                                  Illinois Official Reports

                                          Appellate Court



                             People v. Boswell, 2014 IL App (1st) 122275




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


District & No.               First District, Third Division
                             Docket No. 1-12-2275


Filed                        March 19, 2014
Rehearing denied             June 12, 2014


Held                         Defendant’s conviction for two counts of unlawful possession of a
(Note: This syllabus         controlled substance was reversed and his sentence to an extended
constitutes no part of the   term was vacated on the ground that the trial court erred in denying
opinion of the court but     defendant’s motion to suppress where the arresting officers lacked a
has been prepared by the     reasonable suspicion under Terry to stop and frisk defendant,
Reporter of Decisions        notwithstanding testimony that a woman approached the officers and
for the convenience of       gave them a description of a man she said was selling narcotics at a
the reader.)
                             nearby intersection, since there was no testimony that the officers saw
                             any money or drugs changing hands or that defendant had a large
                             amount of drugs on his person, the frisk of defendant was based only
                             on the suspicion that he was involved in a drug transaction and that
                             “drugs and guns go together,” defendant did not make any furtive
                             movements, and the confrontation took place in daylight on a public
                             street.


Decision Under               Appeal from the Circuit Court of Cook County, No. 11-CR-3843; the
Review                       Hon. Maura Slattery-Boyle, Judge, presiding.



Judgment                     Reversed. Sentence vacated.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Kate E. Schwartz, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Anthony O’Brien, and Brandon Nemec, Assistant State’s Attorneys,
                              of counsel), for the People.




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




                                                OPINION

¶1         Following a jury trial, defendant Lamont Boswell was convicted of two counts of
       possession of a controlled substance. Due to his criminal history, he was sentenced to an
       extended term of five years in prison. On appeal, defendant contends that the trial court erred in
       denying his motion to suppress evidence because the police lacked reasonable suspicion to
       stop and frisk him and that, therefore, his conviction must be reversed. In the alternative,
       defendant contends that he must receive a new trial because he represented himself without
       receiving any of the admonishments required by Illinois Supreme Court Rule 401(a) (eff. July
       1, 1984).
¶2         Because we find that the protective pat-down of defendant was improper, we reverse the
       denial of defendant’s motion to suppress and, in turn, reverse his conviction.

¶3                                          BACKGROUND
¶4         Defendant was arrested in Chicago on February 11, 2011. After the State charged him with
       two counts of possession of a controlled substance (heroin and codeine), defendant filed a
       motion to suppress evidence. In the motion, defendant argued that the police discovered
       physical evidence during the course of an unlawful search of his person, and thus, the evidence
       should be suppressed.
¶5         At the hearing on the motion, defendant called one of the arresting officers, Chicago police
       officer Daniel Prskalo. Officer Prskalo testified that he had been a police officer for 15 years
       and had witnessed over 100 hand-to-hand narcotics transactions. Officer Prskalo testified that
       about 2 p.m. on the day in question, he and his partner, Officer Daniel Gomez, were outside
       their unmarked vehicle when they were approached by a woman they did not know. The
       woman told the officers that a man was selling narcotics at Cottage Avenue and 43rd Street and
       that she had purchased narcotics for her own use. She did not tell the officers what kind of
       narcotics she had purchased or when she had purchased them. The woman gave a description
       of the seller that included his race, height, weight, approximate age, skin complexion, and


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       clothing, but Officer Prskalo did not testify to the specific details of that description. The
       details of the description were also not included in the arrest report.
¶6          Officer Prskalo and his partner, who, Prskalo testified, was driving, went to the identified
       location, which Officer Prskalo characterized as “a known area of narcotic sales based upon
       the past in my experience.” As they approached, Officer Prskalo saw defendant, who matched
       the description provided by the woman. Officer Prskalo saw defendant clasp hands with a man.
       He did not see the exchange of money or any other object. Based upon the information
       received from the woman and defendant’s actions and location, Officer Prskalo believed that a
       hand-to-hand narcotics transaction had taken place. Officer Prskalo further agreed that based
       on his experience, he knew that “drugs and guns go together,” and that it was a reasonable
       inference that people dealing drugs on street corners may also be in possession of weapons.
¶7          Officer Prskalo testified that he and his partner drove past, made a U-turn, and stopped
       their vehicle. They approached defendant, who was on the sidewalk. Defendant did not attempt
       to walk or run away and did not make any furtive movements. The officers identified
       themselves as police, explained why they were at the location, and told defendant they were
       going to conduct a pat-down. Officer Prskalo agreed that the purpose of the pat-down was for
       officer safety. After Officer Prskalo began the pat-down, defendant admitted to him that he had
       “blows,” or heroin, on his person. Officer Prskalo then continued the pat-down, during which
       he recovered suspected heroin, 20 pills contained in a cigarette box, and $191. The officers
       placed defendant under arrest.
¶8          Following argument, the trial court denied defendant’s motion to suppress. In doing so, the
       trial court found that the Terry stop was justified because officers had “reliable and accurate
       information,” and that the Terry frisk was justified because the officers observed what they
       believed to be a drug transaction. The trial court also stated that defendant’s statement during
       the pat-down that he had drugs on his person provided “further probable cause.”
¶9          Subsequently, defendant filed a motion to reconsider, which the trial court denied. The
       court specifically stated that there was no violation of the fourth amendment and that the Terry
       stop was “good.”
¶ 10        At a status hearing on October 13, 2011, the trial court noted that defendant had filed a
       pro se motion to reconsider the denial of the motion to suppress. Defense counsel informed the
       court that he had explained to defendant that the motion had already been denied. He had also
       told defendant he must represent himself if he wished to file his own motions. The trial court
       asked defendant if he wanted to proceed pro se, and defendant indicated he did. The court
       stated, “That’s fine. You are going to be held to the same standard as [defense counsel and a
       senior law student]. You are not a licensed lawyer. Your motion is already stricken. We have
       litigated it. We are setting it for jury.” After a date was selected, the trial court twice reminded
       defendant that he would be representing himself and stated that the public defender was
       allowed to withdraw.
¶ 11        At trial, Officer Prskalo testified consistent with his testimony at the hearing on the motion
       to suppress, adding some detail. He testified that the woman who spoke to him and his partner
       told them she previously bought narcotics from defendant. She also described defendant as
       wearing a camouflage jacket, and defendant was wearing such a jacket when the officers
       spotted him. Officer Prskalo testified that defendant was engaged in conversation with another
       man on the sidewalk and that the men’s hands were clasped. He testified that he asked
       defendant “a question or two,” at which time defendant admitted having a bag of heroin in his

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       right upper pocket. He stated that he told defendant he was going to search the pocket. Officer
       Prskalo found suspected heroin in the pocket. Further search resulted in his finding 20 codeine
       pills in defendant’s left upper jacket pocket.
¶ 12       On cross-examination, Officer Prskalo stated that when he approached defendant, he
       conducted a pat-down for officer safety, defendant’s safety, and the safety of citizens in the
       area. He stated that then, after defendant related that he had heroin in his pocket, he asked
       defendant if he could search the pocket.
¶ 13       Chicago police officer Daniel Gomez testified that he had been a police officer for 16 years
       and had observed narcotics transactions and made narcotics arrests hundreds of times. About
       2:30 p.m. on the day in question, he and Officer Prskalo were in their unmarked squad car
       when they were approached by a woman who told them that a black man about 55 or 60 years
       old, between 5 feet 5 inches and 5 feet 8 inches tall, weighing around 150 to 170 pounds, and
       wearing a green camouflage outfit was selling narcotics on the 4300 block of Cottage Avenue.
       The woman stated that she had a drug habit and would usually go to that area to purchase
       narcotics. The officers drove to the area and saw defendant, who matched the given
       description, about one-half to three-quarters of a block away. Officer Gomez testified Officer
       Prskalo, not he, was driving the vehicle. Defendant was in an area known for narcotics activity.
       Officer Gomez stated that he saw defendant engage in a hand-to-hand narcotics transaction
       with another individual. He saw some money being exchanged, but could not see what, if
       anything, defendant handed to the other individual, who then walked away. Officer Gomez
       related to Officer Prskalo that he “just noticed a hand-to-hand transaction occurred.” Officer
       Prskalo made a U-turn.
¶ 14       Officer Gomez testified that he and his partner got out of their car, approached defendant
       on foot, and conducted a field interview. He described what happened next: “Officer Prskalo
       approached him, asked him if he had any sharp objects on him or contraband when Officer
       Prskalo was doing the protective pat-down; at which time, [defendant] stated that he had one
       blow on him, which is a term for heroin.” After defendant made this statement, Officer Prskalo
       recovered a bag of suspected heroin from defendant’s right jacket pocket. A further search
       resulted in the recovery of a cigarette box containing 20 pills of suspected codeine.
¶ 15       The State’s final witness was a forensic scientist, who testified to the proper chain of
       custody of the narcotics. She also testified that the laboratory results indicated the substances
       recovered from defendant tested positive for heroin and codeine. Defendant presented no
       witnesses and did not testify.
¶ 16       The jury found defendant guilty on both counts of possession of a controlled substance, and
       the trial court entered judgment on the verdict. Defendant made a motion for a new trial,
       challenging the reliability of the officers’ testimony and arguing that Officer Prskalo had no
       probable cause to search his pocket. The trial court denied the motion. Subsequently, the trial
       court sentenced defendant to an extended term of five years in prison.

¶ 17                                          ANALYSIS
¶ 18       On appeal, defendant contends that the trial court erred in denying his motion to suppress
       evidence because the police lacked reasonable suspicion to stop and frisk him. He argues that
       Officer Prskalo did not have a reasonable articulable suspicion that he was engaged in criminal
       activity or was armed, and therefore, the recovered evidence was the fruit of an unlawful


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       seizure and search and should have been suppressed. Defendant asserts that the officers were
       not credible witnesses, as they offered inconsistent testimony with regard to several topics,
       including which of them was driving their car, whether they were inside or outside of the car
       when the woman approached them, which of them saw the hand-to-hand transaction, whether
       currency was visibly exchanged, and at what point defendant told them he had drugs in his
       pocket. He argues that these inconsistencies are material because they cast doubt on whether
       the police received an anonymous tip at all, and because they pertain to the only alleged
       conduct that corroborated the purported tip. Finally, defendant asserts that because there is no
       basis for his conviction without the recovered evidence, his conviction should be reversed
       outright.
¶ 19        The State argues that the officers had reasonable suspicion to stop and frisk defendant, and
       that, after defendant stated that he had “blows” in his pocket, they had probable cause to arrest
       him and search his pockets incident to arrest. The State does not argue that probable cause
       existed prior to defendant’s admission that he was in possession of narcotics.
¶ 20        An appeal from a trial court’s ruling on a motion to suppress presents mixed questions of
       fact and law. People v. McDonough, 239 Ill. 2d 260, 265-66 (2010). We accord great deference
       to the trial court’s factual and credibility determinations and will disturb them only if they are
       against the manifest weight of the evidence. McDonough, 239 Ill. 2d at 266; People v.
       Luedemann, 222 Ill. 2d 530, 542 (2006). However, we review de novo the trial court’s ultimate
       determinations with respect to probable cause or reasonable suspicion, as well as the trial
       court’s application of the facts to the law to determine whether suppression is warranted under
       the facts presented. McDonough, 239 Ill. 2d at 266; People v. Johnson, 408 Ill. App. 3d 107,
       111 (2010).
¶ 21        A police officer may stop a person for temporary questioning if the officer reasonably
       infers from the circumstances that the person is involved in criminal activity. Terry v. Ohio,
       392 U.S. 1, 30 (1968); 725 ILCS 5/107-14 (West 2010). When an officer justifiably believes
       that the individual whose suspicious behavior he is investigating at close range is armed and
       dangerous, the officer may also conduct a pat-down search to determine if the individual is
       carrying a weapon. Terry, 392 U.S. at 24; People v. Sorenson, 196 Ill. 2d 425, 432 (2001).
       Authority to make a Terry stop does not automatically confer authority to conduct a Terry
       frisk. People v. Linley, 388 Ill. App. 3d 747, 753 (2009); People v. Galvin, 127 Ill. App. 3d
       153, 163 (1989) (“Under Terry, the question whether a stop is valid is a distinct and separate
       inquiry from whether a frisk is valid.”). While there is no requirement that the officer be
       absolutely certain that the individual is armed, a reasonably prudent person in the officer’s
       circumstances must be warranted in believing that his safety or that of others was in danger.
       Terry, 392 U.S. at 27; Sorenson, 196 Ill. 2d at 433. The officer must be able to point to
       particular facts that justify the frisk. Linley, 388 Ill. App. 3d at 753.
¶ 22        While defendant makes persuasive arguments regarding the lack of justification for the
       Terry stop, that determination ultimately rested on the trial court’s assessment of the credibility
       of Officer Prskalo’s testimony. “When a court’s ruling on a motion to suppress involves factual
       determinations and assessments of credibility, we may not disturb the ultimate ruling unless it
       [is] manifestly erroneous.” People v. DeLuna, 334 Ill. App. 3d 1, 9 (2002). See also People v.
       Sorenson, 196 Ill. 2d 425, 430-31 (2001) (trial court is in best position to observe witnesses
       and weigh credibility). Therefore, we assume for purposes of this opinion that the Terry stop
       was justified.

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¶ 23       But, as noted, we must assess separately whether the Terry frisk was justified. Even
       assuming the stop of defendant was justified by the combined circumstances of the informant’s
       tip and the hand-to-hand transaction witnessed by the officers, neither officer articulated
       particular facts to support a belief that defendant was armed or to give rise to a justifiable fear
       for their safety or the safety of others. We are mindful that at the hearing on the motion to
       suppress, Officer Prskalo agreed with the prosecutor’s leading questions, “In your 14 years [of]
       experience as a police officer, do you know drugs and guns to go together?” and “Is it a
       reasonable inference, officer, that those dealing drugs on street corners may also be in
       possession of weapons?” However, Terry requires more than a general belief that drug dealers
       may carry weapons before a pat-down may be conducted. People v. Marcella, 2013 IL App
       (2d) 120585, ¶ 32; People v. Rivera, 272 Ill. App. 3d 502, 509 (1995). “[T]he mere fact that an
       officer believes drug dealers carry weapons or narcotic arrests involve weapons is insufficient
       alone to support reasonable suspicion to justify a Terry frisk.” Rivera, 272 Ill. App. 3d at 509.
       Were the law otherwise, every Terry frisk of an individual in an area known for narcotics
       transactions could be justified on that basis alone. But no case so holds.
¶ 24       DeLuna, relied on by the State, does not compel a different result. In DeLuna, officers who
       were executing a search warrant for drugs in an apartment observed defendant exit a vehicle
       outside the building, reach into the rear of the vehicle and retrieve a gray, “ ‘brick-size
       kilo-type package,’ ” which he then put in the waistband of his pants under his shirt. DeLuna,
       334 Ill. App. 3d at 4. When defendant a short time later knocked on the door of the apartment,
       one of the officers conducted a pat-down search and recovered the package, later determined to
       contain cocaine. Id. The officer did not observe defendant with a weapon or articulate any
       concrete basis upon which to conclude that defendant was armed. The officer did, however,
       testify at trial that he performed the pat-down search for his safety. Id. at 10-11. The court
       rejected defendant’s contention that because the officer’s pat-down search was for the purpose
       of recovering contraband, not weapons, his motion to suppress should have been granted.
¶ 25       This case presents a very different scenario. Here, even crediting the testimony that one of
       the officers observed money changing hands, there is no evidence in the record that either
       officer observed any drugs, much less a large quantity of drugs, in defendant’s possession.
       Further, the defendant in DeLuna arrived at the very location where officers had probable
       cause to believe drugs would be found and in possession of a package that, in the officer’s
       experience, appeared to contain drugs. Here, in contrast, defendant was merely standing on a
       public street and neither officer observed him in possession of any quantity of drugs. Finally,
       the quantity of drugs observed by the officer in DeLuna could lead a reasonable officer to
       believe that the individual possessing them was likely to be armed and the officer, in fact,
       testified, that he conducted the pat-down for his safety. But in this case, other than Officer
       Prskalo’s one-word agreement with the prosecutor’s suggestion that “drugs and guns go
       together,” Officer Prskalo frisked defendant based only on a suspicion that he was involved in
       a drug transaction and, therefore, may have been armed. There is no evidence that (1)
       defendant engaged in any furtive movement, (2) the officers observed any bulges in
       defendant’s clothing, or (3) defendant attempted to walk or run away. Further, the officers
       were on a public street during daylight hours. The evidence in this case does not support any
       articulable suspicion that a protective pat-down was necessary. See Rivera, 272 Ill. App. 3d at
       509.



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¶ 26       The protective pat-down of defendant was improper. Accordingly, the evidence recovered
       as a result of the search should have been suppressed and we reverse the judgment of the circuit
       court denying defendant’s motion to suppress. Without the suppressed evidence, the State
       cannot prove beyond a reasonable doubt that defendant possessed heroin or codeine.
       Therefore, we reverse defendant’s conviction outright and vacate his sentence. Linley, 388 Ill.
       App. 3d at 753.
¶ 27       Given our disposition, we need not address defendant’s alternative contention that he
       should be granted a new trial because he represented himself without receiving any of the
       admonishments required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).

¶ 28      Reversed. Sentence vacated.




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