People v. Frazier

• Decision Date: 29 July 1993
• Docket Number: 2-91-0719,Nos. 2-91-0718,s. 2-91-0718
• Citation: 187 Ill.Dec. 369,617 N.E.2d 826,248 Ill.App.3d 6
• Parties: , 187 Ill.Dec. 369 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Sundeleen Y. FRAZIER et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 826

617 N.E.2d 826

248 Ill.App.3d 6, 187 Ill.Dec. 369

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Sundeleen Y. FRAZIER et al., Defendants-Appellees.

Nos. 2-91-0718, 2-91-0719.

Appellate Court of Illinois Second District.

July 29, 1993.

William L. Browers, Deputy Director, Gregory L. Slovacek, State's Attys. Appellate Prosecutors, Elgin, James E. Ryan, Du Page County State's Atty. and Barbara A. Preiner, Supervisor of Appeals, Du Page County State Attorney's Office, Wheaton, for the People.

G. Joseph Weller, Deputy Defender and Kim M. DeWitt, Office of the State Appellate Defender, Elgin, for Sundeleen Y. Frazier.

John F. Donahue, Donahue, Sowa & Bugos, Lisle, for Kassandra Person.

Justice DOYLE delivered the opinion of the court:

Defendants, Sundeleen Y. Frazier and Kassandra Person, were both indicted on three counts of retail theft in excess of $150 (Ill.Rev.Stat.1991, ch. 38, par. 16A-3(a), 16A-10(3) (now 720 ILCS 5/16A-3(a), 5/16A-10(3) (West 1992))). Defendants each brought a motion to suppress evidence seized by police after a Terry stop (see Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889) of their vehicle on March 28, 1991. Following a joint evidentiary hearing, the trial court granted defendants' motions. The State filed timely certificates of impairment and notices of appeal with respect to each defendant. The only issue raised is whether the trial court erred in finding that the police lacked a reasonable, articulable basis to stop defendants' vehicle.

Thomas Sheehan, a police officer for the City of Naperville, testified at the evidentiary hearing that on March 28, 1991, he was assigned to the special enforcement team, a plainclothes patrol unit. His duties included patrolling "major high crime areas," in particular retail malls. At approximately 4 p.m., Sheehan and his partner, Officer Trotsky, were in an unmarked car in the Montgomery Ward's Kids Store (store) parking lot of the Westbridge Court Mall. Sheehan observed defendants and another individual riding in a blue Pontiac Sunbird. Sheehan stated that he had a clear view of the vehicle and its occupants. He identified Frazier as the driver and Person as the front seat passenger. He said that a third individual was seated in the rear of the vehicle. The car parked approximately 50 feet in front of Sheehan's location. Sheehan testified that both defendants exited the vehicle and entered the store together while the other passenger stayed in the car. Frazier was wearing a long, very bulky coat and had nothing in her hands. Person was also wearing a long coat and had nothing in her hands.

Approximately 10 minutes later, Frazier exited the store and returned to the Sunbird. She was not carrying bags or anything else in her arms. Sheehan stated that Frazier's "coat was open, it was not buttoned so I could tell her midsection appeared to be larger than when she first went in." Aside from noting that Frazier appeared to have gained weight since she entered the store, Sheehan stated that, at her midsection, Frazier's coat looked bulkier than it had when she entered the store. After Frazier got into the Sunbird, Sheehan observed her "[m]aking numerous arm movements, body movements, moving back and forth." He described these movements as being "[t]owards her body, towards her midsection," and stated that "[a]fter these numerous movements of her hands moving toward her body she then at one point leaned completely over laying [sic ] down into the front passenger seat and then came back up again. * * * While she was making these movements the brake lights kept going on and off in the car and at one point the left turn signal actually activated." Sheehan acknowledged that the Sunbird had bucket seats which reached to the low part of Frazier's back and that he could not see anything being pulled away from her body. Sheehan also admitted that the police report he prepared regarding this incident stated that Frazier was observed leaning over to the driver's side of the car rather than the passenger's side, but he claimed that that aspect of the report was an error.

Person left the store later. Sheehan stated, "When [Person] walked into the store her arms were at her sides. As she came out of the store her left arm was across her coat holding it tight to her body." Person was not carrying bags or anything else in her arms. Person reentered the Sunbird, and the car left the store's parking lot. Sheehan stated that he did not see anyone pass any objects from the front seat to the rear seat at any time prior to leaving the parking lot.

Sheehan testified that the Sunbird drove out of the parking lot and onto Aurora Avenue, headed toward Illinois Route 59. Sheehan and his partner followed the Sunbird in their vehicle. At the intersection of Aurora Avenue and Route 59, the Sunbird stopped for a red light. While his vehicle was stopped behind the Sunbird for "[j]ust a few seconds" at the light, Sheehan observed Person "removing clothing from the front seat with coat hangers still attached, passing it back to the person in the rear seat, who put it down either next to her or somewhere on the floor, is what it appeared." Sheehan admitted that he could not see where in the front seat the clothing had come from. Sheehan stated that the hangers were white, but he could not tell what color the clothing was. He did not see any tags on the clothing. Sheehan stated that "some clothing" was passed to the rear passenger, but he did not specify the number of articles or the type of clothing.

Sheehan stated that the vehicle turned onto Route 59 and proceeded southbound. Sheehan and Trotsky followed the Sunbird on Route 59 for approximately one-quarter mile and then stopped the car. Sheehan admits that prior to the stop he didn't communicate with anyone from the store, run a warrant check on any of the vehicle occupants, observe the Sunbird violate any traffic laws, or receive any third-party information about the suspects.

Dale Trotsky, a police officer for the City of Naperville, testified that on March 28, 1991, he was also assigned to the special enforcement team and was patrolling the Westbridge Mall with his partner, Officer Sheehan. He testified that defendants got out of the blue Pontiac Sunbird, which was parked about 25 feet away from his location, and entered the store together. Both women were wearing long jackets. He did not recall whether Frazier's jacket was opened or closed, but he stated that he could not see what she was wearing underneath it. A third individual, seated in the rear of the Sunbird, remained in the car. After about 10 minutes, Frazier exited the store and walked back to the vehicle. Trotsky testified that when Frazier came out, "[t]here seemed to be a bulge in the midsection of her person which was different than her appearance when she walked into the store." When asked to describe what he meant by a bulge, Trotsky stated, "It was large in nature to the point where you would think that somebody would be pregnant or something like that." Trotsky stated that when Frazier left the store, her jacket was closed, and he admitted that he could not tell what she was wearing underneath it.

Trotsky testified that Frazier got into the driver's seat of the Sunbird, and he made the following observations:

"She conducted--there was a lot of motion in regards to reaching down, pulling up, continually, the arms going up in the air and down, you know. There was a pulling motion within her own person, is the best way to describe it. * * * Her hand motions were specific to where she was sitting, not anywhere else in the vehicle but just where she was. * * * While she was motioning up and down pulling, making pulling motions, the brake lights on her vehicle were going on and off. She appeared to be tapping the brake, and at one time she made a gesture bearing down to her right as to like lay [sic ] down on the front seat, at which time she moved back up and the turn signal on the vehicle, left turn signal on the vehicle had gone on."

Trotsky stated that at the time Frazier lay down, "[y]ou could still see part of a person, noting that there was motion within the front portion of the vehicle." He admitted that the Sunbird's trunk and seats obstructed his view of the car's occupants, and he was unable to see below their shoulders. Trotsky testified that Frazier's motions could be characterized as either "pulling" or "pushing" motions. Trotsky also stated that at the time Frazier entered the car she began handing items to the passenger in the backseat, but he could not tell what the items were.

Person left the store about five minutes after Frazier had returned to the Sunbird. Trotsky stated that Person was clutching her jacket when she returned to the car, and she was not carrying any bags. After Person got into the front passenger's seat, the Sunbird drove out of the parking lot. It proceeded down Aurora, stopping for a red light at the intersection of Aurora and Route 59. While the vehicle was stopped, Trotsky saw Person handing clothing over the seat to the other passenger, and he could see that the clothing was still on a hanger. He did not recall what type of clothing it was, and he stated that he did not see any tags hanging from the clothing. Trotsky went on to testify that the passenger in the rear of the vehicle made a motion as if to receive the property or items and then made a motion down to the floor area or the area next to her.

Trotsky testified that he did not see either defendant carrying any clothing with her when she exited the car, or when she later entered the car. Trotsky could not recall what type of seats the Sunbird had.

The trial court granted defendants' motions, commenting:

"[L]ooking at the facts in our case you have got the three people in the car, they are observed pulling into the parking lot, two of them go into the store, and the officers, there is some impeachment...