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In re Mario T.

September 28, 2007

IN RE MARIO T., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
MARIO T., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. No. 05 JD 4426 Honorable Lori M. Wolfson, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

Published opinion

Following a hearing, the respondent Mario T. was adjudicated delinquent based on his possession of cocaine and cannabis, and sentenced to one year's probation. On appeal, the respondent contends that the trial court erred in denying his pretrial motion to quash arrest and suppress evidence. We agree and reverse.

BACKGROUND

Prior to the adjudicatory hearing, the respondent filed a motion to quash arrest and suppress evidence. The respondent alleged that the police lacked justification for a protective pat-down search that resulted in the recovery of illegal drugs.

At the suppression hearing, Chicago police officer Hickey testified that at 8 p.m. on July 18, 2005, she and her partner went to 2964 S. State Street in response to a radio call that three males were breaking into a vacant unit on the second floor of the building. The officers proceeded to the second floor by separate stairways to investigate. Upon reaching the second floor of the six-story Chicago Housing Authority building, Officer Hickey and her partner observed four males "loitering"*fn1 in the hallway.

Officer Hickey testified that after observing the group for a "few seconds," she decided to conduct a field interview to determine "if they lived in the vicinity or in the building." Officer Hickey learned that they did not live in the 2964 building and that the respondent lived in apartment 406 of the 2940 S. State building. Fearing for her safety, Officer Hickey "performed a protective pat-down" by feeling around the respondent's waistline and pocket to ensure that he was unarmed. As she felt his front pocket, Officer Hickey "felt several small rock like objects." When she asked the respondent what it was, the respondent told her it was "rocks." Officer Hickey understood "rocks" to be crack cocaine. She then removed 26 rocks of suspected crack cocaine from the respondent's pocket, placed him into custody, and performed a second custodial search which revealed four Ziplock baggies of suspected marijuana.

Officer Hickey testified that she feared for her safety because the 2964 building is known as an area of high narcotics and gang activity and, in her experience, weapons are often associated with drug offenses. Officer Hickey testified that she had been a Chicago police officer for five years and had made 50 to 100 narcotics arrests. She had made 10 to 20 arrests at this address. She estimated she had made 10 to 20 arrests where both drugs and weapons were involved.

Regarding the timing of the pat-down in relation to the field interview, Officer Hickey testified "Yeah, after I spoke with him, yes, I patted him down while I was speaking with him." The respondent was cooperative; he did not attempt to run away nor did he make any threatening gestures.

The respondent testified that he was on his way to his sister's apartment on the fifth floor of the 2964 S. State Street building when police stopped him and his three friends on the second floor. The respondent said that the police "put us on the wall and went in our pockets" and found "weed and rocks" in his pocket. The respondent testified that he told the police at the beginning of the encounter that he was on his way to visit his sister.

In support of the motion, defense counsel argued: "Under the State's Attorney's theory, then everyone that lives there at any point is subject[] to a reasonable search and seizure by the officers because going by that theory, anyone that lives in that area is under suspicion based on the fact that they simply live there."

As to its reasoning for denying the respondent's motion to quash arrest and suppress evidence, the trial court stated:

"[Based] on the officer's experience and based on the circumstances, the circumstances being two officer[s] alone in a hallway with four males. The circumstances being the experience that this officer has regarding drugs and investigations in areas where drugs are prevalent, the officer's experience with guns, the [Terry] analysis and search analysis is not a two-prong analysis, it's three-prong analysis of whether [there's] sufficient basis for the stop. Second, whether there's a sufficient basis for a limited search. And third, whether there's a sufficient basis for a weapons frisk. I believe it was a limited search on the officer's reasonable belief that they could be in danger. The articulated facts that made her concern[ed] for her safety ***, a limited search to determine whether the minor had any weapons [by] which she could be harmed. * * * I do believe that she had a right to make a limited search [under] the circumstances of the case ***."

An adjudicatory hearing ensued wherein the parties stipulated to the evidence presented at the suppression hearing. The parties also stipulated that Nancy McDonagh, a forensic chemist with the Illinois State Police crime lab, would testify that the recovered items tested positive for cocaine and cannabis. She estimated the cocaine weighed 15 grams and the cannabis weighed .5 grams. The parties further stipulated that a proper chain of custody was maintained at all times. The court found the respondent delinquent and sentenced him to probation for one year. The respondent renewed his motion to quash arrest and suppress evidence posttrial, which the court denied.

ANALYSIS

A. Initial Encounter

On appeal, the respondent concedes that the initial encounter was lawful, but contends that the subsequent search was not. The State contends that based on the respondent's concession that the "stop" was lawful, we need only examine the subsequent frisk to determine whether the officer's action was justified. While we agree that the initial encounter between the respondent and the officers was lawful, this is so because it was not a "stop" under Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968). Rather, it was a "third tier" encounter between officers and citizens involving no coercion or detention and hence no implication of fourth amendment interests. See People v. Luedemann, 222 Ill. 2d 530, 544, 857 N.E.2d 187 (2006) (three tiers of police-citizen encounters: (1) arrests, requiring probable cause; (2) Terry "stops," requiring reasonable, articulable suspicion of criminal activity; and (3) encounters without "coercion or detention and thus do not implicate fourth amendment interests"). Officer Hickey testified that after viewing the respondent and his companions for a "few seconds," she and her partner approached the respondent for a "field interview." According to Officer Hickey her intent in speaking with the group was to determine "if they lived in the vicinity or in the building." Thus, it does not appear that the purpose in conducting the field interview was to conduct a forceful stop. At its inception, the field interview did not involve coercion or detention. See People v. Thomas, 315 Ill. App. 3d, 849, 853, 734 N.E.2d 1015 (2000), aff'd 198 Ill. 2d 103, 759 N.E.2d 899 (2001) (officer's "intent and design" in encounter with citizen gives meaning to the term "field interview").

However, sometime in the course of speaking to the respondent, Officer Hickey patted him down, which resulted in the discovery of the cocaine. Once Officer Hickey began the protective pat-down, it changed the fundamental nature of the encounter from a consensual one into a full-blown Terry stop. See generally People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003). Thus, the "stop" and the "frisk" occurred simultaneously. See Florida v. J.L., 529 U.S. 266, 146 L.Ed. 2d 254, 120 S.Ct. 1375 (2000); People v. F.J., 315 Ill. App. 3d 1053, 734 N.E.2d 1007 (2000); In re S.V., 326 Ill. App. 3d 678, 761 N.E.2d 248 (2001). We analyze the "stop and frisk" from the point of the pat-down to determine whether the police action was justified under Terry.

B. Standard of Review

Mixed questions of law and fact are presented upon review of an order denying the respondent's motion to quash arrest and suppress evidence. People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93 (2004). We will not disturb the trial court's findings of historical fact unless they are against the manifest weight of the evidence. Pitman, 211 Ill. 2d at 512. With the trial court's findings of historical fact in mind, we review de novo the trial court's ultimate legal ruling as to whether suppression is warranted. Pitman, 211 Ill. 2d at 512.

The respondent contends that because he does not challenge the substance of Officer Hickey's testimony, this case presents a legal rather than a factual question, and the standard of review should be de novo, citing People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310 (1996). However, Dilworth was decided before our supreme announced its decision in People v. Sorenson, 196 Ill. 2d 425, 430-31, 752 N.E.2d 1078 (2001), to follow the federal standards set out in Ornelas v. United States, 517 U.S. 690, 134 L.Ed. 2d 911, 116 S.Ct. 1657 (1996). "[W]e will accord great deference to the trial court's factual findings, and we well reverse those findings only if they are against the manifest weight of the evidence; however, we will review de novo the ultimate question of the defendant's legal challenge to the denial of his motion to suppress." Sorenson, 196 Ill. 2d at 431.

While we question whether the application of either standard of review as to the historical facts would make any difference in the disposition we reach, we see no reason to apply a standard of review other than manifest weight of the evidence even where the testimony in the State's case is essentially uncontested on appeal. This we believe is consistent with the deference to be accorded to the trial court's findings reviewed in light of the trial court's ultimate determination denying the respondent's motion. Our focus instead is on the legal question of the justification of the stop and frisk so as to warrant the denial of the respondent's motion to suppress, a ruling we review de novo. Independent appellate review of the ultimate decision to deny relief is appropriate, at least in part, because "'de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined "set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement."'" In re G.O., 191 Ill. 2d 37, 47, 727 N.E.2d 1003 (2000), quoting Ornelas, 517 U.S. at 697-98, 134 L.Ed. 2d at 919-20, 116 S.Ct. at 1662, quoting New York v. Belton, 453 U.S. 454, 458, 69 L.Ed. 2d 768, 773, 101 S.Ct. 2860, 2863 (1981). "A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary ...


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