Court of Appeals of Illinois, First District, Sixth Division
Rehearing denied February 1, 2017
from the Circuit Court of Cook County, No. 16-JD-855; the
Hon. Patricia Mendoza, Judge, presiding.
Michael J. Pelletier and Gavin J. Dow, of State Appellate
Defender's Office, of Chicago, for appellant.
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg and Margaret M. Smith, Assistant State's
Attorneys, of counsel), for the People.
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 that 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 and Throop Streets (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 1½ to 2 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, ...