*1 THE ILLINOIS, Plаintiff-Appellant, PEOPLE OF THE STATE OF COLYAR,Defendant-Appellee.
MICHAEL (6th Division) First District No. 1 — 09—0323 Opinion filed December (James Alvarez, Anita Attorney, Chicago Fitzgerald, M. of State’s E. Miles Keleher, Ugo Buzzi, J. Attorneys, counsel), H. Assistant State’s of for People.
Algis Bahúnas, Park, of appellee. F. Orland for PRESIDING JUSTICE opinion GARCIA delivered the of the court: appeals The State the circuit granting court’s order Colyar’s Michael suppress motion to and a seized from the bullets argues car. defendant’s The State that after the officers a saw bullet car, plain they reasonably view inside the defendant’s believed the bul- thus, let a presence gun; lawfully indicated the officers acted car, ordering the defendant and his out passengers securing them, handcuffing seizing them front of the car bullet plastic bullets, view in a bag, contained other search- ing handgun the interior of the which resulted seizure of from hidden view. precipitate police
We affirm the circuit court’s because supported by probable action cause that a crime had occurred plain-view based on a sighting bullet because bullet se; Terry investigative stop contraband nor did the on the per based bul- recovery of more bullet, leading to the sighting plain-view defendant’s vehicle lets, into cause escalate failed officers activity when the of criminal contained evidence crime. the bullets was a possession suspicions their to confirm BACKGROUND single witness 28, 2008, testimony from On October sup- arrest and quash motion to pretrial presented *2 29, 2006, he was June testified that on Alcott press evidence. William the of Detective Johnson with police partnered officer a Homewood about force. At a suburban task part as of police department Glenwood East road in frontage a Super 8 Motel on p.m., they drove 8:45 lots parking the motel they routinely patrol Hazel Crest where would green of that nature.” The officers observed parties “for and stuff way. property, public motel not on the Honda on parked lot, Al- Officer parking photographic depicting exhibits1 Using police how he drove his unmarked Crown Victoria cott demonstrated turning from the Honda blocked him property, car the motel but onto located. After parking into lot where the motel entrance is the south police car building, parked motel Alcott driving around the Officer minutes, tops.” “[t]wo another to three and observed the Honda for in the running, the defendant was driver’s engine The Honda’s There no seat, in the car. were and there was second individual front nearby and “not a lot of traffic” the motel’s other vehicles or suspicious had a call of criminal doors. The officers not received activity from the motel. Honda, Officer Alcott observing
After two to three minutes of Honda, right kept to the police moved the car closer to but officers exited their car determine Honda so as to block it. Both why parked the Honda was there. The officers were dressed clothes, and “POLICE” wearing badge, tag, each with a a name vest observer, offi- they police were across the back. To the casual printed vests, their the officers carried handcuffs cers. In addition to armed, guns but their were flashlights. The officers were approached As on the Honda. the officers approached drawn as and, walking at a normal foot, a came out of the motel third individual rate, thе Honda before the officers arrived. entered Honda, with side of the Officer Alcott reached the driver’s
When side, Alcott told Officer passenger Detective Johnson had replied he he the entrance. The defendant blocking defendant was advised Officer up there to Detective Johnson parked pick someone. ap exhibits, evidence, not includedin the record admitted in are 1The peal. plastic bag
Alcott there was a center console the Honda. flashlight Officer Alcott shined his into the car and “see could a bullet sticking up” plastic in a bag on the center cartridge ap- console. The peared round, to be a rifle length. about three inches in Officer Alcott occupants ordered the three out of the Honda and “[b]rought subjects to “[Tjhey the front of the all placed vehicle.” were handcuffs immediately.” Officer Alcott testified moment the three men were in custody. After the men three were handcuffed Honda, and moved front of the Officer Alcott searched the defendant2 and pants pocket recovered from his one live round of what was lаter determined to be .454-caliber ammunition. The other two men were also searched. placed After three individuals were “in custody,” plastic Detective Johnson recovered bag from the console of the Honda and found to contain five rounds of am- .454-caliber munition, including the round in plain seen view.
Officer Alcott testified that after he recovered the from cartridge pocket and retrieved cartridges the other might he believed there be a partner, the Honda. Officer Alcott’s Johnson, Detective Redwing searched the Honda and a .454 recovered revolver from underneath the floor mat front floorboard. The defendant and his two passengers transported were the police subsequent station where investigation established the a registered defendant was owner of the Honda and had valid driver’s *3 license.
Following rested, Officer testimony, Alcott’s the defense as did the dates, subsequent State. On court argument the circuit court heard 6, 2008, and considered case law. On the that November court ruled the officers’ initial approach to Honda did not constitute a seizure and that the in in car plain seizure of bullets view the and from pocket However, “pursuant Terry.” defendant’s were lawful to possession stated, illegal of the bullets was not in The court itself. “Presumably theory the state’s is search incident to that lawful arrest that that that allowed them to conduct search.” The court reasoned without an to inquiry by the officers determine whether the defendant (FOID) possessed card, possession firearm owner’s identification of per granted bullets the motion sup- se crime. court to press as gun, to the but denied the motion as to the On bullets. 4, 2008, December the State filed a written motion to reconsider the and to suppression gun orally of the defendant moved reconsider the denial of the suppression of bullets. initially of as a
2Officer Alcott described the search the defendant “pat[ Jdown,” later custodial search. and characterized as a as to bul- reversed its decision January the court On *** case, inquired in this should “I the officer lets: believe of the bullets. the seizure regarding card there was F.O.I.D. are not il- card, the bullets an F.O.I.D. inquiry regarding] [an Without flowed from of all the evidence legal.” cоnsequence, the seizure As a arrest for based unlawful upon and custodial search illegal “the search card.” motion to F.O.I.D. The State’s possession of ammo without concerned reconsider, contending justifiabl[y] that “the officers were indicate the reasonably could safety for in those bullets their agreed upon. The presence gun,” and continued as of was entered however, impairment appeal its and notice State, filed certificate 2, 2009, could be ruled February on its reconsideration motion before upon.
ANALYSIS challenging the circuit single appeal divides issue on The State its first subparts. into six The State contends suppression court’s order the fourth approach implicate officers’ to the Honda did not that the Luedemann, See Ill. 2d N.E.2d amendment. *** (2006) (“the not violate police law that a officer does provides public merely by approaching person fourth amendment listen”). if the The circuit court questions person willing ask so ruled; challenged appeal. stands as it is on in plain next “the seizure of the bullet view
The State asserts that believed it constituted evidence of was constitutional where the activity, compartment criminal presence its reasonably justified subpart for a the vehicle.” This crux of the We understand presents appeal. State’s contention argue the officers observed the bullet the State when console, they probable Honda’s had cause to believe a view on the cause, crime had been committed. Based on existence of search, performed a custodial the officers arrested the defendant pants recovery which led to the of another bullet in the bullets, as the State asserted pocket. recovery Based on justified reconsider, pas- “the officers were to search motion to citing Michigan v. safety,” their own senger compartment insure (1983).3 1201, 103 77 Ed. 2d S. Ct. 3469 Long, 463 U.S. L. *4 sought Long the State to question to 3The citation raises theory hearing justify the search based on change suppression at the If to an arrest. suspicion under rather than search incident reasonable upon act intention, upon the State to that was the State’s it was incumbent ruling its motion precluded court on below. The State the circuit from could rule. appeal it filed instant before the circuit court reconsider when this Should we disagree with the State’s view of the initial police ac tion, subpart, its last the State asserts that “the officers would have inevitably discovered the gun as a search incident possession arrest for of ammunition without a valid FOID card.” support, As the State contends its main brief that “the offi cers would have checked defendant’s background criminal prior to releasing him and would have discovered that defendant awas convicted felon. felon, As convicted defendant could not be in posses 65/4(a)(2) 8(c) (West sion of a 2008). valid FOID (ii), card. See 430 ILCS Possession of ammunition without possession aof valid FOID card is a 14(e) (West 2008).” Class A misdemeanor. 65/2(a)(2), 430 ILCS
Standard of Review
Review of a circuit
court’s
on a motion to suppress evidence
subject
two-part
to a
standard.
defer
We
to the circuit court’s factual
findings
unless
against
are
weight
manifest
of the evidence.
Cosby,
(2008).
v.
231 Ill. 2d
Section of the Code of Criminal Procedure of 1963 114 — mandates that an granting order suppress motion to “state the find *** *** ings of fact upon which the order is based.” 725 ILCS 5/114— 12(e) (West 2008). The suppression us, however, order before does contain express findings of Nonetheless, fact. the record makes clear the circuit legal ruling: court’s the officers did not cause to search the Honda based on their observation of a bullet view on the console of the Honda and recovery of additional bul lets, without inquiring first possessed whether the defendant a FOID card, the absence of which would make possession of the bullets il thus, legal; it was not reasonable for the officers to conclude that their single observation of the plastic bag console, bullet on the triggered actions, their was evidence of activity criminal because bullet is not contraband per se. theory
The State
appеal
not advance a new
on
in an effort to overturn an
theory
adverse decision. “It
upon
is well settled that the
which a case is
litigated in the trial
changed
appeal.”
Capitol
court cannot be
First
Mortgage Corp. Corp.,
Talandis Construction
(1977), citing
N.E.2d 66
Leichtenberg,
In re Estate
7 Ill. 2d
131 N.E.2d
*5
supporting
the
informs us of
sufficiently
conclusion
legal
This
decision,
reach its
may have drawn
the circuit court
inferences
noted,
to be not
“seem
facts,
the circuit court
as
albeit the observable
from
may be drawn
one inference
more than
dispute.”
in
“Where
trier of
one for the
facts,
remains
facts,
question
even uncontested
factual
concerning
determination
The trial court’s
fact. [Citation.]
drawn from
inferences to be
matters,
the reasonable
including
[citations],
this determination
to deference
testimony, is entitled
People
erroneous.”
manifestly
on review unless
will not be disturbed
(1997).
649, 652,
We follow cause to search probable there was by considering first whether peal then, handgun in the of the resulting the vehicle seizure that were to the bullеts properly extended suppression order was Terry stop. to a lawful pursuant discovered Handgun The out, initially granted the defendant’s the circuit court As we set did not exist handgun probable cause suppress motion to because that because the arrest- The circuit court reasoned to search the car. possessed he inquire did not of the defendant whether ing officers card, give alone could not rise presence FOID of the bullets not contraband activity because bullets are probable cause of criminal cause, car unlawful. of the se. per Without when removed Therefore, precipitously the officers acted (and car, him at the front from the secured passengers) defendant car, which handcuffing him, and then searched by of the Honda under recovery handgun in the of the concealed ultimately resulted seat floor mat. front of the plain-view that the officers’ observation The State contends recovery of a car, bag on the console of plastic bullet of the and the seizure pants pocket, in the defendant’s second bullet bullets, console, contained five from the car’s plastic bag might present be gun “that probable cause to believe provided pres “[t]he authority proposition As for the defendant’s vehicle.” pres a reasonable indication ence of a bullet in a vehicle creates Stack, 244 Ill. vehicle,” cites the State ence of a App. 3d 613 N.E.2d “of trial, defendant was convicted Stack, following jury (ammunition) felon.” a convicted weapons possession
unlawful
the circuit
he contended
Stack,
appeal,
244 Ill.
3d at 394. On
App.
seized from
two bullets
denying
suppress
his motion to
court erred
disorderly conduct
initially arrested for
The defendant “was
his car.
and driving with a suspended
vehicle,
license” as he
leaving
exited his
Stack,
the driver’s
open.
door
While the Stack rejected court the circuit court’s rationale that the subject bullets were to during inventory process seizure the of the vehicle, impounded the court ruled that the officer’s of the view bul “plain lets in on justified view” the driver’s seat the seizure of the Stack, bullets and the gun. search of vehicle for a 244 Ill. App. 3d at 397. To support gun, search of the vehicle for a the Stack court “The presence observed: of a bullet on the floorboard of an automobile has been held to a create reasonable indication of the presence of a gun Stack, in 397, the vehicle.” citing 3d at State v. (1988). 521, 523, Wright, however, 104 Nev. 763 R2d gun, No was ever justified recovered. seizure of the bullets was because they “had evidentiary regard some value in to proof of the seriousness Stack, of alleged threats to kill 244 Ill. App. D.S.” 3d at 398. The Stack court did not hold that the “reasonable indication of presence gun” equivalent any of a was the of In probable cause. event, agree we with the circuit court’s view of Stack: at best the connecting dicta, observation presence gun bullets to the of a where gun expand no was recovered. We decline the State’s invitation holding beyond of Stack its facts. heavily
The State also relies v. Wright, State 104 Nev. (1988), Wright, P.2d 49 cited the court in Stack. In after the police lawfully stopped occupied by public a vehicle on a defendants highway suspicion because had reasonable that it in was involved lying on a bullet officer observed night, one robbery previous Court noted Supreme The Nevada of the vehicle. front floorboard of the presence “The in Stack: by the court upon relied observation Wright, ***.” of reasonably presence indicate the bullet could However, the bullet before 523, 763 P.2d at at Nev. already searched, had were and the defendants observed Wright, 104 Nev. felons. defendants were that the determined Wright as the decision it is unclear from Though at 50. 763 P.2d brief, in main asserts Nevada, Illinois, the State as the law ruled court Wright The Nevada lawfully a bullet. possess cannot felons robbery investigate a the defendants’ vehicle that the lawful compart the passenger day justified “search that occurred that P.2d Wright, 104 Nev. safety.” the officers’ ment to insure 1201, 103 Ed. 2d 77 L. Long, 463 U.S. citing Michigan Wright were However, the defendants because S. Ct. 3469 us, except on the case before felons, guidance no Wright provides obtained information here had the extent officers felon, single bullet would possession his defendant was However, officers never cause of a crime. provided probable of the bullets the search and seizure information before acquired such handgun. We write on a clean slate. case, the United States in this appeal After the State took its lawfully be searched determined that vehicle Supreme Court if the arrestee is within only arrest occupant’s “incident to a recent at the time passenger compartment reaching distance evidence of the vehicle contains reasonable to believe search or 332, 351, Ed. Gant, 173 L. 556 U.S. the offense of arrest.” Arizona (2009). Gant, Court Supreme Ct. 129 S. *7 “[ojther exceptions established proposition for the Long cited under additional authorize a vehicle search requirement the warrant Gant, evidentiary concerns demand.” safety or circumstances when “permits 498, Long Ct. at 1721. 346, L. Ed. 2d at 129 S. 556 U.S. at has when he compartment passenger to search a vehicle’s an officer arrestee, individual, or not that an suspicion reasonable immediate control ‘gain might and access the vehicle ‘dangerous’ ” 498, 129 S. 346-47, Ed. 2d at Gant, 173 L. weapons.’ 556 U.S. 1220, 1049, 2d at 77 L. Ed. 1721, Long, 463 U.S. at quoting Ct. at 889, 1, 21, 20 L. Ed. 2d Ohio, U.S. 3481, citing Terry S. Ct. at (1986). 1868, 906, Ct. 88 S. erratically and at driving a car Long, deputies
In
two
observed
ditch. When
eventually
into a shallow
the car
swerved
speed;
excessive
the rear
Long
deputies
met the
investigate,
deputies stopped
something; he
the influence
to be under
Long appeared
of the car.
twice did
respond
to the
requests
initial
deputies.
When he
was asked for the
registration,
car’s
Long turned
began
walking
open
toward the
door of the
Through
door,
car.
the open
the officers
observed a large hunting knife on the driver’s seat floorboard. The of-
ficers immediately performed
protective patdown, revealed no other weapon.
deputy,
One
entering
without
observed something protruding from under the front seat armrest.
The deputy recovered what turned
pouch
out to be a
and inside the
pouch discovered
appeared
what
marijuana.
be
In denying the
defendant’s motion to suppress, the trial court found the pouch was of
might
size that
gun.
conceal a
facts,
Under these
the Supreme Court
deputy’s
ruled that the
recovery
pouch
justified
in the car was
under the Terry principles
deputies
because the
had
reasonable
belief “that
the suspect
dangerous
suspect may
and the
gain im-
mediate
weapons.”
control of
Long,
Here, the State does not contend that the officers’ actions were prompted by their belief that the “dangerous.” defendant was Such a claim would be at odds with circuit court’s decision and the infer- ences it must have It drawn. is also clear that because the defendant (along handcuffed occupants) with other at the front of the Honda, he “gain could not immediate control” of the handgun concealed below the floor mat of the front excep- seat. The Long tion in not apply does here. Gant, Supreme Court analysis reiterated the that should be
undertaken when the reasonableness of a warrantless search is chal-
lenged.
precedent,
“Consistent with our
our analysis begins, as it
every
should in
case addressing the reasonableness of a warrаntless
search, with the basic rule
judicial
that ‘searches conducted
outside
process,
prior
without
approval by judge
magistrate,
or
are per se
unreasonable under the
subject only
Fourth
to a few
Amendment —
”
specifically established and
exceptions.’ Gant,
well delineated
U.S.
173 L. Ed. 2d at
quoting
129 S. Ct. at
Katz
States,
347, 357,
United
389 U.S.
19 L. Ed.
88 S. Ct.
“Among
exceptions
to the
requirement
warrant
is a
search incident to a
exception
[Citation.]
lawful arrest.
derives
safety
from interests in officer
preservation
evidence
that are
typically implicated
Gant,
in arrest situations.”
“We
that a
officer with
knowledge
history may constitutionally
no
aof citizen’s criminal
warrant,
long
seize firearms or ammunition without a
so
as the
be,
hindsight,
plain-
citizen turns out to
a convicted felon. In
court,
upon by
seizing a
view cases relied
the district
the officers
suspect
firearm or ammunition either knew the
was a convicted
felon, [citation],
weapon
or knew the
was linked to the criminal
Thus,
activity being investigated
government
[citation].
must
prove the officersknew when
seized
ammunition
Blom
Blom,
(Emphasis
original.)
242 F.3d at
convicted felon.”
appeals
the federal court of
ruled that the seized am-
Ultimately,
activity
sufficiently
munition from one vehicle “was
linked to criminal
grounds.” Blom,
evidence from
object
plain
view is contraband
probable cause to believe that an
i.e., if the
object,
further search of the
conducting
without
some
object
immediately apparent,
incriminating character of the
Jones, 215 Ill.
plain
justify
doctrine cannot
the seizure.”
view
(2005),
Dickerson,
261, 272,
citing
2d
Minnesota v.
830 N.E.2d
366, 374-75,
334, 345, 113 S. Ct.
2136-37
U.S.
124 L. Ed. 2d
(1993).
only when the evidence is
applies
view] doctrine
“[The
People Humphrey,
seized incident to an arrest or is contraband.”
361 Ill.
The
of ammunition
an offense
when
FOID card. See
possessing
possess
ammunition does not
valid
(1991)
Mourecek,
87, 93,
People
App.
v.
208 Ill.
3d
from which “it was reasonable to infer that defendant did possess card”). a FOID The officers in this case failed to take the simple, obvi ous, asking produce nonintrusive action of the defendant Levens, 230, 233, FOID card. See People 306 Ill. 3d 713 N.E.2d (1999) (“conservation 1275 officer may request production of a valid FOID card after he during investigation discovers a firearm his (520 (West 1996))] violations”). possible [Wildlife Code ILCS 5/1.19
The bullets observed on the console of the car and recovered from during patdown defendant did not confirm to the officers that engaged defendant conduct that constituted a crime. State’s repeated claims the defendant is a convicted felon are to no avail “hindsight” Blom, when constitute no more than information. 242 at 808. Supreme F.3d As United States Court noted: “the Constitution criminality sometimes insulates the few order to Hicks, 321, 329, protect privacy of us all.” Arizona v. 480 U.S. (1987) (officer’s L. Ed. 2d 107 S. Ct. movement of doctrine, equipment, subject plain-view stereo constituted a cause). search, supported by which must be contrary The cases the State relies fail upon support posi- tion. Williamson, (1973), Wis. N.W.2d 613 Terry stop
the officers conducted a of the defendant he while operating having a vehicle. The defendant admitted to not his driver’s any license or other of identification. The defendant was ordered type and, detected hard during patdown, out of his vehicle officer objects pants The officer pocket. asked objects, “turned out to be six .38- remove Williamson, cartridges.” 2d at at 616. caliber Wis. N.W.2d bullets, Upon recovery of the the defendant was asked to consent to gave which the trial court found the defendant “ ” said, Williamson, ‘I 2d at when he don’t care.’ 58 Wis. handgun at 616. The officer recovered a .38-caliber from the N.W.2d Williamson, at 616. We find glove box. 58 Wis. 2d 206 N.W.2d conсlusion that no disagree no reason to with the Williamson court’s *11 However, analysis in Williamson constitutional violation occurred. here the search was not support position does not the State’s where conducted based on consent. 971, (1987), Lizotte,
In
525 A.2d
App.
State v.
Conn.
defendant after
by
the officers made a
of a van driven
observ-
pas-
One of the officers looked into the
ing
change.
an unsafe lane
containing
belt
senger compartment and “saw a leather ammunition
just
right
floor
the van
to the
rear
ammunition on the
A.2d at
The
Lizotte,
App.
11 Conn.
at
operator’s seat.”
The trial court
a towel.
concealed
partially
ammunition belt was
a
had attached
that often
to be the sort
the ammunition belt
found
(“The court
A.2d at 975
Lizotte,
at
App.
11 Conn.
gun holster.
at-
carried in holsters
are
knowledge
pistols
deemed as ‘common
”).
im-
defendant was
The
as the one observed’
tached to belts such
no
down,
revealed
mediately
patted
from the van
removed
police
in the
placed
handcuffed and
The defendant was
weapons.
constituted the arrest
of review concludеd
which the court
The
18,
when a car pulled blocking his exit. The defendant exited his and, time, car after a short ran off. The gave officer chase on foot. The officer was familiar with the defendant and “was aware that defendant Moore, was a convicted felon.” App. During 328 Ill. 3d at 1049. chase, the officer believed he saw the defendant The handgun. toss by assisting defendant was arrested an handgun officer. No along recovered path. Upon chase the officers’ return to the car, they green, observed “a in zippered gun plain case added.) view between the driver’s seat and the (Emphasis console.” Moore, Ill. App. gun 328 3d at 1050. The officers retrieved the case and discovered a revolver and ammunition inside. The Moore court grant reversed the of the defendant’s to suppress motion because “the gun and plain related items are admissible under the view doctrine.” Moore, 328 App. chasing 3d at 1052. Based on the officer’s knowledge felon, that the defendant was a convicted his observation gun in certainly case view the defendant’s vehicle “was may Moore, evidence that a crime been committed.” 328 Ill. us, 3d at 1054. As the repeatedly State informs a convicted felon lawfully possess in Illinois. Moore similar to Richards because each prohibited by pos involved convicted felon law from ammunition. sessing weapon either a or
The оne case cited
the State similar to the instant case is State
Garcia,
191,
v. Garcia
169 Ariz.
821 P.2d
192
In Gar
Garcia,
Appeals
cia
the Arizona Court of
reversed
trial
court’s
grant of
suppress
during
the defendants’ motion to
evidence seized
an
search,
automobile
prompted
part
noticing
which was
an officer
lying
Garcia,
531,
“bullets
on the front seat.”
Ariz. at
821
Garcia
bullets,
P.2d at 192. The court
ruled:
coupled
appel
first
“The
with
conduct,
suspicious
enough
give
lees’
were
a reasonable
suspicion
activity
criminal
for
an
though
enough
probable cause for
arrest.”
Garcia,
Garcia
169 Ariz. at
P.2d at
it found no
Though
defendants,
probable cause for an arrest of the
the court nonetheless
safety
on officer
sanctioned
search of
defendants’ vehicle based
Terry.
though appellees
police
“[E]ven
under
were under
control dur
ing
search,
safety problem
there
an
might
well have been
officer
released, they
im
appellees
absent the search. When the
were
would
therein,
mediately
any weapons
have access to the vehicle and
located
[citаtion],
safety.”
could have threatened the officers’
with which
Garcia,
Ariz. at
Finally, reject presented we out of hand the additional of the presuppose the State that the lawfulness seizure under and the search of the Honda an weapon the lawfulness of warrant unspecified exception automobile fourth amendment under inevitable requirement recovery handgun and the Estrada, Ill. discovery App. doctrine. See 394 3d (2009) (arguments appeal 914 raised for the first time on N.E.2d 679 forfeited). discovery doctrine are the State raised inevitable While reconsider, prevented timing appeal in its motion to of the State’s argu argument, which means the the circuit court from on its any event, doctrine appeal. is raised the first ment for time on in the circuit inapplicable is here where no evidence introduced was vehicle, or his court that the defendant a convicted felon was subject being impounded property, was on was private which (written Stack, 3d App. contents inventoried. See at 397 procedures for must introduced into evidence impounding vehicles be vehicles”), inventory citing People uphold “to an search of those Williamson, 241 Ill. 608 N.E.2d summarize, To when no information developed was crime, was about to commit had or committed a the officers precipitously acted in searching the defendant’s car after all of its oc cupants were secured at the handcuffs front of the car. The officers escalated a Terry lawful investigative stop into a full-blown arrest the defendant then engaged in the search of the vehicle as incident determined, arrest. As we the search vehicle required probable Terry cause. That a stop lawful occurred did not authorize the officers engage cоnduct required probable cause, (an DeLuna, the officers developed. never 334 Ill. App. 3d officer object seize an during Terry discovered if the “officer has contraband”). object cause to believe that the stop did justify the search of the defendant or seizure of the (“the Close, bullets that were not See contraband. Ill. 2d at conduct that constitutes the assessing crime relevant” in justified). action is The officers could have confirmed their suspicions by inquiring whether the defendant convicted felon possessed or FOID valid card. Both could not be true. See Florida v. Royer, 491, 500, 460 U.S. Ed. 2d L. 103 S. Ct. (1983) (“investigative 1325-26 employed methods be should the least intrusive reasonably means to verify dispel available or the officer’s time”). suspicions in period a short
CONCLUSION *14 We affirm the circuit court that the of search the defendant’s vehicle was not a lawful search in the probable absence of cause. the engaged Terry While officers in a stop, recovery lawful the of the provide bullets did not a evidence of crime in the absence of evidence
that did a possess valid FOID card or awas convicted The improperly felon. officers escalated the investigative stop into a arrest engaged full-blown of the defendant and then search the vehicle as incident The circuit to arrest. court did err in granting motion suppress defendant’s to bullets and gun unlawfully police. seized
Affirmed.
HALL, J., concurs. LAMPKIN, dissenting:
JUSTICE I dissent. I reverse respectfully rulings would the circuit court’s suppressed and five bullets the revolver seized from I defendant’s car and the one seized from pocket. bullet defendant’s 311 in observing the bullet officers, plain-view arresting upon believe the protec- conduct to defendant and car, stop suspicion had reasonable in the passenger and weapons person on defendant’s for tive searches the front- Then, found under his the revolver compartment of car. arrest defendant. gave cause to police probable mat passenger floor case majority’s analysis of this as a I with the agree do not controlling. that Gant is arrest and conclusion incident to a lawful detention, investigative Rather, I a brief believe that this case involved police held that officers governed by Long, is stop, or and no arrest has of a car when may passenger compartment search the dangerous reasonably suspect if believe been made 1049, 463 at weapons. Long, U.S. may gain immediate control and 1220, at L. Ed. at 103 S. Ct. 77 2d turns on suppress or evidence quash
Where a motion arrest cause, apply suspicion or we legal question of reasonable (2001). Sorenson, 425, 2d When Ill. 431 People novo v. de review. behavior,” an he make “possibly an officer observes criminal probable cause and make “reasonable investigatory stop without inquiries” dispel suspicions. Terry, confirm his U.S. or to be L. S. 1884. For Ed. 2d 88 Ct. justifiable Terry, present specific, the officer must articulable under his or safety to fear for person facts which would cause a reasonable safety 27, 20 2d at 88 S. Terry, others. 392 U.S. at L. Ed. (1989). an 1883; Galvin, v. 2d Because People Ct. at Ill. his the reasonableness of quick judgments, officer often must make judged prevent his responsibility conduct must be basis of (1985). Stout, crime and 106 Ill. 2d 86-87 People catch criminals. objective examining total terms Reasonableness measured Moss, ity circumstances. hearing testimony suppression
Officer Alcott’s at the established First, police officers following sequence approached of events. he was evening question investigate why defendant’s car on blocking observed, lot parking police entrance. The officers view, plastic bag one in a on the center console bullet and out passengers car. officers ordered defendant his two car. them, them to the front of the brought handcuffed plastic bag Officer removed the from the console and saw Alcott performed then actually contained five bullets. Officer Alcott one bullet in his protective patdown search on defendant found *15 Johnson, pocket. pas- had searched two pants Detective who car and found revolver sengers, then searched defendant’s pas- and mat. Defendant the two front-passenger underneath floor sengers transported police department. were to the
According record, to the Officer Alcott directly was never questioned about when defendant placed was under arrest. Although the majority seems to attribute certain statements to Officer Alcott about defendant being and his “in passengers custody,” the record indicates that those actually spoken words were by defense counsel during questioning Moreover, his of Officer Alcott. counsel never clari- fied “in custody” meant that defendant placed was under ar- merely rest or during detained investigatory stop. Consequently, I do not vague conclude from the statements in the record about being custody” “in that the police officers arrested him right ordering after him upon observing out his car plain- based view bullet on the console.
I agree
majority
with the
that
approach
the officers’ initial
car
question
defendant’s
and
blocking
about
the entrance did not
implicate
however,
the fourth
I disagree,
amendment.
with the
majority’s analysis
remainder of the
I
because
believe the situation
progressed
a
into
lawful
plain-
when
officers
saw
view bullet in
though
plain-view
defendant’s car. Even
bullet was
per se,
totality
contraband
gave
of the
here
circumstances
reasonable,
officers a
suspicion
justify stop.
articulable
a
Specifically,
evening
question, i.e.,
conduct on the
defendant’s
sitting in
car
his
with another
a
blocking
parking lot
entrance while his car
had
engine
running,
drawn the attention of
prompted
officers and
them to
him
approach
inquiries.
and make
This
street,
meant that the officers had to
their
off
drive
vehicle
lot,
enter
parking
which had
no pedestrian
little or
or vehicular
traffic, and leave the
car
safety
question
relative
of their
defendant.
Once the
standing
two officers were
now
men,
contained three
the officers were in
position.
a vulnerable
Contrary
defendant’s characterization
of the situation as
“benign,”
infer
undisputed
reasonable to
from the
facts that the
safety
officers
their
was in danger
presence
believed
because the
plain-view
suspicion
gun might
bullet raised their reasonable
Stack,
passenger compartment
also be in the
of defendant’s car.
citing Wright,
3d at
P.2d at 50.
Nev.
See
(because
Garcia,
531-32,
also Garcia
169 Ariz.
Rational
danger
were
passengers
his
defendant and
belief that
reasonable
cers’
needed
The officers
weapons.
immediate control of
gain
ous and could
from
themselves
quo
protect
and
maintain the status
quickly
to act
gun was
readily accessible
that a
possibility
danger posed
the oc
their backs on
turned
could not have
car. The officers
for the offi
unreasonable
have been
and it would
cupants of the
next.
might
car
do
of the
occupants
what the
to wait and see
cers
to remain
for the officers
Furthermore,
have been absurd
it would
pas
and his
рosition
questioning
while
such a vulnerable
and al
cardholders
as valid FOID
possible
their
status
sengers about
any
in order to retrieve
in their car
rummage
them to
about
lowing
situation,
there
where
precisely
“It is in
such
such documentation.
for immediate
that there is a need
to believe
grounds
are reasonable
safeguards
and
action,
standards
that the constitutional
investigatory
Galvin,
at 172.
127 Ill. 2d
play.”
come into
Terry
v. Ohio
“
are
in vehicles
involving suspects
[I]nvestigative detentions
Long, 463 U.S.
danger
officers.”
fraught with
especially
has
an officer
S. Ct. at 3480. When
77 L. Ed. 2d at
believes,
reasonably
based
an
and
properly stopped
individual
inferences
facts,
with rational
together
and articulable
taken
specific
may gain immedi
facts,
dangerous suspect
that the
from those
may
passenger
search the
weapon,
then the officer
ate control of
vehicle,
weapon
in which a
limited to those areas
compartment of
1049, L. Ed. 2d at
U.S. at
placed
Long,
be
or hidden.
Because car out of their passengers defendant and his the officеrs could order violating protections stop without completion of pending Gonzalez, Sorenson, 433; People v. 196 Ill. 2d at fourth amendment. (1998). Furthermore, handcuffing defendant 184 Ill. 2d 413-14 did not convert this during their detention passengers and the two the officers’ necessary it was for into an arrest because that a suspicion their reasonable they investigated protection while pas or in the occupants the car might be concealed either on Starks, of the car. senger compartment limited to Here, officers’ search was scope them, weapons endangering discovery potential necessary for the where performed protective patdown searches defendant and the passengers and then searched the passenger compartment of the car. After discovering the concealed revolver under the front-passenger mat, floor officers had cause to arrest defendant for violating law carrying an immediately accessible firearm in his car. majority argues that after defendant and the passengers were
outside the car
handcuffed,
thеy were
dangerous
and could
gained
immediate control of the revolver under the front-
floor mat.
argument, however,
This same
was refuted in
Long, where the Supreme Court noted that “if the suspect
is not
placed
arrest,
under
he will be permitted to
automobile,
reenter his
and he will then have
any
access to
weapons inside.” Long,
Furthermore,
majority’s
reliance on Gant is misplaced.
In
Gant,
Supreme
upheld
Court
the suppression of cocaine
found
the search of the defendant’s car while he was handcuffed and locked
in the
back of a
car after his
driving
arrest for
with a suspended
Gant,
335,
license.
THE PEOPLE THE STATE OF OF *18 WARE, Defendant-Appellant. MAURICE (6th Division) District No. 1 — 09—0338 First February Opinion filed