People v. Timmsen

2014 IL App (3d) 120481, 14 N.E.3d 1267

• Court: Appellate Court of Illinois
• Decided: July 25, 2014
• Docket: 3-12-0481
• Status: Unpublished

Opinion

2014 IL App (3d) 120481

Opinion filed July 25, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 9th Judicial Circuit, ) Hancock County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-12-0481 v. ) Circuit No. 11-TR-1274 ) JACOB D. TIMMSEN, ) The Honorable ) Richard H. Gambrell, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________

JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justice Holdridge specially concurred, with opinion. Justice Schmidt dissented, with opinion. _____________________________________________________________________________

OPINION

¶1 The defendant, Jacob Timmsen, was convicted after a stipulated bench trial of driving

while his license was suspended and sentenced to two years’ conditional discharge and 90 days

in the county jail. The defendant appealed, arguing that the trial court erred in denying his

motion to suppress evidence. We reverse.

¶2 FACTS

¶3 The defendant was stopped by police after making a U-turn before a roadside safety

check (also referred to by the parties as a roadblock or a checkpoint). The defendant filed a motion to suppress the evidence obtained as a result of the traffic stop, arguing that the sheriff’s

deputy lacked any cause to conduct the stop.

¶4 At the suppression hearing, the defendant testified that he was driving eastbound on U.S.

Highway 136 at 1:15 am on December 17, 2011, from Iowa to Illinois. He saw a police

roadblock ahead of him, and he made a U-turn at a railroad crossing. The railroad crossing was

the only place to make a U-turn on the four-lane road; the defendant signaled his turn, turned

through the gap in the concrete divider, and proceeded back onto westbound Highway 136.

¶5 Illinois State Police Officer Heath Miller testified that he was a working a roadside safety

check on Highway 136, about 50 feet from the railroad crossing. Miller testified that the railroad

crossing was the only place before the roadblock that was not barricaded where a driver could

turn around and go the other direction. Miller testified that the crossing could not be barricaded

because it was used by trains. Miller heard a vehicle approaching the roadside safety check from

the west, but noticed that the vehicle never reached the checkpoint. Deputy Travis Duffy

stopped the defendant after he had made the U-turn and was travelling westbound on Highway

136. The defendant was arrested for driving while his license was suspended, in violation of

section 6-303(a) of the Illinois Vehicle Code (the Code) (625 ILCS 5/6-303(a) (West 2010)) and

he was also issued a citation for a violation of section 11-706(a) of the Code (625 ILCS 5/11-

706(a) (West 2010)), driving left of center at a railroad crossing.

¶6 The trial court denied the motion to suppress, finding that the defendant’s act of turning

around on railroad tracks approximately 50 feet prior to entering the roadside safety check

provided reasonable articulable suspicion that there was criminal activity to justify the stop.

¶7 Following the denial of the motion to suppress, the parties agreed to a stipulated bench

trial on the license charge. The State did not proceed on the charge of driving left of center at a

railroad crossing. The trial court found the defendant guilty of driving while his license was

-2- suspended. Defendant was sentenced to 24 months’ conditional discharge, with conditions

including fines and fees and 90 days in the county jail. The defendant appealed.

¶8 ANALYSIS

¶9 A stipulated bench trial allows the parties to proceed with the benefit and convenience of

a guilty plea procedure, but avoids the waiver rule, so the stipulated bench trial allows the

defendant to preserve the suppression issue. People v. Scott, 277 Ill. App. 3d 579 (1996). In

reviewing a trial court's ruling on a motion to suppress evidence, we apply a two-part standard

wherein factual findings are reviewed for clear error and will be reversed only if they are against

the manifest weight of the evidence, but the ultimate legal ruling is reviewed de novo. People v.

Luedemann, 222 Ill. 2d 530, 542-43 (2006).

¶ 10 The defendant argues that he did not violate any traffic laws, and the act of driving to

avoid a safety checkpoint, by itself, could not give police articulable suspicion to conduct a

traffic stop. Initially, the State argued that the traffic stop was lawful because the defendant

committed a traffic violation in his attempt to avoid the roadblock. However, at oral argument,

the State conceded that the defendant did not commit a traffic violation. Instead, the State

argued that the defendant’s attempt to avoid the roadblock gave the police articulable suspicion

to conduct the stop.

¶ 11 It is well established that a vehicle stop at a highway checkpoint is a seizure within the

meaning of the fourth amendment. City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). In

the balance between personal liberty and the government interest in safety, such checkpoints are

judged by a standard of reasonableness and are generally allowed if the intrusion is limited and

does not involve an unconstrained exercise of discretion. People v. Long, 124 Ill. App. 3d 1030,

1033-34 (1984). There was no suggestion in this case that the checkpoint was unreasonable.

Thus, if the defendant had chosen to proceed through the checkpoint, he would have been subject

-3- to the stop. Also, if the defendant had stopped his car, and parked at the railroad tracks 50 feet

from the checkpoint, it is likely that he would have been subject to the stop because he was

within the realm of the checkpoint. People v. Long, 124 Ill. App. 3d 1030 (1984) (stopping 100

yards from a checkpoint was within its realm and the police could ask the defendant to produce

his driver's license). The defendant in this case did not stop, and he did not proceed through the

checkpoint. He was stopped by the police after he executed a legal U-turn and was travelling

away from the checkpoint. See 625 ILCS 5/11-802 (West 2010) (U-turns are legal in Illinois, as

long as the turn can be made safely and without interfering with other traffic).

¶ 12 A police officer is entitled to briefly stop a person to investigate if, given the totality of

the circumstances, the officer has specific, articulable facts, taken together with rational

inferences from the facts, that warrant the intrusion. Terry v. Ohio, 392 U.S. 1, 21 (1968);

People v. Ray, 327 Ill. App. 3d 904 (2002). The officer’s basis for the stop must be objectively

reasonable, and not based on inarticulate or unsubstantiated suspicions that criminal activity is

afoot. Ray, 327 Ill. App. 3d at 909-10 (citing Terry, 392 U.S. at 21-22). Since the defendant did

not subject himself to the roadblock, and he committed no traffic violations in doing so, the

question is whether the defendant's act of turning to avoid the roadblock, without more, was

sufficient to give the police officers reasonable suspicion to stop the defendant.

¶ 13 As we noted in People v. Scott, “[w]here a motorist acts to avoid a roadblock, such action

may itself constitute reasonable suspicion that a criminal offense has been or is about to be

committed, thus justifying a stop of the vehicle.” People v. Scott, 277 Ill. App. 3d 579, 584

(1996) (citing State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994) and 4 Wayne R.

LaFave, Search and Seizure § 10.8(a), at 681 (3d ed. 1996)). We cited three examples of where

actions taken to avoid a roadblock may justify a stop: (1) when a vehicle fails to stop at the

roadblock; (2) when a vehicle stops just before the roadblock and the driver and passenger

-4- change places; or (3) when a vehicle avoids the roadblock in a suspicious manner. Scott, 277 Ill.

App. 3d at 584 (citing 4 Wayne R. LaFave, Search and Seizure § 10.8(a), at 681-82 (3d ed.

1996)). However, as we clarified in Scott, the mere act of avoiding a roadblock is generally not

sufficient to constitute reasonable suspicion by itself, and must be coupled with other articulable

facts. Scott, 277 Ill. App. 3d at 584. In finding that a legal turn at an intersection just prior to a

roadblock did not give police reasonable suspicion of criminal activity, we found the reasoning

of Murphy v. Commonwealth, 384 S.E.2d 125 (Va. Ct. App. 1989), to be persuasive. Scott, 277

Ill. App. 3d at 584. Murphy held that it could not sanction a result where every motorist who

turned in sight of a roadblock, for whatever legitimate reason, would be subject to an

investigative detention. Scott, 277 Ill. App. 3d at 584 (citing Murphy, 384 S.E.2d at 129).

¶ 14 Other articulable facts, when considered in light of avoiding police contact, may include

“[h]eadlong flight” upon noticing police, in an area of heavy narcotics trafficking. See Illinois v.

Wardlow, 528 U.S. 119, 124-25 (2000); but cf. Ray, 327 Ill. App. 3d at 910 (in an area that was

not a high crime area for narcotics trafficking, a defendant’s action of exiting the highway, just

prior to signs indicating a drug interdiction checkpoint, did not give police specific, articulable

facts to justify an investigatory stop of the defendant’s vehicle); see also United States v.

Duguay, 93 F.3d 346, 350-51 (7th Cir. 1996) (the fact that police thought that the defendant

turned into a parking lot to avoid a roadblock was only one of four factors that justified the

investigatory stop). Also, as we noted in Scott, the avoidance of a roadblock in a suspicious

manner may also justify a stop. Scott, 277 Ill. App. 3d at 584. What is considered suspicious has

been subject to much debate, with results varying by jurisdiction. See 5 Wayne R. LaFave,

Search and Seizure § 10.8(a), n.85 (5th ed. 2012).

¶ 15 The State argues that we should broadly interpret the holding in People v. Long, 124 Ill.

App. 3d 1030, 1034 (1984), a case relied on by the trial court in denying the defendant’s motion

-5- to suppress, and find that pulling over and stopping prior to a roadblock is an attempt to evade a

roadblock. In Long, the driver pulled over and parked on the road, 100 yards before a police

checkpoint. Id. at 1032. Although it was argued that stopping before the checkpoint was an

attempt to avoid it, the trial court never reached that issue because it found that the driver was

subject to the checkpoint because he had stopped within the area encompassed by the

checkpoint. Id. at 1033. While it has been suggested that pulling over and switching drivers

shortly before a checkpoint are sufficient articulable facts to constitute reasonable suspicion of

criminal activity, we decline to speculate whether a driver’s act of pulling over and parking,

coupled with his proximity to a checkpoint, constituted reasonable suspicion of criminal activity

to justify a stop.

¶ 16 The defendant in this case made a legal turn just prior to a roadblock. Although a U-turn

may be more uncommon than a turn at an intersection or an exit, the defendant’s legal traffic

maneuver only raised the suspicion that he was attempting to avoid contact with the police.

Looking at the totality of the circumstances, we find there were no factors to suggest that the

defendant was doing any more than going about his business. Although the legality of the

defendant's traffic maneuver was but one factor to consider, there were no other facts suggesting

that it was a high-crime area, nor facts suggesting flight, such as speeding, squealing tires, or

spraying gravel. Under the rationale espoused by the dissent, if a person chooses to exercise his

rights of personal liberty and freedom from search by avoiding contact with the police, the very

act of avoidance rises to a level of suspicion sufficient to allow the police to stop and detain. We

find that, absent any other suspicious activity, before, during, or after, the U-turn itself did not

provide specific, articulable facts that a criminal offense had been or was about to be committed

sufficient to warrant the intrusion.

-6- ¶ 17 Since there were no specific, articulable facts to justify a Terry stop of the defendant's

vehicle, we find that the motion to suppress should have been granted. Thus, we reverse the

defendant’s conviction and remand for further proceedings consistent with this opinion.

¶ 18 CONCLUSION

¶ 19 The judgment of the circuit court of Hancock County is reversed.

¶ 20 Reversed and remanded.

& 21 JUSTICE HOLDRIDGE, specially concurring.

& 22 I concur with Justice O'Brien's judgment and analysis. I write separately to further

clarify the legal standards governing our analysis and to address some of the arguments raised by

the dissent.

& 23 A police officer may lawfully initiate a warrantless traffic stop consistent with the Fourth

Amendment only if the officer "has a reasonable suspicion supported by articulable facts that

criminal activity may be afoot." (Internal quotation marks omitted.) (Emphasis added.) Kaupp v.

Texas, 538 U.S. 626, 630 (2003); see also United States v. Arvizu, 534 U.S. 266, 273 (2002).

Accordingly, "[a]n investigatory stop must be justified by some objective manifestation that the

person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449

U.S. 411, 417 (1981). This requires some objective suggestion of possible criminality; the police

officer must be able to "articulate more than an inchoate and unparticularized suspicion or hunch

of criminal activity." (Internal quotation marks omitted.) Illinois v. Wardlow, 528 U.S. 119,

123-24 (2000).

& 24 In this case, there was no "objective manifestation" that "criminal activity may be afoot."

At most, the U-turn made by the defendant supported a reasonable inference that the defendant

was attempting to avoid the roadblock. However, that fact, standing alone, does not give rise to

a reasonable suspicion of criminality. It is not a crime to avoid an encounter with the police.

-7- When an individual is approached by a police officer without reasonable suspicion or probable

cause, the person "has a right to ignore the police and go about his business," and his "refusal to

cooperate, without more, does not furnish the minimal level of objective justification needed for

a detention or seizure." Wardlow, 528 U.S. at 125; Florida v. Royer, 460 U.S. 491, 498 (1983);

see also People v. Thomas, 198 Ill. 2d 103, 114 (2001); People v. Kipfer, 356 Ill. App. 3d 132,

139-40 (2005); People v. Cordero, 358 Ill. App. 3d 121, 126-27 (2005) (holding that "the mere

fact that a vehicle drives away at the approach of a police car does not justify a Terry stop").

Here, the defendant merely exercised his right to avoid a police encounter by executing a legal

U-turn. Nothing about this maneuver supports a reasonable inference of criminality. The

defendant did not violate any traffic laws or drive erratically (which might have suggested that

he was intoxicated). Nor did he speed away or give any other indication that he was trying to

conceal criminal conduct. He merely turned around and left the scene. A person in the

defendant's position might have done this for any number of innocent reasons. For example, he

might have forgotten something at home or he might have been in a hurry and wanted to avoid

being delayed by the roadblock. At most, the defendant's conduct supports an "unparticularized

suspicion" or "hunch" of criminal activity; it does not support a reasonable suspicion of criminal

activity sufficient to justify a traffic stop.

& 25 The dissent's position appears to be premised on the assumption that a driver's mere

turning away from a police checkpoint, by itself, creates a reasonable suspicion of criminal

activity. Our appellate court has rejected this assumption. People v. Scott, 277 Ill. App. 3d 579,

584-85 (1996) (holding that driver's legal turn onto an existing street before reaching a roadblock

did not create reasonable suspicion sufficient to justify a traffic stop). 1 Moreover, courts in

1 In Scott, our appellate court stated that "[w]here a motorist acts to avoid a roadblock, such

-8- several other jurisdictions have also rejected the dissent's position. See, e.g., State v, Rademaker,

813 N.W. 2d 174, 177 (S.D. 2012) ("avoidance of a checkpoint alone is insufficient to form a

basis for reasonable suspicion") (Emphasis in original.); State v. Heapy, 151 P.3d 764, 777

(Haw. 2007) ("a legal turn [before a roadblock] by itself is not sufficient to establish a

reasonable, articulable suspicion" of criminal activity (quoting State v. Foreman, 527 S.E.2d

921, 923 (N.C. 2000)); State v. Talbot, 792 P.2d 489, 495 (Utah Ct. App. 1990) ("avoiding a

roadblock, *** without more, does not create an articulable suspicion that the occupants have

engaged in or are about to engage in criminal activity. The act merely demonstrates a desire to

avoid police confrontation *** and at best only gives rise to a hunch that criminal activity may

be afoot."), disapproved of on other grounds by State v. Lopez, 873 P.2d 1127, 1135 (Utah 1994)

and State v. Pena, 869 P.2d 932, 935, 939 (Utah 1994)); Commonwealth v. Scavello, 703 A.2d

36, 38 n.4 (Pa. Super. Ct. 1997) ("we expressly disapprove of those jurisdictions which hold that

legal avoidance of a roadblock presents reasonable suspicion to conduct an investigatory stop");

Pooler v. Motor Vehicles Division, 746 P.2d 716, 718 (Or. Ct. App. 1987) (holding that a legal

U-turn before a roadblock does not by itself constitute reasonable suspicion). These courts hold

that "a motorist's avoidance or attempt to avoid a police roadblock must be coupled with other

action may itself constitute reasonable suspicion that a criminal offense has been or is about to be

committed, thus justifying a stop of the vehicle." Id. at 584. However, this statement was dicta

because the Scott court held that the defendant's conduct did not support a reasonable suspicion

that he was attempting to deliberately evade a roadblock. Moreover, the Scott court made clear

that a traffic stop would be justified based on the avoidance of a roadblock only if the driver

avoids the roadblock "in a suspicious manner." In other words, more than the mere avoidance of

a roadblock is required to create a reasonable suspicion of criminal activity.

-9- articulable facts in order to give a police officer reasonable suspicion that *** criminal activity is

afoot." Scavello, 703 A.2d at 38; see also Murphy v. Commonwealth, 384 S.E.2d 125, 128 (Va.

Ct. App. 1989) (stating that "the act of a driver making a lawful right turn 350 feet before a

roadblock does not give rise to a reasonable suspicion of criminal activity unless the driver's turn

or action is coupled with other articulable facts, such as erratic driving, a traffic violation, or

some behavior which independently raises suspicion of criminal activity"). While some other

courts have reached a contrary conclusion, 2 the better reasoned decisions hold that a traffic stop

may not be based entirely and exclusively on a motorist's lawful turn to avoid a police roadblock.

This rule preserves a driver's right to avoid a police encounter and reaffirms the principle that a

traffic stop must be based on a reasonable suspicion of criminal activity.

& 26 The dissent maintains that our judgment in this case suggests that "legal actions cannot

form the basis of reasonable suspicion of criminal activity." Not so. I agree that legal conduct

can support such a suspicion. In fact, the legal act of turning to avoid a police roadblock, if

coupled with other "objective manifestations" of possible criminal conduct, can support a

reasonable suspicion of criminality under certain circumstances. However, the legal act of

2 See, e.g., Snyder v. State, 538 N.E.2d 961, 965 (Ind. Ct. App. 1989) ("a driver's attempt to

avoid [a] roadblock, by making a turn around, *** raise[s] a specific and articulable fact which

gives rise to a reasonable suspicion on the part of a police officer that the driver may be

committing a crime"); State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim. App. 1994) ("where a

motorist acts to avoid a roadblock, such action may by itself constitute reasonable suspicion that

a criminal offense has been or is about to be committed"); see also Coffman v. State, 759 S.W.2d

573, 575-76 (Ark. Ct. App. 1988).

- 10 - avoiding a police roadblock, standing alone, cannot supply a reasonable suspicion of criminal

conduct sufficient to justify a traffic stop.

& 27 The dissent contends that, in Wardlow, the United Stated Supreme Court held that a

defendant's legal act of fleeing from the police "gave rise to a reasonable, articulable suspicion of

criminal conduct." I disagree. Contrary to the dissent's assertion, the Wardlow court merely held

that the defendant's unprovoked, "headlong flight" upon noticing the police was one factor

among several factors that, taken together, supported a reasonable suspicion of criminal activity.

The Wardlow Court took considerable care to describe the full context underlying the Terry stop

in that case. Specifically, the Court noted that eight police officers in a four-car caravan were

converging on an "area known for heavy narcotics trafficking" where they expected to encounter

"drug customers" and "lookouts" when they saw the defendant standing next to a building

holding an opaque bag. Wardlow, 528 U.S. at 121-22, 124. The defendant looked into the

direction of the officers and fled through a gangway and an alley. Id. at 122. The Court held

that the totality of the circumstances (including the fact that the defendant was in a high crime

area at the time, his flight from the police, and the entire context recited above) created a

reasonable suspicion of criminal activity which justified a Terry stop. Id. at 124. Although the

Court "recognized that nervous, evasive behavior is a pertinent factor in determining reasonable

suspicion" (Wardlow, 528 U.S. at 124), it did not hold that the defendant's flight from the police,

standing alone, created reasonable suspicion sufficient to justify the Terry stop at issue in that

case. Nor has the Court ever so held. The dissent's attempt to divine a more expansive holding

in Wardlow might be an interesting exercise in augury, but it is ultimately unsuccessful.

& 28 The dissent also suggests that our analysis "runs afoul of the United States Supreme

Court's mandate to avoid reducing reasonable suspicion judgments to a 'neat set of legal rules.' "

Infra ¶ 43 (quoting Avizu, 534 U.S. at 274). To the contrary, we acknowledge that such

- 11 - judgments must be made on a case-by-case basis based on the totality of the circumstances

presented in each case. Our judgment in this case does not impose any per se rule that flight

from the police may never contribute to a reasonable suspicion of criminal conduct. To the

contrary, we concede that the avoidance of a police roadblock, when considered together with

other circumstances suggestive of criminal conduct, may support a reasonable suspicion that "a

crime may be afoot." As noted above, we merely hold that the avoidance of a roadblock by

means of a legal turn, without more, is not enough to support such a suspicion. It is the dissent

that would decide this case based upon "neat legal rules" (e.g., the rule that a motorist's

avoidance of a roadblock automatically provides reasonable suspicion to justify a traffic stop,

and the rule that "[a]s long as police can legally erect roadblocks, they have the ability to stop

and briefly detain those attempting to avoid them." (Infra ¶ 44)). In my view, both of these

categorical rules proposed by the dissent would violate the Fourth Amendment.

¶ 29 JUSTICE SCHMIDT, dissenting.

¶ 30 I disagree with the majority that the trial court erred when denying defendant's motion to

suppress and, therefore, respectfully dissent.

¶ 31 I find the majority's logic and reasoning faulty. According to the majority, had the

defendant "parked at the railroad tracks 50 feet from the checkpoint" (supra ¶ 11) in an effort to

avoid the checkpoint, then law enforcement intervention would be constitutionally permissible.

Moreover, the majority acknowledges that when "a motorist acts to avoid a roadblock, such

action may itself constitute reasonable suspicion that a criminal offense has been or is about to be

committed, thus justifying a stop of the vehicle." (Internal quotation marks omitted.) Supra ¶ 13

(quoting People v. Scott, 277 Ill. App. 3d at 584). Nevertheless, according to the majority's

analysis, completing a U-turn in an effort to avoid the checkpoint within that same 50-foot

- 12 - boundary cannot serve as the basis for an officer's reasonable suspicion of potential criminal

activity, which, in turn, rendered the actions of the officer herein unconstitutional.

¶ 32 The majority acknowledges that defendant's actions "raised the suspicion that he was

attempting to avoid contact with the police." Supra ¶ 16. Exactly. As this court acknowledged

in Long, a "motorist may not avoid having his driver's license checked by attempting to evade a

stationary checkpoint." Long, 124 Ill. App. 3d at 1034.

¶ 33 Referring to it a number of times, the majority seemingly emphasizes the fact that the

defendant violated no laws when making his U-turn 50 feet short of the checkpoint. Supra ¶ 11

("he executed a legal U-turn ***. See 625 ILCS 5/11-802 (West 2010) (U-turns are legal in

Illinois, as long as the turn can be made safely and without interfering with other traffic))"; supra

¶ 16 ("The defendant in this case made a legal turn just prior to a roadblock."). This suggests

that the majority concludes that one's legal actions cannot form the basis of reasonable suspicion

of criminal activity. (If the actions taken were illegal, we would have probable cause, ergo, no

need to even discuss reasonable suspicion.) The United States Supreme Court has previously

corrected an Illinois court for similar thinking.

¶ 34 In People v. Wardlow, 287 Ill. App. 3d 367 (1997), a Chicago police officer was driving

a police car while in full uniform and observed defendant "who was not violating any laws,"

standing on the street. Id. at 368, aff'd, People v. Wardlow, 183 Ill. 2d 306 (1998), rev'd, Illinois

v. Wardlow, 528 U.S. 119 (2000). "Defendant looked in the officers' direction, then fled." Id.

The officer pursued the defendant, "stopped" him, and conducted a protective pat-down search

through which the officer found a .38-caliber revolver. Id. at 368-69. He then placed the

defendant under arrest. Id. at 369.

¶ 35 The First District stated the "record here is simply too vague to support the inference that

defendant was in a location with a high incidence of narcotics trafficking or, for that matter, that

- 13 - defendant's flight was related to his expectation of police focus on him. Because we find no

support in the record for the contention that defendant was in a high crime location, we are left

only with the fact of his sudden flight from an area past which the officers were driving. That

circumstance alone does not satisfy the requirements for a lawful investigatory stop." Id. at 371.

Therefore, the First District reversed the trial court's denial of defendant's motion to suppress.

Id. Our supreme court affirmed. People v. Wardlow, 183 Ill. 2d 306 (1998), rev'd, Illinois v.

Wardlow, 528 U.S. 119 (2000).

¶ 36 In doing so, our supreme court disagreed with the First District, finding that the officer's

testimony did establish that defendant was present in a high crime area. Wardlow, 183 Ill. 2d at

311. Nevertheless, our supreme court agreed that "flight alone is insufficient to create a

reasonable suspicion of involvement in criminal conduct." Id. The United States Supreme Court

reversed. In doing so, the Wardlow Court stated that its "cases have also recognized that

nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Wardlow,

528 U.S. at 124. While it acknowledged that an "individual's presence in an area of expected

criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion

that the person is committing a crime," the Court noted that "officers are not required to ignore

the relevant characteristics of a location in determining whether the circumstances are

sufficiently suspicious to warrant further investigation." Id.

¶ 37 The Wardlow Court continued:

"[W]hen an officer, without reasonable suspicion or probable cause,

approaches an individual, the individual has a right to ignore the police

and go about his business. [Citation.] And any 'refusal to cooperate,

without more, does not furnish the minimal level of objective justification

needed for a detention or seizure.' [Citation.] But unprovoked flight is

- 14 - simply not a mere refusal to cooperate. Flight, by its very nature, is not

'going about one's business'; in fact, it is just the opposite. Allowing

officers confronted with such flight to stop the fugitive and investigate

further is quite consistent with the individual's right to go about his

business or to stay put and remain silent in the face of police questioning."

Id. at 125.

¶ 38 The defendant in Wardlow committed no crime. He legally fled upon seeing the police.

Yet, the flight gave rise to a reasonable, articulable suspicion of criminal conduct.

¶ 39 Here, the majority acknowledges that defendant's actions raised the suspicion that

defendant wanted to avoid the police. Supra ¶ 16.

¶ 40 The officers testified that they put orange, diamond-shaped signs up on the roadway

publicizing the safety checkpoint. They further testified that the time of the incident was

approximately 1 a.m. The majority suggests that the officers were duty bound to consider

defendant's avoidance of the safety checkpoint and all that comes with it as an innocent action,

which only evinces a willingness to avoid police contact. That simply is not the law.

"When discussing how reviewing courts should make

reasonable-suspicion determinations, we have said repeatedly that

they must look at the totality of the circumstances of each case to see

whether the detaining officer has a particularized and objective basis

for suspecting legal wrongdoing. [Citation.] This process allows

officers to draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available

to them that might well elude an untrained person. [Citations.] ***

Our cases have recognized that the concept of reasonable suspicion

- 15 - is somewhat abstract. [Citations.] But we have deliberately avoided

reducing it to a neat set of legal rules [citations]. ***

***

*** We think it quite reasonable that a driver's slowing down, stiffening

of posture, and failure to acknowledge a sighted law enforcement officer

might well be unremarkable in one instance (such as a busy San Francisco

highway) while quite unusual in another (such as a remote portion of rural

southeastern Arizona). [The law enforcement officer] was entitled to make

an assessment of the situation in light of his specialized training and

familiarity with customs of the area's inhabitants." (Internal quotation

marks omitted.) United States v. Arvizu, 534 U.S. 266, 273-76 (2002).

¶ 41 The United States Supreme Court unanimously rejected in Arvizu, the defendant's

assertion that since he was in violation of no laws and "because the facts suggested a family in a

minivan on a holiday outing," that the Court must rule in his favor and suppress the stop. Id. at

277. In doing so, the Court emphatically stated, "A determination that reasonable suspicion

exists, however, need not rule out the possibility of innocent conduct." Id.

¶ 42 The majority herein places too much emphasis on "the possibility of innocent conduct"

and ignores the suspicious nature of making a U-turn in the middle of the night over railroad

tracks 50 feet before the police will most certainly check your license and registration to ensure

they are current. The majority's analysis ignores the totality of the circumstance approach

mandated by the United States Supreme Court and improperly restricts the officers' ability "to

draw on their own experience and specialized training to make inferences from and deductions

about the cumulative information available." Id. at 273.

- 16 - ¶ 43 Finally, the majority's analysis also runs afoul of the United States Supreme Court's

mandate to avoid reducing reasonable suspicion judgments to a "neat set of legal rules."

(Internal quotation marks omitted.) Id. at 274. As the majority acknowledges, the law in Illinois

is now that when one stops his vehicle within 100 yards of a checkpoint, he is within the realm of

the checkpoint and properly subject to seizure. Supra ¶ 11 (citing Long, 124 Ill. App. 3d at

1033-34). (Of course, not just Illinois; the fourth amendment means the same whether one is in

Illinois, Alaska or Ohio.) However, one may do a U-turn over railroad tracks within 50 feet of

the checkpoint and remain free to avoid it (supra ¶ 16), or make a legal turn onto a residential

street just prior to the roadblock as long as the person lives on that street (supra ¶ 13 (citing

Scott, 277 Ill. App. 3d at 584)); a fact that no officer would know until after the stop.

¶ 44 Fixed automobile checkpoints to root out illegal activity are constitutionally permissible.

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (border patrol checkpoint); Michigan

Department of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint); Illinois v. Lidster,

540 U.S. 419 (2004) (seeking information from the public checkpoint). As long as police can

legally erect roadblocks, they have the ability to stop and briefly detain those attempting to avoid

them. As the Supreme Court has made clear, the fact that the conduct may turn out to be

innocent, does not, by itself, negate a reasonable, articulable suspicion of criminal conduct. I

would affirm the trial court.

- 17 -