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                              Appellate Court                            Date: 2017.12.06
                                                                         11:23:21 -06'00'




                  People v. Bianca, 2017 IL App (2d) 160608



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           KATHLEEN BIANCA, Defendant-Appellee.



District & No.    Second District
                  Docket No. 2-16-0608



Filed             September 28, 2017



Decision Under    Appeal from the Circuit Court of Kane County, No. 14-DT-655; the
Review            Hon. Robert J. Morrow, Judge, presiding.



Judgment          Affirmed.


Counsel on        Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
Appeal            Delfino, Lawrence M. Bauer, and Ivan O. Taylor, Jr., of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

                  Michael J. Pelletier, Thomas A. Lilien, and Yasemin Eken, of State
                  Appellate Defender’s Office, of Elgin, for appellee.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Justices Birkett and Spence concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant, Kathleen Bianca, was charged with two counts of driving under the influence
     (DUI) (625 ILCS 5/11-501(a)(1), (2) (West 2012)). Defendant filed a motion to suppress
     evidence, claiming that she was unlawfully seized by the police officer. The trial court granted
     defendant’s motion, and the State appeals. We affirm.

¶2                                              I. FACTS
¶3        On June 26, 2014, police officer Gary LaBarbera arrested defendant for DUI, following a
     field sobriety test. Defendant filed a motion to suppress, arguing that LaBarbera unlawfully
     seized her.
¶4        At the hearing, the following testimony was elicited. LaBarbera testified that he was
     performing a traffic stop when a citizen drove by and reported seeing a car driving “recklessly
     and all over the road” and that she had seen the vehicle park behind K&L Liquors. The citizen
     described the vehicle as a black SUV with a manufacturer’s marking that looked like an
     “upside-down V.” The citizen did not give LaBarbera a description of the license plate or the
     car’s exact make or model and could not describe anything about the driver other than that she
     was a white female with blonde hair. The citizen did not elaborate on what she meant by
     “driving recklessly and all over the road,” and she did not explain how long the driver had done
     so. The citizen then drove off, and LaBarbera did not ask her to wait so he could obtain more
     information.
¶5        LaBarbera relocated his traffic stop to the liquor store, where he observed a car matching
     the description given to him by the informant and then saw defendant leave the store and enter
     the car. LaBarbera left the traffic stop, parking his marked squad car next to defendant’s car.
¶6        Defendant testified that LaBarbera parked his marked squad car behind her car, blocking
     her from leaving, and then got out of his car. He was in full uniform. He came up to her
     window to speak to her. LaBarbera testified that he could not recall “for sure,” but he did not
     think he “even got out of [his] car.” LaBarbera asked defendant to “stay in that spot” so he
     could speak with her after he “cleared” his other traffic stop. He testified that he did not
     “command” defendant to stay but rather “requested” her to do so. Defendant testified that the
     officer asked her to stay. Although the officer asked her to stay, defendant believed she was
     required to stay and would not have left. LaBarbera agreed that defendant “followed his
     instructions” and waited for him to return.
¶7        When LaBarbera returned to defendant’s car, he asked for her driver’s license and proof of
     insurance. Eventually, he had defendant step out of the car to perform field sobriety tests.
     Following the field sobriety tests, LaBarbera arrested defendant. He brought her to the station,
     where she submitted to a Breathalyzer. LaBarbera never observed defendant driving the
     vehicle, but he testified that defendant’s arrest was not based solely on the anonymous tip he
     had received from the citizen.
¶8        The trial court granted defendant’s motion to suppress. The court noted the conflicting
     testimony about whether the officer blocked defendant’s exit by parking behind her car or next
     to it. However, the court stated that it was not “going to find a seizure here based on blockage
     because there was conflict of the testimony and the officer said he never blocked her vehicle.”
     The court concluded that the case was “not a blockage case” but rather an “anonymous


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       informant case,” relying on Village of Mundelein v. Minx, 352 Ill. App. 3d 216 (2004), in
       which this court concluded that the informant’s tip was not sufficiently reliable to provide the
       officer with reasonable suspicion to justify the investigatory stop. Id. at 222.
¶9         The trial court later clarified that a seizure had occurred by stating: “I am finding that there
       is a stop, yes.” Later, at the hearing on the State’s motion to reconsider, the trial court further
       stated that, when defendant stayed after LaBarbera told defendant not to leave and that he was
       working on another case, “[s]he stayed. I think she stayed because a uniformed officer in a
       squad car told her not to leave.” The trial court found that a seizure occurred at that point, as a
       reasonable person in defendant’s situation would not have felt free to leave. The trial court
       further found that the seizure had occurred without any reasonable suspicion that defendant
       had committed an offense, i.e., the informant’s tip was not sufficiently reliable to provide
       LaBarbera with reasonable suspicion for the investigatory stop. The State timely appeals,
       arguing that the trial court erred in granting defendant’s motion to suppress evidence.

¶ 10                                           II. ANALYSIS
¶ 11                                              A. Seizure
¶ 12        In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a two-part
       standard of review. People v. Gherna, 203 Ill. 2d 165, 175 (2003). We must give great
       deference to the trial court’s factual findings and will reverse only if the findings are against
       the manifest weight of the evidence. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). A trial
       court’s factual finding is against the manifest weight of the evidence only if it is unreasonable,
       arbitrary, or not based on the evidence presented, or if the opposite conclusion is clearly
       evident. People v. Deleon, 227 Ill. 2d 322, 332 (2008). However, the trial court’s ultimate legal
       conclusion as to whether suppression is warranted is subject to de novo review. Gherna, 203
       Ill. 2d at 175.
¶ 13        The fourth amendment to the United States Constitution guarantees “[t]he right of the
       people to be secure in their persons, houses, papers, and effects, against unreasonable searches
       and seizures.” U.S. Const., amend. IV. However, not every interaction between citizens and
       police officers results in a seizure. People v. McDonough, 239 Ill. 2d 260, 268 (2010). There
       are three tiers of police-citizen encounters: (1) an arrest of a citizen, which must be supported
       by probable cause; (2) a temporary investigatory seizure conducted pursuant to Terry v. Ohio,
       392 U.S. 1 (1968), where an officer may conduct a brief, investigatory stop of a citizen when
       the officer has a reasonable, articulable suspicion of criminal activity and such suspicion
       amounts to more than a mere “hunch”; and (3) police-citizen encounters that are consensual,
       which involve no coercion or detention and do not implicate any fourth amendment interests.
       McDonough, 239 Ill. 2d at 268.
¶ 14        The State has argued consistently both before the trial court and now on appeal that the
       evidence shows that the encounter between defendant and LaBarbera was consensual because
       the officer merely asked her to remain while he completed the unrelated traffic stop and she
       agreed to that request. The State has never argued that LaBarbera had a reasonable, articulable
       suspicion of criminal activity to perform a lawful Terry stop on defendant. Defendant asserts
       that she was illegally seized twice: the first when LaBarbera asked defendant to stay in her car
       and wait for him to return, and the second when LaBarbera requested defendant’s driver’s
       license and proof of insurance and told her to step out of the car and perform field sobriety
       tests.

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¶ 15       The State is correct that the first encounter between defendant and LaBarbera was
       consensual. Both LaBarbera and defendant testified that LaBarbera asked defendant to stay.
       Therefore, the trial court’s finding that the officer commanded defendant to stay is against the
       manifest weight of the evidence.
¶ 16       In the motion to suppress, defendant did not plead that she was illegally seized a second
       time when LaBarbera directed her to exit the vehicle and perform field sobriety tests. Section
       114-12(b) of the Code of Criminal Procedure of 1963 requires that a motion to suppress “state
       acts showing wherein the search and seizure were unlawful.” 725 ILCS 5/114-12(b) (West
       2012). This rule serves a legitimate state interest. People v. Johnson, 38 Ill. 2d 399, 402 (1967).
       A motion to suppress places the trial court and the State on notice and frames the issue that
       must be decided in a pretrial hearing. But at the hearing on the motion, the defense presented
       evidence of the second encounter and argued that defendant was illegally detained during that
       time. The State never objected that it was beyond the scope of the motion and never requested
       to reopen the proofs to present evidence that LaBarbera had a reasonable, articulable suspicion
       to have defendant exit her car and perform field sobriety tests. By failing to argue this at trial,
       or on appeal, the State has forfeited this argument. See People v. Hyland, 2012 IL App (1st)
       110966, ¶ 29. We are mindful that the trial court’s ruling focused on the first encounter.
       However, as noted above, our review of the trial court’s decision on a motion to suppress is
       de novo. Gherna, 203 Ill. 2d at 175. In conducting de novo review, an appellate court makes its
       own independent assessment of the issues and is free to substitute its own judgment for that of
       the trial court in order to formulate the legally correct answer. People v. Coleman, 183 Ill. 2d
       366, 388 (1998). Using the de novo standard of review, we may affirm a trial court’s decision
       on a motion to suppress on any basis established by the record. People v. Keys, 375 Ill. App. 3d
       459, 461 (2007). Therefore, in this case, there is no impediment to our considering whether the
       evidence supports the conclusion that defendant was illegally seized during the second
       encounter.
¶ 17       As noted, consensual encounters between police and citizens do not implicate the fourth
       amendment. See McDonough, 239 Ill. 2d at 268. An individual is seized for fourth amendment
       purposes “ ‘only when, by means of physical force or a show of authority, his freedom of
       movement is restrained.’ ” People v. Almond, 2015 IL 113817, ¶ 57 (quoting United States v.
       Mendenhall, 446 U.S. 544, 553 (1980)). Such restraint is analyzed under the totality of the
       circumstances and is considered a seizure when a reasonable person would believe he or she
       was not free to leave. Id. There are four Mendenhall factors that indicate a seizure: “(1) the
       threatening presence of several officers; (2) the display of a weapon by an officer; (3) some
       physical touching of the person; or (4) using language or tone of voice compelling the
       individual to comply with the officer’s requests.” Id.
¶ 18       According to the State, both defendant’s and LaBarbera’s testimonies show that, during
       their second interaction, LaBarbera was a single officer who did not display a weapon and did
       not touch defendant, and there was no mention of any compelling language or tone. The State
       argues that the absence of any Mendenhall factor demonstrates a lack of a seizure. The State
       believes that the trial court made an unfounded presumption of a seizure before directing its
       analysis toward reasonable suspicion.
¶ 19       While the State is correct that the absence of any Mendenhall factor is “highly instructive”
       as to whether a seizure occurred (id.), the factors are not exhaustive (see Luedemann, 222 Ill.
       2d at 557). In People v. Walter, 374 Ill. App. 3d 763 (2007), we discussed how a defendant

                                                    -4-
       acceding to an officer’s request may be viewed as consensual. Id. at 766-73. However, there is
       ample authority to support a holding that submission to field sobriety testing is a seizure under
       the fourth amendment. See Village of Lincolnshire v. Kelly, 389 Ill. App. 3d 881, 886 (2009)
       (and cases cited therein). In this case, the evidence shows that defendant’s acceding to the
       officer’s direction was not consensual. Defendant testified that LaBarbera told her to exit the
       car and had her perform field sobriety tests. Also, LaBarbera admitted that, upon his return, he
       asked defendant for her driver’s license and proof of insurance and he had her exit the car for
       field sobriety testing. There is no evidence to support an argument that defendant’s
       performance of the tests was consensual.

¶ 20                                B. Reasonable, Articulable Suspicion
¶ 21       An officer may conduct a Terry stop if the officer has a reasonable, articulable suspicion
       that either the vehicle, or an occupant of the vehicle, is subject to seizure for violation of a law.
       People v. Matous, 381 Ill. App. 3d 918, 922 (2008). As the moving party in a suppression
       hearing, the defendant has the initial burden to prove that her seizure was unlawful, that is, that
       the police lacked a reasonable, articulable suspicion to temporarily detain her. Id. at 923. If the
       defendant makes a prima facie showing that she was doing nothing unusual to justify her
       seizure by the police, the burden of going forward then shifts to the State. Id.
¶ 22       After defendant testified, the trial court shifted the burden to the State, but the State does
       not argue on appeal that this was improper. As previously noted, the State also does not argue
       that LaBarbera had a reasonable, articulable suspicion to direct defendant to perform the field
       sobriety tests. At the point where defendant submitted to the direction to exit the car to perform
       field sobriety tests, there was a seizure unsupported by a reasonable, articulable suspicion.
       Therefore, the trial court did not err in granting the motion to suppress.

¶ 23                                       III. CONCLUSION
¶ 24       For the reasons stated, the judgment of the circuit court of Kane County is affirmed.

¶ 25       Affirmed.




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