THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH L. BRODACK, Defendant-Appellant.
Second District No. 2-97-0291
Second District
Opinion filed April 24, 1998.
296 Ill. App. 3d 71
Thus, until the supreme court holds otherwise, I will continue to follow the views expressed in Rice (291 Ill. App. 3d 9). As was the case in Rice, at the time of the defendant‘s guilty plea in this case, Evans had not yet been decided, and therefore neither the trial court nor the defendant in this case had the benefit of Evans’ clarification of the law regarding the procedural requirements related to challenges to sentences imposed following negotiated pleas. Therefore, I would reverse and remand this cause to permit the defendant to file a motion to withdraw his guilty plea. See Rice, 291 Ill. App. 3d 9. I would not reach the issue of whether an extended-term sentence was properly imposed in this case.
Michael S. Grant, of Michael S. Grant, Ltd., of Fox Lake, for appellant.
Michael J. Waller, State‘s Attorney, of Waukegan (Martin P. Moltz, of
JUSTICE THOMAS delivered the opinion of the court:
The defendant, Kenneth L. Brodack, was charged with driving under the influence of alcohol (DUI) (
Village of Round Lake Beach police officer Dave Dowdle testified that on July 24, 1996, at 7:38 p.m., he was on routine patrol in a marked squad car when he received a radio dispatch that a citizen had reported on his cell phone that there was a brown Cadillac heading south on Route 83 from the Lake Villa area that was “all over the road.” The dispatch also communicated a partial license plate for the vehicle. About 7:40 p.m. that same evening, Officer Dowdle observed a brown Cadillac driven by the defendant stopped in the eastbound lane at the intersection of Route 83 and Rollins Road. The vehicle‘s license plate number matched the partial license plate number given by the radio communication.
According to Officer Rollins, he eventually came up behind the defendant‘s vehicle. When the light turned green, the officer followed the defendant for 400 to 500 feet. At that point the officer activated his mars lights and siren, but the defendant did not pull to the right. After traveling about 600 feet farther, the defendant pulled into a left-turn lane. He then turned left into a Jewel parking lot. As he did so, an oncoming vehicle was forced to brake abruptly to avoid striking the defendant‘s vehicle. The officer denied that he had motioned to the defendant to turn left. Officer Dowdle then followed the defendant‘s vehicle for another 100 yards into the parking lot before the defendant eventually stopped.
Officer Dowdle further testified that once the defendant‘s vehicle was stopped he observed the defendant exit the car and almost fall over. The defendant bumped up against the car and used it for support. The officer smelled a strong odor of alcohol on the defendant‘s breath. Dowdle noted that the defendant failed all three field sobriety tests that were administered.
On appeal, the defendant first argues that the trial court erred in denying his motion to suppress evidence and his petition to rescind the statutory summary suspension of his driving privileges. He maintains that Officer Dowdle lacked probable cause to effect a traffic stop.
We initially note that the correct standard to be applied in ascertaining whether an investigative stop is justified is not probable cause to arrest or search but, rather, the less exacting standard of whether the officer has an articulable suspicion that the vehicle or an occupant is subject to seizure for violation of a law. Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401 (1979); People v. Gerwick, 235 Ill. App. 3d 691, 695 (1992); People v. Faletti, 215 Ill. App. 3d 61, 63 (1991). An officer‘s decision to make a valid investigatory stop must be based on specific and articulable facts which, when combined with rational inferences from those facts, reasonably warrant an investigative intrusion; a mere hunch is insufficient. City of Lake Forest v. Dugan, 206 Ill. App. 3d 552, 555 (1990). An observation of erratic driving is sufficient to justify a traffic stop. People v. Diaz, 247 Ill. App. 3d 625, 627 (1993). While reasonable grounds for an investigative stop may be based on an informant‘s tip, some indicia of reliability must be present to justify a stop. Diaz, 247 Ill. App. 3d at 627; Dugan, 206 Ill. App. 3d at 555; Village of Gurnee v. Gross, 174 Ill. App. 3d 66, 69-70 (1988). However, the officer‘s own observations may corroborate the tip or may provide an independent basis for the stop. Diaz, 247 Ill. App. 3d at 627.
A summary suspension rescission hearing is a civil proceeding in which the motorist bears the burden of proof to establish a prima facie case for rescission. People v. Orth, 124 Ill. 2d 326, 337-38 (1988). The trial court‘s determination in a rescission proceeding will be overturned only if the finding is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341. Furthermore, a trial court‘s determination regarding a motion to suppress will not be overturned unless it is determined to be manifestly erroneous. Faletti, 215 Ill. App. 3d at 64. This court will not disturb the trial court‘s determination‘s regarding the credibility of the witnesses or the weight to be given their testimony. People v. Strickland, 154 Ill. 2d 489, 521 (1992).
The present issue is controlled by Gross. There, the arresting
The defendant claims that he was “stopped” the moment the officer activated his lights. However, we disagree with that conclusion. In order to determine whether a particular encounter constitutes a seizure or a stop for fourth amendment purposes, a court must consider all the surrounding circumstances of the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer‘s requests or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 402, 111 S. Ct. 2382, 2389 (1991). Moreover, not every instance of a police “show of authority” constitutes a seizure. California v. Hodari D., 499 U.S. 621, 626, 113 L. Ed. 2d 690, 697, 111 S. Ct. 1547, 1550 (1991). A seizure requires physical force or, where that is absent, submission to the assertion of authority. Hodari D., 499 U.S. at 626, 113 L. Ed. 2d at 697, 111 S. Ct. at 1551. In other words, absent physical force, a police show of authority in activating lights and siren does not amount to a stop until the defendant submits to the show of authority. In the present case, a stop could not have occurred until the defendant actually submitted to the police show of authority by pulling over and stopping his vehicle. Thus, a “stop” did not occur until the defendant actually submitted to the police officer‘s authority by stopping in the Jewel parking lot.
Additionally, we note that when a squad car activates its lights
The defendant next argues that the trial court erred in refusing to declare a mistrial when the arresting officer testified that “[the defendant] told me he had been through this before.” The defendant contends that this testimony was a violation of the trial court‘s order granting the defendant‘s motion in limine, which precluded the State from introducing any evidence of the defendant‘s prior DUI offenses.
It is well settled that evidence of other crimes is not admissible to show propensity to commit crimes. People v. Carroll, 257 Ill. App. 3d 663, 667 (1993). However, such evidence is admissible for any other relevant purpose such as to show the circumstances of the arrest. People v. McKibbins, 96 Ill. 2d 176, 182-83 (1983). Moreover, the erroneous introduction of evidence of a defendant‘s prior criminal conduct does not, per se, require reversal. People v. Bailey, 88 Ill. App. 3d 416, 422 (1980). Such evidence is deemed harmless where the evidence of the defendant‘s guilt is overwhelming. Bailey, 88 Ill. App. 3d at 422. The decision of whether to grant a mistrial is within the sound discretion of the trial court, and its decision will not be reversed absent a showing that the defendant suffered prejudice. People v. McKinney, 193 Ill. App. 3d 1012, 1017 (1990).
Here, the complained-of statement was made in response to a question calling for an explanation of the defendant‘s refusal to take a chemical breath test. The trial judge sustained defense counsel‘s objection to the comment and admonished the jury to disregard it. Assuming arguendo that the statement was erroneous, we find that the defendant did not suffer any prejudice as a result of the comment. Furthermore, the comment was harmless in view of the overwhelming evidence of the defendant‘s guilt. In that regard, we note that the defendant traveled approximately 1,000 feet before he stopped while being followed by the officer. When he exited the vehicle, he nearly fell and had to use his vehicle for support. He then proceeded to fail three field sobriety tests. The arresting officer noted that the defendant had a strong odor of alcohol and his eyes were red and glassy. Additionally, the defendant admitted that he had been
Lastly, the defendant contends that the State failed to prove him guilty beyond a reasonable doubt.
Upon judicial review, the relevant question is whether, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). A reviewing court should not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. People v. Stremmel, 258 Ill. App. 3d 93, 107 (1994).
Here, we find that a rational trier of fact could have found the defendant guilty of DUI beyond a reasonable doubt. As we previously stated, Officer Dowdle‘s observation of the defendant‘s conduct upon exiting his vehicle and the defendant‘s failure of three field sobriety tests supported the jury‘s finding that the defendant was guilty beyond a reasonable doubt of DUI.
For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.
Affirmed.
HUTCHINSON, J., concurs.
JUSTICE COLWELL, dissenting:
I respectfully dissent. After considering the totality of the circumstances, I believe Officer Dowdle lacked sufficient facts, at the time of the stop, to justify an investigatory stop. Thus, the trial court‘s denial of the motion to suppress was manifestly erroneous, and I would reverse and remand for a new hearing on defendant‘s petition to rescind the statutory summary suspension.
My inquiry begins with a determination as to when Officer Dowdle stopped defendant. Without a stop, there is no seizure, and absent a seizure, the fourth amendment is not implicated. People v. Taggart, 233 Ill. App. 3d 530, 547 (1992). A seizure occurs when a police officer, by means of physical force or a show of authority, has in some way restrained the liberty of a citizen. United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980) (opinion of Stewart and Rehnquist, JJ.). The test for determining when a police officer has seized a citizen is whether, in view of all the surrounding circumstances, a reasonable person would have believed he or she was not free to leave. Florida v. Royer, 460 U.S. 491, 501-02, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326 (1983).
The majority relies on California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), but the facts in that case are distinguishable. In Hodari, the defendant ran down an alley when he noticed a police officer‘s unmarked car round a corner. An officer, on foot, chased and caught the defendant. That case did not involve the activation of a police light or siren, nor did it involve the stop of a vehicle in traffic. Thus, Hodari provides no support for the majority‘s position.
The next question is whether the stop was reasonable. The majority admits that, without the fact that defendant continued to travel after Officer Dowdle activated his car‘s lights and siren, Officer Dowdle‘s observations provided insufficient corroboration of the anonymous informant‘s tip. The court in People v. Messamore, 245 Ill. App. 3d 627 (1993), however, rejected the consideration of any facts occurring after the officer activated his squad car‘s lights. In Messamore, after receiving an anonymous informant‘s call, the police followed a vehicle for four to six blocks without incident before activating their squad car‘s lights. The defendant drove about one-eighth to one-fourth of a mile before stopping in a parking lot. Messamore, 245 Ill. App. 3d at 628-29.
Additionally, when considering the totality of the circumstances, the facts do not support a stop. For example, the anonymous informant did not identify the location on Route 83 where he observed the brown Cadillac heading south from the Lake Villa area. The suspect may have been too far north on Route 83 to travel south and reach the intersection with Rollins Road in the two minutes it took Officer Dowdle to locate defendant after receiving the radio dispatch.
Similarly, the informant indicated that the suspect was traveling south on Route 83, but Officer Dowdle first observed defendant in the eastbound lane of Rollins Road waiting for the traffic light at the intersection with Route 83. Thus, in two minutes, defendant would have had to travel south from an unidentified location on Route 83, turn right on Rollins Road, and turn around across two lanes of westbound traffic to reach the location where Officer Dowdle first observed him.
In addition, defendant denied being on Route 83 that evening, and his testimony was uncontradicted. Moreover, defendant‘s explanation regarding his presence at the intersection was plausible. Defendant testified that, since his wife was going to be home late, he was traveling from his house to a Mexican take-out restaurant in Rollins Plaza, east of the intersection of Route 83 and Rollins Road. Defendant explained that he lived seven houses north of Rollins Road and west of the intersection. Thus, he turned left on Rollins Road and was eastbound when he was pulled over. Officer Dowdle also testified that defendant was ultimately traveling to a Mexican restaurant.
Moreover, Officer Dowdle followed defendant for 400 to 500 feet before activating his car‘s lights and siren. Officer Dowdle, however, admitted that he did not observe any erratic driving.
Furthermore, Officer Dowdle testified that, to the best of his recollection, the anonymous informant provided a partial license plate number. Officer Dowdle‘s report, however, did not include the partial license plate number.
In addition to these factual weaknesses, the majority‘s reliance on Village of Gurnee v. Gross, 174 Ill. App. 3d 66 (1988), is misplaced.
The facts in this case are also in contrast with the facts in People v. Diaz, 247 Ill. App. 3d 625 (1993). In Diaz, the informant‘s tip contained information similar to the information provided the police in this matter, but the Diaz court relied solely on the officer‘s own observations of the defendant‘s erratic driving to justify the stop. Diaz, 247 Ill. App. 3d at 627. In this case, Officer Dowdle did not observe any erratic driving.
On the other hand, the facts in this case are similar to the facts in City of Lake Forest v. Dugan, 206 Ill. App. 3d 552 (1990). In Dugan, this court affirmed the trial court‘s order granting the defendant‘s motion to suppress. The informant in Dugan provided the police with a more detailed tip than the tip in this case, but, like this case, there was no evidence the officer observed any bad driving. Dugan, 206 Ill. App. 3d at 555.