Appeal from the Circuit Court of Lake County No. 09-CM-2933. Honorable John J. Scully, Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion.
Justice Zenoff concurred in the judgment and opinion.
Justice Bowman dissented, with opinion.
Defendant, Ashley K. Nash, was driving her car with a teenager and a small child riding as passengers. A police officer, Nathan Hucker of the Zion police department, stopped the car because defendant was not wearing her seat belt. See 625 ILCS 5/12-603.1(a) (West 2008). The officer determined that defendant's driving privileges had been suspended, and defendant could not produce an insurance card. Defendant was arrested, handcuffed, and placed in the backseat of the squad car. While waiting for a tow truck to impound the vehicle, the officer conducted an inventory search and found under the driver's seat evidence that caused defendant to be charged with attempted unlawful possession of a controlled substance. See 720 ILCS 570/402(c) (West 2008); 720 ILCS 5/8-4(a) (West 2008).
Defendant moved to suppress the evidence on the ground that, when the vehicle was searched, the officer did not have a reasonable suspicion that there was evidence that needed to be preserved in connection with the offense of driving with a suspended license. The trial court granted the motion, and the State appeals. The State argues that defendant's suspended license and her inability to show proof of insurance at the time of the stop meant that her car could not be driven legally, and therefore the inventory search that disclosed the contraband was reasonable under the fourth amendment. Defendant responds that the vehicle did not need to be impounded, because the officer did not ask the teenage passenger whether she (1) had a valid driver's license, (2) could produce proof that the car was insured, and (3) was willing to take possession of the car. We reverse the suppression order and remand the cause for further proceedings.
On June 10, 2009, defendant was charged with attempted unlawful possession of a controlled substance in that defendant, with the intent to commit the offense of unlawful possession of a controlled substance, performed a substantial step toward the commission of that offense. The charge alleged that defendant possessed an object that contained methylenedioxymethamphetamine (MDMA), also known as ecstasy, which is a controlled substance. See 720 ILCS 570/402(c) (West 2008); 720 ILCS 5/8-4(a) (West 2008).
On June 19, 2009, defendant moved to suppress the evidence. Defendant conceded that the seat belt violation was a valid basis for the traffic stop. However, defendant asserted that, once she was arrested and placed in the backseat of the squad car, the officer did not have a reasonable suspicion that there was evidence that needed to be preserved in connection with the offense of driving with a suspended license.
At the hearing on the motion to suppress, Hucker testified to the traffic stop. On May 21, 2009, Hucker stopped defendant for driving while not wearing her seat belt. See 625 ILCS 5/12-603.1(a) (West 2008). Defendant pulled over and parked in front of a house in a residential area. The car was not blocking traffic or a driveway. Defendant had two passengers, a small child and a teenage female.
Hucker asked defendant for her driver's license and proof of insurance. Defendant told the officer that her license and insurance card were at home. Defendant provided her name, address, and date of birth. A license check established that defendant's driving privileges had been suspended. The home address that defendant provided was about four blocks from the location of the stop.
Another officer arrived, and Hucker directed defendant to walk to the rear of her vehicle. Hucker handcuffed defendant and told her that she was under arrest. Hucker led defendant to the front of his squad car, performed a quick patdown with the back of his hand, and placed her in the backseat of his squad car. Meanwhile, the other officer watched the teenage passenger, whom Hucker believed to be defendant's daughter or niece, and the small child. Defense counsel asked Hucker whether the teenage passenger could have been 16, 17, 18, or 19 years old, and Hucker answered "yes." The two passengers were allowed to leave and "sent on [their] way," but they waited near the scene for someone to give them a ride.
Hucker concluded that (1) defendant's driving privileges were suspended, (2) defendant could not provide proof that the car was insured, and (3) "there was no other available immediate driver to take the vehicle." Based on his assessment of the scene, Hucker summoned a tow truck to impound the vehicle. While waiting for the tow truck, Hucker began an inventory search of the vehicle, using a "vehicle tow report," which is a form used by Zion police officers. While defendant was in the backseat of the squad car and the two passengers stood nearby, the two officers filled out the tow report with defendant's information, the condition of the vehicle, and the property found inside. Under the driver's seat, Hucker found a half of a bright yellow tablet inside a small blue plastic bag. Based on his experience, Hucker suspected that the pill was ecstasy. On the tow report, Hucker checked boxes showing that the reasons for the tow were the narcotics seizure and the arrestee's control of the vehicle. Defendant was transported to the police station, where Hucker told her that he found a pill in her car.
Hucker testified that the Zion police department has guidelines for impounding a vehicle. An officer conducts an inventory search if the vehicle is impounded. The entire car is searched for any items of value, and the items are noted on the tow report to protect the defendant's property and to protect the department from false claims of loss. The search is not designed to discover narcotics or other kinds of contraband, but if the officer comes across something that looks like contraband, he investigates further. Hucker testified that the department guidelines are "oral and written" but not specified by ordinance.
Hucker testified that he did not bother to ask the teenage passenger if she could drive the car, because no one could operate the car legally if it was uninsured. Although defendant could not produce an insurance card, she told Hucker that the car was insured. Hucker did not ask for the name of the insurance company.
During argument, the parties stipulated that defendant's car was, in fact, insured at the time of the traffic stop. Defendant argued that the impoundment and inventory search were improper because (1) the car was legally parked and did not hinder traffic, (2) Hucker should have investigated whether the teenage passenger could have driven the car from the scene, and (3) the car actually was insured. The State responded that, at the time of the stop, Hucker had no affirmative duty to investigate defendant's undocumented claim that the car was insured or to ask the teenage passenger if she was eligible to drive the car from the scene. In fact, the State argued that defendant, not Hucker, had the burden of showing proof of insurance and that her failure to meet that burden created a presumption that the car was uninsured. According to the State, defendant's suspended license and the presumption of a lack of insurance required that the car be impounded.
The trial court agreed with defendant and suppressed the evidence. The court emphasized that, although there was no insurance card in defendant's vehicle, the car was, in fact, insured. The court found that, when the car was stopped, it was legally parked in a residential area. The court also found that there was evidence of a Zion police department oral policy that called for towing and impounding a vehicle when the driver lacks insurance and a valid driver's license, but that there was "no evidence" of a written policy or an ordinance.
The court found that the department's oral policy provided for no exceptions to towing, such as when proof of insurance "could be readily available," the car is parked legally, and the car could be removed by a passenger or someone else. The court found that, while there was "no evidence" that the teenage passenger was a licensed driver, she might have been licensed and the officer did not investigate the matter.
The trial court held that "there were alternative means here that were reasonable for the officer to have taken that would not violate the fourth amendment." The court emphasized that, before initiating the tow, Hucker should have determined whether the teenage passenger could produce a valid driver's license and "readily obtainable proof of insurance." The court noted that Hucker could have seized the car keys and locked the doors while the teenage passenger walked four blocks to defendant's home and retrieved the insurance card. Despite finding that Hucker acted in good faith and that defendant did not show proof of insurance at the scene, the court determined that the police should not have impounded and searched the car, because it was, in fact, insured.
The State moved for reconsideration of the suppression, and the trial court denied the motion on August 10, 2009. On the same date, the State timely filed a notice ...