Appeal from Circuit Court of Livingston County No. 10CF18 Honorable Jennifer H. Bauknecht, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
JUSTICE McCULLOUGH delivered the judgment of the court, with opinion. Presiding Justice Knecht concurred in the judgment and opinion.
Justice Pope dissented, with opinion.
In April 2010, following a hearing, the trial court granted defendant Daniel L. Leach's motion to suppress evidence in his prosecution for possession of cannabis. The State brings this interlocutory appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006), arguing the court erred in granting defendant's motion to suppress as defendant validly consented to the search resulting in the seizure of the evidence. We agree with the State and reverse.
The evidence at defendant's suppression hearing consisted of testimony by Livingston County sheriff's police officer Brad DeMoss. DeMoss testified he and another officer, named Fitzpatrick, conducted an investigatory stop of defendant on January 14, 2010. On that date, late at night, the officers were patrolling a residential area in an unmarked squad car when they saw defendant walking. The officers stopped defendant, suspecting he was violating curfew by being out after 11 p.m. and under age 17.
Defendant was initially approached by DeMoss alone. DeMoss asked defendant for his name and identification, which showed defendant was 19 years old. Fitzpatrick ran defendant's identification card for outstanding warrants and found none. When asked at the suppression hearing whether defendant's identification card was returned to him following this warrant check, DeMoss testified, "I believe so." Fitzpatrick then asked defendant whether he had ever been arrested. Defendant explained he had been arrested once in connection with a drug raid that occurred at his mother's house. At that point, DeMoss asked defendant "if he would mind if" DeMoss searched him. According to DeMoss, defendant responded, "[N]o, go ahead." The ensuing search resulted in DeMoss's discovery of cannabis in defendant's possession.
On appeal, the State challenges the trial court's judgment granting defendant's motion to suppress. In general, in an appeal from a trial court's suppression ruling, we employ a two-part standard of review. People v. Oliver, 236 Ill. 2d 448, 454, 925 N.E.2d 1107, 1110 (2010). "The trial court's factual findings are entitled to great deference, and we will reverse them only if they are against the manifest weight of the evidence." Id. "The trial court's ultimate legal ruling on whether suppression is warranted, however, is reviewed de novo." Id. De novo review is also appropriate "where the facts and witness credibility are not in dispute." People v. Roberts, 374 Ill. App. 3d 490, 495, 872 N.E.2d 382, 387 (2007).
The State claims the search leading to defendant's arrest was conducted pursuant to his consent. A defendant's voluntary consent to be searched is a recognized substitute for a warrant issued upon probable cause, which is ordinarily required of a valid search. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Where the State claims a search is supported by a defendant's consent, the State has the burden of showing the consent was voluntarily given. Id. at 222.
"[A]n officer is always free to request permission to search." People v. Brownlee, 186 Ill. 2d 501, 515, 713 N.E.2d 556, 563 (1999). A defendant's consent given while or after he is unlawfully seized, however, may be found to be tainted by the seizure's illegality. Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality op.). Once a seizure is concluded and the defendant is free to discontinue his encounter with the police, a defendant's voluntary consent to be searched may be obtained unless he is unlawfully seized anew. People v. Cosby, 231 Ill. 2d 262, 276, 898 N.E.2d 603, 612 (2008) ("The relevant question [in these consolidated cases] is whether the officers' actions after the initial traffic stops had concluded constituted a second seizure of either defendant."). This is true because, absent an unlawful seizure, officers may generally request an individual's consent to a search even without a basis for individualized suspicion. Florida v. Bostick, 501 U.S. 429, 434-35 (1991); see also People v. Ramsey, 362 Ill. App. 3d 610, 621, 839 N.E.2d 1093, 1103 (2005) ("[A]n officer is free to request permission to search the car after the conclusion of [a] traffic stop so long as the officer does not unlawfully detain the car or its occupants prior to requesting permission.").
A person is seized when, by means of physical force or a show of authority, the person's freedom of movement is restrained. United States v. Mendenhall, 446 U.S. 544, 553 (1980) (opinion of Stewart, J., joined by Rehnquist, J.). A seizure occurs "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554 (opinion of Stewart, J., joined by Rehnquist, J.); see also People v. Gherna, 203 Ill. 2d 165, 178, 784 N.E.2d 799, 807 (2003) (clarifying this analysis presumes "a reasonable innocent person under identical circumstances").
Courts considering whether a seizure has occurred test for the presence of the "Mendenhall factors." See People v. Murray, 137 Ill. 2d 382, 390, 560 N.E.2d 309, 313 (1990) (adopting the Mendenhall factors), overruled in part on other grounds by People v. Luedemann, 222 Ill. 2d 530, 548, 857 N.E.2d 187, 199 (2006). The Mendenall factors are "(1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Luedemann, 222 Ill. 2d at 553, 857 N.E.2d at 201.
While the Mendenhall factors are not exhaustive and "a seizure can be found on the basis of other coercive police behavior that is similar to the Mendenhall factors" (id. at 557, 857 N.E.2d at 203), "[i]n the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person" (emphasis and internal quotation marks omitted) (id. at 553, 857 N.E.2d at 201). "From the very minute the Mendenhall factors were created, courts have used their absence to determine that seizures had not occurred." Id. at 554, 857 N.E.2d at 202; see also id. at 553-54, 857 N.E.2d at 201-02 (collecting cases that found no seizure had occurred in the absence of the Mendenhall factors).
In this case, the parties initially disagree whether the investigatory stop of defendant for a possible curfew violation had ended or been unlawfully prolonged when DeMoss requested defendant's consent to be searched. We note the parties agree the stop was valid and the officers were ...