Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 15 CR 15164
Honorable Vincent M. Gaughan, Judge, presiding.
E. Chadd, Patricia Mysza, and Rebecca Cohen, of State
Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg, Douglas P. Harvath and Ashlee Cuza, Assistant
State's Attorneys, of counsel), for the People.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Lavin concurred in the judgment and
opinion. Justice Hyman dissented, with opinion.
1 Following a bench trial, defendant, Jamal Johnson, was
convicted of one count of aggravated unlawful use of a weapon
and sentenced to 13 months' imprisonment. On appeal, he
argues that (1) the trial court erred in denying his motion
to quash arrest and suppress evidence because police officers
conducted an unreasonable stop and search in violation of
Terry v. Ohio, 392 U.S. 1 (1968), (2) his right of
confrontation was violated when the State used a certified
document to show he did not have a Firearm Owner's
Identification (FOID) card, and (3) his fines and fees order
failed to offset certain charges with presentence credit. We
affirm and remand the fines and fees issues to the trial
court pursuant to Illinois Supreme Court Rule 472 (eff. Mar.
2 Johnson was charged by indictment with eight counts of
aggravated unlawful use of a weapon arising from an incident
in Chicago on September 1, 2015. The State nol-prossed all
counts except one, which alleged aggravated unlawful use of a
weapon predicated on Johnson's failure to possess a FOID
card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2014)). Before
trial, Johnson filed a motion to quash arrest and suppress
evidence, arguing that his arrest was an unreasonable seizure
in violation of the fourth amendment of the United States
Constitution (U.S. Const., amend. IV) and that the evidence
discovered as a result of his arrest and detention should be
suppressed. The trial court heard Johnson's motion
simultaneously with the trial.
3 On September 1, 2015, at about 12:55 a.m., Chicago police
officer Richard Salvador was working with three other
officers in an unmarked vehicle in "an area known for
high narcotic and gang activity." As they drove
eastbound down an alley north of 69th Street between Paulina
Street and Hermitage Avenue, Salvador observed Johnson
standing in the middle of the alley. Johnson turned toward
the officers, saw them, and then "grabbed onto the front
of his waistband and continued walking briskly eastbound as
if to avoid" them. According to Salvador, this gesture
is common "for people who are trying to hold onto and
conceal a weapon." The officers drove further eastbound
"in an attempt to perform a [street] stop on the
defendant" with another squad car "exactly
behind" them. Once the officers exited their vehicles,
Johnson turned and ran westbound toward the squad car. The
officers chased him, and he held "onto his waistband to
secure an object" and jumped onto the squad's hood.
After the officers "observed [defendant] standing on the
hood of the squad car with no way to make good his
escape," Salvador "conducted a protective
pat-down." In the front portion of Johnson's
waistband, Salvador felt a "large hard object resembling
a firearm," and he recovered a loaded semiautomatic
handgun. An officer delivered Miranda warnings, and
Johnson said, "I carry [the gun] for protection because
I've gotten shot before." The officers transported
him to a police station, and Salvador inventoried the gun.
Salvador did not memorialize Johnson's statement.
4 The State entered into evidence an Illinois State Police
certification, which stated:
"Based on the following name and date of birth
information provided by the Cook County State's
Attorney's Office, I, Executive I Tracey Schultz,
Firearms Service Bureau (FSB), Illinois State Police, do
hereby certify, after a careful search of the FSB files, the
information below to be true and accurate for Jamal D.
Johnson whose date of birth is August 5, 1995, has never been
issued a FOID or CCL Card as of October 7, 2015."
Defense counsel did not object to admission of the
5 The State rested, and the trial court denied Johnson's
motion for directed finding. Johnson rested without
presenting any evidence.
6 In support of Johnson's motion to quash arrest and
suppress evidence, defense counsel argued that the police
officers did not have a sufficient basis to subject Johnson
to a Terry stop and pat down since "all he was
doing was standing in an alley and touching his
waistband." She further asserted that the fact that
Johnson ran away was not a sufficient basis to conduct a
Terry stop. The assistant state's attorney
argued that Johnson was not detained until after he jumped
onto the squad car. She further noted that Johnson was seen
in a "high crime area," and that he "grabbed
his waistband, looked in the officers' direction and took
off running trying to make good his escape over another
Chicago police vehicle." According to the assistant
state's attorney, "[a]t that point, the officer
certainly had reasonable articulable suspicion to stop the
7 Before ruling on Johnson's motion, the court heard
closing arguments for the trial. Defense counsel argued that
the State failed to prove Johnson guilty beyond a reasonable
doubt because it presented the testimony of only one officer,
who did not memorialize Johnson's statement. Defense
counsel neither mentioned the Illinois State Police
certification nor raised whether the State proved that
Johnson lacked a valid FOID card. The State responded that
Salvador "testified clearly and credibly" and
"there was no impeachment of his testimony." Based
on Salvador's testimony, as well as the Illinois State
Police certification, the State argued there was sufficient
evidence to find Johnson guilty of aggravated unlawful use of
8 The trial court denied Johnson's motion to quash arrest
and suppress evidence and found him guilty of aggravated
unlawful use of a weapon. The court recognized that Johnson
"ha[d] a right to be in the alley." Nonetheless, it
also observed Johnson was in a "high crime area"
and "made a motion towards his waistband," which
Salvador believed indicated that Johnson was armed. The trial
court found that Johnson was not detained until after he ran
and jumped onto the hood of a police car, at which point the
officers had "articulable suspicion to *** detain Mr.
Johnson" and "pat him down."
9 Johnson filed a motion to reconsider the trial court's
denial of his motion to quash and suppress, as well as a
motion for new trial. Defense counsel argued that it was
"completely legitimate" for Johnson to stand in the
alley and hold his waistband. Thus, the police officers did
not have a basis to stop and pat down Johnson, regardless of
whether he ran from them and jumped on a police car, since
they did not have a reason to approach him in the first
place. Defense counsel also generally argued that the State
did not prove Johnson's guilt beyond a reasonable doubt
but did not raise whether the State failed to prove he lacked
a valid FOID card.
10 The trial court denied Johnson's motions, sentenced
him to 13 months' imprisonment, and denied his motion to
reconsider sentence. Johnson received 199 days of presentence
credit and was charged $719 in fines and fees.
11 On appeal, Johnson first argues that the trial court erred
in denying his motion to suppress because the police officers
lacked a reasonable, articulable suspicion to conduct the
Terry stop that produced the gun and statement that
were admitted at trial. According to Johnson, there was no
basis for the police officers to suspect that he was involved
in criminal activity since his actions in the alley did not
appear unlawful. The State responds that after Johnson held
his waistband, ran from the police, and jumped onto the squad
car's hood, a Terry stop and protective pat down
12 When reviewing a trial court's ruling on a motion to
suppress, we accord deference to the trial court's
factual determinations and will only reverse when those
findings are against the manifest weight of the evidence.
People v. Close, 238 Ill.2d 497, 504 (2010). This
standard is "grounded in the reality that the trial
court is in a superior position to determine and weigh the
credibility of witnesses, observe the witnesses'
demeanor, and resolve conflicts in the witnesses'
testimony." People v. Sorenson, 196 Ill.2d 425,
431 (2001). However, we "review de novo the
court's ultimate decision to grant or deny the
motion." Close, 238 Ill.2d at 504. When
affirming the trial court's denial of a motion to
suppress, the reviewing court may consider evidence presented
both at trial and at the suppression hearing. People v.
Caballero, 102 Ill.2d 23, 34-36 (1984); People v.
Lawson, 2015 IL App (1st) 120751, ¶ 28.
13 The fourth amendment of the United States Constitution and
the Illinois Constitution of 1970 both "guarantee the
right of individuals to be free from unreasonable searches
and seizures." People v. Colyar, 2013 IL
111835, ¶ 31; U.S. Const., amend. IV; Ill. Const. 1970,
art. I, § 6. "Reasonableness under the fourth
amendment generally requires a warrant supported by probable
cause." People v. Flowers, 179 Ill.2d 257, 262
(1997). But "a police officer may conduct a brief,
investigatory stop of a person where the officer reasonably
believes that the person has committed, or is about to,
commit a crime." Close, 238 Ill.2d at 505
(citing Terry, 392 U.S. at 22). Additionally,
"when an officer is justified in believing that the
individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous to the officer
or others, the officer may conduct a pat-down search to
determine whether the person is in fact carrying a
weapon." Sorenson, 196 Ill.2d at 432 (citing
Terry, 392 U.S. at 24). "Whether an
investigatory stop is valid is a separate question from
whether a search for weapons is valid."
Flowers, 179 Ill.2d at 263. Because Johnson
challenges the validity of both his stop and his search, we
will consider these two issues separately.
14 As an initial matter, we must determine the point at which
Johnson was seized, since the fourth amendment is not
implicated until a "seizure" occurs. People v.
Thomas, 198 Ill.2d 103, 110-11 (2001). "[A] person
is 'seized' only when, by means of physical force or
a show of authority, his freedom of movement is
restrained." United States v. Mendenhall, 446
U.S. 544, 553 (1980). In other words, a seizure occurs
"if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was
not free to leave." Id. at 554. The parties
agree, correctly, that Johnson was seized when, while he was
on top of the squad car, he allowed Officer Salvador to
conduct a pat-down. See id. (providing examples of
circumstances that might indicate a seizure, including
"some physical touching of the person of the
citizen"). Having determined the point at which Johnson
was seized, we consider whether, at that point, the police
officers properly stopped him under the principles set forth
15 A Terry stop must be justified at its inception,
and "[v]iewed as a whole, the situation confronting the
police officer must be so far from the ordinary that any
competent officer would be expected to act quickly."
Thomas, 198 Ill.2d at 110." '[I]n
justifying the particular intrusion the police officer must
be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant that intrusion.'" People v.
Galvin, 127 Ill.2d 153, 163 (1989) (quoting
Terry, 392 U.S. at 21). "The officer's
suspicion must amount to more than an inarticulate hunch
[citations], but need not rise to the level of suspicion
required for probable cause [citation]." Close,
238 Ill.2d at 505. "Unprovoked flight in the face of a
potential encounter with police may raise enough suspicion to
justify the ensuing pursuit and investigatory stop."
Thomas, 198 Ill.2d at 113. When determining the
validity of a stop, we must consider the totality of the
circumstances. People v. Timmsen, 2016 IL 118181,
16 The evidence summarized above-Johnson's late-night
presence in a high-crime area, his retreat upon seeing the
officers, and his conduct in holding his waistband and
ultimately jumping onto the hood of the police vehicle-all
give rise to a reasonable articulable suspicion of criminal
activity. In particular, Johnson's leap onto the hood of
a police car was, to say the least, an unusual act, which
suggested aggression and potential danger to the officers or
others, regardless of the neighborhood in which it occurred.
See People v. Jackson, 2012 IL App (1st) 103300,
¶¶ 17, 49 (stating that "unusual conduct"
can lead an officer to reasonably "conclude *** that
criminal activity may be afoot," and finding the
defendant's bizarre and "erratic" behavior
justified a Terry stop (internal quotation marks
omitted)). This conduct, along with the other evidence,
supported a finding of reasonable suspicion that defendant
was committing, or was about to commit, a crime. See
Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000)
(finding the police officer had a reasonable suspicion that
the defendant was involved in criminal activity, where the
defendant was seen in "an area of heavy narcotics
trafficking" and ran from the police without
provocation). Accordingly, the officers were justified in
conducting a Terry stop once Johnson leapt onto the
17 Johnson asserts that his actions leading up to the stop
were lawful, and that carrying a concealed weapon is not
per se unlawful. However, our supreme court has
recognized that "innocent behavior frequently provides
the necessary reasonable suspicion for a Terry
stop." Timmsen, 2016 IL 118181, ¶ 44
("Where possibly innocent conduct also suggests criminal
activity, *** an investigative stop is justified to resolve
the ambiguity."). Further, the United States Supreme
Court has acknowledged that "Terry accepts the
risk that officers may stop innocent people."
Wardlow, 528 U.S. at 126. That said, Johnson's
actions, which included running and jumping onto a police
car, were certainly "so far from the ordinary that any
competent officer would ...