2013 IL App (1st) 121138
No. 1-12-1138 FIFTH DIVISION September 20, 2013
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. YT-242-966-968 ) GARRY COLQUITT, ) Honorable ) Noreen Daly, Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.
OPINION
¶1 Defendant Garry Colquitt was charged with driving under the influence
(DUI) and blocking a roadway. Following a suppression hearing, the trial court
granted defendant's pretrial motion to quash his arrest and suppress evidence of his
statements and field sobriety and Breathalyzer test results. The trial court
suppressed the arrest and the evidence on the grounds: (1) that defendant was
seized, for fourth amendment purposes, at the moment when a police vehicle
pulled behind defendant's vehicle, which was parked on the road, in a lane of
traffic and without hazard lights; (2) and that the officer lacked either reasonable
suspicion or probable cause to justify this alleged seizure. No. 1-12-1138
¶2 On this appeal, the State argues: (1) that a seizure did not occur until a later
point in time when the arresting officer noticed a strong smell of alcohol about
defendant and observed that defendant's eyes were bloodshot and his speech was
slurred; and (2) that, even if a seizure did occur at the moment when the officer
pulled his vehicle behind defendant's parked vehicle, the officer had probable
cause to arrest defendant for a traffic violation committed in his presence, namely,
the blocking of the roadway. The State further argues that any alleged seizure was
also justified under the community caretaking exception.
¶3 For the following reasons, we conclude that no seizure occurred when the
police vehicle pulled behind defendant's parked vehicle. Since we decide the
appeal on this ground, we do not reach the State's remaining arguments.
¶4 BACKGROUND
¶5 On May 3, 2011, the State charged defendant with DUI and with stopping,
standing or parking upon a roadway outside of a business or residence district. 625
ILCS 5/11-501(a), 11-1301(a) (West 2010). Section 11-1301(a) states in full:
“Outside a business or residence district, no person shall
stop, park or leave standing any vehicle, whether
attended or unattended, upon the roadway when it is
2 No. 1-12-1138
practicable to stop, park or so leave such vehicle off the
roadway, but in every event an unobstructed width of the
highway opposite a standing vehicle shall be left for the
free passage of other vehicles and clear view of such
stopped vehicle shall be available from a distance of 200
feet in each direction upon such highway.” 625 ILCS
5/11-1301(a) (West 2010).
¶6 Defendant moved to quash the arrest and suppress evidence obtained as a
result of his arrest. On January 26, 2012, the trial court held a suppression hearing.
At the hearing, the evidence consisted of: (1) the arresting officer's testimony; (2)
a video recording from the arresting police officer’s vehicle; and (3) an audio
police dispatch recording.
¶7 Officer Wood1 of the Tinley Park police department testified that he had
been a police officer for six years with the Tinley Park police department. On May
2, 2011, at 11:50 p.m., he was working alone in a marked police vehicle and
1 Officer Wood’s first name is not in the appellate record.
3 No. 1-12-1138
driving southbound on 80th Avenue in Tinley Park when he observed defendant’s
vehicle traveling westbound on 183rd Street.
¶8 Wood testified he then made a left-hand turn on to 183rd Street heading
eastbound. 183rd Street consisted of four lanes of traffic, two eastbound and two
westbound lanes, which were separated by a median. Wood traveled less than a
block on 183rd Street when he observed, in his rearview mirror, defendant’s
vehicle stopped in the roadway blocking the right-hand lane of 183rd Street. Wood
completed a “U-turn” and parked behind the vehicle, which was parked 75 feet
from the intersection of 80th Avenue and 183rd Street.
¶9 Wood testified that before he approached defendant’s parked vehicle he
advised dispatch of the vehicle’s license plate number and location. He then
approached the passenger side of the vehicle. He had a conversation with
defendant, who was seated on the driver’s side of the vehicle, and then advised
dispatch of defendant’s driver’s license number. Defendant informed Wood that he
was parked in the road because he dropped his wallet. Shortly thereafter two
additional police officers arrived on the scene, Officer Dubish and Sergeant Popp.2
2 Officer Dubish and Sergeant Popp’s first names are not in the appellate record.
4 No. 1-12-1138
Wood asked defendant to exit his vehicle and instructed defendant to complete
various field sobriety tests. After defendant completed the tests, Wood placed
defendant under arrest for DUI, and Sergeant Popp called for a tow truck to
remove defendant’s vehicle.
¶ 10 Wood testified that defendant completed a Breathalyzer test once they
arrived at the police station which showed defendant’s blood alcohol content was
0.169. He asked defendant questions from the alcohol influence report and
defendant answered only some of the questions.
¶ 11 On cross-examination, Wood testified that he was traveling eastbound on
183rd Street and defendant was traveling westbound on 183rd Street. Defendant
had just passed an intersection that had traffic lights. Wood thought defendant may
have driven through a red light, but he was not certain so he continued driving. He
made a left-hand turn, looked in his rearview mirror and then observed defendant
parked, blocking the right-hand lane of 183rd Street. Defendant’s vehicle did not
have its hazard lights on and was completely stopped.
¶ 12 Wood testified that when he approached defendant’s parked vehicle he
noticed a strong odor of liquor and observed that defendant’s eyes were bloodshot
5 No. 1-12-1138
and his speech was slurred. Wood asked defendant where he was traveling to and
defendant informed him he was traveling home to Country Club Hills.
¶ 13 Wood testified that Country Club Hills was east of where defendant was
parked and defendant was traveling westbound. Defendant informed him that he
was traveling from Jameson’s in Frankfort or lower Mokena. Wood observed that
defendant appeared confused and could not respond to all of his questions. On
redirect, Wood was asked whether he "blew" his siren, and Wood testified that he
had not viewed the video and he did not recall.
¶ 14 The defense then introduced the audio dispatch tape and the videotape from
Officer Wood’s police vehicle, which included audio. The videotape depicts
Officer Wood making a U-turn. A siren can barely be heard in the background
and there appear to be some colored lights in the corners of the tape. Thus, the
tape appears to depict Officer Wood activating his siren and emergency lights, as
he made a U-turn across four lanes of traffic at night. After the officer parked his
vehicle behind defendant's parked vehicle, there is a loud sound of distortion as
the officer turned on his microphone and talked to his dispatcher. At that point,
the siren was off, and the subsequent conversation between the officer and
defendant can be heard clearly without a siren in the background.
6 No. 1-12-1138
¶ 15 The videotape further depicts Officer Wood providing the police dispatcher
with his location and defendant’s license plate number. Officer Wood then
approached defendant’s vehicle from the passenger side and began a conversation
with defendant, stating that he was “wondering why you stopped in the roadway
here.” Defendant did not respond. Officer Wood asked defendant where he was
traveling from several times and defendant did not respond. Defendant later
answered that he was traveling from Jameson’s in Frankfort. Defendant is heard
stating that he was on his way home to Country Club Hills in slurred speech.
Wood asked defendant, “Do you realize you are going the wrong way?” Defendant
responded in the negative. Defendant is heard stating: “The reason I am stopped is
I dropped my wallet.” The video depicts Officer Wood asking defendant for his
license, registration and insurance information, and then providing defendant’s
driver’s license number to the police dispatcher. Shortly thereafter, another officer
arrived on the scene. Wood is heard informing the other officer that defendant was
“borderline through the red light,” and that when Wood looked back, defendant’s
vehicle was stopped in the roadway so he approached to check on the vehicle.
¶ 16 The videotape displays Wood asking defendant to exit the vehicle and
stating, “I need to see if you are okay to drive.” Wood is heard asking defendant if
7 No. 1-12-1138
he had anything to drink that night. Defendant responded that he had one or two
drinks. Wood asked defendant when he began drinking that night and defendant
responded that he began drinking around 10:30 or 11 p.m. Wood asked defendant,
“I would like you to do a couple [of] tests for me, okay?” and defendant
responded, “Sure.” The video then depicts Wood conducting field sobriety tests
with defendant. Wood instructed defendant to follow an object with his eyes,
complete the one-leg-stand test and the walk-and-turn test. Following the tests,
Wood can be heard stating that based on the results of the tests and defendant’s
statements he was placing defendant under arrest for DUI. Wood walked
defendant to his police vehicle and is then heard asking defendant, “I’m just going
to pat you down, okay?” to which defendant responded, “Okay.” Wood is then
observed driving defendant to the police station and defendant is heard saying
“please, anything but this,” to which Wood responded that there was nothing he
could do and he stated: “Hang on, I’ll talk to you when we get in there. I got to
read you your rights first.”
¶ 17 The dispatch tape coincided with the video footage. On the dispatch tape,
Officer Wood is heard providing dispatch with his location, defendant’s license
plate number, and defendant’s driver’s license number. The dispatcher provided
8 No. 1-12-1138
Officer Wood with information regarding defendant’s criminal history, and Wood
indicated that defendant was “most definitely a 55.” Another officer is heard
stating that Wood had “one in custody for a 10-55” and that they needed a tow
truck.
¶ 18 At the close of the evidence and after closing arguments, the trial court
granted defendant’s motion to quash the arrest and suppress the evidence. The trial
court found a seizure occurred when Officer Wood activated his emergency lights
and sounded his horn, since defendant’s vehicle was stopped momentarily and
“not blocking anything.” The trial court found: "All he was[,] was parked along
the side of the road." On appeal, the State argues that the trial court's factual
finding--that defendant was "not blocking anything" and "was parked along the
side of the road"--was in error. However, since we conclude for reasons explained
below that there was no seizure, we do not reach the question of whether this
factual finding by the trial court was against the manifest weight of the evidence.
¶ 19 In support of its ruling, the trial court also stated: "[the officer] blows the
horn and the blowing of the horn is one of the significant features here."
However, the record reveals no evidence that the police officer pressed his
vehicle's horn. The record consists of the officer's testimony and the tapes of the
9 No. 1-12-1138
incident. As for the officer's testimony, he did not testify that he sounded his
vehicle's horn. As for the videotape, although it contains the sound of distortion
as the officer switched on his microphone and spoke with his dispatcher, it does
not reveal the sounding of a horn.
¶ 20 However, since the parties and the trial court refer to the almost
simultaneous activation of lights and a horn, it appears that, by the word "horn,"
the parties and the trial court are referring to the vehicle's siren, which is just
barely audible on the videotape. For example, the trial court stated: "he [the
officer] puts on lights and a horn." Also, the trial court stated, "he blew the horn,
he blew, whatever you call that horn, when he pulled him over." Although the
siren is audible, the parties do not use the word "siren," making it apparent that
they are using the word "horn" to refer to the siren.
¶ 21 The trial court stressed that the use of a siren was the most significant factor
for finding a seizure. The trial court stated: "Now it might be arguable that he put
the lights on for a safety standpoint for both he [sic] and the defendant's car, but it
was clear that he blew the horn, he blew, whatever you call that horn, when he
pulled him over before he ever approached a car, before he ever knew what was
going on." The trial court reiterated: "I don't think you blow a horn at that time,
10 No. 1-12-1138
and I think it is after that point that he is not free to leave." The trial court
concluded, stating: "The car pulls over[,] not blocking anything and he comes
back and he puts on lights and a horn. It's a seizure. The court is granting the
motion." In sum, the most significant fact to the trial court for finding a seizure
was the officer's use of a siren. The officer's use of emergency lights was less of a
factor for the trial court, since the trial court acknowledged that the lights were
"arguably" needed from "a safety standpoint."
¶ 22 The State filed a motion to reconsider the ruling. Arguing the motion, the
prosecutor stated: "he had every reason for his safety to blow the horn. Just by
blowing the horn on its own does not amount to a seizure." The trial court denied
the motion, stating: "It was because it was a seizure when he turned on that horn
and blew those lights before he knew anything as counsel, defense counsel has
indicated." The trial court added: "It is questionable whether he could see from
his vantage point the car was pulled over to the side, but even if it were, too, if you
look at the statute again on that, it is extremely questionable whether he was in
violation of any traffic code."
11 No. 1-12-1138
¶ 23 After hearing argument, the trial court denied the State’s motion to
reconsider and the State filed a certificate of substantial impairment and a timely
notice of appeal. This appeal followed.
¶ 24 ANALYSIS
¶ 25 On appeal, the State argues that the trial court erred as a matter of law in
granting defendant’s motion to quash the arrest and suppress evidence of
defendant’s statements and field sobriety and Breathalyzer test results because: (1)
a seizure did not occur until the arresting officer observed evidence of defendant's
intoxication, at which point the arresting officer had probable cause to arrest
defendant; (2) even if the officer's activation of his emergency equipment is
considered a seizure, it was justified under the community caretaking exception;
and (3) the arresting officer had probable cause to arrest defendant for a traffic
violation committed in his presence, namely, parking on a roadway outside of a
business or residence district.
¶ 26 For the reasons explained below, we conclude that defendant was not seized
until the officer had observed evidence of defendant's intoxication. Since we
decide the appeal on this ground, we do not reach the State's remaining arguments.
12 No. 1-12-1138
¶ 27 I. Standard of Review
¶ 28 A review of a trial court’s ruling on a motion to quash arrest and suppress
evidence presents mixed questions of fact and law. People v. Lee, 214 Ill. 2d 476,
483 (2005). When reviewing a trial court’s ruling on a motion to quash arrest and
suppress evidence, we accord great deference to the trial court’s factual findings.
People v. Close, 238 Ill. 2d 497, 504 (2010). We will reverse a trial court’s
findings only if they are against the manifest weight of the evidence. People v.
Bunch, 207 Ill. 2d 7, 13 (2003). “A judgment is against the manifest weight of the
evidence only when an opposite conclusion is apparent or when findings appear to
be unreasonable, arbitrary, or not based on evidence.” Bazydlo v. Volant, 164 Ill.
2d 207, 215 (1995).
¶ 29 However, we review de novo the trial court’s ultimate legal ruling as to
whether suppression was warranted. People v. Pitman, 211 Ill. 2d 502, 512 (2004);
In re Mario T., 376 Ill. App. 3d 468, 472 (2007) (“Our focus *** is on the legal
question of the justification of the stop and frisk so as to warrant the denial of the
*** motion to suppress.”***). De novo consideration means we perform the same
analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.
App. 3d 564, 578 (2011). The ultimate legal question in the case at bar is whether
13 No. 1-12-1138
defendant’s statements and field sobriety and breathalyzer test results should have
been suppressed, which is a question that we consider de novo. Mario T., 376 Ill.
App. 3d at 472-73 (“whether the motion should have been granted necessarily
turns on a reviewing court’s ‘own assessment of the facts in relation to the issues
presented and may draw its own conclusions when deciding what relief should be
granted’ ” (quoting Pitman, 211 Ill. 2d at 512)).
¶ 30 II. Timing of the Seizure
¶ 31 When a defendant files a motion to quash his arrest and suppress evidence,
claiming that there was an illegal search or seizure, the defendant has the burden
of demonstrating the illegal search or seizure. People v. Buss, 187 Ill. 2d 144, 204
(1999). The timing of the seizure is a critical issue in this case. The defense argues
that defendant was seized at the moment when Officer Wood activated his
emergency equipment and parked behind defendant. The State argues that a
seizure did not occur until Officer Wood observed evidence of defendant being
under the influence of liquor, at which point Officer Wood had probable cause to
arrest defendant.
¶ 32 For purposes of the fourth amendment, an individual is “seized” when an
officer “ ‘by means of physical force or show of authority, has in some way
14 No. 1-12-1138
restrained the liberty of a citizen.’ ” People v. Luedemann, 222 Ill. 2d 530, 550
(2006) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). “ ‘The appropriate inquiry
is whether a reasonable person would feel free to decline the officers’ requests or
otherwise terminate the encounter.’ ” Luedemann, 222 Ill. 2d at 550 (quoting
Florida v. Bostick, 501 U.S. 429, 436 (1991)). The inquiry “presupposes a
reasonable innocent person.” (Emphasis in original.) Luedemann, 222 Ill. 2d at
551 (citing Bostick, 501 U.S. at 434-35). Illinois courts will consider the totality of
the circumstances in determining whether or not a seizure occurred. Luedemann,
222 Ill. 2d at 530. The circumstances Illinois courts will consider when deciding if
a seizure occurred include the Mendenhall factors, which were set forth in a
United States Supreme Court case of the same name. People v. Cosby, 231 Ill. 2d
262, 274 (2008) (citing United States v. Mendenhall, 446 U.S. 544, 553 (1980)).
In Mendenhall, the United States Supreme Court held:
“ ‘[A] person has been ‘seized’ within the meaning of the
Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.
Examples of circumstances that might indicate a seizure,
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even where the person did not attempt to leave, would be
the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer’s
request might be compelled.’ ” Cosby, 231 Ill. 2d at 274
(quoting Mendenhall, 446 U.S. at 554).
¶ 33 The Illinois Supreme Court applied the Mendenhall factors in Luedemann
and found that an officer did not seize the defendant until he had observed
evidence that the defendant was under the influence of liquor. Luedemann, 222 Ill.
2d at 565. In Luedemann, at 2:40 a.m., a police officer noticed the defendant,
legally parked, sitting in his vehicle smoking a cigarette. Luedemann, 222 Ill. 2d at
534. The officer drove closer to the defendant’s vehicle and observed the
defendant reach toward the floorboard of his vehicle. Luedemann, 222 Ill. 2d at
534. As the officer drove past the defendant’s vehicle, the defendant slumped
down in his seat on the driver’s side of the vehicle. Luedemann, 222 Ill. 2d at 534.
The officer parked in the center of the street and approached the defendant’s
vehicle from the rear driver’s side with a flashlight. Luedemann, 222 Ill. 2d at 534.
16 No. 1-12-1138
As the officer approached, the defendant removed the keys from the ignition and
the officer noticed an uncapped, brown bottle on the passenger-side floorboard of
the defendant’s vehicle. Luedemann, 222 Ill. 2d at 534. The officer asked the
defendant what he was doing there and for his identification. Luedemann, 222 Ill.
2d at 534. The defendant indicated that he was waiting for his girlfriend to return
home but he did not recall the address. Luedemann, 222 Ill. 2d at 534. The officer
observed that the defendant’s speech was slurred and his eyes were bloodshot and
the officer could smell liquor on the defendant’s breath. Luedemann, 222 Ill. 2d at
535. Having observed evidence that the defendant was under the influence of
liquor, the officer radioed for another officer, asked the defendant to exit his
vehicle and instructed the defendant to complete various field sobriety tests, which
indicated to the officer that the defendant was under the influence of liquor.
Luedemann, 222 Ill. 2d at 535. The defendant filed a motion to quash his arrest
and suppress the evidence, which the trial court granted and the appellate court
affirmed. Luedemann, 222 Ill. 2d at 532-33.
¶ 34 The Illinois Supreme Court reversed and found that no seizure occurred
until after the officer had a reasonable suspicion that the defendant was under the
influence of liquor and had operated a motor vehicle. Luedemann, 222 Ill. 2d at
17 No. 1-12-1138
566. The court reasoned that, in viewing the officer’s conduct objectively, he did
not curtail the defendant’s liberty through the use of physical force or a show of
authority. Luedemann, 222 Ill. 2d at 565. The court reasoned that the officer
approached the defendant’s vehicle in a nonoffensive manner, meaning he did not
have his weapon drawn, he did not touch the defendant, he did not use a tone of
voice that indicated compliance was necessary, and he did not activate his
overhead lights. Luedemann, 222 Ill. 2d at 554. The court also found that there
was no seizure because the officer parked his vehicle in the middle of the street
and did not block the defendant’s vehicle from leaving. Luedemann, 222 Ill. 2d at
560. The court also found that the officer’s use of a flashlight was not a seizure
and was merely a practical necessity because it was dark. Luedemann, 222 Ill. 2d
at 563. The court held the officer did not effectuate a seizure until after he
observed evidence of the defendant being under the influence of liquor because no
reasonable person would have felt that they had to comply with the officer’s
requests before that point. Luedemann, 222 Ill. 2d at 565.
¶ 35 Furthermore, in Cosby our supreme court found that the simple fact that that
two “officers approached defendant’s car, one on each side,” did not transform an
encounter into a seizure, where there was no indication that “either of the officers
18 No. 1-12-1138
touched [defendant’s] person, that they displayed their guns or that [the officers]
used language or a tone of voice indicating to [defendant] that he had no choice”
but to comply. Cosby, 231 Ill. 2d at 278.
¶ 36 The Cosby court distinguished the case of People v. Gherna, 203 Ill. 2d 165
(2003), in which our supreme court found defendant was seized when two officers
positioned themselves and their bicycles in such a way as to prevent the defendant
from either exiting her vehicle or driving away; and then questioned the defendant
about her identity and asked her to exit her vehicle. Cosby, 231 Ill. 2d at 279. The
Cosby court distinguished Gherna on the ground that, in Cosby, there was no
evidence that the officers were trying to “box” in defendant’s vehicle. Cosby, 231
Ill. 2d at 280.
¶ 37 In the case at bar, the totality of Officer Wood’s conduct, before he
observed evidence that defendant was under the influence of liquor, was not
objectively coercive. While unlike Luedemann, in this case, Officer Wood did
activate his emergency lights, he did so as he cut across four lanes of traffic at
night. His use of emergency lights was similar to the use of a flashlight in
Luedemann, in that both were prompted by necessity: the Luedemann officer's
need to see at night; and the necessity of the officer in the case at bar to be seen by
19 No. 1-12-1138
others at night. Luedemann, 222 Ill. 2d at 563 (use of flashlight at night was not a
seizure but a practical necessity). In addition, the Illinois Supreme Court has not
yet addressed whether an officer's activation of his emergency lights automatically
constitutes a seizure. People v. McDonough, 239 Ill. 2d 260, 271 (2010) (“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.”).3
¶ 38 In the case at bar, defendant was already voluntarily parked and did not stop
because he observed Officer Wood’s emergency lights. The officer activated his
emergency lights only after defendant had parked in the roadway without his
3 In People v. Daniel, 2013 IL App (1st) 111876, this court held that, when a police officer activated the emergency equipment on his marked police vehicle and forced a moving vehicle to stop at the curb, those actions constituted a Terry stop. However, the case at bar is distinguishable because it does not involve the stop of a moving vehicle but rather concerns an already stopped vehicle that was parked in the road. In People v. Cash, 396 Ill. App. 3d 931, 949 (2009), the appellate court held that the activation of emergency lights and siren constituted a seizure. However, that case is distinguishable, because it involved three police vehicles, it occurred during the daytime, and the use of emergency equipment was not prompted by any safety concerns. Cash, 396 Ill. App. 3d at 935, 940. By contrast, in the case at bar, the officer had safety concerns with respect to other vehicles coming up in the dark, upon a police vehicle making a U-turn across multiple lanes of traffic and upon defendant parked without hazard lights on a roadway.
20 No. 1-12-1138
hazard lights on and while the officer was making a U-turn. A reasonable person
would not have believed that he had to comply with Officer Wood's requests,
simply because the officer activated his emergency lights while making a U-turn
across four lanes of traffic at night. Officer Wood’s conduct after exiting his
vehicle, but before observing evidence of intoxication, did not rise to the level of a
seizure where he did not draw his weapon, did not touch defendant, and did not
use language or a tone of voice to indicate defendant must comply with his
requests. Luedemann, 222 Ill. 2d at 554; Cosby, 231 Ill. 2d at 278. Officer Wood
parked behind defendant’s vehicle and did not block defendant from exiting his
vehicle. Cosby, 231 Ill. 2d at 280 (no evidence that officers were trying to "box"
in defendant's vehicle).
¶ 39 In one line in his brief, defendant argues that the officer also "shone a
spotlight onto [defendant's] vehicle." However, there was no testimony about a
spotlight, and the arguments and ruling below concerned solely whether the
officer's activation of his emergency lights and "horn," or siren, constituted a
seizure. In addition, defendant concedes in his brief to this court that the trial
court found a seizure based on the officer's "activation of his emergency lights and
blowing of his horn." Thus, the question on appeal before us is whether, under the
21 No. 1-12-1138
singular facts and circumstances before us, the activation and the prompt
deactivation of emergency equipment constituted a seizure for fourth amendment
purposes.
¶ 40 For the reasons discussed above, we conclude that the officer's brief
activation of his emergency lights and siren, as he crossed over four lanes of
traffic at night to make a U-turn, was necessitated, as the trial court observed, by
safety concerns and did not, by itself, constitute a seizure. We observe that the
officer was not making a stop of a moving vehicle but rather was approaching to
investigate the presence of an already stopped vehicle, in a roadway and without
hazard lights. Under these unique facts and circumstances, we cannot find a
seizure for fourth amendment purposes. Defendant does not argue on appeal that
the officer lacked probable cause to arrest at the point when the officer asked
defendant to exit his vehicle, nor could he. Thus, we must affirm.
¶ 41 CONCLUSION
¶ 42 On appeal, the State argues that the trial court erred as a matter of law in
granting defendant’s motion to quash defendant’s arrest and suppress evidence of
defendant’s statements and field sobriety and Breathalyzer test results because: (1)
a seizure did not occur until the arresting officer observed evidence of defendant
22 No. 1-12-1138
driving while being under the influence of liquor, at which point the arresting
officer had probable cause to arrest defendant; (2) even if a seizure did occur when
the arresting officer activated his emergency lights it was justified under the
community caretaking exception; and (3) the arresting officer had probable cause
to arrest defendant for a traffic violation committed in his presence.
¶ 43 Since we are persuaded, for the reasons discussed above, that no seizure
occurred until the officer had probable cause to arrest, we reverse and remand for
further proceedings.
¶ 44 Reversed and remanded.