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January 24, 1994


Appeal from the Circuit Court of Lake County. No. 92-CF-0110. Honorable John R. Goshgarian, Judge, Presiding.

Released for Publication March 3, 1994.

Bowman, Inglis, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Archie Cole, appeals from his conviction of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))). Prior to trial defendant filed a motion to suppress evidence. The motion was denied, and defendant proceeded with a bench trial and stipulated to the evidence, specifically preserving the suppression issue for review. The trial court found the defendant guilty and sentenced him to six years in prison. Defendant asserts that the lower court erred in denying his motion to suppress.

At the suppression hearing North Chicago police detectives Richard Theis and Walter Holderbaum testified for the State. During a four-day period in January 1992, the North Chicago detective bureau conducted a four-day special operation in the 1200 block of Broadway. According to Theis, the location was a high-crime area, and complaints of drug trafficking prompted the operation. On the night of January 13, 1992, both detectives participated in the operation and both wore clothing and gear which clearly identified them as police officers. Theis carried a flashlight.

There were two-story apartment buildings at 1227 and 1301 Broadway, with a courtyard in between. Around 10:30 p.m., while on foot patrol in the courtyard area, the two detectives noticed defendant park a car in the alley behind 1227 Broadway. Theis approached the vehicle on the passenger side. Holderbaum followed close behind. As the officers approached, the passenger side window was lowered. Theis asked the occupant his name. The defendant, who was alone in the car, answered, "Derrick Cole." When Theis asked what he was doing there, defendant replied that he lived at 1227 Broadway, apartment A. Theis informed defendant that he knew the Millers lived in apartment A. Defendant said they were his cousins. Theis believed that, at this time, Holderbaum said something to the effect that defendant, then, did not live in apartment A, and defendant replied, "No, I don't." Defendant had testified that Michelle Sanders, who lived in apartment A, was his cousin and that he himself lived in apartment B with Melvin Sanders, Mark Miller, Ronnie Neighbors, and Rickie Miller. According to defendant, Melvin Sanders and Mark Miller were also his cousins. Officer Theis stated that to his knowledge the Sanders and the Millers were related, and he went to both apartment A and apartment B quite often for investigations and complaints.

Following the exchange about where defendant lived, Theis asked for identification, specifically requesting a driver's license, since defendant "just drove up in this car." Defendant slid across the front seat and got out of the car by the passenger door. He then bent over the seat and, after looking through a black pouch, produced a State identification card which had been issued on March 22, 1990. The card bore the name Archie D. Cole and an address of 620 Helmholz. When Theis commented that he had said his name was Derrick, defendant responded, "It is Archie Derrick Cole." Theis and Holderbaum both then asked if he had a driver's license, whereupon defendant revealed that his license had been suspended and he had to get it reinstated.

Theis took the defendant's identification card and ran a computer check. Both detectives testified that defendant was walking around freely during this time. He played with his dog, which was chained to a nearby tree, eventually letting him loose and saying that he was going to take the dog into the apartment. By this time, however, Theis had learned that defendant's license was suspended. The officers told defendant he was going to have to chain the dog back up because he was under arrest for driving with a suspended license. Just prior to doing a pat-down search, Theis asked defendant if he had anything Theis should know about. Defendant indicated he had a gun in his right front pocket. Theis found the gun and immediately handcuffed defendant and took him to a police van. A search of defendant's black pouch revealed the presence of cocaine. The detectives stated that they never threatened the defendant, never directed him to go or remain anywhere or controlled his movement prior to arrest, never intentionally touched him, and never confronted him with weapons.

Defendant's testimony conflicted in some regards with that of Theis and Holderbaum. In particular, defendant testified that he was already out of the car, had unhooked his dog, and was walking toward the building when the detectives approached and told him to, "Come here." He also said that he told the police he lived in apartment B, not apartment A, as Theis and Holderbaum testified. On cross-examination defendant admitted that, prior to his arrest, Theis and Holderbaum never displayed their weapons, never physically touched him, never told him to get into the police vehicle, never threatened him, and never put him in a prone position.

Maintaining that he was illegally seized by Theis and Holderbaum in violation of his rights under the fourth amendment to the Federal constitution as well as under the constitution of Illinois (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6), defendant contends that the evidence secured as a result of that seizure, i.e., the gun and the cocaine, should have been suppressed. Specifically, defendant claims that an improper stop by police occurred when Theis and Holderbaum required him to produce a driver's license, while, at the same time, they retained his State identification card. The State responds that there was no stop since defendant's contact with the police was consensual.

The trial court found that the police officers had not stopped or seized the defendant prior to his arrest. Rather, they had merely asked some questions and engaged in conversation with him and obtained incriminating responses which resulted in the defendant's arrest and search. The ruling of the trial court on a motion to suppress will not be disturbed unless it is manifestly erroneous. ( People v. Galvin (1989), 127 Ill. 2d 153, 162-63, 129 Ill. Dec. 72, 535 N.E.2d 837.) Too, it is the function of the trial court on such a motion to determine the credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. Galvin, 127 Ill. 2d at 163.

We must determine when, if at all, a seizure occurred since the fourth amendment is implicated only at the point police conduct constitutes a seizure. (See Florida v. Royer (1983), 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324; United States v. Mendenhall (1980), 446 U.S. 544, 552-53, 64 L. Ed. 2d 497, 508-09, 100 S. Ct. 1870, 1876; People v. Graves (1990), 196 Ill. App. 3d 273, 277, 143 Ill. Dec. 103, 553 N.E.2d 810; People v. Long (1983), 99 Ill. 2d 219, 229, 457 N.E.2d 1252.) The fourth amendment is not involved where the police merely approach an individual in a public place and ask him if he is willing to answer questions or put questions to him if he is willing to listen. ( Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) Even when officers have no basis for suspecting an individual, they may generally ask that individual questions, ask to examine identification, and request consent to search his or her luggage as long as they do not communicate a message that compliance with their requests is required. (Florida v. Bostick (1991), 501 U.S. , , 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386, citing Immigration & Naturalization Services v. Delgado (1984), 466 U.S. 210, 216, 80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1762, Florida v. Rodriguez (1984), 469 U.S. 1, 5-6, 83 L. Ed. 2d 165, 170-71, 105 S. Ct. 308, 310-11, Royer, 460 U.S. at 501, 75 L. Ed. 2d at 238-39, 103 S. Ct. at 1326; Mendenhall, 446 U.S. at 557-58, 64 L. Ed. 2d at 511-12, 100 S. Ct. at 1878-79.) So long as a reasonable person would feel free to disregard the questions and go about his business, the encounter is consensual, and such an encounter will not trigger fourth amendment scrutiny unless it loses its consensual nature. Bostick, 501 U.S. at , 115 L. Ed. 2d at 398, 111 S. Ct. at 2386.

A person is seized within the meaning of the fourth amendment only when, in view of all the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave. ( Royer, 460 U.S. at 501-02, 75 L. Ed. 2d at 239, 103 S. Ct. at 1326; Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.) Examples of circumstances which might indicate a seizure would be the threatening presence of several police officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. ( Mendenhall, 446 U.S. at 554, 64 L. Ed. at 509, 100 S. Ct. at 1877.) As can be seen, it is a reasonable person test which we must apply to the facts of this case. The "reasonable ...

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