In re: Mario T. ( 2007 )

FIRST DIVISION
SEPTEMBER 28, 2007
No. 1-05-3499
In re MARIO T., a Minor ) Appeal from the
(The People of The State OF Illinois, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
)
v. ) No. 05 JD 4426
)
Mario T., ) Honorable
) Lori M. Wolfson,
Respondent-Appellant). ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
Following a hearing, the respondent Mario T. was adjudicated
delinquent based on his possession of cocaine and cannabis, and
sentenced to one year's probation. On appeal, the respondent
contends that the trial court erred in denying his pretrial
motion to quash arrest and suppress evidence. We agree and
reverse.
BACKGROUND
Prior to the adjudicatory hearing, the respondent filed a
motion to quash arrest and suppress evidence. The respondent
alleged that the police lacked justification for a protective
pat-down search that resulted in the recovery of illegal drugs.
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At the suppression hearing, Chicago police officer Hickey
testified that at 8 p.m. on July 18, 2005, she and her partner
went to 2964 S. State Street in response to a radio call that
three males were breaking into a vacant unit on the second floor
of the building. The officers proceeded to the second floor by
separate stairways to investigate. Upon reaching the second
floor of the six-story Chicago Housing Authority building,
Officer Hickey and her partner observed four males "loitering"1
in the hallway.
Officer Hickey testified that after observing the group for
a "few seconds," she decided to conduct a field interview to
determine "if they lived in the vicinity or in the building."
Officer Hickey learned that they did not live in the 2964
building and that the respondent lived in apartment 406 of the
2940 S. State building. Fearing for her safety, Officer Hickey
"performed a protective pat-down" by feeling around the
respondent's waistline and pocket to ensure that he was unarmed.
As she felt his front pocket, Officer Hickey "felt several small
1
We take the officer's testimony of the group's
"loitering" in the hallway as being descriptive of their activity
and not suggestive of any criminal acts on their part, especially
where neither the State nor the trial court expressed reliance on
the use of that word.
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rock like objects." When she asked the respondent what it was,
the respondent told her it was "rocks." Officer Hickey
understood "rocks" to be crack cocaine. She then removed 26
rocks of suspected crack cocaine from the respondent's pocket,
placed him into custody, and performed a second custodial search
which revealed four Ziplock baggies of suspected marijuana.
Officer Hickey testified that she feared for her safety
because the 2964 building is known as an area of high narcotics
and gang activity and, in her experience, weapons are often
associated with drug offenses. Officer Hickey testified that she
had been a Chicago police officer for five years and had made 50
to 100 narcotics arrests. She had made 10 to 20 arrests at this
address. She estimated she had made 10 to 20 arrests where both
drugs and weapons were involved.
Regarding the timing of the pat-down in relation to the
field interview, Officer Hickey testified "Yeah, after I spoke
with him, yes, I patted him down while I was speaking with him."
The respondent was cooperative; he did not attempt to run away
nor did he make any threatening gestures.
The respondent testified that he was on his way to his
sister's apartment on the fifth floor of the 2964 S. State Street
building when police stopped him and his three friends on the
second floor. The respondent said that the police "put us on the
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wall and went in our pockets" and found "weed and rocks" in his
pocket. The respondent testified that he told the police at the
beginning of the encounter that he was on his way to visit his
sister.
In support of the motion, defense counsel argued: "Under
the State's Attorney's theory, then everyone that lives there at
any point is subject[] to a reasonable search and seizure by the
officers because going by that theory, anyone that lives in that
area is under suspicion based on the fact that they simply live
there."
As to its reasoning for denying the respondent's motion to
quash arrest and suppress evidence, the trial court stated:
"[Based] on the officer's experience and
based on the circumstances, the circumstances
being two officer[s] alone in a hallway with
four males. The circumstances being the
experience that this officer has regarding
drugs and investigations in areas where drugs
are prevalent, the officer's experience with
guns, the [Terry] analysis and search
analysis is not a two-prong analysis, it's
three-prong analysis of whether [there's]
sufficient basis for the stop. Second,
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whether there's a sufficient basis for a
limited search. And third, whether there's a
sufficient basis for a weapons frisk. I
believe it was a limited search on the
officer's reasonable belief that they could
be in danger. The articulated facts that
made her concern[ed] for her safety ***, a
limited search to determine whether the minor
had any weapons [by] which she could be
harmed. * * * I do believe that she had a
right to make a limited search [under] the
circumstances of the case ***."
An adjudicatory hearing ensued wherein the parties
stipulated to the evidence presented at the suppression hearing.
The parties also stipulated that Nancy McDonagh, a forensic
chemist with the Illinois State Police crime lab, would testify
that the recovered items tested positive for cocaine and
cannabis. She estimated the cocaine weighed 15 grams and the
cannabis weighed .5 grams. The parties further stipulated that a
proper chain of custody was maintained at all times. The court
found the respondent delinquent and sentenced him to probation
for one year. The respondent renewed his motion to quash arrest
and suppress evidence posttrial, which the court denied.
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ANALYSIS
A. Initial Encounter
On appeal, the respondent concedes that the initial
encounter was lawful, but contends that the subsequent search was
not. The State contends that based on the respondent's
concession that the "stop" was lawful, we need only examine the
subsequent frisk to determine whether the officer's action was
justified. While we agree that the initial encounter between the
respondent and the officers was lawful, this is so because it was
not a "stop" under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S. Ct. 1868 (1968). Rather, it was a "third tier" encounter
between officers and citizens involving no coercion or detention
and hence no implication of fourth amendment interests. See
People v. Luedemann, 222 Ill. 2d 530, 544, 857 N.E.2d 187 (2006)
(three tiers of police-citizen encounters: (1) arrests, requiring
probable cause; (2) Terry "stops," requiring reasonable,
articulable suspicion of criminal activity; and (3) encounters
without "coercion or detention and thus do not implicate fourth
amendment interests"). Officer Hickey testified that after
viewing the respondent and his companions for a "few seconds,"
she and her partner approached the respondent for a "field
interview." According to Officer Hickey her intent in speaking
with the group was to determine "if they lived in the vicinity or
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in the building." Thus, it does not appear that the purpose in
conducting the field interview was to conduct a forceful stop.
At its inception, the field interview did not involve coercion or
detention. See People v. Thomas, 315 Ill. App. 3d, 849, 853, 734
N.E.2d 1015 (2000), aff'd 198 Ill. 2d 103, 759 N.E.2d 899 (2001)
(officer's "intent and design" in encounter with citizen gives
meaning to the term "field interview").
However, sometime in the course of speaking to the
respondent, Officer Hickey patted him down, which resulted in the
discovery of the cocaine. Once Officer Hickey began the
protective pat-down, it changed the fundamental nature of the
encounter from a consensual one into a full-blown Terry stop. See
generally People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260
(2003). Thus, the "stop" and the "frisk" occurred
simultaneously. See Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d
254, 120 S. Ct. 1375 (2000); People v. F.J., 315 Ill. App. 3d
1053, 734 N.E.2d 1007 (2000); In re S.V., 326 Ill. App. 3d 678,
761 N.E.2d 248 (2001). We analyze the "stop and frisk" from the
point of the pat-down to determine whether the police action was
justified under Terry.
B. Standard of Review
Mixed questions of law and fact are presented upon review of
an order denying the respondent's motion to quash arrest and
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suppress evidence. People v. Pitman, 211 Ill. 2d 502, 512, 813
N.E.2d 93 (2004). We will not disturb the trial court's findings
of historical fact unless they are against the manifest weight of
the evidence. Pitman, 211 Ill. 2d at 512. With the trial
court's findings of historical fact in mind, we review de novo
the trial court's ultimate legal ruling as to whether suppression
is warranted. Pitman, 211 Ill. 2d at 512.
The respondent contends that because he does not challenge
the substance of Officer Hickey's testimony, this case presents a
legal rather than a factual question, and the standard of review
should be de novo, citing People v. Dilworth, 169 Ill. 2d 195,
201, 661 N.E.2d 310 (1996). However, Dilworth was decided before
our supreme announced its decision in People v. Sorenson, 196
Ill. 2d 425, 430-31, 752 N.E.2d 1078 (2001), to follow the
federal standards set out in Ornelas v. United States, 517 U.S.
690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). "[W]e will
accord great deference to the trial court's factual findings, and
we well reverse those findings only if they are against the
manifest weight of the evidence; however, we will review de novo
the ultimate question of the defendant's legal challenge to the
denial of his motion to suppress." Sorenson, 196 Ill. 2d at 431.
While we question whether the application of either standard
of review as to the historical facts would make any difference in
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the disposition we reach, we see no reason to apply a standard of
review other than manifest weight of the evidence even where the
testimony in the State's case is essentially uncontested on
appeal. This we believe is consistent with the deference to be
accorded to the trial court's findings reviewed in light of the
trial court's ultimate determination denying the respondent's
motion. Our focus instead is on the legal question of the
justification of the stop and frisk so as to warrant the denial
of the respondent's motion to suppress, a ruling we review de
novo. Independent appellate review of the ultimate decision to
deny relief is appropriate, at least in part, because "'de novo
review tends to unify precedent and will come closer to providing
law enforcement officers with a defined "set of rules which, in
most instances, makes it possible to reach a correct
determination beforehand as to whether an invasion of privacy is
justified in the interest of law enforcement."'" In re G.O., 191
Ill. 2d 37, 47, 727 N.E.2d 1003 (2000), quoting Ornelas, 517 U.S.
at 697-98, 134 L. Ed. 2d at 919-20, 116 S. Ct. at 1662, quoting
New York v. Belton, 453 U.S. 454, 458, 69 L. Ed. 2d 768, 773, 101
S. Ct. 2860, 2863 (1981). "A ruling admitting evidence in a
criminal trial, we recognize, has the necessary effect of
legitimizing the conduct which produced the evidence, while an
application of the exclusionary rule withholds the constitutional
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imprimatur." Terry v. Ohio, 392 U.S. at 13, 20 L. Ed. 2d at 901,
88 S. Ct. at 1875. In this regard, whether the motion should
have been granted necessarily turns on a reviewing court's "own
assessment of the facts in relation to the issues presented and
may draw its own conclusions when deciding what relief should be
granted." Pitman, 211 Ill. 2d at 512.
C. Stop and Frisk
At the start of the pat-down, it seems clear that what
started as a consensual encounter was converted into a "stop and
frisk" as such an encounter has become known since Terry v. Ohio,
392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). To justify
the protective pat-down by Officer Hickey, the State asserts: "A
reasonably prudent person who found himself outnumbered by
individuals found loitering in the hallway of a building known
for narcotics, weapons and gangs on the floor where there was a
recent report of individuals breaking into an apartment and the
loitering individuals did not live in the building would have
believed he was in danger." Thus, the State relies upon five
factors to justify the police action in this case: (1) the
officers were outnumbered; (2) the building was a high crime and
gang activity area; (3) the recent report of criminal activity;
(4) the respondent did not live in the building; and (5) the
stated fear of Officer Hickey for her safety based on the
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cumulative effect of those factors. While the stop and frisk
occurred simultaneously, the respondent only raises a challenge
to the legality of the "frisk." We therefore only examine the
cited factors in the context of the lawfulness of the search.
See People v. Sorenson, 196 Ill. 2d 425, 752 N.E.2d 1078 (2001)
(challenge to frisk only); People v. Galvin, 127 Ill. 2d 153,
164, 535 N.E.2d 837 (1989) (stop valid, search not valid); People
v. Rivera, 272 Ill. App. 3d 502, 506-07, 650 N.E.2dd 1084 (1995)
(stop justified, search not justified). We set out the full
circumstances of the respondent's seizure and search as part of
the totality of the circumstances that was presented to the trial
court.
Burden of Proof
Before we discuss the factors cited by the State in support
of the trial court's denial of the suppression motion, it is
important to establish the respective burdens in the context of a
Terry challenge.
At the suppression hearing, the respondent was called to
establish his prima facie case that he was doing nothing unlawful
at the time he was stopped and frisked. This he successfully did
as the trial court denied the State's motion for a directed
finding after the respondent testified. "The burden of
production then shifted to the State to provide the specific and
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articulable facts from which the officer reasonably inferred that
[the minor] was involved in criminal activity." People v. F.J.,
315 Ill. App. 3d at 1057. In other words, "[o]nce a defendant
challenges a warrantless search, it becomes the State's burden to
show that the search" is constitutional. People v. Rushing, 272
Ill. App. 3d 387, 390, 649 N.E.2d 609 (1995). "[S]earches
conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth
Amendment - subject only to a few specifically established and
well-delineated exceptions." Katz v. United States, 389 U.S.
347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514 (1967).
" '[T]he burden is on those seeking the exemption to show the
need for it.' " Coolidge v. New Hampshire, 403 U.S. 443, 455, 29
L. Ed. 2d 564, 576, 91 S. Ct. 2022, 2032 (1971) quoting United
States v. Jeffers, 342 U.S. 48, 51, 96 L. Ed. 59, 64, 72 S. Ct
93, 95 (1951). One such exception "is the pat-down search
recognized by the Supreme Court in Terry v. Ohio, 392 U.S.1, 20
L. Ed. 2d 889, 88 S. Ct. 1868 (1968)." People v. Moss, 217 Ill.
2d 511, 518, 842 N.E.2d 699 (2005). Thus, it was the State's
burden to justify the pat-down search of the respondent.
1. The Radio Call
The State first sought to justify the pat-down search by
revealing why the officers were at the location. The State
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elicited from Officer Hickey that she and her partner were at
that location based on a radio call regarding an attempted
burglary by four males on the second floor of the building.
Based on the record before us, the radio call did not contain any
description of the individuals involved. There was no evidence
adduced regarding when the information was provided to the police
in relation to when the radio call was sent to the investigating
officers. The record is also barren of any evidence that the
officers upon arriving on the second floor conducted any
investigation to determine the accuracy of the radio call. No
testimony was elicited regarding, for example, an apartment door
being ajar, pry marks on an entry door, or any other indication
that a force was applied to any of the second-floor unit doors to
gain entry. In other words, nothing Officer Hickey observed
provided a reason to suspect the respondent and his companions
were involved in any attempted break-in of a vacant second-floor
unit.
Whether the radio call was based on information by a private
citizen that identified himself or herself, or a purely anonymous
call, whose reliability may be questioned by its very anonymity,
we do not know. In fact, based on the record before us, we do
not know whether there was any evidence of criminal activity
suggesting an attempted break-in beyond the information contained
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in the call itself.2
Nevertheless, whether the broadcast was "anonymous" as that
term is used in search and seizure law,3 we need not determine
because the contention of the defendant is not with his initial
stop but with the pat-down for weapons that occurred. In that
context, although we may question whether anything more than an
anonymous report served as the basis for the officer's stop at
the point she began the pat-down, we need only determine whether
there was justification for the pat-down itself under Terry. As
the radio call did not contain any information to suggest that
the individuals allegedly involved in the attempted break-in
posed a threat to the responding officers, the radio call,
itself, does not provide any basis to reasonably suspect that
2
This leads us to wonder whether the call was based on
observed conduct suggesting criminal activity or simply as a
means of extracting the young men from a place where they were
not wanted to the extent they were the subject of the call.
3
See Florida v. J.L., 529 U.S. 266, 275, 146 L. Ed. 2d 254,
263, 120 S. Ct. 1375, 1381 (2000) (Kennedy, J., concurring) ("If
the telephone call is truly anonymous, the informant has not
placed his credibility at risk and can lie with impunity. The
reviewing court cannot judge the credibility of the informant and
the risk of fabrication becomes unacceptable").
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Officer Hickey or her partner was in danger of attack upon
encountering the respondent and his companions so as to warrant
the search of the respondent's person for weapons.4 See People
v. Galvin, 127 Ill. 2d at 173 (no legal presumption that a
burglary suspect is armed and dangerous); 725 ILCS 5/108-1.01
(West 2004) (authorizing a Terry "frisk" based on reasonable
suspicion of danger of attack). We also note that based on the
findings articulated by the trial court, it appears the trial
court made no finding that the radio call that brought the
officers to the 2964 building provided anything more than a
4
This situation must be distinguished from a situation
where the police officer testifies that a suspect aroused her
suspicion based on her observations of the suspect, and so
justifies a stop and frisk. In the latter case, "the courts can
weigh the officer's credibility and admit evidence seized
pursuant to the frisk even if no one, aside from the officer and
the defendant themselves, was present or observed the seizure."
Florida v. J.L., 529 U.S. 266, 274, 146 L. Ed. 2d 254, 263, 120
S. Ct. 1375, 1381 (2000) (Kennedy, J., concurring). However,
Officer Hickey did not testify to anything the respondent did to
arouse her suspicion, except perhaps being present on the second
floor.
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reason for their presence. The trial court made no finding of
"criminal activity afoot" as the State argued during the motion
proceedings. Rather, the trial court's ultimate decision to find
the limited search of the respondent to be justified was based on
the officer's drug arrest experience in the building, the
unassailable connection between drugs and weapons, and,
apparently, her stated "fear" of harm in the presence of four
males.
As we noted above, there was no testimony elicited from
Officer Hickey regarding any investigation to confirm an
attempted break-in. Thus, in terms of the absence of evidence of
an actual crime, this case is not unlike People v. Flowers, 179
Ill. 2d 257, 688 N.E.2d 626 (1997). In Flowers, the police
stopped the defendant because they were investigating a
"'possible burglary.'" Flowers, 179 Ill. 2d at 261. The
defendant in Flowers was frisked because, as the appellate court
observed, "in this society," the investigating officer's
"caution" was warranted. Flowers, 179 Ill. 2d at 261. In
assessing whether the frisk for weapons was justified under
Terry, the supreme court noted, "[A]t the time defendant was
stopped, [the investigating officers] had already investigated
and found no evidence that the possible crime reported by the
anonymous caller had been committed or attempted." Flowers, 179
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Ill. 2d at 265. See People v. Sorenson, 196 Ill. 2d at 437 ("By
the time of the frisk in Flowers, the officers had already
investigated the report of a possible crime and had determined
that no crime had occurred").
Here, the situation is similar to that present in Flowers in
that there is nothing in the record to indicate that any
investigation conducted by Officer Hickey and her partner
revealed "evidence that the possible crime reported by the ***
caller had been committed or attempted." Flowers, 179 Ill. 2d at
265. We see no reason to support treating a lack of
investigation by police more favorably than an investigation that
fails to disclose that a crime has occurred. But, because our
holding turns on the search of the respondent rather than on the
justification for the stop, we examine the other factors to
determine whether they support the weapons frisk of the
respondent.
2. High Crime Area
Officer Hickey's testimony regarding her experience of many
prior arrests in the building (of course, not involving the
respondent or his companions) added little to any particularized
threat posed by the respondent and his companions. While Officer
Hickey testified that she had made numerous drug arrests in the
2964 building, many of which involved persons with weapons, as
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defense counsel made clear in her questioning, Officer Hickey did
not "go there specifically for any type of narcotics
surveillance." See People v. Rivera, 272 Ill. App. 3d 502, 506,
650 N.E.2d 1084 (1995) (claim that "narcotic arrests often ***
involve weapons" rejected as sufficient to automatically justify
a frisk). Nor did Officer Hickey testify to observing any
behavior by the respondent or his companions to arouse her
suspicion as to possible narcotics trafficking. In short, the
respondent's presence in the 2964 building (even if properly
characterized as a high narcotics area), was no different from
the presence of others the officers may have encountered in the
building. Officer Hickey's experience that the 2964 building was
a "high crime area," while providing a basis for her heightened
caution, by itself, is an insufficient basis for a reasonable
suspicion. Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d
570, 576, 120 S. Ct. 673, 676 (2000) ("An individual's presence
in an area of expected criminal activity, standing alone, is not
enough to support a reasonable, particularized suspicion that the
person is committing a crime"); People v. Moorman, 369 Ill. App.
3d 187, 193, 859 N.E.2d 1105 (2006). If the respondent's
presence in a building, where narcotics trafficking may be high,
does not provide a reasonable basis to support an inference that
criminal activity is afoot, it necessarily follows that his
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presence in such a high narcotics area provides no basis for a
Terry search. See People v F.J., 315 Ill. App. 3d at 1059-60
(absent facts to warrant a stop, protective search also lacks a
constitutionally sufficient basis).
3. Respondent Not a Resident of 2964 Building
There is no question that the respondent did not reside at
the 2964 building. The respondent testified that he and his
companions were on their way to visit his sister, who resided on
the fifth floor of the 2964 building. No contrary information
was presented. Officer Hickey never testified that the
respondent did not inform her that he was on his way to his
sister's apartment. Consequently, there is no conflict between
the testimony of the respondent and Officer Hickey on this point.
Officer Hickey was correct that the respondent did not reside in
the building, but there is nothing to call into question the
respondent's statement that his sister lived in that building and
he and his companions were on their way there to visit. Our own
assessment of this fact in relation to the issue before us leads
us to conclude that it added little to the claimed justification
of the weapons frisk on the respondent. See Pitman, 211 Ill. 2d
at 512 (a reviewing court is free to make its own assessment of
the facts in relation to the issues presented).
4. Officers Outnumbered
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Being outnumbered is a factor to consider in assessing the
safety concerns of an officer. See Sorenson, 196 Ill. 2d at 437.
However, more is required than merely counting heads. An officer
must "reasonably suspect[] that he *** is in danger of attack,
[before] he may search the person for weapons." 725 ILCS 5/108-
1.01 (West 2004). In Sorenson, the officer explained that he
faced three occupants of a vehicle, on a dark and isolated road;
the defendant was seen entering and quickly exiting a known drug
house and posed the "quickest threat" to the officer; and
"persons involved with illegal drugs are known to carry weapons."
Sorenson, 196 Ill. 2d at 437. No similar circumstances are
present in this case.
Even from the position that the officers may have been
justified in conducting a Terry stop of the respondent based on
(1) the radio call of an attempted break-in, (2) his presence on
the second floor when his sister lived on the sixth, (3) not
being a resident of the building, and (4) the characterization of
the building as an area of high narcotics and gang activity,
these factors fail to inform us as to any reasonable inference of
criminal conduct on the part of the respondent and his
companions, that put the officers in reasonable apprehension of
an attack. A showing beyond that which is required for an
investigatory stop must be made to justify a weapons frisk. See
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People v. Galvin, 127 Ill. 2d at 165; compare In re S.V., 326
Ill. App. 3d 678 (2001).
This case is unlike S.V., where the investigating officers
responded to multiple calls of gunshots at a particular gang-
infested location. The calls also claimed that the shots were
fired in the course of a "gang fight." The investigating
officers observed the minor and his companions flashing gang
signs of the controlling gang in the area at passing motorists.
The minors were also observed walking away from the location of
the "shots fired" calls. Based on these facts, and the perceived
evasive reaction by the minors, the officers were justified in
the inference they drew that the minors were involved in criminal
activity and " 'were armed and presently dangerous.' " S.V.,
326 Ill. App. 3d at 685, quoting Terry v. Ohio, 392 U.S. at 24,
20 L. Ed. 2d at 908, 88 S. Ct. at 1881.
Unlike in S.V., the crime investigated here was an
"attempted break-in." There was no information that guns or
weapons were present in the course of the attempted break-in.
There was no activity directly observed by the officers, at least
according to Officer Hickey's testimony, that might have raised
the officers' suspicion that the respondent was armed and
dangerous. In fact, unlike in S.V., we question whether a
reasonable inference can be drawn on the facts known to Officer
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Hickey that the respondent and his companions were involved in
the crime being investigated. As the S.V. court cautioned:
"Terry clearly does not permit police officers to routinely frisk
individuals, without concern for whether a particular person
poses a danger." (Emphasis added.) S.V., 326 Ill. App. 3d at
686, 761 N.E.2d 248. In S.V., based on what the officers knew
and what they observed, it was reasonable to suspect that the
minor was involved in the gang shootings and, from that it
necessarily followed, that he posed a threat to the investigating
officers as possibly armed. We see no basis to draw a similar
conclusion as to the respondent here. Compare People v. F.J.,
315 Ill. App. 3d 1053 (no justification for stop and frisk based
on officer's observation that defendant placed unknown object in
his pocket as officer approached following a "gang disturbance"
call).
This case is closer to F.J. than to S.V. In fact, to the
extent F.J. concerned a hand movement by the respondent that
might indicate the concealment of some object in his pocket that
could serve as a weapon, the case before us provides less of a
showing for the frisk.
5. Officer's Fear for Her Safety
The State places the greatest weight for justification of
the frisk on Officer Hickey's testimony that she felt in fear for
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her safety. "In the case of a self-protective search for
weapons, [an officer] must be able to point to particular facts
from which [s]he reasonably inferred that the individual was
armed and dangerous." Sibron v. New York, 392 U.S. 40, 64, 20 L.
Ed. 2d 917, 935, 88 S. Ct. 1889, 1903 (1968). We are mindful
that in determining whether the officer acted reasonably under
the circumstances, "due weight must be given to the specific
reasonable inferences which [an officer] is entitled to draw from
the facts in light of [her] experience." S.V., 326 Ill. App. 3d
at 684. In accordance with the deference owed to the officers,
the question becomes: "What inferences did Officer Hickey draw
from the facts as she understood them to exist, in light of her
experience, to support her claim that she acted reasonably in
such circumstances?"
We have scoured the record to discover what in particular
about the respondent and his friends made Officer Hickey
reasonably suspect they posed a danger to her. We are left
without an objective answer. The record also provides no
testimony from Officer Hickey as to the inferences she drew about
the respondent and his companions. We can draw no reasonable
inferences on her behalf. Officer Hickey did mention the
numerous arrests for drugs in the building where the respondent
was stopped and the likely presence of weapons in drug-related
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arrests. However, as we have already noted, the officers were
not there investigating drug activity. Nor did Officer Hickey
testify to anything the respondent or his friends did to arouse
her suspicion that the respondent was involved in illicit drugs.
That in Officer Hickey's experience there is often a connection
between weapons and drug offenses provides no support for her
claim of danger posed by the respondent as the drugs on the
respondent were not discovered until after the frisk. See
Florida v. J.L., 529 U.S. at 271, 146 L. Ed. 2d at 260, 120 S.
Ct. at 1379 ("reasonableness of official suspicion must be
measured by what the officers knew before they conducted their
search").
Nonetheless, "the officer's subjective belief regarding the
safety of the situation is one of the factors that may be
considered in determining whether a weapons frisk was valid under
Terry. [Citation.]" People v. Flowers, 179 Ill. 2d 257, 264, 688
N.E.2d 626 (1997). Without discounting the officer's testimony
that she "feared for her safety," her "subjective belief" must
have an evidentiary basis in the record to allow it to be
"measured against any standard of objective reasonableness."
People v. Galvin, 127 Ill. 2d at 167. The test remains an
objective one. People v. Galvin, 127 Ill. 2d at 167.
Unfavorable results would certainly occur were it a subjective
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test. "[I]f a police officer may always search any suspect
validly stopped pursuant to Terry v. Ohio by invoking a
subjective fear which will not be measured against any standard
of objective reasonableness based on the totality of the
circumstances known to the officer at the time of the search,
then the officer would effectively be able to insulate his or her
actions from the constitutional safeguards guaranteed to
individuals under the fourth and fourteenth amendments." People
v. Galvin, 127 Ill. 2d at 167.
We also note, as in Galvin, Officer Hickey "was never asked
to specifically state what reasons existed which would lead a
prudent person to reasonably believe that in the circumstances
which existed at the time of the search, an officer would be
warranted in the belief that his safety or that of others was in
danger."5 People v. Galvin, 127 Ill. 2d at 168-69. As in
Galvin, Officer Hickey provided a one-word answer - "yes" - to
whether she was in fear for her safety at the time she did her
"protective pat-down of the minor respondent." Under Galvin, a
5
Officer Hickey was asked whether she "had any reason to
suspect that [the respondent] was armed in any way." The trial
court, however, sustained the State's objection that the question
called "for speculation" and, thus, may have prevented Officer
Hickey from explaining her actions.
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simple answer of "yes" by the investigating officer "does not
rise to the level of specific and articulable facts necessary to
justify a search for weapons." People v. Galvin, 127 Ill. 2d at
169. Neither the historical facts nor the arguments put forth by
the State support converting Officer Hickey's subjective fear
into an objectively reasonable concern for her safety. We are
also mindful of the concern expressed by defense counsel were we
to find otherwise: "[E]veryone that lives there at any point is
subject[] to a reasonable search and seizure by the officers ***"
based upon an officer's fear for his or her safety because the
building is characterized as a "high crime area." Such a holding
would effectively "insulate [an officer's] actions from the
constitutional safeguards guaranteed to individuals under the
fourth and fourteenth amendments." Galvin, 127 Ill. 2d at 167.
It would "set in motion an intrusive, embarrassing police search"
simply by being a resident of a high crime area where the
officer's presence puts him or her in fear for his or her safety.
Florida v. J.L., 529 U.S. at 272-73, 146 L. Ed. 2d at 261-62, 120
S. Ct. at 1379-80 (concern expressed in the context of rejecting
the "firearm exception" to the standard Terry analysis because
such an exception would lead to giving police "discretion to
frisk based on bare-boned tips about narcotics" in light of the
nexus between large quantities of drugs and the presence of
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weapons).
Officer Hickey had to perceive, in the conduct she observed
and in light of the circumstances she was presented with, a basis
to reasonably conclude that the respondent "might be armed and
dangerous." S.V., 326 Ill. App. 3d at 687. We find no such
justification in the record. As the Supreme Court noted in
Terry: "The scheme of the Fourth Amendment becomes meaningful
only when it is assured that at some point the conduct of those
charged with enforcing the laws can be subjected to the more
detached, neutral scrutiny of a judge who must evaluate the
reasonableness of the particular search or seizure in light of
the particular circumstances." Terry at 392 U.S. at 21, 20 L.
Ed. 2d at 906, 88 S. Ct. at 1880. What amounted to no more than
a subjective fear on the part of Officer Hickey was an inadequate
basis to conclude that her action to protect herself by
conducting a weapons frisk on the respondent was reasonable. The
intrusion of the weapons frisk of the respondent was not
constitutionally permissible under Terry.
D. Trial Court's Terry Analysis
Finally, the trial court based its decision in part on its
understanding of a Terry analysis.
"[T]he [Terry] analysis and search analysis
is not a two-prong analysis, it's a three-
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prong analysis of whether [there's]
sufficient basis for the stop. Second,
whether there's a sufficient basis for a
limited search. And third, whether there's a
sufficient basis for a weapons frisk."
The trial court concluded that under the circumstances present
here, "a limited search [was justified] on the officer's
reasonable belief that they could be in danger."
The trial court was wrong in its understanding. A "limited
search" is a "weapons frisk" under Terry. There is no "three-
prong analysis" under Terry. "[An officer] 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." (Emphasis added.) Terry at 392 U.S. at 30, 20 L. Ed. 2d
at 911, 88 S. Ct. at 1884-85. There is no search more limited
than a weapons frisk under Terry. "Nothing in Terry can be
understood to allow a generalized 'cursory search for weapons'
or, indeed, any search whatever for anything but weapons."
Ybarra v Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 247, 100
S. Ct. 338, 343 (1979).
The trial court's own assessment that the circumstances of
the stop and frisk justified no more than a "limited search"
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raises the question whether the trial court rejected the
circumstances as being sufficient to warrant a "weapons frisk"
under her three-prong analysis. Nonetheless, we rely on our
assessment of the facts in reaching our holding that the
intrusion of a weapons search on the respondent was not
justified.
CONCLUSION
Accordingly, we find that the circuit court erred in denying
the respondent's motion to quash arrest and suppress evidence.
Under the facts of this case, the sum of the five factors relied
upon by the trial court is no greater than the weight to be given
to each individual factor. Under the totality of the
circumstances in this case, the relief sought by the respondent
should have been granted.
Reversed and remanded.
McBRIDE, J., concurs.
CAHILL, J., dissents.
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PRESIDING JUSTICE CAHILL, dissenting:
I respectfully dissent. I believe the majority discussion of the standard of review (slip op.
at 7-9) is selective and misleading. The trial court and the prosecution are left in the dark as to
how the majority reasoned its way to a reversal within analytical guidelines established by our
supreme court. Compare the majority traversal of the standard of review with the following:
"The defendant challenges the propriety of the trial court's denial of his
motion to suppress. Traditionally, this court has stated that when a trial court's
ruling on a motion to suppress evidence involves factual determinations and
credibility assessments, the ultimate ruling will not be disturbed on appeal unless it
is manifestly erroneous. See People v. Buss, 187 Ill. 2d 144, 204[, 718 N.E.2d 1
(1999)]; People v. Gonzalez, 184 Ill. 2d 402, 411-12[, 704 N.E.2d 375 (1998)].
This deferential standard of review is grounded in the reality that the trial court is
in a superior position to determine and weigh the credibility of witnesses, observe
the witnesses' demeanor, and resolve conflicts in the witnesses' testimony.
Gonzalez, 184 Ill. 2d at 412. Most recently, however, this court has applied the de
novo standard of review to the ultimate ruling on a motion to suppress, relying on
the Supreme Court's decision in Ornelas v. United States, 517 U.S. 690, 134 L.
Ed. 2d 911, 116 S. Ct. 1657 (1996). See In re G.O., 191 Ill. 2d 37, 46-50[, 727
N.E.2d 1003 (2000)]. In Ornelas, the Court held that when an appellate court
reviews a ruling on a motion to suppress involving a question of probable cause or
reasonable suspicion, the reviewing court should review de novo the ultimate
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finding with respect to probable cause or reasonable suspicion. Ornelas, 517 U.S.
at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. The Court cautioned, however,
that findings of historical fact should be reviewed only for clear error and that
reviewing courts must give due weight to inferences drawn from those facts by the
fact finder. Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663; In
re G.O., 191 Ill. 2d at 47-48[, 727 N.E.2d 1003]. Accordingly, we will accord
great deference to the trial court's factual findings, and we will reverse those
findings only if they are against the manifest weight of the evidence; however, we
will review de novo the ultimate question of the defendant's legal challenge to the
denial of his motion to suppress. In re G.O., 191 Ill. 2d at 50[, 727 N.E.2d
1003]." People v. Sorenson, 196 Ill. 2d 425, 430-31, 752 N.E.2d 1078 (2001).
I suppose the majority would argue that what it has written is an accurate paraphrase of
Sorenson. I strongly disagree. Absent from the paraphrase is a requirement that trial court
findings of historical fact are to be reviewed only for clear error. Absent as well is the supreme
court's choice of words: “great deference" and “due weight to inferences." I come away from this
opinion with the definite impression that the majority has reweighed the historical facts de novo.
There is nothing in this opinion that speaks to what factual findings of the trial court were clearly
in error or against the manifest weight of the evidence.
I am also troubled by the footnotes and to what end they have been inserted. The first,
ruminating on the word “loitering,” announces it will be taken as simply “descriptive of [the
group's] activity.” Slip op. at 2 n.1. Since no one has suggested a darker meaning, I do not see
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the point of the observation.
The second is more troublesome. It states that the majority “wonders” whether the radio
call that prompted the police investigation was motivated by someone’s desire to “extract” young
men from a place where they were not wanted. Slip op. at 12-13 n.2. I am baffled by this
gratuitous “wondering” when there is nothing in the record to suggest a darker meaning for the
radio call. I suppose one could go on wondering de hors the record: that the complaint that led to
the radio dispatch was from a resident weary of young men going floor to floor in the building,
selling cocaine.
Footnotes 3 and 4 (slip op. at 13-14) are interesting commentaries on small corners of our
fourth amendment jurisprudence, but if they are relevant to the majority analysis, the majority
should say so, rather than leaving us to wonder. Footnote 4 ends with a clue: "Officer Hickey did
not testify to anything the respondent did to arouse her suspicion, except perhaps being present on
the second floor.” Slip op. at 14 n.4. The problem with this clue is that Officer Hickey had sped
to the second floor in response to a radio call that there was a crime in progress and that the
defendant was at the scene.
Finally, the amendment to our fourth amendment jurisprudence announced by Terry v.
Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), was prompted in no small measure by
a recognition that our law enforcement officers do their work in an increasingly dangerous and
violent world:
"The crux of this case, however, is not the propriety of Officer McFadden's
taking steps to investigate petitioner's suspicious behavior, but rather, whether
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there was justification for McFadden's invasion of Terry's personal security by
searching him for weapons in the course of that investigation. We are now
concerned with more than the governmental interest in investigating crime; in
addition, there is the more immediate interest of the police officer in taking steps to
assure himself that the person with whom he is dealing is not armed with a weapon
that could unexpectedly and fatally be used against him. Certainly it would be
unreasonable to require that police officers take unnecessary risks in the
performance of their duties. American criminals have a long tradition of armed
violence, and every year in this country many law enforcement officers are killed in
the line of duty, and thousands more are wounded. Virtually all of these deaths
and a substantial portion of the injuries are inflicted with guns and knives.
In view of these facts, we cannot blind ourselves to the need for law
enforcement officers to protect themselves and other prospective victims of
violence in situations where they may lack probable cause for an arrest. When an
officer is justified in believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to
others, it would appear to be clearly unreasonable to deny the officer the power to
take necessary measures to determine whether the person is in fact carrying a
weapon and to neutralize the threat of physical harm." Terry, 392 U.S. at 23-24,
20 L. Ed. 2d at 907-08, 88 S. Ct. at 1881.
The majority here spends some little time suggesting that the trial judge in ruling from the
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bench was wrong in the way she articulated the steps to be undertaken in a Terry analysis. This is
partly true, but the majority is holding the trial judge to an unrealistic standard of precision when
ruling in real time on a motion to suppress. The trial judge got the historical facts right and
concluded: “I believe it was a limited search based on the officer’s reasonable belief that [she]
could be in danger.”
The majority discounts the officer’s statement that she believed herself to be in danger
because the predicate for that belief is not fleshed out to this court's satisfaction. But the trial
court was satisfied based on the historical facts, and under a proper standard of review, so should
we be. Based on the record, I believe that a prudent police officer would and should have done
exactly what Officer Hickey did. I would affirm the trial court.
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