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                               Appellate Court                         Date: 2016.02.10
                                                                       09:05:24 -06'00'




                  People v. Maberry, 2015 IL App (2d) 150341



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



District & No.    Second District
                  Docket No. 2-15-0341



Filed             December 23, 2015



Decision Under    Appeal from the Circuit Court of De Kalb County, Nos. 14-CM-1231,
Review            14-DT-368, 14-TR-11424; the Hon. Robert P. Pilmer, Judge,
                  presiding.



Judgment          Reversed and remanded.



Counsel on        Richard H. Schmack, State’s Attorney, of Sycamore (Lawrence M.
Appeal            Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.

                  No brief filed for appellee.



Panel             JUSTICE BIRKETT delivered the judgment of the court, with
                  opinion.
                  Justices McLaren and Hudson concurred in the judgment and opinion.
                                               OPINION

¶1       Defendant, Brittany Maberry, was arrested and charged with driving under the influence of
     alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2014)), possession of drug paraphernalia (720
     ILCS 600/3.5(a) (West 2014)), and following too closely (625 ILCS 5/11-710(a) (West 2014)).
     She moved to suppress evidence, contending that the arresting officer lacked reasonable
     grounds to stop her car on the basis of following too closely. The trial court granted the
     motion.1 The State appeals. For the following reasons, we reverse and remand.
¶2       At the hearing on the motion to suppress, defendant testified that on September 12, 2014,
     she was at Buffalo Wild Wings in Aurora. She dropped off a friend in Batavia, then headed
     home. As she was driving down Annie Glidden Road (a four-lane road with two lanes in each
     direction) approaching Twombly Road, where she lived, she noticed a car in front of her going
     slower than the 45-mile-per-hour speed limit. She estimated that she was a car length behind
     the car before it moved to the right lane, at which time she accelerated to the speed limit.
     Defendant estimated that she traveled behind the other vehicle for “[a]bout a football field
     maybe.” No other cars were on the road and the weather was clear. Her driver training had
     taught her to follow a car length behind, or one to two seconds. As she turned onto Twombly
     Road, she saw lights and pulled over.
¶3       Officer Devon Buckle testified that he was traveling at the 35-mile-per-hour speed limit
     when he saw a car behind him. (The speed limit on this portion of Annie Glidden Road
     increases from 30 to 35 to 45.) He estimated that the other car was five to six feet behind his.
     Officer Buckle testified that the vehicle was so close that it “alarmed” him. The car followed
     him at that distance for about half a block before he decided to change lanes so that he could
     see more. He did not notice any other violations, but decided to pull the car over because it had
     been following too closely.
¶4       During argument on the motion, the State relied on People v. Wofford, 2012 IL App (5th)
     100138, for the proposition that “the statute does not prescribe any method by which law
     enforcement is required to calculate a distance or time interval between vehicles.” The statute
     simply states that “[t]he driver of a motor vehicle shall not follow another vehicle more closely
     than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic
     upon and the condition of the highway.” 625 ILCS 5/11-710(a) (West 2014).
¶5       After hearing the parties’ arguments, the trial court found that the cars were traveling
     between 30 and 35 miles per hour. It also found that defendant’s following within a car length
     was reasonable under the statute. The trial court agreed with defendant that Wofford was
     factually different from the instant case. Specifically, the trial court stated:
                 “Other than [defendant] approaching the marked squad car, there’s nothing else
             noticeable or unusual about her driving.
                 After the squad car pulls into the right lane [defendant] proceeds forward driving
             the speed limit, makes a left turn. There’s no other indication of any issues with her
             driving ability or any potential violations of the traffic code.” (Emphasis added.)


         1
         The trial court had earlier granted defendant’s petition to rescind her summary suspension on the
     same grounds.

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¶6          The trial court then said that in light of all the testimony it could not say that “the manner in
       which she drove her vehicle that night was not reasonable and prudent, that she did not have
       due regard for the speed of both vehicles and the traffic upon the roadway as well as condition
       of the highway.” The court then granted defendant’s motion to suppress evidence. The State
       filed a certificate of impairment and a timely notice of appeal.
¶7          On appeal, the State contends that the trial court erred in granting the motion to suppress.
¶8          We initially note that defendant has not filed a brief in this court. However, as the issue is
       relatively simple, we may resolve it without the benefit of an appellee’s brief. See First Capital
       Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶9          Section 11-710 of the Illinois Vehicle Code (Code) proscribes “follow[ing] another vehicle
       more closely than is reasonable and prudent, having due regard for the speed of such vehicles
       and the traffic upon and the condition of the highway.” 625 ILCS 5/11-710(a) (West 2014). As
       the trial court noted, the statute provides no standards concerning what is “reasonable and
       prudent.”
¶ 10        Vehicle stops are subject to the fourth amendment’s reasonableness requirement. People v.
       Hackett, 2012 IL 111781, ¶ 20 (citing U.S. Const., amend. IV). A traffic stop may be justified
       on something less than probable cause. Id. ¶ 28. A traffic stop is more analogous to a Terry
       stop than to a formal arrest. See Terry v. Ohio, 392 U.S. 1 (1968). Thus, we analyze the
       reasonableness of a traffic stop under Terry principles. “A police officer may conduct a brief,
       investigatory stop of a person where the officer can point to specific and articulable facts
       which, taken together with rational inferences from those facts, reasonably warrant the
       intrusion.” Hackett, 2012 IL 111781, ¶ 20 (citing People v. Close, 238 Ill. 2d 497, 505 (2010)).
       The question is whether Officer Buckle had reasonable suspicion that defendant was following
       him at a distance that was not “reasonable and prudent.” 625 ILCS 5/11-710(a) (West 2014).
¶ 11        When reviewing a trial court’s ruling on a motion to suppress, the trial court’s findings of
       historical fact are reviewed only for clear error, giving due weight to any inferences drawn
       from these facts by the fact finder, and reversal is warranted only when those findings are
       against the manifest weight of the evidence. People v. Luedemann, 222 Ill. 2d 530, 542 (2006).
       However, a reviewing court may undertake its own assessment of the facts in relation to the
       issues and may draw its own conclusions when deciding what relief should be granted. Id. A
       trial court’s legal ruling as to whether suppression is warranted is subject to de novo review. Id.
¶ 12        In Wofford, the stop was made by a state trooper who “used a method of counting the
       dotted lines on the roadway to determine the time interval between the vehicles, based on the
       guidelines set forth in the Illinois Rules of the Road.” Wofford, 2012 IL App (5th) 100138,
       ¶ 25. The appellate court in Wofford held that it was objectively reasonable for the trooper to
       rely on the Rules of the Road guideline that a driver follows another vehicle too closely when
       there is less than a two-second interval between the vehicles. Id. ¶ 26. Whether a vehicle is
       following another vehicle too closely is a proper subject of lay opinion testimony under Illinois
       Rule of Evidence 701 (eff. Jan. 1, 2011), provided that there is a reasonable opportunity to
       observe the vehicle in question. Rule 701 provides:
                    “If the witness is not testifying as an expert, the witness’ testimony in the form of
                opinions or inferences is limited to those opinions or inferences which are (a) rationally
                based on the perception of the witness, and (b) helpful to a clear understanding of the
                witness’ testimony or the determination of a fact in issue, and (c) not based on
                scientific, technical, or other specialized knowledge within the scope of Rule 702.” Id.

                                                     -3-
¶ 13       Here, the State argues that if a motorist was traveling at 30 to 35 miles per hour and there
       was a vehicle one car length or less behind the motorist, when the motorist needed to brake, the
       other vehicle would not have enough time to stop to avoid an accident. The State also argues
       that “[i]mplicit in the reasonableness of an interval between two cars is the duty of a driver to
       maintain an interval between his car and the car in front of him sufficient to allow him to stop
       safely if the driver of the car ahead must stop suddenly.” Burgdorff v. International Business
       Machines, 35 Ill. App. 3d 192, 195 (1975). The State contends that the uncontested testimony
       shows that, while defendant followed Officer Buckle’s car for the length of a football field at a
       distance of one car length behind, she could not have stopped safely.
¶ 14       The fact that defendant followed Officer Buckle’s squad car at an interval of a car length or
       less for the distance of a football field while at a speed of 30 to 35 miles per hour was
       uncontested. Officer Buckle stopped defendant’s vehicle based on his observation and opinion
       that defendant was following him at an unsafe distance. We hold that Officer Buckle’s
       observation justified an investigatory traffic stop. “In judging a police officer’s conduct, we
       apply an objective standard, considering whether the facts available to the officer at the
       moment of the seizure justify the action taken.” Hackett, 2012 IL 111781, ¶ 29. The trial court
       was mistaken in believing that the State was required to show some “other indication” of issues
       with defendant’s driving ability in addition to following too closely in violation of section
       11-710 of the Code. 625 ILCS 5/11-710(a) (West 2014).
¶ 15       Accordingly, the judgment of the circuit court of De Kalb County is reversed and this
       cause is remanded for further proceedings.

¶ 16      Reversed and remanded.




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