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Defendant Joseph Smith was convicted of unlawful possessionof a controlled substance (720 ILCS 570/402(c) (West 2000)) atthe conclusion of a stipulated bench trial and he was sentencedto a term of two years' probation. On appeal, the defendantcontends that the trial court erred in denying his motion tosuppress. We reverse.

The only witness to testify at the suppression hearing wasOfficer Darrell Gavin of the Joliet Police Department. Gavin andhis partner, Officer Jose, were on patrol on November 24, 2000,when they saw the defendant at 1:43 a.m. walking in the Fairmonthousing project in Joliet, Illinois. The defendant had his handsclenched, and Gavin saw the defendant put something into one ofhis coat pockets. Gavin decided to question the defendantbecause Joliet has a "trespass agreement" with Fairmont whichrequires a "pass" to be in the housing project. However, beforethe officers reached the defendant, he crossed the street,thereby leaving the housing project and the City of Joliet andentering Lockport, Illinois.

By the time Officers Gavin and Jose drove around to thedefendant's location, he was standing in front of a building thatGavin described as a "known drug house." Gavin testified thatthe defendant was not doing anything other than simply"[s]tanding there with his hands in his pockets." The twoofficers got out of their squad car, approached the defendant andasked him what he was doing. The defendant replied that he waswaiting for his cousin. Officer Gavin then asked the defendantwhat he had in his pockets and the defendant did not answer. Gavin told the defendant to take his hands out of his pockets andthe defendant appeared to become nervous and looked around.

Next, Gavin initially testified that the defendant turnedand began to walk away. After reviewing his written report,however, Gavin testified that the defendant began to back awayfrom the officers. The officers told the defendant to stop andto take his hands out of his pockets. The defendant continued toback away and kept his hands in his pockets. After asking thedefendant "a few more times" to take his hands out of hispockets, both officers grabbed the defendant's arms. After thedefendant began to struggle, the officers forced him to theground and placed him under arrest. A subsequent searchdisclosed that defendant was in possession of one-tenth of a gramof cocaine.

Officer Gavin admitted that he had no idea what thedefendant might have had in his pockets. He also acknowledgedthat he never asked the defendant if he had a "pass" for theFairmont housing project. At the conclusion of the hearing, thetrial court denied the defendant's motion to suppress.

Defendant asserts that the trial court erred in denying hismotion to suppress because: (1) the Joliet police officers hadno jurisdiction to arrest him in Lockport; and (2) the officershad no justification for detaining, frisking or arresting him andtherefore violated his rights under the fourth amendment. Because we find that the latter contention requires reversal ofthe defendant's conviction, we do not address the jurisdictionalargument.

A ruling on a motion to quash arrest and suppress evidenceis generally subject to reversal only if it is manifestlyerroneous. People v. Krueger, 175 Ill. 2d 60, 675 N.E.2d 604(1996). However, where, as here, neither the facts nor thecredibility of witnesses is at issue, de novo review isappropriate. See People v. Dilworth, 169 Ill. 2d 195, 661 N.E.2d310 (1996).

The fourth amendment to the United States Constitutionprovides that "[t]he right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated." U.S. Const.,amend. IV. However, the fourth amendment was not intended toeliminate all contact between citizens and the police, but toprevent arbitrary and oppressive interference with anindividual's privacy and personal security. United States v.Mendenhall, 446 U.S. 544, 553-54, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, ___ (1980). Thus the police do not violate the fourthamendment by merely approaching an individual on the street andputting questions to him if the person is willing to listen. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103S. Ct. 1319, 1324 (1983).

"The person approached, however, neednot answer any question put to him; indeed,he may decline to listen to the questions atall and may go on his way. [Citations.] Hemay not be detained even momentarily withoutreasonable, objective grounds for doing so;and his refusal to listen or answer does not,without more, furnish those grounds." Royer,460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103S. Ct. at ___.

The State contends that the initial encounter between thedefendant and Officers Gavin and Jose involved no coercion ordetention and was a consensual police--citizen interaction. Weagree. "Obviously, not all personal intercourse betweenpolicemen and citizens involves 'seizures' of persons." Terry v.Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct.1868, ___ n.16 (1968); see also Florida v. Bostick, 501 U.S. 429,434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, ____ (1991) ("SinceTerry, we have held repeatedly that mere police questioning doesnot constitute a seizure."). In this case there was initially noseizure because the defendant was already stopped, standing infront of a "known drug house." Furthermore, when the officersleft their vehicle and asked the defendant what he was doing, hewas not seized. "There is nothing in the Constitution whichprevents a policeman from addressing questions to anyone on thestreets." Terry, 392 U.S. at 34, 20 L. Ed. 2d at 913, 88 S. Ct.at ___ (White, J., concurring).

Of course, the defendant was free at that point to answerthe officers' questions or ignore them; he could also remainwhere he was or simply walk away. See Royer, 460 U.S. at 497-98,75 L. Ed. 2d at 236, 103 S. Ct. at ___. Defendant chose torespond to the question about what he was doing but to ignore thequestion concerning the contents of his pockets. Somewhere inthe sequence of events which followed, a seizure occurred: (1)defendant was told to take his hands out of his pockets; (2)defendant became nervous, looked around and began to back awayfrom the officers; (3) defendant was told to stop and to take hishands out of his pockets; (4) defendant continued to back up andkept his hands in his pockets; (5) defendant was told a few moretimes to take his hands out of his pockets; and (6) the officersgrabbed the defendant's arms.

A person is seized within the meaning of the fourthamendment when the police, by means of physical force or show ofauthority, have in some way restrained that person's liberty. Terry, 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct.at 1879 n.16. That is, a seizure occurs if, in view of all thecircumstances, a reasonable person would have believed that hewas not free to leave. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2dat 509, 100 S. Ct. at ___. Alternatively, "the appropriateinquiry is whether a reasonable person would feel free to declinethe officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct. at___. In Mendenhall, the Court gave examples of circumstancesthat might indicate a seizure, including: (1) the threateningpresence of several officers; (2) displaying a weapon; (3)physical touching of the defendant; or (4) using language or atone of voice indicating that compliance with the officer'srequest might be compelled. Mendenhall, 446 U.S. at 554, 64 L.Ed. 2d at 509, 100 S. Ct. at 1877; see also People v. Murray, 137Ill. 2d 382, 560 N.E.2d 309 (1990).

Under other circumstances we would find that a seizureoccurred no later than when the defendant was told to stop and toremove his hands from his pockets. At that point the defendanthad begun to back away from the officers, indicating his intentto leave. The officers just as clearly indicated their intentthat he remain. However, because the defendant did not submit tothe officers' commands, but continued to back away, no seizureoccurred at that point. It was not until the officers physicallyrestrained the defendant that he was seized. See California v.Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547(1991) (assertion of authority by police does not constituteseizure unless defendant submits); see also People v. Ramirez,244 Ill. App. 3d 136, 613 N.E.2d 1116 (1993) (following HodariD.). Therefore, we must decide whether the police had validjustification for seizing the defendant at that time.

"An investigatory stop of a private citizen is allowed onlywhen the police officer has specific, articulable facts which,when taken together with rational inferences, create a reasonablesuspicion that the private citizen is involved in criminalactivity." People v. Lockhart, 311 Ill. App. 3d 358, 361, 724N.E.2d 540, 542 (2000). Mere hunches and unparticularizedsuspicions are not sufficient. People v. Moore, 286 Ill. App. 3d649, 676 N.E.2d 700 (1997).

The State argues that the following factors establishedreasonable suspicion sufficient to warrant a Terry stop: (1)defendant was in a high crime area at night; (2) defendant beganto look around nervously and back away from the officers; (3)defendant refused to remove his hands from his pockets; and (4)defendant attempted to "flee" from the officers.

The mere fact that a person is in a high crime area is notsufficient to support a reasonable suspicion that a person iscommitting a crime, although it is "among the relevant contextualconsiderations in a Terry analysis." Illinois v. Wardlow, 528U.S. 119, 124, 145 L. Ed. 2d 570, 576, 120 S. Ct. 673, ___(2000). Similarly, we do not believe that the lateness of thehour justifies a Terry stop, although it may be a factorcontributing to a reasonable suspicion. And while nervousbehavior has been recognized as a pertinent factor (Wardlow, 528U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at ___), it "is nota characteristic that generally invokes reasonable suspicion"(People v. Perry, 188 Ill. App. 3d 499, 503, 544 N.E.2d 1015,1017 (1989); see also People v. Smith, 315 Ill. App. 3d 772, 734N.E.2d 1039 (2000)). As for defendant's behavior in backing awayfrom the officers and refusing to remove his hands from hispockets, his acts were consistent with his right, in the contextof a consensual police--citizen encounter, to ignore the policerequests and go on his way. Moreover, his exercise of thoserights cannot be used to justify a Terry stop. See Royer, 460U.S. at 498, 75 L. Ed. 2d at 236, 103 S. Ct. at ___ (citizen'srefusal to listen or answer questions does not, without more,furnish grounds for detention). After all, consensual encountersdo not implicate the fourth amendment only because they areconsensual. To hold that exercising the right to refuse toanswer and going about one's business supplies the basis forreasonable suspicion creates a "heads I win, tails you lose"situation for the State, with the fourth amendment as the loser.

Finally, the State's characterization of defendant's conductas "unprovoked attempted flight," and its attempt to rely onWardlow, merit little comment. As we have explained, thedefendant's actions were consistent with his right to terminatethe consensual encounter with Officers Gavin and Jose. The"headlong flight" which justified a Terry stop of the defendantin Wardlow (528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at___) bears no resemblance to the instant defendant's conduct.

Viewed individually then, defendant's actions were notsufficient to cause a person of reasonable caution to believethat defendant was engaged in criminal activity. However, factsand circumstances which might appear innocent when viewedindependently may provide reasonable suspicion when viewed intheir entirety. People v. Lockett, 311 Ill. App. 3d 661, 725N.E.2d 27 (2000).

"In deciding whether a reasonablesuspicion existed, we must consider the'"totality of the circumstances--the wholepicture"' of each case. [Citations.] Werecognize that a reasonable suspicion mayemerge from seemingly innocent, non-criminalconduct. [Citation.] The question for thecourt is the degree of suspicion whichattaches to the circumstances surrounding adefendant's actions. [Citation.] The factsused to support an investigatory detentionare insufficient when they describe 'a verylarge category of presumably innocenttravelers, who would be subject to virtuallyrandom seizures.'" People v. Anaya, 279 Ill.App. 3d 940, 945-46, 665 N.E.2d 525, 529(1996).

We believe that, considering the totality of thecircumstances as they existed on November 24, 2000, there wereinsufficient specific, articulable facts to create a reasonablesuspicion that defendant was committing a crime. Essentially,defendant put something in his pocket (drugs, a knife,cigarettes, keys, gum?) while walking late at night. He thenstood in front of a known drug house with his hands in hispockets. Nothing about this activity suggests criminal conduct. Certainly, putting something in one's pocket is not a hallmark ofcriminal activity. See People v. F.J., 315 Ill. App. 3d 1053,734 N.E.2d 1007 (2000); People v. Anderson, 304 Ill. App. 3d 454,711 N.E.2d 24 (1999). Nor did defendant's presence in thevicinity of a house where drugs had been sold in itself create areasonable suspicion. See Lockhart, 311 Ill. App. 3d 358, 724N.E.2d 540 (fact that defendant entered and quickly left housewhere prior drug arrests had been made did not establishreasonable suspicion to stop defendant); People v. Harper, 237Ill. App. 3d 202, 205, 603 N.E.2d 115, 116 (1992) (no reasonablesuspicion where defendant was stopped after exiting "known dopehouse"). With respect to defendant's nervous behavior, webelieve it is significant that, according to Officer Gavin'stestimony, defendant did not become nervous until after he wastold to remove his hands from his pockets. Such an order mayhave been considered by the defendant as a signal that what hadbeen a casual inquiry was now the prelude to something moreserious, thereby creating anxiety. Finally, we do not believethat defendant's decision to keep his hands in his pockets andterminate the "consensual encounter" can provide the basis forreasonable suspicion, for the reasons stated earlier. We hold,therefore, that defendant was improperly seized in violation ofthe fourth amendment. The circuit court's ruling denying thedefendant's motion to suppress is accordingly reversed. Inaddition, because the State cannot prevail on remand without thesuppressed evidence, we reverse the defendant's conviction andvacate his sentence.

For the reasons stated above, the judgment of the circuitcourt is reversed.

Reversed.

LYTTON, P.J., and McDADE, J., concur.