In re Tyreke H., 2017 IL App (1st) 170406 (September). Episode 402 (Duration 10:10)

Kid on a bike is stopped because he’s a witness to a murder, then they see a gun in his pocket.

Charges

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).

Facts

Plain clothes officers driving in an unmarked car were looking for the the minor respondent because he was wanted for questioning in a homicide.

The officers saw an individual they believed to be Respondent riding a bicycle.

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.

Police notice a bulge in Respondent’s right front jeans pocket.

The Bulge

They get his name and Respondent cooperated, and made no furtive movements either before or during the stop. Officer Ludwich testified that, after 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. 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.

Silutoutte Of A Gun

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.”

Tap & Pat Down

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.”

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.

Issue

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.

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.

Mendenhall Factors

The Illinois Supreme Court has stated that “the absence of Mendenhall factors, while not necessarily conclusive, is highly instructive.” Luedemann, 222 Ill. 2d at 554.

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 the individual to comply with the officer’s requests. United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also Almond, 2015 IL 113817, ¶ 57.

“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.” Luedemann, 222 Ill. 2d at 554.

“Obviously, a seizure is much less likely to be found when officers approach a person in such an inoffensive manner.”

But the Mendenhall factors are not exhaustive, and a seizure may be found on the basis of other coercive police conduct similar to the Mendenhall factors.

Reasonable Innocent Person

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.”

The only conclusion a reasonable, innocent person could draw from the officers’ actions was that they were demanding to speak with him then and there. 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.

Not A Casual Chat

We acknowledge the general rule that the police do not seize citizens when they approach them in public to ask a question.

But there is a difference between approaching a pedestrian on the sidewalk and stopping a bicyclist in mid-travel down the street, by positioning a police vehicle directly in front of the bike’s forward path and immediately leaving the car to speak with the oncoming bicyclist.

This was kind of like stopping a car in traffic.

An encounter between a police officer and a civilian ‘is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse. This 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 p

But Was It Reasonable?

Our analysis need not rise or fall on whether Respondent’s path was completely, mostly, or partially obstructed.

The reason why the officer stopped the citizen is the next question.

Did the officer have justification to seize the citizen? 

The Constitution

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, 392 U.S. at 26-27.

Witnesses To Crime

But the U.S. Supreme Court has unanimously held that suspicionless detentions of citizens as potential witnesses to a crime, even if they are seizures, are not per se unconstitutional, but rather are subject to a reasonableness test. Illinois v. Lidster, 540 U.S. 419, 426 (2004).

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. See DUI Checkpoints, All Your Questions Answered and More!

Check Point Case Law

First, if “[t]he Fourth Amendment does not treat a motorist’s car as his castle” (Lidster, 540 U.S at 424), it most certainly does not treat a person’s bicycle as such.

Second, the Court’s rationale that “the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime” (id. at 425) is no less applicable to bicyclists than it is to motorists.

Finally, the Court noted that information seeking highway stops are “less likely to provoke anxiety or *** prove intrusive,” “are likely brief,” and are not likely to elicit self-incriminating information.

Seeking Information

We acknowledge that being stopped on a bicycle is more confrontational than being one of many drivers stopped at a roadside checkpoint.

But given that the ultimate goal of the officers is to seek information, not to investigate the bicyclist for commission of a crime, the likelihood of a self-incriminating confrontation is just as low as it would be for a driver; we do not see the intrusion or anxiety to be so great as to justify a different test for bicyclists than for drivers stopped at a checkpoint.

It’s A Reasonableness Test

As the Supreme Court did there, we instead apply a reasonableness test to the officers’ conduct here.

Applying the reasonableness test from Lidster, we find the seizure here to have been reasonable.

Analysis

The investigation underway was a homicide. And the stop in this case was far more tailored to advance the public’s interest in solving this homicide than the stop in Lidster.

There, all drivers were stopped; their connection to the bicyclist’s death was nothing more than the fact that, one week after that incident, they were on the same road, at the same time of night, as the bicyclist when he died. Yet that was sufficient tailoring for the Supreme Court.

Here, officers were targeting a specific person whose assistance was sought, and they believed (correctly) that they had found that specific person. The stop could not have been more narrowly tailored toward the public interest in solving this homicide.

Holding

We thus hold that the traffic stop was a seizure, but a reasonable one.

A bulge in the defendant’s clothing, by itself, does not create reasonable suspicion. But the evidence here went beyond testimony of seeing a mere bulge. 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.

Obviously, 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.

In Sum

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 pat down of Respondent for weapons.

See Also Kilo of Cocaine Suppressed: Investigative Hold Is Not Probable Cause