Opinion
No. 1-12-0231
12-18-2013
IN THE INTEREST OF GABRIEL Z., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Gabriel Z., Respondent-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.
11 JD 3426
Honorable
Terrence V. Sharkey,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Neville and Mason concurred in the judgment.
ORDER
¶ 1 Held: The trial court erred in denying the respondent's motion to quash his arrest and suppress evidence where the police officer's search was illegal; respondent's adjudication of delinquency for aggravated unlawful use of a weapon was, therefore, reversed. ¶ 2 After a stipulated bench trial, the respondent, Gabriel Z., was adjudicated a delinquent for three counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (a)(3(C), (a)(3)(I) (West 2010)). He was ordered to serve 30 days in a juvenile detention center and 30 months' probation. On appeal, the respondent argues that: (1) the trial court erred in denying his motion to quash his arrest and suppress evidence; (2) the AUUW statute under which he was adjudicated is facially unconstitutional in that it violates the second amendment (U.S. Const., amend. II) and the equal protection clause of the fourteenth amendment (U.S. Const., amend. XIV); and alternatively, (3) that two of his AUUW offenses should be vacated under the one-act, one-crime principle. For the reasons that follow, we reverse. ¶ 3 On August 9, 2011, the State filed a petition for adjudication of wardship, claiming that the respondent was delinquent when he violated sections 24-1.6(a)(1),(a)(3)(A), (3)(C) and 3(I) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (a)(3)(C), (a)(3)(I) (West 2010)), after he was arrested for possessing a loaded .45 caliber Ruger while on a public street, without a Firearm Owner's Identification (FOID) Card, and while under the age of 21. ¶ 4 On September 1, 2011, the respondent moved to quash his arrest and suppress evidence, alleging that the police did not have a reasonable suspicion that he was involved or about to be involved in criminal activity when he was searched. ¶ 5 On October 13, 2011, an evidentiary hearing was held on the motion. The respondent testified that, on August 8, 2011, he was in the area of 50th and Talman in the City of Chicago with a group of friends, walking to a friend's home. According to the respondent, at around 9 p.m., a police officer exited his patrol car and grabbed him. He stated that the police officer allowed his friends to leave and then patted him down. A pistol was retrieved from his person and he was arrested. ¶ 6 Chicago Police Officer Dennis Pociask testified that, on August 8, 2011, he was working with an ongoing "Gang Suppression Mission." At around 9 p.m., he observed the respondent loitering on the street corner with other individuals at 2630 West 51st Street. Officer Pociask testified that the area was in the midst of a gang war between the Latin Kings and Satan Disciples and had recently experienced several shootings. As part of the Gang Suppression Mission, officers were approaching known gang members to engage them in conversation and get any information that they could. As part of the mission, officers filled out contact cards with any information they acquired through their conversations with various gang members. Officer Pociask testified that he knew the respondent was a Latin King gang-member based on three or four prior contacts with him and from his visible tattoos. He asked the respondent to stop and speak with him, and the respondent agreed and stopped. Officer Pociask then performed a protective pat-down to ensure his safety. He stated that he feared for his safety because of the respondent's gang membership. He felt a handgun in the respondent's waistband and recovered it. ¶ 7 On cross-examination, Officer Pociask admitted that he did not suspect that the respondent was about to commit a crime. He also did not see the respondent make any sudden movements or other movements that made him fear for his safety. Rather, he stopped and frisked the respondent solely based on his observation of the respondent loitering and his gang membership status. ¶ 8 The trial court determined that Officer Pociask had a reasonable, articulable suspicion to stop the respondent based on his location in a high-crime area with an on-going gang war and his known gang-member status. The trial court also determined that the protective pat-down was reasonable given the respondent's known gang-member status. The court, therefore, denied the respondent's motion to quash his arrest and suppress evidence. ¶ 9 The matter then proceeded to a stipulated bench trial in which the parties agreed to incorporate the testimony adduced at the evidentiary hearing. Additionally, the parties stipulated that Officer Pociask would testify that, at the time of the respondent's arrest: the handgun was loaded; he was not on his own land; he did not have a FOID card; and he was under the age of 21 and was not engaged in any lawful activities under the Wildlife Code. ¶ 10 The trial court found respondent guilty of all three counts of AUUW and stated that two of the counts would merge into one. On December 7, 2011, the court ordered the respondent to serve 30 days in a juvenile detention center and 30 months' probation. This appeal followed. ¶ 11 The respondent first argues that the trial court erred in denying his motion to quash his arrest and suppress evidence. "In reviewing a trial court's ruling on a motion to suppress evidence, we apply the two-part standard of review adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 (1996)." People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Under this standard, a trial court's findings of historical fact are reviewed only for clear error, and we give great deference to the trial court's factual findings. Id. We will reverse those findings only if they are against the manifest weight of the evidence. Id. However, we review de novo the trial court's ultimate legal ruling as to whether suppression is warranted. Id. Here, the parties do not dispute the historical facts but only the trial court's legal ruling, which we review de novo. ¶ 12 "Courts have divided police-citizen encounters into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, or 'Terry stops,' which must be supported by a reasonable, articulable suspicion of criminal activity; and (3) encounters that involve no coercion or detention and thus do not implicate fourth amendment interests," also known as consensual encounters. Luedemann, 222 Ill. 2d at 544. In a motion to suppress evidence, the initial burden is on the defendant to establish that the search or seizure was unreasonable or unlawful. People v. Ertl, 292 Ill. App. 3d 863, 868 (1997). Once the defendant establishes a prima facie case that the police acted without a warrant and that he was doing nothing unusual to justify the stop, the burden shifts to the prosecution to establish the stop was reasonable or lawful. Id. ¶ 13 Regarding Officer Pociask's initial contact with the respondent, we find that contact constituted a consensual encounter in which he asked the respondent to speak with him and the respondent agreed. We find that the consensual encounter became a Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)) once the officer decided to pat-down respondent because the respondent did not agree to the pat-down, only to stop and answer questions. Officer Pociask testified he did not suspect that the respondent was about to commit a crime. Walking to a friend's home by itself is not criminal conduct. ¶ 14 "Under Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime." People v. Close, 238 Ill. 2d 497, 505 (2010) (citing Terry, 392 U.S. at 22). The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Id. "The officer's suspicion must amount to more than an inarticulate hunch [ ], but need not rise to the level of suspicion required for probable cause." Id. When judging the police officer's conduct, we apply an objective standard and determine whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Id. ¶ 15 To justify the search for weapons, Officer Pocsiak testified that he feared for his safety because the Latin Kings and the Satan Disciples were engaged in a war in the area, and respondent was a member of the Latin Kings. We find that People v. Harris, 2011 IL App (1st) 103382, established useful standards for deciding whether the prosecution has shown cause for a search for weapons. ¶ 16 In Harris, a police officer stopped Harris on the street and searched him for weapons. The officer found a gun. Harris moved to suppress the gun, arguing that police violated his constitutional rights when they searched him. At the hearing on the motion to suppress, the police officer described the location of the encounter as an area of "high burglaries and high robberies." Harris, 2011 IL App (1st) 103382, ¶ 13. The trial court suppressed the gun as the product of an illegal search. The appellate court held:
"A conclusory and unsubstantiated statement that a location is a "high crime area" is insufficient to establish that consideration for purposes of justifying a Terry stop. *** [T]o establish that a location is a high crime area, [courts] have considered a number of factors relevant to that inquiry, including *** '(1) the nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case ***; (2) limited geographic boundaries¶ 17 Here, the State presented no evidence tying respondent's conduct at the time of the stop to the war, no evidence limiting the geographic boundaries of the war zone, and no evidence specifying the times of any crimes committed during the war. Officer Pocsiak's conclusory and unsubstantiated statement that two gangs were at war in the area cannot justify searching respondent for weapons. Harris, 2011 IL App (1st) 103382, ¶ 14. ¶ 18 The officer's knowledge of defendant's gang membership does not create a reasonable suspicion that justifies the officer's search for weapons. U.S. v. Davis, 94 F.3d 1465, 1469 (9th Cir. 1996). And the officer's statement that he feared for his safety, without other supporting evidence, does not constitute the kind of specific and articulable fact that is necessary to justify a search for weapons. People v. Galvin, 127 Ill. 2d 153, 169 (1989). Therefore, since a lawful Terry stop must be based on a reasonable, articulable suspicion of criminal activity and since Officer Pociask testified that he did not suspect the respondent was about to commit a crime, we find the Terry stop and search were unreasonable. Accordingly, we hold that the officer violated the defendant's fourth amendment rights. ¶ 19 In People v. F.J., 315 Ill. App. 3d 1053, 1055 (2000), the appellate court reversed the trial court, determining the police officer's search and seizure was unlawful. The officer testified that he was patrolling a high-crime area where a "gang disturbance" had been reported a few minutes earlier. Id. The officer saw the respondent standing at the entrance of an alley and decided to conduct a field interview. Id. The officer testified that he saw the respondent glance at him and put an object in his pocket. Id. Because he did not know whether the object was a weapon, the officer performed a pat-down search without the respondent's consent and found a handgun. Id. ¶ 20 In its analysis, the appellate court noted that the respondent was stopped at 10 p.m., stating that "even in a high crime area," there was nothing unusual about a person walking around at that time. Id. at 1057. The court also noted that the officer did not provide any information regarding the gang disturbance and its location to the respondent or whether weapons had been involved. Id. The court further observed that the officer did not testify that the object he saw the respondent place in his pocket appeared to be anything suspicious. Id. at 1058. Accordingly, the court concluded that the officer did not have a reasonable, articulable suspicion to justify the stop and search of the respondent. Id. at 1059-60; see also, In re Mario T., 376 Ill. App. 3d 468, 482 (2007) (finding the Terry stop and search was unreasonable where officer stated she stopped the respondent loitering in hallway of a high-crime building where she was investigating an attempted burglary). ¶ 21 In In re S.V., 326 Ill. App. 3d 678, 680 (2001), the appellate court concluded that the police officer was legally justified to stop and search the respondent. In S.V., the police officer testified that he received radio calls about a gang fight with shots fired at Cermak Road and Western Avenue in Chicago, an area he knew to be Satan Disciple territory. Id. About two blocks from that scene, the officer saw the respondent walking in the street with two other individuals, flashing Satan Disciple gang signs at passing vehicles and passing citizens. Id. at 681. The officer approached the respondent to ask him about the recent shooting when he performed a protective pat-down and found a gun. Id. The appellate court determined that the facts justified both the officer's stop and the frisk because he pointed to specific and articulable facts that reasonably warranted the intrusion. Id. at 685, 687. Specifically, the court found persuasive that the officer was investigating a recent gang shooting and observed the respondent walking and flashing gang symbols in the vicinity of the crime. Id. at 685 (brief investigatory stop was reasonable), 687 (protective pat-down was reasonable). ¶ 22 The facts of this case are similar to the facts of F.J. and distinguishable from the facts of S.V. Here, Officer Pociask was not investigating any particular crime, such as a recent gang shooting, and he did not see the respondent place anything in his pocket. Further, the respondent, by all accounts, was not doing anything, such as flashing gang signs, while walking down the street. As the court in F.J. observed, there is nothing unusual about the respondent walking down the street at 9 p.m., even in an area of high crime. Least indicative of a reasonable Terry stop is Officer Pociask's testimony that he did not suspect that the respondent was about to commit a crime, that he was not investigating a particular crime but merely seeking to obtain information from gang members, and that he did not see the respondent make any sudden movements or act in a suspicious manner. The mere fact that Officer Pociask knew the respondent to be a gang member is insufficient to warrant an intrusive search and seizure. We, therefore, conclude that the trial court erred in denying the respondent's motion to quash his arrest and suppress evidence as Officer Pociask's Terry stop and pat-down of the respondent was not legally justified. ¶ 23 In so holding, we reject the State's argument that Officer Pociask was justified under the circumstances because he was enforcing section 8-4-015 of the Chicago Municipal Code, which bars gang members from loitering. Section 8-4-015 of the Chicago Municipal Code provides that when an officer observes a gang member engaged in gang loitering, the officer shall: "inform all such persons that they are engaged in gang loitering within an area in which loitering" by gang members is prohibited; "order all such persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued;" and "inform those persons that they will be subject to arrest if they fail to obey the order promptly or engage in further gang loitering within sight or hearing of the place at which the order was issued during the next eight hours." We fail to see how Officer Pociask's conduct sought to enforce this provision of the Chicago Municipal Code where he neither informed the respondent that he was engaged in "gang loitering" in a prohibited area nor ordered him or his friends to disperse. Officer Pociask also did not testify that the respondent was with other gang members at the time he stopped him. Moreover, this provision of the Chicago Municipal Code does not, in any way, authorize an officer to randomly stop and frisk a gang member who is loitering; rather, it only authorizes the officer to first order the gang members to disperse and then arrest them if they are found loitering in the same place within eight hours. ¶ 24 Because we conclude that the respondent's motion to quash his arrest and suppress evidence should have been granted, we reverse the trial court's finding of delinquency and we need not address his remaining arguments. ¶ 25 Reversed.
of the "area" or "neighborhood" being evaluated ***; and (3) temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue ***.' " Harris, 2011 IL App (1st) 103382, ¶ 14, quoting United States v. Wright, 485 F.3d 45, 53-54 (1st Cir. 2007).