A Investigatory Stop/detention

• Library: Illinois Decisions on Search and Seizure (2017 Ed.)

A. Investigatory Stop/Detention

General Rules:

A pedestrian may not be stopped unless there is a reasonable suspicion, based upon objective facts, that he was involved in criminality. Brown v. Texas, 443 U.S. 47 (1979) (where police stopped defendant for identification because he "looked suspicious" but police could not point to any possible involvement in criminality, the seizure was impermissible).

The knowledge necessary to justify a finding of reasonable suspicion arises where there exists a "modest chance of finding evidence of wrongdoing." Safford v. Redding, 557 U.S. 364 (2009).

A defendant may not be detained "even momentarily" without some objective justification and his failure to stop does not furnish the police with ground for a stop. Florida v. Royer, 460 U.S. 491 (1983) (plurality).

1. Determining whether police-citizen encounter is consensual vs. seizure

General Rule: There is no seizure of a person and, accordingly, no need to justify the police action where the police-citizen encounter is consensual. United States v. Mendenhall, 446 U.S. 544 (1980) (plurality) ("[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by the officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with officer's request might be compelled." Here, a confrontation between DEA agents and defendant and the subsequent search of her person that yielded narcotics did not involve "seizure" because she consented).

Florida v. Bostick, 501 U.S. 429 (1991) (finding police boarding of buses and asking at random for and receiving consent to search passengers' luggage after informing passengers they could refuse search does not amount to a seizure of person).

California v. Hodari D., 499 U.S. 621 (1991) (holding even if police chase of juvenile suspect constituted show of authority, no seizure occurred where no physical contact with defendant nor evidence that defendant yielded to officer's show of authority and, accordingly, later police retrieval of cocaine juvenile abandoned as he ran off proper).

Michigan v. Chesternut, 486 U.S. 567 (1988) (finding defendant not seized when police cruiser approached street intersection where he was standing and he ran away discarding drugs eventually picked up by police).

Florida v. Rodriguez, 469 U.S. 1 (1984) (finding defendant not seized where initial encounter between police and defendant at airport arose by police asking defendant if he would step aside and talk to them which he agreed to do).

Immigration & Naturalization Service v. Delgado, 466 U.S. 210 (1984) (INS agents entered three factories and found illegal aliens present. Some agents stood near the exits while others questioned employees at their worksites. The workers claimed a violation of their Fourth Amendment rights. HELD: There had been no reasonable threat of detention to workers who were lawfully present and most of the workers had no reasonable fear that they would be detained upon leaving. Further, the individual questioning of the workers concerning their citizenship did not amount to detention or seizure under the Fourth Amendment).

Brown v. Texas, 443 U.S. 47 (1979) (holding where defendant was detained while police required him to identify himself, there was a "seizure" within the terms of the Fourth Amendment. Here, a Texas statute that allowed for detention and identification of people on less than reasonable suspicion of criminal wrongdoing is unconstitutional).

United States v. Mendenhall, 446 U.S. 544 (1980) (finding a confrontation between DEA agents and defendant and the subsequent search of her person which yielded narcotics did not involve "seizure" because she consented).

People v. Bolden, 197 Ill. 2d 166, 756 N.E.2d 812 (2001) (holding refusal to allow defendant's counsel to observe lineup in which defendant participated did not convert encounter into a "seizure" where defendant voluntarily went to police station with his counsel and agreed to participate in lineup).

In re Rafeal E., 2014 IL App (1st) 133027, 14 N.E.3d 489 (Officers in Chicago were in a marked vehicle patrolling in a "high narcotics location." Officers first observed the defendant standing and talking with four to six other individuals at the mouth of an alley and later acknowledged that at that point defendant was not violating any laws. However, then defendant began walking briskly from the other individuals. The officers pulled alongside the defendant as he was walking on the sidewalk. Officers instructed the defendant to stop walking and take his hands out of his pockets. The defendant complied and put his hands up in the air. In doing so, the defendant's shirt lifted up exposing a ziploc bag tucked in his pants. Officers then conducted a search of the defendant's person, leading to the discovery of 10 knotted baggies of crack cocaine and arrested the defendant. Following his arrest, the defendant filed a motion to quash arrest and suppress evidence, arguing the police lacked the probable cause or reasonable articulable suspicion of criminal activity needed to seize him. In denying the defendant's motion, the trial court found that an officer had probable cause "based on seeing the bag and his experience as a police officer." The trial court also found that seeing the zip-loc bag created a duty for the officers to investigate further. The trial court found that a search incident to arrest was proper after the officers recovered the ziploc bag from the defendant. At trial, the court found the defendant was illegally in possession of a controlled substance and adjudged him a delinquent minor. In appealing the trial court's verdict, the defendant argued that the court erred in finding that the police had sufficient reasonable suspicion and that the seizure of the ziploc bag from his pants was beyond the scope of a Terry stop. HELD: Whether a seizure occurred, which "presupposes a reasonable innocent person," depends on whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 438 (1991). In this case, a Terry stop occurred when the officers ordered the defendant to stop walking, take his hands out of his pockets, and "put his hands up." The officers made a show of authority by their "use of language or tone of voice indicating that compliance with the officer's request might be compelled." People v. Cosby, 231 Ill. 2d 262, 274 (2008) (quoting U.S. v Mendenhall, 446 U.S. 544, 554 (1980)). Moreover, the police lacked the necessary legal basis for a Terry stop. Reasonable suspicion needs to be based on more than watching an individual "briskly walk" away from a group of individuals in a high-crime neighborhood. The holding in Illinois v Wardlow, 528 U.S. 119 (2000) cannot be expanded to uphold the police action in the present case. "Wardlow involved headlong flight into an alley and away from police vehicles." In contrast, the present case involved "briskly walking away from an alley and also away from a group of individuals." The verdict of the trial court was reversed.)

In re Kendale H, 2013 IL App (1st) 130421, 3 N.E.2d 419 (Two Chicago police officers on patrol in a "high crime area" saw three individuals, one being the juvenile, walking down a street. The officers decided to conduct a field interview of the individuals. At that time, the officer had no reason to believe that the juvenile was involved in any criminal activity. As the officers drove towards the individuals, the three individuals split up and walked in different directions. The juvenile walked through a vacant lot with his hands in his pocket. As the officers drove into the lot to follow the juvenile he started to run. After a chase of the juvenile, an officer shot the juvenile in the abdomen. Subsequent to the shooting, the juvenile was arrested and a shell casing was found in his pocket. Thereafter, the State filed a petition for adjudication of wardship for possessing firearm ammunition without a FOID card. The juvenile filed a motion to suppress the ammunition on the ground that it was the product of an unreasonable search and seizure. The trial court granted the motion to suppress finding that simply being in a high crime neighborhood was enough to justify an investigatory stop, that the incident occurred in October in Chicago and it was not unusual for individuals walking to have their hands in their pockets. The State filed a motion to reconsider. The trial court upheld its decision granting the motion to suppress finding that the juvenile was seized during the officers' vehicular chase of the juvenile as he ran on foot. The State appealed. HELD: The juvenile was not seized while he was still running away from the officers (California v. Hodari, 499 U.S. 621 (1991)), but he was seized when he was shot in his abdomen and fell to the ground (People v. Luedemann, 222 Ill.2d 530, 857 N.E.2d 187 (2006)). The juvenile was unquestionably seized "by means of physical force" when the shot to his abdomen caused him to fall to the ground; he was obviously not able to "terminate the encounter" with the police. Further, the four factors delineated in United States v. Mendenhall, 446 U.S. 544 (2008), regarding seizures under the Fourth Amendment were satisfied: (1) the officers use of a weapon made their presence more than threatening; (2) the officer displayed and used a weapon; (3) the shooting constituted a physical touching; and (4) the force used indicated that compliance was required. Further, the words "high crime area," as used in Illinois v. Wardlow, 528 U.S. 119 (2000)...