{ "id": 4306458, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL COLYAR, Defendant-Appellee", "name_abbreviation": "People v. Colyar", "decision_date": "2010-12-30", "docket_number": "No. 1\u201409\u20140323", "first_page": "294", "last_page": "315", "citations": [ { "type": "official", "cite": "407 Ill. App. 3d 294" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "131 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "7 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2712292 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-2d/7/0545-01" ] }, { "cite": "365 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3369667 ], "year": 1977, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0699-01" ] }, { "cite": "460 U.S. 491", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195479 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "500", "parenthetical": "\"investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicions in a short period of time\"" }, { "page": "238", "parenthetical": "\"investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicions in a short period of time\"" }, { "page": "1325-26", "parenthetical": "\"investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicions in a short period of time\"" } ], "opinion_index": 0, "case_paths": [ "/us/460/0491-01" ] }, { "cite": "608 N.E.2d 943", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "241 Ill. 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App. 3d", "case_ids": [ 4291114 ], "year": 2009, "pin_cites": [ { "page": "626", "parenthetical": "arguments raised for the first time on appeal are forfeited" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/394/0611-01" ] }, { "cite": "401 N.W.2d 28", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1986, "pin_cites": [ { "parenthetical": "unpublished disposition" } ], "opinion_index": 0 }, { "cite": "135 Wis. 2d 544", "category": "reporters:state", "reporter": "Wis. 2d", "year": 1986, "pin_cites": [ { "parenthetical": "unpublished disposition" } ], "opinion_index": 0 }, { "cite": "512 N.Y.S.2d 626", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1987, "opinion_index": 0 }, { "cite": "134 Misc. 2d 621", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 857048 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/misc2d/134/0621-01" ] }, { "cite": "169 Ariz. 530", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1548069 ], "weight": 12, "year": 1991, "pin_cites": [ { "page": "531" }, { "page": "192" }, { "page": "531" }, { "page": "192" }, { "page": "532" }, { "page": "193" }, { "page": "532" }, { "page": "193" }, { "page": "532" }, { "page": "193" }, { "page": "532" }, { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ariz/169/0530-01" ] }, { "cite": "768 N.E.2d 384", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "328 Ill. App. 3d 1047", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183322 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "1049" }, { "page": "1049" }, { "page": "1050" }, { "page": "1052" }, { "page": "1054" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/1047-01" ] }, { "cite": "967 F.2d 1189", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10519785 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "1193" }, { "page": "1193" }, { "page": "1193" }, { "page": "1193" } ], "opinion_index": 0, "case_paths": [ "/f2d/967/1189-01" ] }, { "cite": "525 A.2d 971", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 6, "year": 1987, "pin_cites": [ { "page": "973" }, { "page": "972" }, { "page": "975", "parenthetical": "\"The court deemed as 'common knowledge that pistols are carried in holsters attached to belts such as the one observed' \"" }, { "page": "974" }, { "page": "975" }, { "page": "976" } ], "opinion_index": 0 }, { "cite": "11 Conn. App. 11", "category": "reporters:state", "reporter": "Conn. App.", "case_ids": [ 1971968 ], "weight": 6, "year": 1987, "pin_cites": [ { "page": "15" }, { "page": "14" }, { "page": "18" }, { "page": "18" }, { "page": "18" }, { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/conn-app/11/0011-01" ] }, { "cite": "58 Wis. 2d 514", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8669599 ], "weight": 8, "year": 1973, "pin_cites": [ { "page": "519" }, { "page": "616" }, { "page": "520" }, { "page": "616" }, { "page": "520" }, { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/58/0514-01" ] }, { "cite": "480 U.S. 321", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131527 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "329", "parenthetical": "officer's movement of stereo equipment, not subject to plain-view doctrine, constituted a search, which must be supported by probable cause" }, { "page": "357", "parenthetical": "officer's movement of stereo equipment, not subject to plain-view doctrine, constituted a search, which must be supported by probable cause" }, { "page": "1155", "parenthetical": "officer's movement of stereo equipment, not subject to plain-view doctrine, constituted a search, which must be supported by probable cause" } ], "opinion_index": 0, "case_paths": [ "/us/480/0321-01" ] }, { "cite": "713 N.E.2d 1275", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "\"conservation officer may request the production of a valid FOID card after he discovers a firearm during his investigation of possible [Wildlife Code (520 ILCS 5/1.19 (West 1996))] violations\"" } ], "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336108 ], "year": 1999, "pin_cites": [ { "page": "233", "parenthetical": "\"conservation officer may request the production of a valid FOID card after he discovers a firearm during his investigation of possible [Wildlife Code (520 ILCS 5/1.19 (West 1996))] violations\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0230-01" ] }, { "cite": "566 N.E.2d 841", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "independent basis for the defendant's arrest existed based on the plain-view recovery of live ammunition clips when the defendant had earlier stated to the arresting officer that he had no identification, from which \"it was reasonable to infer that defendant did not possess a FOID card\"" } ], "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2547624 ], "year": 1991, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0087-01" ] }, { "cite": "777 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521926 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "13" }, { "page": "13", "parenthetical": "an officer may seize an object discovered during a Terry stop if the \"officer has probable cause to believe that the object is contraband\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0001-01" ] }, { "cite": "739 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 26", "category": "reporters:state", "reporter": "Ill. 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App. 3d 393", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5100795 ], "weight": 12, "year": 1993, "pin_cites": [ { "page": "394" }, { "page": "395-96" }, { "page": "395" }, { "page": "395" }, { "page": "396" }, { "page": "396" }, { "page": "396" }, { "page": "397" }, { "page": "397" }, { "page": "398" }, { "page": "397", "parenthetical": "written procedures for impounding vehicles must be introduced into evidence \"to uphold an inventory search of those vehicles\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0393-01" ] }, { "cite": "676 N.E.2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "286 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544524 ], "year": 1997, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0649-01" ] }, { "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 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "175" }, { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0165-01" ] }, { "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 ], "year": 2008, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/231/0262-01" ] }, { "cite": "463 U.S. 1032", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203160 ], "weight": 24, "year": 1983, "pin_cites": [ { "page": "1049" }, { "page": "1220" }, { "page": "3481" }, { "page": "1049" }, { "page": "1220" }, { "page": "3481" }, { "page": "1051" }, { "page": "1221" }, { "page": "3481" }, { "page": "1049" }, { "page": "1220" }, { "page": "3481" } ], "opinion_index": 0, "case_paths": [ "/us/463/1032-01" ] }, { "cite": "857 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "\"the law *** provides that a police officer does not violate the fourth amendment merely by approaching a person in public to ask questions if the person is willing to listen\"" } ], "opinion_index": 0 }, { "cite": "222 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602037 ], "year": 2006, "pin_cites": [ { "page": "549", "parenthetical": "\"the law *** provides that a police officer does not violate the fourth amendment merely by approaching a person in public to ask questions if the person is willing to listen\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0530-01" ] }, { "cite": "589 F.3d 148", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3500060 ], "year": 2009, "pin_cites": [ { "parenthetical": "accord" } ], "opinion_index": 1, "case_paths": [ "/f3d/589/0148-01" ] }, { "cite": "594 F.3d 14", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3547940, 3521639 ], "year": 2010, "pin_cites": [ { "parenthetical": "distinguishing Gant in the case of a protective sweep search" } ], "opinion_index": 1, "case_paths": [ "/us-app-dc/389/0199-01", "/f3d/594/0014-01" ] }, { "cite": "190 Ill. App. 3d 503", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2518847 ], "year": 1989, "pin_cites": [ { "page": "509" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/190/0503-01" ] }, { "cite": "184 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926980 ], "year": 1998, "pin_cites": [ { "page": "413-14" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/184/0402-01" ] }, { "cite": "98 Ill. 2d 75", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3122359 ], "year": 1983, "pin_cites": [ { "page": "83", "parenthetical": "\"it would have been profoundly foolish for the officer not to be concerned that a man carrying a 10-inch knife on a city street may have other weapons\"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/98/0075-01" ] }, { "cite": "217 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875707 ], "year": 2005, "pin_cites": [ { "page": "518" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/217/0511-01" ] }, { "cite": "106 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139058 ], "year": 1985, "pin_cites": [ { "page": "86-87" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/106/0077-01" ] }, { "cite": "127 Ill. 2d 153", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564623 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "174" }, { "page": "172" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/127/0153-01" ] }, { "cite": "196 Ill. 2d 425", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351271 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "431" }, { "page": "433" }, { "page": "431" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/196/0425-01" ] }, { "cite": "169 Ariz. 530", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1548069 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "531-32" }, { "page": "193", "parenthetical": "because bullets strongly imply that guns are nearby, the bullets on the front seat of the car and the defendants' conduct justified a protective search of the passenger compartment of the car" } ], "opinion_index": 1, "case_paths": [ "/ariz/169/0530-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "22, 30" }, { "page": "907, 911" }, { "page": "27" }, { "page": "909" } ], "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "556 U.S. 332", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3653882 ], "weight": 9, "year": 2009, "pin_cites": [ { "page": "335" }, { "page": "491" }, { "page": "1714" }, { "page": "346-47" }, { "page": "498" }, { "page": "1721", "parenthetical": "distinguishing Long" }, { "page": "352" }, { "page": "502" }, { "page": "1724", "parenthetical": "Scalia, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/us/556/0332-01" ] }, { "cite": "104 Nev. 521", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 8557686 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "523" }, { "page": "50" } ], "opinion_index": 1, "case_paths": [ "/nev/104/0521-01" ] }, { "cite": "244 Ill. 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MICHAEL COLYAR, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE GARCIA\ndelivered the opinion of the court:\nThe State appeals the circuit court\u2019s order granting defendant Michael Colyar\u2019s motion to suppress bullets and a gun seized from the defendant\u2019s car. The State argues that after the officers saw a bullet in plain view inside the defendant\u2019s car, they reasonably believed the bullet indicated the presence of a gun; thus, the officers acted lawfully in ordering the defendant and his passengers out of the car, securing them in front of the car by handcuffing them, seizing the bullet in plain view in a plastic bag, which contained other bullets, and searching the interior of the car, which resulted in the seizure of a handgun hidden from view.\nWe affirm the circuit court\u2019s ruling because the precipitate police action is not supported by probable cause that a crime had occurred based on a plain-view sighting of a bullet because a bullet is not contraband per se; nor did the Terry investigative stop based on the plain-view sighting of the bullet, leading to the recovery of more bullets, escalate into probable cause that the defendant\u2019s vehicle contained evidence of criminal activity when the police officers failed to confirm their suspicions that possession of the bullets was a crime.\nBACKGROUND\nOn October 28, 2008, testimony from a single witness was presented on the defendant\u2019s pretrial motion to quash arrest and suppress evidence. William Alcott testified that on June 29, 2006, he was a Homewood police officer partnered with Detective Johnson of the Glenwood police department as part of a suburban task force. At about 8:45 p.m., they drove to the Super 8 Motel on a frontage road in East Hazel Crest where they would routinely patrol the motel parking lots \u201cfor parties and stuff of that nature.\u201d The officers observed a green Honda parked on motel property, not on the public way.\nUsing photographic exhibits depicting the parking lot, Officer Alcott demonstrated how he drove his unmarked Crown Victoria police car onto the motel property, but the Honda blocked him from turning into the south parking lot where the motel entrance is located. After driving around the motel building, Officer Alcott parked the police car and observed the Honda for another \u201c[t]wo to three minutes, tops.\u201d The Honda\u2019s engine was running, the defendant was in the driver\u2019s seat, and there was a second individual in the car. There were no other vehicles nearby and \u201cnot a lot of traffic\u201d at the motel\u2019s front doors. The officers had not received a call of suspicious or criminal activity from the motel.\nAfter two to three minutes of observing the Honda, Officer Alcott moved the police car closer to the Honda, but kept to the right of the Honda so as not to block it. Both officers exited their car to determine why the Honda was parked there. The officers were dressed in plain clothes, each wearing a vest with a badge, a name tag, and \u201cPOLICE\u201d printed across the back. To the casual observer, they were police officers. In addition to their police vests, the officers carried handcuffs and flashlights. The officers were armed, but their guns were not drawn as they approached the Honda. As the officers approached on foot, a third individual came out of the motel and, walking at a normal rate, entered the Honda before the officers arrived.\nWhen Officer Alcott reached the driver\u2019s side of the Honda, with Detective Johnson at the passenger side, Officer Alcott told the defendant he was blocking the entrance. The defendant replied he had parked there to pick up someone. Detective Johnson advised Officer Alcott that there was a plastic bag in the center console of the Honda. Officer Alcott shined his flashlight into the car and could \u201csee a bullet sticking up\u201d in a plastic bag on the center console. The cartridge appeared to be a rifle round, about three inches in length. Officer Alcott ordered the three occupants out of the Honda and \u201c[b]rought the subjects to the front of the vehicle.\u201d \u201c[Tjhey were all placed in handcuffs immediately.\u201d Officer Alcott testified that at that moment the three men were in custody. After the three men were handcuffed and moved to the front of the Honda, Officer Alcott searched the defendant and recovered from his pants pocket one live round of what was later determined to be .454-caliber ammunition. The other two men were also searched. After the three individuals were placed \u201cin custody,\u201d Detective Johnson recovered the plastic bag from the console of the Honda and found it to contain five rounds of .454-caliber ammunition, including the round seen in plain view.\nOfficer Alcott testified that after he recovered the cartridge from the defendant\u2019s pocket and retrieved the other cartridges in the car, he believed there might be a gun in the Honda. Officer Alcott\u2019s partner, Detective Johnson, searched the Honda and recovered a .454 Redwing revolver from underneath the floor mat of the front passenger floorboard. The defendant and his two passengers were transported to the police station where subsequent investigation established the defendant was a registered owner of the Honda and had a valid driver\u2019s license.\nFollowing Officer Alcott\u2019s testimony, the defense rested, as did the State. On subsequent court dates, the circuit court heard argument and considered case law. On November 6, 2008, the court ruled that the officers\u2019 initial approach to the Honda did not constitute a seizure and that the seizure of the bullets in plain view in the car and from the defendant\u2019s pocket were lawful \u201cpursuant to Terry.\u201d However, the possession of the bullets was not illegal in itself. The court stated, \u201cPresumably the state\u2019s theory is search incident to that lawful arrest that allowed them to conduct that search.\u201d The court reasoned that without an inquiry by the officers to determine whether the defendant possessed a firearm owner\u2019s identification (FOID) card, the possession of bullets per se was not a crime. The court granted the motion to suppress as to the gun, but denied the motion as to the bullets. On December 4, 2008, the State filed a written motion to reconsider the suppression of the gun and the defendant orally moved to reconsider the denial of the suppression of the bullets.\nOn January 7, 2009, the court reversed its decision as to the bullets: \u201cI believe the officer *** in this case, should have inquired whether there was F.O.I.D. card regarding the seizure of the bullets. Without [an inquiry regarding] an F.O.I.D. card, the bullets are not illegal.\u201d As a consequence, the seizure of all the evidence flowed from \u201cthe illegal search and custodial search based upon unlawful arrest for possession of ammo without F.O.I.D. card.\u201d The State\u2019s motion to reconsider, contending that \u201cthe officers were justifiabl[y] concerned for their safety in that those bullets could reasonably indicate the presence of a gun,\u201d was entered and continued as agreed upon. The State, however, filed its certificate of impairment and notice of appeal on February 2, 2009, before its reconsideration motion could be ruled upon.\nANALYSIS\nThe State divides its single issue on appeal challenging the circuit court\u2019s suppression order into six subparts. The State first contends that the officers\u2019 approach to the Honda did not implicate the fourth amendment. See People v. Luedemann, 222 Ill. 2d 530, 549, 857 N.E.2d 187 (2006) (\u201cthe law *** provides that a police officer does not violate the fourth amendment merely by approaching a person in public to ask questions if the person is willing to listen\u201d). The circuit court so ruled; that ruling stands as it is not challenged on appeal.\nThe State next asserts that \u201cthe seizure of the bullet in plain view was constitutional where the police believed it constituted evidence of criminal activity, and its presence in the passenger compartment reasonably justified the search for a gun in the vehicle.\u201d This subpart presents the crux of the State\u2019s contention on appeal. We understand the State to argue that when the officers observed the bullet in plain view on the Honda\u2019s console, they had probable cause to believe a crime had been committed. Based on the existence of probable cause, the officers arrested the defendant and performed a custodial search, which led to the recovery of another bullet in the defendant\u2019s pants pocket. Based on the recovery of the bullets, as the State asserted in its motion to reconsider, \u201cthe officers were justified to search the passenger compartment to insure their own safety,\u201d citing Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983).\nShould we disagree with the State\u2019s view of the initial police action, in its last subpart, the State asserts that \u201cthe police officers would have inevitably discovered the gun as a search incident to defendant\u2019s arrest for possession of ammunition without a valid FOID card.\u201d As support, the State contends in its main brief that \u201cthe officers would have checked defendant\u2019s criminal background prior to releasing him and would have discovered that defendant was a convicted felon. As a convicted felon, defendant could not be in possession of a valid FOID card. See 430 ILCS 65/4(a)(2)(ii), 8(c) (West 2008). Possession of ammunition without possession of a valid FOID card is a Class A misdemeanor. 430 ILCS 65/2(a)(2), 14(e) (West 2008).\u201d\nStandard of Review\nReview of a circuit court\u2019s ruling on a motion to suppress evidence is subject to a two-part standard. We defer to the circuit court\u2019s factual findings unless they are against the manifest weight of the evidence. People v. Cosby, 231 Ill. 2d 262, 271, 898 N.E.2d 603 (2008). If the findings of fact are not contrary to the manifest weight of the evidence, we review de novo whether the suppression of the evidence is warranted given the facts as found by the circuit court. People v. Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799 (2003). We are free to assess the factual findings in relation to the issues presented to draw our own conclusion on whether relief is warranted. Gherna, 203 Ill. 2d at 175.\nSection 114\u201412(e) of the Code of Criminal Procedure of 1963 mandates that an order granting a motion to suppress \u201cstate the findings of fact *** upon which the order *** is based.\u201d 725 ILCS 5/114\u201412(e) (West 2008). The suppression order before us, however, does not contain express findings of fact. Nonetheless, the record makes clear the circuit court\u2019s legal ruling: the officers did not have probable cause to search the Honda based on their observation of a bullet in plain view on the console of the Honda and the recovery of additional bullets, without first inquiring whether the defendant possessed a FOID card, the absence of which would make possession of the bullets illegal; thus, it was not reasonable for the officers to conclude that their observation of the single bullet in the plastic bag on the console, which triggered their actions, was evidence of criminal activity because a bullet is not contraband per se.\nThis legal conclusion sufficiently informs us of the supporting inferences the circuit court may have drawn to reach its decision, albeit the observable facts, as the circuit court noted, \u201cseem to be not in dispute.\u201d \u201cWhere more than one inference may be drawn from the facts, even uncontested facts, the question remains one for the trier of fact. [Citation.] The trial court\u2019s determination concerning factual matters, including the reasonable inferences to be drawn from the testimony, is entitled to deference [citations], and this determination will not be disturbed on review unless manifestly erroneous.\u201d People v. Moore, 286 Ill. App. 3d 649, 652, 676 N.E.2d 700 (1997).\nWe follow the circuit court\u2019s ruling in addressing the State\u2019s appeal by considering first whether there was probable cause to search the vehicle resulting in the seizure of the handgun and then, whether the suppression order was properly extended to the bullets that were discovered pursuant to a lawful Terry stop.\nThe Handgun\nAs we set out, the circuit court initially granted the defendant\u2019s motion to suppress the handgun because probable cause did not exist to search the car. The circuit court reasoned that because the arresting officers did not inquire of the defendant whether he possessed a FOID card, the presence of the bullets alone could not give rise to probable cause of criminal activity because bullets are not contraband per se. Without probable cause, the search of the car was unlawful. Therefore, the officers acted precipitously when they removed the defendant (and the passengers) from the car, secured him at the front of the Honda by handcuffing him, and then searched the car, which ultimately resulted in the recovery of the handgun concealed under the front passenger seat floor mat.\nThe State contends that the officers\u2019 plain-view observation of the bullet in the plastic bag on the console of the car, the recovery of a second bullet in the defendant\u2019s pants pocket, and the seizure of the plastic bag from the car\u2019s console, which contained five bullets, provided probable cause to believe \u201cthat a gun might be present in defendant\u2019s vehicle.\u201d As authority for the proposition that \u201c[t]he presence of a bullet in a vehicle creates a reasonable indication of the presence of a gun in the vehicle,\u201d the State cites People v. Stack, 244 Ill. App. 3d 393, 613 N.E.2d 366 (1993).\nIn Stack, following a jury trial, the defendant was convicted \u201cof unlawful possession of weapons (ammunition) by a convicted felon.\u201d Stack, 244 Ill. App. 3d at 394. On appeal, he contended the circuit court erred in denying his motion to suppress two bullets seized from his car. The defendant \u201cwas initially arrested for disorderly conduct and driving with a suspended license\u201d as he exited his vehicle, leaving the driver\u2019s door open. Stack, 244 Ill. App. 3d at 395-96. The disorderly conduct charge stemmed from complaints by a female (D.S.) that the defendant \u201chad been following her car, harassing her, and he threatened to kill her.\u201d Stack, 244 Ill. App. 3d at 395. The search of the defendant\u2019s car was described by the testifying officer at the hearing as \u201c \u2018incident to the arrest.\u2019 \u201d Stack, 244 Ill. App. 3d at 395. At the police station, the defendant was discovered to have a felony conviction. In denying the defendant\u2019s motion to suppress, the circuit court reasoned that \u201cbecause there was no identification to show the vehicle belonged to defendant, and the officers did not know if defendant had rightful possession of the vehicle, it could not be left in a private parking lot.\u201d Stack, 244 Ill. App. 3d at 396. The vehicle was properly impounded and the ensuing inventory resulted in the seizure of the bullets in the interior of the vehicle, which the officer had observed in the car before the car was moved. Stack, 244 Ill. App. 3d at 396. On appeal, the defendant contended that absent any indication that the vehicle was stolen or that the private property owners requested the vehicle be removed, the search of the vehicle and the seizure of the bullets were unlawful. Stack, 244 Ill. App. 3d at 396.\nWhile the Stack court rejected the circuit court\u2019s rationale that the bullets were subject to seizure during the inventory process of the impounded vehicle, the court ruled that the officer\u2019s view of the bullets in \u201cplain view\u201d on the driver\u2019s seat justified the seizure of the bullets and the search of the vehicle for a gun. Stack, 244 Ill. App. 3d at 397. To support the search of the vehicle for a gun, the Stack court observed: \u201cThe presence of a bullet on the floorboard of an automobile has been held to create a reasonable indication of the presence of a gun in the vehicle.\u201d Stack, 244 Ill. App. 3d at 397, citing State v. Wright, 104 Nev. 521, 523, 763 R2d 49, 50 (1988). No gun, however, was ever recovered. The seizure of the bullets was justified because they \u201chad some evidentiary value in regard to proof of the seriousness of defendant\u2019s alleged threats to kill D.S.\u201d Stack, 244 Ill. App. 3d at 398. The Stack court did not hold that the \u201creasonable indication of the presence of a gun\u201d was the equivalent of probable cause. In any event, we agree with the circuit court\u2019s view of Stack: at best the observation connecting bullets to the presence of a gun is dicta, where no gun was recovered. We decline the State\u2019s invitation to expand the holding of Stack beyond its facts.\nThe State also relies heavily on State v. Wright, 104 Nev. 521, 763 P.2d 49 (1988), cited by the court in Stack. In Wright, after the police lawfully stopped a vehicle occupied by the defendants on a public highway because they had reasonable suspicion that it was involved in a robbery the previous night, one officer observed a bullet lying on the front floorboard of the vehicle. The Nevada Supreme Court noted the observation relied upon by the court in Stack: \u201cThe presence of the bullet could reasonably indicate the presence of a gun ***.\u201d Wright, 104 Nev. at 523, 763 P.2d at 50. However, before the bullet was observed and the defendants were searched, the police had already determined that the defendants were felons. Wright, 104 Nev. at 523, 763 P.2d at 50. Though it is unclear from the decision in Wright as to the law in Nevada, in Illinois, as the State asserts in its main brief, felons cannot lawfully possess a bullet. The Nevada Wright court ruled that the lawful stop of the defendants\u2019 vehicle to investigate a robbery that occurred that day justified the \u201csearch of the passenger compartment to insure the officers\u2019 safety.\u201d Wright, 104 Nev. at 523, 763 P.2d at 50, citing Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983). However, because the defendants in Wright were felons, Wright provides no guidance on the case before us, except to the extent the officers here had obtained information that the defendant was a felon, his possession of the single bullet would have provided probable cause of a crime. However, the officers never acquired such information before the search and seizure of the bullets and handgun. We write on a clean slate.\nAfter the State took its appeal in this case, the United States Supreme Court determined that a vehicle may be lawfully searched \u201cincident to a recent occupant\u2019s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.\u201d Arizona v. Gant, 556 U.S. 332, 351, 173 L. Ed. 2d 485, 501, 129 S. Ct. 1710, 1723 (2009). In Gant, the Supreme Court cited Long for the proposition that \u201c[ojther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.\u201d Gant, 556 U.S. at 346, 173 L. Ed. 2d at 498, 129 S. Ct. at 1721. Long \u201cpermits an officer to search a vehicle\u2019s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is \u2018dangerous\u2019 and might access the vehicle to \u2018gain immediate control of weapons.\u2019 \u201d Gant, 556 U.S. at 346-47, 173 L. Ed. 2d at 498, 129 S. Ct. at 1721, quoting Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481, citing Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880 (1986).\nIn Long, two deputies observed a car driving erratically and at excessive speed; the car eventually swerved into a shallow ditch. When the deputies stopped to investigate, Long met the deputies at the rear of the car. Long appeared to be under the influence of something; he twice did not respond to the initial requests of the deputies. When he was asked for the car\u2019s registration, Long turned and began walking toward the open door of the car. Through the open door, the officers observed a large hunting knife on the driver\u2019s seat floorboard. The officers immediately performed a Terry protective patdown, which revealed no other weapon. One deputy, without entering the car, observed something protruding from under the front seat armrest. The deputy recovered what turned out to be a pouch and inside the pouch discovered what appeared to be marijuana. In denying the defendant\u2019s motion to suppress, the trial court found the pouch was of a size that might conceal a gun. Under these facts, the Supreme Court ruled that the deputy\u2019s recovery of the pouch in the car was justified under the Terry principles because the deputies had a reasonable belief \u201cthat the suspect is dangerous and the suspect may gain immediate control of weapons.\u201d Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481. In a footnote, the Supreme Court cautioned: \u201cWe stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop ***.\u201d (Emphasis in original.) Long, 463 U.S. at 1049 n.14, 77 L. Ed. 2d at 1220 n.14, 103 S. Ct. at 3481 n.14.\nHere, the State does not contend that the officers\u2019 actions were prompted by their belief that the defendant was \u201cdangerous.\u201d Such a claim would be at odds with the circuit court\u2019s decision and the inferences it must have drawn. It is also clear that because the defendant was handcuffed (along with the other occupants) at the front of the Honda, he could not \u201cgain immediate control\u201d of the handgun concealed below the floor mat of the front passenger seat. The exception in Long does not apply here.\nIn Gant, the Supreme Court reiterated the analysis that should be undertaken when the reasonableness of a warrantless search is challenged. \u201cConsistent with our precedent, our analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that \u2018searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment \u2014 subject only to a few specifically established and well delineated exceptions.\u2019 \u201d Gant, 556 U.S. at 338, 173 L. Ed. 2d at 493, 129 S. Ct. at 1716, quoting Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514 (1967). \u201cAmong the exceptions to the warrant requirement is a search incident to a lawful arrest. [Citation.] The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.\u201d Gant, 556 U.S. at 338, 173 L. Ed. 2d at 493, 129 S. Ct. at 1716. In a footnote, the Supreme Court noted that justifying a search of a vehicle once the occupants have been secured should be an exception. \u201cBecause officers have many means of ensuring the safe arrest of vehicle occupants, it will be a rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee\u2019s vehicle remains.\u201d Gant, 556 U.S. at 343 n.4, 173 L. Ed. 2d at 496 n.4, 129 S. Ct. at 1719 n.4. Gant, however, did not change the law regarding searches of vehicles. \u201cIf there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798[, 820-21, 72 L. Ed. 2d 572, 590-91, 102 S. Ct. 2157, 2170-71] (1982), authorizes a search of any area of the vehicle in which the evidence might be found.\u201d Gant, 556 U.S. at 347, 173 L. Ed. 2d at 498, 129 S. Ct. at 1721.\nHere, we agree with the circuit court that more was required to justify the search of the defendant\u2019s vehicle after the officers observed a bullet in plain view, which precipitated the officers\u2019 action. Upon observing the bullet, the officers immediately removed the occupants from the vehicle, secured each in front of the Honda by handcuffing them, and placed each in custody without determining whether the bullet observed by the officers was in fact evidence of a crime. While the circuit court focused on the absence of any inquiry concerning whether the defendant or any of the passengers possessed a FOID card, it could just as well have stated that had the officers inquired whether any of the occupants was a convicted felon, probable cause would have existed for an arrest. As the State correctly points out, the absence of a valid FOID card makes possession of ammunition \u201ca Class A misdemeanor\u201d and a convicted felon cannot \u201cbe in possession of a valid FOID card.\u201d It is also telling that the State does not identify the crime believed to have been committed or about to be committed by the defendant before the search ensued. Rather, the State appears to assert that the search was justified based on a crime the officers had no information had been committed: \u201cthe police officers would have inevitably discovered the gun as a search incident to defendant\u2019s arrest for possession of ammunition without a valid FOID card.\u201d\nWe agree with the circuit court. Probable cause to believe that a weapon was present in the defendant\u2019s car did not exist based on the information the officers had at the time of the search of the defendant\u2019s car. Under the facts and circumstances of this case, the record fails to support that an exception to the fourth amendment warrant requirement applies to justify the search of the defendant\u2019s car.\nWe turn now to the State\u2019s claim based on the Terry stop.\nThe Bullets\nAs set out above, the circuit court, upon reconsideration, extended its suppression order to the bullets. The circuit court initially ruled that the bullets were properly seized pursuant to Terry. In its ruling on the defendant\u2019s motion to reconsider, the circuit court did not change its ruling that a lawful Terry stop occurred. Rather, the circuit court ruled that irrespective of the lawful Terry stop, further investigation was required to establish that the bullets were contraband before they could be lawfully seized by the officers. \u201cI believe the officer *** in this case should have inquired whether there was F.O.I.D. card regarding the seizure of the bullets.\u201d In so ruling, the circuit court principally relied on a federal case: United States v. Blom, 242 F.3d 799 (8th Cir. 2001). We are persuaded by the Blom reasoning as well.\nIn Blom, the federal appeals court considered the defendant\u2019s claim that \u201cthe district court erred in denying his motions to suppress ammunition seized by state authorities during the warrant searches of [three different properties, two homes and a vehicle].\u201d Blom, 242 F.3d at 807. Ammunition was seized from all three, but only two seizures were the subject of the appeal: ammunition from a vehicle searched pursuant to a warrant and ammunition from a second vehicle that was seized and impounded under the authority of a warrant for one of the real properties. Blom, 242 F.3d at 808. The government argued, consistent with the district court\u2019s findings, \u201cthat the ammunition was contraband falling within the plain-view exception to the Fourth Amendment\u2019s warrant requirement.\u201d Blom, 242 F.3d at 808. The defendant claimed, however, that Minnesota law only prohibited \u201ca convicted felon from possessing a firearm, but not ammunition.\u201d Blom, 242 F.3d at 808. The defendant further claimed that the officers that seized the ammunition did not know he was a convicted felon. The court\u2019s reasoning in rejecting the government\u2019s argument guides us here:\n\u201cWe reject the government\u2019s suggestion that a police officer with no knowledge of a citizen\u2019s criminal history may constitutionally seize firearms or ammunition without a warrant, so long as the citizen turns out to be, in hindsight, a convicted felon. In plain-view cases relied upon by the district court, the officers seizing a firearm or ammunition either knew the suspect was a convicted felon, [citation], or knew the weapon was linked to the criminal activity being investigated [citation]. Thus, the government must prove the officers knew when they seized the ammunition that Blom was a convicted felon.\u201d (Emphasis in original.) Blom, 242 F.3d at 808.\nUltimately, the federal court of appeals ruled that the seized ammunition from one vehicle \u201cwas sufficiently linked to criminal activity to justify its seizure on plain-view grounds.\u201d Blom, 242 F.3d at 809. As to the ammunition seized from the other vehicle, the government \u201cfailed to prove \u2014 at the suppression hearing or at trial \u2014 that this seizure came within the plain-view exception to the Fourth Amendment\u2019s warrant requirements [as ammunition is not contraband].\u201d Blom, 242 F.3d at 809. Nonetheless, \u201cthe admission of the small amount of ammunition seized from the [second vehicle] was harmless error.\u201d Blom, 242 F.3d at 809.\nThe State\u2019s contention here that the plain-view doctrine saves the evidence from suppression is similarly misplaced. \u201c[I]f police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object, i.e., if the incriminating character of the object is not immediately apparent, the plain view doctrine cannot justify the seizure.\u201d People v. Jones, 215 Ill. 2d 261, 272, 830 N.E.2d 541 (2005), citing Minnesota v. Dickerson, 508 U.S. 366, 374-75, 124 L. Ed. 2d 334, 345, 113 S. Ct. 2130, 2136-37 (1993). \u201c[The plain view] doctrine applies only when the evidence is seized incident to an arrest or is contraband.\u201d People v. Humphrey, 361 Ill. App. 3d 947, 950, 836 N.E.2d 210 (2005). As the circuit court ruled, the incriminating character of the bullets was never established because the bullets were contraband only if the defendant did not possess a valid FOID card, which the officers never inquired about.\nThe State\u2019s contention that the discovery of the bullet in the defendant\u2019s pants pocket and that it was lawfully seized because it resulted from a patdown of the defendant pursuant to Terry seeks to prove too much. While the officers may have had good reason to remove the bullet from the defendant\u2019s pants pocket, neither the discovery of a bullet on the defendant\u2019s person nor the recovery of a bullet from the car\u2019s console provided evidence that a crime had been committed based on the information the police developed. It is fundamental that a lawful Terry stop does not authorize police conduct that requires probable cause. \u201c \u2018The purpose of a Terry stop is to allow a police officer to investigate the circumstances that provoke suspicion and either confirm or dispel his suspicions.\u2019 \u201d People v. Close, 238 Ill. 2d 497, 512 (2010), quoting People v. Ross, 317 Ill. App. 3d 26, 31, 739 N.E.2d 50 (2000). An officer may seize an object discovered during a Terry stop if the officer has \u201cprobable cause to believe that the object is contraband.\u201d People v. DeLuna, 334 Ill. App. 3d 1, 13, 777 N.E.2d 581 (2002).\nThe possession of ammunition is an offense only when the person possessing the ammunition does not possess a valid FOID card. See People v. Mourecek, 208 Ill. App. 3d 87, 93, 566 N.E.2d 841 (1991) (independent basis for the defendant\u2019s arrest existed based on the plain-view recovery of live ammunition clips when the defendant had earlier stated to the arresting officer that he had no identification, from which \u201cit was reasonable to infer that defendant did not possess a FOID card\u201d). The officers in this case failed to take the simple, obvious, and nonintrusive action of asking the defendant to produce a FOID card. See People v. Levens, 306 Ill. App. 3d 230, 233, 713 N.E.2d 1275 (1999) (\u201cconservation officer may request the production of a valid FOID card after he discovers a firearm during his investigation of possible [Wildlife Code (520 ILCS 5/1.19 (West 1996))] violations\u201d).\nThe bullets observed on the console of the car and recovered from the defendant during the patdown did not confirm to the officers that the defendant engaged in conduct that constituted a crime. The State\u2019s repeated claims that the defendant is a convicted felon are to no avail when they constitute no more than \u201chindsight\u201d information. Blom, 242 F.3d at 808. As the United States Supreme Court noted: \u201cthe Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.\u201d Arizona v. Hicks, 480 U.S. 321, 329, 94 L. Ed. 2d 347, 357, 107 S. Ct. 1149, 1155 (1987) (officer\u2019s movement of stereo equipment, not subject to plain-view doctrine, constituted a search, which must be supported by probable cause).\nThe cases the State relies upon fail to support its contrary position.\nIn People v. Williamson, 58 Wis. 2d 514, 206 N.W.2d 613 (1973), the officers conducted a Terry stop of the defendant while he was operating a vehicle. The defendant admitted to not having his driver\u2019s license or any other type of identification. The defendant was ordered out of his vehicle and, during a patdown, the officer detected hard objects in the defendant\u2019s pants pocket. The officer asked the defendant to remove the objects, which \u201cturned out to be six .38-caliber cartridges.\u201d Williamson, 58 Wis. 2d at 519, 206 N.W.2d at 616. Upon recovery of the bullets, the defendant was asked to consent to the search of the car, which the trial court found the defendant gave when he said, \u201c \u2018I don\u2019t care.\u2019 \u201d Williamson, 58 Wis. 2d at 520, 206 N.W.2d at 616. The officer recovered a .38-caliber handgun from the glove box. Williamson, 58 Wis. 2d at 520, 206 N.W.2d at 616. We find no reason to disagree with the Williamson court\u2019s conclusion that no constitutional violation occurred. However, the analysis in Williamson does not support the State\u2019s position here where the search was not conducted based on consent.\nIn State v. Lizotte, 11 Conn. App. 11, 15, 525 A.2d 971, 973 (1987), the officers made a stop of a van driven by the defendant after observing an unsafe lane change. One of the officers looked into the passenger compartment and \u201csaw a leather ammunition belt containing ammunition on the floor of the van just to the right rear of the operator\u2019s seat.\u201d Lizotte, 11 Conn. App. at 14, 525 A.2d at 972. The ammunition belt was partially concealed by a towel. The trial court found the ammunition belt to be the sort that often had attached a gun holster. Lizotte, 11 Conn. App. at 18, 525 A.2d at 975 (\u201cThe court deemed as \u2018common knowledge that pistols are carried in holsters attached to belts such as the one observed\u2019 \u201d). The defendant was immediately removed from the van and patted down, which revealed no weapons. The defendant was handcuffed and placed in the police car, which the court of review concluded constituted the arrest of the defendant. Lizotte, 11 Conn. App. at 18, 525 A.2d at 974. The defendant challenged the police entry into his van to remove the towel, which revealed a fully loaded handgun. Though only partially concealed, the towel concealed that portion of the belt where the gun holster would be attached. The trial court found the gun belt and ammunition were \u201c \u2018highly indicative of the presence of a firearm.\u2019 \u201d Lizotte, 11 Conn. App. at 18, 525 A.2d at 975. The court of review upheld the denial of the defendant\u2019s motion to suppress, finding the police had probable cause that the defendant \u201cwas carrying a weapon in a motor vehicle in violation of [Connecticut law].\u201d Lizotte, 11 Conn. App. at 20, 525 A.2d at 976. Lizotte, with a gun belt and ammunition in plain view, is not similar to the case before us.\nIn United States v. Richards, 967 F.2d 1189, 1193 (8th Cir. 1992), following a traffic stop, the officer learned that the driver was \u201ca recently released felon.\u201d The officer accompanied the defendant to his police car and returned to the defendant\u2019s car. The officer asked the remaining occupant (Harp) to exit. Upon getting out, the \u201cofficer noticed the .22 cartridges sitting in plain view in the passenger compartment.\u201d Richards, 967 F.2d at 1193. The officer then \u201cmade a limited sweep of the passenger compartment and discovered the marijuana.\u201d Richards, 967 F.2d at 1193. The court found the \u201climited sweep permissible during a road-side stop,\u201d citing Long, 463 U.S. at 1051, 77 L. Ed. 2d at 1221, 103 S. Ct. at 3481. \u201cThe evidence recovered by this initial search gave sufficient probable cause to arrest Richards and Harp.\u201d Richards, 967 F.2d at 1193. As we stated, had the officers here received information that the defendant was a convicted felon, there would have been probable cause to arrest. However, as the State acknowledges in its brief, that information would have come to the officers only after they \u201cchecked defendant\u2019s criminal background prior to releasing him.\u201d\nIn People v. Moore, 328 Ill. App. 3d 1047, 768 N.E.2d 384 (2002), the circuit court denied the defendant\u2019s motion to quash arrest, but granted his motion to suppress \u201ca gun found during the search of defendant\u2019s car after his arrest.\u201d Moore, 328 Ill. App. 3d at 1049. The defendant was attempting to drive out from a residential driveway when a police car pulled in, blocking his exit. The defendant exited his car and, after a short time, ran off. The officer gave chase on foot. The officer was familiar with the defendant and \u201cwas aware that defendant was a convicted felon.\u201d Moore, 328 Ill. App. 3d at 1049. During the chase, the officer believed he saw the defendant toss a handgun. The defendant was arrested by an assisting officer. No handgun was recovered along the chase path. Upon the officers\u2019 return to the defendant\u2019s car, they observed \u201ca green, zippered gun case in plain view between the driver\u2019s seat and the console.\u201d (Emphasis added.) Moore, 328 Ill. App. 3d at 1050. The officers retrieved the gun case and discovered a revolver and ammunition inside. The Moore court reversed the grant of the defendant\u2019s motion to suppress because \u201cthe gun and related items are admissible under the plain view doctrine.\u201d Moore, 328 Ill. App. 3d at 1052. Based on the chasing officer\u2019s knowledge that the defendant was a convicted felon, his observation of the gun case in plain view in the defendant\u2019s vehicle \u201cwas certainly evidence that a crime may have been committed.\u201d Moore, 328 Ill. App. 3d at 1054. As the State repeatedly informs us, a convicted felon may not lawfully possess a gun in Illinois. Moore is similar to Richards because each involved a convicted felon prohibited by law from possessing either a weapon or ammunition.\nThe one case cited by the State similar to the instant case is State v. Garcia Garcia, 169 Ariz. 530, 531, 821 P.2d 191, 192 (1991). In Garcia Garcia, the Arizona Court of Appeals reversed the trial court\u2019s grant of the defendants\u2019 motion to suppress evidence seized during an automobile search, which was prompted in part by an officer noticing \u201cbullets lying on the front seat.\u201d Garcia Garcia, 169 Ariz. at 531, 821 P.2d at 192. The court first ruled: \u201cThe bullets, coupled with appellees\u2019 suspicious conduct, were enough to give a reasonable suspicion of criminal activity though not enough for probable cause for an arrest.\u201d Garcia Garcia, 169 Ariz. at 532, 821 P.2d at 193. Though it found no probable cause for an arrest of the defendants, the court nonetheless sanctioned the search of the defendants\u2019 vehicle based on officer safety under Terry. \u201c[E]ven though appellees were under police control during the search, there might well have been an officer safety problem absent the search. When the appellees were released, they would immediately have access to the vehicle and any weapons located therein, [citation], with which they could have threatened the officers\u2019 safety.\u201d Garcia Garcia, 169 Ariz. at 532, 821 P.2d at 193. We question whether the reasoning of the Arizona court can stand in light of Gant based on the Arizona court\u2019s finding that the \u201cappellees were under police control.\u201d Garcia Garcia, 169 Ariz. at 532, 821 P.2d at 193. In Gant, the Supreme Court made clear that Terry does not authorize the search of a vehicle (in the absence of probable cause), except when the circumstances in Long are established. Long \u201cpermits an officer to search a vehicle\u2019s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is \u2018dangerous\u2019 and might access the vehicle to \u2018gain immediate control of weapons.\u2019 \u201d Gant, 556 U.S. at 346-47, 173 L. Ed. 2d at 498, 129 S. Ct. at 1721, quoting Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481, citing Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. The indisputable fact that the occupants, if released, will return to the vehicle cannot justify a full-blown search of the vehicle without swallowing the \u201climited sweep\u201d authorized by Long. \u201cWe stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop ***.\u201d (Emphasis in original.) Long, 463 U.S. at 1049 n.14, 77 L. Ed. 2d at 1220 n.14, 103 S. Ct. at 3481 n.14. We agree with the Arizona court\u2019s ruling, however, that the evidence adduced was \u201cnot enough for probable cause for an arrest.\u201d Garcia Garcia, 169 Ariz. at 532, 821 P.2d at 193. This supports the conclusion we reached here; we differ only as to the scope of the search authorized by a lawful Terry stop.\nThe State also cites a New York trial court decision (People v. Catalano, 134 Misc. 2d 621, 512 N.Y.S.2d 626 (1987)) and unpublished dispositions with no precedential value in their own jurisdictions (State v. Ferguson, 135 Wis. 2d 544, 401 N.W.2d 28 (1986) (unpublished disposition); City of Willowick v. Stephenson, No. 98\u2014L\u2014144 (Ohio Ct. App. July 16, 1999) (not reported)), which we find no reason to address.\nFinally, we reject out of hand the additional arguments presented by the State that presuppose the lawfulness of the seizure of the weapon and the lawfulness of the search of the Honda under an unspecified automobile exception to the fourth amendment warrant requirement and the recovery of the handgun under the inevitable discovery doctrine. See People v. Estrada, 394 Ill. App. 3d 611, 626, 914 N.E.2d 679 (2009) (arguments raised for the first time on appeal are forfeited). While the State raised the inevitable discovery doctrine in its motion to reconsider, the timing of the State\u2019s appeal prevented the circuit court from ruling on its argument, which means the argument is raised for the first time on appeal. In any event, the doctrine is inapplicable here where no evidence was introduced in the circuit court that the defendant was a convicted felon or that his vehicle, which was on private property, was subject to being impounded and its contents inventoried. See Stack, 244 Ill. App. 3d at 397 (written procedures for impounding vehicles must be introduced into evidence \u201cto uphold an inventory search of those vehicles\u201d), citing People v. Williamson, 241 Ill. App. 3d 574, 608 N.E.2d 943 (1993).\nTo summarize, when no information was developed that the defendant was about to commit or had committed a crime, the officers acted precipitously in searching the defendant\u2019s car after all of its occupants were secured by handcuffs at the front of the car. The officers escalated a lawful Terry investigative stop into a full-blown arrest of the defendant and then engaged in the search of the vehicle as incident to the arrest. As we have determined, the search of the vehicle required probable cause. That a lawful Terry stop occurred did not authorize the officers to engage in conduct that required probable cause, which the officers never developed. DeLuna, 334 Ill. App. 3d at 13 (an officer may seize an object discovered during a Terry stop if the \u201cofficer has probable cause to believe that the object is contraband\u201d). The Terry stop did not justify the search of the defendant or the seizure of the bullets that were not contraband. See Close, 238 Ill. 2d at 509 (\u201cthe conduct that constitutes the crime is relevant\u201d in assessing whether the police action is justified). The officers could have confirmed their suspicions by inquiring whether the defendant was a convicted felon or possessed a valid FOID card. Both could not be true. See Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319, 1325-26 (1983) (\u201cinvestigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer\u2019s suspicions in a short period of time\u201d).\nCONCLUSION\nWe affirm the circuit court ruling that the search of the defendant\u2019s vehicle was not a lawful search in the absence of probable cause. While the officers engaged in a lawful Terry stop, the recovery of the bullets did not provide evidence of a crime in the absence of evidence that the defendant did not possess a valid FOID card or was a convicted felon. The officers improperly escalated the investigative stop into a full-blown arrest of the defendant and then engaged in the search of the vehicle as incident to the arrest. The circuit court did not err in granting the defendant\u2019s motion to suppress the bullets and gun unlawfully seized by the police.\nAffirmed.\nHALL, J., concurs.\nThe exhibits, admitted in evidence, are not included in the record on appeal.\nOfficer Alcott described the search of the defendant initially as a \u201cpat[ Jdown,\u201d and later characterized it as a custodial search.\nThe citation to Long raises the question whether the State sought to change its theory at the suppression hearing to justify the search based on reasonable suspicion under Terry rather than a search incident to an arrest. If that was the State\u2019s intention, it was incumbent upon the State to act upon it below. The State precluded the circuit court from ruling on its motion to reconsider when it filed this instant appeal before the circuit court could rule. The State may not advance a new theory on appeal in an effort to overturn an adverse decision. \u201cIt is well settled that the theory upon which a case is litigated in the trial court cannot be changed on appeal.\u201d First Capitol Mortgage Corp. v. Talandis Construction Corp., 47 Ill. App. 3d 699, 705, 365 N.E.2d 66 (1977), citing In re Estate of Leichtenberg, 7 Ill. 2d 545, 131 N.E.2d 487 (1956).", "type": "majority", "author": "PRESIDING JUSTICE GARCIA" }, { "text": "JUSTICE LAMPKIN,\ndissenting:\nI respectfully dissent. I would reverse the circuit court\u2019s rulings that suppressed the five bullets and the revolver seized from defendant\u2019s car and the one bullet seized from defendant\u2019s pocket. I believe the arresting officers, upon observing the plain-view bullet in the car, had reasonable suspicion to stop defendant and conduct protective searches for weapons on defendant\u2019s person and in the passenger compartment of his car. Then, the revolver found under the front-passenger floor mat gave the police probable cause to arrest defendant.\nI do not agree with the majority\u2019s analysis of this case as a search incident to a lawful arrest and conclusion that Gant is controlling. Rather, I believe that this case involved a brief investigative detention, or Terry stop, and is governed by Long, which held that police officers may search the passenger compartment of a car when no arrest has been made if they reasonably believe that the suspect is dangerous and may gain immediate control of weapons. Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481.\nWhere a motion to quash arrest or suppress evidence turns on a legal question of reasonable suspicion or probable cause, we apply de novo review. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). When an officer observes \u201cpossibly criminal behavior,\u201d he may make an investigatory stop without probable cause and make \u201creasonable inquiries\u201d to confirm or dispel his suspicions. Terry, 392 U.S. at 22, 30, 20 L. Ed. 2d at 907, 911, 88 S. Ct. at 1880, 1884. For a stop to be justifiable under Terry, the officer must present specific, articulable facts which would cause a reasonable person to fear for his safety or the safety of others. Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; People v. Galvin, 127 Ill. 2d 153, 174 (1989). Because an officer often must make quick judgments, the reasonableness of his conduct must be judged on the basis of his responsibility to prevent crime and catch criminals. People v. Stout, 106 Ill. 2d 77, 86-87 (1985). Reasonableness is measured in objective terms by examining the totality of the circumstances. People v. Moss, 217 Ill. 2d 511, 518 (2005).\nOfficer Alcott\u2019s testimony at the suppression hearing established the following sequence of events. First, the police officers approached defendant\u2019s car on the evening in question to investigate why he was blocking a parking lot entrance. The police officers observed, in plain view, one bullet in a plastic bag on the center console in defendant\u2019s car. The police officers ordered defendant and his two passengers out of the car, handcuffed them, and brought them to the front of the car. Officer Alcott removed the plastic bag from the console and saw that it actually contained five bullets. Officer Alcott then performed a protective patdown search on defendant and found one bullet in his pants pocket. Detective Johnson, who had searched the two passengers, then searched defendant\u2019s car and found the revolver underneath the front-passenger floor mat. Defendant and the two passengers were transported to the police department.\nAccording to the record, Officer Alcott was never directly questioned about when defendant was placed under arrest. Although the majority seems to attribute certain statements to Officer Alcott about defendant and his passengers being \u201cin custody,\u201d the record indicates that those words were actually spoken by defense counsel during his questioning of Officer Alcott. Moreover, counsel never clarified whether \u201cin custody\u201d meant that defendant was placed under arrest or merely detained during the investigatory stop. Consequently, I do not conclude from the vague statements in the record about defendant being \u201cin custody\u201d that the police officers arrested him right after ordering him out of his car based upon observing the plain-view bullet on the console.\nI agree with the majority that the officers\u2019 initial approach to defendant\u2019s car and question about blocking the entrance did not implicate the fourth amendment. I disagree, however, with the remainder of the majority\u2019s analysis because I believe the situation progressed into a lawful Terry stop when the officers saw the plain-view bullet in defendant\u2019s car. Even though the plain-view bullet was not contraband per se, the totality of the circumstances here gave the officers a reasonable, articulable suspicion to justify a stop.\nSpecifically, defendant\u2019s conduct on the evening in question, i.e., sitting in his car with another passenger and blocking a parking lot entrance while his car engine was running, had drawn the attention of the officers and prompted them to approach him and make inquiries. This meant that the officers had to drive their vehicle off the street, enter the parking lot, which had little or no pedestrian or vehicular traffic, and leave the relative safety of their car to question defendant. Once the two officers were standing at defendant\u2019s car, which now contained three men, the officers were in a vulnerable position.\nContrary to defendant\u2019s characterization of the situation as \u201cbenign,\u201d it is reasonable to infer from the undisputed facts that the officers believed their safety was in danger because the presence of the plain-view bullet raised their reasonable suspicion that a gun might also be in the passenger compartment of defendant\u2019s car. Stack, 244 Ill. App. 3d at 397, citing Wright, 104 Nev. at 523, 763 P.2d at 50. See also Garcia Garcia, 169 Ariz. at 531-32, 821 P.2d at 193 (because bullets strongly imply that guns are nearby, the bullets on the front seat of the car and the defendants\u2019 conduct justified a protective search of the passenger compartment of the car); People v. Kantowski, 98 Ill. 2d 75, 83 (1983) (\u201cit would have been profoundly foolish for the officer not to be concerned that a man carrying a 10-inch knife on a city street may have other weapons\u201d). Defendant argues that the plain-view bullet cannot justify a protective search because ammunition can be carried in a car legally. Assuming arguendo that defendant possessed the ammunition lawfully, the validity of a Terry search does not depend on whether a weapon is possessed in accordance with state law. Long, 463 U.S. at 1052 n.16, 77 L. Ed. 2d at 1222 n.16, 103 S. Ct. at 3482 n.16.\nRational inferences from the undisputed facts warranted the officers\u2019 reasonable belief that defendant and his passengers were dangerous and could gain immediate control of weapons. The officers needed to act quickly to maintain the status quo and protect themselves from the danger posed by the possibility that a readily accessible gun was in the car. The officers could not have turned their backs on the occupants of the car, and it would have been unreasonable for the officers to wait and see what the occupants of the car might do next. Furthermore, it would have been absurd for the officers to remain in such a vulnerable position while questioning defendant and his passengers about their possible status as valid FOID cardholders and allowing them to rummage about in their car in order to retrieve any such documentation. \u201cIt is in precisely such a situation, where there are reasonable grounds to believe that there is a need for immediate investigatory action, that the constitutional standards and safeguards of Terry v. Ohio come into play.\u201d Galvin, 127 Ill. 2d at 172.\n\u201c[I]nvestigative detentions involving suspects in vehicles are especially fraught with danger to police officers.\u201d Long, 463 U.S. at 1047, 77 L. Ed. 2d at 1218, 103 S. Ct. at 3480. When an officer has properly stopped an individual and reasonably believes, based on specific and articulable facts, taken together with rational inferences from those facts, that the suspect is dangerous and may gain immediate control of a weapon, then the officer may search the passenger compartment of a vehicle, limited to those areas in which a weapon may be placed or hidden. Long, 463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3480-81.\nBecause the encounter here had evolved into a lawful Terry stop, the officers could order defendant and his passengers out of their car pending completion of the stop without violating the protections of the fourth amendment. Sorenson, 196 Ill. 2d at 433; People v. Gonzalez, 184 Ill. 2d 402, 413-14 (1998). Furthermore, handcuffing defendant and the two passengers during their detention did not convert this Terry stop into an arrest because it was necessary for the officers\u2019 protection while they investigated their reasonable suspicion that a gun might be concealed either on the car occupants or in the passenger compartment of the car. People v. Starks, 190 Ill. App. 3d 503, 509 (1989). Here, the scope of the officers\u2019 search was limited to that necessary for the discovery of potential weapons endangering them, where they performed protective patdown searches of defendant and the passengers and then searched the passenger compartment of the car. After discovering the concealed revolver under the front-passenger floor mat, the officers had probable cause to arrest defendant for violating the law by carrying an immediately accessible firearm in his car.\nThe majority argues that after defendant and the passengers were outside the car and handcuffed, they were not dangerous and could not have gained immediate control of the revolver under the front-passenger floor mat. This same argument, however, was refuted in Long, where the Supreme Court noted that \u201cif the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.\u201d Long, 463 U.S. at 1052, 77 L. Ed. 2d at 1221, 103 S. Ct. at 3482.\nFurthermore, the majority\u2019s reliance on Gant is misplaced. In Gant, the Supreme Court upheld the suppression of cocaine found in the search of the defendant\u2019s car while he was handcuffed and locked in the back of a police car after his arrest for driving with a suspended license. Gant, 556 U.S. at 335, 173 L. Ed. 2d at 491, 129 S. Ct. at 1714. Gant, which addressed only a rule automatically permitting a search when the driver or an occupant of a car is arrested, is not applicable to the protective sweep situation at issue here. See Gant, 556 U.S. at 346-47, 173 L. Ed. 2d at 498, 129 S. Ct. at 1721 (distinguishing Long); Gant, 556 U.S. at 352, 173 L. Ed. 2d at 502, 129 S. Ct. at 1724 (Scalia, J., concurring) (clarifying that the holding in Long is undisturbed by Gant); United States v. Vinton, 594 F.3d 14, 24 n.3 (D.C. Cir. 2010) (distinguishing Gant in the case of a protective sweep search); United States v. Griffin, 589 F.3d 148, 154 n.8 (4th Cir. 2009) (accord).\nI also disagree with the majority\u2019s determination that the State attempted to advance a new theory on appeal. The majority speculates that the State, when it moved the circuit court to reconsider the suppression of the revolver, tried to justify the car search by substituting a new, Terry-stop rationale for the rationale of a search incident to a lawful arrest. The record, however, establishes that the State timely argued the Terry-stop justification during the first hearing on defendant\u2019s motion to suppress. Specifically, after the evidence was heard, the State argued that although the officers\u2019 initial approach to defendant\u2019s car did not constitute a stop, the situation became a stop when the officers observed the plain-view bullet in the car, \u201cask[ed] everyone out of the [car] for their safety,\u201d and reasonably suspected that a gun could also be in the car. Furthermore, when the suppression hearing was continued on a later date, the State again argued that the officers acted reasonably and legally upon seeing the plain-view bullet in the car by ordering everyone out of the car and searching for a gun because it was reasonable to believe the presence of ammunition indicated the presence of a gun.\nThe circuit court even acknowledged the State\u2019s Terry-stop rationale, finding that after the officers saw the plain-view bullet, they removed the occupants of the vehicle, handcuffed defendant and did \u201ca Terry pat-down search\u201d of defendant. In addition, at the final hearing before the circuit court, where defendant asked the court to reconsider its ruling that the bullets were lawfully seized, the State again argued that the seizure of the plain-view bullet was constitutional and that, \u201cunder Terry,\u201d the pat down of defendant and the seizure of the bullet in his pocket was also constitutional.\nAlthough the circuit court erroneously presumed that the State\u2019s theory to justify the car search was based on the rationale of a search incident to a lawful arrest, the State has not forfeited the Terry-stop justification and is not bound by the circuit court\u2019s erroneous presumption on appeal. Furthermore, unlike the circuit court\u2019s factual findings, its presumption concerning the State\u2019s theory to justify the car search is not entitled to deference by this court. See Sorenson, 196 Ill. 2d at 431.", "type": "dissent", "author": "JUSTICE LAMPKIN," } ], "attorneys": [ "Anita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Miles J. Keleher, and Ugo H. Buzzi, Assistant State\u2019s Attorneys, of counsel), for the People.", "Algis F. Bah\u00fanas, of Orland Park, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL COLYAR, Defendant-Appellee.\nFirst District (6th Division)\nNo. 1\u201409\u20140323\nOpinion filed December 30, 2010.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Miles J. Keleher, and Ugo H. Buzzi, Assistant State\u2019s Attorneys, of counsel), for the People.\nAlgis F. Bah\u00fanas, of Orland Park, for appellee." }, "file_name": "0294-01", "first_page_order": 310, "last_page_order": 331 }