                                                                       Digitally signed by
                                                                       Reporter of Decisions
                       Illinois Official Reports                       Reason: I attest to
                                                                       the accuracy and
                                                                       integrity of this
                                                                       document
                              Appellate Court                          Date: 2017.05.15
                                                                       08:44:54 -05'00'




                  People v. Williams, 2017 IL App (3d) 150879



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           THOMAS J. WILLIAMS, Defendant-Appellee.



District & No.    Third District
                  Docket No. 3-15-0879



Filed             February 22, 2017



Decision Under    Appeal from the Circuit Court of Will County, Nos. 15-DT-186,
Review            15-TR-9913; the Hon. Kenneth L. Zelazo, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        James Glasgow, State’s Attorney, of Joliet (Richard T. Leonard
Appeal            (argued), of State’s Attorneys Appellate Prosecutor’s Office, of
                  counsel), for the People.

                  Ted P. Hammel (argued), of Hammel Law Offices, P.C., and Frank P.
                  Andreano, of Andreano & Lyons Attorney at Law, both of Joliet, for
                  appellee.



Panel             JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                  Presiding Justice Holdridge and Justice Schmidt concurred in the
                  judgment and opinion.
                                               OPINION

¶1       The State appeals from an order granting defendant’s motion to quash his arrest for driving
     under the influence of alcohol (DUI) by a Lockport police officer, acting within his
     jurisdiction, after an off-duty Palos Hills police officer placed defendant in custody for
     improper lane usage. During the hearing on the motion to quash arrest and suppress evidence,
     the off-duty Palos Hills police officer testified that he witnessed defendant driving erratically
     outside the officer’s jurisdiction and stopped defendant for improper lane usage. However,
     since the off-duty Palos Hills police officer initially measured defendant’s speed with a radar
     gun before witnessing the improper lane violation, the court quashed defendant’s arrest for
     DUI as a product of the invalid citizen’s arrest by the off-duty Palos Hills police officer. We
     reverse and remand for further proceedings.

¶2                                                FACTS
¶3       On February 7, 2015, an on-duty Lockport police officer conducted an independent
     investigation of a complaint concerning defendant’s erratic driving and improper lane usage in
     that jurisdiction. Defendant, Thomas Williams, received citations from the Lockport police
     officer for two counts of DUI (625 ILCS 5/11-501(a) (West 2014)) in case No. 15-DT-186 and
     one count of speeding (625 ILCS 5/11-601(b) (West 2014)) in case No. 15-TR-9913.1
¶4       On April 14, 2015, defendant filed a motion to quash his arrest in case No. 15-DT-186. In
     his motion, defendant argued that the off-duty Palos Hills police officer, who initially stopped
     him, did not have the jurisdictional authority to place him in custody while waiting for the
     Lockport police officer to arrive.
¶5       On August 12, 2015, the court held a hearing on defendant’s motion to quash. The off-duty
     Palos Hills police officer testified that he was driving southbound on MacGregor Road coming
     from 151st Street in Lockport, Illinois, at approximately 3:00 a.m. on February 7, 2015. The
     off-duty Palos Hills police officer advised the court that he had 10 years experience as an
     officer.
¶6       According to the off-duty Palos Hills police officer, he was heading to his home in
     Lockport, Illinois, that morning after his shift ended with the Palo Hills police department. The
     officer was driving an unmarked police car that contained a radar gun and Mars lights. He was
     wearing a full police uniform and was armed with a firearm.
¶7       While driving southbound on MacGregor Road, a two-way residential street, the off-duty
     Palos Hills police officer encountered an oncoming vehicle that he could see was speeding
     above the posted 25-miles-per-hour speed limit. According to the off-duty Palos Hills police
     officer, the vehicle, later determined to be driven by defendant, was rapidly closing the
     distance between defendant’s vehicle and the unmarked squad car.
¶8       The off-duty Palos Hills police officer testified that after visually determining defendant
     was speeding, he glanced at his dash-mounted radar system that he had not turned off at the end


         1
         Defendant did not file a motion to quash his arrest in case No. 15-TR-9913. However, the State
     concedes it must dismiss defendant’s speeding ticket because the officer who observed defendant
     speeding used powers of his office that are unavailable to ordinary citizens to obtain this evidence.

                                                   -2-
       of his shift. According to the officer, the radar system measured defendant’s speed at 60 miles
       per hour in the posted 25-miles-per-hour zone.
¶9         As the two vehicles approached and then passed each other traveling in opposite directions,
       defendant’s vehicle veered into the oncoming lane of traffic. The off-duty Palos Hills police
       officer swerved off the road to avoid colliding with defendant’s vehicle. After this evasive
       maneuver, the off-duty Palos Hills police officer called 911 on his personal cellular phone to
       report the reckless driver.
¶ 10       After reporting the incident, the off-duty Palos Hills police officer made a U-turn and
       maintained sight of defendant’s vehicle. The off-duty Palos Hills police officer relayed this
       information about the direction of travel of defendant’s vehicle to the dispatcher by using his
       personal cellular phone as he followed defendant’s vehicle.
¶ 11       Shortly thereafter, defendant parked his vehicle in a driveway on Reef Road. Again, the
       off-duty Palos Hills police officer provided the dispatcher with updated information about
       where defendant stopped.
¶ 12       After parking his squad car on the street, the off-duty Palos Hills police officer began
       walking toward the driveway. The officer testified that he saw defendant leave defendant’s
       vehicle and begin walking toward the home at that address. The off-duty Palos Hills police
       officer initiated a conversation with defendant by telling defendant he almost struck the
       officer’s vehicle on MacGregor Road.
¶ 13       The officer asked defendant if he lived at that address. Defendant said it was a friend’s
       house and he did not live there. At some point during the conversation, the officer told
       defendant he was an off-duty police officer and was on his way home. The off-duty Palos Hills
       police officer asked defendant if he had a driver’s license and told defendant not to go
       anywhere until the Lockport police officer arrived.
¶ 14       According to the off-duty Palos Hills police officer, defendant was very cooperative. When
       asked if defendant had been drinking, defendant replied he had been consuming alcohol at
       Paradise Bay. The off-duty Palos Hills police officer and defendant waited together at the base
       of the driveway until the Lockport police officer arrived. The off-duty Palos Hills police
       officer did not perform any type of sobriety test on defendant.
¶ 15       The Lockport police officer arrived about 10 minutes after the first 911 call. The off-duty
       Palos Hills police officer spoke to the Lockport police officer and described his observations of
       defendant’s erratic driving. Subsequently, the Lockport police officer performed sobriety tests
       on defendant, placed defendant under arrest for DUI, and issued defendant three traffic
       citations. The Lockport police officer completed a sworn report providing the grounds for
       defendant’s DUI arrest, which stated: “Report of erratic driving, improper lane usage, slurred
       speech, bloodshot eyes, failure to complete one leg stand test, [and] failure to complete walk
       and turn test.”
¶ 16       The off-duty Palos Hills police officer testified that the locations where he observed
       defendant commit the traffic offenses and where he stopped defendant were both outside of his
       jurisdiction. Palos Hills is located in Cook County, whereas Lockport is located in Will
       County, Illinois.
¶ 17       After the conclusion of the parties’ arguments, the court continued the matter to September
       21, 2015, for the purpose of allowing the parties to submit case law in support of their
       positions. On September 21, 2015, the court announced its findings.


                                                   -3-
¶ 18       The court noted it was undisputed that the Palos Hills police officer was off duty and
       outside of his jurisdiction when the officer first observed defendant’s vehicle traveling toward
       him on the roadway. The court expressed doubts about “the truthfulness and accuracy of the
       officer’s testimony as it relates to the series and sequence of [the officer’s] observations.” The
       court’s findings implied that the court believed the off-duty Palos Hills police officer first used
       the radar gun to measure defendant’s speed before observing defendant commit the other
       offenses. The trial judge stated that when making an extraterritorial arrest, an off-duty police
       officer may not use powers of his office that are unavailable to a private citizen to obtain
       evidence. Accordingly, the trial court granted defendant’s motion to quash the DUI arrest and
       suppressed all evidence obtained as a result of the first unlawful stop.
¶ 19       On December 3, 2015, the court held a hearing on the State’s motion to reconsider. At the
       hearing, the trial court emphasized that it believed the evidence obtained from the radar gun
       was the true reason for the stop, not the improper lane usage described by the off-duty police
       officer. The trial judge was concerned that the Lockport police officer did not charge defendant
       with an improper lane usage violation. For these reasons, the trial court judge questioned the
       off-duty police officer’s “conclusion that the stop was predicated on the lane violation”
       independent from information gathered by the use of the radar gun. Therefore, the judge
       denied the State’s motion to reconsider.

¶ 20                                             ANALYSIS
¶ 21       The State contends the trial court erroneously granted defendant’s motion to quash and
       suppress evidence. The State argues the off-duty Palos Hills police officer properly performed
       a citizen’s arrest after observing defendant commit the offenses of improper lane usage and
       erratic driving. Therefore, the State submits defendant was lawfully under citizen’s arrest for
       improper lane usage before the Lockport police officer took over the investigation in his
       jurisdiction.
¶ 22       When reviewing a trial court’s ruling on a motion to quash and suppress evidence, the trial
       judge’s factual findings are entitled to deference and will be reversed only if such findings are
       against the manifest weight of the evidence. People v. McDonough, 239 Ill. 2d 260, 266
       (2010). On the other hand, the trial judge’s ultimate ruling on whether suppression is warranted
       involves a legal question subject to de novo review. Id. Thus, for purposes of our analysis, we
       defer to the trial court’s factual findings regarding the sequence of the officer’s observations.
¶ 23       The court found the off-duty Palos Hills police officer first used his radar unit before
       making a decision to follow and eventually stop defendant. The court found the citizen’s arrest
       by the off-duty officer for improper lane usage was invalid because the officer first gathered
       information concerning defendant’s speed by using the powers of his office, a radar gun.
¶ 24       At common law, a police officer cannot lawfully arrest a suspect outside of the jurisdiction
       that appointed the officer unless acting in “fresh pursuit” of a suspected felon fleeing from that
       jurisdiction. People v. Lahr, 147 Ill. 2d 379, 382 (1992). An exception to the common-law rule
       arose from section 107-3 of the Code of Criminal Procedure of 1963 (Code), which allows a
       private person to arrest another person when “he has reasonable grounds to believe that an
       offense other than an ordinance violation is being committed.” 725 ILCS 5/107-3 (West 2014).
       Under section 107-3, a police officer acting outside of his jurisdiction retains all of the rights of
       an ordinary citizen to effectuate a citizen’s arrest. Lahr, 147 Ill. 2d at 382.


                                                     -4-
¶ 25       However, an extraterritorial arrest by an officer acting in the capacity of a private citizen
       will not be upheld by a court pursuant to section 107-3 where the officer, acting as a citizen,
       relies on information gathered by using powers of his office to create reasonable grounds for
       the arrest. Powers of office have been construed to include the use of a radar gun because this
       device is generally unavailable to private citizens. Id. at 383.
¶ 26       The record reveals defendant voluntarily stopped his vehicle once he arrived at the
       driveway of a friend’s house. The off-duty Palos Hills police officer did not activate his lights
       to effectuate a traffic stop at any point in this process. Instead, defendant voluntarily parked
       and exited his vehicle without any directive from the off-duty officer. Defendant was on foot
       when the off-duty Palos Hills police officer approached defendant and struck up a
       conversation. Again, we conclude, defendant voluntarily stopped walking in order to speak to
       the off-duty Palos Hills police officer.
¶ 27       During this conversation, the off-duty Palos Hills police officer asked if defendant had
       been drinking, asked for defendant’s driver’s license, and instructed defendant to wait with the
       officer in the driveway until the Lockport police department could reach that location. Shortly
       thereafter, the Lockport police officer arrived and spoke to both men.
¶ 28       The off-duty Palos Hills police officer spoke to the Lockport police officer about the erratic
       driving and improper lane use he witnessed on the night of the incident. This circumstance is
       included in the Lockport police officer’s sworn report concerning defendant’s arrest for DUI.
¶ 29       Here, an off-duty police officer, acting outside his jurisdiction, stopped defendant for
       improper lane usage. Improper lane use is an “offense other than an ordinance violation” for
       the purposes of creating the authority to effectuate a citizen’s arrest under section 107-3 of the
       Code. See People v. Kleutgen, 359 Ill. App. 3d 275, 279 (2005). However, the Lockport police
       officer conducted his own investigation of the DUI offense after arriving on scene. It was the
       Lockport police officer that elected to arrest defendant for DUI and speeding but did not issue
       a citation for improper lane usage.
¶ 30       The case law provides that the Lockport police officer was not required to charge
       defendant with all minor violations witnessed by the off-duty Palos Hills police officer because
       after the stop, the Lockport police officer became aware of a more serious violation. See
       People v. Goestenkors, 278 Ill. App. 3d 144, 149 (1996). We conclude that the Lockport police
       officer’s decision not to charge defendant with improper lane usage is not outcome
       determinative.
¶ 31       In spite of these unusual events, we conclude the trial court’s ruling misapplies existing
       case law. In People v. Gutt, 267 Ill. App. 3d 95, 99 (1994), the court upheld an extraterritorial
       arrest similar to the case at bar. In that case, the off-duty officer first used a radar gun to obtain
       evidence but later observed the defendant fail to use his turn signal. The same circumstances
       exist here and support the lawfulness of defendant’s arrest for improper lane usage before the
       Lockport police officer made it to the scene. We hold that an off-duty police officer’s use of a
       radar gun outside of his jurisdiction, before personally witnessing a driver commit other traffic
       offenses unrelated to excessive speed, will not taint subsequently developed probable cause to
       conduct an arrest by the officer acting in his civilian capacity.
¶ 32       We reverse and remand for further proceedings.




                                                     -5-
¶ 33                                     CONCLUSION
¶ 34      The judgment of the circuit court of Will County is reversed and remanded for further
       proceedings.

¶ 35      Reversed and remanded.




                                               -6-
