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FIRST DIVISION  
June 16, 2003

Minor respondent-appellant D.W. was adjudicated delinquentupon a finding that he possessed more than 100 grams of acontrolled substance. He was sentenced to three years'probation. He appeals his adjudication of delinquency andsentence.

BACKGROUND

On November 20, 2000, D.W. filed notice of his motion tosuppress physical evidence seized subsequent to his warrantlessarrest on October 15, 2000. The motion to suppress alleged thaton October 15, 2000, police officers seized evidence that mayincriminate D.W.; D.W. had a valid property interest in the areasearched; the seizure of the evidence was without lawfulauthority because the arrest was made without a warrant, noconsent for arrest, search or seizure was given, the search andseizure violated D.W.'s right under the fourth amendment of theUnited States Constitution and sections 2, 6 and 10 of theIllinois Constitution; and the search and seizure was notincident to or contemporaneous with the valid arrest ofpetitioner.

At the November 28, 2000, hearing on D.W.'s motion tosuppress, the parties stipulated that there was no search warrantor arrest warrant.

Officer David Harris testified that on October 15, 2000, Harris spoke with a citizen face to face and that citizen toldhim that there was someone selling drugs in front of the buildingat 2629 South Calumet. The citizen described the seller as ablack male with a large build named Darrian. Officer Harrisstated that he knew of the "Darrian" referred to because he hadseen him in the neighborhood before. Harris stated that thepolice station was two blocks from the address given, he was inthat area every day and he considered it to be a heavy narcoticstrafficking area. Officer Harris testified that approximately 30minutes elapsed between his receiving the information from theunnamed citizen and his going to the location. While in uniform,he and his partner proceeded to 2629 South Calumet. Harrisstated that he and his partner approached from the front of thebuilding and other officers approached from the rear of thebuilding. When he approached the building, Harris noted thatthere were four people standing outside, two women and two men. Harris stated that one of the men fit the description provided tohim earlier and that respondent is a fairly large individual,approximately six feet, 1 inch, weighing around 225 pounds.

Officer Harris testified that when he drove up to building,he "[e]xited the vehicle and walked toward the building. As wegot toward the front of the building we motioned to the defendantthat we needed to speak to him and at that time he fled. *** Heran up the stairs." The three other individuals did not move. Officer Harris chased respondent up the stairs, and [respondent]"entered the apartment at the top of the stairs." Harris was 5or 10 feet behind respondent. When Harris arrived at theapartment door, the door "was slightly ajar" so he "just pushedit open." When he entered the apartment, he saw respondent gointo the rear bedroom and "remove a large plastic bag from hisjacket and attempt to conceal it under a bed." Officer Harristestified that the large plastic bag looked like "a sandwich bagcontaining white powder," which he believed to be cocaine. Harris then "took control of the [respondent] and [his] partnerrecovered the bag." Prior to entering the apartment, Harris didnot know who lived in the apartment.

On redirect examination, Officer Harris testified that he"dealt" with the unnamed citizen providing the informationseveral times in the past and the person wished to remainanonymous. He stated that he knows where the unidentified personlives. Harris further testified that when he observed respondenton the outside stairs, he did not see any hand to handtransactions performed by respondent or money exchanged, he didnot know whether respondent had drugs and he did not seerespondent violate any state, local or federal laws. Harrisaffirmed that he did not conduct surveillance of the area.

Following Officer Harris's testimony, the State moved for adirected finding on respondent's motion to suppress. The trialcourt postponed argument and asked the parties to gather case lawfor its review. D.W. submitted a brief to the juvenile courtasserting that no exigent circumstances existed in this case tojustify a warrantless search of the minor's residence, the minorwas not under investigation of a recently committed crime, thepolice officers did not observe the minor violate any laws andthe officers were not acting upon a clear showing of probablecause.

During the December 7, 2000, hearing on the State's motionfor directed verdict, the court held that the officers did nothave "true probable cause upon arrival at the scene" but "it thenbecomes probable cause upon the minor fleeing." The court alsostated that whether the offense under investigation was recentlycommitted was obvious, there was no unjustified delay by theofficers during which time a warrant could have been obtained,"perhaps" a grave offense was involved, the officers were actingupon a clear showing of probable cause, there was a likelihoodthat the suspect would have escaped, there was a strong reason tobelieve the suspect was on the premises, and the arrest was madepeaceably. The motion to suppress evidence was denied.

At the January 4, 2001, stipulated bench trial, the partiesstipulated to the previous testimony of Officer Harris. Ifcalled to testify, Officer Ormand (Officer Harris's partner)would testify as to the chain of custody of evidence seized andforensic scientist Dorothy Kernan would testify that the evidencetested positive for cocaine with an estimated weight of 124.2grams. The respondent moved for a directed finding following thestipulations. Without argument, the motion was denied. Duringrespondent's case in chief, defense counsel adopted the argumentarticulated in her motion to suppress and the oral arguments madeon December 7, 2000. The court made a "finding of delinquency ofpossession of controlled substance in excess of 100 grams."

In February 2001, D.W. was sentenced to 3 years' probation,30 days in the juvenile detention center, mittimus was stayed, 24days of "SWAP," "TASC" referral, random drug drops, mandatoryschool, and a 6 p.m. curfew.

D.W. presents the following issues for review: (1) whetherthe juvenile court erred in denying his motion to suppressevidence seized following a warrantless entry into D.W.'sresidence; and (2) whether the juvenile court improperlyconcluded at D.W.'s sentencing that he was a gang member.

ANALYSIS

I. MOTION TO SUPPRESS

D.W. contends that the juvenile court erred in denying hismotion to suppress the evidence obtained at his home because: (1)the uncorroborated tip by an unnamed citizen failed to establishprobable cause; and (2) no exigent circumstances existed tojustify the warrantless entry into D.W.'s residence. The Stateresponds that the "hot pursuit" entry into the home and thesubsequent arrest were proper based on the circumstances. Further, the State argues that probable cause to arrest aroseupon respondent's flight from police and exigent circumstancessupported Officer Harris's entry into the home.

A. Standard of Review

Ordinarily, the decision of a trial court on a motion toquash arrest and suppress evidence will not be disturbed by areviewing court unless that finding is determined to bemanifestly erroneous. People v. Love, 199 Ill. 2d 269, 274, 769N.E.2d 10 (2002). However, when neither the facts nor thecredibility of the witnesses is questioned the issue of whetherexigent circumstances were present this court will consider thequestion de novo. People v. Foskey, 136 Ill. 2d 66, 76, 554N.E.2d 192 (1990). Because the facts and credibility of thewitness are not called into question here, we will review themotion to suppress de novo.

The defendant bears the burden of proof at a hearing on amotion to suppress and must make a prima facie case that theevidence was obtained by an illegal search and seizure. Peoplev. Berg, 67 Ill. 2d 65, 68, 364 N.E.2d 880 (1977). If adefendant makes a prima facie case, then the State has the burdenof going forward with the evidence to counter the defendant'sprima facie case. People v. Wingren, 167 Ill. App. 3d 313, 319,521 N.E.2d 130 (1988).

B. The Tip as Probable Cause

Respondent asserts that the juvenile court erred in denyinghis motion to suppress evidence because the evidence was obtainedas a result of the warrantless entry into his home and theuncorroborated tip by an unnamed citizen failed to establishprobable cause. The State contends that based on thereliability of the tip provided by Officer Harris's informant,respondent was subject to lawful arrest at the time that he fledfrom police. The State maintains that the unnamed citizen's tipwas corroborated by the citizen's "accurate physical descriptionof the Minor Respondent; his knowledge that the MinorRespondent's first name was Darian [sic]; that Officer Harrisalready knew of Darian [sic] as a 'regular' from theneighborhood; that based upon the citizen's physical descriptionof the offender, Officer Harris recognized the offender as beingthe same Darian [sic] with whom he was familiar; that Darian[sic] was in fact present at the location where the citizen saidhe would be; and that Darian [sic] was present in a 'highnarcotics area.'" We hold that this information, alone, did notconstitute probable cause to arrest the respondent.

Probable cause exists for an arrest when the totality of thefacts and circumstances known to the officers is such that areasonably prudent person would believe that the suspect iscommitting or has committed a crime. People v. Montgomery, 112Ill. 2d 517, 525, 494 N.E.2d 475 (1986). A police officer'sknowledge of probable cause may be based on an informant's tipand, if the facts supplied in such a tip are essential to afinding of probable cause, the tip must be reliable. People v.Patterson, 282 Ill. App. 3d 219, 227, 667 N.E.2d 1360 (1996). The informant's veracity, reliability and basis of knowledge aredeterminative. People v. Halmon, 225 Ill. App. 3d 259, 274, 587N.E.2d 1182 (1992). One indicium of reliability of informationexists when the facts learned through police investigationindependently verify a substantial part of the informant's tip. Patterson, 282 Ill. App. 3d at 227. The need for corroborationof an anonymous informant's tip is obvious where that person cannever be cross-examined as to the reliability of his informationor his motivation for providing it.

In our view, the substance of the tip here failed toadequately establish the informant's veracity or basis ofknowledge. Officer Harris's citizen-informant described the drugseller as a black male with a large build named "Darrian." Harris affirmed during the suppression hearing that one of themen on the stairs fit the description provided to him. Harristestified in detail as to the other male ("Young male black inhis teens, say about 5'7", 130 pounds"). However, he did notdescribe the individual that he believed to be respondent. Harris merely affirmed that the individual that he pointed out incourt, the respondent, was significantly larger than the othermale he saw there. Officer Harris also testified that he knew ofthe "Darrian" referred to because he had seen him in theneighborhood. However, Harris also stated that he had neverarrested Darrian and did not know that respondent lived in thebuilding until after his arrest. The fact that Harris had seen a"Darrian" in the neighborhood before did not validate theinformant's tip. These factors do not corroborate theinformant's tip that criminal activity was afoot. An officer'sreasonable suspicion of criminal activity requires that a tip bereliable in its assertion of illegality, not just in its tendencyto identify a determinate person. People v. Sparks, 315 Ill.App. 3d 786, 794, 734 N.E.2d 216 (2000).

More importantly, the fact that the informant "is a person[Harris] dealt with several times in the past" did not lend tothe reliability of the citizen's information. There was notestimony that the previous dealings supplied tips relating tonarcotics or resulting in an arrest. See generally People v.Adams, 131 Ill. 2d 387, 546 N.E.2d 561 (1989).

Officer Harris did not know (or at least did not testify asto) what kind of drugs were being sold, how long respondent hadbeen there or the basis of the informant's knowledge. Harristestified that he did not conduct any surveillance of thebuilding, so at that time he could not answer those questionseither. Here, when the officers arrived at the address provided,they could not, based on their observations, articulate factsthat would demonstrate that a crime had occurred or wasoccurring. Simply because the information about the drugs turnedout to be true does not mean that it provided Officer Harris,prior to pursuing respondent, with a reasonable basis forsuspecting him of unlawful conduct. See Sparks, 315 Ill. App. 3dat 794-95.

Based on the insufficient showing of the informant's basisof knowledge or the reliability of the his information and theminimal independent corroboration of the anonymous tip, weconclude that, under the totality of the circumstances in thepresent case, probable cause to arrest did not exist. See Peoplev. Ross, 133 Ill. App. 3d 66, 73, 478 N.E.2d 575 (1985).

C. Flight

Our next question is whether respondent's flight constitutedprobable cause to arrest. The State asserts that Harris's"articulable suspicion" "blossomed into probable cause when the[respondent] took headlong flight from the officer as heapproached." We find Illinois v. Wardlow, 528 U.S. 119, 145 L.Ed. 2d 570, 120 S. Ct. 673 (2000), instructive in resolving thisissue.

In Wardlow, the defendant fled upon seeing police officerspatrolling an area known for heavy narcotics trafficking. Twoofficers caught the defendant on the street, stopped him, andconducted a patdown search for weapons. Upon discovering a .38-caliber handgun, the defendant was arrested. The trial courtdenied the defendant's motion to suppress, finding that the gunwas recovered during a lawful stop and frisk. This courtreversed the defendant's conviction, concluding that the gunshould have been suppressed because the arresting officer lackeda reasonable suspicion sufficient to justify an investigativestop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88S. Ct. 1868 (1968). The Illinois Supreme Court affirmed. TheUnited States Supreme Court granted certiorari solely on thequestion of whether the initial stop was supported by reasonablesuspicion.

The United States Supreme Court, in reviewing its reasoningin Terry, noted that an officer may, consistent with the fourthamendment, conduct a brief, investigatory stop when the officerhas a reasonable, articulable suspicion that criminal activity isafoot. Wardlow, 528 U.S. at 123, 145 L. Ed. 2d at 576, 120 S.Ct. at 675, citing Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88S. Ct. at 1884. The officer must be able to articulate more thanan "'inchoate and unparticularized suspicion or "hunch"'" ofcriminal activity. Wardlow, 528 U.S. at 123-24, 145 L. Ed. 2d at576, 120 S. Ct. at 676, quoting Terry, 392 U.S. at 27, 20 L. Ed.2d at 909, 88 S. Ct. at 1883. The Court further noted that thefact that the stop occurred in a "high crime area" is among therelevant contextual considerations in a Terry analysis. Wardlow,528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at 676. However, in Wardlow, it was not merely defendant's presence in anarea of heavy narcotics trafficking that aroused the officers'suspicion, but his unprovoked flight upon seeing the police. TheCourt concluded that the arresting officer was justified insuspecting that the defendant was involved in criminal activity,and, therefore, in investigating further. Wardlow, 528 U.S. at125, 20 L. Ed. 2d at 577, 120 S. Ct. at 676. While maintainingthat its conclusion was consistent with its previous holding inFlorida v. Royer, 460 U.S. 491, 75 L. Ed 2d 229, 103 S. Ct. 1319(1983) (when an officer, without reasonable suspicion or probablecause, approaches an individual, the individual has a right toignore police and go about his business), the Court observed that"unprovoked flight is simply not a mere refusal to cooperate." Wardlow, 528 U.S. at 125, 145 L. Ed. 2d at 577, 120 S. Ct. at676. The Court stated:

"Flight, by its very nature, is not 'going about one'sbusiness'; in fact, it is just the opposite. Allowingofficers confronted with such flight to stop the fugitiveand investigate further is quite consistent with theindividual's right to go about his business or to stay putand remain silent in the face of police questioning." Wardlow, 528 U.S. at 125, 145 L. Ed. 2d at 577, 120 S. Ct.at 676.

Respondent finds Wardlow distinguishable because Wardlow wasa stop and frisk case for weapons on the public street. Respondent contends that "the issue here was the warrantlessentry and seizure of evidence in a private home." While we agreethat Wardlow is factually distinguishable, we find it instructivein our analysis of the reasonableness of the officer's action. In Wardlow, the police had not decided to stop and investigatedefendant until he attempted to flee. The defendant in Wardlowmerely looked in the officers' direction and fled.

Here, when motioned to by police, respondent fled. While wedo not believe that the respondent's flight constituted probablecause to arrest (see People v. Moore, 286 Ill. App. 3d 649, 654,676 N.E.2d 700 (1997), quoting 2 W. LaFave, Search & Seizure