                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Miranda, 2012 IL App (2d) 100769




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    HEDILBERTO MIRANDA, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-10-0769


Filed                      January 19, 2012


Held                       In a prosecution for aggravated driving under the influence of alcohol and
(Note: This syllabus       felony driving with a suspended license, the appellate court upheld the
constitutes no part of     trial court’s order suppressing the results of a test of defendant’s urine for
the opinion of the court   drugs performed on a sample obtained pursuant to a search warrant that
but has been prepared      was issued after defendant refused a urine test, since defendant revoked
by the Reporter of         his implied consent when he refused to submit to the test, the warrant did
Decisions for the          not satisfy the fourth amendment or the good-faith exception to the
convenience of the         exclusionary rule where the affidavit prepared to secure the warrant did
reader.)
                           not provide probable cause to believe defendant had consumed any drugs,
                           and the police had no right to obtain tests for anything other than alcohol.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 09-CF-3168; the
Review                     Hon. Blanche Hill Fawell, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
Appeal                     Assistant State’s Attorney, and Lawrence M. Bauer and Kristin M.
                           Schwind, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.

                           Thomas A. Lilien and Kathleen J. Hamill, both of State Appellate
                           Defender’s Office, of Elgin, for appellee.


Panel                      JUSTICE HUTCHINSON delivered the judgment of the court, with
                           opinion.
                           Justices McLaren and Zenoff concurred in the judgment and opinion.




                                             OPINION

¶1           The State appeals an order suppressing evidence seized under a search warrant that was
        issued after defendant, Hedilberto Miranda, was arrested for driving under the influence of
        alcohol (DUI). The State contends that (1) the trial court erred in holding that the affidavit
        for the warrant did not provide the probable cause needed to test defendant’s urine for drugs;
        and (2) even absent probable cause, the evidence is admissible under the good-faith doctrine
        (see United States v. Leon, 468 U.S. 897 (1984)). We affirm.
¶2           Defendant was indicted for aggravated DUI (625 ILCS 5/11-501(d)(1)(A) (West 2008))
        and felony driving with a suspended license (625 ILCS 5/6-303(d-3) (West 2008)). On
        February 23, 2010, he was indicted for (1) driving while his urine contained any amount of
        a drug, substance, or compound resulting from the unlawful use of cannabis (625 ILCS 5/11-
        501(a)(6) (West 2008)) and (2) driving while his urine contained any amount of a drug,
        substance, or compound resulting from the unlawful use of cocaine (625 ILCS 5/11-
        501(a)(6) (West 2008)). Later, he filed his motion to suppress, which alleged as follows. On
        December 23, 2009, at about 5:05 p.m., a search warrant was issued, authorizing the taking
        of two vials of blood, to be analyzed for the presence of alcohol, and a urine specimen, to be
        tested for the presence of controlled substances. Per the warrant, hospital employees took the
        samples from defendant against defendant’s wishes. The warrant was invalid as it related to
        the urine specimen, because the affidavit used to secure the warrant did not provide probable
        cause to believe that defendant had consumed any drugs. Defendant requested that the trial
        court suppress any results of the test of his urine for the presence of drugs.
¶3           The affidavit, prepared by Elmhurst police officer Michael McLean and dated December
        23, 2009, stated as follows. McLean had been a police officer for approximately 10 years.
        He had investigated hundreds of suspected DUIs and been trained in administering field tests
        for possible DUI. On December 23, 2009, at about 1:11 a.m., McLean was on patrol when

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     he saw a gray Lexus sedan directly in front of him, traveling north on York Road. The Lexus
     drifted from the right lane well into the left lane, drifted back well into the right lane about
     30 seconds later, continued north, and drifted back into the left lane for about 20 yards before
     returning to the right lane. The Lexus then stopped about 20 feet short of the stop line at the
     intersection of York and Grand Avenue and turned right onto Grand without stopping at the
     intersection line. To stop the Lexus, McLean pulled behind it and activated his squad car’s
     emergency lights. The Lexus rolled forth about 100 yards before stopping. Inside were
     defendant, who was driving, and Hector Soto, a front-seat passenger.
¶4       McLean’s affidavit continued as follows. McLean exited his squad car and approached
     the passenger’s side. Soto was holding two open Heineken bottles that contained an amber
     liquid. McLean asked defendant for his driver’s license. Defendant produced a state
     identification card. He told McLean that he and Soto had been drinking at Heavenly Bodies.
     Defendant’s eyes were glassy and bloodshot and his face was red. McLean smelled a strong
     odor of alcohol from inside the car. He asked the men how much they had drunk that night;
     defendant responded that he had had a beer or two. McLean called another officer to the
     scene, then had defendant step outside for field sobriety tests. Defendant had to be directed
     not to walk in the open traffic lane, and he swayed back and forth; McLean detected a strong
     odor of alcohol on his breath. Defendant took three field sobriety tests and failed them all.
     Based on his observations of defendant, the results of the tests, and his experience and
     training, McLean “believe[d] that [defendant] was under the influence of alcohol, and not fit
     to operate a motor vehicle.” He advised defendant that he was under arrest for DUI, and he
     transported defendant to the police station.
¶5       The final substantive paragraph of McLean’s affidavit stated:
             “In reviewing Hedilberto Miranda’s driver’s abstract, his records indicate that he has
         had court supervision for DUI in 2000, a conviction for DUI in 2007, and a statutory
         summary suspension in effect on his drivers [sic] license since 02/24/99. Miranda’s
         license is currently revoked for a DUI conviction. It is in [sic] this complainant’s
         professional opinion that Hedilberto Miranda is under the influence of alcohol and/or
         drugs, and that a blood and urine specimen will result in evidence of this fact. I am
         requesting an order directing Elmhurst Hospital to use a DUI blood and urine kit to
         withdraw a blood and urine specimen, for [the] purpose of analysis for [the] presence of
         alcohol or drugs.”
¶6       On December 23, 2009, a judge issued a warrant authorizing the collection from
     defendant of “two vials of blood samples and a urine specimen collected at Elmhurst
     Hospital for the purpose of analyzing for the presence of alcohol, drugs, or controlled
     substance [sic], by either a physician authorized to practice medicine, or a registered nurse
     or other qualified person.”
¶7       The trial court initially denied defendant’s motion to suppress. He moved to reconsider.
     At a brief hearing, Cynthia Woods, a forensic scientist at a state police laboratory, testified
     that she had tested defendant’s blood and urine samples. The blood sample had been tested
     for alcohol, but not drugs. The urine specimen had been tested for cocaine and cannabinoids,
     but not alcohol.


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¶8         The trial court granted defendant’s motion to reconsider. The trial court explained that
       McLean’s affidavit said “nothing at all” about controlled substances. Thus, the police had
       no right to obtain tests for anything other than alcohol. The State moved to reconsider,
       contending that, even if the warrant did not provide probable cause to test for controlled
       substances, the police could have relied on it in good faith. The court denied the motion, and
       the State appealed.
¶9         On appeal, the State again contends both that McLean’s affidavit provided the probable
       cause needed for the issuance of the warrant and that, even absent probable cause, the police
       reasonably and in good faith relied on it in obtaining the urine sample that provided evidence
       that defendant had consumed controlled substances. We address these contentions in turn.
¶ 10       The compelled extraction of a person’s blood or urine to obtain evidence of alcohol or
       drug consumption is a search under the fourth amendment. Skinner v. Ry. Labor Executives’
       Ass’n, 489 U.S. 602, 617 (1989). A search warrant must be supported by probable cause.
       U.S. Const., amend. IV. In reviewing the sufficiency of an affidavit for a search warrant, we
       do not substitute our judgment for that of the magistrate but decide only whether the
       magistrate had a substantial basis to conclude that probable cause existed. Massachusetts v.
       Upton, 466 U.S. 727, 732-33 (1984) (per curiam); People v. Sutherland, 223 Ill. 2d 187, 219
       (2006).
¶ 11       Although this test is highly deferential, we must conclude that McLean’s affidavit did not
       provide a substantial basis to find probable cause that testing defendant’s urine would reveal
       the presence of any controlled substance.1 McLean’s affidavit said next to nothing about
       controlled substances, and what scant mention it did make was unsupported by facts.
       McLean referred to finding physical evidence of alcohol consumption (the open Heineken
       bottles), but not to finding any physical evidence of drug use. He stated that he smelled
       alcohol on defendant’s breath, observed standard indicia of alcohol intoxication, learned
       from defendant that he had consumed alcohol, and administered field sobriety tests that
       defendant failed. As a result of all of the foregoing, McLean “believed that [defendant] was
       under the influence of alcohol” (emphasis added) and arrested him for DUI. Conspicuously
       absent from McLean’s detailed factual recitation was any reference to controlled substances
       or any evidence that defendant had used them. McLean did not state that any of these facts
       made him suspect that defendant had used controlled substances.
¶ 12       The affidavit’s sole reference to controlled substances came in the final substantive
       paragraph, in which McLean gave his “professional opinion that [defendant was] under the
       influence of alcohol and/or drugs.” Not only was this a bare conclusion, but the use of the
       phrase “and/or” left some ambiguity about whether McLean suspected that defendant had




               1
                There is, of course, no dispute that the affidavit provided probable cause to believe that a
       test of defendant’s blood would show alcohol at a level probative of intoxication. However, as
       Woods testified, the blood test was for alcohol only and the urine test was for controlled substances
       only. Thus, the two searches are distinct for purposes of fourth amendment review.

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       used drugs at all.2 Thus, we hold that the affidavit did not establish a sufficient basis on
       which to find the probable cause needed to test defendant’s urine for the presence of
       controlled substances.
¶ 13        We hold second that the police could not rely in good faith on the warrant to obtain the
       urine test. Whether the good-faith doctrine applies is a question of law that we decide de
       novo. People v. Turnage, 162 Ill. 2d 299, 305 (1994). Reliance on a warrant is not proper if
       the warrant is based on an affidavit so lacking in indicia of probable cause as to render
       official belief in its existence entirely unreasonable. Leon, 468 U.S. at 923. Reliance on
       McLean’s affidavit to obtain drug testing was entirely unreasonable. The affidavit did not
       merely fall short of establishing probable cause to believe that defendant had recently used
       drugs; it provided no facts to make that belief more than pure speculation. The deficiency
       was not technical; it was total. Thus, the good-faith doctrine is of no avail to the State.
¶ 14        In seeking reversal, the State relies primarily on People v. Kirk, 291 Ill. App. 3d 610
       (1997). However, Kirk is distinguishable, as it does not address the probable cause needed
       to secure a valid warrant but instead relies on the rule that a valid consent to a search
       dispenses with the need for either a warrant or probable cause–a rule that does not apply here.
¶ 15        In Kirk, police officers arrived at the scene of a one-car accident and learned that the
       defendant, who was on the scene, had driven the car. The defendant displayed various indicia
       of alcohol intoxication, and he was taken to a hospital for treatment. Id. at 611-12. There, a
       police officer cited him for DUI and asked him to take both a blood test and a urine test. The
       officer did not see anything to suggest that the defendant was under the influence of drugs.
       The defendant consented to both tests. Id. at 615. The blood sample was tested for alcohol
       only, and the urine sample was tested for drugs only. Id. at 617. The urine sample tested
       positive for cannabis. Later, the defendant moved to suppress the results of both tests. The
       trial court ruled that the blood test result was admissible because there had been probable
       cause to believe that the defendant had committed DUI. However, it suppressed the result
       of the urine test because there had been no probable cause to believe that the defendant had
       used drugs. Id. at 613-14.
¶ 16        The appellate court reversed, holding that the trial court erred in assuming that the
       administration of the urine test required independent probable cause to believe that the
       defendant had used drugs. Id. at 614-15. The court relied on the implied consent statute,
       which, as pertinent, read:
            “Any person who drives *** shall be deemed to have given consent *** to a chemical
            test or tests of blood, breath, or urine for the purpose of determining the content of
            alcohol, other drug, or combination of both in the person’s blood if arrested, as evidenced
            by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501
            or a similar provision of a local ordinance.” 625 ILCS 5/11-501.1(a) (West 1994).
¶ 17        The court explained that this language plainly means that an officer who has probable
       cause to arrest a person for DUI, and does so, may request any of the tests listed in the

              2
               See Bryan A. Garner, A Dictionary of Modern Legal Usage 56 (2d ed. 1995) (use of clumsy
       and ambiguous term “and/or” has been “vilified for most of its life–and rightly so”).

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       statute, including a urine test for drugs. Thus, under the implied consent statute,
       “individualized suspicion of drugs” is not necessary to administer a urine test for drugs. Kirk,
       291 Ill. App. 3d at 615. Because the defendant had been validly arrested for DUI, the officer
       properly requested both tests, to which the defendant consented. Therefore, the result of the
       urine test was admissible. Id.
¶ 18       Kirk did not raise any fourth amendment issues at all, much less the validity of a search
       warrant authorizing the testing of a defendant against his wishes. There is an obvious reason
       for this: the operation of the implied consent statute eliminated any need for the police to
       obtain a warrant or to have probable cause to believe that the defendant had used drugs.
       Under the statute, the defendant had already given his implied consent to have his urine
       tested for drugs any time that he drove a motor vehicle and was validly arrested for DUI. The
       defendant never revoked his consent; when asked to take the test, he agreed. Therefore, it
       was not necessary for Kirk to discuss any fourth amendment issues, and any fourth
       amendment challenge to the urine test would have been futile.
¶ 19       It is axiomatic that valid consent to a search is an exception to the “requirements of both
       a warrant and probable cause.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); People
       v. Johns, 342 Ill. App. 3d 297, 299 (2003). The urine test in Kirk was proper because,
       although lacking a warrant or probable cause, the police had the defendant’s consent. See
       State v. Smith, 134 S.W.3d 35, 39 (Mo. Ct. App. 2003) (implied consent statute allows police
       to obtain blood sample without warrant or express consent).
¶ 20       Implied consent, however, may be revoked, as when the driver refuses to consent to a
       test. Brown v. State, 774 N.E.2d 1001, 1006 (Ind. Ct. App. 2002) (driver may revoke implied
       consent by refusing to submit to test); State v. Humphreys, 70 S.W.3d 752, 762 (Tenn. Crim.
       App. 2001) (holding that test was proper under implied consent statute, and specifically
       noting lack of evidence that defendant had refused to take test); State v. Riedel, 656 N.W.2d
       789, 793 (Wis. Ct. App. 2002) (defendant revoked his implied consent by refusing to take
       test). When a motorist revokes an implied consent to testing, the police must find a valid
       basis for the search other than consent. See Brown, 774 N.E.2d at 1006-07. One basis, of
       course, is a search warrant. Id. at 1007. However, lacking the motorist’s implied consent to
       a particular chemical test, the officers applying for the warrant must satisfy the fourth
       amendment’s requirement of probable cause.
¶ 21       Here, the State does not dispute that defendant refused the urine test (as he alleged in his
       motion to suppress and as the facts unmistakably imply). Because defendant revoked his
       implied consent to the urine test, the police had to find an alternative to the implied consent
       statute to support the fourth amendment intrusion. The basis they chose was the warrant, but
       the warrant failed to satisfy the fourth amendment or the good-faith exception to the
       exclusionary rule. Therefore, suppression of the result of the urine test was required. We
       affirm the interlocutory order of the circuit court of Du Page County.

¶ 22      Affirmed.




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