People v. Smith, No. 2-02-0882.

• Court: Illinois Appellate Court
• Citation: 803 N.E.2d 1074,346 Ill. App.3d 146,281 Ill.Dec. 453
• Docket Number: No. 2-02-0882.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Travis SMITH, Defendant-Appellee.
• Decision Date: 30 January 2004

803 N.E.2d 1074
346 Ill. App.3d 146
281 Ill.Dec. 453

The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Travis SMITH, Defendant-Appellee

No. 2-02-0882.

Appellate Court of Illinois, Second District.

January 30, 2004.

803 N.E.2d 1077

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, Gregory L. Slovacek, State's Attorneys Appellate Prosecutor, Elgin, for the People

Chelsey Robinson, Maria R. Owens, Owens & Robinson, Chicago, for Travis Smith.

Justice KAPALA delivered the opinion of the court:

Defendant, Travis Smith, was charged by indictment with aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(l), (a)(3)(C) (West 2000)). Defendant moved to quash his arrest and suppress the handgun that was seized from his sleeve, contending that he did not give valid consent for the search of his person. The trial court granted the motion, and the State appeals. We reverse.

I. FACTS

The following evidence was presented at the suppression hearing. Kevin Driscoll testified that he has been a Naperville police officer for 18 years. At approximately 3:30 a.m. on February 24, 2002, he followed a vehicle onto Interstate 88 (I-88) from Naper Boulevard. When Driscoll stopped following that vehicle, he commenced a U-turn on I-88 in order to head back into the city. Immediately prior to making the U-turn, Driscoll observed a westbound vehicle pass at a very high rate of speed. Driscoll eventually stopped the westbound vehicle for speeding and failing to signal lane changes. The westbound vehicle was a 20-year-old Chevrolet Malibu with four occupants. Driscoll testified that the traffic stop occurred on I-88 approximately one mile west of Route 59. At that location, I-88 is a tollway with three lanes of traffic in each direction and a 55mile-per-hour speed limit. Access to the tollway is restricted by a chain-link fence that runs parallel to the roadway. There are no businesses in the vicinity. Driscoll had the driver exit the vehicle, gave him field sobriety tests, and thereafter arrested him for driving under the influence of

803 N.E.2d 1078

alcohol (DUI). After placing the driver into custody, Driscoll had the three passengers step out of the vehicle and identify themselves. They were defendant and two brothers, Willie and Edmond Reese. Officer Schnizlein arrived at the scene of the traffic stop to help Driscoll search the vehicle

Officer Driscoll engaged the three passengers in a conversation as to what they were going to do next. Driscoll said that the purpose of the conversation was to determine if one of the three men could drive the vehicle from the scene. Driscoll gave a preliminary breath test (PBT) to defendant and to one of the Reese brothers. Driscoll explained that the other Reese brother admitted that his driver's license was suspended. The PBTs indicated that both men were unfit to drive. Driscoll explained that he used the PBT on defendant and the Reese brother with the valid driver's license because the men told him that they were sober enough to drive, yet Driscoll opined that they were not acting sober. Driscoll said that the Reese brother with the suspended driver's license was the only passenger who showed signs of being sober. After determining that none of the three passengers could drive the vehicle from the scene, Driscoll informed the men that the vehicle was going to be towed and offered them a courtesy ride to the police station where they could make telephone calls to arrange for transportation. Driscoll also testified that, early on in the conversation with the three passengers, he gave them the option of using their cellular telephone to call someone to come and pick them up from the scene of the traffic stop, if someone could get them quickly enough. The older Reese brother, the intoxicated one, informed Driscoll that they were unable to reach anyone who would come and pick them up. Driscoll testified that defendant was cooperative. During his testimony Driscoll related to the court that it was his understanding that pedestrians are prohibited on the expressway except in emergency situations. Driscoll did not testify that he explicitly prohibited the men from departing on foot or that any of the men asked to do so. Driscoll did not, however, offer walking as an option. Driscoll ultimately turned the situation over to Officer Schnizlein and transported the driver to the police station.

On examination by defense counsel, Driscoll explained that if defendant had asked, he would have been permitted to wait for the tow truck to arrive and to ride from the scene of the traffic stop with the tow truck driver. Driscoll testified that he did not ask defendant if he wanted to do that because he felt that it was not his place and it would be up to the tow truck driver whether he could ride in the tow truck. When asked by defense counsel about the emergency exception to the prohibition of pedestrians on the tollway, Driscoll responded that "these gentlemen were intoxicated and I couldn't possibly sanction them walking on the expressway." Later Driscoll testified that he was concerned that the three men were going to be hit by someone if they were to walk along the tollway.

Officer Bruce Schnizlein testified that he has been a patrolman with the Naperville police department for over 24 years. On February 24, 2002, between 3, a.m. and 4 a.m., Schnizlein responded to a call by Officer Driscoll to assist at a traffic stop on I-88. When Officer Schnizlein arrived at the scene of the traffic stop, Officer Driscoll was administering field sobriety tests to the driver and there were three passengers inside of the stopped vehicle. After arresting the driver for DUI, Driscoll searched the vehicle while Schnizlein observed the passengers, who were standing behind the vehicle. After completing his

803 N.E.2d 1079

search of the vehicle, Driscoll had a conversation with the three passengers. Schnizlein was not party to that conversation. After Driscoll spoke to the passengers, they went back into the stopped vehicle and Driscoll had a conversation with Schnizlein. According to Schnizlein, Driscoll told him that he had informed the passengers that they could accept a courtesy ride to the police station and arrange transportation from there or they could call someone to pick them up at the scene of the traffic stop. Officer Schnizlein's understanding from his conversation with Driscoll was that the passengers could not make arrangements for someone to pick them up at the scene of the traffic stop and that they wanted to go to the police station. When Driscoll left with the driver, the three passengers remained in the stopped vehicle. At that point, Schnizlein requested that an additional officer come to the scene because the passengers were going to be transported to the police station. Schnizlein testified that it was department policy and procedure that anyone entering a squad car be frisked for weapons

When Officer Carlson arrived, Schnizlein told the passengers that their ride was there and that they would be driven to the police station. Ultimately, Officer Carlson transported the Reese brothers and Schnizlein transported defendant. Schnizlein testified that he asked defendant if he possessed any weapons and then advised him that it was department policy to frisk for weapons before allowing him to ride in the squad car. Defendant said that he had no weapons. When Schnizlein asked defendant if he would submit to the patdown search, defendant put his hands on the trunk of the car so that he could be searched. Schnizlein said that defendant complied with the pat-down search without objection. While patting down the outside of defendant's clothing, Schnizlein felt a bulge in defendant's left sleeve consistent with a weapon. When Schnizlein asked defendant what it was, defendant said that it was a handgun. Schnizlein recovered a loaded .25-caliber semiautomatic handgun from defendant's sleeve and placed defendant under arrest. Schnizlein insisted that the search was designed only to ensure officer safety during the trip to the station. Schnizlein said that defendant's attitude prior to the search was cooperative and polite. Schnizlein testified that the tow truck arrived about the time that he was conducting the pat-down search. Schnizlein never asked defendant if he wanted to be transported in the tow truck rather than being transported to the police station. Schnizlein testified that, prior to conducting the pat-down search, defendant was free to leave the scene of the traffic stop.

Following argument, the trial court asked the assistant State's Attorney to produce the statute, rule, or regulation that prohibits pedestrians on the interstate. The trial court continued the hearing for that purpose.

On the continued hearing date, the State produced some documents, but they are absent from the record. At the hearing, the State cited section 11-1010 of the Illinois Vehicle Code (Vehicle Code), which provides that "[a] pedestrian who is under the influence of alcohol or any drug to a degree which renders himself a hazard shall not walk or be upon a highway except on a sidewalk." 625 ILCS 5/11-1010 (West 2000). The State argued that section 11-1010 prohibited defendant from leaving the scene on foot, and therefore, the search incident to defendant's entry into the squad car was valid. The trial court rejected the argument, noting that there had been testimony only that defendant had failed a PBT and therefore was too intoxicated to drive, but no testimony

803 N.E.2d 1080

that defendant was so intoxicated that he could not walk safely. The court stated, "there's no evidence to show any other condition of the defendant that would have rendered him under the influence to a degree which renders himself a hazard upon the roadway."

The State orally moved to introduce additional testimony that defendant was too drunk to walk safely; and the court denied...