People v. Gomez

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

Illinois Official Reports Appellate Court

Decision Under Review 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. Counsel on Appeal 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. Panel 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.

OPINION

¶ 1 Following a bench trial, defendant Eduardo Gomez was convicted of being an armed habitual criminal (AHC) (720 ILCS 5/24-1.7 (a) (West 2014)), of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6 (West 2014)), and of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2014)). He was sentenced to three concurrent terms of seven years' imprisonment and assessed various fines, fees, and costs. On appeal, defendant argues that (1) the circuit court erred in denying his pretrial motion to suppress, (2) his aggravated unlawful use of a weapon conviction should be vacated, and (3) the fines, fees, and costs imposed by the circuit court should be reduced. For the reasons set forth herein, we affirm defendant's convictions for the offenses of armed habitual criminal and unlawful use of a weapon by a felon; however, we vacate his aggravated unlawful use of a weapon conviction. In addition, we remand the matter to the circuit court with instructions to modify its order assessing fines, fees, and costs.

¶ 2 BACKGROUND

¶ 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." 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 "cop car," containing three plain-clothes officers, pulled up alongside of them. The officers "flashed their lights" on the men, drew their weapons, and ordered Baez, Junior, and defendant to raise their hands and exit the vehicle. The three men complied. Baez testified that after he and defendant exited the vehicle, they placed their hands on opposite sides of the trunk. The officers then began searching them. As they were doing so, the officers heard a noise. Baez explained: "As they were searching us I guess they had like heard the noise of the firearm I guess fell on the floor and that's when they had right away put the flashlight all over [and] under the car and 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 and mitigation and ultimately sentenced defendant to three concurrent terms of seven years' imprisonment. The court also assessed a number of fines, fees, and costs. Defendant's posttrial motion was denied and this appeal followed.

Although Baez describes the vehicle as a taxi car, it is not clear whether or not the vehicle bore any signs or markings indicating that it was used as a taxi. As will be shown below, the detective who encountered the vehicle simply described it as a white Mercury Grand Marquis.

¶ 14 ANALYSIS ¶ 15 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 subsequently ordered defendant and the other occupants out of the Grand Marquis. The gun then fell to the ground when defendant exited the vehicle. ¶ 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.

Although the State acknowledges that defendant was seized, the State's brief is not entirely clear about the exact timing of the seizure.

The record rebuts defendant's argument that he was seized "solely because [the officers] suspected he possessed a firearm." As such, we need not consider his argument concerning the propriety of a hypothetical Terry stop predicated solely on an officer's suspicion that a defendant was in possession of a firearm.

Defendant concedes that there was no search; rather, "the officers did not get to search [him] *** because the gun fell out of his pants as soon as one officer stood him up."

¶ 32 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 the possession of firearm. See, e.g., 720 ILCS 5/24-1.7(a)(1) (West 2014) ("A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of *** a forcible felony [such as robbery and armed robbery.]" (Emphasis added.)); 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2014) ("A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly: (1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm *** and *** the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible at the time of the offense[.]" (Emphasis added.)). Here, defendant's convictions for AHC and AUUW are both premised on his possession of a single loaded firearm, and as such violate the one-act, one-crime rule. See, e.g., People v. West, 2017 IL App (1st) 143632, ¶ 25 (finding that the defendant's AUUW and AHC convictions violated the one-act, one-crime rule because both convictions were based on the defendant's possession of a single loaded handgun). Where, as here, a one-act, one-crime violation is found, the proper remedy is to vacate the less serious offense. In re Samantha V., 234 Ill. 2d 359, 379 (2009). AHC is a Class X felony (720 ILCS 5/24-1.7(b) (West 2014)), whereas defendant's AUUW conviction is a Class 2 felony (720 ILCS 5/24-1.6(d)(3) (West 2014)). Because defendant's AUUW conviction is the less serious offense, we vacate that conviction. See West, 2017 IL App (1st) 143632, ¶ 25. In light of this ruling, we need not consider defendant's constitutional challenge to the Illinois AUUW statute. See In re E.H., 224 Ill. 2d at 178.

Defendant correctly observes that his unlawful use of a weapon by a felon (UUW) conviction was based on his possession of firearm ammunition, a separate act, and thus his convictions for AHC and UUW do not run afoul of the one-act, one-crime rule. See Almond, 2015 IL 113817, ¶ 48 (finding that the defendant's AHC and UUW convictions did not violate the one-act, one-crime rule because his AHC conviction was premised on his possession of a firearm whereas his UUW conviction was based on his possession of a firearm ammunition, explaining: "[T]he act of possession of a firearm is materially different from the act of possession of firearm ammunition, even if both items are possessed simultaneously.").

¶ 37 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 (705 ILCS 105/27.3e (West 2014)), a $5 court system fee (55 ILCS 5/5-1101(a) (West 2014)), and a $100 streetgang fine (730 ILCS 5/5-9-1.19 (West 2014)). We will address the propriety of each of the monetary assessments in turn. ¶ 39 As a threshold matter, we note that defendant failed to challenge the propriety of his assessments in the circuit court. Generally, a defendant's failure to challenge a sentencing issue in the circuit court through a contemporaneous objection and a postsentencing motion results in forfeiture of the claim on appeal. People v. Brown, 2017 IL App (1st) 142877, ¶ 70; People v. Reed, 2016 IL App (1st) 140498, ¶ 13. The rules of forfeiture, however, are likewise applicable to the State. Brown, 2017 IL App (1st) 142877, ¶ 70; Reed, 2016 IL App (1st) 140498, ¶ 13. Given that the State has not raised any argument that defendant has forfeited his 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 (705 ILCS 105/27.3e (West 2014)) because he was not convicted of the specific offenses delineated in the statute. The State agrees that this fee was assessed in error and should be vacated. Section 27.3e of the Clerks of Courts Act provides for the payment of a $5 electronic citation fee by defendants "in any traffic, misdemeanor, municipal ordinance, or conservation case." 705 ILCS 105/27.3e (West 2014). Defendant was not found guilty of any of the specific type of qualifying offenses enumerated in section 27.3e of the Clerks of Courts Act. Accordingly, we direct the circuit court to vacate the $5 electronic citation fee. ¶ 41 We also find that the $5 court system fee was similarly improperly assessed. Like the aforementioned electronic citation fee (705 ILCS 105/27.3e (West 2014)), the court system fee may only be imposed under certain circumstances. Specifically, section 5-1101(a) of the Counties Code authorizes the fee when a defendant is convicted of violating the Illinois Vehicle Code or other similar municipal ordinance (55 ILCS 5/5-1101(a) (West 2014)). Because defendant was convicted of a criminal offense in contravention of the Criminal Code of 2012, the fee is inapplicable and we order it to be vacated. See, e.g., People v. Akins, 2014 IL App (1st) 093418-B, ¶ 22 (vacating the $5 court system fee where the defendant was convicted of AUUW, a violation of the Criminal Code, and not a violation of the Illinois Vehicle Code or other similar municipal ordinance). ¶ 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." 730 ILCS 5/5-9-1.19 (West 2014).

Because the record contains no evidence that defendant was a streetgang member at the time of the offense, the imposition of the $100 streetgang fine was improper. See, e.g., People v. Smith, 2015 IL App (1st) 132176, ¶ 34 (finding that the fine was improperly assessed where there was no evidence that the defendant was a member of a gang at the time he committed the offense). We thus order the circuit court to vacate this fine. ¶ 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.) 725 ILCS 5/110-14(a) (West 2014).

Pursuant to the plain language of the statute, however, a defendant's presentence incarceration credit may only be applied to fines, not fees. 725 ILCS 5/110-14(a) (West 2014); People v. Johnson, 2011 IL 111817, ¶ 8. A charge is considered a "fee" where it assessed in order to " 'recoup expenses incurred by the state,' or to compensate the state for some expenditure incurred in prosecuting the defendant." People v. Graves, 235 Ill. 2d 244, 250 (2009) (quoting People v. Jones, 223 Ill. 2d 569, 582 (2006)). A "fine," in contrast, is " ' "punitive in nature" ' and is ' "a pecuniary punishment imposed as part of a sentence on a person convicted of a criminal offense." ' " Graves, 235 Ill. 2d at 250 (quoting Jones, 223 Ill. 2d at 581). The label utilized by the legislature to describe the charge is not dispositive (Jones, 223 Ill. 2d at 583; Brown, 2017 IL App (1st) 142877, ¶ 73); rather, to determine the true nature of the charge, the "most important factor" to consider is "whether the charge seeks to compensate the state for any costs incurred as a result of prosecuting the defendant" (Graves, 235 Ill. 2d at 250). ¶ 45 In this case, defendant argues and the State agrees that the $10 mental health court assessment (55 ILCS 5/5-1101(d-5) (West 2014)), the $5 youth diversion/peer court assessment (55 ILCS 5/5-1101(e) (West 2014)), the $5 drug court assessment (55 ILCS 5/5-1101(f) (West 2014)), the $30 Children's Advocacy Center assessment (55 ILCS 5/5-1101(f-5) (West 2014)), the $15 State and Conservation Police operations (State Police Operations) assessment (705 ILCS 105/27.3a (West 2014)), and the $50 court system assessment (55 ILCS 5/5-1101(c) (West 2014)) are all fines subject to offset with presentence incarceration credit because they are all punitive in nature and not designed to compensate the State for expenses incurred in defendant's prosecution. We agree with the parties. Reviewing courts have construed the aforementioned assessments as fines rather than fees, which are subject to offset with presentence incarceration credit. See, e.g., Price, 375 Ill. App. 3d at 701 (concluding that the mental health court and youth diversion/peer court assessments were fines rather than fees); People v. Unander, 404 Ill. App. 3d 884, 891 (2010) (holding that the $5 drug court assessment was a fine subject to offset with presentence incarceration credit); People v. Jones, 397 Ill. App. 3d 651, 660 (2009) (concluding that the $30 Children's Advocacy Center charge was a fine, not a fee); People v. Maxey, 2016 IL App (1st) 130698, ¶¶ 140-41 (finding that the $15 State Police Operations assessment was a fine subject to offset), vacated by No. 121137 (Ill. Nov. 22, 2017) (supervisory order); Reed, 2016 IL App (1st) 140498, ¶ 15 (construing the $50 court system assessment as a fine subject to offset). ¶ 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.

Defendant was arrested on July 3, 2014, and sentenced on January 28, 2015. He was thus incarcerated on a bailable offense for 209 days prior to being sentenced. We note that defendant correctly identifies the number of days in which was in custody prior to sentencing. The State's brief, however, erroneously states that defendant "was incarcerated on a bailable offense for 608 days before sentencing." --------

¶ 47 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 inside a parked car. In People v. Gherna, the court held that two police officers on bicycles, one by the driver's door and one by the passenger's door, had "seized" the car by their positioning and their questioning about possible underage drinking. 203 Ill. 2d 165, 179-81 (2003). But in People v. Cosby, the court came to a different conclusion, holding that two officers, one on each side of the vehicle, did not seize it. 231 Ill. 2d 262, 278 (2008). ¶ 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 16 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 over the course of an evening does not indicate or suggest criminal activity. If this was so, every car used by a neighborhood resident to run a couple of errands could be viewed by police as a predictor of criminal activity. ¶ 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.