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

The 2d District District Appellate Court, in a search & seizure case, while addressing an issue of voluntarism of a consent to search, appears to have opened the door to a wide- sweeping rule justifying “pat-down” searches. The dissent opinion in this case is a “must read” to ensure a thorough understanding of how far “reasonable suspicion” and “exigent circumstances” can be stretched to justify detention of an individual not arrested.
The issue is referred to as one of first impression in Illinois—that is, whether the need to transport a person in a police vehicle, who is not under arrest, gives rise to an exigency that justifies a pat-down search for weapons.

See: People v. Travis Smith, 346 Ill. App. 3d 146, 803 N.E. 2d 1074

Summary of Facts: The defendant was one of three passengers in a vehicle stopped for speeding and failure to signal lane changes. The driver failed a field sobriety test (PBT) as did the defendant and one other passenger. The driver was placed under arrest for DUI, and the defendant and the other passenger who failed the PBT were deemed by the officer to be too intoxicated to drive the vehicle. The 3rd passenger had no valid drivers license. Also, because of the existing statutory provision in the vehicle code relating to unsafe passage by a pedestrian on the highway, and the extent of the parties’ intoxication, as viewed by the officer and his back-up, the passengers were not allowed to walk to the nearest exit. Instead, they were given the option to call for assistance, but were unable to do so, and, alternatively, to be driven off the highway in squad cars.
The defendant submitted to a pat-down search after being told by a back-up officer that it was the Department’s policy to have all passengers frisked for weapons before being allowed to ride in a squad car. While patting down the defendant the officer felt a bulge in his left sleeve, and when he asked the defendant what it was the defendant admitted it was a gun. The officer recovered a loaded .25-caliber semiautomatic handgun and immediately placed the defendant under arrest.

Summary of Court’s Findings: On motion to quash the arrest and suppress the seized handgun the defendant contended he gave no valid consent to the search and that it was given pursuant to a show of authority. The trial judge, while holding the consent was voluntary, granted the motion and held that the consent was tainted by the illegal detention that resulted from the officers’ comments and actions.

The Appellate Court reversed and remanded. Justice Kapala, with Justice O’Malley concurring, writing the majority opinion, found that the Court could look to precedent in other jurisdictions, i.e., California, Michigan, Rhode Island, where it has been held that the need to transport a person in a police vehicle is an exigency that justifies a pat-down search for weapons. Looking further beyond Illinois borders, the majority adopted the analysis in a concurring opinion in In re Kelsey C.R., 243 Wis. 2d 422, 458, where Justice Sykes, joined by Prosser, J., stated:
“…[W]hen an officer is called upon in the course of his duties to transport an individual in a squad car, he necessarily exposes himself to greater risks than the ordinary field investigation. He will have his hands on the wheel, his eyes on the road, and his back to his passenger, and, as such, is extremely vulnerable to assault, much more so than in an ordinary field investigation. Under these circumstances, I have no difficulty concluding that a weapons frisk, even absent reasonable suspicion that the passenger-to-be is armed and dangerous, is perfectly reasonable under the Fourth Amendment.
   This is not to say that I would find every search-incident-to-squad car-ride reasonable. There must be an objective reasonable need or basis for providing the ride in the first place before the prospective passenger can reasonably be subjected to a weapons frisk. It cannot be pretextual. An officer cannot convert a routine traffic stop or field investigation into an opportunity to search by conjuring up a reason to provide a ride.”
The majority in Smith concluded that the detention was not illegal and that the officer faced an emergency situation [ the passengers could not drive the vehicle, and would violate the Vehicle Code provision prohibiting walking off the highway in addition to posing a danger to their own safety] thereby justifying police action that would otherwise be prohibited under the 4th Amendment. Having adopted the Wisconsin Supreme Court’s concurring opinion analysis, Justice Kapala stated in pertinent part:
“…[W]e hold that in this case a duty to transport defendant arose and that the need to transport defendant in a police vehicle was an exigent circumstance justifying the pat-down search of defendant’s outer clothing for weapons.”
Summary of Dissent: In a separate opinion Justice Byrne agreed with the trial judge’s holding that the detention of the defendant was illegal and tainted his consent to the pat-down search. He agreed with the trial court’s determination that the defendant would have been arrested if he attempted to drive or walk away, and that the officer had incorrectly implied that the defendant was not free to leave the scene on foot. On this issue Justice Byrne said (Highlights with some omissions not noted in the quoted text):
“ There was no affirmative evidence of defendant’s appearance or demeanor that would suggest that he could not walk safely. The trial Court held that there was inadequate evidence of defendant’s intoxication to justify detention, and I conclude that the Court’s factual finding is not against the manifest weight of the evidence.
   After holding that the encounter with the passengers was a ‘community caretaking situation’ in which the defendant was not seized, the majority incongruously concludes that the officers had a reasonable suspicion that the defendant was about to violate section 11-1010 of the Vehicle Code and that this suspicion justified defendant’s seizure. The analysis on this point is dispositive, but the majority nevertheless states in dicta that under the facts of this case there was an emergency situation that justified a seizure of defendant’s person even without a reasonable suspicion that criminal activity was about to be committed. … I agree with the majority that there is no Illinois authority discussing whether such an exception exists, and I believe that we should not create one here sua sponte, where we lack the parties’ argument on the extraneous issue.”
In conclusion Justice Byrne said:
“The majority has unnecessarily and substantially curtailed the fourth amendment protections of motorists who become stranded on this State’s roadways. The sweeping new rules announced herein authorize the government to search pedestrians under the guize of providing a “courtesy ride” during a community caretaking encounter. This opinion could be construed as condoning the seizure and search of any person whose status as a stranded pedestrian, in the officer’s opinion, creates a risk of harm to the pedestrian or other motorists. I conclude that the motion to suppress was correctly granted in this case and, for the preceding reasons, I respectfully dissent.”
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NOTE: The Illinois 3rd District Court of Appeals, has taken up the "emergency situation" banner raised by the 2nd District Court of Appeals in Smith. After reading the full text of what the 3rd District panel has to say, some may conclude that the Court’s assertion is merely simplex dictum. Nevertheless, the citing of Smith should raise a red flag, even though the so-called "emergency" exception was raised in dicta in Smith, which, fortunately, was appealed to the Illinois Supreme Court. Smith was argued before the State Supreme Court on 1/13/05 , and the decision will be reported as soon as released.
In a non-firearm-related DUI case (decided on 4 May 2004) that was principally resolved on issues regarding the defendant’s intoxication, the 3rd District Illinois Appellate Court, in addressing the issue of propriety of the initial police/defendant encounter in light of 4th Amendment safeguards, found that the officer’s purpose in approaching the defendant’s vehicle ( pulled over on the side of the roadway) was to check on the welfare of the driver rather than to conduct an investigation. The Court cited People v. Smith (supra) for the proposition that there is an emergency exception to the requirement that a seizure be supported by either probable cause to arrest or reasonable suspicion of criminal activity.
While facts supporting an "emergency situation" were lacking in this case, and the Court determined that the defendant was "technically detained," the 2nd District Appellate Court’s ruling regarding the seizure in Smith was significant enough for this panel to rely upon it in concluding that "[s]uch assistance is designed to ensure public safety, and we do not believe that any concomitant technical detention is unreasonable." See People v. Laake, 348 Ill. App. 3d 346, 809 N.E. 2d 769,772.

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