                                    2013 IL App (3d) 110477

                          Opinion filed February 22, 2013
______________________________________________________________________________

                                            IN THE

                              APPELLATE COURT OF ILLINOIS

                                       THIRD DISTRICT

                                   A.D., 2013
______________________________________________________________________________

THE PEOPLE OF THE STATE             )     Appeal from the Circuit Court
OF ILLINOIS                         )     for the 14th Judicial Circuit,
                                    )     Whiteside County, Illinois,
      Plaintiff-Appellee,           )
                                    )     Appeal No. 3-11-0477
      v.                            )     Circuit No. 10 CM 409
                                    )
DANIEL SMITH,                       )     The Honorable
                                    )     Michael R. Albert,
      Defendant-Appellant.          )     Judge, Presiding.
______________________________________________________________________________

      JUSTICE McDADE delivered the judgment of the court, with opinion.
      Justices Carter and Holdridge specially concurred, with opinion.
______________________________________________________________________________

                                           OPINION

¶1     Defendant, Daniel Smith, appeals his conviction and sentence for obstructing a peace

officer. We affirm defendant's conviction, vacate his sentence, and remand to the circuit court

for further proceedings.

¶2                                           FACTS

¶3     Defendant was charged with one count of obstructing a peace officer and one count of

resisting a peace officer. The conviction on the resisting count has not been challenged on

appeal. The pertinent section of the complaint alleged:
                       "Defendant committed the offense of OBSTRUCTING A

               PEACE OFFICER, in that said Defendant knowingly obstructed

               the performance of Jacob Reul of an authorized act within his

               official capacity, being the arrest of Daniel E. Smith, knowing

               Jacob Reul to be a peace officer engaged in the execution of his

               official duties, in that he exited his vehicle during a traffic stop ***

               and refused to return to the vehicle in violation of Chapter 720, Act

               5, Section 31-1, Illinois Compiled Statutes."

¶4     The matter proceeded to a jury trial. Jacob Reul, an officer with the Sterling police

department, testified that he stopped Smith's vehicle in front of his house for speeding. Reul

informed defendant that he would be receiving a ticket for speeding and directed him to stay in

his vehicle.

¶5     Upon returning to his squad car, Reul took approximately 20 minutes to run defendant's

information and prepare a traffic citation. However, before he was able to sign the citation,

defendant exited his vehicle carrying a grocery bag. Even though Reul instructed defendant to

return three to five separate times, defendant refused to comply. Instead, defendant complained

told Reul that Reul was taking too long and that defendant was going into his house to put away

his cold groceries and check on his children , who were home alone. Reul grabbed defendant's

arm and told him to return to his vehicle or he would be placed under arrest. When defendant

again refused to comply, Reul told defendant he was under arrest. At that time, defendant

tightened his arm and pulled away. Reul placed defendant into an "arm bar" hold and swept his

feet out from under him, taking defendant to the ground. Reul testified that because defendant


                                                  2
would not put his hands behind his back, he had no choice but to use pepper spray. Ultimately, a

second officer arrived and defendant was placed in handcuffs.

¶6     Maggie Ellmaker, an officer with the Sterling police department, testified that when she

arrived at the scene of the incident, Reul was "in a fight" with defendant, who was facedown on

the ground on his chest. Reul was on defendant's back, and defendant was trying to push off the

ground with his legs. Ellmaker grabbed defendant's arm and helped get him handcuffed.

¶7     Defendant moved for a directed verdict on the obstructing charge (count I). Defendant

argued that there was no showing that he had obstructed Reul because, except for the signature,

the citation was complete at the time defendant exited his car. The court denied the motion,

noting that defendant had obstructed Reul by not obeying the order to return to his car.

¶8     Defendant's daughter testified that she observed the incident from the front window of the

family's residence. She saw an officer back defendant up against his vehicle, sit defendant on the

ground, place defendant in a choke hold, and spray defendant with pepper spray. Defendant's

wife did not witness the incident; however, she testified that defendant is not a violent person.

¶9       Defendant testified that he is an assistant manager at a dollar store and he was on his

way home from work when he was pulled over in front of his residence by Reul. Defendant

admitted he was speeding. Defendant gave Reul the information that was requested and waited

in his car. Defendant alleges Reul did not instruct him to stay in his vehicle and the temperature

was approximately 100 degrees at the time defendant was pulled over. While he waited in his

vehicle, he started getting very hot and feeling sick. He did not have his vehicle's air

conditioning on because he did not want to run out of gas.

¶ 10   After about 20 minutes, defendant exited the vehicle in order to check on his children


                                                  3
who were home alone and to place his cold and frozen grocery items in the refrigerator. Reul

exited his squad car, grabbed defendant's wrist, and backed defendant up against his vehicle.

Defendant told Reul that he would return to his vehicle, but would stand outside of it because it

was so hot. Reul tried to sweep defendant's feet out from under him, but ended up just kicking

defendant's leg. Reul then forced defendant to the ground and sat on him. Defendant said he was

having problems breathing. Defendant also testified that Reul tried to force defendant's arms

behind his back, but his arms would not bend at that angle because of a prior shoulder or rotator

cuff injury he had suffered. Reul then placed defendant in a choke hold and sprayed him with

pepper spray. Defendant admitted trying to push up on his knees, explaining that he was having

breathing problems.

¶ 11    Defendant was convicted of both obstructing a peace officer and resisting a peace officer.

The circuit court imposed a sentence of 48 consecutive hours in the county jail on each count to

be served concurrently. Defendant requested credit for two days of time already served. The

court denied defendant's request because "they were not consecutive days." A motion to stay

sentence pending appeal was granted.

¶ 12                                    ANALYSIS

¶ 13    Defendant argues that we must vacate his conviction for obstructing a peace officer on the

ground that there was a fatal variance between the charge in the complaint and the proof adduced

at trial. The complaint charged defendant with obstructing his own arrest by exiting his vehicle

and refusing to return to it. In his initial brief, defendant calls our attention to the fact that

evidence at trial established that defendant was not under arrest at the time he exited the vehicle.

Specifically, it states:


                                                    4
                        "Recognizing that defendant was not under arrest at the

                 time he exited his vehicle and refused the officer's requests to

                 return, the State switched its theory at trial. Specifically, defense

                 counsel made a motion for directed verdict and argued that

                 defendant could not have obstructed his arrest as charged in Count

                 I because he had not been placed under arrest at that time. The

                 State responded that defendant obstructed the officer's preparation

                 of the traffic citation because the officer had not signed his name to

                 the citation yet and therefore had not completed the authorized act

                 of writing the citation. Thus, the State evidence and argument at

                 trial differed from what was charged in the complaint."

¶ 14   A defendant is only entitled to a new trial if he can show (1) that a variance existed

between the allegations in a complaint and proof at trial, and (2) that said variance was fatal to

his conviction. People v. Collins, 214 Ill. 2d 206, 219 (2005). A variance between allegations in

a complaint and proof at trial is fatal to a conviction if the variance is material and could mislead

the accused in making his defense. Collins, 214 Ill. 2d at 219.

¶ 15   The parties initially dispute whether a variance even exists. The State alleges that

defendant was under arrest at the time Reul informed him that he would be receiving a citation.1

Under this interpretation no variance would exist between the complaint and the proof at trial.


       1
           While we acknowledge that defendant testified he was never told to stay in the vehicle

while the citation was being prepared, we are compelled to accept Reul's contrary testimony in

light of our standard of review. See People v. Collins, 106 Ill. 2d 237, 261 (1985).

                                                    5
Defendant, however, contends that he was merely seized at this point, as defined in Terry v.

Ohio, 392 U.S. 1 (1968).

¶ 16    There is no bright-line test for distinguishing between a Terry stop and a custodial arrest.

People v. Arnold, 394 Ill. App. 3d 63, 70 (2009). Whether an encounter constitutes an arrest or a

Terry stop "depends on the degree of the intrusion or coerciveness surrounding the detention."

People v. Carlson, 307 Ill. App. 3d 77, 80 (1999). For example, the use of handcuffs to restrain

the person being detained is an indication that the detention is an arrest rather than a Terry stop.

People v. Gabbard, 78 Ill. 2d 88, 93 (1979). While the determinative test is subjective, the

supreme court has held that the essential elements of an arrest are (1) the intent of the police to

make the arrest, and (2) the defendant's understanding, based on an objective standard of

reasonableness, that he is in fact under arrest. People v. Johnson, 159 Ill. 2d 97, 116 (1994).

¶ 17    A review of the parties' cited cases reveals an apparent split of authority on the issue of

whether a person stopped for a minor traffic violation is under arrest or merely seized. The

defendant cites People v. Gilbert, 347 Ill. App. 3d 1034 (2004). The Gilbert court held that "a

reasonable person, when stopped for a minor traffic violation, would not view himself as being

under arrest but merely temporarily stopped." Gilbert, 347 Ill. App. 3d at 1040. In response, the

State cites People ex rel Ryan v. Village of Hanover Park, 311 Ill. App. 3d 515 (1999) (defendant

considered under arrest when stopped by municipal police officer for a traffic violation), People

v. Stewart, 242 Ill. App. 3d 599 (1993) (defendant's arrest occurred at the time officer advised

defendant that a citation would be issued to him for speeding), and People v. Kinney, 189 Ill.

App. 3d 952 (1989) (defendant arrested when officer stopped defendant's vehicle intending to

issue defendant a traffic citation).


                                                  6
¶ 18   While we acknowledge the apparent split of authority, we need not answer the precise

question of whether defendant was under arrest or merely seized at the time Reul informed him

that he would be receiving a citation. Even if we were to accept defendant's argument that he

was merely seized and thus a variance did exist between the charge in the complaint and the

proof adduced at trial, the variance is not fatal to defendant's conviction. The evidence at trial

did establish an act from which the jury could have found the defendant guilty of obstructing a

peace officer.

¶ 19   Article 31 of the Criminal Code of 1961 (the Code) addresses various offenses related to

interference with public officers. Section 31-1(a) specifically relates to resisting or obstructing a

peace officer and provides:

                 "A person who knowingly resists or obstructs the performance by

                 one known to the person to be a peace officer *** of any

                 authorized act within his official capacity commits a Class A

                 misdemeanor." 720 ILCS 5/31-1(a) (West 2010).

¶ 20   Here, the State did not need to establish that defendant was under arrest to secure a

conviction for obstructing a peace officer. Instead, the State needed to prove only that: (1)

defendant knowingly obstructed a peace officer; (2) the officer was performing an authorized act

in his official capacity; and (3) defendant knew he was a peace officer.

¶ 21   In the instant case, Reul pulled defendant over with his squad car while on duty. Reul

informed defendant that he was going to issue him a speeding citation. Clearly, defendant knew

Reul was a peace officer and was performing an act within his official capacity – issuing

defendant a speeding citation. With this knowledge defendant got out of his vehicle and refused


                                                  7
Reul's commands to get back into the vehicle, thereby disrupting and impeding Reul in the

performance of an official duty. The complaint accurately stated the actual obstructing conduct –

"he exited his vehicle during a traffic stop *** and refused to return to the vehicle." Even

assuming the complaint inaccurately stated the official act Reul was performing at the time

defendant engaged in such conduct – arresting defendant vs. issuing the citation – this variance

did not mislead the defendant in making his defense in light of the fact that the record establishes

that defendant knew he was being issued a citation and also that Reul was still in the process of

issuing the citation.

¶ 22    In reaching our decision, we reject defendant's assertion that simply exiting his vehicle

and refusing to return does not constitute obstructive behavior. Recently, the supreme court in

People v. Baskerville, 2012 IL 111056, ¶ 19 explained:

                        "The term 'obstruct' is not defined in section 31-1. When a

                statutory term is not expressly defined, it is appropriate to denote

                its meaning through its ordinary and popularly understood

                definition. [Citation.] At the time the statute was adopted, the

                dictionary defined 'obstruct' to mean '1 : to block up : stop up or

                close up : place an obstacle in or fill with obstacles or impediments

                to passing *** 2 : to be or come in the way of : hinder from

                passing, action, or operation : IMPEDE ***.' [Citation.] In turn,

                'hinder' means 'to make slow or difficult the course or progress of'

                [citation], and 'impede' means "to interfere with or get in the way

                of the progress of' [citation]. Applying the dictionary definition, it


                                                  8
                 is evident that 'obstruct' encompasses physical conduct that literally

                 creates an obstacle, as well as conduct the effect of which impedes

                 or hinders progress."

¶ 23   Disobeying an officer's command and refusing to further comply can be included in the

above definition, as it can undoubtedly interfere with the completion of an officer's duty. The

fact that the actual citation was complete, absent Reul's signature, is of no consequence as Reul

was clearly still in the process of issuing the citation. The evidence, when taken in the light most

favorable to the State, establishes that the defendant possessed the requisite mental state while

committing an act sufficient to support his conviction for obstructing a peace officer.

¶ 24   Finally, defendant maintains that he is entitled to two days' credit against his sentence for

time he spent in custody prior to sentencing.2 The trial court denied defendant's credit request

because the days he spent in custody prior to sentencing were "not consecutive days." Upon

review, we find section 5-4.5-100(b) of the Unified Code of Corrections requires defendant be

awarded two days' credit.

¶ 25   Section 5-4.5-100(b) of the Unified Code of Corrections,3 entitled "Calculation of Term

of Imprisonment," provides:

                        "(b) CREDIT; TIME IN CUSTODY; SAME CHARGE.


       2
           Whether defendant should receive presentence custody credit against his sentence is a

question of law subject to de novo review. People v. Johnson, 401 Ill. App. 3d 678, 680 (2010).
       3
           Section 5-4.5-100 was enacted in 2009 as part of several amendments to the Unified

Code of Corrections. Prior to the amendment, the same provisions were found in section 5-8-7,

now repealed.

                                                   9
              ***[T]he offender shall be given credit on the determinate

              sentence or maximum term and the minimum period of

              imprisonment for time spent in custody as a result of the offense

              for which the sentence was imposed, at the rate specified in Section

              3-6-3 (730 ILCS 5/3-6-3). Except when prohibited by subsection

              (d), the trial court may give credit to the defendant for time spent in

              home detention, or when the defendant has been confined for

              psychiatric or substance abuse treatment prior to judgment, if the

              court finds that the detention or confinement was custodial." 730

              ILCS 5/5-4.5-100(b) (West 2010).

¶ 26   Section 531-1(a-5) of the Criminal Code of 1961, provides:

                      "(a-5) In addition to any other sentence that may be

              imposed, a court shall order any person convicted of resisting or

              obstructing a peace officer *** to be sentenced to a minimum of 48

              consecutive hours of imprisonment or ordered to perform

              community service for not less than 100 hours as may be

              determined by the court. The person shall not be eligible for

              probation in order to reduce the sentence of imprisonment or

              community service." (Emphasis added.) 720 ILCS 5/31-1(a-5)

              (West 2010).

¶ 27   The court ordered defendant to serve 48 consecutive hours of imprisonment. Thus, it

complied with the mandate prescribed in section 531-1(a-5). However, the court failed to


                                                10
comply with section 5-4.5-100(b)'s mandate that defendant be given credit for presentence

custody. Subsections (d) and (e) of section 5-4.5-100 expressly provide for exclusion of credit in

certain circumstances, neither of which is applicable in the instant case.4 Thus, defendant was

entitled to two days' credit under section 5-4.5-100(b). People v. Smith, 258 Ill. App. 3d 261,

267 (1994) ("A defendant held in custody for any part of the day should be given credit against

his sentence for that day.") The fact that defendant did not serve these two days consecutively is

irrelevant. Section 531-1(a-5) merely requires that defendant be ordered to serve 48 consecutive

hours.


         4
             "(d) NO CREDIT; SOME HOME DETENTION. An offender sentenced to a term of

imprisonment for an offense listed in paragraph (2) of subsection (c) of Section 5-5-3 (730 ILCS

5/5-5-3) or in paragraph (3) of subsection (c-1) of Section 11-501 of the Illinois Vehicle Code

(625 ILCS 5/11-501) shall not receive credit for time spent in home detention prior to judgment.

         (e) NO CREDIT; REVOCATION OF PAROLE, MANDATORY SUPERVISED

RELEASE, OR PROBATION. An offender charged with the commission of an offense

committed while on parole, mandatory supervised release, or probation shall not be given credit

for time spent in custody under subsection (b) for that offense for any time spent in custody as a

result of a revocation of parole, mandatory supervised release, or probation where such

revocation is based on a sentence imposed for a previous conviction, regardless of the facts upon

which the revocation of parole, mandatory supervised release, or probation is based, unless both

the State and the defendant agree that the time served for a violation of mandatory supervised

release, parole, or probation shall be credited towards the sentence for the current offense." 730

ILCS 5/5-4.5-100(d), (e) (West 2010).

                                                11
¶ 28   Justice Carter agrees with the above holding regarding defendant's sentence; however, he

believes that this issue "must be resolved in light of the County Jail Good Behavior Allowance

Act" (Behavior Allowance Act) (730 ILCS 130/3 (West 2010)). Infra, ¶33. Initially, we note

that neither party raised any issue in the trial court or here on appeal with regard to the Behavior

Allowance Act. Thus, we find any analysis under the Behavior Allowance Act inappropriate.

Substantively, however, we hold the Behavior Allowance Act has no bearing on the present

appeal as it only applies to situations where there is a "mandatory minimum" sentence.

¶ 29   The Behavior Allowance Act provides that persons jailed for offenses "for which the law

provides a mandatory minimum sentence" cannot be given any good-behavior allowance which

"would reduce the sentence below the mandatory minimum." 730 ILCS 130/3 (West 2010). The

instant case does not present us with such a situation in light of the fact that relevant sentencing

statute grants the trial court discretion to impose community service as opposed to imprisonment

alone. See 720 ILCS 5/31-1(a-5) (West 2010). Hence, there is no "mandatory minimum" and

the Behavior Allowance Act is inapplicable.

¶ 30   For the foregoing reasons, we affirm defendant's conviction for obstructing a peace

officer, vacate his sentence for that offense, and remand to the circuit court for further

proceedings.

¶ 31   Affirmed in part and vacated in part; cause remanded.

¶ 32   JUSTICE CARTER, specially concurring.

¶ 33   I agree with the majority's conclusion on the first issue that there was no fatal variance in

the present case. I also agree with the majority's conclusion on the second issue that defendant is

entitled to credit for two days actually served. However, contrary to the arguments of the parties


                                                 12
and the majority's analysis, I believe that this issue must be resolved in light of the County Jail

Good-Behavior Allowance Act (Act) (730 ILCS 130/3 (West 2010)), which applies anytime a

defendant is sentenced to serve time in a county jail. The Act prohibits an award of a good

behavior allowance that would reduce a sentence below the mandatory minimum. 730 ILCS

130/3 (West 2010); People ex rel. Birkett v. Jorgensen (Birkett), 216 Ill. 2d 358, 360-61 (2005).

Although the Act and the Birkett case would seem to require that the instant defendant be denied

good-time credit (see 730 ILCS 130/3 (West 2010); Birkett, 216 Ill. 2d at 363-65), I believe that

the intent of the Act has been satisfied here since the record shows that the instant defendant

served two actual days in custody. See In re S.B., 2012 IL 112204, ¶ 28 (the court had the

authority to read into a statute language omitted by oversight, which was plainly implied by the

general context of the act and which was necessary to prevent the legislative purpose from failing

in one of its material aspects).

¶ 34    For the reasons stated, I specially concur with the majority’s opinion.

¶ 35    JUSTICE HOLDRIDGE, specially concurring.

¶ 36    I agree that the defendant's conviction for obstructing a peace officer should be affirmed.

However, I would uphold the conviction on different grounds than those relied upon by the majority.

In my view, there was no variance of any kind between the charge and the proof presented at trial.

Count I of the criminal complaint charged that the defendant knowingly obstructed his "arrest" by

exiting his vehicle during a traffic stop and refusing to return to the vehicle. An "arrest" occurs when

a person's freedom of movement has been restrained by means of physical force or show of authority.

People ex rel. Ryan v. Village of Hanover Park, 311 Ill. App. 3d 515, 531 (1999). In determining

whether a person has been arrested, the relevant inquiry is "whether a reasonable, innocent person


                                                  13
in his situation would conclude that he was not free to leave." (Internal quotation marks omitted.)

Id. If a reasonable person would not feel free to leave due to a show of authority by a police officer,

then the person has been "arrested," even if he has not been taken into custody. Id. Applying these

standards, our appellate court has held that a motorist is "under arrest" during a traffic stop when a

police officer advises the defendant that the officer will be issuing him a traffic citation for a

violation of the Illinois Vehicle Code, such as speeding.5 Id.; People v. Stewart, 242 Ill. App. 3d

599, 604 (1993); People v. Kinney, 189 Ill. App. 3d 952, 955 (1989). This rule is logical because,

when a police officer advises a motorist that he will be receiving a ticket, a reasonable person "does

not feel that he can leave until issuance of the ticket and permission to leave is given." Village of

Hanover Park, 311 Ill. App. 3d at 531.

¶ 37   Thus, in this case, the defendant was under arrest at the time Officer Reul informed him that

he would be receiving a ticket for speeding and directed him to remain in his vehicle. By exiting his

vehicle before Officer Reul issued the ticket, the defendant obstructed his "arrest," just as the

criminal complaint alleged. There was, therefore, no variance between the charge and the evidence

adduced at trial.

¶ 38   Justice McDade states that there is an "apparent split of authority on the issue of whether a

person stopped for a minor traffic violation is under arrest or merely seized." Supra ¶ 17; see also

supra ¶ 18. Specifically, the majority maintains that Village of Hanover Park, Stewart, and Kinney

conflict with People v. Gilbert, 347 Ill. App. 3d 1034, 1040 (2004), which states that "a reasonable

person, when stopped for a minor traffic violation, would not view himself as being under arrest but


       5
           Until that moment, an ordinary traffic stop is more analogous to a Terry investigative

stop than to a formal arrest. People v. Gonzalez, 204 Ill. 2d 220, 226 (2003).

                                                  14
merely temporarily stopped." See supra ¶ 17. In my view, that is a red herring. In this case, the

relevant question is not whether a motorist is arrested when he is stopped for a minor traffic

violation. Rather, the question is whether a motorist is arrested when a police officer advises the

motorist that he will be receiving a ticket and tells him to remain in his car. Each of the cases that

have addressed the latter question has answered it in the affirmative. Stewart, 242 Ill. App. 3d at

604; Kinney, 189 Ill. App. 3d at 955; Village of Hanover Park, 311 Ill. App. 3d at 531. Gilbert

involved materially different circumstances. In Gilbert, the police officer issued a warning ticket,

not a traffic citation. Gilbert, 347 Ill. App. 3d at 1040. In so doing, the officer in Gilbert "elect[ed]

not to enforce the traffic law" and "display[ed] his intent not to make a formal arrest for the traffic

violation." Id. Thus, the very thing that was held to trigger an "arrest" in Village of Hanover Park,

Stewart, and Kinney—i.e., the police officer's communication of an intent to issue a traffic

citation—was absent in Gilbert. Gilbert is therefore distinguishable from the instant case and from

Village of Hanover Park, Stewart, and Kinney. In my view, there is no split of authority on the

central question presented in this appeal. Each of the relevant cases supports the conclusion that the

defendant was arrested.

¶ 39    To be clear, in my view, the relevant question is not whether a custodial arrest occurred in

this case. It clearly did not. The question is whether a reasonable, innocent person in the defendant's

position would have felt free to leave. As noted, Officer Reul told the defendant that he would be

receiving a ticket and ordered him to remain in his car. At that point, no reasonable person in the

defendant's position would have felt free to leave. Accordingly, the defendant was arrested at that

time even though he had not yet been taken into custody.6


        6
            This does not mean, however, that every motorist who is issued a traffic citation is

                                                   15
¶ 40     In my view, the evidence in this case demonstrates that the defendant was arrested and that

he knowingly obstructed his arrest, as charged in the criminal complaint. I would hold that there was

no variance between the charge and the proof, and I would affirm the defendant's conviction on that

basis.

¶ 41     As to the second issue raised in this appeal, I agree that the defendant's sentence should be

vacated for the reasons set forth by Justice McDade, and I concur fully with her analysis of that issue.




automatically subject to a search incident to arrest. The United States Supreme Court has held

that the issuance of a traffic citation, without more, does not justify a search incident to arrest

because the rationales supporting such a search (officer safety and the need to preserve evidence)

are not implicated when an officer issues a citation for a routine, already completed traffic

offense such as speeding. Knowles v. Iowa, 525 U.S. 113, 116-18 (1998); see generally People v.

Jones, 215 Ill. 2d 261, 271 (2005).

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