## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Woods , 2013 IL App (4th) 120372

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J OHNAT HAN NO RMELWOODS, Defe ndant-Appe llant.

District & N o. Four th District Docke t No. 4-12-0372

Filed August 28, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court properly den i ed defe ndant’s motion to suppress the

coca ine discovere d in defe ndant’s pocket fol l o wi ng a “conse nsual encounter” when an office r questioned defe ndant and his companion, who wer e sitti ng in a parke d car in a public housing projec t, since the office r could verify defe ndant’s ri gh t to be on the project’s grounds, he did nothing to convey to defe ndant that he had been sei z ed
, and even though the office r had grounds for a T er r y patdown, he asked for and

rec eived defe ndant’s consent to pat him down bef ore he found the

coca ine.

Dec ision Under Review Appea l from the Circuit Court of McL ean County
, No. 1 1 -C F- 403; the Hon. Robert L . Fr eitag , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er, Kar en Munoz, and Kelly M. Weston, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ason Chambers, State’s At t o rney , of Blooming ton (Patrick Delfino, Robert J

. Bide rman, and Luke McNe ill, all of State’s Attorneys Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel PRES IDI NG J USTI C E STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Appleton and Turner concur red in the judgment and opinion.

OP INION

¶ 1 In May 2011, the State cha rge d d ef en dant, J ohnathan Normel Woods, with unlawful possession of a controlled substance (less than 15 grams of a substance containing coca ine) (720 I L CS 570/402(c) (West 2010)). Shortly there afte r, defe ndant filed a motion to suppress,

ar gu ing that the police violated his fourth-a mendment right to be fre e from unrea sonable

sear ches and seizures. Followin g a J uly 2011 hearing, the trial court denied defe ndant’s motion to s uppress. ¶ 2 In November 2011, following a stipulated bench trial, the trial court convicted defe ndant of unlawful possession of a controlled substance (less th an 15 grams of a substance containing cocaine) (720 I L CS 570/402(c) (West 2010)). In February 2 012, the court sentenc ed def

endant to five year s in prison. ¶ 3 Def

endant appea ls, arguing that the trial court err ed by denying his motion to suppr ess. We disag ree and af

firm.

¶ 4 I . BA CKGROUND ¶ 5 I n M ay 2 0 1 1
, the State charg ed defe ndant with unlawful possession of a con t ro l l ed substance (less than 15 grams of a substance containing co ca i n e) (720 I L CS 570/402(c) (West 2010)). Shortly there afte r, defe ndant filed a motion to suppress, arguing that the police violated his fourth-a

mendment right to be fre e from unrea sonable sear ches and seizures. In J uly 2011, the trial court conducte d a hearing on defe ndant’s motion, at which the parties
prese nted the followingevidenc e.

¶ 6 A. The Evide nce Pre sented at the J uly 2011 Hea

ring on Def endant’ s Motion To S uppress ¶ 7 In May 2011, def en d an t an d h i s g irlfriend, Qyanna J ackson, wer e sitti ng in a par ked vehicle in front of J ackson’ s apar tment, which was in the Sunny side Housing Complex

. (The

-2-Sunny side Housing Complex is part of the Blooming ton H ousing Authority .) Offic er Elias

Mendiola, who was on routine patrol, stopped his squad car in an adjac ent parking spot and
approa ched the vehicle. Mendiola found defendant si t t i n g i n the driver’s s eat and J ackson sitti ng in the passeng er seat of the vehicle. Mendiola beg an questioning the couple from the driver’ s window to make sure they wer e allowed to be on the housing complex grounds. (A second office r arrived shortly there afte r to speak specific al l y wi t h J ackson from the
passeng er w indow.) ¶ 8 Mendiola asked to see defe ndant’s identification to verify that he was permitted to be in the housing compl ex. Def endant responde d that he did not have identification and told Mendiola that his name was “John J ones.” J acks o n p rovided her housing identification, verify ing that she lived at the Sunny side Housing Complex

. J ackson explained to Mendiola that defe ndant was he r guest. ¶ 9 Mendiola testified t h at h e s ub m i t t ed t he names provided by the couple to dispatch. Dispatch responde d that those n ames came back “cle ar.” Although skeptical of the name defe ndant provided, Mendiola did not pursue it further beca use defe ndant appea

red nervous. Whil e he was speaking to defe ndant, Mendiola told defe ndant to keep his hands visible and then “ca lled him out on why he was nervous.” Def endant responde d, “no rea son,” but Mendiola was conce rned beca use of the neighborhood’ s history of vi olence

. At one point
, defe ndant made a “quick mo v ement with his right hand towards his right front pocket.” Mendiola said that he reiter ated that he wanted defe ndant to keep his hands visible and that if he made a quick m o v ement like that ag ain, he would “produc e a wea pon” beca

use he would “assume [ he was] g oing for a wea pon.” Mendiola the n asked de fenda nt for consent
to pat him down. Def

endant consente d and exit ed the vehicle so that Mendiola could do so. ¶ 10 Mendiola escor ted defe ndant to the rea

r of J ackson’ s vehicle, wher e he initiated the pat down. When Mendi o l a “got to the waistband are a,” defe ndant started looking down and
appea red nervous ag ain; defe ndant was “tre mbling.” Mendiola then asked defe ndant for
consent to search his right front pocket, and defe ndant consente d. That sear ch reve aled two rocks of coca ine inside some cellophane

. Mendiola there afte r arr est e d defe ndant. After being

rea d his rights a

t the police station, de fenda nt c onfirmed that he consente d to the pat-down

sear ch. ¶ 11 Although the g ener al acc ount of the events outlined by Mendiola was consistent with that of defe ndant and J ac k son, their testimony differ ed from Mendiola’s acc ount in some signific ant way s. Acc ordingto them, defe ndant never reache d for his pocket while he was in the vehicle–indeed, he was “play ing on his phone” and “lit a ciga rette.” Both defenda

nt and J ackson also (1) insisted that defe ndant was not nervous and (2) testified that Mendiola threatened to shoot defe ndant if he did not stop moving. Def en d an t testified that he never consente d to be ing sear ched be cause Mendiola neve r aske d for consent; instead, Mendiola asked him to exit the vehicle and move to the rea r of the vehicle wher e Mendiola patted him down. J ackson testified that the office rs told her that she “could g et out of the car ” and told her to sit “over

by [her] residence .”

-3-¶ 12 B. TheTrial Court’s F indings F ollowing the
Hea ringon Def

endant’ s Motion To S uppress ¶ 13 On this evidenc e, the trial court denied defe ndant’s motion to sup p re s s , fi n d i n g as follows: “Well, the Court would first note that it finds Offic er Mendiola to be a cre dible witness and believe s his version of events. The question i[ n] considering his te stimony [i s ] wh et h er he acte d within the law. This is a differ ent situation than had he just
encount er ed the defe ndant on the street somewher e. This is a public housing situation wher e the office rs have a leg al right to chec k with people who are on the property ***
to deter mine whether they have a right to be there since it ca n b e a violation in and of itself just to be prese nt on the proper ty [i ]f you do not h ave a proper ID or are not the
guest of someone who does. So clea rly the office r in ap p ro ac h i n g the car initially to chec k on the folks who we re in the c ar is appr opriate a nd proper

. The sequ en ce o f ev ents afte r that, this is an experience d police office r, he’s in uniform, he is in, even though it’s the morning time, he is in a known high crime are a wher e there are many problems with shootings, g ang s, drug s *** and he has worke d for

m an y , many year s, and his testimony is that the response s he g ot initially fr o m t h e defe ndant wer e very suspici o u s

. Now, we don’t rea lly g et to prove up that they wer e

acc urate observa t i o n s by the fac t that they turned out to be true later on. Howeve r, whether they turned out to be true or not is not really the issue. The issue is what was he confr onted with at that point? Did h e h av e s o m e rea son based on the behavior of t h e d efe ndant, the manner in which he g ave his name and so forth, and the manner in which he was acting to continue the interview for a period of time, and also to make the reque st for a pat-down search[? ] The defe ndant was not only acting nervous, but he was also making further movements with his hand that cause the office r to have a proble m. I d o n’t agree with [defense counsel’s] analy sis that once the office r lear ned t h at [J ackson] lived there
, and there was no rea l testimony from the office r that he was shown

an ID or had a valid proof o f that other than that she said something to that aff ect, but still he mentioned, as is the case , that there ’s chec king to be done to see if a person is on the banned list. I f the person is banned from the housing are a, it doesn’t make any differ ence if they wer e a guest, then they would be subject to being arr ested for trespass,

or at least be ing a sked to leave the pre mises. He had not ha d time to do that, so he was makinga fur

ther c heck. He would have bee n justified at that point to make a pat-down of the de fenda nt for

wea pons without consent, but he asked for and re ce i v ed consent while he was still
appropriately investigating the issue, and the defe ndant voluntarily stepped out of the car , was patted down, and during the course of the pat-down he rec eived permission to chec k inside the pocket. Ordinarily
, if the pat-down itself did not produce something that might possibly be a wea

pon, there might be a

n issue here . But he rec eived f urther pe rmission to chec k in the pocket a

nd discovere d the coc aine he re. The later issues with the false name and clea ring that up are rea lly kind of irrele vant

-4-other than the fac t that the defe ndant’s initial nervousne ss, which was to such an extent that the office r had conce rns enough to continue his investigation and want a pat-down. Civil libertaria

ns would say hara ssment. Many a police office r is no longe r with us by ignoring the kind of signs that this office r g ot that day and didn’t take adequate prec autions and lear

ned too la te that a person may

have be en ar

med or dang erous to a

n extent that it was not immediately appar ent. The Court will deny the motion to suppress for the r easons state d.”

¶ 14 C. Defe ndant’s Nove mber 2011 Stipulated
Be nch Tria l and Subsequent Sentenc e ¶ 15 Following a November 2011 stipulated bench trial, the trial court convicted d ef en dant

o f unlawful possession of a controlled substance (less than 15 grams of a substance containing cocaine) (720 I L CS 570/402(c) (West 2010)). In Februar y 2012
, t h e court sentenc ed def

endant to five year s in prison.

¶ 16 I I . ANALYSI S ¶ 17 Def

endant appea ls, a

rguing that the trial court err ed by denying his motion to suppr ess. Specifica lly
, defe ndant contends that Mendiola violated his fourth ame n dment right to be fre e from unrea sonab l e searches and seizures when Mendiola exceede d the scope of the initial stop. Alternatively
, defe ndant asser ts that even if Mendiola did not exceed the scope of the initial stop, defe ndant’s consent to sear ch was involuntary

. We disagree on both points, turningfirst to the fourth amendment and our standard of

revie w.

¶ 18 A. The F ourth Amendment a nd the Standard of

Review ¶ 19 The fourth amendment to the United States Constitution protec ts the “right of the people
to be secur e in their persons, houses, paper s, and eff ects, ag ainst unrea sonable sear ches and sei z u re s

. ” U.S. Const., amend. IV; acc ord I ll. Const. 1970, art. I
, § 6. Acc ording ly
, the
guara ntees of the fourth ame ndment attach where a “se arc h” or “ seizure” take s place . “ ‘A “sea rch” occur s when an expectation of privac y that society is prepa red t o co n s i d er

rea sonable is infring ed.’ ” Peopl e v. B artelt
, 241 I ll. 2d 217, 226 (2011) (quoting United States v. Jacobse n , 466 U.S. 109, 113 (1 9 8 4)). Howeve r, a “seizure” occur s when “ ‘the police conduct would have communicated to a rea sonable person that the person was not fre e to decline the office rs’ reque sts or otherwise terminate the encounte r.’ ” Bartelt
, 241 I ll. 2d at 226 (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)). ¶ 20 When revie wing a trial court’s ruling on a motion to suppress evidenc e, a revie wingcourt utiliz es a two-par

t test, under which the court’s fac tual finding s may be reje cted only if they

are ag ainst the manifest weight of the evidenc e. People v. Harris
, 228 I ll. 2d 222, 230 (2008). Howeve r, when revie wing those established fac ts in rela tion to the issues prese nted, a revie wing court may draw its own conclusions in deciding what relief
, if an y , should be
grante d. Id. Acc ording ly
, a revie wing court revie ws de novo the court’s ultimate ruling as to whether suppression is warr anted. Id.

-5-¶ 21 B. D efe ndant’s Claim That Mendiola Unconstitutionally

Seized Him ¶ 22 Def

endant c ontends that Mendiola violated his f ourth amendment right to be fre e from

unrea sonable sear ches and seizures by exceeding the scope of the initial stop. We disagree

. ¶ 23 Initially
, we note that defe ndant’s char acte rization of his interac tion with Mendiola as a “stop” is inacc urate insofar as that char acte rization implies that defe ndant was seized when Mendiola approa ched d efendant. (The State inexpl icably acc epts the defe ndant’s char acte rization of the encounte r as a “stop” in its brief, describing the encounte r as a “stop [that] was not impermissibly prolong ed.”) Contrary to the parties’ char acte rization, no stop

occur red in this case

. When Mend iola parke d his vehicle next to defe ndant and J ackson, walked up to J ackson’ s vehicle (whe re defe ndant was in the driver’ s seat), and beg an asking defe ndant questions, Mendio la and defe ndant wer e eng ag ed in a classic “conse nsual
encounte r.” ¶ 24 It is “we ll settled” that not ever y encounte r betwee n police and private citizens results in a seiz ure. People v . Luedemann , 222 I ll. 2d 530, 544 (2006). P olice-c itiz en encounters are d i v i d ed into the following three “tiers” : (1) arr ests, which must be supported by probable

cause ; (2) brief investiga tive detentions, or “ Terry stops,” whi ch m u s t be supported by

rea sonable, articula

ble suspicion of criminal activity ( Terry v. Ohio
, 392 U.S. 1 (1968)) ; and (3 ) en counters that involve no coer cion or detention and thus do not implicate fourth

amendment interests. Luedemann
, 222 I ll. 2d at 544-48 (adding that the s o -c all ed “com mu n it y c a r e ta kin g ” doctrine is analy

tically distinct from consensua l encounte rs beca use it is invoked to validate a sear ch or seizure only after the deter mination of whether a sear ch or seizure ha d taken plac e). ¶ 25 Havin g o u t l i n ed t h e three tiers of police-c itiz en encounte rs, we turn to the enc ounter betwee n defe ndant and Me ndiola in this case. ¶ 26 In this context, an individual is “seized” for purposes of the fourth amendment when a n office r “by means o f p h y s i ca l forc e or show of authority
, has in some way restra ined the liberty of a citizen.” (Interna l quotation marks omitted.) Luedemann
, 222 I ll. 2d at 550. The
appropriate inquiry here is whether a rea sonable, innocent person would fee l fre e to decline the office r’s reque sts or otherwise terminate the encounte r. Id. (explaining that this is t h e appropriate test for a person se ated in a pa rked car who is approa ched by a poli ce office r). Citi ng Professor Way

ne L aF ave (4 Way

ne R. L aF ave, Searc h and Seizure § 9.4(a)
, at 419-21 (4th ed. 2004)), the supreme court explained why a consensua l encounte r is not a seizure, as follows: “[T] he police may approa ch and question a person seate d in a parke d vehicle without that
encounte r being labeled a seizure. As Professor L aF ave has noted, ‘if an office r mere ly walks up to a person standing or sitti ng in a public place (or, indeed, who is seated in a vehicle located in a p ub lic place ) and puts a question to him, this alone does not constitute a seizure.’ 4 W. L aF ave, Searc h & Seizure § 9.4(a)
, at 419-21 (4th ed. 2004). The ‘seated in a vehicle’ clause of the above passag e is supported by a leng thy list of citations to the many state and fede ral decisions that have rec ognized this rule. See 4 W.

-6-L aF ave, Searc h & Seizure § 9.4(a)
, at 419-20, 420 n.49 (collec ting case s). In Murray
, this
court held that the mere approa ching an d questioning of a person seate d in a parke d vehicle does not c onstitut e a seizure and listed ma ny decisions from other jurisdictions that had rea ched the sam e conclusion. [ People v. ] Murray
, 137 I ll. 2d [382]
, 391-93 [(1990)]. Thus, any analy sis of such a situation must beg in with the rec ognition that the police may approa ch a person seate d in a parke d vehicle and ask questions of that person without that encounte r being labeled a seizure. The encounte r become s a seizure only if the office r, through p h y sical forc e or a show of authority
, restra ins the liberty of the vehicle’ s occupa

nt. See Bostick
, 501 U.S. at 434 ***.” Luedemann
, 222 I ll. 2d at 552-53. ¶ 27 T h e encounte r in this case was a textbook consensua l encount er

. M en d i o l a p ark ed adjac ent to J ackson’ s vehicle without illumi nating the lights on his squad car and approa ched defe ndant only to inquire as to whether defe ndant was permitted to be on the grounds of the housing complex. In so doing, Mendiola demonstrated no phy sical forc e or show of authority that would have in a

ny way made a rea sonable, innocent person fee l like he was not f ree to decline the office r’s reque st or otherwise terminate the encounte r. Acc ording ly
, we conclude that the encounter be tween defe ndant and Mendiola was a consensual encounter; thus, the fourth amendment simply does not apply

. See People v. Gree n , 301 I l l

. Ap p

. 3 d 767, 771 (1998) (conc luding that beca use nothing about the encounte r betwee n the defe ndant and the police wa s coer cive or

somehow involved the use of phy sical for ce or a show of a

uthority
, the fourth a

mendment did not apply

). ¶ 28 Moreov er , assuming arguendo that the encounter progr essed to a “tier two” enc ounter when Mendiola indicated to defe ndant that if he made another “quick” movement, he would “produc e a wea

pon” (see United States v. Mende nhall
, 446 U.S. 544, 559 (1980) (indicating that the use of languag e or tone of v o i ce i n d icating compliance with the office r’s reque st might be compelled is one of many fac tors to be considere d when deter mining whether a seizure has occur

red) ), the version of events as found by the trial court demonstrates that by that time, any potential seizure of defe ndant was supported by the requisite rea sonable, articula ble suspicion of criminal activity

. During their conver sation, defe ndant (1) provided

a false name, (2) was in a high- crime are a, (3) appea red to Mendiola to be very nervous, and (4) made a “quick” movement toward his pocket that Mendiola con sidered potentially threatening

. Under the totality of the circ umstances, we conclude that any potential seizure subsequent to the consensua l encounte r was constitutional as a brief investiga tory detention, or “ Terrystop.”

¶ 29 C. Defe ndant’s Alter native Claim That His Consent To Searc h Was Involuntary ¶ 30 Alternatively
, defe ndant contends that even if Mendiola did not exceed the scope of the initial encounte r, his consent to sear ch was involuntary

. Specifica lly
, defe ndant asser ts that his co n s en t to be sear ched was involuntary beca use Mendiola’s behavior “conve yed the
messag e that complianc e with any subsequent re quest was r equire d.” We disagree

. ¶ 31 C o n t ra ry to defe ndant’s contentions, Mendiola’s actions in this case did not convey to defe ndant that he had no choice but to allow him to s ear ch. Indeed, the evidenc e prese nted

-7-at the hearing on the motion to suppress demonstrated the contra ry

. Although, as previously explained, Mendiola had the requisite reasona ble, ar ticulable suspicion t o conduct a Terry pat-down, Mendiola nonetheless asked defe ndant, while defe ndant was s t i ll sitti ng in J ackson’ s vehicle, for consent to pat him down. Def endant voluntarily exit ed the vehicle and
agree d to the pat-down, during which Mendiola asked defe ndant for consent to rea ch inside of defe ndant’s right front pocket. Def endant ag ain consente d

. M en d i o la never drew his

wea pon, t h re atene d defe ndant, or used any other technique that would indicate to a

rea sonable person that compliance with his reque sts was mandatory

. Def endant’ s claim that h e was somehow forc ed to consent beca use of Mendiola’s actions–which wer e stand ar d policing te chniques–is entire ly unpersua sive.

¶ 32 I I I . CONCLUSI ON ¶ 33 Be cau s e we reje ct defe ndant’s contentions that (1) Mendiola v i o l at ed h i s fo u rt h

am endment right to be fre e from unrea sonable searches and seizures when Mendiol a exceede d the scope of the initial enco u n t er and (2) his consent to be sear ched was involuntary
, we conclude that the trial court properly denied defe ndant’s motion to suppress. ¶ 34 For the rea sons stated, we aff irm the trial court’s judgme nt. As part of our judgme nt, w e grant the State its $50 statutory assessment as c osts of this appeal.

¶ 35 Affir

med.

-8-