State Search-Andseizure Law gets a Makeover

Lawyers are taught to avoid the use of boiler-plate language. Boiler plate can be a crutch that encourages laziness and discourages clear thinking.

Recently, the 2d District Appellate Court examined some boiler plate that Illinois appellate courts have regularly used in search and seizure cases for the last 15 years. By casting a clear eye on some tired language, the 2d District concluded that the boiler plate was more than merely inartful -- it was just plain wrong.

First, some background.

The U.S. Supreme Court has long held that not every contact between police and citizens implicates the Fourth Amendment. Florida v. Bostick, 501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491 (1983).The court has roughly divided these contacts into three categories. First, a full seizure -- an arrest -- must be supported by probable cause. Second, a limited seizure -- a Terry stop -- merely requires reasonable articulable suspicion. Terry v. Ohio, 392 U.S. 1 (1968). But, third, the Fourth Amendment in no way limits the ability of a police officer to approach anyone on the street for any reason and ask questions. As long as the person is free to decline the officer's request and walk away, there is no "seizure" and thus the Fourth Amendment is not implicated. Royer, at 497-498.

In creating this tripartite matrix, however, the Supreme Court was not trying to cover every possible police/citizen encounter. The court was merely trying to illustrate that not every police/citizen encounter was necessarily a seizure.

So could there be a seizure -- other than an arrest or a Terry stop -- that could be made by an officer without probable cause or reasonable suspicion? Of course.

Consider, for example, the facts of State v Chisholm, 39 Wn.App. 864 (1985) from the Washington Court of Appeals. There a police officer in an unmarked car observed a pickup truck being driven with a hat resting on top of it. He radioed an officer in a marked car to stop the driver in order to prevent him from losing the hat. During the stop, the officer observed an open can of beer between the driver and the passenger. He arrested them and subsequently found marijuana on Chisholm, the passenger.

When the officer stopped the car, did he seize Chisholm without either probable cause or reasonable suspicion of a crime? Certainly. But the court found the officer's purpose in helping the driver to be entirely benign and unrelated to a criminal investigation, thus obviating the need for either probable cause or reasonable suspicion. The court found that the seizure was thus justified under the rubric of "community caretaking." The U.S. Supreme Court had previously used this rationale to approve of the police inventory of a car impounded following an accident. Cady v. Dombrowski, 413 U.S. 433 (1973). "Community caretaking" allows for seizures to be made without any probable cause or reasonable suspicion.

Thus, to be complete, there are at least four categories of police/citizen interaction: 1) arrests based on probable cause; 2) Terry stops based on reasonable suspicion; 3) questioning where a citizen is free to leave, thus not constituting a seizure; and 4) seizures justified on "community caretaking" reasons and therefore not requiring either probable cause or reasonable suspicion.

Since 1990, however, the Illinois Supreme Court has regularly noted that police/citizen encounters can be divided into not four, but merely three tiers. The first two are arrests and Terry stops. But note how the Illinois Supreme Court -- as recently as last March -- describes the third tier: "[T]he third involves what is sometimes referred to as 'community caretaking' ... which need not be supported by probable cause or reasonable suspicion. In essence 'community caretaking' is a label used to describe consensual police-citizen encounters that typically involve the safety of the public." People v. Smith, 214 Ill.2d 338, 352 (2005), quoting People v. Murray, 137 Ill.2d 382, 387- 88 (1990), and People v. Gonzalez, 204 Ill.2d 220, 224 (2003) (emphasis added). This "three tier" formulation has appeared in almost two dozen Illinois cases over the past 15 years.

When you look at the four actual categories of police/citizen interaction listed above, the Illinois Supreme Court's mistake is obvious: it has conflated the third and fourth categories. True, police questioning that the citizen has consented to is not a seizure. And it is also true that police are allowed to engage in interactions with citizens that are justified by the "community caretaking" exception. But there is nothing necessarily consensual about a "community caretaking" action; when Chisholm was stopped by the police in the Washington case described above, no one pretended that a "seizure" did not occur. It is just that the benign reason for the police seizure eliminated the need for a showing of either probable cause or reasonable suspicion. Thus, this "third tier" formulation that has been repeated in dozens of Illinois cases is -- in a word -- wrong.

We should thank the 2d District Appellate Court for finally telling the emperor to throw on some clothes. As Justice R. Peter Grometer expressed it in a recent opinion: "To call an encounter consensual because an officer is acting as a community caretaker would allow an officer to force a 'consensual' encounter upon a person who desires no contact with the police under any circumstances. If the community caretaker exception is to justify a stop, it must be because the stop is reasonable. Allowing the doctrine to magically transform what is in fact a nonconsensualencounter into a consensual one would be to perpetuate a ridiculous legal fiction." People v. Luedemann, 828 N.E.2d 355, 362 (2d Dist. 2005).

Two weeks later, Grometer returned to this theme in People v. Mitchell, 2005 Ill.App. LEXIS 497 (2d Dist., decided May 20, 2005). He chided the state for confusing "encounters justified by the community caretaking exception with consensual encounters. This is not at all surprising, since the same confusion appears in numerous Illinois cases. [Cites omitted]. This confusion is unfortunate.... [Community caretaking] has nothing to do with consensual encounters; for, by their very nature, consensual encounters need no justification. Treating [community caretaking] as synonymous with consensual encounters deprives the doctrine of any analytical content." At *7.

Finally, Justice Jack O'Malley recently wrote a very thorough special concurrence explaining why seizures and police actions based upon community caretaking are not mutually exclusive categories. People v. Cordero, 830 N.E.2d 830 (2d Dist. 2005).

This trilogy of 2d District cases eschews boiler plate and replaces it with clear thinking. These decisions constitute a major advance in Illinois search and seizure law.