Rehearing denied October 3, 2013
Police who initiated a valid Terry stop and saw a large bullet in plain view in the car were justified, out of concern for their own safety, in ordering defendant out and searching his person and the vehicle; and there was no requirement of probable cause or an inquiry into whether defendant had a FOID card—suppression reversed
Appeal from the Appellate Court for the First District; heard in that court Review on appeal from the Circuit Court of Cook County, the Hon. Douglas J. Simpson, Judge, presiding.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, Veronica Calderon Malavia and Anne L. Magats, Assistant State's Attorneys, of counsel), for the People.
Algis F. Baliunas, of Mokena, for appellee.
Justices Garman, Karmeier, and Theis concurred in the judgment and opinion.
KILBRIDE CHIEF JUSTICE
¶ 1 The issue in this appeal is whether police officers violated defendant's constitutional right to be free from unreasonable searches and seizures (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6). The contested conduct arose during an incident that both parties agree was initiated as a proper Terry stop. After police officers observed a bullet in plain view in the center console of the vehicle, the officers ordered defendant and his two passengers out of the vehicle, handcuffed and searched them, and then, after recovering additional bullets from defendant's person and the vehicle, recovered a handgun from the passenger side floor of the vehicle.
¶ 2 The circuit court of Cook County granted defendant's motion to suppress all of the recovered evidence. A majority of the appellate court affirmed, concluding that the challenged police conduct subjected defendant to an unlawful search without probable cause because the bullet did not establish evidence of a crime. 407 Ill.App.3d 294, 310. For the reasons that follow, we reverse the judgments of the appellate and circuit courts.
¶ 3 I. BACKGROUND
¶ 4 Defendant was charged with multiple weapons charges after police officers recovered bullets and a handgun from his person and vehicle. Defendant filed a pretrial motion to quash arrest and suppress evidence, arguing that the underlying search was unreasonable and that he was subjected to an unlawful arrest without probable cause.
¶ 5 At the suppression hearing, Homewood police officer William Alcott testified that on the evening of June 29, 2006, he was working the tactical unit for a suburban task force in an unmarked squad car with his partner, Detective Johnson. The officers wore plain clothes, a police badge, a name tag, and a vest with the word "police" across the back.
¶ 6 At approximately 8:45 p.m., Officer Alcott arrived at a motel the officers routinely patrolled to check for "parties and stuff of that nature" involving minors. The officers, however, had not received any calls of suspicious activity or reports of criminal activity that day. When the officers arrived at the motel, defendant's vehicle was parked in the south entrance to the motel's parking lot, between 50 and 100 feet from the motel's main building entrance. Because of the location of defendant's vehicle, Officer Alcott drove around the motel building to the west parking lot entrance and stopped, observing defendant's vehicle for two or three minutes. During this time, defendant's vehicle remained in the entrance.
¶ 7 Officer Alcott parked his squad car in the parking lot, but he did not block defendant's vehicle. The officers then exited their squad car and walked toward defendant's vehicle to ask defendant why he was parked in the entrance. During their approach, the officers did not draw their service weapons. Officer Alcott described the lighting conditions at the time as "dusk" but "not dark." Defendant sat in the driver's seat, with the car's engine running, and there was also a passenger in his car. As the officers approached defendant's vehicle, a third individual exited the motel, walked to defendant's vehicle, and got inside the rear passenger compartment.
¶ 8 Officer Alcott approached the driver side, and Detective Johnson went to the passenger side. When Officer Alcott asked defendant why he was blocking the entrance, defendant replied that he was picking someone up from the motel. During this conversation, Detective Johnson motioned to Officer Alcott and advised him of a plastic bag in the center console. Officer Alcott shined his flashlight into the center console and saw in plain view a plastic bag with a bullet "sticking up" inside. Officer Alcott described the bullet as "the largest pistol round" he had ever seen, approximately three inches long. Officer Alcott further described the bullet as being as large as a rifle round.
¶ 9 After Officer Alcott saw the bullet, he ordered defendant and his two passengers out of the car. The officers handcuffed defendant and the two passengers near the front of the vehicle. Officer Alcott recovered the plastic bag from the center console, and discovered that it contained a total of five live rounds of .454-caliber ammunition.
¶ 10 After recovering the five bullets from the bag in defendant's center console, the officers conducted a pat-down search of defendant and his two occupants. Officer Alcott recovered a single bullet from defendant's front pants pocket that matched the five .454-caliber bullets recovered from the plastic bag in the center console. Based on the recovery of the five bullets from the center console and one bullet from defendant's pocket, Officer Alcott believed that there might be a gun inside defendant's vehicle. Ultimately, Detective Johnson found a .454 revolver under a floor mat on the front passenger side. Subsequently, defendant and his two passengers were transported to the police station.
¶ 11 Following Officer Alcott's testimony, and prior to ruling on defendant's motion to suppress, the circuit court heard arguments from the parties on two separate days. Defendant argued that the police officers lacked probable cause for any of their conduct because possession of a bullet is not per se illegal and the police officers failed to ask defendant whether he possessed a valid Firearm Owner's Identification (FOID) card. Consequently, because the officers did not know whether defendant possessed the bullet legally, defendant asserted that the officers subjected him to an unlawful arrest without probable cause when they ordered him out of the car and handcuffed him. Defendant noted that no criminal activity had been reported in the area at the time of the incident and no evidence suggested that he was engaged in criminal activity.
¶ 12 In response, the State argued that the officers did not subject defendant to an illegal seizure or arrest. Instead, the officers acted appropriately when they approached defendant's vehicle to ascertain why it was blocking the motel's parking lot entrance. When the officers saw the bullet in the center console, they were entitled to order defendant and his two passengers out of the car for their own safety. Similarly, when they recovered the multiple bullets from the center console and the bullet from defendant's pants pocket, the officers properly searched the car and recovered the handgun.
¶ 13 After hearing arguments, the trial court denied defendant's motion to suppress the bullets, but granted his motion to suppress the gun. The court found that, pursuant to Terry, the officers properly recovered the bullets, including the bullet recovered from defendant's pants when he was handcuffed. The court further found, however, that the recovery of the gun was illegal because the officers did not have probable cause to believe that defendant was committing a crime when the possession of a bullet is not per se illegal and the officers failed to asked defendant if he possessed a valid FOID card. The court explained that it "presum[ed] the State's theory is search incident to arrest that allowed them to conduct" the search of the vehicle.
¶ 14 Defendant moved orally to reconsider the trial court's ruling admitting the bullets. Defendant again asserted that possession of a bullet is not per se illegal and, therefore, the officers in this case arrested him unlawfully when they ordered him out of the car and handcuffed him based solely on the plain-view bullet without first finding out if defendant possessed a valid FOID card or had previously been convicted of a felony. The State responded that the trial court's ruling admitting the bullets recovered from the center console and defendant's person was proper under Terry.
¶ 15 Following arguments on defendant's oral motion to reconsider, the circuit court granted his motion to reconsider and ordered that all the bullets be suppressed because the officers failed to ask defendant whether he possessed a valid FOID card before they ordered him out of the car and searched him and the vehicle. Thus, the court ordered that all of the recovered evidence, the bullets and the gun, be suppressed.
¶ 16 In addition, the circuit court continued the State's written motion to reconsider its ruling suppressing the gun. In pertinent part, the State argued that the officers' discovery of the bullets created justifiable concern for their safety because the bullets could reasonably indicate the presence of a gun, citing Michigan v. Long, 463 U.S. 1032 (1983). Ultimately, however, the State filed a certificate of substantial impairment and notice of appeal under Supreme Court Rule 604(a)(1) (eff. July 1, 2006) before the circuit court could rule on the State's motion to reconsider.
¶ 17 On appeal, a majority of the appellate court affirmed the circuit court's order suppressing all of the evidence. Before reaching the merits of the suppression order, the majority construed the State's position on appeal as being that the officers had probable cause to believe a crime had been committed when they saw the bullet in plain view in the center console of defendant's car, justifying a search incident to his arrest. Thus, the majority limited its analysis to whether the State had probable cause. 407 Ill.App.3d at 297-300.
¶ 18 In a footnote, however, the majority acknowledged that the State's citation to Long in the motion to reconsider filed in the circuit court might indicate that the State intended to argue that the search was justified based on reasonable suspicion under Terry, rather than on probable cause. Nonetheless, the majority found that the State forfeited its Terry argument on reasonable suspicion when it filed a notice of appeal before the circuit court could rule on the State's motion to reconsider. The majority reasoned that a party is prohibited from advancing "a new theory" on appeal in an effort to overturn an adverse decision. 407 Ill.App.3d at 297 n.3.
¶ 19 On the merits, the majority affirmed the suppression of all the bullets and the handgun based on a lack of probable cause. Specifically, the majority explained its conclusion that probable cause was lacking as follows:
"While the officers engaged in a lawful Terry stop, the recovery of the bullets did not provide evidence of a crime in the absence of evidence that the defendant did not possess a valid FOID card or was a convicted felon. The officers improperly escalated the investigative stop into a full-blown arrest of the defendant and then engaged in the search of the vehicle as incident to the arrest." 407 Ill.App.3d at 310.
¶ 20 The dissenting justice disagreed with the majority's decision to limit the State's position to probable cause for a search incident to arrest, noting that the State raised the Terry-stop rationale during the hearing on defendant's motion to suppress in the circuit court. Thus, the dissenting justice argued that the case should be reviewed as a brief investigative Terry stop.
¶ 21 Specifically, the dissenting justice believed the case was governed by the United States Supreme Court's holding in Long, permitting police officers to search the passenger compartment of a car when no arrest has been made if they reasonably believed that the suspect is dangerous and may gain immediate control of weapons. Relying on Long, the dissenting justice concluded that "the arresting officers, upon observing the plain-view bullet in the car, had reasonable suspicion to stop defendant and conduct protective searches for weapons on defendant's person and in the passenger compartment of his car. Then, the revolver found under the front-passenger floor mat gave the police probable cause to arrest defendant." Accordingly, the dissenting justice argued that the circuit court's suppression order should be reversed. 407 Ill.App.3d at 311-15 (Lampkin, J., dissenting).
¶ 22 This court allowed the State's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).
¶ 23 II. ANALYSIS
¶ 24 On appeal, the State challenges the appellate court majority's affirmance of the circuit court's order suppressing the recovered bullets and handgun. This court reviews a trial court's order suppressing evidence using a two-part standard. People v. Oliver, 236 Ill.2d 448, 454 (2010). We afford great deference to the trial court's factual findings, and will reverse those findings only if they are against the manifest weight of the evidence. Oliver, 236 Ill.2d at 454. We review de novo, however, the trial court's ultimate legal ruling on whether suppression is warranted. Oliver, 236 Ill.2d at 454.
¶ 25 As a preliminary matter, we address the appellate court majority's decision not to consider the State's argument that the police officers' conduct here constituted a lawful Terry stop based on reasonable suspicion. The majority believed the State was improperly attempting to assert a "new theory" on appeal, and limited its consideration solely to whether the officers' conduct was proper as a search incident to arrest. Essentially, the majority concluded that the State forfeited any argument based on Terry.
¶ 26 The State maintains that the majority erroneously concluded that it forfeited a Terry argument because, as the dissenting justice noted, the record demonstrates that the State argued Terry, including an argument that the searches were justified for officer safety, at the hearings on defendant's motion to suppress. Defendant does not respond to the State's forfeiture argument.
¶ 27 Generally, to preserve an issue for appellate review, a party must raise the issue before the trial court and in a posttrial motion. People v. Enoch, 122 Ill.2d 176, 186 (1988). Here, the record demonstrates that the State consistently argued in the pretrial suppression hearings before the circuit court that the officers' conduct was reasonable and proper under Terry. Notably, the circuit court itself found some of the officers' conduct proper under Terry. Moreover, in the State's posttrial motion to reconsider, the State relied on Long, a decision applying Terry, and argued that the officers' conduct was proper because they were concerned for their safety and reasonably suspected a gun was present after recovering the bullets. Based on this record, we necessarily reject the appellate court majority's conclusion that the State forfeited any argument based on Terry.
¶ 28 We now turn to the parties' substantive arguments on whether the officers' conduct here violated defendant's constitutional right to be free from unreasonable searches and seizures. The State argues that, under the totality of the facts and circumstances, what began as a neutral encounter escalated when the officers observed the bullet in plain view in the center console of defendant's vehicle. Reasonably suspecting that defendant or his passengers were armed and presently dangerous and that criminal activity may be afoot, the officers were permitted under Terry and Long to detain defendant and his passengers and perform protective searches of their persons and areas of the car that would provide immediate access to a weapon. Consequently, the State argues that the circuit court's suppression order should be reversed.
¶ 29 Defendant responds that Terry does not justify the officers' conduct because the circumstances were "absolutely benign" and possession of a bullet is not per se illegal. Thus, defendant argues that Officer Alcott and Detective Johnson could not reasonably believe a crime was being committed, particularly when they failed to ask him whether he possessed a valid FOID card. Defendant also notes that at the time of the incident it was dusk, but not yet dark, no suspicious or criminal activity had been reported in the area, and, besides the police officers' vehicle, no other vehicle was inconvenienced by defendant's vehicle parked in the motel parking lot entrance.
¶ 30 Defendant does not challenge the officers' initial approach and interaction with defendant at his vehicle. Instead, defendant asserts that "[t]he unlawful seizure occurred after Officer Alcott brought the defendant and the other individuals to the front of the vehicle, handcuffed them[, ] then recovered the bullets from the console and searched the defendant and recovered another bullet." Defendant further asserts that handcuffing him and his two passengers "may very well have turned this benign encounter into an arrest, therefore requiring probable cause to search the vehicle." Thus, defendant argues that the lower courts properly suppressed all of the recovered evidence because the officers' conduct was not justified by probable cause.
¶ 31 Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. This court has explained that "[t]he 'essential purpose' of the fourth amendment is to impose a standard of reasonableness upon the exercise of discretion by law enforcement officers to safeguard the privacy and security of individuals against arbitrary invasions." People v. McDonough, 239 Ill.2d 260, 266 (2010) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)).
¶ 32 As the parties' respective arguments demonstrate, central to this appeal is the United States Supreme Court's landmark decision in Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Court held that a brief investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth amendment when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous. Terry, 392 U.S. at 30; see also People v. Close, 238 Ill.2d 497, 505-06 (2010) (recognizing that this court follows Terry and adheres to its standards when reviewing the propriety of investigatory stops under the Illinois Constitution).
¶ 33 Explaining its decision to approve of investigatory stops based solely on reasonable suspicion, the Terry court noted that it carefully had to balance the need of law enforcement officials to have some flexibility when investigating potential criminal activity with an individual citizen's fourth amendment rights to be protected against unreasonable police interference. Terry, 392 U.S. at 10-12. Reviewing the government interests at stake, the Court observed that the government has a general interest in effective crime prevention and detection. This general interest justifies "the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry, 392 U.S. at 22.
¶ 34 The Court further explained, however, that the "crux" of Terry was another, "more immediate" government interest. Terry, 392 U.S. at 23. Specifically, the interest in allowing a police officer to "tak[e] steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Terry, 392 U.S. at 23. Because of the indisputable threat posed to law enforcement officials during the course of investigatory stops, the Court concluded:
"[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine ...