Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County No. 16 JD 855 Honorable
Patricia Mendoza, Judge, Presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion. Justices Cunningham and Rochford
concurred in the judgment and opinion.
HOFFMAN PRESIDING JUSTICE
1 The respondent, Manuel M., appeals from the trial
court's judgment adjudicating him a delinquent minor by
reason of his commission of two counts of aggravated unlawful
use of a weapon (AUUW) (720 ILCS 5/24-1.6(a) (West 2014)) and
one count of unlawful possession of a firearm (UPF) (720 ILCS
5/24-3.1(a)(1) (West Supp. 2015)) and the resulting sentence
of 18 months' probation and 30 days' commitment to
the Juvenile Temporary Detention Center with the order of
commitment stayed. For the reasons which follow, we reverse
the respondent's delinquency adjudication and sentence
and remand the matter for a new trial.
2 The respondent was arrested for reckless conduct after he
was seen flashing gang signs at passing cars near Throop Park
in Chicago. When the respondent was searched following his
arrest, a pistol was found in his pants.
3 The State alleged in a petition for adjudication of
wardship that the 16-year-old respondent committed two counts
of AUUW and one count of UPF. The first AUUW count charged
that the respondent knowingly carried a firearm when he was
not on his own land, home, or fixed place of business and did
not have a valid Firearm Owner's Identification (FOID)
card. The second AUUW count alleged that the respondent,
being under age 21 and not engaged in lawful activities under
the Wildlife Code (520 ILCS 5/1.1 et seq. (West
2014)), carried a firearm on his person. The UPF count
alleged that the respondent, while under age 18, knowingly
possessed a firearm that could be concealed upon his person.
4 Prior to trial, the respondent filed a motion to quash his
arrest and suppress evidence of the firearm recovered
following that arrest. The following evidence was adduced at
the hearing on the respondent's motion.
5 The respondent testified that, on April 11, 2016, at
approximately 7:15 p.m., he was sitting with two other
individuals in a park at 18th Street and Throop (Throop Park)
when a police officer approached him, searched his person,
and recovered a pistol from his pants. The respondent denied
that he had displayed gang signs at passing cars.
6 The State called Officer Kush, who testified that, on the
evening of April 11, 2016, he was assigned to observe Throop
Park due to reports of gunfire on recent nights. He stated
that he went to a location one and one-half to two blocks
from the park; and using binoculars, observed the respondent
and two other individuals near the park entrance flashing
gang signs at passing vehicles, causing the vehicles to
swerve toward oncoming traffic or parked cars. According to
Officer Kush, the group was endangering drivers and
pedestrians. After observing the respondent and his
companions for 15 to 20 minutes, Officer Kush drove to the
park with other officers. Officer Kush testified that, upon
arriving at the park, he arrested the respondent for reckless
conduct, patted him down, and recovered a pistol from his
pants.¶ 7 The trial court denied the
defendant's motion to quash arrest and suppress evidence,
finding that Officer Kush testified credibly and had
discovered the pistol on the respondent's person as the
result of a search incident to a legal arrest.
8 The case proceeded to trial. Officer Kush testified
consistently with his testimony at the suppression hearing,
adding that he recovered the firearm from the respondent who
was on "park property, " and not engaged in
activities under the Wildlife Code. Officer Kush also
testified that the respondent was unable to present a valid
FOID card. According to Officer Kush, he learned that the
respondent was under age 18 when he processed him at the
9 On cross-examination, defense counsel asked Officer Kush to
disclose the exact location from which he observed the
respondent and his two companions flashing gang signs at
passing vehicles. Officer Kush stated that disclosing the
location would endanger his life and the lives of every
officer that uses the location. The prosecutor objected to
defense counsel's question on the grounds that revealing
the location would endanger officer safety. Following
arguments on the objection, the trial court elected to
conduct an in camera examination of Officer Kush.
The transcript of that examination contained within the
record reflects that the respondent and his attorney were
excluded from the in camera examination of Officer
Kush, but the assistant State's attorneys were present.
After the trial judge examined the officer and ascertained
the exact location from which he conducted his surveillance
of the park, an assistant State's attorney was permitted
to ask the officer questions. Following the examination of
Officer Kush, the assistant State's attorney presented
argument to the trial judge in further support of his
objection to disclosure of the surveillance location.
10 When the trial resumed, defense counsel presented
additional arguments addressed to the State's objection.
However, there is no indication in the record that defense
counsel was ever advised of the arguments made by the State
during the in camera examination of Officer Kush.
Following the arguments of counsel, and over defense
counsel's objection, the trial judge ruled that she would
not compel Officer Kush to disclose his "exact
location" from which he conducted his surveillance of
the park but would permit the defense to inquire regarding
"distance, lighting, [and] everything else."
11 Cross-examination resumed, and Officer Kush testified that
he observed the respondent from an outdoors location,
elevated 10 to 15 feet, one and one-half to two blocks north
of the park. He stated that several buildings were situated
between the park and the observation point, but denied that
his vision was obstructed. Officer Kush admitted that the
police reports of the incident did not mention the fact that
he conducted surveillance prior to arresting the respondent.
12 After Officer Kush testified, the State rested. The
respondent then moved for a directed finding which was
denied. Thereafter, the ...