Jun 6, 2018
Episode 496 (Duration 13:26) Here's a quick summary of 5 recent "pat down" cases. 3 Go for the State, and 2 come out in favor of the defense.
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The Search & Seizure Case List
In This Episode...
We discuss the following cases:
- People v. Richardson, 2017 IL App (1st) 130203-B (May)
- People v. Evans, 2017 IL App (4th) 140672 (March)
- In re Jarrell C., 2017 IL App (1st) 170932 (December)
- People v. Gomez, 2018 IL App (1st) 150605 (April)
- In re D.L., 2017 IL App (1st) 171764 (December)
...and the bonus:
People v. Richardson
Fidgeting With Your Waistband At The Wrong Time Gonna Get You Patted Down.
This pat down was justified after Defendant was fidgeting with his waistband and reaching for something after he was told to show them his hands.
Facts
Officers stop a car matching the general description of a stolen car.
Officer Akinbusuyi approached the vehicle from the passenger's side while Officer Johnson approached the driver's side.
Officer Johnson requested that the driver exit the vehicle after the driver was unable to produce a driver's license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the defendant mumbling and reaching "into the center console with his right hand but with his left hand it was stuffing something in his waistband."
Kind of Fishy
Officer Akinbusuyi testified that he found the defendant's actions unusual, because "he had no reason to be doing that after I verbally told him let me see your hands."
Officer Akinbusuyi testified that his "best judgment was that he was hiding something in his waistband."
Based on his experience, he believed that "[i]t was mostly likely a weapon, drugs or something he didn't want me to find."
Defendant Ordered Out
Officer Akinbusuyi asked the defendant to exit the vehicle, and the defendant complied.
Officer Akinbusuyi handcuffed the defendant, "patted down the area" and discovered a handgun in the defendant's waistband.
The officers subsequently searched the vehicle and found the victim's culinary tools confirming it was the stolen car.
Issue
Defendant contends that his motion to suppress evidence and quash arrest should have been granted because the arresting officer's pat-down search was unconstitutional.
He argues that the pat-down search was not justified pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because Officer Akinbusuyi lacked a reasonable belief that the defendant was armed and dangerous.
Law
Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; Ill. Const. 1970, art I., section 6. Courts have divided police-citizen encounters into three tiers:
(1) arrests which must be supported by probable cause;
(2) brief investigative detentions, or 'Terry stops,' which must be
supported by a reasonable, articulable suspicion of criminal
activity; and
(3) encounters that involve no coercion or detention and thus do
not implicate fourth amendment interests.
Terry Stop Pat Down
In Terry, the United States Supreme Court held "that a brief investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth amendment when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous."
Terry further specifies when a pat-down search for weapons during an investigative stop is permissible if:
"...nothing in the initial stages of the encounter serves to dispel [the officer’s] reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."
Terry, 392 U.S. at 27.
Reasonableness
"[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given *** to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."
Defendant argues that the circumstances described in that testimony did not justify a reasonable belief that the defendant was armed and dangerous. He asserts that, in reviewing the legality of the pat-down search, the court may not consider the reason why the police stopped the vehicle.
He claims: "Although the officer[s] may have suspected that the vehicle they pulled over may have been" the vehicle reported stolen 90 minutes earlier, "they had absolutely no proof of it at the time they pulled it over."
He further argues that because he was "merely the passenger" and did not control the vehicle, "the status of the car plays no part in the search of [the defendant] by Officer Akinbusuyi."
The defendant suggests that, to support a pat-down search, the officer needed to testify to a more definite belief that the defendant was armed.
Holding
Regardless of whether the officers had yet found proof that the vehicle was stolen, in considering the "totality of circumstances", it was reasonable for Officer Akinbusuyi to take into account that the vehicle matched the description of a car stolen approximately 90 minutes earlier. See People v. Simpson, 2015 IL App (1st) 130303, ¶ 25 (finding that the Terry stop of a vehicle shortly after a reported home invasion was supported by the fact that the vehicle fit the victim's description of the suspects' car).
This fact could contribute to the officer's reasonable suspicion that the occupants were involved in criminal activity and were potentially armed and dangerous.
More importantly, Officer Akinbusuyi testified that, after the driver was asked to exit the vehicle and the defendant
- was asked to show his hands,
- the defendant reached toward the center console with one hand
- and used his other hand to put something into his waistband.
Officer Akinbusuyi testified that based on his experience, he believed the defendant was attempting to hide something, "most likely a weapon, drugs or something he didn't want me to find."
The officer's belief that the defendant was "mostly likely" hiding a weapon indicated a sufficient suspicion to warrant the pat-down search.
Certainty Not Required
We reiterate that an arresting officer need not be "certain" that the defendant is armed to have a reasonable suspicion, and that the officer may rely on "reasonable inferences in light of his experience."
The defendants' furtive movements —especially after being asked to keep his hands visible—could support the reasonable suspicion that the defendant was armed.
We conclude that the pat-down search was justified under the Terry standard, where
(1) the police officers encountered two individuals at night in
a vehicle that matched the description of a recently stolen car
and
(2) the defendant's movements in the car supported a reasonable
suspicion that he was armed or had access to a weapon in the
vehicle.
People v. Evans
Putting Your Hands In Your Pockets May Get You Patted-Down.
Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.
Facts
Officer is responding to a call of a possible burglary.
He sees defendant walking.
He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.
Safety Concern
He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.
Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.
Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.
Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.
Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.
Issue
On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”
Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.
The central point of inquiry is at what point was defendant seized.
Mendenhall Factors
The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.
Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.
Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.
Officer's Questions
This defendant’s path of travel was not blocked or interfered with in any way.
The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.
No Seizure
The initial encounter here was a consensual encounter.
None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.
Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.
First Request To Hands From Pockets
Defendant next argues he was seized at the moment the officer first requested he remove his hands from his pockets.
The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.
Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.
The fact defendant continued to place his hands back into his pockets shows defendant did not fully submit to the officer’s request.
Defendant did not appear to believe compliance was compulsory because he did not comply with the officer’s obvious wish.
Repeated Requests
Defendant opines the repeated requests he remove his hands from his pockets may have signaled he was suspected of wrongdoing, thus impacting his willingness to continue the encounter.
Defendant’s willingness to continue the conversation is evidenced by the fact he continued speaking to the officer even after the officer asked him several times to remove his hands from his pockets.
Further, the nature of the conversation indicated defendant was not a suspect or even a witness to the possible crime the officer was investigating.
The thrust of defendant’s claim is that the officer’s request for defendant to remove his hands from his pockets was a show of authority.
Even if the request was a show of authority, defendant resisted the authority by continuing to place his hands back into his pockets.
Right To Terminate
Further, the central question remains whether a reasonable person would have felt free to terminate the encounter.
The request for defendant to keep his hands visible did not prevent him from exercising his right to terminate the encounter, and a reasonable person in his place should not have believed that right had been extinguished by the request.
The touchstone of the fourth amendment is reasonableness, and the request to keep one’s hands visible is not an unreasonable restraint of liberty. It merely serves as a protection to both officer and citizen.
Terry
The court rejected defendant’s argument he was seized when the officer requested he remove his hands from his pockets and conclude defendant was not seized until the officer frisked him.
Under Terry, the officer may conduct an investigatory frisk for weapons upon reasonable suspicion the individual is armed and dangerous. See also 725 ILCS 5/107-14, & 725 ILCS 5/108-1.01.
Armed & Dangerous
When an officer has a reasonable suspicion during an investigatory stop that the individual may be armed and dangerous, the officer is permitted to take necessary measures to determine whether the person is armed and to neutralize any threat of physical harm.
Police officers need not have reasonable suspicion of criminal activity to conduct a Terry frisk for weapons during a consensual encounter but, rather, need only have reasonable suspicion the citizen is armed and potentially dangerous.
No Suspicion of Crime Required
The fourth appellate district now holds that a police officer may conduct a Terry frisk during a consensual encounter upon developing reasonable suspicion the citizen is armed and dangerous; the officer need not develop reasonable suspicion of criminal activity. In such cases, the seizure and frisk will occur contemporaneously because a consensual encounter is, by definition, not a seizure.
Accordingly, a police officer must have reasonable suspicion the individual is armed and dangerous at the time of the frisk.
By so concluding, defendant’s arguments relating to the lack of reasonable suspicion defendant was involved in criminal activity became inapplicable. Thus, A Terry frisk during a consensual encounter must be predicated by reasonable suspicion the individual is armed with a weapon and, therefore, presently dangerous.
More Than a Hunch
To develop reasonable suspicion, the officer must have more than an “inarticulate hunch”; the officer must “point to specific and articulable facts which, taken together with rational inferences from those facts” demonstrate the suspicion is reasonable. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Officer's Inferences
When reviewing the reasonableness of an officer’s conduct, it is appropriate to give due weight to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience.
This is an objective standard asking if an individual of reasonable caution would believe that the action was appropriate.
Holding
This is what the officer new:
He was alone with defendant at a late hour in an area he knew was a high-narcotics crime area. He was substantially smaller than defendant. Defendant was coming from a known drug house, in the officer’s experience individuals who deal with narcotics are often armed with a weapon.
Plus, Defendant acted peculiarly by continually placing his hands in his pockets, even after being asked him to remove his hands from his pockets several times defendant ultimately refused to remove his hands and asked why he needed to.
It was objectively reasonable for the officer to suspect defendant may have been armed with a weapon. This officer did not decide to frisk defendant based solely on one fact alone; he decided to frisk defendant based on the quantum of facts he learned while speaking to defendant, coupled with defendant’s refusal to keep his hands visible.
In sum, the court concluded the totality of the circumstances known to the officer at the time of the frisk warranted the reasonable suspicion defendant was armed and thus dangerous, thereby permitting him to conduct a Terry frisk.
In re Jarrell C.
Holding Your Crotch Is Not Indicative Of Carrying A Gun.
Illinois fails to apply the exclusionary rule after police discover a warrant notwithstanding Utah v. Strieff.
See Utah v. Strieff
Episode 185 – Thomas Guts the Exclusionary Rule – Utah v. Strieff
Utah v. Strieff
In Strieff, a law enforcement officer conducting surveillance on a suspected drug house noticed the defendant exit the house and walk away. The officer followed and eventually confronted the defendant in a nearby parking lot. Then the officer asked for and received the defendant’s identification card and conveyed the information to the police dispatcher. A warrant check revealed the defendant had an outstanding warrant, and he was placed under arrest. During a search incident to arrest, the officer discovered drugs and drug paraphernalia on the defendant’s person. The Court found that the discovery of an outstanding arrest warrant was “a critical intervening circumstance” that “broke the causal chain between an unconstitutional stop and the discovery of incriminating evidence.” See Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016).
This Case
While driving in an unmarked car, Officer Ustaszewski was showing the commander and the captain areas of concern in a high-crime area so they could determine where to best deploy resources. He observed respondent standing on Kenneth Avenue in front of a building that is a known Latin Eagles hangout, holding his waistband or the material of his shorts between the waist and the crotch area like he was “holding something” with his right hand.
Ustaszewski testified that, in his opinion as an intelligence officer familiar with different areas where street gangs hang out, when people hold their waistbands, they are concealing objects, most likely guns. Officer Ustaszewski observed respondent for a few minutes and saw him looking in the direction of the officers and then walking inside the currency exchange.
The commander and the captain followed respondent inside the currency exchange.
The Encounter
Defendant was waiting in line to purchase a bus card.
Less than a minute and a half later, a police officer (the commander) entered the currency exchange. Respondent indicated that the police officer motioned with his finger for respondent to “come here.” Respondent replied “Who me?” The officer said “Yes, you.”
Respondent stated that the officer had his hand on his gun.
Respondent walked over to the officer at that point. Two other officers entered the currency exchange. One of officers told him to lift up his shirt. Respondent replied,
“What’s the problem, sir? I didn’t do anything.”
The officer told respondent to lift up his shirt “before we go over there and do it for you.”
Respondent lifted up his shirt while turning around.
Next, the officers told him to put his hands on the railing so they could search him. One officer unholstered his gun. Another officer searched and recovered a gun from respondent’s left side.
Respondent was then taken outside to a police car.
The police recovered some drugs from his person.
Other Police Testimony
The officer asked respondent to lift up the front of his T-shirt, but respondent only lifted up the back of the shirt slightly and turned around. Ustaszewski could not see the front of respondent. Respondent then turned around and pulled out his shirt, and the officer saw that the shirt “buckled up on the front.” Ustaszewski stated that at that point, he knew that respondent had a gun.
Ustaszewski testified that he believed respondent was behaving similarly to other gun offenders he had previously arrested based on “the nervousness, the holding of the front waistband, reluct[ance] to lift his shirt up.”
Ustaszewski had respondent place his hands on the railing while Commander Escamilla recovered a handgun from respondent’s front waistband.
He Had A Warrant
The State admitted into evidence a certified copy of a previous juvenile arrest warrant for respondent issued by the circuit court on pursuant to an unrelated case. There was no evidence presented that any of the officers were aware of the arrest warrant issued by the circuit court before or at the time respondent was stopped and searched.
Trial Judge Applies Attenuation Doctrine
After closing arguments, the trial court found that respondent holding the area between his waist and crotch did not give the officers a reasonable articulated suspicion to seize respondent. The court held there was an attenuation of the illegal seizure due to the existence of a valid arrest warrant for respondent at the time of the seizure, and the police conduct was not flagrant.
The court denied respondent’s motion to suppress the evidence.
Issue
On appeal, respondent argues that the trial court erred in denying his motion to suppress.
Respondent contends that the trial court properly determined the investigatory stop was lacking reasonable suspicion but the court erred in its application of the attenuation doctrine. According to respondent, his previous arrest warrant did not attenuate the unlawful detention from the discovery of the evidence when the officers were not aware of the existence of the warrant at the time of the search, before or during the discovery of the gun and the drugs.
Crotch Holding
The mere holding up someone’s pants or putting something in one’s pockets is not a hallmark of criminal activity. In addition, the video exhibit included in the record on appeal corroborates respondent’s testimony that he was not holding his waistband at the time respondent was inside the currency exchange.
Attenuation Doctrine
Three of the exceptions to the warrant requirement involve the causal relationship between the unconstitutional act and the discovery of evidence.
Those exceptions are known as (1) the independent source doctrine, (2) the inevitable discovery doctrine, and (3) the attenuation doctrine. The attenuation doctrine allows for the admission of evidence obtained unlawfully when the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.
In Utah v. Strieff, the Supreme Court considered whether the discovery of a valid existing warrant is sufficient to break the causal chain between an unlawful stop and the discovery of evidence.
The Court looked to the three factors espoused in Brown v. Illinois, 422 U.S. 590, 602 (1975) for determining whether the attenuation doctrine applied:
(1) the temporal proximity between the unconstitutional conduct
and the discovery of evidence to determine how closely the
discovery of evidence followed the unconstitutional
search,
(2) the presence of intervening circumstances, and
(3) the purpose and flagrancy of the official misconduct.
Analysis
In Strieff, the officer stopped the defendant without reasonable suspicion and then conducted a warrant check, and based on the warrant he discovered, he arrested defendant. The drugs at issue were found pursuant to the search incident to the arrest.
As a result, the causal chain between the officer’s illegal action—the initial, unjustified Terry stop—and the search was “broken” by the intervening discovery of the warrant.
Unlike Strieff, the instant case presents a different situation.
Nothing in the record shows that the officers were aware of the warrant before or at the time respondent was detained and searched. Neither Officer Ustaszewski, nor Commander Escamilla investigated or learned of the existence of the warrant after stopping respondent and before searching him. In other words, there were no intervening circumstances between the initial illegal stop and the discovery of the evidence.
Indeed, an intervening circumstance is one that dissipates the taint of unconstitutional police conduct by breaking the causal connection between the illegal conduct and the evidence. Where an intervening circumstance has been held sufficient to break the causal chain it has been newly discovered information, untainted by illegality. Notably, in all these cases, there was a break in the causal chain prompted by new information or intervening event subsequent to the illegal stop and before the discovery of the evidence.
In sharp contrast, here, the arrest warrant, although a valid one, was unknown information to the police at the time of the search and the discovery of the evidence. Accordingly, the arrest warrant did not do anything to attenuate the taint of the illegal stop.
Unlike Strieff, here, the officers did not discover the arrest warrant between the unlawful stop and the discovery of the gun and the drugs.
Holding
Accordingly, since there was no intervening circumstance to cause a break between the police misconduct and the evidence recovered, we find that the second factor favors suppression of the evidence.
We reverse the court’s holding on this issue.
Based on the foregoing, we conclude that the trial court erred in denying respondent’s motion to quash arrest and suppress evidence obtained as a result of the illegal stop. Because the State cannot prevail on remand without the suppressed evidence, we reverse respondent’s adjudication of delinquency.
Reversed outright.
People v. Gomez
Acting Kooky In The Back Seat Is Going To Get You Ordered Out Of The Car.
Police roll up on a parked car and order everyone out; they find a gun.
Gist
Defendant was sentenced to 7 years for a gun.
The Car
3 officers are in an unmarked squad car when they notice the same Grand Marquis driving around the neighborhood. Eventually, the car pulls over. Defendant is in the back seat with another guy. The police talk to the driver window to window from the cars.
He asked the driver “what he was doing, [and] if he lived around there.” They did not box in the car.
The driver initially responded that he lived down the street; however, the driver admitted that he did not live down the street, but resided somewhere on the “other side of Pulaski.”
Rear Seat Passenger
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.
That seemed suspicious.
Cops Had Enough
The cops get out of their car.
As a detective 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.
The detective 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.
He Has A Gun
Based on his observations of defendant’s behavior, the detective believed that defendant had a weapon on him and ordered all three occupants of the Grand Marquis to exit the vehicle. 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, the Sergeant 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. The detective immediately recovered the gun, which was loaded, and defendant was then placed into custody.
Statements About The Gun
After the police 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 the police station defendant admitted that he “was holding the gun for S.D.’s from 59th Street.”
Defendant and the two other occupants of the Grand Marquis were not acting aggressively toward the officers before they were ordered out of the vehicle.
3 Tiers Of Police Contact
Courts evaluating the nature and propriety of police-citizen encounters have grouped those interactions into three tiers:
(1) an arrest or detention of an individual supported by
probable cause;
(2) brief investigative stops, commonly referred to as “Terry
stops,” supported by a reasonable, articulable suspicion of
criminal activity; and
(3) consensual encounters involving neither coercion nor detention
and do not implicate the fourth amendment.
See People v. Luedemann, 222 Ill. 2d 530, 544 (2006); People v. Smith, 2016 IL App (3d) 140648, ¶ 28.
Seizure
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.
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.
Our supreme court has emphasized that this “test presupposes a reasonable innocent person.” 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).
“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.
Police Can Still Ask Questions
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.
Indeed, even where an officer has no basis for suspecting an individual, he may nonetheless question that individual, request identification, and seek the individual’s consent to search. Importantly, “a confrontation with a police officer is not a seizure on the basis that the officer’s authority produces an inherent pressure to cooperate.
Rather, an encounter between a police officer and a civilian is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.
Analysis
The record establishes that after the detective stopped his vehicle alongside the car, he conversed briefly with the driver while the windows of both vehicles were lowered. Although the detective 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 the driver.
Moreover, there is no evidence that the tone and tenor of the detective’s voice when he posed several questions to the driver was forceful or coercive. Although defendant characterizes the questioning as “relentless” and “persistent,” the record does not support that characterization.
Rather, it appears that the detective simply posed two general inquiries to the driver, asking him “what he was doing, [and] if he lived around there.” After hearing the driver’s responses, the detective testified that he then posed one follow-up question, and requested the driver to identify his “exact address.”
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 and the officers do not convey by their words or actions that compliance with their requests is required.
Accordingly, we find that defendant was not subject to an immediate seizure when the squad car was stopped alongside of the parked Grand Marquis and asked the driver several questions, which he was willing to answer.
The Order To Get Out Of The Car
This does not end our inquiry, however, given that “a consensual encounter will lose its consensual nature if law enforcement officers convey a message, by means of physical force or show of authority, that induces the individual to cooperate.” Gherna, 203 Ill. 2d at 179.
Although the officers approached with flashlights, the use of a flashlight is not per se coercive, especially where, as here, the police-citizen encounter took place at night and the flashlights were simply used to illuminate the scene.
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.
So, Was The Seizure Reasonable?
To justify a Terry stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.
Here, we find that based on the totality of the circumstances, the police had reasonable suspicion to suspect that criminal activity was afoot at the time they initiated the seizure.
The police 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, the detective 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, the detective 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, defendant found defendant’s continued furtive movements to be suspicious and became concerned with officer safety.
The Terry standard does not require an inevitable conclusion or absolute certainty; rather, it simply requires a reasonable suspicion that criminal activity is afoot.
In an effort to dispel his suspicions that criminal activity was afoot and in order to ensure officer safety, the detective ordered defendant and the other occupants of the Grand Marquis to raise their hands into the air. When defendant did so in a manner that allowed him to continue concealing his waist, the detective’s suspicion that defendant was armed was strengthened, and he subsequently ordered defendant and the other occupants of the Grand Marquis.
The gun then fell to the ground when defendant exited the vehicle.
See Also
People v. Holmes, 2017 IL 120407 (July)(notwithstanding Aguilar probable cause for an arrest exist when police see a gun) – Episode 387
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 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.
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).
Holding
The circuit court did not err in denying defendant’s motion to suppress.
In re D.L.
Running Away From A Shot’s Fired Scene Seems Reasonable.
Kid is seen walking away from the location of a “shots fired”, he starts to run, when they catch him he has a gun.
Gist
Respondent was charged with various gun charges in juvenile court. He filed a motion to quash defendant’s arrest and suppress evidence, alleging that he was subjected to an unreasonable search and seizure.
Shots Fired
Officer Scaduto testified that on the evening of March 28, 2017, he was working with three partners—Officers Borne, Riley, and Boubach—in an unmarked squad car. The officers were in plainclothes, wore “CPD badges” and had “police” on the back of their vests.
Around 8:20 p.m., the officers received a dispatch concerning multiple calls of shots fired on “the 117th block of Loomis.” The dispatch gave no information about the identity of the suspects or callers, other than “more than one person called in th[e] incident.”
Quick Response
Officer Scaduto and his partners, who were about “one minute away on Halsted Street,” responded to the dispatch and began to drive toward the 117th block of South Loomis Street. One minute later, while travelling westbound on 116th Street, the officers saw respondent and another male walking eastbound on the sidewalk about “two houses away from Loomis.”
Officer Scaduto did not know respondent, or see any bulges in his clothing. Officer Scaduto observed that respondent and the other male were “walking quickly” away from the area of the shots fired call. There were no other people on the street at the time, and Officer Scaduto observed respondent for approximately five seconds.
Approach The Kid
Officer Scaduto stated that, “[d]ue to the fact that it was a shots fired call in that area and [respondent] was walking quickly away from that shots fired call, we attempted to conduct a street stop *** [to] have a conversation about the shot[s] fired call and if they heard anything.”
The officers approached, and Officer Scaduto “told [respondent] to stop so we could have a conversation about the shots fired call.” When asked whether this was “a request or *** an order,” Officer Scaduto clarified that “[i]t was an order.” The male who was walking with respondent “complied” and headed toward the police car. Respondent, however, “did not comply with [Officer Scaduto’s] order and began running” northbound down an alley.
They Catch Him
Officer Scaduto pursued respondent on foot, did not lose sight of him, and detained respondent less than one minute later. Once he apprehended respondent, Officer Scaduto handcuffed respondent, “detained him[,] and placed him in custody.” Officer Scaduto conducted a pat-down because he had “reason to believe that [respondent] ran *** because he was concealing a firearm.”
Officer Scaduto denied that respondent was arrested at this point, stating that it was “part of the field interview.”
The Pat Down
During the pat-down, Officer Scaduto recovered a .380-caliber semiautomatic handgun from inside the pocket of respondent’s jacket. The handgun was “stove piped,” meaning it had a malfunction that “only happens after you actually shoot the firearm.” After he recovered the weapon, Officer Scaduto placed respondent under arrest.
Officer Scaduto explained that he performed a pat-down “[b]ased on the totality of the circumstances, the shots fired call, the minor respondent walking away from the area of the shots fired call ***, and that he and another individual were the only ones on the street at the time of the shots fired call in that area.” He further asserted that he had “reason to believe that he was concealing a firearm” based on the “shots fired call” and “that he fled from me and didn’t obey *** my verbal commands.”
Defendant’s Argument
Based on the above testimony, respondent argued that before Officer Scaduto had ordered him to stop, the officer had only observed him for five seconds, at which time he had been engaged in “normal behavior” by “walking away from a shooting scene.” Respondent pointed out that Officer Scaduto did not observe any bulges or weapons and that there was no description, eyewitness, or informant connecting respondent to the shots fired. Respondent further argued that it was not enough to be in an area where criminal activity occurred and that flight from the police was not, standing alone, sufficient to establish probable cause.
State’s Argument
The State specifically contends that the totality of the circumstances supported a reasonable articulable suspicion that respondent “may have been involved in criminal activity” and a reasonable belief that respondent was armed and dangerous.
In this case, the State argues that Officer Scaduto’s intent at the time he ordered respondent to stop is irrelevant, because respondent was only “seized” for purposes of the fourth amendment when Officer Scaduto captured him after he fled down an alley.
The State asserts that the officer was justified in stopping respondent at that point, describing the “totality of the circumstances” as “there were numerous calls of shots fired; *** respondent and his companion were walking quickly away from the crime scene of shots fired; *** no other people were in the area except for respondent and his companion; [and] *** the officers attempted to conduct a field interview but respondent turned around and fled.” ¶ 21 In so arguing, the State seemingly concedes that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop of respondent at the time that he initially ordered him to stop.
We agree.
Trial Court Agrees
The circuit court granted respondent’s motion to quash arrest and suppress evidence. The court concluded that “the fact that two individuals happen to be on the street where shots are fired, does not make them subject to give up their fundamental civil rights.”
Fourth Amendment
The fourth amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. “This provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).
Under the Terry exception, the police may conduct a brief investigatory stop “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The police officer “must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant that intrusion.” Thomas, 198 Ill. 2d at 109. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.
The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity. [Citation.]” Wardlow, 528 U.S. at 123-24. The underlying facts are viewed “from the perspective of a reasonable officer at the time that the situation confronted him or her.” Thomas, 198 Ill. 2d at 110.
Analysis
At that time, the officer had observed respondent for five seconds as he was “walking quickly” on the sidewalk of 117th Street. Although the officer described respondent as walking “away from the area of the shots fired call,” his testimony also established that respondent was not walking on either 116th Street or Loomis Street, the intersection where the shots were reported to have originated, and instead respondent was between one and two blocks away from that location. Nevertheless, as the trial court concluded, most people would be inclined to make a quick departure from the scene of gunfire, and accordingly, such behavior would not be unusual. Even Officer Scaduto implicitly acknowledged that he had no suspicion that respondent had engaged in criminal conduct at that time, since his claimed intent was to “have a conversation” with him about whether he had “heard anything” regarding the shots fired.
Moreover, the circumstances surrounding Officer Scaduto’s order were clearly meant to exhibit a show of authority that would be indicative of a seizure. Specifically, Officer Scaduto and three other officers approached respondent, and Officer Scaduto used particular language when testifying, which indicated that he intended to convey to respondent that compliance with his request was mandatory.
Yea But He Ran
The court quoted Professor LaFave: “The flight of a person from the presence of police is not standing alone sufficient to establish probable cause, unless of course the circumstances are such that the flight from the officer itself constitutes a crime. Were it otherwise, “anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to legal arrest,” which can hardly “be countenanced under the Fourth and Fourteenth Amendments.” (quoting 2 Wayne R. LaFave, Search and Seizure § 3.6(e), at 323-24 (3d ed. 1996)).
The State argues, without supporting authority, that a “reasonable person innocent of a crime would not flee from the police” (emphasis in original). However, the United States and Illinois Supreme Courts have held otherwise. See Wardlow, 528 U.S. at 125 (Accepting as “undoubtedly true” that “there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity.”)
Even considering respondent’s flight as part of the totality of the circumstances, we still conclude that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop at the time that respondent was apprehended.
Although “[u]nprovoked flight in the face of a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop” (emphasis added) (Thomas, 198 Ill. 2d at 113), there is no bright-line rule authorizing the temporary detention of anyone who flees at the mere sight of the police (see Wardlow, 528 U.S. at 126. To the contrary, it is well settled that flight alone is not sufficient to establish reasonable suspicion that a person has committed, or is about to commit, a crime.
It is only when that flight is coupled with other factors that it may support reasonable suspicion justifying a Terry stop. In this case, the trial court found no other factors supporting a finding that Officer Scaduto had reasonable suspicion that respondent committed or was about to commit a crime. As discussed above, aside from his flight, there was no testimony showing that respondent was acting suspiciously in any way. In these circumstances, we conclude that respondent’s flight alone did not justify the subsequent Terry stop.
Wardlow Rejected
In so holding, we also reject the State’s reliance on Wardlow, 528 U.S. 119. In Wardlow, the Supreme Court held that the defendant’s unprovoked, “[h]eadlong flight” was one factor among several that, taken together, supported an officer’s reasonable suspicion of criminal activity.
In particular, the Supreme Court noted that the officers saw defendant in an “area known for heavy narcotics trafficking,” where the officers expected to encounter “drug customers” and “lookouts.” The officers saw the defendant standing next to a building holding an opaque bag, and upon looking in the direction of the officers, the defendant fled through a gangway and an alley. The Supreme Court held that the above circumstances created a reasonable suspicion of criminal activity which justified a Terry stop.
Here, however, unlike in Wardlow, the trial court found no other factor supporting reasonable suspicion to justify a Terry stop when considering the totality of the circumstances. We do not find the trial court’s conclusion on this point to be manifestly erroneous.
Bad Stop Bad Pat Down
Having concluded that the police were not justified in temporarily detaining respondent, we must also conclude that the subsequent search was not justified. A police officer making a reasonable investigatory stop may conduct a protective search if he has reason to believe the suspect is armed and dangerous. Adams v. Williams, 407 U.S. 143, 146 (1972).
“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” However, the right to perform a protective search presupposes the right to make the stop. The police may only perform a protective search if they are entitled to stop the person in the first place. In order for a frisk to be constitutionally reasonable, (1) the stop must be proper, (2) the officer must have reason to know that the defendant is armed and dangerous, and (3) the scope of the search must be strictly limited to a search for weapons.
Since Officer Scaduto did not provide specific and articulable facts justifying the Terry stop, the protective search performed during that stop also lacked a sound constitutional basis.
Holding
After giving the appropriate deference to the trial court’s findings of fact, we cannot conclude that the trial court was manifestly erroneous when it found the defendant had met his burden of showing that the seizure and search were unreasonable and violated his rights under the fourth amendment.
For the foregoing reasons, we affirm the decision of the circuit court of Cook County.
People v. Timmsen
Avoiding A Traffic Roadblock May Create Reasonable Suspicion Justifying a Traffic Stop.
Apparently, the police can stop you for trying to legally avoid a roadblock.
Facts
Defendant made a U-turn 50 feet from a roadblock to avoid it.
He was stopped and arrested for DWLS and possession of cannabis.
Issue
Does avoiding a traffic roadblock itself create a reasonable suspicion of criminal activity justifying a traffic stop by police?
Holding
The Illinois Supreme court held that defendant’s avoidance of the police roadblock provided reasonable suspicion for an investigatory stop.
Reasoning
The court felt that Defendant’s U-turn across railroad tracks just 50 feet before the roadblock is the type of evasive behavior that is a pertinent factor in determining reasonable suspicion.
Further, since the roadblock was well-marked, it was readily identifiable as a roadblock rather than being mistaken for an accident site or a road hazard, which one may generally desire to avoid.
Moreover, the roadblock was not busy, which suggests that a driver would not have feared a lengthy delay. When considering “the totality of the circumstances—the whole picture,” the deputy had reasonable suspicion to conduct an investigatory stop. Evasive behavior and a person’s refusal to speak with an officer when an officer approaches him are not one and the same.
Kinda-Like Head-Long Flight
This defendant was acting comparable to Wardlow who was do anything but going about his business. He was suspiciously actively avoiding contact with the police.
The court refused to adopt any bright line rules and said its always a totality of the circumstances determination. Avoidance as simply one factor in determining the existence of reasonable suspicion.
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