People v. Carter, 1-17-0803

• Court: United States Appellate Court of Illinois
• Writing for the Court: JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
• Citation: 161 N.E.3d 233,443 Ill.Dec. 109,2019 IL App (1st) 170803
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David CARTER, Defendant-Appellant.
• Docket Number: No. 1-17-0803,1-17-0803
• Decision Date: 22 October 2019

2019 IL App (1st) 170803
161 N.E.3d 233
443 Ill.Dec. 109

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
David CARTER, Defendant-Appellant.

No. 1-17-0803

Appellate Court of Illinois, First District, SECOND DIVISION.

October 22, 2019
Modified upon denial of rehearing March 10, 2020

James E. Chadd, Patricia Mysza, and Sean Collins-Stapleton, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Brian A. Levitsky, and Ahmed Islam, Assistant State's Attorneys, of counsel), for the People.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

443 Ill.Dec. 112

¶ 1 Following a bench trial, defendant, David Carter, was convicted of the offense of armed habitual criminal and was sentenced to nine years' imprisonment. On appeal, defendant challenges his conviction, arguing that the circuit court erred in denying his pretrial motion to quash his arrest and suppress evidence and that the

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443 Ill.Dec. 113

State failed to prove his guilt of the offense beyond a reasonable doubt. For the reasons explained herein, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 On March 9, 2016, during the course of an encounter with Chicago police officers, a handgun was recovered from defendant's person. Defendant was subsequently charged with a number of weapons offenses, including armed habitual criminal, aggravated unlawful use of weapon by a felon, and aggravated unlawful use of a weapon.

¶ 4 Following his arrest, defendant filed a motion to suppress the gun and quash his arrest, in which he argued that the officers' warrantless search and seizure of his person was unlawful. Specifically, he argued that when the officers stopped him, they lacked reasonable suspicion or probable cause to believe that he had committed or was about to commit a criminal offense and thus the search and seizure of his person violated his constitutional rights. The trial court subsequently presided over a hearing on defendant's motion.

¶ 5 At the hearing, Chicago Police Officer Robert Luzadder testified that on March 9, 2016, at approximately 11:36 p.m., he and his partner, Officer Lee Anthony Brown, were on routine patrol when they received a message from the Office of Emergency Management and Communication (OEMC) about an emergency call placed by a "person who wished to remain anonymous." The unidentified caller had reported observing a white male wearing a black "hoodie" in the vicinity of 33rd and Wallace Streets. According to the unidentified caller, the man was in possession of a gun and was "swinging at" two white females. Approximately two to three minutes after receiving the OEMC message, the officers arrived at the location specified by the caller; however, they did not observe anyone matching the description of the man provided by the caller. Approximately two to four minutes later, the officers received additional information from OEMC that the same unknown caller was now reporting that the man and the two women were walking in the vicinity of 3100 South Lowe Avenue. In response, the officers relocated to the new location, which was approximately two blocks away.

¶ 6 Once there, Officer Luzadder observed defendant, who matched the description of the man provided by the unknown caller. Defendant was holding the right side of his waistband as he was walking. Based on his 22 years of experience in law enforcement, Officer Luzadder believed that the manner in which defendant was walking suggested that he was "attempting to conceal a firearm underneath his clothing." As a result, he addressed defendant and requested him to approach the squad car with his hands raised. Defendant complied with his request and placed his hands on the squad car. Because the anonymous caller had reported that defendant was armed with a firearm and because defendant had been walking with his right hand on his waist, Officer Luzadder performed a protective pat down of defendant's person. During the course of the pat down, he felt what he believed to be "the handle of a firearm" near defendant's waist. When he raised defendant's shirt, Officer Luzadder confirmed that defendant had been concealing a firearm in his waistband. He recovered the "loaded nickel revolver" and placed defendant into custody. Officer Luzadder never drew his weapon on defendant or activated his vehicle's emergency equipment during the encounter. He admitted, however, that he did put his hand on his own police issued firearm as defendant approached the police

161 N.E.3d 238

443 Ill.Dec. 114

car. He did not know whether his partner had drawn his weapon.

¶ 7 Officer Luzadder also admitted that he never saw defendant with a firearm until he recovered it from his waistband during the protective pat-down. Moreover, at the time that he encountered defendant, he had not been issued a search warrant or an arrest warrant and had not observed defendant violating any state or federal laws. He also conceded that not everyone who holds their waistband in the manner that he had observed defendant doing is concealing a firearm. Finally, Officer Luzadder admitted that he never had any contact with the unknown caller. Although OEMC had recorded the phone number the caller was using to place the emergency calls, Officer Luzadder did not know the identity of the person who placed those calls.

¶ 8 Following Officer Luzadder's testimony, the parties delivered their respective arguments regarding the merit of defendant's suppression motion. After hearing those arguments and briefly recounting the evidence presented, the court denied defendant's motion to suppress, "find[ing] no offense to the 4th Amendment here." The cause then proceeded to a bench trial.

¶ 9 At trial, the parties stipulated to the testimony that Officer Luzadder had provided at the earlier suppression hearing. Thereafter, the State called upon him to provide additional live testimony about his encounter with defendant on the evening of March 9, 2016. Consistent with the testimony he provided at the suppression hearing, Officer Luzadder testified that he and his partner first observed defendant near 3110 South Lowe and that he recovered a "loaded five shot revolver pistol" from defendant during the protective pat-down of his person. In addition, Officer Luzadder further testified that as he was recovering the weapon, defendant "made a spontaneous statement stating * * * I'm a 2-6, I'm on parole and I use this from [sic ] protection against the SDs." He subsequently inventoried the gun in accordance with department protocol.

¶ 10 On cross-examination, Officer Luzadder admitted that he did not memorialize defendant's spontaneous statement for him to sign; however, he did include the statement in the case report that he completed of the incident. He acknowledged that defendant had not been read his Miranda rights prior to making that statement.

¶ 11 Following Officer Luzadder's testimony, the State presented evidence of defendant's criminal history. Specifically, the State presented a certified copy of conviction under case No. 10-CF-367 for the offense of armed robbery and a certified copy of conviction in case No. 09-CF-2251 for the offense of aggravated battery.

¶ 12 The parties then stipulated that defendant did not possess a valid Firearm Owner's Identification (FOID) card or a concealed carry license on the date that Officer Luzadder recovered a firearm from his person.

¶ 13 After presenting the aforementioned evidence, the State rested its case-in-chief. Defendant elected not to testify, and the defense rested without calling any witnesses. The parties then delivered closing arguments. After hearing those arguments and recounting the evidence presented, the court concluded that "the State has met [its] burden of proof beyond a reasonable doubt" and found defendant guilty of armed habitual criminal, unlawful use of a weapon by a felon, and aggravated unlawful use of a weapon. Defendant's posttrial motion was denied and the cause proceeded to a sentencing hearing where the court, after hearing the evidence presented

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443 Ill.Dec. 115

in aggravation and mitigation, sentenced defendant to nine years' imprisonment for the offense of armed habitual criminal. The other counts were merged. This appeal followed.

¶ 14 ANALYSIS

¶ 15 Motion to Quash Arrest and Suppress Evidence

¶ 16 On appeal, defendant first argues that the circuit court erred in denying his pretrial motion to quash his arrest and suppress evidence. He argues that the loaded handgun that formed the basis for his arrest and conviction "was obtained as a result of [his] unlawful detention by Officer Robert Luzadder, who based the seizure on an uncorroborated anonymous tip in violation of Florida v. J.L. , 529 U.S. 266, 271 [120 S.Ct. 1375, 146 L.Ed.2d 254] (2000)." Because the gun and his subsequent incriminating statement were both obtained in contravention of his fourth amendment rights,...