People v. Evans, 2017 IL App (4th) 140672 (March). Episode 327 (Duration 7:49)

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

Facts

Officer is responding to a call of a possible burglary.

He sees defendant walking.

He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.

Safety Concern

He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.

Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.

Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.

Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.

Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.

Issue

On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”

Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.

The central point of inquiry is at what point was defendant seized.

Mendenhall Factors

The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.

Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.

Officer’s Questions

This defendant’s path of travel was not blocked or interfered with in any way.

The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.

No Seizure

The initial encounter here was a consensual encounter.

None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.

Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.

First Request To Hands From Pockets

Defendant next argues he was seized at the moment the officer first requested­ he remove his hands from his pockets.

The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.

Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.

The fact defendant continued to place his hands back into his pockets shows defendant did not fully submit to the officer’s request.

Defendant did not appear to believe compliance was compulsory because he did not comply with the officer’s obvious wish.

Repeated Requests

Defendant opines the repeated requests he remove his hands from his pockets may have signaled he was suspected of wrongdoing, thus impacting his willingness to continue the encounter.

Defendant’s willingness to continue the conversation is evidenced by the fact he continued speaking to the officer even after the officer asked him several times to remove his hands from his pockets.

Further, the nature of the conversation indicated defendant was not a suspect or even a witness to the possible crime the officer was investigating.

The thrust of defendant’s claim is that the officer’s request for defendant to remove his hands from his pockets was a show of authority.

Even if the request was a show of authority, defendant resisted the authority by continuing to place his hands back into his pockets.

Right To Terminate

Further, the central question remains whether a reasonable person would have felt free to terminate the encounter.

The request for defendant to keep his hands visible did not prevent him from exercising his right to terminate the encounter, and a reasonable person in his place should not have believed that right had been extinguished by the request.

The touchstone of the fourth amendment is reasonableness, and the request to keep one’s hands visible is not an unreasonable restraint of liberty. It merely serves as a protection to both officer and citizen.

Terry

The court rejected defendant’s argument he was seized when the officer requested he remove his hands from his pockets and conclude defendant was not seized until the officer frisked him.

Under Terry, the officer may conduct an investigatory frisk for weapons upon reasonable suspicion the individual is armed and dangerous. See also 725 ILCS 5/107-14, & 725 ILCS 5/108-1.01. See also Special Illinois Search & Seizure Guide.

Armed & Dangerous

When an officer has a reasonable suspicion during an investigatory stop that the individual may be armed and dangerous, the officer is permitted to take necessary measures to determine whether the person is armed and to neutralize any threat of physical harm.

Police officers need not have reasonable suspicion of criminal activity to conduct a Terry frisk for weapons during a consensual encounter but, rather, need only have reasonable suspicion the citizen is armed and potentially dangerous.

No Suspicion of Crime Required

The fourth appellate district now holds that a police officer may conduct a Terry frisk during a consensual encounter upon developing reasonable suspicion the citizen is armed and dangerous; the officer need not develop reasonable suspicion of criminal activity. In such cases, the seizure and frisk will occur contemporaneously because a consensual encounter is, by definition, not a seizure.

Accordingly, a police officer must have reasonable suspicion the individual is armed and dangerous at the time of the frisk.

By so concluding, defendant’s arguments relating to the lack of reasonable suspicion defendant was involved in criminal activity became inapplicable. Thus, A Terry frisk during a consensual encounter must be predicated by reasonable suspicion the individual is armed with a weapon and, therefore, presently dangerous.

More Than a Hunch

To develop reasonable suspicion, the officer must have more than an “inarticulate hunch”; the officer must “point to specific and articulable facts which, taken together with rational inferences from those facts” demonstrate the suspicion is reasonable. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Officer’s Inferences

When reviewing the reasonableness of an officer’s conduct, it is appropriate to give due weight to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience.

This is an objective standard asking if an individual of reasonable caution would believe that the action was appropriate.

Holding

This is what the officer new:

He was alone with defendant at a late hour in an area he knew was a high-narcotics crime area. He was substantially smaller than defendant. Defendant was coming from a known drug house, in the officer’s experience individuals who deal with narcotics are often armed with a weapon.

Plus, Defendant acted peculiarly by continually placing his hands in his pockets, even after being asked him to remove his hands from his pockets several times defendant ultimately refused to remove his hands and asked why he needed to.

It was objectively reasonable for the officer to suspect defendant may have been armed with a weapon. This officer did not decide to frisk defendant based solely on one fact alone; he decided to frisk defendant based on the quantum of facts he learned while speaking to defendant, coupled with defendant’s refusal to keep his hands visible.

In sum, the court concluded the totality of the circumstances known to the officer at the time of the frisk warranted the reasonable suspicion defendant was armed and thus dangerous, thereby permitting him to conduct a Terry frisk.

See also People v. Winchester (Novembre 2016) for a case about how to label these motions.