Whether a stop arises during a regular patrol or from an alert over radio dispatch, it must be supported by “specific and articulable facts” that, along with rational inferences, “reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 19-20 (1968).

In the two cases discussed here, the courts ultimately found that the stops were not properly supported by the reasonable suspicion required from Terry. Both stops included environmental influences – one involved running on a rainy day while holding a bulky object inside a hoodie and the other sweating on a hot day in the vicinity of a recent crime. As invalid stops, all resulting evidence obtained was barred from admission, which resulted in a reversal of convictions.

In both cases, the important focus is that reasonable suspicion is based on the information available and perceived at the time of the stop. Continue reading for summary of the two cases and key takeaways.

People v. Lozano, 2023 IL 128609 (opinion filed Sep. 21, 2023)

In this case, the Supreme Court of Illinois (the “Court”) considered “whether a person’s act of running in the rain while holding the front of his pocket provided police officers with a reasonable suspicion of criminal activity to justify an investigatory stop consistent with the fourth amendment.” Id. at ¶ 1. While the trial and appellate courts’ ruled in the affirmative, the Supreme court reversed and found a lack of reasonable suspicion. Id.

The Stop

The facts of the case start with the defendant, Francisco Lozano (“Lozano”), who was arrested and charged with burglary and possession of burglary tools on February 20, 2018. Lozano then moved to suppress certain evidence recovered during his arrest. He argued that, at the time of the stop and search, there were no circumstances to support a reasonable suspicion he had committed or was about to commit any crime.

There were two officers involved in the arrest, Officer Rodriguez and Officer Soto. Officer Rodriguez testified he and his partner were patrolling in an unmarked car on a rainy day when they saw Rodriguez “running at a fast rate of speed” and “appeared to be holding his front pocket.” Id. at ¶ 5 – 6. 

Officer Rodriguez made a U-turn with the intent of stopping Lozano, who proceeded to run into an abandoned building. Officer Rodriguez pursued Lozano and ordered him to stop. The officer confirmed his intent was to “conduct a field interview” and determine why Lozano was running and “to see what was the bulge.” Id. at ¶ 8. Officer Rodriguez handcuffed Lozano and felt a rectangular box form outside of his hoodie. At that time, Officer Rodriguez reached inside Lozano’s front hoodie pocket and recovered a wallet, two screwdrivers, and a radio.

Officer Soto’s body camera captured the encounter, and the video evidence was admitted to the trial court. The video first showed Lozano at the base of an apartment building’s stairs, facing Officer Rodriguez. Officer Rodriguez detained Lozano and asked him questions about what he was doing in the area and what was in his pockets. Officer Soto also asked Lozano why his hands were bleeding, but the response was not clearly captured in the video.

Officer Soto testified that, when she examined the contents of the wallet, she found student identification for a nearby high school. She then went to the school and spoke to the student. The student testified that she had driven to school on February 20, 2018, that she had left her wallet and purse in the car, that the wallet recovered from Lozano belonged to her, and that on the day of the arrest, her car had been broken into and her radio was missing.

Lozano was convicted of burglary and possession of burglary tools based on the above.

The Lower Court Findings

The trial court found Officer Rodriguez’s stop was reasonable because Lozano “attract[ed] his attention [by] running with some kind of bulge in his pants” and that, at one point when Lozano refused to show his hands in addition to the bulge, the officers could reasonably detain him under the suspicion he had a gun. The motion to suppress was denied by the trial court.

Lozano appealed and, through three separate opinions, the appellate court affirmed the conviction and sentences. The lead opinion found reasonable suspicion to conduct a Terry stop based on Rodriguez’s observations of the defendant “running on a rainy day in February, alone, with his hands either in or holding the front pocket of his sweatshirt.” Id. at ¶ 22. This, plus Lozano’s attempt to run into an abandoned building when the unmarked car made a U-turn back towards him, qualified as “strange behavior” that supported a reasonable suspicion for a Terry stop. Id.

Supreme Court Reversal

At the Supreme Court level, the Court focused on Lozano’s allegation that the stop was an unlawful search and seizure.

Applying Terry v. Ohio, the officer must point to “specific and articulable facts” that, taken together with rational inferences, “reasonably warrant that intrusion.” 392 U.S. 1, 19-20 (1968). For a lawful investigatory stop, the officer must “reasonably suspect that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). The facts are not viewed with hindsight, but from “the perspective of a reasonable officer at the time that the situation confronted him.” People v. Scott, 148 Ill.2d 479, 503 (1992). To move from a stop to a frisk, the “police officer must reasonably suspect that the person stopped is armed and dangerous.” Johnson, 555 U.S. at 326-27.

The Moment of “Seizure”

Here, the moment of “seizure” was when Rodriguez confronted Lozano and ordered him down from the apartment building’s stairs. People v. Thomas, 198 Ill.2d 103, 111 (2001) (noting a seizure under the Fourth Amendment is when, under the circumstances, a person would believe they were not free to leave). The Court assessed if Officer Rodriguez had a reasonable suspicion at that moment.

The Court stated the facts available when the seizure occurred were: (1) it was raining; (2) defendant was running and holding his sweatshirt as he ran; (3) he tried to run up the apartment stairs when he saw the officers; and (4) there was a large bulge in the front of his sweatshirt. While there are factors that would have created reasonable suspicion (ex: presence in a high crime area; time of day; if there was unprovoked flight; if the behavior was consistent with the officer’s knowledge of criminal activity), the Court found none of those factors were present here to justify a Terry stop.

The officers were on routine patrol, neither testifying officer stated the area was a high-crime area, and the stop was in the middle of the afternoon. Lozano was also not in “flight” from the officers because he had already been running when they saw him and continued to run when he saw the officers. Based on this, the Court found the officers did not have a reasonable suspicion that Lozano had either committed or was about to commit a crime and ruled the Terry stop was unlawful.

The Stop Did Not Warrant a Frisk

The Court further held the frisk was unlawful because the officers did not have reasonable suspicion that defendant was armed and dangerous. A frisk adjacent to an investigatory stop is limited to “what is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry, 392 U.S. at 26.

Lozano was handcuffed when the frisk occurred and had not resisted before that. Nothing in the testimony demonstrated Officer Rodriguez or Officer Soto believed Lozano was presently dangerous at the time of the frisk.

Fruit of the Poisonous Tree

When constitutional rights are violated during a search or seizure, that violation is a “poisonous tree.” People v. Winsett, 153 Ill. 2d 335, 351 (1992). Evidence that stems from that violation is deemed “fruit” from the tree and must be suppressed. Evidence obtained “through a chain of causation that started with an illegal seizure is not per se inadmissible.” People v. Henderson, 2013 IL 114040 ¶ 34. The chain of causation must be analyzed to determine if the evidence and illegal conduct became so attenuated or interrupted by intervening circumstances that the original illegality “poison” is removed.

In this case, the improper search and seizure was done in quick succession and there were no intervening circumstances to remove the “poisonous tree” effect. Thus, all evidence obtained from the search and seizure was subject to suppression. This included recovery of the wallet, which led to the testimony of the victim regarding her car and the break-in. Without that evidence, the State could not prove its case. The Court reversed Lozano’s convictions outright.

People v. Maxfield, 2023 IL App (1st) 151965-B

The First District Appellate Court of Illinois, which hears cases appealed from trial courts in Cook County, reversed the trial court’s decision regarding a motion to quash certain evidence in a criminal case. The defendant sought to quash evidence of identification and items found in a custodial search based on an improper Terry stop.

The investigatory stop was made by a plain-clothes police officer who saw the defendant, Kory Maxfield, walking in an alley a few blocks from where radio dispatch had reported criminal activity. It was a warm May evening and Maxfield appeared sweaty. The officer detained Maxfield and took him to a “showup,” where a robbery victim identified him as one of the perpetrators.

The trial court initially denied the motion to quash evidence and found the arresting officer made a proper investigatory stop. However, in this appeal, the decision was reversed and the criminal convictions for armed robbery and unlawful use of a weapon was vacated and remanded for a new trial.

The court deemed the facts were insufficient to support a stop under Terry v. Ohio because the officer did not have a reasonable, articulable suspicion to stop an individual who happened to be in the general area of a crime. 392 U.S. 1 (1968). When a search and/or seizure violates the Fourth Amendment, any evidence that results is suppressed as “fruit of the poisonous tree.” Here, the search came after the invalid Terry stop, and the Appellate Court ruled that this evidence would have to be suppressed at trial.

Factual Summary

Around 10:00 PM on May 2, 2012, the two victims, Coleman and Cabrera, were approached by two armed men who demanded money. The two men stole jewelry, cash, and a cell phone before fleeing in a white van. Coleman and Cabrera proceeded to follow the van and flagged down a police car. Officer Stratzante and his partner soon found a white van stalled in traffic, which attempted to pull away when the officers moved to stop the van. One of the perpetrators pointed a gun at the officers, who responded with eight shots fired into the van. The officers turned the corner and saw the van abandoned.

Officer Stratzante then recovered a gun from the van and stayed at the scene to await evidence technicians. He testified that he did not have a physical description of the perpetrators, nor did he see their faces.

Radio transmissions captured an officer reporting “shots fired by the police.” The dispatcher asked for a physical description, but no description was shared.

Shortly before 10:25 PM, a second officer, Officer Rubald, had heard the report of shots fired and was on patrol in an unmarked car when he saw Maxfield walking out of an alley a few blocks from where other officers had confronted the van. Officer Rubald stated Maxfield was sweating at the time of his stop.

The officer patted Maxfield down for weapons, handcuffed him, and took him to a showup where Coleman identified Maxfield as one of the two perpetrators. After the identification, Officer Rubald searched Maxfield and found $230.00 cash and jewelry.

Officer Rubald testified that the radio message informed him the offenders were fleeing on foot eastbound down Indiana Avenue, which was where Officer Rubald was when he saw Maxfield.

Maxfield was convicted of two counts of armed robbery and six counts of aggravated unlawful use of a weapon.

The Appeal

On appeal, the court analyzed whether Officer Rubald’s stop was proper under the Terry v. Ohio standard. If an investigatory stop is improper, evidence attached to it can be suppressed as an illegal search and seizure under the Fourth Amendment.

A Terry stop permits an officer to conduct a brief investigatory stop when they have a “reasonable, articulable suspicion of criminal activity” that must be more than a mere “hunch.” People v. Gherna, 203 Ill.2d 165, 177 (2003). “Reasonable suspicion” requires less than “probable cause,” but an officer should have “at least a minimal level of objective justification for making the stop” to avoid a Fourth Amendment violation. Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

The essential element of forming a reasonable, articulable suspicion is that is must be supported by adequate facts “at its inception.” People v. Thomas, 198 Ill.2d 103, 109 (2001).

Maxfield argued that Officer Rubald’s stop was based on a “hunch” because he was not engaged in suspicious behavior and, at the time of the stop, the officer did not have any physical or clothing description to justify the stop.

The State argued that Officer Rubald’s suspicion was supported because he knew that two Black men committed a robbery in the area, shots had been fired, the suspects fled from the van where the stolen items were recovered from, Maxfield was the only person in the general area where the suspects had fled, and Maxfield was sweating and out of breath.

The Appellate Court’s Analysis

However, the Appellate Court found the evidence didn’t match up to the State’s contentions because Officer Rubald did not know all of that information at the time of the stop. At most, Officer Rubald knew that two men had been involved in an armed robbery, shots had been fired, and the suspects had fled on foot. No further description was shared through dispatch.

Officer Rubald also testified that his primary reason for stopping Maxfield was that he was sweating. However, it was 71 degrees with 71% humidity in May. “Sweating, even profusely, alone is not enough to support reasonable suspicion considering common knowledge that sweating can be caused by several factors.” Maxfield, 2023 IL App (1st) 151965-B, ¶ 33.

A second theory, the “collective knowledge doctrine” was also considered. People v. Ewing, 377 Ill.App.3d 585 (2007). That doctrine essentially combines the knowledge of officers acting in concert to determine if the detaining officer had reasonable suspicion for the stop. This can assist when an officer makes a stop based on a radio dispatch and considers if the other officer had sufficient facts to establish probable cause to make the arrest.

However, based on the facts above, there was not enough factual support to apply “collective knowledge” to Officer Rubald’s stop.

Key Takeaways

• When conducting a Terry stop, the reasonable suspicion must be based on facts known to the detaining officer at the time of the stop. Information learned later, even if it supports the arrest, does not retroactively justify a Terry
• Environmental factors may or may not factor into forming a reasonable suspicion. Running in the rain is likely to be less inherently suspicious than running on a clear, sunny day.
• Information over radio dispatch can assist officers in the area to form reasonable suspicion, but, even for “collective knowledge,” that information must be broadcast.
• If a Terry stop is improper, anything that stems from it – like a search or identification at the station – can be suppressed as improper “fruit” of the illegal stop.
• Mere presence near a crime, even in a high-crime area, is insufficient to support reasonable suspicion.
• Acting “suspiciously” or “strangely,” on its own, cannot support establishing reasonable suspicion.
• Justifying an investigatory stop must be objectively reasonable based on the totality of the circumstances.
• A search requires its own separate reasonable suspicion, independent of the stop itself, that specifically relates to a specific, articulable, reasonable suspicion the defendant was armed and dangerous.
• Even then, the search is limited to what is necessary to confirm or deny that suspicion only.
• If there are no intervening circumstances, any evidence in the chain of causation starting with the constitutional violation must also be suppressed.

Authored by: