our first case on the call the docket today tuesday march thirteenth two thousand and twelve is agenda number one case number one one one seventy one people versus dentist a packard counsel for the  good morning your honors mr caster may please the court my name is david this school which i'm with the illinois attorney general's office on behalf of people the issue in this case is whether deputy michael blue and of the will county sheriff's department had reasonable suspicion to stop the defendant for what he perceived was a violation of section eleven seven zero nine a of the vehicles code that provision of the code requires that a motorist who is driving on streets that are designated for more than one lane of traffic remain within his lane if at all practicable the facts in this case show that deputy blue one had seen the defendant on two occasions breach the northbound lane of bridge street in joliet he actually saw the defendant's tires cross over that the dividing line marking the two northbound lanes of bridge street and on that basis pulled him over for a violation of section eleven seven o nine after which he discovered evidence that the defendant was driving on a revoked license and was driving under the influence of alcohol however largely adopting the reasoning of the trial court which had granted the defendant's motion to suppress and quashed evidence determined that the deputy blew and did not in fact have reasonable suspicion to make the traffic stop under the parameters of eleven seven zero nine eight and it rested this judgment on two grounds first determined that the defendant was not driving an appreciable distance over the lane dividing line such that it would cause a reasonable officer to suspect the violation of the provision and secondly it determined that because the defend was not endangering anyone in his lane breaches the reasonable officer could not similarly suspect a violation of this crossing the line that would tend to go into the endangerment aspect and the answer is that no we don't need to look at safety as far as a violation of this provision is concerned whether they cross the line this court held that as much in people motorist in danger as others were moving from a lane of traffic this court's decision to smith was driven by the plain text of the statute eleven seven zero nine a which contains no provisions allowing for an out if there is no endangerment or if the all under your interpretations of the law it's not irrelevant your honor that's because the distinction between smith and the cases are unfortunately here we don't know from the record how how it's fourth time is concerned how long the lane breaches were but the dissenting justice noted aptly that that can be kind of a misleading misleading consideration because according to his calculations the car traveling thirty miles an hour which was the speed limit on bridge street here for one second will go forty five feet the car traveling forty miles an hour will go sixty feet so even if it's a one second reach at thirty miles an hour we're looking at a distance of forty five feet my answer though is know that it doesn't matter but the course should look to the dissenting justices reasoning to dispense with any concern that time were distance is germane to the unanimous moreover to realize that putting it there are as drivers there are myriad situations which might cause a driver to momentarily deviate from his lane a fallen branch  of a car who weaves too close so other than those types of the days it's an absolute stay with the bully stay within the lane judge and i think that the reason behind that the vehicle code is full of safety safety statutes like this people who are staying in their lane are paying attention it's important to drivers pay attention to what they're doing and one of the most important ways to pay attention is to remain within your lane line if that road is designated for practicable that settled but it also determined that a violation of the statute does not occur if the deviation doesn't endanger anyone and if it's not for an appreciable distance this would in turn create really complicated scenarios for police officers out in the field to determine just how far is too far how and how dangerous is too dangerous is a vehicle that deviates across the lane line in danger in a car if a car if another motorist is five yards away ten yards away twenty yards away half a mile away these are situations that call for quick and immediate action on the road users and which guest judge hears it would appear the that the officer may have had sufficient grounds the officer didn't testify to the op there's nothing in the record with risk that the record is very limited with respect to evidence of dui and the officer all he testified to was that he saw the first breach and he said that he usually doesn't stop for the first minor transgression like that but once he saw the second one is suspicions were a bit more rouse and he decided at that time to take action but even if your honor that those two breaches didn't constitute  reasonable suspicion with respect to the dui the supreme court of the united states is said repeatedly in red versus united states that an officer subjective motivations for stop played no role in an ordinary reasonable suspicion analysis its opinion and in part one of my brief i just wanted to make sure to emphasize that the traffic stops are in fact governed by reasonable suspicion that's not to say however that deputy blue and did not have probable cause to make an arrest for this  traffic violation alone he certainly did he saw it with his own two eyes but the proper standard for purposes of these kinds of traffic stops is the lesser threshold of reasonable since this reasonable suspicion this is true in the facts that  after observing these two reaches of the line did not immediately pull over the defendant but rather followed him for some time in which he the driver moved in the left turn lane and then made two left turns correct judge so he didn't immediately stop him but continue to follow him while he he made by with all the traffic law correct he made several turns into a residential area that's the time of the stop and the moment the majority opinion in the court the majority of the court below didn't necessarily hold this much but it suggested that the defendants later good driving was significant in terms of measuring the reasonable suspicion but my research reveals no case saying didn't vidual who was speeding down route fifty five for instance for five seconds and then reduces his speed to the limit will have violated the speeding provision and an officer who sees that speeding still has reasonable suspicion to believe that there has been a violation notwithstanding any future good driving that's simply not how reasonable suspicion works and to the extent that the appellate court relied on that reasoning  that the reason i suppose suspicion at that point was some of the looted or diminished can't withstand scrutiny doesn't your interpretation of the statute of a certain standard allow for a great deal of discretion on the part of the officer in terms of enforcing it does judge but there's nothing wrong with an officer exercising his profession it's russian in ensuring that motorists are driving safely as possible officers ha discretion to stop drivers for speeding or wrong turns for here away violation and the defendant in this case doesn't appear to be making any argument that that entails that the that the that there some court kind of unfettered discretion here quite simply in this case deputy blue and saw a very clear violation of the vehicle code made the stop according to his one thousand years of professional experience he's done many of these after which he discovered furthermore think the argument was made that that since the state has the burden of proof and the credibility officer was pleased question because he had difficulty recalling some of the details of this just sure judge the defendant makes a lot out of the fact that deputy boone didn't recall certain aspects of the stop not not to stop itself but what preceded the stop that's really not pertinent to the question whether he had reasonable suspicion to stop and to speak to or question credibility  the trial judge's world ruling following the hearing there is no indication whatsoever that she found deputy lewis testimony in any of these points any less than credible if you might recall the defendant who testified at the hearing that he might have seen potholes and swerved had to swerve to avoid potholes that's not mentioned at all in the judge's world ruling the judge took wholesale and bought wholesale the fact that the defendant here did swerve twice over the lane lines  to understand your question that if the if the police officer at the suppression hearing testifies that he didn't see it he didn't see evidence of the lane breach whether  the first question is whether there is reasonable suspicion to make the stop right and then the second question is whether or not there was an actual violation of the statute which in this case that violation wasn't charged so that's not going to happen but the potential exists that at a trial on the actual charge independent of the stop reasonable suspicion analysis the defendant could come up with his own proof and the officer's testimony with respect to the stop could be challenged against the defendant's proof that as far as the charge for the violation is concerned in other words  the defendant's proof here was that he had to swerve to avoid some potholes the trial court appears not to have believe that version of events and bought the the police officers version that there were no potholes in the road whether there were potholes on the road probable reasonable suspicion analysis because it's only the view of the police officer acting objective way that we look to for reasonable suspicion but at a trial on the charge the defendant's proof that there were potholes certainly would and could play a role in his ultimate defense to the charge so i hope i've answered that question so in light of smith and clear and unambiguous statutory language and turning to the actual facts of this case we see that the record shows that brick street is a street roadway in joliet the day that the defendant was stopped was dry and it was clear it was  sunny office deputy blue and saw no impediments on the road no potholes that would have caused the defendant to make take a vase of action and reach the lane line he affected the stop and after which he found evidence of a revoke i agree with counsel that the underlying issue with regard to this matter is that reasonable this stop whether or not the officer had reasonable grounds not probable cause to effectuate the traffic stop for improper lane usage and  clearly and succinctly he did not one of the big overarching issues that i think is here with this case is whether or not the hackett majority  decision that was in line with this court's decision and smith and i submit we note that the session was still the same at that time as it is now two prongs gotta drive is nearly as practicable within one's lane and if you're about to move from lane eight to lane b you better make sure that you could do so motions to suppress to be granted if the defense could show hey no one was out no one else was out on the roadway no harm no foul these were standard corrections i was making while driving now this court tighten up and i realize that and smith tighten it up now it's a situation where the defendant must be able to show that he drove is nearly as practical within one  and if there was any type of lane change rolling crossing our lane cha ching it sure was done in such a fashion that no one else was threaten or harm smith was a little bit different factually than the facts that we have in hackett and i think that's really really important first and foremost and it's noted in the opinion smith and smith there was a videotape that trial court can see exactly what happened on the evening in question and hackett there wasn't so we've got the in the video itself the officer in that case and smith was clear as to what he observed and i submit that the deputy in blue in was it let me elaborate the officer and smith was able  over for turn signal violations but it's still possible the officer and smith observed driving in the lane in the left lane and noted just like the roadway here for mr hackett's case one brick stream juliette the two lane road way this roadway in smithville had a left turn lane and this officer know they clearly and succinctly and i think this is key what he specifically saw before effectuating the stop what did he see he saw the vehicle defendant's vehicle vehicle swing over to the right into the white him lane where the right hand tires of the vehicle more than six inches on the right hand lane the rest the remainder of the vehicle still in the left tail lane and continue traveling in whatever direction that the arresting officer actually has to be able to articulate what he or she saw that would constitute a violation of some part may in other words the officer would have to specifically going to describe it is they he or she actually saw that says to him or herself hey i've got we spoke rounds to effectuate the stop is here is your argument council with what he saw or the way he both be perfectly honest with you i am concerned that he wasn't what i was asking him questions open ended questions i cross examination for this motion suppress i specifically asked him and maybe  pushing for me to do as counsel at that time but i specifically asked him not debate him what did you actually see that led you to think that you had a reasonable grounds what part of the vehicle was over how much of the vehicle over did indicated that you are not seeking to rule that says distance travel or amount of time you are nor would it were rule really be workable would it why not seek a new wall when i'm stating as i believe that the holding and world promulgated by this court and see it's just that and i'm asking that that will be ratified we're in smith those it's there has to be a certain time duration were is there it doesn't but at all but it no there's a notation made and that's what it in this article court's holding that the vehicle hit not only had to drive not as nearly as packed well within a lane but had to travel  how far or what portion of the vehicle went over so i don't know what depth need luhan saw there was the strongest word that is the most detailed response that he provided and that and that's the response i'm in the smith analysis that requires a time or a length of driving into lanes and is just as thomas pointed out if you cross a lane and you're driving a car guess you're driving into lanes  around that i agree with you that there is nothing there was no notational holding or whirling made and smith that required either a distance or time component now if i may suggest i don't believe that the majority in hackett is suggesting or is adding that as an additional walk i think they're making a notation as to a cut time component because there is a time and distance component noted and smith that i think they were right to distinguish part of the factual basis of smith but not part of the analysis that there was necessary to be having a certain distance or certain amount of time in the other welcome actual question there are two lanes heading in the same direction or in different correct two lanes in each direction toward all four lanes does it make a difference that it was not two lanes but each direction traveled over towards the left between the dividing lines of north and southbound travel on bridge street so i don't know that type of factual situation was never presented the allegation if any is that even crossing the line for a few seconds and using with the stage door you would result in a number of feet trailing her second you respond to that for reasons known to the justice he made a determination to bring in what he did being deemed to be an outside reference in making a determination or trying to make an approximation as to time feet m and distance i don't was absolutely no evidence as to that promulgated at the pretrial hearing and i suggest that same just doesn't doesn't hold much merit or weight here  response just as question if for get you dish will notice for a minute if the officer had testified that he observed the defendant slightly you're barely crossing the center line and went on to say in response to your question that constitute constituted driving and two lanes of traffic then you would be ok with it or feel sable tied to claytor testified that in fact i observed him driving into lanes of traffic  i would believe i would have a much harder argument to make before yawners than i already do crossing of that vehicles right hand tires over a fog line now i do note that the factual situation is slightly different there in so much that there was testimony proffered that this absolute that you must stay within your lane there are other circumstances that there are other things that could lead one to touch a lane marker or to cross over a lane marker it's not an absolute what is driving as nearly as practicable in one lane me if i was straight on the officers following the driver and there's no reason there's no i think the states of no limbs on the road  that he couldn't drive within that one lane as nearly as i could and there might be a couple questions right it is not try to answer me as best i can honor's that there could be other things other obstacles in the roadway for example that can hit one from driving completely within one's lane driving requires a series of corrections it isn't an absolute you don't point your car one way and you're automatically in that spot driving within that that brander of a particular roadway and carrying on all of us if you're in automobiles all of us probably of german automobiles today our hands aren't around staring well there are slight minute corrections that always need to be made to be able to stay within one lane to be able to move properly in safely from one lane to our next it's always go articulate clearly what he or she in fact saw and at a minimum must be able to testify a crossing into and over some type of lane marking and some type type of travel while partially at the burden of the prosecution the show or the defendant i believe it is the prosecution's burden to be able to show through the witness that reasonable in this of the traffic stop and without being able to do so and be able to articulate same i submit that motions such as mine you please the court your honors i just have several points to make before i sit down my evil ponens primary argument appears to be that deputy balloons testimony was less than clear on whether or not he actually saw  violation of the statute but that argument can be reconciled with the record blue in testified on direct examination that he saw defendants tires twice cross over the dividing line and on both of those occasions he saw space between the edge of the defendant's tire and the inside edge of the dividing line he said that at page sixty six of the record he said it again at page seventy seven of the record seventy eight of the record on cross examination and then again page eighty six of the record on redirect examination with respect to the defendant's contention in the trial court that there might have been potholes deputy boone was just as clear he testified that on direct examination he was asked were there potholes he said not that i recall no again on page seventy nine on o on cross examination he was asked whether he saw potholes and he said again not that i recall no just to make sure for the record that deputy boone was sincere in his belief and correct in his belief that he didn't see potholes he was again asked on redirect whether he had to move his squad car to avoid any holes answer no whether he hit me potholes answer no and whether he saw any potholes on that section of bridge street in answer no so to suggest that deputy balloons testimony was somehow incomplete or lacking in specifics which would have given him the reasonable suspicion to pull over the defendant for violating section eleven seven zero nine a simply isn't borne out by the record true deputy bloom did not testify about how far the lane breach was but according to smith in the plain text of the statute he didn't have to smith says that any crossing of the lane line lane line under these actually driving in two lanes of traffic when he reached the lane line the majority in the court below also seized on this theory that slight or insignificant or momentary lin tire seen over the line for however much distance that reach occurs what we have there is a vehicle traveling in more than one lane of traffic my opponent driving this of course led the trial court to find that there was not reasonable suspicion under those circumstances where the very officer who made the stop said the visibility was poor and it was a really curvy road to make a stop under those circumstances here by contrast we have a flat straight roadway in juliet lane for four lanes as i mentioned in my opening remarks that the record shows that the weather was dry the weather was clear it was sunny  powered road potholes on the road which would have might have excused a temporary or brief swerve into the other lane and on that basis he had reasonable suspicion to effect the stop unlike the officer in lyon decker who was confronted by his own admission with driving conditions which were far less favorable you've seemed to indicate the officer biased testimony of not seeing potholes nothing else around there was nothing to practically impede with is the defendant's ability to drive in one way is of the state's burden of proving that or is it the crossing of the line sufficient proof that it wasn't practicable to stay in one lane is not a matter of a permit defense actually that's that's the question you asked in my opponent the burden that the motion to suppress stage is actually on the defendant because it's his motion he has to show that the stop was unreasonable under the circumstances  now as an affirmative defense your honor that goes to a later proceeding where charges might be brought on the actual violation and at that proceeding the defendant would be surely be free to return bring in whatever proof he might  with respect to driving conditions he did so here too but the the the very no inquiry at the suppression hearing was only whether there was reasonable suspicion not whether there was a defense to the ultimate charge if the court has no further questions i appreciate your time this morning and request again that this court reversed the appellate court's decision and remand to the circuit court of will county thank you or others thank you counsel case number one eleven seventy one people versus hackett taken under visors agenda number one thank you for your arguments