                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                             People v. Leach, 2011 IL App (4th) 100542




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                      DANIEL L. LEACH, Defendant-Appellee.



District & No.               Fourth District
                             Docket No. 4-10-0542


Filed                        June 30, 2011
Rehearing denied             July 29, 2011
Held                         Where defendant was validly stopped for a suspected curfew violation
(Note: This syllabus         and the officers asked for consent to search after the stop had concluded
constitutes no part of the   without the issuance of any curfew violation, defendant’s consent to the
opinion of the court but     search of his person was voluntary and the trial court erred in granting
has been prepared by the     his motion to suppress the cannabis found in his possession, since the
Reporter of Decisions for    absence of any Mendenhall factors, that is, a threatening presence of
the convenience of the       several officers, the display of a weapon, physical touching, or the use
reader.)                     of language or tone of voice indicating that compliance with an officer’s
                             request might be compelled, supported the conclusion that defendant
                             consented voluntarily.


Decision Under               Appeal from the Circuit Court of Livingston County, No. 10-CF-18; the
Review                       Hon. Jennifer H. Bauknecht, Judge, presiding.



Judgment                     Reversed and remanded.
Counsel on                 Thomas J. Brown, State’s Attorney, of Pontiac (Patrick Delfino, Robert
Appeal                     J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.

                           Michael J. Pelletier, Karen Munoz, and John M. McCarthy, all of State
                           Appellate Defender’s Office, of Springfield, for appellee.


Panel                      JUSTICE McCULLOUGH delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Knecht concurred in the judgment and opinion.
                           Justice Pope dissented, with opinion.




                                            OPINION

¶1          In April 2010, following a hearing, the trial court granted defendant Daniel L. Leach’s
        motion to suppress evidence in his prosecution for possession of cannabis. The State brings
        this interlocutory appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1,
        2006), arguing the court erred in granting defendant’s motion to suppress as defendant
        validly consented to the search resulting in the seizure of the evidence. We agree with the
        State and reverse.
¶2          The evidence at defendant’s suppression hearing consisted of testimony by Livingston
        County sheriff’s police officer Brad DeMoss. DeMoss testified he and another officer, named
        Fitzpatrick, conducted an investigatory stop of defendant on January 14, 2010. On that date,
        late at night, the officers were patrolling a residential area in an unmarked squad car when
        they saw defendant walking. The officers stopped defendant, suspecting he was violating
        curfew by being out after 11 p.m. and under age 17.
¶3          Defendant was initially approached by DeMoss alone. DeMoss asked defendant for his
        name and identification, which showed defendant was 19 years old. Fitzpatrick ran
        defendant’s identification card for outstanding warrants and found none. When asked at the
        suppression hearing whether defendant’s identification card was returned to him following
        this warrant check, DeMoss testified, “I believe so.” Fitzpatrick then asked defendant
        whether he had ever been arrested. Defendant explained he had been arrested once in
        connection with a drug raid that occurred at his mother’s house. At that point, DeMoss asked
        defendant “if he would mind if” DeMoss searched him. According to DeMoss, defendant
        responded, “[N]o, go ahead.” The ensuing search resulted in DeMoss’s discovery of cannabis
        in defendant’s possession.
¶4          On appeal, the State challenges the trial court’s judgment granting defendant’s motion


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     to suppress. In general, in an appeal from a trial court’s suppression ruling, we employ a two-
     part standard of review. People v. Oliver, 236 Ill. 2d 448, 454, 925 N.E.2d 1107, 1110
     (2010). “The trial court’s factual findings are entitled to great deference, and we will reverse
     them only if they are against the manifest weight of the evidence.” Id. “The trial court’s
     ultimate legal ruling on whether suppression is warranted, however, is reviewed de novo.”
     Id. De novo review is also appropriate “where the facts and witness credibility are not in
     dispute.” People v. Roberts, 374 Ill. App. 3d 490, 495, 872 N.E.2d 382, 387 (2007).
¶5        The State claims the search leading to defendant’s arrest was conducted pursuant to his
     consent. A defendant’s voluntary consent to be searched is a recognized substitute for a
     warrant issued upon probable cause, which is ordinarily required of a valid search.
     Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Where the State claims a search is
     supported by a defendant’s consent, the State has the burden of showing the consent was
     voluntarily given. Id. at 222.
¶6        “[A]n officer is always free to request permission to search.” People v. Brownlee, 186
     Ill. 2d 501, 515, 713 N.E.2d 556, 563 (1999). A defendant’s consent given while or after he
     is unlawfully seized, however, may be found to be tainted by the seizure’s illegality. Florida
     v. Royer, 460 U.S. 491, 500 (1983) (plurality op.). Once a seizure is concluded and the
     defendant is free to discontinue his encounter with the police, a defendant’s voluntary
     consent to be searched may be obtained unless he is unlawfully seized anew. People v.
     Cosby, 231 Ill. 2d 262, 276, 898 N.E.2d 603, 612 (2008) (“The relevant question [in these
     consolidated cases] is whether the officers’ actions after the initial traffic stops had
     concluded constituted a second seizure of either defendant.”). This is true because, absent
     an unlawful seizure, officers may generally request an individual’s consent to a search even
     without a basis for individualized suspicion. Florida v. Bostick, 501 U.S. 429, 434-35
     (1991); see also People v. Ramsey, 362 Ill. App. 3d 610, 621, 839 N.E.2d 1093, 1103 (2005)
     (“[A]n officer is free to request permission to search the car after the conclusion of [a] traffic
     stop so long as the officer does not unlawfully detain the car or its occupants prior to
     requesting permission.”).
¶7        A person is seized when, by means of physical force or a show of authority, the person’s
     freedom of movement is restrained. United States v. Mendenhall, 446 U.S. 544, 553 (1980)
     (opinion of Stewart, J., joined by Rehnquist, J.). A seizure occurs “only if, in view of all of
     the circumstances surrounding the incident, a reasonable person would have believed that he
     was not free to leave.” Id. at 554 (opinion of Stewart, J., joined by Rehnquist, J.); see also
     People v. Gherna, 203 Ill. 2d 165, 178, 784 N.E.2d 799, 807 (2003) (clarifying this analysis
     presumes “a reasonable innocent person under identical circumstances”).
¶8        Courts considering whether a seizure has occurred test for the presence of the
     “Mendenhall factors.” See People v. Murray, 137 Ill. 2d 382, 390, 560 N.E.2d 309, 313
     (1990) (adopting the Mendenhall factors), overruled in part on other grounds by People v.
     Luedemann, 222 Ill. 2d 530, 548, 857 N.E.2d 187, 199 (2006). The Mendenall factors are
     “(1) the threatening presence of several officers; (2) the display of a weapon by an officer;
     (3) some physical touching of the person of the citizen; and (4) the use of language or tone
     of voice indicating that compliance with the officer’s request might be compelled.”
     Luedemann, 222 Ill. 2d at 553, 857 N.E.2d at 201.

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¶9         While the Mendenhall factors are not exhaustive and “a seizure can be found on the basis
       of other coercive police behavior that is similar to the Mendenhall factors” (id. at 557, 857
       N.E.2d at 203), “[i]n the absence of some such evidence, otherwise inoffensive contact
       between a member of the public and the police cannot, as a matter of law, amount to a
       seizure of that person” (emphasis and internal quotation marks omitted) (id. at 553, 857
       N.E.2d at 201). “From the very minute the Mendenhall factors were created, courts have used
       their absence to determine that seizures had not occurred.” Id. at 554, 857 N.E.2d at 202; see
       also id. at 553-54, 857 N.E.2d at 201-02 (collecting cases that found no seizure had occurred
       in the absence of the Mendenhall factors).
¶ 10       In this case, the parties initially disagree whether the investigatory stop of defendant for
       a possible curfew violation had ended or been unlawfully prolonged when DeMoss requested
       defendant’s consent to be searched. We note the parties agree the stop was valid and the
       officers were authorized to request defendant’s identification and run a warrant check.
¶ 11       The State argues the stop of defendant concluded when his identification card was
       returned to him after the warrant check was performed. We agree. Initially, the parties contest
       whether the evidence supports a conclusion that defendant’s identification card was returned
       to him. We agree with the State that the card was returned. When asked about the card,
       DeMoss testified he believed it was returned when the warrant check was completed.
       Defendant did not contradict this testimony. Absent a specific finding by the trial court to the
       contrary, or a finding that DeMoss lacked credibility, this response was sufficient to establish
       that the officers handed defendant his identification card following the warrant check.
¶ 12       The issue of when an investigatory stop ends arises most frequently in the context of
       traffic stops. Generally, a traffic stop ends when the paperwork of the driver and any
       passengers has been returned to them and the purpose of the stop has been resolved. See
       Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612 (“The requests for consent to search in both of
       the instant cases followed the officers’ returning of the defendants’ paperwork. At that point,
       the traffic stops came to an end.”); see also Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 565
       (“This traffic stop concluded when *** [the officer] returned to the driver his license and
       insurance card, and explained that no citations would be issued.”). Applying this rule to the
       instant case, the investigatory stop ended when defendant’s identification card was returned
       to him and the officers concluded he would not be cited for a curfew violation. At that point,
       a reasonable person in defendant’s circumstances would have believed he was free to go. See
       Ramsey, 362 Ill. App. 3d at 617, 839 N.E.2d at 1100 (finding no evidence suggested
       defendant should not have felt he was free to leave when the traffic stop concluded); see also
       Ohio v. Robinette, 519 U.S. 33, 39-40 (1996) (holding the fourth amendment does not
       require an officer to advise a lawfully seized defendant he is free to go before a subsequent
       search will be deemed voluntary).
¶ 13       Thus, the relevant question is whether the officers’ actions after the stop had ended
       constituted a subsequent seizure of defendant. Here, three of the four Mendenhall factors
       were clearly absent. While two officers were involved in the stop, “the presence of only two
       officers, without more, is not a factor that would indicate a seizure occurred.” Cosby, 231 Ill.
       2d at 278, 898 N.E.2d at 613. Further, nothing in the record indicates that either officer
       touched defendant or displayed a weapon.

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¶ 14       With respect to the fourth factor, the trial court found DeMoss used a coercive tone or
       body language to convey to defendant that he was not free to leave. However, this finding
       is against the manifest weight of the evidence. The court based its finding on DeMoss’s
       testimony that, while Fitzpatrick was checking defendant’s identification for outstanding
       warrants, defendant was not free to leave. This testimony is consistent with the parties’
       agreement that defendant remained validly seized during the warrant check. DeMoss was
       never asked explicitly whether he believed defendant was not free to leave after his
       identification was returned to him or when he was asked to consent to the search. DeMoss
       testified he never told defendant he was not free to leave. The evidence does not support an
       inference that DeMoss continued to believe defendant was not free to go after defendant’s
       identification was returned to him.
¶ 15       Further, no evidence supported the trial court’s factual finding that DeMoss’s actions or
       tone conveyed to defendant that his compliance with the request for consent could have been
       coerced. DeMoss testified he asked defendant “if he would mind if” DeMoss searched him.
       The court made no finding that DeMoss was an incredible witness or that his characterization
       of the request was unbelievable or inaccurate. Absent actual evidence that DeMoss used
       coercive language or a compelling tone, the court was not permitted to infer the presence of
       this factor. See Oliver, 236 Ill. 2d at 457, 925 N.E.2d at 1112 (rejecting the defendant’s
       contention that the court should infer the officer’s use of compelling language absent any
       evidence of such use). Accordingly, we conclude the fourth Mendenhall factor was absent
       from this case.
¶ 16       The absence of the Mendenhall factors indicates a likelihood that defendant’s consent to
       be searched was voluntary. See Luedemann, 222 Ill. 2d at 554, 857 N.E.2d at 202
       (“Obviously, a seizure is much less likely to be found when officers approach a person in
       such an inoffensive manner” as when none of the Mendenhall factors are present.).
       Nevertheless, defendant notes other circumstances on which the trial court relied in finding
       defendant involuntarily consented to the search. Specifically, defendant emphasizes he “was
       a young man; he was walking down the street late at night; he was approached by a police
       officer who was investigating a potential curfew violation which made the initial detention
       valid; the officers took his identification and ran a warrant check; and he was being
       questioned while standing next to a police car ‘with two officers by him.’ ” While these
       circumstances are not irrelevant to the question of the voluntariness of defendant’s consent
       (Mendenhall, 446 U.S. at 558 (opinion of Stewart, J., joined by Rehnquist, J.)), courts have
       found the presence of similar circumstances does not outweigh the absence of the
       Mendenhall factors. For example, in Cosby, 231 Ill. 2d at 279, 898 N.E.2d at 614, the
       supreme court found a defendant’s consent was voluntarily given as none of the Mendenhall
       factors was present, despite the following circumstances relied upon by that defendant: “(1)
       the presence of two officers; (2) the stop took place in the early morning hours in a deserted
       and poorly lit locale; and (3) the officers’ ‘double teaming’ of Cosby at his car at the time of
       the request.” Similarly, in Mendenhall, 446 U.S. at 558 (opinion of Stewart, J., joined by
       Rehnquist, J.), a majority of the Supreme Court found, in light of the absence of the factors,
       the defendant was not seized even though she was 22 years old, had not been graduated from
       high school, and was a black woman and, it was argued, “may have felt unusually threatened

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       by the officers, who were white males.” See also id. at 560 (Powell, J., concurring in part and
       concurring in the judgment, joined by Burger, C.J., and Blackmun, J.) (concurring with this
       part of the lead opinion). Accordingly, we conclude the circumstances cited by defendant in
       this case are insufficient to find a seizure occurred in the absence of the Mendenhall factors.
¶ 17       Finally, we conclude this court’s decision in People v. Chestnut, 398 Ill. App. 3d 1043,
       921 N.E.2d 811 (2010), which the trial court found controlling and on which defendant relies
       in this appeal, is inapposite. In that case, the defendant approached a house while it was
       being searched pursuant to a warrant based on reports of drug activity there. Id. at 1044-45,
       921 N.E.2d at 814. The defendant entered an enclosed porch where two officers were
       stationed to provide security during the search. Id. at 1045, 921 N.E.2d at 814-15. After some
       conversation and questioning between the defendant and the officers, one officer asked for
       and received the defendant’s consent to be searched. Id., 921 N.E.2d at 815. The officers
       found crack cocaine in the defendant’s possession. Id. at 1046, 921 N.E.2d at 816. On appeal,
       this court held the defendant’s consent was tainted by the initial illegality of the officers’
       seizure. Id. at 1054, 921 N.E.2d at 822.
¶ 18       Here, the parties agree the initial stop of defendant was valid. Chestnut is, thus, irrelevant
       to our analysis. As stated, the valid investigatory stop in this case concluded when the
       officers returned defendant’s identification card to him. The officers’ actions following the
       conclusion of the stop did not constitute a seizure. Defendant’s consent to the search was,
       therefore, voluntarily given. Accordingly, the trial court erred by granting defendant’s motion
       to suppress.
¶ 19       For the reasons stated, we reverse the judgment of the trial court granting defendant’s
       motion to suppress and remand for further proceedings not inconsistent with this opinion.

¶ 20       Reversed and remanded.

¶ 21       JUSTICE POPE, dissenting:
¶ 22       I respectfully dissent. Here a young person, not violating any law, was stopped by the
       police while walking down the street of his own town. I agree with the majority the original
       stop was a lawful Terry stop (see Terry v. Ohio, 392 U.S. 1 (1968)), because defendant
       appeared youthful and the police suspected a curfew violation. However, defendant produced
       identification showing he was nearly 20 years old and lived in Streator, the town where he
       was detained. Two officers were at the scene and while defendant was detained by one of the
       officers, the other officer checked for outstanding warrants. Finding none, the officer was
       asked by defense counsel “at that point in time, was he allowed to proceed on his way.” The
       officer answered “no.”
¶ 23       In other words, the officers determined defendant’s identity, determined he was not
       subject to the curfew laws, and determined there were no outstanding arrest warrants for the
       defendant. At this point, the detention should have ceased. Rather than telling defendant he
       was free to go, rather than getting into the squad car and driving away, the officer testified
       defendant was not allowed to proceed on his way. Instead, the officers questioned defendant
       about whether he had ever been arrested. Apparently, during the check of defendant’s

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identification, officer Fitzpatrick determined defendant had a prior arrest, the date of which
is not in the record. To his credit, when asked about any prior arrest, the defendant answered
the question truthfully. With two police officers standing with defendant outside the squad
car, at a time when the officer admitted defendant would not have been allowed to proceed
away, and at a time when the reasonable suspicion for the curfew stop had dissolved, the
police continued to interrogate defendant about prior criminal activity and sought consent
to search defendant. In my opinion, defendant was unlawfully detained at that point, and the
consent to search was tainted. I would therefore affirm the trial court’s order suppressing the
results of the search.




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