{ "id": 4284735, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARCO JACKSON, Defendant-Appellee", "name_abbreviation": "People v. Jackson", "decision_date": "2009-03-30", "docket_number": "No. 1-07-2244", "first_page": "283", "last_page": "292", "citations": [ { "type": "official", "cite": "389 Ill. App. 3d 283" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "780 N.E.2d 707", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "331 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209129 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "1053" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/1049-01" ] }, { "cite": "784 N.E.2d 799", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "203 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799408 ], "year": 2003, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0165-01" ] }, { "cite": "879 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "377 Ill. App. 3d 150", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273638 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "159" }, { "page": "160-61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/377/0150-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 12, "year": 1980, "pin_cites": [ { "page": "553" }, { "page": "509" }, { "page": "1877" }, { "page": "554" }, { "page": "509" }, { "page": "1877" }, { "page": "553" }, { "page": "509" }, { "page": "1877" }, { "page": "554" }, { "page": "509" }, { "page": "1877" } ], "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "759 N.E.2d 899", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "198 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29936 ], "year": 2001, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0103-01" ] }, { "cite": "388 Ill. App. 3d 532", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283156 ], "year": 2009, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/388/0532-01" ] }, { "cite": "857 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "222 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602037 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "542" }, { "page": "544" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0530-01" ] }, { "cite": "898 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "231 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3617207 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "271" }, { "page": "271" }, { "page": "273" }, { "page": "274" }, { "page": "281-82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0262-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 6, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "857 N.E.2d 816", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "property dropped to ground and left is considered abandoned, which is not subject to fourth amendment protection against unreasonable search and seizure" } ], "opinion_index": 1 }, { "cite": "368 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267220 ], "year": 2006, "pin_cites": [ { "page": "641", "parenthetical": "property dropped to ground and left is considered abandoned, which is not subject to fourth amendment protection against unreasonable search and seizure" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/368/0637-01" ] }, { "cite": "686 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 1 }, { "cite": "292 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725085 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "1030-31", "parenthetical": "officer's recovery of tossed gun provided probable cause for arrest that began as a Terry stop" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/292/1026-01" ] }, { "cite": "734 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "315 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980730 ], "year": 2000, "pin_cites": [ { "page": "857" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/315/0849-01" ] }, { "cite": "499 U.S. 621", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11320254 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "626" }, { "page": "697" }, { "page": "1550" }, { "page": "629" }, { "page": "699" }, { "page": "1552" } ], "opinion_index": 1, "case_paths": [ "/us/499/0621-01" ] }, { "cite": "893 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 1 }, { "cite": "229 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3614825 ], "year": 2008, "opinion_index": 1, "case_paths": [ "/ill-2d/229/0545-01" ] }, { "cite": "867 N.E.2d 1027", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "parenthetical": "where the defendant \"merely argued that the court erred in its application of existing law,\" \"we will not presume that the court had an unsolicited change of mind about the facts\"" } ], "opinion_index": 1 }, { "cite": "371 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267679 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "531", "parenthetical": "where the defendant \"merely argued that the court erred in its application of existing law,\" \"we will not presume that the court had an unsolicited change of mind about the facts\"" }, { "page": "531" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/371/0517-01" ] }, { "cite": "331 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209129 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "1053" }, { "page": "1053" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/331/1049-01" ] }, { "cite": "198 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29936 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "111" }, { "page": "112" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/198/0103-01" ] } ], "analysis": { "cardinality": 916, "char_count": 22846, "ocr_confidence": 0.771, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32301323359006645 }, "sha256": "e44c8eb19534611d80f2983aca3637e7a1b6054a442d5300ec76e51fdda79e05", "simhash": "1:893bf624734a86e5", "word_count": 3810 }, "last_updated": "2023-07-14T20:37:38.013620+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. MARCO JACKSON, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThe only question before us is whether the handgun recovered by a police officer was lawfully seized. The trial court, after reconsideration, granted the defendant\u2019s motion to suppress the evidence. This is an appeal of that ruling by the State, as authorized by Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)). We affirm the trial court.\nFACTS\nOn November 25, 2006, the defendant was arrested by Chicago police officers and was charged with felony unlawful possession of a handgun.\nThe defendant filed a motion to quash his arrest and suppress the handgun (motion to suppress). The motion alleged the weapon had been seized in violation of the fourth amendment of the federal constitution and its state counterpart. A hearing on the motion was held on May 14, 2007. Chicago police officer Connor was the only witness to testify.\nCalled as a witness by the defense, Officer Connor testified that on November 25, 2006, he was patrolling the vicinity of 7114 South Ash-land Avenue in Chicago. Officer Connor spotted the defendant, whom he had never seen before. The defendant was not committing a crime and Officer Connor did not have a warrant for his arrest. However, Officer Connor \u201c[wound] up\u201d recovering a loaded .32-caliber Smith & Wesson handgun \u201cwhich [the defendant] dropped.\u201d\nOn cross-examination by the State, Officer Connor explained he was patrolling the vicinity of 7114 South Ashland because it was his \u201cbeat\u201d and because there had been \u201cnumerous robberies in the area in the past.\u201d Officer Connor observed the defendant walking up and down the 7100 block of South Ashland for 40 minutes. Officer Connor, who was dressed in uniform, approached in his squad car, exited, and walked toward the defendant because of \u201cthe incidences of robberies in the area and [the defendant\u2019s] suspicious behavior.\u201d Officer Con-nor\u2019s testimony:\n\u201cQ. As you approached the defendant on foot, did you tell the defendant to do anything?\nA. Yes, I did.\nQ. What did you tell defendant to do?\nA. I told him to remove his hands from his jacket pockets.\nQ. Why did you tell the defendant to do that?\nA. For my safety.\nQ. How many times did you tell the defendant to remove his hands from his jacket pocket?\nA. At least three to four times.\nQ. What did the defendant do after the first time you told the defendant to remove his hands from his pockets?\nA. He did not remove his hands.\nQ. Did the defendant eventually remove his hands from his pocketfs]?\nA. Yes, he did.\nQ. What happened as the defendant removed his hands from his pockets?\nA. He dropped one 32 caliber Smith and Wesson loaded five-shot revolver from his right hand to the ground.\nQ. After the defendant dropped the handgun to the ground, what did the defendant do?\nA. He turned away and fled on foot southbound.\u201d\nOfficer Connor recovered the handgun and radioed other officers to be on the lookout for the defendant. Soon thereafter, the defendant was apprehended a short distance away.\nThe defendant did not reexamine Officer Connor. The trial judge asked Officer Connor about his knowledge of the prior robberies. Officer Connor only recalled there had been \u201cincidents of robberies in the area\u201d and could not recall the robbers\u2019 descriptions. Officer Con-nor suspected the defendant may have been involved in the robberies because of his \u201csuspicious behavior\u201d in the way he walked up and down the block, looked in store windows, and \u201ccheck[ed] out people.\u201d No further testimony was presented.\nDefense counsel contended the motion should be granted because Officer Connor \u201chad absolutely no reason to approach\u201d the defendant and order him to remove his hands from his pockets. Counsel pointed to Officer Connor\u2019s lack of knowledge regarding the prior robberies. The State made no argument; it simply asked that the motion be denied: \u201cYour Honor, we are asking that you deny the defendant\u2019s motion to quash arrest and suppress evidence.\u201d\nIn the course of denying the defendant\u2019s motion, the trial court found Officer Connor credible and that the case was \u201calmost on all fours\u201d with the United States Supreme Court\u2019s decision in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The trial court concluded that because Officer Connor had information about robberies in the area and because the defendant\u2019s actions could be interpreted as \u201ccasing\u201d potential robbery targets, Officer Connor approached the defendant to make an inquiry. Upon encountering the defendant, Officer Connor directed the defendant to remove his hands from his pockets for the officer\u2019s safety. During the encounter, the defendant dropped the gun. \u201cAt that point when he did make a drop while he wasn\u2019t complying with the officer\u2019s command, under the color of law[,] that\u2019s when the gun was found.\u201d\nThe defendant filed a motion to reconsider, claiming that no facts were articulated by Officer Connor to justify his encounter with the defendant. The trial judge agreed. In reconsidering and granting the defendant\u2019s motion to suppress, the trial judge explained that it \u201cperhaps overapplied these facts to Terry.\u201d The judge concluded the defendant\u2019s actions could just as easily be construed as window shopping as casing potential targets, and because Officer Connor did not provide any specific information concerning the prior robberies, such as a description of the suspect\u2019s gender, race, age, height, or weight, it was apparent Officer Connor \u201cQ]ust wanted to check out Mr. Jackson for basically looking inside of windows.\u201d\nThe State filed a certificate of substantial impairment and this appeal followed.\nDECISION\nThe State contends no fourth amendment seizure occurred at the time the defendant dropped the handgun and thus his fourth amendment rights were not violated when he was subsequently arrested. The State makes no contention that when he approached the defendant, the officer had a reasonable and articulable suspicion of criminal activity to support an investigative detention pursuant to Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The trial court\u2019s ultimate decision that this was not a valid Terry stop goes unchallenged.\nStandard of Review\nOur supreme court recently reiterated the two-part standard that applies to our review of a circuit court\u2019s ruling on a motion to suppress. As to the circuit court\u2019s findings of historical fact, \u201c \u2018we will reverse those findings only if they are against the manifest weight of the evidence.\u2019 \u201d People v. Cosby, 231 Ill. 2d 262, 271, 898 N.E.2d 603 (2008), quoting People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d 187 (2006). We review de novo the circuit court\u2019s ultimate legal ruling granting or denying the motion. Cosby, 231 Ill. 2d at 271.\nI. Defendant\u2019s Claim of Forfeiture\nInitially, the defendant claims the State\u2019s challenge to the grant of his motion to suppress has been forfeited.\nThe defendant\u2019s claim of forfeiture is based on the State\u2019s failure to make any trial court argument concerning the legality of the seizure. The State simply asked that the defendant\u2019s motion to suppress be denied. The record reveals the State did not offer any specific reasons why the trial court should deny the defense motion. The State\u2019s failure to take a position is troubling; see People v. Vasquez, 388 Ill. App. 3d 532, 543 (2009), where, referring to the State\u2019s appeal of a suppression ruling, we said: \u201cA party cannot make an argument for the first time on appeal.\u201d\nWe believe, however, the record is sufficient for us to consider the issues now raised by the State in this appeal.\nII. Seizure of the Defendant\nThe constitutional precepts are well known: the fourth amendment of the federal constitution and its state counterpart protect people from unreasonable searches and seizures, including seizures of their persons. People v. Thomas, 198 Ill. 2d 103, 108, 759 N.E.2d 899 (2001). However, \u201cnot every encounter between the police and a private citizen results in a seizure.\u201d Luedemann, 222 Ill. 2d at 544. There are at least three tiers of police-citizen encounters: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions, which must be supported by \u201ca reasonable, articulable suspicion of criminal activity\u201d; and (3) consensual encounters, which \u201cinvolve no coercion or detention and thus do not implicate fourth amendment interests.\u201d Luedemann, 222 Ill. 2d at 544.\nThe defendant contends Officer Connor engaged in an unlawful investigative detention from the moment he approached the defendant and directed him to remove his hands from his pockets. The State, on the other hand, now contends the encounter between the defendant and Officer Connor was consensual. What separates these two opposing views is whether Officer Connor\u2019s conduct conveyed a \u201cmeans of physical force or a show of authority, [such that the defendant\u2019s] freedom of movement [was] restrained.\u201d Cosby, 231 Ill. 2d at 273, citing United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980).\nFour factors listed in Mendenhall tend to support a finding of non-consensual seizure: (1) the threatening presence of several officers; (2) an officer\u2019s display of a weapon; (3) the physical touching of the individual\u2019s person; or (4) \u201c \u2018the use of language or tone of voice indicating that compliance with the officer\u2019s request might be compelled.\u2019 \u201d Cosby, 231 Ill. 2d at 274, quoting Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. While the totality of the circumstances must be examined to determine whether a seizure has occurred, the complete absence of the four Mendenhall factors negates a finding of a seizure. Cosby, 231 Ill. 2d at 281-82.\nOn the record before us, the first three Mendenhall factors are not present: (1) there was no threatening presence of several officers; Officer Connor was alone; (2) while Officer Connor was armed and in uniform, there is no testimony he displayed his weapon; and (3) there is no testimony that there was any physical contact between Officer Connor and the defendant. It is the fourth factor that supports the defendant\u2019s contention that a seizure occurred, although we have said \u201can officer wearing a police uniform may create an air of formality or may project greater authority than would an officer in plain clothes.\u201d People v. Ocampo, 377 Ill. App. 3d 150, 159, 879 N.E.2d 353 (2007). Officer Connor was in uniform when he approached the defendant; we presume he was carrying a visible bolstered gun.\nWhen Officer Connor approached the defendant the first thing he did was to tell the defendant to remove his hands from his pockets. It was not a question or a request. It was an order, and he repeated it three or four times. When the defendant finally obeyed the order, removing his hands from his pockets, the gun dropped to the ground. The remaining question in this case is whether defendant\u2019s removal of the gun from his coat pocket was the result of an unlawful seizure. If it was, we do not see how the fact that the defendant then \u201cturned away and fled on foot\u201d makes any difference. The seizure was complete at the moment Officer Connor first saw the gun.\nWe recognize that at the first hearing on defendant\u2019s motion the trial court said the defendant \u201cwasn\u2019t complying with the officer\u2019s command, under the color of law,\u201d when the gun was found. That conclusion was not referred to by anyone when the trial court reconsidered the defendant\u2019s motion to suppress. By granting the motion, the trial court necessarily changed its view on whether the defendant was submitting to lawful authority when the gun dropped to the ground. At any rate, whether the defendant was submitting to authority at the critical moment in these undisputed events is a question of law, which we review de novo.\nWe find, in accord with the fourth Mendenhall factor, Officer Con-nor\u2019s use of language indicated \u201cthat compliance with the officer\u2019s request might be compelled.\u201d Mendenhall, 446 U.S. at 553, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. When the defendant complied, a seizure took place. There was no legal basis for it.\nWe have held that when a police officer approached an individual and told him he \u201c \u2018needed to talk\u2019 \u201d with him, a reasonable person would interpret the statement as a command, not a request. Ocampo, 377 Ill. App. 3d at 160-61. That is, \u201c[A] consensual encounter will lose its consensual nature if law enforcement officers convey a message, by means of physical force or show of authority, that induces the individual to cooperate.\u201d People v. Gherna, 203 Ill. 2d 165, 179, 784 N.E.2d 799 (2003).\nIn People v. Smith, 331 Ill. App. 3d 1049, 780 N.E.2d 707 (2002), we discussed the point at which a consensual encounter turns into an unlawful seizure. Although the defendant in Smith began to back away from the officers before he was told to stop and take his hands out of his pockets, we said that in other circumstances \u201cwe would find that a seizure occurred no later than when the defendant was told to stop and to remove his hands from his pockets.\u201d Smith, 331 Ill. App. 3d at 1053.\nWe believe that after the third or fourth command by Officer Con-nor, a \u201creasonable person would have believed that he was not free to leave.\u201d Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.\nCONCLUSION\nWe conclude the handgun possessed by the defendant was seized as a result of the defendant\u2019s submission to authority. Because we believe the seizure of the handgun violated the fourth amendment, we affirm the decision of the trial court to sustain the defendant\u2019s motion to suppress.\nAffirmed.\nR. GORDON, EJ., concurs.", "type": "majority", "author": "JUSTICE WOLFSON" }, { "text": "JUSTICE GARCIA,\ndissenting:\nI dissent for two reasons.\nFirst, the defendant in his motion to reconsider presented a purely legal argument. Judge Linn in his initial decision ruled that the defendant\u2019s case was nearly \u201con all fours\u201d with the Terry decision. In reconsidering and granting the defendant\u2019s motion to suppress, Judge Linn explained that he \u201cperhaps overapplied these facts to Terry.\u201d Judge Linn concluded the defendant\u2019s actions could just as easily be construed as window shopping as casing potential targets, and because Officer Connor did not provide any specific information concerning the prior robberies, such as a description of the gender of the suspects, their race, age, height or weight, it was apparent that Officer Connor \u201ctjjust wanted to check out Mr. Jackson for basically looking inside of windows.\u201d In other words, based on the testimony, Officer Connor did not have reasonable suspicion to justify a Terry stop of the defendant.\nIn reconsidering his initial decision, Judge Linn did not reconsider the findings of fact he stated on the record pursuant to section 114\u2014 12(e) of the Code of Criminal Frocedure of 1963 (725 ILCS 5/114\u2014 12(e) (West 2006) (order granting or denying a motion to suppress \u201cshall state the findings of facts and conclusions of law upon which the order *** is based\u201d)); nor did the defendant seek to reopen the hearing to introduce additional evidence. The facts did not change, only the legal ruling changed. See People v. Wear, 371 Ill. App. 3d 517, 531, 867 N.E.2d 1027 (2007) (where the defendant \u201cmerely argued that the court erred in its application of existing law,\u201d \u201cwe will not presume that the court had an unsolicited change of mind about the facts\u201d), aff\u2019d, 229 Ill. 2d 545, 893 N.E.2d 631 (2008). Because Judge Linn made no factual findings upon reconsideration, it is clear that Judge Linn granted the motion to reconsider on the erroneous legal conclusion that the encounter between the defendant and Officer Con-nor was an investigative detention, without reasonable suspicion, a position even the majority does not adopt.\nBecause a reasonable suspicion analysis does not apply to the encounter between the defendant and Officer Connor, the majority is compelled to modify the judge\u2019s ruling: \u201cBy granting the motion, the trial court necessarily changed its view on whether the defendant was submitting to lawful authority when the gun dropped to the ground.\u201d 389 Ill. App. 3d at 288. I find no basis for this determination for it pretends to read the mind of the trial judge. Logic does not favor this outcome and we have previously taken the opposite view: \u201c[W]e infer that while adhering to its previous factual findings, the court agreed with the legal argument that defendant made in his motion for reconsideration, and granted the motion on that basis.\u201d Wear, 371 Ill. App. 3d at 531.\nJudge Linn was clear on his findings of fact: Officer Connor was credible and, at the time the gun was dropped, the defendant \u201cwasn\u2019t complying with the officer\u2019s command, under the color of law.\u201d His findings lead to but one conclusion: the defendant\u2019s fourth amendment rights were not implicated at the time of his encounter with Officer Connor because no seizure occurred. This was the precise holding in Thomas-, no seizure occurs based on a verbal show of authority where \u201c \u2018the subject does not yield.\u2019 \u201d Thomas, 198 Ill. 2d at 111, quoting California v. Hodari D., 499 U.S. 621, 626, 113 L. Ed. 2d 690, 697, 111 S. Ct. 1547, 1550 (1991).\nSecond, even accepting the majority\u2019s position that we may disregard Judge Linn\u2019s initial findings of fact and force our own interpretation upon the defendant\u2019s actions at the time he dropped the handgun, I cannot agree that an unlawful seizure of the handgun occurred when Officer Connor recovered the handgun from the ground. I submit that it makes all the difference in a fourth amendment analysis that at the time the handgun was recovered by Officer Connor, the defendant had already \u201cturned away and fled on foot.\u201d\nThe majority\u2019s reliance on a sentence fragment from Smith as authority for the conclusion reached here is faulty. More completely, we held:\n\u201cUnder other circumstances we would find that a seizure occurred no later than when the defendant was told to stop and to remove his hands from his pockets. At that point the defendant had begun to back away from the officers, indicating his intent to leave. The officers just as clearly indicated their intent that he remain. However, because the defendant did not submit to the officers\u2019 commands, but continued to back away, no seizure occurred at that point.\u201d (Emphasis added.) Smith, 331 Ill. App. 3d at 1053.\nIt is precisely that necessary element of compliance before a seizure can be found that is absent in this case. \u201c \u2018The police may well convey a reasonable feeling of restraint, but that message does not amount to a seizure within the meaning of the fourth amendment until there is submission to it. A person must submit to a show of authority before that show of authority can constitute a seizure.\u2019 \u201d (Emphasis omitted.) Thomas, 198 Ill. 2d at 112, quoting appellate court decision, People v. Thomas, 315 Ill. App. 3d 849, 857, 734 N.E.2d 1015 (2000), citing Hodari D., 499 U.S. at 629, 113 L. Ed. 2d at 699, 111 S. Ct. at 1552. As in Smith, but far more emphatically here, the defendant made clear \u201chis intent to leave.\u201d Smith, 331 Ill. App. 3d at 1053. Whatever notion of compliance may have been present triggered by Officer Connor\u2019s commands that the defendant remove his hands from his pockets dissipated with the defendant\u2019s flight.\nThe majority\u2019s holding that \u201c[t]he seizure was complete at the moment Officer Connor first saw the gun\u201d (389 Ill. App. 3d at 288) is unpersuasive. More than fleeting compliance is required. Smith and People v. Billingslea, 292 Ill. App. 3d 1026, 686 N.E.2d 603 (1997), instruct that an intent to comply must be present in the acts of the defendant. Any suggestion that there was such an intent present here is completely undermined by the defendant\u2019s flight. Compliance cannot be so momentary that the \u201cseizing\u201d officer has no time to react. Even if a scintilla of intent to comply may be discovered in the defendant\u2019s act of removing the handgun from his pocket, the overriding intent of the defendant made clear by his flight was to avoid arrest. Consistent with his aim to avoid arrest, the defendant dropped the handgun to distract the officer or at least delay his pursuit.\nThe majority\u2019s holding renders meaningless the submission requirement. Submission to authority is not subject to a microscopic view of an encounter to find compliance, precisely because any perceived compliance may dissipate just as quickly with the defendant\u2019s flight. That this is true is most persuasively illustrated by answering the majority\u2019s challenge that the defendant\u2019s flight makes no difference.\nHad the defendant made good on his flight and not been arrested until hours later, his motion to quash arrest and suppress evidence would not lie. His arrest hours later would be supported by the probable cause established by the recovered handgun (Billingslea, 292 Ill. App. 3d at 1030-31 (officer\u2019s recovery of tossed gun provided probable cause for arrest that began as a Terry stop)); the recovered handgun would not be subject to a motion to suppress because the defendant abandoned all interest in the handgun when he dropped it (People v. Novakowski, 368 Ill. App. 3d 637, 641, 857 N.E.2d 816 (2006) (property dropped to ground and left is considered abandoned, which is not subject to fourth amendment protection against unreasonable search and seizure)). That the defendant did not make good on his attempt to flee should not, in fact cannot, put him in a better position. His flight makes clear his intention not to submit to Officer Connor; absent submission there can be no seizure based solely on a verbal show of authority. 550 (\u201cThe Court concluded that the fleeing Hodari was not seized until a police officer tackled him\u201d).\nAs in Smith and Billingslea, the defendant in this case was not seized for fourth amendment purposes at the time Officer Connor repeatedly directed the defendant to remove his hands from his pockets because the defendant, in dropping the handgun and fleeing, did not submit to the officer\u2019s verbal show of authority. The defendant was not seized until he was actually arrested by nearby assisting officers, by which time the handgun had been recovered. Because Officer Connor\u2019s recovery of the handgun did not result from a seizure of the defendant, Judge Linn\u2019s legal ruling granting the motion to suppress should be reversed.\nI dissent.", "type": "dissent", "author": "JUSTICE GARCIA," } ], "attorneys": [ "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Eve Reilly, and Greg Funfsinn, Assistant State\u2019s Attorneys, of counsel), for the People.", "Edwin A. Burnette, Public Defender, of Chicago (Ronald D. Haze, Assistant Public Defender, of counsel), for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARCO JACKSON, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201407\u20142244\nOpinion filed March 30, 2009.\nRehearing denied April 27, 2009.\nGARCIA, J., dissenting.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Eve Reilly, and Greg Funfsinn, Assistant State\u2019s Attorneys, of counsel), for the People.\nEdwin A. Burnette, Public Defender, of Chicago (Ronald D. Haze, Assistant Public Defender, of counsel), for appellee." }, "file_name": "0283-01", "first_page_order": 299, "last_page_order": 308 }