APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
June 11, 1997
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
JOHN BILLINGSLEA, DEFENDANT-APPELLANT.
Appeal from the Circuit Court of Cook County. The Honorable Patrick Morse, Judge Presiding.
Justice Leavitt delivered the opinion of the Court. Cousins, P.j., concurs. Cahill, J. dissents.
The opinion of the court was delivered by: Leavitt
Justice Leavitt delivered the opinion of the Court:
After a bench trial, the defendant, John Billingslea was found guilty of unlawful use of a weapon, failure to possess a firearm owner's identification card and failure to produce evidence of firearm registration. The trial judge sentenced him to one year of probation. The defendant contends that the trial judge erred in denying his motion to quash arrest and suppress evidence.
At the hearing on the defendant's motion, 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 his squad car. As the two officers approached 10659 South Champaign Street, Officer Campbell saw the defendant and two other men talking to the occupants of a parked car. The defendant was on the passenger side of the car and the two others were standing on the driver's side. At the time, Officer Campbell did not have a warrant for the defendant's arrest, nor did he witness "any transactions" occur between the defendant's group and the occupants of the car. Nonetheless, the officers stopped their squad car because this was a "high narcotics area" and because the defendant "had just left the car [and] possibly could have had narcotics." As the officers approached and stopped their car, the other vehicle drove away.
Officers Campbell and Merritt got out of their squad car, and the defendant and the other two men approached the two officers. Officer Merritt stated to these two, "Why don't you guys come over here." Simultaneously, as the defendant began walking from where he had been standing, Officer Campbell, who was standing by the squad car, asked the defendant to come towards him. The defendant was no more than 15 feet away when Officer Campbell called to him. Officer Campbell observed that the defendant was wearing a coat, which was open. Campbell "saw a bundle" at the defendant's waistband, and as the defendant approached, his hands were in his pockets. Officer Campbell told him to "keep [your] hands where I [can] see them."
Initially, all three men complied with the officers' requests, but after taking a couple of steps in Officer Campbell's direction, the defendant turned slightly and took an "evasive step" away from the officer. At this time he was five to six feet away from Officer Campbell. Campbell stated that at this time, he moved in front of the defendant in order to block his path. He did this to position himself to catch the defendant were he to attempt to flee.
As Officer Campbell moved in front of the defendant to counter his evasive step, he twice told the defendant to "come here." Instead, the defendant turned his back to the officer, removed an object from his waistband and threw it to the ground. The defendant also attempted to kick snow over the object he had tossed. Campbell did not see what the object was as the defendant discarded it, but when he retrieved it from the snow, he discovered that it was a .38 caliber handgun. During Officer Campbell's encounter with the defendant, Officer Merritt had been conducting a protective search frisk of the defendant's companions, during which she told them to "grab the car."
In denying the defendant's motion to suppress, the trial judge reasoned that Officer Campbell's conduct in calling the 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), "although the officer may have had every intention to do it, it didn't happen." However, according to the judge, when the defendant turned from the officer and threw the gun to the ground, he lost any right to privacy, as well as any standing to contest the seizure of the weapon, because he had abandoned it and it was in plain view on the ground.
Generally, we may not disturb a trial judge'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). However, when neither the facts nor credibility of the witnesses is in dispute 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). Here, neither facts nor credibility of witnesses is at issue, and therefore, we conduct de novo review and reverse the trial judge's ruling.
A law enforcement officer may approach any individual and question him without violating the Fourth Amendment's guarantee against unreasonable search and seizure. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). However, 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, 100 S. Ct. 1870 (1980). A defendant is considered "seized" pursuant to a show of authority if a reasonable person in the same circumstances would not feel free to decline the officer's request or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991).
However, an officer may lawfully seize a person for the purpose of a brief and limited investigation of possible criminal activity where there are specific articulable facts and rational inferences that lead the officer to a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); People v. Zamora, 203 Ill. App. 3d 102, 106-07, 560 N.E.2d 1053, 148 Ill. Dec. 456 (1990). These "Terry stops" may last no longer than is necessary to effectuate the purpose of the seizure. Royer, 460 U.S. at 500. The legislature has codified Terry in section 107-14 of the Code of Criminal Procedure. See 725 ILCS 5/107-14 (West 1994).
The Defendant does not contest the State's assertion that when Officer Campbell first called him over, he voluntarily walked towards the officer. Rather, the defendant contends that he was illegally seized thereafter because Officer Campbell had no specific articulable facts to support a Terry stop when the officer, while telling the defendant to "come here," blocked the defendant's path as he attempted to take an evasive step away from the officer--that is, when the defendant attempted to exercise his freedom to walk away, he was restricted and, therefore, seized in violation of his state and federal constitutional rights. U.S. Const. Amends. IV, XIV; Ill. Const. 1970 Art. 1, Sec 6.
The State also presents the issue in this case as a narrow one:
"The issue in the case at bar is whether there was a Terry stop by Officer Campbell when he approached defendant and repeatedly asked defendant to 'come here.'"
The State then concedes that "if this was a Terry stop, and, therefore, a seizure of defendant's person before defendant threw down the weapon, this would have been improper and the weapon should have been suppressed by the trial court."
We agree with the parties that we must determine whether Officer Campbell's actions in blocking the defendant's path and telling the defendant to "come here" twice constituted a seizure of the defendant's person. If it was, we must also determine whether the officer's testimony contains an expression of the requisite articulable facts and reasonable inferences to have supported a lawful seizure under Terry.
The determinative testimony by Officer Campbell, elicited on cross-examination, was as follows:
Q: When you said in your arrest report, when you asked the defendant to come towards you, he refused, is that correct?
Q: Explain to the court what you mean - what period of time are you referring to that he refused to come towards you?
A: Those few seconds I said 'Come over here' at that time Mr. Billingslea originally took an evasive step. I walked to block his path, and said, 'come here'. I repeated it again and at that time, he turned around and turned his back and threw the object.
Based on this testimony, as well as the other surrounding circumstances, we disagree with the judge's ruling that the defendant was not seized when Officer Campbell summoned the defendant and then blocked his path.
The State relies on People v. Jackson 149 Ill. App. 3d 156, 500 N.E.2d 537, 102 Ill. Dec. 644 (1986), and People v. Tilden, 70 Ill. App. 3d 859, 388 N.E.2d 1046, 27 Ill. Dec. 83 (1979), to support its contention that there was no seizure of the defendant before he tossed the gun. These cases are far removed factually from the case before us.
In Jackson, police were searching for an individual, not the defendant Jackson, pursuant to a tip that he was in possession of a large amount of cocaine. When the officers arrived at the area where the individual was supposed to be, the officers saw Jackson, whom one of the officers knew, having arrested him for a prior drug offense. Hoping to obtain information about the individual for whom he was looking, the officer stated to Jackson, "I would like to talk to you." In response, the defendant voluntarily followed the officer to his squad car. As they walked, the officer saw the defendant take from his pocket and put into his mouth, a clear plastic bag containing white powder. The officer forced Jackson to spit out the bag. Jackson moved to suppress the bag and its contents as evidence.
In reversing the trial court's finding that Jackson had been unlawfully seized, the court recognized that the two "essential elements" in determining whether one is "arrested" are the intent of the officer and the understanding of the arrestee. Jackson, 149 Ill. App. 3d at 158. The court stressed with regard to the second element, that the standard is not what the defendant thought nor is it what a reasonable person would think, but rather what a reasonable man innocent of any crime would have thought had he been in the defendant's position. Jackson, 149 Ill. App. 3d at 158. In applying this standard, a court "must also consider the surrounding circumstances of the incident in question." Jackson, 149 Ill. App. 3d at 158, citing People v. Wipfler, 68 Ill. 2d 158, 167-68, 368 N.E.2d 870, 11 Ill. Dec. 262 (1977).
The Jackson court then held that a person is not seized when he voluntarily follows a police officer to talk with him, absent any indication of intent by the officer to arrest or restrain him. Jackson, 149 Ill. App. 3d at 158. The court also concluded that a reasonable man innocent of a crime would not, under the circumstances involved, have thought himself to be under arrest. Jackson, 149 Ill. App. 3d at 158.
In Tilden, two uniformed policemen were responding to a report about a suspicious person. They saw a man, the defendant, walking towards a car parked in the middle of an alley. The man, apparently having observed the officers, turned and walked away from them. One of the officers asked that he return and produce identification. As the defendant searched his pockets for a driver's license, one of the officers saw a gun in the defendant's waistband, and the officers arrested him for a weapons violation. In affirming the trial court's denial of the defendant's motion to suppress, the court stressed that under Terry, "in order to constitute [a] restraint on the freedom to walk away, which is the essence of a seizure, there must be some element of force or threat of force." Tilden, 70 Ill. App. 3d at 862. The court rejected the defendant's contention that a police officer's uniform, in and of itself, constitutes a threat of force. Under the facts, the defendant's freedom to walk away was not overcome by any force or threat of force. Tilden, 70 Ill. App. 3d at 863. See also People v. Kennedy, 66 Ill. App. 3d 267, 383 N.E.2d 713, 22 Ill. Dec. 905 (1978) (routine questioning does not constitute force or threat of force); People v. Jordan, 43 Ill. App. 3d 660, 357 N.E.2d 159, 2 Ill. Dec. 182 (1976) (same).
Here, in contrast to Jackson and Tilden, Officer Campbell did not merely ask the defendant for identification or to engage in conversation. Rather, in an encounter that lasted mere seconds, the officer asked the defendant to approach him. The two men were up to 15 feet apart. As the defendant approached, Officer Campbell noticed a bundle in the defendant's waistband and told the defendant to approach him with his hands outside of his pockets. At this point, still five to six feet away from the officer, the defendant decided to exercise his right to walk away. In response the officer blocked the defendant's path ordering him to "come here, come here," testifying that he did so to stop the defendant were he to run. This occurred as the defendant's companions were actually being restrained. Given these circumstances, we must conclude that the officers intended to seize the three individuals and used force to effect those seizures.
Furthermore, we cannot regard Officer Campbell's blocking of the defendant's path while exhorting him to "come here" after the officer had already instructed him to approach with his hands out of his pockets, as simply a request for a voluntary encounter. We believe that a reasonable innocent person, faced with the same circumstances, would not perceive himself free to ignore the officer's orders. Thus, contrary to the trial judge, we hold that the defendant was seized within the meaning of Terry once Officer Campbell blocked his egress and ordered him to come to him. Having determined that a seizure occurred, we must yet determine whether the seizure was lawful.
At the time the defendant became seized Officer Campbell did not know that he was carrying a gun. Officer Campbell did not see the defendant commit a crime; he did not see any transactions taking place; and he saw no contraband. Rather, the officer stated that he and his partner were suspicious of the defendant and his companions because they were standing by an occupied car in a "high narcotics area" and "possibly***could have had narcotics." These were the sole articulable facts offered to support an inference that an offense was taking place, had taken place or was about to take place. This was simply insufficient, as a matter of law. A police officer may not rely on "mere hunch and suspicion" to justify an intrusion into a citizen's right to move freely in our society. People v. Fa-Rd Moore, 286 Ill. App. 3d 649, 676 N.E.2d 700, 221 Ill. Dec. 897 (Ill. App. 1997); People v. Hunt, 188 Ill. App. 3d 359, 362, 544 N.E.2d 118, 135 Ill. Dec. 761 (1989). We hold that the stop was improper, and the trial judge should have granted the defendant's motion to suppress.
Reversed and Remanded.
Cousins, P.J., concurs.
Cahill, J. dissents.
The Honorable Justice CAHILL dissents:
I respectfully dissent. I believe the trial court correctly found that defendant was not seized before he dropped the gun and that defendant abandoned the gun when he threw it to the ground.
An officer's show of authority, such as Officer Campbell's actions here, may be sufficient to show that a defendant was seized. See Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382. But, we have held that a defendant is not seized when he ignores such a show of authority. See People v. Ramirez, 244 Ill. App. 3d 136, 145, 613 N.E.2d 1116, 184 Ill. Dec. 524 (1993), citing California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991). In Ramirez, the defendant fled from officers who had ordered him to halt. As he fled, he dropped a brown paper bag that contained cocaine. We held that the defendant was not seized within the meaning of the fourth amendment because there had been neither the application of physical force with lawful authority nor submission to the assertion of authority. Ramirez, 244 Ill. App. 3d at 145. We found that the recovered object had been abandoned by the defendant, and held that defendant's motive to exclude the evidence was properly denied.
Here, while Campbell asserted authority when he blocked defendant, ordered him to "come here," and ordered him to keep his hands where he could see them, defendant chose not to submit. Instead, he turned away, reached for an object in his waistband, and threw it to the ground. At that time, defendant was not detained by the application of physical force and did not submit to the assertion of authority. Campbell's recovery of the gun did not result from a search or seizure of defendant.
Even if Campbell's actions did amount to a seizure, I disagree with the majority's conclusion that Officer Campbell acted unlawfully when he attempted to block defendant. The majority concluded that Campbell did not have a reasonable suspicion of criminal activity to justify detaining defendant. This conclusion was based on some of the facts Campbell knew before he and Officer Merritt originally approached defendant and his companions. At that time, Campbell knew that they were near an occupied car in a "high narcotics area." The majority states that these are the "sole articulable facts" supporting an inference that a crime was taking place, had taken place, or was about to take place.
I agree that if this were all Campbell knew when he stopped defendant, his "hunch" would not have justified his intrusion. See People v. Hunt, 188 Ill. App. 3d at 362, 544 N.E.2d 118, 135 Ill. Dec. 761 (knowledge of past criminal activity in an area alone did not justify stop). But Campbell made several other relevant observations before attempting to stop defendant.
Campbell testified that as defendant began to walk toward the officers, he saw that defendant was wearing an open coat and that defendant had "a bundle" or "bulge" at his waistband. Defendant also had his hands in his pockets. Campbell told defendant to keep his hands where he could see them. Defendant began to walk toward the officers, but then took an evasive step away. These articulable facts, in addition to Campbell's knowledge that he was in a high crime area, gave a reasonable police officer reason to block defendant.
An investigatory stop is proper when the facts available to the officer would warrant a person of reasonable caution to believe that the action taken was appropriate. People v. Scott, 148 Ill. 2d 479, 503, 594 N.E.2d 217, 171 Ill. Dec. 365 (1992); People v. Bujdud, 177 Ill. App. 3d 396, 401, 532 N.E.2d 370, 126 Ill. Dec. 685 (1988). I believe that a reasonable officer in Campbell's position would have been alerted to the possibility that defendant possessed a weapon or other contraband and that the better part of wisdom compelled Campbell's minimal intrusion of blocking defendant's path and detaining him long enough to investigate.
I would affirm the trial court's denial of defendant's motion to suppress.
I respectfully dissent.
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