                               Illinois Official Reports

                                       Appellate Court



                          People v. Claypool, 2014 IL App (3d) 120468



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   TERRANCE D. CLAYPOOL, Defendant-Appellant.



District & No.            Third District
                          Docket No. 3-12-0468


Rule 23 Order filed       October 2, 2014
Motion to publish
allowed                   October 30, 2014
Opinion filed             October 30, 2014


Held                       The denial of defendant’s motion to suppress the cocaine discovered
(Note: This syllabus following a Terry stop and frisk was affirmed on appeal, where a
constitutes no part of the police officer observed defendant just before 1 a.m. in an area where
opinion of the court but burglaries were not uncommon, the man was trying the handles of a
has been prepared by the vehicle parked on the street, and during the struggle that ensued when
Reporter of Decisions the officer confronted him, the man ran away, but after the officer
for the convenience of alerted other officers and caught the man, he spit a white object out of
the reader.)               his mouth and pushed it into a storm drain, and after the object was
                           recovered, it was identified as cocaine, and under those circumstances,
                           it was reasonable for the officer to believe defendant had committed or
                           was about to commit a burglary and to suspect that he was in danger of
                           attack.



Decision Under            Appeal from the Circuit Court of Kankakee County, No. 11-CF-64;
Review                    the Hon. Clark E. Erickson, Judge, presiding.
     Judgment                  Affirmed.


     Counsel on                Michael J. Pelletier and Kieran M. Wiberg (argued), both of State
     Appeal                    Appellate Defender’s Office, of Chicago, for appellant.

                               Jamie J. Boyd, State’s Attorney, of Kankakee (Thomas D. Arado
                               (argued), of State’s Attorneys Appellate Prosecutor’s Office, of
                               counsel), for the People.



     Panel                     JUSTICE McDADE delivered the judgment of the court, with
                               opinion.
                               Justice Holdridge specially concurred, with opinion.
                               Justice Schmidt specially concurred, with opinion.


                                                OPINION

¶1         Defendant, Terrance D. Claypool, appeals from the circuit court’s order denying his
       motion to suppress. Defendant argues his motion to suppress should have been granted
       because the police officer “lacked reasonable suspicion to seize him and order him to submit to
       a pat-down search.” We affirm.

¶2                                                 FACTS
¶3         Defendant was seized by Chris Benoit of the Kankakee police department in the early
       morning (12:48 a.m.) of January 30, 2011. Benoit ordered defendant to submit to a pat-down
       search and a struggle ensued. When defendant was taken into custody a short time later, police
       found 7.8 grams of cocaine in a nearby storm drain, which Benoit testified defendant spit out of
       his mouth and pushed into the drain. As a result of this encounter, defendant was charged with
       possession of a controlled substance with intent to deliver. Defendant was convicted and
       sentenced to 15 years’ imprisonment.
¶4         Prior to trial, defendant filed a motion to suppress. Defendant and Benoit both testified at
       the hearing on defendant’s motion. Both parties acknowledge, however, here on appeal that
       Benoit’s testimony is the only reliable testimony due to the fact that defendant previously
       admitted that he perjured himself with regard to his testimony at the suppression hearing. Thus,
       our discussion is limited to Benoit’s testimony.
¶5         Benoit testified that he was in his squad car when he saw a man, approximately a block
       ahead of him, who appeared confused. Benoit identified defendant as that man. Defendant was
       standing in the street looking into the driver’s side of a parked vehicle and trying the handles of
       the vehicle. Benoit thought defendant was attempting to access the vehicle but he did not
       believe defendant’s behavior was suspicious because he thought defendant might be locked
       out of the vehicle. There were no other vehicles parked in the immediate area.

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¶6         After attempting to gain access to the vehicle’s trunk, defendant made no effort, with or
       without tools, to forcibly enter the car. Instead, he simply walked away from the vehicle. He
       did not, however, go into the residence directly north of where the car was parked but, rather,
       continued walking. Once defendant passed the house, Benoit became suspicious as car
       burglaries were not uncommon in the area.
¶7         Benoit began to follow defendant and saw him turn and look in his direction, at which point
       defendant appeared to slightly change direction and walk down an alley. Benoit stopped his
       squad, stepped out and called out for defendant to “hold on a second.” Defendant turned and
       leaned forward, as if to run, and fell down.
¶8         Benoit jogged over to defendant and helped him stand. Benoit testified that when he
       approached defendant he believed defendant had been “attempting to illegally gain entry to the
       vehicle.” Benoit asked defendant if he was trying to run and defendant responded that he had
       just slipped on some ice. Benoit testified this explanation was “plausible.” Benoit did not
       inquire as to defendant’s actions regarding the vehicle he saw defendant attempting to access.
       Instead, Benoit “escorted” defendant to the squad car and ordered him to place both hands on
       the hood of the car so that Benoit could pat him down for “[w]eapons or possibly burglary
       tools.” Benoit stated that it would not be unexpected to find people who break into cars having
       some burglary tools or screwdrivers that could be used as a weapon.
¶9         Defendant put his right hand on the hood of the squad car but kept his left hand near his
       waist. Benoit again ordered defendant to place both hands on the hood of the squad. Instead of
       complying, defendant began to move his right hand off the squad and toward his waist. Benoit
       thought defendant was reaching for a gun in his waistband. A struggle ensued, during which
       defendant slipped out of his jacket and ran away. Benoit testified there was not much time
       between when he helped defendant up in the alley and when defendant fled. Benoit alerted
       other officers, then caught up with defendant and took him into custody. As he did so, he saw
       defendant spit a whitish object out of his mouth and push it into a nearby storm drain. Such an
       object was recovered by another officer and was ultimately identified as 7.8 grams of cocaine.
¶ 10       On cross-examination, Benoit indicated he did not demand an explanation of defendant’s
       attempts to access the vehicle because there was not time between helping defendant up and
       escorting him to the squad car. Benoit stated that “based on all the actions that I had observed,
       I thought he might possibly have burglary tools or possibly a weapon or something that could
       be used as a weapon.”
¶ 11       Defendant was not charged with attempted burglary and no burglary tools or other possible
       weapons were found in his possession. He was instead charged with drug possession with
       intent to deliver. He moved to suppress the drugs found as a result of the Terry stop and frisk–a
       motion that the circuit court ultimately denied. The matter proceeded to trial and defendant was
       convicted and sentenced to 15 years’ imprisonment. Defendant appeals the denial of his
       motion to suppress.

¶ 12                                          ANALYSIS
¶ 13       Defendant argues his motion to suppress should have been granted because “Benoit lacked
       reasonable suspicion to seize him and order him to submit to a pat-down search.” We disagree.
¶ 14       We review a trial court’s ruling on a motion to suppress evidence pursuant to a two-part
       test. People v. Absher, 242 Ill. 2d 77, 82 (2011). First, we will uphold the court’s factual


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       findings unless they are against the manifest weight of the evidence. Absher, 242 Ill. 2d at 82.
       Second, we assess the established facts in relation to the issues presented and review the
       ultimate legal question of whether suppression is warranted de novo. Absher, 242 Ill. 2d at 82.
¶ 15        In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court provided an exception to the
       warrant and probable cause requirements. “Under Terry, a police officer may conduct a brief,
       investigatory stop of a person where the officer reasonably believes that the person has
       committed, or is about to commit, a crime.” People v. Close, 238 Ill. 2d 497, 505 (2010). In
       Illinois, the “Terry stop” has been codified under section 107-14 of the Code of Criminal
       Procedure of 1963 (Code), as follows:
                “A peace officer, after having identified himself as a peace officer, may stop any
                person in a public place for a reasonable period of time when the officer reasonably
                infers from the circumstances that the person is committing, is about to commit or has
                committed an offense *** and may demand the name and address of the person and an
                explanation of his actions. Such detention and temporary questioning will be
                conducted in the vicinity of where the person was stopped.” 725 ILCS 5/107-14 (West
                2010).
¶ 16        Additionally, under Terry, “if the officer reasonably believes that the person questioned
       may be armed and dangerous, the officer may conduct a limited pat down search for weapons,
       commonly called a frisk.” People v. Love, 199 Ill. 2d 269, 275 (2002). The “Terry frisk” has
       also been codified in Illinois under section 108-1.01 of the Code, as follows:
                “When a peace officer has stopped a person for temporary questioning pursuant to
                Section 107-14 of this Code and reasonably suspects that he or another is in danger of
                attack, he may search the person for weapons.” 725 ILCS 5/108-1.01 (West 2010).
¶ 17        The only questions before us are: (1) whether it was reasonable for Benoit to infer that
       defendant had committed or was about to commit a burglary; and, if so, (2) whether it was
       reasonable for Benoit to suspect that he was in danger of attack upon stopping defendant.
¶ 18        We believe it was reasonable for Benoit to infer that defendant had committed or was about
       to commit a burglary. Benoit observed defendant attempting to gain access to a vehicle at
       12:48 a.m. in an area where burglaries were not uncommon. Defendant checked the door
       handles of the vehicle, stepped back, looked around, and then checked the handles again, along
       with the vehicle’s trunk handle. No other vehicles were in the area. Although Benoit initially
       thought defendant may have been locked out of the vehicle, his suspicions were heightened
       when defendant walked past the residence where the vehicle was parked. When defendant saw
       Benoit, defendant changed direction and headed down an alley. While defendant may have
       simply fallen on ice when Benoit subsequently told him to “hold on a second,” it is just as
       “plausible” that defendant was in fact attempting to run. Benoit expressly testified that when he
       approached defendant he believed defendant had been “attempting to illegally gain entry to the
       vehicle.” Based on the totality of the circumstances, a Terry investigatory stop was justified.
¶ 19        We also believe it was reasonable for Benoit to suspect that he was in danger of attack upon
       stopping defendant. Benoit testified he conducted a “Terry frisk” for “[w]eapons or possibly
       burglary tools.” Benoit explained that it would not be unexpected to find people who break into
       cars having some burglary tools or screwdrivers that could be used as a weapon. Likewise, it is
       also not unreasonable to suspect that a burglar could have a knife or firearm concealed on his
       person. While defendant argues that Benoit could have simply asked defendant what he was
       doing at the vehicle, as opposed to “escorting” him back to the squad car, we note that Benoit

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       testified there was not much time between when he helped defendant up and when defendant
       fled. We do not believe Benoit unreasonably prolonged the stop. Moreover, because the belief
       that defendant may have been armed was reasonable, Benoit had the right to conduct a “Terry
       frisk.” Benoit’s right to conduct such a frisk does not stem from any potential discussion with
       defendant. Instead, it stems from the fact that the totality of the circumstances created a
       reasonable inference that defendant may have been involved in a burglary and therefore may
       have been carrying knife, firearm or other burglary tool that could have been used as a weapon.
¶ 20       The above conclusion is supported by the holding in People v. McGowan, 69 Ill. 2d 73
       (1977). The McGowan court upheld a “Terry stop” and “Terry frisk” based upon an officer’s
       testimony that he suspected the defendant to have been an armed burglar. The police officer
       saw the defendant and his companion dressed in black, at 12:50 a.m., in a deserted commercial
       and industrial area that had been plagued by burglaries. There was only one establishment open
       in the area and that was a tavern that was due to close at 1 a.m., 10 minutes after the defendant
       and his companion were spotted. These were the only facts analyzed with regard to the
       viability of the stop and frisk. The supreme court held:
                “Thus, while it is possible that the defendant and his companion were merely on their
                way to Penn’s Tavern to have a fast drink before closing time, we agree that it was
                much more likely that persons dressed in black, walking in the dead of night through an
                otherwise deserted commercial and industrial area which had been plagued by
                burglaries, had just committed or were about to commit a burglary. Under these
                circumstances, the suspects easily might have eluded the officers had the officers
                attempted to observe the two suspects further rather than stopping them immediately.
                Hence, we agree that [the officer’s] inference of an imminent or recent burglary was
                reasonable, and that stopping the defendant therefore was reasonable under the
                circumstances.” McGowan, 69 Ill. 2d at 78-79.
¶ 21       The court further held:
                    “We also hold that it was reasonable for [the police officer] to suspect that he and
                his partner were in danger of attack. It is not unlikely that a person engaged in stealing
                another person’s property would arm himself against the possibility that another person
                will appear unexpectedly and object strenuously. Thus, since we find [the officer’s]
                original suspicion to have been reasonable, we also find it reasonable for him to have
                concluded that the defendant was armed. It follows inevitably, we think, that it also was
                reasonable for [the officer] to assume that if the man he stopped were an armed burglar,
                he would not submit peacefully to questioning. Certainly [the officer] was not required
                to risk his life and that of his partner by assuming the contrary. [Citation.] The limited
                weapons search therefore also was reasonable.” McGowan, 69 Ill. 2d at 79.
¶ 22       Lastly, People v. Porter, 2014 IL App (3d) 120338, and People v. Kipfer, 356 Ill. App. 3d
       132 (2005), the cases relied upon by defendant, are distinguishable.
¶ 23       The Porter court determined that a police officer was not permitted to conduct a “Terry
       frisk” because the officer had no reason to believe that the defendant was armed and
       dangerous. Porter, 2014 IL App (3d) 120338, ¶ 16. The officer in Porter received a report of
       an offender wanted for a home invasion. The defendant matched the victim’s description and
       was seen leaving the crime scene. While the Porter court found that the “Terry stop” of
       defendant was valid in light of the above facts, it held the subsequent “Terry frisk” was
       improper because: (1) the officer did not articulate any reasons that would lead a reasonably

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       prudent person to believe his safety was in danger, and (2) the victim of the home invasion
       reported that the suspect had a cell phone, but did not report any weapon. Porter, 2014 IL App
       (3d) 120338, ¶ 16. Unlike the officer in Porter, Benoit specifically testified as to why he
       believed his safety was in danger–“It wouldn’t be unexpected to find some burglary tools or
       screwdrivers, that sort of thing, that could possibly be used as a weapon.” The McGowan court
       expressly upheld this reasoning. McGowan, 69 Ill. 2d at 79.
¶ 24       The Kipfer court found a police officer lacked reasonable articulable suspicion for a “Terry
       stop” when, at 3:30 a.m., he saw the defendant come out from behind a dumpster and walk
       through the parking lot of an apartment complex. Kipfer, 356 Ill. App. 3d at 140. Unlike the
       instant case, the defendant in Kipfer was not repeatedly attempting to gain access to a vehicle
       while looking around to see if anyone noticed. Moreover, the defendant did not immediately
       change direction and head into an alley when noticing a police presence. Finally, defendant did
       not attempt to possibly run when the officer asked him to stop.

¶ 25       For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 26       Affirmed.

¶ 27       JUSTICE HOLDRIDGE, specially concurring.
¶ 28       I concur in the judgment and I agree with the majority’s analysis regarding the “Terry
       stop.” I write separately to clarify the analysis governing the frisk issue. “[W]hen an officer is
       justified in believing that the individual whose suspicious behavior he is investigating at close
       range is armed and presently dangerous to the officer or others, the officer may conduct a
       pat-down search [or frisk] to determine whether the person is in fact carrying a weapon.”
       People v. Sorenson, 196 Ill. 2d 425, 432 (2001); see also People v. Porter, 2014 IL App (3d)
       120338, ¶ 15. The officer need not be absolutely certain that the individual is armed; the issue
       is “whether a reasonably prudent man in the circumstances would be warranted in the belief
       that his safety or that of others was in danger.” Sorenson, 196 Ill. 2d at 433; see also Porter,
       2014 IL App (3d) 120338, ¶ 15. In determining whether the officer acted reasonably in such
       circumstances, “due weight must be given to the specific reasonable inferences which he is
       entitled to draw from the facts in light of his experience.” Sorenson, 196 Ill. 2d at 433.
       However, the reasonableness of a frisk must be judged by all the particular facts and
       circumstances surrounding it, and “[e]ach case must stand or fall on its own set of concrete
       facts.” People v. Galvin, 127 Ill. 2d 153, 173-74 (1989). Accordingly, a frisk may not be
       justified by resort to a blanket legal presumption that all persons reasonably suspected of
       committing a burglary are armed and dangerous. Galvin, 127 Ill. 2d at 173; People v. Flowers,
       179 Ill. 2d 257, 269-70 (1997).1

           1
            Although there is language in People v. McGowan, 69 Ill. 2d 73, 79 (1977), that appears to support
       such a legal presumption, our supreme court categorically rejected such a presumption in Galvin.
       Moreover, the supreme court noted that McGowan had to be read in its factual context (which included
       the fact that the suspects were stopped shortly before 1 a.m. in an area that had “suffered a number of
       burglaries” (id. at 75)), and that, “[h]ad the factual context in McGowan been different, the
       reasonableness of the officer's conclusion [that the defendant was armed] might very well have been
       different.” Galvin, 127 Ill. 2d at 173.

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¶ 29       In this case, Officer Benoit testified that he stopped the defendant shortly before 1 a.m. in
       an area where burglaries were not uncommon. Based on the defendant’s behavior, Benoit
       reasonably suspected that the defendant was attempting to burglarize a parked car. Benoit was
       alone and on foot when he confronted and frisked the defendant. At the suppression hearing,
       Benoit testified that, based on his experience, “it wouldn’t be unexpected to find some burglary
       tools or screwdrivers [on the defendant] *** that could possibly be used as a weapon.”
       Considering all these facts, and giving due weight to the reasonable inferences that Benoit was
       entitled to draw based on his experience, I conclude that a reasonably prudent police officer in
       these circumstances would be warranted in the belief that his safety was in danger.
¶ 30       Justice McDade correctly observes that this case is distinguishable from Porter, wherein
       there was no police testimony or other evidence to support a reasonable inference that the
       suspect was armed and dangerous. The only evidence that could possibly support such an
       inference in Porter was the fact that the defendant was suspected of committing a home
       invasion. Our supreme court has made clear that such evidence, standing alone, is insufficient
       to justify a Terry frisk. Galvin, 127 Ill. 2d at 173. According to our supreme court, there must
       be additional facts suggesting that the suspect might be armed and dangerous or some other
       evidence suggesting that the police officer reasonably feared for his safety under the
       circumstances. Sorenson, 196 Ill. 2d at 437; Galvin, 127 Ill. 2d at 173-74. Because there was
       no such additional evidence in Porter, binding supreme court precedent required our appellate
       court to hold that the frisk in that case was unlawful. Thus, unlike Justice Schmidt, I believe
       that Porter was correctly decided under the law. However, because there was additional
       evidence in this case suggesting that Benoit reasonably feared for his safety, I agree with the
       majority that the frisk at issue here was legal and justified.
¶ 31       In any event, even if I were to conclude that both the stop and the frisk in this case were
       unlawful, I would still affirm the denial of the defendant’s suppression motion. While Benoit
       attempted to frisk the defendant, the defendant struggled with him, slipped out of his jacket,
       and ran away. As the defendant fled, Benoit saw a whitish object in the defendant’s hand.
       Benoit chased after the defendant and pushed him to the ground. As he did so, he saw the
       defendant spit the whitish object (later identified as cocaine) out of his mouth and push it into a
       nearby storm drain. Thus, Benoit discovered the cocaine during the defendant’s flight, not
       during the initial stop or frisk. The defendant’s flight “ended the seizure,” and “anything
       happening thereafter was, by its very nature, no longer tied to the initial stop.” (Internal
       quotation marks omitted.) People v. Henderson, 2013 IL 114040, ¶ 37. Put another way, the
       defendant’s flight interrupted the connection between any allegedly improper action by Benoit
       (which could not possibly be characterized as “flagrant”) and the discovery of the cocaine.
       Henderson, 2013 IL 114040, ¶ 50; see also People v. Keys, 375 Ill. App. 3d 459, 464 (2007)
       (affirming denial of defendant’s motion to suppress drugs discovered during his flight from
       police and reasoning that, even if the initial seizure and attempted pat-down of the defendant
       were unlawful, the drugs were not recovered through exploitation of that initial illegality but
       were discovered as a result of the defendant’s subsequent escape and abandonment of the
       drugs). Thus, even assuming arguendo that the initial stop and frisk were illegal, the defendant
       cannot show that the discovery of the cocaine was the product of those illegal acts (or the “fruit
       of the poisonous tree”) and thereby subject to the exclusionary rule. For this additional reason,
       I would affirm the trial court’s denial of the defendant’s motion to suppress.



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¶ 32      JUSTICE SCHMIDT, specially concurring.
¶ 33      I concur, but write separately simply to point out that I believe Porter was wrongly
       decided.




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