People v. Sutton

2020 IL App (1st) 181616

190 N.E.3d 830

454 Ill.Dec. 848

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

v.Zivan SUTTON, Defendant-Appellant.

No. 1-18-1616

Appellate Court of Illinois, First District, SECOND DIVISION.

December 22, 2020

Maria A. Harrigan (Jace Carlton, law student) of DePaul University Legal Clinic, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Jessica R. Ball, Assistant State's Attorneys, of counsel), for the People.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Zivan Sutton was convicted of the offense of being an armed habitual criminal and was sentenced to 7½ years' imprisonment. On appeal, defendant seeks reversal of his conviction and the sentence imposed thereon, arguing that he was subjected to an unlawful search and seizure and that the circuit court erred in denying his pretrial motion to suppress evidence. For the reasons explained herein, we affirm the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 On April 22, 2017, defendant was a passenger in a vehicle that was subject to a traffic stop. During the course of the stop, defendant was ordered out of the vehicle and searched. Marijuana and a handgun were recovered from his person. Defendant was subsequently arrested and charged with a number of drug and weapons offenses, including being an armed habitual criminal.

¶ 4 Following his arrest, defendant filed a motion to suppress evidence, arguing that he was subjected to an unlawful search and seizure during the course of the traffic stop because law enforcement officials "had no reasonable basis on which to suspect that [he] was violating the law of a jurisdiction and [his] conduct could not be reasonably be construed to give rise to reasonable suspicion or probable cause that he had committed, was committing or was about to commit a criminal offense."

¶ 5 The circuit court subsequently presided over a hearing on defendant's motion. At the hearing, Chicago Police Officer Rozillius Cain testified that on April 22, 2017, at approximately 11:18 a.m., he and his partner, Officer Caster, were on patrol in their unmarked police vehicle in the vicinity of 312 E. 50th Street, when they "observed a vehicle that was being operated without the passenger wearing a seatbelt." Officer Caster, who was driving their unmarked police vehicle, activated their emergency lights and curbed the vehicle. Both officers then approached the curbed vehicle. Officer Cain approached the passenger side of the vehicle, while his partner approached the driver's side of the vehicle. As his partner began a conversation with the driver of the vehicle, Officer Cain observed defendant sitting in the front passenger seat. When the driver was unable to produce a driver's license, Officer Caster ordered him out of the car, ascertained that his license was suspended, and placed him into custody. Officer Cain, in turn, addressed defendant, who remained sitting in the vehicle, and asked him if he had any weapons or "anything illegal" on his person. Defendant initially responded "no." He then admitted that he had been in possession of cannabis, but that he had just smoked it. In response to additional questioning, defendant then admitted that he was in possession of a "bag of weed." As a result, Officer Cain requested defendant to exit the vehicle so that he could recover the marijuana and write defendant a citation.

¶ 6 Defendant complied, and Officer Cain asked him where the weed was located. After he recovered the bag of marijuana from defendant's pocket, he performed a protective pat down of defendant's person, during which he discovered a handgun in the waistband of defendant's pants. Upon discovering the weapon, Officer Cain placed defendant into custody. He admitted that, at the time he ordered defendant out of the vehicle and conducted a protective pat-down of defendant's person, he was not in possession of a search warrant or arrest warrant for defendant.

¶ 7 At the time of the traffic stop, Officer Cain was wearing a body camera that was in proper working order that recorded his encounter with defendant. The body camera footage was then played for the court.

¶ 8 The body camera footage of the traffic stop, which lasts approximately 14½ minutes, shows Officer Cain standing outside the passenger side of the vehicle as his partner addresses the driver and asks him to exit the car so she can run his name. Once Officer Cain's partner discovers that the driver had been operating the vehicle without a valid license, she handcuffs him, and the officers call for a transport vehicle. Approximately 5 minutes into the traffic stop, after a transport vehicle had been called but before it arrives, Officer Cain addresses defendant for the first time, asking defendant his name and whether he lives close to the area of the stop. Defendant identifies himself; however, he is not in possession of any identification. Officer Cain then asks him if he had "any weapons" or "anything illegal at all" on his person. Defendant initially denies possessing anything illegal, but then admits to being in possession of a bag of weed. Officer Cain informs defendant that he appreciates his honesty, that he will write defendant a citation, and that, afterwards, defendant will be "free to go." At that point, approximately 6½ minutes into the traffic stop, defendant exits the vehicle, and Officer Cain retrieves the bag of marijuana from defendant's pants pocket. Officer Cain then begins a frisk of defendant and recovers a loaded handgun. He relays his discovery to his partner and handcuffs defendant. Officer Cain thanks defendant for not reaching for the gun during the encounter and inquires whether defendant is in possession of a Firearm Owners Identification (FOID) card or concealed carry license. Defendant admits he possesses neither. Defendant is searched once again while he is handcuffed, and additional narcotics are found on his person. Officer Cain then conducts a search of the vehicle and arranges for the car to be impounded before leaving the scene.

¶ 9 On cross-examination, Officer Cain testified that defendant was going to have to exit the vehicle, regardless of the answers to the questions that he provided. He explained that because his partner ascertained that the driver of the vehicle was not in possession of a valid license and was taken into custody, the vehicle was going to be impounded.

¶ 10 When asked to provide additional detail about his interaction with defendant, Officer Cain estimated that he stood approximately four feet away from defendant when he first observed him seated in the vehicle. At that time, defendant was "visibly nervous" and was "fidgeting with his hands a lot," moving "them in and out of view." Officer Cain testified that one of the first questions he asked defendant was whether he was in possession of any weapons. Defendant responded, "no." He then asked defendant if he was in possession of "anything illegal," and defendant again responded, "no." Finally, Officer Cain asked defendant if he "was going to find anything" on him. At that point, defendant admitted that he was in possession of marijuana, and Officer Cain ordered him to exit the vehicle. Defendant complied and, when asked where the marijuana was located, directed Officer Cain to his front pants pocket. After he recovered the bag of marijuana from defendant's pocket, Officer Cain explained that he then conducted a protective pat down for weapons "[b]ecause in [his] experience usually when people have drugs on them there is a chance that there might be weapons" as well. Given that he was going to have to write defendant a citation for being in possession of marijuana, which required him to divert his attention away from defendant, Officer Cain was concerned for his own "personal safety." as well as for the safety of his partner. During the pat down that he performed due to the aforementioned safety concerns, Officer Cain recovered a loaded blue steel .380-caliber handgun from the waistband of defendant's pants. Defendant was then handcuffed, and a custodial search revealed that he was in possession of additional narcotics. Defendant was asked whether he had been issued a concealed carry license or a FOID card and responded, "no" to both questions.

¶ 11 After calling Officer Cain to testify, the defense rested without calling any additional witnesses. The State elected not to present any witnesses, and the parties presented their arguments concerning the legal basis for the search at issue.¹ After hearing the arguments, the court took the matter under advisement. At a later court date, the court ultimately denied defendant's motion to suppress. The court reasoned that the questions posed to defendant during the lawful traffic stop were "pretty much innocuous" and that defendant's admission that he was in possession of marijuana justified Officer Cain's decision to issue defendant a citation and to conduct a brief pat down in order to protect his safety and the safety of his partner.

¶ 12 Thereafter, the cause subsequently proceeded to a bench trial. The parties stipulated to the testimony that Officer Cain provided at the earlier hearing on defendant's motion to suppress. The State then called upon Officer Cain to provide additional testimony. Officer Cain testified that after he recovered the loaded handgun from defendant's person, defendant was transported to the Second District police station for processing. At the station, he admonished defendant of his Miranda rights, and defendant elected to waive his rights. Officer Cain inquired why defendant was in possession of a firearm. Defendant explained that some people were "after him" and that he felt he needed a gun for protection. On cross-examination, Officer Cain admitted that his conversation with defendant was not recorded or memorialized in any way.

¶ 13 Thereafter, the State...