People v. Rafeal E. (In re Rafeal E.)

Decision Date16 May 2014
Docket NumberNo. 1–13–3027.,1–13–3027.
PartiesIn re RAFEAL E., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Rafeal E., a Minor, Respondent–Appellant).
CourtUnited States Appellate Court of Illinois

Michael J. Pelletier, Alan D. Goldberg, and Gabriell Green, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Eve Reilly, and Whitney Bond, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice GORDON

delivered the judgment of the court, with opinion.

¶ 1 Minor respondent Rafeal E. was adjudicated delinquent for possession of controlled substances (heroin and cocaine) and sentenced to 18 months' probation. On appeal, respondent contends that the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence, and he requests that the adjudication of delinquency entered on both counts of possession be reversed.

¶ 2 BACKGROUND

¶ 3 A petition for adjudication of wardship was filed on June 12, 2013, alleging that respondent was delinquent based on his being in possession of less than 14 grams of a substance containing heroin and less than 15 grams of a substance containing cocaine. Respondent filed a motion to quash his arrest and suppress evidence, alleging that he was seized without probable cause, or a reasonable, articulable suspicion of criminal activity, and without a warrant or exigent circumstances negating the need for such. Respondent thus sought suppression of the evidence seized as a result of the illegal arrest and seizure.

¶ 4 At the suppression hearing, Chicago police officer Millan testified that on May 25, 2013, he and his partner were in uniform in a marked squad car, patrolling the area of 1139 North Lawndale Avenue, and assigned to Direct Commission, Operation Impact.” Officer Millan testified that he knew the area to be a “high narcotics location” based on the drug-related arrests he had made on that block in the prior two months.

¶ 5 Officer Millan further testified that at 10 a.m. that day, he observed respondent standing and talking with four to six other individuals at the mouth of an alley. He acknowledged that when he first observed respondent standing there, respondent was not violating any laws. Defense counsel asked him whether he had an opportunity to approach and speak with respondent, and the officer answered, “Yes.” Defense counsel also asked, “And when you spoke with the minor respondent, did you ask him to take his hands out of his pants?” and the officer clarified, “Out of his pockets,” then answered, “Yes.” After Officer Millan testified that he did not have a warrant to arrest or search respondent, defense counsel asked, “And at the time that the minor raised his hands, did you recover anything from the minor?” and the officer answered, “Yes.” Officer Millan testified that he recovered a clear plastic bag with 10 individual ziploc bags with yellow tape from respondent's waistband. He then placed respondent in custody and recovered a green ziploc bag containing 10 individual knotted plastic baggies of suspected crack cocaine from his back pocket. Officer Millan testified that respondent made no statements to him at that time, and he acknowledged that the items recovered from respondent would be used against him by the State. Defense counsel then asked, “Officer, at the time that the minor respondent took his hands out of his pockets that was in response to your order, correct?” and the officer answered, “Yes.”

¶ 6 On cross-examination by the State, Officer Millan stated that he first observed respondent from a distance of 20 to 25 yards, and that respondent looked in his direction and walked away from the group. He then described the manner in which respondent walked away as “like a brisk walk, with his hands in his pockets,” and, after observing this, he drove directly parallel to respondent and asked him to stop. After respondent complied with his request, Officer Millan asked respondent to remove his hands from his pockets. When the State asked the officer why he made this request, he answered “for officer safety.” The State then asked, “And when he removed his hands, where did he put them?” and the officer answered, He put them straight up in the air.” When the State asked if respondent's shirt lifted up as a result, the officer answered, “Yes, it did.” Then, Officer Millan stated that he observed that “the top of [respondent's] pants were sagging down near his—his butt” and a plastic baggie protruding from respondent's waistband. When asked, “And you could see that after he had taken his hands out of his pockets, right?” the officer answered, “Correct.” When asked, “Did you ask him to put his hands up in the air?” the officer answered, “No, actually I told him to put his hands up after I saw him with his hands in his pockets and he just put them straight up.”

¶ 7 On further cross-examination, when asked, “And in your experience did you know what that plastic baggie was?” Officer Millan stated, “Based on my experience, I believed it was narcotics,” explaining that a clear plastic sandwich bag is mostly used to carry small individual ziploc baggies. For that reason, he recovered the clear plastic bag and placed respondent in custody, whereupon a custodial search of respondent revealed a green ziploc bag in his back pocket containing 10 knotted baggies of suspected crack cocaine. Then, the State asked, “Now, let's move back to when you first approached minor respondent, did you ask him any other questions other than take your hands out of your pockets?” and the officer answered, “No.” When asked, “And when you recovered the ziploc baggie that you saw protruding from minor respondent's—the top of his underwear, what did you find to be in that baggie?” the officer answered, “A white clear powdery substance, suspect white heroin.” No further testimony was presented.

¶ 8 During argument, defense counsel contended that the motion should be granted because there was no reasonable suspicion, probable cause, or any other reason for Officer Millan to approach respondent and take a plastic bag out of his pants. Counsel pointed to Officer Millan's testimony that he did not observe respondent violating any laws, that respondent simply looked in his direction and walked away, and that respondent complied with his order to take his hands out of his pockets and raise his hands, thereby exposing the plastic sandwich bag protruding from his waistband. Counsel argued that Officer Millan did not know what was in that bag, and while it could have been anything, there was no reason to suspect that respondent was armed and dangerous and, thus, there was no reason to recover the bag. The State asked that the motion be denied because there was probable cause to arrest respondent when the plastic sandwich bag protruded from his waistband “ in plain view.” The State also argued that respondent was not in custody when Officer Millan merely asked him to take his hands out of his pockets. When the trial court asked the parties if there was anything else to add, defense counsel stated, “Just that the State is correct in that the officer saw a plastic baggie in plain view. He did not see drugs in plain view.”

¶ 9 In denying the motion to quash defendant's arrest and suppress evidence, the trial court found that Officer Millan had probable cause “based on seeing the bag and his experience as a police officer.” The court noted that Officer Millan told respondent to take his hands out of his pockets, not put them “up in the air,” and commented that “maybe if he had taken his hands out of his pockets and then just put them at his side his shirt wouldn't have lifted up and his pants wouldn't have sagged down,” revealing the plastic sandwich bag protruding from his waistband. The court also found that once the officer saw the baggie in respondent's underwear, he had a duty to investigate further, stating that although baggies are used for sandwiches, “most people don't carry their sandwiches in their underwear frankly. So once [Officer Millan] recovered that, the search incident to arrest is fine.”

¶ 10 At trial, Officer Millan provided testimony similar to that given at the hearing on respondent's motion to quash arrest and suppress evidence. He added that on the date in question, he was working in his capacity as a member of the “Area North, Saturation Team.” He testified that respondent took his hands out of his pockets, as requested, and then “put his hands straight up in the air and I saw a clear plastic baggie protruding from his waistband.” He added that the recovered contraband remained in his constant care, custody, and control at all relevant times. Further evidence at trial included stipulated testimony regarding the forensic analysis and positive identification of the contraband as heroin and cocaine. The trial court found respondent guilty of both counts of possession of a controlled substance beyond a reasonable doubt and adjudged him a delinquent minor.

¶ 11 ANALYSIS

¶ 12 In this appeal, respondent contends that the trial court erred in denying his suppression motion by finding that there was sufficient reasonable suspicion for the police to stop him. He also challenges the propriety of the subsequent seizure of the plastic sandwich bag protruding from his waistband as exceeding the scope of a Terry stop.

¶ 13 I. Standard of Review

¶ 14 When reviewing a trial court's ruling on a motion to quash an arrest and suppress evidence, we accord great deference to the trial court's factual findings unless they are against the manifest weight of the evidence, but review de novo the legal question of whether suppression is warranted under those facts. People v. Hopkins, 235 Ill.2d 453, 471, 337 Ill.Dec. 465, 922 N.E.2d 1042 (2009)

. Here, respondent does not contest the credibility of the witnesses, but challenges ...

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    • United States
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    ...have a reasonable, articulable suspicion that an individual was involved in criminal activity or is armed and dangerous. In re Rafeal E., 2014 IL App (1st) 133027, ¶ 25, 383 Ill.Dec. 206, 14 N.E.3d 489 (citing People v. Tate, 367 Ill.App.3d 109, 115, 304 Ill.Dec. 883, 853 N.E.2d 1249 (2006)......
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    ...them from either exiting the vehicle or driving away from the scene, and began putting questions to the occupants); In re Rafeal E. , 2014 IL App (1st) 133027, ¶ 21, 383 Ill.Dec. 206, 14 N.E.3d 489 (finding that the officer's order to the respondent to " ‘put his hands up" constituted "a sh......
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    ...and case precedent to decide whether a seizure occurred.¶ 33 Among the many cases cited by the dissent is the case of In re Rafeal E. , 2014 IL App (1st) 133027, ¶ 20, 383 Ill.Dec. 206, 14 N.E.3d 489, wherein this court found that there was a seizure based upon the officers pulling alongsid......
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    ...explained that a defendant putting his hands in the pockets of his saggy pants not to be indicative of criminal activity. In re Rafeal E. , 2014 IL App (1st) 133027, ¶ 30, 383 Ill.Dec. 206, 14 N.E.3d 489 ("Putting something in one's pockets, in this case, one's hands, is not a hallmark of c......
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