[Copyrighted Material Omitted]
Appeal from the Circuit Court of Stephenson County. No. 09-CF-38. Honorable Michael P. Bald, Judge, Presiding.
Alan D. Goldberg and Joshua M. Bernstein, both of State Appellate Defender's Office, of Chicago, for appellant.
John H. Vogt, State's Attorney, of Freeport (Lawrence M. Bauer and Richard S. London, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.
[¶1] Defendant, Phillip M. Shipp, appeals the trial court's summary dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) in connection with his convictions of possession of cannabis (720 ILCS 550/4(a) (West 2008)), armed violence (720 ILCS 5/33A-2(a) (West 2008)),
unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)), unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2008)), and unlawful use of weapons (720 ILCS 5/24-1(a)(4) (West 2008)). He contends that he stated a sufficient claim that his counsel on direct appeal was ineffective for failing to challenge the denial of his motion to suppress. We agree. Accordingly, we reverse and remand.
[¶2] I. BACKGROUND
[¶3] Defendant was charged after police responded to a report of a fight that possibly included guns. Defendant was found near the scene with a loaded pistol, cocaine, and cannabis. Defendant moved to suppress the physical evidence, and a hearing was held. For the most part, the evidence was undisputed.
[¶4] The evidence showed that, at around 5 a.m. on January 31, 2009, police officers, including Jeff Zalaznik, were dispatched to the area of Iroquois Street and Miami Avenue in Freeport in response to a 911 call about a fight involving weapons, possibly guns. No information was provided describing the people involved in the fight. None of the officers witnessed a fight.
[¶5] Zalaznik arrived at the area less than a minute after the dispatch. He saw two individuals, defendant and Denise Dickens, walking south in the 500 block of Miami Avenue. The record indicates that this was less than a block from the intersection of Miami and Iroquois. Another officer was north, in the 600 block of Miami, talking to an individual. Defendant and Dickens did not appear to be agitated, sweating, or out of breath, and they were not doing anything unusual. Their clothing was not disheveled, and defendant did not have any injuries or marks consistent with a fight. Without leaving his squad car, Zalaznik asked whether they had been involved in, or knew of, any fights. Defendant and Dickens said " no" and continued walking.
[¶6] Zalaznik did not activate his lights, but he got out of his squad car and asked defendant and Dickens to stop. Zalaznik approached them, said that he was investigating a 911 call, and asked for identification. Dickens asked why he needed identification, and defendant said that he was just visiting his grandfather. They attempted to walk away, but Zalaznik told them to stop. Counsel asked Zalaznik whether, during this initial encounter, he told Dickens and defendant whether they could leave. Zalaznik answered, " I did inform them, yes, that they were not free to leave at any point until our investigation was finished." He then repeated: " [W]hen they initially asked me that, you know, why I was stopping them and when I had asked them for identification, then I informed them that they were not free to leave until our investigation was finished." Zalaznik stated that his overall reason for stopping defendant was that, given the time of day, the nature of the call, the area, and the vehicles leaving the area, he suspected that defendant might have been involved in the fight.
[¶7] While Zalaznik was questioning defendant and Dickens, a van pulled up and two people, later identified as David and Diann Adams, got out of it and yelled to Zalaznik that they were the people who had called 911 and that the people he was looking for were north on Miami Avenue. Zalaznik told them to get back in the van. Officer Sanders then arrived and told the Adams couple to remain in their van. Zalaznik knew the Adams couple from prior police calls and indicated that David had a history of mental issues and violence toward police.
[¶8] Zalaznik returned his attention to defendant and Dickens, who repeatedly attempted to walk away. Each time they tried to disengage, Zalaznik told them to stop, and they complied. Zalaznik next observed that defendant had his hands in his jacket pockets, and Zalaznik ordered him to remove them. Defendant complied. Zalaznik testified that defendant was not wearing gloves and he agreed that, given the time of year, it was probably cold outside. He said that officers ask people to remove their hands from pockets in the interests of officer safety; if a person puts his hands in his pockets multiple times, he might have a weapon.
[¶9] Zalaznik again asked defendant and Dickens to provide identification. Defendant stated that he did not have identification on his person but that it was in his truck, which was parked about 20 feet away. Defendant began walking toward the truck, but Zalaznik told him to stop and said that verbal identification would be acceptable. Both provided their names.
[¶10] Zalaznik radioed the names to dispatch to check whether there were any outstanding warrants. He found out later that there were not. By that time, Officers Shippert and Thompson had arrived on the scene. Zalaznik recognized defendant's name, as defendant had been the alleged victim of a shooting about a month earlier. Zalaznik thought that defendant now might have been looking for revenge. Thompson testified, however, that he thought that defendant had shot himself.
[¶11] Shippert saw defendant put his hands in his jacket pockets and told him to remove them. Defendant complied. Zalaznik asked defendant whether the officers could conduct a pat-down for weapons. Defendant became agitated, said that he had not done anything wrong, and refused. Defendant then put his hands into his pockets and Zalaznik and Shippert attempted to grab his arms. Zalaznik " did not get a hand on him," but believed that Shippert got his left hand on defendant's arm. Defendant then fled, with Zalaznik running after him, yelling at him to stop. Defendant slipped on some ice and fell, and the officers caught up to him and handcuffed him. A search uncovered a loaded pistol in defendant's pants pocket. They also found cocaine, cannabis, and $560 cash.
[¶12] Dickens testified that, on January 31, 2009, she had been outside of a party where there were confrontations. She saw defendant standing on Miami Avenue and walked over to him. Defendant told her that he was on his way to his grandfather's house, which was about halfway down the block. Defendant's grandfather was also Dickens' uncle and she decided to go there as well. Zalaznik stopped them and kept asking questions. However, he did not tell them that they could or could not leave.
[¶13] The trial court denied the motion to suppress, finding that it was unnecessary to determine whether the officers acted properly when they initially questioned defendant, stopped him, demanded identification, or sought to pat him down. Instead, the court found that, under section 31-1 of the Criminal Code of 1961 (Code) (720 ILCS 5/31-1 (West 2008)) and People v. Villarreal, 152 Ill.2d 368, 604 N.E.2d 923, 178 Ill.Dec. 400 (1992), defendant resisted or obstructed the performance of a police officer when he fled, making the subsequent search permissible.
[¶14] On March 11, 2010, the parties agreed to a stipulated bench trial, and the State agreed to dismiss an unrelated charge. The parties entered a written stipulation providing a factual basis for the charges. The stipulation also provided that the trial court would continue to rule as it did on ...