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People v. Smith

June 27, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH E. SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 00-CF-1960 Honorable Stephen D. White, Judge, Presiding.

The opinion of the court was delivered by: Justice Slater

UNPUBLISHED

Defendant Joseph Smith was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2000)) at the conclusion of a stipulated bench trial and he was sentenced to a term of two years' probation. On appeal, the defendant contends that the trial court erred in denying his motion to suppress. We reverse.

Facts

The only witness to testify at the suppression hearing was Officer Darrell Gavin of the Joliet Police Department. Gavin and his partner, Officer Jose, were on patrol on November 24, 2000, when they saw the defendant at 1:43 a.m. walking in the Fairmont housing project in Joliet, Illinois. The defendant had his hands clenched, and Gavin saw the defendant put something into one of his coat pockets. Gavin decided to question the defendant because Joliet has a "trespass agreement" with Fairmont which requires a "pass" to be in the housing project. However, before the officers reached the defendant, he crossed the street, thereby leaving the housing project and the City of Joliet and entering Lockport, Illinois.

By the time Officers Gavin and Jose drove around to the defendant's location, he was standing in front of a building that Gavin described as a "known drug house." Gavin testified that the defendant was not doing anything other than simply "[s]tanding there with his hands in his pockets." The two officers got out of their squad car, approached the defendant and asked him what he was doing. The defendant replied that he was waiting for his cousin. Officer Gavin then asked the defendant what he had in his pockets and the defendant did not answer. Gavin told the defendant to take his hands out of his pockets and the defendant appeared to become nervous and looked around.

Next, Gavin initially testified that the defendant turned and began to walk away. After reviewing his written report, however, Gavin testified that the defendant began to back away from the officers. The officers told the defendant to stop and to take his hands out of his pockets. The defendant continued to back away and kept his hands in his pockets. After asking the defendant "a few more times" to take his hands out of his pockets, both officers grabbed the defendant's arms. After the defendant began to struggle, the officers forced him to the ground and placed him under arrest. A subsequent search disclosed that defendant was in possession of one-tenth of a gram of cocaine.

Officer Gavin admitted that he had no idea what the defendant might have had in his pockets. He also acknowledged that he never asked the defendant if he had a "pass" for the Fairmont housing project. At the conclusion of the hearing, the trial court denied the defendant's motion to suppress.

Analysis

Defendant asserts that the trial court erred in denying his motion to suppress because: (1) the Joliet police officers had no jurisdiction to arrest him in Lockport; and (2) the officers had no justification for detaining, frisking or arresting him and therefore violated his rights under the fourth amendment. Because we find that the latter contention requires reversal of the defendant's conviction, we do not address the jurisdictional argument.

A ruling on a motion to quash arrest and suppress evidence is generally subject to reversal only if it is manifestly erroneous. People v. Krueger, 175 Ill. 2d 60, 675 N.E.2d 604 (1996). However, where, as here, neither the facts nor the credibility of witnesses is at issue, de novo review is appropriate. See People v. Dilworth, 169 Ill. 2d 195, 661 N.E.2d 310 (1996).

The fourth amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. However, the fourth amendment was not intended to eliminate all contact between citizens and the police, but to prevent arbitrary and oppressive interference with an individual's privacy and personal security. United States v. Mendenhall, 446 U.S. 544, 553-54, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, ___ (1980). Thus the police do not violate the fourth amendment by merely approaching an individual on the street and putting questions to him if the person is willing to listen. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983).

"The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He 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." Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at ___.

The State contends that the initial encounter between the defendant and Officers Gavin and Jose involved no coercion or detention and was a consensual police-citizen interaction. We agree. "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, ___ n.16 (1968); see also Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, ____ (1991) ("Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure."). In this case there was initially no seizure because the defendant was already stopped, standing in front of a "known drug house." Furthermore, when the officers left their vehicle and asked the defendant what he was doing, he was not ...


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