People v. Gonzalez
Annotate this Case
No. 2--95--0708
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
__________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
) No. 94--CF--2505
v. )
)
JOHN GONZALEZ, ) Honorable
) Frederick J. Kapala,
Defendant-Appellant. ) Judge, Presiding.
__________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
Following a jury trial, the defendant, John Gonzalez, was
convicted of unlawful use of a weapon by a felon (720 ILCS 5/24--
1.1(a) (West 1994)) and sentenced to nine years' incarceration. On
appeal, the defendant argues that (1) the trial court erred in
denying his motion to suppress evidence; and (2) the trial court
erred in denying his motion to allow the jury to view the area
where he was arrested. We affirm.
Prior to trial, the defendant moved to suppress the handgun
recovered by the police at the time of his arrest. At the
suppression hearing, Officer Kevin Gulley of the Rockford police
department testified that, on October 27, 1994, at approximately
2:40 a.m., he was patrolling the area of West and Cunningham
Streets in Rockford. This is a high-crime area in which there are
frequent "drug-related" and "shots-fired" calls. On the date in
question, he observed a vehicle driven by a white female speed past
him. Without the use of a radar gun, he estimated that the vehicle
was travelling about 40 miles per hour in a 30 miles per hour zone.
He did not notice any other passengers in the car. Officer Gulley
turned on his emergency lights, shined his spotlight into the car's
rearview mirror, and effectuated a traffic stop.
As soon as the vehicle came to a stop at a nearby corner, the
defendant exited the rear passenger side of the car and began
walking away. Officer Gulley exited his car, and "just for [his]
safety," he instructed the defendant to return to the scene. The
defendant ignored Officer Gulley's instructions and kept walking.
At that time, Officer Gulley, a canine officer, directed his dog to
exit the police car. He ordered the dog into the "heel" position.
The dog began "barking his head off" at the defendant. Officer
Gulley again instructed the defendant to return to the scene. At
this time, the defendant stopped, turned around, and hesitated. At
that moment, Officer Gulley believed that the defendant was going
to run away. However, the defendant began walking back toward the
scene. Because of the defendant's "strange behavior," Officer
Gulley asked him whether he was carrying any guns, needles, or
knives. The defendant responded affirmatively. Officer Gulley
then patted down the defendant and found a handgun in his
waistband.
On cross-examination, Officer Gulley reiterated that, at the
time defendant was walking away, he feared for his personal safety.
Officer Gulley testified that the defendant was a "necessary party"
to the traffic stop because he did not know who the defendant was
and was unsure why the defendant had exited the vehicle so abruptly
after the initial stop. Officer Gulley admitted that, at the time
he ordered the defendant to turn around and return to the scene, he
did not observe anything that indicated that the defendant was
committing or had committed a crime. He did not observe anything
in the defendant's hands.
Rebecca Sigala testified that, at the time of the stop, she
was a passenger in the front seat of a vehicle being driven by
Jessie Hogan. Sigala testified that the defendant was riding in
the backseat of the vehicle and that Hogan was in the process of
driving the defendant home. She never saw police emergency lights
before the car stopped in front of the defendant's home. When
Hogan pulled the car to the curb, Sigala and Hogan said good-bye to
the defendant and he exited the car. After the defendant exited
the car, a police car stopped behind it and a spotlight was shined
directly onto the car's rearview mirror. An officer exited from
the police car and said to the defendant, "Hey, come here." The
defendant "looked up, like surprised like, and he walked back there
to talk to the cop." The officer instructed the defendant only one
time to return to the scene. The officer did not activate his
emergency lights until after he had handcuffed the defendant.
Jessie Hogan testified that she drove the defendant home in
her car on October 27, 1994. When she stopped in front of his
house, the defendant exited the car and she said, "See you later."
Almost immediately thereafter, a police car pulled up behind her;
she was able to see the lights on top of the car even though they
were not activated at that time. The officer who exited from the
car told the defendant to "come here," and the defendant complied.
She heard a dog barking at some point. The police car's overhead
lights were not illuminated until after Officer Gulley called and
requested assistance.
At the conclusion of the hearing, the trial court noted that
"if an officer effectuates a legal traffic stop for a violation of
the law, [then] he has the right to insist the occupants in the car
remain in the car, and that's not what the Defendant did."
According to the trial court, it was not unconstitutional under the
circumstances of the traffic stop for Officer Gulley to ask the
defendant whether he was carrying any weapons, and when the
defendant responded affirmatively, it was not unconstitutional for
Officer Gulley to perform the search. The trial court also
determined that Officer Gulley's testimony was more credible then
that of Sigala and Hogan. Accordingly, the trial court denied the
defendant's motion to suppress.
The trial began on February 22, 1995. The testimony of
Officer Gulley, Sigala, and Hogan was substantially similar to that
which they had provided at the suppression hearing. The defendant
testified on his own behalf and admitted that he had prior
convictions of aggravated discharge of a firearm and robbery. The
defendant testified that, on the morning of October 27, 1994, Hogan
drove him home. As he was saying good-bye and exiting the car, he
noticed a police car approach and stop behind Hogan's car. The
officer shined his spotlight into Hogan's car. The defendant heard
someone say, "hey, you, come here." The defendant turned toward
the officer and "went directly back to him." At that time, the
police car's overhead lights were not illuminated.
The defendant met Officer Gulley in front of the police car.
According to the defendant, Officer Gulley asked for identification
and ordered him to put his hands on the hood of the police car.
After telling the defendant to sit on the hood of the police car,
Officer Gulley then searched the area around Hogan's car. Officer
Gulley recovered a handgun from the leaf-covered curb area near
Hogan's car. The defendant denied that the gun was his. Officer
Gulley then placed the defendant in handcuffs and radioed for
assistance. Officer Gulley did not illuminate his roof lights
until after he had handcuffed the defendant. According to the
defendant, Officer Gulley never asked him whether he was carrying
any guns, needles, or knives.
The defendant's primary contention on appeal is that the trial
court erred in denying his motion to suppress. The defendant
argues that he was unlawfully detained under the standards
articulated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). According to the defendant, Officer Gulley could
not have reasonably believed that he was in danger or that the
defendant was armed and dangerous based on the defendant's actions
at the scene. Therefore, the defendant concludes that he was
illegally stopped and searched and that the recovered handgun
should have been suppressed.
At the outset, we note that a trial court's decision on a
motion to suppress evidence will not be disturbed on review unless
that decision is clearly erroneous or against the manifest weight
of the evidence. People v. Drake, 288 Ill. App. 3d 963, 967
(1997). Our standard of review is such because the trial court is
in a superior position to determine and weigh the credibility of
the witnesses, to observe their demeanor, and to resolve conflicts
in their testimony. People v. Carter, 288 Ill. App. 3d 658, 662
(1997). Thus, the trial court's factual determinations, as well as
any reasonable inferences drawn therefrom, are entitled to great
deference on review. People v. Perez, 288 Ill. App. 3d 1037, 1043
(1997).
In this case, the parties initially dispute the facts of the
traffic stop itself. While the State argues that Officer Gulley
effectuated the stop with his emergency lights illuminated, the
defendant points to the testimony of Hogan and Sigala as evidence
that Officer Gulley did not activate the emergency lights until
after the defendant was arrested. The trial court determined that
Officer Gulley's testimony was more credible than that of Hogan and
Sigala. We have reviewed the record and conclude that such a
determination is neither clearly erroneous nor against the manifest
weight of the evidence. See Drake, 288 Ill. App. 3d at 967. We
will therefore examine the facts of this case by taking Officer
Gulley's version of the events as true.
Both the United States and the Illinois Constitutions protect
citizens from unreasonable searches and seizures. U.S. Const.,
amend. IV; Ill. Const. 1970, art. I, 6; People v. Fulton, 289 Ill.
App. 3d 970, 973 (1997). The fundamental purpose of these
provisions is "to protect the legitimate expectations of privacy
that citizens possess in their persons, their homes, and their
belongings (People v. James, 163 Ill. 2d 302, 311 (1994)), while
according " ' "fair leeway for enforcing the law in the community s
protection." [Citation.] ' " ( People v. James, 163 Ill. 2d 302 at
311 (1994), quoting Dunaway v. New York, 442 U.S. 200, 208, 60 L. Ed. 2d 824, 833, 99 S. Ct. 2248, 2254 (1979)). Our supreme court
has construed the search and seizure language found in article I,
section 6 of the Illinois Constitution in a manner that is
consistent with the United States Supreme Court s fourth amendment
jurisprudence. Fink v. Ryan, 174 Ill. 2d 302, 314 (1996).
Generally, searches and seizures are only reasonable if the
government has first obtained a warrant authorizing the action.
Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 156,
110 S. Ct. 2793, 2797 (1990). A warrantless search or seizure is
deemed per se unreasonable unless it comes within one of the few
specifically established and well-delineated exceptions. Coolidge
v. New Hampshire, 403 U.S. 443, 454-55, 29 L. Ed. 2d 564, 576, 91 S. Ct. 2022, 2032 (1971); Drake, 288 Ill. App. 3d at 967. In
instances where a police officer has lawfully stopped a motor
vehicle pursuant to a traffic stop, however, the officer may, as a
matter of course, order the driver and passengers out of the
vehicle. See Maryland v. Wilson, 519 U.S. ___, 137 L. Ed. 2d 41,
117 S. Ct. 882 (1997).
In Pennsylvania v. Mimms, 434 U.S. 106, 107, 54 L. Ed. 2d 331,
334, 98 S. Ct. 330, 331 (1977), the driver of a vehicle was stopped
for driving with an expired license plate. When the officer asked
the driver to step out of his car, the officer noticed a bulge in
his jacket. The bulge proved to be a .38 caliber revolver, and the
driver was arrested for carrying a concealed deadly weapon. Mimms,
434 U.S. at 107, 54 L. Ed. 2d at 334-35, 98 S. Ct. at 331. The
driver urged the suppression of the evidence on the ground that the
officer s action of ordering him out of the car was an unreasonable
seizure. Mimms, 434 U.S. at 107-08, 54 L. Ed. 2d at 335, 98 S. Ct.
at 331-32.
In finding that there was no improper search, the United
States Supreme Court held that an officer may order a driver to get
out of his vehicle as a precautionary measure in order to protect
the officer s own personal safety. Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-33. The Court held that such
a legitimate and weighty justification outweighed the intrusion
into the driver s liberty interest. Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-33. In instances where the
driver has already been validly stopped for a traffic infraction,
the Court described the additional intrusion of asking him to step
outside his car as de minimus. Mimms, 434 U.S. at 111, 54 L. Ed. 2d at 337, 98 S. Ct. at 333.
In Maryland v. Wilson, 519 U.S. ___, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997), the United States Supreme Court extended the law
enunciated in Mimms to the passengers of a legally stopped vehicle.
In that case, the officer stopped a vehicle for speeding and for
failure to display a license tag. The officer observed that the
front-seat passenger of the car appeared extremely nervous, and the
officer ordered him out of the car. As the passenger exited the
car, a quantity of cocaine fell to the ground and he was arrested.
Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 45, 117 S. Ct. at 884.
The passenger sought to have the evidence suppressed on the ground
that the officer s ordering him out of the car was an unreasonable
seizure. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 45-46, 117 S. Ct. at 884.
After a consideration of its analysis in Mimms, the Court held
that an officer may order passengers out of the vehicle during a
legal traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 48,
117 S. Ct. at 886. The Court summarized its rationale as follows:
[The] danger to an officer from a traffic stop is likely to
be greater when there are passengers in addition to the driver
in the stopped car. While there is not the same basis for
ordering the passengers out of the car as there is for
ordering the driver out, the additional intrusion on the
passenger is minimal. We therefore hold that an officer
making a traffic stop may order passengers to get out of the
car pending completion of the stop. Wilson, 519 U.S. at
___, 137 L. Ed. 2d at 48, 117 S. Ct. at 886.
The Court therefore concluded that there had been no fourth
amendment violation by the officer s conduct. Wilson, 519 U.S. at
___, 137 L. Ed. 2d at 48, 117 S. Ct. at 886.
The issue presented in the instant case extends this line of
inquiry one step further. The question that we must resolve is
whether an officer may forcibly require the defendant to remain at
the scene during the duration of the stop. This issue was raised
by the parties in Wilson, but the Court declined to express any
opinion upon it. Wilson, 519 U.S. at ___ n.3, 137 L. Ed. 2d at 48
n.3, 117 S. Ct. at 886 n.3.
As with all fourth amendment issues, in order to decide this
question we are required to balance the public interest gained by
the detention of the individual against the individual s right to
be free from arbitrary interference from law officers. See United
States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614-
15, 95 S. Ct. 2574, 2579 (1975). On the public interest side of
the balance, the same weighty interest in officer safety is
present. See Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37,
98 S. Ct. at 332-34. It would be illogical to grant an officer the
right to order a passenger out of the vehicle, but not to allow the
officer to have control over the passenger s movement during the
duration of the traffic stop. If an officer is not permitted to
detain the passenger, then the passenger could leave the scene and
ambush the officer during the remainder of the stop. This interest
in officer safety presents a compelling justification to permit the
officer to have control over the movement of all occupants of a
legally stopped vehicle. See Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-34.
On the personal liberty side of the balance, the passenger of
a stopped vehicle has a strong interest in being free from
arbitrary interference from police officers. See Wilson, 519 U.S.
at ___, 137 L. Ed. 2d at 47, 117 S. Ct. at 886. While there is
probable cause to believe that the driver of the vehicle has
committed a traffic offense in such instances, there is no similar
reason to stop the passenger of the vehicle. As a practical
matter, however, a passenger is necessarily stopped as a result of
the traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 47,
117 S. Ct. at 886. In light of the fact that the passenger has
already been stopped, we do not believe that requiring him to
remain at the scene causes a significant additional deprivation of
personal liberty. Indeed, aside from the unique circumstances of
this particular case, a passenger often will have no other option
but to wait for the completion of the traffic stop.
In view of these factors, we conclude that the public interest
in officer safety outweighs the potential intrusion to the
passenger s liberty interests. As noted in Wilson, traffic stops
are often dangerous encounters. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 47, 117 S. Ct. at 885. Violence often erupts when a
driver or passenger is fearful that evidence of a more serious
crime may be discovered during the stop. Wilson, 519 U.S. at ___,
137 L. Ed. 2d at 47-48, 117 S. Ct. at 886. In order to best
protect himself, a police officer must be afforded the opportunity
to control the scene. An officer s personal safety may be
threatened when the occupants of the stopped vehicle are permitted
to wander about the scene. We therefore hold that, in instances
where an officer fears for his personal safety, he may forcefully
detain the passenger of a vehicle that has been lawfully stopped.
Applying these principles to the instant case, we conclude
that it was permissible for Officer Gulley, with the aid of his
police dog, to order the defendant to return to the scene. As
noted above, the traffic stop was conducted in a high-crime area.
Officer Gulley testified that the defendant exited the vehicle
abruptly and that he was unsure of what the defendant was going to
do. As Officer Gulley did not know who the defendant was or who
else was in the vehicle, Officer Gulley believed that his personal
safety required that the defendant return to the car. It was only
after the defendant ignored this first command that Officer Gulley
brought out the police dog. In view of these circumstances and the
potential threat to Officer Gulley s personal safety, it was
appropriate for Gulley to forcefully detain the defendant at the
scene.
For these same reasons, we do not find that it was improper
for Officer Gulley to ask the defendant whether he was carrying any
guns, needles, or knives. In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)(codified at 725 ILCS 5/108--1.01
(West 1994)), the United States Supreme Court held that the fourth
amendment does not prevent a police officer from taking those
measures necessary to determine whether a suspect is armed and
poses a potential danger. The Court explained:
[W]e cannot blind ourselves to the need for law enforcement
officers to protect themselves and other prospective victims
of violence in situations where they may lack probable cause
for an arrest. When an officer is justified in believing that
the individual whose suspicious behavior he is investigating
at close range is armed and presently dangerous to the officer
or to others, it would appear to be clearly unreasonable to
deny the officer the power to take necessary measures to
determine whether the person is in fact carrying a weapon and
to neutralize the threat of physical harm. Terry, 392 U.S. at 25, 20 L. Ed. 2d at 907-08, 88 S. Ct. at 1881.
In such instances, the officer may subject the person to a limited
search for weapons, commonly referred to as a frisk. People v.
Flowers, No. 82606, slip op. at 3 (Ill. November 20, 1997). An
officer need not be absolutely certain that the individual is
armed. People v. Ware, 264 Ill. App. 3d 650, 655 (1994). The
issue 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; People v. Galvin, 127 Ill. 2d 153, 165 (1989).
Additionally, we note that, in instances where the immediate
physical safety of an officer is at stake, the officer may inquire
as to the presence of weapons without first advising the individual
of his Miranda rights. See United States v. Castellana, 500 F.2d 325, 326-27 (5th Cir. 1974); State v. Lane, 77 Wash. 2d 860, 863,
467 P.2d 304, 306 (1970); 1 W. LaFave & J. Israel, Criminal
Procedure, 6.7(b) at 506-08 (1984).
Contrary to the defendant s contentions, we believe that the
circumstances of the instant case were sufficient to create a
reasonable suspicion that the defendant was armed and a threat to
Officer Gulley s personal safety. As noted above, the defendant
ignored Gulley s first command to return to the scene. After
Officer Gulley brought his dog out of the squad car and again
ordered the defendant to return, the defendant turned, looked at
him, and hesitated. Although the defendant eventually returned to
the scene, Officer Gulley considered this behavior strange and he
feared for his own safety. Such circumstances were sufficient
under Terry to permit Officer Gulley to inquire whether the
defendant was armed and to pat down the defendant upon his
affirmative response. Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909,
88 S. Ct. at 1883. These actions were necessary to protect Officer
Gulley s personal safety and to allow him to gain control over the
scene. For these reasons, we find that there was no improper
search and seizure and conclude that the trial court properly
denied the defendant s motion to suppress.
The defendant s second contention on appeal is that the trial
court erred in denying his request to permit the jury to view the
area in which he was arrested. At trial, the defendant maintained
that, due to the topography in the area, it would have been
impossible for Officer Gulley to view Hogan s passing car at the
intersection of West and Cunningham Streets. The defendant argued
that permitting the jury to view the area would have been important
in determining the credibility of Officer Gulley s testimony. The
trial court denied the motion on the ground that a photograph would
sufficiently portray the scene to the jury.
As the defendant concedes, it is well settled that the
decision to allow jurors to personally view a crime scene lies
within the sound discretion of the trial court. People v. Durso,
40 Ill. 2d 242, 251 (1968). Where no useful purpose would be
served by such a viewing, it is not an abuse of discretion to deny
such a request. People v. Jarosiewicz, 55 Ill. App. 3d 1057, 1062
(1977). Photographs are often adequate to portray the scene for
the jury. Munjal v. Baird & Warner, Inc., 138 Ill. App. 3d 172,
185 (1985).
We agree with the trial court that a photograph or videotape
could have adequately portrayed the scene in question. Although
the trial court permitted the defendant the opportunity to
introduce such a picture at trial, he failed to do so. As the
defendant has never produced any pictures of the scene, we are
unable to assess the defendant s contention that such a photograph
would have been insufficient. Accordingly, we conclude that the
trial court did not abuse its discretion in denying the defendant s
motion. See Durso, 40 Ill. 2d at 251-52.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is affirmed.
Affirmed.
THOMAS, J., concurs.
JUSTICE BOWMAN, dissenting:
The majority concludes that it is constitutionally permissible
for a police officer to force a passenger in an automobile stopped
for a minor traffic violation to return to the scene of the stop
after that individual has exercised his right to walk away.
According to the majority, such police action is appropriate in
instances where an officer fears for his personal safety. Under
this rationale, a police officer is now empowered to detain
innocent passengers in situations where there is not a scintilla of
objectively reasonable evidence that the officer faces any
potential risk of harm. I simply cannot agree to this far-reaching
expansion of police power at the expense of individual liberty. I
therefore respectfully dissent.
In Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), the Supreme Court held that a police officer may
order the driver of a lawfully stopped car to exit the car as a
precautionary measure for the officer s safety. Mimms, 434 U.S. at
109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-33. More
recently, in Maryland v. Wilson, 519 U.S. ___, 137 L. Ed. 2d 41,
117 S. Ct. 882 (1997), the Court held that the Mimms rule applies
to passengers as well as drivers. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 47-48, 117 S. Ct. at 885-886. Thus, a police officer may
now order a passenger to exit a car pending the completion of a
traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 48, 117 S. Ct. at 886. In both cases, the underpinning of the Court s
conclusion was that, once a car was lawfully stopped by police, any
additional intrusion on an individual s liberty was de minimis and
is outweighed by consideration of the officer s safety at the scene
of the traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 48,
117 S. Ct. at 886; Mimms, 434 U.S. at 111, 54 L. Ed. 2d at 337, 98 S. Ct. at 333.
In light of these two Supreme Court decisions, the majority
concludes that it would be illogical to grant an officer the right
to order a passenger out of the vehicle, but not to allow the
officer to have control over the passenger s movement during the
duration of the stop. The critical flaw in the majority s
argument, however, is that it is framed in the context of a
Mimms/Wilson stop, where asking a driver or passenger to exit an
already-stopped car is merely a de minimis intrusion on that
person s freedom. In other words, the majority s rule contemplates
the situation where a police officer orders a passenger to exit a
car and, during the course of the traffic stop, the passenger
attempts to flee the scene, makes a furtive movement, or somehow
threatens the officer s safety. I have no doubt that in such a
situation a police officer would have an articulable suspicion of
possible danger which would justify detaining the passenger
pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). See Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 49-50,
117 S. Ct. at 887 (Stevens, J., dissenting, joined by Kennedy, J.).
We are not faced with such a case here, nor was the Court in
Wilson. Rather, our case involves an individual who exited the
car of his own volition and was proceeding away from the scene at
the time of Officer Gulley s commands to return. It does not
follow that any intrusion on this person s freedom is de minimis.
Importantly, defendant was walking away from the scene and
posed no threat to Officer Gulley s safety. Nothing in the record
indicates that defendant threatened Officer Gulley in any way. In
fact, Officer Gulley himself testified that he did not observe
anything suspicious in defendant s hands or anything that indicated
that defendant had committed or was committing a crime. Of course,
it is true that Officer Gulley stated that he asked defendant to
return to the scene just for [his] safety. Such a self-serving
and highly subjective remark, without any supporting evidence, is
simply insufficient to justify a restriction on individual freedom.
The majority argues that the passenger could leave the scene and
ambush the officer during the remainder of the stop. Such
thinking is speculative at best, paranoid at worst. The vast
number of traffic stops in this country do not involve violence of
any type. See Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 49-52, 117 S. Ct. at 887-89 (Stevens, J., dissenting, joined by Kennedy, J.).
Of those that do end violently, most violence almost certainly
occurs during the initial encounter between the officer and the
driver and any passengers; in other words, I envision that few, if
any, violent traffic stops involve situations where someone leaves
the scene only to return later to ambush the officer.
Moreover, because our case lacks any evidence of potential
harm to the officer but still condones the restriction of
individual liberty under the guise of officer safety, the rule
announced by the majority will affect hundreds of innocent
passengers stopped daily in this State. A police officer need not
articulate anything more than a baseless concern for his safety in
order to command a citizen who is exercising his constitutional
right to walk away to return to the scene. As Justice Stevens
noted in Wilson, Most traffic stops involve otherwise law-abiding
citizens ***. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 50, 117 S. Ct. at 888 (Stevens, J., dissenting, joined by Kennedy, J.). I
know of no crime defendant was committing at the time he chose to
walk away from the scene of the stop in this case. Neither Officer
Gulley nor the majority can point to any criminal activity by
defendant. Neither Officer Gulley nor the majority can articulate
any facts that demonstrate a potential threat to the officer s
safety at the scene. Therefore, I cannot agree that Officer
Gulley s actions amount to a de minimis intrusion on defendant s
freedom. I believe that ordering an individual to return to the
scene, in the presence of a barking police dog, after he has
already exercised his right to walk away is far more than the de
minimis intrusion the Mimms and Wilson Courts discussed. An
individual in defendant s position has the constitutional right to
be free from arbitrary police interference and unreasonable
searches and seizures. The trial court erred in denying
defendant s motion to suppress. Accordingly, I would reverse his
conviction.
Finally, I briefly note my disagreement with the majority s
Miranda analysis, an issue that was not raised by the parties. In
order to justify Officer Gulley s questioning of defendant, the
majority submits that in instances where the immediate physical
safety of an officer is at stake, the officer may inquire [of a
seized person] as to the presence of weapons without first advising
the individual of his Miranda rights. (Emphasis added.) Assuming
that I agreed with this proposition, for which the majority cites
no Illinois authority, I could not apply it in this case. There is
simply no evidence to support Officer Gulley s statement regarding
concerns for his safety; there is nothing in the record from which
a court could conclude that his immediate physical safety was
threatened and he was therefore justified in questioning defendant
absent a Miranda warning. Therefore, I believe that the majority
also erroneously concludes that Officer Gulley conducted a valid
search and seizure.
In sum, I believe that the majority s decision to increase
police power at the expense of constitutional rights necessarily
increases the possibility that such power will be abused. The
majority s conclusion certainly denigrates the time-honored
tradition that the fourth amendment is meant to protect against
unreasonable searches and seizures. In my opinion, the search and
seizure of defendant in this case was unreasonable because it was
not based on anything other than a police officer s subjective and
unfounded safety concern. I therefore dissent.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
__________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
) No. 94--CF--2505
v. )
)
JOHN GONZALEZ, ) Honorable
) Frederick J. Kapala,
Defendant-Appellant. ) Judge, Presiding.
__________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
Following a jury trial, the defendant, John Gonzalez, was
convicted of unlawful use of a weapon by a felon (720 ILCS 5/24--
1.1(a) (West 1994)) and sentenced to nine years' incarceration. On
appeal, the defendant argues that (1) the trial court erred in
denying his motion to suppress evidence; and (2) the trial court
erred in denying his motion to allow the jury to view the area
where he was arrested. We affirm.
Prior to trial, the defendant moved to suppress the handgun
recovered by the police at the time of his arrest. At the
suppression hearing, Officer Kevin Gulley of the Rockford police
department testified that, on October 27, 1994, at approximately
2:40 a.m., he was patrolling the area of West and Cunningham
Streets in Rockford. This is a high-crime area in which there are
frequent "drug-related" and "shots-fired" calls. On the date in
question, he observed a vehicle driven by a white female speed past
him. Without the use of a radar gun, he estimated that the vehicle
was travelling about 40 miles per hour in a 30 miles per hour zone.
He did not notice any other passengers in the car. Officer Gulley
turned on his emergency lights, shined his spotlight into the car's
rearview mirror, and effectuated a traffic stop.
As soon as the vehicle came to a stop at a nearby corner, the
defendant exited the rear passenger side of the car and began
walking away. Officer Gulley exited his car, and "just for [his]
safety," he instructed the defendant to return to the scene. The
defendant ignored Officer Gulley's instructions and kept walking.
At that time, Officer Gulley, a canine officer, directed his dog to
exit the police car. He ordered the dog into the "heel" position.
The dog began "barking his head off" at the defendant. Officer
Gulley again instructed the defendant to return to the scene. At
this time, the defendant stopped, turned around, and hesitated. At
that moment, Officer Gulley believed that the defendant was going
to run away. However, the defendant began walking back toward the
scene. Because of the defendant's "strange behavior," Officer
Gulley asked him whether he was carrying any guns, needles, or
knives. The defendant responded affirmatively. Officer Gulley
then patted down the defendant and found a handgun in his
waistband.
On cross-examination, Officer Gulley reiterated that, at the
time defendant was walking away, he feared for his personal safety.
Officer Gulley testified that the defendant was a "necessary party"
to the traffic stop because he did not know who the defendant was
and was unsure why the defendant had exited the vehicle so abruptly
after the initial stop. Officer Gulley admitted that, at the time
he ordered the defendant to turn around and return to the scene, he
did not observe anything that indicated that the defendant was
committing or had committed a crime. He did not observe anything
in the defendant's hands.
Rebecca Sigala testified that, at the time of the stop, she
was a passenger in the front seat of a vehicle being driven by
Jessie Hogan. Sigala testified that the defendant was riding in
the backseat of the vehicle and that Hogan was in the process of
driving the defendant home. She never saw police emergency lights
before the car stopped in front of the defendant's home. When
Hogan pulled the car to the curb, Sigala and Hogan said good-bye to
the defendant and he exited the car. After the defendant exited
the car, a police car stopped behind it and a spotlight was shined
directly onto the car's rearview mirror. An officer exited from
the police car and said to the defendant, "Hey, come here." The
defendant "looked up, like surprised like, and he walked back there
to talk to the cop." The officer instructed the defendant only one
time to return to the scene. The officer did not activate his
emergency lights until after he had handcuffed the defendant.
Jessie Hogan testified that she drove the defendant home in
her car on October 27, 1994. When she stopped in front of his
house, the defendant exited the car and she said, "See you later."
Almost immediately thereafter, a police car pulled up behind her;
she was able to see the lights on top of the car even though they
were not activated at that time. The officer who exited from the
car told the defendant to "come here," and the defendant complied.
She heard a dog barking at some point. The police car's overhead
lights were not illuminated until after Officer Gulley called and
requested assistance.
At the conclusion of the hearing, the trial court noted that
"if an officer effectuates a legal traffic stop for a violation of
the law, [then] he has the right to insist the occupants in the car
remain in the car, and that's not what the Defendant did."
According to the trial court, it was not unconstitutional under the
circumstances of the traffic stop for Officer Gulley to ask the
defendant whether he was carrying any weapons, and when the
defendant responded affirmatively, it was not unconstitutional for
Officer Gulley to perform the search. The trial court also
determined that Officer Gulley's testimony was more credible then
that of Sigala and Hogan. Accordingly, the trial court denied the
defendant's motion to suppress.
The trial began on February 22, 1995. The testimony of
Officer Gulley, Sigala, and Hogan was substantially similar to that
which they had provided at the suppression hearing. The defendant
testified on his own behalf and admitted that he had prior
convictions of aggravated discharge of a firearm and robbery. The
defendant testified that, on the morning of October 27, 1994, Hogan
drove him home. As he was saying good-bye and exiting the car, he
noticed a police car approach and stop behind Hogan's car. The
officer shined his spotlight into Hogan's car. The defendant heard
someone say, "hey, you, come here." The defendant turned toward
the officer and "went directly back to him." At that time, the
police car's overhead lights were not illuminated.
The defendant met Officer Gulley in front of the police car.
According to the defendant, Officer Gulley asked for identification
and ordered him to put his hands on the hood of the police car.
After telling the defendant to sit on the hood of the police car,
Officer Gulley then searched the area around Hogan's car. Officer
Gulley recovered a handgun from the leaf-covered curb area near
Hogan's car. The defendant denied that the gun was his. Officer
Gulley then placed the defendant in handcuffs and radioed for
assistance. Officer Gulley did not illuminate his roof lights
until after he had handcuffed the defendant. According to the
defendant, Officer Gulley never asked him whether he was carrying
any guns, needles, or knives.
The defendant's primary contention on appeal is that the trial
court erred in denying his motion to suppress. The defendant
argues that he was unlawfully detained under the standards
articulated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). According to the defendant, Officer Gulley could
not have reasonably believed that he was in danger or that the
defendant was armed and dangerous based on the defendant's actions
at the scene. Therefore, the defendant concludes that he was
illegally stopped and searched and that the recovered handgun
should have been suppressed.
At the outset, we note that a trial court's decision on a
motion to suppress evidence will not be disturbed on review unless
that decision is clearly erroneous or against the manifest weight
of the evidence. People v. Drake, 288 Ill. App. 3d 963, 967
(1997). Our standard of review is such because the trial court is
in a superior position to determine and weigh the credibility of
the witnesses, to observe their demeanor, and to resolve conflicts
in their testimony. People v. Carter, 288 Ill. App. 3d 658, 662
(1997). Thus, the trial court's factual determinations, as well as
any reasonable inferences drawn therefrom, are entitled to great
deference on review. People v. Perez, 288 Ill. App. 3d 1037, 1043
(1997).
In this case, the parties initially dispute the facts of the
traffic stop itself. While the State argues that Officer Gulley
effectuated the stop with his emergency lights illuminated, the
defendant points to the testimony of Hogan and Sigala as evidence
that Officer Gulley did not activate the emergency lights until
after the defendant was arrested. The trial court determined that
Officer Gulley's testimony was more credible than that of Hogan and
Sigala. We have reviewed the record and conclude that such a
determination is neither clearly erroneous nor against the manifest
weight of the evidence. See Drake, 288 Ill. App. 3d at 967. We
will therefore examine the facts of this case by taking Officer
Gulley's version of the events as true.
Both the United States and the Illinois Constitutions protect
citizens from unreasonable searches and seizures. U.S. Const.,
amend. IV; Ill. Const. 1970, art. I, 6; People v. Fulton, 289 Ill.
App. 3d 970, 973 (1997). The fundamental purpose of these
provisions is "to protect the legitimate expectations of privacy
that citizens possess in their persons, their homes, and their
belongings (People v. James, 163 Ill. 2d 302, 311 (1994)), while
according " ' "fair leeway for enforcing the law in the community s
protection." [Citation.] ' " ( People v. James, 163 Ill. 2d 302 at
311 (1994), quoting Dunaway v. New York, 442 U.S. 200, 208, 60 L. Ed. 2d 824, 833, 99 S. Ct. 2248, 2254 (1979)). Our supreme court
has construed the search and seizure language found in article I,
section 6 of the Illinois Constitution in a manner that is
consistent with the United States Supreme Court s fourth amendment
jurisprudence. Fink v. Ryan, 174 Ill. 2d 302, 314 (1996).
Generally, searches and seizures are only reasonable if the
government has first obtained a warrant authorizing the action.
Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 156,
110 S. Ct. 2793, 2797 (1990). A warrantless search or seizure is
deemed per se unreasonable unless it comes within one of the few
specifically established and well-delineated exceptions. Coolidge
v. New Hampshire, 403 U.S. 443, 454-55, 29 L. Ed. 2d 564, 576, 91 S. Ct. 2022, 2032 (1971); Drake, 288 Ill. App. 3d at 967. In
instances where a police officer has lawfully stopped a motor
vehicle pursuant to a traffic stop, however, the officer may, as a
matter of course, order the driver and passengers out of the
vehicle. See Maryland v. Wilson, 519 U.S. ___, 137 L. Ed. 2d 41,
117 S. Ct. 882 (1997).
In Pennsylvania v. Mimms, 434 U.S. 106, 107, 54 L. Ed. 2d 331,
334, 98 S. Ct. 330, 331 (1977), the driver of a vehicle was stopped
for driving with an expired license plate. When the officer asked
the driver to step out of his car, the officer noticed a bulge in
his jacket. The bulge proved to be a .38 caliber revolver, and the
driver was arrested for carrying a concealed deadly weapon. Mimms,
434 U.S. at 107, 54 L. Ed. 2d at 334-35, 98 S. Ct. at 331. The
driver urged the suppression of the evidence on the ground that the
officer s action of ordering him out of the car was an unreasonable
seizure. Mimms, 434 U.S. at 107-08, 54 L. Ed. 2d at 335, 98 S. Ct.
at 331-32.
In finding that there was no improper search, the United
States Supreme Court held that an officer may order a driver to get
out of his vehicle as a precautionary measure in order to protect
the officer s own personal safety. Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-33. The Court held that such
a legitimate and weighty justification outweighed the intrusion
into the driver s liberty interest. Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-33. In instances where the
driver has already been validly stopped for a traffic infraction,
the Court described the additional intrusion of asking him to step
outside his car as de minimus. Mimms, 434 U.S. at 111, 54 L. Ed. 2d at 337, 98 S. Ct. at 333.
In Maryland v. Wilson, 519 U.S. ___, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997), the United States Supreme Court extended the law
enunciated in Mimms to the passengers of a legally stopped vehicle.
In that case, the officer stopped a vehicle for speeding and for
failure to display a license tag. The officer observed that the
front-seat passenger of the car appeared extremely nervous, and the
officer ordered him out of the car. As the passenger exited the
car, a quantity of cocaine fell to the ground and he was arrested.
Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 45, 117 S. Ct. at 884.
The passenger sought to have the evidence suppressed on the ground
that the officer s ordering him out of the car was an unreasonable
seizure. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 45-46, 117 S. Ct. at 884.
After a consideration of its analysis in Mimms, the Court held
that an officer may order passengers out of the vehicle during a
legal traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 48,
117 S. Ct. at 886. The Court summarized its rationale as follows:
[The] danger to an officer from a traffic stop is likely to
be greater when there are passengers in addition to the driver
in the stopped car. While there is not the same basis for
ordering the passengers out of the car as there is for
ordering the driver out, the additional intrusion on the
passenger is minimal. We therefore hold that an officer
making a traffic stop may order passengers to get out of the
car pending completion of the stop. Wilson, 519 U.S. at
___, 137 L. Ed. 2d at 48, 117 S. Ct. at 886.
The Court therefore concluded that there had been no fourth
amendment violation by the officer s conduct. Wilson, 519 U.S. at
___, 137 L. Ed. 2d at 48, 117 S. Ct. at 886.
The issue presented in the instant case extends this line of
inquiry one step further. The question that we must resolve is
whether an officer may forcibly require the defendant to remain at
the scene during the duration of the stop. This issue was raised
by the parties in Wilson, but the Court declined to express any
opinion upon it. Wilson, 519 U.S. at ___ n.3, 137 L. Ed. 2d at 48
n.3, 117 S. Ct. at 886 n.3.
As with all fourth amendment issues, in order to decide this
question we are required to balance the public interest gained by
the detention of the individual against the individual s right to
be free from arbitrary interference from law officers. See United
States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614-
15, 95 S. Ct. 2574, 2579 (1975). On the public interest side of
the balance, the same weighty interest in officer safety is
present. See Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37,
98 S. Ct. at 332-34. It would be illogical to grant an officer the
right to order a passenger out of the vehicle, but not to allow the
officer to have control over the passenger s movement during the
duration of the traffic stop. If an officer is not permitted to
detain the passenger, then the passenger could leave the scene and
ambush the officer during the remainder of the stop. This interest
in officer safety presents a compelling justification to permit the
officer to have control over the movement of all occupants of a
legally stopped vehicle. See Mimms, 434 U.S. at 109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-34.
On the personal liberty side of the balance, the passenger of
a stopped vehicle has a strong interest in being free from
arbitrary interference from police officers. See Wilson, 519 U.S.
at ___, 137 L. Ed. 2d at 47, 117 S. Ct. at 886. While there is
probable cause to believe that the driver of the vehicle has
committed a traffic offense in such instances, there is no similar
reason to stop the passenger of the vehicle. As a practical
matter, however, a passenger is necessarily stopped as a result of
the traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 47,
117 S. Ct. at 886. In light of the fact that the passenger has
already been stopped, we do not believe that requiring him to
remain at the scene causes a significant additional deprivation of
personal liberty. Indeed, aside from the unique circumstances of
this particular case, a passenger often will have no other option
but to wait for the completion of the traffic stop.
In view of these factors, we conclude that the public interest
in officer safety outweighs the potential intrusion to the
passenger s liberty interests. As noted in Wilson, traffic stops
are often dangerous encounters. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 47, 117 S. Ct. at 885. Violence often erupts when a
driver or passenger is fearful that evidence of a more serious
crime may be discovered during the stop. Wilson, 519 U.S. at ___,
137 L. Ed. 2d at 47-48, 117 S. Ct. at 886. In order to best
protect himself, a police officer must be afforded the opportunity
to control the scene. An officer s personal safety may be
threatened when the occupants of the stopped vehicle are permitted
to wander about the scene. We therefore hold that, in instances
where an officer fears for his personal safety, he may forcefully
detain the passenger of a vehicle that has been lawfully stopped.
Applying these principles to the instant case, we conclude
that it was permissible for Officer Gulley, with the aid of his
police dog, to order the defendant to return to the scene. As
noted above, the traffic stop was conducted in a high-crime area.
Officer Gulley testified that the defendant exited the vehicle
abruptly and that he was unsure of what the defendant was going to
do. As Officer Gulley did not know who the defendant was or who
else was in the vehicle, Officer Gulley believed that his personal
safety required that the defendant return to the car. It was only
after the defendant ignored this first command that Officer Gulley
brought out the police dog. In view of these circumstances and the
potential threat to Officer Gulley s personal safety, it was
appropriate for Gulley to forcefully detain the defendant at the
scene.
For these same reasons, we do not find that it was improper
for Officer Gulley to ask the defendant whether he was carrying any
guns, needles, or knives. In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)(codified at 725 ILCS 5/108--1.01
(West 1994)), the United States Supreme Court held that the fourth
amendment does not prevent a police officer from taking those
measures necessary to determine whether a suspect is armed and
poses a potential danger. The Court explained:
[W]e cannot blind ourselves to the need for law enforcement
officers to protect themselves and other prospective victims
of violence in situations where they may lack probable cause
for an arrest. When an officer is justified in believing that
the individual whose suspicious behavior he is investigating
at close range is armed and presently dangerous to the officer
or to others, it would appear to be clearly unreasonable to
deny the officer the power to take necessary measures to
determine whether the person is in fact carrying a weapon and
to neutralize the threat of physical harm. Terry, 392 U.S. at 25, 20 L. Ed. 2d at 907-08, 88 S. Ct. at 1881.
In such instances, the officer may subject the person to a limited
search for weapons, commonly referred to as a frisk. People v.
Flowers, No. 82606, slip op. at 3 (Ill. November 20, 1997). An
officer need not be absolutely certain that the individual is
armed. People v. Ware, 264 Ill. App. 3d 650, 655 (1994). The
issue 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; People v. Galvin, 127 Ill. 2d 153, 165 (1989).
Additionally, we note that, in instances where the immediate
physical safety of an officer is at stake, the officer may inquire
as to the presence of weapons without first advising the individual
of his Miranda rights. See United States v. Castellana, 500 F.2d 325, 326-27 (5th Cir. 1974); State v. Lane, 77 Wash. 2d 860, 863,
467 P.2d 304, 306 (1970); 1 W. LaFave & J. Israel, Criminal
Procedure, 6.7(b) at 506-08 (1984).
Contrary to the defendant s contentions, we believe that the
circumstances of the instant case were sufficient to create a
reasonable suspicion that the defendant was armed and a threat to
Officer Gulley s personal safety. As noted above, the defendant
ignored Gulley s first command to return to the scene. After
Officer Gulley brought his dog out of the squad car and again
ordered the defendant to return, the defendant turned, looked at
him, and hesitated. Although the defendant eventually returned to
the scene, Officer Gulley considered this behavior strange and he
feared for his own safety. Such circumstances were sufficient
under Terry to permit Officer Gulley to inquire whether the
defendant was armed and to pat down the defendant upon his
affirmative response. Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909,
88 S. Ct. at 1883. These actions were necessary to protect Officer
Gulley s personal safety and to allow him to gain control over the
scene. For these reasons, we find that there was no improper
search and seizure and conclude that the trial court properly
denied the defendant s motion to suppress.
The defendant s second contention on appeal is that the trial
court erred in denying his request to permit the jury to view the
area in which he was arrested. At trial, the defendant maintained
that, due to the topography in the area, it would have been
impossible for Officer Gulley to view Hogan s passing car at the
intersection of West and Cunningham Streets. The defendant argued
that permitting the jury to view the area would have been important
in determining the credibility of Officer Gulley s testimony. The
trial court denied the motion on the ground that a photograph would
sufficiently portray the scene to the jury.
As the defendant concedes, it is well settled that the
decision to allow jurors to personally view a crime scene lies
within the sound discretion of the trial court. People v. Durso,
40 Ill. 2d 242, 251 (1968). Where no useful purpose would be
served by such a viewing, it is not an abuse of discretion to deny
such a request. People v. Jarosiewicz, 55 Ill. App. 3d 1057, 1062
(1977). Photographs are often adequate to portray the scene for
the jury. Munjal v. Baird & Warner, Inc., 138 Ill. App. 3d 172,
185 (1985).
We agree with the trial court that a photograph or videotape
could have adequately portrayed the scene in question. Although
the trial court permitted the defendant the opportunity to
introduce such a picture at trial, he failed to do so. As the
defendant has never produced any pictures of the scene, we are
unable to assess the defendant s contention that such a photograph
would have been insufficient. Accordingly, we conclude that the
trial court did not abuse its discretion in denying the defendant s
motion. See Durso, 40 Ill. 2d at 251-52.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is affirmed.
Affirmed.
THOMAS, J., concurs.
JUSTICE BOWMAN, dissenting:
The majority concludes that it is constitutionally permissible
for a police officer to force a passenger in an automobile stopped
for a minor traffic violation to return to the scene of the stop
after that individual has exercised his right to walk away.
According to the majority, such police action is appropriate in
instances where an officer fears for his personal safety. Under
this rationale, a police officer is now empowered to detain
innocent passengers in situations where there is not a scintilla of
objectively reasonable evidence that the officer faces any
potential risk of harm. I simply cannot agree to this far-reaching
expansion of police power at the expense of individual liberty. I
therefore respectfully dissent.
In Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), the Supreme Court held that a police officer may
order the driver of a lawfully stopped car to exit the car as a
precautionary measure for the officer s safety. Mimms, 434 U.S. at
109-111, 54 L. Ed. 2d at 336-37, 98 S. Ct. at 332-33. More
recently, in Maryland v. Wilson, 519 U.S. ___, 137 L. Ed. 2d 41,
117 S. Ct. 882 (1997), the Court held that the Mimms rule applies
to passengers as well as drivers. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 47-48, 117 S. Ct. at 885-886. Thus, a police officer may
now order a passenger to exit a car pending the completion of a
traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 48, 117 S. Ct. at 886. In both cases, the underpinning of the Court s
conclusion was that, once a car was lawfully stopped by police, any
additional intrusion on an individual s liberty was de minimis and
is outweighed by consideration of the officer s safety at the scene
of the traffic stop. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 48,
117 S. Ct. at 886; Mimms, 434 U.S. at 111, 54 L. Ed. 2d at 337, 98 S. Ct. at 333.
In light of these two Supreme Court decisions, the majority
concludes that it would be illogical to grant an officer the right
to order a passenger out of the vehicle, but not to allow the
officer to have control over the passenger s movement during the
duration of the stop. The critical flaw in the majority s
argument, however, is that it is framed in the context of a
Mimms/Wilson stop, where asking a driver or passenger to exit an
already-stopped car is merely a de minimis intrusion on that
person s freedom. In other words, the majority s rule contemplates
the situation where a police officer orders a passenger to exit a
car and, during the course of the traffic stop, the passenger
attempts to flee the scene, makes a furtive movement, or somehow
threatens the officer s safety. I have no doubt that in such a
situation a police officer would have an articulable suspicion of
possible danger which would justify detaining the passenger
pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). See Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 49-50,
117 S. Ct. at 887 (Stevens, J., dissenting, joined by Kennedy, J.).
We are not faced with such a case here, nor was the Court in
Wilson. Rather, our case involves an individual who exited the
car of his own volition and was proceeding away from the scene at
the time of Officer Gulley s commands to return. It does not
follow that any intrusion on this person s freedom is de minimis.
Importantly, defendant was walking away from the scene and
posed no threat to Officer Gulley s safety. Nothing in the record
indicates that defendant threatened Officer Gulley in any way. In
fact, Officer Gulley himself testified that he did not observe
anything suspicious in defendant s hands or anything that indicated
that defendant had committed or was committing a crime. Of course,
it is true that Officer Gulley stated that he asked defendant to
return to the scene just for [his] safety. Such a self-serving
and highly subjective remark, without any supporting evidence, is
simply insufficient to justify a restriction on individual freedom.
The majority argues that the passenger could leave the scene and
ambush the officer during the remainder of the stop. Such
thinking is speculative at best, paranoid at worst. The vast
number of traffic stops in this country do not involve violence of
any type. See Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 49-52, 117 S. Ct. at 887-89 (Stevens, J., dissenting, joined by Kennedy, J.).
Of those that do end violently, most violence almost certainly
occurs during the initial encounter between the officer and the
driver and any passengers; in other words, I envision that few, if
any, violent traffic stops involve situations where someone leaves
the scene only to return later to ambush the officer.
Moreover, because our case lacks any evidence of potential
harm to the officer but still condones the restriction of
individual liberty under the guise of officer safety, the rule
announced by the majority will affect hundreds of innocent
passengers stopped daily in this State. A police officer need not
articulate anything more than a baseless concern for his safety in
order to command a citizen who is exercising his constitutional
right to walk away to return to the scene. As Justice Stevens
noted in Wilson, Most traffic stops involve otherwise law-abiding
citizens ***. Wilson, 519 U.S. at ___, 137 L. Ed. 2d at 50, 117 S. Ct. at 888 (Stevens, J., dissenting, joined by Kennedy, J.). I
know of no crime defendant was committing at the time he chose to
walk away from the scene of the stop in this case. Neither Officer
Gulley nor the majority can point to any criminal activity by
defendant. Neither Officer Gulley nor the majority can articulate
any facts that demonstrate a potential threat to the officer s
safety at the scene. Therefore, I cannot agree that Officer
Gulley s actions amount to a de minimis intrusion on defendant s
freedom. I believe that ordering an individual to return to the
scene, in the presence of a barking police dog, after he has
already exercised his right to walk away is far more than the de
minimis intrusion the Mimms and Wilson Courts discussed. An
individual in defendant s position has the constitutional right to
be free from arbitrary police interference and unreasonable
searches and seizures. The trial court erred in denying
defendant s motion to suppress. Accordingly, I would reverse his
conviction.
Finally, I briefly note my disagreement with the majority s
Miranda analysis, an issue that was not raised by the parties. In
order to justify Officer Gulley s questioning of defendant, the
majority submits that in instances where the immediate physical
safety of an officer is at stake, the officer may inquire [of a
seized person] as to the presence of weapons without first advising
the individual of his Miranda rights. (Emphasis added.) Assuming
that I agreed with this proposition, for which the majority cites
no Illinois authority, I could not apply it in this case. There is
simply no evidence to support Officer Gulley s statement regarding
concerns for his safety; there is nothing in the record from which
a court could conclude that his immediate physical safety was
threatened and he was therefore justified in questioning defendant
absent a Miranda warning. Therefore, I believe that the majority
also erroneously concludes that Officer Gulley conducted a valid
search and seizure.
In sum, I believe that the majority s decision to increase
police power at the expense of constitutional rights necessarily
increases the possibility that such power will be abused. The
majority s conclusion certainly denigrates the time-honored
tradition that the fourth amendment is meant to protect against
unreasonable searches and seizures. In my opinion, the search and
seizure of defendant in this case was unreasonable because it was
not based on anything other than a police officer s subjective and
unfounded safety concern. I therefore dissent.
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