                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Harris, 2011 IL App (1st) 103382




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    DEREK HARRIS, Defendant-Appellee.



District & No.             First District, Fifth Division
                           Docket No. 1-10-3382


Filed                      September 2, 2011


Held                       In a prosecution for aggravated unlawful use of a weapon, defendant’s
(Note: This syllabus       motion to suppress the weapon discovered on his person was properly
constitutes no part of     granted, where the officer involved failed to provide specific and
the opinion of the court   articulable facts that would justify the Terry stop and there was no
but has been prepared      constitutional basis for the protective search performed.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CR-8569; the
Review                     Hon. James B. Linn, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal                      Veronica Calderon Malavia, Yvette Loizon, and Sebastian Soto, Assistant
                            State’s Attorneys, of counsel), for the People.

                            Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State
                            Appellate Defender’s Office, of Chicago, for appellee.


Panel                       PRESIDING JUSTICE EPSTEIN delivered the judgment of the court,
                            with opinion.
                            Justices Fitzgerald Smith and Howse concurred in the judgment and
                            opinion.




                                              OPINION

¶1           Defendant Derek Harris was arrested on April 23, 2010, and was charged with aggravated
        unlawful use of a weapon pursuant to sections 24-1.6(a)(1) and (a)(3)(A) of the Criminal
        Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)). Defendant moved to quash
        the arrest and suppress the weapon recovered by the police at the time of the arrest. After
        initially denying defendant’s motion, the trial court, on reconsideration, granted the motion
        to suppress the weapon. The State appeals that decision pursuant to Supreme Court Rules
        604(a)(1) and 606. Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2006); R. 606 (eff. Mar. 20, 2009). For
        the reasons stated below, we affirm.

¶2                                       BACKGROUND
¶3          Defendant was arrested for aggravated unlawful use of a weapon on April 23, 2010. On
        June 18, 2010, defendant filed a motion to quash his arrest and suppress all evidentiary
        products of that arrest, including a handgun recovered by the police during a protective
        search. Defendant argued that his seizure and arrest were made in violation of the fourth
        amendment to the United States Constitution. U.S. Const. amend IV. At the August 11, 2010,
        suppression hearing, the following evidence was adduced through the testimony of Chicago
        police officer Daniel Goon, the only witness presented.
¶4          On April 23, 2010, Officer Goon and his partner, Officer Doolin, were patrolling in the
        vicinity of 9126 South Oglesby Avenue, Chicago, Illinois, an area the State characterized as
        “one of high burglaries and high robberies.” They were in plain clothes and an unmarked
        vehicle. At approximately 9:30 p.m., Officer Goon observed defendant and another man
        walking in his direction. The men did not appear to be committing any crime, nor could the
        officers see that the men were armed. Officer Doolin began to drive toward the two men


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       who, according to Officer Goon, then looked in their direction and appeared to hide behind
       a car. The officers got out of their vehicle, announced their office, and approached the men
       for a field interview. Defendant and his companion then fled toward a nearby house, and
       Officers Goon and Doolin gave chase, eventually stopping the men on a porch. The officers
       performed a protective pat down search of the men, during which Officer Doolin felt an
       object on defendant that he believed to be a weapon. Defendant told Officer Doolin that the
       object was a gun. Officer Doolin then recovered a .22-caliber handgun from defendant and
       placed him and his companion under arrest.
¶5         After hearing this evidence, the trial court denied defendant’s motion to quash and
       suppress. The court found that Officer Goon’s testimony was credible and defendant’s flight
       from the police was “[t]he compelling thing” justifying the brief investigatory stop, despite
       the fact that Goon “may not be able to articulate what was going on, except that Mr. Harris
       was trying very hard to get away from the police.” On reconsideration, however, the trial
       court vacated its prior ruling and suppressed the weapon in light of Illinois v. Wardlow, 528
       U.S. 119 (2000), finding that defendant’s conduct was “neutral.” The State appeals,
       contending that the stop and search of defendant were justified because he attempted to evade
       the police in a high crime area. Defendant responds that the stop was unjustified because the
       police lacked reasonable suspicion that a crime was being committed, and the search was
       unjustified because the police had no reason to believe defendant was armed and dangerous.

¶6                                             ANALYSIS
¶7         The standard of review for evaluating a trial court’s decision on a motion to suppress
       evidence recovered during a warrantless “stop and frisk” is well established and uncontested.
                    “Generally, a trial court’s decision on a motion to suppress evidence is subject
               to reversal only if it is clearly or manifestly erroneous. [Citation.] This test is based
               on the understanding that suppression motions usually raise mixed questions of law
               and fact: a court first weighs the evidence and determines the facts surrounding the
               complained-of conduct, after which it decides whether, as a matter of law, these facts
               constitute unconstitutional seizure.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).
       The trial court’s application of law is reviewed de novo. People v. F.J., 315 Ill. App. 3d
       1053, 1056 (2000).
¶8         In this case, we are presented with two questions: (1) whether the investigatory stop of
       defendant was justified, and (2) whether the protective search of defendant was justified.
       These are distinct but related inquiries. “The fact that a police officer has reason to stop an
       individual does not necessarily mean that the additional intrusion of a search for weapons
       will also be warranted.” Id. at 1055. We will address each issue in turn.

¶9                                  I. The Investigatory Stop
¶ 10       The fourth amendment to the United States Constitution guarantees the “right of the
       people to be secure in their persons, houses, papers, and effects, against unreasonable
       searches and seizures.” U.S. Const., amend. IV. “This provision applies to all seizures of the


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       person, including seizures that involve only a brief detention short of traditional arrest.”
       Thomas, 198 Ill. 2d at 108. “Reasonableness under the fourth amendment generally requires
       a warrant supported by probable cause.” Id. In the seminal case of Terry v. Ohio, however,
       the Supreme Court recognized a limited exception to the probable cause requirement,
       allowing police officers, under appropriate circumstances, to briefly stop a person for
       temporary questioning where the officer reasonably believes that the person has committed
       or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 22 (1968). The Terry standard has
       since been codified in the Illinois Code of Criminal Procedure of 1963 (Code) (725 ILCS
       5/100-1 et seq. (West 2008)), which states, in relevant part:
               “Temporary Questioning without Arrest. 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 as defined in
               Section 102-15 of this Code, and may demand the name and address of the person
               and an explanation of his actions.” 725 ILCS 5/107-14 (West 2008).
       We note that “[t]he same standard is applied in determining the propriety of an investigatory
       stop under article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6).”
       Thomas, 198 Ill. 2d at 109. The protection against unreasonable search and seizure under the
       Illinois Constitution is measured by the same standard used to define the protections
       contained in the fourth amendment to the United States Constitution. Id. (citing People v.
       Tisler, 103 Ill. 2d 226, 241-45 (1984)).
¶ 11        Under the Terry exception, the police may conduct a brief investigatory stop “when the
       officer has a reasonable, articulable suspicion that criminal activity is afoot.” Wardlow, 528
       U.S. at 123. The police officer “must be able to point to specific and articulable facts which,
       taken together with rational inferences therefrom, reasonably warrant that intrusion.”
       Thomas, 198 Ill. 2d at 109. Further, “[t]he conduct constituting the stop under Terry must
       have been justified at its inception.” Id.
               “While ‘reasonable suspicion’ is a less demanding standard than probable cause and
               requires a showing considerably less than preponderance of the evidence, the Fourth
               Amendment requires at least a minimal level of objective justification for making the
               stop. [Citation.] The officer must be able to articulate more than an ‘inchoate and
               unparticularized suspicion or “hunch” ’ of criminal activity. [Citation.]” Wardlow,
               528 U.S. at 123-24.
       The underlying facts are viewed “from the perspective of a reasonable officer at the time that
       the situation confronted him or her.” Thomas, 198 Ill. 2d at 110. Courts must “be mindful
       that the decision to make an investigatory stop is a practical one based on the totality of the
       circumstances.” In re S.V., 326 Ill. App. 3d 678, 683 (2001).
¶ 12        The State argues that the police were justified in stopping defendant because he fled from
       them in a high crime area. A person’s presence in a high crime area is a relevant factor in
       deciding whether, under the totality of the circumstances, the police have reasonable
       suspicion to justify a Terry stop. Wardlow, 528 U.S. at 124. Another relevant factor is a
       person’s evasive behavior, particularly unprovoked flight from the police. Id. While neither


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       of these factors taken alone is sufficient to establish reasonable suspicion, when coupled,
       they can be enough to justify a Terry stop. Id. at 124-25. In Wardlow, for example, uniformed
       police officers participating in a special narcotics operation spotted the defendant holding an
       opaque bag in an area known for heavy narcotics trafficking. Id. at 121-22. The defendant
       fled when he saw the police, and when he was caught, the police conducted a protective
       search, finding a handgun in the bag. Id. In holding that these facts were sufficient to justify
       a Terry stop, the Supreme Court stated:
               “An individual’s presence in an area of expected criminal activity, standing alone,
               is not enough to support a reasonable, particularized suspicion that the person is
               committing a crime. [Citation.] But officers are not required to ignore the relevant
               characteristics of a location in determining whether the circumstances are sufficiently
               suspicious to warrant further investigation. Accordingly, we have previously noted
               the fact that the stop occurred in a ‘high crime area’ among the relevant contextual
               considerations in a Terry analysis. [Citation.]
                   In this case, moreover, it was not merely respondent’s presence in an area of
               heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked
               flight upon noticing the police. Our cases have also recognized that nervous, evasive
               behavior is a pertinent factor in determining reasonable suspicion. [Citations.]
               Headlong flight–wherever it occurs–is the consummate act of evasion: It is not
               necessarily indicative of wrongdoing, but it is certainly suggestive of such. In
               reviewing the propriety of an officer’s conduct, courts do not have available
               empirical studies dealing with inferences drawn from suspicious behavior, and we
               cannot reasonably demand scientific certainty from judges or law enforcement
               officers where none exists. Thus, the determination of reasonable suspicion must be
               based on commonsense judgments and inferences about human behavior.” Id. at 124-
               25.
       As the concurrence in Wardlow was quick to emphasize, the Supreme Court refused to adopt
       the bright-line rule advocated by the State of Illinois authorizing the temporary detention of
       anyone who flees at the mere sight of the police. Id. at 126, 136 (Stevens, J., concurring in
       part and dissenting in part, joined by Souter, Ginsburg, and Breyer, JJ.).
¶ 13       The State argues that this case is similar to Wardlow and should thus be decided on the
       same basis. Defendant counters that Wardlow is distinguishable because Officer Goon had
       no information that illegal activity was occurring in the area, he was not investigating any
       particular crime, and the trial court did not find that the location where he stopped defendant
       was a high crime area. The State contests this last point, asserting that Officer Goon’s
       unimpeached testimony established that it was a high crime area. We do not agree. Whether
       an area has a high level of crime is a factual issue. People v. Davis, 352 Ill. App. 3d 576, 580
       (2004). The only contextual evidence introduced by the State at the suppression hearing was
       adduced through the following testimony:
                   “MS. PETERSON [Assistant State’s Attorney]: Officer Goon, in the area where
               this [stop] took place, how long have you patrolled that area?
                   OFFICER GOON: You mean my District or that night?


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                   MS. PETERSON: Specifically the area where you were and where you had the
               opportunity to approach the Defendant and his co-arrestee?
                   OFFICER GOON: That night we were in the area probably since the beginning
               of our shift.
                   MS. PETERSON: And that area is in fact known to be one of high burglaries and
               high robberies; is that correct?
                   OFFICER GOON: That’s correct.
                   MR. LYKE [Defense Counsel]: Objection, Judge.
                   THE COURT: I am waiting for the first block in Chicago that’s not considered
               in the high crime area, and I haven’t heard about it yet.”
       The trial court did not make any express finding concerning the character of the area where
       defendant was stopped. However, the only reason given by the trial court for its initial
       finding that the police had reasonable suspicion to stop defendant was his flight from the
       police, which the court described as “[t]he compelling thing.” In its ruling on defendant’s
       motion to reconsider, the court stated:
                   “THE COURT: I have heard and considered and reconsidered issues raised in this
               motion. I again find the officer that testified to be credible. But the conduct is
               actually neutral in looking at Wardlow again and reading it.
                   I will respectfully allow the motion. I will reverse my ruling. Order of August
               11th is vacated. The motion to suppress is sustained.”
       This indicates that the trial court, having reread Wardlow, concluded that the State failed to
       establish any relevant factor justifying the stop other than defendant’s flight, which was itself
       insufficient to establish a reasonable suspicion that defendant had committed, was
       committing, or was about to commit a crime.
¶ 14       A conclusory and unsubstantiated statement that a location is a “high crime area” is
       insufficient to establish that consideration for purposes of justifying a Terry stop.
                   “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 and ethnicity. *** [C]ourts must carefully examine the
               testimony of police officers *** and make a fair and forthright evaluation of the
               evidence they offer, regardless of the consequences.” United States v. Montero-
               Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000).
       Although the parties have not referenced, and we cannot identify, any Illinois cases
       discussing the quantum of evidence necessary to establish that a location is a high crime area,
       the handful of cases from other jurisdictions addressing this issue have considered a number
       of factors relevant to that inquiry, including some combination of the following:
               “(1) the nexus between the type of crime most prevalent or common in the area and
               the type of crime suspected in the instant case, e.g., Wardlow, 528 U.S. at 124, 120
               S. Ct. 673 (noting that the area was not simply generally crime-ridden, but was
               particularly ‘known for heavy narcotics trafficking,’ where the defendant was
               suspected of drug activity); United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir.

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                2001) (noting that the finding of a high crime area was supported by the similarity
                between the type of crime commonly found at that location and the type of crime for
                which the police suspected this defendant); (2) limited geographic boundaries of the
                ‘area’ or ‘neighborhood’ being evaluated, e.g., United States v. Caruthers, 458 F.3d
                459, 468 (6th Cir. 2006) (affirming a district court’s finding of a high crime area, in
                part, because the evidence of frequent crime was specific to the exact intersection
                where the stop occurred); United States v. Montero-Camargo, 208 F.3d 1122, 1138
                (9th Cir. 2000) (en banc) (‘We must be particularly careful to ensure that a “high
                crime” area factor is not used with respect to entire neighborhoods or communities
                in which members of minority groups regularly go about their daily business, but is
                limited to specific, circumscribed locations where particular crimes occur with
                unusual regularity.’); and (3) temporal proximity between evidence of heightened
                criminal activity and the date of the stop or search at issue, e.g., United States v.
                Bailey, 417 F.3d 873, 874-75, 877 (8th Cir. 2005) (affirming high crime area finding,
                in part, because of criminal activity during week prior to the stop at issue, occurring
                in same location as the stop). Evidence on these issues could include a mix of
                objective data and the testimony of police officers, describing their experiences in the
                area.” United States v. Wright, 485 F.3d 45, 53-54 (1st Cir. 2007).
       See also D.R. v. State, 941 So. 2d 536 (Fla. Dist. Ct. App. 2006) (police officer’s vague and
       unsubstantiated statement that a neighborhood was a known high crime or narcotics area was
       insufficient to establish that it was a high crime area). While these decisions are not binding
       on this court, they may be considered as persuasive authority. People v. Boeckmann, 238 Ill.
       2d 1, 12 (2010).
¶ 15        In this case, aside from Officer Goon’s unsubstantiated response to the State’s question
       of whether the area was “known to be one of high burglaries and high robberies,” which the
       trial court rejected, no evidence was introduced, either by way of experience or objective
       knowledge, concerning the level of crime in the area where defendant was stopped. No
       evidence was introduced concerning the timing, frequency or location of the robberies and
       burglaries referenced by the State. No evidence was introduced that the police suspected
       defendant of committing any robberies or burglaries. Nor were the boundaries of the area at
       issue even generally defined. Further, the police were not responding to any report of a crime
       or engaging in an investigation of a crime that might alert them to the presence of criminal
       activity. In short, the State failed to establish the presence of any significant criminal activity
       in the area of the stop. That deficiency distinguishes this case from Wardlow. Given the
       dearth of contextual evidence, and the fact that the only other evidence possibly justifying
       the stop was defendant’s evasive conduct, we do not find that the trial court’s decision was
       clearly erroneous.

¶ 16                                II. The Protective Search
¶ 17       Having concluded that the police were not justified in temporarily detaining defendant,
       we must also conclude that their subsequent search of defendant was not justified. A police
       officer making a reasonable investigatory stop may conduct a protective search if he has


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       reason to believe the suspect is armed and dangerous. Adams v. Williams, 407 U.S. 143, 146
       (1972). “The purpose of this limited search is not to discover evidence of crime, but to allow
       the officer to pursue his investigation without fear of violence***.” Id. This standard is
       embodied in the Code, which allows a police officer who “has stopped a person for
       temporary questioning pursuant to Section 107-14” to perform a protective search when he
       “reasonably suspects that he or another is in danger of attack.” 725 ILCS 5/108-1.01 (West
       2008). However, the right to perform a protective search presupposes the right to make the
       stop. The police may only perform a protective search if they are entitled to stop the person
       in the first place. Adams, 407 U.S. at 146 (police officer may perform a protective search
       “[s]o long as the officer is entitled to make a forcible stop, and has reason to believe that the
       suspect is armed and dangerous”); Davis, 352 Ill. App. 3d at 580 (“In order for a frisk to be
       constitutionally reasonable, (1) the stop must be proper, (2) the officer must have reason to
       know that the defendant is armed and dangerous, and (3) the scope of the search must be
       strictly limited to a search for weapons.”). This court provided an instructive example of this
       principle in People v. F.J., where it referenced with approval Professor LaFave’s statement:
                “ ‘[I]f a policeman sees a suspicious bulge which possibly could be a gun in the
                pocket of a pedestrian who is not engaged in any suspicious conduct, the officer may
                not approach him and conduct a frisk. And this is so even though the bulge would
                support a frisk had there been a prior lawful stop. Likewise, if an officer, lacking the
                quantum of suspicion required by Terry to make a forcible stop, instead conducts a
                non-seizure field interrogation, he may not frisk the person interrogated upon
                suspicion that he is armed; in such a case the officer may protect himself by not
                engaging in the confrontation.’ ” People v. F.J., 315 Ill. App. 3d 1053, 1060 (2000)
                (quoting 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 247-48 (3d ed. 1996)).
       Since Officer Goon did not provide specific and articulable facts justifying the Terry stop,
       the protective search performed during that stop also lacked a sound constitutional basis.
       Accordingly, the trial court’s ruling granting defendant’s motion to suppress is affirmed.

¶ 18                                   CONCLUSION
¶ 19       Based on the foregoing, we affirm the trial court’s ruling of October 7, 2010, granting
       defendant’s motion to suppress.

¶ 20       Affirmed.




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