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Docket No. 90096-Agenda 36-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SAMUEL ANTHONY, Appellant.

Opinion filed December 6, 2001.

JUSTICE FITZGERALD delivered the opinion of the court:

The defendant, Samuel Anthony, was charged with unlawfulpossession of a controlled substance after Springfield policeofficers found a rock of cocaine on his person. The defendant fileda motion to suppress the cocaine, charging that the warrantlesssearch and seizure conducted by the police was unconstitutional.The circuit court of Sangamon County granted the defendant'ssuppression motion, and the State appealed. The appellate courtreversed the trial court (No. 4-99-0708 (unpublished order underSupreme Court Rule 23)), and the defendant appealed.

The central issue in this case is whether the defendant'snonverbal conduct constituted voluntary consent to search hisperson. We reverse the appellate court, affirm the trial court, andremand.

BACKGROUND

At the hearing on the defendant's motion to suppress,Springfield police officer Jeff Barr was the sole witness. On directexamination by the State, Officer Barr testified that in 1999 heworked on the community policing program in Springfield's EnosPark neighborhood. Under this program, an officer who normallyworks in that neighborhood would be assigned to patrol the areaon foot. According to Officer Barr, the purpose of this programwas "to make contact with the citizens, address any problems,mostly just to be seen. Walk and talk is basically how it was setup." Officer Barr stated that community policing program officerswould randomly contact people outside the parameters of criminalinvestigations-"people on their porches, people walking on thestreet, people in alleys; just basically to get to know thecommunity and to let the community get to know [the police]." Inthis way, officers "get to know who is in the neighborhood, wherethe problem areas are. That way it is more so the citizens get toknow faces and not just the uniform."

At approximately 7:30 p.m. on June 11, 1999, Officer Barrand Officer Jim Stapleton were on routine walking patrol. OfficerBarr testified, "At that time, I saw a black male [the defendant]exit the residence at 922 North Fourth, come out the front door-Ishould state that it was someone that I didn't know who lived inthere at the time. There was only one resident who lived in theapartment complex there and that was a white female." Thedefendant saw the police officers, turned away, and startedwalking down an alley adjacent to the building. Officer Barr,standing 50 feet away, called to the defendant, "Excuse me, sir.Can I talk to you for a minute?" The defendant turned around andstood in the middle of the alley for approximately 30 seconds,while Officer Barr and Officer Stapleton approached.

Officer Barr testified that he introduced himself as aSpringfield police officer and "just asked what he was doing in thearea and who he knew at the apartment complex that he wascoming out of. *** He told me that he was there visiting a femaleby the name of [R]obbi." Officer Barr did not physically orverbally seize the defendant, and he did not threaten the defendantwith arrest. Still, the defendant was nervous; his hands wereshaking, and his voice was stuttering. Officer Barr becameconcerned when the defendant repeatedly reached his hands intohis pants pockets and pulled them out: "So, I just asked him if hecould please keep his hands out of his pocket while I was talkingto him and that was for my safety and for my partner's safety."The defendant cooperated with this request, and Officer Barr thenasked "if he had anything on him that he shouldn't have, anythinglike guns, drugs, knives, anything that could hurt me or mypartner." The defendant answered "no."

Officer Barr then asked the defendant if he would consent toa search of his person. Officer Barr conceded that the defendantdid not give verbal consent. Instead, Officer Barr stated, "Hespread his legs apart and put his hands on top of his head; assumedthe position I guess is the best way to describe it." Officer Barrconstrued the defendant's actions as nonverbal consent. OfficerBarr never applied any physical force or made any physical contactwith the defendant before searching him. Officer Barr neverthreatened the defendant or drew his weapon. The search revealedthat the defendant possessed a rock of cocaine.

During cross-examination by defense counsel, Officer Barracknowledged that he knew a white female was living at 922North Fourth Street. He also acknowledged that the defendant didnot try to flee the officers and did not appear intoxicated or underthe influence of drugs. Officer Barr testified that while he spokewith the defendant, Officer Stapleton walked 25 feet away tospeak with a woman who had emerged from the apartmentcomplex. Officer Barr never saw the defendant engage in anycriminal activity and never had any prior contact with him.

The trial court granted the defendant's motion to suppress,stating, "Maybe in Russia they can do that but not here." The courtelaborated:

"It is the opinion-my opinion that before you can stopanybody, you have-there has to be a suspicion and youhave to be able to articulate facts that create a suspicionthat they have committed a crime or are committing acrime or a crime is about to be committed.

There is nothing here. A man is walking along the streetor the sidewalk. I don't think a police officer has right todo anything to that person. There is nothing here toindicate this man was doing anything wrong, period. So,that's why, and once the stop is not justified, everythingelse after that has to be thrown out; statements, evidence,anything."

The State appealed, and the appellate court reversed the trialcourt's ruling. The court found that Officers Barr and Stapletondid not conduct an investigatory stop pursuant to Terry v. Ohio,392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and insteadconcluded:

"the encounter falls under the community caretakingfunction and was not required to be justified byreasonable suspicion or criminal activity.

* * *

Here, Barr and Stapleton were clearly working in acommunity caretaking capacity when they approacheddefendant and questioned him about his business in EnosPark. It was precisely their job to stop and talk to thepeople of Enos Park so that the officers and Enos Parkresidents could familiarize themselves with each other.The officers did not know defendant and were attemptingto get to know him as part of their duty."

Although the trial court did not reach the consent issue, theappellate court further held that the search of the defendant'sperson was legal: "Immediately upon Barr's request, defendantspread his legs and put his hands on top of his head. Defendantnever protested during Barr's search or otherwise objected to thesearch. By these actions, defendant gave his consent to Barr for thesearch." No. 4-99-0708 (unpublished order under Supreme CourtRule 23).

We granted the defendant's petition for leave to appeal (177Ill. 2d R. 315(a)).

ANALYSIS

Initially, we note that the defendant contends that he wasdenied due process when he was not appointed counsel on theState's appeal. The State concedes this error, but asserts that thisissue is moot. We agree with the State. The defendant is currentlyrepresented by counsel before this court, and he may present hisarguments against the State here. We could not grant any reliefthat the defendant has not already received. See Richardson v.Rock Island County Officers Electoral Board, 179 Ill. 2d 252, 256(1997). However, we strongly advise both the appellate court andthe trial court to protect vigilantly the right to counsel for indigentdefendants in State appeals. Cf. 145 Ill. 2d R. 605.

Before proceeding to the merits of the defendant's appeal, wemust address the proper standard of review. Generally, when amotion to suppress evidence involves factual determinations orcredibility assessments, we will reverse the trial court's ruling onlyif it is manifestly erroneous. People v. Buss, 187 Ill. 2d 144, 204(1999). De novo review, however, is appropriate when neither thefacts nor the credibility of witnesses is disputed. People v. Sims,192 Ill. 2d 592, 615 (2000); see In re G.O., 191 Ill. 2d 37, 49-50(2000), citing Ornelas v. United States, 517 U.S. 690, 699, 134 L.Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996); People v. Carlson,185 Ill. 2d 546, 551 (1999).

Here, Officer Barr was the only witness to testify at thesuppression hearing. Although the defendant asserts that the trialcourt assessed Barr's credibility, nothing in the record suggests thecourt granted the suppression motion because it questioned Barr'scredibility. Instead, the court suppressed the cocaine because itdecided that Barr lacked reasonable suspicion to stop thedefendant. Accordingly, our review is de novo.

Turning to the merits of the defendant's appeal, we need notdecide whether the encounter between the defendant and OfficersBarr and Stapleton was constitutionally permissible as communitycaretaking (see People v. Murray, 137 Ill. 2d 382, 387-88 (1990))or a Terry stop because the issue of whether the defendantvoluntarily consented to a search of his person is dispositive. Thedefendant contends that he never consented to a search of hisperson, but rather acquiesced to a show of police authority. TheState contends that the defendant voluntarily consented. We agreewith the defendant.

The fourth amendment guarantees "[t]he right of the peopleto be secure in their persons, houses, papers, and effects, againstunreasonable searches and seizures." U.S. Const., amend. IV;accord Ill. Const. 1970, art. I,