                        Nos. 2--05--0778 & 2--05--0783 cons.
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 04--CF--205
                                       )
AUGUSTIN FLORES,                       ) Honorable
                                       ) Ann B. Jorgensen,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 04--CF--206
                                       )
LUIS G. FLORES,                        ) Honorable
                                       ) Ann B. Jorgensen,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE O'MALLEY delivered the opinion of the court:

       The State appeals the judgment of the circuit court of Du Page County granting the motions

of defendants Augustin Flores (case number 2--05--0778) and Luis Flores (case number 2--05--0783)

to quash arrest and suppress evidence. We reverse and remand both cases.

       Defendants were indicted for two counts of burglary (720 ILCS 5/19--1(a) (West 2004)) and

one count of possession of burglary tools (720 ILCS 5/19--2 (West 2004)) in connection with two
Nos. 2--05--0778 & 2--05--0783 cons.


alleged car stereo thefts. Arguing that they had been placed under arrest without probable cause,

defendants filed motions to quash arrest and suppress evidence. The trial court held a combined

evidentiary hearing on the motions on April 20, 2005.

        At the hearing on the motion, defendants called Officer Kenneth Lafin, an Elmhurst police

officer, to testify first. He testified that, on January 23, 2004, at approximately 4:30 a.m., he was

patrolling the area around an apartment complex on north York Road in an unmarked sport-utility

vehicle when he saw a car drive through the apartment complex parking lot. He was patrolling the

area because the police department was "having numerous reports of cars being broken into not only

in that actual apartment complex but up and down York Road." The vehicle went to two sides of

the parking lot, passed an entrance, but did not leave the parking lot.

        Lafin took up surveillance of the car, which left the parking lot after circling it more than once

and traveled south on York Road for "five or six blocks" before pulling into a gas station. After one

of the occupants got out of the vehicle and appeared to put gas in the vehicle, the car left the gas

station and continued south on York Road for approximately 1 or 1½ miles. The car then turned

right and stopped "maybe a car length away from the curb more towards the center of the street for

six or seven seconds with its lights off before eventually backing into a parking spot along the railroad

tracks parallel to [a nearby] apartment complex." On cross-examination, Lafin clarified that before

backing into the parking spot, the car turned its lights off while rolling to a stop in a driving lane on

the road. Though there was nothing illegal about the car parking in the spot, Lafin noted on re-cross-

examination that the car's driving on the roadway without headlights was a moving violation. Though

he had a police radio in his sport-utility vehicle, Lafin had not received any reports of any stolen car

stereos that night.



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Nos. 2--05--0778 & 2--05--0783 cons.


       Lafin pulled his sport-utility vehicle in front of the car, up to "possibly the front quarter panel

[or] maybe up to the front passenger's side tire," but he left enough room--"probably seven or eight

feet"--so that the car would have been able to drive away if it had turned its wheels while pulling out

of the parking spot. His unmarked sport-utility vehicle had a "red and blue LED light" for

effectuating stops, but Lafin did not activate it at that time. Lafin, who was wearing his full police

uniform, exited his sport-utility vehicle and approached the driver's side window of the car. During

his testimony, he identified the driver of the car as defendant Augustin Flores and the passenger as

defendant Luis Flores.

       Lafin asked the driver for his license and, at that point, he noticed that "the back seat of the

car *** was folded down allowing access to the trunk." He could see "two car stereos with their

wiring harnesses still coming out of the back of them lying on top of that folded down back seat."

On cross-examination, Lafin stated that he did not see any boxes, instruction booklets, warranty

cards, or other items that would normally accompany a car stereo purchased from a store.

       After Augustin tendered his license, Lafin "had a conversation with him asking him why he

was parked at this parking lot here at this time of the morning." Augustin told Lafin that he was

waiting for a friend named Osvaldo who lived in the nearby apartment complex, but he was not sure

of the exact address of his friend's apartment. He also told Lafin that he came from his home in Villa

Park and had not made any stops between Villa Park and his parking spot. Lafin agreed that the car

never actually stopped in the first parking lot, where Lafin's surveillance began. On cross-

examination, Lafin agreed that both Augustin and Luis "kept putting [their] hands into [their] jacket

pocket[s]," and he recalled that he had to tell defendants more than once to keep their hands out of

their pockets.



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Nos. 2--05--0778 & 2--05--0783 cons.


       After Augustin told Lafin that he had come directly from Villa Park, Lafin determined that

Augustin had lied to him, and Lafin "asked him to exit the car so [he] could speak with him further."

Lafin testified that "[he] said what [he] always say[s], [']why don't you do me a favor and come out

of the car[?'] " When he made his request, Augustin "continually kept reaching down towards his

pockets as if he was trying to hide something." When Lafin repeated the request, Augustin "began

to lean over the center console like he was either reaching for something or hiding something."

During some point in his observation of Augustin, Lafin noticed "what [he] thought to be the end of

a screwdriver." On cross-examination, Lafin recalled that he was able to see what he thought looked

like a screwdriver handle in Augustin's pocket when Lafin asked him to exit the vehicle. Lafin noted

in his testimony that the screwdriver could be used as a weapon.

       Lafin then "ordered him to show *** his hands and to exit his vehicle." Approximately 15

seconds elapsed between Lafin's initially asking Augustin to exit the vehicle and his ordering him to

exit the vehicle. When he ordered Augustin out of the vehicle, Lafin was carrying a gun on his right

hip, but he did not display it. When Augustin began to exit the car, Lafin called for backup "because

of [Augustin's furtive] movements" and because he "had two subjects in the car and [he] was by

[him]self." After a minute at the most, another police car arrived on the scene. Lafin asked Augustin

to step to the rear of the car and place his hands on the trunk of the car. On cross-examination, Lafin

stated that Augustin again started trying to put his hands in his pockets once he was out of the

vehicle. He also recalled on cross-examination that the weather that night was cold.

       At that point, Lafin "placed handcuffs on him and explained to him that his actions were being

furtive and wanted to make sure he wasn't going for any weapons." Lafin "informed him that [he

was] not under arrest[,] but for [Lafin's] safety," he placed him in handcuffs. Lafin did not recall if



                                                 -4-
Nos. 2--05--0778 & 2--05--0783 cons.


he placed Augustin in handcuffs just before or just after the second officer arrived. When the second

officer arrived, Lafin apprised him of the situation and instructed him to attend to Luis, who was still

seated in the passenger seat of the car. Lafin did not recall what happened to Luis, because his

attention was focused on Augustin.

        Lafin also did not recall if he placed the handcuffs on Augustin before or after "check[ing]

[him] for weapons," but Lafin did not find any weapons on Augustin's person. On cross-examination,

Lafin testified that he asked Augustin where the screwdriver was, and Augustin denied ever having

a screwdriver. Lafin asked for and obtained permission to search the car, but his testimony implies

that the search was not conducted until after more officers arrived on the scene.

        "Immediately" or "a minute or two" after checking Augustin for weapons and placing him in

handcuffs, Lafin used his police radio to ask nearby officers to check the area for evidence of cars that

may have been broken into. After another "minute or two," Lafin was notified by other officers on

his radio that they had located "a vehicle with a broken out window glass slide on the ground next

to the door and it appeared to be a stereo was removed." Lafin received this report after standing

with defendant handcuffed for "[f]our or five minutes."

        After Lafin received the report of the apparently burglarized nearby car, a squad car arrived

on the scene, and Lafin placed Augustin, who was still handcuffed, inside the squad car. Augustin

was later taken to the police station. On cross-examination, Lafin stated that he did not tell Augustin

that he was under arrest until after Lafin was informed of the apparent burglaries that night, and that,

in fact, he informed Augustin that he was not under arrest, but was instead "being detained as part

of a burglary investigation" when he was initially placed in the squad car. The entire encounter, from




                                                  -5-
Nos. 2--05--0778 & 2--05--0783 cons.


the time Lafin parked his car to the time Augustin was placed in the squad car, lasted "[s]even to ten

minutes maybe."

       Defendants next called Officer Kucera, an Elmhurst police officer, to testify. He testified that

he responded to a call for assistance from Lafin at approximately 5:05 a.m. on January 23, 2004,

while he was on patrol duty for the Elmhurst police department. When he arrived at the parking lot

described in Lafin's testimony, two people were still in the car, and Lafin directed him to the

passenger of the vehicle. Kucera opened the passenger-side door and asked the passenger, whom

he identified at the hearing as Luis, to "step out right away" or "step out immediately," because Lafin

told him that Luis had been putting his hand in his pocket. Kucera testified that he then talked to Luis

before asking for consent to search him, which Luis granted. Kucera later testified that he

"immediately" asked Luis for consent to search. After Kucera discovered a flashlight and a

screwdriver in Luis's pocket during the search, he advised Luis of his rights under Miranda v.

Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and then talked with him further.

Approximately 1 or 1½ minutes passed between Kucera's ordering Luis out of the car and his

"Mirandizing" him. At the time, Kucera was aware of "prior burglaries on the north side of town,"

but he did not know of any that night before he spoke with Luis. He "Mirandized" Luis because

"there were stereos in the car and there were objects such as a screwdriver and a flashlight in his

pocket." On cross-examination, Kucera stated that, based on his experience as a police officer,

flashlights and screwdrivers could be used to pry stereos out of cars. He had no conversation "of

substance" with Lafin at the scene, because each of them was dealing independently with Augustin

and Luis.




                                                  -6-
Nos. 2--05--0778 & 2--05--0783 cons.


       Kucera and Luis spoke for approximately five minutes before Luis admitted that defendants

had committed "some burglaries" and that "he was willing to show [Kucera] where they had broken

into some cars." Kucera then placed Luis in handcuffs and put him in a squad car. The police

transported Luis to another location, where he showed them where defendants had broken into a

vehicle. Luis also pointed out a second location where they had broken into a vehicle. He was then

taken to the police station.

       After a recess and after hearing argument, the trial court ruled as follows, in pertinent part:

       "I listened to the testimony of the police officers this morning and I think they were candid

       and sometimes there is a fine line between extraordinary police work and no probable cause

       for an arrest.

               *** [After the events Lafin described seeing in his initial surveillance of the car,] [t]he

       car turns off on a residential street, turns. It [sic] lights are on [sic] again. That's odd but it's

       not probable cause, backs into a parking spot, and waits 15 seconds. Nothing happens so the

       police officer approaches. Now much ado about how much of the car he blocked or didn't

       block in. If he didn't mean to intimidate or impose himself on the defendants' vehicle, he also

       could have parked completely away from this defendant's vehicle but he didn't. He pulled in

       and blocked at least by conservative estimates the first quarter of the defendant's car and if

       he had moved and twisted and turned, he could have pulled away. The officer approaches

       the driver, sees the stereo in the back seat but interestingly of all the questions the police

       officer asked he never asked him where did you get the stereos? Are you in that business?

       ***




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Nos. 2--05--0778 & 2--05--0783 cons.


              Much ado about moving hands into the pockets. It's cold. Any time a police officer

      has a genuine concern for his safety absolutely all steps should be taken to ensure that the

      proposed offenders in the vehicle are not armed and I'll even go so far to say, well, you could

      have asked the driver to get out of the car and then patted him down. But to then cuff him,

      put him at the back of the car, and leave him cuffed after there was absolutely no danger of

      the [defendants] being armed, I think speaks volumes that these defendants were under arrest.

      They were in custody well before Officer Lafin had any confirmation of [the burglaries]. One

      of the few questions that wasn't asked here today was point blank did you know before or

      after various events happened that there was in fact a burglary to a vehicle? ***

              But I could conclude based on what reading between the lines that they didn't know

      it until *** well after the driver was out of the car and cuffed and remained cuffed. He was

      placed into the back of the squad car. Now, if that's not under arrest and in custody I don't

      know what is. So for those reasons, the motion to quash arrest with respect to the driver is

      granted.

              Now with respect to the passenger, again the car in which he was driving is blocked

      in even albeit just the quarter of the way nonetheless the police officer had the entire stretch

      of the road to pull up his [sport-utility vehicle] and he chooses to go right in front of the

      defendant's car. I could conclude again no other reason that he wished to make his presence

      known to the occupants of that car. When the passenger is asked to get out of the car, he is

      patted down. That officer is satisfied that there is no further danger, doesn't cuff him, doesn't

      ask him to step to the back of the car, front of the car. He begins then to I think start the

      process that would be indicia of custody particularly he gives him his Miranda warnings and



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Nos. 2--05--0778 & 2--05--0783 cons.


       then begins to ask him questions about the stereo. Again, that to me indicates they were

       under arrest and at that time there was no indication at all that any other burglary had been

       committed, at least none had been communicated to either one of those police officers.

               So for those reasons ***, the motion to quash with respect to the passenger is also

       granted."

       The trial court denied the State's motions to reconsider, and the State filed certificates of

impairment and notices of appeal pursuant to Supreme Court Rule 604(a)(1). 188 Ill. 2d R.

604(a)(1).

       On appeal, the State argues that the trial court committed reversible error in granting

defendants' motions to quash, because the officers' actions in this case did not violate defendants'

rights under the fourth amendment. The trial court is in a superior position to determine and weigh

the credibility of witnesses, observe the witnesses' demeanor, and resolve conflicts in the witnesses'

testimony. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). Therefore, a reviewing court must

accord great deference to the trial court's factual findings, and such findings should be reversed only

when against the manifest weight of the evidence. Sorenson, 196 Ill. 2d at 431. A challenge to the

trial court's ultimate legal conclusion based on those facts, on the other hand, presents a question of

law and should be reviewed de novo. Sorenson, 196 Ill. 2d at 431.

       The fourth amendment to the United States Constitution guarantees "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

U.S. Const., amend. IV; accord Ill. Const. 1970, art. I, §6; see Fink v. Ryan, 174 Ill. 2d 302, 314

(1996) (the supreme court has construed the search-and-seizure language of the Illinois Constitution

in a manner consistent with the Supreme Court's fourth amendment jurisprudence); see also People



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Nos. 2--05--0778 & 2--05--0783 cons.


v. Caballes, 221 Ill. 2d 282, 288-317 (2006) (reaffirming "limited lockstep" doctrine). It is well

settled that not every encounter between the police and a private citizen results in a seizure. People

v. Luedemann, 222 Ill. 2d 530, 544 (2006), citing Immigration & Naturalization Service v. Delgado,

466 U.S. 210, 215, 80 L. Ed. 2d 247, 254, 104 S. Ct. 1758, 1762 (1984), and People v. White, 221

Ill. 2d 1, 21 (2006). Courts have divided police-citizen encounters into three tiers: (1) arrests, which,

in order to be considered reasonable, must be supported by probable cause; (2) brief investigative

detentions, or "Terry stops," which must be supported by a reasonable, articulable suspicion of

criminal activity; and (3) encounters that involve no coercion or detention and thus do not implicate

fourth amendment interests. Luedemann, 222 Ill. 2d at 544, citing United States v. Black, 675 F.2d

129, 133 (7th Cir.1982), and United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982).

        The State argues that the officers' actions in seizing defendants were reasonable, either as

Terry stops supported by reasonable suspicion or as arrests supported by probable cause. We

consider the reasonableness of each defendant's seizure in turn, and we begin with Augustin's case.

As noted above, the trial court held that Augustin was arrested at the latest when he remained cuffed

after Lafin searched him for weapons. Though the trial court did not so state, it implicitly held that

Lafin lacked probable cause to arrest Augustin at that point in the encounter.

        At the outset, we note that, when it made its oral ruling that Lafin's actions were

unreasonable, the trial court placed substantial emphasis on the location of Lafin's sport-utility vehicle

when he first approached Augustin's car. The court apparently held that the location of Lafin's vehicle

was a show of force indicative of a seizure but that at that time Lafin lacked probable cause that

Augustin had committed a burglary. However, Lafin's testimony that he saw the car commit a

moving violation was uncontroverted, the trial court specifically stated that Lafin's testimony was



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Nos. 2--05--0778 & 2--05--0783 cons.


credible, and the trial court appeared in its oral ruling to reference defendants' deactivating the lights

of their car. Accordingly, we may conclude for purposes of review that the car turned its lights off

while still in a driving lane. This act was a moving violation under the Illinois Vehicle Code (see 625

ILCS 5/12--201 (West 2004)), which, of course, may justify a seizure (People v. Gonzalez, 204 Ill.

2d 220, 227-28 (2003)). This holds true even if Lafin's subjective grounds for the seizure were the

stereo thefts and not the traffic violation. See Whren v. United States, 517 U.S. 806, 813, 135 L. Ed.

2d 89, 98, 116 S. Ct. 1769, 1774 (1996) ("Subjective intentions play no role in ordinary, probable-

cause Fourth Amendment analysis"); People v. Thompson, 283 Ill. App. 3d 796, 798 (1996).

Therefore, Augustin could have been rightfully seized from the point he committed the traffic

violation, and the fact that Lafin's car may have blocked him is of no moment to this case.1

           Likewise, Lafin's approaching the car and asking for Augustin's driver's license was

reasonable, especially in light of the fact that he had observed the car committing a moving violation.

After he obtained Augustin's license and began a conversation with him, Lafin saw two car stereos,

with their wiring harnesses hanging out and without any packaging, sitting in plain view on the



           1
               In Atwater v. City of Lago Vista, 532 U.S. 318, 149 L. Ed. 2d 549, 121 S. Ct. 1536 (2001),

the United States Supreme Court held that probable cause for a traffic offense justifies an arrest.

However, in People v. Moorman, No. 2--04--1212 (November 29, 2006), relying primarily on our

own supreme court's decision in People v. Jones, 215 Ill. 2d 261 (2005), this court determined that

in Illinois a valid arrest requires probable cause "for something more than a traffic violation."

Moorman, slip op. at 14. Because neither party raises the issue of a traffic violation justifying the

arrests, and because we find the arrests justified on other grounds, we do not address this issue

further.

                                                     -11-
Nos. 2--05--0778 & 2--05--0783 cons.


backseat of the car. That knowledge, combined with his knowledge that the area had been the site

of several recent car stereo thefts, the fact that Augustin lied to him about his prior activities that

night, and the fact that Augustin was behaving suspiciously in the area, provided Lafin ample evidence

to form at least reasonable suspicion that Augustin had been involved in car stereo thefts.

Accordingly, he was justified in continuing the investigation and asking Augustin to step out of the

car to discuss matters further.

        At that point, the testimony indicated, Augustin began making furtive movements. The trial

court downplayed the relevance of Augustin's furtive movements by noting that Augustin might be

expected to place his hands in his pockets given the cold weather, but the court apparently accepted

the testimony that Augustin made the furtive movements, even if it found them sufficient to justify

only a pat-down search but not handcuffing. The testimony also indicated that Lafin was able to see

the handle of a screwdriver in Augustin's pocket or near his person. At that point, Lafin obtained

further facts to support his belief that Augustin had been involved in a crime.

        Lafin also obtained reason to believe that Augustin might be armed. Indeed, as he noted in

his testimony, the screwdriver itself could have been used as a weapon. As such, Lafin's search of

defendant for a weapon was justified. See Sorenson, 196 Ill. 2d at 432 ("Terry further held that 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 others, the officer may conduct a pat-

down search to determine whether the person is in fact carrying a weapon"), citing Minnesota v.

Dickerson, 508 U.S. 366, 373, 124 L. Ed. 2d 334, 344, 113 S. Ct. 2130, 2136 (1993), and Terry, 392

U.S. at 24, 20 L. Ed. 2d at 908, 88 S. Ct. at 1881.




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Nos. 2--05--0778 & 2--05--0783 cons.


       In response to Augustin's movements, Lafin ordered him out of the car, and, after further

furtive movements, Lafin handcuffed him and searched him for weapons. After his search, and

apparently after another officer had arrived on the scene to deal with Luis, Lafin kept Augustin in

handcuffs and later placed him in a police squad car. It is the reasonableness of this portion of the

encounter that both the State and Augustin most vigorously contest.

       Though neither side cites the case, our supreme court's decision in People v. Gabbard, 78 Ill.

2d 88 (1979), may decide the issue of whether the seizure amounted to an arrest when Augustin

remained handcuffed and was placed in a police squad car after Lafin determined he was carrying no

weapons, or, arguably, when Lafin initially handcuffed Augustin. In Gabbard, a police officer

observed the defendant walking south on the shoulder of a highway, pulled his car over to the

shoulder, and came up behind the defendant. Gabbard, 78 Ill. 2d at 91. The defendant then walked

back to the police car, opened the passenger-side door, and got in. Gabbard, 78 Ill. 2d at 91. The

officer asked the defendant where he was going and whether he had any identification. Gabbard, 78

Ill. 2d at 91. The defendant stated that the only identification he had was a checkbook, and the

checkbook he produced from his backpack contained blank checks with his name on them. Gabbard,

78 Ill. 2d at 91. While the defendant displayed the checkbook, the officer noticed stuck in the

checkbook a piece of paper that appeared to be an Illinois driver's license. Gabbard, 78 Ill. 2d at 91.

The officer asked the defendant if he had any further identification, and the defendant replied that he

did not. Gabbard, 78 Ill. 2d at 91. The officer then ordered the defendant to place his head on the

dash, and the officer drew his weapon and handcuffed the defendant. Gabbard, 78 Ill. 2d at 91. The

officer later discovered incriminating evidence in defendant's backpack. Gabbard, 78 Ill. 2d at 91-92.

The supreme court began its analysis of the case as follows:



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Nos. 2--05--0778 & 2--05--0783 cons.


               "The defendant contends that [the officer's] questioning of him was itself restraint,

        which, under [Terry,] *** must meet a test of reasonableness, and that it failed to do so. We

        find it unnecessary to consider that contention, for the articles in question were not seized

        from the defendant until after he had been handcuffed. Although [the officer] did not then tell

        the defendant that he was under arrest, the State admits that his handcuffing constituted an

        arrest, and we agree. See Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824,

        99 S. Ct. 2248." Gabbard, 78 Ill. 2d at 91-92.

See also People v. Eyler, 132 Ill. App. 3d 792, 803 (1985) (citing Gabbard and finding that "[a]n

important feature of the defendant's detention [that helped elevate it to an arrest] was handcuffing").

But see People v. Vena, 122 Ill. App. 3d 154 (1984) (no arrest where the defendant was handcuffed,

placed in squad car, and driven to police station). Gabbard, which was released in 1979, predates

what Professor LaFave has termed a " 'multifaceted expansion of Terry,' especially a 'trend granting

officers greater latitude in using force in order to "neutralize" potentially dangerous suspects during

an investigatory detention.' " 4 W. LaFave, Search & Seizure §9.2(d), at 305 (4th ed. 2004), quoting

United States v. Perdue, 8 F.3d 1455, 1464 (10th Cir. 1993). Given this evolution of the law

surrounding Terry, the continued viability of reading the supreme court's holding to be that

handcuffing per se constitutes arrest--if the court indeed intended such a broad reading in Gabbard--

may be the subject of some question. See also People v. Waddell, 190 Ill. App. 3d 914, 927 (1989)

("the facts in Gabbard clearly show more than mere handcuffing in reasonable response to a perceived

threat").   An approach that considers the reasonableness of the handcuffing in light of the

circumstances, and permits it within the auspices of Terry under appropriate circumstances, certainly

comports with the sui generis nature of fourth amendment jurisprudence. See People v. Walters, 256



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Nos. 2--05--0778 & 2--05--0783 cons.


Ill. App. 3d 231, 236-37(1994) (citing cases for the proposition that "not all circumstances of

handcuffing and detention convert a lawful Terry stop into a formal arrest"); Waddell, 190 Ill. App.

3d at 926-28 (discussing question of whether handcuffing constitutes an arrest and determining that

the question hinges on the reasonableness of the officer's actions); cf. 4 W. LaFave, Search & Seizure

§9.2(d), at 311-13 nn. 107-11 (4th ed. 2004) (discussing cases holding handcuffing did not convert

a stop to an arrest and also cases holding the opposite, both based on the unique totality of

circumstances presented).

        However, all of that said, we need not reach the issue of precisely when Augustin's seizure

became an arrest instead of a Terry stop or the issue of the proper interpretation of Gabbard, because

we determine that, even if Augustin was under arrest when he was handcuffed and placed in a police

squad car, such an arrest did not violate Augustin's fourth amendment rights. As noted above, in

order to make a constitutionally valid warrantless arrest, a police officer must have probable cause

to effect the arrest. People v. Love, 199 Ill. 2d 269, 278 (2002). Probable cause to arrest exists

when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably

cautious person to believe that the arrestee has committed a crime. Love, 199 Ill. 2d at 279. The

existence of probable cause depends upon the totality of the circumstances at the time of the arrest.

Love, 199 Ill. 2d at 279. " 'The standard for determining whether probable cause to conduct a

warrantless arrest is present is probability of criminal activity, rather than proof beyond a reasonable

doubt. [Citations.]' " People v. Garvin, 219 Ill. 2d 104, 115 (2006), quoting People v. Lee, 214 Ill.

2d 476, 485 (2005). Indeed, probable cause does not even demand a showing that the belief that the

suspect has committed a crime be more likely true than false. People v. Jones, 215 Ill. 2d 261, 277

(2005), quoting Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 514, 103 S. Ct. 1535, 1543



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(1983). Where the question is whether a crime has been committed, as opposed to whether a

particular individual committed a known crime, more evidence will be required to satisfy the probable

cause requirement. In re D.G., 144 Ill. 2d 404, 410 (1991).

        In the current case, we hold that the facts known to Lafin at the time he conducted his frisk

for weapons are sufficient to have led a reasonably cautious person to believe that Augustin had

committed a crime. At that time, Lafin knew that there had been several car stereo thefts in the

immediate area, that defendants were driving suspiciously around a parking lot at a late hour, that

stereos with loose wiring harnesses and no documentation were in defendants' backseat, that Augustin

had lied to him regarding his activities that night, that defendants had exhibited furtive movements,

that Augustin had a screwdriver (which is a tool used for car stereo theft), and that Augustin tried

to conceal the screwdriver from Lafin. See generally 4 W. LaFave, Search & Seizure §3.6(a), at 306-

09 (4th ed. 2004) (nature of property and circumstances surrounding its possession--such as the time

of night, fact that the property is of a type often stolen, or fact that the property was not arranged in

a way consistent with personal belongings in a vehicle--along with efforts to conceal objects from

police or inadequate explanation from the subject concerning his activities--all support finding of

probable cause).

        We find the holding in People v. Jarrell, 248 Ill. App. 3d 1043 (1993), to be instructive in this

case. There, officers were patrolling an industrial area where a rash of burglaries had been reported.

At 1:40 in the morning, they observed the defendant carrying a long brass bar and walking away from

a fence surrounding a building. Jarrell, 248 Ill. App. 3d at 1045-46. A portion of the fence had been

peeled back and was being held open by clamps. Jarrell, 248 Ill. App. 3d at 1046. The defendant

walked toward a parked car with its hood up, and, when he saw the officers, he dropped the brass



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bar. Jarrell, 248 Ill. App. 3d at 1046. The officers approached the car and saw several brass bars

lying in plain view in the rear seat area, and, after questioning the defendant and another defendant

who had been waiting by the car, the officers noticed "some buckets of tools and clamps" in a weeded

area "10 to 20 feet from the car." Jarrell, 248 Ill. App. 3d at 1046. The officers asked the two

defendants what they were doing, and they responded that they had just come from a friend's house

nearby. Jarrell, 248 Ill. App. 3d at 1046. However, when the officers proceeded to the house to

verify the defendants' story, nobody answered the door. Jarrell, 248 Ill. App. 3d at 1046. The

officers then arrested the defendants. Jarrell, 248 Ill. App. 3d at 1046.

       On appeal, the defendants argued that the police lacked probable cause to arrest. Jarrell, 248

Ill. App. 3d at 1049. The appellate court disagreed. It reasoned that, at the time the defendants were

arrested, the officers knew there had been a rash of burglaries in the area, they observed the car

parked across the street from the hole in the fence, they saw one of the defendants walking away from

the fence and carrying a brass bar, they saw the defendant drop the brass bar upon learning of their

presence, they saw additional brass bars in the defendants' car, and they saw buckets of tools and

clamps lying nearby. Jarrell, 248 Ill. App. 3d at 1049-50. The court also observed that the officers

noticed that the hole in the fence was being held open by clamps and that nobody answered the door

at the home where the defendants claimed to have come from. Jarrell, 248 Ill. App. 3d at 1050. The

court concluded that, based on those facts, a reasonable person would have concluded that the

defendants were committing burglary, and thus the officers had probable cause to arrest. Jarrell, 248

Ill. App. 3d at 1050. The court rejected the defendants' argument that the officers must have lacked

probable cause because they had not verified that an actual burglary had taken place before the

defendants were arrested. Jarrell, 248 Ill. App. 3d at 1050.



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Nos. 2--05--0778 & 2--05--0783 cons.


       The current case contains many parallels to Jarrell. Lafin was on patrol in an area in which

a rash of car stereo thefts had been reported, and he spotted Augustin driving in a suspicious manner

late at night. When he approached Augustin's car, he saw suspicious items in Augustin's backseat,

and, upon further investigation, he discovered that Augustin had burglary tools within his possession.

He noted that Augustin's explanation for his presence was false. Also, just as in Jarrell, Augustin

acted suspiciously after noticing the presence of an officer; in Jarrell, the defendant dropped the item

he was allegedly stealing, while, here, Augustin made furtive movements and attempted to conceal

the screwdriver he had within his possession. Further, compared to the brass bars the officer noticed

in Jarrell, the car stereos with their wiring harnesses hanging out found in the back of Augustin's car

are far more inherently suspicious and also more specifically consistent with the nature of the crimes

that had generally been reported in the area. In short, Jarrell supports our conclusion that Lafin had

probable cause to arrest Augustin.

       Augustin's sole argument on the probable cause issue is that neither officer "kn[e]w that a

burglary had been committed and reasonably believed that [Augustin] had committed that burglary."

Thus, Augustin appears to argue that the officers cannot have had probable cause absent a verification

that a burglary had actually taken place that night. However, as noted above, the standard for

probable cause requires only that the officer have reasonable grounds to believe that a person has

committed an offense. Lafin had such reasonable grounds, even before he received confirmation from

the other officers who found the broken-into cars in the area. See Jarrell, 248 Ill. App. 3d at 1050

(rejecting contention that police lacked probable cause because they had not verified that a crime had

taken place); 2 W. LaFave, Search & Seizure §3.6(a), at 306 (4th ed. 2004) ("An arrest for burglary

*** is not rendered illegal by 'the mere fact that, at the time the [arrest] occurred, the officer was



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Nos. 2--05--0778 & 2--05--0783 cons.


unaware of any specific burglary' "), quoting People v. DeVito, 353 N.Y.S. 2d 990, 995, 77 Misc.

2d 463, 467 (1974).

         We hold that, at the time he handcuffed Augustin, Lafin had probable cause to believe that

Augustin had been involved in car-stereo thefts that night.

         Turning to Luis's appeal, even assuming Luis was under arrest at the moment he was

"Mirandized," based on the above discussion, we have little difficulty concluding that Kucera had

probable cause to arrest Luis at the time he "Mirandized" him. Kucera, like Lafin, was aware of the

outbreak of car-stereo thefts in the area, the late hour, and the stereos in the back of defendants' car.

Kucera also saw that Luis was in possession of not only a screwdriver, but also a flashlight. Further,

he was aware of defendants' furtive movements by virtue of Lafin's warning upon his arrival at the

scene.

         For the foregoing reasons, we reverse the judgments of the circuit court of Du Page County

granting defendants' motions to suppress, and we remand for further proceedings consistent with this

opinion.

         No. 2--05--0778, Reversed and remanded.

         No. 2--05--0783, Reversed and remanded.

         GROMETER, P.J., and HUTCHINSON, J., concur.




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