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June 5, 1989


The opinion of the court was delivered by: ROSZKOWSKI


 This action comes before the court on the defendants Franklin Freeman, a/k/a Frankie Freeman ("Freeman") and Ralphfield Hudson's ("Hudson") motion to suppress certain items of physical evidence. For the reasons set forth below, the court denies their motion to suppress.



 The defendants request the court to rule on the constitutional propriety of the relevant Rockford police officers' actions when they seized the defendants' persons and searched the defendants 1981 brown Cadillac. Not surprisingly, the parties are at odds as to the events of January 24, 1988 and the legal conclusions to be drawn from those events. Indeed, both parties approach the actions of the police on January 24, 1988 under different legal theories.

 The defendants operate under a Terry stop and frisk approach. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The defendants argue that Rockford police officer Chester Epperson ("Epperson") did not have an articulable factual basis that criminal activity was afoot; therefore, Officer Epperson did not have the constitutionally requisite basis to stop the defendants. Terry, 392 U.S. at 21, 88 S. Ct. at 1880. Moreover, the defendants continue, that Officer Epperson certainly did not have any reason to believe that the defendants were "armed and dangerous;" therefore, Officer Epperson had no cause to "frisk" or "pat down" the defendants as he and other officers did. Terry, 392 U.S. at 27, 88 S. Ct. at 1883. Instead, the defendants conclude that Officer Epperson acted on mere suspicion and thus outside the confines of the Fourth Amendment.

 The government counters that indeed if one considers the "totality of circumstances" facing Officer Epperson and examines all of the relevant factors, it is plain to see that Officer Epperson had an articulable factual basis that criminal activity was afoot and thus acted properly and within the constraints of the Constitution and Ill. Rev. Stat. ch. 38 § 707-14 para. 108-1.01. See United States v. Cortez, 449 U.S. 411, 418-19, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981). More importantly, the government adds that regardless of whether Officer Epperson acted impermissibly under a Terry analysis, Officer Epperson did not invoke Fourth Amendment activity until after he spotted open liquor containers in the defendants' Cadillac and at that point, he had "probable cause" to arrest the defendants for the offense of transportation of open liquor containers. See United States v. Watson, 423 U.S. 411, 418, 96 S. Ct. 820, 825, 46 L. Ed. 2d 598 (1976). The government continues that the subsequent searches of the defendants' persons and vehicles were searches incident to arrest and thus permissible under the Fourth Amendment. See New York v. Belton, 453 U.S. 454, 461, 101 S. Ct. 2860, 2864-65, 69 L. Ed. 2d 768 (1981).

 First, the court agrees with the government's characterization that no seizure of the defendants occurred until Officer Epperson demanded that the defendants place their hands on the trunk of their car. Prior to this juncture, at no time were the defendants seized as such, so no Fourth Amendment activity was invoked. The mere presence of a police officer or his intent to investigate or actual investigation of an area does not necessarily qualify as a seizure or search for Fourth Amendment purposes. See Terry, 392 U.S. at 19 n. 16, 88 S. Ct. at 1879 n. 16; U.S. v. Borys, 766 F.2d 304, 309 (7th Cir. 1985), cert. denied, 474 U.S. 1082, 88 L. Ed. 2d 893, 106 S. Ct. 852. Accordingly, the fact that Officer Epperson decided to investigate the defendants on the night of January 24, 1988, does not impugn Freeman and/or Hudson's constitutional rights, even if the officer was driven by a mere hunch or suspicion at that point. Thus, the relevant time for our Fourth Amendment inquiry is at the point of seizure which the court finds to be when Officer Epperson demanded the defendants to place their hands on the trunk of their car.

 The next inquiry, then, is whether Officer Epperson had "probable cause" that a crime had occurred, not merely an articulable factual basis that criminal activity was afoot when he seized the defendants.

 The answer to this inquiry is most difficult and requires a close examination of the events of January 24, 1988. In this branch of the inquiry, the court begins with the premise that if indeed Officer Epperson did see two of the three liquor bottles open, he had "probable cause" to seize the defendants for a liquor violation. See Watson, 423 U.S. at 418, 96 S. Ct. at 825; see also Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983). In determining whether Officer Epperson had probable cause, the court must be wary of the use of the defendant's liquor violation as a mere "pretext" to act on the officer's suspicions of more serious drug offenses. See 2 W. LaFave, Treatise on Search & Seizure § 5.2(e) (1978). That is, the initial traffic offense was manufactured to allow the police officer to act on his suspicion. Indeed, the instant case presents fairly classic circumstances where a pretextual traffic violation could occur.

 In particular, on the night of January 24, 1988 Officer Epperson was aware of a "drug house" being in relatively close proximity to the defendants' brown Cadillac. (Tr. 11). Epperson was also apprised by his passenger that night that drug activity occurred in the area of Woodlawn and Bruce Streets. (Tr. 41). Furthermore, Epperson recognized the defendant, Frankie Freeman, in the Cadillac as a former felon. (Tr. 14, 23, 48-49). Officer Epperson was familiar with this area and knew it to be one suffering a relatively high incidence of crime. (Tr. 10, 23). Epperson had also seen a pedestrian, traveling toward the parked car, turn around when ostensibly the pedestrian spotted Epperson's unmarked police cruiser. (Tr. 12, 19). Finally, Epperson admits that based on these factors, among others, he decided to investigate the brown Cadillac and he ...

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