People v. Close ( 2010 )

Docket No. 108459.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARC
A. CLOSE, Appellant.
Opinion filed October 21, 2010.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Freeman, Thomas, Kilbride, Garman, and Karmeier
concurred in the judgment and opinion.
Justice Burke dissented, with opinion.
OPINION
Defendant, Marc A. Close, was charged by indictment with one
count of felony driving while license revoked (625 ILCS 5/6–303(d)
(West 2006)). The circuit court of La Salle County granted
defendant’s motion to quash arrest and suppress evidence, finding the
stop of defendant’s vehicle was unlawful because the officer had no
reasonable, articulable suspicion that defendant was driving outside
the terms of his restricted driving permit (RDP). The appellate court
reversed and remanded for further proceedings. 389 Ill. App. 3d 228.
For the reasons stated below, we affirm the judgment of the
appellate court.
BACKGROUND
On August 7, 2007, defendant was indicted by a La Salle County
grand jury on one count of felony driving while license revoked. The
indictment alleged that on June 24, 2007, defendant knowingly drove
a 1987 Chevrolet vehicle upon a public highway in LaSalle, Illinois, at
a time when his license was revoked, and that the basis for the
revocation was a conviction for driving under the influence of alcohol.
The indictment also alleged that defendant previously had been
convicted of the offense of driving while license revoked, and that the
basis for that revocation was also a conviction for driving while under
the influence of alcohol. See 625 ILCS 5/11–501 (West 2006).
Defendant filed a motion to quash his arrest and suppress
evidence. At the hearing, Officer Thomas Belski of the LaSalle police
department testified that on Sunday, June 24, 2007, at 7:13 p.m. he
was on routine patrol. He ran a registration check of a 1987 Chevrolet
pickup on his mobile computer, which disclosed that the license of the
registered owner, defendant, had been revoked. The computer also
disclosed that the owner had been issued an RDP, but did not disclose
the terms of the RDP. Belski testified that the person driving the
pickup truck strongly resembled the photograph of the owner that he
was able to pull up on his computer. Belski stopped the vehicle, asked
defendant if he was aware his license was revoked, and subsequently
arrested defendant for driving while license revoked. Prior to the stop,
Belski did not observe defendant commit any traffic violation.
Defense counsel asked Belski, “The reason that you stopped the
vehicle [was] because you had a hunch that he [defendant] was not
driving within the periods of his restricted driving permit, isn’t that
correct?” Belski answered, “Yes, I did.” Belski later explained that
based on his experience, an RDP is typically issued for work or
hardship, and prior to stopping defendant, he took into account the
day of the week–Sunday; the time of day–7:13 p.m.; and defendant’s
clothing–a tank top, baseball cap, and sunglasses.
Relying on People v. Johnson, 379 Ill. App. 3d 710 (2008),
defendant argued that Officer Belski’s hunch that defendant was
driving outside the parameters of his RDP did not provide an adequate
basis for the vehicle stop. The trial court agreed and granted
defendant’s motion to suppress. The State subsequently filed a
certificate of substantial impairment and notice of appeal. See 210 Ill.
-2-
2d R. 604(a)(1); People v. Young, 82 Ill. 2d 234, 247 (1980).
The appellate court reversed and remanded for further
proceedings. 389 Ill. App. 3d at 234. The majority expressly declined
to follow Johnson and held that “the mere existence of an RDP does
not extinguish an officer’s reasonable and articulable basis to believe
the officer has witnessed a revoked driver traveling on a highway of
this state, in violation of the provisions of the Vehicle Code.” 389 Ill.
App. 3d at 233. The appellate court reasoned that the language of
section 6–303 of the Illinois Vehicle Code, which establishes the
offense of driving while license revoked, demonstrates that the
issuance of an RDP is a statutory defense and not an additional
element that the State is required to prove. 389 Ill. App. 3d at 232-33.
Accordingly, “an officer is not required to determine or verify the
scope of the restricted driving permit before performing a traffic stop
when a reasonable articulable basis exists to believe the license of the
person behind the wheel is revoked.” (Emphasis in original.) 389 Ill.
App. 3d at 233.1 The dissenting justice would have followed Johnson,
stating that “in order to effectuate a valid traffic stop, *** an officer
must have a reasonable articulable suspicion that the driver is
operating the vehicle outside the terms of his/her RDP.” 389 Ill. App.
3d at 237 (McDade, J., dissenting).
We allowed defendant’s petition for leave to appeal. 210 Ill. 2d R.
315.
1
Though the appellate court majority quoted a version of section 6–303
that appeared in the 2007 supplement to West’s 2006 Illinois Compiled
Statutes (625 ILCS 5/6–303 (West Supp. 2007)), the statutory amendments
reflected in the 2007 supplement were not effective at the time of the vehicle
stop at issue here. Rather, the version of section 6–303 of the Illinois
Vehicle Code set forth in West’s 2006 Illinois Compiled Statutes (625 ILCS
5/6–303 (West 2006)) applies to the present case and it is that section which
will be cited in this opinion. We note, however, that the language in the
version quoted by the appellate court majority and the language in the
applicable version do not differ in any way material to the present litigation.
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ANALYSIS
Scope of Review
Before considering the propriety of the suppression order, we
address an argument defendant raised in his reply brief concerning the
scope of our review. As noted above, underlying the appellate court’s
opinion was its analysis of section 6–303 of the Illinois Vehicle Code
(625 ILCS 5/6–303 (West 2006)). Defendant contends that the parties
never raised a statutory construction issue involving section 6–303
and that the appellate court erred by raising this issue sua sponte. See
People v. Hunt, 234 Ill. 2d 49, 56 (2009) (appellate court’s sua sponte
consideration of issues not considered by the trial court and never
argued by the parties constituted error). Defendant further argues that
because the theory under which a case is tried cannot be changed on
review (Hunt, 234 Ill. 2d at 56), the State cannot raise before this
court an issue improperly considered by the appellate court. For these
reasons, defendant contends that we should not consider the meaning
of section 6–303. We disagree.
In the trial court, the State argued, inter alia, that the vehicle stop
was lawful, despite the existence of the RDP. On appeal, the State
developed this argument, maintaining that the statutory scheme
governing the issuance of RDPs places the burden on the revoked
driver to produce the RDP issued to him, but does not dissipate the
officer’s reasonable articulable suspicion that the license of the driver
has been revoked. The appellate court agreed with the State when it
concluded that “the mere existence of an RDP does not extinguish an
officer’s reasonable and articulable basis to believe the officer has
witnessed a revoked driver traveling on a highway of this state.” 389
Ill. App. 3d at 233. Though the appellate court relied on section
6–303, a section of the Illinois Vehicle Code to which the State did
not expressly refer in its appellate brief, section 6–303 is part and
parcel of the RDP statutory scheme on which the State generally
relied. Moreover, section 6–303 defines the offense at the heart of this
case–driving while license revoked–and any holding in this case must
be consistent with the statute. Thus, the appellate court did not err in
considering this section of the Illinois Vehicle Code and the statutory
construction issue, which the parties have fully briefed, is properly
before us.
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Motion to Suppress
When reviewing a trial court’s ruling on a motion to suppress, we
will accord great deference to the trial court’s factual findings and will
reverse those findings only if they are against the manifest weight of
the evidence; but we will review de novo the court’s ultimate decision
to grant or deny the motion. People v. Richardson, 234 Ill. 2d 233,
251 (2009); People v. Sutherland, 223 Ill. 2d 187, 196-97 (2006).
Defendant here does not challenge Officer Belski’s testimony
regarding the circumstances leading up to the vehicle stop. Where no
dispute exists as to the underlying facts, our task is to determine the
legal effect of those facts, i.e., whether the trial court’s ultimate ruling
that suppression was warranted was correct. Accordingly, our review
proceeds de novo. People v. Bunch, 207 Ill. 2d 7, 13 (2003). To the
extent disposition of this case turns on our review of the appellate
court’s construction of section 6–303 of the Illinois Vehicle Code
(625 ILCS 5/6–303 (West 2006)), review of that issue also proceeds
de novo. People v. Jones, 214 Ill. 2d 187, 193 (2005).
The law is settled that a vehicle stop constitutes a “seizure” of
“persons” within the meaning of the fourth amendment. Brendlin v.
California, 551 U.S. 249, 255, 168 L. Ed. 2d 132, 138-39, 127 S. Ct.
2400, 2406 (2007); Bunch, 207 Ill. 2d at 13. Accordingly, vehicle
stops are subject to the fourth amendment’s reasonableness
requirement (Whren v. United States, 517 U.S. 806, 810, 135 L. Ed.
2d 89, 95, 116 S. Ct. 1769, 1772 (1996)), which we analyze under the
principles set forth in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88
S. Ct. 1868 (1968) (People v. Cosby, 231 Ill. 2d 262, 274 (2008);
People v. Moss, 217 Ill. 2d 511, 526 (2005)). Under Terry, a police
officer may conduct a brief, investigatory stop of a person where the
officer reasonably believes that the person has committed, or is about
to, commit a crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88
S. Ct. at 1880; People v. Gherna, 203 Ill. 2d 165, 177 (2003); People
v. Thomas, 198 Ill. 2d 103, 109 (2001).
The investigatory stop must be justified at its inception. Terry, 392
U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879. “[T]he police
officer must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88
S. Ct. at 1880. The officer’s suspicion must amount to more than an
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inarticulate hunch (Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906, 88 S.
Ct. at 1880; Gherna, 203 Ill. 2d at 177), but need not rise to the level
of suspicion required for probable cause (United States v. Sokolow,
490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989)). In
judging the police officer’s conduct, we apply an objective standard:
“would the facts available to the officer at the moment of the seizure
*** ‘warrant a man of reasonable caution in the belief’ that the action
taken was appropriate?” Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at
906, 88 S. Ct. at 1880; accord Thomas, 198 Ill. 2d at 109.
The Terry standards have been codified in the Code of Criminal
Procedure of 1963 (725 ILCS 5/107–14 (West 2006)), and we apply
the same standards in determining the propriety of investigatory stops
under article I, section 6, of our state constitution (Ill. Const. 1970,
art. I, §6). Thomas, 198 Ill. 2d at 109; see also People v. Caballes,
221 Ill. 2d 282, 313-14 (2006) (reaffirming court’s position that the
search and seizure clause of our state constitution should be
interpreted in limited lockstep with the search and seizure clause of
the federal constitution).
Defendant does not dispute that where a police officer has a
reasonable, articulable basis to believe that a driver is unlicensed, the
officer may lawfully conduct a vehicle stop. Delaware v. Prouse, 440
U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401 (1979).
Defendant argues, however, that where, as here, the officer is aware
that the driver has been issued an RDP, the officer must have a
reasonable, articulable suspicion that the driver is driving outside the
terms of his or her RDP in order to effect a lawful vehicle stop under
Terry. Relying on the Johnson opinion, defendant maintains that
“[w]hile Officer Belski may have guessed that Sunday afternoons are
times when many RDPs prohibit driving, that hunch alone is not
enough to give rise to reasonable suspicion.”
In Johnson, the appellate court held, under facts virtually identical
to the present case, that the police officer lacked a reasonable,
articulable suspicion to stop the defendant’s vehicle on a Sunday
afternoon based on the officer’s suspicion that the RDP did not permit
the defendant to drive on Sundays. Though recognizing that the
officer was likely correct in believing that Sunday afternoons are times
when many RDPs prohibit driving, the Johnson court determined “that
insight was not enough to give rise to reasonable suspicion.” Johnson,
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379 Ill. App. 3d at 712. The appellate court observed that while the
limited purposes for which an RDP may be issued make it “less likely”
that a person with an RDP will be driving within its terms on a Sunday
afternoon, they do not make it “improbable.” Johnson, 379 Ill. App.
3d at 713. Thus, the Johnson court affirmed the trial court’s order
quashing the defendant’s arrest and suppressing the evidence.
Johnson, 379 Ill. App. 3d at 716.
The State responds that Johnson was wrongly decided. Echoing
the view of the appellate majority here, the State maintains that if,
under section 6–303 of the Illinois Vehicle Code (625 ILCS 5/6–303
(West 2006)), the State is not required to prove that a defendant was
driving outside the terms of his or her RDP in order to prove the
offense of driving while license revoked, a fortiori, the officer need
not suspect that the person was driving outside the terms of his or her
RDP in order to effect a lawful vehicle stop where the officer has a
reasonable articulable suspicion that the driver’s license has been
revoked. We agree with the State and overrule Johnson.
Section 6–303 of the Illinois Vehicle Code defines the offense of
driving while license revoked:
“(a) Any person who drives or is in actual physical control
of a motor vehicle on any highway of this State at a time when
such person’s driver’s license, permit or privilege to do so or
the privilege to obtain a driver’s license or permit is revoked
or suspended as provided by this Code or the law of another
state, except as may be specifically allowed by a judicial
driving permit, family financial responsibility driving permit,
probationary license to drive, or a restricted driving permit
issued pursuant to this Code or under the law of another state,
shall be guilty of a Class A misdemeanor.” 625 ILCS 5/6–303
(West 2006).2
In People v. Turner, 64 Ill. 2d 183, 185 (1976), this court held
that under section 6–303, the elements of the offense are “(1) the act
2
Although driving while license revoked is generally a Class A
misdemeanor, the presence of other circumstances, including prior violations
(as is the case here), could result in a felony conviction. See 625 ILCS
5/6–303(d), (d–2), (d–3), (d–4), (d–5) (West 2006).
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of driving a motor vehicle on the highways of this State, and (2) the
fact of the revocation of the driver’s license or privilege.” Though
Turner involved a much earlier version of section 6–303, that version,
like the one applicable here, contained an RDP exception. See Ill. Rev.
Stat. 1973, ch. 95½ , par. 6–303 (“[a]ny person who drives a motor
vehicle on any highway of this State at a time when his drivers license
*** is revoked ***, except as may be allowed by a restricted driving
permit ***, shall be guilty of a Class A misdemeanor”). Turner did
not, however, expressly determine whether the RDP exception
constitutes an additional element of the offense of driving while
license revoked, or is a matter of defense. The rule applicable to such
determinations is well established:
“[I]t is the rule in this State that where an act is made criminal,
with exceptions embraced in the enacting clause creating the
offense, so as to be descriptive of it, the People must allege
and prove that the defendant is not within the exceptions so as
to show that the precise crime has been committed. In other
words, where the exception is descriptive of the offense it
must be negatived in order to charge the defendant with the
offense. On the other hand, if the exception, instead of being
a part of the description of the offense, merely withdraws
certain acts or certain persons from the operation of the
statute it need not be negatived, and its position in the act,
whether in the same section or another part of the act, is of no
consequence. (People v. Saltis, 328 Ill. 494; People v.
Callicott, 322 id. 390; People v. Talbot, 322 id. 416; People
v. Butler, 268 id. 635; Sokel v. People, 212 id. 238.)
Exceptions are generally mere matters of defense. (Sokel v.
People, supra; Beasley v. People, 89 Ill. 571; Lequat v.
People, 11 id. 330.)” People ex rel. Courtney v. Prystalski,
358 Ill. 198, 203-04 (1934).
Accord People v. Green, 362 Ill. 171, 175-76 (1935); People v.
Handzik, 410 Ill. 295, 306 (1951); People v. Laubscher, 183 Ill. 2d
330, 335 (1998).
Applying this rule, our appellate court in People v. Ellis, 71 Ill.
App. 3d 719, 720-21 (1979), held that the exception in section 6–303
“merely withdraws persons with restricted driving permits from the
operation of the statute and in no sense is descriptive of the offense.”
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In 2001, the appellate court revisited Ellis, and again held that the
exceptions in section 6–303, including the RDP exception, are not
part of the substantive offense of driving while license revoked, and
rejected the defendant’s argument that the State must prove that the
defendant did not have an RDP issued by another state. People v.
Rodgers, 322 Ill. App. 3d 199, 201-03 (2001). The Rodgers court
reasoned:
“[I]f a defendant merely drives on a public highway while
his license is revoked, he commits what is generally a criminal
act. That is, in the typical case, the commission of the crime
does not depend on the inapplicability of the exceptions. Thus,
the exceptions do not bear on the elements of the offense;
instead, they state only that particular defendants (those with,
e.g., restricted driving permits) are protected from liability.
Because the exceptions merely withdraw certain persons from
the scope of the statute, the State has no burden to disprove
them.” (Emphasis in original.) Rodgers, 322 Ill. App. 3d at
203.
We agree with Ellis and Rodgers that the RDP exception in
section 6–303 is not an element of the offense of driving while license
revoked. Thus, we reaffirm our holding in Turner that the elements of
the offense are “(1) the act of driving a motor vehicle on the highways
of this State, and (2) the fact of the revocation of the driver’s license
or privilege.” Turner, 64 Ill. 2d at 185.
Defendant conceded at oral argument that the RDP exception is
not an element of the offense, but contends that the elements of the
offense are only relevant at trial and do not bear on whether the
vehicle stop was lawful under Terry principles. We disagree. If, under
Terry, we must consider whether, based on the facts available to him,
Officer Belski had a reasonable, articulable suspicion that defendant
committed or was about to commit a crime, then the conduct that
constitutes the crime is relevant. Accordingly, to effect a lawful Terry
stop of defendant on suspicion of driving while license revoked,
Officer Belski was required to have a reasonable articulable suspicion
that defendant was “driving a motor vehicle on the highways of this
State” and that defendant’s license was revoked. Turner, 64 Ill. 2d at
185. Officer Belski was not required to have a reasonable articulable
suspicion that defendant was not in compliance with the terms of his
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RDP, as that is not an element of the offense. We do not imply,
however, that a police officer cannot effect a lawful Terry stop
without first identifying a particular crime or considering whether the
circumstances he or she observed would satisfy each element of a
particular offense. Terry does not require that level of specificity or
suspicion.
An officer, of course, may not ignore facts which would dispel
suspicion of criminal wrongdoing. To illustrate, “if the officer knows
that the owner of a vehicle has a revoked license and further, that the
owner is a 22-year-old male, and the officer observes that the person
driving the vehicle is a 50- or 60-year-old woman, any reasonable
suspicion of criminal activity evaporates.” Minnesota v. Pike, 551
N.W.2d 919, 922 (Minn. 1996). Accord Armfield v. State, 918
N.E.2d 316, 321 n.7 (Ind. 2009); People v. Jones, 260 Mich. App.
424, 430 n.4, 678 N.W.2d 627, 631 n.4 (2004). To further illustrate,
if the officer is aware that the terms of the driver’s RDP allow him to
drive at the time and place in question, then no basis exists for
executing a Terry stop, in the absence of any traffic violation or
suspicion of other criminal wrongdoing.
Defendant directs our attention to section 6–205 of the Illinois
Vehicle Code, which sets forth the purposes for which an RDP may
be issued. Section 6–205 provides:
“[T]he court may recommend and the Secretary of State
in his discretion *** may *** issue *** a restricted driving
permit granting the privilege of driving a motor vehicle
between the petitioner’s residence and petitioner’s place of
employment or within the scope of the petitioner’s
employment related duties, or to allow transportation for the
petitioner or a household member of the petitioner’s family for
the receipt of necessary medical care or, if the professional
evaluation indicates, provide transportation for the petitioner
for alcohol remedial or rehabilitation activity, or for the
petitioner to attend classes, as a student, in an accredited
educational institution ***.” 625 ILCS 5/6–205(c) (West
2006).
Defendant maintains that in light of these established purposes for the
issuance of an RDP, unless Officer Belski was aware of the terms of
the RDP at the time of the vehicle stop, the officer “could not know
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whether or not the defendant was committing a crime.” Terry,
however, does not require that the officer “know” that the driver is
committing a crime. As the Supreme Court explained:
“The Fourth Amendment requires ‘some minimal level of
objective justification’ for making the stop. [Citation.] That
level of suspicion is considerably less than proof of
wrongdoing by a preponderance of the evidence. We have
held that probable cause means ‘a fair probability that
contraband or evidence of a crime will be found,’ [citation]
and the level of suspicion required for a Terry stop is
obviously less demanding than that for probable cause
[citation].” United States v. Sokolow, 490 U.S. 1, 7, 104 L.
Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989).
See also Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301,
309, 110 S. Ct. 2412, 2416 (1990) (recognizing that reasonable
suspicion is a less demanding standard than probable cause with
respect to the quantity, content and reliability of the underlying
information).
Moreover, the mere possibility that the RDP issued to defendant
allowed him to drive at the time and place that Officer Belski observed
him does not negate the officer’s reasonable suspicion that defendant
was driving on a revoked license. Police officers are “ ‘not required to
rule out all possibility of innocent behavior’ ” before initiating a Terry
stop. 4 W. LaFave, Search & Seizure §9.5(b), at 481 (4th ed. 2004),
quoting United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975).
As our own appellate court has aptly observed: “The purpose of a
Terry stop is to allow a police officer to investigate the circumstances
that provoke suspicion and either confirm or dispel his suspicions.”
People v. Ross, 317 Ill. App. 3d 26, 31 (2000). See also Florida v.
Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319,
1325-26 (1983) (plurality op.) (“investigative methods employed
should be the least intrusive means reasonably available to verify or
dispel the officer’s suspicion in a short period of time”); accord United
States v. Sharpe, 470 U.S. 675, 686, 84 L. Ed. 2d 605, 615-16, 105
S. Ct. 1568, 1575 (1985).
Here, Officer Belski was aware that the license of the registered
owner of the vehicle had been revoked and the person driving the
vehicle strongly resembled the photograph of the owner. Viewed
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objectively, the facts available to Officer Belski were sufficient to
create the reasonable, articulable suspicion necessary to effect a Terry
stop. Although Officer Belski was also aware that defendant had been
issued an RDP, that fact alone would not cause reasonable suspicion
to evaporate, and Officer Belski could conduct a brief investigatory
stop to verify or dispel his suspicion that defendant was driving on a
revoked license. Accordingly, we affirm the judgment of the appellate
court reversing the trial court’s order granting defendant’s motion to
quash arrest and suppress evidence and remanding for further
proceedings.
Affirmed.
JUSTICE BURKE, dissenting:
I would find that the totality of the circumstances in this case did
not amount to reasonable suspicion sufficient to support the stop. In
contrast to the majority, I would find that the officer’s knowledge of
the defendant’s restricted driving permit (RDP) is a relevant fact
which must be taken into account in analyzing the reasonableness of
the stop under Terry. Therefore, I respectfully dissent from the
majority opinion.
The facts in this case are not in dispute. Officer Thomas Belski
was on routine patrol in an unmarked squad car in a residential area
of LaSalle, Illinois. He ran a registration check on defendant’s license
plate on his mobile computer. The computer showed that the
registered owner had a revoked driver’s license and an RDP but did
not show the details of the RDP. After confirming that the photograph
matched the driver, Officer Belski stopped the defendant and arrested
him for driving while license revoked. As he testified later, prior to the
stop, Officer Belski had a hunch that the defendant was driving
outside the scope of his RDP based on the fact that it was a Sunday
at 7:13 p.m., the defendant was wearing a tank top, baseball cap, and
sunglasses, and, in Officer Belski’s experience, RDP’s are issued only
for “work or hardships.”
The majority holds that the facts were sufficient to support a Terry
stop because the facts known to the officer–that the registered owner
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had a revoked driver’s license and that the person driving the vehicle
strongly resembled the photograph of the owner–satisfied the elements
of the offense of driving while license revoked. Slip op. at 7-8, 11-12.
With regard to the RDP, the majority holds that “Officer Belski was
not required to have a reasonable articulable suspicion that defendant
was not in compliance with the terms of his RDP, as that is not an
element of the offense.” Slip op. at 9-10. This is so, explains the
majority, because an RDP is an exception to the offense which the
State does not have to prove at trial. Slip op. at 9.
I disagree with the majority’s analysis because it abandons and
does not even mention the “totality of the circumstances” test which
this court has consistently applied to review the propriety of Terry
stops. The majority’s unwarranted application of a new “elements of
the offense” test essentially permits spot-checks of every driver who
has been issued an RDP, without regard to any surrounding
circumstances.
The determination of whether a seizure or stop is reasonable
involves a dual inquiry: “whether the officer’s action was justified at
its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” Terry
v. Ohio, 392 U.S. 1, 19-20, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868,
1879 (1968). Under the first prong, “the police can stop and briefly
detain a person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable cause.”
United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S.
Ct. 1581, 1585 (1989), citing Terry, 392 U.S. at 30, 20 L. Ed. 2d at
911, 88 S. Ct. at 1884-85. “Courts have used a variety of terms to
capture the elusive concept of what cause is sufficient to authorize
police to stop a person. *** But the essence of all that has been
written is that the totality of the circumstances–the whole
picture–must be taken into account. Based upon that whole picture
the detaining officers must have a particularized and objective basis
for suspecting the particular person stopped of criminal activity.”
United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 629,
101 S. Ct. 690, 695 (1981). See also United States v. Lawshea, 461
F.3d 857, 859 (7th Cir. 2006) (in evaluating the reasonableness of a
Terry stop, we examine “the totality of the circumstances known to
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the officer at the time of the stop”); United States v. Jackson, 300
F.3d 740, 745-46 (7th Cir. 2002) (the “totality of the circumstances”
include the experience of the officer, the behavior and characteristics
of a suspect, whether the location of the stop is a “high crime” area,
and an officer’s prior dealings with the individual or knowledge of a
criminal record).
Until today’s majority decision, this court has consistently applied
the “totality of the circumstances” test to fourth amendment
challenges of stops and seizures. See People v. Moss, 217 Ill. 2d 511,
529-30 (2005) (we judge the reasonableness of the search by its
particular facts and circumstances, using the “totality of the
circumstances” analysis); People v. Lee, 214 Ill. 2d 476, 488 (2005)
(“the totality of the circumstances, including the citizen complaint,
were certainly enough to heighten the officers’ suspicion and warrant
further investigation”); People v. Thomas, 198 Ill. 2d 103, 110 (2001)
(“[v]iewed as a whole, the situation confronting the police officer
must be so far from the ordinary that any competent officer would be
expected to act quickly”); People v. McGowan, 69 Ill. 2d 73, 78
(1977) (applying the same test).
In looking at the totality of the circumstances, we must include in
our analysis all of the facts known to the officer prior to the stop. It
is clear from the Supreme Court’s discussion of the facts in Terry that
all surrounding circumstances are relevant, including facts which
dispel an officer’s reasonable suspicion that the defendant is engaged
in criminal activity. In Terry, the police officer observed the defendant
repeatedly pacing in front of a store, peering into the store window,
and conferring with two other men. In the officer’s experience, the
defendant’s actions were consistent with “casing a job.” The Court
held that the subsequent stop and search of the defendant were
reasonable under the fourth amendment:
“We think on the facts and circumstances Officer McFadden
detailed before the trial judge a reasonably prudent man would
have been warranted in believing petitioner was armed and
thus presented a threat to the officer’s safety while he was
investigating his suspicious behavior. The actions of Terry and
Chilton were consistent with McFadden’s hypothesis that
these men were contemplating a daylight robbery–which, it is
reasonable to assume, would be likely to involve the use of
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weapons–and nothing in their conduct from the time he first
noticed them until the time he confronted them and identified
himself as a police officer gave him sufficient reason to
negate that hypothesis. Although the trio had departed the
original scene, there was nothing to indicate abandonment of
an intent to commit a robbery at some point. Thus, when
Officer McFadden approached the three men gathered before
the display window at Zucker’s store he had observed enough
to make it quite reasonable to fear that they were armed; and
nothing in their response to his hailing them, identifying
himself as a police officer, and asking their names served to
dispel that reasonable belief.” (Emphases added.) Terry, 392
U.S. at 28, 20 L. Ed. 2d at 910, 88 S. Ct. at 1883.
In the case at bar, the majority acknowledges that “[a]n officer, of
course, may not ignore facts which would dispel suspicion of criminal
wrongdoing.” Slip op. at 10. The majority offers the following
illustration of this principle: “if the officer is aware that the terms of
the driver’s RDP allow him to drive at the time and place in question,
then no basis exists for executing a Terry stop, in the absence of any
traffic violation or suspicion of other criminal wrongdoing.” Slip op.
at 10. The majority then states that “the mere possibility that the RDP
issued to defendant allowed him to drive at the time and place that
Officer Belski observed him does not negate the officer’s reasonable
suspicion that defendant was driving on a revoked license,” and that
“[a]lthough Officer Belski was also aware that defendant had been
issued an RDP, that fact alone would not cause reasonable suspicion
to evaporate.” (Emphases added.) Slip op. at 11, 12. The majority
fails to recognize, however, that the officer’s knowledge of the
defendant’s RDP is a fact which dispels suspicion of criminal
wrongdoing. Thus, it is relevant to whether the officer had reasonable
suspicion that the driver was engaged in criminal activity.
“Under Terry, a police officer may briefly stop a person for
temporary questioning if the officer has knowledge of sufficient
articulable facts at the time of the encounter to create a reasonable
suspicion that the person in question has committed or is about to
commit a crime.” People v. Lee, 214 Ill. 2d 476, 487 (2005). If the
defendant was driving within the terms of his RDP, he was not
committing a crime. Thus, the officer’s knowledge of the defendant’s
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RDP, without knowing the terms of the permit, reduced the likelihood
that defendant was committing a crime. I agree with the dissenting
justice in the appellate court that “[d]riving on a revoked license is not
a crime if the individual is driving within the scope of his/her RDP.
Thus, in order to effectuate a valid traffic stop, I believe an officer
must have a reasonable articulable suspicion that the driver is
operating the vehicle outside the terms of his/her RDP.” (Emphasis
added.) 389 Ill. App. 3d at 237 (McDade, J., dissenting).
The majority considers only two facts in concluding that the facts
were sufficient to create the reasonable, articulable suspicion
necessary to effect a Terry stop: (1) that the license of the registered
owner of the vehicle had been revoked; and (2) that the person driving
the vehicle strongly resembled the photograph of the owner. Under
the “totality of the circumstances” test, however, all of the
surrounding facts must be included in the analysis. In addition to the
two facts above, Officer Belski knew that: (3) the registered owner of
the vehicle had an RDP; (4) the driver was driving the vehicle on a
Sunday at 7:13 p.m.; and (5) the driver was wearing sunglasses, a
baseball cap, and a tank top.
Taking into account the additional facts not considered by the
majority, I would hold that the facts do not support a finding of
reasonable suspicion in the case at bar. The facts known to the officer
in this case did not amount to more than a mere “hunch” that the
defendant was committing a crime. The fourth amendment requires
that the police officer articulate something more than an “inchoate and
unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 20 L.
Ed. 2d at 909, 88 S. Ct. at 1883. “[I]n justifying the particular
intrusion the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21,
20 L. Ed. 2d at 906, 88 S. Ct. at 1880. “The process does not deal
with hard certainties, but with probabilities. Long before the law of
probabilities was articulated as such, practical people formulated
certain common sense conclusions about human behavior; jurors as
factfinders are permitted to do the same–and so are law enforcement
officers.” Cortez, 449 U.S. at 418, 66 L. Ed. 2d at 629, 101 S. Ct. at
695.
I agree with the appellate court in Johnson, which held under
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similar facts that the limited allowable purposes for an RDP “make it
less likely that a person with an RDP will be driving within the scope
of an RDP on a Sunday afternoon, but they do not make it
improbable.” People v. Johnson, 379 Ill. App. 3d 710, 713 (2008).
The facts in the present case do not support the particularized
suspicion required for a stop. See Johnson, 379 Ill. App. 3d at 713-
14. It is entirely possible that the defendant was driving to or from
work on a Sunday at the time his vehicle was stopped. At the
suppression hearing, Officer Belski admitted that he had no way of
knowing before he stopped defendant whether defendant was working
or whether he had other clothes in his car. While I would not require
that the officer know the exact terms of the RDP before stopping a
driver, I believe there must be more specific facts than are present in
this case to support the stop.
Accordingly, I would reverse the judgment of the appellate court
and affirm the trial court’s order granting defendant’s motion to quash
arrest and suppress evidence.
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