                                No. 2--05--0185                   filed: 11/28/06
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 03--CM--3192
                                       )
LEONARD QUEEN,                         ) Honorable
                                       ) Helen S. Rozenberg,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE O'MALLEY delivered the opinion of the court:

       Defendant, Leonard Queen, appeals the judgment of the circuit court of Lake County denying

his motion to quash his arrest and suppress a switchblade that was found on his person after the police

seized him. We affirm, holding that the seizure that led to the discovery of the switchblade was

justified as an exercise of the community caretaking authority of police.

       Defendant was charged with unlawful use of a weapon (720 ILCS 5/24--1(a)(1) (West 2002))

for possessing the switchblade. In his motion to quash arrest and suppress evidence, defendant

asserted that, at the time he was seized, the police "did not have probable cause, or a reasonable

suspicion based on facts, to believe that [he] had [sic] or was about to commit a crime."

       Mark Fragale, a Lake Villa police officer, was the sole witness at the hearing on defendant's

motion to quash and suppress. Fragale testified that on May 8, 2003, at 2 a.m., he entered an

apartment complex in Lake Villa to drop off the victim of a domestic battery. After dropping off the
No. 2--05--0185


victim, and while driving his squad car on the entrance drive of the complex, Fragale saw defendant

fall out of a tree and land on a grassy area about 20 feet in front of the squad car. Defendant was

holding a beer bottle. He "swayed" as he regained his feet, and he appeared to be "intoxicated."

Fragale testified that defendant did not spill any of the beer as a result of the fall and that he appeared

uninjured. Upon seeing defendant, Fragale activated the spotlight of his squad car and stepped out

of the car.

        Fragale's testimony as to what he did next is ambiguous. At one point, Fragale testified that

he "direct[ed]" defendant to come over to the squad car. At another point, however, he testified that

he "asked" defendant to approach the squad car. Specifically, Fragale testified that he asked

defendant, "Can I talk to you?" At yet another point in his testimony, Fragale testified that he did not

remember whether he asked defendant "Can I talk to you?" before or after he "asked [defendant] to

come over to the car."

        In any case, Fragale testified that, as defendant approached the squad car, he "stumbl[ed] a

bit." Fragale testified that defendant was covered with grass and mud even though the spot where

he had fallen was not muddy. After defendant reached the squad car, Fragale observed that

defendant's speech was slurred, his eyes were red and glassy, and he smelled strongly of an alcoholic

beverage. Fragale asked defendant for his name and identification. Asked why he made these

requests, Fragale testified: "I was trying to find out where [defendant] lived so I could give him a ride

home." Fragale testified that he was concerned that defendant could not safely get home by himself

due to his intoxication. Fragale testified that defendant did not "request" a ride in the squad car but

"agreed" to a ride. As it was departmental policy to "search [passengers] for weapons" before

allowing them in a squad car, even if only for a courtesy escort, Fragale asked defendant if "he had



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anything on his person." In response, defendant turned away from Fragale and reached his hand into

a pocket that was out of Fragale's line of sight. Alarmed by this "furtive movement," Fragale ordered

defendant to show what was in his hand. Defendant opened his hand, displaying a knife that was laid

across the palm. The knife appeared to Fragale to be an ordinary folding knife. The knife was open,

and its blade was about three inches long. Defendant did not make any threatening gestures with the

knife once he revealed it. Fragale then "arrested [defendant] for disorderly conduct due to his level

of intoxication." Upon reaching the police station, Fragale placed the knife in a locked evidence box.

Later, after defendant was released from custody, Fragale examined the knife more closely and

realized it was a switchblade knife. Pursuant to a warrant, Fragale arrested defendant for unlawful

use of a weapon.

       At the conclusion of the testimony, defendant argued that Fragale's interaction was not a

community caretaking encounter because he "order[ed] [defendant] to come to the squad car," shined

his light on defendant, and took defendant's driver's license. Rather, defendant argued, Fragale's

actions effected a "Terry stop" (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868

(1968)) for which there was no justification because "[f]alling out of a tree simply is not a crime."

Defendant further argued that Fragale lacked probable cause to arrest defendant for disorderly

conduct, because a reasonable person would not have been alarmed or disturbed by defendant's

actions. See 720 ILCS 5/26--1(a)(1) (West 2002) ("A person commits disorderly conduct when he

knowingly *** [d]oes any act in such unreasonable manner as to alarm or disturb another and to

provoke a breach of the peace").

       The trial court denied defendant's motion to quash and suppress, reasoning as follows:




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        "The police officer had someone fall in front of him out of a tree with a bottle of beer in his

        hand. He called the defendant over to see if he was all right, asked for identification so that

        he could give him a ride home. That was the undisputed testimony. To say that the officer

        testified credibly is indeed an understatement. And the officer testified further that he didn’t

        intend to arrest the defendant. He intended to give him a ride home. It was only when the

        defendant produced a knife in a gesture that would have entitled a police officer to be alarmed

        and disturbed that an arrest was made."

        Following a bench trial, defendant was convicted of unlawful use of a weapon (720 ILCS

5/24--1(a)(1) (West 2002)). He filed this timely appeal.

        In reviewing a trial court's decision on a motion to suppress, we apply a bifurcated standard

of review. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). We accord great deference to the trial

court's factual findings, and we will reverse those findings only if they are against the manifest weight

of the evidence. Sorenson, 196 Ill. 2d at 431. However, we review de novo the ultimate question

of whether the evidence should be suppressed. Sorenson, 196 Ill. 2d at 431. Although only one

witness, Officer Fragale, testified at the suppression hearing, his testimony admits of divergent

inferences as to whether he asked or ordered defendant to walk over to the squad car after seeing

defendant fall from the tree and as to whether defendant was given a choice of declining a ride home

in the squad car. The resolution of such conflicts falls to the trier of fact. People v. Moore, 365 Ill.

App. 3d 53, 58 (2006). It appears that the trial court resolved the conflicts in favor of defendant and

found that Fragale effected a seizure when he called defendant over to the squad car. We do not

address the trial court's resolution of that conflict but assume for purposes of our review that Fragale




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effected a seizure when he called defendant over to the squad car. We review de novo whether that

seizure was justified.

        Defendant contends that the trial court erred in denying his motion to quash and suppress.

Defendant submits that Officer Fragale effected a stop when (in defendant’s terms) he "activated his

spotlight *** and ordered defendant to walk over to the squad car." Because the encounter was

nonconsensual, defendant reasons, the community caretaking doctrine necessarily was inapplicable.

Defendant further argues that the stop was not justified under Terry because, up to that point, Fragale

had only observed defendant fall from a tree while intoxicated and "being intoxicated is not against

the law." Defendant argues that all subsequent interaction between defendant and Fragale was the

fruit of the invalid Terry stop.

        In response, the State says it "has no dispute with the general propositions of law applicable

to search and seizure presented by defendant." Although the State does not expressly invoke the

community caretaking doctrine, it submits that "defendant’s tumultuous appearance *** justifiably

prompted [Fragale] to stop and check on defendant." The State argues that, upon observing that

defendant was intoxicated, Fragale had cause to arrest him for violating a Lake Villa ordinance

against public intoxication.

        As noted, we assume for purposes of our review that Fragale seized defendant when he called

him over to the squad car and that the detention continued up to and through defendant's arrest. That

detention was, in our view, justified.

        Defendant’s argument on appeal is marred by his flawed conception of community caretaking

encounters. Citing the Third District Appellate Court case of People v. Laake, 348 Ill. App. 3d 346,

349 (2004), defendant states that "[t]he community caretaking exception to the Fourth Amendment



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does not apply if the citizen is detained." This district, in two recent cases, has expressed a different

view of the community caretaking function from that held in Laake. See People v. Luedemann, 357

Ill. App. 3d 411 (2005) (Luedemann I), rev'd on other grounds, No. 100914 (October 5, 2006)

(Luedemann II); People v. Mitchell, 355 Ill. App. 3d 1030 (2005). In Mitchell, the State presupposed

that the community caretaking doctrine was limited to consensual encounters. We rejected that

approach while noting that it has been embraced in several Illinois decisions, including Laake:

                "The State confuses encounters justified by the community caretaker exception with

        consensual encounters. This is not at all surprising, since the same confusion appears in

        numerous Illinois cases. See, e.g., People v. Harris, 207 Ill. 2d 515, 522 (2003); People v.

        Murray, 137 Ill. 2d 382, 387 (1990); People v. Laake, 348 Ill. App. 3d 346, 349 (2004). This

        confusion is unfortunate. As it has developed in other jurisdictions, the community caretaker

        doctrine is a viable, logical exception to the requirements of probable cause and reasonable

        suspicion when the police invade an interest protected by the fourth amendment. It has

        nothing to do with consensual encounters; for, by their very nature, consensual encounters

        need no justification. Treating it as synonymous with consensual encounters deprives the

        doctrine of any analytic content." Mitchell, 355 Ill. App. 3d at 1033.

In Luedemann I, we said: "[T]he community caretaking exception allows an actual seizure where the

seizure is reasonable under certain circumstances." Luedemann I, 357 Ill. App. at 419. In

Luedemann II, which was issued after the briefs in this case were filed, our supreme court agreed that

the community caretaking doctrine may be invoked "to uphold searches or seizures as reasonable

under the fourth amendment when police are performing some function other than investigating the

violation of a criminal statute." Luedemann II, slip op. at 12.



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       In neither Mitchell nor Luedemann I did we have occasion to apply the community caretaking

doctrine as we defined it to the facts then before us. In Mitchell, we held that the State waived its

argument under the community caretaking doctrine, but we nonetheless elected to correct the State's

misconception of the doctrine. See Mitchell, 355 Ill. App. 3d at 1035-36. In Luedemann I, we

considered the State's invocation of the doctrine "both improper and unnecessary." Luedemann I,

357 Ill. App. 3d at 420. Similarly, in Luedemann II, the supreme court clarified the proper nature of

community caretaking encounters, yet the case did not require the court to apply that understanding

to the facts before it. We now do what there was no occasion to do in Mitchell, Luedemann I, and

Luedemann II, that is, hold that the detention of an individual by the police was justified as an

exercise in community caretaking.

       The legal principle we embrace today is a simple extension of existing cases recognizing the

legitimacy of searches and seizures based on community caretaking or public safety considerations.

The United States Supreme Court's decision in Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed.

2d 706, 714-15, 93 S. Ct. 2523, 2528 (1973), is often cited as the originator of the community

caretaking or public safety doctrine. In Cady, the defendant's car was towed to a private lot after a

car accident. Because the police reasonably believed that the car contained a gun that might be taken

by vandals while the car sat unattended in the lot, the Supreme Court held that a search of the car for

"the protection of the public" was permissible. Cady, 413 U.S. at 447, 37 L. Ed. 2d at 718, 93 S. Ct.

at 2531. The Court explained:

               "Because of the extensive regulation of motor vehicles and traffic, and also because

       of the frequency with which a vehicle can become disabled or involved in an accident on

       public highways, the extent of police-citizen contact involving automobiles will be



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       substantially greater than police-citizen contact in a home or office. Some such contacts will

       occur because the officer may believe the operator has violated a criminal statute, but many

       more will not be of that nature. Local police officers, unlike federal officers, frequently

       investigate vehicle accidents in which there is no claim of criminal liability and engage in what,

       for want of a better term, may be described as community caretaking functions, totally

       divorced from the detection, investigation, or acquisition of evidence relating to the violation

       of a criminal statute." Cady, 413 U.S. at 441, 37 L. Ed. 2d at 714-15, 93 S. Ct. at 2528.

       In People v. Ocon, 221 Ill. App. 3d 311, 316 (1991), this district upheld the inventory search

of a vehicle impounded after the defendant's arrest for driving without a license. We said:

               "The inventory of the contents of cars taken into police custody fulfills the community

       caretaking function of the police. [Citation.] Thus, inventory searches are a well-established

       exception to the warrant requirements of the fourth amendment. [Citation.] Probable cause,

       which is peculiar to criminal investigations, is unrelated and of no help in the reasonableness

       analysis required under the fourth amendment for routine administrative caretaking functions

       such as inventory searches. [Citation.] Rather, the reasonableness of such procedures arises

       from three legitimate objectives of inventory searches: to ascertain the extent and value of

       property needing protection while in police custody; to protect the police against claims or

       disputes over lost or stolen property; and to protect the police from potential danger

       emanating from items of personal property such as drugs or guns that may be found within

       a car. [Citations.]" Ocon, 221 Ill. App. 3d at 314-15.

       More factually similar to the present case is our recent decision in People v. Smith, 346 Ill.

App. 3d 146 (2004), aff'd, 214 Ill. 2d 338 (2005). In Smith, we cited Cady in applying community



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caretaking/public safety principles to uphold the "suspicionless seizure of a person." Smith, 346 Ill.

App. 3d at 161. The defendant in Smith was one of three passengers in a car that police stopped for

traffic offenses on an interstate highway. Following the driver's arrest for driving under the influence

of alcohol, the officers determined that none of the passengers was able to drive the vehicle from the

scene, because the defendant and one other passenger were intoxicated and the third passenger had

a suspended driver's license. The officers gave the defendant and his companions the option of using

their cellular telephone to arrange for transportation. When the three were unsuccessful in making

such arrangements, the officers offered them the option of a courtesy ride to the police station, but

did not offer them the option of leaving the scene on foot. The defendant and the others agreed to

the proposal. Before letting them into the squad car, however, the officers performed pat-down

searches of them pursuant to departmental policy requiring that officers search individuals for

weapons prior to transporting them in a police vehicle. A handgun was found on the defendant's

person, and he was arrested. Smith, 346 Ill. App. 3d at 149-51.

        We reversed the trial court's decision granting the defendant's motion to suppress the handgun

as the fruit of an illegal detention. We agreed with the defendant that, when he and his companions

were unsuccessful in arranging for their own transportation, the officers effected a detention by

"prohibiting defendant and his companions from driving the vehicle in which they arrived and by ***

not offering defendant the option of departing on foot." Smith, 346 Ill. App. 3d at 157. We

identified the central issue as whether that detention was illegal and therefore vitiated the defendant's

consent to the courtesy ride and pat-down search. We held that the detention was lawful on two

independent grounds. First, "the police officers were justified in detaining defendant based on a

reasonable suspicion that criminal activity was about to occur," because it would have been illegal



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under our state statutes for the defendant to walk on the interstate while intoxicated. Smith, 346 Ill.

App. 3d at 159. Second, the seizure was lawful as a reasonable extension of the principles laid down

in Cady. Although Cady dealt with a search of a vehicle, not the detention or search of a person, we

held that its rationale "justifying police action in an emergency that would otherwise be prohibited

by the fourth amendment is equally applicable here." Smith, 346 Ill. App. 3d at 161. We said:

       "In this case, defendant was in need of emergency aid because he found himself on the side

       of a high-speed tollway at night without a lawful means of reaching safety while in the

       vulnerable position of being impaired due to his consumption of alcohol. *** Where, as here,

       police action is not motivated by crime detection or investigation but, rather, by an intent to

       render aid in an emergency situation, a suspicionless seizure of a person in furtherance of that

       goal does not violate the fourth amendment. Accordingly, we believe that the officers' actions

       in this case, that is, prohibiting defendant from walking from the scene and providing him with

       a courtesy ride when all other options for defendant's safe and lawful departure from the

       roadside were exhausted, amounted to a lawful seizure consistent with the officers' duty to

       render aid to defendant." Smith, 346 Ill. App. 3d at 161-62.

       We also held that, irrespective of the defendant's consent, the officers' decision to transport

him and the others in the squad car was lawful based on exigent circumstances. The officers, we

explained, "had a duty to remove defendant and [his companions] from the roadside after all apparent

lawful means of leaving the roadside had been exhausted." Smith, 346 Ill. App. 3d at 164. We noted

that, "had the officers left these men standing on the roadside, they would have created a situation

that was undeniably dangerous to them and to motorists using the tollway." Smith, 346 Ill. App. 3d

at 164. We upheld the pat-down searches as well, on the basis that "the need to transport a person



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in a police vehicle is an exigency that justifies a pat-down search for weapons." Smith, 346 Ill. App.

3d at 166.

       The principles annunciated in Cady, Ocon, and Smith apply in the present case. The parties

agree that Fragale effected a stop when he "directed" defendant over to the squad car. The State,

arguing for a community caretaking rationale in substance if not in name, asserts that defendant's

bizarre and potentially injurious entry onto the scene gave Fragale warrant to "stop and check on"

him. Defendant, operating under the erroneous notion that all seizures must be justified by an

objective suspicion of criminal activity, does not challenge the State's position nor could he credibly

do so. Defendant had just fallen out of a tree. Although Fragale quickly surmised that defendant was

not injured by the fall, Fragale suspected that defendant was intoxicated, based on his unsteady

movements. Fragale was justified in having defendant approach and identify himself. When

defendant approached, his appearance and demeanor confirmed Fragale's belief that he was

intoxicated. Fragale believed that defendant was in need of a courtesy ride in the squad car because

he could not proceed safely in his condition without assistance. Fragale's concern was well-founded.

Defendant's unexplained bout of tree climbing suggested that he might be capable of further erratic

behavior that could endanger himself or others. He was covered in mud that apparently came from

some prior escapade.

       In these circumstances, defendant's consent to the courtesy ride was as immaterial as the

defendant's consent in Smith. Defendant, intoxicated and given to bizarre behavior, was in as

vulnerable a position as the defendant in Smith. For Fragale to leave defendant to proceed by himself

would have created a situation "undeniably dangerous" to him. Smith, 346 Ill. App. 3d at 164.

Fragale had a duty to insure that defendant did not proceed alone.



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         Fragale, we recognize, did not offer defendant any option other than to ride in the squad car.

This omission did not invalidate Fragale's actions as an exercise in community caretaking. We

acknowledge that, in holding that the officers in Smith were justified in removing the defendant from

the roadside regardless of his consent, we said: "Under these circumstances, once all other legal

options for the removal of defendant from the roadside were exhausted, the officers' duty to safely

do so arose." Smith, 346 Ill. App. 3d at 166. The import of this remark is that the existence of

means short of a seizure for delivering an individual from danger is an important consideration in

determining whether there is an exigency that would justify police action in the first instance. The

remark should not be construed as a mandate that a peace officer who encounters an individual in an

exigent situation must conceive and explore all means short of a seizure for bringing the individual

to safety. The overarching criterion for searches and seizures is reasonableness. Luedemann I, 357

Ill. App. 3d at 419. Defendant does not identify for us what other avenues Fragale should have

explored. If defendant had suggested to Fragale an alternative for proceeding safely that would not

have unduly delayed Fragale or otherwise sapped law enforcement resources, perhaps Fragale would

have had some duty to pursue it. As it stood, however, defendant was not forthcoming with any

alternatives to delivering himself from the potentially hazardous situation that apparently was his own

doing.

         Fragale, therefore, was justified in taking defendant in the squad car irrespective of defendant's

consent and Fragale's failure to explore whether there were any possible alternative means of getting

defendant to safety. Fragale was further justified in performing a pat-down search of defendant for

safety purposes before transporting him in the squad car. See Smith, 346 Ill. App. 3d at 166 (holding

that "the need to transport a person in a police vehicle is an exigency that justifies a pat-down search



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for weapons"). When Fragale asked defendant if he "had anything on him," he furtively turned his

body away from Fragale and fumbled in a pocket that was out of Fragale's line of vision. After

discovering that defendant was holding a knife, Fragale arrested him for disorderly conduct "due to

his level of intoxication." Defendant submits that "being intoxicated is not against the law."

However, in determining whether there was probable cause to arrest defendant, we are not limited

by what Fragale subjectively believed were grounds for the arrest. See People v. Gray, 305 Ill. App.

3d 835, 839 (1999) (in determining probable cause for arrest, "[a]n objective test applies" and "[t]he

subjective intentions or beliefs of the officer are not dispositive"); 4 W. LaFave, Search & Seizure

§9.5(a), at 473 (4th ed. 2004) ("the objective grounds as to one offense are not defeated because the

officer either thought or stated that he was acting with regard to some other offense or on some other

basis entirely"). There was an alternative basis for arresting defendant for disorderly conduct. "A

person commits disorderly conduct when he knowingly *** [d]oes any act in such unreasonable

manner as to alarm or disturb another and to provoke a breach of the peace" (720 ILCS 5/26--1(a)(1)

(West 2002)). "What is reasonable *** depends upon the facts and circumstances of the particular

case." People v. Davis, 79 Ill. App. 3d 784, 786 (1979), rev'd on other grounds, 82 Ill. 2d 534

(1980). Fragale testified that he was alarmed by defendant's furtive movements in response to his

question. Defendant's conduct, moreover, was unreasonable under the circumstances. Rather than

answer Fragale's query, defendant made suspicious and possibly threatening motions, needlessly

creating tension. That tension was immediately heightened by Fragale's discovery that defendant had

been concealing a knife in his hand. We conclude that Fragale had probable cause to arrest defendant

for disorderly conduct based on his reaction to Fragale's query.




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       For the foregoing reasons, we affirm the judgment of the circuit court of Lake County denying

defendant's motion to quash and suppress.

       Affirmed.

       BOWMAN and KAPALA, JJ., concur.




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