People v. Wallace

• Docket Number: 1-20-0917
• Decision Date: 29 September 2023
• Citation: 235 N.E.3d 104
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Deshawn WALLACE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

235 N.E.3d 104

2023 IL App (1st) 200917

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

v.Deshawn WALLACE, Defendant-Appellant.

No. 1-20-0917

Appellate Court of Illinois, First District, First Division.

Filed September 29, 2023

Appeal from the Circuit Court of Cook County.No. 19 CR 7197, The Honorable Ursula Walowski, Judge Presiding.

James E. Chadd, Douglas R. Hoff, and Stephanie T. Puente, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Douglas P. Harvath, Stacia Weber, and John E. Nowak, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE LAVINdelivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendantDeshawn Wallace was found guilty of being an armed habitual criminal, in that he possessed a firearm with two prior qualifying felonies, and he was sentenced to six years in prison.Defendant appeals, contending that the trial court erred in denying his motion to suppress because police lacked reasonable suspicion to frisk and then search defendant for weapons.Defendant also contends the State failed to establish the statutory elements of the armed habitual criminal statute beyond a reasonable doubt, therefore requiring reversal of his conviction.We affirm.

¶ 2 BACKGROUND

¶ 3Defendant was arrested after police stopped the vehicle in which he was a passenger and ultimately found him in possession of a handgun for which he did not have a firearm owners identification (FOID) card pursuant to the Firearm Owners Identification Card Act(430 ILCS 65/0.01 et seq.(West 2018)) or a concealed carry license pursuant to the Firearm Concealed Carry Act(430 ILCS 66/1 et seq.(West 2018)), as required.SeePeople v. McMichaels, 2019 IL App (1st) 163053, ¶ 28, 445 Ill.Dec. 325, 166 N.E.3d 755.Defendant was charged with one count of being an armed habitual criminal, along with other offenses.

¶ 4 Prior to trial, defendant filed a motion to suppress the inventoried weapon alleging police lacked probable cause to conduct a search.Defendant called Chicago police officer Edward Zeman, whose direct testimony and cross-examination revealed that he and his partner, a fellow Chicago police officer, were on patrol May 2, 2019, due to a conflict between two street gangs that had resulted in several shootings.Around 11 p.m., they stopped a car that had no rear brake light.Officer Zeman, dressed in plain clothes, approached the front passenger side, where defendant was seated, while his partner approached the driver’s side.As Officer Zeman approached, he smelled alcohol and fresh cannabis emanating from the vehicle’s interior, which contained three people, including defendant.Officer Zeman noted that it smelled like alcohol and asked if they had been drinking, to which the rear passenger responded, yes.Officer Zeman stated, "it smells like Remy"(a type of alcohol), and the rear passenger said yes and laughed.He then observed a bag of fresh cannabis inside between the front passenger seat and center console, just next to defendant’s leg.Officer Zeman noted that it was illegal to have open alcohol inside the car, and the narcotics and alcohol gave him a basis to search the vehicle.

¶ 5 During the encounter, defendant would not make direct eye contact with Officer Zeman, his breathing was heavy, as his chest was moving up and down, and he"took a big swallow," all of which Officer Zeman found to be unusual.While defendant’s right hand was in his right lap area, his left hand was moving by his left waist, near the center console toward the cannabis.Officer Zeman then observed a "large bulge" in defendant’s front jacket pocket.That is, he could see both the bulge and cannabis from his vantage point outside the vehicle.

¶ 6 Officer Zeman requested that defendant step out of the vehicle, but defendant did not comply and appeared hesitant to exit the car.Defendant then asked why and offered that he could simply give Officer Zeman his identification instead.Officer Zeman testified again that defendant’s behavior was abnormal.He feared defendant might have a weapon, so he reached into the ear and performed a protective pat down over the bulged area of defendant’s jacket while defendant was still seated.Officer Zeman felt "a hard metal object consistent with a handgun" and then recovered what was later revealed to be a loaded Bursa Thunder semiautomatic handgun from defendant’s jacket pocket as Officer Zeman called over his partner.His partner handcuffed defendant, and Officer Zeman searched the vehicle.Defendant admitted that he did not have a FOID card or concealed carry license.At the suppression hearing, defendant did not establish when he made this admission.

¶ 7 The vehicle’s driver was not arrested, although Officer Zeman believed she received a ticket from his fellow officer.It was later revealed that the stop occurred at 3758 W. Chicago Avenue, and police did indeed recover and inventory the cannabis but not any alcohol.¹When Officer Zeman first approached the vehicle, the back window was down but not the window by defendant.Defendant also did not bend down under his seat or make any "furtive movements."Following this evidence, the defense rested.

¶ 8The State moved to admit Officer Zeman’s body worn camera (body cam), capturing the traffic stop, and it was entered into evidence following a stipulation and played before the court.Consistent with Officer Zeman’s testimony, the video shows him approaching the passenger side of the vehicle and affirms his interchange with the back right passenger, whose window was almost halfway down.Officer Zeman queried, "You all just drinking?" to which the back right passenger answered yes, while looking at Officer Zeman.When Officer Zeman further stated, "It smells like Remy, right" that same passenger laughed, looked away, and said, "Yeah, exactly."The video also depicts Officer Zeman shining his flashlight and looking into both the rear passenger seat and the front passenger seat.During this time, defendant gave a sideways glance to Officer Zeman and then looked to his left and then straightforward.

¶ 9 The video further shows that as the driver exited the vehicle under the other officer’s direction, Officer Zeman opened the front passenger door.Defendant continued to stare straightforward and only made eye contact after Officer Zeman asked him to "hop out for me."Defendant hesitated.Instead of complying with the request, he looked down and then straight-forward while moving his left hand from the top of the center console down to the area, apparently between his seat and the console, and he looked down toward that area a second time.Defendant also took a visible gulp before turning to Officer Zeman and asking, "for what, you want my ID?"Officer Zeman said no, that he asked defendant to step out because there was open alcohol in the car, although he did not "care about the little bit of weed or whatever that you got there, right."Defendant looked down as Officer Zeman moved closer to defendant and performed the protective pat down over defendant’s right jacket pocket (which showed a slight bulge), unzipping the pocket, and recovering the handgun.Defendant remained seated with his seatbelt on the entire time.Officer Zeman took the handgun and apparently unloaded it while his partner handcuffed defendant, leading him to the police vehicle.

¶ 10Defendant argued in closing that the police lacked probable cause to support the vehicle stop and search of defendant.The defense noted that Officer Zeman found the cannabis was of no concern, and defendant had the right to question why he was being asked to exit the vehicle.The defense argued, "[i]t was purely a stop to search anybody," and there was no indication the officer was in danger.The State countered that officers conducted a valid traffic stop for a broken brake light, then smelled cannabis and alcohol emanating from the car, observed defendant’s unusual behavior, as well as the bulge in his right pocket, all of which supported the pat down and search.

¶ 11The trial court denied defendant’s motion to suppress.The court found Officer Zeman testified credibly and consistently with the body cam video.The court found the traffic stop was justified by the brake light violation and further found police had reasonable suspicion to perform a protective pat down of defendant while inside the vehicle given the visible bulge and defendant’s actions.The court explained, "what I find is a significant point i[s] that when [Officer Zeman] reached in[,]he went directly to that jacket pocket and patted it down[,] and he explained the reason for that is because he saw the bulge there that corroborates the officer."Defendant filed a motion to reconsider, which was denied.

¶ 12 At trial, the parties stipulated that if called, Officer Zeman would testify as at the previous suppression hearing.They also stipulated to the body cam video and records revealing that defendant did not possess a FOID card or a concealed carry license.Finally, the State entered certified copies of conviction showing defendant previously had been convicted of armed robbery (No. 08-CR-12591) and unlawful use of a weapon by a felon (No. 15-CR-5613), and the defense stipulated that these were defendant’s convictions.The State rested, and the defense called Officer Zeman, who added a few details about the traffic stop.The defense then rested.

¶ 13 At the trial’s conclusion, the court found defendant guilty of being an armed habitual criminal (count I), and the other counts were merged into count I.²Defendant moved for a new trial, arguing the court erred in denying the motion to suppress, but this was denied.The court sentenced defendant to six years in prison for being an armed habitual criminal.This appeal followed.

¶ 14 ANALYSIS

[1–3]¶ 15Defendant first challenges the denial of his suppression...