FI FTH DIVI SI ON August 6, 2010

1-09-0792

THE PEOPL E OF THE STATE OF I L L I NOI S, ) Appea l from the

) Circuit Court of Plaintiff-Appellant, ) Cook County
. ) v. ) No. 08 CR 21994 ) CAL EB WEL L S, ) The Honor able ) J ames M. Obbish, Def endant- Appellee
. ) J udg e Presiding
. PRES I DI NG JUS TI CE TOOMI

N deliver ed the opinion of the c ourt: This case calls on us to deter mine whether

the circ umstances of

a Terrystop eng ender ed sufficie nt rea sonable suspicion of the da ng er of an attac k to warr ant a f

risk for we apons. Followinga hea

ringon defe ndant Caleb Wells’ motion to quash arre st and suppress e vidence , the trial court g rante d relief

. The State now a

ppeals, c ontending : (1) the tria l court’s fa ctual finding s
wer e ag ainst the manifest we ight of the evidenc e; (2) the stop and frisk of de fenda nt comported with Terry ; (3) the a

rre sting off

icer s had proba

ble ca use; and (4) the sea

rch of defe ndant’s vehicle w as prope r. De fenda nt did not file a responsive brief. Conseque ntly , we c an and do consider the appea l based solely upon the State’s brie f and the circ uit court rec ord. First Capi tol Mortgage Corp. v. Talandis Cons truction Corp. , 63 I ll. 2d 128, 133, 345 N.E.2d 493, 495 (1976). F or the re asons that follow, we aff irm the order

of the c ircuit court.1-09-0792 BA CKGROUND

Def endant wa s char g ed by

indictment with unlawful use of a wea pon by a fe lon and ag g rava ted unlawf

ul use of a w eapon by

a fe lon. Prior to trial, counsel moved to quash defe ndant’s ar

rest and suppr ess the evide nce de rived ther efr om. Defe ndant’s motion asserte d the office rs ar

rested him without probable cause . Followingan evide ntiary hear ing on the motion, the trial cour

t gr anted the motion and suppre ssed the evide nce. I n turn, the State filed a
cer tificate of substantial impairment followed by a notice of

appea l. Offic er D ervisevic was the sole w itness to testify at the hea

ring . Acc ordingto Der visevic, at a

bout 2 a.m. on November 7, 2008, he and his pa

rtner, O ffice r Mizones, responded
as an a ssist car to a “ domestic disturbance ” at 1301 West Argyle in Chicag o. The ra dio call indicated the vic tim, Alli son Sturgill, complained to the dispatc her he r ex-boy friend w as outside of her building, ring ing he r unit, and “thre atening to kill her over the phone .” Sturg ill tol d other office rs she wa

nted def endant to leave, but did not want to press c harg es. Upon a rrival, Der visevic obser

ved def endant e x iting Sturg ill’s apartment. De rvisevic did not speak with Sturgill at any

point and was una

war e of a ny additional conver sations she had with the other office rs. L ikewise, the of fice rs did not stop or speak with def endant a s he left the buildingand proce eded on f

oot west on Arg yle. No mention was ma de that def endant wa s possibly

car rying a g un. After

defe ndant left the a

rea , the offic ers de parte d. Approxim ately

10 minutes later, De rvisevic r ece ived a se cond ra dio call indicating defe ndant had r eturne d to Sturgill’s apa rtment; that he wa s “in front of the building ring ing the bell and thre ateningto call her over the phone.” O nce a g ain, there was no indication defenda nt
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was a rmed. When De rvisevic a nd his partner

returne d to the are a, they saw de fenda

nt walking west down Ar g yle at about 1325 Ar g yle. Def endant did not have any

thing in his hands. The y stopped their squad c ar in fr ont of him and exit ed to conduc t a field intervie w. Def endant cooper ated f

ully with the office rs. Howe ver, be fore the offic ers a sked def endant a ny questions, they “plac ed him in cuffs r ight a way for our safe ty and [patted] him down for w eapons.” Offic er Der visevic discover ed a ha

ndg un in defe ndant’s lef

t sock nea r his ankle. De fenda

nt was take n into custody

and tra nsported to the 20th District police station. While at the station, defe ndant claimed the gun belong ed to his g randmother
. Ammunition for the handgun was found in his vehic le, which wa s parke d on the opposite side of Ar g yle from the e ncounter . Der visevic’s tow re port indicated de fenda nt’s vehicle w as parke d at 1348 West Arg yle. Acc ordingto Dervisevic , defe ndant neve r g ave c onsent to a sea rch of his vehicle. O nce in the station, after Mira ndizi ngthe def

endant, the of

fice r “a sked him if he had a c ar [and] he stated to me that he ha d a ca r and he was pa

rked in that block ove r there .” Der visevic fur

ther e x plained, “And to make sure that prisoner pr operty is safe I went bac k there to make sure that his car is leg ally parke d which it was not.” Conseque ntly , defe ndant’s ca r wa s cited for parkingillega lly

in a handica

pped zone and De rvisevic c alled for the ca r to be towe d. Whil e aw aiting the tow, Der visevic sea

rche d the vehicle and found a mmuniti on for use in the handgun found in defe ndant’s possession. The State a

rgued that, base d on circ umstances, the of fice r had pr obable c ause to c onduct
a Terrystop and pat def

endant down. T he State posited that the off icer ’s ac tions were w arr anted g iven the close temporal proximit y of the two incide nts, coupled with defe ndant’s alleg ed thre at

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to kill S turg ill, as well as the alleg ation that the offic er w as in fea r. F urthermor e, the of

fice r possessed “a

rea sonably

articula ble suspicion that *** defe ndant was the individual who had made that thre at and he cer tainly had proba

ble ca use to pat him down for his own sa fety and
rec over the g un.” Def ense c ounsel counter ed that the of fice r’s a ctions were “bac kwar ds,” as de fenda nt was immediately

handcuf fed a nd sear ched. A ccor dingly , the circ umstances pr esente d to the office rs
wer e not suffic ient to establish probable c ause. When the of fice rs ar rived, de fenda

nt was “wa lking, be havinghimself.” Ac cordingto defe nse counse l, the office rs nee ded some verific ation of def

endant’ s identity

and the nature of his a ctions g iving r ise to Sturgill’s ca ll to police. Consequently , the sea rch of defe ndant’s per son was improper under the circ umstances. Fur thermore , the def

ense disagree d that this encounter c ould be consider ed a Terrystop or that such a stop and pat down was e ven wa rra nted, espe cially

wher e ther e wa s never

any mention or implication of the prese nce of a we apon. Counsel ar g ued the se arc h of the c ar w as likewise improper ba sed upon the infirmities of the initial stop. Followingargument, the trial judg e announc ed his finding s: “Well clea

rly when he is stopped which was when the office r went back and his liberty is restra ined he seems to be that he is under arr est b ec ause the office rs appr o ac h ed h i m for a field i nterview but what the office rs di d was they put him in handcuf fs, that is a pretty strong indication of y our liberty being restra ined and you
are not fre e to leave
. Now no one has articulated, no office r has testified as to what he wa s under a

rre st for at that point. He is under at best he w ould be under a rre st I
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assume for a domest i c d i s turbanc e. I don’t know what exactly wher e that crime ap p ear s in the statute. As far as I know there is so [ sic ] such crime as domesti c d isturbance , that is a police call, that is the way that they notify the office rs on t h e street a s to the nature of

something. But the office r d i d not articulate that they place d the man under arr est for aggra vated or simple assault or any thing else they just basica lly took h i m i n t o custody
. Once they take him into custody they then sear ch him. And but that sear ch is incident to an arr est that is not based on the defe ndant actua lly having committed
an ac tual crime that the office r wa s awa re of
. So, the resulting sear ch I believe the proce eds of that sear ch which was done without benef

it of any war

rant would be and is order ed suppressed. The subsequent later sear ch based on the defe ndant alre ady being under arr est and then saying the he had a car parke d out on Arg yle whateve r was rec overe d during th e s ear ch of that
sear ch is the fruit of t he pois onous tree from the initial illega l arr est so that will be suppressed a s well.” There afte r, the State soug ht rec onsideration. Dur ing the argument on the motion, the State addre ssed an a dditional issue concer ning the transcr ipt of the prior he aring . Specifica lly , the State ar g ued the tra

nscript er roneously ref lected that in the second ra dio call Off icer Der visevic re ceive d defe ndant “thre atene d to call” the vic tim. Accordingto the State, the transcr ipt should have rea d “thre atene d to kill.” Additionally , the State contende d the offic ers, in fac t, had proba

ble ca use to arr est defe ndant for the offe nse of tele phone har assment. Yet, e ven if
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the offic ers lac ked proba

ble ca use, they possessed a r easona

ble, ar ticulable suspicion to stop and frisk def endant ba sed upon the orig inal call, the of fice r’s re sponse, and the se cond ca ll
conce rningdefe ndant’s re newe d actions. The State f urther a rgued that handc uffingthe def endant for the of fice r’s saf ety did not convert the e ncounter into a seizure, g iven that an individual, under the circ umstances, c ould possess a wea pon in light of the nature of the threats to the victim. The trial c ourt denied the motion to reconsider, f irst rejec ting the State’ s claim that Der visevic’s testimony

was e rrone ously

transcr ibed. The judg e explained that the answ er the office r g ave “ resonated” with him and the tra nscript was c onsistent with his rec ollection and
rea ction to the testimony . Additionally , the trial judg e discounted the office r’s re corde d answe rs
on cross-e x amination wher e the que stions posed refe rre d to a threat to “kill” the victim. The trial judg e fur

ther noted that there w as no testimony to indicate any

mention defe ndant was a

rmed whe n the offic ers a

pproac hed him. Fur

thermore , the way

the offic ers “rolled up on” defe ndant and immediately handcuf fed a nd sear ched him led the c ourt to conclude defe ndant was unde r ar

rest at that time. Ye t, there w as no indication of the ba sis for the ar rest. Instead, not until the hear ing on the motion to reconsider did the State of fer the explanation that defe ndant was a

rre sted or subjec t to arre st for telephonic hara ssment. I n fac t, the court obser ved: “I don’t think that the office r was taking him in custody for the telephone hara ssment
or had any idea that may

be – he had no fac ts to base that on that it was hara ssment. He didn’t know any words that wer e used or whateve r but in any event it seeme d like it was an a

rre st.”
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In the cour

t’s view, while the of

fice r could have eng ag ed def endant in a c onversation as a par t of a fie ld interview, whic h defe ndant could have equally ref used, that wa s not what occ urre d. Instead, the of

fice r’s a ctions in patting de fenda nt down, even if

it was for the office r’s saf ety , was not proper w ithout “some articulable fac ts or rea sonable fe ar that this person might in fac t have a
wea pon and be in da

ng er.” Even if these conditions ex isted, the offic er did not ar ticulate them. In conclusion, the c ourt stated: “And quite fra

nkly since never was there ever any mention of a wea pon, not even in my finding of fac ts, not even a threat to kill, based on his direc t examination, I don’t believe the office r was justified in having an inquiry , in just turning an investigation
on the street int o something that become a sear ch so the motion to rec onsider is respe ctfully

denied.” The State then f

iled a ce rtificate of substantial impairment and a notice of a

ppeal. This appea l followed. As noted, de fenda nt did not appear

or otherw ise participate in this appeal. ANALYSI S I t is ax iomatic that ruling s on motions t o suppress ar e re viewed pur suant to the two-par t standard a

rticulated in Ornelas v. United States , 517 U.S. 690, 699, 134 L . Ed. 2d 911, 920, 116 S. Ct . 1657, 1663 (1996), whe re f indings of historica l fac t are viewed f or cle ar e rror

with revie wing courts af

fordingdue we ight to any infere nces dr awn ther efr om by the trial cour

t and the ultimate leg al rulingconce rningsuppression is review ed de novo . Fa ctual finding s are g iven g reat defe renc e and a

re not subjec t to rever sal unless they are contra

ry to the manifest we ight of the evidenc e. People v . Luedemann , 222 I ll. 2d 530, 542, 857 N.E.2d 187, 195 (2006). “ This
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defe rential standa

rd of r eview is g rounded in the r eality that the circ uit court is in a superior position t o deter

mine and we igh the cre dibilit y of the witnesse s, observe the witnesses’ demea nor, and r esolve c onflicts in their testimony .” People v . Jones , 215 I ll. 2d 261, 268, 830 N.E.2d 541, 548 (2005) . Such finding s are ag ainst the manifest we ight of the evidenc e only

if the opposite conc lusion is clearly evident. People v . Bev erly , 364 I ll. App. 3d 361, 368, 845 N.E.2d 962, 969 (2006) . Reviewingcourts, howe ver, r emain fr ee to a ssess the fa cts in conce rt with the issues to draw c onclusions when dete rmining a ppropriate relief

. Luedemann , 222 I ll. 2d at 542, 857 N.E.2d at 195. We first addre ss the State’s contention that the tria l judge ’s fa ctual finding s were ag ainst the manife st weig ht of the evide nce. A ccor ding to the State, the trial court’ s adoption of Off icer Der visevic’s testimony

that defe ndant was “ threatening to call” the vic tim was ag ainst the manifest we ight of

the evidenc e. The State’s ar g ument is premised upon the c ourt’s re jection of its claim that the transcr ipt contained a ty pog raphic al er

ror. The State contends the e vidence of the offic ers’ “immediate r eac tion” to the second c all make the tr ial court’s f inding “ unrea sonable and ar bitrary to find that defe ndant mere ly threatened to ‘c all’ the victim the sec ond time.” On the re cord be fore us, we c annot conc lude the trial c ourt’s fa ctual conc lusions were ag ainst the manifest we ight of the evidenc e. Unque stionably , the trial cour t was in the best position t o evaluate the evide nce be fore it. Jones , 215 I ll. 2d at 268, 830 N.E.2d at 548. I t is clea r the trial judg e paid c are ful attention to the evidenc e pre sented at the hear ing a nd was confide nt in his recollections. More over, the judge ’s impressions are buttressed by the observations and profe ssional assessment of the c ourt repor ter. It is not our place to substitute
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our judg ment for that of

the trial judg e on this fac tual matter. See Corral v. Mervis Industries, Inc. , 217 I ll. 2d 144, 155, 839 N.E.2d 524, 531 (2005). Ne verthe less, we do not per ceive that the opposite conclusion is “cle arly evident.” Bev erly , 364 I ll. App. 3d at 368, 845 N.E.2d at 969. Manifestly , our conc lusion is t he same as to the basic historica l fac ts supporting the tria l judge ’s suppression orde r. Next, we turn to the trial cour t’s leg al conc lusion in suppressing the e vidence ag ainst defe ndant. Funda

mentally , the fourth amendment to the United States Constitut ion (U.S. Const., amend. IV) a

nd article I , section 6, of the I llinois Constit ution (I ll. Const . 1970, art. I , §6) protec t individuals from unrea sonable sea rche s and seizures. See People v . Rosenberg , 213 I ll. 2d 69, 77, 820 N.E.2d 440, 446 (2004) . As our supre me cour t aptly observe d in Luedemann , “The touchstone of the f

ourth amendme nt is reasona bleness.” Luedemann , 222 I ll. 2d at 566, 857 N.E.2d at 208. Our four th amendment jurisprude nce instruc ts that not all encounters be tween c itiz ens and police of

fice rs re sult in a seizure. People v . W hite , 221 I ll. 2d 1, 21, 849 N.E.2d 406, 418 (2006). I llinois courts utiliz e a thr ee- tiered a naly tical fra mework to a

pply to law enf

orce ment interac tions with private citizens. They include, (1) arr ests, requiringprobable cause ; (2) brie f investigative detentions or “ Terrystops” requiringa re asonable , articula ble suspicion of criminal activity ; and (3) e ncounter s devoid of coe rcion or de tention, not impl icatingthe fourth amendment. Luedemann , 222 I ll. 2d at 544, 857 N.E.2d at 196. In the ca se sub judice , the State aptly conce des that the third categ ory of enc ounters has no application to the instant fac ts, give n its acknowledg ment:
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“The office rs conduc ted a va lid Terrystop and frisk whe n they handcuf fed defe ndant and c onducted a limit ed sea

rch f or we apons bec ause, g iven the fa cts known to them at that time and the infe renc es that they wer e entitled to dra

w based on the ir law e nforc ement tra ining, de fenda nt’s behavior

cre ated a
rea sonable suspicion that cr iminal activity was a foot and that de fenda nt might be
arme d and dang erous.” L ikewise, in ar

ticulating his ruling , the trial judg e re jected the interpre tation of the eve nts as a field interview

of def endant. We agree . The re cord be fore us demonstrates that the of fice rs approa ched de fenda

nt and immediately

restra ined him, without the ex chang e of a ny words or other plea santries. Conseque ntly , we c onclude this could not be c hara cter ized as a conse nsual encounte r as it involved a sig nificant de g ree of coe rcion a nd detention. See Luedemann , 222 I ll. 2d at 544, 857 N.E.2d at 196. On appe al, the State off

ers f ive re asons why

the trial cour

t was incorr ect in conc luding defe ndant was a

rre sted without probable c ause upon be ing ha ndcuff ed. To this end, the State posits that: (1) handcuf

fingduringthe cour se of a Terry stop does not elevate the enc ounter to an
arr est; (2) he re the series of events de monstrated def

endant thre atene d to kill t he victim; (3) the handcuf fingwas done for De rvisevic’ s safe ty and not bec ause he “believe d he could automatically

sear ch anyone that he w ants to talk to”; (4) whe n possessed of spe cific a rticulable fac ts that would lead an of fice r to believe a citizen is armed or dang erous, a

n office r may

conduct a fr isk before posing a

ny questions; and (5) whe n Der visevic re sponded to the sec ond call objective f

acts we re pr esent to g ive rise to a r easona ble belief defe ndant was involved in c riminal
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activity , as we ll as armed a nd dang erous. Although se arc hes and se izures ge nera lly require a wa

rra nt issued upon probable c ause, it is ax iomatic that law enf

orce ment office rs may

conduct wa

rra ntless investigatory

stops where the office r “c an point to specific, a rticulable f

acts that, whe n combined with rational infere nces derive d there from, cr eate rea sonable suspicion that the pe rson seized has committed or is about to commit a crime.” Bev erly , 364 I ll. App. 3d at 368, 845 N.E.2d at 969, c iting Terry v. Ohio , 392 U.S. 1, 21-22, 20 L . Ed. 2d 889, 906, 88 S. Ct. 1868, 1880 (1968); People v . Lee , 214 I ll. 2d 476, 487, 828 N.E.2d 237, 246 (2005) . Moreove r, sec tion 107-14 of the Code of Criminal Procedur e of 1963 ( Code) codif ies Terryand provide s, “A pe ace office r *** may stop any person in a public place for a

rea sonable pe riod of time when the office r re asonably infers f rom the circ umstances that the pe rson is committi ng , is about to commit or has committed an offe nse ***.” 725 I L CS 5/ 107-14 (West 2008). In turn, section 108-1.01 of the Code, “Sea

rch D uring Tempora ry Questioning ,” provide s: “When a peac e office r has stopped a person for tempora ry q u es tioning pursuant to Section 107-14 of this Code and rea sonably suspects that he or

another is in dang er of attack, he may sear ch the person for wea pons. I f the office r discovers a weapon, he m ay t ake it until the completion of t he questioni ng , at which time he shall either return the wea pon, if lawfully possessed, o r ar re st the person so questioned.” 725 I L CS 5/ 108-1.01 (West 2008). Principles underly

ing our analy sis do not mandate that the fa cts formingthe basis of
rea sonable suspicion nee d rise to the leve l of probable cause and do not re quire a n office r to
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actua lly witness a violation. People v . Richardson , 376 I ll. App. 3d 612, 625, 876 N.E.2d 303, 314 (2007). Ne verthe less, a “ Terry investigative detention ca nnot be justified, howeve r, on the basis of ‘unpa

rticularized suspicion’ or on a ‘hunch.’ ” People v . Gherna , 203 I ll. 2d 165, 181, 784 N.E.2d 799, 808-09 ( 2003), quoting Terry , 392 U.S. at 27, 20 L . Ed. 2d at 909, 88 S. Ct. at 1883. As the cour

t in Bev erlyexplained: “We obj ectively consider whether a st op wa s p ro per, looking at the facts available to the office r at the time of the seizure to de termine whether his or her actions wer e appropr iate. Luedemann , 357 I ll. App. 3d at 420. The situation encounte red by the office r must be so far from the ordinary that any competent office r would be expected to act quickly .” Bev erly , 364 I ll. App. 3d at 369, 845 N.E.2d at 969. Establishing whe ther a

n office r is justified in conducting a Terrystop is a fac t-driven pr ocess a nd must be approa ched on a

case -by -ca se basis. People v . Hubbard , 341 I ll. App. 3d 911, 917, 793 N.E.2d 703, 709 (2003)
. In the ca se sub judice , the offic ers r esponded to a second c all conce rningdefe ndant at the same location. The radio c all essentially indicated that de fenda

nt had ag ain pre sented himself at the victim’s home, possibly trespassing , hara ssing or threa tening her. N otably , this was in the wake of the off

icer s escor

ting him off of

the pre mises approxim ately 10 minutes earlier . When the offic ers r eturne d to the are a, they observe d the def

endant, onc e more , walkingdown the block. B ased upon the fac ts objectively available to the office rs at the time, it was re asonable for them to conduct a br ief investig atory stop. See Bev erly , 364 I ll. App. 3d at 369, 845 N.E.2d at 969.
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Nonethele ss, the question befor e us re quires more than mere ly deter mining whe ther the stop was appr opriate at its i nception. We must consider whe ther the stop esc alated, r equiringan additional quantum of suspicion or ca use to justify

the offic er’ s actions. Acc ordingto Office r Der visevic’s testimony , the offic ers a pproac hed def

endant a nd, with utterly

no discussion or interac tion, placed him in handcuf fs, conduc ted a se arc h of his person, a nd discovere d a handgun
secr eted in his sock. Prior to that point, there w as no indication def endant wa s armed. Moreove r, the testimony

at the hea

ringdemonstrated that defe ndant was c oopera tive with respondingoffice rs on both occa sions. I n support of its contention that the offic ers’ actions in handcuf fingdefe ndant did not transform the e ncounter into an arr est, the State cites numer ous
case s. Those ca ses ar e fa ctually inapposite to the ca se at ba r. We do, of course , rec og nize that not all circumstance s where in handcuf fingand dete ntion
occur nece ssarily

conver t a lawf ul Terry stop into an arre st. People v . W alters , 256 I ll. App. 3d 231, 237, 627 N.E.2d 1280, 1285 (1994) ; People v . W addell , 190 I ll. App. 3d 914, 926, 546 N.E.2d 1068, 1075 (1989) . Yet, cour ts have obser

ved that the use of handc uffs in a pa rticular detention is indicative of a n arr est, rathe r than a Terry stop, beca use it heig htens the degree of intrusion and is not, ge nera lly , part of a such a stop. People v . Arnold , 394 I ll. App. 3d 63, 70, 914 N.E.2d 1143, 1150 (2009) . I mportantly , conce rns for of fice r saf ety and the sa fety

of the public can, in c erta in limi ted circ umstances, justify handcuf fingduringa brie f investig atory stop. Arnold , 394 I ll. App. 3d at 70, 914 N.E.2d at 1150. More over, “ the fa ct that handc uffingtakes place befor e an of

fice r has pr obable c ause to a rre st is not an automatic violation of the fourth amendment.” Arnold , 394 I ll. App. 3d at 71, 914 N.E.2d at 1150.
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In Arnold , our Second D istrict examined factua l scena rios wher e re straining a suspec t with handcuf

fs would be a

ppropriate , including thr ee a rmed robbe ry

suspects in a c ar shor

tly afte r the off

ense ( People v . W

alters , 256 I ll. App. 3d 231, 235, 627 N.E.2d 1280, 1284 (1994)) and nar cotics ca ses wher e the suspec t is in a vehicle ( People v . Nitz , 371 I ll. App. 3d 747, 754, 863 N.E.2d 817, 824 (2007) , citing People v . W addell , 190 I ll. App. 3d 914, 927, 546 N.E.2d 1068, 1076 (1989))
. Arnold , 394 I ll. App. 3d at 71, 914 N.E.2d at 1150. We note that W

alters , Nitz , and W

addell are amonga litany

of ca ses cited by

the State in support of the a

rgument that placinga suspec t in restraints does not amount to an a rre st per se. In W alters , the cour

t found the off

icer ’s ac tions in detaining the suspe cts in an ar med robbe ry
wer e re asonable under those c ircumstance s beca use one c ould rea sonably conclude the suspects
wer e ar med and da

ng erous. W

alters , 256 I ll. App. 3d at 238, 627 N.E.2d at 1286; People v

. Staten , 143 I ll. App. 3d 1039, 1052-53, 493 N.E.2d 1157, 1164-65 ( 1986) (plac ing suspe ct in squad ca r viewe d as a limited intrusion during inve stiga tion of, ultim ately

fata l, office r-involved shooting). I

n Nitz , the cour

t determined that give n the evidenc e, the issue of handcuf fingwas not rele vant bec ause the office r had pr obable c ause to a rre st prior to the time the defe ndant was detained ba sed on the off icer ’s detec tion of the odor of c annabis. Nitz , 371 I ll. App. 3d at 754, 863 N.E.2d at 824. L ikewise, in W addell , the cour

t concluded the re w as “nothingunrea sonable about police of

fice rs beingappre hensive c oncer ning the risks inherent in interdic ting dr ug traff ic” a nd that the abse nce of

a we apon wa s not the same as a n absenc e of da

ng er. Consequently , it was rea sonable to handc uff the de fenda nt during the appr ox imately 15 to 20 minutes it t ook to conduct a c anine se arc h of the ve hicle, which unc overe d coca ine in the trunk.
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W addell , 190 I ll. App. 3d at 927, 546 N.E.2d at 1076. In eac h of these c ases, pr obable c ause to
arr est was de veloped dur ing the course of the de fenda nts’ detentions. The State avers that “ this Court has held that suspicion of a cr ime of violence or a dr ug traff icking offe nse is sufficie nt to just ify the use of ha

ndcuff s duringa Terry stop. [ Citation.] ” This is a telling a

nd important observation in the context of the c ase pr esently befor e us. Nonethele ss, this i s no such ca se. He re, de fenda nt was immediately

restra ined and se arc hed. There was no tempora

ry questioning pur suant to section 107-14. No a ttempt to investi g ate the situation was undertaken in any manner . The off

icer s were arme d only

with a ra dio call direc ting them to return to a sc ene the y rec ently depar ted. At best the fa cts they possessed arg uably suffice d to support a Terrystop. See Bev erly , 364 I ll. App. 3d at 369, 845 N.E.2d at 969. Instead, we concur

with the trial judg e that the of fice rs did what ca

n only be desc ribed a s an
arr est. Another c ase c ited by the State, People v . Vena , 122 I ll. App. 3d 154, 460 N.E.2d 886 (1984), is off

ere d as pre senting an ana logous situation to the ca se at ba r. Howe ver, the fac ts of Vena differ

importantly . In Vena office rs re sponded to ca lls concer ning suspicious men in a

n
are a whe re se vera l burg laries r ece ntly occur red. The incident took place on a snowy night, with six to eig ht inches of snow on the g round. The of fice rs followed f

ootprints in the snow from the residenc e whe re one of the c alls orig inated, eve ntually observingthe def

endants. Vena , 122 I ll. App. 3d at 161, 460 N.E.2d at 891. The off icer s announce d their off

ice a nd order ed the defe ndants to halt. I nstead, the de fenda nts fled on foot. De fenda nt Vena phy sically

resisted eff orts to restra in him, resulting in an injury to one of the of

fice rs. Vena , 122 I ll. App. 3d at 157,
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460 N.E.2d at 889. Ac cordingto the testimony of one of the offic ers, the de fenda

nts were taken into custody

beca use “the y ran f rom police, fa iled to stop, and ref used to identify

themselves.” Vena , 122 I ll. App. 3d at 158, 460 N.E.2d at 890. Dur ing a pat-down se arc h of Ve na, two lar g e objects we re f

elt in one of his bac k pockets, whic h turned out to be “ a y ellow plastic flashlig ht and a la rg e foldingknife.” The men w ere then transpor ted to the police station and 15 to 20 minutes later the of

fice rs re ceive d a ca ll about an attempted bur g lary in the are a whe re defe ndants wer e obser

ved. Ve na wa s sear ched a g ain and more items were rec overe d from him, some of which w ere identified as pr ocee ds from a r ece nt burg lary in an adjoining town patrolled by the same police depar

tment. Vena , 122 I ll. App. 3d at 159, 460 N.E.2d at 890. Ba sed on these f

acts, the c ourt conc luded the off icer s “had know ledg e of suf ficient specific and ar

ticulable fa cts to justify

a stop of def

endants in orde r to maintain the status quo while they

investigated for c riminal activity .” Vena , 122 I ll. App. 3d at 161, 460 N.E.2d at 892. Additionally , the offic ers we re justified, ba sed on Terry , as we ll as sections 107-14 and 108- 1.01 of the Code, to sea

rch f or we apons, whe re the men attempted to fle e and where Vena offe red phy sical re sistance. Vena , 122 I ll. App. 3d at 161, 460 N.E.2d at 892. The ref ore the detention
was re asonable in order to c onduct furthe r investig ation. Fur thermore , the circ umstances of the detention and tra

nsportation of the de fenda nts were not unrea sonable, pa rticularly wher e “[n]o eff ort was made to interrog ate or identify defe ndants or impose any intrusive investigation upon them.” Vena , 122 I ll. App. 3d at 162, 460 N.E.2d at 892. Additionally , takingthe men to the station was not any

more “ intrusive per sethan detaining them in the open fie ld or in the squad
car . In fac t both the squad ca r and the stationhouse protec ted the def endants a nd police off

icer s
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from blizz ard- like weather c onditions.” Vena , 122 I ll. App. 3d at 163, 460 N.E.2d at 893. The ultimate arre st of the def

endants did not occ ur until shortly afte r – within 15 to 20 minut es – their
arr ival at the police station and was ba sed upon proba ble ca use and w ithin an hour of the initial call. The ref

ore, the trial court’ s ruling suppr essing the items rec overe d in the Terrypat-down and later sear ch incident to the a

rre st at the station was in err or. Vena , 122 I ll. App. 3d at 164-65, 460 N.E.2d at 894. Absent the tra

nsportation component of Vena , the situation is clearly distinguishable f

rom the ca se at ba

r. He re, the defe ndant did not attempt to flee or strug g le. On the c ontrary , the unrebutted te stimony

indicated that he was fully cooper ative at a ll points duringthe intera ctions with the office rs, including the initial call when he was a sked to leave the pre mises and when the office rs appr oache d him following the se cond ca ll. The court in Vena emphasized the ac tions of the def endants in ig noringthe offic ers’ order , attempting to f lee, a nd Vena ’s re sistance to being detained, a s justify ing a

nd supporting the rea sonablene ss of the initial pat-down sea rch. Vena , 122 I ll. App. 3d at 161, 460 N.E.2d at 892. No suc h circ umstances a re pr esent in the c ase sub judice . Instead, the of

fice rs wer e solely

respondingto a ca ll. There w ere no additional investigative developments to support takingdefe ndant into custody
. Arguably , in the instant case the office rs could have inferr ed, base d on the ra dio call, that defe ndant had just committed an off ense a nd, there fore , been justified in tempora rily stopping him in accor dance with section 107-14. 725 I L CS 5/ 107-14 (West 2008). Howe ver, it is the subsequent provision of sec tion 107-14, permitting of fice rs to “dema

nd the name a

nd addre ss of the per son and an e x planation of his ac tions” (725 I L CS 5/ 107-14 (West 2008)), which we de em
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problematic f

or the re sponding of

fice rs. The r ecor d demonstrates the office rs did nothing of the sort. Yet, that is not the end of the analy sis. Section 108-1.01 permits office rs to sear ch a subje ct stopped for te mporary

questioning, pur suant to section 107-14, for wea pons where the offic er “re asonably

suspects that he or

another is in dang er of

attack.” 725 I L CS 5/ 108-1.01 (West 2008). We note that an of fice r nee d not have a

bsolute cer

tainty a suspec t is armed in orde r to justify a sea rch. People v . W

are , 264 I ll. App. 3d 650, 655, 636 N.E.2d 1007, 1010 (1994). Instead, “ The issue is whethe r a r easona bly prudent pe rson in the circ umstances would be
war rante d in the belief that his safety or that of other s was in dang er.” W are , 264 I ll. App. 3d at 655, 636 N.E.2d at 1010, c iting Terry , 392 U.S. at 27, 20 L . Ed. 2d at 909, 88 S. Ct. at 1883. In the ca se at ba

r, the re cord of

fer s no support for a

findingof any

rea son to so suspect. As noted, def

endant wa s cooper ative at a ll tim es duringhis encounter s with police. The r adio call wa s not sufficiently

detailed to wa

rra nt a suspicion that defe ndant posed a risk of attac k. Unlike the situation prese nted in W are , the offic ers did not observe a bulg e in def endant’ s clothing, he was not obser ved in an a

rea known for gun arr ests, and he w as not leavinga “notorious location.” W

are , 264 I ll. App. 3d at 656, 636 N.E.2d at 1010-11. H ad the of fice rs stopped defe ndant and c onducted a further investigation of the ca ll trigg eringtheir re sponse, a basis to searc h defe ndant might ha ve ar isen based upon a

sear ch incident to ar

rest base d on probable cause . Fur

thermore , attempting to justify the offic ers’ actions base d on their ef forts to insure their own safe ty

are understanda

ble. Howe ver, the y

are unavailingwhen juxtaposed to the circ umstances of

this case, whe re the re w as no basis to suspect the pr esenc e of w eapons or risk of attac k. As additional support for the office rs’ a ctions, the State points out the recognition that
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domestic violence situations are potentially dang erous, ha zardous, and unpre dictable f or off icer s. This claim harke ns back to our c onclusion in People v . Rivera , “We find that the mer e fa ct that an off icer believes dr

ug deale rs ca

rry wea pons or nar cotic ar

rests involve we apons is insufficient alone to support re asonable suspicion to just ify a Terryfrisk.” People v . Rivera , 272 I ll. App. 3d 502, 509, 650 N.E.2d 1084, 1090 (1995) . We are equally reluc tant to believe the nature of domestic disturbance s is sufficient to justify such an intrusion. Consequently , the trial cour t’s order g rantingdefe ndant re lief on his motion was not in
err or. Althoug h there may well have been a

rea sonable suspicion to war rant a Terrystop, that is simply not what occ urre d. The trial c ourt corr ectly conclude d defe ndant’s ar rest wa s not lawful. The State fur

ther a rgues the trial c ourt’s suppre ssion of the bullets found in defe ndant’s vehicle w as er

roneous. Ac cordingto the State, that evidenc e wa s discovere d by virtue of a

valid inventory sear ch, as a

lawful sea

rch inc ident to a valid ar

rest, or, in the a lternative, the bullets
wer e subjec t to the inevitable discover y rule. The towing a

nd inventory

sear ch occ urre d subsequent to def

endant’ s arr est. Acc ordingto Dervisevic , afte r advisingdefe ndant of his Miranda rig hts, he asked him whe ther he had a c ar. D efe ndant re sponded af firmatively

and descr ibed wher e it was pa rked. D ervisevic then, in order to “make sur e prisoner

[ sic ] property

is safe ,” re turned to the 1300 block of Arg yle and located the ca r, which w as par

ked illeg ally

in a desig nated ha

ndicappe d parkingspot. Dervisevic issued a citation, re quested a tow truck, a

nd conducte d a sea

rch where in he found ammuniti on matchingthe ca liber of the ha ndgun rec overe d from def endant. The State descr ibes Der visevic’s c onduct as fa lling within the rubric of the “community

car etakingfunction” of

the police.

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In W ong Sun v. United States , the Supreme Court de termined that e vidence obtained by virtue of a

n illega l arre st may

trig g er the application of the exclusionary rule, makingsuch evidenc e inadmissible ag ainst a def endant. W

ong Sun v. United States , 371 U.S. 471, 484-86, 9 L . Ed. 2d 441, 453-54, 83 S. Ct. 407, 415-17 (1963). Ye t, a conc lusion that a defe ndant was illega lly detained is not the sole c onsideration in deter mining whe ther e vidence obtained subsequent to the dete ntion will be admissibl e. People v . Johnson , 237 I ll. 2d 81, 92, 927 N.E.2d 1179, 1186 (2010), c iting People v . Lovejoy , 235 I ll. 2d 97, 130, 919 N.E.2d 843, 861 (2009). In Lovejoy , wher e the de fenda nt sought the e x clusion of ce rtain statements, our supr eme c ourt explained: “The rele vant inquiry is whether the statements bear a sufficie ntly close rela tionship to the underlying illega lity
. New Y ork v. Harris , 495 U.S. 14, 19, 109 L
. Ed. 2d 13, 21, 110 S. Ct. 1640, 1 6 4 3 (1990). Gene rally , courts resolve this question by considering whether the e v id e n c e w a s o b ta in e d ‘ b y me a n s s u f f ic ie ntly distinguishable to be purg ed of the primary taint’ of illega lity
. W ong Sun v. United States , 371 U.S. 471, 487-88, 9 L
. Ed. 2d 441, 455, 83 S. Ct. 407, 417 (1963). Howeve r, this attenuation analy sis is only appropr iate wher e the evidenc e soug ht to be suppressed
was actua lly obtained as a re s u l t of some illega l g overnme nt activity
. Harris , 495 U.S. at 19, 109 L . Ed. 2d at 21, 110 S. Ct. at 1643; People v. McCauley , 163 I ll. 2d 414, 448 (1994) (‘[w]hen police conduct results in a violation of constitutional rig hts, evidenc e obtained as a result of that violation, and only evidenc e so obtained, is to b e s u p p ressed’); People v. Gerv asi , 89 I ll. 2d 522, 528 (1982) (‘[t] he bas i c
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assumption underlying the “fr uit of the poisonous tree ” doctrine is that th e c halleng ed evidenc e is derive d from some violation of a sta t u t ory or constitutional rig ht’ (empha sis in original)) .” Lovejoy , 235 I ll. 2d at 130, 919 N.E.2d at 861. Given the state of this rec ord, we reje ct the cla im that the series of e vents descr ibed is sufficie nt to remove the ta int of illega lity . Eac h event f ollowed and f

lowed fr om the initial, unlawful a

rre st of defe ndant. We do not discern a brea k in the chain suff

icient to attenuate the
rec overy of this evidence from the initial illega lity of the a rre st. Moreover , the State’s char acte rization of Dervisevic ’s ac tions as manifesting a “c ommunity car etakingfunction” is simil arly unavailing . A re view of c ase la w makes c lear

that the conc ept of “ community
car etaking ” is most often invoked to descr ibe enc ounters betwe en police of fice rs and c itiz ens and not, nece ssarily , for the pr otection of prope rty . See Luedemann , 222 I ll. 2d at 548, 857 N.E.2d at 198. Unquestionably , a police of fice r, such a s Offic er D ervisevic , would be empowe red a nd proper ly oug ht to issue citations to vehicles illega lly parke d, as we ll as towing the m when
war rante d. Howeve r, our r esea rch did not disclose a

ny case s where vehicles towe d for pa rking violations were subje ct to inventory sear ches. L ikewise, no c ases we re ide ntified by the State or
reve aled by

our re sear ch whe rein a

parkingviolation subject to towing provide d probable cause to searc h. As noted, re asonable ness is the fundame ntal consideration in fourth amendment analy ses. See Luedemann , 222 I ll. 2d at 566, 857 N.E.2d at 208. Consequently , even if the parkingviolation, inventory sear ch, and tow w ere separ ated f rom defe ndant’s unlawf

ul arre st, the
sear ch wa s unrea sonable in four th amendment ter

ms as lackingsufficie nt probable c ause.
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The State a dditionally

points to t he inevitable disc overy doctrine a

n exception making the ammunition found in the vehicle a dmissibl e ag ainst defe ndant. This exception permits evidence “to be a dmitted where the State ca n show that such evide nce ‘ would inevitably have be en discovere d without refe renc e to the police e rror or misconduct.’ Nix v. W illiams , 467 U.S. 431, 448, 81 L . Ed. 2d 377, 390, 104 S. Ct. 2501, 2511 (1984); [ citation].” People v . Sutherland , 223 I ll. 2d 187, 228, 860 N.E.2d 178, 209 (2006). We ca nnot conclude this evide nce w ould have been ine vitably

discovere d based on the rec ord bef ore us. The “ ‘police err or or misconduc t’ ” is inext rica bly linked to the discovery

of this evidence . As noted, we reje cted the State’ s argument as to the inventory

sear ch base d on the par

king violation. Since the State’ s argument in favor of inevitable discove ry

is unmist akably

linked to the matter of illeg al par king, w e find this argument simil arly meritless. For the fore g oing r easons, the judg ment of the c ircuit court of Cook County

is affirme d. Affir med. FI TZ GERAL D SMI TH and H OWSE, J J ., concur .

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