People v. Flowers

Annotate this Case
People v. Flowers, No. 82606 (11/20/97)

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.

Docket No. 82606--Agenda 13--September 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MELVIN
FLOWERS, Appellant.
Opinion filed November 20, 1997.

JUSTICE BILANDIC delivered the opinion of the court:
Defendant, Melvin Flowers, was charged in the circuit court of Vermilion
County with one count of possession of a controlled substance. 720 ILCS
570/402(c) (West 1994). The circuit court granted defendant's motion to suppress
evidence that was seized from him during a police "stop and frisk." The circuit
court ruled that the frisk was illegal because the officer did not have a reasonable
belief that defendant was armed and dangerous. The State appealed to the
appellate court and the appellate court reversed the suppression order. No. 4--95--
0893 (unpublished order under Supreme Court Rule 23). We granted defendant's
petition for leave to appeal (155 Ill. 2d R. 315), and we now reverse the appellate
court.

FACTS
The only witness to testify at the suppression hearing was Officer Stephen
Wilson of the Danville police department. Officer Wilson testified that the police
department had received a telephone call at 1:22 a.m. on July 12, 1995, from an
anonymous caller who reported seeing a black male wearing a white T-shirt and
riding a bicycle go to the rear of a house for sale on the 500 block of Woodbury.
The caller reported hearing what sounded like glass breaking at that time. Officer
Wilson, along with two fellow officers, responded to the report. Officer Wilson
testified that there were two houses that had "for sale" signs on the 500 block of
Woodbury. They checked both houses for signs of damage or illegal entry and
found them to be secure. They saw no broken windows in either house.
At 1:39 a.m., Officer Wilson was still on the 500 block of Woodbury when
he saw defendant, a black male, riding a bicycle. Officer Wilson activated the
police lights on his car and effectuated a stop of defendant because defendant
matched the description given by the earlier caller. Shortly after he stopped
defendant, Officer Wilson was joined by a fellow officer. Officer Wilson asked
defendant if he had been in the area earlier and defendant responded that he had
been. In response to further questions, defendant stated that he had been at his
girlfriend's house and was now returning to his home. Defendant gave the officer
his address and that of his girlfriend. Defendant had a bag on the front of his
bicycle. Officer Wilson asked defendant what was in the bag and defendant told
him it contained clothing. Defendant gave the officer consent to search the bag.
The search revealed that the bag contained clothing. Officer Wilson then "patted
[defendant] down for weapons." Officer Wilson asked defendant "what he had on
his person." In response, defendant took some items, including nail files and a
piece of tissue paper, out of his pockets and showed them to the officer.
Defendant was straddling his bicycle during the frisk.
Officer Wilson testified that he felt a "tube-like item" in defendant's
pocket, which he believed to be a crack pipe. He asked defendant if it was a crack
pipe and defendant responded that it was. Officer Wilson then continued the frisk
which revealed a plastic bag containing a small amount of a substance the officer
believed to be cocaine.
Officer Wilson testified that he frisked defendant "for my safety as well
as his." However, when asked whether he had any particular reason to believe that
defendant had a weapon, Officer Wilson responded: "No. I do that as a common
thing in my job, to pat people down for my safety as well as theirs."
At the conclusion of the suppression hearing, the trial court ruled that the
stop of defendant was valid under section 107--14 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/107--14 (West 1994)) and Terry v. Ohio, 392 U.S.
1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The trial court found, however, that
the frisk was invalid under section 108--1.01 of the Code and Terry. The trial
court therefore granted defendant's motion to suppress the evidence obtained as
a result of the frisk. The State filed a certificate of impairment and appealed to the
appellate court.
The appellate court reversed the suppression order, finding that the frisk
was valid. No. 4--95--0893 (unpublished order under Supreme Court Rule 23).
The appellate court noted that Officer Wilson was investigating a "possible
burglary" and that defendant "fit the description of the suspect." The court also
noted that the officer had testified that he routinely frisked suspects for his safety
and the safety of the suspects. The court then reasoned that, "in this society,"
Officer Wilson's "caution" was warranted.

ANALYSIS
The sole issue presented in this appeal is the validity of Officer Wilson's
frisk of defendant. The trial court determined that the frisk was invalid and that
the evidence obtained as a result must be suppressed. We find that the trial court's
ruling was not manifestly erroneous and must therefore be upheld.
The fourth amendment to the United States Constitution guarantees the
"right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const., amend. IV.
Reasonableness under the fourth amendment generally requires a warrant
supported by probable cause. Katz v. United States, 389 U.S. 347, 357, 19 L. Ed.
2d 576, 585, 88 S. Ct. 507, 514 (1967); People v. Bailey, 159 Ill. 2d 498, 503
(1994); People v. Galvin, 127 Ill. 2d 153, 169 (1989). A limited exception to the
traditional requirement was recognized by the Supreme Court in Terry v. Ohio,
392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, the Court held that
a police officer, under appropriate circumstances, could briefly detain a person for
investigatory purposes and, if necessary for safety, conduct a limited protective
search for weapons. People v. Scott, 148 Ill. 2d 479, 502 (1992); People v.
Smithers, 83 Ill. 2d 430, 434 (1980). Under the Terry exception, a police officer
may briefly stop a person for temporary questioning if the officer reasonably
believes that the person has committed, or is about to commit, a crime. Terry, 392
U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880; Smithers, 83 Ill. 2d at 434.
If the officer reasonably believes that the person stopped is armed and dangerous,
the officer may subject the person to a limited search for weapons, commonly
referred to as a "frisk." Terry, 392 U.S. at 24, 20 L. Ed. 2d at 908, 88 S. Ct. at
1881; Smithers, 83 Ill. 2d at 434.
The Terry standards have been codified in our Code of Criminal Procedure.
Section 107--14 of the Code provides, in pertinent part:
"Temporary Questioning without Arrest. A peace officer
*** may stop any person in a public place for a reasonable period
of time when the officer reasonably infers from the circumstances
that the person is committing, is about to commit or has committed
an offense *** and may demand the name and address of the
person and an explanation of his actions." 725 ILCS 5/107--14
(West 1994).
Section 108--1.01 of the Code provides:
"Search During Temporary Questioning. When a peace
officer has stopped a person for temporary questioning pursuant to
Section 107--14 of this Code and reasonably suspects that he or
another is in danger of attack, he may search the person for
weapons." 725 ILCS 5/108--1.01 (West 1994).
Defendant does not challenge the propriety of Officer Wilson's stopping
him for questioning. We therefore make no comment on the validity of the stop.
Defendant challenges the legality of Officer Wilson's frisk of defendant's person.
Whether an investigatory stop is valid is a separate question from whether a
search for weapons is valid. Galvin, 127 Ill. 2d at 163. The fact that an officer has
reason to stop a person does not automatically justify the further intrusion of a
search for weapons. Galvin, 127 Ill. 2d at 165; Smithers, 83 Ill. 2d at 434. Rather,
in order to validly conduct a weapons frisk under Terry and section 108--1.01, the
officer must have reason to believe that "the individual whose suspicious behavior
he is investigating at close range is armed and presently dangerous to the officer
or to others." Terry, 392 U.S. at 24, 20 L. Ed. 2d at 908, 88 S. Ct. at 1881; see
also Smithers, 83 Ill. 2d at 434. The sole justification for the search allowed by
the Terry exception is the protection of the police officer and others in the
vicinity, not to gather evidence. Minnesota v. Dickerson, 508 U.S. 366, 373, 124
L. Ed. 2d 334, 344, 113 S. Ct. 2130, 2136 (1993); Galvin, 127 Ill. 2d at 170. The
scope of the search is therefore strictly limited to a search for weapons. Galvin,
127 Ill. 2d at 170.
The validity of a frisk conducted during a valid investigatory stop is
assessed by an objective standard. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906,
88 S. Ct. at 1880; People v. Long, 99 Ill. 2d 219, 228 (1983). The question is
whether a reasonably prudent person in the circumstances would be warranted in
the belief that his safety or that of others was in danger. Terry, 392 U.S. at 27, 20
L. Ed. 2d at 909, 88 S. Ct. at 1883. The officer conducting the frisk must be able
to point to specific, articulable facts which, when taken together with natural
inferences, reasonably warrant the intrusion. Terry, 392 U.S. at 21, 20 L. Ed. 2d
at 906, 88 S. Ct. at 1880; Scott, 148 Ill. 2d at 503. These facts need not meet
probable cause standards, but must constitute more than a mere hunch. Scott, 148
Ill. 2d at 503. Although the standard is an objective one, the officer's subjective
belief regarding the safety of the situation is one of the factors that may be
considered in determining whether a weapons frisk was valid under Terry. Galvin,
127 Ill. 2d at 168.
In this case, the circuit court heard the evidence presented at the
suppression hearing and ruled that the frisk of defendant was invalid because there
was "no indication whatsoever" that defendant presented a danger to the officers.
A trial court's ruling on a motion to suppress will not be overturned unless it is
manifestly erroneous. Galvin, 127 Ill. 2d at 162. The record in this case amply
supports the trial court's ruling. The State does not dispute that the only possible
justification for searching defendant in this case is the Terry exception. The
evidence presented at the suppression hearing, however, failed to establish any
facts which would support a reasonable belief that defendant was armed and
dangerous.
First, Officer Wilson expressly testified that he had no reason to believe
that defendant had a weapon. Although the officer's subjective belief is not
dispositive of the validity of the frisk, it is probative of that determination. Galvin,
127 Ill. 2d at 168. This is particularly true where, as here, the officer candidly
admits that he had no reason to believe that the defendant was armed.
Officer Wilson's subjective assessment aside, there were no objective
circumstances which would support a reasonable belief that defendant was armed
and dangerous. Officer Wilson testified that he was responding to a report, by an
anonymous caller, of a possible burglary or break-in of a residence. The caller's
only basis for believing a burglary had taken place was hearing what sounded like
glass breaking. When the officers investigated, however, they found that the
residences in question were secure and observed no broken windows. Defendant
was not observed by the officers until approximately 15 minutes later. Thus, at the
time defendant was stopped, Officer Wilson and the other officers had already
investigated and found no evidence that the possible crime reported by the
anonymous caller had been committed or attempted.
Further, there was no evidence that defendant attempted to avoid Officer
Wilson when he approached or engaged in any other evasive or suspicious
behavior. To the contrary, defendant was completely cooperative with the police
officers. Defendant provided the officers with the information they requested,
including a plausible explanation for why he was in the area. Defendant answered
truthfully when asked about the contents of his bag and gave the officer consent
to search the bag. The contents of the bag--clothing--revealed no evidence of any
criminal activity on defendant's part. Defendant even showed Officer Wilson the
contents of his pockets in response to the officer's questioning. Moreover, Officer
Wilson was not alone when he frisked defendant but was joined by another officer
shortly after he stopped defendant. Under these circumstances, the trial court was
correct in concluding that there was no indication that defendant presented a threat
to the officers' safety. There was therefore no justification for frisking defendant.
Most problematic about the frisk in this case is Officer Wilson's asserted
reason for frisking defendant. Officer Wilson's testimony indicated that he frisked
defendant, not because of any particularized suspicion that defendant was armed,
but simply because it was his routine to frisk persons stopped for investigatory
questioning. The appellate court found that Officer Wilson's routine of frisking
detainees for "safety" reasons validated the frisk of defendant. Both Officer
Wilson's testimony and the appellate court's acceptance of that testimony reflect
a misapprehension of the scope and purpose of the Terry exception. First, the
officer's testimony reveals an erroneous belief that a weapons frisk is always
appropriate following an investigatory stop. This court has repeatedly recognized
that the right to frisk does not automatically follow from a valid stop. Galvin, 127
Ill. 2d at 165; Smithers, 83 Ill. 2d at 434. A weapons frisk is valid only when the
officer has reason to believe that a particular individual is armed and dangerous.
Terry, 392 U.S. at 24, 20 L. Ed. 2d at 908, 88 S. Ct. at 1881; Galvin, 127 Ill. 2d
at 165.
More importantly, the officer's testimony reveals a misapprehension of the
narrow scope of the Terry exception. The Supreme Court has repeatedly
emphasized that the "stop and frisk" allowed by Terry is an exception to the
general probable cause requirement and, as such, must be narrowly applied. See
Florida v. Royer, 460 U.S. 491, 499, 75 L. Ed. 2d 229, 237, 103 S. Ct. 1319,
1325 (1983); Ybarra v. Illinois, 444 U.S. 85, 93, 62 L. Ed. 2d 238, 247, 100 S.
Ct. 338, 343 (1979); Dunaway v. New York, 442 U.S. 200, 210, 60 L. Ed. 2d 824,
834, 99 S. Ct. 2248, 2255 (1979). The reason for narrowly circumscribing the
power of the police to conduct these types of searches was clearly articulated in
Terry. The Court there noted that "[e]ven a limited search of the outer clothing for
weapons constitutes a severe, though brief, intrusion upon cherished personal
security, and it must surely be an annoying, frightening, and perhaps humiliating
experience." Terry, 392 U.S. at 24-25, 20 L. Ed. 2d at 908, 88 S. Ct. at 1881-82.
The Court also recognized, however, that it could not blind itself to the need for
police officers to protect themselves while investigating suspicious activity. The
Court in Terry therefore struck a balance between the individual's "cherished"
right to be free from an invasion of personal security and law enforcement
officers' need to protect themselves by allowing a "narrowly drawn authority to
permit a reasonable search for weapons for the protection of the police officer."
Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883. The limited
exception recognized in Terry thus clearly does not permit police officers to
engage in a practice of routinely frisking individuals, without concern for whether
a particular person poses a danger. Here, Officer Wilson's testimony indicated that
he conducts no individualized consideration of whether any particular suspect is
armed, but simply applies a general rule that all persons he stops on suspicion of
criminal activity should be frisked for "safety" reasons. Such a generalized
approach to the power to frisk granted by Terry is improper. See Ybarra, 444 U.S.
at 94, 62 L. Ed. 2d at 247, 100 S. Ct. at 343 ("[t]he `narrow scope' of the Terry
exception does not permit a frisk for weapons on less than reasonable belief or
suspicion directed at the person to be frisked" (emphasis added)).
This court's decision in People v. Galvin, 127 Ill. 2d 153 (1989), supports
our holding here. In Galvin, the trial court granted the defendant's motion to
suppress evidence obtained during a weapons frisk. The police officer who
conducted the frisk testified at the suppression hearing that he had been
participating in a police surveillance on September 14, 1986, in a residential area
where a number of burglaries had recently taken place. The officer had been given
some information about possible suspects in the burglaries. On the night of one
of the prior burglaries, an anonymous witness had observed a black male, who
appeared to be hiding something under his jacket, walk from an alley and get into
a brown Oldsmobile in which another black male was waiting. The witness wrote
down the license plate number of the car and gave it to a neighbor who passed it
on to the police. During the police surveillance on September 14, the testifying
officer observed the defendant driving a brown Oldsmobile with that license plate
number slowly through the area. The defendant and another man, both of whom
were black, exited the vehicle and walked into the backyard of an unlighted house.
They were not seen again until 40 minutes later, when they returned to the car.
The officer had run a license plate search and discovered that the car belonged to
the defendant, who, the officer knew, had previously been arrested for burglary
and theft. Another officer saw one of the men put an unknown object into his
pocket. The officers continued to observe the men as they drove the Oldsmobile
around the area, stopping in several locations. The officers followed the men for
approximately two to three miles as they drove out of the area and, joined by two
other police cars, effectuated a stop of the defendant's vehicle. A total of five
officers were present at the scene of the stop. The defendant had exited the car
and was cooperating with the officers when the testifying officer frisked the
defendant. The frisk revealed a rifle ammunition magazine with live ammunition
in the defendant's pocket. The officer who conducted the frisk testified that he did
not believe that the defendant was armed or dangerous. The trial court granted the
defendant's motion to suppress the evidence obtained as a result of the frisk.
This court upheld the suppression of the evidence in Galvin. The court
found that the investigatory stop of the defendant was valid under Terry and
section 107--14 of the Code. The frisk, however, was found to be invalid. The
Galvin court considered all the circumstances surrounding the frisk, noting in
particular that multiple, armed officers were present at the scene, the defendant
was cooperative and the officer who conducted the frisk did not believe that the
defendant was armed. The court found that, under these circumstances, the trial
court was not manifestly erroneous in determining that there were no facts which
would support a reasonable belief that the defendant presented a threat to the
officers' safety. Galvin, 127 Ill. 2d at 169. Notably, the Galvin court rejected the
contention that the frisk was valid simply because the officer responded
affirmatively when asked by the prosecution whether he conducted the frisk to
"protect [his] own safety." The court noted that the officer never pointed to any
specific facts which made it reasonable to believe that his safety was in danger.
Galvin, 127 Ill. 2d at 168-69.
In this case, there is even less evidence that defendant was armed and
dangerous than there was in Galvin. Here, defendant was simply riding a bicycle
on a public street when he was stopped by the police. The officers did not observe
defendant engage in any suspicious behavior whatsoever and their investigation
had already revealed that the possible crime reported by the anonymous caller had
not occurred.
The State contends that reasonable justification existed for the search
because defendant was a "possible burglary suspect." This position is not
persuasive. First, as noted above, by the time Officer Wilson stopped defendant,
he and his fellow officers had already investigated the report and found no
evidence that a burglary had been committed or attempted. There is thus no basis
in the record for characterizing defendant, at that point, as a possible burglary
suspect. Moreover, even if defendant could properly be characterized as a possible
burglary suspect at the time he was stopped, the State's reliance on this factor
alone is contradictory to this court's holding in Galvin. In Galvin, this court
specifically rejected the State's argument that a frisk for weapons is justified every
time a burglary suspect is stopped. The court declined to adopt a legal
presumption that every burglary suspect is armed and dangerous, so as to justify
a search for weapons under the Terry exception. Rather, the Galvin court
emphasized that the reasonableness of every search must be judged by the
particular facts and circumstances surrounding it. Galvin, 127 Ill. 2d at 173. As
noted, in Galvin, this court upheld the ruling that the frisk was invalid even
though the individual frisked was a burglary suspect.
In sum, the record in this case provides no basis for overturning the trial
court's ruling granting defendant's motion to suppress. Officer Wilson testified
that he had no reason to believe that defendant was armed and dangerous and
there were no objective facts which indicated that defendant was armed and
dangerous. The trial court's ruling was not manifestly erroneous. The appellate
court's judgment reversing the trial court is therefore reversed and the circuit court
order is affirmed.

Appellate court judgment reversed;
circuit court judgment affirmed.