NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2024 IL App (3d) 220456-U
Order filed January 16, 2024 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0456 v. ) Circuit No. 21-CM-975 ) BRANDON L. TATUM, ) Honorable ) Chrystel L. Gavlin, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Peterson and Davenport concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The State presented insufficient evidence to convict the defendant of resisting a peace officer.
¶2 The defendant, Brandon L. Tatum, appeals his conviction of resisting a peace officer,
arguing that the evidence was insufficient to find him guilty beyond a reasonable doubt.
¶3 I. BACKGROUND ¶4 The State charged the defendant by information with resisting a peace officer (720 ILCS
5/31-1(a), (a-5) (West 2020)) in that he knowingly resisted “a peace officer engaged in the
execution of his official duties” when the defendant “pulled his arm away during handcuffing.”
The matter proceeded to a jury trial.
¶5 Officer Noe Mozo testified that on May 11, 2021, he was being field trained by Officer
Antwane Windmon for the Metra Commuter Agency while they patrolled the Metra stations.
General patrol duties included checking for “property damage, people sleeping inside the shelters,
and just anything that can be considered foul play.” At approximately 2 a.m., Mozo noticed a man
sleeping on a bench at the Joliet station while on his way to another station. Mozo did not stop at
that time. Approximately 30 or 40 minutes later, Mozo returned and observed “the same individual
sleeping on the same bench in the same form.” The defendant was lying on a bench with a blanket
covering his feet to his neck. When Mozo inquired why the defendant was at the station, the
defendant responded that he did not “have to tell” Mozo anything. The defendant refused to
provide his identification after multiple requests. Mozo also requested several times that the
defendant show his hands, which the defendant refused. Mozo explained that whether he could
“see a person’s hands” is a matter of officer safety. Based on the defendant’s “non-compliance,”
the officers went “hands on” and “plac[ed]” the defendant on the ground. Mozo was unable to gain
control of the defendant’s left arm, which was “tucked *** under [the defendant’s] chest,” and the
defendant was “very tense” and “kept pulling away.” Eventually, Windmon forced the defendant’s
compliance by using a taser.
¶6 On cross-examination, Mozo indicated that he could not identify the defendant as the
person lying on the bench when he first passed the station. Mozo testified that the train station was
a known location for loitering and trespassing. However, the station did not have any no trespass
2 signs or notices, the officers gave no verbal orders to the defendant to vacate the premises, and
they had not received any complaints about the defendant trespassing. Mozo explained that “[t]he
whole point of *** making contact was to gain experience seeing that I was a relatively new
officer, and the intention was to *** inform [the defendant] that he couldn’t be at the station.”
Mozo acknowledged that potential patrons must be on the platform to board the train. Counsel
asked if Mozo had “any reason to believe that there was a weapon underneath” the defendant’s
blanket. Mozo stated, “[w]e asked him to see his hands. Normally people that aren’t hiding
anything or don’t have anything usually show me their hands.” Mozo also stated that “the way that
[the defendant] was conducting himself *** alerted [Mozo] and alerted *** Windmon that [the
defendant’s] hands were underneath the blanket.” Following a search of the defendant and his
items, the officers did not locate any weapons.
¶7 Windmon testified that he approached the defendant for a trespassing investigation because
the station was closed and the trains were not running. Upon contact, the officers asked the
defendant to sit up and show his hands for officer safety and to “make sure he didn’t have any
weapons.” Windmon explained that the officers
“didn’t know what was under the [blanket]. [The defendant] could have had a
weapon, a gun. It could have been anything. So just to make sure he didn’t have
anything, we wanted to see his hands, *** have him sit up and we could have a full
view of his body.”
The defendant refused after multiple requests. Windmon described the defendant as “very
hostile[,]” “avoiding questions, cursing,” and “fully uncooperative.” Following these refusals to
cooperate, the officers detained the defendant in what Windmon described as a “Terry stop.” After
making physical contact, the defendant continued to refuse to comply when asked to place his arms
3 behind his back. Following Windmon’s warnings, he used a taser to “gain control of the
defendant’s arms.”
¶8 The State entered Windmon’s body camera footage of the incident into evidence. The video
showed the defendant instantly informing the officers that he was waiting for the train. Mozo
responded by asking the defendant for his name and identification. The defendant informed the
officers that he would not give them his information. Immediately after, officers ordered the
defendant to “sit up, take the blanket off” several times so they could see the defendant’s hands.
The defendant informed the officers that he was waiting for the train and knew when the train
arrived. Windmon stated that was “irrelevant.” Again, Windmon requested the defendant to
remove his blanket so he could “see [his] hands” and make sure he did not have any weapons. The
defendant indicated that he did not have any weapons and that he was not going to remove his
blanket because he was “not bothering nobody” and was “minding [his] business.” At this point,
the officers put their gloves on. The defendant indicated that his train was arriving at 4 a.m. Mozo
told the defendant that he “can’t be here.” Windmon informed the defendant that they had “zero
intentions of arresting” him, and again ordered the defendant to “sit up” and “take the blanket off.”
The defendant asked why the officers were bothering him, and Mozo responded that the defendant
refused to give them his identification. The defendant stated, “I don’t have to.” The officers
responded that the defendant had to give them his identification. When Windmon again asked for
his name, the defendant responded, “don’t worry about all that.” As the officers approached the
defendant, he removed both hands from under the blanket, one of which clearly held a cell phone.
Approximately three seconds later, Windmon made physical contact with the defendant by
grabbing the phone from his hands. In an apparent explanation for the contact, Windmon stated
that they asked the defendant “to do something” and he “didn’t want to do it.” During the
4 commotion, the defendant again informed the officers that he was waiting on the train and that he
had a ticket. A train horn can be heard in the background. After being put on the ground, the
defendant stated, “get the fuck away from me.” The officers began to place the handcuffs on the
defendant. The officers threatened to tase the defendant if he did not place both hands behind his
back. Approximately 12 seconds later, Windmon tased the defendant and secured handcuffs. After,
the defendant asked the officers, “this how you treat people who waiting on the train,” Mozo
responded, “we asked you to give us something.”
¶9 On cross-examination, Windmon stated that he saw the defendant’s hands holding a cell
phone and not a weapon before he made physical contact with the defendant. Windmon indicated
that they had not received complaints of the defendant trespassing. No signs were posted on the
platform preventing individuals from being there. Windmon did not ask the defendant to leave.
There are no gates or fences to prevent people from entering the platform when it is closed.
Windmon testified that “[a]s a representative of Metra,” he was “authorized to dictate when
somebody is trespassing.” Windmon stated that it was a Metra policy that forbids individuals from
being at the station “[i]f the trains aren’t running.” Windmon first observed the defendant at the
station at approximately 2 a.m., made contact around 3 a.m., and the first train would have been
arriving at 4 a.m. When asked whether it was “against the policy to be on the platform an hour
early” for a train, Windmon responded that the defendant was more than an hour early. Windmon
explained that he did not ask the defendant for his ticket because he “[n]ever got that far in the
conversation,” since the defendant “refused to comply with our first orders.”
¶ 10 On re-direct examination, Windmon stated that part of an investigation into trespassing
consisted of obtaining an individual’s identification and “securing” officer safety. Windmon
explained that he knew the Joliet Police Department told homeless individuals to go to the Metra
5 platform to “stay warm.” If these individuals “were under the impression that they could be there,”
Metra police would not arrest them for trespassing. Windmon testified that the defendant informed
the officers that he did not have any weapons, and the officers did not locate any weapons among
the defendant’s personal items. Windmon did not know if the defendant had been told by the Joliet
police to go to the platform, and he did not inform the defendant that he could not be there.
¶ 11 The defendant testified that on the date in question, he walked for approximately one hour
from the hospital to the Joliet station and was unsure exactly when he arrived. The defendant had
a ticket in his wallet for the train that he expected to arrive at approximately 4:30 a.m. to take him
to his job in Chicago. The defendant had his blanket, phone, phone charger, wallet, and
identification card. The defendant was watching videos on his phone while he waited for the train
when Mozo and Windmon confronted him. The officers first asked for the defendant’s
identification, and the defendant said he was not going to give it to them. The defendant was
“pissed” and felt like the officers were harassing him. The officers then began asking the defendant
to show his hands when “one thing led to another, and they grabbed [the defendant]” even though
his hands were “already visible.” They “thr[ew]” the defendant on the ground. The defendant stated
that one arm was already behind his back at this point, but the other arm was “stuck” under his
stomach. The defendant was not able to put that arm “all the way” behind his back due to nerve
damage from a prior injury. The defendant did not have any weapons on him. The defendant did
not see any signs that prohibited him from being at the station. He thought the station was open
because the lights were on in the “main” building, and this meant someone was working the ticket
counter.
¶ 12 On cross-examination, the defendant thought that the officers confronted him at
approximately 3:30 a.m. The defendant left the hospital shortly after 2 a.m. and arrived at the
6 station around 3 a.m. When the officers approached, the defendant had his arms under the blanket
to keep them warm. The defendant agreed that the officers first asked for his name and
identification, and the defendant refused to give them that information. At this point, the defendant
was still covered from the shoulders down. After several requests, the defendant removed his hands
from the blanket. When the officer saw the defendant’s phone, “that’s when he grabbed” him. The
defendant did not remember if he had his hands out of the blanket before or after the officers
approached him. On re-direct examination, the defendant indicated that he did not want to make
fast movements once the officers approached him. The defendant removed his hands from the
blanket with his phone to record the officers because he “felt like the situation might get out of
hand.”
¶ 13 The jury found the defendant guilty of resisting a peace officer. The court sentenced the
defendant to 24 months’ conditional discharge. The defendant appealed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the defendant argues that the State failed to present sufficient evidence to
sustain his conviction of resisting a peace officer. The defendant reasons, inter alia, that the
officers were not engaged in an authorized act to justify a Terry stop. In a challenge to the
sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Collins, 106
Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 318 (1979)). “When presented
with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the
defendant.” Id. Thus, “the reviewing court must allow all reasonable inferences from the record in
favor of the prosecution.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004). “A conviction will
7 be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it
justifies a reasonable doubt of the defendant’s guilt.” People v. Belknap, 2014 IL 117094, ¶ 67.
¶ 16 Here, the defendant was charged with resisting a peace officer, which required the State to
prove that the defendant knowingly resisted the performance of an individual he knew was a police
officer “of any authorized act within his *** official capacity.” 720 ILCS 5/31-1(a) (West 2020).
The act must be one that the officer was authorized to perform. People v. Hilgenberg, 223 Ill. App.
3d 286, 289 (1991). A Terry stop may be an authorized act that, if resisted, can be the basis of a
conviction for resisting a peace officer. People v. Johnson, 285 Ill. App. 3d 307, 309 (1996).
However, to be considered an authorized act, the officer must have observed unusual conduct
leading to a reasonable, articulable suspicion that the person in question has committed or is about
to commit a crime. 725 ILCS 5/107-14 (West 2020); see Terry v. Ohio, 392 U.S. 1, 21 (1968); see
also People v. Kipfer, 356 Ill. App. 3d 132, 137 (2005). Thus, if the officers were not engaged in
an authorized act or, otherwise stated, did not have a reasonable belief required under Terry to
justify an investigative stop when the defendant resisted, the defendant’s conviction must be
reversed. People v. Slaymaker, 2015 IL App (2d) 130528, ¶ 12.
¶ 17 Relevant factors to consider when determining whether an officer had reasonable suspicion
to conduct a Terry stop an individual include whether: (1) the stop occurred in a high crime area;
(2) it was late at night or early in the morning; (3) the person engaged in “unprovoked flight”
(Illinois v. Wardlow, 528 U.S. 119, 125 (2000)); and (4) the person’s behavior was consistent with
the officer’s knowledge of criminal activity. People v. Lozano, 2023 IL 128609, ¶ 38. “Viewed as
a whole, the situation confronting the police officer must be so far from the ordinary that any
competent officer would be expected to act quickly.” People v. Thomas, 198 Ill. 2d 103, 110
(2001). We must view the facts from the perspective of a reasonable officer in that situation, rather
8 than analytical hindsight. Id. The facts supporting the officer’s suspicion need not reach the level
of probable cause, but they must amount to more than a mere hunch. Id.
¶ 18 At the outset, we note that the officers conducted a Terry stop due to the belief that the
defendant could be trespassing. A person is guilty of trespassing when he or she, after receiving
notice, “knowingly and without lawful authority enters or remains within or on a building.” 720
ILCS 5/21-3(a)(1), (2) (West 2020); see also id. § 21-5 (a person commits criminal trespass to
State supported land when, after receiving notice “from the State or its representative that the entry
is forbidden”). At the time of the stop, the facts available to the officers were that members of the
Joliet Police Department were known to inform homeless individuals that they could use the Metra
platforms to get warm during inclement weather, and there were no signs posted on or around the
platform to inform anyone when they were or were not permitted to be on the platform. The
platform was open, and no gates or doors prevented entry, nor had the officers received any
complaints of an individual trespassing. While the officers saw someone on the platform at 2 a.m.,
they could not identify the defendant as that individual. The officers approached the defendant on
the platform at approximately 3 a.m., and the trains began running at 4 a.m. However, an individual
waiting for a train an hour early is not “so far from the ordinary that any competent officer would
be expected to act quickly.” Thomas, 198 Ill. 2d at 110. Further, at no point did the officers order
the defendant to leave. The defendant had no notice to vacate the premises, nor was he given an
opportunity to leave. We find that the defendant’s mere presence on the platform, without any
other evidence, was insufficient to justify a Terry stop. See People v. Lozano, 2023 IL 128609,
¶ 37 (“The officer must be able to articulate more than an inchoate and unparticularized suspicion
or hunch of criminal activity.” (Internal quotation marks omitted.) (quoting Wardlow, 528 U.S. at
123-24)). Given the information available to the officers, we cannot say that these facts lead to a
9 reasonable, articulable suspicion that the defendant had committed or was about to commit a crime.
See Kipfer, 356 Ill. App. 3d at 137. As a result, the State failed to establish that the officers’ Terry
stop that precipitated his resisting a peace officer offense was justified by articulable reasonable
suspicion and amounted to an “authorized act.”
¶ 19 Even if we assume that the defendant’s mere presence on the platform before the train
began running factored into his “unusual conduct” to justify the officers initial stop, in light of the
applicability of only one Lozano factor—that it was early in the morning—no other facts otherwise
indicate criminal activity to justify the Terry stop of the defendant. See Lozano, 2023 IL 128609,
¶ 38. Notably, there is no evidence that the stop was in a high crime area, that the defendant
attempted to flee, or that the defendant’s behavior was consistent with the officer’s knowledge of
criminal activity. Id. Moreover, whatever reasonable suspicion existed dissipated when the
defendant informed officers that he had a ticket for the train. See People v. Pulido, 2017 IL App
(3d) 150215, ¶ 52 (“[A]n investigative stop must cease once reasonable suspicion or probable
cause dissipates.”); see also People v. Jones, 2015 IL App (2d) 130387, ¶ 16 (following a report
of violence, an officer is “authorized to conduct some initial investigation,” however, upon finding
no evidence of a crime, his authority to continue ended). The officers had ample opportunity to
request to view the defendant’s train ticket but failed to do so. The officers cannot ignore or
disregard new information from the defendant relevant to their trespassing investigation and insist
that the defendant refused to provide information related to their investigation. As such, the
officers lacked reasonable suspicion to justify their Terry stop, making it an unauthorized act and
insufficient to support a conviction for resisting a peace officer.
¶ 20 Moreover, the officers failed to articulate any other criminal activity that they believed the
defendant to have committed or was about to commit. Instead, the evidence showed that the
10 officers immediately asked the defendant to tender his identification upon contact. See People v.
Fernandez, 2011 IL App (2d) 100473, ¶ 13 (the court held that an individual subject to a Terry
stop has no obligation to answer the questions of a police officer, and the refusal to identify himself
or provide identification to police officers was insufficient evidence to support a conviction for
resisting or obstructing a peace officer). This fact, coupled with the officers informing the
defendant that they had no intention of arresting him, followed almost immediately by the
defendant’s detention, indicates that the officers incorrectly believed they were justified in
conducting a Terry stop of the defendant based solely on the refusal to tender his identification
and his generally combative demeanor. See id. The facts presented are insufficient to justify a
Terry stop and, thus, the officers’ actions were unauthorized. See Lozano, 2023 IL 128609, ¶ 37.
¶ 21 Finally, the defendant’s refusal to initially reveal his hands was insufficient to establish a
reasonable suspicion that the defendant was armed and dangerous. First, the officers’ belief that
the defendant “could have had a weapon,” without more, amounted to a mere “hunch,” which is
insufficient to establish reasonable suspicion. See Terry, 392 U.S. at 22 (intrusions upon
constitutionally guaranteed rights must be based on more than inarticulate hunches). Second,
before the officers made physical contact, the defendant showed his hands and phone to the officer.
See People v. Cope, 299 Ill. App. 3d 184, 189 (1998) (“Refraining from physical action or failing
to cooperate with the police is generally not considered the same as resisting or obstructing an
officer.”). The evidence showed that Windmon observed the defendant’s hands prior to making
contact, as his first action was to remove the defendant’s phone from his hands. Not only did the
officers lack reasonable articulable suspicion to justify their initial Terry stop, but the officers also
lacked articulable suspicion once the defendant showed his hands. Windmon could clearly see,
prior to making contact, that the defendant had his hands displayed and held a cell phone.
11 Therefore, the officers were not authorized or justified in conducting a Terry stop in this case, even
taking the evidence in the light most favorable to the State, and therefore for the foregoing reasons,
the evidence does not support the guilty verdict.
¶ 22 III. CONCLUSION
¶ 23 The judgment of the circuit court of Will County is reversed.
¶ 24 Reversed.