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People v. Burk

Court of Appeals of Illinois, Second District

August 30, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DALE E. BURK, Defendant-Appellant. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DALE E. BURK, Defendant-Appellant.

Appeal from the Circuit Court of Du Page County. Nos. 10-CF-2683, 11-CF-967 Honorable John J. Kinsella, Judge, Presiding.

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Schostok and Spence concurred in the judgment and opinion.

OPINION

McLAREN, JUSTICE.

¶ 1 Defendant, Dale E. Burk, [1] brings these consolidated appeals from the denials of his motions to suppress evidence in two separate cases in the circuit court of Du Page County. We separately set forth the pertinent facts in each case as well as the analysis and disposition of the respective issues. Because the trial court did not err in denying the motion to suppress in either case, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. No. 2-12-0063

¶ 4 The following facts in this case are taken from the hearing on defendant's motion to suppress evidence. The only witness to testify at the hearing was Officer Daniel McIntyre of the Woodridge police department.

¶ 5 On November 12, 2010, at about 1:30 a.m., Officer McIntyre was patrolling in his unmarked squad car on a street adjacent to an apartment complex. As he drove down the street, he observed two individuals walking along the street's edge. As they walked, they went behind some "bushes and trees" located between the street and the apartment buildings. There was nothing about the street that forced them to walk behind the bushes and trees. The area in the vicinity of the bushes and trees was "real dark" because the nearby streetlights did not illuminate it. After 5 or 10 seconds, the two walked from behind the shrubbery, across the lane of traffic in which Officer McIntyre was driving, and onto the grassy median between the traffic lanes.

¶ 6 As they walked on the median, Officer McIntyre pulled up to them in his squad car and stopped in his lane of traffic. In doing so, he did not block their path of travel or activate the emergency lights on the squad car. He asked, "[H]ow you folks doing tonight?" He did not give them any commands such as ordering them to stop, nor did he raise his voice. Defendant responded, "[O]h I didn't even know you were in a squad car; I didn't even know who you were."

¶ 7 Officer McIntyre then exited his squad car and asked defendant and his female companion what they were up to and why they had been by the bushes and trees. He did so, in part, because it was near the holiday season and there had been an increase in vehicular and residential burglaries during that time of year, including in dark areas. Also, he, along with other patrol officers, had been asked to "beef up [their] patrols in the apartment complex." Thus, although there were no vehicles parked near the bushes and trees, Officer McIntyre approached defendant and his companion to "find out why they were in the apartment complex at 1:20 in the morning" and why they were "coming out from behind a bush and tree area which was adjacent to an apartment building where nobody ever walks."

¶ 8 Officer McIntyre also asked the two for identification, which each produced. After asking defendant for identification, Officer McIntyre observed that defendant was "sweating profusely, " his hands were shaking, and he was "fidget[ing] a lot."

¶ 9 Officer McIntyre then asked defendant if he had anything illegal on him, to which defendant answered "no" but told Officer McIntyre that he could search him. For safety reasons, Officer McIntyre opted to pat down defendant first as opposed to reaching into his clothing. In conducting the frisk, Officer McIntyre felt a bulge in defendant's right front pocket. When he asked defendant what was in the pocket, defendant responded that it was a pipe and "synthetic cannabis or fake weed."

¶ 10 Defendant gave Officer McIntyre permission to remove the items from his pocket. As Officer McIntyre reached into defendant's pocket, defendant fainted and fell into the squad car. Officer McIntyre caught him, laid him on the ground, and asked him if he was okay. Defendant, who had come to, stated that he gets "real nervous" when the police stop him. After defendant stood up, Officer McIntyre continued the search of defendant's person, but found nothing else.

ΒΆ 11 Because defendant had fainted, Officer McIntyre called for an ambulance. After it arrived, and while defendant was being treated, Officer McIntyre observed on the ground, where defendant had been lying, a cigarette pack, a foil pipe, and a plastic container holding a material that appeared to be real cannabis. Officer McIntyre looked into the cigarette pack and discovered a yellow plastic bag. The bag contained a "powdery ...


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