People v. Thomas

• Decision Date: 10 August 2000
• Docket Number: No. 5-99-0156.,5-99-0156.
• Citation: 315 Ill. App.3d 849,734 N.E.2d 1015,248 Ill.Dec. 724
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Bruce D. THOMAS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

734 N.E.2d 1015

315 Ill. App.3d 849

248 Ill.Dec. 724

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Bruce D. THOMAS, Defendant-Appellee.

No. 5-99-0156.

Appellate Court of Illinois, Fifth District.

August 10, 2000.

Gary Duncan, State's Attorney, Jefferson County, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Gerry R. Arnold, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Appellant.

Daniel M. Kirwan, Deputy Defender, Robert S. Burke, Assistant Defender, Office of the State Appellate Defender, Mt. Vernon, for Appellee.

Justice KUEHN delivered the opinion of the court:

William Wardlow strolled down a Chicago sidewalk carrying a white bag under his arm. He was walking in one of Chicago's "high crime neighborhoods." A caravan of four city squad cars on area patrol drove by. As the last squad car cruised past Wardlow, he exchanged glances with the officers inside and sprinted off. The officers chased him. After they caught him, they discovered a gun in his bag. Wardlow was arrested for carrying a concealed weapon.

Confronted with these facts, the United States Supreme Court recently declared that Wardlow's unprovoked flight in the face of a potential encounter with police officers raised enough suspicion to justify the ensuing pursuit and investigatory stop. See Illinois v. Wardlow, 528 U.S. 119, ___, 120 S.Ct. 673, 676-77, 145 L.Ed.2d 570, 577 (2000). But what if the Chicago police officers specifically targeted Wardlow for an illegal stop and detention, and their effort to effect it precipitated his flight? Can flight induced by a police effort to effect an unwarranted investigatory stop turn otherwise ungrounded suspicion into suspicion that reasonably justifies the ultimate stop and detention? Can flight in the face of an impending illegal encounter cure the constitutionally impermissible police conduct that provokes that flight? These are questions that must be answered in this case.

The defendant, Bruce D. Thomas, and Officer Farrin Melton were old acquaintances. Officer Melton and his fellow officers on the Mt. Vernon Police Department came to know the defendant on the streets of Mt. Vernon, where he insisted upon plying an illegal drug trade. This was not the first time that the defendant had been arrested in possession of illegal drugs.

As the hour approached midnight on June 20, 1998, the defendant rode his bicycle down a street in Mt. Vernon. Officer Melton was completing the issuance of a traffic ticket on that same street. He watched the defendant pedal by and noticed a police scanner in the defendant's hand. Officer Melton had just heard about the defendant's recent release from prison. At the same time, he heard of an informant's tip that the defendant had already returned to his wicked ways. A confidential informant had advised the local narcotics division that the defendant was using his bicycle to make nighttime deliveries of illegal drugs to area customers.

Based upon his knowledge of the defendant's unsavory past and the informant's tip, coupled with the defendant's possession of a police scanner, Officer Melton decided that he and the defendant needed to have a brief chat. He felt that the circumstances warranted a "field interview." In order to question the defendant about his night's activities, Officer Melton had to chase after him and bring his midnight ride to a halt.¹

When Officer Melton finished issuing the traffic ticket, he drove off to find the defendant. When he found him, he radioed Officer Steven Burtnett and announced his intention to stop the defendant. The defendant heard the communication on his police scanner. Officer Melton overtook the defendant, passed him by, and positioned his squad car across the defendant's path of travel. As Officer Melton pulled into position to stop the bicycle from pursuing its course, the defendant made an abrupt turn into an alleyway and departed the area at an accelerated pace. As Officer Melton was still behind the wheel of his squad car, he had no opportunity to verbally compel a stop.

Officer Burtnett was on his way to assist in the "field interview" when he saw the defendant's evasive change in direction. He was first to pursue the defendant down the alley. Officer Burtnett overtook the hard-pedaling bicyclist and pulled his squad car alongside. As he rolled down his window and directed the defendant to stop, the defendant changed direction again and pedaled even harder.

By this time, Officer Melton had joined the chase. Both officers employed their flashing red lights and chased the defendant through the back streets and alleys of Mt. Vernon. The defendant worked hard to escape them, but he and his bicycle proved no match for the horsepower that the officers had at their disposal. He decided to abandon his bicycle and run for the cover of darkness afforded by a vacant field. Officer Melton pursued his weary prey on foot. He caught the defendant and conducted a pat-down search. The search uncovered three rocks of crack cocaine in the defendant's pocket. Officer Melton placed the defendant under arrest.

Shortly thereafter, the State filed an information that charged unlawful possession with the intent to deliver cocaine. The defendant's attorney filed a motion to suppress, claiming a fourth amendment violation. The motion sought to suppress the cocaine that Officer Melton retrieved from the defendant's pocket. It alleged that the cocaine's discovery was the product of an unreasonable seizure of the defendant's person. At the hearing on the motion, Officer Melton admitted that he had no information that the defendant was carrying illegal drugs on the night in question. He also conceded that it was not illegal for the defendant to possess a police scanner.

After the evidentiary hearing, the trial judge entered an order suppressing the contraband. He noted that Officer Melton did not observe any criminal conduct. The defendant was simply riding his bicycle on a public street and carrying a police scanner. The informant had not told the police that the defendant's drug-dealing was a nightly activity. Nor did the informant predict drug-dealing that evening. The trial judge found that the informant's tip lacked sufficient specificity and, even when coupled with the defendant's possession of a police scanner, failed to provide a basis for Officer Melton to believe that the defendant was actively engaged in drug-dealing. As to the suspicion aroused by the defendant's flight, the trial judge relied upon People v. Wardlow, 183 Ill.2d 306, 233 Ill.Dec. 634, 701 N.E.2d 484 (1998). When our supreme court addressed the question of flight from police officers, it held that Wardlow's unprovoked flight was insufficient to justify a Terry² stop.

The State brought this appeal.

We will not overrule a trial judge's order of suppression unless it is found to be manifestly erroneous. See People v. Dilworth, 169 Ill.2d 195, 201, 214 Ill.Dec. 456, 661 N.E.2d 310, 314 (1996). Here, there was nothing manifestly wrong with the trial judge's decision when he made it. However, prior to oral argument on appeal, the United States Supreme Court handed down its decision in Illinois v. Wardlow. The rule of law that controlled the question of a defendant's flight was changed. In reversing our high court, the United States Supreme Court held that unprovoked flight is the kind of nervous, evasive behavior that warrants a finding of reasonable suspicion and authorizes a Terry stop. See Illinois v. Wardlow, ___ U.S. at ___, 120 S.Ct. at 676-77, 145 L.Ed.2d at 577.

The trial judge's suppression order rested upon a finding that Officer Melton effected a Terry stop without having the requisite degree of suspicion to support it. His finding addressed the position taken by the State at the time of the suppression hearing. At that time, the State maintained that Officer Melton's actions constituted an uninterrupted effort to effect a Terry stop. The State urged that from the moment he decided to stop the defendant, Officer Melton possessed a reasonable and articulable suspicion that the defendant was engaged in criminal activity. The State claimed that the defendant's flight only added to the requisite degree of suspicion that Officer Melton already possessed.

Now, the State recasts its position. The trial judge was never asked to examine the facts of this case from the perspective raised on appeal. With a new outlook on the importance of the defendant's flight, the State revisits Officer Melton's testimony at the suppression hearing and fashions its argument to conform with it.

The State now argues that the decision to effect an investigatory stop was reached only after the defendant fled. Thus, the decision to effect a seizure of the defendant's person was reached at a time when a sound basis for it existed. The State abandons the position that Officer Melton possessed enough information to justify an investigatory stop prior to the defendant's flight. Instead, the State points to Officer Melton's claim that he only wanted to talk with the defendant. It points out:

"`[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.'"³

The State further points out, "`[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual [citations] * * *.'"⁴ The State now emphasizes Officer Melton's stated purpose, to conduct a "field interview." And it assigns a meaning to this nomenclature. The State suggests that Officer Melton was describing that form of "personal intercourse between policemen and citizens" (Terry, 392 U.S. at 19 n. 16, 88 S.Ct....