dissenting:
I dissent.
To justify a “stop and frisk” of a person, police officers must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Lee (1971), 48 Ill. 2d 272, 269 N.E.2d 488.) The facts justifying a “stop and frisk” need not be sufficient to establish probable cause to arrest. (People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537.) The justification for the limited intrusion into a citizen’s privacy is the need to protect the police officers and other persons nearby from possible danger, and the essential question which must be answered in each case is:
“Would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” People v. Lee (1971), 48 Ill. 2d 272, 276, 269 N.E.2d 488, 491; Terry.
Although each “stop and frisk” case must be decided on its own facts, courts have consistently looked to certain factors to determine the appropriateness of an officer’s actions, including the nature of the call to which the officers are responding (Lee; People v. Basiak (1977), 50 Ill. App. 3d 155, 365 N.E.2d 570), the time of day (McGowan; People v. Berry (1977), 54 Ill. App. 3d 647, 370 N.E.2d 26) the location of the incident (McGowan; People v. Blakes (1977), 55 Ill. App. 3d 654, 370 N.E.2d 869) and the flight of the person when confronted by the officers. People v. Addison (1977), 56 Ill. App. 3d 92, 371 N.E.2d 1025, People v. Montgomery (1977), 53 Ill. App. 3d 298, 368 N.E.2d 752.
In the instant case Officers Meisener and Nelson responded during the early morning hours of the night, 3:30 a.m., to a “man with a gun” call from the Spanish Lady Tavern which contained 20 or more noisy and boisterous patrons. When Officer Meisener entered the front door of the tavern, defendant, who had been walking toward that door, turned and walked toward the rear door of the tavern. After being advised by the bartender that defendant had been involved in the fracas, the officers stopped defendant and conducted the limited “pat down” search which resulted in discovery of the weapon.
Considering these facts, I cannot agree with the majority’s conclusion that the officers’ action in detaining and frisking defendant was unreasonable. The officers had been advised that defendant was involved in the earlier reported fracas and they would have been remiss in their duty had they allowed defendant to leave the tavern without further investigating his involvement. Moreover, because the incident in which defendant was said to have participated involved a “man with a gun,” the officers clearly would have been foolhardy to detain defendant without first assuring themselves that he was not armed and dangerous. People v. Basiak (1977), 50 Ill. App. 3d 155, 365 N.E.2d 570.
“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.” Terry v. Ohio (1968), 392 U.S. 1, 23, 20 L. Ed. 2d 889, 907, 88 S. Ct. 1868, 1881.
The majority erroneously places too much significance on the fact that no crime took place in the officers’ presence. The officers weren’t called to the tavern for the purpose of stopping a game of cards but were called to stop a fracas and to seek a “man with a gun.”
Certainly in this case the search of the defendant was predicated upon the officers’ reasonable fear for their safety. The officers were pursuing a proper investigative function by stopping defendant. The totality of the circumstances, particularly the defendant’s attempt to evade the officers, supplied them with reasonable grounds to conduct the pat-down search to assure their safety. The officers need not personally observe the commission of a crime to warrant a “stop and frisk.”
The yardstick under the two statutes mentioned in the majority opinion is reasonableness.
“Where probable cause for an arrest is lacking, the forcible encounter, the stop, or the seizure, of a citizen by a police officer must arise from a reasonable suspicion that criminal activity is afoot. ( # ° * Adams v. Williams, 407 U.S. 143, 145; cf. Terry v. Ohio, 392 U.S. 1,22; Sibron v. New York, 392 U.S. 40, 72-73 * * * ; [citations].) There is, however, no ready test for determining reasonableness. Rather, a balance must be struck between the need to seize (or stop) and the invasion which the seizure (or stop) entails.” (People v. Moore (1973), 32 N.Y.2d 67, 69, 343 N.Y. Supp. 2d 107, 110, 295 N.E.2d 780, 782; cf. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868; see People v. Rivera (1964), 14 N.Y. 2d 441, 444-45, 252 N.Y. S. 2d 458, 460-62, 201 N.E.2d 32, 33-35.)
The fact is that only a few minutes prior to the “stop and frisk” of the defendant, the officers had received a report from the tavern of an incident involving a “man with a gun.” The need for immediate action in locating the gun and protecting themselves and other persons from potential danger was apparent to the officers. Yet the majority opinion seeks to place an unnecessary risk on the police officers in the proper performance of their duties.
The majority notes the bartender’s suppression hearing testimony that the reported fracas was actually only a yelling argument and that defendant had not been involved in it. This testimony is of no significance to the decision in this case. Whether or not the action of the officers was appropriate is to be determined on the basis of “the facts available to the officer at the moment of the seizure or the search.” (People v. Lee (1971), 48 Ill. 2d 272, 276, 269 N.E.2d 488, 491.) The facts to which the bartender testified at the suppression hearing were not communicated to the officers at the time of the “stop and frisk” and are, therefore, irrelevant to a determination of the reasonableness of the officers’ actions. At the time of the search, the officers had been advised that a “man with a gun” incident had taken place at the tavern and that defendant had been involved in it. Moreover, the defendant’s sudden change of direction upon seeing the officers enter the tavern could have justifiably been interpreted by the officers as an attempt by the defendant to avoid the officers and to flee from the scene. The high incidence of aggravated assault and the attendant use of firearms in tavern fights or quarrels needs no elaboration here. Concealed weapons present an immediate and real danger to the public. I cannot agree with the conclusion the majority has reached because I believe it to be clearly unreasonable to deny the police officers the power to take necessary measures to determine whether the defendant was in fact carrying a weapon and to neutralize the threat of physical harm.
I believe the officers in this case had not only the right, but the duty to stop defendant and subject him to a protective frisk. The judgment of the Circuit Court of Peoria County should be reversed.