Find Legal Information

1-00-3834

JUSTICE REID delivered the opinion of the court:

Following a hearing, minor respondent Anthony V. was found delinquent for aggravatedunlawful use of a weapon. On appeal, respondent contends the trial court erred by determiningthat the police conducted a lawful stop and search, and by denying his motion to quash arrest andsuppress evidence.

Respondent's motion to quash arrest and suppress evidence was heard at trial. Chicagopolice officer Navakovic, who was the sole witness to testify, stated that in August 2000 he andhis partner were patrolling a park in Chicago in a marked police car. In the late afternoon of theday in question, a teenager approached the police car and told the officers that there was "a kid"in the park who was showing a gun to other young people. The witness gave the police adescription of the suspect and indicated the direction where the suspect went. The police did notget the witness's name. About five or six other "kids" also approached the officers and told themthe same thing. Officer Navakovic subsequently prepared a report about the incident in which hementioned only the first witness who approached them with information. He did not file anysupplemental reports.

Officer Navakovic further testified that after receiving this information, he drove toanother location about 200 feet away. The officer saw respondent, who matched the descriptiongiven and was at the designated location on May Street. At that time, respondent was not doinganything illegal. Officer Navakovic approached respondent and asked him if he had anything"on" him, and respondent answered that he did not. The officer then performed a protective pat-down

search of respondent and felt an object with a handle in respondent's rear pocket. OfficerNavakovic recovered the object, which was a fully loaded .38-caliber gun.

On cross-examination, Officer Navakovic stated that the subject was described by thefirst witness as a husky Hispanic 16-year-old youth, wearing black jeans, a blue shirt and whitegym shoes, and carrying a gun. That witness told the police that the suspect was showing a gunto "all the kids" in the park and pointed to the southwest, toward May Street, when he showedwhere the suspect went. Officer Navakovic encountered the other five or six witnesses when hewas driving in that direction. Those witnesses pointed toward respondent and also said thatrespondent was "showing off" a gun. The officer saw respondent within about one minute andrecognized him as matching the description given by the witnesses and being in the locationgiven. Officer Navakovic stated that he performed the pat-down search for his own protection.

On redirect examination, Officer Navakovic stated that he could not remember if the firstwitness told him that the suspect's name was Antonio, but he did give a name that began with an"A." The parties stipulated that the police report did not contain the word "husky" or statewhether respondent was in view when the first witness flagged down the police.

On re-cross-examination, Officer Navakovic testified that no one in the area other thanrespondent matched the description given by the witnesses.

In closing argument, defense counsel attempted to discredit the numerous witnessesmentioned by Officer Navakovic as "nebulous" because the officer did not get their names anddid not mention them in the police report. Counsel characterized the first witness as anonymous,arguing that he was not credible because his name was not known. He further argued that ananonymous tip was insufficient to justify the police stop of respondent, relying upon the UnitedStates Supreme Court's decision in Florida v. J.L., 529 U.S. 266, 274, 146 L. Ed. 2d 254, 262,120 S. Ct. 1375, 1380 (2000) (holding that where an anonymous tip of a person carrying a guncame from a telephone call to the police and the caller's identity and source of knowledge wereunknown, the tip was not sufficient to justify the police stop and search of the person describedbecause the tip lacked the moderate indicia of reliability).

In response, the State argued in closing that this case was distinguishable from J.L., wherethe tip came from a telephone call and where the time frame of the information, as well as theidentity and location of the informant, was unknown. The State pointed out that the tip here,unlike the one in J.L., was reliable because the informant was at the scene rather than at a remotelocation, and the information was corroborated by other witnesses. The State mentioned therationale in J.L. of preventing harassment resulting from police action on anonymous tips andargued that it did not apply in this case because the description was much more specific, andmore importantly, if it proved to be inaccurate, the police could have easily returned to find theinformants. The State cited this potential accountability of the informants as further indicia ofthe reliability of the information. Defense counsel replied that here, as in J.L., the police did notindependently observe respondent engaged in any illegal activity.

In ruling, the trial court relied upon the Supreme Court's discussion of the reasonablenessof an official suspicion, which is to be measured by what the police knew before they conductedtheir search. The court distinguished the facts of this case, stating that, here, the informationcame from several "live" informants (rather than it believed Officer Navakovic's suspicions) andfound the search to be appropriate. The court then denied respondent's motion to quash arrestand suppress evidence.

The parties proceeded to trial and stipulated that Officer Navakovic would testifyconsistent with his hearing testimony. Officer Navokovic took the stand briefly and stated thatrespondent was located on a public way when he was stopped and that respondent was 16 yearsold. The trial court found respondent delinquent for aggravated unlawful use of a weapon, andreleased him on home confinement and with a curfew. The court subsequently sentencedrespondent to one year's probation with conditions.

On appeal, respondent essentially repeats the argument he made at the hearing to quasharrest and suppress evidence, contending that the stop and pat-down search violated hisconstitutional rights. He contends that neither the stop nor the pat-down search was reasonable.,based upon J.L., because the informant's name was not known. Respondent also challenges thecredibility of the officer's testimony concerning the corroboration by other witnesses.

Undisputed facts in a motion to suppress are reviewed de novo, but the trial court'sfindings of fact and credibility determinations, and inferences drawn therefrom by the trial courtand arresting officers, will be given due deference. People v. Ross, 317 Ill. App. 3d 26, 29(2000). The trial court's determination of reasonable suspicion supporting the stop of a personfor temporary questioning is reviewed de novo. People v. Young, 306 Ill. App. 3d 350, 353(1999); see also Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).

A brief investigatory stop of a person in a public place is justified when it is based on thepolice officer's reasonable inferences made from specific articulable facts. Ross, 317 Ill. App. 3dat 29; Young, 306 Ill. App. 3d at 353. The specific facts known to the police are examined todetermine the reasonableness of the stop and whether a reasonable suspicion existed based onthose facts. Ross, 317 Ill. App. 3d at 29.

This court has recently held, based on the decision in J.L., that an anonymous tip receivedfrom a telephone call to an emergency dispatcher lacked sufficient indicia of reliability to justifythe stop and frisk of the defendant. People v. Carlson, 313 Ill. App. 3d 447, 450 (2000). Theindicia of reliability was lacking because no evidence was presented to show that the call couldbe traced or the caller found again and held accountable if the information proved to be false. Carlson, 313 Ill. App. 3d at 449.

In the instant case, the indicia of reliability of the information received by OfficerNavakovic was not lacking. Here, although their names were not known, the informants werenot anonymous in the same sense as the callers in J.L. and Carlson. The informants here wereidentifiable because they approached the police and spoke to them in person. Furthermore, theywere still in the park where the incident occurred when they spoke to the police. The informationreported was timely, as shown when respondent was found and stopped within one minute. Therefore, where information was provided by eyewitnesses who were still at the scene of theincident, it was reasonable to infer that the information was reliable.

Moreover, unlike the caller-informants in J.L. and Carlson, the informants werephysically present in this case and were not untraceable. As the trial court noted, the officerseasily could have returned and found the informants had the information proved to be false. Finally, the information provided by the first informant was corroborated by five or six otherswho were at the scene. Despite respondent's assertion that such corroboration should bediscredited, the trial court apparently believed Officer Navakovic's account, and the trial court'scredibility determination will be given due deference. Ross, 317 Ill. App. 3d at 29. Theinformation given to the police created a reasonable inference that criminal activity had occurredor was about to take place. Where the information was received from informants who could befound and held accountable, such information provided a reasonable basis for Officer Navakovicto conduct an investigatory stop of respondent. Cf. Carlson, 313 Ill. App. 3d at 449-50. Therefore, the trial court properly determined that the stop, which was based on a reasonablesuspicion, was justified. Ross, 317 Ill. App. 3d at 30.

Once the stop was made, it was reasonable for Officer Navakovic to search respondent,despite respondent's denial that he was carrying anything illegal. People v. Rivera, 272 Ill. App.3d 502, 505 (1995). The specific information that the police received was that respondent wascarrying a gun. Under such circumstances, where there was a reasonable belief that a weaponwas concealed, the protective pat-down search was appropriate. Rivera, 272 Ill. App. 3d at 505;see also People v. Freeman, 219 Ill. App. 3d 240, 245 (1991). Therefore, the trial court properlydenied defendant's motion to quash arrest and suppress evidence.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

GREIMAN and QUINN, JJ., concur.