Appeal from the Circuit Court of Cook County. No. 10 CR 13057 Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice R. Gordon
JUSTICE R. GORDON delivered the judgment of the court, with opinion. Justice Palmer concurred in the judgment and opinion.
Justice Garcia dissented, with opinion.
¶ 1 Following a bench trial, defendant Tommy Jackson was convicted of two counts of unlawful use of a weapon by a felon. After hearing factors in aggravation and mitigation, he was sentenced as a Class X offender to 74 months in the Illinois Department of Corrections due to his criminal background. On appeal, defendant argues that the loaded handgun found in his backpack should have been suppressed because police officers lacked both (1) a reasonable suspicion to justify the Terry stop and (2) a reasonable belief that he was armed and dangerous which was needed to justify the frisk. For the following reasons, we affirm.
¶ 3 Defendant was convicted of two counts of unlawful use of a weapon by a felon after a combined suppression hearing and bench trial. Chicago Police Officer Gary Anderson was the only witness that testified.
¶ 4 Officer Anderson testified that he had been on the force for three years, and that shortly after midnight on July 7, 2010, he was driving a marked squad vehicle with his partner. As he drove eastbound in the 3900 block of West Ferdinand Street in Chicago, he observed defendant with a backpack "walking westbound on Ferdinand at a rapid pace" and observed that defendant was watching his vehicle. We take judicial notice of the fact that this address is within the Humboldt Park neighborhood of Chicago. About 10 minutes later, Anderson observed defendant walking south on Pulaski toward Ferdinand. Anderson observed defendant "walking again at a rapid pace and this time paying more attention to us." Defendant "was directing his attention towards us the whole time that we drove by."
¶ 5 As the officers drove past defendant a second time, they noticed unusual behavior by defendant in that "we could see that he was still looking at us even when we had already passed him." The officers circled the block to return to defendant "to conduct a field interview." Officer Anderson described the stop as follows:
"Q. And what was the defendant doing at the time that you stopped your car?
A. When we stopped our car, he was standing on the corner.
Q. What, if anything, was the defendant doing?
A. When we got out of the our car, he began to act a little erratic.
Q. When you say he acted erratic, what do you mean by that?
A. He began speaking before we even asked any questions, moving his arms, flailing about, moving backwards.
Q. You said he was speaking?
A. I couldn't even understand what he was saying.
Q. What did your partner do after you stopped your vehicle?
A. We told him to put his hands on the hood of the car.
Q. And what was the purpose in doing that?
Q. Did the defendant comply?
A. We repeatedly asked him to put his hands on the vehicle.
Q. And at any time while you were out there, did the defendant put his hands on the vehicle?
A. He repeatedly put them on and take them off [sic].
Q. What was he doing with his arms while you were approaching him?
A. Pointing, flailing, all kinds of movements.
Q. At that point when the defendant refused to keep his hands on the vehicle, what did you do?
Q. When you say you detained him, how did you go about doing that?
A. We put his hands in cuffs."
¶ 6 Anderson testified that he performed a "protective pat down" of defendant and his backpack after defendant was handcuffed. In manipulating the backpack, the officer felt a "large metal object" he believed was the barrel of a gun. The officer opened the backpack and observed a handgun, which was ...