People v. Tyreke H. (In re Tyreke H.)

CourtUnited States Appellate Court of Illinois
Citation89 N.E.3d 914,2017 IL App (1st) 170406
Docket NumberNo. 1-17-0406,1-17-0406
Parties IN RE TYREKE H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Tyreke H., Respondent-Appellant.)
Decision Date28 September 2017

2017 IL App (1st) 170406
89 N.E.3d 914

IN RE TYREKE H., a Minor

(The People of the State of Illinois, Petitioner-Appellee,
v.
Tyreke H., Respondent-Appellant.)

No. 1-17-0406

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed September 28, 2017
Rehearing denied November 13, 2017


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

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Joseph Alexander, and Edith Rios, Assistant State's Attorneys, of counsel), for the People.

JUSTICE ELLIS delivered the judgment of the court.

¶ 1 Minor respondent Tyreke H. (Respondent) was riding his bicycle on Waveland Avenue when two police officers, wishing to speak with him not as a suspect but as a potential witness to a homicide, stopped their squad car in Respondent's path of travel in the middle of the street. When stopped, officers spotted a bulge in his pocket that resembled a firearm. Respondent confirmed his identity to the officers and admitted that he was in possession of a firearm. He was adjudicated delinquent of two counts of aggravated unlawful use of a weapon and one count of unlawful possession of firearms.

89 N.E.3d 919

¶ 2 Respondent claims he was unreasonably seized and unreasonably searched in violation of the fourth amendment. The trial court initially agreed and suppressed the evidence of the gun, then reconsidered and reversed its ruling, leading to Respondent's adjudication of delinquency on the gun charge.

¶ 3 We affirm. We hold that a seizure did take place, but that the seizure was reasonable under the circumstances. We further agree with the trial court that the search did not violate the fourth amendment.

¶ 4 I.

¶ 5 On August 11, 2016, the State filed a petition for adjudication of wardship, charging Respondent with two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of firearms (UPF). The first AUUW count was premised on Respondent's possession of a gun while he was not in his home, was under 21 years of age, and was not engaged in lawful activities under the Wildlife Code. The other AUUW count was based on Respondent's possession of a handgun when he had not been issued a currently valid Firearm Owner's Identification (FOID) Card. The UPF count was premised on his possession of a concealed handgun while he was under 18 years of age.

¶ 6 Respondent filed a motion to quash arrest and suppress evidence. He claimed the stop, search, and interrogation went beyond the scope of an investigative stop pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He argued that the officers had no reasonable, articulable belief that he was armed, nor any reasonable articulable suspicion that he was in the process of committing, or was about to commit, any crime.

¶ 7 On September 12, 2016, the trial court held a hearing on Respondent's motion. Officer Gerald Ludwich, a Chicago police officer, testified that, on August 10, 2016, at approximately 1:30 p.m., he was on duty in an unmarked car in the area of 5640 West Waveland with his partner, Officer John Rottman. Both were in plain clothes with vests that displayed a badge and name tag.1

¶ 8 The officers were assisting Area North detectives in a homicide investigation. The detectives had asked them to locate Respondent as a possible witness and request that Respondent accompany them to headquarters for questioning about the homicide. The officers had been given a photograph of Respondent and information as to his home location.

¶ 9 While in the area of West Waveland, the officers saw an individual they believed to be Respondent riding a bicycle. Officer Ludwich testified that when he first saw Respondent, there was a bulge in Respondent's right front jeans pocket. He was about 75 feet away at the time.

¶ 10 Both Respondent and the officers were traveling eastbound. The officers drove past Respondent, visually confirmed his identity, and stopped the car just in front of Respondent, just east of him, so that he would ride directly to them. At that point, the distance between Respondent and the officers "was only ten feet possibly," but the distance was decreasing as Respondent continued traveling eastbound towards the officers.

¶ 11 The officers got out of their vehicle as Respondent stopped before them. Officer Rottman, the driver, asked Respondent for his name. Respondent identified himself, cooperated, and made no furtive movements either before or during the stop. Officer Ludwich testified that, after

89 N.E.3d 920

they confirmed that Respondent was Tyreke H., it was Officer Ludwich's intention to ask Respondent some questions and ask whether he was willing to go down to the station.

¶ 12 Officer Ludwich came around the rear of the car and approached Respondent from behind. When he was about four feet away, he saw the bulge in Respondent's pocket. He testified that this bulge appeared "to be basically a handgun in [Respondent's] right front pants pocket." Officer Ludwich also stated that "[i]t was a silhouette of a handgun in a front jeans pocket." Officer Ludwich had recovered a handgun "hundreds" of times during his 23-year career with the Chicago police department. And, in his opinion, the bulge in Respondent's pocket was "different than what a typical wallet or set of keys would look like."

¶ 13 Before conducting a protective pat down of Respondent, Officer Ludwich tapped Respondent's right pant pocket to confirm, for officer safety, whether it was a firearm. Officer Ludwich described what he felt as a "hard metallic nonyielding touch." Based on what he felt when he tapped Respondent's right front pants pocket, Officer Ludwich "believed" and "knew" it was a gun in Respondent's pocket. He said, "What's this?" Respondent replied, "It's a gun. I need it for protection."

¶ 14 Officer Ludwich performed a protective pat down and recovered a .22 caliber AMT semiautomatic handgun with six live rounds, five in the magazine and one in the chamber. Officer Ludwich testified that the gun was approximately seven inches long. The weapon was inventoried, and Respondent was arrested.

¶ 15 At the end of the hearing, the trial court granted Respondent's motion to suppress. The trial court found that Respondent was "in a different position from the usual defendant because the police were not suspicious that there was criminal activity as in the case of Terry v. Ohio , [ 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]." Instead, as the trial court noted, Respondent was a possible witness. In granting Respondent's motion to suppress, the trial court stated, in part, as follows:

"On cross-examination, [Officer Ludwich] said [the bulge in Respondent's pocket] appeared to be a handgun. It looked like a handgun. It was the silhouette. And he tapped his pocket. He patted him down. He never asked him, you know, You are a witness, would you like to come to the station?

He never gave him a chance to do that. So this is a pretty close case, but I think [Respondent] was searched illegally."

¶ 16 The State moved for reconsideration. The State argued that the court erred in its application of the law, that a police officer is not required to ask questions before recovering a weapon. The State contended that, based on Officer Ludwich's observations of the bulge in Respondent's pocket, which he believed to be a handgun, Officer Ludwich was justified in conducting the pat-down to determine if it was, in fact, a handgun.

¶ 17 On October 14, 2016, the court began hearing the motion to reconsider. The trial court looked at the gun and stated that the gun was smaller than the court had previously thought. The court said it "would like to see the gun actually in the pants to decide whether or not—that—that would be the best test of whether it can be—if it's immediately apparent to be a gun." The State's motion was entered and continued.

¶ 18 On November 10, 2016, the trial court held a hearing on the State's motion. Defense counsel noted that although Respondent had provided his pants, the police officers could not determine which pants

89 N.E.3d 921

Respondent was wearing on the date of his arrest. After hearing argument from both sides, the trial court granted the motion to reconsider and reversed its previous suppression order.

¶ 19 At trial, the State presented Officer Ludwich as its only witness. He testified consistently with his prior testimony at the hearing on Respondent's motion to suppress.

¶ 20 Officer Ludwich also testified that, when he recovered the firearm from Respondent, he did not present a valid FOID card. When asked whether Respondent told him that he had a valid FOID card, Officer Ludwich testified: "I believe he said he did not." On cross-examination, Officer Ludwich testified that he did not run Respondent's name in the computer to see if he had a FOID card.

¶ 21 The trial court made a finding of delinquency on all three counts. The court later sentenced Respondent to 18 months' probation. Respondent filed a timely notice of appeal.

¶ 22 II.

¶ 23 Respondent raises two issues regarding his encounter with the police officers. He says he was unreasonably seized in violation of the fourth amendment, and that he was unreasonably searched in violation of the fourth amendment. The seizure and search questions are separate matters, of course. People v. Sorenson , 196 Ill. 2d 425, 433, 256 Ill.Dec. 836, 752 N.E.2d 1078 (2001) ("The question of whether the investigatory stop was valid, however, is a separate question from whether the search for weapons was valid."). We consider the seizure question first, because if the initial encounter was an unconstitutional detention, the search incident to that detention was, too. People v. Harris , 2011 IL App (1st) 103382, ¶ 17, 354 Ill.Dec. 336, 957 N.E.2d 930 ; see also Adams v. Williams , 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

¶ 24 A.

¶ 25 We apply a two-part standard of review...

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5 cases
  • People v. Doehring
    • United States
    • United States Appellate Court of Illinois
    • 30 Septiembre 2021
    ...are erroneously imposed, surplus convictions must be vacated. See In re Tyreke H. , 2017 IL App (1st) 170406, ¶ 123, 418 Ill.Dec. 80, 89 N.E.3d 914. A one-act, one-crime claim is reviewable under the second prong of the plain error rule. Coats , 2018 IL 121926, ¶ 10, 423 Ill.Dec. 13, 104 N.......
  • People v. Lawrence
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    ...developing a reasonable suspicion that the passenger is armed. E.g. , In re Tyreke H. , 2017 IL App (1st) 170406, ¶ 92, 418 Ill.Dec. 80, 89 N.E.3d 914 ("[T]he passenger of a stopped car, not himself suspected of engaging in criminal behavior, could be patted down for weapons when officers d......
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    ...the juvenile court's actions for an abuse of discretion. See In re Tyreke H. , 2017 IL App (1st) 170406, ¶¶ 112-114, 418 Ill.Dec. 80, 89 N.E.3d 914 (citing People v. Franceschini , 20 Ill. 2d 126, 169 N.E.2d 244 (1960) ).¶ 24 A.S. cites People v. Kuntz , 239 Ill. App. 3d 587, 180 Ill.Dec. 4......
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    ...have succeeded on its petition to rescind the summary suspension.¶ 50 In In re Tyreke H., 2017 IL App (1st) 170406, 418 Ill.Dec. 80, 89 N.E.3d 914, the State filed a petition for adjudication of wardship, alleging that the minor respondent had possessed a firearm illegally. Id.¶ 5. At a hea......
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