No. 2--04--0968 filed: 8/10/06

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____________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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_____ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lee County. ) Plaintiff-Appellant, ) ) v. ) No. 03--CM--517 ) ROBERT Z. TATE, ) Honorable ) Charles T. Beckman, Defendant-Appellee. ) Judge, Presiding.

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_____ JUSTICE HUTCHINSON delivered the opinion of the court: Defendant, Robert Z. Tate, was charged by criminal complaint with possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2002)), unlawful consumption of liquor (235 ILCS 5/6--20 (West 2002)), and unlawful posse ssion of less than 2.5 grams of cannabis (720 ILCS 550/4(a) (West 2002)). Defendant moved to suppress evidence obtained by the police as being unlawfully seized. The trial court granted the motion and denied the State's motion to reconsider. The State filed a certif icate of impairment pursuant to Supreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)) and a timely notice of appeal. We affirm. Two police officers and defendant testified at the suppression hearing. Defendant, who was 17 years old at the time of the heari ng, testified that on October 30, 2003, he drove to his brother's residence in Dixon. It was dark when defendant pulled into theNo. 2--04--0968

- 2 - driveway. Defendant parked behi nd his brother's truck, which was behind a friend's vehicle. After parking, defendant went through the center console of his car, looking for "a lighter or something." At that poin t, defendant was approached by police, who "said something like get out of the car." Defendant testified that the wi ndows to his car were rolled up because it was cold and that he did not hear the polic e officers until they were right beside his car. Defendant could see only flashlights shining through the windows. One of the police officers opened the pass enger-side door and pushed him while another police officer opened the driver-side door and pull ed him out. Defendant testified that he did not have the opportunity to get out of the car on his own. Defendant was thrown, face down, on the ground, his hands were placed behind his back, and he was handcuffed. The officers then stood defendant on his feet and asked him "a bunch of questions." Defendant further testified that he was wearing a purple wig and purple sunglasses because it was "pretty close to Halloween," and he wanted to scare his brother. Defendant testified that when he heard that the individuals with the flashli ghts were police officers, he removed the wig and sunglasses and put his hands straight up. After defendant testified, the State call ed two police officers. Officer Anthony Quadraro of the Dixon polic e department testified tha t, on October 30, 2003, at approximately 8:15 p.m., he was involved in the ex ecution of a search warrant at 823 North Dement. The search warrant was based upon someone's observation of a bag of cannabis at the house, and it authorized the seizure of evidenc e of cannabis possession. The officers were also advised that Phillip Hall may be in the residence. Hall had an outstanding arrest warrant for damaging property of Quadraro. While the warrant was being executed, it was Quadraro's assignm ent to provide perimeter security.No. 2--04--0968

- 3 - Approximately one minute after police offi cers had entered the house, a car pulled into the driveway. Quadraro approached the car for the purpose of officer safety because the house had not yet been secured. Quadraro testified that he told the driver of the vehicle to show him his hands. Quadraro us ed "loud, repetitive commands" and stood next to the vehicle. Quadraro did not hear music coming from the car and he looked directly at the driver's face. Quadrar o believed he made eye contact even though the driver was wearing sunglasses. Quadraro testified that he was wearing an olive green f light suit with Dixon police patches on it. He was also wearing over the fli ght suit a black bulletpr oof tactical vest with the word "police" in white lettering across the front and back. Quadraro testified that there were no police cars visible in front of the residence. Theref ore, the driver, whom he later learned was defendant, would not have known the police officers were present when he arrived. Quadraro testified that he could not say how many times he yelled for defendant to raise his hands but that it was definitely more than two times. Defendant did not show his hands but put them near the center console of his car; Quadraro could not see what defendant was doing. About that time Li eutenant Whelan and Sergeant Coppotelli walked up to defendant's vehicle. Quadr aro testified that he had a fl ashlight, which he shone into defendant's car, and that Coppote lli and Whelan were also usi ng flashlights. Quadraro testified that because defendant did not raise or show his hands to the officers, he decided to remove him from the vehicle. Quadraro testified that he ordered defendant to exit the vehicle and then he opened the driver-side door . About the same time, Coppotelli opened the passenger-side door, and defendant was taken out of the car, put on the ground, andNo. 2--04--0968

- 4 - handcuffed. Quadraro testified that defendant did not resist the officers' actions. Quadraro testified that he thought that defendant may have been reaching for a weapon when he was in his car. Quadraro removed defendant's wig and recogni zed him from previous contacts. Quadraro helped defendant to hi s feet and asked why defendant had not raised his hands as requested. When defendant rep lied, Quadraro smelled alcohol on his breath. Quadraro then arrested defendant, whom he knew was only 17 years old, for unlawful consumption of liquor. Quadraro subsequently observed drug paraphernalia and cannabis in plain view near the center console in defendant's car. Quadraro testified further that "[t]hrough both training and experience in executing search warrants in a situati on like that if [defendant] would have complied, we would have paid close attention to him with three office rs involved, ordered hi m from the vehicle, watched every move that he made, and we would have opened--I would have opened the door to see inside the vehicle, have him st ep out, and then detain him until everything was secure inside the residence." Sergeant Matthew Coppotelli of the Dixon police departm ent testified that on October 30, 2003, he was involved in the exec ution of a search warrant at 823 North Dement Avenue. While Coppote lli was in the house, he was advised by Quadraro that a vehicle had pulled into the driveway. C oppotelli left the house wit h Lieutenant Whelan and walked toward the vehicle in the driveway . Coppotelli saw Quadraro approach defendant's vehicle and heard him repeatedly yell for defendant to show his hands, using the phrase: "Police. Police department. Show me your hands. Let me see your hands." Coppotelli testified that he had no di fficulty hearing Quadraro.No. 2--04--0968

- 5 - As Quadraro was yelling at defendant, Coppotelli and Whelan approached the passenger side of defendant's v ehicle. Coppotelli observed defendant looking down toward the center console area of the vehicle and saw that defendant's hands were below the dashboard level. Coppotelli c ould see defendant's hands but could not discern what defendant was doing. Coppotelli opened the pass enger-side door of the car and repeatedly yelled: "Police department. Show me your hands . Let me see your hands." Despite these commands, defendant kept his hands down toward his right leg area. At that point, Quadraro pulled defendant out of the vehicle. Coppotelli te stified that he had an M16 rifle hanging in front of his shoulders on a harness. Coppotelli further testified that he approached defendant's car out of concern for office r safety and that there were 10 or 11 officers in the house assisting with t he execution of the search warrant. The parties stipulated to the admission of the search warrant that was being executed at the time of def endant's arrest. The search warrant commanded that the residence at 823 North Dement Avenue be searched for things that have been used in the commission of or constitute evidence of the unlawful possession of cannabis. The search warrant was based upon an affiant's observation of a plastic "baggie" containing a green leafy substance believed to be cannabis at the residence on several prior occasions. Following the hearing, the tria l court granted defendant's motion to suppress. In its written memorandum, the trial court found t hat there was no probable cause to detain defendant. The trial court stated, "[t]he real question presented is, can the police detain someone coming to the location where a search, pursuant to a lawful search warrant, is being executed[?]" The trial court reviewed a line of cases beginning wit h Ybarra v. Illinois , 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979) , to answer the question. Citing UnitedNo. 2--04--0968

- 6 - States v. Cole , 628 F.2d 897 (5th Cir. 1980), and United States v. Clay , 640 F.2d 157 (8th Cir. 1981), the trial court stated that a defendant's mere presenc e at the scene of a search warrant does not obviate the Terry v. Ohio requirement for specific articulable facts to support an inference that a suspect might be armed and dangerous. Reviewing the facts of this case the trial court found that the officers knew the occupants of the residence, that it was not a high-crime ar ea, that there was no basis to infer that the occupants were members of a gang or that they were armed or violent, and that the warrant was for possession of cannabis, not with the intent to deliver. The trial c ourt noted that defendant had not exited his vehicle or attempted to enter the residence. The tr ial court opined that the police could have inquired into defendant's reason for being present once he exited his vehicle instead of seizing him wh ile he was still in his vehicle. The trial court found that the seizure of defendant while still in his vehicle wa s a violation of his fourth amendment right to be free from unreasonable seizures. Following the denial of its motion to recons ider, the State fil ed a certificate of impairment and a timely notice of appeal. On appeal, the State contends that the tr ial court erred in granting defendant's motion to suppress evidence. Specifically, the St ate argues that, contrary to the trial court's finding, the police were justified in seiz ing defendant because defendant's actions gave them concern for their safety. Defendant res ponds that the police officers did not have either probable cause or a reasonable and arti culable suspicion on which to base his seizure and therefore the tria l court properly suppressed t he evidence. See Brown v. Illinois , 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975) ( generally, evidence is notNo. 2--04--0968

- 7 - admissible in a criminal prosecution against an a ccused if it is seized in violation of his fourth amendment rights). When reviewing a ruling on a motion to s uppress evidence seiz ed, our standard of review is usually twofold. People v. Holland , 356 Ill. App. 3d 150, 153 (2005). We accord great deference to the trial court's fact ual findings and credibility determinations and reverse those conclusions only if they are against the manifest weight of the evidence. People v. Gherna , 203 Ill. 2d 165, 175 (2003); People v. Sorenson , 196 Ill. 2d 425, 430-31 (2001). A finding is against the manifest wei ght of the evidence on ly if the opposite conclusion is clearly evident. People v. Rockey , 322 Ill. App. 3d 832, 836 (2001). After reviewing the trial court's fa ctual findings, we review de novo the trial court's ultimate legal ruling on probable cause or reasonable suspicion. Sorenson , 196 Ill. 2d at 431. The fourth amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const., amend. IV

. Article I, section 6, of the I llinois Constitution provides the same level of protection against unreasonabl e searches and seizures as the fourth amendment to the United States Constitution unless there is evidence that the drafters intended it to be construed di fferently. People v. Moss , 217 Ill. 2d 511, 518 (2005). Defendant has not suggested the ex istence of additional protections provided by the Illinois Constitution; therefore, we look to the fourth amendment for our discussion. See Moss , 217 Ill. 2d at 518. The fourth amendment was not intended to prevent consensual encounters between the police and citizens. Thus, a police office r may approach a person on the street and ask questions if that person is willing to listen. People v. Smith , 214 Ill. 2d 338, 351-52 (2005).No. 2--04--0968

- 8 - In nonconsensual encounters, the fourth amendment generally requires a warrant supported by probable cause. There are, howev er, "a few specifica lly established and welldelineated exceptions" to the warrant requirement. Moss , 217 Ill. 2d at 518, citing Katz v. United States , 389 U.S. 347, 357, 19 L. Ed.2d 576, 585, 88 S. Ct. 507, 514 (1967). In Terry v. Ohio , the United States Suprem e Court determined that in certain narrowly drawn instances, a law enforcement officer may stop a person without probable cause if the officer has a reasonable and articulable suspicion that the person might be involved in criminal activity. Terry v. Ohio , 392 U.S. 1, 21-22, 30, 20 L. Ed. 2d 889, 905-06, 911, 88 S. Ct. 1868, 1879, 1884-85 (1968). When an officer r easonably believes that the individual whose suspicious behavior he is investigat ing is armed and presently dangerous to the officer or to others, the o fficer may take necessary measures to determine whether the person is in fact carrying a weapon and to neut ralize the threat of physical harm. Terry , 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883. Anot her exception occurs when an officer is performing a "community caretaki ng function," which need not be supported by probable cause or reasonable susp icion. People v. Smith , 214 Ill. 2d 338, 351-52 (2005). This function describes encount ers between police and citizens that typically involve the safety of the public. People v. Murray , 137 Ill. 2d 382, 387 (1990). No one has suggested that the police encounter in this case was consensual. There was no warrant to search or seize defendant or his vehicle, and neither party argues that this seizure was taken by the officers acting in their community caretaking role. As stated above, a law enforcement offi cer may stop a person without pr obable cause if the officer has a reasonable and articulable suspicion that the person might be involved in criminal activity, and the officer may perform a pat-dow n search if he or she reasonable believesNo. 2--04--0968

- 9 - that the person presents a danger. See Terry , 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884-85. The State argues that the following combination of factors justified a reasonable and articulable suspicion warranting the removal of defendant from his ve hicle: (1) it was nighttime and the police were executing a search warrant for drugs; (2) defendant was wearing sunglasses and a wig; and (3) defendant did not display his hands as requested but kept them by the center console of his vehicle. Defendant counters that he was seized at the time the police surrounded his car and or dered him to show his hands; therefore, his failure to display his hands cannot be used as a factor. In order to determine whether there was a reasonable suspicion, we first must determine at what point defendant was seized. A person is seized within the meaning of the fourth

amendment when, by means of physical force or a show of authority, his freedom of m ovement is restrained. Mendenhall v. United States , 446 U.S. 544, 553, 64 L. Ed. 2d 49 7, 508-09, 100 S. Ct. 1870, 1876-77 (1980). "Alternatively, 'the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherw ise terminate the encounter.' " People v. Smith , 331 Ill. App. 3d 1049, 1053 (2002), citing Florida v. Bostick , 501 U.S. 429, 436, 115 L. Ed. 2d 389, 399- 400, 111 S. Ct. 2382, 2387 (1991). Examples of circumst ances that might indicate a seizure include 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 us e 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. In this case, the officers testified that they were on either side of the vehicle, it was dark, and they were shining flashlights into t he vehicle. Quadraro, who was on the driverNo. 2--04--0968

- 10 - side, used "loud, repetitive commands" for def endant to show his hands. Coppotelli, who had walked up to the passenger si de with a third officer, opened the passenger-side door of the car and also yelled for defendant to s how his hands. Furthermore, Coppotelli was carrying an M16 rifle. The num ber of police officers surrounding the vehicle, the officers' tone of voice, and the presence of a weapon lead us to believe that a reasonable person would not have felt free to terminate the encounter. Based upon this evidence, defendant was seized when his vehicle was surrounded and he was "commanded" to show his hands. To decide otherwise woul d mean that the encounter was initially consensual and defendant could have refused to show his hands and terminated the encounter. That was obvious ly not the case her e, as defendant was pulled from the car when he failed to show his hands. See People v. Smith , 331 Ill. App. 3d 1049, 1055 (2002) (noting that a refusal to comply with an officer's request during a consensual encounter cannot establish the basis for a seizure). We also note that Quadraro testified that ev en if defendant had shown his hands he would been detained. We agree with defendant that his failure to display his hands cannot be a factor in determining whether the officers had a reasonable su spicion, because it took place after his seizure. We next determine whether the officers had a reasonable and articulable suspicion that defendant was invo lved in criminal activity or armed and dangerous based on the remaining factors. The State argues that the security of the police officers executing a search warrant for drugs at night is a factor to be considered in that determination. In United States v. Clay , 640 F.2d 157 (5th Cir. 1980), t he court held that it was beyond dispute that police officers may take action to ens ure their own protection when they are executing a searchNo. 2--04--0968

- 11 - warrant. Clay , 640 F.2d at 160. However, the scope of the police action must be weighed against the fourth amendment rights of others. Clay , 640 F.2d at 160. In Clay , the defendant knocked on the door of a residence shortly after police officers had begun executing a search warrant. An undercover police agent orde red the defendant into the house. When the defendant hesitated and took a step or two back wards, the officer pulled out his gun and again ordered the defendant into the house. A pat-down search revealed that the defendant possessed a small quantity of marijuana and a gun. The Clay court found that evidence of criminal activity occurring within the house did not justify the fr isk of the defendant, who was approaching the premises. Clay , 640 F.2d at 160. The court explained th at " 'a person's mere propinquity to others independently suspected of criminal activity does not , without more, give rise to probable cause to search that person.' " Clay , 640 F.2d at 160 , quoting Ybarra v. Illinois , 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979). The Clay court concluded that the police need a reasonable and articulable suspicion pursuant to Terry v. Ohio to stop or frisk a visi tor to a residence being searched. Clay , 640 F.2d at 159. In making an assessment whether the seizure was justified, the Clay

court found that the facts are judged "using an objective standard: would the facts available to the officer at the

moment of seizure warrant a person of reasonable caution in the belief that the action taken was appropriate to

protect his life or the li fe of innocent bystanders ?" Clay , 640 F.2d at 159. Ultimately the Clay court found that the defendant's conduct alone was not suspicious under the circumstances. Clay , 640 F.2d at 159. Looking objectively at the fact s in this case, we find that defendant's act of pulling his vehicle into the driveway of the residence at approximately 8:15 p. m. was not inherently suspicious
. The search warrant provided that the o fficers were to search for evidence relating to the possession of cannabis, and no one te stified to a suspicion that drugs wereNo. 2--04--0968

- 12 - being sold from the residence; therefore, the danger known to accompany drug trafficking was not a factor here. The trial court found that the neighborhood was not dangerous. Furthermore, the trial court f ound that the police were fam iliar with the occupants of the residence and had no reason to believe they were a rmed or violent. None of these findings were disputed by the State. We do not believe that the remaining allegation provided by the State,

the fact that defendant was wearing a purple wig and sung lasses, was a basis to suspect that criminal activity was afoot, particularly because it was the night before Halloween . While police officers s hould take precautions to

ensure that neither they nor their fellow officers are e xposed to needless danger, the facts in this case are not

enough to warrant a person of reasonable caution to believ e that defendant's seizure, while he was sitting in his

car, was required for the protection of the officers. See Clay , 640 F.2d at 159

. The State argues that the case at hand is readily distinguishable from Clay and requests this court to review United States v. Maddox , 388 F.3d 1356, 1362 (10th Cir . 2004). The State's reliance on Maddox is misplaced. In Maddox , federal marshals and a local deputy arrived at a mobile home around dusk to make an arre st for narcotics traffi cking. The mobile home, which had a long, dimly lit driveway, was located in a high-crime area. The deputy was aware that the home had pr eviously been the location of numerous violent crimes and that several narcotics traffickers and violent fugitives had been arrested there. While the federal marshals were executing the arrest warrant, the deputy remain ed outside. Several vehicles drove up the driveway, including a pi ckup truck in which t he defendant was sitting. The deputy observed the defendant reach under t he seat as the truck pulled into the carport. The defendant exited the truck and the deputy asked everyone who arrived, including the defendant, to stay in the carport area. Despite the deputy's instructions, the defendant began to act erratically and paced in circ les farther and farther from the carportNo. 2--04--0968

- 13 - area. After a total of eight peopl e were in the carport area, the deputy called for assistance. In response to an inquiry from a respondi ng officer, the defendant admitted that he had a gun and methamphetamine. T he defendant was arrested and he subsequently moved to have the evidence suppressed, ar guing that it was acquired as a result of his unlawful detention. Maddox , 388 F.3d at 1358-60. The defendant appealed the trial court's denial of his motion to suppress and the Tenth Cir cuit Court of Appeals affirmed. Maddox , 388 F.3d at 1369. The reviewing court held that police may detai n individuals on the scene of an arrest who are not within the i mmediately adjoining area of the arre st if the officers " 'possess a reasonable belief based on specific and articulabl e facts[,]' that the individual poses a danger to them." Maddox , 388 F.3d at 1363, quoting Maryland v. Buie , 494 U.S. 325, 337, 108 L. Ed. 2d 276, 288, 110 S. Ct.1093, 1099-1100 (1990). The court explained that it included the carport as part of the arrest scene in that case because of the isolated and dangerous nature of the residence. Maddox , 388 F.3d at 1363. After examining the totality of the circumstances, the reviewing court found t hat the officer did have a reasonable belief that the defendant pos ed a threat. Maddox , 388 F.3d at 1365. First, the arrest of a narcotics trafficker is routinely dangerous. Maddox , 388 F.3d at 1366. Second, the arrest was taking place in a dangerous location and it was getting dark. Maddox , 388 F.3d at 1366. Third, the deputy wa s outnumbered; and last, the deputy observed the defendant reach under the seat of the truck as he pulled up the driveway. Maddox , 388 F.3d at 1366. The court pointed out that, wh ile many of these factors stand ing alone would not amount to a reasonable suspicion, all together they we re sufficient for t he seizure. Maddox , 388 F.3d at 1366.No. 2--04--0968

- 14 - The case at hand is not similar to Maddox . Unlike Maddox , in this case, the trial court found that the residence was not in a danger ous area. There were no allegations of past violent or criminal behavior (other than possession of cannabis) at the location. No facts were presented that would wa rrant considering the driveway, in this case, a part of the arrest scene as the carport was in Maddox . Furthermore, even if the driveway was a part of the arrest scene, in light of all the factors together, the St ate did not establish that the police had a reasonable belief that defendant posed a threat. The police knew the occupants of the home and they had no evidence to believe that they were armed or violent. The amount of cannabis listed in t he complaint for the search warrant was consistent with personal consum ption; therefore, the dangers known to accompany drug trafficking and the arrest of a drug trafficker we re not present here. Furthermore there was no furtive action seen by the officers as def endant pulled up to the house. The allegation that defendant refused to display his hands and k ept them by the center console took place after the seizure. The facts upon which the seizure was based are that defendant pulled up into the driveway of his brot her's house, at night, wearing a wig and sunglasses while police officers were executing a search warrant in the house. These facts do not support a reasonable suspicion of potential danger to the officers. See Maddox , 388 F.3d at 1367. We also note that the Maddox court provided that not only must the seizure be justified at its inception but also the scope of the seizure must be reasonable under the circumstances. Maddox , 388 F.3d at 1367. The court pointed out that the deputy did not handcuff Maddox, draw his weapon, or treat Maddox with indignity. Maddox , 388 F.3d at 1367. The deputy was found to have employed no more force than was necessary for officer protection when he tem porarily detained Maddox. Maddox , 388 F.3d at 1367. In theNo. 2--04--0968

- 15 - case at hand, defendant was pulled out of t he car, placed on the ground, and handcuffed before being questioned by the police. Even if the seizure here had been warranted, under the reasoning of Maddox , the scope was beyond what was necessary under the circumstances. Maddox , 388 F.3d at 1367. After reviewing all of the circumstances, we find that the police officers did not have a reasonable belief based on specific and articu lable facts that defendant posed a danger to the officers or was involved in criminal activity. Accordingl y, we hold that the trial court properly determined that defendant 's seizure was not just ified and properly granted defendant's motion to suppress the evidence. For the foregoing reasons, we affirm the judgment of the circuit court of Lee County. Affirmed. BYRNE, J., concurs. JUSTICE GILLERAN JOHNSON, dissenting: The crucial facts in this case are not in dispute. While the police were executing a search warrant at a residence in Dixon, the defendant drove his car in to the driveway of that residence. Before the defendant exited his vehicle, a police officer approached his car. The police officer ordered the defendant to show him his hands. The defendant did not; instead, he looked through the center console of his car. When the defendant failed to comply with his orders, the police officer forcef ully removed him from the car. The issue thus becomes whether the defendant's constitu tional rights were violated when he was forcefully removed from his car. The fourth amendment does not prohibit all searches and seizures, but only those that are unreasonable. Un ited States v. Sharpe , 470 U.S. 675, 682, 84 L. Ed. 2d 605, 613,No. 2--04--0968

- 16 - 105 S. Ct. 1568, 1573 (1985). In Terry v. Ohio , 392 U.S. 1, 21-22, 30, 20 L. Ed. 2d 889, 905-06, 911, 88 S. Ct. 1868, 1879, 1884-86 (1968), the United States Supreme Court determined that in certain narrowly drawn inst ances, a law enforcement officer may stop a person without probable cause for arrest if the officer has a reasonable and articulable suspicion that the person might be involved in cr iminal activity. If t he officer has such a reasonable and articulable suspicion, he may also conduct a protective frisk of the suspect's outer clothing if he reasonably believes that the suspect might be armed and dangerous. Terry , 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883. In Maryland v. Buie , 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990), the Supreme Court applied the Terry stop rule to "protective sweeps." A protective sweep allows officers to conduct a search of a home without probable cause solely for the purpose of officer protection "as an adjunc t to the serious step of taking a person into custody for the purpose of prosecuting hi m for a crime." Buie , 494 U.S. at 333, 108 L. Ed. 2d at 285, 110 S. Ct. at 1098. Because the "risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on- the-street or roadside investigatory encounter," officers may take "steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring ot her persons who are dangerous and who could unexpectedly launch an attack." Buie , 494 U.S. at 333, 108 L. Ed . 2d at 285, 110 S. Ct. at 1098. The Supreme Court stressed that this intrusion be "no more than necessary to protect the officer from harm," and "that the arresting officers are permitted in such circumstances to take [only] reasonable steps to ensure their safety after, and while making, the arrest." Buie , 494 U.S. at 333-34, 108 L. Ed. 2d at 286, 110 S. Ct. at 1098. The Supreme Court held that a protective sweep should "last[] no longer than is necessaryNo. 2--04--0968

- 17 - to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depar t the premises." Buie , 494 U.S. at 335-36, 108 L. Ed. 2d at 287, 110 S. Ct. at 1099. The Supreme Court further explained t hat when there are "articulable facts which, taken together with ra tional inferences from those facts," would lead a reasonably prudent officer to believe t hat the broader area poses a danger to those on the arrest scene, he may conduct a protective sweep of the area surrounding the location of the arrest. Buie , 494 U.S. at 334, 108 L. Ed. 2d at 286, 110 S. Ct at 1098. In United States v. Maddox , 388 F.3d 1356, 1362 (10th Cir. 2004), the Tenth Circuit Court of Appeals extended the rationale of Buie to detentions taking place outside of a house in which an arrest is occurring. Based on the facts set forth by the majority in discussing Maddox , the Tenth Circuit det ermined that the defendant's constitutional rights had not been violated. Maddox , 388 F.3d at 1368. After setting forth the law in Buie , the reviewing court addressed whether the area in which the defendant had been detained was part of the "arrest scene." Maddox , 388 F.3d at 1361-63. The reviewing court explained that, in making this determination, it would consider the same c oncerns that justify protective sweeps as outlined in Buie . Maddox , 388 F.3d at 1362. Namely, whether such sweeps protect officers from potentially dangerous individuals who may be present nearby. Maddox , 388 F.3d at 1362-63. The reviewing cour t therefore concluded that when drawing the boundaries of the arrest scene in an indivi dual case, it was proper to consider the reasonable threats posed to the officers. Maddox , 388 F.3d at 1363. As such, the court held "that law enforcement officers may only detain individuals on the scene of the arrest who are not within the 'immediatel y adjoining' area of the arrest if the officers 'possess a reasonable belief based on specific and articulabl e facts[,]' that the individual poses aNo. 2--04--0968

- 18 - danger to them." Maddox , 388 F.3d at 1363, quoting Buie , 494 U.S. at 337, 108 L. Ed. 2d at 288, 110 S. Ct. at 1099-1100. I agree with the analysis set forth in Maddox that, in the interest s of officer safety, police may detain people outside an area where a s earch warrant is bei ng executed. Such protective detentions may be proper if (1 ) the police had a reasonable and articulable suspicion of potential danger to the executing officers; (2) the protective detention is no more than necessary to protect the officers from harm; (3) the police officers take only reasonable steps to ensure their safety dur ing the execution and (4) the protective detention lasts no longer than is necessary to dispel the reasonable suspicion of danger or to execute the warrant and depar t the premises. See Buie , 494 U.S. at 333-336, 108 L. Ed. 2d at 285-88, 110 S. Ct at 1097-99; Maddox , 388 F.3d at 1367-68. Turning to the facts of the instant case, it is apparent that t he defendant's actions gave the police a reasonable and articulable suspic ion that their safety was in jeopardy. The defendant drove into a driveway of a house at night where a sear ch warrant was being executed. It was difficult to see the def endant and determine his in tentions because he was wearing a wig and glasses that disguised hi s appearance. Several police officers then approached the defendant's vehicle to determine w hat he was doing there. The defendant did not make any attempt to drive away . Although the police loudly instructed the defendant to show them his hands to verify that he was not holding a weapon, the defendant did not. Rather, the defendant searched through the cent er console of his car. As the defendant failed to respond to seve ral police commands and instead continued to search through his car, the police officers had but a few seconds to determine whether the defendant was reaching for a weapon. Indeed, bas ed on the situation with which they wereNo. 2--04--0968

- 19 - confronted, it would have been extremely diffi cult for the police to conclude that the defendant was reaching only for something innocuous. Based on all of the abovedelineated circumstances, the police officers we re justified in removing the defendant from his vehicle in order to ensure officer safety. The record further reveals that after the police removed t he defendant from his vehicle, they took reasonable steps to protec t both the defendant's safe ty and their own. See Maddox , 388 F.3d at 1367-68. The officers placed the defendant on the ground and handcuffed him. Furthermore, shortly after t he defendant was removed fr om his vehicle, he spoke, and the arresting officer could smell al cohol on the defendant's breath. Because the arresting officer knew that the defendant was younger than 21, he then had probable cause to arrest the defendant and search the def endant's vehicle. See People v. Bailey , 159 Ill. 2d 498, 506-07 (1994) (alcohol-related offense created a valid basis for search of defendant's vehicle incident to an arrest). The evidence subsequently recovered from the defendant's vehicle was proper and shoul d not have been suppressed. Bailey , 159 Ill. 2d at 506-07. In so finding, I note that the defendant's conduct in Maddox that justified the search was more egregious than that in the instant case. Conversely, the actions of the defendants in Cole and Clay , two cases upon which the trial court relied in granting the defendant's motion to suppress, did not rise to the level of the defendant's conduct in this case. In neither of those cases did t he defendant do anything that could have been construed as threatening to the police. See Clay , 640 F.2d at 159 (defendant knocked on door where police were executing search wa rrant and did nothing suspicious other than hesitate in complying with po lice officer's commands); Cole , 628 F.2d at 898 (defendant didNo. 2--04--0968

- 20 - nothing suspicious other than dr ive his truck to area where police were about to execute search warrant). However, rat her than comparing the facts of the instant case to the cases relied on by the trial court, this court must anal yze the propriety of t he trial court's ruling based on the totality of the circumstances of the case herein. See People v. Moss , 217 Ill. 2d 511, 518 (2005) (reasonableness of a search is measured in objective terms by examining the totality of the circumstances). Based on the totality of the circumstances herein, the defendant's constituti onal rights were not violated when the police removed him from his vehicle. Furthermore, I believe to be without meri t the defendant's argument that reversing the trial court's ruling herein would "establish a new exception to t he warrant requirement which would allow police to search and se ize anyone and anything anywhere in the area during the time the police are executing a search warrant." Police are not given free rein to search anyone who comes near while they execute a search warrant. If a person enters an area where a search warrant is being executed, either that pers on can leave (see People v. Smith , 331 Ill. App. 3d 1049, 1054 (2002)), or he can comply with the police officers' requests to verify that he is not a threat to them. However, if he does neither, and if the police have a reasonable and articulable suspic ion of potential danger to themselves, the police may take reasonable measures to ensure that he is not a threat to them. See Maddox , 388 F.3d at 1367-68. Because the defendant herein did not make any effort to leave or to cooperate with the requests of t he police, and because the defendant's actions gave the police a reasonable and articulable conc ern about their safety, the police were justified in detaining him to verify he was not a threat to their safety.No. 2--04--0968

- 21 - As this case involved a temporary seizur e supported by a reas onable and articulable suspicion of potential danger to the officers, t he trial court erred in granting the defendant's motion to suppress. Accordingly, the judgment of the circuit court of Lee County should be reversed and the cause remanded for additional proceedings.