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People v. Butorac

Court of Appeals of Illinois, Second District

December 27, 2013

TIMOTHY S. BUTORAC, Defendant-Appellant.

Held [*]

The warrantless and suspicionless stop of defendant’s boat by conservation officers pursuant to a regular and systematic operation of stopping every boat the officers saw to check the boaters’ registration and safety equipment resulted in a minimal intrusion into their activities, and there was no indication that the officers were acting arbitrarily or with unbridled discretion; therefore, the trial court did not err in denying defendant’s motion to quash his arrest and suppress the evidence that led to his conviction for operating a watercraft while under the influence of alcohol or his motion to reconsider, notwithstanding the fact that defendant made a prima facie case of an unreasonable seizure, since the State countered defendant’s prima facie case with evidence that neither a “waterway roadblock” nor a fixed checkpoint was a viable alternative under the circumstances of the waterway where defendant was boating and the minimal intrusion by the officers was outweighed by the State’s interest in promoting safe boating.

Appeal from the Circuit Court of Kane County, No. 10-CV-138; the Hon. Bruce W. Lester, Judge, presiding.

Thomas A. Lilien and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M. Bauer and Kathryn E. Kohls, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Justice Schostok concurred in the judgment and opinion.



¶1 Defendant was convicted of operating a watercraft while under the influence of alcohol (625 ILCS 45/5-16(A)(1)(b) (West 2010)). He was convicted of that offense after officers stopped his boat pursuant to section 2-2(a) of the Boat Registration and Safety Act (Act) (625 ILCS 45/2-2(a) (West 2010)), which permitted the officers to "board and inspect any boat at any time" to determine if the Act was being complied with. On appeal, defendant argues that the trial court should have granted his motion to quash his arrest and suppress evidence because the stop of his boat was unconstitutional. Before the trial court and in his briefs on appeal, defendant pursued both facial and as-applied challenges to section 2-2(a) of the Act. At oral argument, however, defendant withdrew his facial challenge. As a result, the only issue before us is whether section 2-2(a), as applied to defendant in this case, is unconstitutional. Because we conclude that the State's interest in promoting the safety of persons and property in connection with boating outweighed the minimal intrusion occasioned by the officers' stop of defendant's boat, we affirm the trial court's judgment.


¶3 The procedural history of this case is unusual. Defendant's motion to quash his arrest and suppress evidence advanced nothing substantive in support of his as-applied challenge to section 2-2(a) of the Act. The body of the motion consisted entirely of a facial challenge to the constitutionality of section 2-2(a). At the conclusion of the motion, defendant simply asserted that section 2-2(a) was also unconstitutional as applied to him, with no supporting analysis.

¶4 We do not have a transcript of the hearing on defendant's motion. The parties have supplemented the record, however, with an "Agreed Statement of Facts for Motion to Quash, " in accordance with Illinois Supreme Court Rule 323(d) (eff. Dec. 13, 2005). It indicates that the parties stipulated to the following facts for purposes of defendant's motion: (1) Illinois Conservation Police officers Eric Schreiber and Keith Siedsma stopped defendant's boat on the Fox River pursuant solely to section 2-2(a) of the Act; (2) the Fox River is not connected to any lakes, seas, or oceans; and (3) defendant had been doing nothing suspicious at the time. The agreed statement of facts further indicates that the oral argument at the hearing on defendant's motion related to defendant's facial challenge to the statute's constitutionality. According to the agreed statement of facts, the trial court denied defendant's motion, making no findings pertinent to an as-applied challenge to the statute.

¶5 Defendant then filed a motion to reconsider. In his motion, for the first time, defendant included significant argument in support of his as-applied challenge. In arguing that the statute was unconstitutional as applied to him, he relied on the stipulated facts from the hearing on his motion to quash and suppress. The State offered no additional evidence in response to defendant's motion to reconsider. The trial court denied the motion to reconsider, finding that there had been "no showing to overcome constitutionality of this statute" and that there was a "superior state interest in keeping state waterways safe."

¶6 Pertinent to the issue on appeal, Officers Siedsma and Schreiber testified at trial as follows. On the afternoon and evening of July 9, 2010, they were on duty on an unmarked, 14-foot boat on the Fox River. It was a small boat with a tiller-operated motor. The officers testified that the "St. Charles Pool, " the stretch where they were working, is located between two dams and is approximately 200 yards wide. It is "one of the more heavily populated areas for boating" and has "a lot of boat traffic." One dam is located in St. Charles and the other dam is located in South Elgin. There were no "lane lines" or "buoy markers" on that portion of the river. Officer Siedsma described their duties as "boat patrol"; Officer Schreiber used the term "routine boat patrol." Officer Siedsma elaborated on what he meant by "boat patrol":

"Under the provisions of the Boat Safety Act, we are out enforcing boat laws, boat safety laws.
We check for valid registration and boat safety equipment.
So we stop vessels and check for life jackets, what we call personal flotation devices, fire extinguishers, sounding devices, or a horn or a whistle, valid registration. Those are the main things that we look for."

Officer Schreiber testified similarly: "[W]e were conducting safety inspections based upon whether they have life jackets, a workable U.S. Coast Guard approved fire extinguisher, a horn or whistle and registration." The officers were in uniform. Schreiber described the uniform as consisting of an identifiable shirt, pants, black work boots, a hat with a star emblem representing law enforcement, and a life jacket with a star on it.

¶7 The officers put their boat in the water at around 2 p.m. and stopped every boat they saw to check for registration and safety equipment, inspecting 20 to 25 boats before they stopped defendant's boat. At about 6:45 p.m., as their boat was stationary about a quarter-mile north of the Boy Scout Island boat ramp, the officers saw defendant's boat approach from the north. He was steering and David Yeomans was on board. The officers headed north, pulled up alongside defendant's boat, and stopped it. Officer Schreiber testified that the officers stopped defendant's boat because they had neither seen nor stopped the boat previously that evening. Because the officers' boat did not have a siren, they hailed the boat by hand. According to Officer Schreiber, they would hail a boat by pulling up very close to the boat, identifying themselves as conservation officers, and asking the operator of the boat to put his boat in neutral. The officers identified themselves as conservation officers to defendant. The officers then asked to see defendant's safety equipment and registration, which he gave them permission to check. The officers did not board defendant's boat, and defendant was able to show the officers the requested items "pretty much from where he was seated." Defendant was "very friendly" and "was joking, he was happy the whole time." After the officers had checked defendant's safety equipment, they noticed numerous empty alcoholic-beverage bottles and that defendant had glassy, bloodshot eyes and slurred speech. The officers tested defendant for sobriety and then arrested him.

¶8 Yeomans, defendant's passenger, testified that he and defendant put their boat in the water around 11:30 a.m. or 12 p.m. They were "cruising around like you do on the river." They went to "the sandbar" where people would anchor their boats and congregate to "play football and such." At some point, they left the sandbar to pick up a friend from Boy Scout Island. It took about 5 to 10 minutes to get there. On the way, "two guys on a boat waved [them] down" and Yeomans and defendant "stopped and realized they were uniformed DNR [Department of Natural Resources] officers." According to Yeomans, they were only "yards away" from Boy Scout Island when the officers stopped their boat. During the officers' interactions with defendant, they "were joking around with him[, ] kind of like they were buddies with him or something." Defendant "was real cooperative and just doing all the things they were asking him to do." As pertinent here, the remainder of Yeomans' testimony was consistent with the officers' testimony.

¶9 Defendant was convicted and timely appeals.


¶11 On appeal, defendant's argument essentially is that the officers' seizure of his boat constituted a "waterway roadblock" akin to the types of motor-vehicle roadblocks that have been deemed to violate the fourth amendment. He concedes that section 2-2(a) of the Act authorized the seizure but contends that the officers acted with "unbridled discretion" and should have employed measures like those required for motor-vehicle roadblocks.[1]

¶12 Before reaching the merits of defendant's argument, it is important to clearly outline the standards guiding our review, especially in light of the unusual procedural history of this case. In considering an as-applied challenge to a search or seizure authorized by statute, the question is not whether the search or seizure was authorized by statute but, rather, whether the search or seizure was reasonable under general fourth amendment principles given the particular facts of the case. See Sibron v. New York, 392 U.S. 40, 61 (1968) (" 'Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.' " (quoting Cooper v. California, 386 U.S. 58, 61 (1967))); see also United States v. Cartwright, 630 F.3d 610, 614 (7th Cir. 2010) ("The existence of a police policy, city ordinance, or state law alone does not render a particular search or seizure reasonable or otherwise immune from scrutiny under the Fourth Amendment."). An as-applied challenge to a search or seizure authorized by statute is distinguishable in this respect from a facial challenge to the statute, which requires a defendant to "fulfill the difficult task of establishing the statute's invalidity under any set of facts." (Emphasis in original.) People v. Garvin, 219 Ill.2d 104, 117 (2006).

¶13 At the hearing on a defendant's motion to suppress, the defendant bears the burden of establishing that the challenged search or seizure was unconstitutional and that the evidence obtained as a result should be suppressed. See 725 ILCS 5/114-12(b) (West 2010). Under Illinois law, a defendant makes out a prima facie case that a warrantless search or seizure was unreasonable by proving that he was doing nothing unusual to justify the intrusion. People v. Liekis, 2012 IL App (2d) 100774, ¶20. This is consistent with the well-established principle that warrantless searches and seizures are considered per se unreasonable, unless they fall within one of several specific, well-delineated exceptions. Illinois v. McArthur, 531 U.S. 326');"> 531 U.S. 326, 330 (2001); People v. Stehman, 203 Ill.2d 26, 34 (2002). Once a defendant has made out a prima facie case, the burden of production shifts to the State to come forward with ...

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