23 Order Filed: October 18, 2016
to Publish Granted: January 5, 2017
from the Circuit Court of Marion County, No. 15-DT-03
Honorable Mark W. Stedelin, Judge, presiding.
Attorneys for Appellant Patrick Delfino, Director, David J.
Robinson, Acting Deputy Director, Jennifer Camden, Staff
Attorney, Office of the State's Attorneys Appellate
Prosecutor, Hon. Bill J. Milner, State's Attorney, Marion
Attorneys for Appellee Michael J. Pelletier, State Appellate
Defender, Ellen J. Curry, Deputy Defender, Elizabeth M.
Crotty, Assistant Appellate Defender, Office of the State
Appellate Defender, Fifth Judicial District
PRESIDING JUSTICE MOORE delivered the judgment of the court,
with opinion. Justice Chapman concurred in the judgment and
opinion. Justice Welch dissented, with opinion.
1 The plaintiff, the People of the State of Illinois (State),
appeals the April 13, 2015, order of the circuit court of
Marion County that granted the motion of the defendant,
Christopher Biagi, to suppress evidence and granted his
petition to rescind the statutory summary suspension (SSS) of
his driver's license. For the following reasons, we
3 On January 3, 2015, the defendant received a citation for
driving under the influence, pursuant to section 11-501 of
the Illinois Vehicle Code (625 ILCS 5/11-501 (West 2014)). A
confirmation of the SSS of the defendant's driving
privileges was entered in the circuit court on January 28,
2015. The defendant filed a petition to rescind the SSS and a
motion to suppress evidence on February 6, 2015, and February
24, 2015, respectively.
4 A hearing was conducted on April 1, 2015. Seth Williams
testified that he is employed as a trooper with the Illinois
State Police and has been so employed for over six years.
Besides basic field sobriety training, Williams completed
Advanced Roadside Impairment Driving Enforcement, a training
to execute field sobriety testing, to recognize the
indicators of drug impairment, and to learn about different
types of drugs and the correlating impairment that may be
shown when those drugs are used. Williams estimated that he
had conducted approximately 50 stops that involved drug
impairment with no alcohol involved.
5 Williams recalled that on January 3, 2015, at 12:44 a.m.,
he was on duty and patrolling Red Stripe Road, which is
covered with oil and chip and has no lane markings. Williams
testified that while traveling eastbound, he noticed a
vehicle ahead of him that was traveling the same direction.
He noted that there were no other vehicles on the road other
than his and the one in question. Williams stated that the
speed limit on Red Stripe Road is 55 miles per hour and the
subject vehicle was traveling 32 miles per hour.
6 Williams testified that he did not activate his headlights
to initiate a stop, but the vehicle ahead of him continued to
decrease its speed, partially pulled onto the shoulder, and
came to a stop at the top of a hill. Williams explained that
the shoulder along Red Stripe Road is "pretty much
nonexistent" and because the subject vehicle was large,
it was parked on the shoulder only two or three feet, and the
rest of it extended into the roadway. Williams's first
inclination was to pass the vehicle, but he realized that he
was approaching the defendant's vehicle at the top of the
hill and would be unable to see any westbound traffic on the
other side of the hill. He indicated that there were two
driveways at the top of the hill, either of which the driver
could have pulled into but did not.
7 Williams then surmised that the driver-who was later
discovered to be the defendant- must be having car trouble
because of the slow speed and because "nobody would stop
at the top of the hill like that." Accordingly, Williams
notified dispatch that he was conducting a motorist assist,
pulled in and parked behind the vehicle, activated his
takedown lights to illuminate the area in front of him, and
activated his rear-facing emergency lights to divert any
traffic that may approach from behind. Williams explained
that the takedown lights are bright LED lights-also known as
fog lights-that point to the front and light up a large span
of area. He indicated that he used them only so he could see
as he approached the vehicle and that the defendant was free
to pull away and leave up to the time when he made contact
8 Williams testified that he approached the defendant and
asked him what was wrong. The defendant replied, "Good
afternoon, " and handed Williams his driver's
license and insurance card. Williams indicated that he found
the defendant's statement extremely odd, given the time
was 12:44 a.m. and it was unmistakably dark outside. Williams
noted that the defendant's speech was slow, he appeared
slumped in his seat, and his movements were "extremely
slow and delayed for an appropriate individual." He also
noticed that the defendant's "pants were unbuttoned
about half way down his thighs, " which he also found
very unusual. Williams testified that at that point, he no
longer deemed the situation a "motorist assist, "
but now saw it as a traffic stop under investigation for
driving under the influence of some form of drugs, as there
was no detectable smell of alcohol.
9 Williams testified that the defendant informed him that he
and his passenger were just out driving around and he had
pulled over because "he didn't want to be pushed,
" meaning that he was traveling slower than Williams and
he wanted to get out of the way. Williams testified that the
defendant already had his driver's license out and
offered it to Williams, who returned to his squad car with
the driver's license. After confirming the validity of
the license, Williams returned and asked the defendant to
step out of the vehicle. He also obtained identification from
the defendant's passenger, who turned out to be the
defendant's wife. Williams testified that as the
defendant stepped out of the vehicle, his movements were slow
and methodical. Meanwhile, an assisting officer arrived on
the scene, and Williams moved his car to the front of the
defendant's vehicle because he needed a flat surface to
conduct field sobriety tests.
10 Prior to administering a horizontal gaze nystagmus test,
Williams shined his flashlight on the defendant's face.
Upon doing so, Williams noticed the defendant's pupils
were dilated. Williams explained that normal pupil range in
darkness is six millimeters or less and he quickly noticed
that the defendant's pupils were much larger than that,
an estimated seven to seven-and-a-half millimeters. Williams
added that the defendant's pupils did not change when the
flashlight was shined in his face, but remained dilated.
Williams asked the defendant if he had consumed any form of
illegal narcotics or prescription medication, and the
defendant replied that he had not. Notwithstanding the
defendant's response, at the conclusion of the field
sobriety tests, Williams believed that he was under the
influence of something.
11 In addition to the horizontal gaze nystagmus test, the
defendant performed the walk-and-turn and the one-leg stand,
his performance on both of which Williams described as
"extremely bad." Williams asked the defendant's
wife if the defendant had consumed any form of narcotic or
prescription medication, and she stated that he had not, but
that he had "been up for quite a while and was
tired." Williams in turn asked the defendant about being
tired and the defendant responded that he had been awake
since New Year's Eve, which was approximately 48 hours
prior. The defendant added that "I stay up for long
periods and then I relax." The defendant's statement
alerted Williams to the possibility of amphetamine abuse,
with which Williams is quite familiar.
12 Williams testified that he arrested the defendant for
driving under the influence based on his observations of the
defendant and the defendant's performance of the field
sobriety tests. Williams then searched the defendant incident
to arrest and found an orange, 20 milligram amphetamine salt
pill in the defendant's front pocket. He also found two
other pills that he was unable to identify.
13 Andrew Smith testified that he is employed as a trooper
with the Illinois State Police and has been so employed for
four years. Smith was on duty and patrolling in Marion County
on January 3, 2015. At approximately 12:50 a.m., Smith was
dispatched to the scene to assist Williams. He confirmed that
when he arrived, the defendant and Williams were parked on a
hill and the defendant had already stepped out of his vehicle
and was talking to Williams. Smith noticed that the defendant
"seemed to be having a hard time focusing on the
directions that Trooper Williams was instructing him on.
Almost as if he was struggling for him to focus
[sic]." Smith explained that "he almost
had a sense of being paranoid with quick movements of the
head and looking around, eyes darting back and forth."
Like Williams, Smith did not smell any alcohol on the
defendant. Smith testified that he had completed standard
field sobriety test training as well as advanced impaired
driver enforcement, which involves DUI drug enforcement.
Smith concluded that the defendant was under the influence of
something, based on the fact that his ability to comprehend
instructions was "definitely out of the ordinary."
14 At the close of evidence, the circuit court took the
matter under advisement and entered an order on April 13,
2015, that granted both the motion to suppress evidence and
the petition to rescind the SSS. The State filed a motion to
reconsider on May 13, 2015, which the circuit court denied on
June 17, 2015, following a hearing. The State filed a notice
of appeal on June 17, 2015, and filed a certificate of
impairment on June 18, 2015. Additional facts will be added
as necessary in our analysis of the issues.
16 The State raises the following issues on appeal: (1)
whether the circuit court erred by granting the
defendant's motion to suppress evidence and (2) whether
the circuit court erred by granting the defendant's
petition to rescind the SSS of his driver's license.
17 I. Motion to Suppress Evidence
18 A. Standard of Review
19 "In reviewing a trial court's ruling on a motion
to suppress evidence, we apply the two-part standard of
review adopted by the Supreme Court in Ornelas v. United
States [citation]." People v. Luedemann,
222 Ill.2d 530, 542 (2006). "[W]e give great deference
to the trial court's factual findings, and we will
reverse those findings only if they are against the manifest
weight of the evidence." Id. "A reviewing
court, however, remains free to undertake its own assessment
of the facts in relation to the issues and may draw its own
conclusions when deciding what relief should be
granted." Id. "Accordingly, we review
de novo the trial court's ultimate legal ruling
as to whether suppression is warranted." Id.
20 B. State's Concession in the Circuit Court
21 As a threshold matter, we note that the State acknowledged
in its opening brief that it conceded in its motion to
reconsider that the interaction between Williams and the
defendant was not a consensual encounter, but a community
caretaking stop. The State additionally conceded that
Williams's activation of the steady white lights on his
patrol car was a seizure. Notwithstanding these concessions
in the circuit court, the State now argues on appeal that the
interaction between Williams and the defendant was consensual
and not a detention at all, thereby rendering inapplicable
any fourth amendment implications.
22 The defendant argues that the State is estopped from
asserting this argument on appeal because of the concessions
it made below. We reject this argument because a reviewing
court is not bound by a party's concession. See
People v. Horrell, 235 Ill.2d 235, 241 (2009).