                                  Illinois Official Reports

                                          Appellate Court



                              People v. Porter, 2014 IL App (3d) 120338




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


District & No.               Third District
                             Docket No. 3-12-0338


Filed                        January 13, 2014
Modified upon
denial of rehearing          February 28, 2014


Held                         Defendant’s conviction for armed violence was reversed and his
(Note: This syllabus         20-year sentence was vacated on the ground that the trial court erred in
constitutes no part of the   denying his motion to quash his arrest and suppress the firearm that
opinion of the court but     fell from his belt during a struggle with an officer, notwithstanding the
has been prepared by the     testimony that police officers, responding to a report of a home
Reporter of Decisions        invasion in the early morning, saw defendant walking in the area, he
for the convenience of       matched the description given by the victim of the home invasion, and
the reader.)                 when defendant was later encountered at a nearby convenience store,
                             he initially followed directions to go outside, but when an officer
                             grabbed his wrist and conducted a patdown search for weapons,
                             defendant attempted to run and a firearm fell out of his belt, since
                             defendant was not given a chance to answer any questions, the officer
                             who conducted the patdown offered no reasons that would lead a
                             reasonable person to believe that his safety was in danger, the victim
                             did not mention any weapon, and defendant did not try to flee until he
                             was grabbed and the patdown started, and without the evidence that
                             should have been suppressed, defendant’s guilt could not be proved.



Decision Under               Appeal from the Circuit Court of Peoria County, No. 10-CF-1024; the
Review                       Hon. Timothy M. Lucas, Judge, presiding.
     Judgment                Reversed.


     Counsel on              Mario Kladis (argued), of State Appellate Defender’s Office, of
     Appeal                  Ottawa, for appellant.

                             Jerry Brady, State’s Attorney, of Peoria (Nadia L. Chaudhry and
                             Thomas D. Arado (argued), both of State’s Attorneys Appellate
                             Prosecutor’s Office, of counsel), for the People.



     Panel                   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 a 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
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     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 he 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 weapon on him. As the defendant exited the store, Beck, who
     held the door open, grabbed the defendant by the left wrist to conduct a 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 eight 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 4 a.m. 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 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 he 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
     nonpedestrian 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

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       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 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 nonpedestrian 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 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 grabbing him to conduct 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,
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       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 or 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 grabbed the defendant to conduct a patdown for officer
       safety reasons, he did not articulate any reasons that would lead a reasonably prudent person to
       believe his safety was in 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 to conduct the patdown. While a police officer can physically restrain someone when he
       attempts to flee, the physical contact in this case came before the defendant made any attempt
       to flee. 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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