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People v. Johnson

Court of Appeals of Illinois, First District, Second Division

July 25, 2019

JAMAL JOHNSON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 15 CR 15164 Honorable Vincent M. Gaughan, Judge, presiding.

          James 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.

          MASON JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Lavin concurred in the judgment and opinion. Justice Hyman dissented, with opinion.


          MASON JUSTICE.

         ¶ 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. 1, 2019).

         ¶ 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 certification.

         ¶ 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 defendant."

         ¶ 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 a weapon.

         ¶ 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 were justified.

         ¶ 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 in Terry.

         ¶ 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, ¶ 9.

         ¶ 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 squad car.

         ¶ 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 ...

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