No. 3--96--0608
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D. 1997
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois
Plaintiff-Appellant, )
)
v. ) No. 95--CF--433
)
FA-RD MOORE, ) Honorable
) Daniel W. Gould,
Defendant-Appellee. ) Judge Presiding
_________________________________________________________________
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
Pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R.
604(a)(1)), the State appeals from an order of the circuit court of
Kankakee County which granted a motion to suppress evidence filed
by the defendant, Fa-Rd Moore. The State argues that the trial
court erred when it granted the motion to suppress. Following our
careful review of the record, we affirm.
FACTS
The defendant was charged by indictment with unlawful
possession of more than 1 gram but less than 15 grams of a
substance containing cocaine with intent to deliver (720 ILCS
570/401(c)(2) (West 1994)). The defendant filed a motion to
suppress evidence which alleged that the search of his person was
in violation of his fourth amendment rights.
A hearing was held on the defendant's motion on June 28, 1996.
The defendant called two witnesses, David Williams and Ruben
Bautista. Williams testified that he was a police officer with the
sheriff's department. On July 18, 1995, he was participating with
officers from various jurisdictions in a detail to identify gang
members. As part of this detail, he went to Gibbs Tavern in
Hopkins Park, Pembroke Township. Williams testified that he had
been at Gibbs Tavern many times because of criminal activity at
that location.
Williams saw a male subject, later identified as the
defendant, running in front of the tavern. He saw Officer Bautista
chasing the defendant and heard Bautista say, "stop, police."
Williams joined in the chase and also told the defendant to stop.
Bautista testified that he was an officer with the Illinois
State police. On July 18, 1995, he was assigned to the gang crime
unit. Bautista was wearing a gang tactical outfit consisting of a
State police T-shirt with a badge on his left chest, a web gear
belt with a badge and radios and a State police ball cap. Bautista
arrived at Gibbs Tavern at approximately 11:40 p.m. Bautista
stated that the tavern was frequented by gang members and that many
narcotic activities and shootings have occurred at that location.
Bautista saw the defendant next to a van parked in front of
the tavern entrance. The defendant was talking to someone sitting
inside the van. Bautista, who was 75 to 100 feet away, then saw
what appeared to be an exchange of money. Bautista testified that
he was not able to tell who was giving or receiving the money or if
anything else was exchanged. He admitted that, because of the
distance and lack of light, he was not able to determine if the
exchange he saw was part of an illegal transaction.
Bautista testified that after making his observation, he began
walking toward the van. He said the defendant saw him approaching
and began to walk away from the van. Bautista advised the
defendant that he was a State police officer. The defendant began
to walk faster, and Bautista started to chase him. The defendant
started running and turned into an alleyway. Williams joined in
the chase and was able to tackle the defendant. A plastic bag of
cocaine was found on the defendant as a result of a pat down search
for weapons conducted by Williams.
Following Bautista's testimony, defense counsel argued that
the police did not have any indication that the defendant was
involved in a crime prior to the chase. The State contended that
Bautista was approaching the defendant to ask him questions and
properly seized the defendant based upon his "attempt to elude the
police in violation of our statute prohibiting [resisting] or
obstructing a police officer."
The trial court granted the defendant's motion to suppress.
The trial judge explained his decision by stating:
"Officer Bautista, as many police
officers, [has] acquired a divine sense of
right and wrong. And although he could not
actually see the exchange of money and drugs,
he saw what appeared to be the exchange of
money. And based on that sixth sense, maybe
not divine sense, sixth sense, he believed
that a drug sale was going on."
However, the trial judge stated that he could not say Bautista's
observation was "grounds to believe a person is committing an
offense thereby invoking the resisting or obstructing statute.
That is just too tenuous." The judge concluded that more
articulable facts were needed than existed in this case. The trial
judge also stated that a ruling in favor of the State would mean
that a person did not have the right to walk away any time a police
officer saw "an exchange of hands, whether it was paying off a bet,
buying drugs, a shake of hands, paying my share of whatever we had
for dinner tonight."
Following this ruling, the State filed a timely notice of
appeal and a certificate of impairment.
STANDARD OF REVIEW
Generally, a trial court's ruling on a motion to suppress
evidence is subject to reversal only if it is manifestly erroneous.
People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310, 314
(1996). The State argues, however, that de novo review is
appropriate in this case. It notes that the trial court did not
make any rulings on credibility because the defendant presented the
only testimony at the hearing and the credibility of the two
witnesses was not questioned.
However, in this case, the defendant argued that the exchange
Bautista observed did not give him a basis for stopping the
defendant. In response, the State contended that Bautista
approached the defendant only in an effort to conduct a consensual
encounter. As a result, a factual dispute existed regarding
Bautista's state of mind when he approached the defendant. A
careful reading of the trial judge's comments shows that he found,
based upon the reasonable inferences that he drew from the
testimony, that Bautista approached the defendant with the
intention of effecting a Terry stop. Consequently, it is clear
from the record that the trial court decided a disputed question of
fact.
Where more than one inference may be drawn from the facts,
even uncontested facts, the question remains one for the trier of
fact. People v. Besser, 273 Ill. App. 3d 164, 167, 652 N.E.2d 454,
456-57 (1995). The trial court's determination concerning factual
matters, including the reasonable inferences to be drawn from the
testimony, is entitled to deference (People v. Luckett, 273 Ill.
App. 3d 1023, 1027, 652 N.E.2d 1342, 1345 (1995); Besser, 273 Ill.
App. 3d at 167, 652 N.E.2d at 456), and this determination will not
be disturbed on review unless manifestly erroneous (People v. Free,
94 Ill. 2d 378, 401, 447 N.E.2d 218, 229 (1983); People v.
Hamilton, 251 Ill. App. 3d 655, 660, 622 N.E.2d 130, 134 (1993)).
It is only when neither the facts nor the credibility of witnesses
is questioned that de novo review is appropriate. See Dilworth,
169 Ill. 2d at 201, 661 N.E.2d at 314; People v. Anaya, 279 Ill.
App. 3d 940, 944-45, 665 N.E.2d 525, 528 (1996). Based upon the
cases cited, we conclude that this court must give deference to the
trial court's findings of fact and reverse its determination only
if it is manifestly erroneous.
ANALYSIS
The fourth amendment to the United States Constitution
provides that the Federal government shall not violate "[t]he right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures ***." U.S.
Const., amend. IV. The fundamental purpose of this amendment is to
safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials. Dilworth, 169 Ill. 2d at 201,
661 N.E.2d at 314. The due process clause of the fourteenth
amendment (U.S. Const., amend. XIV) extended this constitutional
guarantee to searches and seizures conducted by State officials.
Dilworth, 169 Ill. 2d at 201, 661 N.E.2d at 314.
In the instant case, the trial court found that Bautista
approached the defendant in order to effect a Terry stop. Based on
our review of the record, we conclude that this finding is not
manifestly erroneous. The evidence shows that Bautista started
walking toward the defendant, identified himself as a State police
officer and told the defendant to stop.
A police officer may make a valid investigatory stop absent
probable cause for an arrest when the officer's decision is based
on specific, articulable facts which warrant the investigative stop
intrusion. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906,
88 S. Ct. 1868, 1879-80 (1968); People v. Stewart, 242 Ill. App. 3d
599, 605, 610 N.E.2d 197, 202 (1993). The police officer must have
an "articulable suspicion" that the person has committed or is
about to commit a crime. Terry, 392 U.S. at 30, 20 L. Ed. 2d at
911, 88 S. Ct. at 1884; Stewart, 242 Ill. App. 3d at 605, 610
N.E.2d at 202. Mere hunches and unparticularized suspicions are
not enough. Terry, 392 U.S. at 22, 27, 20 L. Ed. 2d at 906, 909,
88 S. Ct. at 1880, 1883; Stewart, 242 Ill. App. 3d at 605, 610
N.E.2d at 202.
Here, in this case, both Bautista and Williams testified that
criminal activity had previously occurred at Gibbs Tavern.
Bautista also testified that he was 75 to 100 feet away when saw
what appeared to be an exchange of money. However, he admitted
that, because of the distance and lack of light, he was not able to
tell if the apparent exchange was part of an illegal transaction.
The trial court noted that, besides the possibility of a drug buy,
this exchange could have merely been the paying off of a bet,
splitting the cost of dinner or even a simple shake of hands. The
trial court concluded that there were not enough articulable facts
present to warrant Bautista's attempt to effect a Terry stop. We
agree with the trial judge's analysis.
In fact, the State conceded during oral argument that Bautista
did not have sufficient articulable facts to justify a Terry stop
at the time he approached the defendant. However, the State
contends on appeal that the defendant's flight from Bautista
justified Williams' seizure of the defendant pursuant to the
"resisting and obstructing" statute, section 31-1(a) of the
Criminal Code of 1961 (Code) (720 ILCS 5/31-1(a) (West 1994)).
Section 31-1(a) provides that a "person who knowingly resists or
obstructs the performance by one known to the person to be a peace
officer *** of any authorized act within his official capacity
commits a Class A misdemeanor." (Emphasis added.) 720 ILCS 5/31-
1(a) (West 1994).
We agree with the trial court that this statute does not apply
to the facts presented in this case. When a police officer
approaches a person to make a Terry stop without sufficient
articulable facts to warrant the stop, the officer's actions are
not "justified at the inception." See People v. Sinclair, 281 Ill.
App. 3d 131, 136, 666 N.E.2d 1221, 1225 (1996). In this
circumstance, a person who runs away is not resisting or
obstructing an authorized act of the police officer.
The State contends, however, that even an unlawful arrest is
an authorized act for purposes of resisting or obstructing an
officer. See People v. Villareal, 152 Ill. 2d 368, 374-75, 604
N.E.2d 923, 926 (1992); People v. Locken, 59 Ill. 2d 459, 464-65,
322 N.E.2d 51, 54 (1974). We conclude that the reasoning of
Villareal and Locken have no application to this case. In both
Villareal and Locken, our supreme court relied upon section 7-7 of
the Code (720 ILCS 5/7-7 (West 1994)) which specifically states
that a person is not authorized to resist an arrest even if the
arrest is unlawful. Villareal, 152 Ill. 2d at 374, 604 N.E.2d at
925-26; Locken, 59 Ill. 2d at 464-65, 322 N.E.2d at 54. Because
Bautista was not making an arrest when the defendant ran away,
section 7-7 of the Code does not apply here.
We are also not persuaded by the cases cited by the State
where the defendants were properly seized or arrested following
their flight from a police officer. In those cases, the trial
court found, and the reviewing court agreed, that the initial
actions of the police were justified. Cf. People v. Holdman, 73
Ill. 2d 213, 220-21, 383 N.E.2d 155, 158-59 (1978); People v.
Jones, 245 Ill. App. 3d 302, 306-07, 613 N.E.2d 354, 357 (1993);
People v. Morales, 221 Ill. App. 3d 13, 17, 581 N.E.2d 730, 733-34
(1991); People v. Jackson, 96 Ill. App. 3d 1057, 1060, 422 N.E.2d
195, 198 (1981); People v. Montgomery, 53 Ill. App. 3d 298, 302,
368 N.E.2d 752, 755 (1977). None of the cases cited by the State
support a conclusion that a defendant's flight following an
unjustified police action can be the basis of a proper seizure. As
stated by Professor LaFave:
"The flight of a person from the presence
of police is not standing alone sufficient to
establish probable cause, unless of course the
circumstances are such that the flight from
the officer itself constitutes a crime. Were
it otherwise, 'anyone who does not desire to
talk to the police and who either walks or
runs away from them would always be subject to
legal arrest,' which can hardly 'be
countenanced under the Fourth and Fourteenth
Amendments.'" (Footnotes omitted.) 2 W.
LaFave, Search & Seizure §3.6(e), at 323-24
(3d ed. 1996).
After giving the appropriate deference to the trial court's
findings of fact, we cannot conclude that the trial court
manifestly erred when it found the defendant had met his burden of
showing that the seizure and search of his person were unreasonable
and violated his rights under the fourth amendment.
Accordingly, we affirm the judgment of the circuit court of
Kankakee County.
Affirmed.
HOLDRIDGE and HOMER, JJ., concur.