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In re Manuel M.

Court of Appeals of Illinois, First District, Sixth Division

January 6, 2017

In re MANUEL M., a Minor, Minor-Appellant,
v.
Manuel M., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal 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.

          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.[1]¶ 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 police station.

         ¶ 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 ...


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