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11/20/97 PEOPLE STATE ILLINOIS v. MELVIN FLOWERS

November 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
MELVIN FLOWERS, APPELLANT.



Appeal from the Appellate Court, Fourth District, Vermilion County. CASE NUMBERS: AC4-95-0893, TR95CF322. TRIAL JUDGE: Hon. Thomas J. Fahey.

The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

Defendant, Melvin Flowers, was charged in the circuit court of Vermilion County with one count of possession of a controlled substance. 720 ILCS 570/402(c) (West 1994). The circuit court granted defendant's motion to suppress evidence that was seized from him during a police "stop and frisk." The circuit court ruled that the frisk was illegal because the officer did not have a reasonable belief that defendant was armed and dangerous. The State appealed to the appellate court and the appellate court reversed the suppression order. No. 4-95-0893 (unpublished order under Supreme Court Rule 23). We granted defendant's petition for leave to appeal (155 Ill. 2d R. 315), and we now reverse the appellate court.

FACTS

The only witness to testify at the suppression hearing was Officer Stephen Wilson of the Danville police department. Officer Wilson testified that the police department had received a telephone call at 1:22 a.m. on July 12, 1995, from an anonymous caller who reported seeing a black male wearing a white T-shirt and riding a bicycle go to the rear of a house for sale on the 500 block of Woodbury. The caller reported hearing what sounded like glass breaking at that time. Officer Wilson, along with two fellow officers, responded to the report. Officer Wilson testified that there were two houses that had "for sale" signs on the 500 block of Woodbury. They checked both houses for signs of damage or illegal entry and found them to be secure. They saw no broken windows in either house.

At 1:39 a.m., Officer Wilson was still on the 500 block of Woodbury when he saw defendant, a black male, riding a bicycle. Officer Wilson activated the police lights on his car and effectuated a stop of defendant because defendant matched the description given by the earlier caller. Shortly after he stopped defendant, Officer Wilson was joined by a fellow officer. Officer Wilson asked defendant if he had been in the area earlier and defendant responded that he had been. In response to further questions, defendant stated that he had been at his girlfriend's house and was now returning to his home. Defendant gave the officer his address and that of his girlfriend. Defendant had a bag on the front of his bicycle. Officer Wilson asked defendant what was in the bag and defendant told him it contained clothing. Defendant gave the officer consent to search the bag. The search revealed that the bag contained clothing. Officer Wilson then "patted [defendant] down for weapons." Officer Wilson asked defendant "what he had on his person." In response, defendant took some items, including nail files and a piece of tissue paper, out of his pockets and showed them to the officer. Defendant was straddling his bicycle during the frisk.

Officer Wilson testified that he felt a "tube-like item" in defendant's pocket, which he believed to be a crack pipe. He asked defendant if it was a crack pipe and defendant responded that it was. Officer Wilson then continued the frisk which revealed a plastic bag containing a small amount of a substance the officer believed to be cocaine.

Officer Wilson testified that he frisked defendant "for my safety as well as his." However, when asked whether he had any particular reason to believe that defendant had a weapon, Officer Wilson responded: "No. I do that as a common thing in my job, to pat people down for my safety as well as theirs."

At the conclusion of the suppression hearing, the trial court ruled that the stop of defendant was valid under section 107-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/107-14 (West 1994)) and Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The trial court found, however, that the frisk was invalid under section 108-1.01 of the Code and Terry. The trial court therefore granted defendant's motion to suppress the evidence obtained as a result of the frisk. The State filed a certificate of impairment and appealed to the appellate court.

The appellate court reversed the suppression order, finding that the frisk was valid. No. 4-95-0893 (unpublished order under Supreme Court Rule 23). The appellate court noted that Officer Wilson was investigating a "possible burglary" and that defendant "fit the description of the suspect." The court also noted that the officer had testified that he routinely frisked suspects for his safety and the safety of the suspects. The court then reasoned that, "in this society," Officer Wilson's "caution" was warranted.

ANALYSIS

The sole issue presented in this appeal is the validity of Officer Wilson's frisk of defendant. The trial court determined that the frisk was invalid and that the evidence obtained as a result must be suppressed. We find that the trial court's ruling was not manifestly erroneous and must therefore be upheld.

The fourth amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. Reasonableness under the fourth amendment generally requires a warrant supported by probable cause. Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514 (1967); People v. Bailey, 159 Ill. 2d 498, 503, 203 Ill. Dec. 459, 639 N.E.2d 1278 (1994); People v. Galvin, 127 Ill. 2d 153, 169, 129 Ill. Dec. 72, 535 N.E.2d 837 (1989). A limited exception to the traditional requirement was recognized by the Supreme Court in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, the Court held that a police officer, under appropriate circumstances, could briefly detain a person for investigatory purposes and, if necessary for safety, conduct a limited protective search for weapons. People v. Scott, 148 Ill. 2d 479, 502, 171 Ill. Dec. 365, 594 N.E.2d 217 (1992); People v. Smithers, 83 Ill. 2d 430, 434, 47 Ill. Dec. 322, 415 N.E.2d 327 (1980). Under the Terry exception, a police officer may briefly stop a person for temporary questioning if the officer reasonably believes that the person has committed, or is about to commit, a crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d ...


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