                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Fitzpatrick, 2011 IL App (2d) 100463




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     LEWIS C. FITZPATRICK, Defendant-Appellant.


District & No.              Second District
                            Docket No. 2-10-0463


Filed                       November 3, 2011


Held                        The trial court did not err in denying defendant’s motion to quash his
(Note: This syllabus        arrest and suppress the cocaine discovered in a search conducted
constitutes no part of      following his arrest for violating the Vehicle Code by walking in the
the opinion of the court    middle of a public road, notwithstanding defendant’s contention that a
but has been prepared       custodial arrest and a subsequent search for a petty offense violates the
by the Reporter of          state constitution’s prohibition against unreasonable searches and
Decisions for the           seizures, since the United States Supreme Court held in Atwater that a
convenience of the          custodial arrest for a misdemeanor punishable by a fine only does not
reader.)
                            violate the federal constitution’s prohibition against unreasonable
                            searches and seizures, and pursuant to the lockstep doctrine, the trial
                            court’s decision would be affirmed, but the order requiring defendant to
                            pay for the services of a public defender was vacated and the cause was
                            remanded for a hearing on his ability to pay.
Decision Under              Appeal from the Circuit Court of Lake County, No. 09-CF-2926; the
Review                      Hon. George Bridges, Judge, presiding.


Judgment                    Affirmed in part and vacated in part; cause remanded.
Counsel on                  Thomas A. Lilien and Barbara R. Paschen, both of State Appellate
Appeal                      Defender’s Office, of Elgin, for appellant.

                            Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                            and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                            Justices Bowman and Birkett concurred in the judgment and opinion.



                                               OPINION

¶1          Following a stipulated bench trial in the circuit court of Lake County, defendant, Lewis
        C. Fitzpatrick, was found guilty of possession of a controlled substance and was sentenced
        to a three-year prison term. On appeal, defendant argues that the trial court erred in denying
        his motion to quash his arrest and suppress evidence. He further argues that the trial court
        erred in ordering him to pay $750 to reimburse the Lake County public defender for services
        performed before he retained a private attorney. We affirm the denial of the motion to quash
        and suppress. We vacate the order requiring defendant to reimburse the public defender, and
        we remand for a hearing to determine defendant’s ability to pay for the public defender’s
        services.
¶2          Defendant was placed under arrest after a police officer observed him walking in the
        middle of a public road on July 23, 2009. Section 11-1007 of the Illinois Vehicle Code
        provides that, where a sidewalk is provided and its use is practicable, a pedestrian may not
        walk upon the adjacent roadway. 625 ILCS 5/11-1007(a) (West 2008). Where no sidewalk
        is provided a pedestrian must walk on the shoulder as far as practicable from the edge of the
        roadway. 625 ILCS 5/11-1007(b) (West 2008). Where neither a sidewalk nor a shoulder is
        available, a pedestrian must walk as near as practicable to an outside edge of the roadway.
        625 ILCS 5/11-1007(c) (West 2008). A violation of section 11-1007 is a petty offense (625
        ILCS 5/11-202 (West 2008)).1 (According to the arresting officer’s testimony at the hearing
        on defendant’s motion to quash and suppress, defendant’s conduct also violated an
        unspecified ordinance.) The arresting officer searched defendant’s pockets at the scene but
        found nothing. Defendant was searched again at the police station, and cocaine was
        discovered in his sock.


                1
                In his brief, defendant contends that a petty offense is one for which only a fine may be
        imposed. That was true prior to July 1, 2009, but those committing petty offenses on or after that
        date may also be sentenced to probation or conditional discharge. 730 ILCS 5/5-1-17, 5-4.5-75 (West
        2008).

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¶3        Defendant argues on appeal that a custodial arrest for a petty offense violates our state
     constitution’s prohibition against unreasonable searches and seizures (Ill. Const. 1970, art.
     I, § 6). In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the United States Supreme
     Court held that a custodial arrest for a misdemeanor punishable by a fine only does not run
     afoul of the United States Constitution’s prohibition against unreasonable searches and
     seizures. At issue in this appeal is whether the corresponding provision of our state
     constitution should be interpreted the same way. This court has expressed divergent views
     on the issue.
¶4        The constitutionality of a custodial arrest for a petty offense was a tangential issue in
     People v. Moorman, 369 Ill. App. 3d 187 (2006), which was decided by a divided panel of
     this court. The majority took the view that our supreme court’s holdings in two post-Atwater
     cases–People v. Cox, 202 Ill. 2d 462 (2002), and People v. Jones, 215 Ill. 2d 261
     (2005)–were “inconsistent with the central holding of Atwater.” Moorman, 369 Ill. App. 3d
     at 197. However, in People v. Taylor, 388 Ill. App. 3d 169 (2009), a different panel of this
     court held that our state constitution places no greater limits than does the United States
     Constitution on a police officer’s authority to arrest one who has committed a petty offense.2
¶5        In Cox, a police officer stopped the defendant’s vehicle because it did not have a rear
     registration light. Although there was nothing to indicate that the defendant was involved in
     any drug-related activity, the officer requested that another officer bring a drug-sniffing dog
     to the scene. The dog arrived about 15 minutes later and alerted to the presence of drugs. The
     defendant was frisked and her vehicle was searched. The Cox court observed:
              “When a police officer observes a driver commit a traffic violation, the officer is
          justified in briefly detaining the driver to investigate the violation. [Citations.] The
          officer may perform some initial inquiries, check the driver’s license, and conduct a
          speedy warrant check. [Citations.] If no further suspicion is aroused in the officer
          following these inquiries, the traffic stop should go no further. [Citations.] The officer
          should issue a warning ticket or a citation, as appropriate, and allow the driver to leave.
          [Citation.]” Cox, 202 Ill. 2d at 468.
¶6        The Cox court reasoned that bringing the drug-sniffing dog to the scene unreasonably
     prolonged the detention. Id. at 470. The majority in Moorman read the above language as an
     implicit rejection of Atwater. The majority noted that the Cox court was aware of Atwater,
     which was discussed in a dissent by Justice Thomas. Justice Thomas lamented that a 15-
     minute time limit on traffic stops would lead officers to exercise their authority under
     Atwater to take petty offenders into custody, with such an arrest serving as a pretext to search
     the arrestee’s person and vehicle. In Taylor, this court found the Moorman majority’s
     reasoning unpersuasive because “[t]he mere lack of an explanation in Cox as to how its
     decision was consistent with Atwater does not lead to the conclusion that the supreme court


             2
              Justice Hutchinson agreed with the majority’s constitutional analysis. However, because
     she believed that the defendant’s arrest violated a supreme court rule, Justice Hutchinson dissented
     from the majority’s decision to uphold a search incident to the defendant’s arrest. Taylor, 388 Ill.
     App. 3d at 180 (Hutchinson, J., dissenting).

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     found that it was not the law in this state.” Taylor, 388 Ill. App. 3d at 177. We agree. In
     Moorman, the majority inferred that the Cox majority had shrugged off the dissent’s concerns
     without comment because the Cox majority concluded that the premise of the dissent’s
     argument–that custodial arrests for petty offenses are permissible in Illinois–was faulty. On
     the other hand, the Cox majority might have agreed with the dissent’s understanding of
     Atwater, but might nonetheless have been less troubled than the dissent about the mischief
     (an epidemic of pretextual arrests) that might ensue as a result of its decision. It is possible
     only to speculate why the Cox majority was unmoved by the dissent’s argument.
¶7       In Jones, our supreme court indicated that, although a police officer had probable cause
     to stop the defendant for a minor traffic violation, the officer did not have authority to search
     the defendant or the vehicle. The Jones court relied in part on Knowles v. Iowa, 525 U.S. 113
     (1998), which held that a police officer could not conduct a search after issuing a citation in
     connection with a routine traffic stop. Citing Knowles, the Jones court stated, “Stopping an
     automobile for a minor traffic violation does not, by itself, justify a search of the detainee’s
     person or vehicle. The officer must reasonably believe that he or she is confronting a
     situation more serious than a routine traffic violation.” Jones, 215 Ill. 2d at 271.3 Noting that
     an officer who makes an arrest is authorized to search the person of the arrestee (see Chimel
     v. California, 395 U.S. 752 (1969)), the majority in Moorman reasoned that, in Jones, the
     officer’s lack of authority to conduct a search “necessarily means that he also lacked the
     authority to arrest the defendant.” Moorman, 369 Ill. App. 3d at 198. However, in Taylor,
     this court disagreed, correctly observing that “since the officer in Jones did not initially arrest
     the defendant for the traffic violation, the issue of a lawful search incident to custodial arrest
     never arose.” Taylor, 388 Ill. App. 3d at 177. For these reasons, the Taylor court properly
     concluded that neither Cox nor Jones can be read to hold that our state constitution forbids
     arrests for minor traffic violations. We reject statements in Moorman to the contrary.
¶8        Illinois follows a “limited lockstep” approach to interpreting state constitutional
     guarantees that correspond to rights secured by the United States Constitution. People v.
     Caballes, 221 Ill. 2d 282, 309-10 (2006). State constitutional provisions will be interpreted
     in harmony with their counterparts in the United States Constitution unless “ ‘a specific
     criterion–for example, unique state history or state experience–justifies departure from
     federal precedent.’ ” Id. at 309-10 (quoting Lawrence Friedman, The Constitutional Value
     of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93, 104 (2000)).


             3
               In Rawlings v. Kentucky, 448 U.S. 98, 110-11 (1980), it was held that a search incident to
     an arrest may precede the arrest, so long as an arrest would have been lawful when the search
     occurred. That rule was inapplicable in Knowles only because the officer had initially decided to
     issue a citation rather than place the defendant under arrest for the traffic offense. See United States
     v. Powell, 483 F.3d 836, 841 (D.C. Cir. 2007); see also 3 Wayne R. LaFave, Search and Seizure
     § 5.2(h), at 134 (4th ed. 2004) (“the ‘problem’ in [Knowles] may be perceived to be the fact that the
     officer tipped his hand on the citation versus arrest question before the search”). Thus, the search
     in Knowles was not incident to an arrest that the officer was authorized to make when the search was
     conducted. The broad statement in Jones appears to overlook the significance of the issuance of the
     citation in Knowles.

                                                   -4-
       Although the implications of Cox and Jones may be open to debate, absent a clear statement
       from our supreme court we decline to read those cases as authority that a police officer may
       not make a custodial arrest for a petty offense.
¶9          Defendant argues that a departure from the federal rule announced in Atwater is justified
       because “[t]here exists a long-standing state tradition of not allowing police officers to arrest
       citizens for fine-only traffic offenses.” In support of this proposition, defendant relies
       principally on People v. Watkins, 19 Ill. 2d 11 (1960). But that case did not prohibit arrests
       for minor traffic offenses. Rather, the Watkins court held that a police officer had no
       authority to conduct a search incident to an arrest for such an offense, specifically, parking
       too close to a crosswalk. The Watkins court reasoned:
            “A uniform rule permitting a search in every case of a valid arrest, even for minor traffic
            violations, would greatly simplify our task and that of law enforcement officers. But such
            an approach would preclude consideration of the reasonableness of any particular search,
            and so would take away the protection that the constitution is designed to provide. ***
                 A search incident to an arrest is authorized when it is reasonably necessary to protect
            the arresting officer from attack, to prevent the prisoner from escaping, or to discover
            fruits of a crime. But the violation involved in this case was parking too close to a
            crosswalk,–the kind of minor traffic offense that ordinarily results in a ‘parking ticket’
            hung on the handle of the door of the car, telling the offender that it is not necessary to
            appear in court if he mails in the amount of his fine. Such an offense does not, in itself,
            raise the kind of inferences which justify searches in other cases. Some traffic violations
            would justify a search. The total absence of license plates, for example *** could
            reasonably suggest a serious violation of the law, as could an obscured license plate upon
            a car being driven in the early morning hours ***. But when no more is shown than that
            a car was parked too close to a crosswalk or too far from a curb, the constitution does not
            permit a policeman to search the driver.” Id. at 18-19.
¶ 10        This analysis might have been helpful to defendant if it were still good law. It is clear,
       however, that it is not. In People v. Hoskins, 101 Ill. 2d 209 (1984), our supreme court
       rejected the case-by-case approach and embraced the following analysis stated in United
       States v. Robinson, 414 U.S. 218 (1973):
                 “ ‘The authority to search the person incident to a lawful custodial arrest, while based
            upon the need to disarm and to discover evidence, does not depend on what a court may
            later decide was the probability in a particular arrest situation that weapons or evidence
            would in fact be found upon the person of the suspect. A custodial arrest of a suspect
            based on probable cause is a reasonable intrusion under the Fourth Amendment; that
            intrusion being lawful, a search incident to the arrest requires no additional justification.
            It is the fact of the lawful arrest which establishes the authority to search, and we hold
            that in the case of a lawful custodial arrest a full search of the person is not only an
            exception to the warrant requirement of the Fourth Amendment, but is also a
            “reasonable” search under that Amendment.’ ” Hoskins, 101 Ill. 2d at 216 (quoting
            Robinson, 414 U.S. at 235).
¶ 11        According to defendant, “[s]ince Watkins, Illinois courts have applied its principles to


                                                  -5-
       traffic stop cases countless times.” Defendant cites Jones, People v. Brownlee, 186 Ill. 2d
       501 (1999), and People v. Jones, 346 Ill. App. 3d 1101 (2004). But all three cases involve
       the permissible scope or duration of a traffic stop where there was no initial arrest for the
       traffic violation, and they have no bearing on the question before this court. Defendant also
       cites People v. Davis, 33 Ill. 2d 134 (1965). That case, which simply held that a police officer
       who discovered a tinfoil packet containing white powder in plain view during a traffic stop
       could arrest the driver and search the vehicle, lends no support to defendant’s argument that
       Illinois has traditionally refused to permit arrests for petty offenses.
¶ 12        Defendant also takes issue with Atwater’s reasoning, but the lockstep doctrine would be
       largely meaningless if Illinois courts interpreting state constitutional provisions followed
       only those United States Supreme Court decisions with which they agreed. We note that in
       Caballes our supreme court discussed various approaches other states take in construing state
       constitutional provisions consisting of the same, or nearly the same, language as federal
       constitutional provisions. Under the so-called “interstitial approach” there are three reasons
       why a state court might depart from federal precedent: “ ‘a flawed federal analysis, structural
       differences between state and federal government, or distinctive state characteristics.’ ”
       Caballes, 221 Ill. 2d at 308 (quoting State v. Gomez, 1997-NMSC-006, ¶ 19, 932 P.2d 1).
       Notably, however, the Caballes court chose the term “limited lockstep” for the express
       purpose of avoiding confusion “with the very broad definition of the interstitial approach
       adopted by some courts.” Id. at 310. The Caballes court did not suggest that a “flawed
       federal analysis” would ordinarily be a valid basis for departing from United States Supreme
       Court precedent. Accordingly, we will not conduct an independent analysis of the question
       settled in Atwater.
¶ 13        We next consider defendant’s argument that the trial court erred in ordering him to pay
       $750 to reimburse the public defender for services performed before defendant retained
       private counsel. Section 113-3.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS
       5/113-3.1(a) (West 2008)) authorizes the trial court to order a criminal defendant for whom
       counsel has been appointed to pay a reasonable amount to reimburse the county or the state.
       However, prior to ordering reimbursement, the trial court must conduct a hearing regarding
       the defendant’s financial resources. Id.; People v. Love, 177 Ill. 2d 550, 559 (1997). No such
       hearing was conducted here, and the State concedes that the order requiring payment must
       be vacated. However, although the State asks that the case be remanded so that a hearing can
       be conducted, defendant notes that section 113-3.1(a) provides that the hearing shall be held
       “no later than 90 days after the entry of a final order disposing of the case at the trial level.”
       725 ILCS 5/113-3.1(a) (West 2008). Defendant contends that, because the 90-day period has
       now expired, the case should not be remanded for a hearing. However, in Love our supreme
       court remanded for a hearing even though more than 90 days had passed since the disposition
       of the case in the trial court,4 and we shall do the same here. See People v. Gutierrez, 405 Ill.
       App. 3d 1000, 1003 (2010), appeal allowed, No. 111590 (Mar. 30, 2011).

               4
                 In Love the petition for leave to appeal was allowed on January 29, 1997 (People v. Love,
       171 Ill. 2d 576 (1997)), and the supreme court issued its decision on October 17, 1997 (Love, 177
       Ill. 2d 550).

                                                  -6-
¶ 14      For the foregoing reasons we affirm the denial of defendant’s motion to quash and
       suppress. We vacate the order that defendant pay $750 for the services of the public defender
       and remand for a hearing on defendant’s ability to pay.

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




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