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People v. Davis

August 27, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, OF KANE COUNTY. PLAINTIFF-APPELLANT,
v.
MCKINLEY L. DAVIS, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court No. 02-CF-1807. Honorable Grant S. Wegner, Judge, Presiding.

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

[8]  Defendant, McKinley L. Davis, was seen riding his bicycle at nighttime without a light (see 625 ILCS 5/11--1507(a) (West 2002)). Two officers in the area advised defendant of this violation, and, while talking with defendant, one of the officers observed defendant acting nervously and attempting to put his hand in his pocket. That officer frisked defendant, detecting a box cutter in defendant's pocket. When the officer removed the box cutter from defendant's pocket, a baggie of cocaine was discovered. Defendant subsequently was indicted for unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2002)). He moved to quash his arrest and suppress the evidence seized, contending that the frisk was improper because the officers lacked reasonable grounds to believe that he was armed and dangerous. The trial court granted the motion. Following the denial of a motion to reconsider, the State filed a timely notice of appeal (see 188 Ill. 2d R. 604(a)(1)) and a certificate of impairment. We affirm.

[9]  At the suppression hearing, defendant testified that he was riding his bike to a convenience store in Elgin at approximately 12:41 a.m. on August 7, 2002. Defendant acknowledged that it was dark outside, and he admitted that he did not have a light on his bike. When he arrived at the store, he bought a soda and cigarettes. Defendant then stood in front of the store, which was well-lit, smoking a cigarette and drinking his soda. Soon afterwards, a marked squad car pulled in front of the store. One of the officers in the car called out to defendant, asking him to "come here." Defendant walked over to the squad car, carrying his lit cigarette and soda.

[10]   The officers told defendant that he could not ride his bike at nighttime without a light. Defendant told the officers that he would not do so and that he would walk instead. The officers asked defendant for his name and told him that a computer check revealed that a parole warrant was issued against him. Defendant advised the officers that there was no such warrant, and he asked the officers to contact his parole officer for verification. The officers told defendant that they could resolve the matter at the police station. Defendant denied looking around or attempting to put his hand in his pocket while he talked with the officers, noting that he was carrying his cigarette in one hand and his soda in the other hand.

[11]   After the officers informed defendant about the parole warrant, they asked him to turn around. Defendant let go of the cigarette and soda he was carrying, and the officers handcuffed him. The officers then searched his pockets and found cocaine. Defendant testified that the cocaine was in his front pocket, and, in his back pocket, he was carrying a box cutter, which was admitted into evidence.

[12]   Officer Sheehan, one of the two officers who arrested defendant, testified that he had been a police officer for almost five years. Based on his experience as an Elgin police officer, Officer Sheehan believed that the area around the convenience store was a "high crime area," noting that many drug transactions took place there. Officer Sheehan specified that he had made drug arrests at that location on three or four occasions.

[13]   While Officer Sheehan and his partner, Officer Trost, were parked in the convenience store parking lot, they saw defendant ride his bike in front of their squad car. Officer Sheehan asked defendant to come speak with them, and defendant complied. Defendant was not carrying anything in his hands at that time.

[14]   The officers, who intended to issue defendant a traffic ticket for riding his bike without a light, asked defendant for his identification, which he did not produce. The officers proceeded to ask defendant various questions, such as his name and where he was going. Although the officers did not tell defendant that a parole warrant was issued against him, "[o]ne of [them] mentioned something about a possible *** [National Crime Information Center (NCIC)] hit."

[15]   During this questioning, defendant appeared nervous. Specifically, defendant was fidgeting, looking around, and "frantically" attempting to "dive" into his right-front pocket. When defendant's fingers were inside of his pocket, the officers asked to see his hands. Although defendant initially complied with the officers' orders, he soon attempted to reach back into his pocket.

[16]   Fearing for their safety, the officers, who were still seated in the squad car, exited their vehicle and handcuffed defendant. Officer Sheehan testified that, after he handcuffed defendant, he patted down defendant's right-front pocket. While patting down defendant with the palm of his hand, Officer Sheehan felt something he thought was a box cutter. When Officer Sheehan pulled the box cutter out of defendant's pocket, a clear baggie containing cocaine was simultaneously discovered.

[17]   Andre York, defendant's friend, testified that he saw defendant riding his bike to the convenience store. As defendant rode past York, York told defendant that he thought the police were watching him. When defendant went into the convenience store, York saw the squad car drive around the corner without its lights on and pull in front of the store. After defendant exited the store, York heard the officers say something to defendant and saw defendant walk up to the squad car.

[18]   The trial court granted defendant's motion to quash his arrest and suppress the evidence seized. In reaching this conclusion, the trial court addressed the inevitable discovery rule, the "plain touch" doctrine, and whether the evidence supported a reasonable inference that defendant was armed and dangerous. In addressing the inevitable discovery rule, the trial court found that the cocaine would not have been inevitably discovered because no evidence suggested that an independent investigation was underway that would have led to the cocaine's discovery.

[19]   Likewise, the trial court did not believe that the cocaine would have been found pursuant to the "plain touch" doctrine. The trial court noted that, through a proper frisk, it would not have been immediately apparent that the item in defendant's pocket was a box cutter.

[20]   Lastly, the trial court evaluated whether Officer Sheehan had reason to believe that defendant was armed and dangerous. The trial court observed that riding a bike without a light was a proper basis to stop defendant, noting that Officer Sheehan had no intention to arrest defendant or take him into custody for that offense. However, even though the stop was proper, the trial court did not believe that the officers were justified in patting down defendant for weapons once he was stopped. Although the offense occurred at night, which may have warranted a pat-down search, the trial court believed that the other evidence did not create a reasonable belief that defendant was armed and dangerous. Specifically, the trial court found that nervousness, alone, is not a basis to conduct a pat-down search, that there was no evidence that defendant ...


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