People v. Qurash, 2017 IL App (1st) 143412 (March). Episode 325 (Duration 8:37)

Do the words, “Come Here”, alone constitute a seizure?

Facts

Police are driving and they see defendant walking.

When the officers were about 15 feet away from defendant, they stopped the police car, lowered the window, and said to defendant, “come here.”

Defendant immediately drops a bottle.

Drugs Discovered

Defendant testified that he walked right up to the police car like he was told. Police get out of the car and go get the bottle.

There are 26 separate bags of weed in there. They arrest defendant and in his pocket they find two more bottles with pills, a controlled substance (Diazepam).

Issue

On appeal defendant asks: Does the Statement “Come Here,” Uttered by a Police Officer to a Citizen, Result in a Seizure?

More specifically, the question was whether the trial court was manifestly erroneous in determining that the words “come here” were issued as a request.

Defendant contends that the court erred in denying his motion to quash because he was seized at the moment the officer said, “come here.”

According to defendant, the officers lacked a reasonable suspicion or probable cause for this seizure.

A Seizure

A person is seized when his freedom of movement is restrained by physical force or a show of authority. See more seizure and pat down cases.

The test is whether a reasonable person would conclude, in light of the totality of the circumstances, that he was not free to leave.

Following the United States Supreme Court’s decision in United States v. Mendenhall, 446 U.S. 544, 553 (1980), the Illinois Supreme Court adopted the Mendenhall plurality factors indicating a seizure when the person does not attempt to leave:

(1) the threatening presence of several officers,
(2) the display of a weapon by an officer,
(3) the physical touching of the person, and
(4) the use of language or tone of voice compelling the person to comply with the officer’s requests.

The absence of any of these factors is not dispositive but highly instructive on the issue of whether a seizure occurred.

Analysis

Here, it is undisputed that officers Gregory and Oppedisano did not exit their car, display any weapons, or physically touch defendant prior to stating, “come here.”

Thus, the only Mendenhall factor that is in play is the use of language or tone of voice compelling the person to comply.

The trial court, after listening to both the officers and defendant testify, made a finding of fact that officer Gregory’s statement, “come here,” was a request.

Defendant’s Words

The defendant corroborates that in his own testimony by saying he did see the officers, they asked him to come over to the car.

So the defendant doesn’t deny. In fact, they did just ask him.

They didn’t—they didn’t demand that he come here.

They didn’t pull out any weapons. They were in the car, asked him to come over to the car. The trial court then denied the motion to quash.

Officer’s Tone

The reviewing court said that nothing in the record suggests the trial court’s finding that the words “come here” were issued as a request was against the manifest weight of the evidence.

The officer’s tone of voice when he told defendant to “come here” is not possible to discern from this record.

No one testified to the officer’s tone when he said, “come here”; accordingly, this court, or for that matter any reviewing court, cannot determine his tone when he spoke to defendant.

Not The Trier of Fact

That determination is solely within the province of the trier of fact, who heard the witnesses testify.

It is not the function of the appellate court to reevaluate the evidence that was presented to the trial court and substitute our judgment for that of the trial court because we think a different tone may have been used.

The exact same words can convey a myriad of different meanings based upon the tone used.

Likewise, the officer did not consider the phrase “come here” to be unambiguously or per se compulsory in nature.

Holding

An officer calling a person over to the officer does not by itself necessarily constitute a seizure.

Listening to the language and tone used by all participants to the interaction and then deciding what was meant by the statement, what the speaker intended, and what the listener gleaned from the statement are functions of the trial court.

Trial courts are required to listen to all of the evidence and make findings of fact based on what they have heard, including whether “come here” was meant and received as a request.

Here, the court determined the words “come here” were a request, and there is nothing in the record suggesting that determination was against the manifest weight of the evidence.

The fact that a person knows that a police officer is a police officer when conversing has never been suggested as a factor that courts consider as particularly significant at all. If it were, most conversations between a citizen walking alone and an officer would become seizures. Based on the foregoing, the trial court did not err by denying defendant’s motion to quash arrest and suppress evidence.

See Also…

See also People v. Williams Episode 219 – There it was clear defendant was not free to leave, both testified to that effect, one cop got out of the car as well.

See the dissent in this case for a strong counter argument. To a man walking down the street, alone at night, in a high-crime neighborhood, when two officers stopped their car in the middle of the street and one of them said, “Come here,” any reasonable person would believe that he was required to comply with that directive—that he was not free to leave.