Appeal from the Circuit Court of Du Page County. No. 98--CF--26 Honorable Michael J. Burke, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
Following a bench trial, the defendant, Quincy L. Lockett, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402 (a)(2)(A) (West 1998)) and resisting a peace officer (720 ILCS 5/31--1(a) (West 1998)). The trial court sentenced him to 24 months' probation and 100 days in jail. The defendant appeals, contending that the trial court erred in denying his motions in limine to quash his arrest and suppress evidence.
At the hearing on the defendant's motions to quash arrest and suppress evidence, the defendant testified that he was arrested on January 5, 1998, around 10:30 p.m. At that time, he lived at 585 West Lynne Road, apartment 10, in Lombard, Illinois. He had been out walking prior to his arrest. When he returned to his apartment building, he went through a common entrance door and saw a uniformed officer standing at another door. When the defendant was about four feet from the officer, the officer asked the defendant what he was looking for and the defendant responded, "no one." The defendant then turned around and began to go back out the door. However, the defendant heard footsteps behind him and began to run. The defendant claimed that the officer then tackled him, wrestled him to the ground, and sprayed mace in his face. The officer then walked the defendant back to the squad car and told him he was under arrest. The officer then searched the defendant's person and found a packet of drugs in his pocket.
Du Page County Sheriff's Deputy Juan Marquez testified that he responded to a complaint that loud noise was coming from apartment 18 at the Willow Lakes Apartments on the evening in question. Marquez noted that apartment 18 was on the second floor and apartment 10 was on the third floor. Marquez was familiar with apartment 18 because one week earlier at the same apartment there had been a gang fight, which resulted in an aggravated battery. Deputy Marquez stated that, while he was speaking with the occupants of apartment 18 and telling them to turn down the music, the defendant walked by Marquez and passed the threshold of the apartment. The occupant of the apartment then stopped the defendant from entering all the way and told the defendant to leave. The defendant stated that he wanted to talk to someone. The occupant again asked the defendant to leave. The defendant then turned around and asked Marquez who he was. Deputy Marquez advised the defendant that he was a police officer and asked the defendant to leave. The defendant walked out of the apartment and stood in the hallway in front of the apartment door. Marquez again asked the defendant to leave, but the defendant refused. Marquez then told the defendant that he would walk him home.
Deputy Marquez further testified that, after he finished addressing the occupant of apartment 18, he turned around and asked the defendant where he lived. The defendant told the deputy that he lived next door. Marquez noticed that the defendant's pupils were dilated, he wavered while talking, and he smelled of alcohol. Marquez concluded that the defendant was either drunk or high on something. When the defendant started to walk away down a flight of stairs, Marquez followed behind the defendant. As they walked down the stairs, Marquez asked the defendant for his name and identification. The defendant refused to give his name and told the deputy that he did not have any identification. As the defendant traversed the stairs, it appeared to Marquez that the defendant was trying to hide his left hand from view. The defendant was reaching across his body and holding on to the left rail with his right hand.
When they got to the bottom of the stairs, the defendant turned to exit and that placed Deputy Marquez in front of the defendant. At that point, the deputy again asked the defendant for identification, but the defendant did not have any. Marquez explained that he stopped at the exit because he thought that the defendant lived in the next-door apartment and yet they were leaving the building. As the defendant was standing in front of him, Marquez noticed that the defendant was hiding his left hand behind him. When the deputy asked to see the defendant's hands, the defendant showed the deputy the defendant's empty right hand. Fearing that the defendant had a weapon in his left hand, Marquez asked the defendant what was in his left hand. When the defendant refused to show it, Marquez reached for it, but the defendant moved his hand away. Marquez attempted "to control" the defendant's left hand. At that moment, the defendant made a sudden movement toward his face with his left hand. Marquez thought that the hand was coming toward Marquez's face and that he was being attacked. Marquez deflected the defendant's hand, and an object bounced off the defendant's cheek and rolled down his shoulder. The object was a white rock substance. Marquez thought that it was cocaine. Before deflecting the defendant's hand, Marquez had not touched the defendant at any time.
When the defendant realized that he had lost control of the white object, he pushed Marquez and lunged at him. Marquez then brought the defendant face down to the ground and informed him that he was under arrest. As the defendant continued to struggle, Marquez reached for his handcuffs. At that moment, the defendant escaped from Marquez's grasp and ran for the exit. Marquez, however, was able to apprehend the defendant, and Marquez again advised the defendant that he was under arrest. Marquez also informed him that if he continued to struggle Marquez would spray him with mace. Despite this warning, the defendant again escaped and tried to open a door to an inner corridor. However, Marquez was able to place his foot against the door to prevent the defendant from opening it all the way. Marquez then repeated his warning that if the defendant continued to struggle the deputy would spray him with mace. Thereafter the defendant continued to resist, and Marquez sprayed him with mace. Marquez then handcuffed the defendant and placed him in a squad car.
Deputy Marquez testified on cross-examination that he noticed that the defendant had his left hand clenched when he walked down the stairs. When they both reached the bottom of the stairs, the deputy asked to see what was in the defendant's left hand, but the defendant refused to show it. Out of concern for his safety, the deputy then reached for the defendant's left hand to control it. At that point, the defendant made a sudden move in an attempt to swallow the object in his left hand. Marquez acknowledged that he did not note in his police report that he felt that the defendant was trying to strike him when he made the sudden movement. He explained, however, that this was because he realized after the fact that the defendant's intention was to swallow the item. The deputy also explained that he stopped the defendant to talk to him at the bottom of the stairs because he thought that the defendant lived next door yet they were leaving the building.
After hearing the above-mentioned evidence, the trial court denied the defendant's motions to quash arrest and suppress evidence. In so doing, the court noted that the two witnesses had testified to completely different versions of the incident. The court resolved the credibility issue in favor of Deputy Marquez, finding that his testimony was detailed, clear, and credible. The court noted that the deputy gave the defendant two opportunities to leave the area before offering to escort him out. At the time, the defendant appeared drunk or high and was hiding something from the deputy. No seizure occurred at the bottom of the stairs because the deputy never grabbed the defendant and only asked to see what was in the defendant's hand for his own safety. At that time, the deputy believed that the defendant was raising his right hand to strike the deputy. In the process of attempting to ward off the blow, an item that appeared to be a piece of rock cocaine fell to the ground. At that point, the deputy had probable cause to arrest the defendant.
On appeal, the defendant contends that the trial court erred in denying his motions to suppress. He maintains that the encounter between the defendant and Deputy Marquez was not consensual after the point that the defendant refused to provide his name and identification. The defendant contends that the encounter was not justified as a valid investigative stop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), or as a legitimate exercise of a "community care-taking function" pursuant to People v. Murray, 137 Ill. 2d 382 (1990).
Generally, a trial court's ruling on a motion to quash arrest and suppress evidence will not be overturned on review unless it is manifestly erroneous. People v. Dilworth, 169 Ill. 2d 195, 201 (1996). However, de novo review is appropriate when neither the facts nor the credibility of the witnesses is questioned. People v. James, 163 Ill. 2d 302, 310 (1994). If the trial court's determination of credibility in favor of a police officer is not against the manifest weight of the evidence, a reviewing court will conduct a de novo review of the defendant's legal challenge under that officer's version of the events. People v. Gonzalez, 184 Ill. 2d 402, 412 (1998). As the movant, the defendant has the burden of proof to establish that a search and seizure are unlawful or impermissible. People v. Scott, 249 Ill. App. 3d 597, 600-01 (1993).
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. The touchstone of any analysis of an alleged intrusion depends on balancing the public interest against the individual's right to be free from arbitrary interference by law officers. Gonzalez, 184 Ill. 2d at 413. A law enforcement officer does not violate the fourth amendment's guarantee against unreasonable search and seizure by approaching a person and questioning him or asking him to provide identification. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983); People v. Billingslea, 292 Ill. App. 3d 1026, 1029 (1997); People v. Anaya, 279 Ill. App. 3d 940, 944 (1996).
Our supreme court in People v. Murray, 137 Ill. 2d 382 (1990), noted that there are three tiers of police-citizen encounters. One tier involves an arrest of a citizen, an action that must be supported by probable cause; otherwise, the fourth amendment prohibition against unreasonable seizures is violated. Murray, 137 Ill. 2d at 387.
The next tier involves a stop pursuant to Terry. Murray, 137 Ill. 2d at 387. In Terry, the United States Supreme Court recognized a limited exception to the probable cause requirement that, under appropriate circumstances and in the appropriate manner, allows a police officer to briefly detain a person for investigatory purposes and also, if necessary for safety, to conduct a limited protective search of that person for weapons. In re J.J., 183 Ill. App. 3d 381, 384 (1989). An officer may make a valid Terry stop if, based on all the facts and circumstances, he had a reasonable and articulable suspicion that the suspect is committing, has committed, or is about to commit a crime. People v. Ertl, 292 Ill. App. 3d 863, 868 (1997). An objective standard applies to a review of a Terry stop, so that a police officer must be able to point to specific and articulable facts that, taken together from the rational inferences from those facts, reasonably warrant the stop. People v. Long, 99 Ill. ...