ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Clements, 2012 IL App (3d) 110213

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v.

JASON W. CLEMENTS, Defendant-Appellee.

 District & No. Third District

Docket Nos. 3-11-0213, 3-11-0407 cons.

Filed September 5, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant was not seized when, as he approached a roadside safety

checkpoint at a high rate of speed, an officer waved his flashlight at

defendant and shouted at him to slow down and defendant pulled over

and parked his car, even though he was not one of the “every third

vehicles” intended to be stopped, and he remained at the checkpoint

several minutes until the officer approached his car and made

observations that led to his DUI arrest, the circumstances of the case gave

the officer an articulable basis to direct defendant to slow down, the

resulting stop was valid in view of defendant’s traffic violation, and the

grant of defendant’s petition to rescind the summary suspension of his

license and his motion to suppress evidence was reversed.

Decision Under 

Review

Appeal from the Circuit Court of Whiteside County, Nos. 10-MR-96, 10-

DT-221; the Hon. William S. McNeal, Judge, presiding.

Judgment Reversed and remanded.
Counsel on

Appeal

Gary L. Spencer, State’s Attorney, of Morrison (Terry A. Mertel and

Thomas D. Arado, both of State’s Attorneys Appellate Prosecutor’s

Office, of counsel), for the People.

Daniel A. Huffman, of Nelson Kilgus Richey Huffman & BuckwalterSchurman, of Morrison, for appellee.

Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.

Justice Carter concurred in the judgment and opinion.

Justice McDade dissented, with opinion.

OPINION

¶ 1 On October 31, 2010, defendant, Jason W. Clements, stopped his vehicle at a roadside

safety checkpoint, and several minutes later an officer approached defendant’s parked car.

Based on the officer’s observations, including a preliminary breath test and defendant’s

admission to the officer he had consumed alcohol, defendant was arrested for driving under

the influence (DUI) in violation of sections 11-501(a)(1) and 11-501(a)(2) of the Illinois

Vehicle Code (the Code), and issued a notice of statutory summary suspension. 625 ILCS

5/11-501(a)(1), (a)(2), 11-501.1 (West 2010). The trial court granted defendant’s petition to

rescind the statutory summary suspension of his driver’s license (625 ILCS 5/2-118.1(b)

(West 2010)) and defendant’s motion to suppress evidence. The State appeals. We reverse

and remand.

¶ 2 FACTS

¶ 3 On October 31, 2010, defendant stopped his vehicle within the boundaries of a

checkpoint, conducted by the Illinois State Police, after trooper Vaughn Rhodes shouted at

defendant to slow down. Three to five minutes later, defendant’s vehicle remained parked

at the checkpoint, and Rhodes approached defendant’s vehicle after he finished processing

another vehicle. While speaking with defendant, the officer noticed the odor of alcohol and

defendant admitted consuming alcohol.Apreliminarybreath test revealed defendant’s blood

alcohol content was 0.175. The officer subsequently arrested defendant for DUI in violation

of sections 11-501(a)(1) and 11-501(a)(2), and issued a notice of statutory summary

suspension. 625 ILCS 5/11-501(a)(1), (a)(2), 11-501.1 (West 2010).

¶ 4 On January 18, 2011, the court conducted a hearing on defendant’s petition to rescind the

statutory summary suspension. At the summary suspension hearing, Rhodes testified that on

October 31, 2010, he was assigned to assist at a checkpoint located on Illinois Route 30, a

two-lane highway for eastbound and westbound traffic. According to the officer, the

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established protocol for the checkpoint required the officers to stop every third vehicle

approaching the location from either direction of travel. Rhodes testified there were between

six and eight uniformed State Police troopers working at the checkpoint that night.

According to Rhodes, at least two of the police vehicles had their overhead oscillating lights

activated and there were posted signs alerting oncoming motorists of the approaching

checkpoint.

¶ 5 Rhodes testified that at approximately 3:22 a.m. on October 31, 2010, he was on the side

of the road, speaking to the driver of another stopped vehicle, when defendant’s vehicle

approached the checkpoint at a high rate of speed. Concerned, Rhodes turned away from the

driver he was speaking to, faced the roadway, waved his flashlight, and shouted at defendant

to slow down. Rather than simply reducing his speed, defendant pulled over and parked his

vehicle. Defendant was not the third oncoming car approaching the checkpoint.

¶ 6 Rhodes observed defendant’s car remained parked at the checkpoint for three to five

minutes while Rhodes finished processing the other motorist. Consequently, Rhodes

approached defendant’s vehicle, which remained parked within the boundaries of the

checkpoint, and Rhodes made certain observations which resulted in defendant’s arrest for

DUI.

¶ 7 Defendant argued to the trial court that the traffic stop violated his fourth amendment

rights. Defendant claimed his rights were violated because his vehicle was not the third

vehicle and he did not commit a traffic violation prior to stopping at the checkpoint.

¶ 8 The trial court found Rhodes acted properly and did not have a subjective intent to stop

defendant’s vehicle. However, the court found defendant was seized because a reasonable

person would not have felt free to travel through the checkpoint, without stopping, based on

Rhodes’s conduct. Thus, the trial court ordered the rescission of defendant’s summary

suspension. On February 10, 2011, the State filed a motion to reconsider, which the trial

court denied.

¶ 9 On May 19, 2011, defendant filed a motion to suppress evidence. The next day, the court

conducted a hearing on the motion. At the hearing, Rhodes testified he did not know exactly

how fast defendant was traveling through the checkpoint or whether defendant’s speed was

over the posted speed limit. Nonetheless, presumably based on the road conditions present

at the checkpoint, the officer concluded defendant’s rate of speed was too fast and verbally

directed him to slow down.

¶ 10 After hearing the evidence, the trial court allowed defendant’s motion to suppress. The

trial court found a seizure occurred for fourth amendment purposes because a reasonable

person in defendant’s position would not have felt free to leave. Furthermore, the court

determined the encounter was improper because defendant was not traveling in a vehicle

which should have been selected for a random inspection according to the established

checkpoint procedures, nor did the officer have reasonable suspicion of a criminal activity

before he approached and spoke to defendant at the scene. The State appeals.

¶ 11 ANALYSIS

¶ 12 The State contends the trial court erred by granting both defendant’s petition to rescind

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the summary suspension and his motion to suppress. The State’s arguments regarding both

the petition and motion are similar. Specifically, the State argues defendant’s encounter with

Rhodes was consensual and does not qualify as a seizure because defendant voluntarily

stopped his vehicle within the checkpoint. Alternatively, the State argues even if defendant

was seized, Rhodes had reasonable suspicion to stop the vehicle because Rhodes observed

defendant traveling at a high rate of speed through a checkpoint. Furthermore, the State

contends the seizure was reasonable because Rhodes was acting in a community caretaker

capacity when he approached defendant’s vehicle.

¶ 13 A de novo standard of review applies to the ultimate determination of whether the

petition to rescind the statutory summary suspension or motion to suppress should have been

granted, but we will defer to the trial court’s findings of fact, unless they are against the

manifest weight of the evidence. People v. Wear, 229 Ill. 2d 545 (2008); People v.

Luedemann, 222 Ill. 2d 530 (2006). We first address the issue of whether defendant was

seized as a result of Officer Rhodes’s conduct. Then, assuming arguendo defendant was

seized, we will consider whether the officer had a reasonable suspicion of criminal activity

that would justify stopping defendant’s vehicle.

¶ 14 I. Whether Defendant Was Seized

¶ 15 The fourth amendment of the United States Constitution and article I, section 6, of the

Illinois Constitution guarantee citizens the right to be free from unreasonable searches and

seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. An individual “may not be

lawfully seized without reasonable, objective grounds to support the seizure.” People v.

Davenport, 392 Ill. App. 3d 19, 27 (2009).

¶ 16 To determine whether the interaction between a law enforcement officer and a motorist

qualifies as a seizure for fourth amendment purposes, we must objectively consider whether,

in light of the circumstances surrounding the incident, a reasonable, innocent person would

have felt free to decline the officer’s requests or would have felt free to terminate the

encounter. United States v. Mendenhall, 446 U.S. 544 (1980); Luedemann, 222 Ill. 2d 530.

After the officer requests a motorist to stop, certain factors that may be considered to

determine whether a seizure occurred include: (1) the threatening presence of several police

officers; (2) an officer’s display of a weapon; (3) physical touching of an individual by an

officer; and (4) use of language or tone indicating compliance with some directive was

compelled. Id.

¶ 17 We emphasize that the first objective, but threshold, requirement is whether an officer

made a request for a motorist to stop, or whether the driver presented sufficient evidence

conclusively establishing he involuntarily stopped based on his perception of the officer’s

actions. Neither circumstance was presented by the evidence submitted to the trial court in

support of either defendant’s petition to rescind the statutory summary suspension or

defendant’s motion to suppress.

¶ 18 As noted by the dissent, the trial court’s findings are critically important in this case.

Here, the court did not make a finding that defendant involuntarily stopped his vehicle that

night. Instead, the trial court specifically found Rhodes did not intend to stop defendant’s

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vehicle. This finding is supported by the record and is not challenged on appeal. It is clear

from Rhodes’s undisputed testimony that the officer merely gestured with his flashlight and

shouted “slow down.” Rhodes never ordered defendant to stop. Furthermore, according to

the evidence presented by the defense, no other officer pursued defendant or directed him to

stop.

¶ 19 The precise reason defendant stopped his vehicle and remained at the checkpoint is

unknown because defendant did not testify during the hearing on either the petition to revoke

the statutory summary suspension or the motion to suppress. Without defendant’s testimony

indicating he first observed Officer Rhodes gesture with a flashlight and then felt compelled

to stop, the record does not support an inference that defendant involuntarily stopped his

vehicle based on police conduct. The facts presented to the trial court support multiple,

equally plausible inferences that defendant did not notice Officer Rhodes but may have

voluntarily stopped out of an abundance of caution or confusion or due to other difficulties.

¶ 20 The burden is on defendant to establish a prima facie case for rescission of a summary

suspension. People v. Orth, 124 Ill. 2d 326, 336 (1988). Defendant alleged the police did not

have authority to stop his vehicle. Here, the court unequivocally found this officer did not

intend to stop defendant’s vehicle, and defendant did not present testimony establishing he

involuntarily stopped his vehicle within the roadblock. Thus, it matters not whether this

defendant or some other reasonable person might have remained within the roadblock after

voluntarily stopping his vehicle. Defendant’s testimony regarding his thought process likely

would have helped explain why a reasonable person in defendant’s position would not have

felt free to leave. See People v. Brownlee, 186 Ill. 2d 501, 519 (1999) (stating that, while the

test to determine whether a seizure occurred is an objective one, a driver’s subjective reaction

can be important in assessing the Mendenhall factors).

¶ 21 Without some evidence Rhodes intended to detain defendant or some evidence that

defendant actually perceived Rhodes’s actions required defendant to stop, we conclude an

investigatory stop did not occur in this case. Moreover, defendant did not contest his

detention for purposes of the DUI investigation once the officer approached defendant

several minutes later, after defendant stopped within the boundaries of the roadblock.

Accordingly, we hold defendant was not seized.

¶ 22 II. Whether Rhodes Had a Reasonable Suspicion of Criminal Activity

¶ 23 A valid investigatory stop occurs when the officer creating the seizure had a reasonable

suspicion, based upon specific and articulable facts, of criminal activity to justify the stop

at issue. Terry v. Ohio, 392 U.S. 1 (1968); People v. Greco, 336 Ill. App. 3d 253 (2003).

Generally, a traffic violation provides a sufficient basis for a traffic stop. People v. Rotkvich,

256 Ill. App. 3d 124 (1993). A seizure does not violate the fourth amendment unless the

seizure was unreasonable. People v. Bartley, 109 Ill. 2d 273 (1985).

¶ 24 While the trial court found Rhodes did not subjectively intend to stop defendant at the

checkpoint, had Rhodes intended to stop defendant, the record reveals Rhodes would have

had an ample basis to formulate an intention to stop defendant and require him to remain at

the checkpoint based on the officer’s observations of a violation of section 11-907 of the

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Code. 625 ILCS 5/11-907(c)(2) (West 2010). The record reveals there were multiple squad

cars parked at the checkpoint, some with activated oscillating lights, and at least one other

motorist located on the side of the roadway with Rhodes standing nearby. Under these

circumstances, the Code requires a driver, such as defendant in this case, to slow down,

proceed with caution, and then maintain a safe speed for the road conditions present when

approaching a stationary emergency vehicle, such as those present on the roadway on the

night of defendant’s arrest. 625 ILCS 5/11-907(c)(2) (West 2010). Obviously, Rhodes’s

belief defendant was driving too fast was not based on the posted speed limit, but rather, this

belief was related to valid safety considerations resulting from the presence of multiple

emergency vehicles and other traffic conditions on the roadway due to the checkpoint itself.

¶ 25 After observing defendant approach the checkpoint at an unsafe speed, we conclude

Rhodes had an articulable basis to direct the car to slow down, which we will assume, for

purposes of this appeal, caused defendant to stop. Therefore, even if we assume Rhodes

intended to stop defendant, which is contrary to the court’s finding, the detention constituted

a valid traffic stop based on the traffic violation Rhodes witnessed before shouting at

defendant to slow down.

¶ 26 Since this issue is dispositive, it becomes unnecessary to address the State’s argument

Rhodes was acting in a community caretaker capacity when he approached a driver who

stopped at the roadblock without being directed to do so. Accordingly, we reverse the trial

court’s grant of defendant’s petition to rescind and motion to suppress, and we remand the

cause for further proceedings.

¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, the judgment of the trial court of Whiteside County is

reversed, and the cause is remanded for further proceedings.

¶ 29 Reversed and remanded.

¶ 30 JUSTICE McDADE, dissenting.

¶ 31 The majority has reversed and remanded the decision of the circuit court of Whiteside

County suppressing evidence gained from defendant, Jason Clements, after he pulled off the

road during a roadside safety check and rescinding his statutory summary suspension. For

the reasons that follow, I respectfully dissent.

¶ 32 At the heart of this appeal is whether Clements was seized and, if so, whether evidence

acquired during this seizure was properly suppressed and his summary suspension was

properly rescinded.

¶ 33 In determining whether a seizure has occurred, we focus on the perceptions and beliefs

of the person seized, but not in a subjective way. Our test is an objective one: would a

reasonable person in the Defendant’s situation believe he had been stopped and was not free

to leave? United States v. Mendenhall, 446 U.S. 544, 554 (1980). The majority correctly

points out the four Mendenhall factors indicating a seizure: (1) the threatening presence of

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several officers; (2) the display of a weapon by an officer; (3) some physical touching of the

person; or (4) using language or tone of voice compelling the individual to comply with the

officer’s requests. Mendenhall, 446 U.S. at 554; People v. Luedemann, 222 Ill. 2d 530, 553

(2006) (adopting Mendenhall standard).

¶ 34 While the events in this case are unusual, I do believe the facts, when analyzed in

conjunction with the Mendenhall factors, establish that a reasonable person in the

defendant’s situation would have felt he had been stopped and was not free to leave. My

belief draws support from the deferential portion of our standard of review. Our standard of

review on appeals from rulings on motions to suppress is a dual one. We test the trial court’s

findings of fact to determine if they are against the manifest weight of the evidence. If they

are not, we defer to those findings. Luedemann, 222 Ill. 2d at 542. Our review of the trial

court’s conclusions of law is de novo. Luedemann, 222 Ill. 2d at 542.

¶ 35 The trial court’s findings of fact are critically important to my dissent. The only record

we have of the January 18, 2011, hearing on the defendant’s petition to rescind the statutory

summary suspension is a bystander’s report certified by the court. It reported that the court

had found that

“while Trooper Rhodes had not intended to stop the Appellee’s vehicle, a reasonable

person in the Appellee’s position would not have felt free to leave. Therefore, the trial

Court ruled that the Appellee had been seized, and the Petition to Rescind Statutory

Summary Suspension was allowed.”

¶ 36 The findings of fact and law issued by the court following the May 19, 2011, hearing on

the motion to suppress were actually reduced to an order and were more specific. The court

found:

“1. That on October 31, 2010, the Illinois State Police conducted a roadside safety

check on U.S. Route 30 and Dakin Road in Whiteside County, Illinois.

2. Said roadside safety check was conducted with at least 6-8 Illinois State Troopers

all wearing their police uniforms and accompanying sidearms. Additionally, 6-8 State

Police vehicles were present at the checkpoint, many of them with lights and flashers

engaged.

3. At approximately 2:33 a.m., Trooper Vaughn Rhodes of the Illinois State Police

was engaged in the stop of a vehicle other than that of the Defendant.

4. While engaged with said vehicle, Trooper Rhodes gestured to the Defendant’s

vehicle in a manner which a reasonable person would have believed to stop at said safety

check.

5. TrooperRhodes acknowledged that the Defendant’s vehicle was not the ‘next third

car’ to be stopped as prescribed by regulations promulgated by the State Police

Supervisor prior to the commencement of the roadside safety check and that said

regulations had not been changed by the Supervisor prior to the stop of the Defendant’s

vehicle.

6. Trooper Rhodes further testified that he had no knowledge of this roadside safety

check being published in any local newspaper prior to October 31, 2010, and no other

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evidence was introduced of any publication.”

¶ 37 In making its rulings, the trial court drew what I believe to be a completely reasonable

inference that, but for the existence of the safety checkpoint, the actions of Trooper Rhodes

and the show of police force and authority represented by the number and appearance of the

troopers and official vehicles at the checkpoint, defendant would neither have pulled off the

road and stopped within the checkpoint area nor stayed in his vehicle waiting for Rhodes to

come and speak with him.

¶ 38 The trial court also found, based on the facts and reasonable inferences drawn from those

facts, that there was no articulable reason for the stop. Clements’s car was not the “next third

car” to be stopped in the execution of the checkpoint’s protocols; nor–since Rhodes did not

intend to stop Clements but merely to suggest that he reduce his speed and since Rhodes

testified that he had no idea of Clements’s actual speed–was he stopped because he was

suspected of violating the law. I acknowledge that Clements could have been driving too fast

for conditions–presumably the existence of the checkpoint–but Rhodes’s lack of intent to

stop him suggests caution rather than alarm. Moreover, I note that there is no objective 1

evidence–such as radar detection–that would indicate that defendant was either exceeding

the posted speed limit or driving too fast for conditions.

¶ 39 The trial court’s factual findings are not against the manifest weight of the evidence.

Indeed, they mirror the testimony of the State Police trooper who was the only witness at

both hearings. While the majority emphasizes the lack of defendant’s testimony, this has, in

my opinion, no bearing on the issue before us due to the fact that the pertinent test is an

objective, rather than subjective, one. The trial court found that “Trooper Rhodes gestured

to the defendant’s vehicle in a manner which a reasonable person would have believed to

stop at said safety check.” Rhodes had testified he felt defendant was driving too fast. It is

a reasonable inference that defendant did not intend to stop but did so because of Rhodes’s

gesture and shout. In addition, the conclusion reached by the trial court that no reasonable

person in the defendant’s circumstances would have felt free to leave flows logically from

the facts.

¶ 40 The facts are bizarre, but I believe the trial court reached a conclusion on those facts that

is consistent with existing case law and that its decision should be affirmed.

I am, of course, assuming that the existence of the checkpoint regulations would not 1

preclude the police fromstopping someone, not the next third person, who was actually violating the

law.

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