drug buys from Gonzalez and was to make another such buy on August 5, 2001. Biggs was alone in an undercover police car parked in the Eagle Store parking lot. Gonzalez drove up in a black Mustang with an unknown man in the passenger seat. Biggs subsequently identified defendant as the passenger. Gonzalez parked about 20 feet away from Biggs and entered the undercover car. After Gonzalez gave him cocaine, Biggs gave the prearranged arrest signal, and other officers arrested both Gonzalez and defendant. Biggs never saw defendant do anything other than sit in the car.
Biggs had been a police officer for four years and had been assigned to CPAT for 1½ years. He had training in narcotics enforcement and had been involved in undercover operations and executions of search warrants in drug cases. He learned that weapons are commonly involved in drug possession and delivery situations. Although the possibility of weapons was "always a concern going into a situation" involving narcotics, there were no particular facts that led the officers to believe that either Gonzalez or defendant was armed that day
The State also presented the testimony of Deputy Tim DeCamp of the Kendall County sheriff's department. He had been a deputy for about five years and had arrested people who either sold or possessed narcotics. On the afternoon of August 5, 2001, he was assigned to CPAT and was in the van in the Eagle parking lot. He never saw defendant leave the Mustang before "the detention and subsequent arrest." After the arrest signal was given, DeCamp and Ackland opened the passenger door of the Mustang and "asked" defendant to get out of the car. When defendant was partially out of the car, they grabbed him by the arm and "ask[ed] him to get onto the ground." He was then handcuffed behind his back. Defendant did not resist at any time. Based on his prior training and experience, DeCamp knew that narcotics dealers often carry weapons. He patted down defendant and noticed "an unusual bulge," smaller than a golf ball, in defendant's right sock. He testified that "it did not feel like a weapon." He did not roll it around or move it once he made contact with it. Believing that the bulge may have been narcotics, DeCamp notified Inspector Whowell, who subsequently removed what appeared to be narcotics from defendant's sock. Prior to arresting defendant, DeCamp did not see defendant violate any laws. At the time of the arrest, the police had "no concrete evidence" that defendant was involved in Gonzalez's delivery of cocaine; it was, however, "a possibility."
The trial court held that the police lacked probable cause to arrest defendant and granted the motion to quash arrest and suppress evidence. The court concluded:
"There is not even enough here for a Terry stop. There is not
even enough here to bring any suspicion that the defendant's
involved in any kind of criminal activity whatsoever. *** Clearly,
the defendant was under arrest in this case. An arrest signal was
given, the acts of the officer in taking him out of the car was
[sic] clearly an arrest, and even if I accept that it's not, there
are no facts that would lead me to believe that a pat down was
required of the defendant."
In reviewing a trial court's ruling on a motion to suppress, an appellate court may reverse the court's findings of historical fact only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). However, the appellate court must review de novo the ultimate conclusion of the trial court as to the existence of probable cause or reasonable suspicion. Sorenson, 196 Ill. 2d at 431.
The State does not argue that it had probable cause to arrest defendant because of Gonzalez's drug sale. Instead, the State contends that, given "the totality of the circumstances," the officers should have been permitted to detain defendant and search him for weapons. Pursuant to Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880 (1968), an officer may conduct a limited search for weapons once he reasonably concludes that the person whom he legitimately stopped poses a threat to his safety or the safety of others. People v. Gonzalez, 184 Ill. 2d 402, 421 (1998). The officer's conduct must be based on more than a mere hunch; it must be supported by specific, articulable facts that, when taken together with natural inferences, reasonably warrant a belief that the officer's safety, or that of others, is in danger. Gonzalez, 184 Ill. 2d at 422. The sole justification of such a search is to protect the police officer and others nearby, not to gather evidence. Sorenson, 196 Ill. 2d at 432. Because of this, the search must be limited in scope to a search designed to discover guns, knives, clubs, or other weapons that can be used to assault the officer or others. Gonzalez, 184 Ill. 2d at 421-22. If an officer wishes to search for ...