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People v. Greco
State: Illinois
Court: 2nd District Appellate
Docket No: 2-01-0550 Rel
Case Date: 01/17/2003

No. 2--01--0550


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
           Plaintiff-Appellee, ) No. 00--DT--4618
)
v. )
) Honorable
CHRISTOPHER J. GRECO, ) Stephen J. Culliton and
) Kenneth W. Torluemke,
          Defendant-Appellant. ) Judges, Presiding.

JUSTICE O'MALLEY delivered the opinion of the court:

After a bench trial on stipulated evidence, defendant,Christopher J. Greco, was found guilty of driving while cannabis was present in his blood or urine (625 ILCS 5/11--501(a)(6) (West2000)), the unlawful possession of cannabis (720 ILCS 550/4(a)(West 2000)), and criminal damage to property (720 ILCS 5/21--1(1)(a) (West 2000)). The trial court sentenced defendant toconcurrent two-year terms of supervision and ordered defendant topay restitution not to exceed $300. On appeal, defendant arguesthat the trial court erred in (1) denying his motion to quasharrest and suppress evidence and (2) failing to set a definiteamount of restitution. We affirm.

Defendant was the only witness called during the suppressionhearing. He testified that at about 12:40 a.m. on October 23,2000, he was driving on Waxwing Street, a two-lane highway. Henoticed a police car following him. Its emergency lights were notactivated. At some point, the officer activated the lights, anddefendant pulled over. The officer arrested defendant, searcheddefendant and his vehicle, and removed items from the vehicle. Atthe time of the traffic stop, defendant was not violating anytraffic laws, and to defendant's knowledge there were nooutstanding warrants for his arrest.

During cross-examination, defendant admitted that, while theofficer was following him, his vehicle swerved two or three timesfrom the center of the road towards the curb. The officer stoppeddefendant and talked to him about his driving. Defendant deniedthat he told the officer he swerved because he was attempting tofasten his seat belt. Defendant admitted that he swerved becausehe was under the influence of cannabis.

The State moved for a directed finding. Relying on People v.Manders, 317 Ill. App. 3d 337 (2000), defendant argued that avehicle weaving within its own lane is not subject to beingstopped. Reasoning that there is a difference between weaving andswerving, Judge Culliton granted the State a directed finding anddenied defendant's motion. Defendant filed a motion to reconsider,which Judge Culliton denied.

On May 3, 2001, defendant agreed to a bench trial onstipulated evidence. According to the stipulations, OfficerSchubrych of the Naperville police department saw defendant'svehicle turn around at the end of Tupelo Street. Schubrychfollowed the vehicle. While southbound on Modaff Street, thevehicle began weaving back and forth. Schubrych stopped thevehicle after it turned onto Waxwing Street.

Schubrych told defendant why he stopped him. Defendantclaimed that he was swerving because he was attempting to fastenhis seat belt. Schubrych detected an odor of cannabis emanatingfrom defendant and noticed that defendant's eyes were bloodshot andglassy. Schubrych asked defendant where he had been, and defendantresponded that he came from a friend's house on Tupelo Street. Schubrych asked defendant if he had been smoking cannabis, anddefendant replied that he had smoked cannabis about 30 minutesearlier. Defendant's speech was slowed and slurred. Defendantfailed all field sobriety tests except for the alphabet test.

Schubrych arrested defendant. He searched defendant and foundtwo burned "roaches" containing a green leafy substance and amirror with white residue on it. Laboratory reports revealed thatthe green substance weighed .2 grams and was cannabis.

Defendant was brought to the police department and later to ahospital, where he gave blood and urine samples. Laboratoryreports revealed that defendant had tetrahydrocannabinol (THC) inhis system. Defendant was brought back to the police department. While in his cell, defendant was allowed to make a telephone callto arrange for bond. Defendant slammed the telephone receiveragainst a tray on the cell door and thereby rendered the telephoneinoperable.

Judge Torluemke found defendant guilty. During the sentencingphase of the hearing, the State requested that on the criminaldamage to property conviction defendant be ordered to pay "[r]estitution not to exceed $300 payable to the State's Attorney'sOffice within 60 days of demand." There was no other discussion about restitution. The sentencing order stated, "restitutionreserved not to exceed $300[.] [P]ay through SAO within 60 days ofdemand."

Arguing that the trial court erred in denying his motion tosuppress, defendant moved for a new trial. The trial court deniedthe motion. Defendant appealed on May 17, 2001.

Defendant's first contention on appeal is that the trial courterred in denying his motion to suppress. When reviewing a trialcourt's ruling on a motion to suppress evidence, we accord greatdeference to the trial court's factual findings and will reversethem only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). We review de novothe ultimate question of defendant's legal challenge to the denialof his motion. Sorenson, 196 Ill. 2d at 431. Defendant was theonly witness during the suppression hearing, and the facts essentially are undisputed. Therefore, we review de novo the trialcourt's legal conclusion that the traffic stop was proper.

An officer may make a valid investigatory stop withoutprobable cause to arrest when there is a reasonable suspicion ofcriminal activity. People v. Juarbe, 318 Ill. App. 3d 1040, 1049(2001). A traffic stop requires a reasonable suspicion that thevehicle or an occupant is subject to seizure for a violation of thelaw. People v. Rush, 319 Ill. App. 3d 34, 39 (2001). The stopmust be based on more than a mere hunch. People v. Welling, 324Ill. App. 3d 594, 600 (2001). Generally, an officer's observationof a traffic violation or erratic driving provides a sufficientbasis for a traffic stop. People v. Brodack, 296 Ill. App. 3d 71,74 (1998); People v. Perez, 288 Ill. App. 3d 1037, 1043 (1997).

Defendant argues that Manders controls here. In Manders, thearresting officer testified that he saw the defendant's car weaveback and forth within its own lane. He estimated that, when itweaved, the car came within three to six inches of the center lineand the "fog line" on the right side of the lane. This court heldthat there was no valid basis for the traffic stop. First, thecourt reasoned that section 11--709(a) of the Illinois Vehicle Code(625 ILCS 5/11--709(a) (West 2000)) recognizes that a vehiclecannot be driven in a perfectly straight line. Manders, 317 Ill.App. 3d at 341. Section 11--709(a) states that "[a] vehicle shallbe driven as nearly as practicable entirely within a single lane." 625 ILCS 5/11--709(a) (West 2000).

Also, the court noted that "weaving" has been defined as" ' the action of a vehicle that alternately diverges from andmerges into traffic flows moving in the same direction, shiftingfrom one lane to another, and repeatedly crossing the paths ofother vehicles.' (Emphasis added.)" Manders, 317 Ill. App. 3d at341, quoting Webster's Third New International Dictionary 2591(1986). Considering the definition, the court concluded that themovement of the defendant's car could not be termed "weaving" andcould not be the basis for a valid investigatory stop. Manders,317 Ill. App. 3d at 341.

We decline to follow Manders because it is contrary to theweight of authority. The well-accepted rule in this state is thaterratic driving, including weaving within a single lane, issufficient to justify a traffic stop. People v. Albright, 251 Ill.App. 3d 341, 343 (1993); People v. Diaz, 247 Ill. App. 3d 625, 627-28 (1993); People v. Faletti, 215 Ill. App. 3d 61, 64 (1991);People v. Decker, 181 Ill. App. 3d 427, 430 (1989); People v.Loucks, 135 Ill. App. 3d 530, 532-33 (1985); People v. Houldridge,117 Ill. App. 3d 1059, 1062 (1983).

The majority opinion in Manders does not acknowledge eitherthe well-settled rule or this court's decision in Diaz. In Diaz,the officer observed the defendant's vehicle " 'swerving all overthe curb side roadway.' " Diaz, 247 Ill. App. 3d at 626. Thiscourt held that, regardless of whether the vehicle crossed thewhite line or stayed within the same lane, the officer'sobservation of the defendant's erratic driving provided asufficient basis for the stop. Diaz, 247 Ill. App. 3d at 627-28.

The general rule recognizes that a vehicle may be drivenerratically even though it remains within the same lane. Manderseffectively insulates such conduct and unduly hampers effective lawenforcement. Our research reveals a general consensus that weavingwithin a single lane may be a basis for a valid traffic stop. SeeState v. Superior Court, 149 Ariz. 269, 273, 718 P.2d 171, 175(1986); People v. Bracken, 83 Cal. App. 4th Supp. 1, 4, 99 Cal.Rptr. 2d 481, 483 (2000); Roberts v. State, 732 So. 2d 1127, 1128(Fla. App. 1999); State v. Tompkins, 507 N.W.2d 736, 739-40 (IowaApp. 1993); State v. Field, 252 Kan. 657, 664, 847 P.2d 1280, 1285(1993); State v. Malaney, 871 S.W.2d 634, 637-38 (Mo. App. 1994);State v. Thomte, 226 Neb. 659, 663, 413 N.W.2d 916, 919 (1987);State v. Watson, 122 N.C. App. 596, 599-600, 472 S.E.2d 28, 30(1996); State v. Gedeon, 81 Ohio App. 3d 617, 619, 611 N.E.2d 972,973 (1992); Neal v. Commonwealth, 27 Va. App. 233, 239, 498 S.E.2d422, 425 (1998).

Some courts have concluded that an isolated instance ofweaving, slight weaving, or weaving that is neither pronounced norexaggerated does not justify an investigatory stop. State v.Binette, 33 S.W.3d 215, 219 (Tenn. 2000); Neal, 27 Va. App. at 239,498 S.E.2d at 425; Salter v. North Dakota Department ofTransportation, 505 N.W.2d 111, 113 (N.D. 1993).

We have discovered only two published decisions other thanManders adopting a blanket rule that weaving within a single lanecannot be the basis for a valid investigatory stop. Commonwealthv. Baumgardner, 568 Pa. 324, 796 A.2d 965 (2002) (per curiam);Commonwealth v. Battaglia, 802 A.2d 652, 657 (Pa. Super. 2002). These Pennsylvania decisions are based, however, on a differentstandard. A Pennsylvania statute provides that a police officermay stop a vehicle if he has articulable and reasonable grounds tosuspect violation of the Pennsylvania Vehicle Code. 75 Pa. Cons.Stat. Ann.

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