People v. Gonzalez

JUSTICE HEIPLE,

dissenting:

Defendant was a passenger in a car that was stopped for a minor traffic violation.¹ When the driver stopped, defendant left the car and started to walk home. Without any reason to believe defendant was committing or had committed a crime, the police officer forcibly detained defendant at the scene and searched him, finding a gun. The majority opinion holds that a passenger of a motor vehicle stopped for a traffic violation may be detained by police without any suspicion either that the passenger had committed a crime or that he posed any articulable danger to the safety of the police officer.² This ruling not only invites routine and arbitrary searches and seizures of honest law-abiding citizens, it also eviscerates the protections against unreasonable searches and seizures in both the Illinois and federal constitutions. Ill. Const. 1970, art. I, § 6; U.S. Const., amend. IV Therefore, I respectfully dissent.

The fundamental purpose of the fourth amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. People v. Dilworth, 169 Ill. 2d 195, 201 (1996), citing Camara v. Municipal Court, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 935, 87 S. Ct. 1727, 1730 (1967). At the heart of the protections afforded by the fourth amendment is the requirement of individualized suspicion. Even in cases where obtaining a warrant based on probable cause is impractical, the police must have knowledge of sufficient facts “to create a reasonable suspicion that the person in question has committed, or is about to commit, a crime.” People v. Smithers, 83 Ill. 2d 430, 434 (1980); People v. Scott, 148 Ill. 2d 479, 503 (1992); People v. Flowers, 179 Ill. 2d 257, 262-63 (1997). A showing of individualized suspicion is constitutionally required except in the rare case where the privacy interest implicated by the search or seizure is minimal and an important government interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion. King v. Ryan, 153 Ill. 2d 449, 458 (1992), quoting Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 624, 103 L. Ed. 2d 639, 664, 109 S. Ct. 1402, 1417 (1989). The majority’s abandonment of the individualized suspicion standard in this case is wholly unwarranted.

The majority gratuitously asserts that the intrusion on the passenger’s liberty is minimal because the car in which the passenger is travelling has already been stopped. In so ruling, however, the majority trivializes the liberty interest at stake in this case. The only encounter many citizens of this state will ever have with the police will be a routine traffic stop. Allowing police officers to arbitrarily detain passengers in vehicles stopped for traffic violations without any reason to believe the passenger has committed a crime or threatens the safety of the police officer ensures that this encounter will be “annoying, frightening, and perhaps a humiliating experience.” Terry v. Ohio, 392 U.S. 1, 24-25, 20 L. Ed. 2d 889, 908, 88 S. Ct. 1868, 1882. The “thousands upon thousands of petty indignities” legitimized by the majority opinion will have a substantial impact on the liberty and freedom of the citizens of this state. See Maryland v. Wilson, 519 U.S. 408, 419, 137 L. Ed. 2d 41, 51, 117 S. Ct. 882, 888 (1997) (Stevens, J., dissenting, joined by Kennedy, J.).

Maryland v. Wilson does not control the result in this case. In fact, the Wilson Court explicitly declined to address the issue presented in this case. See Wilson, 519 U.S. at 415 n.3, 137 L. Ed. 2d at 48 n.3, 117 S. Ct. at 886 n.3. The majority asserts this case does not present the issue left open in Wilson because defendant was not subjected to a lengthy detention and the defendant passenger did not ask the police officer whether he could leave the scene of the traffic stop. 184 Ill. 2d at 417-18. The length of defendant’s detention, however, is simply not relevant here. The critical inquiry in this case is whether the police officer had a sufficient basis for detaining defendant in the first place. The majority’s insistence that defendant needed to ask the police officer if he could leave is astonishing and indicative of a police state mentality. The right to be free from unreasonable searches and seizures is one of our most precious constitutional rights. The exercise of this right does not depend on the grace of law enforcement officials. This opinion trashes the protections of the fourth amendment. See Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880 (1968) (noting fourth amendment protections, if left to good faith of police officers, would “evaporate”).

The majority fails to articulate any reason why a police officer would be safer if a passenger in a vehicle stopped for a traffic violation is detained at the scene rather than allowed to walk away. A police officer must have a reasonable suspicion that a passenger in a vehicle stopped for a traffic violation has committed or is about to commit a crime. This standard is more than sufficient to protect officer safety. “It does no disservice to police officers *** to insist upon exercise of reasoned judgment.” Wilson, 519 U.S. at 423, 137 L. Ed. 2d at 53, 117 S. Ct. at 891 (Kennedy, J., dissenting).

Finally, it must be noted that the majority opinion looks only to the fourth amendment in the federal constitution. Although defendant has not argued that the evidence in this case should be suppressed under the provision against unreasonable searches and seizures found in the Illinois Constitution, we are free to look to these protections as well. Ill. Const. 1970, art. I, § 6. “This court unquestionably has the authority to interpret provisions of our state constitution more broadly than the United States Supreme Court interprets similar provisions of the federal constitution.” People v. Krueger, 175 Ill. 2d 60, 74 (1996).

In In re May 1991 Will County Grand Jury, 152 Ill. 2d 381 (1992), this court unanimously pronounced that the provision against unreasonable searches and seizures in the Illinois Constitution “goes beyond Federal constitutional guarantees by expressly recognizing a zone of personal privacy.” In re May 1991 Will County Grand Jury, 152 Ill. 2d at 391. In re May 1991 Will County Grand Jury is particularly instructive in this case because it demonstrates that this court is unwilling to abandon the individualized suspicion requirement even in cases where such a result is authorized under federal constitutional law. See In re May 1991 Will County Grand Jury, 152 Ill. 2d at 389-93 (holding Illinois Constitution requires a showing of individualized suspicion before a grand jury can subpoena evidence of a noninvasive physical nature even though such a showing is not required under federal constitution). Thus, Illinois constitutional law provides an even more compelling basis for invalidating the search and seizure in this case. Those who cherish their right to be free from arbitrary invasions of privacy can only hope that a more enlightened court in a future case will restore our citizens’ constitutional rights which this court has today taken away.

JUSTICES HARRISON and NICKELS join in this dissent.

1 The car was traveling 40 miles per hour in a 30-mile-per-hour zone.

2 Although the majority also holds that the police officer’s search of defendant was legal, this argument fails if the initial seizure of defendant was illegal. See People v. Wardlow, 183 Ill. 2d 306, 317 (1998) (weapon discovered after illegal Terry stop must be suppressed as product of unconstitutional seizure of person).