|Search & Seizure
Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07).
People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District.
United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006)
People v. Miller, 824 N.E. 2d 1080 ,
Illinois 1st District Appellate Court (2-7-05).
HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159
People v. Dieppa, 357 Ill.
App. 3d 847
ILLINOIS v. CABALLES. U.S.
Supreme Court (1/25/05)
writ of certiorari to the Supreme Court of Illinois. 03-923
DEVENPECK et al. v. ALFORD No.
People v. Parra, 352 Ill. App.
3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04)
People v. Travis Smith, 346
Ill. App. 3d 146, 803 N.E. 2d 1074
People v. Starbuck, 358 Ill
App. 3d 234 (3rd Dist. 2005)
People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct.,
People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005)
and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)
The 2d District District Appellate Court, in a search & seizure case,
while addressing an issue of voluntarism of a consent to search, appears to
have opened the door to a wide- sweeping rule justifying “pat-down” searches.
The dissent opinion in this case is a “must read” to ensure a thorough
understanding of how far “reasonable suspicion” and “exigent circumstances” can
be stretched to justify detention of an individual not arrested.
The issue is referred to as one of first impression in Illinois—that is,
whether the need to transport a person in a police vehicle, who is not under
arrest, gives rise to an exigency that justifies a pat-down search for weapons.
See: People v. Travis Smith, 346 Ill. App. 3d 146, 803 N.E. 2d
Summary of Facts: The defendant was one of three passengers in
a vehicle stopped for speeding and failure to signal lane changes. The driver
failed a field sobriety test (PBT) as did the defendant and one other
passenger. The driver was placed under arrest for DUI, and the defendant and
the other passenger who failed the PBT were deemed by the officer to be too
intoxicated to drive the vehicle. The 3rd passenger had no valid
drivers license. Also, because of the existing statutory provision in the
vehicle code relating to unsafe passage by a pedestrian on the highway, and the
extent of the parties’ intoxication, as viewed by the officer and his back-up,
the passengers were not allowed to walk to the nearest exit. Instead, they were
given the option to call for assistance, but were unable to do so, and,
alternatively, to be driven off the highway in squad cars.
The defendant submitted to a pat-down search after being told by a back-up
officer that it was the Department’s policy to have all passengers frisked for
weapons before being allowed to ride in a squad car. While patting down the
defendant the officer felt a bulge in his left sleeve, and when he asked the
defendant what it was the defendant admitted it was a gun. The officer
recovered a loaded .25-caliber semiautomatic handgun and immediately placed the
defendant under arrest.
Summary of Court’s Findings: On motion to quash the arrest and
suppress the seized handgun the defendant contended he gave no valid consent to
the search and that it was given pursuant to a show of authority. The trial
judge, while holding the consent was voluntary, granted the motion and held
that the consent was tainted by the illegal detention that resulted from the
officers’ comments and actions.
The Appellate Court reversed and remanded. Justice
Kapala, with Justice O’Malley concurring, writing the majority
opinion, found that the Court could look to precedent in other jurisdictions,
i.e., California, Michigan, Rhode Island, where it has been held that the need
to transport a person in a police vehicle is an exigency that justifies a
pat-down search for weapons. Looking further beyond Illinois borders, the
majority adopted the analysis in a concurring opinion in In re Kelsey
C.R., 243 Wis. 2d 422, 458, where Justice Sykes, joined by Prosser, J.,
“…[W]hen an officer is called upon in the course of his duties to transport an
individual in a squad car, he necessarily exposes himself to greater risks than
the ordinary field investigation. He will have his hands on the wheel, his eyes
on the road, and his back to his passenger, and, as such, is extremely
vulnerable to assault, much more so than in an ordinary field investigation.
Under these circumstances, I have no difficulty concluding that a weapons
frisk, even absent reasonable suspicion that the passenger-to-be is armed and
dangerous, is perfectly reasonable under the Fourth Amendment.
This is not to say that I would find every
search-incident-to-squad car-ride reasonable. There must be an objective
reasonable need or basis for providing the ride in the first place before the
prospective passenger can reasonably be subjected to a weapons frisk. It cannot
be pretextual. An officer cannot convert a routine traffic stop or field
investigation into an opportunity to search by conjuring up a reason to provide
The majority in Smith concluded that the detention was not illegal and
that the officer faced an emergency situation [ the passengers could not drive
the vehicle, and would violate the Vehicle Code provision prohibiting walking
off the highway in addition to posing a danger to their own safety] thereby
justifying police action that would otherwise be prohibited under the 4th
Amendment. Having adopted the Wisconsin Supreme Court’s concurring opinion
analysis, Justice Kapala stated in pertinent part:
“…[W]e hold that in this case a duty to transport defendant arose and that the
need to transport defendant in a police vehicle was an exigent circumstance
justifying the pat-down search of defendant’s outer clothing for weapons.”
Summary of Dissent: In a separate opinion Justice Byrne agreed
with the trial judge’s holding that the detention of the defendant was illegal
and tainted his consent to the pat-down search. He agreed with the trial
court’s determination that the defendant would have been arrested if he
attempted to drive or walk away, and that the officer had incorrectly implied
that the defendant was not free to leave the scene on foot. On this issue
Justice Byrne said (Highlights with some omissions not noted in the quoted
“ There was no affirmative evidence of defendant’s appearance or demeanor that
would suggest that he could not walk safely. The trial Court held that there
was inadequate evidence of defendant’s intoxication to justify detention, and I
conclude that the Court’s factual finding is not against the manifest weight of
After holding that the encounter with the passengers was a
‘community caretaking situation’ in which the defendant was not seized, the
majority incongruously concludes that the officers had a reasonable suspicion
that the defendant was about to violate section 11-1010 of the Vehicle Code and
that this suspicion justified defendant’s seizure. The analysis on this point
is dispositive, but the majority nevertheless states in dicta that under the
facts of this case there was an emergency situation that justified a seizure of
defendant’s person even without a reasonable suspicion that criminal activity
was about to be committed. … I agree with the majority that there is no
Illinois authority discussing whether such an exception exists, and I believe
that we should not create one here sua sponte, where we lack the parties’
argument on the extraneous issue.”
In conclusion Justice Byrne said:
“The majority has unnecessarily and substantially curtailed the fourth
amendment protections of motorists who become stranded on this State’s
roadways. The sweeping new rules announced herein authorize the government to
search pedestrians under the guize of providing a “courtesy ride” during a
community caretaking encounter. This opinion could be construed as condoning
the seizure and search of any person whose status as a stranded pedestrian, in
the officer’s opinion, creates a risk of harm to the pedestrian or other
motorists. I conclude that the motion to suppress was correctly granted in this
case and, for the preceding reasons, I respectfully dissent.”
NOTE: The Illinois 3rd District Court of Appeals, has taken up
the "emergency situation" banner raised by the 2nd District Court of Appeals in
Smith. After reading the full text of what the 3rd District panel has to
say, some may conclude that the Court’s assertion is merely simplex dictum.
Nevertheless, the citing of Smith should raise a red flag, even though
the so-called "emergency" exception was raised in dicta in Smith, which,
fortunately, was appealed to the Illinois Supreme Court. Smith was
argued before the State Supreme Court on 1/13/05 , and the decision will be
reported as soon as released.
In a non-firearm-related DUI case (decided on 4 May 2004) that was principally
resolved on issues regarding the defendant’s intoxication, the 3rd District
Illinois Appellate Court, in addressing the issue of propriety of the initial
police/defendant encounter in light of 4th Amendment safeguards,
found that the officer’s purpose in approaching the defendant’s vehicle
( pulled over on the side of the roadway) was to check on the welfare of
the driver rather than to conduct an investigation. The Court cited People v.
Smith (supra) for the proposition that there is an emergency exception
to the requirement that a seizure be supported by either probable cause to
arrest or reasonable suspicion of criminal activity.
While facts supporting an "emergency situation" were lacking in this case, and
the Court determined that the defendant was "technically detained," the 2nd
District Appellate Court’s ruling regarding the seizure in Smith was
significant enough for this panel to rely upon it in concluding that "[s]uch
assistance is designed to ensure public safety, and we do not believe that any
concomitant technical detention is unreasonable." See People v. Laake,
348 Ill. App. 3d 346, 809 N.E. 2d 769,772.
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