People v. GonzalezPeople v. Gonzalez
Defendant, John A. Gonzalez, was charged with possession of a controlled substance (
Defendant and Officer John McCarthy testified at the hearing on defendant‘s motion. Defendant gave the following testimony. On December 9, 1998, he was riding in the front passenger seat of a car driven by his friend. The car was pulled over for having no front license plate. Officer McCarthy and another officer asked the driver for identification and proof of insurance. The driver had no proof of insurance, so the officers ordered him out of the car. As defendant sat in the car, Officer McCarthy asked defendant for identification. Defendant complied and gave Officer McCarthy a traffic ticket, and the officer returned to his squad car. Officer McCarthy wore street clothes, his gun was not drawn, and his manner was not belligerent or abusive.
Defendant testified that about 5 to 10 minutes later Officer McCarthy returned and asked defendant to step out of the car, and defendant complied. After defendant stepped out of the car, Officer McCarthy asked defendant to put out the cigarette
Officer McCarthy testified as follows. On December 9, 1998, he and Officer Lee were on routine patrol and stopped a car for having no front license plate. As Officer Lee spoke to the driver, Officer McCarthy approached defendant and requested identification. Defendant was simply sitting in the car. Officer McCarthy knew of no outstanding warrants to arrest or search defendant and never saw a weapon on defendant nor did he see defendant committing any crime. After defendant gave Officer McCarthy a traffic ticket, the officer returned to his squad car and ran a computer check that revealed that defendant was a gang member, was on parole, and had a lengthy criminal history.
Officer McCarthy testified that he then returned to the stopped car. Because of the information obtained during the computer check, Officer McCarthy was concerned that defendant might have a weapon. Officer McCarthy asked defendant to step outside. Officer McCarthy testified at this point that defendant was not free to leave. Defendant complied with Officer McCarthy‘s directive. Officer McCarthy asked defendant if he had anything he should not have. Defendant replied “no” and opened the front of his jacket as if to show that he was not hiding anything. Officer McCarthy stated that he asked defendant if he could search defendant and defendant replied “yes.” As Officer McCarthy patted down defendant, he felt a bulge in defendant‘s pocket and asked what it was. Defendant replied that it was a traffic ticket, reached into his pocket, and pulled the folded ticket out. As he opened the ticket, cocaine fell out. Officer McCarthy arrested defendant. Officer McCarthy estimated that perhaps five or six minutes passed between the traffic stop and his search of defendant.
The trial court noted that there was some conflicting testimony surrounding the circumstances of the search but that Officer McCarthy was credible. The court determined that the initial traffic stop was valid. However, Officer McCarthy did not have a lawful basis to ask defendant for identification because Officer McCarthy did not suspect defendant of any criminal activity. Therefore, the search was tainted. Relying on our opinion in People v. Branch, 295 Ill.App.3d 110, 229 Ill.Dec. 625, 692 N.E.2d 398 (1998), the trial court granted defendant‘s motion to suppress. Citing People v. Smith, 266 Ill.App.3d 362, 203 Ill.Dec. 727, 640 N.E.2d 647 (1994), the State moved to reconsider, asserting that Officer McCarthy‘s request for identification did not violate the fourth amendment.
On appeal, the State argues that Officer McCarthy‘s request for identification from defendant, who was riding in a car that was stopped for a traffic violation, did not violate defendant‘s fourth amendment rights. Therefore, the State argues that the trial court erred by granting defendant‘s motion to suppress evidence and quash the arrest. We disagree with the State.
In reviewing a ruling on a motion to suppress and motion to quash arrest, we must accept the trial court‘s factual findings unless they are against the manifest weight of the evidence. See People v. Lockett, 311 Ill.App.3d 661, 666, 244 Ill. Dec. 232, 725 N.E.2d 27 (2000). If we accept the trial court‘s findings, we review de novo whether suppression is warranted under these facts. See People v. Gonzalez, 184 Ill.2d 402, 411-12, 235 Ill.Dec. 26, 704 N.E.2d 375 (1998). Here, the trial court found, in part, that Officer McCarthy was credible and that he had no reasonable suspicion of criminal activity at any time during the encounter with defendant. After reviewing the record, we do not believe these findings are against the manifest weight of the evidence. Accordingly, we will review the trial court‘s decision to grant defendant‘s motion to suppress de novo. See Gonzalez, 184 Ill.2d at 412, 235 Ill.Dec. 26, 704 N.E.2d 375.
The fourth amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
For fourth amendment purposes, there are three tiers of lawful police-citizen encounters: (1) the arrest of a citizen supported by probable cause; (2) a Terry stop or brief seizure of a person, which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) an encounter commonly known as the community caretaking or public safety function, which involves no coercion or detention and thus does not involve a “seizure.” People v. Leifker, 307 Ill.App.3d 25, 28, 240 Ill.Dec. 321, 716 N.E.2d 1268 (1999).
Generally, a stop for a minor traffic violation is considered a Terry stop (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). People v. Smith, 315 Ill.App.3d 772, 775, 248 Ill.Dec. 748, 734 N.E.2d 1039 (2000). A Terry stop is a seizure that involves only a brief detention, stopping short of a traditional arrest. People v. Brownlee, 186 Ill.2d 501, 518, 239 Ill.Dec. 25, 713 N.E.2d 556 (1999). To comport with the requirements of the fourth amendment of our federal constitution and article I, section 6, of our Illinois Constitution, Terry stops, or short investigatory stops, are permissible only if there is a reasonable suspicion “that the person has committed, or is about to commit, a crime.” Brownlee, 186 Ill.2d at 518, 239 Ill.Dec. 25, 713 N.E.2d 556. When considering whether a seizure was reasonable, a
When applying these standards, Illinois courts have held that, in most cases, when a police officer stops a driver pursuant to a lawful traffic stop, the officer may request a driver‘s license from the driver and run a quick warrant check. People v. Branch, 295 Ill.App.3d 110, 113, 229 Ill.Dec. 625, 692 N.E.2d 398 (1998). However, generally, a police officer may not ask for and run a warrant check on the identification of a passenger, without reasonably suspecting the passenger of criminal activity. Branch, 295 Ill.App.3d at 114-15, 229 Ill.Dec. 625, 692 N.E.2d 398; People v. Jennings, 185 Ill.App.3d 164, 169, 133 Ill.Dec. 318, 541 N.E.2d 155 (1989). Such a request can render the otherwise lawful detention of the driver an unlawful seizure of the passenger. See Branch, 295 Ill.App.3d at 114-15, 229 Ill. Dec. 625, 692 N.E.2d 398. Further, subsequent “consent” to search may be tainted by an unlawful detention, and the evidence obtained from the search may be suppressed. Brownlee, 186 Ill.2d at 521, 239 Ill.Dec. 25, 713 N.E.2d 556.
For example, in Branch, an officer properly stopped a car the defendant was driving. Although the officer who effectuated that stop did not suspect the two passengers of criminal activity, he asked both the defendant and the two passengers, one of whom was Acevedo, for identification. After a computer check disclosed an outstanding warrant for Acevedo‘s arrest, the officer arrested Acevedo and searched the car, finding evidence that led to the defendant‘s arrest. Branch, 295 Ill.App.3d at 111, 229 Ill.Dec. 625, 692 N.E.2d 398. At trial, the trial court granted the defendant/driver‘s motion and suppressed the evidence discovered during the searches. Branch, 295 Ill.App.3d at 110-11, 229 Ill. Dec. 625, 692 N.E.2d 398. The State appealed. This court affirmed the trial court, holding that the initial stop of the vehicle and request for identification and computer check on the defendant/driver were lawful. Branch, 295 Ill.App.3d at 113, 114, 229 Ill.Dec. 625, 692 N.E.2d 398. However, the officer lacked the authority to ask Acevedo, a passenger, for identification and to run a computer check, because the officer did not reasonably suspect the passenger of criminal activity. Branch, 295 Ill.App.3d at 114, 229 Ill.Dec. 625, 692 N.E.2d 398. Therefore, the evidence obtained as a result of the unlawful detention and improper search was properly suppressed. Branch, 295 Ill.App.3d at 115, 229 Ill.Dec. 625, 692 N.E.2d 398.
In Brownlee, our supreme court upheld the suppression of evidence obtained after a passenger was detained without a reasonable suspicion of criminal activity and later searched. Brownlee, 186 Ill.2d 501, 239 Ill.Dec. 25, 713 N.E.2d 556. After observing traffic violations, two officers stopped a car containing four occupants, two males in the front and two females, including the defendant, in the back. Brownlee, 186 Ill.2d at 506, 239 Ill.Dec. 25, 713 N.E.2d 556. The officers obtained the identities of all four occupants and checked for outstanding warrants. None were found, and the officers decided not to issue any citations. Brownlee, 186 Ill.2d at 506, 239 Ill.Dec. 25, 713 N.E.2d 556. An officer asked the driver if he could search the car. The driver asked if he had a choice, and the officer told the driver that he did. The
Recently, in People v. Robinson, 322 Ill.App.3d 169, 255 Ill.Dec. 35, 748 N.E.2d 739 (2001), this court affirmed a trial court‘s suppression of evidence obtained during a search of a passenger of a car that was lawfully stopped. The officer stopped the vehicle and asked both the driver and a passenger, Ignacio Rosario, for identification. The officer knew the other passenger, the defendant. The officer ran computer checks on all three individuals which showed no warrants. The check took about 10 minutes. After detecting an odor of alcohol, he had the driver perform a field sobriety test, which the driver passed. The officer issued a warning to the driver and then asked if he could search the car. The owner of the car, Rosario, told the officer to “go ahead.” The officer then searched Rosario and then asked the defendant if he could be searched. The defendant said “go ahead,” and the officer discovered a baggie containing a white powdery substance. The officer then arrested the defendant for possession of drugs. The trial court suppressed the evidence, and the State appealed. Affirming the trial court‘s suppression, this court held that the defendant was unlawfully detained and that any consent given was tainted by the unlawful detention. Robinson, 322 Ill.App.3d at 176, 255 Ill.Dec. 35, 748 N.E.2d 739. Further, the search of the defendant was unlawful because the officer did not believe his safety was in danger. Robinson, 322 Ill.App.3d at 175, 255 Ill.Dec. 35, 748 N.E.2d 739.
These cases support the trial court‘s decision here. The driver in this case, like the driver in Branch, was lawfully stopped and asked for identification. The officer then asked defendant for identification even though the officer admitted that he had no reasonable suspicion of criminal activity on the part of defendant. Therefore, like the officer in Branch, the officer in this case lacked authority to ask defendant for identification. In addition, the officer in this case had no authority to search defendant. The officer explained that he searched defendant because he was afraid that defendant might have a weapon. However, the officer based his concern only on defendant‘s criminal history obtained from the unlawful computer check. The officer testified that at no time did he have a reasonable suspicion of criminal activity or see a weapon, and defendant did nothing unusual. Therefore, absent the information obtained from the unlawful computer check, Officer McCarthy had no lawful basis to search defendant. In addition, like the “consent” given
Contrary to the State‘s assertion, the encounter at issue here was not merely one involving the community caretaking function of the police. It is well settled that such an encounter does not implicate the fourth amendment and does not require any legal justification. People v. Smith, 266 Ill.App.3d 362, 364, 203 Ill. Dec. 727, 640 N.E.2d 647 (1994). However, the State fails to recognize that the community caretaking encounter typically involves the safety of persons or property. See e.g., People v. Murray, 137 Ill.2d 382, 148 Ill.Dec. 7, 560 N.E.2d 309 (1990) (two officers approached the defendant and asked for identification after the officer observed the defendant slumped over the wheel of a parked vehicle); People v. Carlson, 307 Ill.App.3d 77, 79, 240 Ill.Dec. 302, 716 N.E.2d 1249 (1999) (an officer asked the defendant to step out of his car after the officer found the defendant lying in his car on the side of the road); People v. Ciesler, 304 Ill.App.3d 465, 467, 472-73, 238 Ill.Dec. 168, 710 N.E.2d 1270 (1999) (an officer approached the defendant to assist him because he was slumped over the steering wheel of a truck that was parked on the shoulder of a ramp with its engine running); People v. Crocker, 267 Ill.App.3d 343, 204 Ill.Dec. 618, 641 N.E.2d 1237 (1994) (an officer stopped the defendant to ask if a nearby abandoned car belonged to the defendant and to see if the defendant needed a ride); People v. Quigley, 226 Ill.App.3d 598, 168 Ill.Dec. 19, 589 N.E.2d 133 (1992) (officers stopped the defendant after they observed him get out of his car at an intersection and yell at the driver of another car).
There is nothing in the record in this case that indicates that Officer McCarthy asked defendant for his identification because he was concerned for the safety of a person or property. Rather, Officer McCarthy stated that defendant was doing nothing unusual and Officer McCarthy did not suspect any criminal activity.
Further, when a reasonable person would not feel free to decline the request or leave the scene, the officer is no longer acting in his community caretaking function. People v. Leifker, 307 Ill.App.3d 25, 28, 240 Ill.Dec. 321, 716 N.E.2d 1268 (1999). Implicit in the trial court‘s finding is that defendant did not feel free to decline Officer McCarthy‘s “request” for identification and did not feel free to leave. We recognize that the trial court found Officer McCarthy‘s testimony to be credible; however, the court‘s implicit finding is not contradicted by Officer McCarthy‘s version of events. We also note that, despite the fact that Officer McCarthy did not suspect criminal conduct or fear for his safety at the time, defendant was not free to walk away from the scene. Our supreme court held in Gonzalez, 184 Ill.2d 402, 235 Ill.Dec. 26, 704 N.E.2d 375, that an officer may lawfully order a passenger to remain at the scene of a traffic stop, absent a suspicion of criminal activity or a belief that he is at risk of harm. Gonzalez, 184 Ill.2d at 418, 235 Ill.Dec. 26, 704 N.E.2d 375. Thus, we cannot say that the trial court‘s implicit finding that a reasonable person would not have felt free to refuse to comply or free to leave is against the manifest weight of the evidence. Therefore, we determine that the trial court properly ruled that the encounter constituted a seizure requiring legal justification. Accordingly, the trial court properly granted defendant‘s motion to quash his arrest and suppress evidence.
For these reasons, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
GEIGER J., concurs.
Justice O‘MALLEY, dissenting:
None of the cases cited by the majority supports its rule that “generally, a police officer may not ask for and run a warrant check on the identification of a passenger [of a lawfully stopped automobile], without reasonably suspecting the passenger of criminal activity” (slip op. at 6). In my mind, People v. Branch, 295 Ill.App.3d 110, 229 Ill.Dec. 625, 692 N.E.2d 398 (1998), the majority‘s principal authority for its decision, was an unwarranted departure from a long line of this court‘s cases. In Branch, the court held that, because the officer did not have reason to suspect the passenger of criminal activity, he “did not have the authority to request an ID from the * * * passenger.” (Emphasis added.) Branch, 295 Ill.App.3d at 114, 229 Ill.Dec. 625, 692 N.E.2d 398. The foundations for that holding are suspect. The court explained that the State‘s argument that the officer had authority to request the passenger‘s identification was “directly contrary” to People v. Jennings, 185 Ill.App.3d 164, 133 Ill.Dec. 318, 541 N.E.2d 155 (1989), where the court held that, because the officer who stopped the car in which the defendant was a passenger did not have reason to suspect the defendant of criminal activity, the officer therefore had no authority to demand the defendant‘s identification. Branch, 295 Ill.App.3d at 114, 229
That Branch blurred the distinction between demand and request is not surprising because Jennings did, too. The facts as recited in Jennings do not indicate whether the officer requested or demanded the defendant‘s identification. Responding to the State‘s argument that the officer “had a lawful right to ask for and run a warrant check on defendant‘s driver‘s license,” the Jennings court held that the officer “did not possess the authority to demand the production of defendant‘s driver‘s license absent proof that defendant was driving the vehicle.” (Emphasis added.) Jennings, 185 Ill.App.3d at 169, 133 Ill.Dec. 318, 541 N.E.2d 155, citing People v. Francis, 4 Ill.App.3d 65, 280 N.E.2d 49 (1971). Two lines later in the opinion, the court asserted that the officer “did not have the authority to request defendant‘s license.” (Emphasis added.) Jennings, 185 Ill.App.3d at 169, 133 Ill. Dec. 318, 541 N.E.2d 155. I do not think the attentive reader can tell whether Jennings’s use of “demand” and “request” interchangeably was due to an unstated assumption that no legal difference exists or to mere carelessness. Faced with this imprecision, the Branch court should have been more circumspect in citing Jennings as authority.
Francis, the sole authority cited by Jennings, was inapposite; the issue there was whether an individual had to be operating a motor vehicle before an officer could rightfully require him to produce a driver‘s license under section 6-112 of the Driver Licensing Law (Ill.Rev.Stat.1969, ch. 95 ½ par. 6-112 (now
Branch simply ignored People v. Smith, 266 Ill.App.3d 362, 203 Ill.Dec. 727, 640 N.E.2d 647 (1994), and its distinction between a request for identification and a demand for identification. The majority follows Branch in failing to address the validity of this distinction. Instead, the majority dismisses Smith as factually distinguishable from the case upon which Smith chiefly relies, Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991). The majority notes that the defendant in Bostick, unlike the defendant in Smith and the present case, was told that he had the right of refusing to comply with the officers’ requests. Although the Court in Bostick mentioned that this advisement was given (see Bostick, 501 U.S. at 432, 111 S.Ct. at 2385, 115 L.Ed.2d at 397), nowhere did the Court explain the significance of that advisement, much less state that such an advisement is necessary for a request to remain noncoercive. The Court did observe, however, that “no seizure occurs when police ask questions of an individual [or] ask to examine the individual‘s identification * * *—so long as the officers do not convey a message that compliance with their requests is required.” Bostick, 501 U.S. at 437, 111 S.Ct. at 2388, 115 L.Ed.2d at 400.
Before Branch, this court agreed with this statement of the law. There is a reason why Branch could cite only a Fourth District case (Jennings) to support its holding, for this court had long been of the mind that a police officer‘s request of a private citizen does not constitute a seizure per se. See, e.g., People v. Cole, 256 Ill.App.3d 590, 593-95, 194 Ill. Dec. 545, 627 N.E.2d 1187 (1994) (no seizure when “police merely approach an individual
The remaining cases cited by the majority, People v. Brownlee, 186 Ill.2d 501, 239 Ill.Dec. 25, 713 N.E.2d 556 (1999), and People v. Robinson, 322 Ill.App.3d 169, 255 Ill.Dec. 35, 748 N.E.2d 739 (2001), lend no support to the majority‘s holding. Neither case addressed the lawfulness of a police request for identification from a passenger of a car stopped for a traffic violation; rather, both address the lawfulness of events occurring after such requests occurred. In both Brownlee and Robinson, the issue was whether the police, having stopped a car for suspected traffic violations, had a basis for continuing to detain the occupants after the police ran warrant checks on their identities and informed them that they would not be cited for traffic violations. Brownlee, 186 Ill.2d at 517, 239 Ill.Dec. 25, 713 N.E.2d 556; Robinson, 322 Ill.App.3d at 172, 255 Ill.Dec. 35, 748 N.E.2d 739. In both cases, the court held that this continued detention exceeded the scope of the traffic stop and was not justified independently of the grounds for the stop. Brownlee, 186 Ill.2d at 520-21, 239 Ill.Dec. 25, 713 N.E.2d 556; Robinson, 322 Ill.App.3d at 175, 255 Ill. Dec. 35, 748 N.E.2d 739. In neither case was the lawfulness of the officer‘s request for the occupants’ identification and the subsequent warrant check at issue. Defendant does not claim that the traffic stop was illicitly prolonged after the officer obtained and ran his identification, but such a claim is the only claim that Brownlee and Robinson would support.