Appeal from the Circuit Court of Lake County. No. 03-DT-118. Honorable Thomas R. Smoker, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Defendant, Patrick Minx, was arrested for driving under the influence of alcohol (DUI) and his driving privileges were summarily suspended (cf. 625 ILCS 5/11--501.1 (West 2002)). Defendant petitioned to rescind the summary suspension and moved to quash his arrest and suppress evidence, arguing that he was stopped in violation of the fourth amendment (U.S. Const., amend. IV). The trial court granted the petition and the motion, and the Village of Mundelein (the Village) timely appealed. We affirm in part and dismiss in part.
First we must consider the scope of our jurisdiction. We have an independent duty to insure that jurisdiction is proper in both civil and criminal cases (People v. O'Connor, 313 Ill. App. 3d 134, 135 (2000)), and thus we address the issue of jurisdiction regardless of whether the parties raise it. In this case, the Village contends that we have jurisdiction over the appeal of the rescission of the summary suspension pursuant to Supreme Court Rule 303 (155 Ill. 2d R. 303) and the suppression order pursuant to Supreme Court Rule 604(a) (188 Ill. 2d R. 604(a)).
Supreme Court Rule 604(a) (1) provides:
"In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114--1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence." (Emphasis added.) 188 Ill. 2d R. 604(a)(1).
It is well settled that Rule 604(a)(1) applies only to the State and not to municipalities. Village of Cary v. Pavis, 171 Ill. App. 3d 1072 (1988). In this case, there is no doubt that the Village intended to prosecute under its local ordinance and not the corresponding section of the Illinois Vehicle Code (Code) (625 ILCS 5/11--501(a)(2) (West 2002)). The Village conceded this issue during oral argument before this court. Further, the citation issued to defendant supports the Village's concession. On the citation issued to defendant, the form has check boxes indicating various sections of the Code. Under this are two more check boxes, "ILCS" and "local ordinance." Next to the "local ordinance" box is a space for the local ordinance citation. The "local ordinance" box is checked, but there is no citation to any ordinance. The "ILCS" box is not checked. Because the Village's concession, along with the citation issued to defendant, shows an intent to prosecute under the municipal ordinance, we lack jurisdiction to consider the suppression order relating to the DUI. See Village of Mundelein v. Thompson, 341 Ill. App. 3d 842, 847 (2003).
The Village urges this court to overturn our decision in Village of Cary, 171 Ill. App. 3d 1072, and hold that "a municipality can appeal the trial court's order granting a motion to quash arrest and suppress evidence under Supreme Court Rule 604(a) when the underlying charge is written exclusively as a municipal violation." We decline. Only the supreme court can make rules governing interlocutory appeals, and we are constrained to follow these rules and the long string of cases interpreting Rule 604(a) as applying only to State and not municipal appeals. See Village of Maywood v. Houston, 10 Ill. 2d 117 (1956); Village of Park Forest v. Bragg, 38 Ill. 2d 225 (1967); Village of Mundelein v. Aaron, 112 Ill. App. 3d 134 (1983).
The Village also argues that this court has jurisdiction over the trial court's order regarding the municipal DUI prosecution because the Village has written permission from the State's Attorney to prosecute State Code violations. However, in this case, the Village was not prosecuting a State Code violation. Rather, the record and arguments reveal that the Village was prosecuting a violation of its own municipal ordinance mimicking the State Code. Thus, Village of Cary controls as to the appeal of the suppression order, and this court lacks jurisdiction over the appeal of that order. Therefore, we address only the trial court's order rescinding the summary suspension.
According to the record, an individual contacted the Mundelein police department on December 30, 2002, and said that defendant's car, a Mercury Marquis with registration number 3836, was "driving recklessly." The caller, who was driving behind defendant's car, was willing to sign a complaint. Officer Thomas Perdue was given this information and dispatched to the scene. He positioned his vehicle between the two cars and followed defendant, but he did not notice any erratic driving. Although Officer Perdue drove past the informant's car, he did not know the informant's identity, did not speak to him, and did not know what he looked like. Defendant turned into his driveway, parked, and began exiting his car. Officer Perdue pulled up behind defendant. He activated his emergency lights either at this moment or shortly before reaching the driveway. Defendant did not notice the police car until he had gotten out of his vehicle. At this point, he did not feel free to leave.
About two minutes after Officer Perdue stopped, another police car arrived at the scene. According to Officer Perdue, defendant failed all the field sobriety tests, smelled strongly of alcohol, and had bloodshot, glassy eyes. He refused to submit to a chemical test. Officer Perdue arrested defendant for DUI, and defendant's driving privileges were summarily suspended. Defendant petitioned to rescind the summary suspension and moved to quash his arrest and suppress evidence, challenging the propriety of the underlying stop. The trial court granted defendant's petition and motion. The Village appeals, arguing that (1) defendant was not seized because he stopped his vehicle before Officer Perdue exercised any show of authority and, alternatively, (2) the informant's tip gave Officer Perdue a lawful basis to conduct an investigatory stop.
Generally, a ruling on a petition to rescind a summary suspension will not be reversed unless it is manifestly erroneous. People v. Rush, 319 Ill. App. 3d 34, 38 (2001). However, where, as in this case, the relevant facts are undisputed, review of the ruling on the petition is de novo. People v. Granados, 332 Ill. App. 3d 860, 862-63 (2002).
The Village first argues that defendant was not seized. A particular encounter constitutes a seizure for fourth amendment purposes when, considering all the surrounding circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise end the encounter. People v. Brodack, 296 Ill. App. 3d 71, 75 (1998). Additionally, either the police must use physical force or the defendant must submit to the assertion of police authority. Village of Mundelein v. Thompson, 341 Ill. App. 3d 842, 848-49 (2003).
The Village cites People v. Scott, 249 Ill. App. 3d 597 (1993). There, an anonymous citizen approached two police officers and said that an apparently intoxicated individual had just driven away in a brown pickup truck. One officer drove in the direction indicated by the citizen and saw a brown pickup truck. He did not see the driver, the defendant, commit any traffic violations. The defendant pulled into a private driveway, and the officer pulled up behind him. The defendant exited the truck and staggered toward the squad car. The defendant swayed while he was standing, his breath smelled of alcohol, and he had slurred speech and bloodshot eyes. The officer arrested him for DUI and driving while his license was revoked. Scott, 249 Ill. App. 3d at 599. The trial court granted the defendant's petition to rescind the summary suspension of his driver's license and his motion to quash his arrest, ruling that the defendant was improperly seized. This court reversed and remanded the cause, holding that the defendant had not been seized. We stated, "[t]he record ...