please the court counsel good morning i'm the half of the office of the state appellate defender my name is maria shriver and i represent mr charles evans the touchstone of the fourth amendment is reasonableness charles evans was just walking down the street minding his own business at what happened to be a high powered high crime area is not doing anything out of the ordinary one off harold stopped his book for three to five minutes before charles first removed his hands from his pockets after being ordered to do so for being told to remove his can committed the burglary he saw a convenient opportunity to make an arrest officer harold did not have a reasonable articulable suspicion that mr evans was involved in any criminal activity nor in a reasonably prudent person and his circumstances have been warned  he was first order truth his hands from his pocket even as this court finds that the initial encounter was consensual and remained that way after trials order to move his hands from his pocket the state can see that charles was seized when he asked why rather than immediately removing his hands from his pockets however if this was a consensual encounter up until the point that it was asked charles asked the question why then there cannot be a lawful basis to seize him at that time that's continuing mean to it was by not removing his pockets your honor that was his indication that he was not going to continue participating and the exchange he was having with the officer how many times that he been told how many times did we does the record show in and out in and out in an outer garner office or who else at multiple times i don't recall if he was specifically asked how many i don't i know that he did not provide it specific number i do know that counsel asked him defense counsel asked him about his police report not indicating the multiple times but he did testify that it had been multiple times that this is gone back and forth where mr evans had removed the hands after being asked but then ultimately placed them back in his pockets until that final time at which point he did not remove his hand and also ask the question why i feel more comfortable if you took your hands out your pocket and the guy does and he puts them back as years ago your hands for what he does then he puts them back if those requests were lawful why does a defendant's failure to comply with he even know he may have the right to end it why doesn't immediately transform so that it's reasonable for the officer to say ok i got a package down i'm sorry and i don't think understood the question is are you asking because i'm asking to repeat the question please well had enough happened at that point that an officer in those circumstances would feel right at that point at that point or hit mr evans had not done anything to to raise officer suspicion that there was any danger or a safety threat to justify the pat down well except that he said the time the location perhaps the house the defendant had come from the past ability that someone in gauged in such an activity would be carrying a firearm a weapon and the defendant's initial compliance but then becoming less compliant either because of impatience or thinking he's being harassed or not wanting to have anything further happen answer the questions or remove the chance from his pockets the factors that your honor mentioned such as it being a high crime area being late at night the officers understanding that mr evans was coming from a house that the officer  drug house those are all factors that can be considered but officer harold never testified that those things made him concerned for his safety he never said that he was fearful and he never said that he thought mr adams had a weapon so honor he did say that he believed the area was a known drug area and that i don't put the exact language but he did make a reference that some drug dealers are known to carry firearms however he did also say that he did not know if the drug dealers and that area carry firearms and he also did not say that he suspected mr evans of being a drug dealer or participating in or contacts activity at all at that point because he specifically said that he when he was having the strivings down he was not looking for narcotics he specifically said that if that was what he was doing if he thought he had probable cause to search mr evans for some hot it's related offense and he needed to testify that the purpose of my search was because i believe was a bit of a subjective test but it is an objective test as to whether a reasonable person and the officers circumstances or recently prudent person would have felt that their safety or the safety of others was in danger so it's not necessary  was justified in seizing mr evans that doesn't give him the automatic right to search mr adams for weapons even if officer harold still can settle consider charles to be a burglary suspect at that point that alone is not a justification for pat down the record doesn't specify either way i don't believe he still considered him to be a suspect at that point but even if he had that alone is not justification and if this had been a consensual encounter charles choosing to terminate that contest to encounter by not removing his hands from his pockets that alone cannot constitute reasonable suspicion or a search if this had been consensual then charles asking why and not complying can be the basis for the seizure and the search cannot happen without a armed and dangerous he may conduct a pat down for weapons the question is whether reasonably prudent officer in harold's circumstances would be warranted in the belief that his safety or the safety of others is a danger he must be able to point to specific and articulable facts why he believes that search was necessary and we don't have testimony like that here officer harold said the purpose of the pat down was because charles had his hands in his pockets he did not know what was in the pockets because fred did not know if charles had a weapon we know that putting an item in a his hands in his pockets indicated that there was any criminal activity that was all there many knockouts reasons a person can put their hands in their pockets their recently prudent person would not think that their safety was at rest just because somebody place their hands in their pockets cooperative throughout the encounter up until that point and even then all he did was ask why he didn't become aggressive or start threatening anybody he just asked why i didn't  finds that the search itself was justified it exceeded the scope of the terry search because it went beyond what was necessary to determine if mr evans had a weapon of course and an officer may seize may seize contraband detected during the execution of a terry search if do make that argument your honor our position is that it is not important in defense counsel's written motion they raised the specific issue that the sole justification for search is allowed by both parties about what took place during that pat down and he did provide evidence about that because of his counsel ryan said because we do have a complete record because he was asked there's not a concern that this court doesn't have a complete record in this case so i don't believe that argument has been  contraband as opposed to other innocuous items the state presented no evidence to show how it was immediately apparent to harold that items he felt during that had found were contraband if you did a flat handed search apparent from doing a planted pat down that that item could only have been drug paraphernalia there was no testimony that all this and it was warm to the touch or anything that would make it more unique to being drug paraphernalia versus something else  left pocket mr evans had point zero three four grams of what turned out to be crack cocaine that amount was so small that the illinois state police crime lab was not even to get able to get a completely accurate measurement because anything is too low to really accurately measure so that was a very small amount also officer harold never testified that he felt the back with a knot in it and the motion hearing he did not even say he felt a rock like substance that was mentioned for the first time at trial additionally at trial it was revealed that mr evans also had a wallet on his person we don't know where but while it was in his pocket we don't know what was in the pocket with the wallet but it was revealed that trial court good morning your honor this case is a textbook example of how a police officer should conduct their job the police officers responding to a nine one one call and he's within one block of what the seen anything that is relevant to this crime he does turn his car on any gets out of the car and talks as the trial court held in the states agree this was a consensual encounter because there was no authority that was really shown he was just trying to get some relevant facts to help in the investigation moreover the state's position is that defendant here would feel free to go about their business because if he is innocent then why would there be an issue regarding this there was no show thirty there's one case that defendant argues was a show of authority where the police officer drove this far front of the defendant with a bike yes that doesn't make more sense as a show of authority but here the person would feel free to leave his consist of the threatening presence of sub or officers that was not the case here a display of a weapon by an officer that was not the case or physical touching of the person that was not the case here until there was a seizure language or tone of voice and is simply asking if you don't think that is a reasonable person would think that they were stock the middle of the night by police officer and the officer be handsome questions about you seen anything there was a burglary were where  you go on and then begins to direct you to remove your hands from your pocket that at that point you can use turn around walk away down the sidewalk well throughout this entire encounter it's slightly transforming as the state put forth in its brief the state does agree with you on that after the multiple times of noncompliance by the defendant and the senate asks why but clearly becomes why do i have to a question i asked i asked when you're stopped maybe you're asked one question you take your pop your hands out your pocket once and the officers either repeating what he said or you say i don't you know i don't know i believe up to that point in time the yes it would be reasonable raise you think if we interviewed one hundred people on the street that they would think that they could walk away from police i'm not exactly sure about that your honor i'm not either but there's also cases legal standard yes extended it's reasonable people think if they can suspend a police inquiry or it's difficult as this is all within their own mind as to whether they feel free to leave that's why the law makes this these somewhat bright line rules whereas if the defendant does try to leave then that kind of forces the police officer stand as to whether he's going to force in the say or whether it's not  go so i believe that is why there is the distinction in the law your honor and so going forward to that point in time on this evening the finet alternately argues if he was not initially seized then he was seizing her last and for the first time to remove his hands again the state's position is that it is pretty reasonable for an officer to not want the suspect to put their hands in their pockets i'm sure this is just taught in their basic police training course you should suspect par suspect at this point is just an individual you're saying he's asking questions have you seen anybody running around i apologize that was in the statement but eventually it was a do believe it would also have to do with how the police officer approached would he be saying in that teasing manner i'm walking by i am going to get out of a scar and run up to the guy and yell at him i think those are all factors to take into consideration honor but i think simply asking  hands there was no demand within that that the fin and had to say and that defendant never indicated his desire to leave so there was never really any fault you don't know whether he was felt how he felt in his mind whether it was reasonable for him to feel like he could leave or if he had to feel like he was going to say so up to that point in time it should still be considered a consensual encounter as defendant refused to comply this obviously transformed and someone escalated because the friend and then forced the police officer stand by saying why and at this point in time contrary to  terry seizure because the officer had a reasonable belief based on these factors that person question may be armed or dangerous and then the officer is allowed to conduct a limited path on the search for weapons when you look at these presented that harold was more concerned for his own safety and i believe the officer explicitly is safety but the fin and being in front of them and what was being said over the radio he was asked about whether it determines at that point in time there was actually a crime or whether it was just a false fall because he said it was feared fear for his own safe because defend it was much bigger than him and harold was the only officer on the scene he also stated he didn't know if defendant had a knife gun or other weapon and all the finance somewhat characterizes this is him not knowing the state sees it as more of a very possibly could have it and with all these other articulable facts from a case that seems to be what he was meaning he was in a high crime were more likely play and i defendant just left a known drug house and refused to remove his hands from his pockets why do you keep putting his hands in the pockets this caused officer to fear for his safety so we did a pat down search suspects outer clothing and feels an object whose contour or mass makes it i its identity immediately apparent there has been no invasion of the suspects privacy beyond that already authorized by the officer search for weapons here harold specifically testified that what he felt in the finance right pocket was a crack but he said it was short and round further the fact that the senate just came from a drug house this heightens that suspicion or probable cause that this was in fact a drug pipe in his pocket and the state does argue that the senate floor for this argument because there is very little testimony about the smoking  thing a short round object because he was not questioned in depth on it by defense counsel who had the burden to prove the motion to suppress that it should be suppressed and at trial pair harold further testified he was an experience officer who focused on drug related crimes it's part of the rebuild vermillion county metropolitan force and a group he participated in many controlled purchases of their products destroyed narcotics and was also in evidence custodian he had extensive knowledge and  probable cause that was necessary to determine the search was out of pocket or two then searches other pocket where the cocaine was found and regardless the pipe was enough to arrest him so the cocaine would have been found anyway as the search incident to arrest most likely did all that changed between his initial approach and when he was placed under arrest but when he was patted down with him asking why and no longer combined with the multiple and for this officer under these circumstances it was reasonable for him that was the finding that the officer made that mr evans actions had created the officer in the officer's mind a reasonable concern for his safety that was the officer harold even though he was substantially taller he is a tall thin man he only had ten pounds on him he's also sixty years old not that that would make anybody not able to be surprised but this is not a young twenty year old who is significantly larger looks like a discriminant it's not intended to your honor but also regarding the burden in a motion to suppress the defendant has the burden to show that he's doing nothing unusual at the time and then the burden shifts to the state to show that the  evidence made her legally proper stop so our position is that it was the state's burden to present testimony regarding the description of the items in the pocket such that they were obviously