APPEAL from the Circuit Court of Carroll County; the Hon. JOHN
W. RAPP, JR., Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant, George Estrada, was arrested on April 9, 1977, and charged with the unlawful possession of cannabis found in his car. Defendant filed a motion to suppress evidence on the grounds that the search of his car and the seizure of the cannabis violated his fourth amendment rights. On July 6, 1977, the trial court entered an order that the initial stop of the defendant's car was improper and that all evidence flowing from that stop should be suppressed. The State has appealed from that order.
On the evening of April 9, 1977, two Illinois State troopers, Bein and Mottin, were performing a "vehicle check" near the intersection of Illinois Route 78 and U.S. Route 52. The troopers would stand in the highway and wave cars over as they approached. One trooper would check out one car to see if its headlights, tail lights and turn signals were operating properly and whether its tires were in proper condition, while the other trooper attended to the next car. The cars "were stopped on the basis of whoever came through * * * [an officer] would inspect one vehicle and turn him loose and whatever vehicle came along next would be the next vehicle to be checked." Defendant's car was among those motioned to the side of the road by Trooper Bein. After the trooper walked to the side of the car to advise defendant of the vehicle check, a series of events occurred which culminated in the arrest of defendant for possession of cannabis. We see no need to discuss all of those events in detail but merely note that we concur with the trial court that the actions of the police subsequent to the stop of defendant's auto were constitutional.
Before discussing the legal issues connected with the stop a factual comment is in order. This case involves a systematic, non-arbitrary type of check (hereinafter a systematic check). This can be distinguished from a discretionary or spot check (hereinafter a spot check) which involves the selection by the police of a single car or a few cars to check. It is not clear from the record whether the traffic was light enough for the troopers to stop every car passing their checkpoint or whether some cars passed by while the troopers were both occupied, but it is irrelevant whichever was the case. It is not necessary for a checkpoint to stop every car in order to be systematic but only for officers to be following some pattern that will minimize their discretion in chosing whether to stop a particular auto.
Thus, the only issue before us is whether Illinois police can systematically stop cars at a particular point in order to check safety equipment.
• 1 The legality of this type of safety check is dependent on two questions. (1) Does such a procedure conflict with the fourth amendment of the United States Constitution's prohibition against unreasonable searches and seizures? *fn1 (2) Even if such a procedure is constitutional, does Illinois State law authorize its use by the police in this State? It is important to recognize that these are two basically separate questions. The trial court did not rule on the constitutional question but rather held the stop invalid strictly on the basis of the second question, emphasizing the absence of any Illinois statute expressly authorizing police to stop vehicles to check safety equipment. It seems advisable, however, for us to discuss both questions.
Even a brief stop of a car to check its safety devices falls within the ambit of the fourth amendment. That amendment applies to all seizures of a person, no matter how brief. Whenever a police officer restrains the freedom of a citizen to walk away, he has seized that person. See United States v. Brignoni-Ponce (1975), 422 U.S. 873, 45 L.Ed.2d 607, 95 S.Ct. 2574; Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868.
Only California has dealt specifically with the constitutionality of checkpoints for safety inspections. In People v. DeLaTorre (1967), 257 Cal.App.2d 162, 64 Cal.Rptr. 804, the California Court of Appeals upheld the constitutionality of a California statute giving police the right to inspect for safety defects. DeLaTorre is very similar to the case before us. Although it involved an express statutory authorization not present in Illinois, that difference does not alter the fact that the California court found such stops to be constitutional.
• 2 In Illinois it is well settled that a police officer may constitutionally stop an auto and briefly question its occupants when the officer reasonably infers from the circumstances that one of them is committing, is about to commit or has committed an offense. (See Ill. Rev. Stat. 1977, ch. 38, par. 107-14; Terry v. Ohio.) Such an offense can be related to the condition of the auto itself. Stops for no brakelights (People v. Cannon (1974), 18 Ill. App.3d 781, 310 N.E.2d 673), a defective headlight (People v. Lichtenheld (1976), 44 Ill. App.3d 647, 358 N.E.2d 694), no lights (People v. Tilden (1974), 26 Ill. App.3d 447, 325 N.E.2d 431), and no license plates (People v. McConnell (1977), 48 Ill. App.3d 355, 362 N.E.2d 1280; People v. Miezio (1968), 103 Ill. App.2d 398, 242 N.E.2d 795), have all been upheld.
Both Illinois and a number of other States have considered the question of whether an officer can stop an auto to ask for the driver's operator's license, even in the absence of any reason to believe that that particular driver did not have a valid license. Although based on different facts, these driver's license cases focus on the same basic constitutional questions involved in the instant case.
The reasonableness of searches and seizures depends upon a balance between the public's interest and the individual's right to freedom from arbitrary interference by law officers. (See Terry v. Ohio.) Some States have held the balance of public and private interests in this type of case to be in favor of the State. Others feel that a random stop, even for a mere driver's license check, is too much interference.
The import of our own rulings in this area is not completely clear. In People v. Francis (1971), 4 Ill. App.3d 65, 280 N.E.2d 49, we stated that routine spot checks for driver's licenses are constitutional provided they were not used as a subterfuge to search for evidence of some other crime. However, the facts in Francis are not particularly close to those in the instant case. Defendant there was not actually in his car parked by the side of the highway. His conviction for driving without a valid license was reversed because of no proof that he had actually been driving. Subsequently, in People v. James (1976), 44 Ill. App.3d 300, 358 N.E.2d 88, we affirmed the suppression of evidence after an officer had stopped a vehicle to "check out the car and find out what the occupants were doing." We stated that the forcible stop of a motorist was permissible only when,
"* * * the officer is able to point to specific and articulable facts which when taken together with rational inferences reasonably warrant suspicion that a crime is being committed, has been committed, or is about to be committed. This requirement is deemed necessary to prevent the police from having absolute discretion to intrude into the lives of the occupants of motor vehicles. To permit such discretion would tend to preclude judicial review of the actions of police and remove a buffer which has traditionally existed between the citizen and the police officer." People v. James (1976), 44 Ill. App.3d 300, 303, 358 N.E.2d 88, 91.
If the language in Francis is followed, an Illinois officer can stop an auto, either because of a reasonable inference of an offense, or to do a spot check of a driver's license. If, however, the language in James controls, as a more recent statement of policy, there must be a reasonable inference of ...