People v. Qurash

• Decision Date: 16 March 2017
• Docket Number: No. 1-14-3412,1-14-3412
• Citation: 72 N.E.3d 1272,2017 IL App (1st) 143412
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ramsey QURASH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 143412

72 N.E.3d 1272

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

v.Ramsey QURASH, Defendant-Appellant.

No. 1-14-3412

Appellate Court of Illinois, First District, FOURTH DIVISION.

March 16, 2017

Michael J. Pelletier, Patricia Mysza, and Bradley D. Jarka, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Jon Walters, and Michael Vojta, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 A two-count criminal information charged defendant, Ramsey Qurash, with (1) possession of a controlled substance (Diazepam) and (2) possession of cannabis after having previously been convicted of possession of a controlled substance. The Cook County trial judge found defendant guilty of possession of a controlled substance (less than 200 grams of Diazepam) and possession of cannabis (10 to 30 grams) and sentenced him to concurrent prison terms of three years. On appeal, defendant contends that (1) the trial court erred in denying his motion to suppress because the officer's statement of "come here" to defendant was a seizure and (2) the court erred in failing to hold a fitness hearing. For the reasons stated below, we affirm.

¶ 2 I. BACKGROUND

¶ 3 In March 2014, prior to trial and at defense counsel's behest, the trial court ordered a behavioral clinical examination (BCX) of defendant's fitness to stand trial, with and without medication. The court agreed with counsel that a BCX was "a good idea" in light of "defendant's behavior in the courtroom." Defendant balked at counsel's request, reiterating his objection during an April proceeding. In April 2014, psychologist Dr. Erick Neu of the court's forensic clinical services (FCS) reported that he examined defendant that month and opined that he was fit to stand trial. Dr. Neu found that defendant was "not suffering from a mental condition that would compromise his ability to understand the nature of the proceedings against him or to assist in his defense."

¶ 4 In May 2014, psychiatrist Dr. Aarti Mehta of FCS reported that she examined defendant that month and found him fit to stand trial with medications. According to Mehta, defendant expressed understanding of the charges and the nature of the proceedings against him and was capable of assisting in his defense "if he chooses." However, she reported, he "would need to continue his present medications in order to maintain his fitness."¹

¶ 5 After the trial court had received both BCX reports, defendant complained that the BCXs had delayed his case and he wanted to represent himself. The court told defendant that it had ordered the BCXs to determine his fitness to stand trial, noting his "outbursts" of speaking out-of-turn. The court ascertained from defendant that he took his medication that day. The court ordered FCS to provide copies of Dr. Mehta's psychiatric summary and Dr. Neu's psychological summary to the State and defense. In June 2014, the court and parties acknowledged receiving the summaries. Defense counsel filed his answer and requested a July 2014 trial date, which the court set.

¶ 6 At trial, Chicago police officers Stephen Gregory and Kimberly Oppedisano testified that they were on patrol in an unmarked police car at about 7:30 p.m. on January 9, 2014. As officer Gregory drove slowly northbound on the 1600 block of North Tripp Avenue, both officers saw defendant walking toward them southbound on a sidewalk along the west side of the street. Officer Gregory recognized defendant from the neighborhood. When the officers were about 15 feet away from defendant, officer Gregory stopped the police car, lowered his window, and said to defendant, "come here."

¶ 7 As officer Gregory called him, defendant dropped a large white bottle into the snow on the parkway. He did not make any other furtive movements, nor did he try to flee. When he saw defendant drop the object, officer Gregory stopped the car, got out, and walked over to where defendant dropped the bottle. Officer Gregory picked up the bottle, noting there was nothing on the ground nearby nor was there another person nearby. The white bottle had no label and contained 26 bags of a green leafy material officer Gregory suspected to be cannabis. At this point, officer Gregory told officer Oppedisano to arrest defendant. While searching defendant, officer Oppedisano found in his pants pocket two more bottles, one with no label and the other with a torn-off label. Officer Oppedisano found no prescription for the substances. One bottle contained 10 yellow pills and yellow pill fragments, and the other had 9 white pills and white pill fragments.²

¶ 8 Defendant testified that he was walking to the store when a police car passed by slowly. Defendant recognized the officers from the neighborhood. The male officer lowered the car window and said "come here" to defendant. The assistant State's Attorney asked defendant, "[t]he male officer asked you to come over to their car, right?", to which defendant replied, "[y]ep." The State again asked defendant, "when they asked you to come over to their car, you said, ‘all right, sure’, and walked right up?" Defendant replied, "I did. I walked right up. But I didn't have nothing in my hand when I walked up." According to defendant, as he walked to the car, officer Gregory walked past him toward the sidewalk. Officer Gregory did not stop to talk to defendant as he walked past.

¶ 9 Following defendant's testimony, defense counsel made an oral motion to quash arrest and suppress evidence, to be taken with the case.³ The trial court allowed counsel to make the oral motion but ultimately denied it.

¶ 10 Following arguments on the trial evidence, the trial court found defendant guilty of both possession of cannabis and possession of a controlled substance (Diazepam). The court stated that the testimony of officers Gregory and Oppedisano was clear and partially corroborated by defendant. The court found the fact that officer Gregory saw defendant drop the bottle and then saw no other person in the area or objects on the ground nearby before recovering the bottle proved that defendant possessed the bottle and its contents. Moreover, the court noted, defendant admitted he possessed the bottles found in his pants pocket.

¶ 11 Defendant filed a motion for a new trial, challenging the sufficiency of the trial evidence but not the absence of a fitness motion, and a motion to reconsider the denial of his motion to quash arrest. He argued that the officers searched him without consent or probable cause. The trial court denied the motions, reiterating its finding that the officers' testimony was credible. The court then sentenced defendant to concurrent three-year prison terms.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, defendant argues (1) the trial court erred in denying his motion to suppress because the officer's statement of "come here" to defendant was a seizure and (2) the court erred in failing to hold a fitness hearing. We address defendant's arguments in turn.

¶ 15 A. Does the Statement "Come Here," Uttered by a Police Officer to a Citizen, Result in a Seizure?

¶ 16 Defendant first challenges the trial court's denial of his motion to quash arrest and suppress statements. Defendant contends that the court erred in denying his motion to quash because he was seized at the moment officer Gregory said, "come here." According to defendant, the officers lacked a reasonable suspicion or probable cause for this seizure. Therefore, defendant claims, the drugs that he dropped to the ground as well as those recovered from his person should have been suppressed.

¶ 17 The question presented is deceptively simple: as a matter of law, do the words "come here," uttered by a police officer to a citizen, result in a seizure? The trial court, after listening to both the officers and defendant testify, found that defendant's encounter with the officers was consensual and did not implicate defendant's constitutional rights. Because we conclude that the determination of whether the statement "come here" is a request or command is a question of fact and because we conclude the trial court's finding in this regard was not against the manifest weight of the evidence, we find no reason to disturb the trial court's denial of defendant's motion to quash arrest and suppress evidence.

¶ 18 Police-citizen encounters are divided into three tiers: arrests, which must be supported by probable cause; brief investigatory detentions or Terry stops, which must be supported by reasonable and articulable suspicion of criminal activity; and consensual encounters that involve no coercion or detention and thus do not implicate constitutional rights. People v. Almond , 2015 IL 113817, ¶¶ 52, 56, 392 Ill.Dec. 227, 32 N.E.3d 535 ; People v. Williams , 2016 IL App (1st) 132615, ¶ 34, 407 Ill.Dec. 73, 62 N.E.3d 318.

¶ 19 A person is seized when his freedom of movement is restrained by physical force or a show of authority. Almond , 2015 IL 113817, ¶ 57, 392 Ill.Dec. 227, 32 N.E.3d 535. The test is whether a reasonable person would conclude, in light of the totality of the circumstances, that he was not free to leave. Id. Following the United States Supreme Court's decision in United States v. Mendenhall , 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J., joined by Rehnquist, J.), the Illinois Supreme Court adopted the Mendenhall plurality factors indicating a seizure when the person does not attempt to leave: (1) the threatening presence of several officers, (2) the display of a weapon by an officer, (3) the physical touching of the person, and (4) the use of language or tone of voice compelling the person to comply with the officer's requests. Almond , 2015 IL 113817, ¶ 57, 392 Ill.Dec. 227, 32 N.E.3d 535. The absence of any of these factors is not dispositive but...