2014 I LApp (3d) 120338 Opinion filed J anuar

y 13, 2014
I N THE APPEL LATE COURT OF I L L I NOI S THI RD DI STRI CT A.D., 2014 THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee , v. OMAR PORTER Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of the 10th Judi cial Circuit, Peoria County , I llinois , Appea l No. 3-12-0338 Circuit No. 10-CF- 1024 Honora ble Timothy M. Lucas, J udg e, Presiding
. J USTI CE O' BRI EN deliver ed the judg ment of the c ourt, with opinion. J ustices Carter

and Holdridg e conc urre d in the judgme nt and opinion.

OP INION ¶ 1 The de fenda

nt, Omar Porter , was c onvicted of a rmed violenc e (720 I L CS 5/ 33A-2(a ) (West 2010)) af

ter a stipulated bench tria l, following the denial of his motion to quash his arre st and suppre ss evidence . The de fenda nt appea led. ¶ 2 FACTS ¶ 3 The de fenda

nt was ar rested on O ctober

2, 2010, and found in possession of a loaded handgun and appr ox imately five grams of c ocaine . He wa s later indicted f or ar med violence (720 I L CS 5/ 33A-2(a ) (West 2010)), unla wful possession of a w eapon by a fe lon (720 I L CS5/24-1.1(a) (West 2010)), two counts of a g g ravated unlawf ul use of we apon (720 IL CS 5/ 24- 1.6(a) (1) ( West 2010)), and unlaw ful possession of a c ontrolled substance (720 I L CS 570/ 402(c) (West 2010)). The defe ndant filed a motion to quash his arrest and suppr ess evidenc e, ar guing that the evidenc e wa s discovere d duringan unlawf ul arre st and seizure. The tr ial court he ld a hear ing on the motion. ¶ 4 Peoria police office r De nise Whit e testified that she arr ived at a home on Northea st Monroe Stree t in Peoria at 3:56 am on Oc tober 2, 2010, in re sponse to a possible home invasion. The victim told W hite that she had be en slee ping on the couch a nd woke up to find a

man standingover he r shining his c ell phone lig ht at her. The man went into another room, and the victim never sa

w him ag ain. The vic tim described the ma n as a bla ck male w ith a dark complexion and braids, wea ringa dar k hat and da

rk clothing
. ¶ 5 Peoria police office r Jacob Be ck testified that he was a lone in his squad car when he responde d to a ca ll about a home invasion in the ea rly morninghours of Oc tober 2. When the descr iption went out, and another office r stated the he saw a man walkingthat could have been the male involved, B eck tr avele d in the same dire ction and sawa man matc hing that description in the Super Pantry . Be ck sawa blac k male, with small braids, we aringa blac k shirt and black hat. He ha d a re d T-shirt on under the black button-up shirt. As B eck w alked up to the f ront door, the de fenda

nt looked and sawBe ck and took a couple of steps backw ards, looked at the
rea r exit door, and saw a

nother off icer at the bac k door. The de fenda nt did not make any

quick movements, nor did re ach into his coat or his pockets. B eck motioned f or the de fenda

nt to come out of the store, which he did. The repor t from dispatch did not indicate that the victim of the home invasion saw a

wea pon, and B eck ha d no other notice that the suspect wa s known to have a

2wea

pon on him. As the defe ndant exited the store, B eck, who held the door ope n, g rabbe d the defe ndant by

the left wr ist and conducte d a patdown f or any wea pons. Be ck testified that he conducte d the patdown f

or off icer safe ty rea sons. Be ck did not reme mber what he said to the defe ndant. The de fenda

nt tried to pull away , and he tr ied to take of f running
. ¶ 6 Serg eant Paul Seg roves, a lso with the Peoria police de partment, testified that he responde d to a ca ll reg ardinga possible home invasion on the morningof Oc tober 2. On his wa y to the scene , a fe w blocks fr om the home, he obse rved a black male walkingsouthbound, on the river side of the stre et. Seg roves thoug ht it was odd beca use it was ra ining out and the re w ere no homes of the r iver side of the stree t. He re ported that he just passed a male , and g ave his descr iption, and then went to the sce ne. When the victim' s descr iption fit t he desc ription of the man he sa w, Seg roves g ot back in his ca r to g o look for him. Seg roves kne w that the Super Pantry , about eig ht blocks awa y , was the only

open business in the ar ea, so he went ther e, and Be ck followe d. Seg roves we nt around ba ck, and he saw the de fenda nt walkingtoward the back of the store until the defenda nt saw Seg roves’ car . Seg roves testified that Be ck motioned the defe ndant to come out the f ront door, and B eck grabbe d the def endant' s arm whe n he did. The defe ndant immediately

started to twist and attempted to run. T hey strug g led for a

bout 10 fee t and fe ll into t he g as pumps. Duringthe strug g le, a pistol fell out of the de fenda nt's be lt. ¶ 7 The de fenda

nt testified that he wa s walkingfrom his sister' s house to the Super Pantry around 4 a .m. on the morningof Oc tober 2 to buy something to drink. He was wa lking southbound, and he re membere d seeingthe police of fice r drive pa st him goingnorth. He testified that he wa s wea

ringa blac k T-shirt with a long -sleeve red shirt unde rneath, with a black hat with a re d Dodg ers log o, and he ha d braids. He continued into the Super Pantry . He notice d
3about four othe r people in the Super Pantry ; none wer e dre ssed like the def endant a nd none had braids. While in line to check out, he notice d both office rs pull up to the Super Pantry . The defe ndant denied w alkingtoward the back door . He f ollowed B eck out of

the store, a

nd he testified that B eck immediate ly g rabbe d his right a

rm and tripped him to the ground. The defe ndant testified that, af ter a sking him to step outside, Be ck did not say any thing e lse to the defe ndant. ¶ 8 The trial c ourt denied the motion, finding that there wer e ar ticulable fa cts that justified the stop and tempora

ry detention. It found that the def endant wa s walkingin a g ener ally nonpedestria

n are a aw ay

from whe re a

home invasion was r eporte d, the def endant matc hed the descr iption of the home invader , the def endant made furtive moveme nts inside the store, and the defe ndant attempted to fle e. Unde r those fa cts, the trial cour t found that the police of

fice rs wer e actingrea sonably

when they

stopped the def

endant a nd a patdown w as justified. ¶ 9 The de fenda

nt waived his rig ht to a jury trial and c onsented to a stipulated be nch trial, prese rvingthe issue of the se arc h and seizure f or appe al. The de fenda

nt was convic ted of a

rmed violence a

nd sentenc ed to 20 y ear s in prison. The def endant a ppeale d. ¶ 10 ANALYSI S ¶ 11 The de fenda

nt argues that the trial c ourt should have grante d his moti on to quash and suppress bec ause the police did not rea sonably suspect that the de fenda

nt had committed a cr ime. Even if the police had re asonable suspicion, the defe ndant ar gues that they exceede d the scope of the investig atory

stop when they

seized him and beg an sea rching him for wea

pons when they

did not have a

rea sonable suspicion that he w as ar med and da

ng erous. The State argues that the police off icer s had a r easona

ble suspicion to stop the defenda nt.
4¶ 12 The United States a nd I llinois Constit utions protect people f rom unrea sonable sea

rche s and seizures. U.S. Const., amend. IV; I ll. Const . 1970, art. I , § 6. Gene rally , rea sonablene ss require s a wa

rra nt supported by

probable cause . People v . Flowers , 179 I ll. 2d 257 (1997). Police office rs ca

n, howeve r, brief

ly stop and question an individual without a war rant if they suspect that the individual committed, is committ ing, or is about to commit a crime. Terry v. Ohio , 392 U.S. 1 (1968). When conduc ting a Terrystop for such a n investigatory

purpose, police off icer s, when ne cessa

ry for sa fety , may

conduct a

limit ed prote ctive sea

rch f or we apons. Flowers , 179 I ll. 2d at 262. In deter mining whe ther a

police off

icer ' s suspicion was re asonable , courts conside r the totality of circ umstances surr ounding the stop. People v . Smith , 331 I ll. App. 3d 1049 (2002). W

hen re view inga trial c ourt' s rulingon a m otion to suppress evidence , w e w ill uphold f actua l f inding s unless they

are ag ainst the m anif

est w eig ht of the evidenc e, but w e re view de novo the ultim ate leg al question of whether suppression w as w arr anted. P eople v . A bsher , 242 I ll. 2d 77 (2011). ¶ 13 In denying the defe ndant' s motion, t he trial c ourt found that the a rea that the def

endant
was wa lking wa s suspicious because it was a g ener ally nonpedestria

n are a nea

r the sce ne of a repor ted home invasion. It found that the def endant, with his black shirt a nd hat and br aids, matched the descr iption of the invader. It also found that the def endant' s steps toward the ba ck of the store , afte r see ing the police off icer arr ive in the front, we re f urtive movements. B ased upon the testimony

of the witnesse s, those fac tual finding s were not unrea sonable or a rbitrar y , or not based upon the e vidence . See People v . Deleon , 227 I ll. 2d 322 (2008) (a findingis ag ainst the manife st weig ht of the evide nce only if the opposite conc lusion is clearly evident, or if the findingis unreasona

ble, ar bitrary , or not based on the evidenc e). I n light of those f

actua l
5finding s, an investig atory stop of the def

endant, ba sed upon the re asonable suspicion that the defe ndant committed a cr ime, was justified. ¶ 14 The de fenda

nt argues that eve n if the stop was justified, the off icer s exceede d the scope of the Terrystop by

conductinga patdown se arc h for we apons whe n they did not have a
rea sonable suspicion that he w as ar med and da

ng erous. Althoug h there are circ umstances whe n a police of

fice r phy sically

g rabbing a suspec t to effe ctuate a

stop is warra

nted, those circ umstances we re not pre sent in this case. See United States v. Sok olow , 490 U.S. 1 (1989) (g rabbinga suspec t and moving him to a sidew alk to preve nt him from depar ting a n airport in a taxi cab w as re asonable under the circ umstances to ef fec tuate a stop). O ffice r B eck w aved the defe ndant towar d himself at the fr ont door of the Super Pantry , and the de fenda

nt complied. Be ck eve n held the door ope n for the de fenda nt to ex it. Bec k did not give the defe ndant an opportunity

to answer

any questions, but imm ediately grabbe d the def

endant a nd put him in a lock to conduct a

patdown. ¶ 15 Duringa Terry stop, a limit ed sea rch f or we apons, or a

“fr isk,” is warr anted only if a police off icer has re ason to believe that the def endant is ar

med and da

ng erous. Flowers , 179 I ll. 2d at 262; 725 I L CS 5/ 108-1.01 (West 2010). The rea sonablene ss of a police office r’s be lief is
measure d by

an objec tive standard, whether a re asonably

prudent pe rson in the circ umstances would be wa

rra nted in believingthat his safety of that of other s was in dang er. Flowers , 179 I ll. 2d at 264. I f a pr otective se arc h g oes beyond what is nec essar y to determine if a

suspect is
arme d, it is no l ong er va lid under Terry and any fruits of the se arc h will be suppressed. People v

. Sorenson , 196 I ll. 2d 425 (2001). ¶ 16 Although B eck te stified that he conduc ted the patdown f or off icer safe ty rea sons, he did
6not articulate any rea sons that would lead a r easona bly prudent pe rson to believe his saf ety was in dang er. The victim of the home invasion re ported that the suspe ct had a cell phone, but did not repor t any wea pon. The off

icer s both testified that the defe ndant made f urtive movements toward the back door , but Be ck testified that the de fenda nt only took a couple of

slow steps toward the back of

the store, a

nd the def

endant ne ver ma de any

move to rea ch inside his coat or pockets. The defe ndant did not attempt to flee until after Be ck g rabbe d him and started the patdown. Mea sured by

an objec tive standard, B eck ha d no rea son to believe that the de fenda nt
was a rmed a nd dang erous. Thus, we conclude that the trial cour t erre d in denying the defe ndant’s motion to quash and suppre ss. Wi thout the evidence that should have be en suppressed, the State cannot pr ove the de fenda nt's guilt. According ly , we r ever se def endant' s conviction and va cate his sentence . See People v . Kipfer , 356 I ll. App. 3d 132 (2005). ¶ 17 CONCLUSI ON ¶ 18 The judg ment of the c ircuit court of Peoria County

is rever sed. ¶ 19 Reverse d.

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