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No. 3--03--0003

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE BARRY delivered the Opinion of the court.

The defendant, Donelmo Goodum, was charged with Class 4felony retail theft (720 ILCS 5/16A--3(a), 16A--10(2) (West2002)). His motion to suppress the evidence was denied. Following a stipulated bench trial, the court found the defendantguilty and sentenced him to 60 months of T.A.S.C. probation. Onappeal, the defendant argues that the court erred by denying hismotion to suppress. We affirm.

BACKGROUND

In its indictment, the State charged the defendant withhaving committed retail theft on March 14, 2002. On June 11,2002, the defendant filed a motion to quash the arrest andsuppress the evidence.

At the hearing on the motion to suppress, Joliet policeofficer Tizoc Landeros testified that during the early morninghours of March 14, 2002, he and his partner were on stationarypatrol in their squad car in the parking lot of a Citgo stationin Joliet. At approximately 3:20 a.m., the officers observed aMazda automobile with two occupants pull into the gas pump areaof the station. Landeros could not recall if the defendant wasthe driver or the passenger of the car. The defendant, however,testified that he was the passenger in the car. The defendantand Jessie Shaw exited the car and walked into the station. Atthat time, the officers did not know the identities of these twomen.

After the car parked at the station, Landeros asked theradio dispatcher to run a background check on the car's licenseplate number. The dispatcher advised the officers that an arrestwarrant was outstanding for the owner of the car, Larry Shaw. Later, the officers learned that Larry Shaw is Jessie Shaw'sbrother. At that time, the dispatcher neither advised theofficers about the nature of the arrest warrant nor gave theofficers a description of Larry Shaw.

As the defendant and Jessie Shaw returned to the car, theofficers drove their squad car into the gas pump area of thestation and stopped with the squad car facing the front of theMazda. The following exchange took place between the prosecutorand Landeros concerning his encounter with the defendant:

"Q: Which side of the car did you approach Mr.Goodum on?

A: I was sitting I believe--I don't remember whereI was, if I was driving or I was the passenger of thesquad car, but when we exit them they were both infront of the Mazda. We approached the front of theMazda with our squad cars [sic], so they were almostfacing each other to an angle, angled off a littlebit."

Landeros then approached the defendant and the other officerapproached Jessie in the space between the squad car and theMazda.

Landeros asked the defendant for his name, which thedefendant told the officer. The defendant also correctly spelledhis name for Landeros. When the officer asked the defendant foridentification, the defendant said that he did not haveidentification. The defendant also told Landeros his birth date. The officer then called the dispatcher with the defendant's nameand date of birth. The dispatcher stated that there were nowarrants outstanding for the person with that name and date ofbirth.

Landeros said he then asked the dispatcher for a descriptionof Larry Shaw. The officer said that the description thedispatcher gave him closely matched the defendant's height,weight, and age. At that point, Landeros believed that thedefendant was Larry Shaw and was lying about his identity. Landeros' partner received identification from the other recentoccupant of the car indicating that he was Jessie Shaw.

Landeros noticed that the defendant's "coat was a littlebulky" and that there were "bulges in his coat." Landeros alsoobserved that the defendant was a "little nervous."

The officer asked the defendant "what was in his coat." Landeros then testified as follows:

"He said a sandwich which is a little weird just tohave a sandwich, bulky sandwich in your coat. However,we still believed that he was possibly lying to usabout his name due to the warrant, so I patted him downfor weapons also and possibly any identification oranything like that."

Defense counsel asked Landeros, "Did you fear for yoursafety *** with the defendant?" Landeros answered, "It made mesuspicious of the way he was acting so I didn't--we didn't knowwhat we had at the time. He--yeah, maybe, yes, a little bit." The following exchange also took place between the defendant'sattorney and Landeros:

"Q: And based upon your training and experiencewere you in fear of your safety at that point believingthat this may in fact be Larry Shaw?

A: Yes, just because you don't know how somebodyis going to react when they find out that they're goingto be apprehended by the police *** on a warrant or ***be arrested."

The following exchange took place between the prosecutor andLanderos:

"Q: How did you proceed to do the pat search?

A: With my hands started around the waist area,the pants. Normally that's where most people haveweapons. After that I felt *** various bulky objectsin the coat, went to the legs, over the pants of thepockets with an open hand.

* * *

I didn't feel that the mushy items in the coatright away would hurt me or my partner *** so just keptmoving on patting over the pockets, the rear pockets,the legs, up high in the coat toward the chest area,armpits."

While Landeros was patting one of the defendant's rear pantspockets, the officer felt what he thought was a pipe used forsmoking crack cocaine. The officer testified that he saw whatappeared to be the end of a crack pipe sticking out of thedefendant's pocket. Landeros retrieved the crack pipe from thedefendant's pocket. The officer stated that, "after finding thepipe we knew we could charge him with that so we were detaininghim for that."

Landeros then searched inside the defendant's coat. Landeros said, "I [did not] want to have him start reaching inhis coat, pull out any surprises, so you know, I unzipped hiscoat and retrieved various food items from his coat."

At the conclusion of the suppression hearing, the judgedenied the motion to suppress without making any factualfindings. The matter proceeded to a stipulated bench trial inwhich the court found the defendant guilty of retail theft forhaving stolen the food items from the gas station. The courtimposed sentence and the defendant appealed.

ANALYSIS

The defendant contends that the trial court erred by denyinghis motion to suppress.

Because a trial court's ultimate decision concerning amotion to suppress is a question of law, our review is de novo. People v. Simac, 321 Ill. App. 3d 1001, 748 N.E.2d 798 (2001).

Under the fourth and fourteenth amendments to theConstitution of the United States, a person has a right to besecure against unreasonable searches and seizures. U.S. Const.,amends. IV, XIV. In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,88 S. Ct. 1868 (1968), the United States Supreme Court announcedan exception to the general rule that warrantless searches areunreasonable. Terry permits a police officer to temporarilydetain an individual when the officer's observations create areasonable, articulable suspicion that the individual hascommitted or is about to commit a crime. Additionally, anofficer may pat down an individual during a Terry stop, but onlyif the officer reasonably believes the individual is armed anddangerous. Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868;People v. DeLuna, 334 Ill. App. 3d 1, 777 N.E.2d 581 (2002).

A single bulge in a defendant's clothing, by itself, doesnot justify a Terry stop and pat-down search. See W.R. LaFave,Search and Seizure