No. 1-09-0518 FI FTH DIVI SI ON Dec ember

23, 2010 No. 1-09-0518

_____________________________________________________________________________ I N THE APPEL LATE COURT OF I L L I NOI S FI RST J UDI CI AL

DI STRI CT

_____________________________________________________________________________ THE PEOPL E OF THE STATE OF I L L I NOI S, ) Appea l from the

) Circuit Court of Plaintiff-Appellant, ) Cook County , I llinois
. ) ) ) No. 07 CR 05097 v. ) ) RON J OHNSON, ) Honora ble ) Mary

M. Br osnahan, Def endant- Appellee
. ) J udg e Presiding
.

_____________________________________________________________________________

J USTI CE J OSEPH GORDON deliver ed the judg ment of the c ourt, with opinion. J ustices Howse and Epstein conc urre d in the judgme nt and opinion. OP INION Def endant, Ron Johns on, was a rre sted for a g g rava

ted unlawf

ul use of a w eapon, a

nd the trial court grante d defe ndant’s motion to quash that arr est and suppre ss evidence on the g round that he wa s improperly

restra ined by

handcuf fs duringhis searc h . On appe al, the State conte nds that the trial cour

t erre d in gr antingdefe ndant’s motion to quash arr est and suppre ss evidence beca use: (1) the office rs prope rly detained a

nd sear ched de fenda

nt pursuant to an investig atoryNo. 1-09-0518

Terr y stop; and (2) the a

rre sting off

icer s had proba

ble ca use to arr est defe ndant for obstruc ting a peac e off icer . For the followingrea sons, we disagree with the State’s contention that the
arr estingoffice r prope rly

handcuf fed a nd sear ched de fenda

nt pursuant to an investig atory stop, but agree with the State that the offic er ha d probable cause to arre st defenda nt for obstructinga peac e off icer . There fore , handcuf

fingdefe ndant at the time of his appr ehension wa s lawful. BA CKGROUND On Fe bruar

y 28, 2007, defe ndant was c harg ed with nine counts of a g g ravated unlawf ul use of a wea pon, arisingfrom an inc ident which occ urre d on Fe bruar y 19, 2007. In response to the cha rg es, def endant f iled a motion to quash arr est and suppre ss evidence in which he a lleg ed that his arre st was made w ithout the authority of a va lid searc h or ar

rest wa rra nt and without probable cause . A hea ringon defe ndant’s motion to quash arr est and suppre ss evidence was he ld on October 10, 2008. At the hea

ring , Chicag o police off

icer Marian H artley

testified that on the eveningin question, she was on patrol in plainclothes with Office r Ke vin Rake in an unmar ked police vehic le, in a hig h-cr ime are a tar g eted f or ag g ressive patrol. At 9:46 p.m., Office r Ha rtley made a traff ic stop of an older , white, four- door Chevy at 71st Street and Hoy

ne Ave nue, af

ter the ca r fa iled to come to a c omplete stop at a stop sig n. After Offic er H artley

activate d the ca

r’s
emer g ency

lights, the Chevy

pulled over a

nd both office rs exited their vehicle. A s Offic er Har tley approa ched the Chevy , all she could see was the ba ck of the heads of the two individuals sitti ngin the car , and she c ould not see if either of them had a

ny wea pons or drug s. Aside from the traf fic violation, Off

icer Har tley did not see the two oc cupants of the vehicle br eak a ny laws. -2-No. 1-09-0518

As Off icer Har tley was a bout to ask the driver

for his license , defe ndant, who wa s in the passeng er se at, exited the vehicle a nd started r

unning. She te stified that less than a se cond or two elapse d betwee n the time that she wa lked up to the vehicle and the time that def endant r an out of the passeng er side. O ffice r Ha rtley did not ex pect de fenda

nt to run out of the vehicle , and did not
see a ny thing in def

endant’ s hands or on his per son, and the off icer testified that she did not know why he wa s running . She immediately g ot into the police vehicle a nd started to follow defe ndant, while Of

fice r Rake r an af

ter him. Off

icer Rake c aug ht defe ndant less than a bloc k
awa y , and the of

fice rs then deta ined and ha ndcuff ed him for of

fice r saf ety . At that point, Office r Rake did a pr otective pat down and discove red a gun on the front side of

defe ndant’s wa istband. The pat down that Offic er H artley observe d her pa

rtner pe rfor

m consisted of movinghis hand
acr oss defe ndant’s wa ist. Office r Ha rtley further testified that the police of fice rs put handcuf

fs on defe ndant bec ause the y wer e in a hig h-cr ime are a, re plete with g ener al cr ime, narc otic and g angactivity , and did not know what de fenda nt had on his person or why he wa s fleeing
. Def endant wa s place d into custody afte r the off

icer s found the gun, and Of fice r Rake the n perf ormed a custodial sear ch of de fenda nt. When the office rs re turned to the sce ne whe re the y had stopped the white Chevy , the driver had lef t. Offic er H artley

acknow ledg ed g iving he r testimony at a pr eliminary

hear ing on F ebrua

ry 26, 2007. Acc ordingto defe ndant, that testimony implied that defenda

nt’s pat down wa s perf ormed a fter he was take n into custody . The off icer admitted that she had pr eviously testified as follows: "A . My

partne r starte d to follow [defendant] on foot, and I drove a round -3-No. 1-09-0518

and we eventua lly

appre hended him and pla ced him into custody
. Q. Was a pat down c ustodial searc h perf ormed? A. Yes. Q. What was discover ed? A. One nine milli meter stee l handgun." Although he r pre vious testimony may have sug g ested that the se arc h was incide nt to an
arr est, Off

icer Har tley stated, at the he aringon the motion to quash arre st and suppress e vidence , that when the of

fice rs put handcuf

fs on def endant a nd perf ormed the pr otective pat down, he wa s not officially

under a rre st. She also testified that she and he r par tner pre pare d a police r eport afte r the incide nt, which stated:

"RO the n conducte d an off icer safe ty chec k of [defenda

nt’s] person which
reve aled one L arson nine millimeter blue stee l handgun with a live round in the chambe r and thre e in the mag azine. RO located state d handgun in the front waistband of [defe ndant]. RO placed [defenda nt] into custody , rea d him his Miranda a

nd transporte d him to the 7th Dist rict for proce ssing." FollowingOffic er H artley ’s testimony , the def ense r ested a

nd the State made a

motion for direc ted ver dict, which the tria l court denie d. The State then r ested. Af ter c losing a

rguments, the trial court state d that defe ndant’s flig ht from the vehic le that was involved in the tra ffic stop in a high- crime a

rea war rante d the police of

fice rs to do an investig atory stop of defe ndant. The c ourt subsequently

stated that it had " not been g iven a r eason to justify that cuff ing which occ urre d prior to the prote ctive pat down, so [the cour t found] that was an ar

rest without probable cause ." -4-No. 1-09-0518

Acc ording ly , the trial cour t gr anted de fenda

nt’s motion to quash arre st and suppress the ha ndg un. The State subseque ntly

filed a motion to rec onsider, which w as denie d. There afte r, the State filed a c ertifica

te of substantial impairment and a notice of a

ppeal, a nd later f iled a motion for leave to a file late notice of a ppeal doc keted unde r No. 1-09- 0518 and a late notice of appea l. ANALYSI S On appe al, the State conte nds that the trial cour t erre d in gr antingdefe ndant’s motion to quash ar rest and suppr ess evidenc e bec ause the re w as proba ble ca use to arr est defe ndant for obstructinga pea ce of

fice r af ter de fenda

nt suddenly

fled fr om a valid traf

fic stop as off

icer s approa ched. A lternatively , the State ar gues that eve n if the off icer s did not have proba

ble ca use to arre st defenda

nt, they proper ly detained a

nd sear ched de fenda

nt pursuant to a Terry investigatory

stop. Def endant r esponds that althoug h the offic ers ha d the rig ht to detain him pursuant to a Terrystop, there wa s no evidenc e to support a f inding of probable cause to arre st or that the pat down sea rch w as justified. Def

endant a lso maintains that the trial court cor rec tly found that handcuf finghim converte d the stop into an illega l arre st. As explained below, we disag ree with the State’s contention that handc uffingdefe ndant
was a proper restra int during a Terry

stop. Howeve r, we ag ree with the State that the offic ers ha d probable cause to arre st defenda nt at the time of his appre hension, so that further restra int beca me prope r to eff

ectuate the ar

rest. The trial c ourt’s finding s of fa ct pursuant to a motion to quash ar rest and suppr ess evidenc e will be upheld on a ppeal unless those f

indings a re a g ainst the manifest we ight of the -5-No. 1-09-0518

evidenc e. People v . Pitman , 211 I ll. 2d 502, 512, 813 N.E.2d 93, 100-01 (2004); People v

. Moore , 378 I ll. App. 3d 41, 46, 880 N.E.2d 229, 233 (2007). This de fer ential standar d
rec og nizes that the trial court is in a superior position t o deter

mine the cr edibility

of the witnesse s and we ight to be g iven their testimony , observe their deme anor, a nd resolve c onflicts in their testimony
. Pitman , 211 I ll. 2d at 512, 813 N.E.2d at 100-01. Ne verthe less, althoug h we a re defe rential to finding s of fa ct made by the trial cour

t, we re view de novo the application of the law to those fa cts to determine if suppression is warr anted unde r those fa cts. People v . Gherna , 203 I ll. 2d 165, 175, 784 N.E.2d 799, 805 (2003). Ac cording ly , the supreme court ha s held that the trial cour

t’s ultimate determinations with respe ct to probable cause or re asonable suspicion
are revie wed de novo
. People v . Sorenson , 196 I ll. 2d 425, 431, 753 N.E.2d 1078, 1083 (2001) (citing Ornelas v. United States , 517 U.S. 690, 699 (1996)). Havingaddre ssed the standa rd of r eview, w e ca

n now turn to the substantive issues involved in this appeal. We first addr ess the question of whe ther the tria l court er red in finding that Offic er Rake ’s ac tions in handcuffing defe ndant bef

ore movinghis hand ac ross defe ndant’s waist constituted an ar

rest, ra ther than a Terrystop. The four th amendment to the United States Constituti on provides " [t ]he right of the people to be se cure in their persons, house s, paper s, and ef fec ts, ag ainst unrea sonable sea rche s [and] seizures." U.S. Const., amend. I V. Simil arly , the I llinois Constitution provides citizens with "the r ight to be se cure in their persons, house s, paper s, and other posse ssions ag ainst
unrea sonable sea

rche s and seizures." I ll. Const . 1970, art. I , §6. Reasonable ness, under those provisions, require s that "[a]n arre st ex ecute d without a war rant is valid only

if supported by -6-No. 1-09-0518

probable cause ." People v . Jack son , 232 I ll. 2d 246, 274-75, 903 N.E.2d 388, 403 (2009). Howeve r, a limited exception to that require ment was re cog nized by the Supreme Court in Terry v. Ohio , 392 U.S. 1, 22 (1968), whe re the Court held that a police of fice r, under

appropr iate circ umstances, may

briefly stop a person f

or investig atory

purposes a

nd, if nec essar

y for sa fety , conduct a limit ed prote ctive sea

rch f or we apons. See a lso People v . Flowers , 179 I ll. 2d 257, 262, 688 N.E.2d 626, 629 (1997) . Under this ex ception, a police office r may briefly detain an individual for tempora

ry questioning if the office r re asonably believes that the person ha s committed, or is about to commit, a crime. Terry , 392 U.S. at 22. Fur ther, if the of

fice r
rea sonably

believes that the person de tained is arme d and dang erous, the of fice r may subject the person to a limited sea

rch f or we apons, commonly

ref err ed to as a

"f risk." Terry , 392 U.S. at 24. In addition, the Supreme Court has he ld, in Illinois v. W ardlow , 528 U.S. 119, 124-25 (2000), that when a

n individual flees fr om police in a hig h-crime are a, a police office r has the r equisite
rea sonable suspicion that the individual was involved in cr iminal activity to conduct a Terrystop. In this case, de fenda

nt ran fr om police offic ers in an a rea that no one disputes was r eplete with ge nera l crime, but also nar cotic and g angactivity . Consideringthat the stop took place in a high- crime a

rea , and def

endant f led from the police office rs when the y approa ched the vehicle in which he w as a pa sseng er, w e agree with the trial court that unde r W ardlow , the offic ers ha d the requisite re asonable suspicion to detain defe ndant for a Terryinvestigatory stop. Defe ndant does not challeng e the tria l court’s findingthat the offic ers we re justified in deta ining him for temporar y questioning, but maintains that the of fice rs did not have a

rea sonable be lief that he
was a rmed a nd dang erous, a s require d befor e conduc ting a protec tive pat down. More over, -7-No. 1-09-0518

defe ndant urg es that the trial c ourt was c orre ct in rulingthat he wa s arr ested whe n Offic er Rake handcuf fed him, and the ref

ore, the protec tive pat down wa s perf ormed a fter a

n arr est. The State contends that the of

fice rs wer e justified in stopping a nd friskingdefe ndant to ensure office r safe ty beca use he f led from police duringa tra ffic stop in a high-cr ime are a. F urther, the State maintains that the offic ers a cted r easona bly in handcuf

fingdefe ndant for of

fice r saf ety when they detained him and that such did not constitute an arr est. For the re asons below, we ag ree with defe ndant that the trial c ourt was c orre ct in findingthat the handc uffing of def endant c onstitut ed
an ar rest. In addre ssing the issue of whether the handc uffing

of def endant c onstitut ed an a

rre st, we note that the supre me cour t has held that an a

rre st occurs when a pe rson’s fr eedom of movement has bee n restra ined by

means of phy sical for ce or a show of a

uthority
. People v . Meloc k, 149 I ll. 2d 423, 436-37, 599 N.E.2d 941, 946 ( 1992). Althoug h a per son detained pur suant to a Terry stop is no more fre e to leave than if he w ere place d under f ull arre st (

People v . Paskins , 154 I ll. App. 3d 417, 422, 506 N.E.2d 1037, 1040 (1987) ), a Terrystop must be lim ited in scope a nd duration bec ause it is an investig ative dete ntion, which must be temporar y and last no long er tha

n
nece ssary to effe ctuate the purpose of the stop ( Florida v. Roye r , 460 U.S. 491, 500 (1983)). Moreove r, a r estriction of moveme nt that is brief may amount to an ar

rest rather than a Terry stop if it is acc ompanied by use of f orce usually

associate d with an ar

rest, unless such use of forc e wa s rea sonable in lig ht of the circ umstances surr ounding the stop. See People v . Delaware , 314 I ll. App. 3d 363, 370, 731 N.E.2d 904, 911 (2000); People v . Starks , 190 I ll. App. 3d 503, 509, 546 N.E.2d 71, 76 (1989) . For instance, c ourts have he ld that handcuf fingis the ty

pe of -8-No. 1-09-0518

action that may

conver t an investig atory

stop into an arre st beca

use it heig htens the degree of intrusion and is not ge nera lly part of a stop. People v . W

ells , 403 I ll. App. 3d 849, 857, 934 N.E.2d 1015, 1024 (2010) ; Delaware , 314 I ll. App. 3d at 370, 731 N.E.2d at 911; People v

. Tortori ci , 205 I ll. App. 3d 625, 628, 563 N.E.2d 1230, 1231-32 (1990) . Howeve r, handc uffingis proper duringan investig atory

stop only when it is a nec essar

y restra int to effec tuate the stop and foster the safe ty

of the off icer s. See, e.g. , Starks , 190 I ll. App. 3d at 509, 546 N.E.2d at 76. Consist ent with this analy sis, the court in Delaware , 314 I ll. App. 3d at 370, 731 N.E.2d at 911, and Tortori ci , 205 I ll. App. 3d at 628, 563 N.E.2d at 1231-32, f ound that the use of handcuf fs was pa rt of an a rre st where the police ha d no indication that defe ndant was a rmed a nd dang erous at the time so as to justi fy that restra int for re asons of saf ety . Corresponding ly , in Starks , 190 I ll. App. 3d at 509, 546 N.E.2d at 76, the c ourt held that the use of handcuf fs was not
an ar rest, af ter findingit was rea sonable within the bounds of a Terrystop in a detention wher e the police ha d rea son to believe de fenda nt was ar med af ter matc hing him to a r obbery suspect’s descr iption. In Delaware , 314 I ll. App. 3d at 370, 731 N.E.2d at 911, the c ourt held that handc uffing defe ndant conve rted a

justified Terrystop into an ill eg al ar rest bec ause a

t that time, police had found no we apons or c ontraba nd on his person and ha d no rea sonable ba sis for their a ction. In that case , three police off icer s hear d gunshots coming f rom the vicinity

of a building , drove to the parkinglot of that building, and c hased se vera l men inside it, but l ost them in the staircase
. Delaware , 314 I ll. App. 3d at 365, 731 N.E.2d at 907. The office rs then re turned to the pa rking lot and spotted a white jee p in another pa rkinglot. Delaware , 314 I ll. App. 3d at 365, 731 -9-No. 1-09-0518

N.E.2d at 907. As the of fice rs appr oache d the jeep, a man exited the vehicle a

nd ran into a building by

that parkinglot. Delaware , 314 I ll. App. 3d at 365, 731 N.E.2d at 907. The office rs chase d him until an apa

rtment on the third floor, whe re the y stopped the man a

nd conducte d a protec tive sear ch, but they found no we apons or c ontrolled substance s on him. Delaware , 314 I ll. App. 3d at 366, 731 N.E.2d at 907. Inside the apa rtment, the off

icer s handcuf

fed de fenda

nt and took him back into the par king lot, whe re he consente d to a sea rch of his car, f rom which the office rs re trieved c ocaine
. Delaware , 314 I ll. App. 3d at 366, 731 N.E.2d at 907-08. The c ourt, in ruling that the trial court e rre d in deny ing de fenda

nt’s motion to s uppress evidenc e, found that the office rs wer e justified to detain that def endant f or a Terrystop, but that handcuf finghim constitut ed an a

rre st without probable ca

use, and it stated: "[T]he police had no spe cific a nd leg itimate basis to continue to detain defe ndant. We find, based on the rec ord, that the a rre st occurr ed whe n the office rs handc uffe d defe ndant in the third-floor a partment. The office r testified to that effe ct [citation] , and the show of authority by the three uniformed, a

rmed police off icer s would permit a re asonable person to conc lude that once he wa s handcuf fed by the ar med police of

fice rs he wa s not free to leave." Delaware , 314 I ll. App. 3d at 371, 731 N.E.2d at 912. Simi larly , the cour

t in Tortori ci , 205 I ll. App. 3d at 628, 563 N.E.2d at 1231-32, f ound that a Terrystop was conve rted into an a rre st when an of

fice r handc uffe d defe ndant and told him that he wa s under a

rre st, beca

use, at that point, the off

icer had found no w eapons on de fenda nt, which would have justified such an a ction. In that case , defe ndant’s ca r collided with a pic kup -10-No. 1-09-0518

truck a fter he fell aslee p while driving , and a state trooper came to the scene and aske d both drivers to g et into the police ca r to answe r questions. Tortori ci , 205 I ll. App. 3d at 626, 563 N.E.2d at 1231. When the off icer told defenda

nt to take any

thing of value f rom his inoperable
car , defe ndant picked up a jacke t, with both palms up, and laid it across his knees. Tortori ci , 205 I ll. App. 3d at 627, 563 N.E.2d at 1231. De fenda nt refuse d to answer

when the of

fice r aske d if he had a ny wea pons or contra

band, and the office r re ache d over, pic ked up the jac ket and told defe ndant to exitthe ca

r. Tortori ci , 205 I ll. App. 3d at 627, 563 N.E.2d at 1231. At that time, the offic er notice d that the jacke t was hea vy and ther e wa s something inside it, but he did not observe any

wea pons or contra

band inside the jac ket. Tortori ci , 205 I ll. App. 3d at 627, 563 N.E.2d at 1231. The office r then did a pat down sear ch of de fenda nt, told him that he wa s under
arr est, put handcuf

fs on his wrists behind his back, took him to the police ca r, and f astene d his seat be lt. Tortori ci , 205 I ll. App. 3d at 627, 563 N.E.2d at 1231. The police off icer then
sear ched de fenda

nt’s jacke t and found a

loaded gun, a knife and a c ocaine pipe. Tortori ci , 205 I ll. App. 3d at 627, 563 N.E.2d at 1231. The c ourt, in finding that the trial court ha d corr ectly g rante d a motion to suppress evidenc e bec ause the office r’s a ctions amounted to an a rre st without probable ca

use, noted: "When we analy

ze the events in the c ase at bar, we conclude that a Terrystop may

have oc curr ed whe n the offic er took the ja cket, or dere d defe ndant out of the c ar, a nd frisked him. When the off icer said ‘You a

re under a rre st’ and put handc uffs on de fenda nt, the temporar

y stop was conve rted into an arr est. We cannot imag ine what more an off icer would do to -11-No. 1-09-0518

acc omplish an arre st than to advise the ar restee , to handcuf

f him, and to strap him into t he police c ar w ith a seat be lt. *** Clearly , had the of

fice r sea rche d the jacke t first and found the gun and/or other

contra band, a la wful ar rest could have followe d. The proble m here is that the arr est came bef ore c ause f

or the a rre st was discover ed. The trial court c orre ctly

g rante d the motion to suppress." Tortori ci , 205 I ll. App. 3d at 628, 563 N.E.2d at 1231-32. In contra st, the court in Starks , 190 I ll. App. 3d at 509, 546 N.E.2d at 76, he ld that handcuf fingthe def

endants wa s within the boundaries of a lawful Terrystop beca

use they matched the descr iption of armed r obbers, whic h incre ased the likelihood that they wer e ar med and dang erous, a

nd the use of the handcuf fs was ne cessa

ry to ensure of

fice r saf ety duringthe detention. The police office r in Starks , 190 I ll. App. 3d at 505, 546 N.E.2d at 73, wa s g iven the descr iption of a robber

y suspect whe n he sawa ca r leaving a

parkinglot near the scene of the robber y containingfour men, one of whom fit the desc ription of the suspect. Af ter the of fice r pulled the ca

r over and re quested ba ckup units, another of fice r noticed that defe ndant’s clothing matched the descr iption of the robber ’s clothing
. Starks , 190 I ll. App. 3d at 506, 546 N.E.2d at 74. The sec ond office r then orde red de fenda nt out of the vehicle , patted him down and plac ed him in handcuffs. Starks , 190 I ll. App. 3d at 506, 546 N.E.2d at 74. A se arc h of the c ar r evea led a pistol, and a late r sea

rch of defe ndant re veale d an amount of c ash close to what had bee n taken from the r obbery

victim. Starks , 190 I ll. App. 3d at 506, 546 N.E.2d at 74. The c ourt found that the of fice rs’ a ctions toward de fenda nt were a Terrystop, and not an -12-No. 1-09-0518

arr est, bec ause " [i ]twould be par adoxical to give police the authority to detain pursuant to an investigatory

stop y et deny

them the use of f

orce that may

be nec essar

y to make that dete ntion." Starks , 190 I ll. App. 3d at 509, 546 N.E.2d at 76. The court e x plained:

"I n [t hat] case, [the offic er] approa ched a car that may have c ontained the perpe trator of

an ar med robbe ry . When she viewe d a man matc hing the descr iption of the suspect, it was re asonable for he r to believe that the man mig ht still be ar med. [Ci tation.] The bra

ndishing of the wea

pon and the use of handcuf fs on the occ upants of the c ar w as nec essar y for the pr otection of the office rs and se curity

of the sce ne. Police off

icer s are not require d to risk their safe ty by assuming tha

t suspects will submit quietly to questioning." Starks , 190 I ll. App. 3d at 509, 546 N.E.2d at 76. On balanc e, the f

acts in this case are most analog ous with those in Delaware , 314 I ll. App. 3d at 371, 731 N.E.2d at 912, and Tortori ci , 205 I ll. App. 3d at 628, 563 N.E.2d at 1231-32, and fa ctually

distinguishable f

rom Starks , 190 I ll. App. 3d at 509, 546 N.E.2d at 76. He re, a s in Delaware , 314 I ll. App. 3d at 371, 731 N.E.2d at 912, a nd Tortori ci , 205 I ll. App. 3d at 628, 563 N.E.2d at 1231-32, the circ umstances we re insuff icient to cre ate a

rea sonable infe renc e that defe ndant was a

rmed a nd dang erous be fore Offic er Rake handcuf fed him. As pre viously

noted, defe ndant was a

passeng er in a

vehicle stoppe d for a

traff ic offe nse and r an fr om the car as the office rs appr oache d. The fa cts are expli cit that when Of fice r Rake c aught defe ndant, the off icer first handc uffe d him and only there afte r moved his hand a cross de fenda nt’s waist, which led to the discover

y that defe ndant had a

gun in his possession. There is no indication that the off icer -13-No. 1-09-0518

had any visual cues to lea d him to suspect defe ndant’s possession of a wea pon, nor any

resistanc e by defe ndant af

ter his appr ehension, a s to nece ssitate the use of e x terna l restra int. Although this
case differ s from Tortori ci , 205 I ll. App. 3d at 628, 563 N.E.2d at 1231-32, in that the police in this case did not advise de fenda nt that he was unde r ar

rest or take him to the police vehic le at the time after placinghim in handcuffs, those f actor s are not disposit ive. In fac t, defe ndant in Delaware , 314 I ll. App. 3d at 366, 731 N.E.2d at 908, wa s also not told that he was under arr est or take n to a police ve hicle at the time of his arre st, and that court ne verthe less held that he wa s
arr ested at the time he was pla ced into handc uffs. More over, unlike de fenda nt in Starks , 190 I ll. App. 3d at 509, 546 N.E.2d at 76, defe ndant her e did not match the de scription of any arme d suspects known to the off icer s at that time, nor was he in the vicinity of a r ece nt violent crime, so as to provide justification to handc uff him duringthe stop. Instead, the ve hicle in which defe ndant was a

passeng er ha d been stoppe d for a traff ic violation, not to investi g ate a violent crime, a nd Offic er H artley

admitted that she did not know why defe ndant was r

unning. A lthough defe ndant’s flig ht took place in a high-cr ime are a, def endant in Delaware , 314 I ll. App. 3d at 365, 731 N.E.2d at 907, fle d from police in the vic inity of a buildingwher e gunshots had been hear d, and the c ourt still held that the officer s were not justi fied in handc uffingdefe ndant as pa rt of an inve stigatory

stop. Thus, as in Delaware , 314 I ll. App. 3d at 365-71, 731 N.E.2d at 907-12, defe ndant’s flig ht in a high- crime a rea did not provide sufficie nt justi fication to establish fear that defe ndant was a

rmed a nd dang erous a s to justi fy handcuf fingas a sa fety

measure . Acc ording ly , the trial cour t was cor rec t in finding that de fenda nt’s handcuf

fingconstituted an
arr est. -14-No. 1-09-0518

Neve rtheless, the State ma intains that the office rs ac ted re asonably in handcuf

fing defe ndant af

ter de taining him, and suc h did not constitut e an a rre st, and cites Arizona v. Johnson , 555 U.S. ___, ___, 129 S. C t. 781, 785 (2009), Paskins , 154 I ll. App. 3d at 420, 506 N.E.2d at 1038 (1987), a

nd United States v. Sande rs , 994 F.2d 200, 201- 02 (5th Cir. 1993), in support of that contention. Howe ver, the State’s re liance on those decisions is misplaced bec ause in e ach
case , the offic ers’ rea son to handcuff defe ndant duringa Terrystop was base d on marke dly strong er indicators of dang er tha n are prese nt here , such as the pr ior discover y of a w eapon ( Johnson , 555 U.S. at ___, 129 S. Ct . at 788), or that defe ndant matche d the desc ription of an
arme d suspect (

Paskins , 154 I ll. App. 3d at 423, 506 N.E.2d at 1041; Sanders , 994 F.2d at 207- 08). In Johnson , 555 U.S. at ___, 129 S. Ct . at 784-85, de fenda nt was a pa sseng er in a

vehicle that had bee n pulled over f or a c ivil infraction, and one of the off icer s noticed that he kept his eyes on the off

icer s duringthe stop. The off icer also noticed that de fenda nt’s clothing w as considere d consistent with ga ngmembership and that he had a scanne r in his pocket. Johnson , 555 U.S. at ___, 129 S. Ct . at 785. Afte r the off icer asked de fenda

nt to ex it the vehicle, she patted him down and f

elt the butt of a gun on his waist, at which point defe ndant strug g led and the offic er ha

ndcuff ed him. Johnson , 555 U.S. at ___, 129 S. Ct . at 785. The Supre me Court, in holding that de fenda

nt’s sear ch wa s within the bounds of a valid Terrystop, notwithst andingthe handcuf fing , stated that the off

icer was not re quired to g ive def endant a n opportunity

to depar t afte r he e x ited the vehicle without first ensuringthat, in doing so, she w as not allowinga dang erous pe rson to g et behind her
. Johnson , 555 at ___, 129 S. Ct. at 788. In contra st, defe ndant in this case, who did not strug g le duringthe sea rch, w as handc uffe d befor e Of fice r -15-No. 1-09-0518

Rake fe lt a wea

pon on his waistband, and up to that point, he had not g iven any indication that he
was a rmed or e ng ag ed in g angactivity
. This case is also fac tually distinguishable f

rom Paskins , 154 I ll. App. 3d at 420, 506 N.E.2d at 1038, whe re a

n office r stopped two def endants who matched the de scription of burg lary suspects, within a fe w miles and less than one hour fr om the crime. The office r orde red them to stop, and a pat down r evea led a ha rd bulg e in one of

defe ndants’ jac ket, which he descr ibed as " my

stuff." Paskins , 154 I ll. App. 3d at 423, 506 N.E.2d at 1040. Upon r eac hing into the jacket poc ket, the off icer found a c lump of jewelry , and he pla ced both men in ha ndcuff s almost contemporane ously with the pat down proc edure
. Paskins , 154 I ll. App. 3d at 423, 506 N.E.2d at 1041. The court found that under the c ircumstance s, handcuf fingdefe ndants was justified within the bounds of an investig atory stop to confirm or dispel the possibility that they had conc eale d wea

pons. Paskins , 154 I ll. App. 3d at 423, 506 N.E.2d at 1041. In this case, on the other ha

nd, defe ndant did not match the desc ription of any known suspects who ma

y be
arme d and dang erous, a

nd he wa s handcuf

fed be fore Offic er Rake patted him down and discovere d a we apon. Thus, unlike the of fice r in Paskins , 154 I ll. App. 3d at 423, 506 N.E.2d at 1041, Offic er Rake did not have a r eason to be lieve that def endant bor e a c oncea led wea pon befor e handc uffinghim. Finally , the dec ision in Sanders , 994 F.2d at 202-08, is not controlling. In that case , police off icer s responde d to a ca ll of a suspicious person with a gun at a groce ry store, and defe ndant was the only

one on the pr emises matchingthat descr iption. Sanders , 994 F.2d at 202. One of the offic ers ha

ndcuff ed def endant a nd frisked him for

wea pons after he re fused to g et -16-No. 1-09-0518

down on the g round, but defe ndant was a dvised that he wa s not under ar rest at that point. Sanders , 994 F.2d at 202. The cour t found that, under those circ umstances, ha ndcuff ing defe ndant was r easona

ble in the cour se of a

n investigatory

stop. Sanders , 994 F.2d at 207-08. Howeve r, we note that dec isions from lower fe dera l courts ar e not binding on this cour t ( Travelers InsuranceCo. v. Eljer Manufacturing, Inc. , 197 I ll. 2d 278, 302, 757 N.E.2d 481, 498 (2001)) , and in any

event, the de cision in Sanders , 994 F.2d at 207-08, is fac tually distinguishable f

rom this case, where defe ndant did not match the desc ription of any person suspected of

car rying a conce aled we apon whe n he wa s handcuf fed. Havingdeter

mined that Offic er Rake ’s ac tions in handcuffingdefe ndant constituted an
arr est, rathe r than a Terrystop, we must now addre ss defe ndant’s conte ntion that there wa s an insufficient ba sis to arrest de fenda nt when he f

led from the stoppe d automobile. As shall be discussed below, w e submit that, in fact, proba ble ca use existed to jus tify

defe ndant’s ar

rest when he fled fr om the automobile. As previously

noted, proba

ble ca use must exi st to effe ct a va lid, warra ntless, arre st. Bec k v. Ohio , 379 U.S. 89, 91 (1964). Probable cause to arre st ex ists when the totality of the fa cts and circ umstances known to a police off

icer would lead a

person of rea sonable c aution to believe that the per son appre hended ha s committed a crime, a nd its ex istence depends on the totality of the circ umstances at the time of the ar rest. People v . W

ear , 229 I ll. 2d 545, 563-64, 893 N.E.2d 631, 642 (2008). F urther, pr obable c ause is an obje ctive standa rd, and a police off

icer ’s subjective belief r eg ardingits ex istence is not deter minative. People v . Chapman , 194 I ll. 2d 186, 218-19, 743 N.E.2d 48, 68 (2000)
. -17-No. 1-09-0518

The State c ontends that eve n if placinghandcuf fs on def endant wa s not a justified restra int pursuant to a Terrystop, it was never theless justified as a va lid arre st. I n support of that contention, the State maintains that, althoug h he wa s a passe ng er, when def endant f led from the vehicle that had bee n lawfully stopped for a

traff ic violation, the police off icer s had proba

ble
cause to arre st him for obstructinga pea ce of fice r by rea son of his flight, in violation of sec tion 31-1(a ) of the I llinois Criminal Code of 1961 (Code), which provides: "Aperson who know ingly resists or obstructs the pe rfor mance by one known to the person to be a

peac e off icer , firef ighte r, or c orre ctional institut ion employ ee of any authorized ac t within his officia l capa city commits a Class A misdemeanor." 720 I L CS 5/ 31-1(a ) (West 2008). We ag ree that although the use of ha ndcuff s in this case wa s not appropria te to detain defe ndant in a Terrystop, it was proper a s part of a lawful a rre st. As shall be more fully

explained below, the rule is clear that when a

n automobile is appre hended f

or a tra ffic stop, police have a valid rig ht to detain passeng ers a s well as the dr iver. See Johnson , 555 U.S. at ___, 129 S. Ct . at 786-788; People v . Harris , 228 I ll. 2d 222, 231, 886 N.E.2d 947, 954 (2008) . Consequently , if the passe ng er f lees, he is attempting to avoid de tention by an off icer who has a

valid rig ht to seiz e him. Since the police of fice r has the r ight to deta in him, flight by

that passeng er ha s been he ld to constitut e an of fense of obstruction of a

peac e office r, which c onstitut es a Class A misdemea nor. See People v . Holdman , 73 I ll. 2d 213, 222, 383 N.E.2d 155, 159 (1978) ; see a lso People v . Jones , 245 I ll. App. 3d 302, 306, 613 N.E.2d 354, 357 (1993). Thus, in this case , defe ndant’s attempted f light wa s an off

ense f or which a

rre st -18-No. 1-09-0518

beca me appr opriate. A ccor dingly , the use of ha ndcuff s was a pr oper r estraint pursua nt to an
arr est, eve n if it would have be en unre asonable if g aug ed under the rules of

appropr iate re straints duringa Terrystop. Def endant c ontends that his flight fr om the stopped vehicle did not obstruct the police office rs in violation of section 31-1(a ) of the Code beca use he w as not the driver

of the stopped vehicle, a nd althoug h the offic ers we re justified in deta ining the dr iver duringthe stop, they wer e not so justi fied in deta ining the pa sseng er. D efe ndant’s conte ntion is unpersuasive in point of fac t, beca use whe n a vehic le is lawfully detained, the passeng ers, a s well as the dr iver, a re subject to that detention. See Johnson , 555 U.S. at ___, 129 S. Ct . at 786-88; Harris , 228 I ll. 2d at 231, 886 N.E.2d at 954. The Supreme Court in Johnson , 555 U.S. at ___, 129 S. Ct . at 787-88, he ld that duringa traff ic stop, the police law fully detain eve ryone in the vehic le and do not nee d cause to suspect that a passe ng er is involved in criminal activity . As previously noted, the vehic le in which defe ndant was a

passeng er w as stopped for a civil infra ction and an of fice r aske d defe ndant to exitthe vehicle afte r noticingthat his clothing wa s consistent with ga ngaff iliation and that he had a sc anner

in his pocket. Johnson , 555 U.S. at ___, 129 S. Ct . at 784-85. Dur ing a pat down, the offic er discove red a

gun near defe ndant’s wa ist, and he wa s then cha rg ed with possession of a
wea pon by a prohibited possessor. Johnson , 555 U.S. at ___, 129 S. Ct . at 785. In upholding the va lidity

of def endant’ s sear ch pursua

nt to a Terry

stop, the Court observe d that althoug h office rs ef fec tuating a

traff ic stop do not have re ason to believe that passeng ers ha

ve committed a ve hicular of fense , the risk of a

violent encounter

in that setting " -19-No. 1-09-0518

‘stems not from the ordina ry rea ction of a motorist stopped for a speedingviolation, but from the fac t that evidence of a more serious cr ime might be unc overe d duringthe stop.’ " Johnson , 555 at ___, 129 S. Ct. at 787, quoti ng Maryland v. W ilson , 519 U.S. 408, 414 (1997). The Court then
rea soned that the motivation of a pa sseng er to pre vent discover y of such a crime just as great as that of the drive r, and that " ‘ as a pr actica l matter, the pa sseng ers a re a lrea dy stopped by

virtue of the stop of the vehic le,’ [citation] , so ‘the additional intrusion on the passeng er is minimal.’ " Johnson , 555 U.S. at ___, 129 S. Ct . at 787, quoting W ilson , 519 U.S. at 415. The Court also noted that in Brendlin v. California , 551 U.S. 249, 257 (2007), the Court held that a passeng er in a tra ffic stop is seized from the moment the ve hicle come s to a halt bec ause suc h a stop communicates to a

rea sonable pa sseng er that he is not free to leave. Johnson , 555 U.S. at ___, 129 S. Ct . at 788. It then conclude d that defe ndant was la wfully detained, by

virtue of the tr aff

ic stop, and there fore , the offic er w as justified in conductinga sea rch onc e she ha d rea son to believe that he wa s armed. Johnson , 555 U.S. at ___, 129 S. Ct . at 788. In Harris , 228 I ll. 2d at 232-38, 886 N.E.2d at 955- 58, the supreme court he ld that when a police off icer s stops a vehicle f

or a tra ffic violation, passe ng ers of that vehicle a

re la wfully seized, even if the re is no individualized suspicion of criminal activity on his part at the time of the stop. The police of

fice r in that ca se stopped a c ar, in whic h defe ndant was a passeng er, f

or makingan illeg al left turn a nd discovere d that the driver ’s license had bee n suspended or revoke d. Harris , 228 I ll. 2d at 225-26, 886 N.E.2d at 951. The office r then a sked def endant f or an identification card, a s was his usual pra ctice when ar restingthe driver

of a ve hicle, and a fter runninga sea

rch of his information, discovere d an outstandingwar rant for defe ndant. Harris , -20-No. 1-09-0518

228 I ll. 2d at 226, 886 N.E.2d at 951. De fenda nt was then plac ed under

arr est, and a

custodial
sear ch re veale d coca ine on his person a nd in the car
. Harris , 228 I ll. 2d at 226, 886 N.E.2d at 951. In holding that the e vidence discovere d as a r esult of the wa rra nt chec k was prope rly admitted at trial, the supre me cour t found that the wa

rra nt chec k did not violate defe ndant’s rig hts under the fourth amendment to be fre e fr om unrea sonable sea rch a nd seizure bec ause defe ndant had be en lawf

ully seized as a pa sseng er in a traff ic stop. Harris , 228 I ll. 2d at 238, 886 N.E.2d at 958. The c ourt observe d that "a passeng er is seized for fourth amendment purposes whe n the vehicle in whic h he is ridingis subject to a traf fic stop." (Emphasis adde d.) Harris , 228 I ll. 2d at 231, 886 N.E.2d at 954. In doing so, the court re lied on the Supreme Court’s r uling on this issue in Brendlin , 551 U.S. at 257, in which the Court found that " ‘any rea sonable pa sseng er’ would understand ‘ the police of

fice rs to be exerc ising c ontrol to the point that no one in the car was fr ee to depar t without poli ce pe rmission.’ " Harris , 228 I ll. 2d at 231, 886 N.E.2d at 954, quoting Brendlin , 551 U.S. at 257. In addition, the court he ld that since the off icer had proba

ble ca use to stop the car

that he obser

ved makingan illeg al left turn, the initial stop was lawf ul, and def

endant was, ther efor e, lawf

ully seized. Harris , 228 I ll. 2d at 232, 886 N.E.2d at 955. The c ourt then held that the wa

rra nt chec k did not infringe on defe ndant’s rights under the f ourth amendme nt, even though the police lac ked individualized suspicion because the seizure of de fenda nt was lawful at its i nception, it was of r easona ble dura tion and the war

rant c heck did not infring e on a protec ted privac y

interest. Harris , 228 I ll. 2d at 232-38, 886 N.E.2d at 955- 58. Simi larly to defe ndants in Johnson , 555 U.S. at ___, 129 S. Ct . at 786-88, a nd Harris , -21-No. 1-09-0518

228 I ll. 2d at 232-33, 886 N.E.2d at 955, de fenda nt in this case was law fully detained when the vehicle in whic h he wa s a passe ng er w as stopped. Of fice r Ha rtley initiated the a tra ffic stop a fter she obser ved the dr iver of a

white Chevy

fail to stop at a stop sign. A t that time, the office rs had probable cause to believe that the dr iver ha d committed a traf fic infr action and, the ref

ore, lawfully seized both the driver a

nd passeng er of

that vehicle. Harris , 228 I ll. 2d at 231-32, 886 N.E.2d at 954. Eve n without indivi dualized rea sonable suspicion that def endant ha d, himself, eng ag ed in cr iminal activity , the offic ers we re, at that time, just ified in approa chinghim and askinghim questions, as long a s they did not infringe on his protected pr ivacy rig hts and the stop
was re asonable in its duration. Harris , 228 I ll. 2d at 232-38, 886 N.E.2d at 955- 58. Thus, the fac t that he was not the dr iver who ha d committed the traff ic violation is irreleva

nt to the validity of his detention duringthe traf fic stop. As it shall be addre ssed below, it now follows that since the seizure wa s lawful at its inception, def

endant’ s attempt to evade the police in runningfrom the ve hicle g ave the office rs probable cause to arre st him for obstructingauthorized ac tion by a pea ce of

fice r in violation of section 31-1( a) of

the Code. Holdman , 73 I ll. 2d at 222-23, 383 N.E.2d at 159- 60; Jones , 245 I ll. App. 3d at 306-07, 613 N.E.2d at 357. Section 31-1(a ) has be en broa dly define d by

the supreme court to include a ny "phy sical act whic h imposes an obstacle which may impede, hinder , interrupt, pre vent or de lay the perf ormanc e of the office r’s duties." People v . Raby , 40 I ll. 2d 392, 399, 240 N.E.2d 595, 599 (1968). In addition, the supreme c ourt has held that f light fr om police offic ers is a phy sical ac t within the purview of the statute. Holdman , 73 I ll. 2d at 222, 383 N.E.2d at 159. -22-No. 1-09-0518

We rec og nize that flight fr om police is insufficient to establish proba ble ca use for violation of section 31-1(a ) whe n an off icer approa ches a

person to make a Terrystop without the re quisite suspicion to m ake the stop. People v . Moore , 286 I ll. App. 3d 649, 654, 676 N.E.2d 700, 704 (1997) . Howeve r, such f light does pr ovide police with proba ble ca use to arr est for obstruc ting a

peac e off icer if, befor e def

endant f led, the off

icer in question was justified in detainingdefe ndant at the time of the flig ht. Holdman , 73 I ll. 2d at 222-23, 383 N.E.2d at 159- 60; Jones , 245 I ll. App. 3d at 306-07, 613 N.E.2d at 357. The c ourt found, in Holdman , 73 I ll. 2d at 221-22, 383 N.E.2d at 159, that de fenda nts’ attempt to flee f

rom offic ers, who shone a lig ht into their vehicle while inve stigating a n unrelated crime, g ave the m probable c ause to a rre st them for re stricting or obstructinga police of

fice r in violation of section 31-1. In doing so, the court noted that " if the shining of the light is sufficie nt to constitute a ‘stop,’ it was pe rmissible for the purpose of investig atingpossible criminal behavior even though there was no proba ble ca use to make a

n arr est." Holdman , 73 I ll. 2d at 221, 383 N.E.2d at 158. The court then state d: "H ere , [t he off

icer s] personally

witnessed the de fenda

nts’ flig ht in violation of the resistanc e statute a

nd thus the ‘re asonable g rounds’ a re unde niably

prese nt. The office rs wer e both in uniform, in a mar ked police c ar, a

nd, as the c hase be g an, they activate d the squad c ar’ s emerg ency lights and sire n. I t is obvious t he defe ndants knew the y

wer e beingpursued by

the police, a

nd they wer e
acc ording ly

under a duty imposed by

the re sistance statute not to oppose the office rs’ e ffor

ts. [ Citation.] Thus, we be lieve the de fenda nts’ arr ests wer e -23-No. 1-09-0518

justified based upon the c ircumstance s surroundingthe violation of the statute." Holdman , 73 I ll. 2d at 222-23, 383 N.E.2d at 159- 60. L ikewise, the de cision in Jones , 245 I ll. App. 3d at 306-07, 613 N.E.2d a t 357, supports that conclusion. In that case , two office rs wer e dispatche d to a par king lot whe re, a ccor ding to a n informant, five or six black male s were exit ing a blue van a

nd one of the m was ca

rry ing a gun. Jones , 245 I ll. App. 3d at 303, 613 N.E.2d at 355. At the pa rkinglot, the office rs saw f our blac k men, includingdefe ndant, enter ing a blue van a

nd focuse d their attention on anothe r member of the g roup, who ha d rea ched into his belt. Jones , 245 I ll. App. 3d at 303-04, 613 N.E.2d at 355. The four men took off r

unning f rom the ar ea of

the van, a

nd afte r one of

the offic ers identifie d his office and ca lled out to the men to halt, defe ndant kept running south. Jones , 245 I ll. App. 3d at 304, 613 N.E.2d at 355. The off icer s order ed def

endant to stop, handc uffe d him and took him to the squad ca

r. Jones , 245 I ll. App. 3d at 304, 613 N.E.2d at 355. One of the a rre sting off

icer s later a dmitted that, other than disobeying his orde r to halt, defe ndant had done nothing that appea red illeg al. Jones , 245 I ll. App. 3d at 304, 613 N.E.2d at 356. The c ourt held that, under those circ umstances, the of fice rs had pr obable c ause to be lieve that defe ndant had violated se ction 31-1, bec ause he attempted to esc ape the police af ter a lawful order to halt. Jones , 245 I ll. App. 3d at 306, 613 N.E.2d at 357. I n rea chingits conclusion, the court noted that defe ndant conc eded that the office r’s orde r to halt was a n authorized ac t beca

use it was a leg itimate exercise of his investig ative author ity
. Jones , 245 I ll. App. 3d at 306-07, 613 N.E.2d at 357. The court then r easone d:

"T he evide nce e nabled the tr ial court to conc lude that [the office r] ordere d -24-No. 1-09-0518

defe ndant to halt, but defe ndant kept on running . Indeed, a ssuming arguendo that [t he off icer ] had no reason to be lieve that def endant he ard the orig inal order , defe ndant’s continued attempts to elude [t he off icer ] gave [hi m] probable cause to believe de fenda

nt was obstructingthe per formanc e of [the offic er’ s] i nvestig ative duties. I t is well settled that such flig ht is a form of r esisting or obstructinga police off icer ." Jones , 245 I ll. App. 3d at 307, 613 N.E.2d at 357. In contra st with thi s case , the cour t in Moore , 286 I ll. App. 3d at 654, 676 N.E.2d at 704, conclude d that an off

icer did not have proba

ble ca use to arr est defe ndant, who had f led from a police off icer , based on the fac t that when the of fice r appr oache d defe ndant, he did not have sufficie nt fac ts to just ify

a Terry stop. I n Moore , 286 I ll. App. 3d at 651, 676 N.E.2d at 702, a n office r saw de fenda

nt nextto a van pa

rked in fr ont of a tave rn, which w as known to be fre quented by

g angmembers a

nd wher e nar cotic ac tiviti es and shooting s had occ urre d befor e. The off icer saw what appea

red to be an exchang e of mone y betwee n defe ndant and someone inside the van, a

nd beg an wa lking towa

rds the vehic le. Moore , 286 I ll. App. 3d at 650-51, 676 N.E.2d at 702. De fenda

nt beg an wa lking f

aster, a nd when the of

fice r starte d chasinghim, defe ndant ra

n and turne d into an alley way . Moore , 286 I ll. App. 3d at 651, 676 N.E.2d at 702. When defe ndant was a

pprehe nded and pa

tted down, a ba gof coc aine wa s found on his person. Moore , 286 I ll. App. 3d at 651, 676 N.E.2d at 702. In aff irming the trial court’ s g rantingof def endant’ s motion t o suppress, the c ourt held that since the of

fice r wa s not justi fied to deta in defe ndant for a Terry stop, there wa s no probable
cause to arre st defenda

nt for violatingsection 31-1 whe n he ra n from police. Moore , 286 I ll. -25-No. 1-09-0518

App. 3d at 653, 676 N.E.2d at 704. The cour t stated: "We a g ree with the trial court that [section 31-1(a )] does not apply to the fac ts presente d in this case. When a police office r appr oache s a per son to make a Terrystop without sufficient articula ble fa cts to warr ant the stop, the off icer ’s actions ar e not ‘justified at the inc eption.’ [Ci tation.] In this circumstance , a person who r

uns awa y is not resisting or obstruc ting a n authorized ac t of the police off icer ." Moore , 286 I ll. App. 3d at 654, 676 N.E.2d at 704. In this case, Of

fice rs Har tley and Rake had the right unde r Terryto detain def endant, who
was a passeng er in a

car , even if

that car was stopped f

or a tra ffic violation only
. Johnson , 555 U.S. at ___, 129 S. Ct . at 786-88; Harris , 228 I ll. 2d at 231, 886 N.E.2d at 954. Consequently , when de fenda

nt ran fr om the vehicle, the office rs had pr obable c ause to a rre st him fleeing
. Although the office rs wer e patr olling the a rea in plainclothes in an unmarke d police vehic le when they

pulled over the vehicle, the y activate d the police ve hicle’s e merg ency lights to signa l the driver of the Chevy

to pull over for a

traff ic stop. As the offic ers a

pproac hed the ve hicle, they saw de fenda

nt run out of the ca

r. L ike def

endants in Holdman , 73 I ll. 2d at 222-23, 383 N.E.2d at 159-60, it is clea r that def endant he re kne w that he wa s beingstopped by police whe n the offic ers a ctivated their emer g ency

lights and he attempted to flee . Moreove r, ana logously to defe ndant in Jones , 245 I ll. App. 3d at 307, 613 N.E.2d at 357, de fenda nt here did not appear

to have c ommitt ed a c rime whe n he fle d, but attempted to elude police in obstruction of their ong oing inve stigation of another c rime. In addition, unlike the office rs in Moore , 286 I ll. App. 3d at 654, 676 N.E.2d at 704, the office rs in this case we re justified in appr oachingthe vehicle in -26-No. 1-09-0518

which def endant wa s a passe ng er pur suant to a valid traf fic stop bec ause the vehicle ha d failed to stop at a stop sign. We re cognize that if the orig inal traff ic stop had bee n unwar

rante d, the office rs would not have ha d the rig ht to detain defe ndant. Howe ver, the fac ts in thi s case do not neg ate that whe n the vehicle was stopped, it was violatinga tra ffic la w. Since the stop wa s
war rante d, the offic ers ha d the rig ht to detain defe ndant as a passeng er a

nd wer e justified in
arr estingdefe ndant when he fled, ther eby committing obstruction of a peac e off icer
. Def endant, ne verthe less, maintains that when he fled fr om the stopped vehicle , the police did not have proba

ble ca use to arr est him for obstructingan off icer beca use there wer e two office rs pre sent, and since one of the m could have e ffe ctuated the traff ic stop while the other detained de fenda

nt, his flight did not obstruct the offic ers’ authorized ac ts. Howeve r, that contention lacks me rit beca use, as discusse d above, the office rs wer e justified in detaining defe ndant as a

passeng er of

a ca r stopped for

a tra ffic violation. Johnson , 555 U.S. at ___, 129 S. Ct. at 786-88; Harris , 228 I ll. 2d at 231, 886 N.E.2d at 954. Consequently , by flee ing f rom the police duringsuch lawf

ul detention, he committed obstruction of a peac e off icer in violation of section 31-1( a) of

the Code. Holdman , 73 I ll. 2d at 222-23, 383 N.E.2d at 159- 60; Jones , 245 I ll. App. 3d at 307, 613 N.E.2d at 357. Accor dingly , it is i rre levant that one of the offic ers c ould have e ffe ctuated the traff

ic stop while another

one appr ehende d him, because he had a lrea dy been lawfully seized by virtue of the tr aff

ic stop and his flig ht from police at that time constitut ed obstruction of a pe ace office r. Since the police of

fice rs had pr obable c ause to a rre st defenda

nt for violation of the statute, the handgun in his waistband would have be en found on him as a sear ch incident to -27-No. 1-09-0518

arr est. See People v . Hoskins , 101 I ll. 2d 209, 216, 461 N.E.2d 941, 944 (1984) (f inding that a lawful a rre st establishes the authority to searc h, and a se arc h of a pe rson pursuant to a la wful
arr est is not only

an exception to the war

rant re quirement unde r the four th amendment, but a
rea sonable sea

rch unde r the amendment). Def endant a lso contends that the off icer s cannot be found to have had proba ble ca use to
arr est defe ndant for obstruc tion because Offic er H artley did not testify

that they suspected him of obstruction and he w as neve r cha rg ed with that offe nse. Howe ver, that does not deter this cour t from findingthat defe ndant’s ar rest wa s valid if probable cause exis ted at the time he w as appre hended. I

n fac t, defe ndant’s ar gument has bee n expli citly reje cted by

the supreme court in W ear , 229 I ll. 2d at 566, 893 N.E.2d at 644, and Holdman , 73 I ll. 2d at 223, 383 N.E.2d at 159- 60. In W ear , wher e the a

rre sting off

icer testified that he did not have probable cause or the intent to arre st defenda

nt at the time of the incide nt givingrise to the cha rg es, the c ourt found that " ‘[a]n action is "re asonable " unde r the F ourth Amendment, re g ardle ss of the individual office r’s state of mind, " as longas the c ircumstance s, viewed obje ctively , justify [t he] action." [C itation.] ’ " W ear , 229 I ll. 2d at 566, 893 N.E.2d at 644 (quoting Brigham City, Utah v. Stuart , 547 U.S. 398, 404 (2006)) . Moreove r, in Holdman , 73 I ll. 2d at 223, 383 N.E.2d at 160, whe re of fice rs had proba ble ca use to arr est defe ndants for obstruc tion after the n ran f rom police, the c ourt held that "[t]he fact that a

formal c harg e of r esisting or obstructinga police of

fice r wa s never

made does not detra ct from our conclusion in light of the superve ning e vents conc erningthe ar med robber y char g e." Simi larly , in this case, Of fice r Ha rtley failed to testify

that she had pr obable c ause to -28-No. 1-09-0518

arr est defe ndant when he ran f rom the vehic le. As pre viously discussed, her

testimony

attempted to establish that the appre hension of def endant wa s justified as a Terry stop, and that he wa s not under c ustody

until after Of

fice r Rake disc overe d the gun in his waistband. Howeve r, that fa ct does not prec lude us from c oncludingthat probable cause exis ted at the time Of fice r Rake handcuf fed de fenda

nt and moved his hand a cross de fenda nt’s waist. W

ear , 229 I ll. 2d at 566, 893 N.E.2d at 644. Ne ither does the f act that de fenda

nt was not forma lly

char g ed with obstructinga pea ce of

fice r re quire us to re ach a differ ent conc lusion. For the above cited re asons, we a g ree with the trial court’ s conclusion that the off icer s’ actions in handc uffingdefe ndant constituted an a rre st, but find that the office rs had pr obable
cause to execute the ar

rest and tha

t his mot ion to quash arr est and suppre ss evidence should have been de nied. Affir med in part a

nd reve rsed in par

t. HOWSE, J ., and EPSTEI N, J ., concur .

-29-No. 1-09-0518
REPORTER OF DECI SIONS - ILLINOIS APPELLATE COURT (Fron t Sheet to be Atta ch edto EachCase ) Please use the followingform People of the State of I llinois , et al Appellant,
v. Ron J ohnson Appellee
.

Docke t No. COURT Opinion Filed No. 1-09-1508 Appellate Court of

I llinois First District, F I FTH Division Dec ember

23, 2010 (Give month, day

and year)

J USTI CES J USTI CE J OSEPH GORDON DEL I VERED THE O PI NI ON OF THE COURT: Howse, J, and Epstein, J .,, concur . APPEALfrom the I llinois Commerce Commi ssion; the Hon___ J udg e Presiding. L ower Court and Trial Judge (s) in for m indicated in marg in: The c ircuit court of

Cook County
. The Hon. Ma

ry M. Br osnahan Chair

man.

APPEL LANTS: State of I llinois Indicate if attorney repr esents APPEL LANTS or APPEL L EES and include attorney s of counsel. I

ndicate the word NO NE if not re prese nted. APPEL LANT:Anita Alva rez, State’s Attorney , J ames E. F itz g era ld, Veronic a Calder on Malavia, U g o H. B uzz i, County of Cook, Room 309 - Richard Da ley Center, Chica g o, I L 60602 For APPEL L EES, J ohnson APPEL L EES:Michael J. P elletier, State A ppellate De fende r, Patricia Unsinn, Deputy Def ender , J ulianne Johnson, Assi stant Appellate D efe nder, O ffice r of the State A ppellate Def ender , 203 N. L aSalle Stree t, 24 Floor, Chica g o, I L60601 t h

-30-No. 1-09-0518 Add attorne y s for 3rd party appellants a

nd/or appellee s.

-31-