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No. 3--01--0765

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

At the suppression hearing, Officer Robert Bay of theWestern Illinois University police department testified that hereceived information from a confidential source concerning VaughnReid. According to the informant, Reid would travel from Chicagoto Macomb, Illinois, by train on September 11, 2000, with drugsin his possession. Reid was described as a 33-year-old blackmale with a light beard, 6'2" tall and weighing about 280 pounds. He was also known as "Debo." The informant related that Reidmight be accompanied by a female, who would be the courier forthe drugs. Bay and nine other members of a drug interdictionteam planned to intercept Reid when he arrived in Macomb. Theofficers had an old photograph of Reid, and they verified thatReid was not at his residence in Macomb on September 11. Thatevening, two plainclothes officers boarded the train from Chicagoin Galesburg and observed defendant in the company of a blackfemale. Defendant, a 22-year-old student, was 6'2" tall, weighedabout 300 pounds and resembled Reid.

When the train arrived in Macomb, defendant disembarked andwalked across the street to the university bus. The officers onthe train pointed out defendant to Bay and the officers waitingat the train station. Bay and Agent Paul Larson followeddefendant, while the rest of the team pursued his femalecompanion. Defendant boarded the bus, flanked by Bay and Larson. Before defendant found a seat, the officers asked him to step offthe bus because they needed to talk to him. Defendant asked Baywho he was. Bay identified himself as a police officer andproduced his badge. Defendant then complied with the officers'request.

In a parking lot adjacent to the bus stop, Bay, Larson,Officer Pat Frazier and possibly one other officer questioneddefendant. Bay and Larson displayed badges, and Bay askeddefendant for his name and identification. Defendant said hisname was "Rich Stevens," and denied that he had anyidentification. Bay ran an identification check for a WesternUniversity student named "Rich Stevens," which came backnegative. Bay again asked defendant for identification. Defendant then produced an Illinois identification card from hisbackpack, which showed his correct name and date of birth.

While Bay was verifying the information on the card andobtaining a police record report for "Ricardo O. Perkins," Larsonand Frazier engaged defendant in a discussion concerning hisbackpack. Larson asked whether defendant had packed the baghimself, and defendant acknowledged that he had. Larson askedwhether there was anything in the bag that should not be there,and defendant said he did not think so. Larson asked if he couldlook inside the bag, and defendant handed it to Larson. WhenLarson unzipped the pocket, he smelled marijuana. Defendant thenadmitted that he had brought "a little weed to smoke." A bagcontaining approximately 81 grams of marijuana was removed fromthe backpack, and defendant was placed under arrest. Baytestified that he did not hear the discussion taking placebetween Larson and defendant while he was on the telephoneverifying defendant's identification. He said he learned thatdefendant had a prior police record but no outstanding warrants.

Defendant's version of the encounter varied slightly fromthe officers' account. Defendant said the first name he gave toBay was "Richard Spencer." He said that Bay was the only officerwho showed him a badge. He said that while Bay was verifyinginformation from his identification card, Larson grabbed thebackpack and said he was going to take a look in it. Larsonasked defendant if he had any weapons or drugs in the bag, anddefendant said, yes, he had a some "weed." Larson then openedthe bag, found marijuana and arrested him. Defendant said heweighed about 320 pounds on the date of the arrest.

Following arguments of counsel, the trial court denieddefendant's motion to suppress evidence. The court found thatdefendant bore a sufficient resemblance to Vaughn Reid to givethe officers "reasonable suspicion" when they saw defendant onthe train. The court also stated that there was "reasonablesuspicion to proceed" based on defendant's providing twodifferent names when the officers asked for identification. Finally, the court found that defendant gave Larson consent tosearch his bag.

Defendant was subsequently convicted of unlawful possessionof cannabis and sentenced to probation.

On appeal, defendant challenges the trial court's ruling onhis motion to suppress. He argues that (1) the police lackedsufficient information based on the informant's tip to conduct aTerry investigation; or (2) even if the arresting officers hadreasonable suspicion sufficient to conduct a Terry investigationto determine if he was Vaughn Reid, the search of his backpackwas unlawful. In response, the State argues that the encounterwas consensual and defendant was not "seized" for fourthamendment purposes until after Larson detected the odor ofmarijuana, at which point Larson had probable cause to arrest. In the alternative, the State argues that, assuming a Terry stopoccurred, it took place after defendant gave false identificationwhich provided a reasonable suspicion that defendant was involvedin criminal activity. Finally, the State contends that thesearch of defendant's bag was valid because it took place duringa lawful stop and was consensual. Because the relevant facts arenot in dispute, the issue before us is a question of law and ourreview is de novo. People v. Robinson, 322 Ill. App. 3d 169, 748N.E.2d 739 (2001).

Our initial inquiry concerns the nature of the encounterbetween defendant and the officers when the investigation leadingto defendant's arrest took place. If the encounter wasconsensual throughout, as the State argues, then no fourthamendment protections were implicated. See United States v.Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870(1980). However, if defendant was "seized," as he contends, thefourth amendment required that the police have either probablecause to arrest or a reasonable suspicion that defendant wasinvolved in criminal activity. Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S. Ct. 1868 (1968); Florida v. Royer, 460 U.S.491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983).

Mere police questioning does not constitute a Terry seizure. Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S. Ct.2382 (1991). A seizure occurs when the police, by means ofphysical force or show of authority, have in some way restrainedthe person's liberty. Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.Ct. 1868. Indicia of a seizure include (1) the threateningpresence of several officers; (2) display of a weapon; (3)physical touching of the defendant; or (4) use of language ortone indicating that compliance with the officer's request mightbe compelled. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S.Ct. 1870.

The evidence in this case established that defendant wassurrounded by two plainclothes officers in the aisle of a buswhen he was asked to step outside to answer questions. Theofficers did not display their weapons; however, Bay did showdefendant his badge before escorting him to the parking lot. Once in the parking lot, one or more other officers assembled forthe interview. At that point, if not before, there was asufficient show of authority that no reasonable person innocentof an offense would have felt free to walk away and ignore theofficers' questions. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d497, 100 S. Ct. 1870. We hold, therefore, that defendant wasseized, and any consensual aspect of the encounter had dissipatedby the time defendant was asked for identification. See Terry,392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

Our second inquiry concerns the officers' justification forseizing defendant. A limited investigatory detention by thepolice is permissible only if it is based on a reasonable andarticulable suspicion of criminal conduct. Terry, 392 U.S. 1, 20L. Ed. 2d 889, 88 S. Ct. 1868. The police must be able to pointto specific facts which, together with natural inferences, makethe intrusion reasonable. Terry, 392 U.S. 1, 20 L. Ed. 2d 889,88 S. Ct. 1868. Information provided by a known confidentialsource may be sufficient to make an investigatory stop if theinformation carries indicia of reliability. Adams v. Williams,407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972).

In this case, the arresting officers had received detailedinformation from a confidential informant that Vaughn Reid--a manwho generally fit defendant's physical description--and a femalecompanion would be arriving in Macomb with drugs. According toBay, the informant had previously provided reliable information. Independent corroboration of Reid's absence from his home inMacomb provided minimal support for the officer's belief that theinformant had access to reliable information in this case. SeePeople v. Culbertson, 305 Ill. App. 3d 1015, 713 N.E.2d 794(1999). When the officers subsequently observed defendant in thecompany of a female on the train bound from Chicago to Macomb onthe date predicted, they had sufficient reasonable suspicion thatdefendant was the man they sought. See Adams, 407 U.S. 143, 32L. Ed. 2d 612, 92 S. Ct. 1921. Accordingly, we hold that theofficers were justified in conducting a Terry investigation todetermine whether defendant was Vaughn Reid.

Having found that a Terry investigation was justifiable, wemust determine whether the limited scope and duration of theinvestigation was exceeded. The reasonableness of police conductis determined by balancing the public's interest in crimeprevention against the individual's right to personal securityfree from arbitrary interference by law officers. People v.Pantoja, 184 Ill. App. 3d 671, 540 N.E.2d 892 (1989). A Terrydetention violates fourth amendment search and seizureprotections if it is longer than necessary to effectuate thepurpose of the stop or if the investigation proceeds beyond thelegitimate scope of the stop. People v. Brownlee, 186 Ill. 2d501, 713 N.E.2d 556 (1999); People v. White, 331 Ill. App. 3d 22,770 N.E.2d 261 (2002).

The State admits that the purpose of the encounter in thiscase was to determine whether defendant was, in fact, VaughnReid. Defendant initially gave a fictitious name and falselydenied that he possessed identification. Defendant's reluctanceto disclose his identity to the plainclothes officers, whileperhaps understandable under the circumstances, warranted afurther detention to verify his identification. The cannabis indefendant's backpack was discovered during Bay's verification ofthe information on defendant's identification card. Therefore,the duration of the detention cannot be said to have violated anyfourth amendment guarantees.

Finally, we focus our inquiry on the scope of theinvestigation. Interrogation during a Terry stop must bereasonably related in scope to the justification for initiatingthe stop. White, 331 Ill. App. 3d 22, 770 N.E.2d 261 (citingUnited States v. Brignoni-Ponce, 422 U.S. 873, 45 L. Ed. 2d 607,95 S. Ct. 2574 (1975)).

Here, we note that nothing occurred during the course ofinvestigating defendant's identity that warranted expanding thescope of the detention to a drug investigation. None of theofficers testified that the odor of marijuana was detected orthat cannabis was visible when defendant retrieved hisidentification card from his backpack. Defendant simply produceda state identification card, which Bay verified. Bay ascertainedthat defendant had a prior criminal record, but no outstandingwarrants. Accordingly, once defendant handed over proof that hewas not "Debo" or Vaughn Reid, the police had no reasonable,articulable suspicion that defendant was involved in criminalactivity.

Larson's inquiry concerning the backpack was intended toelicit possible incriminating responses concerning matters whollyunrelated to defendant's identity. The mere fact that Larson wasable to conduct a "fishing expedition" while Bay was stillobtaining information concerning defendant's identity does notvalidate Larson's investigation of the backpack. See White, 331Ill. App. 3d 22, 770 N.E.2d 261. We conclude that Larson's probeinto defendant's backpack clearly exceeded the limited scope ofthe Terry investigation and thus violated defendant's fourthamendment guarantees of freedom from unreasonable search andseizure. Accordingly, defendant's alleged consent to search thebag was tainted, and the fruits of the search should have beensuppressed. See White, 331 Ill. App. 3d 22, 770 N.E.2d 261; seealso United States v. Holt, 264 F.3d 1215 (10th Cir. 2001).

Because the State cannot prevail on remand without theillegally obtained evidence, we reverse defendant's convictionand vacate his sentence. See People v. Smith, 331 Ill. App. 3d1049, ___ N.E.2d ___ (2002).

For the reasons stated, the judgment of the circuit court ofMcDonough County is reversed.

Reversed.

BARRY and LYTTON, J.J., concur.