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10/23/96 PEOPLE STATE ILLINOIS v. DEMOND PARKER

October 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
DEMOND PARKER, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RALPH REYNA, JUDGE PRESIDING.

Released for Publication December 10, 1996.

The Honorable Justice Gallagher delivered the opinion of the court. Cerda and Greiman, JJ., concur.

The opinion of the court was delivered by: Gallagher

The Honorable Justice GALLAGHER delivered the opinion of the court:

Defendant, Demond Parker, was charged with unlawful use of a weapon. After a hearing, the trial court granted defendant's motion to quash arrest and suppress evidence of the gun. The State appeals arguing that no search occurred when the gun was discovered. We affirm.

Chicago Police Officer Daren Washington is part of a unit which conducts random metal detector operations inside Chicago area high schools. The mission of the six police officers and one sergeant unit is to prevent students from entering schools with weapons.

On April 12, 1995, Officer Washington was inside Bogan High School where two metal detectors were set up. There were signs posted at the school which stated that any person on the premises was subject to a search. Around 7:20 a.m. defendant, a 16-year-old, entered the school. Defendant looked in the direction where the students were lined up to go through the metal detectors and turned around to leave the school. At that time, Officer Washington stopped the defendant and identified himself as a police officer. He then told the defendant he would have to go through the metal detector. To which defendant responded by raising his shirt and saying "someone put this gun on me." After defendant raised his shirt, Officer Washington could see the handle of a blue steel semiautomatic pistol. Officer Washington then retrieved the weapon and arrested the defendant.

After a hearing, the trial court granted defendant's motion to quash arrest and suppress evidence. The trial court found that the defendant could have turned around for any number of innocent reasons unrelated to the metal detectors.

On appeal, the State argues that there was no search because defendant did not go through the metal detector and was not patted down. The State argues that because defendant raised his shirt, the gun was in plain view, there was no search, and thus there could not have been an illegal search. Defendant argues that the stop was illegal. The stop led to the discovery of the gun. Thus, the discovery of the gun was fatally tainted by the unconstitutional stop.

"Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment." Dunaway v. New York, 442 U.S. 200, 219, 60 L. Ed. 2d 824, 840, 99 S. Ct. 2248, 2257 (1979). A person is seized within the meaning of the fourth amendment when, by a show of authority or use of physical force, his freedom of movement is restrained. United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). A seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." Terry v. Ohio, 392 U.S. 1, 16, 20 L. Ed. 2d 889, 903, 88 S. Ct. 1868, 1877 (1968); see also Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; People v. Long, 99 Ill. 2d 219, 229, 457 N.E.2d 1252, 75 Ill. Dec. 693 (1983).

If, however, the person who police officers are talking to remains free to disregard the questions and walk away, there is no intrusion upon that person's liberty or privacy such that the constitution would require some particularized and objective justification. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.

In this case, we conclude that defendant's detention constituted an illegal seizure. Defendant, a 16-year-old, was specifically told by a police officer that he had to walk through the metal detectors even though defendant was leaving the building. The only reason the officer had for stopping defendant was because defendant entered the building, looked in the general area of the metal detectors and turned around to leave. Nothing in the record suggests that defendant was free to walk away if he had wanted to. Indeed, the officer's testimony suggests that defendant would have been physically restrained if he had refused to go through the metal detector. The detention to which defendant was subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity. See Florida v. Royer, 460 U.S. 491, 502, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326-27 (1983).

The State argues that the officers were performing an administrative search supported by a legitimate government interest and thus, the seizure was constitutional. The Supreme Court has upheld suspicionless, administrative searches which were conducted as part of a general regulatory scheme to ensure public safety, not as a criminal investigation to secure evidence of crime. See Vernonia School District 47J v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995) (drug testing of student athletes); United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976) (automobile checkpoints looking for illegal immigrants and contraband); Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990) (checkpoints to snare drunk drivers).

Exceptions to the requirement of individualized suspicion can be appropriate "where the privacy interests implicated by a search are minimal and 'other safeguards' are available to assure that the individual's reasonable expectation of privacy is not 'subject to the discretion of the official in the field.'" New Jersey v. T.L.O., 469 ...


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