FILED November 30, 2016 NO. 4-14-0781 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MARK N. WINCHESTER, ) No. 13CF1192 Defendant-Appellant. ) ) Honorable ) Richard P. Klaus, ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.

OPINION

¶1 A jury convicted defendant, Mark N. Winchester, of aggravated driving under the

influence of alcohol (aggravated DUI) (625 ILCS 5/11-501(d)(2)(B) (West 2012)), and the trial

court sentenced him to six years’ imprisonment. Defendant appeals, claiming the trial court erred

when it (1) denied his motion to suppress evidence and (2) relied on improper aggravating

factors already inherent in the charged offense when it sentenced him. We affirm.

¶2 I. BACKGROUND

¶3 On July 24, 2013, the State charged defendant by information with one count of

aggravated DUI (625 ILCS 5/11-501(d)(2)(B) (West 2012)). The information alleged defendant

drove or was in actual physical control of a motor vehicle at a time when he was under the

influence of alcohol and he had two prior driving under the influence (DUI) convictions. The charges arose from an encounter with University of Illinois police officer Ryan Snow. The facts

are undisputed for purposes of this appeal.

¶4 A. Motion “To Quash Arrest” and Suppress Evidence

¶5 On September 19, 2013, defendant filed a motion “to quash arrest” and suppress

evidence, arguing he was unlawfully seized by Snow. At the hearing on the motion, Snow

provided the following testimony.

¶6 Snow testified that on July 2, 2013, at approximately 1:20 a.m., he was on duty, in

uniform, armed, and in an unmarked patrol car. Driving westbound on Kirby Avenue, he

observed a Ford Explorer driving eastbound. The vehicle caught Snow’s attention because it was

the only vehicle on the road. While passing the Ford Explorer, Snow observed defendant “[with]

both hands on the wheel, *** griping tightly, leaning forward in [his] seat, and looking straight

ahead” (described as “tunnel vision”). Snow turned off a side street and ended up two blocks

behind the Ford Explorer. Snow followed the vehicle for over a mile, until it pulled into an

apartment parking lot. Snow pulled into an adjacent lot to turn around and exit the area. No

traffic violations had occurred.

¶7 No one exited the vehicle, and Snow decided he would “wait and see why that

person would not exit their vehicle after parking in an area like that.” After five minutes, Snow

exited his patrol car and approached the Ford Explorer. He approached the vehicle and observed

defendant slumped over the driver’s seat with keys in his right hand and a bottle of tea in his left

hand. He attempted to wake defendant by knocking on the window and yelling. He received no

response. Snow radioed for an assisting officer to set up his response time because he did not

know if defendant “had a medical emergency at that time.” Snow continued to knock on the

window and could not wake defendant.

-2- ¶8 Snow testified defendant eventually started to move around. At this time, Snow

was still unsure of his status or health. Defendant then held up his right hand, still grasping the

keys, raised his middle finger, and said, “no policia.” Snow asked defendant to open the door so

he could speak to him. Snow remained concerned about defendant’s medical status. When

defendant opened the door, Snow detected the odor of an alcoholic beverage emitting from the

vehicle. Defendant attempted to exit the vehicle. Defendant was lethargic and slow moving,

slurred his speech, and had difficulty standing. Snow asked defendant to sit back down because

he was concerned defendant would fall.

¶9 In his motion “to quash arrest” and suppress evidence, defendant argued he did

not consent to the interaction with Snow and Snow did not have a legal basis for conducting the

stop. Further, defendant argued the community caretaking exception was inapplicable because

Snow was investigating a crime “on a mere hunch *** [d]efendant had committed, was in the

process of committing, or was about to commit a crime or traffic violation.” Defendant requested

the stop and all that followed be suppressed.

¶ 10 The trial court denied the motion. The court stated, in relevant part, as follows:

“When [Snow] decided to follow the [d]efendant’s vehicle, [he]

was engaged in what police officers do. The [d]efendant took an

unusual route, although that phrase has not been described here, it

certainly is on the video, a fact with which I agree, to get to where

he got to. At no time did the officer attempt to effectuate a stop. He

probably wouldn’t have had a basis at that [point] to effectuate a

stop. He simply followed him. That’s what police officers do.

-3- The [d]efendant pulled into a parking lot. The police

officer pulled into a different lot and watched. Also, what police

officers do. He never effectuated a stop ***. All he did was watch.

And nothing happened for five minutes. At that point, he decided

that at 1:30 in the morning, nobody’s exited the vehicle, he’s going

to check on the welfare of the [d]efendant.

You can call it a consensual stop, you can call it a

community caretaker function. The Illinois Supreme Court’s not

wild about the latter phrasing, but having said that, he walks up to

the vehicle and he sees a citizen slumped over the wheel. And

there’s been no testimony to the contrary, that the [d]efendant was

either unconscious or asleep or whatever, in a vehicle. He then

proceeded to do exactly what he’s supposed to do, which is, check

on the welfare of the citizen.

At that point, there’s been no seizure. At that point, there’s

been no Terry stop [see Terry v. Ohio,

(1968)]. At that

point, all the officer has engaged in is a consensual encounter

situation, in the Court’s opinion.”

¶ 11 B. Trial

¶ 12 Snow testified at defendant’s trial with only slight variations. Snow testified

defendant’s driving route led him to believe he was attempting to elude him. Once defendant

awakened, defendant extended his middle finger and said, “f*** you, no policia.” When

defendant opened his door, he explained his girlfriend was driving the car and she went inside

-4- the apartment. Defendant argued he was not in the driver’s seat (Snow questioned defendant as

he was sitting in the driver’s seat). When Snow’s assisting officer arrived, he asked defendant to

step to the rear of the vehicle to perform field sobriety tests to make sure he was okay. Snow

believed defendant was driving under the influence. Snow administered three tests: the

horizontal gaze nystagmus, walk-and-turn, and one-legged stand. Defendant had difficulty

following instructions and could not successfully complete any of the tests. Snow placed him

under arrest, and defendant refused to submit to a Breathalyzer. The jury convicted defendant of

aggravated DUI (625 ILCS 5/11-501(d)(2)(B) (West 2012)).

¶ 13 C. Posttrial Motion

¶ 14 On August 20, 2014, defendant filed a posttrial motion, arguing the trial court

erred when it denied his motion to suppress evidence. Defendant argued, among other things,

Snow followed his vehicle because he believed the driver was leaning forward and focused

extremely hard on the task of driving, and this was not a valid basis for Snow to follow him and

eventually approach his vehicle (citing People v. Swisher,

,

(1990)). The court denied the motion.

¶ 15 D. Sentencing

¶ 16 The State recommended defendant be sentenced to the maximum term of seven

years’ imprisonment. The State argued, “the statutory factor in aggravation is the [d]efendant’s

criminal history. The [d]efendant is not here for the first or second time that he’s done this but

the third time he has committed the offense of driving under the influence. Most notably the last

time was 2010 *** and the time before that was 2005. Both times previously he was granted

terms of probation in those cases.” The State went on to discuss defendant’s prior theft

conviction with multiple petitions to revoke and his eventual prison sentence. It concluded,

-5- “[g]iven his criminal history and the [d]efendant’s repeated violation of the DUI statute, I’d ask

that the [d]efendant be sentenced to a period of seven years in [prison].”

¶ 17 The trial court sentenced defendant to six years’ imprisonment. In imposing its

sentence, the court stated it considered “the presentence report, the drug and alcohol evaluation,

the evidence submitted in advance in mitigation, [the parties’] arguments, [and] the [d]efendant’s

exercise of his right of allocution.” The court also detailed defendant’s “record of criminality”

and stated:

“The State articulated that one of the factors in aggravation present

is the [d]efendant’s record of criminality. I would note in 2004, a

conviction was entered as to Class 3 theft in Vermilion County and

that he was originally placed on 24 months of probation, that a

[petition to revoke] was filed, that he was ultimately resentenced to

30 months of probation and as part of that probation *** [he] was

ordered to obtain an alcohol and drug abuse evaluation and

complete treatment. He was ultimately then subject to another

petition to revoke in the same case, resentenced to an additional

term of probation, ultimately another [petition to revoke was] filed

in the same case and then [he] was sentenced to three months in

the Department of Corrections.

The [d]efendant has shown an inability to follow court

orders and to obey the terms of a community-based sentence. The

[d]efendant has continued to drive without a license. The

[d]efendant has continued to drink and drive without a license.

-6- The [d]efendant is a danger to the public and must be deterred

from the conduct that he has engaged in and a message of

deterrence must also be used to prevent similarly situated people

from engaging in this offense.” (Emphasis added.)

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant raises two main arguments. First, defendant contends the

trial court erred when it denied his motion to suppress evidence because he was unlawfully

seized by Snow and the community caretaking exception is inapplicable. Second, defendant

argues the trial court relied on improper aggravating factors inherent in the offense when it

sentenced him. The State maintains the trial court properly denied defendant’s motion because

the community caretaking exception applied and court did not err when it sentenced him. We

address each contention in turn.

¶ 21 A. Motion To Suppress Evidence

¶ 22 Defendant titled his motion as a “Motion to Quash Arrest and Suppress

Evidence.” This title is improper because defendant is not challenging his arrest as void but

challenging whether the arresting officer had probable cause or reasonable suspicion. A proper

title for such a motion is “motion to suppress evidence.” See People v. Hansen,

,

(“defendants should stop filing such motions and should

instead file only motions to suppress evidence”). We will treat it as a motion to suppress, but we

believe the issue deserves additional comment. The motion was improper in form, defendants

should stop filing such motions, and trial courts should no longer accept such motions.

-7- ¶ 23 Four-and-a-half years ago, this court in Hansen pointed out filing a “motion to

quash arrest” was meaningless when the defendant was really filing a motion to suppress

evidence based upon the defendant’s claim that the arresting officer improperly stopped the

defendant’s vehicle. In Hansen, this court explained suppressing the evidence obtained by the

police as a result of an improper stop is the entirety of the relief to which a defendant is entitled

and the only relief provided for in section 114-12 of the Code of Criminal Procedure of 1963

(Criminal Code) (725 ILCS 5/114-12 (West 2010)), which is titled, “Motion to Suppress

Evidence Illegally Seized.” We concluded our discussion in Hansen by noting a “motion to

quash arrest” (1) is unnecessary to achieve a defendant’s goal of suppressing evidence, (2) adds

nothing to an analysis of whether a motion to suppress based upon an allegedly illegal search or

stopping should be granted, and (3) only adds confusion to such an analysis. Hansen,

,

.

¶ 24 Since writing in Hansen of our disapproval of “motions to quash arrest,” this

court has frequently cited Hansen and reiterated that criticism. See People v. Carroll,

, ¶ 97; People v. Hart,

, ¶ 20; People v. Raithel,

, ¶ 22; People v. Cartmill,

, ¶ 7; People

v. Gaytan,

,

, rev’d on other grounds,

,

; People v. Allen,

, ¶ 38; and People v.

Campbell,

, ¶¶ 30-31.

¶ 25 In People v. Ramirez,

,

, this

court again addressed that subject and, quoting extensively from Hansen, explained what a

motion to suppress filed pursuant to section 114-12 of the Criminal Code “must clearly set forth

at a minimum” (emphasis in original)—namely, (1) the title of the motion should be “motion to

-8- suppress evidence,” (2) the motion to suppress must clearly identify the evidence sought to be

suppressed, and (3) the motion must state facts showing wherein the search and seizure were

unlawful.

¶ 26 In the present case, defendant filed a “motion to quash arrest” in September 2013,

instead of filing a proper “motion to suppress evidence.” That improper motion was filed almost

1½ years after our decision in Hansen. It appears this court’s message is not getting out

regarding the inappropriateness of filing “motions to quash arrest.”

¶ 27 One way to get defense counsel to stop filing “motions to quash arrest” when they

really mean to file “motions to suppress evidence” is for trial courts to sua sponte reject such

motions on their face and to direct defense counsel to file a proper motion to suppress if counsel

wishes to do so. This court previously took that action where counsel were filing improper

motions to dismiss in civil cases.

¶ 28 In Howle v. Aqua Illinois, Inc.,

,

, this

court addressed the ongoing problem of improper motions to dismiss being filed under section 2-

619.1 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-619.1 (West 2010)). We noted

section 2-619.1 of the Civil Code permitted counsel to file a combined motion to dismiss under

section 2-615 and section 2-619 of the Civil Code but required each part of such a motion be

limited to—and specify that it is made under—section 2-615 or section 2-619. Howle,

,

. Section 2-619.1 of the Civil Code also requires each

part of such a combined motion to “also clearly show the points or grounds relied upon under the

Section upon which it is based.” 735 ILCS 5/2-619.1 (West 2010).

¶ 29 In recognition of the ongoing problem and potential for confusion, this court

wrote, “trial courts should not—and need not—accept for consideration combined motions under

-9- section 2-619.1 that do not meet these statutory requirements. To avoid unnecessary

complications and confusion ***, trial courts should sua sponte reject such motions and give the

defendants who filed them the opportunity (if they wish) to file a section 2-619.1 motion that

meets the statutory requirements.” Howle,

,

;

see also Reynolds v. Jimmy John’s Enterprises, LLC,

,

(recommending trial courts take similar measures as those described in Howle);

Lavite v. Dunstan,

,

(recommending trial courts

take similar measures as those described in Reynolds).

¶ 30 The trial courts that hear criminal cases should do the same thing. If a trial court

receives a “motion to quash arrest,” it should not accept it for consideration and should point out

to counsel the motion is inappropriate for the reasons this court explained in Hansen and

Ramirez. The court should then give the counsel who filed the inappropriate motion the

opportunity to file a proper motion to suppress under section 114-12 of the Criminal Code.

Motion practice is sometimes complicated, but it need not be. “Motion to quash arrest” is an

arcane phrase that has a ring of authenticity but is actually meaningless verbiage.

¶ 31 Next, we address the proper standard of review for motions to suppress evidence.

“[W]e review a trial court’s ruling on a motion to suppress under a two-part standard: the trial

court’s factual findings will be reversed only if they are against the manifest weight of the

evidence, but the trial court’s ultimate ruling on whether suppression is warranted is reviewed

de novo.” People v. Chambers,

,

.

¶ 32 Police-citizen encounters have been divided into three tiers: (1) arrests of a

citizen, which must be supported by probable cause; (2) brief investigative detentions (Terry

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

- 10 - encounters, which do not involve coercion or detention. People v. Luedemann,

,

(2006). Defendant argues he was unlawfully seized as (1) Snow did

not have probable cause, (2) Snow did not have a reasonable, articulable suspicion of criminal

activity, and (3) he declined Snow’s encounter. In determining whether defendant’s fourth

amendment rights were violated, we must first determine whether he was seized.

¶ 33 1. Seizure

¶ 34 Defendant argues he was seized when Snow asked him to open his car door. A

person is seized for fourth amendment purposes when an officer, by means of physical force or

show of authority, has restrained the individual’s liberty. People v. Gherna,

,

(2003). The parties cite different tests to determine whether an individual is

seized for fourth amendment purposes. The State suggests the appropriate test is whether a

reasonable person would have believed he was not free to leave, citing United States v.

Mendenhall,

(1980). Defendant argues the proper test is whether a reasonable

person, taking into account all the circumstances of the incident, would feel free to decline the

officer’s requests or otherwise terminate the encounter, citing Luedemann,

,

.

¶ 35 Our supreme court has held “in situations in which the person’s freedom of

movement is restrained by some factor independent of police conduct the ‘free to leave’ test is

inapplicable and ‘the appropriate inquiry is whether a reasonable person would feel free to

decline the [officer’s] requests or otherwise terminate the encounter.’ ” Luedemann,

,

(quoting Florida v. Bostick,

(1991)). When a person is

seated in a parked vehicle, the appropriate test to determine if an individual has been seized is

“whether a reasonable person in defendant’s position would have believed he was free to decline

- 11 - [the officer’s] requests or otherwise terminate the encounter.” Luedemann,

,

. “The analysis requires an objective evaluation of the police conduct in

question and does not hinge upon the subjective perception of the person involved.” Luedemann,

,

.

¶ 36 There are four factors indicating a seizure may have occurred: “(1) the threatening

presence of several officers; (2) the display of a weapon by an officer; (3) some physical

touching of the person of the citizen; and (4) the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” Luedemann,

,

. These factors are not exhaustive, and a seizure can be found based on similar

coercive police behavior. Luedemann,

,

.

¶ 37 Defendant relies on Gherna for his assertion he was seized when Snow asked him

to open his car door. In Gherna, two uniformed officers were on bicycle patrol and observed two

females sitting in a parked pickup truck in an apartment complex parking lot. Gherna,

,

. Officer Wasson testified, as he and his partner passed the truck, he

saw a bottle of beer in the center console. Gherna,

,

. Wasson

stated the passenger appeared to be young, and he suspected possible underage drinking. Gherna,

,

. The officers stopped to identify the two females. Gherna,

,

. Wasson approached the driver’s side of the truck, and the

other officer approached the passenger side of the truck. Gherna,

,

. The defendant, the driver of the truck, was over the age of 21, and the passenger was her

13-year-old daughter. Gherna,

,

. The officers examined

the beer bottle and determined it was unopened and in its original container. Gherna, 203 Ill. 2d

- 12 - at 168,

. The officers began “ ‘casually talking’ ” with defendant, and Wasson

observed defendant became “ ‘very nervous.’ ” Gherna,

,

.

¶ 38 As Wasson conversed with the defendant, he noticed an item resembling a credit

card under her left thigh. Gherna,

,

. He asked the defendant

about the card, and she showed it to him. Gherna,

,

. Wasson

identified the card as an Illinois Link card, which was in the name of Lowell Briggs. Gherna,

,

. Wasson asked the defendant how she came into possession

of the card, and she claimed she did not know how the card got into her vehicle. Gherna,

,

. Wasson then asked the defendant to step out of the vehicle to

speak with him outside of the presence of her 13-year-old daughter. Gherna,

,

. Wasson asked the defendant if there were any additional items in the vehicle

belonging to Lowell Briggs. Gherna,

,

. The defendant told

Wasson the officers were “ ‘free to look.’ ” Gherna,

,

. The

officers did not search the vehicle at this time. Gherna,

,

.

Wasson asked the defendant if she had any illegal drugs or narcotics, to which she responded in

the negative. Gherna,

,

. Wasson paused for about 10

seconds, and the defendant began emptying her pockets, at which point a small, clear bag, which

contained several yellowish-white rocks later tested and identified as cocaine, fell on the ground.

Gherna,

,

. The defendant was arrested and charged with

unlawful possession of a controlled substance. Gherna,

,

.

¶ 39 The defendant filed a motion to suppress evidence, alleging her fourth amendment

rights were violated because she was searched without a warrant and without probable cause.

Gherna,

,

. More specifically, the defendant argued the

- 13 - officers’ initial stop amounted to a Terry stop and, once the officers determined there was no

underage drinking or open alcohol violations, their investigation should have ceased. Gherna,

,

. The State argued the entire encounter was consensual and,

therefore, the defendant’s fourth amendment rights were not implicated. Gherna,

,

. The trial court granted the defendant’s motion and concluded her

continued detention post-Terry stop constituted an unlawful seizure. Gherna,

,

. The trial court noted:

“ ‘Upon asking the defendant to leave the car so as to conduct a

conversation outside the presence of her daughter, the defendant

was unlawfully detained. The court rejects the State’s position that

this was a mere request because a person in the defendant’s

position could reasonably believe that upon being asked to step

away from the car, she was not free to leave. Accepting the

testimony that the defendant thereafter gave her consent to search,

the court finds such consent was tainted as a product of that

unlawful detention.’ ” Gherna,

,

.

¶ 40 On appeal, the trial court’s judgment was reversed. The appellate court found the

entire encounter between the defendant and the officers was consensual and, therefore, defendant

was not seized. Gherna,

,

. The Illinois Supreme Court

reversed the appellate court’s decision, concluding the trial court was correct. The supreme court

explained:

- 14 - “Under the totality of the circumstances at bar, we conclude

that the presence and positioning of the officers with their bicycles

on either side of defendant’s vehicle, combined with Officer

Wasson’s request to defendant to produce the bottle of beer for

examination after questioning defendant and her daughter about

their identities, constituted an official show of authority to which a

reasonable innocent person would feel compelled to submit. At the

time Officer Wasson asked defendant to hand him the bottle of

beer, a reasonable innocent person in defendant’s position would

not have felt ‘free to decline the officers’ requests or otherwise

terminate the encounter.’ [Citation.] At that instant, defendant’s

movement was restricted: the positioning of the officers and their

bicycles prevented defendant from either exiting the vehicle or

driving the vehicle away from the scene. This blocked movement,

combined with the request to examine the bottle of beer on the

heels of other questioning, would ‘ “have communicated to a

reasonable person that he was not at liberty to ignore the police

presence and go about his business.” ’ [Citations.]” Gherna,

,

.

¶ 41 Defendant suggests his case is similar to Gherna because “he was left with the

dilemma of either complying with the officer’s request or sitting awkwardly in his vehicle with

an officer standing just outside of it.” Additionally, he argues, similar to Gherna, Snow never

told him he was free to go or otherwise free to not comply with his request. Defendant suggests

- 15 - his case has an additional factor demonstrative of a seizure in that he expressed in unequivocal

terms he did not want to speak or interact with Snow when he extended his middle finger and

said “no policia.” He argues Snow persisted after being told he was not welcome, which

conveyed a message compliance with his request was required (citing Bostick,

).

In response, the State does not argue whether defendant was seized, but it suggests if he was, the

community caretaking exception applies.

¶ 42 We first address whether defendant was seized before addressing whether the

community caretaking exception applies. See Luedemann,

,

-

199 (“[T]he ‘community caretaking’ doctrine *** is invoked to validate a search or seizure as

reasonable under the fourth amendment. It is not relevant to determining whether police conduct

amounted to a seizure in the first place.”).

¶ 43 We disagree with the trial court’s conclusion this was a consensual encounter and

no seizure occurred. Based on the record, it appears defendant was seized when Snow asked him

to open the door to his vehicle. Nothing in the record indicates this was a consensual encounter.

As stated in Gherna, “an individual is not seized for fourth amendment purposes when police ask

questions of that individual, including a request for identification, so long as the officers do not

convey by their words or actions to the person being questioned that compliance with their

requests is required.” Gherna,

,

.

¶ 44 Defendant, while seated in his vehicle, declined Snow’s encounter by his words

and actions, by saying “no policia” or “f*** you, no policia” and extending his middle finger.

Defendant’s vehicle was parked between two cars, and Snow was between defendant’s driver’s

side door and the vehicle parked next to it. Similarly to Gherna, where there was an officer on

each side of the truck, Snow was outside defendant’s door, the only reasonable means for

- 16 - defendant to egress. Gherna,

,

. Snow proceeded to ask

defendant to open the door to his vehicle, even after defendant said “no policia” or “f*** you, no

policia” and extended his middle finger. Snow’s request for defendant to open his door after he

declined the encounter demonstrates his compliance was required. See Gherna,

,

.

¶ 45 Although there was only one officer, no display of a weapon, no physical

touching of defendant’s person, and no use of language or tone indicating compliance with

Snow’s request was required, other actions by Snow indicated compliance was required.

Luedemann,

,

. Even though Snow “asked” defendant to open

his door, Snow’s location and persistence after defendant declined the encounter were coercive,

and we cannot say a reasonable person would feel free to decline Snow’s request to open the

door or make a second attempt to terminate the encounter. See Luedemann,

,

. Since we determined defendant was seized for fourth amendment purposes,

we must address whether Snow had a reasonable, articulable suspicion or probable cause to

justify the seizure as reasonable. See People v. Butler,

,

(the fourth amendment only protects against unreasonable searches and seizures; a

search or seizure is reasonable if it is supported by either probable cause or reasonable

suspicion).

¶ 46 2. Probable Cause and Reasonable Suspicion

¶ 47 Next, defendant argues his seizure was unreasonable because it was not supported

by probable cause or reasonable suspicion. The State does not address this argument and instead

continues to rely on the community caretaking exception, if any seizure occurred at all. The facts

known to Snow at the time of the seizure did not amount to probable cause. Snow admitted he

- 17 - did not have knowledge of a traffic violation or criminal offense up to the moment he asked

defendant to open his car door. Snow testified his reason for approaching defendant’s vehicle

was to see why someone would not exit their car five minutes after parking at an apartment

complex and if there was a medical emergency. After defendant opened the car door, Snow

smelled alcohol and suspected defendant had been driving while intoxicated. The seizure was not

supported by probable cause.

¶ 48 Similarly, we find Snow did not have reasonable suspicion to justify the seizure.

“[A]n officer may, within the parameters of the fourth amendment, conduct a brief, investigatory

stop of a citizen when the officer has a reasonable, articulable suspicion of criminal activity, and

such suspicion amounts to more than a mere ‘hunch.’ ” Gherna,

,

(citing Terry,

). Snow admitted he did not have any knowledge of a traffic

violation or criminal offense when he asked defendant to open his car door. Therefore, the

seizure was not supported by reasonable suspicion.

¶ 49 3. Community Caretaking Exception

¶ 50 The State argues, if this court determines defendant was seized for fourth

amendment purposes, we should find Snow’s actions fall within the community caretaking

exception. Defendant argues Snow was not performing a community caretaking function when

he seized him because it was clear he was not in need of medical assistance.

¶ 51 Community caretaking refers to “a capacity in which the police act when they are

performing some task unrelated to the investigation of crime.” Luedemann,

,

. “[P]olice spend relatively less time than is commonly thought investigating

violations of the criminal law and spend a good deal of time performing functions as responding

to heart attack victims, helping children find their parents, helping inebriates find their way

- 18 - home, responding to calls about missing persons or sick neighbors, mediating noise disputes,

responding to calls about stray or injured animals, investigating premises left open at night,

taking lost property into their possession, and removing abandoned property.” (Internal quotation

marks omitted.) Luedemann,

,

.

¶ 52 The community caretaking exception is used to uphold searches or seizures as

reasonable under the fourth amendment as long as (1) “law enforcement officers [were]

performing some function other than the investigation of a crime” and (2) “the search or seizure

[was] reasonable because it was undertaken to protect the safety of the general public.” People v.

McDonough,

,

(2010). Historically, courts have used

the community caretaking exception to describe consensual encounters. See Luedemann,

,

. In 2006, the Illinois Supreme Court clarified the community

caretaking exception is “analytically distinct from consensual encounters and is invoked to

validate a search or seizure as reasonable under the fourth amendment.” Luedemann,

,

.

¶ 53 The Third District addressed the community caretaking exception with a similar

set of facts in People v. Carlson,

,

(1999). The Third

District’s opinion was pre-Luedemann and considered the community caretaking exception

analogous to consensual encounters; however, this difference does not affect its conclusion. In

Carlson, Deputy Nichols observed the defendant’s vehicle parked on the side of the road.

Carlson,

,

. Nichols activated his emergency lights and

approached the vehicle. Carlson,

,

. He observed the

defendant was unconscious in the driver’s seat and could not determine whether he was alive or

dead. Carlson,

,

. The keys were still in the ignition, but

- 19 - the car was not running. Carlson,

,

. Nichols tapped on

the window, and the defendant woke up. Carlson,

,

.

The defendant moved his hand, and it appeared he attempted to smoke a cigarette that was not

there. Carlson,

,

.

¶ 54 Nichols asked the defendant to roll down the window. Carlson,

,

. The defendant complied, and Nichols immediately detected a strong

odor of alcohol. Carlson,

,

. After the defendant

identified himself, Nichols requested him to step outside of the vehicle and produce a driver’s

license. Carlson,

,

. Nichols observed the defendant had

difficulty locating his license, had bloodshot eyes, was unsteady and confused, and appeared to

have wet himself. Carlson,

,

. Nichols eventually

arrested the defendant, and the defendant failed a Breathalyzer test. Carlson,

,

.

¶ 55 The Third District held, when Nichols initially approached the defendant,

including the request for defendant to roll down his window, he was performing under the

community caretaking function. Carlson,

,

. Once the

window was down, Nichols detected the odor of alcohol, which provided him with a reasonable,

articulable suspicion defendant was driving under the influence. Carlson,

,

. The court concluded defendant was not seized because there was no

evidence of coercive circumstances and Nichols was functioning as a community caretaker.

Carlson,

,

.

¶ 56 In the case at bar, Snow was acting in his community caretaking capacity when he

approached defendant’s vehicle out of concern no one exited the vehicle after five minutes at

- 20 - 1:20 a.m. Even though Snow followed defendant because it appeared defendant was “extremely

focused on driving,” this is of no consequence. This is not remarkable. After Snow followed

defendant, Snow pulled into an adjacent parking lot to turn around and exit the area after he

observed no traffic violations had occurred. When Snow noticed no one exited the vehicle, he

stopped and waited for five minutes. Snow was concerned as to why no one would exit the

vehicle at this time and place and decided to check on the driver. Snow’s motive for approaching

defendant’s vehicle was divorced from detention, investigation, or acquisition of evidence.

¶ 57 Snow’s concern legitimately increased when he found defendant slumped over the

driver’s seat. Snow continued to act in his community caretaking capacity as he attempted to

wake defendant and radioed for an assisting officer to step up his response time. Snow testified

he did not know what defendant was experiencing medically. When defendant awakened, he

raised his middle finger and said either “f*** you, no policia” or “no policia.” This

communication, coupled with defendant falling asleep within minutes after parking his car,

taking an unusual route, and Snow’s observation defendant was “extremely focused on driving,”

raised concerns about his medical status. Considering the totality of the circumstances, Snow

was acting in his capacity as community caretaker when he seized defendant by asking him to

open his car door to speak after defendant declined the encounter. Defendant’s actions were

unusual and gave rise to serious concerns regarding his medical status. When defendant opened

his car door, Snow detected the odor of an alcoholic beverage, and defendant exhibited

symptoms of being intoxicated, providing Snow with a reasonable, articulable suspicion. At this

point, Snow was no longer functioning as a community caretaker, and a DUI investigation

began.

- 21 - ¶ 58 Similarly to Carlson, after Snow awakened defendant, he asked defendant to open

his car door (the defendant in Carlson was asked to roll his window down). Carlson,

,

. The Third District found the officer’s request was part of his

community caretaking function. Carlson,

,

. The main

difference with the case at bar is defendant declined Snow’s encounter. However, Snow’s

request for defendant to open his door, which resulted in a seizure, was aligned with his interest

in defendant’s medical status. Based on the aforementioned circumstances, the seizure was

reasonable and justified under the community caretaking exception because (1) Snow did not

have an investigatory purpose and (2) his actions were taken for defendant’s safety.

¶ 59 Nonetheless, defendant cites the Fifth District’s opinion, People v. Robinson,

,

(2006), to support his contention Snow’s actions were not to

check on his well-being. In Robinson, Officer Stevens responded to a call to check on the well-

being of a man in a parked car who appeared to be slumped over the steering wheel. Robinson,

,

. When Stevens approached the car, he noticed the car

was running, and the man appeared to be unconscious. Robinson,

,

. Stevens then tapped on the driver’s window about six times in an attempt to wake

the driver. Robinson,

,

. Stevens discovered the driver’s

door was unlocked, opened it, and spoke to the driver in an attempt to wake him up. Robinson,

,

. The driver did not wake up, and Stevens grabbed his

jacket and moved his body back and forth to try to wake him. Robinson,

,

.

¶ 60 Stevens dispatched for an ambulance and continued to move the defendant back

and forth. Robinson,

,

. The defendant became

- 22 - responsive and was mumbling. Robinson,

,

. Stevens

observed the defendant had dilated eyes, exhibited slurred and mumbled speech, and had a strong

odor of an alcoholic beverage on his breath. Robinson,

,

. Stevens asked the defendant if he was okay, which he answered in the positive. Robinson,

,

. Stevens then asked if he had anything to drink that

night, and the defendant said he had too much to drink. Robinson,

,

. The defendant was charged with aggravated DUI. Robinson,

,

.

¶ 61 The Fifth District held Stevens was acting as a community caretaker by waking

the defendant and asking for his identification. Robinson,

,

. Since Stevens was responding to a 911 call, he had a basis to check on the defendant’s well-

being. Robinson,

,

. While Stevens was performing this

community caretaking function, he made observations that arose to a reasonable, articulable

suspicion the defendant was driving while under the influence of alcohol. Robinson,

,

. In the present case, defendant argues the officer in Robinson had a

valid reason to check on the well-being of the defendant, while Snow “offered no actual impetus

for why he approached the vehicle.” Further, defendant suggests “the vast majority of Snow’s

conduct was not undertaken with the goal of checking on [his] well-being.” However, defendant

overemphasizes the importance of the fact the officer in Robinson responded to a 911 call. A

police officer need not wait for a 911 call to perform as a community caretaker.

¶ 62 Snow followed defendant because he noticed defendant was driving with what he

described as “tunnel vision.” Once Snow determined no traffic violations occurred, he pulled

into in an adjacent lot to exit the area. However, Snow became concerned about defendant’s

- 23 - well-being when he did not immediately exit the car. Snow’s concern increased, and after five

minutes, he decided to approach the vehicle. Snow’s concerns were validated as he approached

the vehicle and observed defendant passed out and slumped over the driver’s seat. Nothing in the

record indicates Snow was investigating a crime or was acting in a role other than as a

community caretaker. Waiting for five minutes to exit a vehicle does not necessarily give rise to

an issue of a person’s well-being, but considering the time of day and the circumstances in their

totality, it was objectively reasonable for Snow to approach defendant’s vehicle, and then to rule

out a medical emergency.

¶ 63 The trial court did not err when it denied defendant’s motion to suppress

evidence, as Snow was reasonably functioning as a community caretaker when defendant was

seized.

¶ 64 B. Aggravating Factors

¶ 65 Defendant argues the trial court imposed an impermissible double enhancement

by considering his prior DUI convictions as aggravating factors. Defendant did not file a motion

to reconsider the sentence, and he asks this court to review the issue under the second prong of

the plain-error doctrine. Alternatively, defendant argues, if this court will not review his

challenge to his sentence, defense counsel was ineffective for failing to preserve the issue in a

motion to reconsider the sentence. The State contends defendant’s argument is forfeited because

he failed to properly preserve the issue and, alternatively, the court did not consider any

improper factors when it sentenced him and we should decline to address defendant’s ineffective

assistance argument.

¶ 66 1. Forfeiture

- 24 - ¶ 67 Defendant acknowledges he has forfeited this argument by not filing a motion to

reconsider the sentence in the trial court or objecting at the sentencing hearing. For an issue to be

preserved for review on appeal, the record must show (1) a contemporaneous objection to the

trial court’s error was timely made and (2) the issue was contained in a written posttrial motion.

People v. Rathbone,

,

(2003). The forfeiture

rule is intended to bar claims from review when they are not first considered by the trial court.

Rathbone,

,

. However, defendant requests his sentence

be reviewed for plain error.

¶ 68 2. The Plain-Error Doctrine

¶ 69 The forfeiture rule is not absolute, and Illinois Supreme Court Rule 615(a) (eff.

Jan. 1, 1967) provides that a court of review may review plain errors that affect substantial

rights. The plain-error doctrine is a narrow and limited exception to the forfeiture rule and allows

a reviewing court to consider unpreserved error when a clear and obvious error occurred and

(1) “the evidence is so closely balanced that the error alone threatened to tip the scales of justice

against the defendant, regardless of the seriousness of the error” or (2) “that error is so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial

process, regardless of the closeness of the evidence.” People v. Piatkowski,

,

(2007). Under this analysis, the defendant bears the burden of

persuasion. People v. Herron,

,

(2005). We begin our

plain-error analysis by first determining whether any error occurred at all. People v. Sargent,

,

(2010).

¶ 70 3. Double Enhancement

- 25 - ¶ 71 “A reasoned judgment as to the proper sentence to be imposed must be based

upon the particular circumstances of each individual case.” People v. Perruquet,

,

(1977). These circumstances include the defendant’s criminal history,

the defendant’s potential for reform, and the recognized interest in protecting the public and

providing a deterrent. People v. Hestand,

,

(2005).

However, a factor implicit in the offense for which the defendant has been convicted cannot be

used as an aggravating factor. See People v. Phelps,

,

(2004) (“a single factor cannot be used both as an element of an offense and as a basis for

imposing a harsher sentence than might otherwise have been imposed” (internal quotation marks

omitted)). When such a factor is used for a dual purpose, it is referred to as a double

enhancement. Phelps,

,

.

¶ 72 “The prohibition against double enhancements is based on the assumption that, in

designating the appropriate range of punishment for a criminal offense, the legislature

necessarily considered the factors inherent in the offense.” Phelps,

,

. Whether a trial court considered an improper factor when sentencing a defendant is a

question of law, which we review de novo. People v. Abdelhadi,

, ¶ 8,

. There is a strong presumption the trial court based its sentencing judgment on

proper legal reasoning. People v. Dowding,

,

(2009).

¶ 73 Defendant argues the trial court improperly relied on his two prior DUI

convictions when it sentenced him because they were already inherent in the offense of

aggravated DUI. The State argues the court properly considered defendant’s prior convictions

when it sentenced him to explain why a community-based sentence would be inappropriate.

- 26 - ¶ 74 Defendant relies upon Dowding and Abdelhadi for his assertion his prior DUI

convictions were improperly used as a double enhancement. In Dowding, the defendant

challenged the sentence on his aggravated DUI conviction and argued the court improperly

considered the fact his conduct caused the death of another (a factor inherent in the offense).

Dowding,

,

. At sentencing, the State requested the

maximum term of 14 years’ imprisonment and stated five times the defendant had “ ‘killed

someone’ ” or “ ‘caused the death of someone.’ ” Dowding,

,

. The State set forth the following aggravating factors: “(1) the defendant’s conduct

caused or threatened serious harm; (2) the defendant has a history of prior delinquency or

criminal activity; and (3) the sentence is necessary to deter others from committing the same

crime.” Dowding,

,

. The trial court considered a

number of factors at sentencing and stated, “ ‘The factors in aggravation that I do find apply in

this case are, Number 1, that the defendant’s conduct caused or threatened serious harm. No

question, this defendant’s conduct in this offense caused the greatest harm there could be, that is

the death of another person.’ ” Dowding,

,

. On review,

the Second District held the trial court improperly considered the victim’s death as an

aggravating factor when it expressly stated causing the victim’s death was an aggravating factor

on which the sentence was based. Dowding,

,

(finding the trial court’s sentence mirrored the State’s argument). The defendant’s sentence was

reversed, and the court remanded for a new sentencing hearing. Dowding,

,

.

¶ 75 In Abdelhadi, the defendant challenged the sentence on his aggravated arson

conviction and argued the trial court improperly considered the threat of harm to others because

- 27 - it was a factor inherent in the offense. Abdelhadi,

, ¶ 6,

. The State argued the following factors in aggravation: “(1) the defendant’s acts endangered

or could have endangered the lives of one or more people inside the building; (2) the defendant

had a criminal history; and (3) the defendant was on probation when the crime was committed.”

Abdelhadi,

, ¶ 3,

. When issuing its sentence, the trial

court stated, “ ‘Specifically in aggravation the Court has considered that the conduct caused by

the defendant did, in fact, endanger the lives of individuals. That he was on probation at the time

of the event. Court has considered his criminal history in aggravation.’ ” Abdelhadi,

, ¶ 4,

.

¶ 76 The Second District found its decision in Dowding controlling. The court held,

“we find that the trial court’s reference to the defendant’s threat of harm to others, with no

elaboration or description of that factor, did not amount to merely a mentioning within the

‘nature and circumstances’ of the crime. Instead, the mirroring between the factors the State

argued in aggravation and the factors used by the trial court in sentencing shows that there was,

in fact, reliance by the trial court on the implicit factor.” Abdelhadi,

,

¶ 14,

. The court found reversing the defendant’s sentence and remanding for a

new sentencing hearing was proper because it was unclear how much weight the trial court

placed on the improper factor. Abdelhadi,

, ¶¶ 20-21,

.

¶ 77 Defendant argues his case is indistinguishable from Dowding and Abdelhadi

because the State argued his prior DUI convictions in aggravation, similar to the harm caused or

threat of harm caused elements considered in Dowding and Abdelhadi, respectively. Defendant

points out, “the State went on to explain that [defendant] had a 2010 and 2005 DUI conviction,

as well as a prior theft conviction, before asking the court to sentence [him] to seven years, the

- 28 - maximum possible sentence, because of [his] ‘criminal history and [his] repeated violation of the

DUI statute.’ ” Defendant suggests the trial court adopted the State’s argument when it said, “the

State has articulated that one of the factors in aggravation present is the [d]efendant’s record of

criminality.” The court’s only direct statement referencing defendant’s two prior DUI

convictions was, “[d]efendant has continued to drink and drive without a license.”

¶ 78 Although not cited by either party, we find People v. Morrow,

,

, instructive on this issue, as it addressed both Dowding and Abdelhadi in a

factually similar case. In Morrow, the defendant was convicted of aggravated DUI (with at least

five prior DUI convictions), a Class X felony. Morrow,

, ¶ 1,

. The defendant argued the trial court erred when it used his prior DUI convictions in

aggravation when the convictions were used to elevate the offense to a Class X felony. Morrow,

, ¶ 1,

. At sentencing, the State presented evidence the

defendant had 7 DUI convictions between 1987 and 1995, had 10 total DUI arrests (two were

reduced to reckless driving), was sentenced to prison twice for aggravated DUI, and had an

alcohol-related conviction of violation of an order of protection in 2003 and an arrest for

criminal damage to state property in 2009. Morrow,

, ¶ 4,

. The State referred to the defendant’s prior DUI incidents and argued he was a danger to the

public. The State requested he be sentenced to 15 years’ imprisonment. Morrow,

, ¶ 5,

.

¶ 79 Before issuing its sentence, the trial court stated, “there are a number of people in

this society that are abused as children and they don’t go out to repeatedly violate the driving

under the influence of alcohol laws of this state or any state on a repeated basis.” (Internal

- 29 - quotation marks omitted.) Morrow,

, ¶ 7,

. The Second

District quoted the trial court and stated, in relevant part, as follows:

“[T]he vast majority of offenders ‘are so impacted by that one

arrest, either the public shame or self-reflection how they got there,

they never, ever put themselves in that position again. But yet you

find yourself here for the eighth violation, the eighth time.’

Reciting defendant’s previous DUI convictions, along with his

other convictions, the court stated that all the trips to prison did not

slow defendant down. Indicating a concern for public safety and

citing the need for deterrence, the court sentenced defendant to 13

years’ incarceration.” (Emphasis added.) Morrow,

, ¶ 8,

.

¶ 80 The Second District held Morrow was distinguishable from Dowding and

Abdelhadi. It found the trial court’s statements went only to the nature and circumstances of the

offense and to other proper factors. Morrow,

, ¶ 19,

.

Unlike Dowding and Abdelhadi, the court did not solely rely on the fact defendant had at least

five prior DUI convictions. Morrow,

, ¶ 8,

. The trial

court never specifically stated it was considering the prior convictions in aggravation, and the

State did not ask it to. Morrow,

, ¶ 8,

. The State’s

arguments showed that it was discussing the prior convictions to address recidivism, inability to

learn from prior punishments, deterrence, and the protection of society. Morrow,

, ¶ 8,

.

- 30 - ¶ 81 We find our case more comparable to Morrow and conclude the trial court did not

improperly consider defendant’s prior DUI convictions at sentencing. The State in this case did

not focus solely on defendant’s DUI convictions when it discussed his criminal history. When

the court stated, “The State articulated that one of the factors in aggravation present is the

[d]efendant’s record of criminality,” it was not improper. The court went on to discuss

defendant’s prior theft conviction and the multiple petitions to revoke that were filed, evidencing

his inability to comply with a community-based sentence. Additionally, similarly to Morrow, the

discussion regarding defendant’s prior DUI convictions went only to the nature and

circumstances of the offense and other proper factors. Morrow,

, ¶ 19,

; see People v. Thomas,

,

(1996) (finding

“while the fact of a defendant’s prior convictions determines his eligibility for a Class X

sentence, it is the nature and circumstances of these prior convictions which, along with other

factors in aggravation and mitigation, determine the exact length of that sentence” (emphases in

original)).

¶ 82 The State presented defendant’s criminal history to show defendant’s lack of

rehabilitative potential, the need for deterrence, and the concern it had over the public’s safety.

After reviewing the record as a whole, no evidence indicated the court improperly considered

defendant’s prior DUI convictions. Because no error occurred, defendant cannot establish plain

error. Since we disposed of defendant’s double-enhancement argument under plain error, we

need not address whether counsel was ineffective for failing to properly preserve the issue for

appellate review.

¶ 83 III. CONCLUSION

- 31 - ¶ 84 We affirm the trial court’s judgment. As part of our judgment, we award the State

its $75 statutory assessment against defendant as costs of this appeal.

¶ 85 Affirmed.

- 32 -