NOTICE

Decision filed 01/26/15. The text of this decision may be NO. 5-13-0147 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Wayne County. ) v. ) No. 12-DT-7 ) KATELYN M. BOZARTH, ) Honorable ) Joe Harrison, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE STEWART delivered the judgment of the court, with opinion. Justice Goldenhersh concurred in the judgment and opinion. Justice Welch dissented, with opinion.

OPINION

¶1 The defendant, Katelyn M. Bozarth, was charged with two counts of driving under

the influence of alcohol. The defendant filed a motion to quash the arrest and suppress

the evidence obtained against her, which the trial court denied after a hearing. At a bench

trial, the defendant stipulated to the State's evidence, while maintaining her objection to

the order denying her motion to quash and suppress evidence. The trial court found the

defendant guilty on one count of driving under the influence of alcohol and ordered the

defendant to one year of court supervision. The defendant filed a timely appeal. We

reverse. 1 ¶2 BACKGROUND

¶3 The following factual recitation is taken from a hearing held on the defendant's

motion to quash arrest and suppress evidence. On January 27, 2012, at approximately

1:22 a.m., Trooper Adam Zimmerman was on routine patrol in a rural area of Wayne

County. The officer testified that he was "looking for violations" when he observed the

defendant's red Pontiac stopped at a four-way stop heading westbound. The officer, who

was in an unmarked squad car at the four-way stop intersection headed eastbound, turned

his squad car around and followed the Pontiac. The officer testified that the only reason

he chose to follow the Pontiac was that it was the only vehicle in the area.

¶4 The officer followed the Pontiac for approximately one-half of a mile when he

observed the vehicle turn north into a private driveway. There was a house

approximately 100 yards north at the end of the private drive. When the officer did not

see taillights going up to the house, he pulled into the private drive. As he was driving up

the drive, he observed a pole barn on his right. The barn was approximately 50 yards

from the public road. The officer observed the Pontiac parked behind the pole barn with

its lights off. Upon seeing the Pontiac behind the barn, the officer pulled his vehicle

behind it, approximately 1½ car's length away.

¶5 When the officer exited his unmarked car to make contact with the driver, he had

his flashlight in hand and his gun drawn. The defendant rolled the window down. The

officer asked the defendant if the property she had pulled onto belonged to her. The

defendant responded that it was not her property nor did she know whose property it was.

During this conversation, the officer detected a strong odor of alcoholic beverage coming 2 from the defendant's breath. The officer returned to his patrol vehicle and activated the

emergency lights. He then returned to the Pontiac and asked the defendant to exit the

vehicle to perform field sobriety tests. Upon completing the field sobriety tests, the

defendant was placed under arrest for driving under the influence of alcohol.

¶6 The officer testified that when he initially turned his vehicle around to follow the

Pontiac, he "had no real suspicion at that time." Rather, he followed the Pontiac to see if

anything "might happen." When asked what suspicion the officer had when he saw the

defendant turn onto the private lane, the officer stated:

"There's–I just–really just awkward. It was an awkward way to just pull off

in a driveway and shut off your lights. It depends on–it entered my mind, is were

they stealing something, maybe doing something involving anhydrous, making

methamphetamine."

¶7 When asked what suspicion the officer had when he saw the defendant parked

behind the barn, the officer stated:

"Um, there was not a residence in the immediate area of the barn. An

individual pulled in behind a barn, and immediately shuts off the lights. Not

knowing if they had seen me–I drive an unmarked squad car, so I didn't know if

something was going on, or if they were trying to hide or not.

***

I didn't know if there was any foul play going on, if they were trying to hide

from me or not whenever they pulled up to the barn."

¶8 Officer Zimmerman also testified that at the time he pulled his unmarked car 3 behind the Pontiac, he was not aware of any infraction or violation of the law that the

defendant had committed. Although the officer testified that the defendant was free to

leave when he initially approached her, he acknowledged that had she left, he probably

would have followed her and activated his lights.

¶9 At the end of Officer Zimmerman's testimony, defense counsel made a motion to

continue the hearing until a later date. Although the trial court granted the motion, the

record reveals that the hearing was resumed later the same day. The record on appeal

does not include a transcript of the hearing after it was resumed, but a docket entry

reveals that the defendant's motion to quash arrest and suppress evidence was denied.

There is no mention in the docket entry, nor anywhere else in the record, that additional

evidence was taken when the hearing was resumed; therefore, we presume that the trial

court made its ruling on the evidence presented at the conclusion of the officer's

testimony.

¶ 10 The stipulated bench trial was conducted on March 26, 2013, wherein the trial

court found the defendant guilty on one count of driving while under the influence of

alcohol and placed the defendant on one year of court supervision. This appeal ensued.

¶ 11 ANALYSIS

¶ 12 Before addressing the merits raised by the defendant, we note that the State asserts

that this court lacks jurisdiction to consider the defendant's appeal since an order of court

supervision may not result in a final judgment. Although the Illinois Constitution

prohibits appeals from nonfinal judgments, it grants our state supreme court the authority

to "provide by rule for appeals to the Appellate Court from other than final judgments." 4 Ill. Const. 1970, art. VI, § 6. "Our supreme court authorizes appeals from court

supervision orders in Illinois Supreme Court Rule 604(b) (eff. July 1, 2006)." People v.

Love,

, ¶ 20. "Rule 604(b) provides a defendant 'may appeal

from the judgment and may seek review of the conditions of supervision, or of the

finding of guilt or the conditions of the sentence, or both.' " Id. (quoting Ill. S. Ct. R.

604(b) (eff. July 1, 2006)). "Clearly, Rule 604(b) provides a defendant the right to appeal

both the finding of guilty and the conditions of supervision." Id. at ¶ 21. Accordingly,

we conclude this court has jurisdiction and turn to the issues raised by the defendant on

appeal.

¶ 13 The defendant argues, inter alia, that the trial court erred in denying her motion to

quash arrest and suppress the evidence obtained against her where the officer did not

have a suspicion based on reasonable, articulable facts that she had committed, or was

about to commit, a crime when he seized her. "Although a court's ruling on a motion to

quash arrest and suppress evidence generally is subject to reversal only if the ruling is

manifestly erroneous, where the trial court has applied the law to uncontroverted facts,

the case presents a question of law that is reviewed under a de novo standard." People v.

Carrera,

(2001), aff'd,

(2002).

¶ 14 The defendant contends that the officer seized her for fourth amendment purposes

when he pulled in behind her vehicle on the private driveway and exited his squad car

with his gun drawn, while the State maintains that the encounter began as a consensual

one until the officer smelled alcohol on the defendant's breath.

¶ 15 "It is well settled that not every encounter between the police and a private citizen 5 results in a seizure." People v. Luedemann,

(2006). "Courts have

divided police-citizen encounters into three tiers: (1) arrests, which must be supported by

probable cause; (2) brief investigative detentions, or 'Terry stops,' which must be

supported by a reasonable, articulable suspicion of criminal activity; and (3) encounters

that involve no coercion or detention and thus do not implicate fourth amendment

interests."

"An individual cannot be seized absent reasonable, objective grounds for

doing so." People v. Gherna,

(2003). The appropriate test to

determine whether a person seated in a parked vehicle has been "seized" by the police is

whether a reasonable person in the defendant's position would have believed he was free

to decline the officer's request or otherwise terminate the encounter. Luedemann,

. "When a police officer, through the use of physical force or show of

authority, has in some way restrained the liberty of a citizen, the court may conclude that

a 'seizure' has occurred." Carrera,

.

¶ 16 We disagree with the State that the encounter began as consensual where the

officer himself testified that when he exited his vehicle to make contact with the

defendant, he had his gun drawn. This show of authority clearly indicates that the

defendant was seized for fourth amendment purposes. Carrera,

.

Furthermore, although the officer testified that when he initially approached the

defendant she was free to leave, he acknowledged that had she left, he probably would

have followed her and activated his lights. Effectively, the defendant was seized from the

point where the officer pulled in behind her vehicle.

¶ 17 On appeal, the State speculates that the defendant may not have seen the officer's 6 gun when he approached her car. There is no evidence in the record that the defendant

testified at the suppression hearing. Nevertheless, this argument is without merit as the

seizure analysis "hinges on an objective evaluation of the police conduct and not upon the

subjective perception of the individual approached." Gherna,

.

¶ 18 Since we have determined that the defendant was seized, we turn our attention to

whether the seizure was reasonable. "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." People v. Close,

(2010).

"The investigatory stop must be justified at its inception."

The officer must be able to

point to specific, articulable facts which, taken together with rational inferences,

reasonably warrant the investigatory stop.

"The officer's suspicion must amount to

more than an inarticulate hunch [citations], but need not rise to the level of suspicion

required for probable cause [citation]."

¶ 19 Here, the officer's uncontroverted testimony establishes that he did not have any

suspicion of criminal activity when he initially began following the defendant's vehicle.

In fact, he testified that he was "looking for violations" and that the defendant's vehicle

was the only one in the area. The officer also testified that he was not aware that the

defendant had committed an infraction or violation of the law at the time he pulled his

unmarked car behind the Pontiac; rather, he testified that he followed the Pontiac onto the

private drive to see if anything "might happen." Here, the evidence reveals that the

officer could not articulate any facts to support a reasonable suspicion that the defendant

had committed, or was about to commit, a crime that would justify the investigatory stop. 7 ¶ 20 Alternatively, the State claims that the officer was acting in his community

caretaking capacity when he followed the defendant's vehicle onto the private drive.

Again, we disagree. "[C]ommunity caretaking refers to a capacity in which the police act

when they are performing some task unrelated to the investigation of crime, such as

helping children find their parents, mediating noise disputes, responding to calls about

missing persons or sick neighbors, or helping inebriates find their way home." People v.

McDonough,

(2010). The officer's own testimony belies the claim

that he was acting in a community caretaking capacity where he testified that it had

entered his mind that the driver of the Pontiac might be hiding from the police, involved

in theft, making methamphetamine, or foul play.

¶ 21 CONCLUSION

¶ 22 For the reasons stated, we reverse the trial court's denial of the defendant's motion

to quash arrest and suppress evidence. As the State cannot prevail on remand without the

evidence which we hold should have been suppressed, we also reverse the court's finding

of guilt and the order placing the defendant on court supervision.

¶ 23 Reversed.

¶ 24 JUSTICE WELCH, dissenting.

¶ 25 I respectfully dissent from the opinion of my distinguished colleagues.

¶ 26 This is a classic case of a Terry stop by an Illinois State Police officer. Terry

permits an officer to conduct an investigatory stop where there exists a reasonable 8 suspicion, based on specific and articulable facts, that the person detained has committed

or is about to commit a crime. Terry v. Ohio,

(1968).

¶ 27 In this case, it was late at night in a rural area in southern Illinois and the

defendant's car was the only vehicle on a public road in the area of the unmarked police

car. Out of curiosity, the officer followed the defendant's vehicle a short time when he

observed the defendant turn into a private lane abruptly and apparently extinguished its

lights. The lane was longer than the length of a football field. The officer did not see the

car drive toward the house, so he turned into the lane. He observed the car behind a pole

barn, which was located approximately 175 yards from the house. The car was parked

and its lights were extinguished. The officer stated:

"There's–I just–really just awkward. It was an awkward way to just pull off

in a driveway and shut off your lights. It depends on–it entered my mind, is were

they stealing something, maybe doing something involving anhydrous, making

methamphetamine."

The car's abrupt turn onto the private lane, the apparent extinguishment of the car's rear

taillights far from the house, and the parking of the car behind a pole barn, again far from

the house, justified an investigatory stop.

¶ 28 The officer stopped his car behind the defendant's car and went to the defendant's

driver-side window, which she rolled down. The driver told the officer that it was not her

property, and the officer noticed the smell of an alcoholic beverage coming from her

breath. The driver was asked to perform a field sobriety test. After the defendant failed

the field sobriety test, he arrested her for driving while under the influence of alcohol. 9 ¶ 29 The facts found by the trial court, the fact finder, encompass all of the elements of

a Terry stop, and I would not suppress the evidence against the defendant under these

circumstances. For the above reasons, I agree with the trial court and would affirm its

ruling.

10

NO. 5-13-0147

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Wayne County. ) v. ) No. 12-DT-7 ) KATELYN M. BOZARTH, ) Honorable ) Joe Harrison, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

Opinion Filed: January 26, 2015 ______________________________________________________________________________

Justices: Honorable Bruce D. Stewart, J.

Honorable Richard P. Goldenhersh, J., concurred Honorable Thomas M. Welch, J., dissented ______________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Sara D. Parrish, Assistant Appellate Defender, Maggie A. Appellant Heim, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 ______________________________________________________________________________

Attorneys Hon. David M. Williams, State's Attorney, Wayne County Courthouse, for 301 East Main Street, Fairfield, IL 62837, Patrick Delfino, Director, Appellee Lawrence M. Bauer, Deputy Director, Jay Paul Hoffmann, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Second District, 2032 Larkin Avenue, Elgin, IL 60123 (brief was prepared with the assistance of Marques Berrington, Third Year Law Student at The John Marshall Law School) ______________________________________________________________________________