No. 2--06--0204 Filed 2/20/07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Du Pa ge Co un ty. ) Plaintiff -Appella nt, )

) v. ) No. 05--CF--2601 ) JOR GE L. MEN DEZ, ) Honorab le ) Perry R. Thompson, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BYRNE de livered

the opinion of the c ourt: Defend ant, Jorge L. Mendez, was charg ed with unlawful possession of a firearm by

a felon ( 720 IL CS 5/24 --1.1 (a) (W est 20 04)) an d poss essio n of a fi rearm w itho ut a fi rearm o wner's ide ntificationcard (430 ILCS 65/2(a)(1), 14(c)(3) (West 2004)). Defenda nt moved to quash hi s arrest and suppress evidence. The trial court granted his motion. The State appeals, arg uing that the police effected a proper investig atory stop. We rever se and remand. Officer Petersontestifie d at the su ppression hearin

g. Pete rson had b een a po lice off icer wit h West Chicago for two y

ears. According

to Peterson, at

approximately 3 a.m. on September 4, 2005, he was in the 400 block

of Joliet Str

eet in West

Chicag o. He wa s standing outside hi s patrol car , investigat ing a vehicle that had been burglar ized. It was calm outside and there wa s no noise or vehicular traffic. Peterson heard what he belie ved to be g

unshots coming from the west about 300No. 2--06--0204

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to 400 yards away. H e immediately g ot into his squad car, headed north on Joliet Street, and approached

AnnStreet. Peterson intended to turn onto Ann Street heading west, as that street was the only nearby street that provid

ed acce ss to the we st side of t own. As he

approac hed Ann Str

eet, Petersonobserved a vehicle approaching the intersection from

the west. Approximat

ely five to six seconds had

elapsed since he got into his vehicle, and he had traveled less than 100 y ards, when he met the other vehicle at the inte

rsection . The ca

r was movi

ng at a " normal" rateof spe ed. The officer observe d three i

ndividual s in the ve

hicle an d made dir

ect ey e contac t with the driver. The driver had an expression of shock on his face, with ey

es widened and

jaw clenched. Peterson turned his vehicle around and initiated an investigatory stop. D efendant

was in the front passenger seat of the vehic le. As the officer approached the vehicle, he observed

a baseball bat near the center c onsole of the car. Peterson scanned the outside of the vehicle with his flashlight and observed two spent shell casings, one where the hood met the window, and another on the trunk lid. Peterson believed that this car was directly related to the gun shots. Petersoninstructed the oc cupants to exit the vehicle. A cursory se arch performed on defendant revealed no w eapons. The officer searched the inside of the ve hicle but found no weapons . H ow ever, after all the occupants wer e out of the vehicle, Peterson conducted an investigation and recovered cer tain items of

evidenc e that co

uld be used in a criminal prosecution agains t defend

ant. At the conclusion of the hearing, the trial court g ranted the motion to q

uash arre st and suppress evidence.No. 2--06--0204

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The State move d to reconsider. T he trial courtdenied the motion, noting that there were
s everal other east/west streets in the vicinity . The State filed a certificate of impairment, and i t appeals pursuant to Supreme Court Rule 604(a)(1) (210 I ll. 2d R. 604(a)(1)). Ini ti al ly, we note that defendant did n ot file a brief. However, as the issue can be decided without anappellee's brief, we may decide

the merits of the appeal. First Capitol Mortgage Corp.
v. Talandis

Construction Corp. , 63 Ill. 2 d 128, 133 ( 1976); People v. Ortiz , 317 Ill. App. 3d 212, 219 (2000). We begin o

ur analy sis by address ing the s tandard

of revie w. We acc ord gre at defe

rence t o the trial court' s factua

l finding s and will r

everse those findings on

ly if they are ag ainst the manifest weight of the evidence; however, we re view de novo the ul tima te rul ing. Peoplev. Sorenson , 196 Ill. 2d 425, 431 (2001); People v. Marchel , 348 Ill. App. 3d 78, 79 (2004) . Because there is no chall enge to th e offi cer's version of events, we need determine only whether, as a matter

of law, h is testimony satisfies the requirements for a valid investigatory stop. See People v. Delaware , 314 I ll. App. 3d 363, 367 (2000). The fourth

amendment to the United States Cons titution g

uarante es the " right of

the peopl e to be secure in their persons, houses, papers, and e ffects, against unreasonable search es and seizures." U.S. Const. , amend. I V; So renson , 19 6 Il l. 2d at 432. Stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of the fourth amendment. People
v. Garm an , 123 Ill. App. 3d 682, 684 (1984). "Reasona bleness under the fourth am endmen t gener ally requires a warrant supported by probable caus e." Sorenson , 196 Ill. 2d at 432. However, under the limited exception recognized by the Supreme Court in Terry v. Ohio , 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884 (1968), where a police officer observes unusual conductNo. 2--06--0204

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that leads him reasonably

to conclu de in lig ht of his experienc e that cr iminal activity

may be afoot , the office r may briefly stop the su spicious p erson an d make " reaso nable inquiries" aimed at confirmingor dispelling his suspicions. Marchel , 348 Ill. App. 3d at 80; see also 725 IL CS 5/107-- 14 (West 2004) (codification of Terry , providing that a police officer, after having identified

himself
as such, may lawf

ully stop any

person in a public place for a reasonable per iod of time when he
reasona bly infers from all the circumstances that the individua l is about to commit or has committed an offense). Inor de r to make such an investigatory stop, "the officer must have a reasona ble and articula ble suspicion that the pers on has comm itted, or i s about to c ommit, a cr ime." Marche l, 348 Ill. App. 3d at 80. "The facts need not meet pro bable ca use requ irements , but they

must justify more th ana mere hunch." People v. Ware , 264 Ill. App. 3d 650, 654 (1994). The fac ts support ing th e offic er's suspicion "should be considered from the perspective of a reasonable officer at

the time the situation confronted h im rather th an viewed wit h analytical hinds ight." Ware , 264 Ill. App. 3d a t 654. "[D]ue weight must be given to the spec ific reasonable inferences that the off icer is entitled to draw from t he facts in l ight of his ex perience." Marchel , 348 Ill. App. 3d at 80. There are several fa

ctors that tend

to give rise to grounds for stopping a suspec t soon after
anoffense is committed. People v. Brown , 88 Ill. App. 3d 514, 519 (1980). " 'No litmus paper te st is available to resolv e this issue, but yet it is possible to identify several factors which are appropr iately take n into account in making this judgment. Generally , it may be said that consideration

may proper

ly be g iven to: (1) the particularity of the description of the offender or the vehicle inwhich he fled; (2) the size of the area in which the off ender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of pe rsons about in thatNo. 2--06--0204

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area; (4) the known or probable d irecti on of the offender's flight; (5) observed activity by

the particular person stopped; and (6) knowledge or suspicion that the person or vehiclest opped has been involved in other criminality of the ty pe presently unde

r investigati on.' " Brown , 88 Ill. App. 3d at 519-20, quoting 3 W. LaFave , Search & Seizure §9.3, at 84 (1978). Several Illinois court s have he ld that a p olice of ficer ma y f orm a reasona ble suspicion that
anindividual was involved in a shooting due to his spatial and temporal proximity to the shots fired. For example, in People v. Lee , 48 Ill. 2d 272 (1971), police officer s testified that they wer

e assigned to patrol an area where a

gang war was e

xpected to occur. At approximately 9:30p.m., the officers heard what they believe d to be gunshots. Lee , 48 Ill. 2d at 274. Within two minutes and about two blocks away , the off

icers sa w six people walking. There was no one e lse in the area. Four of the six people were wearing the ty

pe of clothing worn by

one of the gangs that might have been involved. The officers stopped and frisked all six people. The supreme court foundthe stop and search
reasona ble under Terry
. Lee , 48 Ill. 2d at 277. The police office rs had a reasonable suspicion that the group o f peop le wal king i n the a rea of gu nfire was in volv ed in t he sho otin g and ther efore the court upheld the investigatory

stop, including the pat-down search for weapons. Lee , 48 Ill. 2d at 277. Si mi la rl y, in People v. Basiak , 50 Ill. App. 3d 155 (1977), at approximately 2 a.m., an of ficer
onpatrol approached the intersection of Elm and Dea rborn Streets in Chicago. Basiak , 50 Ill. App. 3d at 156. The officer heard a gunshot that appeared to have originated f rom around the corner, on El m Street. Basiak , 50 Ill. App. 3d at 156. The officer drove around the corner and saw the de fe nd an t a nd an ot he r m an st an di ng by a n a ll ey, approxima tely 100 feet west of Dearborn. There
were no other people and no vehicles in the area. The offi cer stop ped and s earche d the def

endant.No. 2--06--0204

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The stop was u

pheld on a

ppeal; t he officer had reasonable suspicion that the individuals wer e involved in the shoo ting, be cause he discover ed those i ndividual s at the site from which the officer heard the shot fired. Basiak , 50 Ill. App. 3d at 158; see also People v. Bujdud , 177 Ill. App. 3d 396 (1988) (police officer had adequate f acts to war

rant an inve stigatory stop, whe re the officer had knowl edge of a nearby

shooting, he observed the defendant' s vehicle proceeding at an excess ive rate of speed away

from the vicinity of the shooting , and he observed no other vehicles on t he roa d; altho ugh the officer had no information that a car was involved in the incident, it was reasonable f or the officer to infer that the suspects would attempt to flee in a ca r). The same conclusion is warranted here. The f acts that provided a reasonable basis for the stop include: (1) Pete

rson hea rd guns hots 300 to 400 yards to the west; (2) on he ading west, he had traveled less thansix seconds

and 100 y

ards whe n he obse rved def endant' s vehicle

driving from the west; (3) it was 3 a.m. (see Brown , 88 Ill. App. 3d at 520 ("police a re justified in making a stop at
anearly morning

hour with a much less comprehensive description of s uspects tha n would be adequa te if the stop were made at midday")) ; (4) there were no other vehicles on the r oad; and (5) the driver exhibited a look of shock whe n he saw the off icer. In acc ordance with the cited authorities , the totality of the circumstanc es supported reasonable suspicion justify ing an investigatory

stop. Thus, we reverse the trial court's order quashing defendant's arr

est and suppressingevidence, and we r emand for furthe

r proce edings. Reversed and remanded. O'MALL EY and CALL

UM, JJ., concur.