Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 11 CR 2825. Honorables Evelyn B. Clay and James B. Linn, Judges Presiding.
For Plaintiff-Appellee: Anita Alvarez, Cook County State's Attorney, Chicago, IL (Alan J. Spellberg, Carol L. Gaines, and Leslie Billings, Assistant State's Attorney, of Counsel).
For Defendant-Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender of Cook County, Chicago, IL (Joshua M. Bernstein, Assistant Appellate Defender).
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant was convicted of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6 (West 2010)) and unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2010)). The trial court subsequently sentenced defendant to concurrent terms of nine years in the Illinois Department of Corrections.
[¶2] Defendant appeals, arguing that: (1) the trial court erred in denying his motion to quash his arrest and suppress evidence because defendant's " furtive movements" did not support a reasonable inference that he was armed and dangerous; (2) defendant's convictions for AUUW and UUWF violate the one-act, one-crime rule; (3) defendant's conviction for UUWF violates the second amendment (U.S. Const., amend. II); (4) defendant's sentence for AUUW violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11); and (5) the mittimus should be corrected to reflect 450 days of presentence credit and that defendant was found guilty of counts I and V.
[¶3] Following a traffic stop in February 2011, a firearm and ammunition were found in defendant's vehicle. Defendant was arrested and subsequently indicted on multiple counts of AUUW and UUWF. Prior to trial, defendant filed a motion to quash his arrest and suppress evidence. In his motion, defendant argued that his conduct prior to his arrest " would not reasonably be interpreted by the arresting officers as constituting probable cause that [defendant] had committed or was about to commit a crime."
[¶4] The trial court conducted a hearing on defendant's motion in July 2011. At the hearing, Baretta Thomas testified
that he was in the passenger seat of defendant's car at approximately 1:30 a.m. on February 5, 2011. Defendant was driving Thomas home. Thomas stated that the roads were slippery due to recent snowfall and defendant " slid" through the stop sign at 73rd Street and University Avenue. Thomas said that defendant pulled over immediately after the police activated their lights. Two officers approached the vehicle and one asked defendant for his driver's license and insurance. Thomas testified that the officers then removed Thomas and defendant from the car. The men were handcuffed together. The officers then searched the car. Thomas stated that defendant was calm and cooperative with the police officers. On cross-examination, Thomas admitted he was asleep during the incident and did not know if defendant stopped at the stop sign. Thomas stated on redirect that he was awake when the police turned on their lights.
[¶5] Officer Perez testified for the State. He stated that on February 5, 2011, he was on routine patrol with a partner in uniform in a marked squad car. He was the driver and Officer Hagen was in the passenger seat. Officer Perez was driving westbound on 73rd when he approached a four-way stop with University. He observed a Buick LeSabre make a left turn from University onto 73rd without stopping at the posted stop sign. Officer Perez stated that he could see the rear brake lights on the car but did not see the lights on. He did not see " any pause at that intersection." At that point, Officer Perez " followed the vehicle for a couple of blocks and curbed it."
[¶6] After the vehicle stopped, Officer Perez approached on the driver's side. He identified defendant as the driver. As he approached, he " observed [defendant] making a furtive movement towards the rear of the passenger seat." He stated that he saw defendant " reach with his right hand towards the rear of the front passenger seat." Officer Perez stated there were streetlights in the area and the headlights of his vehicle and a spotlight were directed at the stopped vehicle.
[¶7] Officer Perez asked defendant to step out of the vehicle and he detained him. Officer Perez testified that there was also a person in front passenger seat. He stated that the passenger was asleep and his partner woke the passenger by banging on the door. Both men were asked to step behind the car and Officer Perez called for additional squad car assistance. He then returned to the vehicle and searched in the area where he observed defendant reach and he discovered a .25-caliber handgun with a purple Crown Royal bag containing live ammunition.
[¶8] On cross-examination, defense counsel asked Officer Perez when he " put [his] lights on after the stop sign," and Officer Perez answered, " It wasn't until I -- a couple of blocks before I curbed the vehicle." Defense counsel also asked, " When you curbed the vehicle, [defendant] pulled over immediately, is that fair to say?" Officer Perez responded, " Yeah." Officer Perez stated that when he approached the vehicle, he did not see a firearm in defendant's hand and that he never saw a firearm in defendant's hand. He said he was approximately three feet away when he observed defendant reaching for the back of the front passenger seat, but he had a clear view through the window. He estimated that defendant's movements lasted three to four seconds.
[¶9] Officer Perez described defendant as quiet and he followed the officer's direction and was not argumentative. When asked why he asked defendant step out of the car, Officer Perez ...