Filed 10/20/09             NO. 4-09-0166

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellant,         )    Circuit Court of
          v.                           )    Jersey County
ROBERT G. McDONOUGH,                   )    No. 08DT161
          Defendant-Appellee.          )
                                       )    Honorable
                                       )    Eric S. Pistorius,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          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 involved had

improperly seized defendant.    Because the state trooper did not

engage in any police misconduct, the exclusionary rule does not

apply to this case.   Accordingly, we reverse the trial court's

order suppressing evidence and remand for further proceedings.

                           I. BACKGROUND

                       A. Defendant's Arrest

          On October 12, 2008, Illinois State Police Trooper Greg

Brunnworth, while on routine patrol, noticed a car stopped on the

narrow shoulder of a busy highway.   He decided to inquire whether

the driver (who later turned out to be defendant, Robert G.

McDonough) needed assistance.   The trooper stopped his squad car

behind defendant's car and activated his overhead emergency

lights.   He 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)).

                 B. Defendant's Motion To Suppress

           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 sup-

press the evidence the trooper obtained as a result of doing so.

           The evidence presented at defendant's December 2008

hearing on his motion, which consisted of testimony from the

trooper and defendant, as well as a videotape from the trooper's

squad car that showed his encounter with defendant, showed the

following.

           On October 12, 2008, at about 7:30 p.m., the 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 he traveled westbound, he noticed a car stopped on the shoul-

der of the eastbound lanes that had not been there 10 minutes

earlier.   It 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 emer-

gency lights for safety reasons because (1) it was dark outside

and (2) "a lot of traffic" was present.   (During the hearing, the

court commented that the videotape showed the stopped car was on

the shoulder six to eight inches from the highway, which was the


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maximum amount of space the shoulder would allow.)    The trooper

acknowledged that, as he parked behind the stopped car, he still

did not notice anything unusual.

           The trooper, who was wearing his police uniform,

approached the car and asked defendant, who was the driver,

whether "everything was okay."    Defendant "cracked" his car

window open and responded 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 him 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 acti-

vated 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, at that point, defendant

surmised 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 defen-

dant's arrest, the trooper notified him of the State's intention


                                 - 3 -
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 his driver's licence.

          The trial court took defendant's motion under advise-

ment, and in January 2009, the court entered the following

written order on that motion:

               "In determining whether a community[-]

          caretaking encounter with a police officer

          rises to the level of a Terry stop, the ques-

          tion is whether, under the circumstances, a

          reasonable person would feel free to drive

          away from the officer.    The officer testified

          that after pulling in behind defendant's

          vehicle[,] he activated his overhead lights.

          This court finds that under said

          circumstances[,] a reasonable person would

          not feel free to pull away.

               Defendant's [m]otion to [s]uppress ***

          is hereby granted.    Cause stricken."

See Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88

S. Ct. 1868, 1880 (1968) (police may conduct a limited investiga-

tory stop of an individual where there exists a reasonable

suspicion, based on articulable facts, that the individual is

about to commit a crime).


                                - 4 -
          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.

        C. Defendant's Petition To Rescind the Statutory
           Summary Suspension of His Driver's License

          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.

          This appeal followed.

              II. THE TRIAL COURT'S ORDER GRANTING
                  DEFENDANT'S MOTION TO SUPPRESS

                    A. The Standard of Review

          "'In determining whether a trial court has properly

ruled on a motion to suppress, findings of fact and credibility

determinations made by the trial court are accorded great defer-

ence and will be reversed only if they are against the manifest

weight of the evidence.'"   People v. Griffin, 385 Ill. App. 3d

202, 207, 898 N.E.2d 704, 708 (2008), quoting People v. Slater,

228 Ill. 2d 137, 149, 886 N.E.2d 986, 994 (2008).    However, this


                               - 5 -
court reviews de novo the trial court's determination of whether

suppression is warranted under those facts.   People v. Gherna,

203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003).

  B. The Exclusionary Rule Only Applies When the Police Engage
        in Misconduct That Violates the Fourth Amendment

          Several years ago in another DUI case, this court

addressed the defendant's argument that a police officer cannot

lawfully ask a driver arrested for DUI on private property to

submit to the Breathalyzer test.   See People v. Garriott, 253

Ill. App. 3d 1048, 1052, 625 N.E.2d 780, 784 (1993).     We noted

in Garriott that the defendant in effect was asking this court to

impose an exclusionary rule prohibiting the introduction of a

driver's refusal simply because the officer lacked statutory

authority to require him to take the Breathalyzer test.

Garriott, 253 Ill. App. 3d at 1052-53, 625 N.E.2d at 784.     We

rejected that argument and wrote the following: "No exclusionary

rule should apply here because the officer did nothing wrong;

although he had no authority to require defendant to take the

[B]reathalyzer test, the officer did nothing wrong by requesting

defendant to take the test."   (Emphases in original.)    Garriott,

253 Ill. App. 3d at 1052-53, 625 N.E.2d at 784.   We later under-

scored that conclusion as follows: "In the absence of any police

misconduct, the exclusionary rule does not apply."     Garriott, 253

Ill. App. 3d at 1053, 625 N.E.2d at 785.

          The most recent decision of the United States Supreme

Court concerning the exclusionary rule reinforces our conclusion

in Garriott.   In Herring v. United States, 555 U.S. ___, 172 L.

                               - 6 -
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 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.      Herring, 555

U.S. at ___, 172 L. Ed. 2d at 502, 129 S. Ct. at 698.     The

Supreme Court agreed with the government's position that suppres-

sion was not appropriate, noting that its cases "establish[ed]

that such suppression is not an automatic consequence of a

[f]ourth[-a]mendment violation.   Instead, the question turns on

the culpability of the police and the potential of exclusion to

deter wrongful police conduct."     Herring, 555 U.S. at ___, 172 L.

Ed. 2d at 502, 129 S. Ct. at 698.    The Court further explained

its holding as follows:

                "The fact that a [f]ourth[-a]mendment

          violation occurred--i.e., that a search or

          arrest was unreasonable--does not necessarily

          mean that the exclusionary rule applies.

          [Citation.]   Indeed, exclusion 'has always

          been our last resort, not our first impulse'

          [citation], and our precedents establish

          important principles that constrain applica-


                               - 7 -
          tion of the exclusionary rule.

                *** We have repeatedly rejected the

          argument that exclusion is a necessary conse-

          quence of a [f]ourth[-a]mendment violation."

          Herring, 555 U.S. at ___, 172 L. Ed. 2d at

          504, 129 S. Ct. at 700.

          The Supreme Court further emphasized that "[t]he

exclusionary rule was crafted to curb police rather than judicial

misconduct" (Herring, 555 U.S. at ___, 172 L. Ed. 2d at 505, 129

S. Ct. at 701) and noted that the extent to which the exclusion-

ary rule is justified varies with the culpability of the law-

enforcement conduct.   Thus, "'an assessment of the flagrancy of

the police misconduct constitutes an important step in the

calculus' of applying the exclusionary rule."   Herring, 555 U.S.

at ___, 172 L. Ed. 2d at 506, 129 S. Ct. at 701, quoting United

States v. Leon, 468 U.S. 897, 911, 82 L. Ed. 2d 677, 691, 104 S.

Ct. 3405, 3414 (1984).   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. at ___, 172 L. Ed. 2d at 507, 129 S. Ct. at

702.   The Court concluded its decision in Herring as follows:

                "Petitioner's claim that police negli-

          gence automatically triggers suppression

          cannot be squared with the principles under-


                               - 8 -
          lying the exclusionary rule, as they have

          been explained in our cases.    In light of our

          repeated holdings that the deterrent effect

          of suppression must be substantial and out-

          weigh any harm to the justice system [cita-

          tion], we conclude that when police mistakes

          are the result of negligence such as that

          described here, rather than systemic error or

          reckless disregard of constitutional require-

          ments, any marginal deterrence does not 'pay

          its way.'   [Citation.]   In such a case, the

          criminal should not 'go free because the

          constable has blundered.'    People v. Defore,

          242 N.Y. 12, 21, 150 N.E. 585, 587 (1926)

          (opinion of the Court by Cardozo, J.)."

          Herring, 555 U.S. at ___, 172 L. Ed. 2d at

          509, 129 S. Ct. at 704.

          Given that the Supreme Court began its discussion in

Herring by accepting the concession of the parties that a fourth-

amendment violation had occurred in that case, we distill the

Supreme Court's holding as supportive of the point this court

made in Garriott 16 years ago: absent police misconduct, the

exclusionary rule does not apply.    The reason why is simple:   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


                               - 9 -
rule's application is police misconduct.   Thus, absent police

misconduct, the exclusionary rule does not apply because there is

no misconduct to deter.

          The trial court here deemed defendant to be "detained"

solely as a result of the trooper's activating the overhead

emergency lights on his police car.   The court concluded that the

trooper's doing so violated the fourth amendment because, when

the trooper activated those overhead lights, he had no legitimate

basis for the "detention" he thereby caused.   Based upon Herring

and Garriott, we disagree with this conclusion because 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.

          C. No Police Misconduct Occurred in This Case

          The rule that absent police misconduct, the

exclusionary rule does not apply is dispositive in this case

because we conclude that no police misconduct occurred here.     We

further conclude 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 danger-

ous.

          In this case, the trial court granted defendant's

motion to suppress because it found that the trooper had seized


                             - 10 -
defendant in violation of his fourth-amendment rights the moment

the trooper activated his overhead emergency lights.    By so

finding, the court essentially declared 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.

            We disagree with the trial court.   Its finding places a

police officer in the unreasonable position of compromising not

only his safety, but also the safety of any occupants of the

stopped vehicle.    Further, other motorists using the highway may

be put at risk because of a police car parked on the highway

shoulder without its emergency lights activated to warn of its

presence.

            As a matter of law, we reject the trial court's narrow

interpretation regarding a police officer's use of his overhead

emergency lights and the unreasonable bright-line rule that such

a determination creates.    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--as in this case--like warning ap-

proaching motorists to be mindful of the presence of cars located

on the shoulder of a busy highway after dusk.

            Stopping on or near a highway is one of the most


                               - 11 -
dangerous aspects of police work.   Statistics compiled by the

Federal Bureau of Investigation show that between 1998 and 2007,

124 on-duty officers were killed after being struck by vehicles

during the performance of official police duties.   Federal Bureau

of Investigation, Law Enforcement Officers Killed and Assaulted

2007, tbl. 61, available at

http://www.fbi.gov/urc/killed/2007/data/table_61.html (last

visited October 7, 2007).   Those duties, which include making

traffic stops and assisting motorists, constitute the third

leading cause of death for on-duty police officers.    Federal

Bureau of Investigation, Law Enforcement Officers Killed and

Assaulted 2007, tbl. 61, available at

http://www.fbi.gov/urc/killed/2007/data/table_61.html (last

visited October 7, 2007).   Given those statistics, we are mindful

of the need to ensure officer safety during roadside stops.

          In any event, we deem nothing of the trooper's activi-

ties remotely close to the police misconduct the Supreme Court

discussed in Herring that would trigger suppression.    For in-

stance, 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.   Herring, 555 U.S. at ___, 172 L. Ed. 2d at

506, 129 S. Ct. at 701.   Nor do the trooper's actions constitute

"systemic error or reckless disregard of constitutional require-

ments" (Herring, 555 U.S. at ___, 172 L. Ed. 2d at 509, 129 S.

Ct. at 704), or the "culpability of the police," thereby suggest-


                              - 12 -
ing "the potential of exclusion to deter wrongful police conduct"

(Herring, 555 U.S. at ___, 172 L. Ed. 2d at 502, 129 S. Ct. at

698).   In sum, the trooper did nothing improper in this case.

Because no police misconduct is present, the exclusionary rule

does not apply.

     III. THE RESCISSION OF THE STATUTORY SUMMARY SUSPENSION

           The State also argues that the trial court erred by

rescinding the statutory summary suspension of defendant's

driver's license.   Specifically, the State contends, in part,

that the court's written order is void because the court did not

hold a hearing as required by section 2-118.1(b) of the Vehicle

Code (625 ILCS 5/2-118.1(b) (West 2008)).   Defendant responds

that this court lacks jurisdiction to consider the court's

rescission determination because the State failed to specifically

appeal that decision, which defendant contends is a separate and

distinct civil proceeding.   However, because the court based its

decision to rescind defendant's statutory summary suspension

solely on its January 2009 order granting defendant's motion to

suppress--which this court has determined was in error--we need

not and do not address the merits of the State's argument.   See

134 Ill. 2d R. 615(a) (on appeal, "[a]ny error, defect, irregu-

larity, or variance which does not affect substantial rights

shall be disregarded").   Instead, we vacate the court's order

rescinding the statutory summary suspension.

                          IV. CONCLUSION

           For the reasons stated, we reverse the trial court's


                              - 13 -
order granting defendant's motion to suppress and remand for

further proceedings.   We also vacate the court's order rescinding

defendant's statutory summary suspension.

          Reversed in part and vacated in part; cause remanded

for further proceedings.

          TURNER, J., concurs.

          MYERSCOUGH, J., specially concurs.




                              - 14 -
            JUSTICE MYERSCOUGH, specially concurring:

            I respectfully specially concur.   In this case, no

fourth-amendment violation occurred.    Although defendant was

seized, the seizure was proper under the community-caretaking

doctrine.    See People v. Luedemann, 222 Ill. 2d 530, 546, 857

N.E.2d 187, 197 (2006) ("Courts use the term 'community

caretaking' to uphold searches or seizures as reasonable under

the fourth amendment when police are performing some function

other than investigating the violation of a criminal statute");

People v. Damian, 374 Ill. App. 3d 941, 944-45, 873 N.E.2d 1, 5

(2007) (officer checking on the well-being of an individual was

engaged in community-caretaking functions when he observed

actions by the defendant that gave the officer probable cause to

arrest him).

            I write separately to note my disagreement with the

majority's decision to forgo an analysis of whether the fourth

amendment was violated, instead determining only whether, assum-

ing a violation of the fourth amendment occurred, the

exclusionary rule should apply.

            The majority finds that "[a]bsent police misconduct,

the exclusionary rule does not apply."    Slip op. at 1.   This

appears, at first blush, to be a logical extension of Herring,

555 U.S.       , 172 L. Ed. 2d at 502, 129 S. Ct. at 698 (holding

that the exclusionary rule did not apply where a negligent

bookkeeping error by a police employee in another county resulted

in the arrest of the defendant without probable cause or a


                               - 15 -
warrant).    However, I have two concerns: (1) the United States

Supreme Court has consistently held that whether the fourth

amendment has been violated and whether exclusion is the appro-

priate sanction for the violation are separate issues; and (2)

the proposed test leaves unclear the conduct that should be

examined when determining whether "misconduct" occurred and

deprives the trial courts and law-enforcement personnel of

guidance as to what is and is not permissible under the fourth

amendment.

            A fourth-amendment violation does not always require

that evidence be suppressed.    See Leon, 468 U.S. at 906-07, 82 L.

Ed. 2d at 687-88, 104 S. Ct. at 3411-12 (holding that the

exclusionary rule would not be applied where the evidence was

obtained by officers acting in reasonable reliance on a search

warrant issued by a detached, neutral magistrate even though the

search warrant was subsequently found to be unsupported by

probable cause).    In fact, whether the fourth amendment has been

violated and whether exclusion is the appropriate sanction for

the violation are separate issues.      See Leon, 468 U.S. at 906, 82

L. Ed. 2d at 688, 104 S. Ct. at 3412, quoting Illinois v. Gates,

462 U.S. 213, 223, 76 L. Ed. 2d 527, 538-39, 103 S. Ct. 2317,

2324 (1983) ("Whether the exclusionary sanction is appropriately

imposed in a particular case, our decisions make clear, is 'an

issue separate from the question whether the [f]ourth[-a]mendment

rights of the party seeking to invoke the rule were violated by

police conduct'"); Arizona v. Evans, 514 U.S. 1, 10, 131 L. Ed.


                               - 16 -
2d 34, 44, 115 S. Ct. 1185, 1191 (1995) (same); see also People

v. Sutherland, 223 Ill. 2d 187, 227, 860 N.E.2d 178, 208 (2006)

(exclusion of evidence is a separate issue from legality of the

search).

           "The exclusionary rule operates as a judicially created

remedy designed to safeguard against future violations of

[f]ourth[-a]mendment rights through the rule's general deterrent

effect."   Evans, 514 U.S. at 10, 131 L. Ed. 2d at 44, 115 S. Ct.

at 1191.   The exclusionary rule should apply only where exclusion

will result in appreciable deterrence and where the benefit of

deterrence outweighs the cost.    Herring, 555 U.S. at      ,      ,

172 L. Ed. 2d at 504-05, 507, 129 S. Ct. at 700, 702 (also noting

the purpose of the exclusionary rule is to "deter deliberate,

reckless, or grossly negligent conduct, or in some circumstances,

recurring or systemic negligence").

           The majority here appears to combine the two analyses--

whether the fourth amendment was violated and whether the

exclusionary rule should apply.    At first, the majority appears

to simply assume a fourth-amendment violation occurred.    Slip op.

at 10 (finding "the trooper's activation of his overhead emer-

gency lights did not constitute police misconduct, even if the

trial court were correct that this action constituted a violation

of the fourth amendment").   But when the majority examines

whether "misconduct" occurred that would justify the application

of the exclusionary rule, the majority examines the reasonable-

ness of the trooper's conduct.    Slip op. at 10-11 (noting that


                              - 17 -
activating the lights was "prudent," "appropriate" and important

for the safety of the officer and others).   However, reasonable-

ness is the primary concern of a fourth-amendment analysis.       See

People v. Salinas, 383 Ill. App. 3d 481, 491, 891 N.E.2d 884, 892

(2008).   The relevant factors of an exclusionary-rule analysis

are whether exclusion would have a deterrent effect--a part of

which is examining the conduct at issue and whether it is

deterrable--and whether the benefit of exclusion outweighs the

cost.   Herring, 555 U.S. at      , 172 L. Ed. 2d at 504-05, 129 S.

Ct. at 700.   This blending of the two analyses--one constitu-

tional and one judicially created--by the majority is incorrect.

           In fact, the majority's reasoning is circular.    How can

the court determine if activating the overhead lights was "mis-

conduct" without conducting the fourth-amendment analysis?     In

some instances, depending on the facts, activating the overhead

light may constitute "misconduct" and other times it may not.

           Further, and assuming that by examining "misconduct"

the majority means examining whether the conduct was deliberate,

reckless, or grossly negligent, the majority bypasses an examina-

tion of whether the fourth amendment has been violated.     The

courts and police officers benefit from having judicial decisions

articulating what is and is not permissible under the fourth

amendment.    In fact, if courts bypass a fourth-amendment analysis

enough times, it would be difficult for a defendant to show

errors arising from recurring negligence.    See Herring, 555 U.S.

at      , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (providing that


                               - 18 -
the exclusionary rule serves to deter, in some circumstances,

recurring or systemic negligence).

          Finally, the conduct in this case, even had it violated

the fourth amendment, was not negligent conduct or conduct based

on misinformation as was the case in Herring.     This was deliber-

ate conduct.   Here, the choices and actions were those of Trooper

Brunnworth and, had those choices and actions been improper,

could be deterrable.   See People v. Estrada, No. 1-08-2909, slip

op. at 1, 26 (August 28, 2009),        Ill. App. 3d    ,    ,

N.E.2d    ,      (involving the search of a parked and locked

vehicle whose recent occupant was seized absent any articulable

suspicion; the appellate court refused to relax the exclusionary

rule and distinguished Herring on the ground that the officer's

"choices and actions" were his own and not "impelled by adminis-

trative negligence or misinformation").

          Because the trooper's conduct did not violate the

fourth amendment, I nonetheless concur.




                              - 19 -
