People v. Smith

33 N.E.3d 908

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Vernon SMITH, Defendant–Appellant.

No. 1–13–1307.

Appellate Court of Illinois, First District, Fifth Division.

May 29, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Joshua M. Bernstein, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Carol L. Gaines, and Leslie Billings, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant was convicted of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24–1.6 (West 2010) ) and unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24–1.1 (West 2010) ). The trial court subsequently sentenced defendant to concurrent terms of nine years in the Illinois Department of Corrections.

¶ 2 Defendant appeals, arguing that: (1) the trial court erred in denying his motion to quash his arrest and suppress evidence because defendant's “furtive movements” did not support a reasonable inference that he was armed and dangerous; (2) defendant's convictions for AUUW and UUWF violate the one-act, one-crime rule; (3) defendant's conviction for UUWF violates the second amendment (U.S. Const., amend.II); (4) defendant's sentence for AUUW violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11 ); and (5) the mittimus should be corrected to reflect 450 days of presentence credit and that defendant was found guilty of counts I and V.

¶ 3 Following a traffic stop in February 2011, a firearm and ammunition were found in defendant's vehicle. Defendant was arrested and subsequently indicted on multiple counts of AUUW and UUWF. Prior to trial, defendant filed a motion to quash his arrest and suppress evidence. In his motion, defendant argued that his conduct prior to his arrest “would not reasonably be interpreted by the arresting officers as constituting probable cause that [defendant] had committed or was about to commit a crime.”

¶ 4 The trial court conducted a hearing on defendant's motion in July 2011. At the hearing, Baretta Thomas testified that he was in the passenger seat of defendant's car at approximately 1:30 a.m. on February 5, 2011. Defendant was driving Thomas home. Thomas stated that the roads were slippery due to recent snowfall and defendant “slid” through the stop sign at 73rd Street and University Avenue. Thomas said that defendant pulled over immediately after the police activated their lights. Two officers approached the vehicle and one asked defendant for his driver's license and insurance. Thomas testified that the officers then removed Thomas and defendant from the car. The men were handcuffed together. The officers then searched the car. Thomas stated that defendant was calm and cooperative with the police officers. On cross-examination, Thomas admitted he was asleep during the incident and did not know if defendant stopped at the stop sign. Thomas stated on redirect that he was awake when the police turned on their lights.

¶ 5 Officer Perez testified for the State. He stated that on February 5, 2011, he was on routine patrol with a partner in uniform in a marked squad car. He was the driver and Officer Hagen was in the passenger seat. Officer Perez was driving westbound on 73rd when he approached a four-way stop with University. He observed a Buick LeSabre make a left turn from University onto 73rd without stopping at the posted stop sign. Officer Perez stated that he could see the rear brake lights on the car but did not see the lights on. He did not see “any pause at that intersection.” At that point, Officer Perez “followed the vehicle for a couple of blocks and curbed it.”

¶ 6 After the vehicle stopped, Officer Perez approached on the driver's side. He identified defendant as the driver. As he approached, he “observed [defendant] making a furtive movement towards the rear of the passenger seat.” He stated that he saw defendant “reach with his right hand towards the rear of the front passenger seat.” Officer Perez stated there were streetlights in the area and the headlights of his vehicle and a spotlight were directed at the stopped vehicle.

¶ 7 Officer Perez asked defendant to step out of the vehicle and he detained him. Officer Perez testified that there was also a person in front passenger seat. He stated that the passenger was asleep and his partner woke the passenger by banging on the door. Both men were asked to step behind the car and Officer Perez called for additional squad car assistance. He then returned to the vehicle and searched in the area where he observed defendant reach and he discovered a .25–caliber handgun with a purple Crown Royal bag containing live ammunition.

¶ 8 On cross-examination, defense counsel asked Officer Perez when he “put [his] lights on after the stop sign,” and Officer Perez answered, “It wasn't until I—a couple of blocks before I curbed the vehicle.” Defense counsel also asked, “When you curbed the vehicle, [defendant] pulled over immediately, is that fair to say?” Officer Perez responded, “Yeah.” Officer Perez stated that when he approached the vehicle, he did not see a firearm in defendant's hand and that he never saw a firearm in defendant's hand. He said he was approximately three feet away when he observed defendant reaching for the back of the front passenger seat, but he had a clear view through the window. He estimated that defendant's movements lasted three to four seconds.

¶ 9 Officer Perez described defendant as quiet and he followed the officer's direction and was not argumentative. When asked why he asked defendant step out of the car, Officer Perez answered, “for officer safety.”

¶ 10 After hearing evidence and arguments, the trial court requested the parties submit additional briefing on the motion. In August 2011, the trial court denied defendant's motion to quash his arrest and suppress evidence. The court made the following findings on the record.

“[I]t was a police car chasing a person. And the circumstances of that is [sic ] as they are approaching this car, there is this furtive movement. The person is aware of an officer approaching* * *. And the officers are aware that they had to trail someone for something—the stop wasn't right away. And I think that's part of the situation is the circumstances of the stop. And these types of cases are analyzed and determined whether or not—what the actions whether or not the officers took was appropriate under the law. And the court * * * finds that it was. That being seeing that movement after giving chase, in uniform, but clearly a police car, movement toward the rear of the car there. And that they did a search and that weapon was recovered in the back area there towards where he made the furtive movement.

The court finds, of course, the stop was valid because of the traffic incident. But the stop was valid. And then they were approaching to do this interview pursuant to the stop rather and the evidence that defendant seeks to suppress is—was recovered.”

¶ 11 Defense counsel tried to clarify to the trial court that no chase occurred when defendant was pulled over, but the State disagreed. The court found that “[t]here was a chase however short. Under those circumstances, they come to this car. And the driver is gesturing, making a furtive movement toward the rear of the car as the officers are approaching from the rear.” The court held that the officers' actions were constitutional.

¶ 12 A jury trial was conducted before a different trial judge in March 2013. Officer Perez's testimony was substantially similar to his testimony at the suppression hearing. Officer Perez stated that after he observed defendant disregard the stop sign, he “proceeded to get behind the vehicle and eventually we curbed him.” The prosecutor asked Officer Perez, “By ‘curbed,’ do you mean you activated the lights and sirens?” Officer Perez responded, “Yes. We activated the lights and then he pulled to the side, pretty much curbed.” On cross-examination, Officer Perez stated when he turned on his lights, the vehicle “curbed right away.”

¶ 13 Officer Perez again testified that as he approached defendant's vehicle, he observed defendant “with his right hand with a shoving motion to the front passenger rear pouch * * * of the seat.” Officer Perez stated that he called for assistance and one unit arrived at the scene as he and his partner were moving defendant and Thomas to the rear of the car. Officer Perez then returned to defendant's vehicle and searched the pouch of the passenger seat. He recovered a loaded firearm and 16 rounds of live ammunition in a Crown Royal bag.

¶ 14 Officer Hagen testified that on February 5, 2011, he was on routine patrol and assigned with Officer Perez. Officer Hagen was the passenger in the marked squad car. He testified consistent with Officer Perez's description of the traffic violation. He stated that after they observed the vehicle disregard the stop sign, Officer Perez drove behind the vehicle and they ran the vehicle's license plate and then they curbed the vehicle.

¶ 15 As he approached the vehicle from the passenger side, Officer Hagen observed defendant “trying to hide something” with his right hand in the rear pouch of the front passenger seat. When Officer Hagen approached the passenger side, he saw an individual who appeared to be sleeping in the passenger seat. Officer Hagen knocked on the window to wake the passenger. He escorted the passenger out of the vehicle and brought him to the rear of the vehicle. He observed Officer Perez search where it appeared defendant may have hidden something. Officer Perez recovered a firearm and ammunition, which he showed to Officer Hagen.

¶ 16 The State also presented documents from the State indicating: (1) defendant has never been issued a firearm owner's identification card, (2) a 1998 Buick LeSabre was...