## 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 . Petty , 2012 IL App (2d) 110974

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CHRI STOPHER A. PETTY, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-11-0974

Filed Dec ember 12, 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 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

. ) Since the investigatory stop that resulted in the discovery of canna bis in defe ndant’s pocket was based on an office r’s observation of an innocuous

en counter betwee n the drivers of two vehicles and not a rea sonabl e articula ble suspicion that defe ndant was eng ag ed in criminal activity
, his conviction for unlawful possession of canna bis with intent to deliver was

reve rsed.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 09-CM-6600; the Hon. Ronald D. Sutter, J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appea l Thomas A. L ilien and Fletc h er P. Hamill, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Robert B. Be rlin, State’s Attorney
, of Wheaton (L isa Anne Hoffma n, Assistant State’s Attorney
, and L awr ence M. Ba u er an d Matthew J

. Schmidt, both of State’s Attorney s Appellate P ro s ecutor’s Offic e, of counsel), f

or the People.

Panel JU ST I CE SC H O ST O K delivere d the judgme nt of the court, with opinion. Presiding J ustice Bur

ke and J ustice J org ensen concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a stipulated bench trial, the defe ndant, Christopher A. Petty
, was convicted of possession of canna

bis with intent to deliver (720 I L CS 550/5(b) (West 2008)) and sentenc ed
to one year of conditional discharg e. On appea l, the defe ndant argues that the trial court err ed in denying his pretria l motion to suppress the evidenc e. In that motion, the defe ndant alleg ed that police office rs had c onducted a n investigatory stop, which resulted in the discovery of the canna bis, without having a rea sonabl e ar t iculable suspicion that he was eng ag ed in criminal ac tivity . We reve rse. ¶ 2 On November 16, 2009, the defe nd an t wa s ch ar ged by misdemeanor complaint with possession of canna

bis w ith intent to deliver . The c omplaint a lleg ed that on November 13, 2009, the defe ndant possessed betwee n 2.5 and 10 grams of canna bis and intended to deliver it to another

. On October 22, 2010, the defe ndant fi l ed a p retria l motion to suppress the evidenc e. A he aringwas he ld on the motion on May 2, 2011. ¶ 3 At the hearing, Elmhurst police office r Kenne th L afin testified that o n No v em b er 1 3
, 2009, at about 7 p.m., he was on patrol with Offic er J eff Kuce ra, in an unmarke d vehicle,

near the intersec tion of North Avenue and Route 83. They noticed a teal-c olored Pontiac backe d into a parking space at a g as station. A Cadillac pulled into the g as station and drove up next t o the Pontiac, driver ’s door to driver’s door. The vehicles c ontained no occ upants other than the drivers. The drivers of both vehicles exit ed their car s, approa ched eac h other,
eng ag ed in a hand-to-ha

nd exchang e of some unknown object o r o b j ects, and quickly g ot back into their ve hicles. The defe ndant was driving the Cadillac. The e x chang e took about 10 seconds and Offic er L afin did not observe any conver sation betwee n the two drivers. After they witnessed the exchang e, he and Offic er Kuce ra pulled into the g as station parking lot. At that point, the defe ndant had alre ady pulled out of the parking space and begun to

-2-move towar d the exit of the ga s station. Office r L afin testified spe cifica lly as follows:
“W ell, Mr. Petty had alre ady started to back out and beg an to exit the lot. W e p u l l ed up–as he w as hea ded toward the south e x it, we pulled up, I guess it would be his–well,
not guess, it would be his rea r driver’ s quarte r panel behind his door almost to a T with him pointi ngto the exit , us fac ing the rea r of his ca r.” Offic er L afin further testified that the Cadillac “wa s pointing out to leave the parking lot, and it stopped when Offic er Kuce ra pulled behind it.” Ultimately
, Offic er L afin approa ched the Pontiac and Offic er Kuce ra approa ched the Cadillac. Offic er L afin testified that he had

rec eived training in identifying dru g transac tions. His most rec ent training was sever al months prior to the stop at issue. He had lear ned that quick hand-to-ha nd transac tions, with
very littl e or no c onversation, are c onsistent with drug tra nsactions. ¶ 4 Offic er K

ucer a testified that he was on patrol with O ffice r L afin in a n unmarke d squad

car n ea r the intersec tion of North Avenue and Route 83 at approximately 7 p.m. on November 13, 2009. Offic er Kuce ra was the driver. Offic er Kuce ra described the same handto-hand e x chang e betwee n the drivers of the Pontiac and the Cadillac. He did not see what

was exchang ed. He drove the unmarke d squad car into the g as station parking lot as t he defe ndant beg an to back out of his parking space

. Offic er Kuce ra testified t h at when he pulled into the ga s station: “[The s quad car] was in the front of bo t h v eh i cles, but I was back approx imately a car leng th, beca

use as I pulled up and ac t i v at ed the lights, Mr. Petty pulled in front of my vehicle a nd beg an to pass my

vehicle towa

rds Route 83.” Offic er K ucer a re iterate d that the defe ndant “had backe d out, put the car in drive, and the n begun to pull forwa

rd.” At that point, Office r Kuc era activate d the lights on the squa d car

. The squad c ar w as at a

right ang le to the Cadillac. Of fice r Kuc era

testified: “My car was not in front of Mr. Petty ’s car

. Mr. Petty ’s car actua lly had passed the front of my vehicle, a

nd I had to ac tually

yell at him to stop, which he did.” Offic er Kuce ra exit ed the squad car and approa ched the defe ndant. He identified himself as

an Elmhurst police office r and asked the defe ndant to g et out of the car

. He told the d efendant that he believed that he had just witnessed a drug transac tion and he as k ed t h e defe ndant if he had any

thing illega l on his person. The defe ndant stated that he had two bag s of ca nnabis in his front left pocke t. ¶ 5 Following arguments by counsel, the t ri al co u rt d en i ed t he defe ndant’s motion to
suppress. The trial court noted that in P eo p l e v. Ocampo
, 377 I ll. App. 3d 150 (2007), in which this court deter

mined that the police did not have rea sonable suspicion to conduct an investigatory stop, the office rs wer e not able to see the exchang e. The trial court further noted that, in People v. Morales
, 221 I ll. App. 3d 13 (1991), this court had found rea sonable suspicion where office rs observe d the defe ndant exchang e something with a nother person, the defe ndant and the other person immediately separ ated when the office rs arrived, and the defe ndant was holding his hands in a cupped manner close to his body

. The trial court found that, in this case , the office rs had wi tnessed an exchang e. Fur ther, Offic er L afin testified
reg arding his training in hand-to-ha nd drug transac tions and both office rs testified that they believed they had witnessed a drug transac tion. Ba sed on the fore g oing, the trial court found

-3-that the offic ers’ suspicions wererea sonable.

¶ 6 The c ause pr ocee ded to a stipulated bench trial. The pa rties stipulated that, pursuant to

a police repor

t prepa red afte r the defe ndant’s arr est, the defe ndant admitted to police that he had sold canna

bis to the individual in the Pontiac. The parties also stipulated to a labora tory repor t that indicated that the suspected canna bis found in the defe n d an t ’s pocket tested positive for canna

bis. The trial court found the defe ndant guilty of possession of canna bis with intent to deliver and sentenc ed the defe ndant to one year of conditional discharg e. The defe ndant filed a

timely notice of a

ppeal. ¶ 7 The defe ndant’s sole con t en t i o n o n appea l is that the trial court err ed in denying his motion to suppress. In his motion to suppress, the defe ndant alleg ed that the discovery of the

canna bis occur red during an investigatory stop that was not supported by a rea sonable articula ble suspicion of criminal activity

. In revie wing a ruling on a motion to suppress, we aff ord great defe renc e to a trial court’s fac tual finding s and will not reve rse them unless they

are contra ry to the manifest we ight of the evidenc e. People v

. Luedemann
, 222 I ll. 2d 530, 542 (2006). Nonethele ss, as a revie wing court we are fre e to draw our own leg al conclusions based on the fac ts. Id. Acc ording ly
, we revie w de novo the ultimate leg al ruling granting or denying the motion. Id. ¶ 8 The fourth amendment to the United States Constitution an d th e I llinois Constitution prohibit sear ches and seizures only wher e they are unrea sonable. People v. Love
, 199 I ll. 2d 269, 275 (2002). Gene rally
, rea sonablene ss in the context of a fourth amendment sear ch and seizure require s a war

rant supported by probable cause

. Id. Howeve r, in Terry v. Ohio
, 392 U.S. 1 (1968), the United States Supreme Court provided an exception to the war rant and probable cause require ments. I f a p o l i ce office r “has ‘knowledg e of sufficie nt articula ble fac ts at the time of the encounte r to cre ate a rea sonable suspicion that the person in question has committed, or is about to commit, a crime’ [citation]
, the office r may briefly stop and detain the person to make rea sonable inquiries [citation] .” Love
, 199 I ll. 2d at 275 (quoting People v. Smithers
, 83 I ll. 2d 430, 4 3 4 (1 9 8 0 )). Whether a Terry stop is supported by a

rea sonable suspicion depe nds on the facts known t o the officer at the time of the stop, and such rea sonable suspicion must be based on more than a mere hunch. Ocampo
, 377 I ll. App. 3d at 161. ¶ 9 The defe ndant argues that the investigatory stop that res u l t ed i n the discovery of the

canna bis was not supported by a reason able articula ble s uspicion of criminal activity

. The defe ndant not es that the off icer s did not describe t he hand-to-hand ex chang e in any detail. The off icer s could not te ll who handed the alleg ed object versus who rec eived it and could
not tell what was alleg edly exchang ed. The defe ndant argues, there fore
, that the office rs had

no rea son to believe that the def endant a nd the ot her indivi dual were doing any thing other than shaking hands. The defe ndant further notes that the office rs did not describe the are a as

a high- crime are a, wer e not on surveillance
, and had no information that a drug transac tion

was expected to take place in that a rea

. The defe ndant argues that this case is controlled by Ocampo

. ¶ 10 In Ocampo
, an office r testified that a person was in his car parke d at a g as st at i o n and talking on his cell phone. Id. at 151. The defe ndant came from behind the g as station, walked

-4-around the car , tapped on the trunk, and g ot in the front passeng er seat. Id. at 152. The driver

and the passeng er exchang ed a look and had a short conver sation, and the defe ndant moved

as if he wer e taking something out of his pocket. The office r could not hear the conver sation

or see the def

endant’ s hands. Id. The off icer did not testify that the gas station was a highcrime are a or that the police had incriminating prior knowledg e of t he defe ndant or the driver. Id. at 161. This c ourt found that the fore g oing fac ts provided the office r with only a hunch of criminal activity

. Id. at 162. We acknow ledg ed that, altho u gh t he defe ndant’s
movements were co n s i s t ent with a drug transac tion, they wer e also consistent with many innocent scenarios. Id. We further noted t hat t he testi m o n y did not indicate that the pol ice had any rea son, independe nt of the defe ndant’s actions, to suspect criminal activity

. Rather, the police observe d the defe ndant “pure ly by coi ncidenc e, not as part of a stakeout of a known drug -traf

fickingare a.” Id. ¶ 11 The defe ndant argues that, like in Ocampo
, (1) the office rs did not see whether any thing

was actua lly exchang ed, but saw actions that only led th em t o believe that an exchang e

occur red; (2) his actions wer e consistent with any number of innocent scena rios; and (3) the office rs had no external information to justify the stop, other than the hand-to-ha nd exchang e itself. Ba sed on this court’s holding in Ocampo
, the defe ndant argues that the trial court err ed in denying his motion to suppress. ¶ 12 The State argues that Ocampo is distinguishable beca use in that case the office rs did not
actua lly see any

thing being exchang ed. Here, the State notes that the o ff i cers testified t hat they definitely saw something being exchang ed, they just could not see what was exchang ed. The S tate contends that the fa cts in this case are more sim ilar t o those in Morales
, 221 I ll. App. 3d 13. ¶ 13 In Morales
, an office r saw two men approa ch eac h o t h er an d ex ch an ge som ething
, although the office r could not see what was exchang ed. Id. at 15. The office r shined a spotlight on the two men. One walked into a near by store an d the other, the defe ndant, walked awa

y holding his hands in a cupped fashion. Id. The office r ag ain shined a spotlight

on the defendant a

nd pulled up next to him. Id. The officer exit ed the squad car and asked what had been exchang ed. The defe ndant shrug g ed his shoulders. Id. The office r shined his flashlight at the defe ndant’s hands and asked what was in his hands. The defe ndant showed him a butane lighter fluid box

. Id. The office r testi fi ed that the exchang e appea red to be a “drug -ty pe transac tion.” Id. The revie wing court found the following fac ts sufficie nt to raise

a rea sonable suspicion of criminal activity : (1) the defe ndant was holding his hands in a cupped fashion close to his body ; (2) the defe ndant appea red to exchang e somet h i n g with another person, which t h e o ff i cer characte rized as a drug -ty pe transac tion; and (3) the defe ndant and the othe r man immediately separ ated whe n the offic ers a rrived. Id. at 16. ¶ 14 The State argues that the following fac ts are consistent with those in Morales : (1) Of fice r L afin testified that the exchang e ap p ea re d consistent with a drug transac tion; (2) the defe ndant and the individual in the Pontiac separ ated quickly afte r making the exchang e; and (3) the defe ndant acte d furtively when the squad car approa ched, i.e.
, Offic er Kuce ra had to yell at the def

endant to stop. ¶ 15 The parties also discuss In re F.R.
, 209 I ll. App. 3d 274 (1 9 9 1 ). I n F .R.
, an off

icer

-5-observe d a driver pull up at a ce rt ai n intersec tion and wave to the responde nt, who was

standing on the corne r. Id. at 276. The responde nt approa ched the car but immediately moved

awa y from the car when he saw t h e o ff i ce r an d h is partne r. Id. The office r did not see the driver and the responde nt e x chang e any thing. Id. The office r testified that he had observe d about 25 drug transac tions at this particula r intersec tion and had made around 12 arr ests there in the last six months. Id. The drug transac tions wer e con du ct ed in the same

manner –someone pull ing up at t he int erse ction and waving to someone on the corner, and that person approa ching the car to car ry out the drug transac tion. Id. The revie wi n g court found that the office r had rea sonable suspicion of crimi n al activit y , based on the office r’s experience of drug transac tions occur ring at that particula

r intersec tion in that particula r

manner

. Id. at 280. ¶ 16 The defe ndant argues that F.R. is distinguishable beca use, in the prese nt case , the offic ers did not testify that the defe ndant was in a high- crime are a or that the defe ndant’s actions

rese mbled other drug transac tions that occur red in that are a. The State ar gu es that F.R. supports a finding of rea sonabl e suspicion in this case beca use what the office rs observe d followed a standard pattern for drug transac tions, just as in F.R. The State further notes that the F.R. court found rea sonable suspicion even though the office r in F.R. had not obse rved

an actua l exchang e, and it contends that, since the office rs in this case observe d an exchang e of something , there is a strong er ba sis for a f inding of rea sonable suspicion than in F.R. ¶ 17 We find that Ocampo is most p er s u as i v e. I n t h e p re s ent case , as in Ocampo , the defe ndant’s conduct was consistent with any number of innocent scena rios, the office rs came upon the defe ndant purely by coincidenc e, and, other than the defe ndant’s observe d actions, the office rs did not have any rea son to suspect that criminal ac t i v i t y had taken place

. Acc ording ly
, the office rs could not have had any thing more than a hunch of criminal activity

. Ocampo , 377 I ll. App. 3d at 161-62. The only distinguishing fac tor is that, in Ocampo , the office rs did not actually

see a n exchang e. Rather , they

saw moveme nts that only looked as if there was an exchang e. The Ocampo court noted that this wa s a fac tor that distinguished the case from Morales

. Id. at 163. Howeve r, the Ocampo court noted that this wa s n ot the critica l distinction. Rather, the critica l distinction was th at t he poli ce in Morales observe d much more suspicious activity

. Id. at 164. Simi larly
, the fac t that the office rs in the prese nt

case actua lly saw an exchang e is not a critica l distinction from Ocampo

. What is most critica l

are the simil arities– th e defe ndant was not in a known high- crime are a, the office rs came upon the defe ndant by coincidenc e, and the defe nd a nt’ s c o n d u c t w a s c onsistent with innocent activity

. ¶ 18 F.R. is clea

rly distinguishable on the basis that the office rs in that case testified that the observe d actions occur

red in a high-crime are a, in a pa rticular ma

nner. I n the prese nt c ase, the office rs did not testify that the transac tion occur red in a high- crime are a or that it

occur red in a particular manner consistent with drug transac tions specific to that are a. S ee id. at 162-63 (distinguishing F.R. on these same bases)

. ¶ 19 Morales is also distinguis h ab l e fr o m t h e p resent case in that there wer e no furtive
movements here

. In Morales
, the defe ndant separ ated from the other person upon seeing the office rs and wal ked away with his hands cupped. The S tate argues that here the defenda nt acte d furtively
, beca

us e “a fter [Officer Kuce ra] turned on the squad car ’s lights, the

-6-defe ndant pulled in front of the squad car and kept driving

. Offic er Kuce ra had to yell at the

defe ndant to stop.” Howeve r, this argument mi s c o n s tr u e s th e e v id e n c e

. O ffice r L afin testified that, when the office rs had pulled into the g as station and activate d the emer g ency lights, the defe ndant had alre ady backe d out and begun to exit the lot. The squad car was perpe ndicular
t o the rea r quarte r panel of the Cadillac. Offic er Kuce ra testified that the defe ndant h ad backe d out, put the car in drive, and begun to pull forwa rd when Offic er Kuce ra activate d the squad ca r’s lights. He fur

ther testified that the defe ndant’s car had alre ady passed the f ront of the squad car and, there fore
, Offic er Kuce ra had to yell at the defe ndant to stop, which the defe ndant did. There is no indica tion from this testim ony

that the def

endant sa w the squad

car and continued to drive, was attempting to evade the police, or otherwise acte d in a furtive

manner

. ¶ 20 Acc ording ly
, the investigatory stop of the defe ndant was illega l and the trial court should have gran t ed t h e d ef

endant’ s motion to suppress the evidenc e obtained as a result of that illega lity
, namely
, the canna bis discovere d in the defe ndant’s front pocket. People v. Kipfer
, 356 I ll. App. 3d 132, 143 (2005). Be cause t h e S t ate would be unable to prove beyond a

rea sonable doubt that the defe ndant unlawfully possessed canna bis in the absenc e of that evidenc e, it is proper to re verse outrig ht the defe ndant’s convic tion and sentenc e. See id. ¶ 21 Fo r t h e fo re g oing rea sons, the judgme nt of the circ uit court of Du P age C o u n t y i s

reve rsed.

¶ 22 Reverse d.

-7-