In re: Mario T.

FIRST DIVISION
SEPTEMBER 28, 2007

No. 1-05-3499

In re MARIO T., a Minor ) Appeal from the
(The People of The State OF Illinois, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
)
v. ) No. 05 JD 4426
)
Mario T., ) Honorable
) Lori M. Wolfson,
Respondent-Appellant). ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

Following a hearing, the respondent Mario T. was adjudicated

delinquent based on his possession of cocaine and cannabis, and

sentenced to one year's probation. On appeal, the respondent

contends that the trial court erred in denying his pretrial

motion to quash arrest and suppress evidence. We agree and

reverse.

BACKGROUND

Prior to the adjudicatory hearing, the respondent filed a

motion to quash arrest and suppress evidence. The respondent

alleged that the police lacked justification for a protective

pat-down search that resulted in the recovery of illegal drugs.
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At the suppression hearing, Chicago police officer Hickey

testified that at 8 p.m. on July 18, 2005, she and her partner

went to 2964 S. State Street in response to a radio call that

three males were breaking into a vacant unit on the second floor

of the building. The officers proceeded to the second floor by

separate stairways to investigate. Upon reaching the second

floor of the six-story Chicago Housing Authority building,

Officer Hickey and her partner observed four males "loitering"1

in the hallway.

Officer Hickey testified that after observing the group for

a "few seconds," she decided to conduct a field interview to

determine "if they lived in the vicinity or in the building."

Officer Hickey learned that they did not live in the 2964

building and that the respondent lived in apartment 406 of the

2940 S. State building. Fearing for her safety, Officer Hickey

"performed a protective pat-down" by feeling around the

respondent's waistline and pocket to ensure that he was unarmed.

As she felt his front pocket, Officer Hickey "felt several small

1
We take the officer's testimony of the group's

"loitering" in the hallway as being descriptive of their activity

and not suggestive of any criminal acts on their part, especially

where neither the State nor the trial court expressed reliance on

the use of that word.

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rock like objects." When she asked the respondent what it was,

the respondent told her it was "rocks." Officer Hickey

understood "rocks" to be crack cocaine. She then removed 26

rocks of suspected crack cocaine from the respondent's pocket,

placed him into custody, and performed a second custodial search

which revealed four Ziplock baggies of suspected marijuana.

Officer Hickey testified that she feared for her safety

because the 2964 building is known as an area of high narcotics

and gang activity and, in her experience, weapons are often

associated with drug offenses. Officer Hickey testified that she

had been a Chicago police officer for five years and had made 50

to 100 narcotics arrests. She had made 10 to 20 arrests at this

address. She estimated she had made 10 to 20 arrests where both

drugs and weapons were involved.

Regarding the timing of the pat-down in relation to the

field interview, Officer Hickey testified "Yeah, after I spoke

with him, yes, I patted him down while I was speaking with him."

The respondent was cooperative; he did not attempt to run away

nor did he make any threatening gestures.

The respondent testified that he was on his way to his

sister's apartment on the fifth floor of the 2964 S. State Street

building when police stopped him and his three friends on the

second floor. The respondent said that the police "put us on the

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wall and went in our pockets" and found "weed and rocks" in his

pocket. The respondent testified that he told the police at the

beginning of the encounter that he was on his way to visit his

sister.

In support of the motion, defense counsel argued: "Under

the State's Attorney's theory, then everyone that lives there at

any point is subject[] to a reasonable search and seizure by the

officers because going by that theory, anyone that lives in that

area is under suspicion based on the fact that they simply live

there."

As to its reasoning for denying the respondent's motion to

quash arrest and suppress evidence, the trial court stated:

"[Based] on the officer's experience and

based on the circumstances, the circumstances

being two officer[s] alone in a hallway with

four males. The circumstances being the

experience that this officer has regarding

drugs and investigations in areas where drugs

are prevalent, the officer's experience with

guns, the [Terry] analysis and search

analysis is not a two-prong analysis, it's

three-prong analysis of whether [there's]

sufficient basis for the stop. Second,

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whether there's a sufficient basis for a

limited search. And third, whether there's a

sufficient basis for a weapons frisk. I

believe it was a limited search on the

officer's reasonable belief that they could

be in danger. The articulated facts that

made her concern[ed] for her safety ***, a

limited search to determine whether the minor

had any weapons [by] which she could be

harmed. * * * I do believe that she had a

right to make a limited search [under] the

circumstances of the case ***."

An adjudicatory hearing ensued wherein the parties

stipulated to the evidence presented at the suppression hearing.

The parties also stipulated that Nancy McDonagh, a forensic

chemist with the Illinois State Police crime lab, would testify

that the recovered items tested positive for cocaine and

cannabis. She estimated the cocaine weighed 15 grams and the

cannabis weighed .5 grams. The parties further stipulated that a

proper chain of custody was maintained at all times. The court

found the respondent delinquent and sentenced him to probation

for one year. The respondent renewed his motion to quash arrest

and suppress evidence posttrial, which the court denied.

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ANALYSIS

A. Initial Encounter

On appeal, the respondent concedes that the initial

encounter was lawful, but contends that the subsequent search was

not. The State contends that based on the respondent's

concession that the "stop" was lawful, we need only examine the

subsequent frisk to determine whether the officer's action was

justified. While we agree that the initial encounter between the

respondent and the officers was lawful, this is so because it was

not a "stop" under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,

88 S. Ct. 1868 (1968). Rather, it was a "third tier" encounter

between officers and citizens involving no coercion or detention

and hence no implication of fourth amendment interests. See

People v. Luedemann, 222 Ill. 2d 530, 544, 857 N.E.2d 187 (2006)

(three tiers of police-citizen encounters: (1) arrests, requiring

probable cause; (2) Terry "stops," requiring reasonable,

articulable suspicion of criminal activity; and (3) encounters

without "coercion or detention and thus do not implicate fourth

amendment interests"). Officer Hickey testified that after

viewing the respondent and his companions for a "few seconds,"

she and her partner approached the respondent for a "field

interview." According to Officer Hickey her intent in speaking

with the group was to determine "if they lived in the vicinity or

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in the building." Thus, it does not appear that the purpose in

conducting the field interview was to conduct a forceful stop.

At its inception, the field interview did not involve coercion or

detention. See People v. Thomas, 315 Ill. App. 3d, 849, 853, 734

N.E.2d 1015 (2000), aff'd 198 Ill. 2d 103, 759 N.E.2d 899 (2001)

(officer's "intent and design" in encounter with citizen gives

meaning to the term "field interview").

However, sometime in the course of speaking to the

respondent, Officer Hickey patted him down, which resulted in the

discovery of the cocaine. Once Officer Hickey began the

protective pat-down, it changed the fundamental nature of the

encounter from a consensual one into a full-blown Terry stop. See

generally People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260

(2003). Thus, the "stop" and the "frisk" occurred

simultaneously. See Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d

254, 120 S. Ct. 1375 (2000); People v. F.J., 315 Ill. App. 3d

1053, 734 N.E.2d 1007 (2000); In re S.V., 326 Ill. App. 3d 678,

761 N.E.2d 248 (2001). We analyze the "stop and frisk" from the

point of the pat-down to determine whether the police action was

justified under Terry.

B. Standard of Review

Mixed questions of law and fact are presented upon review of

an order denying the respondent's motion to quash arrest and

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suppress evidence. People v. Pitman, 211 Ill. 2d 502, 512, 813

N.E.2d 93 (2004). We will not disturb the trial court's findings

of historical fact unless they are against the manifest weight of

the evidence. Pitman, 211 Ill. 2d at 512. With the trial

court's findings of historical fact in mind, we review de novo

the trial court's ultimate legal ruling as to whether suppression

is warranted. Pitman, 211 Ill. 2d at 512.

The respondent contends that because he does not challenge

the substance of Officer Hickey's testimony, this case presents a

legal rather than a factual question, and the standard of review

should be de novo, citing People v. Dilworth, 169 Ill. 2d 195,

201, 661 N.E.2d 310 (1996). However, Dilworth was decided before

our supreme announced its decision in People v. Sorenson, 196

Ill. 2d 425, 430-31, 752 N.E.2d 1078 (2001), to follow the

federal standards set out in Ornelas v. United States, 517 U.S.

690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). "[W]e will

accord great deference to the trial court's factual findings, and

we well reverse those findings only if they are against the

manifest weight of the evidence; however, we will review de novo

the ultimate question of the defendant's legal challenge to the

denial of his motion to suppress." Sorenson, 196 Ill. 2d at 431.

While we question whether the application of either standard

of review as to the historical facts would make any difference in

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the disposition we reach, we see no reason to apply a standard of

review other than manifest weight of the evidence even where the

testimony in the State's case is essentially uncontested on

appeal. This we believe is consistent with the deference to be

accorded to the trial court's findings reviewed in light of the

trial court's ultimate determination denying the respondent's

motion. Our focus instead is on the legal question of the

justification of the stop and frisk so as to warrant the denial

of the respondent's motion to suppress, a ruling we review de

novo. Independent appellate review of the ultimate decision to

deny relief is appropriate, at least in part, because "'de novo

review tends to unify precedent and will come closer to providing

law enforcement officers with a defined "set of rules which, in

most instances, makes it possible to reach a correct

determination beforehand as to whether an invasion of privacy is

justified in the interest of law enforcement."'" In re G.O., 191

Ill. 2d 37, 47, 727 N.E.2d 1003 (2000), quoting Ornelas, 517 U.S.

at 697-98, 134 L. Ed. 2d at 919-20, 116 S. Ct. at 1662, quoting

New York v. Belton, 453 U.S. 454, 458, 69 L. Ed. 2d 768, 773, 101

S. Ct. 2860, 2863 (1981). "A ruling admitting evidence in a

criminal trial, we recognize, has the necessary effect of

legitimizing the conduct which produced the evidence, while an

application of the exclusionary rule withholds the constitutional

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imprimatur." Terry v. Ohio, 392 U.S. at 13, 20 L. Ed. 2d at 901,

88 S. Ct. at 1875. In this regard, whether the motion should

have been granted necessarily turns on a reviewing court's "own

assessment of the facts in relation to the issues presented and

may draw its own conclusions when deciding what relief should be

granted." Pitman, 211 Ill. 2d at 512.

C. Stop and Frisk

At the start of the pat-down, it seems clear that what

started as a consensual encounter was converted into a "stop and

frisk" as such an encounter has become known since Terry v. Ohio,

392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). To justify

the protective pat-down by Officer Hickey, the State asserts: "A

reasonably prudent person who found himself outnumbered by

individuals found loitering in the hallway of a building known

for narcotics, weapons and gangs on the floor where there was a

recent report of individuals breaking into an apartment and the

loitering individuals did not live in the building would have

believed he was in danger." Thus, the State relies upon five

factors to justify the police action in this case: (1) the

officers were outnumbered; (2) the building was a high crime and

gang activity area; (3) the recent report of criminal activity;

(4) the respondent did not live in the building; and (5) the

stated fear of Officer Hickey for her safety based on the

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cumulative effect of those factors. While the stop and frisk

occurred simultaneously, the respondent only raises a challenge

to the legality of the "frisk." We therefore only examine the

cited factors in the context of the lawfulness of the search.

See People v. Sorenson, 196 Ill. 2d 425, 752 N.E.2d 1078 (2001)

(challenge to frisk only); People v. Galvin, 127 Ill. 2d 153,

164, 535 N.E.2d 837 (1989) (stop valid, search not valid); People

v. Rivera, 272 Ill. App. 3d 502, 506-07, 650 N.E.2dd 1084 (1995)

(stop justified, search not justified). We set out the full

circumstances of the respondent's seizure and search as part of

the totality of the circumstances that was presented to the trial

court.

Burden of Proof

Before we discuss the factors cited by the State in support

of the trial court's denial of the suppression motion, it is

important to establish the respective burdens in the context of a

Terry challenge.

At the suppression hearing, the respondent was called to

establish his prima facie case that he was doing nothing unlawful

at the time he was stopped and frisked. This he successfully did

as the trial court denied the State's motion for a directed

finding after the respondent testified. "The burden of

production then shifted to the State to provide the specific and

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articulable facts from which the officer reasonably inferred that

[the minor] was involved in criminal activity." People v. F.J.,

315 Ill. App. 3d at 1057. In other words, "[o]nce a defendant

challenges a warrantless search, it becomes the State's burden to

show that the search" is constitutional. People v. Rushing, 272

Ill. App. 3d 387, 390, 649 N.E.2d 609 (1995). "[S]earches

conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth

Amendment - subject only to a few specifically established and

well-delineated exceptions." Katz v. United States, 389 U.S.

347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514 (1967).

" '[T]he burden is on those seeking the exemption to show the

need for it.' " Coolidge v. New Hampshire, 403 U.S. 443, 455, 29

L. Ed. 2d 564, 576, 91 S. Ct. 2022, 2032 (1971) quoting United

States v. Jeffers, 342 U.S. 48, 51, 96 L. Ed. 59, 64, 72 S. Ct

93, 95 (1951). One such exception "is the pat-down search

recognized by the Supreme Court in Terry v. Ohio, 392 U.S.1, 20

L. Ed. 2d 889, 88 S. Ct. 1868 (1968)." People v. Moss, 217 Ill.

2d 511, 518, 842 N.E.2d 699 (2005). Thus, it was the State's

burden to justify the pat-down search of the respondent.

1. The Radio Call

The State first sought to justify the pat-down search by

revealing why the officers were at the location. The State

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elicited from Officer Hickey that she and her partner were at

that location based on a radio call regarding an attempted

burglary by four males on the second floor of the building.

Based on the record before us, the radio call did not contain any

description of the individuals involved. There was no evidence

adduced regarding when the information was provided to the police

in relation to when the radio call was sent to the investigating

officers. The record is also barren of any evidence that the

officers upon arriving on the second floor conducted any

investigation to determine the accuracy of the radio call. No

testimony was elicited regarding, for example, an apartment door

being ajar, pry marks on an entry door, or any other indication

that a force was applied to any of the second-floor unit doors to

gain entry. In other words, nothing Officer Hickey observed

provided a reason to suspect the respondent and his companions

were involved in any attempted break-in of a vacant second-floor

unit.

Whether the radio call was based on information by a private

citizen that identified himself or herself, or a purely anonymous

call, whose reliability may be questioned by its very anonymity,

we do not know. In fact, based on the record before us, we do

not know whether there was any evidence of criminal activity

suggesting an attempted break-in beyond the information contained

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in the call itself.2

Nevertheless, whether the broadcast was "anonymous" as that

term is used in search and seizure law,3 we need not determine

because the contention of the defendant is not with his initial

stop but with the pat-down for weapons that occurred. In that

context, although we may question whether anything more than an

anonymous report served as the basis for the officer's stop at

the point she began the pat-down, we need only determine whether

there was justification for the pat-down itself under Terry. As

the radio call did not contain any information to suggest that

the individuals allegedly involved in the attempted break-in

posed a threat to the responding officers, the radio call,

itself, does not provide any basis to reasonably suspect that

2
This leads us to wonder whether the call was based on

observed conduct suggesting criminal activity or simply as a

means of extracting the young men from a place where they were

not wanted to the extent they were the subject of the call.
3
See Florida v. J.L., 529 U.S. 266, 275, 146 L. Ed. 2d 254,

263, 120 S. Ct. 1375, 1381 (2000) (Kennedy, J., concurring) ("If

the telephone call is truly anonymous, the informant has not

placed his credibility at risk and can lie with impunity. The

reviewing court cannot judge the credibility of the informant and

the risk of fabrication becomes unacceptable").

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Officer Hickey or her partner was in danger of attack upon

encountering the respondent and his companions so as to warrant

the search of the respondent's person for weapons.4 See People

v. Galvin, 127 Ill. 2d at 173 (no legal presumption that a

burglary suspect is armed and dangerous); 725 ILCS 5/108-1.01

(West 2004) (authorizing a Terry "frisk" based on reasonable

suspicion of danger of attack). We also note that based on the

findings articulated by the trial court, it appears the trial

court made no finding that the radio call that brought the

officers to the 2964 building provided anything more than a

4
This situation must be distinguished from a situation

where the police officer testifies that a suspect aroused her

suspicion based on her observations of the suspect, and so

justifies a stop and frisk. In the latter case, "the courts can

weigh the officer's credibility and admit evidence seized

pursuant to the frisk even if no one, aside from the officer and

the defendant themselves, was present or observed the seizure."

Florida v. J.L., 529 U.S. 266, 274, 146 L. Ed. 2d 254, 263, 120

S. Ct. 1375, 1381 (2000) (Kennedy, J., concurring). However,

Officer Hickey did not testify to anything the respondent did to

arouse her suspicion, except perhaps being present on the second

floor.

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reason for their presence. The trial court made no finding of

"criminal activity afoot" as the State argued during the motion

proceedings. Rather, the trial court's ultimate decision to find

the limited search of the respondent to be justified was based on

the officer's drug arrest experience in the building, the

unassailable connection between drugs and weapons, and,

apparently, her stated "fear" of harm in the presence of four

males.

As we noted above, there was no testimony elicited from

Officer Hickey regarding any investigation to confirm an

attempted break-in. Thus, in terms of the absence of evidence of

an actual crime, this case is not unlike People v. Flowers, 179

Ill. 2d 257, 688 N.E.2d 626 (1997). In Flowers, the police

stopped the defendant because they were investigating a

"'possible burglary.'" Flowers, 179 Ill. 2d at 261. The

defendant in Flowers was frisked because, as the appellate court

observed, "in this society," the investigating officer's

"caution" was warranted. Flowers, 179 Ill. 2d at 261. In

assessing whether the frisk for weapons was justified under

Terry, the supreme court noted, "[A]t the time defendant was

stopped, [the investigating officers] had already investigated

and found no evidence that the possible crime reported by the

anonymous caller had been committed or attempted." Flowers, 179

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Ill. 2d at 265. See People v. Sorenson, 196 Ill. 2d at 437 ("By

the time of the frisk in Flowers, the officers had already

investigated the report of a possible crime and had determined

that no crime had occurred").

Here, the situation is similar to that present in Flowers in

that there is nothing in the record to indicate that any

investigation conducted by Officer Hickey and her partner

revealed "evidence that the possible crime reported by the ***

caller had been committed or attempted." Flowers, 179 Ill. 2d at

265. We see no reason to support treating a lack of

investigation by police more favorably than an investigation that

fails to disclose that a crime has occurred. But, because our

holding turns on the search of the respondent rather than on the

justification for the stop, we examine the other factors to

determine whether they support the weapons frisk of the

respondent.

2. High Crime Area

Officer Hickey's testimony regarding her experience of many

prior arrests in the building (of course, not involving the

respondent or his companions) added little to any particularized

threat posed by the respondent and his companions. While Officer

Hickey testified that she had made numerous drug arrests in the

2964 building, many of which involved persons with weapons, as

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defense counsel made clear in her questioning, Officer Hickey did

not "go there specifically for any type of narcotics

surveillance." See People v. Rivera, 272 Ill. App. 3d 502, 506,

650 N.E.2d 1084 (1995) (claim that "narcotic arrests often ***

involve weapons" rejected as sufficient to automatically justify

a frisk). Nor did Officer Hickey testify to observing any

behavior by the respondent or his companions to arouse her

suspicion as to possible narcotics trafficking. In short, the

respondent's presence in the 2964 building (even if properly

characterized as a high narcotics area), was no different from

the presence of others the officers may have encountered in the

building. Officer Hickey's experience that the 2964 building was

a "high crime area," while providing a basis for her heightened

caution, by itself, is an insufficient basis for a reasonable

suspicion. Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d

570, 576, 120 S. Ct. 673, 676 (2000) ("An individual's presence

in an area of expected criminal activity, standing alone, is not

enough to support a reasonable, particularized suspicion that the

person is committing a crime"); People v. Moorman, 369 Ill. App.

3d 187, 193, 859 N.E.2d 1105 (2006). If the respondent's

presence in a building, where narcotics trafficking may be high,

does not provide a reasonable basis to support an inference that

criminal activity is afoot, it necessarily follows that his

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presence in such a high narcotics area provides no basis for a

Terry search. See People v F.J., 315 Ill. App. 3d at 1059-60

(absent facts to warrant a stop, protective search also lacks a

constitutionally sufficient basis).

3. Respondent Not a Resident of 2964 Building

There is no question that the respondent did not reside at

the 2964 building. The respondent testified that he and his

companions were on their way to visit his sister, who resided on

the fifth floor of the 2964 building. No contrary information

was presented. Officer Hickey never testified that the

respondent did not inform her that he was on his way to his

sister's apartment. Consequently, there is no conflict between

the testimony of the respondent and Officer Hickey on this point.

Officer Hickey was correct that the respondent did not reside in

the building, but there is nothing to call into question the

respondent's statement that his sister lived in that building and

he and his companions were on their way there to visit. Our own

assessment of this fact in relation to the issue before us leads

us to conclude that it added little to the claimed justification

of the weapons frisk on the respondent. See Pitman, 211 Ill. 2d

at 512 (a reviewing court is free to make its own assessment of

the facts in relation to the issues presented).

4. Officers Outnumbered

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Being outnumbered is a factor to consider in assessing the

safety concerns of an officer. See Sorenson, 196 Ill. 2d at 437.

However, more is required than merely counting heads. An officer

must "reasonably suspect[] that he *** is in danger of attack,

[before] he may search the person for weapons." 725 ILCS 5/108-

1.01 (West 2004). In Sorenson, the officer explained that he

faced three occupants of a vehicle, on a dark and isolated road;

the defendant was seen entering and quickly exiting a known drug

house and posed the "quickest threat" to the officer; and

"persons involved with illegal drugs are known to carry weapons."

Sorenson, 196 Ill. 2d at 437. No similar circumstances are

present in this case.

Even from the position that the officers may have been

justified in conducting a Terry stop of the respondent based on

(1) the radio call of an attempted break-in, (2) his presence on

the second floor when his sister lived on the sixth, (3) not

being a resident of the building, and (4) the characterization of

the building as an area of high narcotics and gang activity,

these factors fail to inform us as to any reasonable inference of

criminal conduct on the part of the respondent and his

companions, that put the officers in reasonable apprehension of

an attack. A showing beyond that which is required for an

investigatory stop must be made to justify a weapons frisk. See

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People v. Galvin, 127 Ill. 2d at 165; compare In re S.V., 326

Ill. App. 3d 678 (2001).

This case is unlike S.V., where the investigating officers

responded to multiple calls of gunshots at a particular gang-

infested location. The calls also claimed that the shots were

fired in the course of a "gang fight." The investigating

officers observed the minor and his companions flashing gang

signs of the controlling gang in the area at passing motorists.

The minors were also observed walking away from the location of

the "shots fired" calls. Based on these facts, and the perceived

evasive reaction by the minors, the officers were justified in

the inference they drew that the minors were involved in criminal

activity and " 'were armed and presently dangerous.' " S.V.,

326 Ill. App. 3d at 685, quoting Terry v. Ohio, 392 U.S. at 24,

20 L. Ed. 2d at 908, 88 S. Ct. at 1881.

Unlike in S.V., the crime investigated here was an

"attempted break-in." There was no information that guns or

weapons were present in the course of the attempted break-in.

There was no activity directly observed by the officers, at least

according to Officer Hickey's testimony, that might have raised

the officers' suspicion that the respondent was armed and

dangerous. In fact, unlike in S.V., we question whether a

reasonable inference can be drawn on the facts known to Officer

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Hickey that the respondent and his companions were involved in

the crime being investigated. As the S.V. court cautioned:

"Terry clearly does not permit police officers to routinely frisk

individuals, without concern for whether a particular person

poses a danger." (Emphasis added.) S.V., 326 Ill. App. 3d at

686, 761 N.E.2d 248. In S.V., based on what the officers knew

and what they observed, it was reasonable to suspect that the

minor was involved in the gang shootings and, from that it

necessarily followed, that he posed a threat to the investigating

officers as possibly armed. We see no basis to draw a similar

conclusion as to the respondent here. Compare People v. F.J.,

315 Ill. App. 3d 1053 (no justification for stop and frisk based

on officer's observation that defendant placed unknown object in

his pocket as officer approached following a "gang disturbance"

call).

This case is closer to F.J. than to S.V. In fact, to the

extent F.J. concerned a hand movement by the respondent that

might indicate the concealment of some object in his pocket that

could serve as a weapon, the case before us provides less of a

showing for the frisk.

5. Officer's Fear for Her Safety

The State places the greatest weight for justification of

the frisk on Officer Hickey's testimony that she felt in fear for

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her safety. "In the case of a self-protective search for

weapons, [an officer] must be able to point to particular facts

from which [s]he reasonably inferred that the individual was

armed and dangerous." Sibron v. New York, 392 U.S. 40, 64, 20 L.

Ed. 2d 917, 935, 88 S. Ct. 1889, 1903 (1968). We are mindful

that in determining whether the officer acted reasonably under

the circumstances, "due weight must be given to the specific

reasonable inferences which [an officer] is entitled to draw from

the facts in light of [her] experience." S.V., 326 Ill. App. 3d

at 684. In accordance with the deference owed to the officers,

the question becomes: "What inferences did Officer Hickey draw

from the facts as she understood them to exist, in light of her

experience, to support her claim that she acted reasonably in

such circumstances?"

We have scoured the record to discover what in particular

about the respondent and his friends made Officer Hickey

reasonably suspect they posed a danger to her. We are left

without an objective answer. The record also provides no

testimony from Officer Hickey as to the inferences she drew about

the respondent and his companions. We can draw no reasonable

inferences on her behalf. Officer Hickey did mention the

numerous arrests for drugs in the building where the respondent

was stopped and the likely presence of weapons in drug-related

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arrests. However, as we have already noted, the officers were

not there investigating drug activity. Nor did Officer Hickey

testify to anything the respondent or his friends did to arouse

her suspicion that the respondent was involved in illicit drugs.

That in Officer Hickey's experience there is often a connection

between weapons and drug offenses provides no support for her

claim of danger posed by the respondent as the drugs on the

respondent were not discovered until after the frisk. See

Florida v. J.L., 529 U.S. at 271, 146 L. Ed. 2d at 260, 120 S.

Ct. at 1379 ("reasonableness of official suspicion must be

measured by what the officers knew before they conducted their

search").

Nonetheless, "the officer's subjective belief regarding the

safety of the situation is one of the factors that may be

considered in determining whether a weapons frisk was valid under

Terry. [Citation.]" People v. Flowers, 179 Ill. 2d 257, 264, 688

N.E.2d 626 (1997). Without discounting the officer's testimony

that she "feared for her safety," her "subjective belief" must

have an evidentiary basis in the record to allow it to be

"measured against any standard of objective reasonableness."

People v. Galvin, 127 Ill. 2d at 167. The test remains an

objective one. People v. Galvin, 127 Ill. 2d at 167.

Unfavorable results would certainly occur were it a subjective

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test. "[I]f a police officer may always search any suspect

validly stopped pursuant to Terry v. Ohio by invoking a

subjective fear which will not be measured against any standard

of objective reasonableness based on the totality of the

circumstances known to the officer at the time of the search,

then the officer would effectively be able to insulate his or her

actions from the constitutional safeguards guaranteed to

individuals under the fourth and fourteenth amendments." People

v. Galvin, 127 Ill. 2d at 167.

We also note, as in Galvin, Officer Hickey "was never asked

to specifically state what reasons existed which would lead a

prudent person to reasonably believe that in the circumstances

which existed at the time of the search, an officer would be

warranted in the belief that his safety or that of others was in

danger."5 People v. Galvin, 127 Ill. 2d at 168-69. As in

Galvin, Officer Hickey provided a one-word answer - "yes" - to

whether she was in fear for her safety at the time she did her

"protective pat-down of the minor respondent." Under Galvin, a

5
Officer Hickey was asked whether she "had any reason to

suspect that [the respondent] was armed in any way." The trial

court, however, sustained the State's objection that the question

called "for speculation" and, thus, may have prevented Officer

Hickey from explaining her actions.

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simple answer of "yes" by the investigating officer "does not

rise to the level of specific and articulable facts necessary to

justify a search for weapons." People v. Galvin, 127 Ill. 2d at

169. Neither the historical facts nor the arguments put forth by

the State support converting Officer Hickey's subjective fear

into an objectively reasonable concern for her safety. We are

also mindful of the concern expressed by defense counsel were we

to find otherwise: "[E]veryone that lives there at any point is

subject[] to a reasonable search and seizure by the officers ***"

based upon an officer's fear for his or her safety because the

building is characterized as a "high crime area." Such a holding

would effectively "insulate [an officer's] actions from the

constitutional safeguards guaranteed to individuals under the

fourth and fourteenth amendments." Galvin, 127 Ill. 2d at 167.

It would "set in motion an intrusive, embarrassing police search"

simply by being a resident of a high crime area where the

officer's presence puts him or her in fear for his or her safety.

Florida v. J.L., 529 U.S. at 272-73, 146 L. Ed. 2d at 261-62, 120

S. Ct. at 1379-80 (concern expressed in the context of rejecting

the "firearm exception" to the standard Terry analysis because

such an exception would lead to giving police "discretion to

frisk based on bare-boned tips about narcotics" in light of the

nexus between large quantities of drugs and the presence of

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weapons).

Officer Hickey had to perceive, in the conduct she observed

and in light of the circumstances she was presented with, a basis

to reasonably conclude that the respondent "might be armed and

dangerous." S.V., 326 Ill. App. 3d at 687. We find no such

justification in the record. As the Supreme Court noted in

Terry: "The scheme of the Fourth Amendment becomes meaningful

only when it is assured that at some point the conduct of those

charged with enforcing the laws can be subjected to the more

detached, neutral scrutiny of a judge who must evaluate the

reasonableness of the particular search or seizure in light of

the particular circumstances." Terry at 392 U.S. at 21, 20 L.

Ed. 2d at 906, 88 S. Ct. at 1880. What amounted to no more than

a subjective fear on the part of Officer Hickey was an inadequate

basis to conclude that her action to protect herself by

conducting a weapons frisk on the respondent was reasonable. The

intrusion of the weapons frisk of the respondent was not

constitutionally permissible under Terry.

D. Trial Court's Terry Analysis

Finally, the trial court based its decision in part on its

understanding of a Terry analysis.

"[T]he [Terry] analysis and search analysis

is not a two-prong analysis, it's a three-

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prong analysis of whether [there's]

sufficient basis for the stop. Second,

whether there's a sufficient basis for a

limited search. And third, whether there's a

sufficient basis for a weapons frisk."

The trial court concluded that under the circumstances present

here, "a limited search [was justified] on the officer's

reasonable belief that they could be in danger."

The trial court was wrong in its understanding. A "limited

search" is a "weapons frisk" under Terry. There is no "three-

prong analysis" under Terry. "[An officer] is entitled for the

protection of himself and others in the area to conduct a

carefully limited search of the outer clothing of such persons in

an attempt to discover weapons which might be used to assault

him." (Emphasis added.) Terry at 392 U.S. at 30, 20 L. Ed. 2d

at 911, 88 S. Ct. at 1884-85. There is no search more limited

than a weapons frisk under Terry. "Nothing in Terry can be

understood to allow a generalized 'cursory search for weapons'

or, indeed, any search whatever for anything but weapons."

Ybarra v Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 247, 100

S. Ct. 338, 343 (1979).

The trial court's own assessment that the circumstances of

the stop and frisk justified no more than a "limited search"

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raises the question whether the trial court rejected the

circumstances as being sufficient to warrant a "weapons frisk"

under her three-prong analysis. Nonetheless, we rely on our

assessment of the facts in reaching our holding that the

intrusion of a weapons search on the respondent was not

justified.

CONCLUSION

Accordingly, we find that the circuit court erred in denying

the respondent's motion to quash arrest and suppress evidence.

Under the facts of this case, the sum of the five factors relied

upon by the trial court is no greater than the weight to be given

to each individual factor. Under the totality of the

circumstances in this case, the relief sought by the respondent

should have been granted.

Reversed and remanded.

McBRIDE, J., concurs.

CAHILL, J., dissents.

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PRESIDING JUSTICE CAHILL, dissenting:

I respectfully dissent. I believe the majority discussion of the standard of review (slip op.

at 7-9) is selective and misleading. The trial court and the prosecution are left in the dark as to

how the majority reasoned its way to a reversal within analytical guidelines established by our

supreme court. Compare the majority traversal of the standard of review with the following:

"The defendant challenges the propriety of the trial court's denial of his

motion to suppress. Traditionally, this court has stated that when a trial court's

ruling on a motion to suppress evidence involves factual determinations and

credibility assessments, the ultimate ruling will not be disturbed on appeal unless it

is manifestly erroneous. See People v. Buss, 187 Ill. 2d 144, 204[, 718 N.E.2d 1

(1999)]; People v. Gonzalez, 184 Ill. 2d 402, 411-12[, 704 N.E.2d 375 (1998)].

This deferential standard of review is grounded in the reality that the trial court is

in a superior position to determine and weigh the credibility of witnesses, observe

the witnesses' demeanor, and resolve conflicts in the witnesses' testimony.

Gonzalez, 184 Ill. 2d at 412. Most recently, however, this court has applied the de

novo standard of review to the ultimate ruling on a motion to suppress, relying on

the Supreme Court's decision in Ornelas v. United States, 517 U.S. 690, 134 L.

Ed. 2d 911, 116 S. Ct. 1657 (1996). See In re G.O., 191 Ill. 2d 37, 46-50[, 727

N.E.2d 1003 (2000)]. In Ornelas, the Court held that when an appellate court

reviews a ruling on a motion to suppress involving a question of probable cause or

reasonable suspicion, the reviewing court should review de novo the ultimate

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finding with respect to probable cause or reasonable suspicion. Ornelas, 517 U.S.

at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. The Court cautioned, however,

that findings of historical fact should be reviewed only for clear error and that

reviewing courts must give due weight to inferences drawn from those facts by the

fact finder. Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663; In

re G.O., 191 Ill. 2d at 47-48[, 727 N.E.2d 1003]. Accordingly, we will accord

great deference to the trial court's factual findings, and we will reverse those

findings only if they are against the manifest weight of the evidence; however, we

will review de novo the ultimate question of the defendant's legal challenge to the

denial of his motion to suppress. In re G.O., 191 Ill. 2d at 50[, 727 N.E.2d

1003]." People v. Sorenson, 196 Ill. 2d 425, 430-31, 752 N.E.2d 1078 (2001).

I suppose the majority would argue that what it has written is an accurate paraphrase of

Sorenson. I strongly disagree. Absent from the paraphrase is a requirement that trial court

findings of historical fact are to be reviewed only for clear error. Absent as well is the supreme

court's choice of words: “great deference" and “due weight to inferences." I come away from this

opinion with the definite impression that the majority has reweighed the historical facts de novo.

There is nothing in this opinion that speaks to what factual findings of the trial court were clearly

in error or against the manifest weight of the evidence.

I am also troubled by the footnotes and to what end they have been inserted. The first,

ruminating on the word “loitering,” announces it will be taken as simply “descriptive of [the

group's] activity.” Slip op. at 2 n.1. Since no one has suggested a darker meaning, I do not see

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the point of the observation.

The second is more troublesome. It states that the majority “wonders” whether the radio

call that prompted the police investigation was motivated by someone’s desire to “extract” young

men from a place where they were not wanted. Slip op. at 12-13 n.2. I am baffled by this

gratuitous “wondering” when there is nothing in the record to suggest a darker meaning for the

radio call. I suppose one could go on wondering de hors the record: that the complaint that led to

the radio dispatch was from a resident weary of young men going floor to floor in the building,

selling cocaine.

Footnotes 3 and 4 (slip op. at 13-14) are interesting commentaries on small corners of our

fourth amendment jurisprudence, but if they are relevant to the majority analysis, the majority

should say so, rather than leaving us to wonder. Footnote 4 ends with a clue: "Officer Hickey did

not testify to anything the respondent did to arouse her suspicion, except perhaps being present on

the second floor.” Slip op. at 14 n.4. The problem with this clue is that Officer Hickey had sped

to the second floor in response to a radio call that there was a crime in progress and that the

defendant was at the scene.

Finally, the amendment to our fourth amendment jurisprudence announced by Terry v.

Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), was prompted in no small measure by

a recognition that our law enforcement officers do their work in an increasingly dangerous and

violent world:

"The crux of this case, however, is not the propriety of Officer McFadden's

taking steps to investigate petitioner's suspicious behavior, but rather, whether

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there was justification for McFadden's invasion of Terry's personal security by

searching him for weapons in the course of that investigation. We are now

concerned with more than the governmental interest in investigating crime; in

addition, there is the more immediate interest of the police officer in taking steps to

assure himself that the person with whom he is dealing is not armed with a weapon

that could unexpectedly and fatally be used against him. Certainly it would be

unreasonable to require that police officers take unnecessary risks in the

performance of their duties. American criminals have a long tradition of armed

violence, and every year in this country many law enforcement officers are killed in

the line of duty, and thousands more are wounded. Virtually all of these deaths

and a substantial portion of the injuries are inflicted with guns and knives.

In view of these facts, we cannot blind ourselves to the need for law

enforcement officers to protect themselves and other prospective victims of

violence in situations where they may lack probable cause for an arrest. 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 to

others, it would appear to be clearly unreasonable to deny the officer the power to

take necessary measures to determine whether the person is in fact carrying a

weapon and to neutralize the threat of physical harm." Terry, 392 U.S. at 23-24,

20 L. Ed. 2d at 907-08, 88 S. Ct. at 1881.

The majority here spends some little time suggesting that the trial judge in ruling from the

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bench was wrong in the way she articulated the steps to be undertaken in a Terry analysis. This is

partly true, but the majority is holding the trial judge to an unrealistic standard of precision when

ruling in real time on a motion to suppress. The trial judge got the historical facts right and

concluded: “I believe it was a limited search based on the officer’s reasonable belief that [she]

could be in danger.”

The majority discounts the officer’s statement that she believed herself to be in danger

because the predicate for that belief is not fleshed out to this court's satisfaction. But the trial

court was satisfied based on the historical facts, and under a proper standard of review, so should

we be. Based on the record, I believe that a prudent police officer would and should have done

exactly what Officer Hickey did. I would affirm the trial court.

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