People v. Hood , 2019 IL App (1st) 162194 ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2021.03.11
06:53:04 -06'00'
People v. Hood, 2019 IL App (1st) 162194Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption PATRICK HOOD, Defendant-Appellant.
District & No. First District, First Division
No. 1-16-2194
Filed December 31, 2019
Rehearing denied February 6, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-22057; the
Review Hon. James M. Obbish, Judge, presiding.
Judgment Affirmed and remanded as to fines, fees, and costs.
Counsel on James E. Chadd, Patricia Mysza, and Aliza R. Kaliski, of State
Appeal Appellate Defender’s Office, and Scott F. Main, of DePaul University
Legal Clinic, both of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Marci Jacobs, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE GRIFFIN delivered the judgment of the court,
with opinion.
Justice Pierce concurred in the judgment and opinion.
Justice Walker dissented, with opinion.
OPINION
¶1 Following a bench trial, defendant Patrick Hood was convicted of aggravated unlawful use
or possession of a weapon (AUUW) without a valid Firearm Owner’s Identification (FOID)
Card or concealed carry license (CCL) (720 ILCS 5/24-1.6(a)(1) (West 2014)) and sentenced
to eight years’ imprisonment. On appeal, defendant contends the trial court erred by denying
his pretrial motion to quash arrest and suppress evidence because police lacked reasonable
suspicion to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). He also challenges
various monetary fines and fees assessed by the court. For the following reasons, we affirm
the judgment of the circuit court of Cook County and remand as to the fines, fees, and costs
order.
¶2 I. BACKGROUND
¶3 Defendant was charged with violating the armed habitual criminal statute (count I),
unlawful use or possession of a weapon by a felon (UUWF) (counts II, III, IV, and V), and
AUUW (counts VI, VII, VIII, IX, X, and XI), stemming from his December 4, 2014,
possession of a handgun while he was seated inside his vehicle. Prior to trial, defendant moved
to suppress evidence of the gun, arguing that police lacked probable cause to search his car and
seize the gun because he was not violating any laws at the time of the search. He also argued
that his “arrest, search, and seizure” were made in violation of his fourth amendment rights.
¶4 A. Suppression Hearing
¶5 1. Testimony of Officer Nick Beckman
¶6 At the suppression hearing, Chicago police officer Nick Beckman testified that, on
December 4, 2014, at around 6:30 a.m., he was seated in the front seat of an unmarked police
car with “municipal plates,” driving westbound in the vicinity of the 3900 block of West
Grenshaw Street, a one-way eastbound street. Officer Beckman described the area as “a very
high narcotic area.” The sun was not out yet, but streetlights were on. Officer Beckman was
wearing plain clothes and a vest with his flashlight attached. As the officers were driving,
Officer Beckman noticed defendant sitting in the driver’s seat of a Pontiac Bonneville, which
was parked facing eastbound on Grenshaw. Inside the Bonneville were also a woman, later
identified as Quenisha Mason, who was seated in the front passenger seat, and a man, later
identified as Michael Neal, who was seated in the rear passenger seat. Officer Beckman could
not recall whether the dome light was on in the car. A man, later identified as Marcus Steward,
was standing outside of defendant’s vehicle holding money. Officer Beckman’s partner,
Officer Matthew Gallagher, stopped the police car facing defendant’s car, approximately 15 to
25 feet away. At that time, Officer Beckman saw Steward look at the police car then quickly
place the money he was holding into his pocket. Officer Beckman also saw defendant “making
-2-
movements towards the bottom of his seat while he was seated.” It appeared to Officer
Beckman that defendant was retrieving something from the floorboard.
¶7 Defendant’s behavior was “suspicious” to Officer Beckman, so he quickly exited the police
car and “jogged” to defendant’s car because “there was an officer safety issue at that point.”
As he approached, Officer Beckman illuminated the driver’s side of defendant’s car with his
flashlight and observed defendant placing a two-toned handgun into a plastic bag. Defendant
then tossed the bag to the rear of his car. Upon seeing defendant toss the bag, Officer Beckman
quickly opened the driver’s side door and “took hold” of defendant. Officer Clarke briefly
detained defendant while Officer Gallagher recovered the bag containing the gun from the
backseat of the car. The gun, a two-tone Smith and Wesson, loaded with 11 live rounds, was
the same gun that Officer Beckman had observed defendant holding in his lap.
¶8 Officer Beckman acknowledged that he did not witness any illegal transactions occur. He
further acknowledged he did not have an arrest warrant or search warrant for defendant or his
car. The incident, from the time Officer Gallagher stopped the car until Officer Beckman
approached defendant’s window, took “seconds.”
¶9 2. Testimony of Marcus Steward
¶ 10 Marcus Steward testified that, on the day in question, he was getting off work and had
received a call from defendant. They were “meeting up” to discuss what they were going to do
that day. He had known defendant for several years from their neighborhood. Defendant was
in his car and Steward was standing outside the passenger side. As he was speaking with
defendant, the police arrived. The officers drove the wrong way on Grenshaw, a one-way street.
Steward knew they were officers when they exited their car. The officers approached the
driver’s side of defendant’s car and pulled defendant and the other occupants out of the car.
Steward denied seeing defendant with a gun or throwing anything into the back seat.
¶ 11 Steward could not recall whether he had money in his hand. He denied that the police used
a flashlight. Although he was standing nearby when the police went into defendant’s car, he
did not see them remove a gun. He testified he did not pay attention to the police. Steward
acknowledged he had a prior conviction for possession of a controlled substance.
¶ 12 3. Ruling on the Motion to Suppress
¶ 13 Following arguments, the court denied defendant’s motion to quash arrest and suppress
evidence. In denying the motion, the court recounted the evidence, noting that the officers were
driving the wrong direction on Grenshaw prior to observing defendant’s car. The court found
Officer Beckman credible and Steward’s credibility “strained.” The court concluded:
“In any event, the officer that was credible that I believe actually saw the gun in
[defendant’s] hand as he approached the car, I believe seeing [defendant] attempting to
conceal the gun and get rid of it from his own possession as best he could, I believe had
probable cause to then recover the gun.”
¶ 14 Following the denial of his motion to suppress, defendant filed a motion to reconsider,
arguing that the mere presence of a gun is not a crime, and therefore, its warrantless seizure
was not supported by probable cause. Defendant emphasized that there was no evidence
presented regarding whether he had a valid Firearm Owner’s Identification Card or concealed
carry license at the time of his seizure. The case proceeded to a joint hearing on defendant’s
-3-
motion to reconsider and bench trial.
¶ 15 B. Joint Hearing and Bench Trial
¶ 16 1. Testimony of Officer Beckman
¶ 17 Officer Beckman’s testimony at trial was substantially the same as his testimony at the
suppression hearing. He added that, on the relevant date, he was working with Chicago police
officers Gallagher, Clarke, and Urbanski. All four officers were driving in the same unmarked
car. When they stopped in front of defendant’s car, defendant was making “quick, furtive
movements toward what appeared to be the floorboard area as [if] he was retrieving
something.” After Officer Beckman approached defendant’s side of the car, he saw defendant
toss the bag containing the gun. Clarke assisted Officer Beckman in detaining defendant.
Officer Beckman then alerted the other officers that “there was a gun thrown.” The officers
subsequently ordered the other two passengers, Mason and Neal, out of the car. They were
briefly detained for investigation. Officer Beckman directed Officer Gallagher to the black
plastic bag, which Officer Gallagher recovered from the back seat. The bag contained the gun.
Only seconds elapsed between Officer Beckman seeing defendant place the gun in the bag and
toss it, and when Officer Gallagher recovered the gun.
¶ 18 On cross-examination, Officer Beckman testified that, initially, his attention was caught by
Steward holding money and then quickly placing it in his pocket and defendant’s furtive
movements. Officer Beckman thought defendant was possibly armed based on his movements,
although he could not recall whether he noted that in defendant’s arrest report. He believed he
wrote in the report that there was an officer safety issue “at some point.” He acknowledged
that he wrote in the report that he approached defendant’s car for a field interview. Officer
Beckman clarified he approached the car for a field interview because he was in a high
narcotics area and deemed the activity he saw to be suspicious.
¶ 19 Officer Beckman further acknowledged that, when he initially observed defendant with the
gun, he did not know whether defendant had a valid Firearm Owner’s Identification Card or
concealed carry license. After the gun was recovered, Officer Beckman asked defendant
whether he had a concealed carry license, and defendant responded “no.” He did not give
defendant Miranda warnings prior to asking whether defendant had a concealed carry license.
At the time Officer Beckman asked about the concealed carry license, defendant was in custody
and not free to leave.
¶ 20 2. Testimony of Officer Matthew Gallagher
¶ 21 Officer Matthew Gallagher testified that he stopped the squad car and approached the
passenger side of defendant’s vehicle, while Clarke and Officer Beckman approached the
driver’s side. At some point, Officer Beckman told Officer Gallagher there was a “143 Adam,”
which is a police term for a weapons violation. After receiving the code about the gun, Officer
Gallagher ordered Neal out of the rear passenger seat. Officer Gallagher subsequently found a
black plastic bag containing a Smith and Wesson handgun with 11 live rounds, including a
round in the chamber. There were no other items in the back seat of the car. Officer Gallagher
kept the gun in his constant care, custody, and control until returning to the police station,
where he gave the gun to Clarke to inventory.
-4-
¶ 22 At the police station, about 6:55 a.m. that day, Officer Gallagher, in the presence of Clark,
advised defendant of his Miranda rights. Defendant verbally indicated he understood his rights
and agreed to speak with the officers. He told Officer Gallagher that he received the gun from
his cousin. Defendant’s cousin instructed him to sell the gun for $700, keep $400 for himself,
and give $300 back to his cousin. Defendant also stated that he was a rapper and people knew
that “he was making bread,” which Officer Gallagher understood meant “money.”
¶ 23 On cross-examination, Officer Gallagher testified he did not remember defendant’s car
having tinted windows. He did not know whether defendant had a valid Firearm Owner’s
Identification Card or concealed carry license at the time he retrieved the gun from defendant’s
car. Officer Gallagher also did not know whether defendant was involved in any criminal
activity aside from him having the gun. Officer Gallagher acknowledged that he did not have
defendant sign a Miranda advisory form and did not memorialize the interview. Officer
Gallagher did not “run” defendant’s cousin’s name to track down where the gun came from.
He did not recall to whom the gun was registered but remembered that it had been stolen from
Indiana.
¶ 24 The State thereafter introduced into evidence two certified copies of defendant’s prior
convictions for possession of a controlled substance and manufacture and delivery of a
controlled substance. The State also introduced a certified document from the office of the
Secretary of State showing the Pontiac Bonneville was registered to defendant. The parties
stipulated that defendant did not have a valid Firearm Owner’s Identification Card or concealed
carry license on December 4, 2014.
¶ 25 3. Testimony of Defendant
¶ 26 Defendant testified that, on December 4, 2014, he was going to pick up Mason, his
girlfriend, to take her to work. Neal was in the rear passenger seat of his car. While they waited
outside Mason’s house, Steward was “pulling up” two houses down with his girlfriend.
Steward stood outside the passenger side of defendant’s car and spoke with defendant.
Eventually, Mason came outside and sat in the front passenger seat. Shortly thereafter, the
police drove up. Prior to their arrival, Steward had started walking away from defendant’s car.
However, the police stopped their car in the middle of the street in front of Steward and jumped
out of their car with their guns drawn. The officers instructed Steward to put his hands in the
air.
¶ 27 Defendant, Mason, and Neal remained in the car and watched Steward. Eventually, the
officers ran to defendant’s car with their guns drawn and told defendant to “freeze” and put his
hands up. Defendant repeatedly told the officers his hands were up, but the officers could not
see him because his windows were tinted. The officers ordered him out of the car, but he
refused because he was “doing nothing” and driving on a suspended license. Mason indicated
she was scared so defendant told her to exit the car, but he still refused to exit. Once Mason
exited, an officer reached in the car and pulled Neal out of the back seat. The officers opened
defendant’s door and he stepped out. One officer grabbed his wrist and told defendant he was
not under arrest, but they wanted to handcuff him for the officers’ and his own safety.
Defendant refused to be handcuffed and “put up a tussle.” Two officers subdued him and
handcuffed him.
¶ 28 After running defendant’s name and identification, the officers asked defendant why he
was “acting like an a***” when he was driving on a suspended license. Defendant told them
-5-
he wanted to remain in his car because it was parked, and he knew they would run his name if
he exited. Defendant denied possessing or having seen the recovered gun. He also denied
referring to money as “bread.” He acknowledged that he had three prior convictions for
possession of a controlled substance, manufacture and delivery of a controlled substance, and
robbery.
¶ 29 During closing arguments, defense counsel argued, in relevant part, the gun and
defendant’s subsequent statement should have been suppressed. Counsel reiterated that the
police did not see a crime being committed and therefore lacked probable cause to search
defendant’s car. Counsel also argued that, even if the gun was in plain view, possession of a
gun in Illinois is not a crime and the police did not know whether defendant was legally in
possession of the gun until after they removed him from the car and placed him in custody.
¶ 30 4. Ruling on Defendant’s Motion to Reconsider
¶ 31 The court denied defendant’s motion to reconsider the denial of his motion to suppress.
The court concluded that a “reasonable person might believe the possibility of a narcotics
transaction taking place” based on the circumstances: a person, in a high narcotics area,
standing next to a car holding money. The court further found the officers “didn’t necessarily
know” that narcotics sales were taking place, but “it gave rise to some suspicion on their part.”
Although the officers did not know whether defendant had a valid Firearm Owner’s
Identification Card or concealed carry license when they observed defendant with a gun, the
court found his furtive movements and attempts to conceal the gun were “certainly,” “more
than enough reasonable grounds for the officers to conduct a further investigation” for safety
purposes, which required them to “take control of the individuals and the weapon.” The court
explained:
“I don’t think we’ve come to a point, nor should we, where an officer’s
encountering an individual doing what [defendant] was observed doing at 6:30 in the
morning in a high crime area that they need to have a chat to determine FOID or CCL
status at that point in time prior to making sure that that weapon is not in a position
where it could kill one of those police officers, or it could kill any citizen in the vehicle
or outside the vehicle.”
The court opined that “what might be certainly criticized as an abuse of discretion would be if
the officers pulled their guns and started shooting. But that’s not what happened here.” The
court additionally concluded that the officers were not required to Mirandize defendant prior
to asking whether he had a valid Firearm Owner’s Identification Card or concealed carry
license because the question was not asked during a custodial interrogation to determine the
elements of a crime.
¶ 32 5. Finding of Guilt
¶ 33 The court found defendant guilty of two counts of UUWF (counts II and III), and six counts
of AUUW (counts VI-XI). It determined that Officer Beckman’s testimony at the suppression
hearing was credible and that he was credible at trial. The court also noted that Officer
Beckman’s testimony was corroborated by Officer Gallagher, a “very credible witness.” The
court explained that defendant’s version of events “stretches the bounds of credibility” where
he testified that he refused to get out of his car because his license was suspended but was later
willing to fight and refuse to obey the police. The court pointed out that neither officer testified
-6-
that defendant resisted arrest and “it’s the first time in [the court’s] 40 some years of being
involved in criminal law that the defendant said, I resisted the police and I got into a tussle
with the police, and the police said that didn’t happen.”
¶ 34 The court subsequently denied defendant’s posttrial motion, wherein he again argued the
gun should have been suppressed. It merged the counts into count VI, AUUW without a valid
Firearm Owner’s Identification Card or concealed carry license, and sentenced defendant to
eight years’ imprisonment.
¶ 35 II. ANALYSIS
¶ 36 Defendant claims the trial court erred in denying his motion to suppress because police
lacked reasonable suspicion to justify a Terry stop. Defendant asks us to review the issue on
the merits, or alternatively, “as a matter of plain error or ineffective assistance of counsel”
because “the precise issue of whether the Terry stop was unlawful at its inception” was not
raised in the trial court.
¶ 37 We find it unnecessary to address the forfeiture issue because the initial encounter between
Officer Beckman and defendant did not implicate the fourth amendment. See People v.
Almond, 2015 IL 113817, ¶ 65 (because the incident between the officer and the defendant was
a consensual encounter, there was no need to address the defendant’s remaining argument that
the incident constituted an improper Terry stop). The judgment of the circuit court of Cook
County must be affirmed.
¶ 38 We apply a two-part standard of review when reviewing a trial court’s ruling on a motion
to suppress. People v. Holmes, 2017 IL 120407, ¶ 9. We afford great deference to the trial
court’s findings of fact and reverse those findings only if they are against the manifest weight
of the evidence. However, we may undertake our own assessment of the facts “in relation to
the issues and may draw [our] own conclusions when deciding what relief should be granted.”
People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Thus, we review de novo the trial court’s
ultimate legal ruling as to whether the evidence should be suppressed. Holmes, 2017 IL
120407, ¶ 9.
¶ 39 In doing so, we may consider evidence adduced in both the suppression hearing and at trial.
People v. Richardson, 234 Ill. 2d 233, 252 (2009). Further, we may affirm the trial court’s
ruling on any basis supported by the record. People v. Johnson, 208 Ill. 2d 118, 128 (2003)
(noting “[i]t is a fundamental principle of appellate law” that, on appeal, a reviewing court
reviews the trial court’s conclusion and not its reasoning).
¶ 40 In this court, defendant does not contend that the trial court’s findings of fact were
erroneous; instead, he claims that the court erred in reaching its legal conclusion. Specifically,
he argues that he was the victim of an unlawful seizure when the officers “boxed in” his vehicle
as they arrived on the scene and they did not have reasonable suspicion of criminal activity to
conduct a Terry stop. He also asserts that his mere possession of a firearm is not a crime
pursuant to People v. Aguilar, 2013 IL 112116, and therefore did not justify the Terry stop or
provide probable cause for his arrest or subsequent search of his vehicle. Thus, defendant
maintains that the gun, and his statement that he did not have a concealed carry license, should
have been suppressed as the fruits of an unlawful search and seizure.
¶ 41 The United States and Illinois Constitutions guarantee citizens the right against
unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6.
-7-
Generally, reasonableness under the fourth amendment requires a warrant supported by
probable cause. People v. Sanders, 2013 IL App (1st) 102696, ¶ 12. However, our supreme
court has recognized three types of police-citizen encounters that do not constitute an
unreasonable seizure: (1) arrests, which must be supported by probable cause; (2) a brief
investigative stop, also known as a Terry stop; and (3) consensual encounters that do not
involve coercion or detention and therefore do not implicate fourth amendment interests.
Luedemann, 222 Ill. 2d at 544.
¶ 42 In the instant case, the parties disagree on the timing of defendant’s seizure. Defendant
argues he was seized for fourth amendment purposes when the officers first arrived on the
scene because their approach amounted to a show of authority such that a reasonable person
would feel compelled to submit to the officers at the time they stopped their vehicle.
Specifically, defendant argues that the officers drove the wrong way on Grenshaw, boxed in
his vehicle when they parked, and two officers with flashlights approached his car. He further
contends the seizure was unlawful because the police lacked a reasonable suspicion of criminal
activity to justify an investigative Terry stop.
¶ 43 The State replies that the initial encounter was a third-tier consensual encounter prior to
Officer Beckman seeing defendant with the gun. The State asserts that, once Officer Beckman
saw defendant with the gun, the officer had, based on the totality of the circumstances, a
reasonable suspicion that criminal activity was afoot to justify a Terry stop and secure the gun.
Finally, the State maintains that, upon securing the gun and learning that defendant did not
have a concealed carry license, the officers had probable cause to arrest defendant.
¶ 44 A person is considered seized when a law enforcement officer, “ ‘ “by means of physical
force or show of authority, has in some way restrained the liberty of a citizen.” ’ ” Id. at 550(quoting Florida v. Bostick, 501 U.S. 429, 434 (1991), quoting Terry, 392 U.S. at 19 n.16). To
determine whether an individual seated in a parked car has been seized, the relevant inquiry is
whether a reasonable person in that position would have believed that he was free to decline
the officer’s requests or otherwise terminate the encounter. People v. Gomez, 2018 IL App
(1st) 150605, ¶ 20 (citing Luedemann, 222 Ill. 2d at 550-51).
¶ 45 When determining whether an individual was seized, we consider (1) the threatening
presence of multiple officers, (2) the display of a weapon by an officer, (3) some physical
touching of the individual’s person, and (4) the use of language or tone of voice indicating that
compliance might be compelled. United States v. Mendenhall, 446 U.S. 544, 554 (1980);
Luedemann, 222 Ill. 2d at 553. “In the absence of some such evidence, otherwise inoffensive
contact between a member of the public and the police cannot, as a matter of law, amount to a
seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22. Additionally, other
factors that have been found indicative of a seizure of a parked vehicle are boxing the car in,
“ ‘many’ ” officers approaching the car on all sides, pointing a gun at the suspect and ordering
him to place his hands on the steering wheel, and use of flashing lights. Luedemann, 222 Ill.
2d at 557 (quoting 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 434-35 (4th ed. 2004)).
¶ 46 Here, the record does not support defendant’s contention that he was seized within the
meaning of the fourth amendment when the officers initially stopped their car or approached
his vehicle. The record shows that, as the officers were traveling the wrong direction on
Grenshaw in an unmarked car with municipal license plates, they noticed defendant’s car and
Steward standing at the passenger side holding money. The officers stopped their car on the
street, 15 to 25 feet away from defendant but facing his vehicle. See id. at 558 (an officer
-8-
parking in the middle of a roadway, without signaling compliance or other shows of authority,
was not coercive behavior indicative of a seizure).
¶ 47 Upon stopping, Officer Beckman observed Steward look at the officers and hastily put
money into his pocket while defendant made “furtive” movements toward the floorboard. At
that point, the officers exited their car to conduct a field interview. See Bostick, 501 U.S. at
434-35, 439 (police have the right to approach citizens and ask potentially incriminating
questions even when officers have no basis for suspecting a particular individual; they may
generally ask questions of that individual).
¶ 48 Although four officers were present, the record indicates that only two officers, in plain
clothes and with a flashlight, approached defendant’s car. At this point, the officers were
actually outnumbered by defendant, Neal, Mason, and Steward. See Almond, 2015 IL 113817,
¶ 58 (no seizure where two officers were outnumbered by defendant and two men inside a
store). Moreover, Officer Beckman’s use of his flashlight was not coercive where he testified
that it was still dark at the time of the encounter. See Luedemann, 222 Ill. 2d at 561-63 (without
other evidence of coercive behavior an officer’s use of a flashlight was merely incident to his
performance of his job after dark). In addition, because the officers were in an unmarked car
there is no indication that they had, or activated, flashing lights. The record also does not show
that, as the officers approached, they displayed their weapons or used language and tone of
voice compelling defendant to comply with their request. See id. at 554 (“[I]t would seem self-
evident that the absence of Mendenhall factors, while not necessarily conclusive, is highly
instructive. If those factors are absent, that means that only one or two officers approached the
defendant, they displayed no weapons, they did not touch the defendant, and they did not use
any language or tone of voice indicating that compliance with their requests was compelled.”).
Finally, although Officer Beckman testified that he jogged over to defendant’s car, we cannot
conclude based on this factor, standing alone, that defendant was seized at the time the officers
initially approached his vehicle.
¶ 49 The dissent’s position is not factually supported by the record before us. The dissent places
great emphasis on defendant’s testimony “that the officers jumped out of their cars with their
guns drawn” and “then the three officers came running over to [Mr. Hood’s] car.”
¶ 50 Defendant’s testimony was that he was talking to Mr. Steward who “walked off” prior to
the police arriving. The police “stopped in the middle of the street in front of [Steward.] They
jumped out of their car with their guns drawn and told Mr. Steward to put his hands up.”
Defendant was sitting in his car “watching to see what was happening to [his] friend.” After
that, the officer on the passenger’s side of defendant’s car pointed to the car and the three
officers came running over to the car and pulled their guns out. This is significantly different
than the “three officers suddenly emerged from two squad vehicles, brandishing guns, either
jogging or running toward Mr. Hood’s vehicle,” as the dissent characterizes the circumstances.
Infra ¶ 84.
¶ 51 More importantly, the trial court found that defendant’s story was completely lacking
credibility. It is axiomatic that great deference must be given to the trial court’s credibility
findings. People v. Grant, 2013 IL 112734, ¶ 12. Yet, the dissent wholly endorses defendant’s
testimony, takes it as true, and repeatedly mentions the officers having their guns drawn to
support the conclusion that defendant was seized before the officers saw him in possession of
an illegal weapon. Defendant was the only person who testified to this “fact.”
-9-
¶ 52 Without any corroborating testimony in the record that the officers drew their guns and
unable to rely on the eyewitness testimony of Steward, who said that he did not pay attention
to the police, the dissent turns to Officer Beckman’s lone statement that there was “an officer
safety issue” to support its factual finding that he drew his gun. The dissent states that “Officer
Beckman’s testimony that [defendant’s] movements suggested to him ‘an officer safety issue’
supports [defendant’s] testimony that Officer Beckman drew his gun as he approached the
Pontiac.” (Emphasis added.) Infra ¶ 88. The dissent then explains that “[o]ne expects police to
arm themselves when they face issues of officer safety.” (Emphasis added.) Infra ¶ 88. As it
stands, the dissent’s factual finding that Officer Beckman drew his gun is based on an
expectation and testimony found to be completely lacking in credibility.
¶ 53 The dissent likewise makes the factual finding that defendant’s vehicle was “blocked in”
when the officers parked their vehicle 15 to 25 feet in front of defendant’s vehicle. To the
extent our conception of what constitutes “blocked in” is relevant, it seems apparent that a
vehicle parked 15 to 25 feet away would not be blocking the other vehicle. The record is totally
undeveloped on the physical landscape of the scene. It is impossible to know, for example, the
officers’ precise positions, the width of the street, or about the presence of other vehicles or
features. Again, the dissent takes defendant’s testimony at face value and construes the record
against the State to make unsupported factual findings.
¶ 54 When the dissent sets forth its analysis of the “facts” regarding whether defendant was
“seized” (see infra ¶¶ 89-90), the recitation is comprised entirely of testimony to which this
court should not afford any weight and to inferences from the testimony that are unreasonable
or belie the officers’ stated observations that the trial court found to be “very credible.”
¶ 55 The dissent ultimately concludes that “[t]he motion to suppress that counsel failed to
present had merit” and “[defendant] has shown that his trial counsel provided ineffective
assistance of counsel by failing to file the motion.” Infra ¶ 105. But to prevail on an ineffective
assistance of counsel claim the defendant must satisfy both prongs of the Strickland test and
show that (1) his counsel was deficient and (2) the deficiency caused him or her to suffer
prejudice. Strickland v. Washington, 466 U.S. 668 (1984); People v. Bew, 228 Ill. 2d 122, 127
(2008); People v. Henderson, 2013 IL 114040, ¶ 15 (to establish prejudice under Strickland,
the defendant must demonstrate that the unargued suppression motion is meritorious and that
a reasonable probability exists that the outcome of the trial could have been different had the
evidence been suppressed). Here, the dissent makes no finding on the first prong of the
Strickland test and does not discuss whether the trial outcome would have been different if the
evidence had been suppressed. See People v. Patterson, 2014 IL 115102, ¶ 81.
¶ 56 The dissent states that the motion to suppress filed by counsel “did not address the issue of
whether police had a valid basis for a Terry stop.” Infra ¶ 83. Fatal to that conclusion, however,
is the fact that the motion to suppress expressly alleged that the “arrest search and seizure were
made in violation of the defendant’s right under the Fourth Amendment” and at the suppression
hearing, counsel developed the factual basis upon which the trial court considered and denied
any Terry issues. Defendant points this out in his opening brief: “the factual basis for [the
Terry] issue was fully developed during testimony at the suppression hearing and at trial, and
the trial court was fully aware of the circumstances surrounding the stop.”
¶ 57 At the close of the suppression hearing the trial court expressly engaged in a Terry analysis,
stating that, “the officer observes something that he perceived to be somewhat suspicious
activity of a potential drug transaction,” stopped “the police vehicle approximately 25 feet
- 10 -
away” from defendant’s car and “observed [defendant] making various motions as if he were
concealing something or removing something or hiding something or taking something form
below the seat level of his car.” The trial court denied the motion to suppress.
¶ 58 At the hearing on defendant’s motion to reconsider, the trial court for the second time
conducted a Terry analysis, indicating that the officers saw “what I believe a reasonable person
might believe [was] the possibility of a narcotics transaction taking place” and “the officers
didn’t necessarily know that that is what in fact was taking place. But it gave rise to some
suspicion on their part. And so they stopped their vehicle and quickly approached the Pontiac
Bonneville that the person had been standing in front of with United States currency in his
hand.” The trial court found defendant not to be credible and denied the motion to reconsider.
¶ 59 It is clear, based on this record, that neither the motion to suppress itself, nor the testimony
given at either hearing were limited to the issue of probable cause, and the trial court addressed
the legality of the initial stop under Terry before denying both motions.
¶ 60 We conclude that after stopping the police car, approaching defendant’s car, and seeing the
gun, the totality of the circumstances quickly gave rise to a reasonable suspicion on the part of
the officers that criminal activity was taking place and therefore justified an investigatory Terry
stop.
¶ 61 Pursuant to Terry, “an officer may, within the parameters of the fourth amendment, conduct
a brief, investigatory stop of a citizen when the officer has a reasonable, articulable suspicion
of criminal activity, and such suspicion amounts to more than a mere ‘hunch.’ ” People v.
Gherna, 203 Ill. 2d 165, 177 (2003). During a Terry stop, an officer may temporarily detain an
individual for questioning where the officer reasonably believes the individual has committed,
or is about to commit, a crime. Terry, 392 U.S. at 21-22; Sanders, 2013 IL App (1st) 102696,
¶ 13.
¶ 62 In order to justify a Terry stop, officers must be able to point to specific and articulable
facts which, considered with the rational inferences from those facts, make the intrusion
reasonable. Sanders, 2013 IL App (1st) 102696, ¶ 14; People v. Rhinehart, 2011 IL App (1st)
100683, ¶ 14. When determining whether an investigatory stop is reasonable, we rely on an
objective standard and view the facts from the perspective of a reasonable officer at the time
of the stop. Sanders, 2013 IL App (1st) 102696, ¶ 14. A decision to make a Terry stop is a
practical one based on the totality of the circumstances. Id.¶ 63 Here, Officer Beckman articulated several facts which justified an investigatory stop based
on the totality of the circumstances. Specifically, Officer Beckman testified that the stop
occurred in a high narcotics area. Although the fact that it was a high narcotics area cannot,
alone, provide reasonable suspicion to stop defendant, it is a factor that may be considered
along with others to determine whether the officer had reasonable suspicion based on the
totality of the circumstances. See People v. Lockett, 311 Ill. App. 3d 661, 669 (2000) (noting
that gang activity in the area one week prior to the defendant’s detention, coupled with, among
other things, the officer’s belief that the defendant was hiding a weapon in his hand, gave the
officer a reasonable suspicion that the defendant was about to commit a crime).
¶ 64 The dissent rightly points out the troubling aspects of police officers invoking the notion
of “high crime areas” as a substitute for criteria that implicates officer safety concerns or that
justifies a reasonable suspicion of criminal activity. See infra ¶¶ 82, 100. The dissent would
find “high narcotics area” and “high crime area” provide inappropriate factors to conduct an
investigatory stop under article I, section 6, of the Illinois Constitution. While we do not
- 11 -
necessarily disagree with the sentiment contained in the dissent, the law and the facts of this
case do not allow us to agree with such a holding.
¶ 65 The binding precedential law allows officers to consider that an area is known for high
levels of crime. The United States Supreme Court held in Illinois v. Wardlow, 528 U.S. 119,
124 (2000), that the fact that a stop occurred in a “high crime area” is among the relevant
contextual considerations in a Terry analysis. The Illinois Supreme Court, citing Wardlow, also
has held that officers are not required to ignore the relevant characteristics of a location in
determining whether the circumstances are suspicious to warrant further investigation. People
v. Timmsen, 2016 IL 118181, ¶ 13. Finally, this court has very recently cited Wardlow in
holding the fact that the stop occurred in a high crime area is a relevant contextual consideration
in any Terry analysis. People v. Salgado, 2019 IL App (1st) 171377, ¶ 25. In People v. Horton,
2019 IL App (1st) 142019-B, ¶ 64, this court, as a partial basis for finding that the police did
not have a reasonable suspicion that a crime was being committed, stated that no testimony
indicates the officers believed the neighborhood to be dangerous.
¶ 66 Plainly, the officers’ presence in an area in which their experience informs them about a
high level of criminal activity is a relevant consideration when we are sitting in judgment about
the reasonableness of the officers’ actions. Wardlow, 528 U.S. at 124; see also Timmsen, 2016
IL 118181, ¶ 13 (“officers are not required to ignore the relevant characteristics of a location
in determining whether the circumstances are sufficiently suspicious to warrant further
investigation, and thus, the fact that an investigatory stop occurred in a high-crime area is
among the relevant contextual considerations in a Terry analysis”). We have binding precedent
on the matter from the Supreme Court of the United States and the Illinois Supreme Court, so
we need not, nor should we, look to other states or federal court dissents for guidance—we are
duty bound to apply that law.
¶ 67 While the dissent would hold that police officers can no longer consider the amount of
crime that occurs in an area to inform their policing decisions in that area, the Supreme Court
of the United States and the Illinois Supreme Court have expressly authorized that
consideration. As our supreme court recently reminded us, the “circuit and appellate courts are
bound to apply this court’s precedent to the facts of the case before them under the fundamental
principle of stare decisis” and choosing to do otherwise is “serious error.” Yakich v. Aulds,
2019 IL 123667, ¶ 13. When the supreme court has declared the law on a particular point, “ ‘it
alone can overrule and modify its previous opinion, and the lower judicial tribunals are bound
by such decision and it is the duty of such lower tribunals to follow such decision in similar
cases.’ ” (Emphasis omitted.) Id. (quoting Blumenthal v. Brewer, 2016 IL 118781, ¶ 61). So,
while the dissent is free to question the propriety of the continued consideration of the character
of a neighborhood in making policing decisions, it is not free to disregard the settled law and
declare that we should not follow it.
¶ 68 Moreover, in this case, the officers had far more than just their presence in a high crime
neighborhood to justify further investigation. Officer Beckman also saw defendant “making
movements towards the bottom of his seat while he was seated.” It appeared to Officer
Beckman that defendant was retrieving something from the floorboard. At trial, Officer
Beckman added that when they stopped in front of defendant’s car, defendant was making
“quick, furtive movements toward what appeared to be the floorboard area as [if] he was
retrieving something.” As Officer Beckman approached defendant’s car, he saw defendant
placing a gun in a black plastic bag and throwing it into the backseat where another individual
- 12 -
was seated. Based on the totality of these circumstances, Officer Beckman had a reasonable,
articulable suspicion of criminal activity to justify a Terry stop. See, e.g., Gomez, 2018 IL App
(1st) 150605, ¶ 30 (finding a defendant’s “furtive behavior” and attempts to conceal a gun
provided officers with reasonable suspicion that he unlawfully possessed the gun).
¶ 69 Upon seeing defendant attempting to conceal the gun, the officers were permitted to
conduct a protective sweep of his car. See People v. Colyar, 2013 IL 111835, ¶ 34 (extending
the Terry protective search for weapons to permit a protective search of a passenger
compartment of a vehicle during an investigatory stop and explaining the “ ‘crux’ ” of Terry
is an interest in maintaining officer safety (citing Terry, 392 U.S. at 23)). As Terry instructs,
“[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a
reasonable prudent man in the circumstances would be warranted in the belief that his safety
or that of others was in danger.” Terry, 392 U.S. at 27. “The search is permissible only when
the officers possess a reasonable belief, based on specific and articulable facts and reasonable
inferences from those facts, that the individual was dangerous and could gain control of a
weapon.” Colyar, 2013 IL 111835, ¶ 39.
¶ 70 The police officers in this case had more than a reasonable belief that defendant was in
possession of a weapon. Officer Beckman actually observed defendant toss a gun into the back
seat of his car, where another individual, Neal, was located and would have possible access to
the weapon. As soon as Officer Beckman observed defendant with the gun, Officer Beckman
alerted Officer Gallagher to the weapon. Officer Gallagher immediately recovered the bag
containing the gun from the back seat. These circumstances demonstrate officer safety was an
issue and that the search was “properly limited to locating the gun and neutralizing the threat.”
Id. ¶¶ 39, 52 (an investigative search of a passenger compartment should be limited to the area
where a weapon may be located). Thus, the brief search of defendant’s car and recovery of the
loaded gun was warranted and permissible as part of the Terry stop, and the gun was admissible
as evidence. See id. (noting weapons seized during a protective search for weapons during a
Terry stop are admissible (citing Terry, 392 U.S. at 52)).
¶ 71 Nevertheless, defendant maintains that the mere possession of a firearm is not a crime so
Officer Beckman’s observation of him with a gun could not provide either reasonable suspicion
of criminal activity or probable cause to arrest him and search his vehicle. We disagree.
Although possession of firearm is not a crime and the officers were unaware of defendant’s
status as a felon or whether he possessed a valid Firearm Owner’s Identification Card or
concealed carry license, his efforts to conceal and toss the gun were sufficient to provide the
officers with a reasonable suspicion that he was not in lawful possession of the gun. See id.
¶ 49 (police officers are not required to completely eliminate any legal explanation for a
defendant’s suspected possession of a firearm and establish that the defendant was committing
a weapons offense prior to investigating further during a Terry stop).
¶ 72 Critically, defendant subsequently admitted he did not have a concealed carry license, thus
confirming that he was not lawfully permitted to carry a gun. Although he asserts that
admission should be suppressed because he was not Mirandized, the State correctly points out
that the Firearm Concealed Carry Act permits a police officer to ask during an investigatory
stop whether a person carrying a firearm has the requisite license. 430 ILCS 66/10(h) (West
2014) (“If an officer of a law enforcement agency initiates an investigative stop *** of a
licensee or a non-resident carrying a concealed firearm *** upon the request of the officer the
licensee or non-resident shall *** present the license upon the request of the officer ***.”).
- 13 -
The officers, therefore, acted within their authority when they asked defendant about whether
he had a concealed carry license, and his statement that he did not have a concealed carry
license was properly admitted.
¶ 73 Having concluded that the police were justified in initiating an investigatory Terry stop and
recovering the weapon from defendant’s vehicle, we turn to whether the police had probable
cause to arrest defendant following the recovery of the gun. We find that they did. An officer
has probable cause to arrest a suspect when the facts known to the officer at the time of the
arrest are sufficient to lead a reasonably cautious person to believe that the suspect has
committed a crime. People v. Jackson, 232 Ill. 2d 246, 275 (2009). At the time of the Terry
stop and defendant’s subsequent arrest, the officers knew defendant had been in possession of
a gun, was attempting to conceal it, and admitted he did not have a concealed carry license.
These facts show that the officers had reason to believe defendant had committed a weapons
violation, and his arrest was proper.
¶ 74 In sum, we find that defendant’s fourth amendment rights were not violated by the officers’
conduct in these circumstances. The recovery of the gun and defendant’s statement that he did
not have a concealed carry license were not the result of an unlawful search and seizure.
Accordingly, the trial court did not err in denying defendant’s motion to suppress.
¶ 75 Defendant next challenges various fines and fees imposed by the trial court. He argues his
fines, fees, and costs order should be reduced by $30 and that his presentence incarceration
credit should apply to $145 of fines that are erroneously labeled as fees.
¶ 76 Defendant acknowledges that he failed to preserve these issues, but argues they are
reviewable under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967) and the plain error
doctrine or, alternatively, as a claim of ineffective assistance of counsel for failure to object to
the fines and fees errors. The State concedes the fines, fees, and costs order is incorrect and
agrees it should be modified.
¶ 77 On February 26, 2019, while this appeal was pending, our supreme court adopted new
Illinois Supreme Court Rule 472 (eff. Mar. 1, 2019), which sets forth the procedure in criminal
cases for correcting sentencing errors in, as relevant here, the “imposition or calculation of
fines, fees, and assessments or costs” and “application of per diem credit against fines.” Ill. S.
Ct. R. 472(a)(1), (2) (eff. Mar. 1, 2019). On May 17, 2019, Rule 472 was amended to provide
that “[i]n all criminal cases pending on appeal as of March 1, 2019, or appeals filed thereafter
in which a party has attempted to raise sentencing errors covered by this rule for the first time
on appeal, the reviewing court shall remand to the circuit court to allow the party to file a
motion pursuant to this rule.” Ill. S. Ct. R. 472(e) (eff. May 17, 2019). “No appeal may be
taken” on the ground of any of the sentencing errors enumerated in the rule unless that alleged
error “has first been raised in the circuit court.” Ill. S. Ct. R. 472(c) (eff. May 17, 2019).
Therefore, pursuant to Rule 472, we “remand to the circuit court to allow [defendant] to file a
motion pursuant to this rule,” raising the alleged errors regarding the imposition of fees and
the application of per diem credit against fines. Ill. S. Ct. R. 472(e) (eff. May 17, 2019).
¶ 78 III. CONCLUSION
¶ 79 Accordingly, the fines and fees issue is remanded pursuant to Rule 472(e). The trial court
is affirmed in all other respects.
- 14 -
¶ 80 Affirmed and remanded as to fines, fees, and costs.
¶ 81 JUSTICE WALKER, dissenting:
¶ 82 I must respectfully dissent because constitutional protections for underprivileged residents
cannot be “suspended or reduced in so-called ‘high crime’ [or high narcotic] neighborhoods.”
United States v. Black, 525 F.3d 359, 366 (4th Cir. 2008) (Gregory, J., dissenting). When law-
abiding people live, work, visit, or attend school in communities that the police describe as
high-crime or high-narcotic areas, they are often condemned without the protection of the law.
I cannot join the majority’s decision to find that Mr. Hood’s initial encounter with the police
was not a seizure, and I find that this case involves clear ineffective assistance of counsel.
¶ 83 On December 4, 2014, Officers Beckman and Gallagher worked with Officers Clarke and
Urbanski. Around 6:30 a.m., Officer Beckman, while driving the wrong direction on a one-
way street, saw Mr. Steward standing beside a Pontiac with cash in his hand. Officer Gallagher
stopped the unmarked squad vehicle 15 to 25 feet directly in front of the Pontiac. Mr. Hood sat
in the driver’s seat of the Pontiac, facing the squad vehicle. Officer Beckman and Officer
Clarke went to the driver’s side of the Pontiac, while Officer Gallagher went to the passenger
side. Officer Beckman handcuffed Mr. Hood moments later, claiming that he found a gun in
the vehicle. Police charged Mr. Hood with aggravated unlawful use of a weapon.
¶ 84 Mr. Hood’s attorney filed a “Motion to Suppress Physical Evidence,” but he used a form
document that challenged the evidence only as the product of an unlawful arrest. The motion
did not address the issue of whether police had a valid basis for a Terry stop.
¶ 85 At the hearing on the motion to suppress, Officer Beckman described the area of the arrest
as “a very high narcotic area.” Officer Beckman testified that, as he sat in the squad vehicle,
he saw Mr. Steward put cash in his pocket. Officer Beckman then “observed [Mr. Hood’s]
shoulders moving” and that “there was an officer safety issue at that point” because Officer
Beckman thought Mr. Hood “was getting something from his floorboard,” “which was
suspicious” to Officer Beckman. Officer Beckman testified, “I quickly exited my unmarked
squad car. I approached. I illuminated the area, his side of the vehicle, which was the driver’s
side.” Beckman “didn’t walk”; he “wouldn’t say [he] was in a full sprint, but [he] was moving
pretty quickly” to get to the driver’s side of the Pontiac. Neither party asked Officer Beckman
whether he drew his gun as he approached Mr. Hood’s vehicle. Although Mr. Hood’s attorney
presented Mr. Steward as a witness to the arrest, neither party asked Mr. Steward whether the
officers drew their weapons before approaching Mr. Hood’s vehicle. Mr. Steward stated he did
not see police take a gun from Mr. Hood’s vehicle.
¶ 86 The trial court found Officer Beckman credible, and his discovery of the gun gave him
probable cause to arrest Mr. Hood. The court denied the motion to suppress evidence. Even in
the motion to reconsider, defense counsel did not raise the issue of whether the officers had
the reasonable suspicion necessary to justify their initial stop of Mr. Hood.
¶ 87 In this appeal, Mr. Hood argues that his trial counsel provided ineffective assistance by
failing to move to suppress the evidence based on the lack of justification for the Terry stop.
Our supreme court explained the relevant standards:
“[W]here an ineffectiveness claim is based on counsel’s failure to file a suppression
motion, in order to establish prejudice under Strickland, the defendant must
demonstrate that the unargued suppression motion is meritorious, and that a reasonable
- 15 -
probability exists that the trial outcome would have been different had the evidence
been suppressed.” People v. Henderson, 2013 IL 114040, ¶ 15.
¶ 88 Mr. Hood’s attorney did not present him as a witness at the hearing on the motion to
suppress. At trial, Mr. Hood testified that the officers “jumped out of their cars with their guns
drawn.” The State offered no rebuttal, leaving the testimony uncontested. Officer Beckman’s
testimony that Mr. Hood’s movements suggested to him “an officer safety issue” supports Mr.
Hood’s testimony that Officer Beckman drew his gun as he approached the Pontiac. One
expects police to arm themselves when they face issues of officer safety, when “[t]he
brandishing of the weapon *** [is] necessary for the protection of the officers.” People v.
Starks, 190 Ill. App. 3d 503, 509 (1989).
¶ 89 The majority concludes that the unargued suppression motion lacked merit because until
the moment the police saw the gun, there was no seizure. I disagree with the majority’s finding
because the majority misinterprets the facts of this case. Police blocked in Mr. Hood’s vehicle,
three officers moved quickly toward Mr. Hood, and the officers had their guns drawn. Police
seized Hood once they started quickly approaching him.
¶ 90 The evidence at trial and on the motion to suppress establishes that three officers suddenly
emerged from two squad vehicles, brandishing guns, either jogging or running towards Mr.
Hood’s vehicle. One officer approached the passenger side, and two approached the driver’s
side. If Mr. Hood had tried to drive forward, he would have hit Officer Gallagher’s unmarked
squad vehicle 15 to 25 feet directly in front of him. If he tried to veer left, he might hit Officer
Beckman or Officer Clarke, and if he tried to veer right, he might hit Officer Gallagher. If he
attempted to drive in reverse, he would invite a stop for going the wrong way on a one-way
street. Once the officers began their rapid approach toward the Pontiac, they effectively boxed
Mr. Hood in, and certainly he was not free to terminate the encounter. People v. Gomez, 2018
IL App (1st) 150605, ¶ 20. Mr. Hood was seized.
¶ 91 A police officer has seized an individual, within the meaning of the fourth amendment,
when the officer “by means of physical force or show of authority, has in some way restrained
the liberty of a citizen.” People v. Luedemann, 222 Ill. 2d 530, 550 (2006). Mr. Hood was
definitely seized because three officers made a show of authority by approaching together (see
id. at 553) at a jog or run (see People v. Abram, 2016 IL App (1st) 132785, ¶ 53; State v.
Tucker, 642 A.2d 401, 405 (N.J. 1994)) while displaying weapons (see Luedemann, 222 Ill. 2d
at 553) after blocking Mr. Hood’s vehicle (see United States v. Stover, 808 F.3d 991, 997 (4th
Cir. 2015); People v. Mills, 115 Ill. App. 3d 809, 814 (1983)) and positioning themselves on
both sides of Mr. Hood’s vehicle. See People v. Gherna, 203 Ill. 2d 165, 179-80 (2003) (finding
that positioning of officers on either side of defendant’s vehicle constituted an official show of
authority to which a reasonable innocent person would feel compelled to submit).
¶ 92 The majority asserts that this dissent draws “inferences *** that belie the officers’ stated
observations.” Supra ¶ 54. Officer Beckman admitted that he quickly came to the driver’s side
of Hood’s car, and Officer Gallagher admitted that he approached the passenger side. Neither
officer ever claimed he did not draw his gun. No further evidence is needed to infer that police
boxed Hood in when officers were coming quickly at both sides of Hood’s car, with their squad
car only a few feet away, stopping directly in front of Hood, where Hood could not legally
drive any distance in reverse. The factual assertions in this dissent do not conflict in any way
with the testimony of the officers. Notably, the officers’ testimony conflicts with the majority’s
assertion that the officers “stopped *** in front of [Steward]” and “instructed Mr. Steward to
- 16 -
put his hands in the air.” Supra ¶ 26. The majority failed to acknowledge the unrebutted
evidence, supported by Officer Beckman’s assertion that he perceived “an officer safety issue,”
that the officers drew their guns as they hurried to Hood’s car.
¶ 93 The State argues that Mr. Hood’s encounter with police was a consensual encounter.
Nonetheless, the majority finds that Mr. Hood was not seized because there was not an
encounter until police observed the gun. Ostensibly, then, the majority finds that Mr. Hood
could have simply driven off as the officers jogged towards him. Mr. Hood clearly could not
have driven around the unmarked squad vehicle parked directly in front of him without the risk
of being killed. The officers seized Mr. Hood, within the meaning of the fourth amendment,
when they jogged towards him, with guns drawn, positioned themselves on both sides of his
vehicle, and blocked his vehicle from moving forward.
¶ 94 Under the fourth amendment,
“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.
[Citations.] The officer must have a ‘reasonable, articulable suspicion’ that criminal
activity is afoot. Illinois v. Wardlow, 528 U.S. 119 (2000). Although ‘reasonable,
articulable suspicion’ is a less demanding standard than probable cause, an officer’s
suspicion must amount to more than an inchoate and unparticularized suspicion or
hunch of criminal activity. [Citation.] The investigatory stop must be justified at its
inception and the officer must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant the
governmental intrusion upon the constitutionally protected interests of the private
citizen.” (Internal quotation marks omitted.) People v. Timmsen, 2016 IL 118181, ¶ 9.
¶ 95 At the time of the seizure, Officer Beckman saw Mr. Steward, in an area that Officer
Beckman described as “high narcotic,” putting cash in his pocket. Then Officer Beckman
claims that through Mr. Hood’s tinted windows, he saw Mr. Hood’s “shoulders moving” in
“quick, furtive movements” that looked to Officer Beckman like Mr. Hood “was getting
something from his floorboard.” The fact that Officer Beckman described the area as one with
a high volume of narcotic sales does little to justify the stop. See People v. Harris, 2011 IL
App (1st) 103382, ¶ 14. “The citing of an area as ‘high-crime’ requires careful examination by
the court, because such a description, unless properly limited and factually based, can easily
serve as a proxy for race or ethnicity.” United States v. Montero-Camargo, 208 F.3d 1122,
1138 (9th Cir. 2000). The sight of Mr. Steward putting cash in his pocket should not carry
much weight because people in underprivileged communities, like people in privileged
communities, use cash for noncriminal purposes and use more of it than those in other socio-
economic classes. See Malte Krueger, Card Rewards: Is There A ‘Reverse-Robin-Hood-
Effect’?, 34 No. 3 Banking & Fin. Services Pol’y Rep., 20, 21 (March 2015). Lower-income
people have fewer debit cards, fewer credit cards, and fewer bank accounts. Michael S. Barr,
Banking the Poor, 21 Yale J. on Reg. 121, 124 (2004). They are more likely to cash their
checks at currency exchanges. Id. Furthermore, the officers did not see any exchange take
place. See United States v. McCray, 148 F. Supp. 2d 379, 388 (D. Del. 2001). The officers
approached in an unmarked vehicle. Therefore, Stewart may have placed his cash back into his
pocket to avoid a potential robbery.
¶ 96 Mr. Hood’s shoulder movement does not justify the seizure. “Nervousness and furtive
gestures may, in conjunction with other objective facts, justify a Terry search, but ordinarily
- 17 -
‘[m]ere furtive gestures of an occupant of an automobile do not give rise to an articulable
suspicion suggesting criminal activity.’ ” State v. Lund, 573 A.2d 1376, 1383 (N.J. 1990)
(quoting State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989)). Mr. Hood’s encounter with
police resulted from no “more than an ‘inchoate and unparticularized suspicion or “hunch” ’
of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (quoting Terry v. Ohio,
392 U.S. 1, 27 (1968)).
“[T]he weighty social objective of crime prevention might well be served by
permitting stops and detentions without any requirement of a reasonable suspicion that
criminal activity has or is about to take place. In the absence of specific and articulable
facts supporting the reasonable suspicion, however, ‘the balance between the public
interest and [defendant’s] right to personal security and privacy tilts in favor of freedom
from police interference.’ Brown v. Texas, [443 U.S. 47,] 52 [(1979)].” People v.
Thomas, 660 P.2d 1272, 1277 (Colo. 1983) (en banc), overruled in part on other
grounds by People v. Archuleta, 980 P.2d 509, 515 (Colo. 1999).
¶ 97 Our recent decision in People v. Salgado, 2019 IL App (1st) 171377, involves
circumstances that contrast in informative ways with the circumstances here. First, police in
Salgado did not describe the area of the arrest nebulously as “a very high narcotic area,” an
epithet police might use for almost any place in Chicago where Blacks or Latinx persons reside.
Instead, police testified that around the 3800 block of West 30th Street, the Latin Kings and
Two-Six gangs had engaged in “ ‘recent aggravated batteries with firearms.’ ” Id. ¶ 7. The
defense could, in principle, challenge and verify the specific assertion, discovering the dates
and precise locations of the aggravated batteries committed by members of the Latin Kings
and Two-Six gangs.
¶ 98 Next, Salgado, unlike Hood, clarified that he did not feel that Sergeant Rivera had seized
him, as he continued walking past Rivera following Rivera’s initial question. Before the
seizure, Rivera saw Salgado reach towards a gun-shaped bulge at Salgado’s waistband. Id. ¶ 5.
Few people carry gun-shaped objects other than guns in their waistbands. Many people reach
for many different kinds of objects on the floors of their cars. By reaching for the object in his
waistband, in an area where several incidents with firearms had recently occurred, Salgado
gave Rivera grounds for a Terry stop. Hood, by reaching towards the floor of his car while
parked in a Black neighborhood, did not give police here grounds to believe they saw criminal
activity. Police in Salgado had grounds for the Terry stop of Salgado; police here did not have
grounds for a Terry stop of Hood.
¶ 99 If there is a hand-to-hand transaction or a robbery in progress, the police should conduct
an investigatory stop because no law-abiding residents want drugs to be sold or a robbery to
occur in their community. Police have a difficult time fighting crime. However, police cannot
diminish constitutional protections in underprivileged communities. The phrases “high
narcotic area” and “high crime area” became popular years ago when most lawmakers and
judges believed it was lawful to separate communities based on race and class. The paradigm
has shifted, and it is now inappropriate to police underprivileged communities with fewer
constitutional protections and disregard for lives and liberties.
¶ 100 The majority seems to hold that people in so-called high crime or high narcotic areas cannot
walk around with United States currency in their hands, but people in “low crime” or “low
narcotic” areas are free to walk the street with cash in hand. I disagree with the majority. I
agree with the United States Court of Appeals for the Seventh Circuit when the court found
- 18 -
that holding one’s hands in a pocket should not be grounds for a search, even if it occurs at
night in a high-crime area. We cannot support a rule that seemingly would allow all those
people who typically spend time in “low crime” areas (read: more affluent areas of town) to
walk around with hands pocketed at night while not being subject to search, while depriving
people in higher crime areas of that same ability. I would find that a “high narcotic area” and
a “high crime area” are inappropriate factors to conduct an investigatory stop under article I,
section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6). These destructive labels
should be repudiated and abandoned because they reduce constitutional protections in certain
communities.
¶ 101 Under the totality of the circumstances, the officers did not have the reasonable, articulable
suspicion of criminal activity needed to justify an investigatory stop. See Harris, 2011 IL App
(1st) 103382, ¶ 17; Mills, 115 Ill. App. 3d at 815. In Illinois, the reputation for criminal activity
in certain areas should not be imputed to an individual. The investigatory stop in this case
violates article I, section 6, of the Illinois Constitution, which prohibits unreasonable searches
and seizures.
¶ 102 Finally, the majority contends that defense counsel actually challenged the validity of the
Terry stop. The majority quotes the Motion to Suppress Physical Evidence: “[T]he arrest,
search and seizure were made in violation of the defendant’s right under the Fourth
Amendment.” The majority implies that “seizure” in the motion refers to the Terry stop of
Hood.
¶ 103 The motion says:
“[P]olice officers *** , without lawful authority, seized certain *** evidence which
might tend to incriminate the accused.
*** [T]he accused has a possessory or other valid property interest in the area
search[ed] from which the aforementioned items [were] seized.
*** [T]he seizure of said items was without lawful authority for one or more of the
following reasons:
a. at the time of the arrest, the accused was not violating any Federal, State or Local
Law and there existed no probable cause to make the arrest, search or seizure
complained of;
b. the arrest, search and seizure complained of was made without any warrant or
any authority whatsoever;
c. while probable cause may have existed to make the arrest, search and seizure
complained of, there existed no exigent circumstances which excused proceeding
without first obtaining a warrant;
d. no consent was given for the arrest, search and seizure complained of;
***
f. The arrest, search and seizure were made in violation of the defendant’s right
under the Fourth Amendment ***;
g. The search and seizure complained of was not incident to nor contemporaneous
with the valid arrest of petitioner.”
¶ 104 “Seizure” in the motion unequivocally refers to the seizure of the gun found in Hood’s car
at the time of the arrest. It does not refer to the seizure of Hood prior to the arrest, when police
blocked Hood’s car and jogged up to both sides of Hood’s car with guns drawn. As the State
- 19 -
correctly observes in its brief, “trial counsel argued only that police lacked probable cause to
arrest defendant and/or search his vehicle. [Citations.] Defendant’s failure to argue that he was
improperly subjected to a Terry stop constitutes a forfeiture of the argument.” The majority’s
tortured misconstruction of defense counsel’s motion does not change counsel’s error,
amounting to ineffective assistance, of failing to challenge the Terry stop.
¶ 105 The motion to suppress that counsel failed to present had merit. See People v. Surles, 2011
IL App (1st) 100068, ¶ 41. Mr. Hood has shown that his trial counsel provided ineffective
assistance by failing to file the motion. Had his counsel done so, the law supports the
suppression of the essential evidence against Mr. Hood.
¶ 106 Notwithstanding the neighborhood, United States currency in Mr. Steward’s hand cannot
justify an investigatory stop, and Mr. Hood received ineffective assistance of counsel.
Therefore, I respectfully dissent.
- 20 -