                                          No. 3-09-0396

                         Opinion filed December 21, 2010.
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                                       THIRD DISTRICT

                                           A.D., 2010

THE PEOPLE OF THE STATE OF            )   Appeal from the Circuit Court of the
ILLINOIS,                             )   Twelfth Judicial Circuit,
                                      )   Will County, Illinois,
      Plaintiff-Appellant,            )
                                      )
      v.                              )   No. 08-CF-2005
                                      )
DENNIS A. HACKETT,                    )   The Honorable
                                      )   Carla Alessio Policandriotes,
      Defendant-Appellee.             )   Judge, Presiding.
______________________________________________________________________________

       JUSTICE McDADE delivered the judgment of the court, with opinion.
       Justice O’Brien concurred in the judgment and opinion.
       Justice Schmidt dissented, with opinion.


                                            OPINION

       The State charged defendant, Dennis A. Hackett, with aggravated driving under the

influence and aggravated driving while license revoked. The circuit court of Will County granted

defendant’s motion to quash arrest and to suppress evidence on the grounds police lacked

probable cause to stop defendant’s vehicle. For the following reasons, we affirm.

                                        BACKGROUND

       At the hearing on defendant’s motion to quash arrest and suppress evidence, Deputy

Michael Blouin of the Will County sheriff’s police testified that he was driving his unmarked
police vehicle northbound on Briggs Street near Maple in Will County when he observed

defendant’s vehicle traveling north on Briggs directly in front of him. Blouin described Briggs as

a straight, four-lane roadway with two lanes of northbound traffic and two lanes of southbound

traffic. The north and south lanes are marked by a divider and the two northbound lanes of traffic

are divided by black and white stripes. Blouin first observed defendant’s vehicle in the right-hand

northbound lane of traffic. Defendant crossed into the left-hand northbound lane and Blouin

maneuvered his vehicle to follow behind defendant.

        Blouin testified that after entering the left-hand northbound lane, he observed defendant’s

vehicle move to the right. Blouin testified that defendant’s vehicle’s right-side tires crossed the

black-and-white-striped lane divider between the two northbound lanes of traffic on Briggs.

Defendant’s vehicle then moved back into the left-hand lane. Blouin testified that five seconds

later, defendant’s right-side tires again crossed the black-and-white-striped lane divider. Blouin

could not recall how far defendant’s vehicle crossed into the right-hand lane of northbound traffic

on Briggs. Blouin stated that defendant’s tires “slightly” crossed the lane divider. Blouin testified

that both times, defendant’s vehicle “barely” went over the black-and-white-striped lane divider

and that both times, defendant’s tires crossed the line for a matter of seconds.

        Based on his observations of defendant’s vehicle crossing the lane divider between the two

northbound lanes of traffic on Briggs, Deputy Blouin decided to stop defendant’s vehicle for a

traffic violation. Blouin testified that he did not stop defendant’s vehicle after the first time he

observed defendant’s vehicle cross the lane divider but that he did decide to stop defendant after

defendant “swerved a second time” because, in his opinion, if a vehicle “swerves” twice there is

usually a problem with the driving. Blouin did not, however, stop defendant immediately after he


                                                  -2-
“swerved a second time.” Rather, he followed him. While Blouin did not specifically recall

Hackett’s turn indicators flashing or his stopping for lights, he testified that had he seen violations,

he would have ticketed defendant for them. Thus the evidence supports finding that after

defendant’s two momentary swerves Blouin continued to follow him while defendant, without

committing any traffic violation, negotiated (1) the move into the left turn lane, (2) two left turns,

and (3) compliance with the laws concerning lane usage, speed limit, turn signals, and traffic

signals.

                                               ANALYSIS

           Following the hearing on the motion, the trial court granted defendant’s motion to quash

arrest and suppress evidence.

                          “On appeal, a trial court's factual findings concerning a

                  motion to suppress will be upheld unless they are against the

                  manifest weight of the evidence. [Citation.] The ultimate decision,

                  however, concerning whether the evidence should have been

                  suppressed is a question of law, which we review de novo.

                  [Citation.]

                          A peace officer may conduct a lawful traffic stop based on

                  probable cause that the driver of the vehicle has committed a traffic

                  violation. [Citation.]” People v. Matous, 381 Ill. App. 3d 918, 921-

                  22 (2008), citing Illinois v. Caballes, 543 U.S. 405 (2005).

           The State argues that Blouin had probable cause to believe that defendant violated section

11-709(a) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-709(a) (West 2006)).


                                                   -3-
                 “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 2006).

          Defendant argues, based on his testimony, that in the area he was driving, Briggs is in

poor condition and that he may have been taking evasive action to avoid potholes. The State

argues that Blouin testified that he did not see any potholes or obstructions that would cause a

driver to deviate from a lane of traffic. The State argues that absent obstructions that would

cause a driver to deviate from a lane of traffic, an officer’s observation of a vehicle crossing the

lane divider provides the officer with grounds for a traffic stop based on a violation of section 11-

709(a).

          In People v. Halsall, 178 Ill. App. 3d 617, 618 (1989), the officer testified that he

observed the defendant's vehicle traveling on the left-hand side of the road. The car slowly drifted

into the right lane. The defendant in that case drove his vehicle once across the center line and,

after increasing his speed to an estimated 70 miles per hour, crossed the center line two more

times. The testimony in that case was that when the defendant crossed the center line,

approximately one-half of his car was over the line. Halsall, 178 Ill. App. 3d at 618.

          This court found that there was no evidence that when the defendant in Halsall moved

outside of his lane he endangered himself, pedestrians, or other vehicles. Based on that finding,


                                                    -4-
this court held that “the State failed to prove that when the defendant moved outside of his lane

he did so without first determining that the movement could be made safely” (Halsall, 178 Ill.

App. 3d at 619) and reversed the judgment of conviction for improper lane usage (Halsall, 178

Ill. App. 3d at 620). See also People v. Albright, 251 Ill. App. 3d 341, 343 (1993) (“This court

has held that improper lane usage does not occur unless the defendant endangers himself,

pedestrians, or other vehicles when he moves out of his lane of traffic”).

        The driving in both Halsall and Albright was potentially more dangerous than defendant’s

driving in the case before us now. Blouin provided no testimony concerning other vehicles or

pedestrians on Briggs at the time he observed defendant’s driving. Blouin could not testify how

far defendant’s tires crossed the dividing line. By contrast, in Albright, the defendant crossed the

line on the right side by at least a tire width on three separate occasions. Albright, 251 Ill. App.

3d at 342. Even were we to assume the presence of vehicles or pedestrians, Blouin admitted that

defendant’s encroachment into another lane of traffic was slight and brief, lasting a total of mere

seconds. Thus, under Halsall and Albright, we would affirm the trial court’s judgment that

Blouin did not have probable cause to believe that defendant had committed a traffic violation and

affirm the order granting defendant’s motion to quash arrest. The questions we are confronted

with are (1) whether our decisions in those cases remain valid following the supreme court’s

decision in People v. Smith, 172 Ill. 2d 289, 297 (1996), and (2) whether Smith requires reversal

of the trial court in the instant case.

        In Smith, the defendant was observed by a police officer leaving a tavern, getting in his car

and driving away. The officer, suspecting impairment, followed defendant as he drove on a four-

lane, two-way street with a fifth lane in the center northbound and southbound for turning. The


                                                 -5-
officer observed the driver's side wheels of the defendant's car cross over the lane line dividing the

left lane from the center turn lane by at least six inches and remain over the lane line for

approximately 100 to 150 yards--the length of 1 to 1 1/2 football fields. A short time later, the

defendant crossed over the lane line dividing the left lane from the right lane by approximately six

inches for 150 to 200 yards. Smith, 172 Ill. 2d at 293. Thus, the defendant in Smith was driving

significant distances in all three lanes of traffic–sometimes with his vehicle in the left and right

lanes and sometimes in the left and center turn lanes. The police officer testified that the

defendant did not endanger any other vehicles or persons when he deviated across the lane lines

and verified that the defendant never completely left the center lane in which he was traveling.

Smith, 172 Ill. 2d at 293.

        The defendant in Smith argued that a violation of section 11-709(a) does not occur when a

motorist momentarily crosses over a lane line, but occurs only when a motorist endangers others

while moving from a lane of traffic. Smith, 172 Ill. 2d at 296. Our supreme court held that “[t]he

plain language of the statute establishes two separate requirements for lane usage. First, a

motorist must drive a vehicle as nearly as practicable entirely within one lane. Second, a

motorist may not move a vehicle from a lane of traffic until the motorist has determined that the

movement can be safely made.” (Emphasis added.) Smith, 172 Ill. 2d at 296-97. The court

concluded that “[i]t follows 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.” (Emphasis added.)

Smith, 172 Ill. 2d at 297.

        In light of this language in Smith, it seems clear that our earlier decisions in Halsall and

Albright would no longer be valid. In both of those cases, the drivers had encroached


                                                  -6-
significantly into a second lane and had proceeded an appreciable distance in two lanes.

       Turning to the question of whether Smith requires reversal of the trial court in the instant

case, we do not read Smith as holding that any time a motorist veers momentarily and minimally

over a lane line he or she is driving in more than one lane of traffic. There are too many innocent

circumstances that might cause a motorist to momentarily and inadvertently inch across a lane

divider to find that such action, without more creates probable cause to arrest.

       Based on the evidence in the instant record we cannot find that any police officer in

Blouin’s position could have reasonably believed that defendant was driving in more than one

lane within the meaning of the statute and therefore committed the traffic violation for which he

was stopped.

                       "Where a traffic stop is based upon a mistake of law, it is

               unconstitutional. However, this may not resolve the issue. An

               otherwise improper stop based on a mistake of law may be found

               reasonable and constitutional if ‘the facts known to [the officer]

               raised a reasonable suspicion that the defendant was in fact

               violating the law as written.’ [Citation.] A police officer may stop

               a vehicle where he has reasonable suspicion to believe a driver is

               violating the Vehicle Code. [Citation.] Reasonable suspicion exists

               where an officer possesses specific, articulable facts that, when

               combined with rational inferences derived from those facts, give

               rise to a belief the driver is committing a traffic violation." People

               v. Mott, 389 Ill. App. 3d 539, 543-44 (2009).


                                                 -7-
       First, Blouin provided no testimony from which to find that an officer in his position could

reasonably believe that defendant engaged in improper lane usage. We fully accept and apply the

supreme court’s finding that section 11-709(a) creates “two separate requirements for lane usage”

including the independent requirement that “a motorist must drive *** as nearly as practicable

entirely within one lane.” Smith, 172 Ill. 2d at 296-97. We construe Smith, we believe properly

and consistently with the supreme court’s intent, to apply to situations like the one presented to

the court in that case, where the driver of the vehicle actually drives for some reasonably

appreciable distance in more than one lane of traffic.

       Our reading of Smith is supported by the supreme court’s own language. It specifically

held that “[o]nce [the officer] saw [the] defendant cross over a lane line and drive in two lanes of

traffic, [he] had probable cause to arrest [the] defendant for a violation of the Code.” (Emphasis

added.) Smith, 172 Ill. 2d at 297. We do recognize and take note that the supreme court did not

specify how far a vehicle must encroach a second lane of traffic or how long a vehicle must travel

in two lanes of traffic to establish probable cause to arrest the driver for a violation of the Code.

To answer that question, we turn to the holding in Smith–again, in an effort simply to be

consistent with the language the supreme court chose in its judgment. Based entirely on what we

reasonably believe the supreme court intended by its own language in its judgment in Smith, we

must find that the court would hold that probable cause exists to find that a driver has failed to

drive “as nearly as practicable entirely within one lane” when “a reasonable, prudent man in

possession of the knowledge of the arresting officer would believe that [the] offense has been

committed.” Smith, 172 Ill. 2d at 297, citing People v. Robinson, 62 Ill. 2d 273, 276 (1976).

       In this case, by Blouin’s own admission, defendant’s tires only slightly crossed the lane


                                                  -8-
divider for mere seconds before defendant continued to operate his vehicle entirely in the left-hand

lane of traffic. Instructive and in stark contrast is Smith, where the defendant drove with his

wheels straddling the lane dividers by six inches on opposite sides of the street on two separate

occasions, effectively driving in three lanes of traffic for approximately 150 yards each time. With

regard to the second requirement of the statute, nothing in Blouin’s testimony provides any bases

to find that if defendant did change from the left lane of traffic to the right, however briefly, he did

not do so without first determining that it was safe. The evidence does not provide grounds upon

which to find that defendant’s driving endangered himself, pedestrians, or other vehicles at any

time.

        Thus, we conclude that Officer Blouin lacked probable cause to stop defendant for a

violation of section 11-709(a). “An officer may conduct a Terry traffic stop if the officer has a

reasonable, articulable suspicion that *** (3) the vehicle *** is subject to seizure for violation of a

law.” People v. Matous, 381 Ill. App. 3d 918, 922 (2008). The violation of law for which Blouin

stopped defendant did not occur, and no police officer in Blouin’s position could have reasonably

believed that the violation occurred. Accordingly, we would also find that the facts and

circumstances surrounding the traffic stop did not provide a reasonable, articulable suspicion to

stop defendant based on Blouin’s stated reason of a violation of section 11-709(a).

        We find that Smith does not compel a different result. In so holding, we acknowledge that

Hackett was drunk and the confirmation of his inebriation was the basis for his Motion to

Suppress which the trial court granted. That fact should not, however, drive our construction of

the statute. Accordingly, we hold that the trial court properly granted defendant’s motion to

quash arrest and suppress evidence.


                                                  -9-
        Contrary to the dissent’s implication, our decision is not based on whether or not

defendant swerved to avoid a pothole. Our decision is based on our finding that Blouin was

mistaken in his belief that defendant’s driving violated the law in question. The dissent 1 asserts

that "[c]learly, the officer had probable cause to stop the defendant for improper lane usage." Slip

dissent at 9. We acknowledge the attractiveness of the dissent’s legal "conclusion" given that,

literally, when one’s left tires are in the left lane and right tires are in the right lane, however

slightly or briefly, one is not entirely in a single lane of traffic. However, we disagree with the

dissent’s conclusion that Smith held that merely permitting one’s tires to briefly cross the center

line is a per se violation of the statute because one is not driving "as nearly as practicable entirely

within one lane" or that such action constitutes driving in two lanes of traffic within the meaning

of the improper lane usage statute.

        Thus, we clarify that our finding is not that Blouin provided no testimony from which to

find that all parts of defendant’s vehicle were not at all times physically within a single lane of

traffic, but rather that Blouin provided no testimony from which to find that an officer in his

position could reasonably believe that defendant was actually driving in two lanes and was

therefore engaged in improper lane usage in violation of the statute. Based on Blouin’s testimony

and consistent with Smith, we hold that the trial court properly granted defendant’s motion to


        1
            The dissent, typically and predictably, resorts to ridicule, hyperbole, personal anecdotes

and observations, assaults on positions not taken by the majority, quotes taken out of context, and

facts outside the record to attack a legal analysis with which he does not agree. If the majority

decision is indeed wrong, it should be possible to demonstrate that error in a mature and

professional counteranalysis.

                                                   -10-
quash arrest and suppress evidence.

                                           CONCLUSION

       The circuit court of Will County’s order is affirmed.

       Affirmed.

       JUSTICE SCHMIDT, dissenting:

       This case should have been resolved by a summary order reversing the trial court and

remanding for further proceedings. Smith and the plain language of the statute control. A police

officer stopped defendant after watching defendant swerve twice across a lane divider line. The

roadway was flat and straight. The second swerve took place approximately five seconds after

the first. Each time defendant swerved, both right tires crossed the lane divider line. The officer

could see space between the lane divider line and defendant's right tires. Defendant was ticketed

for improper lane usage and ultimately charged with aggravated DUI (625 ILCS 5/11--501(a)(2)

(West 2008)), and aggravated driving while license revoked (625 ILCS 5/6--303(d) (West 2008)).

After a suppression hearing, the trial court found no probable cause for the traffic stop. The

majority affirms.

       The majority finds comfort in the fact that the officer noted no other violations concerning

lane usage, speed limit, turn signals and traffic signals. These observations by the majority are

totally irrelevant to the issue of whether the police officer had probable cause to stop the

defendant for improper lane usage after the incidents he described.

       The majority also states, "Thus the evidence supports finding that after defendant's two

momentary swerves Blouin continued to follow him while defendant, without committing any

traffic violation, negotiated (1) the move into the left turn, (2) two left turns, and (3) compliance


                                                 -11-
with the laws concerning lane usage, speed limit, turn signals, and traffic signals." Slip op. at 3. I

am not sure of the import of the majority's observation here. It seems to be suggesting that the

probable cause created by the two swerves over the lane divider somehow evaporated when

defendant was able to make several other maneuvers without the officer observing any additional

traffic violations. This is some interesting new law with no support in the existing law. The

majority should explain how many legal maneuvers or how far a driver must drive after

committing a traffic violation without committing another violation before the probable cause

disappears. Police officers and prosecutors will undoubtedly want to know this. The fact is, from

a legal standpoint, the officer's failure to note any additional traffic violations after the first two

(or first one for that matter) is totally irrelevant to whether the officer had probable cause to stop

the defendant for improper lane usage. I will add an experience-based observation that is

undoubtedly just as irrelevant as the majority's observation. Once a police officer has made a

determination to stop someone for whatever violation, the officer generally is not looking for

other small violations, but is instead watching the driver and also watching and looking for an

appropriate place to conduct the traffic stop. He or she is usually not intent upon seeing how

many minor traffic violations can be racked up before the stop is effected. Once a decision to

stop is made, officers start thinking about their own safety as well as the safety of the public in

determining where or how to make the stop.

        The majority states, "Defendant argues, based on his testimony, that in the area he was

driving, Briggs is in poor condition and that he may have been taking evasive action to avoid

potholes." Slip op. at 4. During defendant's direct examination by his own attorney, defendant

testified as follows:


                                                   -12-
                   "Q. Can you describe the road conditions

                on Briggs street as you're heading northbound

                from that gas station to Second?

                   A. There are two lanes north, two lanes

                south in need of repair like many other roads

                in the Joliet area or probably most of Illinois.

                   Q. Did you notice potholes as you were

                proceeding northbound on Briggs?

                   A. There were several of them.

                   Q. Did you have to take any evasive action

                in your pickup truck to avoid driving straight

                into potholes?

                   A. There is a possibility, yes."

       On cross-examination, the defendant was asked whether his tires could have touched or

crossed over the centerline a second time. He said he did not believe so, but he thought one time

was possible.

                   "Q. Is it possible that it happened twice?

                   A. I don't believe so.

                   Q. But one time it is possible?

                   A. Well, with the potholes and different

                things, I -- I would imagine that I probably

                did move towards the center of the road."


                                                  -13-
         Even when coached by his own attorney during direct examination, defendant did not say

that he swerved to avoid a pothole. His strongest testimony was that there was a possibility that

he swerved to avoid a pothole. The police officer testified that he saw no potholes, did not hit

any potholes, and did not need to take evasive action to avoid any potholes while driving behind

defendant on Briggs Street. However, even ignoring the officer's testimony, we have no

testimony from defendant that he had to swerve to avoid a pothole or any other obstruction. At

best, this testimony by defendant goes to his guilt or innocence of the charge, not to probable

cause.

         The officer testified that when defendant swerved across the lane marker the second time,

he decided to stop defendant for improper lane usage. While he was not as concerned with the

first swerve, he felt the second swerve indicated a problem with defendant's ability to drive. This

was an absolutely flawless exercise of judgment on the officer's part. Police officers do not stop

every car for every minor traffic violation they see. This is common knowledge. However, the

officer decided since defendant swerved partially into the right-hand lane twice within a very short

period of time, that there was a problem.

         In reaching its decision, the majority discusses two pre-Smith cases: People v. Halsall,

178 Ill. App. 3d 617, 533 N.E.2d 535 (1989), and People v. Albright, 251 Ill. App. 3d 341, 622

N.E.2d 60 (1993). As the majority points out, these cases stood for the proposition that improper

lane usage does not occur unless defendant endangers himself, pedestrians, or other vehicles when

he makes a move out of his lane of traffic. Slip op. at 4-5. The majority concedes that Halsall

and Albright are no longer good law in light of Smith. Nonetheless, it states, "The driving in both

Halsall and Albright was potentially more dangerous than defendant's driving in the case before


                                                 -14-
us now." Slip op. at 5. Of what possible relevance is a comparison to the defendant's driving here

and the driving of the Halsall and Albright defendants?

       In Smith, the supreme court specifically rejected defendant's argument "that a violation of

section 11-709(a) does not occur when a motorist momentarily crosses over a lane line, but

occurs only when a motorist endangers others while moving from a lane of traffic." (Emphasis

added.) Smith, 172 Ill. 2d at 296. Our supreme court held that "Once [the officer] saw defendant

cross over a lane line and drive in two lanes of traffic, [the officer] had probable cause to arrest

defendant for a violation of the Code." Smith, 172 Ill. 2d at 297. Nonetheless, the majority

"[does] not read Smith as holding that any time a motorist veers momentarily and minimally over

a lane line he or she is driving in more than one lane of traffic." Slip op. at 7. Again,

notwithstanding the clear language in Smith, the majority holds "[t]here are too many innocent

circumstances that might cause a motorist to momentarily and inadvertently inch across a lane

divider to find that such action, without more creates probable cause to arrest." Slip op. at 7. I

could write a book about that sentence alone without touching the rest of the majority's result-

orientated decision. We are not talking about murder or treason here, we are talking about

violations of the traffic code in which the driver's good intentions and/or inadvertence are

irrelevant. The legislature chose for a reason not to make intent an element of a traffic offense. It

recognized the obvious: inadvertence kills.

       The majority then makes an amusing run at distinguishing the case before us from Smith.

Slip op. at 5-9. The Smith defendant wandered across lane lines twice. The supreme court spoke

in terms of distance, rather than time. The first time across the lane line, defendant Smith's tires

were at least six inches across the lane divider for a distance of 100 to 150 yards. Smith, 172 Ill.


                                                 -15-
2d at 293. On the second incident, the supreme court simply states that the officer saw the

defendant cross over the lane line dividing the left lane from the right lane by approximately six

inches for 150 to 200 yards. Smith, 172 Ill. 2d at 293. We do not know what the speed limit was

on the highway being traversed by Smith. Therefore, we cannot be sure how long Smith had his

tires across the lane line. Nonetheless, the majority finds that these were "significant" distances.

Slip op. at 6.

        The majority then goes on to state, "In this case, by Blouin's own admission, defendant's

tires only slightly crossed the lane divider for mere seconds before defendant continued to operate

his vehicle entirely in the left-hand lane of traffic. Instructive and in stark contrast is Smith, where

the defendant drove with his wheels straddling the lane dividers by six inches on opposite sides of

the street on two separate occasions, effectively driving in three lanes of traffic for approximately

150 yards each time." Slip op. at 8-9. First of all, with respect to the lateral intrusion into the

neighboring lane, the Smith tire was six inches over the line. I have no idea how wide the majority

thinks a truck tire is, but the officer in this case said he saw a space between the lane divider line

and the vehicle's tire. He did not elaborate as to how much space he saw. Nor did he need to. It

would be an unusual tire that was not at least six inches wide itself. Of course, in any normal

vehicle, parts of the vehicle body extend beyond the outside of the tire. Clearly, parts of the

defendant's vehicle had to have been well over six inches beyond the line. This would be true had

the defendant been riding a motorcycle, let alone a motor vehicle. In fact, the testimony was that

defendant was driving a pickup truck.

        Secondly, with respect to the distance traveled forward while straddling the lane line, the

majority points out that defendant here was over the line for "mere seconds" each time he crossed


                                                 -16-
the lane divider. Slip op. at 8. In a mere second, a vehicle traveling 30 miles per hour travels

approximately 45 feet, one traveling 40 miles per hour travels approximately 60 feet, and one

traveling 60 miles per hour travels approximately 90 feet. If the vehicle is across the lane divider

for a mere four seconds and traveling at 40 miles per hour, the vehicle has traveled 240 feet or 80

yards. This is simple arithmetic, not quantum physics or rocket science. Where would the

majority draw the line?

       In another unbelievable sentence, the majority states, "We construe Smith, we believe

properly and consistently with the supreme court's intent, to apply the situations like the one

presented to the court in that case, where the driver of the vehicle actually drives for some

reasonably appreciable distance in more than one lane of traffic." (Emphasis in original and

added.) Slip op. at 8. I hate to be flip, but the majority invites it. This opinion would not stand-

up to a Vinny Gambini cross-examination. I can only think of that renowned trial lawyer's cross-

examination of witness Mr. Tipton regarding the time it took to cook grits on Tipton's stove.

Vinny Gambini would undoubtedly ask whether the law of physics cease to exist on highways in

the Third District allowing a vehicle to travel for four seconds with its tires in two separate lanes

and yet not be "actually driving in more than one lane of traffic." Was this a magic pickup truck?

Did the defendant buy his truck from the same guy that sold Jack his beanstalk beans? If the

defendant was not actually driving in more than one lane of traffic, what was he "actually" doing?

Just what is a reasonably appreciable distance? How does an officer decide? The majority leaves

no workable rule.

       I could write a four-volume dissent on this case, picking apart one silly sentence after

another in the majority opinion. However, I will stop here. The thrust of the majority opinion is


                                                 -17-
that the majority believes that police should not be able to stop people for minor traffic violations.

I suppose we all feel that way when we are stopped for one. This is the appellate court; we do

not get to rewrite the law based upon our feelings about it. The supreme court and the legislature

have that power. We do not. Clearly, the officer had probable cause to stop the defendant for

improper lane usage. The supreme court's decision in Smith is not ambiguous. Whether the

defendant inadvertently or intentionally swerved twice across the lane divider lane is irrelevant.

The majority opinion stands the law on its head and creates a totally unworkable scheme for

traffic law enforcement. Do we apply the same analysis to speeding? Must one speed for a

"reasonably appreciable distance" to violate speed laws?

        Illinois has five appellate courts and one supreme court. Our supreme court does not have

the resources to correct every wrongly decided appellate decision. The majority undoubtedly is

banking on the fact that the court will have more pressing matters before it and not grant a

petition for leave to appeal on this matter. With all due respect, the majority opinion is nonsense,

plain and simple. Even worse, it endangers the lives of the motoring public by limiting the ability

of police officers to stop erratic drivers. I dissent.




                                                  -18-
