*1 ILLINOIS, Plaintiff-Appellee, v. ROY G. OF THE OF THE PEOPLE STATE MOORMAN,Defendant-Appellant.
Second District 2 — 04—1212 No.
Opinion filed November 2006. Lilien, Office, Appellate Elgin, Thomas A. of State Defender’s Mundelein, Ackley, Ackley, appel- O. Law Robert Robert Offices of O. lant. (Lisa Birkett, Attorney,
Joseph Hoffman, E. State’s of Wheaton A. As- *2 Attorney, Campbell, sistant State’s and Martin E Moltz and Diane L. both of Office, counsel), Appellate People. Attorneys State’s Prosecutor’s of for the opinion JUSTICE GROMETER delivered the of the PRESIDING court: Moorman,
Defendant, appeals judgment the of the circuit Roy G. of Page County finding guilty possession of Du him of a court (720 570/402(c) (West 2002)). He controlled ILCS raises two substance First, argues of that the trial court erred allegations error. defendant physical denying suppress motion to evidence and statement his beyond proven guilty made. He that he was not he also contends follow, the that we affirm. reasonable doubt. For reasons further, appellate proceeding Before we remind defendant’s supreme the court’s rules necessity complying of with counsel 341(h)(7) Rule appellate form and content of briefs. governing the portions citation the requires argument section include to 341(h)(7). Additionally, 2d R. upon. record Ill. Rule relied “[cjitations provided in that shall be made as Rule 6.” 341(g) provides “[cjitations 341(g). Ill. 2d that of cases must be R. Rule 6 states title, begins, to where the case to the page the volume pertinent matter at least one of the pages upon appears which the comply that the failure to reporters cited.” 145 2d R. 6. We caution sanctions, including deeming argu an these can result in with rules Weiss, Chicago Title & Trust Co. v. ment waived. See (1992) Supreme Court Rule (noting that violation 927-28 incorporates Supreme Court Rule can result waiver 341(g), which argument). anof BACKGROUND
I. stop following which appeal out of a traffic present arises Page Du possessing quantity admitted to cocaine. defendant assisting undercover O’Brochta was County Deputy Sheriff Chris operation in an where department detectives from the Addison of the Bradford Court conducted surveillance undercover officers high- as a complex known apartment Addison. The Apartments in officers The undercover crime, high-gang-activity area. high-drug, and officers, O’Brochta, and inform them of supporting would radio to like suspected drug met dealers. The occupants vehicles whose for traffic supporting would then follow the and look officers vehicle could be stopped. violations so that vehicle 14, 2003, testify did at trial April Raysby, On Detective or who to radioed during hearing suppress, on defendant’s motion just the apart- O’Brochta and informed him that a silver Kia had left it, ment The Kia followed complex. was defendant’s vehicle. O’Brochta and, upon noting license-plate sticker on the vehicle was expired, approached a traffic vehicle and initiated O’Brochta asked produce defendant his driver’s license. O’Brochta and that, time, defendant both testified at that defendant informed They disagree O’Brochta his to whether license was revoked. defendant, O’Brochta hewhy stopped. According told defendant him any drugs O’Brochta asked whether there in the vehicle. O’Brochta told to exit him then defendant the vehicle and directed stand at its rear. Gilhooley, supporting operation,
Detective who also ar- rived vehicle, at this time. He stood at the with defendant rear of approached passenger. Gilhooley O’Brochta asked defendant any drugs there were in the car. passenger O’Brochta told the that he just knew she had left the Apartments Bradford Court *3 suspected mumbled, met drug with dealers. did passenger The not eye contact, make Upon and responding. being avoided asked whether she and had purchased drugs, defendant she nodded affirmatively. give O’Brochta asked her to him and drugs, produced bag the she of white “rock powder” bag from her mouth. O’Brochta held the up so that Gilhooley could see spoke passenger it. O’Brochta with the about According 30 seconds. Gilhooley, speaking to who was with defendant questioned passenger, while O’Brochta the admit- defendant drugs ted belonged that the him displayed bag. to when O’Brochta the Defendant stated given girlfriend also that he had the to his to they hide her mouth being pulled while over. Defendant’s largely speaking conviction rests on this After with the admission. passenger, squad O’Brochta went his to run to car defendant’s driver’s license. This confirmed defendant’s statement that his license had revoked, been placed and defendant was under arrest.
Defendant’s version of that of events differs somewhat from the police two officers. For he that handcuffed example, contends he was placed indicate, squad car much than the earlier officers immediately questioned that he that drugs, was almost about the However, longer encounter lasted much than the the officers indicate. court, trial, following suppression trial hearing both the and the found 190 testimony credibility.
defendant’s to lack Given the inconsistencies out, testimony, the trial court pointed defendant’s which cannot say finding erroneous. will discuss additional facts that We the testimony necessary as to resolve issues defendant raises.
II. ANALYSIS First, appeal. argues he the Defendant raises two issues on have the recovered from the suppressed trial court should narcotics proper the the passenger, police scope Terry because exceeded of (see (1968)) Ohio, Ed. 2d 1868 Terry 392 20 L. 88 S. Ct. v. U.S. argument makes a the circumstances. He also related under Gilhooley suppressed he made to should have been as the statement alleged illegality and also because the statement was fruit of Second, proven guilty asserts that coerced. defendant he was beyond disagree a reasonable doubt. We with both contentions. Suppress to
A. Motion reviewing suppress, accept of a motion we will the denial long they contrary so are not findings factual of trial court Lewis, 363 Ill. weight People v. manifest evidence. (2006). The of conduct 523 ultimate issue (U.S. Const., with the strictures of the fourth amendment comported IV) Lewis, is, however, subject to de novo amend. review. to the voluntariness applies
3d at 523. The same two-tiered standard (2000). always, As G.O., ques of In re Ill. 2d 50 a confession. witnesses, regarding credibility resolution of tions conflicts, of weight determination the amount evidentiary and the primarily responsibility is entitled are which evidence fact, typically judg not substitute its trier of and a court of review will (1999). Brooks, Ill. 2d People ment such matters. on mind, we now turn to the substance of With these standards in arguments. defendant’s of a first consider whether exceeded
We will
The fourth amend
handling
of defendant.
proper Terry
their
permits only those seizures
United
Constitution
ment to the
States
Gherna,
165, 181
Ill. 2d
People
that are reasonable.
seizure,
permissibility
an automobile constitutes
Stopping
Mendoza,
Terry.
analyzed
in
(2006).
which is
accordance
steps: we must
analysis consists of two
App. 3d
*4
inception and
justified at its
second
stop
whether the
was
first consider
given
the circumstances
it was reasonable
ascertain whether
Moss, 217
v.
Ill. 2d
People
first instance.
in the
justified
that
(2005).
was
case,
dispute
there is no
expired license-
an
justified
inception,
at its
in that O’Brochta observed
plate sticker
operating.
on the vehicle that defendant was
Defendant’s
then,
argument,
portion
analysis.
turns on the second
of the
Determin
ing
police questioning
during
that occurs
the course of a traf
fic stop
scope requires
is reasonable in
three-part analysis. People
v.
(2003).
Gonzalez,
First,
204 Ill. 2d
if the questioning is reason
ably
purpose
related to the
of the
it is
stop,
permissible
inquiry
and the
Gonzalez,
Second,
terminates.
Clearly, questioning defendant about completely unrelated to the observed expired violation—an license-plate sticker— that provided the basis for It was also unrelated defendant’s admission that he while his license was revoked. we must consider whether the police had a reasonable suspicion articulable justified questioning defendant about whether he was in possession any narcotics. Whether the a reasonable suspicion that activity criminal was afoot is judged with reference to the totality of the People Austin, circumstances. v. 365 Ill. (2006). App. 3d When a number of law enforcement officers concert, act in knowledge they possess collectively must be considered in entirety, its and it is of no moment that given individual does possess knowledge sufficient give rise to a (1985). reasonable suspicion. People Eyler, 132 App. 3d 799. The inquiry focuses on the circumstances known to the at officers (1997). time of questioning. Ertl, People 292 Ill. stated, As has oft been a mere hunch does not constitute a reasonable suspicion. Crest, case,
In this point salient whether the had knowledge gave rise to a reasonable and suspicion articulable that defendant possessed narcotics, since that objected-to is what the questioning was about. From their testimony, it is clear that Gilhooley O’Brochta and knew virtually nothing alleged about the apartment transaction at the complex. general O’Brochta testified terms. He described the operation he was supporting following manner: “There were surveillance watching drug officers suspected drug dealers. dealers — dealers, detectives would inform us drug which vehicle met with at which time try we would follow vehicles that met with the drug dealers.” As for regarding defendant, the call he received O’Brochta testified that he was informed that a silver Kia had left the *5 drug dealers. As for occupants suspected after its met with
complex dealers, drug O’Brochta why they suspected that the individuals were vehicles, stopped had after other who been occupants added that purchased had apartment complex, meeting individuals at with following exchange place took point, At drugs from them. one defense counsel O’Brochta: between drug “Q. you Kia met with [sic] talk about the silver said Lets do, Kia do occupants did the of the silver dealers. did it what What drug dealers? when it met with Raysby is that vehicles got The information I from Detective
A. dealers, approaching drug they were pulling up to these vehicles, was made where cash type a hand to hand transaction exchanged. was car, cars,
Q. the silver Kia. Talking about this not all I Raysby, don’t know.” A. You’dhave to ask Detective knowledge about possessed it that O’Brochta is clear been involved. alleged to have in which defendant was transaction following in the attorney engaged Similarly, Gilhooley and defendant’s colloquy: drug deal was?
“Q. Well, you know the nature of the do what A. No. seen the silver
Q. you it who claimed to have Do know who was drug deal? Kia involved No, I don’t.
A. purchased? Q. drugs kind of that were youDo know what A. No.
Q. man or white man? Or from a black A. No.
Q. a man or a woman? Or from
A. No. of the observer?
Q. vantage point you Or did know the A. No. drug involved in the many people were
Q. you know how Do deal?
A. No. or audio of such a or video
Q. you photograph aware Were drug deal?
A. No. only thing you say
Q. And, fair to fact, it would be remember, that there don’t somebody you name whose say so of drug deal? possibly A. Correct.” regarding no information provide O’Brochta, Gilhooley could
Like complex. apartment place took at the transaction determining to consider in That leaves few facts for us expand suspicion had a reasonable sufficient the officers First, regarding narcotics. we Terry stop inquiry to include an were known to Apartments the fact that the Bradford Court have Second, defendant did meet high-crime, high-drug as a area. dealer, suspected being drug with someone whom another officer officer, Raysby, though why presumably do not know the other we do that other suspected dealing drugs. that individual of We know meeting apart- people individuals had been arrested after there, drugs ment but do not know complex purchasing person whether the defendant met was the who individual with whom prior Finally, sold to these arrestees. we know that another of- Raysby—suspected purchasing drugs. defendant of These facts ficer— *6 suspicion are an insufficient basis to form a reasonable that defendant purchased drugs apartment complex. at the fact, presence high-crime, high-drug
The first defendant’s in a area, provide support position; however, does some for the State’s presence high-crime area, itself, in a by is an insufficient basis for a Wardlow, suspicion. 119, 124, reasonable Illinois v. 528 U.S. 145 L. (2000) (“An 570, 576, Ed. 2d 120 S. Ct. presence individual’s alone, in an area expected activity, standing enough of criminal is not support reasonable, a particularized suspicion person that the is crime”). committing Indeed, fact, only a the as it second was based on testimony meeting O’Brochta’s that others had arrested after been in apartment complex, really just way with individuals the is another saying of high-crime Thus, that defendant was in a area. if reasonable suspicion case, something existed in this had to be there more than the fact that defendant Apartments. was at the Bradford Court Moreover, “something more” had “specific to be additional articulable facts raise a suspicion person which reasonable stopped Avant, has committed or People is about to commit a crime.” Ill. App. 3d do in the record. appear Such facts not key problem with the State’s case here is that the officer who observed the transaction did As testify. previously, noted we determining could have considered in Raysby what observed whether suspicion, justify expanding reasonable sufficient to Indeed, Fox, (1987), stop, existed. 155 Ill. this court wrote: together, knowledge each working
“Where officers are all, rely knowledge arresting right and the officerhas the knowledge giving together on the officer the command personal knowledge. his own cause for an ar- [Citations.] Probable may by rest be established on the basis of all the information [citations], and, working knowledge officers in concert even such if arresting officer, may by
is not told to it be considered the trial determining long court in there cause so placed (Emphasis such information was somehow added.) in the record.” Although Raysby knew, could have considered what those facts presented proceedings were never realize that below. We Fox speaks cause while the instant case involves reasonable however, same, suspicion; inquiry essentially provides quantum support of information needed differs. Fox guidance here. nothing by clarify point. wrong rely-
We wish to one O’Brochta did ing Raysby’s acting may rely on communication. Officers in concert on However, provided by information or directions other officers. when it court, justify comes time for the State to its actions in we must be presented acting with the relevant information that the officers were upon. judicial regarding propriety Insofar as a determination of a concerned, seizure is there is officer simply no doctrine allows an good to act in faith on the of another officer. officers can word While concert, presented justify act in sufficient facts must be to the court to reliance, judicial proceeding, question. the action reasonable (see judicial save on a determination rendered officer United Leon, 897, 916-21, 677, 694-97, States v. 82 L. Ed. 2d 104 S. (1984)), bearing Ct. 3417-19 has no on the outcome of a case such as this. Graves, upon People
The State relies 390-91 (1996), suspicion the court reasonable that the defendant where found following facts: purchased on the testimony suppression hearing
“Our examination of the at the *7 finding in concludethat the trial court did not err that leads us to reasonable, on a ar- stop the of the taxi the officers was based by Terry activity contemplated of criminal suspicion ticulable testimony purchases of cocaine There that controlled Ohio. was arrest during preceding from the week defendant’s the residence supply. of cocaine Surveil- identified the residence as a location searches, leaving lance, questioning persons the residence and arrest established during preceding the three hours defendant’s time from the residence were at that that cocaine sales within entering im- ongoing rampant. Defendant’s movements a.m., while his taxi waited the residence at mediately departing had block, what surveillance shown the were consistent with down drug purchases.” typical to be a scenario indicates, there was Graves, quotation of the In as the last sentence at the residence actual conduct testimony regarding the defendant’s sold, suspected being and the court noted from which cocaine was that the defendant’s conduct was “consistent with what surveillance Graves, drug purchases.” typical had shown to be a scenario for case, nothing of defendant’s present 3d at 391. the we know conduct, All why purchased much less it indicated he had narcotics. present is that he was at a location where we know frequently enough suspicion. sold. That is not for a reasonable See (1992) (“The Harper, 205-06 facts known People simply to the officers did not establish an articulable basis to believe been, be, that a crime had or was about to committed. The officers merely parked subject observed defendant car the leave a near premises, time, enter the building, remain for a short and leave. The did any building officers not observe transactions within or hear any They conversations. did not know what defendant did while inside building. They report not received a crime suspicious or activity vicinity. Their stop decision to defendant was based on no more than a might hunch that he in drug activity”). be involved
Accordingly,we conclude that the officers did possess a reason- suspicion able possession narcotics, defendant was in which would have expand allowed them to stop. of the We will not engage conjecture regarding Raysby might observed, what have although we note that the one fact in the record point relevant to that indicates that whatever he observed anwas insufficient basis for a stop. Raysby Had anything observed justified that would stop, have likely he would simply have directed stop O’Brochta to defendant. Instead, O’Brochta defendant, looking followed for a traffic violation justify stop. Hence, the most we can discern from the record is that no reasonable and suspicion articulable question existed to narcotics, defendant about State, reason, for whatever chose not to call Raysby dispel this inference.
Having concluded that there suspicion was no reasonable ques tion defendant narcotics, about whether, we must next given consider totality circumstances, questioning “impermissibly prolonged the changed detention or the fundamental nature of the stop.” Gonzalez, 204 Ill. 2d at appear 235. It does not from the record prolonged extent, to more than a de minimus so we must focus on whether questioning changed the nature of the
Before question, we answer this must determine exactly what nature of the at questioned the time defendant was about narcotics. It is well established that fourth rights amendment are personal, is, protects people amendment places. rather than “ v. Rosenberg, 213 Ill. 2d ‘they may be
196 by enforced exclusion of at the instance of one evidence whose ” protection infringed by Rosenberg, own was the search and seizure.’ States, 377, 389, quoting 213 Ill. 2d at Simmons v. United 1247, 1256, L. 2d emphasize 19 Ed. 88 S. Ct. rights at the outset that defendant is not entitled to assert the vehicle, in if passenger stop erroneously expanded her, regard appeal. with it is of no relevance to the resolution of this if prevail only rights Defendant can his fourth amendment violated.
Next,
approached
defendant’s
we note
when O’Brochta
him,
spoke
vehicle and first
with
defendant stated that he could not
a
This
produce
driver’s license because it was revoked.
admission
suspicion
forms a basis for more than a reasonable
that defendant had
cause, and,
crime;
a
it
probable
impor
committed
constitutes
more
below,
probable
it
an of
tantly
explain
provided
as we
cause for
will
fense that
of a traffic
scope
took
encounter outside
Anderson,
(1983),
People
App.
Ill.
3d
the court held
that,
view,
statement,
O’Dell,
“In
our
defendant’s
as related
officer
he
that he broke a window at the Messick residence after
and two
committing
burglary,
there
the intent of
companions arrived
with
probable
was in
establish
cause that defendant had
itself sufficient
added.)
participated
burglary.” (Emphasis
in the commission of a
See
(1976) (“Once
Jordan,
probable
People
also
established,
is, by
the admission of the defendant that he
cause is
incident
thereto are
purse,
had snatched a
the arrest and search
Indeed,
are
proper”).
against
statements
one’s interest
considered
Weston,
604, 611
presumptively
reliable.
(1995) (“One
information is found
admis
reliability
indicia of
information”).
giving the
against
penal
party
sions
interests of the
circumstances
requires only
cause
that the facts and
warrant
Probable
Gherna,
a crime.
a reasonable belief that an individual has committed
straightforward statement
that his
A an officer has reasonable or where very a traffic is a to believe that an individual has committed violation different from an officer has cause to believe situation when offense. v. People that an individual has committed a more serious (2000) (“A Smith, 772, traffic App. stop 315 Ill. 3d 775 for a minor arrest”). something very violation is different from a lawful custodial distinction, provided On this has supreme our court us with fol lowing guidance: officer observes a driver commit a traffic viola
“When tion, justified briefly detaining the officer in is the driver to investigate initial may perform [Citations.] the violation. The officer some
inquiries, license, check speedy the driver’s and conduct a suspicion [Citations.] warrant check. If no further in is aroused following inquiries, officer farther. stop go these the traffic should [Citations.] warning The officer should issue a ticket or a citation, appropriate, People allow the driver to leave.” v. (2002). Cox, 202 2d 468 Despite language, this it is unclear as to Cox should be read as stating that an officer may never arrest an a traffic individual for violation.
The dissent writes as if point the law on this were settled and states that we “cannot seriously contend that in [Cox and Jones, (2005),] 215 Ill. 2d 261 our supreme court determined somehow City Vista, [v. Atwater Lago 2d 149 L. Ed. (2001),] S. Ct. 1536 is not the in law this state.” 369 Ill. at contrary, 208. On the precisely we do contend holdings that the in Cox and Jones are inconsistent holding with the central of Atwater. Cox, decision, a four-to-three provoked strong and well-reasoned dis sent that directly pointed majority out that “the explains never how its decision is consistent the Supreme with Court’s recent in decision Cox, Atwater.” (Thomas, J., 202 Ill. 2d at dissenting, joined by JJ.). Fitzgerald Garman, point directly Given expressed to the majority, majority it is doubtful that the Cox unaware of Atwater it passage quoted preceding when wrote the paragraph. likely It is more majority that the in Cox considered and rejected itself, decision, Atwater.1 We note that Atwater a five-to-four is hardly supreme uncontroversial. Our court appeared repudiate Cox attempt lockstep by
1The dissent’s citing People to invoke the doctrine Caballes, (2006), misplaced. agree 221 Ill. 2d While we that in most wrote, it “The stops proceed Gonzalez when fact that most traffic ‘Terry stops,’ analyzed Terry principles,
like
and are thus
under
does
cause,
not mean that where a
is based on
an arrest of
passenger
necessarily
the driver or
prohibited under the fourth
Gonzalez,
amendment.”
In since Jones is the latest court, it, as, indeed, supreme (People we will we are bound to do follow (2002)). Batrez, point 334 Ill. The salient Jones a a different situation purposes stop presents for our is that traffic Though'driving with a from an arrest for a more serious offense. vehicle, a more operating is related to a it is much revoked license than, and therefore example, equipment for an violation serious matter By way offender’s liberties. greater upon intrusion warrants controls, where, here, supreme lockstep court has rule situations it, rejected believe it rule and we do not apparently considered a federal holding express of our apply general principle to contradict an proper to undoubtedly slate, fol- writing we would supreme court. If we were on a blank of our Atwater; however, must follow the decisions we are not and hence low supreme court. stops officer following. Suppose that a
analogy, consider the
robbery. Assume also
driving away from the scene of a bank
suspect
suspect has
cause to believe that the
that the officer has
stop
occurred while the
robbed the bank. The mere fact that
ability to
driving
way
limits the officer’s
suspect was
a vehicle
act,
may simply arrest
this is not a traffic
The officer
Wither,
People v.
a search incident to arrest. See
suspect
conduct
Belton,
(2001),
York
quoting
New
(1981) (“Thus,
454, 460,
L. Ed. 2d
101 S. Ct.
occupant
an
has made a ‘lawful custodial arrest of the
when
officer
arrest,
automobile, may,
contemporaneous
an
as a
incident of that
he
”).
search
of that automobile’
passenger compartment
context,
In a more familiar
the distinction becomes obvious
having
suspicion
between
either reasonable
or
cause for a
like)
(which
Gonzalez,
by
Terry,
traffic offense
is controlled
and the
(which
not).
cause for a more serious offense
A com
mon sort of case that the courts of this state confront is where an of
ficer
a traffic
initiates
then observes contraband in a vehicle.
fact,
Jones,
the situation that confronted the court in
215 Ill. 2d
case,
provides
example.
a concise
In that
officer stopped
the defendant
taillights
because the
on the vehicle the defendant was
driving
working. Jones,
“In [the] Gebke observed that the vehicle which inoperable taillights, defendant was a clear violation of our vehicle code. [Citations.] Gebke’s initial and, therefore, supported by probable defendant’s vehicle was cause justified inception. point, [Citation.] was more, at its At this without authority lacked Stop [the]
Gebke
to search
defendant.
ping
not,
itself,
an automobile for a minor traffic violation does
justify a
person
search
detainee’s
or vehicle. The officer
reasonably
confronting
must
believe that he or she
a situation
Jones,
more serious than a routine traffic violation.”
The officer then observed in
pocket
the defendant’s shirt
a small
*11
box,
wooden
recognized
drug paraphernalia. Jones,
which he
215
Ill. 2d
box,
at 271. The officer then properly
opened
seized and
Jones,
discovering
Having
cannabis.
200 the front seat of the marijuana automobile. Since the in was observed view, Hourigan plain probable cause to seize the contraband and place suspects under [Citation.] arrest. officers justified in conducting a further search of the vehicle incident to arrest, including police reasonably containers the might believed [Citation.]”). case, course, contain contraband. In this are deal- ing probable operating cause to believe that defendant a vehicle while his license was revoked.
Driving while one’s license is revoked is a more serious offense greater and warrants a driving registra intrusion than without a valid displayed. tion sticker Numerous cases held that have a search incident justified to arrest operating where a defendant is a vehicle without Robinson, 234-35, 218, driver’s license. See United States v. (1973) (search 427, 440, 38 L. Ed. 2d 94 S. Ct. 476 incident to ar justified by license); rest driving arrest for with a revoked v. People (1990) (“We Perry, App. 204 Ill. already 3d have determined based on the defendant’s failure registra to have a rear tion plate produce was valid. After defendant’s failure to a valid driver’s license violation of section 6 — 112 of the Illinois Vehicle (Ill. 95V2, 112), Code Rev. Stat. ch. par. the custodial arrest 6 — legal Cannon, at the scene and appropriate”); People was both (1974) App. (“Upon Ill. 3d ascertaining that the driver had possession, right duty no valid license his it then became the officer to make a custodial arrest for this additional misdemeanor consequently legal right complete he had the to effect a search of person”); People Gilyard, driver’s cf. (1970) (“The produce failure of Shumate to his driver’s license at the request arresting officers was a circumstance sufficient to war rant an officer’s may dealing reasonable belief that he be with a violator”). If criminal rather than a mere traffic a search incident to justified license, fortiori, a driving arrest with a revoked Therefore, justified. custodial defendant’s that he arrest is admission provided probable with a revoked license cause for words, him In custody. to take into other the encounter was no longer Terry stop. stops traffic confirm that a
Similarly, cases that do not deal with Terry develops. for an arrest stop terminates when cause Herron, (1980), the court wrote: suspect questioned “After the is made and the has been First, officer weapons things happen. frisked for one of two can suspect can find that there is cause the committed crime, Second, him. the officer which case the officer can arrest cause, in case the officermust can find there is not which release the defendant.”
201 once liberty is allowed greater a intrusion on an individual’s Since an officer’s actions are no develops, it follows that probable cause Moreover, Terry progeny. and its longer limited the dictates of must, made, can, than be held that an arrest rather the Herron court relation- necessary formal arrest is not to alter the apparent it is that a prob- It is the existence of ship between the officer and individual. relationship. able cause that alters the dissent, find moment that defendant unlike the we it of no ownership arrested at the time he admitted formally
was not information and that O’Brochta later ran defendant’s license narcotics is, course, that defendant’s license was It of well to confirm revoked. subjective intentions and beliefs have established that an officer’s bearing question justified. People of a seizure is on Moss, 511, (2005), 21-22, 20 quoting Terry, Ill. 2d 529 392 U.S. at States, L. Ed. 2d at 88 S. Ct. at Carroll v. United quoting (1925) (“An 132, 162, 543, 555, 267 U.S. 69 L. Ed. 45 S. Ct. subjective feelings may pat-down officer’s not dictate whether a search Rather, objective: or the test [Citation.] valid invalid. Would facts available to the officer at the moment of the search “warrant a ap man of reasonable caution in the belief’ that the action taken was ”). propriate?’ Regardless Gilhooley at what O’Brochta believed any given time, committing when defendant admitted an offense more offense, greater serious than a traffic probable cause existed for a intrusion on his fourth amendment interests. places great emphasis
The dissent on the fact that a formal arrest did complained-of questioning, stating, not occur until after the “Had they charge asking ques arrested defendant on either before him the drugs, apply, question tion about test not as the Gonzalez would arrest, an during would have arisen after the course of a traffic stop.” reasoning contrary 369 Ill. 3d at runs to a 208. This cases, following paragraphs, number of which set forth in the deal il search-incident-to-arrest doctrine. These cases are luminating they relationship because show that the between a law suspect may change enforcement officer and a such that a search is Further, despite warranted the lack of a formal arrest. what allows greater arrest, is, course, authority intrusion is the which dependent probable develops, on cause. Once that cause may law enforcement officer take actions that would be outside has been Terry stop regardless of a of whether a formal arrest (2005) (“A Tillman, made. See if proper search incident arrest is the search is conducted valid contemporaneously immediately prior either or to the arrest” added)). (emphasis
In Rawlings Kentucky, 65 L. Ed. 2d Ct. 100 S. (1980), the United States Supreme recognized Court in an analogous situation that development cause allows for greater though intrusion even an formally officer does not arrest a There, suspect. the Court wrote: Supreme Kentucky, difficulty
“Like the
Court of
uphold-
we have no
ing
petitioner’s
this search as incident to
formal arrest. Once
petitioner
ownership
quantity
admitted
of the sizable
purse,
found in
police clearly
Cox’s
place
cause to
petitioner under arrest.
the formal
quickly
Where
arrest followed
*13
on
challenged
the heels of the
of petitioner’s person,
search
we do
particularly important
not believe it
preceded
110-11,
that the search
the
Rawlings,
arrest rather than vice versa.”
Coincidentally, probable case, cause in in Rawlings, present as the event, arose from an by any admission the defendant. In the lesson that, Rawlings from probable develops, relevant here is once cause the police longer by are no limited the Terry. Despite constraints of the made, fact that no formal had yet Rawlings arrest been court held that a search justified. incident to an arrest was Such a search strikes us as far more simply detaining very intrusive than defendant for a time, him, short putting questions making a few to him wait a spoke brief moment while O’Brochta the passenger. with See also (4th Miller, 1991); United States v. 925 F.2d 698 Cir. Com (1988) Elliott, 536, 551, monwealth v. Pa. Super. 546 A.2d 661 (“An may briefly officer detain a suspect proceed and then to conduct gleaned during an actual search if the ripen facts that detention into arrest”). probable cause to
Finally, Erb, (1970), we note that in Ill. App. rejected this court argument the defendant’s that the failure of the police formally probable arrest her invalidated a search cause where There, existed to detain her. we wrote: places emphasis
“Miss Erb on a contention that she considerable purse police was not of her arrested until after search at the justified by station. We do not deem this material even if it were police probable opinion facts. Since the cause our detain her and undertake search at the arrest site and later [citation], purse probable her at the station cause to arrest scene, may existed at the and the arrest be considered to have been charges may though made at that time even formal not have been Erb, brought Ill. 2d at 134. until later.” Here, again justifying we find the existence of cause more though yet no arrest had police intrusive action even formal been made. he admitted that after defendant conclude that
Accordingly, we offense sufficient revoked —an his license was while 787) 3d at (Perry, to arrest search incident justify a —the The encounter was over. portion of his encounter with Terry longer a traffic was no defendant and between changed the nature questions the officers’ question of whether moot. As the Seventh Terry, is therefore stop, purposes for the interrogate a noted, may officer Appeals aptly “[A]n Court of Circuit that the inmate possibility offense about the person prison on one tell, and, can This is normal as far we committed another. concerned, amendment is as far as the fourth unquestioned propriety cause to believe that or not the officer has rights has under the prisoner inmate other crime. The committed perhaps the sixth. He can refuse to answer fifth amendment incriminating questions may be entitled to counsel.” United States (7th 2002). Childs, Similarly, person 277 F.3d 950-51 Cir. once Terry stop is beside custody, any is in discussion about point. case, since defendant’s admission created this that defendant committed an offense more serious cause to believe justify a traffic and sufficient to a custodial than is associated with Gonzalez, arrest, stops, provide cases like deal traffic which and, turn, guidance, Terry provides suppress no basis to either physical defendant’s statement that the were his or the evidence recovered from the car. issue, leaving
Before note that the dissent chastises us *14 in case and purported unworkability apply the of the rule that this provides quotations major to this end extensive from Justice Souter’s this, ity opinion in 3d at 209-11. To we set forth Atwater. 369 Ill. response: Justice O’Connor’s majority bright-line rule focused on
“The insists that a easily necessary cause is to vindicate the State’s interest [Citation.] rules. Probable cause administrable law enforcement itself, however, precision. quantum is not a model of ‘The which information which constitutes cause—evidence in the belief’ that a would “warrant a man reasonable caution by facts of the committed—must be measured the [crime]has been merely particular propose [Citation.] The rule I case.’ —which decision to escalate the seizure requires legitimate reason for the an otherwise does not undermine into a full custodial arrest—thus simple’ [Citation.] rule. ‘clear our clarity certainly worthy of consideration in is a value
While
by
trumps
Amendment
means
jurisprudence,
it
Fourth
Amendment’s
liberty
heart of the
privacy
values of
at the
protections.
Terry
What the
in precision
up
rule lacks
it
makes
fidelity
to thé Fourth Amendment’s command of reasonableness
sensitivity
competing
to the
protected by
values
that Amend-
past
years,
ment.
appears
Terry
Over
it
rule has
easily applied by
been workable and
ter,
officers on the street.” Atwa-
More
if
even
the dissent is correct about the work
ability
rule,
authority
we lack the
to overrule Jones. Whatever
rule,
the merits of the
supreme
Jones is our
court’s
pronounce
latest
ment on the issue. Finally,
suggests
to the extent the dissent
police
(369
206)
being hamstrung
rule,
are
Ill. App.
3d at
we make
First,
doubt,
two observations.
if in
only
need
remain within the
Terry
Gonzalez,
bounds of
as articulated in
exactly
which
where
position
dissent’s
anyway. Second,
would leave them
affirming
we are
dissent,
Jones,
conviction here. It is the
rejection
based on its
advocating
reversal.
argues
Defendant further
that his statement should have been
suppressed because it
coerced.
was
Defendant relies not on the absence
(Miranda
warnings
Arizona,
of Miranda
16 L. Ed. 2d
(1966)); rather,
B. Proof of Guilt proven guilty beyond Defendant also contends that he was not contention, assessing a reasonable doubt. such a we must view *15 and, if light record in the most favorable to the State rational trier of the essential elements of the crime fact could have found doubt, Ill. People Sturgess, a reasonable must affirm. 364 beyond we
205 to of fact (2006). of the trier Moreover, it the role 107, App. 3d evidence, and draw witnesses, assign weight credibility assess Matysik, People from evidence. inferences (2006). his statement corroborated argues that no evidence Defendant of the possession him in his, ever drugs were as no one saw possession in another’s found narcotics —which were —and coerced his statement was He maintains that statement was coerced. being placed in his child regarding forth above for the same reason set setting corpus case law forth custody. Defendant cites protective suspect. are rule, that uncorroborated confessions delicti which holds (1982). argument, His 89 Ill. 2d People Willingham, See rule, because however, rely presumably on that does not rest on a bare confes and his conviction does actually recovered satisfy corroboration only sion. A confession needs minimal evidence, of the rule, independent some enough as it is that there be did v. Phil confession, that the crime occur. that tends to show Moreover, corroborating evidence 215 Ill. 2d lips, beyond a reasonable doubt that the crime proof need not constitute of the narcot Phillips, recovery occurred. at 576. satisfy ics would delicti rule. corpus directly;
Again, rely corpus defendant does not on the delicti rule essentially argue he it that it should impugn uses his statement and weight. argument suffers from two given have been Defendant’s above, assign First, it is the trial court’s function to flaws. as noted fundamentally, Gilhooley specifically denied weight to evidence. More pas- anything at trial that was said both defendant and his about jail being protec- child taken into senger going to or about defendant’s custody. support argument, again In of his defendant can cite tive following hearing on defendant’s testimony. his own Just as it did motion, suppression the trial court found at trial that defendant lacked erroneous, and defendant credibility. say finding We cannot that this gives why Accordingly, conclude that us no reason we should. we guilty beyond a reasonable doubt. proven defendant was
III. CONCLUSION foregoing, judgment affirm the of the circuit light of a County finding guilty possession Du defendant Page court of 570/402(c) (West 2002)). (720 ILCS controlled substance Affirmed.
BOWMAN,J., concurs. *16 CALLUM,
JUSTICE
dissenting:
In People Gonzalez,
(2003),
204 Ill. 2d
supreme
our
court
straightforward
announced a
test
“determining
whether
police questioning during the
course of a traffic
Terry’s
satisfies
scope requirement.”
Further,
the court noted that
applies
the test
presence
“even in the
Gonzalez,
cause.”
As is clearly as it contradicts not Gonzalez but explicit also an holding of the United Supreme States policy, Court. As though, worse, it is even replacing the Gonzalez test with an unwork- able rule that hamstring police will the Accordingly, the courts. I dissent. begin
I by applying will the Gonzalez test —all of it—and then I explain why will majority First, the errs in refusing however, to do so. a review of the factual context. When the police saw that defendant was a vehicle an expired registration sticker, they had probable cause to believe that defendant committing was a criminal offense, 413(f) they effected a valid traffic stop. See 625 ILCS 5/3 — (West 2002) (prohibiting, specific penalty, without operation of a expired vehicle with an registration sticker); 625 ILCS 5/16 —104 (West (an 2002) Illinois Vehicle Code violation for specific which no penalty provided offense); is a petty Black’s Dictionary Law (6th 1990) (a petty ed. crime”); offense is a “minor People Orsby, (1996) (officers’ 146-47 observation of a minor provided probable traffic violation cause to effect a traffic stop). When defendant revoked, admitted to the that his license had been cause to believe defendant had committed 303(a) (West 2002) (driv a second criminal offense. See 625 ILCS 5/6 — ing while license is A misdemeanor); revoked is a Class People (1983) (defendant’s Anderson, 112 Ill. App. admission cause). provided probable alone The police then asked defendant there drugs Only whether his vehicle. later he ar rested. arrested,
Because question defendant had not been about stop.” Gonza a traffic during the course of obviously “questioning satis question whether to determine lez, Ill. 2d at 235. That test. the Gonzalez apply must requirement, Terry’s scope fies prongs: three test consists of matter, question consider, as an initial must
“[W]e question If the justification for the initial related to the is reasonably amend stop, no fourth of the purpose to the related reasonably related is not question occurs. If the ment violation enforce the law consider whether stop, we must purpose would reasonable, suspicion that articulable had a ment officer amend justified, no fourth question If the is so justify question. reasonable connection In the absence of a ment violation occurs. reasonable, suspicion, we stop or articulable purpose of the com whether, circumstances and light of all the must consider the detention or sense, question impermissibly prolonged mon Gonzalez, Ill. 2d stop.” changed fundamental nature of the *17 at 235. I correctly prongs. first two majority applies applies
The —the —and unrelated to completely agree question that the about I further registration sticker. driving expired defendant’s with an reason by independent an agree question supported was not out, I majority points the third the suspicion. prong, able As to than a de minimis nothing the record more again agree, that shows that, therefore, we must determine prolonging of the majority, The question changed stop’s the fundamental nature. question course, determination, is that the avoids this but answer stop. This court has changed indeed the fundamental nature of noted, unsupported an unrelated and repeatedly unassailably, that “ stop into a question ‘convert[s] a routine traffic about contraband ” (2004), Parra, 584, App. Ill. 3d 589 fishing expedition.’ People v. 352 (2004). Thus, Hall, 501, accord 505 quoting People test, Terry’s scope require ing question to the Gonzalez violated ment. The by holding as follows. majority
The
avoids this determination
during
a traffic
when
applies
questioning
test
Gonzalez
has commit
that the defendant
police
probable cause to believe
have
expired registra
violation,”
driving
such as
with an
ted
“a traffic
something
However,
“for
probable cause exists
tion sticker.
when
one’s
violation,”
as, apparently, driving while
more than a traffic
such
custody,” and
revoked,
be taken into
license is
the defendant “could
3d at 197.
not
apply.
thus the Gonzalez test does
may
acknowledge is that a defendant
majority refuses to
What the
any criminal
cause exists for
custody
be taken into
when
violation. This is
open
not an
question. In Atwater v. City Lago
Vista,
318,
532 U.S.
149 L. Ed. 2d
121 S.
(2001),
Ct. 1536
United States Supreme Court addressed the constitutionality of an ar
rest
crime,
for a minor
such
fine-only [i.e.,
as “a
petty] traffic of
Atwater,
fense.”
at
149 L.
Ed.
at
121 S. Ct. at
(West
1554;
2002) (a
see 730 ILCS
petty, offense punish
5/5—1—17
only).
able
a fine
that,
The Court
“[i]f
held
an
officer has
cause to
believe
an individual has committed
very
even a
minor
criminal
presence,
offense
his
may,
he
violating
without
the Fourth
Amendment, arrest the
Atwater,
offender.”
As a premise majority’s argument is completely Yes, invalid. could have arrested defendant driving for while his license they was revoked. But also could have arrested defendant with an expired registration they sticker. Had arrested defendant charge on either asking before him question about drugs, the Gonzalez test apply, question would not as the would have arrest, arisen after an during However, the course of a traffic question arrest, arose before the so the encounter was still a traf- fic stop, the Gonzalez applies, question test and the Terry’s violated scope requirement. majority’s bank-robbery analogy *18 thoroughly unavailing. is
The majority that, suspect observes when a driving away from the scene robbery, of a bank probable permits cause police “simply to arrest the suspect conduct a search incident to arrest.” 369 Ill. App. 3d at 199. elementary, nothing This is but it has to do with the nature of the offense. police probable When the have cause to believe suspect offense, that a any has committed such as an with expired registration sticker, they may “simply too the suspect arrest and conduct a search incident they may to arrest.” What not do is suspect, ask him an unrelated and unsupported question offense, wholly separate about a him only and then arrest after their fishing is done. that it observes its error when compounds majority only
The Terry stop stops confirm that a deal traffic that do not “cases App. develops.” arrest cause for an probable terminates when analysis. line of with this problems are two obvious at 200. There says and it stops, deal with traffic a case that does First, Gonzalez is of presence stops to “even Terry apply such principles that Second, in this again, at 228. Gonzalez, 204 Ill. 2d probable cause.” outset, at the when developed an arrest case cause for If cause registration sticker. police expired saw defendant’s that stop, proposition Gonzalez terminates a traffic for an arrest majority Yet the a traffic expressly rejects, then was never (369 App. Ill. longer stop” no a traffic that the encounter “was insists 203) defendant police had cause to arrest only after the 3d at stop” a traffic than is associated with for “an offense more serious (369 203). authority to simply logic sup There is no or 3d at port this. an that undermines majority closes with assertion
Strangely, is in discussion person custody, any “[0]nce its entire analysis. Terry stop point.” 369 111. 3d at about the is beside agree questioned I If the defendant police 203. could not more. taking custody, gladly I concede that about after him into would longer Terry’s scope requirement the traffic and that was over have defendant into applied. although But could taken custody, during stop, they declined to do so point at the traffic they questioned drugs. holding until after him Under the clear about Gonzalez, of a traffic questioning during their occurred the course stop, Terry’s and it violated scope requirement. defective, unfortunately majority’s holding legally but I only beginning. enjoy imagining
this is do not what the I they apply to our rule. Even were try the courts will endure agree only “something may more than a traffic violation” arrest, an I line is justify explain would have no idea how where the course, “something between “a traffic violation” and more.” Of Court, which invoked such Supreme neither would the United States practical implications rejecting such lines. Atwater, justi- the defendant submitted that arrests should be
fied
could result
commit-
for offenses “for which conviction
”
“
Atwater,
U.S. at
‘fine-only’
ment” and not for
offenses.
responded:
149 L. Ed. 2d
at
at
S. Ct.
1554.
Court
course,
distinction,
officer on
is that an
“The trouble with this
merely
we cannot
might
It is not
street
not be able
tell.
complex
expect every police
frequently
officerto know the details
schemes,
ostensibly identi-
penalty
penalties
but that
[citation]
*19
(if
cal
vary
conduct can
on account of facts difficult
impossible)
to
Atwater,
348,
know at the scene of an arrest.”
either apply speeding? [Atwater to that] asserts ‘it would not be reasonable to a driver for speeding arrest unless the *** speeding driving.’ rose to level of reckless [Citation.] [But] why, matter, aas constitutional only should we assume reck- that driving ‘pose less will danger a others on the speed- to road’ while ing Atwater, will not?” 532 U.S. at 149 L. Ed. at 121 S. Ct. at 1555. eerily applicable Court’s conclusion is present to our discussion:
“There is no need for more examples to show that Atwater’s general limiting proviso promise very rule and way little *** administrability. Atwater’s only place rule therefore would not police in an impossible spot guarantee almost but would increased litigation many over of the arrests that would occur. For all these reasons, permissible Atwater’s various distinctions between impermissible arrests for minor ‘very crimes strike us as unsatisfac- tory require police line[s]’ to on officers draw a moment’s Atwater, 574-75, notice.” L. at 149 Ed. at 121 S. Ct. at 1555.
Here, just line,” the majority “unsatisfactory draws such an “something If, between “a traffic only if, violation” and more.” police have cause to that a believe defendant has commit “something more,” they may ted defendant, arrest and their questioning subject However, is not Terry’s requirement. as to more,” what is “a traffic “something major violation” and is what provides no ity guidance Driving expired registration at all. with an sticker and is prohibited while one’s license revoked are both why the Illinois So “a Vehicle Code. former traffic violation” I agree the latter is not? is “much more serious” while latter (369 198), why 3d at but does this not mean that the lat And, may repeat I ter a “much more serious” traffic violation? if the Supreme question, speeding? Speeding Court’s what about is obvi ously “a stop” “associated with traffic and thus must be traffic that, surely majority suggest person violation.” But would not if per through 20-mile-per-hour zone, drives 80 miles the hour may not arrest the driver to remove him from the road. So is excessive speeding so, must If how excessive “something more”? speeding be? though, point, questions. The
I to answer these have no idea how majority’s a work- make the there are answers would is that view, produce is certain my majority’s holding, able rule. The of this and the courts among mass confusion —and worse — *20 state. only by its surpassed sum, legal inadequacy is decision’s dissent. respectfully I impossibility. Accordingly,
practical ILLINOIS, Plaintiff-Appellee, v. OF THE OF THE PEOPLE STATE QUEEN, Defendant-Appellant. LEONARD District No. 2 — 05—0185 Second Opinion filed 2006. November