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03/23/88 the People of the State of v. Gavin P. Houlihan

March 23, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

GAVIN P. HOULIHAN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 277, 167 Ill. App. 3d 638, 118 Ill. Dec. 209 1988.IL.414

Appeal from the Circuit Court of Du Page County; the Hon. Thomas E. Callum, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, Gavin Houlihan, was charged with two counts of driving under the influence of alcohol. (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501.) The trial court granted his motion to suppress evidence and quashed his arrest on the ground that the arresting officer had no reasonable basis to stop defendant's vehicle. The State appeals, contending that the officer's decision to stop defendant's truck was reasonable under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and section 107-14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 107-14).

Officer Hugh DeWitt of the Wheaton police department was on routine patrol at approximately 2:50 a.m. on May 29, 1986. He was headed west on Sawyer Avenue in a residential section of Wheaton when he saw a truck headed in the opposite direction. As the truck, which was being driven by defendant, approached DeWitt's car, the officer heard a loud noise which he described as similar to a snowplow on dry pavement. DeWitt testified that he could tell there was something under defendant's truck, but he could not identify the object because he was blinded by defendant's headlights. DeWitt then stopped defendant's truck.

As defendant and DeWitt both got out of their vehicles, DeWitt noticed that defendant had an odor of alcohol on his breath and seemed unsure of his balance. DeWitt asked defendant if he was aware of a loud noise coming from his truck and whether there were any problems with the truck. Defendant responded that there was nothing wrong with his truck. DeWitt then looked under the front end and noticed a large plastic garbage can wedged underneath the truck between the front bumper and the wheel well. DeWitt asked defendant what had happened. Although defendant had previously told DeWitt that he was on his way home from Lombard, he then stated that he must have run over the trash can when he left his house.

DeWitt then administered two field sobriety tests. In his opinion, defendant did not perform well on these tests. DeWitt then informed defendant that, in the officer's opinion, he was under the influence of alcohol and arrested him.

Officer William Cannon of the Wheaton police department also testified. Cannon arrived on the scene while DeWitt was administering the sobriety tests. Cannon noticed the garbage can wedged under the front end of defendant's truck. Cannon investigated how the can came to be there. Papers in the can led Cannon to an address on Sawyer Avenue. Upon arriving at that address, he noticed garbage strewn for some 60 yards down the street. Cannon saw tire tracks on the parkway leading up to other garbage cans similar to the one under defendant's truck. After hearing this evidence, the court granted defendant's motion. The court found that Officer DeWitt did not see the garbage can under defendant's truck prior to making the stop, and that the mere fact of hearing a noise did not provide a specific and articulable basis for the stop. The State appeals, contending that the loud noise emanating from defendant's truck at 3 a.m. provided the officer with a sufficient basis to make an investigatory stop.

This case comes to us in an unusual posture. While the defendant has the burden of proof on a motion to suppress evidence to establish that, in the instant case, there was no factual basis for a reasonable suspicion that defendant had committed or was committing a crime, the State presented the only case. (People v. Neal (1985), 109 Ill. 2d 216, 486 N.E.2d 898.) Defendant presented no case. The State called Officer DeWitt, who stopped defendant, and Officer Cannon, who came upon the scene subsequent to the stop. The defense called no witnesses. However, Officer DeWitt's testimony, on cross-examination by defense counsel, adduced relevant evidence supporting defendant's motion. The trial court could have concluded that the cross-examination of Officer DeWitt established a prima facie showing that the facts known to the police did not establish an articulable basis for a reasonable belief that defendant had committed a felony or misdemeanor sufficient to authorize an investigatory stop. (See Ill. Rev. Stat. 1985, ch. 38, par. 107-14.) The record discloses the following question and answer by defense counsel and Officer DeWitt respectively:

"Q. What laws did you observe Mr. Houlihan break in your presence?

A. None."

The record also discloses the following testimony by ...


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