F.R., In Interest of

• Decision Date: 18 January 1991
• Docket Number: No. 1-88-2159,1-88-2159
• Citation: 209 Ill.App.3d 274,154 Ill.Dec. 133,568 N.E.2d 133
• Parties: , 154 Ill.Dec. 133 In the Interest of F.R., a Minor (People of the State of Illinois, Petitioner-Appellee, v. F.R., a Minor, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 133

568 N.E.2d 133

209 Ill.App.3d 274, 154 Ill.Dec. 133

In the Interest of F.R., a Minor (People of the State of Illinois, Petitioner-Appellee, v. F.R., a MinorRespondent-Appellant).

No. 1-88-2159.

Appellate Court of Illinois First District, Fifth Division.

Jan. 18, 1991.

[209 Ill.App.3d 275] [154 Ill.Dec. 134] Jack O'Malley, State's Attorney of Cook County, Chicago (Renee Goldfarb, Kenneth T. McCurry, Sharon Jefferson, Asst. State's Attys., of counsel), for petitioner-appellee.

Randolph N. Stone, Public Defender of Cook County, Chicago (Stephen L. Richards, Asst. Public Defender, of counsel), for respondent-appellant.

Justice GORDONdelivered the opinion of the Court.

Respondent, the minor F.R., was charged with possession of 3.95 grams of cannabis sativa in violation of section 4 of the Cannabis Control Act.(Ill.Rev.Stat.1987, ch. 56 1/2, par. 704.)The respondent filed a pre-trial motion to quash arrest and suppress evidence, which was denied.Following an adjudicatory hearing, the trial court entered a finding of delinquency.The respondent was declared a ward of the court and was placed on probation for eighteen months, with thirty days in custody.On appeal, respondent contends that the trial court erred in denying his motion to quash arrest and suppress evidence.For the following reasons, we reverse the finding of delinquency.

FACTS

At the hearing on the motion to suppress, respondent testified on his own behalf.He said that on March 7, 1988, at approximately 10:00 p.m., he was standing at the intersection of Division and Winchester Streets in Chicago when two police officers approached him.He testified that the officers asked him why he was standing there, and then searched his pocket and removed something.On cross examination, respondent said he knew that a lot of drug dealings occur on that corner.He denied that when the police stopped him, he had walked up to a car that had stopped at the intersection.

Officer Ralph Vega, testifying on behalf of the State, said that the intersection of Division and Winchester is a known drug trafficking area and that he has observed drug transactions occurring at that intersection approximately twenty-five times.He testified that in the six months before the hearing, he had made about a dozen arrests there.He explained that, from his experience, these transactions involve a car that pulls up to a certain corner.The driver of that car then motions to a person standing at the corner, after which that person approaches the car and the driver asks him "for an amount."Then, the person gives the driver a package and money is exchanged.

Officer Vega further testified that he was assigned to the intersection of Division and Winchester on March 7, 1988.He and his partner arrived at the intersection at 10:10 p.m.They were in uniform and driving a marked car.The officer testified that he observed the respondent on the corner to his left and a parked car with someone in the driver's seat on the corner to his right.The driver of the car waved to respondent and respondent walked over to the car and began talking to him.Officer Vega testified that he and his partner were then right by the corner, approximately twenty-five feet from the car, at which time respondent saw them and immediately walked away from the vehicle.The officers then exited their car and stopped him.Officer Vega testified that they asked respondent what he was doing by the car, but he did not answer.Thereafter, a pat-search was conducted, at which time, the officer testified, he felt a bulge in the front of respondent's pants, close to the belly button.The officer then removed a crumpled up potato chip bag from inside respondent's pants.Inside the potato chip bag were four smaller bags that contained a crushed green plant matter, later found to be marijuana.

Upon cross examination, Officer Vega said he did not see respondent exchange anything with the car's driver.He testified that he squeezed the bulge that he had felt in respondent's pants and determined it was not solid, nor did it have any sharp edges.

After hearing this testimony, the trial court denied respondent's motion to quash arrest and suppress evidence, saying that the search of respondent was proper because the officer had probable cause to believe a crime was in progress.The court also said that because a crumbled up potato chip bag could have felt like "some kind of object that could possibly be a weapon,""it [the search] properly meets" the requirements of Terry v. Ohio(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

At the adjudicatory hearing, Officer Vega restated his testimony given at the motion to suppress hearing.On cross examination, he said that he did not hear the conversation between respondent and the driver, nor did he see either of them exchange anything.He also said that more juveniles congregate at this particular corner than at other drug trafficking corners in the area.Officer Vega testified that when he retrieved the potato chip bag, he thought there was a possibility the bag contained drugs.While he did not think there was a gun in the bag, he testified that he believed that there possibly could have been some sort of weapon in the bag.The prosecution then successfully objected to defense counsel's question regarding what type of weapon Officer Vega thought may have been in the bag.

At the conclusion of evidence, the trial court found the respondent was in possession of 3.95 grams of marijuana.The court denied respondent's motion for a new hearing and entered a finding of delinquency.Respondent was declared a ward of the court and was placed on probation for eighteen months, with thirty days in custody.After the parties submitted briefs on appeal, respondent made a motion to strikethe State's brief, on the grounds that the State waived any argument that the search was lawful under Terry v. Ohio by successfully objecting to the admission of evidence as to what kind of weapon Officer Vega thought was in the bag.That motion was taken with this case.

OPINION

Respondent contends the trial court erred in allowing the potato chip bag into evidence at the adjudicatory hearing because there was no probable cause for arrest and therefore the evidence was not properly seized in a search incident to an arrest.Moreover, respondent argues, Officer Vega's stop and subsequent pat-search of respondent did not sufficiently comply with the requirements set forth in Terry to justify the ensuing search and seizure under those standards.

In its brief, the State urged that probable cause for arrest existed, but its primary justification for admitting the evidence was that the stop and subsequent search were valid under Terry.Moreover, at oral argument, the State only asserted its Terry argument.Nevertheless, because the State did not formally withdraw its contention that probable cause existed, the grounds upon which the trial court predicated its ruling, we will briefly address that issue.

The reviewing court should not disturb the trial court's finding on a motion to suppress unless that finding is shown to be manifestly erroneous.(People v. Waddell(1989), 190 Ill.App.3d 914, 918, 138 Ill.Dec. 13, 18, 546 N.E.2d 1068, 1073.)In Illinois, a peace officer may arrest a person when he has reasonable grounds to believe that the person is committing or has committed an offense.(Ill.Rev.Stat.1989, ch. 38, par. 107-2(c).)"Reasonable grounds" has the same substantive meaning as "probable cause."(People v. Wright(1974), 56 Ill.2d 523, 528, 309[209 Ill.App.3d 278] N.E.2d 537, 540.)If probable cause for an arrest exists and evidence is seized in a search incident to that arrest, then that evidence is admissible.

Respondent contends that the circumstances are not sufficient to support a reasonable inference that respondent had committed or was committing a crime, pursuant to the standards set forth in Sibron v. New York(1969), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.We agree that Sibron controls.

In Sibron, a police officer accosted the defendant after seeing him talk with known drug addicts over an eight-hour period.An ensuing search of the defendant's pockets revealed heroin.The United States Supreme Court reversed the defendant's conviction, saying that the officer had neither probable cause to arrest the defendant nor a reasonable suspicion to stop him.

The Court reasoned that the officer was not acquainted with the defendant and had no information concerning him.The officer merely saw the defendant talking to several known drug addicts over an eight-hour period.The Court emphasized the fact that the officer had no knowledge of the content of these conversations, and that he saw nothing pass between the defendant and the addicts.The Court held that nothing resembling probable cause existed until after the search had turned up the envelopes of heroin, and that "it is axiomatic that an incident search may not precede an arrest and serve as part of its justification."Sibron, 392 U.S. at 62-63, 88 S.Ct. at 1902, 20 L.Ed.2d at 934-35.

Here, as in Sibron, no evidence was introduced that the officer had any information concerning either respondent or the driver of the automobile.He merely saw the two having a conversation at a street corner in a drug trafficking area.The officer had no knowledge of the content of the conversation, nor did he see anything pass between respondent and the driver.The officer could not have made a reasonable inference that respondent was committing or had committed a crime.Therefore, there was not probable cause to arrest respondent at that time and the trial court erred in so ruling.

The State contends that even if probable cause did not exist when the officers observed respondent talking with the driver of the parked car, the evidence was properly obtained pursuant to a legitimate stop and frisk under the requirements set forth in...