People v. Richardson, 2017 IL App (1st) 130203-B (May). Episode 355 (Duration 6:52)

This pat down was justified after Defendant was fidgeting with his waistband and reaching for something after he was told to show them his hands.

Facts

Officers stop a car matching the general description of a stolen car.

Officer Akinbusuyi approached the vehicle from the passenger’s side while Officer Johnson approached the driver’s side.

Officer Johnson requested that the driver exit the vehicle after the driver was unable to produce a driver’s license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the defendant mumbling and reaching “into the center console with his right hand but with his left hand it was stuffing something in his waistband.”

Kind of Fishy

Officer Akinbusuyi testified that he found the defendant’s actions unusual, because “he had no reason to be doing that after I verbally told him let me see your hands.”

Officer Akinbusuyi testified that his “best judgment was that he was hiding something in his waistband.”

Based on his experience, he believed that “[i]t was mostly likely a weapon, drugs or something he didn’t want me to find.”

Defendant Ordered Out

Officer Akinbusuyi asked the defendant to exit the vehicle, and the defendant complied.

Officer Akinbusuyi handcuffed the defendant, “patted down the area” and discovered a handgun in the defendant’s waistband.

The officers subsequently searched the vehicle and found the victim’s culinary tools confirming it was the stolen car.

Issue

Defendant contends that his motion to suppress evidence and quash arrest should have been granted because the arresting officer’s pat-down search was unconstitutional.

He argues that the pat-down search was not justified pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because Officer Akinbusuyi lacked a reasonable belief that the defendant was armed and dangerous.

Law

Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; Ill. Const. 1970, art I., section 6. Courts have divided police-citizen encounters 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 of criminal activity; and
(3) encounters that involve no coercion or detention and thus do not implicate fourth amendment interests.

Terry Stop Pat Down

In Terry, the United States Supreme Court held “that a brief investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth amendment when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous.”

Terry further specifies when a pat-down search for weapons during an investigative stop is permissible if:

Terry, 392 U.S. at 27.

Reasonableness

“[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given *** to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”

Defendant argues that the circumstances described in that testimony did not justify a reasonable belief that the defendant was armed and dangerous. He asserts that, in reviewing the legality of the pat-down search, the court may not consider the reason why the police stopped the vehicle.

He claims: “Although the officer[s] may have suspected that the vehicle they pulled over may have been” the vehicle reported stolen 90 minutes earlier, “they had absolutely no proof of it at the time they pulled it over.”

He further argues that because he was “merely the passenger” and did not control the vehicle, “the status of the car plays no part in the search of [the defendant] by Officer Akinbusuyi.”

The defendant suggests that, to support a pat-down search, the officer needed to testify to a more definite belief that the defendant was armed.

Holding

Regardless of whether the officers had yet found proof that the vehicle was stolen, in considering the “totality of circumstances”, it was reasonable for Officer Akinbusuyi to take into account that the vehicle matched the description of a car stolen approximately 90 minutes earlier. See People v. Simpson, 2015 IL App (1st) 130303, ¶ 25 (finding that the Terry stop of a vehicle shortly after a reported home invasion was supported by the fact that the vehicle fit the victim’s description of the suspects’ car).

This fact could contribute to the officer’s reasonable suspicion that the occupants were involved in criminal activity and were potentially armed and dangerous.

More importantly, Officer Akinbusuyi testified that, after the driver was asked to exit the vehicle and the defendant

• was asked to show his hands,
• the defendant reached toward the center console with one hand
• and used his other hand to put something into his waistband.

Officer Akinbusuyi testified that based on his experience, he believed the defendant was attempting to hide something, “most likely a weapon, drugs or something he didn’t want me to find.”

The officer’s belief that the defendant was “mostly likely” hiding a weapon indicated a sufficient suspicion to warrant the pat-down search.

Certainty Not Required

We reiterate that an arresting officer need not be “certain” that the defendant is armed to have a reasonable suspicion, and that the officer may rely on “reasonable inferences in light of his experience.”

The defendants’ furtive movements —especially after being asked to keep his hands visible—could support the reasonable suspicion that the defendant was armed.

We conclude that the pat-down search was justified under the Terry standard, where

(1) the police officers encountered two individuals at night in a vehicle that matched the description of a recently stolen car and
(2) the defendant’s movements in the car supported a reasonable suspicion that he was armed or had access to a weapon in the vehicle.