## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Surles , 2011 IL App (1st) 100068

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. DARREL LSURL ES, Defe ndant-Appe llant.

District & N o. First District, Third Division Docke t No. 1-10-0068

Filed Rehea ringdenied Dec ember 21, 2011
Februar y 24, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rter of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appe al from de fenda nt’s conviction for violating the ar med habitual criminal statute, the appellate court held that the trial court err ed in denying his motion to suppress the wea pon discovere d on his person afte r the car in which he was riding was s t o p p ed for failing to come to a complete stop at a stop sign and the occupa nts of the car wer e handcuf fed and subjected to pat-down sear ches, since defe ndant was un d er arr est befor e he w as sea

rche d, his free dom of movement wa s restricte d by the handcuf fs and the show of authority of the six office rs and three squad

car s prese nt at the scene of the stop, the mood of the encounte r was akin
to an arrest, but no probable cause exis ted for defe n d an t ’s arr est wher e the arresting officer was not familiar with def endant, de fenda

nt w as not acting as if he had done any thing illega l, defe ndant was only a passeng er in a vehicle whose driver failed to make a complete stop, and wher e there

was no basis to sear ch defe ndant, the revolve r was not subject to the inevitable discove ry

exception to the exclusi onary rule.

Dec ision Under Review Appea l from the Circuit Court of C o o k County
, No. 08-CR-10139; the Hon. J ohn A. Wasilewski, J udg e, pre siding.J udgment Reverse d.

Counsel on Appea l Michae l J

. Pelletier, Patricia Unsinn, and Christopher Kopaz, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (James E. Fitzge rald and Samuel Shim, Assi stant State’s Attorney s, of counse l), for thePeople.

Panel J USTI CE SAL ONE de livered the judgme nt of the cour t, with opinion. Presiding Justice Steele conc urre d in the judgme nt and opinion.
J ustice Murphy

specia lly concur red, w ith opinion.

OP INION

¶ 1 Following a benc h trial, defe ndant Darrell S urles was found guilty of multiple charg es surrounding his possession of a revolve r. The trial court merg ed its finding s into a single

co n v i ct i o n for violating the arme d habitual criminal statute (720 I L CS 5/24-1.7 (West 2008)), predic ated on two of defe ndant’s prior convictions for unlawful use of a wea pon by

a felon and ag grava

ted unlawful use of a wea

pon by a felon. Def

endant filed a timely motion for a new trial, which was denied. On appea l, defe ndant contends that the trial court err ed in denying his motion to suppress wher e: (1) he was place d under arr est without probable cause when he was handcuf

fed; or alterna

tively
, (2) he was subjected to an unlawful Terry stop and frisk beca use the office r had no rea sonable articula ble suspicion that defe ndant was arme d. For the following rea sons, we reve rse defe ndant’s conviction and rem an d t he matter for a new tria l, with instructions.

¶ 2 BA CKGROUND ¶ 3 Prior to trial defe ndant moved fo r t h e re v o l v er re co v er ed fr o m his person to be suppressed beca

use it was obtained as the result of an illega l se arc h. During the hearing on defe ndant’s motion, Chicag o police office rs M cGr ew and Solana testified as to their
encounte r with defe ndant on May 6, 2008. ¶ 4 Offic er McGre w s t at ed that he was on duty with his partne r in a marke d squad car on May 6, 2008, at approximately 6:40 p.m., when his partne r, Offic er J esse, curbed a l at emodel four- door sedan for failing to stop at a stop sign near 407 West 57th S t re et, in Chicag o. The office rs approa ched the vehicle, which was occupie d by three males who wer e described as all being in their twenties. Shortly afte r the vehicle was curbe d, four additional office rs, including Offic er Solana, arr i v ed on the scene to assist with the stop. Offic er McGre w testified that the are a was a high- crime are a and that there had been an incre ase in

-2-shootings in the prec eding month due to a dispute between fac tions of a local street g ang

. He

approa ched the vehicle from the passeng er side, while his partne r simult ane o u s ly a pp ro ache d from the driver side. McGrew could not rec all whether his wea pon was drawn, but he believed that he had his hand on it as he approa ched thevehicle. ¶ 5 Def

endant was in the front passeng er seat of the vehicle and rema ined there while Off icer J es s e questioned the driver. Offic er J esse asked the driver to exit the vehicle afte r he was unable to produce a valid dri v er ’s license. At that point the driver was placed under arrest and the office rs decide d to inventory the vehicle. As a result, defe ndant and the other
passeng er w ere order ed out of the c ar. ¶ 6 Offic er Mc Gre w testified that he place d the re ar pa sseng er in ha ndcuff s for McGrew ’s

own persona l safe ty and passed him to Offic er Solana for a protec tive pat-down sear ch. He then order ed defe ndant out of the vehicle and handcuf fed him behind his back befor e passing defe ndant to Of

fi cer Solana. Offic er McGre w stated that he did not have a clea r view of defe ndant ’s fr ont befor e he handcuf fed him beca

use defe ndant exit ed the vehicle with his back toward him. He stated that he did not see the handgun befor e he handcuf fed defe ndant and that any

wher e from 90 seconds to 4 minutes passed from the time the vehicle was stopped until the revolver was re covered. ¶ 7 At the time that he handcuf fed defe ndant, Offic er McGre w testified that there was a total of six office rs on the scene , including himself, and that the other two occupa nts of the vehicle

wer e alre ady handcuf

fed. Acc ording to Offic er McGre w, “[u] ntil we figure out what’s g oing

on we put him in handcuf fs.” Of fi ce r M cGrew went on to state that due to the repor ted incre ase in violence in the are a he felt a heightened level of conce rn for his safe ty with ever y traff ic stop in that area

. ¶ 8 He stated that other than the g ang violence in the are a, defe ndant g ave him no rea son to believe that defe ndant would har m him prior to placinghim in handcuffs. H e “wa nt[ ed] to play ever yone safe .” He was not familiar with the vehicle nor its occupa nts before the traff

ic stop on May 6, 2008. When they curbe d the vehicle, he did not have a sear ch war rant for the vehicle nor any arr est war rants for the occupa

nts of the vehicle. In addition, he stated that he did not observe either of the passeng ers do i n g any thing illega l, improper, or threatening
, befor e he ha

ndcuff ed them. ¶ 9 Offic er Solana also testified to the events surrounding d ef en d an t ’s arre s t

. He was positioned at the rea

r passeng er side of the vehicle while Offic ers McGre w and J esse conducte d the traff

ic stop. On ce d efe ndant stepped out of the vehicle Offic er McGre w handcuf fed him, he ld his a

rm, and walked him to Offic er Solana. Offic er Solana described observing a “slight bulg e” tha t he appr ox imated to be two or thre e inches long on the right side of def

endant’ s waistband under his shirt. Upon perf ormingthe pat down of

defe ndant h e fe l t t h at the object was hard and believed it was a wea pon. Offic er Solana then lif t ed defe ndant’s shirt and obse rved it wa s a small revolve r. ¶ 10 Def

ense counsel questioned Offic er Solana reg arding his ba sis f or the pat-down se arc h and the f ollowing c olloquy

occur red: “Q. At the point that Offic er McGre w handed him off to you, did you fee l in dang er from Mr. Surles?

-3-A. W e don’t know who these people are

. We do pro t ec tive pat downs on basica lly

ever y body

. We don’t know if he’s g ot a wea pon or not. L ike I said, I saw the b u l ge. I believe it to be a

wea pon so. Q. Do you consider this a da ng erous a rea ?
A. It was an e x tremely

dang erous a

rea at the time. It was shootings e very day

. * * * Q. Apart from thi s l u mp o r bulge you saw at the waistband of Mr. Surles any thing else; wa s his conduct any thing that would makeyou nervous or afr aid?
A. No.” ¶ 11 Offic er Solana further testified that he decide d on his own to do the pat down sear ch once he sawthe bulg e in def

endant’ s pants. Once he saw the bul g e in defe ndant’s waistband he felt afrai d fo r h i s s afety beca use he thought that it could be a gun, based on all of the sh o otings in the area. The trial court then questi oned Officer Solana reg arding the amount of light at the time of the sear ch, and he stated that he had no difficulty seeing
, beca use the sun was just startingto go down. ¶ 12 Following argument, the trial court conclude d that the essential issue to be resolved w as whether the handcuf

fing of defe ndant was premature. The trial court found that the are a was

a war -like zone and likened it to Afghanistan or Iraq, befor e concluding that the handcuf fing of defe ndant was inconseque ntial be cause the officers would have disc overe d the handgun in defe ndant’s waistband during the pat down sear ch without him being handcuf fed. On this basis, the trial cour

t denied def

endant’ s motion t o suppress. ¶ 13 There afte r, defe ndant waived his right to a jury trial and proce eded in a stipulated bench trial with the State admittin g t h e office rs’ testimony from the motion to suppress into evidenc e along with a cer tified copy of defe ndan t’s criminal rec ord, which included prior convictions for unlawful use of a wea pon by a felon and ag gravated unlawful use o f a

wea pon. The trial court found defe ndant guilty on all counts and merg ed the convictions to the sing le count of armed ha bitual criminal. Def

endant wa s then sentenc ed to seve n year s’ imprisonment. Def

endant filed a motion for a n ew trial which did not ref ere nce the trial court’s de nial of the motion to suppress as a c laim of error.

¶ 14 DI SCUS SI ON ¶ 15 On appea l, defe ndant contends that the trial court err ed in denying his motion to suppress evidenc e, wher e: (1) he was place d under arr est witho ut probable cause when he was handcuf fed; or alternatively
, (2) he was subjected to an unlawful Terry stop and frisk beca use the offic er had no rea sonable suspi cion that defendant was arme d. The State re sponds that defe ndant forf

eited this argument by failing to include it in his posttrial motion and that the office rs’ conduct was lawful based on their safe ty conce rns. Def endant replies that the issue should be revie wed f

or plain er

ror.

¶ 16 Forfeiture and Plain Error ¶ 17 Initially
, we note that the State is corr ect that defe ndant failed to include this issue in his

-4-posttrial motion. That does not end our analy sis, howeve r, wher e defe ndant claims that plain

erro r o cc urr ed

. People v. Herron
, 215 I ll. 2d 167, 186-87 (2005). The plain-error doctrine allows a revie wing court to by pass normal forf

eiture principles and cons i d er unprese rved

err ors wher e the evidence is closely balanc ed, re g ardle ss of the seriousness of the er ror, or wher e the err or was serious, reg ardle ss of the closene ss of the evidenc e. Herron
, 215 I ll. 2d
at 187. Def

en d ant claims that the seriousness of the err or and not the closene ss of the evidenc e wa

rra nts plain-err or re view. We agree

. ¶ 18 Where, as h er e, d ef en d an t fa i l ed t o properly prese rve an issue of his substantial constitutional rights for revie w, plain-er ror analy sis is applicable

. People v. Starnes
, 273 I ll. App. 3d 476, 481 (1995). Given that defen d ant’s constitutional rights ag ainst sear ch and seizure are at issue, we find it proper to subject the trial court’s deter mination to plain-er

ror revie w. Starnes
, 273 I ll. App. 3d at 481. We now addre ss defe nda nt’ s s u b stantive contentions of er ror.

¶ 19 Type of Police- Citi zen Encounte r ¶ 20 We first addre ss defe ndant’s conte ntion that the trial court er red in de nying his motion
to suppress wher e he was unlawfully arrested when Offic er McGrew pl aced him in handcuf fs. We revie w the denia l of a motion to suppress with def ere nce to the trial court’s finding s of fac t, but the ultimate leg al conclusion de novo

. People v. Lopez
, 229 I ll. 2d 322, 345 (2008). Here, d ef

en d ant does not contend that the trial court’s finding s of fac t wer e

err oneous, and instea d claims that the trial cour t erre d in rea chingits lega l conclusion. ¶ 21 This court has rec ognized three separ ate ty pes of police-c itiz en encounters, which are : (1) consensua l e ncounter s, involving no detention and there fore not implicating a citizen’s fourth amendment rights; (2) brief investigatory stops, ref err ed to as Terry stops, which must be supported by a rea sonable, ar ti c ulable suspicion of criminal activity ; and (3) arr ests, which
must be supported by probable cause

. People v. Vazquez
, 388 I ll. App. 3d 532, 546-47 (2009) (citing People v. Luedemann
, 222 I ll. 2d 530, 544 (2 0 06)). We find that defe ndant’s
encounte r with the police was not a consensua l encounte r, wher e defe ndant was not seeking the assistance of the off

icer s. Vazquez , 388 I ll. App 3d at 547. ¶ 22 Thus, we must deter mine whether defe ndant’s encounte r was a Terry stop, or an arr est, and whether the office rs’ conduct was appropriate under either situation. Given that the standard for placing a citizen under arr est require s a str o n ger b as i s, we beg in our analy sis

w ith whether defe ndant was place d under arr est, for purposes of his fourth amendment rig hts , befor e he w as sea

rche d by Offic er Solana

. ¶ 23 The United States and I llinois C o n s t i tutions prohibit the g overnme nt from subjec ting citizens to unre as onable sear ches and seizures. U.S. Const., Amends. IV, XIV; I ll. Const. 1970, art. I
, § 6; Lopez
, 229 I ll. 2d at 345. A person i s seized in constitutional terms when he is place d under arr est. Lopez
, 229 I ll. 2d at 346. An arr est occur s when a person’ s fre edom of movement is restra ined by phy sical forc e or a show of authority

. Vazquez
, 388 I ll. App 3d
at 549. We deter

mine whether a person is under arr est based on whether an objective

rea sonable person, innocent of any crime, would conclude that he is not fre e to leave under the circ umstances. Lopez , 229 I ll. 2d at 346.

-5-¶ 24 This court has rec ognized that there is no bright-line test for deter mining wh et h er an encounte r is a Terry s t o p o r an arr est. Vazquez
, 388 I ll. App 3d at 549. Instead, sever al fac tors have been analy

zed, including, but not limit ed to: ( 1) the time, place
, length, mood, and mode of the encounte r; (2) the number of office rs prese nt; (3) use of handcuf fs, wea pons,

or other formal restra int; (4) the intent of the officers; (5) whether the defe ndant was told he could ref use to cooper ate or that he was fre e to leave ; (6) whether defe ndant was transporte d by the police; and (7) whether defe ndant was told he was under arr est. Vazquez
, 388 I ll. App 3d at 549. ¶ 25 Her e, the evidenc e s h o ws th at d ef en d an t was an occupa

nt in a vehicle stopped for a traff ic violation. The encounte r betwee n defe ndant and the police last ed less than five minutes, in the evening on a publi c stree t, and def endant wa s not told he was under arrest. All of this weighs ag ainst finding that defe n d an t was place d under arr est before he was

sear ched. ¶ 26 The bulk of the evidenc e, howeve r, weighs in favor of finding that defe ndant was under

arr est befor e he was sear ched. Specific al l y , Offic er McGre w testified that he approa ched defe ndant’s side of the vehicle, either with his firea rm drawn or with his hand on his firea rm. He also stated that there wer e six office rs, from three separ ate squad car s, prese nt at the time. I n ad dition, defe ndant was not asked any questions by Offic er McGrew, but inst ea d wa s g iven instructions to step o u t o f t h e vehicle and immediately handcuf fed behind his back. Def endant was not told that he could leave or ref use to cooper ate, nor was he rele ased afte r he was handcuf

fed. Instead, he was handed from Offic er M cG re w t o Offic er Solana, who then searched defe ndant’s person. Thus, de fenda nt’s fre edom of moveme nt was restric ted, both by phy sical re straints and the off icer s’ show of a

uthority

. ¶ 27 We find that Offic er McGre w approa ching defe ndant with his wea pon drawn or his ha

nd

on his weap o n m ad e the mood of the encounte r more like an arr est. Fur ther, the fac t that defe ndant was ordered out of the vehicle while the office r had his ha nd on his f

irea rm, and without any

conver sation, also would make a rea sonable pe rson fe el re strained. More over, the fac t th at d ef

endant was outnumbered by police officers, and the other occupa nts wer e alre ady restra ined, would decrease a rea sonable person’ s fee ling of fre edom

. Af t er all of these things occur

red, Offic er McGre w place d defe ndant in handcuf fs and kept hold of him until he was passed to Offic er Solana. T hu s, from the time defe ndant was place d in handcuf fs, he was not fre e to move on his own. Given the show of forc e and authority by the office rs and defe ndant’s restra int, we conclude that defe ndant was arrested from the time he was ha ndcuff ed by Offic er Mc Gre w. ¶ 28 Having found that defe ndant was place d under arrest when he was handcuf fed by Offic er McGre w, we must now deter mine whether Offic er McGre w had probable cau s e to arr est defe ndant, such that the subsequent sear ch was lawful. As noted above, a war rantless arr est is unlawful absent probable cause

. People v. Robinson
, 167 I ll. 2d 397, 405 (1995). Probable

cause to arr est exis ts wher e the fac ts known to the office r at the time would lead a rea sonable
person standing in his shoes to conclude that a crime has been committed and that defe ndant committed that crime. People v. Jack son , 391 I ll. App. 3d 11, 36 (2009); People v. Lee
, 214 I ll. 2d 476, 489 (2005). The standard for deter mining whether probable cause exis ts rests on the proba bility that a crime was c ommitt ed, which r equire s additional proof whe re the re is

-6-a question of whether any crime had been committed, in addition to the question of whether

defe ndant committed the potential crime. Lee , 214 I ll. 2d at 484. ¶ 29 Turning to the fac ts that wer e known to Of fi ce r M cG re w at the time that he ar rested defe ndant, we find that no probable cause exis ted for the arr est. Offic er McGre w t es tified that he was not famil i ar with defe ndant, nor was defenda nt acting in a way that led hi m to b el ieve defe ndant had done any thing illega l. The only information that Offic er McGrew knew that was specific to defe ndant was that he was the passeng er in a vehicle whose driver failed to make a complete stop at a stop sign. This a lone is insufficient to w arrant an arr est beca use there was no indication that defe ndant, a passeng er in the veh i cl e, had committed

or was about to commit any crime. By all acc ounts defe ndant obeyed the office rs’ instructions and his conduct was otherwise unrema rkable

. Moreove r, both Offic er McGre w and Offic er S o l an a t es t ified that nothing specific to defe ndant cause d either of them to believe that defe ndant took part in any criminal activity

. Thus, the rec ord befor e us is devoid of any evidenc e of criminal activity on the part of defe ndant prior to his arr est. Absent such evidenc e, we must there fore conclude that Offic er McGre w lacke d probable cause to arr est defe ndant. Lee , 214 I ll. 2d at 485-86. ¶ 30 Whether evidenc e rec overe d sub s equ en t t o an un lawful arr est should be excluded, howeve r, prese nts a separ ate question. To answe r that question, we must decide whether the exclusionary

rule is applica

ble under these fa cts.

¶ 31 Exc lusionary Rule and Terry Stop ¶ 32 The e x clusionary rule allows courts to pr event e vidence from beingused at trial whic h

was g ather ed by police in violation of a defen d an t ’s fo urth amendment rights. People v. Sutherland
, 223 I ll. 2d 187, 227 (2006). This rule has an exception wher e the evidenc e would have inevitably been discovere d without the police violation. Sutherland
, 223 I ll. 2d at 227- 28. Her e, the trial court found that defe ndant was subject to a Terry stop and frisk reg ardle ss of whether he was handcuf fed, such that the office r’s rec overy of the revolve r was inevitable. For the rea sons that follow, we disagree and instead hold that the evidenc e ag ainst defe ndant should have been excluded beca use he could not have been properly subjected to a Terry stop and frisk at any

point during his enc ounter with the police

. ¶ 33 First, we must deter mine whether defe ndant cou l d l aw fu l l y be searched as a part of a Terrystop, such that he could have been subjected t o a pat-down sear ch. A Terrystop is a

rec ognized exception to the probable cause require ment of the fourth amen dm en t , which all ows for an office r to detain a citizen wher e the office r has a rea sonable articula b l e suspicion that a crime has bee n or i s about t o be commit ted. Terry v. Ohio
, 392 U.S. 1, 22 (1968) (codifie d in the I llinois Code of Criminal Procedur e of 1963 a s 725 IL CS 5/107-14 (West 2008) ). Such a stop must, at its inception, be based on spe cific a nd articula

ble fac ts, which the office r can point to as a rea sonable basis for such an intrusion. People v. Thomas
, 198 I ll. 2d 103, 109 (2001). In this case , defe ndant does not contend that the office rs lacke d

rea sonable suspicion to detain the driver. Rather, defe ndant contends that he should not have been subjected to a protec tive pat-down sear ch. Thus, our analy sis beg ins with his encounte r with the police af

ter the ve hicle wa s stopped.

-7-¶ 34 We first conclude that neither defe ndant’s prese nce in the vehicle which committed the

minor traff

ic infrac tion nor his association with the driver who opera ted the vehicle without

a license is sufficie nt to war rant a Terry pat-down search. See, e.g. , Lee
, 214 I ll. 2d at 485-86 (holding that neither de fenda nt’s prese nce in a

cer tain are a nor his assoc iation w ith c erta in people was a crime, such that a stop on that basis alone was insufficient). Having so found,
we now tur

n to the basis for de fenda nt’s pat-down se arc h. ¶ 35 A police office r may perf orm a protec tive pat-down sear ch wher e, afte r making a lawful stop, the office r has a rea sonable articula ble suspicion that he or another is in dang er of attack beca

use the defenda

nt is arme d and dange rous. People v . Sorenson , 196 I ll. 2d 425, 432 (2001); 725 I L CS 5/108-1.01 (West 2008). Such a sear ch is not for the purp o s e of discovering evidenc e, but must be limit ed to a sear ch for wea pons. Adams v. W

illiams
, 407 U.S. 143, 146 (1972); People v. Davis
, 352 I ll. App. 3d 576, 580 (2004). Thus, we mu s t deter mine whether the evidenc e known to the office rs was sufficie nt to cre ate a rea sonable suspicion that defe ndant was arme d and dang erous, such that a pat-down sear ch was

war rante d. For the rea sons that follow, we find that it was not and acc ording ly reje ct the trial court’s conclusion that the revolve r wa s n o t subject to the exclusionary rule based on inevitable discove ry

. ¶ 36 As noted above
, the i nformation available to the officers at the t ime was that a vehic le had failed to stop at a stop sign a nd its operator could not produce a valid driver’ s license. The State relies heavily on the fac t that the stop occur red in a high- crime are a, as a basis for the pat-down sear ch. We find this argument unpersua sive. Instead we are guided by the principles articulated by our supreme court in Lee
, wher ein the court stated, “the fac t, by itself, that the office rs found defe ndant in a cer tain are a, without any overt act by defe ndant, does not establish probable cause for wa rra ntless arre st.” Lee , 214 I ll. 2d at 486. ¶ 37 Whil e we rec ognize that the holding in Leewas spec ific to probable cause , we find the

rea soning to be appropriate here
, wher e both the probable cause analy sis and the Terry analy sis require t h e court to view the circ umstances as an objectively rea sonable person, knowingthe fa cts known to the off icer at the ti me of the stop. J ust as the supreme court in Lee found that a rea sonable person would not have conclude d that a crime was about to occur

or had just o cc urr ed b as ed solely on a person’ s mere prese nce in a high- crime are a, we further find that a re as o n ab l e person would not consider a person arme d and dang erous

mere ly beca

use he was a passeng er in a vehicle trave ling through a high- crime are a. Instead,

we hold that the basis for a pat-down sear ch must be the dang er that the spec ific def endant
prese nts under the circ umstances and not g ener alized con ce rns about the are a wher e the defe ndant is eng ag ed in a nonc onsensual police e ncounter

. ¶ 38 The fourth amendment protec ts eac h citizen ag ainst unwar rante d searches and seizures, thus any intrusion into that protec tion must be war rante d based on information specific to the citizen ag ainst whom the intrusion is made. To conclude otherwise, as the State sug g ests, would be to limit a private citizen’s constitutional rights based on the neighborhood he or she happens to be in when the intrusion occur s. Such a standard would vitiate t h e fo urth amendment by limit ing its protec ti o ns based on a locale, instead of the circ umstances

s u r ro u nding a private citizen. Moreove r, the potential for abuse is appar ent, wher e all citizens who reside in, or work, or trave l through, visit, provide service s for, or patronize businesses

-8-in a high- crime are a for any number of lawful rea sons would be subjected to such intrusions.

There fore , we r ejec t the State’s position that the conduct of these office rs was la wful. ¶ 39 This court has rec ently re j ec t ed t h e ar gument that testimony reg arding a def endant’ s prese nce in a “high-crime are a” is a leg ally sufficie nt basis for perf orming a Terry stop and fr i sk. People v. Harris
, 2011 I L App (1st) 103382, ¶¶ 14-15. We join our b re t h re n i n reje cting such conclusory and self-se rving statements, beca use they a r e o v e r b ro ad a n d la rg ely irrele vant, without some specific fac ts known to the police that tie defe ndant to the crime in the ar ea. ¶ 40 Her e, there was no such evidenc e. Neither office r t es t i fi ed t o knowing any thing a bout defe ndant other than that he was an occupa nt in the vehicle. Indeed, by their own testimony
, his conduct did not cre ate any fea r or threat of violence ag ainst them. In fac t, the testimony that they “do a protec tive pat down sear ch on basica lly ever y body” evince s the routine nature of their arresting and searching private citizens without any indication that the citizen poses

a threat to anyone and without a ny articula

ble suspicion of criminal activity

. The mere fac t that he was prese nt in a vehicle, which was trave ling o n a thoroughfar e is insufficient to

war rant such an in

tr u s io n in to h is c onstitut ional protec tions. Fur ther, this court has repe atedly reje cted claims
, as made by the State, that Offic er Solana’s observation of the bulge in defe ndant’s waistband is an independe nt basis for the pat-down sear ch, holding th at the
prese nce of a bulge in defe ndant’s clothing alone is in sufficie nt to war rant a sear ch. People v. Goodum , 356 I ll. App. 3d 1081, 1085 (2005); Harris
, 2011 I L App (1st) 103382, ¶ 17. ¶ 41 Having conclude d that neither defe ndant’s prese nce in the high- crime are a nor the bulge alone was sufficie nt to justify a pat-down sear ch, we m u s t al so conclude that these two toge ther are also insufficient, beca use “[w]hen you add nothing to nothing, you g et nothing.” (Interna l quotation marks omi t t ed

. ) L ee , 214 I ll. 2d at 486 (quoting City of Chicago v. Y oukhana
, 277 I ll. App. 3d 101, 114 (1995))

. Thus, we conclude that there was no lawful basis to sear ch defe ndant, and as a result, the revolve r is not subject to t h e i n evitable discovery exception to the exclusionary rule. Our ruling is no more i n t en d ed to handcuf f lawful police activity than endorse the unlawful handcuf f ing o f p riv a

te citizens. Acc ording ly
, we f ind that the revolve r and a ny mention thereof

should have be en excluded. ¶ 42 We need not consider wh et h er double jeopar dy would attach and the State could re try defe ndant, b ec au se our order requiring the s uppression of the revolver and its taking from defe ndant’s possession would “destroy any o p p o rt un ity for the State to preva il on a new trial.” People v. Morgan , 138 I ll. App. 3d 99, 102 (1985); see also People v. Holliday
, 318 I ll. App. 3d 106, 113 (2001). Acc ording ly
, we reve rse de fenda nt’s conviction for violating the ar med habitual criminal statute.

¶ 43 CONCLUSI ON ¶ 44 For the fore g oing rea sons, the judgme nt of the circ uit court of Cook County is rever sed.

¶ 45 Reverse d.

-9-¶ 46 J USTI CE MURPHY, specially concur ring : ¶ 47 I concur in the court’s decision, but write separ ately to emphasize that our holding should
not be interpre ted in such a way as to endang er the saf et y o f l aw enfor ceme nt office rs. In setting forth the standard under which the validity of a Terry stop is to be analy z ed, the Supreme Court considere d the need of police office rs to protec t themselves an d other
prospec tive victims fr om violenc e and noted that “it would be unr easona ble to r equire that police office rs take unnece ssary risks in the perf ormanc e of their duties.” Terry v. Ohio
, 392 U.S. 1, 23-24 (1968). In light of that concern, an officer is permitted to perf orm a protec tive pat down sear ch of an individual following a lawful stop wher e the office r has a rea sonable articula ble suspicion that e ither the off icer or another person is in dang er of attack beca use the individual is arme d and dang erous. People v. Sorenson
, 196 I ll. 2d 425, 432-33 (2001); 725 I L CS 5/ 108-1.01 (West 2008). ¶ 48 Whil e I agree with the majority that such a rea sonable articula ble suspicion is lacking in this case , I wish to rea ffirm the principle that it is unrea sonable to require a police office r to take unnece ssary risks in the perf ormanc e of his duties. In addit i o n , I would like to emphasize that this holding sh o u l d n o t b e interpre ted in such a way as to have a chilling eff ect on the use of pat-down sear ches by law enfor ceme nt office rs to ensure their safe ty or that of anothe r per son when ne cessa ry

. ¶ 49 The evidenc e prese nted must show that the office r had a rea sonable articula ble suspicion that either the office r or a nother pe rson is in dang er of attack.

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