Appeal from the Circuit Court of Winnebago County. No. 11-CM-3696. Honorable John S. Lowry, Judge, Presiding.
Defendant's conviction for resisting a peace officer was reversed on the ground that the officer was not engaged in an authorized act at the time and could not pat him down for weapons while he was in the course of a community-caretaking encounter, since the officer observed defendant walking in the paved portion of a highway median, defendant did not appear to be in distress, he said he was going to McDonalds, but when he began to put his hand in his pocket, the officer thought he was reaching for a weapon and then grabbed defendant and advised him he wanted to pat him down for weapons and ultimately tased and handcuffed him, but the innocuous act of attempting to put his hand in his pocket, standing alone, did not give rise to a reasonable suspicion of criminal activity on defendant's part or the presence of a weapon, regardless of the fact that defendant's pockets were bulging, especially when the officer was not investigating any crime or had a reasonable suspicion that defendant had a weapon.
Michael J. Pelletier, Thomas A. Lilien, and Sherry R. Silvern, all of State Appellate Defender's Office, of Elgin, for appellant.
Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Diane L. Campbell, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.
[¶1] Following a bench trial, defendant, Anthony Slaymaker, was found guilty of resisting a peace officer (720 ILCS 5/31-1(a) (West 2010)). He appeals, contending that he could not be convicted of resisting, because the officer was not engaged in an authorized act at the time. Specifically, he argues that the officer was not authorized to pat him down for weapons in the course of a community-caretaking encounter. We agree and reverse.
[¶2] An information charged defendant with resisting an authorized act of Officer Robert Lewis, specifically, defendant's arrest. Before trial, defendant moved to quash his arrest and suppress evidence. The matter proceeded to a simultaneous hearing on the motion and bench trial. Lewis was the only witness.
[¶3] Lewis testified that he was a Roscoe police officer. He was on duty on August 2, 2011, driving north on Highway 251. It was very hot and starting to get dark when he saw defendant walking in the paved portion of the highway median. Lewis thought this unusual, as there was no " pedestrian access," in other words, no sidewalk or other means of access to the median. Lewis continued north on 251 looking for a disabled vehicle. Finding none, he turned around and returned to where defendant was walking. As he pulled over to the shoulder, he activated his emergency lights to alert oncoming traffic.
[¶4] Defendant, who was talking on a cell phone, approached Lewis as he was getting out of the squad car. They met a few feet into the grassy area of the median. In response to Lewis's question, defendant said that he was going to McDonald's, which was a little farther south on Highway 251. Lewis did not ask defendant if he needed assistance. Defendant did not appear to be in medical distress; he was not panting or sweating profusely.
[¶5] After defendant said that he was going to McDonald's, he started to put his hand in his right pocket and began to move away from Lewis, so that Lewis could not see for what he was reaching. Lewis grabbed toward defendant's hands to prevent him from retrieving what was in his pocket, ...