the next case in our kahless morning his agenda number four case number one zero eight four five nine people in the state of illinois versus mark a close pleased the court my name is douglas sala barrel and i represent mark closed the defendant apple and the trial court was correct in granting mr close's motion a question suppress that their districts the court should be reversed because one the officer article suspicion necessary to justify initiating a traffic stop them are close to affirming the holding of the third district appellate court would provide for suspicious list stops of vehicles for inspections of permits and licenses and third raising of a statutory construction issued by the third district appellate court was improper in the state's attempt to raise such an argument for the first time before this court was also improper briefly the facts of this case are officer belsky with twelve years of law enforcement experience was on routine patrol on sunday june twenty fourth two thousand and seven and seven thirteen pm at that time he conducted a registration check on a pickup truck using his squad cars mobile  restricted driving kermit is not an element of the offense driving under a suspended or revoked license that is correct and it is is a matter of fact it is and that the element of any meter felony charge in the state of illinois that's correct however the fact that you a person has a restricted driving permit goes to the issue about whether a police officer has reason or typical suspicion to stop and conduct a further have to take a look at the facts and circumstances that the officer had at the time the fact if you take the their districts decision that being that they can stop a person to check their permit then you open up the door investigation reveals an police computer that guy driver's license or the license plate they see is assigned to a person who is on a drunk who has a suspended or revoked license would that give the police the opportunity to stop that driver i mean quite clearly if and when we talk about a breach that if in fact the police through their mobile data computer run a check find that the registered owner is in fact revoked and that in itself is sufficient for the police to conduct an investigative stop however that's not the facts this case in a further step is that when looks through his computer he finds out what that a person has a restricted driving permit is opposition is not unreasonable for the information that the in the terms of the i d p the also be available to the officer at that time this is basically the heart of this ok what is the stop being made for it has to be made for an actual charge that something other than you see whether or not a person is back and you can lawfully stop a person if you  reasonable suspicion to believe that he's committed a traffic violation that's correct but having a valid r d p is not a basis to be stopped to check the permit as secretary of state and i have done under stand th view the officer using his on a boat on board a mobile computer checks and finds that the individual is licensed is unlicensed finds out he has a restricted driving permit he's advised that restricted driving permits from monday through friday from eight am to five pm that doesn't appear it that information we believe in a search this court should be available to the officer to find out the need that the restriction on driving with you cannot drive with well i guess that's exactly an excellent question also i think taking the third district's case to its logical conclusion is that that also permits police officers to then the stop an individual soley for no reason other than to be able to see if they have their day corrective lenses and that is in permissible also because basically what we're doing is  in agreement with the officer and he has in his position by saying he here's why he does not have an r g p now no i'm not i'm not in in the pants in the officer's answer about that but i'd like to go and answer the one question about if you have a you're required to have on you at all time your driver's license taking it further that means every officer can stop every motorist without any basis whatsoever to see if they have in fact a possession this then leads to whatsoever that everyone who goes through this road say seche check will be checked to verify their driver's license insurance we were not there were in their seatbelt that's not the case here that we're seeing now is that the officers without any on their own they can just subjectively randomly without any is the secretary of state has the capability of one to tell the police one an individual has a license to they are revoked and three they have a restricted driving permit it's not a reasonable for the officer to know what the terms are again there are people that work at two o'clock in the morning i understand that there may be a likelihood that the majority people may not be working but still does not remove the situation that people could be driving under strict driving purposes for many purposes some of th situations they deal with people can receive restricted driving climate for work for medical care transportation to support meetings for education child care so a lot of other things are restricted driving permit can be used for life why wouldn't this be treated more as a seizure type vision were you know he does a check the licenses revoked it does a stop again back to the affirmative defense only in the context of the stop itself the driver says here's my permit you know i'm allowed to drive the officer lets him go and if the n e p detain him longer after that it's a seizure or at least a seizure analysis at that point but why should an officer not be entitle to stop someone when he sees that their license revoked and he has no other if other information well we said his license was revoked but in this case the office is also aware that he has a restricted driving chromic it wasn't a sunday yes it was sunday at about seven thirty pm but that time and date or i should say only factors this officer had in making the stock was the day the time and the clothing of the of the individual and that in of itself is insufficient to give the information that he had but did not know what the terms and conditions of his r d p were and like i said there are many reasons why the secretary of state another arm of the government that can provide licensing was is it like a terry stop it is a terry his feelings and i think that's correct i still think that there's that objective standard looking at what the facts of the case were the dress and the time of day we may disagree or agree that that raises a reasonable suspicion  the time the clothing's basically said it was a hunch guessing that on sunday at seven twelve seven pm a person would not normally be driving within the parameters of an r g p however the r d p can be issued for many different things for many purposes is not a reasonable that a person can be driving to work on sunday at seven o'clock or going to medical care or going to any type of court meetings and on that nature therefore it grants them an opportunity to have a restricted talking to them just a little bit is the command of the case that you would like us to issue that if that office is going to stop somebody for an r d p he has a half of specific information about that yes get in this case that seems to be true and in other states as as well massachusetts michigan even across the nation most courts take what's going on in support of the position  you have any any state i do not that i do not but i still think from you take a look at the factors in this case that when you talk about that we asked about those factors the officer takes into consideration i think there has to be more than unreasonable to assume that the police officers can just stop individuals on hunches to be able to check to see if they're in fact they're in compliance with a restricted driving permit when the technology is available to provide to be on for that or to look at an objective standard to look at just well i think it's always going to be have an objective standard but in this case officer did not have an deny exercise and you did have these these other factors that we we've talked about time of day i'm address and those are significant factors and granted a person could legitimately have a respected driving permit in one of these classes but it does we heard in the earlier argument there on the class correct considerably narrowed the class i think with time  but i still think you have to take a look at what this officer had in this particular case and he did not have a reason more to kill suspicion to stop mr close and he also take a look at the situation if you take the public or you could consider in our case how close was announced that he took those those things and making his opinion correct but if your objective lee in the case you can't consider him well i think that it's you can go see officer this question is at the officers time when he did it when you take a look at what the officer possessed his knowledge of the time based upon his experience believing that there may be some type of criminality that goes into it in this case there wasn't any indication based on his experience not knowing all the purposes of a restricted driving permit what they can be used for for different purposes that it may not be unreasonable to drive on a sunday at seven ten seven thirteen pm in this article of clothing the officer do not know whether or not he clothing his car whether he's coming from work going to work whether i just changed from work or go to work and put on certain closes so i don't believe that that is sufficient to stop an individual can we get back to where we started here you've just been addressed and i think the second heard you move the state that is the particular facts of this case as to whether what the officer had it is this was about i want disposal but i i want to go back to this affirmative defense you were greedy earlier in the questioning of a chief justice that the state does not have to rate i think that's not an element of driving with a license revoked right that's correct i think but let me just ask the question so you're holding the officer to something that the state wouldn't have to prove a trial right namely he has to go out and make sure there isn't a veil of her d p in place when he's aware of a driving with license revoked and he can't make the stuff you know it either if they don't have to it's something right to where we started but isn't it an affirmative defense for the defense to show and if such an if the state doesn't have to show it does the officer have to know in that situation little like justin jackson i mean to do know what happens person operating more of your time is license is revoked he says except with a valid id we have a valid id pete you never get to issue never be in trial arguing about an affirmative defense because the person is valid you know easily on  motion to a mostly we presume that what could happen in that case though is that the driver shows the officer the restricted driving permitted just the senate way that i probably this the second or the after aspect of what we believe should be addressed and that's the first aspect of that did the officer have as we talk about research it will suspicion even stop individual clearly if this court believes that you can stop an individual if the secretary of state or the driver finds out the person has a restricted zone license stop them inquire pon that but they were eroding the first prong of this and that is that the officer must have suspicion that the person is committing a crime the person's unlicensed or their goals unregistered i think that's pretty much the state of the law here so if situation is in this case the vehicle was registered there's no other indications of any cop or criminality donation is whether or not the individual is licensed the secretary of state's the one that is licenses the secretary of state is restricted driving permits a person after being you know for the purpose of the restricted driving permit is after the meet the requirements of the secretary of state are issued a valid restricted driving permit that allows in the drive the question then becomes whether or not a law enforcement just knowing the fact of the person's revoke is in the opportunist optum without any other factors showing that there has to be a reason article suspicion that of the persons on the license and all this can be removed by providing information on what the terms of conditions or restricted driving permit are by doing that there would not be an argument in this case because the officer would know clearly if this was a case where he was  how he rhymes a little bit better than i do when and when i ask your question but i am interested maybe when you come back on rebuttal on this whole affirmative defense idea and maybe if you can talk you know talk a little bit more about there as to why as i asked earlier why this isn't a seizure situation and not a search situation yes justice morning routers erica seaborn from the illinois attorney general's office on behalf of the people of the state of illinois may please the court this court should affirm the appellate court's holding for two reasons the police officer here had a reasonable suspicion that the defendant was driving outside the terms of his  he was justified in executing a terry stop counsel would he characterize it as a hunch then well your honor i think that he characterized it as a hunch because he was responding to a very leading question from defense counsel who i believe asked him so you had a hunch that the defendant was crime he was able to articulate what those facts were so even by terry's definition it wasn't a hunch i think that his use of the word hunch if it indicates anything it just indicates that sergeant belsky wasn't aware that the word hunch raises a red flag for reviewing appellate courts  the second reason that this court should affirm the appellate court's judgment is because the officer was not required to have suspicion about the existence of the r d p the absence of a restricted driving perman isn't an element of the crime of driving while license revoked it is instead an affirmative defen let's begin by addressing the reasonable suspicion issue the terry court recognized that the purpose of a terry stop is investigatory is to facilitate the gathering of facts in situations which the officer doesn't know went off to have actual probable cause as the us supreme court you would like me to address the computer and what you have under those circumstances would there be any situation in which the officer could not make if he officers computer reflected that the person's license had been revoked and the officer would have reasonable real it's actually legally driving if you have a valid already p then you're not going to end up being convicted of a crime no but you but you still get stopped yet you have to go through the process of you know defending yourself yes but the us supreme court when it carved out the exception for terry stops recognize that even though there are situations in which completely innocent conduct can give rise to reasonable suspicion stop can be valid at its inception even if the person isn't committing a crime so even if a person had as it turns out a completely valid already p and their driving within its terms the officer could still have reasonable suspicion that the person was committing a crime but the court allowed the well your honor i don't know that that you would actually get reasonable suspicion to do so because in this particular case the information that the officer had before he even executed the stop was down as much but it was what wasn't just that he was driving on this r g p that was the only home she had first of all i'd of course take exception to the characterization as a hunch i think that what he had was far more than that and those are his words yes that was the word that was put into his mouth but what he stated was that the basis the facts that we know from his testimony about why it is they can call the person over was he knew that the from his computer that the registered owner of the vehicle had a revoked license he was able to match a photograph of the registered talking about the computers the defense counsel argues that it would have been easy for the police officer to verify what the terms of the r g p were by calling the secretary of state's office or somehow reconfiguring the police department squad car computers so that they would give out this information it's not in the record of whether or not this information was available or how easy it was to get it but we do know he had no information we know that he did not know what the terms and what he was hunch was only his own opinion that people work nine to five and that necessarily isn't true today's no it's not true but it eventually medical reasons or some other reason so i don't know what his hunch was the fact that the  officer didn't know or didn't specify all the other reasons why an r g p could be granted under the secretary of state statute doesn't affect the reasonable suspicion inquiry it's an objective test as justice fitzgerald's earlier questions pointed out  even if he even a sergeant bales he had known all of the other possible reasons why an r d p could be issued he would still have reasonable suspicion to stop investigating what the terms of those r g p is were and whether or not the defendant was complying with let's assume for the sake of argument that it were possible for the police departments to reconfigure their computer so that they would have already key terms we don't know whether or not that's possible and certainly the will for them before us exactly but let's assume that the officer didn't know what the terms of the p were written for defendant may drive on sunday evenings for work purposes the officer still wouldn't necessarily know since he was not just on a routine patrol running license plates he would know whether the defendant was actually working on a sunday evening and the best way p it allows me to work on sunday evenings i'm on my way to my you know shift at the factory right now that would dispel suspicion and the stock would be over and the fandom would be on his way and in any event even if the officer did not have that information precedent indicates that the availability of less intrusive investigatory means doesn't vitiate reasonable suspicion we don't require police officers to call the secretary of state's office to investigate these things when he can get the same information just by doing a brief terry stop and of course it's not even in the record that the secretary of state's office would have been taking phone calls on a sunday evening or that the police officers squad car computers are capable of giving out this court should reject the analysis of the second district's people b johnson decision because the standard advocated by that core is more stringent than that required for reasonable suspicion johnson standard would have required the officer to have more information about the r d p's terms before executing stop but that is a logical when you compare it with how the r d p information would be treated in a resulting criminal case the language of the statute the pattern jury instructions and lower court case law so that the r d p isn't an element of the defense it's actually an affirmative defense therefore as justice thomas earlier pointed out it would be a logical to require a police officer to have more information at the terry stop stage then the prosecution would later be required to allege at the indictment stage and then pr beyond a reasonable doubt the language of the statute and the case law show that it is an affirmative defense if it were an element of the crime the state would have had to allege at the indictment stage and then prove it because it's an affirmative defense the officer doesn't need to have reasonable suspicion about it before the find out what's going on this is true even if as in this case the officer might have some information that could lead someone to believe that there is a possibility of a valid affirmative defense if the officer saw that the shooter was screaming at the moon and saying that the aliens were out to get him he wouldn't have to investigate an insanity defense before he executes a terr officer with the expectation that he would be released if it was covering it covering the situation if in fact the person that the officer determines that the r d p is valid could let him go i believe  justice thomas i do it if from a defense and i believe that we have to be doing at the trial level maybe misinterpret the question that you raise at a jury trial about since he asked that the it's not an element that the state must prove that a person has or does not have a looking at the i p i instructions is there anything whatsoever about the situation where it is a defense they have to raise at a trial because the section says that the uncle vehicle code six twenty five less successful three except specifically allowed by or stricter driving permit so if a person has a restricted driver's permit we would not get to the issue of a trial so i don't believe that this is an and further defense and maybe a follow up on justice burke's question about stopping any vehicle is our position that the take the third district holding out to its logical conclusion they can stop any vehicle to see whether or not the person is carrying their license whether or not the person has a restriction and there but you know there comply with that restriction it's getting it's random abuse stops that the police can have in a situation like this and we believe that we merely look at this case and the facts and circumstances the officer do not have  the issue can be solved by providing facts to the officer it's not a reason to expect that if they can find out person has a license revoked other information that they can have that information to allow them to then make a return is informed kind of interesting situation here because we're not talking about some kind of criminal activity like burglary with officers looking he said that looks like it's burglary we're talking a situation that a person driving you know it's hard to distinguish the person with a valid driver's license and a non valid driver's license  for then the summarily say that that was a leading question no i disagree the officer could have said no that is not a hunch he said yes that was sorry did you did you look at the record for that question i did and i don't have it here right in my desk at the podium here but the officer did when asked was reason you stopped was based on a hunch he said yes all right the officer could have said no that's not right the reason i stopped him was for some other reason the officer  not elaborate how did we know from the record in this case whether the information was available to the officer on what the terms the or d p no from the i think the record we did not know that information was available however when you take a look at the fact it has not been p that raises another standard for the officer just to say the stock i'm used as a check so if we agree with you four know what remedy would like would we be doing and no one would be not it was be up to law enforcement decide what action they would take by upholding this rule whether upholding the third district cases the opposite by not knowing whatever the terms are it's getting un bridled discretion to the police officer stop every permit person to verify whether or not they are in compliance with their permit for no other reason other the fact that they have a permit the person is not committing a violation of the rule or road we have no idea whether or not they are in compliance or not in compliance but we're going to stop to see if they are in compliance and i do not believe that the fourth amendment the constitution from reasonable search and seizures as well as you know delaware first approved to stop people who check to see what this is all about so it and again we start with the proposition that the officer survives individuals have a driver's license they also provides information the officers have restricted driving permits there's no information all comes from the government the government has all this and it is a fact in the facts this case is all this information that the officer had available was from his laptop computer he himself without contacting dispatch found out that the registered owner was revoked found out that the registered owner also had a restricted driving permit and also had that person's picture to be we're going to find that person and he's not a reasonable to assume that the information about the terms if they haven't already piece not and reasonably assume that the facts are that conditions in terms of that restricted driving permit cannot be made available to the officer and if law enforcement decides or that it's you know the other arms of the government decide that that that if they chose to say nothing about restricted driving permit and the person was driving along a policeman accessed the computer and got evidence that it was not driving on a suspended driver's they'll make a better society from the standpoint the officers will not have unbridled discretion to stop any individual for any reason they think based on a hunch that they will have a reason article suspicion that being the terms and conditions and there is no information on the cannot stop an individual but they have any more standard set forth other than an officer's hunch and i say that that can be removed by having the information provided to the officers through their laptop computers as i said they can have a picture of the driver so they can compare to see who the driver is