People v. Castigilla

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-07-1075 Rel

Case Date: 09/11/2009

Preview:No. 2--07--1075 Filed: 9-11-09 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 07--CF--1993 ) NICHOLAS S. CASTIGILIA, ) Honorable ) George J. Bakalis, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________________________ JUSTICE O'MALLEY delivered the opinion of the court: Following a stipulated bench trial in the circuit court of Du Page County, defendant, Nicholas S. Castigilia, was found guilty of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2006)) and was sentenced to a 2-year term of probation and 150 days in the county jail with credit for 75 days served. The court also imposed a $500 controlled substance assessment (see 720 ILCS 570/411.2 (West 2006)). On appeal, defendant argues that the trial court erred in denying his motion to quash his arrest and suppress evidence. Defendant alternatively argues that he is entitled to a $375 credit toward the controlled substance assessment. We affirm defendant's conviction, but modify the judgment to award defendant the $375 credit he seeks. At the hearing on defendant's motion to quash and suppress, Addison police officer Alaimo (whose first name does not appear in the record) testified that at about 1 a.m. on July 24, 2007, he was in uniform, sitting in a marked squad car parked at the intersection of Army Trail Road and

No. 2--07--1075 Route 53. Alaimo observed a vehicle pull into a gas station on the other side of Army Trail Road. Defendant exited the vehicle. According to Alaimo, defendant appeared to use an ATM. Defendant then reentered the vehicle, and Alaimo observed "some type of transaction" take place. Defendant exited the vehicle again, crossed Army Trail Road, and began walking north along Route 53. Alaimo "drove around onto Route 53 and waited for [defendant] to approach [Alaimo's] vehicle." Alaimo testified that he performed a "Terry stop" (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) of defendant after defendant walked past his vehicle. Alaimo further testified, "I exited the vehicle, asked [defendant] where he was going, if he had any ID on him." Defendant stopped and replied that he was walking to a friend's house and did not have any identification with him. Alaimo then asked defendant "if he had anything illegal on him, if I could--if he wouldn't mind me searching him." Defendant stated that he had some drugs in his right hand. Acknowledging Alaimo's testimony that he had conducted a Terry stop, the trial court stressed that it was the court's role to determine whether there had been a seizure within the meaning of the fourth amendment. Concluding that defendant had not been seized when he revealed that he had drugs in his possession, the trial court denied the motion to quash and suppress. Despite Alaimo's characterization of the encounter as a Terry stop, we agree with the trial court that no seizure occurred. Not all encounters between the police and private citizens constitute seizures. People v. Luedemann, 222 Ill. 2d 530, 544 (2006). It is well established that "[a] person is seized when, by means of physical force or a show of authority, the person's freedom of movement is restrained." People v. Cosby, 231 Ill. 2d 262, 273 (2008), citing United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). "Examples of circumstances that might

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No. 2--07--1075 indicate a seizure *** would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. On the other hand, consensual

encounters--those that involve no coercion or detention--do not implicate fourth amendment interests. Luedemann, 222 Ill. 2d at 544. Defendant contends that the list of circumstances set forth in Mendenhall is not exhaustive. He argues that, in this case, other circumstances "were indicative of police coercion," thereby establishing a seizure. Citing our decision in People v. Ocampo, 377 Ill. App. 3d 150 (2007), defendant notes that Alaimo emerged from a marked police car and was in uniform when he "accosted" defendant. In Ocampo, which involved an encounter between plainclothes officers and an individual suspected of engaging in a drug transaction, the State argued that the officers' attire suggested that the encounter was not a seizure. We stated: "[T]he primary effect of a police uniform is that it identifies its wearer as a police officer, and, in that sense, where an officer in plain clothes shows his or her police badge or otherwise identifies him or herself as a police officer, we do not discern any coercive difference from an officer in uniform, based on attire. However, an officer wearing a police uniform may create an air of formality or may project greater authority than would an officer in plain clothes. Thus, we are not prepared to hold, as a matter of law, that there is no difference between the coercive effect of fully uniformed police and that of plainclothes police, because police wear uniforms at least partly for the purpose of creating an atmosphere of comfort for the innocent and trepidation for the guilty." Ocampo, 377 Ill. App. 3d at 159.

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No. 2--07--1075 Although an officer's attire is, perhaps, a relevant factor that may occasionally tip the balance toward or away from a finding that a particular encounter is a seizure, Ocampo hardly suggests that attire is a paramount consideration or even a particularly significant one. To be sure, a police uniform is a vivid reminder of the authority a police officer holds. However, it is the exercise (or apparent exercise) of that authority--not merely its existence--that may result in an encounter becoming a seizure. Thus, a confrontation with a police officer is not a seizure on the basis that the officer's authority produces an inherent pressure to cooperate. Rather, as the leading commentator on the fourth amendment has suggested, an encounter between a police officer and a civilian "is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse." 4 W. LaFave, Search & Seizure

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