O.S. v. O.S.

• Decision Date: 26 June 2018
• Docket Number: No. 1–17–1765,1–17–1765
• Parties: IN RE O.S., a minor, (The People of the State of Illinois, Petitioner–Appellee, v. O.S., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 171765

112 N.E.3d 621

IN RE O.S., a minor,(The People of the State of Illinois, Petitioner–Appellee,

v.O.S., Respondent–Appellant).

No. 1–17–1765

Appellate Court of Illinois, First District, SECOND DIVISION.

June 26, 2018

Rehearing denied July 27, 2018

James E. Chadd, Patricia Mysza, and Rebecca Cohen, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Clare Wesolik Connolly, Assistant State’s Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Following a bench trial conducted in accordance with the Juvenile Court Act of 1987 ( 705 ILCS 405/1–1 et seq. (West 2016) ), minor respondent O.S.¹ was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time. On appeal, respondent contests his delinquency adjudication, arguing (1) the circuit court erred in denying his pretrial motion to suppress and (2) the State failed to prove him delinquent of the offenses beyond a reasonable doubt. For the reasons explained herein, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 On January 18, 2017, during the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm. The State subsequently filed a petition for adjudication of wardship against respondent in connection with those events. In the filing, the State alleged that respondent was

"delinquent by reason of the following facts:

On or about January 18, 2017, in violation of SECTION 24–1.6(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-named minor knowingly carried on or about his or her person, a firearm, at a time when he was not on his own land, or in his own abode, or a fixed place of business, and the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card (Section (3)(c) ), this being a Class 2 felony as the Minor–Respondent has previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon.

On or about January 18, 2017, in violation of SECTION 24–1.6(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-named minor knowingly carried on or about his or her person a firearm, at a time when he was not on his own land, or in his own abode, or a fixed place of business, and the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24–3, unless the person under 21 is engaged in lawful activities under the Wildlife Code, this being a Class 2 felony as the Minor–Respondent has previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon.

On or about January 18, 2017, in violation of SECTION 24–3.1(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of UNLAWFUL POSSESSION OF FIREARMS, in that the above-named minor, being a person under 18 years of age, knowingly had in his possession a firearm of a size which may be concealed upon the person."

¶ 4 Respondent, in turn, filed a motion to quash his arrest and suppress evidence, arguing that he was unlawfully detained and searched absent a warrant, probable cause, or reasonable suspicion that he was armed or engaged in criminal activity, in contravention of his constitutional rights. The circuit court subsequently presided over a hearing on respondent's motion.

¶ 5 At the hearing, respondent testified that at approximately 9 p.m. on January 18, 2017, he was in the company of his cousin Max and his friend Kevin. The three young men were seated in Kevin's vehicle, which was idling in front of an apartment building located near the intersection of Lotus and Wellington Avenues. Respondent was seated in the front passenger seat, and Max was in the backseat. Respondent explained that they were waiting for a friend who lived at that apartment building to join them. The car was stopped parallel to the curb, approximately five feet from the intersection. Because of the cold temperature, the windows of the car were rolled up, and Kevin kept the car running as they waited. In addition, Kevin activated his vehicle's hazard lights. Respondent denied that anyone was smoking marijuana in the vehicle that evening. He specifically denied that anyone was smoking marijuana as the car was idling in front of the apartment building.

¶ 6 Respondent estimated that Kevin's car had been idling in front of the apartment building for approximately three minutes when a grey "detective car" pulled up alongside of them. The law enforcement vehicle then maneuvered "diagonally in front of" Kevin's car and activated its emergency lights. Three police officers then exited the vehicle and approached and surrounded Kevin's car. Respondent explained that one of the officers stood in front of Kevin's car, the second approached the driver's side door, and the third approached the front passenger-side door. Kevin provided his license and registration in response to an officer's request. The officer standing on the passenger side of the vehicle then used his illuminated flashlight to tap the window and request that respondent lower the window. Respondent complied with the officer's request. After this brief interaction, the officers subsequently opened the doors of Kevin's vehicle and ordered the young men out of the car. As soon as respondent exited the vehicle, one of the officers conducted a pat down of his person. During the course of the pat down, the officer recovered a handgun from the right pocket of respondent's jacket. Respondent confirmed that he had been concealing the gun in his jacket pocket.

¶ 7 Respondent testified that he did not feel free to leave at any time during the encounter with the police officers. He explained that the officers essentially "jumped out of nowhere" and surrounded and "trapped" them.

¶ 8 On cross-examination, respondent admitted that he was unable to recall the name of the friend who he, Max, and Kevin were waiting for that evening. He was also unable to recall whether his cousin Max had a "blunt" tucked behind his ear. Respondent, however, denied that there were remnants of burnt cannabis in the backseat of Kevin's vehicle. Respondent was also unable to recall whether Kevin's vehicle had been stopped in a no parking zone. Upon being shown a photograph of the intersection of Lotus and Wellington, respondent acknowledged that there was a no parking sign located where Kevin's vehicle had been stopped on the evening of January 18, 2017. Respondent, however, did not recall observing the sign that evening. He did recall observing a stop sign at the intersection of Lotus and Wellington and estimated that Kevin's vehicle was stopped approximately "five feet away" from that intersection. Finally, respondent was unable to recall whether his cousin was also arrested that evening after the police officers recovered marijuana and cocaine from his person.

¶ 9 Following respondent's testimony, his attorney rested. Chicago police officer Jason Cloherty was called upon to testify on behalf of the State. Officer Cloherty testified that on the evening of January 18, 2017, he was a member of a three-person tactical team. Officer Rodriguez and Officer Ramos were the other members of the team. At approximately 9 p.m., the three officers were patrolling the 5400 block of West Wellington in an unmarked vehicle. He explained that they were patrolling that area because there had been reports of shots fired in that general vicinity during the previous three or four nights. Officer Cloherty testified that he was seated in the backseat of the vehicle and had his window "cracked." As the officers were traveling westbound on Wellington, Officer Cloherty "smelled the odor of cannabis." Officer Cloherty explained that cannabis has a distinctive smell and that he was familiar with that smell as a result of his frequent exposure to the drug during his years as a police officer. Upon smelling the distinctive odor, he looked to his immediate right and observed a Lexus sport utility vehicle (SUV) stopped in a no parking zone. Officer Cloherty knew the vehicle was in a no parking zone because there was a street sign that designated the area as such.

¶ 10 After observing the Lexus parked in a no parking zone and smelling the odor of cannabis, Officer Cloherty alerted Officer Rodriguez, who was driving the unmarked car, and directed him to "put a stop [t]here." Officer Rodriguez stopped the vehicle, and the officers then approached the Lexus. Officer Cloherty testified that he approached the front passenger side of the vehicle, while Officer Rodriguez approached the driver's side of the vehicle. Officer Rodriguez then began speaking to the driver through the lowered driver's side window, and it became apparent that the odor of cannabis was emanating from inside the Lexus. Officer Cloherty then requested respondent to lower the front passenger side window, and respondent complied. After respondent rolled down the window, Officer Cloherty used his flashlight to illuminate the interior of the Lexus. He observed another young man situated in the backseat of the vehicle. That young man "had a hand-rolled cigar with cannabis [tucked behind] his ear." After smelling marijuana and observing the blunt tucked behind the rear passenger's ear, Officer Cloherty and his partners ordered all of the passengers out of the vehicle. Officer Cloherty testified that he opened the front passenger side door so that respondent could exit the vehicle. When he opened respondent's door, he observed respondent...