                                                              FIFTH DIVISION
                                                              May 5, 2006




No. 1-05-0811

THE PEOPLE OF THE STATE OF ILLINOIS,                   )      Appeal from the
                                                       )      Circuit Court of
                Plaintiff-Appellee,                    )      Cook County
                                                       )
      v.                                               )
                                                       )
DOLORES JAMES,                                  )
                                                       )      Honorable
                Defendant-Appellant.                   )      Catherine M. Haberkorn,
                                                       )      Judge Presiding.

      JUSTICE O=MARA FROSSARD delivered the opinion of the court:

      Following a stipulated bench trial, defendant, Dolores James, was convicted of

possession of a controlled substance and sentenced to two years of TASC probation.

On appeal, defendant contends that the trial court erred in denying her motion to quash

her arrest and suppress evidence. She also contends that her constitutional right of

confrontation was violated where the record is devoid of evidence showing that she

knowingly and intelligently waived that right before her trial counsel entered evidence

through stipulations, and that the compulsory extraction and inclusion of her DNA in

state and national databases, pursuant to section 5-4-3 of the Unified Code of

Corrections (Code) (730 ILCS 5/5-4-3 (West 2002)), violates her fourth amendment

right to be free from unreasonable searches and seizures.
1-05-0811

       Prior to trial, defendant filed a motion to quash her arrest and suppress evidence,

contending that she was improperly seized by the actions of the police officers at the

time she was asked whether she had any contraband. At the suppression hearing,

Chicago police officer Randall Baker testified that at 10:30 p.m. on September 26, 2003,

he and his partner, Officer Herrera, were stopped at a traffic light when he noticed

defendant approaching customers entering a liquor store at the corner of 106th Street

and Ewing Avenue. On three separate occasions, he saw defendant engage the

customer in a brief conversation as they entered the store together. Based on these

observations, Officer Baker believed that defendant was soliciting customers for

prostitution and approached her to conduct a field interview. Officer Baker asked

defendant her name and what she was doing on the corner, but she was unresponsive

and Aseemed [sic] little confused.@ Officer Baker did not feel threatened by defendant

and asked her if she had anything on her that she should not have. Defendant

responded, AYes,@ and Officer Baker asked her, AWhat?@ After asking her to elaborate

several times, defendant finally answered, APCP.@ At that time, Officer Baker detained

defendant and requested a female officer to search her.

       The trial court denied defendant=s motion, finding that Officer Baker had a

reasonable suspicion to believe that a crime was Aunderfoot@ based on his observation

of defendant=s behavior that was consistent with soliciting for prostitution. The court

also found that defendant=s freedom was not infringed in any significant way and that

defendant willingly volunteered that she had PCP. The court reasoned that A[c]ertainly

the officers have the right to have conversations with anybody they see on the street

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and person [sic] can choose not to talk to them or talk to them.@

       At the ensuing bench trial, the parties stipulated that, if Officer Baker were called

to testify, his testimony would be substantially the same as during the suppression

hearing. In addition, the parties stipulated that Officer Baker would have testified that

after defendant was arrested, he requested a female officer to search defendant, the

female officer recovered a vial containing clear liquid from defendant, and he

inventoried that vial under inventory number 10207717. The parties also stipulated that

if Officer Morandi were called to testify, she would have testified that she performed a

custodial search of defendant and recovered a vial containing clear liquid. The parties

further stipulated that a proper chain of custody was maintained at all times over the

vial, and that forensic chemist Arthur Weathers, who received the vial in a sealed

condition, performed tests commonly accepted in the area of forensic chemistry for

ascertaining the presence of a controlled substance and opined within a reasonable

degree of scientific certainty that the vial contained .5 grams of phencyclidine (PCP).

Following the close of evidence, the trial court found defendant guilty of possession of a

controlled substance.

       On appeal, defendant first contends that the trial court erred in denying her

motion to quash arrest and suppress evidence because the State failed to demonstrate

that the officers had a reasonable articulable suspicion of criminal activity that would

justify questioning her about contraband.

       When reviewing a ruling on a motion to quash an arrest and suppress the

evidence, we accord great deference to the trial court=s factual findings and reverse

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those findings only if they are against the manifest weight of the evidence; however, we

review the trial court=s ultimate legal ruling de novo. People v. Sorenson, 196 Ill. 2d

425, 431 (2001). Where no dispute exists as to the facts or witness credibility, the trial

court=s ruling will be reviewed de novo. People v. Gonzalez, 204 Ill. 2d 220, 223 (2003).

When a determination as to an individual=s constitutional rights depends upon legal

conclusions that are based upon Aundisputed facts,@ then a reviewing court may draw its

own conclusions and may determine the reasonableness of a warrantless search de

novo. Defendant does not challenge the factual rulings of the trial court; accordingly,

we review the case de novo.

       The fourth amendment to the United States Constitution and article I, section 6,

of the Illinois Constitution guarantee freedom from unreasonable searches and seizures

by the government. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, ' 6; People v.

Flowers, 179 Ill. 2d 257, 262 (1997). The Illinois Supreme Court has recognized three

tiers of police-citizen encounters, two of which implicate the fourth amendment. People

v. Gherna, 203 Ill. 2d 165, 176-77 (2003). The first of these involves the arrest of a

citizen, which must be supported by probable cause, i.e., sufficient facts and

circumstances known by the arresting officers to warrant a reasonable person=s belief

that the arrested person has committed a crime. People v. Murray, 137 Ill. 2d 382, 387

(1990). The second relevant tier involves a brief investigative detention or Terry stop,

which requires a reasonable suspicion, based upon specific and articulable facts, that

the person has committed or is about to commit a crime. Murray, 137 Ill. 2d at 387;

People v. Robinson, 322 Ill. App. 3d 169, 174 (2001). The third tier involves what is

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commonly referred to as the community caretaking function, which does not require

probable cause or reasonable suspicion. People v. Smith, 214 Ill. 2d 338, 352 (2005).

AThis function is totally divorced from the detection, investigation, or acquisition of

evidence of a violation of a criminal statute.@ People v. Croft, 346 Ill. App. 3d 669, 673

(2004). An encounter is a function of community caretaking when an officer initiates it

to check on an individual=s well-being. People v. Simac, 321 Ill. App. 3d 1001, 1004

(2001). Encounters in the third tier do not involve coercion or detention and, therefore,

do not constitute a seizure within the meaning of the fourth amendment. Smith, 214 Ill.

2d at 352.

       The State argues that the officers were acting within a community caretaking

function when they approached defendant, and that, consequently, their encounter with

defendant was consensual and not a seizure. For that reason, the State concludes, the

officers did not need a reasonable and articulable suspicion as to the presence of

weapons or drugs in order to inquire about them.

       The State, however, confuses encounters justified by the community caretaking

function with consensual encounters. See, e.g., People v. Mitchell, 355 Ill. App. 3d

1030, 1033 (2005).

For the community caretaking exception to justify a seizure, the seizure must be

reasonable. Police conduct under the community caretaking exception is justified, not

because it does not intrude upon an interest protected by the fourth amendment (U.S.

Const., amend. IV), but because it intrudes upon such an interest in a way that is

reasonable. People v. Ocon, 221 Ill. App. 3d 311, 314-15 (1991). The fourth

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amendment prohibits unreasonable searches and seizures. People v. Hall, 352 Ill. App.

3d 537, 545 (2004).

       The community caretaking function allows an actual seizure so long as it is

reasonable under the circumstances. People v. Luedemann, 357 Ill. App. 3d 411, 419

(2005). The community caretaking exception applies under circumstances where a

police officer seizes an individual for the purpose of helping the individual and evidence

of a crime is then found in plain view. Luedemann, 357 Ill. App. 3d at 419. Conducting

a field interview for the purpose of investigating whether defendant was soliciting

patrons for prostitution is not police activity that can properly be characterized as

community caretaking. People v. Dent, 343 Ill. App. 3d 567, 578 (2003); see also Croft,

346 Ill. App. 3d at 674.

       Having so concluded, we turn to defendant=s contention that the officers had no

reasonable, articulable suspicion of criminal activity to justify questioning her about

contraband. The reasonableness of an investigatory stop is analyzed under the

principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and

involves a dual inquiry: (1) whether the officer=s action was justified at its inception and

(2) whether it was reasonably related in scope to the circumstances that justified the

stop in the first place. People v. Gonzalez, 204 Ill. 2d 220, 228-29 (2003).

       Here, there is no dispute that the initial stop of defendant was justified. At issue

is the second prong of the Terry analysis, which is determined under the framework set

out in Gonzalez. People v. Sloup, 359 Ill. App. 3d 841, 845 (2005). Accordingly, we

first determine whether the questioning of defendant was reasonably related in scope to

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the purpose of the stop; if so, no fourth amendment violation took place. Gonzalez, 204

Ill. 2d at 235. If the questioning is not reasonably related to the purpose of the stop, we

must consider whether Officer Baker had a reasonable, articulable suspicion of criminal

activity that would justify the questioning. Gonzalez, 204 Ill. 2d at 235. If the

questioning was justified, no fourth amendment violation occurred. Gonzalez, 204 Ill. 2d

at 235. Last, in the absence of a reasonable connection to the purpose of the stop or a

reasonable, articulable suspicion, we must consider whether, in light of all the

circumstances and common sense, the questioning impermissibly prolonged the

detention or changed the fundamental nature of the stop. Gonzalez, 204 Ill. 2d at 235.

       Applying this analysis to the case at bar, we find that Officer Baker=s question

about contraband was reasonably related to the circumstances that prompted the stop,

because it was reasonable for Officer Baker to suspect that defendant may have been

under the influence of a controlled substance based on her perceived confusion and

unresponsiveness to the initial inquires as to her name and what she was doing on the

street corner. Sloup, 359 Ill. App. 3d at 846-47; see also People v. Smith, 208 Ill. App.

3d 44, 50-51 (1991). Thus, no fourth amendment violation occurred. See Gonzalez,

204 Ill. 2d at 235.

       The responses to a police officer=s initial inquiries may arouse further suspicion

or dispel the questions in the officer=s mind. Smith, 208 Ill. App. 3d at 50. In the latter

instance, the stop may go no further and the individual should no longer be detained.

Smith, 208 Ill. App. 3d at 50. In the former instance, the stop may be prolonged and the

scope expanded. Smith, 208 Ill. App. 3d at 50; see also Sloup, 359 Ill. App. 3d at 847.

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This approach recognizes that investigatory stops are evolving encounters and that the

court is not limited to considering the situation as it existed at the precise moment the

stop occurred. Sloup, 359 Ill. App. 3d at 847. Because the questioning of defendant

was reasonably related in scope to the purpose of the stop, we find the trial court did not

err in denying defendant=s motion to quash her arrest and suppress the evidence. See

People v. Moore, 341 Ill. App. 3d 804, 810 (2003).



       Defendant initially argued that her constitutional right of confrontation was

violated where the record is devoid of evidence showing that she knowingly and

intelligently waived that right before her trial counsel stipulated to the chain of custody

and the chemical composition of the recovered substances and to the testimony of two

police officers. However, based on the criteria recently set forth by the supreme court in

People v. Phillips, 217 Ill. 2d 270 (2005), defendant withdrew this argument as indicated

in her reply brief.

       We note, however, the record shows that trial counsel=s decision to stipulate to

the evidence in question in order to preserve issues pertaining to her motion to quash

arrest and suppress evidence was sound trial strategy, to which defendant did not

object. Phillips, 217 Ill. 2d at 285-87. In addition, the stipulations did not state that this

evidence was sufficient to convict defendant. Phillips, 217 Ill. 2d at 287-88. Under

these circumstances, there was no need to admonish defendant of the stipulations and

their consequences, or to secure her express agreement to them. Phillips, 217 Ill. 2d at

288.

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                        CONSTITUTIONALITY OF DNA STATUTE

       Last, defendant contends that the compulsory extraction and inclusion of her

DNA in state and national databases, pursuant to section 5-4-3 of the Unified Code of

Corrections (Code) (730 ILCS 5/5-4-3 (West 2002)), violates her fourth amendment

right to be free from unreasonable searches and seizures.

       Defendant argues that under section 5-4-3(a-5), the compulsory extraction and

perpetual storing of her DNA violates her fourth amendment right to be free from an

unreasonable search and seizure. Defendant argues that taking a blood sample from

her does not serve any special need beyond general law enforcement. Defendant also

argues that even if a special need exists, the State=s interests do not outweigh her

privacy interests in her blood sample and her DNA.

       Recently, the Illinois Supreme Court affirmed the constitutionality of the statute

authorizing extraction and storing of DNA in People v. Garvin, No. 99031 (March 23,

2006). The supreme court held that the statute=s purpose - to Aabsolve innocents,

identify the guilty, deter recidivism by identifying those at a high risk of reoffending, or

bring closure to victims@ - Ademonstrate[s] a special need beyond ordinary law

enforcement.@ Garvin, slip op. at 13-14.

       In Garvin, the defendant also argued that the State=s interest in the blood sample

and DNA did not outweigh his privacy interest Aeven in light of his felony conviction.@

Garvin, slip op. at 15. The supreme court noted that a convicted felon=s privacy rights

are Asubstantially reduced due to his status as a convicted felon.@ Garvin, slip op. at 15.

The supreme court found Athe State=s interest in effective crime investigations and

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prevention, as advanced by section 5-4-3, outweighs defendant=s privacy interest as a

convicted felon.@ Garvin, slip op. at 16. In conclusion, the supreme court rejected the

defendant=s constitutional challenge as follows: AWe also hold that the DNA sampling

and database mandated by section 5-4-3 is constitutional both as applied in defendant=s

case and on its face.@ Garvin, slip op. at 16.

       Therefore, based on Garvin, we uphold section 5-4-3 as constitutional on its face

and as applied to defendant. We conclude that the challenged statute does not violate

defendant=s fourth amendment right to be free from unreasonable searches and

seizures and is constitutional.



                                      CONCLUSION

       For the reasons previously discussed, we affirm the judgment of the circuit court

of Cook County.

       Affirmed.

       O=BRIEN and NEVILLE, JJ., concur.




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