People v. Linley

903 N.E.2d 791

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John D. LINLEY, Defendant-Appellant.

No. 2-08-0171.

Appellate Court of Illinois, Second District.

February 11, 2009.

Peter B. Nolte, Sreenan & Cain, P.C., Rockford, IL, for Appellant.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford, IL, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Gregory L. Slovacek, State's Attorneys Appellate Prosecutor, Elgin, IL, for Appellee.

Justice SCHOSTOK delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of Winnebago County, defendant, John D. Linley, was found guilty of possession of cocaine with intent to deliver (720 ILCS 570/401(c)(2) (West 2006)) and was sentenced to a seven-year prison term. On appeal, defendant argues that the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence. We reverse.

At the hearing on his motion, defendant testified that, on June 5, 2006, at about 1:25 a.m., he was standing outside his home, talking to two individuals who were sitting inside a truck parked at the end of his driveway. The home was located at the corner of North Day Avenue and Liberty Street in Rockford. At that time, several police cars pulled up. Police officers emerged from the vehicles and confronted defendant. The officers grabbed defendant and placed him against the truck. One of the officers held defendant against the truck. Another officer conducted a pat-down search and removed various items from defendant's pants pockets.

Aaron Booker testified that he was a sergeant with the Winnebago County sheriff's department. He had worked for the department for 13½ years, having previously served for 7½ years as a patrol officer with the Loves Park police department. Booker testified that he had been trained in how to perform a pat-down search and that he conducted such searches frequently. On June 5, 2006, at about 1:25 a.m., Booker was dispatched to investigate a report of shots fired in the vicinity of an establishment known as the Two Wheel Inn. Booker had been dispatched to the same area in the past to investigate reports of shots fired, fights, domestic violence, and drug activity. Booker testified that gunshots were frequently reported in the area. After turning onto North Day Avenue, Booker observed a pickup truck with its engine running, sitting in the street at the end of a driveway. Defendant and another individual were standing outside the truck, talking to someone in the truck. Booker testified that "it appeared as if [defendant] was considering to run, so I had to approach him rather quickly, and he did not run, so I advised him to keep his hands on the truck where I could see them and started a patdown search." Asked why he believed that defendant might run, Booker responded, "[t]he mere action of backing away from the truck, the body language, suggestive body language, that made—He took a quick glance in the opposite direction of where I was, and then when I say that he decided not to, it's like his body relaxed as if to comply with * * * what I was doing, what my action was." While patting down defendant's outer clothing, Booker felt a lump in defendant's pocket. Booker initially testified only that the lump was unusual. He later testified that he believed the lump was "an illegal drug or substance." Booker removed the contents of the pocket and discovered what appeared to be cocaine. Booker also removed, inter alia, a digital scale from defendant's pocket.

The trial court's ruling on the motion to quash and suppress presents mixed questions of law and fact. People v. Lee, 214 Ill.2d 476, 483, 293 Ill.Dec. 267, 828 N.E.2d 237 (2005). "The circuit court's findings of historical fact will be upheld on review unless they are against the manifest weight of the evidence, but `a reviewing court remains free to undertake its own assessment of the facts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted.'" People v. Nitz, 371 Ill.App.3d 747, 750, 309 Ill.Dec. 185, 863 N.E.2d 817 (2007), quoting Lee, 214 Ill.2d at 484, 293 Ill.Dec. 267, 828 N.E.2d 237. The ultimate issue of whether to quash and suppress is subject to de novo review. Nitz, 371 Ill.App.3d at 750, 309 Ill.Dec. 185, 863 N.E.2d 817.

On a motion to quash and suppress, the defendant bears the burden of establishing a prima facie case that he was doing nothing unusual to justify the intrusion of a warrantless search or seizure. People v. Beverly, 364 Ill.App.3d 361, 369, 301 Ill.Dec. 97, 845 N.E.2d 962 (2006). If the defendant makes the required showing, the burden shifts to the State to present evidence to justify the search or seizure. Beverly, 364 Ill.App.3d at 369, 301 Ill.Dec. 97, 845 N.E.2d 962. There appears to be no dispute that defendant made a prima facie case, thus obliging the State to establish its justification for detaining and searching defendant. The parties are also in agreement that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny supply the legal framework for determining the validity of the detention and search. In Terry, the United States Supreme Court held that the public interest in effective law enforcement makes it reasonable in some situations for law enforcement officers to temporarily detain and question individuals even though probable cause for an arrest is lacking. Terry authorizes a police officer to effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and articulable facts, that the person detained has committed or is about to commit a crime. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. During a Terry stop, an officer may frisk a person for weapons where the officer reasonably believes that he is dealing with an armed and dangerous individual. People v. Davis, 352 Ill.App.3d 576, 580, 286 Ill.Dec. 882, 815 N.E.2d 92 (2004). "This reasonable belief is met if a reasonably prudent person, when faced with the circumstances that the police confronted, would have believed that his safety or the safety of others was in danger." Davis, 352 Ill.App.3d at 580, 286 Ill.Dec. 882, 815 N.E.2d 92.

This court has noted that "[w]hether an investigatory stop is reasonable is determined by an objective standard, and only facts known to the officer at the time of the stop may be considered." Nitz, 371 Ill.App.3d at 751, 309 Ill.Dec. 185, 863 N.E.2d 817. In this regard, however, information known to all officers acting in concert is imputed to the officer conducting the investigatory stop. People v. Ewing, 377 Ill.App.3d 585, 593, 316 Ill. Dec. 851, 880 N.E.2d 587 (2007). Where the officer conducting the stop acts on information or instructions received from another officer, the focus is on whether the officer communicating the information or instructions had reasonable suspicion. Ewing, 377 Ill.App.3d at 593, 316 Ill.Dec. 851, 880 N.E.2d 587. If, as in this case, the officer initiating the stop relies on a dispatch, the officer who directed the dispatch must have possessed sufficient facts to establish reasonable suspicion for the stop. Ewing, 377 Ill.App.3d at 594, 316 Ill.Dec. 851, 880 N.E.2d 587.

An investigatory stop need not be based on personal observations by the officer conducting the stop (or by those officers whose knowledge is imputed to the officer conducting the stop). See Nitz, 371 Ill.App.3d at 751, 309 Ill.Dec. 185, 863 N.E.2d 817. A stop may also be based on information received from members of the public. Nitz, 371 Ill.App.3d at 751, 309 Ill.Dec. 185, 863 N.E.2d 817. However, the informant's tip must bear "`some indicia of reliability'" in order to justify the stop. Nitz, 371 Ill.App.3d at 751, 309 Ill. Dec. 185, 863 N.E.2d 817, quoting Village of Mundelein v. Thompson, 341 Ill.App.3d 842, 850, 276 Ill.Dec. 237, 793 N.E.2d 996 (2003). "[A] reviewing court should consider the informant's veracity, reliability, and basis of knowledge." People v. Sparks, 315 Ill.App.3d 786, 792, 248 Ill Dec. 508, 734 N.E.2d 216 (2000). Whether a tip is sufficient to support a stop is not determined according to any rigid test, but rather depends on the totality of the circumstances. Nitz, 371 Ill.App.3d at 751, 309 Ill.Dec. 185, 863 N.E.2d 817.

The nature of the informant is relevant. All other things being equal, information from a concerned citizen is ordinarily considered more credible than a tip from an informant who provides information for payment or other personal gain. Nitz, 371 Ill.App.3d at 752, 309 Ill.Dec. 185, 863 N.E.2d 817. Another significant factor in determining the reliability of a tip received from a member of the public is whether, prior to conducting a Terry stop, the officer is aware of facts tending to corroborate the tip. See Nitz, 371 Ill. App.3d at 751, 309 Ill.Dec. 185, 863 N.E.2d 817. This court has observed that "[c]orroboration is especially important when the informant is anonymous [citation] and is even more important when the anonymous tip is given by telephone rather than in person." Nitz, 371 Ill.App.3d at 751, 309 Ill.Dec. 185, 863 N.E.2d 817. There is authority, however, that a tip conveyed via an emergency telephone number—a 911 call for instance—should not be considered "truly anonymous," even if the caller does not specifically identify himself or herself. See People v. Shafer, 372 Ill.App.3d 1044, 1050-51, 311 Ill.Dec. 359, 868 N.E.2d 359 (2007). The rationale is that such a caller is likely aware that, because the authorities often record emergency calls and have the means to instantly determine the telephone number from which a call was placed, they may therefore be able to determine the caller's identity. That an informant has placed his or her anonymity at risk may be considered in assessing the reliability of the tip. See Shafer, 372 Ill. App.3d at 1050-51, 311 Ill.Dec. 359, 868 N.E.2d 359, c...