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In re Jarrell C.

Court of Appeals of Illinois, First District, First Division

December 11, 2017

In re JARRELL C., a Minor,
v.
Jarrell C., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County. No. 16 JD 1653 Honorable William Gamboney Judge Presiding

          JUSTICE SIMON delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.

          OPINION

          SIMON JUSTICE.

         ¶ 1 Minor respondent Jarrell C. was adjudicated delinquent for committing the offenses of aggravated unlawful use of a weapon and possession of a controlled substance. On appeal respondent argues that the court erred in denying his pretrial motion to suppress the evidence obtained following his illegal seizure by the police. For the following reasons, we reverse the judgment of the circuit court.

         ¶ 2 BACKGROUND

         ¶ 3 At the hearing on respondent's motion to suppress evidence, respondent testified that, on July 22, 2016, he was 18 years old. On that date, at about 8:45 p.m., he was trying to buy a bus card at a currency exchange located at 4400 West Armitage Avenue in Chicago. Respondent referred in his testimony to a video recording taken of him inside the currency exchange. The video was introduced into evidence as minor's exhibit No. 1. Respondent indentified himself in the video and testified he was waiting in line to purchase a bus card. Less than a minute and a half later, a police officer entered the currency exchange.

         ¶ 4 Respondent indicated that the police officer motioned with his finger for respondent to "come here." Respondent replied "Who me?" The officer said "Yes, you." Respondent stated that the officer had his hand on his gun. Respondent walked over to the officer at that point. Two other officers entered the currency exchange. One of officers told him to lift up his shirt. Respondent replied "What's the problem, sir? [or What's the probable cause, sir?]. I didn't do anything." The officer told respondent to lift up his shirt "before we go over there and do it for you." Respondent lifted up his shirt while turning around. Next, the officers told him to put his hands on the railing so they could search him. One officer unholstered his gun. Another officer searched and recovered a gun from respondent's left side. Respondent was then taken outside to a police car. The police recovered some drugs from his person.

         ¶ 5 Respondent testified that the officers never indicated that they had an arrest or search warrant for respondent when they called him over at the currency exchange. Respondent stated he was never informed about an arrest warrant and that he was not aware of such a warrant. He stated his hand was never in his waistband.

         ¶ 6 Officer Brian Ustaszewski testified that on July 22, 2016, at about 8:45 p.m., he was working with Commander Anthony Escamilla and Captain David Harris. While driving in an unmarked car, Officer Ustaszewski was showing the commander and the captain areas of concern in a high-crime area so they could determine where to best deploy resources. He observed respondent standing on Kenneth Avenue in front of a building that is a known Latin Eagles hangout, holding his waistband or the material of his shorts between the waist and the crotch area like he was "holding something" with his right hand. Ustaszewski testified that, in his opinion as an intelligence officer familiar with different areas where street gangs hang out, when people hold their waistbands, they are concealing objects, most likely guns.

         ¶ 7 Officer Ustaszewski observed respondent for a few minutes and saw him looking in the direction of the officers and then walking inside the currency exchange. The commander and the captain followed respondent inside the currency exchange. Ustaszewski stated that, when he later entered the currency exchange, respondent was talking to the commander "with his hands holding his waistband." The officer asked respondent to lift up the front of his T-shirt, but respondent only lifted up the back of the shirt slightly and turned around. Ustaszewski could not see the front of respondent. Respondent then turned around and pulled out his shirt, and the officer saw that the shirt "buckled up on the front." Ustaszewski stated that at that point, he knew that respondent had a gun. Ustaszewski testified that he believed respondent was behaving similarly to other gun offenders he had previously arrested based on "the nervousness, the holding of the front waistband, reluct[ance] to lift his shirt up."

         ¶ 8 Ustaszewski had respondent place his hands on the railing while Commander Escamilla recovered a handgun from respondent's front waistband. On cross-examination, Ustaszewski testified that he saw respondent holding his pants "between the groin area and the waistband" and that it appeared that he was holding something. The officer indicated that he does not always find suspicious activity seeing a young male holding his hand in front of his crotch area like respondent was.

         ¶ 9 Commander Escamilla testified that, while on patrol with Officer Ustaszewski and Captain Harris on July 22, 2016, at about 8:45 p.m., he saw respondent in front of the currency exchange with "his hand on his waistband." He testified that respondent "did not look like he was holding up his pants." He followed respondent inside the currency exchange. Commander Escamilla asked respondent to approach him, and respondent placed his hands up in the air. Respondent continued to walk forward and Escamilla observed that respondent's hands were "moving around a lot." Escamilla testified that Ustaszewski directed respondent to walk closer and respondent complied. Ustaszewski asked respondent to lift up his shirt a couple of times, but he only lifted the side portion of his shirt.

         ¶ 10 Escamilla stated that Officer Ustaszewski asked respondent to put his hands on the railing. When respondent complied, Escamilla reached in front of respondent near his waistband and recovered a handgun. Escamilla then placed respondent under arrest. On cross-examination, Commander Escamilla testified that "in many, but not all circumstances" his experience revealed that a person had a gun when holding his hand as he saw respondent holding his.

         ¶ 11 The State admitted into evidence a certified copy of a previous juvenile arrest warrant for respondent issued by the circuit court on June 6, 2016, pursuant to an unrelated case. There was no evidence presented that any of the officers were aware of the arrest warrant ...


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