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People v. Flunder

Court of Appeals of Illinois, First District, Fourth Division

December 26, 2019

TELLY FLUNDER, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 15 CR 16797 The Honorable Thomas M. Davy and William Raines, Judges, presiding.

          Attorneys for Appellant: James E. Chadd, Patricia Mysza, and Lauren A. Bauser, of State Appellate Defender's Office, of Chicago, for appellant

          Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Christine Cook, Assistant State's Attorneys, of counsel, and Armando Medina Jr., law student), for the People.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.



         ¶ 1 After a bench trial, defendant Telly Flunder, age 43, was convicted of unlawful use of a weapon by a felon and sentenced to 6 years in the Illinois Department of Corrections (IDOC).

         ¶ 2 The trial court granted defendant's motion to suppress the gun and then reconsidered and denied the motion. On appeal, defendant argues that the trial court's first decision was correct, while the State asks us to affirm the court's second and final decision. The State argues that the encounter at issue was not an investigative or Terry stop, but rather a voluntary and consensual police-citizen encounter, and that, during this voluntary encounter, the officer developed a fear for his safety that justified a frisk. Instead of the familiar stop-and-frisk, the State argues that this was a voluntary-encounter-and-frisk. In response, defendant contends that there is no such thing. Defendant argues that, if there was no legal basis for an investigative or Terry stop, then three was no legal basis for a frisk either.

         ¶ 3 For the following reasons, we reverse and remand for further proceedings.

         ¶ 4 BACKGROUND

         ¶ 5 At the pretrial suppression hearing, the defense called Officer David Bachlar, who testified that, on September 21, 2015, at 1:15 in the afternoon, he and his partner were in plain clothes and driving an unmarked vehicle down Racine Avenue in Chicago, when they observed defendant standing next to a vehicle at a gas station. The vehicle was by a gas pump, and defendant was standing by the driver's side, which was the side away from the pump. The officers "pulled up and asked him his business" at the gas station and asked if the vehicle belonged to him. Defendant replied that the vehicle belonged to his cousin, and Officer Bachlar asked if he had a driver's license. During this conversation, defendant "began to move around, fidget with his clothes; and at one point he bent out of sight" of the officers. Defendant's vehicle was located between defendant and the officers, [1] such that they could not observe defendant when he bent down. Prior to bending down, defendant had reached toward his pockets.

         ¶ 6 Bachlar testified that, "[d]ue to the safety issue," he walked around to defendant's side of the vehicle and performed a protective patdown of defendant. During the patdown, Bachlar felt what he believed to be a gun in defendant's pants pocket and asked defendant what it was. Defendant replied that it was "a little pea shooter." Bachlar understood from that statement that the object was a gun. Bachlar then reached into defendant's pocket and retrieved a gun that was 2 inches by 4 inches in size. The .38 caliber gun held two bullets.

         ¶ 7 On cross, Bachlar testified that he was on patrol in that area because "a lot of people" had been shot there within the last couple of weeks. After Bachlar asked defendant if he had a driver's license, defendant appeared "very nervous." After Bachlar recovered the gun, defendant did not provide a Firearm Owners Identification (FOID) card or a concealed carry license. Bachlar frisked defendant out of "fear for [his] safety."

         ¶ 8 On redirect, Bachlar admitted that, in both the arrest report and the case incident report that he prepared, he did not state either that defendant was moving around a lot or that defendant appeared nervous. Bachlar also admitted that he had no information that defendant or his vehicle was involved in any recent shootings.

         ¶ 9 Bachlar was the only witness at the suppression hearing. At its conclusion, the defense argued that the police officers had no reasonable suspicion to believe that defendant was doing anything wrong when he was standing next to a vehicle at a gas pump in the middle of the afternoon. In response, the State argued that this was not a Terry stop, but a voluntary police-citizen encounter, during which Officer Bachlar became fearful for his safety and conducted a frisk. The State argued that the officer reasonably feared for his safety due to the reports of shootings in the area and the fact that defendant bent out of sight of the officers, as though he was trying to conceal something.

         ¶ 10 After listening to the evidence and arguments, the trial court found that, when defendant "duck[ed] down," if the officer "could not specifically articulate that it was a weapon," then the officer "went beyond" what the case law allowed, and the trial court granted defendant's motion to suppress the gun.

         ¶ 11 On March 22, 2016, the State filed a motion to reconsider, citing the same cases that the prosecutor had cited during the suppression hearing. On April 19, 2016, the trial court heard argument on the State's motion and granted it, stating

"I believe that I was in error on February 17th based on the actions of the [d]efendant, specifically, the fact that he was bent over and that his vehicle was between himself and the officers, that Officer [Bachlar] would have been justified in a limited pat down, which was what was done, a protective pat down."

         The court vacated its prior ruling of February 17, 2016, and denied defendant's motion to quash arrest and suppress evidence. On November 10, 2016, the defense filed a motion to reconsider, which was denied.

         ¶ 12 At the bench trial held on April 18, 2017, Officer Bachlar was again the only witness, and his testimony on direct examination was substantially consistent with his prior testimony at the suppression hearing. In addition to what he already testified to at the suppression hearing, Bachlar testified that the conversation he had with defendant lasted only 15 seconds before he patted defendant down. After being taken into custody but while still at the scene, defendant stated that he had obtained the gun from his uncle's shop and was taking it home.

         ¶ 13 On cross-examination, Bachlar testified that he did not recall whether there was a gas-pump hose inside defendant's gas tank or whether a gas container was being filled at the pump. Drawing on a photo of the gas station, Bachlar clarified that the police vehicle was to the left of the pump, defendant's vehicle was to the right of the pump, and defendant was standing on the side of his vehicle away from the pump. When Bachlar asked defendant if he had identification, Bachlar did not recall what defendant said in response. Bachlar also did not recall whether he ...

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