{"id":6471,"date":"2012-05-01T09:52:07","date_gmt":"2011-12-28T00:40:02","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-12-27T16:45:35","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6471","title":{"rendered":"IL: Ordered out of car with officer’s hand on gun and handcuffed without a word being said was an arrest"},"content":{"rendered":"

Defendant was arrested when he was searched. The officer approached him after a traffic stop at night with hand on gun, there were six officers there, and defendant was asked nothing but told to get out of the car and he was handcuffed. People v. Surles<\/a>, 963 N.E.2d 957, 2011 IL App (1st) 100068 (2011)*:<\/p>\n

[P26] The bulk of the evidence, however, weighs in favor of finding that defendant was under arrest before he was searched. Specifically, Officer McGrew testified that he approached defendant’s side of the vehicle, either with his firearm drawn or with his hand on his firearm. He also stated that there were six officers, from three separate squad cars, present at the time. In addition, defendant was not asked any questions by Officer McGrew, but instead was given instructions to step out of the vehicle and immediately handcuffed behind his back. Defendant was not told that he could leave or refuse to cooperate, nor was he released after he was handcuffed. Instead, he was handed from Officer McGrew to Officer Solana, who then searched defendant’s person. Thus, defendant’s freedom of movement was restricted, both by physical restraints and the officers’ show of authority.<\/p>\n

[P27] We find that Officer McGrew approaching defendant with his weapon drawn or his hand on his weapon made the mood of the encounter more like an arrest. Further, the fact that defendant was ordered out of the vehicle while the officer had his hand on his firearm, and without any conversation, also would make a reasonable person feel restrained. Moreover, the fact that defendant was outnumbered by police officers, and the other occupants were already restrained, would decrease a reasonable person’s feeling of freedom. After all of these things occurred, Officer McGrew placed defendant in handcuffs and kept hold of him until he was passed to Officer Solana. Thus, from the time defendant was placed in handcuffs, he was not free to move on his own. Given the show of force and authority by the officers and defendant’s restraint, we conclude that defendant was arrested from the time he was handcuffed by Officer McGrew.<\/p><\/blockquote>\n

[Note: Perhaps what is more remarkable here was the state argument that this was not an arrest: six officers, ordered out of car with hand on gun or gun drawn, immediately handcuffed. What more does the state require?]<\/p>\n","protected":false},"excerpt":{"rendered":"

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