Appeal from the Circuit Court of Cook County Honorable Kenneth J. Wadas, Judge Presiding. No. 08 CH 11897
The opinion of the court was delivered by: Justice Murphy
JUSTICE MURPHY delivered the judgment of the court, with opinion.
Presiding Justice Steele and Justice Neville concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Cristen Rhinehart was found guilty of defacing identification marks of a firearm and aggravated unlawful use of a weapon and sentenced to one year of conditional discharge. On appeal, defendant contends that the trial court erred by denying his motion to suppress illegally obtained evidence, that the State failed to prove him guilty of aggravated unlawful use of a weapon or defacing identification marks of a firearm beyond a reasonable doubt, and that his convictions must be reversed because the statutes on which they are based violate his second amendment right to possess firearms for self-defense. For the reasons that follow, we reverse.
¶ 3 Defendant was charged with defacing identification marks of a firearm and aggravated unlawful use of a weapon. Prior to trial, defendant filed a motion to quash his arrest and suppress physical evidence discovered as a result of his arrest and detention and statements he made during the detention following his arrest where that evidence was illegally obtained. At the hearing on that motion, Chicago police officer Keith Kalafut testified that about 10:50 a.m. on June 2, 2008, he was on patrol when an unidentified citizen flagged him down, informed him that a black male wearing a white shirt and yellow pants had a gun, and provided him with the man's location. Officer Kalafut then proceeded to 2133 South Millard Avenue in Chicago, which was a high crime area, and saw defendant, who matched the description of the individual with the gun. Officer Kalafut identified himself as a police officer, then conducted a pat down search of defendant and found a gun.
¶ 4 Following Officer Kalafut's testimony, the prosecutor asserted that the officer had conducted a valid protective pat down search of defendant where defendant matched the description of the man with a gun in terms of appearance and location and was located in a high crime area. Defense counsel, citing Florida v. J.L., 529 U.S. 266 (2000), responded that the stop and search of defendant was not valid pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because it was based on an anonymous tip. The court then denied defendant's motion, finding J.L. distinguishable from this case because here the tip was provided in person by the informant, while in J.L., the tip was made anonymously and over the phone.
¶ 5 At trial, Officer Kalafut testified that about 11 a.m. on June 2, 2008, he was on patrol with Officer David McCray when an unidentified woman flagged them down east of Millard Avenue. The woman told the officers that a black male wearing a white shirt and yellow pants on the 2100 block of Millard had a black handgun. The officers proceeded to the 2100 block of Millard and saw defendant, who was wearing a white shirt and yellow pants and was standing next to another man. The officers exited their vehicle, announced that they were police officers, and approached defendant. The man standing next to defendant, who was later discovered to be his brother, ran into an apartment at 2135 South Millard, and Officer McCray chased after him.
¶ 6 Defendant, however, did not flee, and Officer Kalafut performed a protective pat down search of him and noticed a hard object on his right waistband that had the shape and feel of a handgun. Officer Kalafut recovered that item and determined that it was a Colt .45 and that its serial number had been scratched off. Defendant was subsequently provided his Miranda rights and taken to the police station, where he told Officers Kalafut and McCray that his brother had recently been killed and that the gun was for his protection. Defendant further informed the officers that he had bought the gun from a "crack head" on the street for $100.
¶ 7 Officer McCray also testified at defendant's trial, and his testimony was consistent with that of Officer Kalafut. Based on this evidence, the trial court found defendant guilty of defacing identification marks of a firearm and aggravated unlawful use of a weapon.
¶ 9 In this appeal, defendant first contends that his convictions must be reversed because the trial court erred by denying his motion to suppress illegally obtained evidence. In reviewing a trial court's ruling on a motion to suppress, we accept the court's findings of fact unless they are against the manifest weight of the evidence, but review its ultimate ruling as to whether suppression is warranted de novo. People v. Harris, 228 Ill. 2d 222, 230 (2008). In doing so, we may properly consider the testimony given at trial in addition to that provided at the suppression hearing. People v. Slater, 228 Ill. 2d 137, 149 (2008).
¶ 10 The United States and Illinois Constitutions guarantee citizens the right to be free from unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6. In Terry v. Ohio, 392 U.S. at 29-31, the United States Supreme Court held that a police officer "may, within the parameters of the fourth amendment, conduct a brief, investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of criminal activity." People v. Gherna, 203 Ill. 2d 165, 177 (2003). In addition, the Code of Criminal Procedure of 1963 provides that a peace officer, after having identified himself as such, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit, or has committed a criminal offense. 725 ILCS 5/107-14 (West 2008). ...