Appeal from the Circuit Court of Effingham County. No. 09-CF-212 Honorable Sherri L. E. Tungate, Judge, presiding.
The opinion of the court was delivered by: Justice Stewart
Motion to publish granted
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Donovan and Justice Spomer concurred in the judgment and opinion.
¶ 1 The defendant, Stanley Wofford, was charged with unlawful possession of a weapon by a felon, possession of a weapon with a defaced serial number, and unlawful possession with intent to deliver a controlled substance. He filed a motion to suppress evidence and statements, which the court granted on March 16, 2010. The State filed a certificate of substantial impairment and a timely notice of appeal. We reverse and remand.
¶ 3 The evidence introduced at the hearing on the motion to suppress can be summarized as follows. On October 16, 2009, Trooper Mark Flack, who had been an Illinois State Police officer for over nine years and a canine handler for two years, was on patrol in his squad car. His canine, Rohdee, was riding in the squad car with him, in a kennel in the back seat. While traveling southbound on Interstate 57, Trooper Flack noticed a green Nissan automobile that he believed was committing a "fatal five violation" by following too closely behind a camper trailer. He explained that a fatal five violation is one the Illinois State Police have determined to be one of the top five traffic violations leading to fatal crashes. When Trooper Flack first noticed the Nissan, he was in the left lane several hundred feet behind the Nissan, which was in the right lane behind a camper trailer.
¶ 4 Trooper Flack explained that he determined that the Nissan, a compact car, was following the camper trailer at less than a one-second interval by using the dotted lines on the highway as a reference point. He stated that he chose a dotted line, and when the front vehicle, the camper trailer, reached that dotted line, he began "counting one thousand one, one thousand two." He typically performs this test several times. Trooper Flack noted that he does not try to measure the distance between the vehicles but only the time interval based on his use of a single dotted line as a reference point. He explained that he begins counting when the rear of the lead vehicle reaches the dotted line and stops when the front of the following vehicle reaches that point.
¶ 5 After observing the two vehicles, Trooper Flack concluded that the Nissan was following the camper trailer at less than a one-second interval, which is less than the two-second interval recommended by the Illinois Rules of the Road. He follows the guideline of the Rules of the Road because the statute that prohibits following too closely specifies only that a driver should not follow closer than what is reasonable or prudent, which "leaves it open to interpretation." See 625 ILCS 5/11-710(a) (West 2008) ("The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.").
¶ 6 Trooper Flack decided to initiate the traffic stop after observing the Nissan traveling well over a half mile at a less than one-second interval behind the camper trailer. He noted that the camper trailer was wider than most other vehicles, which made it more difficult for its driver to see other vehicles in the rear-view or side-view mirrors, especially those following too closely behind. After he decided to stop the Nissan, he called in the traffic stop to his dispatcher and then activated the overhead lights on his squad car. He testified that the camera in his squad car runs continuously, but, when he activates his overhead lights, that initiates the digital recording, which actually begins approximately one minute before the lights are activated. The defendant introduced the digital recording of the traffic stop into evidence for the court's review.
¶ 7 The recording shows Trooper Flack in his squad car in the left lane of the interstate and the vehicle the defendant was driving in the right lane directly behind a camper trailer. At one minute and eight seconds into the tape, Trooper Flack activated the overhead lights on his squad car, and the Nissan began to pull onto the shoulder of the highway. When the Nissan completed its stop, Trooper Flack exited the squad car and talked to the defendant through the passenger window of the vehicle. The defendant did not have any passengers in his car. Trooper Flack told the defendant that he had been following too closely behind the camper trailer, which is a fatal five violation, and that he intended to give the defendant a warning ticket. He testified that he noticed that the defendant's eyes were red and glassy but did not see any weapons or anything else that would pose a threat inside the car. He did not smell cannabis and did not see any open alcohol containers, illegal drugs, or drug paraphernalia. Trooper Flack asked the defendant for his driver's license, registration, and proof of insurance, and he asked the defendant to get out of his car and sit in the front seat of the squad car while he gathered the defendant's information and wrote the warning ticket. The defendant exited his car about 31/2 minutes after the beginning of the digital recording.
¶ 8 While Trooper Flack was checking the defendant's information and writing the warning ticket, the defendant asked him if he was "messing" with him because he is a black man, which Trooper Flack denied. The trooper explained again that following too closely was a fatal five violation, that the defendant should have known how dangerous it was because he was employed as a truck driver, and that the defendant's race had nothing to do with the traffic stop. The trooper reiterated that he had stopped the defendant for following less than one second behind the camper trailer. Trooper Flack also asked the defendant a few questions about where he was traveling to. While the trooper was talking with the defendant, the dispatcher was providing information over the radio about the defendant's record. The defendant explained that he was following unusually close behind the camper trailer because he had just pulled in behind it. Trooper Flack told the defendant again that he was only writing a warning ticket for the offense.
¶ 9 Trooper Flack testified that he ran a driver's license check on the computer in his squad car. He received information that the defendant had a valid driver's license and an FBI number. Because the defendant had an FBI number, he also ran a criminal history background check. After 7 minutes and 50 seconds had elapsed on the recording, Trooper Flack asked the defendant about his arrest record. The defendant told him that he had been arrested for fighting and second-degree murder 12 years earlier. At approximately 8 minutes and 50 seconds into the recording, Trooper Flack asked the dispatcher to run the defendant's FBI number, and then at about 91/2 minutes, he called back to tell the dispatcher that he had made a mistake on the FBI number and gave her the correct number. After about 10 minutes, Trooper Flack asked the defendant if he had ever been arrested for an offense involving marijuana, and the defendant said that he did not even smoke marijuana. Trooper Flack then requested the defendant to lean his head back and close his eyes. Trooper Flack testified that he observed tremors in the defendant's eyes which indicated recent marijuana usage. After 11 minutes and 40 seconds had elapsed on the recording, Trooper Flack asked the defendant again if he smoked at all, and when the defendant denied any smoking, he told the defendant that his eyes were telling a different story.
¶ 10 Trooper Flack testified that, in March 2009, he had completed a DUI cannabis course in which he learned that tremors in a person's upper eyelids are one indicator of recent cannabis use. He stated that, in his career, he had observed hundreds of people impaired by cannabis use and that different people indicated cannabis impairment in different ways. He considered the fact that the defendant was following the camper trailer with less than a ...