People v. Johnson

• Decision Date: 25 July 2019
• Docket Number: 1-16-1104
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jamal JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 161104

160 N.E.3d 948

442 Ill.Dec. 768

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

v.Jamal JOHNSON, Defendant-Appellant.

1-16-1104

Appellate Court of Illinois, First District, Second Division.

July 25, 2019

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

¶ 1 Following a bench trial, defendant, Jamal Johnson, was convicted of one count of aggravated unlawful use of a weapon and sentenced to 13 months' imprisonment. On appeal, he argues that (1) the trial court erred in denying his motion to quash arrest and suppress evidence because police officers conducted an unreasonable stop and search in violation of Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (2) his right of confrontation was violated when the State used a certified document to show he did not have a Firearm Owner's Identification (FOID) card, and (3) his fines and fees order failed to offset certain charges with presentence credit. We affirm and remand the fines and fees issues to the trial court pursuant to Illinois Supreme Court Rule 472 (eff. Mar. 1, 2019).

¶ 2 Johnson was charged by indictment with eight counts of aggravated unlawful use of a weapon arising from an incident in Chicago on September 1, 2015. The State nol-prossed all counts except one, which alleged aggravated unlawful use of a weapon predicated on Johnson's failure to possess a FOID card ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2014)). Before trial, Johnson filed a motion to quash arrest and suppress evidence, arguing that his arrest was an unreasonable seizure in violation of the fourth amendment of the United States Constitution ( U.S. Const., amend. IV ) and that the evidence discovered as a result of his arrest and detention should be suppressed. The trial court heard Johnson's motion simultaneously with the trial.

¶ 3 On September 1, 2015, at about 12:55 a.m., Chicago police officer Richard Salvador was working with three other officers in an unmarked vehicle in "an area known for high narcotic and gang activity." As they drove eastbound down an alley north of 69th Street between Paulina Street and Hermitage Avenue, Salvador observed Johnson standing in the middle of the alley. Johnson turned toward the officers, saw them, and then "grabbed onto the front of his waistband and continued walking briskly eastbound as if to avoid" them.

According to Salvador, this gesture is common "for people who are trying to hold onto and conceal a weapon." The officers drove further eastbound "in an attempt to perform a [street] stop on the defendant" with another squad car "exactly behind" them. Once the officers exited their vehicles, Johnson turned and ran westbound toward the squad car. The officers chased him, and he held "onto his waistband to secure an object" and jumped onto the squad's hood. After the officers "observed [defendant] standing on the hood of the squad car with no way to make good his escape," Salvador "conducted a protective pat-down." In the front portion of Johnson's waistband, Salvador felt a "large hard object resembling a firearm," and he recovered a loaded semiautomatic handgun. An officer delivered Miranda warnings, and Johnson said, "I carry [the gun] for protection because I've gotten shot before." The officers transported him to a police station, and Salvador inventoried the gun. Salvador did not memorialize Johnson's statement.

¶ 4 The State entered into evidence an Illinois State Police certification, which stated:

"Based on the following name and date of birth information provided by the Cook County State's Attorney's Office, I, Executive I Tracey Schultz, Firearms Service Bureau (FSB), Illinois State Police, do hereby certify, after a careful search of the FSB files, the information below to be true and accurate for Jamal D. Johnson whose date of birth is August 5, 1995, has never been issued a FOID or CCL Card as of October 7, 2015."

Defense counsel did not object to admission of the certification.

¶ 5 The State rested, and the trial court denied Johnson's motion for directed finding. Johnson rested without presenting any evidence.

¶ 6 In support of Johnson's motion to quash arrest and suppress evidence, defense counsel argued that the police officers did not have a sufficient basis to subject Johnson to a Terry stop and pat down since "all he was doing was standing in an alley and touching his waistband." She further asserted that the fact that Johnson ran away was not a sufficient basis to conduct a Terry stop. The assistant state's attorney argued that Johnson was not detained until after he jumped onto the squad car. She further noted that Johnson was seen in a "high crime area," and that he "grabbed his waistband, looked in the officers' direction and took off running trying to make good his escape over another Chicago police vehicle." According to the assistant state's attorney, "[a]t that point, the officer certainly had reasonable articulable suspicion to stop the defendant."

¶ 7 Before ruling on Johnson's motion, the court heard closing arguments for the trial. Defense counsel argued that the State failed to prove Johnson guilty beyond a reasonable doubt because it presented the testimony of only one officer, who did not memorialize Johnson's statement. Defense counsel neither mentioned the Illinois State Police certification nor raised whether the State proved that Johnson lacked a valid FOID card. The State responded that Salvador "testified clearly and credibly" and "there was no impeachment of his testimony." Based on Salvador's testimony, as well as the Illinois State Police certification, the State argued there was sufficient evidence to find Johnson guilty of aggravated unlawful use of a weapon.

¶ 8 The trial court denied Johnson's motion to quash arrest and suppress evidence and found him guilty of aggravated unlawful use of a weapon. The court recognized that Johnson "ha[d] a right to be in the alley." Nonetheless, it also observed Johnson was in a "high crime area" and "made a motion towards his waistband," which Salvador believed indicated that Johnson was armed. The trial court found that Johnson was not detained until after he ran and jumped onto the hood of a police car, at which point the officers had "articulable suspicion to * * * detain Mr. Johnson" and "pat him down."

¶ 9 Johnson filed a motion to reconsider the trial court's denial of his motion to quash and suppress, as well as a motion for new trial. Defense counsel argued that it was "completely legitimate" for Johnson to stand in the alley and hold his waistband. Thus, the police officers did not have a basis to stop and pat down Johnson, regardless of whether he ran from them and jumped on a police car, since they did not have a reason to approach him in the first place. Defense counsel also generally argued that the State did not prove Johnson's guilt beyond a reasonable doubt but did not raise whether the State failed to prove he lacked a valid FOID card.

¶ 10 The trial court denied Johnson's motions, sentenced him to 13 months' imprisonment, and denied his motion to reconsider sentence. Johnson received 199 days of presentence credit and was charged $719 in fines and fees.

¶ 11 On appeal, Johnson first argues that the trial court erred in denying his motion to suppress because the police officers lacked a reasonable, articulable suspicion to conduct the Terry stop that produced the gun and statement that were admitted at trial. According to Johnson, there was no basis for the police officers to suspect that he was involved in criminal activity since his actions in the alley did not appear unlawful. The State responds that after Johnson held his waistband, ran from the police, and jumped onto the squad car's hood, a Terry stop and protective pat down were justified.

¶ 12 When reviewing a trial court's ruling on a motion to suppress, we accord deference to the trial court's factual determinations and will only reverse when those findings are against the manifest weight of the evidence. People v. Close , 238 Ill. 2d 497, 504, 345 Ill.Dec. 620, 939 N.E.2d 463 (2010). This standard is "grounded in the reality that the trial court is in a superior position to determine and weigh the credibility of witnesses, observe the witnesses' demeanor, and resolve conflicts in the witnesses' testimony." People v. Sorenson , 196 Ill. 2d 425, 431, 256 Ill.Dec. 836, 752 N.E.2d 1078 (2001). However, we "review de novo the court's ultimate decision to grant or deny the motion." Close , 238 Ill. 2d at 504, 345 Ill.Dec. 620, 939 N.E.2d 463. When affirming the trial court's denial of a motion to suppress, the reviewing court may consider evidence presented both at trial and at the suppression hearing. People v. Caballero , 102 Ill. 2d 23, 34-36, 79 Ill.Dec. 625, 464 N.E.2d 223 (1984) ; People v. Lawson , 2015 IL App (1st) 120751, ¶ 28, 390 Ill.Dec. 532, 29 N.E.3d 464.

¶ 13 The fourth amendment of the United States Constitution and the Illinois Constitution of 1970 both "guarantee the right of individuals to be free from unreasonable searches and seizures." People v. Colyar , 2013 IL 111835, ¶ 31, 374 Ill.Dec. 880, 996 N.E.2d 575 ; U.S. Const., amend. IV ; Ill. Const. 1970, art. I, § 6. "Reasonableness under the fourth amendment generally requires a warrant supported by probable cause." People v. Flowers , 179 Ill. 2d 257, 262, 227 Ill.Dec. 933, 688 N.E.2d 626 (1997). But "a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime." Close , 238 Ill. 2d at 505, 345 Ill.Dec. 620, 939 N.E.2d 463 (citing Terry , 392 U.S. at 22, 88 S.Ct. 1868 ). Additionally, "when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others, the officer may conduct a pat-down search to determine whether the person is in fact carrying a...