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People v. Smithers

OPINION FILED DECEMBER 1, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

LOUIS SMITHERS, APPELLEE.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Robert E. Manning, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

This appeal concerns the admissibility of evidence obtained during a police "stop and frisk." The defendant was found in possession of a pistol and charged with unlawful use of weapons. Prior to trial, the defendant filed a motion to suppress the pistol taken from him following a pat-down search. The Peoria County circuit court allowed the motion. The appellate court affirmed, with one justice dissenting. (75 Ill. App.3d 883.) We granted the State leave to appeal under our Rule 315 (73 Ill.2d R. 315). We find the search to have been reasonable and reverse the judgment of the appellate court.

At approximately 4 a.m. on February 10, 1978, Officers Robert Nelson and Alan Meisener of the Peoria city police department were radio dispatched to the Spanish Lady Tavern. A telephone call to the police station several minutes earlier indicated there was a "man with a gun" at the tavern. Officer Meisener stated that when he arrived at the tavern he heard yelling from inside. There were approximately 20 patrons in the tavern at that time. He entered the front door and noticed the defendant, Louis Smithers, walking toward him. The defendant was wearing a large goose-down coat, which was buttoned and zipped. The defendant, then 10 to 15 feet from Officer Meisener, reversed direction and walked toward the tavern's rear exit. Officer Meisener testified that he asked the bartender, Robert Foraker, if the defendant had been involved in the fracas. The bartender responded, "Yes." Officer Meisener then instructed the second officer, Robert Nelson, to stop the defendant. Officer Nelson ran around the building and stopped the defendant as he was leaving the passageway connected to the tavern's rear exit. Without his consent, the defendant was then given a pat-down search. The search produced a gun. Louis Smithers was then charged with two counts of unlawful use of weapons. Ill. Rev. Stat. 1977, ch. 38, pars. 24-1(a)(4), 24-1(a)(10).

It should be noted that there were certain discrepancies in the evidence. The bartender testified that it was not he who associated the defendant with the trouble. Rather, he stated, it was one of the patrons. He did, however, acknowledge hearing someone say, "there he goes out the back door," referring to the defendant.

A second discrepancy involves the presence of the defendant in the tavern. While the officers and the bartender state that they saw the defendant in the tavern, the defendant contends that he never actually entered the tavern. He approached the tavern, but after seeing the commotion inside, turned around and walked back down the gangway.

After hearing the testimony, the circuit court found that there were not sufficient articulable facts to support the stop and frisk of the defendant. The officer's action was based on a "mere hunch," the court stated, and the motion to suppress the gun was granted. The appellate court affirmed. We find that there were sufficient articulable facts to authorize the stop and frisk, and that the circuit court's suppression order was contrary to the manifest weight of the evidence.

The Constitution of the United States provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *." (U.S. Const., amend. IV.)

The provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. (See Davis v. Mississippi (1969), 394 U.S. 721, 22 L. Ed.2d 676, 89 S.Ct. 1394; Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868.) The fourth amendment requires that any seizure be "reasonable." As with other categories of police action subject to fourth amendment constraints, the reasonableness of such seizures depends upon a balancing of the public's interest and the individual's right to personal security free from arbitrary interference by law officers. (See United States v. Brignoni-Ponce (1975), 442 U.S. 873, 45 L.Ed.2d 607, 95 S.Ct. 2574; Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; W. Schaefer, The Suspect and Society, Criminal Procedure and Converging Constitutional Doctrines (1967); Caracappa, Criminal Law and Criminal Procedure: Some Current Issues, 16 Duq. L. Rev. 499, 504 (1977-78).) Although the officer need not have probable cause to arrest or search in order to stop and frisk (see Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; Sibron v. New York (1968), 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889), he must have knowledge of sufficient articulable facts at the time of the encounter to create a reasonable suspicion that the person in question has committed, or is about to commit, a crime. Brown v. Texas (1979), 443 U.S. 47, 61 L.Ed.2d 357, 99 S.Ct. 2637; Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868, 1880; Beck v. Ohio (1964), 379 U.S. 89, 96, 13 L. Ed.2d 142, 148, 85 S.Ct. 223, 228.

The fact that an officer has reason to stop a citizen does not necessarily justify the further intrusion of a search for weapons. The officer may conduct a pat-down search only if he has reason to believe that he is dealing with an armed and dangerous individual. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; Adams v. Williams (1972), 407 U.S. 143, 32 L.Ed.2d 612, 92 S.Ct. 1921.) Here again the officer's belief is not judged by the probable-cause test. He need only have the reasonable belief that either his safety, or that of others, is in danger. See Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868; Sibron v. New York (1968), 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889.

These same concerns are found in our Code of Criminal Procedure of 1963. Section 107-14 of the Code provides:

"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 * * *." (Ill. Rev. Stat. 1977, ch. 38, par. 107-14.)

Similarly, section 108-1.01 provides:

"When a peace officer has stopped a person for temporary questioning pursuant to Section 107-14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for ...


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