People v. Wear

NO. 4-06-0353 Filed 1/19/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Greene County
ROBERT W. WEAR ) No. 06DT1
Defendant-Appellee. )
) Honorable
) James W. Day,
) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
Defendant, Robert W. Wear, moved for reconsideration of
an order in which the trial court denied his motion to rescind
the summary suspension of his driver's license and his motion to
suppress evidence and quash his arrest for driving under the
influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2004)).
The court granted the motion for reconsideration, and the State
appeals.
Because the State nol-prossed the DUI case after the
granting of the motion for reconsideration, we dismiss the
portion of this appeal pertaining to the suppression of evidence
and quashing of the arrest (an interlocutory ruling that vanished
with the criminal case). As for the rescission of the summary
suspension, case law deems that ruling to have occurred in a
civil proceeding separate and distinct from the DUI case; there-
fore, the nolle prosequi had no effect on that ruling, which is
appealable as a final judgment. In reliance on the doctrine of
hot pursuit, we reverse the trial court’s rescission of the
summary suspension of defendant’s driver license.
I. BACKGROUND
The charging instrument was a citation and complaint,
i.e., a traffic ticket, alleging that defendant committed the DUI
in White Hall on January 2, 2006, at 12:52 a.m. On that date,
the arresting police officer, Christopher Dawdy, served upon
defendant a notice of the summary suspension of his driver's
license for refusing to submit to a chemical test. See 625 ILCS
5/11-501.1(f) (West 2004). The DUI case was docketed as People
v. Wear, case No. 06-DT-1. A receipt shows that on January 3,
2006, defendant posted bond in the amount of $100.
On January 20, 2006, defendant filed a motion to
rescind the summary suspension. The grounds of the motion were
twofold: (1) he "was not properly placed under arrest for
[DUI,]" and (2) Dawdy lacked reasonable grounds to believe he had
been driving, or in actual physical control of, a motor vehicle
on a public highway while under the influence of alcohol or
drugs.
On January 24, 2006, defendant filed a motion to
suppress evidence and quash his arrest on the following grounds:
"6. The arrest herein occurred as a
result of a warrantless, nonconsensual entry
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into the residence at 303 Fulton Street,
White Hall, Illinois[,] by the arresting
officer, without probable cause to arrest and
without the presence of any circumstances to
excuse the requirement of probable cause or a
warrant to enter the residence ***.
7. As a result of the arresting offi-
cer's unlawful, warrantless entry into the
residence, the officer made certain observa-
tions of the [d]efendant and had certain
conversations with the [d]efendant inside the
residence, and subsequently outside the resi-
dence, which the defendant anticipates will
be used against him at trial."
On February 10 and 17, 2006, the trial court held an
evidentiary hearing on defendant’s two motions. Defendant called
Dawdy, who testified that on January 2, 2006, at 12:52 a.m., he
was driving his squad car west on West Lincoln Street, where the
speed limit was 30 miles per hour, when an eastbound white
Cadillac traveling fast--"at least 40 [miles per hour]"--swerved
toward him, forcing him to pull off to the shoulder of the street
to avert a head-on collision. Dawdy turned around and pursued
the Cadillac, which crossed Main Street and continued east on
East Lincoln Street, still swerving from side to side. When the
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Cadillac turned south onto Bates Avenue without using a turn
signal, Dawdy (by then, no more than a car’s length behind)
turned on the flashing red and blue lights on the roof of his
squad car. He followed the Cadillac five or six more blocks.
Bates Avenue became Israel Street. Continuing south down Israel
Street, the Cadillac coasted through an intersection, disobeying
a stop sign. It stopped at the next stop sign and turned east
onto East Carlinville Street. Then it turned into the driveway
of a house at the intersection of East Carlinville and Fulton
Streets. Dawdy pulled in behind the Cadillac and got out of his
squad car at the same time defendant got out of the Cadillac.
Dawdy testified that he ordered defendant to get back
into the car but defendant ignored him and began walking toward
the house, staggering, swaying, and crossing his feet. Dawdy
followed him to the house, ordering him over and over again to
get back in his car, but defendant kept on walking without so
much as acknowledging Dawdy’s presence. A woman opened the door
of the house and asked what was going on. "I told her that I had
been following [defendant] down Bates [Avenue] with my lights
on[] and he wouldn’t pull over." Defendant stepped into the
threshold, stood beside the woman, and, for the first time, spoke
to Dawdy, who was standing less than a foot away, on the porch:
defendant told him, "['I] made it home.[']" Dawdy smelled
alcohol on his breath. Defendant then retreated into the house,
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and without asking for permission, Dawdy followed him inside,
demanding his identification--a demand that defendant refused
because, as he insisted, he had "made it home." Dawdy asked
defendant where he had come from; "Hillview Tavern," defendant
replied. Dawdy twice asked him to come outside and take a field
sobriety test; he refused. "[Defendant] stated to me that he
didn’t want to do field sobriety, that he’s done it in the past
and it hasn’t helped him." At that point, Dawdy decided to place
defendant under arrest. He handcuffed him and took him outside.
In the squad car, Dawdy asked him to take a preliminary breath
test; defendant refused. Dawdy took him to the Greene County
sheriff’s department, which had an officer certified to adminis-
ter a Breathalyzer test. Warned by Dawdy of the consequence of
refusal, defendant refused to take a Breathalyzer test, resulting
in the summary suspension of his driver’s license for six months.
Defendant also called the woman who tended bar at
Hillview Tavern the evening of January 1, 2006, as well as two of
the men with whom he played billiards there that evening.
According to them, defendant did not appear to be drunk while he
was in their presence from 8:30 to 11:30 p.m., and his speech and
balance were unimpaired.
Patricia Foiles testified that the house on Fulton
Street was her residence and defendant was her boyfriend. When
he pulled into her driveway after midnight on January 2, 2006,
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she was expecting him to stay overnight, as he customarily did.
In her opinion, he displayed no symptoms of intoxication; he was
walking and talking just fine.
Defendant testified he remembered drinking only three
beers during his three-hour stay at the tavern, and he knew his
faculties were unimpaired because, at the pool table, he was at
the top of his game. He denied drinking before he went to the
tavern or after he left. He was weaving on the road not because
of intoxication but to avoid potholes and manhole covers, which
might have damaged his old and fragile Cadillac. The Cadillac
had a narrow rear window, and the first time he noticed the
flashing lights of a squad car behind him was at the intersection
of Israel Street and East Carlinville Street. Because (to his
knowledge) he had done nothing wrong, he assumed the squad car
was on some errand other than pulling him over. When he turned
onto East Carlinville Street, he expected the squad car to keep
going. His girlfriend’s house was only "a short block" away from
that intersection. He was unaware the squad car pulled into the
driveway behind him. In fact, he was oblivious to Dawdy’s
presence until he entered the house and, sensing someone behind
him, turned around and saw him standing there. He admitted
refusing to take a Breathalyzer test.
Initially, on February 24, 2006, the trial court denied
the motions to rescind the summary suspension and to suppress
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evidence and quash the arrest. Believing Dawdy’s testimony over
defendant’s, the court found that "the arrest [of defendant]
commenced in a public place" and that under United States v.
Santana, 427 U.S. 38, 42-43, 49 L. Ed. 2d 300, 305, 96 S. Ct.
2406, 2409 (1976), he "could not thwart his lawful arrest by
retreating into his girlfriend's residence."
On March 2, 2006, defendant filed a motion to recon-
sider both rulings. He pointed out that according to Dawdy's own
testimony, Dawdy did not form an intent to arrest defendant until
after he followed defendant into the house; thus, the arrest was
not "set in motion in a public place" (Santana, 427 U.S. at 43,
49 L. Ed. 2d at 306, 96 S. Ct. at 2410). For that reason,
defendant argued, Santana was inapplicable. The court evidently
agreed with this argument, for on April 5, 2006, it made the
following docket entry: "After considering the arguments of
counsel at the hearing on the [m]otion to [r]econsider, the court
grants the [m]otion to [r]econsider [its] [r]uling. Petition to
[r]escind [s]tatutory [s]ummary [s]uspension is granted[,] and
the [m]otion to [q]uash [a]rrest is granted."
When the trial court granted defendant's motion for
reconsideration, the circuit clerk completed and signed a notice
to the Secretary of State, as required by section 2-118.1 of the
Illinois Vehicle Code (625 ILCS 5/2-118.1 (West 2004)). The form
states that "[u]pon the conclusion of the hearing, the [c]ircuit
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[c]ourt found in favor of [defendant]" and rescinded the summary
suspension of driving privileges because "[n]o [r]easonable
[g]rounds" existed for the suspension.
On April 10, 2006, the trial court held a previously
scheduled pretrial hearing in case Nos. 06-DT-1 and 06-TR-9. (In
the latter case, defendant was charged with failing to use a turn
signal.) The transcript of the hearing consists of one page,
which we quote in full:
"THE COURT: What do you have next, Mr.
Goetten [(State's Attorney)]?
MR. GOETTEN: Judge, this is People of
the State of Illinois vs. Robert Wear, [case]
No[s]. 06-DT-1[] [and] 06-TR-9. Your Honor,
you had previously--I believe last week, had
ruled on the [m]otion to [r]econsider in the
[d]efendant's favor. I guess we're here
today to dispose of the matter. I didn't
know, and I'm not sure if Mr. Turpin [(de-
fense counsel)] knows[:] [W]as that as to
[case No.] 06-DT-1 for sure[?] [Case] No.
06-TR-9 was also part of defendant's motion.
THE COURT: No, it was only on [case
No.] 06-DT-1. The court sees no reason to
suppress any evidence on the turn[-]signal
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charge.
MR. TURPIN: Okay.
MR. GOETTEN: Judge, I believe it's the
defendant's intent just to plead guilty
to--[o]h, I'm sorry. I believe it's the
defendant's intent just to plea[d] guilty to
that improper turn signal and pay the $75
over the counter, Judge.
MR. TURPIN: That is correct, [Y]our
Honor.
THE COURT: That's fine.
(Defendant signs plea of guilty [(presumably,
on the back of the traffic ticket in case No.
06-TR-9).])"
Using a preprinted form, the trial court wrote the
following order (we indicate the filled-in blanks with underlin-
ing):
"CAUSE CALLED FOR:
* * *
X Pretrial Conference.
X Negotiated [p]lea presented and ap-
proved ([s]ee Sentencing)[.] Written plea of
guilty filed.
***
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X Other. [Case No.] 06[-]DT[-]1--arrest
previously quashed--Defendant guilty to [case
No.] 06[-]TR[-]9.
***
X Sentencing. ***
Defendant sentenced to
*** X Fine $75 incl[uding]*** costs.
***
X Other: Bond to apply."
Also on April 10, 2006, the trial court made the
following docket entry: "Cause called for hearing. Defendant
present in person and by Attorney Turpin. Arrest quashed in
[case No.] 06-DT-1. Cause stricken. Defendant enters plea of
guilty to [the charge in case No.] 06-TR-9. Defendant fined
$75.00 total. Bond to apply. Notice given to [d]efendant,
State's Attorney[,] and Attorney Turpin in open court."
On the reverse side of the traffic ticket in case No.
06-DT-1, under the heading "Court Action and Other Orders" and
the subheading "Findings," the circuit clerk placed an X in the
box corresponding to "[n]olle [p]rosequi"; signed the line
reserved for his signature; and, above the words "Date Order
Entered," wrote April 10, 2006.
On April 27, 2006, the State appealed from the order of
April 5, 2006, in which the trial court granted defendant's
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motion to reconsider its rulings on the petition to rescind the
summary suspension and the motion to suppress evidence and quash
the arrest. This is the appeal before us. On July 27, 2006, the
State filed a certificate of impairment.
II. ANALYSIS
A. Defendant's Motion To Dismiss This Appeal
1. The DUI Case
In People v. Zeigler, 106 Ill. App. 3d 783, 784, 436
N.E.2d 722, 723 (1982), the Second District held that after
nol-prossing a case, the State could not appeal from an earlier
order granting a motion for suppression of evidence therein,
unless the State also appealed from the nolle-prosequi order or
from an order denying a motion to vacate the nolle prosequi. See
also People v. Wolsk, 118 Ill. App. 3d 112, 115, 454 N.E.2d 695,
698 (1983). Defendant argues we should dismiss this appeal
because while the State appeals from the interlocutory order of
April 5, 2006, granting his motion for reconsideration, the State
does not appeal from the nolle-prosequi order; nor did the State
move to vacate that order.
The State does not disagree with Zeigler's holding.
Instead, it disputes the existence of the nolle prosequi in this
case. At page C-3 of the appendix to his motion to dismiss this
appeal, defendant includes a copy of the reverse side of the
traffic ticket, wherein the circuit court certified that the
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State had nol-prossed the DUI case. In its "Objection to Defen-
dant's Motion To Dismiss," the State submits an affidavit by the
circuit clerk, V. "Tunie" Brannan, stating as follows:
"2. In my capacity as [c]ircuit
[c]lerk[,] I am required to maintain the
records of the court.
3. [A]s a matter of record[-]keeping[,]
each case is required to have a disposition.
4. [O]n April 5, 2006, a docket entry
was entered by the Honorable James W. Day
quashing the arrest and suppressing evidence
in [case No.] 06-DT-1.
5. [M]y understanding of the result of
the quashing of the arrest in [case No.]
06-DT-1 was that [the] same was dismissed by
the court. As a result of that entry[,] I,
V. 'Tunie' Brannan, marked the X by [']Nolle
Prosequi['] (see [e]xhibit [No.] C-3 of the
[a]ppellee's [m]otion to [d]ismiss [the]
[a]ppeal) for the purpose of maintaining
records in my office.
6. [A]t no time did I consult with the
State's Attorney or the [j]udge in making a
determination on this form, [e]xhibit [No.]
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C-3 of the [a]ppellee's [m]otion to [d]ismiss
[the] [a]ppeal, since this form was for the
purpose of record[-]keeping in my office.
7. *** Exhibit [No.] C-3 of the
[a]ppellee's [m]otion to [d]ismiss [the]
[a]ppeal is not an official court ruling or
official court disposition in this matter."
We note that June 2, 2006, the circuit clerk certified the
record--including the complaint and citation, which are listed in
a table of contents prepared by the circuit clerk.
Illinois Supreme Court Rule 612(g) provides that
"insofar as appropriate," Rule 329 (Official Reports Advance
Sheet No. 22 (October 26, 2005), R. 329, eff. January 1, 2006)
shall "apply to criminal appeals." 177 Ill. 2d R. 612(g). Rule
329 provides as follows:
"The record on appeal shall be taken as
true and correct unless shown to be otherwise
and corrected in a manner permitted by this
rule. Material omissions or inaccuracies or
improper authentication may be corrected by
stipulation of the parties or by the trial
court, either before or after the record is
transmitted to the reviewing court, or by the
reviewing court or a judge thereof. Any
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controversy as to whether the record accu-
rately discloses what occurred in the trial
court shall be submitted to and settled by
that court and the record made to conform to
the truth. If the record is insufficient to
present fully and fairly the questions in-
volved, the requisite portions may be sup-
plied at the cost of the appellant. If nec-
essary, a supplemental record may be certi-
fied and transmitted. The clerk of the cir-
cuit court shall prepare a bound and certi-
fied supplemental record which shall be filed
in the reviewing court upon order issued
pursuant to motion." (Emphasis omitted.)
Official Reports Advance Sheet No. 22 (Octo-
ber 26, 2005), R. 329, eff. January 1, 2006.
Traditionally, "[t]he action of the court [could] be
shown only by the record kept by the clerk. This record [could
not] be impeached by the clerk himself, by the recollection of
the judge, or his want of recollection as alleged in this case,
or by any other evidence." People ex rel. Pirola v. Lyle, 329
Ill. 418, 421, 160 N.E. 742, 743 (1928). As interpreted by the
courts, Rule 329 modified that common-law rule to the extent of
allowing affidavits to supply omissions in the record. Paschen
- 14 -
Contractors v. Illinois State Toll Highway Authority, 225 Ill.
App. 3d 930, 935, 590 N.E.2d 539, 542-43 (1992); People v.
Miller, 190 Ill. App. 3d 981, 989, 548 N.E.2d 1, 6 (1989). In
People v. Chitwood, 67 Ill. 2d 443, 448, 367 N.E.2d 1331, 1333
(1977), for example, the defendant told the trial court that he
waived a jury and wished to have a bench trial--but "the waiver
was inadvertently omitted from the record." Rule 329 allowed the
State to amend the record with an affidavit that on a certain
date, in open court, the defendant waived a jury. Chitwood, 67
Ill. 2d at 448, 367 N.E.2d at 1333.
The common-law rule remains in full force, however,
when it comes to contradicting the contents of the record.
Paschen Contractors, 225 Ill. App. 3d at 935, 590 N.E.2d at 542;
People v. Sims, 244 Ill. App. 3d 966, 972-73, 612 N.E.2d 1011,
1019 (1993). Rule 329 contemplates correcting "inaccuracies" in
the record (Official Reports Advance Sheet No. 22 (October 26,
2005), R. 329, eff. January 1, 2006), but one can do so only by
reference to some other part of the record (Hartgraves v. Don
Cartage Co., 63 Ill. 2d 425, 428, 348 N.E.2d 457, 458-59 (1976)).
The supreme court has held:
"Nunc pro tunc orders must be based upon
definite and precise evidence in the record.
[Citation.] The certainty of evidence must be
assured without reliance upon the memory of
- 15 -
the judge or any other person, and a nunc pro
tunc order cannot be based upon ex parte
affidavits or testimony." Beck v. Stepp, 144
Ill. 2d 232, 239, 579 N.E.2d 824, 827 (1991).
In Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458,
for example, during a trial, one of the 12 jurors sustained an
injury and, as a consequence, could no longer serve on the jury.
After an off-the-record discussion in chambers, the defendant's
attorney moved, in open court, for a mistrial; the trial court
denied the motion. Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at
458. The trial resumed, and the remaining 11 jurors returned a
verdict for the plaintiff. Hartgraves, 63 Ill. 2d at 427-28, 348
N.E.2d at 458. The defendant's attorney filed a posttrial
motion, in which he raised the denial of his motion for a mis-
trial. Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458. In
opposition to the posttrial motion, the plaintiff's attorney
filed an affidavit to the effect that during the in-chambers
discussion, the defendant's attorney stated he would formally
object, on the record, to proceeding with less than 12 jurors but
the judge should overrule the objection because--off the re-
cord--he was willing to proceed with the trial. Hartgraves, 63
Ill. 2d at 427-28, 348 N.E.2d at 458. The defendant's attorney
filed a counteraffidavit denying he said any such thing.
Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458. The judge
- 16 -
stated he had a clear recollection of the in-chambers discussion
and the defense counsel had indeed urged him to overrule the
motion for a mistrial because he was willing to proceed without
the twelfth juror. Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at
458. Accordingly, the court denied the posttrial motion.
Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458.
The defendant appealed, the appellate court reversed
and remanded, and the supreme court affirmed the appellate court.
Hartgraves, 63 Ill. 2d at 427, 348 N.E.2d at 458. The supreme
court held: "[A]ny corrections of or additions to the record
which contradict the clear and unambiguous contents of the record
must be supported by something other than the 'clear memory' of
the trial judge." (Emphasis added.) Hartgraves, 63 Ill. 2d at
432, 348 N.E.2d at 461. That "something other" must be "'some
note or memorandum from the record or quasi records of the court,
or by the judge's minutes, or by the papers in file in the
cause.'" Hartgraves, 63 Ill. 2d at 428, 348 N.E.2d at 458,
quoting Pinkstaff v. Pennsylvania R.R. Co., 20 Ill. 2d 193, 202,
170 N.E.2d 139, 144 (1960).
In his affidavit, the Greene County circuit clerk
claims that the disposition on the back of the citation and
complaint in case No. 06-DT-1 "is not an official court ruling or
official court disposition in this matter." We disagree.
Illinois Supreme Court Rule 552 provides: "A final disposition
- 17 -
noted on the reverse side of the 'Complaint' shall be evidence of
the judgment in the case." Official Reports Advance Sheet No. 22
(October 30, 2002), R. 552, eff. September 30, 2002. The back of
the traffic ticket says the case was nol-prossed on April 10,
2006. In a hearing on that date, the State's Attorney told the
trial court: "I guess we're here today to dispose of the mat-
ter." The docket entry for April 10, 2006, says "[c]ause
stricken"--and that the State's Attorney was given "[n]otice" of
this disposition "in open court." The State's Attorney never
moved to vacate the nolle prosequi and never suggested to the
trial court that it misunderstood his intent. Instead, on the
strength of the circuit clerk's affidavit, the State now contends
that--contrary to the "Court Action" in the traffic ticket; and
contrary to the docket entry for April 10, 2006; and contrary to
the State's Attorney's request to "dispose of the matter"--the
case was, in fact, not nol-prossed. This is an impeachment of
the record, not the supplying of an omission. We find that this
case fits within the rule of Hartgraves rather than Chitwood.
The circuit clerk's affidavit is inadmissible, and we deny the
State's motion to add it to the record. Defendant has moved to
dismiss this appeal, and, on the authority of Zeigler, we grant
the motion in part: we dismiss this appeal insomuch as it
challenges the suppression of evidence and quashing of the
arrest, which were an interlocutory ruling in the nol-prossed
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criminal case.
2. The Summary Suspension
The order from which the State appeals awarded defen-
dant two forms of relief: (1) it suppressed evidence and quashed
the arrest in case No. 06-DT-1, and (2) it rescinded the statu-
tory summary suspension of defendant's driver's license. The
first form of relief is moot; the second still presents a live
issue. "[S]tatutory summary suspension hearings are civil in
nature and, thus, *** are separate and distinct from a criminal
action for DUI." People v. O'Connor, 313 Ill. App. 3d 134, 136,
728 N.E.2d 1175, 1177 (2000). For that reason, "[t]he dismissal
of a criminal charge does not result in an automatic rescission
of the suspension." (Emphasis in original.) People v. Schaefer,
154 Ill. 2d 250, 257-58, 609 N.E.2d 329, 332 (1993).
Defendant argues that the appeal from the rescission of
the summary suspension "should [also] be dismissed because it is
a violation of the plea agreement," under which the State agreed
to dismiss case No. 06-DT-1. As we have explained, the dismissal
of the DUI charge in case No. 06-DT-1 had no effect on the
summary suspension, which was a separate civil proceeding.
Therefore, an agreement to dismiss the DUI charge would not
reasonably imply a rescission of the statutory suspension. "If
disputed, the terms of the [plea] agreement are to be judged
under objective standards" (People v. Navarroli, 121 Ill. 2d 516,
- 19 -
521, 521 N.E.2d 891, 893 (1988)), not by a party's subjective
expectations (People v. Umfleet, 190 Ill. App. 3d 804, 811, 546
N.E.2d 1013, 1018 (1989)). The record appears to contain no
objective evidence that the State agreed to the rescission of the
summary suspension.
Whether the State agreed to the dismissal of the DUI
charge in return for defendant's guilty plea and payment of the
fine in case No. 06-TR-9 (as opposed to unilaterally nol-prossing
the DUI charge) would be a question for the trial court to
resolve should the State refile the DUI charge. See Navarroli,
121 Ill. 2d at 521-22, 521 N.E.2d at 893 (existence of a plea
agreement and its terms and conditions are questions of fact
which the trier of fact must determine; on appeal, we ask whether
the determination is against the manifest weight of the evi-
dence). For our purposes, suffice it to say the State
nol-prossed case No. 06-DT-1 (but not, thereby, the
already-concluded civil proceeding for summary suspension).
B. The Merits of the Rescission of the Summary Suspension
1. The Applicability of the Exclusionary Rule to
This Civil Proceeding
In criminal cases, courts suppress evidence obtained as
a result of an unreasonable search or seizure, provided that the
causal link between the evidence and the unreasonable search or
seizure is not too attenuated. People v. Pettis, 184 Ill. App.
3d 743, 751-52, 540 N.E.2d 1097, 1103 (1989), citing Wong Sun v.
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United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S.
Ct. 407, 416-17 (1963); Immigration & Naturalization Service v.
Lopez-Mendoza, 468 U.S. 1032, 1040-41, 82 L. Ed. 2d 778, 787, 104
S. Ct. 3479, 3484 (1984). "The reach of the exclusionary rule
beyond the context of criminal prosecution, however, is less
clear." Lopez-Mendoza, 468 U.S. at 1041, 82 L. Ed. 2d at 787,
104 S. Ct. at 3484. Summary-suspension proceedings are, as we
have explained, "civil in nature" and "are separate and distinct
from a criminal action for DUI." O'Connor, 313 Ill. App. 3d at
136, 728 N.E.2d at 1177. When deciding whether the exclusionary
rule applies to a given civil case, the court must "weigh the
likely social benefits of excluding unlawfully seized evidence
against the likely costs." Lopez-Mendoza, 468 U.S. at 1041, 82
L. Ed. 2d at 787, 104 S. Ct. at 3484.
In the present case, neither party questions the
applicability of the exclusionary rule to a summary-suspension
proceeding. See People v. Krueger, 208 Ill. App. 3d 897, 903-04,
567 N.E.2d 717, 721 (1991) (implying a requirement into section
2-118(b) of the Illinois Vehicle Code (625 ILCS 5/2-118.1(b)
(West 2004)) that the arrest be lawful is necessary to save the
statute from unconstitutionality). Therefore, we will proceed
under the assumption that if Dawdy's warrantless, nonconsensual
entry into Foiles's house was unreasonable, the summary suspen-
sion cannot stand.
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2. Our Standard of Review
The parties disagree over our standard of review.
According to the State, a motion for suppression of evidence
presents a mixed question of law and fact: the trial court's
factual findings deserve deference insomuch as they are not
against the manifest weight of the evidence, but we decide de
novo whether those factual findings call for a suppression of
evidence. People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93,
100-01 (2004). Defendant concedes that, "ordinarily," we should
apply this dual standard when reviewing rulings on motions to
suppress evidence. He contends, however, that because we are
actually reviewing the granting of a motion for reconsideration,
we should use a different standard of review. He cites a First
District case for the following proposition: "'"The decision to
grant or deny a motion for reconsideration lies within the
discretion of the circuit court and will not be reversed absent
an abuse of that discretion. [Citation.]"'" Avenaim v. Lubecke,
347 Ill. App. 3d 855, 861, 807 N.E.2d 1068, 1073 (2004), quoting
Chelkova v. Southland Corp., 331 Ill. App. 3d 716, 729, 771
N.E.2d 1100, 1111 (2002). We likewise have held: "A trial
court's decision on a motion to reconsider will not be disturbed
absent abuse of discretion." Woolums v. Huss, 323 Ill. App. 3d
628, 639, 752 N.E.2d 1219, 1229 (2001); see also Weilmuenster v.
Illinois Ben Hur Construction Co., 72 Ill. App. 3d 101, 105-106,
- 22 -
390 N.E.2d 579, 582 (1979).
These cases (prescribing an abuse-of-discretion stan-
dard of review for rulings on motions for reconsideration) are
civil cases, not criminal cases--but, one must bear in mind, we
are reviewing a civil proceeding. The question, did the trial
court abuse its discretion? implies an attitude of deference. We
have stated:
"'"Abuse of discretion"' means clearly
against logic; the question is not whether
the appellate court agrees with the circuit
court, but whether the circuit court acted
arbitrarily, without employing conscientious
judgment, or whether, in view of all the
circumstances, the court exceeded the bounds
of reason and ignored recognized principles
of law so that substantial prejudice
resulted.'" Long v. Mathew, 336 Ill. App. 3d
595, 600-601, 783 N.E.2d 1076, 1080 (2003),
quoting State Farm Fire & Casualty Co. v.
Leverton, 314 Ill. App. 3d 1080, 1083, 732
N.E.2d 1094, 1096 (2000).
If our standard of review in the present case were deferential,
we would simply ask whether the court abused its discretion,
instead of using a dual standard of review as in criminal cases.
- 23 -
Our mere disagreement with the court's ultimate conclusion as to
whether the evidence should be suppressed would not warrant
reversal; we would have to allow room for a reasonable difference
of opinion. Considering the United States Supreme Court's
rationale for the dual standard of review, we conclude that
deference on the ultimate question of the reasonableness of a
seizure would be undesirable even in a civil case.
In Ornelas v. United States, 517 U.S. 690, 691, 134 L.
Ed. 2d 911, 916, 116 S. Ct. 1657, 1659 (1966), the question
before the Supreme Court was whether the court of appeals had
used the correct standard when reviewing the trial court's
findings of reasonable suspicion and probable cause. The court
of appeals opined that those findings "should be reviewed 'defer-
entially,' and 'for clear error'" (Ornelas, 517 U.S. at 691, 134
L. Ed. 2d at 916, 116 S. Ct. at 1659)--a term that the Supreme
Court understood to be synonymous with an "abuse of discretion"
(Ornelas, 517 U.S. at 694 n.3, 134 L. Ed. 2d at 918 n.3, 116 S.
Ct. at 1661 n.3). The Supreme Court agreed that a reviewing
court should look with deference upon the trial court's findings
of historical fact (Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at
920, 116 S. Ct. at 1663), but, for three related reasons, the
Court prescribed a de novo standard of review for the "ultimate
determinations of reasonable suspicion and probable cause"
(Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919, 116 S. Ct. at
- 24 -
1662). First, a "policy of sweeping deference" would allow trial
courts to draw opposite conclusions as to probable cause on
essentially the same facts. Ornelas, 517 U.S. at 697, 134 L. Ed.
2d at 919, 116 S. Ct. at 1662. "Such varied results would be
inconsistent with the idea of a unitary system of law." Ornelas,
517 U.S. at 697, 134 L. Ed. 2d at 919, 116 S. Ct. at 1662.
Second, "[i]ndependent review" enabled appellate courts "to
maintain control of, and to clarify, the legal principles."
Ornelas, 517 U.S. at 697, 134 L. Ed. 2d at 919, 116 S. Ct. at
1662. Third, "de novo review tend[ed] to unify precedent and
[would] come closer to providing law enforcement officers with a
defined '"'set of rules which, in most instances, ma[de] it
possible to reach a correct determination beforehand as to
whether an invasion of privacy [was] justified in the interest of
law enforcement.'"'" Ornelas, 517 U.S. at 697-98, 134 L. Ed. 2d
at 919-20, 116 S. Ct. at 1662, quoting New York v. Belton, 453
U.S. 454, 458, 69 L. Ed. 2d 768, 773, 101 S. Ct. 2860, 2863
(1981), quoting W. LaFave, "Case-By-Case Adjudication" versus
"Standardized Procedures": The Robinson Dilemma, 1974 S. Ct. Rev.
127, 142 (1974).
We do not see how classifying a case as "civil" rather
than "criminal" lessens the force of that threefold rationale if,
in the civil case, the appellate court is developing precedent on
the question of whether an invasion of privacy was constitution-
- 25 -
ally justified. Although we normally review rulings on motions
for reconsideration for an abuse of discretion, we decline to
apply that policy of sweeping deference to this case. Instead,
we will apply the dual standard of review that the Supreme Court
prescribed in Ornelas and which our own supreme court reaffirmed
in Pitman, 211 Ill. 2d at 512-13, 813 N.E.2d at 101.
3. The Trial Court's Factual Findings, to Which We Defer
In the original order of February 24, 2006, denying
defendant's petition to rescind the summary suspension of his
driver's license, the trial court laid out the competing versions
of fact from the evidentiary hearing--defendant's version on the
one hand and Dawdy's version on the other--and found that "the
controverted facts [had to] be resolved in favor of the State."
In short, the court believed Dawdy over defendant. The State
argues we should defer to that factual determination. See People
v. Moss, 217 Ill. 2d 511, 517, 842 N.E.2d 699, 704 (2005).
Defendant does not claim that the factual findings in
the trial court's original order were against the manifest weight
of the evidence; he merely claims they were superseded. In its
order of April 5, 2006, granting defendant’s motion for reconsid-
eration, the court made no factual findings. Defendant reasons
that we must, therefore, "presume that the trial court found all
issues and controverted facts in favor of the prevailing party,
here, the defendant." People v. Lagle, 200 Ill. App. 3d 948,
- 26 -
954, 558 N.E.2d 514, 519 (1990); see also National Acceptance Co.
v. Pintura Corp., 94 Ill. App. 3d 703, 707, 418 N.E.2d 1114, 1118
(1981) ("Where as here, the judgment of the trial court is not
accompanied by findings of fact, the presumption is that the
trial court found all issues and controverted facts in favor of
the prevailing party").
When interpreting a judgment, we strive to effectuate
the trial court's intent, and, to that end, we interpret the
judgment in the context in which the court rendered it. Part of
that context is the pleading that sought the judgment. Baldi v.
Chicago Title & Trust Co., 113 Ill. App. 3d 29, 33, 446 N.E.2d
1205, 1208-09 (1983). Neither Lagle nor National Acceptance Co.
dealt with a motion for reconsideration. A party can file a
motion for reconsideration for one or more of the following
reasons: (1) to inform the trial court of newly discovered
evidence that was unavailable at the time of the original hear-
ing, (2) to alert the court to changes in the law, or (3) to
apprise the court of any errors it made in its application of
existing law. Kaiser v. MEPC American Properties, Inc., 164 Ill.
App. 3d 978, 987, 518 N.E.2d 424, 429-30 (1987). In his motion
for reconsideration, defendant presented no new evidence; he
merely argued that the court erred in its application of existing
law. Specifically, he argued that the court erred by applying
the rule of Santana to this case because, unlike the arrest in
- 27 -
Santana, the one in this case had not yet "commenced" when Dawdy
followed defendant into the house. He further argued that the
warrantless, nonconsensual entry of the house was unreasonable,
given the lack of exigent circumstances. Such being defendant's
argument in his motion for reconsideration, we will not presume
that the court had an unsolicited change of mind about the
facts--that, for no apparent reason, it now chose to believe
defendant over Dawdy without bothering to say so in the record.
Instead, we infer that while adhering to its previous factual
findings, the court agreed with the legal argument that defendant
made in his motion for reconsideration, and granted the motion on
that basis. We so interpret the judgment.
4. Standing
At trial, the State stipulated that defendant had a
legitimate expectation of privacy in Foiles's residence and that
he, therefore, had standing to claim the protection of the fourth
amendment (U.S. Const., amend. IV). The stipulation is justi-
fied. See Minnesota v. Olson, 495 U.S. 91, 96-97, 109 L. Ed. 2d
85, 93, 110 S. Ct. 1684, 1688 (1990) ("Olson's status as an
overnight guest is alone enough to show that he had an expecta-
tion of privacy in the home that society is prepared to recognize
as reasonable").
5. Fleeing into a Residence After the Commencement of
an Investigatory Stop
In Santana, 427 U.S. at 40, 49 L. Ed. 2d at 303, 96 S.
- 28 -
Ct. at 2408, the police had probable cause to arrest Santana for
distribution of heroin. Upon arriving at her house, they saw her
standing in the doorway with a brown paper bag in her hand.
Santana, 427 U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408.
They pulled up to within 15 feet of her and jumped out of the
van, shouting "'police'" and holding up their identification.
Santana, 427 U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408.
Santana retreated into her house, and the officers followed her,
nabbing her in the vestibule. Santana, 427 U.S. at 40, 49 L. Ed.
2d at 304, 96 S. Ct. at 2408. As she tried to pull away from
them, packets of heroin spilled out of the bag. Santana, 427
U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408. They found
the marked money in her pocket. Santana, 427 U.S. at 41, 49 L.
Ed. 2d at 304, 96 S. Ct. at 2409. She moved to suppress the
money and heroin because the police had no warrant. Santana, 427
U.S. at 41, 49 L. Ed. 2d at 304, 96 S. Ct. at 2409.
The Supreme Court had previously held, in United States
v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976),
"that the warrantless arrest of an individual in a public place
upon probable cause did not violate the [f]ourth [a]mendment."
Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409.
Given that holding, the Supreme Court asked two questions in
Santana. The first question was "whether, when the police first
sought to arrest Santana, she was in a public place." Santana,
- 29 -
427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409. The
answer was yes. Standing in the threshold of her front door, she
was in a public place for purposes of the fourth amendment.
Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409.
She had no reasonable expectation of privacy in the doorway,
"exposed to public view, speech, hearing, and touch as if she had
been standing completely outside her house." Santana, 427 U.S.
at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409. Thus, when the
police, on the basis of probable cause, sought to arrest her in
the open doorway, they were merely "perform[ing] a function which
[the Court] ha[d] approved in Watson." Santana, 427 U.S. at 42,
49 L. Ed. 2d at 305, 96 S. Ct. at 2409.
The second question was "whether [Santana's] act of
retreating into her house could thwart an otherwise proper
arrest." Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct.
at 2409. The answer was no. "[A] suspect may not defeat an
arrest which has been set in motion in a public place, and is
therefore proper under Watson, by the expedient of escaping to a
private place." Santana, 427 U.S. at 43, 49 L. Ed. 2d at 306, 96
S. Ct. at 2410.
Before defendant retreated into the house, Dawdy set in
motion an investigatory stop, not an arrest. Otherwise, this
case resembles Santana. Having witnessed him turn without using
a turn signal, Dawdy had probable cause to believe that defendant
- 30 -
violated section 11-804(b) of the Illinois Vehicle Code (Code)
(625 ILCS 5/11-804(b) (West 2004)). For that reason alone, he
had the right to pull defendant over. See People v. Shepherd,
242 Ill. App. 3d 24, 29, 610 N.E.2d 163, 166 (1993). He also saw
defendant coast past a stop sign, an additional traffic violation
(625 ILCS 5/11-904(b) (West 2004)). He "set the stop in motion"
by turning on his flashing red and blue lights at the intersec-
tion of East Lincoln Street and Bates Avenue. Ignoring Dawdy’s
repeated commands to stop and go back into the car, defendant
walked away from him and retreated into the house, giving Dawdy
probable cause to believe that defendant had committed the
offense of fleeing or attempting to elude a police officer (625
ILCS 5/11-204(a) (West 2004)). On West Lincoln Street, defendant
swerved toward Dawdy at a high rate of speed, forcing Dawdy to
pull over to the shoulder of the street to avoid a head-on
collision. When Dawdy turned around and followed him, defendant
was still swerving. Defendant made a wide turn onto Bates Street
without using a turn signal. He failed to stop at a stop sign.
He swayed and stumbled up the sidewalk, disobeying Dawdy's
repeated orders to stop, and when he stood in the doorway (a
public place, under Santana) and more or less said, "You're out
of luck because I made it home," Dawdy smelled alcohol on his
breath. At that point, "a person of reasonable caution" would
have believed that defendant had committed DUI (People v. Sims,
- 31 -
192 Ill. 2d 592, 614, 736 N.E.2d 1048, 1060 (2000))--a belief
that defendant evidently shared. Dawdy did not know defendant's
blood alcohol level--he did not have scientific proof of intoxi-
cation--but "the evidence relied upon by the arresting officer[]
does not have to be sufficient to prove guilt beyond a reasonable
doubt"; it need not even prove that the defendant is more proba-
bly than not guilty (Sims, 192 Ill. 2d at 614-15, 763 N.E.2d at
1060). Dawdy had more than "mere suspicion." See Sims, 192 Ill.
2d at 614-15, 736 N.E.2d at 1060. While defendant was still in a
public place, Dawdy had probable cause to arrest him for attempt-
ing to elude a police officer and for DUI.
But Dawdy did not form an intent to arrest defendant
until after he followed defendant into the house. Thus, when
defendant retreated into the house, Dawdy had not, as of yet,
"set in motion" the arrest. See Santana, 427 U.S. at 43, 49 L.
Ed. 2d at 306, 96 S. Ct. at 2410. He had, however, "set in
motion" a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed.
2d 889, 88 S. Ct. 1868 (1968). Like an arrest, a Terry stop is a
seizure of the person (People v. Gonzalez, 204 Ill. 2d 220, 226,
789 N.E.2d 260, 264 (2003)); it is simply a less intrusive form
of seizure (Illinois v. Wardlow, 528 U.S. 119, 126, 145 L. Ed. 2d
570, 577, 120 S. Ct. 673, 677 (2000)).
Does this distinction between the two types of seizure
make Santana distinguishable? Defendant seems to think so but
- 32 -
does not explain why. According to the Second District, the
doctrine of hot pursuit does not care whether it was a Terry stop
or an arrest that the police officer set in motion before pursu-
ing a suspect into a private place. In People v. Rivera, 233
Ill. App. 3d 69, 598 N.E.2d 423 (1992), the Aurora police had
information that cocaine was stored in the basement of the
defendant's bar, La Tropicana, and that he was trafficking in
that drug. Two police officers, Renaud and Reichardt, entered
the bar (Rivera, 233 Ill. App. 3d at 71, 598 N.E.2d at
424)--which, other than the basement, was a public place (Rivera,
233 Ill. App. 3d at 76, 598 N.E.2d at 428). They had no warrant.
Rivera, 233 Ill. App. 3d at 71, 598 N.E.2d at 424. When the
defendant saw Renaud approaching, he made a dash for the basement
door, opened it, and ran downstairs. Rivera, 233 Ill. App. 3d at
71-72, 598 N.E.2d at 425. The officers pursued him. Rivera, 233
Ill. App. 3d at 72, 598 N.E.2d at 425. The defendant ran to an
office in the basement, pushed the door open, and yelled "'po-
lice.'" Rivera, 233 Ill. App. 3d at 72, 598 N.E.2d at 425. In
the basement office, a man named Wilkinson stuffed a bag into his
mouth and would not spit it out. Rivera, 233 Ill. App. 3d at 72,
598 N.E.2d at 425. The police found a bag of cocaine in the
defendant's pocket. Rivera, 233 Ill. App. 3d at 72, 598 N.E.2d
at 425. The prior information the police had, together with the
defendant's sudden flight, provided reasonable suspicion to stop
- 33 -
him pursuant to Terry. Rivera, 233 Ill. App. 3d at 77, 598
N.E.2d at 428. After reviewing authorities from other jurisdic-
tions, the Second District held as follows:
"[T]he police, in certain limited cir-
cumstances, may be authorized to make a
warrantless entry into a private premises for
the purpose of effectuating a Terry stop[,]
provided the police have a lawful basis to
stop a suspect in a public place and the
suspect reacts by suddenly fleeing to a pri-
vate sanctuary, thereby thwarting any oppor-
tunity to conduct the detention at a public
location." Rivera, 233 Ill. App. 3d at 76,
598 N.E.2d at 427.
We find Rivera to be persuasive. In fact, the State's
case here is stronger than in Rivera because when pursuing
defendant into the house, Dawdy had more than reasonable suspi-
cion for a Terry stop; he had probable cause to arrest defendant.
So this case is closer to Santana than Rivera. If, on the basis
of probable cause, Dawdy had "set in motion" an arrest of defen-
dant outside Foiles's house and then followed him inside, Santana
would have been precisely applicable. It must follow that if, in
reliance on the same probable cause, Dawdy "set in motion" a
Terry stop of defendant outside the house, he likewise could
- 34 -
follow defendant inside. "The Santana analysis, which supports
the warrantless arrest of a suspect who has no legitimate expec-
tation of privacy, a fortiori allows the lesser intrusion of a
brief investigatory detention." (Emphasis in original.) United
States v. Gori, 230 F.3d 44, 53 (2d Cir. 2000). We understand
Santana to essentially stand for the following proposition: when
the police commence a reasonable seizure of a person in a public
place, that person cannot thwart the seizure by retreating into a
private place. See Edwards v. United States, 364 A.2d 1209, 1214
(D.C. App. 1976), modified en banc, Edwards v. United States, 379
A.2d 976, 979 (D.C. App. 1977).
Defendant argues "there is no indication that [he]
'fled' into the house[;] rather, the evidence showed he merely
got out of his car and walked into the house." The Supreme Court
referred to the act of "escaping to a private place." Santana,
427 U.S. at 43, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410. We do
not see what difference it makes whether defendant sprinted,
jogged, or walked up the sidewalk to Foiles's house; Dawdy was
directly behind him, repeatedly ordering him to stop and get back
into the car, and defendant ignored those commands and went into
the house with the intent of escaping Dawdy and thwarting the
investigatory stop. See State v. Paul, 548 N.W.2d 260, 265
(Minn. 1996). "'[H]ot pursuit'" means merely "some sort of a
chase." Santana, 427 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct.
- 35 -
at 2410.
6. "Hot Pursuit" as an Exigent Circumstance Unto Itself
Defendant argues that Dawdy violated the fourth amend-
ment by arresting him inside Foiles's home because Dawdy was
aware of no "'exigent circumstances,'" within the meaning of
Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct.
1371 (1980), and Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d
732, 104 S. Ct. 2091 (1984), to justify his warrantless,
nonconsensual entry of the home.
In Payton, 445 U.S. at 588-89, 63 L. Ed. 2d at 652, 100
S. Ct. at 1381, the Supreme Court held that entering a home
without a warrant or consent and arresting someone therein--even
for a felony that the police had probable cause to believe the
arrestee committed--was presumptively unreasonable under the
fourth amendment, applicable to the states via the fourteenth
amendment (U.S. Const., amend. XIV) (Payton, 445 U.S. at 576, 63
L. Ed. 2d at 644-45, 100 S. Ct. at 1374-75), and that the state
could rebut this presumption of unreasonableness only by showing
"'exigent circumstances'" (Payton, 445 U.S. at 589, 63 L. Ed. 2d
at 652, 100 S. Ct. at 1381, quoting United States v. Reed, 572
F.2d 412, 423 (2d Cir. 1978)). The Supreme Court declined to
"consider the sort of emergency or dangerous situation, described
in [its] cases as 'exigent circumstances,' that would justify a
warrantless entry into a home for the purpose of either arrest or
- 36 -
search" (Payton, 445 U.S. at 583, 63 L. Ed. 2d at 649, 100 S. Ct.
at 1378), "thereby leaving to the lower courts the initial
application of the exigent-circumstances exception" (Welsh, 466
U.S. at 749, 80 L. Ed. 2d at 743, 104 S. Ct. at 2097).
While no list of factors is exhaustive, our own supreme
court has set out some factors that a court may take into account
when assessing exigency in a particular situation. Those factors
are as follows:
"(1) whether the offense under investigation
was recently committed; (2) whether there was
any deliberate or unjustifiable delay by the
officers during which time a warrant could
have been obtained; (3) whether a grave of-
fense is involved, particularly one of vio-
lence; (4) whether the suspect was reasonably
believed to be armed; (5) whether the police
officers were acting upon a clear showing of
probable cause; (6) whether there was a like-
lihood that the suspect would have escaped if
not swiftly apprehended; (7) whether there
was strong reason to believe that the suspect
was on the premises; and (8) whether the
police entry, though nonconsensual, was made
peaceably." People v. Foskey, 136 Ill. 2d
- 37 -
66, 75, 554 N.E.2d 192, 197 (1990).
In Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S.
Ct. at 2093, the Supreme Court considered whether "'exigent
circumstances'" allowed the police to make "a warrantless night
entry of a person's home in order to arrest him for a nonjailable
traffic offense" of DUI. In that case, a motorist, Randy
Jablonic, saw a car changing speeds and veering side to side
until it swerved off the road and came to rest in an open field.
Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093.
Another passerby stopped at the scene, and Jablonic asked her to
call the police. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738,
104 S. Ct. at 2093-94. Before the police arrived, the driver of
the car got out and walked home, leaving the car in the field.
Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2094.
Without obtaining a warrant, the police entered the driver's
home, found him lying naked in bed, and arrested him for DUI.
Welsh, 466 U.S. at 743, 80 L. Ed. 2d at 738-39, 104 S. Ct. at
2094. The Supreme Court held that the "warrantless, nighttime
entry into the petitioner's home to arrest him for a civil
traffic offense" was "clearly prohibited by the special
protection afforded the individual in his home by the [f]ourth
[a]mendment." Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104
S. Ct. at 2100.
"[A]n important factor to be considered when
- 38 -
determining whether any exigency exist[ed] [was] the gravity of
the underlying offense for which the arrest [was] being made."
Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.
Under Wisconsin law, no incarceration was possible for a first
offense of DUI. Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104
S. Ct. at 2100. The State claimed a potential emergency in the
need to ascertain the driver's blood alcohol level. Welsh, 466
U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. But
considering that Wisconsin had "chosen to limit severely the
penalties that [could] be imposed" (Welsh, 466 U.S. at 754 n.14,
80 L. Ed. 2d at 746 n.14, 104 S. Ct. at 2100 n.14), thereby
designating the offense as a minor one, "mere similarity to other
cases involving the imminent destruction of evidence [was] not
sufficient" (Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S.
Ct. at 2100).
Unlike the state of Wisconsin in Welsh, Illinois does
not limit the penalties for a first DUI: it is a Class A
misdemeanor (625 ILCS 5/11-501(b-2) (West 2004)), punishable by
imprisonment for up to 364 days (730 ILCS 5/5-8-3 (West 2004)).
Fleeing or attempting to elude a police officer also is a Class A
misdemeanor. 625 ILCS 5/11-204(a) (West 2004). Because Dawdy
had probable cause to effect a seizure of the person for jailable
offenses, Welsh is distinguishable. More important, Welsh was
not a case of hot pursuit, as the Supreme Court pointed out.
- 39 -
Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.
We need not decide whether the factors in Foskey
justify, on balance, Dawdy's warrantless, nonconsensual entry of
Foiles's home; Dawdy was in hot pursuit of defendant and, for
that reason alone, had the right to enter the house and arrest
him. It appears that the majority of jurisdictions that have
considered this question would so hold. D. Gilsinger,
Annotation, When Is Warrantless Entry of House or Other Building
Justified Under "Hot Pursuit" Doctrine, 17 A.L.R. 6th 327, §§12,
14 (2006).
According to defendant, "the law is clear that hot
pursuit is not itself an exigent circumstance or exception to the
warrant requirement, but merely one factor to consider." He
cites Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519, in which
the Fifth District disagreed with the State’s contention "that
'hot pursuit' [was] an exception to the warrant requirement
separate and distinct from the exigent[-]circumstances
exception." The Fifth District stated:
"The cases do not discuss a separate hot
pursuit exception to the warrant requirement,
but discuss it within the context of
discussing exigent circumstances. Hot
pursuit is merely one factor to be considered
in determining whether exigent circumstances
- 40 -
justified a warrantless home entry. See
Dorman v. United States (1969), 435 F.2d 385,
391 ('Another doctrine excusing failure to
obtain a warrant in case of entry for arrest
has been cast in terms of "exigent
circumstances," or "necessitous
circumstances." While some decisions also
refer to condition of "hot pursuit," this
term is not a limitation but rather an
illustration of the kind of exigent
circumstance justifying entry without a
warrant to arrest a suspect')." Lagle, 200
Ill. App. 3d at 955, 558 N.E.2d at 519.
In its holding in Santana, the Supreme Court did not
refer to hot pursuit as only one factor among others. Although
the Court remarked upon the possibility of destruction of
evidence, its final, unqualified holding was as follows: "[A]
suspect may not defeat an arrest which has been set in motion in
a public place, and is therefore proper under Watson, by the
expedient of escaping to a private place." Santana, 427 U.S. at
43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410. The Court did not
add the qualification "provided that other factors" (such as
those listed in Foskey) "are satisfied." Most courts appear to
take Santana's holding at face value, treating hot pursuit as an
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exception unto itself rather than as just another factor. E.g.,
People v. Tillman, 355 Ill. App. 3d 194, 198, 823 N.E.2d 117,
121-22 (2005), appeal denied, 215 Ill. 2d 616, 833 N.E.2d 8
(2005); People v. Wimbley, 314 Ill. App. 3d 18, 25, 731 N.E.2d
290, 295 (2000) ("Courts have also found exigent circumstances
where police are in 'hot pursuit' of a suspect who flees from a
public place into his residence"); State v. Blake, 468 N.E.2d
548, 553 (Ind. App. 1984) ("immediate and continuous pursuit from
the scene of the crime formed the exigent circumstance"); People
v. Lloyd, 216 Cal. App. 3d 1425, 1429, 265 Cal. Rptr. 422, 425
(1989) ("the officer's 'hot pursuit' into the house to prevent
the suspect from frustrating the arrest which had been set in
motion in a public place constitutes a proper exception to the
warrant requirement").
Hot pursuit, as an exception unto itself, appears to
have deep roots in 17th- and 18th-century English common law.
Payton, 445 U.S. at 598, 63 L. Ed. 2d at 658, 100 S. Ct. at 1386.
Hale stated: "[I]f the supposed offender fly and take house, and
the door will not be opened upon demand of the constable and
notification of his business, the constable may break the door,
tho[ugh] he have no warrant." 2 M. Hale, Pleas of the Crown 92
(1736), quoted in Payton, 445 U.S. at 595 n.41, 63 L. Ed. 2d at
656 n.41, 100 S. Ct. at 1385 n.41.
One court has explained:
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"Hot pursuit situations have a policy
basis distinct from other exigent
circumstances in that they involve arrests
that have already been set in motion. Logic
dictates that, regardless of the gravity of
the offense, an individual should not be able
to avoid an otherwise lawful warrantless
arrest merely by outracing the police
officers into the individual's dwelling."
Erickson v. Commissioner of Public Safety,
No. C2-92-507, slip op. at ___ (Minn. App.
August 25, 1992).
Under Minnesota law, this unpublished opinion is "not
precedential," but parties are permitted to cite it (Minn. Stat.
§480A.08(3) (2004)), and we find its logic to be persuasive.
Thus, we respectfully disagree with the Fifth
District's discussion of the doctrine of hot pursuit in Lagle.
Moreover, we are uncertain that the language the Fifth District
quotes from Dorman actually supports the proposition that the
Fifth District draws from it: just because one characterizes hot
pursuit as an "exigent circumstance," it does not necessarily
follow that hot pursuit is "merely one factor" among others.
When defendant repeatedly ignored Dawdy's commands to
stop and tried to elude him by going (or, rather, staggering)
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into Foiles's house, reasonable suspicion ripened into probable
cause, and the fourth amendment did not require Dawdy to simply
shrug his shoulders and go obtain a warrant. Apparently,
defendant thought the enforcement of traffic laws resembled a
children's game of tag, whereby Dawdy was "it" and defendant was
"safe" if he reached "home" before Dawdy apprehended him. See
United States v. Schmidt, 403 F.3d 1009, 1014 (8th Cir. 2005).
As Santana teaches, the fourth amendment does not contemplate
this game.
III. CONCLUSION
Because the State nol-prossed the criminal DUI case, we
dismiss this appeal in part insomuch as it pertains to the
suppression of evidence and quashing of the arrest. We reverse
the trial court’s rescission of the summary suspension of
defendant’s driver’s license.
Dismissed in part and reversed in part.
STEIGMANN, P.J., and COOK, J., concur.
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