People v. Sanders

• Decision Date: 14 February 2013
• Docket Number: No. 1–10–2696.,1–10–2696.
• Citation: 369 Ill.Dec. 165,2013 IL App (1st) 102696,986 N.E.2d 114
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Detertoring SANDERS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 102696

986 N.E.2d 114

369 Ill.Dec. 165

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

v.Detertoring SANDERS, Defendant–Appellant.

No. 1–10–2696.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 14, 2013.

Michael J. Pelletier, Alan D. Goldberg, Christopher Kopacz, State Appellate Defender's Office, Chicago, for appellant.

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

OPINION

Justice EPSTEIN delivered the judgment of the court, with opinion.

[369 Ill.Dec. 167]¶ 1 After a bench trial, defendant Detertoring Sanders was convicted of the offense of armed habitual criminal and sentenced to 10 years in prison. Defendant appeals contending that the trial court erred in denying his motion to quash arrest and suppress evidence because there were no specific and articulable facts to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For the reasons that follow, we affirm.

¶ 2 At the hearing on defendant's motion to quash arrest and suppress evidence, Officer John Dolan testified that he was on patrol in the vicinity of Normal Avenue and 79th Street in Chicago when he was flagged down by a woman. He described this woman, whom he had not met before, as black, about 5 feet 5 inches tall and “heavy set.” She was wearing black clothes. During their approximately 15–second conversation, the woman told Dolan that she had seen a short black man, aged 30 to 35 years old, wearing a red coat and blue pants put a machine gun into the backseat of a Chrysler with the license plate A739050. She also indicated that the Chrysler was gold or brown and traveling north on Halsted Street. After speaking to this person, Dolan relocated to 7401 South Halsted Street, approximately a mile away.

¶ 3 Two to three minutes later, Dolan saw a Chrysler, driven by defendant, stopped at a light at the intersection of 74th and Halsted. Dolan and fellow officers then placed their vehicles in the front and back of the Chrysler, and defendant was asked to exit the car. As defendant was being taken out of the car, Officer Wagner yelled “gun.” Officer Triantafillo ¹ then recovered a machine gun from the car.

¶ 4 At the time that the car was pulled over, Dolan did not have either an arrest warrant for defendant or a search warrant for the Chrysler. He did not see defendant violate any traffic laws.

¶ 5 Officer Joseph Wagner testified that he and his partner assisted in the stop of the Chrysler based upon information provided over the radio by Dolan. As he approached the Chrysler, he saw defendant sitting inside. He also saw a large black “AR150–type” machine gun in the backseat of the car. He yelled “gun” and ordered defendant out of the car.

¶ 6 In denying the motion, the trial court stated that the citizen who spoke to Dolan had firsthand knowledge of the gun and had provided a specific description of defendant to the officers.

¶ 7 The matter then proceeded to a bench trial. Officer Wagner testified consistently with his testimony at the suppression hearing. He further testified that the two squad cars were positioned around the Chrysler in order to avoid a car chase. When Wagner exited the squad car, he drew his weapon and announced his office as he approached the Chrysler. Wagner saw defendant raise his hands. He also saw a large machine gun located two to three feet away from defendant on the rear bench seat of the car. The gun had a scope, an infrared laser, and a magazine containing 10 rounds. A bag recovered from the car contained two additional magazines.

¶ 8 Defendant was taken into custody and transported to a police station. During a subsequent conversation defendant told Wagner that Clifton “Flex” Hall had paid him $15 to drive the Chrysler from one location to another. Wagner later learned that the Chrysler was registered to Hall.

¶ 9 Ultimately, the trial court found defendant guilty of the offense of armed habitual criminal and sentenced him to 10 years in prison.

¶ 10 Before reaching the merits of defendant's appeal, this court must address the State's argument that defendant forfeited this issue by failing to include it in a posttrial motion. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Defendant concedes that he failed to raise this issue in his posttrial motion and asks this court to review the issue pursuant to the plain error doctrine. In the alternative, defendant contends that he was denied effective assistance of counselby trial counsel's failure to include this issue in a posttrial motion.

¶ 11 Pursuant to the plain error doctrine, this court may address unpreserved errors “when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill.2d 167, 186–87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). The first step in determining whether the plain error doctrine applies is to determine whether any reversible error occurred ( People v. Patterson, 217 Ill.2d 407, 444, 299 Ill.Dec. 157, 841 N.E.2d 889 (2005)), as without reversible error there can be no plain error ( People v. Williams, 193 Ill.2d 306, 349, 250 Ill.Dec. 692, 739 N.E.2d 455 (2000)).

¶ 12 When reviewing a trial court's suppression ruling, this court applies a two-part standard of review. People v. Luedemann, 222 Ill.2d 530, 542, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006). The trial court's factual findings and credibility determinations are entitled to great deference and will be reversed only if they are against the manifest weight of the evidence. People v. Slater, 228 Ill.2d 137, 149, 319 Ill.Dec. 862, 886 N.E.2d 986 (2008). However, the trial court's ultimate legal ruling as to whether suppression was warranted is reviewed de novo. People v. Cosby, 231 Ill.2d 262, 271, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008). De novo review is also appropriate in cases, such as the case at bar, when “the facts and witness credibility are not in dispute.” People v. Roberts, 374 Ill.App.3d 490, 495, 313 Ill.Dec. 399, 872 N.E.2d 382 (2007).

¶ 13 The fourth amendment to the United States Constitution guarantees the right of the people to be free from unreasonable searches and seizures. People v. Gherna, 203 Ill.2d 165, 176, 271 Ill.Dec. 245, 784 N.E.2d 799 (2003). Reasonableness under the fourth amendment generally requires a warrant supported by probable cause. People v. Sorenson, 196 Ill.2d 425, 432, 256 Ill.Dec. 836, 752 N.E.2d 1078 (2001). However, in Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized a limited exception to this requirement which allowed police officers, under appropriate circumstances, to briefly stop a person for temporary questioning when the officer reasonably believed that the person had committed or was about to commit a crime. A vehicle stop, as in this case, is analogous to a Terry stop and is generally analyzed pursuant to Terry principles. People v. Jones, 215 Ill.2d 261, 270, 294 Ill.Dec. 129, 830 N.E.2d 541 (2005).

¶ 14 To justify a Terry stop, a police officer must be able to point to specific and articulable facts which, combined with the rational inferences from those facts, reasonably warrant the intrusion. People v. Thomas, 198 Ill.2d 103, 109, 259 Ill.Dec. 838, 759 N.E.2d 899 (2001). While these facts need not rise to the level of probable cause, a mere hunch is not sufficient. Thomas, 198 Ill.2d at 110, 259 Ill.Dec. 838, 759 N.E.2d 899. Whether an investigatory stop is reasonable is determined by an objective standard ( People v. Nitz, 371 Ill.App.3d 747, 751, 309 Ill.Dec. 185, 863 N.E.2d 817 (2007)), and the facts are viewed from the perspective of a reasonable officer at the time of the stop ( Thomas, 198 Ill.2d at 110, 259 Ill.Dec. 838, 759 N.E.2d 899). A reviewing court “must ‘be mindful that the decision to make an investigatory stop is a practical one based on the totality of the circumstances.’ ” People v. Harris, 2011 IL App (1st) 103382, ¶ 11, 354 Ill.Dec. 336, 957 N.E.2d 930 (quoting In re S.V., 326 Ill.App.3d 678, 683, 260 Ill.Dec. 404, 761 N.E.2d 248 (2001)).

¶ 15 A Terry stop may be initiated based upon information received from a member of the public. Nitz, 371 Ill.App.3d at 751, 309 Ill.Dec. 185, 863 N.E.2d 817. Because not all tips are created equal, “a reviewing court should consider the informant's veracity, reliability, and basis of knowledge” when analyzing a tip. People v. Sparks, 315 Ill.App.3d 786, 792, 248 Ill.Dec. 508, 734 N.E.2d 216 (2000). Ordinarily information from a “concerned citizen” is considered more credible than information from a paid informant or a person who provided the information for personal gain. People v. Linley, 388 Ill.App.3d 747, 750, 328 Ill.Dec. 131, 903 N.E.2d 791 (2009). See also People v. Jones, 374 Ill.App.3d 566, 574, 313 Ill.Dec. 96, 871 N.E.2d 823 (2007) (generally the reliability of an ordinary citizen, unlike that of an informant, need not be established, and, absent an indication to the contrary, information provided by an ordinary citizen is presumed to be reliable); but see People v. Smulik, 2012 IL App (2d) 110110, ¶ 8, 357 Ill.Dec. 820, 964 N.E.2d 183 (where there was no evidence that the tipster contacted the police through an emergency number or provided a name, the tip must be considered anonymous, “and its reliability hinges on the existence of corroborative details observed by the police”). However, even when the information comes from an identified informant, some corroboration or other verification of the reliability of the information is required. Linley, 388 Ill.App.3d at 751, 328 Ill.Dec. 131, 903 N.E.2d 791 (finding “some authority” for the application of a less rigorous standard of corroboration when the tip concerns an imminent threat to public safety). A tip providing...