People v. Borders , 2020 IL App (2d) 180324 ( 2020 )

2020 IL App (2d) 180324No. 2-18-0324
Opinion filed May 15, 2020
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Stephenson County.
)
Plaintiff-Appellee, )
)
v. ) No. 17-CM-109
)
ALI BORDERS, ) Honorable
) James M. Hauser,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Zenoff and Jorgensen concurred in the judgment and opinion.
OPINION
¶ 1 The defendant, Ali Borders, was convicted of two counts of resisting a peace officer’s
performance of authorized acts (720 ILCS 5/31-1(a) (West 2018)). He now appeals, arguing that
(1) he was not proved guilty beyond a reasonable doubt, because the acts he resisted were not
authorized, and (2) he could not be convicted of resisting arrest, because he did not know that he
was being arrested until after the arrest occurred. We reverse.
¶2 I. BACKGROUND
¶ 3 The following facts are drawn from the evidence at trial, which included the testimony of
Freeport police officers Donald Heath and Andrew Laurent, the footage from Heath’s bodycam,
2020 IL App (2d) 180324and Borders’s testimony. Where precise times are stated, they are taken from the timestamps on
the bodycam footage.
¶4 In the early morning of February 10, 2017, someone placed a 911 call but then hung up.
At about 5:13 a.m., Heath was dispatched to 479 South Miami Street in Freeport, the location of
the call. Heath and another officer arrived at the house about 5:17 a.m. and knocked on the front
door.
¶5 Alicia Hall, Borders’s sister, answered the door. Appearing calm, she said that she needed
to get dressed and went back inside. The front porch door locked behind her. Heath commented
to the other officer that Hall was “10-96,” a term he defined at trial as “irrational” or “somebody
with possibly some mental instability.” About a minute later, Hall yelled that someone was going
out the side window. The two officers began searching outside of the house and Heath called for
backup. Someone opened a side door and shut it again, but there was no sign of anyone leaving
the house.
¶ 6 Heath could hear a baby crying and another officer heard people arguing. Heath could not
tell who was in the house and thought Hall could be hiding someone inside. Earlier that night,
Heath had responded to a 911 call about an incident at the same house. That incident was resolved
when Hall told Heath that she had had an argument with Borders, who lived with her, but
everything was now fine. Heath testified that he had no reason to believe that Borders was
involved in the current situation.
¶ 7 At 5:20 a.m., Heath knocked on the front door again. Other officers arrived, including
Laurent; Heath told them that Hall “came to the door like nothing [was] going on” but then went
back inside. Heath began walking back and forth near a corner of the house, keeping an eye on
the side and front of the house. Hall came out another door, talking on a cell phone. Over the
-2-
2020 IL App (2d) 180324radio, an officer reported that Hall said everything was fine, denied that anyone else was inside,
and would not let the police enter the house. Heath responded, “Then why did she call?”
¶ 8 About 5:24 a.m., Hall appeared on Heath’s bodycam, still talking on the phone. Heath
tried to question her. Hall would not directly answer Heath’s questions, but she told him that
things were fine and that “the problem is removed.” Heath told her that the police had to come in
to check. Hall then yelled up to a second floor window for Borders to come down and let her back
into the house. She again stated that “the problem” was “removed.” At 5:25 a.m., Borders came
to the front door to let Hall inside. Laurent was standing nearby, talking with her. As she went
inside, someone gave a phone to Laurent.
¶ 9 During Hall’s interactions with police outside, the bodycam footage did not show any
visible injuries, and Hall, while sounding somewhat upset, did not indicate that she was in fear or
needed immediate assistance. At trial, there was no testimony that Hall appeared injured or that
the police believed her safety was at risk.
¶ 10 Laurent, who was still near the front door, began talking with Borders. Laurent asked if
they could come inside; Heath echoed this request. Borders, who was dressed only in shorts, said
that he wanted to put on a shirt but would come back and talk with the officers. He went inside.
Heath recounted events to Laurent, including his visit in response to the earlier 911 call. He told
Laurent that it was not clear who was involved in the current dispute. He reported that, when he
first arrived, everything had been calm until Hall yelled that someone was going out thewindow.
¶ 11 The cell phone Laurent was holding began to ring and Laurent answered it. Laurent
identified himself to the caller (Hall’s mother), noted that Hall had called 911 and had just gone
into the house, and asked if the caller knew why Hall called 911. About two minutes after Borders
had left to put a shirt on, he returned to the door, and Laurent passed the phone to him.
-3-
2020 IL App (2d) 180324¶ 12 Laurent then asked Borders whether he wanted to step onto the porch, saying, “I mean, I’m
not saying I’m going to go inside or anything.” Although he was barefoot, Borders complied,
stepping onto the top step of the porch. Borders told Laurent that he had been asleep and did not
know what was going on at the house.
¶ 13 About this time, the dispatcher advised Heath that Hall had called 911 again and asked for
the police to leave. Hall was told that she had to go talk with the officers before they would leave,
but said she did not want to go outside.
¶ 14 At 5:29:33 a.m., Borders asked if he could go in to get shoes and socks. Within the next
ten seconds, the following occurred. Borders began turning to go in the door. Laurent said that
he wanted Borders to stay outside and he put his hand on Borders’s arm to keep him from entering
the house. Borders tried to pull away; someone said, “If she says she doesn’t want [inaudible]
inside”; and Laurent held Borders outside.1 Heath called over, “She has to come to the door and
talk to us.” The door closed with Borders still outside.
¶ 15 Held by Laurent on the steps, Borders again asked to go in to get shoes and socks. A
second later, Heath began moving quickly toward them, stating, “No, we’re done playing games.”
As he was grabbed by Heath, Borders shouted, “sir” and “lock the door, man.” Heath and Laurent
forced Borders to the ground, yelling at him to put his hands behind his back. Borders, who was
lying face down, shouted that if he had a seizure it would be their fault. Other officers were
shouting as well, threatening to use a taser on Borders. Heath and Laurent testified that Borders
struggled and did not comply with their commands to stop resisting and put his hands behind his
back. Borders denied this, testifying that he did not struggle and that the officers were hampered
1 According to the complaint form filled out by Laurent, Borders was 5’9” tall and weighed
155 pounds.
-4-
2020 IL App (2d) 180324in bending his arm to handcuff him because Heath was kneeling on his shoulder. It is undisputed
that Heath had Borders in handcuffs within 45 seconds of beginning to move toward him.
¶ 16 As Heath escorted Borders to the police car, Borders asked again whether he could get
some shoes. Heath told him no. Borders asked what he had done, and Heath replied, “Resisting,
right now.” Borders asked, “Resisting? I wasn’t the one being arrested.” Heath said that Borders
was the one being arrested, because he was “resisting our attempts to investigate this,” adding that
Hall “need[ed] to quit calling 911.” Heath then complained again that Hall kept calling 911.
Borders said that he did not know why Hall had called 911; he had been sleeping. He also denied
Heath’s accusation that he intentionally shut the door on Laurent. When another officer pointed
out that Borders still did not have shoes on, Heath ordered the officer to “get [Borders] out of
here.” Borders was later taken to a hospital.
¶ 17 On February 14, 2017, Borders was charged via complaint with a single count of violating
section 31-1(a) (720 ILCS 5/31-1(a) (West 2016)), “resisting/obstructing a peace officer,” by
refusing to put his hands behind his back and pulling his arms away. The State later filed an
amended information, charging him with two counts of violating the same statute. Count I charged
Borders with resisting his arrest by Heath when he “stiffened his arms to prevent arrest.” Count
II charged Borders with resisting Laurent’s performance of an authorized act when he “refused to
comply with commands, pulled away, and refused to be handcuffed.”
¶ 18 On March 27, 2018, the case proceeded to a jury trial. Heath was the first witness, and
while he was on the stand the footage from his bodycam (from his arrival at the house through
Borders’s arrest) was played for the jury. In addition to the above events, Heath testified to the
following. When Heath first arrived at the house, he did not intend to go inside the house, he just
wanted to “make contact to find out why 911 was called.” However, if there was “any indication
-5-
2020 IL App (2d) 180324of a disturbance,” the police needed to “verify everybody [was] okay.” The police did not leave
when Hall asked them to, because they knew by then that someone else was inside.
¶ 19 Borders was generally cooperative with police requests. However, Heath decided to arrest
him when the door closed, because Heath believed that Borders had deliberately attempted to
obstruct the investigation by closing the door. Before arresting Borders, Heath had not ordered
Borders to move out of the way, to open the door, or to let them inside. Nevertheless, Heath
believed that Borders knew that they were trying to get inside. Heath testified that Borders did not
have to let them in, but that closing the door and preventing them from gaining entry constituted
obstruction.
¶ 20 Heath also initially testified that, prior to grabbing Borders, he told Borders that he was
under arrest and to put his hands behind his back. However, Heath was impeached by the bodycam
footage, which showed that, before grabbing Borders, Heath never told Borders that he was under
arrest. Instead, Heath said “we’re done playing games,” moved toward Borders, and then grabbed
him to lift him off the steps and put him on the ground, meanwhile telling Borders to put his hands
behind his back. Only after Borders was handcuffed did Heath tell him that he was under arrest.
¶ 21 Laurent testified next. Soon after he arrived at the house that morning, he decided that the
police needed to enter the house to verify that everyone was okay. However, he did not attempt
to enter the front door while he was interacting with Hall and Borders, even though it was open a
few times when he was near it and Borders kept it propped open during their conversation. Borders
repeatedly told Laurent that he had been asleep and did not know what had been going on in the
house. Laurent testified that Borders turned to go back inside after his sister Hall told him to do
so. (Neither Heath nor Borders testified to this, and the bodycam did not record any such statement
by Hall.) At that point, Laurent told Borders to stay outside and he put his hand on Borders’s arm
-6-
2020 IL App (2d) 180324to restrain him from entering the house. Laurent testified that he was trying to detain Borders, not
arrest him.2
¶ 22 Because Borders was still trying to go inside, Laurent and Heath lifted Borders up and
“swung his torso to the ground.” Borders put his arms under his body on the ground. Laurent
believed that Borders was doing this to avoid being handcuffed, so Laurent punched Borders in
the back where he lay to “distract” him and enable the other officers to handcuff him. Laurent
testified that he was not sure how the officers were able to get Borders handcuffed because “it
happened so fast.” After Borders was handcuffed, someone told Borders that he was under arrest.
¶ 23 Borders was the final witness. He was 21 years old. He testified that he had been in bed
asleep when the police arrived on the morning of the incident. He woke to the sound of his
sisterHall throwing rocks at his window and calling his name. He did not know what was going
on. Wearing only a pair of shorts, he came downstairs to see why she was calling his name. Hall
was standing outside near the front porch, talking with Laurent. When Borders got near the front
door, an officer told him to come outside and that, if he did not, they would come in. He complied
to avoid them entering the house. Hall walked past him as he opened the door. The police did not
try to stop her or try to enter the house. Borders asked if he could put on a shirt and Laurent agreed
to that.
2 Laurent’s specific testimony on this point was: “You know, sometimes people are placed
in handcuffs without being under arrest. And I didn’t want to arrest him. *** I just wanted to
detain him in handcuffs was my intent.” Upon later being asked whether, when Borders was asked
to put his hands behind his back, he was being arrested, Laurent answered, “No. He was going to
be detained.”
-7-
2020 IL App (2d) 180324¶ 24 Borders then returned and stepped outside. Laurent asked him repeatedly what was going
on, and Borders explained repeatedly that he did not know because he had just woken up. Borders
then asked Laurent if he could put on socks. Borders reached for the door and Laurent grabbed
his arm. Borders let go of the door and it closed.
¶ 25 Laurent began trying to move Borders and throw him off the porch. Borders described
Heath’s approach this way: “The other guy came around. I heard him saying something, didn’t
know what he was saying at the time.” The two officers threw him off the porch. He landed face
down on some bricks lining the flower bed there and people began hitting him on his back, his
face, and the back of his head. Heath had hold of Borders’ left arm and was bending it behind
Borders while he had his knee on Borders’ shoulder “where it rotates.” Borders was yelling,
because all of this hurt.
¶ 26 Borders testified that no one told him to come down the stairs or get out of the way before
he was grabbed and taken to the ground. After he was on the ground, while he was being hit,
someone was yelling “Stop resisting and put your hands behind your back.” Borders testified that
his hands were behind his back at that point but the officers could not bend his arms enough to
handcuff him because Heath’s knee was on his shoulder. Borders denied that he locked his arms
or struggled to prevent arrest. He lost consciousness once when he was in the police car, and he
was shaking and could not talk when he got to the booking room. He was taken to the hospital.
¶ 27 The jury found Borders guilty on both counts, and he was sentenced to four days in jail and
one year of conditional discharge. He now appeals.
¶ 28 II. ANALYSIS
¶ 29 On appeal, Borders contends that the evidence was not sufficient to prove him guilty
beyond a reasonable doubt of either charge.
-8-
2020 IL App (2d) 180324¶ 30 In evaluating the sufficiency of the evidence, it is not the province of this court to retry the
defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant question is “ ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in
original.) Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The weight to be given to
the witnesses’ testimony, the determination of their credibility, and the reasonable inferences to be
drawn from the evidence are all matters within the jurisdiction of the trier of fact. People v. Smith,
185 Ill. 2d 532, 542 (1999); Collins, 106 Ill. 2d at 261-62. Likewise, the resolution of any conflicts
or inconsistencies in the evidence is also within the province of the fact finder. Collins, 106 Ill.
2d at 261-62. However, although the determinations of the trier of fact are given great deference,
they are not conclusive. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). We will set aside a criminal
conviction if the evidence as to any element of the offense “is so unreasonable, improbable, or
unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” Id.¶ 31 A. Count II—Laurent/Resisting orObstructing
¶ 32 We begin by addressing whether the evidence sufficiently supports Borders’ conviction of
resisting or obstructing Laurent in the performance of an authorized act. Borders was charged
with violating section 31-1(a) by refusing to comply with commands, pulling away, and refusing
to be handcuffed.
¶ 33 A person commits the offense of resisting or obstructing if he or she “knowingly resists or
obstructs the performance *** of any authorized act” by a person known to be a peace officer. 720
ILCS 5/31-1(a) (West 2018). As can be seen from the statute’s language, a conviction of this
offense requires that the defendant knew both that (1) the person obstructed or resisted was a peace
officer and that (2) the defendant’s actions would obstruct or resist the officer’s authorized act.
-9-
2020 IL App (2d) 180324Id.; see also People v. Kotlinski, 2011 IL App (2d) 101251, ¶ 39. Innocent or inadvertent conduct
does not violate section 31-1(a). People v. Raby, 40 Ill. 2d 392, 398 (1968). Further, the officer
must be engaged in an “authorized act within his or her official capacity.” 720 ILCS 5/31-1(a)
(West 2018). If the officer was not engaged in an authorized act when the resistance or obstruction
took place, the defendant has not violated section 31-1(a) and any conviction of that offense must
be reversed. People v. Slaymaker, 2015 IL App (2d) 130428, ¶ 12.
¶ 34 The issue is whether the evidence, viewed in the light most favorable to the State, was
sufficient to permit the jury to find that Borders knowingly resisted or obstructed Laurent’s
performance of an authorized act by refusing to comply with commands, pulling away, and
refusing to be handcuffed. At trial, the only commands that Laurent testified he gave Borders
occurred after Borders asked to put on socks and turned to go inside—Laurent told him to stay
outside and later to put his hands behind his back. The other alleged conduct that was the basis of
the charge—pulling away and refusing to be handcuffed—occurred during this same interaction.
The State argued that all of this conduct violated section 31-1(a) because it prevented Laurent from
going inside the house. We consider whether Laurent was authorized to enter the house and, if he
was, whether he was authorized to seize Borders to accomplish that entry.
¶ 35 The fourth amendment guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.
Unlawful physical entry into the home is the “chief evil against which the fourth amendment is
directed.” People v. Jones, 2015 IL App (2d) 130387, ¶ 13 (citing Payton v. New York, 445 U.S.
573, 585 (1980)). “Accordingly, absent exigent circumstances, the police may not enter a private
residence to make a warrantless search or arrest.” Id. “Thus, an officer’s entry into the defendant’s
- 10 -
2020 IL App (2d) 180324home in violation of the fourth amendment is not an ‘authorized act’ for purposes of section 31-1
[citation], even if the entry is undertaken pursuant to an official investigation.” Id. ¶ 11.
¶ 36 The State argues that, here, the police were permitted to enter Borders’s and Hall’s home
without a warrant under the “emergency aid” exception to the fourth amendment. That exception
allows police to enter a residence if (1) they have reasonable grounds to believe that an emergency
is at hand and that their immediate aid is necessary to assist in the protection of life or property,
and (2) there is a reasonable basis for connecting that emergency with the residence. People v.
Ferral, 397 Ill. App. 3d 697, 705 (2009). “The reasonableness of the officer’s belief concerning
the existence of an emergency is determined by the entirety of the circumstances known to the
officer at the time of entry.” Id.¶ 37 As the State points out, the emergency-aid exception has been invoked in cases involving
911 calls. See, e.g., People v. Greene, 289 Ill. App. 3d 796, 801 (1997). However, even when
there has been a 911 call, the exception still requires that, at the time of the entry, the officer had
a reasonable belief based on all the circumstances known to him or her that an emergency existed
and immediate aid was necessary to protect life or property. Id. at 801-02.
¶ 38 The State asserts that Heath and Laurent reasonably believed that an emergency required
their entry into the house, stressing that the officers responding to the 911 hang-up did not know
what the situation was, Hall’s shout that someone was going out a window created a sense of chaos,
and the argument heard by one officer indicated that others beside Hall were likely inside the
house. Moreover, Hall refused to answer most of the officers’ questions when she came outside
and then she went back inside, preventing them from investigating further.
¶ 39 However, the evidence also shows that Heath and Laurent believed that Hall was the person
who had placed the 911 call and that they did not suspect Borders of any criminal activity with
- 11 -
2020 IL App (2d) 180324respect to Hall. During Hall’s perambulations outside the house, they had several minutes to
observe her and could see that she was not injured. They were aware that Hall had asked for them
to leave. When Borders came to the door, he voluntarily agreed to speak with them, and he
voluntarily returned to the door to do so after going inside to get a shirt. By the time that Borders
turned to go back inside to get socks and shoes, the police had been at the premises for about 15
minutes, without attempting to enter the house. In light of this evidence, we conclude that, when
Laurent ordered Borders to remain outside and seized Borders, he did not have a reasonable basis
for believing that an emergency required his entry into the house to protect life or property.
¶ 40 Our determination is supported by the case law. For instance, in People v. Koester, 341
Ill. App. 3d 870 (2003), officers responded to a residence from which someone had placed a 911
call but then hung up. The responding officer testified that a 911 hang-up was treated as an
emergency because of the concern that a victim who had been assaulted might be prevented from
completing the call or coerced into denying it. Id. at 872. When the officer arrived, there were
several cars parked nearby and it appeared that a party was going on in the house. The officer
knocked, and a resident answered. The resident said that the caller had likely been his sister and
that she was fine. He refused to allow the police to enter without a warrant. The officer called his
supervisor, who arrived 10 to 15 minutes later. While waiting for the supervisor to arrive, there
was no yelling, screaming, or sounds of violence from inside the home, and the resident remained
outside with the police. After speaking with a state’s attorney, the officer told the resident that
police officers had the authority to enter to make sure everyone was all right. Id. at 872-73.
However, the officers did not take any first aid kit into the house and instead brought in portable
equipment for breath testing. The officers entered and searched the house, discovered several high
- 12 -
2020 IL App (2d) 180324school students, and charged them with underage drinking. The trial court ruled that the entry had
violated the fourth amendment and it suppressed the evidence. Id. at 874.
¶ 41 We affirmed, finding that “the officers’ purported belief that an emergency situation
existed in the home [was] belied by the record,” including the officers’ failure to ask to speak to
the 911 caller, the wait of almost 30 minutes before entering the home, and the fact that the
equipment brought into the home was oriented toward testing for alcohol consumption instead of
first aid or safety. Id. at 875. Thus, the grounds for the emergency-aid exception were not present.
Id.
¶ 42 The facts supporting reversal in Jones, 2015 IL App (2d) 130387, were at least as
compelling as those presented here. In that case, a police officer responded to a report of a possible
domestic disturbance. When the officer arrived, he saw the defendant and a woman arguing on
the enclosed front porch. The officer knocked on the porch door and then opened it and entered
the porch, saying that he was there to investigate a domestic disturbance. Id. ¶ 4. The defendant
refused the officer’s requests to step outside and swore at the officer, saying that there was no
problem and that the officer should leave. Id. ¶ 5. The officer could see the woman and observe
that she had no visible injuries. Just as in this case, at trial the officer testified that he was
concerned for everyone’s safety and did not know who was inside the house. Id. ¶ 6. When the
defendant began walking toward the front door of the house, the officer grabbed him to stop him.
The defendant pulled away and the officer told him that he was under arrest for resisting. Id. ¶ 7.
The defendant continued to struggle and was eventually subdued by several officers.
¶ 43 We reversed the defendant’s conviction of violating section 31-1, finding that the police
officer’s continued presence in the home, when there was no evidence of any emergency or need
for immediate assistance, violated the fourth amendment:
- 13 -
2020 IL App (2d) 180324“While [the officer] was undoubtedly authorized to conduct some initial
investigation, in doing so he found no evidence of domestic violence, or of any other
offense for that matter. The report that prompted the investigation stated only that a verbal
argument was occurring, accompanied by the sound of objects breaking. [The officer],
too, heard arguing and things breaking, but, even after entering defendant’s home, he
discovered no evidence of violence. *** [T]he ostensible victim[ ] had no visible injuries
and did not request assistance. [The officer]’s authority to remain in defendant’s home
effectively ended at that point. His remaining in the home in an attempt to detain defendant
was an unauthorized act.” Jones, 2015 IL App (2d) 130387, ¶ 16.
Because the officer’s presence in the home was unauthorized (as was his attempt to detain the
defendant), the defendant’s resistance and obstruction did not violate section 31-1. See also City
of Champaign v. Torres, 214 Ill. 2d 234, 244 (2005) (“section 31-1 would not prohibit a person
from using reasonable force to prevent [an] officer from making an unconstitutional entry into his
or her [home]”).
¶ 44 Here, as in Koester and Jones, there was no evidence of any imminent threat to life or
property. The mere fact that neither Hall nor Borders would allow the police to enter the house
was not, in itself, suspicious or grounds for believing that the situation was an emergency, because
their refusal was their constitutional right. “[E]ven if an occupant chooses to open the door and
speak with the officers, the occupant need not allow the officers to enter the premises and may
refuse to answer any questions at any time.” Kentucky v. King, 563 U.S. 452, 470 (2011).
Although Hall’s shout about someone going out a window caused confusion, after that the police
were able to speak with Hall as well as Borders and confirm that Hall displayed no injuries and
was not restrained inside. Hall clearly conveyed to them that she did not want their assistance and
- 14 -
2020 IL App (2d) 180324wanted them to leave. As further evidence that the police themselves did not view the situation as
an emergency involving personal safety, the police did not attempt to enter the house although the
front door was opened several times when they were nearby. Laurent’s decision to issue
commands to Borders and restrain him from reentering the house occurred after the police had
been at the house for about 15 minutes. Given these facts, we find that, as in Koester and Jones,
the State has not established that the emergency-exception applies or that Laurent was engaged in
an authorized act of seeking entry into the house when the charged conduct occurred. Accordingly,
Borders had the right to ignore Laurent’s command to stay outside.
¶ 45 Nor did Laurent have the authority to detain Borders and subsequently seize him. If the
police suspect that a person has committed or is committing a crime, they may briefly detain the
person for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 22 (1968); see also People v.
Thomas, 198 Ill. 2d 103, 108-09 (2001). To justify such a detention, “[t]he officer must have
observed unusual conduct, leading to a reasonable, articulable suspicion that the person has
committed or is about to commit a crime,” and the officer’s suspicions must amount to “more than
a mere hunch.” (Internal quotation marks omitted.) People v. Shipp, 2015 IL App (2d) 130587,
¶ 34. Otherwise, “when an officer, without reasonable suspicion or probable cause, approaches an
individual, the individual has a right to ignore the police and go about his business. [Citation.]
And any ‘refusal to cooperate, without more, does not furnish the minimal level of objective
justification needed for a detention or seizure.’ ” Illinois v. Wardlow, 528 U.S. 119, 125 (2000)
(quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).
¶ 46 Here, Borders’s refusal to allow a warrantless entry into his home and his attempt to reenter
that home to put on socks and shoes do not meet the threshold of “objective justification needed
for a detention or seizure.” Id. Laurent never testified that he believed Borders had committed or
- 15 -
2020 IL App (2d) 180324was committing a crime, and indeed on appeal the State does not attempt to justify Laurent’s
seizure of Borders.
¶ 47 The State instead argues that Laurent was authorized to arrest Borders (and that, even if
the arrest was unconstitutional, Borders could not lawfully resist it). The problem with this
argument is that Laurent himself testified that he was not attempting to arrest Borders. “[W]here
a police officer is not trying to make an arrest, section 31-1 would not prohibit a person from using
reasonable force to prevent the officer from making an unconstitutional entry” into his or her home.
Torres, 214 Ill. 2d at 244.
¶ 48 Laurent testified that, when he placed his hand on Borders’s arm to prevent him from
entering the house and later told Borders to put his hands behind his back, he wished to restrain
Borders to allow the police to more easily search the house without interference. As discussed,
however, the police were not authorized to enter the house and search it. See Jones, 2015 IL App
(2d) 130387, ¶ 16; Koester, 341 Ill. App. 3d at 875. Laurent likewise was not authorized to seize
Borders to effectuate any such entry and search. Jones, 2015 IL App (2d) 130387, ¶ 16 (officer’s
attempts to restrain defendant from entering his home were not authorized where officer himself
had no authority to enter home and had neither probable cause nor a reasonable, articulable
suspicion that a crime was being committed); see also Torres, 214 Ill. 2d at 244.
¶ 49 As Laurent was not authorized to detain or seize Borders, Borders was at liberty to ignore
Laurent’s commands to stay outside and put his hands behind his back, to pull away from Laurent,
and to resist being handcuffed for the purpose of temporary detention. Shipp, 2015 IL App (2d)
130687, ¶ 49 (“where a police officer is not trying to make an arrest, section 31-1 does not prohibit
resistance”); Jones, 2015 IL App (2d) 130387, ¶ 16. Accordingly, the verdict against Borders on
count II must be reversed. Slaymaker, 2015 IL App (2d) 130428, ¶ 12.
- 16 -
2020 IL App (2d) 180324¶ 50 B. Count I—Heath/Resisting Arrest
¶ 51 As we have noted, a conviction under section 31-1(a) requires that the officer be engaged
in an authorized act when the resistance or obstruction occurs. When the action being taken by an
officer is an arrest, however, the analysis is slightly different. Under section 7-7 of the Criminal
Code of 2012 (Code) (720 ILCS 5/7-7 (West 2018)), “[a] person is not authorized to use force to
resist an arrest which he knows is being made *** by a peace officer ***, even if he believes that
the arrest is unlawful and the arrest in fact is unlawful.” Accordingly, an arrest is considered an
“authorized act” for the purposes of section 31-1 even if it was an unlawful arrest. Torres, 214 Ill.
2d at 242. “ ‘Consequently, resistance of even an unlawful arrest by a known officer’ is a violation
of the statute.” Id. (quoting People v. Locken, 59 Ill. 2d 459, 465 (1974)).
¶ 52 In this case, all of the officers were in uniform when they encountered Borders. Further,
the evidence shows that, although Heath did not suspect Borders of being involved in any criminal
conduct and did not initially plan to arrest anyone, by the time Heath said “we’re done playing
games,” he intended to arrest Borders. (This is in contrast to Laurent, who testified that he did not
seek to arrest Borders but merely to detain him securely so that the police could search the house
more easily.) Thus, if Borders knowingly resisted an attempt by Heath to arrest him, he was
properly convicted of count I, which charged him with resisting arrest by stiffening his arms.
¶ 53 Borders raises several arguments on this issue. First, he argues that he did not know that
he was being arrested until after Heath grabbed him and began trying to handcuff him. He also
argues that he did not knowingly resist that arrest—that is, any resistance was both momentary
and inadvertent (because it took him a moment to realize that he was being arrested, and his arms
were in a position where they could not easily be bent). He points out that no one told him thathe
- 17 -
2020 IL App (2d) 180324was under arrest until after he was already handcuffed on the ground.3 Further, the entire effort to
handcuff him was over in less than 45 seconds. He argues that the evidence does not show that he
was consciously aware that he was under arrest and thus does not establish that he knowingly
resisted the arrest. See 720 ILCS 5/4-5 (West 2016) (a person acts “knowingly” if “he or she is
consciously aware *** that those circumstances exist”). He notes that, even after he was
handcuffed and was being led to the police car, he expressed confusion about what he had done
wrong and the fact that he had been arrested. The State responds that there was a struggle lasting
more than 30 seconds before Borders was handcuffed and that any physical struggle is sufficient
to constitute resistance, because a person cannot resist even an unlawful arrest.
¶ 54 The State first contends that the brevity of the struggle between Borders and the police is
not dispositive. It notes that, in People v. Thompson, 2012 IL App (3d) 100188, ¶ 14, a conviction
of resisting arrest was sufficiently established by evidence that the defendant threw his elbows at
the arresting officer’s head and that it took between 30 and 45 seconds for him to be handcuffed.
The most obvious way in which Thompson is distinguishable is that there the arresting officer told
the defendant that he was under arrest but the defendant continued to struggle after that. Id. ¶¶ 6,
3 The State disingenuously attempts to argue that the evidence allowed the jury to find that
Heath told Borders that he was under arrest before handcuffing him. This is not an accurate
summary of the evidence. Heath’s initial testimony that he “approached” Borders and “advised
him he was under arrest” was thoroughly impeached. Heath first admitted that he might not have
made that statement. Then, after viewing the relevant portion of the bodycam footage (which does
not contain any statement about arrest) and being asked at what point he told Borders that he was
under arrest, Heath affirmatively stated, “I did not.” In our view, this evidence did not permit the
jury to conclude that Heath actually told Borders that he was under arrest before handcuffing him.
- 18 -
2020 IL App (2d) 1803247. Thus, the moment when the defendant became aware that he was being arrested was clearly
identifiable. Here, by contrast, no one told Borders that he was under arrest until the struggle was
over and he was lying on the ground handcuffed. One cannot knowingly resist an arrest until one
knows that it is occurring. We also note that in Thompson the evidence showed that the entire
course of events actually took longer, because there was testimony that it took “30 to 45 seconds,
and the assistance of another officer, to gain control of defendant after the two went to the ground,”
which itself occurred after the defendant had been told that he was under arrest and placed in a
hold. (Emphasis added.) Id. ¶ 6. Here, by contrast, the entire course of events—from Heath’s
statement that he was “done playing games” to Borders’s being handcuffed—took less than 45
seconds, and the starting point of any period of resistance was unclear because no one told Borders
that he was under arrest until after he was handcuffed.
¶ 55 The State also argues that Borders being told to put his hands behind his back was sufficient
to establish that he knew he was being arrested. Further, he was seized by uniformed officers, so
he should have understood that he was under arrest.
¶ 56 The statement, “you are under arrest” is not absolutely necessary to create the knowledge
that one is being arrested. “Although the intention to arrest must be communicated, and
defendant’s understanding of that intent is a factor to be considered, ‘[t]he test must be not what
the defendant *** thought, but what a reasonable man, innocent of any crime, would have thought
had he been in the defendant’s shoes.’ ” People v. Howlett, 1 Ill. App. 3d 906, 910 (1971) (quoting
Hicks v. United States, 382 F.2d 158, 161 (D.C. Cir. 1967)); see also People v. McKinney, 62 Ill.
App. 3d 61, 67 (1978).
¶ 57 The State argues that Borders should have known that he was under arrest when uniformed
officers told him to put his hands behind his back. In support, the State cites People v. McCoy,
- 19 -
2020 IL App (2d) 180324378 Ill. App. 3d 954, 956-57 (2008), and Thompson. In both of these cases, however, the police
told the defendants that they were under arrest before the resistance occurred. Because there was
no real doubt about whether those defendants’ resistance was knowing, these cases are inapposite.
The State also cites McKinney. There, however, the defendant responded to police requests to
show himself by pulling out a gun and pointing it at an officer. McKinney, 62 Ill. App. 3d at 63.
Because this was a criminal act in itself, the defendant could have had no reasonable belief that he
would not be immediately arrested, and the “substantial struggle” that occurred constituted
knowing resistance to an arrest. Lastly, the State cites People v. Bahnfleth, 233 Ill. App. 3d 289(1992), and People v. Monteleone, 2018 IL App (2d) 170150, for the general proposition that
knowledge of an arrest can be proven by circumstantial evidence. While we have no quarrel with
this proposition, these cases do not involve resisting arrest and their facts are unlike those in this
case. See Bahnfleth, 233 Ill. App. 3d at 292 (where defendant was transported to police station
and was told he was being charged with driving under the influence, he had been arrested);
Monteleone, 2018 IL App (2d) 170150, ¶ 26 (defendant charged with drug offenses asserted he
did not know that the drugs he possessed and distributed contained a controlled substance; no issue
of arrest involved). They therefore offer no real support for the State’s arguments about whether
and when Borders should have known that he was under arrest.
¶ 58 More helpful is People v. Ostrowski, 394 Ill. App. 3d 82, 98 (2009), in which the defendant
resisted arrest for three or four minutes after police told him that he was under arrest, first walking
away from the police and then struggling with them. Importantly, we found that, because the
police approached the defendant from behind and the defendant was intoxicated, it likely took him
“a minute or two to comprehend what was happening.” Id. However, after that period of dawning
- 20 -
2020 IL App (2d) 180324awareness, the defendant continued to resist being handcuffed. We therefore found that the
evidence sufficiently established that he knowingly impeded police efforts to arrest him. Id. at 99.
¶ 59 Here, by contrast, it was 5:30 in the morning and there was no evidence that Borders had
been awake for more than five minutes when, despite the fact that he was voluntarily cooperating
with police requests that he speak with them, he was restrained from reentering his home. Less
than 10 seconds later, without telling him that he was under arrest, Heath and Laurent grabbed him
and forcefully put him on the ground, telling him to put his hands behind his back. Moreover,
Borders had not committed any crime, nor did the police have probable cause to believe that he
had committed one. He was in handcuffs less than 45 seconds after Heath began moving toward
him. Given all of this, we think that it would have taken a reasonable person in Borders’s situation
most if not all of that time to realize that he was being arrested. We note that, as in Ostrowski,
Borders was grabbed from behind. Further, unlike in Ostrowski and the cases cited by the State,
Borders was not told that he was under arrest until after he was handcuffed. Even viewed in the
light most favorable to the State, the evidence did not establish beyond a reasonable doubt that
Borders knowingly resisted arrest. We therefore reverse his conviction on count I, in addition to
our previous reversal of his conviction on count II.
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated, the judgment of the circuit court of Stephenson County is reversed.
¶ 62 Reversed.
- 21 -
2020 IL App (2d) 180324No. 2-18-0324
Cite as: People v. Borders, 2020 IL App (2d) 180324Decision Under Review: Appeal from the Circuit Court of Stephenson County, No. 17-
CM-109; the Hon. James M. Hauser, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Anthony J. Santella, of
for State Appellate Defender’s Office, of Elgin, for appellant.
Appellant:
Attorneys Carl H. Larson, State’s Attorney,
for of Freeport (Patrick Delfino, Edward R. Psenicka, and Katrina M.
Appellee: Kuhn, of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
- 22 -