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June 11, 1997


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, ...

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