People v. Jackson

979 N.E.2d 965

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Tommy JACKSON, Defendant–Appellant.

Docket No. 1–10–3300.

Appellate Court of Illinois, First District, Sixth Division.

Oct. 26, 2012.

Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, PeterFischer, and Janet C. Mahoney, Assistant State's Attorneys, of counsel), for the People.

Justice R. GORDON delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Tommy Jackson was convicted of two counts of unlawful use of a weapon by a felon. After hearing factors in aggravation and mitigation, he was sentenced as a Class X offender to 74 months in the Illinois Department of Corrections due to his criminal background. On appeal, defendant argues that the loaded handgun found in his backpack should have been suppressed because police officers lacked both (1) a reasonable suspicion to justify the Terry stop and (2) a reasonable belief that he was armed and dangerous, which was needed to justify the frisk. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Defendant was convicted of two counts of unlawful use of a weapon by a felon after a combined suppression hearing and bench trial. Chicago police officer Gary Anderson was the only witness that testified.

¶ 4 Officer Anderson testified that he had been on the force for three years, and that shortly after midnight on July 7, 2010, he was driving a marked squad vehicle with his partner. As he drove eastbound in the 3900 block of West Ferdinand Street in Chicago, he observed defendant with a backpack "walking westbound on Ferdinand at a rapid pace" and observed that defendant was watching his vehicle. We take judicial notice of the fact that this address is within the Humboldt Park neighborhood of Chicago. About 10 minutes later, Anderson observed defendant walking south on Pulaski toward Ferdinand. Anderson observed defendant "walking again at a rapid pace and this time paying more attention to us." Defendant "was directing his attention towards us the whole time that we drove by."

¶ 5 As the officers drove past defendant a second time, they noticed unusual behavior by defendant in that "we could see that he was still looking at us even when we had already passed him." The officers circled the block to return to defendant "to conduct a field interview." Officer Anderson described the stop as follows:

"Q. And what was the defendant doing at the time that you stopped your car?

A. When we stopped our car, he was standing on the corner.

Q. What, if anything, was the defendant doing?

A. When we got out of the our car, he began to act a little erratic.

Q. When you say he acted erratic, what do you mean by that?

A. He began speaking before we even asked any questions, moving his arms, flailing about, moving backwards.

Q. You said he was speaking?

A. I couldn't even understand what he was saying.

Q. What did your partner do after you stopped your vehicle?

A. We told him to put his hands on the hood of the car.

Q. And what was the purpose in doing that? A. Officer safety.

Q. Did the defendant comply?

A. No, he did not.

Q. What did you do next?

A. We repeatedly asked him to put his hands on the vehicle.

Q. And at any time while you were out there, did the defendant put his hands on the vehicle?

A. He repeatedly put them on and take them off [sic ].

Q. What was he doing with his arms while you were approaching him?

A. Pointing, flailing, all kinds of movements.

Q. At that point when the defendant refused to keep his hands on the vehicle, what did you do?

A. We detained him.

Q. When you say you detained him, how did you go about doing that?

A. We put his hands in cuffs."

¶ 6 Anderson testified that he performed a "protective pat down" of defendant and his backpack after defendant was handcuffed. In manipulating the backpack, the officer felt a "large metal object" he believed was the barrel of a gun. The officer opened the backpack and observed a handgun, which was loaded. The officers then took possession of the backpack and arrested defendant.

¶ 7 On cross-examination, Anderson testified that he and his partner exited their vehicle and approached defendant. Anderson did not recall if he asked defendant what was in his backpack. The officer testified that, as defendant started to speak, defendant moved backward and spoke before either officer had asked defendant a question. Anderson instructed defendant to place his hands on the hood of the squad vehicle and removed the backpack from defendant's shoulders. Anderson then placed the backpack on the hood of the squad vehicle before handcuffing defendant's hands behind his back.

¶ 8 On redirect examination, Anderson described the area in which these events took place as a "high violence, high narcotics trafficking area," where he had made arrests for violent and drug-related crimes before. Specifically, Officer Anderson testified:

"Q. And how would you describe the area that he was walking in?

A. It's a high violence, high narcotics trafficking area.

Q. Have you yourself made arrests in that area for those things before?

A. Yes, I have."

The trial court then asked "[r]ecross?" and defense counsel replied that she had no further questions "based on that."

¶ 9 After hearing argument, the trial court denied defendant's motion to quash the arrest and suppress the evidence. The trial court found credible the officer's testimony that this was a "high violence, high narcotics trafficking area"; and that defendant's actions were "erratic." The trial court held that, after the officers exited their vehicle and approached defendant, defendant's erratic actions, including his placing his hands on the police vehicle and removing them, provided the reasonable suspicion needed to justify an investigative stop. The trial court determined that, based on the totality of the circumstances, the detention of defendant and the subsequent patdown search of his backpack were warranted. The trial court then found defendant guilty of the charged offenses.

¶ 10 ANALYSIS

¶ 11 The sole issues on this appeal concern whether the officers had the reasonable suspicion needed for a Terry stop and frisk. On appeal, defendant argues, first, that the officers lacked the reasonable suspicion needed to support an investigative stop. Defendant argues, second, that, even if the investigative stop was proper, the police lacked the justification to perform a protective patdown of his person and his backpack. Defendant asks that we reverse the trial court's denial of his suppression motion. For the following reasons, we affirm.

¶ 12 I. Standard of Review

¶ 13 When reviewing a trial court's ruling on a motion to suppress, we accord great deference to the trial court's factual findings. People v. Close, 238 Ill.2d 497, 504, 345 Ill.Dec. 620, 939 N.E.2d 463 (2010). We will reverse a trial court's findings of fact only if they are against the manifest weight of the evidence. People v. Bunch, 207 Ill.2d 7, 13, 277 Ill.Dec. 658, 796 N.E.2d 1024 (2003). "A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence." Bazydlo v. Volant, 164 Ill.2d 207, 215, 207 Ill.Dec. 311, 647 N.E.2d 273 (1995).

¶ 14 However, we review de novo the trial court's ultimate legal ruling as to whether suppression was warranted. People v. Pitman, 211 Ill.2d 502, 512, 286 Ill.Dec. 36, 813 N.E.2d 93 (2004) ; In re Mario T., 376 Ill.App.3d 468, 472, 314 Ill.Dec. 954, 875 N.E.2d 1241 (2007) ("Our focus * * * is on the legal question of the justification of the stop and frisk so as to warrant the denial of the * * * motion to suppress * * *."). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.App.3d 564, 578, 350 Ill.Dec. 63, 948 N.E.2d 132 (2011). The ultimate legal question in the case at bar is whether the handgun should have been suppressed, which is a question that we consider de novo. Mario T., 376 Ill.App.3d at 472–73, 314 Ill.Dec. 954, 875 N.E.2d 1241 ("whether the motion should have been granted necessarily turns on a reviewing court's ‘own assessment of the facts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted’ " (quoting Pitman, 211 Ill.2d at 512, 286 Ill.Dec. 36, 813 N.E.2d 93) ).

¶ 15 II. Stop and Search Law

¶ 16 Under the fourth amendment to the United States Constitution ( U.S. Const., amend. IV), a police officer may lawfully stop a person for brief questioning when the officer reasonably believes that the person has committed, or is about to commit, a crime. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Illinois legislature codified the Terry standard, which provides in relevant part,

"Temporary Questioning without Arrest . A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense * * * and may demand the name and address of the person and an explanation of his actions." 725 ILCS 5/107–14 (West 2008).

Stated in other words, the Terry standard allows the police to conduct a brief investigative stop "when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The investigative stop must be justified at its inception. Terry, 392 U.S. at 19–20, 88 S.Ct. 1868. However, the officer does not need probable cause to justify a Terry stop. Close, 238 Ill.2d at 505, 345 Ill.Dec. 620, 939 N.E.2d 463 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ).

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