{ "id": 5244389, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MAX PENCE, Defendant-Appellee", "name_abbreviation": "People v. Pence", "decision_date": "1992-03-09", "docket_number": "No. 3-91-0339", "first_page": "1061", "last_page": "1064", "citations": [ { "type": "official", "cite": "225 Ill. App. 3d 1061" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "566 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548585 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0818-01" ] }, { "cite": "535 N.E.2d 837", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "127 Ill. 2d 153", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564623 ], "weight": 3, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0153-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 6, "pin_cites": [ { "page": "27" }, { "page": "909" }, { "page": "1883" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "546 N.E.2d 95", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 511", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2521879 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0511-01" ] } ], "analysis": { "cardinality": 425, "char_count": 6381, "ocr_confidence": 0.77, "pagerank": { "raw": 6.028478026514709e-08, "percentile": 0.37357699232657965 }, "sha256": "374dab87661ade332ff295491ee5471ebce436d54b8642e839b5d7f15fd9b70a", "simhash": "1:3432f2c4314108e6", "word_count": 1081 }, "last_updated": "2023-07-14T21:36:39.761728+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. MAX PENCE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nDefendant Max Pence was charged with unlawful possession of a weapon by a felon, unlawful use of weapons, theft and resisting a peace officer. The trial court granted defendant\u2019s motion to quash his arrest and suppress evidence. The State appeals. We affirm.\nPatrolman Robin Passwater of the Kankakee police department testified at the suppression hearing that he and patrolman James Alrandi were on patrol at 2:45 a.m. on September 30, 1990, when they saw defendant\u2019s car go through a stop sign. After the car was stopped, Alrandi obtained defendant\u2019s driver\u2019s license and returned to the squad car to run a license check and write a warning ticket. Passwater conversed briefly with defendant, who was alone in the car, and asked defendant for permission to search the car. Defendant agreed. By that time, another police unit was at the scene and patrolman Patrick Kane was standing on the other side of defendant\u2019s car. Passwater had defendant step out of the car and then asked him to turn around and put his hands on the car. A pat-down search of defendant revealed a handgun in defendant\u2019s jacket pocket. When asked why he frisked the defendant, Passwater responded:\n\u201cJust common procedure. It is for our own safety. Anybody steps out of a vehicle and is going to be standing next to you, we have to make sure they don\u2019t have anything on them.\u201d\nPasswater noted that he would ask permission to search a vehicle if he was \u201csuspicious at all.\u201d His suspicions were aroused in this case because of the time of night, the fact that the area was known for narcotics activity and because defendant\u2019s explanation that he was in the area to meet someone \u201cjust wasn\u2019t flowing right.\u201d Passwater agreed, however, that defendant was cooperative. When asked whether there were any other reasons that he was suspicious, Passwater answered:\n\u201cI don\u2019t know. I can\u2019t remember the way [defendant] was acting or anything. I believe he was pretty clam [sic] about the whole situation other than that, no. It\u2019s just basically because it\u2019s done on every stop over there now.\u201d\nDefendant testified that the police turned on their lights before he reached the stop sign and that he stopped and then turned at the corner and pulled over. After giving his license to Alrandi, Passwater asked the defendant if he had any marijuana or cocaine in the car. After defendant denied having any drugs, Passwater asked for permission to search the car and defendant agreed. Defendant was then asked to get out of the car and was searched.\nIn granting defendant\u2019s motion, the trial court found that defendant was properly stopped for a traffic violation. The court also found, however, that the search was unlawful, noting that \u201c[t]here seems to have been an amendment to the Constitution [which] says the Constitution shall not apply at night in high crime areas.\u201d\nThe fact that a police officer has reason to stop an individual does not necessarily justify the intrusion of a search for weapons. (People v. Brown (1989), 190 Ill. App. 3d 511, 546 N.E.2d 95.) A police officer is permitted to search for weapons when he has reason to believe that he is dealing with an armed and dangerous individual. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.)\n\u201cThe officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicions or \u2018hunch,\u2019 but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.\u201d Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.\nAt a hearing on a motion to suppress, it is the trial court\u2019s function to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.) A trial court\u2019s decision on a motion to suppress evidence will not be reversed unless it is manifestly erroneous. Galvin, 127 Ill. 2d 153, 535 N.E.2d 837; Brown, 190 Ill. App. 3d 511, 546 N.E.2d 95.\nUnder the facts of this case, we are unable to find that the trial court\u2019s decision to grant the motion to suppress was manifestly erroneous. Officer Passwater admitted that the defendant was calm and cooperative. There is nothing in the record to indicate that defendant acted in a manner which would lead a reasonably prudent person to suspect that he was armed. Indeed, Passwater did not testify that he felt the defendant was dangerous. Instead, Passwater searched the defendant because it was \u201c[j]ust common procedure\u201d and \u201cbasically because it\u2019s done on every stop over there now.\u201d While a police officer\u2019s subjective feelings do not determine whether a frisk is valid, \u201cthe testimony of an officer as to his subjective feelings is one of the factors which may be considered in the totality of the circumstances known to the officer at the time of the frisk.\u201d (Galvin, 127 Ill. 2d at 168, 535 N.E.2d at 843.) While Passwater testified that he was suspicious because the hour was late, there was a high level of narcotics activity in the area, and defendant\u2019s explanation that he was in the area to meet someone \u201cwasn\u2019t flowing right,\u201d those circumstances do not rise to the level of specific and articulable facts necessary to justify a search for weapons. (See People v. Kramer (1991), 208 Ill. App. 3d 818, 566 N.E.2d 756.) While we are cognizant of the dangers faced by police officers and the difficulties they encounter in attempting to balance their risk of harm against a citizen\u2019s constitutional rights, we are nevertheless duty bound to uphold those rights. The judgment of the circuit court is affirmed.\nAffirmed.\nBARRY, P.J., and GORMAN, J., concur.", "type": "majority", "author": "JUSTICE SLATER" } ], "attorneys": [ "William Herzog, State\u2019s Attorney, of Kankakee (Robert M. Hansen, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Joseph N. Ehmann, of State Appellate Defender\u2019s Office, of Ottawa, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MAX PENCE, Defendant-Appellee.\nThird District\nNo. 3-91-0339\nOpinion filed March 9, 1992.\nWilliam Herzog, State\u2019s Attorney, of Kankakee (Robert M. Hansen, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nJoseph N. Ehmann, of State Appellate Defender\u2019s Office, of Ottawa, for appellee." }, "file_name": "1061-01", "first_page_order": 1087, "last_page_order": 1090 }