Appeal from the Circuit Court of Du Page County. No. 02-CF-607 Honorable George J. Bakalis, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Defendant, Travis Smith, was charged by indictment with aggravated unlawful use of a weapon (720 ILCS 5/24--1.6(a)(1), (a)(3)(C) (West 2000)). Defendant moved to quash his arrest and suppress the handgun that was seized from his sleeve, contending that he did not give valid consent for the search of his person. The trial court granted the motion, and the State appeals. We reverse.
The following evidence was presented at the suppression hearing. Kevin Driscoll testified that he has been a Naperville police officer for 18 years. At approximately 3:30 a.m. on February 24, 2002, he followed a vehicle onto Interstate 88 (I-88) from Naper Boulevard. When Driscoll stopped following that vehicle, he commenced a U-turn on I-88 in order to head back into the city. Immediately prior to making the U-turn, Driscoll observed a westbound vehicle pass at a very high rate of speed. Driscoll eventually stopped the westbound vehicle for speeding and failing to signal lane changes. The westbound vehicle was a 20-year-old Chevrolet Malibu with four occupants. Driscoll testified that the traffic stop occurred on I-88 approximately one mile west of Route 59. At that location, I-88 is a tollway with three lanes of traffic in each direction and a 55-mile-per-hour speed limit. Access to the tollway is restricted by a chain-link fence that runs parallel to the roadway. There are no businesses in the vicinity. Driscoll had the driver exit the vehicle, gave him field sobriety tests, and thereafter arrested him for driving under the influence of alcohol (DUI). After placing the driver into custody, Driscoll had the three passengers step out of the vehicle and identify themselves. They were defendant and two brothers, Willie and Edmond Reese. Officer Schnizlein arrived at the scene of the traffic stop to help Driscoll search the vehicle.
Officer Driscoll engaged the three passengers in a conversation as to what they were going to do next. Driscoll said that the purpose of the conversation was to determine if one of the three men could drive the vehicle from the scene. Driscoll gave a preliminary breath test (PBT) to defendant and to one of the Reese brothers. Driscoll explained that the other Reese brother admitted that his driver's license was suspended. The PBTs indicated that both men were unfit to drive. Driscoll explained that he used the PBT on defendant and the Reese brother with the valid driver's license because the men told him that they were sober enough to drive, yet Driscoll opined that they were not acting sober. Driscoll said that the Reese brother with the suspended driver's license was the only passenger who showed signs of being sober. After determining that none of the three passengers could drive the vehicle from the scene, Driscoll informed the men that the vehicle was going to be towed and offered them a courtesy ride to the police station where they could make telephone calls to arrange for transportation.
Driscoll also testified that, early on in the conversation with the three passengers, he gave them the option of using their cellular telephone to call someone to come and pick them up from the scene of the traffic stop, if someone could get them quickly enough. The older Reese brother, the intoxicated one, informed Driscoll that they were unable to reach anyone who would come and pick them up. Driscoll testified that defendant was cooperative. During his testimony Driscoll related to the court that it was his understanding that pedestrians are prohibited on the expressway except in emergency situations. Driscoll did not testify that he explicitly prohibited the men from departing on foot or that any of the men asked to do so. Driscoll did not, however, offer walking as an option. Driscoll ultimately turned the situation over to Officer Schnizlein and transported the driver to the police station.
On examination by defense counsel, Driscoll explained that if defendant had asked, he would have been permitted to wait for the tow truck to arrive and to ride from the scene of the traffic stop with the tow truck driver. Driscoll testified that he did not ask defendant if he wanted to do that because he felt that it was not his place and it would be up to the tow truck driver whether he could ride in the tow truck. When asked by defense counsel about the emergency exception to the prohibition of pedestrians on the tollway, Driscoll responded that "[t]hese gentlemen were intoxicated and I couldn't possibly sanction them walking on the expressway." Later Driscoll testified that he was concerned that the three men were going to be hit by someone if they were to walk along the tollway.
Officer Bruce Schnizlein testified that he has been a patrolman with the Naperville police department for over 24 years. On February 24, 2002, between 3 a.m. and 4 a.m., Schnizlein responded to a call by Officer Driscoll to assist at a traffic stop on I-88. When Officer Schnizlein arrived at the scene of the traffic stop, Officer Driscoll was administering field sobriety tests to the driver and there were three passengers inside of the stopped vehicle. After arresting the driver for DUI, Driscoll searched the vehicle while Schnizlein observed the passengers, who were standing behind the vehicle. After completing his search of the vehicle, Driscoll had a conversation with the three passengers. Schnizlein was not party to that conversation. After Driscoll spoke to the passengers, they went back into the stopped vehicle and Driscoll had a conversation with Schnizlein. According to Schnizlein, Driscoll told him that he had informed the passengers that they could accept a courtesy ride to the police station and arrange transportation from there or they could call someone to pick them up at the scene of the traffic stop. Officer Schnizlein's understanding from his conversation with Driscoll was that the passengers could not make arrangements for someone to pick them up at the scene of the traffic stop and that they wanted to go to the police station. When Driscoll left with the driver, the three passengers remained in the stopped vehicle. At that point, Schnizlein requested that an additional officer come to the scene because the passengers were going to be transported to the police station. Schnizlein testified that it was department policy and procedure that anyone entering a squad car be frisked for weapons.
When Officer Carlson arrived, Schnizlein told the passengers that their ride was there and that they would be driven to the police station. Ultimately, Officer Carlson transported the Reese brothers and Schnizlein transported defendant. Schnizlein testified that he asked defendant if he possessed any weapons and then advised him that it was department policy to frisk for weapons before allowing him to ride in the squad car. Defendant said that he had no weapons. When Schnizlein asked defendant if he would submit to the pat-down search, defendant put his hands on the trunk of the car so that he could be searched. Schnizlein said that defendant complied with the pat-down search without objection. While patting down the outside of defendant's clothing, Schnizlein felt a bulge in defendant's left sleeve consistent with a weapon. When Schnizlein asked defendant what it was, defendant said that it was a handgun. Schnizlein recovered a loaded .25-caliber semiautomatic handgun from defendant's sleeve and placed defendant under arrest. Schnizlein insisted that the search was designed only to ensure officer safety during the trip to the station. Schnizlein said that defendant's attitude prior to the search was cooperative and polite. Schnizlein testified that the tow truck arrived about the time that he was conducting the pat-down search. Schnizlein never asked defendant if he wanted to be transported in the tow truck rather than being transported to the police station. Schnizlein testified that, prior to conducting the pat-down search, defendant was free to leave the scene of the traffic stop.
Following argument, the trial court asked the assistant State's Attorney to produce the statute, rule, or regulation that prohibits pedestrians on the interstate. The trial court continued the hearing for that purpose.
On the continued hearing date, the State produced some documents, but they are absent from the record. At the hearing, the State cited section 11--1010 of the Illinois Vehicle Code (Vehicle Code), which provides that "[a] pedestrian who is under the influence of alcohol or any drug to a degree which renders himself a hazard shall not walk or be upon a highway except on a sidewalk." 625 ILCS 5/11--1010 (West 2000). The State argued that section 11--1010 prohibited defendant from leaving the scene on foot, and therefore, the search incident to defendant's entry into the squad car was valid. The trial court rejected the argument, noting that there had been testimony only that defendant had failed a PBT and therefore was too intoxicated to drive, but no testimony that defendant was so intoxicated that he could not walk safely. The court stated, "[t]here's no evidence to show any other condition of the defendant that would have rendered him under the influence to a degree which renders himself a hazard upon the roadway."
The State orally moved to introduce additional testimony that defendant was too drunk to walk safely, and the court denied the motion. The court then entered a written order granting defendant's motion to quash the arrest and to suppress evidence. The trial court first determined that by nonverbal action, defendant did in fact consent to the search of his person. The trial court distinguished the facts in the present case from those in People v. Anthony, 198 Ill. 2d 194 (2001), where our supreme court found that the defendant's nonverbal acts constituted acquiescence to police authority rather than consent to be searched. The second issue the trial court addressed was whether the actions of the police placed defendant in a position where he had no choice but to accept a courtesy ride from the police. The trial court recognized the fact that defendant had failed a PBT, which indicated a blood-alcohol concentration over the legal driving limit. However, the trial court held that there was no evidence to support a conclusion that defendant was incapable of walking one mile to the Route 59 exit due to intoxication. The trial court determined that there is no law that prohibited defendant from doing so as long as he complied with section 11--1007 of the Vehicle Code (625 ILCS 5/11-1007 (West 2000)), which addresses pedestrians walking on highways. The trial court concluded:
"[W]ithout the defendant having been told that walking to the exit
was an option available to him he was placed in a position where he had no choice but to be transported by police vehicle and therefore had to consent to the search. If he had not consented he would not have been transported[;] if he had not been transported the police would not have allowed him to walk on the highway. The defendant was therefore in a catch 22 dilemma and had no choice but to consent to the search. As such the court finds that the search under the circumstances was improper and [the] motion [to] suppress is granted."
The State filed a written "Motion to Reconsider People's Motion to Reopen Proofs." The court denied the motion to reconsider, and the State filed a timely certificate of impairment and notice of appeal.
On appeal, the State argues that the trial court committed reversible error when it (1) granted defendant's motion to quash the arrest and suppress evidence, and (2) denied the State's motion to reopen proofs . Because we agree with the State's first argument, we need not address the second.
Generally, a trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. People v. Thomas, 198 Ill. 2d 103, 108 (2001). The reviewing court upholds the factual findings and witness credibility determinations of the trial court unless they are against the manifest weight of the evidence. People v. Gherna, 203 Ill. 2d 165, 175 (2003). If the reviewing court accepts the factual findings, it reviews de novo whether suppression is appropriate under those facts. Gherna, 203 Ill. 2d at 175.
Unreasonable searches and seizures are prohibited under the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, §6). Reasonableness in this context generally requires a warrant supported by probable cause. Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514 (1967). However, a search conducted with a defendant's voluntary consent but without a warrant does not violate the fourth amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 36 L. Ed. 2d 854, 860, 93 S. Ct. 2041, 2045 (1973). The voluntariness of the consent is a question of fact determined from the totality of the circumstances, and the State bears the burden of proving that the consent was truly voluntary. People v. Anthony, 198 Ill. 2d 194, 202 (2001).
We begin our analysis of the voluntariness of defendant's consent to the pat-down search of his person by noting our agreement with the trial court's apparent conclusion that defendant's nonverbal manifestation of his consent to the pat-down search was not involuntary. We refer to the trial court's conclusion as "apparent" because in its memorandum opinion, rather than specifically finding that the consent was voluntary, the trial court wrote only "that the defendant by his action did in fact consent to the search by the officer." For the following three reasons, we believe that the trial court meant that the consent was voluntary. First, in its memorandum opinion the trial court distinguished Anthony, where our supreme court held that the defendant's consent was involuntary (Anthony, 198 Ill. 2d at 203-04). Second, in ruling on the State's motion to reopen proofs and to reconsider, the trial court referred to defendant's consent as "consensual and valid." Third, when the trial court gave its decision on the motion to suppress it would have been unnecessary to proceed to the second issue, that is, whether the actions of the police placed defendant in a position where he had no choice but to accept a courtesy ride from the police, had the trial court not previously determined that the consent was voluntary. On appeal, defendant argues that his purported nonverbal consent to the pat-down search was an acquiescence to the officer's apparent authority to conduct the search and not voluntary consent.
In Anthony, Officer Jeff Barr observed the defendant exit a residence in which he knew that the defendant did not live. Anthony,198 Ill. 2d at 197. Officer Barr called to the defendant, " 'Excuse me sir. Can I talk to you for minute?' " Anthony,198 Ill. 2d at 198. The defendant stopped and allowed Officer Barr and his partner to approach. Anthony,198 Ill. 2d at 198. Officer Barr asked the defendant what he was doing in the area and who he knew at the residence from which he came. Anthony,198 Ill. 2d at 198. The defendant told Officer Barr that he was there visiting a female named Robbi. Anthony,198 Ill. 2d at 198. The defendant appeared nervous and repeatedly reached into his pants pockets. Anthony,198 Ill. 2d at 198. As a consequence, Officer Barr asked the defendant to please keep his hands out of his pockets for his and his partner's safety. Anthony,198 Ill. 2d at 198. The defendant complied, and Officer Barr asked him " 'if he had anything on him that he shouldn't have, anything like guns, drugs, knives, anything that could hurt [Barr] or [his] partner.' " Anthony,198 Ill. 2d at 198. The defendant said no. Anthony,198 Ill. 2d at 198. When Officer Barr asked the defendant if he would consent to a search of his person, the defendant spread his legs apart and put his hands on top of his head. Anthony,198 Ill. 2d at 198. The search that followed revealed that the defendant possessed a rock of cocaine. Anthony,198 Ill. 2d at 199. After recognizing that the voluntariness of consent is a question of fact determined from the totality of the circumstances (Anthony,198 Ill. 2d at 202), the court held that the State failed to prove that the defendant voluntarily consented to the search of his person (Anthony,198 Ill. 2d at 204). The court concluded that the defendant's nonverbal actions were ambiguous and that it could be inferred that the defendant "submitted and surrendered to what he viewed as the intimidating presence of an armed and uniformed police officer who had just asked a series of subtly and increasingly accusatory questions." Anthony,198 Ill. 2d at 203.
We believe that the Anthony decision is distinguishable on its facts from the case at bar and is not controlling. The officers' interaction with defendant and his companions was not investigatory or accusatory in nature. The clear purpose of the questions posed to the men was to determine if any of them could drive the stopped vehicle from the scene. The suggestions and directions given to the men concerned their departure from the scene and were in no way calculated to elicit incriminating responses. Moreover, defendant was informed in no uncertain terms that he would be permitted to leave the scene of the traffic stop and did not have to accept the officer's offer of a courtesy ride. As such, defendant's nonverbal acts manifesting his consent to the pat-down search could not be characterized as a mere acquiescence to authority.
The foregoing conclusion does not end our analysis. In granting defendant's motion to suppress, the trial court concluded that defendant had no other choice but to accept the courtesy ride and consent to the prerequisite pat-down search because the police did not offer defendant the option of departing from the scene on foot. As the trial court's holding recognized, a defendant's consent, albeit voluntary, can be tainted where it is the fruit of an illegal detention. People v. Brownlee, 186 Ill. 2d 501, 519 (1999), citing Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 229, 238-39, 103 S. Ct. 1319, 1326 (1983). Therefore, in analyzing this case it is crucial to identify the type of police-citizen encounter that was occurring at the time defendant gave his consent to the pat-down search.
Our supreme court has explained:
"There are, theoretically, three tiers of police-citizen
encounters. [Citation.] One tier involves an arrest of a citizen, which action must be supported by probable cause; otherwise, the fourth amendment prohibition against unreasonable seizures is violated. [Citation.] The next tier involves a so-called 'Terry' stop, a brief seizure that must be supported by a reasonable suspicion of criminal activity to be within acceptable fourth amendment boundaries. [Citation.] The last tier involves no coercion or detention and therefore does not involve a seizure. This tier is commonly known as the community caretaking function***." People v. Murray, 137 Ill. 2d 382, 387 (1990).
In this case defendant's encounter with the police shifted among the three tiers. First, there was a lawful Terry seizure when Officer Driscoll stopped the vehicle in which defendant was traveling for violations of the Vehicle Code. A passenger in a vehicle stopped by police is seized within the meaning of the fourth amendment. Whren v. United States, 517 U.S. 806, 809-10, 135 L. Ed. 2d 89, 95, 116 S. Ct. 1769, 1772 (1996). Therefore, defendant was lawfully seized and detained during the traffic stop.
When the traffic stop ended and Officer Driscoll turned his attention to getting the passengers safely home, the nature of the police-citizen encounter changed from a second-tier encounter to a third-tier encounter. The traffic stop ended when Officer Driscoll arrested the driver and concluded his search of the stopped vehicle. Once the traffic stop ended, defendant and the Reese brothers became stranded travelers on the roadside and Officer Driscoll's focus shifted from enforcing the Vehicle Code to discharging his duty to protect the stranded passengers. Once his focus shifted, Officer Driscoll's actions involved no coercion, detention, or criminal investigation. We conclude that the interaction between the stranded travelers and Officer Driscoll became a third-tier consensual encounter by applying the well-settled rule that a seizure occurs "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16 (1968). In determining whether a fourth amendment seizure has occurred, it must be determined whether "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). At the beginning of the police-citizen encounter that followed the traffic stop, defendant was free to leave the roadside by any lawful means. Even before the driver was removed from the scene due to his arrest for DUI, defendant and the Reese brothers were told in the most positive manner that they were free to call someone on a cellular telephone and make arrangements to be picked up at the scene, or they could accept a courtesy ride to the police station and arrange for transportation from that location. A reasonable person so instructed would have believed that he was free to leave.
As explained below, the fact that defendant did not leave the roadside at this point in the encounter was the result of circumstances independent of police conduct and, therefore, there could be no fourth amendment seizure. See People v. Sellars, 93 Ill. App. 3d 744, 748 (1981), citing Burdeau v. McDowell, 256 U.S. 465, 475, 65 L. Ed. 1048, 1051, 41 S. Ct. 574, 576 (1921) (it is well established that without some government action the fourth amendment is not implicated).
The driver of the vehicle in which defendant was traveling was arrested for driving under the influence of alcohol and obviously could not assist defendant in leaving the scene of the traffic stop. The driver's decision to operate a vehicle in an impaired condition and defendant's decision to travel with such a driver were clearly their own and were circumstances independent of police conduct. Defendant and the Reese brothers were unable to depart in the vehicle in which they arrived because the men were incapable of driving the vehicle. One Reese brother lacked a valid driver's license while defendant and the other Reese brother took PBTs indicating that their breath-alcohol concentrations were in excess of the legal limit to operate a motor vehicle. Clearly, their inability to drive away in the vehicle in which they arrived was the result of their own actions and not the result of any police conduct.
The fact that defendant and the Reese brothers were unable to make arrangements to have someone pick them up at the roadside was also a circumstance independent of police conduct. Defendant and his companions did not successfully follow Officer Driscoll's gratuitous suggestion that they use their cellular telephone to make arrangements to be picked up. We can only speculate as to why these stranded travelers were unable to avail themselves of this lawful means of leaving the roadside. Perhaps their decision to travel at 3:30 a.m. contributed to their lack of success, and it is possible that the men were without the necessary funds to hire a taxi cab to retrieve them from the roadside. Also, the option that defendant and his companions could have sought a ride in the tow truck, although not suggested by the officers, was a possibility that did not occur to the men or perhaps was discounted based on a prediction that they would not all fit in the tow truck. In any event, the circumstances that caused defendant not to leave the roadside in a vehicle other than the one in which he arrived were independent of any police conduct.
It is true that at some point during this consensual third-tier encounter, defendant's freedom of movement became restricted. Specifically, this occurred when defendant and his companions were unsuccessful in arranging for someone to pick them up at the roadside. At that point defendant's freedom of movement was restricted, at least in part, by Officer Driscoll prohibiting defendant and his companions from driving the vehicle in which they arrived and by Driscoll not offering defendant the option of departing on foot. This case turns on ...