                             NO. 4-06-0378     Filed 7/31/07

                      IN THE APPELLATE COURT

                              OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Livingston County
RIO P. KEYS,                           )    No. 05CF219
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Harold J. Frobish,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE McCULLOUGH delivered the opinion of the court:

          In March 2006, the trial court convicted defendant, Rio

P. Keys, of unlawful possession of a controlled substance

(heroin) (720 ILCS 570/402(c) (West 2004)) and obstructing a

peace officer (720 ILCS 5/31-1(a) (West 2004)).   In April 2006,

the court sentenced defendant to a six-year prison term on the

unlawful possession count.    Defendant appeals, arguing the court

erred in denying his motion to suppress the evidence recovered as

the result of his unconstitutional temporary seizure and pat-down

search.   The State argues that (1) the temporary seizure and pat-

down search were constitutionally valid; and, even if the

defendant's initial seizure was unconstitutional, (2) defendant's

actions of running from the police and abandoning the illegal

drugs made them admissible.    We affirm.

          As the parties are aware of the facts in this case, we

discuss those facts only to the extent necessary to resolve the
issue in this case.   Between approximately 8 and 8:30 a.m. on

August 24, 2005, a black vehicle with four black males inside

pulled up alongside Sergeant Jim Roberts.    One of the black males

stuck a cell phone out the window of the vehicle and took a

picture of Sergeant Roberts.    Not long thereafter, a man informed

the police that four black males in a black vehicle approached

him asking where they could find Willie B. Smith and Amory

Millsap.   The police knew Willie B. Smith and Amory Millsap as

drug users.

           Sergeant Roberts found the taking of his photograph

suspicious and informed the other police officers on duty of the

incident at the 3 p.m. shift change.    Approximately one hour

after the shift change, at about 4 p.m., Officer Robert Bohm saw

Willie Smith with two black males in his vehicle, one of whom was

the defendant and the other was Tremaine Moore.    After Officer

Bohm began following Smith, Smith voluntarily parked his vehicle

and Smith and his two companions voluntarily got out of the

vehicle.   Officer Bohm asked Smith if the two men with him had

been looking for him earlier.   Smith said they had.

           Officer John Cox arrived on the scene about this time.

Smith told Officer Cox that defendant and Moore had been dropped

off by two other black males earlier and they were going to a

party for a friend of theirs who was leaving for Iraq.    Smith

also told Officer Cox defendant and Moore were from the Kankakee


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area.    Officer Bohm asked defendant and the other black male for

their names and dates of birth and ran a warrant check on their

names.    Neither individual had any outstanding warrants.

Defendant had on a very baggy T-shirt and baggy pants.       Officer

Cox testified defendant was "pretty beefy" and looked like he

could fight if he so chose.

            Officer Bohm asked Moore for consent to do a pat-down

search.    Moore consented.   Officer Cox did not ask defendant's

consent to do a pat-down search.     Officer Cox asked defendant if

he had anything on him.    Defendant replied he did not.     Officer

Cox then told defendant to raise his hands above him and

interlace his fingers, which defendant did.       Defendant also

spread his legs for Officer Cox.     Officer Cox then put his right

hand on defendant's interlaced fingers.       At that point, defendant

broke free and ran.    While Officer Cox was chasing defendant, he

lost sight of defendant for a few seconds before apprehending

him.    Officer Cox went back and looked in the area where he lost

sight of defendant and found three bags containing heroin.         The

trial court denied defendant's motion to suppress these drugs.

            A trial court's ruling on a motion to suppress presents

a mixed question of law and fact.        People v. Pitman, 211 Ill. 2d

502, 512, 813 N.E.2d 93, 100 (2004).       We will not disturb a trial

court's findings of fact unless they are against the manifest

weight of the evidence, but the ultimate legal determination as


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to whether the motion to suppress should have been granted based

on the court's factual findings is a question of law, which we

review de novo.   Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 100-

01.   Defendant contests neither the facts to which the police

officers testified at the suppression hearing nor their

credibility.   Defendant only argues that the trial court erred in

finding the police did not violate his constitutional rights by

seizing him and performing a pat-down search of his person based

on the facts to which the officers testified.   As a result, we

review this case de novo.   We may affirm the circuit court's

judgment on any basis established by the record.   People v.

Johnson, 208 Ill. 2d 118, 129, 803 N.E.2d 442, 449 (2003).

           We first examine the State's argument that the drugs

were admissible because defendant resisted a police officer and

then abandoned the drugs while he was running from that police

officer.   Evidence discovered as a result of an unconstitutional

Terry stop must generally be excluded.   See Terry v. Ohio, 392

U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).   However,

according to the State, even assuming arguendo that the police

officers did not have a reasonable suspicion to seize and pat

down defendant, the drugs were still admissible.   According to

the State, the drugs in this case were not obtained through the

exploitation of the seizure and attempted pat down but were

discovered as a result of defendant escaping from the police


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officers and abandoning the drugs.      As a result, according to the

State, the drugs are admissible regardless of whether the initial

seizure and attempted pat-down search were constitutional.

          The State primarily relies on the Supreme Court of

Nevada's decision in State v. Lisenbee, 116 Nev. 1124, 13 P.3d

947 (2000), to support its argument that the drugs should be

admissible.   However, dicta from the United States Supreme

Court's opinion in California v. Hodari D., 499 U.S. 621, 113 L.

Ed. 2d 690, 111 S. Ct. 1547 (1991), which was relied on in part

by the Nevada Supreme Court in Lisenbee, is even more persuasive.

In Hodari, the Court stated:

                "To say that an arrest is effected by

          the slightest application of physical force,

          despite the arrestee's escape, is not to say

          that for [f]ourth [a]mendment purposes there

          is a continuing arrest during the period of

          fugitivity.   If, for example, [Officer]

          Pertoso had laid his hands upon Hodari to

          arrest him, but Hodari had broken away and

          had then cast away the cocaine, it would

          hardly be realistic to say that [the]

          disclosure had been made during the course of

          an arrest.    Cf. Thompson v. Whitman, [85

          U.S.] (18 Wall.) 457, 471[, 21 L. Ed. 897,


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           902] (1874) ('A seizure is a single act, and

           not a continuous fact')."    (Emphasis in

           original.)   Hodari, 499 U.S. at 625, 113 L.

           Ed. 2d at 696-97, 111 S. Ct. at 1550.

Applying the Court's reasoning, we find it unrealistic in our

case to say defendant abandoned the drugs in question during his

seizure.

           In Lisenbee, the police were looking for a burglary

suspect and observed the defendant, who resembled the suspect.

Lisenbee, 116 Nev. at 1124, 13 P.3d at 948.     The police officers

approached the defendant and asked for identification.      The

defendant produced identification from a Colorado prison.

Lisenbee, 116 Nev. at 1126, 13 P.3d at 948-49.     The defendant

then voluntarily lifted up his T-shirt to show the police

officers a small legal knife and a cell phone clipped to his

belt.   Lisenbee, 116 Nev. at 1126, 13 P.3d at 949.    One of the

police officers tried to grab the knife and hold the defendant's

arm so that a pat-down search could be performed.      Lisenbee, 116

Nev. at 1126, 13 P.3d at 949.

           The officers and the defendant started fighting, and

the defendant ran from the officers.     The defendant was then

tackled, but he got away again.   The officers lost sight of the

defendant for awhile.   He was eventually found lying on the

ground and voluntarily submitted to police custody.       Lisenbee,


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116 Nev. at 1126, 13 P.3d at 949.        The officers then retraced

the defendant's path and found a large bag containing five

smaller bags of methamphetamine.     Lisenbee, 116 Nev. at 1126, 13

P.3d at 949.    The defendant argued that the drugs were

inadmissible as they were illegally obtained by the police

because the police officers' actions in detaining the defendant

and grabbing for his knife amounted to an illegal seizure.

          The Supreme Court of Nevada found the defendant's

initial detention by the police was unreasonable.       Lisenbee, 116

Nev. at 1129, 13 P.3d at 950.    However, the Lisenbee court went

on to state that "flight after a seizure occurs is an effectual

end to that seizure.    Thus, any conduct during flight should be

considered apart from the illegal police action."       Lisenbee, 116

Nev. at 1130, 13 P.3d at 951.    As a result, the court found the

drugs the defendant abandoned after he broke free and ran from

the police officers were not obtained in violation of the fourth

amendment.     Lisenbee, 116 Nev. at 1130, 13 P.3d at 951.    We agree

with this reasoning and find the drugs in this case were

admissible as evidence even assuming arguendo the initial seizure

of defendant was unlawful.

          Defendant argues we should not follow Lisenbee because

it is based on reasoning that has been consistently rejected by

Illinois courts and because it is based on a Nevada statute that

is different from Illinois law.    All the Illinois cases defendant


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cites in an attempt to show the reasoning in Lisenbee is not in

accord with Illinois case law, as well as the majority of the

other state and federal decisions cited, are distinguishable from

the instant case because the defendants in those cases abandoned

their drugs while they were seized by the police.   See People v.

Roebuck, 25 Ill. 2d 108, 110, 183 N.E.2d 166, 168 (1962)

("Immediately following the arrest, as one of the officers was

attempting to search [the] defendant, the other officer saw [the]

defendant throw an object into a parked car.   The object was

retrieved and was later identified as heroin"); People v. Wilson,

141 Ill. App. 3d 156, 158, 490 N.E.2d 701, 702 (1986) (First

District, "the arresting officer testified that [the] defendant

was stopped, and, as the officers exited their car with guns

drawn, [the] defendant dropped the duffel bag he was carrying and

raised his hands"); People v. Cox, 295 Ill. App. 3d 666, 673, 693

N.E.2d 483, 487 (1998) (Fourth District, "the manifest weight of

the evidence established that [the] defendant was stopped, asked

to place his hands on the squad car, warned he was going to be

searched for the wallet, and then attempted to discard the

cocaine"); United States v. Beck, 602 F.2d 726, 729-30 (5th Cir.

1979) (after the stop was made, and while the police officer was

pulling his squad car in front of the vehicle the defendant was

in, the police officer saw a marijuana cigarette thrown from the

defendant's window); Commonwealth of Pennsylvania v. Jackson, 548


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Pa. 484, 486, 698 A.2d 571, 572 (1997) (court answered in the

negative "the question of whether an article abandoned by the

appellant during the course of the stop and frisk may be

admissible into evidence"); State v. Bennett, 430 A.2d 424, 426

(R.I. 1981) (the defendant dropped paper bag containing marijuana

to the ground after police told him to stop because they wanted

to talk to him); State v. Dineen, 296 N.W.2d 421, 422 (Minn.

1980) (the defendant fled from site of seizure but left drugs

there at the site of the seizure).

          In the case at bar, the drugs were not found by the

police during the initial, arguably unlawful, seizure.   They were

found because defendant abandoned them after ending the initial

seizure by escaping from the police officers.   Defendant cites

People v. Moore, 286 Ill. App. 3d 649, 676 N.E.2d 700 (1997)

(Third District), for the proposition that he did not violate any

law by escaping from the police officers.   We find Moore

inapplicable to this case.   First, Moore does not stand for the

proposition that a suspect who has been seized unlawfully by

police officers can resist that seizure and escape from the

police officers without violating any laws.   Second, whether

defendant violated any law by escaping from the police officer is

irrelevant in this case.   Rather, another fact is relevant:    that

he ended the seizure by escaping from the police officer before

he abandoned the drugs in question.


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          Based on our analysis, we need not determine if the

initial seizure in this case was lawful.   While unnecessary to

our decision in this case, we note that we agree with the Nevada

Supreme Court's statement that public policy "supports courts of

law determining the lawfulness of seizures or arrests," rather

than suspected criminals on the street making those

determinations.   Lisenbee, 116 Nev. at 1130, 13 P.3d at 951.

This policy benefits both the State and defendants.   The State

benefits by keeping police officers from having to engage in

dangerous pursuits, and the defendants benefit because they can

move to suppress evidence found during an illegal seizure.   For

example, in the instant case, if the police officers had found

the drugs on defendant's person during the initial seizure and

this court agreed that the initial seizure was unlawful, the

drugs would have been inadmissible.

          For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we award the State its $75

statutory assessment as cost of this appeal.

          Affirmed.

          MYERSCOUGH and TURNER, JJ., concur.




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