                          No. 3--07--0869

_________________________________________________________________
Filed October 6, 2008
                              IN THE

                    APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2008

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 12th Judicial Circuit,
                                ) Will County, Illinois,
     Plaintiff-Appellant,       )
                                )
     v.                         ) No. 07--DT--1626
                                )
BRIAN PAIGE,                    ) Honorable
                                ) Bennett J. Braun,
     Defendant-Appellee.        ) Judge, Presiding.
_________________________________________________________________

       JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________


     The defendant, Brian Paige, was charged with driving under the

influence of drugs, and his license was summarily suspended for

refusing or failing to submit to drug testing.     625 ILCS 5/11--

501(a)(4), 11--501.1 (West 2006).    He filed a petition to rescind

the summary suspension, which the trial court granted.   The State

appealed.   We reverse and remand.

     On September 4, 2007, the defendant filed a petition to

rescind the summary suspension of his driver's license.         The

defendant cited three grounds for recision: (1) the arresting

officer did not have reasonable grounds to believe that he was

driving or in control of a motor vehicle while under the influence
of drugs; (2) he was not properly warned as provided by statute;

and (3) he did not refuse to submit to or complete the required

chemical test.

       On   October   16,    2006,   the       court   held    a    hearing   on   the

defendant's petition to rescind his summary suspension.                            The

defendant testified that on August 31, 2007, at approximately 11:30

p.m., he encountered a roadblock on Jefferson Street in Joliet,

Illinois.     At that time, the defendant was not speeding, swerving,

or changing lanes without signaling.

       An Illinois state trooper waved the defendant over to a

parking lot and told him to pull up to a female officer in the

parking lot.      The officer asked the defendant for his license and

proof of insurance.         She then told him that she smelled marijuana

coming from his vehicle.             She asked the defendant if he had

ingested any marijuana; he responded that he had not.

       On   cross-examination,       the       defendant      denied   smoking     any

marijuana that evening.            The defendant also denied telling the

officer that he had smoked some marijuana earlier that evening. The

defendant had been with other people who had smoked marijuana. The

defendant then objected to the State's question regarding events

that   occurred    after     the   defendant      exited      the    vehicle.      The

defendant stated that he was only proceeding upon the argument that

the police did not have reasonable grounds for the stop of his




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vehicle.   The State withdrew the question, and the defendant

rested.

     At that point, the State moved for a directed finding.      The

State argued that the defendant had failed to make a prima facie

case that the stop of his vehicle was unconstitutional.    The court

denied the motion.

     The State then called Trooper Shelly Cox to testify.        Cox

testified that she was assigned to a roadside safety check on

August 31, 2007.     Generally during a roadside safety check, five

cars at a time are waved into the security area, which is usually

a parking lot.     If no problems are detected, the drivers are

allowed to go.

     On the evening in question, the safety lanes within the

parking lot were cleared of cars.     The master sergeant then waved

in the next five cars proceeding down the street.    A white pickup

truck was the first vehicle waved into Cox's lane.      The driver,

whom Cox identified as the defendant, lowered his window.        Cox

asked him for his driver's license and proof of insurance.       The

defendant did not have his license.    As she was speaking with him,

Cox noticed the odor of burned cannabis coming from the vehicle.

Upon questioning, the defendant admitted to Cox that he had smoked

cannabis earlier that evening. After further questioning and a pat

down conducted by another trooper, the defendant stated that he had

cannabis on his person.    He removed a clear plastic bag containing


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approximately 16 grams of cannabis from the crotch area of his

jeans.   The defendant was then placed under arrest.

     Cox also testified that she had not directed the vehicles into

the parking lot.   She could not recall whether five cars at a time

were sent into the lot on this night, but that was the usual

pattern for these kinds of safety checks.     Prior to the roadside

safety check, the troopers reviewed the standard procedure for

conducting these checks.     To the best of Cox's knowledge, that

procedure was followed on August 31, 2007.

     After closing arguments, the court stated that the petition to

rescind did not specifically challenge the roadside safety check.

The court found Cox's testimony was credible and rebutted the

defendant's testimony that he had not smoked cannabis.    The court

then requested that the parties submit caselaw regarding the

question of the roadside stop.   After a subsequent hearing on that

legal question, the court granted the petition to rescind the

summary suspension because the police did not have reasonable

grounds to stop the defendant's vehicle.

     On appeal, the State contends that the trial court erred by

denying its motion for directed finding. The State argues that the

defendant failed to establish a prima facie case for recision by

failing to put forward any evidence that the roadside safety check

was invalid.   The defendant has not filed an appellee brief, but we




                                  4
elect to decide the case under First Capital Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976).

     A hearing on a petition to rescind a summary suspension is a

civil proceeding, at which the defendant bears the burden of

establishing a prima facie case for recision.    People v. Marsala,

376 Ill. App. 3d 1046, 877 N.E.2d 1167 (2007).   A defendant "makes

out a prima facie case if he puts on some evidence on every element

essential to his cause of action."    People v. Tibbetts, 351 Ill.

App. 3d 921, 927, 815 N.E.2d 409, 414 (2004).      If the defendant

establishes a prima facie case, the burden shifts to the State to

produce evidence justifying the suspension. Marsala, 376 Ill. App.

3d 1046, 877 N.E.2d 1167.    "A defendant's failure to establish a

prima facie case warrants a directed finding in favor of the

State."   Marsala, 376 Ill. App. 3d at 1048, 877 N.E.2d at 1170.   We

will not disturb a trial court's finding that a prima facie case

has been made unless it is against the manifest weight of the

evidence.   Marsala, 376 Ill. App. 3d 1046, 877 N.E.2d 1167.

     In addition to the statutory grounds for rescinding a summary

suspension (625 ILCS 5/2--118.1 (West 2006)), a suspension may be

rescinded where the stop of the defendant's vehicle was improper.

People v. Crocker, 267 Ill. App. 3d 343, 641 N.E.2d 1237 (1994).

In this case, the defendant claimed that his summary suspension

should be rescinded because he was not driving in such a manner as

to justify an investigative stop of his vehicle.      As the State


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argued below and on appeal, however, the defendant was stopped

pursuant   to   a    roadside   safety       check.      While   a   roadblock    is

considered a seizure, it is not a per se violation of the fourth

amendment.      People v. Bartley, 109 Ill. 2d 273, 486 N.E.2d 880

(1985).      In addition, police need not form an individualized

suspicion that a driver is violating a law before stopping that

driver in a roadblock.       Bartley, 109 Ill. 2d 273, 486 N.E.2d 880.

"[T]he    question    of   whether   a       roadblock    violates    the   fourth

amendment is essentially one of reasonableness." Bartley, 109 Ill.

2d at 280, 486 N.E.2d at 883.

     The defendant testified that he was not speeding, swerving or

breaking any other traffic laws when he encountered the roadblock.

He was waved into a parking lot and told to proceed toward a police

officer who asked for his license and proof of insurance.                        The

officer told the defendant that she smelled marijuana coming from

the vehicle.     This evidence does not establish a prima facie case

that the roadblock was unreasonable.            In fact, this testimony does

not establish anything other than the fact that the defendant was

stopped at a roadblock.         As the Illinois supreme court has found,

a roadblock is not per se unreasonable.               Bartley, 109 Ill. 2d 273,

486 N.E.2d 880.      In order to successfully establish a prima facie

case for recision, the defendant needed to show some evidence that

the roadblock was not reasonable.              The defendant did not produce

any such evidence here.         Thus, we find that the court's decision


                                         6
denying the State's motion for a directed finding was against the

manifest weight of the evidence.

     The judgment of the Will County circuit court is reversed, and

the matter is remanded for further proceedings.

     SCHMIDT and WRIGHT, JJ., concurring.




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