Appeal from the Cook County. No. 08 CR 10139 Honorable John A. Wasilewski, Judge Presiding.
The opinion of the court was delivered by: Justice Salone
JUSTICE SALONE delivered the judgment of the court, with opinion. Presiding Justice Steele concurred in the judgment and opinion. Justice Murphy specially concurred, with opinion.
¶ 1 Following a bench trial, defendant Darrell Surles was found guilty of multiple charges surrounding his possession of a revolver. The trial court merged its findings into a single conviction for violating the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2008)), predicated on two of defendant's prior convictions for unlawful use of a weapon by a felon and aggravated unlawful use of a weapon by a felon. Defendant filed a timely motion for a new trial, which was denied. On appeal, defendant contends that the trial court erred in denying his motion to suppress where: (1) he was placed under arrest without probable cause when he was handcuffed; or alternatively, (2) he was subjected to an unlawful Terry stop and frisk because the officer had no reasonable articulable suspicion that defendant was armed. For the following reasons, we reverse defendant's conviction and remand the matter for a new trial, with instructions.
¶ 3 Prior to trial defendant moved for the revolver recovered from his person to be suppressed because it was obtained as the result of an illegal search. During the hearing on defendant's motion, Chicago police officers McGrew and Solana testified as to their encounter with defendant on May 6, 2008.
¶ 4 Officer McGrew stated that he was on duty with his partner in a marked squad car on May 6, 2008, at approximately 6:40 p.m., when his partner, Officer Jesse, curbed a late-model four-door sedan for failing to stop at a stop sign near 407 West 57th Street, in Chicago. The officers approached the vehicle, which was occupied by three males who were described as all being in their twenties. Shortly after the vehicle was curbed, four additional officers, including Officer Solana, arrived on the scene to assist with the stop. Officer McGrew testified that the area was a high-crime area and that there had been an increase in shootings in the preceding month due to a dispute between factions of a local street gang. He approached the vehicle from the passenger side, while his partner simultaneously approached from the driver side. McGrew could not recall whether his weapon was drawn, but he believed that he had his hand on it as he approached the vehicle.
¶ 5 Defendant was in the front passenger seat of the vehicle and remained there while Officer Jesse questioned the driver. Officer Jesse asked the driver to exit the vehicle after he was unable to produce a valid driver's license. At that point the driver was placed under arrest and the officers decided to inventory the vehicle. As a result, defendant and the other passenger were ordered out of the car.
¶ 6 Officer McGrew testified that he placed the rear passenger in handcuffs for McGrew's own personal safety and passed him to Officer Solana for a protective pat-down search. He then ordered defendant out of the vehicle and handcuffed him behind his back before passing defendant to Officer Solana. Officer McGrew stated that he did not have a clear view of defendant's front before he handcuffed him because defendant exited the vehicle with his back toward him. He stated that he did not see the handgun before he handcuffed defendant and that anywhere from 90 seconds to 4 minutes passed from the time the vehicle was stopped until the revolver was recovered.
¶ 7 At the time that he handcuffed defendant, Officer McGrew testified that there was a total of six officers on the scene, including himself, and that the other two occupants of the vehicle were already handcuffed. According to Officer McGrew, "[u]ntil we figure out what's going on we put him in handcuffs." Officer McGrew went on to state that due to the reported increase in violence in the area he felt a heightened level of concern for his safety with every traffic stop in that area.
¶ 8 He stated that other than the gang violence in the area, defendant gave him no reason to believe that defendant would harm him prior to placing him in handcuffs. He "want[ed] to play everyone safe." He was not familiar with the vehicle nor its occupants before the traffic stop on May 6, 2008. When they curbed the vehicle, he did not have a search warrant for the vehicle nor any arrest warrants for the occupants of the vehicle. In addition, he stated that he did not observe either of the passengers doing anything illegal, improper, or threatening, before he handcuffed them.
¶ 9 Officer Solana also testified to the events surrounding defendant's arrest. He was positioned at the rear passenger side of the vehicle while Officers McGrew and Jesse conducted the traffic stop. Once defendant stepped out of the vehicle Officer McGrew handcuffed him, held his arm, and walked him to Officer Solana. Officer Solana described observing a "slight bulge" that he approximated to be two or three inches long on the right side of defendant's waistband under his shirt. Upon performing the pat down of defendant he felt that the object was hard and believed it was a weapon. Officer Solana then lifted defendant's shirt and observed it was a small revolver.
¶ 10 Defense counsel questioned Officer Solana regarding his basis for the pat-down search and the following colloquy occurred:
"Q. At the point that Officer McGrew handed him off to you, did you feel in danger from Mr. Surles?
A. We don't know who these people are. We do protective pat downs on basically everybody. We don't know if he's got a weapon or not. Like I said, I saw the bulge. I believe it to be a weapon so.
Q. Do you consider this a dangerous area?
A. It was an extremely dangerous area at the time. It was shootings everyday.
Q. Apart from this lump or bulge you saw at the waistband of Mr. Surles anything else; was his conduct anything that would make you nervous or afraid?
¶ 11 Officer Solana further testified that he decided on his own to do the pat down search once he saw the bulge in defendant's pants. Once he saw the bulge in defendant's waistband he felt afraid for his safety because he thought that it could be a gun, based on all of the shootings in the area. The trial court then questioned Officer Solana regarding the amount of light at the time of the search, and he stated that he had no difficulty seeing, because the sun was just starting to go down.
¶ 12 Following argument, the trial court concluded that the essential issue to be resolved was whether the handcuffing defendant was premature. The trial court found that the area was a war-like zone and likened it to Afghanistan or Iraq, before concluding that the handcuffing of defendant was inconsequential because the officers would have discovered the handgun in defendant's waistband during the pat down ...