2019 IL App (1st) 163053
Ill. App. Ct.2021Background
- Defendant DeAndre McMichaels was charged with being an armed habitual criminal and unlawful possession of a weapon by a felon arising from an incident on May 24, 2016.
- Officers were dispatched after a citizen reported “a male black with a black T-shirt, yellow shorts and dreadlocks in possession of a black handgun” near Ferdinand St. and Lamont Ave.; officers had seen a similarly dressed man earlier that day.
- On returning, officers parked ~10–15 feet away, announced themselves, and asked occupants (including defendant) to show their hands; three complied but defendant twice placed his hand in his right pocket and turned away.
- An officer grabbed defendant’s arm; when defendant’s hand came out of his pocket the butt of a semi‑automatic handgun protruded; officers seized the loaded gun and handcuffed defendant. Defendant said he had the gun for protection.
- The trial court denied defendant’s motion to quash arrest and suppress evidence, found a valid Terry stop and probable cause to arrest, and convicted and sentenced defendant to eight years; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was "seized" when officers arrived or only when they physically grabbed him | Officers: no seizure at arrival because defendant ignored commands; seizure occurred when officer grabbed him | Defendant: arrival plus command to show hands and multiple officers constituted a seizure | Court: no seizure at arrival; defendant did not submit to authority until grabbed, so seizure occurred when officer grabbed him |
| Whether officers had reasonable, articulable suspicion to conduct a Terry stop/search | State: tip describing a man with a gun plus defendant’s furtive conduct (hand in pocket, turning away, refusing to show hands) supported reasonable suspicion for officer safety and a Terry stop | Defendant: tip was unreliable; mere public possession of a firearm (post‑Aguilar) without other suspicious conduct cannot justify the stop | Court: totality of circumstances (matching tip + defendant’s noncompliance and furtive movement) provided reasonable suspicion; Terry stop and pat‑down were valid |
| Whether discovery of the gun during the stop gave probable cause to arrest despite no immediate inquiry about licensure or felonies | State: firearm in pocket plus matching tip and defendant’s conduct made probable cause reasonable under totality of circumstances; defendant failed to volunteer license info | Defendant: under Aguilar and Thomas, mere possession in public is not per se illegal and police should not arrest first and determine licensure later | Court: probable cause existed given the tip, furtive conduct, discovery of a loaded gun, and defendant’s failure to assert lawful possession; arrest affirmed |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (establishes stop‑and‑frisk/ investigatory stop standard)
- Aguilar, 2013 IL 112116 (Ill. 2013) (struck down categorical prohibition on carrying operable firearms outside the home; recognized right to bear arms beyond home)
- People v. Thomas, 198 Ill. 2d 103 (Ill. 2001) (distinguishes seizure from mere show of authority; discusses submission requirement)
- People v. Flowers, 179 Ill. 2d 257 (Ill. 1997) (Terry pat‑down standard and articulable facts requirement)
- People v. Foskey, 136 Ill. 2d 66 (Ill. 1990) (state may advance alternative, non‑inconsistent appellate arguments even if not relied on at trial)
- United States v. Mendenhall, 446 U.S. 544 (1980) (tests for when a person is seized under the Fourth Amendment)
- California v. Hodari D., 499 U.S. 621 (1991) (clarifies concepts of seizure and submission to show of authority)
- People v. Billingslea, 292 Ill. App. 3d 1026 (Ill. App. Ct. 1997) (refusal to comply with officers’ order and reaching for waistband held not submission to authority)