Appeal from the Circuit Court of Du Page County. No. 98-CF-2604 Honorable Nicholas J. Galasso, Judge, Presiding
The opinion of the court was delivered by: Justice McLAREN
Defendant, John A. Gonzalez, was charged with possession of a controlled substance (720 ILCS 570/402(c) (West 1998)). The State appeals an order granting defendant's motion to quash his arrest and suppress evidence (see 145 Ill. 2d R. 604(a)(1)). We affirm.
Defendant and Officer John McCarthy testified at the hearing on defendant's motion. Defendant gave the following testimony. On December 9, 1998, he was riding in the front passenger seat of a car driven by his friend. The car was pulled over for having no front license plate. Officer McCarthy and another officer asked the driver for identification and proof of insurance. The driver had no proof of insurance, so the officers ordered him out of the car. As defendant sat in the car, Officer McCarthy asked defendant for identification. Defendant complied and gave Officer McCarthy a traffic ticket, and the officer returned to his squad car. Officer McCarthy wore street clothes, his gun was not drawn, and his manner was not belligerent or abusive.
Defendant testified that about 5 to 10 minutes later Officer McCarthy returned and asked defendant to step out of the car, and defendant complied. After defendant stepped out of the car, Officer McCarthy asked defendant to put out the cigarette he was smoking. Defendant responded by asking Officer McCarthy if he was under arrest. Officer McCarthy told defendant that he was not under arrest. Defendant further testified: "So I told him, no, I wasn't going to put my cigarette out." Officer McCarthy told defendant that he had to search defendant "for his own safety and whatnot. And I asked him again, am I under arrest. He told me no. *** He told me because I was arrested before he wanted to search me to be safe." Defendant testified that "[Officer McCarthy] asked if he could search me. I said, no, you cannot." However, defendant opened up his jacket and patted himself down to show Officer McCarthy that he had no weapons. Officer McCarthy then placed his hand on defendant's shoulder and guided defendant to the back of the car, where Officer McCarthy searched defendant. Officer McCarthy felt a small bulge in defendant's pocket and asked what it was. In response, defendant pulled another traffic ticket out of his pocket; the ticket unfolded and cocaine fell out. Officer McCarthy then arrested defendant.
Officer McCarthy testified as follows. On December 9, 1998, he and Officer Lee were on routine patrol and stopped a car for having no front license plate. As Officer Lee spoke to the driver, Officer McCarthy approached defendant and requested identification. Defendant was simply sitting in the car. Officer McCarthy knew of no outstanding warrants to arrest or search defendant and never saw a weapon on defendant nor did he see defendant committing any crime. After defendant gave Officer McCarthy a traffic ticket, the officer returned to his squad car and ran a computer check that revealed that defendant was a gang member, was on parole, and had a lengthy criminal history.
Officer McCarthy testified that he then returned to the stopped car. Because of the information obtained during the computer check, Officer McCarthy was concerned that defendant might have a weapon. Officer McCarthy asked defendant to step outside. Officer McCarthy testified at this point that defendant was not free to leave. Defendant complied with Officer McCarthy's directive. Officer McCarthy asked defendant if he had anything he should not have. Defendant replied "no" and opened the front of his jacket as if to show that he was not hiding anything. Officer McCarthy stated that he asked defendant if he could search defendant and defendant replied "yes." As Officer McCarthy patted down defendant, he felt a bulge in defendant's pocket and asked what it was. Defendant replied that it was a traffic ticket, reached into his pocket, and pulled the folded ticket out. As he opened the ticket, cocaine fell out. Officer McCarthy arrested defendant. Officer McCarthy estimated that perhaps five or six minutes passed between the traffic stop and his search of defendant.
The trial court noted that there was some conflicting testimony surrounding the circumstances of the search but that Officer McCarthy was credible. The court determined that the initial traffic stop was valid. However, Officer McCarthy did not have a lawful basis to ask defendant for identification because Officer McCarthy did not suspect defendant of any criminal activity. Therefore, the search was tainted. Relying on our opinion in People v. Branch, 295 Ill. App. 3d 110 (1998), the trial court granted defendant's motion to suppress. Citing People v. Smith, 266 Ill. App. 3d 362 (1994), the State moved to reconsider, asserting that Officer McCarthy's request for identification did not violate the fourth amendment. The trial court denied the motion. The State filed the instant appeal.
On appeal, the State argues that Officer McCarthy's request for identification from defendant, who was riding in a car that was stopped for a traffic violation, did not violate defendant's fourth amendment rights. Therefore, the State argues that the trial court erred by granting defendant's motion to suppress evidence and quash the arrest. We disagree with the State.
In reviewing a ruling on a motion to suppress and motion to quash arrest, we must accept the trial court's factual findings unless they are against the manifest weight of the evidence. See People v. Lockett, 311 Ill. App. 3d 661, 666 (2000). If we accept the trial court's findings, we review de novo whether suppression is warranted under these facts. See People v. Gonzalez, 184 Ill. 2d 402, 411-12 (1998). Here, the trial court found, in part, that Officer McCarthy was credible and that he had no reasonable suspicion of criminal activity at any time during the encounter with defendant. After reviewing the record, we do not believe these findings are against the manifest weight of the evidence. Accordingly, we will review the trial court's decision to grant defendant's motion to suppress de novo. See Gonzalez, 184 Ill. 2d at 412.
The fourth amendment protects 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. Similarly, article I, section 6, of the 1970 Illinois Constitution states, "The people shall have the right to be secure in their persons, houses, papers[,] and other possessions against unreasonable searches, seizures, invasions of privacy[,] or interceptions of communications by eavesdropping devices or other means." Ill. Const. 1970, art. I, §6. The fourth amendment of the United States Constitution sets the minimum rights a person shall receive against unreasonable government search and seizure. However, the Illinois Constitution gives greater protection against unreasonable searches and seizures than does the United States Constitution. People v. McGee, 268 Ill. App. 3d 32, 40-41 (1994).
For fourth amendment purposes, there are three tiers of lawful police-citizen encounters: (1) the arrest of a citizen supported by probable cause; (2) a Terry stop or brief seizure of a person, which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) an encounter commonly known as the community caretaking or public safety function, which involves no coercion or detention and thus does not involve a "seizure." People v. Leifker, 307 Ill. App. 3d 25, 28 (1999).
Generally, a stop for a minor traffic violation is considered a Terry stop (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)). People v. Smith, 315 Ill. App. 3d 772, 775 (2000). A Terry stop is a seizure that involves only a brief detention, stopping short of a traditional arrest. People v. Brownlee, 186 Ill. 2d 501, 518 (1999). To comport with the requirements of the fourth amendment of our federal constitution and article I, section 6, of our Illinois Constitution, Terry stops, or short investigatory stops, are permissible only if there is a reasonable suspicion "that the person has committed, or is about to commit, a crime." Brownlee, 186 Ill. 2d at 518. When considering whether a seizure was reasonable, a court must balance the public interest against the a person's right to be free from arbitrary interference from police officers. Gonzalez, 184 Ill. 2d at 413. A Terry stop is deemed reasonable only if the detention was (1) justified at its inception; and (2) reasonably related in scope to the circumstances that justified the detention in the first place. Brownlee, 186 Ill. 2d at 518-19.
When applying these standards, Illinois courts have held that, in most cases, when a police officer stops a driver pursuant to a lawful traffic stop, the officer may request a driver's license from the driver and run a quick warrant check. People v. Branch, 295 Ill. App. 3d 110, 113 (1998). However, generally, a police officer may not ask for and run a warrant check on the identification of a passenger, without reasonably suspecting the passenger of criminal activity. Branch, 295 Ill. App. 3d at 114-15; People v. Jennings, 185 Ill. App. 3d 164, 169 (1989). Such a request can render the otherwise lawful detention of the driver an unlawful seizure of the passenger. See Branch, 295 Ill. App. 3d at ...