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People v. Brodack

April 24, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH L. BRODACK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 96--DT--3387 Honorable E. Thomas Lang and Donald H. Geiger, judges, Presiding.

The opinion of the court was delivered by: Justice Thomas

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 ...


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