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SECOND DIVISION
May 4, 2004
(Nunc pro tunc March 9, 2004)

JUSTICE BURKE delivered the opinion of the court:

Following a bench trial, defendant Pawel Marchel was convictedof possession of a controlled substance and sentenced to 15 months'probation. On appeal, defendant contends that the trial courtimproperly denied his motion to quash arrest and suppress evidencebecause the investigatory stop was not justified. Defendant also contends that the police officer conducted an illegal searchbecause he did not have probable cause to arrest. For the reasonsset forth below, we reverse.

The following undisputed facts were presented at thesuppression hearing. Officer White testified that on January 22,2002, at approximately 4:55 p.m., he and his partner were onroutine patrol in a marked squad car in the area of 4815 WestFerdinand Street in Chicago. White had been assigned to thatparticular district for three years. He described the area as"highly drug infested" and stated that he had made close to 100drug arrests in the area. He observed defendant from about 50 feetaway. Defendant looked toward White's direction and made a"furtive" movement toward his mouth. White admitted that he didnot actually see an object, but stated that defendant's particularmovement caused him to suspect that defendant had made an attemptto conceal narcotics. White approached defendant and asked him howhe was doing. Defendant simply shrugged his shoulders. White thenasked defendant what he was doing in the neighborhood. Defendantagain shrugged his shoulders. White subsequently asked defendantif "he could open his mouth." Defendant complied, and Whiteobserved four bags containing suspect cocaine in defendant's mouthand subsequently arrested defendant.

Thereafter, the trial court denied defendant's motion to quasharrest and suppress evidence.

Following a stipulated bench trial, defendant was convicted ofpossession of a controlled substance and sentenced to 15 months'probation.

On appeal, defendant first contends that Officer White was notjustified in conducting an investigatory stop because he did notactually see defendant place any objects in his mouth or witnessdefendant commit any crimes.

Where the facts and the credibility of the witnesses are notin dispute, our review of a defendant's legal challenge to thedenial of his motion to quash arrest and suppress evidence is denovo. People v. Sorenson, 196 Ill. 2d 425, 431 (2001).

The fourth amendment to the United States Constitutionguarantees the "right of the people to be secure in their persons,houses, papers, and effects, against unreasonable searches andseizures." U.S. Const., amend. IV. Reasonableness under thefourth amendment generally requires a warrant supported by probablecause. People v. Flowers, 179 Ill. 2d 257, 262 (1997). However,under the limited exception to the warrant requirement recognizedby the Supreme Court in Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d889, 911, 88 S. Ct. 1868, 1884 (1968), where a police officerobserves unusual conduct which leads him reasonably to conclude inlight of his experience that criminal activity may be afoot, theofficer may briefly stop the suspicious person and make "reasonableinquiries" aimed at confirming or dispelling his suspicions. Seealso 725 ILCS 5/107-14 (West 2002) (codification of temporaryquestioning without arrest aspect of Terry). In order to make sucha stop, the officer must have a reasonable and articulablesuspicion that the person has committed, or is about to commit, acrime. Illinois v. Wardlow, 528 U.S. 119, 123-24, 145 L. Ed. 2d570, 576, 120 S. Ct. 673, 676 (2000). The facts supporting theofficer's suspicions should be considered from the perspective ofa reasonable officer at the time the situation confronted him(People v. Thomas, 198 Ill. 2d 103, 110 (2001)), and due weightmust be given to the specific reasonable inferences that theofficer is entitled to draw from the facts in light of hisexperience (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct.at 1883).

Based on the totality of the circumstances in the instantcase, we find that the investigatory stop was not justified becauseOfficer White failed to establish a reasonable and articulablesuspicion that defendant was involved in criminal activity. Here,White testified that defendant made a "furtive" movement toward hismouth when he saw White's squad car. According to his owntestimony, White did not actually see defendant place an object inhis mouth. Based on this observation alone, White failed toestablish a reasonable and articulable suspicion that defendantcommitted, or was about to commit, a crime and, therefore, was notjustified in conducting an investigatory stop.

Even assuming the investigatory stop was proper, Officer Whitedid not have the requisite probable cause to ask defendant to openhis mouth. In order to make a valid, warrantless arrest, a policeofficer must have probable cause. People v. Sims, 192 Ill. 2d 592,614 (2000). Probable cause to arrest exists when the facts knownto the officer at the time of the arrest are sufficient to lead areasonably cautious person to believe that the person arrested hascommitted a crime. People v. Love, 199 Ill. 2d 269, 279 (2002).The existence of probable cause depends upon the totality of thecircumstances at the time of the arrest. Sims, 192 Ill. 2d at 615.

We find the instant case similar to People v. Rainey, 302 Ill.App. 3d 1011 (1999). In Rainey, the arresting officer observed thedefendant "loitering" with a group of people in the parking lot ofa gas station in an area known for drug activity. The officerobserved the defendant place unknown items into his mouth. Theofficer called over to the defendant and, when he approached, theofficer placed one hand on the back of the defendant's head and theother on his throat and told him to open his mouth. The Raineycourt held the totality of the circumstances did not establishprobable cause to arrest because the defendant's furtive movementalone did not justify a warrantless arrest. Rainey, 302 Ill. App.3d at 1015.

Similar to Rainey, defendant's movement here, without more,did not justify a warrantless arrest. Like the defendant inRainey, defendant was not engaged in any criminal activity whenOfficer White approached him. Furthermore, defendant's movementtoward his mouth amounted to nothing more than ambiguous conduct inlight of the fact that White admitted that he did not see defendantplace anything in his mouth. Accordingly, defendant's "equivocal"conduct alone did not provide White with probable cause to justifythe warrantless search. See Rainey, 302 Ill. App. 3d at 1015.

In reaching our conclusion, we have considered Love, cited bythe State, but find it distinguishable from the instant case. InLove, the officers saw the defendant take part in what theybelieved to be a narcotics transaction where the defendant removedan item from her mouth and handed it to an individual in exchangefor money. Based on these observations, the supreme court heldthat the officers had probable cause to conduct a search incidentto a lawful arrest by ordering the defendant to spit out thecontents in her mouth. Love, 199 Ill. 2d at 280. Unlike the factsin Love, in the instant cases there was no lawful arrest beforeOfficer White asked defendant to open his mouth.

For the reasons stated, we reverse the judgment of the circuitcourt.

Reversed.

WOLFSON, P.J., and GARCIA, J., concur.