PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDUARDO GOMEZ, Defendant-Appellant.
No. 1-15-0605
Appellate Court of Illinois, First District, Second Division
April 3, 2018
Rehearing denied May 3, 2018
2018 IL App (1st) 150605
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Mason concurred in the judgment and opinion. Justice Hyman concurred in part and dissented in part, with opinion.
Appeal from the Circuit Court of Cook County, No. 14-CR-13389; the Hon. Maura Slattery Boyle, Judge, presiding. Judgment: Affirmed in part, vacated in part, and remanded in part.
Michael J. Pelletier, Patricia Mysza, and Michael Gomez, of State Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Joseph Alexander, and Brenda K. Gibbs, Assistant State’s Attorneys, of counsel), for the People.
¶ 1 Following a bench trial, defendant Eduardo Gomez was convicted of being an armed habitual criminal (AHC) (
BACKGROUND
¶ 2
¶ 3 On July 3, 2014, following an encounter with several Chicago police officers, defendant was found to be in possession of a loaded firearm and was charged with multiple offenses, including armed habitual criminal, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon. After being taken into police custody, defendant admitted to possessing the firearm.
¶ 4 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing that he was unlawfully detained and searched absent probable cause or a warrant in violation of his constitutional rights. As such, he contended that suppression of the firearm and his incriminatory statement was warranted.
¶ 5 The circuit court subsequently presided over a hearing on defendant’s motion. At the hearing, defendant’s friend, Frankie Baez, testified that at approximately 10:45 p.m. on July 3, 2014, he, defendant, and their mutual friend, Enriquez Salvador (Junior), were sitting in a parked vehicle located near the intersection of 52nd Street and Kildare Avenue. Baez explained that they were waiting for his girlfriend to join them. The vehicle in which they were sitting was owned by Junior’s father, who operated a taxi company. Baez described the vehicle as a white “taxi car.”1 Junior was seated in the driver’s seat of the vehicle, defendant was seated in the backseat directly behind Junior, and Baez was seated in the backseat next to defendant. While the three men were seated in the parked vehicle, an unmarked
stuff.” The officer who was closest to defendant then bent down and recovered a firearm from underneath the car. Baez testified that the officers did not present a search warrant or an arrest warrant for defendant at any time during the encounter.
¶ 6 On cross-examination, Baez acknowledged that defendant was a good friend whom he had known for several years. When asked additional details about the night in question, Baez admitted that the three men had been driving around the neighborhood in Junior’s father’s car for at least 40 minutes before stopping the vehicle on 52nd Street. He estimated that they were sitting in the parked vehicle for 10 to 15 minutes before the police officers arrived on the scene. Baez also acknowledged that when the officers pulled up alongside of Junior’s father’s car, the officers did not immediately exit their unmarked car and order the men to raise their hands in the air; rather, the officers remained seated in their vehicle and spoke to Junior while the windows of the two vehicles were rolled down and inquired what the three men were doing in the neighborhood that night. During the course of this conversation, Baez admitted that defendant started “scooting down in his seat,” which was located right behind Junior’s seat. Baez further admitted that defendant was hiding a gun in his waistband. In addition, he acknowledged that the officers exited their unmarked vehicle only after they observed defendant scooting down in his seat. The officers then ordered each of the men to show their hands. Although defendant complied with the officers’ request and raised his hands, Baez admitted that defendant continued scooting down in the backseat until they were all ordered to exit the car. As Baez and his friends exited the vehicle, he heard one of the officers reference a noise, saying “What was that? What was that? What was that?” The officers then used their flashlights to illuminate the ground and recovered defendant’s gun next to where defendant was standing. Baez, however, denied that he heard the sound of a gun dropping.
¶ 7 Following Baez’s testimony, the defense rested, and defense counsel moved for a directed finding, which the circuit court denied. The State then called Chicago police detective Anthony Amato to testify. Detective Amato testified that on July 3, 2014, he was working with Sergeant Karczewski and Officer Daniel Pacelli. The three officers were wearing plain clothes and were riding in an unmarked police vehicle. Detective Amato, the driver of the unmarked police car, confirmed that at approximately 10:45 p.m. that evening, he and his partners encountered defendant, who was a passenger in a white Mercury Grand Marquis parked near the area of 4242 West 52nd Street. He explained that he had observed the vehicle on two prior occasions during a 30 to 40 minute period of time as he and his partners patrolled the area. During the previous two occasions that he observed the Grand Marquis, the vehicle was moving. On this occasion, however, the vehicle was parked facing westbound on 52nd Street. After observing the same vehicle for the third occasion in a
¶ 8 As he spoke to the driver of the Grand Marquis, Detective Amato was able to observe defendant, who was seated directly behind the driver in the rear of the vehicle. When the conversation began, defendant was “seated upright” with his torso visible to the officers. As the conversation proceeded, however, defendant began “slouching down in the car. *** He just kept on like steadily slouching down as [the officers] were talking to the driver. So his head
was, you could only see like his head at one point in time.” Detective Amato categorized defendant’s behavior as “suspicious.” Based on defendant’s suspicious behavior and the driver’s responses to his inquiries, Detective Amato and his partners exited their unmarked vehicle and approached the parked Grand Marquis. Detective Amato and Sergeant Karczewski walked to the driver’s side of the vehicle while Officer Pacelli relocated to the passenger side of the vehicle. As Detective Amato stood by the driver’s side of the Grand Marquis, he observed defendant leaning away from him and “toward the middle portion of the seat” with his right forearm covering the waistband of his pants. Defendant’s right hand “was actually under his shirt.” Detective Amato again found defendant’s behavior to be “suspicious,” and as a result, he asked to see defendant’s hands. Initially, defendant only raised his left hand into the air and continued positioning his right arm and hand “along his waistband.” He then “started showing his right hand,” while still attempting to use his right forearm to shield the waistband of his pants. Based on his observations of defendant’s behavior, Detective Amato “believed that [defendant] had a weapon on him” and ordered all three occupants of the Grand Marquis to exit the vehicle. Defendant and the two other men complied. As defendant was exiting the vehicle, he “still had his arm over his waistband.” After he completely extricated himself from the car, however, he then immediately “turned around and he bent his entire body over the rear of the car.” In response, Sergeant Karczewski “grabbed [defendant] by his arms and stood him upright.” When he did so, a handgun dislodged from defendant’s waistband and fell to the ground. Detective Amato immediately recovered the gun, which was loaded, and defendant was then placed into custody.
¶ 9 On cross-examination, Detective Amato categorized the area in which the Grand Marquis was parked as “residential.” He could not recall whether there were any vehicles parked immediately in front of or in back of the Grand Marquis when he pulled up next to the vehicle. Detective Amato testified, however, that “we weren’t blocking [the driver] in at that point in time. We were just having a conversation with him.” During the conversation, he inquired whether the driver lived in the area. When the driver responded that he lived down the street, Detective Amato then requested the driver to identify his exact address. It was at that point that the driver admitted he did not live on the street and Detective Amato observed defendant begin slouching in his seat. Although he intended to ask for the occupants’ identifications when he exited his unmarked car, Detective Amato did not recall whether he did so because his focus shifted to defendant slouching and leaning in his seat. At that point in time, he ordered
¶ 10 Following Detective Amato’s testimony, the parties delivered closing arguments. After hearing the aforementioned testimony and the arguments of the parties, the court denied defendant’s motion to suppress. In delivering its ruling, the court found that the encounter between police and the occupants of the Grand Marquis began as a “lawful” field interview, but that defendant’s conduct “raise[d] things into question.” The court explained: “He’s not in the manner in which the other two occupants are. The way his hands were positioned, his arms
positioned, everybody is out of the vehicle he’s bending over. He won’t stand up. Finally he stood up. It wasn’t a search. As [the officers] assisted him in standing up *** the weapon falls. There’s no violation of [the] 4th amendment. *** There was probable cause. It was a proper stop. There was not any type of unlawful detention. Motion to suppress is denied.”
¶ 11 Following the suppression hearing, defendant waived his right to a jury trial, and elected to proceed by way of a bench trial. At trial, the parties stipulated to the testimony that Detective Amato provided during the earlier hearing on defendant’s motion to suppress. The State then called upon him to provide further testimony about the handgun that fell from the waistband of defendant’s pants. Specifically, Detective Amato testified that when he recovered the handgun, he discovered that it was loaded and contained two live rounds. He further testified that after he recovered defendant’s weapon, defendant “spontaneously” explained that he had just discovered the gun in a garbage can and asked the officers to “give [him] a break.” At that point, defendant was advised of his Miranda rights and subsequently transported to the 8th District police station for questioning. After defendant arrived at the police station, Detective Amato and Sergeant Karczewski conversed with him. During that conversation, defendant admitted that he “was holding the gun for S.D.’s from 59th Street.” Detective Amato understood defendant’s reference to “S.D.’s” to mean the street gang known as Satan’s Disciples.
¶ 12 Following Detective Amato’s testimony, the State presented a series of stipulations reached by the parties. Specifically, the parties stipulated that defendant had previously been convicted of robbery and armed robbery. The parties further stipulated that defendant was on parole at the time he was found to be in possession of a firearm on July 3, 2014, and that he had not been issued a Firearm Owner’s Identification (FOID) card. After presenting the aforementioned stipulations, the State rested its case-in-chief. Defendant moved for a directed verdict, but the motion was denied. Defendant elected not to testify and defense counsel rested without calling any witnesses.
¶ 13 After considering the evidence, the circuit court found defendant guilty of armed habitual criminal, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon. During the sentencing hearing that followed, the circuit court heard evidence submitted in aggravation
ANALYSIS
I. Motion to Suppress
¶ 16 Defendant first argues that the circuit court erred in denying his motion to quash his arrest and suppress evidence. He argues that he was the victim of an unlawful seizure because police officers lacked reasonable suspicion that he was engaged in criminal activity at any time during their encounter. Defendant emphasizes that mere possession of a firearm is not a crime and contends that the officers had no reason to believe he was in unlawful possession of a firearm when they pulled up alongside of the vehicle in which he was seated and ordered him to raise his hands into the air and exit the vehicle.
¶ 17 The State responds that the circuit court “properly denied defendant’s motion to quash arrest and suppress evidence because the consensual encounter was elevated to a Terry stop
[Terry v. Ohio, 392 U.S. 1 (1968),] based on reasonable suspicion that defendant was engaged in criminal activity.”
¶ 18 As a general rule, a circuit court’s ruling on a motion to suppress is subject to a bifurcated two-prong standard of review. See Ornelas v. United States, 517 U.S. 690, 699 (1996); People v. Johnson, 237 Ill. 2d 81, 88 (2010). Pursuant to this standard, a reviewing court will afford great deference to the circuit court’s factual findings and will disregard those findings only where they are against the manifest weight of the evidence. Johnson, 237 Ill. 2d at 88; People v. Lopez, 2013 IL App (1st) 111819, ¶ 17. The circuit court’s ultimate legal finding as to whether suppression is warranted, however, is subject to de novo review. People v. Colyar, 2013 IL 111835, ¶ 24; People v. Bartelt, 241 Ill. 2d 217, 226 (2011). Accordingly, “[a] court of review ‘remains free to engage in its own assessment of the facts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted.’ ” People v. Gherna, 203 Ill. 2d 165, 175-76 (2003) (quoting People v. Crane, 195 Ill. 2d 42, 51 (2001)). When conducting this analysis, a reviewing court may consider the evidence presented at trial in addition to the evidence presented during the prior suppression hearing. People v. Almond, 2015 IL 113817, ¶ 55.
¶ 19 The right to be free from unlawful searches and seizures is protected by both the federal and state constitutions.
¶ 20 For purposes of fourth amendment analysis, a person is considered seized when a law enforcement officer, ” ‘ “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” ’ ” Luedemann, 222 Ill. 2d at 550 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991), quoting Terry, 392 U.S. at 19 n.16). More specifically, the relevant inquiry to determine whether an individual seated in a parked vehicle has been seized is whether a reasonable person in the defendant’s position would have believed that he was free to decline the officer’s requests or otherwise terminate the encounter. Luedemann, 222 Ill. 2d at 550-51; Smith, 2016 IL App (3d) 140648, ¶ 29; People v. Bozarth, 2015 IL App (5th) 130147, ¶ 15. Our supreme court has emphasized that this “test presupposes a reasonable innocent person.” (Emphasis in original.) Luedemann, 222 Ill. 2d at 551 (citing Bostick, 501 U.S. at 438).
¶ 21 Relevant factors to consider when determining whether an individual was seized and not involved in a consensual encounter include: (1) the threatening presence of multiple officers; (2) the display of a weapon by an officer; (3) some physical touching of the individual’s person; and (4) the use of language or tone of voice indicating that compliance might be compelled. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J., joined by Rehnquist, J.); Luedemann, 222 Ill. 2d at 553. “In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22. In addition to the four aforementioned Mendenhall factors, other factors that courts have “found indicative of a seizure of a parked vehicle are ‘boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority.’ ” Luedemann, 222 Ill. 2d at 557 (quoting 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 434-35 (4th ed. 2004)).
¶ 22 It is well-established, however, that a seizure does not occur simply because a law enforcement officer approaches and poses questions to an individual as long as that individual is willing to listen. Gherna, 203 Ill. 2d at 178 (citing United States v. Drayton, 536 U.S. 194, 200 (2002)); see also Luedemann, 222 Ill. 2d at 551. Indeed, even where an officer
¶ 23 As a threshold matter, the parties dispute the timing of defendant’s seizure. Defendant submits that he was subjected to an immediate seizure when Detective Amato first pulled up in his unmarked squad car alongside of Junior’s vehicle, which was parallel parked on 52nd Street, and began asking Junior questions. The State, in turn, categorizes the initial encounter as consensual and posits that the encounter was only subsequently elevated to a lawful Terry stop when officers developed reasonable suspicion that criminal activity was afoot based on the totality of the circumstances, including “defendant’s suspicious behavior.”
¶ 24 Our analysis of the relevant factors does not support defendant’s contention that he “was seized at the moment the officers pulled up next to the car.” The record reveals that after Detective Amato observed Junior’s vehicle in a residential neighborhood on three occasions in a 30-40 minute period of time, he pulled his unmarked squad car alongside of the parked vehicle. Although defendant contends that Detective Amato “blocked Junior’s car into his parallel parking spot,” the record does not contain any evidence as to how close Detective Amato’s squad car was to Junior’s car or whether there were other vehicles parked directly in front or in back of Junior’s vehicle. Detective Amato, however, testified that Junior’s car was not blocked in, and the circuit court expressly found that there was “no indication that they c[ould not] leave” the scene based on the positioning of the vehicles. Although defendant is
correct that a police encounter with a citizen in a parked car may be classified as a seizure where a police officer positions his car in a manner that “blocks” the parked car (see Luedemann, 222 Ill. 2d at 559), the record in this case simply establishes that the vehicles were positioned parallel to each other, not that the Grand Marquis was definitively blocked. Given the lack of evidence that the car in which defendant was sitting was boxed in, we cannot agree that defendant was seized from the moment that the officers arrived at the scene. We also reject defendant’s argument that the conversation that ensued between Detective Amato and Junior after the officers pulled alongside of the parked vehicle was indicative of a seizure. The record establishes that after Detective Amato stopped his vehicle alongside Junior’s car, he conversed briefly with Junior while the windows of both vehicles were lowered. Although Detective Amato was accompanied by two other officers at the time, none of the officers brandished weapons or physically touched defendant or any of the other occupants of the vehicles while he spoke to Junior. Moreover, there is no evidence that the tone and tenor of Detective Amato’s voice when he
¶ 25 Indeed, defendant argues that even if the encounter did not constitute a seizure at the outset, it evolved into a seizure when Detective Amato and his partners exited their unmarked squad car and approached Junior’s vehicle while illuminating their flashlights. The State concedes that defendant was ultimately seized,2 but argues that the officers’ conduct was lawful because the totality of the circumstances provided them with reasonable suspicion that criminal activity was afoot, and thus their actions were lawful pursuant to the United States Supreme Court’s landmark decision in Terry, 392 U.S. 1.
¶ 26 At the hearing on defendant’s motion to suppress, Detective Amato testified that the decision to exit the unmarked police car and approach the parked Grand Marquis was made
after Junior acknowledged providing inaccurate information in response to his questions concerning Junior’s address, and after observing defendant’s body language while this conversation occurred. He explained that during the course of his short conversation with Junior, defendant, who was sitting directly behind Junior, began to slouch further and further down in his seat until only his head was visible. After making these observations, Detective Amato and his partners exited their vehicle and approached the parked Grand Marquis with the intention of requesting the occupants’ identification cards. Specifically, Detective Amato and Sergeant Karczewski walked over to the driver’s side of the vehicle while Officer Pacelli relocated to the passenger side of
¶ 27 Immediately after the officers approached the car, however, defendant began leaning way from the officers toward the center of the car and used his forearm to shield his waist from view. At that point, the officers ordered all of the occupants of the Grand Marquis to put their “hands up.” When defendant did so in a manner that allowed him to continue to conceal his waistband, the occupants were then ordered to exit the vehicle. We find that the positioning of the officers around the vehicle, coupled with orders for the vehicle’s occupants to put their hands up and to exit the vehicle, constituted a show of force and authority, which transformed the consensual encounter to a seizure. See, e.g., Gherna, 203 Ill. 2d at 179-80 (finding that occupants of a parked vehicle were seized when two bike officers positioned themselves on either side of a parked car, thereby restraining the movement of the car’s occupants and preventing them from either exiting the vehicle or driving away from the scene, and began putting questions to the occupants); In re Rafeal E., 2014 IL App (1st) 133027, ¶ 21 (finding that the officer’s order to the respondent to ” ‘put his hands up’ ” constituted “a show of authority” indicative of a seizure); Luedemann, 222 Ill. 2d at 557 (recognizing that ” ‘the mere approach and questioning of [persons seated within parked vehicles] does not constitute a seizure. *** [However,] the encounter becomes a seizure if the officer orders the suspect to “freeze” or to get out of the car.’ ” (Emphasis added.) (quoting 4 Wayne R. LaFave, Searches & Seizures § 9.4(a), at 433 (4th ed. 2004))).
¶ 28 This does not end our inquiry, however, as we must next determine whether the seizure was reasonable. Gherna, 203 Ill. 2d at 181 (“[O]nly those seizures which are ‘unreasonable’ violate the fourth amendment.“). In doing so, we necessarily address the State’s argument that the seizure was reasonable under the standards set forth in Terry, 392 U.S. 1. In its Terry decision, the Supreme Court created a limited exception to the requirement that a seizure be supported by probable cause and held that a police officer “may conduct a brief, investigatory stop of a citizen [unsupported by probable cause] when the officer has a reasonable, articulable suspicion of criminal activity and such suspicion amounts to more than a mere ‘hunch.’ ” McDonough, 239 Ill. 2d at 268 (citing Terry, 392 U.S. at 27). In articulating the reasonable suspicion standard, the court struck a balance between the need of law enforcement officials to exercise some flexibility when investigating potential criminal activity and the right of citizens
to be protected against unreasonable police interference in contravention of their fourth amendment rights. Colyar, 2013 IL 111835, ¶ 33 (citing Terry, 392 U.S. at 10-12). Pursuant to the reasonable suspicion standard, “[t]o
¶ 29 Here, we find that based on the totality of the circumstances, Detective Amato and his partners had reasonable suspicion to suspect that criminal activity was afoot at the time they initiated the seizure. At the time the seizure was initiated—when the officers surrounded the Grand Marquis and began issuing orders to the occupants—the officers had made several observations.3 Detective Amato explained that he had initially pulled alongside of the vehicle after he had noticed it in the neighborhood he was patrolling on three occasions during a short 30-40 minute period. The vehicle had been mobile on the first two viewings, but was parked when he saw it for the third time. Upon encountering the vehicle for the third time, Detective Amato pulled up alongside of it and issued several questions to the driver, who was responsive to his questions. Although responsive, the driver admitted that he lied when he stated that he lived “down the street.” During the course of this brief encounter, Detective Amato observed defendant slouch further and further down in his seat until only his head was visible. At that point, the officers exited their unmarked car and approached the Grand Marquis. Upon his approach to the driver’s side of the car, defendant immediately leaned toward the center of the vehicle with his right hand inside his shirt and his right forearm covering his waist. Based on his years of experience as a police officer, Detective Amato found defendant’s continued furtive movements to be suspicious and became concerned with officer safety. Although defendant correctly observes that his “actions did not lead to the inevitable conclusion that he had committed or was committing a crime,” the Terry standard does not require an inevitable conclusion or absolute certainty; rather, it simply requires a reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 27; McDonough, 239 Ill. 2d at 268. In an effort to dispel his suspicions that criminal activity was afoot and in order to ensure officer safety, Detective Amato ordered defendant and the other occupants of the Grand Marquis to raise their hands into the air. When defendant did so
subsequently ordered defendant and the other occupants out of the Grand Marquis. The gun then fell to the ground when defendant exited the vehicle.4
¶ 30 Defendant emphasizes throughout his brief that mere possession of a firearm is not a crime and that the officers lacked reasonable suspicion that his possession of the firearm was unlawful until after the seizure occurred. Although it is true that simple possession of a firearm is not itself a crime, the fact that the officers were not aware of defendant’s status as a convicted felon and parolee or his lack of a FOID card, which ultimately formed the basis for the specific criminal weapons charges filed against him in this matter, is not dispositive because defendant’s furtive behavior and repeated efforts to conceal the weapon provided the officers with reasonable suspicion that defendant was not in lawful possession of the firearm. See Mata, 178 Ill. App. 3d at 160 (“To accept defendant’s argument that the initial detention was invalid because the officer did not yet know the specific crime that had been committed would be directly contrary to the goals of Terry to encourage crime prevention and detection where there is reasonable suspicion that a crime has been committed.“); see also Colyar, 2013 IL 111835, ¶ 49 (rejecting a defendant’s argument that police officers are required to completely eliminate any legal explanation for a defendant’s suspected possession of a firearm and establish that the defendant was committing a weapons offense before investigating further during a Terry stop). Any other result leaves police officers totally at the mercy of the citizens they encounter on a daily basis whose behavior raises concerns that they are armed.
¶ 31 Accordingly, we find that the circuit court did not err in denying defendant’s motion to suppress.
II. Aggravated Unlawful Use of a Weapon Conviction
¶ 33 Defendant next argues that his AUUW conviction must be vacated in light of our supreme court’s decisions in People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL 117387, finding provisions of the state’s prior AUUW statute unconstitutional.
¶ 34 The State agrees that defendant’s AUUW conviction should be vacated but adopts a different rationale to support this result. Specifically, the State submits that defendant’s convictions for AUUW and AHC are based on the same physical act—his possession of a loaded firearm—and thus violate the one-act, one-crime rule. Given that AUUW is the less serious offense, the State agrees that defendant’s AUUW conviction should be vacated.
¶ 35 Because reviewing courts are duty-bound to avoid the adjudication of constitutional questions if an issue can be resolved on nonconstitutional grounds, we first address the State’s one-act, one-crime argument. See In re E.H., 224 Ill. 2d 172, 178 (2006) (“cases should be decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a last resort“). Pursuant to the one-act, one-crime rule, a defendant may not be convicted of more than one offense arising out of the same criminal act. People v. King, 66 Ill. 2d 551, 559-66 (1977); see also Almond, 2015 IL 113817, ¶ 47. For purposes of the one-act, one-crime rule, an “act” is “any overt or outward manifestation which will support a different offense.” King, 66 Ill. 2d at 566.
¶ 36 The AHC and AUUW statutes both criminalize a defendant’s unlawful possession of a firearm. See, e.g.,
III. Monetary Assessments
¶ 38 Defendant next challenges the circuit court’s order imposing various fines, fees, and costs. He first argues, and the State agrees, that he was improperly assessed a $5 electronic citation fee (
challenges concerning the propriety of his monetary assessments, we will address the merit of his claims. Brown, 2017 IL App (1st) 142877, ¶ 70. The propriety of a fines and fees order is subject to de novo review. People v. Bowen, 2015 IL App (1st) 132046, ¶ 60; People v. Price, 375 Ill. App. 3d 684, 697 (2007).
¶ 40 Defendant first argues that the circuit court erred in assessing a $5 electronic citation fee pursuant to section 27.3e of the Clerks of Courts Act (
¶ 41 We also find that the $5 court system fee was similarly improperly assessed. Like the aforementioned electronic citation fee (
¶ 42 We also agree with the parties that the $100 streetgang fine was improperly levied against defendant. That fine, set forth in section 5-9-1.19 of the Unified Code of Corrections, provides: “In addition to any other penalty imposed, a fine of $100 shall be imposed upon a person convicted of any violation of the Criminal Code of 1961 or the Criminal Code of 2012 who was, at the time of the commission of the violation a streetgang member, as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act.”
¶ 43 Defendant next argues that he is entitled to offset the fines imposed against him with his statutorily granted presentence incarceration credit.
¶ 44 Section 110-14(a) of the Code of Criminal Procedure of 1963 provides: “Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. However, in no case
shall the amount so allowed or credited exceed the amount of the fine.” (Emphases added.)
¶ 45 In this case, defendant argues and the State agrees that the $10 mental health court assessment (
¶ 46 In conclusion, we find that defendant was erroneously assessed the aforementioned $5 electronic citation fee, the $5 court system fee, and the $100 streetgang fine. We further find that the $10 mental health court assessment, the $5 youth diversion/peer court assessment, the $5 drug court assessment, the $30 Children’s Advocacy Center assessment, the $15 State Police Operations assessment, and the $50 court system assessment may be offset by defendant’s available presentence incarceration credit. We remand to the circuit court with
instructions to modify the fines, fees, and costs order in accordance with this disposition.
CONCLUSION
¶ 48 For the reasons explained above, we affirm defendant’s armed habitual criminal and unlawful use of a weapon by a felon convictions; however, we vacate his aggravated unlawful use of a weapon conviction. We remand the matter to the circuit court for the limited purpose of modifying the fines, fees, and costs order.
¶ 49 Affirmed in part, vacated in part, and remanded in part.
¶ 50 JUSTICE HYMAN, concurring in part and dissenting in part:
¶ 51 I agree with my colleagues that Gomez’s AUUW conviction should be vacated under the one-act, one-crime doctrine, and the fines and fees remanded for modification. But I disagree with the majority’s conclusion that Gomez and his friends were not seized until the police ordered them out of the car. That seizure actually occurred when the police got out of their own unmarked car and approached Junior’s car, despite the absence of specific, articulable facts that could give rise to reasonable suspicion of criminal activity.
¶ 52 The majority uses the correct standard as to whether a seizure has occurred: would a reasonable person have believed that he or she was free to leave or otherwise terminate the encounter? People v. Luedemann, 222 Ill. 2d 530, 551 (2006) (citing Florida v. Bostick, 501 U.S. 429, 438 (1991)).
¶ 53 The United States Supreme Court compiled a list of several factors that might indicate a seizure (though this is not an exhaustive list): (i) the threatening presence of several officers, (ii) a display of weapons, (iii) physical touching, or (iv) use of language or voice indicating that compliance is required. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J., joined by Rehnquist, J.). These factors were adopted by Illinois Supreme Court in People v. Murray, 137 Ill. 2d 382, 390 (1990). Several times, our supreme court has applied these factors in the context of police officers communicating with individuals who are
¶ 54 Cosby rather weakly distinguished Gherna because there was no additional evidence, other than the officers’ positions, that the officers were attempting to “box in” the vehicle. Cosby, 231 Ill. 2d at 279-80. The weakness of this distinction is emphasized by the police officers’ mode of transport: in Cosby, the two officers approached on foot, while the Gherna officers were riding bicycles. There is no logical argument that two bicycles are a better method of “boxing in” a vehicle than two officers on foot.
¶ 55 The majority states that the record “does not contain any evidence” as to whether any other vehicles were parked behind or in front of Junior’s car. This is incorrect. Baez testified that Junior had parallel-parked his car, so when Detective Amato parked his car alongside Junior’s, Junior could not drive away. While Detective Amato testified that he did not block Junior’s car, he did not remember whether other cars were parked immediately in front of or behind
Junior’s car. The trial court did not make any specific finding on this point, but merely stated that “the officer approached the vehicle in their vehicle parallel” (which is not in dispute) and “there’s no indication that they can’t leave” (which does not address the discrepancy between Baez’s testimony and Amato’s failure to recollect this detail). But we are to defer to factual findings, though this isn’t much of a finding.
¶ 56 Even if we defer to the trial court’s finding that Junior’s car was not boxed in, that car was seized earlier than the majority concludes. Three officers approached Junior’s car, on foot. Amato and Karczewski went to the driver’s side, and Pacelli went to the passenger’s side. This is a more effective “boxing in” than occurred in either Gherna or Cosby. The majority rejects the notion that using flashlights transformed the encounter into a seizure, but the flashlights were not necessary to make that transformation. The presence of three officers asking questions was sufficient enough that a “reasonable person” would not have felt free to drive away or terminate the encounter, particularly if moving the car even a few feet might have struck one of the officers. (And given recent unfortunate encounters between motorists and approaching police officers, even an unreasonable motorist might think that he or she does not have the freedom to end even a consensual encounter with police.)
¶ 57 The next question is whether Detective Amato had reasonable suspicion, at this point, to justify conducting the Terry stop. He testified that at the time he decided to get out of the car, his suspicion was based on three facts: (i) he had seen the vehicle driving around the neighborhood on two occasions earlier that evening; (ii) the driver (Junior) initially said that he lived “down the street” but then backtracked and said he lived on the other side of Pulaski; and (iii) he saw Gomez slouching down in the back seat.
¶ 58 The first of these is an utterly ludicrous basis for reasonable suspicion. Merely driving around a neighborhood
¶ 59 The second basis, although not ludicrous, also is insufficient in itself to suspect criminal activity. If this was in fact a “consensual encounter” (as the majority states that it was, at this point), then lying about, or being insufficiently clear about, one’s address is not a crime. It could indicate criminal activity, but just as likely, it could indicate that a person had recently moved, was staying with friends, or was homeless. The same applies to the third point, Gomez’s “slouching.” One’s posture is not an indication of criminal activity; nor, for that matter, is visible discomfort with police contact. Even if this police encounter was initially “consensual,” no one in this situation thought that Amato had pulled up alongside Junior to have a friendly chat about the weather.
¶ 60 I believe the conclusion that the totality of the facts justifies the stop places undue confidence on Amato’s foresight and relies on after-the-fact knowledge of the outcome, wrongly allowing hindsight to determine the lawfulness of the stop. I would hold that the motion to suppress should have been granted.