People v. McMichaels

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Appellate Court Date: 2021.04.21

11:45:20 -05'00'

People v. McMichaels, 2019 IL App (1st) 163053

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

Caption DeANDRE McMICHAELS, Defendant-Appellant.

District & No. First District, Second Division

No. 1-16-3053

Filed October 29, 2019

Rehearing denied May 5, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 16-CR-8706; the

Review Hon. Vincent M. Gaughan, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Lauren A. Bauser, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Marci Jacobs, and Delicia D. Zayas, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE PUCINSKI delivered the judgment of the court, with

opinion.

Justices Lavin and Coghlan concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant DeAndre McMichaels was convicted of one count of

being an armed habitual criminal and was sentenced to eight years’ imprisonment. On appeal,

he argues that the trial court erred in denying his motion to quash arrest and suppress evidence

where police officers conducted an unreasonable stop and search in violation of Terry v. Ohio,

392 U.S. 1 (1968), and lacked probable cause to arrest him. We affirm.

¶2 I. BACKGROUND

¶3 Defendant was charged by indictment with one count of being an armed habitual criminal,

two counts of unlawful possession of a weapon by a felon, and four counts of aggravated

unlawful use of a weapon, arising from an incident in Chicago on May 24, 2016. The State

proceeded on one count of the armed habitual criminal offense (720 ILCS 5/24-1.7(a) (West

2016)) and one count of unlawful possession of a weapon by a felon (id. § 24-1.1(a)).

Defendant filed a motion to quash arrest and suppress evidence, which was heard concurrently

with the trial.

¶4 Chicago police officer Christopher Cannata testified that on May 24, 2016, at

approximately 3:25 p.m., he was on patrol with Officers Patrick Martino and Pavone 1 in an

unmarked vehicle near the 4900 block of West Ferdinand Street. The officers received a

dispatch regarding “a male black with a black T-shirt, yellow shorts and dreadlocks in

possession of a black handgun” near Ferdinand Street and Lamont Avenue. The description

matched a person the officers had seen there earlier in the day, whom Cannata identified in

court as defendant. When the officers returned to the area, Cannata observed defendant wearing

the same clothes and standing with three other men. The officers parked 10 to 15 feet away,

exited the vehicle, announced their office, and “asked to see all the individuals’s [sic] hands.”

¶5 According to Cannata, the three men around defendant showed their hands, but defendant

“immediately placed one hand into his right short pockets [sic] and then began to turn away

from us.” The officers approached defendant and again asked to see his hands, but he “did not

comply.” Seconds later, Martino grabbed defendant’s shoulder or upper arm. Cannata observed

defendant’s hand “break free from his pocket” and noticed “the butt and re-slide of a semi-

automatic handgun” protruding from the right pocket of his shorts. Cannata seized the firearm,

which was loaded with seven live rounds, and defendant was handcuffed. As Cannata and

Martino walked defendant to their vehicle, “he blurted out that he just had the gun for

protection because he had been shot.”

¶6 On cross-examination, Cannata stated that he saw defendant at Lamont Avenue and

Ferdinand Street in a large group of people “less than an hour” before the dispatch but had no

contact with him. At that time, defendant was not holding a weapon, and only his clothing

caught Cannata’s attention. Cannata never spoke with the person who called the police to report

an individual with a firearm and did not know the person’s identity. Cannata added that, when

the officers exited their vehicle and approached defendant, he turned away but did not make

other movements. When Martino grabbed defendant, his hand was in his pocket. Cannata

1

Officer Pavone’s first name does not appear in the transcript.

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explained that Martino made physical contact with defendant “[f]or our safety, mainly based

on his lack of listening to our orders.”

¶7 Martino testified that he advised defendant of his Miranda rights at the police station. See

Miranda v. Arizona, 384 U.S. 436 (1966). Defendant stated that he understood his rights and

said “the only reason why he had a handgun on his person was for his protection because he

ha[d] been shot earlier on that block.” On cross-examination, Martino did not recall whether

defendant made any statements at the location of his arrest.

¶8 The State entered a stipulation between the parties that defendant had two qualifying felony

convictions for purposes of the armed habitual criminal statute. Afterwards, the State rested,

and defendant moved for a directed finding, which the trial court denied. The defense rested

without presenting evidence.

¶9 In support of defendant’s motion to quash arrest and suppress evidence, defense counsel

argued that the call to police, reporting someone with a firearm, was unreliable because nothing

established the caller’s identity, motive, or basis for knowledge. Counsel posited that the fact

that officers noticed defendant wearing the same clothes as the person whom the caller

described was insufficient corroboration for a search and seizure and that no probable cause

existed because the officers did not observe a firearm until they searched defendant. The State,

in response, submitted that “a concerned citizen is ordinarily considered more credible” than a

paid informant. Additionally, the State maintained that the officers conducted a valid Terry

stop where they were told a person resembling defendant was carrying a firearm and defendant

put his hand in his pocket and turned away when the officers approached him and asked to see

his hands.

¶ 10 The trial court denied defendant’s motion and found him guilty of being an armed habitual

criminal and unlawful possession of a weapon by a felon. According to the court, the fact the

officers had seen defendant prior to the dispatch “just goes to location” and did not prove “any

type of *** criminal activity.” The court explained, however, that defendant’s conduct in

putting his hand in his pocket and turning away when the officers asked to see his hands,

coupled with the officers’ knowledge that someone resembling defendant reportedly possessed

a firearm, created an “articulable suspicion about officer safety” and, therefore, the Terry stop

was justified. The court did not comment whether probable cause existed for defendant’s arrest.

¶ 11 Defendant filed a motion for new trial, arguing, in relevant part, that the trial court erred in

denying his motion to suppress. The court denied the motion. Following a hearing, the court

merged the counts and sentenced defendant to eight years’ imprisonment for being an armed

habitual criminal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends that the trial court erred in denying his motion to suppress

because the officers lacked a reasonable, articulable suspicion to conduct the Terry stop that

produced the firearm and his statements. Relying on People v. Aguilar, 2013 IL 112116,

defendant submits that “mere possession of a firearm outside the home, without more, is not a

crime” and, therefore, the call about a person with a firearm did not provide the officers with

a reasonable suspicion of criminal activity to justify ordering him to show his hands and

restraining him when he refused, particularly where he was not engaged in suspicious conduct

when the officers observed him. Even if his conduct justified a protective pat down, defendant

maintains the recovery of the firearm did not create probable cause for his arrest because, when

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the officers arrested him, they did not know whether he lacked a concealed carry license or had

prior felony convictions.

¶ 14 In the trial court, the defendant has the burden of proof on a motion to quash arrest and

suppress evidence. People v. Cregan, 2014 IL 113600, ¶ 23. “If the defendant makes a

prima facie showing that the evidence was obtained in an illegal search or seizure, the burden

shifts to the State to provide evidence to counter the defendant’s prima facie case.” Id.

However, “[t]he ultimate burden of proof remains with the defendant.” Id. On review, the trial

court’s factual findings will be reversed only when they are against the manifest weight of the

evidence (People v. Manzo, 2018 IL 122761, ¶ 25), but the “legal ruling on whether the

evidence should be suppressed is reviewed de novo” (People v. Bonilla, 2018 IL 122484, ¶ 8).

¶ 15 The fourth amendment to the United States Constitution and the Illinois Constitution of

1970 both “guarantee the right of individuals to be free from unreasonable searches and

seizures.” People v. Colyar, 2013 IL 111835, ¶ 31; see U.S. Const., amends. IV, XIV; Ill.

Const. 1970, art. I, § 6. Typically, seizures require a warrant supported by probable cause.

People v. Johnson, 237 Ill. 2d 81, 89 (2010). Pursuant to Terry, however, “a police officer may

conduct a brief, investigatory stop of a person where the officer reasonably believes that the

person has committed, or is about to, commit a crime.” People v. Close, 238 Ill. 2d 497, 505

(2010) (citing Terry, 392 U.S. at 22). Further, “when an officer is justified in believing that the

individual whose suspicious behavior he is investigating at close range is armed and presently

dangerous to the officer or others, the officer may conduct a pat-down search to determine

whether the person is in fact carrying a weapon.” People v. Sorenson, 196 Ill. 2d 425, 432

(2001) (citing Terry, 392 U.S. at 24). “Whether an investigatory stop is valid is a separate

question from whether a search for weapons is valid.” People v. Thomas, 198 Ill. 2d 103, 109

(2001).

¶ 16 Because the fourth amendment is not implicated until a seizure occurs, our first inquiry is

to determine when defendant was seized. People v. Nitz, 371 Ill. App. 3d 747, 750 (2007).

Under the fourth amendment, “an individual is seized when an officer by means of physical

force or show of authority, has in some way restrained the liberty of a citizen.” (Internal

quotation marks omitted.) People v. Harris, 228 Ill. 2d 222, 246 (2008). Formulated another

way, “a person has been seized when, considering the totality of the circumstances, a

reasonable person would believe he was not free to leave.” People v. Oliver, 236 Ill. 2d 448,

456 (2010) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In considering

whether a seizure occurred, courts consider “(1) the threatening presence of several officers;

(2) the display of a weapon by an officer; (3) some physical touching of the person; or (4) using

language or tone of voice compelling the individual to comply with the officer’s requests.” Id.

(citing Mendenhall, 446 U.S. at 554).

¶ 17 The Mendenhall test “states a necessary, but not a sufficient, condition for seizure.”

Thomas, 198 Ill. 2d at 111 (citing California v. Hodari D., 499 U.S. 621, 628 (1991)). This is

because, “[w]hile an officer’s show of authority may amount to a seizure [citation], *** a

defendant is not seized when he ignores a show of authority.” People v. Billingslea, 292 Ill.

App. 3d 1026, 1030 (1997). Thus, in Thomas, our supreme court explained:

“ ‘The police may well convey a reasonable feeling of restraint, but that message does

not amount to a seizure within the meaning of the fourth amendment until there is

submission to it. A person must submit to a show of authority before that show of

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authority can constitute a seizure.’ ” (Emphasis omitted.) Thomas, 198 Ill. 2d at 112

(quoting People v. Thomas, 315 Ill. App. 3d 849, 857 (2000)).

¶ 18 Here, defendant argues he was seized by the officers “immediately upon their arrival” at

Ferdinand Street and Lamont Avenue, when they exited their vehicle and ordered him and the

other men to “put their hands up.” According to defendant, the officers’ number and language

showed compliance was mandatory, as further evidenced by the fact the other men displayed

their hands and, when defendant did not, the officers grabbed him. We disagree.

¶ 19 At trial, Cannata testified that the officers parked 10 to 15 feet from defendant and the other

men. The officers exited their vehicle and announced their office, but no evidence showed they

displayed weapons or touched any of the men. When the officers “asked to see” the men’s

hands, three of them complied, but defendant “immediately” placed one hand in his pocket and

“began to turn away.” The officers approached him and asked to see his hands a second time,

but defendant again “did not comply.” At that point, Martino grabbed defendant’s shoulder or

arm.

¶ 20 Between the moment the officers arrived and the time Martino grabbed defendant,

defendant refused two requests to display his hands and, instead, placed his hand in his pocket

and turned away. Under these circumstances, defendant did not submit to the officers’ authority

upon their arrival. See Billingslea, 292 Ill. App. 3d at 1030 (finding the defendant “did not

submit to the assertion of authority” when an officer “ordered him to keep his hands where he

could see them” but defendant “turned away [and] reached for an object in his waistband”).

Consequently, defendant was not seized until Martino grabbed him. See Harris, 228 Ill. 2d at

246; People v. Evans, 2017 IL App (4th) 140672, ¶ 31 (the defendant “resisted [an officer’s]

authority by continuing to place his hands back into his pockets” and “was not seized until [the

officer] frisked him”).

¶ 21 Having determined when defendant was seized, our next inquiry is whether the officers

were justified in conducting a Terry stop at that moment.

¶ 22 Terry permits an officer to conduct a brief, investigatory stop of a person whom the officer

reasonably believes “has committed, or is about to, commit a crime.” Close, 238 Ill. 2d at 505

(citing Terry, 392 U.S. at 22). To justify a Terry stop, officers must be able to point to specific

and articulable facts that, considered with the rational inferences therefrom, make the intrusion

reasonable. People v. Timmsen, 2016 IL 118181, ¶ 9. “The determination of reasonable

suspicion must be based on commonsense judgments and inferences about human behavior,

and due weight must be given to the reasonable inferences the officer is entitled to draw from

the facts in light of his experience.” People v. Thomas, 2019 IL App (1st) 170474, ¶ 19. While

reasonable suspicion is a less stringent standard than probable cause, an officer’s hunch or

unparticularized suspicion is insufficient. People v. Williams, 2016 IL App (1st) 132615, ¶ 44.

Ultimately, “[i]n determining whether the officer had a reasonable suspicion, a court considers

the totality of the circumstances known to the officer” (In re Edgar C., 2014 IL App (1st)

141703, ¶ 97) and views those facts “from the perspective of a reasonable officer at the time

of the stop” (People v. Sanders, 2013 IL App (1st) 102696, ¶ 14).

¶ 23 Based on the totality of the circumstances, we find the Terry stop was valid. When Martino

grabbed defendant, the officers had been told that a person matching defendant’s description

was reportedly in possession of a firearm. Seconds earlier, defendant had twice refused the

officers’ requests to show his hands and instead put his hand in his pocket and turned away.

Defendant’s hand was still in his pocket when Martino grabbed him, and Cannata testified that

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defendant’s conduct posed a safety concern. Thus, although “an individual’s refusal to

cooperate, without more, does not amount to reasonable suspicion” (Timmsen, 2016 IL

118181, ¶ 10), the officers’ decision to detain defendant resulted from more than just his

noncompliance with their request to show his hands and was reasonable given the facts known

to the officers at the relevant time.

¶ 24 In reaching this conclusion, we observe that the reliability of the tip that resulted in the

officers’ dispatch is not dispositive of the validity of the Terry stop. Defendant was not seized

when the officers arrived on the scene in response to the tip but, rather, was seized when

Martino grabbed him. While only a few seconds passed between when the officers arrived and

the moment the seizure occurred, in that time, the officers became aware of other

circumstances, including defendant’s furtive conduct in response to their request to see his

hands. Thus, the tip was just one of several factors that, viewed from the perspective of a

reasonable officer, made the Terry stop valid. See Sanders, 2013 IL App (1st) 102696, ¶ 14.

¶ 25 Although the validity of an investigatory stop is typically a different issue from the validity

of a search for weapons (Thomas, 198 Ill. 2d at 109), in this case, Cannata observed the firearm

during the Terry stop. Cannata testified that, after Martino grabbed defendant, defendant’s

hand “br[oke] free from his pocket” and “the butt and re-slide of a semi-automatic handgun”

protruded from the right pocket of his shorts. Cannata seized the firearm, and defendant was

handcuffed. When Cannata noticed the firearm in plain sight, he knew that defendant was

armed and possibly dangerous and, therefore, could clearly “point to specific, articulable facts

which *** reasonably warrant[ed] the intrusion” involved in seizing the firearm. People v.

Flowers, 179 Ill. 2d 257, 264 (1997). Consequently, the officers legally recovered the firearm,

and defendant’s challenge to the Terry stop is without merit.

¶ 26 Defendant contends, however, that the recovery of the firearm did not create probable cause

for his arrest because “mere possession of a firearm outside the home, without more, is not a

crime” and, at the time of his arrest, the officers did not know whether he lacked a concealed

carry license or had felony convictions.

¶ 27 An arrest executed without a warrant is valid only when it is supported by probable cause.

People v. Grant, 2013 IL 112734, ¶ 11. “Probable cause to arrest exists when the facts known

to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to

believe that the arrestee has committed a crime.” People v. Wear, 229 Ill. 2d 545, 563-64

(2008). The existence of probable cause depends on “the totality of the circumstances at the

time of the arrest” and “is governed by commonsense considerations.” Grant, 2013 IL 112734,

¶ 11. “[T]he calculation concerns the probability of criminal activity, rather than proof beyond

a reasonable doubt.” Id.

¶ 28 In Aguilar, our supreme court held that a portion of the aggravated unlawful use of a

weapon statute—which “categorically prohibit[ed] the possession and use of an operable

firearm for self-defense outside the home”—violated the second amendment of the United

States Constitution. Aguilar, 2013 IL 112116, ¶ 21. The supreme court explained that “the

second amendment right to keep and bear arms extends beyond the home” but is still subject

to meaningful regulation. Id. ¶¶ 20-21. In Illinois, those regulations include laws such as the

unlawful possession of a weapon by a felon statute (720 ILCS 5/24-1.1(a) (West 2016)), which

prohibits felons from possessing firearms. Other regulations include the requirement that, in

order to possess a handgun, a person must carry a Firearm Owners Identification (FOID) card

issued to him or her by the state police. 430 ILCS 65/2 (West 2016). To carry a concealed

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firearm, a FOID cardholder also must possess a license under the Firearm Concealed Carry

Act (430 ILCS 66/10, 25 (West 2016)).

¶ 29 The Firearm Concealed Carry Act further provides that, if an officer initiates an

investigative stop, upon the request of the officer, a licensee must disclose that he or she

possesses a concealed firearm, present his or her license, and identify the firearm’s location.

Id. § 10(h). Pursuant to section 108-1.01 of the Code of Criminal Procedure of 1963 (Code)

(725 ILCS 5/108-1.01 (West 2016)), when an officer has stopped a person for temporary

questioning and “reasonably suspects that he or another is in danger of attack, he may search

the person for weapons” and may take the weapon “until the completion of the questioning, at

which time he shall either return the weapon, if lawfully possessed, or arrest the person so

questioned.”

¶ 30 Defendant was arrested on May 24, 2016, after Aguilar was decided. On that date, the

categorical prohibition on the possession of an operable firearm outside the home was

unconstitutional. As the officers did not inquire whether defendant had a concealed carry

license or felony convictions before arresting him, defendant maintains he was arrested without

probable cause. Again, we disagree.

¶ 31 Our supreme court has explained that “the existence of probable cause depends upon the

totality of the circumstances at the time of the arrest.” Wear, 229 Ill. 2d at 564. These

circumstances include “the factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.” (Internal quotation marks omitted.) Id.

“The standard is the probability of criminal activity, not proof beyond a reasonable doubt or

even that it be more likely than not.” People v. Gocmen, 2018 IL 122388, ¶ 19.

¶ 32 Applying these principles here, the totality of the circumstances when the officers arrested

defendant suggested criminal activity. To briefly restate the facts, the officers responded to a

report that a person matching defendant’s three-point description possessed a firearm. The

officers asked defendant and three other men to show their hands. The three other men

complied, but defendant twice ignored the officers’ requests and, instead, placed his hand in

his pocket and turned away. At that point, the officers conducted a Terry stop, recovered a

loaded firearm from defendant’s pocket, and handcuffed him. While the officers did not inquire

about his criminal history or firearm licenses at that moment, “the existence of a possible

innocent explanation, like defendant’s possession of the required gun licenses, [does] not

necessarily negate probable cause.” Thomas, 2019 IL App (1st) 170474, ¶ 39. Instead,

defendant’s repeated noncompliance with the officers’ requests, the fact he turned away and

kept his hand in his pocket, and the discovery of the firearm in that pocket are all practical

considerations justifying probable cause that he illegally possessed the firearm. See People v.

Smith, 2015 IL App (1st) 131307, ¶ 29 (“furtive movements may be considered justification

for performing a warrantless search when coupled with other circumstances tending to show

probable cause,” even though “looks, gestures, and movements taken alone are insufficient”

(internal quotation marks omitted)).

¶ 33 Defendant has cited Thomas, 2019 IL App (1st) 170474, as authority for his position that

his arrest should have been quashed. In defendant’s motion to cite Thomas as additional

authority, he asserts that “Thomas makes clear that it is not reasonable to presume that, simply

because a handgun may be visible in public, it was necessarily being carried in violation of the

law” and that defendant’s “possession of a handgun did not give the officers an objectively

reasonable basis to believe that he was violating the law.” Defendant claims that his arrest was

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not justified because, upon discovering that he was in possession of the handgun, the police

immediately arrested him “without any inquiry into whether his possession of the handgun was

lawful.”

¶ 34 In Thomas, this court stated that, “under the current legal landscape, police cannot simply

assume a person who possesses a firearm outside the home is involved in criminal activity.”

Id. ¶ 40. We stated that the police “cannot use a firearm in partial view, such as a semi-exposed

gun protruding from the pant pocket of a person on a public street, alone as probable cause to

arrest an individual for illegal possession without first identifying whether the individual has

the necessary licenses.” Id. We cautioned “against ‘an arrest first, determine licensure later’

method of police patrol.” (Emphasis added.) Id. However, despite this admonition, we

nevertheless found that the totality of the circumstances—such as the defendant’s flight, his

actions of handing his gun to another person in a common area of an apartment upon seeing

the police, and then fleeing the scene—gave the police probable cause to believe that the

defendant illegally possessed the gun. Id. ¶ 38. Likewise, here, as described above, even though

the officers did not inquire as to whether defendant lawfully possessed the gun, including

whether he had a valid concealed carry license or felony convictions, before they arrested him,

the police had probable cause to arrest defendant based on the totality of the circumstances.

¶ 35 Further, we note that our admonition in Thomas against “ ‘arrest first, determine licensure

later,’ ” must be balanced against officer safety. See id. ¶ 40.

¶ 36 Public policy demands that police must be safe in the performance of their duties. Officers

here were acting on a citizen tip that there was a man (1) with dreadlocks, (2) in yellow shorts,

(3) in a black T-shirt, and (4) in possession of a gun at a specific location. When the police got

to that location and saw the man matching that particularized description and asked him and

his friends to stop and show their hands, he declined the officers’ request, placed one hand in

his pocket, and turned away from them. He then refused to comply with the officers’ second

request to see his hands. Based on information that defendant had a gun and the combination

of factors in this case, as previously described, the officers were justified in conducting a Terry

stop when they stepped behind him and grabbed his shoulder. It was at this time, during the

Terry stop, that they discovered he was in possession of a handgun.

¶ 37 Under section 108-1.01 of the Code, when an officer has stopped a person under the

“Search During Temporary Questioning” provision in the Code and “reasonably suspects that

he or another is in danger of attack, he may search the person for weapons” and take the weapon

“until the completion of the questioning, at which time he shall either return the weapon, if

lawfully possessed, or arrest the person” that was questioned. 725 ILCS 5/108-1.01 (West

2016). Further, under the Firearm Concealed Carry Act, “upon the request of the officer the

licensee *** shall disclose to the officer that he or she is in possession of a concealed firearm

under this Act.” 430 ILCS 66/10(h) (West 2016).

¶ 38 We recognize that the officers did not question defendant under section 108-1.01 of the

Code or the Firearm Concealed Carry Act to determine whether he had a valid concealed carry

license or felony convictions. However, defendant also did not volunteer information to the

officers. A reasonable person who was not committing a crime (i.e., who had the valid licenses)

would be expected to tell the officers he was licensed to have and carry a gun.

¶ 39 When the officers initially asked defendant to see his hands, he could have notified them

that he lawfully had a gun. During the Terry stop, when the officers saw the gun protruding

from defendant’s pocket, defendant had an opportunity to offer the information that he was

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properly licensed or otherwise in lawful possession. He did not. When the officers took the

gun, defendant could have offered up license information, but once more, he did not. Defendant

had multiple opportunities to protect his legitimate interests and volunteer the information that

he was licensed. That would have been the end of it. In the absence of such information and in

combination with all other factors previously described, even though the officers did not

inquire about whether defendant had a valid license, the officers were fully justified in

detaining and arresting defendant before they could confirm his licensure and the lawfulness

of the possession of the gun without his help.

¶ 40 After oral arguments, we granted defendant leave to additionally cite People v. Horton,

2019 IL App (1st) 142019-B, which, according to defendant, supports his argument that his

mere “voluntary decision not to engage with the police” could not support a finding of

reasonable suspicion. However, in Horton, the defendant filed a motion to quash arrest and

suppress evidence that solely challenged whether the officers had probable cause to arrest him.

Id. ¶ 13. As this court observed, the evidence in Horton also showed that only an arrest, and

not a stop, occurred. Id. ¶ 65. Specifically, the evidence showed that a police officer saw the

defendant merely stand outside a house with a “ ‘metallic object in his waistband,’ ” turn, and

“rush[ ]” inside the house. Id. ¶¶ 14-15. The officer entered the house, saw the defendant

“crouched next to a bed” in a bedroom, “detained” the defendant, and recovered a handgun

from under the mattress. Id. ¶ 16. The circuit court denied the defendant’s motion to quash and

suppress. Id. ¶ 22. We reversed the circuit court’s decision, however, and found that the

defendant’s mere flight from the police officers did not give rise to probable cause to arrest.

Id. ¶¶ 65-68, 76, 87.

¶ 41 Here, unlike in Horton, the officers initially conducted a Terry stop, which uncovered

evidence supporting probable cause to arrest. Accordingly, the officers’ initial seizure of

defendant only needed to be justified by circumstances meeting the “lower standard of

reasonable suspicion as opposed to the more exacting standard of probable cause.” Id. ¶ 65.

Additionally, unlike in Horton, there were circumstances other than defendant’s flight to

support defendant’s arrest. Specifically, the officers received a report that a person matching

defendant’s description possessed a firearm and asked defendant and three other men to show

their hands. Defendant repeatedly refused to comply, placed his hand in his pocket, and turned

away. The officers were then justified to perform a Terry stop, and upon recovering a loaded

firearm from defendant, they were justified in arresting him. The circumstances of defendant’s

stop and eventual arrest were not limited to defendant’s mere refusal to cooperate with the

officers, as defendant suggests, and so Horton does not apply.

¶ 42 Also after oral arguments, the State was granted leave to additionally cite People v. Foskey,

136 Ill. 2d 66 (1990). Foskey stands for the finding that, if the State prevails on a defendant’s

motion to suppress, then the State has not waived an argument that might also have been raised

in support of the trial court’s ruling, given that the argument is not inconsistent with the

position the State took at trial. Id. at 84-85. The State cites Foskey as additional authority

because, during oral arguments, defendant argued in rebuttal that the State changed its theory

on appeal by newly asserting that the officer’s initial stop was a consensual encounter.

However, we have found this case rests on a Terry stop, so further analysis of Foskey is

unnecessary.

¶ 43 In addition, the State was granted leave to “reiterate” Thomas, 2019 IL App (1st) 170474,

after oral arguments for purposes of emphasizing that defendant had the initial burden of

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establishing that his stop and arrest were unreasonable. However, the facts in this case do not

make it necessary to belabor this aspect of Thomas, since defendant chose not to offer any

evidence or testify and the uncontradicted testimony of the officers demonstrated a valid Terry

stop.

¶ 44 III. CONCLUSION

¶ 45 In sum, the evidence showed that officers conducted a valid Terry stop, resulting in the

discovery of a firearm, and that the officers had probable to cause to arrest defendant, based

on all the surrounding circumstances. Consequently, the trial court did not err in denying

defendant’s motion to quash arrest and suppress evidence. Because the firearm and defendant’s

postarrest statements were not subject to exclusion, we do not reach defendant’s further

contention that no exceptions to the exclusionary rule apply to that evidence. Consequently,

defendant’s conviction for being an armed habitual criminal is affirmed.

¶ 46 Affirmed.

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