                                                                                  FILED
                                                                              September 22, 2016
                                    2016 IL App (4th) 160139
                                                                                  Carla Bender
                                                                              4th District Appellate
                                          NO. 4-16-0139                             Court, IL

                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                         )      Appeal from
Plaintiff-Appellant,                                         )      Circuit Court of
v.                                                           )      Macon County
BYRON D. THEUS,                                              )      No. 14CF153
Defendant-Appellee.                                          )
                                                             )      Honorable
                                                             )      Timothy J. Steadman,
                                                             )      Judge Presiding.


               JUSTICE TURNER delivered the judgment of the court, with opinion.
               Justices Harris and Steigmann concurred in the judgment and opinion.

                                            OPINION

¶1             In February 2014, the State charged defendant, Byron D. Theus, with three drug-

related offenses. The trial court granted defendant’s motion to suppress after several hearings.

¶2             On appeal, the State argues the trial court erred in granting defendant’s motion to

suppress. We reverse and remand.

¶3                                     I. BACKGROUND

¶4             In February 2014, the State charged defendant by information with three drug-

related offenses following a traffic stop in March 2011. In count I, the State alleged defendant

committed the offense of controlled-substance trafficking with a prior conviction for unlawful

possession of a controlled substance with intent to deliver (720 ILCS 570/401.1(a) (West 2010);

see also 720 ILCS 570/401(a)(2)(C), 408(a) (West 2010)) in that he knowingly brought 400

grams or more, but less than 900 grams, of cocaine into the state with the intent to manufacture
or deliver it. In count II, the State alleged defendant committed the offense of unlawful

possession of a controlled substance with intent to deliver with a prior conviction for unlawful

possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(C), 408(a)

(West 2010)) in that he knowingly and unlawfully possessed with the intent to deliver 400 grams

or more, but less than 900 grams, of a substance containing cocaine, a controlled substance. In

count III, the State alleged defendant committed the offense of unlawful possession of a

controlled substance with a prior conviction for unlawful possession of a controlled substance

with intent to deliver (720 ILCS 570/402(a)(2)(C), 408(a) (West 2010)) in that he knowingly and

unlawfully had in his possession 400 grams or more, but less than 900 grams, of a substance

containing cocaine, a controlled substance.

¶5             In April 2014, defendant filed a motion to suppress evidence. Therein, defendant

alleged he was a passenger in a car driven by Shawn Barbee, who was pulled over for improper

lane usage. A search of the vehicle resulted in the discovery of cocaine in the trunk of the

vehicle, and both defendant and Barbee were arrested. Defendant alleged the officer who pulled

over the vehicle could not have reliably observed a traffic violation and thus no probable cause to

stop and/or search the vehicle existed.

¶6             In May 2015, the trial court conducted a hearing on the motion to suppress.

Decatur police detective Chad Larner testified he was on duty on March 28, 2011, when he was

traveling in a northeasterly direction on Illinois Route 48 in Macon County. He observed a gold-

colored Chevrolet Malibu traveling on the road where “it splits into two lanes.” He then saw the

vehicle “make an abrupt lane change” without activating its turn signal. Larner radioed Macon

County sheriff’s deputy Dale Pope about the failure-to-signal violation.

¶7             Deputy Pope testified he did not observe the traffic violation but he did stop the



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vehicle. He told the occupants he pulled over the vehicle due to a lane violation.

¶8             Shawn Barbee testified he was traveling with defendant on March 28, 2011. He

stated he drove on Route 48 and “just continued straight into the lane that [he] was in.”

Following closing arguments, the trial court took the matter under advisement.

¶9             In its written order, the trial court found the stop was predicated on the alleged

violation of section 11-804 of the Illinois Vehicle Code (625 ILCS 5/11-804 (West 2010)). After

reviewing a video exhibit and a photo exhibit of the roadway in question, the court found the

road is “poorly marked.”

               “There is virtually no warning—in the form of a sign adjacent to

               the roadway or markings on the pavement itself—indicating that

               roadway turns from one to two northbound lanes. It appears that

               any abrupt movement of a vehicle would most likely be

               attributable to the fact that the lane markings abruptly change

               without warning. *** The law recognizes that deviations in the

               movement of a vehicle may be attributable to road conditions. ***

               The vehicle was not turned. There was no movement made from

               one marked lane to another. There is no evidence suggesting that

               movement of the vehicle was made without reasonable safety.

               Under these unique circumstances the court finds that there was no

               duty to signal and therefore no reasonable grounds to believe that

               [section] 11-804 had been violated.”

The court granted the motion to suppress.

¶ 10           In June 2015, the State filed a motion to reconsider and to present additional



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evidence. The State argued Detective Larner’s objectively reasonable belief, although perhaps a

mistake of fact, that there was a requirement to signal when the lane branched from one to two

lanes provided reasonable suspicion or probable cause to believe a traffic violation had occurred

when Barbee failed to signal. The State further alleged it was prohibited from presenting

evidence regarding an ongoing narcotics investigation that provided reasonable suspicion to

make the stop.

¶ 11             In July 2015, the trial court held a hearing on the motion to reconsider. The court

noted the Illinois Supreme Court had handed down an opinion in People v. Gaytan, 2015 IL

116223, 32 N.E.3d 641, in May 2015. Gaytan relied on the United States Supreme Court’s

decision in Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014), which dealt with

mistakes of law.

                 “The question becomes under [the] facts and circumstances in this

                 particular case as previously heard by the Court during the course

                 of the Motion to Suppress, was it objectively reasonable for, in this

                 case I believe it was Detective Larner, to believe that this statute,

                 [section] 11-804 had been violated for a lack of a signal being

                 activated at this particular portion of the roadway. Because the

                 statute is ambiguous, it is this Court’s belief that under Heien and

                 Gaytan, that the previous ruling was incorrect. That there was a

                 mistake of law based upon a statute which was genuinely

                 ambiguous.”

The court granted the State’s motion to reconsider and denied defendant’s motion to suppress.

¶ 12             In August 2015, defendant filed a motion to reconsider the denial of his motion to



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suppress. Defendant argued section 11-804 of the Vehicle Code is unambiguous and Detective

Larner’s belief that section 11-804 required defendant to use his turn signal was not a reasonable

mistake of law.

¶ 13           On September 14, 2015, the trial court issued its ruling in a docket entry. The

court found section 11-804 is “somewhat awkwardly written.” The court stated that in reading

subsection 11-804(d) in conjunction with subsection 11-804(a), “it does appear, however, that

activation of a turn signal is required in three specific situations, none of which apply to the facts

preceding the traffic stop in this case.” In finding section 11-804 is unambiguous under Gaytan,

the court allowed defendant’s motion to reconsider.

¶ 14           On September 28, 2015, the State filed a motion to present additional evidence

and to reconsider the trial court’s ruling on the motion to suppress. Therein, the State alleged it

had additional evidence regarding the ongoing investigation into defendant’s drug-trafficking

activities. The State claimed it was prohibited from presenting this evidence as an alternative

justification for the stop and asked the trial court to allow it do so. The court allowed the State to

adduce additional evidence regarding whether officers had reasonable grounds or probable cause

to believe the vehicle or occupants had been or were committing a criminal offense at the time

the stop was effectuated.

¶ 15           In February 2016, the trial court conducted a hearing on the State’s motion.

Decatur police detective David Dailey testified he was involved in defendant’s traffic stop on

March 28, 2011. He stated an investigation of defendant had begun in March 2009. At that time,

the investigation involved “numerous” controlled drug purchases from Tony Barbee at a Decatur

residence, where it was determined the water service was in defendant’s name. The police

executed a search warrant and recovered over 100 grams of controlled substances inside a



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garbage bag in a vacant lot next to the residence. Dailey stated the garbage bag appeared to be a

part of a bag found inside the residence.

¶ 16           Dailey testified he became familiar with Kimothy Owens in July 2009. Owens

had been arrested and transferred to federal court when he sought to cooperate with Dailey’s

investigation. Owens stated he was defendant’s cousin or second cousin and said defendant was

responsible for bringing large quantities of cocaine from Tennessee to Decatur. In February

2010, a confidential source purchased cocaine from defendant.

¶ 17           In March 2011, Hertz Rent a Car contacted the Decatur police department and

indicated a female had rented a vehicle and defendant was listed as a secondary driver. Dailey

stated drug dealers often use vehicles rented in someone else’s name, which can “provide

another reason for the drugs being in the car” other than the person operating it. Rental cars are

also used to avoid forfeiture. A global-positioning-system device was placed in the vehicle that

the female and defendant had rented. Dailey saw a woman and defendant pick up the vehicle on

March 15, 2011. The next day, Dailey monitored the location of the vehicle and observed

defendant as the only occupant. On March 28, 2011, Dailey received notification that the vehicle

had left Macon County. A Pana, Illinois, police officer observed two black males in the vehicle.

Dailey stated the vehicle ultimately ended up in Tennessee, where it stayed for less than two

hours. It then took a different route back to Decatur. Dailey monitored the vehicle and conducted

the traffic stop in question at approximately 11:30 p.m. Dailey questioned Barbee about the

nature of his trip, and Barbee stated he had gone to Tennessee for a couple of days to attend a

funeral. When asked what clothes he wore to the funeral since there were no clothes in the

vehicle, Barbee stated he had rented a tuxedo.

¶ 18           Following arguments, the trial court reiterated that it found no reasonable grounds



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to believe section 11-804 had been violated. In considering the additional information, the court

noted the last direct evidence of defendant’s involvement in drug activity was the controlled buy

in February 2010, over a year before the traffic stop. The court found the police department’s

information was “too remote” to establish reasonable grounds that defendant had contraband in

the rental vehicle on March 28, 2011. The court denied the State’s motion. Thereafter, the State

filed a certificate of impairment. This appeal followed.

¶ 19                                     II. ANALYSIS

¶ 20           The State argues the trial court erred in ruling the stop of the vehicle in which

defendant was a passenger was not authorized by a reasonable belief that the driver had

committed a traffic offense. We agree.

¶ 21                                  A. Standard of Review

¶ 22           On review of a motion to suppress, this court is presented with mixed questions of

law and fact. People v. McQuown, 407 Ill. App. 3d 1138, 1143, 943 N.E.2d 1242, 1246 (2011).

                       “In reviewing a trial court’s ruling on a motion to suppress,

               the trial court’s findings of historical fact are reviewed only for

               clear error, giving due weight to any inferences drawn from those

               facts by the fact finder, and reversal is warranted only when those

               findings are against the manifest weight of the evidence. [Citation.]

               However, a reviewing court remains free to undertake its own

               assessment of the facts in relation to the issues and may draw its

               own conclusions when deciding what relief should be granted.

               [Citation.] A trial court’s ultimate legal ruling as to whether

               suppression is warranted is subject to de novo review.” People v.



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               Hackett, 2012 IL 111781, ¶ 18, 971 N.E.2d 1058.

¶ 23                                  B. The Fourth Amendment

¶ 24           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. Similarly, the Illinois Constitution affords

citizens with “the right to be secure in their persons, houses, papers[,] and other possessions

against unreasonable searches [and] seizures.” Ill. Const. 1970, art. I, § 6. Our supreme court has

interpreted the search-and-seizure clause of the Illinois Constitution in a manner consistent with

the United States Supreme Court’s fourth-amendment jurisprudence. See People v. Caballes, 221

Ill. 2d 282, 335-36, 851 N.E.2d 26, 57 (2006).

¶ 25           “When a police officer observes a driver commit a traffic violation, the officer is

justified in briefly detaining the driver to investigate the violation.” People v. Ramsey, 362 Ill.

App. 3d 610, 614, 839 N.E.2d 1093, 1097 (2005). A stop of a vehicle and the detention of its

occupants constitutes a “seizure” under the fourth amendment. People v. Jones, 215 Ill. 2d 261,

270, 830 N.E.2d 541, 549 (2005); see also Brendlin v. California, 551 U.S. 249, 257-58 (2007);

People v. Harris, 228 Ill. 2d 222, 231, 886 N.E.2d 947, 954 (2008) (stating “a passenger is

seized for fourth amendment purposes when the vehicle in which he is riding is subjected to a

traffic stop”). Thus, “vehicle stops are subject to the fourth amendment’s reasonableness

requirement” and are analyzed under the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968).

People v. Close, 238 Ill. 2d 497, 505, 939 N.E.2d 463, 467 (2010). “A police officer may

conduct a brief, investigatory stop of a person where the officer can point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

warrant the intrusion.” Hackett, 2012 IL 111781, ¶ 20, 971 N.E.2d 1058. “If reasonable



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suspicion is lacking, the traffic stop is unconstitutional and evidence obtained as a result of the

stop is generally inadmissible.” Gaytan, 2015 IL 116223, ¶ 20, 32 N.E.3d 641.

¶ 26           To be constitutionally permissible, an “investigatory stop must be justified at its

inception.” Close, 238 Ill. 2d at 505, 939 N.E.2d at 467. “ ‘[T]he police officer must be able to

point to specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion.’ ” Close, 238 Ill. 2d at 505, 939 N.E.2d at 467 (quoting

Terry, 392 U.S. at 21). “In judging the police officer’s conduct, we apply an objective standard:

‘would the facts available to the officer at the moment of the seizure *** “warrant a man of

reasonable caution in the belief” that the action was appropriate?’ ” Close, 238 Ill. 2d at 505, 939

N.E.2d at 467 (quoting Terry, 392 U.S. at 21-22).

¶ 27           A police officer’s objectively reasonable mistake, whether of fact or law, may

provide the reasonable suspicion necessary to justify a traffic stop. In Heien, 574 U.S. at ___,

135 S. Ct. 530, the United States Supreme Court held an officer’s objectively reasonable mistake

of fact or law may provide the reasonable suspicion necessary to justify a traffic stop, stating:

               “Reasonable suspicion arises from the combination of an officer’s

               understanding of the facts and his understanding of the relevant

               law. The officer may be reasonably mistaken on either ground.

               Whether the facts turn out to be not what was thought, or the law

               turns out to be not what was thought, the result is the same: the

               facts are outside the scope of the law. There is no reason, under the

               text of the Fourth Amendment or our precedents, why this same

               result should be acceptable when reached by way of a reasonable

               mistake of fact, but not when reached by way of a similarly



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                reasonable mistake of law.”

The Court cautioned, however, that “[t]he Fourth Amendment tolerates only reasonable

mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.”

(Emphases in original.) Heien, 574 U.S. at ___, 135 S. Ct. at 539.

¶ 28            After Heien was decided, our supreme court confronted whether a traffic stop

based on a mistake of law constitutes a violation of the fourth amendment or the Illinois

Constitution. In Gaytan, the court found a vehicle stop will not violate the fourth amendment if

the officer’s mistake of law was objectively reasonable. Gaytan, 2015 IL 116223, ¶ 48, 32

N.E.3d 641. We note “[a] judicial decision that establishes a new constitutional rule applies to all

criminal cases pending on direct review.” People v. Davis, 2014 IL 115595, ¶ 36, 6 N.E.3d 709.

As Heien and Gaytan were decided while defendant’s case was still proceeding through the trial

court, the principles of law set forth therein are relevant in determining whether the evidence

should have been suppressed in this case.

¶ 29                          C. Section 11-804 of the Vehicle Code

¶ 30            Section 11-804 of the Vehicle Code (625 ILCS 5/11-804 (West 2010)) provides,

in part, as follows:

                “(a) No person may turn a vehicle at an intersection unless the

                vehicle is in proper position upon the roadway as required in

                Section 11-801 or turn a vehicle to enter a private road or

                driveway, or otherwise turn a vehicle from a direct course or move

                right or left upon a roadway unless and until such movement can

                be made with reasonable safety. No person may so turn any vehicle

                without giving an appropriate signal in the manner hereinafter



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               provided.

                                                ***

                      (d) The electric turn signal device required in Section 12-

               208 of this Act must be used to indicate an intention to turn,

               change lanes or start from a parallel parked position but must not

               be flashed on one side only on a parked or disabled vehicle or

               flashed as a courtesy or ‘do pass’ signal to operators of other

               vehicles approaching from the rear. However, such signal devices

               may be flashed simultaneously on both sides of a motor vehicle to

               indicate the presence of a vehicular traffic hazard requiring

               unusual care in approaching, overtaking and passing.”

¶ 31           In this case, Barbee was driving northeast toward Decatur on Illinois Route 48, a

two-lane road with traffic traveling in both directions. Although not produced on the date of the

traffic stop, a video of the road from Detective Larner’s squad car was submitted at the

suppression hearing and has been included in the record on appeal. If a vehicle was traveling in

the same direction as Barbee, the driver would have a solid white line on his right indicating the

presence of the shoulder. To his left, he would have a solid or broken yellow line, indicating a

passing or no-passing zone, dividing the middle of the road. As Route 48 nears the U.S. Route 51

overpass, the lane in which Barbee was driving widens, thereby becoming two lanes. Thus, the

solid white line remained on his right, broken white lines appeared in front of him to delineate

two lanes, and a median appeared on his left.

¶ 32           Both the State and defendant agree section 11-804(d) of the Vehicle Code

requires a driver to use his or her turn signal when changing lanes. The State argues it was



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necessary for Barbee to signal at this stretch of roadway when the road split from one lane to two

lanes. Defendant, on the other hand, argues Barbee did not change lanes at all.

¶ 33           Here, Detective Larner concluded Barbee committed a traffic violation for failing

to signal. If his interpretation was mistaken, Barbee could not have been convicted for his failure

to signal—even if Larner’s belief was objectively reasonable—because Barbee’s failure to signal

would not have been a violation of section 11-804. However, Larner’s same mistaken

interpretation could justify stopping Barbee’s vehicle if the interpretation was objectively

reasonable. See Heien, 574 U.S. at ___, 135 S. Ct. at 540 (stating “just because mistakes of law

cannot justify either the imposition or the avoidance of criminal liability, it does not follow that

they cannot justify an investigatory stop”).

¶ 34           We find Larner’s belief that section 11-804 of the Vehicle Code required Barbee

to signal at this juncture of the roadway was objectively reasonable under the circumstances. The

plain text of the statute requires a signal when changing lanes. There is no ambiguity in that

requirement. However, it does not address whether it applies to lane divisions and mergers, and

thus an ambiguity arises when applying the law to the spot of Route 48 where Barbee is alleged

to have committed the infraction. Here, one lane became two lanes, requiring Barbee to pick one.

See Mahaffey v. State, 364 S.W.3d 908 (Tex. Crim. App. 2012) (stating “ ‘changing lanes’

requires the existence of more than one lane”). He could not continue driving straight; otherwise

he would be straddling the dotted white line separating the two lanes. Barbee testified he moved

into the left lane. Thus, the solid white line would no longer have been on his right. Instead, the

dotted white line delineating the two new lanes would be. Larner stated the vehicle made “an

abrupt lane change” without activating its signal.

¶ 35           The Supreme Court pointed out “an officer may ‘suddenly confront’ a situation in



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the field as to which the application of a statue is unclear—however clear it may later become.”

Heien, 574 U.S. at ___, 135 S. Ct. at 539. In the case sub judice, it is not at all clear whether

section 11-804 of the Vehicle Code required Barbee to signal here. We have found no published

decisions addressing the question of whether a turn signal is required when a lane divides into

two lanes. However, even if defendant is correct about section 11-804—that a turn signal is not

required at this spot of Route 48—it would not render the traffic stop here illegal. The result is

the same whether Larner was right or wrong about the law.

¶ 36           While Barbee may have had a defense to a prosecution for violating the statute,

Larner’s belief that his failure to signal violated the Vehicle Code was not objectively

unreasonable. We find the traffic stop in this case was justified at its inception, either because

Barbee committed a traffic violation or because Detective Larner made a reasonable mistake of

law. The outcome is the same either way. As we hold the stop was valid under the fourth

amendment, we find the trial court erred in granting defendant’s motion to suppress.

¶ 37                                  III. CONCLUSION

¶ 38           For the reasons stated, we reverse the trial court’s judgment and remand for

further proceedings.

¶ 39           Reversed and remanded.




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