1

Rule 23 order filed NO. 5-06-0026 July 11, 2007; Motion to publish granted IN T HE August 14, 2007. AP PEL LA TE C OU RT OF ILLIN OIS FIF TH DIST RICT

__________________________________________________________________ _______ THE PEOPLE OF THE STA TE OF ILLINOIS, ) Appeal from the ) Circui t Court of Plaintiff-A ppella nt, ) E ff in gh am C ou nt y. ) v. ) Nos. 05-CF-187 & 05-DT-155 ) THOMAS DAMI AN, ) Ho nora ble ) Ja m es R . H ar ve y, Defendant-Appell ee. ) Judge, presi ding.

________________________________________________________________________ JUS TIC E S TE WA RT delive red the opin ion o f the c ourt: The plaintiff, the People of t he State of Ill inois (Stat e), appe als t he orderof the circuit court of E ffing ham Co unty granting the moti on to suppre ss evide nce fil ed by t he defe ndan t, Th om as D am ian. W e rev erse and rem and

. BACKGROUND At the he aring o n the m otion to suppress, the only witness offered by

eithe r part

y was the arresting offic er, Tro oper Ch ad S mith (Smith) of the Il linoi s Stat e Police , who was calle d
as a witness by t

he defendant. Using a video recording device l ocated i n his offi cialvehicl e, Sm ith record ed virtu ally all of the event s surr ounding the arrest and searchof

th e d ef en da nt 's vehicl e. The videotape, which continually dis plays t he time as t

he events unf

old, was adm itted into evid enc e as "D efe nda nt's E xhi bit 1 ." On June 12, 2005, Smith res ponded to a cal l that a motoris t had runoff Inter stat e 57 into a ditch. W hen Sm ith arri ved at the scene, he found no vehicl e. He proceeded to a nearby rest stop, where he saw the defendant trying to unl ock his ve hicle w ith a sti ck. Upon questi oning, he lear

ned t hat the d efendant had r un off the i nters tate into t he ditc h and had2

drivenhis car

from the di tch to the rest stop. A t the rest s top, the defe ndan t had lo cked his keys in his c ar. At approximat ely

2:22 p.m. , Smith be gan recording the event s and convers ations at the rest stop using the vid eo eq uipm ent in h is police vehic le. At th is point, the defendant was in the squad car and was an swering questions re late d to the incident . Smith told the defendantthat if he had h it something, Sm ith wou ld be required to fill out a crash re p ort. The defendant r esponded that he had simply

run off the road into a

ditch. He stated t

hathe had been at a music festival, that he had gotte n very lit tle s leep, and that

the inc ident was causedby fatigue . The defe ndan t appe ared le thargic , and h is spee ch w as slurre d. Sm ith que stion ed th e de fen dan t abo ut p oss ible d rug use . At app rox ima tely 2:3 6 p.m ., Smith admini ster ed a horiz ontal- gaze-ny stagmus test on the defendant, which the defe ndan t passe d. Sm ith did n ot adm inister an y other fie ld sob riety tes ts
. Because of the def endant' s demeanor and hi s admissi on that he had run off the road in the middl e of the aft ernoon and had then loc ked his ke ys in his ca r, Sm ith con tinued to questi on the defendant

about drug us e, i ncluding t he fact t hat the defendant was on probation for a co nvi ction resu lting fro m a 200 4 C oles Co unt y arres t on a ca nna bis c har ge. Befo re the defendant 's c ar door was unl ocked, Smit h and a nother officer

walked around t he v ehic le an d lo oke d in the w ind ow s. Sm ith sa w r ollin g pa per s ins ide. Th e defend ant c laim ed th at he rolle d hi s ow n cig arett es. At about 2:43 p. m., Smit h asked the other pol ice offi certo go to t he scene where t

he d efendanthad r un o ff the road to dete rmine wh ether th e defenda nt had collid ed with a guar drail or other

propert y. After inve sti gating t he scene, the offi cer repor ted that the defendant had not

colli ded with anything. At appr oxim ately 2:49 p.m., an offic er un locke d the d efen dant's v ehicle , using a "slim ji m" provided b y ano th ermo tori st at the res t st op. At 2:50 p. m., during a cellphone3

conv ersation , Smith stated th at he w as plan ning to arres t the de fendantand that the char ge
wo uld depend on whether t he defenda nt had colli ded with anything. If no coll isi on had occurred, the charge would be "D UI-drugs." At a ppr oxi ma tely 2:5 2 p.m ., while Smith and the defend ant we re standing n ext to the ope n car doo r, Sm ith pointed toward the int erior of the vehic le and asked the defendant whether he co uld "lo ok o ver the re." A fter a p ause , Smith made a reference to "the whole thing." The defe nda nt re spo nde d, "Y eah , fine wit h m e." Sm ith told the defe ndan t to step b ack f rom the ve hicle . Smith d id not r equest t hat the def end ant si gn apr eprin te d co nse nt -t o- se ar ch- a- veh ic le for m. Sm ith s ear ched the ve hicle a nd f oun d a bo ttle in a zip ped b ackp ack. T he bo ttle contai ned a liquid, which looked like "d irty water," with a st em in it . Smith arrest ed the defend ant for "D UI -dru gs." On August 24, 2005, a b ill of ind ic tmen t was issued charg ing the defe ndan t with possessi on of a contr olled substanc e, 200 grams or more of a subst ance containing psilocin (720 ILCS 570/40 2(a)(1 1) (West 20 04) (Clas s 1 felony)). On September 13, 2005, the Effingham Co unty State' s Attorne y fi ledan informat ion charging the defendant with dri ving with a drug, s ubstance, or compound in the bl ood or uri ne (625 ILCS 5/11-501( a)(6) (West 2004) (Class A misdemeanor)). The informati on was amended on J an uary 12 , 2006 , to specify that t he drug found in t

he defendant' s sy stem was cocai ne. On October 20, 2005, the defendant file d a motionto suppre ss the e vidence, arguing that all of the evi dence sei zed on June 12, 2005, was pursuant to a warrantless detent ion and arrestand a w arrantle ss, non cons ensu al veh icle sea rch. T he circ uit cou rt held a heari ng on the motion on December 7, 2005. At the conclusi on of the hearing, t he court took the moti on underad vi se m en t to w atc h t he vi de ot ap e m ar ke d a s " D ef en da nt 's Exhibit 1." O n Janua ry10, 2006, after

reviewing the vide otape, the court heard the arguments of counseland again t ook the m atter und er ad vise me nt.4

On January

12, 2006, t

he circ uit court gr anted the m otion to supp ress. T he circ uit court fou nd th at the se arch d id not "fi t int o anypermissible cat egory " and that Smith did not have probable c ause to s earch the vehicl e. Although the cou rt ackn owledged that it had observedthe defe ndan t's "letharg y and 'spa ced o ut' dem eano r" on th e vide o, it found that one explanat ion was "driving under the influence of s omething, " while anot herwas having spent the weekend at amusic festival and drinki ng too much while sl eeping too little. The court found as foll ows: "While t here mayhave been (and I believe there was) reason t o questi on his abili tyto dri ve safely, an d po ssibly, the 'drive ability' of his ca r, there w as no t prob able
cause to sear ch the vehi cle. " The court found t he consent to search invalid. The State f iled
a ce rtific ate o f sig nific ant im pair me nt an d a tim ely no tice o f ap pea l. AN AL YS IS A motion to suppress gene rally pre sen ts m ixed que stion s of law and fac t. People v. Cox , 202 Ill. 2d 462, 465-66 ( 2002). Fi ndings of hi stori cal fact made by the trial court are accordedgreatdeference and w ill be upheld on review unless those findings ar e against the manifest weight of the evidence. People v. Lee , 214 Il l. 2d 476, 483 (2005). The reviewing court remains fr ee to undert ake it s own analy sis of t he facts in relation to t

he issue s present ed and may rea ch its own conclusions when deciding what r elie f should be gr anted. People v. Jones , 215 Ill. 2d 26 1, 268 (200 5). A ccord ingly, we revie w de novo the ultimate ques tion of w heth er a s upp ress ion of e vid enc e is w arra nted

. Jones , 215 Il l. 2d at 268. The State argues that Smith had probable cause to arres t t he defendant for drivi ng underthe inf

luence of drugs an d that, under New York v. Belton , 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. C t. 2860 (1981), once the offi cer hadprobable c ause to ar rest the defendant , he had th e la w fu l au th or ity to se ar ch th e p as se ng er co m pa rtm en t o f th e d ef en da nt 's car andany contai ners found t

herein. We agree. The Ill inois Supreme Court has obs erved that there are three ti ers of pol ice-c iti zen5

encou nters that, t heo retic ally, do not con stitute an u nre aso nab le se izur e. People v. Gherna , 203 Ill . 2d 165, 176 (200 3). Th e first tier is an a rrest sup por ted b y prob able cau se. Gherna , 203 Ill. 2d at 176. The second ti erinvolves a brief invest igative seizur e conducted under the standards set fo rth by the United S tates Suprem e Cou rtin Terr y v. O hio , 392 U. S. 1, 2 0 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)

. G herna , 203 Il l. 2d at 177. The final ti er involves
con sen sua l po lice- citize n en cou nter s. Gherna , 203 Ill. 2d at 17 7. Sm ith 's original encou nter with the d efenda nt was in a comm unity-c a retaking role, which is di sti nct from a cons ensual enc ounter and i s invoked t o validate searc hes and seizures. People v. Luede mann , 222 Il l. 2d 530, 548 (2006). Smith res ponded to a cal l about
a veh i cle off the ro ad, loc ated th e veh icle an d the d river, an d rem ained at the re st stop to assist the defendant beca

use he was locked out

of his car . When a law enforcement officer initiate s an encounter

to check on an individual 's wel l-being withoutthe initia l thought of crimina l activity, the fu nction is com mu nity ca retak ing

. People v. Robinson , 368 I ll. App. 3d 963, 972 (2006) . The offic er can, in this role, ques tion an individ ual if th e pur pose is totally divorced

from the det ecti on, inve sti gation, or acquis iti on of evidence. Robinson , 368 Ill. A pp. 3d at

972. While Smit

h was engaged in hi s community -caret aking rol e, he m ad e certain obs erv ation s. He noticed t hatthe defendant

was lethargic, that hi s balance was poor aton e p oi nt , an d t ha t h is s pe ec h w as slo w an d s lu rre d. T hi s, c om bi ne d w ith th e d ef en da nt 's acti on in runni ng off the roa d into a di tch an d lock ing h is keys in h is car, ga ve S mith pro bab le ca use to ar rest th e de fen dan t. The State alleges seve n reasons th at, taken together, m ade it more prob able than not that the defen dant w as driving un der the influen ce of dru gs: (1) he w as on pro bation for a drug offense, (2) he had r un his car

off the i nters tate into a ditch during the m iddle of the after noon, (3) he had locked h is keys inside his car, (4) his spee ch was slow and slur red and sometimes his sentences traile d off, (5) he hadfail ed to immediately answer simpl e questi ons6

and once nearl y fel l over, (6) he w as returning from a rock festiva l, whe re dru g usa ge is
comm on, and (7 ) the officers w ere able to see c igarette rolling papers inside his car. The United States and Il linoi s Constit utions protect

indivi duals fr om unr eas onab le searches and se izur es. U.S. Co nst., am end. IV ; Ill. Const. 1970, art. I, §6. An arrest without prob able cause violates these const ituti onal provisi ons . Lee , 2 14 Ill . 2d at 484. A peace officer may make a warrantless arrest when he "has reaso nable grounds to be lieve that t he person i s committ ing orhas committ ed an offense. " 725 ILCS 5/107-2(1) (c) (West 2 004). As used in t

he stat ute, the phras e "reas onable grounds " is s ynony mous with "pro bab le ca use ." People v. Tisle r , 103 I ll. 2d 226, 236-37 ( 1984). The det erminat ion of whether an officer

has probab le cause t o arres t focuses on the prac tica l and fact ual consi derati ons upon which reasonabl e, prud ent m en, no t le gal te chn ician s, ac t. People v. Buss , 187 Il l. 2d 144, 204 (1999). This determ ination is base d on facts k now n to the police at the t ime o f the a rrest. Peo ple v. C hapman , 194 Ill. 2d 186, 217 (2000). In determining whether probable cause exists, the officer

looks at the totalit

y of t he circ umstances at the time of th e arr est. People
v. Si ms , 192 Il l. 2d 592, 615 (20 00). The facts know n to the officer at t he time of the arrest must be suffici ent to l ead a reas onablycau tious person t o belie ve that the arr estee ha s
com mitte d a c rime

. People v. Love , 199 Ill. 2d 269 , 279 (20 02)

. Sm ith test ifie d that he had been a st ate trooper for 9 year s and that , pri or to t hat, he had bee n a deputy

sheri ff for 41⁄2 year s. He tes tifi ed that he had spent s ix months on t he Southe rn Il linoi s Dr

ug T as k Fo rc e wh il e h e wo rked forthe sh eriff's de partm ent in F ayette C ou nt y. As a result o f his law enfo rcem ent ex perien ce, he had m any enc oun ters w ith peo ple underthe inf

luence of cont

roll ed substances. I n determi ning whether prob able cause exists, law enforcement

officer s may r ely

on their training andexperie nce to draw inferences and
ma ke d edu ction s tha t mig ht elu de a n un train ed p erso n. Jones , 215 Ill. 2d at 27 4. Sm ith and a noth er officer pe ered in to the d efen dant's ca r wh ile it was locked and7

observedpapers fo r r ol ling homemade ci garett es. These pa pers ar e commonly use d for smoking marijuana. The defendant was on probation for possession of marijuana. These fac ts, tak en w ith th e de fen dan t's dem ean or, su gge sted the p rese nce of m ariju ana . Based on his training and experi ence, Smit h concluded t

hat the defendant' s slow and slurred speech, hi s acti ons in running off the roa d in the mi ddle of the after noon and then lockinghis ke ys in his car , his lack of bal ance at one point, and the presence of rolling pap ers indicatedhe was und er the in fluen ce of a con trolled su bstan ce. Th ese fa cts are su fficien t to l ead a reasonably cautious per son to bel ieve that the defendant was drivi ng u nder th e influe nce of

drugs. Even the trial c ourt not ed that the defendant had a " spaced out" demeanor
on the vide o, and the court found that there was reaso n to q uestion the de fend ant's ability to driv e sa fely. The defendant as sert s that his actions and demeanor were the re sult

of a weekend of partying that l eft hi m fatigued. A probable cause determ inati on tolerates t he exist ence of other innocent

infere nces from the eviden c e, as long as the inferences supporting arrest
rema in reas ona ble. People v. Long , 369 Il l. App. 3d 860, 870 (2007). While one fact or alone mightap pe ar

innoc uou s, whe n apol ic e o ff ic er vi ews the totalit

y of the circ um stance s with
a trained eye, h e m igh t reco gni ze p rob able crim inal a ctivi ty. People v. S chm itt , 346 Ill . App. 3d 114 8, 11 53 ( 200 4). Thus, in maki ng a probable cause det erminat ion, the relevant inqu iry is not w hethe r th e susp ect' s conduct i s guil ty or innocent , but t

he degree of sus picion t hat atta ches to th e co ndu ct. Schm itt , 346 Il l. App. 3d at 1153. I n considering a ll of th e circumst ances surrounding the defendant 's s ituation and i n speaking to him and obser ving hi m, Smith, a s a tr ained offi cer , w as able to recogniz e the defendant 's probable cr iminal conductof driving underthe inf luence of dr

ugs. This infere nce was reasonabl e, even i n light of the defendant 's c laims of innocence. The degr ee of

prob ability forestablishing probable cause for search and seizure is less8

tha n that ne cessa ry for de mo nstrating that it is m ore like ly than no t that th e suspec t committed

a crim e. Long , 369 Il l. App. 3d at 870. Pr obable caus e requir es les s evidence than is necessar

y for a convict ion and does not r equire t hat the officer 's be lief

be correc t or even more li kely

true than fals e. Jones , 215 Il l. 2d at 277. When examining t he tota lit y of the circumstance s at the tim e of th e arres t, we c onclu de tha t there w as pro bable caus e to arrestth e d ef

en da nt . T he fa ct s know n to Smith were s uffici ent to l ead a reasonably cautious personto beli eve that

the defendant

had committe d the crim e of driving while under t he influe nce of d rug s. Bec ause there w as pro bable caus e to arrest the defen dant, the trial court
wa s inc orre ct in d eterm inin g th at the sea rch wa s no t inci den t to a l aw ful a rrest
. When an officer m akes a law ful arre st of an occu pant o f a ve hicle , he m ay, as a contemporaneous incident of tha t arre st, search the pa ssenger c ompartment of t he vehicl e and examine the cont ents of a ny op en o r clo sed con taine rs fo und ther ein. Belton , 453 U.S. at 460-61, 69 L. Ed. 2d at

775, 101 S. Ct. at2864. T he Illinois Suprem e Cou rthas adopted t he rule s et out in Belton

. People v. St ehman , 203 Ill. 2d 26, 35 (2002). When probable cause to arrest ex ists, a sear ch m ay be co ndu cte d i mm edia tely be for e the arre st. Rawlings v. Kentucky , 448 U.S . 98, 11 1, 65 L . Ed. 2 d 63 3, 645 -46, 1 00 S . Ct. 2556, 25 64 (198 0); People v. Little , 322 Ill. A pp. 3 d 60 7, 61 2 (2 001 ). The defendan t argues t

hat thi s searc h was unlawful purs uant to Thornton v. United States , 541 U.S. 615, 158 L. Ed. 2d 905, 124 S. Ct. 2127 (2004) . He contends t hat an offi cer may search a susp ect's veh icle on ly if the susp ect is arre sted

. Thornton , 541 U.S. at 621, 158 L. Ed. 2 d at 91 3, 124 S. C t. at 213 1. Th is is me rely a reci tati on of the hol ding in Belton. In Rawlings , the U nited S tates Su prem e Co urt held that w here th e form al arrest follow s quic kly
on the heel s of the cha llenge d search, it does not matt er whether t he search pr eceded the arrestas long as the fruits of t he sea rch were not n ecess ary to sup port p roba ble ca use to arrest. Rawlings , 4 48 U
. S. at 111 n.6, 65 L. Ed. 2d at 646 n. 6, 100 S. Ct. at 2564 n. 6; see9

also People v. Ti llman , 355 Ill. App . 3d 19 4, 200 (200 5) (a se arch is proper i f it i s conducted immed iately prior

to an arr est) . In t

he inst ant case , the arres t took pl ace shortly af ter th e search. Smith hadprobable c ause to ar rest the defendant

prior to sear ching his vehicl e, and the drugs found in the defendant's vehicle were not necessary to support the probable cause to ar rest. The defendant fur

ther cont ends that

he was not the s ort of

recen t occu pant o f a ve hicle descr ibedby t

he United States Supre me Court in Thornton because Smith did not obse rv e him drivi ng the vehi cle. Thornton hold s that Belton governs even when an offi cer does not make contact

unt il the per son arre sted has left th e ve hicle

. Thornton , 541 U.S. at 617, 158 L. Ed. 2d at911, 124 S. Ct. at 2129. When Smith approac hed the defendant , he was st anding nextto the ve hicle and was trying to unl ock the d oor. Through conve rsat ion with t he defe ndan t, Sm ith imm ediate lyascert ained that the defendant was t he indivi dual who had run off the road into t he ditc h. As a result, Smit h was aware that

the defendant

had been a recent occupantof the vehic le and , in fact, w as the o nly recent occupant of t

he vehicl e. Thornton does not h old tha t an officer m ust see the su spec t driving the ve hicle in orde r to class ify him
as a recent

occupant of t

he car. Thornton stat es that an arres tee' s stat

us as a re centoccupant do es not turn on w hethe r he w as insid e the c ar or o utside th e car w hen th e officer firs t initiate d con tact w ith h im. Thornton , 541 U.S. at 62 2, 158 L. Ed. 2d at 914, 124 S. Ct. at 2131-32. The concerns that warrant a search are i dentic al whether the suspect is i nside t

he vehic le or the s uspect i s nextto th e ve hicle

. Thornton , 541 U.S. at 621, 158 L. Ed. 2d at 913, 124 S. Ct. at 2131. The defe ndant was nex t to th e ve hicle wh en S mith app roa che d. Sm ith
was arresting the defendan t for a driving o ffense. A dri ver who is unde r the influence of drugs, ran off the road, an d was locate d s tanding ne xt to hi s car i s a recent occupant of a
ve hi cle as co nt em pl ate d b y Thornton

. The State a lso arg ues th at the se arch w as pro per u nder the au tomo bile exce ptio n to10

the wa rrantrequ ireme nt, wh ich pro vides that a w arrantle ss sear ch of an au tomo bile is
reaso nable when the pol ice h ave pro bab le ca use to b eliev e it co ntain s co ntra ban d. People
v. Nadermann , 309 Il l. App. 3d 1016, 1020 (2000). The search may extend t o any closed containers in th e ve hicle that m igh t reas ona bly co ntain the o bjec t of th e se arch

. People v. Sm ith , 95 Ill . 2d 412, 418 ( 1983). I n the cont ext of the automobile exception, probable cause requir es knowledge of fact s that would cause a re asonably prudentperso n to b elieve that a
cr ime had occurre d and that evidence of t

hat crime could be found i n the vehi cle. Nadermann , 309 Ill. App . 3d at 1 020 . In talkin g w ith the d efen dant, S mith n oted h is let ha rg y, slurred speech, and poor balance. Smit h's e xperienc e as a police offic er led h im to belie ve that t

he defendantwas under the influence of drugs. Smith saw rol ling pape rs of the kind typica lly used for can nab is in th e de fen dan t's car . T hese f actors gave him p roba ble
cau se to belie ve th at dr ugs wo uld be foun d in the d efe nda nt's ca r. The State argues that it

does not matter whether Smit h had pr obable cause to arrest
or to search because the de fend ant co nsen ted to th e searc h. W e nee d no t addre ss this argumentbeca use p roba ble cause existed to arrest the defendant , and the search was l awful as in cide nt to a law ful a rrest
. CONCLUS ION For the fore going reas ons, t he judgment of

the circ uit cou rt of E ffing ham Co unty is
revers ed, and t

he cause i s remanded for fur ther pr oceedings c onsist ent with t his deci sion.

Reversed and re manded.

WE LC H, P.J., and G OL DE NH ER SH , J., concur.NO. 5-06-0026 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ THE PEOPLE OF THE STA TE OF ILLINOIS, ) Appeal from the ) Circui t Court of Plaintiff-A ppella nt, ) E ff in gh am C ou nt y. ) v. ) Nos. 05-CF-187 & 05-DT-155 ) THOMAS DAMI AN, ) Ho nora ble ) Ja m es R . H ar ve y, Defendant-Appell ee. ) Judge, presi ding.

___________________________________________________________________________________ Rule 23 Order Filed: July 11, 2007 Motion to Publi sh Granted: August 14, 2007 Opinion Filed : August 14, 2007

___________________________________________________________________________________ Justice s : Honorable B ruce D. Stewart, J.

Honorable Thomas M. Welch, P.J ., and Ho nor able Ric har d P . Go lden her sh, J ., Concur

___________________________________________________________________________________ Atto rneys Stephen E. Norris, Deputy Director, Kevin D. Sweeney, Staff Attorney, State's for A tto rn eys A pp ell ate Pr os ec ut or , 73 0 E . Ill in oi s H w y. 15, P.O. Box 2249, Mt. Vernon, Appell ant IL 62 864 ; Ho n. Ra lph E . Fow ler II, A ssistant S tate's Atto rney, Effingh am C oun ty

Courthouse, 101 N. Fourth, Suite 400, Effingham, IL 62401

___________________________________________________________________________________ Attorney Lou J. Viveri to, Taylor Law Offices, P.C., 122 East Washingt on Avenue, P.O. Box for 668, Effingham, IL 62401-0668 Appellee

___________________________________________________________________________________