People of The State of Ill. v. WELLS

• Decision Date: 06 August 2010
• Docket Number: No. 1-09-0792.,1-09-0792.
• Citation: 403 Ill.App.3d 849,343 Ill.Dec. 412,934 N.E.2d 1015
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Caleb WELLS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

403 Ill.App.3d 849

934 N.E.2d 1015

343 Ill.Dec. 412

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Caleb WELLS, Defendant-Appellee.

No. 1-09-0792.

Appellate Court of Illinois,First District, Fifth Division.

Aug. 6, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Anita Alvarez, State's Attorney, County of Cook, Chicago (James E. Fitzgerald, Veronica Calderon Malavia, Kathryn A. Schierl, Assistant State's Attorneys, of counsel), for Appellant, People of the State of Illinois.

Presiding Justice TOOMIN delivered the opinion of the court:

This case calls on us to determine whether the circumstances of a Terry stop engendered sufficient reasonable suspicion of the danger of an attack to warrant a frisk for weapons. Following a hearing on defendant Caleb Wells' motion to quash arrest and suppress evidence, the trial court granted relief. The State now appeals, contending: (1) the trial court's factual findings were against the manifest weight of the evidence; (2) the stop and frisk of defendant comported with Terry; (3) the arresting officers had probable cause; and (4) the search of defendant's vehicle was proper. Defendant did not file a responsive brief. Consequently, we can and do consider the appeal based solely upon the State's brief and the circuit court record. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493, 495 (1976). For the reasons that follow, we affirm the order of the circuit court.

BACKGROUND

Defendant was charged by indictment with unlawful use of a weapon by a felon and aggravated unlawful use of a weapon by a felon. Prior to trial, counsel moved to quash defendant's arrest and suppress the evidence derived therefrom. Defendant's motion asserted the officers arrested him without probable cause. Following an evidentiary hearing on the motion, the trial court granted the motion and suppressed the evidence. In turn, the State filed a certificate of substantial impairment followed by a notice of appeal.

Officer Dervisevic was the sole witness to testify at the hearing. According to Dervisevic, at about 2 a.m. on November 7, 2008, he and his partner, Officer Mizones, responded as an assist car to a “domestic disturbance” at 1301 West Argyle in Chicago. The radio call indicated the victim, Allison Sturgill, complained to the dispatcher her ex-boyfriend was outside of her building, ringing her unit, and “threatening to kill her over the phone.” Sturgill told other officers she wanted defendant to leave, but did not want to press charges. Upon arrival, Dervisevic observed defendant exiting Sturgill's apartment. Dervisevic did not speak with Sturgill at any point and was unaware of any additional conversations she had with the other officers. Likewise, the officers did not stop or speak with defendant as he left the building and proceeded on foot west on Argyle. No mention was made that defendant was possibly carrying a gun. After defendant left the area, the officers departed.

Approximately 10 minutes later, Dervisevic received a second radio call indicating defendant had returned to Sturgill's apartment; that he was “in front of the building ringing the bell and threatening to call her over the phone.” Once again, there was no indication defendant was armed. When Dervisevic and his partner returned to the area, they saw defendant walking west down Argyle at about 1325 Argyle. Defendant did not have anything in his hands. They stopped their squad car in front of him and exited to conduct a field interview. Defendant cooperated fully with the officers. However, before the officers asked defendant any questions, they “placed him in cuffs right away for our safety and [patted] him down for weapons.” Officer Dervisevic discovered a handgun in defendant's left sock near his ankle. Defendant was taken into custody and transported to the 20th District police station. While at the station, defendant claimed the gun belonged to his grandmother.

Ammunition for the handgun was found in his vehicle, which was parked on the opposite side of Argyle from the encounter. Dervisevic's tow report indicated defendant's vehicle was parked at 1348 West Argyle. According to Dervisevic, defendant never gave consent to a search of his vehicle. Once in the station, after Mirandizing the defendant, the officer “asked him if he had a car [and] he stated to me that he had a car and he was parked in that block over there.” Dervisevic further explained, “And to make sure that prisoner property is safe I went back there to make sure that his car is legally parked which it was not.” Consequently, defendant's car was cited for parking illegally in a handicapped zone and Dervisevic called for the car to be towed. While awaiting the tow, Dervisevic searched the vehicle and found ammunition for use in the handgun found in defendant's possession.

The State argued that, based on circumstances, the officer had probable cause to conduct a Terry stop and pat defendant down. The State posited that the officer's actions were warranted given the close temporal proximity of the two incidents, coupled with defendant's alleged threat to kill Sturgill, as well as the allegation that the officer was in fear. Furthermore, the officer possessed “a reasonably articulable suspicion that * * * defendant was the individual who had made that threat and he certainly had probable cause to pat him down for his own safety and recover the gun.”

Defense counsel countered that the officer's actions were “backwards,” as defendant was immediately handcuffed and searched. Accordingly, the circumstances presented to the officers were not sufficient to establish probable cause. When the officers arrived, defendant was “walking, behaving himself.” According to defense counsel, the officers needed some verification of defendant's identity and the nature of his actions giving rise to Sturgill's call to police. Consequently, the search of defendant's person was improper under the circumstances. Furthermore, the defense disagreed that this encounter could be considered a Terry stop or that such a stop and pat down was even warranted, especially where there was never any mention or implication of the presence of a weapon. Counsel argued the search of the car was likewise improper based upon the infirmities of the initial stop.

Following argument, the trial judge announced his findings:

“Well clearly when he is stopped which was when the officer went back and his liberty is restrained he seems to be that he is under arrest because the officers approached him for a field interview but what the officers did was they put him in handcuffs, that is a pretty strong indication of your liberty being restrained and you are not free to leave. Now no one has articulated, no officer has testified as to what he was under arrest for at that point. He is under at best he would be under arrest I assume for a domestic disturbance. I don't know what exactly where that crime appears in the statute. As far as I know there is so [ sic ] such crime as domestic disturbance, that is a police call, that is the way that they notify the officers on the street as to the nature of something.

But the officer did not articulate that they placed the man under arrest for aggravated or simple assault or anything else they just basically took him into custody. Once they take him into custody they then search him. And but that search is incident to an arrest that is not based on the defendant actually having committed an actual crime that the officer was aware of.

So, the resulting search I believe the proceeds of that search which was done without benefit of any warrant would be and is ordered suppressed. The subsequent later search based on the defendant already being under arrest and then saying the he had a car parked out on Argyle whatever was recovered during the search of that search is the fruit of the poisonous tree from the initial illegal arrest so that will be suppressed as well.”

Thereafter, the State sought reconsideration. During the argument on the motion, the State addressed an additional issue concerning the transcript of the prior hearing. Specifically, the State argued the transcript erroneously reflected that in the second radio call Officer Dervisevic received defendant “threatened to call” the victim. According to the State, the transcript should have read “threatened to kill.” Additionally, the State contended the officers, in fact, had probable cause to arrest defendant for the offense of telephone harassment. Yet, even if the officers lacked probable cause, they possessed a reasonable, articulable suspicion to stop and frisk defendant based upon the original call, the officer's response, and the second call concerning defendant's renewed actions. The State further argued that handcuffing the defendant for the officer's safety did not convert the encounter into a seizure, given that an individual, under the circumstances, could possess a weapon in light of the nature of the threats to the victim.

The trial court denied the motion to reconsider, first rejecting the State's claim that Dervisevic's testimony was erroneously transcribed. The judge explained that the answer the officer gave “resonated” with him and the transcript was consistent with his recollection and reaction to the testimony. Additionally, the trial judge discounted the officer's recorded answers on cross-examination where the questions posed referred to a threat to “kill” the victim.

The trial judge further noted that there was no testimony to indicate any mention defendant was armed when the officers approached him. Furthermore, the way the officers “rolled up on” defendant and immediately handcuffed and searched him led the court to conclude defendant was under arrest at that time. Yet, there was no indication of the basis for the arrest. Instead, not until the hearing on the motion to reconsider did the State offer the...