Illinois Official Reports 

Appellate Court

People v. Slaymaker, 2015 IL App (2d) 130528

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

ANTHONY SLAYMAKER, Defendant-Appellant.

District & No. Second District

Docket No. 2-13-0528

Filed February 3, 2015

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

Defendant’s conviction for resisting a peace officer was reversed on 

the ground that the officer was not engaged in an authorized act at the 

time and could not pat him down for weapons while he was in the 

course of a community-caretaking encounter, since the officer 

observed defendant walking in the paved portion of a highway

median, defendant did not appear to be in distress, he said he was 

going to McDonalds, but when he began to put his hand in his pocket, 

the officer thought he was reaching for a weapon and then grabbed 

defendant and advised him he wanted to pat him down for weapons 

and ultimately tased and handcuffed him, but the innocuous act of 

attempting to put his hand in his pocket, standing alone, did not give 

rise to a reasonable suspicion of criminal activity on defendant’s part 

or the presence of a weapon, regardless of the fact that defendant’s

pockets were bulging, especially when the officer was not 

investigating any crime or had a reasonable suspicion that defendant 

had a weapon.

Decision Under 

Review

Appeal from the Circuit Court of Winnebago County, No. 

11-CM-3696; the Hon. John S. Lowry, Judge, presiding.

Judgment Reversed.
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Counsel on

Appeal

Michael J. Pelletier, Thomas A. Lilien, and Sherry R. Silvern, all of 

State Appellate Defender’s Office, of Elgin, for appellant.

Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. 

Bauer and Diane L. Campbell, both of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE SCHOSTOK delivered the judgment of the 

court, with opinion.

Justices Hutchinson and Burke concurred in the judgment and 

opinion.

 OPINION 

¶ 1 Following a bench trial, defendant, Anthony Slaymaker, was found guilty of resisting a 

peace officer (720 ILCS 5/31-1(a) (West 2010)). He appeals, contending that he could not be 

convicted of resisting because the officer was not engaged in an authorized act at the time. 

Specifically, he argues that the officer was not authorized to pat him down for weapons in the 

course of a community-caretaking encounter. We agree and reverse. 

¶ 2 An information charged defendant with resisting an authorized act of Officer Robert 

Lewis, specifically, defendant’s arrest. Before trial, defendant moved to quash his arrest and 

suppress evidence. The matter proceeded to a simultaneous hearing on the motion and bench 

trial. Lewis was the only witness. 

¶ 3 Lewis testified that he was a Roscoe police officer. He was on duty on August 2, 2011, 

driving north on Highway 251. It was very hot and starting to get dark when he saw 

defendant walking in the paved portion of the highway median. Lewis thought this unusual, 

as there was no “pedestrian access,” in other words, no sidewalk or other means of access to 

the median. Lewis continued north on 251 looking for a disabled vehicle. Finding none, he 

turned around and returned to where defendant was walking. As he pulled over to the 

shoulder, he activated his emergency lights to alert oncoming traffic. 

¶ 4 Defendant, who was talking on a cell phone, approached Lewis as he was getting out of 

the squad car. They met a few feet into the grassy area of the median. In response to Lewis’s 

question, defendant said that he was going to McDonald’s, which was a little farther south on 

Highway 251. Lewis did not ask defendant if he needed assistance. Defendant did not appear 

to be in medical distress; he was not panting or sweating profusely. 
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¶ 5 After defendant said that he was going to McDonald’s, he started to put his hand in his 

right pocket and began to move away from Lewis, so that Lewis could not see for what he 

was reaching. Lewis grabbed toward defendant’s hands to prevent him from retrieving what 

was in his pocket, and he advised him that he wanted to pat him down for weapons. 

¶ 6 Lewis continued to give defendant directions but “wasn’t getting much of a response.” 

He did get defendant to walk toward the squad car. Lewis wanted to get control of 

defendant’s hands and get him off the cell phone. Defendant started screaming into the cell 

phone and would not obey Lewis’s orders. Lewis advised defendant that he was going to 

place him in handcuffs. Defendant was tensing his arm and “resisting any kind of control,” so 

Lewis drew his Taser. 

¶ 7 Defendant was still not listening to verbal commands, so Lewis again tried to gain 

physical control but could not. Lewis began to step away. Defendant reached toward and 

briefly touched the Taser, “as if he was trying to grab it or knock it away.” Lewis pulled back 

the Taser and stepped back. Regaining control of the Taser, he stepped toward defendant and 

fired it. Defendant continued to move away, which suggested to Lewis that the Taser had not 

made a complete connection. Lewis pursued “the suspect” and made a complete connection 

with the Taser on defendant’s leg. At that point he tackled defendant and handcuffed him. 

¶ 8 The prosecutor argued in closing that the incident was not a seizure but a 

community-caretaking function. It was defendant who “changed the nature” of the encounter 

by putting his hand in his pocket and disregarding the officer’s commands. Defense counsel 

argued that no authority exists for seizing someone during a community-caretaking function. 

Once defendant plausibly said that he was going to McDonald’s and the officer saw no 

indication that defendant was in medical distress, defendant should have been allowed to go 

about his business. 

¶ 9 The trial court took the matter under advisement and issued its findings at a later hearing. 

The court found that the officer engaged in a valid community-caretaking function out of 

concern for defendant’s welfare. The community-caretaking function was a seizure, but it 

was objectively reasonable. Because the officer had not “completed his inquiry” when 

defendant responded “ ‘McDonald’s,’ ” he was not free to go at that point, and his conduct in 

reaching into his bulging pocket and moving away from the officer justified the officer’s 

request to pat him down for safety reasons. The court thus denied the motion to quash and 

suppress and found defendant guilty of resisting. 

¶ 10 After denying defendant’s motion to reconsider, the trial court sentenced him to 

conditional discharge and 180 days in jail with credit for time served. Defendant timely 

appeals. 

¶ 11 Defendant argues that a conviction of resisting requires that the officer be engaged in an 

authorized act. See 720 ILCS 5/31-1 (West 2010). He further contends that the officer had no 

authority to physically restrain him and pat him down for weapons in the course of a 

community-caretaking function and that, accordingly, his conviction must be reversed. We 

agree. 

¶ 12 Where a defendant challenges on appeal the sufficiency of the evidence, we ask whether, 

after viewing all the evidence in the light most favorable to the prosecution, a rational trier of 

fact could have found the elements of the offense beyond a reasonable doubt. People v. 

Beauchamp, 241 Ill. 2d 1, 8 (2011). Here, defendant was charged with resisting a peace 

officer, which required the State to prove that he knowingly resisted the performance by 
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someone he knew was a police officer “of any authorized act within his official capacity.” 

720 ILCS 5/31-1(a) (West 2010). The act must be one that the officer was authorized to 

perform. People v. Hilgenberg, 223 Ill. App. 3d 286, 289 (1991). Thus, if Lewis was not 

engaged in an authorized act when defendant resisted, defendant’s conviction must be 

reversed. 

¶ 13 We note that, although the information charged defendant with resisting his arrest, the 

evidence at trial showed that he resisted prior to being arrested, when Lewis attempted to pat 

him down for weapons. The distinction is important because, while a defendant may not 

resist an arrest even if it is unlawful (720 ILCS 5/7-7 (West 2010)), that statute does not 

apply where police are not effectuating an arrest. City of Champaign v. Torres, 214 Ill. 2d 

234, 243 (2005); People v. Moore, 286 Ill. App. 3d 649, 654 (1997) (defendant fleeing from 

officer who did not have reasonable grounds to suspect him of crime could not be convicted 

of obstructing; section 7-7 did not apply). 

¶ 14 The State argues that Lewis’s initial contact with defendant was authorized as a 

community-caretaking function. Courts have recognized three theoretical tiers of 

police-citizen encounters. The first tier involves an arrest of a citizen, which must be 

supported by probable cause. People v. McDonough, 239 Ill. 2d 260, 268 (2010). The second 

tier involves a temporary investigative seizure pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

McDonough, 239 Ill. 2d at 268. “In a ‘Terry stop,’ an officer may conduct a brief, 

investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of 

criminal activity and such suspicion amounts to more than a mere ‘hunch.’ ” Id. (citing Terry,

392 U.S. at 27). The third tier involves consensual encounters. An encounter in this tier 

involves no coercion or detention and, therefore, does not implicate the fourth amendment.

Id. (citing People v. Luedemann, 222 Ill. 2d 530, 544-45 (2006)).

¶ 15 In Luedemann, the supreme court noted that several Illinois decisions had imprecisely 

referred to the third tier of police-citizen encounters as the “community caretaking” function. 

Luedemann, 222 Ill. 2d at 544-45. The court instructed that the use of the label “community 

caretaking” to describe third-tier encounters was incorrect. Rather than describing a tier of 

police-citizen encounters, “community caretaking” refers to a capacity in which the police 

perform some task unrelated to the investigation of crime, such as helping children find their 

parents, mediating noise disputes, responding to calls about missing persons or sick 

neighbors, or helping inebriates find their way home. “Courts use the term ‘community 

caretaking’ to uphold searches or seizures as reasonable under the fourth amendment when 

police are performing some function other than investigating the violation of a criminal 

statute.” Id. at 546. 

¶ 16 Generally, a court must find two general criteria to decide that a seizure is justified as 

community caretaking. First, law enforcement officers must be performing some function 

other than the investigation of a crime. Second, the search or seizure must be reasonable 

because it was undertaken to protect the safety of the general public. McDonough, 239 Ill. 2d 

at 272. “ ‘Reasonableness, in turn, is measured in objective terms by examining the totality of 

the circumstances.’ ” Id. (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). “The court 

must balance a citizen’s interest in going about his or her business free from police 

interference against the public’s interest in having police officers perform services in addition 

to strictly law enforcement.” Id.
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¶ 17 Here, the parties agree that the initial encounter was justified as community caretaking.1

Defendant does not appear to dispute that the encounter was initially reasonable: he was 

walking in the median of a busy highway on a hot evening, and it was reasonable for Lewis 

to inquire whether he had had car trouble and needed assistance. However, once he plausibly 

explained that he was walking to the nearby McDonald’s, did not appear to be in medical 

distress, and did not request assistance, he should have been free to go about his business. 

See Terry, 392 U.S. at 19-20 (officer’s conduct must be reasonably related in scope to the 

circumstances that justified the intrusion in the first place). The officer was simply not 

authorized to prolong the encounter in order to frisk defendant for a possible weapon. 

¶ 18 The State, having justified the original encounter on the basis of community caretaking, 

then attempts to bootstrap it into a Terry stop without the officer having developed a 

reasonable suspicion that defendant either had a weapon or was engaged in criminal activity. 

Terry permits a reasonable search for weapons for the officer’s protection where “he has 

reason to believe that he is dealing with an armed and dangerous individual.” Id. at 27. In 

deciding whether the officer’s conduct was reasonable under the circumstances, we consider 

not “his inchoate and unparticularized suspicion or ‘hunch,’ but *** the specific reasonable 

inferences which he is entitled to draw from the facts in light of his experience.” Id. To be 

sure, an officer initially engaged in community caretaking may develop a reasonable 

suspicion that the subject of the inquiry has a weapon. That was the case in People v. Colyar, 

2013 IL 111835, where an officer approached a car to find out why it was blocking the 

entrance to a parking lot. Upon approaching the car, he saw a bullet in plain view. Id. ¶ 8.

This gave him reasonable grounds to conduct a Terry stop. Id. ¶ 13. 

¶ 19 The State points to no similar circumstances here. The State makes much of the fact that 

defendant attempted to put his hand in his pocket. However, that innocuous act, standing 

alone, does not give rise to a reasonable suspicion of criminal activity or the presence of a 

weapon. As the First District aptly noted: 

“There is nothing criminally suspicious about walking down the street with one’s 

hands in one’s pockets, whether it was on a cold night in Chicago [citation], or, as 

noted by the State in this case, on a ‘likely warm’ morning in May, where the 

contextual evidence introduced by the State reasonably suggests that respondent was 

holding up his pants, which ‘were sagging down near his–his butt’ when he removed 

his hands in compliance with Officer Millan’s directive. Putting something in one’s 

pockets, in this case, one’s hands, is not a hallmark of criminal activity. [Citation.]” 

In re Rafeal E., 2014 IL App (1st) 133027, ¶ 30.

See also United States v. Carrasco, 236 F. Supp. 2d 1283, 1289 (D.N.M. 2002) (pat-down 

search of passenger of vehicle stopped for traffic violation was unreasonable where 

defendant made no movements that would have aroused reasonable suspicion that he was 

armed and dangerous; search was not justified merely because defendant kept his hands in 

his pockets). 

¶ 20 The State also emphasizes that defendant’s pockets were “bulging.” However, that 

bulging likewise did not give Lewis a reasonable suspicion that defendant had a weapon. See 

People v. Surles, 2011 IL App (1st) 100068, ¶ 40. Further, as neither the bulging nor 

 

1Neither party asserts that the initial encounter was consensual and thus required no justification. 

Accordingly, we do not consider any such possibility. 
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defendant’s attempt to put his hand in his pocket was suspicious, “we must also conclude that 

these two together are also insufficient, because ‘[w]hen you add nothing to nothing, you get 

nothing.’ (Internal quotation marks omitted.)” Id. ¶ 41 (quoting People v. Lee, 214 Ill. 2d 

476, 486 (2005)). 

¶ 21 The State cites no case holding that a frisk for weapons is appropriate in the course of a 

community-caretaking encounter. Instead, the State relies solely on Terry-stop cases. It 

concedes this much, but argues without much elaboration that those cases should govern here 

anyway. The obvious distinction between those cases and this one is that in the former the 

officers reasonably suspected criminal activity. 

¶ 22 In McDonough, for example, an officer approached a car stopped on the side of the road. 

Upon approaching the car, he detected a strong odor of alcohol, which gave him a reasonable 

suspicion to investigate the driver for driving under the influence. McDonough, 239 Ill. 2d at 

274. In Colyar, as mentioned above, officers approached a car to see why it was blocking the 

entrance to a motel. Upon their approach, they saw a bullet in plain view, which gave them a 

reasonable suspicion that the car’s occupants might have had a weapon. Colyar, 2013 IL 

111835, ¶¶ 42-43. The State does not explain why these cases should control in a situation 

where the encounter was undertaken solely for defendant’s benefit and the officer never 

articulated any valid basis to believe that defendant was involved in criminal activity or had a 

weapon. It would be odd indeed if an encounter that by definition is divorced from the 

investigation of crime should give the officer greater authority to search the subject of the 

encounter for weapons than would an encounter in which the officer reasonably suspects the 

subject of criminal activity. 

¶ 23 The State, citing Justice Thomas’s concurring opinion in Colyar, argues that concerns for 

officer safety justified the frisk here. Justice Thomas was primarily responding to the 

dissent’s contentions that the presence of the bullet did not give the police reasonable 

grounds to suspect the defendant of a crime and that, in the absence of a reasonable suspicion 

of criminal activity, a protective frisk is never permissible. Justice Thomas argued that a 

protective frisk is reasonable where the police have a reasonable suspicion that a person is 

armed although they do not otherwise suspect him of criminal activity. Colyar, 2013 IL 

111835, ¶ 74 (Thomas, J., specially concurring). Justice Thomas did not suggest that police 

should be able to frisk for weapons when they lack a reasonable suspicion that a person is 

armed. 

¶ 24 The judgment of the circuit court of Winnebago County is reversed. 

¶ 25 Reversed.