Updated: 01-07-16
Firearm Laws
 
Search & Seizure
 

People v. Starbuck, 358 Ill App. 3d 234 (3rd Dist. 2005)

In a recent firearm decision, the appellate court for the third district reversed a trial court’s granting of a motion to suppress where a handgun was seized from the defendant’s truck by police responding to a call regarding violation of an order of protection.
Of interest in this case is that one Justice, in a concurring opinion not concurring entirely with the analysis of the majority, asserts a broad interpretation of two recent U.S. Supreme Court decisions, and states that People v. Gonzalez 204 Ill. 2d 220, a leading Illinois Supreme Court case, “is no longer good law.” Also, that the U.S. Supreme Court “has made it abundantly clear that it has rejected the notion that questioning, including requests to search, must be related to the initial purpose for the police contact.” Justice Schmidt, specially concurring, cites Illinois v. Caballes, 125 S. Ct. 834 (2005) and Meuhler v. Mena, 125 S. Ct. 1465 (2005) as the authority for his opinion.
Those viewers interested in tracing the disintegration of our 2d and 4th Amendment rights--especially the many intrusions connected with search and seizure of firearms--are urged to read both Caballes and Mena to see if they are authority for what the Justice claims here. While Mena may authorize an otherwise “unjustified” search conducted with the defendant’s permission, it does not appear to overrule People v. Gonzalez, and neither does the Caballes decision. For a different take on these issues by the 2d District Appellate Court, see two recently reported cases at “Search & Seizure,” People v. Hampton, No. 2-03-1036 and People v. Mathews, No. 3-04-0293.
Summary of Facts: Complainant, who had an order of protection against her husband, told an officer that her husband was on his way home from Mississippi to take the children away from her. Also, that he always carried a gun under the front seat of his pick-up truck. Later that same day, she called 911 to inform the police that her husband had arrived and was on the premises.
When an officer approached the defendant, he asked to speak with him and walked him to his squad car while showing and explaining to defendant the order of protection. Although defendant was then free to leave, the officer asked for permission to search him, and testified that the defendant agreed to a pat-down; that defendant also agreed to a search of his truck after admitting that he had a gun under the driver’s seat. By then other officers had arrived on the scene, and a search of the truck turned up the gun and what appeared to be drug paraphernalia. Defendant denied giving permissions to a search of his person or the truck.
The Trial Court found the officers’ testimony credible, but held that the search of defendant’s truck was not reasonably related to the initial purpose of the call, citing People v. Gonzalez, 204 Ill., 2d 425. The defense had argued that under Gonzalez, even if the defendant had consented to the search, the evidence must be suppressed as fruit of the poisonous tree because the officer’s questions impermissibly prolonged his detention.
The majority here stated that while Gonzalez is applicable to traffic stops, the traditional Terry analysis applies to the facts of this case. [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868]. The following are highlights of the Court’s findings (with some. omissions not noted in the quoted text):
“In this case the State argues that the trial court erred in applying the Gonzalez factors to the officer’s investigatory questions. Instead, the State maintains that the officer’s conduct should have been analyzed under a traditional Terry analysis.
“ . . . The Terry court noted the great need for law enforcement officers to protect themselves from violence in a situation where they lacked probable cause for an arrest, but acknowledged a private individual’s rights under the fourth amendment. The court then determined that an officer may conduct a limited search for weapons once he reasonably concludes that the person who he legitimately stopped poses a threat to his safety or the safety of others.
“ . . . To justify a search under the traditional Terry analysis, the officer need not be absolutely certain that the individual is armed. The issue is whether, given the circumstances, a reasonable prudent person would be warranted in the belief that his safety or that of another was in danger. People v Sorenson, 196 Ill. 2d 425, 752 N. E. 2d 1078. Since the purpose of the search is to protect the officer and others, the search must be limited in scope to a search designed to discover guns, knives, clubs or other weapons that can be used to assault an individual [Gonzalez, supra]. The search may, however, extend beyond the defendant’s person to the area within his immediate control from which he might gain access to a weapon. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469.
“ . . . Here the officer was justified in asking the defendant if he could search his vehicle for the protection of the officer and others at the scene. Klausner [the officer] testified that he asked permission to search defendant’s truck for safety purposes. The trial court found the officer’s testimony to be credible, and the record does not refute that finding.
“ . . . In addition, the search was sufficiently limited in scope to survive a fourth amendment challenge. It is permissible for an officer making a protective search under Terry to search the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, so long as the officer possesses a reasonable belief, based on specific, articulable facts, that the suspect is dangerous and may gain immediate control of the weapon. See Long, 463 U.S. 1032, 103 S. Ct. 3469.
“ . . . The judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings.”





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