dissenting:
I respectfully dissent. I would reverse the circuit court’s rulings that suppressed the five bullets and the revolver seized from defendant’s car and the one bullet seized from defendant’s pocket. I believe the arresting officers, upon observing the plain-view bullet in the car, had reasonable suspicion to stop defendant and conduct protective searches for weapons on defendant’s person and in the passenger compartment of his car. Then, the revolver found under the front-passenger floor mat gave the police probable cause to arrest defendant.
I do not agree with the majority’s analysis of this case as a search incident to a lawful arrest and conclusion that Gant is controlling. Rather, I believe that this case involved a brief investigative detention, or Terry stop, and is governed by Long, which held that police officers may search the passenger compartment of a car when no arrest has been made if they reasonably believe that the suspect is dangerous and may gain immediate control of weapons. Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481.
Where a motion to quash arrest or suppress evidence turns on a legal question of reasonable suspicion or probable cause, we apply de novo review. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). When an officer observes “possibly criminal behavior,” he may make an investigatory stop without probable cause and make “reasonable inquiries” to confirm or dispel his suspicions. Terry, 392 U.S. at 22, 30, 20 L. Ed. 2d at 907, 911, 88 S. Ct. at 1880, 1884. For a stop to be justifiable under Terry, the officer must present specific, articulable facts which would cause a reasonable person to fear for his safety or the safety of others. Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; People v. Galvin, 127 Ill. 2d 153, 174 (1989). Because an officer often must make quick judgments, the reasonableness of his conduct must be judged on the basis of his responsibility to prevent crime and catch criminals. People v. Stout, 106 Ill. 2d 77, 86-87 (1985). Reasonableness is measured in objective terms by examining the totality of the circumstances. People v. Moss, 217 Ill. 2d 511, 518 (2005).
Officer Alcott’s testimony at the suppression hearing established the following sequence of events. First, the police officers approached defendant’s car on the evening in question to investigate why he was blocking a parking lot entrance. The police officers observed, in plain view, one bullet in a plastic bag on the center console in defendant’s car. The police officers ordered defendant and his two passengers out of the car, handcuffed them, and brought them to the front of the car. Officer Alcott removed the plastic bag from the console and saw that it actually contained five bullets. Officer Alcott then performed a protective patdown search on defendant and found one bullet in his pants pocket. Detective Johnson, who had searched the two passengers, then searched defendant’s car and found the revolver underneath the front-passenger floor mat. Defendant and the two passengers were transported to the police department.
According to the record, Officer Alcott was never directly questioned about when defendant was placed under arrest. Although the majority seems to attribute certain statements to Officer Alcott about defendant and his passengers being “in custody,” the record indicates that those words were actually spoken by defense counsel during his questioning of Officer Alcott. Moreover, counsel never clarified whether “in custody” meant that defendant was placed under arrest or merely detained during the investigatory stop. Consequently, I do not conclude from the vague statements in the record about defendant being “in custody” that the police officers arrested him right after ordering him out of his car based upon observing the plain-view bullet on the console.
I agree with the majority that the officers’ initial approach to defendant’s car and question about blocking the entrance did not implicate the fourth amendment. I disagree, however, with the remainder of the majority’s analysis because I believe the situation progressed into a lawful Terry stop when the officers saw the plain-view bullet in defendant’s car. Even though the plain-view bullet was not contraband per se, the totality of the circumstances here gave the officers a reasonable, articulable suspicion to justify a stop.
Specifically, defendant’s conduct on the evening in question, i.e., sitting in his car with another passenger and blocking a parking lot entrance while his car engine was running, had drawn the attention of the officers and prompted them to approach him and make inquiries. This meant that the officers had to drive their vehicle off the street, enter the parking lot, which had little or no pedestrian or vehicular traffic, and leave the relative safety of their car to question defendant. Once the two officers were standing at defendant’s car, which now contained three men, the officers were in a vulnerable position.
Contrary to defendant’s characterization of the situation as “benign,” it is reasonable to infer from the undisputed facts that the officers believed their safety was in danger because the presence of the plain-view bullet raised their reasonable suspicion that a gun might also be in the passenger compartment of defendant’s car. Stack, 244 Ill. App. 3d at 397, citing Wright, 104 Nev. at 523, 763 P.2d at 50. See also Garcia Garcia, 169 Ariz. at 531-32, 821 P.2d at 193 (because bullets strongly imply that guns are nearby, the bullets on the front seat of the car and the defendants’ conduct justified a protective search of the passenger compartment of the car); People v. Kantowski, 98 Ill. 2d 75, 83 (1983) (“it would have been profoundly foolish for the officer not to be concerned that a man carrying a 10-inch knife on a city street may have other weapons”). Defendant argues that the plain-view bullet cannot justify a protective search because ammunition can be carried in a car legally. Assuming arguendo that defendant possessed the ammunition lawfully, the validity of a Terry search does not depend on whether a weapon is possessed in accordance with state law. Long, 463 U.S. at 1052 n.16, 77 L. Ed. 2d at 1222 n.16, 103 S. Ct. at 3482 n.16.
Rational inferences from the undisputed facts warranted the officers’ reasonable belief that defendant and his passengers were dangerous and could gain immediate control of weapons. The officers needed to act quickly to maintain the status quo and protect themselves from the danger posed by the possibility that a readily accessible gun was in the car. The officers could not have turned their backs on the occupants of the car, and it would have been unreasonable for the officers to wait and see what the occupants of the car might do next. Furthermore, it would have been absurd for the officers to remain in such a vulnerable position while questioning defendant and his passengers about their possible status as valid FOID cardholders and allowing them to rummage about in their car in order to retrieve any such documentation. “It is in precisely such a situation, where there are reasonable grounds to believe that there is a need for immediate investigatory action, that the constitutional standards and safeguards of Terry v. Ohio come into play.” Galvin, 127 Ill. 2d at 172.
“[I]nvestigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Long, 463 U.S. at 1047, 77 L. Ed. 2d at 1218, 103 S. Ct. at 3480. When an officer has properly stopped an individual and reasonably believes, based on specific and articulable facts, taken together with rational inferences from those facts, that the suspect is dangerous and may gain immediate control of a weapon, then the officer may search the passenger compartment of a vehicle, limited to those areas in which a weapon may be placed or hidden. Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3480-81.
Because the encounter here had evolved into a lawful Terry stop, the officers could order defendant and his passengers out of their car pending completion of the stop without violating the protections of the fourth amendment. Sorenson, 196 Ill. 2d at 433; People v. Gonzalez, 184 Ill. 2d 402, 413-14 (1998). Furthermore, handcuffing defendant and the two passengers during their detention did not convert this Terry stop into an arrest because it was necessary for the officers’ protection while they investigated their reasonable suspicion that a gun might be concealed either on the car occupants or in the passenger compartment of the car. People v. Starks, 190 Ill. App. 3d 503, 509 (1989). Here, the scope of the officers’ search was limited to that necessary for the discovery of potential weapons endangering them, where they performed protective patdown searches of defendant and the passengers and then searched the passenger compartment of the car. After discovering the concealed revolver under the front-passenger floor mat, the officers had probable cause to arrest defendant for violating the law by carrying an immediately accessible firearm in his car.
The majority argues that after defendant and the passengers were outside the car and handcuffed, they were not dangerous and could not have gained immediate control of the revolver under the front-passenger floor mat. This same argument, however, was refuted in Long, where the Supreme Court noted that “if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.” Long, 463 U.S. at 1052, 77 L. Ed. 2d at 1221, 103 S. Ct. at 3482.
Furthermore, the majority’s reliance on Gant is misplaced. In Gant, the Supreme Court upheld the suppression of cocaine found in the search of the defendant’s car while he was handcuffed and locked in the back of a police car after his arrest for driving with a suspended license. Gant, 556 U.S. at 335, 173 L. Ed. 2d at 491, 129 S. Ct. at 1714. Gant, which addressed only a rule automatically permitting a search when the driver or an occupant of a car is arrested, is not applicable to the protective sweep situation at issue here. See Gant, 556 U.S. at 346-47, 173 L. Ed. 2d at 498, 129 S. Ct. at 1721 (distinguishing Long); Gant, 556 U.S. at 352, 173 L. Ed. 2d at 502, 129 S. Ct. at 1724 (Scalia, J., concurring) (clarifying that the holding in Long is undisturbed by Gant); United States v. Vinton, 594 F.3d 14, 24 n.3 (D.C. Cir. 2010) (distinguishing Gant in the case of a protective sweep search); United States v. Griffin, 589 F.3d 148, 154 n.8 (4th Cir. 2009) (accord).
I also disagree with the majority’s determination that the State attempted to advance a new theory on appeal. The majority speculates that the State, when it moved the circuit court to reconsider the suppression of the revolver, tried to justify the car search by substituting a new, Terry-stop rationale for the rationale of a search incident to a lawful arrest. The record, however, establishes that the State timely argued the Terry-stop justification during the first hearing on defendant’s motion to suppress. Specifically, after the evidence was heard, the State argued that although the officers’ initial approach to defendant’s car did not constitute a stop, the situation became a stop when the officers observed the plain-view bullet in the car, “ask[ed] everyone out of the [car] for their safety,” and reasonably suspected that a gun could also be in the car. Furthermore, when the suppression hearing was continued on a later date, the State again argued that the officers acted reasonably and legally upon seeing the plain-view bullet in the car by ordering everyone out of the car and searching for a gun because it was reasonable to believe the presence of ammunition indicated the presence of a gun.
The circuit court even acknowledged the State’s Terry-stop rationale, finding that after the officers saw the plain-view bullet, they removed the occupants of the vehicle, handcuffed defendant and did “a Terry pat-down search” of defendant. In addition, at the final hearing before the circuit court, where defendant asked the court to reconsider its ruling that the bullets were lawfully seized, the State again argued that the seizure of the plain-view bullet was constitutional and that, “under Terry,” the pat down of defendant and the seizure of the bullet in his pocket was also constitutional.
Although the circuit court erroneously presumed that the State’s theory to justify the car search was based on the rationale of a search incident to a lawful arrest, the State has not forfeited the Terry-stop justification and is not bound by the circuit court’s erroneous presumption on appeal. Furthermore, unlike the circuit court’s factual findings, its presumption concerning the State’s theory to justify the car search is not entitled to deference by this court. See Sorenson, 196 Ill. 2d at 431.