from the Circuit Court of Lake County. Nos. 17-CF-2888
17-CF-2889 Honorable Theodore S. Potkonjak, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Presiding Justice Birkett and Justice Spence
concurred in the judgment and opinion.
1 Defendants, Lewis C. McKelvy and Fabian T. Harden, were
each charged with unlawful possession of a weapon by a felon
(720 ILCS 5/24-1.1(a) (West 2016)) and aggravated unlawful
use of a weapon (id. § 24-1.6(a)(1), (a)(3)(C);
(a)(1), (a)(3)(A-5)). The charges were based on evidence
recovered when a vehicle in which they were passengers was
stopped for speeding. They moved to suppress the evidence on
the basis that the traffic stop was prolonged beyond the time
necessary to address the traffic violation. The trial court
granted the motion, and the State brought this appeal. We
reverse and remand.
2 I. BACKGROUND
3 North Chicago police officer Muhamed Alka testified that,
on October 29, 2017, at about 1:45 a.m., he observed a blue
sedan traveling west on Argonne Drive at a high speed. The
vehicle turned left onto Lewis Avenue. Alka paced the sedan,
which was traveling at 40 miles per hour in a
30-mile-per-hour zone. Alka had previously been alerted that
there had been a shooting in Lake Forest and that "there
was a blue vehicle with a subject inside that may be
armed." At about 1:17 a.m., Alka had received a dispatch
from the Waukegan Police Department indicating that the
vehicle might be "in the region of Sheridan Road in
North Chicago." Sheridan Road was 19 or 20 blocks from
4 Alka stopped the sedan. As he approached, he saw three
people, including defendants. Harden was in the front
passenger seat and McKelvy was in the rear passenger seat.
Alka called for assistance and then walked up to the
passenger side of the car and spoke to the driver, Jerreyn
Smith. Alka asked Smith for identification. Alka also asked
Smith why he was driving so fast. Harden told Alka that they
were going to Lake Forest Hospital because his cousin had
been shot. Harden seemed nervous. Alka received
identification from all the occupants of the vehicle and ran
5 Within two or three minutes, Officers Deven Tolver and
Corey Friel arrived at the scene. Friel approached the
driver's side of the vehicle and Tolver went to the
passenger side. Alka asked Smith to exit the vehicle. Alka
explained that he did so because "it would be a safer
position *** to speak with the driver outside of the vehicle
away from the other occupants." Alka added that he
"wanted to perform a safety pat-down to make sure that
the driver was unarmed." Once Smith had exited the
vehicle, Alka performed a pat-down search. As a safety
precaution, Alka decided that the passengers should also be
removed from the vehicle. He asked Tolver to remove Harden.
After asking Harden to exit the vehicle, Tolver opened the
front passenger-side door. Tolver then yelled"
'Gun.'" Alka grabbed his own weapon and
instructed Harden to make his hands visible. Tolver removed a
9-millimeter Beretta handgun from the vehicle and handed the
weapon to Alka to ensure that it was out of Harden's
reach. Harden was then removed from the vehicle and
handcuffed. Tolver and Friel removed McKelvy from the
vehicle. McKelvy had a firearm in his waistband.
6 Alka was wearing a body camera during the encounter, but he
did not activate it until about a minute after stopping the
vehicle. Alka testified that Harden was removed from the
vehicle about five minutes after he activated the camera. A
recording from the body camera was played at the hearing and
admitted into evidence. Tolver can be heard shouting
"gun" 5 minutes and 43 seconds into the recording.
7 Asked what he was investigating when Tolver and Friel
arrived, Alka responded: "Initially, I was investigating
the initial offense, which was speeding. However, given the
circumstances of the vehicle matching the description of the
suspicious vehicle call we got from the Waukegan Police,
given the subject may be armed inside the vehicle, I
proceeded my investigation with reference to those
8 On cross-examination, Alka testified that there was no
warrant for the arrest of any of the occupants of the
vehicle. After checking for warrants, Alka learned that a
person of interest in the Lake Forest shooting was wearing a
blue shirt. Alka also testified that Harden's demeanor on
the video recording was different from his demeanor when Alka
initially approached him. Harden had calmed down in the
minute before Alka activated his body camera. Alka testified
that his investigation was initially "for a traffic stop
and any possible information related to the incident."
He also testified that, when Harden said that he was related
to a shooting victim, the encounter "evolved from a
traffic stop to information referenced to a shooting."
Alka started writing a traffic ticket only after defendants
9 Tolver testified that Friel was already at the scene when
he arrived. Friel was standing next to the front
driver's-side door of a blue vehicle. Alka was standing
near the vehicle, conducting Law Enforcement Agencies Data
System checks on its occupants. Tolver was aware of the
shooting in Lake Forest. He testified that there was "a
very vague description at the time of a subject in a blue
shirt." McKelvy was wearing a blue shirt.
10 The vehicle's occupants seemed nervous. After Smith
stepped out of the vehicle, Alka asked Tolver to remove
Harden. Tolver started to open the front passenger-side door.
Harden grabbed the door and tried to keep it closed. When
Tolver got the door open, he saw a handgun in the door's
"side pouch" and yelled" 'Gun.'"
Tolver testified that McKelvy was seated in the driver-side
rear seat. Tolver removed McKelvy from the vehicle,
handcuffed him, and placed him on the ground. As Tolver was
doing so, McKelvy said" 'Get it off my
hip.'" When McKelvy was on the ground, Tolver
recovered a handgun from his waistband.
11 Tolver was wearing a body camera, but he did not activate
it until a few minutes after he arrived at the scene. He
explained that he was distracted when he arrived, because
Alka was telling him what assistance was needed. In addition,
the cameras were "fairly new," so activating the
camera was not Tolver's "first instinct."
Tolver activated the camera while ...