NOTICE FILED This Order was filed under

November 24, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-21-0122 4th District Appellate limited circumstances allowed under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) McLean County CHARLES STEELE, ) No. 19DT696 Defendant-Appellee. ) ) Honorable ) Pablo A. Eves, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Holder White concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in granting defendant’s motion to suppress evidence.

¶2 On February 23, 2021, the trial court granted defendant Charles Steele’s motion to

suppress evidence, finding the police officer who pulled over defendant’s car did not have

reasonable suspicion to justify the stop. The State filed a certificate of impairment, and this

appeal followed. On appeal, the State makes the following arguments: (1) defendant did not

establish a prima facie case the police officer lacked reasonable suspicion for the traffic stop;

(2) the trial court erred by finding the police officer who stopped defendant’s car did not have

reasonable suspicion; and (3) even assuming arguendo the stop was not lawful, the exclusionary

rule should not apply because the police officer who stopped defendant did not engage in police

misconduct. For the following reasons, we affirm the trial court’s order granting defendant’s

motion to suppress. ¶3 I. BACKGROUND

¶4 On November 16, 2019, defendant was arrested for driving under the influence of

alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2018)) and illegal transportation (625

ILCS 5/11-502(a) (West 2018)). On September 4, 2020, defendant filed a motion to suppress

evidence, arguing the police did not have reasonable and articulable suspicion justifying the stop

of his vehicle on November 16, 2019.

¶5 On February 23, 2021, the trial court held a hearing on defendant’s motion to

suppress. The audio recording system did not function during the first part of the hearing. A

bystander’s report signed by the assistant public defender, the assistant state’s attorney, and the

trial judge was included as part of the record. The bystander’s report stated:

“Prior to the audio recording being corrected, [defendant] was sworn in and called

to the stand by [defense counsel]. He was asked if he remembers the night in

question, where he answered affirmatively. He was then asked if he had

committed any traffic infractions that night, he responded that he did not.

Assistant State’s Attorney *** did not have any cross examination. At this time,

[defense counsel] asked that the burden be shifted to the state. [The assistant

state’s attorney] moved for a directed finding and was denied. The burden was

shifted [to the State], and the audio recording was then restarted. This

encompasses all events not captured on recording.”

¶6 The State then called Officer Robert King of the Le Roy Police Department.

Officer King testified he had training in DUI detection and investigation and had investigated

approximately 110 DUI offenses. On November 16, 2019, around 7 p.m., he stopped at the

Freedom gas station in Le Roy, Illinois. Officer King indicated it was his routine to stop at

-2- Freedom at the beginning of his shift to get a soft drink and do a business check by talking to the

clerk, whom he had known for many years. When he parked his patrol vehicle in front of the gas

station, he looked inside and saw defendant swaying from side to side. Officer King then entered

the gas station as defendant was leaving and smelled the strong odor of alcohol coming from

defendant as they passed. Officer King noted alcohol was not sold at the gas station. Further,

other than the clerk who Officer King knew did not drink alcohol, defendant was the only person

in the gas station. Defendant then walked to a vehicle and “staggered a little bit” before he got

into the driver’s seat. Officer King immediately walked back to his squad car. Defendant pulled

onto Main Street, and Officer King followed him. Defendant then turned down an alley a little

north of the gas station and next made a right-hand turn south onto Chestnut Street, followed by

a right hand turn onto Cedar Street. He then turned back into the Freedom gas station he had just

left.

¶7 Officer King parked across the street and watched defendant. According to

Officer King, he thought it was odd defendant returned to the gas station and believed defendant

possibly was attempting to elude him. Defendant went back into the gas station for

approximately one minute, then exited the station, returned to the vehicle he was driving, and

made a left turn out of the parking lot onto Main Street. Officer King resumed following

defendant. Defendant made a right turn onto Pine Street, then turned right onto Chestnut Street,

and continued on Chestnut Street until he turned into a Casey’s gas station. At that point, Officer

King stopped defendant, believing defendant was potentially impaired by alcohol based on his

initial observations of defendant at the Freedom gas station and defendant’s driving. We note the

record does not indicate the officer ever spoke to the gas station clerk about her observations of

defendant either on the night the officer arrested defendant or as a follow-up investigation prior

-3- to the suppression hearing. Officer King acknowledged he did not observe defendant commit a

traffic violation.

¶8 In ruling on defendant’s motion to suppress, the trial court stated Officer King’s

description of defendant’s driving was credible but defendant did not engage in erratic driving by

driving in a circle back to the gas station he just left. The court did note it seemed odd defendant

went to the same gas station twice and then went to a second gas station. However, the court

emphasized Officer King did not observe defendant commit any traffic violations. The court did

not question Officer King’s testimony that he observed defendant swaying inside the gas station

or that defendant smelled strongly of alcohol when the two men were in close proximity.

However, the court did question the credibility of Officer King’s testimony that he saw

defendant stagger as defendant walked across the parking lot.

¶9 According to the trial court, “what we’re actually looking at in terms of the

standard reasonable articulable suspicion to believe that someone is not capable or is committing

driving under the influence I should say or impaired driving is sort of belied by the observations

of the officer.” The court continued, “There were no traffic violations during those trips, and any

observations about the strong odor of alcohol and the swaying don’t necessarily add up to

impaired, or I should say a reasonable articulable suspicion that an individual is operating a

motor vehicle while under the influence.” The court concluded Officer King did not have

reasonable suspicion to stop defendant. However, the court also noted it did not think it would

tell Officer King not to make the stop in this case because the court wanted Officer King “out

there protecting our community.” Regardless, the court indicated Officer King did not have

reasonable suspicion to make the stop. According to the court: “I think that there had to be

something more than the strong odor of alcohol and the sway that was seen, that was not in the

-4- context of standardized field sobriety test. It was a sway, it was unsolicited, it was unelicited by

the officer. Even standing here I’m swaying and both of my feet are on the ground. So I don’t

think there was enough. Motion to suppress evidence is granted.”

¶ 10 On February 24, 2021, the State filed a certificate of impairment, and this appeal

followed.

¶ 11 II. ANALYSIS

¶ 12 A. Standard of Review and Prima Facie Case

¶ 13 The question on appeal is whether the trial court erred in granting defendant’s

motion to suppress. This entails a two-part standard of review. People v. Brooks,

,

. “Under this standard, a circuit court’s factual findings are

reversed only if they are against the manifest weight of the evidence, while the court’s ultimate

legal ruling as to whether suppression is warranted is reviewed de novo.” Brooks,

.

¶ 14 “When a defendant files a motion to suppress evidence, he bears the burden of

proof at a hearing on that motion.” Brooks,

. The defendant must first

establish a prima facie case the evidence in question was obtained as the result of an illegal

search or seizure. Brooks,

. A prima facie showing means the defendant

has the primary responsibility for establishing the legal and factual bases for the motion to

suppress. Brooks,

. “If a defendant makes a prima facie case, the burden

shifts to the State to present evidence to counter the defendant’s prima facie case. [Citation.]

However, the ultimate burden of proof remains with the defendant.” Brooks,

.

¶ 15 The State initially argues the trial court erred in finding defendant established a

-5- prima facie case the stop in this case was unlawful, which shifted the burden to the State to

present evidence countering defendant’s prima facie case. However, defendant presented

evidence he was stopped by the police officer while defendant was driving his motor vehicle at a

time when defendant had committed no traffic offenses. See People v. Chestnut,

,

(2010) (holding the defendant’s prima facie case must show he

was doing nothing unusual to justify the warrantless seizure). Moreover, as our supreme court

has held, defendant still bore the ultimate burden of proof with regard to his suppression motion.

Brooks,

.

¶ 16 B. Reasonable Articulable Suspicion

¶ 17 The ultimate issue here is whether Officer King had a reasonable articulable

suspicion to stop defendant’s vehicle. A citizen has the right to be free from unreasonable

searches and seizures under both the United States and Illinois Constitutions. U.S. Const.,

amends. IV, XIV; Ill. Const. 1970, art. I, § 6. “The cornerstone of the fourth amendment is

reasonableness, which seeks to balance the interest in according discretion in enforcing the law

for the community’s protection and safeguarding against invasions of citizens’ privacy.” People

v. Hill,

, ¶ 19,

. For purposes of the fourth amendment,

reasonableness normally requires a warrant supported by probable cause. People v. Love,

,

(2002).

¶ 18 However, a police officer may conduct a brief, investigatory stop of an individual

if the officer has a reasonable belief the individual has committed or is about to commit a crime.

People v. Timmsen,

,

(citing Terry v. Ohio,

(1968)). According to our supreme court:

-6- “The officer must have a ‘reasonable, articulable suspicion’ that criminal activity

is afoot. [Citation.] Although ‘reasonable, articulable suspicion’ is a less

demanding standard than probable cause, an officer’s suspicion must amount to

more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal

activity. [Citation.] The investigatory stop must be justified at its inception and

the officer must be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant the

governmental intrusion upon the constitutionally protected interests of the private

citizen. [Citation.] In judging the officer’s conduct, we apply an objective

standard and consider, ‘would the facts available to the officer at the moment of

the seizure or the search “warrant a man of reasonable caution in the belief” that

the action taken was appropriate?’ [Citation.] Further, when evaluating the

validity of the stop, we consider ‘ “the totality of the circumstances—the whole

picture.” ’ [Citation.]” (Emphasis added.) Timmsen,

.

The standard established in Terry has been codified into Illinois law at section 107-14 of the

Code of Criminal Procedure of 1963 (725 ILCS 5/107-14 (West 2018)). The Terry standard

governs motor vehicle stops. Timmsen,

.

¶ 19 We initially note the trial court found Officer King’s testimony that defendant

staggered in the parking lot lacked credibility. The State does not dispute this credibility finding

nor does the State argue the court’s conclusion defendant did not stagger was against the

manifest weight of the evidence. Instead, the State asserts the officer’s observation of defendant

swaying and the officer’s detection of the strong odor of an alcoholic beverage when defendant

walked past the officer were “more than sufficient” to justify the stop. In its brief, the State

-7- further maintains “the strong odor of alcohol alone is sufficient to satisfy the ‘low bar’ of

reasonable suspicion.” In support of this proposition, the State cites People v. McDonough,

,

(2010). We find McDonough is readily distinguishable, if not

inapposite.

¶ 20 In McDonough,

,

, a police officer observed a

vehicle with its lights extinguished parked on the side of a busy highway. The officer stopped

his patrol car behind the vehicle, activated his emergency lights, and approached the driver’s side

door of the parked vehicle. McDonough,

,

. The

defendant, who was the driver of the vehicle, partially rolled down his window, and the officer

detected the odor of alcohol on defendant’s breath. McDonough,

,

. Defendant then admitted he had been drinking. McDonough,

,

. The supreme court held this set of facts fell “within the community caretaking

exception to the fourth amendment.” McDonough,

,

. Here,

the State does not argue Officer King was engaged in a community caretaking role when he

stopped defendant’s vehicle.

¶ 21 The State also cites People v. Patel,

,

,

arguing “there is no difference between reasonable suspicion that justifies prolonging a traffic

stop and reasonable suspicion that justifies a traffic stop.” However, in Patel, the defendant was

stopped by a police officer for driving 19 miles per hour over the speed limit. Patel,

. Then, when the officer spoke with the defendant, the officer smelled an

odor of alcohol emanating from defendant as well as from inside the vehicle. Patel,

. The officer observed defendant’s eyes were glassy, and defendant

admitted he had just left a restaurant where he had consumed 2½ pale ale beers. Patel, 2020 IL

-8- App (4th) 190917, ¶ 5. Quite obviously, the facts in Patel are not remotely similar to the facts in

the present case.

¶ 22 As to defendant’s swaying inside the gas station, the trial court found defendant’s

swaying while his feet were stationary was insignificant. As previously indicated, the court

stated, “even standing here, I’m swaying and both of my feet are on the ground.”

¶ 23 Defendant argues Officer King did not seize him when defendant entered his

vehicle after he exited the Freedom gas station on the first occasion because the officer did not

yet have sufficient reasonable suspicion to believe defendant was under the influence. The State

essentially does not respond to this argument, and we note the officer also did not seize

defendant when defendant entered his vehicle after exiting the gas station on the second

occasion. The impetus of defendant’s argument is that Officer King followed defendant’s

vehicle to observe whether defendant’s operation of his motor vehicle might indicate impaired

driving. The record reflects the officer did not observe any traffic violations as defendant drove

several blocks and negotiated at least six turns before being stopped. The record further does not

indicate the officer observed any erratic driving like irregular changes of speed or weaving

within the lanes of the streets. Thus, in the immediate moment before the seizure, the officer had

just observed defendant’s unremarkable and satisfactory operation of his motor vehicle.

¶ 24 In its reply brief, the State emphasizes defendant’s evasive driving was a

significant factor in forming the officer’s reasonable suspicion to stop defendant’s vehicle.

However, the trial court’s factual findings did not include any reference whatsoever to “evasive

driving” on the part of defendant. While Officer King speculated in a single sentence of his

testimony, “maybe he’s trying to get away from me because he can see me behind him,” the

-9- court did not consider defendant’s driving as evasive or elusive. Accordingly, the State’s strong

emphasis on defendant’s evasiveness is unconvincing.

¶ 25 Based on all of the foregoing, we conclude the trial court did not err in finding

Officer King lacked a reasonable articulable suspicion that criminal activity was afoot at the

moment of defendant’s seizure.

¶26 C. Exclusionary Rule

¶ 27 As a final matter, the State argues the exclusionary rule does not apply even if the

police officer did not have reasonable suspicion to stop defendant’s vehicle because Officer King

did not engage in misconduct. Defendant asserts the State has forfeited this argument because it

was not raised before the trial court and is now made for the first time on appeal. We agree with

defendant. “Issues not raised in the trial court are generally considered waived on appeal.

[Citation.] The principal of waiver applies to the State as well as the defendant in a criminal

case. [Citation.]” People v. Holloway,

,

(1981). Thus, we

decline to address the State’s argument the exclusionary rule does not require suppression of the

evidence gathered following the stop of defendant’s vehicle.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the trial court’s judgment allowing defendant’s

motion to suppress evidence.

¶ 30 Affirmed.

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