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May 2, 1997


Appeal from the Circuit Court of Cook County. Honorable Vincent Gaughan, Judge Presiding.

Rehearing Denied July 22, 1997. Released for Publication August 5, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Greiman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Defendant, Ronnie Ross, was charged with unlawful use of a weapon after officers, following a routine traffic stop, discovered a gun in the back seat of his automobile. Defendant's motion to quash arrest and suppress evidence, and motion to suppress physical evidence, were denied during the course of a consolidated bench trial. The sole issue presented is whether a police officer may ask a stopped motorist whether he has a gun in his vehicle after the motorist presents the officer with a firearm identification card. Because defendant is willing to concede the State's version of the relevant facts on appeal, we apply de novo review. People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310, 214 Ill. Dec. 456 (1996); People v. Anaya, 279 Ill. App. 3d 940, 944-45, 665 N.E.2d 525, 216 Ill. Dec. 465 (1996).

Officer Robert McHale and his partner were patrolling near 119th and Halsted in Chicago at approximately 6 p.m. on August 9, 1995. They were in uniform and in a marked squad car. Officer McHale testified he observed the defendant's vehicle proceed through a red light at the intersection. The officers activated their police lights and curbed the defendant at 802 West 118th Street. They stopped within 15 feet of the back of defendant's car.

McHale testified that, as he approached from the passenger side, defendant hurriedly came out of the vehicle and met the officers near the back of his car. McHale's partner asked if defendant had a driver's license and proof of insurance. Defendant could produce neither, but did offer to the police a recent traffic ticket. When McHale's partner asked defendant for further identification, defendant produced a firearm owner identification ("F.O.I.D.") card with his photograph on it.

McHale testified that, after seeing defendant's F.O.I.D. card, his partner asked defendant if there was a gun in the car. Defendant said yes. After asking defendant's passenger to step out of the vehicle, McHale searched the car and found a leatherlike pouch containing an unloaded .25 caliber Lorcin pistol in the back seat. A clip containing four bullets was also in the pouch.

McHale brought the gun to defendant, who confirmed he owned it. McHale then placed defendant under arrest, impounded his vehicle and ticketed defendant for failing to stop at a red light, failing to have proof of insurance, failing to register his vehicle, and disobedience to the traffic code.

The State argues that the gun found by officer McHale, as well as defendant's statements about it, were properly admitted into evidence even though McHale did not have a warrant to search defendant's vehicle. Defendant does not contest the State's claim that McHale had probable cause to search the car after defendant told him about the gun, *fn1 but argues his statement to McHale was obtained in violation of his fourth amendment rights. According to defendant, the gun in the vehicle was wholly unrelated to the traffic offense for which he had been stopped, thus warranting suppression of all of the fruits of the unlawful questioning.

In People v. Murray, 137 Ill. 2d 382, 387-88, 560 N.E.2d 309, 148 Ill. Dec. 7 (1990), the Illinois Supreme court recognized three theoretical tiers of lawful police-citizen encounters. The first tier involves the arrest of an individual supported by probable cause to arrest, without which the fourth amendment prohibition against unreasonable seizures is violated. Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959). The next tier involves the so-called "Terry stop," a brief seizure that must be supported by a reasonable suspicion of criminal activity in order to be within the bounds of the fourth amendment. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The last tier does not involve police officers in their role as crime fighters, but rather, as community caretakers. This last tier involves no coercion or detention by the police when they approach a citizen to gather information, such as when the police investigate vehicle accidents in which there is no claim of criminal liability. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).

Situations involving traffic stops are most closely associated with the middle, "Terry stop," police function. Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984); People v. Penny, 188 Ill. App. 3d 499, 544 N.E.2d 1015, 136 Ill. Dec. 240 (1989). This is because the citizen has already been observed violating the law and is not free to disregard the officers directions to stop. On the other hand, the contact between police officer and offender does not rise to the level of a full-blown arrest, in which nearly all of the individual's free will is overborne by the State.

As we have noted, simply because a Terry stop falls short of an arrest does not mean that a Terry stop fails to implicate a citizen's fourth amendment rights. On review of the propriety of a Terry stop, we make a two-prong inquiry. First, we consider whether the officer's actions in stopping the defendant were justified at their inception. Second, we consider whether the officer's subsequent actions were reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 20.

In this case, the defendant concedes that the initial stop of his vehicle was proper. He admits running a red light and has no quarrel with the officers' decision to pull him over, request to see his license and proof of insurance, and their issuing to him a ticket. Defendant argues, however, that the officers' subsequent actions in questioning him about whether he had a gun in the car was not reasonably related to the circumstances which justified the stop. ...

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