Police Arrest First Determine Licensure Later Reviewing Court Says Otherwise

People v. McMichaels, 2019 IL App (1st) 163053 (October). Episode 696 (Duration 16:31)

Another guy with a gun gets arrested just for having a gun.

Charges

Defendant was charged by indictment with one count of being an armed habitual criminal, two counts of unlawful possession of a weapon by a felon, and four counts of aggravated unlawful use of a weapon.

Conviction & Sentence

The trial court denied defendant’s motion and found him guilty of being an armed habitual criminal and unlawful possession of a weapon by a felon.

Following a hearing, the court merged the counts and sentenced defendant to eight years’ imprisonment for being an armed habitual criminal.

Defense Motion To Suppress

Defense counsel argued that the call to police, reporting someone with a firearm, was unreliable because nothing established the caller’s identity, motive, or basis for knowledge.

Counsel posited that the fact that officers noticed defendant wearing the same clothes as the person whom the caller described was insufficient corroboration for a search and seizure and that no probable cause existed because the officers did not observe a firearm until they searched defendant.

The Dispatch

The officers received a dispatch regarding “a male black with a black T-shirt, yellow shorts and dreadlocks in possession of a black handgun” near Ferdinand Street and Lamont Avenue.

The description matched a person the officers had seen there less than hour ago that same day. When the officers returned to the area, they observed defendant wearing the same clothes and standing with three other men.

Officer’s Approach

The officers parked 10 to 15 feet away, exited the vehicle, announced their office, and “asked to see all the individuals’s hands.”

The three men around defendant showed their hands, but defendant immediately placed one hand into his right short pockets and then began to turn away from police.

The officers approached defendant and again asked to see his hands, but he did not comply.

Police Grab Defendant

Seconds later, an officer grabbed defendant’s shoulder or upper arm. Defendant’s hand then broke free from his pocket and the officer noticed the butt and re-slide of a semiautomatic handgun protruding from the right pocket of his shorts.

The officer seized the firearm, which was loaded with seven live rounds, and defendant was handcuffed.

Defendant Makes A Statement

As officers walked defendant to their vehicle, he blurted out that he just had the gun for protection because he had been shot.

The Call To Police

The officers never spoke with the person who called the police to report an individual with a firearm and did not know the person’s identity.

Fourth Amendment

The fourth amendment to the United States Constitution and the Illinois Constitution of 1970 both “guarantee the right of individuals to be free from unreasonable searches and seizures.” People v. Colyar, 2013 IL 111835, ¶ 31; see U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, § 6.

Reasonable Suspicion & Terry Stops

Terry permits an officer to conduct a brief, investigatory stop of a person whom the officer reasonably believes has committed, or is about to, commit a crime. To justify a Terry stop, officers must be able to point to specific and articulable facts that, considered with the rational inferences therefrom, make the intrusion reasonable. Pursuant to Terry, “a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime.” People v. Close, 238 Ill. 2d 497, 505 (2010) (citing Terry, 392 U.S. at 22).

Further, “when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others, the officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon.” People v. Sorenson, 196 Ill. 2d 425, 432 (2001) (citing Terry, 392 U.S. at 24).

“The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior, and due weight must be given to the reasonable inferences the officer is entitled to draw from the facts in light of his experience.” People v. Thomas, 2019 IL App (1st) 170474, ¶ 19.

While reasonable suspicion is a less stringent standard than probable cause, an officer’s hunch or unparticularized suspicion is insufficient. Ultimately, in determining whether the officer had a reasonable suspicion, a court considers the totality of the circumstances known to the officer and views those facts from the perspective of a reasonable officer at the time of the stop.

When Is A Person Seized Under The Fourth Amendment?

Under the fourth amendment, “an individual is seized when an officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” (Internal quotation marks omitted.) People v. Harris, 228 Ill. 2d 222, 246 (2008).

Formulated another way, “a person has been seized when, considering the totality of the circumstances, a reasonable person would believe he was not free to leave.” People v. Oliver, 236 Ill. 2d 448, 456 (2010) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

In considering whether a seizure occurred, courts consider

(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 the individual to comply with the officer’s requests.

But A Person Has To Comply With A Show Of Force To Be Seized

The Mendenhall test “states a necessary, but not a sufficient, condition for seizure.” Thomas, 198 Ill. 2d at 111 (citing California v. Hodari D., 499 U.S. 621, 628 (1991)). This is because, “while an officer’s show of authority may amount to a seizure, defendant is not seized when he ignores a show of authority.” People v. Billingslea, 292 Ill. App. 3d 1026, 1030 (1997).

Thus, in Thomas, our supreme court explained:

The police may well convey a reasonable feeling of restraint, but that message does not amount to a seizure within the meaning of the fourth amendment until there is submission to it. A person must submit to a show of authority before that show of authority can constitute a seizure.

Thomas, 198 Ill. 2d at 112 (quoting People v. Thomas, 315 Ill. App. 3d 849, 857 (2000)).

When Was This Defendant Seized?

Here, defendant argues he was seized by the officers “immediately upon their arrival” at Ferdinand Street and Lamont Avenue, when they exited their vehicle and ordered him and the other men to “put their hands up.” According to defendant, the officers’ number and language showed compliance was mandatory, as further evidenced by the fact the other men displayed their hands and, when defendant did not, the officers grabbed him.

We disagree.

There was no evidence showed they displayed weapons or touched any of the men initially. Police touched defendant only after he refused to show them his hands. Between the moment the officers arrived and the time an officer grabbed defendant, defendant refused two requests to display his hands and, instead, placed his hand in his pocket and turned away. Under these circumstances, defendant did not submit to the officers’ authority upon their arrival. See Billingslea, 292 Ill. App. 3d at 1030 (finding the defendant “did not submit to the assertion of authority” when an officer “ordered him to keep his hands where he could see them” but defendant “turned away and reached for an object in his waistband”).

Consequently, defendant was not seized until police grabbed him. See Harris, 228 Ill. 2d at 246; People v. Evans, 2017 IL App (4th) 140672, ¶ 31 (the defendant “resisted an officer’s authority by continuing to place his hands back into his pockets” and “was not seized until the officer frisked him”).

Was The Terry Stop Justified?

Having determined when defendant was seized, our next inquiry is whether the officers were justified in conducting a Terry stop at that moment.

Based on the totality of the circumstances, we find the Terry stop was valid.

When the officer grabbed defendant, the officers had been told that a person matching defendant’s description was reportedly in possession of a firearm. Seconds earlier, defendant had twice refused the officers’ requests to show his hands and instead put his hand in his pocket and turned away. Defendant’s hand was still in his pocket when the officer grabbed him, and the officer was confronted with a legitimate safety concern.

Thus, although “an individual’s refusal to cooperate, without more, does not amount to reasonable suspicion” (Timmsen, 2016 IL 118181, ¶ 10), the officers’ decision to detain defendant resulted from more than just his noncompliance with their request to show his hands and was reasonable given the facts known to the officers at the relevant time.

Doesn’t Matter If The Tip Was Reliable Or Not

In reaching this conclusion, we observe that the reliability of the tip that resulted in the officers’ dispatch is not dispositive of the validity of the Terry stop. Defendant was not seized when the officers arrived on the scene in response to the tip but, rather, was seized when the officer grabbed him.

While only a few seconds passed between when the officers arrived and the moment the seizure occurred, in that time, the officers became aware of other circumstances, including defendant’s furtive conduct in response to their request to see his hands.

Thus, the tip was just one of several factors that, viewed from the perspective of a reasonable officer, made the Terry stop valid. See Sanders, 2013 IL App (1st) 102696, ¶ 14.

Once the officer noticed the firearm in plain sight, he knew that defendant was armed and possibly dangerous and, therefore, could clearly point to specific, articulable facts which reasonably warranted the intrusion involved in seizing the firearm. Consequently, the officers legally recovered the firearm, and defendant’s challenge to the Terry stop is without merit.

Defendant Says Even After They Saw The Gun They Couldn’t Arrest Him

Defendant contends, however, that the recovery of the firearm did not create probable cause for his arrest because mere possession of a firearm outside the home, without more, is not a crime and, at the time of his arrest, the officers did not know whether he lacked a concealed carry license or had felony convictions.

Other regulations include the requirement that, in order to possess a handgun, a person must carry a Firearm Owners Identification (FOID) card issued to him or her by the state police. 430 ILCS 65/2 . To carry a concealed firearm, a FOID cardholder also must possess a license under the Firearm Concealed Carry Act (430 ILCS 66/10, 25 ).

The Firearm Concealed Carry Act further provides that, if an officer initiates an investigative stop, upon the request of the officer, a licensee must disclose that he or she possesses a concealed firearm, present his or her license, and identify the firearm’s location. Id. § 10(h). 430 ILCS 66/10(h) (“upon the request of the officer the licensee *** shall disclose to the officer that he or she is in possession of a concealed firearm under this Act”)

Conceal & Carry Law Requires Disclosure

Pursuant to section 108-1.01 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/108-1.01), when an officer has stopped a person under the “Search During Temporary Questioning” provision in the Code for temporary questioning and “reasonably suspects that he or another is in danger of attack, he may search the person for weapons” and may take the weapon “until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned.”

As the officers did not inquire whether defendant had a concealed carry license or felony convictions before arresting him, defendant maintains he was arrested without probable cause.

Again, we disagree.

Applying these principles here, the totality of the circumstances when the officers arrested defendant suggested criminal activity.

The officers responded to a report that a person matching defendant’s three-point description possessed a firearm.
The officers asked defendant and three other men to show their hands.
The three other men complied, but defendant twice ignored the officers’ requests and, instead, placed his hand in his pocket and turned away.
At that point, the officers conducted a Terry stop, recovered a loaded firearm from defendant’s pocket, and handcuffed him.

While the officers did not inquire about his criminal history or firearm licenses at that moment, “the existence of a possible innocent explanation, like defendant’s possession of the required gun licenses, does not necessarily negate probable cause.” Thomas, 2019 IL App (1st) 170474, ¶ 39.

Instead, defendant’s repeated noncompliance with the officers’ requests, the fact he turned away and kept his hand in his pocket, and the discovery of the firearm in that pocket are all practical considerations justifying probable cause that he illegally possessed the firearm. See People v. Smith, 2015 IL App (1st) 131307, ¶ 29 (“furtive movements may be considered justification for performing a warrantless search when coupled with other circumstances tending to show probable cause,” even though “looks, gestures, and movements taken alone are insufficient”).

Yes We Cautioned Against Arrest First Determine Licensure Later

In Thomas, this court stated that, “under the current legal landscape, police cannot simply assume a person who possesses a firearm outside the home is involved in criminal activity.” Id. ¶ 40. We stated that the police “cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an individual for illegal possession without first identifying whether the individual has the necessary licenses.”

We cautioned “against ‘an arrest first, determine licensure later’ method of police patrol.”

Here, even though the officers did not inquire as to whether defendant lawfully possessed the gun, including whether he had a valid concealed carry license or felony convictions, before they arrested him, the police had probable cause to arrest defendant based on the totality of the circumstances.

Officer Safety Is A Real Concern

Further, we note that our admonition in Thomas against “ ‘arrest first, determine licensure later,’ ” must be balanced against officer safety. See id. Public policy demands that police must be safe in the performance of their duties. Officers here were acting on a citizen tip that there was a man

(1) with dreadlocks,
(2) in yellow shorts,
(3) in a black T-shirt, and
(4) in possession of a gun at a specific location.

Based on information that defendant had a gun and the combination of factors in this case, as previously described, the officers were justified in conducting a Terry stop when they stepped behind him and grabbed his shoulder. It was at this time, during the Terry stop, that they discovered he was in possession of a handgun.

Defendant Has An Obligation To Disclose

We recognize that the officers did not question defendant under section 108-1.01 of the Code or the Firearm Concealed Carry Act to determine whether he had a valid concealed carry license or felony convictions.

However, defendant also did not volunteer information to the officers. A reasonable person who was not committing a crime and was legally carrying would be expected to tell the officers he was licensed to have and carry a gun. When the officers initially asked defendant to see his hands, he could have notified them that he lawfully had a gun.

During the Terry stop, when the officers saw the gun protruding from defendant’s pocket, defendant had an opportunity to offer the information that he was properly licensed or otherwise in lawful possession. He did not. When the officers took the gun, defendant could have offered up license information, but once more, he did not. Defendant had multiple opportunities to protect his legitimate interests and volunteer the information that he was licensed. That would have been the end of it.

In the absence of such information and in combination with all other factors previously described, even though the officers did not inquire about whether defendant had a valid license, the officers were fully justified in detaining and arresting defendant before they could confirm his licensure and the lawfulness of the possession of the gun without his help.

This Was A Terry Stop Not An Arrest

Unlike in Horton, the officers initially conducted a Terry stop, which uncovered evidence supporting probable cause to arrest.

Accordingly, the officers’ initial seizure of defendant only needed to be justified by circumstances meeting the lower standard of reasonable suspicion as opposed to the more exacting standard of probable cause. Additionally, unlike in Horton, there were circumstances other than defendant’s flight to support defendant’s arrest.

Holding

The officers received a report that a person matching defendant’s description possessed a firearm and asked defendant and three other men to show their hands. Defendant repeatedly refused to comply, placed his hand in his pocket, and turned away. The officers were then justified to perform a Terry stop, and upon recovering a loaded firearm from defendant, they were justified in arresting him.

The circumstances of defendant’s stop and eventual arrest were not limited to defendant’s mere refusal to cooperate with the officers, as defendant suggests, and so Horton does not apply. In sum, the evidence showed that officers conducted a valid Terry stop, resulting in the discovery of a firearm, and that the officers had probable to cause to arrest defendant, based on all the surrounding circumstances.

Consequently, the trial court did not err in denying defendant’s motion to quash arrest and suppress evidence.

Affirmed.

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