                                  Illinois Official Reports

                                          Appellate Court



                               People v. Fox, 2014 IL App (2d) 130320




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      EVAN A. FOX, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-13-0320


Filed                        May 23, 2014


Held                         Defendant’s burglary conviction and sentence were vacated, the
(Note: This syllabus         denial of his motion to suppress evidence in an improper search was
constitutes no part of the   vacated and the cause was remanded for a new trial where the mere
opinion of the court but     fact that defendant and his companion matched the description of the
has been prepared by the     suspects in a recent burglary of a nearby shop did not justify the
Reporter of Decisions        expansion of the temporary detention of the two to include a search,
for the convenience of       since Terry provides that a search is justified only if the officer has a
the reader.)
                             reasonable belief that the person is armed and presently dangerous to
                             the officer or others, and in defendant’s case, although the officer who
                             first encountered defendant and his companion was alone, he had the
                             support of several other officers in a matter of a few seconds, neither
                             defendant nor his companion engaged in any unusual or suspicious
                             behavior, and in the absence of such behavior, the fact that the
                             encounter occurred at night and the officer’s subjective opinion were
                             not factors.



Decision Under               Appeal from the Circuit Court of Kane County, No. 11-CF-1461; the
Review                       Hon. James C. Hallock, Judge, presiding.


Judgment                     Judgment vacated; order reversed; cause remanded.
     Counsel on              Daniel P. Cummings, of Law Offices of Daniel P. Cummings, of
     Appeal                  Naperville, for appellant.

                             Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                             Bauer and Colleen P. Price, both of State’s Attorneys Appellate
                             Prosecutor’s Office, of counsel), for the People.




     Panel                   JUSTICE BIRKETT delivered the judgment of the court, with
                             opinion.
                             Justices Zenoff and Jorgensen concurred in the judgment and opinion.




                                              OPINION

¶1         Defendant, Evan A. Fox, appeals from his convictions of burglary (720 ILCS 5/19-1(a)
       (West 2010)), retail theft (720 ILCS 5/16A-3(a) (West 2010)), and criminal damage to
       property (720 ILCS 5/21-1(1)(a) (West 2010)). Following the guilty finding, defendant was
       sentenced to probation for 48 months. He asserts that the trial court erred in admitting
       evidence obtained from an improper search. Because no articulable facts existed at the time
       of the stop to support the belief that defendant was then armed and dangerous, we hold that
       the search violated defendant’s constitutional rights and that the evidence should not have
       been admitted. Therefore, we reverse and remand for further proceedings.

¶2                                         I. BACKGROUND
¶3         Early in the morning of July 9, 2011, at approximately 1 a.m., Carpentersville police
       dispatch alerted officers on patrol about a reported burglary in progress at Buddeez, a local
       smoke shop. The dispatch also contained a description of two suspects believed to be
       responsible. Absent from the description was any mention of weapons or other information
       that would suggest that the suspects were armed and dangerous.
¶4         After receiving the dispatch, Officer Scott Blahnik cruised into a residential
       neighborhood, where, only a block away from the shop, he observed two individuals
       matching the descriptions of the suspects. Officer Blahnik radioed a nearby officer, Officer
       Giacomo Accomando, to alert him to the match and to suggest stopping to question them.
¶5         Officer Accomando made contact with the suspects while Officer Blahnik turned his
       vehicle around. Officer Accomando ordered them to stop and both suspects quickly complied
       with his order. Officer Accomando ordered both suspects to place their hands on his vehicle,
       and both suspects complied. During this time, Officers Blahnik, Ramos, and Crowe arrived
       on the scene, within 30 seconds of Officer Accomando.
¶6         As Officer Accomando was preparing to frisk the first suspect, he also directed Officer
       Crowe to frisk defendant. Before patting him down, Officer Crowe asked defendant if he was

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       carrying any weapons or dangerous items. Defendant said that he was not. Officer Crowe
       then frisked defendant. Defendant did not expressly consent to the search, but he did
       acquiesce to it.
¶7         Officer Crowe testified that, as he was conducting the frisk, he saw bulging from
       defendant’s pocket, purportedly in plain sight, what he believed to be marijuana in a clear
       plastic jar. Upon removing the jar, Officer Crowe noticed other items, which appeared to
       belong to the shop. Defendant was then placed under arrest.
¶8         Defendant filed a pretrial motion to quash his arrest and suppress the evidence, on the
       ground that the search was unreasonable. The trial court denied the motion, holding that
       defendant had not made a sufficient showing that the stop or the search was improper.
       Specifically, the trial court held that “it was reasonable for [the officers] to believe that the
       defendant may be armed, reasonable for the officers to conclude there may be weapons on
       the defendant.” The trial court included nothing more specific in its reasoning. At the ensuing
       bench trial, the shop owner testified that, in the course of the burglary of his shop, a window
       had been broken, presumably to allow the offenders to enter the shop. Ultimately, defendant
       was found guilty of burglary. Defendant timely appeals.

¶9                                              II. ANALYSIS
¶ 10        On appeal, defendant argues that the trial court erred in denying his motion to quash his
       arrest and suppress the evidence. Defendant contends that a proper analysis of the appropriate
       factors shows that there could not have been a reasonable belief that he presented a danger to
       the officers or to others. In addition, defendant contends that, to the extent that the trial court
       implicitly found that Officer Accomando was outnumbered (which the officer used as a
       justification for the search), that finding was against the manifest weight of the evidence.
¶ 11        A trial court’s ruling on a motion to quash an arrest and suppress evidence presents a
       mixed question of law and fact, and it requires a bifurcated standard of review. People v. Lee,
       214 Ill. 2d 476, 483 (2005). Findings of fact made by the trial court are given deference and
       will not be disturbed unless they are against the manifest weight of the evidence. Id.
       However, the ultimate issue (i.e., the application of the law to the established facts) is subject
       to de novo review. Id. at 483-84.
¶ 12        An individual’s right to be free from unreasonable searches and seizures derives from
       both the federal and Illinois constitutions. U.S. Const., amend. IV and XIV; Ill. Const. 1970,
       art. I, § 6. When an officer has reason to believe that a crime has been, or is about to be,
       committed, he may temporarily detain an individual to investigate without violating this
       right. Terry v. Ohio, 392 U.S. 1, 27 (1968); People v. Sorenson, 196 Ill. 2d 425, 432 (2001).
       During a proper temporary detention, the officer may search the suspect for weapons if there
       is reasonable and articulable suspicion that the suspect is armed and is presently dangerous to
       the officer or to other persons. Sorenson, 196 Ill. 2d at 432. This holding has been codified
       into the Code of Criminal Procedure of 1963 (Code) (see 725 ILCS 5/107-14, 108-1.01
       (West 2010)).
¶ 13        Thus, even if a temporary detention is justified, that fact alone does not give an officer an
       automatic right to conduct a search. People v. Flowers, 179 Ill. 2d 257, 263 (1997). A search
       is proper only if the officer reasonably believes that “ ‘the individual whose suspicious
       behavior he is investigating at close range is armed and presently dangerous to the officer or


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       to others.’ ” Id. (quoting Terry, 392 U.S. at 24). This is an objective standard that is satisfied
       if, in light of the totality of the circumstances, a reasonably prudent person in that situation
       would believe that his or her safety or the safety of others is in danger. People v. Davis, 352
       Ill. App. 3d 576, 580 (2004). Likewise, the sole fact that a person has been properly detained
       as a suspect in a crime such as burglary does not automatically grant an officer the right to
       conduct a search. People v. Galvin, 127 Ill. 2d 153, 173 (1989). Such an intrusion must be
       justified by the reasonable belief that the suspect is presently dangerous. Flowers, 179 Ill. 2d
       at 263; Davis, 352 Ill. App. 3d at 580. If a search is performed where there is no reasonable
       belief that the suspect is dangerous, any evidence seized during the search is inadmissible.
       People v. Henderson, 2013 IL 114040, ¶ 33. With these principles in mind, we turn to the
       facts of this case.
¶ 14        Initially, we note that defendant has conceded that the initial stop was valid. Reviewing
       the record, we agree that defendant’s initial stop was justified. Therefore, we turn to the issue
       of whether the search of defendant was proper.
¶ 15        As a first step, we address whether Officer Accomando was outnumbered when
       defendant was frisked. The question of whether officers are outnumbered goes to the
       determination of officer safety, is an important consideration in the totality of the
       circumstances, and is measured from the point of the search. See People v. Moss, 217 Ill. 2d
       511, 530-31 (2005) (another officer arrived before the defendant was searched, but this did
       not change the fact that, at the time of the search, the officers remained outnumbered by the
       occupants of the car). Additionally, as noted above, we review a factual finding to determine
       whether it is against the manifest weight of the evidence. Lee, 214 Ill. 2d at 483. During the
       suppression hearing, the trial court heard testimony about the manner in which the officers
       responded to the dispatch and investigated the two suspects. To the extent that the trial court
       made the implicit finding that Officer Accomando was alone when defendant was frisked, it
       is against the manifest weight of the evidence.
¶ 16        The record shows that Officer Accomando was alone when he first approached the two
       suspects. While he was securing the scene and preparing to search the first suspect, Officers
       Crowe, Ramos, and Blahnik arrived on the scene. At the direction of Officer Accomando,
       Officer Crowe searched defendant. Although the record is not entirely clear on whether
       Officer Accomando began the search of the first suspect before the other officers arrived, the
       record shows that the other officers all arrived prior to the search of defendant. Because the
       record shows that four officers were on the scene prior to the search of defendant, any factual
       finding that Officer Accomando was outnumbered is against the manifest weight of the
       evidence. Id. Because the officers were not outnumbered, the trial court could not properly
       rely on this factor to support the search of defendant.
¶ 17        In addition, nothing in the behavior of defendant or the other suspect gave rise to a
       reasonable suspicion that they were armed and dangerous. At the suppression hearing,
       Officer Accomando testified that he saw one of the suspects look around, which he believed
       showed that suspect’s intent to flee. Officer Accomando testified that, upon seeing this
       glance, he “sprinted” to the suspects to prevent flight. Neither suspect undertook any further
       action that suggested flight. Instead, both suspects promptly complied with all orders and
       followed Officer Accomando to his vehicle, where they then placed their hands on the hood
       of his vehicle.


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¶ 18       According to Officer Blahnik’s testimony, he and the other officers arrived on the scene
       20 to 30 seconds after Officer Accomando. Even though the record is unclear on how long it
       took Officer Accomando to bring the suspects to his vehicle, it is reasonable to infer that
       confronting the suspects and bringing them to his vehicle consumed the moments before the
       arrival of the other officers. Once the suspects were positioned with their hands on the hood
       of his car, Officer Accomando felt comfortable enough to focus on the first suspect and
       conduct the first search, which suggests that Officer Accomando was not actually in fear that
       the suspects were presently dangerous. Even if Officer Accomando subjectively believed that
       one of the suspects was considering flight, the singular glance by that suspect did not justify
       the search of defendant, especially because both defendant’s and the first suspect’s
       subsequent conduct of obeying the officer’s orders belied any intention to flee, and the trial
       court could not reasonably rely on a perceived flight risk to support the search of defendant.
¶ 19       In any event, a risk of flight does not support a search even though it might support a
       stop. The appropriateness of a stop and a search are separate inquiries. Galvin, 127 Ill. 2d at
       163. In other words, evidence justifying a stop will not necessarily justify a search. Id. The
       purpose of a search is not to collect evidence, but rather to protect officers from a dangerous
       situation. Flowers, 179 Ill. 2d at 263. Although the State argues that the risk of flight by one
       of the suspects should be a factor in determining whether the search of defendant was
       appropriate, it provides no authority to support this assertion. Similarly, our research
       disclosed no case in which a court considered a suspect’s risk of flight as a factor in
       determining the reasonableness of a search. Viewed logically, the risk of a suspect’s flight
       cannot factor into the inquiry of whether a search was appropriate, because flight would not
       suggest that the suspect is armed and dangerous. Because a suspect’s potential to flee has no
       connection to the level of danger he or she poses, the risk of flight is irrelevant to the
       propriety of a protective search.
¶ 20       The State argues that the officers’ safety was in danger because the search occurred at
       night. However, the State, again, fails to cite authority to support the proposition that the time
       of day is a factor to be considered in determining the propriety of a protective search. In our
       own research, we uncovered two decisions, not cited by either party, that considered the time
       of day in determining the propriety of a protective search. In People v. Day, 202 Ill. App. 3d
       536, 539 (1990), an officer stopped a car, occupied by four young males, for a speeding
       violation. When the officer approached the vehicle, the defendant exited the vehicle, and the
       officer observed the other passengers “ ‘jumping around,’ ” with the front right-seat
       passenger leaning over. Id. The court held that, in light of the suspicious movements by the
       defendant and the other passengers, the fact that the stop occurred at night was relevant to the
       propriety of the search. Id. at 541. We note, however, that the officer felt unsafe because of
       the suspicious movements, the fact that the defendant exited the car unbidden, and the fact
       that the officer was outnumbered, all of which were objective facts supporting the propriety
       of the search. Id. In People v. Moore, 341 Ill. App. 3d 804, 806 (2003), an officer stopped a
       car because the defendant was driving at a high rate of speed on the wrong side of the road.
       During the stop, he observed that the defendant was nervous and that the passengers were
       fumbling around inside the car, as if they were trying to hide something. Id. The court
       determined that, based on the defendant’s reckless driving, the defendant’s nervous behavior
       and lack of identification, the passengers’ furtive and fumbling movements, the fact that the



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       officer was outnumbered, and the time of day, the search for weapons was not unreasonable.
       Id. at 811.
¶ 21        In both cases, the time of day was considered to be a factor in the reasonableness of the
       search, but its relevance was unexplained. In our view, and in light of the paucity of cases
       considering the time of day, this factor arises only in conjunction with an already potentially
       dangerous situation, such as where the officer is outnumbered or the suspects are making
       furtive motions that could be consistent with holding a weapon or another dangerous object.
       In other words, standing alone, the time of day cannot justify a protective search (because, if
       it could, then any search undertaken at night would be justified, even if there were no other
       facts that suggested that the suspect was presently dangerous). Accordingly, we find Day and
       Moore to be distinguishable. In this case, neither defendant nor the first suspect made any
       suspicious movements. There was no information suggesting that they were armed and
       presently dangerous. Indeed, their compliance with Officer Accomando’s orders minimized
       the danger in the situation. While the time of day might increase the inherent danger in a
       situation, the time of day, standing alone, does not render a suspect presently dangerous.
       Here, the State is suggesting that the time of day when the suspects were encountered
       established the existence of a dangerous situation. However, by doing so, the State is
       effectively arguing (and, we continue to note, without supporting authority) that anybody
       who was outside after dark could reasonably be expected to be carrying a weapon. The
       State’s argument sweeps too wide and we reject it. Further, even if the time of day were a
       factor, it was minor here and overshadowed by defendant’s (and the other suspect’s) fully
       compliant conduct.
¶ 22        The State also contends that Officer Accomando’s experiences and subjective opinion
       support the appropriateness of the search. We agree that the officer’s experiences and
       subjective opinion are both relevant; nevertheless, they must be used to demonstrate that a
       defendant was presently dangerous to the officer or others, based upon specific, articulable
       facts. Galvin, 127 Ill. 2d at 168. Officer Accomando testified that, in his 13 years of
       experience, burglars tended to carry weapons. Based on the nature of the suspected crime,
       Officer Accomando concluded that defendant was likely to be carrying a weapon. While the
       trial court could consider this as a factor, it represented little more than a hunch. If Officer
       Accomando’s experiential inferences could justify the search, then any burglary suspect who
       is stopped would be subject to a search simply because he or she is a burglary suspect. We
       cannot accept this reasoning, because our supreme court has expressly rejected this proposed
       per se rule. Id. at 173. While an officer’s experiences and subjective opinion may be
       considered, they must be tied to some other, specific circumstance that justifies a reasonable,
       articulable suspicion of danger. See generally Galvin, 127 Ill. 2d 153.
¶ 23        The Seventh Circuit Court of Appeals faced a similar issue in a case not cited by the
       State. In United States v. Snow, 656 F.3d 498 (7th Cir. 2011), the court held that, when an
       officer reasonably suspects that a person has committed a burglary, a search is justified
       without additional information suggesting that the suspect is armed and dangerous. Simply
       put, under Snow, a search may be conducted during a proper Terry stop whenever a suspect is
       believed to have committed a burglary. See id. at 501. Further, “a suspect’s ‘cordiality’ and
       ‘cooperativeness’ upon being stopped for questioning do not undermine the possibility that
       he might be armed.” Id. We decline to adopt this holding, as it is inconsistent with Illinois
       law. See People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127 (2001)


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       (decisions of the lower federal courts are not binding on Illinois courts, though they may be
       persuasive authority). Indeed, our supreme court passed on this precise issue in Galvin, 127
       Ill. 2d at 173, and it declined to accept or promote the Seventh Circuit’s per se rule.
¶ 24        Although the stop was proper in this instance, it is a well-established point of law that a
       stop must cease once the reason for the stop has been settled. See People v. Cosby, 231 Ill. 2d
       262, 302 (2008) (citing Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion), and
       People v. Gherna, 203 Ill. 2d 165, 181-82 (2003)). Had the officers questioned defendant
       about the burglary immediately after stopping him, their inquiry might have revealed
       objective facts indicating that defendant was armed and dangerous, thus providing grounds
       for a search. However, if the questioning alleviated the basis for the stop, the officers would
       have been obligated to immediately release defendant. See generally Cosby, 231 Ill. 2d 262.
¶ 25        A suspect may be properly searched only when there is a reasonable suspicion that he or
       she is presently dangerous to the officer or to others. Flowers, 179 Ill. 2d at 263. This rule
       presents an objective test that can be fulfilled only by specific, articulable circumstances.
       Davis, 352 Ill. App. 3d at 580. Despite the objectiveness of the test, the officer’s subjective
       beliefs and experiences may be taken into account. Here, Officer Accomando believed that,
       because defendant was a burglary suspect, he was properly subject to a search, because
       burglary suspects are sometimes armed. Officer Accomando also pointed to the facts that he
       was by himself when he encountered and stopped both suspects, that the first suspect glanced
       about as if he would flee, and that it was at night. In other words, Officer Accomando could
       point to no facts that suggested that defendant was armed and presently dangerous. Looking
       at these facts, we note that, while the risk of flight might further justify the initial stop, it does
       not justify the search, since no relationship exists between flight and the possibility of being
       armed. The time of day might offer support for a search in that it can serve to enhance the
       danger of a situation, but it alone does not establish the situation as dangerous. See generally
       Moore, 341 Ill. App. 3d 804; Day, 202 Ill. App. 3d 536. Acceding to the State’s argument
       that the search was proper because of the type of crime and the time of the stop would be to
       effectively adopt a rule allowing the automatic search of any burglary suspect so long as the
       encounter occurs at night. This type of per se rule has been previously rejected. See Galvin,
       127 Ill. 2d at 173. Similarly, even viewing the circumstances in light of Officer Accomando’s
       prior experiences, the only objective facts present are that the suspected offense was a
       burglary and that the stop occurred at night. Although the trial revealed that there was a
       broken window at the shop, the officers had no specific information to suggest that the
       window was broken by a weapon carried by a suspect. In the absence of specific information
       suggesting that defendant was dangerous at the time of the stop, we cannot conclude that the
       search was reasonable.
¶ 26        Accordingly, in light of the totality of the circumstances, we conclude that the search was
       improper and that the evidence from the search should not have been admitted at trial.
¶ 27        Having held that defendant was improperly searched, we now turn to what relief should
       be granted. Defendant requests only that we reverse the conviction and remand for a new
       trial; defendant does not request an outright reversal. Defendant’s request for relief is not
       dispositive, and in considering the relief we must first determine whether a retrial would
       violate defendant’s right to be free from double jeopardy. See People v. Jenkins, 2012 IL App
       (2d) 091168, ¶ 25 (citing People v. Taylor, 76 Ill. 2d 289, 309 (1979)).


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¶ 28       Both the federal and Illinois constitutions prohibit twice placing a person in jeopardy for
       the same criminal offense. People v. Pinkonsly, 207 Ill. 2d 555, 564-65 (2003) (citing U.S.
       Const., amends. V, XIV; Ill. Const. 1970, art. I, § 10). Retrial is barred where the purpose is
       to afford the State an opportunity to supply evidence that it had previously failed to present,
       e.g., when a conviction is reversed for evidentiary insufficiency. People v. Lopez, 229 Ill. 2d
       322, 367 (2008). However, retrial does not offend the double jeopardy clause when a
       conviction is overturned due to trial error (such as improperly admitting evidence), as long as
       the evidence at trial was sufficient to sustain a conviction. People v. Olivera, 164 Ill. 2d 382,
       393 (1995); see also Lockhart v. Nelson, 488 U.S. 33, 40 (1988). “The relevant question to
       ask in reviewing the sufficiency of the evidence to support a criminal conviction is whether,
       after viewing the evidence in the light most favorable to the prosecution,” including both
       properly and erroneously admitted evidence, “any rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt.” Olivera, 164 Ill. 2d at 396.
¶ 29       At defendant’s trial, the owner of the burglarized shop testified that the burglars stole jars
       containing incense. To connect defendant to the burglary, the State admitted into evidence
       the plastic jars that were recovered during the improper search of defendant. These recovered
       jars matched the description of the stolen jars and contained items that matched those that
       were stolen. Furthermore, testimony placed defendant in close proximity to the shop shortly
       after the burglary, while he possessed the clear plastic jars. Finally, the officers who initially
       stopped defendant testified that defendant was sweaty, as if he had recently been running.
       Based on this evidence, we conclude that a rational finder of fact could have found defendant
       guilty beyond a reasonable doubt. Accordingly, there is no double jeopardy issue that would
       bar a new trial. Lopez, 229 Ill. 2d at 368.

¶ 30                                     III. CONCLUSION
¶ 31       In summary, then, we hold that the search was improper and that the evidence obtained
       during the search should not have been admitted at trial. We also hold that the evidence in the
       record was sufficient to support a finding of guilt beyond a reasonable doubt, so there is no
       double jeopardy concern raised by the prospect of a retrial. Therefore, we vacate the trial
       court’s judgment of conviction and sentence, reverse its denial of the suppression motion,
       and remand the cause for a new trial.

¶ 32      Judgment vacated; order reversed; cause remanded.




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