Opinion
No. 1-11-1566
03-13-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. QUINTIN COLLINS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 1317
Honorable
John T. Doody,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Neville and Justice Sterba concurred in the judgment.
ORDER
¶ 1 Held: Trial court did not err in denying defendant's motion to quash arrest and suppress evidence. Judgment affirmed. ¶ 2 Following a bench trial, defendant Quintin Collins was found guilty of possession of a controlled substance and sentenced to 36 months' probation. On appeal, he maintains that the trial court erred in denying his motion to quash arrest and suppress evidence, and requests this court to reverse his conviction. ¶ 3 Defendant was charged with one count of possession of a controlled substance with intent to deliver following his street arrest on December 14, 2009. Before trial, defendant filed a motion to quash his arrest and suppress evidence alleging that he was arrested without a warrant or probable cause and that the evidence seized as a result should be suppressed. ¶ 4 At the suppression hearing, Chicago police officer Mayer testified that during the evening hours of December 14, 2009, he and his two partners were in uniform in a marked squad car conducting "[a]ggressive patrol" in the high narcotics area of 1700 North Moody Avenue. There had been reports of narcotics sales in the area, as well as a number of shootings and gang activity. ¶ 5 At 9:40 that evening, the three officers were driving slowly in their vehicle when they observed defendant in a vehicle with another person, later identified as Terrance Hogan. As the officers approached in their vehicle, defendant and Hogan looked in their direction, exited their vehicle "very fast," and "walked at a very fast pace towards the residence" at 1717 North Moody Avenue. The officers parked their vehicle right behind the one defendant and Hogan had left, then stepped out without drawing their guns. ¶ 6 Officer Mayer testified that when defendant "was on the top porch stair" of the Moody residence, about 20 feet away from him, and Hogan was on the first step, he said to them, "Hey guys, come here for a second." His purpose in doing so was to conduct a field interview as to whether they lived in the area, what they were doing on this block, and if they knew anything about drug sales in the area. In response, defendant turned around, put his left hand behind his back and began "fumbling around." Officer Mayer, afraid that defendant was trying to retrieve a gun behind his back, drew his gun, and told defendant to show his hands. At that point, defendant dropped a large, plastic bag containing a white rock-like substance of suspect cocaine. Officer Mayer recovered the substance which was the size of a baseball. ¶ 7 No further witnesses were called, and after argument was presented by counsel, the court denied the motion to quash arrest and suppress evidence. In doing so, the court noted that when police saw defendant and Hogan immediately exit a vehicle in a high narcotics area, almost running towards the house, the officers had the right to approach for a field interview. When the officer asked defendant to "come here," defendant put his hand behind his back, prompting the officer to pull out his weapon for protection, which the court found was not unreasonable. In this process, defendant dropped a packet of suspect cocaine which provided probable cause for his arrest. ¶ 8 Defendant filed a motion to reconsider the denial of his motion to quash arrest and suppress evidence. He maintained that the facts testified to at the hearing did not provide the officers a reasonable suspicion that he was engaged in criminal activity. He further maintained, in the alternative, that even if there was a reasonable suspicion to stop him, he dropped the bag to the ground after he was seized without probable cause. He acknowledged that no physical force had been employed, but claims there was a show of authority by the officer yelling out to him. Then, when he reached behind his back, the police officers drew their weapons, and at this point, a seizure had taken place, and the bag fell to the ground. Defendant thus maintained that the bag of cocaine was the fruit of an illegal seizure and must be excluded. ¶ 9 The court, however, stood on its initial ruling, and denied the motion to reconsider. In doing so, the court found that police had a right to call to defendant and stop him for a field interview, and noted that the officer did not draw his weapon until defendant placed his left hand behind his back while on the top step of the porch. The officer was afraid that defendant might have a gun, but a bag of cocaine was dropped to the ground which was recovered and is the subject of this case. ¶ 10 Defendant subsequently engaged new counsel who filed another motion to reconsider. The court noted that the motion was, as was the initial motion to reconsider, based on an illegal seizure, which had already been litigated, and stood on its prior ruling. ¶ 11 At trial, Chicago police officer Mayer testified consistently with the testimony he gave at the suppression hearing. He further testified that in the evening hours of December 14, 2009, he and his fellow officers were driving slowly down the block of 1700 North Moody Avenue when they observed defendant and Hogan sitting in a parked car, look in their direction, then quickly exit the car. The officers stopped behind that car, and Officer Mayer exited the squad car and moved quickly because defendant and Hogan were "walking at such a fast pace." When Hogan was at the bottom of the steps leading up to the porch with just one foot on the first step and defendant was on the steps leading up to the porch of the residence at 1717 North Moody Avenue, Officer Mayer said, "Hey, guys, come here for a second." Defendant turned around, and immediately placed his left hand behind his back. Officer Mayer then drew his weapon for his safety, asked to see his hands, and defendant tossed a clear bag of suspect cocaine to the ground. One of the other officers detained defendant, and Officer Mayer recovered the narcotics. ¶ 12 Chicago police officer Tom Kocanda testified that he also got out of the squad car with Officer Mayer, and stood to the north of the porch in case defendant decided to jump off and run. Officer Mayer gave him the recovered narcotics, which he kept in his care and custody until he inventoried it. ¶ 13 The parties stipulated that the recovered narcotics tested positive for cocaine, and weighed 62.5 grams. The parties further stipulated that a proper chain of custody of the cocaine was maintained at all times. ¶ 14 Defendant testified that on December 14, 2009, he was with his cousin, Hogan, who lived at 1717 North Moody Avenue. He and Hogan went to Austin Boulevard and Madison Street where Hogan exited the vehicle and met with another individual. Defendant was not sure if a drug sale took place. Hogan then reentered the car, and they drove to his house. ¶ 15 Defendant denied looking over his shoulder at police while in the car, and denied walking quickly away from the car. He testified that he was trailing behind Hogan when they exited the car because he had to wait for Hogan to open the door of the house. When Hogan was at the door, and defendant was down by the "first stoop," a squad car drove by, an officer hopped out, drew his gun, and said, put your hands up and come here. Defendant placed his arms in the air, and Officer Mayer then asked him if he knew about drugs in the area. He replied, "no," and the officer immediately searched him. ¶ 16 Defendant further testified that he did not have anything behind his back, and did not drop anything to the ground, but that the officer recovered marijuana from Hogan. The officer then went up to the porch and came back down with a bag, and asked if it belonged to defendant. Defendant told him, "it's not mine." When the officer asked him if he was telling him that it belonged to Hogan, defendant replied, "I don't know if it's his. I guess it's his." Defendant further testified that he "guess[ed]" that Hogan had tossed the bag because he was on the porch. ¶ 17 At the close of evidence, the court found the officers' testimony credible, but did not believe there was sufficient indicia of intent to deliver. As a result, the court found defendant guilty of possession of a controlled substance. ¶ 18 Defendant filed a motion for a new trial, alleging, in relevant part, that the court erred in denying his motion to quash arrest and suppress evidence. He maintained that there was no probable cause or reasonable suspicion to stop him, and that a reasonable person would not have believed that he was free to leave. He further alleged that he was seized while on the top step of the porch of the house, and that the dropped cocaine was the fruit of an unreasonable seizure and should have been suppressed. The court denied the motion. ¶ 19 On appeal, defendant maintains that the trial court erred in denying his motion to quash arrest and suppress evidence. He maintains that police did not have reasonable suspicion of any criminal activity to stop him, and that the cocaine recovered therefrom was the fruit of illegal police action and should have been suppressed. ¶ 20 In reviewing a trial court's ruling on a motion to suppress, we accord great deference to the trial court's factual findings and credibility determinations, and we will reverse those findings only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). But, we review de novo the trial court's ultimate legal ruling denying defendant's motion to suppress. Sorenson, 196 Ill. 2d at 431. In doing so, we may consider the entire record, including the trial testimony. People v. Robinson, 391 Ill. App. 3d 822, 830 (2009). ¶ 21 Defendant claims that police had no particularized, articulable reason for stopping him where he merely looked in their direction and walked quickly towards the house, and that Officer Mayer's "hunch" was insufficient to provide a reasonable suspicion necessary for a Terry stop. The State responds that the initial encounter was a consensual encounter, and that defendant's subsequent attempt to hide something behind his back provided the officers with a reasonable, articulable suspicion that defendant was in possession of a weapon or contraband. Defendant replies that consensual encounters can only occur on the public way, and here, he was on the porch of a private residence. In addition, he maintains that the "hey guys" solicitation from officers admittedly on "aggressive patrol" amounted to a seizure. ¶ 22 The fourth amendment of the United States Constitution guarantees the right of the people against unreasonable searches and seizures. U.S. Const., amend. IV. But, not all encounters between police and a private citizen result in seizures (People v. Luedemann, 222 Ill. 2d 530, 544 (2006)), and a seizure does not occur simply where police approach and question a citizen on the street or in other public places (United States v. Drayton, 536 U.S. 194, 200-01 (2002)). These "consensual encounters" do not implicate fourth amendment interests (Luedemann, 222 Ill. 2d at 544), and thus no reasonable suspicion is required (People v. Harris, 228 Ill. 2d 222, 247 (2008)). ¶ 23 Defendant claims that when Officer Mayer approached him and commanded him to come over to him, he was on the front porch of the Moody residence, and Officer Mayer had no reasonable articulable suspicion to stop him based merely on his walking at a fast pace to the house. He further maintains that the porch he was on was private property, and thus, the intrusion that took place there could not be considered a street encounter which does not implicate fourth amendment interests. ¶ 24 A person visible to the public outside a home does not have a reasonable expectation of privacy. United States v. Santana, 427 U.S. 38, 42 (1976). The threshold of the front door of a residence as well as the porch is considered a public place for purposes of a warrantless arrest. People v. Redman, 386 Ill. App. 3d 409, 423 (2008) (and cited cases). Accordingly, a person visible to the public outside on the front porch does not have a reasonable expectation of privacy, and an encounter there with police is considered to be in a public place for purposes of the fourth amendment. ¶ 25 The evidence found credible by the court shows that Hogan was on the bottom of the stairs and defendant was on the top stair leading to the unenclosed porch when Officer Mayer said to them, "Hey guys, come here for a second." At this point, the officers did not violate the fourth amendment by merely approaching defendant in a public place, and asking him some questions if he was willing to listen. Holland, 356 Ill. App. 3d at 155. ¶ 26 In reaching this conclusion, we have examined People v. McIntyre, 218 Ill. App. 3d 479 (1991) and People v. Wiley, 169 Ill. App. 3d 140 (1988), relied on by defendant to support his contrary claim that the porch was not a public place, and find that reliance misplaced. In McIntrye, the reviewing court found that for purposes of residential burglary, an enclosed porch used for sitting, eating, and cooking was a part of the house. McIntrye, 218 Ill. App. 3d at 482. Here, there was an open porch visible to the public, not an enclosed porch. In Wiley, the reviewing court sustained defendant's conviction for residential burglary, finding that an enclosed porch connected to the kitchen by a door and window and to the garage was part of the dwelling. Wiley, 169 Ill. App. 3d at 141, 143-44. The issue here, unlike Wiley, a residential burglary case, is whether the initial encounter on an open porch visible to the public implicated fourth amendment interests. We observe that defendant had not entered the residence in any manner, and was rather, approaching it on the stairs, open and visible to the public, when the initial encounter occurred. Accordingly, the porch was a public place. ¶ 27 That said, defendant further maintains that because the three police officers were on "aggressive patrol," and likely used a commanding tone of voice with defendant to stop him and make him come to them, the questioning amounted to a seizure. This court has held that asking defendant to "[c]ome here for a minute," is not a restraint or an arrest. People v. Berry, 54 Ill. App. 3d 647, 649-50 (1977); cf. People v. Jackson, 389 Ill. App. 3d 283, 284, 288-89 (2009) (seizure found where police officer approached defendant and told him three or four times to "remove his hands from his jacket pockets"); People v. Ocampo, 377 Ill. App. 3d 150, 160-61 (2007) (seizure found where officer told defendant he "needed to talk to him"). We thus find that Officer Mayer's statement did not amount to a seizure. Berry, 54 Ill. App. 3d at 649-50. ¶ 28 This outcome is also not negated by the presence of three officers, who were several feet away from defendant. A presence of this sort alone is insufficient to be characterized as threatening. See People v. Robinson, 391 Ill. App. 3d 822, 831 (2009). In addition, that the officers were in uniform shows an air of formality, which does not necessarily lead to viewing the situation as more coercive than if police were in plain clothes (Ocampo, 377 Ill. App. 3d at 159), especially where the officers did not touch defendant or display their weapons until he reached behind his back (U.S. v. Mendenhall, 446 U.S. 544, 554 (1980)). Defendant attempts to elevate a police officer's verbal solicitation to engage in a field interview to the status of a stop or seizure requiring reasonable suspicion or probable cause. Under the circumstances revealed in this record, we conclude that the officer's verbal solicitation to defendant did not implicate fourth amendment interests. Luedemann, 222 Ill. 2d at 544. ¶ 29 Furthermore, once defendant reached behind his back in an area known for gang activity and shootings there was reasonable suspicion that he was in possession of a gun (Holland, 356 Ill. App. 3d at 155-56) which prompted the officer to reach for his gun for protection. The officer then told defendant to put his hands up, and he dropped the suspect cocaine, providing probable cause to arrest him. People v. Tribett, 98 Ill. App. 3d 663, 673 (1981). We, therefore, find no error in the denial of defendant's motion to quash arrest and suppress evidence. ¶ 30 In light of the foregoing, we affirm the judgment of the circuit court of Cook County. ¶ 31 Affirmed.