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May 7, 2001

No. 3--00--0591

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE HOLDRIDGE delivered the opinion of the court:

At around 4 p.m. on January 1, 2000, the Peoria policedepartment received a 9-1-1 call from someone named Brenda, whoidentified herself as a cashier at the Butternut thrift store. She told the 9-1-1 operator that there was a middle-aged whiteman driving a small red car with license plate number 299372 nearthe store. She was concerned because he had circled the blockseveral times. She stated she did not know if he was looking forsomeone or something, or if he was checking out the store.

Officer Lenover of the Peoria police department responded tothe call. He testified that as he approached the store, a carmatching the description he had received from the dispatcherpulled up next to him. He activated his lights and pulled thecar over. He identified the defendant as the driver of thevehicle. He stated that as he was pulling the driver over, thedriver appeared to be making some "furtive" movements.

The officer stated that when he approached the car, he hadto knock on the window to get the driver's attention. The drivercontinued to make odd movements toward the passenger seat. Theofficer asked the driver to get out of the car and stand on thesidewalk so that the officer could explain why he had pulled thedefendant over. He had to ask the defendant several times tostand on the sidewalk before he complied.

While the defendant was standing on the sidewalk, thedefendant put his hand in his coat pocket and pulled out a silvertube. The officer grabbed the defendant's hand, but the defendant put the item into his back pants pocket. The officernoticed the tube sticking out of the defendant's pants pocket. He recognized it as a crack pipe. He then handcuffed the defendant and arrested him for possession of drug paraphernalia. Subsequent to the arrest, he searched the defendant and foundcocaine. He also searched the defendant's car and found marijuana.

Ultimately, the judge found that although the police officerwas justified in stopping the defendant under his communitycaretaking function, he did not have authority to order thedefendant out of the car as part of this function. He found theseizure of the defendant was illegal, quashed the arrest, andsuppressed the evidence. The State filed a motion to reconsider,which was denied, and the State appealed.

The ruling of a trial court on a motion to suppress frequently presents mixed questions of fact and of law. Because thetrier of fact is in the best position to review the evidence andweigh the credibility of the witness, the findings of fact of thetrial court will not be disturbed unless they are manifestlyerroneous. People v. Miller, 173 Ill. 2d 167, 670 N.E.2d 721(1996). However, on questions of law, the finding of the trialcourt is subject to de novo review. People v. Aguilar, 265 Ill.App. 3d 105, 637 N.E.2d 1221 (1994).

Encounters between private citizens and the police can bedivided into three broad categories: (1) arrest, in which anofficer has probable cause, seizes an individual and takes himinto custody; (2) Terry stop, in which an officer has a reasonable suspicion that an individual has been involved in criminalactivity or is about to commit a crime and detains him brieflyfor questioning; and (3) "community caretaking," in which anofficer stops an individual to check on his well-being, withoutany initial thought of criminal activity. People v. Murray, 137Ill. 2d 382, 560 N.E.2d 309 (1990). The "community caretaking"function must be completely divorced from any initial suspicionof criminal activity. People v. Hinton, 249 Ill. App. 3d 713,619 N.E.2d 198 (1993). Additionally, it is axiomatic that whenan individual is stopped by an officer for community caretaking,that individual has no obligation to submit to any police detention or questioning. Florida v. Bostick, 501 U.S. 429, 115 L.Ed. 2d 389, 111 S. Ct. 2382 (1991).

If, while performing community caretaking, an officer uses ashow of authority to make an individual stay and answer questions, the interaction may be transformed into a seizure. Cityof Highland Park v. Lee, 291 Ill. App. 3d 48, 683 N.E.2d 962(1997). Whether an officer has made a show of authority is aquestion of fact, and depends on the circumstances. People v.Lockett, 311 Ill. App. 3d 661, 725 N.E.2d 27 (2000). A policeofficer's use of emergency lights to curb a vehicle has been heldto be such a show of authority. Lee, 291 Ill. App. 3d 48, 683N.E.2d 962. In determining whether an encounter with a policeofficer rises to the level of a Terry stop, the question iswhether, under the circumstances, a reasonable person would feelfree to walk away from the police officer. People v. Bailey, 314Ill. App. 3d 1059, 733 N.E.2d 891 (2000).

In order for a Terry stop to be legal, the officer must havea reasonable, articulable suspicion that the person has committedor is about to commit a crime. People v. Lockhart, 311 Ill. App.3d 358, 724 N.E.2d 540 (2000). A mere hunch is insufficient tosupport a Terry stop. People v. Stewart, 242 Ill. App. 3d 599,610 N.E.2d 197 (1993). Merely being nervous when a policeofficer approaches is not a sufficient basis for probable cause. Stewart, 242 Ill. App. 3d 599, 610 N.E.2d 197.

In delivering his opinion, the judge stated that the officercould lawfully approach the vehicle to see if the driver neededassistance, but that asking the defendant to step out of the carexceeded the permissible scope of community caretaking. Implicitin this statement is a finding of fact that the officer exertedhis authority to the point that no reasonable person would havefelt free to leave. We believe that the police officer's use ofhis emergency lights, coupled with his repeatedly asking thedefendant to step onto the sidewalk to discuss why he had beenpulled over, was a sufficient show of authority to transform theencounter from a community caretaking function into a Terry stop. This finding of fact by the trial court was not manifestlyerroneous.

Furthermore, the police officer's testimony belies thecontention that this was a community caretaking stop at all. Theofficer testified that he pulled the defendant over and asked thedefendant to get out of the car because he believed the defendantmight be casing the Butternut Thrift store. The only basis forthe officer's belief was the 9-1-1 call, coupled with the nervousness of the defendant when the officer approached the car. This officer had merely a hunch, not the reasonable suspicionnecessary required for a proper Terry stop.

Since there was not a sufficient basis for the Terry stop,the defendant's subsequent arrest and the evidence that resultedfrom his arrest were obtained illegally and were properly suppressed.

For the foregoing reasons, the judgment of the circuit courtof Peoria County is affirmed.

Affirmed.

SLATER and LYTTON, JJ., concur.