In re D.L., 2017 IL App (1st) 171764 (December). Episode 445 (Duration 9:29)

Kid is seen walking away from the location of a “shots fired”, he starts to run, when they catch him he has a gun.

Gist

Respondent was charged with various gun charges in juvenile court. He filed a motion to quash defendant’s arrest and suppress evidence, alleging that he was subjected to an unreasonable search and seizure.

Shots Fired

Officer Scaduto testified that on the evening of March 28, 2017, he was working with three partners—Officers Borne, Riley, and Boubach—in an unmarked squad car. The officers were in plainclothes, wore “CPD badges” and had “police” on the back of their vests.

Around 8:20 p.m., the officers received a dispatch concerning multiple calls of shots fired on “the 117th block of Loomis.” The dispatch gave no information about the identity of the suspects or callers, other than “more than one person called in th[e] incident.”

Quick Response

Officer Scaduto and his partners, who were about “one minute away on Halsted Street,” responded to the dispatch and began to drive toward the 117th block of South Loomis Street. One minute later, while travelling westbound on 116th Street, the officers saw respondent and another male walking eastbound on the sidewalk about “two houses away from Loomis.”

Officer Scaduto did not know respondent, or see any bulges in his clothing. Officer Scaduto observed that respondent and the other male were “walking quickly” away from the area of the shots fired call. There were no other people on the street at the time, and Officer Scaduto observed respondent for approximately five seconds.

Approach The Kid

Officer Scaduto stated that, “[d]ue to the fact that it was a shots fired call in that area and [respondent] was walking quickly away from that shots fired call, we attempted to conduct a street stop *** [to] have a conversation about the shot[s] fired call and if they heard anything.”

The officers approached, and Officer Scaduto “told respondent to stop so we could have a conversation about the shots fired call.” When asked whether this was “a request or *** an order,” Officer Scaduto clarified that “it was an order.” The male who was walking with respondent “complied” and headed toward the police car. Respondent, however, “did not comply with Officer Scaduto’s order and began running” northbound down an alley.

They Catch Him

Officer Scaduto pursued respondent on foot, did not lose sight of him, and detained respondent less than one minute later. Once he apprehended respondent, Officer Scaduto handcuffed respondent, “detained him[,] and placed him in custody.” Officer Scaduto conducted a pat-down because he had “reason to believe that [respondent] ran *** because he was concealing a firearm.”

Officer Scaduto denied that respondent was arrested at this point, stating that it was “part of the field interview.”

The Pat Down

During the pat-down, Officer Scaduto recovered a .380-caliber semiautomatic handgun from inside the pocket of respondent’s jacket. The handgun was “stove piped,” meaning it had a malfunction that “only happens after you actually shoot the firearm.” After he recovered the weapon, Officer Scaduto placed respondent under arrest.

Officer Scaduto explained that he performed a pat-down “[b]ased on the totality of the circumstances, the shots fired call, the minor respondent walking away from the area of the shots fired call ***, and that he and another individual were the only ones on the street at the time of the shots fired call in that area.” He further asserted that he had “reason to believe that he was concealing a firearm” based on the “shots fired call” and “that he fled from me and didn’t obey *** my verbal commands.”

Defendant’s Argument

Based on the above testimony, respondent argued that before Officer Scaduto had ordered him to stop, the officer had only observed him for five seconds, at which time he had been engaged in “normal behavior” by “walking away from a shooting scene.” Respondent pointed out that Officer Scaduto did not observe any bulges or weapons and that there was no description, eyewitness, or informant connecting respondent to the shots fired. Respondent further argued that it was not enough to be in an area where criminal activity occurred and that flight from the police was not, standing alone, sufficient to establish probable cause.

State’s Argument

The State specifically contends that the totality of the circumstances supported a reasonable articulable suspicion that respondent “may have been involved in criminal activity” and a reasonable belief that respondent was armed and dangerous.

In this case, the State argues that Officer Scaduto’s intent at the time he ordered respondent to stop is irrelevant, because respondent was only “seized” for purposes of the fourth amendment when Officer Scaduto captured him after he fled down an alley.

The State asserts that the officer was justified in stopping respondent at that point, describing the “totality of the circumstances” as “there were numerous calls of shots fired; *** respondent and his companion were walking quickly away from the crime scene of shots fired; *** no other people were in the area except for respondent and his companion; [and] *** the officers attempted to conduct a field interview but respondent turned around and fled.” ¶ 21 In so arguing, the State seemingly concedes that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop of respondent at the time that he initially ordered him to stop.

We agree.

Trial Court Agrees

The circuit court granted respondent’s motion to quash arrest and suppress evidence. The court concluded that “the fact that two individuals happen to be on the street where shots are fired, does not make them subject to give up their fundamental civil rights.”

Fourth Amendment

The fourth amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. “This provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).

Under the Terry exception, the police may conduct a brief investigatory stop “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The police officer “must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant that intrusion.” Thomas, 198 Ill. 2d at 109. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.

The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity. [Citation.]” Wardlow, 528 U.S. at 123-24. The underlying facts are viewed “from the perspective of a reasonable officer at the time that the situation confronted him or her.” Thomas, 198 Ill. 2d at 110.

Analysis

At that time, the officer had observed respondent for five seconds as he was “walking quickly” on the sidewalk of 117th Street. Although the officer described respondent as walking “away from the area of the shots fired call,” his testimony also established that respondent was not walking on either 116th Street or Loomis Street, the intersection where the shots were reported to have originated, and instead respondent was between one and two blocks away from that location. Nevertheless, as the trial court concluded, most people would be inclined to make a quick departure from the scene of gunfire, and accordingly, such behavior would not be unusual. Even Officer Scaduto implicitly acknowledged that he had no suspicion that respondent had engaged in criminal conduct at that time, since his claimed intent was to “have a conversation” with him about whether he had “heard anything” regarding the shots fired.

Moreover, the circumstances surrounding Officer Scaduto’s order were clearly meant to exhibit a show of authority that would be indicative of a seizure. Specifically, Officer Scaduto and three other officers approached respondent, and Officer Scaduto used particular language when testifying, which indicated that he intended to convey to respondent that compliance with his request was mandatory.

Yea But He Ran

The court quoted 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.”  (quoting 2 Wayne R. LaFave, Search and Seizure § 3.6(e), at 323-24 (3d ed. 1996)).

The State argues, without supporting authority, that a “reasonable person innocent of a crime would not flee from the police” (emphasis in original). However, the United States and Illinois Supreme Courts have held otherwise. See Wardlow, 528 U.S. at 125 (Accepting as “undoubtedly true” that “there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity.”)

Although “[u]nprovoked flight in the face of a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop” (emphasis added) (Thomas, 198 Ill. 2d at 113), there is no bright-line rule authorizing the temporary detention of anyone who flees at the mere sight of the police (see Wardlow, 528 U.S. at 126. To the contrary, it is well settled that flight alone is not sufficient to establish reasonable suspicion that a person has committed, or is about to commit, a crime.

It is only when that flight is coupled with other factors that it may support reasonable suspicion justifying a Terry stop. In this case, the trial court found no other factors supporting a finding that Officer Scaduto had reasonable suspicion that respondent committed or was about to commit a crime. As discussed above, aside from his flight, there was no testimony showing that respondent was acting suspiciously in any way. In these circumstances, we conclude that respondent’s flight alone did not justify the subsequent Terry stop.

Wardlow Rejected

In so holding, we also reject the State’s reliance on Wardlow, 528 U.S. 119. In Wardlow, the Supreme Court held that the defendant’s unprovoked, “[h]eadlong flight” was one factor among several that, taken together, supported an officer’s reasonable suspicion of criminal activity.

In particular, the Supreme Court noted that the officers saw defendant in an “area known for heavy narcotics trafficking,” where the officers expected to encounter “drug customers” and “lookouts.” The officers saw the defendant standing next to a building holding an opaque bag, and upon looking in the direction of the officers, the defendant fled through a gangway and an alley. The Supreme Court held that the above circumstances created a reasonable suspicion of criminal activity which justified a Terry stop.

Here, however, unlike in Wardlow, the trial court found no other factor supporting reasonable suspicion to justify a Terry stop when considering the totality of the circumstances. We do not find the trial court’s conclusion on this point to be manifestly erroneous.

Bad Stop Bad Pat Down

Having concluded that the police were not justified in temporarily detaining respondent, we must also conclude that the subsequent search was not justified. A police officer making a reasonable investigatory stop may conduct a protective search if he has reason to believe the suspect is armed and dangerous. Adams v. Williams, 407 U.S. 143, 146 (1972).

“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” However, the right to perform a protective search presupposes the right to make the stop. The police may only perform a protective search if they are entitled to stop the person in the first place.  In order for a frisk to be constitutionally reasonable, (1) the stop must be proper, (2) the officer must have reason to know that the defendant is armed and dangerous, and (3) the scope of the search must be strictly limited to a search for weapons.

Since Officer Scaduto did not provide specific and articulable facts justifying the Terry stop, the protective search performed during that stop also lacked a sound constitutional basis.

Holding

After giving the appropriate deference to the trial court’s findings of fact, we cannot conclude that the trial court was manifestly erroneous when it found the defendant had met his burden of showing that the seizure and search were unreasonable and violated his rights under the fourth amendment.

For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

See Also

People v. Timmsen, 2016 IL 118181 (March). Episode 153 (Avoiding A Traffic Roadblock May Create Reasonable Suspicion Justifying a Traffic Stop)