Constitutional law - plain view observation of bullet warrants protective sweep of vehicle despite potential lawful explanations.

• Author: Campers, Susan
• Position: Case note

Constitutional Law--Plain View Observation of Bullet Warrants Protective Sweep of Vehicle Despite Potential Lawful Explanations--People v. Colyar, 996 N.E.2d 575 (Ill. 2013)

The Fourth Amendment protects the right of the people to be free from "unreasonable searches and seizures." (1) Despite this constitutional guarantee, the Supreme Court has carved out numerous exceptions to the warrant requirement, most notably, allowances for searches made in the interest of police officer safety. (2) In People v. Colyar, (3) the Illinois Supreme Court confronted the issue of whether a bullet observed in a vehicle during a lawful encounter was sufficient to justify a protective sweep of the vehicle despite the fact that possessing a bullet is not per se illegal. (4) The court held that a protective search for weapons was justified under the circumstances. (5)

At approximately 8:45 p.m. on June 29, 2006, two Homewood police officers observed a vehicle containing the defendant and a companion blocking the entrance to a motel parking lot. (6) As the officers approached the idling vehicle, a third passenger exited the motel and got into the backseat. (7) During a brief conversation with the occupants of the vehicle, the officers observed in plain view a large bullet inside a plastic bag in the center console. (8) Upon noticing the bullet, the officers immediately ordered the occupants out of the vehicle, handcuffed them, and retrieved the plastic bag containing five rounds of live ammunition. (9) A pat-down search of the defendant revealed a sixth bullet, prompting the officers to conduct a protective sweep of the vehicle for weapons. (10) During the sweep, the officers recovered a.454 revolver under the front passenger side floor mat. (11)

As a result of the search, the officers arrested Colyar, charging him with multiple weapons offenses. (12) The trial court denied the defendant's motion to suppress the bullets ruling the seizure was valid pursuant to an investigatory stop, but granted his motion to suppress the gun, finding that requisite probable cause to arrest did not exist. (13) Upon reconsideration, the Circuit Court of Cook County ordered that all of the bullets be suppressed because the officers did not eliminate a lawful explanation for the bullets by requesting a Firearm Owner's Identification (FOID) card. (14) The Illinois Appellate Court reiterated that probable cause did not exist, while acknowledging that the State may have intended to argue the search was valid under Terry v. Ohio, (15) and affirmed. (16) The Illinois Supreme Court granted the State's leave to appeal, and reversed the lower court's order suppressing the evidence, holding that the State did not forfeit its Terry argument. (17) The State's highest court held that plain-view observation of a bullet was sufficient to raise reasonable suspicion that a gun may be present in the vehicle, justifying a protective sweep of the passenger compartment. (18)

The United States Supreme Court's recent decisions have established the principle that reasonableness is the touchstone of Fourth Amendment analysis. (19) The Fourth Amendment was originally included in the Constitution to protect against the evil that were general search warrants exacted upon colonists by the English crown, and warrantless searches remained an almost foreign idea until the twentieth century. (20) Although the Fourth Amendment requires a showing of probable cause before a search warrant can be issued, the trend has shifted towards welcoming more and more exceptions to the general rule. (21) In Terry, the Supreme Court held that an investigatory stop is justified where the officer has reasonable suspicion based on articulable facts that criminal activity is afoot, and a frisk for weapons is justified when the officer reasonably believes the suspect is armed and dangerous. (22) The Court applied a reasonableness standard balancing an individual's privacy interest against the interest of officer safety. (23)

The Supreme Court has recognized that for the duration of a traffic stop, the occupants of the vehicle have effectively been seized in much the same way a person on the street is seized during an investigatory stop. (24) Because occupants are briefly detained by virtue of the traffic stop, and police encounters involving vehicles are inherently more dangerous, the Supreme Court has held that it is reasonable for officers to order the driver and his passengers out of the vehicle as a safety precaution. (25) Although a valid Terry frisk requires a lawful investigatory stop as well as a reasonable belief that the suspect is armed and dangerous, the first prong of this test is necessarily met during a valid traffic stop. (26) In Michigan v. Long, (27) the Supreme Court extended the protective pat down of a person to a protective sweep of the passenger compartment of a vehicle where the suspect was a recent occupant and the officer reasonably believes the suspect is armed and dangerous and could use a weapon in the vehicle to harm him. (28) Whether or not handcuffing necessarily escalates an investigatory stop to an arrest depends on the totality of the circumstances, and may be a mere indication of the officer's attempt to maintain a safe and stable environment to conduct the brief detention. (29) Additionally, some courts have recognized the constitutionality of protective frisks arising from consensual encounters, noting the same interests and analysis involved in traditional on-the-street or traffic-violation stops. (30)

Reasonable suspicion does not require that the conduct or item that raises suspicion during the encounter be illegal on its own. (31) Rather, it must only be proven that the officer possessed reasonable suspicion that a weapon may have been present and his safety may have been endangered. (32) While no case has reached the Supreme Court on whether plainly viewing bullets is sufficient cause to search the passenger compartment of a vehicle, several lower courts have determined that ammunition does give rise to reasonable suspicion that a gun may be present. (33)

In People v. Colyar, the officers' approach of the defendant's vehicle began as a valid exercise of police community caretaking, but escalated into an investigatory stop meriting a protective sweep upon plain view of the bullet. (34) Determining an argument under Long had not been waived by the State on appeal, the court expounded on the quintessential purpose of Terry jurisprudence: officer safety. (35) Upon seeing the bullet in the center console of the vehicle, the officers were justified in ordering the occupants out of the car. (36) While recognizing that handcuffing is not always permissible during investigatory stops, the court held it was appropriate under the totality of the circumstances because the officers were outnumbered, it was dusk, and the officers could reasonably suspect one of the three passengers possessed or could reach a gun within the vehicle if not secured by handcuffs. (37) Because it was dusk, the officers were outnumbered, and they had approached an idling vehicle on foot, and only briefly conversed with the defendant before noticing the bullet, the court held the officers had reasonable suspicion to pat down the defendant and perform a protective sweep of the vehicle. (38) When faced with a potentially dangerous situation, officers are not required to adopt less intrusive means whereby they may need to sacrifice their safety. (39)

The court applied an objective standard to determine whether the officers' actions were justified under the facts as presented on the evening of the incident. (40) Recognizing that bullets are not per se contraband, the court reasoned that a person of ordinary sensibility would infer upon discovering bullets in the vehicle and on the defendant's person that a gun was likely present in the vehicle. (41) While a request for a valid FOID card may have assured the officers that any weapon inside the vehicle was carried legally, it would not necessarily dispel officers' concern for their safety. (42) Noting that probable cause to arrest did not exist, the court found even more reason to permit the protective sweep given the imminent release of the defendant to return to his vehicle if probable cause could not be satisfied. (43) Although the facts of this case are unique because the incident began as a consensual encounter rather than during a traffic stop, the court was untroubled by this scenario and explained that the observation of a bullet escalated the incident into a situation requiring heightened awareness for officer safety. (44) Thus, by applying the rationales set forth in Terry and Long, and giving credence to the officers' reasonable inferences regarding the presence of a gun and imminence of danger, the Illinois Supreme Court authorized the protective sweep of a vehicle upon the plain-view observation of a bullet even though the...