People v. Brown

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Brown, 2013 IL App (1st) 083158

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DONNIE BROWN, Defendant-Appellant.

District & No. First District, Third Division

Docket No. 1-08-3158

Filed March 13, 2013

Rehearing denied June 28, 2013

Held On appeal from defendant’s conviction for burglary and sentence as a

(Note: This syllabus mandatory Class X offender, the trial court, on remand, did not err in

constitutes no part of granting defendant’s motion to quash his arrest and suppress evidence,

the opinion of the court and his conviction was reversed, since the officers who immediately took

but has been prepared defendant into custody and handcuffed him while he was exiting a

by the Reporter of building during the “pandemonium” of the police response to a reported

Decisions for the burglary exceeded the scope of a Terry stop by searching defendant,

convenience of the especially when a reasonably cautious person would not have believed

reader.)

defendant had committed a crime.

Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-25841; the

Review Hon. John J. Moran, Jr., and the Hon. Shelley Sutker-Dermer, Judges,

presiding.

Judgment Affirmed in part and reversed in part.

Counsel on Alan D. Goldberg, Michael J. Pelletier, Patricia Unsinn, and Sean

Appeal Southern, all of State Appellate Defender’s Office, of Chicago, for

appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Douglas P. Harvath, and Joseph M. Preiser, Assistant State’s Attorneys,

of counsel), for the People.

Panel JUSTICE PIERCE delivered the judgment of the court, with opinion.

Presiding Justice Neville and Justice Hyman concurred in the judgment

and opinion.

OPINION

¶1 Following a bench trial, defendant Donnie Brown was convicted of burglary and

sentenced as a mandatory Class X offender to six years’ imprisonment. On appeal, defendant

contended that his oral motion to quash arrest and suppress evidence, made at trial, should

have been granted. We agreed, reversing his conviction. People v. Brown, No. 1-08-3158

(May 26, 2010) (unpublished order under Supreme Court Rule 23). In denying the State

leave to appeal, our supreme court issued a supervisory order directing us to vacate our

judgment, remand for an evidentiary hearing on the motion to quash, and retain jurisdiction

here. People v. Brown, 238 Ill. 2d 656 (2010) (table). This court and the circuit court acted

as directed. On remand, the circuit court, after hearing additional testimony, granted

defendant’s motion to quash arrest and suppress evidence. Defendant also contends that the

evidence at trial was insufficient to convict him beyond a reasonable doubt. Lastly, he

contends that his term of mandatory supervised release (MSR) should be the two years for

his Class 2 felony offense rather than the three years for a Class X felony.

¶2 Defendant was charged with burglary in an indictment alleging that he and codefendants

Yarnell Brown and Christopher Evans entered a building owned by Daniel Diaz on

November 27, 2007, without authority and with the intent to commit theft therein. In a

separate bench trial, the court found defendant guilty, expressly finding the police testimony

credible.

¶3 Immediately thereafter, the court noted that, in an earlier sidebar, defendant made an oral

motion to quash based on the discrepancies in the police testimony regarding whether

defendant had anything in his hands when he exited the building. The court stated that

defendant would be allowed to argue the motion over the State’s sidebar objection.

Defendant then argued that there was no probable cause to arrest him when he was walking

out the back door empty-handed as his codefendants ran out the front door carrying stolen

goods. The State made no argument on the motion. The court denied the motion, finding that

the police had the requisite reasonable suspicion for “at least” a Terry stop of defendant

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based on him exiting the building during the “pandemonium” of the police response to the

reported burglary and codefendants’ flight in the middle of the night.

¶4 Defendant filed a posttrial motion arguing insufficiency of the evidence and that his oral

motion to quash should have been granted. The court denied the motion and proceeded to

sentencing. The court found defendant to be subject to Class X sentencing, based on his prior

felony convictions, and sentenced him to six years’ imprisonment.

¶5 In defendant’s initial appeal, we considered the motion to quash on its merits, though it

was an oral motion at trial rather than a written pretrial motion, because defendant made the

motion in light of the discrepancy between Officer Schwandt’s trial testimony and the police

report on the issue of whether defendant had anything in hand when he exited the building.

In our order of May 26, 2010, we held that the motion to quash should have been granted and

found that, without the now-suppressed evidence, the evidence against defendant was

insufficient so that retrial would be futile. Accordingly, we reversed his conviction and did

not address the two remaining issues he raised.

¶6 The supreme court later denied the State leave to appeal, in a supervisory order directing

this court to vacate its judgment of May 26, 2010, remand to the circuit court for an

evidentiary hearing on the motion to quash, and retain jurisdiction here. People v. Brown,

238 Ill. 2d 656 (2010) (table). We so ordered.

¶7 Upon remand, the trial court conducted an evidentiary hearing involving further

testimony regarding defendant’s arrest. The trial court considered the original trial testimony

along with the testimony presented at the evidentiary hearing and granted the motion to

quash arrest and suppress evidence. The State’s motion to reconsider was denied.

¶8 In our review of this case, we must first determine whether the trial court was correct in

its finding that there was an unlawful arrest under Terry and, if so, whether the record,

excluding evidence secured in violation of Terry, is sufficient to sustain defendant’s

conviction beyond a reasonable doubt. We have reviewed the trial and subsequent testimony

in reaching our decision.

¶9 At trial before Judge John Moran, Jr., police officer Rich Yi testified that, at about 1:30

a.m. on the day in question, he and another officer responded to a report of a burglary in

progress at the premises in question, a two-story apartment building with a store on the

ground floor. As Officer Yi and his partner arrived at the premises, Officer Yi saw two

men–codefendants–running out the front door carrying various metal tools. When the men

saw the officers, they dropped the tools and fled southbound. Officer Yi and his partner

pursued them and arrested codefendant Brown. Codefendant Evans was later arrested by

other officers. When Officer Yi returned to the premises, he found that codefendants had

dropped a circular saw, blades for such a saw, and a socket wrench. Officer Robert Schwandt

gave Officer Yi a doorknob “among other items,” which he brought with the tools to the

police station. There, Diaz viewed the recovered objects and Officer Yi then inventoried

them.

¶ 10 Officer Robert Schwandt testified that he and another officer also responded to the report

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of a burglary in progress, approaching the premises from the rear by the alley. Officer

Schwandt saw defendant exit the building by the rear door, with his hands in his pockets.

Officer Schwandt and his partner immediately placed defendant in custody, “because there

was [sic] many people coming in and out of that building from the call.” They handcuffed

him and told him that he was in custody but not under arrest. As Officer Schwandt searched

defendant, he received a radio report of Officer Yi’s pursuit of codefendants at the front of

the building. The search recovered “several” doorknobs and a television remote control from

one of defendant’s jacket pockets, which Officer Schwandt later gave to Officer Yi. When

Officer Schwandt went inside the building, he found that an interior door between the store

and residential portions of the building had been pried open. The storage areas in the store

corridor leading from that door were in disarray, with locks, doorknobs, and tools scattered

about. After defendant was arrested and informed of his Miranda rights, he told Officer

Schwandt that he had been visiting a friend in one of the apartments, though he could not

recall the friend’s name or which apartment he was in.

¶ 11 On cross-examination, Officer Schwandt explained that he did not prepare a report of the

incident but did review the report and inventory prepared by Officer Yi based on his (Officer

Schwandt’s) verbal report at the scene. The report indicated that defendant walked out the

rear door with a tool in hand, and Officer Schwandt acknowledged that he mentioned a tool

to Officer Yi at the time. The inventory did not include any doorknobs or a remote control.

¶ 12 Daniel Diaz testified that he owned the building in question. The store was not occupied

at the time, but Diaz kept tools, doorknobs, and similar items in the storage areas on the

corridor leading into the store. The door between the store and the apartments was locked

and intact on the day before the incident. After the incident, Diaz went to the police station

and identified a saw and doorknobs from the building. When he went to the building, Diaz

saw no damage to either the front or rear doors, while the interior door between the store and

residential areas was damaged as if pried open. The storage areas were “a mess.” Diaz had

not given defendant permission to be in his building on the day in question or any other. On

cross-examination, Diaz acknowledged that he had a residential tenant named Shawn Gray

and that his residential tenants could have visitors without Diaz’s permission or knowledge.

¶ 13 The court denied defendant’s motion for a directed finding.

¶ 14 Shawn Gray testified for the defense that he resided in the building in question on the day

in question, also testifying that he lived there for a “little over a year” beginning April 2006.

Defendant was a friend of Gray and knew Gray by name as well as nickname. On the night

in question, defendant visited him at his apartment from about 9 p.m. to about 1:30 a.m.,

when Gray saw defendant out by the back door. Gray immediately went back inside, seeing

nothing unusual as defendant left the building. He did hear a commotion–voices and running,

but not police sirens–a minute or two later. When Gray learned of defendant’s arrest the next

day, he did not contact the police.

¶ 15 In finding defendant guilty, the trial court expressly found the police testimony credible.

¶ 16 While this case was pending before this court and our supreme court, Judge Moran

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retired. On remand, the evidentiary hearing on defendant’s motion to quash was conducted

in November 2011 by Judge Sutker-Dermer.

¶ 17 At the evidentiary hearing, the parties stipulated that Officer Schwandt would testify in

the hearing as he had at trial. Additionally, Officer Schwandt testified that, at about 1:50 a.m.

on the day in question, he and another officer responded to a radio report of a burglary in

progress–without further description–at the premises in question. He heard other officers

respond to the same report, and he and his partner went to the rear of the building while other

officers went to the front. The building in question was large, with basement and second-

floor apartments and an unoccupied store on the ground floor. The alley behind the building

was dimly lit, with gangways between the buildings leading to the alley and many trash cans

and “places where people could be hiding.” Though he had not responded to any earlier calls

regarding these premises, he was somewhat familiar with the neighborhood and feared for

his safety under the circumstances. Officer Schwandt and his partner approached the rear exit

of the building and were about to open the door when defendant exited through it. Not

knowing who else may be exiting, or who else may be in the alley, Officer Schwandt

immediately handcuffed defendant and performed a pat-down. The pat-down found a “couple

[of] doorknobs” in his jacket pocket, which Officer Schwandt removed. When asked if he

feared that the doorknobs he felt were weapons, he replied “[t]hat’s always a possibility.”

¶ 18 On cross-examination, Officer Schwandt clarified that his partner was with him

throughout the confrontation with defendant. They learned that other suspects were being

pursued in the front of the building “right after we confronted” defendant, then they

handcuffed and searched him. The radio call reporting the fleeing suspects did not mention

weapons or shots being fired. Once defendant had been handcuffed, he could not reach the

items in his jacket pocket. Because defendant was stopped immediately after exiting, he had

no chance to flee.

¶ 19 Following arguments, the court found that “Officer Schwandt did not provide specific

and articulable facts [that] would warrant handcuffing the defendant and frisking and

searching him upon exiting the building.” The court noted that defendant was not running

and did not have anything in his hands, and that there was “no indication there was anyone

behind him.” The court concluded that the scope of a Terry stop was exceeded by the search

and granted the motion to quash arrest and suppress evidence. The State’s motion to

reconsider was denied.

¶ 20 This case is before us again as we retained jurisdiction pursuant to the supervisory order,

which also provided:

“Either party will then have the right to assert or renew allegations of error on the issue

in the appellate court, and the appellate court will address defendant’s additional claims

regarding the sufficiency of the evidence and sentencing order, if appropriate.” Brown,

238 Ill. 2d at 657.

The State supplemented the record with transcripts of the evidentiary hearing held on remand

and of the hearing on the State’s motion to reconsider the granting of the motion to quash.

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The State informed this court that it would not need to file a supplemental brief while briefly

arguing that, if we found that the motion to quash was properly granted, the proper

disposition would be a remand for retrial rather than outright reversal. In turn, defendant

informed this court that he would not file a supplemental brief because he prevailed

following the evidentiary hearing. We agree with the parties that further briefing is not

needed because the previously filed briefs clearly articulate each party’s position regarding

defendant’s motion to quash. Thus, we can resolve this appeal on the now-supplemented

record to determine whether the trial court correctly granted defendant’s motion to quash.

¶ 21 Police-citizen encounters are divided into three tiers: arrests, which must be supported

by probable cause; investigative or Terry stops, which must be supported by reasonable,

articulable suspicion of criminal activity; and encounters that involve no coercion or

detention and thus do not implicate constitutional rights. People v. Hopkins, 235 Ill. 2d 453,

471 (2009).

¶ 22 In a Terry stop, a police officer may briefly detain a person he reasonably suspects to be

recently or currently engaged in criminal activity, in order to verify or dispel those

suspicions. People v. Johnson, 408 Ill. App. 3d 107, 112 (2010). A Terry stop must not, in

scope or duration, exceed a brief investigatory detention. Id. at 113. While handcuffing a

person tends to indicate that his detention is an arrest rather than a Terry stop, handcuffing

is consistent with a Terry stop when and “only when it is a necessary restraint to effectuate

the stop and foster the safety of the officers.” Id. During a Terry stop, “if the officer

reasonably believes that the person detained is armed and dangerous, the officer may subject

the person to a limited search for weapons,” or frisk. Id. at 112.

¶ 23 Probable cause for an arrest exists if the facts and surrounding circumstances, considered

as a whole, are sufficient to justify a belief by a reasonably cautious person that the defendant

is or has been involved in a crime. Hopkins, 235 Ill. 2d at 472. Our analysis of probable cause

is based on common sense and concerns the probability of criminal activity rather than proof

beyond a reasonable doubt. Id. The State need not show that it was more likely true than false

that defendant was involved in criminal activity. Id. The difficulty of establishing probable

cause is reduced when the police know that a crime has been committed. Id. at 476. Upon

a person’s arrest, police may search his person and the area within his immediate control.

People v. Bridgewater, 235 Ill. 2d 85, 93 (2009). However, as the authority for searches

incident to arrest is derived from the interests of officer safety and evidence preservation

arising when officers make an arrest, those interests are not implicated if the suspect cannot

possibly reach into the area officers seek to search. Id.

¶ 24 When a trial court’s ruling on a motion to quash involves factual determinations or

credibility assessments, the findings will not be disturbed on review unless they are against

the manifest weight of the evidence. Hopkins, 235 Ill. 2d at 471. However, we review de

novo the trial court’s ultimate legal ruling to grant or deny the motion. Id.

¶ 25 Here, in reviewing the trial court’s postremand disposition of the motion to quash

following the evidentiary hearing, we first examine the propriety of taking defendant into

custody under the circumstances known to the police at the time. In the middle of the night,

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officers responded to a report of a burglary in progress at a particular building. That was

confirmed when some of the officers reported that they were pursuing two suspects who had

run out of that building by the front door with tools in their hands and fled. Officer Schwandt

and his partner saw defendant leave the building by the back door with his hands in his jacket

pockets and immediately took him into custody. With defendant leaving the scene of a crime

in the middle of the night shortly after suspects fled by another exit, the officers could

reasonably suspect defendant’s involvement in a recent crime and thus had grounds to

conduct a Terry stop.

¶ 26 However, by handcuffing defendant when there was no articulable basis for believing that

defendant was armed or dangerous–Officer Schwandt’s general fear for his safety because

he was in a dark alley with ample places for suspects to hide notwithstanding–Officer

Schwandt arrested him rather than merely conducting a Terry stop. That arrest was made

immediately after defendant passed through the doorway, before he showed signs of fleeing

as the suspects at the front door had. As no proceeds of the burglary, burglary tools, or other

contraband were visible, he was not doing anything illegal on its face. Though certainly not

conclusive, we find it telling regarding the amount of evidence that Officer Schwandt

believed he had to support his actions that he professed to be conducting a Terry stop rather

than an arrest. We find that a reasonably cautious person would not believe under these

circumstances that defendant had committed a crime, so that there was no probable cause to

arrest him when he was taken into custody.

¶ 27 Moreover, the officers exceeded the scope of a Terry stop by searching defendant. While

a protective pat-down for weapons may be performed in conjunction with a Terry stop, a

general search may not. Moreover, the immediate handcuffing of defendant upon being taken

into custody eliminated the need to frisk him for officer safety. We conclude that the search

was improper. The trial court did not err in granting defendant’s motion to quash arrest and

suppress evidence upon remand.

¶ 28 Because the motion to quash was granted, the doorknobs and remote control recovered

in the search have been suppressed. Without that concrete evidence that defendant committed

burglary, we find that it would be essentially impossible for the State to convict him of

burglary beyond a reasonable doubt. The State notes that, in People v. Lopez, 229 Ill. 2d 322,

367 (2008), our supreme court stated that a finding of trial error requires us to “consider

whether the evidence presented at trial, including the now-suppressed [evidence], was

sufficient to convict.” The Lopez court explained that the basis for this rule is that the

“double jeopardy clause prohibits retrial for the purpose of affording the prosecution another

opportunity to supply evidence which it failed to present in the first proceeding” but “does

not, however, preclude retrial where a conviction has been set aside because of an error in

the proceedings leading to the conviction.” Id. However, defendant has on appeal raised a

separate and distinct contention that the evidence against him was insufficient to convict.

Thus, we are faced with a broader question than whether double jeopardy bars remand for

a new trial. We find that the evidence presented at trial, minus the postarrest evidence

excluded by the trial court, is insufficient to convict, and thus we reverse defendant’s

conviction. Having done so, we need not address his contention concerning MSR.

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¶ 29 Accordingly, the judgment of the circuit court is affirmed in part and reversed in part.

¶ 30 Affirmed in part and reversed in part.

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