People v. Fullwiley

• Decision Date: 19 April 1999
• Docket Number: No. 2-97-0773,2-97-0773
• Citation: 237 Ill.Dec. 861,304 Ill.App.3d 44,710 N.E.2d 491
• Parties: , 237 Ill.Dec. 861 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keveen FULLWILEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 491

710 N.E.2d 491

304 Ill.App.3d 44, 237 Ill.Dec. 861

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keveen FULLWILEY, Defendant-Appellant.

No. 2-97-0773.

Appellate Court of Illinois Second District.

April 19, 1999.

G. Joseph Weller, Deputy Defender, Kathleen J. Hamill (Court appointed), Office of the State Appellate Defender, Elgin, for Keveen Fullwiley.

Michael J. Waller, Lake County State's Atty., Waukegan, Martin P. Moltz, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, Barry W. Jacobs, Chicago, for People.

Presiding Justice BOWMAN delivered the opinion of the court:

Defendant, Keveen Fullwiley, was charged by information with unlawful possession of cannabis (720 ILCS 550/4(d) (West 1996)), unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 1996)), resisting a peace officer (720 ILCS 5/31-1 (West 1996)), and unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)). The charges arose from a February 2, 1997, roadblock safety check conducted by the Waukegan police department at the intersection of Butrick and Brookside in Waukegan. Defendant now appeals the trial court's order denying his motion to suppress. We reverse and remand.

The facts relevant to the disposition of this appeal are as follows. On April 4, 1997, defendant filed a motion to suppress. A hearing on the motion was held on April 9, 1997. The hearing commenced with the testimony of Keith Zupeck, a police officer with the City of Waukegan. Zupeck testified that on February 2, 1997, Sergeant Quinn, his supervisor, instructed him to conduct a roadblock safety check and to stop every fifth vehicle traveling in the northbound lanes at the intersection of Butrick and Brookside. According to Zupeck, Sergeant Quinn selected the location and method of the roadblock. The purpose of the roadblock was to check for valid license, insurance, and registration. Zupeck was on assignment with Officer DeBaufer. Both officers wore uniforms and drove police vehicles.

Zupeck testified that defendant was a passenger in a vehicle that he stopped at the roadblock at approximately 6:10 p.m. Zupeck initially stopped the vehicle by himself. When the vehicle was stopped, Zupeck observed that there were four occupants, three males and one female, in the vehicle. After Zupeck advised the driver of the reason for the stop, the driver gave Zupeck an insurance card, but he did not have a driver's license. Thereafter, Zupeck asked the occupants to step out of the vehicle "one at a time." He asked them to exit the vehicle so that he could perform a "safety pat down." He explained that the reason he felt that he needed to perform a "safety pat down" was because there were four people in the vehicle and he "couldn't keep [his] eyes on them at all times." He wanted to pat them down for his own safety.

Zupeck began the patdown with the driver of the vehicle. After he performed the patdown of the driver, Zupeck ordered the driver to step to the rear of the vehicle. Defendant was the third person to step out of the vehicle. After defendant exited the vehicle, Zupeck performed a patdown search and located a hard object in defendant's front right pocket of his pants. Zupeck believed that the object was possibly a knife. Based on this belief, he removed the object from defendant's pocket. Zupeck discovered that the object consisted of a lighter and a clear plastic baggy. He observed that the plastic baggy contained several small white rocks. While Zupeck was observing the contents of the plastic baggy, defendant fled. Thereafter, Zupeck pursued him, and defendant was apprehended approximately one block away with the assistance of other officers. Once defendant was apprehended, Zupeck arrested him.

During cross-examination, Zupeck testified that Sergeant Quinn verbally explained the procedure by which to conduct the roadblock. Zupeck did not know whether the roadblock was publicized. Zupeck did not issue the driver of the vehicle a ticket; the driver had a valid driver's license when Zupeck checked his name. He admitted that he did not observe any of the occupants commit any criminal offense, nor did he have any suspicion that they were committing any offense. He also admitted that none of the occupants gave him any suspicion that they were carrying weapons. He did not ask the occupants if he could perform a patdown, and defendant did not give Zupeck permission to search him.

Defendant's first witness was Antoine Taylor. Taylor testified that he was the driver of the vehicle. A police officer stopped Taylor and informed him that the stop was a safety stop. Taylor stated that the officer did not ask him for his license, insurance, and registration but instead asked him to exit the car. After Taylor exited the car, the officer performed a patdown. Thereafter, the officer asked the female occupant to exit the car, but he did not search her. However, the officer did search the remaining occupants once they exited the vehicle.

Defendant testified that he was a passenger in the vehicle that was stopped. A police officer asked the driver of the vehicle for his license and proof of insurance. Thereafter, the officer asked each occupant to exit the car. When defendant exited the car, the officer searched him, and defendant fled. On cross-examination, defendant admitted that he ran from the officer because the officer removed drugs from defendant's pocket.

At the conclusion of the hearing, the trial court denied the motion. In denying the motion, the court made the following statements:

"Well, the defendant and witnesses testified to some degree differently and the defendant himself indicated that he saw the lights when he was pulled over and asked for a driver's license and insurance and so forth.

And then he was asked to get out and be searched. Whereas Taylor indicated he just pulled him over and had him get out.

He also indicated that he had his license. I don't think the defendant indicated one way or the other as to that.

The Officer indicates that he did pull them over. He asked for insurance and license and he did not have a license. He had insurance. It was at that point that he had everyone get out of the car. It seems to be corroborated by the defendant himself and what he said.

So now, he has a driver without a license, according to the officer, although the actual driver said he did have his license. And it's at this point that he asked people to get out of the car.

Ultimately the officer also said he ran him and didn't show he had a ticket. He did have a valid license just not on his person. So he issued no ticket for him.

I understand at this point he is going to run him and it's going to lead [sic] four people in a car that he has pulled over. So I can understand that he needs to do the pat-down. It's probably less of an inconvenience to pat-down everybody and run the license then [sic] it is just to issue tickets, perhaps arrest him for no valid license. So I will deny the motion."

Following the denial of defendant's motion to suppress, on April 25, 1997, the State nol-prossed the unlawful possession of cannabis, unlawful possession of cannabis with intent to deliver, and resisting a peace officer charges, and the case proceeded to a bench trial. On June 18, 1997, the trial court found defendant guilty of unlawful possession of a controlled substance, sentenced him to a five-year extended term, and awarded him credit for time served. The trial court also recommended the impact incarceration program. Defendant subsequently filed a timely notice of appeal.

Defendant raises one contention on appeal: the trial court erred in denying his motion to suppress because the stop violated his fourth amendment rights and the search was unreasonable. He relies on People v. Adams, 293 Ill.App.3d 180, 227 Ill.Dec. 286, 687 N.E.2d 536 (1997), as support for the proposition that the roadblock was unconstitutional. Defendant maintains that the only purpose of the roadblock was to check for valid license, insurance, and registration. In weighing the objective aspect of the intrusion, he argues that the roadblock caused physical intrusion. Defendant also argues that the stop was subjectively intrusive because it was not ordered by a politically accountable authority figure; Zupeck was not provided with written guidelines to conduct the roadblock; the roadblock took place on a Saturday evening, which was likely to aggravate anyone subject to the stop; the method employed to stop vehicles was not readily apparent to motorists; those ordered to step outside the vehicle were exposed to fear and concern; and there was no evidence as to the measures taken to inform the public of the stop. Defendant maintains that less intrusive methods to enforce the license, insurance, and registration requirements could have been employed.

The State replies that the public interest in ensuring that motorists have valid license, insurance, and registration, namely, safety, is more compelling than the public interest in ensuring compliance with the city sticker requirement in People v. Adams, 293 Ill.App.3d 180, 227 Ill.Dec. 286, 687 N.E.2d 536 (1997). It also argues that the objective intrusion to drivers who produced valid license, insurance, and registration was not substantial. The State asserts that the subjective intrusion was minimal because the roadblock was performed in accordance with established guidelines and the officer exercised limited discretion.

The fourth amendment to the United States Constitution provides that "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. It is well settled that a roadblock constitutes a seizure for purposes of the fourth amendment. Michigan Department of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412, 420 (1990); ...