Find Legal Information

SIXTH DIVISION

November 30, 2001

No. 1-00-3364

The 13-year-old minor-respondent, S.V., was charged with aggravated unlawful use of aweapon, unlawful possession of a firearm, and unlawful use of a weapon. After a bench trial S.V.was found guilty of aggravated unlawful use of a weapon. S.V. was adjudicated delinquent andsentenced to probation for one year.

Respondent argues on appeal that the evidence seized must be suppressed and the convictionreversed because the arresting officer did not have reasonable articulable suspicion to justify the stopand frisk of S.V. We find the stop and frisk were legally justified and affirm.

BACKGROUND

On April 17, 2000, at about 5 p.m., Officer Michael Nallen and his two partners receivedseveral anonymous radio calls about a gang fight with shots fired at Cermak Road and WesternAvenue. Officer Nallen was given some descriptions of the suspects, but could not recall thespecific descriptions given. At about 5:15 p.m., in response to these multiple calls, OfficerNallen drove westbound toward Cermak and Western. Approximately, two blocks east and oneblock south of that location, at approximately 2238 West 21st Street, he observed the respondentin the street, walking eastbound with two other people. Officer Nallen saw the respondent andthe two other people flashing gang signs of the Satan Disciples at passing vehicles and passingcitizens. Officer Nallen did not speak to citizens, either driving in their cars or out on the street,who had been the subject of the gang signs flashed by respondent because they had "fled." During the hearing on the motion to suppress Officer Nallen testified:

"Q. So you were investigating gang-related shootings?

A. Yes.

Q. That's when you came upon the minor respondent andhis two other friends flashing gang signs, correct?

A. That's correct.

Q. You recognized these to be gang signs?

A. That's correct.

Q. Upon seeing these gang sings, you curbed your vehicle?

A. Right.

Q. You approached the minor respondent?

A. Correct.

Q. And you wanted to ask him about what he had beendoing in relation to the gang shootings, correct?

A. Correct.

Q. That's when you performed a protective pat-down?

A. Correct."

Regarding his reasons for the protective pat-down, Officer Nallen testified on cross-examination by the State as follows:

"Q. Why did you perform a protective pat-down of thisminor?

A. For my safety and the safety of my partners.

Q. For your safety in what way?

A. I don't want to die.

Q. Were you concerned that there were guns on thisminor?

A. Yes, I was."

Officer Nallen also testified on cross-examination as to his familiarity and experience with thearea where he encountered the respondent:

"Q. How long have you been a police officer?

A. It will be seven years in November.

Q. Are you familiar with this area in which you werearresting the minor respondent?

A. Yes, I am.

Q. How would you describe this area?

A. That area is Satan Disciples territory, highly ganginfested. We have had numerous shootings in that area.

Q. Have you made arrests for weapon offenses in thatarea?

A. Absolutely.

Q. How many have you made?

A. In my career there?

Q. Yes.

A. I don't know if I can tell you offhand. I made numerousweapons arrests on that block, the 21st Street block.

Q. You knew the shootings, the gang shootings, that youwere going to investigate [were] done by Satan Disciples, correct?

A. That information, I didn't have. But it was in their area,so I was figuring they were probably involved.

Q. In your experience as a police officer for the last sevenyears, you thought the gang shooting was involving SatanDisciples?

A. Correct."

The respondent and the two other people he was with were told to place their hands onthe police car. As Officer Nallen patted down the area of respondent's front waistband, he feltwhat he believed to be a weapon. Officer Nallen then reached in and retrieved a .357 Magnumhandgun and placed S.V. under arrest.

The trial judge, considering the totality of the circumstances, denied respondent's motionto suppress. The parties then stipulated that the evidence for trial was the same as the evidencefrom the suppression hearing. S.V. was adjudicated delinquent based on being found guilty ofaggravated unlawful use of a weapon. This appeal followed.

ANALYSIS

The respondent contends that the police illegally stopped and searched him because theydid not have reasonable suspicion that he had committed a crime or that he was armed and animmediate threat to them. The State argues that the respondent was properly stopped andsearched because the police had reasonable suspicion to believe that he had been involved in agang shooting and therefore could pat him down for weapons.

A trial court's ruling on a motion to suppress will not be reversed unless it is manifestlyerroneous. People v. Hoskins, 101 Ill. 2d 209, 212 (1984). When there is no dispute as to thefacts or as to witness credibility the standard of review is de novo. People v. Dilworth, 169 Ill.2d 195, 201 (1996). Here, the facts and witness credibility are not in dispute, therefore we willconduct a de novo review.

I. TERRY STOP

The respondent contends his federal and state constitutional rights were violated because the police did not have legal justification to conduct a Terry stop pursuant to the principlesarticulated in Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880 (1968);

U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I,