People v. Eyler

2019 IL App (4th) 170064

• Court: Appellate Court of Illinois
• Decided: September 5, 2019
• Docket: 4-17-0064
• Status: Unpublished

Opinion

2019 IL App (4th) 170064 FILED September 5, 2019 NO. 4-17-0064 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County ROBERT W. EYLER JR., ) No. 16CF269 Defendant-Appellant. ) ) The Honorable ) Scott J. Butler, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justice DeArmond concurred in the judgment and opinion. Justice Cavanagh specially concurred, with opinion.

OPINION

¶1 In May 2016, the State charged defendant, Robert W. Eyler Jr., with unlawful

possession of methamphetamine. 720 ILCS 646/60(b)(1) (West 2014). In November 2016,

defendant’s case proceeded to a jury trial at which the State’s witnesses testified essentially to

the following: (1) someone called the police to report “a male subject wearing a blue sweatshirt

who was on a bicycle who was yelling profanities” and acting erratically; (2) shortly after the

call, the police located a suspect—later identified as defendant—who matched this description;

(3) a police officer attempted to effectuate a Terry stop upon defendant, but he fled (see Terry v.

Ohio, 392 U.S. 1 (1968)); (4) the police ultimately stopped defendant and placed him under

arrest; and (5) a search incident to defendant’s arrest revealed a white substance that later tested

positive for methamphetamine. The jury found defendant guilty. In January 2017, the trial court sentenced defendant to five years in prison and assessed various fines and fees.

¶2 Defendant appeals, arguing (1) his attorney was ineffective for failing to file a

motion to suppress the results of the search, (2) a Terry stop can be justified based only upon a

reasonable suspicion of ongoing criminal activity as opposed to a completed crime, and (3) the

trial court erred when it imposed various fines and fees. We affirm.

¶3 I. BACKGROUND

¶4 In May 2016, the State charged defendant with unlawful possession of

methamphetamine. 720 ILCS 646/60(b)(1) (West 2014). In November 2016, defendant’s case

proceeded to a jury trial, and the following testimony was presented.

¶5 Officer J.D. Summers of the Quincy Police Department testified that on the

morning of May 4, 2016, he was dispatched to the vicinity of North 12th and North 13th Streets,

between Spring and Elm Streets, because of “a call in reference to a male subject wearing a blue

sweatshirt who was on a bicycle who was yelling profanities and just acting erratically, and [the

caller] thought it was suspicious.” See 720 ILCS 5/26-1(a)(1) (West 2014) (a defendant commits

disorderly conduct when he knowingly does any act in such unreasonable manner as to alarm or

disturb another and to provoke a breach of the peace).

¶6 Summers stated that he quickly responded to this area while he was driving a

marked police car and “observed a male subject matching that description in that he was wearing

a blue-hooded sweatshirt [and was] riding a bicycle.” Summers testified that he followed closely

behind the bicyclist—whom he later identified as defendant—and yelled “Sir” very loudly on

multiple occasions. Defendant “began pedaling faster” when Summers shouted. Summers stated

that he then yelled “Sir” even louder and defendant then “began to cut through yards westbound

off the alley.” Summers testified that he was “unable to follow him in my patrol vehicle. I mean,

-2- he was on a bicycle pedaling fast, so there was—I wasn’t going to catch up to him on foot ***.”

Summers stated that he then “notified other units via our radio in reference to the situation that I

had a male subject who fled from me.”

¶7 Summers testified that officers from the Quincy Police Department and the

Adams County Sheriff’s Department “converged in the area” and “began field interviews with

neighbors and such because we continued to have neighbors say that they spotted this subject

running now on foot through yards. Also within this process there were two officers that

observed the subject running on foot from us.”

¶8 Officer Jessica Willis of the Quincy Police Department stated that she and other

officers responded on the morning of May 4, 2016, to assist Summers. Willis testified that she

was given a description of a male wearing a blue colored sweatshirt running through an alley and

she and other officers “set up a perimeter in the area that was described.” Willis stated that she

“saw a male matching the description run across the street.” She stated that she followed the

suspect—whom she later identified as defendant—in her squad car. Defendant continued

running, and she testified that she and other officers “got out on foot and ran after the subject.”

Willis testified that she “identified [herself] as a police officer numerous times, yelling at him to

stop, and eventually he did lay down in a backyard.”

¶9 She testified that defendant did not stop until he was essentially surrounded. She

also stated that a deputy pointed his pistol at defendant and ordered him to get down on the

ground. Willis testified that officers searched defendant after he stopped and they handed her a

wallet and a metal pipe from defendant’s person. Willis testified that she found a “green leafy

substance” inside the wallet and that pipes are “commonly used to smoke marijuana.”

¶ 10 Officer Summers testified that he next saw defendant, who at that point was in

-3- police custody, approximately 10 minutes after defendant had fled from him. Summers testified

that he (1) took defendant into custody, (2) performed a “secondary search” of defendant’s

person for safety purposes, and (3) found a drinking straw inside defendant’s pocket that had

“some white residue in it.” Joshua Stern, a forensic scientist with the Illinois State Police, stated

that he tested this residue and “confirmed the presence of methamphetamine.”

¶ 11 After the State rested, defendant presented no evidence. The jury found defendant

guilty of unlawful possession of methamphetamine. In January 2017, the trial court sentenced

defendant to five years in prison and assessed various fines and fees.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 Defendant appeals, arguing (1) his attorney was ineffective for failing to file a

motion to suppress the results of the search, (2) a Terry stop can be justified based only upon a

reasonable suspicion of ongoing criminal activity as opposed to a completed crime, and (3) the

trial court erred when it imposed various fines and fees. We address these issues in turn.

¶ 15 A. Ineffective Assistance of Counsel

¶ 16 Defendant first argues that his attorney was ineffective for failing to file a motion

to suppress the results of the search. We disagree.

¶ 17 1. The Applicable Law

¶ 18 A defendant has the right to effective assistance of counsel at all critical stages of

a criminal proceeding. U.S. Const., amend. VI; People v. Hughes, 2012 IL 112817, ¶ 44, 983

N.E.2d 439. “To establish a claim of ineffective assistance of counsel, the defendant must show

that counsel’s performance was (1) deficient and (2) prejudicial.” People v. Sturgeon, 2019 IL

App (4th) 170035, ¶ 81. An attorney’s performance is deficient when it falls below an objective

-4- standard of reasonableness. Id. ¶ 82. Courts are highly deferential of counsel’s performance, and

a defendant must overcome the strong presumption that the challenged action or inaction may

have been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327, 948

N.E.2d 542, 547 (2011).

¶ 19 To establish prejudice, a defendant must show that, but for counsel’s errors, there

is a reasonable probability that the result of the proceeding would have been different. People v.

Westfall, 2018 IL App (4th) 150997, ¶ 63, 115 N.E.3d 1148. “In the context of failure to file a

motion to suppress, prejudice arises when a defendant demonstrates (1) that the unargued

suppression motion would have been meritorious and (2) that a reasonable probability exists that

the outcome of the trial would have been different had the evidence been suppressed.” People v.

Bates, 2018 IL App (4th) 160255, ¶ 48, 112 N.E.3d 657.

¶ 20 Defendant’s claim of ineffective assistance of counsel requires us to discuss the

offenses of disorderly conduct and resisting or obstructing a peace officer, as well as the law

governing Terry stops. We do so as follows.

¶ 21 a. Disorderly Conduct and Resisting or Obstructing a Peace Officer

¶ 22 A defendant commits disorderly conduct when he knowingly engages in conduct

that (1) is unreasonable, (2) alarms or disturbs another, and (3) provokes a breach of the peace.

720 ILCS 5/26-1(a)(1) (West 2014). “Generally, to breach the peace, a defendant’s conduct must

threaten another or have an effect on the surrounding crowd.” People v. McLennon, 2011 IL App

(2d) 091299, ¶ 31, 957 N.E.2d 1241. “However, a breach of the peace can occur without overt

threats or profane and abusive language.” Id. “Disorderly conduct is loosely defined. As a highly

fact-specific inquiry, it ‘embraces a wide variety of conduct serving to destroy or menace the

public order and tranquility.’ ” Id. ¶ 30 (quoting In re B.C., 176 Ill. 2d 536, 552, 680 N.E.2d

-5- 1355, 1363 (1997)).

¶ 23 A defendant commits the offense of resisting or obstructing a peace officer when

he knowingly resists or obstructs the performance of any authorized act within the official

capacity of one known to him to be a peace officer. 720 ILCS 5/31-1(a) (West 2014). A

defendant “who runs away from an unlawful Terry stop is not resisting or obstructing an

authorized act of the police officer.” People v. Shipp, 2015 IL App (2d) 130587, ¶ 50, 34 N.E.3d

204. “However, such flight does provide police with probable cause to arrest for obstructing a

peace officer if, before defendant fled, the officer in question was justified in detaining defendant

at the time of the flight.” People v. Johnson, 408 Ill. App. 3d 107, 122, 945 N.E.2d 2, 15 (2010);

see also People v. Moore, 286 Ill. App. 3d 649, 654, 676 N.E.2d 700, 704 (1997).

¶ 24 b. Terry Stops

¶ 25 The United States Constitution and the Illinois Constitution protect individuals

from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.

“[T]he touchstone of the fourth amendment is reasonableness, which is measured objectively by

examining the totality of the circumstances surrounding a police officer’s encounter with a

citizen.” People v. Lake, 2015 IL App (4th) 130072, ¶ 28, 28 N.E.3d 1036.

¶ 26 “It is well settled that not every encounter between the police and a private citizen

results in a seizure.” People v. Luedemann, 222 Ill. 2d 530, 544, 857 N.E.2d 187, 196 (2006).

“Police-citizen encounters are divided into three tiers: (1) arrests, which must be

supported by probable cause; (2) brief investigative detentions, commonly

referred to as ‘Terry stops,’ which must be supported by reasonable, articulable

suspicion of criminal activity; and (3) consensual encounters, which involve no

coercion or detention and thus do not implicate the fourth amendment.” Lake,

-6- 2015 IL App (4th) 130072, ¶ 35.

¶ 27 “Probable cause to arrest exists when the facts known to the officer at the time of

the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has

committed a crime.” People v. Grant, 2013 IL 112734, ¶ 11, 983 N.E.2d 1009. “Whether

probable cause exists is governed by commonsense considerations, and the calculation concerns

the probability of criminal activity, rather than proof beyond a reasonable doubt.” Id. “Indeed,

probable cause does not even demand a showing that the belief that the suspect has committed a

crime be more likely true than false.” People v. Wear, 229 Ill. 2d 545, 564, 893 N.E.2d 631, 643

(2008).

¶ 28 “In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court provided an exception to

the warrant and probable cause requirements.” People v. Walker, 2013 IL App (4th) 120118,

¶ 33, 995 N.E.2d 351. “Pursuant to Terry, a police officer may conduct a brief, investigatory stop

of a person where the officer reasonably believes that the person has committed, or is about to

commit, a crime.” People v. Timmsen, 2016 IL 118181, ¶ 9, 50 N.E.3d 1092. A Terry stop “must

be justified at its inception, and the police officer must be able to point to specific and articulable

facts which, taken together with rational inferences from those facts, reasonably warrant that

intrusion.” (Internal quotation marks omitted.) People v. Colyar, 2013 IL 111835, ¶ 40, 996

N.E.2d 575. The officer’s level of suspicion “must be more than an inarticulate hunch.” Id. “The

officer’s conduct is judged by an objective standard, which analyzes whether the facts available

to the officer at the moment of the stop justify the action taken.” People v. Hill, 2019 IL App

(4th) 180041, ¶ 17, 123 N.E.3d 1236.

¶ 29 Alternatively, when an officer approaches an individual without reasonable

suspicion or probable cause, that person “has a right to ignore the police and go about his

-7- business.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). Furthermore, “any refusal to cooperate,

without more, does not furnish the minimal level of objective justification needed for a detention

or seizure.” (Internal quotation marks omitted.) Id. However, “unprovoked flight is simply not a

mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact,

it is just the opposite.” Id. To this point, the United States Supreme Court has recognized that

“nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.]

Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily

indicative of wrongdoing, but it is certainly suggestive of such.” Id. at 124. Moreover, the Illinois

Supreme Court has concluded that “[u]nprovoked flight in the face of a potential encounter with

police may raise enough suspicion to justify the ensuing pursuit and investigatory stop.” People

v. Thomas, 198 Ill. 2d 103, 113, 759 N.E.2d 899, 904-05 (2001).

¶ 30 “Where an informant’s tip is received by telephone, it may form the basis for a

lawful Terry stop, but the information must bear some indicia of reliability, and the information

upon which the police act must establish the requisite quantum of suspicion.” People v. Ledesma,

206 Ill. 2d 571, 583, 795 N.E.2d 253, 262 (2003). Factors to consider when evaluating the

reliability of a tip include (1) whether the tip provides a sufficient quantity of information so that

the officer may be certain that the stopped individual is the one the tipster identified; (2) the time

interval between the officer receiving the tip and locating the suspect; (3) whether the tip is based

upon contemporaneous eyewitness observations; (4) whether the tip is sufficiently detailed to

permit the reasonable inference that the tipster has actually witnessed a crime; and (5) whether

the tip was made to a police emergency number. People v. Shafer, 372 Ill. App. 3d 1044, 1050,

868 N.E.2d 359, 363 (2007); see also People v. Rollins, 382 Ill. App. 3d 833, 837, 892 N.E.2d

21, 24 (2008). Furthermore, “[a] tip providing predictive information and readily observable

-8- details will be deemed more reliable if these details are confirmed or corroborated by the police.”

People v. Sanders, 2013 IL App (1st) 102696, ¶ 15, 986 N.E.2d 114; see also Navarette v.

California, 572 U.S. 393, ___, 134 S. Ct. 1683, 1689 (2014) (for caller who provided a tip to the

police, “[a]nother indicator of veracity is the caller’s use of the 911 emergency system.”). The

Court also noted in Navarette that a “911 call has some features that allow for identifying and

tracing callers, and thus provide some safeguards against making false reports with immunity.”

Navarette, 572 U.S. at ___, 134 S. Ct. at 1689.

¶ 31 In Thomas, 198 Ill. 2d at 106, which is remarkably similar to the present case, the

defendant rode his bicycle past a police officer. This officer, who had previously arrested the

defendant for drug offenses, intended to stop him for a “field interview” based upon a

confidential informant’s tip that the defendant was delivering illegal drugs. Id. The officer, while

driving a squad car without the emergency lights activated, passed the defendant and positioned

his car across defendant’s expected path. Id. The defendant abruptly turned into an alleyway and

departed at an accelerated speed. Id. A second police officer, upon seeing the defendant’s

evasion, drove down the alley and directed the defendant to stop. Id. at 107. The defendant failed

to comply and continued to flee. Id. The defendant eventually abandoned his bicycle and ran into

a field. Id. The first officer exited his squad car and captured the defendant on foot. Id.

Ultimately, the officers arrested the defendant for obstructing a peace officer and recovered what

appeared to be crack cocaine from the defendant’s person. Id. The defendant moved to suppress

this evidence. Id. at 106. The trial court granted the defendant’s motion to suppress, but the Fifth

District reversed. People v. Thomas, 315 Ill. App. 3d 849, 858-59, 734 N.E.2d 1015, 1022-23

(2000).

¶ 32 The Illinois Supreme Court granted the defendant’s petition for leave to appeal,

-9- and the defendant’s sole contention before that court was that the first officer “effected the

investigatory stop without having the requisite degree of suspicion to support it.” Thomas, 198

Ill. 2d at 110. The Illinois Supreme Court, relying extensively upon the Fifth District’s analysis,

first concluded that the officer’s attempt for a “field interview” was an attempted Terry stop

instead of a consensual police-citizen encounter. Id. at 112. However, the court further concluded

that the officer’s “attempt to effect an unlawful stop did not implicate the fourth amendment

because the defendant took flight and prevented it.” (Internal quotation marks omitted.) Id.

Instead, the Illinois Supreme Court decided to examine the officer’s “basis for a seizure of the

defendant’s person at that point in time when he was successful in effecting it.” (Internal

quotation marks omitted.) Id. at 113. The court noted that “[u]nprovoked flight in the face of a

potential encounter with police may raise enough suspicion to justify the ensuing pursuit” and

that the defendant’s response “was nothing short of headlong flight. *** There was nothing to

suggest that the defendant was merely exercising the right to continue on his way or to cause

confusion between the exercise of that right and a pure act of evasion.” (Internal quotation marks

omitted.) Id. at 113-14. Accordingly, the Illinois Supreme Court concluded that there was no

unlawful seizure because the “defendant’s flight, induced by [the officer’s] effort to effect an

unwarranted investigatory stop, turned [the officer’s] otherwise ungrounded suspicion into a

suspicion that justified defendant’s ultimate stop and detention.” Id. at 113.

¶ 33 2. This Case

¶ 34 In this case, Officer Summers was dispatched for “a call in reference to a male

subject wearing a blue sweatshirt who was on a bicycle who was yelling profanities and just

acting erratically and [the caller] thought it was suspicious.” Shortly thereafter, Summers

“observed a male subject matching that description in that he was wearing a blue-hooded

- 10 - sweatshirt [and] riding a bicycle.” Summers attempted to speak with defendant, but he “began

pedaling faster” and “cut through yards westbound off the alley.” Officer Willis was dispatched

to assist and “saw a male matching the description run across the street.” She stated that she and

other officers “got out on foot and ran after the subject. I identified myself as a police officer

numerous times, yelling at him to stop, and eventually he did lay down in a backyard.”

¶ 35 We conclude that Officer Summers was justified in attempting to effectuate a

Terry stop. The record shows that some concerned citizen called the police to report that a man

wearing a blue sweatshirt and riding a bicycle was yelling profanities and acting erratically, and

Summers shortly thereafter observed a suspect who matched this description. A call made to a

police emergency number—which appears to have occurred in this case—is a factor indicating

that the tip is reliable. Shafer, 372 Ill. App. 3d at 1050. Furthermore, we deem this tip reliable

because (1) the tip provided a sufficient quantity of information so that the officer could be

certain that the person stopped was the one the tipster identified, (2) there was a short time

interval between the police receiving the tip and locating the suspect, and (3) the tip appeared to

be based upon a contemporaneous observation of a criminal offense. See id. Accordingly, due to

the nature of the tip, Summers was justified in attempting to effectuate a Terry stop to further

investigate whether defendant committed disorderly conduct. Thus, once defendant began his

unprovoked flight in response to the attempted Terry stop, the officers had probable cause to

arrest defendant for resisting a peace officer. Johnson, 408 Ill. App. 3d at 122 (holding that flight

from a lawful Terry stop provides the police with probable cause to arrest a defendant for

obstructing a peace officer).

¶ 36 We earlier mentioned that a defendant who raises the claim of ineffective

assistance of counsel must overcome the strong presumption that the challenged action or

- 11 - inaction may have been the product of sound trial strategy. Manning, 241 Ill. 2d at 327. When, as

here, defendant seeks to raise such a claim based upon defendant’s assertion that his trial counsel

should have filed a motion to suppress, his burden to overcome this “strong presumption” is

particularly significant. That is because the record (in the absence of a motion to suppress) will

rarely show all of the information the police had or the reasons explaining their actions

because—again, in the absence of a motion to suppress—there would be no reason for the State

to present such evidence. So, defendant essentially is asking this court to assume that no further

evidence could have been presented to justify the search that occurred, but this court has no

reason to engage in such an assumption.

¶ 37 For instance, if a motion to suppress had been filed in this case, here are just a few

of the questions that could have been addressed by the State in response to that motion:

(1) Which officer from the Quincy Police Department received the citizen’s call that resulted in

the police activity? (2) Did the caller identify himself or herself or otherwise provide identifying

information? (3) Did the caller provide any additional information of any kind to the Quincy

police officer who received the call? and (4) Was the call recorded, and if so, is that recording

still available?

¶ 38 Given the circumstances of this case, there is no reason to think that the limited

information transmitted to Summers was the only information possessed by the Quincy police

officer who received the original call. That is, there would be no reason for the dispatch from the

Quincy Police Department to officers like Summers to contain details, such as the identity of the

caller, how many people may have observed the defendant’s behavior, or the extent to which the

caller or anyone else was alarmed or disturbed by the defendant’s behavior.

¶ 39 A further difficulty with defendant’s position is that it assumes defendant’s trial

- 12 - counsel neither had nor sought any of this information; however, we have no reason to believe

that is the case. After all, this is an extraordinarily simple case factually, and it is entirely

possible that defendant’s trial counsel could have made inquiries of the Quincy Police

Department to find out which officer received the initial call and then to seek additional

information about that call from that officer. Had counsel done any of that and learned that in

fact there was additional information the police learned that justified their subsequent actions

regarding defendant, that would fully explain why, as an officer of the court, counsel might have

chosen not to file a motion to suppress evidence. See People v. Ewing, 377 Ill. App. 3d 585, 593,

880 N.E.2d 587, 595 (2007) (“Under the ‘collective- or imputed-knowledge’ doctrine,

information known to all of the police officers acting in concert can be examined when

determining whether the officer initiating the stop had reasonable suspicion to justify a Terry

stop.”); see also People v. Fonner, 385 Ill. App. 3d 531, 541, 898 N.E.2d 646, 655 (2008)

(“When officers are working together, the knowledge of each is the knowledge of all, and the

arresting officer has the right to rely on the knowledge of the officer that gave the command to

arrest together with his own personal knowledge.” (Internal quotation marks omitted.)). So, by

raising the claim of ineffective assistance of counsel, defendant is asking us to presume the worst

of his trial counsel—that is, that counsel did not bother to investigate any of these questions and

that, had counsel done so, counsel’s filing of a motion to suppress would have been meritorious.

¶ 40 Even if we were to assume that Summers’s attempted Terry stop was unlawful,

his attempt to stop defendant “did not implicate the fourth amendment because the defendant

took flight and prevented it.” (Internal quotation marks omitted.) Thomas, 198 Ill. 2d at 112; see

California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical force ***

or, where that is absent, submission to the assertion of authority.” “The narrow question before

- 13 - us is whether, with respect to a show of authority as with respect to application of physical force,

a seizure occurs even though the subject does not yield. We hold that it does not.” (Emphases in

original.)).

¶ 41 Furthermore, again assuming Summers’s attempted Terry stop was unlawful,

“[the] defendant’s flight, induced by [Summers’s] effort to effect an unwarranted investigatory

stop, turned [his] otherwise ungrounded suspicion into a suspicion that justified defendant’s

ultimate stop and detention.” Thomas, 198 Ill. 2d at 113. Stated simply, when the tip to the police

was combined with defendant’s unprovoked flight, the police then had reasonable suspicion to

believe that defendant committed the offense of disorderly conduct. See Wardlow, 528 U.S. at

124 (“Headlong flight—wherever it occurs—is the consummate act of evasion: It is not

necessarily indicative of wrongdoing, but it is certainly suggestive of such.”). Accordingly, once

defendant fled, Officer Willis then had lawful authority to conduct a Terry stop. See Thomas,

198 Ill. 2d at 112. When defendant continued to flee lawful orders to stop, the police had

probable cause to arrest defendant for resisting a peace officer. Johnson, 408 Ill. App. 3d at 122.

¶ 42 Ultimately, because defendant’s arrest was lawful, a motion to suppress the

results of the search incident to his arrest would not have been meritorious. See People v.

Cregan, 2014 IL 113600, ¶ 25, 10 N.E.3d 1196. Therefore, we reject defendant’s ineffective

assistance of counsel argument.

¶ 43 B. Defendant’s “Ongoing Crime” Argument

¶ 44 Based upon Navarette, 572 U.S. at ___, 134 S. Ct. at 1690, defendant argues that

a Terry stop can be justified based only upon a reasonable suspicion of ongoing criminal activity

as opposed to a completed crime. We reject this argument.

¶ 45 In Navarette, a caller reported that a pickup truck had driven her off the roadway.

- 14 - Id. at ___, 134 S. Ct. at 1689. The caller reported the approximate location of the incident, a

description of the truck, and the truck’s license plate number. Id. at ___, 134 S. Ct. at 1686.

Approximately 20 minutes later, a police officer observed a truck that matched the caller’s

description. Id. at ___, 134 S. Ct. at 1687. Officers followed the truck for approximately five

minutes but were unable to observe any traffic violations or other suspicious behavior. See id. at

___, 134 S. Ct. at 1696 (Scalia, J., dissenting, joined by Ginsburg, Sotomayor, and Kagan, JJ.).

Notwithstanding this, an officer pulled over the truck based upon the caller’s tip. Id. at ___, 134

S. Ct. at 1686-87 (majority opinion). As officers approached the truck, they smelled marijuana.

Id. at ___, S. Ct. at 1687. A subsequent search of the truck revealed 30 pounds of marijuana. Id.

at ___, 134 S. Ct. at 1687. The defendants unsuccessfully moved to suppress the evidence,

arguing that the traffic stop violated the fourth amendment because the officer lacked a

reasonable suspicion of criminal activity. Id. at ___, 134 S. Ct. at 1687. The California Court of

Appeal affirmed, concluding (among other matters) that “the caller reported driving that was

sufficiently dangerous to merit an investigative stop without waiting for the officer to observe

additional reckless driving himself.” Id. at ___, 134 S. Ct. at 1687.

¶ 46 The United States Supreme Court concluded that the tip was sufficiently reliable

because (1) the call included key information about the truck, (2) the caller reported the incident

using an emergency police number, and (3) the alleged conduct bore “too great a resemblance to

paradigmatic manifestations of drunk driving to be dismissed as an isolated example of

recklessness.” Id. at ___, ___, 134 S. Ct. at 1688-89. In passing, the Court noted that it needed to

“determine whether the 911 caller’s report of being run off the roadway created reasonable

suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past

recklessness.” Id. at ___, 134 S. Ct. at 1690.

- 15 - ¶ 47 We conclude that the Navarette Court did not somehow create a per se rule that a

Terry stop can be justified only by ongoing criminal activity as opposed to completed or future

criminal activity. Instead, we believe the context of the Court’s use of the phrase “ongoing

crime” was an indication of the Court’s understanding of the seriousness of the circumstances as

understood by the police officer who made the stop in Navarette, helping the Court to determine

whether the situation the officer confronted was serious enough to warrant a Terry stop. In

support of our conclusion, we note that both the majority and the dissenters in Navarette

primarily addressed the reliability of the caller’s tip and whether it justified the officer’s

investigative stop, particularly given that the officer involved saw no traffic violation before

making that stop.

¶ 48 No Supreme Court justice in Navarette pointed to the phrase “ongoing crime” as

having any particular significance for the resolution of that case. Under these circumstances, we

find it impossible to believe that the United States Supreme Court—in such an apparently off-

hand manner—somehow massively revised one of its most significant and carefully followed

decisions governing police-citizen encounters.

¶ 49 The Court’s Terry decision is 51 years old and has seemingly been universally

understood for half a century as standing for the following proposition: “The typical Terry stop

involves the temporary seizure of a person who is himself suspected of being directly involved in

past, present[,] or pending criminal activity.” 4 Wayne R. LaFave, Search and Seizure § 9.2(b),

at 377 (5th ed. 2012). In his comprehensive treatise, Professor LaFave cites hundreds of state and

federal cases dealing with Terry stops. We also note that in Professor LaFave’s cumulative

supplement to Volume 4, he discusses Navarette (4 Wayne R. LaFave, Search and Seizure

§ 9.2(a) (5th ed. Supp. 2018-19), at 57-58) and suggests the discussion of “ ‘an ongoing crime’ ”

- 16 - in Navarette seems to be connected to how the police may have evaluated the seriousness of the

report they received of possible criminal activity. (See also id. § 9.3(a) (further discussing

Navarette). Nowhere in LaFave’s universally well-regarded treatise is there any suggestion that

Navarette somehow undid almost half a century of everyone’s understanding of what Terry

stood for.

¶ 50 In further support of this view, we again cite the decision of the Illinois Supreme

Court in People v. Thomas we have already discussed extensively. In Thomas, the Illinois

Supreme Court wrote the following: “Under the Terry exception, a police officer may briefly

stop a person for temporary questioning if the officer reasonably believes that the person has

committed, or is about to commit, a crime.” Thomas, 198 Ill. 2d at 109. The Thomas court also

wrote the following:

“The Terry standards have been codified in our Code of Criminal

Procedure of 1963. [Citations.] Section 107-14 of the Code provides, in pertinent

part: ‘A peace officer *** may stop any person in a public place for a reasonable

period of time when the officer reasonably infers from the circumstances that the

person is committing, is about to commit[,] or has committed an offense ***.’ 725

ILCS 5/107-14 (West 1998). The same standard is applied in determining the

propriety of an investigatory stop under article I, section 6, of the 1970 Illinois

Constitution (Ill. Const. 1970, art. I, § 6).” Id.

¶ 51 We further note that Thomas is hardly the last time the Illinois Supreme Court has

discussed Terry. That court has repeatedly stated that a Terry stop may be justified by completed

criminal activity. See Timmsen, 2016 IL 118181, ¶ 9 (“Pursuant to Terry, a police officer may

conduct a brief, investigatory stop of a person where the officer reasonably believes that the

- 17 - person has committed, or is about to commit, a crime.”); People v. Close, 238 Ill. 2d 497, 505,

939 N.E.2d 463, 467 (2010) (“Under Terry, a police officer may conduct a brief, investigatory

stop of a person where the officer reasonably believes that the person has committed, or is about

to, commit a crime.”); People v. Johnson, 237 Ill. 2d 81, 89, 927 N.E.2d 1179, 1185 (2010)

(“Under the Terry exception, a police officer may briefly stop a person for temporary

questioning if the officer reasonably believes the person has committed, or is about to commit, a

crime.”); People v. Smith, 172 Ill. 2d 289, 297, 665 N.E.2d 1215, 1219 (1996) (“An officer may

make a valid investigatory stop, absent probable cause to arrest, provided the officer can

reasonably infer from specific and articulable facts that the individual in question has committed

or is about to commit a crime.”). We also note that Timmsen was decided two years after

Navarette. Thus, defendant’s “ongoing crime” argument is clearly inconsistent with Illinois

Supreme Court precedent.

¶ 52 We are aware that a panel of the First District, relying upon Navarette, has

apparently adopted a per se rule that a tip will justify a Terry stop only if there is evidence of an

ongoing crime. See People v. Lopez, 2018 IL App (1st) 153331, ¶¶ 24-28, 112 N.E.3d 1069. For

the reasons already stated, we believe the Lopez court has incorrectly viewed Navarette, and we

decline to follow Lopez. We note that the Lopez court relied in part upon this district’s analysis in

Shafer, 372 Ill. App. 3d at 1050, in order to reach its conclusion that a tip must be based upon an

ongoing crime. However, that reliance is misplaced; Shafer does not stand for the proposition

that a reliable tip must be based upon observing an ongoing crime. See id. at 1054 (noting that

one factor of reliability is whether the tip was based upon a contemporaneous eyewitness

observation).

¶ 53 We also note that a panel of the First District has concluded that “flight alone is

- 18 - not sufficient to establish reasonable suspicion that a person has committed, or is about to

commit, a crime.” People v. Hyland, 2012 IL App (1st) 110966, ¶ 32, 981 N.E.2d 414; see also

People v. Harris, 2011 IL App (1st) 103382, ¶ 12, 957 N.E.2d 930; see also In re D.L., 2017 IL

App (1st) 171764, ¶ 28. However, this statement is inconsistent with Illinois Supreme Court

doctrine. See Thomas, 198 Ill. 2d at 113 (“Unprovoked flight in the face of a potential encounter

with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop.”).

¶ 54 C. Fines and Fees

¶ 55 Last, defendant argues that the trial court erred when it imposed various fines and

fees. However, the Illinois Supreme Court has recently promulgated Rule 472, which provides in

criminal cases that the trial court “retains jurisdiction” even during “the pendency of an appeal”

to correct “[e]rrors in the imposition or calculation of fines, fees, assessments, or costs.” Ill. S.

Ct. R. 472(a)(1) (eff. Mar. 1, 2019). Thus, we decline to address this matter because the trial

court still has jurisdiction to correct any alleged error. See Sturgeon, 2019 IL App (4th) 170035,

¶ 120 (declining to address arguments regarding fines and fees because the trial court still had

jurisdiction to correct any alleged error).

¶ 56 III. CONCLUSION

¶ 57 For the reasons stated, we affirm defendant’s conviction.

¶ 58 Affirmed.

¶ 59 CAVANAGH, J., specially concurring:

¶ 60 I concur with the majority’s decision to affirm the trial court’s judgment, and the

reason for my concurrence is that Summers saw defendant “cut through yards westbound off the

alley.” That personal observation by Summers would have aroused a reasonable suspicion, under

the circumstances, that defendant had committed the offense of criminal trespass to real property

- 19 - (720 ILCS 5/21-3(a)(2) (West 2014)).

¶ 61 Granted, the record appears to lack any evidence that the land was posted. See id.

§§ 21-3(b), (b-5). Even so, police officers “may make a lawful Terry stop without first

determining whether the circumstances [they] observed would satisfy each element of a

particular offense.” People v. Little, 2016 IL App (3d) 130683, ¶ 18 “Applying that rule in this

particular case, [the police officer] was not required to have evidence that the notice element of

criminal trespass to real property was satisfied before he could make an investigatory stop [of

defendant] to investigate a possible commission of that offense.” Id.

¶ 62 Summers might have lacked an opportunity, at first, to ascertain whether there

were any no-trespassing signs. “The purpose of a Terry stop is to allow a police officer to

investigate the circumstances that provoke suspicion and either confirm or dispel his suspicions.”

(Internal quotation marks omitted.) Close, 238 Ill. 2d at 512. Among the questions that

legitimately could have been investigated in a Terry stop was whether any of the yards on which

defendant had trespassed were posted (see 720 ILCS 5/21-3(b-5) (West 2014)) or whether

defendant previously received notice that going onto those yards was forbidden (see id. § 21-

3(b)). If a police officer sees someone go onto land—especially the curtilage of houses—and the

officer reasonably suspects that the person lacks permission to go onto the land, the officer surely

is justified in stopping the person and asking questions.

¶ 63 After Summers saw defendant apparently trespassing on private property (at

minimum, a civil trespass and possibly also a criminal trespass), the police had legitimate

grounds for a Terry stop. Defendant failed to comply immediately with Willis’s commands to

stop, even though she repeatedly identified herself as a police officer and yelled at him to stop.

“[F]light does provide police with probable cause to arrest for obstructing a peace officer [(720

- 20 - ILCS 5/31-1(a) (West 2008))] if, before [the] defendant fled, the officer in question was justified

in detaining defendant at the time of the flight.” Johnson, 408 Ill. App. 3d at 122. Given such

justification, the search of defendant’s person was a search incident to a valid arrest. See People

v. Cregan, 2011 IL App (4th) 100477, ¶ 21.

¶ 64 While concurring on that narrow rationale and thereby following Little, I find

myself in respectful disagreement with several points in the majority’s decision. Allow me to

explain my concerns under the following headings.

¶ 65 A. Disorderly Conduct

¶ 66 The majority writes: “Summers was justified in attempting to effectuate a Terry

stop to further investigate whether defendant committed disorderly conduct.” Supra ¶ 35. I

disagree.

¶ 67 To commit disorderly conduct, defendant would have had to cause a breach of the

peace: He would have had to “incite[ ] public turbulence” and “destroy[ ] or menac[e] public

order and tranquility.” (Internal quotation marks omitted.) People v. Allen, 288 Ill. App. 3d 502,

506 (1997); see also People v. Bradshaw, 116 Ill. App. 3d 421, 422 (1983); People v. Kellstedt,

29 Ill. App. 3d 83, 85 (1975). The public’s sensibilities are tough enough that mere swearing,

typically, does not shatter the public order or threaten to do so. “Vulgar language, however

distasteful or offensive to one’s sensibilities, does not evolve into a crime because people

standing nearby stop, look, and listen. The State’s concern becomes dominant only when a

breach of the peace is provoked by the language.” (Internal quotation marks omitted.) Bradshaw,

116 Ill. App. 3d at 422.

¶ 68 Indeed, vulgarity is protected speech unless it disturbs the neighbors’ sleep at two

in the morning (People v. Albert, 243 Ill. App. 3d 23, 27 (1993)) or takes the form of fighting

- 21 - words, i.e., “personally abusive epithets which, when addressed to an ordinary citizen, as a

matter of common knowledge, are inherently likely to provoke violent reaction.” (Internal

quotation marks omitted.) Allen, 288 Ill. App. 3d at 507. Judging by the 911 caller’s

dispassionate report that defendant was “just acting erratically,” Summers lacked “a reasonable,

articulable suspicion” that defendant had breached the peace by uttering fighting words.

Luedemann, 222 Ill. 2d at 549. Defendant, apparently, was an eccentric—that was all. “[T]he

commonly held understanding of a breach of the peace has always exempted eccentric or

unconventional conduct, no matter how irritable to others.” (Internal quotation marks omitted.)

Allen, 288 Ill. App. 3d at 506.

¶ 69 Seeing no reasonable articulable suspicion of disorderly conduct, I do not even

reach the further question of whether a reasonable suspicion of disorderly conduct that is over

and done with by the time the police arrive can justify a Terry stop. See 4 Wayne R. LaFave,

Search and Seizure § 9.2(c) (5th ed. 2012), at 396-97 (arguing that “[t]he Terry rule should be

expressly limited to investigation of serious offenses” and warning that “[t]he circumstances

which might lead an officer to suspect that a person is committing such a crime as *** disorderly

conduct are sufficiently diverse and diffuse that their inclusion might mean a large and hard-to-

review expansion of coercive authority.” (Internal quotation marks omitted.)).

¶ 70 B. Flight From the Police

¶ 71 1. Thomas

¶ 72 One would think, from the majority’s explication of Thomas, that all a police

officer has to do is dash toward some hapless person, in an “effort to effect an unwarranted

investigatory stop,” and if the person is timorous enough to run, the police have reasonable

suspicion for a Terry stop—and, what is more, the reasonable suspicion immediately morphs into

- 22 - probable cause to arrest the one fleeing for obstructing a police officer. Thomas, 198 Ill. 2d at

113.

¶ 73 It is true that the supreme court said in Thomas: “Unprovoked flight in the face of

a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and

investigatory stop” (id. at 113), but the critical word here is “may”; behind that word are some

important facts in Thomas that the majority, in its discussion of the case, overlooks. Those facts

are fivefold: (1) the police officer noticed that the defendant was holding a police scanner, which

enabled the defendant to monitor police radio transmissions; (2) the police officer previously had

arrested the defendant for drug offenses; (3) the police officer had learned of a confidential tip

that the defendant had been using a bicycle to deliver narcotics, most often in the evening; (4) the

defendant was presently on a bicycle (and holding the police scanner); and (5) it was 11:30 p.m.

Id. at 106. The supreme court agreed with the appellate court that those five facts were

insufficient, in themselves, to arouse reasonable suspicion and that the attempted Terry stop was,

therefore, unjustified. Id. at 110. Nevertheless, when the defendant ran at the approach of the

police, ditching his bicycle and his police scanner, the defendant’s flight, combined with those

other facts, aroused reasonable suspicion. See id. at 113-14.

¶ 74 It was not that the defendant’s flight alone aroused a reasonable suspicion of

criminal activity; that would be a caricature of Thomas. Rather, the defendant’s flight “credited

other information that [the police officer] possessed and gave rise to an articulable suspicion that

criminal activity was afoot.” (Emphasis added and internal quotation marks omitted.) Id. at 114.

¶ 75 2. Wardlow

¶ 76 Admittedly, the Supreme Court said in Wardlow: “Headlong flight—whenever it

occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is

- 23 - certainly suggestive of such.” 528 U.S. at 124. In the immediately preceding sentence of

Wardlow, however, the Supreme Court characterized “nervous, evasive behavior” as “a pertinent

factor in determining reasonable suspicion.” (Emphasis added.) Id. Flight is evasive behavior,

and, as such, it is a factor in determining reasonable suspicion. See id. If flight, by itself, aroused

reasonable suspicion, it would not be, as the Supreme Court said, “a pertinent factor”; it would

be the one and only all-sufficient consideration. Id. But it is not. The majority in Wardlow, as the

partial concurrence observed, rejected the pat formulation that flight equals reasonable suspicion

(id. at 126-27 (Stevens, J., concurring in part and dissenting in part, joined by Souter, Ginsburg,

and Breyer, JJ.)); “[t]he concept of reasonable suspicion *** is not readily, or even usefully,

reduced to a neat set of legal rules, but must be determined by looking to the totality of the

circumstances—the whole picture” (Internal quotation marks omitted.) (id.) (Stevens, J.,

concurring in part and dissenting in part, joined by Souter, Ginsburg, and Breyer, JJ.)).

¶ 77 All the facts, all the circumstances—not just flight—have to be taken into

account. See id. at 124 (majority opinion). Flight has to be evaluated in its factual context, and

context can make all the difference. See id. For instance, unprovoked flight in an area of heavy

narcotics trafficking justified a Terry stop: That was the Supreme Court’s holding in Wardlow.

Id. at 124-25.

¶ 78 Thus, in Wardlow, the Supreme Court of the United States disagreed with the

Illinois Supreme Court that “sudden flight in [a high crime] area [did] not create a reasonable

suspicion justifying a Terry stop.” Id. at 122. But the Supreme Court of the United States

expressed no disagreement at all with our supreme court’s position that flight at the approach of

the police, without more, was insufficient to justify a Terry stop (People v. Wardlow, 183 Ill. 2d

306, 312 (1998), rev’d on other grounds sub nom. Illinois v. Wardlow, 528 U.S. 119 (2000)).

- 24 - Therefore, absent some contrary indication by our supreme court, that position remains binding

law in Illinois. And such has been the understanding of the appellate court—until now. See

Hyland, 2012 IL App (1st) 110966, ¶ 32 (“It is well settled that flight alone is not sufficient to

establish reasonable suspicion that a person has committed, or is about to commit, a crime.”);

Harris, 2011 IL App (1st) 103382, ¶ 12.

¶ 79 C. A Completed, as Opposed to an Ongoing, Crime

¶ 80 In Navarette, the Supreme Court stated that “[e]ven a reliable tip will justify an

investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’ ”

Navarette, 572 U.S. at ___, 134 S. Ct. at 1690 (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).

“Afoot” means “in action” or “in progress” (The Merriam-Webster Dictionary 13 (2004)), and

there can be no doubt that the Supreme Court used that word by design, because in the next

sentence the Supreme Court wrote: “We must therefore determine whether the 911 caller’s report

of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk

driving as opposed to an isolated episode of past recklessness.” Navarette, 572 U.S. at ___, 134

S. Ct. at 1690. The Supreme Court decided that the reliable tip of having been run off the

roadway raised a reasonable suspicion of drunk driving, which was an ongoing crime, and that

“[t]he stop was therefore proper.” Id. at ___, 134 S. Ct. at 1690.

¶ 81 This passage in Navarette could easily—and understandably—create the

impression that a reliable tip will justify a Terry stop only if it arouses a reasonable suspicion of

ongoing criminal activity as opposed to a completed crime. See Lopez, 2018 IL App (1st)

153331, ¶¶ 24-28. I am not quite convinced, however, that the Supreme Court intended to lay

down that categorical rule, considering that in a footnote to the passage, the Supreme Court cited,

with no apparent disapproval, its previous decision in United States v. Hensley, 469 U.S. 221,

- 25 - 229 (1985). “Because we conclude,” the footnote in Navarette reads, “that the 911 call created

reasonable suspicion of an ongoing crime, we need not address under what circumstances a stop

is justified by the need to investigate completed criminal activity.” Navarette, 572 U.S. at ___,

134 S. Ct. at 1690 n.2. At the cited page of Hensley, the Supreme Court had held that, “if police

ha[d] a reasonable suspicion, grounded in specific and articulable facts, that a person they

encounter[ed] was involved in or [was] wanted in connection with a completed felony, then a

Terry stop [might] be made to investigate that suspicion.” (Emphasis added.) Hensley, 469 U.S.

at 229. But Hensley had expressly left for another day the question of “whether Terry stops to

investigate all past crimes, however serious, [were] permitted.” Id. In other words, Hensley never

reached (because it did not have to reach) the territory of nonfelonious offenses: whether a

reasonable suspicion that someone had consummated, in the past, an offense less serious than a

felony would justify a Terry stop of that person. (In this context, probable cause must not be

confused with reasonable suspicion: If a police officer sees someone run a red light, it is a past

crime as opposed to an ongoing crime, but the police officer has probable cause that the driver

committed this petty offense, not just reasonable suspicion.)

¶ 82 Because reckless driving was punishable, under California law, by incarceration

for no more than 90 days (Cal. Veh. Code § 23103(c) (West 2011)), it was not a felony. See

Black’s Law Dictionary (11th ed. 2019) (defining a “felony” as “[a] serious crime usu[ally]

punishable by imprisonment for more than one year or by death”). Therefore, unless the Supreme

Court in Navarette had found “reasonable suspicion of an ongoing crime such as drunk driving

as opposed to an isolated episode of past recklessness,” the Supreme Court might have had to

answer the question left unanswered in Hensley: whether the reasonable suspicion of a

completed misdemeanor such as reckless driving, committed in the past, justified a Terry stop.

- 26 - See Navarette, 572 U.S. at ___, 134 S. Ct. at 1695 n.3 (Scalia, J., dissenting, joined by Ginsburg,

Sotomayor, and Kagan, JJ.).

¶ 83 It seems to me, then, that the point of the passage in Navarette was not, as the

majority in this case suggests, to indicate “the Court’s understanding of the seriousness of the

circumstances as understood by the police officer who made the stop.” Supra ¶ 47. The point,

rather, was to establish that there was no need to address the unanswered question in Hensley.

¶ 84 I need not address the unanswered question in Hensley, either. Defendant’s

suspected trespasses were ongoing; he was in the process of cutting through yards in his

continuing attempt to escape the police. Suspected trespassing was “ ‘afoot.’ ” Id. at ___, 134 S.

Ct. at 1690 (majority opinion) (quoting Terry, 392 U.S. at 30).

- 27 - No. 4-17-0064

Decision Under Review: Appeal from the Circuit Court of Adams County, No. 16-CF- 269; the Hon. Scott J. Butler, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Katie Anderson, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Gary L. Farha, State’s Attorney, of Quincy (Patrick Delfino, for David J. Robinson, and Benjamin M. Sardinas, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

- 28 -