The opinion of the court was delivered by: Justice McMORROW
Agenda 15-September 1998.
The central issue presented in this appeal is whether, upon legally stopping a vehicle for a traffic violation, it is reasonable for a police officer to immediately instruct a passenger to remain at the stopped car when that passenger, of his own volition, exits the vehicle at the outset of the stop. We also consider whether it was appropriate, in this case, for the officer to conduct a pat-down search of defendant John Gonzalez when defendant indicated that he had a weapon on his person. With one Justice Dissenting, the appellate court affirmed the circuit court of denial of defendant's motion to suppress. 294 Ill. App. 3d 205. For the reasons that follow, we affirm the judgment of the appellate court.
Defendant's conviction stems from an incident which occurred during the early morning hours on October 27, 1994. Defendant, who had a prior felony conviction, was a passenger in a car stopped for a traffic violation. After the car was stopped, defendant exited the vehicle and was proceeding to leave the scene. The police officer ordered defendant to remain at the scene. Defendant returned, was searched, and was found in possession of a handgun and four rounds of ammunition. Prior to trial, defendant filed a motion to suppress the handgun, alleging that the gun was recovered as a product of an illegal search and seizure. The trial court conducted a hearing on defendant's suppression motion, during which the following evidence was presented.
Officer Kevin Gulley, a Rockford Police Department canine officer, testified that on October 27, 1994, at approximately 2:40 a.m., he was seated in his marked K-9 police car on a Rockford side street. Gulley described the location of his patrol as a high-crime area which generates frequent calls concerning drug activity and shots being fired, with the number of calls escalating in the very early morning hours. The officer testified that as he was seated in his squad car, he observed a vehicle pass which, based upon his experience, he estimated was traveling 40 miles per hour in a 30 mile-per-hour zone. Gulley observed a white female driving the speeding vehicle, but did not notice any other passengers in the car. Gulley testified he activated his emergency lights, effectuated a traffic stop of the vehicle, and directed his spot light at the vehicle's rear view mirror. As Officer Gulley was exiting his squad car, defendant "abruptly" exited from the rear passenger seat of the stopped vehicle. Gulley testified that he immediately ordered defendant to stop and return to the vehicle because the officer "didn't know what [defendant] was planning on doing." Because defendant ignored Gulley's command and continued to walk away, the officer instructed his police dog to exit the squad car and stand in the "heel" position next to Gulley, at which point the dog began "barking his head off." Officer Gulley repeated his instruction to defendant to stop and return to the vehicle. After this second command, defendant, who Officer Gulley estimated had walked six to seven feet away from the vehicle, stopped, turned around, and looked at the officer. After hesitating a few seconds, defendant walked back to the stopped vehicle. Gulley testified that from the time defendant exited the stopped vehicle to the time he returned to the car, approximately 30 seconds had passed. Because of defendant's "strange behavior," Gulley asked defendant whether he was carrying any guns, needles or knives, to which defendant replied "yes." Officer Gulley then patted defendant down for weapons, and discovered the gun inside the front waist area of defendant's pants. During cross- examination, Officer Gulley acknowledged that he did not include an account of his conversation with defendant in his police report; instead, Gulley wrote in his report that he "conducted a check of [defendant's] person for weapons due to his strange behavior."
When asked why he instructed defendant to return to the vehicle, Officer Gulley stated that defendant "exited the vehicle so abruptly I wasn't sure what he was going to do. I didn't know him at that time or who else was in the vehicle. And I still hadn't completed my traffic stop, so just for my safety, I requested that he return to the vehicle." During cross-examination, in response to the question of whether he feared for his personal safety when defendant exited the stopped vehicle and walked away from the scene, Gulley replied that "[d]ue to the fact that I still had a *** traffic stop to conduct, yes, I did." Although Officer Gulley testified that based upon his experience defendant displayed "strange behavior," Gulley acknowledged during cross-examination that up until the point defendant was instructed to return to the stopped vehicle, defendant had not engaged in a violation of the criminal laws, there was nothing that Gulley observed that indicated that defendant was committing or had committed a crime, and he observed nothing in defendant's hands as he turned around to return to the stopped vehicle.
Rebecca Sigala, the front-seat passenger in the car, testified that she, defendant, and the car's driver, Jessie Hogan, were returning from an evening out, and Hogan was dropping defendant off at his home. According to Sigala, Hogan had pulled over to the curb in front of defendant's home, defendant said good-bye, and exited the vehicle. Sigala testified that defendant had not gone more than a few feet when a police car pulled up behind them, the officer exited the car, and then said to defendant, "Hey, come here." The witness stated that defendant appeared surprised that the officer was calling to him, immediately walked over to the officer, and engaged the officer in a conversation, at which time the police dog began to bark. Sigala testified that when the police car pulled up behind them, neither its emergency lights nor its spotlight were activated, although the officer did turn on the spotlight immediately before he called to defendant, and the car's emergency lights were activated when defendant was placed in handcuffs. According to Sigala, when backup officers arrived at the scene, she commented to the officers that she did not know why Officer Gulley had pulled up behind them. Sigala testified that an unidentified officer replied that Officer Gulley had radioed that he recognized defendant when the vehicle first passed him and that Gulley intended to pull the car over to investigate.
Jessie Hogan testified that she had spent the evening with defendant and Sigala, and was driving defendant home. Hogan testified that on the way to defendant's residence, she noticed a police car parked on a side street. According to Hogan, this caused her to look down at her speedometer and she saw that she was traveling the speed limit. Hogan then stopped the car by the curb, defendant said good-bye, and he exited the vehicle. Hogan testified that almost immediately after defendant left the car, another car pulled up behind them. Hogan recognized the car as a police vehicle because she saw a light bar across the top, although the emergency lights were not activated at that time. According to Hogan, the officer activated the spotlight, ordered defendant to "come here," and defendant immediately went over to the officer to speak with him. Because the emergency lights of the police vehicle were not activated, Hogan believed that the officer was concerned only with defendant and that it was not a traffic stop. However, as Hogan started to pull away, the officer whistled her to stop, and she was subsequently issued a ticket for a speeding violation. According to Hogan, the police car's emergency lights were activated only after defendant was taken into custody. On cross-examination, however, Hogan stated that she was aware that a police car was following them before she stopped the vehicle. Hogan additionally testified on cross-examination that defendant was also aware that a police car was behind them before they stopped, as defendant looked back through the vehicle's rear window. At the Conclusion of the hearing, the trial court determined that Officer Gulley's testimony was more credible than that of Sigala and Hogan, and denied defendant's motion to suppress. Based upon the version of events described by Officer Gulley, the trial court Judge found that "if an officer effectuates a legal traffic stop for a violation of the law, [then] he has the right to insist the occupants in the car remain in the car, and that's not what the defendant did." The trial court Judge further held that, under the circumstances of the traffic stop, it was not unconstitutional for Officer Gulley to inquire of defendant whether he was carrying any weapons, and when defendant answered affirmatively, it was not unconstitutional for Officer Gulley to perform the pat-down search which revealed the weapon.
At trial, the testimony of Officer Gulley, Sigala, and Hogan was substantially similar to the testimony each provided at the hearing on the suppression motion. Defendant testified on his own behalf and admitted that he had prior convictions for robbery and aggravated discharge of a firearm. Defendant related that as Hogan was driving him home, they saw a police car parked on a side street. When Hogan pulled to the curb in front of defendant's residence, defendant said good-bye and exited the vehicle. It was at this point that defendant saw a police car approach and park behind Hogan's vehicle. According to defendant, the police car's emergency lights were not activated at this time. The officer shined his spotlight into Hogan's car and defendant heard someone say "come here." Defendant testified that he turned towards the officer and went directly back to him. According to defendant, when he met Officer Gulley in front of the police car, Gulley asked defendant where he lived and what he was doing. Defendant stated that Gulley then asked defendant for identification, and when defendant hesitated, he ordered defendant to place his hands on the hood of the police car, pulled defendant's wallet out of defendant's pants pocket, threw it on the car's hood, and instructed defendant to take out his identification. After ordering defendant to sit on the police car's hood, Officer Gulley took the police dog from the car and directed the dog to sit on the ground near defendant. According to defendant, Gulley proceeded to search the area around Hogan's car and recovered a handgun from the leaf-covered curb. Although defendant denied that the gun was his, Officer Gulley placed defendant in handcuffs, radioed for assistance, and activated the police car's emergency lights. According to defendant, Officer Gulley never inquired whether defendant had any needles, guns or knives in his possession at the time of the stop.
Upon hearing all of the evidence, a jury convicted defendant of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1994)), and defendant was sentenced to nine years' imprisonment. On appeal, defendant challenged the trial court's denial of the suppression motion. A majority of the appellate court affirmed the ruling of the trial court.
The appellate court majority noted that under the United States Supreme Court's recent decision in Maryland v. Wilson, 519 U.S. 408, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997), in instances where a police officer has lawfully stopped a motor vehicle pursuant to a traffic stop, the officer may, as a matter of course, order the driver and passengers out of the vehicle. 294 Ill. App. 3d at 211. Applying the rationale of Wilson to the matter at bar, the majority determined that "[i]t would be illogical to grant an officer the right to order a passenger out of the vehicle, but not to allow the officer to have control over the passenger's movement during the duration of the traffic stop *** [therefore, the] interest in officer safety presents a compelling justification to permit the officer to have control over the movement of all occupants of a legally stopped vehicle." 294 Ill. App. 3d at 211-12. Balancing this interest against an individual's interest in personal liberty, the majority concluded that requiring a passenger to remain at the scene of a traffic stop posed a de minimis intrusion on the passenger's liberty interests, outweighed by the public interest in officer safety. The majority therefore held that under the circumstances it was permissible for Officer Gulley to order defendant to remain at the stopped vehicle: the stop was conducted in a high-crime area; defendant abruptly exited the vehicle and the officer was unsure what defendant was going to do; and the officer did not know who defendant was or who else was in the car. Because Officer Gulley believed his personal safety was in danger, it was appropriate for him to detain defendant at the scene. 294 Ill. App. 3d at 213. For these same reasons, the majority determined that it was not improper for Officer Gulley to ask defendant whether he was carrying any guns, needles or knives, and that based upon defendant's affirmative response, the officer was justified in subjecting defendant to a limited search for weapons. 294 Ill. App. 3d at 213.
In Dissent, Justice Bowman wrote that because defendant exited the vehicle of his own volition and was walking away from Officer Gulley, the instant cause was factually distinguishable from Wilson. Based upon Gulley's testimony that he did not observe anything suspicious in defendant's hands or anything that indicated defendant had committed or was about to commit a crime, the Dissenting Justice determined that no threat was posed to the officer's safety, and that, therefore, any intrusion on defendant's freedom was not de minimis. The Dissenting Justice also found that because the record did not support Officer's Gulley's statement that he feared for his safety, the officer was not justified in questioning and searching defendant. 294 Ill. App. 3d at 216-17 (Bowman, J., Dissenting).
We granted defendant leave to appeal. 166 ...