People v. Ewing

NO. 4-07-0184

(As appearing in the Illinois State Bar Association
Traffic Laws and Courts Newsletter, March 2007, Vol. 16, No. 3)

An informant tip received by telephone may form the
basis of a Terry stop if the tip is reliable and the tip allows
the police officer to reasonably infer that a person was involved in
criminal activity.

In January 2007, Defendant, James C. Ewing, was arrested for driving under the influence of alcohol pursuant to 625 ILCS 5/11-501(a) (2). Defendant's driving privileges were thereafter summarily suspended by the Secretary of State, pursuant to sections 11-501.1(e) and 6-208.1(a) (3) of the Illinois Vehicle Code.

In January 2007, Defendant filed a Motion to Suppress Evidence and a Petition to Rescind the statutory summary suspension of his driver’ license. Following a February 2007 hearing, the trial court granted the Motion and Petition. The State appealed, arguing the trial court erred by granting Defendant's Motion to Suppress because the police officer had a reasonable, articulable suspicion to justify a Terry stop (Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968)).

At the February 2007 hearing, the Arresting Officer, a Coles County Sheriff’s Deputy, testified that he overheard a dispatch from the 9-1-1 dispatch center to the Charleston Police Department. The Arresting Officer testified: "I believe it was that an employee of Crestline Veterinary Clinic believed that the defendant was intoxicated and he left in a green pickup truck with another white male heading eastbound possibly toward Paris, Illinois and the driver, Mr. Ewing, was possibly intoxicated." The Arresting Officer also heard a license plate number and vehicle description. He further testified he overheard a Charleston police officer state that he was going to try to intercept the driver of the vehicle. The Arresting Officer headed eastbound, and waited for the suspect vehicle at Harrison Street and Route 16. Within a matter of seconds, the Arresting Officer observed the suspect vehicle. A Charleston police officer was in a vehicle behind the suspect vehicle. The Arresting Officer did not observe any traffic infractions committed by Defendant driving the suspect vehicle. The Arresting Officer, however, activated his overheard emergency lights, and pulled onto Route 16 traveling eastbound, ahead of the Charleston police officer. Defendant pulled over.

The Arresting Officer notified dispatch of the location, and approached the vehicle to speak with the Defendant. The Arresting Officer did not conduct any field sobriety
tests. On cross-examination, the Arresting Officer testified that the information he had when he stopped Defendant's vehicle included the license plate number, the registered owner, the type of vehicle, the direction and the place the vehicle was traveling, and that the call was made by an employee of Crestline. The Arresting Officer knew Crestline was a veterinary clinic located between Charleston and Mattoon.

The Charleston police officer testified that he heard a dispatch to another officer, Officer Craig, that two intoxicated individuals had left Crestline and were proceeding eastbound on Route 16 in a green Chevrolet pickup truck with license plate 2377GJ. The dispatch originated from the multi-jurisdictional central dispatch service located near the airport. The Charleston police officer asked the dispatcher whether an employee of Crestline had made the phone call. The dispatcher informed him that, "'Yes, indeed, an employee had called.” Based on that dispatch, he located the vehicle at the intersection of Lincoln Avenue and First Street heading eastbound. The Charleston police officer radioed the location to dispatch. He was able to get into a position to observe the vehicle closely at the intersection of Lincoln Avenue and Hawthorn, and confirmed that it was the suspect vehicle. He did not observe the driver of the vehicle commit any traffic infractions.

The Charleston police officer further testified that the Sheriff’s Deputy stopped and approached Defendant's vehicle. Defendant, the driver, made a statement that he "could not do any field sobriety testing at the scene." On cross-examination, the Charleston police officer testified he encountered a lot of traffic on Lincoln Avenue and had difficulty catching up to the suspect vehicle because of the traffic.

The State called an employee of the Coles County 9-1-1 dispatch service. The employee testified that after receiving the call, he "disseminated that to our Charleston officers with the Charleston radio frequency." The employee testified that he advised the officers that he had received the telephone call from an employee of Crestline. The State sought to admit the audiotape of the 9-1-1 call and resulting dispatch. Defendant objected, arguing that the only relevant evidence was what the officers said was the basis of their stop. The State argued the tape was relevant to the question of the caller's reliability, and also argued that information known to the dispatcher could be imputed to the officers. The trial court overruled the objection, subject to reconsideration after hearing the tape.

The tape was not transcribed but was included in the record on appeal. The tape recording produced a female voice stating she was calling to report a drunk driver. The caller stated the driver, who was in a green Chevy 4x4 with license plates 2377GJ, was "going to be on Route 16" heading east. The caller then stated, "They are drunk!" The caller indicated "they just [sic] actually just left here." The 9-1-1 operator asked for the caller's identity. The caller gave her name as Melissa from Crestline. Melissa again stated, "They are drunk!" and that “They did not need to be driving”. The dispatch employee asked Melissa whether or not she knew the persons' identities. Melissa stated the driver was James Ewing and that "they" lived in Paris or around that area. Melissa then stated that they were getting ready to turn onto Route 16, and repeated that they did not need to be driving. Melissa also repeated the car identification information.

The tape also contained the dispatch of the information. The dispatcher reported he had just received a report of a possible "10-55" from Crestline. He stated that the
subject came in to leave an animal there, and "they were extremely intoxicated." The dispatcher stated the two male subjects were just leaving Crestline, heading eastbound on Route 16, in a green Chevrolet pickup. The dispatcher reported that the men resided in Paris, and would probably travel through Charleston.

After hearing the arguments of counsel, the trial court took the matter under advisement. The court later found that the facts and evidence to be analogous to the facts and evidence in Village of Mundelein v. Minx, 352 Ill.App.3d 216, 815 N.E.2d 965 (2004). The trial court noted that the citizen-informant in the matter at bar had an indicia of reliability because she identified herself and provided some details about the Defendant’s vehicle. The trial court reasoned that the information provided by the citizen-informant was not, however, specific enough to justify an investigatory stop, and the arresting officers did not witness any behavior by the Defendant to corroborate the information provided by the citizen-informant. The trial court found, based upon the totality of the circumstances, that the arresting officers lacked reasonable suspicion to believe that the Defendant had committed a crime. Accordingly, the trial court granted Defendant’s Motion to Suppress Evidence and Motion to Rescind Statutory Summary Suspension.

The State appealed. The State argued that the police lawfully stopped Defendant because the 9-1-1 call gave the police reasonable suspicion to believe that Defendant was driving under the influence. The State argued that the Appellate Court should reverse the trial court's Order granting the Motion to Suppress Evidence and the Petition to Rescind the Statutory Summary Suspension. The State argued that the Appellate Court should reverse the trial court's factual determinations only if they were against the manifest weight of the evidence, but should review the ultimate legal questions of whether reasonable suspicion existed and whether the evidence should have been suppressed de novo.

Writing the opinion for the Fourth District, Justice Myerscough analyzed and relied on Terry v. Ohio, 392 U.S. 1 (1968), People v. Jackson, 348 Ill.App.3d 719, 810 N.E.2d 542 (2004), Florida v. J.L., 529 U.S. 266, 46 L.Ed.2d 254, 20 S.Ct. 1375 (2000), and, in particular, People v. Shafer, 372 Ill. App.3d 1044, 868 N.E.2d 359 (4th Dist. 2007), decided after the current case, to conclude that a Terry stop was proper based upon a report of a drunk driver by a third party.

In Shafer, the Fourth District addressed the issue of a Terry stop based on information
provided by an independent third party. In that case, a Wendy's employee called the police to report an intoxicated person causing a disturbance in the restaurant's drive-thru. A police officer responded to the location and observed a car leaving the Wendy's parking lot as he arrived. The police officer stopped the car shortly after the car departed the parking lot. The police officer did not observe any traffic violations before stopping the car. After stopping the vehicle, the officer had a difficult time understanding the defendant, and noticed a strong smell of alcohol on the defendant's breath. The officer arrested defendant for driving under the influence. In that case, the trial court denied the defendant's petition to rescind his statutory suspension, and the Fourth District affirmed. The Appellate Court found that the telephone tip was reliable and provided the police officer with the requisite quantum of suspicion to justify the stop. Shafer, 372 Ill. App. 3d at 1054-55, 868 N.E.2d at 367. Specifically, the Appellate Court concluded that "informant's tips regarding possible incidents of drunk driving require less rigorous corroboration than tips concerning matters presenting less imminent danger to the public." Shafer, 372 Ill.App.3d at 1053, 868 N.E.2d at 366. The Appellate Court noted that the call from a Wendy's employee was not an "anonymous" tip, and "[A]n emergency call to police should not be viewed as an 'anonymous' tip or [be viewed] with the skepticism applied to tips provided by confidential informants." Shafer, 372 Ill.App. 3d at 1054, 868 N.E.2d at 367.

The Shafer court relied on a decision from the Supreme Court of New Hampshire in State v. Sousa, 151 N.H. 297, 303-04, 855 A.2d 1284, 1290 (2004) to outline the factors for evaluating whether an anonymous tip gives rise to reasonable suspicion: 1) Whether there is a "sufficient quantity of information" such as the vehicle's make, model, license plate number, location and bearing, and "similar innocent details" so that the officer may be certain that the vehicle stopped is the one the tipster identified; 2) the time interval between the police receiving the tip and the police locating the suspect vehicle; 3) whether the tip is based upon contemporaneous eyewitness observations; and, 4) whether the tip is sufficiently detailed to permit the reasonable inference that the tipster has actually witnessed an ongoing motor vehicle offense. Shafer, 372 Ill.App.3d at 1050, 868 N.E.2d at 363, quoting Sousa, 151 N.H. at 303-04, 855 A.2d at 1290.

After reviewing these factors, the Shafer court determined that the tip (in addition to not being "anonymous") was also reliable. Shafer, 372 Ill.App.3d at 1054, 868 N.E.2d at 367. The Shafer court rejected the defendant's claim that the police officer acted solely upon conclusory and uncorroborated opinions.

Justice Myerscough concluded that the Terry stop in the matter at bar was proper, disagreeing with the trial court’s reasoning that that the tip lacked sufficient detail.
The Appellate Court first addressed whether to consider only the information conveyed to the police officers or whether additional information given to the 9-1-1 dispatcher, but not conveyed to the officers, can be imputed to the police officers.

The Appellate Court noted that under the "collective- or imputed-knowledge" doctrine, information known to all of the police officers acting in concert can be examined when determining whether the officer initiating the stop had reasonable suspicion to justify a Terry stop. People v. Fenner, 191 Ill.App.3d 801, 548 N.E.2d 147 1989). The Court also noted that Illinois courts have yet to address whether information known to a civilian 9-1-1 dispatcher may be imputed to the police officers. The Court cited several cases in which federal circuits have extended the collective-knowledge doctrine to situations involving a dispatch by a civilian 9-1-1 operator as opposed to another police officer: United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003); United States v. Kaplansky, 42 F.3d 320, 327 (6th Cir. 1994); and United States v. Cutchin, 956 F.2d 1216, 1217-18 (D.C. Cir. 1992). The Appellate Court noted that the Second Circuit, however, has disagreed, finding that whether the knowledge may be imputed depends upon whether the 9-1-1 operator had sufficient training to assess the information in terms of reasonable suspicion. United States v. Colon, 250 F.3d 130, 138 (2d Cir. 2001).

The Appellate Court concluded that the cases that hold the imputed-knowledge doctrine includes information contained in calls to 9-1-1 operators are more persuasive than those holding to the contrary. Even if the Appellate Court was not so persuaded, the Court concluded that the information communicated to the police officers in the matter at bar provided them with sufficient information to form reasonable suspicion to justify the Terry stop.

The Appellate Court first noted that the caller was not anonymous, as she gave her name and from where she was calling. The Court further reasoned that calls made to a police emergency number are considered more reliable than other calls because the police have enough information to identify the caller even if the caller does not give his or her name. Shafer, 372 Ill.App.3d at 1050, 868 N.E.2d at 363-65. Applying the four factors set forth in Shafer, the Appellate Court provided the following analysis: 1) The caller provided sufficient details about the car, including the make, model, color, and license plate, and the fact that the vehicle was traveling eastbound on Route 16 with two male occupants. In addition, the civilian dispatcher reported to the officers that the vehicle was occupied by two males, which gave the officers a sufficient basis to believe they were pulling over the car the caller reported; 2) the time interval between the call and when the officers located defendant's vehicle was short. The civilian dispatcher testified the call came in at approximately 12:45 p.m. The ticket issued by the arresting officer reflected the time 12:56 p.m. The arresting officer testified that after hearing the dispatch, he got in his squad car, headed east, waited for the vehicle at Harrison and Route 16, and saw the vehicle within a matter of seconds; 3) the tip was based on contemporaneous eyewitness observations. The civilian dispatcher told the officers that an employee of Crestline made the report, and that the Defendant was just leaving Crestline. The caller telephoned 9-1-1 as she observed the incident; and 4) the tip was sufficiently detailed to permit a reasonable inference that the tipster actually witnessed what she described. The Court stated that a reasonable inference could be drawn that the caller, as an employee of Crestline, would have had ample opportunity to observe Defendant as he left, that the caller would have been in a position to observe defendant's speech, odor, and gait.

The Appellate Court found that People v. Minx, 352 Ill.App.3d 216, 287 Ill.Dec. 321 (2nd Dist. 2004) both distinguishable from Shafer and the instant case, and in error. The Appellate Court held that because the tip was reliable and provided the officers with the requisite quantum of suspicion to justify the Terry stop, the trial court erred by granting Defendant's Motion to Suppress Evidence and Petition to Rescind the Statutory Summary Suspension.

The Appellate Court reversed the trial court's orders granting the Motion to Suppress Evidence and the Petition to Rescind the Statutory Summary Suspension, and remanded the case for further proceedings.


David B. Franks
Lake in the Hills, IL
 

Experience counts.  Results matter.

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