{ "id": 2555420, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHELLE SWISHER, Defendant-Appellee", "name_abbreviation": "People v. Swisher", "decision_date": "1990-12-20", "docket_number": "No. 4-90-0316", "first_page": "125", "last_page": "130", "citations": [ { "type": "official", "cite": "207 Ill. App. 3d 125" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "450 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557978 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0809-01" ] }, { "cite": "457 N.E.2d 1252", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "99 Ill. 2d 219", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164336 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/99/0219-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "541 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 231", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2645694 ], "pin_cites": [ { "page": "236-37" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0231-01" ] } ], "analysis": { "cardinality": 554, "char_count": 9041, "ocr_confidence": 0.75, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.43691022140673064 }, "sha256": "11e6881769abeb7d00bfa8a1de0fec62382668e2a078587add0df65fbcb33d7f", "simhash": "1:5fcab3acabc80f7e", "word_count": 1577 }, "last_updated": "2023-07-14T17:11:09.339704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHELLE SWISHER, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nOn January 14, 1990, Michelle Swisher, defendant, was charged with unlawful possession of cannabis in violation of section 4(b) of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56V2, par. 704(b)) and with unlawful possession of a controlled substance in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1402(b)). The defendant filed a motion to quash the arrest and suppress the evidence. Following a hearing on that motion on April 27, 1990, the trial court granted the defendant\u2019s motion to suppress. The People appeal, and the issue before this court is whether the trial court erred in finding that the police had made an improper Terry-type stop when they walked up to a parked car in which they had seen suspicious movement.\nThe witnesses presented at the hearing on the motion to suppress were Urbana police officers Baird and Royal. Officers Baird and Royal were on routine patrol in the City of Havana in a police vehicle. While on patrol, Officer Baird, as the driver, exited an alley when Officer Royal stated he saw a person in a car parked in a parking lot \u201cduck down.\u201d After the officers went by, Officer Royal turned around and saw the \u201cperson come back up.\u201d The officers pulled into the parking lot, shut the lights off and approached the vehicle on foot. Officer Royal went to the passenger side, Officer Baird to the driver\u2019s side, and they simultaneously turned their flashlights on to check the occupant of the vehicle. Baird at the same time knocked on the driver\u2019s side window and asked for identification and Royal opened the passenger door and ordered the defendant out. After the defendant exited, Baird saw a small mirror, a white powdery substance, and a \u201cbaggy [sic]\u201d containing a white powdery substance with a twist tie in the vehicle. Officer Royal testified he saw the white mirror with a white powder on it \u201cas soon as I turned the light on.\u201d The car was parked near a tavern, \u201cdirectly north of the tavern.\u201d Other cars were parked in the lot, and the tavern, as well as the nearby corner cafe, were open for business.\nThe officers did not activate- any emergency lights or siren or engage in any other conduct to effectuate a stop of the defendant.\nOn cross-examination, when asked the purpose of an officer on each side of the car, Baird stated \u201c[i]n the event there was more than one occupant of the car, we didn\u2019t want them leaving until we found out what they were doing.\u201d\nThe trial court found that \u201cthe leaning forward or slinking down behavior *** was the crux of the officers\u2019 suspicion.\u201d The trial court determined there had been a stop when \u201cthe officers approached the car and had determined to place themselves on each side of the car so that certain egress was effectively blocked and the identification was asked for at the same time. I think there was a stop, and I think based on the case law and my feeling about the nature of the conduct observed here, that there simply wasn\u2019t a reasonable articulable suspicion that rose to the level that permitted an investigatory stop.\u201d\nWithout the necessity of citation, it is clear that a trial court\u2019s ruling on a motion to suppress will not be disturbed unless it is against the manifest weight of the evidence.\nThis court adopts the following statements made by the Second District Appellate Court in People v. Clark (1989), 185 Ill. App. 3d 231, 236-37, 541 N.E.2d 199, 202-03:\n\u201cThe purpose of the fourth amendment is not to eliminate all contact between the police and citizens, and as long as the person to whom questions are put remains free to disregard the questions and walk away, there is no intrusion upon that person\u2019s liberty or privacy which would require some particularized and objective justification. (Mendenhall, 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at 1876.) A'person has been seized within the meaning of the fourth amendment only when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Royer, 460 U.S. at 501-02, 75 L. Ed. 2d at 239, 103 S. Ct. at 1326; Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.\nThe fourth amendment is not implicated where the police merely approach an individual on the street or in a public place and ask him if he is willing to answer questions, or put questions to him if the person is willing to listen. (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.)'The fact that a police officer identifies himself as such does not, without more, convert the encounter into a seizure. (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) A person approached by the police need not listen to or answer any questions and may go on his way, and his refusal to listen to or answer questions does not, without more, furnish reasonable, objective grounds to detain him, even momentarily. (Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) Examples of circumstances which might indicate a seizure would be the threatening presence of several police officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice indicating that compliance with the officer\u2019s request might be compelled. (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509,100 S. Ct. at 1877.) *** ***\nProfessor Wayne R. LaFave in his respected treatise on the fourth amendment states that \u2018the mere approach and questioning of such persons does not constitute a seizure,\u2019 and \u2018[t]he result is not otherwise when the officer utilizes some generally accepted means of gaining the attention of the vehicle occupant or encouraging him to eliminate any barrier to conversation\u2019 such as the officer tapping on the window. (3 W. LaFave, Search & Seizure \u00a79.2(h), at 415-16 (2d ed. 1987).) \u2018A request that the suspect open the door or roll down the window would seem equally permissible, but the same would not be true of an order that he do so.\u2019 3 W. LaFave, Search & Seizure \u00a79.2(h), at 416 (2d ed. 1987).\u201d\nPer the reasoning in Clark and United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, the trial court was correct in determining there was a stop. See also People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252; People v. Mills (1983), 115 Ill. App. 3d 809, 450 N.E.2d 935.\nA peace officer, after having identified himself as such, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit, or has committed an offense as defined in the Code of Criminal Procedure of 1963 (Code) and may demand the name and address of the person and an explanation of his actions. (Ill. Rev. Stat. 1989, ch. 38, par. 101 \u2014 1 et seq.) The detention and temporary questioning is to be conducted in the vicinity of where the person is stopped. Ill. Rev. Stat. 1989, ch. 38, par. 107 \u2014 14.\nIn this case, the only evidence presented to the court concerning whether the defendant was committing or was about to commit or has committed an offense was the testimony by Officer Royal that he saw the defendant duck down or make a rapid movement and lean forward in the vehicle. The trial court found \u201cthe leaning forward or slinking down behavior could still be an innocent act.\u201d\nSection 107 \u2014 14 of the Code is, in substance, similar to the Supreme Court\u2019s reasoning in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Per Terry, a police officer under appropriate circumstances may briefly detain a person for investigatory purposes. The trial court, in determining the merits of the motion to suppress, may look at all of the facts and circumstances, and even those which might constitute innocent behavior, if viewed separately, may provide reasonable suspicion justifying a stop when considered in their entirety. No factors such as lateness of the hour, whether the location was a high-crime area, or whether the car or its location was otherwise suspicious were presented. The only evidence is the testimony that Officer Royal saw the defendant duck down in the car. The trial court\u2019s finding that the defendant\u2019s actions as testified to by Officer Royal did not show sufficient specific, articulable facts to authorize the officers\u2019 intrusion is correct. Its decision was not against the manifest weight of the evidence.\nThe order of the Champaign County circuit court is affirmed.\nAffirmed.\nSPITZ and KNECHT, JJ., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Thomas J. Difanis, State\u2019s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Anthony E. Novak, of Anthony Novak & Associates, of Urbana, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHELLE SWISHER, Defendant-Appellee.\nFourth District\nNo. 4 \u2014 90\u20140316\nOpinion filed December 20, 1990.\nThomas J. Difanis, State\u2019s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nAnthony E. Novak, of Anthony Novak & Associates, of Urbana, for appellee." }, "file_name": "0125-01", "first_page_order": 147, "last_page_order": 152 }