Appeal from the Circuit Court of Jo Daviess County. No. 02-CF-84 Honorable William A. Kelly, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
Defendant, James V. Croft, was charged with the unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2002)), a Class 4 felony. Defendant filed a motion to quash his arrest and suppress the evidence, asserting that it was obtained through an illegal seizure. The trial court granted defendant's motion, and the State timely appealed. We affirm.
The facts are undisputed. On July 15, 2002, Officer Anthony Row was on patrol, in uniform, in a marked squad car. Accompanying Row was his friend, Brad Gardner, a police officer from Iowa who was neither in uniform nor acting in an official capacity. At 11:15 p.m., Officer Row observed defendant pushing his bicycle up a hill in a residential neighborhood. Defendant, wearing dark pants and no shirt, walked his bicycle because it did not have a light. Officer Row passed defendant in his squad car, turned around, and parked in the street. He then exited the vehicle and waited for defendant to approach. Although the red lights were not activated, the car was partially obstructing traffic. When defendant was within speaking distance, Officer Row identified himself, informed defendant of several complaints of theft and vandalism in the area, and asked for identification. Defendant was not carrying tangible identification, but provided his name and date of birth. Defendant felt that it was his duty to comply with the officer's request.
After defendant identified himself, Officer Row asked where he was headed. According to Officer Row, there had been several thefts and vandalism in the area between July 10 and 15, 2002, and it "just seemed strange" seeing defendant push a bicycle while in dark pants at 11:15 p.m. Defendant replied that he was going to see his girlfriend, Tina Fowler, and that he had been working on the roof of her parents' home. Officer Row, who had moved into the neighborhood in February 2002, "knew that she lived in that area" and that work was being done on the roof. However, Officer Row did not recognize defendant and had not seen him in the area before. Officer Row testified that he "was stopping [defendant] to make sure that there was [sic] nothing else going to happen."
Officer Row radioed the sheriff's department for defendant's criminal history and any outstanding warrants. While Officer Row was waiting for this information, Officer Hefel arrived in another squad car and parked on the other side of the street. According to Officer Row, when an officer effects a stop "of any kind," another officer automatically deploys to that area. During this time, Officer Row commented on defendant's tattoo. The tattoo, located on defendant's back, was a picture of Anamosa State Penitentiary. Officer Row had previously worked at that prison and stated that it was "a very nice tattoo." Officer Row testified that he initially saw the tattoo when his car's headlights illuminated defendant's bare back, although the tattoo was not the reason he initiated contact with defendant.
After waiting approximately 5 to 10 minutes, Officer Row was informed that defendant had no outstanding warrants. Officer Row did receive an "officer safety alert" due to defendant's previous convictions of assault, theft, and possession of drugs. According to Officer Row, "whenever a criminal history comes back with drugs," the dispatcher relays an officer safety alert, or "10-61," which is code for "isolate yourself." Officer Row then turned off his portable radio and remained outside with defendant, while Officer Hefel closed his car door and received information from the sheriff's department.
Next, Officer Row asked defendant for consent to do a pat-down search of his person to ensure that he did not have any weapons or burglary tools. Defendant agreed, turned around, and raised his arms. A pat-down of defendant's pockets and socks revealed neither weapons nor burglary tools. Officer Row then noticed that defendant was carrying a tan, transparent shopping bag, which was open at the top. Defendant testified that the transparent bag was hanging from his bike's handlebars and contained a white paper bag. Officer Row asked defendant what was in the white paper bag, and defendant replied that it contained dirty socks. Officer Hefel asked defendant if he could search the bag. According to defendant, he said "yeah" and began removing it from his handlebars. Defendant testified that Officer Hefel then reached over, grabbed the bag, and started looking through it. Defendant agreed to the search because he felt that he "had to," and because he did not feel that he could walk away. Defendant was subsequently arrested for unlawful possession of a substance containing methamphetamine (720 ILCS 570/402(c) (West 2002)).
In its ruling on the motion to quash arrest and suppress evidence, the trial court made the following findings. Based on the four previous thefts in the neighborhood, the initial encounter between Officer Row and defendant qualified as a community caretaking encounter. Defendant explained where he was headed, and this explanation was consistent with Officer Row's observation that people, in fact, had been working on the Fowlers' roof. However, the community caretaking function ceased at the point where defendant explained his conduct and the check on his information revealed no warrants. In addition, the court found that the officer safety alert did not create a basis for a Terry stop, because there was nothing to indicate that a crime had been or was about to be committed. The court determined that, even if the officer safety alert provided some basis for a pat-down, the issue was "not really relevant" since the pat-down failed to reveal any weapons. According to the court, "the encounter should have ended" at that point. However, defendant did not feel free to leave, due to the continued questioning and the presence of two squad cars. Because defendant was illegally detained, his subsequent consent to the search was tainted. Accordingly, the court granted defendant's motion to quash his arrest and suppress evidence.
The State argues that the court erred by granting defendant's motion to quash his arrest and suppress evidence. The State does not dispute the trial court's finding that the initial contact was proper on a community caretaking basis. Instead, the State contends that the circumstances were sufficient to transform the encounter into a Terry stop (see Terry v. Ohio, 392 U.S. 1, 22, 20 L. Ed. 2d 889, 906-07, 88 S. Ct. 1868, 1880 (1968)), and that the search of defendant's bag was reasonable. Defendant counters that the initial encounter was an investigative stop rather than a function of community caretaking, and that Officer Row did not have a reasonable, articulable suspicion that defendant had committed or was about to commit a crime.
When the facts are not in dispute, as in this case, our review of a trial court's determination on a motion to suppress evidence is de novo. People v. Avant, 331 Ill. App. 3d 144, 149 (2001). Theoretically, there are three tiers of lawful police-citizen encounters: (1) an arrest supported by probable cause; (2) a Terry stop or brief seizure of a person that must be supported by a reasonable and articulable suspicion of criminal activity; and (3) an encounter commonly referred to as the community caretaking or public safety function, which involves no coercion or detention and thus does not constitute a "seizure." People v. Leifker, 307 Ill. App. 3d 25, 28 (1999). Community caretaking is a label that describes consensual police-citizen encounters that typically involve the safety of the public. People v. Harris, 207 Ill. 2d 515, 522 (2003). An encounter is a function of community caretaking when an officer initiates it to check on an individual's well-being, without initial thought of criminal activity. People v. Simac, 321 Ill. App. 3d 1001, 1004 (2001). This function is totally divorced from the detection, investigation, or acquisition of evidence of a violation of a criminal statute. City of Highland Park v. Lee, 291 Ill. App. 3d 48, 52 (1997).
In the present case, we are not convinced that Officer Row's initial contact with defendant fell within the community caretaking function. Rather, Officer Row's testimony revealed that the purpose behind the encounter was investigative. Four thefts and two incidents of vandalism were reported the week before the encounter. According to Officer Row, seeing defendant push a bicycle while in dark pants at 11:15 p.m. "just seemed strange" and was "not a normal occurrence in that neighborhood." Officer Row subsequently initiated the encounter "to make sure that there was [sic] nothing else going to happen."
When an officer questions an individual to check on his well-being, without initial thought of criminal activity, he is within the purview of community caretaking. However, Officer Row did not question defendant without initial suspicion of criminal activity. On the contrary, he questioned defendant to investigate his possible involvement in recent instances of theft and vandalism in the neighborhood. See People v. Dent, 343 Ill. App. 3d 567, 578 (2003) (police are not performing a community caretaking function when they are specifically investigating reports of criminal activity). Because Officer Row's purpose in questioning defendant was not totally divorced from detection, investigation, or acquisition of evidence, we cannot say that he was performing community caretaking.
The danger of blurring the distinction between community caretaking and an investigative detention becomes apparent when an officer claims to be engaging in community caretaking but is, in reality, investigating reports of criminal activity. For this reason, we decline to extend the label of community caretaking to the facts of this case. To hold otherwise would grant police officers the authority to, in fact, "investigate" criminal activity under the guise of community caretaking. Practically speaking, officers would be encouraged to originate contact under this pretense with the hope that the encounter would escalate into a valid Terry stop. In effect, this is an abuse of the community caretaking function. The requirement of reasonable suspicion under Terry is diluted if officers are permitted to "ease into" a Terry stop by first engaging in community caretaking. That said, Officer Row's initial contact with defendant did not implicate the fourth amendment because consensual police questioning, even when it is investigative, does not constitute a seizure. See People v. Smith, 331 Ill. App. 3d 1049, 1052 (2002). A person is seized ...