NO. 4-01-0706

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellant,		)	Circuit Court of

		v.						)	Moultrie County

BRADLEY R. MONTGOMERY,				)	No. 01TR624

		Defendant-Appellee.			)

								)	Honorable

								)	Dan L. Flannell,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		The State of Illinois appeals the May 25, 2001, order

of the Moultrie County circuit court granting defendant Bradley

R. Montgomery's motion to quash arrest and suppress evidence. 

Defendant had been charged by information with operating a motor

vehicle in violation of gross weight restrictions (625 ILCS 5/15-

111(b) (West 2000)).  We affirm.  

I. BACKGROUND

		On January 8, 2001, Officer Rick McFarland of the

Illinois State Police was on "scale duty" in Moultrie County. 

The State Police had set up portable truck scales in the City of

Sullivan in Moultrie County, and it was Officer McFarland's

mission for the day to drive around looking at any truck he saw

and see if he could tell if the truck was overweight.  Officer

McFarland stopped trucks that he suspected were overweight and

ordered them to drive to the scales in Sullivan to be weighed. 

		On this date, Officer McFarland was driving southbound

on Route 32 in Moultrie County as part of his scale duty.  He observed an approaching northbound international semitractor

trailer truck turn west off of Route 32 onto Findlay Road. 

Defendant was driving this truck.  Officer McFarland turned west

as well and followed the truck for one-half to three-fourths of a

mile before activating his lights and stopping the truck.  The

right rear tires on the trailer appeared to be "bulged out a

little bit."  It was Officer McFarland's experience from 50 or 60

prior cases that overweight trucks have bulging tires.  This was

the only indicator that the truck was overweight which Officer

McFarland observed.   Officer McFarland ordered defendant to

drive to Sullivan, which was about five miles from where the stop

occurred, to be weighed. 

		Defendant's truck weighed in at 78,500 pounds, which

was 5,220 pounds in excess of the maximum allowed by statute. 

625 ILCS 5/15-111(b) (West 2000).  The State subsequently charged

defendant with operating a motor vehicle in violation of gross

weight restrictions. 

		The State later dismissed the charge.  Officer

McFarland contacted the prosecutors on his own initiative after

learning of this, and the charge was reinstated.   The prosecu

tors had apparently misapprehended some of the facts in the case,

i.e., defendant's truck was licensed to carry a load of up to 80,000 pounds, and defendant's truck was in compliance with

weight limits for Route 32.  However, defendant's truck was

overweight for Findlay Road, where it was stopped. 

		Defendant filed a motion to quash arrest and suppress evidence, arguing that Officer McFarland did not have sufficient

reason to believe defendant's truck was overloaded to justify the

stop.  The trial court agreed and granted the motion.  The State

appeals. 

II. ANALYSIS

		We must first note that defendant has not filed an

appellee's brief.  However, the record is simple, and the claimed

errors are such that we can decide them without the aid of an

appellee's brief.  We therefore reach the merits of the appeal.

See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131, 345 N.E.2d 493, 495 (1976).

		When Officer McFarland stopped defendant and ordered

him to drive to Sullivan to be weighed, he was acting pursuant to

section 15-112(a) of the Illinois Vehicle Code (Code) (625 ILCS

5/15-112(a) (West 2000)).  Section 15-112(a) states:

			"Any police officer having reason to

		believe that the weight of a vehicle and 

		load is unlawful shall require the driver 

		to stop and submit to a weighing of the same 

		either by means of a portable or stationary 

		scales ***. If such scales are not available 

		at the place where such vehicle is stopped, the 

		police officer shall require that such 

		vehicle be driven to the nearest available 

		scale that has been tested and approved pur-

		suant to this [s]ection by the Illinois Depart-

		ment of Agriculture."  (Emphasis added.)  625 

		ILCS 5/15-112(a) (West 2000).

The determinative issue in this case is whether Officer McFarland

had "reason to believe" defendant's truck was overloaded, justi

fying stopping defendant and ordering him to drive to the nearest

available scale to be weighed.  What exactly "reason to believe"

means is not defined by the Act.

		On appeal, the State argues that the trial court erred

when it granted defendant's motion to suppress on the basis that

Officer McFarland did not have "probable cause," rather than

"reason to believe," thereby equating the stop with an arrest. 

The State suggests that a stop pursuant to section 15-112(a) of

the Code is actually a Terry stop, which need only be supported by a "reasonable suspicion" of criminal activity.  People v. Murray, 137 Ill. 2d 382, 387, 560 N.E.2d 309, 311 (1990); see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).  Therefore, the State suggests that the "reason to

believe" standard is equivalent to the "reasonable suspicion"

standard, and the trial court erred by applying the more onerous

"probable cause" standard.  The State further argues that under

the "reasonable suspicion" standard Officer McFarland did have

reason to believe defendant's truck was overweight because of his

experience with 50 or 60 overweight vehicles where all of them

had tires that appeared to be deflated. 

		No other case we have found has specifically equated

the "reason to believe" standard with the "reasonable suspicion" standard of a Terry stop.  However, we agree with the State on this point and find that a stop made pursuant to section 15-

112(a) is equivalent to a Terry stop.  We therefore also find that an officer having "reason to believe" a vehicle is over

weight means the same thing as an officer having "reasonable

suspicion" that a vehicle is overweight. 

		Our analysis of the nature of a stop made pursuant to

section 15-112(a) begins with the three theoretical tiers of

police-citizen encounters recognized by the Illinois Supreme

Court:  (1) an arrest that requires probable cause, (2) a Terry stop, which requires reasonable suspicion, and (3) the

"community- caretaking" function thatwhich involves no coercion or

detention and therefore no seizure.  Murray, 137 Ill. 2d at 387- 88, 560 N.E.2d at 311-12.  There is also a fourth kind of encoun

ter:  "sus-picionless, administrative searches that [are] con

ducted as part of a general regulatory scheme to ensure public

safety, not as a criminal investigation to secure evidence of

crime."  People v. Parker, 284 Ill. App. 3d 860, 862, 672 N.E.2d 813, 816 (1996). 

		Looking at the four types of police-citizen encounters,

we note that a stop pursuant to section 15-112(a) of the Code is

not an arrest or search that requires probable cause.  People v. Lumpp, 54 Ill. App. 3d 235, 237, 369 N.E.2d 323, 324 (1977); cf. People v. Ruth, 170 Ill. App. 3d 623, 625, 524 N.E.2d 1254, 1256 (1988) (no distinction between "reason to believe" standard and

"reasonable person" standard of probable cause).  A stop pursuant to section 15-112(a) is not a community-caretaking function

either because an officer uses a show of authority to detain

truck drivers suspected of committing a crime, i.e., being overloaded.   Murray, 137 Ill. 2d at 388, 560 N.E.2d at 312 (community-caretaking function is "totally divorced from the

detection, investigation, or acquisition of evidence relating to

the violation of a criminal statute").  Nor can this type of stop

be classified as an "administrative search" that does not require

any individualized suspicion at all, because the police are

looking for evidence of a crime.  Parker, 284 Ill. App. 3d at 862, 672 N.E.2d at 816; see also People v. Franks, 72 Ill. App. 3d 940, 942, 391 N.E.2d 574, 575 (1979) (an officer does not need

any reason to believe trucks are overweight when every truck of

that class is systematically stopped at a roadside check, but a

random stop of a particular truck is not authorized without

individualized reason to believe that a particular truck is

overweight).  Therefore, by process of elimination, a stop made

pursuant to section 15-112(a) is equivalent to a Terry stop. 

		We next determine whether the trial court erred in

granting defendant's motion to suppress.  We first point out that

the trial court did not actually use a "probable cause" standard

as the State argues.  The trial court stated that it thought

"reason to believe" was a "hybrid" between reasonable suspicion

and probable cause.  In any case, we review de novo whether the facts found by the trial court constituted "reasonable suspicion"

supporting a Terry stop.  People v. Ross, 317 Ill. App. 3d 26, 29, 739 N.E.2d 50, 54 (2000).  The trial court's findings of fact

will not be reversed unless they are manifestly erroneous. 

People v. Gonzalez, 184 Ill. 2d 402, 411, 704 N.E.2d 375. 379 (1998).

		Defendant's defense in the trial court was based

primarily on challenging the credibility of Officer McFarland's

testimony that he did in fact observe a slight bulge in the right

rear tires.  Defendant produced testimony and exhibits to demon

strate that the tires on his truck and trailer were not underin-

flated when he was stopped and that the load the tires were under

would not have caused any bulging of the tires.  The trial court

did not make any specific factual or credibility determinations. 

The trial court implicitly accepted Officer McFarland's testimony

as true by ruling that what Officer McFarland testified he

observed was not reason to believe defendant's truck was over

weight.      

		The trial court based it ruling on one legal proposi

tion: "whether or not a police officer who sees one indicator [of

a truck being overweight], as he testified that being the case,

low tires on one side, is a sufficient indicator to rise to the

level of [']reason to believe.[']"  Some examples of recognized

indicators that a truck is overweight include a trailer riding

lower in the back thean the front with tires that appear deflated,

but after testing at the scene of the stop the tires are found to

be properly inflated (Lumpp, 54 Ill. App. 3d at 237, 369 N.E.2d at 324); compressed springs and tires that appear low but are fully inflated (People v. Johanson, 28 Ill. App. 3d 82, 85, 328 N.E.2d 331, 333 (1975)); strained engine noise, black smoke

coming from the exhaust, and lack of acceleration (Ruth, 170 Ill. App. 3d at 625-26, 524 N.E.2d at 1256); and a load that is high

up over the sides of the truck (People v. Lafin, 59 Ill. App. 2d 489, 492, 208 N.E.2d 105, 106 (1965)).  The trial court ulti

mately held that, in this case, the single indicator of the

slightly bulging tires on one side, without more, was not enough

to give Officer McFarland reason to believe the truck was over

weight.  We agree.

		What the evidence in this case demonstrates is that it

is apparently very difficult to determine that a semitractor

trailer is overweight just by looking at the tires. We first note

that tires that appear deflated have been recognized as giving an

officer reason to believe the truck is overweight, but only when

combined with other indicators that the truck was overweight and

when the officer checked the tires' pressure and found them to be

properly inflated.  Lumpp, 54 Ill. App. 3d at 237, 369 N.E.2d at 324; Johanson, 28 Ill. App. 3d at 85, 328 N.E.2d at 333.  Officer McFarland did not check the tires' pressure in this case, and

there were no other indicators that the truck was overweight. 

Also, the tires in this case were radials, and Officer McFarland

himself testified that radials will appear to have a slight bulge

even if the trailer is empty.   There was testimony from defen

dant's employer, who had been a truck driver for 24 years, that

he had seen a semitractor trailer like the one in this case overloaded to 95,000 pounds and there was no noticeable bulging

of the tires.  Finally, defendant introduced into evidence

photographs of the trailer's rear tires from a rear and side view

under loads from 70,420 pounds to 81,000 pounds.  There was no

discernible difference in the tires.

		It is also significant that in this case defendant's

truck was within its licensed weight capacity of 80,000 pounds. 

Defendant's truck was overweight solely by virtue of what road he

was on, not because his load was heavy enough to have an effect

on his truck, such as overburdening the tires.  Whatever bulge

was observed was not caused by an excess load on the tires. 

Admittedly, Officer McFarland did not know these facts at the

time he made the stop.  However, it is relevant to further point

out how little one can determine about a truck's weight by simply

looking at the tires without checking whether the tires are

properly inflated.

		Although Officer McFarland testified that in every case

in which he had been involved with overweight trucks the trucks

had bulging tires, it does not necessarily follow that every

bulging tire means an overweight truck.  This accords with

Officer McFarland's testimony that in his experience he usually 

noticed bulging tires only after seeing some other indicator that

a truck is overweight.  A slightly bulging tire combined with

some other indicator of a overweight vehicle would give an

officer reason to believe the vehicle is overweight.  Also, if

after the initial stop the bulging tires were checked and found to be fully inflated, that is reason to believe the bulge is

being caused by an excessive load.  However, slightly bulging

tires on one side, without more, is not enough to give an officer

reason to believe a truck is overweight. 

III. CONCLUSION

		We affirm the May 25, 2001, order of the Moultrie

County circuit court granting defendant Bradley R. Montgomery's

motion to quash arrest and suppress evidence.

		Affirmed.   

		McCULLOUGH, P.J., and APPLETON, J., concur.