Appeal from the Circuit Court of Cook County Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Epstein
PRESIDING JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.
¶ 1 Defendant Derek Harris was arrested on April 23, 2010, and was charged with aggravated unlawful use of a weapon pursuant to sections 24--1.6(a)(1) and (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24--1.6(a)(1), (a)(3)(A) (West 2008)). Defendant moved to quash the arrest and suppress the weapon recovered by the police at the time of the arrest. After initially denying defendant's motion, the trial court, on reconsideration, granted the motion to suppress the weapon. The State appeals that decision pursuant to Supreme Court Rules 604(a)(1) and 606. Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2006); R. 606 (eff. Mar. 20, 2009). For the reasons stated below, we affirm.
¶ 3 Defendant was arrested for aggravated unlawful use of a weapon on April 23, 2010. On June 18, 2010, defendant filed a motion to quash his arrest and suppress all evidentiary products of that arrest, including a handgun recovered by the police during a protective search. Defendant argued that his seizure and arrest were made in violation of the fourth amendment to the United States Constitution. U.S. Const. amend IV. At the August 11, 2010, suppression hearing, the following evidence was adduced through the testimony of Chicago police officer Daniel Goon, the only witness presented.
¶ 4 On April 23, 2010, Officer Goon and his partner, Officer Doolin, were patrolling in the vicinity of 9126 South Oglesby Avenue, Chicago, Illinois, an area the State characterized as "one of high burglaries and high robberies." They were in plain clothes and an unmarked vehicle. At approximately 9:30 p.m., Officer Goon observed defendant and another man walking in his direction. The men did not appear to be committing any crime, nor could the officers see that the men were armed. Officer Doolin began to drive toward the two men who, according to Officer Goon, then looked in their direction and appeared to hide behind a car. The officers got out of their vehicle, announced their office, and approached the men for a field interview. Defendant and his companion then fled toward a nearby house, and Officers Goon and Doolin gave chase, eventually stopping the men on a porch. The officers performed a protective pat down search of the men, during which Officer Doolin felt an object on defendant that he believed to be a weapon. Defendant told Officer Doolin that the object was a gun. Officer Doolin then recovered a .22-caliber handgun from defendant and placed him and his companion under arrest.
¶ 5 After hearing this evidence, the trial court denied defendant's motion to quash and suppress. The court found that Officer Goon's testimony was credible and defendant's flight from the police was "[t]he compelling thing" justifying the brief investigatory stop, despite the fact that Goon "may not be able to articulate what was going on, except that Mr. Harris was trying very hard to get away from the police." On reconsideration, however, the trial court vacated its prior ruling and suppressed the weapon in light of Illinois v. Wardlow, 528 U.S. 119 (2000), finding that defendant's conduct was "neutral." The State appeals, contending that the stop and search of defendant were justified because he attempted to evade the police in a high crime area. Defendant responds that the stop was unjustified because the police lacked reasonable suspicion that a crime was being committed, and the search was unjustified because the police had no reason to believe defendant was armed and dangerous.
¶ 7 The standard of review for evaluating a trial court's decision on a motion to suppress evidence recovered during a warrantless "stop and frisk" is well established and uncontested.
"Generally, a trial court's decision on a motion to suppress evidence is subject to reversal only if it is clearly or manifestly erroneous. [Citation.] This test is based on the understanding that suppression motions usually raise mixed questions of law and fact: a court first weighs the evidence and determines the facts surrounding the complained-of conduct, after which it decides whether, as a matter of law, these facts constitute unconstitutional seizure." People v. Thomas, 198 Ill. 2d 103, 108 (2001).
The trial court's application of law is reviewed de novo. People v. F.J., 315 Ill. App. 3d 1053, 1056 (2000).
¶ 8 In this case, we are presented with two questions: (1) whether the investigatory stop of defendant was justified, and (2) whether the protective search of defendant was justified. These are distinct but related inquiries. "The fact that a police officer has reason to stop an individual does not necessarily mean that the additional intrusion of a search for weapons will also be warranted." Id. at 1055. We will address each issue in turn.
¶ 9 I. The Investigatory Stop
¶ 10 The fourth amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. "This provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." Thomas, 198 Ill. 2d at 108. "Reasonableness under the fourth amendment generally requires a warrant supported by probable cause." Id. In the seminal case of Terry v. Ohio, however, the Supreme Court recognized a limited exception to the probable cause requirement, allowing police officers, under appropriate circumstances, to briefly stop a person for temporary questioning where the officer reasonably believes that the person has committed or is about to commit a ...