                                  Illinois Official Reports

                                          Appellate Court



                              In re Rafeal E., 2014 IL App (1st) 133027




Appellate Court              In re RAFEAL E., a Minor (The People of the State of Illinois,
Caption                      Petitioner-Appellee, v. Rafeal E., a Minor, Respondent-Appellant).




District & No.               First District, Fifth Division
                             Docket No. 1-13-3027



Filed                        May 16, 2014
Rehearing denied             August 19, 2014



Held                         Respondent’s adjudication of delinquency based on possession of
(Note: This syllabus         controlled substances was reversed where the trial court erred in
constitutes no part of the   denying his motion to quash his arrest and suppress evidence, since
opinion of the court but     the adjudication could not stand without the suppressed evidence and
has been prepared by the     the record showed controlled substances were seized from defendant
Reporter of Decisions        following a Terry stop that lacked any reasonable, articulable
for the convenience of       suspicion that defendant was involved in criminal activity or was
the reader.)                 armed and dangerous.




Decision Under               Appeal from the Circuit Court of Cook County, No. 13-JD-02519; the
Review                       Hon. Stuart F. Lubin, Judge, presiding.



Judgment                     Reversed.
     Counsel on                Michael J. Pelletier, Alan D. Goldberg, and Gabriell Green, all of
     Appeal                    State Appellate Defender’s Office, of Chicago, for appellant.

                               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                               Eve Reilly, and Whitney Bond, Assistant State’s Attorneys, of
                               counsel), for the People.

     Panel                     PRESIDING JUSTICE GORDON delivered the judgment of the
                               court, with opinion.
                               Justices McBride and Taylor concurred in the judgment and opinion.

                                                OPINION

¶1         Minor respondent Rafeal E. was adjudicated delinquent for possession of controlled
       substances (heroin and cocaine) and sentenced to 18 months’ probation. On appeal, respondent
       contends that the trial court erred in denying his pretrial motion to quash his arrest and suppress
       evidence, and he requests that the adjudication of delinquency entered on both counts of
       possession be reversed.

¶2                                            BACKGROUND
¶3         A petition for adjudication of wardship was filed on June 12, 2013, alleging that
       respondent was delinquent based on his being in possession of less than 14 grams of a
       substance containing heroin and less than 15 grams of a substance containing cocaine.
       Respondent filed a motion to quash his arrest and suppress evidence, alleging that he was
       seized without probable cause, or a reasonable, articulable suspicion of criminal activity, and
       without a warrant or exigent circumstances negating the need for such. Respondent thus sought
       suppression of the evidence seized as a result of the illegal arrest and seizure.
¶4         At the suppression hearing, Chicago police officer Millan testified that on May 25, 2013,
       he and his partner were in uniform in a marked squad car, patrolling the area of 1139 North
       Lawndale Avenue, and assigned to “Direct Commission, Operation Impact.” Officer Millan
       testified that he knew the area to be a “high narcotics location” based on the drug-related
       arrests he had made on that block in the prior two months.
¶5         Officer Millan further testified that at 10 a.m. that day, he observed respondent standing
       and talking with four to six other individuals at the mouth of an alley. He acknowledged that
       when he first observed respondent standing there, respondent was not violating any laws.
       Defense counsel asked him whether he had an opportunity to approach and speak with
       respondent, and the officer answered, “Yes.” Defense counsel also asked, “And when you
       spoke with the minor respondent, did you ask him to take his hands out of his pants?” and the
       officer clarified, “Out of his pockets,” then answered, “Yes.” After Officer Millan testified that
       he did not have a warrant to arrest or search respondent, defense counsel asked, “And at the
       time that the minor raised his hands, did you recover anything from the minor?” and the officer
       answered, “Yes.” Officer Millan testified that he recovered a clear plastic bag with 10
       individual ziploc bags with yellow tape from respondent’s waistband. He then placed
       respondent in custody and recovered a green ziploc bag containing 10 individual knotted

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     plastic baggies of suspected crack cocaine from his back pocket. Officer Millan testified that
     respondent made no statements to him at that time, and he acknowledged that the items
     recovered from respondent would be used against him by the State. Defense counsel then
     asked, “Officer, at the time that the minor respondent took his hands out of his pockets that was
     in response to your order, correct?” and the officer answered, “Yes.”
¶6       On cross-examination by the State, Officer Millan stated that he first observed respondent
     from a distance of 20 to 25 yards and that respondent looked in his direction and walked away
     from the group. He then described the manner in which respondent walked away as “like a
     brisk walk, with his hands in his pockets,” and, after observing this, he drove directly parallel
     to respondent and asked him to stop. After respondent complied with his request, Officer
     Millan asked respondent to remove his hands from his pockets. When the State asked the
     officer why he made this request, he answered “for officer safety.” The State then asked, “And
     when he removed his hands, where did he put them?” and the officer answered, “He put them
     straight up in the air.” When the State asked if respondent’s shirt lifted up as a result, the officer
     answered, “Yes, it did.” Then, Officer Millan stated that he observed that “the top of
     [respondent’s] pants were sagging down near his–his butt” and a plastic baggie protruding
     from respondent’s waistband. When asked, “And you could see that after he had taken his
     hands out of his pockets, right?” the officer answered, “Correct.” When asked, “Did you ask
     him to put his hands up in the air?” the officer answered, “No, actually I told him to put his
     hands up after I saw him with his hands in his pockets and he just put them straight up.”
¶7       On further cross-examination, when asked, “And in your experience did you know what
     that plastic baggie was?” Officer Millan stated, “Based on my experience, I believed it was
     narcotics,” explaining that a clear plastic sandwich bag is mostly used to carry small individual
     ziploc baggies. For that reason, he recovered the clear plastic bag and placed respondent in
     custody, whereupon a custodial search of respondent revealed a green ziploc bag in his back
     pocket containing 10 knotted baggies of suspected crack cocaine. Then, the State asked, “Now,
     let’s move back to when you first approached minor respondent, did you ask him any other
     questions other than take your hands out of your pockets?” and the officer answered, “No.”
     When asked, “And when you recovered the ziploc baggie that you saw protruding from minor
     respondent’s–the top of his underwear, what did you find to be in that baggie?” the officer
     answered, “A white clear powdery substance, suspect white heroin.” No further testimony was
     presented.
¶8       During argument, defense counsel contended that the motion should be granted because
     there was no reasonable suspicion, probable cause, or any other reason for Officer Millan to
     approach respondent and take a plastic bag out of his pants. Counsel pointed to Officer
     Millan’s testimony that he did not observe respondent violating any laws, that respondent
     simply looked in his direction and walked away, and that respondent complied with his order
     to take his hands out of his pockets and raise his hands, thereby exposing the plastic sandwich
     bag protruding from his waistband. Counsel argued that Officer Millan did not know what was
     in that bag, and while it could have been anything, there was no reason to suspect that
     respondent was armed and dangerous and, thus, there was no reason to recover the bag. The
     State asked that the motion be denied because there was probable cause to arrest respondent
     when the plastic sandwich bag protruded from his waistband “in plain view.” The State also
     argued that respondent was not in custody when Officer Millan merely asked him to take his
     hands out of his pockets. When the trial court asked the parties if there was anything else to

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       add, defense counsel stated, “Just that the State is correct in that the officer saw a plastic baggie
       in plain view. He did not see drugs in plain view.”
¶9         In denying the motion to quash defendant’s arrest and suppress evidence, the trial court
       found that Officer Millan had probable cause “based on seeing the bag and his experience as a
       police officer.” The court noted that Officer Millan told respondent to take his hands out of his
       pockets, not put them “up in the air,” and commented that “maybe if he had taken his hands out
       of his pockets and then just put them at his side his shirt wouldn’t have lifted up and his pants
       wouldn’t have sagged down,” revealing the plastic sandwich bag protruding from his
       waistband. The court also found that once the officer saw the baggie in respondent’s
       underwear, he had a duty to investigate further, stating that although baggies are used for
       sandwiches, “most people don’t carry their sandwiches in their underwear frankly. So once
       [Officer Millan] recovered that, the search incident to arrest is fine.”
¶ 10       At trial, Officer Millan provided testimony similar to that given at the hearing on
       respondent’s motion to quash arrest and suppress evidence. He added that on the date in
       question, he was working in his capacity as a member of the “Area North, Saturation Team.”
       He testified that respondent took his hands out of his pockets, as requested, and then “put his
       hands straight up in the air and I saw a clear plastic baggie protruding from his waistband.” He
       added that the recovered contraband remained in his constant care, custody, and control at all
       relevant times. Further evidence at trial included stipulated testimony regarding the forensic
       analysis and positive identification of the contraband as heroin and cocaine. The trial court
       found respondent guilty of both counts of possession of a controlled substance beyond a
       reasonable doubt and adjudged him a delinquent minor.

¶ 11                                           ANALYSIS
¶ 12       In this appeal, respondent contends that the trial court erred in denying his suppression
       motion by finding that there was sufficient reasonable suspicion for the police to stop him. He
       also challenges the propriety of the subsequent seizure of the plastic sandwich bag protruding
       from his waistband as exceeding the scope of a Terry stop.

¶ 13                                         I. Standard of Review
¶ 14       When reviewing a trial court’s ruling on a motion to quash an arrest and suppress evidence,
       we accord great deference to the trial court’s factual findings unless they are against the
       manifest weight of the evidence, but review de novo the legal question of whether suppression
       is warranted under those facts. People v. Hopkins, 235 Ill. 2d 453, 471 (2009). Here,
       respondent does not contest the credibility of the witnesses, but challenges the trial court’s
       ultimate legal conclusions based on undisputed facts, which we review de novo. People v.
       James, 365 Ill. App. 3d 847, 850 (2006).
¶ 15       The fourth amendment to the United States Constitution (U.S. Const., amend. IV) and
       article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) protect individuals
       from unreasonable searches and seizures. People v. Colyar, 2013 IL 111835, ¶ 31. The
       supreme court has recognized that not every encounter between the police and a private citizen
       results in a seizure, and it has identified three tiers of police-citizen encounters. People v.
       Luedemann, 222 Ill. 2d 530, 544 (2006). These are: (1) arrests, which must be supported by
       probable cause; (2) brief investigative detentions, or Terry stops, which must be supported by a


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       reasonable, articulable suspicion of criminal activity; and (3) consensual encounters, which
       involve no coercion or detention and thus do not implicate fourth amendment interests.
       Luedemann, 222 Ill. 2d at 544.

¶ 16                                   II. A Terry Stop Occurred
¶ 17       Respondent contends that he was subject to a Terry stop, and therefore seized, when a
       marked squad vehicle pulled alongside him while he was on foot and an officer ordered him to
       stop walking, take his hands out of his pockets, and “put his hands up.” We agree that a Terry
       stop occurred. The State argues that the encounter was consensual. The issue that divides the
       parties is whether Officer Millan’s conduct conveyed “ ‘a show of authority, [such that the
       defendant’s] freedom of movement [was] restrained.’ ” People v. Jackson, 389 Ill. App. 3d
       283, 287 (2009) (quoting People v. Cosby, 231 Ill. 2d 262, 273 (2008), citing United States v.
       Mendenhall, 446 U.S. 544, 553 (1980)).

¶ 18                                       A. Show of Authority
¶ 19        In Mendenhall, the United States Supreme Court listed four circumstances in which a
       nonconsensual seizure might occur: (1) the threatening presence of several officers; (2) an
       officer’s display of a weapon; (3) the physical touching of the individual’s person; 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). In determining
       whether a seizure occurred, the appropriate inquiry, which “presupposes a reasonable innocent
       person,” is whether a reasonable person would feel free to decline the officers’ requests or
       otherwise terminate the encounter. (Emphasis in original.) Luedemann, 222 Ill. 2d at 551
       (citing Florida v. Bostick, 501 U.S. 429, 438 (1991)). This requires an objective evaluation of
       the police conduct in question and does not hinge upon the subjective perception of the person
       involved. Luedemann, 222 Ill. 2d at 551. A seizure does not occur simply because a police
       officer approaches an individual and puts questions to that person if the person is willing to
       listen. Luedemann, 222 Ill. 2d at 551.
¶ 20        The evidence presented supports respondent’s position that his encounter with Officer
       Millan was a Terry stop, rather than a consensual encounter. Although there was no evidence
       of several officers, a weapon display or physical touching to accomplish the stop, a marked
       squad vehicle with two officers pulled alongside a man on foot and ordered him to stop
       walking and to take his hands out of his pockets. A reasonable person would have believed
       that, with the officer’s two consecutive orders, compliance “might be compelled.”
       Mendenhall, 446 U.S. at 554; Jackson, 389 Ill. App. 3d at 288. In Jackson, this court found that
       when a police officer approaches an individual and immediately tells him “to remove his hands
       from his pockets,” a reasonable person would understand that statement as a command, not a
       request, and when the individual complied, a seizure took place. Jackson, 389 Ill. App. 3d at
       288. Here, as in Jackson, Officer Millan ordered respondent to stop walking, and when
       respondent did so, he next ordered respondent to take his hands out of his pockets and “put his
       hands up.” Under Jackson, 389 Ill. App. 3d at 288 (and cases cited therein), when respondent
       complied, there was a seizure. Officer Millan answered affirmatively when asked on direct
       examination whether “at the time that the minor respondent took his hands out of his pockets
       that was in response to your order, correct?” (Emphasis added.) A consensual encounter, as
       argued by the State, loses its consensual nature when a police officer conveys a message by a

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       “ ‘show of authority, that induces the individual to cooperate.’ ” Jackson, 389 Ill. App. 3d at
       288 (quoting People v. Gherna, 203 Ill. 2d 165, 179 (2003)). Although in Jackson, the officer
       repeatedly ordered the defendant to remove his hands from his pockets, the totality of
       circumstances in this case shows that the encounter fell somewhere between those instances
       “when a police officer approached an individual and told him he ‘ “needed to talk” ’ with him”
       (Jackson, 389 Ill. App. 3d at 288 (quoting People v. Ocampo, 377 Ill. App. 3d 150, 160-61
       (2007))), and “ ‘when the defendant was told to stop and to remove his hands from his
       pockets’ ” (Jackson, 389 Ill. App. 3d at 288 (quoting People v. Smith, 331 Ill. App. 3d 1049,
       1053 (2002))), which would lead a reasonable innocent person under identical circumstances
       to believe that he was not free to decline the officer’s request or otherwise terminate the
       encounter. The totality includes: (1) the physically intimidating act of a marked police vehicle
       pulling alongside a man on foot; (2) an officer then immediately exiting the vehicle and
       directing orders to defendant, thus indicating that he is their target; and (3) the issuance of not
       one but two consecutive orders.
¶ 21        This is especially true when respondent was told to “put his hands up.” We fully accept the
       trial court’s factual finding that the officer did not tell respondent to stick his hands way “up in
       the air.” However, this finding is still consistent with the officer’s testimony that he “told him
       to put his hands up.” Whether the officer told respondent to put his hands up and out of his
       pockets or up in the air, the officer’s order still constituted a show of authority.

¶ 22                                       B. Show of Authority
           Second, respondent submitted to the officer’s show of authority. In denying the
       suppression motion, the trial court noted that during direct examination, Officer Millan
       testified that he told respondent to take his hands out of his pockets, but on cross-examination
       by the State, the officer stated, “No, actually I told him to put his hands up after I saw him with
       his hands in his pockets and he just put them straight up.” On further cross-examination by the
       State, the officer answered negatively when asked, “Now, let’s move back to when you first
       approached minor respondent, did you ask him any other questions other than take your hands
       out of your pockets?” (Emphasis added.) Under either scenario, “a defendant is not seized
       when he ignores a show of [police] authority” (People v. Billingslea, 292 Ill. App. 3d 1026,
       1030 (1997) (citing People v. Ramirez, 244 Ill. App. 3d 136, 145 (1993))), and the seizure of an
       individual “requires either physical force *** or, where that is absent, submission to the
       assertion of authority” (emphases in original) (California v. Hodari D., 499 U.S. 621, 626
       (1991)). As made clear by the testimony of Officer Millan, respondent’s response to the
       officer’s assertion of authority constituted a submission to that authority, and respondent was
       thereby seized for purposes of the fourth amendment.

¶ 23                                    III. No Reasonable Suspicion
¶ 24       Having determined that Officer Millan’s encounter with respondent constituted a Terry
       stop, we next determine whether he had a reasonable, articulable suspicion that respondent was
       involved in criminal activity or armed and dangerous. People v. Tate, 367 Ill. App. 3d 109, 115
       (2006). Specifically, we must determine whether the police had valid justification for seizing
       respondent at that time. People v. Smith, 331 Ill. App. 3d 1049, 1054 (2002). In doing so, we
       consider the totality of the circumstances. People v. Byrd, 408 Ill. App. 3d 71, 87 (2011).


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¶ 25        “An investigatory stop of a private citizen is allowed only when the police officer has
       specific, articulable facts which, when taken together with rational inferences, create a
       reasonable suspicion that the private citizen is involved in criminal activity.” People v.
       Lockhart, 311 Ill. App. 3d 358, 361 (2000); Terry v. Ohio, 392 U.S. 1, 27 (1968); 725 ILCS
       5/107-14 (West 2008). Mere hunches and unparticular suspicions are insufficient. Smith, 331
       Ill. App. 3d at 1054. Although the facts forming the basis of reasonable suspicion need not rise
       to the level of probable cause and do not require an officer to actually observe the commission
       of a crime, precedent dictates that the necessary quantum of suspicion exist prior to the stop or
       detention. People v. Estrada, 394 Ill. App. 3d 611, 616, 619 (2009) (construing Delaware v.
       Prouse, 440 U.S. 648 (1979)).
¶ 26        The State contends that the present case is similar in every relevant way to Illinois v.
       Wardlow, 528 U.S. 119 (2000), and should therefore be decided accordingly. In Wardlow, 528
       U.S. at 121-22, uniformed police officers conducting a special narcotics operation and
       patrolling in a four-car caravan observed the defendant standing next to a building in a high
       drug-trafficking area holding an opaque bag. The defendant looked in the direction of the
       officers and fled, and the officers “watched him as he ran through the gangway and an alley.”
       Wardlow, 528 U.S. at 122. The officers eventually cornered the defendant on the street,
       stopped him, and, in the ensuing protective search, found a loaded handgun inside the opaque
       bag. Wardlow, 528 U.S. at 122. The United States Supreme Court determined that these
       circumstances justified the investigatory stop of the defendant. Wardlow, 528 U.S. at 125. In so
       determining, the Supreme Court found that an individual’s unprovoked “headlong flight”
       down an alley, plus his presence in a high-crime neighborhood, equaled reasonable suspicion
       justifying a Terry stop. Wardlow, 528 U.S. at 123-24; People v. Jackson, 2012 IL App (1st)
       103300, ¶ 23.
¶ 27        The State argues that here, as in Wardlow, respondent was observed in a “high narcotics
       location” and he “fled” upon noticing the police. The State also notes that Officer Millan
       testified that he had made drug-related arrests on that block in the prior two months. These
       circumstances, the State argues, justified the investigative stop of respondent.
¶ 28        Wardlow involved headlong flight into an alley and away from police vehicles. The case at
       bar involves briskly walking away from an alley and also away from a group of individuals.
       The officer’s testimony was that respondent was walking away from the group that he had been
       standing with; the officer did not state that respondent was walking away from the police
       vehicle. In this appeal, the State asks us to extend Wardlow (1) from headlong running to
       briskly walking; (2) from running down an alley to walking away from an alley and toward an
       open and exposed sidewalk; and (3) from heading away from police vehicles to heading away
       from a group of five to six individuals. We cannot see how walking away, briskly or not, and
       heading to an open sidewalk where the police had easy access to the respondent could possibly
       constitute evasive behavior. In addition, the officer testified that respondent walked away from
       his group not away from the police vehicle. Thus, Wardlow bears little relationship to our facts.
¶ 29        Without a three-pronged extension of Wardlow, there is no other source of reasonable
       suspicion. No evidence was presented that the police suspected respondent of committing any
       narcotics transactions. People v. Harris, 2011 IL App (1st) 103382, ¶ 15. Officer Millan did
       not testify to observing any behavior by respondent or his companions to arouse his suspicion
       as to possible narcotics trafficking. In re Mario T., 376 Ill. App. 3d 468, 476 (2007). In fact,
       nothing about respondent’s activity suggested criminal activity; Officer Millan testified that he

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       observed respondent standing and talking with four to six others at the mouth of an alley.
       Respondent did not run or even walk down the alley. Respondent walked near the curb of the
       street where the officers asked respondent to stop only after observing him briskly walk away
       with his hands in his pockets. Also, respondent had no outstanding warrants. People v. Croft,
       346 Ill. App. 3d 669, 676 (2004).
¶ 30       There is nothing criminally suspicious about walking down the street with one’s hands in
       one’s pockets, whether it was on a cold night in Chicago (In re Kendale H., 2013 IL App (1st)
       130421, ¶ 42), or, as noted by the State in this case, on a “likely warm” morning in May, where
       the contextual evidence introduced by the State reasonably suggests that respondent was
       holding up his pants, which “were sagging down near his–his butt” when he removed his hands
       in compliance with Officer Millan’s directive. Putting something in one’s pockets, in this case,
       one’s hands, is not a hallmark of criminal activity. Smith, 331 Ill. App. 3d at 1055.
¶ 31       Moreover, the State’s characterization of respondent’s conduct as “unprovoked flight upon
       noticing the police,” is unavailing because the “headlong flight” that justified a Terry stop of
       the defendant in Wardlow bears no resemblance to respondent’s conduct in this case. “Running
       from a police officer is different from casually walking through an alley.” (Emphases added.)
       People v. Leggions, 382 Ill. App. 3d 1129, 1135 (2008). Here, he did not even walk into the
       alley. In addition, there was no testimony describing the “headlong flight” or running into an
       alley as in Wardlow. Rather, respondent was standing and talking with a group of individuals at
       the mouth of an alley, in the area of 1139 North Lawndale Avenue in Chicago, which the
       officer described as a “high narcotics location.” Respondent looked in the direction of the
       police and briskly walked away from the group with his hands in his pockets. We decline to
       read Wardlow so broadly as to equate “headlong flight” with briskly walking. Mindful that
       “[h]eadlong flight–wherever it occurs–is the consummate act of evasion” (Wardlow, 528 U.S.
       at 124), we cannot agree with the State’s assertion that briskly walking “undoubtedly alerted
       the reasonable Officer Millan to the possibility of criminal activity afoot,” particularly in light
       of the officer’s testimony that he did not observe respondent violating any laws.
¶ 32       It was made clear by the testimony of Officer Millan that respondent’s response to the
       police officer’s assertion of authority constituted a submission to that authority, and
       respondent was seized for the purposes of the fourth amendment, which constituted a Terry
       stop. The officer did not have a reasonable, articulable suspicion that respondent was involved
       in criminal activity or armed and dangerous. Thus, the police did not have valid justification
       for seizing respondent and, thus, the trial court erred in denying respondent’s motion to quash
       arrest and suppress evidence. As a result, we do not have to decide whether the officer
       exceeded the scope of the Terry stop when he reached into respondent’s pants waistband to
       recover the plastic bag.

¶ 33                                        CONCLUSION
¶ 34       For the reasons stated, we conclude that the trial court erred in denying respondent’s
       motion to quash arrest and suppress evidence (People v. Garcia, 2012 IL App (1st) 102940,
       ¶ 17), and because the State cannot prevail on remand without the suppressed evidence, we
       reverse respondent’s adjudication of delinquency (People v. Trisby, 2013 IL App (1st) 112552,
       ¶ 19).



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¶ 35   Reversed.




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