Appeal from the Circuit Court of Cook County. No. 10 CR 16227 Honorable Nicholas R. Ford,Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin concurred in the judgment and opinion. Justice Hall specially concurred, with opinion.
¶ 1 Defendant Jason Daniel was arrested after police stopped his vehicle due to an improper lane change and discovered suspected cannabis in the vehicle. Defendant was charged with two counts of aggravated unlawful use of a weapon after police discovered a gun case containing a gun in the backseat of the vehicle. Defendant filed a motion to quash arrest and suppress evidence, which the trial court granted. The State appeals, and we reverse.
¶ 3 Defendant was arrested on August 27, 2010, and was charged with two counts of aggravated unlawful use of a weapon. On March 24, 2011, defendant filed a motion to quash his arrest and suppress evidence, claiming that police arrested defendant without probable cause, an arrest warrant, or a search warrant.
¶ 4 During the suppression hearing on April 12, 2011, the defense presented two witnesses:
Chicago police officers Frank Miceli and Jason Van Dyke. Miceli testified that on August 27, 2010, he was working with two other officers, Officer Van Dyke and Officer Zumski,*fn1 at approximately 11:10 p.m. when they stopped a vehicle at 75th Street and Stony Island Avenue for making an improper lane change. Miceli activated the emergency equipment on his marked police automobile and the vehicle was pulled to the curb approximately half a block later. Miceli and the other officers then approached the driver's side of the vehicle on foot.
¶ 5 Miceli testified that as they approached the vehicle, he observed "several furtive movements by the driver and occupant." Miceli explained that "[t]he driver mainly made several movements with his torso, going down, reaching to the floorboard." Miceli observed defendant, the driver, make this motion several times, beginning when Miceli was in his police automobile turning on the emergency lights. The occupants of the vehicle continued to make movements after defendant pulled to the curb also and, "based on the movement that [he] saw from the defendant and the other occupants of the vehicle," Miceli was "afraid for [his] safety." Because he was afraid for his safety, Miceli drew his weapon when he exited the police automobile to approach defendant's vehicle.
¶ 6 As they approached the vehicle, Miceli "[g]ave several verbal directions" for everyone in the vehicle to raise their hands so the officers could view them. The passenger in the backseat immediately complied and placed his hands through the window, but defendant did not comply. Miceli testified that he could not observe defendant's hands, which were "down below."
¶ 7 Miceli testified that he "gave several 'hands up, hands up,' " but defendant refused to comply. Miceli ordered defendant to exit from the vehicle and opened the vehicle door for defendant to exit, handcuffing one of defendant's hands while he was still seated. Miceli completed handcuffing defendant and led him to the outside rear of the vehicle; the other two passengers were also ordered to exit the vehicle and were handcuffed.
¶ 8 Miceli testified that when defendant opened the door to exit the vehicle, Miceli observed a small plastic bag containing a green leaf-like substance on the floorboard of the driver's side of the vehicle, so Miceli placed defendant in custody; Miceli testified that the bag was approximately four inches long and an inch wide. After handcuffing defendant, Miceli searched him. The custodial search revealed another bag in defendant's pocket. Miceli testified that he could not observe the bags while defendant's door was closed. Miceli further testified that when defendant opened the door, Miceli did not observe a weapon in his hands.
¶ 9 Miceli testified that Officer Van Dyke performed an inventory search of the vehicle, during which Miceli was present. Miceli observed Van Dyke place a gun box on the hood of the police automobile.
¶ 10 Miceli admitted that he did not indicate in the case incident report of the event or defendant's arrest report that he ordered defendant to raise his hands or that he was unable to observe defendant's hands. Defendant was issued a ticket for the improper lane change.
¶ 11 Officer Van Dyke, the defense's second witness, testified that he
performed the inventory search on the vehicle defendant was driving
and recovered a black bag containing a locked black Taurus gun case.
Van Dyke discovered those items in the backseat of the vehicle and
placed them on the hood of the police vehicle. After reading defendant
his Miranda rights, Van Dyke
asked defendant if he wished to tell Van Dyke anything
about the gun box, and defendant informed Van Dyke that " 'that's my
gun and bullets. I was planning on going to the range.' " Defendant
possessed a firearm owner's identification card and showed it to Van
¶ 12 Van Dyke testified that the items were taken to the police station, where one of Van Dyke's partners cut the lock with a pair of bolt cutters and discovered a gun inside the box. The police did not attempt to obtain a search warrant prior to cutting the lock.
¶ 13 After both sides rested, the State argued that defendant's motion to suppress should be denied. During the State's argument, the trial court expressed its concern that "if they stopped you *** and they saw furtive movements in the car, they can ask you out of the car?" and that the police "got the cuffs on somebody before he finds out if they have a driver's license and proof of insurance, which are legitimate questions. He's already got the guy in cuffs." The State argued that Miceli's conduct demonstrated his fear, and the court stated:
"I will acknowledge this, their fear is valid, because, you know I've been to 76th and Stony Island. There is all kinds of terrible stuff that happens over there. But, no matter how poorly people behave, they still got rights. No matter how dangerous a community can become, and certain communities become very dangerous, they still have the constitution that protects them, all right."
¶ 14 The State argued that when the police observed the movements of the vehicle's occupants and defendant failed to comply with Miceli's request to show his hands, the police then had a legitimate reason to detain defendant. The court responded, "He didn't detain him, he put handcuffs on him." The court also noted that it was "not at all deprecating how serious every traffic stop is. I understand that, completely ***. It's just that, you know, while a traffic stop and some other -- I understand why -- I think it makes perfect sense why he acted the way he did. *** They were riding around with weed in the car and a gun in the back seat, which certainly doesn't get you a membership in the Chamber of Commerce, but it doesn't put cuffs on you for a traffic stop either."
¶ 15 The State argued that the police "had every right" to handcuff defendant immediately, based on the "furtive movements" of the vehicle's occupants and defendant's refusal to show his hands. The State further argued that when defendant was handcuffed, he was not arrested but was merely detained for the officers' safety; he was arrested after the police discovered marijuana in the vehicle "seconds" later. The court responded, "For future reference, any time someone has cuffs on them, they're under arrest. The Supreme Court said that, and I think that stands."
¶ 16 The State asked the trial court not to "ignore" the fact that defendant was refusing to raise his hands, and the court responded, "You can't, but there was not active malfeasances either. He's just not completely compliant. I mean, it's just a traffic ...