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People v. Greco

January 17, 2003


Appeal from the Circuit Court of Du Page County. No. 00-DT-4618 Honorable Stephen J. Culliton and Kenneth W. Torluemke, Judges, Presiding.

The opinion of the court was delivered by: Justice O'malley

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) (West 2000)), 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 to concurrent two-year terms of supervision and ordered defendant to pay restitution not to exceed $300. On appeal, defendant argues that the trial court erred in (1) denying his motion to quash arrest and suppress evidence and (2) failing to set a definite amount of restitution. We affirm.

Defendant was the only witness called during the suppression hearing. He testified that at about 12:40 a.m. on October 23, 2000, he was driving on Waxwing Street, a two-lane highway. He noticed a police car following him. Its emergency lights were not activated. At some point, the officer activated the lights, and defendant pulled over. The officer arrested defendant, searched defendant and his vehicle, and removed items from the vehicle. At the time of the traffic stop, defendant was not violating any traffic laws, and to defendant's knowledge there were no outstanding warrants for his arrest.

During cross-examination, defendant admitted that, while the officer was following him, his vehicle swerved two or three times from the center of the road towards the curb. The officer stopped defendant and talked to him about his driving. Defendant denied that he told the officer he swerved because he was attempting to fasten his seat belt. Defendant admitted that he swerved because he 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 a vehicle weaving within its own lane is not subject to being stopped. Reasoning that there is a difference between weaving and swerving, Judge Culliton granted the State a directed finding and denied defendant's motion. Defendant filed a motion to reconsider, which Judge Culliton denied.

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

Schubrych told defendant why he stopped him. Defendant claimed that he was swerving because he was attempting to fasten his seat belt. Schubrych detected an odor of cannabis emanating from defendant and noticed that defendant's eyes were bloodshot and glassy. Schubrych asked defendant where he had been, and defendant responded that he came from a friend's house on Tupelo Street. Schubrych asked defendant if he had been smoking cannabis, and defendant replied that he had smoked cannabis about 30 minutes earlier. Defendant's speech was slowed and slurred. Defendant failed all field sobriety tests except for the alphabet test.

Schubrych arrested defendant. He searched defendant and found two burned "roaches" containing a green leafy substance and a mirror with white residue on it. Laboratory reports revealed that the green substance weighed .2 grams and was cannabis.

Defendant was brought to the police department and later to a hospital, where he gave blood and urine samples. Laboratory reports revealed that defendant had tetrahydrocannabinol (THC) in his system. Defendant was brought back to the police department. While in his cell, defendant was allowed to make a telephone call to arrange for bond. Defendant slammed the telephone receiver against a tray on the cell door and thereby rendered the telephone inoperable.

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

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

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

An officer may make a valid investigatory stop without probable cause to arrest when there is a reasonable suspicion of criminal activity. People v. Juarbe, 318 Ill. App. 3d 1040, 1049 (2001). A traffic stop requires a reasonable suspicion that the vehicle or an occupant is subject to seizure for a violation of the law. People v. Rush, 319 Ill. App. 3d 34, 39 (2001). The stop must be based on more than a mere hunch. People v. Welling, 324 Ill. App. 3d 594, 600 (2001). Generally, an officer's observation of a traffic violation or erratic driving provides a sufficient basis 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, the arresting officer testified that he saw the defendant's car weave back and forth within its own lane. He estimated that, when it weaved, the car came within three to six inches of the center line and the "fog line" on the right side of the lane. This court held that there was no valid basis for the traffic stop. First, the court reasoned that section 11--709(a) of the Illinois Vehicle Code (625 ILCS 5/11--709(a) (West 2000)) recognizes that a vehicle cannot be driven in a perfectly straight line. Manders, 317 Ill. App. 3d at 341. ...

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