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People v. Lockett, No. 2-98-1124

2nd District, 15 February 2000

JUSTICE THOMAS delivered the opinion of the court:

Following a bench trial, the defendant, Quincy L. Lockett, was convicted of unlawful possession of a controlled substance(720 ILCS 570/402 (a)(2)(A) (West 1998)) and resisting a peace officer (720 ILCS 5/31--1(a) (West 1998)). The trial courtsentenced him to 24 months' probation and 100 days in jail. The defendant appeals, contending that the trial court erred indenying his motions in limine to quash his arrest and suppress evidence.

At the hearing on the defendant's motions to quash arrest and suppress evidence, the defendant testified that he was arrestedon January 5, 1998, around 10:30 p.m. At that time, he lived at 585 West Lynne Road, apartment 10, in Lombard, Illinois.He had been out walking prior to his arrest. When he returned to his apartment building, he went through a commonentrance door and saw a uniformed officer standing at another door. When the defendant was about four feet from theofficer, the officer asked the defendant what he was looking for and the defendant responded, "no one." The defendant thenturned around and began to go back out the door. However, the defendant heard footsteps behind him and began to run. Thedefendant claimed that the officer then tackled him, wrestled him to the ground, and sprayed mace in his face. The officerthen walked the defendant back to the squad car and told him he was under arrest. The officer then searched the defendant'sperson and found a packet of drugs in his pocket.

Du Page County Sheriff's Deputy Juan Marquez testified that he responded to a complaint that loud noise was coming fromapartment 18 at the Willow Lakes Apartments on the evening in question. Marquez noted that apartment 18 was on thesecond floor and apartment 10 was on the third floor. Marquez was familiar with apartment 18 because one week earlier atthe same apartment there had been a gang fight, which resulted in an aggravated battery. Deputy Marquez stated that, whilehe was speaking with the occupants of apartment 18 and telling them to turn down the music, the defendant walked byMarquez and passed the threshold of the apartment. The occupant of the apartment then stopped the defendant fromentering all the way and told the defendant to leave. The defendant stated that he wanted to talk to someone. The occupantagain asked the defendant to leave. The defendant then turned around and asked Marquez who he was. Deputy Marquezadvised the defendant that he was a police officer and asked the defendant to leave. The defendant walked out of theapartment and stood in the hallway in front of the apartment door. Marquez again asked the defendant to leave, but thedefendant refused. Marquez then told the defendant that he would walk him home.

Deputy Marquez further testified that, after he finished addressing the occupant of apartment 18, he turned around andasked the defendant where he lived. The defendant told the deputy that he lived next door. Marquez noticed that thedefendant's pupils were dilated, he wavered while talking, and he smelled of alcohol. Marquez concluded that the defendantwas either drunk or high on something. When the defendant started to walk away down a flight of stairs, Marquez followedbehind the defendant. As they walked down the stairs, Marquez asked the defendant for his name and identification. Thedefendant refused to give his name and told the deputy that he did not have any identification. As the defendant traversedthe stairs, it appeared to Marquez that the defendant was trying to hide his left hand from view. The defendant was reachingacross his body and holding on to the left rail with his right hand.

When they got to the bottom of the stairs, the defendant turned to exit and that placed Deputy Marquez in front of thedefendant. At that point, the deputy again asked the defendant for identification, but the defendant did not have any.Marquez explained that he stopped at the exit because he thought that the defendant lived in the next-door apartment andyet they were leaving the building. As the defendant was standing in front of him, Marquez noticed that the defendant washiding his left hand behind him. When the deputy asked to see the defendant's hands, the defendant showed the deputy thedefendant's empty right hand. Fearing that the defendant had a weapon in his left hand, Marquez asked the defendant whatwas in his left hand. When the defendant refused to show it, Marquez reached for it, but the defendant moved his handaway. Marquez attempted "to control" the defendant's left hand. At that moment, the defendant made a sudden movementtoward his face with his left hand. Marquez thought that the hand was coming toward Marquez's face and that he was beingattacked. Marquez deflected the defendant's hand, and an object bounced off the defendant's cheek and rolled down hisshoulder. The object was a white rock substance. Marquez thought that it was cocaine. Before deflecting the defendant'shand, Marquez had not touched the defendant at any time.

When the defendant realized that he had lost control of the white object, he pushed Marquez and lunged at him. Marquezthen brought the defendant face down to the ground and informed him that he was under arrest. As the defendant continuedto struggle, Marquez reached for his handcuffs. At that moment, the defendant escaped from Marquez's grasp and ran forthe exit. Marquez, however, was able to apprehend the defendant, and Marquez again advised the defendant that he wasunder arrest. Marquez also informed him that if he continued to struggle Marquez would spray him with mace. Despite thiswarning, the defendant again escaped and tried to open a door to an inner corridor. However, Marquez was able to place hisfoot against the door to prevent the defendant from opening it all the way. Marquez then repeated his warning that if thedefendant continued to struggle the deputy would spray him with mace. Thereafter the defendant continued to resist, andMarquez sprayed him with mace. Marquez then handcuffed the defendant and placed him in a squad car.

Deputy Marquez testified on cross-examination that he noticed that the defendant had his left hand clenched when hewalked down the stairs. When they both reached the bottom of the stairs, the deputy asked to see what was in thedefendant's left hand, but the defendant refused to show it. Out of concern for his safety, the deputy then reached for thedefendant's left hand to control it. At that point, the defendant made a sudden move in an attempt to swallow the object inhis left hand. Marquez acknowledged that he did not note in his police report that he felt that the defendant was trying tostrike him when he made the sudden movement. He explained, however, that this was because he realized after the fact thatthe defendant's intention was to swallow the item. The deputy also explained that he stopped the defendant to talk to him atthe bottom of the stairs because he thought that the defendant lived next door yet they were leaving the building.

After hearing the above-mentioned evidence, the trial court denied the defendant's motions to quash arrest and suppressevidence. In so doing, the court noted that the two witnesses had testified to completely different versions of the incident.The court resolved the credibility issue in favor of Deputy Marquez, finding that his testimony was detailed, clear, andcredible. The court noted that the deputy gave the defendant two opportunities to leave the area before offering to escorthim out. At the time, the defendant appeared drunk or high and was hiding something from the deputy. No seizure occurredat the bottom of the stairs because the deputy never grabbed the defendant and only asked to see what was in the defendant'shand for his own safety. At that time, the deputy believed that the defendant was raising his right hand to strike the deputy.In the process of attempting to ward off the blow, an item that appeared to be a piece of rock cocaine fell to the ground. Atthat point, the deputy had probable cause to arrest the defendant.

On appeal, the defendant contends that the trial court erred in denying his motions to suppress. He maintains that theencounter between the defendant and Deputy Marquez was not consensual after the point that the defendant refused toprovide his name and identification. The defendant contends that the encounter was not justified as a valid investigativestop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), or as a legitimate exercise of a"community care-taking function" pursuant to People v. Murray, 137 Ill. 2d 382 (1990).

Generally, a trial court's ruling on a motion to quash arrest and suppress evidence will not be overturned on review unless itis manifestly erroneous. People v. Dilworth, 169 Ill. 2d 195, 201 (1996). However, de novo review is appropriate whenneither the facts nor the credibility of the witnesses is questioned. People v. James, 163 Ill. 2d 302, 310 (1994). If the trialcourt's determination of credibility in favor of a police officer is not against the manifest weight of the evidence, areviewing court will conduct a de novo review of the defendant's legal challenge under that officer's version of the events.People v. Gonzalez, 184 Ill. 2d 402, 412 (1998). As the movant, the defendant has the burden of proof to establish that asearch and seizure are unlawful or impermissible. People v. Scott, 249 Ill. App. 3d 597, 600-01 (1993).

The fourth amendment to the United States Constitution guarantees the "right of the people to be secure in their persons,houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. The touchstone of anyanalysis of an alleged intrusion depends on balancing the public interest against the individual's right to be free fromarbitrary interference by law officers. Gonzalez, 184 Ill. 2d at 413. A law enforcement officer does not violate the fourthamendment's guarantee against unreasonable search and seizure by approaching a person and questioning him or asking himto provide identification. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983); Peoplev. Billingslea, 292 Ill. App. 3d 1026, 1029 (1997); People v. Anaya, 279 Ill. App. 3d 940, 944 (1996).

Our supreme court in People v. Murray, 137 Ill. 2d 382 (1990), noted that there are three tiers of police-citizen encounters.One tier involves an arrest of a citizen, an action that must be supported by probable cause; otherwise, the fourthamendment prohibition against unreasonable seizures is violated. Murray, 137 Ill. 2d at 387.

The next tier involves a stop pursuant to Terry. Murray, 137 Ill. 2d at 387. In Terry, the United States Supreme Courtrecognized a limited exception to the probable cause requirement that, under appropriate circumstances and in theappropriate manner, allows a police officer to briefly detain a person for investigatory purposes and also, if necessary forsafety, to conduct a limited protective search of that person for weapons. In re J.J., 183 Ill. App. 3d 381, 384 (1989). Anofficer may make a valid Terry stop if, based on all the facts and circumstances, he had a reasonable and articulablesuspicion that the suspect is committing, has committed, or is about to commit a crime. People v. Ertl, 292 Ill. App. 3d 863,868 (1997). An objective standard applies to a review of a Terry stop, so that a police officer must be able to point tospecific and articulable facts that, taken together from the rational inferences from those facts, reasonably warrant the stop.People v. Long, 99 Ill. 2d 219, 228 (1983). Facts and circumstances that, if viewed independently, might constitute innocentbehavior may provide reasonable suspicion when considered in their entirety to justify a Terry stop. People v. Crest, 188 Ill.App. 3d 768, 773 (1989).

The third tier of police-citizen encounters does not involve coercion or detention and is known as "the community care-taking function or public safety function." Murray, 137 Ill. 2d at 387. A proper exercise of this function does not amount toa seizure for fourth amendment purposes because a seizure occurs only when an officer, " 'by means of physical force orshow of authority, has in some way restrained the liberty of a citizen.' " Murray, 137 Ill. 2d at 387-88, quoting Terry v.Ohio, 392 U. S. 1, 19 n. 16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n. 16 (1968). Four examples of circumstancesthat may be indicative of a seizure are as follows: (1) the threatening presence of several officers; (2) the display of aweapon by an officer; (3) some physical touching of the person of a citizen; and (4) the use of language or tone of voiceindicating that compliance with the officer's request might be compelled. Murray, 137 Ill. 2d at 390. " 'In the absence ofsome such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter oflaw, amount to a seizure of that person.' [Citation.]" Murray, 137 Ill. 2d 390-91. In order to determine whether a particularencounter constitutes a seizure or a stop for fourth amendment purposes, a court must consider all the surroundingcircumstances of the encounter to determine whether the police conduct would have communicated to a reasonable personthat the person was not free to decline the officer's requests or otherwise terminate the encounter. Florida v. Bostick, 501U.S. 429, 444, 115 L. Ed. 2d 389, 405, 111 S. Ct. 2382, 2391 (1991).

In Murray, the defendant was sitting in the driver's seat of a legally parked car. Murray, 137 Ill. 2d at 384. A police officerknocked on the window of the vehicle and asked the defendant to exit and produce his identification. Murray, 137 Ill. 2d at384. The defendant stepped from the car and handed the officer his license. Murray, 137 Ill. 2d at 385. However, he left thecar door open when he stepped out, and the officer was able to observe a handgun on the floor of the car. Murray, 137 Ill.2d at 385. The officer confiscated the weapon and arrested the defendant. Murray, 137 Ill. 2d at 385. In holding that theofficer's initial encounter with the defendant did not amount to a seizure prior to the discovery of the weapon, the supremecourt found it significant that there was no use of physical force or show of authority. Murray, 137 Ill. 2d at 390. The courtalso noted that the officer requested rather than ordered the defendant to exit the vehicle and the fact that the defendantcould have declined this request did not transform the consensual encounter into a seizure. Murray, 137 Ill. 2d at 393.

In Billingslea, a police officer saw the defendant and two other men talking to the occupants of a parked car in a "highnarcotics area." Billingslea, 292 Ill. App. 3d at 1028. The officer asked the defendant to come toward him. Billingslea, 292Ill. App. 3d at 1028. As the defendant approached the officer, the officer saw a "bundle" in the defendant's waist area andthat the defendant had his hands in his pocket. Billingslea, 292 Ill. App. 3d at 1028. At that point, the officer ordered thedefendant to keep his hands where the officer could see them. Billingslea, 292 Ill. App. 3d at 1028. After taking a couple ofsteps in the officer's direction, the defendant took an evasive step away. Billingslea, 292 Ill. App. 3d 1028. The officer, whowas about five or six feet away, moved to position himself in front of the defendant so that the defendant could not flee.Billingslea, 292 Ill. App. 3d at 1028. The defendant then removed a handgun from his waistband and threw it into the snow,attempting to conceal it. Billingslea, 292 Ill. App. 3d at 1028. The trial court denied the defendant's motion to quash arrestand suppress evidence, finding that the officer's actions did not amount to a stop and that he seized the weapon in plainview. Billingslea, 292 Ill. App. 3d at 1028-29.

On appeal, the court in Billingslea found that the officer's actions in stepping to block the defendant while telling him tocome over amounted to a show of force before the defendant threw the gun to the ground. Billingslea, 292 Ill. App. 3d at1030. However, the court continued its analysis and held that the defendant was not seized for purposes of the fourthamendment because he ignored the show of authority by choosing not to submit to the officer's orders. Billingslea, 292 Ill.App. 3d at 1030, citing California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991) (where the Courtheld that assuming the officer's pursuit of the defendant constituted a show of authority, the defendant was not seized in theabsence of either physical touching by the officer or submission to the officer's order). Instead, the defendant in Billingsleaturned away, reached for an object in his waistband, and threw it to the ground. Billingslea, 292 Ill. App. 3d at 1030. Inaddition to finding that no seizure occurred because of the lack of submission on the part of the defendant, the court furtherfound that the officer possessed sufficient articulable facts to justify a Terry stop given that it was a high-crime area, thedefendant had a bulge at his waistband, and he took an evasive step away from the officer. Billingslea, 292 Ill. App. 3d at1031.

Here, we find that Murray and Billingslea provide ample authority to support the trial court's denial of the defendant'smotions to suppress. First, we note that Deputy Marquez's actions were justified pursuant to the standard enunciated inTerry for brief investigative detentions. Marquez first observed the defendant commit what the State characterizes as anoffense of criminal trespass to a residence when he entered apartment 18, apparently without authority, and then remainedthere despite being asked to leave twice by the occupant. The defendant finally left when he was requested to do so byMarquez. However, instead of leaving the area, the defendant remained just outside the door of apartment 18. DeputyMarquez then noticed that the defendant smelled of alcohol and appeared to be under the influence of alcohol or drugs.Marquez also knew that the same apartment had been the site of gang-related activity involving an aggravated battery. Asthe deputy and the defendant traversed the stairs, the deputy noticed that the defendant was hiding something in his lefthand. The deputy testified that, at the bottom of the stairs, he feared that the defendant might be concealing a weapon in hishand. Under the totality of these circumstances, we find that Deputy Marquez possessed a reasonable and articulablesuspicion that the defendant was about to commit a crime, and it was reasonable for the deputy to briefly detain thedefendant to determine whether he was concealing a weapon in his left hand and to determine whether the defendant residedat the building.

The defendant argues that the State raised a new theory on appeal by arguing that the defendant's conduct in enteringapartment 18 amounted to a crime. We do not agree that this argument raised a new "theory." We note that during itsclosing argument the State did raise the defendant's peculiar and unauthorized entry into apartment 18 as a factor supportingthe deputy's actions. Accordingly, we reject the defendant's claim that the State cannot rely on the defendant's conduct inentering the apartment to support the trial court's ruling. The defendant also argues that Deputy Marquez had to subjectivelybelieve that the defendant had committed a crime in entering apartment 18. Otherwise, the defendant continues, the Statewas not entitled to rely on the defendant's entry to support the deputy's actions. However, we note that under Terry anobjective standard applies: "would the facts available to the officer at the moment of the seizure or the search 'warrant aman of reasonable caution in the belief' that the action taken was appropriate?" (Emphasis added.) Terry, 392 U.S. at 21-22,20 L. Ed. 2d at 906, 88 S. Ct. at 1880. Here, the record clearly establishes that the facts known to Deputy Marquez wouldhave warranted a man of reasonable caution to believe that the actions taken with respect to the defendant were appropriate.

The case law relied upon by the defendant is distinguishable. For example, in People v. Rainey, 302 Ill. App. 3d 1011(1999), the issue was whether police officers had probable cause to arrest and not whether they had a reasonable suspicionto justify a Terry stop where, upon the approach of the officers, the defendant placed something in his mouth that couldhave been a piece of gum. Rainey, 302 Ill. App. 3d at 1015. Unlike the officers in Rainey, Deputy Marquez was confrontedwith a great deal more suspicious behavior on the part of the defendant. The defendant in the instant case had refused toleave an apartment despite being told to leave, he appeared to be under the influence of alcohol or drugs, and hesurreptitiously descended the stairs with a clenched fist.

The record further establishes that, regardless of whether Deputy Marquez had sufficient facts to justify a Terry stop, thedefendant was not seized until after he dropped cocaine off his cheek onto his shoulder in plain view of Marquez. Thedefendant voluntarily approached Deputy Marquez and asked who he was despite the fact that the deputy was in uniform.The defendant was free to leave, and, in fact, a number of times it was requested that he do so. Yet, the defendant remainedin the deputy's presence. As part of an appropriate exercise of his community care-taking or public safety function, thedeputy asked the defendant where he lived, and the deputy told the defendant he would walk him home. It was alsoappropriate for the officer to ask for the defendant's name and identification. See Murray, 137 Ill. 2d at 393 (encounter wasnot characterized as a seizure where officer requested, rather than ordered, the occupant of a car to exit and show hislicense). By the time they reached the bottom of the stairs, Deputy Marquez had noticed that the defendant was hidingsomething in his left hand, and the deputy feared that it was a weapon. The defendant claims that Deputy Marquez blockedhis path at the bottom of the stairs and that this amounted to a seizure. We disagree, however, with the defendant'scharacterization of the facts on this point. The record does not indicate that the deputy blocked the defendant's path. Instead,it merely shows that the deputy ended up in front of the defendant because the defendant turned to exit the building. At thattime, the deputy was surprised that they were going to leave the building because the defendant had told him that he lived inthe next apartment. The deputy understandably asked the defendant for identification once again. We find no seizure in thisrequest. The deputy then asked to see what was in the defendant's left hand. When the defendant refused, Deputy Marquezreached for the defendant's hand but did not touch him. Assuming that the deputy's action in reaching for the defendant'shand was a show of force similar to the officer in Billingslea who attempted to block the defendant's path when he made anevasive step, we find, as did the court in Billingslea, that the defendant was not seized given that he chose not to submit tothe assertion of authority. See Billingslea, 292 Ill. App. 3d at 1030. Instead, the defendant made a sudden movement towardhis face in an effort to swallow an item of contraband. In the process, Marquez thought that he was being attacked, and thedefendant's arm was deflected, leaving the item in plain view. Under the circumstances, we find that the defendant was notseized until Deputy Marquez attempted to bring the defendant to the ground and inform him that he was under arrest.Accordingly, Deputy Marquez's discovery of the cocaine was not the result of a search or seizure of the defendant.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

HUTCHINSON and GALASSO, JJ., concur.