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In re Kendale H.

Court of Appeals of Illinois, First District, Fifth Division

December 27, 2013

In re KENDALE H., a Minor The People of the State of Illinois, Petitioner-Appellant,
v.
Kendale H., Respondent-Appellee

Held [*]

In an interlocutory appeal from the grant of respondent’s motion to suppress in proceedings on a petition for adjudication of wardship arising from the discovery of a shotgun shell in respondent’s clothing during a search thereof after he was shot by the police while he was running from their approaching car, the trial court’s erroneous ruling that a stop occurred while respondent was running away was reversed and the cause was remanded for a suppression hearing at which respondent may introduce evidence that he was shot and the State may respond to that evidence with an explanation of the actions of the police, and based on all of the circumstances surrounding the incident, the trial court should be able to resolve the case in a spirit of humane concern for all involved.

Appeal from the Circuit Court of Cook County, No. 11-JD-4911; the Hon. Carl Walker, Judge, presiding.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy M. Watroba, and Haley Peck, Assistant State’s Attorneys, of counsel), for the People.

Eileen M. O'Connor, of O'Connor Law Group, LLC, of Chicago, for appellee.

PRESIDING JUSTICE GORDON delivered the judgment of the Panel court, with opinion. Justice McBride specially concurred, with opinion, joined by Justice Palmer.

OPINION

GORDON PRESIDING JUSTICE

¶ 1 The only issue on this appeal is whether or not a seizure occurred.

¶ 2 The trial court held that respondent Kendale H., a minor, was seized during the police's vehicular chase of him, while he was running on foot in a vacant lot. On appeal, respondent argues that a seizure occurred when the police subsequently shot him in the abdomen. On appeal, the State does not argue that the shooting was justified, but argues only that no seizure occurred during the chase.

¶ 3 For the following reasons, we reverse the trial court's ruling that a seizure occurred during the chase and we remand for a suppression hearing at which the minor may introduce evidence that, at the end of the chase, he was shot by the police. Although there is no question that the shooting was a seizure, our remand provides the State with an opportunity to respond to this evidence.

¶ 4 In the case at bar, the State sought an adjudication of wardship on the ground that the minor respondent possessed one shotgun shell, which the police discovered during a search of respondent's clothing after the police shot him. The possession was illegal since respondent lacked a Firearm Owner Identification (FOID) card. Respondent moved to suppress the shell on the ground that it was the product of an unreasonable seizure in violation of the fourth amendment. After a hearing at which the sole witness was one of the arresting officers, the trial court granted the motion to suppress. The State then filed a notice of substantial impairment, and this appeal followed.

¶ 5 BACKGROUND

¶ 6 On November 16, 2011, the State filed a petition for adjudication of wardship that alleged five counts, including two counts of aggravated assault, one count of assault, one count of resisting a police officer, and one count of possessing firearm ammunition without a FOID card. On November 21, 2011, the trial court found that there was no probable cause to support any of the counts but the firearm ammunition count, which is a Class A misdemeanor carrying a maximum sentence of less than one year and a fine not to exceed $2, 500. 430 ILCS 65/2(a)(2), 14(e) (West 2012); 730 ILCS 5/5-4.5-55(a), (e) (West 2012).

¶ 7 I. The Probable Cause Hearing

¶ 8 At the arraignment on November 21, 2011, respondent stated that he was 17 years old, that he was currently a senior in high school, that he was graduating this year, that he was going to college in Memphis, Tennessee, after graduation, and that he resided with his mother and siblings. After the arraignment, the trial court proceeded directly to the probable cause hearing. On behalf of the State, the prosecutor stated:

"If called to testify under oath, Officer Mayes, spelled M-A-Y-E-S, star number 1-3-1-7-2, would testify under oath [that on] October 1st, 2011, [at] approximately 11:09 p.m., he was in or around the address of 6237 South Eberhart Avenue in Chicago, Cook County, Illinois 60637.
He would testify that on that date and approximate time, he was the passenger in a marked police car vehicle [sic] while on duty as a police officer. He would testify that his partner was driving the vehicle. He would testify that on that date and approximate time, he was driving down 63rd Street when he observed this minor along with two other individuals walking on [sic] that address.
He would testify that him–he and his partner decided to conduct a field interview on these three individuals. He would testify that as he drove towards the three individuals, these three individuals, including this minor, had looked in the officer's direction and separated and began to run.
He would testify that this–that he then–he and his partner, while in their car, then began to follow this minor, who fled northeast from 63rd Street and Vernon [Avenue] towards Eberhart [Avenue], and he testified–he would testify that this minor with–who was cut off from his northbound flight due to the stopping of the car in front of the minor, then reversed his direction and began to run southbound on Eberhart [Avenue].
He would testify that at this time, he exited his vehicle, identified himself as a Chicago Police Officer, and ordered the minor to stop. He would testify [that] this minor then continued to run southbound and then turned eastbound into the north alley of 63rd Street. He would testify that he had continued to chase this minor on foot while ordering him to stop running.
He would testify further that[, ] during the course of this chase, he observed this minor continually reaching into his waistband as he was running from the officer. He would testify that he believed that this minor was attempting to reach for an object in his waistband.
He would testify further that he ordered this minor to stop running, but this minor continued into the alley of Eberhart [Avenue] and ran northbound. He would testify that he followed this minor into that alley.
He would testify further that at 6239 Eberhart [Avenue], this minor turned towards him while reaching–stopped fleeing, turned towards him and reached into his waistband. He would testify that this minor then turned around and continued to flee. He would testify further that he then observed this minor jump over a chain link fence. He would testify that he then ran up to that fence, and while he was before the fence and this minor was past the fence, this minor then stopped and reached into his waist and began to withdraw his hands.
This officer would testify that fearing that this minor was about to pull out a gun, he pulled out his own gun and then in defense fired one time, striking this minor in the abdomen.
He would testify that this minor then fell to the ground. An ambulance was called, and then this minor ...

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