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August 13, 1993



The opinion of the court was delivered by: JAMES B. ZAGEL

Several police officers saw incidents, learned and remembered facts which led to a stop and frisk which uncovered a weapon. The collective knowledge of all officers is what counts, United States v. Hensley, 469 U.S. 221, 232, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985), and for ease of analysis, I recite the facts as if only one police officer ("officer") were involved. *fn1"

 Officer was on patrol near midnight in downtown Elgin. He was in plain clothes and an unmarked car. He saw two men walking normally, cross the middle of a well lit street near the train tracks. One (Feliciano) wore a dark jacket; the other (Mason) wore a multi-colored jacket. Officer also saw a young male Laotian (Sath) standing near the Elgin train station. Officer saw Feliciano and Mason were looking at Sath who was the only person in the area. Feliciano and Mason went to a corner of the train station parking lot where no vehicles were parked. They stood near an embankment of the Fox River. The embankment is a few feet above the river, and there are no steps down to the river. Officer moved and was unable, for a few moments, to see anyone but Sath. Then Mason came up to Sath, spoke to him, and then walked in the direction of where he had come from. Sath picked up his suitcase, and walked away in another direction, westward. Officer then saw both Feliciano and Mason look at Sath, for a few seconds, and then walk eastward. Officer went up to Sath and learned that Mason asked Sath to come help his injured friend. Sath said no because, as Sath told Officer, Sath had seen the friend walk and the friend was uninjured. Mason then asked Sath if he had 50 cents, Sath said he had used all his money for a train ticket and had none left. Mason walked away. Sath told Officer that he thought Mason and Feliciano were going to "mug" him.

 Officer believed Sath was probably right and he thought "if they failed to rob one person, they may try to rob another one." At that time of night there was no one there but Sath, Mason and Feliciano. Officer decided to stop Mason and Feliciano. He began to look for them. Officer then saw Mason and Feliciano walking on the lighted streets. When he got close he recognized Feliciano as a member of the Latin King gang who, on a previous occasion, told Officer his name and that he had just been released from prison. *fn2" Officer stopped Feliciano and Mason and frisked them both, discovering a 22 caliber Beretta semi-automatic pistol in Feliciano's sock. A knife and small cleaver were found on Mason.

 The exclusionary rule is designed, perhaps poorly so, to protect some of the rights guaranteed by the Constitution. One desirable consequence of the rule is that it often fosters better police work; more aggressive investigation to corroborate what the police suspect may be the case. The hardworking officer will get good warrants where the lazy officer will not. *fn3"

 One perverse consequence of the exclusionary rule in stop and frisk cases is that it often deters only the alert, energetic and dutiful officer. The uncaring time-server who wears a star will rarely be stirred to stop and frisk anyone. It is much easier to sit and just watch even the most suspicious conduct than it is to intervene before it becomes obvious to anyone that a crime is being committed. The indifferent officer always waits until there is probable cause and perhaps even longer than that. It is always safe to wait until the failure to act might subject one to discipline. *fn4"

 In this case, one could not have disciplined Officer for letting Feliciano and Mason walk away. On the other hand, what Officer did here would not have been done by an indifferent officer. No motion would need to be decided because no stop would have been made and no gun recovered. However, the application of the exclusionary rule is not to be avoided because Officer was doing his best. We do sometimes apply rules to exclude evidence seized by officers who have done their best and acted in the belief they were within the law. If this is wrong, it is not up to this Court to change it.

 Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), a stop and frisk of a person is permitted when the police have a reasonable suspicion, supported by articulable facts, that the person was, is, or is about to be, engaged in criminal activity. Id. at 22. The doctrine is explicated in Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979); United States v. Sokolow, 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989); and United States v. Hensley, 469 U.S. 221, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985).

 The test of whether suspicion is reasonable, is flexible, and dependent on the totality of the circumstances--there is no bright-line rule. Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990).

 In this case, the facts are clearly articulated by Officer. Feliciano or Mason walked openly on the street and then to a place near a river. They neither ran nor hid. Walking to a parking lot where there are no cars does establish that they were not walking to their car, but it also establishes that their purpose was not to steal cars. The encounter with Sath might have been attempt robbery under Illinois law. If Feliciano and Mason had intended to take money from Sath by force or threat, then Mason's false claim to Sath that Feliciano was injured and needed assistance was a substantial step toward the commission of the offense. The spider's invitation to the fly. Sath thought he was going to be mugged and his reasons for thinking so were not all that inadequate. He knew Mason wanted money; he knew Feliciano and Mason were together (so it was two against one); he knew Mason wanted him to go where Feliciano was standing and that Mason lied to him to get him to do so. Most people (including police officers) would regard Mason's actions as giving rise to a reasonable suspicion that a crime was in the making. And this is true even if one leaves out (as was done here) any calculations based on the demeanor of Mason toward Sath. Demeanor often signals intent, but it is difficult to articulate what it is that is alarming about demeanor *fn5" and Sath did not say he was alarmed by Mason's demeanor.

 After Officer spoke to Sath he had, of course, no proof of attempt robbery because he had only circumstances suggesting but not proving Feliciano's and Mason's intent. Intent could be proven by the admission of either Mason or Feliciano or by the testimony of some third person to whom they admitted their intent, but none of this evidence would be readily available. The law does not require such evidence in order to justify either stop or arrest. There are few cases which talk about the degree of certainty required for probable cause, but it is not very high. Indeed, grave errors by police are not inconsistent with probable cause. Hill v. California, 401 U.S. 797, 802, 28 L. Ed. 2d 484, 91 S. Ct. 1106 (1971) (mistaken identification is an adequate basis for probable cause even where the subject protested, truthfully, to the officers that he was not the man for whom they were looking); Houser v. Geary, 465 F.2d 193, 196 (9th Cir. 1972) (the officer's "inferences might be wrong in fact, but they are . . . more reasonable than not, and that is enough for probable cause"), cert. denied, 409 U.S. 1113, 34 L. Ed. 2d 696, 93 S. Ct. 927 (1973). One rare attempt to define the quantum of proof for probable cause is found in the older case of Browne v. State:

It is not necessary that the evidence be sufficient to prove ultimate guilt beyond a reasonable doubt or even that it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility.

 24 Wis.2d 491, 129 N.W.2d 175, 180 (Wis. 1964), cert. denied, 379 U.S. 1004 (1965).

 Other courts have implied that probable cause requires proof that criminal conduct is more probable than not, see People v. Mercado, 68 N.Y.2d 874, 501 N.E.2d 27, 30, 508 N.Y.S.2d 419 (N.Y. 1986), cert. denied, 479 U.S. 1095, 107 S. Ct. 1313, 94 L. Ed. 2d 166 (1987), but most recent cases do not support this view. See United States v. Cruz, 834 F.2d 47, 50 (2nd Cir. 1987), cert. denied, 484 U.S. 1077, 98 L. Ed. 2d 1018, 108 S. Ct. 1056 (1988). There is some evidence to support the view that the preponderance of the evidence is not the standard for probable cause. Gerstein v. Pugh, 420 U.S. 103, 121, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975) ("probable cause determination . . . does not require the fine ...

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