Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 15 CR 16797 The
Honorable Thomas M. Davy and William Raines, Judges,
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.
GORDON, PRESIDING JUSTICE.
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
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
3 For the following reasons, we reverse and remand for
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,  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]
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,
"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."
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 ...