Appeal from the Circuit Court of Du Page County. No. 09-DT-2819 Honorable William I. Ferguson, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.
¶ 1 The State appeals from an order of the circuit court of Du Page County granting the motion of defendant, Jerry Smulik, to quash his arrest for driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2008)) and to suppress evidence. We affirm.
¶ 2 At the hearing on his motion, defendant testified that on the evening of Friday, June 5, 2009, he dined with a friend, Kimberly Woodhall, at Volare's Restaurant. Defendant had two glasses of wine with dinner, and he left the restaurant at about 11:30 p.m. after having an argument with Woodhall. He drove to a bar called "Redstone," where he had a glass of wine. He ordered another glass of wine at Redstone, but did not finish it. After leaving Redstone, defendant drove to a gas station. He testified that he did not go there to purchase gasoline. Rather, he pulled into the gas station to "cool down a bit" from his argument with Woodhall. He parked in a marked space alongside the main building and carwash. After parking, he turned off the engine and had a cigarette. There were no vehicles parked in the other spaces alongside the building. Suddenly, he saw a police car's emergency lights behind him. Then he saw another police car to the left. The police car that had pulled in behind defendant's vehicle was about 15 feet away, and defendant "really couldn't back up." Two police officers-one male and one female-approached defendant and told him to get out of the vehicle.
¶ 3 Oakbrook Terrace police officer Victoria Johnson testified that on June 6, 2009, at about 12:30 a.m., she received a dispatch regarding "a possible DUI with a complainant following." Johnson was advised that the complainant had observed the subject drinking at Redstone and was concerned about him driving. The complainant thought that the subject was drunk. The complainant was following the subject-who was driving a silver Jeep-and she*fn1 relayed to police the vehicle's license plate number and location. Johnson located a vehicle fitting the description of the subject's vehicle at a gas station. There were three marked parking spaces by a carwash. The subject's vehicle was parked in the space farthest from the carwash and there were vehicles in the other two spaces. With her emergency lights activated, Johnson pulled into the gas station and parked at an angle behind the subject's vehicle. Johnson's vehicle was about seven feet away from the subject's, and she did not believe that her vehicle was positioned so as to block the subject's. Johnson approached the vehicle and discovered defendant seated inside it. The keys were in the ignition.
Defendant had bloodshot eyes and Johnson detected the odor of alcohol coming from him. When Johnson made contact with defendant, two other police officers had arrived, or were arriving, at the gas station in separate vehicles. After speaking with defendant, Johnson spoke with the complainant, who had followed defendant to the gas station. The complainant told Johnson that she had seen defendant drinking wine and vodka at the Volare Restaurant and then at Redstone. Johnson then returned to defendant's vehicle and, during the conversation that followed, defendant indicated that he had wine and "vodka grapefruit" at the Volare Restaurant. He had the same drinks at Redstone.
¶ 4 On appeal from a trial court's ruling on a motion to quash and suppress, the reviewing court "will accord great deference to the trial court's factual findings and will reverse those findings only if they are against the manifest weight of the evidence." People v. Close, 238 Ill. 2d 497, 504 (2010). However, the trial court's ultimate decision to grant or deny the motion is subject to de novo review. Id. A defendant moving to quash and suppress bears the burden of establishing a prima facie case that he or she was doing nothing unusual to justify the intrusion of a warrantless search or seizure. People v. Linley, 388 Ill. App. 3d 747, 749 (2009). "If the defendant makes the required showing, the burden shifts to the State to present evidence to justify the search or seizure." Id.
¶ 5 In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court held that the public interest in effective law enforcement makes it reasonable in some situations for law enforcement officers to temporarily detain and question individuals even though probable cause for an arrest is lacking. Terry authorizes a police officer to effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and articulable facts, that the person detained has committed or is about to commit a crime.
¶ 6 Initially, it is necessary to determine at what point a seizure occurred. We have observed:
"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. [Citation.] Additionally, either the police must use physical force or the defendant must submit to the assertion of police authority." Village of Mundelein v. Minx, 352 Ill. App. 3d 216, 219 (2004).
In City of Highland Park v. Lee, 291 Ill. App. 3d 48 (1997), we held that, when a police officer activates his or her emergency lights to curb a vehicle, a reasonable person in the driver's position would not feel free to decline the encounter with the officer. Id. at 54. In Minx we extended the rule to cases such as this one, where, with his or her vehicle's emergency lights activated, a police officer pulls up behind a parked vehicle. Minx, 352 Ill. App. 3d at 220; see also Lawson v. State, 707 A.2d 947, 951 (Md. Ct. Spec. App. 1998) ("Few, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain."). When Johnson pulled in behind defendant's vehicle with her own vehicle's emergency lights activated, defendant made no attempt to drive off. He therefore submitted to the encounter and was seized at that point. Minx, 352 Ill. App. 3d at 220 ("when [the defendant] noticed the emergency lights, he submitted to them and did not leave").
¶ 7 At the point at which the seizure occurred, Johnson had no personal knowledge of any facts suggesting that defendant was committing or was about to commit a crime. In Linley, we summarized the general principles that apply when a Terry stop is based on facts ...