                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Wright, 2011 IL App (4th) 100047




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



District & No.             Fourth District
                           Docket No. 4-10-0047


Filed                      September 16, 2011
Rehearing denied           November 17, 2011
Held                       Defendant’s convictions for driving while his license was revoked and
(Note: This syllabus       aggravated driving under the influence of alcohol were upheld over his
constitutes no part of     contentions that the trial court erred in denying his motion to suppress the
the opinion of the court   statements he made at the time of his arrest and the toxicology results of
but has been prepared      his blood and urine tests because he was not informed of his Miranda
by the Reporter of         rights, since defendant was not “in custody” for Miranda purposes when
Decisions for the          he made unsolicited admissions that he had been drinking and driving,
convenience of the         and after he had been arrested for a DUI offense, he had no right to refuse
reader.)
                           chemical testing.


Decision Under             Appeal from the Circuit Court of Livingston County, No. 09-CF-170; the
Review                     Hon. Robert M. Travers, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, Michael H. Vonnahmen, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Thomas J. Brown, State’s Attorney, of Pontiac (Patrick Delfino, Robert
                           J. Biderman, and Luke McNeill, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE STEIGMANN delivered the judgment of the court, with
                           opinion.
                           Justice Turner concurred in the judgment and opinion.
                           Justice Cook specially concurred, with opinion.




                                              OPINION

¶1          Following an August 2009 bench trial, the trial court convicted defendant, Bruce E.
        Wright, of (1) driving while his privilege to operate a motor vehicle was revoked (DWR)
        (625 ILCS 5/6-303(a) (West 2008)) and (2) aggravated driving under the influence of alcohol
        (DUI) with a blood-alcohol content (BAC) of 0.08 or more (625 ILCS 5/11-501(d)(1)(G)
        (West 2008)). The court had earlier denied defendant’s motion to suppress evidence of (1)
        the statements he made at the time of his arrest and (2) the toxicology results of his blood and
        urine tests. In October 2009, the court sentenced defendant to two extended-term sentences
        of four years in prison, to be served concurrently.
¶2          Defendant appeals, arguing only that the trial court erred by denying his motion to
        suppress evidence. We disagree and affirm.

¶3                                         I. BACKGROUND
¶4                  A. The State’s Charges and Defendant’s Motion To Suppress
¶5          In June 2009, the State charged defendant with DWR (625 ILCS 5/6-303(a) (West
        2008)). In July 2009, defendant filed a motion to suppress evidence, arguing, in pertinent
        part, that because the arresting officer, Livingston County deputy sheriff Derrick Renken, did
        not inform him of his constitutional rights pursuant to the United States Supreme Court’s
        holding in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), when Renken placed
        him in the backseat of his squad car, any subsequent statements or evidence police obtained
        should be suppressed.
¶6          The State later filed an amended information, charging defendant with the following
        additional offenses: (1) aggravated DUI (625 ILCS 5/11-501(a)(2), (d)(1)(G) (West 2008));
        (2) aggravated DUI with a BAC of 0.08 or more (625 ILCS 5/11-501(a)(1), (d)(1)(G) (West

                                                  -2-
       2008)); and (3) aggravated DUI (combined influence of alcohol or intoxicating compound(s))
       other drug(s) (625 ILCS 5/11-501(a)(5), (d)(1)(G) (West 2008)).
¶7          At the August 2009 hearing on defendant’s motion to suppress evidence, Renken was the
       only witness. He testified that on June 22, 2009, he was traveling south in his patrol car when
       he saw defendant–whom he had known from previous encounters–driving north in a sport
       utility vehicle (SUV). Because Renken knew that defendant’s driving privileges had been
       revoked, he decided to perform a traffic stop. After making a U-turn, Renken lost sight of the
       SUV. Renken surmised that defendant had turned at the approaching intersection. After
       turning west at that intersection and realizing that the SUV was not traveling westbound,
       Renken performed another U-turn and traveled east. After driving a short distance, Renken
       noticed that defendant was a passenger in a car that was driven by a woman, who Renken
       later determined was Geraldine Russo. Renken followed the car, which returned to the street
       where Renken initially saw the SUV, and observed that it pulled into a driveway a couple of
       houses away from defendant’s home. As Renken drove past the driveway, defendant exited
       the car. Renken proceeded to the end of the block before returning to the driveway to speak
       with Russo.
¶8          Russo informed Renken that she saw defendant walking from the grocery store and
       offered him a ride, which he accepted. After defendant left Russo’s car, he walked across the
       street to a home owned by Robert Morgan, Sr. Renken went there and informed Morgan that
       he wanted to speak with defendant. Defendant came out and told Renken that he had just
       been released from jail. Renken informed defendant that he had seen defendant driving and
       that he knew defendant’s license had been revoked. Defendant responded that he was “going
       up to the grocery store to get his dog some bones.” As defendant spoke, Renken noticed the
       odor of alcohol on his breath. Renken asked defendant if he had been drinking. Defendant
       responded that he had been drinking and then made a gesture with his hand that demonstrated
       he had consumed six inches of alcohol but did not otherwise identify the type of alcohol he
       had consumed. Renken asked defendant where his SUV was located. After defendant
       responded, Renken told defendant that we are “going to make contact with the [SUV].”
¶9          Renken acknowledged that when he contacted defendant outside of Morgan’s residence,
       he knew defendant had violated the law by driving. Renken did not arrest defendant at that
       time because he wanted to investigate further based on defendant’s admission that he had
       consumed alcohol, which was consistent with the alcohol odor emanating from his breath.
       Renken stated that defendant voluntarily accompanied him to the grocery store parking lot
       in the backseat of his squad car, uncuffed, and with the rear windows down. Renken
       explained that he was complying with the county’s safety policy by not transporting
       defendant in the front seat of his squad car. After a brief ride, Renken located the SUV. In
       response to Renken’s question, defendant confirmed that he owned the SUV located in the
       grocery store parking lot.
¶ 10        Renken then informed defendant that he would be administering a series of sobriety tests
       because he believed that defendant was intoxicated. After defendant failed three of four field
       sobriety tests, Renken asked him to submit to a preliminary breath-screening test, which he
       refused. Renken arrested defendant and transported him to the county jail. While there,
       defendant voluntarily attempted, unsuccessfully, to perform a Breathalyzer test but agreed

                                                -3-
       to provide blood and urine samples. Renken acknowledged that (1) after defendant
       approached him in Morgan’s front yard, defendant would not have been free to leave had he
       attempted to do so because Renken would have detained him for further investigation and
       (2) prior to placing defendant in his squad car, intending to locate his SUV, Renken did not
       read defendant his Miranda rights.
¶ 11       Based on this evidence, the trial court denied defendant’s motion to suppress.

¶ 12                  B. The Evidence Presented at Defendant’s Bench Trial
¶ 13       At defendant’s August 2009 bench trial, Renken’s testimony concerning the
       circumstances that brought him into contact with defendant at Morgan’s front yard was
       substantially consistent with the testimony he provided at the hearing on defendant’s motion
       to suppress, but Renken added the following.
¶ 14       After defendant came out of Morgan’s home and approached Renken, defendant told
       Renken that he had just been released from jail and knew he should not have been driving.
       As defendant spoke, Renken noticed the odor of alcohol on his breath. Renken asked
       defendant if he had been drinking. Defendant responded that he had been drinking and then
       made a gesture with his hand that demonstrated he had consumed six inches of alcohol.
       Renken asked defendant, “[W]here did you park the vehicle?” Defendant responded that the
       SUV was located at the grocery store parking lot. Renken responded, “[W]e need[ ] to go and
       make contact with the [SUV].” Defendant walked to Renken’s squad car, at which point
       Renken placed defendant in the backseat. After arriving at the grocery store, Renken noted,
       and defendant confirmed, that the SUV in the parking lot was the same vehicle that
       defendant had been driving. Renken noted that the distance from Morgan’s residence to the
       grocery store parking lot–where defendant’s SUV was located–was “a block and a half” to
       the intersection and then another 200 feet to the parking lot.
¶ 15       Renken then informed defendant that he would be administering a series of sobriety tests
       because he believed that defendant was intoxicated. Prior to starting the “horizontal gaze
       nystagmus” (HGN) test, Renken had to prevent defendant from “swaying” into the squad car.
       Defendant thereafter complied with the instructions Renken provided with regard to the
       HGN test. Renken observed that defendant had difficulty maintaining his balance, but he
       knew that defendant had undergone surgery for a broken ankle. Renken then demonstrated
       and administered a “walk-and-turn” test. Defendant failed that test because he did not take
       “heel-to-toe” steps as Renken instructed. Renken elected not to administer the “one-legged
       stand” test because of defendant’s unsteady balance. Renken then placed defendant under
       arrest for DUI. Renken opined that at the time he placed defendant under arrest, defendant
       was “absolutely under the influence of alcohol.” (A videotaped recording of defendant’s
       sobriety tests was shown to the trial court.)
¶ 16       After transporting defendant to the county jail, Renken issued defendant citations for
       DWR and DUI. Defendant thereafter agreed to submit to a Breathalyzer test but after three
       attempts, could not provide an ample breath sample. Defendant then agreed to provide urine
       and blood samples, and a subsequent toxicology analysis of those samples showed that
       defendant’s (1) blood contained 0.134 grams of ethanol per deciliter and (2) urine contained

                                               -4-
       Valium, which enhances the effects of alcohol.
¶ 17       Defendant testified to the following version of events. At approximately 10:30 a.m. on
       June 22, 2009, he left Morgan’s home to purchase a half-pint bottle of whiskey because he
       ran out of his prescription medications–Valium and Vicodin–the preceding night and was
       anticipating that he would need something for his persistent leg pain until his mail-order
       refill arrived. Immediately thereafter, defendant walked to his SUV and drove to get some
       dog bones from the grocery-store butcher. Because defendant noticed Renken when he was
       driving to the store, he decided that he would walk back home. As defendant did so, he
       accepted a ride from Russo and, thereafter, walked across the street to Morgan’s home.
       While there, defendant saw Renken from Morgan’s kitchen window. Defendant surmised
       that he was going to go to jail, explaining, “Every time I see [Renken,] I get arrested.”
       Because defendant suspected that he would not receive any effective pain medication while
       in jail, he pulled out the half-pint bottle of whiskey, which was located in his back pocket,
       and consumed its contents. At that time, Morgan came in and told defendant that Renken
       wanted to speak with him.

¶ 18                       C. The Trial Court’s Judgment and Sentence
¶ 19       Following arguments, the trial court found defendant (1) guilty of (a) DWR and (b)
       aggravated driving with a BAC of 0.08 or more and (2) not guilty on the remaining charges.
       In October 2009, the court sentenced defendant to two extended-term sentences of four years
       in prison, to be served concurrently.
¶ 20       This appeal followed.

¶ 21                II. THE TRIAL COURT’S DENIAL OF DEFENDANT’S
                             MOTION TO SUPPRESS EVIDENCE
¶ 22       Defendant argues that the trial court erred by denying his motion to suppress evidence.
       In particular, defendant contends that because he was not informed of his Miranda rights
       when Renken placed him in the backseat of his squad car, any subsequent statements or
       evidence obtained should have been suppressed. We disagree.

¶ 23                                  A. The Standard of Review
¶ 24        In People v. Seiler, 406 Ill. App. 3d 352, 356-57, 943 N.E.2d 708, 712 (2010), this court
       recently stated the applicable standard of review in determining the appropriateness of the
       trial court’s ruling on a motion to suppress, as follows:
                     “This court applies a two-part standard of review when reviewing a ruling on a
                motion to suppress. We will only reject a court’s factual findings if they are against
                the manifest weight of the evidence. [Citation.] However, the court’s ultimate ruling
                is reviewed de novo.”




                                                -5-
¶ 25               B. The United States Supreme Court’s Holding in Miranda
¶ 26      In Miranda, 384 U.S. at 444, 86 S. Ct. at 1612, the Supreme Court held the following:
              “[T]he prosecution may not use statements, whether exculpatory or inculpatory,
              stemming from custodial interrogation of the defendant unless it demonstrates the use
              of procedural safeguards effective to secure the privilege against self-incrimination.
              By custodial interrogation, we mean questioning initiated by law enforcement
              officers after a person has been taken into custody or otherwise deprived of his
              freedom of action in any significant way. As for the procedural safeguards to be
              employed, unless other fully effective means are devised to inform accused persons
              of their right of silence and to assure a continuous opportunity to exercise it, the
              following measures are required. Prior to any questioning, the person must be warned
              that he has a right to remain silent, that any statement he does make may be used as
              evidence against him, and that he has a right to the presence of an attorney, either
              retained or appointed.”

¶ 27     C. The Relevant Factors That Determine Whether an Interrogation Is Custodial
¶ 28       The determination of whether a person is in custody, and, therefore, subject to Miranda
       warnings prior to questioning, involves the following two-part inquiry: (1) what were the
       circumstances surrounding the interrogation, and (2) given those circumstances, would a
       reasonable person have felt he was not at liberty to terminate the interrogation and leave?
       People v. Havlin, 409 Ill. App. 3d 427, 434, 947 N.E.2d 893, 899 (2011). The accepted test
       regarding the “reasonable-person” portion of the above inquiry is “what a reasonable person,
       innocent of any crime, would have thought had he or she been in the defendant’s shoes.”
       (Internal quotation marks omitted.) People v. Griffin, 385 Ill. App. 3d 202, 208, 898 N.E.2d
       704, 709 (2008).
¶ 29       The following factors are relevant to a determination regarding whether a statement was
       made in a custodial setting: (1) the location, time, length, mood, and mode of the
       questioning; (2) the number of police officers present during the interrogation; (3) the
       presence or absence of the individual’s family and friends; (4) any indicia of a formal arrest
       procedure, such as the show of weapons or force, physical restraint, booking, or
       fingerprinting; (5) how the individual arrived at the place of questioning; and (6) the age,
       intelligence, and mental makeup of the accused. People v. Slater, 228 Ill. 2d 137, 150, 886
       N.E.2d 986, 995 (2008).

¶ 30                               D. Defendant’s Miranda Claim
¶ 31        As previously stated, defendant contends that because Renken did not inform him of his
       Miranda rights prior to placing him in the backseat of his squad car, any subsequent
       statements he made to Renken or any evidence later obtained should have been suppressed.
       In this regard, defendant specifically contends that his (1) admission to Renken that he owned
       the SUV and (2) toxicology test results should have been suppressed. Our review of the
       record, however, shows that defendant was not “in custody” for Miranda purposes at the time
       Renken placed defendant in his squad car.

                                                -6-
¶ 32         1. Defendant’s Claim That His Statements Should Have Been Suppressed
¶ 33        “ ‘Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but
       only in those types of situations in which the concerns that powered the decision are
       implicated.’ ” People v. Jeffers, 365 Ill. App. 3d 422, 428, 849 N.E.2d 441, 446 (2006)
       (quoting Berkemer v. McCarty, 468 U.S. 420, 437, 104 S. Ct. 3138, 3148-49 (1984)).
       Miranda will not apply to a traffic stop unless a defendant can “demonstrate that, at any time
       between the initial stop and the arrest, he was subjected to restraints comparable to those
       associated with a formal arrest.” Berkemer, 468 U.S. at 441, 104 S. Ct. at 3151. “[T]he mere
       fact that an accused is not free to leave during a traffic stop or an investigation does not mean
       that a defendant is in custody for Miranda purposes.” Havlin, 409 Ill. App. 3d at 434, 947
       N.E.2d at 899.
¶ 34        In this case, Renken’s attempt to perform a traffic stop was “interrupted” by defendant’s
       decision to stop driving his vehicle and accept transportation from Russo during the brief
       time Renken was searching for defendant’s SUV. This situation resulted in the intervening
       transport of defendant from Morgan’s residence back to his vehicle, which defendant
       contends was “custodial” for Miranda purposes. Specifically, defendant asserts that he was
       in custody the moment Renken placed him in the squad car because (1) Renken (a) knew
       defendant’s license had been revoked and (b) testified that he would not have let defendant
       leave if he attempted to do so and (2) defendant (a) did not request to be driven to his vehicle
       and (b) knew that he was going to jail.
¶ 35        We first note that even if we agreed with defendant that the trial court erred by failing to
       suppress his statement regarding his ownership of the SUV–which we do not–such a
       statement would have been harmless error because defendant was not convicted of owning
       an SUV, but, instead, driving while revoked and intoxicated. Moreover, we reject
       defendant’s assertion that Renken’s subjective thoughts, suspicions, or historical knowledge
       of defendant is relevant to a “custodial” analysis for Miranda purposes, particularly when,
       as here, the record shows that Renken did not articulate his thoughts to defendant. See
       Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151 (“A policeman’s unarticulated plan has no
       bearing on the question whether a suspect was ‘in custody’ at a particular time ***.”).
       Indeed, in Ashcroft v. Al-Kidd, ___ U.S. ___, 131 S. Ct. 2074, 2083 (2011), the United States
       Supreme Court recently reaffirmed, albeit in a different context, that “[e]fficient and
       evenhanded application of the law demands that we look to whether the arrest is objectively
       justified, rather than to the motive of the arresting officer.”
¶ 36        We likewise reject defendant’s assertion his subjective views concerning whether he
       believed he was in custody–namely, his testimony that when he saw Renken at Morgan’s
       residence, he knew he was going to jail–are somehow dispositive, even though in other
       contexts, testimony to that effect is required. As this court noted in People v. Gorman, 207
       Ill. App. 3d 461, 469, 565 N.E.2d 1349, 1354 (1991), and People v. Goyer, 265 Ill. App. 3d
       160, 164-65, 638 N.E.2d 390, 393 (1994), a suspect’s subjective views that he believed
       himself to be in custody when the police questioned him are required as a necessary
       threshold for his motion to suppress based upon a claim that the police questioning violated


                                                 -7-
       Miranda. In Goyer, 265 Ill. App. 3d at 165, 638 N.E.2d at 393, we reaffirmed our conclusion
       in Gorman, that “when a defendant makes a motion to suppress his statements because he
       was in custody and not advised of his Miranda rights, before the trial court can conclude that
       defendant was in custody, it must first find that (1) defendant subjectively believed he was
       in custody, and (2) a reasonable person in defendant’s position, innocent of any crime, would
       also believe himself to be in custody.” See also People v. Lewis, 269 Ill. App. 3d 523, 530,
       646 N.E.2d 305, 309-10 (1995) (applying this two-pronged test). As we explained in Goyer,
       265 Ill. App. 3d at 165, 638 N.E.2d at 393, if a defendant testifies that he did not believe he
       was in custody during his questioning by the police, a trial court need not consider what a
       reasonable person in defendant’s circumstance would believe.
¶ 37        As previously noted, defendant did not testify at the hearing on the motion to suppress
       that he believed he was in custody when Renken questioned him. However, because the State
       failed to argue this threshold issue before the trial court and neither party has briefed this
       issue on appeal, we decline to address the trial court’s denial of defendant’s motion to
       suppress on this basis.
¶ 38        Here, the record shows that the trial court denied defendant’s motion to suppress because
       it found that defendant was not in custody at the time Renken placed defendant in the back
       of his squad car to transport him to the grocery store parking lot. Thus, in deciding whether
       the protections afforded under Miranda apply, we focus on whether defendant was subjected
       to restraints comparable to those associated with a formal arrest at any time between the
       initial stop and his arrest at the grocery store parking lot.
¶ 39        In this regard, the record shows that after Renken determined that defendant was in
       Morgan’s residence, he requested Morgan to ask defendant to come out so that Renken could
       speak with him. While Renken remained in the front yard, defendant voluntarily left that
       residence and made unsolicited admissions that he had been drinking and driving. These
       statements were made absent any interrogation or custody. He then voluntarily entered
       Renken’s squad car and sat uncuffed with the rear windows open, knowing that he was being
       transported a short distance to where he had parked his SUV. Based on this evidence and
       mindful of the aforementioned factors relevant to determining whether a statement was made
       in a custodial setting, we conclude that defendant was not “in custody” for Miranda
       purposes.

¶ 40                   2. Defendant’s Claim That His Blood and Urine Test
                              Results Should Have Been Suppressed
¶ 41       With regard to the toxicology test results of the blood and urine samples defendant
       provided after his arrest, he claims they were not admissible because Renken “did not tell
       [him] he could refuse to perform the tests.” We disagree and reject any notion that a
       defendant who has been arrested for a DUI offense has a right to refuse chemical testing. As
       this court noted in People v. Lynn, 388 Ill. App. 3d 272, 279, 904 N.E.2d 987, 993 (2009),
       “a person arrested for DUI has no constitutional right to refuse to submit to a Breathalyzer
       test.” See also 625 ILCS 5/11-501.1(a) (West 2008) (a person arrested for DUI “shall be
       deemed to have given consent” to chemical testing to determine his blood-alcohol level). To

                                                -8-
       the extent that defendant argues that the toxicology results of his blood and urine tests should
       have been suppressed because they were obtained after his arrest in the absence of Miranda
       warnings, we reiterate that “police inquiry into whether a suspect would submit to a blood-
       alcohol test [is] not interrogation within the meaning of Miranda.” People v. Bell, 261 Ill.
       App. 3d 980, 981, 638 N.E.2d 205, 206 (1994); see also People v. Carey, 386 Ill. App. 3d
       254, 267, 898 N.E.2d 1127, 1139 (2008) (results of a State-compelled blood-alcohol test
       constitute “real or physical evidence” not protected by a fifth-amendment privilege).

¶ 42                                   III. CONCLUSION
¶ 43      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 44       Affirmed.

¶ 45       JUSTICE COOK, specially concurring:
¶ 46       I agree that defendant’s statement that he owned the SUV was harmless error. I also agree
       that defendant had no right to refuse chemical testing. There is no need to discuss the more
       difficult issue in this case: whether defendant was in custody when he was placed in a police
       car by an officer who had arrested him on prior occasions.




                                                 -9-
