People v. McDonough ( 2010 )

Docket No. 109489.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT G. McDONOUGH, Appellant.
Opinion filed November 18, 2010.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
Defendant, Robert G. McDonough, was charged in the circuit
court of Jersey County with driving under the influence of alcohol
(625 ILCS 5/11–501(a)(2) (West 2008)). Defendant filed a motion to
suppress evidence and quash arrest. The circuit court granted
defendant’s motion and subsequently rescinded the statutory summary
suspension of his driver’s license. The State appealed to the appellate
court (see 210 Ill. 2d R. 604(a)). A divided panel of the appellate
court reversed the circuit court’s order to suppress evidence and
quash arrest and remanded the cause to the circuit court for further
proceedings. 395 Ill. App. 3d 194.
This court allowed defendant’s petition for leave to appeal (210
Ill. 2d R. 315(a)). We now affirm the judgment of the appellate court,
albeit for a reason different from that upon which the appellate court
relied, and remand the cause to the circuit court.
I. BACKGROUND
The circuit court held an evidentiary hearing on defendant’s
motion to suppress evidence and quash arrest. The only witnesses who
testified were Illinois State Trooper Greg Brunnworth and defendant.
The hearing adduced the following testimony.
On October 10, 2008, at approximately 7:30 p.m., Trooper
Brunnworth was on routine patrol in uniform in his marked squad car
on Illinois State Route 100, east of Grafton. At that point the
ordinarily north-south highway runs east-west along the Mississippi
River. The busy highway has four lanes, with two lanes in each
direction separated by a center median. A guard rail separates the
southbound lanes from the river.
As Brunnworth traveled in the northbound lanes, he noticed an
automobile stopped on the shoulder of the southbound lanes with its
headlights off. The car had not been there 10 minutes earlier.
Brunnworth did not observe anything unusual; he was not “curious”
or “suspicious,” nor did he “have a hunch” about anything. However,
he decided to inquire whether the car’s occupants needed assistance.
Brunnworth turned his squad car around and approached the stopped
automobile, which now had its emergency flashers activated.
Brunnworth turned on his overhead oscillating emergency lights as he
pulled up behind the automobile on the shoulder of the road.
Brunnworth testified that he activated his emergency lights for his
safety because it was dark and there was a “lot of traffic.”
Brunnworth exited his squad car and approached the stopped
automobile. Defendant was the driver and his wife was the front seat
passenger. Brunnworth shined a flashlight into defendant’s car and did
not observe weapons or liquor. Brunnworth asked defendant “if
everything was okay.” Brunnworth testified that, at this point in their
encounter, if defendant had displayed “a little sign that says I’m fine
and I refuse to speak to you,” Brunnworth “probably would have let
him go.” In contrast, defendant testified that when he saw the
emergency lights, he did not feel free to leave and felt obligated to
answer Brunnworth’s questions.
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Defendant rolled down the driver’s window slightly and responded
that he was waiting for a friend. “Within a matter of seconds,”
Brunnworth detected the odor of alcohol on defendant’s breath.
Brunnworth asked defendant “how much he had to drink,” to which
defendant responded “three.” Brunnworth asked defendant to take
some field sobriety tests to ensure that he could safely drive home.
The police report stated that defendant failed the field sobriety tests.
Although defendant believed that he could not refuse to perform the
tests, he refused to perform the last test Brunnworth sought to
administer, a Breathalyzer test. According to defendant: “I figured I
was going to jail no matter what I did.” Defendant acknowledged that
Brunnworth never threatened him in any manner throughout their
encounter. Although Brunnworth did not initially observe liquor when
he shined his flashlight into defendant’s car, the police report stated
that defendant “had open alcohol in vehicle.” Defendant was arrested.
On November 25, 2008, defendant filed a motion to suppress
evidence and quash arrest. The hearing on the motion adduced the
above-described testimony. At the close of the evidence, defendant
argued that he was seized and that Brunnworth was not performing a
community caretaker function because he “had no reason to believe
that [defendant] was in need of assistance.” The State responded that
Brunnworth was performing a community caretaker function when he
pulled up behind defendant’s stopped automobile and that Brunnworth
was justified in activating his emergency lights for safety reasons.
In January 2009, the circuit court granted defendant’s motion to
suppress evidence and quash arrest. In a written order, the court
found that Brunnworth and defendant did not have a valid community
caretaking encounter because Brunnworth activated his emergency
lights. In March 2009, the circuit court denied the State’s motion to
reconsider.
On appeal, a divided panel of the appellate court reversed the
circuit court’s order to suppress evidence and quash arrest, and
remanded the cause to the circuit court for further proceedings. 395
Ill. App. 3d 194. The appellate court posited that “the necessary
condition precedent for the exclusionary rule’s application is police
misconduct. Thus, absent police misconduct, the exclusionary rule
does not apply because there is no misconduct to deter.” 395 Ill. App.
3d at 199. The appellate court assumed arguendo that Brunnworth’s
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activation of his emergency lights constituted a “seizure” in violation
of the fourth amendment. However, the court reasoned that the
exclusionary rule should not apply because that act did not constitute
police misconduct. 395 Ill. App. 3d at 199-201. Justice Myerscough
disagreed with the court’s focus on the availability of the exclusionary
rule as a remedy against this assumed violation of the fourth
amendment, rather than determining whether the fourth amendment
was violated in the first place. Justice Myerscough concluded that no
fourth amendment violation occurred in this case. 395 Ill. App. 3d at
201-02 (Myerscough, J., specially concurring).
We allowed defendant’s petition for leave to appeal (210 Ill. 2d R.
315(a)). Additional pertinent background will be discussed in the
context of our analysis of the issues.
II. ANALYSIS
A. Alleged Fourth Amendment Violation
Before this court, defendant contends that the appellate court
erred in reversing the circuit court’s suppression order. Defendant
assigns error to the appellate court’s holding that Brunnworth’s
assumed fourth amendment violation did not constitute sanctionable
police misconduct. Defendant argues that his improper seizure was,
“by itself, sufficient police misconduct to trigger application of the
exclusionary rule under the [Fourth] Amendment, regardless of the
lack of additional acts of police misconduct.”
In response, the State first contends that even if defendant were
“seized” when Brunnworth activated his emergency lights, the seizure
was reasonable pursuant to the community caretaker exception to the
fourth amendment. The State alternatively contends that if we
conclude that Brunnworth violated defendant’s fourth amendment
rights, the exclusionary rule should not apply in this case to bar
admission of the evidence discovered as a result of that seizure. We
agree with the State’s first contention. The analyses of the lower
courts, and the arguments of counsel before this court, require a
thorough discussion of the pertinent legal principles.
We apply the standard of review adopted by the United States
Supreme Court in Ornelas v. United States, 517 U.S. 690, 134 L. Ed.
2d 911, 116 S. Ct. 1657 (1996). In reviewing a circuit court’s ruling
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on a motion to suppress evidence, mixed questions of law and fact are
presented. Findings of historical fact made by the circuit court will be
upheld on review unless such findings are against the manifest weight
of the evidence. This deferential standard is grounded in the reality
that the circuit court is in a superior position to determine and weigh
the credibility of the witnesses, observe the witnesses’ demeanor, and
resolve conflicts in their testimony. However, a reviewing court
remains free to undertake its own assessment of the facts in relation
to the issues presented and may draw its own conclusions when
deciding what relief should be granted. Accordingly, we review de
novo the ultimate question of whether the evidence should be
suppressed. People v. Jones, 215 Ill. 2d 261, 267-68 (2005); People
v. Sorenson, 196 Ill. 2d 425, 430-31 (2001).
1. Reasonableness
The fourth amendment to the United States Constitution
guarantees the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const., amend. IV; see also Elkins v. United States,
364 U.S. 206, 213, 4 L. Ed. 2d 1669, 1675, 80 S. Ct. 1437, 1442
(1960) (observing that fourth amendment applies to state officials
through fourteenth amendment). Generally, stopping a vehicle and
detaining its occupants constitute a “seizure” within the meaning of
the fourth amendment, even if only for a brief period and for a limited
purpose. Brendlin v. California, 551 U.S. 249, 255, 168 L. Ed. 2d
132, 138-39, 127 S. Ct. 2400, 2406 (2007); Whren v. United States,
517 U.S. 806, 809-10, 135 L. Ed. 2d 89, 95, 116 S. Ct. 1769, 1772
(1996).
The “essential purpose” of the fourth amendment is to impose a
standard of reasonableness upon the exercise of discretion by law
enforcement officers to safeguard the privacy and security of
individuals against arbitrary invasions. Delaware v. Prouse, 440 U.S.
648, 653-54, 59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396 (1979);
accord Pennsylvania v. Mimms, 434 U.S. 106, 109, 54 L. Ed. 2d 331,
335, 98 S. Ct. 330, 332 (1977) (observing that touchstone of fourth
amendment analysis “is always ‘the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s
personal security’ ”), quoting Terry v. Ohio, 392 U.S. 1, 19, 20 L. Ed.
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2d 889, 904, 88 S. Ct. 1868, 1878-79 (1968). Therefore, a vehicle
stop is subject to the requirement of reasonableness in all the
circumstances. Whren, 517 U.S. at 810, 135 L. Ed. 2d at 95, 116 S.
Ct. at 1772.
To enforce the fourth amendment standard of reasonableness, the
United States Supreme Court “has interpreted the Amendment as
establishing rules and presumptions designed to control conduct of
law enforcement officers that may significantly intrude upon privacy
interests.” Illinois v. McArthur, 531 U.S. 326, 330, 148 L. Ed. 2d
838, 847, 121 S. Ct. 946, 949 (2001). “As a general matter, the
decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred.” Whren,
517 U.S. at 810, 135 L. Ed. 2d at 95, 116 S. Ct. at 1772; see People
v. Gonzalez, 204 Ill. 2d 220, 227-28 (2003); Carmichael v. Village of
Palatine, 605 F.3d 451, 456 (7th Cir. 2010) (collecting cases).
However, the United States Supreme Court has made it clear that
there are exceptions to the requirement of probable cause. When faced
with special law enforcement needs, diminished expectations of
privacy, minimal intrusions, or the like, the Court has found that
certain general, or individual, circumstances may render a search or
seizure reasonable based on less than probable cause. See McArthur,
531 U.S. at 330, 148 L. Ed. 2d at 847, 121 S. Ct. at 949 (and cases
cited therein); Carmichael, 605 F.3d at 456 n.4. Thus, the
reasonableness of a particular law enforcement practice is judged by
balancing its promotion of legitimate governmental interests against
its intrusion of fourth amendment interests, i.e., the individual’s right
to personal security free from arbitrary interference by law
enforcement officers. McArthur, 531 U.S. at 331, 148 L. Ed. 2d at
848, 121 S. Ct. at 950; Prouse, 440 U.S. at 654, 59 L. Ed. 2d at 667-
68, 99 S. Ct. at 1396; Gonzalez, 204 Ill. 2d at 225.
However, not every encounter between the police and a private
citizen results in a seizure. Courts have recognized three theoretical
tiers of police-citizen encounters. The first tier involves an arrest of a
citizen, which must be supported by probable cause. People v. Smith,
214 Ill. 2d 338, 352 (2005); People v. Gherna, 203 Ill. 2d 165, 176
(2003). The second tier involves a temporary investigative seizure
conducted pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S. Ct. 1868 (1968). In a “Terry stop,” an officer may conduct a
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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.” Terry, 392 U.S. at 27, 20 L. Ed. 2d at
909, 88 S. Ct. at 1883; Smith, 214 Ill. 2d at 352; Gherna, 203 Ill. 2d
at 177. The third tier of police-citizen encounters involves those
encounters that are consensual. An encounter in this tier involves no
coercion or detention and, therefore, does not implicate any fourth
amendment interests. People v. Luedemann, 222 Ill. 2d 530, 544-45
(2006); Gherna, 203 Ill. 2d at 177.
2. Community Caretaking
In Luedemann, this court noted that several Illinois decisions had
imprecisely referred to the third tier of police-citizen encounters as the
“community caretaking” function. Leudemann, 222 Ill. 2d at 544-45
(citing cases). This court instructed that use of the label “community
caretaking” to describe third-tier consensual encounters is incorrect.
The United States Supreme Court first set forth the community
caretaking exception in Cady v. Dombrowski, 413 U.S. 433, 37 L. Ed.
2d 706, 93 S. Ct. 2523 (1973). The Court explained that local law
enforcement officers “frequently investigate vehicle accidents in which
there is no claim of criminal liability and engage in what, for want of
a better term, may be described as community caretaking functions,
totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.” Cady, 413
U.S. at 441, 37 L. Ed. 2d at 714-15, 93 S. Ct. at 2528. Rather than
describing a tier of police-citizen encounters, community 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. Courts use the term “community caretaking” to
uphold searches or seizures as reasonable under the fourth amendment
when police are performing some function other than investigating the
violation of a criminal statute. Community caretaking describes an
exception to the warrant requirement. Luedemann, 222 Ill. 2d at 545-
46.
This court reasoned that if community caretaking were just
another name for consensual encounters, there would have been no
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need for courts to formulate the exception in the first place. We
explained:
“To be sure, a police officer acting in a community caretaking
function can engage in a consensual encounter. For instance,
if a police officer stops to aid a person whose vehicle has
broken down on the side of the highway and then notices an
open bottle of alcohol in the car, the officer would be both
acting in his community caretaking function and engaging in
a consensual encounter. However, because the act of stopping
to assist a stranded motorist would not have been a seizure in
the first place, a court would have no need to invoke the
community caretaking exception.” Luedemann, 222 Ill. 2d at
548.
We concluded that the community caretaking doctrine “is analytically
distinct from consensual encounters and 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.” (Emphasis added.) Luedemann, 222 Ill. 2d at 548.
The analytical consequence of erroneously describing the third tier
of police-citizen encounters as community caretaking is manifest in the
present case. In its written order granting defendant’s motion to
suppress evidence and quash arrest, the circuit court found as follows:
“In determining whether a community caretaking
encounter with a police officer rises to the level of a Terry
stop, the question is whether, under the circumstances, a
reasonable person would feel free to drive away from the
officer. The officer testified that after pulling in behind
defendant’s vehicle he activated his overhead lights. This court
finds that under said circumstances a reasonable person would
not feel free to pull away.”
In a written order denying the State’s motion to reconsider, the circuit
court elaborated:
“The issue was whether or not this particular stop raised to a
level beyond the motorist assist to a Terry stop in which there
has to be, based upon a reasonable suspicion, that the person
has or is about to commit a crime. If not then the question
becomes whether or not, when the officer approached the
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vehicle, a reasonable man would feel free to leave. In this
situation the court made the specific finding that once the
officer turned the overhead lights on a reasonable man would
not feel free to go, thereby advancing it to a Terry stop and
that there was not sufficient indicia to effectuate a Terry stop
and therefore the court granted the Motion to Suppress.”
Based on past erroneous use of the label community caretaking, the
circuit court’s reasoning is understandable, but is nonetheless
erroneous.
The circuit court incorrectly equated the community caretaking
encounter between Brunnworth and defendant with a third-tier
consensual encounter, which ceased to be consensual when
Brunnworth activated his emergency lights. At that point, according
to the circuit court, the consensual encounter was “raised” to a
second-tier Terry stop, for which Brunnworth admittedly had no
articulable suspicion of criminal activity. However, Luedemann
instructs that the community caretaking doctrine is analytically distinct
from consensual encounters. Therefore, in the present case, either
Brunnworth was engaged in a third-tier consensual encounter with
defendant, in which case the community caretaking doctrine is not
relevant, or Brunnworth seized defendant, in which case the
community caretaking doctrine can be invoked to validate the seizure
as reasonable under the fourth amendment. See Luedemann, 222 Ill.
2d at 548.
In the present case, the circuit court found that Brunnworth, while
engaged in a community caretaking encounter, seized defendant by
activating his emergency lights. 1 We need not and do not decide
whether a police officer’s use of emergency lights, either alone or
combined with other law enforcement techniques, always constitutes
a seizure within the fourth amendment. The State expressly concedes
1
The circuit court also incorrectly defined the test of seizure as whether
“a reasonable person would feel free to drive away from the officer,” or
whether “a reasonable man would feel free to leave.” The correct test in this
context was whether a reasonable innocent person in defendant’s position
would have believed he was free to decline to answer Brunnworth’s question
or otherwise terminate the encounter. See Luedemann, 222 Ill. 2d at 550-51(collecting cases).
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“that defendant was seized” when Brunnworth activated his
emergency lights, “even if he did so for safety reasons.” Justice
Myerscough concluded that although defendant was seized, the
seizure was proper under the community caretaking doctrine. 395 Ill.
App. 3d at 202 (Myerscough, J., specially concurring). We agree.
The challenge of applying the community caretaking doctrine has
been described as follows:
“Most people who appear to be in distress would welcome
a genuine offer of police assistance. But permitting police to
search or seize whenever they might be pursuing community-
caretaking goals risks undermining constitutional protections.
The challenge of [the] community-caretaking doctrine is to
permit helpful police to fulfill their function of assisting the
public, while ensuring that searches for law-enforcement
purposes satisfy the requirements of the Fourth Amendment.”
M. Dimino, Police Paternalism: Community Caretaking,
Assistance Searches, and Fourth Amendment
Reasonableness, 66 Wash. & Lee L. Rev. 1485, 1562-63
(2009).
In Luedemann, this court identified two general criteria a court must
find in determining whether the community caretaker exception
applies. First, law enforcement officers must be performing some
function other than the investigation of a crime. See Cady, 413 U.S.
at 441, 37 L. Ed. 2d at 714-15, 93 S. Ct. at 2528; Luedemann, 222 Ill.
2d at 545-46. In making this determination, a court views the officer’s
actions objectively. See Whren, 517 U.S. at 813, 135 L. Ed. 2d at 98,
116 S. Ct. at 1774 (rejecting “any argument that the constitutional
reasonableness of traffic stops depends on the actual motivations of
the individual officers involved”). Second, the search or seizure must
be reasonable because it was undertaken to protect the safety of the
general public. See Cady, 413 U.S. at 447, 37 L. Ed. 2d at 718, 93 S.
Ct. at 2531. “Reasonableness, in turn, is measured in objective terms
by examining the totality of the circumstances.” Ohio v. Robinette,
519 U.S. 33, 39, 136 L. Ed. 2d 347, 354, 117 S. Ct. 417, 421 (1996).
The court must balance a citizen’s interest in going about his or her
business free from police interference against the public’s interest in
having police officers perform services in addition to strictly law
enforcement. See Luedemann, 222 Ill. 2d at 547 (and cases cited
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therein).
The facts of the present case fall within the fourth amendment
community-caretaker exception, rendering Brunnworth’s assumed
seizure of defendant reasonable. First, the record shows that
defendant’s seizure was unrelated to the investigation of crime.
Defendant’s vehicle was pulled over on the river-side shoulder of a
busy four-lane highway at night. Based on these objective and specific
facts, Brunnworth approached defendant’s vehicle to offer any aid
required under the circumstances. Further, Brunnworth activated his
emergency lights because it was dark and there was, according to his
testimony, a “lot of traffic.”
Second, Brunnworth’s assumed seizure of defendant was
reasonable because it was undertaken to protect public safety. Based
on the objective and specific facts of record, it was reasonable for
Brunnworth to approach defendant’s vehicle to offer any aid required
under the circumstances. The public has a substantial interest in
ensuring that police offer assistance to motorists who may be stranded
on the side of a highway, especially after dark and in areas where
assistance may not be close at hand. See State v. Kramer, 2009 WI
14, ¶42, 315 Wis. 2d 414, 759 N.W.2d 598 (vehicle parked on
shoulder of road at night). In the proper performance of his or her
duties, a law enforcement officer has the right to make a reasonable
investigation of vehicles parked along roadways to offer such
assistance as might be needed and to inquire into the physical
condition of persons in vehicles. The occupant of a parked vehicle
may be intoxicated, suffering from sudden illness, or may be only
asleep. Under these circumstances, it is within a responsible law
enforcement officer’s authority to determine whether assistance is
needed. See, e.g., Kozak v. Commissioner of Public Safety, 359
N.W.2d 625, 628 (Minn. App. 1984) (vehicle parked on highway
shoulder); accord State v. Lovegren, 2002 MT 153, ¶26, 310 Mont.
358, 51 P.3d 471 (vehicle pulled over on shoulder of road at 3 a.m.
with lights off and engine running). Further, it was objectively
reasonable for Brunnworth to activate his emergency lights, not only
for his safety, but also for the safety of defendant and passing traffic.
See, e.g., Kramer, 2009 WI 14, ¶43, 315 Wis. 2d 414, 759 N.W.2d
598; Luedemann, 222 Ill. 2d at 565-66 (rejecting the position that “if
an officer patrolling in the middle of the night sees something about
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a vehicle that appears out of the ordinary, he must walk casually up to
the side window in the dark, with no concern for his own safety and
no illumination, or be held to have committed a seizure”).
We hold that the objective facts of record fall within the
community caretaking exception to the fourth amendment, rendering
Brunnworth’s assumed seizure of defendant reasonable. When
defendant rolled down his window and opened his mouth to speak,
Brunnworth acquired the reasonable suspicion necessary to further
detain and investigate defendant. See Luedemann, 222 Ill. 2d at 543;
People v. Scott, 249 Ill. App. 3d 597, 604 (1993); People v. Kennedy,
144 Ill. App. 3d 4, 6-7 (1986). Since there was no fourth amendment
violation, the exclusionary rule, which is a remedy for a fourth
amendment violation, does not apply in this case. We need not and do
not discuss it. See, e.g., United States v. Ramirez, 523 U.S. 65, 72
n.3, 140 L. Ed. 2d 191, 198 n.3, 118 S. Ct. 992, 997 n.3 (1998)
(having concluded that there was no fourth amendment violation,
Court need not decide exclusionary rule issue); People v. Dancy, 69
Ill. App. 3d 543, 546, 548 (1979) (having determined that defendant’s
arrest and search were lawful, exclusionary rule does not apply).
Accordingly, we uphold the judgment of the appellate court,
which reversed the circuit court’s suppression order and remanded to
the circuit court for further proceedings. In reaching our conclusion,
we are aware that our analysis differs from that of the appellate court
majority, which assumed a fourth amendment violation and
determined the availability of the exclusionary rule. 395 Ill. App. 3d
at 199-201. However, this court is not bound by the appellate court’s
reasoning and may affirm for any basis presented in the record. Tri-G,
Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 258 (2006); In
re Application of the Cook County Treasurer, 185 Ill. 2d 428, 436
(1998).
B. Driver’s License Statutory Summary Suspension
We note defendant’s additional contention regarding the State’s
statutory summary suspension of his driver’s license. On the night of
defendant’s arrest, Brunnworth served defendant with notice of the
statutory summary suspension of his driver’s license based on
defendant’s failure to take a Breathalyzer test. See 625 ILCS
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5/11–501.1 (West 2008). In November 2008, the State suspended
defendant’s driver’s license. Shortly after the circuit court granted his
motion to suppress evidence and quash arrest, defendant filed a
petition for hearing, seeking rescission of the State’s statutory
summary suspension of his driver’s license. See 625 ILCS 5/2–118.1
(West 2008). Pursuant to the granting of defendant’s motion to
suppress evidence and quash arrest, the circuit court entered an order
rescinding the statutory summary suspension. On appeal, the State
assigned error to the circuit court’s rescission order. The appellate
court noted that the circuit court based its rescission order solely on
its order to suppress evidence and quash arrest, which the appellate
court reversed. Accordingly, the appellate court vacated the rescission
order. 395 Ill. App. 3d at 201.
Before this court, defendant contends in his appellant’s brief that
the appellate court erred in vacating the circuit court’s order
rescinding his statutory summary suspension of his driver’s license.
However, defendant failed to include this claim in his petition for leave
to appeal. Rather, defendant’s petition for leave to appeal focused
exclusively on the lower courts’ disposition of his motion to suppress
evidence and quash arrest. Indeed, a careful review of defendant’s
petition for leave to appeal fails to disclose even a reference to the
statutory summary suspension of his driver’s license. Supreme Court
Rule 315(c)(3) (210 Ill. 2d R. 315(c)(3)) requires a petition for leave
to appeal to contain “a statement of the points relied upon in asking
the Supreme Court to review the judgment of the Appellate Court.”
Issues that a party fails to raise in its petition for leave to appeal, even
if raised in the party’s appellant’s brief, are not properly before this
court and are forfeited. City of Naperville v. Watson, 175 Ill. 2d 399,
405-06 (1997); People v. Clark, 119 Ill. 2d 1, 7 (1987). We decline
to override the forfeiture (see In re A.W.J., 197 Ill. 2d 492, 499-500
(2001)), especially in light of our remand to the circuit court, where
defendant may pursue any applicable remedy.
III. CONCLUSION
For the foregoing reasons, the judgment of the appellate court,
remanding the cause to the circuit court for further proceedings, is
affirmed.
Affirmed.
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