People v. Lozano

2023 IL App (4th) 220601-U

• Court: Appellate Court of Illinois
• Decided: May 25, 2023
• Docket: 4-22-0601
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2023 IL App (4th) 220601-U FILED Supreme Court Rule 23 and is May 25, 2023 not precedent except in the NOS. 4-22-0601, 4-22-0602 cons. Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Hancock County CHARLES J. LOZANO, ) Nos. 18TR1318 Defendant-Appellee. ) 19CF64 ) ) ) Honorable ) Rodney G. Clark, ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices Cavanagh and Knecht concurred in the judgment.

ORDER

¶1 Held: The circuit court erred in granting defendant’s motion to suppress.

¶2 The State charged defendant Charles J. Lozano with driving while his license was

suspended and subsequently enhanced the charge to a felony offense based on surrounding

circumstances. Defendant moved to suppress all evidence obtained from law enforcement’s

“unreasonable seizure.” The circuit court granted the motion and suppressed the evidence. The

State appeals, arguing the circuit court’s findings of fact were against the manifest weight of the

evidence and that the court erred as a matter of law in granting the motion to suppress. We reverse

and remand.

¶3 I. BACKGROUND ¶4 At approximately 10 p.m. on the day in question, Officer Rhea Flambeau of the

Carthage Police Department saw a red Ford sedan with Iowa license plates pull off a public street

into a Circle K gas station. Flambeau pulled his squad car into the gas station and observed that

the red Ford was being driven by defendant and had no other passengers. A check of the vehicle’s

registration revealed an active warrant for the registered owner of the vehicle, Scott A. Gilman,

for possession of methamphetamine and driving on a suspended license. Flambeau was able to

obtain defendant’s identification and verify that he was not Gilman, though the circumstances

under which he did so go to the heart of the legal issues presented here. Flambeau then left the gas

station. Later, he ran defendant’s name through police dispatch and learned that his license was

suspended. Approximately two hours later, Flambeau returned to the gas station and found

defendant sitting in the passenger seat of the vehicle. Flambeau issued defendant a misdemeanor

citation for driving while his license was suspended (625 ILCS 5/6-303(a) (West 2018)). The State

subsequently enhanced the charge to a felony offense based on defendant’s eight previous

convictions for driving while his license was suspended and a statutory summary suspension he

was serving at the time of the offense at issue (id. § 6-303(d-3)).

¶5 A. Motion to Suppress

¶6 Defendant filed a motion to suppress all evidence “obtained as a result of his illegal

stop and subsequent arrest.” Defendant argued that Flambeau threatened him with arrest if he did

not produce identification. He alleged this detention was completely unnecessary, as Flambeau

learned or could have learned of Gilman’s description via police dispatch and discovered that

defendant did not match that description. In either scenario, defendant argued that the encounter

violated his fourth amendment rights under the United States Constitution (U.S. Const., amend.

-2- IV). The State argued the stop was reasonable and the request for defendant’s identification was

permissible.

¶7 B. Suppression Hearing

¶8 The circuit court held a hearing on the motion to suppress in May 2022. Defendant

testified in support of his motion, while the State presented the testimony of Flambeau.

¶9 1. Defendant

¶ 10 Defendant testified that on the evening of December 3, 2018, he was purchasing

gas at the Circle K gas station in Carthage, Illinois. He was on his way into the gas station when

he encountered Flambeau. Flambeau stepped in front of him and asked if he was the registered

owner of the red Ford sedan. Defendant responded he was not, and Flambeau then requested his

identification. Defendant responded “no,” because he had “done nothing wrong.” He tried to walk

past Flambeau, but Flambeau stepped in front of him again “with his hand on his hip by his pistol”

and said “that if I didn’t produce my [identification] right then, that I would be going to jail.”

Defendant produced his identification, and after reviewing it, Flambeau said he was “free to go.”

¶ 11 Defendant testified that the vehicle belonged to Gilman, whom he described as

“[a]pproximately 5’10”, about 200 pounds, balding, older than I am.” Defendant described his own

physical stature as “5’4”, about 120 [pounds], long hair” and stated that he looked nothing like

Gilman.

¶ 12 Between an hour to two hours after the initial encounter, defendant was sitting in

the passenger seat of the Ford at the Circle K, waiting “for a ride to come pick [him] up,” when

Flambeau approached the vehicle and removed defendant from the passenger seat and informed

him that he was under arrest for driving without a license.

-3- ¶ 13 On cross-examination, defendant admitted he was the only person in the vehicle

and that nobody else traveled with him to the gas station.

¶ 14 2. Officer Flambeau

¶ 15 After the circuit court denied the State’s request to find that defendant had failed to

establish a prima facie case, the State called Flambeau to testify. As the events in question occurred

more than three years prior, Flambeau needed to review his written report before his testimony.

Flambeau testified that, on the date and time in question, he was on patrol and in uniform. While

he was pulling into the Circle K gas station, he observed a red Ford, with Iowa plates and a single

male occupant, pull into the gas station off of a public street just before he did. Flambeau parked

his vehicle and went into the gas station before returning to the squad car. He then conducted a

check of the Ford’s registration through police dispatch. Dispatch informed him that the owner of

the vehicle, Gilman, had an active warrant for possession of methamphetamine and driving on a

suspended license.

¶ 16 According to Flambeau’s report, he observed defendant go inside the gas station;

Flambeau approached defendant as he returned to the vehicle. From his recollection, Flambeau

asked defendant if he was the registered owner of the vehicle, and defendant responded that

Gilman, not defendant, was the owner. Flambeau then asked defendant for verification of his

identity and, to Flambeau’s memory, “[defendant] just willingly provided me with his

identification.” Flambeau did not recall any type of confrontation or threat of arrest. He did not

take defendant at his word that he was not the registered owner of the vehicle, as “people with

warrants often lie.” Once he realized defendant was not the registered owner, he returned the

identification and left the gas station.

-4- ¶ 17 Flambeau said that if he requested identification from a person in a consensual

encounter and the person refused, his practice was to move on without threatening arrest. Only if

a person was seized and refused a request to provide identification would he threaten arrest for

obstructing identification. If the individual did not have a photographic identification card on their

person, he would provide dispatch with the name and birthdate of the individual to confirm the

physical description matched the information provided. He did not recall telling defendant he

would be placed under arrest for obstructing identification, and his report did not indicate he asked

dispatch for defendant’s physical description based on name and birthdate.

¶ 18 Flambeau subsequently ran defendant’s information through dispatch and

discovered his license was suspended. He returned to the gas station and obtained defendant’s

consent to search his person and the vehicle. Defendant was read his Miranda rights (see Miranda

v. Arizona, 384 U.S. 436 (1966)) and admitted to driving to the gas station. Defendant was issued

a citation and released with a notice to appear.

¶ 19 On cross-examination, Flambeau clarified that he saw defendant pull into the gas

station and that he parked at the same pump on the opposite side, so he would have observed

defendant in the driver’s seat out of the squad car’s passenger window. When he ran the

registration, he was not given the description of Gilman, nor did he ask for it, even though he had

an opportunity to do so. Once he was informed the registered owner had an active warrant, he

approached defendant.

¶ 20 C. Circuit Court’s Order

¶ 21 In a written opinion, the circuit court found defendant’s version of the encounter

more credible, as there was no indication Flambeau had an independent recollection of the events

and instead testified based on his written report. Further, the court found that Flambeau conducted

-5- a valid investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), when he asked defendant

if he was the registered owner of the Ford, as there was reasonable, articulable suspicion of a crime

because the registered owner of the vehicle had an active warrant and a suspended license.

However, when defendant initially refused to produce his license, Flambeau “changed the

dynamics” of the Terry stop by threatening to arrest him. At this point, the court concluded that

Flambeau should have contacted dispatch for the physical description of Gilman. Upon receiving

the description, Flambeau would have realized that defendant was not Gilman, and the encounter

would have ended without defendant providing his name or identification. The court was

“troubled” because the description of Gilman was readily available to Flambeau, there was ample

time to ask for the description, and defendant did not “even come close to matching that

description.” Accordingly, Flambeau’s actions went beyond the scope of a Terry stop, and the

“encounter should have never taken place.” The court granted defendant’s motion to suppress.

¶ 22 The State timely filed a certificate of impairment, and this appeal followed.

¶ 23 II. ANALYSIS

¶ 24 The State argues that the circuit court erred when assessing the credibility of the

witnesses and compounded this error with the “almost non-existent” reasoning for placing less

weight on Flambeau’s testimony. However, even if the court did not err in assessing credibility,

and defendant was seized, the request for defendant’s identification was proper, and there was no

requirement that a description of the registered owner of the red Ford sedan needed to be requested

before approaching defendant.

¶ 25 In reviewing the circuit court’s ruling on a motion to suppress, we employ a

bifurcated standard of review. People v. Hill, 2020 IL 124595, ¶ 14 (citing Ornelas v. United

States, 517 U.S. 690 (1996)). The circuit court’s factual findings are accorded great deference, and

-6- a reviewing court will reverse only if those findings are against the manifest weight of the

evidence. Id. “This deferential standard of review is grounded in the reality that the circuit court is

in a superior position to determine and weigh the credibility of the witnesses, observe the

witnesses’ demeanor, and resolve conflicts in their testimony.” People v. Jones, 215 Ill. 2d 261,

268 (2005). “However, this court may assess the established facts in relation to the issues and draw

our own conclusions when deciding what relief, if any, should be granted.” Hill, 2020 IL 124595,

¶ 14. Accordingly, the circuit court’s ultimate ruling as to whether suppression is warranted is

reviewed de novo. Id.

¶ 26 Despite the State’s speculative arguments to the contrary, we largely accept the

circuit court’s findings of fact and note that the court found that Flambeau had a reasonable,

articulable suspicion that criminal activity was afoot “because the registered owner was suspended

and there was a warrant for his arrest.” (Of course, this is an acknowledgement that Flambeau

witnessed defendant driving or in constructive control of the vehicle, and to the extent the opinion

of the court could be read to the contrary, the evidence of such a conclusion is so unreasonable,

improbable, and unsatisfactory, that a different conclusion is clearly required.)

¶ 27 On the question of whether the law supports suppression of the evidence in this

case, the issue as identified by the parties is whether the request for identification under threat of

arrest “change[d] the dynamics” of the stop and whether Flambeau was required to obtain the

description of Gilman before taking this step.

¶ 28 The fourth amendment of the United States Constitution provides, “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated” (U.S. Const., amend. IV) and is applicable to the states through

the fourteenth amendment. See Elkins v. United States, 364 U.S. 206, 213 (1960).“[T]he ultimate

-7- touchstone of the Fourth Amendment is ‘reasonableness’ ” (Brigham City, Utah v. Stuart, 547 U.S.

398, 403 (2006)), and the functional purpose of the amendment is the imposition of “a standard of

reasonableness upon the exercise of discretion by law enforcement officers to safeguard the

privacy and security of individuals against arbitrary invasions” (People v. McDonough, 239 Ill. 2d

260, 266 (2010) (citing Delaware v. Prouse, 440 U.S. 648, 653-54 (1979))). Generally, courts will

suppress evidence obtained in violation of the fourth amendment pursuant to the

fruit-of-the-poisonous-tree doctrine, an outgrowth of the exclusionary rule, providing that any

evidence obtained by exploiting a fourth amendment violation is prohibited. People v. Bonilla,

2018 IL 122484, ¶ 35.

¶ 29 “Reasonableness under the fourth amendment generally requires a warrant

supported by probable cause.” People v. Sorenson, 196 Ill. 2d 425, 432 (2001). An exception to

the warrant requirement was promulgated by the United States Supreme Court in Terry, in that “a

police officer may stop and detain a person for temporary questioning, absent probable cause to

arrest, if the officer has a reasonable and articulable suspicion the person is committing, has

committed, or is about to commit a crime.” People v. Austin, 365 Ill. App. 3d 496, 503 (2006).

“[T]he reasonableness of such seizures depends on a balance between the public interest and the

individual’s right to personal security free from arbitrary interference by law officers.” United

States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

¶ 30 Initially, the circuit court’s finding that defendant was seized when Flambeau

“began his inquiry” was error. It is well established that not every encounter between police and a

private citizen results in seizure. Instead, such encounters have been divided into three categories:

“ ‘(1) arrests, which must be supported by probable cause; (2) brief investigative

detentions, commonly referred to as “Terry stops,” which must be supported by

-8- reasonable, articulable suspicion of criminal activity; and (3) consensual

encounters, which involve no coercion or detention and thus do not implicate the

fourth amendment.’ ” People v. Eyler, 2019 IL App (4th) 170064, ¶ 26 (quoting

People v. Lake, 2015 IL App (4th) 130072, ¶ 35).

¶ 31 The United States Supreme Court has repeatedly held that “a seizure does not occur

simply because a police officer approaches an individual and asks a few questions” (Florida v.

Bostick, 501 U.S. 429, 434 (1991)); as long as “a reasonable person would feel free ‘to disregard

the police and go about his business,’[citation] the encounter is consensual and no reasonable

suspicion is required” (id. (quoting California v. Hodari D., 499 U.S. 621, 628 (1991))). Generally,

approaching an individual and asking them questions and requesting identification by itself does

not constitute a seizure. Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion).

¶ 32 Here, we believe that the facts as found by the circuit court do not support the

conclusion that defendant was seized when Flambeau began his inquiry. Asking defendant his

name did not raise this encounter to the level of a Terry stop. Application of the Mendenhall factors

to the totality of the circumstances also does not lead to the conclusion that defendant was seized

during the initial request for identification. See United States v. Mendenhall, 446 U.S. 544, 554

(1980) (applying the following factors to in evaluating whether a seizure occurred without the

person attempting to leave: (1) the threatening presence of several officers; (2) the display of a

weapon by an officer; (3) some physical touching of the person; or (4) using language or tone of

voice compelling the individual to comply with the officer’s requests). We note that, after

defendant disregarded the initial request for identification, he attempted to step around Flambeau

and go about his business; this is a clear indication that defendant felt free to leave the encounter.

-9- ¶ 33 Nonetheless, we agree that the encounter ripened into a Terry stop—a temporary

investigatory seizure—once Flambeau made it clear that defendant would not be permitted to leave

without identifying himself and verifying that information. The parties disagree as to whether

Flambeau exceeded the allowable scope of the Terry stop and employed the least intrusive

investigative means necessary to dispel his suspicions. Both the State and defendant point to a

number of cases attempting to analogize this situation to the holdings of courts evaluating traffic

stops, not street stops. See, e.g., People v. Cummings, 2016 IL 115769; Rodriguez v. United States,

575 U.S. 348 (2015); State v. Martinez-Arvealo, 340 Ga. App. 271, 797 S.E. 2d 18 (Ga. Ct. App.

2017). We find it unnecessary to engage in an analysis of these arguments as the matter is disposed

of on a straightforward evaluation of Terry principles. See Blagden v. McMillin, 2023 IL App (4th)

220238, ¶ 40 (noting de novo review requires the court to consider the matter anew as if the case

had not been heard before and no deference to the circuit court’s conclusions or rationale is

required).

¶ 34 The evaluation of a Terry stop entails a dual inquiry in deciding whether a law

enforcement officer’s investigatory detention is reasonable: (1) “whether the officer’s action was

justified at its inception” and (2) “whether it was reasonably related in scope to the circumstances

which justified the interference in the first place.” Terry, 392 U.S. at 19-20. The officer’s conduct

is judged by an objective standard, which analyzes whether the facts known to the officer at the

moment of the stop justify the action taken. People v. Hackett, 2012 IL 111781, ¶ 29.

¶ 35 In considering the first aspect of the foregoing inquiry, it is apparent in this case

that Flambeau was justified in initiating a Terry stop. The knowledge that the registered owner of

a vehicle is subject to seizure for a violation of law or that their license was revoked or suspended

is sufficient on its own to give an officer reasonable suspicion to detain the driver of a vehicle or

- 10 - its occupants. See Prouse, 440 U.S. at 663; Village of Lake in the Hills v. Lloyd, 227 Ill. App. 3d

351, 353 (1992); People v. Barnes, 152 Ill. App. 3d 1004, 1006 (1987). The aforementioned

proposition emanates from the commonsense presumption that the registered owner of a vehicle

is often the driver. Lloyd, 227 Ill. App. 3d at 354; Barnes, 152 Ill. App. 3d at 1006.

¶ 36 Under the second part of the inquiry, the issue here is whether the request for

identification was reasonably related in scope to the circumstances which justified the stop and

whether the officer was required to request a description of Gilman before demanding

identification.

¶ 37 Turning to the request for defendant’s identification under threat of arrest, United

States Supreme Court decisions “make clear that questions concerning a suspect’s identity are a

routine and accepted part of many Terry stops.” Hiibel v. Sixth Judicial District Court of Nevada,

Humboldt County, 542 U.S. 177, 186 (2004) (collecting cases). We find that demanding defendant

to disclose his identity under threat of arrest did not take the encounter beyond the bounds of Terry.

The entire purpose of the encounter in this case was to ascertain the identity of the individual

driving the vehicle. The principles of Terry “permit a State to require a suspect to disclose his

name in the course of a Terry stop.” Hiibel, 542 U.S. at 187. Illinois has codified the principles of

Terry via statute, requiring the disclosure of identity by law. See 725 ILCS 5/107-14 (West 2018).

“The threat of criminal sanction helps ensure that the request for identity does not become a legal

nullity.” Hiibel, 542 U.S. at 188. Accordingly, Flambeau could compel defendant to produce his

identification under threat of arrest and did not “change the dynamics” or exceed the scope of the

Terry stop. See People v. Jenkins, 2021 IL App (1st) 200458, ¶ 64.

- 11 - ¶ 38 Finally, we turn to whether failing to request the description of Gilman from police

dispatch ran afoul of Terry’s mandate that the least intrusive investigative means possible be

employed to dispel an officer’s suspicion.

“A court making this assessment should take care to consider whether the police

are acting in a swiftly developing situation, and in such cases the court should not

indulge in unrealistic second-guessing. [Citation.]. A creative judge engaged in

post hoc evaluation of police conduct can almost always imagine some alternative

means by which the objectives of the police might have been accomplished. But

the fact that the protection of the public might, in the abstract, have been

accomplished by less intrusive means does not, itself, render the search

unreasonable. [Citations.] The question is not simply whether some other

alternative was available, but whether the police acted unreasonably in failing to

recognize or to pursue it.” (Internal quotations omitted.) United States v. Sharpe,

470 U.S. 675, 686-87 (1985).

¶ 39 We find it telling that neither the circuit court in its order nor the parties in their

briefing cites to authority directly on point. Our search has failed to reveal any precedent that

requires an officer to obtain the description of the registered owner of a vehicle with an active

warrant and suspended license when the officer encounters the vehicle being driven by an

individual. Cf. People v. Galvez, 401 Ill. App. 3d 716 (2010) (finding a different result was

warranted when there are two registered owners of a vehicle, only one of whom possessed a

suspended license). In the traffic stop context, this is unsurprising, as checking driver’s licenses

has been found to be an ordinary inquiry incident to the stop and is accepted as a valid practice.

Rodriguez, 575 U.S. at 355. These inquiries are allowed even once reasonable suspicion has

- 12 - dissipated. See People v. Hernandez, 2012 IL App (2d) 110266, ¶ 7; Cummings, 2016 IL

115769, ¶ 18.

¶ 40 Under the facts as found by the circuit court, Flambeau was made aware that the

registered owner of a vehicle had an active warrant and a suspended license. The name of the

registered owner in this case is one that is commonly identified as corresponding to a male, and

Flambeau observed a male occupant driving the car. When defendant left his car to pay for fuel,

Flambeau decided to act, as he had reasonable suspicion based on the totality of the circumstances

Gilman was driving the vehicle. See Prouse, 440 U.S. at 663; Lloyd, 227 Ill. App. 3d at 353;

Barnes, 152 Ill. App. 3d at 1006. Flambeau’s reasonable suspicion did not dissipate after

defendant’s denial that he was Gilman, and he was entitled to require defendant’s identification

pursuant to Terry. We believe the inquiry here centers on whether the information known to the

officer was sufficient to justify his actions; we decline to flip the inquiry and focus not on what

was known, but on what other information might have been learned. Doing so would represent the

kind of post hoc evaluation the Court in Sharpe cautioned against.

¶ 41 The touchstone of the fourth amendment is reasonableness, and we cannot say that

in light of the circumstances and information known, Flambeau was unreasonable in approaching

defendant without obtaining Gilman’s description or requesting the description after defendant’s

initial refusal to provide identification. The momentary seizure of defendant was based on

reasonable suspicion, sufficiently limited in scope to satisfy the conditions of an investigative

seizure, and diligently pursued in a manner that was likely to quickly confirm or dispel Flambeau’s

suspicions. See People v. Hardy, 142 Ill. App. 3d 108, 114 (1986).

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we reverse the judgment of the circuit court.

- 13 - ¶ 44 Reversed and remanded.

- 14 -