People v. Shipp
34 N.E.3d 204
Ill. App. Ct.2015Background
- Police responded to a 5:00 a.m. 911 report of a fight possibly involving guns near Miami Ave and Iroquois in Freeport; callers did not identify participants.
- Officer Zalaznik arrived quickly, saw Phillip Shipp and Denise Dickens walking; he exited his squad car, told them to stop, and (by his testimony) told them they were not free to leave while he investigated.
- Zalaznik repeatedly asked for identification, ordered Shipp to remove his hands from his pockets, and asked to conduct a pat-down; Shipp initially refused and then fled when officers tried to grab him.
- During the chase officers tackled and handcuffed Shipp and discovered a loaded pistol, cocaine, cannabis, and cash; Dickens’s testimony did not confirm Zalaznik’s statement that they were told they could not leave but did not assert the encounter was consensual.
- Trial court denied Shipp’s motion to suppress, concluding that Shipp’s flight constituted resisting/obstructing under section 31-1, making the subsequent search lawful; Shipp accepted a stipulated bench trial preserving the suppression issue, was convicted, and appealed.
- On postconviction review Shipp alleged appellate counsel was ineffective for not challenging the suppression denial; the trial court summarily dismissed the petition and this appeal followed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Shipp) | Held |
|---|---|---|---|
| Whether the initial stop was lawful | Presence near the dispatch, time of day, and uncooperative behavior justified stop | Mere presence in the area at 5 a.m. and ordinary behavior did not justify detention | Stop was unlawful (no articulable suspicion) |
| Whether a protective frisk was justified | Frisk was reasonable for officer safety given repeated pocketing and refusal to cooperate | Pocketing in cold weather and general demeanor did not create reasonable belief Shipp was armed and dangerous | Attempted frisk was unlawful (no reasonable belief defendant was armed) |
| Whether Shipp’s flight converted an unlawful stop into a lawful seizure | Flight justified pursuit and subsequent search (relying on Thomas) | Flight after an actual seizure cannot validate an initially unlawful stop; flight does not amount to resisting an authorized act absent an arrest | Flight did not cure illegality; Villarreal/Moore principles apply and evidence was tainted |
| Whether appellate counsel’s failure to raise suppression claim was prejudicial under Strickland | Even if counsel erred, the suppression issue would have failed on the merits | Reasonable probability the appeal would have succeeded if suppression argument had been raised | Trial court erred dismissing postconviction petition; ineffective-assistance claim stated (prejudice shown) |
Key Cases Cited
- People v. Villarreal, 152 Ill. 2d 368 (1992) (legislative scheme bars resisting-an-arrest defense even if arrest unlawful; limited to arrests)
- People v. Thomas, 198 Ill. 2d 103 (2001) (unprovoked flight before a seizure can justify subsequent detention; distinguishes flight before vs. after an actual seizure)
- People v. Kipfer, 356 Ill. App. 3d 132 (2005) (presence in an area at late hour, alone, insufficient for Terry reasonable suspicion)
- People v. Linley, 388 Ill. App. 3d 747 (2009) (proximity to dispatch call and late hour do not, by themselves, justify investigatory stop)
- People v. Moore, 286 Ill. App. 3d 649 (1997) (distinguishes unlawful Terry stops from arrests; flight from an unlawful stop does not constitute resisting an authorized act)
- People v. Henderson, 2013 IL 114040 (2013) (discusses attenuation/fruit-of-the-poisonous-tree when defendant abandons evidence during flight; distinguishes abandonment that purges taint from situations where discovery is closely linked to illegality)