Docket No. 108459.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARC

A. CLOSE, Appellant.

Opinion filed October 21, 2010.

CHIEF JUSTICE FITZGERALD delivered the judgment of the

court, with opinion.

Justices Freeman, Thomas, Kilbride, Garman, and Karmeier

concurred in the judgment and opinion.

Justice Burke dissented, with opinion.

OPINION

Defendant, Marc A. Close, was charged by indictment with one

count of felony driving while license revoked (625 ILCS 5/6–303(d)

(West 2006)). The circuit court of La Salle County granted

defendant’s motion to quash arrest and suppress evidence, finding the

stop of defendant’s vehicle was unlawful because the officer had no

reasonable, articulable suspicion that defendant was driving outside

the terms of his restricted driving permit (RDP). The appellate court

reversed and remanded for further proceedings. 389 Ill. App. 3d 228.

For the reasons stated below, we affirm the judgment of the

appellate court.
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BACKGROUND

On August 7, 2007, defendant was indicted by a La Salle County

grand jury on one count of felony driving while license revoked. The

indictment alleged that on June 24, 2007, defendant knowingly drove

a 1987 Chevrolet vehicle upon a public highway in LaSalle, Illinois, at

a time when his license was revoked, and that the basis for the

revocation was a conviction for driving under the influence of alcohol.

The indictment also alleged that defendant previously had been

convicted of the offense of driving while license revoked, and that the

basis for that revocation was also a conviction for driving while under

the influence of alcohol. See 625 ILCS 5/11–501 (West 2006).

Defendant filed a motion to quash his arrest and suppress

evidence. At the hearing, Officer Thomas Belski of the LaSalle police

department testified that on Sunday, June 24, 2007, at 7:13 p.m. he

was on routine patrol. He ran a registration check of a 1987 Chevrolet

pickup on his mobile computer, which disclosed that the license of the

registered owner, defendant, had been revoked. The computer also

disclosed that the owner had been issued an RDP, but did not disclose

the terms of the RDP. Belski testified that the person driving the

pickup truck strongly resembled the photograph of the owner that he

was able to pull up on his computer. Belski stopped the vehicle, asked

defendant if he was aware his license was revoked, and subsequently

arrested defendant for driving while license revoked. Prior to the stop,

Belski did not observe defendant commit any traffic violation.

Defense counsel asked Belski, “The reason that you stopped the

vehicle [was] because you had a hunch that he [defendant] was not

driving within the periods of his restricted driving permit, isn’t that

correct?” Belski answered, “Yes, I did.” Belski later explained that

based on his experience, an RDP is typically issued for work or

hardship, and prior to stopping defendant, he took into account the

day of the week–Sunday; the time of day–7:13 p.m.; and defendant’s

clothing–a tank top, baseball cap, and sunglasses. 

Relying on People v. Johnson, 379 Ill. App. 3d 710 (2008),

defendant argued that Officer Belski’s hunch that defendant was

driving outside the parameters of his RDP did not provide an adequate

basis for the vehicle stop. The trial court agreed and granted

defendant’s motion to suppress. The State subsequently filed a

certificate of substantial impairment and notice of appeal. See 210 Ill.
 

1Though the appellate court majority quoted a version of section 6–303

that appeared in the 2007 supplement to West’s 2006 Illinois Compiled

Statutes (625 ILCS 5/6–303 (West Supp. 2007)), the statutory amendments

reflected in the 2007 supplement were not effective at the time of the vehicle

stop at issue here. Rather, the version of section 6–303 of the Illinois

Vehicle Code set forth in West’s 2006 Illinois Compiled Statutes (625 ILCS

5/6–303 (West 2006)) applies to the present case and it is that section which

will be cited in this opinion. We note, however, that the language in the

version quoted by the appellate court majority and the language in the

applicable version do not differ in any way material to the present litigation.

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2d R. 604(a)(1); People v. Young, 82 Ill. 2d 234, 247 (1980). 

The appellate court reversed and remanded for further

proceedings. 389 Ill. App. 3d at 234. The majority expressly declined

to follow Johnson and held that “the mere existence of an RDP does

not extinguish an officer’s reasonable and articulable basis to believe

the officer has witnessed a revoked driver traveling on a highway of

this state, in violation of the provisions of the Vehicle Code.” 389 Ill.

App. 3d at 233. The appellate court reasoned that the language of

section 6–303 of the Illinois Vehicle Code, which establishes the

offense of driving while license revoked, demonstrates that the

issuance of an RDP is a statutory defense and not an additional

element that the State is required to prove. 389 Ill. App. 3d at 232-33.

Accordingly, “an officer is not required to determine or verify the

scope of the restricted driving permit before performing a traffic stop

when a reasonable articulable basis exists to believe the license of the

person behind the wheel is revoked.” (Emphasis in original.) 389 Ill.

App. 3d at 233.1 The dissenting justice would have followed Johnson,

stating that “in order to effectuate a valid traffic stop, *** an officer

must have a reasonable articulable suspicion that the driver is

operating the vehicle outside the terms of his/her RDP.” 389 Ill. App.

3d at 237 (McDade, J., dissenting). 

We allowed defendant’s petition for leave to appeal. 210 Ill. 2d R.

315.
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ANALYSIS

Scope of Review

Before considering the propriety of the suppression order, we

address an argument defendant raised in his reply brief concerning the

scope of our review. As noted above, underlying the appellate court’s

opinion was its analysis of section 6–303 of the Illinois Vehicle Code

(625 ILCS 5/6–303 (West 2006)). Defendant contends that the parties

never raised a statutory construction issue involving section 6–303

and that the appellate court erred by raising this issue sua sponte. See

People v. Hunt, 234 Ill. 2d 49, 56 (2009) (appellate court’ssua sponte

consideration of issues not considered by the trial court and never

argued by the parties constituted error). Defendant further argues that

because the theory under which a case is tried cannot be changed on

review (Hunt, 234 Ill. 2d at 56), the State cannot raise before this

court an issue improperly considered by the appellate court. For these

reasons, defendant contends that we should not consider the meaning

of section 6–303. We disagree.

In the trial court, the State argued, inter alia, that the vehicle stop

was lawful, despite the existence of the RDP. On appeal, the State

developed this argument, maintaining that the statutory scheme

governing the issuance of RDPs places the burden on the revoked

driver to produce the RDP issued to him, but does not dissipate the

officer’s reasonable articulable suspicion that the license of the driver

has been revoked. The appellate court agreed with the State when it

concluded that “the mere existence of an RDP does not extinguish an

officer’s reasonable and articulable basis to believe the officer has

witnessed a revoked driver traveling on a highway of this state.” 389

Ill. App. 3d at 233. Though the appellate court relied on section

6–303, a section of the Illinois Vehicle Code to which the State did

not expressly refer in its appellate brief, section 6–303 is part and

parcel of the RDP statutory scheme on which the State generally

relied. Moreover, section 6–303 defines the offense at the heart of this

case–driving while license revoked–and any holding in this case must

be consistent with the statute. Thus, the appellate court did not err in

considering this section of the Illinois Vehicle Code and the statutory

construction issue, which the parties have fully briefed, is properly

before us.
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Motion to Suppress

When reviewing a trial court’s ruling on a motion to suppress, we

will accord great deference to the trial court’s factual findings and will

reverse those findings only if they are against the manifest weight of

the evidence; but we will review de novo the court’s ultimate decision

to grant or deny the motion. People v. Richardson, 234 Ill. 2d 233,

251 (2009); People v. Sutherland, 223 Ill. 2d 187, 196-97 (2006).

Defendant here does not challenge Officer Belski’s testimony

regarding the circumstances leading up to the vehicle stop. Where no

dispute exists as to the underlying facts, our task is to determine the

legal effect of those facts, i.e., whether the trial court’s ultimate ruling

that suppression was warranted was correct. Accordingly, our review

proceeds de novo. People v. Bunch, 207 Ill. 2d 7, 13 (2003). To the

extent disposition of this case turns on our review of the appellate

court’s construction of section 6–303 of the Illinois Vehicle Code

(625 ILCS 5/6–303 (West 2006)), review of that issue also proceeds

de novo. People v. Jones, 214 Ill. 2d 187, 193 (2005).

The law is settled that a vehicle stop constitutes a “seizure” of

“persons” within the meaning of the fourth amendment. Brendlin v.

California, 551 U.S. 249, 255, 168 L. Ed. 2d 132, 138-39, 127 S. Ct.

2400, 2406 (2007); Bunch, 207 Ill. 2d at 13. Accordingly, vehicle

stops are subject to the fourth amendment’s reasonableness

requirement (Whren v. United States, 517 U.S. 806, 810, 135 L. Ed.

2d 89, 95, 116 S. Ct. 1769, 1772 (1996)), which we analyze under the

principles set forth in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88

S. Ct. 1868 (1968) (People v. Cosby, 231 Ill. 2d 262, 274 (2008);

People v. Moss, 217 Ill. 2d 511, 526 (2005)). Under Terry, a police

officer may conduct a brief, investigatory stop of a person where 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. Gherna, 203 Ill. 2d 165, 177 (2003); People

v. Thomas, 198 Ill. 2d 103, 109 (2001). 

The investigatory stop must be justified at its inception. Terry, 392

U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879. “[T]he police

officer must be able to point to specific and articulable facts which,

taken together with rational inferences from those facts, reasonably

warrant that intrusion.” Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88

S. Ct. at 1880. The officer’s suspicion must amount to more than an
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inarticulate hunch (Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906, 88 S.

Ct. at 1880; Gherna, 203 Ill. 2d at 177), but need not rise to the level

of suspicion required for probable cause (United States v. Sokolow,

490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989)). In

judging the police officer’s conduct, we apply an objective standard:

“would the facts available to the officer at the moment of the seizure

*** ‘warrant a man of reasonable caution in the belief’ that the action

taken was appropriate?” Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at

906, 88 S. Ct. at 1880; accord Thomas, 198 Ill. 2d at 109.

The Terry standards have been codified in the Code of Criminal

Procedure of 1963 (725 ILCS 5/107–14 (West 2006)), and we apply

the same standards in determining the propriety of investigatory stops

under article I, section 6, of our state constitution (Ill. Const. 1970,

art. I, §6). Thomas, 198 Ill. 2d at 109; see also People v. Caballes,

221 Ill. 2d 282, 313-14 (2006) (reaffirming court’s position that the

search and seizure clause of our state constitution should be

interpreted in limited lockstep with the search and seizure clause of

the federal constitution). 

Defendant does not dispute that where a police officer has a

reasonable, articulable basis to believe that a driver is unlicensed, the

officer may lawfully conduct a vehicle stop. Delaware v. Prouse, 440

U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401 (1979).

Defendant argues, however, that where, as here, the officer is aware

that the driver has been issued an RDP, the officer must have a

reasonable, articulable suspicion that the driver is driving outside the

terms of his or her RDP in order to effect a lawful vehicle stop under

Terry. Relying on the Johnson opinion, defendant maintains that

“[w]hile Officer Belski may have guessed that Sunday afternoons are

times when many RDPs prohibit driving, that hunch alone is not

enough to give rise to reasonable suspicion.” 

In Johnson, the appellate court held, under facts virtually identical

to the present case, that the police officer lacked a reasonable,

articulable suspicion to stop the defendant’s vehicle on a Sunday

afternoon based on the officer’s suspicion that the RDP did not permit

the defendant to drive on Sundays. Though recognizing that the

officer was likely correct in believing that Sunday afternoons are times

when many RDPs prohibit driving, the Johnson court determined “that

insight was not enough to give rise to reasonable suspicion.” Johnson,
 

2Although driving while license revoked is generally a Class A

misdemeanor, the presence of other circumstances, including prior violations

(as is the case here), could result in a felony conviction. See 625 ILCS

5/6–303(d), (d–2), (d–3), (d–4), (d–5) (West 2006). 

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379 Ill. App. 3d at 712. The appellate court observed that while the

limited purposes for which an RDP may be issued make it “less likely”

that a person with an RDP will be driving within its terms on a Sunday

afternoon, they do not make it “improbable.” Johnson, 379 Ill. App.

3d at 713. Thus, the Johnson court affirmed the trial court’s order

quashing the defendant’s arrest and suppressing the evidence.

Johnson, 379 Ill. App. 3d at 716.

The State responds that Johnson was wrongly decided. Echoing

the view of the appellate majority here, the State maintains that if,

under section 6–303 of the Illinois Vehicle Code (625 ILCS 5/6–303

(West 2006)), the State is not required to prove that a defendant was

driving outside the terms of his or her RDP in order to prove the

offense of driving while license revoked, a fortiori, the officer need

not suspect that the person was driving outside the terms of his or her

RDP in order to effect a lawful vehicle stop where the officer has a

reasonable articulable suspicion that the driver’s license has been

revoked. We agree with the State and overrule Johnson.

Section 6–303 of the Illinois Vehicle Code defines the offense of

driving while license revoked:

“(a) Any person who drives or is in actual physical control

of a motor vehicle on any highway of this State at a time when

such person’s driver’s license, permit or privilege to do so or

the privilege to obtain a driver’s license or permit is revoked

or suspended as provided by this Code or the law of another

state, except as may be specifically allowed by a judicial

driving permit, family financial responsibility driving permit,

probationary license to drive, or a restricted driving permit

issued pursuant to this Code or under the law of another state,

shall be guilty of a Class A misdemeanor.” 625 ILCS 5/6–303

(West 2006).2

In People v. Turner, 64 Ill. 2d 183, 185 (1976), this court held

that under section 6–303, the elements of the offense are “(1) the act
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of driving a motor vehicle on the highways of this State, and (2) the

fact of the revocation of the driver’s license or privilege.” Though

Turnerinvolved a much earlier version of section 6–303, that version,

like the one applicable here, contained an RDP exception. See Ill. Rev.

Stat. 1973, ch. 951⁄2 , par. 6–303 (“[a]ny person who drives a motor

vehicle on any highway of this State at a time when his drivers license

*** is revoked ***, except as may be allowed by a restricted driving

permit ***, shall be guilty of a Class A misdemeanor”). Turner did

not, however, expressly determine whether the RDP exception

constitutes an additional element of the offense of driving while

license revoked, or is a matter of defense. The rule applicable to such

determinations is well established:

“[I]t is the rule in this State that where an act is made criminal,

with exceptions embraced in the enacting clause creating the

offense, so as to be descriptive of it, the People must allege

and prove that the defendant is not within the exceptions so as

to show that the precise crime has been committed. In other

words, where the exception is descriptive of the offense it

must be negatived in order to charge the defendant with the

offense. On the other hand, if the exception, instead of being

a part of the description of the offense, merely withdraws

certain acts or certain persons from the operation of the

statute it need not be negatived, and its position in the act,

whether in the same section or another part of the act, is of no

consequence. (People v. Saltis, 328 Ill. 494; People v.

Callicott, 322 id. 390; People v. Talbot, 322 id. 416; People

v. Butler, 268 id. 635; Sokel v. People, 212 id. 238.)

Exceptions are generally mere matters of defense. (Sokel v.

People, supra; Beasley v. People, 89 Ill. 571; Lequat v.

People, 11 id. 330.)” People ex rel. Courtney v. Prystalski,

358 Ill. 198, 203-04 (1934). 

Accord People v. Green, 362 Ill. 171, 175-76 (1935); People v.

Handzik, 410 Ill. 295, 306 (1951); People v. Laubscher, 183 Ill. 2d

330, 335 (1998).

Applying this rule, our appellate court in People v. Ellis, 71 Ill.

App. 3d 719, 720-21 (1979), held that the exception in section 6–303

“merely withdraws persons with restricted driving permits from the

operation of the statute and in no sense is descriptive of the offense.”
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In 2001, the appellate court revisited Ellis, and again held that the

exceptions in section 6–303, including the RDP exception, are not

part of the substantive offense of driving while license revoked, and

rejected the defendant’s argument that the State must prove that the

defendant did not have an RDP issued by another state. People v.

Rodgers, 322 Ill. App. 3d 199, 201-03 (2001). The Rodgers court

reasoned:

“[I]f a defendant merely drives on a public highway while

his license is revoked, he commits what is generally a criminal

act. That is, in the typical case, the commission of the crime

does not depend on the inapplicability of the exceptions. Thus,

the exceptions do not bear on the elements of the offense;

instead, they state only that particular defendants (those with,

e.g., restricted driving permits) are protected from liability.

Because the exceptions merely withdraw certain persons from

the scope of the statute, the State has no burden to disprove

them.” (Emphasis in original.) Rodgers, 322 Ill. App. 3d at

203.

We agree with Ellis and Rodgers that the RDP exception in

section 6–303 is not an element of the offense of driving while license

revoked. Thus, we reaffirm our holding in Turner that the elements of

the offense are “(1) the act of driving a motor vehicle on the highways

of this State, and (2) the fact of the revocation of the driver’s license

or privilege.” Turner, 64 Ill. 2d at 185. 

Defendant conceded at oral argument that the RDP exception is

not an element of the offense, but contends that the elements of the

offense are only relevant at trial and do not bear on whether the

vehicle stop was lawful under Terry principles. We disagree. If, under

Terry, we must consider whether, based on the facts available to him,

Officer Belski had a reasonable, articulable suspicion that defendant

committed or was about to commit a crime, then the conduct that

constitutes the crime is relevant. Accordingly, to effect a lawful Terry

stop of defendant on suspicion of driving while license revoked,

Officer Belski was required to have a reasonable articulable suspicion

that defendant was “driving a motor vehicle on the highways of this

State” and that defendant’s license was revoked. Turner, 64 Ill. 2d at

185. Officer Belski was not required to have a reasonable articulable

suspicion that defendant was not in compliance with the terms of his
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RDP, as that is not an element of the offense. We do not imply,

however, that a police officer cannot effect a lawful Terry stop

without first identifying a particular crime or considering whether the

circumstances he or she observed would satisfy each element of a

particular offense. Terry does not require that level of specificity or

suspicion.

An officer, of course, may not ignore facts which would dispel

suspicion of criminal wrongdoing. To illustrate, “if the officer knows

that the owner of a vehicle has a revoked license and further, that the

owner is a 22-year-old male, and the officer observes that the person

driving the vehicle is a 50- or 60-year-old woman, any reasonable

suspicion of criminal activity evaporates.” Minnesota v. Pike, 551

N.W.2d 919, 922 (Minn. 1996). Accord Armfield v. State, 918

N.E.2d 316, 321 n.7 (Ind. 2009); People v. Jones, 260 Mich. App.

424, 430 n.4, 678 N.W.2d 627, 631 n.4 (2004). To further illustrate,

if the officer is aware that the terms of the driver’s RDP allow him to

drive at the time and place in question, then no basis exists for

executing a Terry stop, in the absence of any traffic violation or

suspicion of other criminal wrongdoing.

Defendant directs our attention to section 6–205 of the Illinois

Vehicle Code, which sets forth the purposes for which an RDP may

be issued. Section 6–205 provides:

“[T]he court may recommend and the Secretary of State

in his discretion *** may *** issue *** a restricted driving

permit granting the privilege of driving a motor vehicle

between the petitioner’s residence and petitioner’s place of

employment or within the scope of the petitioner’s

employment related duties, or to allow transportation for the

petitioner or a household member of the petitioner’s family for

the receipt of necessary medical care or, if the professional

evaluation indicates, provide transportation for the petitioner

for alcohol remedial or rehabilitation activity, or for the

petitioner to attend classes, as a student, in an accredited

educational institution ***.” 625 ILCS 5/6–205(c) (West

2006).

Defendant maintains that in light of these established purposes for the

issuance of an RDP, unless Officer Belski was aware of the terms of

the RDP at the time of the vehicle stop, the officer “could not know
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whether or not the defendant was committing a crime.” Terry,

however, does not require that the officer “know” that the driver is

committing a crime. As the Supreme Court explained:

“The Fourth Amendment requires ‘some minimal level of

objective justification’ for making the stop. [Citation.] That

level of suspicion is considerably less than proof of

wrongdoing by a preponderance of the evidence. We have

held that probable cause means ‘a fair probability that

contraband or evidence of a crime will be found,’ [citation]

and the level of suspicion required for a Terry stop is

obviously less demanding than that for probable cause

[citation].” United States v. Sokolow, 490 U.S. 1, 7, 104 L.

Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989).

See also Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301,

309, 110 S. Ct. 2412, 2416 (1990) (recognizing that reasonable

suspicion is a less demanding standard than probable cause with

respect to the quantity, content and reliability of the underlying

information).

Moreover, the mere possibility that the RDP issued to defendant

allowed him to drive at the time and place that Officer Belski observed

him does not negate the officer’s reasonable suspicion that defendant

was driving on a revoked license. Police officers are “ ‘not required to

rule out all possibility of innocent behavior’ ” before initiating a Terry

stop. 4 W. LaFave, Search & Seizure §9.5(b), at 481 (4th ed. 2004),

quoting United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975).

As our own appellate court has aptly observed: “The purpose of a

Terry stop is to allow a police officer to investigate the circumstances

that provoke suspicion and either confirm or dispel his suspicions.”

People v. Ross, 317 Ill. App. 3d 26, 31 (2000). See also Florida v.

Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319,

1325-26 (1983) (plurality op.) (“investigative methods employed

should be the least intrusive means reasonably available to verify or

dispel the officer’s suspicion in a short period of time”); accord United

States v. Sharpe, 470 U.S. 675, 686, 84 L. Ed. 2d 605, 615-16, 105

S. Ct. 1568, 1575 (1985). 

Here, Officer Belski was aware that the license of the registered

owner of the vehicle had been revoked and the person driving the

vehicle strongly resembled the photograph of the owner. Viewed
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objectively, the facts available to Officer Belski were sufficient to

create the reasonable, articulable suspicion necessary to effect a Terry

stop. Although Officer Belski was also aware that defendant had been

issued an RDP, that fact alone would not cause reasonable suspicion

to evaporate, and Officer Belski could conduct a brief investigatory

stop to verify or dispel his suspicion that defendant was driving on a

revoked license. Accordingly, we affirm the judgment of the appellate

court reversing the trial court’s order granting defendant’s motion to

quash arrest and suppress evidence and remanding for further

proceedings. 

Affirmed.

JUSTICE BURKE, dissenting:

I would find that the totality of the circumstances in this case did

not amount to reasonable suspicion sufficient to support the stop. In

contrast to the majority, I would find that the officer’s knowledge of

the defendant’s restricted driving permit (RDP) is a relevant fact

which must be taken into account in analyzing the reasonableness of

the stop under Terry. Therefore, I respectfully dissent from the

majority opinion. 

The facts in this case are not in dispute. Officer Thomas Belski

was on routine patrol in an unmarked squad car in a residential area

of LaSalle, Illinois. He ran a registration check on defendant’s license

plate on his mobile computer. The computer showed that the

registered owner had a revoked driver’s license and an RDP but did

not show the details of the RDP. After confirming that the photograph

matched the driver, Officer Belski stopped the defendant and arrested

him for driving while license revoked. As he testified later, prior to the

stop, Officer Belski had a hunch that the defendant was driving

outside the scope of his RDP based on the fact that it was a Sunday

at 7:13 p.m., the defendant was wearing a tank top, baseball cap, and

sunglasses, and, in Officer Belski’s experience, RDP’s are issued only

for “work or hardships.” 

The majority holds that the facts were sufficient to support a Terry

stop because the facts known to the officer–that the registered owner
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had a revoked driver’s license and that the person driving the vehicle

strongly resembled the photograph of the owner–satisfied the elements

of the offense of driving while license revoked. Slip op. at 7-8, 11-12.

With regard to the RDP, the majority holds that “Officer Belski was

not required to have a reasonable articulable suspicion that defendant

was not in compliance with the terms of his RDP, as that is not an

element of the offense.” Slip op. at 9-10. This is so, explains the

majority, because an RDP is an exception to the offense which the

State does not have to prove at trial. Slip op. at 9.

I disagree with the majority’s analysis because it abandons and

does not even mention the “totality of the circumstances” test which

this court has consistently applied to review the propriety of Terry

stops. The majority’s unwarranted application of a new “elements of

the offense” test essentially permits spot-checks of every driver who

has been issued an RDP, without regard to any surrounding

circumstances. 

The determination of whether a seizure or stop is reasonable

involves a dual inquiry: “whether the officer’s action was justified at

its inception, and whether it was reasonably related in scope to the

circumstances which justified the interference in the first place.” Terry

v. Ohio, 392 U.S. 1, 19-20, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868,

1879 (1968). Under the first prong, “the police can stop and briefly

detain a person for investigative purposes if the officer has a

reasonable suspicion supported by articulable facts that criminal

activity ‘may be afoot,’ even if the officer lacks probable cause.”

United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S.

Ct. 1581, 1585 (1989), citing Terry, 392 U.S. at 30, 20 L. Ed. 2d at

911, 88 S. Ct. at 1884-85. “Courts have used a variety of terms to

capture the elusive concept of what cause is sufficient to authorize

police to stop a person. *** But the essence of all that has been

written is that the totality of the circumstances–the whole

picture–must be taken into account. Based upon that whole picture

the detaining officers must have a particularized and objective basis

for suspecting the particular person stopped of criminal activity.”

United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 629,

101 S. Ct. 690, 695 (1981). See also United States v. Lawshea, 461

F.3d 857, 859 (7th Cir. 2006) (in evaluating the reasonableness of a

Terry stop, we examine “the totality of the circumstances known to
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the officer at the time of the stop”); United States v. Jackson, 300

F.3d 740, 745-46 (7th Cir. 2002) (the “totality of the circumstances”

include the experience of the officer, the behavior and characteristics

of a suspect, whether the location of the stop is a “high crime” area,

and an officer’s prior dealings with the individual or knowledge of a

criminal record).

Until today’s majority decision, this court has consistently applied

the “totality of the circumstances” test to fourth amendment

challenges of stops and seizures. See People v. Moss, 217 Ill. 2d 511,

529-30 (2005) (we judge the reasonableness of the search by its

particular facts and circumstances, using the “totality of the

circumstances” analysis); People v. Lee, 214 Ill. 2d 476, 488 (2005)

(“the totality of the circumstances, including the citizen complaint,

were certainly enough to heighten the officers’ suspicion and warrant

further investigation”); People v. Thomas, 198 Ill. 2d 103, 110 (2001)

(“[v]iewed as a whole, the situation confronting the police officer

must be so far from the ordinary that any competent officer would be

expected to act quickly”); People v. McGowan, 69 Ill. 2d 73, 78

(1977) (applying the same test).

In looking at the totality of the circumstances, we must include in

our analysis all of the facts known to the officer prior to the stop. It

is clear from the Supreme Court’s discussion of the facts in Terry that

all surrounding circumstances are relevant, including facts which

dispel an officer’s reasonable suspicion that the defendant is engaged

in criminal activity. In Terry, the police officer observed the defendant

repeatedly pacing in front of a store, peering into the store window,

and conferring with two other men. In the officer’s experience, the

defendant’s actions were consistent with “casing a job.” The Court

held that the subsequent stop and search of the defendant were

reasonable under the fourth amendment:

“We think on the facts and circumstances Officer McFadden

detailed before the trial judge a reasonably prudent man would

have been warranted in believing petitioner was armed and

thus presented a threat to the officer’s safety while he was

investigating his suspicious behavior. The actions of Terry and

Chilton were consistent with McFadden’s hypothesis that

these men were contemplating a daylight robbery–which, it is

reasonable to assume, would be likely to involve the use of
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weapons–and nothing in their conduct from the time he first

noticed them until the time he confronted them and identified

himself as a police officer gave him sufficient reason to

negate that hypothesis. Although the trio had departed the

original scene, there was nothing to indicate abandonment of

an intent to commit a robbery at some point. Thus, when

Officer McFadden approached the three men gathered before

the display window at Zucker’s store he had observed enough

to make it quite reasonable to fear that they were armed; and

nothing in their response to his hailing them, identifying

himself as a police officer, and asking their names served to

dispel that reasonable belief.” (Emphases added.) Terry, 392

U.S. at 28, 20 L. Ed. 2d at 910, 88 S. Ct. at 1883. 

In the case at bar, the majority acknowledges that “[a]n officer, of

course, may not ignore facts which would dispel suspicion of criminal

wrongdoing.” Slip op. at 10. The majority offers the following

illustration of this principle: “if the officer is aware that the terms of

the driver’s RDP allow him to drive at the time and place in question,

then no basis exists for executing a Terry stop, in the absence of any

traffic violation or suspicion of other criminal wrongdoing.” Slip op.

at 10. The majority then states that “the mere possibility that the RDP

issued to defendant allowed him to drive at the time and place that

Officer Belski observed him does not negate the officer’s reasonable

suspicion that defendant was driving on a revoked license,” and that

“[a]lthough Officer Belski was also aware that defendant had been

issued an RDP, that fact alone would not cause reasonable suspicion

to evaporate.” (Emphases added.) Slip op. at 11, 12. The majority

fails to recognize, however, that the officer’s knowledge of the

defendant’s RDP is a fact which dispels suspicion of criminal

wrongdoing. Thus, it is relevant to whether the officer had reasonable

suspicion that the driver was engaged in criminal activity.

“Under Terry, a police officer may briefly stop a person for

temporary questioning if the officer has knowledge of sufficient

articulable facts at the time of the encounter to create a reasonable

suspicion that the person in question has committed or is about to

commit a crime.” People v. Lee, 214 Ill. 2d 476, 487 (2005). If the

defendant was driving within the terms of his RDP, he was not

committing a crime. Thus, the officer’s knowledge of the defendant’s
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RDP, without knowing the terms of the permit, reduced the likelihood

that defendant was committing a crime. I agree with the dissenting

justice in the appellate court that “[d]riving on a revoked license is not

a crime if the individual is driving within the scope of his/her RDP.

Thus, in order to effectuate a valid traffic stop, I believe an officer

must have a reasonable articulable suspicion that the driver is

operating the vehicle outside the terms of his/her RDP.” (Emphasis

added.) 389 Ill. App. 3d at 237 (McDade, J., dissenting).

The majority considers only two facts in concluding that the facts

were sufficient to create the reasonable, articulable suspicion

necessary to effect a Terry stop: (1) that the license of the registered

owner of the vehicle had been revoked; and (2) that the person driving

the vehicle strongly resembled the photograph of the owner. Under

the “totality of the circumstances” test, however, all of the

surrounding facts must be included in the analysis. In addition to the

two facts above, Officer Belski knew that: (3) the registered owner of

the vehicle had an RDP; (4) the driver was driving the vehicle on a

Sunday at 7:13 p.m.; and (5) the driver was wearing sunglasses, a

baseball cap, and a tank top.

Taking into account the additional facts not considered by the

majority, I would hold that the facts do not support a finding of

reasonable suspicion in the case at bar. The facts known to the officer

in this case did not amount to more than a mere “hunch” that the

defendant was committing a crime. The fourth amendment requires

that the police officer articulate something more than an “inchoate and

unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 20 L.

Ed. 2d at 909, 88 S. Ct. at 1883. “[I]n justifying the particular

intrusion the police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21,

20 L. Ed. 2d at 906, 88 S. Ct. at 1880. “The process does not deal

with hard certainties, but with probabilities. Long before the law of

probabilities was articulated as such, practical people formulated

certain common sense conclusions about human behavior; jurors as

factfinders are permitted to do the same–and so are law enforcement

officers.” Cortez, 449 U.S. at 418, 66 L. Ed. 2d at 629, 101 S. Ct. at

695.

I agree with the appellate court in Johnson, which held under
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similar facts that the limited allowable purposes for an RDP “make it

less likely that a person with an RDP will be driving within the scope

of an RDP on a Sunday afternoon, but they do not make it

improbable.” People v. Johnson, 379 Ill. App. 3d 710, 713 (2008).

The facts in the present case do not support the particularized

suspicion required for a stop. See Johnson, 379 Ill. App. 3d at 713-

14. It is entirely possible that the defendant was driving to or from

work on a Sunday at the time his vehicle was stopped. At the

suppression hearing, Officer Belski admitted that he had no way of

knowing before he stopped defendant whether defendant was working

or whether he had other clothes in his car. While I would not require

that the officer know the exact terms of the RDP before stopping a

driver, I believe there must be more specific facts than are present in

this case to support the stop. 

Accordingly, I would reverse the judgment of the appellate court

and affirm the trial court’s order granting defendant’s motion to quash

arrest and suppress evidence.