People v. Kveton ( 2005 )

No. 2--04--0204

_________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Du Page County.

)

Plaintiff-Appellee, )

)

v. ) No. 03--CF--244

)

KEVIN M. KVETON, ) Honorable

) Perry R. Thompson,

Defendant-Appellant. ) Judge, Presiding.

_________________________________________________________________________________

JUSTICE BYRNE delivered the opinion of the court:

Based on an informant's tip, the police stopped defendant, Kevin M. Kveton, outside his home and asked to search a backpack he was carrying.  Defendant allowed the search, which disclosed a lockbox containing cannabis.  The police then entered defendant 's home, searched his bedroom, and discovered additional cannabis in a second backpack.  The State charged defendant with possessing 30 to 500 grams of cannabis with the intent to deliver (720 ILCS 550/5(d) (West 2004)).  Defendant, who was a high school student at the time of the arrest, moved to quash the arrest and suppress the evidence, arguing that the police unlawfully seized and searched him without a warrant, probable cause, reasonable suspicion, or voluntary consent.  The trial court denied the motion, and following a stipulated bench trial, defendant was found guilty.  The trial court imposed a 60-day jail sentence and a street value fine of $4,760.

On appeal, defendant renews his argument that he was unconstitutionally seized and searched, and he also argues that he is entitled to a $10 credit for the two days he spent in pretrial custody.  The State responds that the entire encounter was voluntary and consensual, and therefore, defendant 's constitutional rights were not implicated.  The State concedes that defendant is entitled to the $10 credit against his fine.

We recognize that this is a close case, but we conclude that defendant 's consent to the initial encounter and ensuing search outside was an involuntary acquiescence to police authority that violated defendant 's constitutional rights.  We further conclude that, even if the first search was constitutional, defendant's consent to the second search in his home was involuntary because he was under arrest at that point.

We emphasize that the State has never raised the potentially meritorious argument that the informant's tip justified a seizure of defendant .  In the trial and appellate courts, the State was afforded multiple opportunities to present the argument but chose not to do so.  Therefore, we can surmise only that the State has knowingly abandoned the theory that the tip justified a brief detention for investigation.  In arguing only that defendant consented to the entire event, the State essentially concedes that the police officers had no reason to believe that defendant had committed a crime at the time of the encounter.  Because the contraband discovered outside and inside defendant 's home was inadmissible, we conclude that the trial court erred in denying defendant 's motion to suppress the evidence and quash the arrest.  Therefore, we reverse the judgment and the underlying order denying the motion, and we remand the cause for further proceedings consistent with this opinion.

FACTS

At the hearing on the suppression motion, the defense introduced the testimony of defendant and Travis Rossow, his friend and classmate who was present at the time of the search.  Defendant testified that, at 4:30 p.m. on January 24, 2002, he and Rossow were walking from the front door of defendant's house to Rossow's car, which was facing south on the street in front of defendant's house.  An unmarked police car, which was traveling northbound toward them at 35 to 40 miles per hour, crossed into the oncoming lane, and "came to a screeching halt" in front of Rossow's car.  The police car's front bumper faced the front bumper of Rossow's car.  Approximately 30 seconds later, a marked squad car arrived from the other direction and parked behind Rossow's car.  Defendant and Rossow had not yet entered Rossow's car, but defendant believed that they could not leave in the car because the police cars blocked its path.

Two police officers exited the unmarked police car, and according to defendant , the officers were in uniform.  Officer Scott Klecka, "in a directive voice," told defendant to "get over here."  Defendant knew Officer Klecka and had spoken to him twice before because the officer was stationed at defendant 's high school.  Defendant had not experienced any "hard times" with Officer Klecka, but the officer occasionally had raised his voice to defendant at school before the date of the arrest.

Defendant walked toward Officer Klecka as directed.  The officer did not draw his handgun or handcuffs or use profanity, but he said that he knew what defendant "was up to" and asked what the backpack contained.  Defendant responded, "I think you know what's in the bag."  As defendant was standing near the driver's-side front tire of the police car, Officer Klecka told defendant that he was under arrest.  Officer Klecka directed defendant to open the backpack, and defendant believed that he had no choice but to comply.  At one point, Officer Klecka also conducted a pat-down search of defendant .  During defendant 's encounter with Officer Klecka, Rossow was conversing with the second officer on the other side of the unmarked police car.

Because defendant preferred not to open the backpack in view of onlookers, he asked whether he could open it elsewhere.  Officer Klecka agreed, opened the rear door of the police car, and assisted defendant in placing the bag in the backseat.  Defendant unzipped the backpack and Officer Klecka examined the inside.  Officer Klecka removed a lockbox, which had not been visible when the bag was closed.  Officer Klecka directed defendant to unlock the box.  Defendant removed a key from his chain, gave it to Officer Klecka, and the officer used it to open the box, which contained cannabis.

One of the officers asked defendant , "[W]hat's in the house[?]" and defendant dropped his head without saying anything.  The officer then said "let's get going" and led defendant inside the house, where the three officers searched for more contraband.  Defendant denied consenting to the search of the house.  Officer Klecka handcuffed defendant and placed him in the police car.

Rossow, who also knew Officer Klecka from the school, generally corroborated defendant 's testimony.  Rossow testified that Officer Klecka parked the police car at a 45-degree angle so that it faced his car.  Rossow was entering his car when Officer Klecka exited his vehicle "pretty fast" and shouted defendant 's name in a "loud, demanding" tone.  Rossow paused, and Officer Latronica walked toward him and began questioning him about his identity, residence, and plans for the day.  Meanwhile, Officer Klecka called defendant over to him, and defendant complied.  Officer Klecka told defendant , "you know you are under arrest, right?"  Defendant looked down and did not answer.  Officer Klecka then asked defendant , "[W]hat's in your backpack[?]" and directed defendant to open it.  Defendant asked whether he should open the bag in the open, and the officer responded by leading him to the rear seat of the police car, where they opened it and removed the lockbox.  Officer Klecka asked defendant for the key to the lockbox, defendant produced it, and the officer opened the box.  Rossow testified that he was within five or six feet of defendant and Officer Klecka and could observe and overhear their conversation.

When Officer Klecka finished searching the lockbox, a second marked police car arrived and parked behind Rossow's car.  Before the officers entered defendant 's house, one of them told Rossow, "[y]ou are free to go."  Rossow did not feel free to leave until he was told he could do so.  Rossow's interaction with the police lasted 10 to 15 minutes.

Officer Klecka was the only witness to testify for the State.  On January 24, 2003, Officer Klecka arrested Vincent Manna, a student at defendant 's school, for possession of cannabis.  Manna told Officer Klecka that the cannabis "wasn't his" and that he "usually buys from [defendant]."  Manna also said that defendant usually kept a quarter- to one-half-pound of cannabis stored in clear plastic bags in a beige lockbox in his bedroom at home.  Manna told Officer Klecka that he had most recently seen cannabis in defendant 's bedroom four days earlier.

Based on Manna's tip, Officer Klecka and Officer Latronica drove directly to defendant 's home.  Officer Klecka testified that, at the time he left the station, he decided that he would stop defendant if he was on foot but would not stop him if he was in a car.  When the officers arrived, they found defendant and Rossow walking across the front yard toward Rossow's car.

Officer Klecka pulled his car to the curb so that it faced Rossow's car but still allowed Rossow to pull out.  The cars were positioned so that the width of the driveway plus one car length separated them.  Officer Klecka exited the car and, in a normal tone, told defendant , "I want to talk to you."  The officer testified that defendant was free to leave and not under arrest at that time.  If defendant had declined to speak with the officers, they would have allowed him to leave.  Officer Klecka remained standing next to his car door, and defendant walked toward him while carrying a backpack.

Officer Klecka told defendant that he knew "what he ha[d] been doing," and defendant lowered his head and sighed deeply.  Officer Klecka asked defendant "how much pot he had with him," and defendant nodded his head and admitted that he was carrying some in the backpack.  Meanwhile, Officer Latronica was speaking with Rossow near Rossow's car.

After acknowledging possession of the cannabis, defendant asked, "[C]ould we go somewhere else so my sister doesn't see this[?]"  Officer Klecka said "no."  Defendant then asked whether he could open the backpack in the police car, and Officer Klecka agreed and opened the rear car door.  Defendant opened the bag in the rear seat of the police car, removed the lockbox, retrieved a key from his key chain, and unlocked the box.  The officer denied ordering defendant to open the box.  The lockbox contained a digital scale, money, and clear plastic bags that contained something that appeared to be cannabis.

Officer Klecka closed the lockbox and backpack, placed them in the trunk of his car, and asked defendant how much cannabis was inside his house.  Defendant responded that there was one "bong" inside but that there was no more cannabis.  At that point, Rossow drove away, and Officer Malatia arrived in a marked police car as backup.  Officer Klecka believed that defendant was under arrest.

According to Officer Klecka, defendant led the three officers into the house.  Defendant never told the officers that they could not search the house.  Officer Klecka followed defendant to an upstairs bedroom, where he told his sister that he had been "selling weed" and was sorry.  Officers Latronica and Malatia discovered a green leafy substance in defendant 's bedroom.  Officer Klecka testified that, during the entire encounter, he did not raise his voice or "command" defendant to do anything.  Defendant was calm, compliant, and nonargumentative.

On cross-examination, Officer Klecka admitted that Manna did not say whether defendant possessed any contraband on the date of the arrest.  Officer Klecka also admitted that the lockbox was not visible until defendant opened the backpack.  Officer Klecka stated that defendant was under arrest at the moment he saw the plastic bags of cannabis inside the lockbox, but he admitted that defendant was not admonished of his Miranda rights at that time.  Nothing in the record indicates that defendant was ever informed of his Miranda rights.

Manna testified for the defense as a rebuttal witness.  Manna stated that he was summoned to the dean's office at his school on January 24, 2003.  Manna was transported to the police station, where he spoke with Officer Klecka about some cannabis that was discovered in his locker.  Manna admitted to the officer that he had been dealing cannabis at school, and he identified defendant as his "competition."  Manna was arrested.  Manna denied telling Officer Klecka that he saw drugs in defendant 's home four days before the arrest.  In fact, Manna testified that he truthfully told Officer Klecka that he most recently saw defendant with cannabis three months before the date of defendant 's arrest.

The trial court denied the motion to suppress the evidence and quash the arrest.  The court found that Manna's tip "simply [got] the detective to the scene."  The court concluded that, although the evidence did not support a stop pursuant to Terry v. Ohio , 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), defendant was not seized and the search was proper because the encounter was voluntary and consensual.  The trial court made the following oral finding:

"Clearly, if [Officer Klecka] did detain [defendant], [the officer] would have needed a Terry basis to do this and it's not here.  So it has to be a voluntary encounter, casual encounter, and it's your burden, [defense counsel].  I hold that you did not meet it.  I'll deny your motion."

Defendant waived his right to a jury, and the parties stipulated that certain evidence would be presented at trial.  In considering a ruling on a motion to suppress, a reviewing court may consider evidence presented at trial as well as the evidence that was presented at the suppression hearing.   People v. Serio , 357 Ill. App. 3d 806, 814 (2005).  Thus, we briefly summarize the stipulated evidence because it is relevant to our review of the suppression motion.

Officer Klecka would supplement his testimony from the suppression hearing with testimony that defendant consented to the search of his bedroom after disclosing the cannabis in the lockbox outside.  On defendant 's bedroom floor, Officers Klecka, Latronica, and Malatia discovered a second backpack, which contained two additional plastic "baggies" of cannabis and a coffee grinder.  Defendant initially denied ownership of the cannabis in the second backpack, but he "basically admitted that [it] was in fact his cannabis and he had forgotten it was in the bedroom."

Defendant was transported to the Lombard police department, where he gave oral and written statements admitting that he sold cannabis primarily to his friends to help them "stay away" from harder drugs like cocaine.  Defendant had one or two sources from whom he purchased a quarter- to one-half-pound of cannabis at a time.

Jean Kinnane, a forensic scientist with the Du Page County Crime Lab, would testify that the contents of the plastic baggies from the two backpacks tested positive for cannabis.  The total weight of the cannabis was 460 grams.  Kinnane did not specify the separate weights of cannabis discovered in the two searches.  Based on the stipulation, the trial court found defendant guilty and imposed the sentence.  This timely appeal followed.

ANALYSIS

On appeal, defendant argues that the cannabis was inadmissible as the fruit of his involuntary acquiescence to a showing of police authority.  Defendant further argues that the informant's tip gave the arresting officer neither probable cause to arrest nor reasonable and articulable suspicion to stop defendant .  The State's sole argument on appeal is that defendant voluntarily consented to the initial stop and the two searches, which yielded contraband outside and inside the home.  As a final matter, defendant argues, and the State agrees, that defendant is entitled to a $10 credit toward his fine for the two days he spent in pretrial custody.

A. Standard of Review

In reviewing a circuit court's ruling on a motion to suppress evidence, mixed questions of law and fact are presented.  A reviewing court will uphold findings of historical fact made by the circuit court unless such findings are against the manifest weight of the evidence.  This deferential standard of review is grounded in the reality that the circuit court is in a superior position to determine and weigh the credibility of the witnesses, observe the witnesses' demeanor, and resolve conflicts in their testimony.  However, a reviewing court remains free to undertake its own assessment of the facts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted.  Accordingly, we review de novo the ultimate question of whether the evidence should be suppressed.   People v. Jones , 215 Ill. 2d 261, 268 (2005).

In this case, the trial court did not expressly assess the credibility of the witnesses at the hearing on the suppression motion.  For instance, Manna and Officer Klecka offered conflicting testimony as to the substance of Manna's tip: Manna testified that he had last seen defendant with cannabis more than three months before the arrest, while Officer Klecka testified that Manna told him that defendant had cannabis in his bedroom as recently as four days before the arrest.  The trial court disregarded the inconsistency, finding that Manna's tip "simply got the detective to the scene" to facilitate a consensual encounter.  Also, the court did not expressly determine whether Officer Klecka blocked Rossow's car, but the court stated that Officer Klecka "push[ed] the limit of what is a defense versus a voluntary encounter on the street."  The court's ultimate ruling supports the inference that Officer Klecka was found to be more credible than defendant and Rossow.

Defendant concedes that the trial court was not manifestly erroneous in crediting Officer Klecka.  For purposes of this appeal, defendant cites the officer's version of the events while disputing the ultimate issue of whether he voluntarily consented to any part of the encounter.  In light of defendant 's concession in this case, we construe the evidence in favor of the State.  However, we review the trial court's ultimate determinations de novo .

B. Burden of Proof

Both the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, §6) protect individuals from unreasonable searches and seizures.  In interpreting the search and seizure provision of the Illinois Constitution, Illinois courts look to the United States Supreme Court's fourth amendment jurisprudence.   People v. Smith , 214 Ill. 2d 338, 349 (2005).

Interaction between the citizenry and the police can be divided into nonconsensual and consensual encounters.   People v. Murray , 137 Ill. 2d 382, 387 (1990); People v. Luedemann , 357 Ill. App. 3d 411, 416 (2005).  The former consist of arrests and Terry stops.   Murray , 137 Ill. 2d at 387; Luedemann , 357 Ill. App. 3d at 416.  The latter do not infringe upon any interest protected by the fourth amendment and therefore require no justification.   Luedemann , 357 Ill. App. 3d at 416.

The arrest of a citizen must be supported by probable cause.   People v. Gherna , 203 Ill. 2d 165, 176 (2003).  "Probable cause exists when the facts and circumstances known by the arresting officer are sufficient to warrant a reasonable person's belief that the arrested individual has committed an offense."   Gherna , 203 Ill. 2d at 176.  A Terry stop of a citizen is a temporary investigative seizure that is permitted within the parameters of the fourth amendment when the officer has a reasonable, articulable suspicion of criminal activity, and such suspicion amounts to more than a mere " 'hunch.' "   Gherna , 203 Ill. 2d at 177, quoting Terry , 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.

In this case, the State did not argue in the trial court--and does not argue on appeal--that the informant's tip or any other evidence gave the police probable cause to arrest or reasonable suspicion to initiate a Terry stop of defendant .  In fact, the State expressly concedes that "this case does not involve a Terry situation."  The trial court reached the same conclusion.  On appeal, the parties frame the fourth amendment issue by agreeing that the voluntariness of defendant 's consent is dispositive of the issue of the contraband's admissibility.

It is well settled that an individual may voluntarily consent to a search, thereby eliminating the need for probable cause and a warrant.   Smith , 214 Ill. 2d at 349.  The validity of a consent search depends on the voluntariness of the consent.   People v. Anthony , 198 Ill. 2d 194, 202 (2001).  Whether consent to a search was voluntary is a question of fact determined from the totality of the circumstances.   Smith , 214 Ill. 2d at 350.

Consent is voluntary only if "received, not extracted 'by explicit or implicit means, by implied threat or covert force.' " Anthony , 198 Ill. 2d at 202, quoting Schneckloth v. Bustamonte , 412 U.S. 218, 228, 36 L. Ed. 2d 854, 863, 93 S. Ct. 2041, 2048 (1973).  " 'In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.' " Anthon y, 198 Ill. 2d at 202, quoting Schneckloth , 412 U.S. at 229, 36 L. Ed. 2d at 864, 93 S. Ct. at 2049.

Defendant and the State dispute who had the burden of proof on the suppression motion and whether the burden was met.  The State argues on appeal that defendant "failed to meet his burden of proof because he failed to demonstrate that the encounter was anything but voluntarily consensual."

In People v. Gipson , 203 Ill. 2d 298 (2003), our supreme court described the burden of proof on a motion to suppress evidence.  In Illinois, by statute, the defendant bears the burden of proof at a hearing on a motion to suppress.  725 ILCS 5/114--12(b) (West 2004); Gipson , 203 Ill. 2d at 306.  A defendant must make a prima facie case that the evidence was obtained by an illegal search or seizure.   Gipson , 203 Ill. 2d at 306-07.  If a defendant makes a prima facie case, the State has the burden of going forward with evidence to counter the defendant's prima facie case.   Gipson , 203 Ill. 2d at 307.

In Gipson , the supreme court held that the "defendant made his prima facie case by showing that [the officer] searched the trunk of [the] defendant's car without a warrant."   Gipson , 203 Ill. 2d at 307.  Consistent with Gipson , this court has held that a defendant makes a prima facie case of an illegal search and seizure by establishing that "he was doing nothing unusual (his conduct was not indicative of the commission of a crime) and he was arrested without a warrant."   People v. Garvin , 349 Ill. App. 3d 845, 851 (2004).  Here, defendant was walking with his friend from the front door of his house to his friend's car.  Defendant was doing nothing unusual at the time Officers Klecka and Latronica approached him, and the arrest was not supported by a warrant.  Therefore, the burden shifted to the State to go forward with evidence to establish the validity of the search.

The Gipson court held that, although the burden may shift to the State to counter the defendant 's prima facie case, "the ultimate burden of proof remains with the defendant."   Gipson , 203 Ill. 2d at 307.  In Gipson , the court held that the State met its burden of going forward with the evidence when the arresting officer testified that he discovered the incriminating evidence incident to a routine tow inventory of the defendant 's car, which is a judicially created exception to the fourth amendment warrant requirement.   Gipson , 203 Ill. 2d at 304, 307.  The court concluded that the defendant failed to meet the ultimate burden of proof on the suppression motion because defense counsel did not challenge the officer's assertion that he complied with the department's procedures for inventory searches.   Gipson , 203 Ill. 2d at 307-08.

In this case, the State countered defendant's prima facie case with Officer Klecka's testimony that the encounter was based on defendant 's consent, which does not implicate the fourth amendment.  See Smith , 214 Ill. 2d at 349.  The State contends that the officer's testimony shifted the burden back to defendant to establish that his consent was involuntary.   Gipson supports the State's position, but other supreme court cases, which Gipson does not address, support the opposite result.

In Anthony , our supreme court held that the circuit court correctly suppressed cocaine discovered during an allegedly consensual pat-down search because "the State failed to establish that the defendant voluntarily consented to a search of his person."  (Emphasis added.)   Anthony , 198 Ill. 2d at 203-04.  Moreover, in People v. Casazza , 144 Ill. 2d 414 (1991), the supreme court held that "the voluntariness of a consent to a police search depends on the totality of the circumstances and it is the State's burden to show by a preponderance of the evidence that the consent was voluntarily given."  (Emphasis added.)   Casazza , 144 Ill. 2d at 417.

In denying the motion, the trial court stated that defendant failed to meet his burden of proof.  It is unclear from the judge's oral statements whether he was referring to establishing a prima facie case of involuntariness or the statutorily imposed "ultimate" burden of proving the unlawfulness of the search.  Nevertheless, the ambiguity of the court's ruling on the suppression motion does not prevent us from reviewing it.  See People v. Statham , 209 Ill. App. 3d 352, 362-63 (1991) (holding that, even though "[i]t [was] unclear whether the trial court was referring in its oral ruling to the burden of proving that an initial encounter was consensual or to the ultimate burden to prove that a seizure was unlawful," the appellate court could affirm the denial of the suppression motion because the State met its burden of proof).

Anthony and Casazza suggest that, once a defendant shows a warrantless search and the State counters with evidence that the defendant 's consent legitimizes the search, the burden remains with the State to prove the voluntariness of the consent by a preponderance of the evidence.  At least in the context of establishing the voluntariness of an accused's consent to a search, Anthony and Casazza appear to be at odds with the rule, set forth in Gipson and section 114--12(b) of the Code of Criminal Procedure of 1963, that the ultimate burden of proof on a motion to suppress evidence rests with the defendant . ^{(footnote: 1)}  We conclude that a reconciliation of the authority is unnecessary because, even if defendant had the ultimate burden of proving that his consent to the searches was involuntary, defendant met that burden of proof.

C. The Initial Stop and Search Outside

Defendant contends that, under Gherna and cases like it, his initial encounter with the police outside was a seizure, and therefore, his consent to the subsequent searches was involuntary.  See People v. Green , 358 Ill. App. 3d 456, 463 (2005) (if, in light of all the circumstances surrounding an officer's request for consent to search, a reasonable person in the defendant 's position would not have felt free to leave, the consent is deemed involuntary and will not justify the search).

For purposes of the fourth amendment, an individual is "seized" when an officer " 'by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' "   Florida v. Bostick , 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991), quoting Terry , 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16.  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.   United States v. Drayton , 536 U.S. 194, 200, 153 L. Ed. 2d 242, 251, 122 S. Ct. 2105, 2110 (2002); Florida v. Royer , 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983) (plurality op.).  "So long as a reasonable person would feel free 'to disregard the police and go about his business,' [citation], the encounter is consensual and no reasonable suspicion is required."   Bostick , 501 U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at 2386, quoting California v. Hodari D. , 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698, 111 S. Ct. 1547, 1552 (1991).  However, when, taking into account " 'all the circumstances surrounding the incident' " ( Immigration & Naturalization Service v. Delgado , 466 U.S. 210, 215, 80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1762 (1984), quoting United States v. Mendenhall , 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980)), a person is deemed seized if the conduct of the police would lead a reasonable innocent person under identical circumstances to believe that he or she was not "free to decline the officers' requests or otherwise terminate the encounter" ( Bostick , 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct. at 2387).  Accordingly, the analysis hinges on an objective evaluation of the police conduct and not upon the subjective perception of the individual approached.   Hodari D. , 499 U.S. at 628, 113 L. Ed. 2d at 698, 111 S. Ct. at 1551.

In Gherna , two uniformed officers, while riding bicycles clearly marked "police," passed by the defendant seated in her parked car with her 13-year-old daughter.  One of the officers observed a bottle of beer in the center console and decided to investigate because the defendant's passenger appeared to be under the age of 21.   Gherna , 203 Ill. 2d at 168.  The officers approached the defendant on bicycles, and they were wearing short-sleeved shirts and short trousers, but they displayed police badges on their shirts, and they were equipped with a full complement of police gear, including weapons, radios, handcuffs, and flashlights.   Gherna , 203 Ill. 2d at 179.  One officer positioned himself and his bicycle at the driver's door, while the other officer positioned himself and his bicycle at the passenger's door.  Upon taking these positions, the officers proceeded to identify the occupants.   Gherna , 203 Ill. 2d at 179.

The officers determined that the defendant was over the age of 21, but they still suspected that her passenger was under 21.   Gherna , 203 Ill. 2d at 179-80.  The officer then asked the defendant to hand him the bottle of beer because he wished to ascertain if any underage drinking had taken place.  The defendant handed over the beer, which was unopened and in its original container.  The officer handed the bottle back to the defendant and concluded that illegal alcohol consumption had not occurred.   Gherna , 203 Ill. 2d at 180.  The officer testified that he and the defendant began "casually talking," which ultimately led to the discovery of narcotics on the defendant 's person.   Gherna , 203 Ill. 2d at 169-70.

The supreme court held that the defendant was seized at the moment the officer asked her to hand him the bottle of beer, because "a reasonable innocent person in defendant's position would not have felt 'free to decline the officers' requests or otherwise terminate the encounter.' "   Gherna , 203 Ill. 2d at 180, quoting Bostick , 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct. at 2387.  The court concluded that, at that instant, the positioning of the officers and their bicycles, which prevented the defendant from either exiting the vehicle or driving away, combined with the request for the bottle on the heels of other questioning, would " ' "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." ' "   Gherna , 203 Ill. 2d at 180, quoting Bostick , 501 U.S. at 437, 115 L. Ed. 2d at 400, 111 S. Ct. at 2387, quoting Michigan v. Chesternut , 486 U.S. 567, 569, 100 L. Ed. 2d 565, 569, 108 S. Ct. 1975, 1977 (1988).

In this case, Officers Klecka and Latronica drove in an unmarked police car toward defendant 's home, and when they saw him exit the house, they crossed the center line, entered oncoming traffic, and parked their vehicle so that it faced the car in which defendant planned to leave.  The two cars were the width of the driveway plus another car length apart.  Officer Klecka, whom defendant immediately recognized as a police officer, then exited the car and told defendant that he wished to speak with him.  The officer did not shout or use profanity, draw his weapon or handcuffs, or otherwise threaten defendant .  However, when defendant walked to Officer Klecka, the officer immediately told defendant that he "knew what [he] was up to" and accused him of possessing cannabis.

At the moment the officers arrived, defendant did not experience a physical restriction of movement like the defendant in Gherna .  Officer Klecka was standing next to his open car door when he called out to defendant, who was standing several feet away in his front yard.  Theoretically, defendant could have walked in any direction or ridden away in Rossow's car to physically avoid the officers, but he walked toward Officer Klecka when called.

We conclude that, even if defendant 's movement was not restricted physically, the nature of the officers' arrival and Officer Klecka's immediate accusation of wrongdoing conveyed a sense of gravity and urgency that made defendant reasonably believe that he was the target of a drug investigation and was not free to leave. ^{(footnote: 2)}  See People v. Brownlee , 186 Ill. 2d 501, 520 (1999) ("officers restrained the movements of [a] car's occupants by their show of authority").  Officer Klecka testified that he drove toward defendant 's home at a normal speed and did not come to a "screeching" halt.  However, his maneuver of crossing the center line and entering oncoming traffic before stopping indicated that he felt it necessary to violate a traffic law (see 625 ILCS 5/11--701 (West 2004)) to intercept defendant before he left the scene.  The officers rode in an unmarked police car and were not in uniform, but there is no dispute that defendant recognized Officer Klecka as a police officer who investigated crime and held a position of authority at his school.  The combination of defendant 's youth, the urgency of the officer's arrival, defendant 's familiarity with Officer Klecka, and the immediate accusation of cannabis possession would certainly intimidate a high school student like defendant .  In fact, the officers' subtle coercion is evidenced by defendant 's reaction to the drug accusation:  Officer Klecka testified that defendant responded by dropping his head.  This gesture can be construed as an act of submission and resignation to an inevitable arrest.

The State emphasizes Officer Klecka's testimony that he would have allowed defendant to leave if defendant had declined to speak with the officers upon their arrival.  However, our analysis focuses on an objective evaluation of the police conduct (see Hodari D. , 499 U.S. at 628, 113 L. Ed. 2d at 698, 111 S. Ct. at 1552), and whether that conduct would communicate to a reasonable person that he was not at liberty to ignore the police presence and go about his business (see Gherna , 203 Ill. 2d at 180).  Therefore, Officer Klecka's belief that defendant was free to leave is discounted by the officer's physical actions that suggest otherwise.

The State and defendant cite People v. Purchase , 214 Ill. App. 3d 152 (1991), and Anthony , respectively, to support their positions on the voluntariness of defendant 's admission to cannabis possession and his consent to the search outside.

In Purchase , the defendant 's wife was alone at home when two police officers arrived at her door inquiring about several thefts from a store.  When she denied any knowledge of the thefts, one of the officers noticed that she was pregnant and told her that they would put her in jail and take custody of her baby if she did not cooperate.  The officer asked her to sign a piece of paper, and when she asked what it was, he concealed the top part of the document and stated that it indicated her cooperation.  The officers also falsely told her that they had a lawful search warrant.  Fearful of losing her baby, the defendant 's wife signed the consent form.  Five police officers searched the home for about nine hours and eventually seized several items.   Purchase , 214 Ill. App. 3d at 153.  The defendant arrived home approximately two hours after the search began, and one of the officers restated the threat to take the couple's baby to coerce the defendant to sign a consent form.   Purchase , 214 Ill. App. 3d at 154.  Noting that the consent was obtained through "coercion and trickery," the appellate court held that the trial court was not manifestly erroneous in finding the consent to be involuntary.   Purchase , 214 Ill. App. 3d at 155.

On appeal, the State argues that defendant 's consent was voluntary because the egregious and overtly coercive conduct of the officers in Purchase did not occur here.  The State fails to recognize that, while the existence of overt coercion in Purchase supported a finding of involuntary consent, the absence of such conduct does not necessarily compel a finding of voluntariness here.  We agree with defendant that the factual dissimilarity between the cases renders Purchase unhelpful.

In Anthony , two uniformed officers were on routine walking patrol when they saw the defendant, a black male, walk out the front door of a residence.  The officers believed that a white female was the home's only resident, but, aside from his presence in the community, the defendant was doing nothing unusual.  When the defendant saw the officers, he turned and walked down an alley adjacent to the building.   Anthony , 198 Ill. 2d at 197-98.

The officers first contacted the defendant from 50 feet away by calling to him down the alley.   Anthony , 198 Ill. 2d at 203.  The searching officer then proceeded to ask the defendant a series of increasingly accusatory questions, such as the nature of his business in the area and whom he knew in the apartment complex.  Although the officers did not threaten the defendant , his apprehension was apparent, as his voice stuttered, his hands shook, and he reached into and out of his pants pockets.  The searching officer asked the defendant to keep his hands out of his pockets.  The defendant complied, but the officer continued to question the defendant by inquiring whether he " 'had anything on him that he shouldn't have, anything like guns, drugs, knives, anything that could hurt me or my partner.' " Anthony , 198 Ill. 2d at 203.

The defendant denied possessing any such items, but the officer continued the questioning by requesting consent to search the defendant 's person.   Anthony , 198 Ill. 2d at 203.  Rather than giving verbal consent, the defendant " 'assumed the position' " of an arrestee by spreading his legs and placing his hands on top of his head.   Anthony , 198 Ill. 2d at 203.  The officer, who never threatened or made any physical contact with the defendant before the search, construed the action as nonverbal consent.   Anthony , 198 Ill. 2d at 198.

Our supreme court found the defendant 's gesture to be ambiguous, susceptible to dueling inferences of voluntary consent and submission to a uniformed officer who had just asked him accusatory questions, in essence telling the officer to " 'do what [he] had to do.' "   Anthony , 198 Ill. 2d at 203, citing United States v. Giuliani , 581 F. Supp. 212, 218 (N.D. Ill. 1984) (holding that a suspect's statement to drug enforcement agents to " 'Do what you have to do' " does not constitute voluntary consent to search a suitcase).  The supreme court held that the State failed to meet its burden of proving the voluntariness of the consent, and therefore, the trial court correctly suppressed the cocaine discovered during the search.   Anthony , 198 Ill. 2d at 203-04.

Defendant cites Anthony in arguing that his consent to search was involuntary because he merely acquiesced to a showing of police authority when the officer accused him of possessing cannabis.  We agree.  In Anthony , the supreme court concluded that the defendant was seized when he acquiesced to police authority by " 'assum[ing] the position' " for the search after facing increasingly accusatory questions.  In light of the totality of the circumstances, we conclude that defendant was seized when Officer Klecka accused him of cannabis possession.  Upon hearing the accusation, defendant did not "assume the position" for a search of his person, but he dropped his head in silence in recognition that he was about to be arrested and could not leave.

D. The Search Inside the Home

Defendant argues on appeal that his entire encounter with Officer Klecka was nonconsensual, and therefore, all of the cannabis should have been suppressed.  The State does not distinguish between the searches that disclosed cannabis outside and inside defendant 's home.  The State introduced evidence of the total weight of the cannabis seized but did not specify how much was discovered in defendant 's bedroom.  However, the additional cannabis clearly affected the seriousness of the charge and the corresponding street value fine.  Therefore, we address whether defendant 's fourth amendment rights were violated by the search of his bedroom and the second backpack found therein.

The State argues that, because the trial court credited testimony that defendant led the three officers into the home, the second search--like the first--was justified by defendant 's voluntary consent, which does not implicate his fourth amendment rights.  Assuming arguendo that the search of the backpack outside defendant 's home was consensual, we nonetheless conclude that his consent to the search of his bedroom was involuntary.

As discussed, a seizure occurs, and the fourth amendment is implicated, when a reasonable person would not feel free to leave under the circumstances.   Mendenhall , 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; Luedemann , 357 Ill. App. 3d at 421.  Officer Klecka testified that defendant was under arrest as soon as the cannabis in the lockbox was disclosed outside.  In fact, we conclude that defendant was under arrest at an even earlier point: when Officer Klecka told him that he was not free to "go somewhere else" to open the backpack away from the view of his sister.  In any event, the parties agree that defendant was not free to leave after the cannabis in the lockbox was disclosed.  Therefore, there can be no dispute that defendant was seized before the police requested permission to search his home.

In light of all the circumstances surrounding Officer Klecka's request to search the home, a reasonable person in defendant 's position would not have felt free to leave.  Therefore, defendant 's consent to the search of the home is deemed involuntary and does not justify the search.  See Green , 358 Ill. App. 3d at 463.  The involuntariness of defendant 's consent to the home search is further evidenced by the officers' failure to admonish defendant of his Miranda rights before the search.  Thus, the contraband discovered during the search of defendant 's home must be suppressed unless the search can be otherwise justified.

In People v. Hassan , 253 Ill. App. 3d 558 (1993), the Appellate Court, First District, discussed the implication of a warrantless, involuntary search of an accused's home:

"The 'chief evil' against which the fourth amendment was intended to protect the people was the 'physical entry of the home.'  ( Spicer , 163 Ill. App. 3d at 87, 516 N.E.2d at 496, citing Payton , 445 U.S. at 585, 63 L. Ed. 2d at 650, 100 S. Ct. at 1379.)  Therefore, any search or seizure within a home without a warrant is presumptively unreasonable.  ( Payton , 445 U.S. at 586, 63 L. Ed. 2d at 651, 100 S. Ct. at 1380.)  The Payton Court recognized 'the long-settled premise that, absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.'  ( Payton , 445 U.S. at 587-88, 63 L. Ed. 2d at 651-52, 100 S. Ct. at 1381.)  '[N]o amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances." '  ( Coolidge v. New Hampshire (1971), 403 U.S. 443, 468, 29 L. Ed. 2d 564, 584, 91 S. Ct. 2022, 2039.)  If an officer merely needed probable cause in order to search a suspect's home, ' "the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified." '  ( People v. Kelley (1982), 104 Ill. App. 3d 51, 54, 432 N.E.2d 630, 632, quoting Jones v. United States (1958), 357 U.S. 493, 497-98, 2 L. Ed. 2d 1514, 1518-19, 78 S. Ct. 1253, 1256-57 (1958)).  The Supreme Court also has recognized certain narrow exceptions to the warrant requirement besides the existence of 'exigent circumstances,' such as the 'protective sweep' ( Maryland v. Buie (1990), 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093) and the 'search incident to arrest.'   Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034."   Hassan , 253 Ill. App. 3d at 567-68.

1. Search Incident to Arrest

In this case, there is no evidence to support the invocation of the narrow exceptions to the warrant requirement to justify the police intrusion into defendant 's home.  In Chimel , the Court held that, upon lawfully arresting a person in his home, the police may search the area within the suspect's "immediate control" from which he might obtain a weapon or destroy incriminating evidence.  Here, defendant was arrested as soon as the lockbox was opened in the rear seat of Officer Klecka's police car.  Defendant was not arrested in his home, defendant had no immediate access to any part of his home, and none of the officers had been lawfully inside defendant 's home.  Moreover, nothing in the record suggests that any of the officers feared for their safety at any point of the encounter.  Therefore, the Chimel exception to the warrant requirement does not render the cannabis from the bedroom search admissible.  See Hassan , 253 Ill. App. 3d at 572-73.

2. Exigent Circumstances

In Hassan , the police officers, acting on an anonymous tip, set up surveillance of the defendant's home and witnessed several people walk up to the house and exchange money for small packages from the defendant.  One of the undercover police officers walked to the front door, knocked, and asked, " 'what you got?' "   Hassan , 253 Ill. App.3d at 562.  The defendant retrieved a small packet from the bar and handed it to the police officer, at which time the officer announced his office and attempted to arrest the defendant.  The defendant tried to close the door but was unsuccessful.  He then pushed the door open and ran into the front yard, where he was apprehended and arrested.  The police officers entered the home, and their search disclosed narcotics.  The appellate court concluded that the police unlawfully entered the defendant's home to search for the narcotics.  The court stated, "[w]e believe that there was probable cause to believe that a quantity of cocaine was on the premises, but there was no 'emergency' which required a quick response.  The officers could have obtained a warrant without the risk that the suspect would escape or harm others.  ***  In short, *** there was no need for swift action."   Hassan , 253 Ill. App. 3d at 571.  The appellate court reversed the trial court's denial of the defendant 's motion to suppress evidence, concluding that in the absence of exigent circumstances, the police intrusion into the defendant's home was not justified.

Like in Hassan , there were no exigent circumstances to justify the police intrusion into defendant 's home even though there might have been probable cause to believe that there was cannabis on the premises.  The police officers could have sought a warrant based on the evidence legally seized from the lockbox, without the risk of defendant escaping or harming others.

3. Protective Sweep

In Maryland v. Buie , 494 U.S. 325, 334-35, 108 L. Ed. 2d 276, 286-87, 110 S. Ct. 1093, 1098-99 (1990), the Supreme Court held that an officer, after lawfully arresting a suspect in his home, may make a "protective sweep" of the premises to check for dangerous individuals if the officer possesses "specific articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."  Our supreme court has recognized the permissibility of a protective sweep of a suspect's house " 'even though the arrest itself was achieved without entry.' "   People v. Free , 94 Ill. 2d 378, 396-97 (1983), quoting 2 W. LaFave ྷ6.4(c), at 431 (1978).  "An officer's suspicion, however, must be based 'upon something more concrete than the mere physical capacity of a structure to harbor unseen occupants.' "   Hassan , 253 Ill. App. 3d at 573, quoting United States v. Wiga , 662 F.2d 1325, 1330 (9th Cir. 1981). " '[B]are suspicion unsupported by articulable facts will not justify a protective search.' "   Hassan , 253 Ill. App. 3d at 573, quoting Wiga , 662 F.2d at 1330.

In this case, defendant disclosed that his sister was in the house, but nothing in the record suggests that the officers viewed her as a safety risk.  The physical capacity of the structure to harbor unseen persons is the only fact the officers could articulate that would lead them to believe that other people were on the premises.  Officer Klecka articulated no specific facts that would lead him or any of the other officers to believe that there was an individual on the premises who posed a risk of harm to them.  Manna, the informer, did not tell Officer Klecka that defendant , Rossow, or anyone in defendant 's home might be armed.  Manna merely stated that defendant was selling drugs from a lockbox.  Upon arriving at the scene, the officers did not observe any person besides defendant and Rossow enter or leave the house.  The officers asked to enter the house for the sole purpose of searching for additional contraband.  Therefore, we conclude that the police intrusion into defendant 's home is not justified as a protective sweep.

CONCLUSION

We conclude that the trial court erred in denying defendant 's motion to suppress the evidence and quash the arrest.  Therefore, we reverse the judgment, and we remand the cause for further proceedings.  In light of the reversal, we need not comment on the sentence-credit issue.

For the preceding reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded.

Reversed and remanded.

O'MALLEY, P.J., and HUTCHINSON, J., concur.

FOOTNOTES

1:

We note that neither Gipson nor its progeny defines the "ultimate burden of proof" that a defendant must bear.

2:

We again note that the State does not argue that the informant's tip gave the officers a reasonable suspicion of criminal activity.