201 9 IL App ( 3d ) 180396 Opinion filed May 6, 2019

_____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT 2019
THE PEOPLE OF THE STATE OF ) ILLINOIS, ) ) Plaintiff -Appellant, ) ) v. ) ) ) BENJAMIN C. BAILEY , ) ) Defendant

- Appellee

. ) Appeal from the Circuit Court of the 12th Judicial Circuit, Will County , Illinois , Appeal No. 3-18-0396 Circuit No s. 17- DT -1028, 17- TR -61555, 17- TR -61556 and 17- TR -61557 Honorable Derek W. Ewanic , Judge, P residing.

_____________________________________________________________________________ JUSTICE CARTER delivered the judgment of the court, with opinion Justice s McDade and O’Brie n concurred in the judgment and opinion.

_____________________________________________________________________________ O PINION ¶ 1 After defendant , Benjamin C. Bailey, was charged with driving under the influence of alcohol (DUI), the circuit court granted his motion to suppress evidence. The State filed a certificate of substantial impairment, and th is appeal followed. We affirm. ¶ 2 I. BACKGROUND ¶ 3 The State charged defen dant with two counts of DUI (625 ILCS 5/11- 501(a)(1), (a)(2) (West 2016)), as well as other traffic offenses. Defendant filed a motion to suppress evidence, alleging that the officer did not have probable cause to arrest him.2 ¶ 4 At the hearing on defendant’s motion, O fficer Terry Bailey of the Romeoville Police Department testified that he observed defendant driving a pickup truck at approximately 5 p.m. on September 10, 2017. Defendant was driving at a speed above the posted speed limit. Bailey agreed that s peeding in itself was not an indicator of impairment. Bailey activated the lights in his squad car to initiate a traffic stop. He testified that defendant responded appropriately, indicating to him with a wave that he saw the lights and would turn off of the busy ro ad that they were traveling on. ¶ 5 When Bailey approached defendant’s vehicle , he first noticed that defendant “had an orange, greasy substance in his beard,” which appeared to be some sort of food. Bailey asked defendant for his driver’s license and proof of insurance. Bailey testified that defendant’s “hands

were very slow and deliberate” as he retrieved those items, but that defendant did not drop or fumble anything. He also noticed that defendant seemed “to be staring almost through me *** as if he was having a hard time focusing.” Bailey asked defendant about the substance in his beard and learned that it was sauce from B uffalo Wild Wings, a restaurant at which defendant had recently eaten. Bailey testified that defendant had been unaware of the sauce in his beard. Bailey found it “unusual in general” that a person would have food on their face and not know about it. ¶ 6 Bailey testified that he did not notice anything unusual about defendant’s eyes and did

not observe anything unusual about defendant’s speech. He did notice a “sweet odor” emanating from the vehicle, but he did not know what the odor was. Bailey also observed a purple can in the cup holder, but cou ld not see the label or discern what was in the can. Bailey did not ask defendant what , if anything, was in the can. ¶ 7 After asking for defendant’s license and proof of insurance, Bailey attempted to distract defendant from those tasks by asking a question. He explained that he used this distraction3 method as a way to gauge defendant’s cognitive ability

. Bailey testified that defendant “wasn’t able to divide his attention between what I had asked and what he was supposed to be doing.” Bailey then returned to his squad car and requested a second officer to the scene. Bailey began writing a ticket, “gave [def endant] a few minutes,” then returned to defendant’s vehicle to deter mine if defendant had located his insurance card. Defendant provide d an insurance card, but it was expired. Bailey testified that he then returned again to his squad car “until Officer [Daniel] Ponzi arrived.” ¶ 8 Once Ponzi arrived on the scene, the two officers approached defendant’s vehicle. Bailey testified that “Officer Ponzi immediately asked [defendant] about *** open alcohol beverage containers *** on th e back flo orboard.” Bailey had not previously noticed anything in the backseat. Bailey testi fied that he could not tell if the cans were alcoholic beverage containers, but that “Officer Ponz i said that he could.” Bailey then noticed that the purple can he observed w hen he first approached defendant’s vehicle was no longer there. Bailey opined that the movement of the can indicated that defendant was attempting to hide it. ¶ 9 Bailey testified that he asked defendant to turn off the truck and give Bailey the keys. Defendant complied , and Bailey placed the keys on the top of the truck. Bailey testified that he then “attempted to open the back door to seize the cans that Of ficer Ponzi had seen.” After discovering that the door was locked, Bailey asked defendant to unlock the doors. Defendant did not comply. Bailey asked a second time, and again defendant did not comply. Bailey testified: “ I had seen there was a remote control for the vehicle on the key chain, so I used that to unlock the door. I opened the door and, yes, the re were Lime -A- Rita[,] Straw

- Ber

- Rita [,] and Grape -A- Rita alcoholic beverage ca n s that were open in the back seat [ sic ] area.” Bailey observed that the can he had noticed earlier in the cup holder was standing upright on the floorboard.4 ¶ 10 Bailey testified that he asked defendant to perform a series of tasks to determine if he was impaired b y alcohol. These tasks included a counting test, an alphabet test, and a finger

movement test. Defendant failed to perform each of the tasks as instructed. When defendant refused to step out of the vehicle to perform standardized sobriety tests, Bailey placed him under arrest for DUI. ¶ 11 When defense counsel asked Bailey to elaborate on defendant’s performance on the tasks, Bailey interjected , “Well, one of the other things that I had noticed was when I returned to the truck, he had now put sunglasses on as if trying to hide his eyes from me. And he had al so begun to chew gum.” Bailey testified on cross - examination that it is common for people to hide their eyes or attempt to mask odors on their breath with mints or gum to make it more difficult for officers to discern clues of impairment. ¶ 12 Bailey further testified that Ponzi did not tell him about the cans Ponzi observed on the back floorboard. Instead, he only heard Ponzi ask defendant about them. When asked if he requested that defendant unlock the truck because Bailey had “seen the cans,” Bailey responded , “Yeah, I was aware of the cans there, yes.” He testified that the cans were contraband and were in plain view. Each of the cans had a “slight residue” in them , except the one that Bailey had previously observed in the cup holder, which was approximately half full. Bailey observed that the can emitted a sweet odor like that which he had noticed when he first approached the vehicle. ¶ 13 At the conclusion of Bailey’s testimony, the State moved for a directed verdict. Defense counsel argued that Bailey had acted without probable cause when he took defendant’s keys and unlocked his truck . He also argued that the observations made a fter that point still did not amount to probable cause. The court denied the State’s motion, finding that defendant had made

a prima facie case.5 ¶ 14 The State called Ponzi, who testified that he was called to the scene of a traffic stop by Bailey at approxima tely 5 p.m. on September 10, 2017. Upon his arrival, he approach ed the passenger side of defendant’s vehicle. Ponzi testified that when he did, he “saw an open aluminum cans [ sic ] in the back seat [ sic ] .” On direct examination, the following exchange occurred :

“ [THE STATE]: [C]ould you, at that time, see how many cans were back there? [PONZI ]: I couldn’t identify ’em, no. [THE STATE]: Could you identify what the cans were? [PONZI]: I believe able to identify a couple of them, yes. [THE STATE ]: Okay. And what did you identify them as? [PONZI]: Alcoholic beverages. One of ‘em I could see was a larger can, it was a
Straw

- Ber

- Rita. [THE STATE ]: Okay. And you could see there were other cans next to it? [PONZI]: Correct. [THE STATE]: Could you tell if the ca ns were open or closed at that point? [PONZI]: I could tell that

— at least the one was open.” ¶ 15 On cross

- examination, Ponzi agreed that he could not determine from outside the vehicle whether the cans he saw contained any alcohol. Defense counsel then asked if having open, empty cans was illegal. Ponzi replied: “It’s an open alcohol contai ner.” ¶ 16 In ruling on defendant’s motion, the court observed that Bailey had never testified as to what question he asked of defendant when he was attempting to distract him. The court also noted that defendant had a full beard and that it would be easy to not notice that sauce was on it. The court found that a reasonable person in defendant’s position would feel that he was under6 arrest and not free to leave at the time Baile y took the keys to his vehicle. The court concluded: “I am going to grant the defendant’s motion to suppress based on the fact that there was no probable cause to arrest the defendant at the time [Bailey] took the keys from him. ” Finally, in granting the motion to suppress, the court observed that the cans that were seized from defendant’s vehicle were “certainly *** seized *** after the defendant was placed, unlaw fully, under arrest.” ¶ 17 The State filed a motion to reconsider. After a hearing, the court denied that motion. In so doing, the court commented that Bailey had put undue weight on the sauce in defendant’s beard. The court also found that Bailey’s suggestion that defendant’s use of sunglasses was indicative of possible impairment hurt Bailey’s credibility. The court again found that Bailey lacked probable cause at the time he took defendant’s keys. The court continued: “[W]hen [Bailey] ordered the defendant to give him his keys, he changed the nature of the stop from a stop for a traffic violation to a DUI investigation without reasonable suspicion

— in the C ourt’s opinion without reasonable suspicion to do so. And that’s why I granted the motion initially.” Continuing its remarks, the court once again stressed that defendant would not feel free to leave at the point Bailey took his keys. ¶ 18 II. ANALYSIS ¶ 19 In this interlocutory appeal, the State contends that the circuit court erred in granting defendant’s motion to suppress, arguing that Bailey did, in fact, have probable cause to arrest defendant at the en d of the encounter. ¶ 20 When reviewing the circuit co urt’ s ruling on a motion to suppress evidence, we apply a

two

- part standard of review

. People v. Luedemann , 222 Ill. 2d 530, 542 (2006). Findings of fact7 made by the circuit court are reviewed for clear err or and only reversed if they are against the manifest weight of the evidence. Id. However, the ulti mate decision of whether suppression is warranted is a question of law that is reviewed de novo

. People v. Harris , 228 Ill. 2d 222, 230 (2008). “A reviewing court, however, remains free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions when deciding what relief should be granted.” Luedemann , 222 Ill. 2d at 542 (citing People v. Pitman , 211 Ill. 2d 502, 512 (2004)). ¶ 21 In its opening brief, the State asserts that “[t]he evidence was overwhelming that Officer Bailey had probable cause to arrest defendant for DUI.” From there, the State recites the full body of evidence, including Bailey’s entry into defendant’s vehicle, his observation of alcoholic beverage cans, his discovery of alcohol in one can and residue in the others, defendant’s performance on the nonstandardized tasks, and defendant’s refusal to perform standardized field sobriety tests. After this summa ry, the State concludes: “The State submits that the above facts and circumstances known to the police officer at the time of the arrest were sufficient to warrant a person of reasonable caution to believe that defendant was driving under the influence of alcohol.” ¶ 22 The State’s argument necessarily assumes that defendant was not under arrest when Bailey took his keys and that Bailey did not need probable cause at that moment. That assumption, however, runs contrary to the circuit court’s ruling. The court found that a reasonable person in defendant’s position would not feel free to leave at the moment his keys were confiscated, that Bailey’s actions therefore amounted to an arrest, and that Bailey thus needed probable cause. Furthermore, the State offers no argument and no citation to authority concerning whether Bailey’s actions c onstituted an arrest or if he had probable cause to arrest at the time he took defendant’s keys. Accordingly, the State has forfeited those arguments. Ill. S.8 Ct. R. 341(h)(7) (eff. May 25, 2018) (“Points not argued are forfeited and shall n ot be raised in the reply brief ***.”); Ill. S. Ct. R. 612(b)(9) (eff. July 1, 2017) (applying Rule 341 to criminal appeals); People v. Edwards , 2012 IL App (1st) 091651, ¶ 29 (commenting, in finding that appellant forfeited argument pursuant to Rule 341(h)(7), that “ [a] reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive arguments presented; this court is not a repository into which an appellant m ay foist the burden of argument and research ; it is neither the function nor the obligation of this court to act as an advocate or search the record for error”). ¶ 23 Had the State made those necessary arguments, they would have been unavailing. For purposes of the fourth amendment, an individua l is “seized” when an officer “ ‘ by means of physical force or show of authority, has in some way restra ined the liberty of a citizen. ’ ” Florida

v. Bostick , 501 U.S. 429, 434 (1991) ( quoting Terry v. Ohio , 392 U.S. 1, 1 9 n.16 (1968) ). “[T] he reasonableness in all the circumstances of the particular gov ernmental invasion of a citizen’ s personal security.” Terry , 392 U.S. at 19. Reasonableness depends “on a balance between the pub lic interest and the individual’ s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce , 422 U.S. 873, 878 (1975). ¶ 24 Even if the confiscation of defendant’s keys could be deemed reasonable based on the legitimate public interest in o fficer safety, Bailey’s actions afterward are significant. Rather than merely taking those keys to prevent defenda n t from speeding away, Bailey used them to unlock defendant’s vehicle so that he could conduct a search. ¶ 25 “[L]aw enforcement officers may unde rtake a warrantless search of a vehicle if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize.” People v. James , 163 Ill. 2d 302, 312 (1994). Where an item is9 seen in plain view , it must be “ ‘ immediately apparent ’ ” that the object is contraband or eviden ce of a crime before the object’s presence will establish probable cause for a search. Texas
v. Brown , 460 U.S. 730, 737 (1983) ( quoting Coolidge v. New Hampshire , 403 U.S. 443, 466 (1971)) ; see also People v. Nadermann , 309 Ill. App. 3d 1016, 1020 (2000) (“[T]he so

- called ‘automobile exception,’ provides that a warrantless search of an automobile is reasonable where the police have probable cause to believe that the vehicle contains contraband.”). ¶ 26 Here, it was not immediately apparent to either Bailey or Ponzi that defendant’s vehicle contained any contraband. While Ponzi initially testified that he notice d multiple cans of alcoholic beverage s on defendant’s back seat floorbo ard, he then admitted that he could only actually read one larger can , labeled “ Straw

- Ber

- Rita.” Further, there was no testimony provided as to whether Ponzi could determine if that can was open. Ponzi only testi fied that he “could tell that

— at least the o ne was open.” It is unclear if “the one” can to which Ponzi was referring was the Straw

- Ber -Rita, the purple can Bailey had previously observed, or another of the cans. ¶ 27 Section 11

- 502 of the Illinois Vehicle Code states that “no driver may transport, carr y, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.” 625 ILCS 5/11- 502(a) (West 2016). Contrary to Ponzi’s answer on cross

- examinat ion (see supra ¶ 15 ), section 11 -502(a) turns on the actual presence of alcohol, not merely the container. Ponzi did not actually testify that he observed an open can that he knew to be one of an alcoholic beverage. More importantly, f rom P onzi’s vantage point outside defendant’s vehicle, he had no way of knowing if any open can contained anything. Thus, the incriminating nature of the can was not immediately apparent , as would be required for the can alone to allow officers to search defendant’s vehicle

. Brown , 460 U.S. at 737.10 ¶ 28 We also note that none of Bailey’s observations leading up to the point he entered defendant’s vehicle contributed significantly to potential probable cause. As the circuit court itself noted, the presence of food remnants in defendant’s beard is not at all relevant. Further, defendant’s use of sunglasses and gum is not particularly telli ng, especially considering that defendant only began using those items after Bailey already had the opportunity to observe his
eyes and breath. To that point, Bailey testified that defendant’s eyes were not glassy or bloodshot and that he detected no odor of alcoholic beverages, either from defendant’s breath or elsewhere.
Th at defendant was apparently distracted by Bailey’s intentional attempts to distract him is also not indicative of the commission of any crime. While Bailey did observe that defendant moved his hands slowly and seemed to stare through him, these vague and subjective observations could only contribute minimally to a conclusion t hat defendant was impaired

. Such observations were even less relevant to the question of whether the can in defendant’s backseat actually contained any alcoholic liquor. In sum, the totality of Bailey’s and Ponzi’s observations up to that point, including the potentially empty alcoholic beverage can, did not rise to the level of probable cause allowing them to enter defendant’s vehicle without a warrant. ¶ 29 In closing, we recognize that the State raises an additional argument for the first time in its reply brief. Citing the circuit court’s comments in denying the State’s motion to re consider, the State argues that the court’s ruling was “legally incorrect.” The State contends that the court’s observation that Bailey changed the nature of the stop (see supra ¶ 17 ) is a reference to an outdated requirement from the second prong of Terry , 392 U.S. 1, which was no longer applicable at the time of the traffic stop. See Harris , 228 Ill. 2d at 238

- 40 . The State contends that this ruling alone requires rem and.11 ¶ 30 Initially, the State has forfeited this argument, having not raised it in its initial brief. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). Substantively, the State’s argument is also inaccurate. The circuit court’s references to the changing nature o f the stop occurred only at the hearing on the State’s motion to reconsider. The court repeatedly made clear, both at the actual hearing on defendant’s motion to suppress and later at the hearing on the State’s motion, that it was
suppr essing the evidence because (1) Bailey’s seizure of defendant’s keys was t antamount to an arrest and (2) Bailey lacked probable cause at that time. Finally, and most importantly , a reviewing court is concerned with the circuit court’s judgment, not its reasoning, and can ther efore affirm on any basis found in the record. E.g. , People v. Wuckert , 2015 IL App (2d) 150058, ¶ 18. ¶ 31 III. CONCLUSION ¶ 32 The judgment of the circuit court of Will County is affirmed

. ¶ 33 Affirmed

.