People v. Alvarado

• Decision Date: 28 December 1998
• Docket Number: Nos. 2-97-1081,2-97-1084,s. 2-97-1081
• Citation: 301 Ill.App.3d 1017,235 Ill.Dec. 364,704 N.E.2d 937
• Parties: , 235 Ill.Dec. 364 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Lorenzo ALVARADO, Defendant-Appellee. The People of the State of Illinois, Plaintiff-Appellant, v. Michael A. Gonzalez, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 937

704 N.E.2d 937

301 Ill.App.3d 1017, 235 Ill.Dec. 364

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Lorenzo ALVARADO, Defendant-Appellee.

The People of the State of Illinois, Plaintiff-Appellant, v. Michael A. Gonzalez, Defendant-Appellee.

Nos. 2-97-1081, 2-97-1084.

Appellate Court of Illinois Second District.

Dec. 28, 1998.

Gary W. Pack, McHenry County State's Atty., Woodstock, Martin P. Moltz, Deputy Director, David A. Bernhard, State's Attys. Appellate Prosecutor, Elgin, for People.

Camille A. Goodwin, Woodstock, for Lorenzo Alvarado.

G. Joseph Weller, Deputy Defender, Paul J. Glaser (Court-appointed), Office of the State Appellate Defender, Elgin, for Michael A. Gonzalez.

Presiding Justice GEIGER delivered the opinion of the court:

These appeals have been consolidated for decision. According to its jurisdictional statement, the State appeals on the basis that the trial court's orders dismissed the criminal charges against each defendant and quashed their arrests. See 145 Ill.2d R. 604(a). After reviewing the record, we construe the court's orders as dismissing the charges. However, the State argues only that the court erred in granting the defendants' motions to quash their arrests based on their claim that the stop or seizure was unlawful. We affirm.

In appeal No. 2--97--1081, the defendant, Lorenzo Alvarado, was originally indicted for obstructing justice on June 29, 1996, with the intent to obstruct his own prosecution by knowingly furnishing false information to a peace officer as to the defendant's own true date of birth in stating that his date of birth was May 7, 1978 (720 ILCS 5/31-4(a), (d) (West 1996)), a Class 4 felony. Defendant Alvarado has not filed an appellee's brief; to the extent necessary, we consider that appeal in accordance with the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493 (1976).

In appeal No. 2--97--1084, the defendant, Michael A. Gonzalez, was similarly indicted for obstructing justice on June 29, 1996, with the intent to obstruct his own prosecution by knowingly furnishing false information to a peace officer as to the defendant's own true date of birth in stating that his date of birth was August 9, 1977.

Each defendant filed a motion to dismiss the charges for the failure to state properly the elements of an offense. See 725 ILCS 5/114-1(a)(8) (West 1996). The State reduced the felony charge in each case by filing an information charging each defendant with an attempt to obstruct justice (720 ILCS 5/8-4(a), (c)(5) (West 1996)), a Class A misdemeanor. The information charged each defendant with attempted obstructing justice (citing the statutory section) with intent to commit that offense, in that the defendant "performed a substantial step toward the commission of that offense, in that he knowingly furnished false information to Brian Karr, a peace officer, as to this true date of birth, in that he related to Brian Karr that his date of birth was [a given date]." In none of the charges did the State specify with particularity the nature of the predicate arrest, prosecution, or offense involved.

Each defendant moved to quash his arrest and to suppress evidence, alleging that the officer did not have reasonable and articulable suspicion or probable cause to stop or detain the defendant. Following an evidentiary hearing, the trial court stated it was granting "both motions in each case," finding that there was no "probable cause" to make the initial stop in the first instance. The court further explained that the officers may have viewed a violation of a local ordinance and that "it is not an offense because it is not a violation of the penal statute of the state so there was no unlawful conduct by either defendant based on the initial contact" with the police.

At the defendants' combined hearing on the motions to quash, Sergeant Brian Karr of the Crystal Lake police department testified that, on June 29, 1996, he was on duty for the annual "Gala Days" when he observed four people passing and smoking two cigarettes. One of the persons was Lisa Federson, whom Karr had known previously and who appeared to be 18 years of age. After refreshing his memory from his report, Karr stated he indicated there that all four appeared to him to be under 18 years of age. He asked Yvette Chavez how old she was. She replied that she was 17 years old, but Karr chose not to ticket her under the Crystal Lake smoking ordinance.

Karr stated he approached the group to determine if they were in violation of the smoking ordinance. The clothing and colors of Alvarado were possibly gang affiliated and attracted Karr's attention. Karr explained to the group that there was an underage smoking ordinance; that they appeared to be under the age of 18; and that he was going to check their identifications to determine if they were old enough to smoke. Karr was interested in speaking with Alvarado regarding both his gang affiliation and the smoking ordinance. Alvarado admitted he was a member of a gang, but Karr did not charge him with anything because gang affiliation was not unlawful. Karr also did not charge Alvarado with a violation of the smoking ordinance. During this encounter, none of the four individuals was placed under arrest.

Upon further cross-examination by the State, Karr testified that Gonzalez and Alvarado each held and smoked a cigarette. Gonzalez gave his date of birth as August 9, 1977. Alvarado gave his date of birth as May 7, 1978. Karr testified that the ordinance prohibited individuals under the age of 18 from smoking tobacco. After being given their ages, Karr believed that the defendants were 18 years of age. The following day, Karr determined that Alvarado and Gonzalez had given incorrect birth dates and that they were one year younger than they had stated. Gonzalez's date of birth was actually August 9, 1978, and Alvarado's was actually May 7, 1979.

Karr testified for the State. He contacted Alvarado at his residence on June 30, 1996. Alvarado admitted he did not give Karr the correct date of birth because he knew he was not supposed to be smoking. Karr testified that, based upon their actual dates of birth, each defendant was 17 years old on June 29, 1996. When Alvarado's defense counsel cross-examined Karr regarding his detaining the four people on the basis of the smoking ordinance and the possible gang affiliation, the State "vehemently" objected to the characterization "detain" and urged that there was never any "detention" of the defendants. Karr then testified that his reason for "stopping" them and obtaining the identification was because they appeared to him to be under the age of 18 and were in violation of the smoking ordinance. During further cross-examination, Karr stated he had never seen the three individuals, other than Federson, and did not know their ages.

Alvarado's counsel first argued that the attempt charge in this case was facially defective because it did not set forth the facts constituting the offense--particularly with respect to obstructing a specific prosecution. Counsel pointed out that, on the date in question, there was no intent by the officer to apprehend or charge anyone with any offense, and the officer was merely acting on an impermissible hunch or suspicion. Counsel noted that the State denied the defendants were "detained" and thus there was no intent to apprehend the defendants, an element of obstructing justice. See 720 ILCS 5/31-4(a) (West 1996).

The State argued that the charging instrument was sufficient. The charge in each case had been amended to attempted obstructing justice, and it alleged that each defendant performed a substantial step toward the commission of that offense in furnishing false information as to his true date of birth in order to prevent his apprehension. We note that the "apprehension" element, however, is not expressly stated in the information. Gonzalez's counsel argued that all of the elements of the offense were not clearly charged and that merely furnishing false information did not constitute obstructing justice.

The State now argues in each appeal that the court erred in finding that there was an insufficient ground to make the initial investigative stop or detention and that the court's decision was manifestly erroneous. The State further argues that the trial court erroneously concluded that a local ordinance violation is not an offense for the purpose of sustaining an investigative stop.

The State has not clearly articulated the facts showing whether an actual stop or detention occurred. In the trial court, the State "vehemently" objected to the characterization of the police encounter as a Terry stop or investigative detention, yet the State now argues the contrary on appeal. Since the State is not the prevailing party below, this argument is technically waived, and we need not consider it. People v. Holloway, 86 Ill.2d 78, 91, 55 Ill.Dec. 546, 426 N.E.2d 871 (1981) (issue raised by State for first time on appeal waived); People v. Rose, 191 Ill.App.3d 1083, 1095, 139 Ill.Dec. 163, 548 N.E.2d 548 (1989) (State as nonprevailing party may be precluded from arguing a new theory on appeal).

Defendant Gonzalez concedes that the violation of a municipal ordinance may provide an officer with the basis to make an investigatory stop. See People v. Bivens, 163 Ill.App.3d 472, 479, 114 Ill.Dec. 583, 516 N.E.2d 738 (1987) (when officer has reason to believe an ordinance has been violated, a resulting stop is based upon specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion), relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Gonzalez also argues that the proceeding below was construed as a motion to dismiss the charges (see 725 ILCS 5/114-1(a)(8) (West 1996)), because the charge did not state an...