People v. Moss

• Decision Date: 15 December 2005
• Docket Number: No. 99616.,99616.
• Citation: 217 Ill.2d 511,842 N.E.2d 699
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Winifred MOSS, Appellee.
• Court: Illinois Supreme Court

842 N.E.2d 699

217 Ill.2d 511

The PEOPLE of the State of Illinois, Appellant, v. Winifred MOSS, Appellee.

No. 99616.

Supreme Court of Illinois.

December 15, 2005.

Rehearing Denied January 23, 2006.

COPYRIGHT MATERIAL OMITTED

Lisa Madigan, Attorney General, Springfield, and Rod Wolf, State's Attorney, Harrisburg (Gary Feinerman, Solicitor General, Linda D. Woloshin and Russell K. Benton, Assistant Attorneys General, Chicago, Norbert J. Goetten, Stephen E. Norris and Sharon Shanahan, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, of counsel), for the People.

Daniel M. Kirwan, Deputy Defender, and Elaine M. Belcher, Assistant Defender, Office of the State Appellate Defender Mt. Vernon, for appellee, and Winifred Moss, pro se.

Justice GARMAN delivered the opinion of the court:

Defendant was arrested and charged in the circuit court of Saline County with one count of unlawful possession of a controlled substance. 720 ILCS 570/402(a)(2)(A) (West 2002). The evidence supporting this charge was recovered during a lawful traffic stop. Defendant was a passenger in the vehicle stopped by police and was also its registered owner. He gave consent to a search of the vehicle. While the vehicle search was in progress, an officer performed a pat-down search of defendant to check for weapons. At the time of this incident, defendant was on mandatory supervised release (MSR) from the Illinois Department of Corrections.

The circuit court granted defendant's motion to suppress cocaine that was seized during the pat-down search. The circuit court ruled that the search was illegal because there was no articulable suspicion to justify it. The appellate court affirmed. 353 Ill.App.3d 663, 289 Ill.Dec. 742, 820 N.E.2d 518. We granted the State's petition for leave to appeal (177 Ill.2d R. 315) to determine whether defendant's fourth amendment rights were violated when an officer lacking individualized suspicion of illegal activity performed a pat-down search of defendant, a parolee subject to a search condition. We now reverse the judgments of the appellate court and the circuit court.

BACKGROUND

According to testimony given at a suppression hearing, Illinois Secretary of State Police Officer Richard Lowe executed a traffic stop on Route 13 in Saline County between 3 p.m. and 4 p.m. on November 8, 2002. The vehicle he stopped, an orange truck, had been speeding. Before Officer Lowe exited his squad car, he notified a dispatcher of his location and the license plate number of the truck. He then approached the truck to ask for identification from the driver, John Sanders, and his two passengers, Shawn McGee and defendant. Defendant called Officer Lowe by his first name. This seemed odd to Lowe, who did not think he had previously met defendant. All three men complied with the officer's request for identification information, although Sanders produced a driver's license that was broken in half and defendant orally gave the officer his information instead of producing a license.

Officer Lowe returned to his car and relayed the identifications to his dispatcher. The dispatcher informed Officer Lowe that defendant, the registered owner of the truck, was a parolee.¹ The dispatcher also informed Lowe that Sanders had two prior drug-related arrests. This radio exchange was overheard by Illinois State Police Trooper Hobert Boyles, who recognized the names of the three men in the truck. Boyles knew through contact with other officers that all three "had prior arrests for and were known to possess firearms." He had also been personally involved in a recent arrest of McGee for a gun violation. Boyles contacted Lowe via radio to ask if Lowe would like his assistance, and Lowe accepted. Boyles drove to join Lowe at the site of the traffic stop.

Meanwhile, Lowe spoke with Sanders about his broken driver's license, and then returned to his squad car to fill out a speeding citation. Once the citation was complete, he asked Sanders for his permission to search the truck. Although Lowe had no specific information about any illegal activity, he "felt that there might possibly have been some drugs in the vehicle." He based this belief on the histories of the men in the truck and the direction they were traveling, theorizing that they may have picked up or dropped off drugs in Marion. Sanders referred Officer Lowe's request to defendant, who agreed to a search of his truck. At about that time, Boyles pulled up behind Lowe's squad car.

Defendant, Sanders, and McGee had exited the truck in response to a request by Lowe. Lowe, speaking with Sanders and McGee, asked if either of the men "had anything." In response, Sanders stated that he had a knife, which Lowe took from him. Lowe then performed a pat-down search of both men. He did not ask their permission to execute this search. As Officer Lowe began to search the truck, Trooper Boyles performed a pat-down search of defendant. Boyles similarly did not ask defendant's permission. Boyles testified that it is his practice to perform pat-down searches for officer safety whenever subjects are outside a vehicle at a traffic stop, regardless of whether their behavior arouses any suspicion. He also testified that at no time did the actions of defendant, Sanders, or McGee put him in fear. Nothing he saw during the course of the traffic stop made him feel as if he were in danger, nor did he have any information that defendant and his associates were committing any offense other than speeding.

Boyles instructed defendant to face the front of Officer Lowe's car and clasp his hands behind his back. He patted down defendant's torso, back, legs, ankles, and groin. In doing so, Boyles felt two hard objects in the front of defendant's pants. He testified that these objects were approximately the size of a nine-volt battery, and that he is aware of weapons that are this size. Boyles also felt a few smaller hard pieces and a powdery substance. All of the items seemed to be contained in a bag. Boyles testified that he maintained contact with the hard object, trying to determine what it was. He asked defendant three times what was in his pants. When defendant did not answer his questions, Boyles ordered him to turn around and open the front of his pants. Instead, defendant removed the object from his pants. The object was a bag of a white, solid substance that field-tested positive for cocaine.

Defendant was arrested and charged with unlawful possession of a controlled substance. 720 ILCS 570/402(a)(2)(A) (West 2002). The circuit court granted a pretrial motion by defendant to suppress the evidence found in the pat-down search.

The court first concluded that individuals on MSR retain constitutional protection against intrusions, despite a condition of MSR which states that they "shall consent" to certain searches. The court determined that by signing the indication he had received notice of the conditions of his MSR, defendant did not prospectively consent to any search by a parole officer or police officer. Observing that failure to comply with the conditions of MSR could result in its revocation, the court concluded that Moss had the option of consenting to the search or losing his MSR.

The court next addressed whether the search was permissible without consent. It found that Officer Lowe's suspicion that drugs might be in the pickup was "a mere hunch." There was no evidence that the men were engaged in a crime. Trooper Boyles had no reason to believe the men were armed or that they were committing a crime other than the speeding violation. The court concluded there were no articulable facts to justify the search. It later denied the State's motion to reconsider. The State brought an interlocutory appeal under Supreme Court Rule 604(a)(1) (188 Ill.2d R. 604(a)(1)).

A divided appellate court affirmed the ruling of the circuit court. The majority concluded that the evidence did not support a reasonable belief that defendant was armed and dangerous or engaged in criminal activity. 353 Ill.App.3d at 667-68, 289 Ill.Dec. 742, 820 N.E.2d 518. It agreed with the trial court's conclusion that defendant's MSR status may have reduced his expectation of privacy, but did not eliminate it entirely. 353 Ill.App.3d at 668, 289 Ill.Dec. 742, 820 N.E.2d 518. A special concurrence opined that the traffic stop became illegal long before the pat-down search of defendant. 353 Ill.App.3d at 669, 289 Ill.Dec. 742, 820 N.E.2d 518 (Kuehn, J., specially concurring). The concurring justice wrote that performing a records check on Sanders' passengers and asking permission to search the vehicle both impermissibly exceeded the scope of the traffic stop. 353 Ill.App.3d at 669, 289 Ill.Dec. 742, 820 N.E.2d 518 (Kuehn, J., specially concurring).

The dissent concluded that circumstances objectively warranted a pat-down of all three men. 353 Ill.App.3d at 671, 289 Ill.Dec. 742, 820 N.E.2d 518 (Welch, J., dissenting). The officers knew the men to have criminal histories, it was late on a November afternoon, and one officer would be in a compromising position while searching the truck. 353 Ill.App.3d at 671-72, 289 Ill.Dec. 742, 820 N.E.2d 518 (Welch, J., dissenting). The dissent noted that pat-down searches should be permissible as a matter of routine to guarantee the safety of police officers. 353 Ill.App.3d at 672, 289 Ill.Dec. 742, 820 N.E.2d 518 (Welch, J., dissenting). The special concurrence responded to this argument, emphasizing that "the constitution does not allow pat-down searches of traffic offenders as an unvarying or habitual method of police procedure." 353 Ill.App.3d at 670-71, 289 Ill.Dec. 742, 820 N.E.2d 518 (Kuehn, J., specially concurring).

We granted the State's petition for leave to appeal. 177 Ill.2d R. 315. In reviewing this decision, we examine first whether the terms of the defendant's MSR established consent to a pat-down search. Second, we determine whether the search was constitutional in the...