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People v. Wardlow

September 24, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V.SAM WARDLOW, APPELLANT.


The opinion of the court was delivered by: Justice Harrison

Agenda 7-March 1998.

Defendant, Sam Wardlow, was convicted of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1994)) following a stipulated bench trial in Cook County and was sentenced to a term of two years' imprisonment. On appeal, the appellate court reversed defendant's conviction, finding that defendant's motion to suppress evidence should have been granted because the revolver seized from him was discovered as a result of an improper investigatory stop. 287 Ill. App. 3d 367. We allowed the State's petition for leave to appeal. 166 Ill. 2d R. 315(a); 145 Ill. 2d R. 604(a)(2).

At the hearing on defendant's motion to suppress, Officer Timothy Nolan testified that on September 9, 1995, he and his partner, Officer Harvey, were assigned to the special operations section of the Chicago police department. On that date, Nolan and Harvey were among eight officers in four cars travelling eastbound on West Van Buren Street with the purpose of investigating narcotics sales in that area. Nolan stated that he was working in uniform, but did not recall whether the police car he drove, the last in the "caravan," was marked or unmarked.

Nolan testified that as he was driving, he observed defendant standing in front of 4035 West Van Buren. Defendant, who did not appear to be violating any laws, looked in the officers' direction and then fled. Nolan turned his vehicle southbound toward Congress Avenue, continuing to observe defendant, who ran southbound through a gangway and then through an alley. Nolan stated that defendant, who was carrying a white opaque bag under his arm, was cornered in the vicinity of 4036 West Congress when he "ran right towards us."

Nolan exited his car and stopped defendant. Without announcing his office or asking any questions, he conducted a protective pat-down search of defendant. Nolan testified that he could not see inside the bag defendant was carrying so he "squeezed" the bag and felt a very heavy, hard object "that had a similar shape to a revolver or a gun." Believing the object to be a weapon, Nolan opened the bag and found a .38-caliber handgun containing five live rounds of ammunition. Nolan then placed defendant under arrest. *fn1

Responding to the State's question as to why he "went to that location on that date and time," Nolan answered that it was "one of the areas in the 11th District that's high narcotics traffic." Nolan further testified that, based upon his experience in investigating areas in which narcotics were sold, it was common for there to be weapons "in the near vicinity" and he considered that fact as he approached "that specific scene." After hearing arguments by the parties, the trial court denied defendant's motion to suppress.

Generally, a trial court's ruling on a motion to suppress evidence is subject to reversal only if manifestly erroneous. People v. Dilworth, 169 Ill. 2d 195, 201 (1996). This clearly erroneous or manifestly erroneous test is based on the understanding that suppression motions usually raise mixed questions of law and fact. See People v. Frazier, 248 Ill. App. 3d 6, 12 (1993). However, where, as here, neither the facts nor the credibility of the witnesses is contested, the determination of whether there is reasonable suspicion warranting an investigatory stop is a legal question which a reviewing court may consider de novo. See In re D.G., 144 Ill. 2d 404, 408-09 (1991); People v. Foskey, 136 Ill. 2d 66, 76 (1990); see also People v. Besser, 273 Ill. App. 3d 164, 167 (1995).

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. This provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614, 95 S. Ct. 2574, 2578 (1975); People v. Smithers, 83 Ill. 2d 430, 433-34 (1980). In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the United States Supreme Court held that the public's interest in effective law enforcement makes it reasonable to detain and question individuals under certain circumstances in which probable cause to arrest is lacking. However, in order to protect "the individual's right to personal security free from arbitrary interference by law officers" (Brignoni-Ponce, 422 U.S. at 878, 45 L. Ed. 2d at 615, 95 S. Ct. at 2579), the Terry Court held that such limited investigatory stops are permissible only upon a reasonable suspicion based upon specific and articulable facts that the person has committed, or is about to commit, a crime. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; Smithers, 83 Ill. 2d at 434.

This Terry standard has been codified in our Code of Criminal Procedure of 1963. People v. Flowers, 179 Ill. 2d 257, 262 (1997); People v. Long, 99 Ill. 2d 219, 228 (1983). Section 107-14 of the Code provides, in pertinent part: "A peace officer *** may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense ***." 725 ILCS 5/107-14 (West 1994). The same standard is applied in determining the propriety of an investigatory stop under article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §6). See People v. Tisler, 103 Ill. 2d 226, 242-43 (1984) (the protection against unreasonable searches and seizures under the Illinois Constitution is measured by the same standards as are used in defining the protections contained in the fourth amendment to the United States Constitution). Turning to the case before us, defendant contended on direct appeal that the trial court erred in denying his motion to suppress because his presence in a high-crime area and flight from police were insufficient to justify his investigatory stop. The appellate court agreed, but found the record "simply too vague to support the inference that defendant was in a location with a high incidence of narcotics trafficking" and limited its holding accordingly. 287 Ill. App. 3d at 370-71. However, we believe Officer Nolan's uncontradicted and undisputed testimony, which was accepted by the trial court, was sufficient to establish that the incident occurred in a high-crime area. See Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996) (as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal, but reviewing court should take care both to review findings of fact only for clear error and to give due weight to inferences drawn from those facts by Judges and local law enforcement officers). Thus, the issue presented by this appeal is whether an individual's flight upon the approach of a police vehicle patrolling a high-crime area is sufficient to justify an investigative stop of the person. Defendant contends that such flight alone is insufficient to create a reasonable suspicion of involvement in criminal conduct. We agree.

A majority of jurisdictions addressing this issue have held that flight alone is insufficient to justify a Terry stop. See, e.g., State v. Tucker, 136 N.J. 158, 642 A.2d 401 (1994); State v. Hicks, 241 Neb. 357, 488 N.W.2d 359 (1992); People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451 (1985); People v. Aldridge, 35 Cal. 3d 473, 674 P.2d 240, 198 Cal. Rptr. 538 (1984); People v. Thomas, 660 P.2d 1272 (Colo. 1983); Watkins v. State, 288 Md. 597, 420 A.2d 270 (1980). "Instead, courts require proof of some independently suspicious circumstance to corroborate the inference of a guilty conscience associated with flight at the sight of the police. [Citations.]" Hicks, 241 Neb. at 362-63, 488 N.W.2d at 363; see also Tucker, 136 N.J. at 169, 642 A.2d at 407 (for departure to take on the legal significance of flight, there must be some circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt).

In Hicks, the Nebraska Supreme Court examined a number of these "location plus evasion" cases and, in a well-reasoned opinion, concluded:

"[A]llowing flight alone to justify an investigative stop would undercut the very values Terry sought to safeguard. Terry is based in part upon the proposition that the right to freedom from arbitrary governmental intrusion is as valuable on the street as it is in the home. Thus, while a police officer does not violate the Fourth Amendment by approaching an individual in a public place and asking if the person will answer some questions, neither is the person under any obligation to answer. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). The person may decline to listen to the questions at all and simply go on his or her way. Id. If the option to 'move on' is chosen, the person 'may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.' 460 U.S. at 498.

*** Flight upon approach of a police officer may simply reflect the exercise-'at top speed'-of the person's constitutional right to ' "move on." ' Shabaz, 424 Mich. at 63, 378 N.W.2d at 460. Terry and Royer stand for the proposition that exercise of this constitutional right may not itself provide the basis for more intrusive police activity.

A prime concern underlying the Terry decision is protecting the right of law-abiding citizens to eschew interactions with the police. Authorizing the police to chase down and question all those who take flight upon their approach would undercut this important right and upset the balance struck in Terry between the individual's right to personal security and the public's interest in prevention of crime. We therefore join those jurisdictions holding that flight from a police officer is sufficient to justify an investigatory stop only when coupled with ...


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