People v. Schmillen

2020 IL App (3d) 180097-U

• Court: Appellate Court of Illinois
• Decided: June 19, 2020
• Docket: 3-18-0097
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

2020 IL App (3d) 180097-U

Order filed June 19, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0097 v. ) Circuit No. 14-CF-150 ) MICHAEL ANDREW SCHMILLEN, ) Honorable ) Lisa Y. Wilson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE WRIGHT delivered the judgment of the court. Presiding Justice Lytton and Justice O’Brien concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The court properly denied defendant’s motion to suppress evidence as the arresting officer had reasonable suspicion to believe that defendant had committed a traffic violation. Defendant’s convictions violate the one-act, one-crime rule as they derive from the same physical act.

¶2 Defendant, Michael Andrew Schmillen, appeals from his two convictions for aggravated

driving under the influence of alcohol (aggravated DUI). Defendant argues: (1) the Peoria

County circuit court erred by denying his motion to suppress evidence, and (2) one of his convictions must be vacated under the one-act, one-crime rule. We affirm in part and remand

with directions.

¶3 I. BACKGROUND

¶4 The State charged defendant by indictment with two counts of aggravated DUI (625

ILCS 5/11-501(d)(2)(B) (West 2014)). Count I alleged defendant, who had two prior DUIs,

knowingly operated a Suzuki Katana motorcycle on Main Street in Peoria while he was under

the influence of alcohol. Count II alleged defendant, who had two prior DUIs, operated a Suzuki

Katana motorcycle on Main Street in Peoria while the alcohol concentration in his blood or

breath was 0.08 or more. The court appointed the public defender to represent defendant.

¶5 During the pretrial proceedings, defense counsel filed a motion to suppress evidence and

a motion in limine—to exclude evidence of the field sobriety tests because it was conducted on a

sloping surface.

¶6 The cause first proceeded to a hearing on defendant’s motion in limine. Defense counsel

called Walter Greenberg to testify. Greenberg and defendant were friends, and defendant asked

Greenberg to bring a level to the scene of the traffic stop. Greenberg used his level to measure

the slope of the scene and took photographs of the scene. Greenberg described the area as “a

slanting driveway.”

¶7 The State called Illinois State Trooper Jake Duro to testify. Duro became a trooper in

May 2009. At the time of defendant’s stop, Duro had participated in over 150 DUI arrests. On

the night of June 9, 2013, Duro saw and heard a motorcycle squeal its tire as it traveled through

the intersection of Main and Madison Streets. Duro described the motorcycle as a “Katana” and a

“sport bike.” Duro stopped the motorcycle near the intersection of Main and Globe Streets. Duro

identified defendant as the driver of the motorcycle. Defendant said he made “a stupid move” by

2 squealing his tire in front of Duro. Duro smelled the odor of an alcoholic beverage on

defendant’s breath. Duro suspected defendant was under the influence of alcohol and asked him

to perform several field sobriety tests. Duro attempted to find the flattest surface possible and

directed defendant to perform the field sobriety tests on a nearby sidewalk. Duro also performed

a breath-alcohol test at the scene.

¶8 On cross-examination, Duro said he was half a block to one block away from the

motorcycle when he first saw it. Duro said the “sport bike” was “unequivocally” the motorcycle

that had squealed its tire. Duro did not remember seeing another motorcycle next to defendant

either at the time of the tire squeal or immediately before the traffic stop.

¶9 The State also introduced into evidence the video recording of the traffic stop. The video

did not record the tire squeal, but it shows Duro enter his patrol car, travel down Main Street and

catch up to two motorcycles that are stopped at a traffic light. The motorcycle at the front of the

line had saddle bags and the driver is seated in an upright position. The second motorcycle does

not have saddle bags and the driver is seated in a leaning forward position. When Duro activates

his overhead lights, the second motorcycle pulls over in an area with an inclined drive.

¶ 10 The court denied defendant’s motion in limine.

¶ 11 At the hearing on the motion to suppress, Duro testified consistent with his testimony at

the prior hearing, that he saw and heard a motorcycle squeal its tire through the intersection of

Main and Madison Streets. Duro did not see any other motorcycles at that time. Duro stopped the

motorcycle near the intersection of Main and Globe Streets. Defendant drove the motorcycle,

and Duro noticed a strong odor of an alcoholic beverage emanating from defendant. Duro also

noted defendant’s speech was slurred. Defendant told Duro that he had been drinking. Defendant

also told Duro that squealing his tire “was stupid.” Duro conducted field sobriety tests and a

3 breath-alcohol test. Defendant had a 0.142 blood alcohol content (BAC). Duro arrested

defendant due to defendant’s performance on the field sobriety tests.

¶ 12 During Duro’s testimony, defense counsel played the video recording from the dash

camera in Duro’s patrol car. While watching the recording, Duro restated he did not recall seeing

two motorcycles, but noted the video showed two motorcycles. Duro said the motorcycles were

distinct from one another as one was a “sport bike,” a Suzuki Katana, and the other was a “full-

dressed road king-style Harley Davidson.” Duro forgot about the second motorcycle because he

“tunnel-visioned” on the sport bike. Duro explained it would have been more difficult for the

Harley-Davidson motorcycle to squeal its tire, and he “visibly saw which bike squealed its tires

and went by, [and] knew it was a sport bike.”

¶ 13 While testifying for the State, Duro said he temporarily lost sight of the motorcycle as he

entered his patrol car, but he “stopped the vehicle that [he] saw.” Duro explained that when he

observes a traffic violation, he makes a mental note of the driver’s appearance. In this case, he

noted the offending motorcycle driver wore a backwards hat. Duro stopped the same individual,

who was wearing a backwards hat while riding a sport bike.

¶ 14 The court denied defendant’s motion to suppress finding Duro had reasonable suspicion

to stop defendant for squealing the tire on his motorcycle. The court noted the stop occurred a

“very short distance” from the location where the traffic infraction occurred, defendant admitted

to squealing his tire, the field sobriety tests indicated several clues of impairment, and the breath-

alcohol test indicated defendant’s BAC was more than 0.08.

¶ 15 The evidence at trial showed Duro stopped defendant for squealing his tire. Duro noticed

defendant’s breath smelled of an alcoholic beverage, and his speech was slurred. Duro

4 administered a series of field sobriety tests, and defendant exhibited several clues of impairment.

A breath-alcohol test indicated that defendant’s BAC was greater than 0.08.

¶ 16 The jury found defendant guilty of both charges. The court imposed a sentence of 24

months’ probation on both charges. Defendant appeals.

¶ 17 II. ANALYSIS

¶ 18 A. Motion to Suppress Evidence

¶ 19 Defendant argues the court erred by denying his motion to suppress evidence because

Duro did not have reasonable suspicion to initiate a traffic stop based only on a sound. We find

Duro properly relied on his years of experience to: differentiate the two motorcycles, determine

the sport bike made the tire squeal, and stop the motorcycle that defendant was driving.

¶ 20 We apply a two-part standard of review to the circuit court’s ruling on defendant’s

motion to suppress evidence. People v. Gaytan, 2015 IL 116223, ¶ 18. The court’s findings of

fact are entitled to great deference and will not be reversed unless they are against the manifest

weight of the evidence. People v. Hackett, 2012 IL 111781, ¶ 18. We review de novo the court’s

ultimate legal ruling of whether reasonable suspicion or probable cause exists and whether

suppression is warranted. Id.

¶ 21 The fourth amendment to the United States Constitution guarantees a citizen’s right to be

free from unreasonable searches and seizures. U.S. Const., amend. IV. A traffic stop constitutes a

seizure and is subject to the fourth amendment’s reasonableness requirement. People v. Close,

238 Ill. 2d 497, 504-05 (2010). An officer’s decision to stop an automobile satisfies this

reasonableness requirement where the officer had probable cause to believe a traffic violation

has occurred. Hackett, 2012 IL 111781, ¶ 20 (citing Whren v. United States, 517 U.S. 806, 810

(1996); People v. McDonough, 239 Ill. 2d 260, 267 (2010)). However, a traffic stop may also be

5 reasonable where it is supported by “ ‘reasonable, articulable suspicion’ that justifies an

‘investigative stop.’ ” Id. (quoting People v. Gonzalez, 204 Ill. 2d 220, 227 (2003), overruled on

other grounds by People v. Harris, 228 Ill. 2d 222, 244 (2008)). An investigatory stop allows an

officer to briefly investigate the circumstances that provoked his suspicions and to confirm or

dispel that suspicion. Close, 238 Ill. 2d at 505. “In judging a police officer’s conduct, a court will

apply an objective standard and will determine whether the facts available to the officer at the

moment of the seizure would lead an individual of reasonable caution to believe that the action

taken by the officer was appropriate.” People v. Little, 2016 IL App (3d) 130683, ¶ 16.

¶ 22 In this case, Duro had reasonable suspicion to conduct a traffic stop based on his belief

that defendant had committed the traffic infraction of squealing the tire on his motorcycle. See

625 ILCS 5/11-505 (West 2014). Duro saw what he described as a sport bike squeal its tire as it

passed through the intersection of Main and Madison Streets. From his training and experience,

Duro was able to differentiate the two motorcycles that were in the intersection at the time of the

noise and determine that the sport bike made the noise. Duro then focused on the offending

motorcycle and noticed the driver was wearing a backwards hat. As a result of the physical

differences between the two motorcycles and Duro’s view of the offending driver, his suspicion

narrowed to only one of the motorcycles. Duro stopped the sport bike that was driven by the

individual wearing a backwards hat. Ultimately, Duro’s suspicion proved correct as defendant

admitted that he had squealed his tire in front of Duro’s location.

¶ 23 Throughout the course of Duro’s testimony, his description of the offending motorcycle

did not change. Although he initially did not recall the second motorcycle, this likely was the

result of his focus on the offending motorcycle. Thus, the court’s factual findings were not

against the manifest weight of the evidence.

6 ¶ 24 We note that the tire squeal, by itself, provided Duro with the reasonable suspicion of a

traffic violation to conduct an investigatory stop of either motorcycle. At that point, Duro could

investigate whether the stopped motorcycle had committed the offense. See, e.g., Hackett, 2012

IL 111781, ¶ 29 (deputy’s observations that defendant twice deviated from his lane of travel

justified an investigatory traffic stop). We conclude that the court did not err when it denied

defendant’s motion to suppress evidence.

¶ 25 B. One-Act, One-Crime

¶ 26 Defendant argues one of his convictions must be vacated under the one-act, one-crime

doctrine because both convictions derive from a single physical act. The State agrees that one of

defendant’s aggravated DUI convictions must be vacated but asks that we remand the cause with

directions for the circuit court to determine which offense is most serious. After reviewing the

record, we find defendant’s two convictions derive from the same physical offense, and

therefore, one is subject to vacatur.

¶ 27 The one-act, one-crime rule prohibits the imposition of multiple convictions that are

based on the same physical act. People v. King, 66 Ill. 2d 551, 566 (1977). “[A]n ‘act’ is defined

as any overt or outward manifestation that will support a separate conviction.” People v. Almond,

2015 IL 113817, ¶ 47. “[U]nder the one-act, one-crime doctrine, [a] sentence should be imposed

on the more serious offense and the less serious offense should be vacated.” People v. Artis, 232

Ill. 2d 156, 170 (2009). The issue of whether a conviction violates the one-act, one-crime rule is

a question of law that is subject to de novo review. Id.

¶ 28 In the present case, both of defendant’s aggravated DUI convictions derive from the same

physical act: defendant drove a motorcycle while he was under the influence of alcohol.

Therefore, both charges cannot stand under the one-act, one-crime rule. As we are unable to

7 discern which of these charges is less severe and subject to vacatur, we remand the cause with

directions for the circuit court to vacate the less serious conviction.

¶ 29 III. CONCLUSION

¶ 30 The judgment of the circuit court of Peoria County is affirmed in part and remanded with

directions.

¶ 31 Affirmed in part and remanded with directions.