People v. Flowers

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     0893 (unpublished order under Supreme Court Rule 23).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.