People v. DiPace, 2-03-0469.

• Court: United States Appellate Court of Illinois
• Citation: 288 Ill.Dec. 839,818 N.E.2d 774
• Docket Number: No. 2-03-0469.,2-03-0469.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lorenzo DiPACE, Defendant-Appellant.
• Decision Date: 30 September 2004

818 N.E.2d 774
288 Ill.Dec. 839

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Lorenzo DiPACE, Defendant-Appellant

No. 2-03-0469.

Appellate Court of Illinois, Second District.

September 30, 2004.

As Modified Upon Denial of Rehearing November 10, 2004.

818 N.E.2d 777

G. Joseph Weller, Deputy Defender (Court-appointed), Elgin, Michael J. Pelletier and Geoffrey J. Heeren (Court-appointed), Office of the State Appellate Defender, Chicago, for Lorenzo DiPace

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Paul Benjamin Linton, Northbrook, for the People.

Modified Upon Denial of Rehearing

Presiding Justice O'MALLEY delivered the opinion of the court:

Defendant, Lorenzo DiPace, appeals from his convictions of Class 2 felony driving under the influence of alcohol (625 ILCS 5/11-501(c-1)(3) (West 2002)), and Class 4 felony driving while license revoked (625 ILCS 5/6-303(d) (West 2002)). Defendant contends that (1) the trial court erred in denying his motion to suppress because the police lacked reasonable suspicion to stop his vehicle; (2) his breath alcohol analysis should not have been admitted by the trial court; (3) the State failed to prove his prior violations of the statutes as elements of both crimes; and (4) he cannot be convicted of both Class 2 felony driving under the influence and Class 4 felony driving while license revoked, because the crimes should be merged. We affirm.

818 N.E.2d 778

I. Facts

On February 14, 2002, two women were driving north on Interstate 355 when they noticed a red Mercury Mountaineer being driven erratically in front of them. After watching the car drift out of its lane and then jerk back into its lane several times, they called the police. They provided the dispatcher with a description of the car and its license plate number. They followed the Mountaineer as it exited onto Lake Street, where they watched it drift onto the shoulder, make contact with a raised curb, and also almost make contact with another car before finally pulling into a grocery store parking lot. While the two women waited in the parking lot for police to arrive, defendant exited the Mountaineer and went into the grocery store.

Defendant was still inside the grocery store when Officer Michael Gicla arrived on the scene. The two women relayed to Gicla what they had seen. They pointed out defendant's car, which was parked in a relatively isolated area in the parking lot, and they described the driver as a white male, possibly in his forties. After providing Gicla with their names, birth dates, and phone numbers, the two women departed. One of the women later testified at trial.

From his police car, Gicla watched the Mountaineer until he saw defendant return to his car and drive out of the parking lot. He followed defendant for approximately one mile before he saw defendant's car cross onto the dotted white lane-dividing lines. Gicla then activated his police lights to pull over defendant's car. Defendant slowed and continued driving for approximately one-half mile, passing a few minor streets, before pulling over at the next major intersection.

When Gicla approached defendant's car, he noted a strong odor of alcohol on defendant's breath. Gicla also noted that defendant's speech was noticeably slurred. Defendant claimed that he had consumed 1 1/2 beers. Gicla asked defendant to provide a driver's license, which defendant was unable to do. Gicla then asked defendant to exit the car so that Gicla could administer some field sobriety tests. As the two walked to the front of defendant's vehicle to perform the tests, Gicla noted that defendant had unsteady balance and was stutter-stepping and swaying as he walked. Gicla asked defendant to walk nine steps in a straight line, heel to toe, then turn and walk nine steps back to his starting point. Defendant attempted to comply, but he could not muster the balance to complete the test. He almost fell over trying to turn around after only seven steps. At that point, defendant informed Gicla that back and leg injuries would prevent him from completing the test.

Gicla asked him to perform a finger dexterity test, whereby defendant was required to touch his thumb to his other fingers and simultaneously count to four, and then go back through the same sequence in reverse. Defendant was unable to complete the task as instructed. Gicla then asked defendant to recite part of the alphabet, which defendant also was unable to do correctly. Gicla then arrested defendant and took him to the police station.

At the police station, Gicla continued to observe defendant before a breath alcohol analysis test was administered. The breath analysis showed that defendant had a blood-alcohol level of 0.246. The breath analysis machine had been certified as operational on February 12, 2002, and it gave a reading of 0.000 for blank air just before defendant's reading. The machine was certified again on March 15, 2002, the same day that it was replaced because of "frequent false mouth alcohol display," which meant that the machine's mouth alcohol detector was incorrectly detecting

818 N.E.2d 779

the presence of alcohol in the mouth of a test subject and aborting the breath test

After a bench trial, defendant was found guilty of Class 2 felony driving under the influence and Class 4 felony driving with a revoked license. He timely appeals. Pursuant to the discussion below, we affirm the judgment of the trial court.

II. Discussion

As a threshold matter, the State argues that defendant's issues on appeal are waived because defendant did not file a posttrial motion preserving those issues. Although a written posttrial motion is generally required to preserve an issue for appeal (People v. Enoch, 122 Ill.2d 176, 185-87, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988)), a posttrial motion is not necessary to preserve questions in a bench trial if the issues were presented to the trial court (People v. Crowder, 174 Ill.App.3d 939, 941, 124 Ill.Dec. 366, 529 N.E.2d 83 (1988)). Therefore, defendant has not waived his arguments in this case, and we must address the merits of his appeal.

Defendant's first argument on appeal is that the State lacked adequate grounds to stop his vehicle and thus that the trial court erred in denying his motion to suppress evidence discovered pursuant to that stop. The fourth amendment to the United States Constitution protects individuals from unreasonable searches and seizures of their persons and property. U.S. Const., amend. IV. Although a warrant supported by probable cause is generally required for a search or seizure to be considered reasonable under the fourth amendment, under Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968), an officer may make a valid investigatory stop without probable cause when the officer reasonably infers from all the facts and circumstances that a person is committing, has committed, or is about to commit a crime. People v. Welling, 324 Ill.App.3d 594, 599-600, 258 Ill.Dec. 230, 755 N.E.2d 1049 (2001). In order to stop a vehicle, an officer must have a reasonable suspicion that the vehicle or an occupant is subject to seizure for a violation of law. People v. Greco, 336 Ill.App.3d 253, 257, 270 Ill.Dec. 626, 783 N.E.2d 201 (2003). Such reasonable suspicion must be based on specific, articulable facts; a mere hunch is insufficient. Greco, 336 Ill.App.3d at 257, 270 Ill.Dec. 626, 783 N.E.2d 201; Welling, 324 Ill.App.3d at 600, 258 Ill.Dec. 230, 755 N.E.2d 1049. A court will use a totality-of-the-circumstances approach in determining whether an officer's suspicion was reasonable. People v. Ertl, 292 Ill.App.3d 863, 870, 226 Ill.Dec. 955, 686 N.E.2d 738 (1997). Only the facts known to the officer at the time of the stop can be considered in determining whether it was proper — information gained after the stop is made must be disregarded. Village of Mundelein v. Thompson, 341 Ill.App.3d 842, 848, 276 Ill.Dec. 237, 793 N.E.2d 996 (2003). We review de novo the trial court's legal determination of defendant's motion to suppress. Welling, 324 Ill.App.3d at 599, 258 Ill.Dec. 230, 755 N.E.2d 1049.

While reasonable cause to stop an individual may be based on an informant's tip, some indicia of the tip's reliability must be provided to justify the stop. Adams v. Williams, 407 U.S. 143, 145-48, 92 S.Ct. 1921, 1922-24, 32 L.Ed.2d 612, 616-18 (1972); Village of Gurnee v. Gross, 174 Ill.App.3d 66, 69-70, 123 Ill.Dec. 866, 528 N.E.2d 411 (1988). Corroboration of details of the informant's tip supports the veracity and reliability of that tip. See People v. Smith, 258 Ill.App.3d 1003, 1017, 196 Ill.Dec. 903, 630 N.E.2d 1068 (1994) (stating the rule in the context of finding probable cause); see also Ertl, 292 Ill.App.3d at 869, 226 Ill.Dec. 955, 686 N.E.2d 738 (stating that the reliability determinations

818 N.E.2d 780

for probable cause and reasonable suspicion are analogous, with an allowance given for the lower standard of reasonable suspicion). Tips from known informants are more reliable than those from anonymous informants, because a known informant's veracity, reputation, and basis of knowledge may be assessed by the investigating officer. See Florida v. J.L., 529 U.S. 266, 269, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254, 259 (2000). The fact that the information supporting the officer's reasonable suspicion came from the victim or an eyewitness does not make the tip presumptively reliable, but it is entitled to particularly great weight in evaluating the informant's reliability. People v. Aguilar, 286 Ill.App.3d 493, 496-97, 221 Ill.Dec. 803, 676 N.E.2d 324 (1997); Ertl, 292 Ill.App.3d at 870, 226 Ill.Dec. 955, 686 N.E.2d 738. When a tip comes from an identifiable witness, only a minimum of corroboration or other verification of the reliability of the information is required, because the witness puts...