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June 11, 1997


Appeal from the Circuit Court of Cook County. No. 94 MC1 193892. Honorable James Linn, Judge Presiding.

As Modified on Denial of Rehearing September 30, 1997. As Corrected October 2, 1997. Released for Publication November 26, 1997.

The Honorable Justice Cahill delivered the opinion of the court. Cousins, P.j., concurs. Justice Leavitt, dissenting.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

John Billingslea was convicted after a bench trial of unlawful use of a weapon, failure to possess a firearm owner's identification card and failure to produce evidence of firearm registration. He was sentenced to one year of probation. He argues on appeal that the trial court erred in denying his motion to quash arrest and suppress evidence. We affirm.

At a hearing on defendant's motion to quash arrest and suppress evidence, Chicago police officer Alvin Campbell testified that on January 8, 1994, at 11:40 p.m., he and his partner, Officer Merritt, were on routine patrol in a marked police car. As they approached 10659 South Champaign Street, Campbell saw defendant and two other men talking to the occupants of a parked car. Defendant was on the passenger side of the car and the two others were standing on the driver's side. The officers stopped their car because they were in a "high narcotics area" and defendant "had just left the car [and] possibly *** could have had narcotics." Campbell did not have a warrant for defendant's arrest, nor did he witness transactions between defendant's group and the occupants of the car.

Campbell testified that as he and Merritt got out of their squad car, the other vehicle drove away. Defendant and the other two men then approached the officers. Merritt asked defendant's companions, "Why don't you guys come over here[?]" Simultaneously, Campbell asked defendant to come toward him. Defendant was no more than 15 feet away when Campbell called to him. As defendant approached, Campbell observed that defendant was wearing a coat that was open and his hands were in his pockets. Campbell "saw a bundle" in defendant's waistband. Campbell told defendant: "keep [your] hands where I [can] see them."

After taking a couple of steps in Campbell's direction, defendant turned slightly and took an "evasive step" away from Campbell. Defendant was then five to six feet away from Campbell. Campbell moved in front of defendant to block his path. Campbell explained that he did this to position himself so that he could catch defendant if he attempted to flee.

As Campbell moved in front of defendant to counter his evasive step, he twice told defendant to "come here." Instead, defendant turned his back to the officer, removed an object from his waistband and threw it to the ground. Defendant then attempted to kick snow, over the object he had tossed. When Campbell recovered the object from the snow, he saw that it was a .38-caliber handgun. While Campbell dealt with defendant, Merritt conducted a search of defendant's companions, during which she told them to "grab the car."

The trial court denied defendant's motion to quash arrest and suppress evidence, reasoning that Campbell's conduct in calling defendant over to his vehicle did not amount to a "stop" under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Further, the trial judge reasoned that when defendant turned from the officer and threw the gun to the ground, he lost his right to privacy, as well as standing to contest the seizure of the weapon, because he had abandoned the weapon and it was in plain view on the ground. The trial judge did not address whether a seizure occurred when Campbell moved to block defendant.

Generally, we will not disturb a trial court's ruling on a motion to suppress unless it is manifestly erroneous. People v. James, 163 Ill. 2d 302, 645 N.E.2d 195, 206 Ill. Dec. 190 (1994). But where, as here, neither the facts nor credibility of witnesses is disputed, we may review the ruling de novo. People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310, 214 Ill. Dec. 456 (1996).

A law enforcement officer does not violate the fourth amendment's guarantee against unreasonable search and seizure by approaching a person and questioning him. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983). But when a person's freedom of movement is restrained by physical force or a show of authority, he is seized within the meaning of the fourth amendment. United States v. Mendenhall, 446 U.S. 544, 553-54, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). A show of authority amounts to a seizure when a reasonable person in the same circumstances would not feel free to "'go about his business.'" Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991), quoting California v. Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698, 111 S. Ct. 1547, 1552 (1991).

Defendant does not dispute that he voluntarily walked toward Campbell. At that point, the encounter was consensual and he was not seized. He argues that the confrontation escalated to a seizure when Campbell, without sufficient articulable facts to justify a Terry stop, told defendant to "come here" as he blocked defendant's path in response to defendant's evasive step.

The State argues that defendant was not seized until after he threw the weapon down and, at that point, defendant had abandoned the gun. The State argues that nothing Campbell did before defendant threw the gun down "could be construed as a show or threat of ...

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