Joint Appendix — Illinois v. Wardlow

No. 98-1036

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

STATE OF ILLINOIS,

Petitioner,

vs.

WILLIAM WARDLOW, aka SAM WARDLOW,

Respondent.

On Writ of Certiorari to the Supreme Court of Illinois

JOINT APPENDIX

53 West Jackson Blvd.

Suite 1550

Chicago, Illinois 60604

(312) 362-0000

Counsel for Respondent

*Counsel of Record

JAMES E. RYAN

Attorney General

State of Illinois

JOEL D. BERTOCCHI

Solicitor General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

RICHARD A. DEVINE*

Cook County State’s Attorney

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 603-5496

RENEE G. GOLDFARB

THEODORE FOTIOS BURTZOS

VERONICA XIMENA CALDERON

Assistant State’s Attorneys

Counsel for Petitioner

PETITION FOR WRIT OF CERTIORARI FILED DECEMBER 22, 1998

CERTIORARI GRANTED MAY 3, 1999

, Xx

+\s

TABLE OF CONTENTS

Page

Chronological List of Relevant Docket Entries .... 1

Transcript of Proceedings, October 25,1995 ..... 2

Testimony of Officer Timothy Nolan ........... 3

I PF Tee 3

ee TE CCR 7

Petitioner and Respondent Rest........... 12

Trial Court’s Initial Statement

Ty kia c cee eae a ees 12

Transcript of Proceedings, December 6, 1995,

GN ER CESS tc ib ewedesdwereees 13

Published Opinion of the Illinois Supreme

Court, Filed September 24, 1998 .......... 16

Published Opinion of the Illinois Appellate

Court, First District, Second Division,

Filed March 18,1907 ...........2.----- 28

Order of the Supreme Court of the United

States, Dated May 3, 1999, Granting

RD 6 eA. k ba 0 eRe Shs PRUE OR ee ER 34

JAl

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

September 10, 1995 — Complaint filed in the Circuit

Court of Cook County charging Sam Wardlow with

Unlawful Use of Weapon by a Felon.

September 11, 1995 — Preliminary hearing held. Find-

ing of Probable Cause.

September 14, 1995 — Information filed in the Circuit

Court of Cook County charging Sam Wardlow with two

counts of Unlawful Use of Weapon by a Felon and two

counts of Unlawfu! Use of Weapon.

October 11, 1995 — Motion to Suppress Physical Evi-

dence filed by Sam Wardlow.

October 25, 1995 — Hearing held on Motion to Sup-

press Physical Evidence.

December 5, 1995 — Arguments heard on Motion to

Suppress Physical Evidence. Motion denied. Bench

trial. Finding of guilty. Sentencing.

December 19, 1995 — Notice of Appeal to Illinois

Appellate Court filed by Sam Wardlow.

March 18, 1997 — Published opinion of the Illinois

Appellate Court, First District, Second Division.

September 24, 1998 — Published opinion of the Illinois

Supreme Court.

JA 2

STATE OF ILLINOIS )

) SS:

COUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT-CRIMINAL DIVISION

THE PEOPLE OF THE ) Indictment

STATE OF ILLINOIS ) No. 95-CR-26952

) Before:

vs ) JUDGE FRED G. SURIA

) Wednesday,

SAM WARDLOW ) October 25, 1995.

Court having reconvened pursuant to adjournment.

APPEARANCES:

HON. JACK O'MALLEY,

State’s Attorney of Cook County, by

MR. ROBERT HEILINGOETTER,

Assistant State’s Attorney,

appeared for the People;

MS. RITA FRY,

Public Defender of Cook County, by

MS. IRENE CAVANAUGH,

Assistant Public Defender,

appeared for the defendant.

(p. A-3) THE CLERK:

The People of the State of Illinois versus Sam Ward-

low.

(Defendant present.)

JA3

THE COURT: Any opening remarks petitioner wishes

to make?

MS. CAVANAUGH: I have no opening statement to

make.

THE COURT: Any opening remarks the state wishes

to make?

MR. HEILINGOETTER: No, Judge.

THE COURT: This is a motion to quash arrest and

suppress evidence?

MR. HEILINGOETTER: I believe just a motion to

suppress evidence, correct.

MS. CAVANAUGH: Yes.

THE COURT: Petitioner may call their first witness.

MR. HEILINGOETTER: We have both Nolan and

Harvey. Officer Nolan is present in court now. Officer

Harvey stepped in the back.

THE COURT: Who do you wish to take the stand?

MS. CAVANAUGH: Officer Nolan.

(Witness sworn.)

(p. A-4) TIMOTHY NOLAN,

a witness called on behalf of the Petitioner, on the

motion, having been first duly sworn, was examined

and testified as follows:

DIRECT EXAMINATION

By Ms. Cavanaugh:

Q Would you state your name, please?

JA4

A Officer Timothy Nolan, N-o-l-a-n, Star 2558, as-

signed to the Special Operations Section of the Chicago

Police Department.

_ Q Officer Nolan, were you a police officer on Septem-

ber 9, 1995?

A Yes, I was.

Q And where were you assigned on that date?

A Special Operations Section. That particular date |

was assigned to the 11th District.

Q Were you working in uniform or plain clothes?

A Uniform.

Q Were yov working with a partner?

A Yes, I was.

Q And who was your partner?

A Officer Harvey.

Q And were you driving a marked or an unmarked

car?

(p. A-5) A I don’t recall that. It changes from day to

day.

Q Now, on September 9, 1995, in the vicinity of 4036

West Congress, did you see someone in the area that is

in court today?

A Yes,I do

Q And who is that?

A The subject to the right in the Department of

THE COURT: The identification by the witness of

Sam Wardlow.

JA5

MS. CAVANAUGH: Q Thank you, your Honor. And

Sopve Sem Saeehie neue te be ome Wentiow, te thet

correct

A Yes, I do.

Q Now, Officer, on that date, time, and place when

you saw Mr. Wardlow on the street, was he violating

any laws of the City of Chicago?

A Not at the time, no.

Q At that time when you first saw him, was he

violating any laws of the State of Illinois?

A Not at that time, no.

Q How about any laws of the United States of Ameri-

ca?

(p. A-6) A No.

Q When you saw Mr. Wardlow, what was he doing?

A He was looking in our direction and he began

running.

Q He was looking in your direction, but you could not

say for sure he was looking at you, is that correct?

A He was looking at us.

Q He was looking in your direction, however, right?

A Yes.

Q And at that time when he started running, now

running is not against the law, is it?

A No, it’s not.

Q So he was still not violating any laws that you

know of at that time?

A No, he wasn’t.

JA 6

Q What did you do at that point, Officer?

A I began driving southbound down the street ob-

serving him running through the gangway and the alley

southbound.

Q And did you catch up with Mr. Wardlow at some

point?

A Yes, I did.

(p. A-7) Q And what happened when you did that?

A I placed a stop on him to conduct a field interview.

Q At that time did you announce your office?

A Pardon me?

Q At that time that you put the stop on him when

you caught up with Mr. Wardlow, did you announce

your office at that time?

A No, I didn’t.

Q What did you do?

A I conducted a protective pat down for my own

safety.

Q Before you did that pat down, did you ask Mr.

Wardlow any questions?

A Not initially, no.

Q So you got out of your car and you did the protec-

tive pat down?

A Correct.

Q And did you find something on m about Mr. Ward-

low’s person?

A Yes, I did.

JA7

Q And what did you find?

A I discovered a revolver that was wrapped in a

plastic bag under his arm.

(p. A-8) Q Was this a clear plastic bag?

A No, it wasn’t.

Q It was a white opaque bag?

A Yes, it was.

Q And you could not see in that bag what was in

that bag before you opened it or felt what was in that

bag, could you?

A No, ma’an, I felt it. It appeared to be a weapon.

Q Right, but you could not see before you felt it?

A No.

Q And at that time did you place Mr. Wardlow under

arrest?

A Yes, I did.

MS. CAVANAUGH: I have no further questions.

THE COURT: State?

CROSS EXAMINATION

By Mr. Heilingoetter:

Q Officer, where was the defendant when you first

observed him on that date?

A He was standing approximately in front of 4035

West Van Buren.

Q And let me ask you, Officer, why was it that

(p. A-9) you went to that location on that date and

time?

JA8

A It’s one of the areas in the 11th District that’s high

narcotics traffic.

Q How many partners or police officers went to that

location along with you on that date and time?

A Including my partner and myself, there were eight

of us altogether.

Q And eight police officers, how many different police

cars?

A Four.

Q And you stated you and your partner, Officer

Harvey, were in your vehicle?

A Yes, we were. We were the last ones.

Q What was the purpose for having four cars all con-

verge on that same location on that date and time?

A Because of the large amount of people. Normally

in these different areas there’s an enormous amount of

people, sometimes lookouts, customers. -

Q And it was your assignment on that day, you and

the other four police cars that converged on this area,

to try to investigate narcctics sales in that area?

A Yes, sir.

Q Did all the four police cars arrive on the

(p. A-10) scene at the same time?

A Yes, we were all caravaning eastbound down Van

Buren.

Q And was it at that time that you were caravaning

down Van Buren that you first observed the defendant

you have identified in court?

JA9

A Yes, sir.

Q And what specifically did he do when you first saw

him?

A He looked in our direction and began fleeing.

Q And when he began to flee, what did you do?

A [also turned southbound going towards Congress,

observing him as he was running southbound.

Q Did you observe anything in his hands at that

time?

A No, sir. It was a white bag under his arm.

Q Was it under his arm the whole time as he ran?

A Well, from the times that I saw him, yes, it was.

Q And you were eventually able to corner him in the

vicinity of 4036 West Congress?

A Yes, sir, on the street.

Q How was it that you were able to stop him at that

location?

(p. A-11) A He ran right towards us.

Q And what happened at that time?

A I exited my car and did a protective pat down.

Q And you stated that when you exited your car you

were dressed in police uniform similar to how you're

dressed today?

A Yes, sir.

Q Meaning that you had your badge and your name

tag and your police—Chicago Police Department patch

on your arm?

A I was in full uniform, yes, sir.

JA 10

Q And as you approached him, you did a protective

search which included the bag that you saw under his

arm?

A Yes, sir, I squeezed the bag.

Q And when you squeezed the bag, what did you

feel?

A I felt a hard object that had a similar shape to a

revolver or a gun. It was very heavy.

Q How long have you been a Chicago police officer?

A Almost nine years.

Q And in the course of your nine years, are you

familiar with the different size and shapes of

(p. Al2) handguns?

A Yes, sir.

Q And when you felt this bag from the outside, what

did you believe it to be?

* I believed it to be a weapon.

Q Will you describe this plastic bag that this—that

you recovered the gun in?

A It was a white opaque bag, not as thin as a grocery

bag, more like a heavy like a Gap bag or a jean bag,

you know, that stores would give out, a heavier plastic

bag.

Q Were there any other items inside the bag that

you were able to feel other than the gun?

A No, sir, there was nothing else in there.

Q And after you felt that from the outside of the bag

and believed it to be a gun, what did you do?

JA 11

A I looked inside the bag and found it to be that.

Q It was in fact a .38 caliber handgun?

A Yes, sir.

Q Colt model. Did you check the gun to see whether or

not it was loaded?

A Yes, sir.

Q And it in fact had five live rounds, isn’t this

(p. A-13) correct?

A Yes, sir, it did.

Q In your experience, Officer, of investigating nar-

cotics areas in which narcotics are sold, is it common for

there to be weapons in the near vicinity?

A Yes.

MS. CAVANAUGH: Objection.

THE COURT: [I'll let the witness answer.

THE WITNESS: Yes, sir, it is common.

MR. HEILINGOETTER: Q Is that something that you

and your fellow officers contemplated as you approached

on that specific scene on that date and time?

A Yes, sir.

MR. HEILINGOETTER: Nothing further.

THE COURT: Anything further?

MS. CAVANAUGH: No more.

THE COURT: Thank you.

(Witness excused.)

THE COURT: Petitioner, do you wish to offer any

additional evidence?

MS. CAVANAUGH: No other additional evidence.

JA 12

THE COURT: Does the state respondent wish to offer

any additional evidence?

(p. Al4) MR. HEILINGOETTER: No, Judge.

THE COURT: Both sides having rested, petitioner

may argue.

** * *

(p.A17) THE COURT: Itis unfortunate we in Ameri-

ca don’t realize the rights we’re giving up in order to

protect ourselves from this very kind of situation where-

by guns and narcotics, being the nature that they are,

can be so secreted away and the only way to obtain them

is by the roundups and pat downs of fellow citizens.

This affects the rights of all of us. On the other hand,

if we wish to get the guns and the drugs off, there’s no

other way to do it and that’s the way the police were

attempting to do it in this case.

It is, however, my humble judgment the law does not

allow it at this point, so if the state feels they have any

cases that would show otherwise, I'll be glad to con-

tinue it to 12/6 and we'll see where we

(p. Al8) are.

MR. HEILINGOETTER: Judge, I would like that op-

portunity.

THE COURT: By agreement, 12/6.

MR. HEILINGOETTER: Judge, did the court actually

make a ruling on the motion?

THE COURT: 1’'ll reserve my ruling.

(A continuance was taken to

December 6, 1995.)

JA 13

STATE OF ILLINOIS )

) SS:

COUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT-CRIMINAL DIVISION

THE PEOPLE OF THE Indictment

STATE OF ILLINOIS No. 95-CR-26952

Before:

vs

JUDGE FRED G. SURIA

SAM WARDLOW

December 6, 1995

Court having reconvened pursuant to adjournment.

APPEARANCES:

HON. JACK O’MALLEY,

State’s Attorney of Cook County, by

MS. MARIA BURNETT &

MR. ROBERT HEILINGOETTER, 3

Assistant State’s Attorneys,

appeared for the People;

MS. RITA FRY,

Public Defender of Cook County, by

MS. IRENE CAVANAUGH,

Assistant Public Defender,

appeared for the defendant.

** *

(p. B12) THE COURT:

That is what they are saying.

You have to take it in connection with the appropri-

ate sections and they relate the appropriate sections to

JA 14

this case where the police already before they make the

stop have their specific and articulable facts. The police

in Mr. Wardlow’s case had nothing.

It is common knowledge police do know of the area

where drugs are being sold. They do have knowledge of

general areas where contraband, including weapons,

are being carried.

I appreciate we don’t have a general warrant situa-

tion. There’s no warrant at all as a

(p. B13) matter of fact in this case. I do believe we

are attempting to control what’s happening on our

streets. There’s no alternative but to suggest police do

have a right to drive up to an area, in this case the

defendant looking in the direction of the police officers.

Almost anybody can identify a police car marked or

obviously unmarked just as obviously.

And, this was a white officer as well in a black area.

Under all at attendant circumstances when the defen-

dant realized the circumstances for which they are

there does in fact flee. I think they do have a right to

stop and question and in doing so have a right to

protect themselves by a patdown.

I would respectfully deny the defense motion to

suppress the facts. I will note your objection.

MS. CAVANAUGH: I think it’s clearly against the

law, your Honor.

THE COURT: I understand.

MS. CAVANAUGH: I would ask—

THE COURT: A shame we have to do this, but I

know no other alternative.

JA 15

MS. CAVANAUGH: I don’t think going against the

Constitution is a proper alternative.

(p. B14) THE COURT: It’s within the framework of

the Constitution and always been observed in light of

what’s going on in fact.

MS. CAVANAUGH: I think just because it’s practice

doesn’t make it right.

THE COURT: I agree. Practice does not make it

right. I also agree there’s urgency on the streets and we

are not-—this is one method of doing so of trying to con-

front that. And, once a person flees after having looked

in the direction of the officer there’s reasonable—there’s

reason to think there’s a problem, they have a right to

make inquiry.

MS. CAVANAUGH: Without nothing more specific

than that there is no right. That’s a police state.

THE COURT: They were going to an area where

there was in fact drugs being sold. We know—

MS. CAVANAUGH: That’s my neighborhood, too. If

I walk away from the police they can stop me?

THE COURT: I think they ought to stop and do so if

you were to run.

Be that as it may we are in disagreement.

JA 16

Opinion of the Illinois Supreme Court

Docket No. 83061-Agenda 7-May 1998.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant, v. SAM WARDLOW, Appellee.

JUSTICE HARAISON delivered the opinion of the

court:

Defendant, Sam Wardlow, was convicted of unlawful

use of a weapon by a felon (720 ILCS 5/24-1.(a) (West

1994)) following a stipulated bench trial in Cook County

and was sentenced to a term of two years’ imprison-

ment. On appeal, the appellate court reversed defen-

dant’s conviction, finding that defendant’s motion to

suppress evidence should have been granted because

the revolver seized from him was discovered as a result

of an improper investigatory stop. 287 Ill. App. 3d 367.

We allowed the State’s petition for leave to appeal. 166

Ill. 2d R. 315(a); 145 Ill. 2d R. 604(aX2).

At the hearing on defendant’s motion to suppress,

Officer Timothy Nolan testified that on September 9,

1995, he and his partner, Officer Harvey, were assigned

to the special operations section of the Chicago police

department. On that date, Nolan and Harvey were

among eight officers in four cars travelling eastbound

on West Van Buren Street with the purpose of investi-

gating narcotics sales in that area. Nolan stated that he

was working in uniform, but did not recall whether the

police car he drove, the last in the “caravan,” was

marked or unmarked.

Nolan testified that as he was driving, he observed

defendant standing in front of 4035 West Van Buren.

Defendant, who did not appear to be violating any laws,

JA 17

looked in the officers’ direction and then fled. Nolan

turned his vehicle southbound toward Congress Avenue,

continuing to observe defendant, who ran southbound

through a gangway and then through an alley. Nolan

stated that defendant, who was carrying a white

opaque bag under his arm, was cornered in the vicinity

of 4036 West Congress when he “ran right towards us.”

Nolan exited his car and stopped defendant. Without

announcing his office or asking any questions, he con-

ducted a protective pat-down search of defendant.

Nolan testified that he could not see inside the bag

defendant was carrying so he “squeezed” the bag and

felt a very heavy, hard object “that had a similar shape

to a revolver or a gun.” Believing the object to be a

weapon, Nolan opened the bag and found a .38-caliber

handgun containing five live rounds of ammunition.

Nolan then placed defendant under arrest.'

Responding to the State’s question as to why he “went

to that location on that date and time,” Nolan answered

that it was “one of the areas in the 11th District that’s

high narcotics traffic.” Nolan further testified that,

based upon his experience in investigating areas in

which narcotics were sold, it was common for there to

be weapons “in the near vicinity” and he considered

that fact as he approached “that specific scene.” After

hearing arguments by the parties, the trial court denied

defendant’s motion to suppress.

Generally, a trial court’s ruling on a motion to sup-

press evidence is subject to reversal only if manifestly

' While no was presented as to the ise time of

defendant's arrest, record contains * trad peenewtpemneding

JA 18

erroneous. People v. Dilworth, 169 Ill. 2d 195, 201

(1996). This clearly erroneous or manifestly erroneous

test is based on the understanding that suppression

motions usually raise mixed questions of law and fact.

See People v. Frazier, 248 Ill. App. 3d 6, 12 (1993).

However, where, as here, neither the facts nor the

credibility of the witnesses is contested, the determina-

tion of whether there is reasonable suspicion warrant-

ing an investigatory stop is a legal question which a

reviewing court may consider de novo. See In re D.G.,

144 Ill. 2d 404, 408-09 (1991); People v. Foskey, 136 Ill.

2d 66, 76 (1990); see also People v. Besser, 273 Ill. App.

3d 164, 167 (1995).

The fourth amendment to the United States Constitu-

tion guarantees the “right of the people to be secure in

their persons, houses, papers, and effects, against un-

reasonable searches and seizures.” U.S. Const., amend.

IV. This provision applies to all seizures of the person,

including seizures that involve only a brief detention

short of traditional arrest. United States v. Brig-

noni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614, 95

S. Ct. 2574, 2578 (1975); People v. Smithers, 83 Ill. 2d

430, 433-34 (1980). In Terry v. Ohio, 392 U.S. 1, 20 L.

Ed. 2d 889, 88 S. Ct. 1868 (1968), the United States

Supreme Court held that the public’s interest in ef-

fective law enforcement makes it reasonable to detain

and question individuals under certain circumstances

in which probable cause to arrest is lacking. However,

in order to protect “the individual’s right to personal

security free from arbitrary interference by law officers”

(Brignoni-Ponce, 422 U.S. at 878, 45 L. Ed. 2d at 615,

95 S. Ct at 2579), the Terry Court held that such limi-

ted investigatory stops are permissible only upon a rea-

JA 19

sonable suspicion based upon specific and articulable

facts that the person has committed, or is about to

commit, a crime. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d

at 906, 88 S. Ct. at 1880; Smithers, 83 Ill. 2d at 434.

This Terry standard has been codified in our Code of

Criminal Procedure of 1963. People v. Flowers, 179 III.

2d 257, 262 (1997); People v. Long, 99 Ill. 2d 219, 228

(1983). Section 107-14 of the Code provides, in perti-

nent part: “A peace officer * * * may stop any person in

a public place for a reasonable period of time when the

officer reasonably infers from the circumstances that

the person is committing, is about to commit or has

committed an offense * * *.” 725 ILCS 5/107-14 (West

1994). The same standard is applied in determining the

propriety of an investigatory stop under article I, sec-

tion 6, of the Illinois Constitution of 1970 (Ill. Const.

1970, art. I, §6). See People v. Tisler, 103 Ill. 2d 226,

242-43 (1984) (the protection against unreasonable

searches and seizures under the IIlinois Constitution is

measured by the same standards as are used in defin-

ing the protections contained in the fourth amendment

to the United States Constitution).

Turning to the case before us, defendant contended on

direct appeal that the trial court erred in denying his

motion to suppress because his presence in a high-crime

area and flight from police were insufficient to justify

his investigatory stop. The appellate court agreed, but

found the record “simply too vague to support the in-

ference that defendant was in a location with a high

incidence of narcotics trafficking” and limited its hold-

ing accordingly. 287 Ill. App. 3d at 370-71. However, we

believe Officer Nolan’s uncontradicted and undisputed

testimony, which was accepted by the trial court, was

JA 20

sufficient to establish that the incident occurred in a

high-crime area. See Ornelas v. United States, 517 U.S.

690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663

(1996) (as a general matter determinations of reason-

able suspicion and probable cause should be reviewed

de novo on appeal, but reviewing court should take care

both to review findings of fact only for clear error and

to give due weight to inferences drawn from those facts

by judges and local law enforcement officers). Thus, the

issue presented by this appeal is whether an individu-

al’s flight upon the approach of a police vehicle patrol-

ling a high-crime area is sufficient to justify an investi-

gative stop of the person. Defendant contends that such

flight alone is insufficient to create a reasonable sus-

picion of involvement in criminal conduct. We agree.

A majority of jurisdictions addressing this issue have

held that flight alone is insufficient to justify a Terry

stop. See, e.g., State v. Tucker, 136 N.J. 158, 642 A.2d

401 (1994); State v. Hicks, 241 Neb. 357, 488 N.W.2d

359 (1992); People v. Shabaz, 424 Mich. 42, 378 N.W.2d

451 (1985); People v. Aldridge, 35 Cal. 3d 473, 674 P.2d

240, 198 Cal. Rptr. 538 (1984); People v. Thomas, 660

P.2d 1272 (Colo. 1983); Watkins v. State, 288 Md. 597,

420 A.2d 270 (1980). “Instead, courts require proof of

some independently suspicious circumstance to corrobo-

rate the inference of a guilty conscience associated with

flight at the sight of the police. [Citations.]” Hicks, 241

Neb. at 362-63, 488 N.W.2d at 363; see also Tucker, 136

N.J. at 169, 642 A.2d at 407 (for departure to take on

the legal significance of flight, there must be some cir-

cumstances present and unexplained which, in conjunc-

tion with the leaving, reasonably justify an inference

that it was done with a consciousness of guilt and pur-

JA 21

suant to an effort to avoid an accusation based on that

guilt).

In Hicks, the Nebraska Supreme Court examined a

number of these “location plus evasion” cases and, in a

well-reasoned opinion, concluded:

“[A]llowing flight alone to justify an investiga-

tive stop would undercut the very values Terry

sought to safeguard. Terry is based in part upon

the proposition that the right to freedom from

arbitrary governmental intrusion is as valuable

on the street as it is in the home. Thus, while a

police officer does not violate the Fourth

Amendment by approaching an individual in a

public place and asking if the person will an-

swer some questions, neither is the person un-

der any obligation to answer. Florida v. Royer,

460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229

(1983). The person may decline to listen to the

questions at all and simply go on his or her

way. Id. If the option to ‘move on’ is chosen, the

person ‘may not be detained even momentarily

without reasonable, objective grounds for doing

so; and his refusal to listen or answer does not,

ae more, furnish those grounds.’ 460 U.S.

at 498.

* * * Flight upon approach of a police officer

may simply reflect the exercise-‘at top speed’-of

the person’s constitutional right to ‘“move on.”’

Shabaz, 424 Mich. at 63, 378 N.W.2d at 460.

Terry and Royer stand for the proposition that

exercise of this constitutional right may not

a provide the basis for more intrusive police

vity.

JA 22

A prime concern underlying the Terry decision

is protecting the right of law-abiding citizens to

eschew interactions with the police. Authorizing

the police to chase down and question all those

who take flight upon their approach would

undercut this important right and upset the

balance struck in Terry between the individual’s

right to personal security and the public’s inter-

est in prevention of crime. We therefore join

those jurisdictions holding that flight from a

police officer is sufficient to justify an investi-

gatory stop only when coupled with specific

knowledge connecting the person to involvement

in criminal conduct. [Citations.]” Hicks, 241

Neb. at 363-64, 488 N.W.2d at 363-64.

Although no Illinois court has specifically considered

whether sudden flight from police in a high-crime area

justifies a stop, we agree with the appellate court that

“{iln Illinois, neither a person’s mere presence in an

area where drugs are sold (People v. Harper, 237 Ill.

App. 3d 202, 205, 603 N.E.2d 115 (1992)) nor sudden

flight (People v. Rivera, 233 Ill. App. 3d 69, 77, 598

N.E.2d 423 (1992)) alone will justify a Terry stop.” 287

Ill. App. 3d at 370; see also People v. Fox, 97 Ill. App.

3d 58 (1981) (driving away at approach of marked

police vehicle not a justification for stop). Moreover,

this court has recently emphasized the importance of

protecting the freedom to engage in such harmless

activities as “loafing, loitering, and nightwalking” and

other personal liberties of citizens, including the right

to travel, to locomotion, to freedom of movement, and to

associate with others. City of Chicago v. Morales, 177

Ill. 2d 440, 459-60 (1997), cert. granted, __. U.S. __,

140 L. Ed. 2d 664, 118 S. Ct. 15.

JA 23

In Morales, we found that 2 City of Chicago ordinance

which prohibited certain individuals from loitering in

public places violated substantive due process because

it unreasonably infringed on “the personal liberty of

being able to freely walk the streets and associate with

friends.” Morales, 177 Ill. 2d at 460-61. We find similar-

ly unreasonable the State’s proposal, in the instant

case, that every person observed in “sudden and un-

provoked flight” from an officer may be stopped regard-

less of whether the surrounding circumstances indicate

the person is involved in criminal activity. Cf. People v.

Holdman, 73 Ill. 2d 213 (1978) (defendants’ flight fol-

lowing officers’ shining bright light into vehicle they

reasonably believed to be associated with fugitive for

whom they had warrant was indication of criminal

activity requiring police pursuit). As defendant sug-

gests, “[i]f the police cannot constitutionally force other-

wise law-abiding citizens to move, the police cannot

force those same citizens to stand still at the appear-

ance of an officer.” Therefore, because we agree with

the majority of courts that view the unequivocal flight

of a suspect upon seeing police as not alone indicative

of criminal activity, we now examine the record herein

to determine if there are corroborating circumstances

sufficient to create the reasonable suspicion necessary

for the stop of defendant.

The case before us is factually similar to People v.

Mamon, 173 Mich. App. 429, 435 N.W.2d 12 (1988),

rev'd on other grounds, 435 Mich. 1, 457 N.W.2d 623

(1990). There, two police officers were driving on

routine patrol in a marked squad car through an area

known for narcotics activity. As the officers approached

the defendant, Mamon, standing on a corner near a

JA 24

public phone, he took off running. The officers pursued

the defendant on foot, noticing that he removed a case

from his pocket and dropped it during the chase. The

officers ultimately caught the defendant and retrieved

the case, which contained cocaine. The trial court

quashed an information charging the defendant with

possession of a controlled substance, and the State

appealed.

The Michigan appeals court affirmed the trial court’s

decision, first addressing the circumstances existing

before the defendant began to run. Though the incident

occurred in a high-crime neighborhood, the court deter-

mined that a person’s presence in such an area cannot,

by itself, provide the basis for an investigatory stop. In

so doing, the court noted that the officers were not

responding to a particular complaint of wrongdoing in

the area and that the defendant made no furtive

gestures prior to seeing the officers. Concluding that

the officers lacked an articulable basis for stopping the

defendant as he stood on the corner, the court turned

to the significance of his flight upon their approach.

Noting the ambiguous nature of flight as an indicator

of guilt, the court held that the act of running at the

sight of police patrolling a high-crime area did not pro-

vide the particularised grounds necessary to support a

reasonable suspicion that criminal activity was afoot.

Mamon, 173 Mich. App. at 435-38, 435 N.W.2d at

14-16.

Here, similar to Mamon, Officers Nolan and Harvey

were “caravaning” with several other police vehicles

when the incident occurred. They were not responding

to any call or report of suspicious activity in the area.

Though Officer Nolan testified that that area of the

JA 25

11th District is known for “high narcotics traffic,” we

agree with our appellate court’s opinion in Harper, 237

Ill. App. 3d at 205-06, and the numerous decisions from

other jurisdictions, holding that a person’s presence in

such an area by itself does not warrant a suspicion that

that person is involved in crime. See Brown v. Texas,

443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979);

Hicks, 241 Neb. at 366, 488 N.W.2d at 365; Shabaz,

424 Mich. at 60, 378 N.W.2d at 459; see also Jn re D.J.,

532 A.2d 138, 143 (D.C. App. 1987) (innocent activities

do not become sinister by the mere fact that they take

place in a high-crime area).

It is aiso clear that defendant herein gave no outward

indication of involvement in illicit activity prior to the

approach of Officer Nolan’s vehicle. Defendant was sim-

ply standing in front of a building when the officers

drove by. As in Mamon, the officers lacked an articula-

ble basis for suspecting defendant of involvement in

criminal activity prior to the point at which he turned

and ran.

In Fox, the Illinois case which most closely approxi-

mates the issue presented herein, the appellate court

foreshadowed our concerns, stating:

“At the time of the stop, the investigating

officers were aware that ‘partying and littering’

had recently occurred in the * * * area and also

that the vehicle in which the defendant was

riding as a passenger exitea the area at a speed

which one officer believed to be unreasonable

upon the approach of a squad car. But, the offi-

cers testifying on behalf of the State did not

relate that any additional suspicious or unusual

activities that would have alerted the police to

JA 26

the possibility of criminality were carried on by

the occupants of the automobile. * * *

In short, the evidence adduced in this case

does not support the State’s contention that the

police were aware of specific and articulable

facts to justify the stop here. Rather, the evi-

dence suggests that the police officers were

operating under a suspicion or hunch that the

vehicle contained someone who had committed

or was about to commit a crime.” (Emphasis

added.) Fox, 97 Ill. App. 3d at 63-64.

Here, as in Fox, in the absence of circumstances cor-

roborating the conclusion that defendant was involved

in criminal activity, Officer Nolan’s testimony reveals

nothing more than a hunch.

As our brethren on the Supreme Court of Colorado

have so aptly stated:

“We are aware that the weighty social objec-

tive of crime prevention might well be served by

permitting stops and detentions without any

requirement of a reasonable suspicion that crim-

inal activity has occurred or is about to take

place. In the absence of specific and articulable

facts supporting the reasonable suspicion, how-

ever, ‘the balance between the public interest

and [defendant’s] right to personal security and

privacy tilts in favor of freedom from police in-

terference.’ Brown v. Texas, [443 U.S.] at 52, 99

S. Ct. at 2641, 61 L. Ed. 2d at 363.” Thomas,

660 P.2d at 1277.

Where, as here, the police stop is not based upon

objective criteria pointing to a reasonable suspicion of

criminal activity, “the risk of arbitrary and abusive

JA 27

police practices exceeds tolerable limits.” Brown v.

Texas, 443 U.S. at 52, 61 L. Ed. 2d at 363, 99 S. Ct. at

2641.

Therefore, because Officer Nolan was not able to

peint to specific facts corroborating the inference of

guilt gleaned from defendant’s flight, his stop and

subsequent arrest of defendant were constitutionally

infirm. U.S. Const., amend. IV; Ill. Const 1970, art. 1,

§6. The appellate court, therefore, properly reversed the

trial court’s denial of defendant’s motion to suppress

evidence. The weapon that was the basis for defen-

dant’s conviction should have been suppressed as the

product of the unconstitutional seizure of his person.

Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed.

2d 441, 455, 83 S. Ct. 407, 417 (1963).

For the foregoing reasons, the judgment of the appel-

late court, reversing the judgment of the circuit court,

is affirmed.

Appellate court judgment affirmed.

JA 28 -

Opinion of The Appellate Court of Illinois

First District, Second Division

No. 1-96-0094, Filed March 18, 1997

PEOPLE OF THE ) Appeal from the

STATE OF ILLINOIS, ) Circuit Court of

) Cook County

Plaintiff-Appellee, )

) No. 95 CR 26952

v. )

) The Honorable

SAM WARDLOW, ) Fred Suria,

) Judge Presiding

Defendant-Appellant. )

JUSTICE DiVITO delivered the opinion of the court:

Following a bench trial, defendant Sam Wardlow was

found guilty of unlawful use of a weapon by a felon and

was sentenced to two years’ imprisonment. The sole

issue in this appeal is whether the circuit court erred

in denying defendant’s motion to suppress the gun that

was seized from him during an investigatory stop. For

the reasons that follow, we conclude that defendant's

motion to suppress should have been granted and we

reverse his conviction.

At the hearing on defendant's motion to suppress,

Officer Timothy Nolan testified that on September 9,

1995, he and his partner, Officer Harvey, were assigned

to the special operations section of the Chicago police

department. They were among eight officers in four

cars who were driving eastbound on West Van Buren.

Officer Nolan’s car was last in the line of vehicles

driving in the area. Although Officer Nolan could not

recall whether his car was marked, he and his partner

were in uniform. There was no evidence concerning

JA 29

whether any of the other cars were marked or concern-

ing the clothing of the other officers.

The cars were “caravaning” eastbound down Van

Buren, when Officer Nolan observed defendant, who

was not violating any laws, standing near the front of

4035 West Van Buren Street. Defendant looked in the

officers’ direction, then fled. Holding a white bag under

his arm, he ran through a gangway and then through

an alley. Officer Nolan drove south, observing defen-

dant as he ran. Near 4036 West Congress, defendant

ran towards him.

Officer Nolan exited his car and stopped defendant.

Without announcing his office or asking any questions,

he conducted a protective pat-down search of defendant.

He could not see inside the plastic bag that defendant

was carrying. He patted the outside of the bag and “felt

a hard object that had a similar shape to a revolver or

a gun.” Officer Nolan believed the object, which was

very heavy, to be a weapon. He looked inside the bag

and found a .38-caliber handgun containing five live

rounds of ammunition. He then placed defendant under

arrest.

Officer Nolan testified that he and the other officers

had gone to the area because it was “one of the areas

in the 11th District that’s high narcotics traffic.” Based

upon his experience with investigation of areas in

which narcotics are sold, Officer Nolan knew that it

was common to find weapons in the vicinity of such

areas.

The police report indicated that defendant, who was

44 years old, was arrested at 12:15 p.m.

The circuit court denied the motion to suppress. A

stipulated bench trial followed, and defendant was

JA 30

found guilty of unlawful use of a weapon by a felon and

was sentenced to a two-year term of imprisonment.

In this appeal, defendant contends that the circuit

court erred in denying his motion to suppress because

his presence in a high crime area and flight from the

police officers were insufficient to justify his investiga-

tory stop. We note that although no Illinois court has

considered whether sudden flight from police officers in

a high crime area justifies a stop, other jurisdictions

are divided on the question. Compare Harris v. State,

205 Ga. App. 813, 423 S.E.2d 723 (1992), and State v.

White, 660 So. 2d 515 (La. Ct. App. 1995) (flight from

police officers in high crime area justifies investigatory

stop), with People v. Holmes, 81 N.Y.2d 1056, 619

N.E.2d 396, 601 N.Y.S.2d 459 (1993), affirmed, 89

N.Y.2d 838 (1996), Hopkins v. State, 661 So. 2d 774

(Ala. Crim. App. 1994), Britt v. State, 673 So. 2d 934

(Fla. App. 1996), and State v. Hicks, 241 Neb. 357, 488

N.W.2d 359 (1992) (flight from police officers in high

crime area does not justify stop).

Where, as here, there is no challenge to the facts or

the credibility of the witnesses, we review a motion to

suppress de novo. People v. Foskey, 136 Ill. 2d 66, 76,

554 N.E.2d 192 (1990); Ornelas v. United States, 517

U.S. 690, 700, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657,

1663 (1996).

Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88

S. Ct. 1868 (1968) (codified at 725 ILCS 5/107-14 (West

1994)), a police officer may stop and detain a person for

temporary questioning if the officer reasonably infers

from the situation that the person is committing, is

about to commit, or has committed a crime. Terry, 392

U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880. To

justify an investigatory stop, the police officer must be

JA 31

able to point to specific and articulable facts that

reasonably warrant the intrusion. Terry, 392 U.S. at 21,

20 L. Ed. 2d at 906, 88 S. Ct. at 1880. In determining

whether a stop is reasonable, the court employs an

objective standard: would an officer of reasonable

caution, knowing the facts available at the time of the

stop, believe the action was appropriate? People v.

Rivera, 272 Ill. App. 3d 502, 504-05, 650 N.E.2d 1084

pony appeal denied, 164 Ill. 2d 577, 660 N.E.2d 1277

In Illinois, neither a person’s mere presence in an

area where drugs are sold (People v. Harper, 237 IIl.

App. 3d 202, 205, 603 N.E.2d 115 (1992)) nor sudden

flight (People v. Rivera, 233 Ill. App. 3d 69, 77, 598

N.E.2d 423 (1992)) alone will justify a Terry stop. Past

criminal activity in an area (People v. Hunt, 188 IIl.

App. 3d 359, 362, 544 N.E.2d 118 (1989), appeal denied,

128 Ill. 2d 668, 548 N.E.2d 1074 (1989)) and flight

(Rivera, 233 Ill. App. 3d at 77), however, are relevant

factors to be considered in determining whether circum-

stances justify an investigatory stop.

For example, in People v. Rivera, 233 Ill. App. 3d 69,

76-77, 598 N.E.2d 423 (1992), police officers entered the

defendant’s bar, having received information that co-

caine was stored in the basement and the defendant

was involved in its sale and distribution. According to

the testimony of the police officers, the defendant ap-

peared frightened and fled when they entered the bar.

Rivera, 233 Ill. App. 3d at 77. The court found that the

flight of defendant, combined with the information

known to the officers, provided the requisite reasonable

suspicion. Rivera, 233 Ill. App. 3d at 77.

From the record before us, we cannot discern the pre-

cise location of the area known by the officers to have

JA 32

a high incidence of narcotics trafficking. After he tes-

tified that he noticed defendant at 4035 West Van

Buren, Officer Nolan was asked why he went to that

area. He responded that it was one of the areas in the

llth District that had “high narcotics traffic.” His

testimony indicates only that the officers were headed

somewhere in the general area. There was no evidence

that the officers were investigating the specific area

where defendant had been standing or that any of the

police cars had stopped at that location or that defen-

dant had any basis for believing that police were inter-

ested in his activity.

Officer Nolan testified that he was “caravaning” down

West Van Buren when he noticed defendant. He did not

testify that the officers were targeting 4035 West Van

Buren because it was known to be a location where

drugs were sold. From the evidence elicited at the hear-

ing on the motion to suppress, it appears that the offi-

cers were simply driving by, on their way to some un-

identified location, when they noticed defendant stand-

ing at 4035 West Van Buren. The record here is simply

too vague to support the inference that defendant was

in a location with a high incidence of narcotics traffick-

ing or, for that matter, that defendant’s flight was

related to his expectation of police focus on him.

Because we find no support in the record for the con-

tention that defendant was in a high crime location, we

are left only with the fact of his sudden flight from an

area past which police officers were driving. That cir-

cumstance alone does not satisfy the requirements for

a lawful investigatory stop. Rivera, 233 Ill. App. 3d at

77. Accordingly, the circuit court erred in denying de-

fendant’s motion to suppress.

JA 33

We emphasize the limited nature of our holding. Be-

cause we recognize the importance of the police interest

in investigating crime, we do not hold that the presence

of a suspect in a high crime location, together with his

subsequent flight from police, is never grounds for a

Terry stop. Certainly, a “high crime area is a place in

which the character of the area gives color to conduct

which might not otherwise raise the suspicion of an of-

ficer.” White, 660 So. 2d at 519. To pass constitutional

muster, however, the high crime area should be a suf-

ficiently localized and identifiable location. This limita-

tion is necessary to “assure that an individual's reason-

able expectation of privacy is not subject to arbitrary

invasions solely at the unfettered discretion of officers

in the field,” simply because he or she happens to live

n a neighborhood where crime is prevalent. Brown v.

Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362, 99 S. Ct.

2637, 2640 (1979).

Accordingly, the weapon that was the basis for defen-

dant’s conviction should have been suppressed because

it was discovered as a result of an unjustified investiga-

tive stop. Wong Sun v. United States, 371 U.S. 471,

488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417 (1963).

Rather than remanding, we reverse defendant’s convic-

tion outright because the State will not be able to pre-

vail without the recovered evidence. People v. Evans,

259 Ill. App. 3d 650, 659, 631 N.E.2d 872 (1994).

The judgment of the circuit court is reversed.

Reversed.

RAKOWSKI and McNULTY JuJ., concur.

JA 34

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

WASHINGTON, D.C. 20543-0001

May 3, 1999

Renee G. Goldfarb, Esq.

Assistant State’s Attorney

309 Richard J. Daley Center

Chicago, Illinois 60602

Re: 98-1036 - Illinois v. Wardlow, William AKA Sam

Dear Ms. Goldfarb:

The Court today entered the following order in the

above case:

“The motion of respondent for leave to proceed

in forma pauperis is granted. The petition for

writ of certiorari is granted.”

Enclosed are Memoranda describing the procedures

under the Rules, together with a Specification Chart for

your use. To further assist you in preparing your case

before this Court, a copy of the Guide for Counsel is

enclosed. Although this case will not be scheduled for

oral argument this Term please note that requests for

extensions of time to file briefs on the merits are not

favored.

If you have any questions, please contact me.

Sincerely,

WILLIAM K. SUTER, CLERK

Denise J. McNerney

Assistant Clerk-Merits Cases

(202) 479-3032

Enclosures