People v. Brodack
State: Illinois
Court: 2nd District Appellate
Docket No: 2-97-0291
Case Date: 04/24/1998
April 24, 1998
No. 2--97--0291
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) No. 96--DT--3387
)
v. )
) Honorable
KENNETH L. BRODACK, ) E. Thomas Lang and
) Donald H. Geiger,
Defendant-Appellant. ) Judges, Presiding.
_________________________________________________________________
JUSTICE THOMAS delivered the opinion of the court:
The defendant, Kenneth L. Brodack, was charged with driving
under the influence of alcohol (DUI) (625 ILCS 5/11 -501(a)(2)
(West 1996)). The defendant s driving privileges were statutorily
summarily suspended for two years effective September 8, 1996,
after he failed to submit to chemical testing (625 ILCS 5/11- 501.1
(West 1996)). The defendant filed a motion to suppress evidence
and a petition to rescind the summary suspension of his license.
The defendant was subsequently convicted of driving under the
influence of alcohol. His motion to suppress evidence and his
petition to rescind the statutory summary suspension of his
driver s license were denied. The defendant appeals.
Village of Round Lake Beach police officer Dave Dowdle
testified that on July 24, 1996, at 7:38 p.m., he was on routine
patrol in a marked squad car when he received a radio dispatch that
a citizen had reported on his cell phone that there was a brown
Cadillac heading south on Route 83 from the Lake Villa area that
was all over the road. The dispatch also communicated a partial
license plate for the vehicle. About 7:40 p.m. that same evening,
Officer Dowdle observed a brown Cadillac driven by the defendant
stopped in the eastbound lane at the intersection of Route 83 and
Rollins Road. The vehicle s license plate number matched the
partial license plate number given by the radio communication.
According to Officer Rollins, he eventually came up behind the
defendant s vehicle. When the light turned green, the officer
followed the defendant for 400 to 500 feet. At that point the
officer activated his mars lights and siren, but the defendant did
not pull to the right. After traveling about 600 feet farther, the
defendant pulled into a left turn lane. He then turned left into
a Jewel parking lot. As he did so, an oncoming vehicle was forced
to brake abruptly to avoid striking the defendant s vehicle. The
officer denied that he had motioned to the defendant to turn left.
Officer Dowdle then followed the defendant s vehicle for another
100 yards into the parking lot before the defendant eventually
stopped.
Officer Dowdle further testified that once the defendant s
vehicle was stopped he observed the defendant exit the car and
almost fall over. The defendant bumped up against the car and used
it for support. The officer smelled a strong odor of alcohol on
the defendant s breath. Dowdle noted that the defendant failed all
three field sobriety tests that were administered.
The defendant testified that he did not know the officer was
attempting to pull him over until he was in the left turn lane
waiting to turn. He claimed that the officer motioned for him to
turn. He also noted that vehicles in the area were stopping and
that he made his left turn after an oncoming vehicle had stopped.
The defendant admitted that he had been drinking beer at home prior
to being stopped.
On appeal, the defendant first argues that the trial court
erred in denying his motion to suppress evidence and his petition
to rescind the statutory summary suspension of his driving
privileges. He maintains that Officer Dowdle lacked probable cause
to effect a traffic stop.
We initially note that the correct standard to be applied in
ascertaining whether an investigative stop is justified is not
probable cause to arrest or search but, rather, the less exacting
standard of whether the officer has an articulable suspicion that
the vehicle or an occupant is subject to seizure for violation of
a law. Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660,
673, 99 S. Ct. 1391, 1401 (1979); People v. Gerwick, 235 Ill. App.
3d 691, 695 (1992); People v. Faletti, 215 Ill. App. 3d 61, 63
(1991). An officer s decision to make a valid investigatory stop
must be based on specific and articulable facts which, when
combined with rational inferences from those facts, reasonably
warrant an investigative intrusion; a mere hunch is insufficient.
City of Lake Forest v. Dugan, 206 Ill. App. 3d 552, 555 (1990). An
observation of erratic driving is sufficient to justify a traffic
stop. People v. Diaz, 247 Ill. App. 3d 625, 627 (1993). While
reasonable grounds for an investigative stop may be based on an
informant s tip, some indicia of reliability must be present to
justify a stop. Diaz, 247 Ill. App. 3d at 627; Dugan, 206 Ill.
App. 3d at 555; Village of Gurnee v. Gross, 174 Ill. App. 3d 66,
69-70 (1988). However, the officer's own observations may
corroborate the tip or may provide an independent basis for the
stop. Diaz, 247 Ill. App. 3d at 627.
A summary suspension rescission hearing is a civil proceeding
in which the motorist bears the burden of proof to establish a
prima facie case for rescission. People v. Orth, 124 Ill. 2d 326,
337-38 (1988). The trial court s determination in a rescission
proceeding will be overturned only if the finding is against the
manifest weight of the evidence. Orth, 124 Ill. 2d at 341.
Furthermore, a trial court s determination regarding a motion to
suppress will not be overturned unless it is determined to be
manifestly erroneous. Faletti, 215 Ill. App. 3d at 64. This court
will not disturb the trial court s determinations regarding the
credibility of the witnesses or the weight to be given their
testimony. People v. Strickland, 154 Ill. 2d 489, 521 (1992).
The present issue is controlled by Gross. There, the
arresting officer received a radio dispatch stating that there had
been a reckless driving complaint involving a blue Camaro. The
complainant also gave the license plate number of the vehicle and
the block where the reckless driving occurred. Gross, 174 Ill.
App. 3d at 67. The court held that the officer s observation of
the defendant s car, which matched the description, license plate
number, and general location of the car in corroboration of the
complaint, coupled with the defendant s lack of response to the
officer s request to pull his car over, were sufficient to permit
an investigatory stop. Gross, 174 Ill. App. 3d at 70. Similarly,
in the instant case, Officer Dowdle observed the defendant s car,
which matched the description, partial license number, and general
location of the car in corroboration of the complaint. While this
standing alone would be insufficient corroboration, we find that it
was sufficient when coupled with the defendant s failure to pull to
the right after Officer Dowdle activated his lights and siren. The
defendant claimed that he did not notice the officer s lights and
siren until after he had traveled six hundred feet. However, the
defendant s conduct in not noticing a squad car with flashing
lights and siren would support the inference that he was driving
under the influence of alcohol.
The defendant claims that he was stopped the moment the
officer activated his lights. However, we disagree with that
conclusion. In order to determine whether a particular encounter
constitutes a seizure or a stop for fourth amendment purposes, a
court must consider all the surrounding circumstances of the
encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to
decline the officer s requests or otherwise terminate the
encounter. Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d
389, 402, 111 S. Ct. 2382, 2389 (1991). Moreover, not every
instance of a police show of authority constitutes a seizure.
California v. Hodari D., 499 U.S. 621, 626, 113 L. Ed. 2d 690, 697,
111 S. Ct. 1547, 1550 (1991). A seizure requires physical force
or, where that is absent, submission to the assertion of authority.
Hodari D., 499 U.S. at 626, 113 L. Ed. 2d at 697, 111 S. Ct. at
1551. In other words, absent physical force, a police show of
authority in activating lights and siren does not amount to a stop
until the defendant submits to the show of authority. In the
present case, a stop could not have occurred until the defendant
actually submitted to the police show of authority by pulling over
and stopping his vehicle. Thus, a stop did not occur until the
defendant actually submitted to the police officer s authority by
stopping in the Jewel parking lot.
Additionally, we note that when a squad car activates its
lights and siren, a motorist is required by statute to yield the
right-of-way and pull to the right-hand edge of the road. 625 ILCS
5/11 -907 (West 1996). This does not amount to a stop under the
fourth amendment. We hold that it is only when it becomes clear to
a reasonable person that the officer s efforts are directed at that
particular motorist to pull over that a stop can occur within the
meaning of Bostick. Under the circumstances, we find that the
trial court s decisions to deny the defendant s motion to suppress
and his petition to rescind the statutory summary suspension of his
license were not against the manifest weight of the evidence.
The defendant next argues that the trial court erred in
refusing to declare a mistrial when the arresting officer testified
that [the defendant] told me he had been through this before.
The defendant contends that this testimony was a violation of the
trial court s order granting the defendant s motion in limine,
which precluded the State from introducing any evidence of the
defendant s prior DUI offenses.
It is well settled that evidence of other crimes is not
admissible to show propensity to commit crimes. People v. Carroll,
257 Ill. App. 3d 663, 667 (1993). However, such evidence is
admissible for any other relevant purpose such as to show the
circumstances of the arrest. People v. McKibbins, 96 Ill. 2d 176,
182-83 (1983). Moreover, the erroneous introduction of evidence of
a defendant s prior criminal conduct does not, per se, require
reversal. People v. Bailey, 88 Ill. App. 3d 416, 422 (1980). Such
evidence is deemed harmless where the evidence of the defendant s
guilt is overwhelming. Bailey, 88 Ill. App. 3d at 422. The
decision of whether to grant a mistrial is within the sound
discretion of the trial court, and its decision will not be
reversed absent a showing that the defendant suffered prejudice.
People v. McKinney, 193 Ill. App. 3d 1012, 1017 (1990).
Here, the complained-of statement was made in response to a
question calling for an explanation of the defendant s refusal to
take a chemical breath test. The trial judge sustained defense
counsel s objection to the comment and admonished the jury to
disregard it. Assuming arguendo that the statement was erroneous,
we find that the defendant did not suffer any prejudice as a result
of the comment. Furthermore, the comment was harmless in view of
the overwhelming evidence of the defendant s guilt. In that
regard, we note that the defendant traveled approximately 1,000
feet before he stopped while being followed by the officer. When
he exited the vehicle, he nearly fell and had to use his vehicle
for support. He then proceeded to fail three field sobriety tests.
The arresting officer noted that the defendant had a strong odor of
alcohol and his eyes were red and glassy. Additionally, the
defendant admitted that he had been drinking alcohol on the night
in question. Under these facts, we find that the trial court did
not err in refusing to grant a mistrial.
Lastly, the defendant contends that the State failed to prove
him guilty beyond a reasonable doubt.
Upon judicial review, the relevant question is whether,
reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime charged beyond a reasonable doubt.
People v. Collins, 106 Ill. 2d 237, 261 (1985). A reviewing court
should not substitute its judgment for that of the trier of fact on
questions involving the weight of the evidence or the credibility
of the witnesses. People v. Stremmel, 258 Ill. App. 3d 93, 107
(1994).
Here, we find that a rational trier of fact could have found
the defendant guilty of DUI beyond a reasonable doubt. As we
previously stated, Officer Dowdle s observation of the defendant s
conduct upon exiting his vehicle and the defendant s failure of
three field sobriety tests supported the jury s finding that the
defendant was guilty beyond a reasonable doubt of DUI.
For the foregoing reasons, we affirm the judgment of the
circuit court of Lake County.
Affirmed.
HUTCHINSON, J., concurs.
JUSTICE COLWELL, dissenting:
I respectfully dissent. After considering the totality of the
circumstances, I believe Officer Dowdle lacked sufficient facts, at
the time of the stop, to justify an investigatory stop. Thus, the
trial court s denial of the motion to suppress was manifestly
erroneous, and I would reverse and remand for a new hearing on
defendant s petition to rescind the statutory summary suspension.
My inquiry begins with a determination as to when Officer
Dowdle stopped defendant. Without a stop, there is no seizure, and
absent a seizure, the fourth amendment is not implicated. People
v. Taggart, 233 Ill. App. 3d 530, 547 (1992). A seizure occurs
when a police officer, by means of physical force or a show of
authority, has in some way restrained the liberty of a citizen.
United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497,
509, 100 S. Ct. 1870, 1877 (opinion of Stewart and Rehnquist,
JJ.)(1980). The test for determining when a police officer has
seized a citizen is whether, in view of all the surrounding
circumstances, a reasonable person would have believed he or she
was not free to leave. Florida v. Royer, 460 U.S. 491, 501-02, 75
L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326 (1983).
In City of Highland Park v. Lee, 291 Ill. App. 3d 48, 54
(1997), this court found that a police officer s use of emergency
lights constituted a show of authority used to restrain a citizen s
liberty, and, thus, the traffic stop was a seizure. See Michigan
v. Chesternut, 486 U.S. 567, 572-75, 100 L. Ed. 2d 565, 571-73, 108
S. Ct. 1975, 1978-80 (1988)(suggesting that activation of siren or
flashing lights might constitute a seizure); 4 W. LaFave, Search
and Seizure 9.3(a), at 97 n.45, 109 n.100 (3d ed. 1996 & Supp.
1998)(cases cited therein). In contrast, in People v. Long, 99
Ill. 2d 219, 231 (1983), our supreme court found that no stop
occurred when a police officer, in his squad car, followed the
defendant s truck for about a quarter of a mile before the
defendant voluntarily pulled over, since the officer never
activated his squad car s light or siren. See also People v. Erby,
213 Ill. App. 3d 657, 662 (1991) (no stop occurred when a police
officer shined a light into a parked car where the officer did not
use his flashing police lights as a show of authority); People v.
Graves, 196 Ill. App. 3d 273, 277 (1990) (no stop occurred when a
police officer drove up to the side of the defendant s parked car,
"particularly where there is no evidence that the officer activated
any emergency lights or displayed any other overt signs of
authority"); Taggart, 233 Ill. App. 3d at 547 (where the officer
did not activate his mars light or any other signal lights, no stop
occurred until the police officer asked the defendant to remain
near his squad car). Accordingly, I find that a stop occurred when
Officer Dowdle activated his squad car s lights and siren.
The majority relies on California v. Hodari D., 499 U.S. 621,
113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), but the facts in that
case are distinguishable. In Hodari, the defendant ran down an
alley when he noticed a police officer s unmarked car round a
corner. An officer, on foot, chased and caught the defendant.
That case did not involve the activation of a police light or
siren, nor did it involve the stop of a vehicle in traffic. Thus,
Hodari provides no support for the majority s position.
The next question is whether the stop was reasonable. The
majority admits that, without the fact that defendant continued to
travel after Officer Dowdle activated his car s lights and siren,
Officer Dowdle s observations provided insufficient corroboration
of the anonymous informant s tip. The court in People v.
Messamore, 245 Ill. App. 3d 627 (1993), however, rejected the
consideration of any facts occurring after the officer activated
his squad car s lights. In Messamore, after receiving an anonymous
informant s call, the police followed a vehicle for four to six
blocks without incident before activating their squad car s lights.
The defendant drove about one-eighth to one-fourth of a mile before
stopping in a parking lot. Messamore, 245 Ill. App. 3d at 628-29.
The State argued that the stop was justified because the
defendant continued to drive after the police activated their
lights. Messamore, 245 Ill. App. 3d at 630. The court, however,
stated that the requirements for a stop must be met prior to the
stop. "To hold otherwise would allow police officers to justify a
stop using events occurring after their reasonable suspicion was
supposed to have been formed to support their actions." Messamore,
245 Ill. App. 3d at 630. I also refuse to consider any facts
occurring after Officer Dowdle activated his lights and siren.
Additionally, when considering the totality of the
circumstances, the facts do not support a stop. For example, the
anonymous informant did not identify the location on Route 83 where
he observed the brown Cadillac heading south from the Lake Villa
area. The suspect may have been too far north on Route 83 to
travel south and reach the intersection with Rollins Road in the
two minutes it took Officer Dowdle to locate defendant after
receiving the radio dispatch.
Similarly, the informant indicated that the suspect was
traveling south on Route 83, but Officer Dowdle first observed
defendant in the eastbound lane of Rollins Road waiting for the
traffic light at the intersection with Route 83. Thus, in two
minutes, defendant would have had to travel south from an
unidentified location on Route 83, turn right on Rollins Road, and
turn around across two lanes of westbound traffic to reach the
location where Officer Dowdle first observed him.
In addition, defendant denied being on Route 83 that evening,
and his testimony was uncontradicted. Moreover, defendant s
explanation regarding his presence at the intersection was
plausible. Defendant testified that, since his wife was going to
be home late, he was traveling from his house to a Mexican take-out
restaurant in Rollins Plaza, east of the intersection of Route 83
and Rollins Road. Defendant explained that he lived seven houses
north of Rollins Road and west of the intersection. Thus, he
turned left on Rollins Road and was eastbound when he was pulled
over. Office Dowdle also testified that defendant was ultimately
traveling to a Mexican restaurant.
Moreover, Officer Dowdle followed defendant for 400 to 500
feet before activating his car s lights and siren. Officer Dowdle,
however, admitted that he did not observe any erratic driving.
Furthermore, Officer Dowdle testified that, to the best of his
recollection, the anonymous informant provided a partial license
plate number. Officer Dowdle s report, however, did not include
the partial license plate number.
In addition to these factual weaknesses, the majority s
reliance on Village of Gurnee v. Gross, 174 Ill. App. 3d 66 (1988),
is misplaced. In Gross, unlike this case, the radio dispatch
identified the exact location (4200 block of Blackstone) where the
reckless driving complaint originated and included an entire
license plate number. Furthermore, the officer in Gross, with his
lights activated, clearly instructed the defendant to pull over,
but the defendant continued driving before pulling over after the
officer had turned around and followed him.
The facts in this case are also in contrast with the facts in
People v. Diaz, 247 Ill. App. 3d 625 (1993). In Diaz, the
informant s tip contained information similar to the information
provided the police in this matter, but the Diaz court relied
solely on the officer s own observations of the defendant s erratic
driving to justify the stop. Diaz, 247 Ill. App. 3d at 627. In
this case, Officer Dowdle did not observe any erratic driving.
On the other hand, the facts in this case are similar to the
facts in City of Lake Forest v. Dugan, 206 Ill. App. 3d 552 (1990).
In Dugan, this court affirmed the trial court s order granting the
defendant s motion to suppress. The informant in Dugan provided
the police with a more detailed tip than the tip in this case, but,
like this case, there was no evidence the officer observed any bad
driving. Dugan, 206 Ill. App. 3d at 555.
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