People v. Tyreke H. (In Re Tyreke H.)
People v. Tyreke H. (In Re Tyreke H.)
Opinion
¶ 1 Minor respondent Tyreke H. (Respondent) was riding his bicycle on Waveland Avenue when two police officers, wishing to speak with him not as a suspect but as a potential witness to a homicide, stopped their squad car in Respondent's path of travel in the middle of the street. When stopped, officers spotted a bulge in his pocket that resembled a firearm. Respondent confirmed his identity to the officers and admitted that he was in possession of a firearm. He was adjudicated delinquent of two counts of aggravated unlawful use of a weapon and one count of unlawful possession of firearms.
*919 ¶ 2 Respondent claims he was unreasonably seized and unreasonably searched in violation of the fourth amendment. The trial court initially agreed and suppressed the evidence of the gun, then reconsidered and reversed its ruling, leading to Respondent's adjudication of delinquency on the gun charge.
¶ 3 We affirm. We hold that a seizure did take place, but that the seizure was reasonable under the circumstances. We further agree with the trial court that the search did not violate the fourth amendment.
¶ 4 I.
¶ 5 On August 11, 2016, the State filed a petition for adjudication of wardship, charging Respondent with two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of firearms (UPF). The first AUUW count was premised on Respondent's possession of a gun while he was not in his home, was under 21 years of age, and was not engaged in lawful activities under the Wildlife Code. The other AUUW count was based on Respondent's possession of a handgun when he had not been issued a currently valid Firearm Owner's Identification (FOID) Card. The UPF count was premised on his possession of a concealed handgun while he was under 18 years of age.
¶ 6 Respondent filed a motion to quash arrest and suppress evidence. He claimed the stop, search, and interrogation went beyond the scope of an investigative stop pursuant to
Terry v. Ohio
,
¶ 7 On September 12, 2016, the trial court held a hearing on Respondent's motion. Officer Gerald Ludwich, a Chicago police officer, testified that, on August 10, 2016, at approximately 1:30 p.m., he was on duty in an unmarked car in the area of 5640 West Waveland with his partner, Officer John Rottman. Both were in plain clothes with vests that displayed a badge and name tag. 1
¶ 8 The officers were assisting Area North detectives in a homicide investigation. The detectives had asked them to locate Respondent as a possible witness and request that Respondent accompany them to headquarters for questioning about the homicide. The officers had been given a photograph of Respondent and information as to his home location.
¶ 9 While in the area of West Waveland, the officers saw an individual they believed to be Respondent riding a bicycle. Officer Ludwich testified that when he first saw Respondent, there was a bulge in Respondent's right front jeans pocket. He was about 75 feet away at the time.
¶ 10 Both Respondent and the officers were traveling eastbound. The officers drove past Respondent, visually confirmed his identity, and stopped the car just in front of Respondent, just east of him, so that he would ride directly to them. At that point, the distance between Respondent and the officers "was only ten feet possibly," but the distance was decreasing as Respondent continued traveling eastbound towards the officers.
¶ 11 The officers got out of their vehicle as Respondent stopped before them. Officer Rottman, the driver, asked Respondent for his name. Respondent identified himself, cooperated, and made no furtive movements either before or during the stop. Officer Ludwich testified that, after *920 they confirmed that Respondent was Tyreke H., it was Officer Ludwich's intention to ask Respondent some questions and ask whether he was willing to go down to the station.
¶ 12 Officer Ludwich came around the rear of the car and approached Respondent from behind. When he was about four feet away, he saw the bulge in Respondent's pocket. He testified that this bulge appeared "to be basically a handgun in [Respondent's] right front pants pocket." Officer Ludwich also stated that "[i]t was a silhouette of a handgun in a front jeans pocket." Officer Ludwich had recovered a handgun "hundreds" of times during his 23-year career with the Chicago police department. And, in his opinion, the bulge in Respondent's pocket was "different than what a typical wallet or set of keys would look like."
¶ 13 Before conducting a protective pat down of Respondent, Officer Ludwich tapped Respondent's right pant pocket to confirm, for officer safety, whether it was a firearm. Officer Ludwich described what he felt as a "hard metallic nonyielding touch." Based on what he felt when he tapped Respondent's right front pants pocket, Officer Ludwich "believed" and "knew" it was a gun in Respondent's pocket. He said, "What's this?" Respondent replied, "It's a gun. I need it for protection."
¶ 14 Officer Ludwich performed a protective pat down and recovered a .22 caliber AMT semiautomatic handgun with six live rounds, five in the magazine and one in the chamber. Officer Ludwich testified that the gun was approximately seven inches long. The weapon was inventoried, and Respondent was arrested.
¶ 15 At the end of the hearing, the trial court granted Respondent's motion to suppress. The trial court found that Respondent was "in a different position from the usual defendant because the police were not suspicious that there was criminal activity as in the case of
Terry v. Ohio
, [
"On cross-examination, [Officer Ludwich] said [the bulge in Respondent's pocket] appeared to be a handgun. It looked like a handgun. It was the silhouette. And he tapped his pocket. He patted him down. He never asked him, you know, You are a witness, would you like to come to the station?
He never gave him a chance to do that. So this is a pretty close case, but I think [Respondent] was searched illegally."
¶ 16 The State moved for reconsideration. The State argued that the court erred in its application of the law, that a police officer is not required to ask questions before recovering a weapon. The State contended that, based on Officer Ludwich's observations of the bulge in Respondent's pocket, which he believed to be a handgun, Officer Ludwich was justified in conducting the pat-down to determine if it was, in fact, a handgun.
¶ 17 On October 14, 2016, the court began hearing the motion to reconsider. The trial court looked at the gun and stated that the gun was smaller than the court had previously thought. The court said it "would like to see the gun actually in the pants to decide whether or not-that-that would be the best test of whether it can be-if it's immediately apparent to be a gun." The State's motion was entered and continued.
¶ 18 On November 10, 2016, the trial court held a hearing on the State's motion. Defense counsel noted that although Respondent had provided his pants, the police officers could not determine which pants *921 Respondent was wearing on the date of his arrest. After hearing argument from both sides, the trial court granted the motion to reconsider and reversed its previous suppression order.
¶ 19 At trial, the State presented Officer Ludwich as its only witness. He testified consistently with his prior testimony at the hearing on Respondent's motion to suppress.
¶ 20 Officer Ludwich also testified that, when he recovered the firearm from Respondent, he did not present a valid FOID card. When asked whether Respondent told him that he had a valid FOID card, Officer Ludwich testified: "I believe he said he did not." On cross-examination, Officer Ludwich testified that he did not run Respondent's name in the computer to see if he had a FOID card.
¶ 21 The trial court made a finding of delinquency on all three counts. The court later sentenced Respondent to 18 months' probation. Respondent filed a timely notice of appeal.
¶ 22 II.
¶ 23 Respondent raises two issues regarding his encounter with the police officers. He says he was unreasonably
seized
in violation of the fourth amendment, and that he was unreasonably
searched
in violation of the fourth amendment. The seizure and search questions are separate matters, of course.
People v. Sorenson
,
¶ 24 A.
¶ 25 We apply a two-part standard of review when considering the trial court's ruling on a motion to suppress evidence.
People v. Almond
,
¶ 26 But here, as to the question of the initial stop, there are no disputed facts. Officer Ludwich testified without contradiction as to the circumstances surrounding the stop of Respondent. Respondent does not claim that the officer's testimony was fabricated or implausible. (The search issue is a different matter, but we are concerned here only with the seizure.) Because the facts are undisputed, we apply
de novo
review to this issue. See
People v. Gherna
,
¶ 27 Respondent says that the police seized him when they blocked his path, forcing him to stop his bicycle and answer questions, and that they did so without any reasonable, articulable suspicion that Respondent had committed a crime. The State does not dispute the second half of that argument; it agrees that the officers lacked a reasonable, articulable suspicion that Respondent had committed a crime. But the State argues that the trial court properly denied Respondent's motion because he was not seized in the first place;
*922 the encounter between the officers and Respondent, says the State, was consensual.
¶ 28 Both the fourth amendment to the United States Constitution and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. U.S. Const., amend. IV ; Ill. Const. 1970, art. I, § 6. Our supreme court has divided police-citizen encounters involving the investigation of crime into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, or "
Terry
stops," which must be supported by a reasonable, articulable suspicion that the detainee has committed, is committing, or is about to commit a crime (see
Terry
,
¶ 29 "[A] person has been seized when, considering the totality of the circumstances, a reasonable person would believe he is not free to leave."
Almond
,
¶ 30 We agree with Respondent that the determination of whether he was seized depends on whether, considering the totality of the circumstances, a reasonable 17-year-old would believe he was not free to leave. But we emphasize that, whether we considered a reasonable person in the abstract or a reasonable 17-year-old, our decision would be the same.
¶ 31 The United States Supreme Court has identified the following four factors that indicate a seizure: (1) the threatening presence of several officers, (2) the display of a weapon by an officer, (3) some physical touching of the person, or (4) using language or tone of voice compelling
*923
the individual to comply with the officer's requests.
United States v. Mendenhall
,
¶ 32 The Illinois Supreme Court has stated that "the absence of
Mendenhall
factors, while not necessarily conclusive, is highly instructive."
Luedemann
,
¶ 33 We find instructive the reasoning of the appellate and supreme courts in
People v. Thomas
,
¶ 34 In
Thomas
, 198 Ill. 2d at 106,
¶ 35 The trial court suppressed the evidence of the drugs, finding that the officer's stopping of the car, blocking the defendant's path, constituted an unreasonable seizure.
Thomas
,
"Officer Melton was not trying to engage in the kind of personal intercourse between police officers and citizens that falls short of a seizure. He was trying to effect a forceful stop and detention. His use of the phrase "field interview" to describe his intent and design does not alter what he did in order to effect it. Nor does it change the investigative nature of that intent and design.
***
The method employed to fulfill this investigative purpose constituted more than a mere casual approach to engage in conversation. To give effect to his intent, Officer Melton had to chase after and find the defendant. Then he had to halt the defendant's movements. When he caught up to the defendant, he did not honk his horn and wave, or roll down his window and engage in conversation.
*924 *** Officer Melton maneuvered his squad car to effect an abrupt stop of a moving vehicle by cutting off the path ahead. This was clearly an effort to effect an investigatory stop and detention.
Contrary to the State's contention, Officer Melton's actions constituted a show of authority. While it is true that Officer Melton did not display a gun, did not utter a word, and did not physically touch the defendant, his action was sufficient to produce a feeling of freedom's restraint in an objectively reasonable person. Officer Melton sped past the defendant, made a sudden veer at a right angle to the defendant's travel route, and deployed his squad car in a manner designed to cut off the defendant's roadway. It would be quite reasonable for a motorist, or, in this case, a bicyclist, confronted with such police action to conclude that the officer wanted no further movement and expected submission. When a police officer suddenly obstructs continued movement by placing his squad car between a traveler and the road ahead, most travelers would feel compelled to stop and constrained to stay until they engaged further direction from the officer ." (Emphasis added.) Id. at 853-54,248 Ill.Dec. 724 ,734 N.E.2d 1015 .
¶ 36 The appellate court ultimately held, however, that because the defendant did not submit to the unreasonable seizure-he fled down an alley instead-he could not have been "seized" as a matter of law, as
California v. Hodari D.
,
¶ 37 Our supreme court "agree[d] with the appellate court that Officer Melton's initial conduct constituted an unwarranted investigatory stop and was constitutionally impermissible."
Thomas
, 198 Ill. 2d at 110,
" 'Had the defendant stopped when his path was obstructed, had he submitted to Officer Melton's show of authority, a seizure of the kind offensive to our constitution would have occurred. Officer Melton would have effected an investigatory stop absent the requisite degree of suspicion to support it. The stop would have constituted an unreasonable seizure of the defendant's person. However, Officer Melton's attempt to effect an unlawful stop did not implicate the fourth amendment because the defendant took flight and prevented it.'
We agree and so hold." Id. at 112,259 Ill.Dec. 838 ,759 N.E.2d 899 (quoting Thomas ,315 Ill. App. 3d at 857 ,248 Ill.Dec. 724 ,734 N.E.2d 1015 ).
¶ 38 There are some obvious differences between this case and Thomas -Respondent did not flee from the police but submitted to the show of police authority; Respondent was not suspected of criminal wrongdoing-but on the question of whether the officers' actions here constituted a seizure, Thomas is squarely applicable.
¶ 39 Here, the officers drove past Respondent on his bicycle and then quickly stopped just short of him, got out of the car, and faced him. Officer Ludwich testified that the vehicle, travelling eastbound like Respondent on his bike, passed Respondent and then "stopped just in front of him," "just east of him." At that point, the officers left the vehicle so "[Respondent] would ride directly to us." When the State, on cross-examination, asked if he or his partner approached Respondent, Ludwich said, "Actually, [Respondent] continued *925 travelling eastbound toward us, which was only ten feet possibly."
¶ 40 A reasonable, innocent person, riding a bike along a public roadway, seeing a vehicle stop "just in front of him" and positioned in his path of travel such that he "would ride directly to" that car, and then seeing two officers wearing badges on their vests quickly emerge from the vehicle and face him, could only come to one conclusion: "that the officer[s] wanted no further movement and expected submission."
Thomas
,
¶ 41 As in Thomas , we cannot accept the State's contention that what occurred here was a casual, "consensual" encounter not subject to the fourth amendment. This was not a low-key approach on a sidewalk for a consensual chat; Respondent's travel by bicycle was halted in the middle of the road by a vehicle that cut off his path of travel, with two officers immediately emerging from that car to address him.
¶ 42 We acknowledge the general rule that the police do not seize citizens when they approach them in public to ask a question. See
Florida v. Bostick,
¶ 43 " '[T]he critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.' "
People v. Lake
,
¶ 44 A lay person might stop a fellow citizen on the street and ask for directions, or ask them the time, or interact with that citizen for any number of reasons. But a lay person cannot stop a car in the middle of the road and get out, as if in a parking lot, to ask a question of the motorist or *926 bicyclist behind them. That action was an unquestionable show of police authority above and beyond ordinary social intercourse, and it would be perceived as such by any reasonable, innocent person. We are not suggesting that the officers did anything wrong, or that they abused their authority, but neither will we pretend that stopping their car in the middle of the road to speak with an oncoming bicyclist is the same thing as a casual approach of a citizen on the sidewalk. No reasonable, innocent person would have viewed their actions as anything but a show of police authority, indicating that the officers wanted to speak with Respondent, and they wanted to do so right at that moment. We reject the State's claim that this was a consensual encounter.
¶ 45 Indeed, we highly question whether Respondent even would have had a chance to consent, given the officers' testimony that they stopped the car "just in front of him," leaving him little time to have done anything other than stop the bike right in front of them-which was exactly how the officers designed the stop, by Ludwich's own admission.
¶ 46 True, as the State argues, the officers did not draw weapons, tackle him, or threaten Respondent. That was true in
Thomas
, too, but our supreme court still found that the officers' blocking of the defendant's path of travel by bike constituted a seizure.
Thomas
, 198 Ill. 2d at 110, 112,
¶ 47 While, as we already said above, our supreme court has noted that the absence of any of the four traditional
Mendenhall
factors is "highly instructive" (
Luedemann
,
¶ 48 Indeed, the U.S. Supreme Court, in determining whether the police seized a fleeing suspect, considered whether the officers "operated the car in an aggressive manner to block [the suspect's] course or otherwise control the direction or speed of his movement."
Michigan v. Chesternut
,
¶ 49 The Maryland Supreme Court made this very point in
Jones v. State
,
¶ 50 We are not suggesting that the facts of this case entirely mirror those in Jones . The vehicle there did not stop directly in front of the bicyclist's forward path or impede its movement at all, but on the other hand, the officer said something to the passing bicyclist that indicated that the officer wanted his attention. Our point here is simply that the manner in which the officers used their vehicle in this case is a factor that we are entitled to consider.
¶ 51 The State also argues that the vehicle in Thomas completely blocked the defendant's forward path, unlike here. True, the car in this case was not stopped at an angle, but it stopped in Respondent's direct path of travel and almost immediately in front of him, whereupon officers got out of the car to face the rapidly-approaching Respondent. Our analysis need not rise or fall on whether Respondent's path was completely, mostly, or partially obstructed. From an objective standpoint of the reasonable, innocent person, the officers had clearly gone to considerable effort to stop Respondent on his bike without advance notice-without first calling out to him and asking him to pull over, or signaling to him in any way before stopping the vehicle right in front of him and in his direct path, then emerging from the car to face him. Any reasonable person would have concluded that the officers were demanding his attention at that very moment.
¶ 52 And we would further note that the vehicle in
Thomas
did not block the defendant's immediate forward path-he had time to steer his bike to avoid the police vehicle, which is precisely what he did, fleeing down an alley on that bike before reaching the roadblock. See
Thomas
, 198 Ill. 2d at 106,
¶ 53 The State is also correct that Respondent cooperated once he was detained; he gave them his name and truthfully admitted he had a gun in his pocket. But the seizure had already occurred by then. The officers' actions are viewed at their inception. See
id.
at 109,
¶ 54 In addition to some differences between Thomas and this case we have just discussed above, the special concurrence further distinguishes Thomas , arguing at length that the motivations of the officers in Thomas were to stop a man they suspected had committed a crime, whereas here, "the only evidence regarding the officers' intentions showed that they were seeking to have a conversation with respondent as a potential witness to an unrelated crime, and that, if respondent did not consent to that interaction, he would have been free to leave." But the officer's subjective motivation, and his or her reason for stopping a citizen-suspicion of a crime, to ask a question, perhaps to perform a community caretaking function *928 - are irrelevant to the question of whether a seizure occurred.
¶ 55 In determining whether a seizure occurred, we view the actions of the officer and ask how a reasonable, innocent person would objectively perceive them-whether, "considering the totality of the circumstances, a reasonable person would believe he was not free to leave."
People v. Oliver
,
¶ 56 The reason
why
the officer stopped the citizen is the next question, assuming a seizure is found to have occurred; we proceed to ask whether the officer had justification to seize the citizen, to determine whether that seizure was reasonable.
People v. Brownlee
,
¶ 57 The special concurrence also suggests that we are taking liberties with the notion that the police vehicle's stop in front of Respondent on his bike was a seizure, because Respondent did not, himself, argue as much at the suppression hearing. The concurrence says that Respondent only argued that he was seized when the officers placed him on the vehicle after recovering the weapon. The record shows that Respondent did not so limit his argument; he argued in his written motion that "[a]t the point that the police stopped [Respondent] he was 'seized' for purposes of Fourth and Fourteenth Amendment analysis." So we disagree that Respondent never raised that argument below, and he obviously raises it before us. We find no forfeiture.
¶ 58 We hold that the officers seized Respondent when they stopped his bicycle in the middle of the street.
¶ 59 B.
¶ 60 The Constitution does not forbid seizures
per se
, only unreasonable seizures. U.S. Const., amend. IV ; Ill. Const. 1970, art. I, § 6. In the investigatory context,
Terry
is a narrow exception to the general rule that a citizen may not be detained without probable cause. That narrow exception typically requires a reasonable, articulable suspicion that the
person being detained
is involved in criminal activity. See
Terry
,
*929
Michigan v. Summers
,
¶ 61
Lidster
involved a police roadblock in Lombard, Illinois. A vehicle had killed a bicyclist in a hit-and-run incident. About a week later, with the crime still unsolved, the police set up a roadblock in that same area, at roughly the same time of night, as the hit-and-run incident, hoping to find motorists who might have information about it.
¶ 62 The Supreme Court agreed that a seizure occurred.
¶ 63 But the Court refused to apply a "rule of automatic unconstitutionality to brief, information-seeking highways stops" of this nature. "The fact that such stops normally lack individualized suspicion cannot by itself determine the constitutional outcome."
¶ 64 On the other hand, it did not follow that "the stop is automatically, or even presumptively, constitutional. It simply means that we must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances."
¶ 65 Given that the investigation involved a death, the Court found that the "relevant public concern was grave."
Id.
at 427,
*930
¶ 66 While
Lidster
involved a police roadblock, its holding and test have been applied in other contexts involving suspicionless detentions of potential witnesses. See,
e.g.
,
State v. Woldt
,
¶ 67 We believe that
Lidster
applies here as well. The Supreme Court gave several reasons for applying a reasonableness test to suspicionless police checkpoints, rather than a
per se
rule of unconstitutionality, all of which apply here. First, if "[t]he Fourth Amendment does not treat a motorist's car as his castle" (
Lidster
,
¶ 68 In light of Lidster , it would be inappropriate to impose a per se rule of unconstitutionality for the suspicionless roadway stop of a bicyclist who is believed to be a witness to a crime committed by someone else. As the Supreme Court did there, we instead apply a reasonableness test to the officers' conduct here.
¶ 69 Applying the reasonableness test from
Lidster
, we find the seizure here to have been reasonable. The investigation underway was a homicide, every bit as grave a concern as the vehicular death in
Lidster
,
¶ 70 The final factor is the severity of the interference with individual liberty. See
¶ 71 And on that question, we would have to give a grade of "incomplete." The officers' detention of Respondent for questioning was interrupted after the first question-asking Respondent his name-at which point Officer Ludwich became suspicious of the possible firearm in Respondent's pants pocket. It quickly devolved into a search and arrest. For what it's worth, Officer Ludwich testified without contradiction that his intention had been to ask Respondent if he would be willing to come to the police station for questioning, and that Respondent would have been free to decline that request and be on his way. Any way you view it, we cannot say that Respondent has carried his burden of showing that the initial detention, prior to the search, constituted a severe interference with his liberty.
¶ 72 Each of the three factors favors a finding of reasonableness. We thus hold that the traffic stop was a seizure, but a reasonable one.
¶ 73 C.
¶ 74 Because we hold that the officers complied with the fourth amendment in stopping Respondent, we turn to the question of the frisk that followed the stop.
¶ 75 A frisk for weapons, following a valid stop, must be based on a reasonable suspicion that the individual is armed and thus dangerous.
Terry
,
¶ 76 At the outset, we agree with the State that Respondent's reliance on our decision in
Harris
,
¶ 77 Besides
Harris
, Respondent relies on additional cases where this court has stated that a bulge in the defendant's clothing, by itself, does not create reasonable suspicion. See,
e.g.
,
People v. Surles
,
*932
People v. Byrd
,
¶ 78 The officer testified that, as he approached within about four feet of Respondent, he saw the silhouette of a handgun in Respondent's jeans. The trial court, on reconsideration of the suppression issue, accepted the officer's testimony. Indeed, the court's very basis for reversing its previous decision was that the court had believed that a .22 caliber was small-and thus unlikely to be observed inside a pants pocket-but after seeing the gun, the court realized it was bigger than it had thought, and thus it found the officer's testimony credible.
¶ 79 We review that credibility determination for manifest error.
Almond
,
¶ 80 We agree with the trial court that Officer Ludwich's observation of not merely a bulge, but the outline of a weapon, in Respondent's jeans was a specific and articulable fact that supported a reasonable suspicion that Respondent was armed.
¶ 81 The complicating factor here is that a
Terry
frisk usually requires two things: (1) a reasonable suspicion that the detainee is involved in criminal activity (thus justifying the stop) and (2) a reasonable suspicion that the individual is armed (thus justifying the frisk).
Terry
,
¶ 82 In the previous section of this opinion, we found the stop here constitutionally valid, as it was a reasonable seizure based on the officer's need to obtain information from a potential witness to a homicide. Even absent reasonable suspicion of criminal wrongdoing, the officers validly stopped Respondent. So the question becomes, during a valid but suspicionless seizure, if an officer develops a reasonable suspicion that the detainee is armed, can he conduct a protective search of that individual for weapons?
¶ 83 Initially, we note that the State, and some courts, have pointed to our supreme court's decision in
Colyar
,
¶ 84 The court in
Evans
,
¶ 85 The court in
People v. Slaymaker
,
¶ 86 We must respectfully disagree with these interpretations of
Colyar
, however, for the initial encounter in
Colyar
was neither a consensual encounter nor a community-caretaking stop unrelated to the investigation of crime. The supreme court made it clear, at least three separate times in the majority opinion, that the initial encounter with the occupants of the vehicle was a
Terry
stop. See
Colyar
,
¶ 87 A consensual encounter does not implicate the fourth amendment because the individual consents to questioning and is thus not seized.
Luedemann
,
¶ 88 To be sure, there was a dispute among the justices in
Colyar
about whether the defendant had, in fact, conceded that the encounter began as a valid
Terry
stop. The majority and the concurrence believed that the defendant had so conceded. See
*934
Colyar
,
¶ 89 So Colyar does not answer our question. However much the justices disagreed on the defendant's concession in that case, ultimately the decision merely stands for the proposition that, in the course of a valid Terry stop-that is, where officers have a reasonable suspicion of criminal activity justifying an initial detention-officers may conduct a reasonable search for weapons if they develop a reasonable belief that one of the detainees is armed. Our question is different.
¶ 90 Our question is whether, in the context of a suspicionless (but reasonable) seizure, the later development of a reasonable suspicion that the detainee is armed justifies a patdown of that individual. Though Justice Thomas pondered that very question in his concurrence (see id. ¶¶ 71-77 ), the majority did not reach that question. We do so now.
¶ 91 We believe the answer is yes. In the course of detaining an individual during a suspicionless but reasonable seizure, an officer may frisk the individual if the officer develops a reasonable suspicion that the individual is armed.
¶ 92 We draw this conclusion from the U.S. Supreme Court's decision in
Arizona v. Johnson
,
¶ 93 One officer instructed the driver to step out of the car.
¶ 94 The Supreme Court noted that the stop was a
Terry
stop, as are most stops of cars on the road.
¶ 95 The Supreme Court held, however, "[t]he police need not have, in addition, cause to believe that any
occupant
of the vehicle is involved in criminal activity." (Emphasis added.)
Id.
at 327,
¶ 96
Johnson
controls the outcome here. When a car is pulled over for a traffic offense, the passenger of the car is seized no less than the driver.
¶ 97 The fact that
Johnson
involved a vehicle with multiple occupants, whereas this case involves one person on a bike, does not suggest a different outcome. It is true that
Johnson
, relying on previous decisions, noted the unique risks that vehicle stops pose to officers-the lack of information about the occupants, the possibility they might employ violence to avoid detection of other unknown criminal conduct, the ability to hide weapons in many places-risks that are multiplied by the number of the occupants inside. See,
e.g.
,
Johnson
,
¶ 98 And we acknowledge that the stop of a single bicyclist does not pose the same risks, or at least not to the same magnitude, as the stop of a car with multiple occupants. Occupants of a vehicle are usually less visible to an officer than a bicyclist and have many more places to hide a weapon within the car.
¶ 99 But if the risks are less in the context of a stop of a bicyclist, they are not eliminated altogether. A bicyclist could have a weapon on his person, as Respondent did here. And bicycles sometimes have compartments that could hide a weapon. But more importantly, once we reach the point that an officer has developed a reasonable suspicion that the bicyclist is armed-as he did here-any distinction between a biker and a car full of people breaks down. A weapon in the hands of a bicyclist is no less a threat to officer safety than a weapon in the hands of a back-seat passenger.
¶ 100 Our holding does not give
carte blanche
to officers to randomly stop whomever they please and then, if they develop a suspicion that the individual is armed, to frisk that person. We emphasize that we have found here that officers had a valid, albeit suspicionless, basis for seizing Respondent in the first instance-before Officer Ludwich approached Respondent and observed the outline of a weapon in his jeans. That is no minor detail; without that valid basis for the initial stop, without a
reasonable
seizure having first taken place, any resulting frisk or other search would
*936
be invalid.
Harris
,
¶ 101 We also emphasize that our holding is limited to the context of this case: When officers effect a suspicionless but reasonable seizure, they may conduct a protective patdown for weapons if they have developed a reasonable suspicion that the individual they have seized is armed.
¶ 102 We do not address here other types of suspicionless encounters with police-"consensual encounters" (which are not seizures at all) or seizures effected pursuant to the non-investigatory "community caretaking" function concerning public safety or assistance. See
Luedemann
,
¶ 103 Respondent does not challenge the full search of Respondent that followed the frisk. Recall that, upon frisking Respondent, Officer Ludwich's suspicion that Respondent was armed was confirmed (or at least enhanced), at which point the officer asked Respondent what was in his pocket. Respondent admitted to having a gun. The officers then searched him and found the gun in that very pocket. Respondent has challenged the initial stop as well as the frisk, unsuccessfully in our eyes, but does not challenge the actual search. Having found against him on the arguments he has raised, we have no occasion to go further.
¶ 104 In sum, the officers seized Respondent when they stopped him in the middle of the street on his bike. Their seizure was reasonable, in that they targeted Respondent for questioning as a witness, not a suspect, in the most serious of crimes, a homicide. And once they had effected a reasonable seizure and only then developed a reasonable suspicion that Respondent was armed, the officers were entitled to conduct a protective patdown of Respondent for weapons.
¶ 105 D.
¶ 106 Respondent's final contention regarding the trial court's decision to deny his motion to suppress is that the court abused its discretion when it sua sponte ordered him to produce his jeans and examined the gun during the hearings on the State's motion to reconsider. The State responds that the trial court properly considered the size of the gun and the pants that Respondent wore on the day of the incident to ensure that justice was done.
¶ 107 As noted earlier, the basis for the State's motion to reconsider was that the court erred in its application of the law, and that a police officer is not required to ask questions before recovering a weapon. The State argued that the officer's reasonable belief that Respondent was armed was enough to allow for a protective frisk in the interest of officer safety.
¶ 108 In granting the State's motion to reconsider, the court reasoned as follows:
"I think I made a mistake in this case in my application of the law to the facts. It's true that [Respondent] was not committing a crime. He was not doing anything illegal. They were approaching him as a witness. But the officer testified that based on his experience, he immediately knew it was a gun. He saw a gun in the pants pocket of [Respondent's] jeans. And, you know, I was uncertain as to the size. He said what the size was, but I wasn't sure that a 22 caliber could be that big. And now I see that it is.
*937 He testified that it appeared to be a handgun, a silhouette of a handgun. He knew that based on his experience. He was within four feet of [Respondent]. This officer had been a police officer for 23 years. He's recovered hundreds of handguns. He was within four feet and getting closer when he saw this silhouette of a handgun, and as soon as he tapped it, he knew what it was.
So I'm reversing my ruling."
¶ 109 We review
de novo
the trial court's ruling on a motion to reconsider that is based only on the trial court's application of existing law.
People v. Pollitt
,
¶ 110 Respondent claims that the trial court erred in reopening the proof without a motion from the State. In requesting to view the pants Respondent wore at the time of the stop as well as the gun recovered by police, the court, in Respondent's view, "discarded its neutral robes and became an advocate for the State." And he insists that the trial court relied on a fact never introduced into evidence-that Respondent was wearing a certain kind of "skinny" jeans-in reaching his conclusion. We reject each of these arguments.
¶ 111 First, trial courts have the inherent power to correct their previous rulings.
People ex rel. Daley v. Crilly
,
¶ 112 Nor did the trial court assume the role of advocate. "As a general proposition it is never improper for a judge to aid in bringing out the truth in a fair and impartial manner."
People v. Franceschini
,
" 'It is the judge's duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice, but in so doing he must not forget the function of the judge and assume that of the advocate.' " Id. at 132 [169 N.E.2d 244 ]. (quoting People v. Lurie ,276 Ill. 630 , 641,115 N.E. 130 (1917) ).
¶ 113 In
Franceschini
, the defendant was convicted of burglary.
Id
. at 128,
¶ 114 As the court explained: "It is in the sound discretion of the trial court whether a case may be opened up for further evidence, and this discretion will not be interfered with except where it is clearly abused."
¶ 115 Here, the trial court wanted to see the gun and the pants to further test the credibility of Officer Ludwich's testimony that he was able to see the outline of the gun inside the pants pocket. The pants could not be produced, but the gun was. That additional evidence could have cut either way. It could have supported his previous skepticism of Ludwich's testimony. Instead, it had the opposite effect. The trial court stated that the gun was larger than it had originally thought, lending credence to the officer's testimony. But the fact that this new evidence hurt rather than helped Respondent does not mean that the court was on an "activist mission to find grounds to reverse." It means the court was on a mission to uncover the truth.
¶ 116 Finally, Respondent claims that, when the pants could not be produced, the trial court improperly "relied upon the officers' off-the-record comment that [Respondent] was wearing skinny jeans at his arrest to reverse itself," what Respondent deems "improper fact-finding" that "colored the court's perception of the case throughout the proceedings."
¶ 117 The record does not support that claim. The fact that the court wanted to view the pants indicates to us that it did not have a pre-existing opinion about them. The court never stated anything about Respondent's jeans in his factual findings and legal conclusions when granting the motion to reconsider. The court's off-handed, wry comment that Respondent "could 'wear his skinny jeans to the appellate court' " does not convince us that we should disregard the court's factual findings and find error.
¶ 118 The court did not abuse its discretion in reopening the proof, did not act as an advocate, and did not improperly rely on information outside the evidentiary process.
¶ 119 For all of these reasons, we affirm the trial court's denial of the motion to suppress.
¶ 120 II.
¶ 121 There are two remaining challenges in this appeal, one contested and one uncontested. The contested challenge is to the sufficiency of the evidence as to one of the two adjudications of delinquency for AUUW, the one regarding his possession of a firearm without a valid FOID card. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2016). Respondent does not challenge the sufficiency of his other AUUW adjudication. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2016). Nor does Respondent challenge his UPF adjudication on sufficiency grounds.
¶ 122 The other issue is uncontested. The parties agree that, based on the one-act, one-crime doctrine, Respondent's possession of one gun is subject to only one adjudication, not the three he sustained. See
People v. Johnson
,
¶ 123 The parties also agree that all three offenses are class 4 felonies with the same punishments, and thus it is impossible to differentiate which of these offenses is the more serious.
Cf.
720 ILCS 5/24-1.6(d)(1) (West 2016) with 720 ILCS 5/24-3.1(b) (West 2016). Thus, the parties agree that, rather than remand this matter to the trial court to determine which offense is the most serious-an impossible task-this court should vacate and merge the UPF and one of the AUUW convictions into the other AUUW adjudication. See,
e.g.
,
People v. Price
,
¶ 124 We agree with the parties that the UPF adjudication, and one of the AUUW adjudications, should be vacated and merged into the second AUUW adjudication. The parties have expressed no preference as to which of the AUUW adjudications to vacate. Legally, it makes no difference to Respondent.
¶ 125 So we will vacate and merge the UPF adjudication and the AUUW adjudication premised on section 24-1.6(a)(1), (a)(3)(C) (regarding the lack of a FOID card) into the remaining AUUW adjudication under section 24-1.6(a)(1), (a)(3)(I). Thus, it is unnecessary to reach the question of whether Respondent was proven guilty beyond a reasonable doubt of violating section 24-1.6(a)(1), (a)(3)(C). Rather than reverse that conviction, as Respondent requests, we will vacate it-for all practical purposes the same relief, but based on the one-act, one-crime rule.
¶ 126 III.
¶ 127 We affirm Respondent's adjudication of delinquency for AUUW under section 24-1.6(a)(1), (a)(3)(I) of the Criminal Code of 2012. We vacate Respondent's remaining adjudications under the one-act, one-crime rule.
¶ 128 Affirmed in part, vacated in part.
Justice Howse concurred in the judgment and opinion.
Justice McBride specially concurred, with opinion.
¶ 129 JUSTICE McBRIDE specially concurs.
¶ 130 Although I agree with the decision to affirm the circuit court's denial of the respondent's motion to suppress, I do not agree that respondent was seized when the police officers stopped their vehicle to question him as a possible witness to a homicide.
¶ 131 As I will discuss below, this case presents circumstances notably different from the majority of search and seizure cases because respondent here was not the subject of police suspicion when he was approached by the officers. The officers' purpose in engaging with respondent was not to gain information about respondent, but to have a conversation with him regarding information he could provide about an unrelated murder investigation.
¶ 132 As our supreme court has recognized, "the law clearly provides that a police officer does not violate the fourth amendment merely by approaching a person
*940
in public to ask questions if the person is willing to listen."
People v. Luedemann
,
¶ 133 To determine whether and when a person is seized, we must examine the circumstances surrounding the encounter.
¶ 134 The supreme court has stated that the following factors would be indicative of a seizure: (1) the threatening presence of several officers, (2) the display of a weapon by an officer, (3) some physical touching of the person, or (4) the use of language or tone compelling the individual to comply with the officer's request.
Luedemann
,
"the absence of [these] factors, while not necessarily conclusive, is highly instructive. If those factors are absent, that means that only one or two officers approached the defendant, they displayed no weapons, they did not touch the defendant, and they did not use any language or tone of voice indicating that compliance with their requests was compelled. Obviously, a seizure is much less likely to be found when officers approach a person in such an inoffensive manner." Id. at 554,306 Ill.Dec. 94 ,857 N.E.2d 187 .
¶ 135 With these concepts in mind, we turn to the circumstances provided by this case. The testimony presented at the pretrial hearing came not from respondent, but from a single witness, Chicago Police Officer Ludwich, who testified that he and his partner, Officer Rottman, were patrolling in an unmarked car and looking for respondent, whom they believed to be a potential witness to a homicide. The officers did not know the respondent, but they had his name and a photograph, and they were aware that he was about 17 years old and that he lived in the area they were patrolling. The officers were looking for respondent with the specific purpose of asking him if he would be willing to come to the police station to provide information as a possible witness. Officer Ludwich testified, however, that he had no intention of bringing respondent into the station unless he agreed.
¶ 136 When the officers saw respondent on a bicycle and determined that he appeared to match the photograph they had of the potential witness, they stopped their vehicle directly east and some 10 feet ahead of the path of respondent to confirm his identity by name. The officers-who were not in uniform but were wearing *941 vests, identifying badges, and name tags-stepped out of their vehicle. Officer Rottman asked respondent what his name was, and respondent replied that his name was Tyreke H. Respondent was described as "cooperative," and there was no evidence of a tone or language compelling the respondent to stop, and no evidence of physical touching or contact with Respondent at the time the officers initially approached.
¶ 137 Respondent was standing near the vehicle's driver's side door when Officer Ludwich saw a "bulge" of what appeared to be the "silhouette" of a gun in respondent's right front pants pocket. Moments later, the officer touched the object on the outside of respondent's clothing. The touching was described as a "tap" of respondent's pants pocket, and the officer inquired: "What's this?" Respondent acknowledged that it was a gun. Officer Ludwich testified that he then conducted a protective pat down, with respondent's hands on the driver's side of the car, and respondent was not free to leave.
¶ 138 The above described facts were undisputed, and respondent provided no contrary testimony of any kind surrounding the circumstances of the events leading up to his arrest.
¶ 139 Considering all of the factors in light of the testimony presented at the hearing on respondent's motion to suppress, the totality of the circumstances surrounding the officers' encounter with respondent, which the trial court heard and accepted as credible, supports only one conclusion-that respondent was not seized when the officer parked the squad car and walked up to respondent on the street. Like the hypothetical posed in
Luedemann
, which the supreme court described as an "inoffensive" approach that would be unlikely to constitute a seizure, the approach of respondent in this case involved "only one or two officers ***, [who] displayed no weapons, *** did not touch [respondent], and *** did not use any language or tone of voice indicating that compliance with their requests was compelled." See
Luedemann
,
¶ 140 Instead, it was only after the officers approached respondent for the sole purpose of asking him to accompany them to the police station as a potential witness, that Officer Ludwich made observations that immediately established a reasonable, articulable suspicion that respondent was armed with a firearm. Because of that reasonable, articulable suspicion, the officer inquired further, tapping on respondent's pocket and asking him what the object was. Based upon respondent's admission that the object was a gun, and upon the plain feel the officer had after tapping on the hard metallic object he believed was a gun, the officer properly recovered the weapon. Accordingly, the officer had a proper basis for a
Terry
stop, where "a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous."
People v. Colyar
,
¶ 141 To support his claim that he was immediately seized when the police car came to a stop, respondent relies primarily upon the Thomas decision. He repeatedly argues that the officers seized him because they "blocked his path," and "forced [him] to bring his bike to a stop to avoid hitting the car." Respondent contends that officers' actions here "are identical to the officers' actions in Thomas . The majority agrees that the Thomas decision is "squarely applicable" (see supra ¶ 38) because respondent "was halted in the middle of the road by a vehicle that abruptly cut off his path of travel, with two officers *942 immediately emerging from the car to address him" (see supra ¶ 41). I disagree. I find nothing in the record that would support respondent's characterization of the events leading up to his interaction with the officers. In my opinion, the majority's holding, which relies upon the respondent's unfounded representations, is unsupported by any testimony in the record. In fact, defense counsel in the pretrial proceedings did not even argue that the police officers blocked defendant's path with their squad car. Counsel argued that this was "a case of actually everyone doing what they're supposed to be doing"-that the police officers "were there to look for [respondent]" and that respondent was "cooperative with them." Counsel's position was that there was no basis for the officer's belief that the bulge was a gun and that defendant was seized when the officers "put [defendant] on the police car where he clearly would not have been able to leave."
¶ 142 Because counsel never argued that respondent was seized by the officers by stopping their squad car in his path of travel, the record is not properly developed for a review of this issue. The evidence elicited on how and where respondent came to a stop is scant, and the majority's decision to call this a seizure based on the limited record, expands Thomas beyond its envisioned parameters.
¶ 143 Based upon the circumstances testified to here, it is my opinion that these officers never blocked or physically positioned their vehicle to stop the forward path of respondent so that he had nowhere else to go but into the police vehicle. Although there was testimony that the police vehicle stopped near respondent, there was no evidence in the record that would support a finding that the police car was pulled or turned in front of respondent's bicycle. Instead, the record shows that when the police vehicle was stopped, it was east and some ten feet in front of respondent. Officer Ludwich testified that when the vehicle was stopped, respondent rode his bicycle right towards the driver's side of the officers' vehicle. He also testified that he walked around the back of the car, and continued around to the driver's side where respondent was located across from and near his partner, Officer Rottman. This testimony, in my opinion, further demonstrates that the path of respondent was not blocked by the police vehicle because respondent was not directly behind, but was alongside, the vehicle when Officer Ludwich approached him.
¶ 144 Unlike the circumstances presented here, the
Thomas
decision involved a police officer's clear effort to physically block and attempt to stop an individual riding on a bicycle by positioning the police squad directly "across" the defendant's path of travel.
People v. Thomas
,
¶ 145 Before reaching its ultimate holding, the supreme court pointed out that the officer's intent was to stop, detain, and interrogate the defendant based solely *943 upon a suspicion that fell far short of warranting any stop. Although the supreme court concluded the police officer's attempted road block would have been an unconstitutional seizure had the defendant submitted to the police authority, it went on to hold that the defendant's flight gave rise to a suspicion that justified investigatory stop and the subsequent police conduct in forcibly arresting the defendant was not constitutionally infirm.
¶ 146 The Thomas decision fails to support the analysis used by the majority to reach its conclusion as to when the seizure occurred in this case. Contrary to respondent's contentions, there was no testimony during these proceedings that respondent was forced to bring his bike to a stop to avoid hitting the police car or that the car was pulled into respondent's path. In fact, there was no testimony at all at the hearing on the motion to suppress as to when respondent got off his bicycle, or how or where he came to a stop.
¶ 147 As the majority recognizes, the Thomas court described the officer's actions in the following way:
"Officer Melton was not trying to engage in the kind of personal intercourse between police officers and citizens that falls short of a seizure. He was trying to effect a forceful stop and detention.
* * *
Officer Melton maneuvered his squad car to effect an abrupt stop of a moving vehicle by cutting off the path ahead. This was clearly an effort to effect an investigatory stop and detention.
*** Officer Melton sped past the defendant, made a sudden veer at a right angle to the defendant's travel route, and deployed his squad car in a manner designed to cut off the defendant's roadway." Supra ¶ 35
¶ 148 The officer's actions in Thomas , as described above, are nothing like the circumstances of this case. The officers here were not "trying to effect a forceful stop and detention." The only evidence regarding the officers' intentions showed that they were seeking to have a conversation with respondent as a potential witness to an unrelated crime, and that, if respondent did not consent to that interaction, he would have been free to leave. There was also no testimony that the officers "maneuvered [the] squad car to effect an abrupt stop of [respondent's bicycle] by cutting off the path ahead." To the contrary, the record shows that the officers were patrolling the area and using a photograph to try to identify and locate respondent, whom they did not know. This evidence demonstrates that the officer was not driving the police vehicle at a high rate of speed and instead was driving slowly and deliberately while attempting to make an identification. Likewise, there is also no evidence to show that the officers made a "sudden veer at a[n] *** angle" to respondent's travel route, "cut[ting] off [his] roadway." Instead, the testimony from Officer Ludwich established only that the officers parked 10 or so feet in front, and to the east, of respondent, as he was bicycling in the same direction.
¶ 149 If the record in this case showed that the officers here had "sped past" respondent, and "made a sudden veer" of the squad car, "maneuver[ing] [it] to effect an abrupt stop" of the respondent's bicycle, I would not hesitate to find that a seizure occurred. However, this is not such a case.
¶ 150 In sum, to conclude that a person is immediately "seized" when a police officer stops his vehicle 10 feet in front of that person on a public street for the purpose of inquiring of that person as a potential witness to a crime is not supported by well-settled precedent that allows the police to approach a person in public and ask questions if the person is willing to listen. See
*944
Luedemann
,
¶ 151 For these reasons, and not the analysis adopted by the majority, I would affirm the circuit court's order denying respondent's motion to suppress.
Both officers' names were spelled more than one way in the transcript.
We have characterized
Lidster
's holding as unanimous. The employment of a reasonableness test for suspicionless detentions of potential witnesses, rather than a
per se
rule of unconstitutionality, was indeed joined by all justices. Three justices dissented only from the decision to decide the reasonableness of the checkpoint, rather than remanding to the Illinois courts to conduct that test. See
id.
at 428,
Reference
- Full Case Name
- In RE TYREKE H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Tyreke H., Respondent-Appellant.)
- Cited By
- 1 case
- Status
- Unpublished