                                2013 IL 111835

                             IN THE
                        SUPREME COURT
                               OF
                      THE STATE OF ILLINOIS


                    (Docket No. 111835)
     THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                MICHAEL COLYAR, Appellee.

                         Opinion filed April 18, 2013.

        CHIEF JUSTICE KILBRIDE delivered the judgment of the court,
     with opinion.
        Justices Garman, Karmeier, and Theis concurred in the judgment
     and opinion.
        Justice Thomas specially concurred, with opinion.
        Justice Burke dissented, with opinion, joined by Justice Freeman,
     and dissented upon denial of rehearing, with opinion.



                                   OPINION

¶1        The issue in this appeal is whether police officers violated
     defendant’s constitutional right to be free from unreasonable searches
     and seizures (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6). The
     contested conduct arose during an incident that both parties agree was
     initiated as a proper Terry stop. After police officers observed a bullet
     in plain view in the center console of the vehicle, the officers ordered
     defendant and his two passengers out of the vehicle, handcuffed and
     searched them, and then, after recovering additional bullets from
     defendant’s person and the vehicle, recovered a handgun from the
     passenger side floor of the vehicle.
¶2        The circuit court of Cook County granted defendant’s motion to
     suppress all of the recovered evidence. A majority of the appellate
     court affirmed, concluding that the challenged police conduct
     subjected defendant to an unlawful search without probable cause
     because the bullet did not establish evidence of a crime. 407 Ill. App.
     3d 294, 310. For the reasons that follow, we reverse the judgments of
     the appellate and circuit courts.

¶3                              I. BACKGROUND
¶4       Defendant was charged with multiple weapons charges after
     police officers recovered bullets and a handgun from his person and
     vehicle. Defendant filed a pretrial motion to quash arrest and suppress
     evidence, arguing that the underlying search was unreasonable and
     that he was subjected to an unlawful arrest without probable cause.
¶5       At the suppression hearing, Homewood police officer William
     Alcott testified that on the evening of June 29, 2006, he was working
     the tactical unit for a suburban task force in an unmarked squad car
     with his partner, Detective Johnson. The officers wore plain clothes,
     a police badge, a name tag, and a vest with the word “police” across
     the back.
¶6       At approximately 8:45 p.m., Officer Alcott arrived at a motel the
     officers routinely patrolled to check for “parties and stuff of that
     nature” involving minors. The officers, however, had not received
     any calls of suspicious activity or reports of criminal activity that day.
     When the officers arrived at the motel, defendant’s vehicle was
     parked in the south entrance to the motel’s parking lot, between 50
     and 100 feet from the motel’s main building entrance. Because of the
     location of defendant’s vehicle, Officer Alcott drove around the motel
     building to the west parking lot entrance and stopped, observing
     defendant’s vehicle for two or three minutes. During this time,
     defendant’s vehicle remained in the entrance.
¶7       Officer Alcott parked his squad car in the parking lot, but he did
     not block defendant’s vehicle. The officers then exited their squad car
     and walked toward defendant’s vehicle to ask defendant why he was
     parked in the entrance. During their approach, the officers did not
     draw their service weapons. Officer Alcott described the lighting
     conditions at the time as “dusk” but “not dark.” Defendant sat in the
     driver’s seat, with the car’s engine running, and there was also a
     passenger in his car. As the officers approached defendant’s vehicle,
     a third individual exited the motel, walked to defendant’s vehicle, and
     got inside the rear passenger compartment.


                                        -2-
¶8         Officer Alcott approached the driver side, and Detective Johnson
       went to the passenger side. When Officer Alcott asked defendant why
       he was blocking the entrance, defendant replied that he was picking
       someone up from the motel. During this conversation, Detective
       Johnson motioned to Officer Alcott and advised him of a plastic bag
       in the center console. Officer Alcott shined his flashlight into the
       center console and saw in plain view a plastic bag with a bullet
       “sticking up” inside. Officer Alcott described the bullet as “the largest
       pistol round” he had ever seen, approximately three inches long.
       Officer Alcott further described the bullet as being as large as a rifle
       round.
¶9         After Officer Alcott saw the bullet, he ordered defendant and his
       two passengers out of the car. The officers handcuffed defendant and
       the two passengers near the front of the vehicle. Officer Alcott
       recovered the plastic bag from the center console, and discovered that
       it contained a total of five live rounds of .454-caliber ammunition.
¶ 10       After recovering the five bullets from the bag in defendant’s
       center console, the officers conducted a pat-down search of defendant
       and his two occupants. Officer Alcott recovered a single bullet from
       defendant’s front pants pocket that matched the five .454-caliber
       bullets recovered from the plastic bag in the center console. Based on
       the recovery of the five bullets from the center console and one bullet
       from defendant’s pocket, Officer Alcott believed that there might be
       a gun inside defendant’s vehicle. Ultimately, Detective Johnson found
       a .454 revolver under a floor mat on the front passenger side.
       Subsequently, defendant and his two passengers were transported to
       the police station.
¶ 11       Following Officer Alcott’s testimony, and prior to ruling on
       defendant’s motion to suppress, the circuit court heard arguments
       from the parties on two separate days. Defendant argued that the
       police officers lacked probable cause for any of their conduct because
       possession of a bullet is not per se illegal and the police officers
       failed to ask defendant whether he possessed a valid Firearm Owner’s
       Identification (FOID) card. Consequently, because the officers did not
       know whether defendant possessed the bullet legally, defendant
       asserted that the officers subjected him to an unlawful arrest without
       probable cause when they ordered him out of the car and handcuffed
       him. Defendant noted that no criminal activity had been reported in
       the area at the time of the incident and no evidence suggested that he
       was engaged in criminal activity.


                                         -3-
¶ 12        In response, the State argued that the officers did not subject
       defendant to an illegal seizure or arrest. Instead, the officers acted
       appropriately when they approached defendant’s vehicle to ascertain
       why it was blocking the motel’s parking lot entrance. When the
       officers saw the bullet in the center console, they were entitled to
       order defendant and his two passengers out of the car for their own
       safety. Similarly, when they recovered the multiple bullets from the
       center console and the bullet from defendant’s pants pocket, the
       officers properly searched the car and recovered the handgun.
¶ 13        After hearing arguments, the trial court denied defendant’s motion
       to suppress the bullets, but granted his motion to suppress the gun.
       The court found that, pursuant to Terry, the officers properly
       recovered the bullets, including the bullet recovered from defendant’s
       pants when he was handcuffed. The court further found, however,
       that the recovery of the gun was illegal because the officers did not
       have probable cause to believe that defendant was committing a crime
       when the possession of a bullet is not per se illegal and the officers
       failed to asked defendant if he possessed a valid FOID card. The court
       explained that it “presum[ed] the State’s theory is search incident to
       arrest that allowed them to conduct” the search of the vehicle.
¶ 14        Defendant moved orally to reconsider the trial court’s ruling
       admitting the bullets. Defendant again asserted that possession of a
       bullet is not per se illegal and, therefore, the officers in this case
       arrested him unlawfully when they ordered him out of the car and
       handcuffed him based solely on the plain-view bullet without first
       finding out if defendant possessed a valid FOID card or had
       previously been convicted of a felony. The State responded that the
       trial court’s ruling admitting the bullets recovered from the center
       console and defendant’s person was proper under Terry.
¶ 15        Following arguments on defendant’s oral motion to reconsider,
       the circuit court granted his motion to reconsider and ordered that all
       the bullets be suppressed because the officers failed to ask defendant
       whether he possessed a valid FOID card before they ordered him out
       of the car and searched him and the vehicle. Thus, the court ordered
       that all of the recovered evidence, the bullets and the gun, be
       suppressed.
¶ 16        In addition, the circuit court continued the State’s written motion
       to reconsider its ruling suppressing the gun. In pertinent part, the
       State argued that the officers’ discovery of the bullets created
       justifiable concern for their safety because the bullets could

                                         -4-
       reasonably indicate the presence of a gun, citing Michigan v. Long,
       463 U.S. 1032 (1983). Ultimately, however, the State filed a
       certificate of substantial impairment and notice of appeal under
       Supreme Court Rule 604(a)(1) (eff. July 1, 2006) before the circuit
       court could rule on the State’s motion to reconsider.
¶ 17       On appeal, a majority of the appellate court affirmed the circuit
       court’s order suppressing all of the evidence. Before reaching the
       merits of the suppression order, the majority construed the State’s
       position on appeal as being that the officers had probable cause to
       believe a crime had been committed when they saw the bullet in plain
       view in the center console of defendant’s car, justifying a search
       incident to his arrest. Thus, the majority limited its analysis to
       whether the State had probable cause. 407 Ill. App. 3d at 297-300.
¶ 18       In a footnote, however, the majority acknowledged that the State’s
       citation to Long in the motion to reconsider filed in the circuit court
       might indicate that the State intended to argue that the search was
       justified based on reasonable suspicion under Terry, rather than on
       probable cause. Nonetheless, the majority found that the State
       forfeited its Terry argument on reasonable suspicion when it filed a
       notice of appeal before the circuit court could rule on the State’s
       motion to reconsider. The majority reasoned that a party is prohibited
       from advancing “a new theory” on appeal in an effort to overturn an
       adverse decision. 407 Ill. App. 3d at 297 n.3.
¶ 19       On the merits, the majority affirmed the suppression of all the
       bullets and the handgun based on a lack of probable cause.
       Specifically, the majority explained its conclusion that probable cause
       was lacking as follows:
                “While the officers engaged in a lawful Terry stop, the
                recovery of the bullets did not provide evidence of a crime in
                the absence of evidence that the defendant did not possess a
                valid FOID card or was a convicted felon. The officers
                improperly escalated the investigative stop into a full-blown
                arrest of the defendant and then engaged in the search of the
                vehicle as incident to the arrest.” 407 Ill. App. 3d at 310.
¶ 20       The dissenting justice disagreed with the majority’s decision to
       limit the State’s position to probable cause for a search incident to
       arrest, noting that the State raised the Terry-stop rationale during the
       hearing on defendant’s motion to suppress in the circuit court. Thus,
       the dissenting justice argued that the case should be reviewed as a
       brief investigative Terry stop.

                                         -5-
¶ 21       Specifically, the dissenting justice believed the case was governed
       by the United States Supreme Court’s holding in Long, permitting
       police officers to search the passenger compartment of a car when no
       arrest has been made if they reasonably believed that the suspect is
       dangerous and may gain immediate control of weapons. Relying on
       Long, the dissenting justice concluded that “the arresting officers,
       upon observing the plain-view bullet in the car, had reasonable
       suspicion to stop defendant and conduct protective searches for
       weapons on defendant’s person and in the passenger compartment of
       his car. Then, the revolver found under the front-passenger floor mat
       gave the police probable cause to arrest defendant.” Accordingly, the
       dissenting justice argued that the circuit court’s suppression order
       should be reversed. 407 Ill. App. 3d at 311-15 (Lampkin, J.,
       dissenting).
¶ 22       This court allowed the State’s petition for leave to appeal. Ill. S.
       Ct. R. 315 (eff. Feb. 26, 2010).

¶ 23                                II. ANALYSIS
¶ 24        On appeal, the State challenges the appellate court majority’s
       affirmance of the circuit court’s order suppressing the recovered
       bullets and handgun. This court reviews a trial court’s order
       suppressing evidence using a two-part standard. People v. Oliver, 236
       Ill. 2d 448, 454 (2010). We afford great deference to the trial court’s
       factual findings, and will reverse those findings only if they are
       against the manifest weight of the evidence. Oliver, 236 Ill. 2d at 454.
       We review de novo, however, the trial court’s ultimate legal ruling on
       whether suppression is warranted. Oliver, 236 Ill. 2d at 454.
¶ 25        As a preliminary matter, we address the appellate court majority’s
       decision not to consider the State’s argument that the police officers’
       conduct here constituted a lawful Terry stop based on reasonable
       suspicion. The majority believed the State was improperly attempting
       to assert a “new theory” on appeal, and limited its consideration
       solely to whether the officers’ conduct was proper as a search incident
       to arrest. Essentially, the majority concluded that the State forfeited
       any argument based on Terry.
¶ 26        The State maintains that the majority erroneously concluded that
       it forfeited a Terry argument because, as the dissenting justice noted,
       the record demonstrates that the State argued Terry, including an
       argument that the searches were justified for officer safety, at the


                                         -6-
       hearings on defendant’s motion to suppress. Defendant does not
       respond to the State’s forfeiture argument.
¶ 27       Generally, to preserve an issue for appellate review, a party must
       raise the issue before the trial court and in a posttrial motion. People
       v. Enoch, 122 Ill. 2d 176, 186 (1988). Here, the record demonstrates
       that the State consistently argued in the pretrial suppression hearings
       before the circuit court that the officers’ conduct was reasonable and
       proper under Terry. Notably, the circuit court itself found some of the
       officers’ conduct proper under Terry. Moreover, in the State’s
       posttrial motion to reconsider, the State relied on Long, a decision
       applying Terry, and argued that the officers’ conduct was proper
       because they were concerned for their safety and reasonably
       suspected a gun was present after recovering the bullets. Based on
       this record, we necessarily reject the appellate court majority’s
       conclusion that the State forfeited any argument based on Terry.
¶ 28       We now turn to the parties’ substantive arguments on whether the
       officers’ conduct here violated defendant’s constitutional right to be
       free from unreasonable searches and seizures. The State argues that,
       under the totality of the facts and circumstances, what began as a
       neutral encounter escalated when the officers observed the bullet in
       plain view in the center console of defendant’s vehicle. Reasonably
       suspecting that defendant or his passengers were armed and presently
       dangerous and that criminal activity may be afoot, the officers were
       permitted under Terry and Long to detain defendant and his
       passengers and perform protective searches of their persons and areas
       of the car that would provide immediate access to a weapon.
       Consequently, the State argues that the circuit court’s suppression
       order should be reversed.
¶ 29       Defendant responds that Terry does not justify the officers’
       conduct because the circumstances were “absolutely benign” and
       possession of a bullet is not per se illegal. Thus, defendant argues that
       Officer Alcott and Detective Johnson could not reasonably believe a
       crime was being committed, particularly when they failed to ask him
       whether he possessed a valid FOID card. Defendant also notes that at
       the time of the incident it was dusk, but not yet dark, no suspicious or
       criminal activity had been reported in the area, and, besides the police
       officer’s vehicle, no other vehicle was inconvenienced by defendant’s
       vehicle parked in the motel parking lot entrance.
¶ 30       Defendant does not challenge the officers’ initial approach and
       interaction with defendant at his vehicle. Instead, defendant asserts

                                         -7-
       that “[t]he unlawful seizure occurred after Officer Alcott brought the
       defendant and the other individuals to the front of the vehicle,
       handcuffed them[,] then recovered the bullets from the console and
       searched the defendant and recovered another bullet.” Defendant
       further asserts that handcuffing him and his two passengers “may very
       well have turned this benign encounter into an arrest, therefore
       requiring probable cause to search the vehicle.” Thus, defendant
       argues that the lower courts properly suppressed all of the recovered
       evidence because the officers’ conduct was not justified by probable
       cause.
¶ 31        Both the fourth amendment and the Illinois Constitution of 1970
       guarantee the right of individuals to be free from unreasonable
       searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art.
       I, § 6. This court has explained that “[t]he ‘essential purpose’ of the
       fourth amendment is to impose a standard of reasonableness upon the
       exercise of discretion by law enforcement officers to safeguard the
       privacy and security of individuals against arbitrary invasions.”
       People v. McDonough, 239 Ill. 2d 260, 266 (2010) (quoting Delaware
       v. Prouse, 440 U.S. 648, 653-54 (1979)).
¶ 32        As the parties’ respective arguments demonstrate, central to this
       appeal is the United States Supreme Court’s landmark decision in
       Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Court held that a brief
       investigatory stop, even in the absence of probable cause, is
       reasonable and lawful under the fourth amendment when a totality of
       the circumstances reasonably lead the officer to conclude that
       criminal activity may be afoot and the subject is armed and
       dangerous. Terry, 392 U.S. at 30; see also People v. Close, 238 Ill. 2d
       497, 505-06 (2010) (recognizing that this court follows Terry and
       adheres to its standards when reviewing the propriety of investigatory
       stops under the Illinois Constitution).
¶ 33        Explaining its decision to approve of investigatory stops based
       solely on reasonable suspicion, the Terry court noted that it carefully
       had to balance the need of law enforcement officials to have some
       flexibility when investigating potential criminal activity with an
       individual citizen’s fourth amendment rights to be protected against
       unreasonable police interference. Terry, 392 U.S. at 10-12.
       Reviewing the government interests at stake, the Court observed that
       the government has a general interest in effective crime prevention
       and detection. This general interest justifies “the recognition that a
       police officer may in appropriate circumstances and in an appropriate


                                        -8-
       manner approach a person for purposes of investigating possibly
       criminal behavior even though there is no probable cause to make an
       arrest.” Terry, 392 U.S. at 22.
¶ 34       The Court further explained, however, that the “crux” of Terry
       was another, “more immediate” government interest. Terry, 392 U.S.
       at 23. Specifically, the interest in allowing a police officer to “tak[e]
       steps to assure himself that the person with whom he is dealing is not
       armed with a weapon that could unexpectedly and fatally be used
       against him.” Terry, 392 U.S. at 23. Because of the indisputable
       threat posed to law enforcement officials during the course of
       investigatory stops, the Court concluded:
               “[W]e cannot blind ourselves to the need for law enforcement
               officers to protect themselves and other prospective victims
               of violence in situations where they may lack probable cause
               for an arrest. When an officer is justified in believing that the
               individual whose suspicious behavior he is investigating at
               close range is armed and presently dangerous to the officer or
               to others, it would appear to be clearly unreasonable to deny
               the officer the power to take necessary measures to determine
               whether the person is in fact carrying a weapon and to
               neutralize the threat of physical harm.” Terry, 392 U.S. at 24.
¶ 35       While recognizing that a police officer’s need to protect himself
       from danger was important, the government’s interest had to be
       balanced with the fourth amendment rights of an individual citizen to
       be free from unreasonable searches and seizures. In the Court’s view,
       the proper balance was to afford law enforcement officials “a
       narrowly drawn authority” to permit a reasonable search for weapons
       when the officer has reason to believe that the subject of his
       investigation is armed and dangerous. Terry, 392 U.S. at 27.
¶ 36       The Terry Court admonished, however, that “[t]he officer need
       not be absolutely certain that the individual is armed; the issue is
       whether a reasonably prudent man in the circumstances would be
       warranted in the belief that his safety or that of others was in danger.”
       When reviewing the reasonableness of an officer’s conduct, it is
       appropriate to give due weight to “the specific reasonable inferences
       which [the officer] is entitled to draw from the facts in light of his
       experience.” Terry, 392 U.S. at 27.
¶ 37       Ultimately, the Terry Court held that when a police officer
       observes unusual conduct that reasonably leads him to conclude
       criminal activity may be afoot and the individual he is dealing with

                                         -9-
       is armed and presently dangerous, the officer is permitted to stop the
       individual and make reasonable inquiries. If, however, “nothing in the
       initial stages of the encounter serves to dispel [the officer’s]
       reasonable fear for his own or others’ safety, he is entitled for the
       protection of himself and others in the area to conduct a carefully
       limited search of the outer clothing of such persons in an attempt to
       discover weapons which might be used to assault him.” The Court
       also indicated that courts reviewing the propriety of these types of
       investigatory stops must decide each case on its own unique facts.
       Terry, 392 U.S. at 30-31.
¶ 38        Relevant to the issues here, the United States Supreme Court has
       extended Terry to permit a protective search of a passenger
       compartment of a vehicle during an investigatory stop. Michigan v.
       Long, 463 U.S. 1032 (1983); see also Arizona v. Gant, 556 U.S. 332,
       352 (2009) (Scalia, J., concurring) (noting that “the rule of Michigan
       v. Long is not at issue here”). Explaining its decision, the Long Court
       noted that roadside encounters are “especially hazardous,” and a
       police officer may reasonably believe that he is in danger from the
       possible presence of accessible weapons inside the vehicle. Long, 463
       U.S. at 1049.
¶ 39        Under Long, the investigative search of the passenger
       compartment should be limited to the area where a weapon may be
       located or hidden. The search is permissible only when the officers
       possess a reasonable belief, based on specific and articulable facts
       and reasonable inferences from those facts, that the individual was
       dangerous and could gain control of a weapon. As in Terry, “ ‘[t]he
       issue is whether a reasonably prudent man in the circumstances would
       be warranted in the belief that his safety or that of others was in
       danger.’ ” Long, 463 U.S. at 1050 (quoting Terry, 392 U.S. at 27).
¶ 40        This court follows Terry and its rationale, and has concluded that
       a Terry-type stop must be justified at its inception, and the “ ‘police
       officer must be able to point to specific and articulable facts which,
       taken together with rational inferences from those facts, reasonably
       warrant that intrusion.’ ” Close, 238 Ill. 2d at 505 (quoting Terry, 392
       U.S. at 21). Although the police officer’s level of suspicion need not
       rise to the level of probable cause, it must be more than an
       inarticulate hunch. Close, 238 Ill. 2d at 505. When reviewing the
       officer’s action, we apply an objective standard to decide whether the
       facts available to the officer at the time of the incident would lead an



                                        -10-
       individual of reasonable caution to believe that the action was
       appropriate. Close, 238 Ill. 2d at 505.
¶ 41       With these principles in mind, we consider the circumstances
       presented in this case. The parties agree that the officers’ initial
       approach and their questioning of defendant in his vehicle was lawful.
       Defendant conceded at oral arguments that his initial encounter with
       the officers, before he was ordered out of his car and handcuffed, was
       lawful under Terry. Similarly, the appellate court here agreed that
       defendant’s initial encounter with police was proper under Terry.
       Thus, we must decide whether Terry justifies the officers’ subsequent
       decision, after seeing the bullet in plain view in the center console, to
       order defendant and his passengers out of the car, handcuff them,
       search their persons, and then ultimately search defendant’s car and
       recover the handgun.
¶ 42       Here, the record demonstrates that Officer Alcott and Detective
       Johnson were in a vulnerable situation when they observed the bullet.
       It was dusk and the officers were on foot in a parking lot away from
       their vehicle. The two officers, who had not drawn their weapons,
       were also outnumbered by defendant and his two passengers, who
       were in a running car. Finally, the officers had only a brief exchange
       with defendant prior to their observation of the plain-view bullet. In
       other words, the officers were forced to make a quick decision based
       on limited information after seeing the bullet.
¶ 43       Reviewing the actions of Officer Alcott and Detective Johnson
       under an objective standard, we believe that a reasonably cautious
       individual in a similar situation could reasonably suspect the presence
       of a gun, thus implicating officer safety, based on the bullet clearly
       visible in defendant’s center console. Common sense and logic
       dictate that a bullet is often associated with a gun. Indeed, our
       appellate court has recognized that a bullet observed inside a vehicle
       may reasonably indicate the presence of a gun inside that vehicle.
       People v. Stack, 244 Ill. App. 3d 393, 397 (1993); see also People v.
       Reincke, 84 Ill. App. 3d 222, 225 (1980) (reasonable to infer a gun
       was present inside a car after observing in plain view open boxes of
       ammunition).
¶ 44       Certainly, based on the presence of a bullet and a reasonable
       inference that a gun may be present in the vehicle, it was reasonable
       for Officer Alcott and Detective Johnson to suspect that their safety
       was in danger. As Terry instructs, “[t]he officer need not be
       absolutely certain that the individual is armed; the issue is whether a

                                         -11-
       reasonably prudent man in the circumstances would be warranted in
       the belief that his safety or that of others was in danger.” Terry, 392
       U.S. at 27. Based on the circumstances of this case, we believe that
       question must be answered affirmatively.
¶ 45        Similarly, because Officer Alcott and Detective Johnson could
       reasonably suspect that their safety was in danger, it was reasonable
       for them to order defendant and his two passengers out of the vehicle
       and search them for weapons. In fact, when an officer has a
       reasonable suspicion during an investigatory stop that the individual
       may be armed and dangerous, the officer is permitted to take
       necessary measures to determine whether the person is armed and to
       neutralize any threat of physical harm. Terry, 392 U.S. at 24.
¶ 46        Although defendant and his two passengers were handcuffed,
       contrary to defendant’s suggestion, handcuffing does not
       automatically transform a Terry stop into an illegal arrest. United
       States v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989); see also United
       States v. Kapperman, 764 F.2d 786, 790 n.4 (11th Cir. 1985)
       (“neither handcuffing nor other restraints will automatically convert
       a Terry stop into a de facto arrest requiring probable cause”); United
       States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983) (when reasonably
       necessary, the use of handcuffs does “not necessarily convert a Terry
       stop into an arrest necessitating probable cause”); People v. Johnson,
       387 Ill. App. 3d 780, 791 (2009) (“[h]andcuffing of a suspect, alone,
       may not convert a Terry stop into an arrest, depending on the
       circumstances”). Ultimately, the propriety of handcuffing during a
       Terry stop depends on the circumstances of each case. See Glenna,
       878 F.2d at 972.
¶ 47        Here, we believe that the handcuffing was reasonable and a
       necessary measure because the officers were outnumbered, it was
       dusk, and they could reasonably suspect that one or more of the three
       individuals in defendant’s car possessed a gun or would be able to
       access a gun inside the vehicle if they were not secured by handcuffs.
       As our appellate court has recognized, in the context of a Terry stop,
       “[t]he law is clear that the determination that handcuffs or other forms
       of restraint were reasonable and necessary must be based on the
       totality of the circumstances actually confronting the officer, not on
       generalizations or remote possibilities.” People v. Arnold, 394 Ill.
       App. 3d 63, 72 (2009). Furthermore, defendant does not allege, and
       nothing in the record suggests, that the police officers used excessive
       force or that his brief detention while handcuffed and searched was


                                        -12-
       overly intrusive or otherwise exceeded the scope of a limited search
       for weapons. See Terry, 392 U.S. at 25 (protective search for
       weapons during investigatory stop must be limited to that necessary
       for the discovery of weapons that could be used to harm officers or
       others nearby).
¶ 48        Following the officers’ recovery of a total of six .454-caliber
       bullets from the plastic bag and defendant’s person, the officers’
       reasonable suspicion of a gun being present was obviously not
       dispelled. Instead, as the State argues, the quickly developing
       situation and the officers’ reasonable suspicion that a gun may be
       present continued to escalate as the officers recovered additional
       bullets. See Terry, 392 U.S. at 30-31 (noting that when nothing in the
       initial stages of the encounter dispel the officer’s reasonable fear for
       his safety, he is permitted to conduct a limited search for weapons);
       see also Gant, 556 U.S. at 352 (Scalia, J., concurring) (in the context
       of a protective search under Long “the possibility of access to
       weapons in the vehicle always exists, since the driver or passenger
       will be allowed to return to the vehicle when the [the incident] is
       completed”). Thus, under the circumstances of this case, and
       consistent with Long’s extension of Terry to permit protective
       searches of a vehicle’s passenger compartment during a Terry stop,
       Officer Alcott and Detective Johnson, acting on a reasonable fear for
       their safety, properly searched the passenger compartment of
       defendant’s vehicle and recovered the .454-caliber handgun under the
       front passenger floor mat.
¶ 49        We disagree with defendant’s contention, accepted by the lower
       courts, that Officer Alcott and Detective Johnson were required to
       first ask him whether he had a valid FOID card before ordering
       defendant and his passengers out of the car and searching them.
       Effectively, defendant argues that the officers should have eliminated
       any legal explanation for his possession of the bullet in the center
       console, i.e., established defendant was committing a weapons
       offense, before investigating further or suspecting him of being
       potentially dangerous.
¶ 50        The problem with defendant’s argument is that it ignores Terry’s
       clear instruction that “a perfectly reasonable apprehension of danger
       may arise long before the officer is possessed of adequate information
       to justify taking a person into custody for the purpose of prosecuting
       him for a crime.” Terry, 392 U.S. at 26-27. The focus in Terry on
       protective weapon searches is the officer’s reasonable belief that his


                                        -13-
       safety or the safety of others is in danger, regardless of whether
       probable cause exists to arrest for a crime. Terry, 392 U.S. at 27.
       Thus, Terry does not support defendant’s assertion that the officers
       here were first required to prove he possessed the bullet illegally.
¶ 51        Even assuming arguendo that defendant possessed a valid FOID
       card, that does not necessarily mean that Officer Alcott and Detective
       Johnson would have had no reasonable basis to suspect their safety
       was in danger. Notably, the United States Supreme Court has
       determined that the validity of a Terry protective weapon search does
       not always depend on whether the weapon is possessed illegally. See
       Adams v. Williams, 407 U.S. 143, 146 (1972) (concluding that a
       protective search for weapons under Terry may be “equally necessary
       and reasonable, whether or not carrying a concealed weapon violated
       any applicable state law”). Although the circumstances will vary with
       each case, the risk to a police officer posed by a potentially armed
       individual is not always eliminated simply because the weapon is
       possessed legally.
¶ 52        Accordingly, consistent with Terry and Long, we conclude that
       defendant’s fourth amendment constitutional rights were not violated
       by the officers’ conduct under the circumstances of this case.
       Following the initial lawful Terry stop and the observation of the
       bullet in plain view in defendant’s center console, the conduct of
       Officer Alcott and Detective Johnson was justified by their
       reasonable suspicion that a gun was present that threatened their
       safety. The officers’ conduct and resulting protective searches were
       properly limited to locating that gun and neutralizing the threat.
       Consequently, we conclude that the recovered bullets and handgun
       are admissible as evidence. See Terry, 392 U.S. at 31 (weapons
       seized during a protective search for weapons during a Terry stop are
       admissible).
¶ 53        Respectfully, the dissent is mistaken when it frames the issue in
       this appeal. Here, the issue has always been whether the police
       officers’ observation of the bullet justified their subsequent actions
       under Terry.
¶ 54        Although both lower courts found in defendant’s favor and
       suppressed all of the recovered evidence, neither lower court based
       its judgment on the reasoning advanced by the dissent here—the lack
       of reasonable suspicion under Terry. Infra ¶ 104 (Burke, J.,
       dissenting, joined by Freeman, J.). To the contrary, the trial court
       initially found that the recovered bullets were properly admitted under

                                        -14-
       Terry. On reconsideration, however, the trial court found that all of
       the recovered evidence should be suppressed because the officers did
       not obtain probable cause after they failed to ask defendant whether
       he possessed a valid FOID card.
¶ 55        Similarly, the appellate court majority concluded that all of the
       recovered evidence should be suppressed based on the lack of
       probable cause for a search incident to arrest. Notably, even though
       finding in defendant’s favor and refusing to consider the merits of the
       State’s argument under Terry, the appellate court majority, whose
       judgment the dissent would affirm, nevertheless determined that,
       initially, “the officers engaged in a lawful Terry stop.” 407 Ill. App.
       3d at 310. In other words, the propriety of the initial stop under Terry
       was not contested in the lower courts. Illustrating this point, even the
       appellate court majority and dissent agreed that the incident began as
       a lawful Terry stop. See 407 Ill. App. 3d at 310 (majority concluding
       “officers engaged in a lawful Terry stop”); 407 Ill. App. 3d at 311
       (Lampkin, J., dissenting) (agreeing that the initial encounter was a
       proper Terry stop).
¶ 56        Notably, the dissent fails to cite any support for their position in
       defendant’s brief. Supporting our interpretation of defendant’s
       argument, defendant clearly states in his brief that “[t]he only other
       factor giving rise to a Terry evaluation is an observation of a single
       round of what appeared to be rifle ammunition sticking out of the
       plastic bag in the center console.” Appellee brief at 3. Similarly, a few
       sentences later, defendant contends that although the officers
       observed a bullet in plain view, “[t]here is nothing in the record as to
       why, according to Terry, the officers did not make ‘reasonable
       inquiries’ as to the defendant’s possession of a valid FOID card.”
       Appellee brief at 4. Thus, as we identified above (supra ¶ 29),
       defendant contests the State’s position that Terry justifies the officers’
       conduct after they observed the plain-view bullet in defendant’s
       center console. In particular, defendant argues that Terry does not
       support the officers’ conduct because the surrounding circumstances
       in this case were “absolutely benign.” Appellee brief at 1. Although
       we reject defendant’s characterization of those circumstances,
       contrary to the dissent’s position, we address his claim as he presents
       it.
¶ 57        Furthermore, even assuming arguendo that defendant’s position
       was ambiguous in his appellee brief, any ambiguity was eliminated
       at oral arguments. See, e.g., Jackson v. Board of Election


                                         -15-
       Commissioners, 2012 IL 111928, ¶ 72 (Freeman, J., concurring in
       part and dissenting in part, joined by Burke, J.) (noting that “oral
       argument can play an important part in an appeal because attorneys
       have, at times, conceded points during the argument that were not
       conceded in the written brief”). Here, in response to questioning from
       Justice Theis at oral argument, defense counsel conceded that Terry
       would have allowed the officers, upon seeing the bullet, to ask the
       occupants out of the car and subject them to a pat-down search.
       Indeed, when Justice Theis asked if Terry applied “right there” when
       the occupants were ordered out of the car, defense counsel said “yes,”
       and when Justice Theis asked if, pursuant to Terry, the officers had
       a right to a pat-down search, defense counsel replied, “yes, yes of
       course.”
¶ 58        Obviously, defendant could not have made these concessions if
       he did not agree that this incident began as a proper Terry stop. If, as
       the dissent maintains, defendant actually meant to argue that Terry
       was inapplicable or was not yet triggered, he would have answered
       “no” in response to Justice Theis’s clear questioning. Defendant did
       not respond in that fashion. Instead, defendant repeatedly argued that,
       under Terry, the observation of a plain-view bullet was insufficient
       to provide the officers with a reasonable belief that their safety was
       in danger. In our view, there is no reason that this court should refuse
       to accept defendant’s presentation of his argument.
¶ 59        Thus, we have simply addressed defendant’s argument as he
       presents it. If the dissent wishes to address defendant’s argument in
       a different fashion, it may. Typically, though, “we rely on the parties
       to frame the issues for decision and assign to courts the role of neutral
       arbiter of matters the parties present.” (Internal quotation marks
       omitted.) People v. Givens, 237 Ill. 2d 311, 323 (2010). We continue
       to adhere to that principle here.
¶ 60        Effectively, the dissent contends that Terry does not permit a
       protective search for weapons when investigating officers, standing
       outside a vehicle that contains three occupants, observe a plain-view
       bullet in the vehicle and the officers reasonably suspect that one or
       more of the occupants may be armed and pose a danger to the
       officers’ safety. Infra ¶¶ 94-104 (Burke, J., dissenting, joined by
       Freeman, J.). The dissent, however, provides no support for its
       position that, under the circumstances of this case, the officers were
       required under Terry to ignore the bullet in plain view, or otherwise
       discount the officers’ reasonable belief that their safety was in danger.


                                         -16-
Supporting our conclusion here, however, is ample authority
upholding protective sweeps of vehicles when the police observe
ammunition in plain view. See, e.g., United States v. Baker, 47 F.3d
691 (5th Cir. 1995) (search of passenger compartment of vehicle
supported by, inter alia, observation of bullets in plain view on car’s
floorboard); United States v. Shkreli, 985 F.2d 576 (9th Cir. 1993)
(police entitled to search vehicle for weapon after observing three live
nine-millimeter bullets and one empty nine-millimeter bullet casing
in plain view in the rear of the passenger compartment of the
defendant’s car and finding two loaded ammunition magazines during
a consensual search of the glove compartment); United States v.
Richards, 967 F.2d 1189 (8th Cir. 1992) (limited sweep of passenger
compartment permissible after officer observed .22-caliber cartridges
sitting in plain view in the passenger compartment); United States v.
See, No. 1:07 CR 367, 2007 WL 4287853 (N.D. Ohio Dec. 5, 2007)
(observation of bullet in plain view on car’s floorboard allowed
officers to conduct cursory sweep for weapons under driver’s seat),
rev’d on other grounds, 574 F.3d 309 (6th Cir. 2009); State v. Garcia
Garcia, 821 P.2d 191 (Ariz. Ct. App. 1991) (officer safety concerns
allowed police to search passenger compartment of vehicle after they
observed bullets on the front seat, even though occupants had been
removed from car); State v. Conger, 375 N.W.2d 278 (Iowa App.
1985) (police observation of defendant dropping a bullet after he was
stopped for speeding allowed police to search the passenger
compartment of the defendant’s truck); State v. Wright, 763 P.2d 49
(Nev. 1988) (observance of bullet in plain view on car’s floorboard
could reasonably indicate the presence of a gun and thus allowed
police to search the passenger compartment for weapons to ensure
their safety); People v. Ragland, 549 N.Y.S.2d 249 (N.Y. App. Div.
1989) (police who stopped defendant’s car for suspected traffic
violation and noticed box of bullets in plain view had right to order
defendant out of car and frisk him for weapons); People v. Catalano,
512 N.Y.S.2d 626, 630 (N.Y. Sup. Ct. 1987) (“[a] question not
presented here is whether the police initially had sufficient
information to justify a search of the car (the sight of the bullet in
open view did that”(emphasis omitted)); Commonwealth v. Glessner,
486 A.2d 521, 523 (Pa. Super. Ct. 1985) (“[w]hen Officer Jackson
observed live bullets on the floor of the car, he could then conduct a
patdown of [the defendant’s] person for his own safety”); Carter v.
State, No. C14-92-01023-CR, 1994 WL 400916 (Tex. App. Aug. 4,
1994) (officer’s observance of box of bullets when driver opened the

                                 -17-
       glove box allowed him to ask driver to submit to a pat-down search;
       it was reasonable to assume that if bullets were present, a gun was
       present); People v. Magras, Nos. F297/2009-F299/2009, 2010 WL
       7371465 (V.I. Mar. 26, 2010) (observation of ammunition on car’s
       floorboard allowed officers to conduct a protective sweep of vehicle’s
       passenger compartment); State v. Reyes, No. 32481-4-II, 2006 WL
       1321290 (Wash. Ct. App. May 16, 2006) (observance of bullets in
       plain view on car’s floor allowed a protective sweep of passenger
       compartment and search of an unclaimed backpack that was near the
       bullets); cf. United States v. Thomas, No. 06-5012-01-CR-W-FJG,
       2007 WL 62694 (W.D. Mo. Jan. 8, 2007) (after retrieving bullets
       from defendant’s pocket, a search of the vehicle and further detention
       were appropriate under Terry, based on heightened suspicion of
       criminal activity); People v. Morales, 603 N.Y.S.2d 319, 320 (N.Y.
       App. Div. 1993) (“[t]he presence of bullets permits an inference that
       a gun is near at hand, and would constitute probable cause for a
       search [citation] even absent the factor of threat to personal safety”);
       State v. Olofson, 568 N.W.2d 786 (Wis. Ct. App. 1997) (discovery of
       bullets during pat down of defendant allowed police to search vehicle
       for weapons); State v. Williamson, 206 N.W.2d 613 (Wis. 1973)
       (after police found bullets on driver’s person during a pat-down
       search, they were entitled to search the vehicle for a gun).
¶ 61       Ultimately, the dissent’s position would require us to hold that
       police officers must ignore a bullet in plain view and first establish
       that defendant committed a crime before conducting a protective
       search for weapons. Terry, however, clearly rejected such a
       conclusion when it determined that “a perfectly reasonable
       apprehension of danger may arise long before the officer is possessed
       of adequate information to justify taking a person into custody for the
       purpose of prosecuting him for a crime.” Terry, 392 U.S. at 26-27.

¶ 62                           III. CONCLUSION
¶ 63       For the reasons stated above, we reverse the judgments of the
       appellate court and circuit court that suppressed the evidence in this
       case.

¶ 64      Appellate court judgment reversed.
¶ 65      Circuit court judgment reversed.



                                        -18-
¶ 66       JUSTICE THOMAS, specially concurring:
¶ 67       On the evening of June 29, 2006, a detective and a police officer
       approached a vehicle to determine why it was blocking the entrance
       to a hotel parking lot. Shortly after arriving at the vehicle, the officers
       observed immediately accessible ammunition in the center console
       and took decisive action to protect themselves. According to two
       members of this court, this was unreasonable under the fourth
       amendment. I submit that the unreasonable thing would be to deny
       police officers in this situation the right to protect themselves. I thus
       concur in the majority opinion, but write separately to explain more
       fully why I believe that the majority is correct and the dissent is not.
¶ 68       First, conspicuously absent from the dissent is the citation of any
       case law denying the police the right to conduct a protective search
       after they have observed ammunition in plain view while questioning
       the occupants of a vehicle. Certainly the fact that the dissent cannot
       cite a single case supporting its view calls into question its
       conclusion. Infra ¶ 100 (Burke, J., dissenting, joined by Freeman, J.).
       Moreover, as clearly demonstrated by the majority opinion, the
       dissenting justices consider the majority position to be erroneous only
       because they refuse to acknowledge the concessions that defense
       counsel made at oral argument.1 As noted by the majority, defense
       counsel specifically conceded that Terry would have allowed the
       officers to conduct a pat-down search of the vehicle’s occupants. I do
       not see how defense counsel could make this concession without also
       conceding that this began as a proper Terry stop, and the dissent
       makes no effort to explain how this would be possible.
¶ 69       Second, even apart from defendant’s concession, I believe that the
       police had the requisite reasonable suspicion of criminal activity. That
       suspicion was fully formed when they saw, immediately accessible to
       the vehicle’s occupants, “the largest pistol round” they had ever seen.
       I disagree with the dissent’s conclusion that the police possessed
       nothing more than an “inarticulate hunch.” Id. ¶ 95. “While
       ‘reasonable suspicion’ must be more than an inchoate ‘hunch,’ the
       Fourth Amendment only requires that police articulate some minimal,
       objective justification for an investigatory stop.” United States v.
       Givan, 320 F.3d 452, 458 (3d Cir. 2003). Moreover, “reasonable
       suspicion” is not only less than probable cause but “considerably less


           1
            The oral argument may be viewed on this court’s website at
       http://state.il.us/court/Media/On_Demand.asp.

                                          -19-
       than proof of wrongdoing by a preponderance of the evidence.”
       (Emphasis added.) United States v. Sokolow, 490 U.S. 1, 7 (1989). In
       determining whether reasonable suspicion exists, the totality of the
       circumstances must be considered. Id. at 8.
¶ 70        In determining that the police lacked the requisite reasonable
       suspicion, the dissent cites two cases—neither of which addresses the
       issue of whether the police may search a vehicle for weapons when
       they see a bullet in plain view—for the proposition that “[a] bullet is
       not contraband.” Infra ¶ 97 (Burke, J., dissenting, joined by Freeman,
       J.). But that is not the point. The point is that “[t]he presence of a
       bullet could reasonably indicate the presence of a gun” (Wright, 763
       P.2d at 50), and “[w]hile possession of ammunition *** may be legal
       ***, innocent conduct may nonetheless create reasonable suspicion
       that criminal activity is afoot” (Magras, 2010 WL 7371465, at *6).
       Again, we must consider the totality of the circumstances, and context
       is key. If the police see a box of rifle shells on the front seat of a
       pickup truck in downstate Illinois on a fall afternoon, and there is a
       gun rack on the back of the truck and the driver is wearing a
       camouflage hunting vest and blaze orange cap, then the presence of
       ammunition likely does not create a reasonable suspicion of criminal
       activity. Here, by contrast, the police were in an urban setting at dusk,
       three individuals were parked in a vehicle with the engine running,
       blocking the entrance to a hotel parking lot, and the officers observed
       what looked like the largest pistol round they had ever seen in a
       plastic bag in the center console. I believe that this created the
       requisite minimal, objective justification for a Terry stop. As the State
       points out, for instance, a person commits the Class 4 felony of
       aggravated unlawful use of a weapon if he or she has an uncased and
       unloaded firearm in a vehicle and the ammunition is immediately
       accessible. See 720 ILCS 5/24-1.6(a)(1), (3)(B) (West 2010). Here,
       the ammunition was immediately accessible, and the presence of the
       ammunition reasonably indicated the presence of a gun. Certainly this
       created a reasonable suspicion that defendant was committing
       aggravated unlawful use of a weapon.2


           2
            The dissent asserts that the police had nothing more than an
       “inarticulate hunch” that a handgun was being transported illegally in the
       vehicle. Infra ¶ 95 (Burke, J., dissenting, joined by Freeman, J.). This is
       clearly not correct. The suspicion was based on the immediately accessible
       handgun ammunition. If immediately accessible handgun ammunition in

                                          -20-
¶ 71       Next, the dissent takes it as a given that the police may never
       engage in a protective weapons search for their own safety unless they
       have a reasonable, articulable suspicion of criminal activity. See infra
       ¶ 109 (Burke, J., dissenting, joined by Freeman, J.). In fact, this is
       actually a hotly contested issue in the federal courts, with some
       circuits taking that view, but others holding that the police may
       conduct protective frisks for weapons even during consensual
       encounters. See 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at
       841 n.13 (5th ed. 2012) (noting conflict in the courts). For instance,
       the Fourth and Eighth Circuits have held that a frisk requires
       suspicion of criminal activity. See United States v. Burton, 228 F.3d
       524, 528 (4th Cir. 2000); United States v. Gray, 213 F.3d 998 (8th
       Cir. 2000).3 By contrast, the First, Ninth, and Eleventh Circuits have
       upheld frisks solely on the basis of officer safety. See United States
       v. Romain, 393 F.3d 63, 75-76 (1st Cir. 2004); United States v.
       Orman, 486 F.3d 1170, 1176-77 (9th Cir. 2007);4 United States v.
       Bonds, 829 F.2d 1072, 1075 (11th Cir. 1987). The principal reasons



       the center console does not at least create a reasonable suspicion that a
       firearm is being transported illegally, one wonders what evidence would do
       so.
           3
             The Eighth Circuit has not been consistent, however, upholding frisks
       based solely on safety concerns in United States v. Ellis, 501 F.3d 958, 961-
       63 (8th Cir. 2007) (“[j]ustification for a protective pat-down based upon a
       fear for officer or bystander safety can arise after the commencement of
       either an investigative stop or a consensual encounter”), and United States
       v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000) (“Davis’s assertion that the
       suspicion justifying a protective frisk must be present at the outset of an
       investigative stop also fails to recognize the analytical distinction between
       investigative stops and protective frisks. The danger to officer safety that
       justifies a protective search may arise after a consensual encounter or
       investigative stop has commenced.”).
           4
            Attempting to demonstrate that there is no conflict in the federal
       courts, the dissent argues that Orman was overruled by Liberal v. Estrada,
       632 F.3d 1064 (9th Cir. 2011), which is an interesting assertion given that
       Liberal involved an unlawful stop rather than a consensual encounter, did
       not discuss consensual encounters in any fashion, and did not cite Orman.
       See generally Department of Public Works & Buildings v. Farina, 29 Ill. 2d
       474, 479-80 (1963) (judicial opinions must be read in light of facts
       involved and are authority only for what is actually decided).

                                           -21-
       several courts have upheld the right to frisk for weapons during
       consensual encounters were thoroughly spelled out by Justice
       Baldock in his dissent in United States v. House, 463 F. App’x 783,
       793 (10th Cir. 2012) (Baldock, J., dissenting): first, “the strong
       governmental interest in officer safety is present even in consensual
       encounters”; second, “requiring reasonable suspicion of criminal
       activity would hamstring officers’ ability to investigate suspicious
       behavior”; and third, “requiring reasonable suspicion of criminal
       activity before a frisk would prevent officers from taking ‘reasonable
       steps to ensure their safety’ during consensual encounters.” Id. at 791-
       93. Moreover, the reason that Justices Burke and Freeman are forced
       to rely on Justice Harlan’s special concurrence in Terry is that the
       Supreme Court in Terry did not limit the right to search for weapons
       only to those cases in which the police have a reasonable suspicion of
       criminal activity. Rather, the Terry majority held that the rules for
       protective frisks “will have to be developed in the concrete factual
       circumstances of individual cases.” Terry v. Ohio, 392 U.S. 1, 29
       (1968).
¶ 72        According to the dissent, this conflict was put to rest by Arizona
       v. Johnson, 555 U.S. 323 (2009), a decision that did not involve
       consensual encounters. The dissent is correct that the government in
       that case argued that the police do not always need a reasonable
       suspicion of criminal activity before conducting a frisk. However, the
       attorneys for both the State of Arizona and the United States argued
       that the Court did not need to resolve that issue if it found that the
       passengers had been lawfully seized, and that is what the Court
       ultimately determined. As that Court has itself pointed out, the words
       of its opinions must be read in light of the facts under discussion.
       Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).
¶ 73        The dissent notes that, at the oral argument in Johnson, Justice
       Stevens was skeptical of the government’s argument. The dissent
       does not mention, however, that Chief Justice Roberts and Justice
       Breyer were equally as skeptical of the defendant’s argument that the
       police may never act to protect themselves absent a reasonable
       suspicion of criminal activity. For instance, Chief Justice Roberts
       pointed out that there may be a situation in which a person who
       appears to be armed and dangerous approaches an officer, instead of
       vice versa. Chief Justice Roberts asked if the rule was like that of the
       Old West where “the sheriff has to wait for the defendant to draw
       first.” He then expressed skepticism that an officer who finds himself


                                        -22-
       in a situation where he may be shot cannot do anything about it, “not
       even a simple pat down.” Transcript of Proceedings, Arizona v.
       Johnson, at 30 (Dec. 9, 2008) (Roberts, C.J.). Justice Breyer then
       raised a concern that is the same as one that I raise later in this special
       concurrence: there may be situations in which officers who are not
       investigating crimes but engaging in some other legitimate police
       activity come into close contact with people whom they believe to be
       armed and dangerous:
                    “Suppose we go beyond. I mean, once we go beyond, I
                become a little at sea as to what the answers are because
                policemen do things other than investigate crime.
                    A policeman is on protective duty. The individual he is
                protecting is approached by a member of the Crips gang, who
                has a bulge in his pocket. Can the police, with reasonable
                grounds to think that the person is armed, pat down that
                person? Or is he supposed to wait until the gun comes out of
                the pocket and the person who is being protected is shot?
                    A policeman is on a bridge. Somebody stops the car in the
                middle of the bridge. Traffic is held up in all directions. The
                policeman goes to try to remove the car from the bridge. In
                the back seat is a member of the Crips gang with a bulge in
                his pocket. Is the policeman supposed to ignore that?
                    I mean, policemen do many things, and once you tell me
                that we’re going beyond the facts of this case, I can think of
                all kinds of hypotheticals that aren’t so hypothetical, and I
                become uncertain about when the policeman can and when he
                cannot.
                    So how do you respond?” Transcript of Proceedings,
                Arizona v. Johnson, at 46-47 (Dec. 9, 2008) (Breyer, J.).
       I simply cannot agree with the dissent’s suggestion that the Supreme
       Court meant to put all of these difficult questions to rest by not
       addressing them in a case in which they were not required to do so.
¶ 74       Regardless, however, even if one accepts the view that the police
       generally are not allowed to frisk for their own safety during
       consensual encounters, the dissent fails to acknowledge that this case
       falls within an exception to that rule. Here, the police did not know
       that defendant and his companions were dangerous until they were
       already in their presence. No one disputes that the police had a right
       to approach defendant’s vehicle and ascertain why defendant was


                                          -23-
       blocking the entrance to the hotel’s parking lot. Only after the police
       were already at the vehicle did they have reason to believe that
       defendant and his companions were armed and dangerous, and at this
       point it was too late for the officers to avoid the encounter. The
       dissent cites Professor LaFave for the proposition that “ ‘if an officer,
       lacking the quantum of suspicion required by Terry to make a forcible
       stop, instead conducts a non-seizure field interrogation, he may not
       frisk the person interrogated upon suspicion he is armed.’ ” Infra ¶ 99
       (Burke, J., dissenting, joined by Freeman, J.) (quoting 4 Wayne R.
       LaFave, Search and Seizure § 9.6(a), at 841 (5th ed. 2012)). The
       reason given by Professor LaFave is that “in such a case the officer
       may protect himself by not engaging in the confrontation.” 4 Wayne
       R. LaFave, Search and Seizure § 9.6(a), at 841-43 (5th ed. 2012). The
       dissent neglects to inform the reader of the next two sentences in
       Professor LaFave’s treatise: “But there is a limited exception to the
       latter principle. If the officer has commenced a nonseizure
       confrontation without a pre-existing reasonable suspicion supporting
       a frisk, but such suspicion suddenly appears (most likely because of
       the suspect’s conduct), then the officer is entitled to frisk for his own
       protection.” Id. at 843. That is precisely what happened here. When
       the officers approached the vehicle, they had no reason at all to
       suspect that the vehicle’s occupants were armed and dangerous, so it
       makes no sense to argue that they should have avoided the encounter.
       Only after the nonseizure interrogation had commenced did they
       develop a reasonable suspicion that the vehicle’s occupants were
       armed and dangerous. Accordingly, the officers were entitled to frisk
       the vehicle’s occupants. Id. Thus, even under the dissent’s view of the
       law, the search here was permissible under an exception to the rule
       that the dissent relies upon. In other words, the entire dissent is spent
       setting up and knocking down a straw man.
¶ 75        The dissent would leave the officers with a Hobson’s choice: (1)
       simply leave the scene, knowing that three young men are in a car
       blocking the entrance to a motel parking lot at night with
       ammunition—and quite possibly a firearm—in the vehicle; or (2)
       continue to question the men, thus putting their own lives at risk in a
       situation in which they are outnumbered and they know there is quite
       possibly a firearm in the car. In his House dissent, Justice Baldock
       explained why several federal circuits have been unwilling to put the
       police in such a position:



                                         -24-
               “[R]equiring reasonable suspicion of criminal activity before
               a frisk would prevent officers from taking ‘reasonable steps
               to ensure their safety’ during consensual encounters.
               Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 108 L.
               Ed. 2d 276 (1990). Under this approach, an officer only has
               two options if he suspects a person he has consensually
               encountered may be armed and dangerous. First, he may
               choose to end the encounter and walk away. This is a
               nonsensical option, because it requires the officer to abandon
               the legitimate and non-intrusive performance of his duties and
               exposes him to potential danger in effectuating his retreat.
               Second, the officer may continue asking questions in hopes of
               acquiring adequate suspicion of criminal activity to justify a
               frisk. But this requires the officer to remain in a dangerous
               situation without taking any steps to ensure his safety.
               Officers should not be forced to decide between these equally
               bad options.” House, 463 F. App’x at 793-94 (Baldock, J.,
               dissenting).
       The touchstone of the fourth amendment is reasonableness (United
       States v. Knights, 534 U.S. 112, 118 (2001)), and the choice that the
       dissent offers to police officers is not reasonable. If the issue were
       squarely before us, I would be inclined to agree with those circuits
       that have not required, in every case, that the police have a reasonable
       suspicion of criminal activity before conducting a protective frisk for
       weapons. However, for two reasons, it is not necessary to resolve that
       question today: first, the police had the requisite reasonable suspicion
       of criminal activity, and second, even if they did not and this
       remained at all times a consensual encounter, then the frisk was
       permissible under an exception that allows for a frisk when the
       reasonable suspicion that a person is armed and dangerous arises after
       the consensual encounter has already commenced.
¶ 76       Finally, one related point that I will mention—but not dwell upon
       as the State does not argue it—is that it appears that this encounter
       began as a perfectly proper exercise of the police’s community
       caretaking function. Determining why a car is blocking the entrance
       to a business’s parking lot would seem to be precisely the type of
       function we described in People v. Luedemann, 222 Ill. 2d 530, 545-
       46 (2006), as being within the type of duties that police officers




                                        -25-
perform unrelated to the investigation of crime.5 In his treatise,
Professor LaFave explains that there are instances other than
investigating a suspect for possible criminal behavior when the police
may find themselves in the presence of a person they believe to be
armed and dangerous. 4 Wayne R. LaFave, Search and Seizure
§ 9.6(a), at 839 (5th ed. 2012). He notes that the proposition that the
police may avoid a person they believe to be dangerous applies only
when the police officer has unnecessarily put himself in a position of
danger by not avoiding an individual he believes to be armed and
dangerous. By contrast, he explains that the officer may conduct a
protective frisk when he has “some legitimate basis for *** being in
immediate proximity to the person.” (Emphasis added.) Id. In the
footnote supporting this statement, Professor LaFave cites United
States v. King, 990 F.2d 1552 (10th Cir. 1993), which held that,
where a police officer as part of his community caretaking function
approaches a stopped car in a traffic jam, he was entitled for self-
protection to order the driver out of the car upon seeing a gun on the
seat. 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at 840 n.8 (5th
ed. 2012). This certainly suggests that Professor LaFave recognizes
that, if an officer’s community caretaking function brings him into
close proximity to a person he believes to be armed and dangerous,
then he has the “legitimate basis” that would allow him to conduct a
protective weapons search. This discussion should also make clear

    5
     The dissent appears to be confused by my use of the term “community
caretaking,” because that is a term that the courts use to uphold seizures as
reasonable under the fourth amendment when the police are engaged in
activities other than the investigation of crime. Infra ¶¶ 116-17 (Burke, J.,
dissenting, joined by Freeman, J.). But, as we explained in Luedemann, the
term “community caretaking” “refers to a capacity in which the police act
when they are performing some task unrelated to the investigation of
crime.” Luedemann, 222 Ill. 2d at 545. My point in using the term here is
simply to illustrate that there are situations other than the investigation of
criminal activity in which an officer’s legitimate job duties may bring him
into close proximity to an individual he believes is armed and dangerous
and that it is not reasonable to deny these officers the right to protect
themselves. By upholding seizures as reasonable under the fourth
amendment when officers are acting in a community caretaking capacity,
the courts have obviously not set forth all of the rules that apply to officers
acting in such a capacity. However, if it would help to avoid any confusion,
the reader is certainly free to substitute some other term such as “public
safety” or “public assistance” for “community caretaking.”

                                     -26-
       that the dissent is simply wrong when it flatly asserts that the police
       must always suspect someone of criminal activity before conducting
       a frisk. Infra ¶ 113 (Burke, J., dissenting, joined by Freeman, J.).6
       Again, Professor LaFave is careful to word the requirement as that the
       police must have some legitimate basis for being in the immediate
       proximity of the person. 4 Wayne R. LaFave, Search and Seizure
       § 9.6(a), at 839 (5th ed. 2012); see also id. at 857 (when
       distinguishing between suspicion of crimes that support a frisk all on
       their own and those that require a suspicion that the subject is armed
       and dangerous, treatise lists in latter category “legitimate noncriminal
       reason[s]” and “when the officer’s duties otherwise necessitate his
       being in close proximity to the individual”). And, notably, the dissent
       never explains why it believes that it is unreasonable under the fourth
       amendment for a police officer to take immediate action to protect
       himself when his legitimate job duties bring him into close proximity
       with an individual that he believes to be armed and dangerous.
¶ 77       Keeping in mind that the touchstone of the fourth amendment is
       reasonableness, it makes perfect sense that police officers should be
       able to protect themselves in these situations. It cannot be the case
       that what is reasonable under the fourth amendment is that police
       officers who stop vehicles for even the most minor traffic violations
       can do protective sweeps for their safety when they see bullets in
       plain view, but police officers who are acting in a legitimate
       community caretaking capacity may not. Regardless, however, I
       believe that this determination can be put off to another day, as the
       State has not made this argument, and I believe that, here, the police
       did have a reasonable suspicion of criminal activity.

¶ 78       JUSTICE BURKE, dissenting:
¶ 79       The threshold question presented in this appeal is whether the
       mere sight of a single bullet inside an occupied parked car provides
       a police officer with the reasonable suspicion of criminal activity
       required to seize a person under Terry v. Ohio, 392 U.S. 1 (1968).
       The majority does not address this question, however, finding that
       defendant has conceded the existence of reasonable suspicion of


           6
            Indeed, the principal case cited by the dissent for this proposition is
       Johnson, a case in which the Supreme Court unanimously upheld the right
       of the police to frisk people for whom they had no suspicion of criminal
       activity.

                                          -27-
       criminal activity and the legality of his seizure. Because I do not agree
       that defendant has conceded these issues, and because I believe the
       police officers in this case lacked any reasonable suspicion of
       criminal activity on the part of defendant, I must respectfully dissent.

¶ 80                                       I
¶ 81        The facts, briefly summarized, are as follows. On June 29, 2006,
       at 8:45 p.m., Homewood police officer William Alcott and his
       partner, Detective Johnson of the Glenwood police department, were
       driving near the Super 8 Motel in East Hazel Crest, Illinois. The
       officers were patrolling for underage parties at the motel. They saw
       defendant’s parked car, which was idling near the motel’s front door
       and blocking one of the two entrances to the parking lot. Defendant
       was in the driver’s seat, and a second person was in the passenger
       seat. The officers parked near defendant’s car, got out, and
       approached. As they did so, a third individual exited the motel and
       got into defendant’s car. Alcott approached the driver’s side window
       and told defendant that he was blocking the entrance to the parking
       lot. Defendant replied that they were there to pick up someone.
       Johnson, who was located at the passenger side of the car, motioned
       to Alcott and stated that a plastic bag was visible in the center
       console. When Alcott shined his flashlight on the bag, he saw a single
       bullet sticking out of the bag. Alcott described the bullet as looking
       “almost *** like a rifle round” and as “the largest pistol round” he
       had ever seen.
¶ 82        Upon seeing the bullet, Alcott ordered defendant and the two
       passengers out of the car and immediately handcuffed all three
       individuals at the front of the vehicle. Johnson then retrieved the
       plastic bag from the center console. The plastic bag contained a total
       of five live rounds of .454 ammunition. Alcott patted down defendant
       and retrieved a sixth round of .454 ammunition from defendant’s
       pants pocket. At that point, Johnson searched the vehicle’s interior
       and discovered a .454 revolver under the front passenger floor mat.
       The officers transported all three individuals to the police department.
¶ 83        Defendant was subsequently charged with several weapons
       offenses. He filed a pretrial motion to quash arrest and suppress
       evidence, which was ultimately granted by the circuit court. The
       circuit court concluded that the initial approach by the police officers
       to defendant’s car was a consensual encounter that did not implicate
       the fourth amendment. However, according to the circuit court, the

                                         -28-
       removal of defendant from his car and subsequent handcuffing
       constituted an arrest that was not supported by probable cause.
       Accordingly, the circuit court ordered the suppression of the bullets
       and revolver as the fruits of the unlawful arrest. The appellate court,
       with one justice dissenting, affirmed. 407 Ill. App. 3d 294.

¶ 84                                      II
¶ 85       The fourth amendment to the United States Constitution, which
       applies to the states via the fourteenth amendment (Mapp v. Ohio,
       367 U.S. 643 (1961)), and article I, section 6, of the Illinois
       Constitution of 1970 guarantee the right of the people to be free from
       unreasonable searches and seizures. U.S. Const., amend. IV; Ill.
       Const. 1970, art. I, § 6. Warrantless searches and seizures are
       considered unreasonable under the federal and state constitutions
       unless they fall within one of a few well-defined exceptions. People
       v. Pitman, 211 Ill. 2d 502, 513 (2004). One such exception is the
       “stop and frisk” recognized in Terry v. Ohio, 392 U.S. 1 (1968).
¶ 86       In its most recent decision addressing Terry, the United States
       Supreme Court explained what is required for a stop and frisk to
       comport with the fourth amendment:
               “In a pathmarking decision, Terry v. Ohio, 392 U.S. 1 (1968),
               the Court considered whether an investigatory stop
               (temporary detention) and frisk (patdown for weapons) may
               be conducted without violating the Fourth Amendment’s ban
               on unreasonable searches and seizures. The Court upheld
               ‘stop and frisk’ as constitutionally permissible if two
               conditions are met. First, the investigatory stop must be
               lawful. That requirement is met in an on-the-street encounter,
               Terry determined, when the police officer reasonably suspects
               that the person apprehended is committing or has committed
               a criminal offense. Second, to proceed from a stop to a frisk,
               the police officer must reasonably suspect that the person
               stopped is armed and dangerous.” Arizona v. Johnson, 555
               U.S. 323, 326-27 (2009).
¶ 87       This court has consistently applied this two-part rule when
       addressing the constitutionality of a stop and frisk (see, e.g., People
       v. Close, 238 Ill. 2d 497, 505 (2010); People v. Flowers, 179 Ill. 2d
       257 (1997); People v. Galvin, 127 Ill. 2d 153 (1989)), and has held
       that the Terry standards are used to determine the propriety of
       investigatory stops under article I, section 6, of the Illinois

                                        -29-
       Constitution (People v. Thomas, 198 Ill. 2d 103, 109 (2001)). The
       two-part rule has also been codified by our legislature in the Code of
       Criminal Procedure (see 725 ILCS 5/107-14, 108-1.01 (West 2010)).
¶ 88        The State maintains that the police officers’ actions in this
       case—ordering defendant out of his car, handcuffing him, patting him
       down, and searching his car—were all part of a constitutionally valid
       stop and frisk under Terry. Initially, the majority rejects the appellate
       court’s conclusion that the State forfeited its Terry argument, finding,
       instead, that the argument may be addressed on its merits. Supra
       ¶¶ 25-27. I agree with the majority that the State’s argument has not
       been forfeited. I disagree, however, with the way in which the
       majority goes on to frame its Terry analysis.
¶ 89        The majority finds that defendant has conceded the existence of
       reasonable suspicion of criminal activity and has conceded the
       legality of his seizure by the police officers. Thus, according to the
       majority, the first prong of the Terry rule is not at issue and the only
       question before us is whether the second prong of the Terry rule has
       been satisfied. I disagree.
¶ 90        As the majority itself acknowledges, defendant argues in his brief
       that the officers’ actions in this case resulted in an “unlawful seizure.”
       Supra ¶ 30. Defendant further maintains “that Officer Alcott and
       Detective Johnson could not reasonably believe a crime was being
       committed” and “that Terry does not support the officers’ conduct
       because the surrounding circumstances in this case were ‘absolutely
       benign.’ ” Supra ¶ 56. At oral argument defense counsel continued
       with this theme. Counsel noted that “in a Terry situation there has to
       be criminal activity afoot,” and stated that “Officer Alcott was
       specifically asked [at the suppression hearing]—was there any
       criminal activity of any kind? Answer—no.” Counsel argued
       repeatedly that there was “no criminal activity” in this case and
       nothing that “would give rise to suspicion of any criminal activity.”
       This, of course, is the standard necessary to justify a seizure under the
       first prong of Terry.
¶ 91        However, during oral argument, in response to a question from
       the bench, counsel contradicted himself and stated that the officers
       could, under Terry, order defendant from the car. Counsel then
       immediately corrected himself and stated that “we should have a
       distinction” between ordering and asking people out of their cars, that
       the police here could only “ask” defendant out of the car and that the
       police could only perform a “Terry-like inquiry.” Later, counsel

                                         -30-
       stated that police could conduct a pat down of defendant.7
       Importantly, defense counsel did not attempt to reconcile his
       contradictory statements and this court did not ask for clarification on
       this point.
¶ 92       I take it as a given that contradictory statements made by an
       attorney cannot form the basis of a binding concession, particularly
       in a criminal case. Recognizing a concession in these circumstances
       would require this court, after the fact, to pick which of counsel’s
       statements to ignore and which to give credence to. And, indeed, that
       is what the majority has done here. The majority does not dispute that
       defense counsel repeatedly argued that there was nothing in this case
       that “would give rise to suspicion of any criminal activity.” Yet, the
       majority chooses to disregard these assertions. In my view, this is
       improper. Whatever contradictory positions have been advanced by
       defendant in this case, he has never retreated from the contention that
       the police officers lacked reasonable suspicion of criminal activity. I
       would address that argument.

¶ 93                                       III
¶ 94       As the circuit court held, the initial approach of the police officers
       to defendant’s car was a consensual encounter. See People v.
       Luedemann, 222 Ill. 2d 530, 552-53 (2006) (citing Florida v. Bostick,
       501 U.S. 429, 434 (1991)). The consensual encounter escalated to a
       seizure when defendant was ordered out of his car by the officers.
       See, e.g., 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 595
       (5th ed. 2012) (“the encounter becomes a seizure if the officer orders
       the suspect to ‘freeze’ or to get out of the car”). Accordingly, the
       threshold issue in this case is whether the seizure of defendant’s
       person, which took place at the time that the officers ordered
       defendant out of his parked car, was justified by the presence of
       reasonable suspicion of criminal activity.



           7
            Confusingly, the majority relies on these statements to find that
       defendant has conceded that his “initial encounter with the officers, before
       he was ordered out of his car and handcuffed” was a seizure under Terry.
       Supra ¶ 41. This, despite the fact that counsel’s statements had nothing to
       do with the officer’s initial approach to defendant’s car, and despite the fact
       that the circuit court expressly held that the initial approach was not a
       seizure.

                                            -31-
¶ 95       I agree with defendant’s assertion that the record is devoid of any
       facts known to the police officers which might have amounted to
       anything more than a hunch of criminal activity on defendant’s part.
       See Terry, 392 U.S. at 22 (rejecting an “inarticulate hunch” as a basis
       for a warrantless seizure). Defendant was not in a high-crime area at
       the time he was seized. Nor had the police officers received any calls
       of suspicious activity or crimes in the area. It was not late at night and
       the location of defendant’s car, parked in front of a motel entrance,
       was hardly unusual. Thus, there was nothing to indicate that
       defendant was “in an unlikely place at an unlikely time.” People v.
       McGowan, 69 Ill. 2d 73, 78 (1977).
¶ 96       When the officers approached defendant’s car and informed him
       that he was blocking the entrance to the motel’s parking lot,
       defendant stated that he was picking up someone. Defendant’s answer
       was entirely consistent with the officers’ recent observation of an
       individual exiting the motel and getting into defendant’s car. Further,
       defendant never made any furtive movements or gestures, or appeared
       agitated, angry or drunk, and there was nothing to indicate that the
       officers could reasonably suspect they were about to be assaulted or
       attacked in any way. In short, none of the factors typically associated
       with establishing reasonable suspicion of criminal activity were
       present. Instead, as defendant argues, “the circumstances in this case
       were ‘absolutely benign.’ ”
¶ 97       The State relies on the presence of the bullet in the car to justify
       defendant’s seizure. But no court has held that a bullet observed
       inside a vehicle, standing alone, establishes the reasonable suspicion
       of criminal activity that would justify a seizure under Terry. A bullet
       is not contraband. See United States v. Blom, 242 F.3d 799, 808 (8th
       Cir. 2001); United States v. Lemons, 153 F. Supp. 2d 948, 959 (E.D.
       Wis. 2001) (ammunition is not immediately apparent as evidence of
       unlawful activity because it may be used for hunting, recreational
       target shooting, or otherwise in connection with a lawfully possessed
       weapon). Thus, the seizure of defendant was not warranted absent
       other facts to support a reasonable suspicion that defendant was
       committing, or about to commit, some crime.
¶ 98       The State contends that the presence of the bullet made it
       reasonable to suspect that defendant was committing the crime of
       aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West
       2010)), an offense which makes it illegal, inter alia, to carry a firearm
       in a car if the weapon is uncased, unloaded and ammunition is


                                         -32-
        immediately accessible, or if the person possessing the firearm lacks
        a firearm owner’s identification card (FOID card).8 See People v.
        Zimmerman, 239 Ill. 2d 491, 497-500 (2010) (describing the offense).
¶ 99        Defendant, in response, does not dispute that the police officers
        could, upon seeing the bullet, reasonably assume that a firearm was
        present in the car. However, defendant notes that even under the
        aggravated unlawful use of a weapon statute in existence at the time
        defendant was seized, it was not per se “unlawful to carry or possess
        a firearm in a vehicle.” And, as defense counsel maintained at oral
        argument, the officers could not, simply from the sight of a bullet,
        reasonably suspect that any firearm in the car was being carried
        illegally. Thus, according to defendant, there was “not a scintilla of
        evidence linking the ammunition to any form of criminal conduct.”
        I agree.
¶ 100       Even if the presence of the bullet made it reasonable to assume
        there was a gun somewhere in defendant’s car, the bullet provided no
        information as to whether any such gun was cased, or uncased, or
        whether any of the occupants of the car had a FOID card. In other
        words, upon seeing a bullet in a car, and nothing else, the police
        officers had to make a guess that an unseen firearm was being
        transported illegally—the very thing that Terry holds is
        impermissible. See Terry, 392 U.S. at 22 (intrusions upon fourth
        amendment rights must be based on something “more substantial than
        inarticulate hunches”).
¶ 101       Other courts have reached the same result, holding that the
        knowledge of the presence of a firearm does not, by itself, provide
        reasonable suspicion that the firearm is being transported or carried
        illegally. See, e.g., Commonwealth v. Couture, 552 N.E. 2d 538, 541
        (1990) (“[T]here is absolutely no indication that the defendant in this
        case was engaged in criminal activity. The mere possession of a
        handgun was not sufficient to give rise to a reasonable suspicion that
        the defendant was illegally carrying that gun, and the stop was
        therefore improper under Fourth Amendment principles.”); United
        States v. Lewis, 672 F.3d 232, 240 (3d Cir. 2012) (an informant’s tip
        that the suspect had firearms in his car did not “permit an officer to
        suspect—let alone reasonably suspect—that possession of either


           8
             This statute has recently been held unconstitutional. See Moore v.
        Madigan, 702 F.3d 933 (7th Cir. 2012), rehearing en banc denied, 708 F.3d
        901 (7th Cir. 2013).

                                          -33-
        firearm was illegal or that the firearms were being used in a criminal
        manner”); United States v. McHugh, 639 F.3d 1250, 1257 (10th Cir.
        2011) (suspicion that defendant had a weapon in the car, “standing
        alone, does not establish reasonable suspicion” to justify a seizure
        under Terry); United States v. Ubiles, 224 F.3d 213, 217 (3d Cir.
        2000) (“a mere allegation that a suspect possesses a firearm, as
        dangerous as firearms may be, [does not] justify an officer in stopping
        a suspect absent the reasonable suspicion required by Terry” that the
        firearm was possessed or carried illegally).
¶ 102       To be sure, if defendant, or the others in the car, had done
        anything by way of movement or action to create a suspicion that the
        officers were about to be assaulted, that would have provided the
        reasonable suspicion of criminal activity to justify seizing defendant.
        See, e.g., Narcisse, 927 N.E.2d at 446 (“When an individual appears
        to be ready to commit violence, either against police officers or
        bystanders, it is reasonable to believe that he is ‘about to commit a
        crime,’ thus satisfying Terry’s first prong.”); 4 Wayne R. LaFave,
        Search and Seizure § 9.6(a), at 843 (5th ed. 2012) (if the “suspect’s
        conduct” creates a reasonable suspicion that violence is about to be
        committed against an officer, the suspect may be seized). However,
        nothing like that happened here.
¶ 103       Finally, it is worth noting the consequences that flow from
        accepting the State’s argument regarding reasonable suspicion of
        criminal activity. A bullet may be present in a car for any number of
        reasons that have nothing to do with criminal activity. It may be left
        over from a hunting trip when the car has not been fully cleaned out
        or it may be in the car because the driver is taking it to the store to
        know what type of ammunition to purchase. The State’s position
        would hold that in these instances and, indeed, any time a bullet is in
        an occupied parked car, a police officer may reasonably assume that
        criminal activity is afoot and may, therefore, seize the occupant of the
        car. This is an unreasonable result that sweeps far too broadly.
¶ 104       The mere sight of the bullet did not provide the police officers
        with the reasonable suspicion of criminal activity required to seize
        defendant under Terry. Accordingly, the stop and frisk of defendant
        was constitutionally impermissible.

¶ 105                                      IV
¶ 106      Justice Thomas, specially concurring, offers several additional
        points in support of the majority. I do not find these points persuasive.

                                          -34-
¶ 107       First, Justice Thomas contends that focusing on the lack of
        reasonable suspicion of criminal activity in this case forces the police
        officers into a “Hobson’s choice.” Supra ¶ 75 (Thomas, J., specially
        concurring). But this contention rests on the false premise that it
        would have been wrong for the police officers to let defendant go
        after they had spoken with him. It would not have been. After
        speaking with defendant, the officers lacked reasonable suspicion that
        defendant was engaged in any criminal activity. It can hardly be
        wrong to let a person go on his way when that person is not suspected
        of any criminal activity.
¶ 108       Raising an argument not advanced by the State, Justice Thomas
        also questions whether the seizure of defendant had to be justified by
        reasonable suspicion of criminal activity. Specifically, Justice
        Thomas suggests that it may have been permissible for the police
        officers to escalate the consensual encounter with defendant into a
        protective frisk absent any reasonable suspicion of criminal activity.
        Supra ¶¶ 76-77 (Thomas, J., specially concurring). I cannot agree.
¶ 109       As the United States Supreme Court clearly stated in Johnson, the
        threshold requirement for a stop and frisk is the existence of
        reasonable suspicion of criminal activity. Johnson, 555 U.S. at 326.
        Justice Harlan explained the rationale behind this requirement in
        Terry:
                “[I]f the frisk is justified in order to protect the officer during
                an encounter with a citizen, the officer must first have
                constitutional grounds to insist on an encounter, to make a
                forcible stop. Any person, including a policeman, is at liberty
                to avoid a person he considers dangerous. If and when a
                policeman has a right instead to disarm such a person for his
                own protection, he must first have a right not to avoid him but
                to be in his presence. That right must be more than the liberty
                (again, possessed by every citizen) to address questions to
                other persons, for ordinarily the person addressed has an equal
                right to ignore his interrogator and walk away; he certainly
                need not submit to a frisk for the questioner’s protection.”
                (Emphasis in original.) Terry, 392 U.S. at 32-33 (Harlan, J.,
                concurring).
        In other words, there is no “ ‘freestanding’ right to search based
        solely upon officer safety concerns.” Speten v. State, 2008 WY 63,
        ¶ 23, 185 P.3d 25 (Wyo. 2008). Rather, the right to frisk for weapons



                                           -35-
        arises out of the “need for officer safety during an investigative
        detention.” Id.
¶ 110        The requirement of reasonable suspicion of criminal activity has
        been read broadly. Courts have allowed police officers, for example,
        to frisk a companion of another person who is engaged in criminal
        activity or is the subject of a criminal investigation in order to secure
        the scene and protect the safety of the officer. See generally 4 Wayne
        R. LaFave, Search and Seizure § 9.6(a), at 868-73 (5th ed. 2012). But
        the underlying requirement remains: To protect the “ ‘sacred ***
        right of every individual to the possession and control of his own
        person, free from all restraint or interference of others, unless by clear
        and unquestionable authority of law’ ” (Terry, 392 U.S. at 9 (quoting
        Union Pacific R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891)), a
        police officer conducting a stop and frisk must have, in some form,
        reasonable suspicion of criminal activity. See, e.g., 4 Wayne R.
        LaFave, Search and Seizure § 9.6(a), at 841 (5th ed. 2012) (“if an
        officer, lacking the quantum of suspicion required by Terry to make
        a forcible stop, instead conducts a non-seizure field interrogation, he
        may not frisk the person interrogated upon suspicion he is armed”);
        Adams v. Williams, 407 U.S. 143, 146 (1972) (“[s]o long as the
        officer is entitled to make a forcible stop, and has reason to believe
        that the suspect is armed and dangerous, he may conduct a weapons
        search limited in scope to this protective purpose” (emphasis added));
        Gomez v. United States, 597 A.2d 884, 891 (D.C. 1991) (“[I]f the
        officer lacked articulable suspicion to seize [the defendant], the
        seizure could not be justified upon the notion that it would be
        dangerous to chat with [the defendant] and his companions without
        restricting their liberty. No matter how appealing the cart may be, the
        horse must precede it.”); United States v. Burton, 228 F.3d 524, 528
        (4th Cir. 2000) (“To conduct such a protective search, an officer must
        first have reasonable suspicion supported by articulable facts that
        criminal activity may be afoot.”); United States v. Gray, 213 F.3d
        998, 1000 (8th Cir. 2000) (“a citizen’s consent to answer questions
        cannot, without more, supply the reasonable suspicion that criminal
        activity is afoot needed to justify a pat-down search” (emphasis in
        original)).
¶ 111        Justice Thomas contends, however, that the law in this area is not
        settled. According to Justice Thomas, it is a “hotly contested issue”
        in the federal circuit courts as to whether, in the absence of
        reasonable suspicion of criminal activity, the police may seize a


                                          -36-
        person in order to engage in a protective weapons search. Supra ¶ 71
        (Thomas, J., specially concurring). The case law does not support this
        contention.
¶ 112        United States v. Romain, 393 F.3d 63 (1st Cir. 2004), relied upon
        by Justice Thomas, does not eliminate the requirement of reasonable
        suspicion of criminal activity. In fact, the court there held that the
        suspect’s behavior “gave rise to a reasonable suspicion that he might
        have been involved in criminal wrongdoing.” Id. at 72. United States
        v. Bonds, 829 F.2d 1072 (11th Cir. 1987), is inapposite, as that was
        a case where a person’s home was being investigated pursuant to a
        search warrant and the defendant, a confederate who arrived at the
        home, was frisked during that investigation. United States v. Orman,
        486 F.3d 1170 (9th Cir. 2007), also cited by Justice Thomas, is no
        longer followed in the Ninth Circuit. More recent decisions, such as
        Liberal v. Estrada, 632 F.3d 1064, 1079 (9th Cir. 2011), have cited
        to the Supreme Court’s decision in Johnson and held that both prongs
        of Terry are required for a stop and frisk. Id. at 1079 (“The first Terry
        condition was not met in this case; the traffic stop was unlawful
        because it did not rest on a reasonable suspicion that a violation of
        law had occurred. Therefore, it would not have been reasonable for
        [the police officers] to stop and frisk Plaintiff ***.”).
¶ 113        As the Liberal court’s reliance on Johnson shows, the Supreme
        Court has made it abundantly clear that reasonable suspicion of
        criminal activity is required to justify a stop and frisk. Indeed, in
        Johnson, the State of Arizona asked the Supreme Court to abandon
        the first prong of Terry and hold that a police officer may stop and
        frisk someone even in the absence of any suspicion of criminal
        activity. See Brief of the Petitioner, Arizona v. Johnson, 2008 U.S. S.
        Ct. Briefs LEXIS 748; see also Transcript of Proceedings, Arizona v.
        Johnson, 2008 U.S. Trans. LEXIS 81, at *23 (Dec. 9, 2008) (Stevens,
        J.) (noting at oral argument that the request to do away with the first
        Terry factor was “a rather extreme position”). The Court did not do
        so, and decisions issued after Johnson have uniformly held that
        reasonable suspicion of criminal activity is required to justify a stop
        and frisk. See, e.g., Liberal, 632 F.3d at 1079; Commonwealth v.
        Narcisse, 927 N.E. 2d 439, 445-46 (Mass. 2010) (“we state expressly
        that police officers may not escalate a consensual encounter into a
        protective frisk absent a reasonable suspicion that an individual has
        committed, is committing, or is about to commit a criminal offense
        and is armed and dangerous” (emphasis omitted)); State v. Dean, 214


                                          -37-
        P.3d 1190, 1194 (Kan. App. 2009) (“[A]n officer must be able to
        point to specific, articulable facts to support reasonable suspicion for
        both the stop and the frisk. Johnson, 555 U.S. at ___, 129 S. Ct. at
        787. Here, the district court failed to apply this dual requirement
        when it found [defendant’s] pat-down was justified by officer safety
        concerns but did not determine whether [defendant’s] initial detention
        was justified by reasonable suspicion that [defendant] was engaged
        in criminal activity.” (emphasis in original)); United States v.
        Dorlette, 706 F. Supp. 2d 290, 298 (D. Conn. 2010) (“[A]n officer
        may ‘act instantly on reasonable suspicion that the persons
        temporarily detained are armed and dangerous’ by conducting ‘a
        limited search of outer clothing for weapons,’ but only if the officer
        has ‘already lawfully stopped’ the person pursuant to ‘suspicion
        (reasonably grounded, but short of probable cause) that criminal
        activity is afoot.’ Johnson, 129 S. Ct. at 786.” (emphasis in original));
        see also United States v. Jones, 606 F.3d 964, 966 (8th Cir. 2010)
        (“the government leaped to the officer safety rationale for a protective
        frisk for weapons, ignoring the mandate in Terry that there must be
        reasonable suspicion of on-going criminal activity justifying a stop
        before a coercive frisk may be constitutionally employed” (emphasis
        omitted)).
¶ 114       Notably, the only authority Justice Thomas cites that postdates
        Johnson is a dissent which does not mention that case. Supra ¶ 75
        (Thomas, J., specially concurring) (citing United States v. House, 463
        F. App’x 783, 793 (10th Cir. 2012) (Baldock, J., dissenting)). A
        single dissent’s position on an issue does not make that issue “hotly
        contested.”
¶ 115       The Supreme Court has made clear that two conditions must be
        met for a stop and frisk to comport with the fourth amendment, not
        one. Johnson, 555 U.S. at 326. This two-part rule is the rule we must
        apply here.
¶ 116       Lastly, advancing an additional argument not raised by the State,
        Justice Thomas contends “that this encounter began as a perfectly
        proper exercise of the police’s community caretaking function.”
        Supra ¶ 76 (Thomas, J., specially concurring). This contention is
        incorrect. As this court has explained, the community caretaking
        doctrine “ ‘is invoked to validate a search or seizure as reasonable
        under the fourth amendment’ ” where law enforcement officers are
        performing some function other than the investigation of criminal
        activity. People v. McDonough, 239 Ill. 2d 260, 270 (2010) (quoting


                                          -38-
        People v. Luedemann, 222 Ill. 2d 530, 548 (2006)); see generally 4
        Wayne R. LaFave, Search and Seizure 9.2(b), at 382-88 (5th ed.
        2012). Thus, when one states that a police officer is engaged in
        community caretaking, that statement means that the officer has, in
        fact, seized someone. The seizure must then be justified for reasons
        that have nothing to do with the investigation of criminal activity,
        such as, for example, when a police officer sees a person slumped
        over unconscious on a park bench and has to seize that person in
        order to provide assistance.
¶ 117        Here, the circuit court expressly held that the police officers’
        initial approach to defendant’s car was a consensual encounter, not a
        seizure. Neither party challenges this holding and Justice Thomas
        does not contend that it is incorrect. Accordingly, because there was
        no seizure, the community caretaking doctrine “is not relevant” to
        analyzing the propriety of the initial approach by the officers to the
        car. McDonough, 239 Ill. 2d at 271. Moreover, the State has
        acknowledged that when defendant was, in fact, seized, i.e., when he
        was ordered out of the car, the officers were engaged in the
        investigation of criminal activity. Thus, the community caretaking
        doctrine plays no role in this case.

¶ 118                                      V
¶ 119       The majority cites a number of cases which discuss the second
        prong of Terry and the propriety of conducting protective frisks when
        a defendant has been lawfully seized and the first prong of Terry has
        been satisfied. Supra ¶ 60. I express no opinion on the correctness of
        those decisions. My opinion in this case is limited solely to the
        conclusion that the police officers lacked reasonable suspicion of
        criminal activity at the time they seized defendant and, thus, the first
        condition for establishing the constitutionality of a stop and frisk
        under Terry was not met. See Johnson, 555 U.S. at 326.

¶ 120                                   VI
¶ 121       The majority is critical of me for examining the legality of
        defendant’s seizure, pointing out that “neither lower court based its
        judgments” on the lack of reasonable suspicion of criminal activity in
        this case. (Emphasis omitted.) Supra ¶ 54. But that is exactly my
        point. Neither the circuit court nor the appellate court made any
        determination as to whether the police officers had reasonable,


                                         -39-
        articulable suspicion of criminal activity at the time defendant was
        ordered out of his car. This court, too, has made no determination on
        this issue, having found that defendant conceded the existence of
        reasonable suspicion of criminal activity. Thus, the majority upholds
        the legality of the search of defendant’s person and his car despite the
        fact that the fourth amendment requires reasonable suspicion of
        criminal activity to justify a stop and frisk (see Johnson, 555 U.S. at
        326); despite the fact that defendant has argued there was nothing that
        “would give rise to suspicion of criminal activity” in this case; and
        despite the fact that no court has held that such suspicion existed.
        This is wrong.
¶ 122       Because the police officers in this case lacked any reasonable
        suspicion of criminal activity on the part of defendant, the stop and
        frisk of defendant was constitutionally impermissible. Accordingly,
        I would affirm the judgment of the appellate court that all of the
        evidence obtained through the searches in this case should have been
        suppressed. I therefore respectfully dissent.

¶ 123      JUSTICE FREEMAN joins in this dissent.

                 Dissenting Opinion Upon Denial of Rehearing

¶ 124       JUSTICE BURKE, dissenting:
¶ 125       As I noted in my previous dissent, the validity of a stop and frisk
        is “constitutionally permissible if two conditions are met. First, the
        investigatory stop must be lawful. That requirement is met in an on-
        the-street encounter, Terry determined, when the police officer
        reasonably suspects that the person apprehended is committing or has
        committed a criminal offense. Second, to proceed from a stop to a
        frisk, the police officer must reasonably suspect that the person
        stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323,
        326-27 (2009). In this case, defendant argued in his brief that the
        officers’ actions amounted to an “unlawful seizure,” that the officers
        “could not reasonably believe a crime was being committed,” and that
        “Terry does not support the officers’ conduct because the surrounding
        circumstances in this case were ‘absolutely benign.’ ” Supra ¶¶ 29,
        30, 56. Thus, defendant clearly maintained that the factual
        circumstances did not amount to reasonable suspicion of criminal



                                         -40-
        activity pursuant to Terry and, thus, did not justify his initial stop or
        seizure.
¶ 126       The majority, however, ignored defendant’s argument regarding
        the illegality of his seizure. Instead, they accepted a “concession”
        made by defense counsel during oral arguments when he offered
        contradictory answers in response to a question from the bench.
        Counsel first stated that the officers could, under Terry, order
        defendant from his car. Immediately afterward, counsel argued that
        the police could only “ask” defendant out of the car and perform a
        “Terry-like inquiry.” Counsel later responded “yes” when a justice
        asked whether officers had a right to a pat-down search under Terry.
        This court did not ask defense counsel to clarify his position or to
        address whether defendant intended to abandon the position argued
        in his brief.
¶ 127       As my dissent stated, my view is that it was inappropriate for this
        court to take counsel’s conflicting statements made to the bench as a
        binding concession on an issue of law. Moreover, the majority’s
        decision failed to recognize defense counsel’s many statements
        during oral arguments that there was “no criminal activity” in this
        case and “nothing that would give rise to suspicion of any criminal
        activity.” The majority erroneously accepted as valid only those
        statements which appeared to concede the legality of the seizure,
        while ignoring the many statements establishing that the officers
        lacked a reasonable suspicion of criminal activity which would
        warrant the seizure.
¶ 128       Defendant now clarifies in his petition for rehearing that he had
        no intention of conceding the legality of his seizure. Rather, he asserts
        that he has “consistently maintained that the factual situation did not
        give rise to being characterized as a Terry stop.” (Emphasis added.)
        Defendant states that, during oral arguments, his counsel’s intent was
        to present an alternative argument in the event that the court upheld
        the application of Terry to this case. The alternative argument counsel
        meant to pose to the court was that, even if Terry applied, the
        “conduct of the officers far exceeded what was reasonable under the
        circumstances.” Defendant further reiterates in his petition the
        argument presented in his brief that the surrounding circumstances
        did not justify the officers’ seizure under Terry.
¶ 129       I believe that it is improper for this court to avoid reaching an
        issue of law based on a concession that defendant clearly never
        intended to make. Because the rehearing stage is defendant’s first

                                          -41-
opportunity to address the court’s finding that he conceded a crucial
point of law, I would allow rehearing to address defendant’s argument
that the initial seizure of his person was illegal under Terry.




                                -42-
