People v. McMichaels

• Decision Date: 29 October 2019
• Docket Number: No. 1-16-3053,1-16-3053
• Citation: 166 N.E.3d 755,2019 IL App (1st) 163053,445 Ill.Dec. 325
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. DeAndre MCMICHAELS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 163053
166 N.E.3d 755
445 Ill.Dec. 325

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
DeAndre MCMICHAELS, Defendant-Appellant.

No. 1-16-3053

Appellate Court of Illinois, First District, SECOND DIVISION.

Filed October 29, 2019
Rehearing denied May 5, 2020

James E. Chadd, Patricia Mysza, and Lauren A. Bauser, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Marci Jacobs, and Delicia D. Zayas, Assistant State's Attorneys, of counsel), for the People.

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

445 Ill.Dec. 328

¶ 1 Following a bench trial, defendant DeAndre McMichaels was convicted of one count of being an armed habitual criminal and was sentenced to eight years' imprisonment. On appeal, he argues that the trial court erred in denying his motion to quash arrest and suppress evidence where 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), and lacked probable cause to arrest him. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged by indictment with one count of being an armed habitual criminal, two counts of unlawful possession of a weapon by a felon, and four counts of aggravated unlawful use of a weapon, arising from an incident in Chicago on May 24, 2016. The State proceeded on one count of the armed habitual criminal offense ( 720 ILCS 5/24-1.7(a) (West 2016)) and one count of unlawful possession of a weapon by a felon (id. § 24-1.1(a)). Defendant filed a motion to quash arrest and suppress evidence, which was heard concurrently with the trial.

¶ 4 Chicago police officer Christopher Cannata testified that on May 24, 2016, at approximately 3:25 p.m., he was on patrol with Officers Patrick Martino and Pavone¹ in an unmarked vehicle near the 4900 block of West Ferdinand Street. The officers received a dispatch regarding "a male black with a black T-shirt, yellow shorts and dreadlocks in possession of a black handgun" near Ferdinand Street and Lamont Avenue. The description matched a person the officers had seen there earlier in the day, whom Cannata identified in court as defendant. When the officers returned to the area, Cannata observed defendant wearing the same clothes and standing with three other men. The officers parked 10 to 15 feet away, exited the vehicle, announced their office, and "asked to see all the individuals's [sic ] hands."

¶ 5 According to Cannata, the three men around defendant showed their hands, but defendant "immediately placed one hand into his right short pockets [sic ] and then began to turn away from us." The officers approached defendant and again asked to see his hands, but he "did not comply." Seconds later, Martino grabbed defendant's shoulder or upper arm. Cannata observed defendant's hand "break free from his pocket" and noticed "the butt and re-slide of a semi-automatic handgun" protruding from the right pocket of his shorts. Cannata seized the firearm, which was loaded with seven live rounds, and defendant

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445 Ill.Dec. 329

was handcuffed. As Cannata and Martino walked defendant to their vehicle, "he blurted out that he just had the gun for protection because he had been shot."

¶ 6 On cross-examination, Cannata stated that he saw defendant at Lamont Avenue and Ferdinand Street in a large group of people "less than an hour" before the dispatch but had no contact with him. At that time, defendant was not holding a weapon, and only his clothing caught Cannata's attention. Cannata never spoke with the person who called the police to report an individual with a firearm and did not know the person's identity. Cannata added that, when the officers exited their vehicle and approached defendant, he turned away but did not make other movements. When Martino grabbed defendant, his hand was in his pocket. Cannata explained that Martino made physical contact with defendant "[f]or our safety, mainly based on his lack of listening to our orders."

¶ 7 Martino testified that he advised defendant of his Miranda rights at the police station. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant stated that he understood his rights and said "the only reason why he had a handgun on his person was for his protection because he ha[d] been shot earlier on that block." On cross-examination, Martino did not recall whether defendant made any statements at the location of his arrest.

¶ 8 The State entered a stipulation between the parties that defendant had two qualifying felony convictions for purposes of the armed habitual criminal statute. Afterwards, the State rested, and defendant moved for a directed finding, which the trial court denied. The defense rested without presenting evidence.

¶ 9 In support of defendant's motion to quash arrest and suppress evidence, defense counsel argued that the call to police, reporting someone with a firearm, was unreliable because nothing established the caller's identity, motive, or basis for knowledge. Counsel posited that the fact that officers noticed defendant wearing the same clothes as the person whom the caller described was insufficient corroboration for a search and seizure and that no probable cause existed because the officers did not observe a firearm until they searched defendant. The State, in response, submitted that "a concerned citizen is ordinarily considered more credible" than a paid informant. Additionally, the State maintained that the officers conducted a valid Terry stop where they were told a person resembling defendant was carrying a firearm and defendant put his hand in his pocket and turned away when the officers approached him and asked to see his hands.

¶ 10 The trial court denied defendant's motion and found him guilty of being an armed habitual criminal and unlawful possession of a weapon by a felon. According to the court, the fact the officers had seen defendant prior to the dispatch "just goes to location" and did not prove "any type of * * * criminal activity." The court explained, however, that defendant's conduct in putting his hand in his pocket and turning away when the officers asked to see his hands, coupled with the officers' knowledge that someone resembling defendant reportedly possessed a firearm, created an "articulable suspicion about officer safety" and, therefore, the Terry stop was justified. The court did not comment whether probable cause existed for defendant's arrest.

¶ 11 Defendant filed a motion for new trial, arguing, in relevant part, that the trial court erred in denying his motion to suppress. The court denied the motion. Following a hearing, the court merged the counts and sentenced defendant to eight

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445 Ill.Dec. 330

years' imprisonment for being an armed habitual criminal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends that the trial court erred in denying his motion to suppress because the officers lacked a reasonable, articulable suspicion to conduct the Terry stop that produced the firearm and his statements. Relying on People v. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, defendant submits that "mere possession of a firearm outside the home, without more, is not a crime" and, therefore, the call about a person with a firearm did not provide the officers with a reasonable suspicion of criminal activity to justify ordering him to show his hands and restraining him when he refused, particularly where he was not engaged in suspicious conduct when the officers observed him. Even if his conduct justified a protective pat down, defendant maintains the recovery of the firearm did not create probable cause for his arrest because, when the officers arrested him, they did not know whether he lacked a concealed carry license or had prior felony convictions.

¶ 14 In the trial court, the defendant has the burden of proof on a motion to quash arrest and suppress evidence. People v. Cregan , 2014 IL 113600, ¶ 23, 381 Ill.Dec. 593, 10 N.E.3d 1196. "If the defendant makes a prima facie showing that the evidence was obtained in an illegal search or seizure, the burden shifts to the State to provide evidence to counter the defendant's prima facie case." Id. However, "[t]he ultimate burden of proof remains with the defendant." Id. On review, the trial court's factual findings will be reversed only when they are against the manifest weight of the evidence ( People v. Manzo , 2018 IL 122761, ¶ 25, 432 Ill.Dec. 598, 129 N.E.3d 1141 ), but the "legal ruling on whether the evidence should be suppressed is reviewed de novo " ( People v. Bonilla , 2018 IL 122484, ¶ 8, 427 Ill.Dec. 863, 120 N.E.3d 930 ).

¶ 15 The fourth amendment to 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 ; see U.S. Const., Amends. IV, XIV ; Ill. Const. 1970, art. I, § 6. Typically, seizures require a warrant supported by probable cause. People v. Johnson ,...