People v. Dittmar

• Citation: 2011 IL App (2d) 091112,352 Ill.Dec. 403,954 N.E.2d 263
• Decision Date: 15 June 2011
• Docket Number: Nos. 2–09–1112,2–09–1304.,s. 2–09–1112
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellant,v.Jonathan M. DITTMAR, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 091112

954 N.E.2d 263

352 Ill.Dec. 403

The PEOPLE of the State of Illinois, Plaintiff–Appellant,

v.Jonathan M. DITTMAR, Defendant–Appellee.

Nos. 2–09–1112

2–09–1304.

Appellate Court of Illinois, Second District.

June 15, 2011.

John H. Vogt, State's Attorney of Freeport (Stephen E. Norris, Rebecca E. McCormick, both of State's Attorneys Appellate Prosecutor Office), Mt. Vernon, for People.Thomas A. Lilien and Sherry R. Silvern, both of State Appellate Defender's Office, Elgin and Jenette M. Schwemler, Zukowski, Rogers, Flood & McArdle, Crystal Lake, for Jonathan M. Dittmar.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

¶ 1 The State appeals from the orders of the circuit court of Stephenson County (1) granting the motion by defendant, Jonathan Dittmar, to quash his arrest and suppress evidence, (2) granting defendant's motion for leave to file, outside the 90–day statutory period (625 ILCS 5/2–118.1(b) (West 2006)), a petition to rescind his statutory summary suspension, and (3) granting defendant's petition to rescind his summary suspension. In case number 2–09–1112, the State appealed the suppression order. In case number 2–09–1304, the State appealed the orders granting defendant leave to file his petition to rescind and granting the petition. We consolidated the appeals and now reverse and remand.

¶ 2 I. Case Number 2–09–1112: Motion to Quash and Suppress

¶ 3 On September 7, 2008, defendant was arrested and ticketed for driving under the influence (DUI). On May 19, 2009, defendant filed a motion to quash his arrest and suppress evidence. The motion was heard on August 14, 2009.

¶ 4 The sole witness for the defense was defendant. He testified that, early in the morning on September 7, 2008, he was in his vehicle when a squad car pulled up from behind and activated its overhead emergency lights. At that point, defendant did not feel free to leave. When the police officer stopped behind him, defendant had not committed any traffic offenses or otherwise broken the law. Defendant testified that the police investigated him for DUI and ultimately arrested him.

¶ 5 The parties stipulated that, if called as a witness, Stephenson County sheriff's deputy Shan MacAdam, the arresting officer, would testify as follows:

“While on routine patrol[,] I was traveling north bound on Route 26 north of McConnell Road when I observed an oncoming south bound vehicle. The vehicle was traveling at a slow speed, [and] the right turn signal was activated a very short distance before the vehicles met. The vehicle, a white Chevrolet Cavalier convertible[,] had slowed greatly and was pulling to the shoulder of the roadway as I passed. The squad [car] was also traveling slowly[,] and I observed a white hat on the head of the driver.

After passing the vehicle[,] I turned the squad [car] around to check if the vehicle was having mechanical problems, or if there were problems with the occupants. As I approached the rear of the car[,] I observed the subject with the white hat walking from the driver door around the rear of the car and to the right passenger door. Another subject from the right side of the car was walking around the rear of the car to the driver door. Both doors were open as they changed sides of the car.

The subject wearing the white hat got into the passenger seat, while a female stood next to the open driver door as she watched the squad [car] stop behind her. She got into the driver seat as I stopped directly behind the white Chevrolet, bearing TX08/777CCJ.

I approached the driver door, which was still open, and immediately noted the strong odor of an alcoholic beverage flowing from the interior.”

¶ 6 The parties introduced into evidence the video of defendant's stop as recorded by Deputy MacAdam's dashboard camera. The clock on the video shows that the stop occurred at 5:58 a.m. The picture quality of the video is poor (as the parties and the trial court recognized), but it suffices to show the activity taking place. The ambient light was dim; either the sun had not yet risen or there was significant cloud cover. The area appeared rural; there were no street lights. No lights appeared to be activated on defendant's car. Traffic was sparse, with no more than 10 cars passing by during the entire encounter.

¶ 7 The video corroborates MacAdam's testimony as to the sequence of events, i.e., that defendant's car was already stopped when MacAdam pulled up behind it. What MacAdam's stipulated testimony did not convey is that, as he pulled onto the shoulder behind defendant's car, he activated his overhead emergency lights and gave the dispatcher the make, model, and license plate number of the car.

¶ 8 The video further shows that, as MacAdam came to a halt behind the stopped car, the woman who had been standing near the open driver's door sat in the driver's seat but kept the door open. MacAdam exited the squad car and, as he approached the woman, said, “Good morning. Is everything all right? What's the scoop?” After asking for driver's licenses from the woman and defendant, MacAdam asked defendant to step out of the car. When defendant complied, MacAdam asked him to perform field sobriety tests. After defendant failed the initial tests and refused to take the remainder, he was arrested. Approximately 36 seconds elapsed between MacAdam's activating his emergency lights and reaching the driver's door of the car.

¶ 9 Defendant argued to the trial court that, once MacAdam activated his emergency lights, he effected a seizure of defendant. Once he was seized, defendant argued, the encounter was by definition not a community-caretaking encounter. For support, defendant cited this district's comment in City of Highland Park v. Lee, 291 Ill.App.3d 48, 54, 225 Ill.Dec. 459, 683 N.E.2d 962 (1997), that “[o]nce a seizure has occurred, an officer is not acting in his community caretak[ing] function, even if his original intention had nothing to do with the detention or investigation of a crime.” Defendant further argued that MacAdam lacked reasonable and articulable suspicion of criminal activity. Defendant cited People v. Gray, 305 Ill.App.3d 835, 838–39, 239 Ill.Dec. 250, 713 N.E.2d 781 (1999), for its holding that, without more, a driver's act of switching places with a passenger does not supply grounds for a seizure. Defendant did not question that MacAdam's interaction with defendant gave MacAdam probable cause to arrest him for DUI.

¶ 10 The State replied that, because defendant's vehicle was already stopped, MacAdam's pulling behind the vehicle and activating his emergency lights could not have effected a seizure. The State alternatively argued that any seizure was justified as an exercise of community caretaking, because MacAdam had cause to attempt to “mak[e] sure that all the individual[s] [were] okay on the side of the road.” The State contended that MacAdam's use of his emergency lights was consistent with a community-caretaking purpose because it served to alert passing drivers to the cars stopped on the roadway shoulder.

¶ 11 The trial court, citing People v. Luedemann, 222 Ill.2d 530, 558, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006), found that defendant was seized once MacAdam activated his emergency lights. Without elaborating, the court also found that MacAdam lacked reasonable and articulable suspicion of criminal activity. As for the State's proffered community-caretaking rationale, the court said:

“Now I also comment that the Court believes that [MacAdam] acted properly to check on the car that had pulled over to the side of the road in the early morning hours; however[,] based on the Supreme Court's opinion in Luedemann, activating the overhead lights on the squad made the stop a seizure, thus implicating [defendant's] 4th Amendment rights.”

The court granted defendant's motion to quash his arrest and suppress evidence.

¶ 12 The State filed a motion to reconsider. The State now conceded that defendant was seized when MacAdam, his emergency lights activated, pulled behind defendant's stopped vehicle.¹ Citing several decisions, including Luedemann, People v. McDonough, 395 Ill.App.3d 194, 334 Ill.Dec. 764, 917 N.E.2d 590 (2009), aff'd, 239 Ill.2d 260, 346 Ill.Dec. 496, 940 N.E.2d 1100 (2010), People v. Robinson, 368 Ill.App.3d 963, 307 Ill.Dec. 232, 859 N.E.2d 232 (2006), and People v. Laake, 348 Ill.App.3d 346, 284 Ill.Dec. 203, 809 N.E.2d 769 (2004), the State argued that the seizure was justified on community-caretaking grounds. The trial court denied the motion to reconsider. The State filed a certificate of impairment and a timely notice of appeal.

¶ 13 As to our standard of review, we note that, though defendant testified that he had not broken the law when MacAdam approached, that testimony did not create a factual conflict relevant to the ground on which we reverse, namely, that MacAdam had a valid community-caretaking purpose for checking on the occupants of the stopped car. Consequently, our review is de novo. See People v. Gilbert, 347 Ill.App.3d 1034, 1038, 283 Ill.Dec. 885, 808 N.E.2d 1173 (2004) (where an appeal from a suppression ruling involves no dispute of historical fact, the appellate court reviews de novo the trial court's application of the law to the undisputed facts).

¶ 14 The State continues to concede “that when * * * MacAdam pulled his squad car behind the defendant's vehicle, with emergency lights activated, there was a seizure.” The State also does not argue that MacAdam, prior to approaching the car and smelling the odor of an alcoholic beverage, had reason to believe that a traffic infraction had occurred. Defendant for his part, does not dispute that, as MacAdam testified, MacAdam smelled the odor of an alcoholic beverage “immediately” upon reaching the open driver's door of the car. Nor does defendant dispute that the odor justified MacAdam in detaining him further, resulting ultimately in his arrest.

¶ 15 The point in...