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Criminal Nuggets

Jan 30, 2015

Illegal search and seizure results after a cop pulls a gun on a lady. If the officer had a reason to be so aggressive, he certainly did not articulate it for the record. In a hearing on a defense motion to suppress, failure of the officer to articulate his reasons usually means they are going to lose the motion.

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See People v. Bozarth, 2015 IL App (5th) 130147 (01/26/2015).


So The defendant was challenging the basis for her seizure by the police. At the trial level, she filed a motion to quash and suppress evidence that was denied.

She was charged and found guilty of DUI.

She was challenging the stop.


This is what we know from the hearing.

Trooper is on duty at 1:22 am in a rural and quiet area. There is only one car on the road. Yup, the Defendant.

Cop is in an unmarked squad car. He turns around and follows Defendant where he says he was “looking for violations.” ¶ 3.

Sees none.

Then the car appears to turn into a long private driveway but then disappears. The lights go off, and it is unclear where the car went.

So cop pulls into the driveway and notices that the car is parked alongside a barn way before the residence. Naturally, he pulls up behind the car about a car and half length away.

The officer then approaches the driver with his flashlight and gun drawn.

Then this is what happened:

  • Driver rolls down window
  • Says Property Not Hers
  • Cop Smells Alcohol

At this point, the officer removes the driver from her car for field sobriety tests.

What Suspicions Did The Officer Have?

The trooper testified that when he first saw the car he “had no real suspicion at that time.” ¶ 6. But, you never might what happen. Am I right?

What About the Whole Turning Into the DriveWay Thing?

The trooper was asked directly what suspicions he had when he saw the driver turn into the driveway. This is what he said:

“... It was an awkward way to just pull off in a driveway and shut off your lights. It depends on–it entered my mind, is where they stealing something, maybe doing something involving anhydrous, making methamphetamine." ¶ 6.

Ok. But Wasn’t It Clear She Was Hiding From You?

This is how the trooper answered the question:

"Um, there was not a residence in the immediate area of the barn. An individual pulled in behind a barn, and immediately shuts off the lights. Not knowing if they had seen me–I drive an unmarked squad car, so I didn't know if something was going on, or if they were trying to hide or not. *** I didn't know if there was any foul play going on, if they were trying to hide from me or not whenever they pulled up to the barn." ¶ 7.

Of course, the trooper testified that she was free to leave at any time.

Illegal Search & Seizure

So let me end the suspense. The appellate court reversed the trial court’s decision to deny the defendant’s motion to suppress.

No big surprise given the way the facts were rolled out.

However, I think that the prosecution could have had a better shot at winning the motion if they had just had some better preparation from the trooper.

These cases teach us that perspective matters. There are going to be judges and juries who 100% are on board with the views, opinions, and perspectives held by law enforcement.

Part of the problem for the State was that the trooper was not articulating anything. This left a horrible record (for them). The appellate court had no choice but to reverse this case.

If we have learned anything about cops, citizens, and especially search & seizure analysis it is that:

"There is always wiggle room." And
Their perspectives really matter.

Maybe the State Could Have Won

Perhaps, with slightly different testimony from the trooper the State could have pulled out a victory, even with these facts.

I have lost plenty of trials and motions and thought I would win because of two main reasons:

  • Legal Wiggle Room
  • Personal Perspective of Judge or Jury

Now look, I think the result was definitely correct in this case. However, the litigator in me also can see how these same facts could have resulted in a win for the State. 

That does not mean that is what I think should have happened. It just means it is always in our best interest when we can explore a case and its results from all angles. 

You know what I'm saying?

The Law Is Wiggly 

On the law side, we don’t have to look to hard for wiggle room.

We know that police are people too. They are free to walk up to people or follow cars the same way a normal citizen can do it.

"It is well settled that not every encounter between the police and a private citizen results in a seizure." People v. Luedemann, 222 Ill. 2d 530, 544 (2006).

The test to determine whether a person seated in a parked vehicle has been "seized" by the police is whether a reasonable person in the defendant's position would have believed she was free to decline the officer's request or otherwise terminate the encounter. Luedemann, 222 Ill. 2d at 550-51.

"When a police officer, through the use of physical force or show of authority, has in some way restrained the liberty of a citizen, the court may conclude that a 'seizure' has occurred." People v. Carrera, 321 Ill. App. 3d 582, 589 (2001). 

A person may be seized with less than probable cause under Terry principles. "And Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime." People v. Close, 238 Ill. 2d 497, 505 (2010). "The investigatory stop must be justified at its inception." Id.

And of Course we know that the ...officer must be able to point to specific, articulable facts which, taken together with rational inferences, reasonably warrant the investigatory stop.” Id. "The officer's suspicion must amount to more than an inarticulate hunch [citations], but need not rise to the level of suspicion required for probable cause [citation]." Id.

So had the State applied some of these search and seizure principles with a strong showing of the officer’s perspective who knows what might have happened in court?


The gun was the deal killer for the appellate court.

Yea, drawing your gun and her was a significant show of authority. Despite, the officer’s statement that she was free to leave a reasonable person knows you ain't’ going anywhere when the cops pull a gun on you.

“Effectively, the defendant was seized from the point where the officer pulled in behind her vehicle.” ¶ 16.

The problem for the State is that the trooper had done a terrible job of articulating his suspicions. He doesn’t point to anything solid and doesn’t make sue of the very minimal flexible standards in the law.

Defendant’s Perspective Wins Out

This is where the huge difference in perspectives comes into play in these cases.

Clearly the appellate judges were swayed by the defendant’s story in this case. Her perspective is that -

  • She Was Minding Her Own Business
  • She Was Not Doing Anything
  • She Was Scared When Car Followed Her
  • She Couldn’t Avoid the Car
  • Then He Pulled a Gun on Me

Officer’s Perspective Never Articulated

Officer never really lays out his train of that or exactly what he was thinking. His perspective is not articulated well at all.

Which usually the prosecution would want to do because there are sympathetic judge and jurors out there who share the same view point.

Why didn’t they ask him directly,

“Why did you take out the gun?”

Make a record of him saying, “I was scared.” It seems the trooper did not take an opportunity to express exactly what he felt when he took his gun out.

We all know what was going on. She was hiding from him. But he never really takes a chance to address issues that always seem to come up in the cases I litigate.

  • Was she was making furtive movements in the car?
  • Do barns get burglarized?
  • Why else do people hide behind barns?
  • What other crimes were you worried about preventing?
  • Do these people who hide behind barns ever have weapons on them?
  • Do barn-hiders hate cops?

All I am saying is that I have seen the State hit home runs with these kinds of issues.

Maybe the issues were not there for the taking in this case, maybe the trooper just fumbled it, or maybe the defense just had the better story.

Holding: Illegal Search and Seizure

“Here, the evidence reveals that the officer could not articulate any facts to support a reasonable suspicion that the defendant had committed, or was about to commit, a crime that would justify the investigatory stop.” ¶ 19.