dissenting:
The crucial facts in this case are not in dispute. While the police were executing a search warrant at a residence in Dixon, the defendant drove his car into the driveway of that residence. Before the defendant exited his vehicle, a police officer approached his car. The police officer ordered the defendant to show him his hands. The defendant did not; instead, he looked through the center console of his car. When the defendant failed to comply with his orders, the police officer forcefully removed him from the car. The issue thus becomes whether the defendant’s constitutional rights were violated when he was forcefully removed from his car.
The fourth amendment does not prohibit all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 613, 105 S. Ct. 1568, 1573 (1985). In Terry v. Ohio, 392 U.S. 1, 21-22, 30, 20 L. Ed. 2d 889, 905-06, 911, 88 S. Ct. 1868, 1879, 1884-86 (1968), the United States Supreme Court determined that in certain narrowly drawn instances, a law enforcement officer may stop a person without probable cause for arrest if the officer has a reasonable and articulable suspicion that the person might be involved in criminal activity. If the officer has such a reasonable and articulable suspicion, he may also conduct a protective frisk of the suspect’s outer clothing if he reasonably believes that the suspect might be armed and dangerous. Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.
In Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990), the Supreme Court applied the Terry stop rule to “protective sweeps.” A protective sweep allows officers to conduct a search of a home without probable cause solely for the purpose of officer protection “as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime.” Buie, 494 U.S. at 333, 108 L. Ed. 2d at 285, 110 S. Ct. at 1098. Because the “risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter,” officers may take “steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Buie, 494 U.S. at 333, 108 L. Ed. 2d at 285, 110 S. Ct. at 1098. The Supreme Court stressed that this intrusion be “no more than necessary to protect the officer from harm,” and “that the arresting officers are permitted in such circumstances to take [only] reasonable steps to ensure their safety after, and while making, the arrest.” Buie, 494 U.S. at 333-34, 108 L. Ed. 2d at 286, 110 S. Ct. at 1098. The Supreme Court held that a protective sweep should “last[ ] no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335-36, 108 L. Ed. 2d at 287, 110 S. Ct. at 1099. The Supreme Court further explained that when there are “articulable facts which, taken together with rational inferences from those facts,” would lead a reasonably prudent officer to believe that the broader area poses a danger to those on the arrest scene, he may conduct a protective sweep of the area surrounding the location of the arrest. Buie, 494 U.S. at 334, 108 L. Ed. 2d at 286, 110 S. Ct. at 1098.
In United States v. Maddox, 388 F.3d 1356, 1362 (10th Cir. 2004), the Tenth Circuit Court of Appeals extended the rationale of Buie to detentions taking place outside of a house in which an arrest is occurring. Based on the facts set forth by the majority in discussing Maddox, the Tenth Circuit determined that the defendant’s constitutional rights had not been violated. Maddox, 388 F.3d at 1368. After setting forth the law in Buie, the reviewing court addressed whether the area in which the defendant had been detained was part of the “arrest scene.” Maddox, 388 F.3d at 1361-63. The reviewing court explained that, in making this determination, it would consider the same concerns that justify protective sweeps as outlined in Buie. Maddox, 388 F.3d at 1362. Namely, whether such sweeps protect officers from potentially dangerous individuals who may be present nearby. Maddox, 388 F.3d at 1362-63. The reviewing court therefore concluded that when drawing the boundaries of the arrest scene in an individual case, it was proper to consider the reasonable threats posed to the officers. Maddox, 388 F.3d at 1363. As such, the court held “that law enforcement officers may only detain individuals on the scene of the arrest who are not within the ‘immediately adjoining’ area of the arrest if the officers ‘possess a reasonable belief based on specific and articulable facts[,]’ that the individual poses a danger to them.” Maddox, 388 F.3d at 1363, quoting Buie, 494 U.S. at 337, 108 L. Ed. 2d at 288, 110 S. Ct. at 1099-1100.
I agree with the analysis set forth in Maddox that, in the interests of officer safety, police may detain people outside an area where a search warrant is being executed. Such protective detentions may be proper if (1) the police had a reasonable and articulable suspicion of potential danger to the executing officers; (2) the protective detention is no more than necessary to protect the officers from harm; (3) the police officers take only reasonable steps to ensure their safety during the execution and (4) the protective detention lasts no longer than is necessary to dispel the reasonable suspicion of danger or to execute the warrant and depart the premises. See Buie, 494 U.S. at 333-36, 108 L. Ed. 2d at 285-88, 110 S. Ct at 1097-99; Maddox, 388 F.3d at 1367-68.
Turning to the facts of the instant case, it is apparent that the defendant’s actions gave the police a reasonable and articulable suspicion that their safety was in jeopardy. The defendant drove into a driveway of a house at night where a search warrant was being executed. It was difficult to see the defendant and determine his intentions because he was wearing a wig and glasses that disguised his appearance. Several police officers then approached the defendant’s vehicle to determine what he was doing there. The defendant did not make any attempt to drive away. Although the police loudly instructed the defendant to show them his hands to verify that he was not holding a weapon, the defendant did not. Rather, the defendant searched through the center console of his car. As the defendant failed to respond to several police commands and instead continued to search through his car, the police officers had but a few seconds to determine whether the defendant was reaching for a weapon. Indeed, based on the situation with which they were confronted, it would have been extremely difficult for the police to conclude that the defendant was reaching only for something innocuous. Based on all of the above-delineated circumstances, the police officers were justified in removing the defendant from his vehicle in order to ensure officer safety.
The record further reveals that after the police removed the defendant from his vehicle, they took reasonable steps to protect both the defendant’s safety and their own. See Maddox, 388 F.3d at 1367-68. The officers placed the defendant on the ground and handcuffed him. Furthermore, shortly after the defendant was removed from his vehicle, he spoke, and the arresting officer could smell alcohol on the defendant’s breath. Because the arresting officer knew that the defendant was younger than 21, he then had probable cause to arrest the defendant and search the defendant’s vehicle. See People v. Bailey, 159 Ill. 2d 498, 506-07 (1994) (alcohol-related offense created a valid basis for search of defendant’s vehicle incident to an arrest). The evidence subsequently recovered from the defendant’s vehicle was proper and should not have been suppressed. Bailey, 159 Ill. 2d at 506-07.
In so finding, I note that the defendant’s conduct in Maddox that justified the search was more egregious than that in the instant case. Conversely, the actions of the defendants in Cole and Clay, two cases upon which the trial court relied in granting the defendant’s motion to suppress, did not rise to the level of the defendant’s conduct in this case. In neither of those cases did the defendant do anything that could have been construed as threatening to the police. See Clay, 640 F.2d at 159 (defendant knocked on door where police were executing search warrant and did nothing suspicious other than hesitate in complying with police officer’s commands); Cole, 628 F.2d at 898 (defendant did nothing suspicious other than drive his truck to area where police were about to execute search warrant). However, rather than comparing the facts of the instant case to the cases relied on by the trial court, this court must analyze the propriety of the trial court’s ruling based on the totality of the circumstances of the case herein. See People v. Moss, 217 Ill. 2d 511, 518 (2005) (reasonableness of a search is measured in objective terms by examining the totality of the circumstances). Based on the totality of the circumstances herein, the defendant’s constitutional rights were not violated when the police removed him from his vehicle.
Furthermore, I believe to be without merit the defendant’s argument that reversing the trial court’s ruling herein would “establish a new exception to the warrant requirement which would allow police to search and seize anyone and anything anywhere in the area during the time the police are executing a search warrant.” Police are not given free rein to search anyone who comes near while they execute a search warrant. If a person enters an area where a search warrant is being executed, either that person can leave (see People v. Smith, 331 Ill. App. 3d 1049, 1054 (2002)), or he can comply with the police officers’ requests to verify that he is not a threat to them. However, if he does neither, and if the police have a reasonable and articulable suspicion of potential danger to themselves, the police may take reasonable measures to ensure that he is not a threat to them. See Maddox, 388 F.3d at 1367-68. Because the defendant herein did not make any effort to leave or to cooperate with the requests of the police, and because the defendant’s actions gave the police a reasonable and articulable concern about their safety, the police were justified in detaining him to verify he was not a threat to their safety.
As this case involved a temporary seizure supported by a reasonable and articulable suspicion of potential danger to the officers, the trial court erred in granting the defendant’s motion to suppress. Accordingly, the judgment of the circuit court of Lee County should be reversed and the cause remanded for additional proceedings.