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People v. Gherna

January 24, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
LYNETTE S. GHERNA, APPELLANT.



The opinion of the court was delivered by: Chief Justice McMORROW

Docket No. 92554-Agenda 9-May 2002.

On August 26, 1999, officers approached a vehicle driven by defendant, Lynette Gherna, observed certain items in the vehicle, asked defendant to exit the vehicle in order to conduct a search, and later arrested and charged defendant with one count of possession of a controlled substance (720 ILCS 570/402(c) (West 2000)). Prior to trial, defendant filed a motion to suppress evidence. After conducting a hearing, the circuit court of Vermilion County granted defendant's suppression motion, rejecting the State's contention that the officers' encounter with defendant was entirely consensual. The State filed a certificate of substantial impairment and appealed the circuit court's ruling pursuant to Supreme Court Rule 604(a) (188 Ill. 2d R. 604(a)). With one justice dissenting, a panel of the appellate court reversed the judgment of the circuit court and remanded this cause for further proceedings. 325 Ill. App. 3d 157. We allowed defendant's petition for leave to appeal pursuant to our Rule 315 (177 Ill. 2d R. 315). For the reasons that follow, we reverse the judgment of the appellate court.

BACKGROUND

Defendant was arrested by Danville police officers on August 26, 1999, and charged with one count of possession of a controlled substance (720 ILCS 570/402(c) (West 2000)). Approximately one month after defendant's arrest, on September 23, 1999, the circuit court held a preliminary hearing on defendant's motion to suppress the evidence seized by the police officers when defendant was arrested. Danville police officer Troy Wasson, who was the only witness to testify during the hearing, stated that at 9 p.m. on August 26, he and his partner, Officer Doug Smalley, were on bicycle patrol. At that time the officers observed two females sitting in a pickup truck parked in an apartment complex parking lot. Officer Wasson testified that as he and his partner were riding by the truck, he "observed a bottle of beer in the-sitting in a cup holder console-or in the center console between the two girls." Officer Wasson stated that because the passenger in the truck "appeared to me to be pretty young," he and his partner suspected possible underage drinking and therefore "stopped to identify both the people inside the vehicle." The officers determined that defendant, the driver of the truck, was over the age of 21, and that the passenger in the vehicle was defendant's 13-year-old daughter. The officers also examined the bottle of beer and determined that the bottle was unopened and in its original container.

Officer Wasson further testified that after ascertaining that no underage drinking had occurred, he began "casually talking" with defendant. Officer Wasson stated that defendant became "very nervous" as they conversed. Officer Wasson testified that it was during this conversation that he observed an item resembling a credit card located underneath defendant's left thigh as she was sitting inside the truck. Wasson stated that he asked defendant about the card, that defendant showed the card to him, and that Wasson saw that it was an Illinois Link card in the name of Lowell Briggs. Officer Wasson then asked defendant where she had obtained the card. Defendant replied that she did not know how the card got into her vehicle and that possibly someone had dropped it there when the police arrived. Officer Wasson testified that "[a]t that point I asked [defendant] to exit the car so I could speak with her in private, not around her 13-year-old daughter." According to Officer Wasson, he and defendant "then stepped next to the vehicle," and he asked defendant if there were any other items in the car that could belong to Lowell Briggs and of which defendant was unaware. According to Wasson, defendant stated that the officers were "free to look." Officer Wasson testified that he and his partner did not search the vehicle at that time because Wasson "was still talking with [defendant]." Wasson then asked defendant if she "had anything on her that belonged to Lowell Briggs," including any illegal drugs or narcotics, to which defendant replied in the negative. Officer Wasson testified that "[a]t that point I paused," and defendant then began emptying her front pockets. As defendant was removing various items from her pockets, a clear plastic baggie fell to the ground that contained several yellowish-white rocks, which subsequently field-tested positive for cocaine. Officer Wasson stated that defendant was then placed under arrest.

Prior to trial, defendant filed with the circuit court a motion to suppress evidence, alleging that she was searched without a warrant and without probable cause in violation of the fourth amendment of the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §6). Specifically, defendant asserted that the officers' approach to her vehicle amounted to a Terry stop to investigate whether minors were unlawfully consuming alcohol. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Defendant argued that after the officers determined that no underage drinking or open alcohol violation had taken place, the officers' investigation should have ceased. Relying upon this court's decision in People v. Brownlee, 186 Ill. 2d 501 (1999), defendant concluded that her continued detention by the officers after the basis for the Terry stop was dispelled constituted an unlawful seizure.

On September 7, 2000, approximately one year after defendant's arrest, the circuit court conducted a hearing on defendant's suppression motion. Again, Officer Wasson was the only witness to testify during the proceedings. Although Officer Wasson's general recounting of the events leading up to defendant's arrest was similar to the testimony he gave during the preliminary hearing, Officer Wasson provided additional details not mentioned during his earlier testimony. Officer Wasson stated that on the evening of defendant's arrest, both he and his partner were on bicycle patrol and were outfitted in Danville police bicycle uniforms, which consisted of a shirt with a badge and short trousers, and were carrying weapons and other police gear, such as radios, flashlights, and handcuffs. Although Officer Wasson stated, as he had during the preliminary hearing, that his encounter with defendant began when he and his partner observed two individuals sitting inside a truck parked in an apartment complex parking lot, Officer Wasson added that he and his partner were patrolling the area of the parking lot "due to the high levels of drug activity" there. Officer Wasson described the parking lot as "what the city refers to as a stop area *** a high drug and crime area[ ] *** [where officers are assigned] to help stop the drug flow or any other criminal activity that's going on in the area." Officer Wasson repeated his preliminary hearing testimony that he observed a bottle of beer in the console between the driver and the passenger, and it was the presence of the beer bottle that caused the officers to "pay[ ] notice to the age of the occupants." Officer Wasson stated that during his encounter with defendant, he was positioned with his bicycle at the driver's side of defendant's "full size" truck, while Officer Smalley was positioned with his bicycle at the vehicle's passenger side. According to Wasson, although he recognized defendant, her passenger appeared to be very young, "under 21." Officer Wasson testified that he wanted to examine the bottle of beer because he suspected that underage drinking may have taken place. Defendant gave the bottle to Officer Wasson, and, upon his examination, it appeared unopened and in its original container. Officer Wasson handed the bottle back to defendant after determining that underage drinking had not occurred. Although Officer Wasson testified, as he did at the preliminary hearing, that he then "engag[ed] in conversation with [defendant]," he added that he questioned defendant with respect to her presence in the area, and that while he was conversing with her, he was "peering into the car" with his flashlight and observed the card under defendant's left thigh. Officer Wasson asked defendant what it was and she stated that she did not know and reached down and handed it to him. He then asked defendant if there was anything else in the truck that she was not aware of, such as illegal drugs or weapons, and she stated that they were "free to look." Officer Wasson testified that he "asked [defendant] to go ahead and exit the pickup truck," and defendant complied. Officer Wasson stated that he "request[ed]" defendant to exit the vehicle because she had told them that they were free to look. On cross-examination, Officer Wasson acknowledged that during the preliminary hearing he had testified that the reason he asked defendant to exit the vehicle was so that he could speak to her more privately away from her daughter. Wasson then stated that he asked defendant to exit the vehicle for both purposes, and that he had intended to ask defendant "questions about drug use, drug sales, the use of illegal drugs and narcotics" and that such questions would be inappropriate for a 13-year-old to hear. According to Officer Wasson, he and defendant walked towards the front of the truck and he continued to engage her in conversation, asking defendant if she had any illegal drugs in her possession. When defendant replied in the negative, Officer Wasson testified, "I paused for a few moments; and while I was pausing [defendant] began to empty her pockets." Officer Wasson referred to the police report and stated that the pause was of approximately 10 seconds in duration. As defendant was emptying her pockets, a small baggie containing what later was determined to be crack cocaine fell to the ground. Defendant was arrested. A subsequent search of defendant's vehicle yielded no contraband.

On September 26, 2000, the circuit court entered a written order granting defendant's motion to suppress. In the order, the circuit court judge rejected the State's contention that the officers' encounter with defendant was completely consensual and, therefore, did not implicate the fourth amendment. The circuit court found that in the case at bar, "the officers approached specifically as a result of their observation of the youth of the passenger and the suspicion that underage drinking was taking place. This does not appear to be in the nature of a community caretaking function; clearly the officers intended to investigate and determine whether underage drinking was occurring. Therefore, the court finds this circumstance to be more akin to a `Terry stop,' in which the police have a reasonably articulable suspicion of criminal activity." The circuit court then relied upon the reasoning in this court's decision in People v. Brownlee, 186 Ill. 2d 501 (1999), and held that the officers' actions and the inquiry that followed amounted to an unlawful detention. Specifically, the circuit court determined that "[o]nce the officers found the beer to be unopened, the reason for their inquiry ended. Upon asking the defendant to leave the car so as to conduct a conversation outside the presence of her daughter, the defendant was unlawfully detained. The court rejects the State's position that this was a mere request because a person in the defendant's position could reasonably believe that upon being asked to step away from the car, she was not free to leave. Accepting the testimony that the defendant thereafter gave her consent to search, the court finds such consent was tainted as a product of that unlawful detention."

In its written opinion, the circuit court also "took notice of the transcript of the preliminary hearing, which did not refer in any way to the area being targeted for drug activity or otherwise indicating the officer's original suspicion to be anything other than underage drinking."

A majority of the appellate court reversed the judgment of the circuit court and remanded the cause for further proceedings. 325 Ill. App. 3d 157. The appellate court majority determined that the encounter between defendant and the officers was entirely consensual and, accordingly, defendant's rights under the fourth amendment were not implicated. In finding that defendant had not been seized at any time, the appellate majority relied upon the United States Supreme Court's decision in United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980), where the Court listed several examples of circumstances that could suggest that a seizure had occurred, including the presence of more than one officer, the display of a weapon by an officer, an officer's physical touching of a citizen, or the officer's use of language or tone of voice indicating that the citizen's compliance with the request was compelled. The appellate majority found that, in the matter at bar, none of the circumstances described in Mendenhall were present to establish that a show of authority was made by the officers against defendant. Thus, based upon the totality of circumstances surrounding the encounter at bar, the majority held that defendant was not seized by the officers because a reasonable person would have believed that she was free to leave at any time. In addition, the appellate majority rejected defendant's contention that this encounter began as a Terry stop, and held that "an officer's approach of a vehicle for the purposes of an investigation does not per se create a Terry stop." 325 Ill. App. 3d at 162. The appellate majority therefore concluded that because the contact between defendant and the police officers was completely consensual, and because defendant, therefore, had not been seized, the entire encounter required neither probable cause nor reasonable suspicion.

In a dissenting opinion, Justice Cook stated that although he agreed with the majority's proposition that merely approaching a parked vehicle and asking questions of the occupants does not constitute a seizure, he emphasized that "where the officer approaches the vehicle because he has concerns about criminal activity, the officer is not `merely approaching the vehicle.' " 325 Ill. App. 3d at 163 (Cook, J., dissenting). The dissenting justice noted that the trial court made a specific finding of fact that the officers approached defendant's vehicle as a result of their observation of the apparent youth of the passenger and the suspicion that underage drinking was taking place. The dissenting justice observed that because the community caretaking function is " ` "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute" ' " (325 Ill. App. 3d at 163 (Cook, J., dissenting), quoting People v. Murray, 137 Ill. 2d 382, 388 (1990), quoting Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 715, 93 S. Ct. 2523, 2528 (1973)), community caretaking "is not a fall-back position when the evidence is insufficient to sustain a Terry stop." 325 Ill. App. 3d at 163-64 (Cook, J., dissenting).

We granted defendant's petition for leave to appeal under our Rule 315 (177 Ill. 2d R. 315).

ANALYSIS

Defendant contends that the appellate court erred in reversing the circuit court's ruling granting her motion to suppress. Specifically, defendant argues that the circuit court correctly found that the police initiated the encounter with her in order to investigate their suspicions that underage drinking was occurring in defendant's truck. Defendant further asserts that the circuit court correctly determined that the officers' actions constituted an investigatory detention under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and that once the officers concluded that no criminal violation had occurred, the reason for the stop had come to an end and that her continued detention by the officers constituted an unreasonable seizure that violated her constitutional rights and tainted her subsequent ...


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