In re Tyreke H., 2017 IL App (1st) 170406 (September). Episode 402 (Duration 10:10)

Kid on a bike is stopped because he’s a witness to a murder, then they see a gun in his pocket.

Charges

The State filed a petition for adjudication of wardship, charging Respondent with two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of firearms (UPF).

Facts

Plain clothes officers driving in an unmarked car were looking for the the minor respondent because he was wanted for questioning in a homicide.

The officers saw an individual they believed to be Respondent riding a bicycle.

Both Respondent and the officers were traveling eastbound. The officers drove past Respondent, visually confirmed his identity, and stopped the car just in front of Respondent, just east of him, so that he would ride directly to them.

Police notice a bulge in Respondent’s right front jeans pocket.

The Bulge

They get his name and Respondent cooperated, and made no furtive movements either before or during the stop. Officer Ludwich testified that, after they confirmed that Respondent was Tyreke H., it was Officer Ludwich’s intention to ask Respondent some questions and ask whether he was willing to go down to the station. Officer Ludwich came around the rear of the car and approached Respondent from behind. When he was about four feet away, he saw the bulge in Respondent’s pocket.

Silutoutte Of A Gun

He testified that this bulge appeared “to be basically a handgun in [Respondent’s] right front pants pocket.” Officer Ludwich also stated that “[i]t was a silhouette of a handgun in a front jeans pocket.”

Officer Ludwich had recovered a handgun “hundreds” of times during his 23-year career with the Chicago police department. And, in his opinion, the bulge in Respondent’s pocket was “different than what a typical wallet or set of keys would look like.”

Tap & Pat Down

Before conducting a protective pat down of Respondent, Officer Ludwich tapped Respondent’s right pant pocket to confirm, for officer safety, whether it was a firearm. Officer Ludwich described what he felt as a “hard metallic nonyielding touch.”

Based on what he felt when he tapped Respondent’s right front pants pocket, Officer Ludwich “believed” and “knew” it was a gun in Respondent’s pocket.

He said, “What’s this?”

Respondent replied, “It’s a gun. I need it for protection.”

Officer Ludwich performed a protective pat down and recovered a .22 caliber AMT semiautomatic handgun with six live rounds, five in the magazine and one in the chamber.

Officer Ludwich testified that the gun was approximately seven inches long. The weapon was inventoried, and Respondent was arrested.

Issue

Respondent raises two issues regarding his encounter with the police officers.

He says he was unreasonably seized in violation of the fourth amendment, and that he was unreasonably searched in violation of the fourth amendment.

Respondent says that the police seized him when they blocked his path, forcing him to stop his bicycle and answer questions, and that they did so without any reasonable, articulable suspicion that Respondent had committed a crime.

Mendenhall Factors

The Illinois Supreme Court has stated that “the absence of Mendenhall factors, while not necessarily conclusive, is highly instructive.” Luedemann, 222 Ill. 2d at 554.

The United States Supreme Court has identified the following four factors that indicate a seizure:

(1) the threatening presence of several officers,

(2) the display of a weapon by an officer,

(3) some physical touching of the person, or