                                         2015 IL App (3d) 140105

                                 Opinion filed April 3, 2015
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 12th Judicial Circuit,
                                            )     Will County, Illinois,
           Plaintiff-Appellee,              )
                                            )     Appeal No. 3-14-0105
           v.                               )     Circuit Nos. 13-DT-346, 13-TR-18010,
                                            )     13-TR-18011, 13-TR-18012 and 13-TR-
                                            )     18013.
     HERIKA TAIWO,                          )
                                            )     Honorable
                                            )     Domenica Osterberger,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices Lytton and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          After a bench trial, defendant, Herika Taiwo, was convicted of driving under the

     influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2012)), improper lane usage (625

     ILCS 5/11-709(a) (West 2012)), and failure to notify authorities of an accident (625 ILCS 5/11-

     406(a) (West 2012)). Defendant appeals the DUI conviction alone by challenging two rulings in

     the trial court. First, defendant claims the trial court improperly denied her motion to quash her

     arrest and suppress evidence (motion to suppress). Alternatively, defendant contends the State
     failed to prove beyond a reasonable doubt that she was in actual physical control of any vehicle

     on the night of her arrest for DUI. We affirm.

¶2                                                     FACTS

¶3          On February 17, 2013, defendant was charged with DUI, pursuant to section 11-501(a)(2)

     of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501(a)(2) (West 2012)), improper

     lane usage (625 ILCS 5/11-709(a) (West 2012)), failure to notify authorities of an accident (625

     ILCS 5/11-406(a) (West 2012)), failure to reduce speed (625 ILCS 5/11-601(a) (West 2012)),

     and operating an uninsured motor vehicle (625 ILCS 5/3-707(a) (West 2012)). On April 3, 2013,

     defendant filed a motion to suppress arguing officers did not have reasonable, articulable

     suspicion to conduct a traffic stop of a vehicle driven by another person, but occupied by

     defendant as a front-seat passenger.

¶4          A hearing on defendant’s pretrial motion to suppress began on November 7, 2013.

     Defendant called Officer James Block, of the Bolingbrook police department, who testified he

     received a call from the dispatcher on February 17, 2013, at approximately 3 a.m. According to

     the dispatcher, citizens reported a black sports utility vehicle (SUV) stranded in a median on

     Veterans Parkway near Coventry Lane and an African-American woman with short, curly hair

     “was with the vehicle.” Officer Block testified that “several parties *** relayed information” to

     the dispatch center concerning the black SUV. One of the callers, “Rachel,” reported a black

     SUV straddling the curb with a possibly intoxicated driver with short, curly hair. Once Officer

     Block arrived at that location, he confirmed that a black SUV was stranded in the median, but

     did not find an African-American woman near the abandoned SUV. When describing his

     observations, the officer testified as follows:




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                     “I didn’t see anybody immediately in the area of the vehicle. There wasn’t

             a long gap of time between when the call came out and when I arrived on scene,

             only a couple of minutes. I looked around in all areas. There was a very open

             area to the west where it would be very easy to see someone walking away. To

             the east there is really only Coventry and Lily Field there, two streets going

             east/west. I could see down Coventry and see nobody down there. On Lily Field

             the only thing I saw was the vehicle that went from park to drive.”

¶5           The officer explained that the vehicle that “went from park to drive” was a blue Chevy

     parked facing east in the westbound lane of Lily Field Lane, with the driver’s side wheels

     positioned adjacent to the curb. When the officer focused his attention on the blue Chevy parked

     in this fashion, he saw the headlights turn on and watched the blue Chevy leave the area. After

     making these observations, Officer Block suspected the blue Chevy may have been involved in

     an accident with the SUV. Consequently, the officer pursued the blue Chevy and performed a

     traffic stop.

¶6           Once the blue Chevy pulled over, Officer Block observed an African-American woman,

     matching the description of the person last seen near the stranded black SUV, seated in the front

     passenger seat. Eventually, Officer Block arrested defendant for operating the black SUV while

     under the influence of alcohol and other traffic offenses.

¶7           The State argued that Officer Block had a reasonable, articulable suspicion to stop the

     blue Chevy. In addition, the State argued reasonable grounds existed for Officer Block’s traffic

     stop of the blue Chevy based on his observation of a traffic violation. When ruling on the

     written motion to suppress, the court found Officer Block’s testimony to be credible, but rejected




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       the State’s argument that the officer’s suspicions would qualify as a reasonable basis to stop the

       blue Chevy in order to investigate the accident involving the black SUV.

¶8            However, the court noted that the officer’s testimony established the officer witnessed the

       driver of the blue Chevy commit a traffic offense, improper lane usage, before making a decision

       to pursue and stop the blue Chevy. According to the court, these observations by the officer

       provided a probable cause basis to stop the driver of the blue Chevy for that violation.

       Therefore, the court found probable cause existed prior to the traffic stop and rendered the stop

       lawful regardless of the officer’s suspicions about the link between the blue Chevy and the

       abandoned black SUV. On this basis, the trial court denied the defense’s motion to suppress

       gathered after the traffic stop of the blue Chevy.

¶9            After this unfavorable ruling, defense counsel requested and received leave to expand the

       scope of his motion to suppress to address the duration of the traffic stop. The defense recalled

       Officer Block who admitted he did not speak to the driver of the blue Chevy about any traffic

       violation. The officer explained he immediately observed that the passenger of the blue Chevy

       matched the description he received from the dispatcher concerning the occupant of the black

       SUV. Officer Block noticed a strong odor of alcohol coming from inside the vehicle.

¶ 10          The officer stated he spoke to the driver of the blue Chevy about whether the driver of the

       blue Chevy may have witnessed the accident involving the black SUV. According to the officer,

       the driver of the blue Chevy responded “he was just driving by, recognized the defendant from a

       previous friendship and that he wanted to help her out because basically she was stuck, and that

       he picked her up, was going to bring her home.” He asked the passenger if the black SUV stuck

       on the median belonged to her. After Officer Block asked the passenger to step out of the blue

       Chevy, he noticed she was barefoot and appeared to be under the influence of alcohol.


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¶ 11          Following this testimony, the defense indicated no further evidence would be presented.

       The State moved for a directed finding on the expanded motion to suppress. The State argued

       Officer Block’s questioning of defendant was justified because his observations of defendant

       were consistent with the dispatch received concerning the woman seen with the black SUV. The

       court allowed the motion for a directed finding and denied defendant’s motion to suppress.

¶ 12           After this ruling, the matter immediately proceeded to a bench trial. The State’s first

       witness was Officer David Henzler of the Bolingbrook police department. Officer Henzler

       testified that on February 17, 2013, at approximately 3 a.m., he was dispatched to the scene of a

       one-car accident. When he arrived at the scene, Officer Henzler observed a black SUV

       straddling the median, with its headlights on and the engine off. According to this officer, the

       driver’s side door to the SUV was ajar and a high-heeled shoe was positioned on the roadway

       approximately one foot outside the open driver’s door. The officer found a matching high-

       heeled shoe on the driver’s side floorboard inside the SUV. He also noticed there were no keys

       in the ignition. Officer Henzler retrieved a Fox Valley park district identification card (ID) from

       the driver’s side door panel bearing the name of Herika Fakayode. Officer Henzler relayed his

       discovery of the two high-heeled shoes to Officer Block.

¶ 13          The State next called Ashley Jordan, who testified that on February 17, 2013, at

       approximately 3 a.m., she was driving home from a casino with her friend, Stephanie Sheehan,

       and Sheehan’s sister, Rachel Ashcraft. The trio noticed a black SUV straddling the median and

       Jordan pulled alongside the vehicle to determine if anyone was injured. While next to the SUV,

       Jordan saw an African-American female, with short, straight, black hair, slumped over in the

       driver’s seat. Jordan also observed all of the doors of the SUV were closed at that time.




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¶ 14          Jordan testified that as she drove away from the black SUV, she noticed the headlights of

       another car behind her. Jordan pulled into the parking lot of a nearby bank and her passenger,

       Rachel Ashcraft, called the police. While in the bank parking lot, Jordan observed the car that

       was behind her stop in a residential area and watched a man leave that vehicle. While Ashcraft

       was on the phone, Jordan turned around and approached the black SUV to read the license plate.

       Jordan parked “just a couple feet away” from the black SUV, at which point she saw the man

       from the second vehicle, an African-American man with dreadlocks past his shoulders, speaking

       to the woman previously slumped over in the driver’s seat. According to Jordan, this

       conversation occurred while the driver’s side door of the SUV was open. Jordan testified she

       observed the woman move over into the passenger seat of the black SUV after the man entered

       the driver’s side of the SUV.

¶ 15          The State called Officer Block, who testified that once he stopped the blue Chevy, he

       approached the driver’s side window and detected a strong odor of alcohol emanating from the

       vehicle. He also noticed the passenger’s eyes were bloodshot and glassy. Officer Block also

       observed the passenger to be disoriented and swaying heavily in her seat. In court, Officer Block

       identified defendant as the person seated in the passenger seat of the blue Chevy.

¶ 16          According to Officer Block, when he asked defendant to produce her driver’s license,

       defendant stated she “left it in the vehicle.” At that point, Officer Block requested defendant to

       step out of the blue Chevy so that he could speak to her separately from the driver. The officer

       observed defendant hold onto the door of the blue Chevy for balance. He also noted she was not

       wearing any shoes and had a strong odor of alcohol coming from her breath. According to

       Officer Block, defendant nearly fell down multiple times while conversing with him. Defendant

       did not answer Officer Block when he asked if she had been driving the black SUV. When the


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       officer asked her to explain how the black SUV became stuck on the median, defendant replied,

       “if [you] say it’s stuck, it must be stuck.” Based on his observations, Officer Block opined

       defendant was under the influence of alcohol.

¶ 17          Officer John Tuttle of the Bolingbrook police department also testified for the State.

       Officer Tuttle testified he drove to the location of the traffic stop to assist Officer Block. When

       Officer Tuttle approached the passenger side of the blue Chevy, he noticed defendant was not

       wearing shoes and did not see any shoes on the passenger floorboard. He testified that once

       defendant stepped out of the blue Chevy she stated she did not know where her shoes were.

       Officer Tuttle also concluded defendant was under the influence of alcohol.

¶ 18          Following closing arguments, the court found defendant guilty of the offenses of DUI,

       illegal lane usage, and failure to notify. The court found defendant not guilty of the offense of

       failure to reduce speed. With respect to the offense of driving under the influence of alcohol, the

       court acknowledged that the State presented a strong circumstantial case and listed the

       circumstantial evidence that the court found established defendant had been operating the black

       SUV while under the influence of alcohol. The court commented that the “only discrepancy” in

       the testimony concerned the defendant’s hairstyle, but the court noted that “individual hairstyles

       can be described in different ways by different people.” Further, the court acknowledged that

       Jordan did not observe “any other specifics” concerning a description of the individual she

       observed in the black SUV.

¶ 19                                               ANALYSIS

¶ 20          First, defendant contends the trial court improperly denied her pretrial motion to

       suppress. In addition, defendant also claims her conviction for DUI must be reversed because




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       the State’s evidence failed to prove beyond a reasonable doubt she was in actual control of the

       vehicle. Defendant appeals only the court’s finding of guilt with respect to the DUI conviction.

¶ 21          The State contends the motion to suppress was properly denied because Officer Block

       had both an articulable basis, as well as probable cause, to effectuate a traffic stop. Further, the

       State maintains the evidence was sufficient to prove the offense of DUI and establish defendant

       was in control of the black SUV beyond a reasonable doubt.

¶ 22                          I. Motion to Quash Arrest and Suppress Evidence

¶ 23          We first address defendant’s argument that the trial court erroneously found probable

       cause existed based on the driver’s improper lane usage. 1 Thereafter, we will consider the

       defense’s expanded argument claiming the officer unreasonably prolonged the lawful, initial

       traffic stop by questioning defendant, a passenger, about a recent accident involving another

       vehicle.

¶ 24          Both the federal and state constitutions protect citizens from unreasonable searches and

       seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. It is well established that the

       propriety of a traffic stop is subject to the fourth amendment’s reasonableness requirement.

       Whren v. United States, 517 U.S. 806, 810 (1996). “As a general matter, the decision to stop an

       automobile is reasonable where the police have probable cause to believe that a traffic violation

       has occurred.” Id.

¶ 25          When reviewing a ruling on a motion to suppress evidence, this court applies a two-part

       standard of review. People v. Cummings, 2014 IL 115769, ¶ 13. Findings of fact made by the

       trial court are reviewed for clear error and only reversed if they are against the manifest weight

              1
                 Defendant also requests this court to revisit whether the officer’s suspicions gave rise to
       an articulable suspicion for the traffic stop. The trial court resolved this issue in favor of the
       defense and we elect not to address this ruling since we are affirming the trial court’s finding the
       traffic stop was supported by probable cause.
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       of the evidence. Id. However, the ultimate decision of whether or not suppression is warranted

       is a question of law that is reviewed de novo. People v. Harris, 228 Ill. 2d 222, 230 (2008).

¶ 26          Here, the court found Officer Block’s testimony credible and determined Officer Block

       witnessed the driver of the blue Chevy commit a traffic offense, improper lane usage, before the

       officer decided to stop the blue Chevy as part of his ongoing investigation of the stranded black

       SUV. Significantly, defendant does not challenge the trial court’s finding that the driver of the

       blue Chevy committed a traffic violation prior to being pulled over by Officer Block.

¶ 27          In this case, the trial court ruled that the officer’s suspicion was insufficient to justify the

       decision to stop and investigate the driver of the blue Chevy. However, based on the officer’s

       credible testimony, the trial court went on to carefully examine the facts known to the officer

       before electing to stop the blue Chevy. After objectively considering the facts known to the

       officer, the court concluded the traffic offense witnessed by the officer gave rise to probable

       cause to stop the driver of the blue Chevy. On this basis, the court independently concluded the

       traffic stop of the blue Chevy was lawful.

¶ 28            The defense argues the officer’s stated, but insufficient, purpose for stopping the driver

       of the blue Chevy dictates the outcome of this appeal. We reject defendant’s contention.

       Existing case law provides that the trial court may determine the constitutional reasonableness of

       a traffic stop and the court’s determination does not necessarily depend upon the officer’s

       admitted motivation for initiating a traffic stop. Whren, 517 U.S. at 813 (“Subjective intentions

       play no role in ordinary, probable-cause Fourth Amendment analysis.”). Consequently, based on

       this well-accepted case law, we conclude the trial court correctly examined the facts established

       by the officer’s testimony and determined, as a matter of law, that probable cause existed prior to

       the stop regardless of the officer’s articulated reason for conducting the traffic stop.


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¶ 29          It is clear from this record that the officer reacted quickly to prevent the blue Chevy from

       driving away from the area near the accident scene involving the black SUV. We would be

       remiss if we did not note that, even with the benefit of hindsight, the officer did not attempt to

       embellish his reason for quickly pursuing the blue Chevy in order to justify the stop on grounds

       other than his suspicions based on his police experience. Our holding does not penalize the

       government for the good-faith actions of this officer who, acting under exigent circumstances,

       truthfully reported his main objective for stopping the blue Chevy was to investigate whether that

       driver had information about the black SUV.

¶ 30          The lawfulness of a traffic stop, when challenged by a motion to quash an arrest or

       suppress evidence, must be measured by the trial judge rather than dictated by the officer’s

       reasoning formulated under exigent circumstances. Here, the trial court found the traffic stop was

       lawful since the officer first observed a traffic violation before initiating the stop. We note

       defendant does not contest the court’s finding that the driver of the blue Chevy committed

       improper lane usage or argue the court’s factual determination was contrary to the weight of the

       evidence. Therefore, based on this record, we conclude the trial court properly denied

       defendant’s motion to suppress.

¶ 31          Next, we consider defendant’s contention that Officer Block unlawfully prolonged the

       duration of the stop when he changed his focus from the driver to defendant, a passenger of the

       blue Chevy. In support of this argument, defendant relies on case law indicating that when a

       stop is unduly prolonged, the initial lawful traffic stop may “become unlawful.” Illinois v.

       Caballes, 543 U.S. 405, 407 (2005). The defense seems to imply the officer did not develop a

       reasonable, articulable suspicion to question defendant, a passenger, about the stranded black

       SUV. We disagree.


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¶ 32           Significantly, the case law provides that “the police may ask questions unrelated to the

       original detention and are not required to form an independent reasonable suspicion of criminal

       activity before doing so.” Harris, 228 Ill. 2d at 242-43. Immediately after stopping the blue

       Chevy, the driver told the officer the driver found defendant “stuck” and offered her a ride home.

       Within moments, the officer realized the intoxicated, African-American woman seated in the

       passenger seat of the blue Chevy matched a bystander’s description of the person she observed

       slumped over the steering wheel of the black SUV.

¶ 33           Contrary to defendant’s position on appeal, the decision in Cummings does not support

       defendant’s argument that Officer Block impermissibly extended the duration of this traffic stop

       when he abandoned his suspicions of the driver and turned his attention to defendant. The facts

       in Cummings are distinguishable, since the officer in that case did not observe any traffic

       violation prior to that traffic stop, unlike the case at bar.

¶ 34           In this case, defendant did not offer any testimony to the court establishing the amount of

       time for this particular traffic stop. Absent evidence from the defense allowing us to determine

       how much time elapsed during the traffic stop, we will not speculate concerning the length of

       time this traffic stop consumed. Therefore, we conclude the trial court properly allowed the

       State’s request for a directed finding.

¶ 35           Further, defendant’s reliance on Caballes to support the view that this stop was prolonged

       is misplaced. We note that in Caballes, the court held the traffic stop did not extend beyond a

       reasonable amount of time necessary to complete an ordinary traffic investigation of the driver

       when the police also investigated suspected drug activity that was unrelated to the traffic offense

       supporting the stop itself.




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¶ 36          Based on existing case law, we conclude the trial court properly allowed the State’s

       motion for a directed finding pertaining both to the existence of probable cause and the duration

       of this particular traffic stop. The trial court’s decision to deny the motion to suppress is

       affirmed.

¶ 37                                 II. Sufficiency of the Evidence at Trial

¶ 38          Next, defendant argues the State’s evidence failed to establish a necessary element of the

       offense of DUI. Specifically, defendant claims the State did not prove she was in actual physical

       control of the black SUV at the time of the purported accident. Curiously, defendant does not

       challenge the trial court’s findings that she was the driver of the black SUV upon a highway for

       purposes of her other convictions for improper lane usage (625 ILCS 5/11-709(a) (West 2012))

       and failure to notify authorities of an accident (625 ILCS 5/11-406(a) (West 2012)).

¶ 39          This court reviews a challenge to the sufficiency of the evidence to determine whether

       any rational trier of fact could have found the essential elements of the crime beyond a

       reasonable doubt. People v. Baskerville, 2012 IL 111056, ¶ 31. When making this

       determination, we review the evidence in the light most favorable to the prosecution. Id. All

       reasonable inferences from the record in favor of the prosecution will be allowed. People v.

       Bush, 214 Ill. 2d 318, 326 (2005). Circumstantial evidence is sufficient to sustain a conviction,

       provided the elements of the crime have been proven beyond a reasonable doubt. People v.

       Sutherland, 223 Ill. 2d 187, 242-43 (2006).

¶ 40          In this case, defendant was charged with driving under the influence of alcohol, in

       violation of section 11-501(a)(2) of the Vehicle Code. Section 11-501(a)(2) dictates that “[a]

       person shall not drive or be in actual physical control of any vehicle within this State while: ***

       (2) under the influence of alcohol.” 625 ILCS 5/11-501(a)(2) (West 2012).


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¶ 41          In support of her argument that the State failed to prove she was in actual control of the

       black SUV for purposes of the DUI, defendant points out that she did not admit she was the

       driver of that vehicle and the SUV’s keys were not located in defendant’s possession. However,

       Jordan’s testimony established an African-American woman with short, straight hair was “with”

       the black SUV. Defendant puts great emphasis on the fact that she has curly hair, contradicting

       the testimony provided by Jordan.

¶ 42          The trial court explicitly considered this discrepancy between Jordan’s testimony and

       Officer’s Block’s testimony about the woman’s hairstyle and found the divergent descriptions to

       be attributable to equally plausible perceptions of the same hairstyle by two different observers.

       This issue was resolved by the trier of fact, who was in a superior position to evaluate the

       credibility of the witnesses and we will not disturb this finding.

¶ 43          With respect to her identification as the driver of the black SUV, defendant ignores

       Officer Henzler’s testimony about the shoes left in and near the black SUV. Defendant also

       ignores Officer Tuttle’s testimony that defendant was barefoot and admitted she did not know

       where her shoes were located when she stepped out of the blue Chevy. These circumstances

       provide compelling evidence which support the court’s determination that defendant was the

       driver of the black SUV when the black SUV became stranded on the median.

¶ 44          This circumstantial evidence supports the finding that defendant was in actual, physical

       control of the black SUV before the driver of the blue Chevy picked her up and offered her a ride

       home. We also note that defendant has not challenged the court’s finding that she was operating

       the black SUV for purposes of her convictions for improper lane usage and failure to notify

       authorities of an accident. For the reasons set forth above, we conclude the State’s evidence was

       sufficient to establish defendant’s guilt for the offense of DUI beyond a reasonable doubt.


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¶ 45                                    CONCLUSION

¶ 46   The judgment of the circuit court of Will County is affirmed.

¶ 47   Affirmed.




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