dissenting:
I respectfully dissent. Under the circumstances in the present case, I believe that the investigatory stop of the defendant was reasonable. Additionally, the subsequent pat-down search of the defendant was proper and did not exceed the scope of Terry.
The majority has correctly stated the standard of review of a trial court’s ruling on a motion to suppress. We may reverse the trial court’s findings of historical fact only if they are against the manifest weight of the evidence. Sorenson, 196 Ill. 2d at 430-31. However, we review de novo the ultimate conclusion as to the existence of probable cause or reasonable suspicion. Sorenson, 196 Ill. 2d at 431.
In the present case, the trial court found that the Terry stop was justified based on (1) the defendant walking out from behind a Dumpster at 3:30 in the morning and (2) the officer’s “clear” testimony that this was a high-crime area, that there had been three car burglaries in this area in the previous month, and that he had been at the apartment complex on numerous occasions for various crimes. Additionally, the trial court found that the pat-down of the defendant was reasonable under the circumstances. In so ruling, the trial court emphasized that the defendant was unable to indicate where he was going or where he lived. Furthermore, Officer Biecker testified that in his experience, car burglars often have objects that can be used as weapons. The trial court found this testimony to be particularly “credible.”
Finally, the trial court determined that the pat-down of the defendant did not exceed the bounds of a Terry stop. Again, the trial court emphasized the credibility of Officer Biecker’s testimony. The trial court noted that Officer Biecker testified that he felt in the defendant’s pocket an object that was about five to six inches long, and in attempting to determine whether it was a weapon, he determined, based on his experience, that it was drug paraphernalia. The trial court found that, at that point, Officer Biecker was justified in removing the crack pipe from the defendant’s pocket because he reasonably believed it to be drug paraphernalia. Furthermore, the trial court noted:
“It’s not as though he concluded that it wasn’t a weapon and he continued to search, but it was in determining whether or not the object was, in fact, a weapon which could be used against him that he came to the conclusion that it was drug paraphernalia.”
As such, it is clear that the trial court believed that the Terry stop and pat-down were justified by a reasonable suspicion of criminal activity and a reasonable concern for the safety of the officer. A reviewing court must accord great deference to the trial court’s factual findings and credibility determinations. People v. Davis, 352 Ill. App. 3d 576, 579 (2004). This deferential standard is grounded in the reality that the trial court is in a superior position to determine and weigh the credibility of witnesses, observe the witnesses’ demeanor, and resolve conflicts in the witnesses’ testimony. Sorenson, 196 Ill. 2d at 431. Accordingly, based on the record before us, the trial court’s findings, and its determination that Officer Biecker’s testimony was clear and credible, are not against the manifest weight of the evidence.
Nonetheless, the ultimate conclusion of the trial court, as to the existence of probable cause or reasonable suspicion, is reviewed de novo. Sorenson, 196 Ill. 2d at 431. To justify an investigatory stop, the police officer must be able to point to specific and articulable facts that, taken together with rational inferences therefrom, reasonably warrant the intrusion. Terry, 392 U.S. at 20-21, 20 L. Ed. 2d at 905-06, 88 S. Ct. at 1879-80. The facts should not be viewed with analytical hindsight, but instead should be considered from the perspective of a reasonable officer at the time that the situation confronted him or her. People v. White, 331 Ill. App. 3d 22, 27 (2002); People v. Thomas, 198 Ill. 2d 103, 110 (2001). In evaluating the validity of an investigatory stop, the court must consider the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 8, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989). “ ‘[A]n objective standard is used in determining whether the facts and circumstances known to the officer at the time of the stop would warrant a person of reasonable caution to believe a stop was necessary to investigate the possibility of criminal activity. [Citations.]’ ” People v. Chavez, 327 Ill. App. 3d 18, 31-32 (2001).
In the present case, at the hearing on the defendant’s motion, Officer Biecker articulated specific facts that reasonably warranted the investigatory stop. First, Officer Biecker testified that the defendant emerged from behind a Dumpster in the parking lot of an apartment complex at 3:30 a.m. The majority states that the evidence presented at the hearing did not establish where the Dumpster was located within the apartment complex parking lot. Consequently, the majority declined to conclude whether the defendant had suspiciously used the Dumpster to conceal himself or whether the defendant’s emergence from behind the Dumpster was merely a consequence of the Dumpster being in a location that incidentally blocked the officer’s view of the defendant as the defendant proceeded along his way. However, Officer Biecker specifically testified that the Dumpster was located at the corner of the 2035 building, next to the parking lot. Officer Biecker further testified that he is very familiar with this area of the apartment complex. Finally, Officer Biecker testified that he believed it was “suspicious that [the defendant] was coming out from behind the [D]umpster at that time of night.” As such, contrary to the majority, I believe that Officer Biecker’s testimony, concerning his familiarity with the apartment complex and his belief that the defendant’s emergence from behind the Dumpster was suspicious, adequately supports a conclusion that the defendant’s conduct was suspicious. See White, 331 Ill. App. 3d at 27 (the facts should be viewed from the perspective of a reasonable officer at the time that the situation confronted him).
In addition to his testimony concerning the defendant’s suspicious emergence from behind the Dumpster, Officer Biecker testified that there was a history of car burglaries, thefts, burglaries, and robberies in the apartment complex. Officer Biecker testified that in the previous three years, he had been at the apartment complex twice a week taking reports of thefts and burglaries and other complaints. He also testified that there were three reported vehicle burglaries in that parking lot during the month preceding the defendant’s arrest. Based on these facts, Officer Biecker testified that he believed that the defendant may have been in the area to commit a burglary. The trial court found the officer’s testimony to be “clear” on these issues. Although the defendant may have been an innocent resident or visitor of the apartment complex, the unusual hour of the day, the defendant’s emergence from behind a Dumpster, and his presence in a high-crime area created an objectively reasonable suspicion that the defendant either had just committed or was about to commit a burglary. See Chavez, 327 Ill. App. 3d at 31-32. As such, the investigatory stop of the defendant was reasonable under the circumstances. See People v. Lockett, 311 Ill. App. 3d 661, 667 (2000) (police officer may conduct a brief investigatory stop when he has a reasonable, articulable suspicion that the person he is stopping is about to commit or has committed a crime).
Additionally, the pat-down search of the defendant was proper. Under Terry, when an officer is justified in believing that the individual whose suspicious behavior he is investigating is armed and presently dangerous to the officer or other persons, the officer may conduct a pat-down search to determine whether the person is in fact carrying any weapons. Sorenson, 196 Ill. 2d at 432. In the present case, the defendant exhibited suspicious behavior. The defendant emerged from behind a Dumpster at an unusual hour. When Officer Biecker honked his horn at the defendant, the defendant continued walking in front of the patrol car without responding or turning around. Officer Biecker then exited his squad car and asked the defendant to stop. However, the defendant merely looked at Officer Biecker and continued walking. Next, Officer Biecker told the defendant to “come here,” at which time the defendant reluctantly walked toward the officer. When Officer Biecker asked the defendant where he was going, the defendant did not have any reasonable responses. At first, the defendant told Officer Biecker that he was going to his girlfriend’s apartment, but he was unable to provide a location. Then, the defendant said that he lived in one of the apartments in the complex, but he was unable to provide an address. Finally, when the defendant produced identification, it indicated that he lived approximately two miles away from the apartment complex. Officer Biecker repeatedly asked the defendant what legitimate business he had at the apartment complex, and the defendant did not respond.
Furthermore, Officer Biecker was justified in believing that the defendant was armed and presently dangerous. Officer Biecker testifled that there were many car burglaries, thefts, burglaries, and robberies in the apartment complex at issue. Officer Biecker testified that in his experience, burglars often carry tools or weapons with them, such as screwdrivers or center punches. He further testified these tools could be used as stabbing devices. Thus, it was reasonable for Officer Biecker to believe that he or others may be in danger. See McGowan, 69 Ill. 2d at 79 (officer justified in believing the defendant was armed and dangerous because it was likely that a person engaged in stealing another’s property would arm himself against the possibility that another person would appear unexpectedly and object). Moreover, the trial court specifically found Officer Biecker’s testimony that he was concerned for his safety to be “credible.” As such, the defendant’s suspicious behavior, coupled with the officer’s reasonable belief that car burglars often possess objects that can be used as weapons, justified the pat-down search of the defendant. See McGowan, 69 Ill. 2d at 78-79 (pat-down for weapons proper due to suspicious behavior and reasonable belief that the defendant was armed and dangerous).
Finally, the pat-down of the defendant did not exceed the bounds of Terry. A Terry search is strictly limited to only what is necessary for the discovery of weapons that might harm the officer. People v. Pratcher, 332 Ill. App. 3d 1063, 1067 (2002). If the search goes beyond those limits, it is no longer valid under Terry and its fruits will be suppressed. Pratcher, 332 Ill. App. 3d at 1067. As stated by our supreme court in People v. Mitchell, 165 Ill. 2d 211 (1995):
“[N]ot even all weapons are of easily discernable shape, particularly when covered by a layer of heavy clothing. However, in the context of a Terry stop and frisk, where an officer’s training and experience have led him reasonably to conclude that a perceived object is a weapon, seizure of that object has been upheld as valid. [Citations.] It is the officer’s ‘plain touch’ of the object which elevates his reasonable suspicion that the suspect might be armed to the necessary probable cause to believe that the suspect is concealing a weapon. [Citation.]
The same may be said of the officer’s tactile perception of contraband. When objects have a distinctive and consistent shape that an officer has been trained to detect and that officer has had previous experience in detecting such objects, his tactile perceptions can provide him with the same recognition that his sight would have provided. [Citations.] We caution that the officer’s belief must be objectively reasonable, in light of his past experience and training, and capable of verification. [Citation.] However, probable cause is probable cause, regardless of whether it develops from sight or touch.” Mitchell, 165 Ill. 2d at 227.
However, the “plain touch” doctrine “does not permit the search to exceed the initial intrusion. As soon as the officer is satisfied that an object is not a weapon, a further search to determine the nature or identity of that object is impermissible.” Mitchell, 165 Ill. 2d at 228. Illinois courts have frequently noted that objects that are not per se deadly weapons may be used in such a manner as to become deadly weapons. People v. Day, 202 Ill. App. 3d 536, 544 (1990), citing People v. Carter, 410 Ill. 462, 465 (1951), and People v. Van, 136 Ill. App. 3d 382, 384 (1985).
Applying these principles to the present case, the requirements for a seizure under the “plain touch” doctrine were met, and Officer Biecker’s seizure of the crack pipe was proper. Officer Biecker testified that, upon feeling the object in the defendant’s pocket, he thought the item was potentially a center punch, which could be used as a weapon. Under Terry, it was proper for Officer Biecker to manipulate the object in the defendant’s pocket in order to determine if it was a weapon or something that could be used as a weapon. In the process of determining whether it was a weapon, Officer Biecker determined that the item was a crack pipe. The trial court found this testimony “clear and credible.” As such, under the “plain touch” doctrine, it was proper for Officer Biecker to remove the crack pipe from the defendant’s pocket. See Mitchell, 165 Ill. 2d at 227.
The defendant argues, however, that Officer Biecker could not have immediately identified the object in his pocket as a crack pipe because he asked the defendant what the item was before he removed it. This argument is without merit. Officer Biecker testified that based on his experience and what he felt, the item was a crack pipe. The fact that Officer Biecker asked the defendant to identify the object, to possibly verify what the object was, does not change the fact that Officer Biecker’s sense of touch gave him probable cause to believe that the item was illegal drug paraphernalia. Moreover, when Officer Biecker asked the defendant what the object was, the defendant said that he did not know. Based on the defendant’s response, it was proper under Terry for Officer Biecker to remove the item from the defendant’s pocket to determine if it was a weapon or something that could be used as a weapon. See Day, 202 Ill. App. 3d 543-44.
Accordingly, upon removing the crack pipe from the defendant’s pocket, Officer Biecker had probable cause to arrest the defendant for possession of drug paraphernalia. The search of the McDonald’s apple pie box was proper as a search incident to arrest. The crack cocaine found in the pie box was lawfully obtained, and the trial court properly denied the defendant’s motion to quash and suppress.
Additionally, I note that, contrary to the majority, I do not find McGowan distinguishable from the instant case. The majority attempts to distinguish McGowan on several grounds. The majority states that contrary to the officer in McGowan, Officer Biecker articulated no facts to support a suspicion that the defendant had just committed or was about to commit a burglary. However, Officer Biecker testified that the defendant emerged from behind a Dumpster at an unusual hour in the parking lot of an apartment complex plagued by crime. These facts are sufficient to support a suspicion that the defendant had just committed or was about to commit a crime. Furthermore, the majority distinguishes McGowan because the defendants in that case were walking in an industrial and commercial area. Since the defendant in the present case was in the parking lot of a residential apartment complex, the majority believes that the defendant was not in an unlikely place at an unlikely time. On the contrary, I believe that emerging from behind a Dumpster at 3:30 a.m. in a deserted parking lot of an apartment complex establishes that the defendant was in an unlikely place at an unlikely time. Finally, McGowan is not distinguishable on the mere fact that the officers in that case testified that the defendants were dressed in black, indicative of involvement in some kind of surreptitious activity. In the present case, although Officer Biecker did not testify that the defendant was dressed in black, he did testify that the defendant was wearing a bulky winter jacket. Although this could be innocent as the arrest occurred in December, the bulky jacket could also indicate that the defendant was trying to conceal weapons that could be used to carry out a theft or burglary. As such, contrary to the majority, I believe that the holding in McGowan supports the conclusion that the trial court properly denied the defendant’s motion to quash arrest and suppress evidence.
For the foregoing reasons, I would affirm the judgment of the trial court.