dissenting:
I disagree with the majority that there was probable cause to arrest defendant for possession of the plastic bags of cocaine found on the floor beneath the table at which he was sitting.
Pringle is an odd choice to be the majority’s primary authority. The Supreme Court defended its holding in Pringle by noting that the defendant “[was] in a relatively small automobile, not a public tavern” (Pringle, 540 U.S. at 373, 157 L. Ed. 2d at 776, 124 S. Ct. at 801). The majority extends the reasoning of Pringle to an arrest that occurred in “a public tavern” under circumstances that are nothing like Pringle.
The “public tavern” case that Pringle referenced was Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238,100 S. Ct. 338 (1979). (Incidentally, defendant relies extensively on Ybarra but the majority scarcely mentions the case.) In Ybarra, the police applied for a warrant based on an informant’s tip that he had seen what appeared to be packets of heroin in the possession of the bartender at an Aurora tavern and that the bartender told him that he would have heroin for sale at the tavern on a particular day. The police obtained a warrant to search both the person of the bartender and the tavern for contraband. They executed the search warrant on the date specified in the informant’s tip. The police performed pat-down searches of all patrons found on the premises, including the defendant, Ybarra. Contraband was found during the frisk of Ybarra. The Supreme Court held that the frisk was unlawful because the informant had implicated no individual but the bartender in criminal activity, and the police made no observations of Ybarra while on the premises that might have supported a suspicion of criminal activity. Therefore, the only potential basis for frisking Ybarra was his presence on premises suspected to contain contraband and his proximity to an individual who was suspected of criminal activity. The Court held that this connection did not supply probable cause to search Ybarra:
“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. [Citation.] Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.” Ybarra, 444 U.S. at 91, 62 L. Ed. 2d at 245, 100 S. Ct. at 342.
The Court further held that the facts did not meet even the lower threshold for protective searches recognized in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The Court explained that Terry “does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.” Ybarra, 444 U.S. at 94, 62 L. Ed. 2d at 247, 100 S. Ct. at 344.
The Court in Pringle rejected the defendant’s claim that his case was “a guilt-by-association case” like Ybarra. Pringle, 540 U.S. at 372, 157 L. Ed. 2d at 776, 124 S. Ct. at 801. The Court found that the facts before it were “quite different” from those of Ybarra:
“[Defendant] and his two companions were in a relatively small automobile, not a public tavern. *** [W]e [have] noted that ‘a car passenger — unlike the unwitting tavern patron in Ybarra — will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits of the evidence of their wrongdoing.’ [Citation.] Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.” Pringle, 540 U.S. at 373, 157 L. Ed. 2d at 776-77, 124 S. Ct. at 801.
The Court did not expressly state what differences between a “public tavern” and a “relatively small automobile” it considered relevant for purposes of the probable cause analysis, but those differences may readily be inferred. Predominant among them are the larger spatial area of a tavern, the vastly greater number of persons present at any given time, and the continually shifting nature of that population, consisting as it does of patrons whose presence is largely transient. What this means is that, generally, the presence of contraband in proximity to an individual in a “public tavern” will admit of more explanations that exclude the individual than if the contraband and the individual were present together in a “relatively small automobile.” Ironically, the majority applies Pringle to the very factual scenario that the Supreme Court stressed was not present in that decision.
I recognize, of course, that the arrest of a tavern occupant for possession of nearby contraband will be permissible in some circumstances. This, however, is not one of those cases. The majority’s reasoning proceeds in an orderly way, premise upon premise, but there are several loose seams. The majority’s first premise is that “it was reasonable to infer that the cocaine had been secreted away between the wall and the table in an intentional effort to conceal it.” 369 Ill. App. 3d at 870. The majority suggests that, while it is “possible” that the “cocaine just happened to be under the table at this inopportune time, unbeknownst to [defendant] and Vargas,” it is “far more reasonable” to infer that “defendant, Vargas, or both men had cocaine on their persons and discarded it upon observing police officers enter the bar and begin to question and pat down patrons” than to infer that the cocaine was left there “inadvertently.” 369 Ill. App. 3d at 869. This is so, the majority states, because “cocaine in substantial quantities is rarely dropped inadvertently on the floor,” and, if it is so dropped, it is “unlikely” to “remain there very long.” 369 Ill. App. 3d at 869. “[C]ocaine,” the majority observes, “is more often deposited upon the ground when individuals unexpectedly approached by the police hasten to disassociate themselves from the substance, for fear of criminal prosecution.” 369 Ill. App. 3d at 869.
This is an uneasy chain of inferences. The majority claims that, because the cocaine was discovered during the police activity in the bar, it is not just probable that the cocaine on the floor was deposited there intentionally, but that this is actually far more likely than that the cocaine was dropped there inadvertently. The majority envisions defendant discarding the cocaine as the radius of the police activity edged toward him. Defendant lacks standing to challenge the legitimacy of the police searches that preceded the search of his own person and, on the majority’s theory, caused him to discard the cocaine. Even so, I cannot overlook that the general sweep of the premises here nearly duplicated the heavy-handed tactics found illegitimate in Ybarra, and I believe that the majority improvidently signals today that police may deliberately “flush out” from an individual evidence of illegal activity by utilizing unconstitutional means that the individual lacks standing to challenge. This aside, I cannot agree with the majority’s comparison of probabilities. The majority’s foundation for believing that it is more likely that the cocaine was intentionally discarded during the raid than that it was left there inadvertently at some prior time is that, if the latter were true, the cocaine would not have been there “very long,” given its high value. 369 Ill. App. 3d at 869. Probable cause to arrest exists where there is a fair probability that a crime was committed and that the defendant committed it. People v. Brannon, 308 Ill. App. 3d 501, 505 (1999). Probable cause may not rest on mere hunch or speculation (People v. Little, 322 Ill. App. 3d 607, 612 (2001)), but these are precisely what the majority leans on here. There was no evidence at the suppression hearing of how long contraband will remain on the floor of a bar full of patrons before it is snatched up. The majority fails to factor into its analysis the possibility that the allure of cocaine is not so strong that just anyone will be willing to pick that illegal substance off the floor in a public place. This court lacks the wherewithal even to begin to conceptualize the likelihood of the cocaine remaining on the floor 5 minutes or 10 minutes or 15 minutes. The timing is critical, but the probabilities here are too elusive to measure. Wispy notions like these do not amount to the “fair probability” required for probable cause.
I recognize that the majority cites, as further evidence that the cocaine was discarded intentionally, the fact that it was found on the floor in a narrow space between the table and the wall. Officer Caltagerone testified that “unless you are looking for [the cocaine] you are not going to see it back there.” The majority concludes that it is reasonable to infer that the cocaine “had been secreted away.” 369 Ill. App. 3d at 870. Though reasonable, this inference begs the question of when and by whom the cocaine was secreted away. The majority’s theory, of course, is that the cocaine was secreted away when the police arrived. Presumably, the majority again is depending on the vague notion that the cocaine could not have been there “very long.” However, if the cocaine was fairly well hidden, as the evidence suggests, then perhaps it could have remained there a significant period of time. Could there not have been some reason for someone in the El Navegante bar to hide cocaine sometime before the Rockford police entered the bar on May 7, 2004, at 10:15 p.m.?
After concluding that the police could have reasonably inferred that the cocaine had been intentionally placed on the floor beneath defendant’s and Vargas’s table, the majority proceeds to find that the police could have also reasonably inferred “that one or both of the men discarded the cocaine when the police entered the bar.” 369 Ill. App. 3d at 871. The majority suggests that this inference was supported by the location of the cocaine, which corroborated past tips from confidential informants that the bouncers at the bar were selling cocaine. The tips concerned illegal activity by some unidentified “bouncers,” but for the arrest to be proper, the police would have had to possess probable cause particularized to an individual. The majority believes that this particularity was established by defendant’s and Vargas’s proximity to the cocaine, which, in the majority’s view, supplied probable cause to believe that at least one of the men was in actual possession of the cocaine. However, “[m]ere proximity is not sufficient evidence of actual possession [citation], and knowledge of the location of contraband is not the equivalent of possession but merely a necessary element of possession [citation]” (People v. Schmalz, 194 Ill. 2d 75, 81-82 (2000)). Although actual possession does not require present personal touching of the contraband, there must be present personal dominion over the contraband. Schmalz, 194 Ill. 2d at 82. The majority can only speculate that either or both of these men were aware of the cocaine on the floor, but even their knowledge of the cocaine would not be sufficient to fulfill the elements of actual possession.
I do not dispute the majority’s inference that Vargas and defendant were the bar’s bouncers. I do question, however, the majority’s attempt to exclude other possible perpetrators. The majority says: “Bouncers generally remain at their posts such that bar patrons do not typically occupy the bouncers’ station, making it reasonable to infer that it was unlikely that anyone other than the bouncers deposited the cocaine under the table at which the bouncers were stationed.” 369 Ill. App. 3d at 870. There are a number of problems here. First, there is no evidence in the record concerning the duties of bouncers; if extrajudicial knowledge is now fair game, I would submit that, in addition to their doorkeeping tasks, which generally can be performed in a seated position, bouncers have enforcement duties that take them away from their posts, and neither I nor the majority know how bouncers generally divide their time between these different duties. Second, I do not believe that Vargas and defendant would have had to leave their posts in order for a third party to have the opportunity to deposit the cocaine under their table. Someone could have dropped the cocaine there with a subtle motion while walking by the table or while conversing with defendant or Vargas, or could have tossed the cocaine under the table from some distance during the bustle of activity brought about by the police entry and search. Of course, these are all conjectures, but the majority’s inferences are equally conjectural. At the very least, my conjectures are not fanciful enough to be dismissed out of hand as “unlikely.”
Once finding that the facts supported an inference that either defendant or Vargas dropped the cocaine, the majority concludes that this inference alone was enough to arrest defendant. Relying on Pringle, the majority reasons that “[i]t would be difficult for one bouncer to engage in [drug dealing] without his partner detecting it and thereby gaining the potential to furnish evidence against him.” 369 Ill. App. 3d at 871. The Court in Pringle, however, found a common enterprise based on the close confines of the car in which the defendant and his companions were found, and it expressly distinguished a car from “a public tavern.” Pringle, 540 U.S. at 373, 157 L. Ed. 2d at 776-77, 124 S. Ct. at 801. Rather than explore the differences between these two types of settings — differences that the Supreme Court found important in distinguishing Pringle from Ybarra — the majority simply stresses that its “inference of common enterprise is not reached based on Vargas’s and defendant’s presence in a public tavern” but rather “is based on their roles as bouncers, and the concomitant activities of bouncers, in a bar where the bouncers were known to deal cocaine.” 369 Ill. App. 3d at 872.
The first assertion here is nonresponsive to the issues at hand, since my claim is not that the majority finds probable cause “based on” defendant’s presence in a public tavern, but that it (improperly) finds probable cause despite defendant’s presence in a public tavern. There are far more opportunities for a bouncer in a public tavern to carry out his drug transactions outside his partner’s knowledge than there are for the occupant of a car to transact such business without the knowledge of his fellow occupant. This was precisely Pringle’s point in distinguishing Ybarra. Interestingly, the majority seems to credit the drug-dealing bouncer with little wit. The majority evidently assumes that this bouncer, though aware of another’s proximity, would be incautious enough to dispense drugs from the table where they both sat rather than to distribute them while going to the restroom or taking a break or during some other occasion to leave the table.
As for the majority’s second assertion, i.e., that its finding of probable cause “is based on [defendant’s and Vargas’s] roles as bouncers, and the concomitant activities of bouncers” (369 Ill. App. 3d at 872), I simply reiterate that the majority’s claims about the activities of bouncers are unsubstantiated by the record. Finally, the claim that the bouncers in the El Navegante bar “were known to deal cocaine” (emphasis added) (369 Ill. App. 3d at 872) simply is not borne out by the record and is in fact a far stronger claim than the majority needs to make.
For the foregoing reasons, I conclude that the police lacked probable cause to arrest defendant for possession of the cocaine found underneath his table.
I also reject the remaining bases that the State offers to sustain the arrest of defendant. First, the State argues that defendant consented to the pat-down search that led to the discovery of the brass knuckles on his person, which in turn led to his arrest. Defendant urges this court to find this argument waived because the State fails to cite any authority or provide any analysis. I agree that the argument is waived. See 210 Ill. 2d R. 341(h)(7) (an appellant’s brief shall include “[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on”).
Even if this argument were not waived, I would find that it lacks merit. It is well settled that an individual may voluntarily consent to a search, thereby eliminating the need for probable cause and a warrant. People v. Smith, 214 Ill. 2d 338, 349 (2005). For consent to be voluntary, it “must be received, not extracted ‘by explicit or implicit means, by implied threat or covert force.’ ” People v. Anthony, 198 Ill. 2d 194, 202 (2001), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 36 L. Ed. 2d 854, 863, 93 S. Ct. 2041, 2048 (1973). Whether a defendant’s consent to a search was voluntary is a question of fact determined from the totality of the circumstances. Smith, 214 Ill. 2d at 350. “ ‘In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.’ ” Anthony, 198 Ill. 2d at 202, quoting Schneckloth, 412 U.S. at 229, 36 L. Ed. 2d at 864, 93 S. Ct. at 2049. The State bears the burden of proving that the defendant’s consent was voluntary. Anthony, 198 Ill. 2d at 202.
Defendant and McDonald presented conflicting accounts of the circumstances surrounding the pat-down search of defendant. McDonald testified that he “asked” defendant to stand and then “asked” whether he could search defendant. Defendant, however, testified that McDonald “told” him to get up and “told” him to raise his arms. Defendant also testified that McDonald did not give him a choice whether or not to comply. The trial court accepted a third version of the interaction, presented in McDonald’s police report, according to which McDonald “asked [defendant] to stand up so he could be checked for weapons.” There is no dispute that defendant gave no verbal response to McDonald’s request.
Based on these facts as found by the trial court, I find this case indistinguishable in all relevant respects from our supreme court’s decision in Anthony. There, police officers Barr and Stapleton were on routine patrol when they saw the defendant exit a residence in which they knew he did not live. Anthony, 198 Ill. 2d at 197. Officer Barr called to the defendant, “ ‘Excuse me sir. Can I talk to you for a minute?’ ” Anthony, 198 Ill. 2d at 198. The defendant stopped and allowed the officers to approach. Anthony, 198 Ill. 2d at 198. Officer Barr asked the defendant what he was doing in the area and whom he knew at the residence from which he came. Anthony, 198 Ill. 2d at 198. The defendant told Officer Barr that he was there visiting a certain female. Anthony, 198 Ill. 2d at 198. The defendant appeared nervous and repeatedly reached into his pants pockets. Anthony, 198 Ill. 2d at 198. As a consequence, Officer Barr asked the defendant to “please” keep his hands out of his pockets for his and his partner’s safety. Anthony, 198 Ill. 2d at 198. The defendant complied, and Officer Barr asked him “ ‘if he had anything on him that he shouldn’t have, anything like guns, drugs, knives, anything that could hurt [Officer Barr] or [his] partner.’ ” Anthony, 198 Ill. 2d at 198. The defendant answered no. Anthony, 198 Ill. 2d at 198. When Officer Barr asked the defendant if he would consent to a search of his person, the defendant, according to Officer Barr, “ ‘assumed the position,’ ” that is, he spread his feet and placed his hands on top of his head. Anthony, 198 Ill. 2d at 198. The search that followed uncovered cocaine on the defendant’s person. Anthony, 198 Ill. 2d at 199.
After recognizing that the voluntariness of consent is a question of fact determined from the totality of the circumstances (Anthony, 198 Ill. 2d at 202), the supreme court held that the State failed to prove that the defendant voluntarily consented to the search of his person (Anthony, 198 Ill. 2d at 204). The court explained that a defendant “may convey consent to search by nonverbal conduct [citations], but ‘mere acquiescence to apparent authority is not necessarily consent.’ ” Anthony, 198 Ill. 2d at 202, quoting People v. Kelly, 76 Ill. App. 3d 80, 87 (1979). The court concluded that the defendant’s nonverbal actions were ambiguous and, though it could be inferred that the defendant “intended to consent, not acquiesce,” it was equally possible that he “submitted and surrendered to what he viewed as the intimidating presence of an armed and uniformed police officer who had just asked a series of subtly and increasingly accusatory questions.” Anthony, 198 Ill. 2d at 203.
Defendant’s consent was given in circumstances that were at least as coercive as those in Anthony. I defer to the trial court’s finding that, prior to approaching defendant, the police searched every other male patron in the bar without seeking their consent. Caltagerone detained and searched Vargas, without obtaining his consent, immediately before directing McDonald to “check out” or, as McDonald put it, “detain” defendant. McDonald “asked” rather than “told” defendant to stand so he could be searched, but this courtesy did little to lessen the pressure on defendant. Although defendant might have believed he had the option to refuse, it is equally likely that he considered himself the inevitable next subject of the officers’ general sweep of the bar and therefore resigned himself to the search. The trial court was correct that the State did not bear its burden of proving that defendant’s consent was voluntary.
The State’s other contention is that the protective frisk of defendant was warranted by the anonymous tip that three or four males with shaved heads and armed with handguns had entered the bar. According to McDonald, the males were “possibly Mexican.” The trial court found that defendant did not fall within the scope of the tip because he is not Hispanic and at the time of the search his head was not shaved. I need not decide whether defendant fell within the tipster’s description because I find that the tip lacked the requisite reliability in any case.
An officer may briefly stop an individual for investigative purposes if the officer reasonably believes, based on specific and articulable facts, that the individual has committed, or is about to commit, a crime. See generally Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The officer may also conduct a protective search or frisk of the individual if the officer reasonably believes that the individual may be armed. Terry, 392 US. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.
Here, the information that prompted the police to enter the El Navegante bar and frisk the male patrons came from an anonymous source. In Florida v. J.L., 529 U.S. 266, 270, 146 L. Ed. 2d 254, 260, 120 S. Ct. 1375, 1378 (2000), the United State Supreme Court explained how courts are to assess the adequacy of anonymous tips:
“Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, [citation], ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,’ [citation]. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatoiy stop.’ [Citation.]”
“Where the reliability of the information obtained from an anonymous informant cannot be easily corroborated and no other suspicious circumstances are known to the police, a stop may be found unwarranted.” People v. Ledesma, 206 Ill. 2d 571, 583-84 (2003). “However, substantial corroboration not only establishes an informant’s veracity, but also supports an inference that an informant obtained his story reliably.” Ledesma, 206 Ill. 2d at 584.
The only authority cited by the State in support of the frisk of defendant is People v. Smithers, 83 Ill. 2d 430 (1980). In Smithers, the police responded to an anonymous tip that there was a “ ‘man with a gun’ ” at a certain tavern. Smithers, 83 Ill. 2d at 432. When the police arrived, they heard inside the tavern yelling that suggested some kind of disturbance. They entered the tavern and saw the defendant walking toward them. Upon seeing the police, the defendant reversed course and walked toward the back of the bar. At that point, the police were informed, by either a bartender or one of the patrons, that the defendant was involved in the disturbance. Consequently, the officers stopped the defendant, frisked him, and discovered a gun on his person. Smithers, 83 Ill. 2d at 432-33.
Our supreme court upheld the frisk, based on (1) the seriousness of the tip (i.e., armed man), which “cast[ ] a heavy weight in favor of the reasonableness of the search” (Smithers, 83 Ill. 2d at 438); (2) the lateness of the hour (4 a.m.) and the statistic that most assaults against police officers occur between 12 a.m. and 6 a.m.; (3) “the circumstances existing at the tavern when the officers arrived,” which “confirmed, partially at least, the validity of the call” (Smithers, 83 Ill. 2d at 439); (4) the identification of the defendant as being involved in the disturbance, which gave the police “reasonable grounds to believe the defendant to be the person about whom the ‘armed man’ call was made” (Smithers, 83 Ill. 2d at 439); and (5) the defendant’s evasive behavior upon seeing the police.
In Smithers, the anonymous tip that an armed man was at the tavern was corroborated by the fact of a disturbance at the premises consistent with the presence of an individual with a gun. Further, someone at the tavern identified the defendant as being connected with the disturbance. Here, the anonymous tip that several males with shaved heads and armed with handguns entered the El Navegante bar was corroborated insofar as there were males with shaved heads (or at least closely cropped hair) in the bar when the police arrived. However, the police observed nothing in the bar corroborating the tipster’s claim that there were armed males on the premises.
I believe, therefore, that this case more resembles J.L. than Smithers. In J.L., the police received an anonymous call that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” J.L., 529 U.S. at 268, 146 L. Ed. 2d at 259, 120 S. Ct. at 1377. On arriving at the bus stop, the police observed three black males, one of whom, the defendant, was wearing a plaid shirt. The officers did not see a firearm on any of the men and did not observe them make any threatening movements. That is, apart from the tip, the officers had no reason to suspect any of the three men of illegal conduct or of being armed. Nonetheless, one of the officers frisked the defendant and seized a gun from his pocket. The Supreme Court held that the tip was inadequate to justify the frisk. The Court reasoned that the tip lacked “predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” J.L., 529 U.S. at 271, 146 L. Ed. 2d at 260, 120 S. Ct. at 1379. The Court observed that “[a]ll the police had to go on *** was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant].” J.L., 529 U.S. at 271, 146 L. Ed. 2d at 260-61, 120 S. Ct. at 1379. The.fact that the tip gave an accurate physical description of the defendant was not enough to save it:
“An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L. 529 U.S. at 272, 146 L. Ed. 2d at 261, 120 S. Ct. at 1379.
The tip in the present case described the subjects in terms of gender and hairstyle (and perhaps race) and also identified their location. However, the tip left the police no means by which they could test the further assertion that the subjects were armed. While the tip was “reliable *** in its tendency to identify a determinate person,” it was not “reliable in its assertion of illegality” (J.L., 529 U.S. at 272, 147 L. Ed. 2d at 261, 120 S. Ct. at 1379). Therefore, under J.L., the tip lacked adequate corroboration.
I recognize that Smithers considered factors in addition to corroboration, such as the facts that the subject of the tip was a gunman, which presented a potentially grave situation, and that the police entered the tavern at an hour that was statistically dangerous for police. Here the police entered the bar shortly after 10 p.m., not during the hours that the Smithers court cited as particularly perilous for police officers. Though I make no suggestion that police ought to conduct themselves differently when responding to a tip at 10 p.m. as opposed to 4 a.m., considerations of police prudence cannot compensate for the tip’s failings in other respects. As for the fact that the subjects of the tip supposedly had firearms, this, too, is inadequate to save the tip. In J.L., the Supreme Court refused to establish “an automatic firearm exception to *** established reliability analysis,” and noted that Terry’s recognition of a less taxing standard than probable cause for protective searches was itself a response to “the serious threat that armed criminals pose to public safety.” J.L., 529 U.S. at 272, 147 L. Ed. 2d at 261, 120 S. Ct. at 1379.
I note that, though the Court in J.L. refused to recognize a firearm exception to its reliability requirements, the Court provided no guidance for police on how to respond to an anonymous tip of the kind in J.L. and the present case, i.e., a tip that alleges that a subject is armed yet does not provide enough detail to meet the Terry threshold. Such tips raise the specter of the senseless gun violence whose bloody and tragic consequences are known by our courts but are known with much greater and graver immediacy by the officers who keep the peace on our streets. After J.L., police are in a dilemma: An anonymous tip that a certain individual is armed is too serious to ignore but is insufficient by itself to justify a frisk. What will the officer do? Approach and question the subject, risking the violence that an immediate frisk might avert? Ignore the tip instead? I doubt that our citizenry would wish the latter course. However, “[fjourth amendment jurisprudence has long justified the exclusionary rule on the supposition that the prospect of illegally seized evidence becoming a legal nullity in court will deter police from effecting illegal seizures.” People v. Luedemann, 357 Ill. App. 3d 411, 432 (2005) (O’Malley, EJ., dissenting). The deterrence meant to flow from J.L. may take two different forms: the police may engage the subject without an immediate frisk (whatever the consequences) or not engage him at all. These courses are equally respectful of the fourth amendment but neither is desirable from the standpoint of citizen and officer safety.
For the foregoing reasons, I would affirm the trial court’s decision granting defendant’s motion to quash and suppress.