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Victor D. Quilici
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| People v. Parra, 352 Ill. App. 3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04) | ||
| A second district Illinois appellate court decision, issued on 10/12/04, warrants a review based on two issues. The first deals with a question often raised—that is, whether the mere carrying of a FOID card can be used by law enforcement officers as part of an underlying “reasonable suspicion” that the card carrier has a firearm in his automobile. The second deals with the Court’s analysis of a traffic stop and search based on “Terry” stop and frisk principles, which may be compared and contrasted to the “closely related offense” view taken by the federal 9th Circuit Court of Appeals in Devenpeck et al., v. Alford, which was recently overturned on appeal before the U.S. Supreme Court. Devenpeck was recently reviewed and summarized on this site and can be viewed at “Current Case Review.” | ||
| Summary of pertinent facts: A police officer stopped the defendant’s vehicle for failure to signal a turn, not coming to a full stop at a stop sign, and fast tire-screaching acceleration. When the defendant opened his glove box to show the officer his license and insurance documentation, the officer noticed latex gloves in the glove box. Based on prior information that gang members had been using latex gloves in handgun crimes, and the officer’s observation of the defendant’s FOID card in his wallet, the officer told his back-up that he suspected the defendant was in possession of a firearm and/or drugs. | ||
| Although a computer check by the officer showed no outstanding warrants and no indication of “gang affiliation” by the defendant, he then asked the defendant if he had any weapons or drugs on his person to which defendant replied he did not. The officer then asked to search the defendant and he agreed to a “pat down” search; then asked if he had any guns, drugs or other illegal items in his vehicle, to which the defendant replied in the negative. Defendant also agreed to a search of his vehicle when asked to by the officer, and the officer found a gun beneath the dashboard, and arrested the defendant. | ||
| Charges and Decision of Trial Court: Defendant was indicted for Unlawful Use of Weapon (UUW) pursuant to 720 ILCS 5/24-1(a)(4) and Aggravated Use of Weapon, under 720 ILCS 5/24-1.6(a)(1). The defense filed a motion to quash the arrest and to suppress evidence (stating that defendant was unconstitutionally seized when the officer asked him for consent to search his person and vehicle) which the Trial Court granted. The State then appealed that decision. | ||
| Appellate Court Decision: The Appellate Court affirmed, reviewing de novo the ultimate question of “whether reasonable suspicion justified the stop and the officer’s subsequent actions.” Because the Court viewed the traffic stop as more analogous to a “Terry” investigative stop, than to a formal arrest, the “reasonableness” of the traffic stop was analyzed under “Terry” principles. Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968). The following are highlights of Justice Grometer’s opinion, Hutchinson and Callum, JJ., concurring, with some omissions not noted in the quoted text: | ||
| “. . . On appeal the State argues that the questioning and search of the defendant did not result in an unconstitutional seizure because the officers had a reasonable suspicion of criminal activity. | ||
| “. . . The temporary detention of drivers or passengers during a vehicle stop constitutes a “seizure” of “persons” within the meaning of the Fourth Amendment to the United States Constitution. People v. Gonzalez, 204 Ill. 2d 220, 225, 789 N.E. 2d 260 (2003). . . .Under Terry, a law enforcement officer may, within the limits of the Fourth Amendment, conduct a brief investigative stop of individuals, absent probable cause to arrest, provided that the officer has a reasonable articulable suspicion of criminal activity. [Gonzalez, 204 Ill. 2d at 227]. If a detention exceeds what is permissible as a Terry stop, a subsequent consent to a search may be found to be tainted by the illegality. People v. Brownlee, 186 Ill. 2d 501, 519, 239 Ill. Dec. 25, 713 N.E. 2d 556 (1999). | ||
| “. . . Applying the Gonzalez framework, we hold that [the officer’s] questioning fails to satisfy the second prong of the Terry analysis. First, [the officer’s] question regarding contraband and request for consent to search defendant and his vehicle were unrelated to the initial purpose of the stop, the three traffic violations. | ||
| “Because the questions were not related to the initial purpose of the stop, we next consider whether [the officer] had a reasonable articulable suspicion of criminal conduct that justified the questioning. The State argues that the questioning was justified based on (1) [the officer’s] observation of the latex gloves, (2) his observation of the FOID card, [emphasis added] and (3) the fact that the stop occurred in a “high crime area.” We hold that these facts, viewed individually or taken together, did not provide [the officer] with a reasonable, articulable suspicion of criminal activity that justified his questioning of defendant. | ||
| “First, [the officer’s] observation of the latex gloves did not support a reasonable articulable suspicion of criminal activity. Even though [the officer] had been advised that gang members were using latex gloves during the commission of handgun crimes, he had no information that the defendant or the passenger was a gang member. | ||
| “ . . . Second, the fact that the stop occurred in a high-crime area is also insufficient to support reasonable suspicion. [citations omitted]. | ||
| “Finally, defendant’s FOID card indicated only that he owned a firearm, and the mere ownership of a firearm is not illegal. The card did not indicate that defendant was illegally carrying a firearm in the vehicle. Thus [the officer’s] observation of the FOID card did not warrant a reasonable suspicion of criminal activity. We also note that, because an individual must possess a FOID card in order to acquire or possess a firearm, allowing an officer to question a driver and search his or her car based on the observation of a FOID card would penalize the driver for complying with the law [emphasis added]. | ||
| “ The state cites People v. Ross, 289 Ill. App. 3d 1013, 224 Ill. Dec. 526, 682 N.E. 2d 87 (1987) as support for its argument that the FOID card provided [the officer] with reasonable suspicion of criminal activity. [ The Court here distinguished Ross, noting that in ruling there was not a fourth amendment violation, the reviewing court in Ross reasoned that the questioning and search was justified because of the officer’s safety concerns, and in this case ‘the State does not argue that [the officer] requested consent to search defendant and his car out of a concern for his safety. Nor did [the officer] testify that that was the reason for the search. Thus the State cannot rely on Ross to justify the questioning and search of defendant.’] | ||
| “ Because [the officer’s] questioning was not related to the purpose of the stop and was not supported by a reasonable, articulable suspicion of criminal conduct, we next consider whether the questioning prolonged defendant’s detention or changed the fundamental nature of the stop. In People v. Bunch, 207 Ill., 2d 7, 17, 277 Ill. Dec. 658, 796 N.E. 2d 10024 (2003), the court held that questioning that occurred after the purpose of the stop had concluded impermissibly prolonged the detention of the defendant. Such is the case here. | ||
| “ . . . Moreover, the questioning changed the fundamental nature of the stop. To issue the defendant a warning ticket for the traffic violations, [the officer] needed only to obtain defendant’s license and registration, run a computer check, and issue the warning ticket. By asking whether defendant had contraband and asking to search him and his vehicle, [the officer] ‘converted a routine traffic stop into a fishing expedition.’ People v. Hall, 351 Ill. App. 3d 501, 505, 286 Ill. Dec. 785, 814 N.E. 2d 1011 (2004). Accordingly, defendant’s detention, following the conclusion of the purpose of the traffic stop, was unreasonable within the meaning of the fourth amendment and tainted the resulting discovery of the handgun. [See Bunch, supra, at p.20]. | ||
| “The judgment of the circuit court of Kane County is affirmed. “Affirmed.” | ||
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