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In re Rafeal E.

Court of Appeals of Illinois, First District, Fifth Division

May 16, 2014

In re RAFEAL E., a Minor;
v.
Rafeal E., a Minor, Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,

As Corrected May 16, 2014.

Appeal from the Circuit Court of Cook County. No. 13 JD 02519. Honorable Stuart F. Lubin, Judge Presiding.

SYLLABUS

Respondent's adjudication of delinquency based on possession of controlled substances was reversed where the trial court erred in denying his motion to quash his arrest and suppress evidence, since the adjudication could not stand without the suppressed evidence and the record showed controlled substances were seized from defendant following a Terry stop that lacked any reasonable, articulable suspicion that defendant was involved in criminal activity or was armed and dangerous.

For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Gabriell Green, Assistant Appellate Defender, Office of the State Appellate Defender, First Judicial District, Chicago, Illinois.

For Appellee: Anita Alvarez, State's Attorney, Alan J. Spellberg, Assistant State's Attorney, Eve Reilly, Assistant State's Attorney, Whitney Bond, Assistant State's Attorney, Cook County State's Attorney's Office, Chicago, IL.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.

OPINION

Page 490

GORDON, J.

[¶1] Minor respondent Rafeal E. was adjudicated delinquent for possession of controlled substances (heroin and cocaine) and sentenced to 18 months' probation. On appeal, respondent contends that the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence, and he requests that the adjudication of delinquency entered on both counts of possession be reversed.

[¶2] BACKGROUND

[¶3] A petition for adjudication of wardship was filed on June 12, 2013, alleging that respondent was delinquent based on his being in possession of less than 14 grams of a substance containing heroin and less than 15 grams of a substance containing cocaine. Respondent filed a motion to quash his arrest and suppress evidence, alleging that he was seized without probable cause, or a reasonable, articulable suspicion of criminal activity, and without a warrant or exigent circumstances negating the need for such. Respondent thus sought suppression of the evidence seized as a result of the illegal arrest and seizure.

[¶4] At the suppression hearing, Chicago police officer Millan testified that on May 25, 2013, he and his partner were in uniform in a marked squad car, patrolling the area of 1139 North Lawndale Avenue, and assigned to " Direct Commission, Operation Impact." Officer Millan testified that he knew the area to be a " high narcotics location" based on the drug-related arrests he had made on that block in the prior two months.

[¶5] Officer Millan further testified that at 10 a.m. that day, he observed respondent standing and talking with four to six other individuals at the mouth of an alley. He acknowledged that when he first observed respondent standing there, respondent was not violating any laws. Defense counsel asked him whether he had an opportunity to approach and speak with respondent, and the officer answered, " Yes." Defense counsel also asked, " And when you spoke with the minor respondent, did you ask him to take his hands out of his

Page 491

pants?" and the officer clarified, " Out of his pockets," then answered, " Yes." After Officer Millan testified that he did not have a warrant to arrest or search respondent, defense counsel asked, " And at the time that the minor raised his hands, did you recover anything from the minor?" and the officer answered, " Yes." Officer Millan testified that he recovered a clear plastic bag with 10 individual ziploc bags with yellow tape from respondent's waistband. He then placed respondent in custody and recovered a green ziploc bag containing 10 individual knotted plastic baggies of suspected crack cocaine from his back pocket. Officer Millan testified that respondent made no statements to him at that time, and he acknowledged that the items recovered from respondent would be used against him by the State. Defense counsel then asked, " Officer, at the time that the minor respondent took his hands out of his pockets that was in response to your order, correct?" and the officer answered, " Yes."

[¶6] On cross-examination by the State, Officer Millan stated that he first observed respondent from a distance of 20 to 25 yards and that respondent looked in his direction and walked away from the group. He then described the manner in which respondent walked away as " like a brisk walk, with his hands in his pockets," and, after observing this, he drove directly parallel to respondent and asked him to stop. After respondent complied with his request, Officer Millan asked respondent to remove his hands from his pockets. When the State asked the officer why he made this request, he answered " for officer safety." The State then asked, " And when he removed his hands, where did he put them?" and the officer answered, " He put them straight up in the air." When the State asked if respondent's shirt lifted up as a result, the officer answered, " Yes, it did." Then, Officer Millan stated that he observed that " the top of [respondent's] pants were sagging down near his--his butt" and a plastic baggie protruding from respondent's waistband. When asked, " And you could see that after he had taken his hands out of his pockets, right?" the officer answered, " Correct." When asked, " Did ...


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