2013 IL App (1st) 130421
FIFTH DIVISION December 27, 2013 No. 1-13-0421
In re KENDALE H., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Cook County. ) Petitioner-Appellant, ) ) v. ) No. 11 JD 4911 ) Kendale H., ) Honorable ) Carl Walker, Respondent-Appellee). ) Judge Presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the 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. No. 1-13-0421
¶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
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possessing firearm ammunition without a FOID 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), 65/14(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.
3 No. 1-13-0421
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
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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
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that he followed this minor into that alley.
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
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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 Mays 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,
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respondent informed that 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.
¶ 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
8 No. 1-13-0421
since 2006. He was working a "beat patrol" on October 1, 2011, with his partner
Officer Alfred Mays 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
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.
9 No. 1-13-0421
Vernon and Eberhard 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 Mays
10 No. 1-13-0421
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.
¶ 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
11 No. 1-13-0421
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 intrustion 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:
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"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.
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
13 No. 1-13-0421
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."
14 No. 1-13-0421
¶ 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
15 No. 1-13-0421
(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 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
16 No. 1-13-0421
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 to 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." People v. Johnson,
208 Ill. 2d 118, 128 (2003). Thus, an appellate court may affirm a lower court's
17 No. 1-13-0421
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, 113-14 (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
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 (1996)). 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
18 No. 1-13-0421
must be administered in a "spirit of humane concern." 705 ILCS 405/1-2 (2)
(West 2012) ("The 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, 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 Terry v. Ohio, 392 U.S. 1, 19 (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
19 No. 1-13-0421
restrained the liberty of a citizen.’ ” People v. Luedemann, 222 Ill. 2d 530, 550
(2006) (quoting Terry v. Ohio, 392 U.S. 1, 19 (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, 499 U.S. at 626.
As the Hodari court explained, the word "seizure" does not remotely apply to the
prospect of a policeman yelling "Stop!" at a fleeing form. Hodari, 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
20 No. 1-13-0421
determination. “ ‘The 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 434-35). Illinois courts will consider the totality of
the circumstances in determining whether or not a seizure occurred. Luedemann,
222 Ill. 2d at 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 Ill. 2d
262, 274 (2008) (citing United States v. Mendenhall, 446 U.S. 544, 553 (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
21 No. 1-13-0421
[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 Terry v. Ohio, 392 U.S. 1, 19
(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
22 No. 1-13-0421
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.
23 No. 1-13-0421
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 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. C.f. 705 ILCS 405/5-150(1)(a)
(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
24 No. 1-13-0421
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 "the spirit of humane concern" required by the Act. 705
ILCS 405/1-2 (2) (West 2012) ("The 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
25 No. 1-13-0421
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 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.