concurring in part and dissenting in part:
While I agree with the majority that the in-court identification of the defendant and the sack of bottlecaps and revolver found on the street should not be suppressed, I must dissent from the balance of the majority opinion.
My initial area of disagreement concerns whether or not the original seizure was a permissible stop which met the standards promulgated in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. In Terry, the Supreme Court held that there may be a brief, on-the-spot stop on the street and a frisk for weapons without probable cause so long as the police officer making the stop is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. (392 U.S. 1,21, 20 L. Ed. 2d 889,906, 88 S. Ct. 1868,1879-80.) In Illinois, the Terry exception to the probable cause requirement has been codified as permitting an officer to stop a person in any public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense. Such detention and temporary questioning are to be conducted in the vicinity of where the person was stopped. Ill. Rev. Stat. 1977, ch. 38, par. 107—14.
Contrary to the majority’s contention, the facts in the present case do not satisfy the requirements in Terry. The facts show that the officers heard a police broadcast that there had been an armed robbery a few blocks from where they were patrolling. The broadcast did not contain any description of the suspect. They turned onto Ayres and saw a black male walking towards them on the sidewalk. He was wearing a tan jacket and carrying an unidentified object in his hand. He was about Bis blocks from the 7-11 store. The defendant was engaged in no furtive behavior. He was merely walking on the sidewalk in a residential area where it was entirely reasonable for him to be. The defendant’s clothes were by no means suspicious.
The majority argues that because there was a robbery a couple of blocks away, this somehow transforms a commonplace situation into one in which the totality of the circumstances was adequate to enable the officers to reasonably infer that the defendant had committed an offense. This argument is refuted by the testimony of one of the officers himself. Officer Look testified that when he first saw the defendant walking he did not consider him a suspect. While the standard to be used in evaluating the propriety of a Terry stop is an objective analysis of the situation confronting the officer, it is highly probative that the circumstances were such that one of the officers involved in the incident admitted that at the time of the stop he did not consider the defendant to be a suspect. (See People v. Roberts (1971), 2 Ill. App. 3d 927, 274 N.E.2d 688.) I believe, therefore, that the circumstances, considered in their entirety, did not present the officers a situation in which they could reasonably infer that the defendant had committed an offense.
Nor does the initial stop meet the Terry standard as elaborated on in later cases such as United States v. Brignoni-Ponce (1975), 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574. The passage cited by the majority belies the majority’s argument that the initial detention met the standards for a Terry stop. The passage states that a brief stop of a suspicious individual is permitted. The point that must be emphasized is that at the time of the detention the defendant was not a suspicious individual. He was merely walking down a residential sidewalk at a little after midnight. There is nothing suspicious about such behavior. Nor did the defendant engage in any behavior which might arouse suspicion. As stated above, even Officer Look did not consider him a suspect at the time of the detention. The fact that the defendant was black and walking in a predominantly white neighborhood is not adequate to make a Terry stop.
The case at bar is similar to Reid v. Georgia (1980),_U.S_, 65 L. Ed. 2d 890, 100 S. Ct. 2752. In Reid, an agent of the Federal Drug Enforcement Administration (DEA) was on duty in a Georgia airport and observed two men carrying similar shoulder bags disembark from a plane. The two men were separated by several other passengers. As they proceeded through the concourse Reid occasionally glanced back at the second man. When they reached the main lobby of the terminal, they joined each other and left the terminal together. The DEA agent approached them, identified himself as an agent and asked them to show him their airline ticket stubs and identification, which they did. The agent then asked them if they would agree to return to the terminal and consent to a search of their persons and their shoulder bags. The agent testified that they agreed, but as they entered the terminal, Reid began to run and, before he was apprehended, abandoned his shoulder bag. The bag, when recovered, was found to contain cocaine. Reid moved to suppress the cocaine and the Supreme Court held that it should have been suppressed. The court held that although (1) the defendant had arrived from Fort Lauderdale, a principal place of origin for cocaine sold in this country, (2) he arrived in the morning, when law enforcement was diminished, (3) defendant and his companion appeared to be trying to conceal the fact they were together, and (4) they had no luggage other than shoulder bags, this was not adequate to justify a Terry stop. The court held that a large percentage of travelers could fit this description and that the agent’s belief that defendant and his companion were trying to conceal the fact they were travelling together was an inarticulable hunch which could not justify a Terry stop.
The case at bar is similar in that the defendant was simply walking down a residential street, wearing normal attire, and engaging in no furtive or suspicious behavior. If the circumstances in Reid did not justify a Terry stop, then neither did the circumstances in the present case.
There is no doubt that the police had the right to go up to the defendant and talk to him. Police officers have the liberty possessed by every other citizen to address questions to other persons. However, ordinarily the person addressed has an equal right to ignore his interrogator and walk away. (United States v. Mendenhall (1980),-U.S. -, 64 L. Ed. 2d 497, 100 S. Ct. 1870.) In the instant case, however, the police trained their weapons on the defendant as they exited the police car and approached him. The defendant certainly could not ignore his interrogators and walk away. Therefore, this was more than a casual interrogation, it was a detention which, as previously shown, did not satisfy the requirements in Terry or any of its progeny.
The majority’s reliance on People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537, People v. Sanford (1976), 34 Ill. App. 3d 990, 341 N.E.2d 453, and People v. Thomas (1973), 9 Ill. App. 3d 1080, 293 N.E.2d 698, is inapt. Although the courts approved the actions of police officers in stopping the defendants in those cases, thereby superficially supporting the majority’s position, these cases are distinguishable on their facts. In McGowan, the police stopped the defendant when they found him walking late at night in an industrial area which normally would have been deserted. He was in fact in an odd place at an odd time. In the instant case, the defendant was simply walking in a residential neighborhood. This is not an unusual place for a person to be, nor was the time so late that one would not expect anyone to be out walking.
In Sanford, a gas station had been robbed and the arresting officers were driving towards the station when they saw a van speeding away from the station. This is significantly different from the instant case, where the defendant was merely strolling down a residential street.
In Thomas, the officers had received a radio message of a woman screaming for help on the 10th floor of a building. When they arrived at the lobby where everyone was well dressed, a male ran past them from the vicinity of the stairway, shabbily dressed and panting and sweating. That situation is a far cry from the one in the case at bar. In the instant situation, the defendant was dressed in normal attire and was simply walking in a residential neighborhood.
Clearly, if the original detention was improper, then continued detention to take the defendant back to the 7-11 store against his will was improper. The question then arises as to whether or not the defendant voluntarily consented to accompany the officers to the 7-11 store. I disagree with the. majority’s holding that the defendant voluntarily consented.
Whether the defendant’s consent was voluntary is a fact which must be decided from the totality of the circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041; People v. Cole (1977), 53 Ill. App. 3d 711, 368 N.E.2d 1308.) Consent is a factual matter to be determined in the first instance by the trial court, and the trial court’s determination will not be reversed unless clearly unreasonable. (People v. Denwiddie (1977), 50 Ill. App. 3d 184, 365 N.E.2d 978.) In the instant case, the totality of the circumstances clearly shows that the defendant’s consent was not voluntary. The defendant, who had been walking down the street, was stopped by two officers who jumped out of their squad car, drew their weapons, and trained them on him. One officer approached him and frisked him while the other officer kept his gun pointed at the defendant. Then, with a gun still trained on him, the defendant was requested to accompany the officers to the store. The defendant was not told that he had the right to refuse to accompany them. At the suppression hearing, the defendant testified that he accompanied the police “because the other officer still had his gun out.”
In People v. Householder (1980), 81 Ill. App. 3d 31, 400 N.E.2d 988, an officer accompanied Mrs. Householder to Householder’s apartment to obtain her possessions. Householder tried to close the door because of noises from outside, and the officer prevented him from closing the door and entered the apartment. It was disputed as to whether or not the defendant then invited the officer in. The court held that even if the defendant asked the officer to enter the apartment after he blocked the door, “this request is not equivalent to consent to enter the apartment. The blocking of the door is certainly more overt than the subtle coercion or implicit means of obtaining consent established by Schneckloth as the threshold of objectionable action.” 81 Ill. App. 3d 31, 34.
If blocking a door was coercive in Householder, the situation in the instant case, where the defendant has just been frisked and there is a gun trained on him, is much more coercive. “The whole atmosphere of the purported consent was, at best, one of submission or resignation to police authority.” People v. Clark Memorial Home (1969), 114 Ill. App. 2d 249, 254, 252 N.E.2d 546, 549.
The majority cites United States v. Mendenhall to support its contention that defendant voluntarily accompanied the officers to the 7-11 store. This reliance is misplaced. In Mendenhall, two Drug Enforcement Administration agents stopped the defendant at the Detroit Airport after she disembarked from a flight from Los Angeles, claiming that upon observing her she had displayed conduct characteristic of people smuggling narcotics. They approached her, identified themselves as Federal agents and, after questioning her briefly, asked her if she would accompany them to the airport DEA office for further questioning. She agreed to do so. At the office the agents asked her if she would allow them to search her person and handbag. They informed her she could decline the search and she responded “go ahead” and gave them her purse. A female police officer, called in to conduct the search, again asked her if she consented to the search, and she replied that she did. The search resulted in the agents finding heroin. Defendant’s motion to suppress was denied by the trial court, and the court of appeals reversed. In reversing the court of appeals and affirming the trial court, the Supreme Court held that the defendant had voluntarily consented to the search.
The facts in the instant case are in markéd contrast to Mendenhall. As stated earlier, the defendant was coerced into returning to the 7-11 store in that there was a gun trained on him. In fact, the court in Mendenhall specifically mentions that “8 8 * a person has been ‘seized’ within the meaning of the Fourth amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 8 8 8 the display of a weapon by an officer 8 8 °.” Therefore, under the totality of the circumstances of this case, the defendant’s consent to accompany the police to the store was not voluntary. The defendant undoubtedly felt he had to accompany the officers regardless of the reason they asked him.
Assuming for the sake of argument that the circumstances did justify a Terry stop, if the defendant did not accompany the officers back to the 7-11 store voluntarily, then I believe the officers could not legally force the defendant to accompany them. For purposes of analysis, the occurrences in the instant case must be split into two separate time frames — the occurrence leading up to the Terry stop and what happened after the stop. As stated previously, an officer can make a Terry stop only if the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. After the stop is made and the suspect has been questioned and frisked for weapons, one of two things can happen. First, the officer can find that there is probable cause the suspect committed the crime, in which case the officer can arrest him. Second, the officer can find there is not probable cause, in which case the officer must release the defendant. In the instant case, there is nothing in the record which would justify the officers finding probable cause that the defendant committed the crime. The circumstances leading to the stop were innocuous, and certainly none of the answers which the defendant gave were adequate for the officers to find probable cause. Upon frisking the defendant, the officers found no weapons. Therefore, the officers were obligated to release the defendant and could not force him to return to the store with them.
The majority would add a third possibility to the above-mentioned dichotomy. The majority opinion adds the possibility that although an officer doesn’t find probable cause subsequent to the Terry stop, he can continue to detain the defendant and in fact can force him to accompany the officers back to the scene of the crime. There is no precedent for such a holding in Illinois. Neither can a justification be found from Terry. In Terry, the court held that a limited intrusion on a person’s liberty is permissible under certain circumstances. To force a person to accompany police officers back to the scene of the crime is a much more severe curtailment of the persons liberty, indistinguishable for all practical purposes from an arrest. No support for such a severe curtailment of a person’s liberty in the absence of probable cause can be found in Terry.
Neither can support be found in Illinois law. In fact the statute codifying the standards required for a Terry stop prohibits the act of forcing someone to return to the scene of the crime under the aegis of a Terry stop. The statute reads “* ° * Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.” (Ill. Rev. Stat. 1977, ch. 38, par. 107—14.) There is no way that transporting someone to the scene of the crime a couple of blocks away can be considered questioning in the vicinity of where he was stopped.
For this reason the majority’s reliance on a District of Columbia case, District of Columbia v. M.M. (D.C. App. 1979), 407 A.2d 698, is misplaced. Even apart from the limiting language of the statutory provision in Illinois, I believe the court misanalyzed the fact situation in that case. In M.M., the police officers had a description of the robbers from an eyewitness. This description was broadcast to an officer who picked up the defendants because they matched the description. The officer told them they matched the description of two men who had committed a robbery and advised them he would transport them back to the scene of the crime. Just before transporting them, he frisked them. The D.C. court held that although there was no probable cause, it was a legitimate Terry stop and that the circumstances warranted this intrusion on their liberty. While I agree that it was proper for the officer to transport the defendants back to the scene of the crime, I find it proper for a different reason than the D.C. court. I believe that when the officer stopped the defendants because they matched an eyewitness description, probable cause existed and so it would have been permissible to arrest them. I disagree with the court’s characterization of this act as no more than a natural part of an investigative stop under Terry and find no rationale for it.
In any event, the Illinois statute precludes the adoption of this case in Illinois. Rather, probable cause is a requirement in any situation in which a defendant’s liberty is curtailed to the extent necessary in transporting a suspect back to the scene of a crime against his will. Because there was no probable cause in the case at bar, it was improper to take the defendant back to the 7-11 store against his will.
Because the defendant was improperly stopped and he did not voluntarily accompany the officers back to the 7-11 store, it is clear that defendant’s clothes, the currency found on defendant, the out-of-court identification, and his fingerprints taken after his arrest are fruits of the poisonous tree and must be suppressed.
The sack of bottlecaps and revolver were found when, after the defendant was arrested, Officer Look returned to the place where he first stopped the defendant. Under a truck, he found the sack and gun. I agree with the majority these items should not be suppressed. Good police methodology would have resulted in the area around the robbery being searched for clues. Since the area where these articles were found was within one block of the store, the police would have searched it as a matter of course. Therefore, they are not the result of the wrongful detention and should not be suppressed. I also agree with the majority that under United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537,100 S. Ct. 1244, the in-court identification is not suppressible.