June 20, 2001

Defendant, Shelly R. Rockey, was charged with driving underthe influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West1998)) as the result of an incident on April 15, 1999. Becauseshe refused or failed to complete blood-alcohol testing,defendant, who qualified as a first-time offender, received astatutory summary suspension of her driving privilege for sixmonths. Defendant petitioned to rescind the suspension, allegingthat there was no probable cause (reasonable ground) orconstitutional basis to stop or detain defendant or her vehicle. After an evidentiary hearing, the trial court granted defendant'spetition to rescind on July 7, 1999. The State filed a motion toreconsider.

Defendant also filed a motion to suppress evidence. Theparties apparently agreed that no further evidence would be taken,and arguments were presented to the court based on the sameevidence received during the rescission hearing. In March 2000,the court granted defendant's motion to suppress evidence anddenied both the State's motion to reconsider the rescission orderand its motion to reconsider the suppression order.

The State timely appeals, arguing that the trial court erredin granting defendant's petition and motion because the "evidenceadequately supported an articulable and reasonable basis" for aTerry or investigative stop that led to defendant's subsequentarrest for DUI. We affirm the trial court's orders.

At the suspension hearing, Deputy Sheriff Pamela Wilsontestified that, between 12 and 1 a.m., she was driving an unmarkedvehicle in Cedarville, a residential village having a populationof about 400. She was wearing a shirt marked "Police" on thefront of it, and she had a badge. Driving south on Route 26(Stephenson Street), she passed Oak Street, an east-west street,when she observed on her right what looked like a pickup truckwith its lights on parked in the north-south alley that runsbetween Stephenson Street and Harrison Street. She went aroundthe block by going down to Cherry Street, then Harrison Street,and turned onto Oak Street, heading east toward Stephenson. Shethen observed the vehicle turning right from Oak south ontoStephenson. When Wilson got to Stephenson, she saw the vehicleturn west onto Cherry. In effect, Wilson followed the vehiclearound the block so that both vehicles were going west on CherryStreet. Defendant's vehicle turned northbound onto Harrison andthen turned into a driveway off of Harrison Street. Wilson pulledonto Harrison and stopped in the street "just prior" (to thedriveway).

When asked what was suspicious about this vehicle, Wilsonnoted the time of morning and the proximity of the alley toBarkau's auto dealership, which had been burglarized "numeroustimes before," and she said her suspicion was raised because inthe prior 10 days there had been a lot of business burglaries. When asked what facts Wilson had that might lead her to believedefendant was breaking into any cars since she was not on the lot,Wilson replied that she had none but felt she had a duty to checkout the situation.

Wilson said she did not stop the vehicle. Defendant got outof her vehicle and started walking toward Wilson's car as Wilsoncalled in her location to the dispatch office. Wilson got out andmet defendant about "half way" near the end of the short driveway. Wilson asked defendant if she lived at the address where shepulled into the driveway. Wilson "felt" that defendant was tryingto avoid having a vehicle behind her for some reason. Wilsonthought it was unusual for a vehicle to go around the block. Defendant said she did not live at that address, but her ex-boyfriend lived there. Defendant walked from the driver's doorto the back end of her truck. While speaking with defendant,Wilson could smell a "very strong odor of [an] alcoholic beverage"on her breath, and as she walked back, Wilson noticed that she"staggered somewhat." Defendant was not under arrest. Wilsonasked her for identification because of her suspicion regardingher presence in the alley, the odor of the alcoholic beverage, andthe staggering. Wilson stated that this was her "probable causeto believe that possibly she might be under the influence ofalcohol." Wilson was asked to explain her statement and the term"possibly." When asked whether she had probable cause to believedefendant had committed a crime at that time, Wilson replied,"No."

After obtaining defendant's driver's license, Wilson tolddefendant to wait. Wilson detained defendant while Wilson wentto her police car, made a call for assistance, and ran a recordcheck. When asked what the basis was for making defendant stayin place while she ran a record check and defendant was notarrested for anything, Wilson answered, "I had known [defendant]in the past to have had a suspended driver's license, so to runa check to see if she was suspended any longer, and *** the factthat at that time, due to the odor of alcohol and her staggering,I--to see if she was okay to drive."

When asked what defendant had done wrong to be detained,Wilson answered, "At that point she hadn't done anything wrong." When defendant handed over her driver's license and Wilson saw hername, she remembered that defendant had been suspended, but Wilsondid not remember how many years before this had occurred; Wilsonwanted to know if defendant was still suspended.

On cross-examination, Wilson further testified that therewere numerous burglaries in the prior 10 days throughout thecounty, but none were in Cedarville. Wilson stated that thelicense came back "valid." Wilson was suspicious that defendanthad not taken the most direct route to the driveway.

On redirect examination, Wilson agreed that, if defendant hadbacked out of the driveway and gone around the block, Wilson wouldhave let her go, but then Wilson acknowledged that defendant would not have been free to go until Wilson had detained her to make thedriver's license check.

Defendant argued that a seizure took place in the drivewayfor fourth amendment purposes and that there was no probable causeto believe that an offense had been committed and no articulablefacts to warrant a Terry detention. The State argued that theofficer had reasonable suspicion because the vehicle was stoppedin the alley at night, there had been numerous burglaries in thecounty, circuitous driving led the officer to believe that therewas an attempt to evade, and a valid investigatory stop was made. The State concluded that "together with all the facts, thatcertainly the officer did have reason to stop the vehicle andtherefore thereafter, once upon smelling the alcohol and observingthe walking, to proceed with the questioning [sic] arresttherefrom." In granting defendant's petition, the court stated,"The Court does not believe that the officer's suspicion in thisinstance was reasonable." The court later granted defendant'smotion to suppress.

A ruling on a petition to rescind or a motion to suppress hasgenerally been reviewed applying a manifest error standard. SeePeople v. Scott, 249 Ill. App. 3d 597, 601 (1993). Thus, inreviewing the lawfulness of a search or seizure, when the trialcourt's ruling involves factual determinations and credibilityassessments, the decision will be reversed on appeal only if itis manifestly erroneous or against the manifest weight of theevidence--that is, only where an opposite conclusion is clearlyevident from the record. People v. Buss, 187 Ill. 2d 144, 204(1999); Scott, 249 Ill. App. 3d at 601. A trial court'sdetermination regarding factual matters, including the reasonableinferences to be drawn from the witnesses' testimony, is entitledto deference by the reviewing court. People v. Robinson, No. 2--00--0240, slip op. at 5 (April 27, 2001); People v. Sanchez, 292Ill. App. 3d 763, 768 (1997). However, where there is no factualor credibility dispute and the question involves only theapplication of the law to the undisputed facts, our standard ofreview is de novo. People v. Sims, 192 Ill. 2d 592, 615 (2000);see Sanchez, 292 Ill. App. 3d at 768 (trial court's ultimatedetermination regarding reasonableness of warrantless search issubject to de novo review); see also In re G.O., 191 Ill. 2d 37,46-50 (2000) (contrasting deferential manifest error standardapplicable to factual findings with de novo standard applicableto ultimate questions involving reasonable suspicion and probablecause).

The State first argues on appeal that the officer neverstopped defendant's vehicle because the officer merely approacheddefendant after defendant had parked her vehicle. The Stateconcludes that the fourth amendment prohibition againstunreasonable searches and seizures was not implicated as this waspresumably a consensual police-citizen encounter rather than a"seizure." See Scott, 249 Ill. App. 3d at 603.

Without specifically informing this court of the precisemoment when the stop did take place, the State then argues that,even assuming arguendo there was Terry stop, it was justifiedbecause defendant's behavior was suspicious--because it was earlyin the morning, she was present near Barkau's car dealership,there had been a number of business burglaries in the "area"(i.e., the county), Barkau's had been burglarized a number oftimes before, and the circumstances warranted furtherinvestigation. The State concedes that an individual's presencein an area of expected criminal activity, standing alone, is notenough to support a reasonable, particularized suspicion that theperson is committing a crime. Illinois v. Wardlow, 528 U.S. 119,124, 145 L. Ed. 2d 570, 576, 120 S. Ct. 673, 676, (2000). However, the State argues that defendant's "evasive" behaviorcoupled with the officer's knowledge of the area justified theofficer's "preliminary investigation."

We first address whether and when there was a stop or seizureof defendant and whether it was lawful. A warrantless search orseizure is unreasonable per se unless it comes within a specific,well-delineated exception to the constitutional warrantrequirement such as a valid, investigative Terry stop or an arrestbased upon probable cause. People v. Ertl, 292 Ill. App. 3d 863,868 (1997). An officer may make a valid investigatory stop of aperson in a public place when the officer reasonably infers fromall the facts and circumstances that the person is committing, hascommitted, or is about to commit an offense. Ertl, 292 Ill. App.3d at 868. The inquiry concerns whether the officer's conductwas reasonable under the circumstances known to the officer at thetime the stop was initiated, and the officer's inferences must bebased on more substantial facts than would support a mere hunch. Ertl, 292 Ill. App. 3d at 868. The reasonableness of the policeconduct depends upon balancing the public's interest and theindividual's right to personal security free from arbitraryinterference by law officers. People v. Pantoja, 184 Ill. App.3d 671, 674 (1989).

First, we agree that the initial encounter when the defendantstopped her truck in the driveway and then approached the officerwas not a stop or "seizure" for fourth amendment purposes, becausedefendant's conduct appears to have been voluntary and there wasno show of authority by the officer at that time. See Scott, 249Ill. App. 3d at 603.

The stop occurred when the officer took defendant's faciallyvalid driver's license and told her to wait until she could runa record check of the license. A person is "seized" when, bymeans of physical force or a show of authority, that person'sfreedom of movement is restrained, and a court will considerwhether, in view of all the circumstances, a reasonable personwould have believed he or she was not free to leave. People v.Brownlee, 186 Ill. 2d 501, 517 (1999). Furthermore, the fourthamendment applies even to seizures that involve only a briefdetention short of arrest. Brownlee, 186 Ill. 2d at 518. Here,a reasonable person would not have felt free to leave once herlicense was taken from her, and the officer testified thatdefendant would not have been free to leave without being detainedfor the driver's license check. See People v. McVey, 185 Ill.App. 3d 536, 539 (1989) (seizure occurred when officer requireddefendant to return to his car while officer ran computer check);see also People v. Branch, 295 Ill. App. 3d 110 (1998) (absentparticularized suspicion that defendant-passenger had committeda crime, officer had no authority to request and run a warrantcheck on identification of defendant).

We next examine whether the stop was objectively justified. A person cannot lawfully be seized unless there are reasonable,objective grounds for doing so, and, to sustain a Terry stop, theofficer must be able to point to specific and articulable factswhich, taken together with rational inferences from those facts,reasonably warrant the intrusion. McVey, 185 Ill. App. 3d at 539.

The State argues that, to the extent there was a stop, theofficer's suspicion was justified because defendant was presentearly in the morning in an area that had been known to haveburglaries (at some undetermined time in the past) and defendantwas "evasive." However, the officer testified that she had nofacts leading her to believe that defendant was breaking into anycars; the officer later conceded that there were burglaries in thecounty in the previous 10 days, but none were in Cedarville. Furthermore, although the officer "felt" that defendant was tryingto avoid having a vehicle behind her "for some reason," the factsknown to the officer point to no more than an impermissible hunch. There is no sound basis to believe that defendant was evading apolice officer, who was driving an unmarked car, merely becausedefendant drove around the block. In fact, defendant stopped andvoluntarily approached the officer. We simply cannot equate thisconduct with the suspicious type of headlong flight of thedefendant in a high-crime area known for heavy narcoticstrafficking that was described in Illinois v. Wardlow. See alsoPeople v. Vanderver, 158 Ill. App. 3d 178 (1987) (police lackedreasonable, articulable suspicion of criminal activity where carwas driven down residential street at slow rate of speed at 2:30a.m., stopped, and changed direction in apartment complex wherethere had been numerous car thefts). Thus, the stop cannot besustained on the basis of a reasonable suspicion that an offensewas being committed prior to defendant's stopping in the driveway.

The State then jumps to a cursory and conclusory probablecause argument, citing a case where the reviewing court wasprincipally concerned with whether consent to submit to a blood-alcohol test was necessary to introduce evidence of the result ina DUI trial under the statute then in force. Village of Algonquinv. Ford, 145 Ill. App. 3d 19 (1986) (in ruling on whether consentwas necessary for compulsory blood test, court also found thatofficer had "probable cause to investigate" and administer fieldsobriety tests to a motorist whose vehicle was stopped with themotor running and the lights on and the motorist was slumped overthe steering wheel and did not respond to the officer's attemptsto arouse her). The State merely concludes that a "similar resultshould obtain here, based on the foregoing circumstances." Thisconclusory argument fails to explain exactly how the cited caseapplies to the one at bar and lacks the detailed legal analysisthat would aid this court in determining whether and whendefendant was also lawfully seized for DUI purposes, as the Stateseems to suggest. Arguing an issue in a conclusory fashion orfailing to adequately brief or argue an issue results in thewaiver of the issue. Spinelli v. Immanuel Lutheran EvangelicalCongregation, Inc., 118 Ill. 2d 389, 401 (1987).

Even absent waiver, we believe the State's argument fails. Ford is inapposite because there, the driver's lethargic state,in a parked car that was running with the lights on, indicated thedriver was severely impaired and was DUI. In the present case,although the officer's testimony notes, in passing, that fieldsobriety tests were later performed, there is no testimonyregarding when and how the sobriety tests were administered. Thus, we do not reach the issue whether probable cause to arrestdeveloped after the tests were administered.

An officer may have probable cause to arrest when thetotality of the facts known to the officer are such that areasonable, prudent person would believe that the suspect iscommitting or has committed a crime. Scott, 249 Ill. App. 3d at601. In this case, the officer's testimony regarding the reasonfor the detention or "seizure" of defendant is problematic becausethe testimony is at times either equivocal or inconsistent. Theofficer testified that she asked for the identification becauseof her suspicion regarding defendant's presence in the alley, thestrong odor of the alcoholic beverage, and because defendant"staggered somewhat." She stated that she had "probable cause"to believe that "possibly" defendant "might be under the influenceof alcohol." However, when then asked whether she had probablecause to believe defendant had committed a crime at the time, theofficer said, "No." She then testified that the reason for thelicense check was because she thought that defendant's license wassuspended at some prior undetermined time, and she added,ambiguously, "to see if she was okay to drive." However,when defense counsel asked what defendant had done wrong to bedetained, the officer replied, "At that point she hadn't doneanything wrong."

The officer then stated she wanted to know if defendant'slicense was still suspended. The officer further testified thatshe would have let defendant back out of the driveway and go--butnot until she had detained defendant to make the driver's licensecheck. The natural inference here is that the officer wasconcerned not about defendant's fitness to drive but whetherdefendant had a lawful license to drive.

We conclude that the testimony does not support probablecause to believe defendant had committed an offense. The Statefailed to further develop the DUI issue in the trial court whereit could easily have done so. The officer did not observedefendant violate any laws or drive in an erratic manner, and theindicia of intoxication for probable cause to develop in theofficer's presence are ordinarily far more substantial than thetwo mentioned in this officer's testimony. See, e.g., Scott, 249Ill. App. 3d 597 (indicia included staggering, swaying whilestanding, odor of alcohol, slurred speech, and bloodshot eyes). Although the officer stated defendant was "possibly" under theinfluence of alcohol, her reasons for the detention focus on theofficer's ultimately incorrect suspicion or hunch that defendantwas driving with a suspended license--a suspicion that had noreasonable, factual basis at the time of the stop and is, withoutmore, insufficient to support a lawful Terry stop.

To conclude otherwise would be to approve of the detention ofany driver at any time to run a license check if the officerthought the driver had committed an offense on a prior occasion. The constitutional test of reasonable and particularized suspiciondoes not support such a proposition. See United States v.Hairston, 439 F. Supp. 515 (N.D. Ill. 1977) (absent reasonablesuspicion that suspect was armed and dangerous, officer, whorecognized defendant's name on license as that of ex-convict,violated fourth amendment in searching defendant); Branch, 295Ill. App. 3d at 114 (absent reason to suspect that backseatpassenger was committing a crime, officer did not have authorityto request identification and exceeded the scope of the detentionof driver that had terminated).

Here, the trial court did "not believe that the officer'ssuspicion in this instance was reasonable." The trial court didnot make more specific findings of fact in support of its suppression order as was its statutory responsibility to do. 725ILCS 5/114--12(e) (West 1998); In re G.O., 191 Ill. 2d 37, 50(2000). While the trial court should have made more specificfactual findings in reaching its conclusion, a remand is notnecessary in this case. Instead, we must presume that, in theabsence of express findings of fact, the trial court credited onlythat part of the testimony that supports its ruling. People v.Winters, 97 Ill. 2d 151, 158 (1983). Here, this also means thatthe trial court implicitly discredited the testimony regarding thebasis for the detention.

Although the credibility of a witness and the weight to begiven the testimony are primarily within the province of the trierof fact, a reviewing court is not precluded from considering thequality and credibility of the evidence. People v. Bierman, 163Ill. App. 3d 256, 260 (1987). Even where several reasonableinferences are possible from the conflicting testimony, we mustaccept those that support the trial court's orders. Nemeth v.Banhalmi, 125 Ill. App. 3d 938, 963 (1984). To the extent thata question of fact was presented regarding the basis for thedetention of defendant, we conclude that the trial court'sdecision that the detention was unwarranted was neither manifestlyerroneous nor against the manifest weight of the evidence.

To the extent that the undisputed facts presented a questionof law to be reviewed de novo, we conclude that the officer'sstated reasons for the detention of defendant amounted to meresuspicion or hunches insufficient to support either reasonablesuspicion or probable cause.

The judgment of the circuit court of Stephenson County isaffirmed.

Affirmed.

GEIGER and BOWMAN, JJ., concur.