                                                                          Digitally signed by
                       Illinois Official Reports                          Reporter of Decisions
                                                                          Reason: I attest to the
                                                                          accuracy and integrity
                                                                          of this document
                               Appellate Court                            Date: 2016.10.11
                                                                          13:39:55 -05'00'




                  People v. Lubienski, 2016 IL App (3d) 150813



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MARK P. LUBIENSKI, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0813



Filed             September 1, 2016



Decision Under    Appeal from the Circuit Court of Will County, No. 15-DT-105; the
Review            Hon. Daniel L. Kennedy, Judge, presiding.



Judgment          Affirmed.



Counsel on        Thomas Moore, of Palos Hills, for appellant.
Appeal
                  James Glasgow, State’s Attorney, of Joliet (Mark A. Austill, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE LYTTON delivered the judgment of the court, with opinion.
                  Presiding Justice O’Brien concurred in the judgment and opinion.
                  Justice Schmidt specially concurred, with opinion.
                                             OPINION

¶1       Defendant, Mark P. Lubienski, appeals from his conviction for driving under the influence
     of alcohol (DUI), arguing that his counsel was ineffective for failing to file a motion to quash
     arrest and suppress evidence. We affirm.

¶2                                              FACTS
¶3       Defendant was charged with DUI (625 ILCS 5/11-501(a)(2) (West 2012)). No motion to
     quash arrest or suppress evidence was filed. A bench trial was held on defendant’s DUI charge.
     Officer Lawrence Drish testified that he had been a police officer for seven years and was
     trained to detect when someone was under the influence of alcohol, which included the
     standard field sobriety tests. While on duty at approximately 1:08 a.m. on November 16, 2013,
     he noticed a white truck driven by defendant. He observed the truck’s passenger tires briefly
     cross the white fog line and touch the gravel shoulder when turning right. Drish followed the
     truck for a while to see if it made any other traffic violations and to arrive at a safe area to
     effectuate a traffic stop. Defendant committed no further traffic violations. At that time, the
     video equipment in Drish’s squad car was on and working properly. The video recording was
     played in court.
¶4       Drish pulled defendant over and noticed that defendant had “bloodshot glassy eyes,” his
     speech was slurred, and a strong odor of alcohol was coming from inside the truck. Drish had
     defendant perform field sobriety tests and subsequently arrested defendant for DUI.
¶5       Upon the conclusion of the evidence, the court found defendant guilty of DUI. Defendant
     was sentenced to 12 months’ court supervision.

¶6                                            ANALYSIS
¶7       On appeal, defendant argues that he was denied the effective assistance of counsel when
     his attorney failed to file a motion to quash arrest and suppress evidence. Specifically,
     defendant argues that the motion would have been granted because Drish’s investigatory stop
     was not supported by a reasonable, articulable suspicion that a traffic violation occurred.
     Defendant’s argument does not implicate the validity of his arrest. Instead, it revolves solely
     around the validity of the investigatory stop. Ultimately, defendant’s argument fails, as Drish’s
     decision to stop defendant’s truck was reasonable in light of the fact that defendant crossed the
     fog line in violation of section 11-709(a) of the Illinois Vehicle Code (Code) (625 ILCS
     5/11-709(a) (West 2012)).
¶8       To prevail on a claim that trial counsel is ineffective for failing to file a motion to quash
     arrest and suppress evidence, defendant must show a reasonable probability that the motion
     would have been granted and that the outcome of the trial would have been different if the
     evidence had been suppressed. People v. Colon, 225 Ill. 2d 125, 135 (2007); People v.
     Patterson, 217 Ill. 2d 407, 438 (2005).
¶9       Defendant acknowledges that the seminal case applicable here is People v. Hackett, which
     examined the distinction between reasonable, articulable suspicion and probable cause with
     regard to section 11-709(a) of the Code. People v. Hackett, 2012 IL 111781; 625 ILCS
     5/11-709(a) (West 2012). Under Hackett an officer may conduct a brief investigative stop of a
     vehicle where he has a reasonable, articulable suspicion to justify such a stop. Hackett, 2012 IL

                                                 -2-
       111781, ¶ 20. An investigatory stop is proper where a police officer observes a vehicle deviate
       from his lane, as “[a]n investigatory stop in this situation allows the officer to inquire further
       into the reason for the lane deviation, either by inquiry of the driver or verification of the
       condition of the roadway where the deviation occurred.” Id. ¶ 28; see also 625 ILCS
       5/11-709(a) (West 2012) (“A vehicle shall be driven as nearly as practicable entirely within a
       single lane ***.”). The investigatory stop does not need to be supported by probable cause.
       Hackett, 2012 IL 111781, ¶ 28.
¶ 10        Here, Drish observed defendant’s vehicle cross over the fog line and touch the gravel
       shoulder while making a right-hand turn. Pursuant to section 11-709(a) of the Code (625 ILCS
       5/11-709(a) (West 2012)), Drish had a reasonable, articulable suspicion that defendant had
       committed a traffic violation, and thus it was proper for him to effectuate an investigatory stop
       of defendant’s vehicle. Hackett, 2012 IL 111781, ¶ 20. The fact that defendant did not commit
       any subsequent violations is irrelevant, as Drish had a reasonable, articulable suspicion for the
       stop immediately upon defendant’s crossing of the fog line. Accordingly, defendant’s
       ineffective assistance argument fails, as defendant is unable to show a reasonable probability
       that a motion to quash arrest and suppress evidence would have been granted. See Colon, 225
       Ill. 2d at 135.
¶ 11        In coming to this conclusion, we reject the following arguments tendered by defendant.
       First, defendant argues that crossing the fog line and touching the shoulder was justified under
       section 11-801(a)(1) of the Code, which states, “[b]oth the approach for a right turn and a right
       turn shall be made as close as practical to the right-hand curb or edge of the roadway.” 625
       ILCS 5/11-801(a)(1) (West 2012). Defendant, however, did not make the right turn “as close
       as practical to the right-hand curb.” See id. Instead, there was a reasonable, articulable
       suspicion that defendant violated section 11-709(a) of the Code (625 ILCS 5/11-709(a) (West
       2012)) by crossing the fog line. Section 11-801(a)(1) of the Code does not excuse such a
       deviation. We interpret section 11-801(a)(1) together with section 11-709(a) as meaning that
       defendant had to make the right turn as close as practical to the edge of the road while
       remaining within the lane. See 625 ILCS 5/11-709(a), 11-801(a)(1) (West 2012).
¶ 12        Second, defendant attempts to distinguish Hackett, stating that Hackett dealt with two
       deviations over the center line, which defendant did not do here. We believe that two
       deviations over the center line as opposed to one deviation over the fog line is a distinction
       without significance. Both Hackett and the instant case involve a defendant that deviated from
       his lane, thereby vesting the officer with grounds to effectuate an investigatory stop.
¶ 13        Lastly, we find defendant’s reliance on People v. Bozarth, 2015 IL App (5th) 130147,
       misplaced. In Bozarth, the defendant was being followed by an unmarked police car and pulled
       off the road into a private driveway, parked behind a barn, and turned off the car’s lights.
       Id. ¶ 4. The officer approached the car because he thought the defendant’s actions were
       suspicious. Id. ¶¶ 6-7. He did not observe the defendant committing any violations. Id. The
       defendant was ultimately convicted of DUI, but the appellate court reversed, as the officer did
       not have reasonable, articulable suspicion that the defendant had committed or was about to
       commit a crime that would justify the stop. Id. ¶ 19. Here, unlike Bozarth, Drish observed
       defendant deviate from his lane, which provided a reasonable, articulable suspicion.
¶ 14        For purposes of clarity, we note it is unnecessary for us to determine whether or not Drish
       had probable cause to believe that defendant violated section 11-709(a). The Hackett court
       expressly stated:

                                                   -3-
               “ ‘ “As a general matter, the decision to stop an automobile is reasonable where the
               police have probable cause to believe that a traffic violation has occurred.” ’ [Citation.]
               However, as this court has observed, though traffic stops are frequently supported by
               ‘probable cause’ to believe that a traffic violation has occurred, as differentiated from
               the ‘less exacting’ standard of ‘reasonable, articulable suspicion’ that justifies an
               ‘investigative stop,’ the latter will suffice for purposes of the fourth amendment
               irrespective of whether the stop is supported by probable cause.” Hackett, 2012 IL
               111781, ¶ 20 (quoting People v. McDonough, 239 Ill. 2d 260, 267 (2010), quoting
               Whren v. United States, 517 U.S. 806, 810 (1996), and citing People v. Gonzalez, 204
               Ill. 2d 220, 227-28 (2003)).
¶ 15       The Hackett court further explained that “in order to establish probable cause that a
       violation of section 11-709(a) has occurred, the officer must point to facts which support a
       reasonable belief that defendant has deviated from his established lane of travel and that it was
       ‘practicable’ for him to have remained constant in his proper lane.” (Emphasis in original.)
       Hackett, 2012 IL 111781, ¶ 27. Probable cause would thus require “affirmative testimony that
       defendant deviated from his proper lane of travel and that no road conditions necessitated the
       movement.” (Emphases in original.) Id. ¶ 28. However, an officer would have reasonable,
       articulable suspicion for an investigatory stop “without first ‘considering whether the
       circumstances he or she observed would satisfy each element of a particular offense.’ ” Id.
       (quoting People v. Close, 238 Ill. 2d 497, 510 (2010)). Our supreme court has also discussed
       the relevance of the reasonable articulable suspicion standard in traffic cases on People v.
       Gaytan, 2013 IL App (4th) 120217. See also People v. Tramble, 2012 IL App (3d) 110867;
       City of East Peoria v. Palmer, 2012 IL App (3d) 110904; People v. Hansen, 2012 IL App (4th)
       110603; People v. Hernandez, 2012 IL App (2d) 110266.
¶ 16       Here, Drish had a reasonable, articulable suspicion to conduct an investigatory stop when
       defendant crossed over the fog line, thus deviating from his established lane. Supra ¶ 10.
       Again, the sole question before us on appeal is whether the investigatory stop conducted by
       Drish violated the fourth amendment. In answering this question, it is not necessary for us to
       determine whether Drish reasonably believed it was “practicable” for defendant to have
       remained in his lane. The answer to that particular question would only be implicated when
       determining whether Drish had probable cause to cite defendant for a violation of section
       11-709(a). That particular question is not before us on appeal. Moreover, we note that the
       record is devoid of any “affirmative testimony” indicating whether or not it was practicable for
       defendant to have remained in his lane.1 Hackett, 2012 IL 111781, ¶ 28. Accordingly, it is not
       only legally unnecessary to address the question of probable cause, it is also factually
       impossible.

¶ 17                                       CONCLUSION
¶ 18      The judgment of the circuit court of Will County is affirmed.

¶ 19      Affirmed.



          1
           Neither defendant nor Drish testified to this fact.

                                                      -4-
¶ 20   JUSTICE SCHMIDT, specially concurring.
¶ 21   I concur only in the judgment.




                                        -5-
