People v. Wells

Opinion

FIFTH DIVISION August 6, 2010

1-09-0792

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 08 CR 21994 ) CALEB WELLS, ) The Honorable ) James M. Obbish, Defendant-Appellee. ) Judge Presiding.

PRESIDING JUSTICE TOOMIN delivered the opinion of the court:

This case calls on us to determine whether the circumstances of a Terry stop engendered

sufficient reasonable suspicion of the danger of an attack to warrant a frisk for weapons.

Following a hearing on defendant Caleb Wells’ motion to quash arrest and suppress evidence, the

trial court granted relief. The State now appeals, contending: (1) the trial court’s factual findings

were against the manifest weight of the evidence; (2) the stop and frisk of defendant comported

with Terry; (3) the arresting officers had probable cause; and (4) the search of defendant’s

vehicle was proper. Defendant did not file a responsive brief. Consequently, we can and do

consider the appeal based solely upon the State’s brief and the circuit court record. First Capitol

Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495

(1976). For the reasons that follow, we affirm the order of the circuit court. 1-09-0792

BACKGROUND

Defendant was charged by indictment with unlawful use of a weapon by a felon and

aggravated unlawful use of a weapon by a felon. Prior to trial, counsel moved to quash

defendant’s arrest and suppress the evidence derived therefrom. Defendant’s motion asserted the

officers arrested him without probable cause. Following an evidentiary hearing on the motion,

the trial court granted the motion and suppressed the evidence. In turn, the State filed a

certificate of substantial impairment followed by a notice of appeal.

Officer Dervisevic was the sole witness to testify at the hearing. According to

Dervisevic, at about 2 a.m. on November 7, 2008, he and his partner, Officer Mizones, responded

as an assist car to a “domestic disturbance” at 1301 West Argyle in Chicago. The radio call

indicated the victim, Allison Sturgill, complained to the dispatcher her ex-boyfriend was outside

of her building, ringing her unit, and “threatening to kill her over the phone.” Sturgill told other

officers she wanted defendant to leave, but did not want to press charges. Upon arrival,

Dervisevic observed defendant exiting Sturgill’s apartment. Dervisevic did not speak with

Sturgill at any point and was unaware of any additional conversations she had with the other

officers. Likewise, the officers did not stop or speak with defendant as he left the building and

proceeded on foot west on Argyle. No mention was made that defendant was possibly carrying a

gun. After defendant left the area, the officers departed.

Approximately 10 minutes later, Dervisevic received a second radio call indicating

defendant had returned to Sturgill’s apartment; that he was “in front of the building ringing the

bell and threatening to call her over the phone.” Once again, there was no indication defendant

-2- 1-09-0792

was armed. When Dervisevic and his partner returned to the area, they saw defendant walking

west down Argyle at about 1325 Argyle. Defendant did not have anything in his hands. They

stopped their squad car in front of him and exited to conduct a field interview. Defendant

cooperated fully with the officers. However, before the officers asked defendant any questions,

they “placed him in cuffs right away for our safety and [patted] him down for weapons.” Officer

Dervisevic discovered a handgun in defendant’s left sock near his ankle. Defendant was taken

into custody and transported to the 20th District police station. While at the station, defendant

claimed the gun belonged to his grandmother.

Ammunition for the handgun was found in his vehicle, which was parked on the opposite

side of Argyle from the encounter. Dervisevic’s tow report indicated defendant’s vehicle was

parked at 1348 West Argyle. According to Dervisevic, defendant never gave consent to a search

of his vehicle. Once in the station, after Mirandizing the defendant, the officer “asked him if he

had a car [and] he stated to me that he had a car and he was parked in that block over there.”

Dervisevic further explained, “And to make sure that prisoner property is safe I went back there

to make sure that his car is legally parked which it was not.” Consequently, defendant’s car was

cited for parking illegally in a handicapped zone and Dervisevic called for the car to be towed.

While awaiting the tow, Dervisevic searched the vehicle and found ammunition for use in the

handgun found in defendant’s possession.

The State argued that, based on circumstances, the officer had probable cause to conduct

a Terry stop and pat defendant down. The State posited that the officer’s actions were warranted

given the close temporal proximity of the two incidents, coupled with defendant’s alleged threat

-3- 1-09-0792

to kill Sturgill, as well as the allegation that the officer was in fear. Furthermore, the officer

possessed “a reasonably articulable suspicion that *** defendant was the individual who had

made that threat and he certainly had probable cause to pat him down for his own safety and

recover the gun.”

Defense counsel countered that the officer’s actions were “backwards,” as defendant was

immediately handcuffed and searched. Accordingly, the circumstances presented to the officers

were not sufficient to establish probable cause. When the officers arrived, defendant was

“walking, behaving himself.” According to defense counsel, the officers needed some

verification of defendant’s identity and the nature of his actions giving rise to Sturgill’s call to

police. Consequently, the search of defendant’s person was improper under the circumstances.

Furthermore, the defense disagreed that this encounter could be considered a Terry stop or that

such a stop and pat down was even warranted, especially where there was never any mention or

implication of the presence of a weapon. Counsel argued the search of the car was likewise

improper based upon the infirmities of the initial stop.

Following argument, the trial judge announced his findings:

“Well clearly when he is stopped which was when the officer went back and

his liberty is restrained he seems to be that he is under arrest because the officers

approached him for a field interview but what the officers did was they put him in

handcuffs, that is a pretty strong indication of your liberty being restrained and you

are not free to leave. Now no one has articulated, no officer has testified as to what

he was under arrest for at that point. He is under at best he would be under arrest I

-4- 1-09-0792

assume for a domestic disturbance. I don’t know what exactly where that crime

appears in the statute. As far as I know there is so [sic] such crime as domestic

disturbance, that is a police call, that is the way that they notify the officers on the

street as to the nature of something.

But the officer did not articulate that they placed the man under arrest for

aggravated or simple assault or anything else they just basically took him into

custody. Once they take him into custody they then search him. And but that search

is incident to an arrest that is not based on the defendant actually having committed

an actual crime that the officer was aware of.

So, the resulting search I believe the proceeds of that search which was done

without benefit of any warrant would be and is ordered suppressed. The subsequent

later search based on the defendant already being under arrest and then saying the he

had a car parked out on Argyle whatever was recovered during the search of that

search is the fruit of the poisonous tree from the initial illegal arrest so that will be

suppressed as well.”

Thereafter, the State sought reconsideration. During the argument on the motion, the

State addressed an additional issue concerning the transcript of the prior hearing. Specifically,

the State argued the transcript erroneously reflected that in the second radio call Officer

Dervisevic received defendant “threatened to call” the victim. According to the State, the

transcript should have read “threatened to kill.” Additionally, the State contended the officers, in

fact, had probable cause to arrest defendant for the offense of telephone harassment. Yet, even if

-5- 1-09-0792

the officers lacked probable cause, they possessed a reasonable, articulable suspicion to stop and

frisk defendant based upon the original call, the officer’s response, and the second call

concerning defendant’s renewed actions. The State further argued that handcuffing the defendant

for the officer’s safety did not convert the encounter into a seizure, given that an individual,

under the circumstances, could possess a weapon in light of the nature of the threats to the

victim.

The trial court denied the motion to reconsider, first rejecting the State’s claim that

Dervisevic’s testimony was erroneously transcribed. The judge explained that the answer the

officer gave “resonated” with him and the transcript was consistent with his recollection and

reaction to the testimony. Additionally, the trial judge discounted the officer’s recorded answers

on cross-examination where the questions posed referred to a threat to “kill” the victim.

The trial judge further noted that there was no testimony to indicate any mention

defendant was armed when the officers approached him. Furthermore, the way the officers

“rolled up on” defendant and immediately handcuffed and searched him led the court to conclude

defendant was under arrest at that time. Yet, there was no indication of the basis for the arrest.

Instead, not until the hearing on the motion to reconsider did the State offer the explanation that

defendant was arrested or subject to arrest for telephonic harassment. In fact, the court observed:

“I don’t think that the officer was taking him in custody for the telephone harassment

or had any idea that maybe – he had no facts to base that on that it was harassment.

He didn’t know any words that were used or whatever but in any event it seemed like

it was an arrest.”

-6- 1-09-0792

In the court’s view, while the officer could have engaged defendant in a conversation as a part of

a field interview, which defendant could have equally refused, that was not what occurred.

Instead, the officer’s actions in patting defendant down, even if it was for the officer’s safety, was

not proper without “some articulable facts or reasonable fear that this person might in fact have a

weapon and be in danger.” Even if these conditions existed, the officer did not articulate them.

In conclusion, the court stated:

“And quite frankly since never was there ever any mention of a weapon, not even in

my finding of facts, not even a threat to kill, based on his direct examination, I don’t

believe the officer was justified in having an inquiry, in just turning an investigation

on the street into something that become a search so the motion to reconsider is

respectfully denied.”

The State then filed a certificate of substantial impairment and a notice of appeal. This

appeal followed. As noted, defendant did not appear or otherwise participate in this appeal.

ANALYSIS

It is axiomatic that rulings on motions to suppress are reviewed pursuant to the two-part

standard articulated in Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116

S. Ct. 1657, 1663 (1996), where findings of historical fact are viewed for clear error with

reviewing courts affording due weight to any inferences drawn therefrom by the trial court and

the ultimate legal ruling concerning suppression is reviewed de novo. Factual findings are given

great deference and are not subject to reversal unless they are contrary to the manifest weight of

the evidence. People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d 187, 195 (2006). “This

-7- 1-09-0792

deferential standard of review is grounded in the reality that the circuit court is in a superior

position to determine and weigh the credibility of the witnesses, observe the witnesses’

demeanor, and resolve conflicts in their testimony.” People v. Jones, 215 Ill. 2d 261, 268, 830

N.E.2d 541, 548 (2005). Such findings are against the manifest weight of the evidence only if

the opposite conclusion is clearly evident. People v. Beverly, 364 Ill. App. 3d 361, 368, 845

N.E.2d 962, 969 (2006). Reviewing courts, however, remain free to assess the facts in concert

with the issues to draw conclusions when determining appropriate relief. Luedemann, 222 Ill. 2d

at 542, 857 N.E.2d at 195.

We first address the State’s contention that the trial judge’s factual findings were against

the manifest weight of the evidence. According to the State, the trial court’s adoption of Officer

Dervisevic’s testimony that defendant was “threatening to call” the victim was against the

manifest weight of the evidence. The State’s argument is premised upon the court’s rejection of

its claim that the transcript contained a typographical error. The State contends the evidence of

the officers’ “immediate reaction” to the second call make the trial court’s finding “unreasonable

and arbitrary to find that defendant merely threatened to ‘call’ the victim the second time.”

On the record before us, we cannot conclude the trial court’s factual conclusions were

against the manifest weight of the evidence. Unquestionably, the trial court was in the best

position to evaluate the evidence before it. Jones, 215 Ill. 2d at 268, 830 N.E.2d at 548. It is

clear the trial judge paid careful attention to the evidence presented at the hearing and was

confident in his recollections. Moreover, the judge’s impressions are buttressed by the

observations and professional assessment of the court reporter. It is not our place to substitute

-8- 1-09-0792

our judgment for that of the trial judge on this factual matter. See Corral v. Mervis Industries,

Inc., 217 Ill. 2d 144, 155, 839 N.E.2d 524, 531 (2005). Nevertheless, we do not perceive that the

opposite conclusion is “clearly evident.” Beverly, 364 Ill. App. 3d at 368, 845 N.E.2d at 969.

Manifestly, our conclusion is the same as to the basic historical facts supporting the trial judge’s

suppression order.

Next, we turn to the trial court’s legal conclusion in suppressing the evidence against

defendant. Fundamentally, the fourth amendment to the United States Constitution (U.S. Const.,

amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, §6) protect

individuals from unreasonable searches and seizures. See People v. Rosenberg, 213 Ill. 2d 69,

77, 820 N.E.2d 440, 446 (2004). As our supreme court aptly observed in Luedemann, “The

touchstone of the fourth amendment is reasonableness.” Luedemann, 222 Ill. 2d at 566, 857

N.E.2d at 208.

Our fourth amendment jurisprudence instructs that not all encounters between citizens

and police officers result in a seizure. People v. White, 221 Ill. 2d 1, 21, 849 N.E.2d 406, 418

(2006). Illinois courts utilize a three-tiered analytical framework to apply to law enforcement

interactions with private citizens. They include, (1) arrests, requiring probable cause; (2) brief

investigative detentions or “Terry stops” requiring a reasonable, articulable suspicion of criminal

activity; and (3) encounters devoid of coercion or detention, not implicating the fourth

amendment. Luedemann, 222 Ill. 2d at 544, 857 N.E.2d at 196.

In the case sub judice, the State aptly concedes that the third category of encounters has

no application to the instant facts, given its acknowledgment:

-9- 1-09-0792

“The officers conducted a valid Terry stop and frisk when they handcuffed

defendant and conducted a limited search for weapons because, given the facts

known to them at that time and the inferences that they were entitled to draw

based on their law enforcement training, defendant’s behavior created a

reasonable suspicion that criminal activity was afoot and that defendant might be

armed and dangerous.”

Likewise, in articulating his ruling, the trial judge rejected the interpretation of the events as a

field interview of defendant. We agree. The record before us demonstrates that the officers

approached defendant and immediately restrained him, without the exchange of any words or

other pleasantries. Consequently, we conclude this could not be characterized as a consensual

encounter as it involved a significant degree of coercion and detention. See Luedemann, 222 Ill.

2d at 544, 857 N.E.2d at 196.

On appeal, the State offers five reasons why the trial court was incorrect in concluding

defendant was arrested without probable cause upon being handcuffed. To this end, the State

posits that: (1) handcuffing during the course of a Terry stop does not elevate the encounter to an

arrest; (2) here the series of events demonstrated defendant threatened to kill the victim; (3) the

handcuffing was done for Dervisevic’s safety and not because he “believed he could

automatically search anyone that he wants to talk to”; (4) when possessed of specific articulable

facts that would lead an officer to believe a citizen is armed or dangerous, an officer may conduct

a frisk before posing any questions; and (5) when Dervisevic responded to the second call

objective facts were present to give rise to a reasonable belief defendant was involved in criminal

-10- 1-09-0792

activity, as well as armed and dangerous.

Although searches and seizures generally require a warrant issued upon probable cause, it

is axiomatic that law enforcement officers may conduct warrantless investigatory stops where the

officer “can point to specific, articulable facts that, when combined with rational inferences

derived therefrom, create reasonable suspicion that the person seized has committed or is about

to commit a crime.” Beverly, 364 Ill. App. 3d at 368, 845 N.E.2d at 969, citing Terry v. Ohio,

392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880 (1968); People v. Lee, 214 Ill. 2d

476, 487, 828 N.E.2d 237, 246 (2005). Moreover, section 107-14 of the Code of Criminal

Procedure of 1963 (Code) codifies Terry and provides, “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

***.” 725 ILCS 5/107-14 (West 2008). In turn, section 108-1.01 of the Code, “Search During

Temporary Questioning,” provides:

“When a peace officer has stopped a person for temporary questioning

pursuant to Section 107-14 of this Code and reasonably suspects that he or another

is in danger of attack, he may search the person for weapons. If the officer discovers

a weapon, he may take it until the completion of the questioning, at which time he

shall either return the weapon, if lawfully possessed, or arrest the person so

questioned.” 725 ILCS 5/108-1.01 (West 2008).

Principles underlying our analysis do not mandate that the facts forming the basis of

reasonable suspicion need rise to the level of probable cause and do not require an officer to

-11- 1-09-0792

actually witness a violation. People v. Richardson, 376 Ill. App. 3d 612, 625, 876 N.E.2d 303,

314 (2007). Nevertheless, a “Terry investigative detention cannot be justified, however, on the

basis of ‘unparticularized suspicion’ or on a ‘hunch.’ ” People v. Gherna, 203 Ill. 2d 165, 181,

784 N.E.2d 799, 808-09 (2003), quoting Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at

1883. As the court in Beverly explained:

“We objectively consider whether a stop was proper, looking at the facts available

to the officer at the time of the seizure to determine whether his or her actions were

appropriate. Luedemann, 357 Ill. App. 3d at 420. The situation encountered by the

officer must be so far from the ordinary that any competent officer would be expected

to act quickly.” Beverly, 364 Ill. App. 3d at 369, 845 N.E.2d at 969.

Establishing whether an officer is justified in conducting a Terry stop is a fact-driven process and

must be approached on a case-by-case basis. People v. Hubbard, 341 Ill. App. 3d 911, 917, 793

N.E.2d 703, 709 (2003).

In the case sub judice, the officers responded to a second call concerning defendant at the

same location. The radio call essentially indicated that defendant had again presented himself at

the victim’s home, possibly trespassing, harassing or threatening her. Notably, this was in the

wake of the officers escorting him off of the premises approximately 10 minutes earlier. When

the officers returned to the area, they observed the defendant, once more, walking down the

block. Based upon the facts objectively available to the officers at the time, it was reasonable for

them to conduct a brief investigatory stop. See Beverly, 364 Ill. App. 3d at 369, 845 N.E.2d at

969.

-12- 1-09-0792

Nonetheless, the question before us requires more than merely determining whether the

stop was appropriate at its inception. We must consider whether the stop escalated, requiring an

additional quantum of suspicion or cause to justify the officer’s actions. According to Officer

Dervisevic’s testimony, the officers approached defendant and, with utterly no discussion or

interaction, placed him in handcuffs, conducted a search of his person, and discovered a handgun

secreted in his sock. Prior to that point, there was no indication defendant was armed.

Moreover, the testimony at the hearing demonstrated that defendant was cooperative with

responding officers on both occasions. In support of its contention that the officers’ actions in

handcuffing defendant did not transform the encounter into an arrest, the State cites numerous

cases. Those cases are factually inapposite to the case at bar.

We do, of course, recognize that not all circumstances wherein handcuffing and detention

occur necessarily convert a lawful Terry stop into an arrest. People v. Walters, 256 Ill. App. 3d

231, 237, 627 N.E.2d 1280, 1285 (1994); People v. Waddell, 190 Ill. App. 3d 914, 926, 546

N.E.2d 1068, 1075 (1989). Yet, courts have observed that the use of handcuffs in a particular

detention is indicative of an arrest, rather than a Terry stop, because it heightens the degree of

intrusion and is not, generally, part of a such a stop. People v. Arnold, 394 Ill. App. 3d 63, 70,

914 N.E.2d 1143, 1150 (2009). Importantly, concerns for officer safety and the safety of the

public can, in certain limited circumstances, justify handcuffing during a brief investigatory stop.

Arnold, 394 Ill. App. 3d at 70, 914 N.E.2d at 1150. Moreover, “the fact that handcuffing takes

place before an officer has probable cause to arrest is not an automatic violation of the fourth

amendment.” Arnold, 394 Ill. App. 3d at 71, 914 N.E.2d at 1150.

-13- 1-09-0792

In Arnold, our Second District examined factual scenarios where restraining a suspect

with handcuffs would be appropriate, including three armed robbery suspects in a car shortly

after the offense (People v. Walters, 256 Ill. App. 3d 231, 235, 627 N.E.2d 1280, 1284 (1994))

and narcotics cases where the suspect is in a vehicle (People v. Nitz, 371 Ill. App. 3d 747, 754,

863 N.E.2d 817, 824 (2007), citing People v. Waddell, 190 Ill. App. 3d 914, 927, 546 N.E.2d

1068, 1076 (1989)). Arnold, 394 Ill. App. 3d at 71, 914 N.E.2d at 1150.

We note that Walters, Nitz, and Waddell are among a litany of cases cited by the State in

support of the argument that placing a suspect in restraints does not amount to an arrest per se.

In Walters, the court found the officer’s actions in detaining the suspects in an armed robbery

were reasonable under those circumstances because one could reasonably conclude the suspects

were armed and dangerous. Walters, 256 Ill. App. 3d at 238, 627 N.E.2d at 1286; People v.

Staten, 143 Ill. App. 3d 1039, 1052-53, 493 N.E.2d 1157, 1164-65 (1986) (placing suspect in

squad car viewed as a limited intrusion during investigation of, ultimately fatal, officer-involved

shooting). In Nitz, the court determined that given the evidence, the issue of handcuffing was not

relevant because the officer had probable cause to arrest prior to the time the defendant was

detained based on the officer’s detection of the odor of cannabis. Nitz, 371 Ill. App. 3d at 754,

863 N.E.2d at 824. Likewise, in Waddell, the court concluded there was “nothing unreasonable

about police officers being apprehensive concerning the risks inherent in interdicting drug

traffic” and that the absence of a weapon was not the same as an absence of danger.

Consequently, it was reasonable to handcuff the defendant during the approximately 15 to 20

minutes it took to conduct a canine search of the vehicle, which uncovered cocaine in the trunk.

-14- 1-09-0792

Waddell, 190 Ill. App. 3d at 927, 546 N.E.2d at 1076. In each of these cases, probable cause to

arrest was developed during the course of the defendants’ detentions.

The State avers that “this Court has held that suspicion of a crime of violence or a drug-

trafficking offense is sufficient to justify the use of handcuffs during a Terry stop. [Citation.]”

This is a telling and important observation in the context of the case presently before us.

Nonetheless, this is no such case. Here, defendant was immediately restrained and searched.

There was no temporary questioning pursuant to section 107-14. No attempt to investigate the

situation was undertaken in any manner. The officers were armed only with a radio call directing

them to return to a scene they recently departed. At best the facts they possessed arguably

sufficed to support a Terry stop. See Beverly, 364 Ill. App. 3d at 369, 845 N.E.2d at 969.

Instead, we concur with the trial judge that the officers did what can only be described as an

arrest.

Another case cited by the State, People v. Vena, 122 Ill. App. 3d 154, 460 N.E.2d 886

(1984), is offered as presenting an analogous situation to the case at bar. However, the facts of

Vena differ importantly. In Vena officers responded to calls concerning suspicious men in an

area where several burglaries recently occurred. The incident took place on a snowy night, with

six to eight inches of snow on the ground. The officers followed footprints in the snow from the

residence where one of the calls originated, eventually observing the defendants. Vena, 122 Ill.

App. 3d at 161, 460 N.E.2d at 891. The officers announced their office and ordered the

defendants to halt. Instead, the defendants fled on foot. Defendant Vena physically resisted

efforts to restrain him, resulting in an injury to one of the officers. Vena, 122 Ill. App. 3d at 157,

-15- 1-09-0792

460 N.E.2d at 889. According to the testimony of one of the officers, the defendants were taken

into custody because “they ran from police, failed to stop, and refused to identify themselves.”

Vena, 122 Ill. App. 3d at 158, 460 N.E.2d at 890. During a pat-down search of Vena, two large

objects were felt in one of his back pockets, which turned out to be “a yellow plastic flashlight

and a large folding knife.” The men were then transported to the police station and 15 to 20

minutes later the officers received a call about an attempted burglary in the area where

defendants were observed. Vena was searched again and more items were recovered from him,

some of which were identified as proceeds from a recent burglary in an adjoining town patrolled

by the same police department. Vena, 122 Ill. App. 3d at 159, 460 N.E.2d at 890.

Based on these facts, the court concluded the officers “had knowledge of sufficient

specific and articulable facts to justify a stop of defendants in order to maintain the status quo

while they investigated for criminal activity.” Vena, 122 Ill. App. 3d at 161, 460 N.E.2d at 892.

Additionally, the officers were justified, based on Terry, as well as sections 107-14 and 108-1.01

of the Code, to search for weapons, where the men attempted to flee and where Vena offered

physical resistance. Vena, 122 Ill. App. 3d at 161, 460 N.E.2d at 892. Therefore the detention

was reasonable in order to conduct further investigation. Furthermore, the circumstances of the

detention and transportation of the defendants were not unreasonable, particularly where “[n]o

effort was made to interrogate or identify defendants or impose any intrusive investigation upon

them.” Vena, 122 Ill. App. 3d at 162, 460 N.E.2d at 892. Additionally, taking the men to the

station was not any more “intrusive per se than detaining them in the open field or in the squad

car. In fact both the squad car and the stationhouse protected the defendants and police officers

-16- 1-09-0792

from blizzard-like weather conditions.” Vena, 122 Ill. App. 3d at 163, 460 N.E.2d at 893. The

ultimate arrest of the defendants did not occur until shortly after – within 15 to 20 minutes – their

arrival at the police station and was based upon probable cause and within an hour of the initial

call. Therefore, the trial court’s ruling suppressing the items recovered in the Terry pat-down

and later search incident to the arrest at the station was in error. Vena, 122 Ill. App. 3d at 164-65,

460 N.E.2d at 894.

Absent the transportation component of Vena, the situation is clearly distinguishable from

the case at bar. Here, the defendant did not attempt to flee or struggle. On the contrary, the

unrebutted testimony indicated that he was fully cooperative at all points during the interactions

with the officers, including the initial call when he was asked to leave the premises and when the

officers approached him following the second call. The court in Vena emphasized the actions of

the defendants in ignoring the officers’ order, attempting to flee, and Vena’s resistance to being

detained, as justifying and supporting the reasonableness of the initial pat-down search. Vena,

122 Ill. App. 3d at 161, 460 N.E.2d at 892. No such circumstances are present in the case sub

judice. Instead, the officers were solely responding to a call. There were no additional

investigative developments to support taking defendant into custody.

Arguably, in the instant case the officers could have inferred, based on the radio call, that

defendant had just committed an offense and, therefore, been justified in temporarily stopping

him in accordance with section 107-14. 725 ILCS 5/107-14 (West 2008). However, it is the

subsequent provision of section 107-14, permitting officers to “demand the name and address of

the person and an explanation of his actions” (725 ILCS 5/107-14 (West 2008)), which we deem

-17- 1-09-0792

problematic for the responding officers. The record demonstrates the officers did nothing of the

sort. Yet, that is not the end of the analysis. Section 108-1.01 permits officers to search a subject

stopped for temporary questioning, pursuant to section 107-14, for weapons where the officer

“reasonably suspects that he or another is in danger of attack.” 725 ILCS 5/108-1.01 (West

2008). We note that an officer need not have absolute certainty a suspect is armed in order to

justify a search. People v. Ware, 264 Ill. App. 3d 650, 655, 636 N.E.2d 1007, 1010 (1994).

Instead, “The issue is whether a reasonably prudent person in the circumstances would be

warranted in the belief that his safety or that of others was in danger.” Ware, 264 Ill. App. 3d at

655, 636 N.E.2d at 1010, citing Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.

In the case at bar, the record offers no support for a finding of any reason to so suspect.

As noted, defendant was cooperative at all times during his encounters with police. The radio

call was not sufficiently detailed to warrant a suspicion that defendant posed a risk of attack.

Unlike the situation presented in Ware, the officers did not observe a bulge in defendant’s

clothing, he was not observed in an area known for gun arrests, and he was not leaving a

“notorious location.” Ware, 264 Ill. App. 3d at 656, 636 N.E.2d at 1010-11. Had the officers

stopped defendant and conducted a further investigation of the call triggering their response, a

basis to search defendant might have arisen based upon a search incident to arrest based on

probable cause. Furthermore, attempting to justify the officers’ actions based on their efforts to

insure their own safety are understandable. However, they are unavailing when juxtaposed to the

circumstances of this case, where there was no basis to suspect the presence of weapons or risk

of attack. As additional support for the officers’ actions, the State points out the recognition that

-18- 1-09-0792

domestic violence situations are potentially dangerous, hazardous, and unpredictable for officers.

This claim harkens back to our conclusion in People v. Rivera, “We find that the mere fact that

an officer believes drug dealers carry weapons or narcotic arrests involve weapons is insufficient

alone to support reasonable suspicion to justify a Terry frisk.” People v. Rivera, 272 Ill. App. 3d

502, 509, 650 N.E.2d 1084, 1090 (1995). We are equally reluctant to believe the nature of

domestic disturbances is sufficient to justify such an intrusion.

Consequently, the trial court’s order granting defendant relief on his motion was not in

error. Although there may well have been a reasonable suspicion to warrant a Terry stop, that is

simply not what occurred. The trial court correctly concluded defendant’s arrest was not lawful.

The State further argues the trial court’s suppression of the bullets found in defendant’s

vehicle was erroneous. According to the State, that evidence was discovered by virtue of a valid

inventory search, as a lawful search incident to a valid arrest, or, in the alternative, the bullets

were subject to the inevitable discovery rule. The towing and inventory search occurred

subsequent to defendant’s arrest. According to Dervisevic, after advising defendant of his

Miranda rights, he asked him whether he had a car. Defendant responded affirmatively and

described where it was parked. Dervisevic then, in order to “make sure prisoner [sic] property is

safe,” returned to the 1300 block of Argyle and located the car, which was parked illegally in a

designated handicapped parking spot. Dervisevic issued a citation, requested a tow truck, and

conducted a search wherein he found ammunition matching the caliber of the handgun recovered

from defendant. The State describes Dervisevic’s conduct as falling within the rubric of the

“community caretaking function” of the police.

-19- 1-09-0792

In Wong Sun v. United States, the Supreme Court determined that evidence obtained by

virtue of an illegal arrest may trigger the application of the exclusionary rule, making such

evidence inadmissible against a defendant. Wong Sun v. United States, 371 U.S. 471, 484-86, 9

L. Ed. 2d 441, 453-54, 83 S. Ct. 407, 415-17 (1963). Yet, a conclusion that a defendant was

illegally detained is not the sole consideration in determining whether evidence obtained

subsequent to the detention will be admissible. People v. Johnson, 237 Ill. 2d 81, 92, 927 N.E.2d

1179, 1186 (2010), citing People v. Lovejoy, 235 Ill. 2d 97, 130, 919 N.E.2d 843, 861 (2009). In

Lovejoy, where the defendant sought the exclusion of certain statements, our supreme court

explained:

“The relevant inquiry is whether the statements bear a sufficiently close relationship

to the underlying illegality. New York v. Harris, 495 U.S. 14, 19, 109 L. Ed. 2d 13,

21, 110 S. Ct. 1640, 1643 (1990). Generally, courts resolve this question by

considering whether the evidence was obtained ‘by means sufficiently distinguishable

to be purged of the primary taint’ of illegality. Wong Sun v. United States, 371 U.S.

471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417 (1963). However, this

attenuation analysis is only appropriate where the evidence sought to be suppressed

was actually obtained as a result of some illegal government activity. Harris, 495

U.S. at 19, 109 L. Ed. 2d at 21, 110 S. Ct. at 1643; People v. McCauley, 163 Ill. 2d

414, 448 (1994) (‘[w]hen police conduct results in a violation of constitutional rights,

evidence obtained as a result of that violation, and only evidence so obtained, is to

be suppressed’); People v. Gervasi, 89 Ill. 2d 522, 528 (1982) (‘[t]he basic

-20- 1-09-0792

assumption underlying the “fruit of the poisonous tree” doctrine is that the challenged

evidence is derived from some violation of a statutory or constitutional right’

(emphasis in original)).” Lovejoy, 235 Ill. 2d at 130, 919 N.E.2d at 861.

Given the state of this record, we reject the claim that the series of events described is

sufficient to remove the taint of illegality. Each event followed and flowed from the initial,

unlawful arrest of defendant. We do not discern a break in the chain sufficient to attenuate the

recovery of this evidence from the initial illegality of the arrest. Moreover, the State’s

characterization of Dervisevic’s actions as manifesting a “community caretaking function” is

similarly unavailing. A review of case law makes clear that the concept of “community

caretaking” is most often invoked to describe encounters between police officers and citizens and

not, necessarily, for the protection of property. See Luedemann, 222 Ill. 2d at 548, 857 N.E.2d at

198.

Unquestionably, a police officer, such as Officer Dervisevic, would be empowered and

properly ought to issue citations to vehicles illegally parked, as well as towing them when

warranted. However, our research did not disclose any cases where vehicles towed for parking

violations were subject to inventory searches. Likewise, no cases were identified by the State or

revealed by our research wherein a parking violation subject to towing provided probable cause

to search. As noted, reasonableness is the fundamental consideration in fourth amendment

analyses. See Luedemann, 222 Ill. 2d at 566, 857 N.E.2d at 208. Consequently, even if the

parking violation, inventory search, and tow were separated from defendant’s unlawful arrest, the

search was unreasonable in fourth amendment terms as lacking sufficient probable cause.

-21- 1-09-0792

The State additionally points to the inevitable discovery doctrine an exception making the

ammunition found in the vehicle admissible against defendant. This exception permits evidence

“to be admitted where the State can show that such evidence ‘would inevitably have been

discovered without reference to the police error or misconduct.’ Nix v. Williams, 467 U.S. 431,

448, 81 L. Ed. 2d 377, 390, 104 S. Ct. 2501, 2511 (1984); [citation].” People v. Sutherland, 223

Ill. 2d 187, 228, 860 N.E.2d 178, 209 (2006). We cannot conclude this evidence would have

been inevitably discovered based on the record before us. The “ ‘police error or misconduct’ ” is

inextricably linked to the discovery of this evidence. As noted, we rejected the State’s argument

as to the inventory search based on the parking violation. Since the State’s argument in favor of

inevitable discovery is unmistakably linked to the matter of illegal parking, we find this argument

similarly meritless.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

FITZGERALD SMITH and HOWSE, JJ., concur.

-22-