No. 2--01--0660		

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

	  )  

	Plaintiff-Appellee,	)	 

                                )                

v.                              	)	No. 00--CF--2645

	)

KAREN ISAAC,      	)	Honorable

	)	Ann Brackley Jorgensen,

	Defendant-Appellant.	)	Judge, Presiding.

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	JUSTICE GROMETER delivered the opinion of the court:

	Following a stipulated bench trial, defendant, Karen Isaac,

was convicted of driving under the influence of drugs or alcohol

(625 ILCS 5/11--501(a)(5) (West 2000)) and unlawful possession of

a controlled substance (720 ILCS 570/402(c) (West 2000)) and

sentenced to 24 months' probation.  She appeals, contending that

(1) the trial court erred in denying her motion to quash her arrest

and suppress evidence because the arresting officer did not have

reasonable grounds to stop her car, and (2) the court erred in

conducting a bench trial without determining that defendant had

knowingly waived a jury trial.

	Defendant was arrested following a traffic stop.  She moved to

quash the arrest and suppress evidence.  At the hearing, the

parties stipulated to the testimony of Bloomingdale police officer

Tony Pagan.  According to the stipulation, Pagan would have

testified that he was on routine patrol at about 3 a.m. on October 1, 2000.  He was driving west on Lake Street, which in that area has two westbound lanes and a speed limit of 40 miles per hour.  In

Pagan's opinion, the regular flow of traffic on that section of

Lake Street is 45 to 50 miles per hour.  The weather that morning

was clear and road conditions were normal.

	Driving in the westbound curb lane, Pagan pulled up behind a

silver Buick that appeared to be traveling below the speed limit. 

He paced the car and found it was going about 30 miles per hour. 

As he did this, cars began to back up behind him until about six

vehicles, not including the officer's squad car, reduced their

speed behind the Buick.

	According to the written stipulation in the record, "in

addition to obseving [sic] the congestion of traffic behind his vehicle, [Pagan] formulated a subjective concern over why the Buick

was traveling below the posted speed limit, and, accordingly,

effected a traffic stop."  Defendant was the driver of the Buick. 

Ultimately, Pagan arrested her for driving under the influence and

possession of a controlled substance.  He also issued her a ticket

for violating the "minimum speed regulation."  (The stipulation

cites to "625 ILCS 511--600(a)," but presumably refers to section

11--606(a) (625 ILCS 5/11--606(a) (West 2000)), which prohibits

driving so slowly as to impede the flow of traffic.)

	The trial court denied the motion to quash and suppress. 

Citing People v. Quigley, 226 Ill. App. 3d 598 (1992), the court ruled that the stop was justified by the officer's community

caretaking function, implicitly rejecting the State's contention

that the purported traffic violation justified the stop.  The court denied defendant's motion to reconsider.  Following a stipulated

bench trial, the court found defendant guilty.  Defendant timely

appeals.

	Defendant contends that the court erred in denying her motion

to quash and suppress because the officer lacked reasonable grounds

for the traffic stop.  Defendant argues that this case is

indistinguishable from People v. Dionesotes, 235 Ill. App. 3d 967 (1992), which held that merely driving slowly did not provide

reasonable grounds for a traffic stop.  The State responds that

this case is distinguishable from Dionesotes because the officer reasonably suspected defendant of violating a specific traffic law

and issued a ticket for that offense.

	Generally, a stop for a minor traffic violation is considered

a Terry stop (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)).  People v. Smith, 315 Ill. App. 3d 772, 775 (2000).  A Terry stop is permissible if the officer has a reasonable suspicion "that the person has committed, or is about to

commit, a crime."  People v. Brownlee, 186 Ill. 2d 501, 518 (1999).  	In reviewing a ruling on a motion to suppress and to quash

arrest, we must accept the trial court's factual findings unless

they are against the manifest weight of the evidence.  People v. Gonzalez, 324 Ill. App. 3d 15, 18 (2001).  If we accept the trial court's findings, we review de novo whether suppression is warranted under these facts.  People v. Gonzalez, 184 Ill. 2d 402, 411-12 (1998).  Because the parties here proceeded on stipulated

evidence, the trial court's fact-finding role was limited and,

giving appropriate weight to the inferences the trial court drew from the facts, our primary function is to review de novo whether the facts justified the stop at issue.

	In Dionesotes, an officer observed defendant driving about 10 miles per hour on a residential side street where the speed limit

was 25 miles per hour and then come to a complete stop for more

than a minute.  We rejected the contention that defendant's driving

justified a traffic stop, holding that "unusual behavior alone does

not necessarily support a reasonable suspicion that a crime has

occurred."  Dionesotes, 235 Ill. App. 3d at 970.

	In Dionesotes, the officer did not identify a specific offense she thought defendant was committing, but merely found his behavior

"unusual."  Of course, observing a driver violating a statute

warrants a traffic stop.  See Smith, 315 Ill. App. 3d at 775.  However, at a minimum, the officer must reasonably believe that the

driver is violating a traffic law.

	Here, the officer ticketed defendant for violating section 11-

-606(a) of the Vehicle Code.  That section prohibits driving "at

such a slow speed as to impede or block the normal and reasonable

movement of traffic except when reduced speed is necessary for safe

operation of [a] vehicle or in compliance with law."  625 ILCS

5/11--606(a) (West 2000).

	The issue here is whether defendant was actually impeding any

traffic.  Although the undisputed facts show that six cars were

lined up behind defendant and Officer Pagan, the undisputed facts

also show that the road had two westbound lanes.  Why the other

cars did not simply use the other lane to pass is not clear.  Defendant surmises that the other drivers were reluctant to pass a

squad car at 3 a.m.  At any rate, because Pagan came up directly

behind defendant, it appears that no cars were backed up behind her

before Pagan started following her.

	We are aware of no reported Illinois case in which a violation

of section 11--606(a) was the basis for a traffic stop.  Cases from

other jurisdictions have held that "impeding traffic" statutes may

be the basis for a valid traffic stop if there is evidence that a

defendant's slow driving was directly responsible for slowing other

traffic.  See State v. Haataja, 611 N.W.2d 353, 355 (Minn. App. 2000) (evidence that traffic was "backed up" behind defendant);

Ledford v. State v. Ledford, 237 Ga. App. 712, ___714, 516 S.E.2d 565, 567 (1999) (evidence that truck slowed down behind defendant; moreover no

seizure occurred because officer merely approached defendant's

stopped car to ask questions).

	On the other hand, in State v. Hagerty, Nos. 2001--P--0083, 2001--P--0084 cons. (Ohio App. 2002), an officer followed

defendant's car on a four-lane highway to gauge its speed.  The

court noted that the only car actually impeded was that of the

officer and he could easily have gone around her.  The only reason

that he followed her was to track her speed, not because he was

impeded.  In Richardson v. State, 39 S.W.3d 634 (Tex. App. 2000), the court found a traffic stop for allegedly impeding traffic

unreasonable where "there was little or no traffic on the road for

appellant to impede."  A videotape showed only one car pass

defendant and no other cars following or waiting to pass. 

Richardson, 39 S.W.3d at 639.

	Here, it was not reasonable to believe that defendant was

violating the statute against impeding traffic.  Although at least

six cars were driving behind her, it appears that they could simply could

have gone around her in the other westbound lane.

	The stipulated evidence shows that the officer's primary

concern was not a statutory violation, but curiosity about why

defendant was driving the way she was.  According to the

stipulation, in addition to observing the "congestion of traffic" behind his vehicle, the officer "formulated a subjective concern

over why the Buick was traveling below the posted speed limit." 

The ticket for the minimum speed violation appears to have been an

afterthought.

	To hold otherwise would give police virtually unfettered

discretion to stop a vehicle at any time.  A driver traveling one

mile per hour above the posted speed limit would be speeding while

one traveling one mile per hour below the limit would be guilty of

impeding traffic.  Given that pretextual stops--using a minor

traffic violation to attempt to discover evidence of a more serious

offense--are constitutionally permissible (People v. Juarbe, 318 Ill. App. 3d 1040, 1051 (2001), citing Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 98, 116 S. Ct. 1769 (1996)), the police

already have wide latitude to effect a traffic stop based on one of

a myriad of minor violations that might not otherwise merit

scrutiny.  To permit, without more, a stop of someone driving

cautiously and below the posted speed limit would allow police to

stop virtually anyone at any time without waiting to witness a

discreet traffic violation.

	We also reject the State's assertion that the stop can be

justified under the community caretaking function of the police. 

A community caretaking encounter involves no coercion or detention

and thus does not involve a "seizure."  Gonzalez, 324 Ill. App. 3d at 19; People v. Leifker, 307 Ill. App. 3d 25, 28 (1999).  In City of Highland Park v. Lee, 291 Ill. App. 3d 48, 54 (1997), we held that an officer's use of emergency lights to effect a traffic stop

was a show of force amounting to a seizure.  We rejected Quigley, upon which the trial court relied, to the extent it held that such

a detention was consistent with the community caretaking function. 

Lee, 291 Ill. App. 3d at 53.  Here, the officer effected a traffic stop.  Community caretaking is based on the assumption of a

voluntary encounter, and the traffic stop removed this case from

its ambit.

	Because the traffic stop was not supported by reasonable

grounds that defendant was committing an offense, the circuit court

erred in denying the motion to quash and suppress.  Without the

suppressed evidence, there would be no evidence to prove

defendant's guilt.  Therefore, we reverse defendant's convictions.

Because of our resolution of this issue, we need not reach

defendant's second contention.

	The judgment of the circuit court of Du Page County is

reversed.

	Reversed.

	BOWMAN and KAPALA, JJ., concur.