People v. Billingslea
Annotate this Case
THIRD DIVISION
September 30, 1997
No. 1-94-2555
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
JOHN BILLINGSLEA,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 94 MC1 193892
Honorable
James Linn,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
John Billingslea was convicted after a bench trial of unlawful
use of a weapon, failure to possess a firearm owner's
identification card and failure to produce evidence of firearm
registration. He was sentenced to one year of probation. He
argues on appeal that the trial court erred in denying his motion
to quash arrest and suppress evidence. We affirm.
At a hearing on defendant's motion to quash arrest and
suppress evidence, Chicago police officer Alvin Campbell testified
that on January 8, 1994, at 11:40 p.m., he and his partner, Officer
Merritt, were on routine patrol in a marked police car. As they
approached 10659 South Champaign Street, Campbell saw defendant and
two other men talking to the occupants of a parked car. Defendant
was on the passenger side of the car and the two others were
standing on the driver's side. The officers stopped their car
because they were in a "high narcotics area" and defendant "had
just left the car [and] possibly *** could have had narcotics."
Campbell did not have a warrant for defendant's arrest, nor did he
witness transactions between defendant's group and the occupants of
the car.
Campbell testified that as he and Merritt got out of their
squad car, the other vehicle drove away. Defendant and the other
two men then approached the officers. Merritt asked defendant's
companions, "Why don't you guys come over here[?]" Simultaneously,
Campbell asked defendant to come toward him. Defendant was no more
than 15 feet away when Campbell called to him. As defendant
approached, Campbell observed that defendant was wearing a coat
that was open and his hands were in his pockets. Campbell "saw a
bundle" in defendant's waistband. Campbell told defendant: "keep
[your] hands where I [can] see them."
After taking a couple of steps in Campbell's direction,
defendant turned slightly and took an "evasive step" away from
Campbell. Defendant was then five to six feet away from Campbell.
Campbell moved in front of defendant to block his path. Campbell
explained that he did this to position himself so that he could
catch defendant if he attempted to flee.
As Campbell moved in front of defendant to counter his evasive
step, he twice told defendant to "come here." Instead, defendant
turned his back to the officer, removed an object from his
waistband and threw it to the ground. Defendant then attempted to
kick snow, over the object he had tossed. When Campbell recovered
the object from the snow, he saw that it was a .38-caliber handgun.
While Campbell dealt with defendant, Merritt conducted a search of
defendant's companions, during which she told them to "grab the
car."
The trial court denied defendant's motion to quash arrest and
suppress evidence, reasoning that Campbell's conduct in calling
defendant over to his vehicle did not amount to a "stop" under
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
Further, the trial judge reasoned that when defendant turned from
the officer and threw the gun to the ground, he lost his right to
privacy, as well as standing to contest the seizure of the weapon,
because he had abandoned the weapon and it was in plain view on the
ground. The trial judge did not address whether a seizure occurred
when Campbell moved to block defendant.
Generally, we will not disturb a trial court's ruling on a
motion to suppress unless it is manifestly erroneous. People v.
James, 163 Ill. 2d 302, 645 N.E.2d 195 (1994). But where, as here,
neither the facts nor credibility of witnesses is disputed, we may
review the ruling de novo. People v. Dilworth, 169 Ill. 2d 195,
201, 661 N.E.2d 310 (1996).
A law enforcement officer does not violate the fourth
amendment's guarantee against unreasonable search and seizure by
approaching a person and questioning him. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983).
But when a person's freedom of movement is restrained by physical
force or a show of authority, he is seized within the meaning of
the fourth amendment. United States v. Mendenhall, 446 U.S. 544,
553-54, 64 L. Ed. 2d 497, 509 100 S. Ct. 1870, 1877 (1980). A show
of authority amounts to a seizure when a reasonable person in the
same circumstances would not feel free to "'go about his
business.'" Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991), quoting California v.
Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698, 111 S. Ct. 1547, 1552 (1991).
Defendant does not dispute that he voluntarily walked toward
Campbell. At that point, the encounter was consensual and he was
not seized. He argues that the confrontation escalated to a
seizure when Campbell, without sufficient articulable facts to
justify a Terry stop, told defendant to "come here" as he blocked
defendant's path in response to defendant's evasive step.
The State argues that defendant was not seized until after he
threw the weapon down and, at that point, defendant had abandoned
the gun. The State argues that nothing Campbell did before
defendant threw the gun down "could be construed as a show or
threat of force, and the officer did not confine or restrain
defendant in any way."
The State relies on People v. Jackson, 149 Ill. App. 3d 156,
500 N.E.2d 537 (1986), and People v. Tilden, 70 Ill. App. 3d 859,
388 N.E.2d 1046 (1979), to support its contention that there was no
seizure of defendant before he tossed the gun. In Jackson, the
defendant voluntarily followed an officer to his car after the
officer said, "I would like to talk to you." Jackson, 149 Ill.
App. 3d at 157. The officer said he intended to ask the defendant
the whereabouts of another suspect. As they walked, the officer
saw the defendant put a clear plastic bag containing white powder
in his mouth. The court held that the defendant was not seized
because there was no indication that the officer intended to arrest
or restrain the defendant. Jackson, 149 Ill. App. 3d at 158.
Similarly, in Tilden, officers were responding to a report
about a suspicious person when they saw the defendant in a nearby
alley. As one of the officers approached the defendant, he began
to walk away. The officer asked him to return and produce
identification. As the defendant searched his pockets, the officer
saw a gun in the defendant's waistband. The court held that the
defendant had not been seized because the defendant's freedom to
walk away had not been hindered by force or threat of force.
Tilden, 70 Ill. App. 3d at 862.
We disagree with the State's assertion that Campbell's action
lacked a show of force before defendant threw the gun to the
ground. Unlike the officers in Jackson and Tilden, the officer
here did more than ask for voluntary cooperation. We believe
Campbell's action in stepping to block defendant while telling him
to "come here" was a show of force indicating Campbell's intent to
restrain defendant. Campbell's testimony confirmed that he
intended to block defendant if he tried to flee. But that is not
the end of our analysis.
While an officer's show of authority may amount to a seizure
(see Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at
2386), we have held that a defendant is not seized when he ignores
a show of authority. See People v. Ramirez, 244 Ill. App. 3d 136,
145, 613 N.E.2d 1116 (1993), citing California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991). In People v.
Ramirez, the defendant fled from officers who had ordered him to
halt. As he fled, he dropped a brown paper bag that contained
cocaine. We held that the defendant was not seized within the
meaning of the fourth amendment because there had been neither the
application of physical force with lawful authority nor submission
to the assertion of authority. Ramirez, 244 Ill. App. 3d at 145.
We found that the bag had been abandoned, and we held that
defendant's motion to exclude the evidence was properly denied.
This case is similar to Ramirez. While Campbell asserted
authority when he blocked defendant, ordered him to "come here,"
and ordered him to keep his hands where he could see them,
defendant chose not to submit. Instead, he turned away, reached
for an object in his waistband, and threw it to the ground. At
that moment, defendant was not detained by physical force and did
not submit to the assertion of authority. Campbell's recovery of
the gun did not result from a search or seizure of defendant.
The record further establishes that Campbell had sufficient
articulable facts to justify a Terry stop before he tried to detain
defendant. An officer may lawfully detain a person to conduct a
brief and limited investigation of possible criminal activity where
there are articulable facts and rational inferences that lead the
officer to a reasonable suspicion of criminal activity. Terry v.
Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); People
v. Zamora, 203 Ill. App. 3d 102, 106-07, 560 N.E.2d 1053 (1990).
When Campbell originally saw defendant, Campbell knew that
defendant was near an occupied car in a "high narcotics area." If
this was all Campbell knew before he tried to detain defendant, his
"hunch" would not have justified his intrusion. See People v.
Hunt, 188 Ill. App. 3d 359, 362, 544 N.E.2d 118 (1989) (knowledge
of past criminal activity in an area alone did not justify stop).
But Campbell made several other relevant observations before
attempting to stop defendant.
Campbell testified that as defendant began to walk toward the
officers, he saw that defendant was wearing an open coat and that
there was "a bundle" or "bulge" at his waistband. Defendant also
had his hands in his pockets. Campbell then ordered defendant to
keep his hands where Campbell could see them. Defendant altered
his course and took an evasive step away. These articulable facts,
coupled with Campbell's knowledge that he was in a high crime area,
gave him reason to block defendant.
An investigatory stop is proper when the articulable facts,
together with natural inferences, make the intrusion reasonable.
People v. Scott, 148 Ill. 2d 479, 503, 594 N.E.2d 217 (1992),
quoting People v. Smithers, 83 Ill. 2d 430, 436 (1980); People v.
McGowan, 69 Ill. 2d 73, 78 (1977). We believe a reasonable officer
in Campbell's position would be alerted to the possibility of
criminal activity and that the better part of wisdom compelled
Campbell's minimal intrusion of blocking defendant's path to detain
defendant long enough to investigate.
Affirmed.
COUSINS, P.J., concurs.
JUSTICE LEAVITT, dissenting:
I agree with the majority that Officer Campbell's actions in
this case amounted to a show of force, contrary to the State's
position. However, I believe defendant's response to Campbell's
assertion of authority constituted a submission to that authority
and that defendant was thereby seized within the meaning of the
fourth amendment. I also disagree with the majority's finding
that, prior to the alleged seizure, Campbell had sufficient grounds
to justify a Terry stop of defendant. Thus, I respectfully
dissent.
As the majority correctly points out, "a defendant is not
seized when he ignores a show of authority." Slip op. at 5. See
People v. Perez, 249 Ill. App. 3d 912, 916, 619 N.E.2d 887 (1993)
(activation of police lights on squad car did not constitute a
seizure, as seizure did not occur until defendants yielded to
officer in pursuit); Ramirez, 244 Ill. App. 3d at 145. The seizure
of an individual "requires either physical force *** or, where that
is absent, submission to the assertion of authority." (Emphasis in
original.) Hodari D., 499 U.S. at 626, 113 L. Ed. 2d at 697, 111 S. Ct. at 1551. The question then becomes, in the absence of any
physical force applied to defendant, whether he submitted to
Officer Campbell's assertion of authority. I would find that he
did.
The determinative testimony by Officer Campbell, elicited on
cross-examination, was as follows:
Q. When you said in your arrest report, when you
asked the defendant to come towards you, he refused, is
that correct?
A. Correct.
Q. Explain to the court what you mean - what period
of time are you referring to that he refused to come
towards you?
A. Those few seconds I said 'Come over here' at
that time Mr. Billingslea originally took an evasive
step. I walked to block his path, and said, 'come here'.
I repeated it again and at that time, he turned around
and turned his back and threw the object."
I disagree with the majority's assertion that Ramirez controls
the present case. Based on the officer's own account, defendant
clearly did not flee when confronted with Campbell's show of
authority. That fact alone distinguishes the present case from
Ramirez, as well as the United States Supreme Court's decision in
Hodari D., relied upon by this court in Ramirez. In both those
cases, the defendants fled when first confronted by police
officers.
In contrast to the immediate and unhesitating flight of the
defendants in Ramirez and Hodari D., defendant in this case
remained in the place where he was instructed to stop and was
subsequently restrained by Officer Campbell. Defendant was
approximately 15 feet from Campbell when Campbell asked him to
approach him. Defendant continued towards Campbell, in obeyance of
his order, until he was in very close proximity (five to six feet)
of the officer. At this point, defendant--arguably "seized"
already--decided to exercise his right to walk away. In response,
the officer blocked defendant's path, ordering him to "come here,
come here." He testified that he did so to stop the defendant were
he to run. Physical contact is not required to effectuate a
seizure. Hodari D., 499 U.S. at 626-27, 113 L. Ed. 2d at 697, 111 S. Ct. at 1551. See also Kernats v. O'Sullivan, 35 F.3d 1171, 1180
(7th Cir. 1994) (holding that a "crucial element" of a seizure is
the "significant, present disruption of the targeted person's
freedom of movement" (emphasis omitted)). A refusal to flee or
otherwise escape is to be encouraged. See Hodari D., 499 U.S. at
627, 113 L. Ed. 2d at 697, 111 S. Ct. at 1551 (presuming "[o]nly a
few [police orders to stop] *** will be without adequate basis").
Under these circumstances, I would find that defendant's freedom of
movement was sufficiently restrained such that he was "seized"
within the meaning of the fourth amendment. See United States v.
Morgan, 936 F.2d 1561, 1567 (10th Cir. 1991) (momentary yielding to
show of authority sufficient to constitute seizure); Johnson v.
Grob, 928 F. Supp. 889, 898 (W.D. Mo. 1996) (same). But see United
States v. Lender, 985 F.2d 151, 154-55 (4th Cir. 1993); United
States v. Holloway, 962 F.2d 451, 456-58 (5th Cir. 1992).
It is also clear that defendant was not acting "'voluntarily
in a spirit of apparent cooperation with the officer's
investigation'" when he submitted to the assertion of authority.
(Emphasis omitted.) See Mendenhall, 446 U.S. at 553, 64 L. Ed. 2d
at 509, 100 S. Ct. at 1877, quoting Sibron v. New York, 392 U.S. 40, 63, 20 L. Ed. 2d 917, 935, 88 S. Ct. 1889, 1903 (1968). A
necessary, but not a sufficient, condition for a seizure is that a
reasonable innocent person in the same circumstances as the
defendant would not, due to the police conduct, feel free to
decline the officer's request or otherwise terminate the encounter.
See Hodari D., 499 U.S. at 628, 113 L. Ed. 2d at 698, 111 S. Ct. at
1551; Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at
2386. Hence, it must be determined whether an individual's
submission to an assertion of authority was the product of police
coercion or, rather, manifested a genuine willingness on the
citizen's part to cooperate with the officer's investigation; the
former case is indicative of a seizure, while in the latter case
the encounter remains consensual. See Mendenhall, 446 U.S. at 553,
64 L. Ed. 2d at 508-09, 100 S. Ct. at 1876-77. Cf. Jackson, 149
Ill. App. 3d at 158 (finding no seizure where detective approached
defendant, who then voluntarily followed detective away from a
group); Tilden, 70 Ill. App. 3d at 863 (finding no seizure where,
pursuant to officer's request, defendant voluntarily approached and
attempted to produce identification).
Relevant to this inquiry are such factors as "the threatening
presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or
the use of language or tone of voice indicating that compliance
with the officer's request might be compelled." Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. In this case
a number of these factors support the conclusion that defendant was
not submitting "in a spirit of apparent cooperation" with Officer
Campbell. Defendant was faced, not with one officer, but two.
Although not brandishing their weapons, both were armed and in
uniform. See United States v. Wood, 981 F.2d 536, 539 (D.C. Cir.
1992) (considering fact that both officers were armed and in full
uniform in finding that a reasonable person in defendant's position
would not have felt free to ignore the officers). The police
conduct in relation to defendant's companions is also relevant.
During Officer Campbell's encounter with defendant, Officer Merritt
was simultaneously conducting a search of defendant's companions,
both of whom had been told to "grab the car." The fact that one's
compatriots are forced to assume a position against the squad car
while being frisked would not lead defendant to believe that he was
free to move about his business.
Nor did Campbell's manner of address in this case indicate to
defendant that he was free to leave. Campbell did not approach
defendant at first but, rather, ordered defendant to come to him
(keeping in mind, again, that in defendant's presence his two
companions were being forced to stop and position themselves
against the squad car). See Mendenhall, 446 U.S. at 553, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877 (considering the fact that the
officers did not summon the respondent to their presence in finding
that no seizure occurred); United States v. Jordan, 958 F.2d 1085,
1087 (D.C. Cir. 1992) ("conversational tones" of officers' speech
suggest no seizure occurred). Perhaps most indicative of the
coercion present was defendant's failed attempt to bring the
encounter to an end. With Campbell five to six feet away,
defendant decided to exercise his right to walk away and took a
step in another direction, only to be confronted again by Campbell,
who then repeated his earlier commands for defendant to come to
him. Campbell testified he took this action so as to stop
defendant were he to run. While the subjective intent of the
officer is relevant only to the extent that the intent has been
conveyed to the person confronted (Michigan v. Chesternut, 486 U.S. 567, 575 n.7, 100 L. Ed. 2d 565, 573 n.7, 108 S. Ct. 1975, 1980 n.7
(1988); Mendenhall, 446 U.S. at 554 n.6, 64 L. Ed. 2d at 509 n.6,
100 S. Ct. at 1877 n.6), defendant in this case was, no doubt, made
fully aware of Campbell's intent to restrain him when the officer
blocked his path. See Tilden, 70 Ill. App. 3d at 863 (where
officer merely asked the defendant to approach and produce
identification, no seizure occurred since record revealed "no
further evidence that defendant's freedom to walk away was in any
fashion overcome by force or threat of force"). In sum, the
totality of the circumstances indicates that this was hardly a
consensual "benign police/citizen encounter." See Jordan, 958 F.2d at 1087.
Other jurisdictions have found lesser restraints on an
individual's freedom of movement sufficient to constitute a seizure
within the meaning of the fourth amendment. See United States v.
Coggins, 986 F.2d 651, 654 (3d Cir. 1993) (where the defendant
asked to leave but was ordered to remain and then sat back down, he
was seized even though he fled soon thereafter); Wood, 981 F.2d at
540-41 (finding the defendant had yielded to police authority and
was thereby seized where the defendant froze and dropped a gun
after being told to "halt right there" by officer); Morgan, 936 F.2d at 1566-67 (finding a seizure where the defendant, having been
commanded to "hold it right there" and urged not to run, paused
momentarily before fleeing); United States v. Wilson, 953 F.2d 116,
122-23 (4th Cir. 1991) (where officers followed the defendant
through the airport and persisted in asking him questions following
his refusal to consent to a search, the defendant was seized
despite his continued unimpeded progress towards his destination,
since such police persistence in the face of an attempt to
terminate an encounter may be the equivalent of physical
restraint).
Finally, I disagree with the majority's conclusion Officer
Campbell had sufficient articulable facts to justify a Terry stop
before any seizure of defendant could have occurred. The State
originally conceded as much, admitting that "[i]f this was a Terry
stop, and, therefore, a seizure of defendant's person before
defendant threw down the weapon, this would have been improper and
the weapon should have been suppressed by the trial court." The
officers in this case simply had insufficient articulable facts to
support an inference that an offense was taking place, had taken
place or was about to take place. The majority points to
Campbell's observation of a "bundle" or "bulge" at defendant's
waistband, but there is no indication in the record that Campbell
had any reason to believe that the "bundle" or "bulge" was a gun or
contraband of any type. The majority also points out that
defendant had his hands in his pockets, which, again, adds little
if anything in support of a Terry stop. As to defendant's "evasive
step," any attempt by a citizen to terminate a consensual encounter
with the police is obviously "evasive" from the officer's
viewpoint. Such an exercise of one's right to walk away, if the
right is not illusory, should not in my view be considered in
assessing the propriety of a Terry stop.
Here we have only the officer's testimony that he and his
partner were suspicious of the defendant and his companions because
they were standing by an occupied car in a "high narcotics area"
and "possibly *** could have had narcotics." This was simply
insufficient, as a matter of law, to justify a stop. A police
officer may not rely on "mere hunch and suspicion" to justify an
intrusion into a citizen's right to move freely in our society.
People v. Moore, 286 Ill. App. 3d 649, 654, 676 N.E.2d 700 (1997);
People v. Hunt, 188 Ill. App. 3d 359, 362, 544 N.E.2d 118 (1989).
I believe that the stop was improper and that the trial judge
should have granted the defendant's motion to suppress. I,
therefore, respectfully dissent.
September 30, 1997
No. 1-94-2555
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
JOHN BILLINGSLEA,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 94 MC1 193892
Honorable
James Linn,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
John Billingslea was convicted after a bench trial of unlawful
use of a weapon, failure to possess a firearm owner's
identification card and failure to produce evidence of firearm
registration. He was sentenced to one year of probation. He
argues on appeal that the trial court erred in denying his motion
to quash arrest and suppress evidence. We affirm.
At a hearing on defendant's motion to quash arrest and
suppress evidence, Chicago police officer Alvin Campbell testified
that on January 8, 1994, at 11:40 p.m., he and his partner, Officer
Merritt, were on routine patrol in a marked police car. As they
approached 10659 South Champaign Street, Campbell saw defendant and
two other men talking to the occupants of a parked car. Defendant
was on the passenger side of the car and the two others were
standing on the driver's side. The officers stopped their car
because they were in a "high narcotics area" and defendant "had
just left the car [and] possibly *** could have had narcotics."
Campbell did not have a warrant for defendant's arrest, nor did he
witness transactions between defendant's group and the occupants of
the car.
Campbell testified that as he and Merritt got out of their
squad car, the other vehicle drove away. Defendant and the other
two men then approached the officers. Merritt asked defendant's
companions, "Why don't you guys come over here[?]" Simultaneously,
Campbell asked defendant to come toward him. Defendant was no more
than 15 feet away when Campbell called to him. As defendant
approached, Campbell observed that defendant was wearing a coat
that was open and his hands were in his pockets. Campbell "saw a
bundle" in defendant's waistband. Campbell told defendant: "keep
[your] hands where I [can] see them."
After taking a couple of steps in Campbell's direction,
defendant turned slightly and took an "evasive step" away from
Campbell. Defendant was then five to six feet away from Campbell.
Campbell moved in front of defendant to block his path. Campbell
explained that he did this to position himself so that he could
catch defendant if he attempted to flee.
As Campbell moved in front of defendant to counter his evasive
step, he twice told defendant to "come here." Instead, defendant
turned his back to the officer, removed an object from his
waistband and threw it to the ground. Defendant then attempted to
kick snow, over the object he had tossed. When Campbell recovered
the object from the snow, he saw that it was a .38-caliber handgun.
While Campbell dealt with defendant, Merritt conducted a search of
defendant's companions, during which she told them to "grab the
car."
The trial court denied defendant's motion to quash arrest and
suppress evidence, reasoning that Campbell's conduct in calling
defendant over to his vehicle did not amount to a "stop" under
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
Further, the trial judge reasoned that when defendant turned from
the officer and threw the gun to the ground, he lost his right to
privacy, as well as standing to contest the seizure of the weapon,
because he had abandoned the weapon and it was in plain view on the
ground. The trial judge did not address whether a seizure occurred
when Campbell moved to block defendant.
Generally, we will not disturb a trial court's ruling on a
motion to suppress unless it is manifestly erroneous. People v.
James, 163 Ill. 2d 302, 645 N.E.2d 195 (1994). But where, as here,
neither the facts nor credibility of witnesses is disputed, we may
review the ruling de novo. People v. Dilworth, 169 Ill. 2d 195,
201, 661 N.E.2d 310 (1996).
A law enforcement officer does not violate the fourth
amendment's guarantee against unreasonable search and seizure by
approaching a person and questioning him. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983).
But when a person's freedom of movement is restrained by physical
force or a show of authority, he is seized within the meaning of
the fourth amendment. United States v. Mendenhall, 446 U.S. 544,
553-54, 64 L. Ed. 2d 497, 509 100 S. Ct. 1870, 1877 (1980). A show
of authority amounts to a seizure when a reasonable person in the
same circumstances would not feel free to "'go about his
business.'" Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991), quoting California v.
Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698, 111 S. Ct. 1547, 1552 (1991).
Defendant does not dispute that he voluntarily walked toward
Campbell. At that point, the encounter was consensual and he was
not seized. He argues that the confrontation escalated to a
seizure when Campbell, without sufficient articulable facts to
justify a Terry stop, told defendant to "come here" as he blocked
defendant's path in response to defendant's evasive step.
The State argues that defendant was not seized until after he
threw the weapon down and, at that point, defendant had abandoned
the gun. The State argues that nothing Campbell did before
defendant threw the gun down "could be construed as a show or
threat of force, and the officer did not confine or restrain
defendant in any way."
The State relies on People v. Jackson, 149 Ill. App. 3d 156,
500 N.E.2d 537 (1986), and People v. Tilden, 70 Ill. App. 3d 859,
388 N.E.2d 1046 (1979), to support its contention that there was no
seizure of defendant before he tossed the gun. In Jackson, the
defendant voluntarily followed an officer to his car after the
officer said, "I would like to talk to you." Jackson, 149 Ill.
App. 3d at 157. The officer said he intended to ask the defendant
the whereabouts of another suspect. As they walked, the officer
saw the defendant put a clear plastic bag containing white powder
in his mouth. The court held that the defendant was not seized
because there was no indication that the officer intended to arrest
or restrain the defendant. Jackson, 149 Ill. App. 3d at 158.
Similarly, in Tilden, officers were responding to a report
about a suspicious person when they saw the defendant in a nearby
alley. As one of the officers approached the defendant, he began
to walk away. The officer asked him to return and produce
identification. As the defendant searched his pockets, the officer
saw a gun in the defendant's waistband. The court held that the
defendant had not been seized because the defendant's freedom to
walk away had not been hindered by force or threat of force.
Tilden, 70 Ill. App. 3d at 862.
We disagree with the State's assertion that Campbell's action
lacked a show of force before defendant threw the gun to the
ground. Unlike the officers in Jackson and Tilden, the officer
here did more than ask for voluntary cooperation. We believe
Campbell's action in stepping to block defendant while telling him
to "come here" was a show of force indicating Campbell's intent to
restrain defendant. Campbell's testimony confirmed that he
intended to block defendant if he tried to flee. But that is not
the end of our analysis.
While an officer's show of authority may amount to a seizure
(see Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at
2386), we have held that a defendant is not seized when he ignores
a show of authority. See People v. Ramirez, 244 Ill. App. 3d 136,
145, 613 N.E.2d 1116 (1993), citing California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991). In People v.
Ramirez, the defendant fled from officers who had ordered him to
halt. As he fled, he dropped a brown paper bag that contained
cocaine. We held that the defendant was not seized within the
meaning of the fourth amendment because there had been neither the
application of physical force with lawful authority nor submission
to the assertion of authority. Ramirez, 244 Ill. App. 3d at 145.
We found that the bag had been abandoned, and we held that
defendant's motion to exclude the evidence was properly denied.
This case is similar to Ramirez. While Campbell asserted
authority when he blocked defendant, ordered him to "come here,"
and ordered him to keep his hands where he could see them,
defendant chose not to submit. Instead, he turned away, reached
for an object in his waistband, and threw it to the ground. At
that moment, defendant was not detained by physical force and did
not submit to the assertion of authority. Campbell's recovery of
the gun did not result from a search or seizure of defendant.
The record further establishes that Campbell had sufficient
articulable facts to justify a Terry stop before he tried to detain
defendant. An officer may lawfully detain a person to conduct a
brief and limited investigation of possible criminal activity where
there are articulable facts and rational inferences that lead the
officer to a reasonable suspicion of criminal activity. Terry v.
Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); People
v. Zamora, 203 Ill. App. 3d 102, 106-07, 560 N.E.2d 1053 (1990).
When Campbell originally saw defendant, Campbell knew that
defendant was near an occupied car in a "high narcotics area." If
this was all Campbell knew before he tried to detain defendant, his
"hunch" would not have justified his intrusion. See People v.
Hunt, 188 Ill. App. 3d 359, 362, 544 N.E.2d 118 (1989) (knowledge
of past criminal activity in an area alone did not justify stop).
But Campbell made several other relevant observations before
attempting to stop defendant.
Campbell testified that as defendant began to walk toward the
officers, he saw that defendant was wearing an open coat and that
there was "a bundle" or "bulge" at his waistband. Defendant also
had his hands in his pockets. Campbell then ordered defendant to
keep his hands where Campbell could see them. Defendant altered
his course and took an evasive step away. These articulable facts,
coupled with Campbell's knowledge that he was in a high crime area,
gave him reason to block defendant.
An investigatory stop is proper when the articulable facts,
together with natural inferences, make the intrusion reasonable.
People v. Scott, 148 Ill. 2d 479, 503, 594 N.E.2d 217 (1992),
quoting People v. Smithers, 83 Ill. 2d 430, 436 (1980); People v.
McGowan, 69 Ill. 2d 73, 78 (1977). We believe a reasonable officer
in Campbell's position would be alerted to the possibility of
criminal activity and that the better part of wisdom compelled
Campbell's minimal intrusion of blocking defendant's path to detain
defendant long enough to investigate.
Affirmed.
COUSINS, P.J., concurs.
JUSTICE LEAVITT, dissenting:
I agree with the majority that Officer Campbell's actions in
this case amounted to a show of force, contrary to the State's
position. However, I believe defendant's response to Campbell's
assertion of authority constituted a submission to that authority
and that defendant was thereby seized within the meaning of the
fourth amendment. I also disagree with the majority's finding
that, prior to the alleged seizure, Campbell had sufficient grounds
to justify a Terry stop of defendant. Thus, I respectfully
dissent.
As the majority correctly points out, "a defendant is not
seized when he ignores a show of authority." Slip op. at 5. See
People v. Perez, 249 Ill. App. 3d 912, 916, 619 N.E.2d 887 (1993)
(activation of police lights on squad car did not constitute a
seizure, as seizure did not occur until defendants yielded to
officer in pursuit); Ramirez, 244 Ill. App. 3d at 145. The seizure
of an individual "requires either physical force *** or, where that
is absent, submission to the assertion of authority." (Emphasis in
original.) Hodari D., 499 U.S. at 626, 113 L. Ed. 2d at 697, 111 S. Ct. at 1551. The question then becomes, in the absence of any
physical force applied to defendant, whether he submitted to
Officer Campbell's assertion of authority. I would find that he
did.
The determinative testimony by Officer Campbell, elicited on
cross-examination, was as follows:
Q. When you said in your arrest report, when you
asked the defendant to come towards you, he refused, is
that correct?
A. Correct.
Q. Explain to the court what you mean - what period
of time are you referring to that he refused to come
towards you?
A. Those few seconds I said 'Come over here' at
that time Mr. Billingslea originally took an evasive
step. I walked to block his path, and said, 'come here'.
I repeated it again and at that time, he turned around
and turned his back and threw the object."
I disagree with the majority's assertion that Ramirez controls
the present case. Based on the officer's own account, defendant
clearly did not flee when confronted with Campbell's show of
authority. That fact alone distinguishes the present case from
Ramirez, as well as the United States Supreme Court's decision in
Hodari D., relied upon by this court in Ramirez. In both those
cases, the defendants fled when first confronted by police
officers.
In contrast to the immediate and unhesitating flight of the
defendants in Ramirez and Hodari D., defendant in this case
remained in the place where he was instructed to stop and was
subsequently restrained by Officer Campbell. Defendant was
approximately 15 feet from Campbell when Campbell asked him to
approach him. Defendant continued towards Campbell, in obeyance of
his order, until he was in very close proximity (five to six feet)
of the officer. At this point, defendant--arguably "seized"
already--decided to exercise his right to walk away. In response,
the officer blocked defendant's path, ordering him to "come here,
come here." He testified that he did so to stop the defendant were
he to run. Physical contact is not required to effectuate a
seizure. Hodari D., 499 U.S. at 626-27, 113 L. Ed. 2d at 697, 111 S. Ct. at 1551. See also Kernats v. O'Sullivan, 35 F.3d 1171, 1180
(7th Cir. 1994) (holding that a "crucial element" of a seizure is
the "significant, present disruption of the targeted person's
freedom of movement" (emphasis omitted)). A refusal to flee or
otherwise escape is to be encouraged. See Hodari D., 499 U.S. at
627, 113 L. Ed. 2d at 697, 111 S. Ct. at 1551 (presuming "[o]nly a
few [police orders to stop] *** will be without adequate basis").
Under these circumstances, I would find that defendant's freedom of
movement was sufficiently restrained such that he was "seized"
within the meaning of the fourth amendment. See United States v.
Morgan, 936 F.2d 1561, 1567 (10th Cir. 1991) (momentary yielding to
show of authority sufficient to constitute seizure); Johnson v.
Grob, 928 F. Supp. 889, 898 (W.D. Mo. 1996) (same). But see United
States v. Lender, 985 F.2d 151, 154-55 (4th Cir. 1993); United
States v. Holloway, 962 F.2d 451, 456-58 (5th Cir. 1992).
It is also clear that defendant was not acting "'voluntarily
in a spirit of apparent cooperation with the officer's
investigation'" when he submitted to the assertion of authority.
(Emphasis omitted.) See Mendenhall, 446 U.S. at 553, 64 L. Ed. 2d
at 509, 100 S. Ct. at 1877, quoting Sibron v. New York, 392 U.S. 40, 63, 20 L. Ed. 2d 917, 935, 88 S. Ct. 1889, 1903 (1968). A
necessary, but not a sufficient, condition for a seizure is that a
reasonable innocent person in the same circumstances as the
defendant would not, due to the police conduct, feel free to
decline the officer's request or otherwise terminate the encounter.
See Hodari D., 499 U.S. at 628, 113 L. Ed. 2d at 698, 111 S. Ct. at
1551; Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, 111 S. Ct. at
2386. Hence, it must be determined whether an individual's
submission to an assertion of authority was the product of police
coercion or, rather, manifested a genuine willingness on the
citizen's part to cooperate with the officer's investigation; the
former case is indicative of a seizure, while in the latter case
the encounter remains consensual. See Mendenhall, 446 U.S. at 553,
64 L. Ed. 2d at 508-09, 100 S. Ct. at 1876-77. Cf. Jackson, 149
Ill. App. 3d at 158 (finding no seizure where detective approached
defendant, who then voluntarily followed detective away from a
group); Tilden, 70 Ill. App. 3d at 863 (finding no seizure where,
pursuant to officer's request, defendant voluntarily approached and
attempted to produce identification).
Relevant to this inquiry are such factors as "the threatening
presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or
the use of language or tone of voice indicating that compliance
with the officer's request might be compelled." Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. In this case
a number of these factors support the conclusion that defendant was
not submitting "in a spirit of apparent cooperation" with Officer
Campbell. Defendant was faced, not with one officer, but two.
Although not brandishing their weapons, both were armed and in
uniform. See United States v. Wood, 981 F.2d 536, 539 (D.C. Cir.
1992) (considering fact that both officers were armed and in full
uniform in finding that a reasonable person in defendant's position
would not have felt free to ignore the officers). The police
conduct in relation to defendant's companions is also relevant.
During Officer Campbell's encounter with defendant, Officer Merritt
was simultaneously conducting a search of defendant's companions,
both of whom had been told to "grab the car." The fact that one's
compatriots are forced to assume a position against the squad car
while being frisked would not lead defendant to believe that he was
free to move about his business.
Nor did Campbell's manner of address in this case indicate to
defendant that he was free to leave. Campbell did not approach
defendant at first but, rather, ordered defendant to come to him
(keeping in mind, again, that in defendant's presence his two
companions were being forced to stop and position themselves
against the squad car). See Mendenhall, 446 U.S. at 553, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877 (considering the fact that the
officers did not summon the respondent to their presence in finding
that no seizure occurred); United States v. Jordan, 958 F.2d 1085,
1087 (D.C. Cir. 1992) ("conversational tones" of officers' speech
suggest no seizure occurred). Perhaps most indicative of the
coercion present was defendant's failed attempt to bring the
encounter to an end. With Campbell five to six feet away,
defendant decided to exercise his right to walk away and took a
step in another direction, only to be confronted again by Campbell,
who then repeated his earlier commands for defendant to come to
him. Campbell testified he took this action so as to stop
defendant were he to run. While the subjective intent of the
officer is relevant only to the extent that the intent has been
conveyed to the person confronted (Michigan v. Chesternut, 486 U.S. 567, 575 n.7, 100 L. Ed. 2d 565, 573 n.7, 108 S. Ct. 1975, 1980 n.7
(1988); Mendenhall, 446 U.S. at 554 n.6, 64 L. Ed. 2d at 509 n.6,
100 S. Ct. at 1877 n.6), defendant in this case was, no doubt, made
fully aware of Campbell's intent to restrain him when the officer
blocked his path. See Tilden, 70 Ill. App. 3d at 863 (where
officer merely asked the defendant to approach and produce
identification, no seizure occurred since record revealed "no
further evidence that defendant's freedom to walk away was in any
fashion overcome by force or threat of force"). In sum, the
totality of the circumstances indicates that this was hardly a
consensual "benign police/citizen encounter." See Jordan, 958 F.2d at 1087.
Other jurisdictions have found lesser restraints on an
individual's freedom of movement sufficient to constitute a seizure
within the meaning of the fourth amendment. See United States v.
Coggins, 986 F.2d 651, 654 (3d Cir. 1993) (where the defendant
asked to leave but was ordered to remain and then sat back down, he
was seized even though he fled soon thereafter); Wood, 981 F.2d at
540-41 (finding the defendant had yielded to police authority and
was thereby seized where the defendant froze and dropped a gun
after being told to "halt right there" by officer); Morgan, 936 F.2d at 1566-67 (finding a seizure where the defendant, having been
commanded to "hold it right there" and urged not to run, paused
momentarily before fleeing); United States v. Wilson, 953 F.2d 116,
122-23 (4th Cir. 1991) (where officers followed the defendant
through the airport and persisted in asking him questions following
his refusal to consent to a search, the defendant was seized
despite his continued unimpeded progress towards his destination,
since such police persistence in the face of an attempt to
terminate an encounter may be the equivalent of physical
restraint).
Finally, I disagree with the majority's conclusion Officer
Campbell had sufficient articulable facts to justify a Terry stop
before any seizure of defendant could have occurred. The State
originally conceded as much, admitting that "[i]f this was a Terry
stop, and, therefore, a seizure of defendant's person before
defendant threw down the weapon, this would have been improper and
the weapon should have been suppressed by the trial court." The
officers in this case simply had insufficient articulable facts to
support an inference that an offense was taking place, had taken
place or was about to take place. The majority points to
Campbell's observation of a "bundle" or "bulge" at defendant's
waistband, but there is no indication in the record that Campbell
had any reason to believe that the "bundle" or "bulge" was a gun or
contraband of any type. The majority also points out that
defendant had his hands in his pockets, which, again, adds little
if anything in support of a Terry stop. As to defendant's "evasive
step," any attempt by a citizen to terminate a consensual encounter
with the police is obviously "evasive" from the officer's
viewpoint. Such an exercise of one's right to walk away, if the
right is not illusory, should not in my view be considered in
assessing the propriety of a Terry stop.
Here we have only the officer's testimony that he and his
partner were suspicious of the defendant and his companions because
they were standing by an occupied car in a "high narcotics area"
and "possibly *** could have had narcotics." This was simply
insufficient, as a matter of law, to justify a stop. A police
officer may not rely on "mere hunch and suspicion" to justify an
intrusion into a citizen's right to move freely in our society.
People v. Moore, 286 Ill. App. 3d 649, 654, 676 N.E.2d 700 (1997);
People v. Hunt, 188 Ill. App. 3d 359, 362, 544 N.E.2d 118 (1989).
I believe that the stop was improper and that the trial judge
should have granted the defendant's motion to suppress. I,
therefore, respectfully dissent.
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