Modified Upon Denial of Rehearing February 28, 2014
Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Appeal No. 3-12-0338 Circuit No. 10-CF-1024 Honorable Timothy M. Lucas, Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justices Carter and Holdridge concurred in the judgment and opinion.
¶ 1 The defendant, Omar Porter, was convicted of armed violence (720 ILCS 5/33A-2(a) (West 2010)) after a stipulated bench trial, following the denial of his motion to quash his arrest and suppress evidence. The defendant appealed.
¶ 2 FACTS
¶ 3 The defendant was arrested on October 2, 2010, and found in possession of a loaded handgun and approximately five grams of cocaine. He was later indicted for armed violence (720 ILCS 5/33A-2(a) (West 2010)), unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)), two counts of aggravated unlawful use of weapon (720 ILCS 5/24-1.6(a)(1) (West 2010)), and unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2010)). The defendant filed a motion to quash his arrest and suppress evidence, arguing that the evidence was discovered during an unlawful arrest and seizure. The trial court held a hearing on the motion.
¶ 4 Peoria police officer Denise White testified that she arrived at a home on Northeast Monroe Street in Peoria at 3:56 am on October 2, 2010, in response to a possible home invasion. The victim told White that she had been sleeping on the couch and woke up to find a man standing over her shining his cell phone light at her. The man went into another room, and the victim never saw him again. The victim described the man as a black male with a dark complexion and braids, wearing a dark hat and dark clothing.
¶ 5 Peoria police officer Jacob Beck testified that he was alone in his squad car when he responded to a call about a home invasion in the early morning hours of October 2. When the description went out, and another officer stated the he saw a man walking that could have been the male involved, Beck traveled in the same direction and saw a man matching that description in the Super Pantry. Beck saw a black male, with small braids, wearing a black shirt and black hat. He had a red T-shirt on under the black button-up shirt. As Beck walked up to the front door, the defendant looked and saw Beck and took a couple of steps backwards, looked at the rear exit door, and saw another officer at the back door. The defendant did not make any quick movements, nor did reach into his coat or his pockets. Beck motioned for the defendant to come out of the store, which he did. The report from dispatch did not indicate that the victim of the home invasion saw a weapon, and Beck had no other notice that the suspect was known to have a weapon on him. As the defendant exited the store, Beck, who held the door open, grabbed the defendant by the left wrist to conduct a patdown for officer safety reasons. Beck did not remember what he said to the defendant. The defendant tried to pull away, and he tried to take off running.
¶ 6 Sergeant Paul Segroves, also with the Peoria police department, testified that he responded to a call regarding a possible home invasion on the morning of October 2. On his way to the scene, a few blocks from the home, he observed a black male walking southbound, on the river side of the street. Segroves thought it was odd because it was raining out and there were no homes of the river side of the street. He reported that he just passed a male, and gave his description, and then went to the scene. When the victim's description fit the description of the man he saw, Segroves got back in his car to go look for him. Segroves knew that the Super Pantry, about eight blocks away, was the only open business in the area, so he went there, and Beck followed. Segroves went around back, and he saw the defendant walking toward the back of the store until the defendant saw Segroves' car. Segroves testified that Beck motioned the defendant to come out the front door, and Beck grabbed the defendant's arm when he did. The defendant immediately started to twist and attempted to run. They struggled for about 10 feet and fell into the gas pumps. During the struggle, a pistol fell out of the defendant's belt.
¶ 7 The defendant testified that he was walking from his sister's house to the Super Pantry around 4 a.m. on the morning of October 2 to buy something to drink. He was walking southbound, and he remembered seeing the police officer drive past him going north. He testified that he was wearing a black T-shirt with a long-sleeve red shirt underneath, with a black hat with a red Dodgers logo, and he had braids. He continued into the Super Pantry. He noticed about four other people in the Super Pantry; none were dressed like the defendant and none had braids. While in line to check out, he noticed both officers pull up to the Super Pantry. The defendant denied walking toward the back door. He followed Beck out of the store, and he testified that Beck immediately grabbed his right arm and tripped him to the ground. The defendant testified that, after asking him to step outside, Beck did not say anything else to the defendant.
¶ 8 The trial court denied the motion, finding that there were articulable facts that justified the stop and temporary detention. It found that the defendant was walking in a generally nonpedestrian area away from where a home invasion was reported, the defendant matched the description of the home invader, the defendant made furtive movements inside the store, and the defendant attempted to flee. Under those facts, the trial court found that the police officers were acting reasonably when they stopped the defendant and a patdown was justified.
¶ 9 The defendant waived his right to a jury trial and consented to a stipulated bench trial, preserving the issue of the search and seizure for appeal. The defendant was convicted of armed violence and ...