                                    2014 IL App (3d) 120338

                                  Opinion filed January 13, 2014


                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                                       THIRD DISTRICT

                                           A.D., 2014

THE PEOPLE OF THE STATE OF                        )   Appeal from the Circuit Court
ILLINOIS,                                         )   of the 10th Judicial Circuit,
                                                  )   Peoria County, Illinois,
       Plaintiff-Appellee,                        )
                                                  )   Appeal No. 3–12–0338
       v.                                         )   Circuit No. 10–CF–1024
                                                  )
OMAR PORTER                                       )   Honorable
                                                  )   Timothy M. Lucas,
       Defendant-Appellant.                       )   Judge, Presiding.


       JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
       Justices Carter and Holdridge concurred in the judgment and opinion.


                                            OPINION

¶1     The defendant, Omar Porter, was convicted of armed violence (720 ILCS 5/33A-2(a)

(West 2010)) after a stipulated bench trial, following the denial of his motion to quash his arrest

and suppress evidence. The defendant appealed.

¶2                                             FACTS

¶3     The defendant was arrested on October 2, 2010, and found in possession of a loaded

handgun and approximately five grams of cocaine. He was later indicted for armed violence

(720 ILCS 5/33A-2(a) (West 2010)), unlawful possession of a weapon by a felon (720 ILCS
5/24-1.1(a) (West 2010)), two counts of aggravated unlawful use of weapon (720 ILCS 5/24-

1.6(a)(1) (West 2010)), and unlawful possession of a controlled substance (720 ILCS 570/402(c)

(West 2010)). The defendant filed a motion to quash his arrest and suppress evidence, arguing

that the evidence was discovered during an unlawful arrest and seizure. The trial court held a

hearing on the motion.

¶4     Peoria police officer Denise White testified that she arrived at a home on Northeast

Monroe Street in Peoria at 3:56 am on October 2, 2010, in response to a possible home invasion.

The victim told White that she had been sleeping on the couch and woke up to find a man

standing over her shining his cell phone light at her. The man went into another room, and the

victim never saw him again. The victim described the man as a black male with a dark

complexion and braids, wearing a dark hat and dark clothing.

¶5     Peoria police officer Jacob Beck testified that he was alone in his squad car when he

responded to a call about a home invasion in the early morning hours of October 2. When the

description went out, and another officer stated the he saw a man walking that could have been

the male involved, Beck traveled in the same direction and saw a man matching that description

in the Super Pantry. Beck saw a black male, with small braids, wearing a black shirt and black

hat. He had a red t-shirt on under the black button-up shirt. As Beck walked up to the front

door, the defendant looked and saw Beck and took a couple of steps backwards, looked at the

rear exit door, and saw another officer at the back door. The defendant did not make any quick

movements, nor did reach into his coat or his pockets. Beck motioned for the defendant to come

out of the store, which he did. The report from dispatch did not indicate that the victim of the

home invasion saw a weapon, and Beck had no other notice that the suspect was known to have a


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weapon on him. As the defendant exited the store, Beck, who held the door open, grabbed the

defendant by the left wrist and conducted a patdown for any weapons. Beck testified that he

conducted the patdown for officer safety reasons. Beck did not remember what he said to the

defendant. The defendant tried to pull away, and he tried to take off running.

¶6     Sergeant Paul Segroves, also with the Peoria police department, testified that he

responded to a call regarding a possible home invasion on the morning of October 2. On his way

to the scene, a few blocks from the home, he observed a black male walking southbound, on the

river side of the street. Segroves thought it was odd because it was raining out and there were no

homes of the river side of the street. He reported that he just passed a male, and gave his

description, and then went to the scene. When the victim's description fit the description of the

man he saw, Segroves got back in his car to go look for him. Segroves knew that the Super

Pantry, about 8 blocks away, was the only open business in the area, so he went there, and Beck

followed. Segroves went around back, and he saw the defendant walking toward the back of the

store until the defendant saw Segroves’ car. Segroves testified that Beck motioned the defendant

to come out the front door, and Beck grabbed the defendant's arm when he did. The defendant

immediately started to twist and attempted to run. They struggled for about 10 feet and fell into

the gas pumps. During the struggle, a pistol fell out of the defendant's belt.

¶7     The defendant testified that he was walking from his sister's house to the Super Pantry

around 4am on the morning of October 2 to buy something to drink. He was walking

southbound, and he remembered seeing the police officer drive past him going north. He

testified that he was wearing a black t-shirt with a long-sleeve red shirt underneath, with a black

hat with a red Dodgers logo, and he had braids. He continued into the Super Pantry. He noticed


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about four other people in the Super Pantry; none were dressed like the defendant and none had

braids. While in line to check out, he noticed both officers pull up to the Super Pantry. The

defendant denied walking toward the back door. He followed Beck out of the store, and testified

that Beck immediately grabbed his right arm and tripped him to the ground. The defendant

testified that, after asking him to step outside, Beck did not say anything else to the defendant.

¶8     The trial court denied the motion, finding that there were articulable facts that justified

the stop and temporary detention. It found that the defendant was walking in a generally

non-pedestrian area away from where a home invasion was reported, the defendant matched the

description of the home invader, the defendant made furtive movements inside the store, and the

defendant attempted to flee. Under those facts, the trial court found that the police officers were

acting reasonably when they stopped the defendant, and a patdown was justified.

¶9     The defendant waived his right to a jury trial and consented to a stipulated bench trial,

preserving the issue of the search and seizure for appeal. The defendant was convicted of armed

violence and sentenced to 20 years in prison. The defendant appealed.

¶ 10                                        ANALYSIS

¶ 11   The defendant argues that the trial court should have granted his motion to quash and

suppress because the police did not reasonably suspect that the defendant had committed a crime.

Even if the police had reasonable suspicion, the defendant argues that they exceeded the scope of

the investigatory stop when they seized him and began searching him for weapons when they did

not have a reasonable suspicion that he was armed and dangerous. The State argues that the

police officers had a reasonable suspicion to stop the defendant.

¶ 12   The United States and Illinois Constitutions protect people from unreasonable searches


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and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6. Generally, reasonableness

requires a warrant supported by probable cause. People v. Flowers, 179 Ill. 2d 257 (1997).

Police officers can, however, briefly stop and question an individual without a warrant if they

suspect that the individual committed, is committing, or is about to commit a crime. Terry v.

Ohio, 392 U.S. 1 (1968). When conducting a Terry stop for such an investigatory purpose,

police officers, when necessary for safety, may conduct a limited protective search for weapons.

Flowers, 179 Ill. 2d at 262. In determining whether a police officer's suspicion was reasonable,

courts consider the totality of circumstances surrounding the stop. People v. Smith, 331 Ill. App.

3d 1049 (2002). When reviewing a trial court's ruling on a motion to suppress evidence, we will

uphold factual findings unless they are against the manifest weight of the evidence, but we review

de novo the ultimate legal question of whether suppression was warranted. People v. Absher,

242 Ill. 2d 77 (2011).

¶ 13   In denying the defendant's motion, the trial court found that the area that the defendant

was walking was suspicious because it was a generally non-pedestrian area near the scene of a

reported home invasion. It found that the defendant, with his black shirt and hat and braids,

matched the description of the invader. It also found that the defendant's steps toward the back

of the store, after seeing the police officer arrive in the front, were furtive movements. Based

upon the testimony of the witnesses, those factual findings were not unreasonable or arbitrary, or

not based upon the evidence. See People v. Deleon, 227 Ill. 2d 322 (2008) (a finding is against

the manifest weight of the evidence only if the opposite conclusion is clearly evident, or if the

finding is unreasonable, arbitrary, or not based on the evidence). In light of those factual

findings, an investigatory stop of the defendant, based upon the reasonable suspicion that the


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defendant committed a crime, was justified.

¶ 14   The defendant argues that even if the stop was justified, the officers exceeded the scope

of the Terry stop by conducting a patdown search for weapons when they did not have a

reasonable suspicion that he was armed and dangerous. Although there are circumstances when

a police officer physically grabbing a suspect to effectuate a stop is warranted, those

circumstances were not present in this case. See United States v. Sokolow, 490 U.S. 1 (1989)

(grabbing a suspect and moving him to a sidewalk to prevent him from departing an airport in a

taxicab was reasonable under the circumstances to effectuate a stop). Officer Beck waved the

defendant toward himself at the front door of the Super Pantry, and the defendant complied.

Beck even held the door open for the defendant to exit. Beck did not give the defendant an

opportunity to answer any questions, but immediately grabbed the defendant and put him in a

lock to conduct a patdown.

¶ 15   During a Terry stop, a limited search for weapons, or a “frisk,” is warranted only if a

police officer has reason to believe that the defendant is armed and dangerous. Flowers, 179 Ill.

2d at 262; 725 ILCS 5/108-1.01 (West 2010). The reasonableness of a police officer's belief is

measured by an objective standard, whether a reasonably prudent person in the circumstances

would be warranted in believing that his safety of that of others was in danger. Flowers, 179 Ill.

2d at 264. If a protective search goes beyond what is necessary to determine if a suspect is

armed, it is no longer valid under Terry and any fruits of the search will be suppressed. People v.

Sorenson, 196 Ill. 2d 425 (2001).

¶ 16   Although Beck testified that he conducted the patdown for officer safety reasons, he did

not articulate any reasons that would lead a reasonably prudent person to believe his safety was in


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danger. The victim of the home invasion reported that the suspect had a cell phone, but did not

report any weapon. The officers both testified that the defendant made furtive movements

toward the back door, but Beck testified that the defendant only took a couple of slow steps

toward the back of the store, and the defendant never made any move to reach inside his coat or

pockets. The defendant did not attempt to flee until after Beck grabbed him and started the

patdown. Measured by an objective standard, Beck had no reason to believe that the defendant

was armed and dangerous. Thus, we conclude that the trial court erred in denying the

defendant’s motion to quash and suppress. Without the evidence that should have been

suppressed, the State cannot prove the defendant's guilt. Accordingly, we reverse defendant's

conviction and vacate his sentence. See People v. Kipfer, 356 Ill. App. 3d 132 (2005).

¶ 17                                      CONCLUSION

¶ 18   The judgment of the circuit court of Peoria County is reversed.

¶ 19   Reversed.




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