Village of Gurnee v. Gross

• Decision Date: 30 August 1988
• Docket Number: 2-87-1158,Nos. 2-87-1157,s. 2-87-1157
• Citation: 528 N.E.2d 411,174 Ill.App.3d 66,123 Ill.Dec. 866
• Parties: , 123 Ill.Dec. 866 The VILLAGE OF GURNEE, Plaintiff-Appellant, v. Larry J. GROSS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 411

528 N.E.2d 411

174 Ill.App.3d 66, 123 Ill.Dec. 866

The VILLAGE OF GURNEE, Plaintiff-Appellant, v. Larry J. GROSS, Defendant-Appellee.

Nos. 2-87-1157, 2-87-1158.

Appellate Court of Illinois Second District.

Aug. 30, 1988.

Dennis P. Daly, Daly & Daly, Waukegan, for Village of gurnee.

Fred L. Foreman, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director State's Attys. Appellate Prosecutor, Elgin, for the People.

Michael J. Salvi, Salvi & Salvi, Lake Zurich, for Larry J. Gross.

Justice NASH delivered the opinion of the court:

In these consolidated cases, the Village of Gurnee (Village) appeals from an order quashing the arrest of defendant, Larry Gross, and suppressing evidence of defendant's intoxication which the trial court found was obtained by a police officer as a result of an impermissible stop of defendant's automobile. We reverse.

At the hearing on defendant's suppression motion, Officer Thomas Agos testified that at about 11:30 p.m. on August 28, 1987, while on patrol in his marked police car, he received a radio dispatch from the police department to investigate a reckless driving complaint in the 4200 block of Blackstone in the Village of Gurnee. The automobile which was purported to have been driven recklessly was described by the police dispatcher as a blue Camaro with license number BMG697. Agos proceeded to the area, which was three-quarters of a mile away, and as he was turning southbound on First Street, he saw the car described in the dispatch traveling northbound on First Street and approaching a stop sign at the intersection. The officer, who was in uniform, stopped his squad car within five feet of the Camaro, turned on his overhead red Mars lights, rolled down his window, and asked defendant, who was the driver of the Camaro, to pull his car over. Agos testified that defendant looked at him and then proceeded to drive northbound through the intersection. Agos, with his overhead lights still on, turned his squad car around and followed defendant for three blocks where defendant pulled his car over to the curb. When Agos walked up to defendant's car he noticed that defendant's eyes appeared bloodshot and glazed, and, when he requested defendant to get out of the car, he appeared unsteady. Agos advised defendant the police department had received a complaint of a reckless driver in the 4200 block of Blackstone and had been given a description of defendant's car and license number. The officer inquired whether defendant had any knowledge of such driving and was advised defendant did not. The officer noticed an odor of alcohol on defendant's breath and that his speech was slurred; he conducted two or three field sobriety tests, which defendant could not perform well, and then arrested defendant for operating a motor vehicle while under the influence of alcohol.

Defendant testified at the suppression hearing that he first noticed the police car's overhead lights in his rearview mirror while he was driving, and that he stopped four or five blocks later. Defendant further stated that he was not speeding or doing anything illegal at that time, and the officer did not issue any citations other than for driving under the influence of alcohol. The parties stipulated that there was no outstanding warrant for defendant's arrest.

No other evidence was presented at the suppression hearing relating to the source of or factual basis for the complaint of reckless driving received by the police department and transmitted to Officer Agos. Nor was any inquiry made to defendant whether or not he had seen or heard the officer request him to pull over at the stop sign. The trial court granted defendant's motion to quash his arrest and suppress evidence of intoxication, finding that Officer Agos lacked grounds or cause to stop defendant, even to effect a "Terry" stop, as no evidence had been offered relating to the basis for the reckless driving complaint or the identity and reliability of the complainant.

The Village contends that the fact of the reckless driving complaint, coupled with Officer Agos' observance of the described car and defendant's failure to stop when requested to do so, raised a reasonable inference that defendant had committed the offenses of reckless driving (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-503), fleeing or eluding a police officer (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-204), or obstructing the performance of a peace officer (Ill.Rev.Stat.1985, ch. 38, par. 31-1). It also argues that defendant's flight from the officer provided sufficient articulable facts in itself to justify an investigatory stop.

Defendant contends that because the State failed to produce evidence that he had done anything illegal or was acting suspiciously prior to being stopped, and no evidence was produced that the reckless driving complaint had any indicia of reliability, the investigatory stop was improper and the evidence of intoxication acquired after defendant was illegally stopped was required to be suppressed.

On a motion to suppress evidence, the defendant has the burden to make a prima facie showing that the evidence was obtained by an illegal search and seizure (People v. Neal (1985), 109 Ill.2d 216, 218, 93 Ill.Dec. 365, 486 N.E.2d 898; People v. Berg (1977), 67 Ill.2d 65, 68, 7 Ill.Dec. 589, 364 N.E.2d 880), and once made, the burden of going forward with evidence demonstrating legal justification for the seizure shifts to the State. (People v. Burton (1985), 131 Ill.App.3d 153, 156, 86 Ill.Dec. 369, 475 N.E.2d 583.) A reviewing court will not reverse the trial court's finding on a motion to suppress evidence unless the finding is manifestly erroneous. People v. Reynolds (1983), 94 Ill.2d 160, 165, 68 Ill.Dec. 122, 445 N.E.2d 766.

Illinois' codification of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, provides that a peace officer may stop a person in a public place for a reasonable period of time when the circumstances reasonably imply that the person is, has, or is about to commit a violation of an Illinois penal statute. (Ill.Rev.Stat.1985, ch. 38, pars. 107-14, 102-15.) To be reasonable a stop must be based on specific and articulable facts; an unparticularized suspicion or hunch is insufficient. (Terry v. Ohio (1968), 392 U.S. 1, 21-27, 88 S.Ct. 1868, 1880-83, 20 L.Ed.2d 889, 906-09; People v. McGowan (1977), 69 Ill.2d 73, 77-78, 12 Ill.Dec. 733, 370 N.E.2d 537, cert. denied (1978), 435 U.S. 975, 98 S.Ct. 1624, 56 L.Ed.2d 69; People v. Vena (1984), 122 Ill.App.3d 154, 160-61, 77 Ill.Dec. 582, 460 N.E.2d 886.) While a police officer may rely on information received through police communication channels, including radio messages, to...