People v. Shafer ( 2007 )

NO. 4-06-0243 Filed 4/19/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
RICHARD SHAFER, ) No. 06DT3
Defendant-Appellant. )
) Honorable
) Tim P. Olson,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In January 2006, defendant, Richard Shafer, was ar-
rested for driving under the influence of alcohol (DUI) (625 ILCS
5/11-501(a)(2) (West 2004)). Because defendant refused to take a
breath test, his driving privileges were summarily suspended by
the Secretary of State, pursuant to sections 11-501.1 and 6-
208.1(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11-501.1, 6-
208.1(a)(1) (West 2004)).
In February 2006, defendant filed a petition to rescind
the statutory summary suspension of his driver's license.
Following a March 2006 evidentiary hearing, the trial court
denied defendant's petition.
Defendant appeals, arguing that the trial court erred
by denying his petition because the police officer who arrested
him did not have a reasonable, articulable suspicion to justify a
Terry stop (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.
Ct. 1868 (1968)) of defendant's car. We disagree and affirm.
I. BACKGROUND
At the March 2006 hearing on defendant's petition to
rescind, the only witness to testify was Jacksonville police
officer Jared DeGroot. He testified that he had been a police
officer for three years when he was on patrol by himself at
approximately 1 a.m. on January 6, 2006. Through his police
radio he received information from the police dispatcher that an
employee of Wendy's restaurant had called regarding a person who
"was causing a disturbance and was intoxicated" while ordering
food at the restaurant's drive-thru. DeGroot had no further
information about the person, nor did he know the identity of the
Wendy's employee who had called in the report.
Wendy's has only one location in the Jacksonville area,
and DeGroot responded to that location very quickly after hearing
the call from the dispatcher. He saw a car leaving the Wendy's
parking lot as he arrived.
DeGroot activated his overhead lights and stopped the
car shortly after it left the Wendy's parking lot. Prior to
doing so, he did not observe any traffic violations by the car's
driver (later identified as defendant). The car came to a
complete stop, and defendant waited in the car for DeGroot to
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approach it. As DeGroot did so, he saw a Wendy's bag on the
front seat.
DeGroot informed defendant of the call that the police
had received--"that we believed he caused a disturbance"--and
asked defendant about the matter. DeGroot had difficulty under-
standing defendant and noticed a strong smell of alcohol on
defendant's breath. DeGroot suspected that defendant was intoxi-
cated.
Defendant told DeGroot that he had had a couple of
beers. DeGroot asked defendant for his driver's license and
proof of insurance, and defendant, after a slight delay, com-
plied. DeGroot then arrested defendant for DUI and transported
him to the police station.
After DeGroot completed his testimony, the trial court
heard counsel's arguments. Defendant argued that all the police
had was the anonymous tip of a disturbance with no detail as to
what that entailed. Defendant further argued that the police did
nothing to corroborate the conclusions of the unknown Wendy's
employee that the driver of the car was intoxicated, concluding
that "the law is clear that, absent some corroboration, this stop
was unjustified at its inception."
The State responded that the police had reasonable
suspicion to pull defendant over. The police knew a disturbance
had occurred at Wendy's, and given the circumstances, they did
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not have time to stop to talk to Wendy's employees while someone
who violated the law drove away.
The trial court then engaged in the following dialogue
with defense counsel and ruled as follows:
"THE COURT: So if an employee at
Wendy's at the drive-thru called the cops and
said the guy at the drive-thru just reached,
just robbed me and drove off, you mean the
cop couldn't stop that guy unless he had a
traffic violation first?
[DEFENSE COUNSEL]: No. No, I would
disagree with that, I mean, because that's
reasonable.
THE COURT: I disagree also. The offi-
cer wasn't stopping this guy because of an
alcohol violation. He wasn't stopping for
driving under the influence of alcohol. He
was stopping him because he had a report that
there was a disturbance at Wendy's.
The [c]ourt denies the petition to re-
scind. Court finds that the officer acted
reasonably. That's all we can ask for. And
everything else flowed from the stop based
upon the disturbance, not the intoxication.
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Petition denied."
This appeal followed.
II. ANALYSIS
A. Terry Stops in General
The Supreme Court of Illinois has explained that to
justify a Terry stop, police officers must point to specific,
articulable facts that, when considered with natural inferences,
make the intrusion reasonable. People v. Ledesma, 206 Ill. 2d
571, 583, 795 N.E.2d 253, 262 (2003), overruled on other grounds
by People v. Pitman, 211 Ill. 2d 502, 813 N.E.2d 93 (2004). The
court provided further guidance about Terry stops, as follows:
"We have previously held that a totality-of-
circumstances approach will achieve a fairer
balance between public and private interests.
[Citation.] 'The central issue is ***
whether the information, taken in its total-
ity, and interpreted not by technical legal
rules but by factual and practical common-
sense considerations, would lead a reasonable
and prudent person to believe that the person
stopped had committed an offense.' [Cita-
tion.]" Ledesma, 206 Ill. 2d at 583, 795
N.E.2d at 262.
In State v. Rutzinski, 241 Wis. 2d 729, 738, 623 N.W.2d 516, 521
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(2001), the Supreme Court of Wisconsin similarly emphasized that
when considering a set of facts to determine whether they could
give rise to a reasonable suspicion, courts should apply a
commonsense approach to strike a balance between the interests of
the individual being stopped and the interests of the state in
effectively preventing, detecting, and investigating crimes.
"Reasonable suspicion is a less exacting standard than
probable cause." People v. Ward, 371 Ill. App. 3d 382, 412
(2007). In evaluating whether reasonable suspicion exists, a
court should objectively consider whether the information known
to the officer at the time of the stop "'would warrant a person
of reasonable caution to believe a stop was necessary to investi-
gate the possibility of criminal activity.'" People v. Delaware,
314 Ill. App. 3d 363, 368, 731 N.E.2d 904, 909 (2000), quoting
People v. Walters, 256 Ill. App. 3d 231, 234, 627 N.E.2d 1280,
1283 (1994). In addition, a court "should consider the quality
and content of information known to officers as well as the
reliability of the source of the information." People v.
Lampitok, 207 Ill. 2d 231, 257, 798 N.E.2d 91, 108 (2003).
B. Use of Informants' Tips To Justify Terry Stops
An officer may initiate a Terry stop based on informa-
tion provided by a third party if the information is reliable and
"allows an officer to reasonably infer that a person was involved
in criminal activity." People v. Jackson, 348 Ill. App. 3d 719,
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729, 810 N.E.2d 542, 553 (2004). In In re J.J., 183 Ill. App. 3d
381, 385-86, 539 N.E.2d 764, 766 (1989), the Second District
noted that not all informants' tips should be treated the same
and wrote as follows:
"[T]ips may vary greatly in their value and
reliability and *** one simple rule will not
cover every situation. Where some tips,
completely lacking in indicia of reliability,
would warrant either no police response or
require further investigation before a stop
would be justified, other situations, such as
when a victim of a crime seeks immediate
police aid and describes his assailant or
when a credible informant warns of a specific
impending crime, would justify the police
making an appropriate response."
In evaluating the reliability of a tip, courts may give
greater weight to information provided by an eyewitness or victim
of a crime than they would to information provided by persons who
do not fall into those categories. Jackson, 348 Ill. App. 3d at
730, 810 N.E.2d at 554; see also People v. Brown, 356 Ill. App.
3d 1088, 1090, 828 N.E.2d 351, 354 (2005) ("a description from an
eyewitness is given particularly great weight in determining
whether an officer has a reasonable suspicion to justify a
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stop"). As the Second District explained in Village of Mundelein
v. Thompson, 341 Ill. App. 3d 842, 852, 793 N.E.2d 996, 1004
(2003), a strong inference that a person is a direct witness to
the offense is more indicative of reliability than a weak infer-
ence that the tipster had a source of inside information.
Further, an informant who is a chance witness "is much less
likely to have a malicious hidden agenda than an informant with a
source of inside information." Thompson, 341 Ill. App. 3d at
852, 793 N.E.2d at 1004.
The Supreme Court of New Hampshire in State v. Sousa,
151 N.H. 297, 303-04, 855 A.2d 1284, 1290 (2004), recently
provided a list of factors to be considered when evaluating
whether an anonymous tip gives rise to reasonable suspicion and
wrote as follows:
"First, whether there is a 'sufficient quan-
tity of information' such as the vehicle's
make, model, license plate number, location
and bearing, and 'similar innocent details'
so that the officer may be certain that the
vehicle stopped is the one the tipster iden-
tified. [Citation.] Second, the time inter-
val between the police receiving the tip and
the police locating the suspect vehicle.
[Citation.] Third, whether the tip is based
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upon contemporaneous eyewitness observations.
[Citations.] Fourth, whether the tip is
sufficiently detailed to permit the reason-
able inference that the tipster has actually
witnessed an ongoing motor vehicle offense."
Sousa, 151 N.H. at 303-04, 855 A.2d at 1290.
C. Informants' Tips Made to Police Emergency Numbers
In Ledesma, 206 Ill. 2d at 583, 795 N.E.2d at 262, our
supreme court discussed the use of tips received by telephone as
the basis for a Terry stop and wrote as follows:
"Where an informant's tip is received by
telephone, it may form the basis for a lawful
Terry stop, but the information must bear
some indicia of reliability, and the informa-
tion upon which the police act must establish
the requisite quantum of suspicion."
One factor in evaluating the reliability of telephone
tips is whether the call was made to a police emergency number.
For example, in State v. Golotta, 178 N.J. 205, 219-20, 837 A.2d
359, 367-68 (2003), the Supreme Court of New Jersey explained the
reliability of a 9-1-1 call, as follows:
"[W]e agree with the State that a 9-1-1
call carries a fair degree of reliability
inasmuch as 'it is hard to conceive that a
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person would place himself or herself at risk
of a criminal charge by making such a call.'
The police maintain records of 9-1-1 calls
not only for the purpose of responding to
emergency situations but to investigate false
or intentionally misleading reports. *** On
balance, we are satisfied that in an expand-
ing number of cases[,] the 9-1-1 system pro-
vides the police with enough information so
that users of that system are not truly anon-
ymous even when they fail to identify them-
selves by name.
Accordingly, the State stands on firm
constitutional ground when it treats the
anonymous 9-1-1 caller in the same fashion as
it would an identified citizen informant who
alerts the police to an emergent situation.
*** Analogous to a report offered by a citi-
zen informant, the information imparted by a
9-1-1 caller should not be 'viewed with the
same degree of suspicion that applies to a
tip by a confidential informant.' [Wildoner
v. Borough of Ramsey, 162 N.J. 375, 390, 744
A.2d 1146, 1155 (2000).]"
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In a concurring opinion in Florida v. J.L., 529 U.S.
266, 276, 146 L. Ed. 2d 254, 263-64, 120 S. Ct. 1375, 1381 (2000)
(Kennedy, J., concurring), Justice Kennedy discussed the distinc-
tion between telephone tips that are "truly anonymous" and those
placed to police emergency numbers where the caller's identity
may at some point become known:
"If an informant places his anonymity at
risk, a court can consider this factor in
weighing the reliability of the tip. ***
Instant caller identification is widely
available to police, and, if anonymous tips
are proving unreliable and distracting to
police, squad cars can be sent within seconds
to the location of the telephone used by the
informant. Voice recording of telephone tips
might, in appropriate cases, be used by po-
lice to locate the caller. It is unlawful to
make false reports to the police [citations],
and the ability of the police to trace the
identity of anonymous telephone informants
may be a factor which lends reliability to
what, years earlier, might have been consid-
ered unreliable anonymous tips."
A recent concurring opinion by a Wisconsin Supreme
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Court justice clarified this point, as follows:
"The recorded call and its subsequent
transcript show both the caller's basis of
information and the caller's reliability.
The fact that the police agency either knew
the identity of the caller or had the means
to discover the caller's identity enhances
the caller's credibility. The police were in
a position to go back to their source. If
the information provided had turned out to be
untrue, the police would have been able to
follow up and confront the caller, demand an
explanation, and pursue criminal charges."
State v. Williams, 241 Wis. 2d 631, 670-71,
623 N.W.2d 106, 124 (2001) (Prosser, J.,
concurring).
In People v. Polander, 41 P.3d 698, 702-03 (Colo.
2001), we find further support for viewing informants' tips to
police emergency numbers as having greater indicia of reliability
than anonymous tips. In that case, the Supreme Court of Colorado
decided that a late-night tip from an unnamed Burger King em-
ployee reporting that (1) two vehicles had been parked in the
Burger King parking lot for about 30 minutes and (2) an employee
had observed the occupants passing a marijuana pipe back and
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forth was sufficient to provide articulable suspicion for an
investigatory stop of the occupants of one of the vehicles. In
so concluding, the court noted that "[i]t has long been recog-
nized that assessing the veracity of average citizens who may be
victims or witnesses reporting crime does not pose the same
problem as assessing the veracity of informants from the criminal
milieu." Polander, 41 P.3d at 703. Citing Justice Kennedy's
concurring opinion in J.L., the court further noted that it has
been accepted that someone providing the police with a tip who
identified himself made it possible to determine whether he had
an ulterior motive for reporting, thereby placing himself at some
risk of reprisal or of jeopardy for false reporting. Thus, the
court opined that placing one's anonymity at risk is a factor to
be considered in weighing reliability. Polander, 41 P.3d at 703-
04. The court concluded by reversing the trial court's order
suppressing evidence and statements as the fruit of an illegal
investigatory stop, noting that the Burger King caller in this
case had provided "significant information about both his or her
veracity and basis of knowledge." Polander, 41 P.3d at 704.
D. Lessened Corroboration of Informants' Tips
Concerning Suspected Drunk Drivers
Some courts have concluded that less rigorous corrobo-
ration of tips is needed when the tip concerns a suspected drunk
driver. An intoxicated person behind the wheel of a car presents
an imminent danger to the public that is difficult to thwart by
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means other than a Terry stop. See, for example, United States
v. Wheat, 278 F.3d 722, 732 n.8 (8th Cir. 2001) ("The rationale
for allowing less rigorous corroboration of tips alleging erratic
driving is that the imminent danger present in this context is
substantially greater (and more difficult to thwart by less
intrusive means) than the danger posed by a person in possession
of a concealed handgun"); State v. Tucker, 19 Kan. App. 2d 920,
931, 878 P.2d 855, 864 (1994) ("[t]he risk of danger presented to
the public by a drunken driver is so great that we cannot afford
to impose strict, verifiable conditions on an anonymous tip
before an investigatory stop can be made in response to such a
tip"); State v. Stolte, 991 S.W.2d 336, 343 (Tex. Ct. App. 1999)
(describing the "immediate threat to public safety" caused by
drunk drivers in upholding an investigative stop based on infor-
mation provided by an informant's tip).
In Rutzinski, the Supreme Court of Wisconsin explained
that no blanket rule exists excepting tips alleging drunk driving
from normal reliability requirements. Nonetheless, that court
acknowledged the Supreme Court's caveat that "'extraordinary
dangers sometimes justify [extraordinary] precautions.'"
Rutzinski, 241 Wis. 2d at 751, 623 N.W.2d at 527, quoting J.L.,
529 U.S. at 272, 146 L. Ed. 2d at 261, 120 S. Ct. at 1379. The
Rutzinski court accordingly rejected the defendant's argument
that the arresting officer should have waited until he personally
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observed signs that the defendant may have been intoxicated
before initiating the traffic stop. Noting that in 1999, the
United States suffered 15,786 fatalities in alcohol-related
traffic accidents, "an average of 1 fatality every 33 minutes,"
the Rutzinski court quoted approvingly from the Vermont Supreme
Court in State v. Boyea, 765 A.2d 862, 867 (Vt. 2000), as fol-
lows:
"'In contrast to the report of an indi-
vidual in possession of a gun [as in J.L.],
an anonymous report of an erratic or drunk
driver on the highway presents a qualita-
tively different level of danger, and concom-
itantly greater urgency for prompt action.
In the case of a concealed gun, the posses-
sion itself might be legal, and the police
could, in any event, surreptitiously observe
the individual for a reasonable period of
time without running the risk of death or
injury with every passing moment. An officer
in pursuit of a reportedly drunk driver on a
freeway does not enjoy such a luxury. In-
deed, a drunk driver is not at all unlike a
"bomb," and a mobile one at that.'"
Rutzinski, 241 Wis. 2d at 749, 623 N.W.2d at
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526.
The Supreme Court of New Jersey in Golotta expressed
similar concerns when it wrote that a factor warranting a reduced
degree of corroboration is the reality that intoxicated drivers
pose a significant risk to themselves and to the public.
Golotta, 178 N.J. at 221, 837 A.2d at 368. Reaffirming its
earlier description of such drivers as "'moving time bombs'" (see
State v. Tischio, 107 N.J. 504, 519, 527 A.2d 388, 396 (1987)),
the Golotta court wrote the following:
"Because the Constitution 'is not a
suicide pact' [citation], it permits courts
to consider exigency and public safety when
evaluating the reasonableness of police con-
duct. *** The risk to life and safety posed
by an intoxicated or erratic driver convinces
us that it is reasonable and, therefore,
constitutional for the police to act on in-
formation furnished by an anonymous 9-1-1
caller without the level of corroboration
that traditionally would be necessary to
uphold such action." Golotta, 178 N.J. at
221, 837 A.2d at 368-69.
Because we agree with the holdings and analyses of the
aforementioned cases, we hold that informants' tips regarding
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possible incidents of drunk driving require less rigorous corrob-
oration than tips concerning matters presenting less imminent
danger to the public.
E. The Terry Stop in This Case
Defendant argues that the trial court erred by denying
his petition to rescind the statutory summary suspension because
DeGroot did not have a reasonable, articulable suspicion to
justify a Terry stop of defendant's car. Specifically, he
contends that (1) the statement of the Wendy's employee that
DeGroot heard from dispatch did not bear sufficient indicia of
reliability to establish the requisite quantum of suspicion and
(2) DeGroot acted solely upon a conclusory and uncorroborated
opinion of an unknown Wendy's employee that an intoxicated patron
at the restaurant's drive-thru was causing a disturbance. For
the following reasons, we disagree.
1. Standard of Review
Generally, this court will not disturb a trial court's
decision to deny a petition to rescind statutory summary suspen-
sion unless that decision was against the manifest weight of the
evidence. People v. Rozela, 345 Ill. App. 3d 217, 222, 802
N.E.2d 372, 376 (2003). However, because the trial court's
ruling in this case did not involve a determination of witness
credibility, this court will review it de novo. De novo review
is appropriate when neither facts nor credibility of witnesses is
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questioned. Ledesma, 206 Ill. 2d at 576, 795 N.E.2d at 258.
2. Defendant's Claim That the Tip Was Unreliable
Defendant first contends that the statement of the
Wendy's employee that DeGroot heard from dispatch did not bear
sufficient indicia of reliability to establish the requisite
quantum of suspicion. We disagree.
Initially, we disagree with defendant's characteriza-
tion of the Wendy's employee as an "anonymous" informant. The
Jacksonville police knew that the call they had received at 1
a.m. came from the only Wendy's restaurant in the Jacksonville
area. The caller identified him or herself as an employee of
Wendy's. We agree with the decisions earlier cited that an
emergency call to police should not be viewed as an "anonymous"
tip or with the skepticism applied to tips provided by confiden-
tial informants. See, for example, Golotta, 178 N.J. at 219, 837
A.2d at 367 (noting that calls to police emergency lines provide
the police with enough information so that such callers are not
truly anonymous).
Further, using the set of factors set forth in Sousa,
151 N.H. at 303-04, 855 A.2d at 1290, we conclude that the tip in
this case was reliable. First, the timing of the tip provided
DeGroot with sufficient basis for believing that the car he was
stopping shortly after it pulled out of the Wendy's parking lot
was the one the tipster had called about. We note that defendant
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does not argue that any other cars were in the parking lot or
that DeGroot may have followed the wrong car. Second, the time
interval between DeGroot's receiving the tip and his locating the
suspect car could hardly be smaller. Third, the tip clearly was
based upon contemporaneous eyewitness observations by the Wendy's
employee at the drive-thru window. And fourth, the tip was
sufficiently detailed to permit a reasonable inference that the
tipster had actually witnessed what he or she described--namely,
that defendant had created a disturbance and was intoxicated at
the drive-thru window.
On this latter point, we note that transactions at
restaurant drive-thru windows occur between individuals in close
enough proximity that a hand-to-hand exchange of food and money
is made. The record is silent as to just what defendant did
during this transaction that caused the Wendy's employee enough
concern to call the Jacksonville police, but the closeness of the
quarters between the employee and defendant supports the reli-
ability of the employee's observations. That is, the employee
would clearly be in a position to determine, both from defen-
dant's speech and odor, that he was intoxicated. Further,
defendant's "creating a disturbance" during the transaction would
serve to corroborate the employee's other views about defendant's
intoxication.
3. Defendant's Claim That DeGroot Acted Solely
Upon a Conclusory and Uncorroborated Opinion
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Defendant also contends that the Wendy's employee who
called the Jacksonville police "provided no specific information
describing the disturbance allegedly caused by the customer, nor
did the caller factually support his or her opinion that the
customer was intoxicated." Defendant thus asserts that DeGroot's
decision to stop defendant's car was based on nothing more than a
hunch. For the reasons we have already set forth in rejecting
defendant's contention that the tip was unreliable, we disagree.
Also, as previously stated, informants' tips regarding possible
incidents of drunk driving require less rigorous corroboration.
We thus conclude that the telephone tip provided
DeGroot with the requisite quantum of suspicion to justify the
Terry stop of defendant's car. Accordingly, we further conclude
that the trial court did not err by denying defendant's petition
to rescind the statutory summary suspension.
In so concluding, we reject defendant's claim that
DeGroot should have followed defendant's car until he observed
evidence of impaired driving. As earlier discussed, DUI is
sufficiently dangerous to the public that it would have been
irresponsible for DeGroot, having received the tip, to simply
follow defendant's car and wait for potentially catastrophic
results to occur.
4. The Reasons Why DeGroot Stopped Defendant's Car
The record contains no explicit statement by DeGroot
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that he stopped defendant's car because he feared defendant was
driving drunk, based upon the information called in by the
Wendy's employee. Had DeGroot been asked, he might even have
testified that he stopped defendant's car was because he believed
that defendant had caused a disturbance at the drive-thru window,
not because of any concern that defendant was a possible drunk
driver. None of that matters. Nor does it matter that the trial
court indicated that it believed DeGroot stopped defendant's car
"based upon the [reported] disturbance, not the intoxication."
The United States Supreme Court in Devenpeck v. Alford,
543 U.S. 146, 153, 160 L. Ed. 2d 537, 545, 125 S. Ct. 588, 593-94
(2004), recently reiterated
"that an arresting officer's state of mind
(except for the facts that he knows) is ir-
relevant to the existence of probable cause.
[Citations.] That is to say, his subjective
reason for making the arrest need not be the
criminal offense as to which the known facts
provide probable cause."
The Court noted that "'evenhanded law enforcement is best
achieved by the application of objective standards of conduct,
rather than standards that depend upon the subjective state of
mind of the officer.'" Devenpeck, 543 U.S. at 153, 160 L. Ed. 2d
at 545, 125 S. Ct. at 593-94, quoting Horton v. California, 496
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U.S. 128, 138, 110 L. Ed. 2d 112, 124, 110 S. Ct. 2301, 2308-09
(1990).
Although the issue in Devenpeck was whether probable
cause existed, we see no reason why the Court's analysis should
not also apply to the issue in this case--namely, whether the
officer had a reasonable, articulable suspicion to justify a
Terry stop.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
APPLETON and COOK, JJ., concur.
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