People v. Gomez

• Decision Date: 03 April 2018
• Docket Number: No. 1–15–0605,1–15–0605
• Citation: 105 N.E.3d 901,2018 IL App (1st) 150605
• Parties: PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Eduardo GOMEZ, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 150605

105 N.E.3d 901

PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Eduardo GOMEZ, Defendant–Appellant.

No. 1–15–0605

Appellate Court of Illinois, First District, SECOND DIVISION.

Filed April 3, 2018

Rehearing denied May 3, 2018

Michael J. Pelletier, Patricia Mysza, and Michael Gomez, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Joseph Alexander, and Brenda K. Gibbs, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 Following a bench trial, defendant Eduardo Gomez was convicted of being an armed habitual criminal (AHC) ( 720 ILCS 5/24–1.7 (a) (West 2014) ), of aggravated unlawful use of a weapon (AUUW) ( 720 ILCS 5/24–1.6 (West 2014) ), and of unlawful use of a weapon by a felon ( 720 ILCS 5/24–1.1 (West 2014) ). He was sentenced to three concurrent terms of seven years' imprisonment and assessed various fines, fees, and costs. On appeal, defendant argues that (1) the circuit court erred in denying his pretrial motion to suppress, (2) his aggravated unlawful use of a weapon conviction should be vacated, and (3) the fines, fees, and costs imposed by the circuit court should be reduced. For the reasons set forth herein, we affirm defendant's convictions for the offenses of armed habitual criminal and unlawful use of a weapon by a felon; however, we vacate his aggravated unlawful use of a weapon conviction. In addition, we remand the matter to the circuit court with instructions to modify its order assessing fines, fees, and costs.

¶ 2 BACKGROUND

¶ 3 On July 3, 2014, following an encounter with several Chicago police officers, defendant was found to be in possession of a loaded firearm and was charged with multiple offenses, including armed habitual criminal, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon. After being taken into police custody, defendant admitted to possessing the firearm.

¶ 4 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing that he was unlawfully detained and searched absent probable cause or a warrant in violation of his constitutional rights. As such, he contended that suppression of the firearm and his incriminatory statement was warranted.

¶ 5 The circuit court subsequently presided over a hearing on defendant's motion. At the hearing, defendant's friend, Frankie Baez, testified that at approximately 10:45 p.m. on July 3, 2014, he, defendant, and their mutual friend, Enriquez Salvador (Junior), were sitting in a parked vehicle located near the intersection of 52nd Street and Kildare Avenue. Baez explained that they were waiting for his girlfriend to join them. The vehicle in which they were sitting was owned by Junior's father, who operated a taxi company. Baez described the vehicle as a white "taxi car."¹ Junior was seated in the driver's seat of the vehicle, defendant was seated in the backseat directly behind Junior, and Baez was seated in the backseat next to defendant. While the three men were seated in the parked vehicle, an unmarked "cop car," containing three plain-clothes officers, pulled up alongside of them. The officers "flashed their lights" on the men, drew their weapons, and ordered Baez, Junior, and defendant to raise their hands and exit the vehicle. The three men complied. Baez testified that after he and defendant exited the vehicle, they placed their hands on opposite sides of the trunk. The officers then began searching them. As they were doing so, the officers heard a noise. Baez explained: "As they were searching us I guess they had like heard the noise of the firearm I guess fell on the floor and that's when they had right away put the flashlight all over [and] under the car and stuff." The officer who was closest to defendant then bent down and recovered a firearm from underneath the car. Baez testified that the officers did not present a search warrant or an arrest warrant for defendant at any time during the encounter.

¶ 6 On cross-examination, Baez acknowledged that defendant was a good friend whom he had known for several years. When asked additional details about the night in question, Baez admitted that the three men had been driving around the neighborhood in Junior's father's car for at least 40 minutes before stopping the vehicle on 52nd Street. He estimated that they were sitting in the parked vehicle for 10 to 15 minutes before the police officers arrived on the scene. Baez also acknowledged that when the officers pulled up alongside of Junior's father's car, the officers did not immediately exit their unmarked car and order the men to raise their hands in the air; rather, the officers remained seated in their vehicle and spoke to Junior while the windows of the two vehicles were rolled down and inquired what the three men were doing in the neighborhood that night. During the course of this conversation, Baez admitted that defendant started "scooting down in his seat," which was located right behind Junior's seat. Baez further admitted that defendant was hiding a gun in his waistband. In addition, he acknowledged that the officers exited their unmarked vehicle only after they observed defendant scooting down in his seat. The officers then ordered each of the men to show their hands. Although defendant complied with the officers' request and raised his hands, Baez admitted that defendant continued scooting down in the backseat until they were all ordered to exit the car. As Baez and his friends exited the vehicle, he heard one of the officers reference a noise, saying "What was that? What was that? What was that?" The officers then used their flashlights to illuminate the ground and recovered defendant's gun next to where defendant was standing. Baez, however, denied that he heard the sound of a gun dropping.

¶ 7 Following Baez's testimony, the defense rested, and defense counsel moved for a directed finding, which the circuit court denied. The State then called Chicago police detective Anthony Amato to testify. Detective Amato testified that on July 3, 2014, he was working with Sergeant Karczewski and Officer Daniel Pacelli. The three officers were wearing plain clothes and were riding in an unmarked police vehicle. Detective Amato, the driver of the unmarked police car, confirmed that at approximately 10:45 p.m. that evening, he and his partners encountered defendant, who was a passenger in a white Mercury Grand Marquis parked near the area of 4242 West 52nd Street. He explained that he had observed the vehicle on two prior occasions during a 30 to 40 minute period of time as he and his partners patrolled the area. During the previous two occasions that he observed the Grand Marquis, the vehicle was moving. On this occasion, however, the vehicle was parked facing westbound on 52nd Street. After observing the same vehicle for the third occasion in a short period of time, Detective Amato pulled up next to the vehicle and began speaking to the driver of the Grand Marquis through his open car window. He explained that he asked the driver "what he was doing, [and] if he lived around there." The driver initially responded that he lived down the street; however, when Detective Amato asked him to identify his "exact address," the driver admitted that he did not live down the street, but resided somewhere on the "other side of Pulaski."

¶ 8 As he spoke to the driver of the Grand Marquis, Detective Amato was able to observe defendant, who was seated directly behind the driver in the rear of the vehicle. When the conversation began, defendant was "seated upright" with his torso visible to the officers. As the conversation proceeded, however, defendant began "slouching down in the car. * * * He just kept on like steadily slouching down as [the officers] were talking to the driver. So his head was, you could only see like his head at one point in time." Detective Amato categorized defendant's behavior as "suspicious." Based on defendant's suspicious behavior and the driver's responses to his inquiries, Detective Amato and his partners exited their unmarked vehicle and approached the parked Grand Marquis. Detective Amato and Sergeant Karczewski walked to the driver's side of the vehicle while Officer Pacelli relocated to the passenger side of the vehicle. As Detective Amato stood by the driver's side of the Grand Marquis, he observed defendant leaning away from him and "toward the middle portion of the seat" with his right forearm covering the waistband of his pants. Defendant's right hand "was actually under his shirt." Detective Amato again found defendant's behavior to be "suspicious," and as a result, he asked to see defendant's hands. Initially, defendant only raised his left hand into the air and continued positioning his right arm and hand "along his waistband." He then "started showing his right hand," while still attempting to use his right forearm to shield the waistband of his pants. Based on his observations of defendant's behavior, Detective Amato "believed that [defendant] had a weapon on him" and ordered all three occupants of the Grand Marquis to exit the vehicle. Defendant and the two other men complied. As defendant was exiting the vehicle, he "still had his arm over his waistband." After he completely extricated himself from the car, however, he then immediately "turned around and he bent his entire body over the rear of the car." In response, Sergeant Karczewski "grabbed [defendant] by his arms and stood him upright." When he did so, a handgun dislodged from defendant's waistband and fell to the ground. Detective Amato immediately recovered the gun, which was loaded, and defendant was then placed into custody.

¶ 9 On cross-examination, Detective Amato categorized the area in which the Grand Marquis was parked as "residential." He could not recall whether there were any vehicles parked immediately...