                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Scott, 2012 IL App (5th) 100253




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    MICHAEL E. SCOTT, Defendant-Appellee.



District & No.             Fifth District
                           Docket Nos. 5-10-0253, 5-10-0254 cons.


Filed                      January 19, 2012
Rehearing denied           February 10, 2012
Held                       In prosecutions for possession of unstamped cigarettes, driving under the
(Note: This syllabus       influence, and possession of cannabis, the trial court’s order granting
constitutes no part of     defendant’s motion to suppress evidence and statements was reversed
the opinion of the court   where the trial court’s decision that no probable cause existed for the
but has been prepared      initial stop of defendant’s vehicle for violating the improper-lane-usage
by the Reporter of         statute was based on the court’s erroneous belief that the statute was
Decisions for the          violated only when other persons on the roadway or their property were
convenience of the         endangered, and in defendant’s case, there was no evidence that
reader.)
                           defendant endangered anyone or any property when his vehicle went over
                           the fog line, and the cause was remanded for further proceedings,
                           including consideration of the additional grounds for suppression raised
                           by defendant.


Decision Under             Appeal from the Circuit Court of Effingham County, Nos. 09-CF-233,
Review                     09-DT-338; the Hon. Sherri L.E. Tungate, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal                      Solicitor General, and Eugene N. Bian, Michael M. Glick, and Eldad Z.
                            Malamuth, Assistant Attorneys General, of counsel), for the People.

                            Michael J. Pelletier, Johannah B. Weber, and John H. Gleason, all of
                            State Appellate Defender’s Office, of Mt. Vernon, for appellee.


Panel                       JUSTICE STEWART delivered the judgment of the court, with opinion.
                            Justices Welch and Chapman concurred in the judgment and opinion.




                                              OPINION

¶1          After a traffic stop for improper lane usage, the defendant, Michael E. Scott, was charged
        with possession of unstamped cigarettes in case number 09-CF-233 and with driving under
        the influence of drugs and possession of cannabis in case number 09-DT-338. He filed
        motions to suppress evidence and statements in both cases. After an evidentiary hearing, the
        court granted the motions. The State filed a certificate of substantial impairment and a timely
        notice of appeal. The two cases were consolidated for this appeal. We reverse and remand.

¶2                                          BACKGROUND
¶3          We summarize the pertinent evidence introduced at the hearing on the motions to
        suppress as follows. Effingham County sheriff’s deputy Darin Deters, who had been a law
        enforcement officer for four years, was on duty in a marked squad car during the early
        morning hours of November 4, 2009. He testified that he had received training on how to
        conduct traffic stops and had made between 800 and 900 traffic stops as a law enforcement
        officer. In his training, he was taught to look for violations of the Illinois Vehicle Code when
        patrolling in his squad car.
¶4          Deputy Deters testified that he was patrolling northbound on Interstate 57 when he
        noticed a gray Kia passenger car that crossed over the white fog line on the right side of the
        interstate twice for a couple of seconds each time. He did not notice any other vehicles or
        pedestrians in the vicinity. Deputy Deters testified that both the front and rear right-side tires
        crossed over the fog line. At approximately 2:50 a.m., Deputy Deters began following three
        to four car lengths behind the Kia. The Kia exited the interstate. As Deputy Deters followed
        the car, both the front and rear right-side tires again crossed the fog line on the exit ramp, and
        this time both tires were over the fog line for about 250 feet. He estimated that the defendant
        was driving at about 50 miles per hour on the exit ramp. Deputy Deters testified that he
        suspected that the defendant might be impaired, sleepy, or distracted, all of which are safety


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     concerns. The defendant testified that he was aware of the squad car following him, that it
     was not possible that his tires crossed over the fog line, and that he was going to a nearby
     truck stop for coffee and donuts when the officer pulled him over.
¶5       After he observed the Kia make a left turn from the exit ramp, Deputy Deters called in
     the traffic stop and his location to the dispatcher and activated his overhead emergency
     lights, which caused the driver of the Kia to pull over. Deputy Deters walked to the driver’s
     door of the Kia and used his flashlight to look inside the vehicle and observe the defendant
     as he explained the reason for the stop and asked for identification and proof of insurance.
     Deputy Deters did not notice anything illegal in the interior of the car and did not smell any
     alcohol, cannabis, or other illegal drugs. He asked the defendant where he had been and
     where he was going. The defendant told him that he had traveled from Chicago to the St.
     Louis area to shop and that he was on his way back to Chicago, where he lived. The
     defendant showed the officer a bag he said contained a pair of long underwear he had
     purchased.
¶6       Deputy Deters testified that the defendant’s behavior “stood out just a little bit” because
     he was more nervous than usual for a person pulled over for a traffic violation. He said that
     the defendant’s “movements appeared almost mechanical like they would jerk,” that his
     movements were “very robotic,” that his hand trembled, and that his carotid artery was
     pulsing. He testified that he thought the defendant’s eyes were red and irritated but that he
     had not listed red or irritated eyes in his report. He did not think the defendant’s explanation
     for his trip, that he traveled all the way from Chicago to the St. Louis area just to buy a pair
     of long underwear, made much sense. From his training, Deputy Deters was certain there was
     some type of illegal activity taking place in the defendant’s vehicle. At that point, Deputy
     Deters returned to his squad car and called for an officer with a drug-detection dog to come
     to the scene to conduct a walk-around of the defendant’s vehicle. While waiting, Deputy
     Deters completed a written warning for improper lane usage as a result of observing the
     defendant cross the fog line. Within a couple of minutes, Deputy Robert Rich of the
     Effingham County sheriff’s department arrived with his narcotics-detection dog, Jaeger.
¶7       Deputy Rich had 22 years’ experience with the sheriff’s department and had been a
     canine handler since 2001. Deputy Rich testified about his and Jaeger’s training and the
     procedures they employ when conducting a dog sniff of the exterior of a vehicle. Jaeger
     alerted to the driver’s door, to the front passenger door, and again to the driver’s door of the
     defendant’s vehicle. Deputy Rich informed Deputy Deters that Jaeger had alerted on the
     vehicle, and he put the dog back in his squad car. Deputy Deters exited his squad car, went
     to the defendant’s car, and asked him to get out. Deputy Rich began searching the interior
     of the defendant’s car as Deputy Deters questioned the defendant. Deputy Rich testified that
     he was aware of Deputy Deters talking to the defendant, but he was searching the car and
     could not hear what they were saying. Deputy Deters testified that he told the defendant that
     Jaeger had alerted to the car, and Deputy Deters asked him if there was anything illegal in
     his car. The defendant told him there was a marijuana cigarette in an eyeglasses container in
     the car. Deputy Deters testified that he asked the defendant when he had last smoked
     marijuana, and the defendant replied that he had smoked it twice earlier in the day. The
     defendant acknowledged that he told Deputy Deters that he had smoked earlier that day, but

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       denied that he had told him he smoked marijuana twice.
¶8         As Deputy Deters was talking to the defendant, Deputy Rich said that he had found a
       marijuana cigarette in the car. Deputy Rich then opened the trunk and found two large boxes
       of cigarettes. Deputy Deters opened one of the cartons of cigarettes and noticed that the top
       two cigarette packs were stamped with State of Missouri tax stamps, but not State of Illinois
       tax stamps. Deputy Deters testified that the defendant said times were tough, that he did not
       have a job, and that he was planning to sell the cigarettes. Deputy Deters placed the
       defendant under arrest for possession of cannabis and driving under the influence of drugs
       and placed him in the squad car. He then called for the defendant’s car to be towed and began
       a tow inventory of the car. He took the marijuana and the cartons of cigarettes into custody
       and transported the defendant to jail. At the jail, Deputy Deters also issued the defendant a
       citation for possession of unstamped cigarettes.
¶9         In its ruling from the bench, the trial court commented on the credibility of the witnesses,
       but made no finding as to whether it believed the defendant’s vehicle crossed the fog line.
       The court stated as follows:
                “Clearly if you read the definition of improper lane usage, there has been nothing
           provided by the State to show in any manner that someone was put in jeopardy because
           it does provide that the vehicle should not be moved from a lane until the movement can
           be made with safety. There is no testifying or testimony here that he almost impacted
           with anything or almost hit anyone.
                ***
                So after having considered the testimony, judging the credibility of the witnesses, the
           Court finds that there was no probable cause for the stop initially and the Defendant’s
           Motions to Suppress are granted.”

¶ 10                                        ANALYSIS
¶ 11       A review of a trial court’s ruling on a motion to suppress involves mixed questions of
       law and fact. People v. Jones, 215 Ill. 2d 261, 267 (2005).
           “Findings of historical fact made by the circuit court will be upheld on review unless
           such findings are against the manifest weight of the evidence. This deferential standard
           of review is grounded in the reality that the circuit court is in a superior position to
           determine and weigh the credibility of the witnesses, observe the witnesses’ demeanor,
           and resolve conflicts in their testimony. However, a reviewing court remains free to
           undertake its own assessment of the facts in relation to the issues presented and may
           draw its own conclusions when deciding what relief should be granted. Accordingly, we
           review de novo the ultimate question of whether the evidence should be suppressed.” Id.
           at 268.
       Although the defendant raised multiple grounds in support of his motions to suppress
       evidence and statements, the only ground relied upon by the trial court in granting the
       motions was a finding that the officer had no probable cause for the initial stop. Since this
       determination was based upon the court’s interpretation of the improper-lane-usage statute,


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       our review is de novo.
¶ 12       Vehicle stops are “subject to the fourth amendment requirement of reasonableness in all
       the circumstances.” Id. at 270. We analyze the reasonableness of traffic stops under the
       principles set forth by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).
           “Pursuant to Terry, a law enforcement officer may, under appropriate circumstances,
           briefly detain a person for questioning if the officer reasonably believes that the person
           has committed, or is about to commit, a crime. [Citation.] However, the investigative
           detention must be temporary and last no longer than is necessary to effectuate the
           purpose of the stop. [Citation.] This aspect of Terry has been codified in our Code of
           Criminal Procedure of 1963. 725 ILCS 5/107-14 (West 2000).” Jones, 215 Ill. 2d at 270-
           71.
       Thus, under Terry, the analysis involves a dual inquiry: (1) whether the officer’s action was
       justified at its inception and (2) whether it was reasonably related in scope to the
       circumstances that initially justified the stop. People v. Al Burei, 404 Ill. App. 3d 558, 562-63
       (2010). Because the trial court granted the motions on the ground that the traffic stop was not
       justified at its inception, we confine our analysis to the first part of the Terry inquiry.
¶ 13       The preliminary consideration, that the officer reasonably believes that the person has
       committed or is about to commit a crime, is satisfied when the officer observes a violation
       of the vehicle code. Jones, 215 Ill. 2d at 271 (the officer was justified in making the initial
       traffic stop when he observed the defendant driving with inoperable taillights, “a clear
       violation of our vehicle code”); see also People v. Smith, 172 Ill. 2d 289, 297 (1996) (the
       officer had probable cause to arrest the defendant because he observed a violation of the
       improper-lane-usage statute). Therefore, in the case at bar, if Deputy Deters observed the
       defendant violate the improper-lane-usage statute, he was justified in effecting the initial
       traffic stop.
¶ 14       “Whether probable cause exists depends upon the reasonable conclusion to be drawn
       from the facts known” to the officer at the time he acts. Devenpeck v. Alford, 543 U.S. 146,
       152 (2004). We are required to focus our inquiry on the objective reasonableness of the
       officer’s conduct at the moment of the arrest and to decide whether the facts and
       circumstances within his knowledge at that time were sufficient to warrant a prudent man to
       believe that the defendant had committed or was committing an offense. Carmichael v.
       Village of Palatine, Illinois, 605 F.3d 451, 457 (7th Cir. 2010). “The reasonableness of the
       seizure turns on what the officer knew, not whether he knew the truth or whether he should
       have known more.” Id.
¶ 15       The improper-lane-usage statute provides as follows:
           “Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic
           the following rules in addition to all others consistent herewith shall apply.
                (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and
           shall not be moved from such lane until the driver has first ascertained that such
           movement can be made with safety.” 625 ILCS 5/11-709(a) (West 2010).
       In Smith, the Illinois Supreme Court considered the defendant’s argument that the arresting
       officer did not have probable cause to stop him for a violation of the improper-lane-usage

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       statute because he had not endangered anyone by momentarily crossing over a lane line.
       Smith, 172 Ill. 2d at 296. The court rejected the defendant’s argument, stating that the statute
       establishes two separate, exclusive requirements: (1) that a motorist must drive the vehicle
       as nearly as practicable entirely within one lane and (2) that a driver may not move from one
       lane of traffic until he or she has determined the move can be made safely. Id. at 296-97. The
       court ruled that “when a motorist crosses over a lane line and is not driving as nearly as
       practicable within one lane, the motorist has violated the statute.” Id. at 297. The court
       determined that the officer’s observation of the defendant crossing over the lane line, without
       any testimony or evidence concerning the safety of that maneuver, was sufficient justification
       to provide the officer with probable cause to arrest the defendant. Id.
¶ 16        Recently, the Third District Appellate Court interpreted the ruling in Smith when it
       affirmed a trial court’s grant of a motion to suppress. People v. Hackett, 406 Ill. App. 3d 209
       (2010), appeal allowed, No. 111781 (Ill. Mar. 30, 2011). In Hackett, the arresting officer
       testified that he had observed the defendant cross over the lane divider twice for a matter of
       seconds each time. Id. at 211. A majority of the Hackett court, over a vigorous dissent,
       interpreted Smith to require that an officer observe a driver cross a lane line “for some
       reasonably appreciable distance” before he would have probable cause to stop the driver for
       improper lane usage. Id. at 214. The court held that the officer’s observation of the
       defendant’s vehicle crossing the lane line twice for a few seconds each time was insufficient
       cause to stop the defendant’s vehicle. Id. at 215. We reject the analysis of the Hackett court
       as contrary to the holding in Smith. The supreme court did not interpret the improper-lane-
       usage statute to require that an officer observe a driver cross a lane line for a particular
       distance in order to have probable cause to stop the vehicle. Rather, the court plainly stated
       that “when a motorist crosses over a lane line and is not driving as nearly as practicable
       within one lane, the motorist has violated the statute.” Smith, 172 Ill. 2d at 297.
¶ 17        It is apparent from the record that the trial court believed that a driver could only violate
       the improper-lane-usage statute if driving outside of a single lane endangered other persons
       on the roadway or their property. There was no claim in this case that the defendant’s driving
       endangered anyone. Thus, credibility determinations played no role in the trial court’s
       decision. Deputy Deters testified that he observed the defendant cross over the fog line twice
       for a couple of seconds each time while following him on Interstate 57. Each time, both
       right-side tires were over the fog line. This testimony was sufficient, if believed, to show that
       Deputy Deters reasonably believed that the defendant violated the improper-lane-usage
       statute and to provide the officer with probable cause to effect the initial traffic stop. The trial
       court did not reject Deputy Deters’s testimony about these observations, but merely
       determined that there was no evidence that what he observed endangered anyone. Thus, the
       trial court’s ruling that evidence of endangerment was essential to the finding of probable
       cause in this case was based upon an erroneous interpretation of the improper-lane-usage
       statute and must be reversed.
¶ 18        We note that the defendant testified that he did not cross the fog line while being
       followed by Deputy Deters, and the trial court never determined whether it believed the
       testimony of the officer or the defendant on this issue. The court simply determined that, in
       the absence of evidence of endangerment, probable cause for the initial stop did not exist.

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       Further, the defendant asserted additional grounds for the suppression of evidence and
       statements which were not reached by the court. Accordingly, this cause must be remanded
       for further proceedings not inconsistent with this decision.

¶ 19                                      CONCLUSION
¶ 20       For all of the foregoing reasons, the trial court’s order granting the defendant’s motions
       to suppress evidence and statements is reversed, and this cause is remanded for further
       proceedings.

¶ 21      Reversed and remanded.




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