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In re Manuel M.

Court of Appeals of Illinois, First District, Sixth Division

February 10, 2017

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

          Rehearing denied February 1, 2017

         Appeal 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.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.

          Panel 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 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.[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, ...


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