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JUSTICE GILLERAN JOHNSON, dissenting:
I respectfully dissent. I believe that the trial court erred in granting the defendant’s motion to quash arrest and suppress evidence. Specifically, I disagree with the trial court’s determination that the defendant was under arrest and its determination that there was insufficient evidence to justify a Terry stop. Furthermore, I disagree with the majority’s conclusion that the pat-down search of the defendant exceeded the bounds of a Terry search and degenerated into a search for evidence of a crime. Traditionally, a trial court’s ruling on a motion to suppress evidence is subject to reversal only if manifestly erroneous. People v. Mitchell, 165 Ill. 2d 211, 230 (1995). However, 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 finding with respect to probable cause or reasonable suspicion. People v. Sorenson, 196 Ill. 2d 425, 431 (2001).
Special law enforcement concerns will sometimes justify traffic stops without individualized suspicion. Illinois v. Lidster, 540 U.S. 419, 424, 157 L. Ed. 2d 843, 851, 124 S. Ct. 885, 889 (2004). Under Terry, a law enforcement officer may, within the strictures of the fourth amendment, conduct a brief, investigative stop of an individual, absent probable cause to arrest, provided the officer has a reasonable, articulable suspicion of criminal activity. People v. Gonzalez, 204 Ill. 2d 220, 227 (2003). A Terry stop is deemed reasonable if the officer’s action in initiating the stop was justified and if the officer’s action during the course of the stop was reasonably related in scope to the circumstances that justified the interference in the first place. People v. Harris, 207 Ill. 2d 515, 522-23 (2003). Additionally, under Terry, a law enforcement officer may conduct a limited search for weapons once he reasonably concludes that the person whom he legitimately stopped poses a threat to his safety or the safety of others. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger. Sorenson, 196 Ill. 2d at 433. In determining whether the officer acted reasonably in such circumstances, due weight must be given to the specific reasonable inferences that he was entitled to draw from the facts, in light of his experience. Sorenson, 196 Ill. 2d at 433.
In the present case, the police had sufficient specific and articulable facts to justify a Terry search of the defendant for weapons. The defendant arrived at the scene as a passenger in a black Mustang whose driver had made arrangements to meet an undercover police officer, Officer Biggs, for the purpose of a drug sale. The driver exited the Mustang and entered the vehicle of Officer Biggs. The driver completed a narcotics sale to Officer Biggs. Three police officers testified that, based on their training and experience, drug dealers commonly have weapons in their possession. Furthermore, there is a likelihood that a car passenger is a companion to the driver and perhaps involved in the driver’s criminal behavior. People v. Allen, 268 Ill. App. 3d 279, 284 (1994). In fact, Officer Ackland testified that, based on two prior contacts with the defendant where the defendant operated out of the Mustang, he knew that the defendant was the owner of the Mustang. As such, I believe that since the defendant was traveling in his own vehicle with a person involved in a prearranged drug transaction, it was reasonable for the police officers to infer that the defendant may have been carrying weapons. See Sorenson, 196 Ill. 2d at 438 (weapons and violence are frequently associated with drug transactions). Furthermore, under these facts, it was reasonable for the police to detain the defendant for the purpose of investigating the drug sale and, in the process, frisk the defendant for weapons. Consequently, the Terry search of the defendant was proper. See Sorenson, 196 Ill. 2d at 434 (Terry search proper where officer observed the defendant exhibit behavior consistent with a drug purchase at a known drug house and officer testified that in his experience, persons involved in drugs are known to carry weapons). Despite the majority’s contention to the contrary (347 III. App. 3d at 387), I have not concluded that there was probable cause to arrest the defendant. I have concluded only that a Terry search for weapons was proper.
In reaching this conclusion, I disagree with the trial court’s determination that the defendant was under arrest as soon as he was removed from the car. An investigatory stop is not transformed into an arrest by the officers using force or displaying their firearms to detain the individual. People v. Chavez, 327 Ill. App. 3d 18, 31 (2001). The mere restraint of an individual does not turn an investigatory stop into an arrest. Chavez, 327 Ill. App. 3d at 31. In the present case, in light of the officers’ testimony concerning the common use of weapons in drug delivery situations, asking the defendant, with their weapons drawn, to get on the ground, and handcuffing the defendant behind his back, involved an appropriate amount of force and did not transform the investigatory stop into an arrest. See Chavez, 327 Ill. App. 3d at 31 (restraint of the defendant did not turn an investigatory stop into an arrest); People v. Waddell, 190 Ill. App. 3d 914, 927-28 (1989) (in light of the risks inherent in interdicting drug traffic, the handcuffing of the defendant did not transform the Terry stop of the defendant into an arrest).
Finally, the search of the defendant did not exceed the bounds of Terry. Rather, the “plain touch” doctrine allowed for the recovery of the contraband from the defendant’s sock. In Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), the Supreme Court held that if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons. Dickerson, 508 U.S. at 375-76, 124 L. Ed. 2d at 345-46, 113 S. Ct. at 2137. Accordingly, the Court determined that, under the “plain touch” doctrine, a police officer conducting a Terry search may properly seize nonthreatening contraband detected during a protective pat-down search as long as the search remains within the limits required by Terry. See People v. Pratcher, 332 Ill. App. 3d 1063, 1067-68 (2002).
In People v. Mitchell, 165 Ill. 2d 211 (1995), our supreme court held that the “plain touch” doctrine described in Dickerson does not violate article I, section 6, of the Illinois Constitution of 1970. Pratcher, 332 Ill. App. 3d at 1068; Mitchell, 165 Ill. 2d at 222. Relative to an officer’s tactile perception of contraband, the court stated:
“"When objects have a distinctive and consistent shape that an officer has been trained to detect and that officer has had previous experience in detecting such objects, his tactile perceptions can provide him with the same recognition that his sight would have provided. [Citations.] We caution that the officer’s belief must be objectively reasonable, in light of his past experience and training, and capable of verification.” Mitchell, 165 Ill. 2d at 227.
The Mitchell court also stated that, under the “plain touch” doctrine, where an officer discovers contraband in the conduct of a Terry stop and frisk, he is not required to avert his attention from such evidence. Mitchell, 165 Ill. 2d at 229. However, where an object is not readily identifiable, probable cause is absent, and “plain touch” provides no support for its seizure. Mitchell, 165 Ill. 2d at 228. Additionally, regardless of whether the officer detects the contraband by sight or by touch, he must have probable cause to believe that the item is contraband before seizing it. Mitchell, 165 Ill. 2d at 232. Probable cause does not require evidence sufficient to convict. People v. DeLuna, 334 Ill. App. 3d 1, 13 (2002). Probable cause exists when police have knowledge of facts that would lead a reasonable person to believe that a crime has occurred and that it has been committed by the defendant. Mitchell, 165 Ill. 2d at 232-33. Additionally, the Mitchell court cautioned that the officer’s belief must be objectively reasonable, in light of his past experience and training, and capable of verification. Mitchell, 165 Ill. 2d at 227. In order to avoid any confusion, it is important to note that although there may not be probable cause to arrest, an officer can still find probable cause to believe an item is contraband before seizing it.
In the present case, the seizure of the illegal contraband in the defendant’s right sock was proper. Once the officers asked the defendant to exit his vehicle and handcuffed him, Deputy DeCamp proceeded to search the defendant for weapons. Deputy DeCamp testified that he patted the defendant down and noticed “an unusual bulge,” in the defendant’s right sock. He testified that “it did not feel like a weapon.” He further testified that he did not roll it around or manipulate it once he made contact with it. He believed that the bulge “was possibly narcotics” and notified Inspector Whowell, who removed what appeared to be narcotics from the defendant’s sock.
Based on these facts, the requirements of the “plain touch” doctrine were met. Deputy DeCamp testified that after feeling the bulge in the defendant’s sock, he believed the object was possibly narcotics. Although he was searching only for weapons, Deputy DeCamp was not required to divert his attention from such evidence. See Mitchell, 165 Ill. 2d at 229. Additionally, Deputy DeCamp specifically testified that he did not manipulate the bulge in the defendant’s sock in order to make his determination that it was possibly narcotics. Furthermore, there was probable cause for Deputy DeCamp to believe that there were drugs on the person of the defendant, because the defendant had accompanied another person to a prearranged drug transaction. See Allen, 268 Ill. App. 3d at 284 (there is a likelihood that a car passenger is a companion to the driver and perhaps involved in the driver’s criminal behavior). As such, for purposes of the “plain touch” doctrine, Deputy DeCamp had probable cause to believe that the item in the defendant’s sock was contraband.
Consequently, contrary to the majority, I do not find Pratcher, 332 Ill. App. 3d 1063, instructive in the present case. In Pratcher, this court reversed the trial court’s denial of the defendant’s motion to suppress, because the officer’s search exceeded the permitted scope of a pat-down search under the “plain touch” doctrine. However, I believe Pratcher is distinguishable from the present case on two key points. See 347 Ill. App. 3d at 387-88. In Pratcher, the officer manipulated the item in the defendant’s pants pocket to achieve a better idea that the item was contraband. In the present case, the officer did not manipulate the object in the defendant’s sock in making this determination. Also in Pratcher, the defendant was pulled over for a traffic violation, which casts doubt on whether the officer had probable cause to believe that the item in the defendant’s pants pocket was contraband before seizing it. However, in the present case, the defendant was a passenger in a car whose driver had just completed a narcotics sale to an undercover police officer. As such, it was objectively reasonable for the officer in the present case to believe that the item in the defendant’s sock was contraband.
However, I believe Mitchell is instructive in the present case. In Mitchell, the officer testified that he felt an object in the defendant’s shirt pocket that he believed “was probably rock cocaine.” Mitchell, 165 Ill. 2d at 231. The officer did not manipulate the object in order to make this determination. Mitchell, 165 Ill. 2d at 231. The Mitchell court found that the requirements for seizure under the “plain touch” doctrine were met and that the officer’s seizure of the object was therefore proper. Mitchell, 165 Ill. 2d at 231. As the facts in the present case are very similar to those in Mitchell, I believe that the seizure of the contraband from the defendant’s sock was proper.
In so finding, I note that the testimony of the officer in Mitchell was slightly different from that of the officer in the present case. In Mitchell, the officer testified that the item in the defendant’s pocket was “probably” rock cocaine. In the present case, the officer testified that the bulge in the defendant’s sock was “possibly” narcotics. I acknowledge that a probability is more than a possibility. However, under the facts in the present case, I believe this is an insignificant distinction. In Mitchell, the officer felt an object in the defendant’s shirt pocket that was “probably” rock cocaine. When considering this probability, one cannot overlook the fact that people normally carry items in their shirt pockets. Consequently, there was also a probability that the item was not rock cocaine. In the present case, however, the officer felt an object in the defendant’s sock that he believed was “possibly” narcotics. When considering this possibility, one cannot overlook the fact that people do not normally carry items in their socks. Furthermore, the defendant arrived at the scene in a car whose driver had just completed a narcotics sale to an undercover police officer. Consequently, the “possibility” that the item in the defendant’s sock was contraband was highly probable under these circumstances. In short, based on the totality of the circumstances, I do not believe that the officer’s testimony that the item in the defendant’s sock was “possibly” narcotics, rather than “probably” narcotics, should change the outcome of this case. See also DeLuna, 334 Ill. App. 3d at 14 (package containing contraband was properly seized pursuant to the “plain touch” doctrine, where officer’s experience indicated that defendant had contraband; officer did not testify that the information he obtained as a result of touching the package led him to believe it was probably contraband).
Finally, despite the majority’s conclusion to the contrary, the fact that Inspector Whowell was called to remove the item from the defendant’s right sock does not violate the reasoning of the “plain touch” doctrine. The Mitchell court stated that an officer’s belief must be objectively reasonable and capable of verification. Mitchell, 165 Ill. 2d at 227. In this case, Deputy DeCamp testified that based on his experience and training, he believed the bulge was possibly narcotics. Thereafter, Deputy DeCamp notified Inspector Whowell, who subsequently removed the narcotics from the defendant’s sock. There is no indication in the record that Inspector Whowell manipulated the bulge in the defendant’s sock before removing it. Consequently, such notification merely served as an opportunity for Inspector Whowell to verify the reasonableness of Deputy DeCamp’s belief that the bulge was narcotics. I believe that such verification by Inspector Whowell comports with the “plain touch” doctrine. See Mitchell, 165 Ill. 2d at 227.
In sum, I believe the Terry search of the defendant for weapons was proper. Additionally, the seizure of the contraband from the defendant’s sock did not exceed the bounds of Terry. For these reasons, I would reverse the judgment of the trial court.
Document Info
Docket Number: 2-02-1182
Citation Numbers: 806 N.E.2d 1281, 347 Ill. App. 3d 382, 282 Ill. Dec. 693, 2004 Ill. App. LEXIS 359
Judges: Hutchinson, Johnson, McLaren
Filed Date: 4/2/2004
Precedential Status: Precedential
Modified Date: 11/8/2024