People v. Gherna

• Decision Date: 21 September 2001
• Docket Number: No. 4-00-0871.,4-00-0871.
• Citation: 756 N.E.2d 468,258 Ill.Dec. 486,325 Ill. App.3d 157
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Lynette GHERNA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

756 N.E.2d 468

325 Ill. App.3d 157

258 Ill.Dec. 486

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Lynette GHERNA, Defendant-Appellee.

No. 4-00-0871.

Appellate Court of Illinois, Fourth District.

September 21, 2001.

Frank Young, State's Attorney, Danville, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Daniel D. Yuhas, Deputy Defender, Martin J. Ryan, Assistant Defender, Office of State Appellate Defender, Springfield, for Lynette Gherna.

Justice KNECHT delivered the opinion of the court:

In August 1999, the State charged defendant, Lynette Gherna, with possession of a controlled substance (720 ILCS 570/402(c) (West Supp.1999)). In June 2000, defendant filed a motion to suppress evidence and a motion to quash arrest and suppress statements. In September 2000, after holding a hearing on the motions, the trial court granted defendant's motions. The State brings this interlocutory appeal pursuant to Supreme Court Rule 604(a) (145 Ill.2d R. 604(a)). We reverse and remand.

I. BACKGROUND

On the night of August 26, 1999, Danville police officers Troy Wasson and Doug Smalley were on bicycle patrol in an area with high levels of drug activity when they noticed two people sitting in a pickup in a parking lot known for drug sales. Both officers were wearing bicycle patrol uniforms with a badge, and the bicycles were marked "police." As Officer Wasson approached the pickup, he noticed a bottle of beer between the driver and the passenger. At the preliminary hearing, Officer Wasson did not mention the officers were patrolling a high drug-sale area but merely testified the officers approached the vehicle after noticing the beer and the age of the passenger. The officers positioned themselves one on each side of the pickup. Officer Wasson recognized defendant, who was sitting in the driver's seat, and later learned the person in the passenger's seat was defendant's 13-year-old daughter. Officer Wasson asked defendant if he could see the bottle of beer, and defendant handed him the bottle. After discovering the bottle was unopened, Officer Wasson returned the bottle of beer to defendant.

Officer Wasson then asked defendant, who had become very nervous, what she was doing in the area. As they spoke, Officer Wasson noticed an object underneath defendant's leg. Upon being questioned about the object, defendant stated she did not know what it was and handed it to Officer Wasson. The object was a LINK card with the name Lowell Briggs. Officer Wasson asked her how she got the card, and she replied she was unaware of how the card got into her pickup. Officer Wasson then asked defendant if it were a possibility someone had dropped other items in the truck, such as illegal drugs or narcotics or weapons. Defendant responded it was a possibility and informed the officers they were free to look.

Officer Wasson asked her to step out of the pickup, and defendant did so willingly. Defendant's daughter remained in the pickup. Officer Wasson asked defendant if she had anything on her person belonging to Lowell Briggs, and she stated, "No." He then asked defendant if she had any illegal drugs on her or in her possession, and she replied she did not. Officer Wasson paused for a few seconds and then defendant began emptying her pockets. As she removed her hand from her front left shorts pocket, something fell to the ground. Upon inspection, Officer Wasson believed the item was a clear plastic bag containing crack cocaine. The substance field-tested positive for crack cocaine weighing approximately 4.1 grams.

The officers arrested defendant and, after a September 2000 hearing, the trial court granted defendant's motion to suppress. The trial court found:

"[T]he officers approached specifically as a result of their observation of the youth of the passenger and the suspicion that underage drinking was taking place. This does not appear to be in the nature of a community[-]caretaking function; clearly the officers intended to investigate and determine whether underage drinking was occurring. Therefore, the [c]ourt finds this circumstance to be more akin to a `Terry stop [(Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))],' in which the police have a reasonably articulable suspicion of criminal activity. Following this reasoning, the [c]ourt relies upon the decision of the Supreme Court [of Illinois] in People v. Brownlee, 186 Ill.2d 501, * * * , 713 N.E.2d 556 (1999), in finding that the [officers'] actions and the inquiry that followed amounted to an unlawful detention. Once the officers found the beer to be unopened, the reason for their inquiry ended. Upon asking the [d]efendant to leave the car so as to conduct a conversation outside the presence of her daughter, the [d]efendant was unlawfully detained."

This appeal followed.

II. ANALYSIS

A. Motion To Strike Portions of Reply Brief

Initially, we address defendant's motion to strike certain portions of the State's reply brief. Specifically, defendant complains the State, in its reply brief, argues for the first time the police officers' actions constituted a proper Terry stop. Defendant notes Supreme Court Rule 341(e)(7) (188 Ill.2d R. 341(e)(7)) provides any points not argued in an appellant's opening brief "are waived and shall not be raised in the reply brief."

We conclude the State's argument in its reply brief was in response to arguments raised by defendant in her appellee brief. Supreme Court Rule 341(g) (188 Ill.2d R. 341(g)) provides an appellant may respond to arguments presented in the appellee's brief. An appellee may argue any point supported by the record but an appellant is under no obligation to anticipate every argument an appellee might raise and address it in its initial brief. Oliveira v. Amoco Oil Co., 311 Ill.App.3d 886, 891, 244 Ill.Dec. 455, 726 N.E.2d 51, 56 (2000). Therefore, defendant's motion to strike a portion of the State's reply brief is denied.

B. Standard of Review

The State argues the proper standard of review is de novo because the issue raised on appeal is a question of law. Defendant contends the trial court made factual findings in making its judgment and those findings should be reviewed under the manifestly erroneous standard. Where both questions of law and fact are raised on appeal, we find the appropriate standard of review is the one set forth by the Supreme Court of Illinois in People v. Crane, 195 Ill.2d 42, 252 Ill.Dec. 687, 743 N.E.2d 555 (2001). See O'Neill, High court climbs toward the light on proper review standards, Chicago Daily Law Bulletin, February 2, 2001, at 5. Thus, we will not disturb any factual determinations made by the trial court and contained in the record, unless they are against the manifest weight of the evidence. Crane, 195 Ill.2d at 51, 252 Ill.Dec. 687, 743 N.E.2d at 562. However, we will review de novo the ultimate determination of whether the evidence should be suppressed. See Crane, 195 Ill.2d at 51, 252 Ill.Dec. 687, 743 N.E.2d at 562.

C. Motion To Suppress

The Supreme Court of Illinois has divided police-citizen encounters into three tiers. The first tier involves an arrest and requires probable cause. The second tier involves a Terry stop, which constitutes a brief seizure that requires a reasonable suspicion of criminal activity. The third tier involves no coercion or detention and therefore does not involve a seizure. The third tier is commonly known as the community-caretaking or public-safety function. People v. Murray, 137 Ill.2d 382, 387, 148 Ill.Dec. 7, 560 N.E.2d 309, 311-12 (1990). The State maintains the police officers' actions in this case fall under the community-caretaking function. We agree.

A seizure occurs only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16, 20 L.Ed.2d at 905 n. 16. The court will look at the totality of the circumstances surrounding the incident to determine if "a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980). Mendenhall sets forth examples of circumstances that may suggest a seizure: (1) the threatening presence of several police officers; (2) the display of an officer's weapon; (3) an officer physically touching the citizen; and (4) an officer's use of language or tone of voice indicating that the citizen's compliance with the request is compelled. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509.

None of those examples occurred in this case. Only two officers were present, not several. See Murray, 137 Ill.2d at 391, 148 Ill.Dec. 7, 560 N.E.2d at 313. No weapons were displayed, and no testimony of a physical touching existed; nor was testimony presented showing either officer's use of language or tone indicated compliance with the officer's request was compelled.

The facts do not support defendant's contention that a show of authority was made because of (1) the way the two officers positioned themselves next to the vehicle, (2) the scanning of the interior of the vehicle with a flashlight, and (3) the officer's asking defendant to exit the vehicle. To determine if a seizure occurred, the objective test focuses on the coercive effect of police conduct as a whole, not on the particular details of that conduct in isolation. People v. Erby, 213 Ill.App.3d 657, 662, 157 Ill.Dec. 276, 572 N.E.2d 345, 348 (1991). Shining a light into a parked vehicle is not a seizure absent coercion by police officers. Erby, 213 Ill.App.3d at 662,157 Ill.Dec. 276,572 N.E.2d at 348. Moreover, asking someone to exit a vehicle does not constitute a show of authority unless the officers indicate compliance is compelled. Murray, 137 Ill.2d at 391,148 Ill.Dec. 7,560 N.E.2d...