The opinion of the court was delivered by: Justice Fitzgerald
The defendant, Samuel Anthony, was charged with unlawful possession of a controlled substance after Springfield police officers found a rock of cocaine on his person. The defendant filed a motion to suppress the cocaine, charging that the warrantless search and seizure conducted by the police was unconstitutional. The circuit court of Sangamon County granted the defendant's suppression motion, and the State appealed. The appellate court reversed the trial court (No. 4-99-0708 (unpublished order under Supreme Court Rule 23)), and the defendant appealed.
The central issue in this case is whether the defendant's nonverbal conduct constituted voluntary consent to search his person. We reverse the appellate court, affirm the trial court, and remand.
At the hearing on the defendant's motion to suppress, Springfield police officer Jeff Barr was the sole witness. On direct examination by the State, Officer Barr testified that in 1999 he worked on the community policing program in Springfield's Enos Park neighborhood. Under this program, an officer who normally works in that neighborhood would be assigned to patrol the area on foot. According to Officer Barr, the purpose of this program was "to make contact with the citizens, address any problems, mostly just to be seen. Walk and talk is basically how it was set up." Officer Barr stated that community policing program officers would randomly contact people outside the parameters of criminal investigations-"people on their porches, people walking on the street, people in alleys; just basically to get to know the community and to let the community get to know [the police]." In this way, officers "get to know who is in the neighborhood, where the problem areas are. That way it is more so the citizens get to know faces and not just the uniform."
At approximately 7:30 p.m. on June 11, 1999, Officer Barr and Officer Jim Stapleton were on routine walking patrol. Officer Barr testified, "At that time, I saw a black male [the defendant] exit the residence at 922 North Fourth, come out the front door-I should state that it was someone that I didn't know who lived in there at the time. There was only one resident who lived in the apartment complex there and that was a white female." The defendant saw the police officers, turned away, and started walking down an alley adjacent to the building. Officer Barr, standing 50 feet away, called to the defendant, "Excuse me, sir. Can I talk to you for a minute?" The defendant turned around and stood in the middle of the alley for approximately 30 seconds, while Officer Barr and Officer Stapleton approached.
Officer Barr testified that he introduced himself as a Springfield police officer and "just asked what he was doing in the area and who he knew at the apartment complex that he was coming out of. *** He told me that he was there visiting a female by the name of [R]obbi." Officer Barr did not physically or verbally seize the defendant, and he did not threaten the defendant with arrest. Still, the defendant was nervous; his hands were shaking, and his voice was stuttering. Officer Barr became concerned when the defendant repeatedly reached his hands into his pants pockets and pulled them out: "So, I just asked him if he could please keep his hands out of his pocket while I was talking to him and that was for my safety and for my partner's safety." The defendant cooperated with this request, and Officer Barr then asked "if he had anything on him that he shouldn't have, anything like guns, drugs, knives, anything that could hurt me or my partner." The defendant answered "no."
Officer Barr then asked the defendant if he would consent to a search of his person. Officer Barr conceded that the defendant did not give verbal consent. Instead, Officer Barr stated, "He spread his legs apart and put his hands on top of his head; assumed the position I guess is the best way to describe it." Officer Barr construed the defendant's actions as nonverbal consent. Officer Barr never applied any physical force or made any physical contact with the defendant before searching him. Officer Barr never threatened the defendant or drew his weapon. The search revealed that the defendant possessed a rock of cocaine.
During cross-examination by defense counsel, Officer Barr acknowledged that he knew a white female was living at 922 North Fourth Street. He also acknowledged that the defendant did not try to flee the officers and did not appear intoxicated or under the influence of drugs. Officer Barr testified that while he spoke with the defendant, Officer Stapleton walked 25 feet away to speak with a woman who had emerged from the apartment complex. Officer Barr never saw the defendant engage in any criminal activity and never had any prior contact with him.
The trial court granted the defendant's motion to suppress, stating, "Maybe in Russia they can do that but not here." The court elaborated:
"It is the opinion-my opinion that before you can stop anybody, you have-there has to be a suspicion and you have to be able to articulate facts that create a suspicion that they have committed a crime or are committing a crime or a crime is about to be committed.
There is nothing here. A man is walking along the street or the sidewalk. I don't think a police officer has right to do anything to that person. There is nothing here to indicate this man was doing anything wrong, period. So, that's why, and once the stop is not justified, everything else after that has to be thrown out; statements, evidence, anything."
The State appealed, and the appellate court reversed the trial court's ruling. The court found that Officers Barr and Stapleton did not conduct an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and instead concluded:
"the encounter falls under the community caretaking function and was not required to be justified by reasonable ...