2018 IL App (2d) 170135
No. 2-17-0135
Opinion filed March 14, 2018
___________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellant, ) ) Nos. 16-DT-455 v. ) 16-CM-1269 ) JOSEPH P. MEO, ) Honorable ) Philip G. Montgomery, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.
OPINION
¶1 Defendant, Joseph P. Meo, was arrested and charged with driving under the influence of
alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2016)) and obstructing a peace officer (720 ILCS
5/31-1 (West 2016)). Defendant’s driving privileges were summarily suspended (625 ILCS
5/11-501.1(a) (West 2016)). Defendant petitioned to rescind the summary suspension. In
addition, defendant filed a motion to quash his arrest and suppress evidence, arguing that there
was no basis for the stop and that the arrest was not supported by probable cause. Following a
hearing, the trial court granted defendant’s motion. 1 The State filed a certificate of impairment
and timely appealed (see Ill. S. Ct. R. 604(a)(1) (eff. Mar. 8, 2016)). We reverse and remand.
¶2 I. BACKGROUND
¶3 A hearing on defendant’s motion to quash his arrest and suppress evidence took place on
February 1, 2017. Sycamore police officer Greyson Scott was the sole witness. Scott testified
that he had been a police officer for just over two years. On December 10, 2016, at about 8:30
p.m., Scott was dispatched to Casey’s General Store (Casey’s), located at the intersection of
Plank Road and Main Street, to investigate a report of a possible drunk driver. It was snowing
heavily at the time. According to Scott, a clerk at Casey’s called dispatch to report a possible
drunk driver in the building. Based on the clerk’s report, dispatch then advised Scott that “the
male driver was driving a white Scion. He had driven up to the front of the building, hitting the
curb, going over the curb, and the store clerk described it as almost going into the building.”
Scott testified that, although he never spoke directly with the clerk, his sergeant did. After
receiving the call from dispatch, Scott drove to Casey’s, but rather than entering the Casey’s
parking lot, Scott parked his squad car in a parking lot east of Casey’s so that he would have a
better view of the vehicles parked in the Casey’s parking lot. Upon his arrival, Scott saw a white
Scion parked in the Casey’s parking lot, and “fairly soon” thereafter he saw a white male, later
identified as defendant, enter the vehicle.
¶4 Scott testified that defendant proceeded to exit the Casey’s parking lot, heading toward
Plank Road, with his vehicle’s headlights on, and drove in front of Scott’s vehicle. According to
Scott, defendant was on a frontage road that was not marked as a city roadway or maintained by
1 Defendant’s petition to rescind the summary suspension of his driving privileges was
subsequently granted by agreement of the parties and is not at issue in this appeal.
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the city; it was an “exit way” that provided access to Plank Road from Casey’s. As defendant
drove past Scott’s squad car, Scott observed defendant’s headlights shut off for a “brief time”
and then turn back on. Scott estimated that the headlights were off for “one to four seconds.”
Scott followed defendant’s vehicle as it proceeded from Casey’s and onto Plank Road. Scott
observed defendant properly signal before entering Plank Road. Scott followed defendant’s
vehicle as it proceeded west toward the intersection of North Main Street and Plank Road. Scott
observed defendant properly enter the left turn lane and properly signal before turning left onto
North Main Street. After following defendant for about 30 seconds and observing defendant
commit no traffic violations, Scott activated the lights on his squad car, and defendant stopped
his vehicle appropriately. Scott stopped defendant’s vehicle based on the blinking headlights and
the original call. A video recording was made from Scott’s squad car camera from just before
the time that defendant’s vehicle passed in front of Scott at Casey’s until the time that Scott
arrested defendant for DUI. The video was played for the court and entered into evidence.
¶5 Scott testified that, after pulling over defendant’s vehicle, he approached the vehicle and
spoke with defendant through the open driver’s-side window. While speaking to defendant,
Scott smelled alcohol on defendant’s breath and noted that defendant’s “eyes were glassy and
bloodshot, his speech was thick-tongued and slurred.” Defendant told Scott that he drank three
beers about six or seven hours earlier. Scott asked defendant for his driver’s license and proof of
insurance. According to Scott, defendant had a hard time getting his driver’s license out of his
wallet and “fumbled his wallet a few times.” Scott testified: “He literally had it in his hands and
he dropped it out onto his lap and picked it back up and was kind of using multiple fingers to
kind of manipulate the wallet in order to open it correctly.” Scott testified that the driver’s
license was located behind a plastic flap and that it took defendant a few tries to pull the license
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out of the wallet. Scott stated that defendant also pulled a credit card out of the wallet and
handed him the credit card instead of his insurance card.
¶6 Scott testified that he decided to perform field sobriety tests on defendant and asked him
to step out of his vehicle. Because of the heavy snowfall and wind, Scott asked defendant to
accompany him to a nearby Jewel pharmacy drive-through pickup area, with an overhang, so that
they could be protected from the snow. Scott testified that, when he asked defendant to exit and
lock his vehicle, defendant did so. Scott agreed that he wrote in his police report that defendant
swayed and seemed unbalanced as he walked. Scott also agreed, however, that the video showed
that defendant had no difficulty walking toward the police car in the deep snow. The video also
showed that defendant, while walking toward the police vehicle, dropped his keys and was able
to pick them up without difficulty. In addition, Scott agreed that, although he testified that he
smelled alcohol on defendant’s breath, he made no such mention on the video.
¶7 Scott transported defendant to Jewel to perform the field sobriety tests. The area under
the overhang was mostly dry with just some blowing snow on the pavement. Scott testified that
he asked defendant for consent to perform the tests and that defendant agreed to participate.
Ultimately, defendant did not perform the tests. Scott testified that he had instructed defendant
four times on how to perform the horizontal gaze nystagmus (HGN) test. Defendant told Scott
several times that he had some physical limitations due to a stroke. The video shows defendant
telling Scott that he suffered a stroke a few months ago. As Scott was instructing defendant on
how to perform the HGN test, defendant told Scott that he needed to have things repeated and
asked Scott to speak slower. Defendant told him that he did not understand. During the test,
defendant again told Scott that he had had a stroke and that he could not do a lot of things. Scott
testified that defendant seemed very confused. Scott agreed that defendant did not have any
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trouble removing his glasses for the test and that defendant did not sway or stumble as he stood
before him during the test. Scott repeatedly attempted to have defendant follow the top of his
finger using only his eyes. Defendant told Scott that he could be having a stroke. When Scott
asked defendant if he needed an ambulance, defendant responded, “I don’t know.”
¶8 Scott testified that he had offered nonstandardized field sobriety tests to defendant
because defendant was unable to complete the HGN test. The video shows Scott asking
defendant whether he had any physical limitations that would prevent him from performing the
one-leg-stand test or the walk-and-turn test. Defendant said yes, because his legs had given out
during his stroke. Scott asked defendant if he wanted to attempt the tests, and when defendant
did not give a responsive answer, Scott told defendant that he assumed that the answer was no.
Scott then offered to have defendant perform the alphabet test and asked defendant if he knew
his A-B-Cs. Defendant responded that he “lost all that over the years,” but then quickly asked,
“A-B-C-D-E-F-G-H?” Scott asked defendant to recite the alphabet, starting at B and ending
with O. Defendant said that he did not want to try it. When Scott asked defendant to count,
defendant stated that he could not count anymore. Defendant stated that he had had a stroke and
that his wife had left him.
¶9 The video further shows that, when Scott expressed to defendant that he felt that
defendant was impaired by alcohol and unfit to drive, defendant asked to walk home. Scott then
asked defendant to take a breath test. Defendant replied that he would rather just walk home.
Scott again asked defendant to take a breath test. Defendant stated that he was “in stroke mode.”
When Scott again asked if defendant needed to go to the hospital, defendant said no. Scott
thereafter arrested defendant for DUI.
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¶ 10 The trial court granted defendant’s motion to quash his arrest and suppress evidence,
finding that Scott did not have reasonable suspicion to make an investigatory stop of defendant
and that Scott lacked probable cause to arrest defendant for DUI.
¶ 11 The trial court’s primary basis for granting the motion was the lack of reasonable
suspicion to justify the stop. With respect to the tip, the trial court stated that it did not know
who the tipster was or his or her basis of knowledge, referring to the tipster as “anonymous.”
The court also noted that the tipster did not provide a sufficient description of the driver of the
vehicle, stating: “They don’t give a description of the person who drove the car, male, female,
white, black, or anything like that, so for all we know, we don’t know if it was the defendant
who potentially almost drove in the Casey’s store.” With regard to the headlight issue, the court
found that the video did not corroborate Scott’s testimony that the headlights were off for up to
four seconds, noting that, “[a]t best,” the lights were off for only two seconds. Moreover, the
court found that the headlights being turned off for two seconds was not a violation of the traffic
code, as it did not occur on a public highway.
¶ 12 As an alternative basis for granting the motion, the trial court found that the DUI arrest
was not supported by probable cause. The court noted that the video showed that defendant was
able to properly turn from private property onto Plank Road and drive down Plank Road to Main
Street, where defendant again made a proper turn. The court acknowledged defendant’s
admission to drinking three beers a number of hours before and Scott’s testimony that
defendant’s eyes were bloodshot. The court disagreed with Scott’s characterization of
defendant’s speech as slurred, finding Scott’s testimony on the issue not credible. The court
noted that, although the video was difficult to hear at points, the court had no difficulty
understanding what defendant was saying. The court also observed that the video showed that
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defendant was able to lock his car, walk to the squad car, remove his glasses, and put his glasses
back on without difficulty. The court also found that, although defendant dropped his keys, he
was able to pick up the keys with no problems, did not sway during the HGN test, and performed
the alphabet test without difficulty.
¶ 13 The State filed a timely notice of appeal and certificate of impairment.
¶ 14 II. ANALYSIS
¶ 15 The State argues that the trial court erred in granting defendant’s motion to quash his
arrest and suppress evidence. According to the State, Scott’s investigatory stop of defendant’s
vehicle was supported by a reasonable suspicion that Scott was committing DUI, and Scott’s
subsequent arrest of defendant for DUI was supported by probable cause.
¶ 16 We apply a two-part standard of review when reviewing the trial court’s ruling on a
motion to quash arrest and suppress evidence. People v. Almond, 2015 IL 113817, ¶ 55. We
afford great deference to the trial court’s findings of fact, and we reverse those findings only if
they are against the manifest weight of the evidence. Id. However, we review de novo the trial
court’s ultimate ruling as to whether suppression is warranted. Id.
¶ 17 We first consider whether the trial court erred in finding that Scott did not have a
reasonable suspicion to stop defendant’s car. A vehicle stop is analyzed under the principles set
forth in Terry v. Ohio, 392 U.S. 1 (1968). People v. Henderson, 2013 IL 114040, ¶ 25. “Terry
authorizes a police officer to effect a limited investigatory stop where there exists a reasonable
suspicion, based upon specific and articulable facts, that the person detained has committed or is
about to commit a crime.” People v. Smulik, 2012 IL App (2d) 110110, ¶ 5. In evaluating
whether a reasonable suspicion existed, a reviewing court should objectively consider whether
information known to the officer at the time of the stop would warrant a person of reasonable
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caution to believe that a stop was necessary to investigate the possibility of criminal activity.
People v. Shafer, 372 Ill. App. 3d 1044, 1048-49 (2007). We note that reasonable suspicion
justifying a Terry stop is a less exacting standard than probable cause to make an arrest. Id. at
1048.
¶ 18 A Terry stop can be based on information received from an informant (People v. Linley,
388 Ill. App. 3d 747, 750 (2009)), under certain circumstances:
“[T]he informant’s tip must bear some indicia of reliability in order to justify the stop.
[Citation.] [A] reviewing court should consider the informant’s veracity, reliability, and
basis of knowledge. [Citation.] Whether a tip is sufficient to support a stop is not
determined according to any rigid test but rather depends on the totality of the
circumstances.” (Internal quotation marks omitted.) Smulik, 2012 IL App (2d) 110110,
¶ 7.
One factor that affects the reliability of a tip is whether the tip is from an anonymous or
identified party. Shafer, 372 Ill. App. 3d at 1050-52. When determining the reliability of an
anonymous tip, courts have considered the following factors: (1) whether there was a
“ ‘sufficient quantity of information’ ” to allow the officer to be certain that the vehicle stopped
was the one identified by the tipster; (2) the time interval between when the police located the
suspect vehicle and when the information was first relayed to the police; (3) whether the tip was
“ ‘based upon contemporaneous eyewitness observations’ ”; and (4) whether the tip was
“ ‘sufficiently detailed to permit the reasonable inference that the tipster has actually witnessed
an ongoing motor vehicle offense.’ ” (Internal quotation marks omitted.) Id. at 1050 (quoting
State v. Sousa, 855 A.2d 1284, 1290 (N.H. 2004)). A call to a police emergency line does not
constitute an “ ‘anonymous’ tip” and should not be viewed “with the skepticism applied to tips
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provided by confidential informants,” because the caller places his or her anonymity at risk. Id.
at 1054. Furthermore, when the tip concerns a possible drunk driver, less corroboration of the tip
is required, because “[a]n intoxicated person behind the wheel of a car presents an imminent
danger to the public that is difficult to thwart by means other than a Terry stop.” Id. at 1052.
¶ 19 We first consider whether the tip from the clerk at Casey’s was sufficiently reliable to
justify the stop of defendant’s vehicle. We determine that it was. First, we note that the trial
court’s findings that the tipster was “anonymous” and that the tip did not sufficiently identify
defendant were against the manifest weight of the evidence. With regard to anonymity, the
testimony clearly established that the clerk telephoned the police, identified the Casey’s at which
he or she was employed, and later spoke directly with a police sergeant. As the clerk was readily
identifiable, the tip was not anonymous. See id. at 1050-52. With regard to the content of the
tip, Scott’s testimony established that the tipster specifically described the driver of the vehicle
as a white male and, in addition, provided the make and color of the vehicle.
¶ 20 Given the fact that the tip was not anonymous, it bears an initial degree of reliability. In
addition, other factors that have been used to evaluate the reliability of anonymous tips further
bolster a finding of reliability here. See id. at 1050. The clerk specified that a white male,
driving a white Scion, hit the curb at Casey’s and almost hit the building; that the driver was in
the store; and that the driver was possibly drunk. Scott arrived at Casey’s shortly after receiving
the call from dispatch. Scott observed a white Scion and fairly soon thereafter observed a white
male enter the vehicle. Thus, it is clear that the tip was reliable in that it was based on
contemporaneous events and provided enough information to allow Scott, who arrived within a
short time of learning of the tip, to identify defendant as the person referred to by the tipster. In
addition, the tip was sufficiently detailed to permit a reasonable inference that defendant was
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committing DUI, given the clerk’s description of defendant’s driving as well as the clerk’s close
proximity to defendant and ability to observe defendant in Casey’s. See id. at 1054-55 (although
record was silent as to what the defendant did to cause the tipster to call the police, the close
proximity during a hand-to-hand exchange between the tipster and the defendant at a drive-
through window supported reliability of the tipster’s assessment that the defendant was
intoxicated).
¶ 21 In addition to the reliability of the tip, Scott observed defendant turn his headlights off
and then back on again as defendant made his way from Casey’s to the public highway. We
disagree with the State that this factor, standing alone, was sufficient to support the investigatory
stop, as defendant was not traveling on the public highway at the time and thus did not violate
section 12-101(a) or 12-201(b) of the Illinois Vehicle Code (Code) (see 625 ILCS 5/12-101(a),
12-201(b) (West 2016)). However, it was certainly a factor for Scott to consider, along with the
other information he had before him.
¶ 22 Defendant argues that our decision in Village of Mundelein v. Minx, 352 Ill. App. 3d 216
(2004), supports the trial court’s order. We disagree. In Minx, the caller simply reported that the
defendant was “ ‘driving recklessly.’ ” Id. at 222. We said that, “without indicating what
observations led him to this conclusion,” this information standing alone did not justify the
investigatory stop. Id. In the instant case, the caller provided enough detail to permit a
reasonable inference that defendant was possibly intoxicated. The clerk saw defendant hit the
curb, go over it, and nearly strike the store building. The clerk then had the opportunity to
observe defendant “in the building” before calling the police.
¶ 23 Finally, we note that, for the purpose of determining the existence of reasonable
suspicion, “[t]he facts should not be viewed with analytical hindsight, but instead should be
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considered from the perspective of a reasonable officer at the time that the situation confronted
him or her.” People v. Thomas, 198 Ill. 2d 103, 110 (2001). Here, at the time of the stop, Scott
was acting on a reliable tip that defendant had driven over a curb and almost hit a building and
was possibly drunk. After locating defendant, Scott observed him blinking his headlights for no
apparent reason.
¶ 24 Based on the totality of the circumstances, we find that the investigatory stop of
defendant’s vehicle was supported by a reasonable suspicion that defendant was committing an
offense, and thus the trial court erred in granting defendant’s motion to quash his arrest and
suppress evidence on this basis.
¶ 25 We next consider whether the trial court erred in finding that Scott lacked probable cause
to arrest defendant for DUI. Probable cause to arrest exists when the totality of the facts known
to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to
believe that the arrestee has committed a crime. People v. Wear, 229 Ill. 2d 545, 563-64 (2008).
Probable cause concerns probabilities and not technicalities. Id. at 564. That is, probable cause
is based on the factual and practical considerations of everyday life upon which reasonable,
prudent people, not legal technicians, act. Id. Probable cause is more than a mere suspicion
(People v. Wingren, 167 Ill. App. 3d 313, 320 (1988)) but less than proof beyond a reasonable
doubt (Wear, 229 Ill. 2d at 564).
¶ 26 The elements of DUI under section 11-501(a)(2) of the Code (625 ILCS 5/11-501(a)(2)
(West 2016)) are: (1) the defendant was driving or in actual physical control of the vehicle and
(2) the defendant was under the influence of alcohol. Here, only the second element is at issue.
¶ 27 There are several pieces of evidence indicating that defendant was under the influence of
alcohol. When considered in their totality, they provided Scott with probable cause to arrest
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defendant for DUI. Scott testified that, when he approached defendant’s vehicle, the window
was down and he smelled the odor of alcohol on defendant’s breath. In addition, defendant
admitting to drinking three beers about six or seven hours earlier. See, e.g., People v. McKown,
236 Ill. 2d 278, 302 (2010) (“[A]ny evidence of alcohol consumption is relevant to the question
of impairment.”). Scott observed that defendant’s “eyes were glassy and bloodshot” and that his
speech was “thick-tongued and slurred.” See Wingren, 167 Ill. App. 3d at 320 (“Probable cause
to arrest a motorist for DUI has been commonly established by the testimony of the arresting
officer, in spite of the defendant’s contradictory testimony, that the motorist had about him or her
the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes.”). Although
the trial court found that defendant was “understandable,” the video supports Scott’s testimony
concerning defendant’s speech. Scott also testified that defendant had a hard time getting his
driver’s license out of his wallet and “fumbled his wallet a few times,” initially giving Scott a
credit card rather than his insurance card.
¶ 28 When Scott asked defendant to take a breath test, defendant responded that he was “in
stroke mode,” yet refused Scott’s offer to call an ambulance. Moreover, when Scott expressed
that he felt that defendant was impaired by alcohol and unfit to drive, defendant asked to walk
home. And when Scott again asked defendant to take the breath test, defendant refused.
Defendant’s refusal to take the breath test and his request to walk home were circumstantial
evidence of his consciousness of guilt and further supported probable cause to arrest. See People
v. Weathersby, 383 Ill. App. 3d 226, 230 (2008) (refusal to take breath test was circumstantial
evidence of the defendant’s consciousness of guilt).
¶ 29 In sum, defendant’s fumbling of his driver’s license and producing a credit card rather
than an insurance card, defendant’s glassy and bloodshot eyes, defendant’s slurred speech, the
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odor of alcohol on defendant’s breath, defendant’s admission to drinking, and defendant’s refusal
to take a breath test would cause a reasonably cautious person to believe that defendant was
impaired.
¶ 30 Defendant’s reliance on People v. Day, 2016 IL App (3d) 150852, and People v. Motzko,
2017 IL App (3d) 160154, does not warrant a different conclusion. In Day, the court found that
the defendant’s consumption of alcohol and glassy and bloodshot eyes were insufficient, without
more, to give rise to probable cause to arrest for DUI. Day, 2016 IL App (3d) 150852, ¶ 38.
Here, as noted, we have more. Moreover, unlike in Day, defendant did not successfully
complete any field sobriety tests. In Day, the court specifically found that, although the field
sobriety tests were improperly administered on a wet, slick surface while it was raining, they
gave no indication that the defendant was suffering from any sort of physical impairment. Id.
¶ 37.
¶ 31 In Motzko, the court affirmed the trial court’s grant of the defendant’s motion to suppress.
Motzko, 2017 IL App (3d) 160154, ¶ 26. There, the arresting officer testified that he had arrested
the defendant based on the odor of alcohol on the defendant’s breath, the defendant’s glassy and
bloodshot eyes, the defendant’s admission to drinking, the fact that the defendant was in an
accident, and the defendant’s performance on the HGN test. Id. ¶¶ 22-25. The officer testified
that the defendant’s performance on the HGN test caused him to believe that the defendant was
impaired. Id. ¶ 25. The trial court found the officer to lack credibility on the issue of
impairment, after concluding that the officer was not properly trained to understand the results of
HGN testing. Id.
¶ 32 Defendant argues that here, as in Motzko, the court had similar credibility concerns. We
find the present case distinguishable, as the trial court’s concerns are not supported by the
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evidence. First, the court questioned Scott’s credibility on the issue of how long defendant’s
headlights were off. Scott estimated that the headlights were off for one to four seconds. The
trial court found that the lights were off for “[a]t best” two seconds. Our view of the video
confirms the trial court’s finding that the lights were off for about two seconds. But we fail to
see how this renders Scott’s testimony of one to four seconds incredible. Second, the trial court
found Scott’s testimony regarding defendant’s speech incredible as well. Scott described
defendant’s speech as “thick-tongued and slurred.” Having viewed the video, we cannot say that
Scott’s description of defendant’s speech was inaccurate. Thus, we find that the trial court’s
credibility concerns do not support affirmance of the court’s ruling.
¶ 33 Accordingly, we hold that Scott had probable cause to arrest defendant for DUI.
¶ 34 III. CONCLUSION
¶ 35 Based on the foregoing, we reverse the judgment of the circuit court of De Kalb County
and remand the cause.
¶ 36 Reversed and remanded.
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