                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Clements, 2012 IL App (3d) 110213




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v.
Caption                     JASON W. CLEMENTS, Defendant-Appellee.



District & No.              Third District
                            Docket Nos. 3-11-0213, 3-11-0407 cons.


Filed                       September 5, 2012


Held                        Defendant was not seized when, as he approached a roadside safety
(Note: This syllabus        checkpoint at a high rate of speed, an officer waved his flashlight at
constitutes no part of      defendant and shouted at him to slow down and defendant pulled over
the opinion of the court    and parked his car, even though he was not one of the “every third
but has been prepared       vehicles” intended to be stopped, and he remained at the checkpoint
by the Reporter of          several minutes until the officer approached his car and made
Decisions for the           observations that led to his DUI arrest, the circumstances of the case gave
convenience of the          the officer an articulable basis to direct defendant to slow down, the
reader.)
                            resulting stop was valid in view of defendant’s traffic violation, and the
                            grant of defendant’s petition to rescind the summary suspension of his
                            license and his motion to suppress evidence was reversed.


Decision Under              Appeal from the Circuit Court of Whiteside County, Nos. 10-MR-96, 10-
Review                      DT-221; the Hon. William S. McNeal, Judge, presiding.



Judgment                    Reversed and remanded.
Counsel on                 Gary L. Spencer, State’s Attorney, of Morrison (Terry A. Mertel and
Appeal                     Thomas D. Arado, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.

                           Daniel A. Huffman, of Nelson Kilgus Richey Huffman & Buckwalter-
                           Schurman, of Morrison, for appellee.


Panel                      JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                           Justice Carter concurred in the judgment and opinion.
                           Justice McDade dissented, with opinion.



                                             OPINION

¶1          On October 31, 2010, defendant, Jason W. Clements, stopped his vehicle at a roadside
        safety checkpoint, and several minutes later an officer approached defendant’s parked car.
        Based on the officer’s observations, including a preliminary breath test and defendant’s
        admission to the officer he had consumed alcohol, defendant was arrested for driving under
        the influence (DUI) in violation of sections 11-501(a)(1) and 11-501(a)(2) of the Illinois
        Vehicle Code (the Code), and issued a notice of statutory summary suspension. 625 ILCS
        5/11-501(a)(1), (a)(2), 11-501.1 (West 2010). The trial court granted defendant’s petition to
        rescind the statutory summary suspension of his driver’s license (625 ILCS 5/2-118.1(b)
        (West 2010)) and defendant’s motion to suppress evidence. The State appeals. We reverse
        and remand.

¶2                                             FACTS
¶3           On October 31, 2010, defendant stopped his vehicle within the boundaries of a
        checkpoint, conducted by the Illinois State Police, after trooper Vaughn Rhodes shouted at
        defendant to slow down. Three to five minutes later, defendant’s vehicle remained parked
        at the checkpoint, and Rhodes approached defendant’s vehicle after he finished processing
        another vehicle. While speaking with defendant, the officer noticed the odor of alcohol and
        defendant admitted consuming alcohol. A preliminary breath test revealed defendant’s blood
        alcohol content was 0.175. The officer subsequently arrested defendant for DUI in violation
        of sections 11-501(a)(1) and 11-501(a)(2), and issued a notice of statutory summary
        suspension. 625 ILCS 5/11-501(a)(1), (a)(2), 11-501.1 (West 2010).
¶4           On January 18, 2011, the court conducted a hearing on defendant’s petition to rescind the
        statutory summary suspension. At the summary suspension hearing, Rhodes testified that on
        October 31, 2010, he was assigned to assist at a checkpoint located on Illinois Route 30, a
        two-lane highway for eastbound and westbound traffic. According to the officer, the


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       established protocol for the checkpoint required the officers to stop every third vehicle
       approaching the location from either direction of travel. Rhodes testified there were between
       six and eight uniformed State Police troopers working at the checkpoint that night.
       According to Rhodes, at least two of the police vehicles had their overhead oscillating lights
       activated and there were posted signs alerting oncoming motorists of the approaching
       checkpoint.
¶5          Rhodes testified that at approximately 3:22 a.m. on October 31, 2010, he was on the side
       of the road, speaking to the driver of another stopped vehicle, when defendant’s vehicle
       approached the checkpoint at a high rate of speed. Concerned, Rhodes turned away from the
       driver he was speaking to, faced the roadway, waved his flashlight, and shouted at defendant
       to slow down. Rather than simply reducing his speed, defendant pulled over and parked his
       vehicle. Defendant was not the third oncoming car approaching the checkpoint.
¶6          Rhodes observed defendant’s car remained parked at the checkpoint for three to five
       minutes while Rhodes finished processing the other motorist. Consequently, Rhodes
       approached defendant’s vehicle, which remained parked within the boundaries of the
       checkpoint, and Rhodes made certain observations which resulted in defendant’s arrest for
       DUI.
¶7          Defendant argued to the trial court that the traffic stop violated his fourth amendment
       rights. Defendant claimed his rights were violated because his vehicle was not the third
       vehicle and he did not commit a traffic violation prior to stopping at the checkpoint.
¶8          The trial court found Rhodes acted properly and did not have a subjective intent to stop
       defendant’s vehicle. However, the court found defendant was seized because a reasonable
       person would not have felt free to travel through the checkpoint, without stopping, based on
       Rhodes’s conduct. Thus, the trial court ordered the rescission of defendant’s summary
       suspension. On February 10, 2011, the State filed a motion to reconsider, which the trial
       court denied.
¶9          On May 19, 2011, defendant filed a motion to suppress evidence. The next day, the court
       conducted a hearing on the motion. At the hearing, Rhodes testified he did not know exactly
       how fast defendant was traveling through the checkpoint or whether defendant’s speed was
       over the posted speed limit. Nonetheless, presumably based on the road conditions present
       at the checkpoint, the officer concluded defendant’s rate of speed was too fast and verbally
       directed him to slow down.
¶ 10        After hearing the evidence, the trial court allowed defendant’s motion to suppress. The
       trial court found a seizure occurred for fourth amendment purposes because a reasonable
       person in defendant’s position would not have felt free to leave. Furthermore, the court
       determined the encounter was improper because defendant was not traveling in a vehicle
       which should have been selected for a random inspection according to the established
       checkpoint procedures, nor did the officer have reasonable suspicion of a criminal activity
       before he approached and spoke to defendant at the scene. The State appeals.

¶ 11                                      ANALYSIS
¶ 12      The State contends the trial court erred by granting both defendant’s petition to rescind

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       the summary suspension and his motion to suppress. The State’s arguments regarding both
       the petition and motion are similar. Specifically, the State argues defendant’s encounter with
       Rhodes was consensual and does not qualify as a seizure because defendant voluntarily
       stopped his vehicle within the checkpoint. Alternatively, the State argues even if defendant
       was seized, Rhodes had reasonable suspicion to stop the vehicle because Rhodes observed
       defendant traveling at a high rate of speed through a checkpoint. Furthermore, the State
       contends the seizure was reasonable because Rhodes was acting in a community caretaker
       capacity when he approached defendant’s vehicle.
¶ 13       A de novo standard of review applies to the ultimate determination of whether the
       petition to rescind the statutory summary suspension or motion to suppress should have been
       granted, but we will defer to the trial court’s findings of fact, unless they are against the
       manifest weight of the evidence. People v. Wear, 229 Ill. 2d 545 (2008); People v.
       Luedemann, 222 Ill. 2d 530 (2006). We first address the issue of whether defendant was
       seized as a result of Officer Rhodes’s conduct. Then, assuming arguendo defendant was
       seized, we will consider whether the officer had a reasonable suspicion of criminal activity
       that would justify stopping defendant’s vehicle.

¶ 14                              I. Whether Defendant Was Seized
¶ 15        The fourth amendment of the United States Constitution and article I, section 6, of the
       Illinois Constitution guarantee citizens the right to be free from unreasonable searches and
       seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. An individual “may not be
       lawfully seized without reasonable, objective grounds to support the seizure.” People v.
       Davenport, 392 Ill. App. 3d 19, 27 (2009).
¶ 16        To determine whether the interaction between a law enforcement officer and a motorist
       qualifies as a seizure for fourth amendment purposes, we must objectively consider whether,
       in light of the circumstances surrounding the incident, a reasonable, innocent person would
       have felt free to decline the officer’s requests or would have felt free to terminate the
       encounter. United States v. Mendenhall, 446 U.S. 544 (1980); Luedemann, 222 Ill. 2d 530.
       After the officer requests a motorist to stop, certain factors that may be considered to
       determine whether a seizure occurred include: (1) the threatening presence of several police
       officers; (2) an officer’s display of a weapon; (3) physical touching of an individual by an
       officer; and (4) use of language or tone indicating compliance with some directive was
       compelled. Id.
¶ 17        We emphasize that the first objective, but threshold, requirement is whether an officer
       made a request for a motorist to stop, or whether the driver presented sufficient evidence
       conclusively establishing he involuntarily stopped based on his perception of the officer’s
       actions. Neither circumstance was presented by the evidence submitted to the trial court in
       support of either defendant’s petition to rescind the statutory summary suspension or
       defendant’s motion to suppress.
¶ 18        As noted by the dissent, the trial court’s findings are critically important in this case.
       Here, the court did not make a finding that defendant involuntarily stopped his vehicle that
       night. Instead, the trial court specifically found Rhodes did not intend to stop defendant’s

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       vehicle. This finding is supported by the record and is not challenged on appeal. It is clear
       from Rhodes’s undisputed testimony that the officer merely gestured with his flashlight and
       shouted “slow down.” Rhodes never ordered defendant to stop. Furthermore, according to
       the evidence presented by the defense, no other officer pursued defendant or directed him to
       stop.
¶ 19        The precise reason defendant stopped his vehicle and remained at the checkpoint is
       unknown because defendant did not testify during the hearing on either the petition to revoke
       the statutory summary suspension or the motion to suppress. Without defendant’s testimony
       indicating he first observed Officer Rhodes gesture with a flashlight and then felt compelled
       to stop, the record does not support an inference that defendant involuntarily stopped his
       vehicle based on police conduct. The facts presented to the trial court support multiple,
       equally plausible inferences that defendant did not notice Officer Rhodes but may have
       voluntarily stopped out of an abundance of caution or confusion or due to other difficulties.
¶ 20        The burden is on defendant to establish a prima facie case for rescission of a summary
       suspension. People v. Orth, 124 Ill. 2d 326, 336 (1988). Defendant alleged the police did not
       have authority to stop his vehicle. Here, the court unequivocally found this officer did not
       intend to stop defendant’s vehicle, and defendant did not present testimony establishing he
       involuntarily stopped his vehicle within the roadblock. Thus, it matters not whether this
       defendant or some other reasonable person might have remained within the roadblock after
       voluntarily stopping his vehicle. Defendant’s testimony regarding his thought process likely
       would have helped explain why a reasonable person in defendant’s position would not have
       felt free to leave. See People v. Brownlee, 186 Ill. 2d 501, 519 (1999) (stating that, while the
       test to determine whether a seizure occurred is an objective one, a driver’s subjective reaction
       can be important in assessing the Mendenhall factors).
¶ 21        Without some evidence Rhodes intended to detain defendant or some evidence that
       defendant actually perceived Rhodes’s actions required defendant to stop, we conclude an
       investigatory stop did not occur in this case. Moreover, defendant did not contest his
       detention for purposes of the DUI investigation once the officer approached defendant
       several minutes later, after defendant stopped within the boundaries of the roadblock.
       Accordingly, we hold defendant was not seized.

¶ 22          II. Whether Rhodes Had a Reasonable Suspicion of Criminal Activity
¶ 23        A valid investigatory stop occurs when the officer creating the seizure had a reasonable
       suspicion, based upon specific and articulable facts, of criminal activity to justify the stop
       at issue. Terry v. Ohio, 392 U.S. 1 (1968); People v. Greco, 336 Ill. App. 3d 253 (2003).
       Generally, a traffic violation provides a sufficient basis for a traffic stop. People v. Rotkvich,
       256 Ill. App. 3d 124 (1993). A seizure does not violate the fourth amendment unless the
       seizure was unreasonable. People v. Bartley, 109 Ill. 2d 273 (1985).
¶ 24        While the trial court found Rhodes did not subjectively intend to stop defendant at the
       checkpoint, had Rhodes intended to stop defendant, the record reveals Rhodes would have
       had an ample basis to formulate an intention to stop defendant and require him to remain at
       the checkpoint based on the officer’s observations of a violation of section 11-907 of the

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       Code. 625 ILCS 5/11-907(c)(2) (West 2010). The record reveals there were multiple squad
       cars parked at the checkpoint, some with activated oscillating lights, and at least one other
       motorist located on the side of the roadway with Rhodes standing nearby. Under these
       circumstances, the Code requires a driver, such as defendant in this case, to slow down,
       proceed with caution, and then maintain a safe speed for the road conditions present when
       approaching a stationary emergency vehicle, such as those present on the roadway on the
       night of defendant’s arrest. 625 ILCS 5/11-907(c)(2) (West 2010). Obviously, Rhodes’s
       belief defendant was driving too fast was not based on the posted speed limit, but rather, this
       belief was related to valid safety considerations resulting from the presence of multiple
       emergency vehicles and other traffic conditions on the roadway due to the checkpoint itself.
¶ 25       After observing defendant approach the checkpoint at an unsafe speed, we conclude
       Rhodes had an articulable basis to direct the car to slow down, which we will assume, for
       purposes of this appeal, caused defendant to stop. Therefore, even if we assume Rhodes
       intended to stop defendant, which is contrary to the court’s finding, the detention constituted
       a valid traffic stop based on the traffic violation Rhodes witnessed before shouting at
       defendant to slow down.
¶ 26       Since this issue is dispositive, it becomes unnecessary to address the State’s argument
       Rhodes was acting in a community caretaker capacity when he approached a driver who
       stopped at the roadblock without being directed to do so. Accordingly, we reverse the trial
       court’s grant of defendant’s petition to rescind and motion to suppress, and we remand the
       cause for further proceedings.

¶ 27                                    CONCLUSION
¶ 28       For the foregoing reasons, the judgment of the trial court of Whiteside County is
       reversed, and the cause is remanded for further proceedings.

¶ 29      Reversed and remanded.

¶ 30       JUSTICE McDADE, dissenting.
¶ 31       The majority has reversed and remanded the decision of the circuit court of Whiteside
       County suppressing evidence gained from defendant, Jason Clements, after he pulled off the
       road during a roadside safety check and rescinding his statutory summary suspension. For
       the reasons that follow, I respectfully dissent.
¶ 32       At the heart of this appeal is whether Clements was seized and, if so, whether evidence
       acquired during this seizure was properly suppressed and his summary suspension was
       properly rescinded.
¶ 33       In determining whether a seizure has occurred, we focus on the perceptions and beliefs
       of the person seized, but not in a subjective way. Our test is an objective one: would a
       reasonable person in the Defendant’s situation believe he had been stopped and was not free
       to leave? United States v. Mendenhall, 446 U.S. 544, 554 (1980). The majority correctly
       points out the four Mendenhall factors indicating a seizure: (1) the threatening presence of

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       several officers; (2) the display of a weapon by an officer; (3) some physical touching of the
       person; or (4) using language or tone of voice compelling the individual to comply with the
       officer’s requests. Mendenhall, 446 U.S. at 554; People v. Luedemann, 222 Ill. 2d 530, 553
       (2006) (adopting Mendenhall standard).
¶ 34       While the events in this case are unusual, I do believe the facts, when analyzed in
       conjunction with the Mendenhall factors, establish that a reasonable person in the
       defendant’s situation would have felt he had been stopped and was not free to leave. My
       belief draws support from the deferential portion of our standard of review. Our standard of
       review on appeals from rulings on motions to suppress is a dual one. We test the trial court’s
       findings of fact to determine if they are against the manifest weight of the evidence. If they
       are not, we defer to those findings. Luedemann, 222 Ill. 2d at 542. Our review of the trial
       court’s conclusions of law is de novo. Luedemann, 222 Ill. 2d at 542.
¶ 35       The trial court’s findings of fact are critically important to my dissent. The only record
       we have of the January 18, 2011, hearing on the defendant’s petition to rescind the statutory
       summary suspension is a bystander’s report certified by the court. It reported that the court
       had found that
           “while Trooper Rhodes had not intended to stop the Appellee’s vehicle, a reasonable
           person in the Appellee’s position would not have felt free to leave. Therefore, the trial
           Court ruled that the Appellee had been seized, and the Petition to Rescind Statutory
           Summary Suspension was allowed.”
¶ 36       The findings of fact and law issued by the court following the May 19, 2011, hearing on
       the motion to suppress were actually reduced to an order and were more specific. The court
       found:
               “1. That on October 31, 2010, the Illinois State Police conducted a roadside safety
           check on U.S. Route 30 and Dakin Road in Whiteside County, Illinois.
               2. Said roadside safety check was conducted with at least 6-8 Illinois State Troopers
           all wearing their police uniforms and accompanying sidearms. Additionally, 6-8 State
           Police vehicles were present at the checkpoint, many of them with lights and flashers
           engaged.
               3. At approximately 2:33 a.m., Trooper Vaughn Rhodes of the Illinois State Police
           was engaged in the stop of a vehicle other than that of the Defendant.
               4. While engaged with said vehicle, Trooper Rhodes gestured to the Defendant’s
           vehicle in a manner which a reasonable person would have believed to stop at said safety
           check.
               5. Trooper Rhodes acknowledged that the Defendant’s vehicle was not the ‘next third
           car’ to be stopped as prescribed by regulations promulgated by the State Police
           Supervisor prior to the commencement of the roadside safety check and that said
           regulations had not been changed by the Supervisor prior to the stop of the Defendant’s
           vehicle.
               6. Trooper Rhodes further testified that he had no knowledge of this roadside safety
           check being published in any local newspaper prior to October 31, 2010, and no other


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           evidence was introduced of any publication.”
¶ 37       In making its rulings, the trial court drew what I believe to be a completely reasonable
       inference that, but for the existence of the safety checkpoint, the actions of Trooper Rhodes
       and the show of police force and authority represented by the number and appearance of the
       troopers and official vehicles at the checkpoint, defendant would neither have pulled off the
       road and stopped within the checkpoint area nor stayed in his vehicle waiting for Rhodes to
       come and speak with him.
¶ 38       The trial court also found, based on the facts and reasonable inferences drawn from those
       facts, that there was no articulable reason for the stop. Clements’s car was not the “next third
       car” to be stopped in the execution of the checkpoint’s protocols; nor–since Rhodes did not
       intend to stop Clements but merely to suggest that he reduce his speed and since Rhodes
       testified that he had no idea of Clements’s actual speed–was he stopped because he was
       suspected of violating the law. I acknowledge that Clements could have been driving too fast
       for conditions–presumably the existence of the checkpoint–but Rhodes’s lack of intent to
       stop him suggests caution rather than alarm.1 Moreover, I note that there is no objective
       evidence–such as radar detection–that would indicate that defendant was either exceeding
       the posted speed limit or driving too fast for conditions.
¶ 39       The trial court’s factual findings are not against the manifest weight of the evidence.
       Indeed, they mirror the testimony of the State Police trooper who was the only witness at
       both hearings. While the majority emphasizes the lack of defendant’s testimony, this has, in
       my opinion, no bearing on the issue before us due to the fact that the pertinent test is an
       objective, rather than subjective, one. The trial court found that “Trooper Rhodes gestured
       to the defendant’s vehicle in a manner which a reasonable person would have believed to
       stop at said safety check.” Rhodes had testified he felt defendant was driving too fast. It is
       a reasonable inference that defendant did not intend to stop but did so because of Rhodes’s
       gesture and shout. In addition, the conclusion reached by the trial court that no reasonable
       person in the defendant’s circumstances would have felt free to leave flows logically from
       the facts.
¶ 40       The facts are bizarre, but I believe the trial court reached a conclusion on those facts that
       is consistent with existing case law and that its decision should be affirmed.




               1
                I am, of course, assuming that the existence of the checkpoint regulations would not
       preclude the police from stopping someone, not the next third person, who was actually violating the
       law.

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