dissenting:
I dissent for two reasons.
First, the defendant in his motion to reconsider presented a purely legal argument. Judge Linn in his initial decision ruled that the defendant’s case was nearly “on all fours” with the Terry decision. In reconsidering and granting the defendant’s motion to suppress, Judge Linn explained that he “perhaps overapplied these facts to Terry.” Judge Linn concluded the defendant’s actions could just as easily be construed as window shopping as casing potential targets, and because Officer Connor did not provide any specific information concerning the prior robberies, such as a description of the gender of the suspects, their race, age, height or weight, it was apparent that Officer Connor “tjjust wanted to check out Mr. Jackson for basically looking inside of windows.” In other words, based on the testimony, Officer Connor did not have reasonable suspicion to justify a Terry stop of the defendant.
In reconsidering his initial decision, Judge Linn did not reconsider the findings of fact he stated on the record pursuant to section 114— 12(e) of the Code of Criminal Frocedure of 1963 (725 ILCS 5/114— 12(e) (West 2006) (order granting or denying a motion to suppress “shall state the findings of facts and conclusions of law upon which the order *** is based”)); nor did the defendant seek to reopen the hearing to introduce additional evidence. The facts did not change, only the legal ruling changed. See People v. Wear, 371 Ill. App. 3d 517, 531, 867 N.E.2d 1027 (2007) (where the defendant “merely argued that the court erred in its application of existing law,” “we will not presume that the court had an unsolicited change of mind about the facts”), aff’d, 229 Ill. 2d 545, 893 N.E.2d 631 (2008). Because Judge Linn made no factual findings upon reconsideration, it is clear that Judge Linn granted the motion to reconsider on the erroneous legal conclusion that the encounter between the defendant and Officer Con-nor was an investigative detention, without reasonable suspicion, a position even the majority does not adopt.
Because a reasonable suspicion analysis does not apply to the encounter between the defendant and Officer Connor, the majority is compelled to modify the judge’s ruling: “By granting the motion, the trial court necessarily changed its view on whether the defendant was submitting to lawful authority when the gun dropped to the ground.” 389 Ill. App. 3d at 288. I find no basis for this determination for it pretends to read the mind of the trial judge. Logic does not favor this outcome and we have previously taken the opposite view: “[W]e infer that while adhering to its previous factual findings, the court agreed with the legal argument that defendant made in his motion for reconsideration, and granted the motion on that basis.” Wear, 371 Ill. App. 3d at 531.
Judge Linn was clear on his findings of fact: Officer Connor was credible and, at the time the gun was dropped, the defendant “wasn’t complying with the officer’s command, under the color of law.” His findings lead to but one conclusion: the defendant’s fourth amendment rights were not implicated at the time of his encounter with Officer Connor because no seizure occurred. This was the precise holding in Thomas-, no seizure occurs based on a verbal show of authority where “ ‘the subject does not yield.’ ” Thomas, 198 Ill. 2d at 111, quoting California v. Hodari D., 499 U.S. 621, 626, 113 L. Ed. 2d 690, 697, 111 S. Ct. 1547, 1550 (1991).
Second, even accepting the majority’s position that we may disregard Judge Linn’s initial findings of fact and force our own interpretation upon the defendant’s actions at the time he dropped the handgun, I cannot agree that an unlawful seizure of the handgun occurred when Officer Connor recovered the handgun from the ground. I submit that it makes all the difference in a fourth amendment analysis that at the time the handgun was recovered by Officer Connor, the defendant had already “turned away and fled on foot.”
The majority’s reliance on a sentence fragment from Smith as authority for the conclusion reached here is faulty. More completely, we held:
“Under other circumstances we would find that a seizure occurred no later than when the defendant was told to stop and to remove his hands from his pockets. At that point the defendant had begun to back away from the officers, indicating his intent to leave. The officers just as clearly indicated their intent that he remain. However, because the defendant did not submit to the officers’ commands, but continued to back away, no seizure occurred at that point.” (Emphasis added.) Smith, 331 Ill. App. 3d at 1053.
It is precisely that necessary element of compliance before a seizure can be found that is absent in this case. “ ‘The police may well convey a reasonable feeling of restraint, but that message does not amount to a seizure within the meaning of the fourth amendment until there is submission to it. A person must submit to a show of authority before that show of authority can constitute a seizure.’ ” (Emphasis omitted.) Thomas, 198 Ill. 2d at 112, quoting appellate court decision, People v. Thomas, 315 Ill. App. 3d 849, 857, 734 N.E.2d 1015 (2000), citing Hodari D., 499 U.S. at 629, 113 L. Ed. 2d at 699, 111 S. Ct. at 1552. As in Smith, but far more emphatically here, the defendant made clear “his intent to leave.” Smith, 331 Ill. App. 3d at 1053. Whatever notion of compliance may have been present triggered by Officer Connor’s commands that the defendant remove his hands from his pockets dissipated with the defendant’s flight.
The majority’s holding that “[t]he seizure was complete at the moment Officer Connor first saw the gun” (389 Ill. App. 3d at 288) is unpersuasive. More than fleeting compliance is required. Smith and People v. Billingslea, 292 Ill. App. 3d 1026, 686 N.E.2d 603 (1997), instruct that an intent to comply must be present in the acts of the defendant. Any suggestion that there was such an intent present here is completely undermined by the defendant’s flight. Compliance cannot be so momentary that the “seizing” officer has no time to react. Even if a scintilla of intent to comply may be discovered in the defendant’s act of removing the handgun from his pocket, the overriding intent of the defendant made clear by his flight was to avoid arrest. Consistent with his aim to avoid arrest, the defendant dropped the handgun to distract the officer or at least delay his pursuit.
The majority’s holding renders meaningless the submission requirement. Submission to authority is not subject to a microscopic view of an encounter to find compliance, precisely because any perceived compliance may dissipate just as quickly with the defendant’s flight. That this is true is most persuasively illustrated by answering the majority’s challenge that the defendant’s flight makes no difference.
Had the defendant made good on his flight and not been arrested until hours later, his motion to quash arrest and suppress evidence would not lie. His arrest hours later would be supported by the probable cause established by the recovered handgun (Billingslea, 292 Ill. App. 3d at 1030-31 (officer’s recovery of tossed gun provided probable cause for arrest that began as a Terry stop)); the recovered handgun would not be subject to a motion to suppress because the defendant abandoned all interest in the handgun when he dropped it (People v. Novakowski, 368 Ill. App. 3d 637, 641, 857 N.E.2d 816 (2006) (property dropped to ground and left is considered abandoned, which is not subject to fourth amendment protection against unreasonable search and seizure)). That the defendant did not make good on his attempt to flee should not, in fact cannot, put him in a better position. His flight makes clear his intention not to submit to Officer Connor; absent submission there can be no seizure based solely on a verbal show of authority. 550 (“The Court concluded that the fleeing Hodari was not seized until a police officer tackled him”).
As in Smith and Billingslea, the defendant in this case was not seized for fourth amendment purposes at the time Officer Connor repeatedly directed the defendant to remove his hands from his pockets because the defendant, in dropping the handgun and fleeing, did not submit to the officer’s verbal show of authority. The defendant was not seized until he was actually arrested by nearby assisting officers, by which time the handgun had been recovered. Because Officer Connor’s recovery of the handgun did not result from a seizure of the defendant, Judge Linn’s legal ruling granting the motion to suppress should be reversed.
I dissent.