People v. Keys ( 2007 )

NO. 4-06-0378 Filed 7/31/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
RIO P. KEYS, ) No. 05CF219
Defendant-Appellant. )
) Honorable
) Harold J. Frobish,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In March 2006, the trial court convicted defendant, Rio
P. Keys, of unlawful possession of a controlled substance
(heroin) (720 ILCS 570/402(c) (West 2004)) and obstructing a
peace officer (720 ILCS 5/31-1(a) (West 2004)). In April 2006,
the court sentenced defendant to a six-year prison term on the
unlawful possession count. Defendant appeals, arguing the court
erred in denying his motion to suppress the evidence recovered as
the result of his unconstitutional temporary seizure and pat-down
search. The State argues that (1) the temporary seizure and pat-
down search were constitutionally valid; and, even if the
defendant's initial seizure was unconstitutional, (2) defendant's
actions of running from the police and abandoning the illegal
drugs made them admissible. We affirm.
As the parties are aware of the facts in this case, we
discuss those facts only to the extent necessary to resolve the
issue in this case. Between approximately 8 and 8:30 a.m. on
August 24, 2005, a black vehicle with four black males inside
pulled up alongside Sergeant Jim Roberts. One of the black males
stuck a cell phone out the window of the vehicle and took a
picture of Sergeant Roberts. Not long thereafter, a man informed
the police that four black males in a black vehicle approached
him asking where they could find Willie B. Smith and Amory
Millsap. The police knew Willie B. Smith and Amory Millsap as
drug users.
Sergeant Roberts found the taking of his photograph
suspicious and informed the other police officers on duty of the
incident at the 3 p.m. shift change. Approximately one hour
after the shift change, at about 4 p.m., Officer Robert Bohm saw
Willie Smith with two black males in his vehicle, one of whom was
the defendant and the other was Tremaine Moore. After Officer
Bohm began following Smith, Smith voluntarily parked his vehicle
and Smith and his two companions voluntarily got out of the
vehicle. Officer Bohm asked Smith if the two men with him had
been looking for him earlier. Smith said they had.
Officer John Cox arrived on the scene about this time.
Smith told Officer Cox that defendant and Moore had been dropped
off by two other black males earlier and they were going to a
party for a friend of theirs who was leaving for Iraq. Smith
also told Officer Cox defendant and Moore were from the Kankakee
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area. Officer Bohm asked defendant and the other black male for
their names and dates of birth and ran a warrant check on their
names. Neither individual had any outstanding warrants.
Defendant had on a very baggy T-shirt and baggy pants. Officer
Cox testified defendant was "pretty beefy" and looked like he
could fight if he so chose.
Officer Bohm asked Moore for consent to do a pat-down
search. Moore consented. Officer Cox did not ask defendant's
consent to do a pat-down search. Officer Cox asked defendant if
he had anything on him. Defendant replied he did not. Officer
Cox then told defendant to raise his hands above him and
interlace his fingers, which defendant did. Defendant also
spread his legs for Officer Cox. Officer Cox then put his right
hand on defendant's interlaced fingers. At that point, defendant
broke free and ran. While Officer Cox was chasing defendant, he
lost sight of defendant for a few seconds before apprehending
him. Officer Cox went back and looked in the area where he lost
sight of defendant and found three bags containing heroin. The
trial court denied defendant's motion to suppress these drugs.
A trial court's ruling on a motion to suppress presents
a mixed question of law and fact. People v. Pitman, 211 Ill. 2d
502, 512, 813 N.E.2d 93, 100 (2004). We will not disturb a trial
court's findings of fact unless they are against the manifest
weight of the evidence, but the ultimate legal determination as
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to whether the motion to suppress should have been granted based
on the court's factual findings is a question of law, which we
review de novo. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 100-
01. Defendant contests neither the facts to which the police
officers testified at the suppression hearing nor their
credibility. Defendant only argues that the trial court erred in
finding the police did not violate his constitutional rights by
seizing him and performing a pat-down search of his person based
on the facts to which the officers testified. As a result, we
review this case de novo. We may affirm the circuit court's
judgment on any basis established by the record. People v.
Johnson, 208 Ill. 2d 118, 129, 803 N.E.2d 442, 449 (2003).
We first examine the State's argument that the drugs
were admissible because defendant resisted a police officer and
then abandoned the drugs while he was running from that police
officer. Evidence discovered as a result of an unconstitutional
Terry stop must generally be excluded. See Terry v. Ohio, 392
U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). However,
according to the State, even assuming arguendo that the police
officers did not have a reasonable suspicion to seize and pat
down defendant, the drugs were still admissible. According to
the State, the drugs in this case were not obtained through the
exploitation of the seizure and attempted pat down but were
discovered as a result of defendant escaping from the police
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officers and abandoning the drugs. As a result, according to the
State, the drugs are admissible regardless of whether the initial
seizure and attempted pat-down search were constitutional.
The State primarily relies on the Supreme Court of
Nevada's decision in State v. Lisenbee, 116 Nev. 1124, 13 P.3d
947 (2000), to support its argument that the drugs should be
admissible. However, dicta from the United States Supreme
Court's opinion in California v. Hodari D., 499 U.S. 621, 113 L.
Ed. 2d 690, 111 S. Ct. 1547 (1991), which was relied on in part
by the Nevada Supreme Court in Lisenbee, is even more persuasive.
In Hodari, the Court stated:
"To say that an arrest is effected by
the slightest application of physical force,
despite the arrestee's escape, is not to say
that for [f]ourth [a]mendment purposes there
is a continuing arrest during the period of
fugitivity. If, for example, [Officer]
Pertoso had laid his hands upon Hodari to
arrest him, but Hodari had broken away and
had then cast away the cocaine, it would
hardly be realistic to say that [the]
disclosure had been made during the course of
an arrest. Cf. Thompson v. Whitman, [85
U.S.] (18 Wall.) 457, 471[, 21 L. Ed. 897,
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902] (1874) ('A seizure is a single act, and
not a continuous fact')." (Emphasis in
original.) Hodari, 499 U.S. at 625, 113 L.
Ed. 2d at 696-97, 111 S. Ct. at 1550.
Applying the Court's reasoning, we find it unrealistic in our
case to say defendant abandoned the drugs in question during his
seizure.
In Lisenbee, the police were looking for a burglary
suspect and observed the defendant, who resembled the suspect.
Lisenbee, 116 Nev. at 1124, 13 P.3d at 948. The police officers
approached the defendant and asked for identification. The
defendant produced identification from a Colorado prison.
Lisenbee, 116 Nev. at 1126, 13 P.3d at 948-49. The defendant
then voluntarily lifted up his T-shirt to show the police
officers a small legal knife and a cell phone clipped to his
belt. Lisenbee, 116 Nev. at 1126, 13 P.3d at 949. One of the
police officers tried to grab the knife and hold the defendant's
arm so that a pat-down search could be performed. Lisenbee, 116
Nev. at 1126, 13 P.3d at 949.
The officers and the defendant started fighting, and
the defendant ran from the officers. The defendant was then
tackled, but he got away again. The officers lost sight of the
defendant for awhile. He was eventually found lying on the
ground and voluntarily submitted to police custody. Lisenbee,
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116 Nev. at 1126, 13 P.3d at 949. The officers then retraced
the defendant's path and found a large bag containing five
smaller bags of methamphetamine. Lisenbee, 116 Nev. at 1126, 13
P.3d at 949. The defendant argued that the drugs were
inadmissible as they were illegally obtained by the police
because the police officers' actions in detaining the defendant
and grabbing for his knife amounted to an illegal seizure.
The Supreme Court of Nevada found the defendant's
initial detention by the police was unreasonable. Lisenbee, 116
Nev. at 1129, 13 P.3d at 950. However, the Lisenbee court went
on to state that "flight after a seizure occurs is an effectual
end to that seizure. Thus, any conduct during flight should be
considered apart from the illegal police action." Lisenbee, 116
Nev. at 1130, 13 P.3d at 951. As a result, the court found the
drugs the defendant abandoned after he broke free and ran from
the police officers were not obtained in violation of the fourth
amendment. Lisenbee, 116 Nev. at 1130, 13 P.3d at 951. We agree
with this reasoning and find the drugs in this case were
admissible as evidence even assuming arguendo the initial seizure
of defendant was unlawful.
Defendant argues we should not follow Lisenbee because
it is based on reasoning that has been consistently rejected by
Illinois courts and because it is based on a Nevada statute that
is different from Illinois law. All the Illinois cases defendant
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cites in an attempt to show the reasoning in Lisenbee is not in
accord with Illinois case law, as well as the majority of the
other state and federal decisions cited, are distinguishable from
the instant case because the defendants in those cases abandoned
their drugs while they were seized by the police. See People v.
Roebuck, 25 Ill. 2d 108, 110, 183 N.E.2d 166, 168 (1962)
("Immediately following the arrest, as one of the officers was
attempting to search [the] defendant, the other officer saw [the]
defendant throw an object into a parked car. The object was
retrieved and was later identified as heroin"); People v. Wilson,
141 Ill. App. 3d 156, 158, 490 N.E.2d 701, 702 (1986) (First
District, "the arresting officer testified that [the] defendant
was stopped, and, as the officers exited their car with guns
drawn, [the] defendant dropped the duffel bag he was carrying and
raised his hands"); People v. Cox, 295 Ill. App. 3d 666, 673, 693
N.E.2d 483, 487 (1998) (Fourth District, "the manifest weight of
the evidence established that [the] defendant was stopped, asked
to place his hands on the squad car, warned he was going to be
searched for the wallet, and then attempted to discard the
cocaine"); United States v. Beck, 602 F.2d 726, 729-30 (5th Cir.
1979) (after the stop was made, and while the police officer was
pulling his squad car in front of the vehicle the defendant was
in, the police officer saw a marijuana cigarette thrown from the
defendant's window); Commonwealth of Pennsylvania v. Jackson, 548
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Pa. 484, 486, 698 A.2d 571, 572 (1997) (court answered in the
negative "the question of whether an article abandoned by the
appellant during the course of the stop and frisk may be
admissible into evidence"); State v. Bennett, 430 A.2d 424, 426
(R.I. 1981) (the defendant dropped paper bag containing marijuana
to the ground after police told him to stop because they wanted
to talk to him); State v. Dineen, 296 N.W.2d 421, 422 (Minn.
1980) (the defendant fled from site of seizure but left drugs
there at the site of the seizure).
In the case at bar, the drugs were not found by the
police during the initial, arguably unlawful, seizure. They were
found because defendant abandoned them after ending the initial
seizure by escaping from the police officers. Defendant cites
People v. Moore, 286 Ill. App. 3d 649, 676 N.E.2d 700 (1997)
(Third District), for the proposition that he did not violate any
law by escaping from the police officers. We find Moore
inapplicable to this case. First, Moore does not stand for the
proposition that a suspect who has been seized unlawfully by
police officers can resist that seizure and escape from the
police officers without violating any laws. Second, whether
defendant violated any law by escaping from the police officer is
irrelevant in this case. Rather, another fact is relevant: that
he ended the seizure by escaping from the police officer before
he abandoned the drugs in question.
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Based on our analysis, we need not determine if the
initial seizure in this case was lawful. While unnecessary to
our decision in this case, we note that we agree with the Nevada
Supreme Court's statement that public policy "supports courts of
law determining the lawfulness of seizures or arrests," rather
than suspected criminals on the street making those
determinations. Lisenbee, 116 Nev. at 1130, 13 P.3d at 951.
This policy benefits both the State and defendants. The State
benefits by keeping police officers from having to engage in
dangerous pursuits, and the defendants benefit because they can
move to suppress evidence found during an illegal seizure. For
example, in the instant case, if the police officers had found
the drugs on defendant's person during the initial seizure and
this court agreed that the initial seizure was unlawful, the
drugs would have been inadmissible.
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $75
statutory assessment as cost of this appeal.
Affirmed.
MYERSCOUGH and TURNER, JJ., concur.
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