                               Illinois Official Reports

                                      Appellate Court



                           People v. Sims, 2014 IL App (1st) 121306




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


District & No.           First District, Third Division
                         Docket No. 1-12-1306


Filed                    April 30, 2014
Rehearing denied         July 9, 2014



Held                       The trial court erred in denying defendant’s motion to suppress the
(Note: This syllabus cocaine discovered in his pants during a Terry stop and frisk, where
constitutes no part of the the arresting officer’s testimony that he saw defendant “stuff an
opinion of the court but unknown object into his crotch area,” that he recognized defendant
has been prepared by the and knew he had been arrested for unlawful use of a weapon and that
Reporter of Decisions defendant’s “movement” as he walked away was indicative of
for the convenience of “someone that could be armed” was insufficient to give the officer a
the reader.)               reasonable suspicion to believe defendant was committing the crime
                           of unlawful use of a weapon, especially when the officer only saw
                           defendant place his hand in his pants and never saw a weapon or
                           contraband; therefore, defendant’s conviction for unlawful possession
                           of a controlled substance was reversed.



Decision Under           Appeal from the Circuit Court of Cook County, No. 10-CR-12636; the
Review                   Hon. William H. Hooks, Judge, presiding.



Judgment                 Reversed.
     Counsel on               Michael J. Pelletier and Patrick Morales-Doyle, both of State
     Appeal                   Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Carlos Vera and
                              Michelle Katz, Assistant State’s Attorneys, of counsel), for the
                              People.

     Panel                    PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                              with opinion.
                              Justices Neville and Pucinski concurred in the judgment and opinion.

                                               OPINION

¶1         Defendant appeals the trial court’s denial of his motion to suppress evidence that was
       seized during a Terry stop and frisk. Terry v. Ohio, 392 U.S. 1 (1968). He argues that the
       arresting officer did not have sufficient reasonable suspicion of criminal activity. While
       responding to an unrelated situation, a police officer saw defendant, sitting out in front of a
       building, “stuff an unknown object into his crotch area” and begin to walk away. The officer,
       who recognized defendant and knew he had an arrest for unlawful use of a weapon, stopped
       and searched defendant on the ground that his “movement” was indicative of “someone that
       could be armed.” Although defendant turned out to be unarmed, the officer seized a plastic
       bag containing 25 smaller plastic bags of a substance that ultimately tested positive for
       cocaine.
¶2         After a bench trial, the trial court found defendant guilty of the possession of a controlled
       substance with the intent to deliver and sentenced him to six years’ incarceration on his
       criminal record as a Class X offender. We reverse the conviction and sentence on the ground
       that the stop was not supported with sufficient reasonable suspicion that a crime had been, or
       was about to be, committed.

¶3                                            Background
¶4         The facts are largely undisputed. On June 14, 2010, Officer Robert Vahl, an 11-year
       veteran of the Chicago police department, was on a routine patrol in an unmarked police
       vehicle. Vahl saw two individuals, who are not parties to this appeal, engage in activity that
       he believed was “about to be a narcotics transaction.” Vahl did not see defendant Henry Sims
       with either individual at any time. Vahl and his partner stopped to investigate. Vahl followed
       one suspect through a gangway and his partner followed the other in a different direction. As
       Vahl, who wore civilian clothing with a vest and star around his neck, left the gangway, he
       saw Sims sitting in front of what appeared to be an abandoned building. Vahl saw Sims
       “stuff an unknown object into his crotch area” and begin to walk away. Vahl, recognizing
       Sims and recalling that he had been arrested for unlawful use of a weapon, stopped Sims,
       walked with him a few feet down the gangway, and conducted a brief search. According to
       Vahl, he conducted the search because Sims’s “movement was consistent with someone that
       could be armed,” but admitted that it is not illegal for Sims to stuff his hand down his pants.
       Vahl began his search by placing his open hand on Sims’s crotch, where he felt what he

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       immediately recognized as suspected narcotics. Testing revealed that the recovered material
       consisted of 25 individual items, 16 of which were tested, and found to contain in excess of 5
       grams of cocaine.
¶5         Sims filed a pretrial motion to suppress the evidence, which the trial court denied. The
       only witness at the hearing on the motion to suppress was Officer Vahl. At trial, Vahl offered
       testimony consistent with his testimony at the hearing. The parties stipulated to the chain of
       custody, weight, and composition of the recovered substance. The trial court found Sims
       guilty of possession of a controlled substance with intent to deliver and sentenced him to six
       years’ incarceration.
¶6         Sims contends that the trial court erred when it denied his motion to suppress the
       evidence because Officer Vahl’s actions were not supported by the reasonable suspicion
       required for a Terry stop.

¶7                                                Analysis
¶8         The fourth amendment to the United States Constitution (U.S. Const., amend. IV), which
       applies to the states through the fourteenth amendment (U.S. Const., amend. XIV), and
       article I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, § 6), protects against
       unreasonable searches and seizures. Generally, this protection requires a warrant supported
       by probable cause. See People v. Cummings, 2014 IL 115769, ¶ 14. But, the United States
       Supreme Court has recognized exceptions to the warrant requirement, including an
       investigative stop supported by reasonable suspicion that a crime has been, or is about to be,
       committed, commonly known as a Terry stop. Id. ¶ 15 (citing Terry, 392 U.S. at 21-22); see
       also 725 ILCS 5/107-14 (West 2010).
¶9         To constitute reasonable suspicion, the evidence need not rise to the level of probable
       cause, and it is not necessary that the police officer witness a crime; however, a hunch is
       insufficient. People v. Daniel, 2013 IL App (1st) 111876, ¶ 33. Reasonable suspicion is based
       on an objective standard with the facts viewed from the perspective of a reasonable officer at
       the time of the stop. People v. Sanders, 2013 IL App (1st) 102696, ¶ 14. A police officer
       must be able to point to specific articulable facts which justify the intrusion on the suspect’s
       liberty (id.), “ ‘such as when the officer observes unusual conduct which leads him
       reasonably to conclude in light of his experience that criminal activity may be afoot’ ”
       (People v. Jackson, 2012 IL App (1st) 103300, ¶ 17 (quoting People v. Ertl, 292 Ill. App. 3d
       863, 868-69 (1997))). “In sum, ‘[r]easonable suspicion is a less exacting standard than
       probable cause.’ ” Daniel, 2013 IL App (1st) 111876, ¶ 33 (quoting People v. Ward, 371 Ill.
       App. 3d 382, 412 (2007)). The decision to make an investigatory stop is based on the totality
       of the circumstances. Sanders, 2013 IL App (1st) 102696, ¶ 14.
¶ 10       A Terry stop and frisk entails a two-part analysis. First, a reviewing court must determine
       whether a police officer had reasonable suspicion to justify the temporary detention of a
       suspect. Jackson, 2012 IL App (1st) 103300, ¶ 19. A frisk, however, is justified only when
       the officer can further articulate a reasonable belief that the suspect was armed and
       dangerous. Id.
¶ 11       Our review of a trial court’s ruling employs a two-part standard of review. Cummings,
       2014 IL 115769, ¶ 13 (citing People v. Luedemann, 222 Ill. 2d 530, 542 (2006)). The trial
       court’s findings of fact are given deference and will be reversed only if they are against the


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       manifest weight of the evidence. Id. On the other hand, the trial court’s application of the law
       to the established historical facts is given no deference, and our review is de novo. Id. Each
       case turns on its own facts. Terry, 392 U.S. at 30. Nevertheless, “that does not mean that a
       court is free simply to ignore an entire body of relevant case law and the principles and
       guidelines articulated therein.” Luedemann, 222 Ill. 2d at 552.
¶ 12       The facts are few and largely undisputed. Officer Vahl encountered Sims while he was
       investigating a suspected narcotics transaction, but he did not, before the encounter, see Sims
       engage in any illegal activity. When Vahl saw Sims put an object into the front of his pants,
       Vahl believed Sims’s actions were consistent with secreting a weapon. Vahl knew that Sims
       had been arrested for a weapons violation but did not know the outcome of the arrest. As
       Sims began to walk away, Vahl stopped him, escorted him down the gangway, and
       conducted a pat-down that revealed suspected narcotics.
¶ 13       We find the combination of these facts insufficient to give Vahl a reasonable suspicion
       that Sims was committing the crime of unlawful use of a weapon. Vahl never testified that he
       saw a weapon, or any other contraband. He only saw Sims place his hand in his pants.
¶ 14       The cases on which Sims relies are instructive. In People v. F.J., 315 Ill. App. 3d 1053
       (2000), the juvenile respondent was arrested and charged with unlawful possession of a
       weapon after a frisk revealed a handgun in his pocket. The police officer who conducted the
       search testified that he was on patrol following the report of a gang disturbance in a
       high-crime area. The respondent was seen standing at the entrance to an alley. The officer
       decided to conduct a field interview. As he was getting out of his car, the officer saw the
       respondent put an unknown object in his pocket. Because the officer did not know what the
       object was, he conducted a pat-down search and recovered the handgun. The trial court
       denied the respondent’s motion to suppress evidence and found the respondent delinquent.
       On appeal, this court reversed, holding the police officer lacked a reasonable suspicion of
       criminal activity that would justify a Terry stop. Id. at 1059. This court observed “the fact
       that someone puts something in his or her pocket does not justify the inference that the
       person is involved in criminal activity.” Id. at 1058.
¶ 15       Sims’s action in placing an object in the front of his pants and Vahl’s recognition of Sims
       and knowledge of a prior arrest might create in the mind of a reasonable officer a “gut
       feeling” that something might be afoot. But, reasonable suspicion requires more than a hunch
       or assumption that the suspect is up to no good; it requires articulable facts which support the
       inference that a crime has been, or is about to be, committed. Sanders, 2013 IL App (1st)
       102696, ¶ 14. Hunches or assumptions by nature speak in possibilities, not reason or
       objective truths. Even Vahl admitted on cross-examination that, although suspicious, it is not
       a crime to place an object in one’s pants. And, all Vahl saw was Sims put something that he
       could not identify in the crotch area of his pants and walk away from him.
¶ 16       Sims’s reliance on People v. Fox, 203 Ill. App. 3d 742 (1990), is squarely on point. In
       Fox, the defendant was riding a motorcycle, when he was stopped for speeding. The officer
       wrote him a citation. While he was writing the citation, the officer noticed the defendant
       tugging at a vest he was wearing. As the defendant rode away, the officer noticed a small
       bulge that made him curious even though it did not appear large enough to be a weapon.
       When the officer saw defendant reach back to that spot and make a motion that suggested to
       the officer that the defendant was adjusting a weapon to make it less visible, the officer
       stopped the defendant a second time. The defendant testified to the contrary, that he adjusted

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       his vest for better wind resistance while riding. A search revealed a weapon. The reviewing
       court first decided that the second stop must be viewed as independent of the speeding
       violation and supported by a separate finding of reasonable suspicion. Id. at 745-46. The
       reviewing court ultimately concluded that the officer’s conclusion that the defendant was
       armed was supported only by a hunch based on conduct that had an innocent explanation and
       affirmed the order of the trial court suppressing evidence of the weapon. Id. at 747.
¶ 17       The similarities between the Fox case and the facts here are striking, and we do not find
       the differences significant enough to support a different result. First, unlike Fox, Vahl
       testified that he knew of a prior weapons offense arrest. But, Vahl, like the officer in Fox,
       had a hunch that Sims was hiding a weapon, and a hunch, even a hunch supported by a
       general background of criminal activity, is not enough to support a Terry stop. See People v.
       Thomas, 198 Ill. 2d 103, 110 (2001) (holding knowledge that defendant had been previously
       arrested for drug offenses and had recently been released from prison was insufficient to
       support investigative stop even when coupled with tip that defendant was using his bicycle to
       deliver illegal drugs). Second, unlike Fox, although Vahl admitted that it was not a criminal
       offense, no one offered an innocent explanation for Sims placing his hand in the front of his
       pants. Nevertheless, we find it is the burden of the State to present evidence supporting a
       reasonable inference of criminal activity and not Sims’s burden to justify his actions to the
       State by supplying innocent explanations for his behavior. See People v. Cregan, 2014 IL
       113600, ¶ 23 (although ultimate burden of proof remains with defendant, once defendant
       presents prima facie case that evidence was obtained in illegal search, burden shifts to State
       to provide evidence to counter defendant’s prima facie case). Until a suspect’s actions are
       sufficient to create more than a hunch of criminal activity, the fourth amendment protects
       both innocent and suspicious conduct with equal vigor. Therefore, we find that the State
       failed to establish that Vahl had a reasonable suspicion sufficient to justify the intrusion on
       Sims’s right to go about his business free from intrusion by the police.
¶ 18       We find the State’s reliance on People v. Colyar, 2013 IL 111835, misplaced. In Colyar,
       our supreme court upheld the search of a vehicle based on reasonable suspicion that a
       weapon was present where police officers observed a bullet in the center console during the
       officers’ investigation into a vehicle blocking the entrance to a motel parking lot. Id.
       ¶¶ 43-45. By contrast, Vahl never observed a weapon or a bullet. Accordingly, no search was
       necessary to protect his safety.
¶ 19       We conclude that the trial court erred when it denied Sims’s motion to suppress the
       evidence recovered during the unlawful search of his pants. Because, absent the illegally
       seized narcotics, the State cannot meet its burden of proving defendant’s guilt beyond a
       reasonable doubt, we reverse Sims’s conviction and sentence outright. See People v.
       Rhinehart, 2011 IL App (1st) 100683, ¶ 20.

¶ 20                                Mittimus and Fines and Fees
¶ 21       Having reversed Sims’s conviction, his requests to correct the mittimus and the fines and
       fees order are now moot, and we need not discuss the issues further.
¶ 22       We reverse the judgment of the circuit court of Cook County.

¶ 23      Reversed.


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