                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Price, 2011 IL App (4th) 110272




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    RYAN M. PRICE, Defendant-Appellant.



District & No.             Fourth District
                           Docket Nos. 4-11-0272, 4-11-0273 cons.


Argued                     October 19, 2011
Filed                      December 12, 2011


Held                       On appeal from defendant’s convictions for DUI and unlawful possession
(Note: This syllabus       of cannabis and drug paraphernalia, the denial of defendant’s motion to
constitutes no part of     suppress evidence was affirmed where the arresting officer was justified
the opinion of the court   in stopping defendant’s vehicle based on a reasonable suspicion that the
but has been prepared      air freshener he observed in the vehicle constituted a material obstruction
by the Reporter of         that violated section 12-503(c) of the Illinois Vehicle Code.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Livingston County, Nos. 10-CM-352,
Review                     10-DT-94 cons.; the Hon. Mark A. Fellheimer, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Ronald E. Boyer (argued), of Ronald E. Boyer, P.C., of Watseka, for
Appeal                     appellant.

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


Panel                      PRESIDING JUSTICE TURNER delivered the judgment of the court,
                           with opinion.
                           Justice Pope concurred in the judgment and opinion.
                           Justice Appleton dissented, with opinion.



                                            OPINION

¶1          In March 2011, the trial court found defendant, Ryan M. Price, guilty of driving under
        the influence (DUI), unlawful possession of drug paraphernalia, and unlawful possession of
        cannabis. The court sentenced him to 2 years of conditional discharge and 20 days in jail.
¶2          On appeal, defendant argues the trial court erred in denying his motion to suppress
        evidence and his motion to rescind the statutory summary suspension. We affirm.

¶3                                         I. BACKGROUND
¶4          On July 21, 2010, defendant received a ticket for DUI (625 ILCS 5/11-501(a)(4) (West
        2010)) following a traffic stop. In August 2010, the State charged defendant with one count
        of unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2010)), alleging
        he knowingly possessed a glass marijuana smoking pipe with the intent to use the pipe in the
        inhalation of cannabis. The State also charged him with one count of unlawful possession
        of cannabis (720 ILCS 550/4(a) (West 2010)), alleging he knowingly possessed a substance
        containing cannabis. In September 2010, the State charged defendant with driving with an
        unlawful substance (tetrahydrocannabinol metabolite) in his urine (625 ILCS 5/11-501(a)(6)
        (West 2010)).
¶5          In September 2010, defendant filed a motion to quash arrest and suppress evidence
        regarding the traffic stop of his vehicle. On September 16, 2010, defendant was given notice
        of the summary suspension of his driving privileges. In October 2010, defendant filed a
        petition to rescind the statutory summary suspension. The trial court then conducted a
        hearing on both motions.
¶6          Fairbury police officer Evan Henkel testified he observed defendant driving a Dodge
        Caravan on July 21, 2010, between approximately 8 and 10 a.m. He first noticed the vehicle
        had a broken rear taillight on the driver’s side. Henkel followed the vehicle and noticed “an

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       air freshener hanging from the rearview mirror,” which he had seen when he first saw the
       vehicle. Because of the broken taillight and the air freshener, Henkel executed a traffic stop.
       He guessed the air freshener was three inches in width and four to five inches in length. It
       was hanging from a string and the top was “approximately two or three inches below the
       bottom of the mirror.” Henkel testified he had no specific training with regard to air
       fresheners and whether they constitute a material obstruction.
¶7          Officer Henkel requested defendant’s driver’s license and proof of insurance. After
       checking the materials, Henkel advised defendant he could smell burnt cannabis inside the
       vehicle. Defendant exited the vehicle and consented to a search of his person. Henkel did not
       find any contraband on him. A search of the vehicle revealed a substance resembling
       cannabis and paraphernalia.
¶8          On cross-examination, Officer Henkel testified he observed the air freshener hanging
       from the mirror “for a great deal of time” and also saw it swaying. Based on defendant’s
       sitting position, Henkel testified the air freshener “would have to impair his ability
       to–obstruct his view.” Henkel estimated there were a minimum of five times that defendant
       would have been required to look to his right, the same direction in which the air freshener
       obstructed his view.
¶9          When Officer Henkel asked defendant whether anybody had smoked in the vehicle,
       defendant stated his brother had smoked earlier in the day. Defendant later admitted the
       vehicle contained cannabis and/or paraphernalia. A search of the vehicle revealed a green
       leafy substance believed to be cannabis along with a glass smoking pipe containing residue.
       Defendant later admitted smoking cannabis less than an hour before the stop. Henkel placed
       defendant under arrest.
¶ 10        Defendant testified the “Yankee Candle” air freshener was about three inches wide and
       four inches long. He stated it hung from a string, and the top of the cardboard was
       approximately 1.5 inches from the bottom of the mirror. Defendant did not recall the air
       freshener obstructing his view and he “never had a problem with it at all.”
¶ 11        Following closing arguments, the trial court denied defendant’s motions. The court found
       the officer had an articulable and reasonable suspicion to effectuate a stop based on the
       evidence.
¶ 12        In March 2011, the trial court found defendant guilty of DUI, possession of drug
       paraphernalia, and possession of cannabis. The court sentenced him to 2 years of conditional
       discharge and 20 days in jail. This appeal followed.

¶ 13                                     II. ANALYSIS
¶ 14      Defendant argues the trial court erred in denying his motion to suppress evidence and his
       motion to rescind his statutory summary suspension. We disagree.

¶ 15                       A. Standard of Review and Burden of Proof
¶ 16      On review of a motion to suppress, this court is presented with mixed questions of law
       and fact. People v. McQuown, 407 Ill. App. 3d 1138, 1143, 943 N.E.2d 1242, 1246 (2011).

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                “When reviewing a trial court’s ruling on a motion to suppress, we will accord great
           deference to the trial court’s factual findings and will reverse those findings only if they
           are against the manifest weight of the evidence; but we will review de novo the court’s
           ultimate decision to grant or deny the motion.” People v. Close, 238 Ill. 2d 497, 504, 939
           N.E.2d 463, 467 (2010).
¶ 17       On a motion to suppress evidence, the defendant has the burden of proving the search and
       seizure were unlawful. 725 ILCS 5/114-12(b) (West 2010); People v. Barker, 369 Ill. App.
       3d 670, 673, 867 N.E.2d 1021, 1023 (2007). “The burden of producing evidence, or the
       burden of production, rests with the defendant.” People v. Mott, 389 Ill. App. 3d 539, 542,
       906 N.E.2d 159, 163 (2009). “ ‘However, once the defendant makes a prima facie showing
       of an illegal search and seizure, the burden shifts to the State to produce evidence justifying
       the intrusion.’ ” People v. Reatherford, 345 Ill. App. 3d 327, 334, 802 N.E.2d 340, 347
       (2003) (quoting People v. Ortiz, 317 Ill. App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000)).

¶ 18                                 B. The Fourth Amendment
¶ 19        The fourth amendment to the United States Constitution guarantees “[t]he right of the
       people to be secure in their persons, houses, papers, and effects, against unreasonable
       searches and seizures.” U.S. Const., amend. IV. Similarly, the Illinois Constitution affords
       citizens with “the right to be secure in their persons, houses, papers[,] and other possessions
       against unreasonable searches [and] seizures.” Ill. Const. 1970, art. I, § 6. Our supreme court
       has interpreted the search-and-seizure clause of the Illinois Constitution in a manner
       consistent with the United States Supreme Court’s fourth-amendment jurisprudence. See
       People v. Caballes, 221 Ill. 2d 282, 335-36, 851 N.E.2d 26, 57 (2006).
¶ 20        “When a police officer observes a driver commit a traffic violation, the officer is justified
       in briefly detaining the driver to investigate the violation.” People v. Ramsey, 362 Ill. App.
       3d 610, 614, 839 N.E.2d 1093, 1097 (2005). A stop of a vehicle and the detention of its
       occupants constitutes a “seizure” under the fourth amendment. People v. Jones, 215 Ill. 2d
       261, 270, 830 N.E.2d 541, 549 (2005). Thus, “vehicle stops are subject to the fourth
       amendment’s reasonableness requirement” and are analyzed under the principles set forth
       in Terry v. Ohio, 392 U.S. 1 (1968). Close, 238 Ill. 2d at 505, 939 N.E.2d at 467. “Under
       Terry, a police officer may conduct a brief, investigatory stop of a person where the officer
       reasonably believes that the person has committed, or is about to commit, a crime.” Close,
       238 Ill. 2d at 505, 939 N.E.2d at 467.
¶ 21        To be constitutionally permissible, an “investigatory stop must be justified at its
       inception.” Close, 238 Ill. 2d at 505, 939 N.E.2d at 467. “ ‘[T]he police officer must be able
       to point to specific and articulable facts which, taken together with rational inferences from
       those facts, reasonably warrant that intrusion.’ ” Close, 238 Ill. 2d at 505, 939 N.E.2d at 467
       (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). “In judging the police officer’s conduct, we
       apply an objective standard: ‘would the facts available to the officer at the moment of the
       seizure *** “warrant a man of reasonable caution in the belief” that the action was
       appropriate?’ ” Close, 238 Ill. 2d at 505, 939 N.E.2d at 467 (quoting Terry, 392 U.S. at 21-
       22).


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¶ 22       Defendant argues the traffic stop was not justified because the evidence failed to show
       the air freshener constituted a material obstruction. We disagree.
¶ 23       The material-obstruction statute found in section 12-503(c) of the Illinois Vehicle Code
       reads as follows:
           “No person shall drive a motor vehicle with any objects placed or suspended between the
           driver and the front windshield *** which materially obstructs the driver’s view.” 625
           ILCS 5/12-503(c) (West 2010).
       Over the last several years, this court has been confronted with multiple cases concerning
       whether items hanging from a rearview mirror constitute a material obstruction.
¶ 24       In People v. Cole, 369 Ill. App. 3d 960, 963, 874 N.E.2d 81, 84-85 (2007), the defendant
       was stopped because the officer observed a single strand of opaque beads that were one-
       fourth of an inch in diameter and hanging four inches in length from the rearview mirror at
       eye level. The arresting officer, however, believed “anything suspended between the driver
       and the front windshield violated section 12-503(c).” Cole, 369 Ill. App. 3d at 966, 874
       N.E.2d at 87. The officer never testified the beads constituted a material obstruction but only
       that they “hindered [the] defendant’s ability to observe other drivers.” Cole, 369 Ill. App. 3d
       at 969, 874 N.E.2d at 89. This court noted “[a] simple hindrance or obstruction is not a
       violation of the statute.” Cole, 369 Ill. App. 3d at 969, 874 N.E.2d at 89. Because the
       arresting officer did not have a reasonable suspicion or probable cause to believe the beads
       constituted a material obstruction based on his mistake of law, this court reversed the trial
       court’s denial of the defendant’s motion to suppress. Cole, 369 Ill. App. 3d at 971, 874
       N.E.2d at 91.
¶ 25       In People v. Johnson, 384 Ill. App. 3d 409, 410, 893 N.E.2d 275, 278 (2008), the
       arresting officer stopped the defendant’s car after observing from the rear and side at night
       an air freshener shaped like two life-sized cherries hanging from the rearview mirror. The
       officer testified the air freshener created a material obstruction of the defendant’s view of the
       roadway but he did not tell that to the defendant during the stop. Johnson, 384 Ill. App. 3d
       at 411, 893 N.E.2d at 277. When confronted with photographs of the car with the air
       freshener hanging from the rearview mirror, the officer concluded the view was not
       obstructed. Johnson, 384 Ill. App. 3d at 411, 893 N.E.2d at 277. Considering at the time of
       the stop the officer did not tell the defendant the air freshener was a material obstruction, the
       officer’s fleeting view of the cherries in the dark, and the officer’s lack of understanding as
       to what constituted a material obstruction, this court affirmed the trial court’s granting of the
       motion to suppress. Johnson, 384 Ill. App. 3d at 414, 893 N.E.2d at 280.
¶ 26       In Mott, 389 Ill. App. 3d at 540, 906 N.E.2d at 161, the arresting officer pulled over the
       defendant’s vehicle, which contained a leaf-shaped air freshener hanging from the rearview
       mirror. The officer estimated the air freshener was 3½ to 4 inches wide and 4 to 5 inches tall
       and believed it hung about 1 inch below the mirror on a string which swung side to side.
       Mott, 389 Ill. App. 3d at 540, 906 N.E.2d at 161. The officer had no formal training as to
       what constituted a “material obstruction” (Mott, 389 Ill. App. 3d at 541, 906 N.E.2d at 161),
       and the trial court found the officer “mistakenly believed any object the size of a fingernail
       or larger hanging between the driver and the windshield constituted a ‘material obstruction’


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       providing reasonable suspicion for a traffic stop.” Mott, 389 Ill. App. 3d at 543, 906 N.E.2d
       at 163. Along with noting the air freshener was smaller than that estimated by the officer, the
       court found he did not testify to the relationship between the air freshener and the
       defendant’s eye level. Mott, 389 Ill. App. 3d at 541-42, 906 N.E.2d at 162.
¶ 27       In affirming the trial court’s decision to grant the motion to suppress, this court noted the
       officer “failed to articulate any specific facts giving rise to an inference [the] defendant’s
       view was obstructed.” Mott, 389 Ill. App. 3d at 544, 906 N.E.2d at 164-65. Although
       concluding the air freshener did not give rise to reasonable suspicion of a violation of section
       12-503(a) (Mott, 389 Ill. App. 3d at 547, 906 N.E.2d at 166), we did not find that it could
       never give rise to a reasonable suspicion. We quoted the trial court’s order, which stated as
       follows:
           “ ‘Illinois law does not criminalize [per se] the suspension of an object from a rearview
           mirror. It is not unusual to see objects such as necklaces, pendants, parking passes,
           souvenirs, good[-]luck charms, beads, crucifixes, St. Christopher [medals], and
           sunglasses suspended from a rearview mirror. [Section] 12-503(c) prohibits the
           suspension or placement of an object in a window “[which] materially obstructs the
           driver’s view.” ’ ” Mott, 389 Ill. App. 3d at 546, 906 N.E.2d at 165-66.
       We noted, however, “[s]ize alone does not determine whether an object materially obstructs
       the driver’s view. In our view, all of the objects listed could be material obstructions in the
       proper situation.” Mott, 389 Ill. App. 3d at 546, 906 N.E.2d at 166.
¶ 28       Here, this case is before us following the trial court’s denial of defendant’s motion to
       suppress. In making its decision on the motion, the trial court’s focus is not on “whether an
       offense was actually committed but whether an arresting officer reasonably suspected at the
       time of the stop that criminal activity was taking place or about to take place.” Cole, 369 Ill.
       App. 3d at 969-70, 874 N.E.2d at 89-90 (citing People v. Jackson, 335 Ill. App. 3d 313, 316,
       780 N.E.2d 826, 829 (2002)).
¶ 29       In the case sub judice, Officer Henkel testified he saw the air freshener as soon as he saw
       defendant’s vehicle. He estimated the air freshener to be three inches wide and four to five
       inches in length. It hung by a string, and the top was approximately two to three inches below
       the bottom of the mirror. He believed the air freshener was “at least a few inches below
       [defendant’s] eye level” and he saw it swaying. From defendant’s sitting position, Henkel
       believed “[i]t would have to impair his ability to–obstruct his view.” He estimated defendant
       passed at least five intersections that would require him to look to the right and in the path
       of the air freshener.
¶ 30       In its findings of fact, the trial court found the air freshener was about three inches wide
       and three to four inches high and hung by an elastic string. The top was about two inches
       below the mirror. The court also found Henkel believed the air freshener did constitute a
       material obstruction based upon its placement in the vehicle and in relation to defendant’s
       eye level. The court stated it reviewed the Cole, Johnson, and Mott opinions and found
       Officer Henkel’s recitation of the facts and details as to why the air freshener constituted a
       material obstruction was sufficient to establish a reasonable suspicion of a material
       obstruction.


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¶ 31       Here, the evidence sufficiently established Officer Henkel had a reasonable suspicion that
       the air freshener constituted a material obstruction thereby justifying the traffic stop. Henkel
       testified to the size of the air freshener, how it swayed back and forth, and that it would have
       obstructed defendant’s view based on his sitting position. Henkel did not testify he pulled
       defendant over simply because he had an air freshener hanging from his rearview mirror.
       Moreover, he was not mistakenly of the view that anything larger than a fingernail (see Mott,
       389 Ill. App. 3d at 541, 906 N.E.2d at 162) constituted a material obstruction. Instead, he had
       a good view of the air freshener and testified to specific facts as to why he believed it
       constituted a material obstruction. The video entered into evidence shows the air freshener
       hanging down from the mirror and swaying side to side. Given Henkel’s observations and
       the video evidence, a reasonable officer could conclude the air freshener violated section 12-
       503(c). See United States v. Garcia-Garcia, 633 F.3d 608, 616 (7th Cir. 2011) (noting a
       “reasonable belief is all that is needed to justify the warrantless stop”). Because we have
       found a reasonable suspicion existed based on the material obstruction, we need not address
       defendant’s claim that the traffic stop was not justified because of the broken taillight lens.

¶ 32                                   III. CONCLUSION
¶ 33      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 34       Affirmed.

¶ 35       JUSTICE APPLETON, dissenting:
¶ 36       I respectfully dissent based on this court’s previous treatment of hanging obstructions,
       which may or may not “materially” obstruct a driver’s view through a vehicle’s windshield.
       See People v. Mott, 389 Ill. App. 3d 539, 547 (2009); People v. Johnson, 384 Ill. App. 3d
       409, 414 (2008); and People v. Cole, 369 Ill. App. 3d 960, 971 (2007).
¶ 37       It is apparent from these cases that materiality of the obstruction is key to the resolution
       of the question of whether a stop by a police officer and, of course, a subsequent search is
       valid within the confines of the fourth amendment. Mott, 389 Ill. App. 3d at 544.
¶ 38       In this regard, it is impossible for the trial court to make a “materiality” determination
       without seeing the offending air freshener and without observing the object hanging from the
       rearview mirror. The burden of proving materiality is on the State if the stop is to be justified.
       Mott, 389 Ill. App. 3d at 544. While I grant that materiality is, in large part, a subjective
       determination, our previous cases cited above call into question a per se approach to items
       hanging from the rearview mirror.
¶ 39       I would assume the legislature enacted section 12-503(c) of the Vehicle Code (625 ILCS
       5/12-503(c) (West 2010)) for purposes of achieving the goal of traffic safety, an admittedly
       laudable purpose. As our previous decisions have shown, as does the record in this case, the
       statute is being abused to achieve traffic stops where no other probable cause exists. I would
       grant the reversal of the finding of probable cause in this case.


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