People v. Payton

567 N.E.2d 540, 208 Ill. App. 3d 658, 153 Ill. Dec. 582, 1991 Ill. App. LEXIS 6
Appellate Court of Illinois·Decided January 4, 1991·No. No. 1—88—0952·Published·Cited by 3 cases

Opinion

PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Following the denial of defendant’s motion to quash arrest and suppress evidence, a bench trial was held and he was found guilty of possession of cocaine and sentenced to 18 months’ imprisonment.

On June 3, 1987, at approximately 4 a.m., Markham police officer Ralph Tolbert observed a vehicle proceeding “northbound on Winchester at a very slow rate of speed.” As the vehicle approached 163rd Street, it stopped and defendant, who was the driver, exited and walked “briskly” toward a house. He approached the door but did not knock or ring the bell. Instead he walked around the back of the residence. At this point, Tolbert approached the vehicle and was informed by the passenger that defendant was going to visit someone. Because Tolbert, from previous experience, knew that the defendant did not live in the residence, he went around the back, where he observed the defendant climb over a fence and run down an alley. Tolbert then pursued the defendant on a chase which lasted 10 to 15 minutes. During the chase Tolbert periodically lost sight of the defendant and used his portable to call for back-up. At least six cars responded and sealed off the area. After finally losing the defendant, Tolbert returned to his auto, where he heard a radio dispatch that defendant had been seen “between houses on the 164th block of Wolcott”.

At approximately 5 a.m. Tolbert again saw the defendant, this time running toward a house at 165th and Winchester. He then saw the defendant return to the vehicle he had seen earlier and enter the passenger door as the vehicle pulled away. Tolbert activated his overhead lights and pulled the car over. As he approached the vehicle, from a distance of approximately five feet, he observed the defendant “lean forward almost to the dash” and “stuff a plastic bag in the crack of the seat *** he had his fingers extended and he was pushing it into the crack of the seat.” Tolbert ordered the defendant out of the car, frisked him, seized the plastic bag, and upon observing that it contained “fifteen small plastic folds and a smaller plastic bag containing a white powder substance” which he suspected was cocaine, placed the defendant in handcuffs. Tolbert testified that at the time of the initial seizure he did not know what was in the plastic bag. When asked if he feared that defendant had a weapon he stated: “I had concerns but I was sure he didn’t have a weapon on him.”

At oral argument, the State conceded that probable cause for arrest did not exist at the time of the stop, pat-down or seizure of the plastic bag. Instead, it relies on Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, as codified in section 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 108 — 1.01). Under Terry, it has long been established that an officer may pat-down for weapons whenever he has reason to believe that he is encountering a person who is armed and dangerous. Defendant, also at oral argument, conceded that while Tolbert could have conducted a valid Terry stop and pat-down during or immediately after the chase, the intervening time (approximately 45 minutes) during which Tolbert returned to his car, heard the dispatch and again observed defendant somehow diminished the officer’s basis to stop defendant. Defendant further argues that even if the stop is justified, the seizure is not because the plastic bag was not a weapon.

In Illinois, the circumstances under which a police officer may stop a citizen have been codified:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102 — 15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.” (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.)

(See People v. Lang (1978), 66 Ill. App. 3d 920, 383 N.E.2d 782.) Section 108 — 1.01 of the Code of Criminal Procedure provides that at such a stop, if an officer “reasonably suspects that he or another is in danger of attack, he may search the person for weapons.” Ill. Rev. Stat. 1987, ch. 38, par. 108 — 1.01.

We do not accept defendant’s argument that because 45 minutes had elapsed, Officer Tolbert no longer had sufficient grounds to conduct an investigatory stop pursuant to section 107 — 14 or a subsequent pat-down pursuant to section 108 — 1.01. To the contrary, not only do we fail to understand how the passage of 45 minutes would change anything under these circumstances, but during that period additional factors came to the attention of Officer Tolbert which would, if anything, heighten his suspicions: Defendant was sighted between buildings in the 164 hundred block of Wolcott, and when seen by Officer Tolbert at 165th and Winchester, he was first running toward a building and then came back to the auto and entered the passenger door as the vehicle pulled away. Further, it must be kept in mind that it was 4 a.m. and Tolbert, from previous experience, knew that defendant did not live in the house he initially had approached.

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People v. Payton, 567 N.E.2d 540, 208 Ill. App. 3d 658, 153 Ill. Dec. 582, 1991 Ill. App. LEXIS 6 (Ill. Ct. App. 1991).

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