                                         2014 IL App (3d) 120468

                               Opinion filed October 30, 2014
     ______________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2014

     THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
     OF ILLINOIS,                           ) of the 21st Judicial Circuit,
                                            ) Kankakee County, Illinois,
           Plaintiff-Appellee,              )
                                            ) Appeal No. 3-12-0468
           v.                               ) Circuit No. 11-CF-64
                                            )
     TERRANCE D. CLAYPOOL,                  ) Honorable
                                            ) Clark E. Erickson,
           Defendant-Appellant.             ) Judge, Presiding.
     ______________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices Holdridge and 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.

¶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
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       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 screw drivers 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
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       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

       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:
                                                        4
                      "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
                                                        5
       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 screw drivers 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 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.
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¶ 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:



                                                        7
                              "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 prudent person to believe his
                                                         8
       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 screw drivers, 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 directions 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 Ill App (3d) 120338-B, ¶

       15. The officer need not be absolutely certain that the individual is armed; the issue is "whether
                                                         9
       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 Ill App (3d)

       120338-B, ¶ 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 "each

       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

¶ 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


       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 lot of burglaries"), 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.

                                                         10
       tools or screw drivers [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 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
                                                        11
       the whitish object (later identified as cocaine) out of his mouth and push it into a nearby sewer

       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." 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.

¶ 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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