In re Kendale H.

2013 IL App (1st) 130421

FIFTH DIVISION
December 27, 2013
No. 1-13-0421

In re KENDALE H., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County.
)
Petitioner-Appellant, )
)
v. ) No. 11 JD 4911
)
Kendale H., ) Honorable
) Carl Walker,
Respondent-Appellee). ) Judge Presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justice McBride specially concurred, with opinion, joined by Justice Palmer.

OPINION

¶1 The only issue on this appeal is whether or not a seizure occurred.

¶2 The trial court held that respondent Kendale H., a minor, was seized during

the police's vehicular chase of him, while he was running on foot in a vacant lot.

On appeal, respondent argues that a seizure occurred when the police subsequently

shot him in the abdomen. On appeal, the State does not argue that the shooting

was justified, but argues only that no seizure occurred during the chase.
No. 1-13-0421

¶3 For the following reasons, we reverse the trial court's ruling that a seizure

occurred during the chase and we remand for a suppression hearing at which the

minor may introduce evidence that, at the end of the chase, he was shot by the

police. Although there is no question that the shooting was a seizure, our remand

provides the State with an opportunity to respond to this evidence.

¶4 In the case at bar, the State sought an adjudication of wardship on the

ground that the minor respondent possessed one shotgun shell, which the police

discovered during a search of respondent's clothing after the police shot him. The

possession was illegal since respondent lacked a Firearm Owner Identification

(FOID) card. Respondent moved to suppress the shell on the ground that it was

the product of an unreasonable seizure in violation of the fourth amendment.

After a hearing at which the sole witness was one of the arresting officers, the trial

court granted the motion to suppress. The State then filed a notice of substantial

impairment, and this appeal followed.

¶5 BACKGROUND

¶6 On November 16, 2011, the State filed a petition for adjudication of

wardship that alleged five counts, including two counts of aggravated assault, one

count of assault, one count of resisting a police officer, and one count of

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possessing firearm ammunition without a FOID card. On November 21, 2011, the

trial court found that there was no probable cause to support any of the counts but

the firearm ammunition count, which is a Class A misdemeanor carrying a

maximum sentence of less than one year and a fine not to exceed $2,500. 430

ILCS 65/2(a)(2), 65/14(e) (West 2012); 730 ILCS 5/5-4.5-55(a), (e) (West 2012).

¶7 I. The Probable Cause Hearing

¶8 At the arraignment on November 21, 2011, respondent stated that he was 17

years old, that he was currently a senior in high school, that he was graduating this

year, that he was going to college in Memphis, Tennessee, after graduation, and

that he resided with his mother and siblings. After the arraignment, the trial court

proceeded directly to the probable cause hearing. On behalf of the State, the

prosecutor stated:

"If called to testify under oath, Officer Mayes, spelled

M-A-Y-E-S, star number 1-3-1-7-2, would testify under

oath [that on] October 1st, 2011, [at] approximately

11:09 p.m., he was in or around the address of 6237

South Eberhart Avenue in Chicago, Cook County,

Illinois 60637.

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He would testify that on that date and approximate

time, he was the passenger in a marked police car vehicle

[sic] while on duty as a police officer. He would testify

that his partner was driving the vehicle. He would testify

that on that date and approximate time, he was driving

down 63rd Street when he observed this minor along

with two other individuals walking on [sic] that address.

He would testify that him – he and his partner decided

to conduct a field interview on these three individuals.

He would testify that as he drove towards the three

individuals, these three individuals, including this minor,

had looked in the officer's direction and separated and

began to run.

He would testify that this – that he then – he and his

partner, while in their car, then began to follow this

minor, who fled northeast from 63rd Street and Vernon

[Avenue] towards Eberhart [Avenue], and he testified –

he would testify that this minor with – who was cut off

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from his northbound flight due to the stopping of the car

in front of the minor, then reversed his direction and

began to run southbound on Eberhart [Avenue].

He would testify that at this time, he exited his

vehicle, identified himself as a Chicago Police Officer,

and ordered the minor to stop. He would testify [that]

this minor then continued to run southbound and then

turned eastbound into the north alley of 63rd Street. He

would testify that he had continued to chase this minor

on foot while ordering him to stop running.

He would testify further that[,] during the course of this

chase, he observed this minor continually reaching into his

waistband as he was running from the officer. He would testify

that he believed that this minor was attempting to reach for an

object in his waistband.

He would testify further that he ordered this minor to

stop running, but this minor continued into the alley of

Eberhart [Avenue] and ran northbound. He would testify

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No. 1-13-0421

that he followed this minor into that alley.

He would testify further that at 6239 Eberhart

[Avenue], this minor turned towards him while reaching

– stopped fleeing, turned towards him and reached into

his waistband. He would testify that this minor then

turned around and continued to flee. He would testify

further that he then observed this minor jump over a

chain link fence.

He would testify that he then ran up to that fence, and

while he was before the fence and this minor was past

the fence, this minor then stopped and reached into his

waist and began to withdraw his hands.

This officer would testify that fearing that this minor

was about to pull out a gun, he pulled out his own gun

and then in defense fired one time, striking this minor in

the abdomen.

He would testify that this minor then fell to the

ground. An ambulance was called, and then this minor

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No. 1-13-0421

was placed under arrest."

The prosecutor then stated: "Based on the testimony of the police officer, then I

contend he did have probable cause to arrest this minor for all of the charges that

were charged in this petition."

¶9 The trial court then observed that it had heard nothing concerning the

firearm ammunition allegedly found on respondent, and the prosecutor asked to

reopen his proffer and the trial court granted the request. The prosecutor then

stated:

"Officer Mays would testify further that upon placing

this minor under arrest in a custodial search that he

found one shotgun shell in this minor's shirt pocket."

The trial court then made a finding of no probable cause as to all the counts in the

petition, except for the ammunition count as to which the court did find probable

cause. The trial court observed that "there should be a finding of no probable

cause on that [ammunition count], too, and you never said anything about that.

Not all judges allow you to reopen your proffer ***."

¶ 10 The State then informed the court that the minor had no prior criminal

history, and the case was continued. On October 12, 2012, at a status conference,

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No. 1-13-0421

respondent informed that court that he had graduated high school and was starting

college in January 2013, and his counsel informed the court that respondent had

delayed his acceptance for a semester due to this matter.

¶ 11 II. The Suppression Hearing

¶ 12 The defense filed two pretrial motions. The first motion, filed on August 2,

2012, alleged that respondent had picked up the shotgun shell by the subway train

tracks on his way home and that the statute, which criminalized possession of

firearm ammunition without a FOID card, was unconstitutional because it

criminalized potentially innocent conduct. Attached to the motion was a trauma

history report from Stroger Hospital stating that respondent had arrived at the

hospital at 11 p.m. on October 1, 2011, that he had been shot once in the abdomen

by a police officer and that the bullet had exited under his left arm. This motion

remains pending. On October 23, 2012, respondent filed a motion to suppress the

ammunition on the ground that it was the product of an unreasonable search and

seizure.

¶ 13 On November 2, 2012, the trial court held a hearing on respondent's

suppression motion at which one witness was called. Officer Jerome Starks

testified that he was 39 years old and had been with the Chicago police department

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No. 1-13-0421

since 2006. He was working a "beat patrol" on October 1, 2011, with his partner

Officer Alfred Mays on a night shift that began at 9 p.m. and lasted until 6 a.m.

They were patrolling the area around 63rd Street and South Eberhart Avenue in

Chicago in a marked police vehicle with Officer Starks driving. At 11 p.m., he

observed three males walking eastbound on 63rd Street near King Drive. At that

time, he was not looking for any particular suspects. After observing the three

males, he made a right turn onto 63rd Street from King Drive, traveling eastbound

on 63rd Street. When he passed the three males, he stopped the vehicle. At that

point, he was on 63rd Street, near Vernon Avenue, facing eastbound, and he

continued to observe the three males. After the police vehicle stopped, the three

males separated, with two of them walking northbound on Vernon Avenue and the

third one walking eastbound on 63rd Street. The third one, who was respondent,1

then walked through a vacant lot located on the east side of 63rd Street between

1
Although defense counsel did not specifically ask Officer Starks to identify
respondent in court, defense counsel phrased her questions in terms of "the
subject" or "Kendale [last name]" and she did ask the officer to identify who he
meant by "the subject" and he replied: "The subject I believe to know now as Mr.
[last name]." In addition, defense counsel used respondent's full name, asking at
one point whether the officer had a warrant to arrest or search "Kendale [last
name]." Also, both the prosecutor and the defense counsel subsequently made
closing arguments concerning respondent. Thus, there was no confusion at the
suppression hearing about whom Officer Starks was testifying.

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No. 1-13-0421

Vernon and Eberhard Avenues. After respondent entered the vacant lot on foot,

Officer Starks drove his vehicle into the lot.

¶ 14 Officer Starks testified that his intent in driving into the lot was "[t]o

conduct a field interview." He explained that, by "a field interview," he meant "to

stop the individual to maybe get a name, get some information, to see what he's

doing, or where he's going." However, he testified that he had no reason at that

time to believe that respondent was involved in any criminal activity, and his

suspicions about respondent never changed. He also did not have a warrant to

arrest or search respondent. The officer testified that this was "a high crime area,"

and he observed "the three individuals walking, looking kind of suspicious only

because the way they were looking at us as well." When asked "what about

[respondent] appeared suspicious to you," he answered: "Just the hands in the

pocket – in his pockets and the way he was looking at us to see what we were

doing."

¶ 15 Officer Starks testified that, after driving his police vehicle into the vacant

lot, he observed respondent walking across the lot and the officer accelerated his

vehicle. When the police vehicle accelerated, respondent began to run. When

respondent began to run, Officer Starks stopped the vehicle and Officer Mays

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No. 1-13-0421

exited the passenger side and yelled at respondent.

¶ 16 Officer Starks testified that the curfew age for a minor under the age of 17

is 9:30 p.m. However, for someone 17 years or older, there is no curfew. When

he first observed respondent, it was before 11 p.m.

¶ 17 After the defense rested, the State moved for a directed finding on the

ground that the defense failed to have the officer identify the respondent in open

court and failed to elicit any information concerning a detention of respondent by

the officers. The testimony about the event at the suppression hearing ended with

respondent running across a vacant lot. The trial court denied the State's motion

for a directed finding, and the State rested and the parties proceeded to closing

argument. During closing argument, defense counsel conceded that this was a

high crime neighborhood and argued that "the chase was a seizure," and the

prosecutor conceded that the officer testified that he "saw a minor, who he

believes [sic] his name is Kendale [last name]."

¶ 18 After hearing arguments from both sides, the trial court observed that this

incident "occurred in October in Chicago, so it's not unusual that individuals

walking might have their hands in their pockets," and "that simply being in a high

crime neighborhood alone is not enough to justify an investigatory stop, although

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No. 1-13-0421

it may be a relevant factor." The trial court then concluded:

"The officer has not provided any specific articulable

facts, which taken together would justify an intrustion in

this case. The Court therefore finds the bullets, which

were the basis for the arrest, are hereby suppressed as a

product of an unconstitutional seizure."

¶ 19 III. The State's Motion to Reconsider

¶ 20 On November 30, 2012, the State filed a motion to reconsider, arguing:

"There is no testimony that a seizure occurred in the record. No one testified that

the minor was detained in any way." In his response, respondent argued: "This

argument is completely nonsensical. The State concedes that Officer Mayes

detained the Minor by shooting him." Attached as "Exhibit A" to respondent's

response were: the transcript of the November 2, 2012, suppression hearing; the

trauma history report of Stroger Hospital admitting respondent at 11 p.m. on

October 1, 2011; and the arraignment order.

¶ 21 On December 20, 2012, after hearing argument from both sides, the trial

court stated that, in response to the State's motion to reconsider, it had "decided to

reconsider the matter" and that it now found the following facts:

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No. 1-13-0421

"And pursuant to the Court's reconsidering of the

matter, the Court finds the facts in this matter to be that

the officers attempted to stop the minor respondent. The

officers did not have a warrant at the time that they

attempted to stop the minor respondent.

The Court finds that the minor respondent was doing

absolutely nothing unusual. He was simply walking

down the street when the officers decided that they

wanted to stop him to conduct a field interview.

The officer was clear that the minor respondent was

not engaged in any criminal activity at the time. The

minor had not done anything unusual. He was originally

walking with two friends. They walked in one direction.

The minor walked in another.

The Court finds – This Court finds that this was a

warrantless stop. The Court finds that the stop was not

justified because the minor was doing nothing unusual.

Although an officer may conduct an investigatory

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stop when the officer reasonably infers from

circumstances that the person is committing or is about

to commit or has committed a criminal offense, in this

case the officer has no – had no reason to even conduct

an investigatory stop.

[The] [c]ourt finds that the motion to quash should

have been granted. The Court continues to stand by that

ruling, and the motion to quash the arrest is granted. The

Court finds that even if the – Well, I don't get into that.

The subsequent facts led to the minor in this case

subsequently being shot by the police officers; but those

facts, the Court won't get into."

¶ 22 IV. The State's Notice of Appeal

¶ 23 On January 18, 2013, the State filed a notice of appeal and a certificate of

substantial impairment. The certificate stated that "the order granting minor-

respondent's motion to suppress evidence and *** the order denying the People's

motion to reconsider in the above-captioned case substantially impairs the People's

ability to prosecute said case."

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¶ 24 On January 22, 2013, the parties appeared before the trial court for a

previously scheduled status date and the State informed the trial court that it had

filed a notice of appeal. The defense counsel asked about her previously-filed

motion challenging constitutionality, and the trial court explained that it had no

authority to act once the notice of appeal was filed.

¶ 25 ANALYSIS

¶ 26 In the case at bar, the State sought an adjudication of wardship on the

ground that the minor respondent possessed one shotgun shell, which the police

discovered during a search of respondent's clothing after the police shot him.

Respondent moved to suppress the shell on the ground that it was the product of

an unreasonable seizure in violation of the fourth amendment. After a suppression

hearing, the trial court granted the motion, and the State filed a notice of

substantial impairment and this appeal followed.

¶ 27 I. Standard of Review

¶ 28 A review of a trial court’s ruling on a motion to suppress evidence presents

mixed questions of fact and law. People v. Lee, 214 Ill. 2d 476, 483 (2005). When

reviewing a trial court’s ruling on a motion to suppress evidence, we accord great

deference to the trial court’s factual findings. People v. Close, 238 Ill. 2d 497, 504

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(2010). We will reverse a trial court’s findings only if they are against the manifest

weight of the evidence. People v. Bunch, 207 Ill. 2d 7, 13 (2003). “A judgment is

against the manifest weight of the evidence only when an opposite conclusion is

apparent or when findings appear to be unreasonable, arbitrary, or not based on

evidence.” Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995).

¶ 29 However, we review de novo the trial court’s ultimate legal ruling as to

whether suppression was warranted. People v. Pitman, 211 Ill. 2d 502, 512 (2004);

In re Mario T., 376 Ill. App. 3d 468, 472 (2007) (“Our focus *** is on the legal

question of the justification of the stop and frisk so as to warrant the denial of the

*** motion to suppress.”). De novo consideration means we perform the same

analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.

App. 3d 564, 578 (2011). Since the State does not present any arguments on

appeal that the seizure was reasonable, the ultimate legal question in this case is

whether a seizure occurred for the purposes of the fourth amendment. This is a

question we consider de novo. Mario T., 376 Ill. App. 3d at 472-73 (“whether the

motion should have been granted necessarily turns on a reviewing court’s ‘own

assessment of the facts in relation to the issues presented and may draw its own

conclusions when deciding what relief should be granted’ ” (quoting Pitman, 211

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Ill. 2d at 512)).

¶ 30 When a criminal defendant files a motion to suppress evidence, claiming

that there was an illegal search or seizure, he or she has the burden of

demonstrating the illegal search or seizure. People v. Buss, 187 Ill. 2d 144, 204

(1999). In deciding the motion, the normal rules of evidence do not apply and the

trial court may consider hearsay evidence that would not be admissible at trial.

People v. Patterson, 192 Ill. 2d 93, 111-12 (2000); Ill. R. Evid. 104(a) (eff. Jan. 1,

2011) ("In making its determination [about the admissibility of evidence], the

court is not bound by the rules of evidence except those with respect to

privileges."). See also United States v. Matlock, 415 U.S. 164, 172-73 (1974)

("the rules of evidence normally applicable to criminal trials do not operate with

full force at [suppression] hearings before the judge to determine the admissibility

of evidence")

¶ 31 As the State correctly observes in its brief, "[i]t is a fundamental principle

of appellate law that when an appeal is taken from a lower court judgment, the

question before the court of review is the correctness of the result, not the

correctness of the reasoning on which the result was reached." People v. Johnson,

208 Ill. 2d 118, 128 (2003). Thus, an appellate court may affirm a lower court's

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judgment on any ground supported by the record. Johnson, 208 Ill. 2d at 129-30.

¶ 32 II. The Juvenile System

¶ 33 A petition for wardship is not a criminal proceeding; it is not even an

adversarial proceeding. In re C.J., 328 Ill. App. 3d 103, 111, 113-14 (2002) ("Our

supreme court clearly denominated juvenile proceedings to be 'not criminal' and

'nonadversarial'" (citing In re W.C., 167 Ill. 2d 307, 320, 326 (1995))). See also

705 ILCS 405/1-5(1) (West 2012) ("proceedings under this Act are not intended to

be adversary in character"). The lack of adversarialness in the case at bar was

emphasized during the probable cause hearing when the trial court, instead of

dismissing the ammunition count, pointed out to the State that it had failed

introduce any evidence on that count and allowed the State to reopen its proffer.

"Our state supreme court has been careful to point out that neither general criminal

practice rules nor provisions of the criminal code or criminal procedural code have

been incorporated into the juvenile system." In re C.J., 328 Ill. App. 3d at 111

(citing In re W.C., 167 Ill. 2d 307, 322 (1995), and People v. Woodruff, 88 Ill. 2d

10, 15-16 (1996)). While the Act bestows upon a minor "all the procedural rights

of adults in criminal proceedings," nowhere does it require of them all the

procedural obligations. 705 ILCS 405/5-101(3) (West 2012). Instead, the Act

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No. 1-13-0421

must be administered in a "spirit of humane concern." 705 ILCS 405/1-2 (2)

(West 2012) ("The Act shall be administered in a spirit of humane concern").

¶ 34 III. The Seizure

¶ 35 The timing of the seizure is a critical issue in this case. On appeal, the

defense argues that respondent was seized at the moment when the officer shot

him. The State argues that respondent was not seized at the moment when he ran

from the officers; however, it offers no arguments on appeal concerning whether

respondent was seized when he was shot. As stated above, we remand so that the

State may introduce, at a suppression hearing, evidence what led to the shooting,

so that the State has the opportunity to address the issue of seizure.

¶ 36 While it is black-letter law that respondent was not seized while he was still

running away (California v. Hodari, 499 U.S. 621, 626 (1991)), there is also no

question that he was at least seized when the shot to his abdomen caused him to

fall to the ground. People v. Luedemann, 222 Ill. 2d 530, 550 (2006) (seized “ ‘by

means of physical force' " (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968))).

¶ 37 First, respondent was not seized while he was still running away from the

officers. For purposes of the fourth amendment, an individual is “seized” when an

officer “ ‘by means of physical force or show of authority, has in some way

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restrained the liberty of a citizen.’ ” People v. Luedemann, 222 Ill. 2d 530, 550

(2006) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). The United States Supreme

Court explained:

"The word 'seizure' readily bears the meaning of a laying

on of hands or application of physical force to restrain

movement, even when it is ultimately unsuccessful.

('She seized the purse-snatcher, but he broke out of her

grasp.') It does not remotely apply, however, to the

prospect of a policeman yelling 'Stop, in the name of the

law' at a fleeing form that continues to flee. That is no

seizure." Hodari, 499 U.S. at 626.

As the Hodari court explained, the word "seizure" does not remotely apply to the

prospect of a policeman yelling "Stop!" at a fleeing form. Hodari, 499 U.S. at

626. Thus, the trial court erred when it held that respondent was seized during the

officers' vehicular chase of respondent, as he continued to run on foot.

¶ 38 Second, respondent was certainly seized when he was shot in the abdomen

and fell to the ground. Further evidence could show that he was seized earlier, but

we do not know of any additional facts at this point in time to make that

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determination. “ ‘The appropriate inquiry [about whether a seizure occurred] is

whether a reasonable person would feel free to decline the officers’ requests or

otherwise terminate the encounter.’ ” Luedemann, 222 Ill. 2d at 550 (quoting

Florida v. Bostick, 501 U.S. 429, 436 (1991)). The inquiry “presupposes a

reasonable innocent person.” (Emphasis in original.) Luedemann, 222 Ill. 2d at

551 (citing Bostick, 501 U.S. at 434-35). Illinois courts will consider the totality of

the circumstances in determining whether or not a seizure occurred. Luedemann,

222 Ill. 2d at 530. The circumstances Illinois courts will consider when deciding if

a seizure occurred include the Mendenhall factors, which were set forth in a

United States Supreme Court case of the same name. People v. Cosby, 231 Ill. 2d

262, 274 (2008) (citing United States v. Mendenhall, 446 U.S. 544, 553 (1980)).

In Mendenhall, the United States Supreme Court held:

“ ‘a person has been ‘seized’ within the meaning of the

Fourth Amendment only if, in view of all of the

circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.

Examples of circumstances that might indicate a seizure,

even where the person did not attempt to leave, would be

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[1] the threatening presence of several officers, [2] the

display of a weapon by an officer, [3] some physical

touching of the person of the citizen, or [4] the use of

language or tone of voice indicating that compliance

with the officer’s request might be compelled.’ ” Cosby,

231 Ill. 2d at 274 (quoting Mendenhall, 446 U.S. at 554).

¶ 39 Respondent was unquestionably seized “ ‘by means of physical force' "

when the shot to his abdomen caused him to fall to the ground. People v.

Luedemann, 222 Ill. 2d 530, 550 (2006) (quoting Terry v. Ohio, 392 U.S. 1, 19

(1968)). Once respondent was lying incapacitated on the ground and in need of

immediate medical care, there was no way for him to " 'terminate the encounter’ ”

with the police. Luedemann, 222 Ill. 2d at 550 (quoting Florida v. Bostick, 501

U.S. 429, 436 (1991)).

¶ 40 Every single one of the Mendenhall factors shows that a seizure occurred.

First, the officer's use of a weapon made their presence more than threatening; and

second, the officer displayed and used a weapon. Third, the shooting constituted a

physical touching; and fourth, it indicated that compliance was required. Cosby,

231 Ill. 2d at 274 (quoting Mendenhall, 446 U.S. at 554). Thus, under fourth

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amendment precedent, respondent was seized when he was shot, although he was

not previously seized while he was still in flight.

¶ 41 Since we are remanding for a suppression hearing and we do not want to

cause further delay by necessitating another appeal, we provide some guidance

here. In the case at bar, the officer testified both about defendant's flight and his

presence in a high-crime area. In Illinois v. Wardlow, 528 U.S. 119, 124-25

(2000), the United States Supreme Court held that flight upon seeing police

officers, plus presence in a high-crime neighborhood, provided the reasonable

suspicion needed to justify a Terry stop. However, Wardlow differs from the facts

at bar in that the Wardlow defendant ran when he first noticed the police.

Wardlow, 528 U.S. at 121-22 (defendant was standing next to a building, when he

looked toward the four police vehicles converging on the area and took flight). In

other words, the Wardlow defendant singled himself out for suspicion by running.

By contrast, in the case at bar, the police singled defendant out before he ever ran.

Defendant ran only after the police had already begun pursuing him. In addition,

in Wardlow, the police converged on a particular area known for narcotics

trafficking where they expected to find a "crowd of people," which included a

large number of "drug customers" and "lookouts." Wardlow, 528 U.S. at 121, 124.

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Since the fourth amendment embraces a nondiscriminatory application, it must be

that the words " 'high crime area' " as used in Wardlow mean something more

specific and distinct than simply a low-income or minority neighborhood.

Wardlow, 528 U.S. at 124 (quoting Adams v. Williams, 407 U.S. 143, 144 (1972)).

¶ 42 The State does not dispute on appeal that the shooting occurred and the trial

court found as a factual matter that the chase "led to the minor in this case

subsequently being shot by the police officers." In addition, the State sought the

minor's detention based on a proffer that included the shooting; and it cannot now

argue that its own proffer lacks credibility. C.f. 705 ILCS 405/5-150(1)(a)

(evidence admitted in any proceeding under the Act is admissible in any

subsequent proceeding under the Act against the same minor). The trial court

observed that it is cold in Chicago at night in October when this incident occurred

and, as a result, there is nothing suspicious about walking down the street with

one's hands in one's pockets. No one could dispute that conclusion.

¶ 43 However, we acknowledge that respondent's failure to introduce evidence of

the shooting at the suppression hearing meant that the State then failed to address

it as well. The trial court, in turn, did not address the shooting in its ruling and

instead made an erroneous ruling that defendant was seized while he was still

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running away on foot.

¶ 44 Thus, on this interlocutory appeal, we reverse the trial court's erroneous

ruling that a seizure occurred during an ongoing chase and remand for a

suppression hearing at which respondent may introduce evidence of the shooting,

so that the State then has the opportunity to respond to the evidence.

¶ 45 While remanding, we observe that all this case concerns is a minor with a

shell in his pocket, since the State does not dispute the propriety of the trial court's

dismissal of all the other charges. On remand, we assume that all parties will

conduct themselves in "the spirit of humane concern" required by the Act. 705

ILCS 405/1-2 (2) (West 2012) ("The Act shall be administered in a spirit of

humane concern"). We direct the trial court to schedule this hearing on an

expedited basis, since this child already suffered during the shooting and has the

potential of college ahead of him. Nothing in this opinion prevents the parties and

the court from coming to a resolution of this case that is advantageous to all

concerned.

¶ 46 CONCLUSION

¶ 47 In sum, on this interlocutory appeal by the State, we reverse the trial

court's erroneous ruling that a stop occurred during the police's vehicular chase of

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a minor who was running away on foot. We remand for a suppression hearing at

which respondent may introduce evidence that he was shot in the abdomen by

police officers and at which the State may then respond to this evidence.

¶ 48 Reversed and remanded with directions.

¶ 49 JUSTICE McBRIDE, specially concurring.

¶ 50 I concur that we should reverse the trial court's decision to grant

respondent's motion to suppress and that we should remand for further

proceedings. Since there was insufficient evidence presented at the motion to

suppress to establish that a seizure occurred, the trial court's order granting the

motion to suppress was erroneous.

¶ 51 Although I would agree that a shooting can amount to a seizure, those facts

were never developed in the juvenile court and, until they are developed, we have

no reason to discuss what should occur upon remand. I also agree that both sides

should have an opportunity to present evidence to establish whether there was

probable cause to arrest respondent.

¶ 52 In light of the above, I concur only in the decision to the extent I have

stated, and not in the analysis used by the lead author.

¶ 53 JUSTICE PALMER joins in this special concurrence.

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