People v. Walker

2021 IL App (2d) 190748-U

Opinion

2021 IL App (2d) 190748-U No. 2-19-0748 Order filed August 12, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-1746 ) MARCUS WALKER, ) Honorable ) Charles E. Petersen, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Zenoff and Schostok concurred in the judgment.

ORDER

¶1 Held: Defendant invited error by abandoning his claim that his custodial statements were tainted by an impermissible Terry stop. We will not review the claim under the plain-error doctrine, which does not extend to invited errors.

¶2 Following a jury trial in the circuit court of Kane County, defendant, Marcus Walker, was

found guilty of being an armed habitual criminal (720 ILCS 5/24-1.7 (West 2016)). Defendant

argues on appeal that the trial court erred in denying his pro se motion to suppress evidence. We

affirm.

¶3 I. BACKGROUND 2021 IL App (2d) 190748-U

¶4 The charges against defendant were based on the discovery of a handgun in a backpack

and defendant’s custodial statements to police that the gun belonged to him. In his pro se motion,

defendant sought to suppress the gun and the statements. Defendant contended that, on October

5, 2016, he was unlawfully stopped without reasonable suspicion—as required under Terry v.

Ohio, 392 U.S. 1 (1968)—that he had committed or was about to commit a crime. He alleged that

he was stopped about 40 minutes after someone called the Aurora Police Department and reported

a black male sitting on the front steps of a house that the caller knew was vacant.

¶5 Defendant appeared pro se at the hearing on the motion. He testified that, on the date in

question, he and his friend “Omar” had bought some snacks. Defendant put his snacks in Omar’s

backpack. They got to 442 Spruce Street and sat on the steps. Omar went to visit a girl who lived

in the duplex next door. Omar went back and forth between the duplex and the steps where

defendant was sitting. At some point, Omar left the backpack with defendant and told defendant

not to leave. However, defendant planned to go to a hospital to visit a friend who had shot himself.

Defendant arranged for a friend to drive him to the hospital. He told his friend to meet him around

the corner.

¶6 Defendant was walking and talking on his phone. He noticed two police officers

approaching him. When defendant tried to walk around them, one of the officers, Aurora police

officer Jonathan Flores, put his hand on defendant’s chest. Flores asked defendant if he was the

one who had called the police, and defendant responded that he had not. Flores immediately started

to frisk defendant. Defendant gave Flores his name and handed him a Sam’s Club membership

card for identification. The officers questioned defendant about an incident the day before in which

Anthony Martell shot at the police and then shot himself. They asked defendant to write a

statement, and he agreed after learning that he might be paid for cooperating. The officers then

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took defendant back to 442 Spruce Street where he sat down to write the statement. When he

finished the statement, the officers told him that there was a warrant from Du Page County for his

arrest. The officers asked if the backpack (which defendant had left at 442 Spruce Street) belonged

to defendant. Defendant said that it did not; he was just watching it for the owner. The officers

searched the backpack.

¶7 The State moved for a directed finding on the motion to suppress. The State argued that

(1) defendant denied owning the backpack and had abandoned it when he walked away from 442

Spruce Street without it; (2) the search of the backpack was a lawful search incident to the arrest

pursuant to the warrant; and (3) the gun would have been discovered in an inventory search of the

backpack. After defendant presented his argument in opposition to the State’s motion, the trial

court asked him, “just to be clear, the item that you seek to suppress is the contraband found in

that backpack?” Defendant responded, “yes.” The trial court granted the State’s motion for a

directed finding, reasoning that defendant had abandoned the backpack when he walked away from

it and, therefore, could not claim that the search of the backpack violated his fourth amendment

rights.

¶8 Counsel was subsequently appointed to represent defendant. Defendant’s attorney filed a

“motion to suppress statements,” seeking to bar defendant’s statements to police. The motion

asserted that defendant did not knowingly and voluntarily waive his rights under Miranda v.

Arizona, 384 U.S. 436 (1966)). Following a hearing, the motion was denied.

¶9 At trial, Elizabeth Keenan testified that she observed a black man walk up to the residence

at 442 Spruce Street and sit on the steps. She believed that the residence was vacant. Keenan did

not see anybody else with the man. After observing the man for about 30 minutes, she called 911

to report him as suspicious.

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¶ 10 Flores responded to the report. He testified that when he arrived, he parked his patrol car

on Spruce Street, across the intersection east of 442 Spruce Street. Flores saw defendant get up

from the steps at 442 Spruce Street and start to walk east. Flores walked toward him and asked

him his name and if he had any identification. Defendant gave Flores his name and date of birth.

He said he did not have any identification, but he gave Flores his Sam’s Club membership card.

Flores learned that there was a warrant for defendant’s arrest. Defendant told Flores that he had

information about an unrelated case, and Flores had defendant prepare a written statement.

¶ 11 Flores saw a backpack at the bottom of the steps to 442 Spruce Street. Flores testified that

after defendant was arrested on the warrant, Flores searched the backpack and found a handgun.

¶ 12 The State presented evidence that defendant was questioned while in custody and gave a

videorecorded statement admitting that the gun belonged to him. It was stipulated that defendant

had two convictions of offenses listed in the armed habitual criminal statute.

¶ 13 Defendant testified that he and Omar bought snacks and that he put his snacks in Omar’s

backpack. Omar wanted to purchase marijuana from a woman who lived next door to 442 Spruce

Street. Omar told defendant that the woman was not comfortable having strange men in the house,

so defendant waited on the steps of 442 Spruce Street. While waiting, he talked on his cell phone

to a woman he knew. At some point, Omar came out of the house and left his backpack on the

ground. Omar then went back into the house. Defendant got up and started to go to a friend’s

house around the corner. He saw Flores approach at a fast pace. Flores asked defendant if he was

the one who called 911. Defendant said he was not. Flores put his hand on defendant’s chest and

told defendant to stop. Flores then patted defendant down and asked him his name and for

identification. Defendant gave Flores his name and his Sam’s Club membership card. Flores

wanted defendant to write a statement about Martell. Defendant sat on the steps at 442 Spruce

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Street and wrote a statement. After defendant finished, Flores told him that there was a warrant

for his arrest and took him into custody.

¶ 14 At the Aurora Police Department, defendant was questioned by detectives about the

backpack. They told defendant that if he made a statement, he would be allowed to attend Martell’s

funeral. If he did not make a statement, they could connect him to the gun that Martell used to

shoot himself.

¶ 15 After the jury found defendant guilty, he filed a motion for a new trial arguing, inter alia,

that the trial court erred by denying the “motion to suppress statements.” The trial court denied

the motion and sentenced defendant to an eight-year prison term. This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 Defendant argues on appeal that the trial court erred in denying his pro se motion to

suppress evidence. Defendant contends that Flores improperly conducted a Terry stop that led to

his arrest on a warrant and his incriminating custodial statements to police. Defendant maintains

that the stop was improper because Flores lacked a reasonable suspicion that defendant had

committed or was about to commit a crime. Further, the evidence that flowed from the stop should

have been suppressed as the fruit of the poisonous tree. See generally People v. Henderson, 2013

IL 114040, ¶ 33. Defendant does not challenge the trial court’s reasoning with respect to the gun

found in the backpack. Because the trial court found that defendant abandoned the backpack, the

constitutionality of the Terry stop was irrelevant. Accordingly, only defendant’s statements are at

issue in this appeal.

¶ 18 We initially note that “when the denial of a motion to quash arrest and suppress evidence

is based on the grant of a motion for directed finding, the trial court does not view the evidence [in

the light] most favorabl[e] to the [nonmovant] but, rather, (1) determines whether the [nonmovant]

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has made out a prima facie case, then (2) weighs the evidence, including that which favors the

[movant].” (Internal quotation marks omitted) People v. Green, 2014 IL App (3d) 120522, ¶ 28.

The trial court’s decision on a motion for a directed finding will be upheld unless it is against the

manifest weight of the evidence. Id.

¶ 19 The fourth amendment to the United States Constitution (U.S. Const., amend. IV) and

article I, section 6 of our state constitution (Ill. Const. 1970, art. I, § 6) protect people from

unreasonable searches and seizures. People v. Smith, 152 Ill. 2d 229, 244 (1992). Subject to

various exceptions, a warrant is normally required for a search or seizure to be reasonable. People

v. Thomas, 2019 IL App (1st) 170474, ¶ 16. Terry provides for one such exception. As we have

explained, “Terry authorizes a police officer to effect a limited investigatory stop where there

exists a reasonable suspicion, based upon specific and articulable facts, that the person detained

has committed or is about to commit a crime.” People v. Smulik, 2012 IL App (2d) 110110, ¶ 5.

To determine if a reasonable suspicion existed, “a reviewing court should objectively consider

whether information known to the officer at the time of the stop would warrant a person of

reasonable caution to believe that a stop was necessary to investigate the possibility of criminal

activity.” People v. Meo, 2018 IL App (2d) 170135, ¶ 17.

¶ 20 The State contends that defendant forfeited any fourth amendment challenge to his

statements. The State notes that, although in his pro se motion defendant sought suppression of

his statements, at the hearing on the motion he indicated (in response to the trial court’s inquiry)

that it was the “contraband in the backpack” that he sought to suppress. We conclude that

defendant did not simply forfeit any error—he invited it. Under the invited-error rule, “a party

cannot complain of error which that party induced the court to make or to which that party

consented.” In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). Thus, it was reasonable for

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the trial court to seek clarification of the issues based on the evidence and argument presented at

the hearing. This is true even though, as defendant points out, he indicated at an earlier hearing

that his pro se motion to suppress evidence sought suppression of his statements as well as the

contents of the backpack. When a trial court hears a motion, it is entitled to rely on the movant’s

statement of the relief he or she seeks and to determine the dispositive issues accordingly. The

trial court’s analysis hinged on its finding that defendant abandoned the backpack and therefore

had no expectation of privacy in it. People v. Arnett, 217 Ill. App. 3d 626, 632 (1991) (“Abandoned

property may be examined *** constitutionally by the police, because justifiable expectation of

privacy vanishes with abandonment.”)1 Given that finding, the constitutionality of Flores’s

encounter with defendant became irrelevant. We note that defendant does not suggest that he

misunderstood the trial court’s question. If he did, he was obliged to speak up once the trial court

indicated that it did not need to decide whether an unconstitutional Terry stop occurred.

¶ 21 The State further notes that, in his posttrial motion, defendant argued that the trial court

erred in denying his motion to suppress statements, but he did not mention the pro se motion to

suppress evidence. (As seen, these were distinct motions; the former was based not on the

constitutionality of Flores’s encounter with defendant but on an alleged Miranda violation.)

Defendant’s failure to raise the issue in his posttrial motion forfeited review. People v. Enoch,

122 Ill. 2d 176, 186 (1988) (the defendant must object both at trial and in a written posttrial motion

to preserve an issue for appellate review).

1 It is undisputed that, when defendant walked away from 442 Spruce Street, he was not

carrying the backpack but had left it at that location.

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¶ 22 Defendant contends that even if the issue is not preserved for appeal, we should review it

under the second prong of the plain-error doctrine. “[T]he plain-error doctrine allows a reviewing

court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is

so closely balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is

so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d

551, 565 (2007). We note that defendant fails to elaborate on why the purported error here is

subject to review under the second prong or to cite any authority on that subject. He simply asserts

that the second prong applies. “Mere contentions, without argument or citation to authority, do

not merit consideration on appeal.” Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151,

¶ 12. More importantly, we reiterate that we regard the alleged error here as not merely forfeited

but as invited. Plain-error review is unavailable in cases of invited error. See, e.g., People v.

Harding, 2012 IL App (2d) 101011, ¶ 17 (“[P]lain-error review is forfeited when the defendant

invites the error.”)

¶ 23 III. CONCLUSION

¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

¶ 25 Affirmed.

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