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People v. Thomas

Court of Appeals of Illinois, First District, Fifth Division

December 23, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
LAMONT THOMAS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 11 CR 18062 Honorable Thomas M. Davy, Judge Presiding.

          Michael J. Pelletier, State Appellate Defender, Chicago, Patricia Mysza, Deputy Defender OF Benjamin A. Wolowski.

          Kimberly M. Foxx, Cook County State's Attorney, Alan Spellberg, John E. Nowak and Jessica R. Ball.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.

          OPINION

          LAMPKIN JUSTICE.

         ¶ 1 Following a bench trial, defendant Lamont Thomas was convicted of unlawful use or possession of a weapon by a felon and sentenced to five years' imprisonment. On appeal, defendant contends that the trial court erred in denying his motion to quash arrest and suppress evidence because police lacked reasonable suspicion to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). We reverse.

         ¶ 2 BACKGROUND

         ¶ 3 Defendant was arrested on January 8, 2012, and charged by indictment with four counts of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use or possession of a weapon (UUW) based on his September 15, 2009, possession of a handgun in public. The State charged defendant with AUUW for possessing a gun: outside of his home and the gun was uncased, loaded and immediately accessible at the time of the offense (count 1) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)); outside of his home without having been issued a valid Firearm Owner's Identification Card (FOID card) (count 2) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2008)); within the city of Chicago (count 3) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2008)) and; within the city of Chicago without having been issued a valid FOID card (count 4) (720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2008)). Defendant was also charged with two counts of UUW for possessing a gun (count 5) and ammunition (count 6) after having been convicted of a felony (720 ILCS 5/24-1.1(a) (West 2008)).

         ¶ 4 Prior to trial, defendant filed a motion to quash arrest and suppress evidence alleging that his arrest was made in violation of the fourth and fourteenth amendments of the United States Constitution. See U.S. Const., amends. IV, XIV. At the hearing on defendant's motion, the State presented the testimony of the two police officers involved in defendant's Terry stop. The officers' accounts of the events leading to the stop, including their testimony regarding the contents of a tip they received from an unidentified citizen that prompted them to stop defendant, were substantially consistent and found to be credible by the trial court. Defendant does not contest the substance of the officers' testimony on appeal. The following account of the Terry stop, and the events leading to it, was presented at the hearing on defendant's motion to quash arrest and suppress evidence.

         ¶ 5 Chicago police officer Patrick Kinney testified that about 10 p.m. on September 15, 2009, he and his partner Officer Richard Antonsen, were on patrol in plain clothes and an unmarked police vehicle within the Fourth District when they were flagged down by a man with whom neither officer was familiar. Officer Kinney testified that he did not ascertain the man's name and that the man indicated to the officers that he wished to remain anonymous. Officer Kinney described the man as a "male black approximately in his 30s." Officer Kinney testified the man did not smell of alcohol and his demeanor was "normal." During their approximately 30-second conversation, the man told Officer Kinney that "a male black wearing a red shirt had just placed a black handgun into a backpack and was *** walking eastbound on 80th Place from Exchange [Avenue]." Officer Kinney did not ask the man how he knew about the person with the gun.

         ¶ 6 After speaking with the unidentified man, Officer Kinney, "within seconds, " relocated to 80th Place which was approximately a block and a half away. At the 2900 block of East 80th Place, Officer Kinney observed four or five people in the area, including defendant, who was wearing a red shirt, holding a backpack to the right side of his body and walking eastbound on the sidewalk. Officers Kinney and Antonsen approached defendant for a field interview. As they did so, Officer Kinney announced his office and defendant walked up the stairs leading to the front porch of a residence. Officer Kinney followed defendant to the porch and attempted to do a protective pat down of defendant's person. Officer Kinney testified that he wanted to do a protective pat down of defendant because of the information that was relayed to him that defendant was in possession of a weapon.

         ¶ 7 As Officer Kinney reached for defendant's waistband, defendant dropped the backpack he was holding onto the porch. Officer Kinney testified that he had not started to pat down defendant, before defendant dropped the backpack. The officer acknowledged that he prepared an arrest report, detailing the events that happened on the porch, and admitted that in the report he stated that he conducted a pat down of defendant's person and that defendant dropped the backpack while he was conducting the pat down. Officer Kinney testified that during the pat down he intended to search defendant's person and not the backpack.

         ¶ 8 Officer Kinney stated that when the backpack hit the porch it made a "thud" sound that was consistent with a steel object, such as a gun, inside the backpack. Officer Kinney also stated that the thud was a sound he has heard before based on "people dropping guns" in his presence. As the officer picked up the backpack, defendant grabbed it and they started to struggle over it. Officer Kinney gained possession of the backpack and threw it to his partner, who was standing below the porch near the sidewalk. As Officer Kinney attempted to detain defendant, he heard Officer Antonsen say "gun."

         ¶ 9 Officer Antonsen testified to substantially the same sequence of events as Officer Kinney. Officer Antonsen added that he observed defendant walking eastbound on 80th Place within minutes, "if not sooner, " of speaking with the unidentified man. After Officer Kinney announced his office to defendant, the officer told defendant he was going to search him. Officer Kinney did not say anything to defendant between announcing his office and informing defendant that he was going to search him. Officer Antonsen stated that the porch defendant was standing on was made of concrete and that it was a "landing" in front of a door with enough space for three people to stand. Defendant dropped the backpack as Officer Kinney approached him. When defendant did so, Officer Antonsen heard a "metal sound" like "something hard hitting the ground." Officer Antonsen stated that he was familiar with guns, had recovered hundreds of guns, was on "the specialized unit for guns, " and that the sound he heard when defendant dropped the backpack was consistent with a gun being inside the backpack. ...


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