People v. Evans, 2017 IL App (4th) 140672 (March). Episode 327 (Duration 7:49)

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

Facts

Officer is responding to a call of a possible burglary.

He sees defendant walking.

He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.

Safety Concern

He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.

Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.

Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.

Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.

Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.

Issue

On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”

Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.

The central point of inquiry is at what point was defendant seized.

Mendenhall Factors

The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.

Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.

Officer’s Questions

This defendant’s path of travel was not blocked or interfered with in any way.

The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.

No Seizure

The initial encounter here was a consensual encounter.

None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.

Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.

First Request To Hands From Pockets

Defendant next argues he was seized at the moment the officer first requested­ he remove his hands from his pockets.

The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.

Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.

The fact defendant continued to place his hands back into his pockets shows defendant did not fully...