                                  Illinois Official Reports

                                          Appellate Court



                             People v. Slaymaker, 2015 IL App (2d) 130528



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ANTHONY SLAYMAKER, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-13-0528


Filed                        February 3, 2015


Held                         Defendant’s conviction for resisting a peace officer was reversed on
(Note: This syllabus         the ground that the officer was not engaged in an authorized act at the
constitutes no part of the   time and could not pat him down for weapons while he was in the
opinion of the court but     course of a community-caretaking encounter, since the officer
has been prepared by the     observed defendant walking in the paved portion of a highway
Reporter of Decisions        median, defendant did not appear to be in distress, he said he was
for the convenience of       going to McDonalds, but when he began to put his hand in his pocket,
the reader.)                 the officer thought he was reaching for a weapon and then grabbed
                             defendant and advised him he wanted to pat him down for weapons
                             and ultimately tased and handcuffed him, but the innocuous act of
                             attempting to put his hand in his pocket, standing alone, did not give
                             rise to a reasonable suspicion of criminal activity on defendant’s part
                             or the presence of a weapon, regardless of the fact that defendant’s
                             pockets were bulging, especially when the officer was not
                             investigating any crime or had a reasonable suspicion that defendant
                             had a weapon.


Decision Under               Appeal from the Circuit Court of Winnebago County, No.
Review                       11-CM-3696; the Hon. John S. Lowry, Judge, presiding.



Judgment                     Reversed.
     Counsel on              Michael J. Pelletier, Thomas A. Lilien, and Sherry R. Silvern, all of
     Appeal                  State Appellate Defender’s Office, of Elgin, for appellant.

                             Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M.
                             Bauer and Diane L. Campbell, both of State’s Attorneys Appellate
                             Prosecutor’s Office, of counsel), for the People.




     Panel                   PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
                             court, with opinion.
                             Justices Hutchinson and Burke concurred in the judgment and
                             opinion.




                                              OPINION


¶1          Following a bench trial, defendant, Anthony Slaymaker, was found guilty of resisting a
       peace officer (720 ILCS 5/31-1(a) (West 2010)). He appeals, contending that he could not be
       convicted of resisting because the officer was not engaged in an authorized act at the time.
       Specifically, he argues that the officer was not authorized to pat him down for weapons in the
       course of a community-caretaking encounter. We agree and reverse.
¶2          An information charged defendant with resisting an authorized act of Officer Robert
       Lewis, specifically, defendant’s arrest. Before trial, defendant moved to quash his arrest and
       suppress evidence. The matter proceeded to a simultaneous hearing on the motion and bench
       trial. Lewis was the only witness.
¶3          Lewis testified that he was a Roscoe police officer. He was on duty on August 2, 2011,
       driving north on Highway 251. It was very hot and starting to get dark when he saw
       defendant walking in the paved portion of the highway median. Lewis thought this unusual,
       as there was no “pedestrian access,” in other words, no sidewalk or other means of access to
       the median. Lewis continued north on 251 looking for a disabled vehicle. Finding none, he
       turned around and returned to where defendant was walking. As he pulled over to the
       shoulder, he activated his emergency lights to alert oncoming traffic.
¶4          Defendant, who was talking on a cell phone, approached Lewis as he was getting out of
       the squad car. They met a few feet into the grassy area of the median. In response to Lewis’s
       question, defendant said that he was going to McDonald’s, which was a little farther south on
       Highway 251. Lewis did not ask defendant if he needed assistance. Defendant did not appear
       to be in medical distress; he was not panting or sweating profusely.



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¶5         After defendant said that he was going to McDonald’s, he started to put his hand in his
       right pocket and began to move away from Lewis, so that Lewis could not see for what he
       was reaching. Lewis grabbed toward defendant’s hands to prevent him from retrieving what
       was in his pocket, and he advised him that he wanted to pat him down for weapons.
¶6         Lewis continued to give defendant directions but “wasn’t getting much of a response.”
       He did get defendant to walk toward the squad car. Lewis wanted to get control of
       defendant’s hands and get him off the cell phone. Defendant started screaming into the cell
       phone and would not obey Lewis’s orders. Lewis advised defendant that he was going to
       place him in handcuffs. Defendant was tensing his arm and “resisting any kind of control,” so
       Lewis drew his Taser.
¶7         Defendant was still not listening to verbal commands, so Lewis again tried to gain
       physical control but could not. Lewis began to step away. Defendant reached toward and
       briefly touched the Taser, “as if he was trying to grab it or knock it away.” Lewis pulled back
       the Taser and stepped back. Regaining control of the Taser, he stepped toward defendant and
       fired it. Defendant continued to move away, which suggested to Lewis that the Taser had not
       made a complete connection. Lewis pursued “the suspect” and made a complete connection
       with the Taser on defendant’s leg. At that point he tackled defendant and handcuffed him.
¶8         The prosecutor argued in closing that the incident was not a seizure but a
       community-caretaking function. It was defendant who “changed the nature” of the encounter
       by putting his hand in his pocket and disregarding the officer’s commands. Defense counsel
       argued that no authority exists for seizing someone during a community-caretaking function.
       Once defendant plausibly said that he was going to McDonald’s and the officer saw no
       indication that defendant was in medical distress, defendant should have been allowed to go
       about his business.
¶9         The trial court took the matter under advisement and issued its findings at a later hearing.
       The court found that the officer engaged in a valid community-caretaking function out of
       concern for defendant’s welfare. The community-caretaking function was a seizure, but it
       was objectively reasonable. Because the officer had not “completed his inquiry” when
       defendant responded “ ‘McDonald’s,’ ” he was not free to go at that point, and his conduct in
       reaching into his bulging pocket and moving away from the officer justified the officer’s
       request to pat him down for safety reasons. The court thus denied the motion to quash and
       suppress and found defendant guilty of resisting.
¶ 10       After denying defendant’s motion to reconsider, the trial court sentenced him to
       conditional discharge and 180 days in jail with credit for time served. Defendant timely
       appeals.
¶ 11       Defendant argues that a conviction of resisting requires that the officer be engaged in an
       authorized act. See 720 ILCS 5/31-1 (West 2010). He further contends that the officer had no
       authority to physically restrain him and pat him down for weapons in the course of a
       community-caretaking function and that, accordingly, his conviction must be reversed. We
       agree.
¶ 12       Where a defendant challenges on appeal the sufficiency of the evidence, we ask whether,
       after viewing all the evidence in the light most favorable to the prosecution, a rational trier of
       fact could have found the elements of the offense beyond a reasonable doubt. People v.
       Beauchamp, 241 Ill. 2d 1, 8 (2011). Here, defendant was charged with resisting a peace
       officer, which required the State to prove that he knowingly resisted the performance by

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       someone he knew was a police officer “of any authorized act within his official capacity.”
       720 ILCS 5/31-1(a) (West 2010). The act must be one that the officer was authorized to
       perform. People v. Hilgenberg, 223 Ill. App. 3d 286, 289 (1991). Thus, if Lewis was not
       engaged in an authorized act when defendant resisted, defendant’s conviction must be
       reversed.
¶ 13        We note that, although the information charged defendant with resisting his arrest, the
       evidence at trial showed that he resisted prior to being arrested, when Lewis attempted to pat
       him down for weapons. The distinction is important because, while a defendant may not
       resist an arrest even if it is unlawful (720 ILCS 5/7-7 (West 2010)), that statute does not
       apply where police are not effectuating an arrest. City of Champaign v. Torres, 214 Ill. 2d
       234, 243 (2005); People v. Moore, 286 Ill. App. 3d 649, 654 (1997) (defendant fleeing from
       officer who did not have reasonable grounds to suspect him of crime could not be convicted
       of obstructing; section 7-7 did not apply).
¶ 14        The State argues that Lewis’s initial contact with defendant was authorized as a
       community-caretaking function. Courts have recognized three theoretical tiers of
       police-citizen encounters. The first tier involves an arrest of a citizen, which must be
       supported by probable cause. People v. McDonough, 239 Ill. 2d 260, 268 (2010). The second
       tier involves a temporary investigative seizure pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
       McDonough, 239 Ill. 2d at 268. “In a ‘Terry stop,’ an officer may conduct a brief,
       investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of
       criminal activity and such suspicion amounts to more than a mere ‘hunch.’ ” Id. (citing Terry,
       392 U.S. at 27). The third tier involves consensual encounters. An encounter in this tier
       involves no coercion or detention and, therefore, does not implicate the fourth amendment.
       Id. (citing People v. Luedemann, 222 Ill. 2d 530, 544-45 (2006)).
¶ 15        In Luedemann, the supreme court noted that several Illinois decisions had imprecisely
       referred to the third tier of police-citizen encounters as the “community caretaking” function.
       Luedemann, 222 Ill. 2d at 544-45. The court instructed that the use of the label “community
       caretaking” to describe third-tier encounters was incorrect. Rather than describing a tier of
       police-citizen encounters, “community caretaking” refers to a capacity in which the police
       perform some task unrelated to the investigation of crime, such as helping children find their
       parents, mediating noise disputes, responding to calls about missing persons or sick
       neighbors, or helping inebriates find their way home. “Courts use the term ‘community
       caretaking’ to uphold searches or seizures as reasonable under the fourth amendment when
       police are performing some function other than investigating the violation of a criminal
       statute.” Id. at 546.
¶ 16        Generally, a court must find two general criteria to decide that a seizure is justified as
       community caretaking. First, law enforcement officers must be performing some function
       other than the investigation of a crime. Second, the search or seizure must be reasonable
       because it was undertaken to protect the safety of the general public. McDonough, 239 Ill. 2d
       at 272. “ ‘Reasonableness, in turn, is measured in objective terms by examining the totality of
       the circumstances.’ ” Id. (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). “The court
       must balance a citizen’s interest in going about his or her business free from police
       interference against the public’s interest in having police officers perform services in addition
       to strictly law enforcement.” Id.


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¶ 17       Here, the parties agree that the initial encounter was justified as community caretaking.1
       Defendant does not appear to dispute that the encounter was initially reasonable: he was
       walking in the median of a busy highway on a hot evening, and it was reasonable for Lewis
       to inquire whether he had had car trouble and needed assistance. However, once he plausibly
       explained that he was walking to the nearby McDonald’s, did not appear to be in medical
       distress, and did not request assistance, he should have been free to go about his business.
       See Terry, 392 U.S. at 19-20 (officer’s conduct must be reasonably related in scope to the
       circumstances that justified the intrusion in the first place). The officer was simply not
       authorized to prolong the encounter in order to frisk defendant for a possible weapon.
¶ 18       The State, having justified the original encounter on the basis of community caretaking,
       then attempts to bootstrap it into a Terry stop without the officer having developed a
       reasonable suspicion that defendant either had a weapon or was engaged in criminal activity.
       Terry permits a reasonable search for weapons for the officer’s protection where “he has
       reason to believe that he is dealing with an armed and dangerous individual.” Id. at 27. In
       deciding whether the officer’s conduct was reasonable under the circumstances, we consider
       not “his inchoate and unparticularized suspicion or ‘hunch,’ but *** the specific reasonable
       inferences which he is entitled to draw from the facts in light of his experience.” Id. To be
       sure, an officer initially engaged in community caretaking may develop a reasonable
       suspicion that the subject of the inquiry has a weapon. That was the case in People v. Colyar,
       2013 IL 111835, where an officer approached a car to find out why it was blocking the
       entrance to a parking lot. Upon approaching the car, he saw a bullet in plain view. Id. ¶ 8.
       This gave him reasonable grounds to conduct a Terry stop. Id. ¶ 13.
¶ 19       The State points to no similar circumstances here. The State makes much of the fact that
       defendant attempted to put his hand in his pocket. However, that innocuous act, standing
       alone, does not give rise to a reasonable suspicion of criminal activity or the presence of a
       weapon. As the First District aptly noted:
                   “There is nothing criminally suspicious about walking down the street with one’s
               hands in one’s pockets, whether it was on a cold night in Chicago [citation], or, as
               noted by the State in this case, on a ‘likely warm’ morning in May, where the
               contextual evidence introduced by the State reasonably suggests that respondent was
               holding up his pants, which ‘were sagging down near his–his butt’ when he removed
               his hands in compliance with Officer Millan’s directive. Putting something in one’s
               pockets, in this case, one’s hands, is not a hallmark of criminal activity. [Citation.]”
               In re Rafeal E., 2014 IL App (1st) 133027, ¶ 30.
       See also United States v. Carrasco, 236 F. Supp. 2d 1283, 1289 (D.N.M. 2002) (pat-down
       search of passenger of vehicle stopped for traffic violation was unreasonable where
       defendant made no movements that would have aroused reasonable suspicion that he was
       armed and dangerous; search was not justified merely because defendant kept his hands in
       his pockets).
¶ 20       The State also emphasizes that defendant’s pockets were “bulging.” However, that
       bulging likewise did not give Lewis a reasonable suspicion that defendant had a weapon. See
       People v. Surles, 2011 IL App (1st) 100068, ¶ 40. Further, as neither the bulging nor

           1
           Neither party asserts that the initial encounter was consensual and thus required no justification.
       Accordingly, we do not consider any such possibility.

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       defendant’s attempt to put his hand in his pocket was suspicious, “we must also conclude that
       these two together are also insufficient, because ‘[w]hen you add nothing to nothing, you get
       nothing.’ (Internal quotation marks omitted.)” Id. ¶ 41 (quoting People v. Lee, 214 Ill. 2d
       476, 486 (2005)).
¶ 21       The State cites no case holding that a frisk for weapons is appropriate in the course of a
       community-caretaking encounter. Instead, the State relies solely on Terry-stop cases. It
       concedes this much, but argues without much elaboration that those cases should govern here
       anyway. The obvious distinction between those cases and this one is that in the former the
       officers reasonably suspected criminal activity.
¶ 22       In McDonough, for example, an officer approached a car stopped on the side of the road.
       Upon approaching the car, he detected a strong odor of alcohol, which gave him a reasonable
       suspicion to investigate the driver for driving under the influence. McDonough, 239 Ill. 2d at
       274. In Colyar, as mentioned above, officers approached a car to see why it was blocking the
       entrance to a motel. Upon their approach, they saw a bullet in plain view, which gave them a
       reasonable suspicion that the car’s occupants might have had a weapon. Colyar, 2013 IL
       111835, ¶¶ 42-43. The State does not explain why these cases should control in a situation
       where the encounter was undertaken solely for defendant’s benefit and the officer never
       articulated any valid basis to believe that defendant was involved in criminal activity or had a
       weapon. It would be odd indeed if an encounter that by definition is divorced from the
       investigation of crime should give the officer greater authority to search the subject of the
       encounter for weapons than would an encounter in which the officer reasonably suspects the
       subject of criminal activity.
¶ 23       The State, citing Justice Thomas’s concurring opinion in Colyar, argues that concerns for
       officer safety justified the frisk here. Justice Thomas was primarily responding to the
       dissent’s contentions that the presence of the bullet did not give the police reasonable
       grounds to suspect the defendant of a crime and that, in the absence of a reasonable suspicion
       of criminal activity, a protective frisk is never permissible. Justice Thomas argued that a
       protective frisk is reasonable where the police have a reasonable suspicion that a person is
       armed although they do not otherwise suspect him of criminal activity. Colyar, 2013 IL
       111835, ¶ 74 (Thomas, J., specially concurring). Justice Thomas did not suggest that police
       should be able to frisk for weapons when they lack a reasonable suspicion that a person is
       armed.
¶ 24       The judgment of the circuit court of Winnebago County is reversed.

¶ 25      Reversed.




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