NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
20 2 3 IL App ( 3d ) 220190

- U O rder filed August 23, 2023

____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT 2023
THE PEOPLE OF THE STATE OF ) ILLINOIS, ) ) Plaintiff

- Appellee, ) ) v. ) ) KELVIN R. BROWN , ) ) Defendant -Appellant. ) Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County , Illinois , Appeal No. 3-22-0190 Circuit No. 21- CM -128 Honorable Robert A. Miller , Judge, Presiding.

____________________________________________________________________________ JUSTICE ALBRECHT delivered the judgment of the court

. Justice s Brennan and Hettel concur red in the judgment.

____________________________________________________________________________ O RDER ¶ 1 Held : The circuit court properly denied defendant’s motion to suppress evidence

. ¶ 2 Defendant , Kelvin R. Brown, appeals his conviction for driving while license revoked
argu ing that the Du Page County circuit court erred by denying his motion to suppress evidence. We affirm. ¶ 3 I. BACKGROUND2 ¶ 4 D efendant was charged by superseding information with resisting or obstructing a p eace officer ( 720 ILCS 5/31

- 1(a) (West 2020) ) and driving while license revoked ( 625 ILCS 5/6 -303(a) (West 2020) ). Defendant filed a pretrial motion to suppress , alleg ing that he should have been given warnings as required by Miranda v. Arizona , 384 U.S. 436 (1966) , before being questioned by officers. The State opposed the motion, arguing that it was not necessary for police to provide Miranda warnings because defendant was not in custody, and the questions asked of defendant were permissible as part of a detention pursuant to Terry v. Ohio , 392 U.S. 1 (1968)

. ¶ 5 At a hearing on the moti on, Officer James O’Connor testified. The squad car video of O’Connor’s interactions was also introduced and played during O’Connor’s testimony

. O’Connor testified that he had been called to a gas station to investigate a possible violation of an order of protection on January 25, 2021. When O’Connor arrived, he was advised that the suspect was leaving the area in a gray sedan. O’Connor exited his vehicle and began walking toward the gas
pumps. O’C onnor observed a gray Toy ota Camry exiting the gas station and flagged the car down by waving his arms

. ¶ 6 The vehicle stopped , and O’Connor began speaking with the driver through the open passenger’s side window. The driver was later identified as defendant. O’Connor informed defen dant he was investigating a possible violation of a n order of protection. O’Connor asked defendant to back his car up toward the pumps and exit his vehicle, which defendant did. O’Connor requested defendant’s identification and obtained defendant’s backgro und information from dispatch. Dispatch advised that defendant’s license was revoked , to which O’Connor responded
“10 -4.” ¶ 7 O’Connor continued his investigation by entering the store to speak with the caller, Raymond Washington , and a clerk

. As O’Connor entered the st ore , dispatch informed him there3 was no active order of protection against defendant. Washington advised O’Connor he had not had any contact with defendant that day, but defendant had been bothering him recently, including threate ning him the previous evening

. Washington became concerned when defendant showed up at the gas station where he worked. Washington also informed O’Connor , unprompted, that defendant’s driver’s license was revoked. ¶ 8 O’Connor returned to defendant’s car a nd told defendant there was no active order of protection but informed him his license was revoked

. O’Connor asked defendant whether he had driven to the gas station, and defendant admitted to driving

. O’Connor’s squad car video recorded the following exchan ge : O’Connor told defendant , “The other problem is you’re not supposed to be driving, right?” D efendant replied , “Yeah

. ” Shortly afterward, O’Connor asked , “How’d you get here, you drove right?” D efendant responded , “Yeah, I did.” Following this exchange, O’Connor placed defendant under arrest for driving while his license was revoked. ¶ 9 The circuit court denied defendant’s motion to suppress his admission , stating that defendant had been initially detained pursuant to Terry when O’Connor flagged down his vehicle. The court observed that a Terry stop allow s for temporary detention and questioning when the officer reasonably infers from the circumstances that the person is committing or is about to commit an offense . The court explained that O’Connor had reasonable suspicion to detain defendant initially to investigate the violation of a n order of protecti on , but he obtained information in the course of that investigation suggesting defendant had committed the offense of drivin g while his license was revoked. O’Connor was therefore permitted to investigate whether his suspicion

was justified. ¶ 10 After defendant’s motion was denied, he proceeded to a jury trial and was convicted of driving while license revoked and resisting or obstructing a p eace officer. He was sentenced to 1804 days in the county jail. Defendant filed a motion for a new trial, which was denied, and this appeal followed. ¶ 11 II. ANALYSIS ¶ 12 On appeal, defendant argues the circuit court erred in denying his motion to suppress. We review a circuit court’s suppression ruling under a two

- part standard. People v. Oliver , 236 Ill. 2d 448, 454 (2010). The court’s factual findings will only be reversed if they are against the manifest wei ght of the evidence. Id. We review the court’s legal determination of whether suppression is warranted de novo

. Id. ¶ 13 The fifth amendment to the United States Constitution, which applies to the states under the fourteenth amendment, provides that “ ‘ [n]o person *** shall be compelled in any criminal case to be a witness against himself. ’ ” People v. Hunt , 2012 IL 111089, ¶ 23 (quoting U.S. Const., amend

. V). Accordingly, “t he prosecution may not use statements, whether exculpatory or inculpatory, stemming f rom custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self

- incrimination.” Miranda , 384 U.S. at 444. Those procedural safeguards include the right to be warned that he has the right to remain silent, that any statement he does make can be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. Id. at 479. ¶ 14 Custodial interrogation i nclude s “questioning initia ted by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444. We have held that “custodial interrogation” consists of two elements: (1) whether an individual w as subject to interrogation , and (2) whether the interrogation occurred in a custodial situation. People v. Tayborn , 2016 IL App (3d) 130594, ¶ ¶ 18-19.5 ¶ 15 An officer who lacks probable cause but whose observations lead him to suspect that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to “investigate the circumstances that provoke suspicion.” Un ited States v. Brignoni-Ponce , 422 U.S. 873, 881 (1975). Such stops and inquiries must be “reasonably related in scope to the justification for their initiation.” Terry , 392 U.S. at 29. Pursuant to such investigations, during a Terry detention an officer “ may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. Berkemer v. McCarty , 468 U.S. 420, 439 (1984). ¶ 16 We observe at the outset that defendant was c onfronted with an interrogatory question. O’Connor’s questions about whether defendant’s license was revoked and whether defendant had driven called for an incriminating response. At the time O’Connor asked defendant these questions, O’Connor was aware fro m his communications with dispatch that defendant’s driver’s license was revoked. An interrogation is “any practice that police should know is reasonably likely to evoke an incriminating response from a suspect.” Tayborn , 2016 IL App (3d) 130594 , ¶ 18. ¶ 17 We must next determine whether defendant was “in custody” for the purposes of Miranda

. D etention pursuant to a Terry stop is not dispositive of whether a defendant is in custody for the purposes of Miranda , although, absent additional indicia of a custodia l interrogation, a traffic stop does not ordinarily trigger Miranda ’s warning requirements. See , e.g. , Berkemer , 468 U.S. at 43 8- 42 (a traffic stop does not sufficiently impair the driver’s exercise of the privilege against self

incrimination so as to require that the driver be warned of his Miranda rights); People v. Jeffers , 365 Ill. App. 3d 422, 429 (2006) (defendant found not t o be subjected to a custodial interrogation when questioned by an officer at the scene of a traffic accident); People v. Briseno , 343 Ill. App.6 3d 953, 958 (2003) (defendant found not to be in custody for purposes of Miranda when he was stopped on a major thoroughfare and only two officers were in his immediate presence). ¶ 18 The determination of whether a defendant is in custody for the purposes of Miranda includes two inquiries: “(1) what were the circumstances surrounding the interrogation? and (2) given those circumstances, would a reasonable person have felt that he was not at liberty to terminate the interrogation and leave?” People v. Garza , 2018 IL App (3d) 170525, ¶ 16.

“ The following factors are determinative of whether a suspect was in a custodial

s etting: the location, time, length, mood, and mode of interrogation; the number of police officers present; the presence or absence of the family and friends of the accused; any indication of formal arrest; and the age, intelligence and mental makeup of th e accused. ” Id. ¶ 19 We agree with the circuit court’s assessment in its ruling on the motion to suppress. Defendant was detained pursuant to Terry , but his detention never became custodial for the purposes of Miranda

. Here, defendant was questioned in a public place by a single officer based on information the officer obtained in the course of his investigation. O’Connor’s investigation began with a valid Terry stop, evolved to include additional suspicious information obtained during the stop, but never became “custodial” for the purposes of Miranda

. See Berkemer , 468 U.S. at 421 (holding that the roadside questioning of a motorist detained pursuant to a routine stop did not constitute custodial interrogation because of the brevity of the encounter, the fact that it was conducted in public, and the fact that the atmosphere was less “police dominated” than the kinds of interrogations at issue in Miran da ). T he questioning took place on the scene and not in a coercive environment such as a police station. The questioning of defendant was brief and narrowly limited to the reasonable suspicion of criminal activity O’Connor had personally7 observed. See Peop le v. Slater , 228 Ill. 2d 137, 150 (2008). D efendant was not searched or told he was under arrest. Neither was defendant handcuffed, placed into a police vehicle, or transported to a police station for questioning, which are the most obvious indicia of a “ formal arrest.” Id. ¶ 20 Defendant urges that Berkemer is distinguishable because officers in that case observed additional indicia that defendant had committed a crime, which justified additional questioning. However, i n this case , officers also obtained add itional evidence that defendant had committed a crime after arriving on scene. At the time O’Connor asked defendant whether he had driven to the gas station, he was aware from both Washington’s statements and from dispatch that defendant’s driving privileges had been revoked. O’Connor obtained this information within a few minutes of detaining defendant. O’Connor had also personally observed defendant operating a motor vehicle and driving toward a public roadway. There were no passengers in defendant’s vehicle. At that point in time, O’Connor reasonably suspect ed defendant had committed the offense of driving on a revoked license by traveling to the gas station and was in fact begin ning to drive out of the gas station parking lot when O’Connor arrived. O’Connor was therefore permitted within the strictures of Terry to ask questions to confirm or dispel his suspicions. Berkemer , 468 U.S. at 439 (an officer “may ask the detainee a mode rate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions”)

. ¶ 21 In coming to this conclusion, we note that defendant further argues that the extension of an investigation, alone, is enough to transform a valid Terry stop into a custodial situation for Miranda purposes. We need not consider this question as we do not find defendant’s detention was impermissibly extended. O’Connor ran defendant’s name through dispatch within minutes of speaking to him and obtained the information that his license was revoked before he spoke with Washington and the clerk. O’Connor was therefore investigating two possible offenses, just as the8 officers in Berkemer were when they pulled over a motorist for a traffic violation and then inquired about the driver’s apparent intoxication. See id. at 423. ¶ 22 Because defendant was not subjected to a custodial interrogation, O’Connor was not required to advise defendant of his rights under Miranda , and the circuit court properly denied defendant’s motion to suppress. ¶ 23 III. CONCLUSION ¶ 24 The judgment of the circuit court of Du Page County is affirmed

. ¶ 25 A ffirm ed

.