No.  3--01--0772

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

THE PEOPLE OF THE STATE OF	)  Appeal from the Circuit Court

ILLINOIS,					)  of the 12th Judicial Circuit,

						)  Will County, Illinois,

	Plaintiff-Appellee,		)

						)

	v.					)  No. 00--CF--1960

						)

JOSEPH E. SMITH,			)  Honorable

						)  Stephen D. White,

	Defendant-Appellant.	)  Judge, Presiding.

_________________________________________________________________

	JUSTICE SLATER delivered the opinion of the court:

_________________________________________________________________

	Defendant Joseph Smith was convicted of unlawful possession

of a controlled substance (720 ILCS 570/402(c) (West 2000)) at

the conclusion of a stipulated bench trial and he was sentenced

to a term of two years' probation.  On appeal, the defendant

contends that the trial court erred in denying his motion to

suppress.  We reverse.

	Facts

	The only witness to testify at the suppression hearing was

Officer Darrell Gavin of the Joliet Police Department.  Gavin and

his partner, Officer Jose, were on patrol on November 24, 2000,

when they saw the defendant at 1:43 a.m. walking in the Fairmont

housing project in Joliet, Illinois.  The defendant had his hands

clenched, and Gavin saw the defendant put something into one of

his coat pockets.  Gavin decided to question the defendant because Joliet has a "trespass agreement" with Fairmont which

requires a "pass" to be in the housing project.  However, before

the officers reached the defendant, he crossed the street,

thereby leaving the housing project and the City of Joliet and

entering Lockport, Illinois.

	By the time Officers Gavin and Jose drove around to the

defendant's location, he was standing in front of a building that

Gavin described as a "known drug house."  Gavin testified that

the defendant was not doing anything other than simply

"[s]tanding there with his hands in his pockets."  The two

officers got out of their squad car, approached the defendant and

asked him what he was doing.  The defendant replied that he was

waiting for his cousin.  Officer Gavin then asked the defendant

what he had in his pockets and the defendant did not answer. 

Gavin told the defendant to take his hands out of his pockets and

the defendant appeared to become nervous and looked around.

	Next, Gavin initially testified that the defendant turned

and began to walk away.  After reviewing his written report,

however, Gavin testified that the defendant began to back away

from the officers.  The officers told the defendant to stop and

to take his hands out of his pockets.  The defendant continued to

back away and kept his hands in his pockets.  After asking the

defendant "a few more times" to take his hands out of his

pockets, both officers grabbed the defendant's arms.  After the

defendant began to struggle, the officers forced him to the

ground and placed him under arrest.  A subsequent search disclosed that defendant was in possession of one-tenth of a gram

of cocaine.

	Officer Gavin admitted that he had no idea what the

defendant might have had in his pockets.  He also acknowledged

that he never asked the defendant if he had a "pass" for the

Fairmont housing project.  At the conclusion of the hearing, the

trial court denied the defendant's motion to suppress.

	Analysis

	Defendant asserts that the trial court erred in denying his

motion to suppress because:  (1) the Joliet police officers had

no jurisdiction to arrest him in Lockport; and (2) the officers

had no justification for detaining, frisking or arresting him and

therefore violated his rights under the fourth amendment. 

Because we find that the latter contention requires reversal of

the defendant's conviction, we do not address the jurisdictional

argument.

	A ruling on a motion to quash arrest and suppress evidence

is generally subject to reversal only if it is manifestly

erroneous.  People v. Krueger, 175 Ill. 2d 60, 675 N.E.2d 604 (1996).  However, where, as here, neither the facts nor the

credibility of witnesses is at issue, de novo review is appropriate.  See People v. Dilworth, 169 Ill. 2d 195, 661 N.E.2d 310 (1996).

	The fourth amendment to the United States Constitution

provides that "[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  U.S. Const.,

amend. IV.  However, the fourth amendment was not intended to

eliminate all contact between citizens and the police, but to

prevent arbitrary and oppressive interference with an

individual's privacy and personal security.  United States v. Mendenhall, 446 U.S. 544, 553-54, 64 L. Ed. 2d 497, 509, 100 S.  Ct. 1870, ___ (1980).  Thus the police do not violate the fourth

amendment by merely approaching an individual on the street and

putting questions to him if the person is willing to listen. 

Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983).

			"The person approached, however, need

not answer any question put to him; indeed,

he may decline to listen to the questions at

all and may go on his way.  [Citations.]  He

may not be detained even momentarily without

reasonable, objective grounds for doing so;

and his refusal to listen or answer does not,

without more, furnish those grounds."  Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103

S. Ct. at ___.

	The State contends that the initial encounter between the

defendant and Officers Gavin and Jose involved no coercion or

detention and was a consensual police—citizen interaction.  We agree.  "Obviously, not all personal intercourse between

policemen and citizens involves 'seizures' of persons."  Terry v. Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, ___ n.16 (1968); see also Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, ____ (1991) ("Since

Terry, we have held repeatedly that mere police questioning does

not constitute a seizure.").  In this case there was initially no

seizure because the defendant was already stopped, standing in

front of a "known drug house."  Furthermore, when the officers

left their vehicle and asked the defendant what he was doing, he

was not seized.  "There is nothing in the Constitution which

prevents a policeman from addressing questions to anyone on the

streets."  Terry, 392 U.S. at 34, 20 L. Ed. 2d at 913, 88 S. Ct. at ___ (White, J., concurring).

	Of course, the defendant was free at that point to answer

the officers' questions or ignore them; he could also remain

where he was or simply walk away.  See Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at ___.  Defendant chose to

respond to the question about what he was doing but to ignore the

question concerning the contents of his pockets.  Somewhere in

the sequence of events which followed, a seizure occurred:  (1)

defendant was told to take his hands out of his pockets; (2)

defendant became nervous, looked around and began to back away

from the officers; (3) defendant was told to stop and to take his

hands out of his pockets; (4) defendant continued to back up and

kept his hands in his pockets; (5) defendant was told a few more

times to take his hands out of his pockets; and (6) the officers

grabbed the defendant's arms.

	A person is seized within the meaning of the fourth

amendment when the police, by means of physical force or show of

authority, have in some way restrained that person's liberty. 

Terry, 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16.  That is, a seizure occurs if, in view of all the

circumstances, a reasonable person would have believed that he

was not free to leave.  Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at ___.  Alternatively, "the appropriate

inquiry is whether a reasonable person would feel free to decline

the officers' requests or otherwise terminate the encounter." 

Bostick, 501 U.S. at 436, 115 L. Ed. 2d at 400, 111 S. Ct. at ___.  In Mendenhall, the Court gave examples of circumstances that might indicate a seizure, including:  (1) the threatening

presence of several officers; (2) displaying a weapon; (3)

physical touching of the defendant; or (4) using language or a

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; see also People v. Murray, 137 Ill. 2d 382, 560 N.E.2d 309 (1990).

	Under other circumstances we would find that a seizure

occurred no later than when the defendant was told to stop and to

remove his hands from his pockets.  At that point the defendant

had begun to back away from the officers, indicating his intent

to leave.  The officers just as clearly indicated their intent

that he remain.  However, because the defendant did not submit to

the officers' commands, but continued to back away, no seizure occurred at that point.  It was not until the officers physically

restrained the defendant that he was seized.  See California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991) (assertion of authority by police does not constitute

seizure unless defendant submits); see also People v. Ramirez, 244 Ill. App. 3d 136, 613 N.E.2d 1116 (1993) (following Hodari D.).  Therefore, we must decide whether the police had valid justification for seizing the defendant at that time.

	"An investigatory stop of a private citizen is allowed only

when the police officer has specific, articulable facts which,

when taken together with rational inferences, create a reasonable

suspicion that the private citizen is involved in criminal

activity."  People v. Lockhart, 311 Ill. App. 3d 358, 361, 724 N.E.2d 540, 542 (2000).  Mere hunches and unparticularized

suspicions are not sufficient.  People v. Moore, 286 Ill. App. 3d 649, 676 N.E.2d 700 (1997).

	The State argues that the following factors established

reasonable suspicion sufficient to warrant a Terry stop:  (1) defendant was in a high crime area at night; (2) defendant began

to look around nervously and back away from the officers; (3)

defendant refused to remove his hands from his pockets; and (4)

defendant attempted to "flee" from the officers.

	The mere fact that a person is in a high crime area is not

sufficient to support a reasonable suspicion that a person is

committing a crime, although it is "among the relevant contextual

considerations in a Terry analysis."  Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d 570, 576, 120 S. Ct. 673, ___

(2000).  Similarly, we do not believe that the lateness of the

hour justifies a Terry stop, although it may be a factor contributing to a reasonable suspicion.  And while nervous

behavior has been recognized as a pertinent factor (Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at ___), it "is not

a characteristic that generally invokes reasonable suspicion"

(People v. Perry, 188 Ill. App. 3d 499, 503, 544 N.E.2d 1015, 1017 (1989); see also People v. Smith, 315 Ill. App. 3d 772, 734 N.E.2d 1039 (2000)).  As for defendant's behavior in backing away

from the officers and refusing to remove his hands from his

pockets, his acts were consistent with his right, in the context

of a consensual police—citizen encounter, to ignore the police requests and go on his way.  Moreover, his exercise of those

rights cannot be used to justify a Terry stop.  See Royer, 460 U.S. at 498, 75 L. Ed. 2d at 236, 103 S. Ct. at ___ (citizen's

refusal to listen or answer questions does not, without more,

furnish grounds for detention).  After all, consensual encounters

do not implicate the fourth amendment only because they are consensual.  To hold that exercising the right to refuse to

answer and going about one's business supplies the basis for

reasonable suspicion creates a "heads I win, tails you lose"

situation for the State, with the fourth amendment as the loser.

	Finally, the State's characterization of defendant's conduct

as "unprovoked attempted flight," and its attempt to rely on

Wardlow, merit little comment.  As we have explained, the defendant's actions were consistent with his right to terminate

the consensual encounter with Officers Gavin and Jose.  The

"headlong flight" which justified a Terry stop of the defendant in Wardlow (528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at ___) bears no resemblance to the instant defendant's conduct.

	Viewed individually then, defendant's actions were not

sufficient to cause a person of reasonable caution to believe

that defendant was engaged in criminal activity.  However, facts

and circumstances which might appear innocent when viewed

independently may provide reasonable suspicion when viewed in

their entirety.  People v. Lockett, 311 Ill. App. 3d 661, 725 N.E.2d 27 (2000).

			"In deciding whether a reasonable

suspicion existed, we must consider the

'"totality of the circumstances—the whole picture"' of each case.  [Citations.]  We

recognize that a reasonable suspicion may

emerge from seemingly innocent, non-criminal

conduct.  [Citation.]  The question for the

court is the degree of suspicion which

attaches to the circumstances surrounding a

defendant's actions.  [Citation.]  The facts

used to support an investigatory detention

are insufficient when they describe 'a very

large category of presumably innocent

travelers, who would be subject to virtually random seizures.'"  People v. Anaya, 279 Ill. App. 3d 940, 945-46, 665 N.E.2d 525, 529

(1996).

	We believe that, considering the totality of the

circumstances as they existed on November 24, 2000, there were

insufficient specific, articulable facts to create a reasonable

suspicion that defendant was committing a crime.  Essentially,

defendant put something in his pocket (drugs, a knife,

cigarettes, keys, gum?) while walking late at night.  He then

stood in front of a known drug house with his hands in his

pockets.  Nothing about this activity suggests criminal conduct. 

Certainly, putting something in one's pocket is not a hallmark of

criminal activity.  See People v. F.J., 315 Ill. App. 3d 1053, 734 N.E.2d 1007 (2000); People v. Anderson, 304 Ill. App. 3d 454, 711 N.E.2d 24 (1999).  Nor did defendant's presence in the

vicinity of a house where drugs had been sold in itself create a

reasonable suspicion.  See Lockhart, 311 Ill. App. 3d 358, 724 N.E.2d 540 (fact that defendant entered and quickly left house

where prior drug arrests had been made did not establish

reasonable suspicion to stop defendant); People v. Harper, 237 Ill. App. 3d 202, 205, 603 N.E.2d 115, 116 (1992) (no reasonable

suspicion where defendant was stopped after exiting "known dope

house").  With respect to defendant's nervous behavior, we

believe it is significant that, according to Officer Gavin's

testimony, defendant did not become nervous until after he was

told to remove his hands from his pockets.  Such an order may have been considered by the defendant as a signal that what had

been a casual inquiry was now the prelude to something more

serious, thereby creating anxiety.  Finally, we do not believe

that defendant's decision to keep his hands in his pockets and

terminate the "consensual encounter" can provide the basis for

reasonable suspicion, for the reasons stated earlier.  We hold,

therefore, that defendant was improperly seized in violation of

the fourth amendment.  The circuit court's ruling denying the

defendant's motion to suppress is accordingly reversed.  In

addition, because the State cannot prevail on remand without the

suppressed evidence, we reverse the defendant's conviction and

vacate his sentence.

	For the reasons stated above, the judgment of the circuit

court is reversed.

	Reversed.

	LYTTON, P.J., and McDADE, J., concur.