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People v. McKelvy

Court of Appeals of Illinois, Second District

September 3, 2019

LEWIS C. McKELVY and FABIAN T. HARDEN, Defendants-Appellees.

          Appeal 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 Lewis Avenue.

         ¶ 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 warrant checks.

         ¶ 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 circumstances."

         ¶ 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 were arrested.

         ¶ 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 ...

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