## 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 . Harris , 2011 IL App (1st) 103382

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellant, v. DEREK HARRI S, Defe ndant-Appe llee.

District & N o. First District, F ifth Division Docke t No. 1-10-3382

Filed September 2, 2011

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 rt er 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

. ) In a prosec ution for ag g ravated unlawful use of a wea pon, defe ndant’s

m o t i o n to suppress the wea pon discovere d on his person was proper ly
gra n t ed, wher e the office r involved failed to provide specific and articula ble fac ts that wo u l d justify the Terry stop and there was no constitutional basis for the protec tive sear ch per formed.

Dec ision Under Review Appea l from the Circuit C o u rt of Cook County
, No. 10-CR-8569; the Hon. J ames B . L inn, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Anita M. Alvare z, S t at e’s Attorney
, of Chicag o (Alan J

. Spellberg
, Ver onica Calderon Malavia, Yv e tt e L o iz o n , a n d Seb a s ti a

n So to , Assistant State’s Attorney s, of counse l), for the People.

Michae l J

. Pelletier, Alan D. Goldberg
, and R ac h el Moran, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellee.

Panel PRES I DI NG J USTI CE EPSTEI

N delivere d the judgme nt of the court, with opinion.
J ustices Fitzge rald Smit h and Howse concur red in t h e judgme nt and opinion.

OP INION

¶ 1 D e f

e n d a nt Der ek Har

ris was arr ested on April 23, 2010, and was char g ed with ag g ravate d unlawful use of a wea

pon pursuant to sections 24-1.6(a )(1) and (a) (3)( A) of the Criminal Code of 1961 (720 I L CS 5/24-1.6(a) (1), (a) (3)( A) (West 2008)). Def endant moved to quash the arr est and suppress the wea pon rec overe d by the police at the time of the arr est. After initially denying defe ndant’s motion, the trial court, on rec onsideration, grante d the motion
to suppress the wea

pon. The State appea ls that decision pursuant to Supreme Court Rules 604(a) (1) and 606. I ll. S. Ct. R. 604(a) (1) (ef f. J uly 1, 2006); R. 606 (ef f. Mar. 20, 2009). For the re asons stated be low, we a ffirm.

¶ 2 BA CKGROUND ¶ 3 Def

endant was arr ested for ag g ravated unlawful use of a wea pon on April 23, 2010. On J une 18, 2010, defe ndant filed a motion to q uash his arr est and suppress all evidentiar y products of that arr est, including a handgun rec overe d by the police during a protec tive

sear ch. Def

endant argued that his seizure an d ar rest wer e made in violation of the fourth amendment to the United States Constitution. U.S. Const. amend IV. At the August 11, 2010, suppression hear ing, the following evidenc e was adduce d throug h the testimony of Chicag o police off icer Daniel Goon, the only

witness prese nted. ¶ 4 On April 23, 2010, Offic er Goon and his partne r, Offic er Doolin, wer e patrolling in the vicinity of 9126 South Og lesby Avenue
, Chicag o, I llinois
, an are a the State char acte rized as “one of high burg laries an d h i gh robberies.” They wer e in plain clothes and an unmarke d vehicle. At approxim ately 9:30 p.m., Offic er Goon observe d defe ndant and another man walking in his direc tion. The men did not appea r to be committing any crime, nor could the office rs see that th e men wer e arme d. Offic er Doolin beg an to drive toward the two men

-2-who, acc ording to Offic er Goon, then looked in their direc tion and appea red to hide behind

a car

. The office rs g ot out of their vehicle, announce d their office
, and approa ched the men for a fi el d i n terview

. Def endant and his companion then fled toward a near by house, and Offic ers Goon and Doolin g ave chase
, eventua lly stopping the men on a porch. The office rs perf o rm ed a p rot ective pat down sear ch of the men, during which Offic er Doolin felt an object on defe ndant that he believed to be a wea pon. Def endant told Offic er Doolin that the object was a gun. Offic er Doolin then rec overe d a .22-ca liber handgun from defe ndant and place d him and his companion under a rre st. ¶ 5 Af

t er h ea ri ng this evidenc e, the trial court denied defe ndant’s motion to quas h an d
suppress. The court found that Offic er Goon’s testimony was cre dible and defe ndant’s flig ht from the police was “[t] he compelling thing” justifying the brief investigatory stop, despite the fac t that G oon “may not be able to articulate what was g oing on, except that Mr. Har ris

was try i n g v ery hard to g et awa

y from the police.” On rec onsideration, howeve r, the trial
court vacated its prior ruling and suppressed the wea pon in light of Illinois v. W ardlow
, 528 U.S. 119 (2000), finding that defe n d an t ’s conduct was “neutr al.” The State appea ls, contending that the stop and sear ch of defe ndant wer e justified beca use he attempted to evade the police in a high crime are a. Def endant responds that the stop was unjustified beca use the police lacke d rea sonable suspicion that a crime was being comm itted, and the sear ch was unjustified beca

use the police had no rea son to believe defe ndant was arme d and dang erous.

¶ 6 ANALYSI S ¶ 7 The standard of revie w for evaluating a t ri al court’s decision on a motion to suppress evidenc e rec overe d during a war rantless “stop and frisk” is well established and uncontested.
“Ge nera lly
, a trial court’s decision on a mot ion to supp re s s ev i d ence is subject
to reve rsal only if it is clea rly or manifestly err oneous. [C itation.] This te st is based

on the understanding that suppression motions usually raise mix ed questions of law and fac t: a court first weighs the evidenc e and de termines the fac ts sur rounding the complained- of conduct, afte r which it decide s whether
, as a matter of law, these fac ts constitute unconstitutional seizure.” People v. Thomas
, 198 I ll. 2d 103, 108 (2001).
T h e t ri al court’s application of law is revie wed de novo

. People v. F.J.
, 315 I ll. App. 3 d 1053, 1056 (2000). ¶ 8 In this case, we are prese nted with two questions: (1) whethe r the investig atory stop of defe ndant was justified, and (2) whether the p ro t ec t i v e sear ch of defe ndant was justified. These a re distinct but related inquiries. “The fac t that a police office r has rea son to stop a n individual d oes not nece ssarily mean that the additional intrusion of a sear ch for wea pons will also be war

rante d.” Id . at 1055. We will address e ach issue in turn.

¶ 9 I . The Investig atory Stop ¶ 10 The fourth amendment to the United States Constit u t i o n gu ar an t ee s the “right of the people to be secur e in their persons, houses, paper s, and eff ects, ag ainst unrea s onable

sear ches and seizures.” U.S. Const., amend. IV. “This provision applies to all seizures of the

-3-person, including seizures that involve only a brief detention short of traditional arr est.”

Thomas
, 198 I ll. 2d at 108. “Rea sonablene ss under the fourth amendment g ener ally require s

a war rant supported by probable cause .” Id

. In the seminal case of Terry v. Ohio , howeve r, the Supreme Court rec ognized a limit ed ex ception to the probable cause require ment, allowing police office rs, under appropr iate circ umstances, to briefly stop a person for temporar y questioning wher e the office r rea sonably believes that the person has committed

or is about to commit a crime. Terry v. Ohio
, 392 U.S. 1, 22 (1968). The Terry standard has since been codified in the I llinois Code of Criminal Procedur e of 1963 (C o d e) (7 2 5 I L CS 5/100-1 et seq . (West 2008)), which states, in releva nt part: “Te mporary Questioning without Arre st. A peac e office r, afte r having identified himself as a peac e office r, may stop any person in a public place fo r a re asonable period of time when the office r rea sonably infers from the circ umstances that the
person is committing, is about to commit or has committed an offe nse as define d in Section 102-15 of th i s C o d e, and may demand the name and addre ss of the person and an e x planation of his ac tions.” 725 I L CS 5/ 107-14 (West 2008).
We note that “[t] he same standard is applied in deter mining the propriety of an investigatory stop under artic l e I
, s ec t i o n 6, of the I llinois Constitution (I ll. Const. 1970, art. I
, § 6).” Thomas
, 198 I ll. 2d at 109. The protec tion ag ainst unrea sonable sear ch and seizure under the I llinois Constitution is m ea s u re d by the same standard used to define the protec tions contained in t h e fourth amendment to the United States Constitution. Id

. (citing People v. Tisl er , 103 I ll. 2d 226, 241-45 (1984)). ¶ 11 Under the Terry exception, the police may conduct a brief investiga tory stop “whe n the office r has a rea sonable, articula ble suspicion that criminal activity is afoot.” W ardlow
, 528 U.S. at 123. The police office r “must be able to point to specific and articula ble fac ts which, taken toge ther with ration al i n ference s there from, rea sonably war rant that intrusion.” Thomas
, 198 I ll. 2d at 10 9

. Fu rt h er , “[t] he conduct constituting t he st op under Terry must have be en justified at its inception.” Id

. “While ‘re asonable suspicion’ is a less demanding standard than probable cause and require s a showing considera bly less than preponde ranc e of the evidenc e, the Four th Amendment require s at least a minimal level of objective justification for making the stop. [C itation.] The office r must be able to articu l at e more than an ‘inchoate and
unp ar ticularized suspicion or “hunch” ’ of criminal activity

. [C itation.] ” W ardlow
, 528 U.S. at 123-24. The underlying fac ts are viewed “fr om the perspe ctive of a rea sonable office r at the time that the s ituation confr onted hi m o r h er .” Thomas
, 198 I ll. 2d at 110. Courts must “be mindful that the decision to make an investigatory stop is a prac tical one based on the totality of the circ umstances.” In re S.V. , 326 I ll. App. 3d 678, 683 (2001). ¶ 12 The State argues that the police wer e justified in stopping defe ndant beca use he fled from them in a high crime are a. A pers o n ’s prese nce in a high crime are a is a rele vant fac tor in deciding whether
, under the totality of the circ umstances, the police have rea sonable suspicion to justify a Terry stop. W ardlow
, 528 U. S

. at 1 2 4

. Another rele vant fac tor is a person’ s evasive behavior
, particula rly unprovoked flig ht from the police. Id

. Whil e neither

-4-of these fac tors taken alone is sufficie nt to est abli sh rea sonable suspicion, when coupled,

they can be enough to justify a Terry stop. Id

. at 124-25. In W ardlow
, for example, uniformed police office rs participating in a specia l narc otics operation spotted the defe ndant holding an opaque bag in an area known for heavy narc otics traff icking

. Id

. at 121-22. The d ef endant fled wh en he saw the police, and when he was caught, the police conducte d a protec tive

sear ch, finding a handgun in the bag

. Id

. In holding that these fac ts wer e sufficie nt to justify

a Terrystop, the Supreme Court stated:
“An individual’s prese nce in an are a of expected criminal activity
, s t anding alone, i s not enough to support a rea sonable, particula rized suspicion that the p er s o n i s committing a crime. [ Citation.] But offi ce rs ar e n ot require d to ignor e the rele vant char acte ristics of a location in deter mining whether th e c irc u

ms tance s are sufficie ntly suspicious to warra

nt f urther inve stigation. Accor dingly , we have pre viously noted the fa ct t hat t he st op occur red in a ‘hig h crime a

rea ’ amongthe re levant conte x tual considerations in a Terryanaly sis. [ Citation.]
In this case , moreove r, it was not mere ly responde nt’s prese nce in an are a of heavy narc otics traff

icking that arouse d the office rs’ suspicion, but his unpr ovoked flig ht upon noticing the police. Our case s have also rec og nized that nervous, evasive behavior is a pertinent fac t o r in deter mining rea sonable suspicion. [C itations.] Hea dlong fl ight–whe reve r it occur s–is the consummate act of evasion: I t is not

nece ssarily indicative o f wrongdoing
, but it is cer tainly sug g estive of such. In revie wing the propriety of an office r’s conduct, courts do not have available empirica l studies dealing with infere nces drawn from suspicious behavior
, and we cannot rea sonably demand scientific cer tainty from jud ges or law enfor ceme nt office rs wher e none exis ts. Thus, the deter mination of rea sonable suspicion must be based on commonsense judgme nts and infere nces about hu ma n behavior .” Id

. at 124- 25. As the concur

renc e in W

ardlow was quick to emphasize, the Supreme Court ref used to adopt the brig ht-line rule advoca ted by the State of I llinois authorizing the temporar y detention of
anyone who f

lees a t the mere sight of the police. Id . at 126, 136 (Stevens, J., concurr ing in part a nd dissenting in par

t, joined by

Souter, Ginsburg , and B reyer, JJ .). ¶ 13 The State argues that this case is similar to W ardlow and should thus be decide d on the

same basis. Def

endant counter s that W

ardlow is distinguishable beca use Offic er Goon had

no information t hat i lleg al activity wa s o cc u rring in the area, he was not investigating any particula r crime, and the trial court did not find that the location wher e he stopped defe ndant

was a high crime are a. The State contests this last point, asser ting t h at Of

fi ce r Goon’s unimpeache d testimony established that it was a high crime are a. We do not agree

. Whether

an are a has a high level of crime is a fac tual issue. People v. Davis
, 352 I ll. App. 3d 576, 580 (2004). The only contextual evidenc e introduced by the State at the suppression hear ing was adduce d throug h the followingtestimony :

“MS. PETERSON [Assi stant State’s Attorney]: Offic er Goon, in the are a wher e this [ stop] took place, how long ha ve you patrolled that a

rea ?
OFF I CER GOON: You mea n my District or that nig ht?

-5-MS. P ETERSON: Specifica lly the ar ea where you wer e and where you had the opportunity

to approa ch the De fenda nt and his co-a

rre stee? OFF I CER GO ON: That night we wer e in the are a probably since the beg inning of our shift.
MS. PETERSON: And that are a is in fac t known to be one of high burg laries and high r obberie s; is that correc t? OFF I CER GOON: That’s c orre ct. MR. L YKE [Defe nse Counsel]: Objection, J udg e. THE COURT: I am waitingfor the f irst block in Chicag o that’s not considere d in the high c rime ar ea, a

nd Ihaven’ t hear d about it y et.” The trial court did not make any express finding conce rning the char acte r of the are a wher e defe ndant was stopped. Howeve r, the only rea son g iven by the trial court for its initial finding that the police had rea sonable suspicion to stop defe ndant was his flig ht from the
p o lice, which the court descr ibed as “[t] he compelling thing.” In its ruling on defe n d an t ’s motion to reconsider, the court stated:

“THE COURT: I have hear d and co n s ide red and rec onsidered issues raised in this motion. I aga i n fi n d t he office r that testified to be cre dible. But the conduct is
actua lly neutra l in looking at W

ardlow ag ain and r eadingit.
I will respe ctfully allow the motion. I will reve rse my ruling

. Orde r of August 11th is vacate d. The motion to suppress is sustained.” This indicates that the trial court, having rer ead W ardlow
, conclude d that the State failed to establish any rele vant fac tor justifying the stop other than defe ndant’s flig ht, which was itself insufficient to establish a rea sonable suspicion that def en dant had committed, was committing, or wa s about to commit a crime. ¶ 14 A conclusory and unsubstan t i at ed s t atement that a location is a “hig h crime are a” is insufficient to establish that consider ation for pur poses of justifying a Terrystop. “The citing of an are a as ‘hig h-cr ime’ require s car eful examination by the court, beca use such a descr iption, unless properly limit ed and fac tually based, can easily

serve as a proxy for rac e and ethnicity

. *** [C ]ourts must car efully examine the testimony of police office rs *** and make a fair and forthright eval u at i o n of the eviden ce t h ey offe r, reg ardle ss of the conseque nces.” United States v. MonteroCamargo , 208 F.3d 1122, 1138 ( 9th Cir. 2000). Although the parties have not ref ere nced, and we cannot ident i fy
, any I llinois case s discussing the quantum of evidenc e nece ssary to establish that a location is a high crime are a, the handful of case s from other jurisdictions addre ssing this issue have considere d a number of fa ctors re levant to that inquiry , including some combination of the following : “(1) the nexus betwee n the ty pe of crime most preva lent or common in the are a and the ty pe of crime suspected in the instant case, e.g. , W ardlow
, 528 U.S. a

t 124, 120 S. Ct. 673 (noting that the are a was not simply g ener ally crime- ridden, but was particula rly ‘known for hea v y narc otics traff icking ,’ wher e the defe ndant was suspected of drug activity ); United St a tes v. Edmonds
, 240 F.3d 55, 60 (D.C. Cir.

-6-2001) (noting t hat the finding of a high crime are a was supported by t h e s i m i l arity betwee n the ty

pe of crime commonly found at that location and the ty pe of crime for which the police suspected this defe ndant); (2) limit ed g eographic boundarie s of the ‘ar ea’ or ‘neighborhood’ being evalua ted, e.g. , United States v. Caruthers
, 458 F.3d 459, 468 (6th Cir. 2006) (af firming a district court’s finding of a high crime are a, in
p ar t , beca use the evidenc e of fre quent crime was specific to the exact intersec t i o n wher e the stop occur

red) ; United States v. Montero-Camargo
, 208 F.3d 1122, 1138 (9th Cir. 2000) (e n banc) (‘We must be particula rly car eful to ensure that a “hig h crime” are a fa ctor is not used with respe ct to e ntire neig hborhoods or c ommuniti es in which members of minority groups regularly g o about their daily business, but is limit ed to specific
, circ umscribed locations wher e particula r crimes occur with unusual regularity .’); and (3) temporal proxi mity betwee n evidenc e of height ened criminal activity and the date of the stop or sear ch at issue, e.g. , United State s v. Bailey
, 417 F.3d 873, 874-75, 877 (8th Cir. 2005) (af firming high crime are a finding
, in part, beca

use of criminal activity during wee k prior to the stop at issue, occur ring i n same location as the stop). Evidence on these issues could include a mix o f objective data and the testimony of police office rs, descr ibing their experience s in the

are a.” United States v. W

right , 485 F.3d 45, 53- 54 (1st Cir. 2007).
See also D.R. v. State
, 941 So. 2d 536 (F la. Dist. Ct. App. 2006) (police office r’s vague and unsubstantiated statement that a neig hborhood was a known high crime or narc otics are a was insufficient to establish that it was a high crime are a). Whil e these decisions are not binding

on this court, they may be considere d as persua sive authority

. People v. Boec kmann
, 238 I ll. 2d 1, 12 (2010). ¶ 15 In this case , aside from Offic er Goon’s unsubstantiated response to the State’s question of whether the are a was “known to be one of high burg laries and high robber ies,” which the
tr i al court reje cted, no evidenc e was introduced, either by way of experience or objective knowledge, conce rning the level of crime in the are a wher e defe ndant was stopped. No evidenc e wa s introduced c oncer ning the timing, fre quency or location of the robbe ries and burg laries ref

ere n ce d by the State. No evidenc e was introduced that the police suspected defe ndant of committing any robber ies or burg laries. Nor wer e the boundarie s of the are a at issue even g ener ally define d. Fur ther, the police wer e not responding to any repor t of a crime
or eng ag ing in a

n investigation of a crime that might aler t the m to the prese nce of cr iminal activity

. In short, the State failed to establish the prese nce of any signific ant criminal activity in the are a of the stop. That defic iency distinguishes this case from W ardlow

. Gi v en t he dear th of contex tual evidenc e, and the fact that the onl y other evidence possibly justifying the stop was defe ndant’s evasive conduct, we do not f ind that the trial court’s decision was clea rly err oneous.

¶ 16 I I . The Protec tive Searc h ¶ 17 Having conclude d that the police wer e not justified in temporar ily detainingdefe ndant,

we must also conclude that their subsequent sear ch of defe ndant was not justified. A police office r making a rea sonable investigat o ry s t o p may conduct a protec tive sear ch if he has

-7-rea son to believe the suspect is arme d and dang erous. Adams v. W illiams
, 407 U.S. 143, 146 (1972). “The purpose of this limit ed sear ch is not to discover evidenc e of crime, but to allow the office r to pursue his inves t i g ation without fea r of violence***.” Id

. This standard is embodi ed i n t h e Code, which allows a police office r who “has stopped a person for temporar y questioning pursuant to Section 107-14” to perf orm a protec tive sear ch when he “re asonably suspects that he or another is in dang er of attack.” 725 I L CS 5/108-1.01 (West 2008). Howeve r, the rig ht to perf orm a protec tive sear ch presuppose s the rig ht to make the stop. The police may only perf orm a protec tive sear ch if they are entitled to stop the person in the first place

. A d

a ms , 407 U.S. at 146 (police office r may perf orm a protec tive sear ch “[s] o long as the office r is entitled to make a forc ible stop, and has rea son to believe that the suspect is arme d and dang erous” ); Davis
, 352 I ll. App. 3d at 580 (“I n order for a frisk to be constitutionally rea sonable, (1) the stop must be proper , (2) the office r must have rea son to know that the defe ndant is arme d and dang erous, and (3 ) t h e s co p e of the sear ch must be strictly limit ed to a sear ch for wea pons.”). This court provided an instructive example of this principle in People v. F.J.
, wher e it ref ere nced with approva l Professor L aF ave’ s statement: “ ‘[I ]f a policeman sees a suspicious bulge which p ossibly could be a gun in the pocket of a pedestria

n who is not eng ag ed in any suspicious conduct, the office r may not ap proac h him and conduct a frisk. And this is so even though the bulge would support a frisk had there been a prior lawful stop. L ikewise, if an office r, lacking the quantum of suspicion r equire d by Terry to make a for cible stop, instead conduc ts a non-seizure field interrog ation, he may not frisk the person interr o gat ed upon suspicion that he is arm ed ; in such a case the office r may protec t himself by not eng ag ing in the confr ontation.’ ” People v. F.J.
, 315 I ll. App. 3d 1053, 1060 (2000) (quoting 4 Way

ne R. L aF ave, Searc h and Seizure § 9.5(a)
, at 247-48 (3d ed. 1996)). Since Officer Goon di d not provide spec ific and a rticulable f

acts justify

ing the Terrystop, th e p ro t ec t i ve sear ch perf ormed during that stop also lacke d a sound constitutional basis. Acc ording ly , the trial cour t’s rulinggrantingdefe ndant’s motion to suppress is affirme d.

¶ 18 CONCLUSI ON ¶ 19 Ba s ed on the foreg oing, we affirm the trial court’s ruling of October 7, 2010, g ra n t i n g defe ndant’s motion to suppress.

¶ 20 Affir

med.

-8-