People v. Colyar , 2013 IL 111835 ( 2013 )

2013 IL 111835
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 111835)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MICHAEL COLYAR, Appellee.
Opinion filed April 18, 2013.
CHIEF JUSTICE KILBRIDE delivered the judgment of the court,
with opinion.
Justices Garman, Karmeier, and Theis concurred in the judgment
and opinion.
Justice Thomas specially concurred, with opinion.
Justice Burke dissented, with opinion, joined by Justice Freeman,
and dissented upon denial of rehearing, with opinion.
OPINION
¶1 The issue in this appeal is whether police officers violated
defendant’s constitutional right to be free from unreasonable searches
and seizures (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6). The
contested conduct arose during an incident that both parties agree was
initiated as a proper Terry stop. After police officers observed a bullet
in plain view in the center console of the vehicle, the officers ordered
defendant and his two passengers out of the vehicle, handcuffed and
searched them, and then, after recovering additional bullets from
defendant’s person and the vehicle, recovered a handgun from the
passenger side floor of the vehicle.
¶2 The circuit court of Cook County granted defendant’s motion to
suppress all of the recovered evidence. A majority of the appellate
court affirmed, concluding that the challenged police conduct
subjected defendant to an unlawful search without probable cause
because the bullet did not establish evidence of a crime. 407 Ill. App.
3d 294, 310. For the reasons that follow, we reverse the judgments of
the appellate and circuit courts.
¶3 I. BACKGROUND
¶4 Defendant was charged with multiple weapons charges after
police officers recovered bullets and a handgun from his person and
vehicle. Defendant filed a pretrial motion to quash arrest and suppress
evidence, arguing that the underlying search was unreasonable and
that he was subjected to an unlawful arrest without probable cause.
¶5 At the suppression hearing, Homewood police officer William
Alcott testified that on the evening of June 29, 2006, he was working
the tactical unit for a suburban task force in an unmarked squad car
with his partner, Detective Johnson. The officers wore plain clothes,
a police badge, a name tag, and a vest with the word “police” across
the back.
¶6 At approximately 8:45 p.m., Officer Alcott arrived at a motel the
officers routinely patrolled to check for “parties and stuff of that
nature” involving minors. The officers, however, had not received
any calls of suspicious activity or reports of criminal activity that day.
When the officers arrived at the motel, defendant’s vehicle was
parked in the south entrance to the motel’s parking lot, between 50
and 100 feet from the motel’s main building entrance. Because of the
location of defendant’s vehicle, Officer Alcott drove around the motel
building to the west parking lot entrance and stopped, observing
defendant’s vehicle for two or three minutes. During this time,
defendant’s vehicle remained in the entrance.
¶7 Officer Alcott parked his squad car in the parking lot, but he did
not block defendant’s vehicle. The officers then exited their squad car
and walked toward defendant’s vehicle to ask defendant why he was
parked in the entrance. During their approach, the officers did not
draw their service weapons. Officer Alcott described the lighting
conditions at the time as “dusk” but “not dark.” Defendant sat in the
driver’s seat, with the car’s engine running, and there was also a
passenger in his car. As the officers approached defendant’s vehicle,
a third individual exited the motel, walked to defendant’s vehicle, and
got inside the rear passenger compartment.
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¶8 Officer Alcott approached the driver side, and Detective Johnson
went to the passenger side. When Officer Alcott asked defendant why
he was blocking the entrance, defendant replied that he was picking
someone up from the motel. During this conversation, Detective
Johnson motioned to Officer Alcott and advised him of a plastic bag
in the center console. Officer Alcott shined his flashlight into the
center console and saw in plain view a plastic bag with a bullet
“sticking up” inside. Officer Alcott described the bullet as “the largest
pistol round” he had ever seen, approximately three inches long.
Officer Alcott further described the bullet as being as large as a rifle
round.
¶9 After Officer Alcott saw the bullet, he ordered defendant and his
two passengers out of the car. The officers handcuffed defendant and
the two passengers near the front of the vehicle. Officer Alcott
recovered the plastic bag from the center console, and discovered that
it contained a total of five live rounds of .454-caliber ammunition.
¶ 10 After recovering the five bullets from the bag in defendant’s
center console, the officers conducted a pat-down search of defendant
and his two occupants. Officer Alcott recovered a single bullet from
defendant’s front pants pocket that matched the five .454-caliber
bullets recovered from the plastic bag in the center console. Based on
the recovery of the five bullets from the center console and one bullet
from defendant’s pocket, Officer Alcott believed that there might be
a gun inside defendant’s vehicle. Ultimately, Detective Johnson found
a .454 revolver under a floor mat on the front passenger side.
Subsequently, defendant and his two passengers were transported to
the police station.
¶ 11 Following Officer Alcott’s testimony, and prior to ruling on
defendant’s motion to suppress, the circuit court heard arguments
from the parties on two separate days. Defendant argued that the
police officers lacked probable cause for any of their conduct because
possession of a bullet is not per se illegal and the police officers
failed to ask defendant whether he possessed a valid Firearm Owner’s
Identification (FOID) card. Consequently, because the officers did not
know whether defendant possessed the bullet legally, defendant
asserted that the officers subjected him to an unlawful arrest without
probable cause when they ordered him out of the car and handcuffed
him. Defendant noted that no criminal activity had been reported in
the area at the time of the incident and no evidence suggested that he
was engaged in criminal activity.
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¶ 12 In response, the State argued that the officers did not subject
defendant to an illegal seizure or arrest. Instead, the officers acted
appropriately when they approached defendant’s vehicle to ascertain
why it was blocking the motel’s parking lot entrance. When the
officers saw the bullet in the center console, they were entitled to
order defendant and his two passengers out of the car for their own
safety. Similarly, when they recovered the multiple bullets from the
center console and the bullet from defendant’s pants pocket, the
officers properly searched the car and recovered the handgun.
¶ 13 After hearing arguments, the trial court denied defendant’s motion
to suppress the bullets, but granted his motion to suppress the gun.
The court found that, pursuant to Terry, the officers properly
recovered the bullets, including the bullet recovered from defendant’s
pants when he was handcuffed. The court further found, however,
that the recovery of the gun was illegal because the officers did not
have probable cause to believe that defendant was committing a crime
when the possession of a bullet is not per se illegal and the officers
failed to asked defendant if he possessed a valid FOID card. The court
explained that it “presum[ed] the State’s theory is search incident to
arrest that allowed them to conduct” the search of the vehicle.
¶ 14 Defendant moved orally to reconsider the trial court’s ruling
admitting the bullets. Defendant again asserted that possession of a
bullet is not per se illegal and, therefore, the officers in this case
arrested him unlawfully when they ordered him out of the car and
handcuffed him based solely on the plain-view bullet without first
finding out if defendant possessed a valid FOID card or had
previously been convicted of a felony. The State responded that the
trial court’s ruling admitting the bullets recovered from the center
console and defendant’s person was proper under Terry.
¶ 15 Following arguments on defendant’s oral motion to reconsider,
the circuit court granted his motion to reconsider and ordered that all
the bullets be suppressed because the officers failed to ask defendant
whether he possessed a valid FOID card before they ordered him out
of the car and searched him and the vehicle. Thus, the court ordered
that all of the recovered evidence, the bullets and the gun, be
suppressed.
¶ 16 In addition, the circuit court continued the State’s written motion
to reconsider its ruling suppressing the gun. In pertinent part, the
State argued that the officers’ discovery of the bullets created
justifiable concern for their safety because the bullets could
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reasonably indicate the presence of a gun, citing Michigan v. Long,
463 U.S. 1032 (1983). Ultimately, however, the State filed a
certificate of substantial impairment and notice of appeal under
Supreme Court Rule 604(a)(1) (eff. July 1, 2006) before the circuit
court could rule on the State’s motion to reconsider.
¶ 17 On appeal, a majority of the appellate court affirmed the circuit
court’s order suppressing all of the evidence. Before reaching the
merits of the suppression order, the majority construed the State’s
position on appeal as being that the officers had probable cause to
believe a crime had been committed when they saw the bullet in plain
view in the center console of defendant’s car, justifying a search
incident to his arrest. Thus, the majority limited its analysis to
whether the State had probable cause. 407 Ill. App. 3d at 297-300.
¶ 18 In a footnote, however, the majority acknowledged that the State’s
citation to Long in the motion to reconsider filed in the circuit court
might indicate that the State intended to argue that the search was
justified based on reasonable suspicion under Terry, rather than on
probable cause. Nonetheless, the majority found that the State
forfeited its Terry argument on reasonable suspicion when it filed a
notice of appeal before the circuit court could rule on the State’s
motion to reconsider. The majority reasoned that a party is prohibited
from advancing “a new theory” on appeal in an effort to overturn an
adverse decision. 407 Ill. App. 3d at 297 n.3.
¶ 19 On the merits, the majority affirmed the suppression of all the
bullets and the handgun based on a lack of probable cause.
Specifically, the majority explained its conclusion that probable cause
was lacking as follows:
“While the officers engaged in a lawful Terry stop, the
recovery of the bullets did not provide evidence of a crime in
the absence of evidence that the defendant did not possess a
valid FOID card or was a convicted felon. The officers
improperly escalated the investigative stop into a full-blown
arrest of the defendant and then engaged in the search of the
vehicle as incident to the arrest.” 407 Ill. App. 3d at 310.
¶ 20 The dissenting justice disagreed with the majority’s decision to
limit the State’s position to probable cause for a search incident to
arrest, noting that the State raised the Terry-stop rationale during the
hearing on defendant’s motion to suppress in the circuit court. Thus,
the dissenting justice argued that the case should be reviewed as a
brief investigative Terry stop.
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¶ 21 Specifically, the dissenting justice believed the case was governed
by the United States Supreme Court’s holding in Long, permitting
police officers to search the passenger compartment of a car when no
arrest has been made if they reasonably believed that the suspect is
dangerous and may gain immediate control of weapons. Relying on
Long, the dissenting justice concluded that “the arresting officers,
upon observing the plain-view bullet in the car, had reasonable
suspicion to stop defendant and conduct protective searches for
weapons on defendant’s person and in the passenger compartment of
his car. Then, the revolver found under the front-passenger floor mat
gave the police probable cause to arrest defendant.” Accordingly, the
dissenting justice argued that the circuit court’s suppression order
should be reversed. 407 Ill. App. 3d at 311-15 (Lampkin, J.,
dissenting).
¶ 22 This court allowed the State’s petition for leave to appeal. Ill. S.
Ct. R. 315 (eff. Feb. 26, 2010).
¶ 23 II. ANALYSIS
¶ 24 On appeal, the State challenges the appellate court majority’s
affirmance of the circuit court’s order suppressing the recovered
bullets and handgun. This court reviews a trial court’s order
suppressing evidence using a two-part standard. People v. Oliver, 236
Ill. 2d 448, 454 (2010). We afford great deference to the trial court’s
factual findings, and will reverse those findings only if they are
against the manifest weight of the evidence. Oliver, 236 Ill. 2d at 454.
We review de novo, however, the trial court’s ultimate legal ruling on
whether suppression is warranted. Oliver, 236 Ill. 2d at 454.
¶ 25 As a preliminary matter, we address the appellate court majority’s
decision not to consider the State’s argument that the police officers’
conduct here constituted a lawful Terry stop based on reasonable
suspicion. The majority believed the State was improperly attempting
to assert a “new theory” on appeal, and limited its consideration
solely to whether the officers’ conduct was proper as a search incident
to arrest. Essentially, the majority concluded that the State forfeited
any argument based on Terry.
¶ 26 The State maintains that the majority erroneously concluded that
it forfeited a Terry argument because, as the dissenting justice noted,
the record demonstrates that the State argued Terry, including an
argument that the searches were justified for officer safety, at the
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hearings on defendant’s motion to suppress. Defendant does not
respond to the State’s forfeiture argument.
¶ 27 Generally, to preserve an issue for appellate review, a party must
raise the issue before the trial court and in a posttrial motion. People
v. Enoch, 122 Ill. 2d 176, 186 (1988). Here, the record demonstrates
that the State consistently argued in the pretrial suppression hearings
before the circuit court that the officers’ conduct was reasonable and
proper under Terry. Notably, the circuit court itself found some of the
officers’ conduct proper under Terry. Moreover, in the State’s
posttrial motion to reconsider, the State relied on Long, a decision
applying Terry, and argued that the officers’ conduct was proper
because they were concerned for their safety and reasonably
suspected a gun was present after recovering the bullets. Based on
this record, we necessarily reject the appellate court majority’s
conclusion that the State forfeited any argument based on Terry.
¶ 28 We now turn to the parties’ substantive arguments on whether the
officers’ conduct here violated defendant’s constitutional right to be
free from unreasonable searches and seizures. The State argues that,
under the totality of the facts and circumstances, what began as a
neutral encounter escalated when the officers observed the bullet in
plain view in the center console of defendant’s vehicle. Reasonably
suspecting that defendant or his passengers were armed and presently
dangerous and that criminal activity may be afoot, the officers were
permitted under Terry and Long to detain defendant and his
passengers and perform protective searches of their persons and areas
of the car that would provide immediate access to a weapon.
Consequently, the State argues that the circuit court’s suppression
order should be reversed.
¶ 29 Defendant responds that Terry does not justify the officers’
conduct because the circumstances were “absolutely benign” and
possession of a bullet is not per se illegal. Thus, defendant argues that
Officer Alcott and Detective Johnson could not reasonably believe a
crime was being committed, particularly when they failed to ask him
whether he possessed a valid FOID card. Defendant also notes that at
the time of the incident it was dusk, but not yet dark, no suspicious or
criminal activity had been reported in the area, and, besides the police
officer’s vehicle, no other vehicle was inconvenienced by defendant’s
vehicle parked in the motel parking lot entrance.
¶ 30 Defendant does not challenge the officers’ initial approach and
interaction with defendant at his vehicle. Instead, defendant asserts
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that “[t]he unlawful seizure occurred after Officer Alcott brought the
defendant and the other individuals to the front of the vehicle,
handcuffed them[,] then recovered the bullets from the console and
searched the defendant and recovered another bullet.” Defendant
further asserts that handcuffing him and his two passengers “may very
well have turned this benign encounter into an arrest, therefore
requiring probable cause to search the vehicle.” Thus, defendant
argues that the lower courts properly suppressed all of the recovered
evidence because the officers’ conduct was not justified by probable
cause.
¶ 31 Both the fourth amendment and the Illinois Constitution of 1970
guarantee the right of individuals to be free from unreasonable
searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art.
I, § 6. This court has explained that “[t]he ‘essential purpose’ of the
fourth amendment is to impose a standard of reasonableness upon the
exercise of discretion by law enforcement officers to safeguard the
privacy and security of individuals against arbitrary invasions.”
People v. McDonough, 239 Ill. 2d 260, 266 (2010) (quoting Delaware
v. Prouse, 440 U.S. 648, 653-54 (1979)).
¶ 32 As the parties’ respective arguments demonstrate, central to this
appeal is the United States Supreme Court’s landmark decision in
Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Court held that a brief
investigatory stop, even in the absence of probable cause, is
reasonable and lawful under the fourth amendment when a totality of
the circumstances reasonably lead the officer to conclude that
criminal activity may be afoot and the subject is armed and
dangerous. Terry, 392 U.S. at 30; see also People v. Close, 238 Ill. 2d
497, 505-06 (2010) (recognizing that this court follows Terry and
adheres to its standards when reviewing the propriety of investigatory
stops under the Illinois Constitution).
¶ 33 Explaining its decision to approve of investigatory stops based
solely on reasonable suspicion, the Terry court noted that it carefully
had to balance the need of law enforcement officials to have some
flexibility when investigating potential criminal activity with an
individual citizen’s fourth amendment rights to be protected against
unreasonable police interference. Terry, 392 U.S. at 10-12.
Reviewing the government interests at stake, the Court observed that
the government has a general interest in effective crime prevention
and detection. This general interest justifies “the recognition that a
police officer may in appropriate circumstances and in an appropriate
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manner approach a person for purposes of investigating possibly
criminal behavior even though there is no probable cause to make an
arrest.” Terry, 392 U.S. at 22.
¶ 34 The Court further explained, however, that the “crux” of Terry
was another, “more immediate” government interest. Terry, 392 U.S.
at 23. Specifically, the interest in allowing a police officer to “tak[e]
steps to assure himself that the person with whom he is dealing is not
armed with a weapon that could unexpectedly and fatally be used
against him.” Terry, 392 U.S. at 23. Because of the indisputable
threat posed to law enforcement officials during the course of
investigatory stops, the Court concluded:
“[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 24.
¶ 35 While recognizing that a police officer’s need to protect himself
from danger was important, the government’s interest had to be
balanced with the fourth amendment rights of an individual citizen to
be free from unreasonable searches and seizures. In the Court’s view,
the proper balance was to afford law enforcement officials “a
narrowly drawn authority” to permit a reasonable search for weapons
when the officer has reason to believe that the subject of his
investigation is armed and dangerous. Terry, 392 U.S. at 27.
¶ 36 The Terry Court admonished, however, that “[t]he officer need
not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.”
When reviewing the reasonableness of an officer’s conduct, it is
appropriate to give due weight to “the specific reasonable inferences
which [the officer] is entitled to draw from the facts in light of his
experience.” Terry, 392 U.S. at 27.
¶ 37 Ultimately, the Terry Court held that when a police officer
observes unusual conduct that reasonably leads him to conclude
criminal activity may be afoot and the individual he is dealing with
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is armed and presently dangerous, the officer is permitted to stop the
individual and make reasonable inquiries. If, however, “nothing in the
initial stages of the encounter serves to dispel [the officer’s]
reasonable fear for his own or others’ safety, he is entitled for the
protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.” The Court
also indicated that courts reviewing the propriety of these types of
investigatory stops must decide each case on its own unique facts.
Terry, 392 U.S. at 30-31.
¶ 38 Relevant to the issues here, the United States Supreme Court has
extended Terry to permit a protective search of a passenger
compartment of a vehicle during an investigatory stop. Michigan v.
Long, 463 U.S. 1032 (1983); see also Arizona v. Gant, 556 U.S. 332,
352 (2009) (Scalia, J., concurring) (noting that “the rule of Michigan
v. Long is not at issue here”). Explaining its decision, the Long Court
noted that roadside encounters are “especially hazardous,” and a
police officer may reasonably believe that he is in danger from the
possible presence of accessible weapons inside the vehicle. Long, 463
U.S. at 1049.
¶ 39 Under Long, the investigative search of the passenger
compartment should be limited to the area where a weapon may be
located or hidden. The search is permissible only when the officers
possess a reasonable belief, based on specific and articulable facts
and reasonable inferences from those facts, that the individual was
dangerous and could gain control of a weapon. As in Terry, “ ‘[t]he
issue is whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in
danger.’ ” Long, 463 U.S. at 1050 (quoting Terry, 392 U.S. at 27).
¶ 40 This court follows Terry and its rationale, and has concluded that
a Terry-type stop must be justified at its inception, and the “ ‘police
officer must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably
warrant that intrusion.’ ” Close, 238 Ill. 2d at 505 (quoting Terry, 392
U.S. at 21). Although the police officer’s level of suspicion need not
rise to the level of probable cause, it must be more than an
inarticulate hunch. Close, 238 Ill. 2d at 505. When reviewing the
officer’s action, we apply an objective standard to decide whether the
facts available to the officer at the time of the incident would lead an
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individual of reasonable caution to believe that the action was
appropriate. Close, 238 Ill. 2d at 505.
¶ 41 With these principles in mind, we consider the circumstances
presented in this case. The parties agree that the officers’ initial
approach and their questioning of defendant in his vehicle was lawful.
Defendant conceded at oral arguments that his initial encounter with
the officers, before he was ordered out of his car and handcuffed, was
lawful under Terry. Similarly, the appellate court here agreed that
defendant’s initial encounter with police was proper under Terry.
Thus, we must decide whether Terry justifies the officers’ subsequent
decision, after seeing the bullet in plain view in the center console, to
order defendant and his passengers out of the car, handcuff them,
search their persons, and then ultimately search defendant’s car and
recover the handgun.
¶ 42 Here, the record demonstrates that Officer Alcott and Detective
Johnson were in a vulnerable situation when they observed the bullet.
It was dusk and the officers were on foot in a parking lot away from
their vehicle. The two officers, who had not drawn their weapons,
were also outnumbered by defendant and his two passengers, who
were in a running car. Finally, the officers had only a brief exchange
with defendant prior to their observation of the plain-view bullet. In
other words, the officers were forced to make a quick decision based
on limited information after seeing the bullet.
¶ 43 Reviewing the actions of Officer Alcott and Detective Johnson
under an objective standard, we believe that a reasonably cautious
individual in a similar situation could reasonably suspect the presence
of a gun, thus implicating officer safety, based on the bullet clearly
visible in defendant’s center console. Common sense and logic
dictate that a bullet is often associated with a gun. Indeed, our
appellate court has recognized that a bullet observed inside a vehicle
may reasonably indicate the presence of a gun inside that vehicle.
People v. Stack, 244 Ill. App. 3d 393, 397 (1993); see also People v.
Reincke, 84 Ill. App. 3d 222, 225 (1980) (reasonable to infer a gun
was present inside a car after observing in plain view open boxes of
ammunition).
¶ 44 Certainly, based on the presence of a bullet and a reasonable
inference that a gun may be present in the vehicle, it was reasonable
for Officer Alcott and Detective Johnson to suspect that their safety
was in danger. As Terry instructs, “[t]he officer need not be
absolutely certain that the individual is armed; the issue is whether a
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reasonably prudent man 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. Based on the circumstances of this case, we believe that
question must be answered affirmatively.
¶ 45 Similarly, because Officer Alcott and Detective Johnson could
reasonably suspect that their safety was in danger, it was reasonable
for them to order defendant and his two passengers out of the vehicle
and search them for weapons. In fact, when an officer has a
reasonable suspicion during an investigatory stop that the individual
may be armed and dangerous, the officer is permitted to take
necessary measures to determine whether the person is armed and to
neutralize any threat of physical harm. Terry, 392 U.S. at 24.
¶ 46 Although defendant and his two passengers were handcuffed,
contrary to defendant’s suggestion, handcuffing does not
automatically transform a Terry stop into an illegal arrest. United
States v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989); see also United
States v. Kapperman, 764 F.2d 786, 790 n.4 (11th Cir. 1985)
(“neither handcuffing nor other restraints will automatically convert
a Terry stop into a de facto arrest requiring probable cause”); United
States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983) (when reasonably
necessary, the use of handcuffs does “not necessarily convert a Terry
stop into an arrest necessitating probable cause”); People v. Johnson,
387 Ill. App. 3d 780, 791 (2009) (“[h]andcuffing of a suspect, alone,
may not convert a Terry stop into an arrest, depending on the
circumstances”). Ultimately, the propriety of handcuffing during a
Terry stop depends on the circumstances of each case. See Glenna,
878 F.2d at 972.
¶ 47 Here, we believe that the handcuffing was reasonable and a
necessary measure because the officers were outnumbered, it was
dusk, and they could reasonably suspect that one or more of the three
individuals in defendant’s car possessed a gun or would be able to
access a gun inside the vehicle if they were not secured by handcuffs.
As our appellate court has recognized, in the context of a Terry stop,
“[t]he law is clear that the determination that handcuffs or other forms
of restraint were reasonable and necessary must be based on the
totality of the circumstances actually confronting the officer, not on
generalizations or remote possibilities.” People v. Arnold, 394 Ill.
App. 3d 63, 72 (2009). Furthermore, defendant does not allege, and
nothing in the record suggests, that the police officers used excessive
force or that his brief detention while handcuffed and searched was
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overly intrusive or otherwise exceeded the scope of a limited search
for weapons. See Terry, 392 U.S. at 25 (protective search for
weapons during investigatory stop must be limited to that necessary
for the discovery of weapons that could be used to harm officers or
others nearby).
¶ 48 Following the officers’ recovery of a total of six .454-caliber
bullets from the plastic bag and defendant’s person, the officers’
reasonable suspicion of a gun being present was obviously not
dispelled. Instead, as the State argues, the quickly developing
situation and the officers’ reasonable suspicion that a gun may be
present continued to escalate as the officers recovered additional
bullets. See Terry, 392 U.S. at 30-31 (noting that when nothing in the
initial stages of the encounter dispel the officer’s reasonable fear for
his safety, he is permitted to conduct a limited search for weapons);
see also Gant, 556 U.S. at 352 (Scalia, J., concurring) (in the context
of a protective search under Long “the possibility of access to
weapons in the vehicle always exists, since the driver or passenger
will be allowed to return to the vehicle when the [the incident] is
completed”). Thus, under the circumstances of this case, and
consistent with Long’s extension of Terry to permit protective
searches of a vehicle’s passenger compartment during a Terry stop,
Officer Alcott and Detective Johnson, acting on a reasonable fear for
their safety, properly searched the passenger compartment of
defendant’s vehicle and recovered the .454-caliber handgun under the
front passenger floor mat.
¶ 49 We disagree with defendant’s contention, accepted by the lower
courts, that Officer Alcott and Detective Johnson were required to
first ask him whether he had a valid FOID card before ordering
defendant and his passengers out of the car and searching them.
Effectively, defendant argues that the officers should have eliminated
any legal explanation for his possession of the bullet in the center
console, i.e., established defendant was committing a weapons
offense, before investigating further or suspecting him of being
potentially dangerous.
¶ 50 The problem with defendant’s argument is that it ignores Terry’s
clear instruction that “a perfectly reasonable apprehension of danger
may arise long before the officer is possessed of adequate information
to justify taking a person into custody for the purpose of prosecuting
him for a crime.” Terry, 392 U.S. at 26-27. The focus in Terry on
protective weapon searches is the officer’s reasonable belief that his
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safety or the safety of others is in danger, regardless of whether
probable cause exists to arrest for a crime. Terry, 392 U.S. at 27.
Thus, Terry does not support defendant’s assertion that the officers
here were first required to prove he possessed the bullet illegally.
¶ 51 Even assuming arguendo that defendant possessed a valid FOID
card, that does not necessarily mean that Officer Alcott and Detective
Johnson would have had no reasonable basis to suspect their safety
was in danger. Notably, the United States Supreme Court has
determined that the validity of a Terry protective weapon search does
not always depend on whether the weapon is possessed illegally. See
Adams v. Williams, 407 U.S. 143, 146 (1972) (concluding that a
protective search for weapons under Terry may be “equally necessary
and reasonable, whether or not carrying a concealed weapon violated
any applicable state law”). Although the circumstances will vary with
each case, the risk to a police officer posed by a potentially armed
individual is not always eliminated simply because the weapon is
possessed legally.
¶ 52 Accordingly, consistent with Terry and Long, we conclude that
defendant’s fourth amendment constitutional rights were not violated
by the officers’ conduct under the circumstances of this case.
Following the initial lawful Terry stop and the observation of the
bullet in plain view in defendant’s center console, the conduct of
Officer Alcott and Detective Johnson was justified by their
reasonable suspicion that a gun was present that threatened their
safety. The officers’ conduct and resulting protective searches were
properly limited to locating that gun and neutralizing the threat.
Consequently, we conclude that the recovered bullets and handgun
are admissible as evidence. See Terry, 392 U.S. at 31 (weapons
seized during a protective search for weapons during a Terry stop are
admissible).
¶ 53 Respectfully, the dissent is mistaken when it frames the issue in
this appeal. Here, the issue has always been whether the police
officers’ observation of the bullet justified their subsequent actions
under Terry.
¶ 54 Although both lower courts found in defendant’s favor and
suppressed all of the recovered evidence, neither lower court based
its judgment on the reasoning advanced by the dissent here—the lack
of reasonable suspicion under Terry. Infra ¶ 104 (Burke, J.,
dissenting, joined by Freeman, J.). To the contrary, the trial court
initially found that the recovered bullets were properly admitted under
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Terry. On reconsideration, however, the trial court found that all of
the recovered evidence should be suppressed because the officers did
not obtain probable cause after they failed to ask defendant whether
he possessed a valid FOID card.
¶ 55 Similarly, the appellate court majority concluded that all of the
recovered evidence should be suppressed based on the lack of
probable cause for a search incident to arrest. Notably, even though
finding in defendant’s favor and refusing to consider the merits of the
State’s argument under Terry, the appellate court majority, whose
judgment the dissent would affirm, nevertheless determined that,
initially, “the officers engaged in a lawful Terry stop.” 407 Ill. App.
3d at 310. In other words, the propriety of the initial stop under Terry
was not contested in the lower courts. Illustrating this point, even the
appellate court majority and dissent agreed that the incident began as
a lawful Terry stop. See 407 Ill. App. 3d at 310 (majority concluding
“officers engaged in a lawful Terry stop”); 407 Ill. App. 3d at 311
(Lampkin, J., dissenting) (agreeing that the initial encounter was a
proper Terry stop).
¶ 56 Notably, the dissent fails to cite any support for their position in
defendant’s brief. Supporting our interpretation of defendant’s
argument, defendant clearly states in his brief that “[t]he only other
factor giving rise to a Terry evaluation is an observation of a single
round of what appeared to be rifle ammunition sticking out of the
plastic bag in the center console.” Appellee brief at 3. Similarly, a few
sentences later, defendant contends that although the officers
observed a bullet in plain view, “[t]here is nothing in the record as to
why, according to Terry, the officers did not make ‘reasonable
inquiries’ as to the defendant’s possession of a valid FOID card.”
Appellee brief at 4. Thus, as we identified above (supra ¶ 29),
defendant contests the State’s position that Terry justifies the officers’
conduct after they observed the plain-view bullet in defendant’s
center console. In particular, defendant argues that Terry does not
support the officers’ conduct because the surrounding circumstances
in this case were “absolutely benign.” Appellee brief at 1. Although
we reject defendant’s characterization of those circumstances,
contrary to the dissent’s position, we address his claim as he presents
it.
¶ 57 Furthermore, even assuming arguendo that defendant’s position
was ambiguous in his appellee brief, any ambiguity was eliminated
at oral arguments. See, e.g., Jackson v. Board of Election
-15-
Commissioners, 2012 IL 111928, ¶ 72 (Freeman, J., concurring in
part and dissenting in part, joined by Burke, J.) (noting that “oral
argument can play an important part in an appeal because attorneys
have, at times, conceded points during the argument that were not
conceded in the written brief”). Here, in response to questioning from
Justice Theis at oral argument, defense counsel conceded that Terry
would have allowed the officers, upon seeing the bullet, to ask the
occupants out of the car and subject them to a pat-down search.
Indeed, when Justice Theis asked if Terry applied “right there” when
the occupants were ordered out of the car, defense counsel said “yes,”
and when Justice Theis asked if, pursuant to Terry, the officers had
a right to a pat-down search, defense counsel replied, “yes, yes of
course.”
¶ 58 Obviously, defendant could not have made these concessions if
he did not agree that this incident began as a proper Terry stop. If, as
the dissent maintains, defendant actually meant to argue that Terry
was inapplicable or was not yet triggered, he would have answered
“no” in response to Justice Theis’s clear questioning. Defendant did
not respond in that fashion. Instead, defendant repeatedly argued that,
under Terry, the observation of a plain-view bullet was insufficient
to provide the officers with a reasonable belief that their safety was
in danger. In our view, there is no reason that this court should refuse
to accept defendant’s presentation of his argument.
¶ 59 Thus, we have simply addressed defendant’s argument as he
presents it. If the dissent wishes to address defendant’s argument in
a different fashion, it may. Typically, though, “we rely on the parties
to frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present.” (Internal quotation marks
omitted.) People v. Givens, 237 Ill. 2d 311, 323 (2010). We continue
to adhere to that principle here.
¶ 60 Effectively, the dissent contends that Terry does not permit a
protective search for weapons when investigating officers, standing
outside a vehicle that contains three occupants, observe a plain-view
bullet in the vehicle and the officers reasonably suspect that one or
more of the occupants may be armed and pose a danger to the
officers’ safety. Infra ¶¶ 94-104 (Burke, J., dissenting, joined by
Freeman, J.). The dissent, however, provides no support for its
position that, under the circumstances of this case, the officers were
required under Terry to ignore the bullet in plain view, or otherwise
discount the officers’ reasonable belief that their safety was in danger.
-16-
Supporting our conclusion here, however, is ample authority
upholding protective sweeps of vehicles when the police observe
ammunition in plain view. See, e.g., United States v. Baker, 47 F.3d
691 (5th Cir. 1995) (search of passenger compartment of vehicle
supported by, inter alia, observation of bullets in plain view on car’s
floorboard); United States v. Shkreli, 985 F.2d 576 (9th Cir. 1993)
(police entitled to search vehicle for weapon after observing three live
nine-millimeter bullets and one empty nine-millimeter bullet casing
in plain view in the rear of the passenger compartment of the
defendant’s car and finding two loaded ammunition magazines during
a consensual search of the glove compartment); United States v.
Richards, 967 F.2d 1189 (8th Cir. 1992) (limited sweep of passenger
compartment permissible after officer observed .22-caliber cartridges
sitting in plain view in the passenger compartment); United States v.
See, No. 1:07 CR 367, 2007 WL 4287853 (N.D. Ohio Dec. 5, 2007)
(observation of bullet in plain view on car’s floorboard allowed
officers to conduct cursory sweep for weapons under driver’s seat),
rev’d on other grounds, 574 F.3d 309 (6th Cir. 2009); State v. Garcia
Garcia, 821 P.2d 191 (Ariz. Ct. App. 1991) (officer safety concerns
allowed police to search passenger compartment of vehicle after they
observed bullets on the front seat, even though occupants had been
removed from car); State v. Conger, 375 N.W.2d 278 (Iowa App.
1985) (police observation of defendant dropping a bullet after he was
stopped for speeding allowed police to search the passenger
compartment of the defendant’s truck); State v. Wright, 763 P.2d 49(Nev. 1988) (observance of bullet in plain view on car’s floorboard
could reasonably indicate the presence of a gun and thus allowed
police to search the passenger compartment for weapons to ensure
their safety); People v. Ragland, 549 N.Y.S.2d 249 (N.Y. App. Div.
1989) (police who stopped defendant’s car for suspected traffic
violation and noticed box of bullets in plain view had right to order
defendant out of car and frisk him for weapons); People v. Catalano,
512 N.Y.S.2d 626, 630 (N.Y. Sup. Ct. 1987) (“[a] question not
presented here is whether the police initially had sufficient
information to justify a search of the car (the sight of the bullet in
open view did that”(emphasis omitted)); Commonwealth v. Glessner,
486 A.2d 521, 523 (Pa. Super. Ct. 1985) (“[w]hen Officer Jackson
observed live bullets on the floor of the car, he could then conduct a
patdown of [the defendant’s] person for his own safety”); Carter v.
State, No. C14-92-01023-CR, 1994 WL 400916 (Tex. App. Aug. 4,
1994) (officer’s observance of box of bullets when driver opened the
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glove box allowed him to ask driver to submit to a pat-down search;
it was reasonable to assume that if bullets were present, a gun was
present); People v. Magras, Nos. F297/2009-F299/2009, 2010 WL
7371465 (V.I. Mar. 26, 2010) (observation of ammunition on car’s
floorboard allowed officers to conduct a protective sweep of vehicle’s
passenger compartment); State v. Reyes, No. 32481-4-II, 2006 WL
1321290 (Wash. Ct. App. May 16, 2006) (observance of bullets in
plain view on car’s floor allowed a protective sweep of passenger
compartment and search of an unclaimed backpack that was near the
bullets); cf. United States v. Thomas, No. 06-5012-01-CR-W-FJG,
2007 WL 62694 (W.D. Mo. Jan. 8, 2007) (after retrieving bullets
from defendant’s pocket, a search of the vehicle and further detention
were appropriate under Terry, based on heightened suspicion of
criminal activity); People v. Morales, 603 N.Y.S.2d 319, 320 (N.Y.
App. Div. 1993) (“[t]he presence of bullets permits an inference that
a gun is near at hand, and would constitute probable cause for a
search [citation] even absent the factor of threat to personal safety”);
State v. Olofson, 568 N.W.2d 786 (Wis. Ct. App. 1997) (discovery of
bullets during pat down of defendant allowed police to search vehicle
for weapons); State v. Williamson, 206 N.W.2d 613 (Wis. 1973)
(after police found bullets on driver’s person during a pat-down
search, they were entitled to search the vehicle for a gun).
¶ 61 Ultimately, the dissent’s position would require us to hold that
police officers must ignore a bullet in plain view and first establish
that defendant committed a crime before conducting a protective
search for weapons. Terry, however, clearly rejected such a
conclusion when it determined that “a perfectly reasonable
apprehension of danger may arise long before the officer is possessed
of adequate information to justify taking a person into custody for the
purpose of prosecuting him for a crime.” Terry, 392 U.S. at 26-27.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated above, we reverse the judgments of the
appellate court and circuit court that suppressed the evidence in this
case.
¶ 64 Appellate court judgment reversed.
¶ 65 Circuit court judgment reversed.
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¶ 66 JUSTICE THOMAS, specially concurring:
¶ 67 On the evening of June 29, 2006, a detective and a police officer
approached a vehicle to determine why it was blocking the entrance
to a hotel parking lot. Shortly after arriving at the vehicle, the officers
observed immediately accessible ammunition in the center console
and took decisive action to protect themselves. According to two
members of this court, this was unreasonable under the fourth
amendment. I submit that the unreasonable thing would be to deny
police officers in this situation the right to protect themselves. I thus
concur in the majority opinion, but write separately to explain more
fully why I believe that the majority is correct and the dissent is not.
¶ 68 First, conspicuously absent from the dissent is the citation of any
case law denying the police the right to conduct a protective search
after they have observed ammunition in plain view while questioning
the occupants of a vehicle. Certainly the fact that the dissent cannot
cite a single case supporting its view calls into question its
conclusion. Infra ¶ 100 (Burke, J., dissenting, joined by Freeman, J.).
Moreover, as clearly demonstrated by the majority opinion, the
dissenting justices consider the majority position to be erroneous only
because they refuse to acknowledge the concessions that defense
counsel made at oral argument.1 As noted by the majority, defense
counsel specifically conceded that Terry would have allowed the
officers to conduct a pat-down search of the vehicle’s occupants. I do
not see how defense counsel could make this concession without also
conceding that this began as a proper Terry stop, and the dissent
makes no effort to explain how this would be possible.
¶ 69 Second, even apart from defendant’s concession, I believe that the
police had the requisite reasonable suspicion of criminal activity. That
suspicion was fully formed when they saw, immediately accessible to
the vehicle’s occupants, “the largest pistol round” they had ever seen.
I disagree with the dissent’s conclusion that the police possessed
nothing more than an “inarticulate hunch.” Id. ¶ 95. “While
‘reasonable suspicion’ must be more than an inchoate ‘hunch,’ the
Fourth Amendment only requires that police articulate some minimal,
objective justification for an investigatory stop.” United States v.
Givan, 320 F.3d 452, 458 (3d Cir. 2003). Moreover, “reasonable
suspicion” is not only less than probable cause but “considerably less
1
The oral argument may be viewed on this court’s website at
http://state.il.us/court/Media/On_Demand.asp.
-19-
than proof of wrongdoing by a preponderance of the evidence.”
(Emphasis added.) United States v. Sokolow, 490 U.S. 1, 7 (1989). In
determining whether reasonable suspicion exists, the totality of the
circumstances must be considered. Id. at 8.
¶ 70 In determining that the police lacked the requisite reasonable
suspicion, the dissent cites two cases—neither of which addresses the
issue of whether the police may search a vehicle for weapons when
they see a bullet in plain view—for the proposition that “[a] bullet is
not contraband.” Infra ¶ 97 (Burke, J., dissenting, joined by Freeman,
J.). But that is not the point. The point is that “[t]he presence of a
bullet could reasonably indicate the presence of a gun” (Wright, 763
P.2d at 50), and “[w]hile possession of ammunition *** may be legal
***, innocent conduct may nonetheless create reasonable suspicion
that criminal activity is afoot” (Magras, 2010 WL 7371465, at *6).
Again, we must consider the totality of the circumstances, and context
is key. If the police see a box of rifle shells on the front seat of a
pickup truck in downstate Illinois on a fall afternoon, and there is a
gun rack on the back of the truck and the driver is wearing a
camouflage hunting vest and blaze orange cap, then the presence of
ammunition likely does not create a reasonable suspicion of criminal
activity. Here, by contrast, the police were in an urban setting at dusk,
three individuals were parked in a vehicle with the engine running,
blocking the entrance to a hotel parking lot, and the officers observed
what looked like the largest pistol round they had ever seen in a
plastic bag in the center console. I believe that this created the
requisite minimal, objective justification for a Terry stop. As the State
points out, for instance, a person commits the Class 4 felony of
aggravated unlawful use of a weapon if he or she has an uncased and
unloaded firearm in a vehicle and the ammunition is immediately
accessible. See 720 ILCS 5/24-1.6(a)(1), (3)(B) (West 2010). Here,
the ammunition was immediately accessible, and the presence of the
ammunition reasonably indicated the presence of a gun. Certainly this
created a reasonable suspicion that defendant was committing
aggravated unlawful use of a weapon.2
2
The dissent asserts that the police had nothing more than an
“inarticulate hunch” that a handgun was being transported illegally in the
vehicle. Infra ¶ 95 (Burke, J., dissenting, joined by Freeman, J.). This is
clearly not correct. The suspicion was based on the immediately accessible
handgun ammunition. If immediately accessible handgun ammunition in
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¶ 71 Next, the dissent takes it as a given that the police may never
engage in a protective weapons search for their own safety unless they
have a reasonable, articulable suspicion of criminal activity. See infra
¶ 109 (Burke, J., dissenting, joined by Freeman, J.). In fact, this is
actually a hotly contested issue in the federal courts, with some
circuits taking that view, but others holding that the police may
conduct protective frisks for weapons even during consensual
encounters. See 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at
841 n.13 (5th ed. 2012) (noting conflict in the courts). For instance,
the Fourth and Eighth Circuits have held that a frisk requires
suspicion of criminal activity. See United States v. Burton, 228 F.3d
524, 528 (4th Cir. 2000); United States v. Gray, 213 F.3d 998 (8th
Cir. 2000).3 By contrast, the First, Ninth, and Eleventh Circuits have
upheld frisks solely on the basis of officer safety. See United States
v. Romain, 393 F.3d 63, 75-76 (1st Cir. 2004); United States v.
Orman, 486 F.3d 1170, 1176-77 (9th Cir. 2007);4 United States v.
Bonds, 829 F.2d 1072, 1075 (11th Cir. 1987). The principal reasons
the center console does not at least create a reasonable suspicion that a
firearm is being transported illegally, one wonders what evidence would do
so.
3
The Eighth Circuit has not been consistent, however, upholding frisks
based solely on safety concerns in United States v. Ellis, 501 F.3d 958, 961-
63 (8th Cir. 2007) (“[j]ustification for a protective pat-down based upon a
fear for officer or bystander safety can arise after the commencement of
either an investigative stop or a consensual encounter”), and United States
v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000) (“Davis’s assertion that the
suspicion justifying a protective frisk must be present at the outset of an
investigative stop also fails to recognize the analytical distinction between
investigative stops and protective frisks. The danger to officer safety that
justifies a protective search may arise after a consensual encounter or
investigative stop has commenced.”).
4
Attempting to demonstrate that there is no conflict in the federal
courts, the dissent argues that Orman was overruled by Liberal v. Estrada,
632 F.3d 1064 (9th Cir. 2011), which is an interesting assertion given that
Liberal involved an unlawful stop rather than a consensual encounter, did
not discuss consensual encounters in any fashion, and did not cite Orman.
See generally Department of Public Works & Buildings v. Farina, 29 Ill. 2d
474, 479-80 (1963) (judicial opinions must be read in light of facts
involved and are authority only for what is actually decided).
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several courts have upheld the right to frisk for weapons during
consensual encounters were thoroughly spelled out by Justice
Baldock in his dissent in United States v. House, 463 F. App’x 783,
793 (10th Cir. 2012) (Baldock, J., dissenting): first, “the strong
governmental interest in officer safety is present even in consensual
encounters”; second, “requiring reasonable suspicion of criminal
activity would hamstring officers’ ability to investigate suspicious
behavior”; and third, “requiring reasonable suspicion of criminal
activity before a frisk would prevent officers from taking ‘reasonable
steps to ensure their safety’ during consensual encounters.” Id. at 791-
93. Moreover, the reason that Justices Burke and Freeman are forced
to rely on Justice Harlan’s special concurrence in Terry is that the
Supreme Court in Terry did not limit the right to search for weapons
only to those cases in which the police have a reasonable suspicion of
criminal activity. Rather, the Terry majority held that the rules for
protective frisks “will have to be developed in the concrete factual
circumstances of individual cases.” Terry v. Ohio, 392 U.S. 1, 29
(1968).
¶ 72 According to the dissent, this conflict was put to rest by Arizona
v. Johnson, 555 U.S. 323 (2009), a decision that did not involve
consensual encounters. The dissent is correct that the government in
that case argued that the police do not always need a reasonable
suspicion of criminal activity before conducting a frisk. However, the
attorneys for both the State of Arizona and the United States argued
that the Court did not need to resolve that issue if it found that the
passengers had been lawfully seized, and that is what the Court
ultimately determined. As that Court has itself pointed out, the words
of its opinions must be read in light of the facts under discussion.
Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).
¶ 73 The dissent notes that, at the oral argument in Johnson, Justice
Stevens was skeptical of the government’s argument. The dissent
does not mention, however, that Chief Justice Roberts and Justice
Breyer were equally as skeptical of the defendant’s argument that the
police may never act to protect themselves absent a reasonable
suspicion of criminal activity. For instance, Chief Justice Roberts
pointed out that there may be a situation in which a person who
appears to be armed and dangerous approaches an officer, instead of
vice versa. Chief Justice Roberts asked if the rule was like that of the
Old West where “the sheriff has to wait for the defendant to draw
first.” He then expressed skepticism that an officer who finds himself
-22-
in a situation where he may be shot cannot do anything about it, “not
even a simple pat down.” Transcript of Proceedings, Arizona v.
Johnson, at 30 (Dec. 9, 2008) (Roberts, C.J.). Justice Breyer then
raised a concern that is the same as one that I raise later in this special
concurrence: there may be situations in which officers who are not
investigating crimes but engaging in some other legitimate police
activity come into close contact with people whom they believe to be
armed and dangerous:
“Suppose we go beyond. I mean, once we go beyond, I
become a little at sea as to what the answers are because
policemen do things other than investigate crime.
A policeman is on protective duty. The individual he is
protecting is approached by a member of the Crips gang, who
has a bulge in his pocket. Can the police, with reasonable
grounds to think that the person is armed, pat down that
person? Or is he supposed to wait until the gun comes out of
the pocket and the person who is being protected is shot?
A policeman is on a bridge. Somebody stops the car in the
middle of the bridge. Traffic is held up in all directions. The
policeman goes to try to remove the car from the bridge. In
the back seat is a member of the Crips gang with a bulge in
his pocket. Is the policeman supposed to ignore that?
I mean, policemen do many things, and once you tell me
that we’re going beyond the facts of this case, I can think of
all kinds of hypotheticals that aren’t so hypothetical, and I
become uncertain about when the policeman can and when he
cannot.
So how do you respond?” Transcript of Proceedings,
Arizona v. Johnson, at 46-47 (Dec. 9, 2008) (Breyer, J.).
I simply cannot agree with the dissent’s suggestion that the Supreme
Court meant to put all of these difficult questions to rest by not
addressing them in a case in which they were not required to do so.
¶ 74 Regardless, however, even if one accepts the view that the police
generally are not allowed to frisk for their own safety during
consensual encounters, the dissent fails to acknowledge that this case
falls within an exception to that rule. Here, the police did not know
that defendant and his companions were dangerous until they were
already in their presence. No one disputes that the police had a right
to approach defendant’s vehicle and ascertain why defendant was
-23-
blocking the entrance to the hotel’s parking lot. Only after the police
were already at the vehicle did they have reason to believe that
defendant and his companions were armed and dangerous, and at this
point it was too late for the officers to avoid the encounter. The
dissent cites Professor LaFave for the proposition that “ ‘if an officer,
lacking the quantum of suspicion required by Terry to make a forcible
stop, instead conducts a non-seizure field interrogation, he may not
frisk the person interrogated upon suspicion he is armed.’ ” Infra ¶ 99
(Burke, J., dissenting, joined by Freeman, J.) (quoting 4 Wayne R.
LaFave, Search and Seizure § 9.6(a), at 841 (5th ed. 2012)). The
reason given by Professor LaFave is that “in such a case the officer
may protect himself by not engaging in the confrontation.” 4 Wayne
R. LaFave, Search and Seizure § 9.6(a), at 841-43 (5th ed. 2012). The
dissent neglects to inform the reader of the next two sentences in
Professor LaFave’s treatise: “But there is a limited exception to the
latter principle. If the officer has commenced a nonseizure
confrontation without a pre-existing reasonable suspicion supporting
a frisk, but such suspicion suddenly appears (most likely because of
the suspect’s conduct), then the officer is entitled to frisk for his own
protection.” Id. at 843. That is precisely what happened here. When
the officers approached the vehicle, they had no reason at all to
suspect that the vehicle’s occupants were armed and dangerous, so it
makes no sense to argue that they should have avoided the encounter.
Only after the nonseizure interrogation had commenced did they
develop a reasonable suspicion that the vehicle’s occupants were
armed and dangerous. Accordingly, the officers were entitled to frisk
the vehicle’s occupants. Id. Thus, even under the dissent’s view of the
law, the search here was permissible under an exception to the rule
that the dissent relies upon. In other words, the entire dissent is spent
setting up and knocking down a straw man.
¶ 75 The dissent would leave the officers with a Hobson’s choice: (1)
simply leave the scene, knowing that three young men are in a car
blocking the entrance to a motel parking lot at night with
ammunition—and quite possibly a firearm—in the vehicle; or (2)
continue to question the men, thus putting their own lives at risk in a
situation in which they are outnumbered and they know there is quite
possibly a firearm in the car. In his House dissent, Justice Baldock
explained why several federal circuits have been unwilling to put the
police in such a position:
-24-
“[R]equiring reasonable suspicion of criminal activity before
a frisk would prevent officers from taking ‘reasonable steps
to ensure their safety’ during consensual encounters.
Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 108 L.
Ed. 2d 276 (1990). Under this approach, an officer only has
two options if he suspects a person he has consensually
encountered may be armed and dangerous. First, he may
choose to end the encounter and walk away. This is a
nonsensical option, because it requires the officer to abandon
the legitimate and non-intrusive performance of his duties and
exposes him to potential danger in effectuating his retreat.
Second, the officer may continue asking questions in hopes of
acquiring adequate suspicion of criminal activity to justify a
frisk. But this requires the officer to remain in a dangerous
situation without taking any steps to ensure his safety.
Officers should not be forced to decide between these equally
bad options.” House, 463 F. App’x at 793-94 (Baldock, J.,
dissenting).
The touchstone of the fourth amendment is reasonableness (United
States v. Knights, 534 U.S. 112, 118 (2001)), and the choice that the
dissent offers to police officers is not reasonable. If the issue were
squarely before us, I would be inclined to agree with those circuits
that have not required, in every case, that the police have a reasonable
suspicion of criminal activity before conducting a protective frisk for
weapons. However, for two reasons, it is not necessary to resolve that
question today: first, the police had the requisite reasonable suspicion
of criminal activity, and second, even if they did not and this
remained at all times a consensual encounter, then the frisk was
permissible under an exception that allows for a frisk when the
reasonable suspicion that a person is armed and dangerous arises after
the consensual encounter has already commenced.
¶ 76 Finally, one related point that I will mention—but not dwell upon
as the State does not argue it—is that it appears that this encounter
began as a perfectly proper exercise of the police’s community
caretaking function. Determining why a car is blocking the entrance
to a business’s parking lot would seem to be precisely the type of
function we described in People v. Luedemann, 222 Ill. 2d 530, 545-
46 (2006), as being within the type of duties that police officers
-25-
perform unrelated to the investigation of crime.5 In his treatise,
Professor LaFave explains that there are instances other than
investigating a suspect for possible criminal behavior when the police
may find themselves in the presence of a person they believe to be
armed and dangerous. 4 Wayne R. LaFave, Search and Seizure
§ 9.6(a), at 839 (5th ed. 2012). He notes that the proposition that the
police may avoid a person they believe to be dangerous applies only
when the police officer has unnecessarily put himself in a position of
danger by not avoiding an individual he believes to be armed and
dangerous. By contrast, he explains that the officer may conduct a
protective frisk when he has “some legitimate basis for *** being in
immediate proximity to the person.” (Emphasis added.) Id. In the
footnote supporting this statement, Professor LaFave cites United
States v. King, 990 F.2d 1552 (10th Cir. 1993), which held that,
where a police officer as part of his community caretaking function
approaches a stopped car in a traffic jam, he was entitled for self-
protection to order the driver out of the car upon seeing a gun on the
seat. 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at 840 n.8 (5th
ed. 2012). This certainly suggests that Professor LaFave recognizes
that, if an officer’s community caretaking function brings him into
close proximity to a person he believes to be armed and dangerous,
then he has the “legitimate basis” that would allow him to conduct a
protective weapons search. This discussion should also make clear
5
The dissent appears to be confused by my use of the term “community
caretaking,” because that is a term that the courts use to uphold seizures as
reasonable under the fourth amendment when the police are engaged in
activities other than the investigation of crime. Infra ¶¶ 116-17 (Burke, J.,
dissenting, joined by Freeman, J.). But, as we explained in Luedemann, the
term “community caretaking” “refers to a capacity in which the police act
when they are performing some task unrelated to the investigation of
crime.” Luedemann, 222 Ill. 2d at 545. My point in using the term here is
simply to illustrate that there are situations other than the investigation of
criminal activity in which an officer’s legitimate job duties may bring him
into close proximity to an individual he believes is armed and dangerous
and that it is not reasonable to deny these officers the right to protect
themselves. By upholding seizures as reasonable under the fourth
amendment when officers are acting in a community caretaking capacity,
the courts have obviously not set forth all of the rules that apply to officers
acting in such a capacity. However, if it would help to avoid any confusion,
the reader is certainly free to substitute some other term such as “public
safety” or “public assistance” for “community caretaking.”
-26-
that the dissent is simply wrong when it flatly asserts that the police
must always suspect someone of criminal activity before conducting
a frisk. Infra ¶ 113 (Burke, J., dissenting, joined by Freeman, J.).6
Again, Professor LaFave is careful to word the requirement as that the
police must have some legitimate basis for being in the immediate
proximity of the person. 4 Wayne R. LaFave, Search and Seizure
§ 9.6(a), at 839 (5th ed. 2012); see also id. at 857 (when
distinguishing between suspicion of crimes that support a frisk all on
their own and those that require a suspicion that the subject is armed
and dangerous, treatise lists in latter category “legitimate noncriminal
reason[s]” and “when the officer’s duties otherwise necessitate his
being in close proximity to the individual”). And, notably, the dissent
never explains why it believes that it is unreasonable under the fourth
amendment for a police officer to take immediate action to protect
himself when his legitimate job duties bring him into close proximity
with an individual that he believes to be armed and dangerous.
¶ 77 Keeping in mind that the touchstone of the fourth amendment is
reasonableness, it makes perfect sense that police officers should be
able to protect themselves in these situations. It cannot be the case
that what is reasonable under the fourth amendment is that police
officers who stop vehicles for even the most minor traffic violations
can do protective sweeps for their safety when they see bullets in
plain view, but police officers who are acting in a legitimate
community caretaking capacity may not. Regardless, however, I
believe that this determination can be put off to another day, as the
State has not made this argument, and I believe that, here, the police
did have a reasonable suspicion of criminal activity.
¶ 78 JUSTICE BURKE, dissenting:
¶ 79 The threshold question presented in this appeal is whether the
mere sight of a single bullet inside an occupied parked car provides
a police officer with the reasonable suspicion of criminal activity
required to seize a person under Terry v. Ohio, 392 U.S. 1 (1968).
The majority does not address this question, however, finding that
defendant has conceded the existence of reasonable suspicion of
6
Indeed, the principal case cited by the dissent for this proposition is
Johnson, a case in which the Supreme Court unanimously upheld the right
of the police to frisk people for whom they had no suspicion of criminal
activity.
-27-
criminal activity and the legality of his seizure. Because I do not agree
that defendant has conceded these issues, and because I believe the
police officers in this case lacked any reasonable suspicion of
criminal activity on the part of defendant, I must respectfully dissent.
¶ 80 I
¶ 81 The facts, briefly summarized, are as follows. On June 29, 2006,
at 8:45 p.m., Homewood police officer William Alcott and his
partner, Detective Johnson of the Glenwood police department, were
driving near the Super 8 Motel in East Hazel Crest, Illinois. The
officers were patrolling for underage parties at the motel. They saw
defendant’s parked car, which was idling near the motel’s front door
and blocking one of the two entrances to the parking lot. Defendant
was in the driver’s seat, and a second person was in the passenger
seat. The officers parked near defendant’s car, got out, and
approached. As they did so, a third individual exited the motel and
got into defendant’s car. Alcott approached the driver’s side window
and told defendant that he was blocking the entrance to the parking
lot. Defendant replied that they were there to pick up someone.
Johnson, who was located at the passenger side of the car, motioned
to Alcott and stated that a plastic bag was visible in the center
console. When Alcott shined his flashlight on the bag, he saw a single
bullet sticking out of the bag. Alcott described the bullet as looking
“almost *** like a rifle round” and as “the largest pistol round” he
had ever seen.
¶ 82 Upon seeing the bullet, Alcott ordered defendant and the two
passengers out of the car and immediately handcuffed all three
individuals at the front of the vehicle. Johnson then retrieved the
plastic bag from the center console. The plastic bag contained a total
of five live rounds of .454 ammunition. Alcott patted down defendant
and retrieved a sixth round of .454 ammunition from defendant’s
pants pocket. At that point, Johnson searched the vehicle’s interior
and discovered a .454 revolver under the front passenger floor mat.
The officers transported all three individuals to the police department.
¶ 83 Defendant was subsequently charged with several weapons
offenses. He filed a pretrial motion to quash arrest and suppress
evidence, which was ultimately granted by the circuit court. The
circuit court concluded that the initial approach by the police officers
to defendant’s car was a consensual encounter that did not implicate
the fourth amendment. However, according to the circuit court, the
-28-
removal of defendant from his car and subsequent handcuffing
constituted an arrest that was not supported by probable cause.
Accordingly, the circuit court ordered the suppression of the bullets
and revolver as the fruits of the unlawful arrest. The appellate court,
with one justice dissenting, affirmed. 407 Ill. App. 3d 294.
¶ 84 II
¶ 85 The fourth amendment to the United States Constitution, which
applies to the states via the fourteenth amendment (Mapp v. Ohio,
367 U.S. 643 (1961)), and article I, section 6, of the Illinois
Constitution of 1970 guarantee the right of the people to be free from
unreasonable searches and seizures. U.S. Const., amend. IV; Ill.
Const. 1970, art. I, § 6. Warrantless searches and seizures are
considered unreasonable under the federal and state constitutions
unless they fall within one of a few well-defined exceptions. People
v. Pitman, 211 Ill. 2d 502, 513 (2004). One such exception is the
“stop and frisk” recognized in Terry v. Ohio, 392 U.S. 1 (1968).
¶ 86 In its most recent decision addressing Terry, the United States
Supreme Court explained what is required for a stop and frisk to
comport with the fourth amendment:
“In a pathmarking decision, Terry v. Ohio, 392 U.S. 1 (1968),
the Court considered whether an investigatory stop
(temporary detention) and frisk (patdown for weapons) may
be conducted without violating the Fourth Amendment’s ban
on unreasonable searches and seizures. The Court upheld
‘stop and frisk’ as constitutionally permissible if two
conditions are met. First, the investigatory stop must be
lawful. That requirement is met in an on-the-street encounter,
Terry determined, when the police officer reasonably suspects
that the person apprehended is committing or has committed
a criminal offense. Second, to proceed from a stop to a frisk,
the police officer must reasonably suspect that the person
stopped is armed and dangerous.” Arizona v. Johnson, 555
U.S. 323, 326-27 (2009).
¶ 87 This court has consistently applied this two-part rule when
addressing the constitutionality of a stop and frisk (see, e.g., People
v. Close, 238 Ill. 2d 497, 505 (2010); People v. Flowers, 179 Ill. 2d
257 (1997); People v. Galvin, 127 Ill. 2d 153 (1989)), and has held
that the Terry standards are used to determine the propriety of
investigatory stops under article I, section 6, of the Illinois
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Constitution (People v. Thomas, 198 Ill. 2d 103, 109 (2001)). The
two-part rule has also been codified by our legislature in the Code of
Criminal Procedure (see 725 ILCS 5/107-14, 108-1.01 (West 2010)).
¶ 88 The State maintains that the police officers’ actions in this
case—ordering defendant out of his car, handcuffing him, patting him
down, and searching his car—were all part of a constitutionally valid
stop and frisk under Terry. Initially, the majority rejects the appellate
court’s conclusion that the State forfeited its Terry argument, finding,
instead, that the argument may be addressed on its merits. Supra
¶¶ 25-27. I agree with the majority that the State’s argument has not
been forfeited. I disagree, however, with the way in which the
majority goes on to frame its Terry analysis.
¶ 89 The majority finds that defendant has conceded the existence of
reasonable suspicion of criminal activity and has conceded the
legality of his seizure by the police officers. Thus, according to the
majority, the first prong of the Terry rule is not at issue and the only
question before us is whether the second prong of the Terry rule has
been satisfied. I disagree.
¶ 90 As the majority itself acknowledges, defendant argues in his brief
that the officers’ actions in this case resulted in an “unlawful seizure.”
Supra ¶ 30. Defendant further maintains “that Officer Alcott and
Detective Johnson could not reasonably believe a crime was being
committed” and “that Terry does not support the officers’ conduct
because the surrounding circumstances in this case were ‘absolutely
benign.’ ” Supra ¶ 56. At oral argument defense counsel continued
with this theme. Counsel noted that “in a Terry situation there has to
be criminal activity afoot,” and stated that “Officer Alcott was
specifically asked [at the suppression hearing]—was there any
criminal activity of any kind? Answer—no.” Counsel argued
repeatedly that there was “no criminal activity” in this case and
nothing that “would give rise to suspicion of any criminal activity.”
This, of course, is the standard necessary to justify a seizure under the
first prong of Terry.
¶ 91 However, during oral argument, in response to a question from
the bench, counsel contradicted himself and stated that the officers
could, under Terry, order defendant from the car. Counsel then
immediately corrected himself and stated that “we should have a
distinction” between ordering and asking people out of their cars, that
the police here could only “ask” defendant out of the car and that the
police could only perform a “Terry-like inquiry.” Later, counsel
-30-
stated that police could conduct a pat down of defendant.7
Importantly, defense counsel did not attempt to reconcile his
contradictory statements and this court did not ask for clarification on
this point.
¶ 92 I take it as a given that contradictory statements made by an
attorney cannot form the basis of a binding concession, particularly
in a criminal case. Recognizing a concession in these circumstances
would require this court, after the fact, to pick which of counsel’s
statements to ignore and which to give credence to. And, indeed, that
is what the majority has done here. The majority does not dispute that
defense counsel repeatedly argued that there was nothing in this case
that “would give rise to suspicion of any criminal activity.” Yet, the
majority chooses to disregard these assertions. In my view, this is
improper. Whatever contradictory positions have been advanced by
defendant in this case, he has never retreated from the contention that
the police officers lacked reasonable suspicion of criminal activity. I
would address that argument.
¶ 93 III
¶ 94 As the circuit court held, the initial approach of the police officers
to defendant’s car was a consensual encounter. See People v.
Luedemann, 222 Ill. 2d 530, 552-53 (2006) (citing Florida v. Bostick,
501 U.S. 429, 434 (1991)). The consensual encounter escalated to a
seizure when defendant was ordered out of his car by the officers.
See, e.g., 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 595
(5th ed. 2012) (“the encounter becomes a seizure if the officer orders
the suspect to ‘freeze’ or to get out of the car”). Accordingly, the
threshold issue in this case is whether the seizure of defendant’s
person, which took place at the time that the officers ordered
defendant out of his parked car, was justified by the presence of
reasonable suspicion of criminal activity.
7
Confusingly, the majority relies on these statements to find that
defendant has conceded that his “initial encounter with the officers, before
he was ordered out of his car and handcuffed” was a seizure under Terry.
Supra ¶ 41. This, despite the fact that counsel’s statements had nothing to
do with the officer’s initial approach to defendant’s car, and despite the fact
that the circuit court expressly held that the initial approach was not a
seizure.
-31-
¶ 95 I agree with defendant’s assertion that the record is devoid of any
facts known to the police officers which might have amounted to
anything more than a hunch of criminal activity on defendant’s part.
See Terry, 392 U.S. at 22 (rejecting an “inarticulate hunch” as a basis
for a warrantless seizure). Defendant was not in a high-crime area at
the time he was seized. Nor had the police officers received any calls
of suspicious activity or crimes in the area. It was not late at night and
the location of defendant’s car, parked in front of a motel entrance,
was hardly unusual. Thus, there was nothing to indicate that
defendant was “in an unlikely place at an unlikely time.” People v.
McGowan, 69 Ill. 2d 73, 78 (1977).
¶ 96 When the officers approached defendant’s car and informed him
that he was blocking the entrance to the motel’s parking lot,
defendant stated that he was picking up someone. Defendant’s answer
was entirely consistent with the officers’ recent observation of an
individual exiting the motel and getting into defendant’s car. Further,
defendant never made any furtive movements or gestures, or appeared
agitated, angry or drunk, and there was nothing to indicate that the
officers could reasonably suspect they were about to be assaulted or
attacked in any way. In short, none of the factors typically associated
with establishing reasonable suspicion of criminal activity were
present. Instead, as defendant argues, “the circumstances in this case
were ‘absolutely benign.’ ”
¶ 97 The State relies on the presence of the bullet in the car to justify
defendant’s seizure. But no court has held that a bullet observed
inside a vehicle, standing alone, establishes the reasonable suspicion
of criminal activity that would justify a seizure under Terry. A bullet
is not contraband. See United States v. Blom, 242 F.3d 799, 808 (8th
Cir. 2001); United States v. Lemons, 153 F. Supp. 2d 948, 959 (E.D.
Wis. 2001) (ammunition is not immediately apparent as evidence of
unlawful activity because it may be used for hunting, recreational
target shooting, or otherwise in connection with a lawfully possessed
weapon). Thus, the seizure of defendant was not warranted absent
other facts to support a reasonable suspicion that defendant was
committing, or about to commit, some crime.
¶ 98 The State contends that the presence of the bullet made it
reasonable to suspect that defendant was committing the crime of
aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West
2010)), an offense which makes it illegal, inter alia, to carry a firearm
in a car if the weapon is uncased, unloaded and ammunition is
-32-
immediately accessible, or if the person possessing the firearm lacks
a firearm owner’s identification card (FOID card).8 See People v.
Zimmerman, 239 Ill. 2d 491, 497-500 (2010) (describing the offense).
¶ 99 Defendant, in response, does not dispute that the police officers
could, upon seeing the bullet, reasonably assume that a firearm was
present in the car. However, defendant notes that even under the
aggravated unlawful use of a weapon statute in existence at the time
defendant was seized, it was not per se “unlawful to carry or possess
a firearm in a vehicle.” And, as defense counsel maintained at oral
argument, the officers could not, simply from the sight of a bullet,
reasonably suspect that any firearm in the car was being carried
illegally. Thus, according to defendant, there was “not a scintilla of
evidence linking the ammunition to any form of criminal conduct.”
I agree.
¶ 100 Even if the presence of the bullet made it reasonable to assume
there was a gun somewhere in defendant’s car, the bullet provided no
information as to whether any such gun was cased, or uncased, or
whether any of the occupants of the car had a FOID card. In other
words, upon seeing a bullet in a car, and nothing else, the police
officers had to make a guess that an unseen firearm was being
transported illegally—the very thing that Terry holds is
impermissible. See Terry, 392 U.S. at 22 (intrusions upon fourth
amendment rights must be based on something “more substantial than
inarticulate hunches”).
¶ 101 Other courts have reached the same result, holding that the
knowledge of the presence of a firearm does not, by itself, provide
reasonable suspicion that the firearm is being transported or carried
illegally. See, e.g., Commonwealth v. Couture, 552 N.E.2d 538, 541
(1990) (“[T]here is absolutely no indication that the defendant in this
case was engaged in criminal activity. The mere possession of a
handgun was not sufficient to give rise to a reasonable suspicion that
the defendant was illegally carrying that gun, and the stop was
therefore improper under Fourth Amendment principles.”); United
States v. Lewis, 672 F.3d 232, 240 (3d Cir. 2012) (an informant’s tip
that the suspect had firearms in his car did not “permit an officer to
suspect—let alone reasonably suspect—that possession of either
8
This statute has recently been held unconstitutional. See Moore v.
Madigan, 702 F.3d 933 (7th Cir. 2012), rehearing en banc denied, 708 F.3d
901 (7th Cir. 2013).
-33-
firearm was illegal or that the firearms were being used in a criminal
manner”); United States v. McHugh, 639 F.3d 1250, 1257 (10th Cir.
2011) (suspicion that defendant had a weapon in the car, “standing
alone, does not establish reasonable suspicion” to justify a seizure
under Terry); United States v. Ubiles, 224 F.3d 213, 217 (3d Cir.
2000) (“a mere allegation that a suspect possesses a firearm, as
dangerous as firearms may be, [does not] justify an officer in stopping
a suspect absent the reasonable suspicion required by Terry” that the
firearm was possessed or carried illegally).
¶ 102 To be sure, if defendant, or the others in the car, had done
anything by way of movement or action to create a suspicion that the
officers were about to be assaulted, that would have provided the
reasonable suspicion of criminal activity to justify seizing defendant.
See, e.g., Narcisse, 927 N.E.2d at 446 (“When an individual appears
to be ready to commit violence, either against police officers or
bystanders, it is reasonable to believe that he is ‘about to commit a
crime,’ thus satisfying Terry’s first prong.”); 4 Wayne R. LaFave,
Search and Seizure § 9.6(a), at 843 (5th ed. 2012) (if the “suspect’s
conduct” creates a reasonable suspicion that violence is about to be
committed against an officer, the suspect may be seized). However,
nothing like that happened here.
¶ 103 Finally, it is worth noting the consequences that flow from
accepting the State’s argument regarding reasonable suspicion of
criminal activity. A bullet may be present in a car for any number of
reasons that have nothing to do with criminal activity. It may be left
over from a hunting trip when the car has not been fully cleaned out
or it may be in the car because the driver is taking it to the store to
know what type of ammunition to purchase. The State’s position
would hold that in these instances and, indeed, any time a bullet is in
an occupied parked car, a police officer may reasonably assume that
criminal activity is afoot and may, therefore, seize the occupant of the
car. This is an unreasonable result that sweeps far too broadly.
¶ 104 The mere sight of the bullet did not provide the police officers
with the reasonable suspicion of criminal activity required to seize
defendant under Terry. Accordingly, the stop and frisk of defendant
was constitutionally impermissible.
¶ 105 IV
¶ 106 Justice Thomas, specially concurring, offers several additional
points in support of the majority. I do not find these points persuasive.
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¶ 107 First, Justice Thomas contends that focusing on the lack of
reasonable suspicion of criminal activity in this case forces the police
officers into a “Hobson’s choice.” Supra ¶ 75 (Thomas, J., specially
concurring). But this contention rests on the false premise that it
would have been wrong for the police officers to let defendant go
after they had spoken with him. It would not have been. After
speaking with defendant, the officers lacked reasonable suspicion that
defendant was engaged in any criminal activity. It can hardly be
wrong to let a person go on his way when that person is not suspected
of any criminal activity.
¶ 108 Raising an argument not advanced by the State, Justice Thomas
also questions whether the seizure of defendant had to be justified by
reasonable suspicion of criminal activity. Specifically, Justice
Thomas suggests that it may have been permissible for the police
officers to escalate the consensual encounter with defendant into a
protective frisk absent any reasonable suspicion of criminal activity.
Supra ¶¶ 76-77 (Thomas, J., specially concurring). I cannot agree.
¶ 109 As the United States Supreme Court clearly stated in Johnson, the
threshold requirement for a stop and frisk is the existence of
reasonable suspicion of criminal activity. Johnson, 555 U.S. at 326.
Justice Harlan explained the rationale behind this requirement in
Terry:
“[I]f the frisk is justified in order to protect the officer during
an encounter with a citizen, the officer must first have
constitutional grounds to insist on an encounter, to make a
forcible stop. Any person, including a policeman, is at liberty
to avoid a person he considers dangerous. If and when a
policeman has a right instead to disarm such a person for his
own protection, he must first have a right not to avoid him but
to be in his presence. That right must be more than the liberty
(again, possessed by every citizen) to address questions to
other persons, for ordinarily the person addressed has an equal
right to ignore his interrogator and walk away; he certainly
need not submit to a frisk for the questioner’s protection.”
(Emphasis in original.) Terry, 392 U.S. at 32-33 (Harlan, J.,
concurring).
In other words, there is no “ ‘freestanding’ right to search based
solely upon officer safety concerns.” Speten v. State, 2008 WY 63,
¶ 23, 185 P.3d 25 (Wyo. 2008). Rather, the right to frisk for weapons
-35-
arises out of the “need for officer safety during an investigative
detention.” Id.
¶ 110 The requirement of reasonable suspicion of criminal activity has
been read broadly. Courts have allowed police officers, for example,
to frisk a companion of another person who is engaged in criminal
activity or is the subject of a criminal investigation in order to secure
the scene and protect the safety of the officer. See generally 4 Wayne
R. LaFave, Search and Seizure § 9.6(a), at 868-73 (5th ed. 2012). But
the underlying requirement remains: To protect the “ ‘sacred ***
right of every individual to the possession and control of his own
person, free from all restraint or interference of others, unless by clear
and unquestionable authority of law’ ” (Terry, 392 U.S. at 9 (quoting
Union Pacific R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891)), a
police officer conducting a stop and frisk must have, in some form,
reasonable suspicion of criminal activity. See, e.g., 4 Wayne R.
LaFave, Search and Seizure § 9.6(a), at 841 (5th ed. 2012) (“if an
officer, lacking the quantum of suspicion required by Terry to make
a forcible stop, instead conducts a non-seizure field interrogation, he
may not frisk the person interrogated upon suspicion he is armed”);
Adams v. Williams, 407 U.S. 143, 146 (1972) (“[s]o long as the
officer is entitled to make a forcible stop, and has reason to believe
that the suspect is armed and dangerous, he may conduct a weapons
search limited in scope to this protective purpose” (emphasis added));
Gomez v. United States, 597 A.2d 884, 891 (D.C. 1991) (“[I]f the
officer lacked articulable suspicion to seize [the defendant], the
seizure could not be justified upon the notion that it would be
dangerous to chat with [the defendant] and his companions without
restricting their liberty. No matter how appealing the cart may be, the
horse must precede it.”); United States v. Burton, 228 F.3d 524, 528
(4th Cir. 2000) (“To conduct such a protective search, an officer must
first have reasonable suspicion supported by articulable facts that
criminal activity may be afoot.”); United States v. Gray, 213 F.3d
998, 1000 (8th Cir. 2000) (“a citizen’s consent to answer questions
cannot, without more, supply the reasonable suspicion that criminal
activity is afoot needed to justify a pat-down search” (emphasis in
original)).
¶ 111 Justice Thomas contends, however, that the law in this area is not
settled. According to Justice Thomas, it is a “hotly contested issue”
in the federal circuit courts as to whether, in the absence of
reasonable suspicion of criminal activity, the police may seize a
-36-
person in order to engage in a protective weapons search. Supra ¶ 71
(Thomas, J., specially concurring). The case law does not support this
contention.
¶ 112 United States v. Romain, 393 F.3d 63 (1st Cir. 2004), relied upon
by Justice Thomas, does not eliminate the requirement of reasonable
suspicion of criminal activity. In fact, the court there held that the
suspect’s behavior “gave rise to a reasonable suspicion that he might
have been involved in criminal wrongdoing.” Id. at 72. United States
v. Bonds, 829 F.2d 1072 (11th Cir. 1987), is inapposite, as that was
a case where a person’s home was being investigated pursuant to a
search warrant and the defendant, a confederate who arrived at the
home, was frisked during that investigation. United States v. Orman,
486 F.3d 1170 (9th Cir. 2007), also cited by Justice Thomas, is no
longer followed in the Ninth Circuit. More recent decisions, such as
Liberal v. Estrada, 632 F.3d 1064, 1079 (9th Cir. 2011), have cited
to the Supreme Court’s decision in Johnson and held that both prongs
of Terry are required for a stop and frisk. Id. at 1079 (“The first Terry
condition was not met in this case; the traffic stop was unlawful
because it did not rest on a reasonable suspicion that a violation of
law had occurred. Therefore, it would not have been reasonable for
[the police officers] to stop and frisk Plaintiff ***.”).
¶ 113 As the Liberal court’s reliance on Johnson shows, the Supreme
Court has made it abundantly clear that reasonable suspicion of
criminal activity is required to justify a stop and frisk. Indeed, in
Johnson, the State of Arizona asked the Supreme Court to abandon
the first prong of Terry and hold that a police officer may stop and
frisk someone even in the absence of any suspicion of criminal
activity. See Brief of the Petitioner, Arizona v. Johnson, 2008 U.S. S.
Ct. Briefs LEXIS 748; see also Transcript of Proceedings, Arizona v.
Johnson, 2008 U.S. Trans. LEXIS 81, at *23 (Dec. 9, 2008) (Stevens,
J.) (noting at oral argument that the request to do away with the first
Terry factor was “a rather extreme position”). The Court did not do
so, and decisions issued after Johnson have uniformly held that
reasonable suspicion of criminal activity is required to justify a stop
and frisk. See, e.g., Liberal, 632 F.3d at 1079; Commonwealth v.
Narcisse, 927 N.E.2d 439, 445-46 (Mass. 2010) (“we state expressly
that police officers may not escalate a consensual encounter into a
protective frisk absent a reasonable suspicion that an individual has
committed, is committing, or is about to commit a criminal offense
and is armed and dangerous” (emphasis omitted)); State v. Dean, 214
-37-
P.3d 1190, 1194 (Kan. App. 2009) (“[A]n officer must be able to
point to specific, articulable facts to support reasonable suspicion for
both the stop and the frisk. Johnson, 555 U.S. at ___, 129 S. Ct. at
787. Here, the district court failed to apply this dual requirement
when it found [defendant’s] pat-down was justified by officer safety
concerns but did not determine whether [defendant’s] initial detention
was justified by reasonable suspicion that [defendant] was engaged
in criminal activity.” (emphasis in original)); United States v.
Dorlette, 706 F. Supp. 2d 290, 298 (D. Conn. 2010) (“[A]n officer
may ‘act instantly on reasonable suspicion that the persons
temporarily detained are armed and dangerous’ by conducting ‘a
limited search of outer clothing for weapons,’ but only if the officer
has ‘already lawfully stopped’ the person pursuant to ‘suspicion
(reasonably grounded, but short of probable cause) that criminal
activity is afoot.’ Johnson, 129 S. Ct. at 786.” (emphasis in original));
see also United States v. Jones, 606 F.3d 964, 966 (8th Cir. 2010)
(“the government leaped to the officer safety rationale for a protective
frisk for weapons, ignoring the mandate in Terry that there must be
reasonable suspicion of on-going criminal activity justifying a stop
before a coercive frisk may be constitutionally employed” (emphasis
omitted)).
¶ 114 Notably, the only authority Justice Thomas cites that postdates
Johnson is a dissent which does not mention that case. Supra ¶ 75
(Thomas, J., specially concurring) (citing United States v. House, 463
F. App’x 783, 793 (10th Cir. 2012) (Baldock, J., dissenting)). A
single dissent’s position on an issue does not make that issue “hotly
contested.”
¶ 115 The Supreme Court has made clear that two conditions must be
met for a stop and frisk to comport with the fourth amendment, not
one. Johnson, 555 U.S. at 326. This two-part rule is the rule we must
apply here.
¶ 116 Lastly, advancing an additional argument not raised by the State,
Justice Thomas contends “that this encounter began as a perfectly
proper exercise of the police’s community caretaking function.”
Supra ¶ 76 (Thomas, J., specially concurring). This contention is
incorrect. As this court has explained, the community caretaking
doctrine “ ‘is invoked to validate a search or seizure as reasonable
under the fourth amendment’ ” where law enforcement officers are
performing some function other than the investigation of criminal
activity. People v. McDonough, 239 Ill. 2d 260, 270 (2010) (quoting
-38-
People v. Luedemann, 222 Ill. 2d 530, 548 (2006)); see generally 4
Wayne R. LaFave, Search and Seizure 9.2(b), at 382-88 (5th ed.
2012). Thus, when one states that a police officer is engaged in
community caretaking, that statement means that the officer has, in
fact, seized someone. The seizure must then be justified for reasons
that have nothing to do with the investigation of criminal activity,
such as, for example, when a police officer sees a person slumped
over unconscious on a park bench and has to seize that person in
order to provide assistance.
¶ 117 Here, the circuit court expressly held that the police officers’
initial approach to defendant’s car was a consensual encounter, not a
seizure. Neither party challenges this holding and Justice Thomas
does not contend that it is incorrect. Accordingly, because there was
no seizure, the community caretaking doctrine “is not relevant” to
analyzing the propriety of the initial approach by the officers to the
car. McDonough, 239 Ill. 2d at 271. Moreover, the State has
acknowledged that when defendant was, in fact, seized, i.e., when he
was ordered out of the car, the officers were engaged in the
investigation of criminal activity. Thus, the community caretaking
doctrine plays no role in this case.
¶ 118 V
¶ 119 The majority cites a number of cases which discuss the second
prong of Terry and the propriety of conducting protective frisks when
a defendant has been lawfully seized and the first prong of Terry has
been satisfied. Supra ¶ 60. I express no opinion on the correctness of
those decisions. My opinion in this case is limited solely to the
conclusion that the police officers lacked reasonable suspicion of
criminal activity at the time they seized defendant and, thus, the first
condition for establishing the constitutionality of a stop and frisk
under Terry was not met. See Johnson, 555 U.S. at 326.
¶ 120 VI
¶ 121 The majority is critical of me for examining the legality of
defendant’s seizure, pointing out that “neither lower court based its
judgments” on the lack of reasonable suspicion of criminal activity in
this case. (Emphasis omitted.) Supra ¶ 54. But that is exactly my
point. Neither the circuit court nor the appellate court made any
determination as to whether the police officers had reasonable,
-39-
articulable suspicion of criminal activity at the time defendant was
ordered out of his car. This court, too, has made no determination on
this issue, having found that defendant conceded the existence of
reasonable suspicion of criminal activity. Thus, the majority upholds
the legality of the search of defendant’s person and his car despite the
fact that the fourth amendment requires reasonable suspicion of
criminal activity to justify a stop and frisk (see Johnson, 555 U.S. at
326); despite the fact that defendant has argued there was nothing that
“would give rise to suspicion of criminal activity” in this case; and
despite the fact that no court has held that such suspicion existed.
This is wrong.
¶ 122 Because the police officers in this case lacked any reasonable
suspicion of criminal activity on the part of defendant, the stop and
frisk of defendant was constitutionally impermissible. Accordingly,
I would affirm the judgment of the appellate court that all of the
evidence obtained through the searches in this case should have been
suppressed. I therefore respectfully dissent.
¶ 123 JUSTICE FREEMAN joins in this dissent.
Dissenting Opinion Upon Denial of Rehearing
¶ 124 JUSTICE BURKE, dissenting:
¶ 125 As I noted in my previous dissent, the validity of a stop and frisk
is “constitutionally permissible if two conditions are met. First, the
investigatory stop must be lawful. That requirement is met in an on-
the-street encounter, Terry determined, when the police officer
reasonably suspects that the person apprehended is committing or has
committed a criminal offense. Second, to proceed from a stop to a
frisk, the police officer must reasonably suspect that the person
stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323,
326-27 (2009). In this case, defendant argued in his brief that the
officers’ actions amounted to an “unlawful seizure,” that the officers
“could not reasonably believe a crime was being committed,” and that
“Terry does not support the officers’ conduct because the surrounding
circumstances in this case were ‘absolutely benign.’ ” Supra ¶¶ 29,
30, 56. Thus, defendant clearly maintained that the factual
circumstances did not amount to reasonable suspicion of criminal
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activity pursuant to Terry and, thus, did not justify his initial stop or
seizure.
¶ 126 The majority, however, ignored defendant’s argument regarding
the illegality of his seizure. Instead, they accepted a “concession”
made by defense counsel during oral arguments when he offered
contradictory answers in response to a question from the bench.
Counsel first stated that the officers could, under Terry, order
defendant from his car. Immediately afterward, counsel argued that
the police could only “ask” defendant out of the car and perform a
“Terry-like inquiry.” Counsel later responded “yes” when a justice
asked whether officers had a right to a pat-down search under Terry.
This court did not ask defense counsel to clarify his position or to
address whether defendant intended to abandon the position argued
in his brief.
¶ 127 As my dissent stated, my view is that it was inappropriate for this
court to take counsel’s conflicting statements made to the bench as a
binding concession on an issue of law. Moreover, the majority’s
decision failed to recognize defense counsel’s many statements
during oral arguments that there was “no criminal activity” in this
case and “nothing that would give rise to suspicion of any criminal
activity.” The majority erroneously accepted as valid only those
statements which appeared to concede the legality of the seizure,
while ignoring the many statements establishing that the officers
lacked a reasonable suspicion of criminal activity which would
warrant the seizure.
¶ 128 Defendant now clarifies in his petition for rehearing that he had
no intention of conceding the legality of his seizure. Rather, he asserts
that he has “consistently maintained that the factual situation did not
give rise to being characterized as a Terry stop.” (Emphasis added.)
Defendant states that, during oral arguments, his counsel’s intent was
to present an alternative argument in the event that the court upheld
the application of Terry to this case. The alternative argument counsel
meant to pose to the court was that, even if Terry applied, the
“conduct of the officers far exceeded what was reasonable under the
circumstances.” Defendant further reiterates in his petition the
argument presented in his brief that the surrounding circumstances
did not justify the officers’ seizure under Terry.
¶ 129 I believe that it is improper for this court to avoid reaching an
issue of law based on a concession that defendant clearly never
intended to make. Because the rehearing stage is defendant’s first
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opportunity to address the court’s finding that he conceded a crucial
point of law, I would allow rehearing to address defendant’s argument
that the initial seizure of his person was illegal under Terry.
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