964 N.E.2d 183, 2012 Ill.App. LEXIS 7 (2nd Dist. 2012)
DEFENDANT’S MOTION TO QUASH AFFIRMED WHERE INFORMATNT MERELY REPORTED CONTEMPORANEOUS NONINCULPATORY OBSERVATIONS REGARDING THE DESCRIPTION AND LOCATION OF DEFENDANT’S VEHICLE, AND INFORMANT’S INFORMATION CONTAINED NO “PREDICTIVE VALUE”.
At the Hearing on Defendant’s motion to quash his arrest for Driving Under the Influence (625 ILCS 5/11-501 (a)(1) & (a)(2)); Defendant testified that on the evening of this incident he dined with a friend at a restaurant. Defendant had two glasses of wine with dinner, and left the restaurant at about 11:30 p.m. after having an argument with his friend. He drove to a bar where he had a glass of wine. He ordered another glass of wine, but did not finish it. After leaving the bar, Defendant drove to a gas station. Defendant testified that he did not go to the gas station to purchase gasoline, but rather, to “cool down a bit” from his argument with his friend. He parked in a marked space alongside the main building and carwash and turned off the engine and had a cigarette. There were no vehicles parked in the other spaces alongside the building. Suddenly he saw a police car’s emergency lights behind him. Then he observed another police car to the left. The police car that had pulled in behind his vehicle was about 15 feet away, and Defendant “really couldn’t back up”. Two police officers, one male and one female, approached Defendant and told him to get out of the vehicle.
One Police Officer testified that on the evening of this incident, at about 12:30 a.m., she received a dispatch regarding “a possible DUI with a complainant following”. The Officer was advised that the complainant had observed the subject drinking at a bar and was concerned about him driving. The complainant thought that the subject was drunk. The complainant was following the subject, and she relayed to police the license plate number and location of the vehicle. The Officer located a vehicle fitting the description of the Defendant’s vehicle at a gas station. There were three marked parking spaces by a carwash. The Defendant’s vehicle was parked in the space farthest from the carwash and there were vehicles in the other two spaces. With her emergency lights activated, the Officer pulled into the gas station and parked at an angle behind Defendant’s vehicle. The Officer’s vehicle was about seven feet away from Defendant’s vehicle and she did not believe that her vehicle was positioned so as to block Defendant’s vehicle.
The Officer approached and observed Defendant seated inside the vehicle, and the keys in the ignition. Defendant had bloodshot eyes and the Officer detected the odor of alcohol coming from him. Two other Police Officers had arrived at the gas station in separate vehicles. After speaking with Defendant, the Officer spoke with the complainant, who had followed Defendant to the gas station. The complainant told the Officer that she had seen Defendant drinking wine and vodka at the restaurant and then at the bar. The Officer then returned to Defendant’s vehicle and spoke with the Defendant. Defendant indicated that he had wine and “vodka grapefruit” at the restaurant. He had the same drinks at the bar. The Trial Court granted Defendant’s motion.
The State appealed from the Order of the Trial Court granting Defendant’s motion to quash his arrest for driving under the influence of alcohol and to suppress evidence.
Writing for the Appellate Court, Justice Schostok reviewed Terry v. Ohio, 392 U.S. 1 (1968), where the United States Supreme Court authorized a police officer to effect a limited investigatory stop where there exists a reasonable suspicion, based upon specific and articulable facts, that the person detained has committed or is about to commit a crime. The Court reasoned that in the matter at bar it was necessary to determine at what point a seizure occurred.
The Court reviewed City of Highland Park v. Lee, 291 Ill.App.3d 48, 225 Ill.Dec. 459 (2nd Dist. 1997). In Lee, the Appellate Court held that, when a police officer activates his or her emergency lights to curb a vehicle, a reasonable person in the driver’s position would not feel free to decline the encounter with the officer. Id. at 54. The Court reviewed its decision in Village of Mundelein v. Minx, 352 Ill.App.3d 216, 287 Ill.Dec. 321 (2nd Dist. 1994). In Minx, the Appellate Court extended the rule to cases such as the one at bar, where, with his or her vehicle’s emergency lights activated, a police officer pulls up behind a parked vehicle. The Court noted that when the Officer pulled in behind Defendant’s vehicle with her squad car emergency lights activated, Defendant made no attempt to drive off. The Appellate Court concluded that Defendant, therefore, submitted to the encounter and was seized at that point.
The Court stated that at the point at which the seizure occurred, the Officer had no personal knowledge of any facts suggesting that Defendant was committing or was about to commit a crime. Turning to People v. Linley, 388 Ill.App.3d 747, 328 Ill.Dec. 131 (2nd Dist. 2009), the Appellate Court summarized the general principles that apply when a Terry stop is based on facts not personally known to the officer who effects the stop:
An investigatory stop need not be based on personal observations by the officer conducting the stop (or by those Officers whose knowledge is imputed to the Officer conducting the stop). A stop may also be based on information received from members of the public. However, the informant’s tip must bear “some indicia of reliability” in order to justify the stop. A reviewing court should consider the informant’s veracity, reliability, and basis of knowledge. Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances.
The Appellate Court maintained that the nature of the informant is relevant. Information from a concerned citizen is ordinarily considered more credible than a tip from an informant who provides information for payment or other personal gain. According to the Court, another significant factor in determining the reliability of a tip received from a member of the public is whether, prior to conducting a Terry stop, the officer is aware of facts tending to corroborate the tip. The Appellate Court noted it had observed that corroboration is especially important when the informant is anonymous and is even more important when the anonymous tip is given by telephone rather than in person. The Court maintained that a tip conveyed via an emergency telephone number, a 911 call, should not be considered ‘truly anonymous’, even if the caller does not specifically identify himself or herself. The rationale is that such a caller is likely aware that, because the authorities often record emergency calls and have the means to instantly determine the telephone number from which a call was placed, they may therefore be able to determine the caller’s identity. “That an informant has placed his or her anonymity at risk may be considered in assessing the reliability of the tip”. Linley,Id.
The Appellate Court noted that in the matter at bar, the stop was based on a tip received from an informant. The tip was conveyed to the Officer by a dispatcher; it did not appear that the Officer spoke with the informant until after initiating the Terry stop by parking her police car, with its emergency lights activated, behind Defendant’s vehicle. Only the information relayed by the dispatcher to the Officer was relevant to the question of whether the stop was supported by a reasonable suspicion that Defendant had committed or was about to commit a crime. What the Officer knew based on the dispatch was that the informant had observed an individual drinking at a restaurant called “Redstone”. The informant thought that the subject was “drunk”, and she was “concerned about him driving”. The subject was driving a silver Jeep, and the informant, who was following him, advised police of the location and license plate number of the vehicle. The Court noted that there was no evidence that the informant provided her name or that she contacted the police through an emergency number. Thus, the Court reasoned, the tip must be treated as an anonymous one, and the reliability of the tip hinged on the existence of corroborative details observed by the police. In this regard, according to the Appellate Court, the evidence fell short.
The Appellate Court noted that when the Officer initiated the Terry stop, her personal observations corroborated only noninculpatory aspects of the tip, that a vehicle fitting a certain description would be found at a particular location. The Appellate Court relied upon two United States Supreme Court decisions for further guidance: Florida v. J.L., 529 U.S. 266 (2000) and Alabama v. White, 496 U.S. 325 (1990). These cases held that the corroboration of such details is not enough to establish the requisite degree of reliability. The Appellate Court stressed the independent corroboration by the police of significant aspects of the informant’s predictions—
the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—since corroboration of these predictions imparted some degree of reliability to the other allegations made by the caller.
The Appellate Court concluded that the anonymous tip in the matter at bar lacked predictive value. The Appellate Court concluded that the informant did not predict anything; the informant merely reported contemporaneous observations as to the description and location of a vehicle she was following.
The Appellate Court acknowledged authority holding that the threat that intoxicated drivers pose to public safety justifies some relaxation of the corroboration requirement. People v. Shafer, 372 Ill.App.3d 1044, 311 Ill.Dec. 359 (4th Dist. 2007). The Appellate Court concluded that the reasoning in Shafer, however, did not apply to the instant case. The Court noted that Defendant’s vehicle was not moving and the Officer could have attempted to initiate a consensual encounter in order to determine whether the tip relayed by the dispatcher was reliable. The Appellate Court concluded that there was no urgency since Defendant’s vehicle was not in motion.
The Appellate Court affirmed the judgment of the Trial Court.
David B. Franks
Lake in the Hills, IL