People v. Moore

Procedural entryThis page is a short order in People v. Moore. Read the opinion of the Court — 286 Ill. App. 3d 649
Appellate Court of Illinois·Decided February 7, 1997·No. 3-96-0608·Published

Opinion

                             No. 3--96--0608

_________________________________________________________________

                               IN THE

                              APPELLATE COURT OF ILLINOIS

                              THIRD DISTRICT

                              A.D. 1997

_________________________________________________________________

THE PEOPLE OF THE STATE OF     )   Appeal from the Circuit Court

ILLINOIS,                      )   of the 21st Judicial Circuit,

                              )   Kankakee County, Illinois

    Plaintiff-Appellant,      )   

                              )

       v.                     )   No. 95--CF--433

                              )

FA-RD MOORE,                   )   Honorable

                              )   Daniel W. Gould,

    Defendant-Appellee.       )   Judge Presiding

_________________________________________________________________

JUSTICE McCUSKEY delivered the opinion of the court:

_________________________________________________________________

    Pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R.

604(a)(1)), the State appeals from an order of the circuit court of

Kankakee County which granted a motion to suppress evidence filed

by the defendant, Fa-Rd Moore.  The State argues that the trial

court erred when it granted the motion to suppress.  Following our

careful review of the record, we affirm.

                                  FACTS                         

    The defendant was charged by indictment with unlawful

possession of more than 1 gram but less than 15 grams of a

substance containing cocaine with intent to deliver (720 ILCS

570/401(c)(2) (West 1994)).  The defendant filed a motion to

suppress evidence which alleged that the search of his person was

in violation of his fourth amendment rights.

    A hearing was held on the defendant's motion on June 28, 1996.

The defendant called two witnesses, David Williams and Ruben

Bautista.  Williams testified that he was a police officer with the

sheriff's department.  On July 18, 1995, he was participating with

officers from various jurisdictions in a detail to identify gang

members.   As part of this detail, he went to Gibbs Tavern in

Hopkins Park, Pembroke Township.  Williams testified that he had

been at Gibbs Tavern many times because of criminal activity at

that location.

    Williams saw a male subject, later identified as the

defendant, running in front of the tavern.  He saw Officer Bautista

chasing the defendant and heard Bautista say, "stop, police."

Williams joined in the chase and also told the defendant to stop.

    Bautista testified that he was an officer with the Illinois

State police.  On July 18, 1995, he was assigned to the gang crime

unit.  Bautista was wearing a gang tactical outfit consisting of a

State police T-shirt with a badge on his left chest, a web gear

belt with a badge and radios and a State police ball cap.  Bautista

arrived at Gibbs Tavern at approximately 11:40 p.m.  Bautista

stated that the tavern was frequented by gang members and that many

narcotic activities and shootings have occurred at that location.

    Bautista saw the defendant next to a van parked in front of

the tavern entrance.  The defendant was talking to someone sitting

inside the van.  Bautista, who was 75 to 100 feet away, then saw

what appeared to be an exchange of money.  Bautista testified that

he was not able to tell who was giving or receiving the money or if

anything else was exchanged.  He admitted that, because of the

distance and lack of light, he was not able to determine if the

exchange he saw was part of an illegal transaction.  

    Bautista testified that after making his observation, he began

walking toward the van.  He said the defendant saw him approaching

and began to walk away from the van.  Bautista advised the

defendant that he was a State police officer.  The defendant began

to walk faster, and Bautista started to chase him.  The defendant

started running and turned into an alleyway.  Williams joined in

the chase and was able to tackle the defendant.  A plastic bag of

cocaine was found on the defendant as a result of a pat down search

for weapons conducted by Williams.  

    Following Bautista's testimony, defense counsel argued that

the police did not have any indication that the defendant was

involved in a crime prior to the chase.  The State contended that

Bautista was  approaching the defendant to ask him questions and

properly seized the defendant based upon his "attempt to elude the

police in violation of our statute prohibiting [resisting] or

obstructing a police officer."   

    The trial court granted the defendant's motion to suppress.

The trial judge explained his decision by stating:

                              "Officer Bautista, as many police

         officers, [has] acquired a divine sense of

         right and wrong.  And although he could not

         actually see the exchange of money and drugs,

         he saw what appeared to be the exchange of

         money.  And based on that sixth sense, maybe

         not divine sense, sixth sense, he believed

         that a drug sale was going on."

         However, the trial judge stated that he could not say Bautista's

observation was "grounds to believe a person is committing an

offense thereby invoking the resisting or obstructing statute.

That is just too tenuous."  The judge concluded that more

articulable facts were needed than existed in this case.  The trial

judge also stated that a ruling in favor of the State would mean

that a person did not have the right to walk away any time a police

officer saw "an exchange of hands, whether it was paying off a bet,

buying drugs, a shake of hands, paying my share of whatever we had

for dinner tonight."  

    Following this ruling, the State filed a timely notice of

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