NO. 5-00-0420

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the 

							)  Circuit Court of

     Plaintiff-Appellee,				)  Effingham County.

							)

v.  							)  No. 98-CF-222

							)

BRETT W. RAY,					)  Honorable

							)  John P. Coady,

     Defendant-Appellant.				)  Judge, presiding.

________________________________________________________________________

	JUSTICE HOPKINS delivered the opinion of the court:

	Brett W. Ray (defendant) appeals from his conviction, pursuant to a stipulated bench

trial, for possession of more than 5,000 grams of cannabis (720 ILCS 550/4(g) (West 1998)). 

Defendant was arrested at a drug interdiction checkpoint operated by the Effingham County

sheriff's department.  Defendant moved to suppress evidence recovered during a search of

his van at the checkpoint.  The trial court denied defendant's motion to suppress.  Defendant

contends on appeal that the checkpoint violated his constitutional right to be free from

unreasonable searches and seizures under the United States Constitution (U.S. Const.,

amend. IV) and the Illinois Constitution (Ill. Const. 1970, art. 1, §6), under the holding of

the recent United States Supreme Court case of City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000), and that because the stop of his vehicle was

unconstitutional, the trial court's denial of his motion to suppress evidence was manifestly

erroneous.  We reverse.

	FACTS

	On December 14, 1998, defendant was traveling north on Interstate 57 (I-57) in his Ford van.  Defendant's license plates reflected that he was from Florida.  About a half mile

south of northbound exit 151, the Watson-Mason exit, signs were placed by the Effingham 

County sheriff's department that stated as follows: "Drug Enforcement Checkpoint Ahead

Half Mile."  A second set of signs, placed approximately 100 yards after the first set of signs

and before exit 151, stated as follows: "Drug Dogs in Use Ahead."  There was no such

checkpoint "Ahead Half Mile" on I-57, which defendant discovered when he exited at exit

151.  The true drug interdiction checkpoint could not be seen from the interstate and was at

the end of the exit ramp.  

	Defendant was stopped by Deputy Robert Rich and responded to initial questions at

the checkpoint, but because Deputy Rich's suspicions were aroused by defendant's answers

to his questions and by defendant's alleged nervous behavior, Deputy Rich asked defendant

further questions regarding whether defendant had heroin, cocaine, or cannabis in his van. 

Defendant denied he possessed any of the drugs.  Deputy Rich testified that when he asked

defendant a second time if he possessed marijuana, defendant said that he had some in the

van.  Defendant refused to consent to a search of his van.  

	Subsequently, Corporal Paul Kuhns, a dog handler for the Effingham County sheriff's

department, did a "walk around" of defendant's vehicle with a dog named Fritz.  After Fritz

reacted to the driver's side doorjamb of the vehicle, a search of defendant's van was

conducted.  More than 120 pounds of cannabis were found inside a black duffel bag behind

the driver's seat of the van, and defendant was placed under arrest. 

	Defendant filed a motion to suppress evidence based upon the illegal stop of his van. 

At the hearing on defendant's motion to suppress, the following pertinent evidence was

adduced.  Ronald Meek, the sheriff of Effingham County, testified that his department runs

a drug interdiction checkpoint.  The drug enforcement checkpoint was adopted after

Corporal Kuhns told him about an article he had read concerning drug checkpoints that were being conducted throughout the country.  Sheriff Meek considered the drug checkpoint to

be a "very effective way to interdict and stop the flow of drugs in and through Effingham

County."  Sheriff Meek approved the written policy for conducting the drug checkpoint. 

Sheriff Meek stated that the purposes of the checkpoint were "to detect people that are

driving without [a] driver's license, without insurance, [or with] other vehicle equipment

violations, [to] remove people who could be impaired and under the influence of drugs, and

to interdict the flow of narcotics through Effingham County."  However, Sheriff Meek was

not aware of an equipment-violation checklist employed at the checkpoint.  Sheriff Meek

testified that anyone coming off the interstate while a checkpoint was in operation would be

a suspect for the following reasons: "[N]o valid driver's license.  No valid insurance. 

Carrying drugs[;] you know, wanted on warrants.  It could be a variety of things."  

	Sheriff Meek explained that the policy for the drug checkpoint required that all

drivers be interviewed at the checkpoint, "except drivers recognized as having previously

been passed through the check[]point earlier or after[–]or drivers personally recognized by

the officer to be local residents who have previously been checked for license[] [and]

insurance validity on prior occasions, or law enforcement vehicles in the course of business." 

Sheriff Meek agreed that the drug checkpoint policy did not define "local residents" and that

whether a person was considered local was left to the officer's discretion.  Sheriff Meek did

not think that the drug checkpoint policy allowed an officer to stop a person again after they

had been stopped once and had properly answered all of the initial mandatory questions. 

The questions posited at a person's initial detention at the checkpoint consisted of asking for

a driver's license, for proof of insurance, whether the person owned the vehicle, whether the

person saw the checkpoint signs on the highway, why the person got off the interstate at that

exit, where the person was going, and where the person was coming from.    

	Sheriff Meek stated that he chose that site for the drug checkpoint because there were no services at that exit.  Sheriff Meek also chose the site because traffic off the exit was light

and the layout of the exit afforded officer safety and traffic safety.  

	Corporal Kuhns testified that he drafted the policy for the drug enforcement

checkpoint and that the policy was adopted on October 15, 1998.  Corporal Kuhns stated

that the policy was modeled after a policy used in Phelps County, Missouri.  Corporal Kuhns

and Deputy Rich trained at the Phelps County, Missouri, drug checkpoint.  Corporal Kuhns

stated that the main purpose of the checkpoint was to interdict the illegal flow of drugs

through Effingham County and was also to remove unsafe, unlicensed, and uninsured

motorists from the roadway.  

	Corporal Kuhns corroborated that the exit used for the drug checkpoint was chosen

because it is "a rural exit that provides no services to people who get off the exit."  Corporal

Kuhns also cited safety reasons as a factor in choosing the exit.  Corporal Kuhns testified

that the mere fact a driver gets off of the interstate at that exit "is not enough to suspect

someone" but that "it does lend suspicion to him."  Corporal Kuhns also explained the

purpose of the signs on the interstate: so that violators "would self-select themselves." 

Corporal Kuhns corroborated that any person who had previously been through the

checkpoint and had complied with license and insurance requirements was allowed to pass

through thereafter without being subject to another stop for license and insurance checks. 

	Corporal Kuhns described what the officers did after stopping a vehicle: "[You]

would first visually look from where you're standing[,] in[to] the vehicle[,] to see if there

are large amounts of air fresheners, masking odors, a lot of clothing in the car.  When you

would speak to the subject, [you would] ask him for his driver's license [and] proof of

insurance[;] you would notice if the driver seemed overly nervous or excited about being in

this police encounter; you would ask him the questions, if he would tell you things that you

would believe to be untrue, that would raise suspicion.  You would ask him where he came from.  If he was coming from a source city that we know drugs often come from, that would

perhaps add to the suspicion.  If he was going to a destination that perhaps narcotics were

traveling to[,] you would ask the reason they got off the exit."  Corporal Kuhns thought that,

if "everything went well," a person would only be detained initially for about two minutes. 

An officer's suspicions must be aroused for further detention.  According to Corporal Kuhns,

a checkpoint is not a net to sweep up all criminal activity. 

	Deputy Rich from the Effingham County sheriff's department testified that the

purpose of the checkpoint was "to get unqualified driver's [sic][–]no insurance, driving under the influence, drugs."  Deputy Rich stated that according to the policy for the

checkpoint, everyone that comes off the interstate was a suspect; however, Deputy Rich

acknowledged that the suspicion was not related to any specific crime or other misconduct. 

Deputy Rich believed that the policy manual for the drug checkpoint removed discretion

from an officer.  Deputy Rich stated that discretion to ask further questions is allowed when

suspicion arises.  	The trial court ruled that the stop of defendant's vehicle at the drug checkpoint did not violate his constitutional rights, and it denied defendant's motion to

suppress evidence.  After being convicted in a stipulated bench trial and sentenced,

defendant filed his timely appeal. 

	STANDARD OF REVIEW

	The review of a constitutional issue is de novo.  Patel v. Illinois State Medical Society, 298 Ill. App. 3d 356 (1998).  A trial court's ruling on a motion to suppress will be overturned on review only if it is manifestly erroneous.  People v. Fullwiley, 304 Ill. App. 3d 44 (1999).

	ANALYSIS

	The primary issue raised by defendant is the constitutionality of the drug interdiction

checkpoint, an issue addressed in the recent United States Supreme Court case of City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000).  However, the State asserts that Edmond does not apply, as there were specific and articulable facts, taken together with reasonable inferences, that warranted a Terry stop (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)).  The State argues that the totality of the

circumstances warranted a Terry stop and that, after the valid stop, probable cause arose to arrest defendant.  The State contends that the act of exiting on the particular exit ramp, just

prior to the supposed drug checkpoint on the interstate, raised the suspicion that defendant

was trafficking in illegal drugs.  Thus, before considering whether the drug checkpoint used

in the case sub judice was constitutional, we first address whether the Effingham County police had sufficient specific and articulable facts to conduct a Terry stop of defendant's vehicle.

	In Terry, the United States Supreme Court determined that a law officer is entitled to briefly stop a person to investigate if, given the totality of the circumstances, the police

officer has specific, articulable facts, taken together with rational inferences from the facts,

that warrant the intrusion.  Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.  For a proper Terry stop, the officer's basis for the stop must be objectively reasonable and cannot be based upon inarticulate hunches or unparticularized suspicions.  Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; People v. Ruffin, 315 Ill. App. 3d 744 (2000).  An evaluation of a Terry stop necessarily entails balancing the need for the seizure against the invasion that the seizure entails.  Terry, 392 U.S. at 21, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879.  "An officer may make an investigatory stop of a vehicle if he or she reasonably infers

from the circumstances that an offense has been committed or is about to be committed."  People v. Henderson, 266 Ill. App. 3d 882, 885 (1994).  

	In the case sub judice, the evidence in support of a Terry stop consisted of Officer Rich's unparticularized suspicion that any person getting off the interstate at exit 151 was suspicious of committing an unnamed crime–i.e., it could be a lack of a valid driver's license, a lack of valid insurance, a lack of a valid registration, driving under the influence,

or trafficking in drugs.  However, there was nothing to determine what, if any, of these

possible crimes was being or had been committed.  Officer Rich was operating on an

unparticularized and unsubstantiated hunch.  Further, defendant had committed no traffic

violation that would warrant a Terry stop.  As was noted in the case of United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998), a case factually similar to the case at bar, "a driver, who has violated no traffic law, whom an officer could not stop for a pretextual purpose

away from the checkpoint, [citation], may be subjected to a pretextual stop merely for

choosing to travel the road on which a checkpoint has been erected," and such a stop is not

to be permitted under the fourth amendment.  Huguenin, 154 F.3d at 557.  Additionally, no evidence was presented in the instant case that exit 151 from the interstate was an area of

high volume for illegal drug trafficking.  The location was chosen simply for its lack of

services.  

	The State also claims that defendant's leaving the interstate is akin to evasion by

flight, which the Supreme Court found to be a sufficient basis for a Terry stop in Illinois v. Wardlow, 528 U.S. 119, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000).  The analysis of flight from an officer is not clearly applicable to a case such as we consider here.  In Wardlow, the Supreme Court did not state a per se rule that flight from an officer is sufficient in and of itself to support a Terry stop, but instead, the Court reflected that this is a factor to be considered among the totality of the circumstances.  The Court also found it persuasive that

the defendant in Wardlow actually saw the police and that the area was known for heavy narcotics trafficking.  Upon seeing the officers in a car, the defendant, who was carrying an

opaque bag, immediately took flight.  Under the totality of those circumstances, the Supreme

Court determined that these facts provided a sufficient basis for the officers to have a reasonable, articulable suspicion that criminal activity was afoot.  Wardlow, 528 U.S. at 121- 23, 145 L. Ed. 2d 570, 120 S. Ct. at 674-75.  

	In the instant case, there were no particularized facts indicating that defendant was

evading the police.  Defendant did not see the police until he had begun his exit from the

interstate, he was not in a high-crime area for narcotics trafficking, and he had done nothing

but exit the interstate, an act that is not particularly incriminating in and of itself.  Thus,

under the totality of the circumstances in this case, we find that there were no specific,

articulable facts to justify a Terry stop of defendant's vehicle prior to the stopping of his vehicle at the drug interdiction checkpoint.  

	Turning to the issue of the constitutionality of the stopping of defendant's van at the

drug interdiction checkpoint, we find that the decision in the recent United States Supreme

Court case of Edmond is dispositive.  In Edmond, the city operated a vehicle checkpoint on the highway in an effort to interdict unlawful drugs.  The checkpoint was operated pursuant

to written directives designed to limit officer discretion.  The directives provided that after

the stopping of a certain predetermined number of vehicles at the roadblock, an officer

approaches a vehicle, identifies himself, tells the driver that he or she is being stopped

briefly at a drug checkpoint, and asks the driver for a license and registration.  The officer

looks for signs of impairment and does an open-view examination of the vehicle from the

outside.  A narcotics-detection dog does a walk-around of each vehicle stopped.  The city

set up signs before the checkpoint that indicated that a narcotics checkpoint was a certain

distance ahead and that narcotics dogs were in use.  The directives also provided that the

officer may only conduct a search if the driver consents or if there is an appropriate

"quantum of particularized suspicion."  Edmond, 531 U.S. at 34-36, 148 L. Ed. 2d 333, 121 S. Ct. at 450-51.  

	The fourth amendment to the United States Constitution (U.S. Const., amend. IV) requires searches and seizures to be reasonable, and a search or seizure is ordinarily

unreasonable in the absence of individualized suspicion of wrongdoing.  Edmond, 531 U.S. at 37, 148 L. Ed. 2d 333, 121 S. Ct. at 451.  A vehicle stop at a highway checkpoint is

considered a seizure within the meaning of the fourth amendment.  Edmond, 531 U.S. at 40, 148 L. Ed. 2d 333, 121 S. Ct. at 453; Fullwiley, 304 Ill. App. 3d at 49.  Not all highway checkpoint programs violate the fourth amendment (United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976) (border patrol checkpoint designed to

intercept illegal aliens did not violate the fourth amendment); Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990) (highway sobriety checkpoint program did not violate the fourth amendment)), and a distinguishing factor as

to whether a checkpoint program violates the fourth amendment is the primary purpose of

the checkpoint.  Edmond, 531 U.S. at 38-40, 148 L. Ed. 2d 333, 121 S. Ct. at 452-53.  When the primary purpose of a checkpoint program is to detect evidence of ordinary criminal

wrongdoing, as opposed to the purpose of protecting the integrity of the border (Martinez- Fuerte) or highway safety (Sitz), the checkpoint violates the fourth amendment.  Edmond, 531 U.S. at 41, 148 L. Ed. 2d 333, 121 S. Ct. at 454.  The Supreme Court determined that

drug checkpoints are for the advancement of a general interest in crime control, and the

Court declined to suspend the usual requirement of individualized suspicion in such cases

and held that it could not "sanction stops justified only by the generalized and ever-present

possibility that interrogation and inspection may reveal that any given motorist has

committed some crime."  Edmond, 531 U.S. at 44, 148 L. Ed. 2d 333, 121 S. Ct. at 455.

	Generally, to determine if a seizure was reasonable under the fourth amendment, a

court must weigh the public interest against the objective and subjective intrusion resulting

from the roadblock.  Fullwiley, 304 Ill. App. 3d at 49.  The Supreme Court acknowledged that trafficking in illegal narcotics creates social harms of the first magnitude and is a public interest, but the Supreme Court reasoned that the same could be said of various other illegal

activities, albeit to a lesser degree.  Edmond, 531 U.S. at 42-43, 148 L. Ed. 2d 333, 121 S. Ct. at 454-55.  The Supreme Court held that because the primary purpose of the Indianapolis

checkpoint program was indistinguishable from the general interest in crime control, the

stops at the drug checkpoint, without a quantum of individualized suspicion, violated the

fourth amendment.  Edmond, 531 U.S. at 48, 148 L. Ed. 2d 333, 121 S. Ct. at 458.    

	The same problem arises in the case sub judice.  It is clear from the evidence presented that the primary purpose of the checkpoint operated by the Effingham County

sheriff's department was for the interdiction of illegal drugs through Effingham County.  The

signs placed on the interstate indicated that the stop was for a drug checkpoint.  All three of

the officers of Effingham County testified that the checkpoint was first and foremost for the

interdiction of illegal drugs and secondarily for other various violations.

	Deputy Rich testified that everyone who exited the interstate at exit 151 was a

suspect, but he could not articulate the suspicion.  This testimony establishes a generalized

suspicion, not a "quantum of individualized suspicion" that the State urges was sufficient

to justify the stop.  

	Corporal Kuhns testified that the interrogation and observations of the officers were 

used to develop individualized suspicion to allow a search.  This testimony established that

"interrogation and inspection may reveal that any given motorist has committed some

crime," a method not sanctioned by the Supreme Court.  Edmond, 531 U.S. at 44, 148 L. Ed. 2d 333, 121 S. Ct. at 455.  

	Just as in Edmond, the public interest herein is a desire to thwart the trafficking of illegal drugs.  The Supreme Court did not consider this public interest sufficient to outweigh

the subjective and intrusive nature of the drug checkpoint.  In the instant case, the public

interest is outweighed by the intrusive nature of the drug checkpoint.  The purpose was for general crime control and was an insufficient public interest to outweigh the private

interests.  Further, the questions asked–specifically, why the person was getting off at that

exit, where the person was coming from, and where the person was going–were highly

intrusive.  Asking a person's destination or departure point and using the answer as the basis

of suspicion is a highly subjective and objective intrusion.  Thus, a weighing of the interests

establishes that the drug checkpoint violated defendant's fourth amendment rights. 

	Here, there were insufficient specific and articulable facts to warrant a Terry stop, and there was no individualized suspicion to justify the seizure of defendant at the drug

interdiction checkpoint.  The stop of defendant's vehicle was unconstitutional under the

fourth amendment to the United States Constitution.  Because the seizure of defendant's

vehicle was invalid, the search of defendant's vehicle was invalid, and the evidence obtained

resulted from the illegal stop.  See Wong Sung v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).  Therefore, the trial court's denial of defendant's motion to

suppress was manifestly erroneous.  We reverse the trial court's denial of the motion. 

Because there is insufficient evidence remaining to convict defendant if the illegally

obtained evidence is excluded, we also reverse defendant's conviction and sentence.    

	CONCLUSION

	For the foregoing reasons, the judgment of the circuit court of Effingham County is

reversed.

	Reversed.

	JUSTICE KUEHN, specially concurring:

	The recent United States Supreme Court decision handed down in City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000), would appear to control the outcome of this case.  Since the Effingham County sheriff's

enterprising, and quite successful, exploration for illegal drugs required the indiscriminate

stop and detention of everyone who happened to travel exit 151, it echoes the indiscriminate

drug exploration engaged in by the Indianapolis police officers, an operation reviewed, and

struck down, by the high court.  There is no constitutional salvation in this particular

operation's deceitful twist, for its potential lure of drug-toting criminals onto exit 151, and

into police custody for interrogation, provided no means for differentiating potential

offenders from innocent wayfarers using the exit to simply get somewhere.  Moreover, every

traveler had a constitutional right to avoid the indiscriminate detention and search that the

signs claimed  would lie ahead.  Their travel of a different route was a simple exercise of

that right.  

	The dissent is taken by the authorities' use of phony warnings designed to arouse fear

that an imminent roadblock, complete with drug-dog searches, awaited anyone who

continued to travel north on Interstate 57.  Such impending prospect would prove a serious

threat to drug traffickers.  Since it would tend to chase wrongdoers with something to hide

from the interstate, and exit 151 afforded the most ready avenue of escape, we are told that

the deputies from Effingham County possessed something that the Indianapolis police

officers lacked–an individualized suspicion that those who disembarked Interstate 57 by way

of exit 151 were engaged in criminal activity.  Since whatever suspicions the deputies

possessed were derived solely from a traveler's decision to get off of the interstate at exit

151, we are left with the question whether that decision could afford a legal justification for

the universal detention of the traveling public and the indiscriminate investigation into the

circumstances of their travels. 

	The interstate highway system is the primary instrumentality by which people move

from state to state within this country.  When travelers utilize it, they must inevitably exit it and travel other highways and roads in order to get where they ultimately want to go.  A

cursory look at an Illinois road map instructs that interstate travelers from all points south

of Effingham would likely take exit 151 if their final destination was any one of the

following Illinois towns:  Watson, Mason, Heartville, Dieterich, Newton, Oblong, or

Robinson.  It could also be the exit of choice for travelers trying to visit the southern part of

Effingham.  Most assuredly, it would become the obvious exit of choice for anyone wanting

to go anywhere in Effingham if they read signs suggestive of a roadblock on the interstate

between exit 151 and the other Effingham exits that lie to the north. 

	People traveling the interstate are usually interested in getting somewhere at an

appointed hour.  Any interstate traveler, intent on getting to Mattoon, Champaign, Terre

Haute, Kankakee, or Chicago without the prospect of uncertain delay and bother, might

easily decide to forego the interstate for a brief time in order to avoid policemen and their

dogs as they tried to ferret out drug traffickers from among the mass of cars and trucks

rolling in their direction.  The notion of an interstate roadblock with an unidentified number

of drug-sniffing dogs in use might arouse a vision of traffic congestion and delay.  Time-

conscious travelers, with this uncertain image in mind, could be expected to consult a road

map to determine whether an efficient alternate route of travel could allow them to bypass

the operation.  People seeking nothing more than to continue their travels in unobstructed

fashion could decide to take exit 151.  Given the uncertain alternative ahead, the exit's use

would be the smart move.  It lies approximately a mile or so away from Highway 45, which

runs north and south, and intersects Interstate 57 a dozen or so miles to the north, at a point

beyond the phantom policemen and their phantom dogs.  Exit 151 afforded an easy alternate

route of travel that could avoid a police operation that promised a potential for significant

delay and inconvenience.  

	Thus, there were several legitimate reasons why people might have taken exit 151, even if access to gas stations or fast-food restaurants was not one of them.  There was every

possibility that people taking the exit were taking it to get where they wanted to go.  And

within that possibility was the likelihood that some of the people were using exit 151 to

ensure continued travel by avoiding the phantom roadblock–the precise motivation that we

are told gives rise to an individualized suspicion that they were engaging in criminal activity. 

	The dissent recognizes that the success of the operation cannot justify the means

employed, if those means were illegal.  Nonetheless, it boasts of the operation's ultimate

success at finding contraband.  I view the operation's statistics differently.  First, I wonder

about the need for a scorecard.  Obviously, someone must have thought that the operation's

statistical percentage of success would provide the measure of its validity.  Indeed, the State

makes note of it in its arguments.  I look at the statistics and see all of the innocent people

who were treated like drug traffickers in order to meet the operation's objective.  I see people

stopped, detained, interrogated, and searched by drug-sniffing dogs, without reason to

support it.  Since the deputies had no way to divine who was using exit 151 for a legitimate

purpose and who was using it to conceal the transport of narcotics, 4 out of every 10 people

whose fourth amendment right was violated belie the operation's validity, even if we were

of a mind to allow the ends to justify the means.  Before a percentage of success makes any

of us feel too good about what was done, we might consider how it must have felt to have

an effort to get somewhere brought to a halt so that deputies could detain, interrogate, and

search under a protocol that viewed every traveler as a drug smuggler.      

	We know that anyone who exited the interstate immediately became a criminal

suspect.  Everyone suffered detention as a criminal suspect and interrogation as a criminal

suspect.  One of the several questions asked was a question about why the traveler decided

to get off of the interstate.  Those who simply acknowledged that their reason was to bypass

the announced checkpoint and keep heading north undoubtedly discovered the ignominious experience of prolonged detention, complete with strained and heightened efforts to probe

the interior of their cars and a thorough search from a drug-sniffing German shepherd and

its handler.  

	There was one reason, and one reason alone, for the deputies to consider all of these

innocent travelers criminal suspects–their decision to take exit 151, the next exit after the

warning of an ongoing drug probe ahead on the interstate.  The dissent finds, that "[T]hese drivers

were stopped for questioning because the police reasonably believed that, by attempting to

evade the checkpoint, they possessed drugs."  Slip op. at 18 (Welch, J., dissenting).  Of

course, this view accepts the flaws inherent in this operation.  First, there is nothing in

particular, and, therefore, nothing reasonable, about a suspicion that everyone who decided

to leave the interstate at exit 151 did so in an attempt to evade the checkpoint.  

	More important, the warning signs possessed the ability to chase innocent, as well as

culpable, travelers off of the interstate and into the snare.  While the signs were intentionally

vague, their design was capable of evoking widespread fear of undue delay while authorities

conducted what would seemingly be an extensive operation, given its application to all

interstate traffic.  Hence, the prospect of an interstate roadblock complete with dog-assisted

searches was something a driver could decide to forego without raising individualized

suspicion of criminal wrongdoing to a level that justified detention.  

	Finally, there was no obligation on the part of any interstate traveler, even one who

possessed contraband, to drive on and submit to a police encounter, had the phantom

roadblock indeed existed.  Any driver who decided to travel a different public way in order

to avoid the phantom operation, whether motivated by a desire to evade perceived delay or,

for that matter, by a desire to avoid indiscriminate searches of his belongings and the

invasion of privacy that such searches would entail, would have made a decision entirely

consistent with constitutional guarantees to which he was entitled.  A conscious decision to avoid the potential indiscriminate search of which the signs warned, not unlike the refusal

of a request for consent to search, would not create a reasonable suspicion of criminal

wrongdoing.  While the exercise of every constitutional right in the face of an official

request to surrender it raises official suspicion and heightens the belief that an individual 

must have something to hide, the exercise of that right is not an act of evasion that

authorizes its abrogation or its diminution.  

	The State correctly points out that evasion by flight has been held to provide the

degree of suspicion necessary to justify a Terry stop.  Illinois v. Wardlow, 528 U.S. 119, 124-25, 145 L. Ed. 2d 570, 576-77, 120 S. Ct. 673, 676 (2000).  However, evasion by flight

is something different from a citizen's decision to simply avoid an encounter with the police.

The flight must be unambiguous in order to provide the articulable suspicion necessary to

warrant a Terry stop and detention.  People v. Thomas, 198 Ill. 2d 103, 759 N.E.2d 899 (2001).  Here, the act of leaving the interstate was replete with ambiguity.  Even an

admission that the interstate was exited for the express purpose of avoiding the announced

drug checkpoint would not remove that ambiguity.  The only way authorities could remove

it, and determine that a given exit was indeed an act of flight designed to prevent the

detection of illegal drugs, was to find illegal drugs.  By that time, whoever had them, along

with every other individual who decided to exit the interstate, had already been subjected

to an unreasonable seizure.  The only available means authorities had to remove the

uncertainty inherent in every car's approach was to view everyone as a criminal suspect: to

stop them, to detain them, to interrogate them, and ultimately, to search them.  In the

subjective mind of the detaining officer, no one was free to leave until they passed all of the

protocol's tests.  The only reason to support the seizure, detention, and interrogation was a

traveler's presence on an exit that allowed people to travel from one place to the next. 

	Since a seizure cannot be justified by its success (Byars v. United States, 273 U.S. 28, 29-30, 71 L. Ed. 520, 522, 47 S. Ct. 248, 248-49 (1927)), the seizure in this case cannot be

justified.  Accordingly, I specially concur.

	JUSTICE WELCH, dissenting:

	I respectfully dissent, because I believe that the facts support a finding of a valid

Terry stop and that the suspicionless stop in Edmond is distinguishable from the instant case.  City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).

	The fourth amendment to the United States Constitution guarantees the "right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures."  U.S. Const., amend. IV.  The fourth amendment is applicable to the

states under the fourteenth amendment.  U.S. Const., amend. XIV.  Stopping an automobile 

at a highway checkpoint constitutes a seizure under the fourth amendment.  Michigan Department of State Police v. Sitz, 496 U.S. 444, 450, 110 L. Ed. 2d 412, 420, 110 S. Ct. 2481, 2485 (1990).  

	However, in Terry the United States Supreme Court held that a police officer could briefly detain a person for investigatory purposes in some circumstances.  Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.  Under the Terry exception, a police officer may briefly stop a person for temporary questioning if the officer reasonably believes that the person has

committed, or is about to commit, a crime.  Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880; People v. Flowers, 179 Ill. 2d 257, 262 (1997) (recognizing Terry).  The Terry standards have been codified in our Code of Criminal Procedure of 1963 (725 ILCS 5/107–14 (West 1998)).

	The stop under Terry must have been justified at its inception; a court objectively considers whether the police action was appropriate based on the facts available to the police officer.  Terry, 392 U.S. at 20-21, 20 L. Ed. 2d at 905-06, 88 S. Ct. at 1879-80; People v. Long, 99 Ill. 2d 219, 227-28 (1983).  To justify the intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences

therefrom, reasonably warrant that intrusion.  Terry, 392 U.S. at 20-21, 20 L. Ed. 2d at 905- 06, 88 S. Ct. at 1879-80; People v. Long, 99 Ill. 2d 219, 227-28 (1983).

	Under Terry, some quantum of individualized suspicion is required.  See United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 49 L. Ed. 2d 1116, 1130, 96 S. Ct. 3074, 3084 (1976).  In evaluating the validity of a Terry stop, we consider the totality of the circumstances.  United States v. Sokolow, 490 U.S. 1, 8, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989). 

	In this case, the Terry exception has been satisfied.  At the checkpoint, defendant and all other drivers were stopped after bypassing a phantom drug checkpoint and attempting 

to reach a remote road with no services.  These specific facts, taken together with rational

inferences, reasonably warrant a brief intrusion.   [These drivers were stopped for

questioning because the police reasonably believed that, by attempting to evade the

checkpoint, they possessed drugs.]  When viewing the totality of the circumstances, I believe

that each driver stopped was a suspect.  Those drivers who had good reason to exit the

interstate due to local business or residency were allowed to quickly extricate themselves

from suspicion and go about their way.

	City of Indianapolis v. Edmond is readily distinguishable from this case.  Edmond,  531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447.  The stop in Edmond was a suspicionless stop, but the stop in the instant case was based on an individualized reasonable suspicion. 

In Edmond, the checkpoints were established on Indianapolis roads, thoroughfares, to ensnare drivers in dragnet fashion.  Here, only suspect drivers were stopped at the end of a

seldom-used exit ramp while trying to reach a remote road with no services after evading a putative drug checkpoint.

	Defendant, having been constitutionally stopped, then admitted to possessing drugs.

At that time, probable cause was present to search his vehicle.  See People v. Tisler, 103 Ill. 2d 226, 236 (1984). 

	I see no need to perform a reasonableness analysis of the checkpoint itself by

balancing the need to search against the invasion that the search entails (see, e.g., Brown v. Texas, 443 U.S. 47, 50, 61 L. Ed. 2d 357, 361-62, 99 S. Ct. 2637, 2640 (1979); People v. Bartley, 109 Ill. 2d 273, 280 (1985)), because the constitutional exception under Terry has been satisfied based on a reasonable suspicion.  Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

	The members of the majority have followed the approach taken by the United States

Court of Appeals in United States v. Arvizu, 232 F.3d 1241, 1248-51 (9th Cir. 2000), and discredited by the United States Supreme Court.  They are really viewing the factors

individually in a vacuum, not considering them in terms of the totality of the circumstances

and then giving each factor a "no weight" innocent conclusion.  See United States v. Arvizu, No. 00-1519 (U.S. January 15, 2002).

	Although a seizure may not be justified by its success (see Byars v. United States, 273 U.S. 28, 29, 71 L. Ed. 520, 47 S. Ct. 248 (1927)), it is interesting that this checkpoint

yielded a 70% violation rate of nonlocal drivers, with more than 60% having narcotics, as

testified to by Corporal Kuhns at the suppression hearing.

	Therefore, I would affirm the circuit court's denial of defendant's motion to suppress

and affirm his conviction and sentence.

                                     	NO. 5-00-0420

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the 

							)  Circuit Court of

     Plaintiff-Appellee,				)  Effingham County.

							)

v.  							)  No. 98-CF-222

							)

BRETT W. RAY,					)  Honorable

							)  John P. Coady,

     Defendant-Appellant.				)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:	February 11, 2002

___________________________________________________________________________________

Justices:	Honorable Terrence J. Hopkins, J.

	Honorable Clyde L. Kuehn, J.

	Specially Concurs

	Honorable Thomas M. Welch, J.

	Dissents

___________________________________________________________________________________

Attorneys	Daniel M. Kirwan, Deputy Defender, Larry R. Wells, Assistant Defender, Office of  for	the State Appellate Defender, Fifth Judicial District, Route 15 East, P.O. Box 2430,

Appellant	Mt. Vernon, IL 62864-0047

___________________________________________________________________________________

Attorneys	Hon. Edward C. Deters, State's Attorney, Effingham County Courthouse, 101 North

for	4th Street, Suite 400, Effingham, IL 62401; Norbert J. Goetten, Director, Stephen E.

Appellee	Norris, Deputy Director, Sharon Shanahan, Contract Attorney, Office of the State's

	Attorneys Appellate Prosecutor, Route 15 East, P.O. Box 2249, Mt. Vernon, IL 

	62864

___________________________________________________________________________________