Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 10 CR 12636. Honorable William H. Hooks, Judge Presiding.
The trial court erred in denying defendant's motion to suppress the cocaine discovered in his pants during a Terry stop and frisk, where the arresting officer's testimony that he saw defendant " stuff an unknown object into his crotch area," that he recognized defendant and knew he had been arrested for unlawful use of a weapon and that defendant's " movement" as he walked away was indicative of " someone that could be armed" was insufficient to give the officer a reasonable suspicion to believe defendant was committing the crime of unlawful use of a weapon, especially when the officer only saw defendant place his hand in his pants and never saw a weapon or contraband; therefore, defendant's conviction for unlawful possession of a controlled substance was reversed.
FOR PLAINTIFFS-APPELLEE: Carlos Vera, Michelle Katz, Office of the State's Attorney, Chicago, IL.
FOR DEFENDANT-APPELLANT: Patrick Morales-Doyle, Office of the State Appellate Defender, Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
HYMAN, PRESIDING JUSTICE.
[¶1] Defendant appeals the trial court's denial of his motion to suppress evidence that was seized during a Terry stop and frisk. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He argues that the arresting officer did not have sufficient reasonable suspicion of criminal activity. While responding to an unrelated situation, a police officer saw defendant, sitting out in front of a building, " stuff an unknown object into his crotch area" and begin to walk away. The officer, who recognized defendant and knew he had an arrest for unlawful use of a weapon, stopped and searched defendant on the ground that his " movement" was indicative of " someone that could be armed." Although defendant turned out to be unarmed, the officer seized a plastic bag containing 25 smaller plastic bags of a substance that ultimately tested positive for cocaine.
[¶2] After a bench trial, the trial court found defendant guilty of the possession of a controlled substance with the intent to deliver and sentenced him to six years' incarceration on his criminal record as a Class X offender. We reverse the conviction and sentence on the ground that the stop was not supported with sufficient reasonable suspicion that a crime had been, or was about to be, committed.
[¶4] The facts are largely undisputed. On June 14, 2010, Officer Robert Vahl, an 11-year veteran of the Chicago Police Department, was on a routine patrol in an unmarked police vehicle. Vahl saw two individuals, who are not parties to this appeal, engage in activity that he believed was " about to be a narcotics transaction." Vahl did not see defendant Henry Sims
with either individual at any time. Vahl and his partner stopped to investigate. Vahl followed one suspect through a gangway and his partner followed the other in a different direction. As Vahl, who wore civilian clothing with a vest and star around his neck, left the gangway, he saw Sims sitting in front of what appeared to be an abandoned building. Vahl saw Sims " stuff an unknown object into his crotch area" and begin to walk away. Vahl, recognizing Sims and recalling that he had been arrested for unlawful use of a weapon, stopped Sims, walked with him a few feet down the gangway, and conducted a brief search. According to Vahl, he conducted the search because Sims's " movement was consistent with someone that could be armed," but admitted that it is not illegal for Sims to stuff his hand down his pants. Vahl began his search by placing his open hand on Sims's crotch, where he felt what he ...