IL: Defendant pulling into driveway during execution of warrant could not be searched without separate cause

Officers were executing a search warrant when a car pulled into the driveway. Defendant was surrounded by police, including one with an M16 over the shoulder, and he was ordered to show his hands. He was seized at that moment and not free to leave. His showing up at the scene of the search was not inherently suspicious, as were none of his other actions. Search suppressed. People v. Tate, 2006 Ill. App. LEXIS 734 (2d Dist. August 10, 2006):

In this case, the officers testified that they were on either side of the vehicle, it was dark, and they were shining flashlights into the vehicle. Quadraro, who was on the driver side, used “loud, repetitive commands” for defendant to show his hands. Coppotelli, who had walked up to the passenger side with a third officer, opened the passenger-side door of the car and also yelled for defendant to show his hands. Furthermore, Coppotelli was carrying an M16 rifle. The number of police officers surrounding the vehicle, the officers’ tone of voice, and the presence of a weapon lead us to believe that a reasonable person would not have felt free to terminate the encounter.

Based upon this evidence, defendant was seized when his vehicle was surrounded and he was “commanded” to show his hands. To decide otherwise would mean that the encounter was initially consensual and defendant could have refused to show his hands and terminated the encounter. That was obviously not the case here, as defendant was pulled from the car when he failed to show his hands. See People v. Smith, 331 Ill. App. 3d 1049, 1055, 780 N.E.2d 707, 269 Ill. Dec. 235 (2002) (noting that a refusal to comply with an officer’s request during a consensual encounter cannot establish the basis for a seizure). We also note that Quadraro testified that even if defendant had shown his hands he would been detained. We agree with defendant that his failure to display his hands cannot be a factor in determining whether the officers had a reasonable suspicion, because it took place after his seizure.