No. 3-04-0376

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

Defendant David P. Starbuck was charged with unlawfulpossession of a controlled substance (720 ILCS 570/402(c) (West2002)) and unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West2002)). The trial court granted defendant's motion to suppress theevidence. On appeal, the State argues that the search ofdefendant's vehicle was valid under the fourth amendment and thetrial court erred in applying the test set forth in People v.Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003). We reverse andremand for further proceedings.

At the motion to suppress hearing, Officer Mark Klausnertestified that on April 23, 2004, he was on duty as a policeofficer for the City of New Lennox. At approximately 8 a.m. he metwith defendant's estranged wife, Cynthia Starbuck. Cynthiainformed him that defendant had called her the night before andstated that he was on his way home from Mississippi to take thechildren from her. She told Klausner that defendant always carrieda gun under the front seat of his truck. Cynthia had obtained anemergency order of protection against him.

At 1 p.m. that same day, Cynthia called 911 and stated thather husband was on the premises and that he was not wanted there. The dispatcher informed Officer Klausner, and he reported to thescene with the emergency order of protection. When Klausnerarrived, he observed a truck parked on the street in front ofCynthia's house. He walked around the house to the backyard withhis gun drawn. Once in the backyard, he noticed defendant andanother person (later identified as defendant's father-in-law)talking to each other. Officer Klausner placed his gun back in hisholster, approached the two men and asked defendant if he couldspeak with him. Defendant complied. They walked around the frontof the house to Officer Klausner's squad car. Klausner handed theorder of protection to defendant, explained the terms of the orderand told defendant that he had to leave the area. At that point,defendant was free to go.

Officer Klausner then asked defendant for consent to pat himdown for the officer's personal safety. Defendant agreed. Klausner's search of defendant's person revealed no weapons orother contraband. Klausner then asked for and received consent tosearch defendant's truck. Officer Klausner stated that herequested consent to search the vehicle for safety purposes. Before searching the vehicle, Klausner asked defendant if he hadany weapons in the truck. Defendant responded that he did and thatit was under the front driver's seat. By this time, other officershad arrived at the scene. Officer Klausner searched defendant'svehicle and found an unloaded weapon under the driver's seat and aloaded magazine clip in the glove box. He also found a browneyeglass container in the front driver's side door pocket. When heopened the case, he discovered a glass pipe with a brown residueand a small plastic bag containing a white crystal-like substance. Officer Klausner instructed another officer to place defendantunder arrest. One of the other officers at the scene alsotestified. His testimony corroborated Officer Klausner'srecollection of the encounter.

Defendant testified that he was meeting his wife and childrenon the day in question to take them to an amusement park. His wifehad agreed to the trip on the phone the day before and had told himthat she loved him. He testified that he did not give OfficerKlausner permission to pat him down and that he objected to thesearch of his truck.

The trial court noted that the officers who testified were credible. The court then found that Officer Klausner's questionsand search of the truck were not reasonably related to the initialpurpose of the call, citing People v. Gonzalez, 204 Ill. 2d 220,789 N.E.2d 260 (2003), and granted the motion to suppress.

The State argues that the trial court erred in granting themotion to suppress because defendant's consent to search hisvehicle was valid. Defendant argues that he did not consent to thesearch and that, even assuming he had given consent, the evidencemust be suppressed as fruit of the poisonous tree because theofficer's questions impermissibly prolonged his detention. SeeGonzalez, 204 Ill. 2d 220, 789 N.E.2d 260.

The ruling of a trial court on a motion to suppress evidencefrequently presents mixed questions of fact and of law. Becausethe trier of fact is in the best position to review the evidenceand weigh the credibility of the witnesses, the findings of fact ofthe trial court will not be reversed unless they are against themanifest weight of the evidence. People v. Sorenson, 196 Ill. 2d425, 752 N.E.2d 1078 (2001). However, we review de novo theultimate conclusion of the trial court as to the existence ofprobable cause or reasonable suspicion. Sorenson, 196 Ill. 2d 425,752 N.E.2d 1078.

The fourth amendment of the United States Constitutionguarantees the "right of people to be secure in their persons,house, papers, and effects, against unreasonable searches andseizures." U.S. Const., amend. IV. Reasonableness under thefourth amendment generally requires a warrant supported by probablecause. People v. Flowers, 179 Ill. 2d 257, 688 N.E.2d 626 (1997). One exception to the warrant requirement was recognized by theSupreme Court in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.Ct. 1868 (1968), in which the Court held that where an officerobserves unusual conduct which leads him to reasonably concludethat criminal activity may be afoot, the officer may briefly stopthe suspicious person and make reasonable inquiries aimed atconfirming or dispelling his suspicions.

In this case, the State argues that the trial court erred inapplying the Gonzalez factors to the officer's investigatoryquestions. Instead, the State maintains that the officer's conductshould have been analyzed under a traditional Terry analysis.

In Gonzalez, a police officer stopped a vehicle, approachedthe car and eventually asked the passenger in the car foridentification. The question before the court involved thereasonableness of an officer's inquiries during the course of anotherwise valid traffic stop. The supreme court applied a three-tiered test and concluded that an officer's mere request for apassenger's identification during a valid traffic stop does notrender his detention unconstitutionally unreasonable.

In Terry, the defendant was stopped and subsequently searchedfor weapons on a public sidewalk in downtown Cleveland. Thequestion before the court was whether it is always unreasonable forofficers to seize a person and subject him to a limited search forweapons absent probable cause to arrest. The Terry Court noted thegreat need for law enforcement officer to protect themselves fromviolence in a situation where they lacked probable cause for anarrest, but acknowledged a private individual's rights under the fourth amendment. The Court then determined that an officer mayconduct a limited search for weapons once he reasonably concludesthat the person whom he legitimately stopped posses a threat to hissafety or the safety of others. Terry, 392 U.S. 1, 20 L. Ed. 2d889, 88 S. Ct. 1868.

In this case, Officer Klausner did not make a routine trafficstop of defendant. He was called to the scene of a residence toserve an order of protection and to respond to a potential threatthat defendant was attempting to forcibly remove his children fromthe premises. We believe that though Gonzalez is applicable totraffic stops, the traditional Terry analysis applies to the factsof this case.

To justify a search under the traditional Terry analysis, theofficer need not be absolutely certain that the individual isarmed. The issue is whether, given the circumstances, a reasonablyprudent person would be warranted in the belief that his safety orthat of another was in danger. Sorenson, 196, Ill. 2d 425, 752N.E.2d 1078. Since the purpose of the search is to protect theofficer and others, the search must be limited in scope to a searchdesigned to discover guns, knives, clubs, or other weapons that canbe used to assault an individual. People v. Gonzalez, 184 Ill. 2d402, 704 N.E.2d 375 (1998). The search may, however, extend beyondthe defendant's person to the area within his immediate controlfrom which he might gain access to a weapon. Michigan v. Long, 463U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983) (search of thecompartment of defendant's vehicle was within permissible scope ofTerry search).

Here, the officer was justified in asking defendant if hecould search his vehicle for the protection of the officer andothers at the scene. Klausner testified that he requestedpermission to search defendant's truck for safety purposes. Thetrial court found the officer's testimony to be credible, and therecord does not refute that finding. The officer was at the sceneto serve an emergency order of protection on the defendant and toprevent defendant from forcibly taking his children from thepremises. The officer had been told earlier that day thatdefendant was traveling to the area from Mississippi to take hischildren from his estranged wife. He had been told by defendant'swife that defendant always carried a gun under the front seat ofhis truck. He knew that a 911 call had been made, that defendantwas at the wife's house and that he was not wanted on the premises. Given these circumstances, a reasonably prudent person would bewarranted in his belief that his safety and the safety of others onthe premises may be at risk.

In addition, the search was sufficiently limited in scope tosurvive a fourth amendment challenge. It is permissible for anofficer making a protective search under Terry to search thepassenger compartment of an automobile, limited to those areas inwhich a weapon may be placed or hidden, so long as the officerpossesses a reasonable belief, based on specific, articulablefacts, that the suspect is dangerous and may gain immediate controlof a weapon. See Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S.Ct. 3469. Officer Klausner possessed information that defendantcarried a gun under the seat of his truck. Defendant confirmedthat information. Defendant had also been asked to leave thepremises. Based on these specific facts, the officer could havereasonably believed that defendant would return to his vehicle andgain immediate access to a weapon. The search of defendant's truckwas reasonably based on specific concerns for the safety andprotection of everyone involved. The search of the vehicle wastherefore justified under Terry and did not violate defendant'sfourth amendment rights. The trial court's ruling to the contrarywas improper as a matter of law.

The judgment of the circuit court of Will County is reversed,and the cause is remanded for further proceedings.

Reversed and remanded.

O'BRIEN, J., concurring and SCHMIDT, J., specially concurring.