People v. Flunder
163 N.E.3d 757
Ill. App. Ct.2021Background
- Plainclothes officers in an unmarked car approached Telly Flunder at a gas station in the afternoon and asked his business and for identification.
- During the ~15-second interaction Flunder fidgeted, reached toward his pocket, and bent down out of the officers’ view while his vehicle sat between him and the officers.
- Officer Bachlar walked around the vehicle, performed a protective patdown, felt and retrieved a .38 caliber handgun after Flunder said it was a "pea-shooter."
- At the suppression hearing the trial court initially granted Flunder’s motion to suppress the gun, but later granted the State’s motion to reconsider and denied suppression; at a bench trial the court convicted Flunder of unlawful use of a weapon by a felon and sentenced him to six years’ imprisonment.
- On appeal the central question was whether a frisk during a consensual encounter (absent reasonable, articulable suspicion sufficient for a Terry stop) is permissible; the appellate court reversed, holding the frisk unlawful and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an officer may conduct a protective frisk during a voluntary, consensual encounter absent reasonable, articulable suspicion to effect a Terry stop | The encounter was consensual; when defendant bent out of view and given recent shootings in the area, the officer reasonably feared for his safety and lawfully frisked | A frisk presupposes the right to make a stop; no reasonable suspicion supported a Terry stop here, so any frisk was unlawful | Reversed: frisk unlawful without a lawful stop; officer’s fear was not reasonable on these facts and the gun should have been suppressed |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (establishes investigatory stop and protective frisk standards requiring reasonable, articulable suspicion)
- People v. F.J., 315 Ill. App. 3d 1053 (Ill. App. Ct. 2000) (a frisk presupposes the right to make a stop; officer may not frisk during a non-seizure field interrogation)
- People v. Sorenson, 196 Ill. 2d 425 (Ill. 2001) (officer may frisk only if he reasonably believes the person is presently armed and dangerous)
- Illinois v. Wardlow, 528 U.S. 119 (U.S. 2000) (headlong flight is indicium of evasive, suspicious behavior)
- People v. Wells, 403 Ill. App. 3d 849 (Ill. App. Ct. 2010) (consensual encounter converts to a stop when officer initiates a patdown, requiring reasonable suspicion)
- People v. Olivera, 164 Ill. 2d 382 (Ill. 1995) (all evidence from original trial may be considered when assessing double jeopardy and sufficiency for retrial)