                                         2017 IL App (3d) 150879

                               Opinion filed February 22, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2017

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                      )       Will County, Illinois,
            Plaintiff-Appellant,                      )
                                                      )       Appeal No. 3-15-0879
            v.                                        )       Circuit Nos. 15-DT-186, 15-TR-9913
                                                      )
     THOMAS J. WILLIAMS,                              )       Honorable
                                                      )       Kenneth L. Zelazo,
            Defendant-Appellee.                       )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          The State appeals from an order granting defendant’s motion to quash his arrest for

     driving under the influence of alcohol (DUI) by a Lockport police officer, acting within his

     jurisdiction, after an off-duty Palos Hills police officer placed defendant in custody for improper

     lane usage. During the hearing on the motion to quash arrest and suppress evidence, the off-duty

     Palos Hills police officer testified that he witnessed defendant driving erratically outside the

     officer’s jurisdiction and stopped defendant for improper lane usage. However, since the off-duty

     Palos Hills police officer initially measured defendant’s speed with a radar gun before witnessing

     the improper lane violation, the court quashed defendant’s arrest for DUI as a product of the
     invalid citizen’s arrest by the off-duty Palos Hills police officer. We reverse and remand for

     further proceedings.

¶2                                                  FACTS

¶3              On February 7, 2015, an on-duty Lockport police officer conducted an independent

     investigation of a complaint concerning defendant’s erratic driving and improper lane usage in

     that jurisdiction. Defendant, Thomas Williams, received citations from the Lockport police

     officer for two counts of DUI (625 ILCS 5/11-501(a) (West 2014)) in case No. 15-DT-186 and

     one count of speeding (625 ILCS 5/11-601(b) (West 2014)) in case No. 15-TR-9913. 1

¶4              On April 14, 2015, defendant filed a motion to quash his arrest in case No. 15-DT-186. In

     his motion, defendant argued that the off-duty Palos Hills police officer, who initially stopped

     him, did not have the jurisdictional authority to place him in custody while waiting for the

     Lockport police officer to arrive.

¶5              On August 12, 2015, the court held a hearing on defendant’s motion to quash. The off-

     duty Palos Hills police officer testified that he was driving southbound on MacGregor Road

     coming from 151st Street in Lockport, Illinois, at approximately 3:00 a.m. on February 7, 2015.

     The off-duty Palos Hills police officer advised the court that he had ten years experience as an

     officer.

¶6              According to the off-duty Palos Hills police officer, he was heading to his home in

     Lockport, Illinois, that morning after his shift ended with the Palo Hills police department. The

     officer was driving an unmarked police car that contained a radar gun and Mars lights. He was

     wearing a full police uniform and was armed with a firearm.



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             Defendant did not file a motion to quash his arrest in case No. 15-TR-9913. However, the State
     concedes it must dismiss defendant’s speeding ticket because the officer who observed defendant
     speeding used powers of his office that are unavailable to ordinary citizens to obtain this evidence.


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¶7            While driving southbound on MacGregor Road, a two-way residential street, the off-duty

       Palos Hills police officer encountered an oncoming vehicle that he could see was speeding above

       the posted 25 miles per hour speed limit. According to the off-duty Palos Hills police officer, the

       vehicle, later determined to be driven by defendant, was rapidly closing the distance between

       defendant’s vehicle and the unmarked squad car.

¶8            The off-duty Palos Hills police officer testified that after visually determining defendant

       was speeding, he glanced at his dash-mounted radar system that he had not turned off at the end

       of his shift. According to the officer, the radar system measured defendant’s speed at 60 miles

       per hour in the posted 25 miles per hour zone.

¶9            As the two vehicles approached and then passed each other traveling in opposite

       directions, defendant’s vehicle veered into the oncoming lane of traffic. The off-duty Palos Hills

       police officer swerved off the road to avoid colliding with defendant’s vehicle. After this evasive

       maneuver, the off-duty Palos Hills police officer called 911 on his personal cellular phone to

       report the reckless driver.

¶ 10          After reporting the incident, the off-duty Palos Hills police officer made a U-turn and

       maintained sight of defendant’s vehicle. The off-duty Palos Hills police officer relayed this

       information about the direction of travel of defendant’s vehicle to the dispatcher by using his

       personal cellular phone as he followed defendant’s vehicle.

¶ 11          Shortly thereafter, defendant parked his vehicle in a driveway on Reef Road. Again, the

       off-duty Palos Hills police officer provided the dispatcher with updated information about where

       defendant stopped.

¶ 12          After parking his squad car on the street, the off-duty Palos Hills police officer began

       walking towards the driveway. The officer testified that he saw defendant leave defendant’s




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       vehicle and begin walking towards the home at that address. The off-duty Palos Hills police

       officer initiated a conversation with defendant by telling defendant he almost struck the officer’s

       vehicle on MacGregor Road.

¶ 13          The officer asked defendant if he lived at that address. Defendant said it was a friend’s

       house and he did not live there. At some point during the conversation, the officer told defendant

       he was an off-duty police officer and was on his way home. The off-duty Palos Hills police

       officer asked defendant if he had a driver’s license and told defendant not to go anywhere until

       the Lockport police officer arrived.

¶ 14          According to the off-duty Palos Hills police officer, defendant was very cooperative.

       When asked if defendant had been drinking, defendant replied he had been consuming alcohol at

       Paradise Bay. The off-duty Palos Hills police officer and defendant waited together at the base of

       the driveway until the Lockport police officer arrived. The off-duty Palos Hills police officer did

       not perform any type of sobriety test on defendant.

¶ 15          The Lockport police officer arrived about ten minutes after the first 911 call. The off-duty

       Palos Hills police officer spoke to the Lockport police officer and described his observations of

       defendant’s erratic driving. Subsequently, the Lockport police officer performed sobriety tests on

       defendant, placed defendant under arrest for DUI, and issued defendant three traffic citations.

       The Lockport police officer completed a sworn report providing the grounds for defendant’s DUI

       arrest, which stated: “Report of erratic driving, improper lane usage, slurred speech, bloodshot

       eyes, failure to complete one leg stand test, [and] failure to complete walk and turn test.”

¶ 16          The off-duty Palos Hills police officer testified that the locations where he observed

       defendant commit the traffic offenses and where he stopped defendant were both outside of his




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       jurisdiction. Palos Hills is located in Cook County, whereas Lockport is located in Will County,

       Illinois.

¶ 17           After the conclusion of the parties’ arguments, the court continued the matter to

       September 21, 2015, for the purpose of allowing the parties to submit case law in support of their

       positions. On September 21, 2015, the court announced its findings.

¶ 18           The court noted it was undisputed that the Palos Hills police officer was off duty and

       outside of his jurisdiction when the officer first observed defendant’s vehicle traveling towards

       him on the roadway. The court expressed doubts about “the truthfulness and accuracy of the

       officer’s testimony as it relates to the series and sequence of [the officer’s] observations.” The

       court’s findings implied that the court believed the off-duty Palos Hills police officer first used

       the radar gun to measure defendant’s speed before observing defendant commit the other

       offenses. The trial judge stated that when making an extraterritorial arrest, an off-duty police

       officer may not use powers of his office that are unavailable to a private citizen to obtain

       evidence. Accordingly, the trial court granted defendant’s motion to quash the DUI arrest and

       suppressed all evidence obtained as a result of the first unlawful stop.

¶ 19           On December 3, 2015, the court held a hearing on the State’s motion to reconsider. At the

       hearing, the trial court emphasized that it believed the evidence obtained from the radar gun was

       the true reason for the stop, not the improper lane usage described by the off-duty police officer.

       The trial judge was concerned that the Lockport police officer did not charge defendant with an

       improper lane usage violation. For these reasons, the trial court judge questioned the off-duty

       police officer’s “conclusion that the stop was predicated on the lane violation” independent from

       information gathered by the use of the radar gun. Therefore, the judge denied the State’s motion

       to reconsider.




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¶ 20                                               ANALYSIS

¶ 21          The State contends the trial court erroneously granted defendant’s motion to quash and

       suppress evidence. The State argues the off-duty Palos Hills police officer properly performed a

       citizen’s arrest after observing defendant commit the offenses of improper lane usage and erratic

       driving. Therefore, the State submits defendant was lawfully under citizen’s arrest for improper

       lane usage before the Lockport police officer took over the investigation in his jurisdiction.

¶ 22          When reviewing a trial court’s ruling on a motion to quash and suppress evidence, the

       trial judge’s factual findings are entitled to deference and will be reversed only if such findings

       are against the manifest weight of the evidence. People v. McDonough, 239 Ill. 2d 260, 266

       (2010). On the other hand, the trial judge’s ultimate ruling on whether suppression is warranted

       involves a legal question subject to de novo review. Id. Thus, for purposes of our analysis, we

       defer to the trial court’s factual findings regarding the sequence of the officer’s observations.

¶ 23          The court found the off-duty Palos Hills police officer first used his radar unit before

       making a decision to follow and eventually stop defendant. The court found the citizen’s arrest

       by the off-duty officer for improper lane usage was invalid because the officer first gathered

       information concerning defendant’s speed by using the powers of his office, a radar gun.

¶ 24          At common law, a police officer cannot lawfully arrest a suspect outside of the

       jurisdiction that appointed the officer unless acting in “fresh pursuit” of a suspected felon fleeing

       from that jurisdiction. People v. Lahr, 147 Ill. 2d 379, 382 (1992). An exception to the common-

       law rule arose from section 107-3 of the Code of Criminal Procedure of 1963 (the Code), which

       allows a private person to arrest another person when “he has reasonable grounds to believe that

       an offense other than an ordinance violation is being committed.” 725 ILCS 5/107-3 (West




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       2014). Under section 107-3, a police officer acting outside of his jurisdiction retains all of the

       rights of an ordinary citizen to effectuate a citizen’s arrest. Lahr, 147 Ill. 2d at 382.

¶ 25           However, an extraterritorial arrest by an officer acting in the capacity of a private citizen

       will not be upheld by a court pursuant to section 107-3 where the officer, acting as a citizen,

       relies on information gathered by using powers of his office to create reasonable grounds for the

       arrest. Powers of office have been construed to include the use of a radar gun because this device

       is generally unavailable to private citizens. Id. at 383.

¶ 26           The record reveals defendant voluntarily stopped his vehicle once he arrived at the

       driveway of a friend’s house. The off-duty Palos Hills police officer did not activate his lights to

       effectuate a traffic stop at any point in this process. Instead, defendant voluntarily parked and

       exited his vehicle without any directive from the off-duty officer. Defendant was on foot when

       the off-duty Palos Hills police officer approached defendant and struck up a conversation. Again,

       we conclude, defendant voluntarily stopped walking in order to speak to the off-duty Palos Hills

       police officer.

¶ 27           During this conversation, the off-duty Palos Hills police officer asked if defendant had

       been drinking, asked for defendant’s driver’s license, and instructed defendant to wait with the

       officer in the driveway until the Lockport police department could reach that location. Shortly

       thereafter, the Lockport police officer arrived and spoke to both men.

¶ 28           The off-duty Palos Hills police officer spoke to the Lockport police officer about the

       erratic driving and improper lane use he witnessed on the night of the incident. This

       circumstance is included in the Lockport police officer’s sworn report concerning defendant’s

       arrest for DUI.




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¶ 29          Here, an off-duty police officer, acting outside his jurisdiction, stopped defendant for

       improper lane usage. Improper lane use is an “offense other than an ordinance violation” for the

       purposes of creating the authority to effectuate a citizen’s arrest under section 107-3 of the Code.

       See People v. Kleutgen, 359 Ill. App. 3d 275, 279 (2005). However, the Lockport police officer

       conducted his own investigation of the DUI offense after arriving on scene. It was the Lockport

       police officer that elected to arrest defendant for DUI and speeding, but did not issue a citation

       for improper lane usage.

¶ 30          The case law provides that the Lockport police officer was not required to charge

       defendant with all minor violations witnessed by the off-duty Palos Hills police officer because

       after the stop, the Lockport police officer became aware of a more serious violation. See People

       v. Goestenkors, 278 Ill. App. 3d 144, 149 (1996). We conclude that the Lockport police officer’s

       decision not to charge defendant with improper lane usage is not outcome determinative.

¶ 31          In spite of these unusual events, we conclude the trial court’s ruling misapplies existing

       case law. In People v. Gutt, 267 Ill. App. 3d 95, 99 (1994), the court upheld an extraterritorial

       arrest, similar to the case at bar. In that case, the off-duty officer first used a radar gun to obtain

       evidence but later observed the defendant fail to use his turn signal. The same circumstances

       exist here and support the lawfulness of defendant’s arrest for improper lane usage before the

       Lockport police officer made it to the scene. We hold that an off-duty police officer’s use of a

       radar gun outside of his jurisdiction, before personally witnessing a driver commit other traffic

       offenses unrelated to excessive speed, will not taint subsequently developed probable cause to

       conduct an arrest by the officer acting in his civilian capacity.

¶ 32          We reverse and remand for further proceedings.




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¶ 33                                         CONCLUSION

¶ 34          The judgment of the circuit court of Will County is reversed and remanded for further

       proceedings.

¶ 35          Reversed and remanded.




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