People v. Profit , 2021 IL App (2d) 200350-U ( 2021 )

2021 IL App (2d) 200350-UNo. 2-20-0350
Order filed August 4, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellant, )
)
v. ) No. 18-CF-1857
)
CHRISTOPHER L. PROFIT, ) Honorable
) George D. Strickland,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court.
Justices Jorgensen and Schostok concurred in the judgment.
ORDER
¶1 Held: The order granting the defendant’s motion to suppress evidence was reversed where
the police officers had valid bases to conduct a Terry stop and to frisk the defendant
for weapons. Even if the frisk could not be justified as a Terry frisk, the inevitable-
discovery doctrine applied.
¶2 The State charged defendant, Christopher L. Profit, with seven offenses stemming from his
possession of a firearm. The trial court granted defendant’s motion to suppress evidence. The State
filed a certificate of impairment and appeals. We reverse and remand for further proceedings.
¶3 I. BACKGROUND
¶4 The evidence at the hearing on defendant’s motion to suppress consisted of three officers’
2021 IL App (2d) 200350-Ubody camera footage, an audio recording of police dispatch communications, and the testimony of
Officer Muhammad Alka of the North Chicago Police Department. To explain the circumstances
leading to the discovery of the firearm, we will first describe what can be seen and heard on the
various recordings. We will then supplement the facts by reference to Alka’s testimony.
¶5 A. Events on the Recordings
¶6 Around 1:40 a.m. on August 11, 2018, police officers were dispatched to the area of 14th
Street and Sheridan Road in North Chicago in response to a report from “rescue” (North Chicago’s
emergency medical services) of a “possible intoxicated motorcycle driver.” The subject was
reported as being a black male, wearing black, travelling southbound.
¶7 Multiple officers arrived at the scene. They observed an unattended motorcycle parked on
a sidewalk at the intersection of 14th Street and Sheridan Road. Sergeant Eric Martin radioed
dispatch to identify the owner of the motorcycle and to ascertain the status of the owner’s license.
Officer Micah Cress arrived at the intersection and encountered Martin. Cress’s body camera
footage depicts the parked motorcycle but does not show any portion of any officer’s encounter
with defendant. There is no body camera footage from Martin.
¶8 Meanwhile, Officers Alka, Keith Farrell, and Juan Laracuente encountered an African
American male, later identified as defendant, walking on the sidewalk half a block north of the
motorcycle. Alka and Farrell both activated their body cameras. The emergency lights of
Laracuente’s squad car were activated by the time that Alka’s and Farrell’s body camera footage
began recording. There is no body camera footage from Laracuente. On the video, there does not
appear to be anybody in the vicinity other than defendant and the police officers. The area was
dark and was illuminated primarily by the lights from the squad cars and the officers’ flashlights.
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2021 IL App (2d) 200350-U¶9 As Alka exited his squad car and encountered defendant, defendant was walking
northbound down the sidewalk with his hands in the pockets of his motorcycle jacket. A metal
fence was west of defendant, and a strip of grass separated the sidewalk from the road to the east
of defendant. Defendant was dressed all in black. As he was walking, defendant said something
about an “earpiece.” Laracuente, who was standing by the driver’s side of his squad car just south
of Alka’s squad car, asked defendant, “What color is it?” Defendant responded, “black.” As Alka
began his conversation with defendant, Laracuente walked toward the grass alongside the road,
southeast of defendant. Laracuente shined his flashlight on the ground in the area where defendant
had been walking, apparently searching for an earpiece. Farrrell walked northbound on the
sidewalk south of defendant.
¶ 10 Alka approached defendant and said, “Take your hands out of your pockets, please.”
Defendant complied but continued to walk down the sidewalk. Alka then said, “Alright, can you
hold on a second?” Defendant looked at Alka but did not respond, and defendant continued
walking. Alka repeated, “Can you hold on a second?” Defendant stopped, turned around toward
Alka, and said that he was not bothering anybody and that he was just looking for his “earpiece.”
Alka said, “we want to talk to you, okay?” Defendant turned around again and started walking
away from Alka. Alka asked defendant if he had any “ID” with him. Defendant, walking away
from Alka, responded, “no.” Alka repeated, “Can I see your ID please?” Defendant responded that
he did not have his identification. Alka asked defendant if he could “stop walking for a second,”
adding: “I’ve got to talk to you.” Defendant continued to walk. Alka told defendant to “stop
walking, man” and to “hold on.” Defendant stopped on the sidewalk, and Alka approached him.
¶ 11 Alka asked defendant if he “had a name.” Defendant paused for a moment before asking,
“what’s the problem officer?” By this time, defendant was surrounded by three officers: Alka to
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2021 IL App (2d) 200350-Uthe east, Farrell to the north, and Laracuente to the south. Alka told defendant that the police
received a call about “you and a motorcycle.” Alka asked defendant if that was his “motorcycle
over there.” Defendant responded that it was. He told Alka that his Bluetooth flew off as he was
riding and that he got off the motorcycle to look for the device.
¶ 12 Around this time, the dispatcher advised the officers that the motorcycle was registered to
Christopher Profit. The dispatcher added, “1080, prior parolee.” (According to Alka’s testimony,
this meant that, per the Law Enforcement Agencies Data System (LEADS), defendant was a gang
member and had once been on parole.)1
¶ 13 Alka again asked defendant whether he had any “ID” with him. Defendant responded that
he did not. Alka asked defendant his name. Defendant responded, “my name is—,” before trailing
off and starting to walk down the sidewalk again. Alka told defendant to stop walking. Farrell
stepped in front of defendant and said: “hold on partner.” Defendant stopped. Alka told defendant
that he was “not free to go right now.”
¶ 14 Defendant asked what the problem was. Alka said that he had to talk to defendant, and
Alka again asked defendant his name. Defendant paused and again asked what the problem was.
Alka asked defendant for his name once more. Defendant shrugged, put his hands in his pants
pockets, then put his right hand into his jacket pocket, and took out his phone. Defendant asked,
“Now what’s the problem with me and my bike?” Alka asked defendant: “Is your name on your
1
The parties dispute whether the dispatcher said “1080, prior parolee” before or after
defendant was frisked. The parties are both right. The dispatcher said this prior to the frisk, and
she repeated it one minute and forty seconds after the officers found the firearm in defendant’s
jacket.
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2021 IL App (2d) 200350-Uphone?” Alka then told defendant that it was not a problem if defendant wanted to start recording
the encounter.
¶ 15 Farrell interjected that defendant was “making it a lot harder than it needs to be.” Farrell
added that they were trying to get defendant’s driver’s license, make sure that he was okay, make
sure that he did not fall off his bike, and then defendant would be “out of here.” Defendant
responded, “No, I was just at the gas station.”
¶ 16 Around this time, the dispatcher advised the officers that the person to whom the
motorcycle was registered had a “D” class license but did not have a motorcycle endorsement—
i.e., a license to operate a motorcycle.
¶ 17 Farrell told defendant to give Alka his name and then they would get out of defendant’s
way. Alka said: “We got called here for a reason, that’s all.” Defendant then said that his name
was Christopher Profit and that he was looking for his earpiece, which flew off while he was riding
his bike. Alka asked defendant to spell his first and last names and to provide his date of birth.
Defendant complied. Defendant again indicated that he was looking for his earpiece, which had
fallen off “right here.” As defendant said this, he gestured toward the street.
¶ 18 Alka then asked defendant, “You don’t have any weapons on you do you by chance?
Knives, pistols, anything like that?” Defendant started to walk away from the officers toward the
street as he said, “no officer.” Alka told defendant to “hold on” multiple times and grabbed
defendant’s arm as defendant stepped into the street.
¶ 19 Alka told defendant that they were going to pat him down to make sure that he had nothing
on him. Alka asked defendant if he had anything on him. Defendant responded that he did not.
Defendant repeatedly asked Alka why Alka was grabbing him. Alka repeatedly told defendant not
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2021 IL App (2d) 200350-Uto pull away, before telling defendant to “stop.” As Farrell frisked defendant’s jacket, Alka again
asked defendant if he had any weapons on him. Defendant responded calmly, “I’m cool.”
¶ 20 It appears that Farrell and Alka then attempted to put defendant’s hands behind his back as
defendant said, “come on man.” Alka told defendant not to resist. Alka pulled out his taser and
told Farrell and Laracuente to let defendant go. Alka repeatedly shouted “taser” and directed
defendant to put his hands behind his back. Defendant put his arms up. As defendant had his arms
up and was standing still, Alka tased him on the right side of his torso. Defendant fell to the ground
and rolled over onto his stomach. Around this time, Martin and Cress approached defendant and
the other officers, so there were five officers in total around defendant.
¶ 21 Farrell and Laracuente attempted to put handcuffs on defendant. Farrell told the other
officers at the scene that there was something in defendant’s front left pocket. Farrell and
Laracuente had trouble getting the handcuffs on defendant, and someone said that defendant was
resisting. Alka placed the taser against defendant’s leg and tased defendant a second time. Once
Farrell and Laracuente handcuffed defendant, they rolled him onto his back. Farrell searched
defendant’s jacket and found a .45 caliber firearm in a zipped left interior pocket. At this point,
approximately four and a half minutes had passed since Alka and Farrell first encountered
defendant.
¶ 22 B. Alka’s Testimony
¶ 23 There are a few points that warrant mentioning from Alka’s testimony.
¶ 24 Alka confirmed that the only information that he had when he responded to the vicinity of
14th Street and Sheridan Road was what he heard through dispatch. Alka explained that he had
worked with rescue personnel “[w]ell over a hundred times” in his career and that he knew most
of them. Alka explained that, after defendant was arrested, another officer was able to identify the
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2021 IL App (2d) 200350-Urescue worker who made the initial report of a “possible intoxicated motorcycle driver.” Alka had
his dispatch radio on his left shoulder during the encounter with defendant.
¶ 25 Alka testified that the area in question was a business district that was surrounded by
commercial parking lots, buildings, and an iron fence. It was uncommon to see people walking the
streets at this hour, as many businesses were closed. Alka said that this area was known for drug
deliveries, gang activity, and shootings. A gas station just north of this location had been robbed
several times too.
¶ 26 Alka testified that, when he arrived at the scene, he observed a motorcycle that was turned
off and parked on the sidewalk “immediately in front of a designated crosswalk.” According to
Alka, the motorcycle was facing southbound, which was the subject’s direction of travel reported
by dispatch. Alka believed that the way this motorcycle was parked violated section 11-1303 of
the Illinois Vehicle Code (625 ILCS 5/11-1303 (West 2018)). In relevant portion, that statute
prohibits parking a vehicle on a sidewalk, “[e]xcept when necessary to avoid conflict with other
traffic, or in compliance with law or the directions of a police officer or official traffic-control
device.” 625 ILCS 5/11-1303(a)(1)(b) (West 2018). Alka acknowledged that he did not write in
his police report that the motorcycle was parked on the sidewalk or that it was parked illegally. He
also did not personally write defendant a parking ticket, though he did not know whether another
officer wrote one. Alka testified that he believed that the curb surrounding the corner where the
motorcycle was parked was painted yellow, which indicated that there was no street parking. Alka
believed that there would have been parking available to defendant at the open gas station further
north down the street. There was also a shoulder to park on “on the east side of the street closer to
13th Street.”
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2021 IL App (2d) 200350-U¶ 27 Alka testified that he spotted defendant walking northbound on a sidewalk on Sheridan
Road, approximately half a block away from the motorcycle. Defendant matched the description
from dispatch as a black male with black clothing. During Alka’s subsequent conversation with
defendant, defendant said that he did not have identification on him. Alka believed that this
violated section 6-112 of the Illinois Vehicle Code (625 ILCS 5/6-112 (West 2018)), which
requires motorists to have their licenses in their immediate possession while operating a motor
vehicle. Alka believed that defendant also violated the law by driving a motorcycle without a valid
motorcycle license. Alka testified that, had the incident not escalated the way that it did, he would
have arrested defendant based on not having a valid license on him and operating a motorcycle
without a motorcycle license. Alka acknowledged that he did not write in his police report that
defendant lacked a motorcycle license, nor did Alka know whether defendant received a ticket for
that offense. Asked generally whether he would arrest somebody for class B misdemeanors or
petty offenses, he said that it would depend on the facts, including the individual’s behavior and
cooperation.
¶ 28 Alka explained that defendant’s statements about looking for a Bluetooth device did not
make sense, given that defendant was looking for the device on the sidewalk rather than on the
road and that defendant was attempting to locate the device in pitch black without using any
artificial lighting. Alka thought that it would have been more reasonable for defendant to have
“pull[ed] his motorcycle around to look for” the device.
¶ 29 Alka suspected that defendant “might have been under the influence of something,” as
defendant was very uncooperative and his actions and statements “did not make clear sense.”
Although Alka was unable to determine that there was probable cause to believe that defendant
was under the influence of alcohol, Alka observed “possible indicators of intoxication.” Alka also
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2021 IL App (2d) 200350-Ubelieved that defendant “was at some point attempting to flee,” as defendant attempted to walk
away when Alka asked him his name.
¶ 30 Alka testified that the dispatcher did not inform him that defendant had a valid Firearm
Owners Identification card or a concealed carry permit. Dispatch normally would advise Alka if a
suspect had such card or permit. According to Alka, he believed prior to the frisk that defendant
may have been armed. One basis for Alka’s belief was that defendant consistently walked away
from him, which made him think that defendant was “attempting to be evasive for a particular
reason.” Alka also cited defendant’s “reluctance to give his name” as another basis for the belief
that defendant may have been armed. Another reason that Alka mentioned was that it “definitely
increased the caution in the air” when the dispatcher informed him that defendant was a prior
parolee and a gang member. Alka testified that he wanted to perform a pat down of defendant for
the safety of himself and others at the scene.
¶ 31 Alka testified that his belief that defendant may have been armed “increased” when
defendant started to walk away after Alka mentioned weapons and doing a pat down. According
to Alka, he believed at the time that defendant “was being evasive and was going to attempt to
flee.” Alka explained that, when he placed a hand on defendant and told him to stop, defendant’s
body “tensed up,” and defendant asked Alka why he was grabbing him. Alka characterized
defendant’s tone of voice as “aggressive” and “notably combative” without shouting. Additionally,
defendant’s right arm “definitely tensed up,” though defendant did not yank away from Alka.
When Farrell quickly approached defendant, defendant “started pulling his arm away.” Farrell
then pat defendant down. After doing so, Farrell gave Alka a “nonverbal cue” that defendant was
armed. Alka testified that nonverbal cues were common among officers so as not to provoke an
irrational response from a suspect.
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2021 IL App (2d) 200350-U¶ 32 Alka described how defendant resisted the officers’ attempts to put his hands behind his
back, which resulted in Alka tasing him. Once defendant was on the ground, he still was not
cooperative. The officers got defendant in handcuffs and then found the firearm in defendant’s
jacket pocket.
¶ 33 C. The Trial Court’s Ruling
¶ 34 The court granted defendant’s motion to suppress evidence. We discern the court’s
reasoning by combining the court’s explanation during its initial ruling with its explanation on a
subsequent date (the court directed the parties to submit additional case law to address some
questions that the court identified in its initial ruling).
¶ 35 The court determined that the “Terry stop” (see Terry v. Ohio, 392 U.S. 1 (1968)) began at
the outset of the encounter, when Laracuente activated his emergency lights. The court explained:
“A reasonable person would not have believed that the police by putting on their emergency lights
were giving him anything other than a directive to stay where he was, and in fact that was fortified
by them telling him to stay where he was.”
¶ 36 The court seemingly found that the initial report from rescue regarding a possibly
intoxicated motorist, though not an anonymous tip, did not justify the officers to conduct the Terry
stop. The court recognized that, although there was no indication as to why the rescue worker
believed that a motorcycle driver was intoxicated, the tip was reliable insofar as the responding
police officers observed at the scene a motorcycle and an African American male wearing black.
The court determined that, although case law indicates that the corroboration requirements for tips
are relaxed in cases involving potentially impaired drivers, the corroboration requirements are not
relaxed in cases such as this one, where the defendant is not driving a vehicle when the police
encounter him.
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2021 IL App (2d) 200350-U¶ 37 The court further determined that the responding officers did not have a reasonable
suspicion that defendant violated section 11-1303 of the Illinois Vehicle Code by parking on the
sidewalk. According to the court, the officers were not conducting a “plausible investigation” of
that offense. On this point, the court reasoned that “there were no parking places” in the area and
there was “no place to put the motorcycle other than on a sidewalk.” According to the court,
although it was an affirmative defense to section 11-1303 of the Illinois Vehicle Code that a person
had nowhere else to park, the police officers here could see that defendant did not have anywhere
else to park.
¶ 38 Notwithstanding the court’s finding that defendant was seized at the outset of the encounter
without reasonable suspicion, the court recognized that the officers quickly determined, upon
speaking to defendant, that he lacked identification. The court said that this lack of identification
“would cause a reasonable suspicion” that defendant may have committed various traffic offenses.
The court determined that the police officers were “entitled to investigate the license issue” and
that defendant made that investigation “very difficult” by being uncooperative. The court found
that the officers could have arrested defendant and charged him with driving without a valid
driver’s license. In the court’s view, however, the officers did not arrest defendant “until much
later” during the encounter.
¶ 39 The court disagreed with Alka’s assessment during his testimony that defendant’s manner
of parking his motorcycle and searching for his Bluetooth device “showed a lack of judgment
which could be consistent with intoxication.” The court noted that it “did not observe any indicia”
on the body camera footage that defendant was intoxicated. According to the court, defendant’s
manner of looking for the Bluetooth device was reasonable and did not provide “any form of
probable cause.”
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2021 IL App (2d) 200350-U¶ 40 The court further determined that there was no basis for the officers to frisk defendant. The
court acknowledged that North Chicago generally is a high-crime area. Additionally, the court
recognized that it might in some cases be “concerning” for a person to walk through a business
district in the middle of the night when most businesses are closed. However, the court noted that
there were no burglary reports here, nor could officers have reasonably inferred that defendant
planned to commit a robbery.
¶ 41 Presumably referring to what the court observed on the body camera footage, the court also
found that defendant did nothing “with his hands to lead the police to believe that he was armed.”
In a similar vein, the court noted that there were no visible “bulges” on defendant’s clothing that
could have indicated that he was armed. Nor would defendant’s “reticence in identifying himself”
to the police officers cause them to believe that he was armed.
¶ 42 The court recognized that the officers received information from dispatch that defendant
was “both a gang member and a parolee.” The court noted, however, that the dispatcher provided
“very little information” about defendant’s gang membership and did not specify defendant’s
criminal history that led to him being on parole. In its initial ruling, the court noted that police
officers are entitled to rely on information from LEADS. The court requested the parties to provide
additional cases to the court addressing “the weight the court should give to the fact that
[defendant] was known to be or believed to be a gang member and a convicted felon.” At the
following court date, however, the court did not specifically comment on the fact that the police
officers knew that defendant was a convicted felon and a gang member. Instead, the court
determined that the frisk “was based solely on the fact that the defendant was not being particularly
cooperative[,] which is not a basis for a frisk.”
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2021 IL App (2d) 200350-U¶ 43 The court denied the State’s motion for reconsideration. As part of its brief explanation for
its ruling, the court added to its reasoning that the community-caretaking doctrine did not apply
here. The State filed a certificate of impairment and a timely notice of appeal.
¶ 44 II. ANALYSIS
¶ 45 On appeal, the parties disagree on the following overarching issues: (1) when defendant
was “seized” during the encounter, (2) whether the officers were justified in conducting a Terry
stop, (3) whether the officers had a valid basis to frisk defendant for weapons, and (4) whether, if
the frisk was unjustified, the inevitable-discovery doctrine applies.
¶ 46 When reviewing a ruling on a motion to suppress evidence, we will not disturb the trial
court’s findings of historical fact unless such findings are against the manifest weight of the
evidence. People v. McDonough, 239 Ill. 2d 260, 266 (2010). Nevertheless, we are free to
undertake our own assessment of the facts in relation to the issues presented, and we may draw
our own conclusions when deciding what relief should be granted. McDonough, 239 Ill. 2d at 266.
“[W]e review de novo the ultimate question of whether the evidence should be suppressed.”
McDonough, 239 Ill. 2d at 266.
¶ 47 At the outset, we reject the State’s attempt to portray Alka’s interactions with defendant as
a consensual encounter. The body camera footage does not support a conclusion that Alka
attempted to initiate a consensual encounter. Instead, with emergency lights flashing, multiple
officers approached the area where defendant was walking down the sidewalk. There were no other
civilians around. Alka immediately ordered defendant to remove his hands from his pockets. When
defendant showed little interest in speaking with Alka and attempted to walk away, Alka
nevertheless ordered defendant to stop. These are not the hallmarks of a consensual encounter. See
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2021 IL App (2d) 200350-UMcDonough, 239 Ill. 2d at 268 (consensual encounters involve “no coercion or detention” and thus
do “not implicate any fourth amendment interests”).
¶ 48 Even more misguided is the State’s attempt to justify the seizure of defendant as the product
of a community-caretaking encounter. In his testimony, Alka never suggested that he was acting
in a community-caretaking capacity, nor did Alka ask defendant at the scene whether he needed
assistance. One of the characteristics of a community-caretaking encounter is that the officers were
“performing some function other than the investigation of a crime.” People v. Slaymaker, 2015 IL
App (2d) 130528, ¶ 16. Here, Alka obviously was investigating whether defendant was engaged
in criminal activity. From Alka’s first communications with defendant, the encounter was an
attempt at a “Terry stop,” and we will analyze the facts within that framework. See McDonough,
239 Ill. 2d at 268 (Terry stops are brief seizures, short of an arrest, for the purpose of investigating
suspicions of criminal activity).
¶ 49 Despite our rejection of some of the State’s arguments, for the following reasons, we
reverse the order granting defendant’s motion to suppress, and we remand the matter for further
proceedings. We hold that defendant was seized when he submitted to Alka’s order to “stop.” We
further hold that, when defendant was seized, the officers had a valid basis to conduct a Terry stop
due to their observation of a motorcycle parked on the sidewalk and because there was reason to
suspect that defendant had operated a motorcycle without a license in his immediate possession.
Additionally, we hold that, based on the events that unfolded during the Terry stop, the officers
had a valid basis to frisk defendant. Even if the frisk could not be justified as a Terry frisk, the
inevitable-discovery doctrine applies, so the evidence of the firearm need not be excluded.
¶ 50 A. When Defendant was Seized
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2021 IL App (2d) 200350-U¶ 51 “The conduct constituting the stop under Terry must have been justified at its inception.”
People v. Thomas, 198 Ill. 2d 103, 109 (2001). Thus, we must first determine when the Terry stop
began—i.e., the moment when defendant was “seized.”
¶ 52 The trial court determined that the seizure occurred at the beginning of the encounter, even
before the officers’ body cameras began recording, when Laracuente activated his emergency
lights. Defendant embraces that view, but he also argues alternatively that he was seized when he
complied with Alka’s command to remove his hands from his pockets. The State, by contrast,
argues that defendant was not seized until later in the encounter, when Alka grabbed defendant’s
arm to prevent him from walking away. For the following reasons, our conclusion regarding when
the seizure began diverges from the views espoused by the parties and the trial court.
¶ 53 “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.’ ”
(Internal quotation marks omitted.) People v. Luedemann, 222 Ill. 2d 530, 550 (2006) (quoting
Florida v. Bostick, 501 U.S. 429, 434 (1991)). “To determine whether a seizure occurred, ‘[w]e
look to the totality of the circumstances to determine whether a reasonable person would feel free
to leave under the circumstances.’ ” People v. Shipp, 2015 IL App (2d) 130587, ¶ 32 (quoting
People v. Beverly, 364 Ill. App. 3d 361, 370 (2006)). Factors that may indicate a seizure include:
“(1) the threatening presence of several officers; (2) the display of a weapon by an officer;
(3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” Luedemann, 222 Ill. 2d
at 553. This is not an exhaustive list, so a seizure may also occur based on “other coercive police
behavior.” Luedemann, 222 Ill. 2d at 557. Though activation of a squad car’s emergency lights is
“not per se an act of crime detection” (People v. Dittmar, 2011 IL App (2d) 091112, ¶ 27), such
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2021 IL App (2d) 200350-Ubehavior generally constitutes a show of police authority that commences a seizure. See Village of
Mundelein v. Minx, 352 Ill. App. 3d 216, 220 (2004) (a reasonable person in the defendant’s
position would not have felt free to walk away when an officer activated his emergency lights);
see also McDonough, 239 Ill. 2d at 271 (the State conceded that the defendant was seized when an
officer activated his emergency lights, so the supreme court declined to decide whether the use of
emergency lights “always constitutes a seizure within the fourth amendment”).
¶ 54 Here, defendant was walking down the sidewalk when multiple police officers arrived at
the scene in squad cars, one of which had its emergency lights activated. There were no other
civilians walking in the area, so a reasonable person in defendant’s position would have believed
that the lights were directed toward him. Even if Laracuente’s activation of his lights did not reflect
an intent to initiate a Terry stop, Alka then approached defendant and said, “Take your hands out
of your pockets, please.” A compelling argument could be made that, by this point, a reasonable
person in defendant’s position would not have felt free to leave.
¶ 55 But that does not end our inquiry. Even where a police officer exhibits a show of authority
that would lead a reasonable person to believe that he is not free to leave, a seizure does not occur
until the suspect submits to the assertion of authority. See Thomas, 198 Ill. 2d at 112. This rule
traces its origins to a case where a suspect fled from the police officers who were attempting to
effectuate a seizure. See California v. Hodari D., 499 U.S. 621, 629 (1991). However, the rule has
also been applied in circumstances where a suspect does not flee from officers. See, e.g., People
v. Evans, 2017 IL App (4th) 140672, ¶¶ 30-31 (even if an officer’s request for the defendant to
remove his hands from his pockets was a show of authority, the defendant resisted this authority,
and did not fully submit to it, where the defendant complied but then put his hands back in his
pockets).
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2021 IL App (2d) 200350-U¶ 56 “ ‘[W]hat may amount to submission depends on what a person was doing before the show
of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a
chair may submit to authority by not getting up to run away.’ ” People v. Cherry, 2020 IL App
(3d) 170622, ¶ 31 (quoting Brendlin v. California, 551 U.S. 249, 262 (2007)). Lower federal courts
have ruled that “a brief or momentary pause prior to flight does not amount to submission to
authority,” whereas “a momentary yield, accompanied by more, such as an attempt to converse
with the officer, may amount to a submission.” Cherry, 2020 IL App (3d) 170622, ¶ 32 (collecting
cases).
¶ 57 When the officers’ body camera footage began recording, defendant was walking down the
street with his hands in his pockets, apparently saying something to Laracuente about the color of
his Bluetooth device. Alka approached and told defendant to remove his hands from his pockets.
Defendant complied but continued walking down the sidewalk. Alka then requested that defendant
“hold on a second.” Defendant ignored Alka and continued walking down the sidewalk.
¶ 58 We cannot say that defendant’s actions to this point in the encounter reflected even a
momentary yield to Alka’s authority. Defendant argues that he submitted to the Terry stop when
he took his hands out of his pockets on Alka’s command, even though he failed to stop walking
and he ignored Alka’s request for him to stop. The premise of defendant’s argument does not hold
water. See United States v. Lowe, 791 F.3d 424, 433 (3rd Cir. 2015) (“When an officer effectuates
a Terry stop, his or her ‘show of authority’ is an implicit or explicit command that the person stop.”
(Emphasis in original)). We are unaware of any authority supporting that a person can submit to a
Terry stop without stopping.
¶ 59 Defendant relies on People v. Jackson, 389 Ill. App. 3d 283 (2009), in support of his
argument that he was seized when he removed his hands from his pockets in compliance with
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2021 IL App (2d) 200350-UAlka’s command. In Jackson, after being told three or four times to remove his hands from his
pockets, the defendant complied with the officer’s command. Jackson, 389 Ill. App. 3d at 284. As
the defendant removed his hands from his pockets, he dropped a gun to the ground. Jackson, 389
Ill. App. 3d at 284. The defendant then fled from the officer before being arrested. Jackson, 389
Ill. App. 3d at 285. Based on these facts, the appellate court affirmed an order granting the
defendant’s motion to suppress evidence. The court concluded that the police officer seized the
gun from the defendant “as a result of the defendant’s submission to authority.” Jackson, 389 Ill.
App. 3d at 289. In the court’s view, because the defendant’s act of removing the gun from his
pocket was the result of an unlawful seizure, it did not “make[ ] any difference” that the defendant
then fled from the officer. Jackson, 389 Ill. App. 3d at 288.
¶ 60 Jackson is distinguishable because defendant here failed to stop walking as he removed his
hands from his pockets. Moreover, unlike in Jackson, the police officers here did not discover the
gun in defendant’s possession at the precise moment when he complied with the command to
remove his hands from his pockets. Thus, we cannot say that the officers discovered defendant’s
possession of the gun due to his compliance with the command to remove his hands from his
pockets.
¶ 61 Turning back to the encounter here, Alka repeated: “Can you hold on a second?” This time,
defendant stopped, turned toward Alka, and said that he was not bothering anybody and that he
was just looking for his “earpiece.” Alka said, “we want to talk to you, okay?” Defendant turned
around again and started walking away from Alka. Alka asked defendant if he had any
identification with him. Defendant, still walking, responded, “no.” Alka followed defendant and
repeated, “Can I see your ID please?” Defendant responded that he did not have his identification.
Alka asked defendant if he could “stop walking for a second.” Defendant continued to walk away.
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2021 IL App (2d) 200350-UAlka told defendant to “stop walking, man.” Defendant finally stopped and soon was surrounded
by three police officers.
¶ 62 We hold that defendant submitted to police authority—and the seizure began—when Alka
ordered defendant to “stop walking, man,” defendant complied with that request, and three officers
surrounded him. The State argues that defendant “never submitted to the officers’ show of
authority.” We reject that argument. To conclude that defendant never submitted to the officers’
show of authority would require us to ignore that defendant, albeit reluctantly, provided his name
and date of birth to the officers while he was surrounded and, for the most part, remained
stationary. Nevertheless, we will take defendant’s behavior into consideration later in the analysis
when determining whether the officers had a valid basis to frisk him.
¶ 63 B. Whether the Terry Stop was Valid
¶ 64 The next question is whether the officers had a valid basis to conduct a Terry stop when
the seizure began. For the following reasons, we hold that they did.
¶ 65 The rule of Terry v. Ohio, 392 U.S. 1 (1968), has been codified in section 107-14(a) of the
Code of Criminal Procedure of 1963 (Code):
“A peace officer, after having identified himself as a peace officer, may stop any person in
a public place for a reasonable period of time when the officer reasonably infers from the
circumstances that the person is committing, is about to commit or has committed an
offense as defined in Section 102-15 of this Code, and may demand the name and address
of the person and an explanation of his actions. Such detention and temporary questioning
will be conducted in the vicinity of where the person was stopped.” 725 ILCS 5/107-14(a)
(West 2018).
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2021 IL App (2d) 200350-U¶ 66 As mentioned above, “[t]he conduct constituting the stop under Terry must have been
justified at its inception.” Thomas, 198 Ill. 2d at 109. In considering whether a Terry stop was
justified at its inception, “[a] court objectively considers whether, based on the facts available to
the police officer, the police action was appropriate.” Thomas, 198 Ill. 2d at 109. To that end, “the
police officer must be able to point to specific and articulable facts which, taken together with
rational inferences therefrom, reasonably warrant that intrusion.” Thomas, 198 Ill. 2d at 109.
Moreover:
“Viewed as a whole, the situation confronting the police officer must be so far from the
ordinary that any competent officer would be expected to act quickly. The facts supporting
the officer’s suspicions need not meet probable cause requirements, but they must justify
more than a mere hunch. The facts should not be viewed with analytical hindsight, but
instead should be considered from the perspective of a reasonable officer at the time that
the situation confronted him or her.” Thomas, 198 Ill. 2d at 110.
¶ 67 The parties dispute whether the rescue worker’s report of a “possible intoxicated
motorcycle driver” justified defendant’s detention pursuant to Terry. We need not reach that issue.
We hold that the Terry stop was justified at its inception because the police officers had a
reasonable suspicion that defendant illegally parked his motorcycle and operated the motorcycle
without a license in his possession.
¶ 68 Section 11-1303(a)(1)(b) of the Illinois Vehicle Code provides that no person shall park a
vehicle on a sidewalk, “[e]xcept when necessary to avoid conflict with other traffic, or in
compliance with law or the directions of a police officer or official traffic-control device.” 625
ILCS 5/11-1303(a)(1)(b) (West 2018). Here, police officers were dispatched around 1:40 a.m. to
a location for a report involving a black motorcycle driver dressed in black. When officers arrived
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2021 IL App (2d) 200350-Uat the scene shortly thereafter, they observed a motorcycle parked entirely on the sidewalk between
a crosswalk and a traffic light. They also observed defendant—who matched the description
provided by dispatch and was wearing a motorcycle jacket—walking half a block away. From the
officers’ body camera footage, there did not appear to be any other civilians walking in the area.
Under these circumstances, a reasonable police officer would have deduced that it was defendant
who parked the motorcycle on the sidewalk.
¶ 69 Given the hour and that there was minimal other traffic around, a reasonable police officer
also would have suspected that defendant did not need to park on the sidewalk and leave the
motorcycle turned off and unattended to “avoid conflict with other traffic.” 625 ILCS 5/11-1303(a)
(West 2018). The trial court did not explicitly make any finding to the contrary. Nor was there any
indication that defendant had parked on the sidewalk to comply with “law or the directions of a
police officer or official traffic-control device.” 625 ILCS 5/11-1303(a) (West 2018). Accordingly,
the officers had a reasonable suspicion that defendant illegally parked his motorcycle, which
justified a Terry stop.
¶ 70 In finding to the contrary, the trial court reasoned that the police officers could see that
“there were no parking places” in the area and that there was “no place to put the motorcycle other
than on a sidewalk.” The statute does not say, however, that motorists may park on a sidewalk so
long as there are no parking places around. At any rate, Alka testified that there was parking
available at an open gas station down the street and also on the shoulder “on the east side of the
street closer to 13th street.” The trial court further mentioned that there was not a “plausible
investigation” of a parking violation. That finding ignores that, while Alka and two other officers
interacted with defendant, Martin communicated with dispatch to ascertain the owner of the
motorcycle and to determine whether the owner had a valid license.
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2021 IL App (2d) 200350-U¶ 71 Moreover, the question is not whether defendant violated the statute but whether the
officers’ observation of the motorcycle on the sidewalk justified approaching defendant for
investigative purposes. See People v. Chatmon, 236 Ill. App. 3d 913, 924 (1992) (“Although both
parties wish to debate whether defendant violated section 11-1303(a)(1)(j) of the Illinois Vehicle
Code, such a determination need not be made for purposes of determining whether the gun seized
from defendant must be suppressed. The key question is whether Officer Jocson had a reasonable,
articulable suspicion of criminal activity such that he could approach the vehicle.”). Here, the
officers were “within constitutional bounds” to approach defendant for investigative purposes.
Chatmon, 236 Ill. App. 3d at 925.
¶ 72 Aside from the potential parking violation, immediately prior to the seizure, defendant told
Alka that he did not have any identification on him. This gave rise to a reasonable suspicion that
defendant also violated section 6-112 of the Illinois Vehicle Code, which requires motorists to
have their license or permit in their “immediate possession at all times when operating a motor
vehicle.” 625 ILCS 5/6-112 (West 2018).
¶ 73 Accordingly, the Terry stop here was justified at its inception.
¶ 74 C. Whether the Officers had a Valid Basis to Frisk Defendant
¶ 75 We next address whether the police officers had a valid basis to frisk defendant. We
determine that the events that unfolded during the Terry stop justified the officers to conduct the
frisk.
¶ 76 “Authority to effect a Terry stop does not automatically confer authority to frisk an
individual.” People v. Linley, 388 Ill. App. 3d 747, 753 (2009). However, “[w]hen 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,” the officer has “the power to
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2021 IL App (2d) 200350-Utake 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 24. To justify a frisk, “ ‘the officer must
reasonably believe that the defendant is armed and dangerous.’ ” Shipp, 2015 IL App (2d) 130587,
¶ 43 (quoting People v. Davis, 352 Ill. App. 3d 576, 580 (2004)). This means that “ ‘a reasonably
prudent person, when faced with the circumstances that the police confronted, would have believed
that his safety or the safety of others was in danger.’ ” Shipp, 2015 IL App (2d) 130587, ¶ 43
(quoting Davis, 352 Ill. App. 3d at 580). Any such frisk must be limited to determining whether
the suspect is armed. Shipp, 2015 IL App (2d) 130587, ¶ 43.
¶ 77 During the Terry stop, the officers learned from dispatch that defendant did not have a valid
motorcycle license. At this point, the officers had probable cause to arrest defendant and to search
him incident to that arrest. See 625 ILCS 5/6-101(b) (West 2018) (“No person shall drive a motor
vehicle unless he holds a valid license or permit, or a restricted driving permit ***.”); 625 ILCS
5/6-104(a) (West 2018) (“No person shall operate a motor vehicle unless such person has a valid
license with a proper classification to permit the operation of such vehicle ***.”); see also People
v. Jalinsky, 205 Ill. App. 3d 651, 654-55 (1990) (a police officer was justified in arresting the
defendant for driving a motorcycle without having the proper class of license and then searching
the defendant incident to that arrest). Indeed, Alka testified that, had the encounter with defendant
not escalated the way that it did, he would have arrested defendant anyway for driving without a
motorcycle license and for not having his drivers’ license (a class D license) in his possession. The
fact that defendant was never formally charged with these offenses does not preclude us from
determining that probable cause existed for an arrest. See People v. Johnson, 408 Ill. App. 3d 107,
126 (2010).
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2021 IL App (2d) 200350-U¶ 78 Nevertheless, the officers here did not arrest defendant as soon as they had probable cause
to do so. Instead, Alka apparently wanted to continue his investigation, and the State attempts to
justify the frisk of defendant’s person through the lens of Terry rather than as a search incident to
arrest. We hold that, based on what the officers knew about defendant and their observations of
his behavior, they were reasonable in believing that a frisk was appropriate for their own safety.
See Evans, 2017 IL App (4th) 140672, ¶ 45 (even if certain factors, when taken alone, do not give
rise to a reasonable suspicion that an individual is armed, the court must consider the factors
together as part of the totality of the circumstances).
¶ 79 During the Terry stop, the officers learned from dispatch that defendant was a prior parolee
and, according to LEADS, a gang member. Alka testified that those facts “definitely increased the
caution in the air.” Additionally, when interacting with the police officers, defendant conducted
himself in a manner that could have led a reasonable officer to consider him a flight risk. For
example, as Alka calmly attempted to convince defendant to identify himself, defendant trailed off
in mid-sentence and started to walk away. Later during the encounter, Alka asked defendant
whether he had any weapons on him (“You don’t have any weapons on you do you by chance?
Knives, pistols, anything like that?”). Alka was entitled to ask that question, and defendant does
not argue to the contrary. See People v. Gonzalez, 184 Ill. 2d 402, 406, 423 (1998) (prearrest
questioning as to whether the defendant was “carrying any guns, needles or knives” did not require
Miranda warnings). Although defendant responded, “no officer,” to Alka’s question, defendant
simultaneously started to walk away from the three officers toward the street. 2 Alka testified that
2
The State argues that defendant’s attempt to leave the scene would have given the officers
probable cause to arrest him for obstruction of a peace officer. Given that we resolve this appeal
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2021 IL App (2d) 200350-Uhe believed that defendant’s conduct was evasive and that defendant was “going to attempt to
flee.”
¶ 80 In his brief, defendant proposes that it is possible that he intended not to flee but to “resume
looking for his earpiece.” Based on the body camera footage, we determine that a reasonable
officer could have interpreted defendant’s actions as indicating that he was attempting to leave the
scene. Even if defendant merely intended to resume his search for his Bluetooth device, given that
this was a valid Terry stop, defendant was not free to “leave or [t]o voluntarily terminate” the
encounter.” People v. Webb, 2020 IL App (1st) 180110, ¶ 19.
¶ 81 Alka then grabbed defendant’s arm, which was permissible. See Webb, 2020 IL App (1st)
180110, ¶ 19 (“If a defendant fails to submit to a lawful attempt at effectuating a Terry stop, the
officers have the right to take steps to force compliance with their directives in order to effectuate
a Terry investigative stop in a safe and effective manner.”). Alka then informed defendant that the
officers were going to pat him down. Alka testified that defendant’s right arm “tensed up” and that
defendant then used a “notably combative” and “aggressive” tone of voice with Alka. On the video,
Alka can be heard repeatedly telling defendant not to pull away, as defendant repeatedly
questioned why Alka was grabbing him.
¶ 82 To recap, immediately before the frisk, the police officers knew that defendant was a
convicted felon and, according to LEADS, a gang member. They also had probable cause to arrest
defendant for driving a motorcycle without a proper license. The officers then observed defendant
behave in an evasive manner indicative of potential flight when asked whether he had any
weapons. When Alka grabbed defendant’s arm to prevent him from leaving, defendant apparently
in the State’s favor, we need not address that specific argument.
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2021 IL App (2d) 200350-Uattempted to pull away from Alka. Under the totality of the circumstances, we hold that the officers
had a reasonable and articulable suspicion that defendant was presently armed and dangerous, such
that they were justified in frisking him for their own safety.
¶ 83 The officers had a valid basis to conduct a Terry stop and a valid basis to frisk defendant
for weapons. Accordingly, the trial court erred in granting defendant’s motion to suppress
evidence. But even if the frisk could not be justified through the lens of Terry, the inevitable-
discovery doctrine applies. “ ‘For the inevitable discovery doctrine to apply, three criteria must be
met: (1) the condition of the evidence must be the same when found illegally as it would have been
when found legally; (2) the evidence would have been found by an independent line of
investigation untainted by the illegal conduct; and (3) the independent line of investigation must
have already begun when the evidence was discovered illegally.’ ” People v. Baker, 2020 IL App
(2d) 180300, ¶ 21 (quoting People v. Shanklin, 250 Ill. App. 3d 689, 696 (1993)). The doctrine can
apply where, prior to an allegedly problematic frisk, police officers had probable cause to arrest
the defendant and the officers would have found the contraband incident to an arrest. Baker, 2020
IL App (2d) 180300, ¶ 22.
¶ 84 As explained above, here, during a valid Terry stop, and prior to the frisk, the officers
developed probable cause to arrest defendant for driving a motorcycle without a valid motorcycle
license. The evidence showed that, had the incident not escalated the way that it did, Alka could
have and would have arrested defendant anyway. Had defendant been searched incident to that
arrest, the officers would have found the gun. Under these circumstances, all three requirements
of the inevitable-discovery doctrine are met. Specifically, (1) there would have been no change in
the gun’s condition, (2) the gun would have been found by an independent line of investigation
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2021 IL App (2d) 200350-Uuntainted by any illegality in the Terry frisk; and (3) the independent line of investigation had
already begun before the officers conducted the Terry frisk.
¶ 85 In arguing against the application of the inevitable-discovery doctrine, defendant relies on
People v. Davis, 352 Ill. App. 3d 576 (2004). Davis is distinguishable, as the trial court in that case
made a factual finding that the officer would not have arrested the defendant for the underlying
minor traffic violation (riding a bicycle without a light) but instead would have issued a citation.
Davis, 352 Ill. App. 3d at 580. Here, by contrast, Alka testified that he would have arrested
defendant for the traffic violations, had the situation not escalated. The trial court did not make a
finding that Alka testified incredibly on this point.
¶ 86 Nevertheless, defendant notes that, (1) during the encounter, Alka never mentioned
violations of the Illinois Vehicle Code, (2) Alka’s police report did not mention such violations,
and (3) defendant was never ticketed for such violations. Defendant thus submits that,
notwithstanding Alka’s testimony to the contrary, Alka “did not have an intention to effectuate an
arrest.” Defendant asks us to make a credibility assessment, which is not the role of a court of
review. See McDonough, 239 Ill. 2d at 266 (“[T]he 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.”).
¶ 87 III. CONCLUSION
¶ 88 For the reasons stated, we reverse the judgment of the circuit court of Lake County and
remand for further proceedings.
¶ 89 Reversed and remanded.
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