In re Jerome S.

NO. 4-06-0113 Filed 4/18/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: JEROME S., Alleged to be a ) Appeal from
Delinquent Minor, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) McLean County
Petitioner-Appellee, ) No. 04JD150
v. )
JEROME S., ) Honorable
Respondent-Appellant. ) G. Michael Prall,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Respondent minor, Jerome S. (born July 24, 1991),

appeals the trial court's denial of his motion to suppress

evidence, which resulted in his delinquency adjudication for

unlawful use of a weapon and revocation of court supervision. We

affirm.

I. BACKGROUND

On November 5, 2004, the State filed a petition for

adjudication of wardship, alleging Jerome S. had resisted a

police officer. Jerome S. admitted the allegation. On March 28,

2005, the trial court sentenced Jerome S. to 12 months of court

supervision.

On November 8, 2005, the State filed a supplemental

petition for adjudication of wardship. The petition alleged

unlawful use of a weapon and attempted disarming of a police

officer stemming from events that occurred in Miller Park in
Bloomington on the evening of November 5, 2005.

Jerome S. filed a motion to quash his arrest and

suppress evidence, urging he was illegally arrested without a

warrant or probable cause. At a hearing on the motion on Decem-

ber 6, 2005, Jerome S. offered the testimony of his sister,

Jolene S., and four of his sister's friends, Sharee Conely, Shea

Brown, Jessica Burkes, and Margiana Jackson, all of whom were

with him in the park on November 5.

Each testified that they went to the park with a group

of friends to fight another group of girls, whom Brown identified

as "Dub City" girls. Jerome S. went along. Conely, Brown,

Burkes, and Jackson gave various estimates that there were

between 10 and 15 people in their group. The other group was

larger, about 20 or 30 people, according to Brown and Burkes.

The two groups of girls did not fight. Instead, Jerome

S. fought with another boy. Burkes testified she heard but did

not see Jerome S. try to use a taser on the boy. Jackson also

indicated she did not see Jerome S. with a taser but saw elec-

tricity coming from a taser. Conely, Brown, and Jolene did not

mention whether Jerome S. tried to use a taser during the fight.

The fight broke up, apparently because the groups

spotted a police officer, though Jolene testified she did not see

the officer until later. Conely, Jolene, Burkes, and Jackson

stated their group turned around and started walking away. Brown

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indicated her group was backing up, still facing the other group.

Conely, Jolene, and Burkes said Jerome S. was yelling at the

other group, but Brown and Jackson denied Jerome S. was doing so.

Conely, Burkes, and Jackson testified the police

officer pulled his car onto the grass near their group, and the

headlights lit the area. Brown and Jolene stated there were no

car lights and the area was very dark. Brown specified that the

officer parked on the street and walked through the park. All of

them testified Jerome S. had nothing in his hand at the time.

Brown testified the officer walked over to the other

group and told them to leave, and they did. Jackson, however,

stated the officer did not tell either group to leave. Burkes

said the other group remained in the area and saw the officer

"jump" on Jerome S., only leaving when the officer called for

backup.

Conely testified Jerome S. was walking away when the

officer told Jerome S. to get down; Jerome S. laid on the ground,

and the officer hit Jerome S. in the head. Brown stated the

officer said Jerome S. needed to calm down. She said Jerome S.

was "moving back" to leave the park, and the officer told him to

get to the ground; Jerome S. did not, so the officer threw him to

the ground and hit him. Jolene, Burkes, and Jackson also testi-

fied their group was leaving the park, but they stated the

officer did not say anything to Jerome S. before knocking him to

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the ground and punching him. Jolene said Jerome S. got up and

the officer put Jerome S. back on the ground, but Jackson testi-

fied Jerome S. pushed the officer off him and punched the officer

before she and the rest of their group grabbed Jerome S.

Jackson testified the officer then told Jerome S. to

get down, so Jerome S. got on his knees, but the officer told

Jerome S. to lay on the ground. All five witnesses agreed Jerome

S. did not grab at or struggle with the officer after the initial

scuffle. At some point more officers arrived. Jolene, Jackson,

and Conely's testimony differed on when that occurred.

Jerome S. also testified. He stated he had gone to the

park to fight the other group. The two groups were still yelling

at each other when the officer came, but he denied yelling that

he was part of "Dub City," as that is a different group of kids.

Jerome S. said his group was walking away and the other

group was following them when the officer drove between the two

groups. Though he looked back to yell at the other group, his

body faced away from them. When he saw the lights from the

police car come from behind the group, he turned around. The

officer then attacked him without saying anything. Jerome S. got

up and the officer punched him in his cheek. Jerome S. admitted

he was getting ready to hit the officer when members of his group

grabbed him.

Jerome S. testified the officer told him to get on the

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ground, so he got on his knees. The officer again told him to

get on the ground, so he laid on his stomach. The officer

handcuffed Jerome S. and searched his pockets. Jerome S. denied

grabbing at or struggling with the officer but admitted yelling

at the officer.

The State offered the testimony of John Swartzentruber,

the Bloomington police officer involved in the November 5, 2005,

incident. Swartzentruber stated that when he responded to a call

about a potential fight in the park, he saw a group of about 50

kids. He parked his squad car on the street and spoke with the

group, who said they were going to play ball. Swartzentruber

started to leave but stopped to speak with a woman who was

standing on her porch. She told him she had heard some kids talk

about fighting. He said he would make sure the kids left.

Swartzentruber then saw another group of about 20

people standing more closely together and yelling. He drove near

to that group, and a young female told him a young, black male

wearing a white T-shirt had a stun gun. She pointed toward the

smaller group, which was about 100 feet away, before she walked

away from Swartzentruber. He called other units and walked

toward the group. As he walked, he heard the ticking sound of a

stun gun.

At that time, the smaller, more compact group was

walking away and yelling "Dub City." The larger group was spread

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out, walking toward the smaller group and yelling "Fuck Dub

City." Swartzentruber identified himself as a police officer and

told the larger group to leave. Those people walked out of his

line of sight. He then told the smaller group to stop. When he

told them a second time, they turned and faced him. Jerome S.,

who was with the smaller group, was a black male wearing a white

T-shirt. Jerome S. had a stick in his hand, which he dropped

when Swartzentruber said to do so.

As a young female talked to Swartzentruber about the

other group, Jerome S. walked in the direction the other group

had headed. Jerome S. was mumbling, "You want a piece of me,"

and other things of that nature.

Swartzentruber pointed at Jerome S. and told him to

stop three or four times. When Jerome S. kept walking,

Swartzentruber pushed him to the ground and attempted to take him

into custody. Though Swartzentruber admitted he did not say

anything to Jerome S. when he pushed Jerome S. down,

Swartzentruber testified he intended to take Jerome S. into

custody for "obstructing."

Jerome S. got to his knees and wrapped his arms around

Swartzentruber's waist. Members of the smaller group began to

pull at Swartzentruber from behind, and the officer felt someone

pulling at his duty weapon from the front. When Swartzentruber

pushed Jerome S. away, Jerome S. stood up and swung at

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Swartzentruber. The officer hit Jerome S. and called for more

officers.

As Swartzentruber was waiting for backup, he directed

his taser at the group. He told Jerome S. he was under arrest

and to get down on the ground. After the third command, Jerome

S. complied. Other officers arrived, and Swartzentruber got on

top of Jerome S. to handcuff him. Jerome S. was cursing at

Swartzentruber and would not cooperate when Swartzentruber began

to search his pockets, so the officer forced Jerome S. to his

side. Swartzentruber found a stun gun in Jerome S.'s left

pocket.

The trial court denied Jerome S.'s motion to quash

arrest and suppress evidence, finding that because Jerome S.

failed to comply with the officer's demands to stop, the officer

had a right to stop and arrest him. Alternatively, the court

found that the officer had probable cause to arrest Jerome S. for

disorderly conduct "because certainly, approaching a hostile

group in a fight situation is going to cause a, potentially a

major problem."

The parties then stipulated that the trial court could

consider the testimony from the hearing as evidence for Jerome

S.'s trial on the charges. The State also presented the testi-

mony of two other Bloomington police officers, Martin Krylowicz

and Bill McGonnigal, who arrived at Miller Park on November 5,

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2005, as Swartzentruber had Jerome S. face down on the ground.

Krylowicz helped arrest Jerome S., and McGonnigal ordered back

the 10 to 15 people who were nearby yelling at Swartzentruber.

The trial court adjudicated Jerome S. a delinquent

minor. It found Jerome S. committed the offense of unlawful use

of a weapon but found him not guilty of attempting to disarm an

officer.

On December 16, 2005, the State filed a petition to

revoke court supervision alleging Jerome S. had violated his

supervision by committing the weapon offense. The trial court

revoked Jerome S.'s supervision on December 19, 2005. At a

hearing on January 31, 2006, the court resentenced Jerome S. to

12 months of probation. The court also imposed 30 days' deten-

tion, with credit for the 44 days Jerome S. had already served.

This appeal followed.

II. ANALYSIS

Jerome S. contends Swartzentruber did not have probable

cause to arrest him for obstructing a peace officer because

Jerome S. merely ignored Swartzentruber. He also urges no

probable cause existed to arrest him for disorderly conduct, as

the trial court alternatively found, because there was only a

potential that his actions would disturb the peace in the future.

Accordingly, Jerome S. argues the trial court should have granted

his motion to quash arrest and suppress evidence.

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 "Review of a motion to suppress presents both questions

of law and fact." In re Christopher K., 217 Ill. 2d 348, 373,

841 N.E.2d 945, 960 (2005). "A trial court's credibility deter-

minations and findings of historical fact will be upheld on

review unless they are against the manifest weight of the evi-

dence." Christopher K., 217 Ill. 2d at 373, 841 N.E.2d at 960.

However, we review de novo the ultimate legal question of whether

the evidence should be suppressed. Christopher K., 217 Ill. 2d

at 373, 841 N.E.2d at 960.

As an initial matter, we note that the trial court

rejected the testimony of Jolene, Burkes, Jackson, and Jerome S.

that Swartzentruber did not say anything to Jerome S. before

knocking Jerome S. to the ground. Instead, the court found that

Swartzentruber repeatedly ordered Jerome S. to stop and Jerome S.

failed to comply with the officer's demands. The court also

found that Jerome S. had been "approaching a hostile group in a

fight situation" when Swartzentruber knocked Jerome S. down to

the ground. Because the court was in the best position to

determine the credibility of the witnesses, we cannot say these

factual findings are against the manifest weight of the evidence,

especially in light of the inconsistencies in Jerome S.'s wit-

nesses' testimony.

Both the fourth amendment to the United States Consti-

tution (U.S. Const., amend. IV) and article I, section 6, of the

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Illinois Constitution (Ill. Const. 1970, art. I, §6) protect

against unreasonable searches and seizures. People v. Moss, 217

Ill. 2d 511, 518, 842 N.E.2d 699, 704-05 (2005). An arrest

without probable cause violates an individual's right against

unreasonable seizures. People v. Washington, 363 Ill. App. 3d

13, 23, 842 N.E.2d 1193, 1202 (2006). The State and Jerome S.

agree that Swartzentruber arrested Jerome S. when the officer

first made physical contact with Jerome S. by knocking him to the

ground. See Washington, 363 Ill. App. 3d at 23, 842 N.E.2d at

1202 ("An arrest occurs when a person's freedom of movement is

restrained by physical force"); People v. Fortney, 297 Ill. App.

3d 79, 86, 697 N.E.2d 1, 6 (1998) ("No formal declaration *** is

necessary for an arrest to occur"). Accordingly, the question

before us is whether Swartzentruber had probable cause to arrest

Jerome S. at that time.

"[P]robable cause exists if the facts and surrounding

circumstances are sufficient to justify a reasonable belief by

the arresting officer that the defendant is or has been involved

in a crime." People v. Garvin, 219 Ill. 2d 104, 115, 847 N.E.2d

82, 88 (2006). "The standard for determining whether probable

cause is present is probability of criminal activity, rather than

proof beyond a reasonable doubt." People v. Lee, 214 Ill. 2d

476, 485, 828 N.E.2d 237, 244 (2005).

Swartzentruber testified at the suppression hearing

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that he intended to arrest Jerome S. for "obstructing" when he

knocked Jerome S. to the ground after Jerome S. ignored his

commands to stop. Section 31-1(a) of the Criminal Code of 1961

provides:

"A person who knowingly resists or ob-

structs 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." 720 ILCS

5/31-1(a) (West 2004).

In People v. Hilgenberg, 223 Ill. App. 3d 286, 289, 585 N.E.2d

180, 183 (1991), the reviewing court found that because "resis-

tance" and "obstruction" both "imply some physical act or exer-

tion," section 31-1 does not proscribe mere argument with a

policeman, but "only some physical act which imposes an obstacle

which may impede, hinder, interrupt, prevent[,] or delay the

performance of the officer's duties."

For example, because the defendants in Hilgenberg only

refused to open the door to a residence or permit the entry of

the sheriff, they did not engage in an act of physical resis-

tance. Hilgenberg, 223 Ill. App. 3d at 290, 585 N.E.2d at 184.

Similarly, where the State charged the defendants in People v.

Stoudt, 198 Ill. App. 3d 124, 127, 555 N.E.2d 825, 827 (1990),

with "'knowingly refus[ing] *** to remove [themselves] from the

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400 block of Lincoln Highway *** after being instructed to do so

by [a De Kalb police officer],'" the court held their conduct

'"did not constitute a violation of a section 31-1 because they

did not engage in physical acts of resistance.

More recently, in People v. Synnott, 349 Ill. App. 3d

223, 227, 811 N.E.2d 236, 240 (2004), the Second District clari-

fied that "the distinction between acting and refraining from

action is [not] dispositive." The defendant in that case was

convicted of obstructing a peace officer after he refused to

comply with a police officer's four orders to exit his vehicle.

Synnott, 349 Ill. App. 3d at 225, 811 N.E.2d at 238. Synnott

cited City of Chicago v. Meyer, 44 Ill. 2d 1, 6, 253 N.E.2d 400,

403 (1969), where our supreme court held the "defendant was

properly convicted [under a city ordinance very similar to

section 31-1] of interfering with the police in the discharge of

their duty to maintain order." "In Meyer, police ordered Vietnam

war protesters and supporters to disperse when the police had

become unable to maintain order among opposing factions and 'the

debate was degenerating to one of physical battle.'" Synnott,

349 Ill. App. 3d at 226, 811 N.E.2d at 239, quoting Meyer, 44

Ill. 2d at 6, 253 N.E.2d at 402.

The Second District distinguished Synnott and Meyer

from Stoudt and Hilgenberg on the basis of whether the officers'

acts were "authorized" as required by section 31-1. In Stoudt,

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the question before the court was whether the refusal to move

constituted an act of resistance, but it had also noted that the

complaints against the defendants were deficient because they did

not properly allege the officer instructing the defendant to move

was engaged in an authorized act. Stoudt, 198 Ill. App. 3d at

128, 555 N.E.2d at 828.

Similarly, the court in Hilgenberg determined:

"[A] failure to respond to an officer's

request to open a door or permit entry to

the premises only has legal significance if

the request was authorized within his official

capacity and the response of the defendant

actually impeded an act the officer was author-

ized to perform." (Emphasis added.) Hilgenberg,

223 Ill. App. 3d at 290, 585 N.E.2d at 184.

Because the officer did not have a warrant or probable cause

coupled with exigent circumstances, he was not authorized to

demand entry, and the defendants had a right to refuse his

request. Hilgenberg, 223 Ill. App. 3d at 291, 585 N.E.2d at 184.

In contrast, the officers giving the orders to the

defendants in Synnott and Meyer were discharging their duties.

The officer in Synnott had stopped the defendant's vehicle after

observing it traveling about 20 miles per hour over the speed

limit; the officer then noticed "indicia of intoxication" and

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repeatedly asked defendant to step out of his car. Synnott, 349

Ill. App. 3d at 224, 811 N.E.2d at 237. The officers in Meyer

were discharging their "duty to maintain order" when they ordered

war protesters to disperse when the protest "was degenerating to

one of physical battle." Meyer, 44 Ill. 2d at 6, 253 N.E.2d at

402.

Here, the trial court credited Swartzentruber's testi-

mony that Jerome S. was walking toward the other group, not out

of the park. It found Jerome S. was "approaching a hostile group

in a fight situation." Given the large number of people in each

group, between 10 and 20 in Jerome S.'s group and between 20 and

50 in the other group, it was obviously imperative and well

within Swartzentruber's duties that he maintain order in the

park. Jerome S.'s act in walking toward the other group despite

Swartzentruber's orders to stop, coupled with the officer's

authority to give such an order, constituted probable cause for

Swartzentruber to arrest Jerome S. Accordingly, the trial court

properly denied Jerome S.'s motion to quash arrest and suppress

evidence. Given our conclusion, we need not address the State's

alternative arguments.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

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STEIGMANN, P.J., and APPLETON, J., concur.

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