## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Petitioner-Appellant, v. J ASON W. CL EMENTS, Def endant- Appellee

.

District & N o. Third District Docke t Nos. 3-11-0213, 3-11- 0407 cons.

Filed September 5, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant was not seized when, as he app ro ac h ed a roadside safe ty chec kpoint at a high rate of speed, an office r wa v ed his flashlight at defe ndant and shouted at him to slow down and defe nd ant pulled over and parke d his car , even though he was not one of t h e “e v ery third vehicles” intended t o b e stopped, and he rema ined at the chec kpoint

sever al minutes until the o ffice r approa ched his car and made observations that led to his DUI arr est, the circ umstances of the case g ave the office r an articula

ble basis to direc t defe ndant to s l o w down, the resultingstop was valid in vie w of defe ndant’s traff ic violation, and the
g rant of def

en d ant’s petition to resc ind the summary suspension of his license a nd his moti on to suppress evidenc e wa s reve rsed.

Dec ision Under Review Appea l from the Circuit Court of Whit eside County
, Nos. 10-MR-96, 10- DT-221; the Hon. William S. M cNe al, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Gar y L

. Spencer
, State’s Attorney
, of Morrison (Terry A. Mertel and Thomas D. Ara do, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Daniel A. Huffma

n, of Nelson Kilgus Richey Huffma n & Buc kwalter

Schurman, of Mor

rison, for a

ppellee.

Panel J USTI CE WR I GHT de livered the judgme nt of the cour t, with opinion.
J ustice Carte r conc urre d in the judgme nt and opinion.
J ustice McDa de dissented, with opinion.

OP INION

¶ 1 On Octobe r 31, 2010, defe ndant, J ason W. Clements, stopped his vehicle at a r oadside safe ty chec kpoint, and several minutes later an off icer approa ched defe ndant’s parked car. Ba sed on the office r’s observations, including a preliminary breath test and defe n d ant’s admission to the office r he had consumed alcohol, defe ndant was arr ested for driving under the influence (DUI ) in violation of sections 11-501(a )( 1 ) and 11-501(a )(2) of the I llinois Vehicle C o d e (t he C ode), and issued a noti ce of statutory summary suspension. 625 I L CS 5/11-501(a) (1), (a) (2), 11-501.1 (West 2010). The trial court g rante d defe ndant’s petition to

resc ind the statuto ry s u m m ary suspension of his driver’ s license (625 I L CS 5/2-118.1(b) (West 2010)) and defe ndant’s motion to suppress e vidence . The State a ppeals. We re verse and re mand.

¶ 2 FACTS ¶ 3 On Oc t o b er 31, 2010, defe ndant stopped his vehicle within t h e b o u n d ar i es o f a chec kpoint, c onducted by the I llinois State Police, afte r trooper Vaughn Rhodes shouted at defe ndant t o slow down. Three to five mi nutes later, defenda nt’s vehicle rema ined parked
at the chec kpoint, and Rhodes approa ched defe ndant’s vehicle afte r he finished proce ssing another vehicle. Whil e speaking with defe ndant, the office r noticed the odor of alcohol and defe ndant admitted consuming alcohol

. A preliminary breath test reve aled defe ndant’s blood alcohol content was 0.175. The office r subsequently arr ested defe ndant for DUI in violation of sections 11-501(a )(1) and 11-501(a )(2)
, and is s u ed a n o tice of statutory summary suspension. 625 I L CS 5/ 11-501(a )(1) , (a) (2), 11- 501.1 (West 2010). ¶ 4 On J anuar

y 18, 2011, the court conducte d a hearing on defe ndant’s petition to resc ind the statutory summary suspension. At the summary suspension hearing, Rhodes testified that on October 31, 2010, he wa s assig ned to assist at a chec kpoint located on I llinois Route 30, a
t wo -l ane highw ay for eastbound and westbound traff ic. Acc ording to the office r, th e

-2-established protocol for the chec kpoint require d the office rs to stop ever y third v eh i cle
approa ching the location from either direc tion of trave l. Rhodes testified there wer e betwee n six an d eight uniformed State Police troopers working at the chec kpoint that night. Acc ording to Rhodes, at least two of the police vehicles had their overhe ad oscillating lights activate d and there wer e posted signs aler ting oncom i ng motorists of the approa ching chec kpoint. ¶ 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 d ef en d an t’s vehicle
approa ched the chec kpoint at a high rate of speed. Concerne d, Rhodes turned awa y from the driver he was speaking to, fac ed the roadw ay , wave d his flashlig ht, and shouted at defe ndant
to slow down. Rather than simply reduc ing his speed, defe ndant pulled over and parke d his vehicle. D efe ndant was not the third onc oming c ar a pproac hing the chec kpoint. ¶ 6 Rhodes observe d defe ndant’s car rema ined parke d at the chec kpoint for t h re e t o fi v e minutes while Rho d es finished proce ssing the other motorist. Consequently
, Rhodes
approa ched defe n d an t’s vehicle, which rema ined parke d within the boundarie s of the chec kpoint, a

nd Rhodes made cer

tain observations whic h resulted in de fenda nt’s arr est for DUI

. ¶ 7 Def

endant argued to the tr i al co urt that the traff ic stop violated his fourth ame ndment right s

. Def

endant claimed his rights wer e violated beca use his vehicle was not the third vehicle a nd he did not commit a traff ic violation prior to stopping at the chec kpoint. ¶ 8 The trial court found Rhodes acte d proper ly and did not have a subjective intent to stop defe ndant’s vehicle. However, the court found defe ndant was seized beca use a re asonable
person would not have felt fre e to trave l through the chec kpoint, without stopping, based on Rhodes’s conduct. Thus, the trial court order ed the resc ission of def en d an t ’s summary suspension. On Fe bruar

y 10, 2011, the State filed a motion to rec onside r, wh i ch the trial court de nied. ¶ 9 On May 19, 2011, defe ndant filed a motion to suppress evidenc e. The next day
, the court conducte d a hearing on the motion. At the hearing, Rhodes testified he did not know exactly how fast defe ndant was trave ling through the chec kpoint or whether defe ndant’s speed was

over the posted speed limit

. Nonethele ss, pr esumably based on the road conditions pr esent at the chec kpoint, the office r conclude d defe ndant’s rate of speed was too f ast and verba lly direc ted him to slow down. ¶ 10 After hearing the evidenc e, the trial court allowed defe ndant’s motion to suppress. The trial court found a seizure occur red for fourth amendment purposes beca use a rea sonable
person in defe ndant’s positi o n wo u l d not have felt fre e to leave

. Fur thermore
, the court deter mined the encounte r was improper beca use defe ndant was not trave ling in a vehicle which should have been selec ted for a random inspection acc ording to the established chec kpoint procedur es, nor did the of fice r have rea sonable suspi cion of a criminal ac tivity befor e he a

pproac hed and spoke to defe ndant at the sc ene. T he State appe als.

¶ 11 ANALYSI S ¶ 12 The State contends the trial court err ed by g ranting both de fenda nt’s petition to resc ind

-3-the summary suspension and his motion to suppress. The State’s arguments reg arding both

the petition and motion are simil ar. Specifica lly
, the State argues defe ndant’s encounte r with Rhodes was consensua l and does not qualify as a s ei z u re beca use defe ndant voluntarily stopped his vehicle within the chec kpoint. Alterna tively
, the State arg

ues even if defe ndant was seized, Rhodes had rea sonable suspicion to stop the vehicle beca use Rhodes obser

ved defe ndant trave ling at a high rate of speed through a chec kpoint. Fur therm o re , t h e State contends the seizure was rea sonable becauseRhodes was a ctingin a communi ty car etake r capa city when he approa ched de fenda nt’s vehicle. ¶ 13 A de novo standard of revie w applies to the ult i m at e d et er m i n at i o n o f whether the petition to resc ind the statutory summary suspension or motion to suppress should have been
g rante d, b u t we wi ll defe r to the trial court’s finding s of fac t, unless they are ag ainst the manifest weight of the evidenc e. People v. W ear , 2 2 9 I ll. 2d 545 (2008); People v. Luedemann
, 222 I ll. 2d 5 3 0 (2 0 0 6 ). W e first addre ss the issue of whether defe ndant was seized as a re sult of Offic er Rhodes’s conduct. Then, assuming arguendo defe ndant was seized, we will consider whether the office r had a rea sonable suspicion of criminal activity that would justify

stopping de fenda

nt’s vehicle.

¶ 14 I . Whether De fenda nt Was S eized ¶ 15 The fourth amendment of the Unit ed S tates C onstitut ion and article I , section 6, of the I llinois Constitution gua

rante e citizens the right to be fre e from unrea sonable sear ches and

s eiz ures. U.S. Const., amend. IV; I ll. Const. 1970, art. I
, § 6. An individual “may not b e lawfully seized without rea sonab l e, objective grounds to support the seizure.” People v. Dave nport , 392 I ll. App. 3d 19, 27 (2009). ¶ 16 To deter

mine whether the interac tion betwee n a law enfor ceme nt office r and a motorist qualifies as a seizure for fourth amendment purposes, we must objectively consider whether
, in light of the circ umstances surrounding the incident, a rea sonable, innocent person would have felt fre e to decline the office r’s reque sts or would have fe lt fre e to terminate the
encounte r. United States v. Mende nhall
, 446 U.S. 544 (1980); Luedemann
, 222 I ll. 2d 530. Af ter the office r reque sts a motorist to stop, cer tain fac tors that may be considere d to deter mine whether a seizure occur red include: (1) the threatening prese nce of sever al police office rs; (2 ) an o ffice r’s displ ay of a wea pon; (3) phy sical t ouching of an individual by an office r; and (4) use of languag e or to n e i n d i ca t ing compliance with some direc tive was compelled. Id. ¶ 17 We emphasize that the first objective, but threshold, requirement is whether an officer

m ade a request for a motorist to stop, or whether the driver prese nted sufficie n t ev i d en ce conclusively establishing he i nvoluntarily s t o p p ed based on his perc eption of the officer ’s actions. Ne ither circ umstance w as prese nted by the evidenc e submitt ed to the trial court in support of either defe ndant’s petition to resc ind the statutory sum m ary s u s pension or defe ndant’s motion to suppress. ¶ 18 As noted by the dissent, the trial court’s finding s are cr i t i ca l l y important in this case. Her e, the court did not make a finding that defe ndant involuntarily stopped his vehicle that night. Instead, the trial court specific ally found Rhodes did not intend to stop defe ndant’s

-4-vehicle. This finding is supported by the record a nd is not challeng ed on appea l. It is clea r from Rhodes’s undisputed testimony that the office r mere ly g estured with his flashlig ht and shouted “slow down.” Rhodes never order ed defenda nt to stop. Fur

thermore
, acc ording to the evidenc e prese nted by the defe nse, no other office r pursued defe ndant or direc ted him to stop. ¶ 19 T h e p re ci s e re as o n defe ndant stopped his vehicle and rema ined at the chec kpoint i s unknown beca

use defe ndant did not testify during the hearing on either the petition to revoke the statutory summary suspension or the motion to suppress. Wit hout defe ndant’s testimony indicating he first observe d Offic er Rhodes g esture with a flashlig ht and then felt compelled
to stop, the rec ord does not support an infere nce that defe ndant invol u n t arily stopped his vehicle based on police conduct. The fac t s p re sented to the trial court support multipl e, equally plausible infere nces that defe ndant did not notice Offic er Rhodes but m ay have voluntarily stopped out of an abundanc e of caution or confusion or due to other difficulties. ¶ 20 The burde n is on defenda nt to establish a prima faciecase for r escission of a summar y suspension. People v. Orth
, 124 I ll. 2d 326, 336 (1988). Def endant alleg ed the police did not have aut h o ri ty to stop his vehicle. Here
, the court unequivoca lly found t his office r di d not intend to stop defe ndant’s vehicle, and defe ndant did not prese nt te stimony establishing he involuntarily stopped his vehicle within the roadbloc k. Thus, it matters not whether this defe ndant or some other rea sonable person might have rema ined within the roadbloc k afte r voluntarily stopping his vehicle. Def endant’ s testimony reg arding his thought proce ss likely would have helped explain why a rea sonable person in defe ndant’s position would not have felt fre e to leave

. See People v. Brownlee
, 186 I ll. 2d 501, 519 (1999) (stating that, while the
test to deter

mine whether a seizure occur red is an objective one, a driver’ s subjective rea ction can be important in assessingthe Mende nhall fac tors). ¶ 21 Wit hout some evidenc e Rhodes intended t o d et ai n d efe ndant or some evidenc e that defe ndant actually perc eived Rhodes’s actions require d defe ndant t o stop , we conclude an inv es t i gatory stop did not occur in this case

. Moreove r, defe ndant did not contest his detenti o n for purposes of the DUI investigation once the office r approa ched defe ndant

sever al minutes later, afte r defe ndant stopped within the boundaries o f the roadbloc k. Acc ording ly , we hold def endant wa s not seized.

¶ 22 I I . Whether Rhodes Ha d a Rea sonable Suspicion of Criminal Activity ¶ 23 A valid investigatory stop occur s when the office r cre ating the seizure had a rea sonable

s uspicion, based upon specific and articulable facts, of criminal activity to justif y t h e s t o p at issue. Terry v. Ohio
, 392 U.S. 1 (1968); People v. Grec o , 336 I ll. App. 3d 253 (2003). Gene rally
, a traff

ic violation provides a sufficie nt basis for a traff ic stop. People v. Rotkvic h
, 256 I ll. App. 3d 124 (1993). A seizure does not violate the fourth am en d m en t unless the seizure was unr easona

ble. People v . Bartley , 109 I ll. 2d 273 (1985). ¶ 24 Whil e the trial court found Rhodes did not sub j ectively intend to stop defe ndant at the chec kpoint, ha d Rhodes intended to stop defe ndant, the rec ord reve als Rhodes would have had an ample basis to formulate an intention to stop defe ndant and require him to rema in at the chec kpoint based on the o ff i cer ’s observations of a violation of section 11-907 of the

-5-Code. 625 I L CS 5/11-907(c) (2) (West 2010). The rec ord reve als there wer e multipl e squad

car s parke d at the che ckpoint, some with activated osc illating lig hts, and at lea st one other motorist located on the side of the roadw ay with Rhodes standing nea rb y

. Under these circ umstances, t h e C o de require s a driver, such as defe ndant in this case , to slow down,
proce ed with ca

ution, and then maintain a safespeed for t he road conditions present whe n approa ching a stationary emerg ency vehicle, such as those prese nt on the roadw ay on the night of d efe ndant’s arr est. 625 I L CS 5/11-907(c) (2) (West 2010). Obviously
, Rhodes’s belief defe ndant was driving too fast was not based on the posted speed limit
, but rathe r, this belief was related to valid safe ty consideratio n s re s ulting from the prese nce of multipl e

emer g ency vehicles and other traff ic conditions on the roadw ay due to the chec kpoint itself. ¶ 25 After observing defe ndant approa ch th e ch ec kp o int at an unsafe speed, we c onclude Rhodes had an articula

ble basis to direc t the car t o slow down, whic h we wi l l assum e, for
purposes of this appea l, ca u s ed defe ndant to stop. There fore
, even if we assume Rhodes intended to stop defe ndant, which is contra ry to the court’s finding
, the detention constituted

a valid traff

ic stop based on the traff ic violation Rhodes witnessed befor e shouting at defe ndant to slow down. ¶ 26 Since t his issue is dispositi ve, it become s unnece ssary to add re s s t h e State’s argument Rh o d es was acting in a community car etake r capa city when he approa ched a driver wh o stopped at the roa dblock without beingdirec ted to do so. Acc ording ly , we r ever se the trial court’s grant of de fenda

nt’s petition to re scind and motion to suppress, and we r emand the

cause for f

urther pr ocee dings.

¶ 27 CONCLUSI ON ¶ 28 For the fore g oing rea sons , t h e j u d gm en t o f t h e trial court of Whit eside County is

reve rsed, a

nd the ca use is rema

nded for further proce eding s.

¶ 29 Reverse d and re manded.

¶ 30 J USTI CE McDADE, dissenting

. ¶ 31 The majority has reverse d and remanded the decisio n o f the circuit court of Whi teside County suppressing evidenc e g ained from defe ndant, J ason Clements, afte r he pulled off the road during a roadside safe ty che ck an d resc inding his statutory summary suspension. For the re asons that follow, I

respe ctfully

dissent. ¶ 32 At the hear

t of this appea l is whether Clements was seized and, if so, whether evidenc e acquir ed during this seizure was proper ly suppressed and h i s s u m mary suspension was proper ly resc inded. ¶ 33 In deter

mining whether a seizure has occur red, we focus on the perc eptions and belief s of the person seized, but not in a subjective way

. Our test is an objective one: woul d a

rea sonable person in the Def endant’ s situation believe he had been stopped and was not fre e to leave ? United States v. Mende nhall
, 44 6 U. S

. 544, 554 (1980). The majority corr ectly points out t he four Mende nhall fac tors indicating a seizure: (1) the threateningprese nce of

-6-sever al office rs; (2) the display of a wea pon by an office r; (3) some phy sical touching of the
person; or (4) using languag e or tone of voice compelling the individual to comply with the office r’s reque sts. Mende nhall
, 446 U.S. at 554; People v. Luedemann
, 222 I ll. 2d 530, 553 (2006) ( adopting Mende nhall standard)

. ¶ 34 Whil e the events in this ca s e ar e unu s u al
, I do believe the fac ts, when analy zed in conjunction with the Mende nhall fac tors, establish that a rea sonable person i n the defe ndant’s situation would have felt he had been stopped and was not fre e to leave

. My belief draw s support from the defe rential portion of our standard of revie w. Our standard of revie w on appea ls from ruling s on motions to suppress is a dual one. We test the trial court’s finding s of fac t to deter

mine if they are ag ainst the manifest weight of the evidenc e. I f they

are not, we defe r to those finding s. Luedemann
, 222 I ll. 2d at 542. Ou r re v i ew o f the trial court’s c onclusions of law is de novo. Luede mann , 222 I ll. 2d at 542. ¶ 35 The trial court’s finding s of fa ct ar e critically important to my

dissent. The only rec ord

we have of the J anuar

y 18, 2011, hearing on the defe ndant’s petition to resc ind the statutory summary suspension is a by stander’ s repor t c ertified by the court. It r eporte d that the court had found that “while Trooper Rhodes had not intended to stop the Appellee ’s vehicle
, a rea sonable person in the Appellee’s posi tion would not have felt fre e to leave . There fore
, the t rial Court ruled that the Appellee had been seized, and the Petition to Rescind S t at u t ory Summary Suspension was allowed.” ¶ 36 The finding s of fac t and law issued by the court following the May 19, 2011, hearing on the motion to suppress wer e actua lly reduc ed to an order and wer e more specific

. The court found:
“1

. That on October 31, 2010, the I llinois State Police conducte d a roadside s afet y chec k on U.S. Route 30 and Dakin Road in Whiteside County , I llinois

. 2. Said roadside safe ty chec k was conducte d with at least 6-8 I llinois State Trooper s al l we aring their police uniforms and acc ompanying sidearms. Additionally
, 6-8 Sta t e Police vehicles wer e prese nt at the chec kpoint, many of t h em with lights and flasher s eng ag ed. 3. At approximately

2:33 a.m., Trooper

Vaughn Rhodes of t he I llinois State Police

was e ng ag ed in the stop of a ve hicle other than that of the D efe ndant.
4. Whil e eng ag ed with said vehicle, Trooper Rhodes g estured to the Def endant’s vehicle in a manner which a rea sonable person would have believed to stop at said safe ty chec k.
5. Trooper Rhodes acknow ledg ed that the Def endant’ s vehicle was not the ‘next third car’ to be stopped as presc ribed by regulations promulg ated by the State Police Supervisor prior to the commence ment of th e ro ad s i d e safe ty chec k and that said
regulations had not been chang ed by the Supervisor prior to the stop of the Def endant’ s vehicle.
6. Trooper Rhodes further testified that he had no knowledg e of this roadside safe ty chec k being published in any local newspaper prior to October 31
, 2 0 1 0
, an d no other

-7-evidenc e wa s introduced of any publication.” ¶ 37 In making i ts ruling s, the trial court drew what I believe to be a completely rea sonable infere nce that, but for the exis tence of the safe ty chec kpoint, the actions of Trooper Rhodes and the show of

police force and authority repr esente d by the number and appea ranc e of the troopers and officia l vehicles at the chec kpoint, defe ndant would neither have pulled off the road and stopped within the chec kpoint are a nor stayed in his vehicle waiting for Rhodes to

come a nd speak w ith him. ¶ 38 The trial court also found, based on the fac ts and rea sonable infere nces drawn from those fac ts, that there was no articula ble rea son for the stop. Clements’s car was not the “next third

car ” to be stopped in the execution of the chec kpoint’s protocols; nor–since Rhodes did not intend to stop Clements but mere ly to s u gges t t h at he reduc e his speed and since Rhodes testified that h e h ad no idea of Clements’s actua l speed–w as he stopped beca use he was suspected of violating the law. I acknow ledg e that Clements could have been driving too fast for condi t i ons–presumably the exis tence of the chec kpoint–but Rhodes’s lack of intent to

s t o p h i m sug g ests caution rathe r than alar m. Moreove r, I note that there is no objective 1 evidenc e–such as rada

r detection–that would indicate that defe ndant wa s either ex cee ding the posted spee d limitor drivingtoo fast for c onditions. ¶ 39 The trial court’s fac tual fi n d i n gs are not ag ainst the manifest weight of the evidenc e. Indeed, they mirror the testimony of the State Poli ce tro o p er who was the only witness at both hearings. Whil e the majority emphasizes the lack of defe ndant’s testimony
, this has, in
my opinion, no bearin g on the issue befor e us due to the fac t that the pertinent test is an objective, r ather

than subjective, one . The trial c ourt found that “T rooper Rhodes g estured
to the defe ndant’s vehicle in a manner which a rea sonable person would have believed to stop at s aid s afe ty chec k.” Rhodes had testified he fe lt defenda nt was driving too fast. I t is

a rea sonable infere nce that defe ndant did not intend to stop but did so beca use of Rhodes’s
g esture and s ho u t

. In addition, the conclusion rea ched by the t rial court that no rea sonable person in the defendant’s circumstanc es would have felt fr ee to lea ve flows log ically

from the fa cts. ¶ 40 The fac ts are bizarre, but I believe the trial court rea ched a conclusion on those fac ts that is consistent with ex isting ca se law a nd that its decision should be aff irmed.

I am, of cours e, ass um in g t h a t the exi st enc e of the che ckpoin t re gulat ion s woul d not 1
pre cl ude the pol ic e fr om st oppi ng someone, not the nex t thi rd per son , who was actual ly viola ti ng the la w.

-8-