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September 21, 2001

NO. 4-00-0871

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

______________________________________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

In August 1999, the State charged defendant, LynetteGherna, with possession of a controlled substance (720 ILCS570/402(c) (West Supp. 1999)). In June 2000, defendant filed amotion to suppress evidence and a motion to quash arrest andsuppress statements. In September 2000, after holding a hearingon the motions, the trial court granted defendant's motions. TheState brings this interlocutory appeal pursuant to Supreme CourtRule 604(a) (145 Ill. 2d R. 604(a)). We reverse and remand.

On the night of August 26, 1999, Danville policeofficers Troy Wasson and Doug Smalley were on bicycle patrol inan area with high levels of drug activity when they noticed twopeople sitting in a pickup in a parking lot known for drug sales. Both officers were wearing bicycle patrol uniforms with a badge,and the bicycles were marked "police." As Officer Wasson approached the pickup, he noticed a bottle of beer between thedriver and the passenger. At the preliminary hearing, OfficerWasson did not mention the officers were patrolling a high drug-sale area but merely testified the officers approached thevehicle after noticing the beer and the age of the passenger. The officers positioned themselves one on each side of thepickup. Officer Wasson recognized defendant, who was sitting inthe driver's seat, and later learned the person in the passenger's seat was defendant's 13-year-old daughter. Officer Wassonasked defendant if he could see the bottle of beer, and defendanthanded him the bottle. After discovering the bottle was unopened, Officer Wasson returned the bottle of beer to defendant.

Officer Wasson then asked defendant, who had becomevery nervous, what she was doing in the area. As they spoke,Officer Wasson noticed an object underneath defendant's leg. Upon being questioned about the object, defendant stated she didnot know what it was and handed it to Officer Wasson. The objectwas a LINK card with the name Lowell Briggs. Officer Wassonasked her how she got the card, and she replied she was unawareof how the card got into her pickup. Officer Wasson then askeddefendant if it were a possibility someone had dropped otheritems in the truck, such as illegal drugs or narcotics or weapons. Defendant responded it was a possibility and informed theofficers they were free to look.

Officer Wasson asked her to step out of the pickup, anddefendant did so willingly. Defendant's daughter remained in thepickup. Officer Wasson asked defendant if she had anything onher person belonging to Lowell Briggs, and she stated, "No." Hethen asked defendant if she had any illegal drugs on her or inher possession, and she replied she did not. Officer Wassonpaused for a few seconds and then defendant began emptying herpockets. As she removed her hand from her front left shortspocket, something fell to the ground. Upon inspection, OfficerWasson believed the item was a clear plastic bag containing crackcocaine. The substance field-tested positive for crack cocaineweighing approximately 4.1 grams.

The officers arrested defendant and, after a September2000 hearing, the trial court granted defendant's motion tosuppress. The trial court found:

"[T]he officers approached specifically as aresult of their observation of the youth ofthe passenger and the suspicion that underagedrinking was taking place. This does notappear to be in the nature of a community[-]caretaking function; clearly the officersintended to investigate and determine whetherunderage drinking was occurring. Therefore,the [c]ourt finds this circumstance to bemore akin to a 'Terry stop [(Terry v. Ohio,392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868(1968))],' in which the police have a reasonably articulable suspicion of criminal activity. Following this reasoning, the [c]ourtrelies upon the decision of the Supreme Court[of Illinois] in People v. Brownlee, 186 Ill.2d 501, ***, 713 N.E.2d 556 (1999), in finding that the [officers'] actions and theinquiry that followed amounted to an unlawfuldetention. Once the officers found the beerto be unopened, the reason for their inquiryended. Upon asking the [d]efendant to leavethe car so as to conduct a conversation outside the presence of her daughter, the[d]efendant was unlawfully detained."

This appeal followed.

Initially, we address defendant's motion to strikecertain portions of the State's reply brief. Specifically,defendant complains the State, in its reply brief, argues for thefirst time the police officers' actions constituted a properTerry stop. Defendant notes Supreme Court Rule 341(e)(7) (188Ill. 2d R. 341(e)(7)) provides any points not argued in anappellant's opening brief "are waived and shall not be raised inthe reply brief."

We conclude the State's argument in its reply brief wasin response to arguments raised by defendant in her appelleebrief. Supreme Court Rule 341(g) (188 Ill. 2d R. 341(g)) provides an appellant may respond to arguments presented in theappellee's brief. An appellee may argue any point supported bythe record but an appellant is under no obligation to anticipateevery argument an appellee might raise and address it in itsinitial brief. Oliveira v. Amoco Oil Co., 311 Ill. App. 3d 886,891, 726 N.E.2d 51, 56 (2000). Therefore, defendant's motion tostrike a portion of the State's reply brief is denied.

The State argues the proper standard of review is denovo because the issue raised on appeal is a question of law. Defendant contends the trial court made factual findings inmaking its judgment and those findings should be reviewed underthe manifestly erroneous standard. Where both questions of lawand fact are raised on appeal, we find the appropriate standardof review is the one set forth by the Supreme Court of Illinoisin People v. Crane, 195 Ill. 2d 42, 743 N.E.2d 555 (2001). SeeO'Neill, High court climbs toward the light on proper reviewstandards, Chicago Daily Law Bulletin, February 2, 2001, at 5. Thus, we will not disturb any factual determinations made by thetrial court and contained in the record, unless they are againstthe manifest weight of the evidence. Crane, 195 Ill. 2d at 51,743 N.E.2d at 562. However, we will review de novo the ultimatedetermination of whether the evidence should be suppressed. SeeCrane, 195 Ill. 2d at 51, 743 N.E.2d at 562.

The Supreme Court of Illinois has divided police-citizen encounters into three tiers. The first tier involves anarrest and requires probable cause. The second tier involves aTerry stop, which constitutes a brief seizure that requires areasonable suspicion of criminal activity. The third tierinvolves no coercion or detention and therefore does not involvea seizure. The third tier is commonly known as the community-caretaking or public-safety function. People v. Murray, 137 Ill.2d 382, 387, 560 N.E.2d 309, 311-12 (1990). The State maintainsthe police officers' actions in this case fall under thecommunity-caretaking function. We agree.

A seizure occurs only when the officer, by means ofphysical force or show of authority, has in some way restrainedthe liberty of a citizen. Terry, 392 U.S. at 19 n.16, 20 L. Ed.2d at 905 n.16, 88 S. Ct. at 1879 n.16. The court will look atthe totality of the circumstances surrounding the incident todetermine if "a reasonable person would have believed that he wasnot free to leave." United States v. Mendenhall, 446 U.S. 544,554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). Mendenhall sets forth examples of circumstances that may suggesta seizure: (1) the threatening presence of several policeofficers; (2) the display of an officer's weapon; (3) an officerphysically touching the citizen; and (4) an officer's use oflanguage or tone of voice indicating that the citizen's compliance with the request is compelled. Mendenhall, 446 U.S. at 554,64 L. Ed. 2d at 509, 100 S. Ct. at 1877.

None of those examples occurred in this case. Only twoofficers were present, not several. See Murray, 137 Ill. 2d at391, 560 N.E.2d at 313. No weapons were displayed, and notestimony of a physical touching existed; nor was testimonypresented showing either officer's use of language or toneindicated compliance with the officer's request was compelled.

The facts do not support defendant's contention that ashow of authority was made because of (1) the way the two officers positioned themselves next to the vehicle, (2) the scanningof the interior of the vehicle with a flashlight, and (3) theofficer's asking defendant to exit the vehicle. To determine ifa seizure occurred, the objective test focuses on the coerciveeffect of police conduct as a whole, not on the particulardetails of that conduct in isolation. People v. Erby, 213 Ill.App. 3d 657, 662, 572 N.E.2d 345, 348 (1991). Shining a lightinto a parked vehicle is not a seizure absent coercion by policeofficers. Erby, 213 Ill. App. 3d at 662, 572 N.E.2d at 348. Moreover, asking someone to exit a vehicle does not constitute ashow of authority unless the officers indicate compliance iscompelled. Murray, 137 Ill. 2d at 391, 560 N.E.2d at 313. Defendant could have declined to exit the pickup or inquired whythe officer made the request, and her failure to do so does nottransform a consensual encounter into a seizure. See Murray, 137Ill. 2d at 393, 560 N.E.2d at 314. Further, the position of theofficers alone does not constitute a seizure. A police officercan approach a parked vehicle and ask the occupants questionswithout it constituting a seizure. Erby, 213 Ill. App. 3d at662, 572 N.E.2d at 348.

Also, contrary to defendant's assertions, an officer'sapproach of a vehicle for the purposes of an investigation doesnot per se create a Terry stop. In People v. Smith, 266 Ill.App. 3d 362, 365, 640 N.E.2d 647, 648-49 (1994), this court helda person is not seized when an officer simply approaches anindividual and asks him questions if that person is willing tolisten. The Second District has held similarly. See People v.Ciesler, 304 Ill. App. 3d 465, 471-72, 710 N.E.2d 1270, 1275(1999) (no violation of constitutional rights where a policeofficer merely approaches a person on the street or in anotherpublic place and puts questions to the person if he is willing tolisten); Erby, 213 Ill. App. 3d at 662, 572 N.E.2d at 348.

Where nothing about an encounter with an officer iscoercive or involves the use of physical force or a show ofauthority, a seizure has not occurred. See People v. Green, 301Ill. App. 3d 767, 771, 704 N.E.2d 437, 439 (1998). Based on thefacts of this case, the officers did not seize defendant.

Moreover, this case is distinguishable from Brownlee,186 Ill. 2d 501, 713 N.E.2d 556. In Brownlee, 186 Ill. 2d at519-20, 713 N.E.2d at 565, the officers executed a valid legalstop of the vehicle in which the defendant was riding before theillegal detention occurred. After the valid traffic stop hadconcluded, the officers remained on each side of the vehicle andpaused for a couple of minutes, saying nothing. Brownlee, 186Ill. 2d at 520, 713 N.E.2d at 565-66. When one of the officerseventually asked for permission to search the car, the driverreplied by asking whether he had a choice in the matter. Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 566.

Here, the officers never showed authority and thusnever seized defendant. Further, the officers continued toengage in conversation with defendant except the short pauseafter the officer asked her if she were carrying any contraband. Unlike Brownlee, a reasonable person in defendant's situationwould have felt free to leave. The facts of this case suggest aconsensual encounter, and a person is not seized when she voluntarily cooperates with the police (Erby, 213 Ill. App. 3d at 662,572 N.E.2d at 348).

Accordingly, we reverse the trial court's judgment andremand for further proceedings consistent with this opinion.

Reversed and remanded.

MYERSCOUGH, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I agree with the proposition that "[m]erely approachinga parked vehicle and asking questions of the occupants does notconstitute a seizure." Erby, 213 Ill. App. 3d at 662, 572 N.E.2dat 348. However, where the officer approaches the vehiclebecause he has concerns about criminal activity, the officer isnot "merely approaching the vehicle." "The 'community[-]caretaking' function must be completely divorced from anyinitial suspicion of criminal activity." People v. Simac, 321Ill. App. 3d 1001, 1004, 748 N.E.2d 798, 800 (2001). Thecommunity-caretaking function is "'totally divorced from thedetection, investigation, or acquisition of evidence relating tothe violation of a criminal statute.'" Murray, 137 Ill. 2d at388, 560 N.E.2d at 312, quoting Cady v. Dombrowski, 413 U.S. 433,441, 37 L. Ed. 2d 706, 715, 93 S. Ct. 2523, 2528 (1973).

Did the officers in this case approach the vehicle toadmire its tires, to ask directions, or to make small talk withthe occupants? No. The trial court made a finding of fact: "the officers approached specifically as a result of theirobservation of the youth of the passenger and the suspicion thatunderage drinking was taking place. This does not appear to bein the nature of a community[-]caretaking function; clearly theofficers intended to investigate and determine whether underagedrinking was occurring."

The community-caretaking function is not a fall-backposition when the evidence is insufficient to sustain a Terrystop. Rather, the concept recognizes that just as ordinarycitizens sometimes make contact with individuals who turn out tobe violating the law, police officers may do the same. Policeofficers have duties other than criminal investigation, andsometimes the performance of those duties will lead to a chanceencounter with a potential criminal. The fact that the officerdid not have probable cause or reasonably articulable suspicionto justify the encounter is not a problem, because the encounterwas a chance encounter. That argument does not work in thiscase.