395 Ill.App.3d 194, 334 Ill.Dec.764
(4th Dist. 2009)

(As appearing in the Illinois State Bar Association
Traffic Laws and Courts Newsletter, March 10, 2010, Vol. 19, No. 3)

Absent police misconduct, the exclusionary rule does not apply. In this Driving Under the Influence of Alcohol (DUI) case, the trial Court granted Defendant's motion to suppress evidence on the ground that the State Trooper had improperly seized Defendant. Because the State Trooper did not engage in any police misconduct, the 4^th District Appellate Court reversed the Trial Court, ruling that the exclusionary rule did not apply to this case.

I. FACTS

On October 12, 2008 an Illinois State Police Trooper, while on routine patrol, noticed a car stopped on the narrow shoulder of a busy highway. The Trooper decided to inquire whether the driver needed assistance. The Trooper stopped his squad car behind Defendant's car and activated his overhead emergency lights. The Trooper then approached Defendant's car and asked him whether "everything was O.K." The subsequent exchange resulted in Defendant's arrest for DUI (625 ILCS 5/11-501 (a) (2) (West 2008)).

In November 2008, Defendant filed a Motion to Suppress, arguing that because the Trooper did not have a valid reason to approach his car and question him, the trial Court should suppress the evidence the Trooper obtained.

The evidence presented at Defendant's December 2008 hearing on his Motion showed the following. On October 12, 2008, at about 7:30 p.m., the Illinois State Police Trooper was on routine patrol in his marked squad car on State Highway 100 near Grafton, which he described as a busy, four-lane highway with two lanes in each direction separated by a center median. As the Trooper traveled westbound, he noticed a car stopped on the shoulder of the eastbound lanes that had not been there 10 minutes earlier. The car was occupied by a driver and a passenger. Although the Trooper did not notice anything unusual, he decided to inquire whether the occupants needed assistance. The Trooper parked behind the stopped car and turned on his overhead emergency lights for safety reasons because (1) it was dark outside, and (2) "a lot of traffic" was present. The Trooper acknowledged that as he parked behind the stopped car he did not notice anything unusual.

The uniformed Trooper approached the car and asked Defendant, who was the driver, whether "everything was okay." Defendant "cracked" his car window open and answered that he was waiting for a friend. Almost immediately, the Trooper detected the odor of alcohol on Defendant's breath. When the Trooper asked Defendant whether he had recently consumed alcohol, Defendant replied that he had had "three." The Trooper asked Defendant if he would submit to a field sobriety test. Defendant agreed and did so. The Trooper thereafter arrested Defendant for DUI.

Defendant testified that he (1) was waiting on the shoulder of the highway for a friend who had stopped at a gas station; (2) first noticed the squad car when the Trooper activated his overhead emergency lights behind Defendant's car; (3) did not feel that he was free to drive away; (4) felt compelled to answer the Trooper's questions; and, (5) did not think he could refuse to perform the field sobriety tests. Defendant admitted that he refused to perform the last field sobriety test the Trooper attempted to administer because Defendant felt that the Trooper was about to arrest him. The record also showed that (1) Defendant had an open container of alcohol in his vehicle; (2) on the night of Defendant's arrest, the Trooper notified him of the State's intention to suspend his driver's license under section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West 2008)), because Defendant "refused to submit to or failed to complete" a breathalyzer test; and (3) on November 27, 2008 the State suspended Defendant's driver's license.

The trial Court took Defendant's Motion under advisement, and in January 2009, granted the Motion.

The State filed a Motion to Reconsider the trial Court's written Order granting Defendant's Motion to Suppress. In March 2009 the Court denied the State's Motion, finding that once the Trooper activated his overhead emergency lights, a reasonable person would not have felt free to leave, and the Trooper's doing so advanced the encounter to a Terry stop that was unsupported by a reasonable suspicion of criminal activity.

Shortly after the trial Court granted his Motion to Suppress, Defendant filed a petition for hearing under section 2-118.1 of the Vehicle Code (625 ILCS 5/2-118.1 (West 2008)), seeking rescission of the State's Statutory Summary Suspension of his driver's license. The Court later entered a written Order rescinding Defendant's Statutory Summary Suspension based on its January 2009 Order granting Defendant's Motion to Suppress.

The State appealed.

II. ANALYSIS

Writing for the Court, Justice Steigmann reviewed the Court's ruling in a previous case, People v. Garriott, 253 Ill.App. 3d 1048, 625 N.E.2d 780 (4^th Dist.1993), where the Court concluded that in the absence of any police misconduct, the exclusionary rule does not apply. Justice Steigmann noted that the most recent decision of the United States Supreme Court concerning the exclusionary rule reinforced the conclusion in Garriott. In Herring v. United States, 555 U.S. 1, 172 L.Ed.2d 496, 129 S.Ct. 695 (2009), the Supreme Court addressed a situation in which an officer reasonably believed that there was an outstanding arrest warrant for the Defendant, but that belief turned out to be wrong because of a bookkeeping error committed by another police employee. The United States Supreme Court noted the Parties' agreement that the ensuing arrest was a violation of the Fourth Amendment. However, the Parties disputed whether the exclusionary rule should be applied to the contraband found during a search incident to the Defendant's arrest. The United States Supreme Court agreed with the government's position that suppression was not appropriate, noting that its cases "establish[ed] that such suppression is not an automatic consequence of a fourth amendment violation. Instead, the Herring Court reasoned, the question turned on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Herring, 555 U.S. 1, 172 L.Ed.2d at 502, 129 S.Ct. at 698.

The United States Supreme Court further emphasized that "[t]he exclusionary rule was crafted to curb police rather than judicial misconduct" and noted that the extent to which the exclusionary rule is justified varies with the culpability of the law enforcement conduct. The Supreme Court later expanded upon this theme by noting that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring, 555 U.S. 1, 172 L.Ed.2d at 507, 129 S.Ct. at 702.

Justice Steigmann "distilled" the Supreme Court's holding as supportive of the point the 4^th District Appellate Court made in Garriott 16 years ago: absent police misconduct, the exclusionary rule does not apply. Justice Steigmann reasoned that if the justification for the exclusionary rule is solely to deter police misconduct (as the Supreme Court reaffirmed in Herring), then the necessary condition precedent for the exclusionary rule's application is police misconduct. Thus, absent police misconduct, the exclusionary rule does not apply because there is no police misconduct to deter.

Based upon Herring and Garriott, the Appellate Court disagreed with the Trial Court's conclusion that Defendant was improperly detained when the Trooper activated his overhead lights because, the Appellate Court reasoned, the Trooper's activation of his overhead emergency lights did not constitute police misconduct, even if the trial Court were correct that this action constituted a violation of the Fourth Amendment.

The Appellate Court concluded that since no police misconduct occurred, the rule that absent police misconduct, the exclusionary rule does not apply, was dispositive in this case. The Court concluded that "the trooper's activating his emergency lights as he pulled behind a stopped vehicle on a busy four-lane highway not only did not constitute misconduct, it was the entirely prudent and appropriate thing for the trooper to do. Indeed, his failure to do so could very well be viewed as dangerous."

The Appellate Court rejected the trial Court's narrow interpretation and bright line rule regarding a police officer's use of his overhead emergency lights: that whenever a police officer approaches an already stopped vehicle and activates his overhead emergency lights in the absence of reasonable suspicion that criminal activity has or will occur, regardless of the other circumstances that may be present, the officer's action is unlawful and should be deterred by employing the exclusionary rule. The Appellate Court maintained that although police officers often use emergency overhead lights to communicate their intent to engage in an investigatory stop or detention, overhead emergency lights also serve other purposes, such as warning approaching motorists to be careful of the presence of cars located on the shoulder of a busy highway after dark. Relying on FBI studies, the Appellate Court asserted that stopping on or near a highway is one of the most dangerous aspects of police work.

Relying on Herring, the Appellate Court concluded that "nothing about the trooper's activation of his emergency lights represents the "flagrancy of police misconduct" that constitutes an important step in the calculus of applying the exclusionary rule, nor do the Trooper's actions constitute "systemic error or reckless disregard of constitutional requirements", or the "culpability of the police," thereby suggesting "the potential of exclusion to deter wrongful police conduct". The Appellate Court concluded that the Trooper did nothing improper in this case, and therefore, because no police misconduct was present, the exclusionary rule did not apply.

III. RULING

The Appellate Court reversed the trial Court's Order granting Defendant's Motion to Suppress, and remanded for further proceedings. The Appellate Court vacated the Trial Court's Order rescinding Defendant's Statutory Summary Suspension.

Justice Myerscough specially concurred with the majority's decision, asserting that the majority's blending of the two analyses – one constitutional (4^th Amendment) and one judicially created (exclusionary rule), was incorrect.

David B. Franks
Lake in the Hills, IL
 

Experience counts.  Results matter.

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1301 Pyott Road, Suite 200
Lake in the Hills, IL 60156
Phone: 847-854-7700
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