People v. Smith
| Decision Date | 24 March 2005 |
| Docket Number | No. 98014.,98014. |
| Citation | 214 Ill.2d 338,292 Ill.Dec. 915,827 N.E.2d 444 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Travis SMITH, Appellant. |
| Court | Illinois Supreme Court |
Chelsey Robinson, Maria R. Owens, of Owens & Robinson, Chicago, for appellant.
Lisa Madigan, Attorney General, Springfield, Joseph E. Birkett, State's Attorney, Wheaton (Gary Feinerman, Solicitor General, Linda D. Woloshin, Assata N. Peterson, Assistant Attorneys General, Chicago, of counsel), for the People.
Defendant, Travis Smith, was charged by indictment with aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2000)) after a police officer seized a handgun from his sleeve during a pat-down search. The circuit court of Du Page County allowed defendant's motion to quash his arrest and suppress the handgun from evidence. The State appealed, and the appellate court reversed and remanded. 346 Ill.App.3d 146, 281 Ill.Dec. 453, 803 N.E.2d 1074. At issue before this court is the validity of defendant's consent to the pat-down search. We hold that defendant's consent was voluntary, and that it was not the result of an unlawful seizure. Accordingly, we affirm the judgment of the appellate court.
The following evidence was presented at the hearing on defendant's motion to quash arrest and suppress evidence. On February 24, 2002, at approximately 3:30 a.m., Naperville police officer Kevin Driscoll stopped a car with four occupants for speeding and failing to signal lane changes. The stop took place roughly one mile west of the Route 59 exit on Interstate 88 (I-88). In that area, I-88 is a six-lane tollway with a 55-mile-per-hour speed limit. Access to it is restricted by a chain-link fence, and there are no businesses in the immediate vicinity.
Officer Driscoll conducted field sobriety tests on the driver of the vehicle, Demond Taylor. At this time, Naperville police officer Bruce Schnizlein, who had been called for backup, was also present. He observed Officer Driscoll conduct the field sobriety tests. Officer Driscoll placed Taylor under arrest for driving under the influence of alcohol (DUI). He then asked the three passengers — defendant and brothers Willie and Edmond Reese — to exit the car and identify themselves. Afterward, with Officer Schnizlein's help, Officer Driscoll searched the car.
Upon completing the search, Officer Driscoll engaged in a conversation with defendant and the Reese brothers in which he attempted to determine if one of them could drive the car. One of the Reese brothers admitted his driver's license was suspended. The other Reese brother and defendant did not appear sober to Officer Driscoll, and he administered a preliminary breath test to each. According to Officer Driscoll, the breath test results indicated neither individual was fit to drive. Officer Driscoll informed the Reese brothers and defendant that, since none of them could drive the car, the car was going to be towed. He testified that the men were told they could arrange for someone to pick them up from the roadside, and that one of them had a cellular telephone in his possession. He further testified that one of the Reese brothers informed him the men were unable to reach anyone to come pick them up. Officer Driscoll also explained that he offered the men a courtesy ride back to the Naperville police station. He could not recall talking specifically to defendant about the possibility of accepting the courtesy ride.
During his testimony, Officer Driscoll related that it is his belief that pedestrians are prohibited from walking alongside I-88, and that the shoulder area is "for emergency stopping only." In response to a question about emergency use of the shoulder, he testified that he "couldn't possibly" have authorized the intoxicated men to walk along the tollway. While Officer Driscoll did not offer the men the option of walking to the Route 59 exit, he did not testify that he explicitly prohibited the men from departing on foot, or that any of them requested his permission to do so.
After defendant and the Reese brothers spoke with Officer Driscoll, they reentered the car, and Officer Driscoll had a brief conversation with Officer Schnizlein. Officer Schnizlein testified that, based on this conversation, it was his understanding that Officer Driscoll had offered defendant and the Reese brothers the alternatives of riding back to the police station in a police car, where they could then arrange for someone to pick them up, or calling someone to pick them up directly from the roadside. It was also Officer Schnizlein's understanding that the three men were unable to arrange for a ride directly from the roadside, and that they wanted to go to the police station. Officer Schnizlein initially stated he could not recall whether any of the men had a cellular phone. When allowed to refresh his memory using a police property report, he testified no cellular phone was found on defendant's person, but maintained he could not recall whether either of the Reese brothers had a phone.
Once Officer Driscoll had described the situation to Officer Schnizlein, Officer Driscoll turned responsibility for the three men over to Officer Schnizlein and left to transport Taylor to the Naperville police station. Shortly after Officer Driscoll departed, Officer Carlson of the Naperville police department arrived in his squad car to help Officer Schnizlein transport the men off of I-88. Officer Schnizlein and Officer Carlson briefly conferred with one another, and Officer Schnizlein instructed defendant and the Reese brothers to exit the car. At that point, Officer Schnizlein explained to the men that they were going to be taken to the Naperville police station. He asked them if they were carrying any weapons and advised them that the Naperville police department's policy is to search individuals for weapons prior to transporting them in a police vehicle. Defendant said he did not have any weapons, and Officer Schnizlein asked if he could perform a pat-down search on defendant. Defendant responded by facing Officer Schnizlein's squad car and placing his hands on the trunk. Officer Schnizlein then patted down the exterior of defendant's clothing and located a bulge in defendant's left sleeve. When Officer Schnizlein asked defendant what the bulge was, defendant stated it was a handgun. Officer Schnizlein recovered the handgun from defendant's sleeve and placed defendant under arrest. According to Officer Schnizlein, prior to the time defendant was searched, he was free to leave the area, but never tried to depart.
At approximately the same time Officer Schnizlein was conducting the pat-down search, the tow truck Officer Driscoll had called arrived. Officer Driscoll did not offer the men the option of riding in the tow truck. He testified, however, that if defendant had asked to wait for the tow truck and travel with the tow truck driver, "[i]t probably wouldn't have been objectionable * * * at all." He further testified that the reason he did not ask defendant if defendant wanted to ride in the tow truck was that it was not his place to do so, as the decision would be up to the tow truck driver. Officer Schnizlein, like Officer Driscoll, did not offer the men the option of riding in the tow truck.
Officer Schnizlein estimated that the time he spent on the scene prior to conducting the search was 20 to 30 minutes. Both Officer Driscoll and Officer Schnizlein testified that, throughout the course of their encounter with defendant, defendant was cooperative and polite. Ultimately, Officer Schnizlein transported defendant from the scene, and Officer Carlson transported the Reese brothers, both of whom had consented to pat-down searches.
At the conclusion of the argument on defendant's motion, the circuit court continued the hearing to allow the State to produce a statute, rule, or regulation prohibiting pedestrians from walking on highways. On the continued hearing date, the circuit court issued a memorandum opinion allowing defendant's motion to quash arrest and suppress evidence. It also rejected the State's argument that it was necessary to transport defendant in the squad car and reasonable to search him before doing so because section 11-1010 of the Illinois Vehicle Code prohibited defendant from departing the scene of his encounter with the Naperville police on foot. Section 11-1010 prohibits any pedestrian under the influence of alcohol who is a "hazard" from being "upon a highway except on a sidewalk." 625 ILCS 5/11-1010 (West 2000). The circuit court reasoned that, despite evidence defendant failed a preliminary breath test, there was no evidence he was so intoxicated as to be a "hazard" within the meaning of section 11-1010. The State orally moved to reopen proof with respect to defendant's intoxication, but the circuit court denied this motion. The State also indicated the possibility that it would move to reopen proof on the general permissibility of pedestrian usage of I-88, but did not formally do so.
In the circuit court's memorandum opinion, it found defendant consented to the search of his person, as evinced by the facts that the search was not preceded by any accusatory questions by the officers, there was no indication of any hostility between defendant and the officers, there was no indication of any show of authority by the officers, and the request to search was made on the basis of a police policy dictating that no civilian could ride in a police vehicle without first being searched. The court also found, however, that the actions of the police that occurred prior to defendant's consent affected its validity. Specifically, the court noted that Officer Driscoll's testimony that he was concerned about giving the men permission to walk to the Route 59 exit because of the preliminary breath test results was "somewhat contradicted" by his testimony that he...
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