People v. Evans

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Appellate Court Date: 2017.04.24
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People v. Evans, 2017 IL App (4th) 140672Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CHARLES EVANS, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-14-0672
Filed March 9, 2017
Decision Under Appeal from the Circuit Court of Vermilion County, No. 13-CF-393;
Review the Hon. Craig H. DeArmond, Judge, presiding.
Judgment Affirmed.
Counsel on Jacqueline L. Bullard and Mariah K. Shaver (argued), of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
David J. Robinson and John M. Zimmerman (argued), of State’s
Attorneys Appellate Prosecutor’s Office, of Springfield, for the
People.
Panel JUSTICE KNECHT delivered the judgment of the court, with
opinion.
Justices Harris and Appleton concurred in the judgment and opinion.
OPINION
¶1 Defendant, Charles Evans, appeals his conviction, arguing the trial court erred by denying
his pretrial motion to quash arrest and suppress evidence. On appeal, defendant argues he was
unlawfully stopped by law enforcement and subjected to an unconstitutional search and the
trial court erred by not suppressing the fruits of the search. We affirm.
¶2 I. BACKGROUND
¶3 In April 2014, a jury convicted defendant of possession of a controlled substance (cocaine)
(720 ILCS 570/402(c) (West 2012)) and possession of drug paraphernalia (720 ILCS
600/3.5(a) (West 2012)). In July 2014, the trial court sentenced defendant to 30 months of
probation. On appeal, defendant only challenges the trial court’s denial of his “motion to quash
arrest and suppress evidence.” We limit our recitation of the facts to those relevant to the
motion.
¶4 At approximately 1:54 a.m. on July 27, 2013, defendant was walking in the 300 block of
Porter Street in Danville, Illinois. Officer Kyle Harrold of the Danville police department was
dispatched to a possible burglary at 314 Porter Street. Officer Harrold was the first to arrive on
the scene and noticed defendant walking down the street. Seeing defendant, Officer Harrold
turned his squad car around, parked, and exited the vehicle. Officer Harrold approached
defendant and asked whether defendant had seen anyone running in the area. Defendant denied
seeing anything and stated he just left a friend’s house down the block. Officer Harrold knew
defendant’s friend and knew the friend trafficked narcotics out of his house. During the course
of this conversation, defendant placed his hands in the pockets of his shorts. Officer Harrold
asked defendant to remove his hands, which defendant did, but defendant immediately placed
his hands back in his pockets. Officer Harrold again asked defendant to remove his hands from
his pockets, and defendant complied but placed his hands back in his pockets. This cycle
occurred several times throughout the remainder of the conversation, and defendant ultimately
asked Officer Harrold why he needed to remove his hands from his pockets. At that point,
Officer Harrold informed defendant he was going to pat defendant down for weapons, and
Officer Harrold conducted a frisk.
¶5 During the frisk, Officer Harrold felt what he knew to be a smoking pipe in one of
defendant’s pockets. Officer Harrold knew the object was a smoking pipe because of his
experience with the Vermilion County metropolitan enforcement group, which is responsible
for investigating narcotics crimes. Officer Harrold placed defendant in handcuffs at that point
and told defendant he was under arrest for the drug paraphernalia in his pocket. Officer Harrold
then removed the smoking pipe from defendant’s pocket and began to reach into defendant’s
other pocket, at which point defendant began struggling in an attempt to prevent Officer
Harrold from searching the other pocket. Officer Harrold radioed for backup, and the struggle
continued until Officer Jon Stonewall arrived. The two officers were then able to subdue
defendant and search his pocket. The search revealed a small Baggie containing a hard,
rock-like substance. Officer Harrold field tested the substance and concluded it was cocaine. A
state chemist later confirmed the substance was cocaine. Defendant was charged by
information with possession of a controlled substance and possession of drug paraphernalia.
¶6 Defendant filed a pretrial “motion to quash arrest and suppress evidence.” The motion
alleged Officer Harrold lacked reasonable suspicion to stop defendant and therefore did not
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have a right to search defendant. Defendant argued the evidence obtained from the search
should be suppressed.
¶7 At the hearing on the motion to suppress, Officer Harrold testified he approached
defendant for the purpose of determining whether he was involved in the burglary or saw any
possible suspects or other suspicious activity. Officer Harrold asked where defendant was
coming from, to which defendant responded he just left his friend’s house down the block.
During the conversation, defendant placed his hands in his pockets, and Officer Harrold asked
him to remove them several times. When asked, defendant would remove his hands and then
place them back into his pockets. Officer Harrold testified he was concerned for his safety
because he was alone with defendant and defendant was much larger than he was. Officer
Harrold testified he did not know whether defendant was armed, but his concern grew after
defendant refused to keep his hands visible during the conversation. Officer Harrold testified
he knew the area was a high-narcotics-crime area, and in his experience, those involved with
narcotics were often armed with a firearm. Officer Harrold specifically testified the reason he
frisked defendant was to determine whether defendant had a weapon in his pocket.
¶8 The trial court concluded the search was a permissible Terry frisk because a “reasonably
prudent person when [f]aced with these circumstances could have believed his safety was in
danger.” See Terry v. Ohio, 392 U.S. 1 (1968). The court stated the following factors supported
Officer Harrold’s reasonable belief his safety was in danger: (1) the late hour, (2) the size
difference, (3) defendant’s refusal to keep his hands visible, (4) the character of the
neighborhood, (5) the fact Officer Harrold was alone and responding to a possible burglary,
and (6) Officer Harrold’s subjective concern for his safety. The court specifically found the
initial encounter was consensual and defendant was not a burglary suspect at the time Officer
Harrold approached him. Rather, Officer Harrold was merely attempting to gather information
relating to the possible burglary in the area. The court denied defendant’s motion.
¶9 The case proceeded to trial, and defendant was convicted of unlawful possession of a
controlled substance and unlawful possession of drug paraphernalia and sentenced to 30
months of probation. This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues the trial court erred by denying his “motion to quash arrest
and suppress evidence.” Defendant asserts his constitutional rights were violated because he
was unlawfully searched and, therefore, the items seized during the search should have been
suppressed.
¶ 12 A. Titling and Tendering the Motion To Quash Arrest and Suppress Evidence
¶ 13 At the outset, we must comment on defendant’s pretrial “motion to quash arrest and
suppress evidence.” “This title is improper because defendant is not challenging his arrest as
void but challenging whether the arresting officer had probable cause or reasonable suspicion.
A proper title for such a motion is ‘motion to suppress evidence.’ ” People v. Winchester, 2016
IL App (4th) 140781, ¶ 22, 66 N.E.3d 601 (citing People v. Hansen, 2012 IL App (4th)
110603, ¶ 63, 968 N.E.2d 164 (“defendants should stop filing such motions and should instead
file only motions to suppress evidence”)). Since deciding Hansen, we have repeatedly
reiterated the impropriety of titling motions to suppress evidence as “motions to quash arrest”
and indicated defense counsel should cease filing such motions. Id. ¶¶ 24-27 (citing several
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cases reiterating the Hansen decision). Noting the lack of success in our effort to make this
message clear, we recently called upon trial courts to sua sponte reject such motions and “give
the counsel who filed the inappropriate motion the opportunity to file a proper motion to
suppress under section 114-12 of the [Code of Criminal Procedure of 1963 (Criminal
Procedure Code) (725 ILCS 5/114-12 (West 2014))].” Id. ¶ 30. We disapprove of filing
meaningless motions to “quash arrest” when the goal is to suppress evidence, and we again call
upon trial courts to sua sponte reject such motions on their face.
¶ 14 B. Standard of Review and Burden of Proof
¶ 15 “[W]e review a trial court’s ruling on a motion to suppress under a two-part standard: the
trial court’s factual findings will be reversed only if they are against the manifest weight of the
evidence, but the trial court’s ultimate ruling on whether suppression is warranted is reviewed
de novo. [Citation.]” People v. Chambers, 2016 IL 117911, ¶ 76, 47 N.E.3d 545. On a motion
to suppress, defendant carries the burden of proving the search and seizure were unlawful.
People v. Price, 2011 IL App (4th) 110272, ¶ 17, 962 N.E.2d 1035. “ ‘The burden of
producing evidence, or the burden of production, rests with the defendant.’ [Citation.]
‘ “However, once the defendant makes a prima facie showing of an illegal search and seizure,
the burden shifts to the State to produce evidence justifying the intrusion.” ’ [Citation.]” Id.¶ 16 C. Police-Citizen Encounters
¶ 17 The United States Constitution and the Illinois Constitution of 1970 protect citizens from
unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. We
interpret article I, section 6, of the Illinois Constitution of 1970 in lockstep with the fourth
amendment of the United States Constitution for search and seizure purposes. People v.
Fitzpatrick, 2013 IL 113449, ¶ 15, 986 N.E.2d 1163. “The touchstone of the Fourth
Amendment is reasonableness, and the reasonableness *** is determined by assessing, on the
one hand, the degree to which [police action] intrudes upon an individual’s privacy and, on the
other, the degree to which it is needed for the promotion of legitimate governmental interests.”
(Internal quotation marks omitted.) People v. Cregan, 2011 IL App (4th) 100477, ¶ 21, 961
N.E.2d 92 (quoting United States v. Knights, 534 U.S. 112, 118-19 (2001)).
“It is well settled that not every encounter between the police and a private citizen
results in a seizure. [Citations.] Courts have divided police-citizen encounters into
three tiers: (1) arrests, which must be supported by probable cause; (2) brief
investigative detentions, or ‘Terry stops,’ which must be supported by a reasonable,
articulable suspicion of criminal activity; and (3) encounters that involve no coercion
or detention and thus do not implicate fourth amendment interests. [Citations.]” People
v. Luedemann, 222 Ill. 2d 530, 544, 857 N.E.2d 187, 196 (2006).
A third-tier encounter is commonly referred to as a “consensual encounter” and does not
involve a seizure. Id.¶ 18 In its ruling, the trial court referred to the initial encounter between Officer Harrold and
defendant as “community caretaking.” Both the State and defendant agree this case does not
involve a community caretaking issue. See id. at 548, 857 N.E.2d at 198-99 (“[T]he
‘community caretaking’ doctrine is analytically distinct from consensual encounters and is
invoked to validate a search or seizure as reasonable under the fourth amendment. It is not
relevant to determining whether police conduct amounted to a seizure in the first place.”). In
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our opinion, the court merely misspoke when referring to the encounter as a community
caretaking encounter. See id. at 544-45, 857 N.E.2d at 196-97 (noting the long history of
incorrectly referring to a consensual encounter as community caretaking). We will proceed
with considering whether the initial encounter was a consensual encounter or Terry stop.
¶ 19 D. Seizure
¶ 20 Defendant argues he was seized at the moment Officer Harrold began speaking to him, or
in the alternative, when Officer Harrold first requested he remove his hands from his pockets.
The State responds the initial encounter was consensual, and a seizure did not occur until
Officer Harrold frisked defendant. According to Officer Harrold’s testimony, the encounter
began when Officer Harrold saw defendant walking in the vicinity of the reported burglary and
Officer Harrold turned his squad car around, parked, and exited the vehicle. When he
approached defendant, he explained to defendant he was investigating a call and wanted to
know whether defendant had seen anyone running in the area.
¶ 21 In support of his first argument, defendant relies on a statement by the trial court calling the
initial stop an “investigatory stop.” Terry stops are often called “investigatory stops.”
However, the context of the court’s ruling shows the court did not use the term in that sense;
rather, the court meant Officer Harrold was attempting to gather information about the possible
burglary, i.e., Officer Harrold was investigating a possible crime. The court specifically
concluded the initial encounter was not an “investigatory stop” in the sense defendant uses the
term because the court concluded the initial encounter was not a Terry stop. This difference in
meaning is crucial because a Terry stop requires a seizure, and the court’s conclusion the initial
encounter was not a Terry stop indicates the initial encounter did not result in a seizure. Fourth
amendment protections are not triggered until a search or seizure occurs. The central inquiry of
our analysis is at what point was defendant seized.
¶ 22 “We adhere to the view that a person is ‘seized’ only when, by means of physical force or a
show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446
U.S. 544, 553 (1980); see also People v. Murray, 137 Ill. 2d 382, 390, 560 N.E.2d 309, 131
(1990), abrogated by Luedemann, 222 Ill. 2d at 548, 857 N.E.2d at 198-99. (Murray adopted
the Mendenhall standard and Luedemann abrogated Murray on unrelated grounds.) Defendant
appears to confuse the standard for determining whether a person is seized by citing both
Mendenhall and Florida v. Bostick, 501 U.S. 429 (1991). Our supreme court explained
Mendenhall and Bostick provide different standards applicable to different situations.
Luedemann, 222 Ill. 2d at 550, 857 N.E.2d at 200. To determine which standard applies, the
inquiry is whether the individual’s movement is restrained by something independent of police
action. Id. For example, where a person is seated on a bus or in a parked vehicle when
confronted by police, the individual’s movement is restrained by the enclosure in which the
individual is seated, which is independent of police action. Id. The Bostick standard applies
where such an independent restraint on movement is shown, and Mendenhall applies where no
independent restraint is shown. Id. Here, defendant was walking down the street when his
encounter with the police began; thus, Mendenhall applies, and the standard under Bostick is
inapplicable. See id. (stating the Mendenhall standard is appropriate “when the person is
walking down a street or through an airport lobby”).
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¶ 23 Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to
leave.” Mendenhall, 446 U.S. at 554.
“To assist in determining whether a reasonable person believes he or she is not free
to leave, courts use the following four indicators, commonly known as the Mendenhall
factors: (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.” People v. Lake, 2015 IL App (4th) 130072, ¶ 37, 28 N.E.3d 1036 (citing
Mendenhall, 446 U.S. at 554).
“[T]hose factors are not exhaustive and *** a seizure can be found on the basis of other
coercive police behavior that is similar to the Mendenhall factors.” Luedemann, 222 Ill. 2d at
557, 857 N.E.2d at 203.
¶ 24 Defendant compares this case to People v. Thomas, 198 Ill. 2d 103, 759 N.E.2d 899 (2001),
and People v. Smith, 331 Ill. App. 3d 1049, 780 N.E.2d 707 (2002). In Thomas, a police officer
attempted to stop the defendant, who was riding a bicycle, by pulling his squad car into the
defendant’s path for the purpose of conducting a “field interview” with the defendant
regarding the defendant’s purported involvement in drug trafficking. Thomas, 198 Ill. 2d at
106, 759 N.E.2d at 901. The defendant evaded the police officer’s attempt to stop him and was
later stopped by means of force. Id. at 106-07. The court determined the police officer’s
attempted roadblock would have been a seizure if the defendant had submitted to the show of
authority. Id. at 112, 759 N.E.2d at 904. Defendant here attempts to liken Officer Harrold’s
turning his squad car around, parking the car, exiting his car, and approaching defendant to the
attempted roadblock in Thomas. These circumstances are not similar. No facts in the record
indicate Officer Harrold attempted to block defendant’s path or prevent him from continuing
on his way. If this were the case, the burden of proving such facts would have been on
defendant. See Price, 2011 IL App (4th) 110272, ¶ 17, 962 N.E.2d 1035. The record suggests
Officer Harrold saw defendant walking in the vicinity of a possible crime and Officer Harrold
peaceably approached defendant to speak to him.
¶ 25 In Smith, the defendant was standing in front of a “known drug house” when officers
approached the defendant to ask what he was doing. Smith, 331 Ill. App. 3d at 1051, 780
N.E.2d at 709. The defendant responded he was waiting for his cousin and nervously looked
around. Id. The officers asked the defendant what was in his pockets, but the defendant refused
to answer. Id. The officers asked the defendant to remove his hands from his pockets, but the
defendant began backing away from the officers. Id. At that point, the officers demanded the
defendant stop and remove his hands, but the defendant did not comply with the requests. Id.The officers then grabbed defendant, forced him to the ground, and placed him under arrest. Id.One of the officers testified he had no idea what might have been in the defendant’s pockets,
and the officer did not testify he feared for his safety. Id. at 1051, 780 N.E.2d at 710.
¶ 26 Notably, the court in Smith determined no seizure occurred during the initial encounter. Id.
at 1052, 780 N.E.2d at 710. The court observed: “ ‘There is nothing in the Constitution which
prevents a policeman from addressing questions to anyone on the streets.’ ” Id. at 1053, 780
N.E.2d at 710 (quoting Terry, 392 U.S. at 34 (White, J., concurring)). In dicta, the court
indicated a seizure could have occurred when officers told the defendant to “stop and to
remove his hands from his pockets” after the defendant had stopped answering the officers’
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questions and had begun to back away. Id. at 1053, 780 N.E.2d at 711. However, because the
defendant did not comply with the officers’ requests to stop and remove his hands from his
pockets, the seizure did not occur until defendant was forcibly restrained. Id.¶ 27 Like Smith, we conclude the initial encounter here was a consensual encounter. None of the
Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.
Indeed, “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. [Citations.]” People
v. Gherna, 203 Ill. 2d 165, 178, 784 N.E.2d 799, 807 (2003). We reject defendant’s assertion a
seizure occurred the moment Officer Harrold approached defendant.
¶ 28 Defendant next argues he was seized at the moment Officer Harrold first requested he
remove his hands from his pockets. According to Officer Harrold’s testimony, defendant
placed his hands in his pockets during the conversation, and Officer Harrold asked defendant
to remove them. Defendant complied but then placed his hands right back in his pockets, and
Officer Harrold again asked him to remove his hands. This pattern continued for a couple of
minutes while Officer Harrold and defendant spoke. This case differs from Smith, with respect
to the seizure issue, in one key aspect: at the point the officers in Smith asked the defendant to
remove his hands, the defendant had indicated he wished to terminate the encounter by
refusing to answer further questions and backing away in an attempt to leave. Here, defendant
continued to consent to the conversation with Officer Harrold even after Officer Harrold asked
defendant to remove his hands from his pockets several times and never indicated an intent to
terminate the conversation prior to being frisked. Thus, we conclude the facts in Smith are not
instructive on the question of whether defendant was seized when Officer Harrold asked
defendant to remove his hands from his pockets.
¶ 29 Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to
leave.” Mendenhall, 446 U.S. at 554. The only relevant Mendenhall factor is the fourth: “the
use of language or tone of voice indicating that compliance with the officer’s request might be
compelled.” Lake, 2015 IL App (4th) 130072, ¶ 37, 28 N.E.3d 1036. However, “assertion of
authority [absent a physical show of force] by police does not constitute seizure unless
defendant submits” to the assertion of authority. Smith, 331 Ill. App. 3d at 1054, 780 N.E.2d at
711 (citing California v. Hodari D., 499 U.S. 621 (1991)).
¶ 30 Officer Harrold’s repeated requests clearly indicated he wanted defendant to keep his
hands visible during their conversation. The fact defendant continued to place his hands back
into his pockets shows defendant did not fully submit to Officer Harrold’s request. Defendant
did not appear to believe compliance with Officer Harrold’s request was compulsory because
he did not comply with Officer Harrold’s obvious wish. Defendant opines the repeated
requests he remove his hands from his pockets may have signaled he was suspected of
wrongdoing, thus impacting his willingness to continue the encounter. However, the record
contradicts this assertion. Defendant’s willingness to continue the conversation is evidenced
by the fact he continued speaking to Officer Harrold even after Officer Harrold asked him
several times to remove his hands from his pockets. Further, the nature of the conversation
indicated defendant was not a suspect or even a witness to the possible crime Officer Harrold
was investigating.
¶ 31 We recognize defendant’s argument Officer Harrold’s request for defendant to remove his
hands from his pockets was a show of authority. Even if the request was a show of authority,
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defendant resisted the authority by continuing to place his hands back into his pockets. Further,
the central question remains whether a reasonable person would have felt free to terminate the
encounter. The request for defendant to keep his hands visible did not prevent him from
exercising his right to terminate the encounter, and a reasonable person in his place should not
have believed that right had been extinguished by the request. The touchstone of the fourth
amendment is reasonableness, and the request to keep one’s hands visible is not an
unreasonable restraint of liberty. It merely serves as a protection to both officer and citizen. We
reject defendant’s argument he was seized when Officer Harrold requested he remove his
hands from his pockets and conclude defendant was not seized until Officer Harrold frisked
him.
¶ 32 E. Terry Frisk During a Consensual Encounter
¶ 33 In Terry, the United States Supreme Court addressed the standard by which we assess
second-tier encounters. Pursuant to Terry, officers are justified in conducting brief
investigatory seizures upon reasonable suspicion the individual is involved in criminal
activity. Terry, 392 U.S. at 10. Additionally, the officer may conduct an investigatory frisk for
weapons upon reasonable suspicion the individual is armed and dangerous. Id. The Illinois
General Assembly codified these rules in sections 107-14 and 108-1.01 of the Criminal
Procedure Code. 725 ILCS 5/107-14, 108-1.01 (West 2014). In Terry, the Court reasoned:
“When 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, it would appear to be clearly unreasonable to deny the officer the power to take
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.
See also People v. Close, 238 Ill. 2d 497, 939 N.E.2d 463 (2010) (recognizing Terry is the
appropriate standard for applying sections 107-14 and 108-1.01 of the Criminal Procedure
Code).
¶ 34 Though Terry sets forth a clear standard for assessing an officer’s actions when the officer
approaches a citizen after developing reasonable suspicion (1) of criminal activity and (2) the
citizen is armed and dangerous, it is less clear what standard applies when an officer initiates a
consensual encounter and then develops reasonable suspicion the citizen is armed and
potentially dangerous. We find our supreme court’s decision in People v. Colyar, 2013 IL
111835, 996 N.E.2d 575, instructive.
¶ 35 In Colyar, police officers observed a car parked at a motel entrance for an unusual amount
of time and approached the vehicle to ask the driver why he was parked there. Id. ¶¶ 6-7. While
speaking with the driver, the officers observed, in plain view, a large bullet in the center
console. Id. ¶ 8. After observing the bullet, the officers ordered the passengers out of the car
and frisked the passengers for weapons. Id. ¶¶ 9-10. The State argued:
“[W]hat began as a neutral encounter escalated when the officers observed the bullet in
plain view in the center console of defendant’s vehicle. Reasonably suspecting that
defendant or his passengers were armed and presently dangerous and that criminal
activity may be afoot, the officers were permitted under Terry and [Michigan v. Long,
463 U.S. 1032 (1983),] to detain defendant and his passengers and perform protective
searches of their persons and areas of the car that would provide immediate access to a
weapon.” Id. ¶ 28.
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The defendant conceded the initial interaction was justified, but he argued the frisk was
unconstitutional because possession of a bullet is not per se illegal; therefore, no reasonable
suspicion of criminal activity supported the Terry frisk. Id. ¶¶ 29-30.
¶ 36 While considering the propriety of the search, the Colyar majority observed:
“Here, the record demonstrates that [the officers] were in a vulnerable situation
when they observed the bullet. It was dusk and the officers were on foot in a parking lot
away from their vehicle. The two officers, who had not drawn their weapons, were also
outnumbered by defendant and his two passengers, who were in a running car. Finally,
the officers had only a brief exchange with defendant prior to their observation of the
plain-view bullet. In other words, the officers were forced to make a quick decision
based on limited information after seeing the bullet.” Id. ¶ 42.
“Reviewing the actions of [the officers] under an objective standard, we believe that a
reasonably cautious individual in a similar situation could reasonably suspect the presence of a
gun, thus implicating officer safety, based on the bullet clearly visible in defendant’s center
console.” Id. ¶ 43. The court observed “when an officer has a reasonable suspicion during an
investigatory stop that the individual may be armed and dangerous, the officer is permitted to
take necessary measures to determine whether the person is armed and to neutralize any threat
of physical harm. [Citation.]” Id. ¶ 45. Thus, the court concluded the officers’ decision to pat
down the passengers of the car was objectively reasonable and did not offend the fourth
amendment. Id.
¶ 37 The Colyar decision is significant because the original encounter between the officers and
the citizens began as a consensual encounter but escalated into a permissible Terry frisk after
the police officers, during the consensual encounter, developed reasonable suspicion the
citizens may be armed and dangerous. By rejecting the defendant’s argument the police
officers lacked reasonable suspicion of criminal activity, the supreme court’s decision
indicates police officers need not have reasonable suspicion of criminal activity to conduct a
Terry frisk for weapons during a consensual encounter but, rather, need only have reasonable
suspicion the citizen is armed and potentially dangerous.
¶ 38 Justice Thomas supports this position in his special concurrence. Id. ¶ 74 (Thomas, J.,
specially concurring) (“ ‘If the officer has commenced a nonseizure confrontation without a
pre-existing reasonable suspicion supporting a frisk, but such suspicion suddenly appears
(most likely because of the suspect’s conduct), then the officer is entitled to frisk for his own
protection.’ ” (quoting 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at 843 (5th ed. 2012)).
¶ 39 Justice Thomas also notes a federal circuit split on the question of whether a reasonable
suspicion criminal activity is afoot and the citizen is armed and dangerous must predicate a
lawful Terry frisk for weapons during a consensual encounter. Id. ¶ 71. Justice Thomas
observed “this is actually a hotly contested issue in the federal courts.” Id. Some circuits
require reasonable suspicion (1) of criminal activity and (2) the individual is armed and
dangerous, but other circuits only require reasonable suspicion the individual is armed and
dangerous to predicate a Terry frisk for weapons. Id.; compare United States v. Burton, 228
F.3d 524, 528 (4th Cir. 2000), and United States v. Gray, 213 F.3d 998 (8th Cir. 2000) (holding
all Terry frisks must be predicated by reasonable suspicion (1) of criminal activity and (2) the
individual is armed and dangerous), with United States v. Romain, 393 F.3d 63, 75-76 (1st Cir.
2004), United States v. Orman, 486 F.3d 1170, 1176-77 (9th Cir. 2007), and United States v.
Bonds, 829 F.2d 1072, 1075 (11th Cir. 1987) (holding a Terry frisk during a consensual
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encounter need only be predicated by reasonable suspicion the individual is armed and
dangerous).
¶ 40 Justice Thomas further outlined the reasons courts allow police officers to conduct a Terry
frisk during a consensual encounter upon developing reasonable suspicion the citizen is armed
and potentially dangerous.
“The principal reasons several courts have upheld the right to frisk for weapons during
consensual encounters were thoroughly spelled out by Justice Baldock in his dissent in
United States v. House, 463 Fed. App’x 783, 793 (10th Cir. 2012) (Baldock, J.,
dissenting): first, ‘the strong governmental interest in officer safety is present even in
consensual encounters’; second, ‘requiring reasonable suspicion of criminal activity
would hamstring officers’ ability to investigate suspicious behavior’; and third,
‘requiring reasonable suspicion of criminal activity before a frisk would prevent
officers from taking “reasonable steps to ensure their safety” during consensual
encounters.’ [Citation.] Moreover, the reason that Justices Burke and Freeman are
forced to rely on Justice Harlan’s special concurrence in Terry is that the Supreme
Court in Terry did not limit the right to search for weapons only to those cases in which
the police have a reasonable suspicion of criminal activity. Rather, the Terry majority
held that the rules for protective frisks ‘will have to be developed in the concrete factual
circumstances of individual cases.’ [Citation.]” (Emphasis omitted.) Colyar, 2013 IL
111835, ¶ 71, 996 N.E.2d 575 (Thomas, J., specially concurring).
Based upon the foregoing, we conclude a police officer may conduct a Terry frisk during a
consensual encounter upon developing reasonable suspicion the citizen is armed and
dangerous; the officer need not develop reasonable suspicion of criminal activity. In such
cases, the seizure and frisk will occur contemporaneously because a consensual encounter is,
by definition, not a seizure. Accordingly, a police officer must have reasonable suspicion the
individual is armed and dangerous at the time of the frisk. By so concluding, we note
defendant’s arguments relating to the lack of reasonable suspicion defendant was involved in
criminal activity are inapplicable.
¶ 41 F. Reasonable Suspicion
¶ 42 A Terry frisk during a consensual encounter must be predicated by reasonable suspicion
the individual is armed with a weapon and, therefore, presently dangerous. See id. ¶¶ 34-37. To
develop reasonable suspicion, the officer must have more than an “inarticulate hunch”; the
officer must “point to specific and articulable facts which, taken together with rational
inferences from those facts” demonstrate the suspicion is reasonable. (Internal quotation marks
omitted.) Id. ¶ 40.
“ ‘[T]he officer need not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger.’ When reviewing the
reasonableness of an officer’s conduct, it is appropriate to give due weight to ‘the
specific reasonable inferences which [the officer] is entitled to draw from the facts in
light of his experience.’ [Citation.]” Id. ¶ 36 (quoting Terry, 392 U.S. at 27).
“[W]e apply an objective standard to decide whether the facts available to the officer at the
time of the incident would lead an individual of reasonable caution to believe that the action
was appropriate.” Id. ¶ 40.
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¶ 43 We agree with the trial court’s conclusion Officer Harrold had reasonable suspicion
defendant was armed. Officer Harrold testified to the following facts. Officer Harrold was
alone with defendant at a late hour in an area Officer Harrold knew was a high-narcotics-crime
area. Officer Harrold was substantially smaller than defendant. Defendant informed Officer
Harrold he was coming from a house Officer Harrold knew, through his work as a police
officer, belonged to a person who trafficked narcotics, and in Officer Harrold’s experience,
individuals who deal with narcotics are often armed with a weapon. Officer Harrold was
concerned for his safety because of the size difference, and he did not know whether defendant
had a gun or knife in his pocket. Defendant acted peculiarly by continually placing his hands in
his pockets, even after Officer Harrold asked him to remove his hands from his pockets several
times throughout the conversation, and defendant ultimately refused to remove his hands and
asked why he needed to. Defendant argues because he was wearing basketball shorts made of a
slick, cloth material, any weapon in his pocket should be visible and obvious. We are not
persuaded by this argument because a small weapon might be easily concealed in such a
pocket. Taking all the factors together, it was objectively reasonable for Officer Harrold to
suspect defendant may have been armed with a weapon.
¶ 44 Defendant cites People v. Anderson, 304 Ill. App. 3d 454, 463, 711 N.E.2d 24, 30 (1999),
for the proposition placing something in one’s pocket does not give rise to reasonable
suspicion. Defendant also cites People v. Walker, 2013 IL App (4th) 120118, ¶ 46, 995 N.E.2d
351, which held the officers lacked reasonable suspicion based on the mere fact the defendant
appeared nervous about the contents of her purse and attempted to grab it from the officers.
The officers in Walker also admitted in their testimony part of the reason they wished to search
defendant’s purse was to discover what defendant appeared to be hiding in the purse. Id.
¶¶ 39-40, 51. Defendant cites many other cases concluding factors such as the lateness of the
hour, anxious behavior, and character of the neighborhood, without more, cannot establish
reasonable suspicion. See, e.g., People v. Linley, 388 Ill. App. 3d 747, 753, 903 N.E.2d 791,
798 (2009); see also People v. Davis, 352 Ill. App. 3d 576, 580-83, 815 N.E.2d 92, 97-99
(2004) (discussing several cases considering whether reasonable suspicion was properly
developed). The Davis court cited People v. Dotson, 37 Ill. App. 3d 176, 345 N.E.2d 721(1976), to conclude the simple fact an individual attempts to put his hands in his pockets does
not necessarily create reasonable suspicion the individual is armed or dangerous. Davis, 352
Ill. App. 3d at 581, 815 N.E.2d at 98. The Dotson court determined many innocuous reasons
explain placing one’s hands in one’s pockets, such as the desire to keep warm. Dotson, 37 Ill.
App. 3d at 177, 345 N.E.2d at 722.
¶ 45 These cases are similar to one another because they discuss certain factors which, when
taken alone, do not give rise to reasonable suspicion an individual is armed with a weapon.
However, the basis for reasonable suspicion must be assessed upon the totality of the
circumstances in the instant case. See Terry, 392 U.S. at 29. Defendant misses the mark by
forgetting these factors may still be considered together with other factors to render an
officer’s suspicion objectively reasonable. Officer Harrold did not decide to frisk defendant
based solely on one fact alone; he decided to frisk defendant based on the quantum of facts he
learned while speaking to defendant, coupled with defendant’s refusal to keep his hands
visible.
¶ 46 Additionally, defendant mischaracterizes Officer Harrold’s testimony by stating Officer
Harrold never testified he suspected defendant was armed and dangerous. At the hearing on the
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motion to suppress, Officer Harrold testified he was concerned for his safety because of the
size difference between him and defendant, and he continuously stated he did not know
whether defendant was armed, which was the reason he decided to frisk defendant. Though he
may not have used the exact terminology or “magic words,” we conclude Officer Harrold’s
testimony established the fact he suspected defendant might have been armed and dangerous.
¶ 47 In sum, we conclude the totality of the circumstances known to Officer Harrold at the time
of the frisk warranted the reasonable suspicion defendant was armed and thus dangerous,
thereby permitting Officer Harrold to conduct a Terry frisk.
¶ 48 G. Scope of the Search
¶ 49 On appeal, defendant argues Officer Harrold exceeded the scope of a permissible Terry
frisk. The State responds defendant forfeited the issue. To preserve an issue for appeal, “the
record must show that (1) a contemporaneous objection to the trial court’s error was made, and
(2) the issue was contained in a written posttrial motion.” (Emphasis in original.) People v.
Rathbone, 345 Ill. App. 3d 305, 308-09, 802 N.E.2d 333, 336 (2003) (citing People v. Enoch,
122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988)). In defendant’s pretrial motion to suppress
evidence, defendant argued Officer Harrold lacked reasonable suspicion defendant was
involved in criminal activity and was armed and dangerous. Defendant did not assert the frisk
exceeded the scope permitted by Terry. Defendant’s posttrial motion for a new trial also
alleges Officer Harrold did not have reasonable suspicion defendant was involved in criminal
activity and he “did not have a right to search defendant” pursuant to Terry. Again, the posttrial
motion lacked any reference to the scope of the frisk. We agree with the State’s assertion this
forfeiture is significant because the record is completely devoid of evidence relating to the
manner in which the frisk was conducted. We also note the burden to produce evidence the
frisk exceeded the scope of a permissible Terry frisk was on defendant, and defendant failed to
meet that burden. We conclude defendant has forfeited any argument relating to the scope of
the frisk.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm defendant’s conviction. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS
5/4-2002 (West 2014).
¶ 52 Affirmed.
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