Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 11 CR 3843. Honorable Maura Slattery-Boyle, Judge Presiding.
Defendant's conviction for two counts of unlawful possession of a controlled substance was reversed and his sentence to an extended term was vacated on the ground that the trial court erred in denying defendant's motion to suppress where the arresting officers lacked a reasonable suspicion under Terry to stop and frisk defendant, notwithstanding testimony that a woman approached the officers and gave them a description of a man she said was selling narcotics at a nearby intersection, since there was no testimony that the officers saw any money or drugs changing hands or that defendant had a large amount of drugs on his person, the frisk of defendant was based only on the suspicion that he was involved in a drug transaction and that " drugs and guns go together," defendant did not make any furtive movements, and the confrontation took place in daylight on a public street.
For Appellant: Michael J. Pelletier, Alan D. Goldberg, Kate E. Schwartz, of counsel, Office of the State Appellate Defender, Chicago, IL.
For Appellee: Anita Alvarez, Alan J. Spellberg, Anthony O'Brien, Brandon Nemec, of counsel, Cook County State's Attorney, Chicago, IL.
JUSTICE MASON delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Lamont Boswell was convicted of two counts of possession of a controlled substance. Due to his criminal history, he was sentenced to an extended term of five years in prison. On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence because the police lacked reasonable suspicion to stop and frisk him and that, therefore, his conviction must be reversed. In the alternative, defendant contends that he must receive a new trial because he represented himself without receiving any of the admonishments required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).
[¶2] Because we find that the protective pat-down of defendant was improper, we reverse the denial of defendant's motion to suppress and, in turn, reverse his conviction.
[¶4] Defendant was arrested in Chicago on February 11, 2011. After the State charged him with two counts of possession of a controlled substance (heroin and codeine), defendant filed a motion to suppress evidence. In the motion, defendant argued that the police discovered physical evidence during the course of an unlawful search of his person, and thus, the evidence should be suppressed.
[¶5] At the hearing on the motion, defendant called one of the arresting officers, Chicago police officer Daniel Prskalo. Officer Prskalo testified that he had been a police officer for 15 years and had witnessed over 100 hand-to-hand narcotics transactions. Officer Prskalo testified that about 2 p.m. on the day in question, he and his partner, Officer Daniel Gomez, were outside their unmarked vehicle when they were approached by a woman they did not know. The woman told the officers that a man was selling narcotics at Cottage Avenue and 43rd Street and that she had purchased narcotics for her own use. She did not tell the officers what kind of narcotics she had purchased or when she had purchased them. The woman gave a description of the seller that included his race, height, weight, approximate ...