People v. Billingslea

JUSTICE CAHILL

delivered the opinion of the court:

John Billingslea was convicted after a bench trial of unlawful use of a weapon, failure to possess a firearm owner’s identification card and failure to produce evidence of firearm registration. He was sentenced to one year of probation. He argues on appeal that the trial court erred in denying his motion to quash arrest and suppress evidence. We affirm.

At a hearing on defendant’s motion to quash arrest and suppress evidence, Chicago police officer Alvin Campbell testified that on January 8, 1994, at 11:40 p.m., he and his partner, Officer Merritt, were on routine patrol in a marked police car. As they approached 10659 South Champaign Street, Campbell saw defendant and two other men talking to the occupants of a parked car. Defendant was on the passenger side of the car and the two others were standing on the driver’s side. The officers stopped their car because they were in a "high narcotics area” and defendant "had just left the car [and] possibly *** could have had narcotics.” Campbell did not have a warrant for defendant’s arrest, nor did he witness transactions between defendant’s group and the occupants of the car.

Campbell testified that as he and Merritt got out of their squad car, the other vehicle drove away. Defendant and the other two men then approached the officers. Merritt asked defendant’s companions, "Why don’t you guys come over here[?]” Simultaneously, Campbell asked defendant to come toward him. Defendant was no more than 15 feet away when Campbell called to him. As defendant approached, Campbell observed that defendant was wearing a coat that was open and his hands were in his pockets. Campbell "saw a bundle” in defendant’s waistband. Campbell told defendant: "keep [your] hands where I [can] see them.”

After taking a couple of steps in Campbell’s direction, defendant turned slightly and took an "evasive step” away from Campbell. Defendant was then five to six feet away from Campbell. Campbell moved in front of defendant to block his path. Campbell explained that he did this to position himself so that he could catch defendant if he attempted to flee.

As Campbell moved in front of defendant to counter his evasive step, he twice told defendant to "come here.” Instead, defendant turned his back to the officer, removed an object from his waistband and threw it to the ground. Defendant then attempted to kick snow over the object he had tossed. When Campbell recovered the object from the snow, he saw that it was a .38-caliber handgun. While Campbell dealt with defendant, Merritt conducted a search of defendant’s companions, during which she told them to "grab the car.”

The trial court denied defendant’s motion to quash arrest and suppress evidence, reasoning that Campbell’s conduct in calling defendant over to his vehicle did not amount to a "stop” under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Further, the trial judge reasoned that when defendant turned from the officer and threw the gun to the ground, he lost his right to privacy, as well as standing to contest the seizure of the weapon, because he had abandoned the weapon and it was in plain view on the ground. The trial judge did not address whether a seizure occurred when Campbell moved to block defendant.

Generally, we will not disturb a trial court’s ruling on a motion to suppress unless it is manifestly erroneous. People v. James, 163 Ill. 2d 302, 645 N.E.2d 195 (1994). But where, as here, neither the facts nor credibility of witnesses is disputed, we may review the ruling de novo. People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310 (1996).

A law enforcement officer does not violate the fourth amendment’s guarantee against unreasonable search and seizure by approaching a person and questioning him. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983). But when a person’s freedom of movement is restrained by physical force or a show of authority, he is seized within the meaning of the fourth amendment. United States v. Mendenhall, 446 U.S. 544, 553-54, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). A show of authority amounts to a seizure when a reasonable person in the same circumstances would not feel free to " 'go about his business.’ ” Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, Ill S. Ct. 2382, 2386 (1991), quoting California v. Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698, Ill S. Ct. 1547, 1552 (1991).

Defendant does not dispute that he voluntarily walked toward Campbell. At that point, the encounter was consensual and he was not seized. He argues that the confrontation escalated to a seizure when Campbell, without sufficient articulable facts to justify a Terry stop, told defendant to "come here” as he blocked defendant’s path in response to defendant’s evasive step.

The State argues that defendant was not seized until after he threw the weapon down and, at that point, defendant had abandoned the gun. The State argues that nothing Campbell did before defendant threw the gun down "could be construed as a show or threat of force, and the officer did not confine or restrain defendant in any way.”

The State relies on People v. Jackson, 149 Ill. App. 3d 156, 500 N.E.2d 537 (1986), and People v. Tilden, 70 Ill. App. 3d 859, 388 N.E.2d 1046 (1979), to support its contention that there was no seizure of defendant before he tossed the gun. In Jackson, the defendant voluntarily followed an officer to his car after the officer said, "I would like to talk to you.” Jackson, 149 Ill. App. 3d at 157. The officer said he intended to ask the defendant the whereabouts of another suspect. As they walked, the officer saw the defendant put a clear plastic bag containing white powder in his mouth. The court held that the defendant was not seized because there was no indication that the officer intended to arrest or restrain the defendant. Jackson, 149 Ill. App. 3d at 158.

Similarly, in Tilden, officers were responding to a report about a suspicious person when they saw the defendant in a nearby alley. As one of the officers approached the defendant, he began to walk away. The officer asked him to return and produce identification. As the defendant searched his pockets, the officer saw a gun in the defendant’s waistband. The court held that the defendant had not been seized because the defendant’s freedom to walk away had not been hindered by force or threat of force. Tilden, 70 Ill. App. 3d at 862.

We disagree with the State’s assertion that Campbell’s action lacked a show of force before defendant threw the gun to the ground. Unlike the officers in Jackson and Tilden, the officer here did more than ask for voluntary cooperation. We believe Campbell’s action in stepping to block defendant while telling him to "come here” was a show of force indicating Campbell’s intent to restrain defendant. Campbell’s testimony confirmed that he intended to block defendant if he tried to flee. But that is not the end of our analysis.

While an officer’s show of authority may amount to a seizure (see Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, Ill S. Ct. at 2386), we have held that a defendant is not seized when he ignores a show of authority. See People v. Ramirez, 244 Ill. App. 3d 136, 145, 613 N.E.2d 1116 (1993), citing California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, Ill S. Ct. 1547 (1991). In People v. Ramirez, the defendant fled from officers who had ordered him to halt. As he fled, he dropped a brown paper bag that contained cocaine. We held that the defendant was not seized within the meaning of the fourth amendment because there had been neither the application of physical force with lawful authority nor submission to the assertion of authority. Ramirez, 244 Ill. App. 3d at 145. We found that the bag had been abandoned, and we held that defendant’s motion to exclude the evidence was properly denied.

This case is similar to Ramirez. While Campbell asserted authority when he blocked defendant, ordered him to "come here,” and ordered him to keep his hands where he could see them, defendant chose not to submit. Instead, he turned away, reached for an object in his waistband, and threw it to the ground. At that moment, defendant was not detained by physical force and did not submit to the assertion of authority. Campbell’s recovery of the gun did not result from a search or seizure of defendant.

The record further establishes that Campbell had sufficient articulable facts to justify a Terry stop before he tried to detain defendant. An officer may lawfully detain a person to conduct a brief and limited investigation of possible criminal activity where there are articulable facts and rational inferences that lead the officer to a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); People v. Zamora, 203 Ill. App. 3d 102, 106-07, 560 N.E.2d 1053 (1990).

When Campbell originally saw defendant, Campbell knew that defendant was near an occupied car in a "high narcotics area.” If this was all Campbell knew before he tried to detain defendant, his "hunch” would not have justified his intrusion. See People v. Hunt, 188 Ill. App. 3d 359, 362, 544 N.E.2d 118 (1989) (knowledge of past criminal activity in an area alone did not justify stop). But Campbell made several other relevant observations before attempting to stop defendant.

Campbell testified that, as defendant began to walk toward the officers, he saw that defendant was wearing an open coat and that there was "a bundle” or "bulge” at his waistband. Defendant also had his hands' in his pockets. Campbell then ordered defendant to keep his hands where Campbell could see them. Defendant altered his course and took an evasive step away. These articulable facts, coupled with Campbell’s knowledge that he was in a high crime area, gave him reason to block defendant.

An investigatory stop is proper when the articulable facts, together with natural inferences, make the intrusion reasonable. People v. Scott, 148 Ill. 2d 479, 503, 594 N.E.2d 217 (1992), quoting People v. Smithers, 83 Ill. 2d 430, 436 (1980); People v. McGowan, 69 Ill. 2d 73, 78 (1977). We believe a reasonable officer in Campbell’s position would be alerted to the possibility of criminal activity and that the better part of wisdom compelled Campbell’s minimal intrusion of blocking defendant’s path to detain defendant long enough to investigate.

Affirmed.

COUSINS, P.J., concurs.