No. 2-12-1346 Opinion filed October 3, 2013 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellant, ) ) v. ) No. 12-DT-1094 ) PAUL D. ANDERSON, ) Honorable ) Liam C. Brennan, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Schostok and Spence concurred in the judgment and opinion.

OPINION

¶1 Defendant, Paul D. Anderson, was charged with driving under the influence of alcohol (DUI)

(625 ILCS 5/11-501(a)(2) (West 2012)). He moved to quash his arrest and suppress evidence,

contending that he had been arrested without probable cause. The trial court granted the motion.

The State appeals, arguing that (1) collateral estoppel requires reversal, because the sole issue in this

case, probable cause to arrest, was decided adversely to defendant when this court reversed the trial

court’s rescission of the summary suspension of defendant’s driving privileges (People v. Anderson,

); and (2) defendant’s arrest was supported by probable cause. We agree

with the State’s second contention only, and we reverse and remand.

¶2 We first summarize the proceedings in the summary-suspension proceeding. On March 25,

2012, Officer Peter Briddell arrested defendant for DUI. As defendant refused to perform field

sobriety tests or take a breath-alcohol test, Briddell served him with notice of the summary

suspension (see 625 ILCS 5/11-501.1 (West 2012)). On May 4, 2012, defendant petitioned to

rescind the summary suspension, contending that Briddell had lacked probable cause to arrest him.

On May 8, 2012, the trial court held a hearing on the petition. Although our order in Anderson

summarized the hearing, we do so again for clarity of discussion.

¶3 Briddell was the sole witness at the hearing. On direct examination, he testified as follows.

On March 25, 2012, at 11:15 p.m., he saw defendant at the intersection of Montgomery and Eola

Roads. Defendant was standing outside his “wrecked car.” Briddell asked defendant what had

happened; defendant responded that his car had stopped moving and that he did not know why. At

11:30 p.m., Briddell arrested defendant for DUI. Briddell had not seen defendant drive; before the

arrest, defendant did not perform any field sobriety tests or take a preliminary breath test.

¶4 Briddell testified as follows on cross-examination. Upon arriving, he spoke to an eyewitness,

who told him that defendant, while driving south on Montgomery, made a wide left turn, struck the

curb at Montgomery and Eola, then drove a little farther south on Eola. Briddell saw that

defendant’s car was disabled, as the suspension had been broken. As Briddell spoke to defendant,

he saw that defendant was swaying. In addition to asking defendant what had happened, Briddell

asked if he had had anything to drink; defendant responded, “too much.” Briddell asked him how

much but did not remember defendant’s answer. Briddell asked defendant to perform field sobriety

tests; “[defendant] asked, why, I’m drunk.” Briddell repeated the request; defendant responded, “you

know I’m drunk.”

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¶5 The trial court denied the State’s motion for a directed finding. The State recalled Briddell.

He testified that, as he spoke to defendant, he noticed that defendant’s pants were “wet up front,”

which was “a little abnormal.” Also, defendant’s eyes looked glassy.

¶6 The trial court found that defendant had been arrested without probable cause. The judge

acknowledged the accident, which was “suggestive” of impairment; defendant’s statement that he

would not perform field sobriety tests, because he was drunk; and defendant’s glassy eyes and

“swaying” of unspecified severity. However, there had been nothing about slurred speech,

belligerence, defendant’s gait, or any odor emanating from him. The cause of defendant’s “wet

pants” was unknown. The trial court rescinded the summary suspension, and the State appealed.

¶7 While that appeal was pending, on October 22, 2012, defendant moved to quash his arrest

and suppress evidence, again contending that Briddell had arrested him without probable cause. On

November 6, 2012, with the summary-suspension appeal still pending, the trial court held a hearing

on defendant’s motion. The State declined to stipulate to the evidence from the summary-suspension

hearing. Again, Briddell was the sole witness. On direct examination, he testified as follows. On

March 25, 2012, at about 11:15 p.m., he responded to a report of a vehicle crash at Montgomery and

Eola Roads. At the scene, he saw defendant standing outside his car. The car’s right front

suspension and wheel were broken. After about 15 minutes, Briddell arrested defendant. Defendant

had not taken any field sobriety tests or a preliminary breath test. Briddell had never seen defendant

driving the car. Briddell talked to defendant before arresting him. About the accident, defendant

said only that “he couldn’t figure out why his car stopped moving.”

¶8 Briddell testified on cross-examination that, on arriving, he spoke to an eyewitness who told

him that defendant’s car had struck the curb at the intersection of Montgomery and Eola and had

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continued south, then stopped. Briddell asked defendant to perform field sobriety tests; defendant

responded, “Why, I’m drunk.” Briddell asked again; defendant said, “why, you know I’m drunk.”

Briddell then asked defendant how much he had had to drink that evening; defendant said that he had

had too much. Defendant’s pants were wet in the crotch area.

¶9 The trial court denied the State’s motion for a directed finding. The State recalled Briddell.

He testified that, while they spoke, defendant was “swaying.”

¶ 10 The trial court granted defendant’s motion. The judge explained:

“[T]here’s no suggestion of slurred speech, odor of alcohol; I haven’t heard anything with

respect to bloodshot and glassy eyes. There’s a suggestion of a sway when the defendant is

out of the car. I don’t know what that means. No unsteady gait testimony. There isn’t

anything to warrant that arrest.”1

¶ 11 On December 3, 2012, the State filed a notice of appeal from the grant of defendant’s motion.

In the meantime, on November 14, 2012, this court issued its order in the summary-suspension

appeal. We reversed the trial court, holding that Briddell had had probable cause to arrest defendant

for DUI. We explained:

“[I]n addition to defendant’s glassy eyes and swaying, the details of his accident were known

and he admitted not just to consuming alcohol, but that he was intoxicated and thus was

guilty of the offense. Officer Briddell was told by [the eyewitness] that defendant turned

1 Defendant had also been charged with other traffic offenses (not listed in the common-law

record). The court held, based on evidence distinct from that applying to the DUI charge, that there

had been no probable cause to arrest defendant for those offenses, so that the order applied to those

charges as well. On appeal, the State does not challenge this aspect of the order.

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widely, striking the curb, and continued on until his car stopped. Defendant told Officer

Briddell that he did not know why his car stopped moving. Officer Briddell further observed

that defendant’s eyes were glassy, his pants were wet in the front, and he was swaying.

When asked if he had had anything to drink, defendant stated that he had had ‘too much’ to

drink. Defendant further refused to take the field sobriety tests on two occasions, indicating

that they were unnecessary because he admitted to being drunk.” Anderson,

, ¶ 12.

We distinguished People v. Boomer,

(2001), in which we held that there

had been no probable cause to arrest the defendant for DUI. In Boomer, the circumstances of the

defendant’s motorcycle accident had been unknown; he suffered severe injuries that had prevented

him from communicating other than by blinking; he admitted that he had been drinking alcohol, but

the quantity was unknown; he emitted an odor of alcohol; and his injuries prevented him from

displaying any indicia of intoxication or taking any tests. Anderson,

,

¶ 11. We saw the evidence in Anderson as “in line” with that in People v. Cortez,

(2005), which held that there had been probable cause to believe that the defendant had

committed DUI, in that he had rolled his car over; he had bloodshot eyes, slurred speech, and an odor

of alcohol; he swayed as he spoke; and he admitted to having consumed beer before driving.

Anderson,

, ¶ 12.

¶ 12 On appeal, the State contends first that, because our decision in Anderson held that Briddell

had had probable cause to arrest defendant for DUI, collateral estoppel requires that, in the present

appeal, the same holding must apply. Defendant responds that People v. Moore,

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(1990), forbids giving preclusive effect in a criminal case to the judgment in a summary-suspension

proceeding. The State replies that Moore prohibits only using collateral estoppel against the State.

¶ 13 At the trial level, the State did not invoke collateral estoppel. Normally, collateral estoppel

is an affirmative defense that is forfeited if not pleaded. Allianz Insurance Co. v. Guidant Corp.,

(2008). The State notes, however, that here the defense was unavailable

at the trial court level. This is because one element of collateral estoppel is a final judgment on the

merits, which does not exist until the potential for appellate review has been exhausted. Ballweg v.

City of Springfield,

(1986). Thus, Anderson became final 35 days after we

issued our order, when defendant could no longer appeal to the supreme court. See Ill. S. Ct. R.

315(b) (eff. Aug. 15, 2006). That was after the hearing and the judgment in this case.

¶ 14 Because the affirmative defense of collateral estoppel was unavailable at the trial court level,

the State may raise it here. See Allianz,

(collateral estoppel available

although not pleaded, as allegedly preclusive orders were entered long after defendant could file

answer); Dana Corp. v. NOK, Inc.,

(Fed. Cir. 1989) (collateral estoppel could

be raised for first time on appeal, as opinions having preclusive effect were not entered until after

appeal taken). Also, defendant does not contend that the issue is forfeited. Thus, we examine the

State’s collateral estoppel argument on the merits.

¶ 15 Collateral estoppel bars the litigation of an issue that has been fairly and completely resolved

in a prior proceeding. Moore,

. The prerequisites to applying collateral estoppel

are (1) an identity of issues; (2) a final judgment on the merits in the prior proceeding; and (3) that

the party against whom estoppel is asserted was a party, or is in privity with a party, in the prior

proceeding. Gumma v. White,

(2005); Ballweg,

. However, even

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if the foregoing criteria are met, collateral estoppel should not be applied unless it is clear that doing

so would not be unfair to the party to be estopped. American Family Mutual Insurance Co. v.

Savickas,

(2000).

¶ 16 Moore presented the “flip side” of the present case: the supreme court refused to apply

collateral estoppel in favor of the motorist. The motorist was charged with DUI, and his driving

privileges were summarily suspended. He first prevailed on a petition to rescind the summary

suspension. The judgment was based on the finding that the arresting officer had lacked probable

cause to stop the motorist. Moore,

. The motorist then moved in the criminal case

to suppress evidence. The trial court granted the motion, holding that the issue of probable cause

had been decided in the summary-suspension proceeding, so that the State could not relitigate it.

The appellate court affirmed. People v. Moore,

(1989).

¶ 17 The supreme court reversed. The court acknowledged that the three formal prerequisites for

the application of collateral estoppel appeared to have been met. Moore,

.

Nonetheless, the court found compelling policy reasons against applying collateral estoppel. The

court based its decision on the differences between the two proceedings, in light of the policy behind

the former. It explained:

“While *** the distinction between the functions of a statutory summary suspension

hearing in a DUI case and a preliminary hearing in a criminal case can often be slight, and

perhaps even insignificant [citation], the differences in procedures involved are, nevertheless,

very real. The legislature has specifically directed that the license suspension proceedings

are to be swift and of limited scope. *** [I]f these proceedings were given preclusive effect,

it would render meaningless this legislative purpose. That is, the practical effect would be

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that the State or municipality could not rely on the sworn police report at these proceedings

but, rather, would be required to have the arresting officer, and other witnesses, testify. The

goal of conducting swift hearings for the sole purpose of determining whether a court has

sufficient reason to rescind [the] summary suspension of a motorist’s driving privileges will

be thwarted. Given this probable result, and the fact that no injustice will be done to either

party by declining to give preclusive effect to these license suspension hearings, we decline

to do so.” Id. at 169.

The court rejected a case-by-case approach to deciding whether, in a summary-suspension

proceeding, the State has had a full and fair opportunity to litigate an issue. That approach would

frustrate the legislative policy of providing a swift and limited mechanism for dealing with summary

suspensions; even the possibility of giving preclusive effect to a summary-suspension judgment

would cause the State “to treat the suspension hearing as an integral part of the criminal trial,” so that

police officers, event witnesses, and even experts would be required to testify. Id. at 170.

¶ 18 The State contends that Moore does not apply, because (1) it bars only a motorist’s use of the

judgment in a summary-suspension hearing against the State in a subsequent criminal DUI

proceeding; and (2) its holding is based on policy considerations that do not militate against the

State’s use of the judgment in a summary-suspension hearing against the motorist in a subsequent

criminal DUI proceeding. We disagree with the State.

¶ 19 Hurlbert v. Charles,

(2010), disposes of this case.2 There, the plaintiff was

charged with DUI, and his license was summarily suspended. He petitioned to rescind his summary

2 Remarkably, neither party cites Hurlbert, even though it was decided more than two years

before the State filed its appellant’s brief.

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suspension, contending that Charles, an Urbana police officer, had arrested him without probable

cause. The trial court denied the petition, finding probable cause. However, the trial court

dismissed the DUI charge with prejudice. The plaintiff then sued Charles and the City of Urbana

for malicious prosecution (id. at 252). They moved for summary judgment, arguing that the trial

court’s probable cause finding estopped the plaintiff from contending that the arrest was without

probable cause, an essential element of his cause of action (see id. at 256).

¶ 20 The supreme court disagreed with the defendants. It explained that, although Moore had

involved the application of a judgment in a summary-suspension hearing to a subsequent criminal

proceeding, its reasoning applies to subsequent civil suits as well. The court explained, “Moore

rested its decision on the nature of the statutory summary suspension process, and not on the nature

of the subsequent action.” Id. at 258-59. Crucially, the legislative intent to make summary-

suspension proceedings expeditious would be undermined were the State concerned that findings

made in the hearing could have preclusive effect in subsequent proceedings—and, although Moore

involved a subsequent criminal proceeding, its rationale applied equally to civil litigation. Id. at 259-

60. Thus, the defendants in the malicious-prosecution case could not use the finding of probable

cause to preclude the plaintiff from contending that there had been no probable cause.

¶ 21 Hurlbert extended Moore in two respects. First, it held that Moore applies to the preclusive

effect (or lack of it) that a summary-suspension judgment has in a subsequent civil case. Second,

and much more important here, Hurlbert presents the “flip side” of Moore. In Moore, the motorist

argued that a finding of “no probable cause” in a summary-suspension proceeding had preclusive

effect against the State, which had arrested and prosecuted him for DUI, in a later proceeding. In

Hurlbert, the officer and the municipality, who had arrested and prosecuted the motorist for DUI,

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argued that a finding of “probable cause” in a summary-suspension proceeding had preclusive effect

against the motorist in a later proceeding.

¶ 22 Hurlbert’s implications for the present case are obvious. The State argues that, although

Moore bars the motorist from using a summary-suspension judgment in his favor against the State

in a subsequent proceeding, it does not bar the State from using a summary-suspension judgment in

its favor in a subsequent proceeding against the motorist. The State’s approach cannot be squared

with Hurlbert, which made Moore’s rule a two-way street. In effect, Hurlbert and Moore apply the

principle of mutuality: neither party may use a prior judgment as an estoppel against the other party

unless both parties were bound by the prior judgment. See People v. Franklin,

(1995). Together, Moore and Hurlbert establish that a summary-suspension judgment should not

have preclusive effect against either the State or the motorist. They are consistent with Franklin’s

mutuality rule: under Moore the State is not bound, and under Hurlbert the motorist is not bound.

Therefore, we reject the State’s invocation of collateral estoppel.

¶ 23 We turn to the State’s second argument on appeal: that, regardless of anything that occurred

in the summary-suspension proceeding, the trial court erred in holding that Briddell lacked probable

cause to arrest defendant for DUI. For the following reasons, we agree with the State.

¶ 24 Although we are not bound by Anderson, its reasoning is sound, and this case does not differ

in any meaningful way. We note that probable cause to arrest exists when the facts the officer knows

are sufficient to lead a reasonably cautious person to believe that the defendant has committed a

crime. People v. Wear,

(2008). As the facts are not disputed, we review de novo

the trial court’s conclusion that Briddell lacked probable cause to arrest defendant for DUI.

.

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¶ 25 Here, Briddell knew the following before he arrested defendant. Defendant was swaying as

he spoke to Briddell. His pants were wet in the front. He had been in an unexplained one-car

accident: an eyewitness had told Briddell that the car had struck a curb and continued south; Briddell

could see that the car was damaged; and defendant told him that he could not figure out why his car

had stopped moving. Defendant himself told Briddell twice that he was “drunk” and, for that reason,

he refused to take field-sobriety tests. He also declined a breath test. Asked how much he had had

to drink, defendant said, “too much.” These facts were ample for a reasonably cautious person to

believe that defendant had committed DUI. Indeed, defendant admitted both that he was drunk and

that he had just been driving. Even were these admissions insufficient by themselves to establish

probable cause, they were corroborated in numerous substantial respects. The evidence established

probable cause to arrest defendant for DUI.

¶ 26 The order of the circuit court of Du Page County is reversed, and the cause is remanded.

¶ 27 Reversed and remanded.

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