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People v. Luedemann5/4/2005
t. Such policy decisions were made by the founders long ago, when they crafted the fourth amendment, and the Supreme Court, when it applied that amendment in cases like Mendenhall.
Next, we must determine whether the facts available to Officer Pate at the time of the seizure justified it. The State argues that the officer had reasonable and articulable suspicion that defendant was involved in a crime because (1) the street on which defendant was parked was the target of some burglaries; (2) defendant was seated in his parked car at 2:40 a.m.; (3) the officer observed furtive movements; and (4) defendant slouched down in his seat as the officer drove past him. We cannot conclude that these facts amounted to reasonable and articulable suspicion of criminal activity.
First, the fact that defendant was seen in a neighborhood where some homes and vehicles were burglarized did not create a reasonable belief that defendant was involved in a crime. See Croft, 346 Ill. App. 3d at 675-76. Although Officer Pate was aware of the burglaries, he did not have a description of the burglar or the vehicle the offender may have used. Also damaging to the State's position is the fact that the neighborhood was not a "high crime area," which, even in itself, does not justify stopping an individual. See People v. Parra, 352 Ill. App. 3d 584, 588 (2004).
Second, the time of day did not give Officer Pate a basis to stop defendant. Despite the early hour, Officer Pate only observed defendant smoking a cigarette in his legally parked car. Although no one else was sitting in a car on the street at 2:40 a.m. on that Saturday, there were numerous other vehicles parked along that street. When Officer Pate saw defendant, he did not know whether defendant was a resident of one of the homes located on that street, whether he was parked in front of the house waiting for a friend to exit, or whether he was waiting for a friend to return home, which defendant claimed he was doing. Given these facts, Officer Pate had no reason to suspect defendant of criminal activity.
Third, we find that defendant's act of reaching towards the floorboard by the passenger seat did not give Officer Pate a basis to stop defendant. In People v. Mills, 115 Ill. App. 3d 809, 810-11 (1983), the arresting officer saw the defendant, who was parked in a municipal parking lot, quickly move towards the floorboard of his car. This court found this furtive movement insufficient to create a reasonable belief that criminal activity was afoot because such behavior could be nothing more than an innocent act. Mills, 115 Ill. App. 3d at 814-15. We see no basis to depart from the reasoning in Mills.
Fourth, the fact that defendant slouched down in his seat as Officer Pate drove past him added nothing to create a reasonable and articulable suspicion of criminal activity. In People v. Gottenborg, 41 Ill. App. 3d 8, 10 (1976), the officer saw the defendant "slinking down" in the driver's seat of his car. The appellate court determined that the defendant's act did not give the officer a basis to search the defendant's vehicle following his arrest because such behavior "could just as easily be consistent with innocent actions, when the conduct of young men during a warm summer evening is considered." Gottenborg, 41 Ill. App. 3d at 10. Although, as we noted in Mills, probable cause to arrest is different from reasonable and articulable suspicion to stop, the "slinking down" still could have been an innocent act that did not justify a stop. Mills, 115 Ill. App. 3d at 815.
Lastly, even when we consider all of these facts collectively, we cannot conclude that Officer Pate possessed a reasonable and articulable suspicion that
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