People v. Qurash , 2017 IL App (1st) 143412 ( 2017 )

Digitally signed by
Reporter of Decisions
Illinois Official Reports Reason: I attest to the
accuracy and
integrity of this
document
Appellate Court Date: 2017.04.24
15:34:51 -05'00'
People v. Qurash, 2017 IL App (1st) 143412Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RAMSEY QURASH, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-14-3412
Filed March 16, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-2533; the
Review Hon. Catherine M. Haberkorn, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Bradley D. Jarka, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Jon
Walters, and Michael Vojta, Assistant State’s Attorneys, of counsel),
for the People.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justice McBride concurred in the judgment and opinion.
Presiding Justice Ellis dissented, with opinion.
OPINION
¶1 A two-count criminal information charged defendant, Ramsey Qurash, with (1) possession
of a controlled substance (diazepam) and (2) possession of cannabis after having previously
been convicted of possession of a controlled substance. The Cook County trial judge found
defendant guilty of possession of a controlled substance (less than 200 grams of diazepam) and
possession of cannabis (10 to 30 grams) and sentenced him to concurrent prison terms of three
years. On appeal, defendant contends that (1) the trial court erred in denying his motion to
suppress because the officer’s statement of “come here” to defendant was a seizure and (2) the
court erred in failing to hold a fitness hearing. For the reasons stated below, we affirm.
¶2 I. BACKGROUND
¶3 In March 2014, prior to trial and at defense counsel’s behest, the trial court ordered a
behavioral clinical examination (BCX) of defendant’s fitness to stand trial, with and without
medication. The court agreed with counsel that a BCX was “a good idea” in light of
“defendant’s behavior in the courtroom.” Defendant balked at counsel’s request, reiterating his
objection during an April proceeding. In April 2014, psychologist Dr. Erick Neu of the court’s
forensic clinical services (FCS) reported that he examined defendant that month and opined
that he was fit to stand trial. Dr. Neu found that defendant was “not suffering from a mental
condition that would compromise his ability to understand the nature of the proceedings
against him or to assist in his defense.”
¶4 In May 2014, psychiatrist Dr. Aarti Mehta of FCS reported that she examined defendant
that month and found him fit to stand trial with medications. According to Mehta, defendant
expressed understanding of the charges and the nature of the proceedings against him and was
capable of assisting in his defense “if he chooses.” However, she reported, he “would need to
continue his present medications in order to maintain his fitness.”1
¶5 After the trial court had received both BCX reports, defendant complained that the BCXs
had delayed his case and he wanted to represent himself. The court told defendant that it had
ordered the BCXs to determine his fitness to stand trial, noting his “outbursts” of speaking
out-of-turn. The court ascertained from defendant that he took his medication that day. The
court ordered FCS to provide copies of Dr. Mehta’s psychiatric summary and Dr. Neu’s
psychological summary to the State and defense. In June 2014, the court and parties
acknowledged receiving the summaries. Defense counsel filed his answer and requested a July
2014 trial date, which the court set.
¶6 At trial, Chicago police officers Stephen Gregory and Kimberly Oppedisano testified that
they were on patrol in an unmarked police car at about 7:30 p.m. on January 9, 2014. As
Officer Gregory drove slowly northbound on the 1600 block of North Tripp Avenue, both
officers saw defendant walking toward them southbound on a sidewalk along the west side of
the street. Officer Gregory recognized defendant from the neighborhood. When the officers
1
At that time, defendant was taking 150 milligrams of Sertraline daily for depression, 10 milligrams
of buspirone three times a day for anxiety, and 50 milligrams of the anticholinergic medication
diphenhydramine daily. There was no indication that defendant was suffering adverse side effects from
his medications that would impair his fitness.
-2-
were about 15 feet away from defendant, Officer Gregory stopped the police car, lowered his
window, and said to defendant, “come here.”
¶7 As Officer Gregory called him, defendant dropped a large white bottle into the snow on the
parkway. He did not make any other furtive movements, nor did he try to flee. When he saw
defendant drop the object, Officer Gregory stopped the car, got out, and walked over to where
defendant dropped the bottle. Officer Gregory picked up the bottle, noting there was nothing
on the ground nearby nor was there another person nearby. The white bottle had no label and
contained 26 bags of a green leafy material Officer Gregory suspected to be cannabis. At this
point, Officer Gregory told Officer Oppedisano to arrest defendant. While searching
defendant, Officer Oppedisano found in his pants pocket two more bottles, one with no label
and the other with a torn-off label. Officer Oppedisano found no prescription for the
substances. One bottle contained 10 yellow pills and yellow pill fragments, and the other had 9
white pills and white pill fragments.2
¶8 Defendant testified that he was walking to the store when a police car passed by slowly.
Defendant recognized the officers from the neighborhood. The male officer lowered the car
window and said “come here” to defendant. The assistant State’s Attorney asked defendant,
“[t]he male officer asked you to come over to their car, right?”, to which defendant replied,
“[y]ep.” The State again asked defendant, “when they asked you to come over to their car, you
said, ‘all right, sure’, and walked right up?” Defendant replied, “I did. I walked right up. But I
didn’t have nothing in my hand when I walked up.” According to defendant, as he walked to
the car, Officer Gregory walked past him toward the sidewalk. Officer Gregory did not stop to
talk to defendant as he walked past.
¶9 Following defendant’s testimony, defense counsel made an oral motion to quash arrest and
suppress evidence, to be taken with the case.3 The trial court allowed counsel to make the oral
motion but ultimately denied it.
¶ 10 Following arguments on the trial evidence, the trial court found defendant guilty of both
possession of cannabis and possession of a controlled substance (diazepam). The court stated
that the testimony of Officers Gregory and Oppedisano was clear and partially corroborated by
defendant. The court found the fact that Officer Gregory saw defendant drop the bottle and
then saw no other person in the area or objects on the ground nearby before recovering the
bottle proved that defendant possessed the bottle and its contents. Moreover, the court noted,
defendant admitted he possessed the bottles found in his pants pocket.
¶ 11 Defendant filed a motion for a new trial, challenging the sufficiency of the trial evidence
but not the absence of a fitness motion, and a motion to reconsider the denial of his motion to
quash arrest. He argued that the officers searched him without consent or probable cause. The
trial court denied the motions, reiterating its finding that the officers’ testimony was credible.
The court then sentenced defendant to concurrent three-year prison terms.
¶ 12 This appeal followed.
2
The parties stipulated to forensic testing showing that the 26 bags of plant material contained 11.2
grams of cannabis and the 10 yellow pills and fragments contained 1.9 grams of diazepam.
3
Defendant surprised his counsel by testifying, and as a result, counsel had not filed a motion to
quash arrest and suppress evidence.
-3-
¶ 13 II. ANALYSIS
¶ 14 On appeal, defendant argues (1) the trial court erred in denying his motion to suppress
because the officer’s statement of “come here” to defendant was a seizure and (2) the court
erred in failing to hold a fitness hearing. We address defendant’s arguments in turn.
¶ 15 A. Does the Statement “Come Here,” Uttered by a Police Officer
to a Citizen, Result in a Seizure?
¶ 16 Defendant first challenges the trial court’s denial of his motion to quash arrest and suppress
statements. Defendant contends that the court erred in denying his motion to quash because he
was seized at the moment Officer Gregory said, “come here.” According to defendant, the
officers lacked a reasonable suspicion or probable cause for this seizure. Therefore, defendant
claims, the drugs that he dropped to the ground as well as those recovered from his person
should have been suppressed.
¶ 17 The question presented is deceptively simple: as a matter of law, do the words “come
here,” uttered by a police officer to a citizen, result in a seizure? The trial court, after listening
to both the officers and defendant testify, found that defendant’s encounter with the officers
was consensual and did not implicate defendant’s constitutional rights. Because we conclude
that the determination of whether the statement “come here” is a request or command is a
question of fact and because we conclude the trial court’s finding in this regard was not against
the manifest weight of the evidence, we find no reason to disturb the trial court’s denial of
defendant’s motion to quash arrest and suppress evidence.
¶ 18 Police-citizen encounters are divided into three tiers: arrests, which must be supported by
probable cause; brief investigatory detentions or Terry stops, which must be supported by
reasonable and articulable suspicion of criminal activity; and consensual encounters that
involve no coercion or detention and thus do not implicate constitutional rights. People v.
Almond, 2015 IL 113817, ¶¶ 52, 56; People v. Williams, 2016 IL App (1st) 132615, ¶ 34.
¶ 19 A person is seized when his freedom of movement is restrained by physical force or a show
of authority. Almond, 2015 IL 113817, ¶ 57. The test is whether a reasonable person would
conclude, in light of the totality of the circumstances, that he was not free to leave. Id.Following the United States Supreme Court’s decision in United States v. Mendenhall, 446
U.S. 544, 553 (1980) (opinion of Stewart, J., joined by Rehnquist, J.), the Illinois Supreme
Court adopted the Mendenhall plurality factors indicating a seizure when the person does not
attempt to leave: (1) the threatening presence of several officers, (2) the display of a weapon by
an officer, (3) the physical touching of the person, and (4) the use of language or tone of voice
compelling the person to comply with the officer’s requests. Almond, 2015 IL 113817, ¶ 57.
The absence of any of these factors is not dispositive but highly instructive on the issue of
whether a seizure occurred. Id.¶ 20 When reviewing the trial court’s ruling on a motion to quash arrest and suppress evidence,
reviewing courts apply a two-part standard of review. Id. ¶ 55. Findings of fact are given “great
deference” and can be reversed only if they are against the manifest weight of the evidence. Id.
A trial court’s finding is against the manifest weight of the evidence only if it is unreasonable,
arbitrary, and not based on the evidence presented, or if the opposite conclusion is clearly
evident. People v. Deleon, 227 Ill. 2d 322, 332 (2008).
-4-
¶ 21 The trial court’s ultimate legal ruling on whether the evidence should be suppressed is
reviewed de novo. Almond, 2015 IL 113817, ¶ 55. At a hearing on a motion to quash, the trial
court is responsible for determining witness credibility, weighing the evidence, and drawing
reasonable inferences therefrom. Williams, 2016 IL App (1st) 132615, ¶ 32.
¶ 22 Here, it is undisputed that Officers Gregory and Oppedisano did not exit their car, display
any weapons, or physically touch defendant prior to stating, “come here.” Thus, the only
Mendenhall factor that is in play is the use of language or tone of voice compelling the person
to comply. See Almond, 2015 IL 113817, ¶ 57 (setting forth the Mendenhall factors). Defense
counsel conceded in oral argument before this court that the determination of whether the
statement “come here” is a request or a command is a question of fact. Accordingly, the
question before us is whether the trial court was manifestly erroneous in determining that the
words “come here” were issued as a request. See id. ¶ 55 (“[w]e afford great deference to the
trial court’s findings of fact and will reverse those factual findings only if they are against the
manifest weight of the evidence”). In other words, to reverse a trial court’s finding as against
the manifest weight of the evidence, this court must find that the trial court’s finding was
unreasonable, arbitrary, and not based on the evidence presented, or the opposite conclusion
was clearly evident. See Deleon, 227 Ill. 2d at 332.
¶ 23 The trial court, after listening to both the officers and defendant testify, made a finding of
fact that Officer Gregory’s statement, “come here,” was a request. Specifically, in ruling on the
motion to quash, the court found Officer Gregory testified “clearly and credibly and
convincingly.” The court found that Officer Gregory rolled down his window and “asked the
defendant to come over.” The court stated, “[t]he defendant corroborates that in his own
testimony by saying he did see the officers, they asked him to come over to the car. So the
defendant doesn’t deny. In fact, they did just ask him. They didn’t—they didn’t demand that he
come here. They didn’t pull out any weapons. They were in the car, asked him to come over to
the car.” (Emphases added.) The court further stated, “in fact police officers do have the right
to ask any citizen to come over and talk to them about anything they wish. Citizen[s] can refuse
if they want. They don’t have to cooperate. They do have the right to ask him. In this case Mr.
Qurash did in fact go over by the officers.” (Emphases added.) The court also stated as follows:
“I do believe based on both the officers’ testimony and corroborated in part by the defendant’s
testimony, that there were grounds to—[it] was legal for them to ask the defendant to come
over and talk to them.” (Emphasis added.) The trial court then denied the motion to quash.
¶ 24 In Almond, the defendant challenged the credibility of the officer’s account of his
encounter with the defendant. Almond, 2015 IL 113817, ¶ 63. The defendant and the officer
presented completely different versions of their interaction. Id. The trial court resolved the
credibility issue in favor of the officer’s account, finding that his testimony was clear and
credible. Id. The supreme court recognized the discrepancy in the defendant’s and officer’s
testimonies but stated that nothing in the record suggested that the “trial court’s assessment
was against the manifest weight of the evidence or should” be disturbed on review. Id.¶ 25 Similarly, here, nothing in the record suggests the trial court’s finding that the words
“come here” were issued as a request was against the manifest weight of the evidence. Officer
Gregory’s tone of voice when he told defendant to “come here” is not possible to discern from
this record. No one testified to Officer Gregory’s tone when he said, “come here”; accordingly,
this court, or for that matter any reviewing court, cannot determine his tone when he spoke to
defendant. That determination is solely within the province of the trier of fact, who heard the
-5-
witnesses testify. It is not the function of the appellate court to reevaluate the evidence that was
presented to the trial court and substitute our judgment for that of the trial court because we
think a different tone may have been used. The exact same words can convey a myriad of
different meanings based upon the tone used.
¶ 26 Likewise, we do not consider the phrase “come here” to be unambiguously or per se
compulsory in nature. An officer calling a person over to the officer does not by itself
necessarily constitute a seizure. See People v. Tilden, 70 Ill. App. 3d 859, 863 (1979) (a
uniformed officer’s request to the defendant to approach and produce identification did not
constitute a Terry stop where the officer did not draw a weapon and the record revealed no
further evidence that the “defendant’s freedom to walk away was in any fashion overcome by
force or threat of force”). Language can have completely different meanings depending on
how it is expressed. It is for this reason that the Illinois Supreme Court combined language and
tone together in analyzing whether a seizure occurred in Almond. See Almond, 2015 IL
113817, ¶ 58.
¶ 27 Listening to the language and tone used by all participants to the interaction and then
deciding what was meant by the statement, what the speaker intended, and what the listener
gleaned from the statement are functions of the trial court. We cannot take two words in
isolation and make our own conclusions about what meaning was imparted. By doing so,
without the benefit of hearing the witnesses testify to how Officer Gregory said “come here”
and without the benefit of seeing how the witnesses testified to the effect Officer Gregory’s
statement had, we would be completely disregarding the function and role of the trial court.
See People v. Richardson, 234 Ill. 2d 233, 251 (2009) (recognizing the deferential standard of
review for findings of fact and credibility determinations is “grounded in the reality that the
circuit court is in a superior position to determine and weigh the credibility of the witnesses,
observe the witnesses’ demeanor, and resolve conflicts in their testimony”). Trial courts are
required to listen to all of the evidence and make findings of fact based on what they have
heard, including whether “come here” was meant and received as a request. Here, the court
determined the words “come here” were a request, and there is nothing in the record suggesting
that determination was against the manifest weight of the evidence. See Almond, 2015 IL
113817, ¶ 55 (“[w]e afford great deference to the trial court’s findings of fact and will reverse
those factual findings only if they are against the manifest weight of the evidence”).
¶ 28 In support of his claim that the trial court erred, defendant points to the First District
decision in Williams, where we found that “the officers restrained defendant’s liberty by a
show of authority as soon as they arrived on the scene, and thus, defendant was immediately
seized.” Williams, 2016 IL App (1st) 132615, ¶ 41. In Williams, the officer testified that the
defendant was not free to leave, and the defendant testified that he did not feel free to leave. Id.
¶ 40. Also, while the Williams defendant testified that the officers were in a police car when
they said “come here,” one of the officers testified that he had exited his vehicle before
addressing the defendant, and the Williams court expressly considered that exit as evidence of
a seizure. Id. ¶¶ 6, 11, 39. Both the officer and the defendant agreed in Williams that the
defendant was not free to leave. Id. ¶ 40; see also People v. Billingslea, 292 Ill. App. 3d 1026,
1030 (1997) (“We believe [the officer’s] action in stepping to block defendant while telling
him to ‘come here’ was a show of force indicating [the officer’s] intent to restrain defendant.”
(Emphasis added.)). Accordingly, Williams is distinguishable. There was no conflict in
-6-
Williams for the trial court to resolve, as the issue of whether defendant was seized was not up
for determination. Both sides agreed and testified that he was seized.
¶ 29 The dissent concludes, without ever discussing the testimony at the hearing or the trial
judge’s findings, that defendant was seized immediately when the officer uttered the words
“come here.” The dissent is not “prepared to hold that a seizure occurs every single time the
words ‘come here’ are a part of a conversation between a citizen and a police officer.” The
dissent says it does not need to do so to decide this case, but that is essentially what it has done.
It has declared that “come here” is an order; it is not question, it is not a request. Not only is
such a conclusion contrary to the trial judge’s findings, but it makes no sense since the dissent
has not explained what else made this a seizure other than to say a reasonable person walking
alone on the streets in a high-crime area would not feel free to leave.
¶ 30 Even though the dissent disclaims that it is not concluding the words “come here” will
always amount to a command or order and thus a seizure, the dissent has nonetheless
effectively concluded the words “come here” are, in fact, always an order. Even the dissent
does not suggest the officer’s tone of voice was compelling, just that the words were
compelling. Here, the officers did not approach defendant; instead Officer Gregory asked
defendant to “come here,” meaning near the car in which the officer was seated. The fact that a
person knows that a police officer is a police officer when conversing has never been suggested
as a factor that courts consider as particularly significant at all. People v. Ocampo, 377 Ill.
App. 3d 150, 159 (2007). If it were, most conversations between a citizen walking alone and an
officer would become seizures.
¶ 31 The dissent misunderstands the reasonable person standard. Our supreme court has
explained the reasonable person standard is when, taking into account all the circumstances
surrounding the incident, “the conduct of the police would lead a reasonable innocent person
under identical circumstances to believe that he or she was not free to decline the officers’
requests or otherwise terminate the encounter [citation], that person is seized.” (Internal
quotation marks omitted.) People v. Gherna, 203 Ill. 2d 165, 178 (2003).
¶ 32 The dissent cites a series of cases for the proposition that a police officer’s words,
including the words “stop” or “come here,” may be sufficient to effectuate a seizure. However,
there is not a single case cited by the dissent in which a court concluded that an encounter in
which a police officer, while seated in a car, rolled down a car window to speak to a citizen and
stated “come here,” without anything more, amounted to a seizure in violation of that citizen’s
fourth amendment rights. Our research has not disclosed such a case. Further, in each case
relied upon by the dissent, the trial court, upon reviewing a motion to suppress, considered all
of the circumstances surrounding the encounter, all of the testimony presented at the hearing,
the appropriate standard of review, and case precedent to decide whether a seizure occurred.
¶ 33 Among the many cases cited by the dissent is the case of In re Rafeal E., 2014 IL App (1st)
133027, ¶ 20, wherein this court found that there was a seizure based upon the officers pulling
alongside the defendant and ordering him to stop walking and additionally telling him to take
his hands out of his pockets. The direction to the defendant to stop, coupled with the additional
command directing him to remove his hands from his pockets, was clearly a seizure. In People
v. Dall, 207 Ill. App. 3d 508, 521-22 (1991), the reviewing court found that a seizure occurred
when the defendant was running and an officer yelled at him and ordered him to stop. The
word “stop” is clearly a command when uttered by a police officer to a fleeing suspect because
it is unambiguously compulsory. If the trial court had found that the word “stop” was not an
-7-
order, clearly that finding would be manifestly erroneous, as the opposite conclusion is clearly
evident. However, the opposite conclusion is not clearly evident in the case at bar.
¶ 34 The dissent looks to other jurisdictions in order to find support for the position that
defendant was seized. The dissent cites cases from the United States Court of Appeals for the
Second Circuit as well as Kentucky, Arkansas, Massachusetts, Texas, and the District of
Columbia. The dissent also cites an unpublished decision from California. However, we need
not, nor should we, consider foreign courts’ determinations when there is substantial case law
in our own state to answer the question presented, including Almond, a binding Illinois
Supreme Court decision. See People v. Applewhite, 2016 IL App (1st) 142330, ¶ 23 (decisions
of foreign courts are not binding on Illinois courts, and we are required to follow our own
supreme court precedent). Further, the cases cited by the dissent are all distinguishable. In
United States v. Simmons, 560 F.3d 98, 105-06 (2d Cir. 2009), the appellate court agreed with
the lower court’s finding as to when the defendant was seized. Moreover, in Simmons and
several of the other cases cited by the dissent, additional facts were present that warranted a
finding that the defendant was “seized.” See id. (officers entered a building and twice ordered
the defendant to stop while standing between the defendant and the doorway); Jefferson v.
State, 76 S.W.3d 850, 853 (Ark. 2002) (officers turned on their headlights as the defendant
passed in front of their car, and one officer stepped out of the patrol car and called to the
defendant to come to the car twice); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010)
(officer shone his car’s overhead lights in the defendant’s direction and issued a
“request-that-sounded-like-an-order, to ‘come over here and talk to me’ ”).
¶ 35 Two of the cases cited by the dissent actually support, rather than refute, our decision. In
Commonwealth v. Barros, 755 N.E.2d 740, 742-43 (Mass. 2001), the appellate court found an
officer’s initial statement to the defendant, in which he stated “Hey you … I want to speak with
you,” was not a seizure where the officer remained in his car and did not impede or restrict the
defendant’s freedom of movement. Id. It was only the second request, wherein the officer
exited his police cruiser, walked up to the defendant after the defendant had “rebuffed” him,
pointed at the defendant in the presence of two other officers, and said, “Hey you. I wanna talk
to you. Come here,” that constituted a seizure. (Emphasis omitted.) Id. at 745. In In re D.T.B.,
726 A.2d 1233, 1234-36 (D.C. 1999), the appellate court concluded a seizure occurred where
an officer, while standing near a building’s only exit, twice ordered the defendant to “come
here.” In reaching its conclusion, the appellate court found “of particular relevance” the trial
court’s finding that the officer’s “statement was ‘undoubtably [sic] stern’ and probably
amounted to a command.” Id. at 1236. Thus, the court in In re D.T.B. gave weight to the trial
court’s finding as to the tone of voice that was used by the officer when ordering the defendant
to “come here.”
¶ 36 Finally, the dissent adopts the reasoning set forth in the Kentucky Supreme Court case of
Strange v. Commonwealth, 269 S.W.3d 847 (Ky. 2008), a case the dissent characterizes as
having a “similar fact pattern.” The facts are readily distinguishable. There was no issue in that
case as to whether the words spoken by a police officer to a citizen were the equivalent of a
command or order. In Strange, the officer testified that he and another officer separated the
defendant from another individual and “moved” the defendant from a van to the officer’s
nearby police cruiser. Id. at 849. The Strange court rejected the argument that the officers
“merely asked” defendant to walk away from the van, stating the testimony revealed otherwise
and it was “clear that the trial court recognized” a seizure occurred when the officer directed
-8-
the defendant to move over to the police cruiser. Id. at 850. The Strange court explained that
the officer’s assertion that “ ‘we separated them’ ” and that he “ ‘moved [the defendant]’ away
from the van established beyond dispute that he took control of [the defendant] and expected
compliance.” Id. at 850-51.
¶ 37 The dissent asserts that the application of the facts to the law in this case will somehow
result in people ignoring officers’ commands and being criminally prosecuted for doing so.
What the majority has found in this case is that the trial court, rather than the appellate court, is
charged with making a finding of fact on the language and tone an officer used in making a
determination of whether a seizure has occurred. The suggestion that now people are going to
be prosecuted for ignoring commands is simply a red herring.
¶ 38 The dissent believes that the appellate court’s role is to somehow, “send a message.” It is
not. The appellate court’s role is to apply the facts to the law and make a determination on
whether the trial court’s decision complied with the law. A court is not free “to ignore an entire
body of relevant case law and the principles and guidelines articulated therein.” People v.
Luedemann, 222 Ill. 2d 530, 552 (2006). The only “message” that is appropriate for the
appellate court to send is that we will apply the law to the facts and not diminish the necessity
for trials or even a trial court. To suggest that we need to “guide” people on how to comport
themselves seems to suggest a fundamental misunderstanding of what the role of the appellate
court is.
¶ 39 The trial court has made, and by definition of its role was required to make, the finding
regarding what the intention, tone, and impact of the words “come here” had. The trial court
did this by listening to the witnesses, watching how they testified, and based upon that, judging
their demeanor and credibility. To suggest that the court’s finding was manifestly erroneous
without any contrary information oversteps the boundaries of appellate review. Based on the
foregoing, the trial court did not err by denying defendant’s motion to quash arrest and
suppress evidence.
¶ 40 B. Did the Trial Court Err by Failing to Conduct a Fitness Hearing?
¶ 41 Defendant also contends that the court erred in failing to hold a fitness hearing when it
expressed bona fide doubt as to defendant’s fitness. He acknowledges that he did not preserve
the issue of his fitness but correctly notes that under the plain error doctrine, we may review
unpreserved error where a clear or obvious error occurred and (1) the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) the error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence. People v. Hood, 2016 IL 118581, ¶ 18. Our first step is to
determine whether error occurred. People v. Jones, 2016 IL 119391, ¶ 10.
¶ 42 A defendant is presumed to be fit to stand trial and is unfit to stand trial “if, because of his
mental or physical condition, he is unable to understand the nature and purpose of the
proceedings against him or to assist in his defense.” 725 ILCS 5/104-10 (West 2014). Because
fitness concerns only the ability to function in the context of a trial, a person may be fit for trial
though his mind may be otherwise unsound. People v. Garcia, 2015 IL App (1st) 131180, ¶ 52.
For example, a defendant receiving psychotropic medication will not be presumed unfit solely
on that basis. 725 ILCS 5/104-21(a) (West 2014). The issue of a defendant’s fitness to stand
trial may be raised by the court, defense, or State at any time before, during, or after trial, and
-9-
“[w]hen a bona fide doubt of the defendant’s fitness is raised, the court shall order a
determination of the issue before proceeding further,” including ordering a BCX by a
psychologist or psychiatrist. 725 ILCS 5/104-11(a), (b), 104-13(a) (West 2014). There are no
fixed or immutable signs that invariably indicate the need for further inquiry into a defendant’s
fitness. People v. Hanson, 212 Ill. 2d 212, 222 (2004). The factors that may create a bona fide
doubt of a defendant’s fitness include any irrational behavior, his demeanor at trial, any prior
medical opinion on the defendant’s competence, and any representations by defense counsel
on the defendant’s competence. People v. Bryant, 2016 IL App (5th) 140334, ¶ 32; Garcia,
2015 IL App (1st) 131180, ¶ 52.
¶ 43 When a bona fide doubt concerning a defendant’s fitness to stand trial exists, the trial court
shall order a fitness hearing to determine the defendant’s fitness. 725 ILCS 5/104-16(a) (West
2014); Garcia, 2015 IL App (1st) 131180, ¶ 51. However, ordering a BCX does not constitute
the trial court’s finding of bona fide doubt. Hanson, 212 Ill. 2d at 222; Garcia, 2015 IL App
(1st) 131180, ¶ 51. The trial court’s determination on fitness will not be reversed unless it was
against the manifest weight of the evidence. Bryant, 2016 IL App (5th) 140334, ¶ 32.
¶ 44 Two separate doctors performed BCXs in this case. In his psychological summary, Dr. Neu
found defendant to be “alert and fully oriented” and to be speaking in a manner “organized,
coherent, and to task with no indication of a thought disorder, delusions, *** paranoia, or
prominent cognitive dysfunction.” Dr. Neu found defendant had a full range of affect and
showed no signs of clinical depression, nor did he display “any hostile or aggressive behavior.”
When asked about various aspects of courtroom procedure and personnel, defendant answered
accurately but cynically. Dr. Neu observed that defendant showed awareness of the charges
against him and the sentencing he faced, he was able to coherently give his account of the
alleged offenses, and he stated a willingness to cooperate with counsel.
¶ 45 In her psychiatric summary, Dr. Mehta reported that defendant cooperated with her
evaluation, giving logical and coherent answers to her questions. Defendant admitted to
psychiatric treatment including prescriptions for sertraline, Xanax, and clonazepam.4 Turning
to his fitness, Dr. Mehta ascertained from defendant that he knew the charge against him and
its seriousness, knew the roles of the courtroom personnel, and stated that he had “not had any
problems working with” defense counsel. Defendant properly described trial, jury trial, plea
bargains, oaths, witnesses, and evidence. Dr. Mehta concluded that if defendant chose, he
“should be fully capable of assisting counsel in his defense.” Defendant was cooperative and
maintained eye contact throughout the evaluation; properly stated the date, time, and place;
engaged in mathematical and focus-testing exercises; and “showed an ability to think
abstractly and showed good short term memory.” His affect was “appropriately reactive,” he
had “normal speech rate, rhythm, and volume,” his “thought process was organized and goal
directed,” and he was able to pay attention and concentrate. Dr. Mehta indicated that defendant
showed no symptoms of anxiety, depression, mania, or psychosis, and he expressed no
delusions, paranoia, or perceptual abnormalities.
¶ 46 In June 2014, the trial court and parties acknowledged receiving the summaries. Defense
counsel filed his answer and requested a July 2014 trial date, and the court set a July trial date.
¶ 47 Here, as a threshold matter, we do not find that the trial court’s reference to defendant’s
courtroom behavior before ordering a BCX or its reference to his “outbursts” of speaking
4
Dr. Mehta explained that the latter two treat anxiety.
- 10 -
out-of-turn while ordering copies of the evaluation summaries constituted a finding of
bona fide doubt as defendant contends. If ordering a BCX is not a finding of bona fide doubt,
we see no reason to conclude that merely ordering copies of the summaries underlying the
BCX reports constitutes such a finding. Both ordering a BCX and ordering a copy of an
evaluation summary are the court’s efforts to gather information from which it can reach a
conclusion regarding fitness, not an expression of its conclusion.
¶ 48 We consider it decisive that the trial court acknowledged its receipt of the evaluation
summaries in the same proceeding in which it set trial for the following month. The court thus
implicitly found no bona fide doubt of defendant’s fitness for that trial. Notably, defense
counsel, following submission of the summaries, requested a relatively imminent trial rather
than requesting a fitness hearing or otherwise expressing doubt of defendant’s fitness to
understand trial or cooperate with counsel. The detailed summaries by psychiatrist Dr. Mehta
and psychologist Dr. Neu show they found no signs of unfitness, much less unfitness arising
from mental illness, when they evaluated him in April and May 2014. Defendant’s July 2014
trial testimony, where he gave coherent and responsive answers to questions from both his
counsel and the State, amply supports the conclusion that there was no bona fide doubt of his
fitness. In sum, we see no error in the absence of a fitness hearing.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm the trial court’s judgment.
¶ 51 Affirmed.
¶ 52 PRESIDING JUSTICE ELLIS, dissenting.
¶ 53 If you were walking alone down a street at night in a high-crime neighborhood and two
police officers, driving in the opposite direction, stopped their car, rolled down their window,
and said, “Come here,” would you, as a reasonable person, feel free to leave—to disregard that
request and keep walking? The majority says yes, a reasonable person in that situation would
feel free to ignore the request to “come here” and walk away from the police officers.
¶ 54 I respectfully disagree. A reasonable, innocent person, standing in defendant’s shoes here,
upon hearing a police officer say “Come here” to him, would believe that he was required to do
just that. A holding to the contrary is an unrealistic reflection of how a reasonable person
objectively views a police officer’s authority.
¶ 55 My colleagues in the majority surely can cite case law that supports their
position—probably more case law than I could cite to support mine. But neither the Illinois nor
the United States Supreme Court has decided this particular question; no decision from either
court compels a result here. And no matter how many cases lead the majority to its conclusion,
I simply cannot understand how an officer saying “Come here” to someone under these facts
could be viewed as anything other than an officer issuing a command. Nor do I understand why
fourth amendment jurisprudence would require more than those words—a physical
confrontation, a more hostile or aggressive approach toward the citizen—before finding a
seizure. I think requiring more than those words is unrealistic and promotes the wrong public
policy.
- 11 -
¶ 56 I would hold that a seizure occurred when Officer Gregory said “Come here” to defendant,
and because that seizure was unsupported by a reasonable suspicion, the seizure was
unreasonable.
¶ 57 I
¶ 58 The standard for determining when police have seized someone is well established in this
context: “[A] person is seized within the meaning of the fourth amendment ‘only when, by
means of physical force or a show of authority, his freedom of movement is restrained.’ ”
People v. Almond, 2015 IL 113817, ¶ 57 (quoting United States v. Mendenhall, 446 U.S. 544,
553 (1980) (plurality opinion)). “In other words, a person has been seized when, considering
the totality of the circumstances, a reasonable person would believe he is not free to leave.” Id.;
see also People v. Luedemann, 222 Ill. 2d 530, 550 (2006) (when individual is “walking down
a street” when confronted by officer, appropriate question is whether reasonable person would
believe he is not free to leave).
¶ 59 As the majority correctly notes, the United States Supreme Court has provided four
examples of circumstances in which a reasonable person would not feel free to leave in the face
of a police encounter: (1) the threatening presence of several officers, (2) the display of a
weapon, (3) physical touching of the person by the officers, and (4) using language or tone of
voice compelling the individual to comply with the officer’s request. Here, we have one of
those four examples—language compelling the individual to comply with the officer’s request.
The officer stopped his car and said “Come here” to the only person walking on the street at
that time, defendant. And though the officers were in plainclothes, it is undisputed that the
officers and defendant recognized each other; defendant knew they were police officers, and
the officers knew he knew.
¶ 60 I do not see how, in this context, those two words could be viewed as optional. I am not
prepared to hold that a seizure occurs every single time the words “come here” are a part of a
conversation between a citizen and a police officer. Nor is it necessary to do so to decide this
case. But under the facts of this case, when defendant was walking alone at night in a
high-crime neighborhood, when two police officers stopped their car and focused their
attention exclusively on defendant, and when the only two words used were “come here,” I do
not see how a reasonable person would view those two words as optional. “Come here” is not a
question. “Come here” is not a request. “Come here” is an order.
¶ 61 It is well settled that officers may approach an individual and put questions to that person
without necessarily “seizing” that individual in the constitutional sense; courts will not find a
seizure in that context “so long as the officers do not convey by their words or actions to the
person being questioned that compliance with their requests is required” or “convey a
message, by means of physical force or show of authority, that induces the individual to
cooperate.” People v. Gherna, 203 Ill. 2d 165, 179 (2003).
¶ 62 So if an officer approached an individual walking on the sidewalk and asked that individual
a question, typically no seizure would be found because the officer has done nothing to
specifically indicate that the individual cannot keep walking. But if the officer said, “Stop,”
“Freeze,” or “Don’t move,” a seizure likely has occurred, because the individual is being told
in no uncertain terms that he cannot continue moving forward. See, e.g., People v. Dall, 207 Ill.
App. 3d 508, 521-22 (1991) (where defendant was running down street and officer told
defendant to stop, seizure occurred at moment officer told him to stop).
- 12 -
¶ 63 Under the circumstances present here, the words “come here” are not meaningfully
different than “stop” or “freeze.” If an officer tells a man to “stop,” that officer is
communicating that the individual is not free to continue moving in the direction in which he
was headed and instead must stand still. If, as here, the officer, from a northbound car, tells a
man walking southbound on the sidewalk to “come here,” he is doing the same thing—he is
communicating that the individual is not free to continue walking southbound and instead must
change direction, cross over a snowy parkway, and walk into the street to speak with the
officer. Arguably, the order to “come here,” in this context, is a greater intrusion on liberty than
if the officers had merely told defendant to “stop,” but I do not see how it could be viewed as
less intrusive. This, presumably, is why the United States Supreme Court made note of the
difference between an officer approaching a person to ask questions as opposed to summoning
that individual to the officer’s position. See Mendenhall, 446 U.S. at 555 (opinion of Stewart,
J., joined by Rehnquist, J.) (in finding no seizure had occurred, noting that federal agents “did
not summon the respondent to their presence, but instead approached her and identified
themselves as federal agents”).
¶ 64 This court and other courts have held that a police officer’s words—including the words
“stop” or “come here”—may be sufficient to effectuate a seizure. See, e.g., People v. Williams,
2016 IL App (1st) 132615, ¶ 39 (defendant seized when officer pulled up in car behind
defendant, got out, and told defendant “ ‘to come here to where [he] was at’ ”); In re Rafeal E.,
2014 IL App (1st) 133027, ¶ 20 (where officers pulled squad car alongside defendant on foot,
officer left vehicle and directed defendant to “stop” and to put his hands in the air, defendant
was seized); Dall, 207 Ill. App. 3d at 521-22 (where defendant was running down street and
officer told defendant to stop, seizure occurred at moment officer told him to stop); Strange v.
Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008) (seizure found where defendant “was
directed to move over to the police cruiser,” and his “passive compliance *** cannot convert
that order into a request”); United States v. Simmons, 560 F.3d 98, 105-06 (2d Cir. 2009) (“A
police officer’s order to stop constitutes a seizure if a reasonable person would have believed
that he was not free to leave, [citation], and the person complies with the officer’s order to stop
***.” (Internal quotation marks omitted.)); Jefferson v. State, 76 S.W.3d 850, 855 (Ark. 2002)
(seizure found where officer “issu[ed] a command that [defendant] stop and come to them”);
Commonwealth v. Barros, 755 N.E.2d 740, 745 (Mass. 2001) (seizure where police officer
“pursued [defendant] and told him, ‘Come here’ ”); In re D.T.B., 726 A.2d 1233, 1236 (D.C.
1999) (seizure where officer, standing near Laundromat’s only exit, twice said “come here” to
defendant in “an undoubtedly stern voice”); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim.
App. 2010) (seizure where officer shined light at defendant and made
“request-that-sounded-like-an-order, to ‘come over here and talk to me’ ”); In re Martin H.,
No. B151148, 2002 WL 1732650, at *3 (Cal. App. July 25, 2002) (seizure found where officer
pulled up patrol car, shone headlights on defendant, and partner left vehicle and said “ ‘Come
here,’ or words to that effect,” to defendant).
¶ 65 The majority relies almost exclusively on the fact that the officer’s use of the phrase “come
here” was couched as a request—that the officer “ ‘asked *** defendant to come over’ ”
(emphasis in original) (supra ¶ 23)—rather than a command. I respectfully disagree.
¶ 66 It is true that Gregory said that he asked defendant to “come here” and did not testify that
he demanded that defendant approach the car. But the only time that Gregory said he “asked”
defendant was in his description of the conversation during the State’s direct examination:
- 13 -
“Q. What, if anything, did you do when you observed the defendant walking in
your direction?
A. I observed the defendant walking. I then stopped my car, asked him to come
here.”
¶ 67 Cross-examination was the one and only time that Officer Gregory more specifically
clarified the words he used, when he quoted himself:
“Q. You called out to [defendant]?
A. Called him by his name?
Q. Did you call out to him?
A. I said, ‘Yes, come here.’ If that is what you are asking. I didn’t call him by his
name.”
¶ 68 And defendant testified that the officers “looked at [him] and said, ‘Come here,’ ”
corroborating Gregory’s testimony on cross-examination.
¶ 69 Thus, while Gregory initially described the encounter by saying that that he “asked”
defendant to come here, it is notable that when he broke down the exact words he used—when
he quoted himself—those words were, “ ‘[C]ome here.’ ” Just as notably, though defendant
also described his interaction with the officers more than one time, on the one occasion he
actually quoted the officer, that quote was the same as Gregory’s—that Gregory said, “ ‘Come
here.’ ”
¶ 70 I do not see how the trial court’s characterization of Gregory’s words as a “request” should
take precedence over the actual words that Gregory used. No matter how much deference we
afford to the trial court’s finding that Gregory “asked” defendant to approach, both parties to
the communication testified that Gregory only used two words: “Come here.”
¶ 71 Those two words, alone, are not a request. Nor could they plausibly be construed as a
question (“Come here?”). To a man walking down the street, alone at night, in a high-crime
neighborhood, when two officers stopped their car in the middle of the street and one of them
said, “come here,” any reasonable person would believe that he was required to comply with
that directive—that he was not free to leave.
¶ 72 II
¶ 73 Our fourth amendment rulings have policy implications. Though the objective
free-to-leave test is “necessarily imprecise” and flexible enough to cover a wide range of
police-citizen encounters, it is designed to “allow[ ] the police to determine in advance whether
the conduct contemplated will implicate the Fourth Amendment.” Michigan v. Chesternut, 486
U.S. 567, 573-74 (1988). And the United States Supreme Court has also recognized that fourth
amendment jurisprudence should be crafted with an eye to the citizen’s behavior, encouraging
compliance with police directives to avoid an escalation of tension during police-citizen
encounters. In California v. Hodari D., 499 U.S. 621, 627 (1991), the Court declined to find
that an individual who fled in response to a police request had been seized. That holding was in
part animated by the Court’s desire to encourage individuals to submit to police orders,
reasoning that if those who fled from police retained their fourth amendment protections, they
would have no incentive not to flee:
“Street pursuits always place the public at some risk, and compliance with police
orders to stop should therefore be encouraged. Only a few of those orders, we must
- 14 -
presume, will be without adequate basis, and since the addressee has no ready means
of identifying the deficient ones it almost invariably is the responsible course to
comply.” (Emphases added.) Id.¶ 74 When we hold that the words “come here” to a citizen are not enough to induce a
reasonable citizen to comply, whether we intend it or not, we are signaling to police officers
that if they truly want compliance in that situation, they will have to do more than a polite
“come here”—whether that be something less polite or significantly more aggressive, none of
which the law should encourage.
¶ 75 As for citizens, I fear that the majority’s holding will have the unintended effect of
encouraging individuals not to comply with a police officer’s request, or order, to “come here.”
Under the majority’s reasoning, the best way for citizens to protect their fourth amendment
rights is to ignore the police in that context—because if they complied even though not
required to do so, they would be consenting to police questioning without any fourth
amendment protections at all. See People v. Thomas, 198 Ill. 2d 103, 111 (2001) (“[I]f there
was no seizure, then the fourth amendment was not implicated ***.”). If a citizen is not sure
whether a police officer’s request to “come here” is an optional request or an order, the citizen
is incentivized to presume the former and keep walking, lest that citizen waive the protection
of the fourth amendment.
¶ 76 But even that course of action puts the reasonable person in a trick box. As the Court in
Hodari D. noted, the reasonable person “has no ready means of identifying” which
communications from the police must be complied with and which are optional. Hodari D.,
499 U.S. at 627. What if the police officer repeats the request to “come here?” What if the
officer raises his voice the second time or gets out of the car or shines his flashlight? At what
point does a reasonable, innocent person recognize that he or she is no longer free to leave?
¶ 77 The reason these questions matter is the flip side of this coin—at some point refusing to
comply with a police officer’s communication can turn into a crime. See 720 ILCS 5/31-1(a)
(West 2014) (“A person who knowingly resists or obstructs the performance by one known to
the person to be a peace officer *** of any authorized act within his or her official capacity
commits a Class A misdemeanor.”); People v. Synnott, 349 Ill. App. 3d 223, 227, 229 (2004)
(defendant was guilty of obstructing police officer when he “repeatedly disobeyed the
arresting officer’s order to exit the vehicle,” as “merely refusing a police officer’s lawful order
to move can constitute interference with the officer in the discharge of his or her duty”).
¶ 78 I am not suggesting that defendant, in this case, would have been guilty of a crime had he
refused to respond to Officer’s Gregory communication to “come here.” My point is that these
lines are fuzzy. If we hold that the words “come here” did not constitute a seizure—that
defendant should have felt free to ignore them—reasonable, innocent people are left with very
little guidance as how to comport themselves. Immediately yielding to the officer’s
communication, under the majority’s holding, would be a “consensual” choice to speak with
the officer, and any fourth amendment rights are waived. Refusing to comply—that is,
continuing to walk southbound on the sidewalk—would preserve the reasonable person’s
fourth amendment rights, but at some risk, because at some point in time, if the officer persists,
the reasonable person will be guilty of a crime if he does not comply.
¶ 79 Neither police officers nor citizens should be subjected to such guesswork, nor should
there be any incentive on either side’s part to escalate the encounter. As the Kentucky Supreme
Court noted in a similar fact pattern:
- 15 -
“A reasonable person, in a high crime neighborhood late in the evening, would not and
should not reasonably feel free to resist a police officer’s order to move. Citizens are
encouraged to comply with reasonable police directives, and the police should be
permitted to expect reasonable compliance with reasonable demands. Appellant was
directed to move over to the police cruiser, and he apparently did so promptly and
peacefully. His passive compliance with the policeman’s order cannot convert that
order into a request which Appellant, or any citizen, should feel free to resist.” Strange,
269 S.W.3d at 851.
¶ 80 It would be much simpler and safer, and most importantly of all, a more realistic appraisal
of how the ordinary citizen responds to police officers, to hold that if a police officer tells you
to “come here,” you do it—you are not free to leave. That is a lesson that most of us were
taught as children and what we teach our children. It is, in my view, what the reasonable,
innocent person would believe in most contexts, if not every context—and certainly in the
context presented here. To put the same advice in more legal terminology: Do what an officer
tells you to do, and you will not waive the protection of the fourth amendment in doing so.
¶ 81 III
¶ 82 Finding that the words “come here,” in this context, constitute a seizure would not unduly
restrict a police officer’s behavior. A “seizure” does not connote police misconduct. The
constitution only forbids unreasonable seizures. Gherna, 203 Ill. 2d at 181 (“only those
seizures which are ‘unreasonable’ violate the fourth amendment”). Many seizures are perfectly
reasonable.
¶ 83 Outside of the investigatory context, where the police are exercising their “community
caretaking functions, totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute” (Cady v. Dombrowski, 413 U.S. 433,
441 (1973)), the police may reasonably seize an individual without having any suspicion of
wrongdoing. See People v. McDonough, 239 Ill. 2d 260, 272 (2010) (to justify seizure under
community-caretaking exception, police “must be performing some function other than the
investigation of a crime,” and the “seizure must be reasonable because it was undertaken to
protect the safety of the general public”). The very point of the “community caretaking”
doctrine is to “uphold searches or seizures as reasonable under the fourth amendment when
police are performing some function other than investigating the violation of a criminal
statute.” Id. at 269. So if a police officer said “come here” to an individual for the purpose of
“helping children find their parents, mediating noise disputes, responding to calls about
missing persons or sick neighbors, or helping inebriates find their way home” (id.), even if a
court determined that a seizure occurred, it would be a perfectly reasonable, and therefore
constitutional, seizure.
¶ 84 But in the investigatory context, it is—and should be—a different matter. In an
investigatory context, like this case, the police must have some suspicion that the individual
seized is involved in some kind of wrongdoing. See People v. Ray, 327 Ill. App. 3d 904, 911
(2002) (“[A] search or seizure is ordinarily unreasonable in the absence of individualized
suspicion of wrongdoing.”). There is nothing unjustified about holding that, when an officer
says “come here” to an individual for an investigatory purpose, the full protection of the fourth
amendment—that the officer have some reasonable suspicion of criminal
wrongdoing—protects that individual.
- 16 -
¶ 85 IV
¶ 86 Having found that no seizure occurred, the majority had no occasion to consider whether
the seizure lacked a reasonable, articulable suspicion. I would do so and hold that the seizure
violated the fourth amendment.
¶ 87 The State makes no attempt to argue that the officers had reasonable suspicion to stop
defendant, nor do I see any. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (police may
conduct investigatory stop if they have reasonable, articulable suspicion that suspect was
involved in criminal activity). The only reason given for the stop was that defendant was in a
high-crime neighborhood, which is insufficient to justify an investigatory stop. See People v.
Surles, 2011 IL App (1st) 100068, ¶ 39 (“This court has *** rejected the argument that *** a
defendant’s presence in a ‘high-crime area’ is a legally sufficient basis for performing a Terry
stop and frisk.”); People v. Harris, 2011 IL App (1st) 103382, ¶ 14 (“A conclusory and
unsubstantiated statement that a location is a ‘high crime area’ is insufficient to establish that
consideration for purposes of justifying a Terry stop.”). Consequently, I would conclude that
the officers’ seizure was unlawful.
¶ 88 Finally, I would conclude that the fruits of the illegal seizure—the narcotics that defendant
dropped—should be suppressed. Contrary to the State’s argument, defendant did not abandon
the marijuana by dropping it to the ground. See People v. Henderson, 2013 IL 114040, ¶ 44
(where, during course of seizure, defendant flees and drops contraband, causal chain between
illegal seizure and recovery of contraband was broken, and evidence need not be suppressed).
¶ 89 Rather, defendant discarded the marijuana in response to the illegal seizure—which was
effected when defendant complied with the officers’ order—and the fruits of that seizure
should have been suppressed. See People v. Wilson, 141 Ill. App. 3d 156, 159 (1986) (“If the
police [seizure] was improper, the State may not rely upon the defendant’s dropping the bag to
justify the subsequent seizure and search of the bag.”); United States v. Wilson, 953 F.2d 116,
127 (4th Cir. 1991) (suppression required where defendant abandoned coat containing drugs
“after he had been illegally seized” and abandonment “was clearly the direct result of the
illegal seizure” (emphasis in original)); Jones v. State, 28 A.3d 1046, 1055 (Del. 2011)
(“[S]uppression is required if the abandonment [of contraband] was a direct consequence of
the illegal seizure.”); Wingate v. State, 764 S.E.2d 833, 838 (Ga. 2014) (“Because [defendant]
was unlawfully detained at the time he apparently discarded the marijuana, the marijuana was
the product of an unlawful seizure.”).
¶ 90 I would reverse the trial court’s denial of defendant’s motion to quash arrest and suppress
evidence and reverse defendant’s conviction outright.
- 17 -