Illinois Official Reports 

Appellate Court

People v. Smith, 2015 IL App (1st) 131307

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

VERNON SMITH, Defendant-Appellant.

District & No. First District, Fifth Division

Docket No. 1-13-1307

Filed May 29, 2015

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 11-CR-2825; the 

Hon. Evelyn B. Clay and the Hon. James B. Linn, Judges, presiding.

Judgment Reversed.

Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Joshua M. Bernstein, all of 

State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

Carol L. Gaines, and Leslie Billings, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE McBRIDE delivered the judgment of the court, with 

opinion.

Presiding Justice Palmer and Justice Reyes concurred in the judgment

and opinion.
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 OPINION 

¶ 1 Following a jury trial, defendant was convicted of aggravated unlawful use of a weapon 

(AUUW) (720 ILCS 5/24-1.6 (West 2010)) and unlawful use of a weapon by a felon 

(UUWF) (720 ILCS 5/24-1.1 (West 2010)). The trial court subsequently sentenced defendant 

to concurrent terms of nine years in the Illinois Department of Corrections. 

¶ 2 Defendant appeals, arguing that: (1) the trial court erred in denying his motion to quash 

his arrest and suppress evidence because defendant’s “furtive movements” did not support a 

reasonable inference that he was armed and dangerous; (2) defendant’s convictions for 

AUUW and UUWF violate the one-act, one-crime rule; (3) defendant’s conviction for 

UUWF violates the second amendment (U.S. Const., amend. II); (4) defendant’s sentence for 

AUUW violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 

1970, art. I, § 11); and (5) the mittimus should be corrected to reflect 450 days of presentence 

credit and that defendant was found guilty of counts I and V. 

¶ 3 Following a traffic stop in February 2011, a firearm and ammunition were found in 

defendant’s vehicle. Defendant was arrested and subsequently indicted on multiple counts of 

AUUW and UUWF. Prior to trial, defendant filed a motion to quash his arrest and suppress 

evidence. In his motion, defendant argued that his conduct prior to his arrest “would not 

reasonably be interpreted by the arresting officers as constituting probable cause that 

[defendant] had committed or was about to commit a crime.”

¶ 4 The trial court conducted a hearing on defendant’s motion in July 2011. At the hearing, 

Baretta Thomas testified that he was in the passenger seat of defendant’s car at 

approximately 1:30 a.m. on February 5, 2011. Defendant was driving Thomas home. Thomas 

stated that the roads were slippery due to recent snowfall and defendant “slid” through the 

stop sign at 73rd Street and University Avenue. Thomas said that defendant pulled over 

immediately after the police activated their lights. Two officers approached the vehicle and 

one asked defendant for his driver’s license and insurance. Thomas testified that the officers 

then removed Thomas and defendant from the car. The men were handcuffed together. The 

officers then searched the car. Thomas stated that defendant was calm and cooperative with 

the police officers. On cross-examination, Thomas admitted he was asleep during the 

incident and did not know if defendant stopped at the stop sign. Thomas stated on redirect 

that he was awake when the police turned on their lights. 

¶ 5 Officer Perez testified for the State. He stated that on February 5, 2011, he was on routine 

patrol with a partner in uniform in a marked squad car. He was the driver and Officer Hagen 

was in the passenger seat. Officer Perez was driving westbound on 73rd when he approached 

a four-way stop with University. He observed a Buick LeSabre make a left turn from 

University onto 73rd without stopping at the posted stop sign. Officer Perez stated that he 

could see the rear brake lights on the car but did not see the lights on. He did not see “any 

pause at that intersection.” At that point, Officer Perez “followed the vehicle for a couple of 

blocks and curbed it.”

¶ 6 After the vehicle stopped, Officer Perez approached on the driver’s side. He identified 

defendant as the driver. As he approached, he “observed [defendant] making a furtive 

movement towards the rear of the passenger seat.” He stated that he saw defendant “reach 

with his right hand towards the rear of the front passenger seat.” Officer Perez stated there 
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were streetlights in the area and the headlights of his vehicle and a spotlight were directed at 

the stopped vehicle. 

¶ 7 Officer Perez asked defendant to step out of the vehicle and he detained him. Officer 

Perez testified that there was also a person in the front passenger seat. He stated that the 

passenger was asleep and his partner woke the passenger by banging on the door. Both men 

were asked to step behind the car and Officer Perez called for additional squad car assistance. 

He then returned to the vehicle and searched in the area where he observed defendant reach 

and he discovered a .25-caliber handgun with a purple Crown Royal bag containing live 

ammunition. 

¶ 8 On cross-examination, defense counsel asked Officer Perez when he “put [his] lights on 

after the stop sign,” and Officer Perez answered, “It wasn’t until I–a couple of blocks before I 

curbed the vehicle.” Defense counsel also asked, “When you curbed the vehicle, [defendant] 

pulled over immediately, is that fair to say?” Officer Perez responded, “Yeah.” Officer Perez 

stated that when he approached the vehicle, he did not see a firearm in defendant’s hand and 

that he never saw a firearm in defendant’s hand. He said he was approximately three feet 

away when he observed defendant reaching for the back of the front passenger seat, but he 

had a clear view through the window. He estimated that defendant’s movements lasted three 

to four seconds. 

¶ 9 Officer Perez described defendant as quiet and he followed the officers’ direction and 

was not argumentative. When asked why he asked defendant to step out of the car, Officer 

Perez answered, “for officer safety.”

¶ 10 After hearing evidence and arguments, the trial court requested the parties submit 

additional briefing on the motion. In August 2011, the trial court denied defendant’s motion 

to quash his arrest and suppress evidence. The court made the following findings on the 

record. 

“[I]t was a police car chasing a person. And the circumstances of that is [sic] as they 

are approaching this car, there is this furtive movement. The person is aware of an 

officer approaching ***. And the officers are aware that they had to trail someone for 

something–the stop wasn’t right away. And I think that’s part of the situation is the 

circumstances of the stop. And these types of cases are analyzed and determined 

whether or not–what the actions whether or not the officers took was appropriate 

under the law. And the court *** finds that it was. That being seeing that movement 

after giving chase, in uniform, but clearly a police car, movement toward the rear of 

the car there. And that they did a search and that weapon was recovered in the back 

area there towards where he made the furtive movement. 

 The court finds, of course, the stop was valid because of the traffic incident. But 

the stop was valid. And then they were approaching to do this interview pursuant to 

the stop rather and the evidence that defendant seeks to suppress is–was recovered.”

¶ 11 Defense counsel tried to clarify to the trial court that no chase occurred when defendant 

was pulled over, but the State disagreed. The court found that “[t]here was a chase however 

short. Under those circumstances, they come to this car. And the driver is gesturing, making 

a furtive movement toward the rear of the car as the officers are approaching from the rear.” 

The court held that the officers’ actions were constitutional.
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¶ 12 A jury trial was conducted before a different trial judge in March 2013. Officer Perez’s 

testimony was substantially similar to his testimony at the suppression hearing. Officer Perez 

stated that after he observed defendant disregard the stop sign, he “proceeded to get behind 

the vehicle and eventually we curbed him.” The prosecutor asked Officer Perez, “By 

‘curbed,’ do you mean you activated the lights and sirens?” Officer Perez responded, “Yes. 

We activated the lights and then he pulled to the side, pretty much curbed.” On 

cross-examination, Officer Perez stated when he turned on his lights, the vehicle “curbed 

right away.”

¶ 13 Officer Perez again testified that as he approached defendant’s vehicle, he observed 

defendant “with his right hand with a shoving motion to the front passenger rear pouch *** 

of the seat.” Officer Perez stated that he called for assistance and one unit arrived at the scene 

as he and his partner were moving defendant and Thomas to the rear of the car. Officer Perez 

then returned to defendant’s vehicle and searched the pouch of the passenger seat. He 

recovered a loaded firearm and 16 rounds of live ammunition in a Crown Royal bag.

¶ 14 Officer Hagen testified that on February 5, 2011, he was on routine patrol and assigned 

with Officer Perez. Officer Hagen was the passenger in the marked squad car. He testified 

consistent with Officer Perez’s description of the traffic violation. He stated that after they 

observed the vehicle disregard the stop sign, Officer Perez drove behind the vehicle and they 

ran the vehicle’s license plate and then they curbed the vehicle.

¶ 15 As he approached the vehicle from the passenger side, Officer Hagen observed defendant 

“trying to hide something” with his right hand in the rear pouch of the front passenger seat. 

When Officer Hagen approached the passenger side, he saw an individual who appeared to 

be sleeping in the passenger seat. Officer Hagen knocked on the window to wake the 

passenger. He escorted the passenger out of the vehicle and brought him to the rear of the 

vehicle. He observed Officer Perez search where it appeared defendant may have hidden 

something. Officer Perez recovered a firearm and ammunition, which he showed to Officer 

Hagen. 

¶ 16 The State also presented documents indicating: (1) defendant has never been issued a 

firearm owner’s identification card, (2) a 1998 Buick LeSabre was registered to defendant, 

and (3) defendant’s prior felony conviction for AUUW. The State then rested. Defendant 

moved for a directed finding, which the trial court denied. Defendant rested without 

presenting any additional evidence. 

¶ 17 Following deliberations, the jury found defendant guilty of one count of AUUW and one 

count of UUWF. At the subsequent sentencing hearing, the trial court imposed concurrent 

terms of nine years’ imprisonment for each count.

¶ 18 This appeal followed. 

¶ 19 Defendant first argues that the trial court erred in denying his motion to quash his arrest 

and suppress evidence. Specifically, defendant contends that the trial court’s conclusion that 

a chase occurred was erroneous and that a furtive movement alone was not sufficient to 

support a reasonable inference that defendant was armed and dangerous. The State maintains 

that it was reasonable for Officer Perez to believe that defendant was dangerous and may be 

able to gain immediate control of a weapon. 

¶ 20 In reviewing a trial court’s ruling on a motion to suppress, this court applies a de novo

standard of review. People v. Sorenson, 196 Ill. 2d 425, 431 (2001); see also Ornelas v. 
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United States, 517 U.S. 690, 699 (1996). However, findings of historical fact will be 

reviewed only for clear error and the reviewing court must give due weight to inferences 

drawn from those facts by the fact finder. Ornelas, 517 U.S. at 699. Accordingly, we will 

accord great deference to the trial court’s factual findings, and we will reverse those findings 

only if they are against the manifest weight of the evidence; however, we will review de novo

the ultimate question of the defendant’s legal challenge to the denial of his motion to 

suppress. Sorenson, 196 Ill. 2d at 431. “Further, the reviewing court may consider evidence 

adduced at trial as well as at the suppression hearing.” People v. Richardson, 234 Ill. 2d 233, 

252 (2009). 

¶ 21 “Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of 

individuals to be free from unreasonable searches and seizures.” People v. Colyar, 2013 IL 

111835, ¶ 31 (citing U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6). “This court has 

explained that ‘[t]he “essential purpose” of the fourth amendment is to impose a standard of 

reasonableness upon the exercise of discretion by law enforcement officers to safeguard the 

privacy and security of individuals against arbitrary invasions.’ ” Id. (quoting People v. 

McDonough, 239 Ill. 2d 260, 266 (2010), quoting Delaware v. Prouse, 440 U.S. 648, 653-54 

(1979)). 

¶ 22 “It is well settled that not every encounter between the police and a private citizen results 

in a seizure.” People v. Luedemann, 222 Ill. 2d 530, 544 (2006) (citing Immigration & 

Naturalization Service v. Delgado, 466 U.S. 210, 215 (1984)). “Courts have divided 

police-citizen encounters into three tiers: (1) arrests, which must be supported by probable 

cause; (2) brief investigative detentions, or ‘Terry stops,’ which must be supported by a 

reasonable, articulable suspicion of criminal activity; and (3) encounters that involve no 

coercion or detention and thus do not implicate fourth amendment interests.” Luedemann, 

222 Ill. 2d at 544 (citing United States v. Black, 675 F.2d 129, 133 (7th Cir. 1982), and 

United States v. Berry, 670 F.2d 583, 591 (5th Cir. 1982)). “In Terry, the Court held that a 

brief investigatory stop, even in the absence of probable cause, is reasonable and lawful 

under the fourth amendment when a totality of the circumstances reasonably lead the officer 

to conclude that criminal activity may be afoot and the subject is armed and dangerous.” 

Colyar, 2013 IL 111835, ¶ 32 (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). “For a stop to be 

justifiable under Terry, the officer must present specific, articulable facts which would cause 

a reasonable person to fear for his safety or the safety of others.” People v. Anderson, 304 Ill. 

App. 3d 454, 462 (1999). “Absent such circumstances, a warrantless search is unreasonable 

and the testimony by an officer that he subjectively feared for his safety, standing alone, does 

not satisfy this requirement.” Id. “When reviewing the officer’s action, we apply an objective 

standard to decide whether the facts available to the officer at the time of the incident would 

lead an individual of reasonable caution to believe that the action was appropriate.” Colyar, 

2013 IL 111835, ¶ 40. 

¶ 23 The Supreme Court in Michigan v. Long, 463 U.S. 1032, 1049 (1983), extended Terry to 

include: 

“the search of the passenger compartment of an automobile, limited to those areas in 

which a weapon may be placed or hidden, is permissible if the police officer 

possesses a reasonable belief based on ‘specific and articulable facts which, taken 

together with the rational inferences from those facts, reasonably warrant’ the officer 
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in believing that the suspect is dangerous and the suspect may gain immediate control 

of weapons.”

¶ 24 The Supreme Court noted that this conclusion was compelled by the fact that “roadside 

encounters between police and suspects are especially hazardous, and that danger may arise 

from the possible presence of weapons in the area surrounding a suspect.” Id. However, “[a]s 

in Terry, ‘ “[t]he issue is whether a reasonably prudent man in the circumstances would be 

warranted in the belief that his safety or that of others was in danger.” ’ ” Colyar, 2013 IL 

111835, ¶ 39 (quoting Long, 463 U.S. at 1050, quoting Terry, 392 U.S. at 27). 

¶ 25 Here, the trial court denied defendant’s motion based on defendant’s furtive movement 

toward the rear pouch of the passenger seat paired with a short chase prior to defendant 

pulling over for the police. However, we disagree with the trial court’s finding that a chase 

occurred in this case. 

¶ 26 The testimony from the suppression hearing showed that Officer Perez observed 

defendant make a left turn from University onto 73rd without stopping at a posted stop sign. 

Officer Perez testified on direct that after he observed the vehicle disregard the stop sign, he 

“followed the vehicle for a couple of blocks and curbed it.” Further, on cross-examination, 

defense counsel asked Officer Perez when he activated the lights after the stop sign, and the 

officer answered that “it wasn’t until [he]–a couple of blocks before [he] curbed the vehicle.” 

He then answered in the affirmative when asked if the vehicle pulled over immediately when 

he curbed it. 

¶ 27 Based on Officer Perez’s testimony, we find that he used the term “curbed” to describe 

the point in time when he activated the lights to pull over defendant. Officer Perez’s 

testimony established that he followed behind the vehicle for two blocks before he “curbed” 

it. The testimony does not support a finding that defendant ignored the police’s attempt to 

curb his vehicle for two blocks. Additionally, Officer Perez’s trial testimony clarifies that 

“curb” was when he “turned on the lights and we curbed him.” Officer Perez stated that he 

did not turn the lights on when the vehicle turned in front of him, but he followed the vehicle 

for “around a block.” Officer Hagen testified consistently, stating that he ran defendant’s 

license plate before the vehicle was curbed. Since the testimony at both the suppression 

hearing and at trial show that defendant immediately pulled over when the officers activated 

the lights, the trial court’s factual finding at the suppression hearing that a chase occurred is 

against the manifest weight of the evidence. 

¶ 28 Having concluded that defendant did not attempt to evade the police officers, the 

remaining basis for Officer Perez’s search of the vehicle was defendant’s furtive movement 

toward the rear pouch of the passenger seat. When approaching defendant’s vehicle, Officer 

Perez testified that he observed defendant reach toward the rear pouch of the passenger seat. 

He did not see a firearm in defendant’s hand nor did he testify that the weapon appeared in 

plain view. During the traffic stop, defendant was quiet and compliant with the officers’

requests. It is uncontested that the police officers had a basis for the initial traffic stop after 

defendant failed to stop. Defendant complied when Officer Perez asked him to exit the 

vehicle. When asked on redirect why he asked defendant to step out of the vehicle after 

seeing defendant reach toward the rear of the front passenger seat, Officer Perez stated, “for 

officer safety.” Officer Perez did not offer any articulable basis for searching the vehicle.

¶ 29 “Although furtive movements may be considered justification for performing a 

warrantless search when coupled with other circumstances tending to show probable cause 
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[citations], looks, gestures, and movements taken alone are insufficient to constitute probable 

cause to search since they may be innocent [citation].” People v. Creagh, 214 Ill. App. 3d 

744, 747-48 (1991). “ ‘[T]o constitute probable cause for an arrest or search, a “furtive 

gesture” such as a motorist’s act of bending over inside his car must be invested with guilty 

significance either by specific information known to the officer or by additional suspicious 

circumstances observed by him.’ ” People v. Collins, 53 Ill. App. 3d 253, 255 (1977) 

(quoting Gallik v. Superior Court, 489 P.2d 573, 575 (Cal. 1971)). 

¶ 30 We find the decision in People v. Brown, 190 Ill. App. 3d 511 (1989), instructive. There, 

the defendant was pulled over after speeding on Interstate 290. “As the officer approached 

the vehicle, he saw defendant was behind the steering wheel and another person was in the 

front passenger seat. Defendant reached up toward the dashboard with his right hand and 

then down to the floor on the passenger’s side. The officer did not see any object in 

defendant’s hand.” Id. at 513. The defendant complied with the officer’s request for his 

license and to step out of the vehicle. The officer conducted a pat-down search of the 

defendant and felt a hard object in a jacket pocket. The defendant moved his hand toward his 

pocket, but the officer stopped him, ordered him to put his hands on the vehicle, and pulled 

his service weapon. Id. The officer searched the defendant and found keys, sunglasses, 

matches, and two rolled cigarettes. The officer also searched the vehicle and found a radar 

detector on the floor by the passenger seat. Id. When asked if he observed anything unusual 

about the defendant prior to the pat-down, the officer only noted the movement from the dash 

to the floor and he did not see anything in the defendant’s hand. Id. The trial court found that 

the officer had no lawful basis to search the defendant and suppressed the evidence. Id. at 

514. 

¶ 31 The reviewing court affirmed, rejecting the State’s reliance on the defendant’s movement 

in his vehicle to justify the search. “If vague movements within a traffic violator’s vehicle are 

considered sufficient, without other facts suggesting possible danger to the officer, to conduct 

even a limited search of the violator’s person, similar unwarranted police intrusions of this 

nature would surely be generated.” Id. at 515. 

¶ 32 In Creagh, the defendant was stopped for a routine traffic violation and subsequently 

charged with possession of a controlled substance. At the hearing on the defendant’s motion 

to suppress, the police officer testified that he observed the defendant shift in his seat as if the 

defendant was putting something in his pants. The officer did not see the defendant’s hands, 

just the movement of the defendant’s upper body. Creagh, 214 Ill. App. 3d at 745-46. The 

officer asked the defendant to step out of the vehicle and told the defendant of the movement 

he observed. The defendant stated he moved a check onto the dashboard. The officer 

observed a bulge in the defendant’s pocket and he conducted a pat-down search. He felt that 

the bulge was soft and did not appear to be a firearm, and he recovered several small bags of 

a white powder. The trial court denied the defendant’s motion.

¶ 33 On appeal, the reviewing court held that the trial court erred in denying the defendant’s 

motion to suppress evidence. The court found that the police officer lacked probable cause to 

search the defendant’s pants pocket. “Even if defendant’s movements may be characterized 

as ‘furtive,’ there was no evidence of other circumstances tending to show probable cause. 

[Citation.] Consequently, defendant’s act of putting something in his pants pocket can clearly 

be viewed as innocent, and the search cannot be justified on this basis.” Id. at 748. The court 

noted that the officer did not testify that he was in fear for his safety and there was no 
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evidence to show that the officer reasonably believed that the defendant may have been 

armed and dangerous. Id. 

¶ 34 In Collins, 53 Ill. App. 3d 253, the defendant was charged with possession of a substance 

containing cannabis following a traffic stop for failing to stop at a stop sign. The officer 

testified at the hearing on the defendant’s motion to suppress that he followed the defendant 

for a block and then activated his lights. The defendant continued for another half of a block 

before pulling over by a curb and parking outside his home. The officer stated that he saw the 

defendant lean forward and to the right, reaching over the passenger seat. When the officer 

reached the car, he asked the defendant to step out of the vehicle and stand near the rear of 

the car. The officer then walked toward the passenger side and observed a brown paper bag. 

The officer opened the door, took the bag, and opened it, finding three plastic bags of 

cannabis. The trial court granted the defendant’s motion to suppress evidence. Id. at 253-54. 

¶ 35 The reviewing court affirmed, concluding that “[a]s far as the record shows, defendant’s 

car was searched only because he bent down after stopping. If we were to hold that such 

conduct constituted probable cause, then almost every motorist stopped for a violation of the 

traffic laws would be subject to having his person and automobile searched by the arresting 

officer.” Id. at 256. 

¶ 36 In the instant case, the articulated basis for searching defendant’s car was that Officer 

Perez observed defendant reach toward the rear of the passenger seat. Defendant was quiet 

and compliant. When asked why he asked defendant to step out of the vehicle, Officer Perez 

simply stated, “for officer safety,” but offered no other specific or articulable facts to support 

his belief that he feared for his safety. He never saw a firearm in defendant’s hand. It is clear 

that the only basis used for the search was defendant’s movement in the vehicle. Under an 

objective review, we find that based on defendant’s movement in the car, there was no 

reasonable basis for Officer Perez to engage in a search of defendant’s vehicle. Accordingly, 

we hold that the trial court erred in denying defendant’s motion to quash arrest and suppress 

evidence. 

¶ 37 Because we have found that defendant’s motion to quash arrest and suppress evidence 

should have been granted, we need not reach the other issues raised on appeal. 

¶ 38 Based on the foregoing, we reverse the trial court’s denial of the motion to quash arrest 

and suppress evidence. We therefore reverse defendant’s conviction and vacate his sentence. 

See People v. Trisby, 2013 IL App (1st) 112552, ¶ 19. We do so because prior to the recovery 

of the firearm during the unlawful search, no evidence existed that the charged offenses of 

AUUW and UUWF had occurred. 

¶ 39 Reversed.