                                  Illinois Official Reports

                                          Appellate Court



                             In re Kendale H., 2013 IL App (1st) 130421




Appellate Court              In re KENDALE H., a Minor (The People of the State of Illinois,
Caption                      Petitioner-Appellant, v. Kendale H., Respondent-Appellee).



District & No.               First District, Fifth Division
                             Docket No. 1-13-0421


Filed                        December 27, 2013



Held                         In an interlocutory appeal from the grant of respondent’s motion to
(Note: This syllabus         suppress in proceedings on a petition for adjudication of wardship
constitutes no part of the   arising from the discovery of a shotgun shell in respondent’s clothing
opinion of the court but     during a search thereof after he was shot by the police while he was
has been prepared by the     running from their approaching car, the trial court’s erroneous ruling
Reporter of Decisions        that a stop occurred while respondent was running away was reversed
for the convenience of       and the cause was remanded for a suppression hearing at which
the reader.)                 respondent may introduce evidence that he was shot and the State may
                             respond to that evidence with an explanation of the actions of the
                             police, and based on all of the circumstances surrounding the incident,
                             the trial court should be able to resolve the case in a spirit of humane
                             concern for all involved.



Decision Under               Appeal from the Circuit Court of Cook County, No. 11-JD-4911; the
Review                       Hon. Carl Walker, Judge, presiding.



Judgment                     Reversed and remanded with directions.
     Counsel on               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
     Appeal                   Amy M. Watroba, and Haley Peck, Assistant State’s Attorneys, of
                              counsel), for the People.

                              Eileen M. O’Connor, of O’Connor Law Group, LLC, of Chicago, for
                              appellee.



                              PRESIDING JUSTICE GORDON delivered the judgment of the
     Panel
                              court, with opinion.
                              Justice McBride specially concurred, with opinion, joined by Justice
                              Palmer.


                                             OPINION

¶1         The only issue on this appeal is whether or not a seizure occurred.
¶2         The trial court held that respondent Kendale H., a minor, was seized during the police’s
       vehicular chase of him, while he was running on foot in a vacant lot. On appeal, respondent
       argues that a seizure occurred when the police subsequently shot him in the abdomen. On
       appeal, the State does not argue that the shooting was justified, but argues only that no seizure
       occurred during the chase.
¶3         For the following reasons, we reverse the trial court’s ruling that a seizure occurred during
       the chase and we remand for a suppression hearing at which the minor may introduce evidence
       that, at the end of the chase, he was shot by the police. Although there is no question that the
       shooting was a seizure, our remand provides the State with an opportunity to respond to this
       evidence.
¶4         In the case at bar, the State sought an adjudication of wardship on the ground that the minor
       respondent possessed one shotgun shell, which the police discovered during a search of
       respondent’s clothing after the police shot him. The possession was illegal since respondent
       lacked a Firearm Owner Identification (FOID) card. Respondent moved to suppress the shell
       on the ground that it was the product of an unreasonable seizure in violation of the fourth
       amendment. After a hearing at which the sole witness was one of the arresting officers, the trial
       court granted the motion to suppress. The State then filed a notice of substantial impairment,
       and this appeal followed.

¶5                                        BACKGROUND
¶6         On November 16, 2011, the State filed a petition for adjudication of wardship that alleged
       five counts, including two counts of aggravated assault, one count of assault, one count of
       resisting a police officer, and one count of possessing firearm ammunition without a FOID
                                                   -2-
     card. On November 21, 2011, the trial court found that there was no probable cause to support
     any of the counts but the firearm ammunition count, which is a Class A misdemeanor carrying
     a maximum sentence of less than one year and a fine not to exceed $2,500. 430 ILCS
     65/2(a)(2), 14(e) (West 2012); 730 ILCS 5/5-4.5-55(a), (e) (West 2012).

¶7                                 I. The Probable Cause Hearing
¶8       At the arraignment on November 21, 2011, respondent stated that he was 17 years old, that
     he was currently a senior in high school, that he was graduating this year, that he was going to
     college in Memphis, Tennessee, after graduation, and that he resided with his mother and
     siblings. After the arraignment, the trial court proceeded directly to the probable cause hearing.
     On behalf of the State, the prosecutor stated:
                 “If called to testify under oath, Officer Mayes, spelled M-A-Y-E-S, star number
             1-3-1-7-2, would testify under oath [that on] October 1st, 2011, [at] approximately
             11:09 p.m., he was in or around the address of 6237 South Eberhart Avenue in Chicago,
             Cook County, Illinois 60637.
                 He would testify that on that date and approximate time, he was the passenger in a
             marked police car vehicle [sic] while on duty as a police officer. He would testify that
             his partner was driving the vehicle. He would testify that on that date and approximate
             time, he was driving down 63rd Street when he observed this minor along with two
             other individuals walking on [sic] that address.
                 He would testify that him–he and his partner decided to conduct a field interview
             on these three individuals. He would testify that as he drove towards the three
             individuals, these three individuals, including this minor, had looked in the officer’s
             direction and separated and began to run.
                 He would testify that this–that he then–he and his partner, while in their car, then
             began to follow this minor, who fled northeast from 63rd Street and Vernon [Avenue]
             towards Eberhart [Avenue], and he testified–he would testify that this minor with–who
             was cut off from his northbound flight due to the stopping of the car in front of the
             minor, then reversed his direction and began to run southbound on Eberhart [Avenue].
                 He would testify that at this time, he exited his vehicle, identified himself as a
             Chicago Police Officer, and ordered the minor to stop. He would testify [that] this
             minor then continued to run southbound and then turned eastbound into the north alley
             of 63rd Street. He would testify that he had continued to chase this minor on foot while
             ordering him to stop running.
                 He would testify further that[,] during the course of this chase, he observed this
             minor continually reaching into his waistband as he was running from the officer. He
             would testify that he believed that this minor was attempting to reach for an object in
             his waistband.
                 He would testify further that he ordered this minor to stop running, but this minor
             continued into the alley of Eberhart [Avenue] and ran northbound. He would testify
             that he followed this minor into that alley.
                                                 -3-
                   He would testify further that at 6239 Eberhart [Avenue], this minor turned towards
               him while reaching–stopped fleeing, turned towards him and reached into his
               waistband. He would testify that this minor then turned around and continued to flee.
               He would testify further that he then observed this minor jump over a chain link fence.
                   He would testify that he then ran up to that fence, and while he was before the fence
               and this minor was past the fence, this minor then stopped and reached into his waist
               and began to withdraw his hands.
                   This officer would testify that fearing that this minor was about to pull out a gun, he
               pulled out his own gun and then in defense fired one time, striking this minor in the
               abdomen.
                   He would testify that this minor then fell to the ground. An ambulance was called,
               and then this minor was placed under arrest.”
       The prosecutor then stated: “Based on the testimony of the police officer, then I contend he did
       have probable cause to arrest this minor for all of the charges that were charged in this
       petition.”
¶9         The trial court then observed that it had heard nothing concerning the firearm ammunition
       allegedly found on respondent, and the prosecutor asked to reopen his proffer and the trial
       court granted the request. The prosecutor then stated:
                   “Officer Mayes would testify further that upon placing this minor under arrest in a
               custodial search that he found one shotgun shell in this minor’s shirt pocket.”
       The trial court then made a finding of no probable cause as to all the counts in the petition,
       except for the ammunition count as to which the court did find probable cause. The trial court
       observed that “there should be a finding of no probable cause on that [ammunition count], too,
       and you never said anything about that. Not all judges allow you to reopen your proffer ***.”
¶ 10       The State then informed the court that the minor had no prior criminal history, and the case
       was continued. On October 12, 2012, at a status conference, respondent informed the court that
       he had graduated high school and was starting college in January 2013, and his counsel
       informed the court that respondent had delayed his acceptance for a semester due to this
       matter.

¶ 11                                   II. The Suppression Hearing
¶ 12       The defense filed two pretrial motions. The first motion, filed on August 2, 2012, alleged
       that respondent had picked up the shotgun shell by the subway train tracks on his way home
       and that the statute, which criminalized possession of firearm ammunition without a FOID
       card, was unconstitutional because it criminalized potentially innocent conduct. Attached to
       the motion was a trauma history report from Stroger Hospital stating that respondent had
       arrived at the hospital at 11 p.m. on October 1, 2011, that he had been shot once in the abdomen
       by a police officer and that the bullet had exited under his left arm. This motion remains
       pending. On October 23, 2012, respondent filed a motion to suppress the ammunition on the
       ground that it was the product of an unreasonable search and seizure.

                                                    -4-
¶ 13       On November 2, 2012, the trial court held a hearing on respondent’s suppression motion at
       which one witness was called. Officer Jerome Starks testified that he was 39 years old and had
       been with the Chicago police department since 2006. He was working a “beat patrol” on
       October 1, 2011, with his partner Officer Alfred Mayes on a night shift that began at 9 p.m. and
       lasted until 6 a.m. They were patrolling the area around 63rd Street and South Eberhart Avenue
       in Chicago in a marked police vehicle with Officer Starks driving. At 11 p.m., he observed
       three males walking eastbound on 63rd Street near King Drive. At that time, he was not
       looking for any particular suspects. After observing the three males, he made a right turn onto
       63rd Street from King Drive, traveling eastbound on 63rd Street. When he passed the three
       males, he stopped the vehicle. At that point, he was on 63rd Street, near Vernon Avenue,
       facing eastbound, and he continued to observe the three males. After the police vehicle
       stopped, the three males separated, with two of them walking northbound on Vernon Avenue
       and the third one walking eastbound on 63rd Street. The third one, who was respondent, 1 then
       walked through a vacant lot located on the east side of 63rd Street between Vernon and
       Eberhart Avenues. After respondent entered the vacant lot on foot, Officer Starks drove his
       vehicle into the lot.
¶ 14       Officer Starks testified that his intent in driving into the lot was “[t]o conduct a field
       interview.” He explained that, by “a field interview,” he meant “to stop the individual to maybe
       get a name, get some information, to see what he’s doing, or where he’s going.” However, he
       testified that he had no reason at that time to believe that respondent was involved in any
       criminal activity, and his suspicions about respondent never changed. He also did not have a
       warrant to arrest or search respondent. The officer testified that this was “a high crime area,”
       and he observed “the three individuals walking, looking kind of suspicious only because the
       way they were looking at us as well.” When asked “what about [respondent] appeared
       suspicious to you,” he answered: “Just the hands in the pocket–in his pockets and the way he
       was looking at us to see what we were doing.”
¶ 15       Officer Starks testified that, after driving his police vehicle into the vacant lot, he observed
       respondent walking across the lot and the officer accelerated his vehicle. When the police
       vehicle accelerated, respondent began to run. When respondent began to run, Officer Starks
       stopped the vehicle and Officer Mayes exited the passenger side and yelled at respondent.
¶ 16       Officer Starks testified that the curfew age for a minor under the age of 17 is 9:30 p.m.
       However, for someone 17 years or older, there is no curfew. When he first observed
       respondent, it was before 11 p.m.



           1
            Although defense counsel did not specifically ask Officer Starks to identify respondent in court,
       defense counsel phrased her questions in terms of “the subject” or “Kendale [last name]” and she did
       ask the officer to identify who he meant by “the subject” and he replied: “The subject I believe to know
       now as Mr. [last name].” In addition, defense counsel used respondent’s full name, asking at one point
       whether the officer had a warrant to arrest or search “Kendale [last name].” Also, both the prosecutor
       and the defense counsel subsequently made closing arguments concerning respondent. Thus, there was
       no confusion at the suppression hearing about whom Officer Starks was testifying.
                                                      -5-
¶ 17       After the defense rested, the State moved for a directed finding on the ground that the
       defense failed to have the officer identify the respondent in open court and failed to elicit any
       information concerning a detention of respondent by the officers. The testimony about the
       event at the suppression hearing ended with respondent running across a vacant lot. The trial
       court denied the State’s motion for a directed finding, and the State rested and the parties
       proceeded to closing argument. During closing argument, defense counsel conceded that this
       was a high-crime neighborhood and argued that “the chase was a seizure,” and the prosecutor
       conceded that the officer testified that he “saw a minor, who he believes [sic] his name is
       Kendale [last name].”
¶ 18       After hearing arguments from both sides, the trial court observed that this incident
       “occurred in October in Chicago, so it’s not unusual that individuals walking might have their
       hands in their pockets,” and “that simply being in a high crime neighborhood alone is not
       enough to justify an investigatory stop, although it may be a relevant factor.” The trial court
       then concluded:
                   “The officer has not provided any specific articulable facts, which taken together
              would justify an intrusion in this case. The Court therefore finds the bullets, which
              were the basis for the arrest, are hereby suppressed as a product of an unconstitutional
              seizure.”

¶ 19                              III. The State’s Motion to Reconsider
¶ 20       On November 30, 2012, the State filed a motion to reconsider, arguing: “There is no
       testimony that a seizure occurred in the record. No one testified that the minor was detained in
       any way.” In his response, respondent argued: “This argument is completely nonsensical. The
       State concedes that Officer Mayes detained the Minor by shooting him.” Attached as “Exhibit
       A” to respondent’s response were: the transcript of the November 2, 2012, suppression
       hearing; the trauma history report of Stroger Hospital admitting respondent at 11 p.m. on
       October 1, 2011; and the arraignment order.
¶ 21       On December 20, 2012, after hearing argument from both sides, the trial court stated that,
       in response to the State’s motion to reconsider, it had “decided to reconsider the matter” and
       that it now found the following facts:
                    “And pursuant to the Court’s reconsidering of the matter, the Court finds the facts
                in this matter to be that the officers attempted to stop the minor respondent. The
                officers did not have a warrant at the time that they attempted to stop the minor
                respondent.
                    The Court finds that the minor respondent was doing absolutely nothing unusual.
                He was simply walking down the street when the officers decided that they wanted to
                stop him to conduct a field interview.
                    The officer was clear that the minor respondent was not engaged in any criminal
                activity at the time. The minor had not done anything unusual. He was originally
                walking with two friends. They walked in one direction. The minor walked in another.


                                                   -6-
                  The Court finds–This Court finds that this was a warrantless stop. The Court finds
              that the stop was not justified because the minor was doing nothing unusual.
                  Although an officer may conduct an investigatory stop when the officer reasonably
              infers from circumstances that the person is committing or is about to commit or has
              committed a criminal offense, in this case the officer has no–had no reason to even
              conduct an investigatory stop.
                  [The] [c]ourt finds that the motion to quash should have been granted. The Court
              continues to stand by that ruling, and the motion to quash the arrest is granted. The
              Court finds that even if the–Well, I don’t get into that.
                  The subsequent facts led to the minor in this case subsequently being shot by the
              police officers; but those facts, the Court won’t get into.”

¶ 22                                IV. The State’s Notice of Appeal
¶ 23       On January 18, 2013, the State filed a notice of appeal and a certificate of substantial
       impairment. The certificate stated that “the order granting minor-respondent’s motion to
       suppress evidence and *** the order denying the People’s motion to reconsider in the
       above-captioned case substantially impairs the People’s ability to prosecute said case.”
¶ 24       On January 22, 2013, the parties appeared before the trial court for a previously scheduled
       status date and the State informed the trial court that it had filed a notice of appeal. The defense
       counsel asked about her previously filed motion challenging constitutionality, and the trial
       court explained that it had no authority to act once the notice of appeal was filed.

¶ 25                                           ANALYSIS
¶ 26       In the case at bar, the State sought an adjudication of wardship on the ground that the minor
       respondent possessed one shotgun shell, which the police discovered during a search of
       respondent’s clothing after the police shot him. Respondent moved to suppress the shell on the
       ground that it was the product of an unreasonable seizure in violation of the fourth amendment.
       After a suppression hearing, the trial court granted the motion, and the State filed a notice of
       substantial impairment and this appeal followed.

¶ 27                                     I. Standard of Review
¶ 28       A review of a trial court’s ruling on a motion to suppress evidence presents mixed
       questions of fact and law. People v. Lee, 214 Ill. 2d 476, 483 (2005). When reviewing a trial
       court’s ruling on a motion to suppress evidence, we accord great deference to the trial court’s
       factual findings. People v. Close, 238 Ill. 2d 497, 504 (2010). We will reverse a trial court’s
       findings only if they are against the manifest weight of the evidence. People v. Bunch, 207 Ill.
       2d 7, 13 (2003). “A judgment is against the manifest weight of the evidence only when an
       opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not
       based on evidence.” Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995).
¶ 29       However, we review de novo the trial court’s ultimate legal ruling as to whether
       suppression was warranted. People v. Pitman, 211 Ill. 2d 502, 512 (2004); In re Mario T., 376
                                                    -7-
       Ill. App. 3d 468, 472 (2007) (“Our focus *** is on the legal question of the justification of the
       stop and frisk so as to warrant the denial of the *** motion to suppress.”). De novo
       consideration means we perform the same analysis that a trial judge would perform. Khan v.
       BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). Since the State does not present any
       arguments on appeal that the seizure was reasonable, the ultimate legal question in this case is
       whether a seizure occurred for the purposes of the fourth amendment. This is a question we
       consider de novo. Mario T., 376 Ill. App. 3d at 472-73 (“whether the motion should have been
       granted necessarily turns on a reviewing court’s ‘own assessment of the facts in relation to the
       issues presented and may draw its own conclusions when deciding what relief should be
       granted’ ” (quoting Pitman, 211 Ill. 2d at 512)).
¶ 30        When a criminal defendant files a motion to suppress evidence, claiming that there was an
       illegal search or seizure, he or she has the burden of demonstrating the illegal search or seizure.
       People v. Buss, 187 Ill. 2d 144, 204 (1999). In deciding the motion, the normal rules of
       evidence do not apply and the trial court may consider hearsay evidence that would not be
       admissible at trial. People v. Patterson, 192 Ill. 2d 93, 111-12 (2000); Ill. R. Evid. 104(a) (eff.
       Jan. 1, 2011) (“In making its determination [about the admissibility of evidence], the court is
       not bound by the rules of evidence except those with respect to privileges.”). See also United
       States v. Matlock, 415 U.S. 164, 172-73 (1974) (“the rules of evidence normally applicable in
       criminal trials do not operate with full force at [suppression] hearings before the judge to
       determine the admissibility of evidence”).
¶ 31        As the State correctly observes in its brief, “[i]t is a fundamental principle of appellate law
       that when an appeal is taken from a lower court judgment, the question before the court of
       review is the correctness of the result, not the correctness of the reasoning on which the result
       was reached.” See People v. Johnson, 208 Ill. 2d 118, 128 (2003). Thus, an appellate court may
       affirm a lower court’s judgment on any ground supported by the record. Johnson, 208 Ill. 2d at
       129-30.

¶ 32                                   II. The Juvenile System
¶ 33        A petition for wardship is not a criminal proceeding; it is not even an adversarial
       proceeding. In re C.J., 328 Ill. App. 3d 103, 111, 114 (2002) (“Our supreme court clearly
       denominated juvenile proceedings to be ‘not criminal’ and ‘nonadversarial’ ” (citing In re
       W.C., 167 Ill. 2d 307, 320, 326 (1995))). See also 705 ILCS 405/1-5(1) (West 2012)
       (“proceedings under this Act are not intended to be adversary in character”). The lack of
       adversarialness in the case at bar was emphasized during the probable cause hearing when the
       trial court, instead of dismissing the ammunition count, pointed out to the State that it had
       failed to introduce any evidence on that count and allowed the State to reopen its proffer. “Our
       state supreme court has been careful to point out that neither general criminal practice rules nor
       provisions of the criminal code or criminal procedural code have been incorporated into the
       juvenile system.” In re C.J., 328 Ill. App. 3d at 111 (citing In re W.C., 167 Ill. 2d 307, 322
       (1995), and People v. Woodruff, 88 Ill. 2d 10, 15-16 (1981)). While the Act bestows upon a
       minor “all the procedural rights of adults in criminal proceedings,” nowhere does it require of
       them all the procedural obligations. 705 ILCS 405/5-101(3) (West 2012). Instead, the Act must
                                                    -8-
       be administered in a “spirit of humane concern.” 705 ILCS 405/1-2(2) (West 2012) (“This Act
       shall be administered in a spirit of humane concern.”).

¶ 34                                         III. The Seizure
¶ 35       The timing of the seizure is a critical issue in this case. On appeal, the defense argues that
       respondent was seized at the moment when the officer shot him. The State argues that
       respondent was not seized at the moment when he ran from the officers; however, it offers no
       arguments on appeal concerning whether respondent was seized when he was shot. As stated
       above, we remand so that the State may introduce, at a suppression hearing, evidence what led
       to the shooting, so that the State has the opportunity to address the issue of seizure.
¶ 36       While it is black-letter law that respondent was not seized while he was still running away
       (California v. Hodari D., 499 U.S. 621, 626 (1991)), there is also no question that he was at
       least seized when the shot to his abdomen caused him to fall to the ground. People v.
       Luedemann, 222 Ill. 2d 530, 550 (2006) (seized “ ‘ “by means of physical force” ’ ” (quoting
       Florida v. Bostick, 501 U.S. 429, 434 (1991), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16
       (1968))).
¶ 37       First, respondent was not seized while he was still running away from the officers. For
       purposes of the fourth amendment, an individual is “seized” when an officer “ ‘ “by means of
       physical force or show of authority, has in some way restrained the liberty of a citizen.” ’ ”
       People v. Luedemann, 222 Ill. 2d 530, 550 (2006) (quoting Bostick, 501 U.S. at 434, quoting
       Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). The United States Supreme Court explained:
               “The word ‘seizure’ readily bears the meaning of a laying on of hands or application of
               physical force to restrain movement, even when it is ultimately unsuccessful. (‘She
               seized the purse-snatcher, but he broke out of her grasp.’) It does not remotely apply,
               however, to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a
               fleeing form that continues to flee. That is no seizure.” Hodari D., 499 U.S. at 626.
       As the Hodari D. Court explained, the word “seizure” does not remotely apply to the prospect
       of a policeman yelling “Stop!” at a fleeing form. Hodari D., 499 U.S. at 626. Thus, the trial
       court erred when it held that respondent was seized during the officers’ vehicular chase of
       respondent, as he continued to run on foot.
¶ 38       Second, respondent was certainly seized when he was shot in the abdomen and fell to the
       ground. Further evidence could show that he was seized earlier, but we do not know of any
       additional facts at this point in time to make that determination. “ ‘[T]he appropriate inquiry
       [about whether a seizure occurred] is whether a reasonable person would feel free to decline
       the officers’ requests or otherwise terminate the encounter.’ ” Luedemann, 222 Ill. 2d at 550
       (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). The inquiry “presupposes a reasonable
       innocent person.” (Emphasis in original.) Luedemann, 222 Ill. 2d at 551 (citing Bostick, 501
       U.S. at 438). Illinois courts will consider the totality of the circumstances in determining
       whether or not a seizure occurred. Luedemann, 222 Ill. 2d 530. The circumstances Illinois
       courts will consider when deciding if a seizure occurred include the Mendenhall factors, which
       were set forth in a United States Supreme Court case of the same name. People v. Cosby, 231

                                                   -9-
       Ill. 2d 262, 274 (2008) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In
       Mendenhall, the United States Supreme Court held:
                “ ‘[A] person has been “seized” within the meaning of the Fourth Amendment only if,
                in view of all of the circumstances surrounding the incident, a reasonable person would
                have believed that he was not free to leave. Examples of circumstances that might
                indicate a seizure, even where the person did not attempt to leave, would be [1] the
                threatening presence of several officers, [2] the display of a weapon by an officer, [3]
                some physical touching of the person of the citizen, or [4] the use of language or tone of
                voice indicating that compliance with the officer’s request might be compelled.’ ”
                Cosby, 231 Ill. 2d at 274 (quoting Mendenhall, 446 U.S. at 554).
¶ 39        Respondent was unquestionably seized “ ‘ “by means of physical force” ’ ” when the shot
       to his abdomen caused him to fall to the ground. People v. Luedemann, 222 Ill. 2d 530, 550
       (2006) (quoting Bostick, 501 U.S. at 434, quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
       Once respondent was lying incapacitated on the ground and in need of immediate medical care,
       there was no way for him to “ ‘terminate the encounter’ ” with the police. Luedemann, 222 Ill.
       2d at 550 (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)).
¶ 40        Every single one of the Mendenhall factors shows that a seizure occurred. First, the
       officer’s use of a weapon made their presence more than threatening; and second, the officer
       displayed and used a weapon. Third, the shooting constituted a physical touching; and fourth, it
       indicated that compliance was required. Cosby, 231 Ill. 2d at 274 (quoting Mendenhall, 446
       U.S. at 554). Thus, under fourth amendment precedent, respondent was seized when he was
       shot, although he was not previously seized while he was still in flight.
¶ 41        Since we are remanding for a suppression hearing and we do not want to cause further
       delay by necessitating another appeal, we provide some guidance here. In the case at bar, the
       officer testified both about defendant’s flight and his presence in a high-crime area. In Illinois
       v. Wardlow, 528 U.S. 119, 124-25 (2000), the United States Supreme Court held that flight
       upon seeing police officers, plus presence in a high-crime neighborhood, provided the
       reasonable suspicion needed to justify a Terry stop. However, Wardlow differs from the facts
       at bar in that the Wardlow defendant ran when he first noticed the police. Wardlow, 528 U.S. at
       121-22 (defendant was standing next to a building, when he looked toward the four police
       vehicles converging on the area and took flight). In other words, the Wardlow defendant
       singled himself out for suspicion by running. By contrast, in the case at bar, the police singled
       defendant out before he ever ran. Defendant ran only after the police had already begun
       pursuing him. In addition, in Wardlow, the police converged on a particular area known for
       narcotics trafficking where they expected to find a “crowd of people,” which included a large
       number of “drug customers” and “lookouts.” Wardlow, 528 U.S. at 121, 124. Since the fourth
       amendment embraces a nondiscriminatory application, it must be that the words “ ‘high crime
       area’ ” as used in Wardlow mean something more specific and distinct than simply a
       low-income or minority neighborhood. Wardlow, 528 U.S. at 124 (quoting Adams v. Williams,
       407 U.S. 143, 144 (1972)).
¶ 42        The State does not dispute on appeal that the shooting occurred and the trial court found as
       a factual matter that the chase “led to the minor in this case subsequently being shot by the
                                                    - 10 -
       police officers.” In addition, the State sought the minor’s detention based on a proffer that
       included the shooting; and it cannot now argue that its own proffer lacks credibility. Cf. 705
       ILCS 405/5-150(1)(a) (West 2012) (evidence admitted in any proceeding under the Act is
       admissible in any subsequent proceeding under the Act against the same minor). The trial court
       observed that it is cold in Chicago at night in October when this incident occurred and, as a
       result, there is nothing suspicious about walking down the street with one’s hands in one’s
       pockets. No one could dispute that conclusion.
¶ 43        However, we acknowledge that respondent’s failure to introduce evidence of the shooting
       at the suppression hearing meant that the State then failed to address it as well. The trial court,
       in turn, did not address the shooting in its ruling and instead made an erroneous ruling that
       defendant was seized while he was still running away on foot.
¶ 44        Thus, on this interlocutory appeal, we reverse the trial court’s erroneous ruling that a
       seizure occurred during an ongoing chase and remand for a suppression hearing at which
       respondent may introduce evidence of the shooting, so that the State then has the opportunity
       to respond to the evidence.
¶ 45        While remanding, we observe that all this case concerns is a minor with a shell in his
       pocket, since the State does not dispute the propriety of the trial court’s dismissal of all the
       other charges. On remand, we assume that all parties will conduct themselves in “a spirit of
       humane concern” required by the Act. 705 ILCS 405/1-2(2) (West 2012) (“This Act shall be
       administered in a spirit of humane concern ***.”). We direct the trial court to schedule this
       hearing on an expedited basis, since this child already suffered during the shooting and has the
       potential of college ahead of him. Nothing in this opinion prevents the parties and the court
       from coming to a resolution of this case that is advantageous to all concerned.

¶ 46                                      CONCLUSION
¶ 47       In sum, on this interlocutory appeal by the State, we reverse the trial court’s erroneous
       ruling that a stop occurred during the police’s vehicular chase of a minor who was running
       away on foot. We remand for a suppression hearing at which respondent may introduce
       evidence that he was shot in the abdomen by police officers and at which the State may then
       respond to this evidence.

¶ 48      Reversed and remanded with directions.


¶ 49       JUSTICE McBRIDE, specially concurring.
¶ 50       I concur that we should reverse the trial court’s decision to grant respondent’s motion to
       suppress and that we should remand for further proceedings. Since there was insufficient
       evidence presented at the motion to suppress to establish that a seizure occurred, the trial
       court’s order granting the motion to suppress was erroneous.
¶ 51       Although I would agree that a shooting can amount to a seizure, those facts were never
       developed in the juvenile court and, until they are developed, we have no reason to discuss
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       what should occur upon remand. I also agree that both sides should have an opportunity to
       present evidence to establish whether there was probable cause to arrest respondent.
¶ 52       In light of the above, I concur only in the decision to the extent I have stated, and not in the
       analysis used by the lead author.

¶ 53      JUSTICE PALMER joins in this special concurrence.




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