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People v. Torres3/19/2004
UNPUBLISHED
Following a stipulated bench trial, the defendant, Jose Torres, was found guilty of two counts of aggravated unlawful use of a weapon and sentenced to serve 18 months' probation. On appeal, Torres argues that the trial court should be reversed because: (1) it erred when it denied his motion to suppress evidence because the arresting officers had no legal justification to remove him from his vehicle, pat him down, demand his identification and conduct a name check and (2) the aggravated unlawful use of a weapon statute is unconstitutional and violates due process because it does not require a culpable mental state. For the reasons that follow, we reverse the decision of the trial court.
BACKGROUND
Torres was charged by information with two counts of aggravated unlawful use of a weapon (UUW) under section 24-1.6(a) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(West 2002)). Prior to trial, Torres filed a pretrial motion to suppress evidence. In the motion, Torres claimed that the arresting officers lacked the requisite probable cause to effectuate his arrest and requested that the trial court find that his arrest was illegal and subsequently suppress the evidence. The trial court held an evidentiary hearing on the motion.
At the hearing, Officer Joe Kurpiel testified on direct examination that he and his partner were in the area of 4243 West Lawrence Avenue, in Chicago, Illinois on February 6, 2002, at approximately 10:10 p.m. At that time, the officers were in a police vehicle and conducting a routine patrol.
As they were driving, Kurpiel testified that he saw a parked truck in a Clark gas station. In the vehicle, he saw what he characterized as a domestic altercation taking place between Torres and a woman. Kurpiel indicated that it appeared that Torres and the woman were having more than just a conversation. Kurpiel explained that he saw "hands flying" and the female "looking very submissive." When shown a copy of the police report that he made, Kurpiel testified that this information did not appear in the report.
After he and his partner approached the parked truck, Kurpiel testified that he spoke to the female passenger and his partner spoke to Torres, who was in the driver's seat. Kurpiel said that he asked the female if "everything was okay" and that she said "yes." Kurpiel said that she informed him that Torres was her boyfriend and that the two were having an argument because he had been seeing another woman. She explained that the two were trying to work things out.
Kurpiel said that he never saw Torres strike the female or do anything of that nature. Furthermore, Kurpiel testified that Torres never committed a crime in his presence. However, at this time, the two officers did not leave. By now, Kurpiel's partner had Torres out of the vehicle and was asking Kurpiel to run a name check on him. When Kurpiel ran the name check on Torres, it revealed that Torres had a warrant for driving under the influence (DUI).
The officers then placed Torres under arrest and conducted a search of his person and his vehicle. Their search revealed a gun magazine in Torres' pocket and a fully loaded and cocked handgun, which was in the console of the vehicle.
On redirect, Kurpiel testified that at the time that he asked the female passenger if everything was okay, his partner had already removed Torres from the vehicle and patted him down. He stated that this was done so that she could speak more freely to the officers. Additionally, Kurpiel said that he did not inform his partner that she had already told him that everything was all right until after he had run the name check on Torres. Ku
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