2020 IL App (1st) 190591-U
FIFTH DIVISION March 31, 2020
No. 1-19-0591
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) No. 18 CR 323401 ) WILLIAM ROBINSON, ) Honorable ) Domenica Stephenson, Defendant-Appellee. ) Judge Presiding.
JUSTICE DELORT delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s decision to grant the defendant’s motion to suppress evidence obtained following an investigatory Terry stop. We find police officers lacked a reasonable articulable suspicion to conduct the investigatory stop.
¶2 Defendant William Robinson was charged with multiple offenses after police officers
recovered a firearm from his person. He moved to suppress evidence, arguing that the underlying
investigatory stop and search was unreasonable, and that he was subjected to an unlawful arrest
without probable cause. The circuit court granted defendant’s motion. The State filed a motion to 1-19-0591
reconsider, which was denied. The State has filed a certificate of impairment, and appeals. We
affirm.
¶3 BACKGROUND
¶4 On February 14, 2018, Chicago police officers on patrol observed defendant walk across a
street while clenching his right hand against his waist and upper thigh, with his left hand swinging
freely. When defendant saw the officers’ squad car approach, he began to walk swiftly towards a
parked car and entered the passenger-side door. The officers parked directly next to the vehicle
defendant had entered. One of the officers approached the passenger-side door and confronted
defendant, who was manipulating his waist area with his hand. After recognizing a bulge in
defendant’s waistband consistent with a firearm, the officer recovered a handgun. Following his
arrest, the State charged defendant with multiple offenses, including armed habitual criminal (720
ILCS 5/24-1.7(a) (West 2016)), unlawful use or possession of a weapon by a felon (720 ILCS
5/24-1.1(a) (West 2016), and aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1)
(West 2016)). Defendant filed a pretrial motion to quash arrest and suppress evidence, arguing that
the underlying stop and search was unreasonable, and that he was subjected to an unlawful arrest
without probable cause. He contended that his conduct before being stopped did not provide the
officers with a reasonable, articulable suspicion that he had committed or was about to commit a
crime.
¶5 At the suppression hearing, Chicago police officer Michael Callahan testified that during
the evening of February 14, 2018, he and his partner, Officer Murphy, were on a directed patrol in
the vicinity of the 1200 block of South Troy Street. Officer Callahan served on a unit known as
the “Area Central Gun Team,” which assigned officers to work directed patrols in districts that
experienced a spike in crime or a flurry of shootings arising from gang conflicts. A person had
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been shot in the same neighborhood at around 5:19 p.m. that day. Officers Callahan and Murphy
were directed to patrol the same area to prevent a retaliatory shooting. The officers were not
provided with any identifiable characteristics of the individual who committed the earlier shooting.
They patrolled the area in an unmarked squad car equipped with municipal police license plates,
emergency lights, and sirens.
¶6 At around 9:55 p.m., Officer Callahan first saw defendant from a distance of 30 to 35 feet
walking southbound in the middle of 1200 South Troy Street. Defendant had nothing in his hands,
but, while walking, he clenched his right hand against the waist and upper thigh area of his
sweatpants. His left hand swung freely. Officer Callahan demonstrated his observations of
defendant to the circuit court.
¶7 Officer Callahan stated that he had observed similar conduct previously 30 to 40 times.
Based on those observations, he believed that defendant was holding a gun on the side of his pants.
¶8 Officer Callahan continued to drive northbound on Troy for another 15 to 20 feet. He
observed defendant for an additional five seconds. At that point, defendant saw the squad car,
turned, and walked swiftly towards a gold-colored sedan parked on the street. Defendant entered
the passenger-side door of the vehicle. Officer Callahan did not activate the lights or sirens in his
squad car, nor did he yell, “police,” or order defendant to stop. Instead, Officer Callahan parked
his squad car directly next to the gold sedan defendant had just entered. No cars were parked in
front of or behind defendant’s vehicle. Officer Callahan exited his squad car and approached the
passenger-side door while Officer Murphy walked to the driver-side door, where another
individual, Everett Rice, sat. Both officers wore their badges. At that time, Officers Callahan and
Murphy were the only officers present at that location.
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¶9 When Officer Callahan arrived at the passenger-side door, he saw defendant manipulating
his waist area with his right hand. He saw a hard bulge underneath the right waistline of defendant’s
sweatpants that appeared to be the size and shape of a handgun. Defendant manipulated the same
area of his waistband that Officer Callahan previously had observed as defendant walked in the
middle of the street moments earlier. Officer Callahan demonstrated to the circuit court how
defendant manipulated his hand along his waistband while sitting in the parked car.
¶ 10 Based on these observations, Officer Callahan believed defendant was concealing a
handgun and ordered him and Rice to raise their hands and turn off the vehicle. Officer Callahan
testified that, at this point, defendant was not free to leave. He drew his service weapon and pointed
it at defendant for his own safety and the safety of his partner and Rice.
¶ 11 Instead of raising his hands, defendant attempted to shift the vehicle from park to drive
with his left hand. Defendant continued to fidget with the area around his waist using his right
hand. Rice, sitting in the driver’s seat, complied with the officers’ orders and raised his hands.
¶ 12 Officer Callahan directed defendant eight or nine times to raise his hands and defendant
did not comply. Rice turned off the engine of his vehicle in compliance with the officers’ orders,
however, defendant then used his left hand to turn the key to the ignition back on. At that point,
additional police officers arrived at the scene. When those officers approached the vehicle,
defendant complied with the order to raise his hands.
¶ 13 Chicago police officer Haney was one of the officers who arrived at the scene. He wore a
body camera that recorded video the State submitted as evidence during the suppression hearing.
The video showed Officer Haney approaching Rice’s vehicle with his gun drawn. Officer Callahan
is heard on the video saying, “gun,” to alert the other officers of the presence of a weapon on
defendant’s person. Officer Callahan holstered his service weapon, opened the passenger-side
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door, and felt the bulge over defendant’s waistband. He recognized the bulge as a semiautomatic
handgun and reached underneath defendant’s waistband to recover the weapon. Officer Callahan
then removed defendant from the vehicle and placed him in handcuffs.
¶ 14 Afterwards, Officer Callahan conducted a pat-down search of defendant. Neither an arrest
warrant nor an investigative alert had been issued for defendant. Officer Callahan asked defendant
if he had a firearm owner’s identification card to carry a concealed weapon. Defendant responded
that he did not. Officer Callahan placed defendant under arrest.
¶ 15 Following the parties’ arguments on defendant’s motion, the circuit court issued its ruling.
The court first found that the encounter between defendant and the officers was not consensual.
The court ruled that the officers had a reasonable, articulable suspicion to conduct an investigatory
stop of defendant. The court, however, concluded that the officers did not have probable cause
until after they had recovered the handgun.
¶ 16 The circuit court further explained:
“The officers were acting on a hunch. It was a very reasonable hunch, but it doesn’t
elevate to probable cause. It’s a search when the officer reaches in and grabs the
gun. That’s clearly a search. The defendant was not free to leave. * * * [T]he seizure
of the gun was without probable cause. And they also didn’t know if the defendant
had a concealed carry at that point. So based upon all of that, your motion to quash
arrest and suppress evidence is granted.”
¶ 17 The State filed a motion to reconsider. After hearing argument on the motion, the circuit
court clarified its initial ruling, finding “although I said there was a reasonable articulable suspicion
for an investigatory stop, in looking at it more carefully, it appears that this was really nothing
more than a hunch. When the officers saw the defendant walking down the street holding his pants,
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it was a hunch that he had a gun, but [they weren’t] certain.” Further, the court found that once the
officers parked next to Rice’s vehicle and approached, the officers conducted an illegal seizure of
defendant. The court reiterated that the officers did not have probable cause until recovering the
handgun from defendant. The court denied the State’s motion to reconsider. The State filed a
certificate of impairment and appealed.
¶ 18 ANALYSIS
¶ 19 The State argues that the investigatory stop of defendant was justified. The State contends
that several specific articulable facts warranted the investigatory stop, including: (1) the location
of the investigatory stop in a high crime area, where a person had been shot hours earlier one block
away; (2) defendant’s clenching of his arm against his sweatpants in a manner consistent with
concealing a handgun; and (3) defendant’s evasive behavior. The State also argues that the limited
search for weapons was justified because the officers had reason to believe defendant was armed
and dangerous.
¶ 20 Standard of Review
¶ 21 A reviewing court applies a two-part standard of review to a trial court’s ruling on a motion
to quash arrest and suppress evidence. People v. Hopkins, 235 Ill. 2d 453, 471 (2009). We defer
to a circuit court’s factual findings and will reverse those findings only if they are against the
manifest weight of the evidence. Id. However, a reviewing court is free to undertake its own
assessment of the facts in relation to the issues presented and draw its own conclusions in deciding
what relief, if any, should be granted. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). We
review de novo the circuit court’s ultimate legal ruling on a motion to suppress. Id.
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¶ 22 Terry Stop
¶ 23 The United States and Illinois Constitutions guarantee citizens the right against
unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Ill. Const. 1970, art. I, §
6. “Reasonableness under the fourth amendment generally requires a warrant supported by
probable cause.” People v. Sanders, 2013 IL App (1st) 102696, ¶ 12. However, our supreme court
has recognized three types of police-citizen encounters that do not constitute an unreasonable
seizure: (1) arrests, which must be supported by probable cause; (2) a brief investigative stop, also
known as a “Terry stop” under Terry v. Ohio, 392 U.S. 1 (1968); and (3) encounters that do not
involve coercion or detention and therefore do not implicate fourth amendment
interests. Luedemann, 222 Ill. 2d at 544.
¶ 24 In Terry, the United States Supreme Court held that “an officer may, within the parameters
of the fourth amendment, conduct a brief, investigatory stop of a citizen when the officer has a
reasonable, articulable suspicion of criminal activity, and such suspicion amounts to more than a
mere ‘hunch.’ ” People v. Gherna, 203 Ill. 2d 165, 177 (2003) (quoting Terry, 392 U.S. at 27).
During a Terry stop, an officer may temporarily detain an individual for questioning where the
officer reasonably believes the individual has committed, or is about to commit, a crime. Terry,
392 U.S. at 21-22.
¶ 25 To justify a Terry stop, officers must be able to point to specific and articulable facts which,
considered with the rational inferences from those facts, make the intrusion reasonable. Sanders,
2013 IL App (1st) 102696, ¶ 14; People v. Rhinehart, 2011 IL App (1st) 100683, ¶ 14. Although
reasonable suspicion is a less stringent standard than probable cause, an officer’s hunch or
unparticularized suspicion is insufficient. People v. Lampitok, 207 Ill. 2d 231, 255 (2003). When
determining whether an investigatory stop is reasonable, we rely on an objective standard and view
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the facts from the perspective of a reasonable officer at the time of the stop. Sanders, 2013 IL App
(1st) 102696, ¶ 14. Nervous, evasive behavior is a pertinent factor in determining reasonable
suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). While an individual’s mere presence
in a “high crime area” is insufficient by itself to support a reasonable, particularized suspicion that
the person is committing a crime, the United States Supreme Court has held that “the fact that the
stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry
analysis.” Id. at 124 (citing Adams v. Williams, 407 U.S. 143, 144, 147-148 (1972)). A decision
to make a Terry stop is a practical one based on the totality of the circumstances. Sanders, 2013
IL App (1st) 102696, ¶ 14.
¶ 26 The State argues that, in this case, the totality of the circumstances warranted the
investigatory stop. In support of their argument, they cite two recent decisions from this court,
People v. Salgado, 2019 IL App (1st) 171377 and People v. Johnson, 2019 IL App (1st) 161104.
¶ 27 In Salgado, police officers were directed to patrol a neighborhood due to retaliatory
shootings between rival gangs that had occurred in the area. The officers made eye contact with
the defendant, who had been walking with another man on a sidewalk. Defendant and the other
man immediately separated and walked in different directions. The defendant was adjusting and
grabbing at his waistband. Chicago police sergeant Ricky Rivera testified at the suppression
hearing that he clearly saw a visible bulge protruding from the defendant’s waistband. The officers
drove past the defendant and stopped their vehicle. Sergeant Rivera, with his body camera
recording, exited and approached the defendant, who continued to grasp at his waistband. When
he reached the defendant, he asked him whether he had any weapons in his possession. The
defendant responded “no,” and continued to walk past him. Sergeant Rivera asked the defendant
to lift up his t-shirt so he could “see.” The defendant responded, “I don’t have to” and
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simultaneously grabbed the object in his waistband. Sergeant Rivera immediately placed his hand
on the object, which was covered by the defendant’s shirt. He recovered a loaded handgun that
had its serial numbers removed. Defendant was placed under arrest. Salgado, 2019 IL App (1st)
171377, ¶ 5.
¶ 28 The defendant filed a motion to quash and supress the evidence of the investigatory stop.
The circuit court denied the defendant’s motion and he appealed, arguing that he was seized for
the purposes of the fourth amendment immediately upon the officers’ arrival, when Sergeant
Rivera exited a still moving vehicle to approach him. Salgado, 2019 IL App (1st) 171377, ¶ 11,
18.
¶ 29 The Salgado court found that the manifest weight of the evidence supported the officers’
investigatory stop of the defendant. Salgado, 2019 IL App (1st) 171377, ¶ 32. The investigatory
stop occurred in a high crime area and the officers conducted a directed patrol to prevent retaliatory
gang shootings. However, the court noted that the defendant’s mere presence in that area did not,
standing alone, justify a Terry stop. The court also pointed to the defendant’s conduct upon making
eye contact with Sergeant Rivera. In particular, the body camera footage revealed that the
defendant was nervous, fidgety and he held the inside of his left arm close to the item and in a
manner that could support the reasonable inference that he was attempting to shield it from view.
Sergeant Rivera believed, at this point, that the defendant was in possession of a firearm. The court
held that, “in light of the trial court’s factual findings and given the totality of the circumstances,
defendant’s presence in a high crime area where retaliatory gunfire had been exchanged between
rival gangs, his actions upon seeing the police and more importantly, defendant’s unusual conduct-
based fixation with an item in his waistband, together gave rise to a reasonable suspicion that
criminal activity was afoot such that Sergeant Rivera’s actions were justified.” Id.
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¶ 30 In Johnson, police officers in an unmarked vehicle patrolled in “an area known for high
narcotic and gang activity.” 2019 IL App (1st) 161104, ¶ 3. One of the officers observed the
defendant standing in the middle of an alley. The defendant turned toward the officers, saw them,
and then “grabbed onto the front of his waistband and continued walking briskly eastbound as if
to avoid” them. Id. An officer testified at the suppression hearing that this gesture is common “for
people who are trying to hold onto and conceal a weapon.” Id. As the officers chased the defendant,
he held onto his waistband to secure an object and jumped onto the hood of one of the squad cars
in pursuit. At that point, the officers patted down the defendant and found a loaded semiautomatic
handgun. The defendant argued that the officers did not have a sufficient basis to subject him to a
Terry stop and pat down since “all he was doing was standing in an alley and touching his
waistband.” Id. ¶ 6.
¶ 31 The circuit court recognized that the defendant had a right to be in the alley, but he was in
a high crime area and motioned towards his waistband, which the officers believed indicated that
he was armed. The court found that the defendant was not detained until after he ran and jumped
onto the hood of the squad car, at which point the officers had an articulable suspicion to detain
him and pat him down. Id. ¶ 8.
¶ 32 The Johnson court considered the defendant’s late-night presence in a high-crime area, his
retreat upon seeing the officers, and his conduct in holding his waistband and ultimately jumping
onto the hood of the police vehicle, all of which gave rise to a reasonable articulable suspicion of
criminal activity. Id. ¶ 16. In particular, the defendant’s leap onto the hood of the squad car “was,
to say the least, an unusual act, which suggested aggression and potential danger to the officers or
others, regardless of the neighborhood in which it occurred.” Id. The court found that this conduct,
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along with the other evidence, supported a finding of a reasonable suspicion that the defendant
was committing, or was about to commit, a crime, thereby justifying the Terry stop. Id.
¶ 33 Initially, we find that, unlike Salgado and Johnson, the State failed to present evidence
demonstrating that the location where the police officers conducted the investigatory stop was a
high crime area. Indeed, the circuit court made no factual finding as to whether the location of the
investigatory stop was considered to be a high crime area. “A conclusory and unsubstantiated
statement that a location is a ‘high crime area’ is insufficient to establish that consideration for
purposes of justifying a Terry stop.” People v. Harris, 2011 IL App (1st) 103382, ¶ 14.
¶ 34 In this case, aside from Officer Callahan’s testimony that an apparent gang-related shooting
occurred only hours before and that he and Officer Murphy were assigned to the area to prevent a
retaliatory shooting, the State introduced no evidence, either by way of experience or objective
knowledge, concerning the level of crime in the area where defendant was stopped. Accordingly,
we reject the State’s conclusory and unsupported argument that defendant was stopped in a high
crime area.
¶ 35 Officer Callahan testified that his attention was drawn to defendant because his right arm
seemed to be clenched against the right side of waist and upper thigh area of his sweatpants, but
the left side of his body appeared to be moving normally. Officer Callahan believed that
defendant’s movements were consistent with concealing a firearm on the side of his pants based
on approximately 30 to 40 previous observations of similar conduct.
¶ 36 Here, however, unlike Salgado, Officer Callahan did not see any visual bulge in the
defendant’s clothing prior to making the investigatory stop. Further, defendant did not grab at his
waistband like the defendant in Johnson.
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¶ 37 The case of People v. F.J., 315 Ill. App. 3d 1053 (2000), is instructive. There, we held that
the police officer lacked reasonable suspicion to conduct an investigatory stop of a juvenile. The
State offered as the basis for the stop factors including that “it was night, there had been a ‘gang
disturbance’ nearby, it was a high crime area, and [the respondent] put something in his pocket.”
Id. at 1057. The police officer testified that “he had no idea what the object was.” Id. at 1058. The
officer “did not testify that it looked like a handgun or contraband or anything that would naturally
arouse suspicion.” Id. We concluded that the State failed to provide the “specific and articulable
facts from which the officer reasonably inferred that [the respondent] was involved in criminal
activity.” Id.
¶ 38 In this case, Officer Callahan testified only that defendant’s right arm was clenched against
the waist and upper thigh of his sweatpants. He did not testify that he saw defendant with any
object or appear to grasp at any object. Nor did he testify that he believed defendant had any object
in his hands, rather, he specifically testified that defendant did not have anything in his hands.
Officer Callahan’s belief that defendant’s unusual movement was indicative of his attempt to
conceal a weapon, without more reasonable articulable facts, amounted to nothing more than a
hunch.
¶ 39 The State further contends that the totality of circumstances shows defendant’s evasive
conduct. In Wardlow, the respondent had fled upon seeing police patrolling an area known for
heavy narcotics trafficking. Id. at 121. The Wardlow Court noted that it had “recognized that
nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Id. at 124.
The court additionally noted that: “[h]eadlong flight—wherever it occurs—is the consummate act
of evasion.” Id.
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¶ 40 However, the Supreme Court also explained in Wardlow that “its holding therein was
consistent with an individual’s right to go about his business when confronted by a police officer
lacking reasonable suspicion or probable cause to detain him, and distinguished flight from merely
going about one’s business.” See People v. Kipfer, 356 Ill. App. 3d 132, 140 (2005) (“we cannot
conclude that [the police officer’s] scant suspicion or hunch about defendant ripened into a
reasonable suspicion that defendant was about to burglarize a vehicle, rob or assault someone,
simply because defendant continued to walk away while [the officer] sounded his horn and asked
defendant to stop”).
¶ 41 Although evasive behavior can include actions short of fleeing, defendant in this case saw
the officers, turned, and swiftly walked towards a parked vehicle and entered it. It was possible
that defendant intended, all along, to turn in a different direction and go about his business. The
State presented insufficient evidence demonstrating that defendant attempted to flee.
¶ 42 The totality of the circumstances here—defendant’s unnatural movement, his turning to
walk in a different direction, and entering Rice’s vehicle, was insufficient to create reasonable
suspicion in a police officer that defendant had committed, or was about to commit, a crime.
¶ 43 Although the State points to additional actions on the part of defendant, for example, his
fidgeting with something in his waist while sitting in Rice’s car, these occurred after the stop.
Under Terry, the reasonableness of police action taken during an investigative detention involves
a dual inquiry: (1) whether the officer’s action was justified at its inception; and (2) whether the
officer’s action was reasonably related in scope to the circumstances which justified the
interference in the first place. People v. Moss, 217 Ill. 2d 511, 527 (2005). “Whether an
investigatory stop is valid is a separate question from whether a search for weapons is valid.”
People v. Flowers, 179 Ill. 2d 257, 263 (1997) (citing People v. Galvin, 127 Ill. 2d 153, 163
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(1989)). Any additional actions taken by defendant after the stop are irrelevant to the analysis of
whether the initial stop was valid. Since the initial stop was invalid, the subsequent actions of
Officer Callahan were not justified. “[A] frisk presupposes the right to make a stop.” F.J., 315 Ill.
App. 3d at 1059 (citing Terry, 392 U.S. at 32 (Harlan, J., concurring)) (“if a policeman has a right
* * * to disarm such a person for his own protection, he must first have a right not to avoid him
but to be in his presence”).
¶ 44 Since the evidence did not show that the police had specific and articulable facts justifying
the Terry stop, the protective search performed during that stop also lacked a sound constitutional
basis.
¶ 45 CONCLUSION
¶ 46 Accordingly, the circuit court’s judgment granting defendant’s motion to suppress is
affirmed.
¶ 47 Affirmed.