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                                                                                       SECOND DIVISION
                                                                                        AUGUST 8, 2000

1-99-1907

F.J. was charged by petition with unlawful possession of aweapon. He moved to quash arrest and suppress evidence, arguingthat the police stopped and searched him without a reasonablebasis for suspicion. After a hearing, the trial court denied themotion. The court then adjudicated F.J. delinquent and sentencedhim to 18 months' probation with various conditions.

F.J. now appeals, arguing that the trial court erred indenying his motion to quash arrest and suppress evidence.

We reverse and remand.

The only witness at the suppression hearing was OfficerFerguson, who made the arrest. Ferguson testified that around 10p.m. on December 18, 1998, he and his partner were on patrol inthe area of 1150 South Richmond. According to Officer Ferguson,this is a high crime area with much narcotics activity and therehad been a gang disturbance reported in the area a couple minutespreviously.

Ferguson saw F.J. standing at the entrance of an alley anddecided to conduct a field interview. As he got out of his car,Ferguson saw F.J. glance at him and put an object in his pocket. Ferguson did not know what the object was. Since he did not knowwhether the object was a weapon, Ferguson performed a pat-downsearch on F.J. without his consent. He felt a handgun in F.J.'spocket, removed it, and then placed F.J. in custody.

The court found Ferguson's testimony credible and denied themotion. The parties stipulated to Ferguson's testimony at trial,and the judge found F.J. delinquent. She sentenced him to 18months' probation with various conditions.

F.J. appeals, arguing that the trial court erred in rulingthat the stop and the search were proper.

Officer Ferguson stopped and frisked F.J. Whether the stopwas justified and whether the frisk was justified are twodistinct inquiries. People v. Galvin, 127 Ill. 2d 153, 163, 535N.E.2d 837, 841-42 (1989). The fact that a police officer hasreason to stop an individual does not necessarily mean that theadditional intrusion of a search for weapons will also bewarranted. People v. Pence, 225 Ill. App. 3d 1061, 1063, 588N.E.2d 1245, 1246 (1992). A police officer may conduct aninvestigatory stop when "the officer reasonably infers from thecircumstances that the person is committing, is about to commit,or has committed" a criminal offense. 725 ILCS 5/107-14 (West1996). Under Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889,906, 88 S. Ct. 1868, 1880 (1968), the officer must "be able topoint to specific and articulable facts which, taken togetherwith rational inferences from those facts, reasonably warrantthat intrusion." The Illinois Code of Criminal Procedure of1963(the Code) provides that a police officer may go on to make asearch when the officer "reasonably suspects that he or anotheris in danger of attack." 725 ILCS 5/108-1.01 (West 1996); Terry,392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883. We willfirst turn our attention to the question of the stop.

Traditionally, Illinois courts have held simply that a trialcourt's finding in a suppression hearing was subject to reversalonly for manifest error. Galvin, 127 Ill. 2d at 164, 535 N.E.2dat 842. More recently, however, the Illinois Supreme Court hasadopted a two-step approach under which the factual findings andcredibility determinations of the trial court are reviewed formanifest error and then the reviewing court applies a de novostandard to the legal determination of whether suppression of theevidence is warranted under those facts. People v. Mabry, 304Ill. App. 3d 61, 64, 710 N.E.2d 454, 456 (1999); People v.Gonzalez, 184 Ill. 2d 402, 411-12, 704 N.E.2d 375, 380 (1998). This is also the approach that has been adopted by the UnitedStates Supreme Court:

"We therefore hold that as a general matterdeterminations of reasonable suspicion and probablecause should be reviewed de novo on appeal. Havingsaid this, we hasten to point out that a reviewingcourt should take care both to review findings ofhistorical fact only for clear error and to give dueweight to inferences drawn from those facts by residentjudges and local law enforcement officers." Ornelas v.United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911,920, 116 S. Ct. 1657, 1663 (1996).

In particular, when neither the facts nor the credibility ofwitnesses is contested, Illinois case law is clear that a de novostandard of review is appropriate. People v. Carlson, 185 Ill. 2d546, 551, 708 N.E.2d 372, 374 (1999); People v. Wardlow, 183 Ill.2d 306, 309, 701 N.E.2d 484, 485 (1998), rev'd on other grounds,528 U.S. ___, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000). In thiscase neither the factual background nor the credibility of thewitness is at issue, since the parties have accepted OfficerFerguson's testimony. Therefore, our review proceeds de novo.

According to the Code, the burden of proof in a suppressionhearing is upon the movant. 725 ILCS 5/114-12(b) (West 1996). "Burden of proof" encompasses both the burden of going forwardwith evidence and the ultimate burden of persuasion of the trierof fact. People v. Ziltz, 98 Ill. 2d 38, 43-44, 455 N.E.2d 70, 72(1983); Board of Trade v. Dow Jones & Co., 108 Ill. App. 3d 681,686, 439 N.E.2d 526, 530 (1982). It is more precise to say thatthe Code, as it has been interpreted by the courts in light ofconstitutional requirements, places the burden of persuasion onthe movant in a suppression hearing. Once a defendant hasestablished that a warrantless search was conducted and he wasdoing nothing unusual at the time, the burden of going forwardwith the evidence to show the legal propriety for the searchshifts to the State. People v. LaGrone, 124 Ill. App. 3d 301,303, 464 N.E.2d 712, 714 (1984). This reading of the Codecomports with Terry, which requires the police officer "to pointto specific and articulable facts" justifying the stop. Terry,392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. 1880. The burdenof persuasion, however, does not shift. Ziltz, 98 Ill. 2d at 43-44, 455 N.E.2d at 72.

Here, F.J.'s counsel elicited sufficient evidence fromOfficer Ferguson to make out a prima facie case. The burden ofproduction then shifted to the prosecution to provide thespecific and articulable facts from which the officer reasonablyinferred that F.J. was involved in criminal activity. In ourview, the State did not carry this burden. The factors that theState offered as the basis for the stop are that it was night,there had been a "gang disturbance" nearby, it was a high crimearea, and F.J. put something in his pocket.

It was around 10 p.m. on a Friday night when OfficerFerguson stopped the respondent. It does not strike us that,even in a high crime area, there is anything unusual about peoplewalking around outside at 10 p.m. that, without more, wouldprovide a basis for a police stop.

Officer Ferguson testified that there had been a report of a"gang disturbance" on Roosevelt Road. Although the trial courtreferred to the incident as a "gang fight," Ferguson provided noinformation about the disturbance or its proximity to where F.J.was standing at the alley entrance.

The mere fact that a person is in a high crime area is notsufficient to justify the conclusion that he or she is involvedin criminal activity. Brown v. Texas, 443 U.S. 47, 52, 61 L. Ed.2d 357, 362-63, 99 S. Ct. 2637, 2641 (1979). It is, however, afactor that can be relevant to the inquiry of whether an officerhad reasonable suspicion to make a Terry stop. Illinois v.Wardlow, 528 U.S. ___, 145 L. Ed. 2d at 576, 120 S. Ct. at 676.The defendant in Wardlow was carrying an opaque bag while he wasin an area known for heavy narcotics trafficking. He fled whenhe saw a caravan of police vehicles converging on the area. Officers eventually cornered the defendant and then stopped himand conducted a protective search. They found a handgun in theopaque bag. The United States Supreme Court found that the stopwas justified under the circumstances. Wardlow, 528 U.S. at ___,145 L. Ed. 2d at 576, 120 S. Ct. at 676.

In our view, Wardlow is inapposite. In the instant caseF.J. was standing and not running, as in Wardlow. Significantly,the Court in Wardlow stated: "Headlong flight--wherever itoccurs--is the consummate act of evasion: it is not necessarilyindicative of wrongdoing, but it is certainly suggestive ofsuch." Wardlow, 528 U.S. at ___, 145 L. Ed. 2d at 576, 120 S.Ct. at 676. In the case sub judice, Officer Ferguson testifiedthat F.J. put something in his pocket as he approached. However,he also testified that he had no idea what the object was. Hedid not testify that it looked like a handgun or contraband oranything that would naturally arouse suspicion. Puttingsomething in one's pocket is subject to many plausible innocentexplanations. People v. Anderson, 304 Ill. App. 3d 454, 711N.E.2d 24 (1999), is an instructive case. In Anderson, the courtheld that the fact that a person put something in his pocket wasnot sufficient to justify a search under Terry.

"We do not believe that the mere fact that a person putsomething into his pocket would cause a reasonableperson to fear for his safety. As the trial courtobserved, a person standing on the street may reachinto his pocket to put away keys, cigarettes,sunglasses, or any number of innocuous objects."Anderson, 304 Ill. App. 3d at 463, 711 N.E.2d at 30.

Similarly, here, the fact that someone puts something in his orher pocket does not justify the inference that the person isinvolved in criminal activity.

The State urges that we should trust the reasonableness ofOfficer Ferguson's actions because "trained police officers maybe able to perceive and articulate meaning in conduct which wouldbe wholly innocent to the untrained observer." People v.DeHoyos, 172 Ill. App. 3d 1087, 1092, 527 N.E.2d 319, 323 (1988). It is true that we should conduct our review giving due weight toinferences drawn by local law enforcement officers. Ornelas, 517U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. But wecannot simply assume that the seemingly innocuous behavior ofF.J. provided Officer Ferguson with an objectively reasonablebasis to make a stop. "[A] standard does not become subjectiverather than objective merely because it takes into account thespecial skills and knowledge of the actor." 4 W. LaFave, Searchand Seizure