Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County, No. 16-JD-1653; the
Hon. William Gamboney, Judge, presiding.
Campanelli, Public Defender, of Chicago (Lindsay Huge, of
counsel), for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg and Marci Jacobs, Assistant State's Attorneys,
of counsel), for the People.
JUSTICE SIMON delivered the judgment of the court, with
opinion. Presiding Justice Pierce and Justice Harris
concurred in the judgment and opinion.
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.
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
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 ...