The use of Trespass Agreements as a basis for police-citizen encounters has received recent attention and criticism following the decision of the Second Illinois Appellate Court in People v. Beverly.1 The merits of and need for such agreements have been called into question by Bruce Steinberg, the attorney who defended Damien Beverly in that case. According to Steinberg, the police do not need an agreement with an apartment-complex owner in order to enforce State laws on the property.2 On the contrary, Aurora Police Chief William Powell considers the use of a trespass agreement to be an invaluable tool for police officers because it can provide the basis for the discovery of weapons and drugs on persons who are trespassing on the property.3 Reducing crime and the presence of guns, drugs and gangs in the community are goals that can be shared by all. However, it is the methods employed to achieve those goals that have raised concerns. Despite these concerns, trespass agreements are not unique to the City of Aurora, as many local police departments utilize this device, including Addison, Naperville and Lombard. However, it was the viability of using such an agreement to justify a police-citizen encounter by the Aurora Police Department that garnered debate.
II. People v. Beverly – Facts
The Aurora Police Department assigns personnel to work as community policing officers. The duties of this position include the development and maintenance of relationships with apartment building owners in order to cooperatively reduce crime in those locations.4 Such a relationship and trespass agreement existed between the Aurora Police Department and the owner of the Sagecrest apartment complex. The parking lot of the Sagecrest apartment complex was the scene of the contested police encounter in Beverly. In the capacity of agent of the apartment complex, Officer Corrigan and Officer Dorr had occasion to enter the parking lot and observe a vehicle, driven by Beverly and also occupied by his brother, Damore Beverly, parked in a resident parking space in front of the building.5
Officer Corrigan testified at the suppression hearing that he did not see a Sagecrest parking sticker affixed to the vehicle (as was required) nor did he recognize either of the occupants as being residents or persons banned from the property. Knowing this apartment building had a "high level of drug and gang activity" and desiring to determine if a trespass violation was occurring, Officer Corrigan initiated an encounter with Beverly and his brother by parking his marked squad car "directly behind and perpendicular to defendant’s vehicle, such that defendant would have hit the squad car if he had tried to back up."6 Both officers then approached the vehicle and initiated contact with the two occupants, standing next to the driver and passenger doors. While asking Beverly for his identification, a plastic baggy was observed next to Damore, and Beverly attempted to reach for that baggy. Beverly exited the vehicle at Officer Corrigan’s request and was handcuffed, apparently for officer safety, when Corrigan noticed that Officer Dorr had difficulty controlling Damore.7 In response to being handcuffed, Beverly advised Officer Corrigan that he had a handgun on his person. That weapon, a loaded 9-millimeter gun, was seized from Beverly. These events led to the arrest of Beverly, who was charged with aggravated unlawful use of a weapon.8
The trial court granted Beverly’s motion to quash the arrest and suppress the seized firearm because the court found that Beverly was seized without justification when the officers parked their squad car in such a manner as to prevent Beverly from departing in his vehicle.9
III. People v. Beverly – Analysis
The Second District Appellate Court opinion, delivered by Justice Callum, was thorough and well-reasoned in its review of the trial court finding of an unjustified seizure. The court recognized that investigatory vehicle stops are exempted from the general warrant requirement when the stop/seizure is based on "specific, articulable facts that…create reasonable suspicion that the person seized has committed or is about to commit a crime."10 The court went on to analyze if and when a seizure occurred, before it would examine if that seizure was justified by the circumstances. In determining when a seizure occurs, the court initially relied on Florida v. Bostick11 for the proposition that the restraint of liberty by physical force or a showing of authority constitutes a seizure under the Fourth amendment.12 The court noted its decision in People v. Luedemann, that common sense should guide the assessment and determination as to "whether a reasonable person in the defendant’s position would feel free to leave."13
In Luedemann, a police officer observed an occupied, legally parked vehicle in a neighborhood late at night, and guessing that the driver may be a burglar, the officer stopped his squad car in the middle of the road in order to approach the parked vehicle on foot.14 The court in Luedemann, held that the conduct of an officer, demonstrating a sense of urgency and actions not authorized for regular citizens, can be a showing of authority such that a reasonable person would not feel free to leave or otherwise disregard that officer.15
Similarly, the court in Beverly analogized its case to the circumstances of People v. Gherna.16 In Gherna, two bicycle-mounted police officers rode by a truck parked in an apartment parking lot and observed a bottle of beer near an apparently underage female.17 The officers approached the truck to investigate possible underage drinking.18 Upon reaching the vehicle, the officers positioned their bicycles next to the vehicle in such a manner that the court held a reasonable person would feel unable to depart.19 Thus, this police conduct, like that in Luedemann, was deemed to constitute a seizure.20
Comparing the facts in Beverly to both Luedemann and Gherna, the court affirmed the trial court ruling that Beverly was seized when Officer Corrigan parked the squad car in such a manner as to prevent Beverly from leaving in his vehicle.21 The court did not go on to hold that the presence of the officers next to the vehicle doors contributed to the determination that a seizure had occurred, because the court reasoned that merely blocking the car was a sufficient basis for a reasonable person not to feel free to leave.22
The court then looked at whether this seizure was justified under the circumstances presented. In summary, the testimony of the officers was that they did not have reasonable cause to suspect the occupants of a crime, including trespass.23 Further, the officers had not received a complaint pertaining to the vehicle or its occupants, nor did they have knowledge that the individuals were not lawfully present on the property.24 Despite the high crime area in which the apartment building was located, the court found no particularized suspicion of criminal activity involving these individuals.25 Lastly, the court held that the trespass agreement, while authorizing the officers to approach persons on the premises, did not authorize a seizure.26
In determining that the trespass agreement did not authorize a seizure, the court discussed the decision of the Fourth District in People v. Thompson.27 Similar to Beverly, the officers in Thompson had blocked a vehicle’s means of egress from a parking lot, pursuant to an interagency agreement with the Hispanic Housing Authority, in order to determine if the occupants were lawfully on the property.28 The Fourth District held that the "interagency agreement cannot be the basis for forming a reasonable articulable suspicion of criminal activity."29 Relying on the rationale as expressed in Thompson, the Second District in Beverly ruled that "although the officers had reason to want to approach and question defendant, the [trespass] agreement did not justify intrusion upon fourth amendment rights."30
IV. Lessons Learned
The first lesson learned is that a trespass agreement does not provide an officer with a constitutional basis for seizing an individual on a subject property.31 The basic rationale for this rule is that residents, and their guests, have the right to unimpeded movement throughout the common areas of the property.32 The second lesson is that these agreements do provide officers with justification for inquiring of individuals their purpose in being present on the property.33 The application of this ability should be carefully employed to avoid the appearance of bias, discrimination or harassment. However, when applied logically and in good faith it provides additional options when the questioned subject either does not respond or begins to walk away.
In practice, the use of trespass agreements requires greater awareness of the circumstances and how those facts may appear to the court. Although police officers are not required to anticipate the judicial decisions that will follow months or years after an encounter, an awareness of this perception can assist in the successful apprehension and conviction of criminals. For example, parking a squad car behind, but off-set from a vehicle in a subject apartment parking lot would not block that vehicle nor would it be likely to be held to restrain the liberty of the occupants therein. Thus, under the rules of Beverly, Thompson and Bostick, since this approach would not impose a restraint on liberty, no seizure would occur.34 Upon approaching the vehicle, remaining behind the driver’s door and toward the rear of the vehicle (similar to the approach during a traffic stop) would allow the occupant the ability to exit the vehicle if so desired. This manner of contact would also not be likely to be found to be a show of authority or of blocking the occupant within the vehicle.35 As a result of these two simple alterations of conduct, officers can increase the probability of a consensual encounter without sacrificing officer safety.
A critique of this method (of not blocking the vehicle in) is that the driver can simply drive away from the officers, thereby thwarting the attempt to investigate for criminal activity.
There are three primary responses to such criticism. First, if the person leaves, then the intent of the trespass agreement has been served by the removal (albeit voluntary) of a person who may not be authorized to be present on the property. Second, by leaving the property in a vehicle, the driver is subjecting him/herself to the myriad traffic laws of the Illinois Vehicle Code and the included justifications for a traffic stop for legitimate law enforcement purposes.36 Third, a subject who refuses to respond to the officer’s non-threatening, but repeated attempts to determine a valid reason for that person’s presence on the property, and who departs on foot may be subject to a Terry stop to ascertain if that person had been trespassing on the property.37 As the Illinois Supreme Court stated in People v. Thomas, "[t]he facts supporting the officer’s suspicions need not meet probable cause requirements."38 Those facts can "arise when no violation of the law is witnessed; however, a mere hunch is insufficient to justify a Terry stop."39
As an example of the third response: in People v. Smith, two Joliet Police Officers observed a man walking through an apartment complex which had entered into a trespass agreement with the Joliet Police Department.40 The officers wanted to determine if the subject was lawfully on the property.41 By the time the officers were able to approach the man, he was no longer on the apartment property.42 Despite no longer being present on the apartment grounds, the Third District Appellate Court found that this initial police-citizen encounter was consensual.43 During this consensual encounter, the officers did not ask if the subject had a pass to be on the apartment complex property.44 Rather, suspecting that this person was concealing drugs in his hand, the officers physically restrained and then arrested him for narcotics possession.45 The court in Smith held this seizure not to be justified based on the consensual nature of the encounter, and the lack of reasonable and particularized suspicion of drug activity.46 Despite the previous mention that the officers did not inquire about the pass, the court did not address the validity of an investigatory stop if the officers had brought up that issue and the person did not have a pass. The officers’ oversight regarding the pass may very well have shifted this encounter and arrest from previously justified investigatory stop to unjustified seizure. Applying this scenario to the future, officers can avoid an adverse ruling by following through with their initial purpose for the encounter – questioning about the trespass agreement.
IV. Looking Forward
Practical knowledge for police officers and attorneys can be gained from the court’s analysis in Beverly. In learning from this situation, professional law enforcement officers can hone their skills to more effectively respond to crime and apprehend criminals. In turn, state’s attorneys can more effectively advise the police as to constitutional use of the trespass agreement. Similarly, private attorneys will be able to inform their clients as to their rights, and to represent those clients in the event of such a police-citizen encounter. Are trespass agreements constitutional? It is apparent from Beverly that they are, but it is the application thereof that can be problematic. Although trespass agreements do not provide an automatic basis for seizing people, they do remain the valuable tool that Aurora Police Chief William Powell described. The decision in Beverly indicates that greater finesse is needed in order to wield this tool within constitutional boundaries.
1 People v. Beverly, No. 04-CF-1079, 2006 WL 771941, 2006 Ill. App. LEXIS 229 (Ill. App. 2d Dist. March 23, 2006). This decision has not been released for publication.
2 Matt Hanley, Trespass agreements: Vital police tool or illegal stop? Beacon News April 17, 2006.
3 Hanley, supra note 2.
4 Beverly, 2006 WL 771941, *1, 2006 Ill. App. LEXIS 229, *4 (Ill. App. 2d Dist. March 23, 2006).
5 Id. at *1, *1-5.
6 Id. at *2, *6.
7 Id. at *2, *6-7.
8 Id. at *1, *1; 720 Ill. Comp. Stat. Ann. 5/24-1.6(a)(1) (West 2004).
9 Id. at *3, *9.
10 Beverly, 2006 WL 771941, *5, 2006 Ill. App. LEXIS 229, *15 (Ill. App. 2d Dist. March 23, 2006) citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880 (1968).
11 Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1991).
12 Beverly, 2006 WL 771941, *6, 2006 Ill. App. LEXIS 229, *18 (Ill. App. 2d Dist. March 23, 2006).
13 Id. at *6, *18-19, citing People v. Luedemann, 357 Ill. App. 3d 411, 421, 828 N.E.2d 355, 365 (2005).
14 People v. Luedemann, 357 Ill. App. 3d 411, 414, 828 N.E.2d 359, 365 (2005).
15 Id. at 421, 365.
16 People v. Gherna, 203 Ill. 2d 165, 784 N.E.2d 799 (2003).
17 Id. at 168, 802.
19 Id. at 180, 808.
20 Id. at 185, 811. The court in Gherna held that this initial seizure was justified by the reasonable suspicion of underage drinking. Id. at 181, 808. However, when the officer determined that no such conduct was occurring, the basis for continued detention was not present. Id. at 185, 811. Therefore, the subsequent encounter yielding evidence of narcotics possession was obtained after the validity of the detention had ended, and suppression of the evidence was appropriate. Id. at 187, 812.
21 Beverly, 2006 WL 771941, *7, 2006 Ill. App. LEXIS 229, *19 (Ill. App. 2d Dist. March 23, 2006).
23 Id. at *9, *25.
24 Id. at *9, *24.
25 Id. at *9, *25.
26 Id. at *10, *27.
27 People v. Thompson, 337 Ill. App. 3d 849, 787 N.E.2d 858 (2003).
28 Id. at 853, 862.
29 Id. at 856, 858.
30 Beverly, 2006 WL 771941, *10, 2006 Ill. App. LEXIS 229, *28 (Ill. App. 2d Dist. March 23, 2006).
31 See Beverly, 2006 WL 771941, 2006 Ill. App. LEXIS 229 (Ill. App. 2d Dist. March 23, 2006); see also People v. Thompson, 337 Ill. App. 3d 849, 787 N.E.2d 858 (2003).
32 See Thompson, 337 Ill. App. 3d at 853, 787 N.E.2d at 862 (2003).
33 Beverly, 2006 WL 771941, *10, 2006 Ill. App. LEXIS 229, *27 (Ill. App. 2d Dist. March 23, 2006).
34 Beverly, 2006 WL 771941, 2006 Ill. App. LEXIS 229 (Ill. App. 2d Dist. March 23, 2006); People v. Thompson, 337 Ill. App. 3d 849, 787 N.E.2d 858 (2003); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382 (1991).
35 See Luedemann, 357 Ill. App. 3d 411, 828 N.E.2d 359 (2005); see also Gherna, 203 Ill. 2d 165, 784 N.E.2d 799 (2003).
36 625 Ill. Comp. Stat. 5/1-100, et Seq.
37 See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968); see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676 (2000) (recognizing that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Further, that "[h]eadlong flight-wherever it occurs-is the consummate act of evasion." ).
38 People v. Thomas, 198 Ill. 2d 103, 110, 759 N.E.2d 899, 903 (2001).
39 Beverly, 2006 WL 771941, *5, 2006 Ill. App. LEXIS 229, *15 (Ill. App. 2d Dist. March 23, 2006).
40 People v. Smith, 331 Ill. App. 3d 1049, 1051, 780 N.E.2d 707, 709 (3d Dist. 2002).
43 Id. at 1052, 711.
44 Id. at 1051, 710.
45 Id. at 1053, 711.
46 Smith, 331 Ill. App. 3d at 1055-56, 780 N.E.2d at 712-13 (3d Dist. 2002).
Kevin D. McHugh is a second-year law student at Northern Illinois University and a Lead Articles Editor of the law review. He is a former police officer of the Kendall County Sheriff Department.