Appeal from Circuit Court of Vermilion County. No. 12CF265. Honorable Nancy S. Fahey, Judge Presiding.
Michael J. Pelletier, Jacqueline L. Bullard, and Ryan R. Wilson (argued), all of State Appellate Defender's Office, of Springfield, for appellant.
Randall Brinegar, State's Attorney, of Danville (Patrick Delfino, David J. Robinson, and David E. Mannchen (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Appleton concurred in the judgment and opinion.
[¶1] In June 2012, the State charged defendant, Trevon M. Lake, in part, with (1) aggravated use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010)) and (2) defacing identification marks of a firearm (720 ILCS 5/24-5(b) (West 2010)). Defendant later filed a motion to suppress the gun police seized, arguing that the police search of him was unreasonable under the fourth amendment to the United States Constitution. U.S. Const., amend. IV.
[¶2] Following a November 2012 hearing, the trial court denied defendant's motion to suppress. At a stipulated bench trial conducted later that month, the court found defendant guilty of both charges. In December 2012, the court sentenced defendant to time served (187 days in jail) and probation for 24 months.
[¶3] Defendant appeals, arguing that (1) the trial court erred by denying his motion to suppress evidence and (2) his conviction for aggravated use of a weapon under section 24-1.6(a)(1), (a)(3)(I) of the Criminal Code of 1961 is unconstitutional. We disagree and affirm.
[¶4] I. BACKGROUND
[¶5] A. The State's Charges and Defendant's Motion To Suppress Evidence
[¶6] In June 2012, a police officer searched defendant--who was 17 years old--and discovered a gun with a defaced serial number. The State later charged defendant with (1) two counts of aggravated use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(1), (a)(3)(I) (West 2010)) (counts I and II, respectively) and (2) defacing identification marks of a firearm (720 ILCS 5/24-5(b) (West 2010)) (count III).
[¶7] In September 2012, defendant filed a " motion to quash arrest and suppress evidence." See People v. Ramirez, 2013 IL App. (4th) 121153, ¶ 57, 996 N.E.2d 1227, 375 Ill.Dec. 171 (saying defendants should stop filing motions to " quash arrest" be cause
they make no sense and add nothing to achieving the intended goal of suppressing evidence). Defendant sought to exclude the gun and any associated evidence, arguing that the search of his person was unreasonable under the fourth amendment because the police lacked sufficient justification to stop and question him and then seize the gun.
[¶8] B. The Hearing on Defendant's Motion To Suppress
[¶9] At a November 2012 hearing on defendant's motion to suppress, defendant presented the following evidence.
[¶10] Sergeant Terry McCord of the Danville police department testified that shortly after midnight on June 15, 2012, he responded to a call reporting gunshots at the Fair Oaks public housing complex, which is managed by the Danville Housing Authority. Although McCord initially patrolled the property in his marked squad car, he left his vehicle, traveled on foot, and later observed three men in front of a building. One of the three men--later identified as defendant--caught McCord's attention because he walked back and forth three times, looking in various directions as he did so, which gave McCord the impression that the man was a " lookout." McCord, who did not know defendant at the time he observed the three individuals, characterized the shifting movements as " suspicious," adding that " [w]hat I witnessed from the subject was not a normal *** reaction in my 15 years' experience."
[¶11] The " lookout" (defendant) eventually walked " down the street," away from the two men as he listened to loud music playing from an electronic device. Unbeknownst to defendant, McCord followed, closing the 20-foot distance between them. McCord then tapped defendant's shoulder from behind, which startled and scared him. When defendant turned his head and saw McCord behind him, McCord moved in front of defendant, identified himself, and asked what defendant was doing. Defendant responded that he was walking to his apartment, which was a few doors away, and he wanted to go home. McCord then asked defendant to identify himself, and defendant responded, " Trevon Lake." At that moment, McCord recalled information provided by another officer not more than six months earlier that Trevon Lake was known to carry a gun. McCord looked down and observed a four-inch bulge at defendant's waist area. McCord then conducted a " pat down" search of that bulge and seized the gun at issue.
[¶12] McCord testified that pursuant to a written agreement between the Danville Housing Authority and the Danville police department, police patrolling the apartment complex are supposed to determine that people on housing authority property either reside there or are permitted to be on the premises. McCord explained the following standard procedure police use under that agreement:
" [Police] [u]sually stop [people], *** ask for their name, [and] ask their purpose [for] being on the property. We can check to see if they actually live there because [police dispatchers have] a residents' list for Fair Oaks. If they're not on the bar list and they do live there, obviously they're allowed to go *** wherever they're going. If they're not on the bar list and they don't live there, they're asked to leave the property or go wherever they're supposed to be visiting or whatever they're supposed to be doing."
McCord testified that police dispatchers have access to a listing of over 600 people who are barred from the Fair Oaks property. If police question an individual who is on the barred list, that person is asked to leave the premises. McCord stated that
he stopped defendant to ask (1) why he was on the property and (2) his name to determine his status in accordance with the aforementioned procedure.
[¶13] In addition to ensuring his own safety, McCord stated that he searched defendant for the following reasons:
" [Defendant] was patted down because of the totality of the circumstances; based on the area that I was in, the high-crime/ high-drug area[; ] based on [defendant's] action and what I believed he could be possibly doing[; ] based on the fact that I asked [defendant for] his name *** and I had information *** that [defendant] was known to carry guns. I then looked down [at] his waist area and at that point was able to see what I believed to be a bulge *** in his waist."
[¶14] Defendant's testimony regarding his June 15, 2012, encounter with McCord was consistent with McCord's account. Defendant added that he did not feel free to leave ...