                                       2016 IL App (3d) 140648

                                Opinion filed March 29, 2016
     _____________________________________________________________________________

                                                IN THE

                                   APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                                 2016

     THE PEOPLE OF THE STATE OF                     )      Appeal from the Circuit Court
     ILLINOIS,                                      )      of the 14th Judicial Circuit,
                                                    )      Rock Island County, Illinois,
            Plaintiff-Appellant,                    )
                                                    )      Appeal No. 3-14-0648
            v.                                      )      Circuit No. 12-CF-43
                                                    )
     AMBER M. SMITH,                                )
                                                    )      Honorable F. Michael Meersman,
            Defendant-Appellee.                     )      Judge, Presiding.
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF                     )      Appeal from the Circuit Court
     ILLINOIS,                                      )      of the 14th Judicial Circuit,
                                                    )      Rock Island County, Illinois,
            Plaintiff-Appellant,                    )
                                                    )      Appeal No. 3-14-0649
            v.                                      )      Circuit No. 12-CF-42
                                                    )
     KRISTOPHER YOUNGMAN,                           )
                                                    )      Honorable F. Michael Meersman,
            Defendant-Appellee.                     )      Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Carter and Holdridge concurred in the judgment and opinion.

                                              OPINION

¶1          Defendants, Amber M. Smith and Kristopher Youngman, were each charged with one

     count of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2014)) and
     one count of unlawful possession of a hypodermic needle (720 ILCS 635/1 (West 2014)). The

     trial court subsequently granted each defendant’s motion to suppress evidence, and the State

     appeals on certificates of impairment. We consolidated the appeals. We reverse and remand for

     further proceedings.

¶2                                                  FACTS

¶3          On May 8, 2014, Smith filed a motion to suppress evidence, arguing that officers did not

     have probable cause or reasonable suspicion to seize her. Youngman followed suit.

¶4          At the hearing on Smith’s motion to suppress, Officer Jack LaGrange of the Rock Island

     police department testified that on January 16, 2014, at approximately 4:14 p.m., he was

     traveling northbound on 8th Street, approaching 14th Avenue. LaGrange observed a vehicle pull

     immediately to the side of the road upon the driver of the vehicle seeing the officer. LaGrange

     then passed by the vehicle and observed a white male driver, a white female in the front

     passenger seat, a black male in the right rear seat, and a white female child in the left rear seat.

     When LaGrange circled back to the vehicle, the black male passenger was standing at the

     passenger side of the vehicle and abruptly walked off when he saw LaGrange return. LaGrange,

     a police officer for eight years, testified that it is common for people to briefly enter vehicles to

     conduct drug transactions. LaGrange parked his car behind the vehicle and approached the

     driver’s side of the vehicle on foot.

¶5          LaGrange knew the area was known for drug activity. He asked the driver, Youngman,

     why he was in the area. Youngman replied that he was picking up his brother from a methadone

     clinic and was to meet him on 9th Street. LaGrange advised Youngman that the clinic was in the

     4200 block of 14th Avenue while Youngman was in the 700 block of 14th Avenue. Youngman

     was “quite a ways away” from the clinic and headed in the wrong direction. LaGrange then


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     asked for the identity of the black male he had observed in the car and walking away from the

     car. Youngman replied that there had been no black male in the car, next to the car, or walking

     away from the car. LaGrange obtained the identifications of the vehicle’s occupants and ran

     them for warrants and did license checks. Through this process, LaGrange learned that

     Youngman had a prior drug arrest.

¶6          After returning the licenses, LaGrange asked Youngman to step out of the vehicle

     because he did not want to talk about potential drug activity in front of the child. Youngman

     willingly exited the vehicle and LaGrange explained his suspicion that Youngman was lying to

     him. LaGrange testified that he asked Youngman when he last used heroin, and Youngman

     replied that he did not use heroin. LaGrange then asked Youngman to roll up his sleeves and

     Youngman did so, revealing track marks on his arms. When LaGrange, again, asked Youngman

     when he last used heroin, Youngman replied that he had used it the day before.

¶7          LaGrange testified, “At that time I asked him if he had anything illegal on him. He said

     he did not, go ahead and search me.” Upon searching Youngman, LaGrange found a small tin

     box inside a coat pocket. Youngman immediately claimed the box was not his and that Smith,

     who was in the front passenger seat, must have put it there. Inside the box, LaGrange found a

     baggy containing a tan powder he recognized as heroin. LaGrange placed Youngman in

     handcuffs, sat him in his squad car, and called for another unit.

¶8          When Officer Jonathan Cary arrived on the scene, LaGrange spoke to Smith. Smith

     stated that she did not use drugs and did not know how the box came to be in Youngman’s

     pocket. LaGrange noticed that Smith had a fresh puncture mark on her hand. Smith raised her

     sleeves at LaGrange’s request, revealing track marks on her arms. Smith admitted to LaGrange

     that she had a drug problem. Because it was cold outside, Cary then had Smith sit in the back of


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       his vehicle so he could conduct a more thorough conversation. Cary testified that he interviewed

       Smith in the back of his squad car. Smith was not handcuffed, but he did Mirandize her. Smith

       agreed to talk to Cary. No details of the interview were elicited and defense counsel declined

       cross-examination.

¶9            LaGrange testified that defendants’ vehicle was still parked when he pulled behind it and

       could have left the scene had the driver chosen to do so. LaGrange would not have pursued the

       vehicle because such pursuits are not allowed in Rock Island. LaGrange testified, however, that

       Youngman and Smith were not free to leave after LaGrange returned the licenses because he was

       conducting an investigation at that point. Neither Youngman nor Smith asked to leave the scene,

       and LaGrange never told them they were not free to leave.

¶ 10          The trial court granted Smith’s motion to suppress, reasoning that LaGrange did not

       “have an articulable suspicion to approach the car.” The court pointed out that the car had pulled

       over legally, and there was no evidence of traffic or license infractions.

¶ 11          The court also opined that the defendants should have been free to leave after LaGrange

       had run their licenses and found them to be clear. The court stated, “[Y]ou can’t just ask the

       people to roll their sleeves up because you think they may not be telling you the truth.”

¶ 12          The trial court also found that LaGrange had no reasonable, articulable suspicion to

       suspect Smith of committing a crime, stating, “he has no articulable suspicion to tell her to raise

       her shirt up to try to obtain evidence against her.” Further, the court opined:

                      “[H]e sure doesn’t have the right to go having her roll up her

                      sleeves when he has nothing else to base his investigation on other

                      than a co-defendant’s statement that she must have stuck

                      something in his pocket. *** But just because it’s in his pocket and


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                      he says, Well, she must have put it there, doesn’t automatically

                      give him the right to tell her to *** start rolling her sleeves up.”

       The State filed a motion to reconsider the ruling on Smith’s motion on August 8, 2014. The trial

       court denied it on August 14. The State filed its notice of appeal on August 20.

¶ 13          Youngman’s motion to suppress went to hearing on August 14, 2014. The prosecutor

       agreed that the evidence presented would be substantially the same as that presented at the

       hearing on Smith’s motion, with the additional evidence that Youngman had been Mirandized

       and waived his rights before making his statement. The trial court noted that its ruling would be

       the same because before Youngman was Mirandized, the original stop had been unlawful. The

       court then stated, “[T]he State has filed *** a Motion to Reconsider or a response to the defense

       of what they used and I’ve got both of those. One is Mr. Youngman[’s] and one is Miss

       Smith[’s], but realistically they are the same.” After discussing the grounds for suppression in

       both cases, the court stated, “[T]he Motion to Reconsider in relation to Miss Smith is denied.

       The defense Motion to Suppress on Mr. Youngman is allowed. The Motion to Reconsider, also

       filed by [the prosecutor], is denied.”

¶ 14          A written order from the trial court dated December 4, 2014, states, “The state’s motion

       to reconsider the motion to suppress was heard and denied on 8/14/2014.” The State filed its

       notice of appeal on August 20, 2014. The record contains a motion to reconsider the ruling on

       Youngman’s motion file-stamped August 18, 2014.

¶ 15          In their initial brief on appeal, defendants raised separate jurisdictional defects in each of

       their cases. Specifically, defendants contended that the appeal in Smith’s case was untimely

       because her suppression motion was granted on July 2, 2014, but the motion to reconsider was

       not filed until August 8, 2014, which was 37 days after the original ruling. In Youngman’s case,


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       defendants contended that the motion to reconsider, formally filed on August 18, 2014, had not

       been ruled upon when the notice of appeal was filed, rendering the notice of appeal inoperative.

¶ 16          After defendants filed their response brief, this court, on its own motion, ordered that the

       record on appeal be supplemented instanter. The record was supplemented with two orders from

       the trial court dated March of 2015. The first order reads: “On July 29th, 2014 without objection

       the State was given an additional 30 days to file a motion to reconsider the motion to suppress.

       The motion to reconsider was timely filed by the State. This will supplement the record on

       appeal.” The second order reads: “The states [sic] motion to reconsider the defendants [sic]

       motion to suppress evidence is heard and denied based on the reasons stated on the record

       previously.” This order, which is file-stamped March 26, 2015, is dated “Nunc pro tunc

       8/19/2014.”

¶ 17                                                ANALYSIS

¶ 18                                               I. Jurisdiction

¶ 19          At the outset, we must address defendants’ individual challenges to this court’s

       jurisdiction. First, defendants argue that this court lacks jurisdiction over Smith’s case because

       the State failed to timely file its notice of appeal. This failure, defendants contend, stems from

       the State’s failure to file its motion to reconsider within 30 days. See Ill. S. Ct. R. 606(b) (eff.

       Feb. 6, 2013) (“[N]otice of appeal must be filed *** within 30 days after the entry of the order

       disposing of the motion [directed against the judgment].”). Although the trial court granted the

       State a 30-day extension in which to file its motion to reconsider, defendants argue that this

       extension was not supported by a showing of good cause.

¶ 20          The trial court’s March order describing the extension of time granted to the State

       explicitly notes that the extension was granted without objection from Smith. Accordingly, any


                                                          6
       error in granting the extension now claimed by defendants was not properly preserved in the trial

       court. See Ill. S. Ct. R. 615(a). Because they do not seek review for plain error, defendants have

       forfeited appellate review of the trial court’s order granting an extension of time. See People v.

       McLaurin, 235 Ill. 2d 478, 485 (2009).

¶ 21           Next, defendants argue that this court lacks jurisdiction over Youngman’s case because

       the State’s motion to reconsider—officially file-stamped on August 18, 2014—remained pending

       when the notice of appeal was filed on August 20.

¶ 22           Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013) holds that “any notice of appeal

       filed before the entry of the order disposing of all pending postjudgment motions shall have no

       effect and shall be stricken by the trial court.” Here the notice of appeal was filed on August 20,

       2014. The final appealable order from which the State appealed was the court’s written order

       denying the State’s motion to reconsider dated August 14, 2014. The record makes clear that the

       trial court was in physical possession of the State’s written motion to reconsider in Youngman’s

       case on August 14, 2014, and ruled upon the motion that same day. For unknown reasons,

       however, that motion to reconsider was not file-stamped until four days later on August 18,

       2014.

¶ 23           The court remedied the late file-stamp error by its nunc pro tunc order in March of 2015.

       Pursuant to that order, the court’s ruling on the State’s motion to reconsider was effective as of

       August 19, 2014—after the motion had been file-stamped, but before the State had filed its

       notice of appeal. See Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1055

       (1979) (“A nunc pro tunc order is an entry now for something previously done, made to make

       the record speak now for what was actually done then.”). Because the motion to reconsider was

       resolved prior to the State’s filing of its notice of appeal, Rule 606(b) is inapplicable.


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¶ 24                                         II. Motions to Suppress

¶ 25          Turning to the merits of the case, the State argues that the trial court erred in allowing

       defendants’ motions to suppress. Specifically, the State contends that Officer LaGrange did not

       seize defendants because the entire encounter was consensual. We find that LaGrange’s

       encounter with defendants began as a consensual encounter, and only rose to the level of a

       seizure after LaGrange had formed the reasonable, articulable suspicion required to perform such

       a seizure under the fourth amendment.

¶ 26          “In reviewing a trial court’s ruling on a motion to suppress evidence, we apply the two-

       part standard of review ***.” People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Findings of

       fact made by the trial court are reviewed for clear error, and only reversed if they are against the

       manifest weight of the evidence. Id. However, the ultimate decision of whether or not

       suppression is warranted is a question of law that is reviewed de novo. People v. Harris, 228 Ill.

       2d 222, 230 (2008). “A reviewing court, however, remains free to undertake its own assessment

       of the facts in relation to the issues and may draw its own conclusions when deciding what relief

       should be granted.” Luedemann, 222 Ill. 2d at 542 (citing People v. Pitman, 211 Ill. 2d 502, 512

       (2004)).

¶ 27          The fourth amendment of the United States Constitution and article I, section 6, of the

       Illinois Constitution protect individuals from unreasonable searches and seizures. U.S. Const.,

       amend. IV; Ill. Const. 1970, art. I, § 6. A defendant’s consent to search serves as a valid

       exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

¶ 28          Not every police-citizen encounter results in a seizure. Immigration & Naturalization

       Service v. Delgado, 466 U.S. 210, 215 (1984). “Courts have divided police-citizen encounters

       into three tiers: (1) arrests, which must be supported by probable cause; (2) brief investigative


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       detentions, or ‘Terry stops,’ which must be supported by a reasonable, articulable suspicion of

       criminal activity; and (3) encounters that involve no coercion or detention and thus do not

       implicate fourth amendment interests.” Luedemann, 222 Ill. 2d at 544.

¶ 29          In situations where a person’s freedom of movement is already restrained by some factor

       independent of police conduct, the appropriate inquiry when determining whether that person has

       been seized “ ‘is whether a reasonable person would feel free to decline the officers’ requests or

       otherwise terminate the encounter.’ ” Id. at 550 (quoting Florida v. Bostick, 501 U.S. 429, 436

       (1991)). This is the appropriate inquiry where a police officer approaches a defendant in a

       parked car. People v. Gherna, 203 Ill. 2d 165, 178 (2003); Luedemann, 222 Ill. 2d at 551. “It is

       well settled that a seizure does not occur simply because a law enforcement officer approaches

       an individual and puts questions to that person if he or she is willing to listen.” Luedemann, 222

       Ill. 2d at 551. Even where an officer has no basis for suspecting a particular individual, he or she

       may generally ask questions of them, request their identification, or request consent to search.

       Bostick, 501 U.S. at 434-35.

¶ 30          In United States v. Mendenhall, 446 U.S. 544, 554 (1980), the United States Supreme

       Court listed four factors that may be indicative of seizure: (1) the threatening presence of

       multiple officers; (2) the display of a weapon by an officer; (3) some physical touching of the

       citizen’s person; and (4) the use of language or tone of voice indicating that compliance might be

       compelled. Luedemann, 222 Ill. 2d at 553. The Illinois Supreme Court acknowledged these

       factors in People v. Murray, 137 Ill. 2d 382, 390 (1990). Subsequently, the court has noted that

       the factors are not exhaustive, and that “a seizure can be found on the basis of other coercive

       police behavior that is similar to the Mendenhall factors.” Luedemann, 222 Ill. 2d at 557. “ ‘

       “[I]n the absence of some such evidence, otherwise inoffensive contact between a member of the


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       public and the police cannot, as a matter of law, amount to a seizure of that person.” ’ ”

       (Emphasis in original.) Id. at 553 (quoting Murray, 137 Ill. 2d at 390-91, quoting Mendenhall,

       446 U.S. at 555). “If undisclosed, the officer’s knowledge, suspicion, intent, focus, subjective

       view, or thought of any kind can neither influence the defendant nor affect the coercive

       atmosphere of the interview in any way.” People v. Goyer, 265 Ill. App. 3d 160, 167 (1994).

                         “[A] confrontation with a police officer is not a seizure on the basis

                         that the officer’s authority produces an inherent pressure to

                         cooperate. Rather, as the leading commentator on the fourth

                         amendment has suggested, an encounter between a police officer

                         and a civilian ‘is a seizure only if the officer adds to those inherent

                         pressures by engaging in conduct significantly beyond that

                         accepted in social intercourse.’ ” People v. Castigilia, 394 Ill.

                         App. 3d 355, 358 (2009) (quoting 4 Wayne R. LaFave, Search and

                         Seizure § 9.4(a), at 425 (4th ed. 2004)).

¶ 31           In the present case, defendants concede that, under Luedemann, the encounter between

       LaGrange and defendants was lawful at its inception. LaGrange did not require justification to

       approach the parked car, and the trial court erred as a matter of law in finding that Officer

       LaGrange lacked the required reasonable, articulable suspicion to do so. See Luedemann, 222

       Ill. 2d at 551.

¶ 32           Defendants do, however, dispute the State’s argument that the encounter was consensual

       in its entirety. Defendants contend that Youngman was seized for fourth amendment purposes

       when he was asked to exit his car, or, at the very least, when he was asked to roll up his sleeves.




                                                           10
       Defendants contend that Smith was seized for fourth amendment purposes when Cary requested

       she exit the vehicle.

¶ 33          The record here is devoid of any of the factors listed in Mendenhall as indicative of a

       seizure rather than a consensual encounter. Though LaGrange himself testified that defendants

       were not free to leave because he was conducting an investigation, this sentiment, importantly,

       was never conveyed to defendants. See Goyer, 265 Ill. App. 3d at 167 (officer’s undisclosed

       subjective intent does not affect coercive nature of encounter in any way). The record shows that

       each of LaGrange’s requests of Youngman were, in fact, requests, rather than orders. Indeed,

       though defendants argue that LaGrange “requested consent to search [Youngman’s] person,” the

       evidence showed that the search was performed at Youngman’s suggestion. Specifically,

       LaGrange testified that when he asked Youngman if he had anything illegal on him, Youngman

       said “go ahead and search me.” Though defendants conclude that Youngman did not consent,

       but merely acquiesced to LaGrange’s authority, it cites no objective factors, either from

       Mendenhall or similar to those found in Mendenhall, that could support such a conclusion.

¶ 34          Given the lack of Mendenhall factors in the present case, we find that Youngman’s

       encounter with LaGrange was consensual all the way through LaGrange’s search of Youngman.

       Youngman was not seized for fourth amendment purposes until LaGrange placed him in

       handcuffs. Of course, at that point, having found suspected heroin on Youngman’s person,

       LaGrange had probable cause for Youngman’s arrest.

¶ 35          Defendants assert that Smith was seized for fourth amendment purposes when a second

       officer arrived on the scene and requested that Smith exit the vehicle. Given the presence of

       multiple officers and the clear demonstration of authority exerted over Youngman at that point,




                                                       11
       we agree that Smith was seized when asked to leave her vehicle. However, we find that the

       officers’ actions were supported by reasonable, articulable suspicion.

¶ 36          LaGrange’s suspicions were initially aroused when, in an area known for drug activity,

       he saw a car maneuver abruptly upon the driver seeing him. His suspicion grew when he noticed

       soon thereafter that an occupant had exited the vehicle, then quickly walked away upon noticing

       the officer. LaGrange testified that such behavior is common in drug transactions. When

       LaGrange questioned Youngman, Youngman’s story directly contradicted what LaGrange had

       personally observed. LaGrange’s suspicions were confirmed when he found suspected heroin in

       Youngman’s coat pocket. At that point, Youngman expressly disclaimed ownership of the

       suspected heroin and told LaGrange that Smith “must have put it there.” Given the totality of the

       circumstance here, LaGrange had much more than a “hunch” that Smith was involved in

       criminal activity. See Terry v. Ohio, 392 U.S. 1, 22 (1968) (describing reasonable, articulable

       suspicion necessary to justify an investigatory seizure as “ more substantial than [an] inarticulate

       hunch[]”).

¶ 37          In arguing that LaGrange’s suspicion of Smith did not rise to the Terry standard,

       defendants cite People v. Leggions, 382 Ill. App. 3d 1129, 1131 (2008), for the proposition that

       reasonable suspicion requires more than simply the suspect’s presence in a high-crime

       neighborhood. Defendants’ argument merely serves to highlight the quantity of facts—beyond

       the presence in an area known for drug activity—that supported LaGrange’s suspicion. Of

       course, the most serious factual difference between Leggions and the case at hand is the fact that

       drugs were actually found, then immediately attributed to Smith.

¶ 38                                             CONCLUSION




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¶ 39          For the foregoing reasons, the judgments of the circuit court of Rock Island County in

       case No. 12-CF-42 and case No. 12-CF-43 are reversed and each cause is remanded for further

       proceedings.

¶ 40          Judgments reversed.
¶ 41          Causes remanded.




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