NO. 4-96-0551
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Edgar County
JAMES PLUMMER, ) No. 96DT27
Defendant-Appellant. )
) Honorable
) H. Dean Andrews,
) Judge Presiding.
_________________________________________________________________
JUSTICE GARMAN delivered the opinion of the court:
Defendant James Plummer appeals an order of the circuit
court of Edgar County denying his petition to rescind the statutory
summary suspension of his driver's license arising out of his
arrest for driving under the influence (DUI) (625 ILCS 5/11-
501(a)(2) (West 1994)). He contends the arrest was improper
because it was made outside the arresting officer's jurisdiction
and the officer used the power of his office to obtain evidence not
available to private citizens. We disagree and affirm.
On April 7, 1996, at approximately 3:30 a.m., Deputy Troy
Wesley of the Clark County sheriff's department was on duty. He
was returning to Clark County after delivering a report to the
Edgar County sheriff's department in Paris, Illinois. As he
traveled south on Route 1 in Edgar County, he observed defendant's
vehicle being driven erratically. The vehicle swerved in its lane,
crossed the centerline twice, and veered off the right shoulder
twice (nearly entering onto the grassy part of the shoulder both
times). Wesley radioed the Clark County sheriff for a backup from
Edgar County, and the Clark County sheriff's department contacted
the Edgar County sheriff. Wesley then activated his emergency
lights and defendant pulled over to the side of the road.
Wesley was in a marked squad car and in uniform. He
approached defendant's vehicle and asked defendant to produce his
driver's license and registration. Defendant complied. Wesley
detected a moderate odor of alcohol on defendant's breath and asked
him if he had been drinking alcohol. Defendant replied, "[A]
couple." Several minutes after the traffic stop, Deputy St. Clair
of the Edgar County sheriff's department arrived. After St.
Clair's arrival, Wesley conducted field-sobriety tests on defen-
dant. St. Clair stood nearby but did not participate in conducting
the tests. Wesley concluded that defendant failed the sobriety
tests and placed defendant under arrest for DUI. St. Clair was
present at the time of the arrest.
Defendant was handcuffed, placed in Wesley's car, and
transported to the Edgar County jail. There was no particular
reason to use Wesley's car rather than St. Clair's. When they
arrived, the officers discussed giving defendant a breathalyzer
test. St. Clair asked if Wesley was a certified operator and he
replied affirmatively. St. Clair asked Wesley to conduct the
test, as his certification had recently expired and there was no
one available at the jail certified to operate the breathalyzer.
Following the appropriate warnings, defendant agreed to take the
test. The result showed an alcohol concentration of 0.13. All the
paperwork was done by Wesley except the two tickets, which were
filled out by St. Clair. Defendant received immediate notice of
the statutory summary suspension of his driver's license. See 625
ILCS 5/11-501.1(f) (West 1994).
On May 9, 1996, defendant filed a petition to rescind his
statutory summary suspension. On June 6, 1996, defendant filed a
memorandum of law in support of the petition. The memorandum
argued Wesley was limited to making an arrest as a private citizen
because he was outside his jurisdiction and that he went beyond
that limit by using resources unavailable to private citizens in
making the arrest. Thus, the arrest was improper.
On June 14, 1996, the trial court denied defendant's
petition and held the arrest was proper. This timely appeal
followed.
Defendant's arguments on appeal are essentially the same
contentions presented at the trial court. He claims his arrest was
improper because Wesley was outside his jurisdiction and he used
the power of his office to obtain evidence not available to private
citizens. Specifically, defendant points to Wesley's use of
emergency lights, his conducting field-sobriety tests, and his
administering a breathalyzer to acquire evidence of DUI. There-
fore, defendant asserts, because the underlying arrest was invalid
and a valid arrest is required to suspend his driver's license, the
statutory summary suspension should be rescinded.
We first address the applicable standard of review. A
summary suspension hearing is a civil action in which the burden of
proof rests on the motorist. People v. Orth, 124 Ill. 2d 326, 337-
38, 530 N.E.2d 210, 215 (1988); People v. Adams, 225 Ill. App. 3d
815, 817, 587 N.E.2d 592, 594 (1992). Further, the trial court's
determination in a rescission proceeding will not be overturned
unless it is manifestly erroneous. People v. Crocker, 267 Ill.
App. 3d 343, 345, 641 N.E.2d 1237, 1239 (1994).
At common law, a municipal or county police officer had
no authority to arrest outside his jurisdiction unless he was in
fresh pursuit of a defendant fleeing his jurisdiction. People v.
Lahr, 147 Ill. 2d 379, 382, 589 N.E.2d 539, 540 (1992). This rule
has been modified by section 107-3 of the Code of Criminal
Procedure of 1963, which provides: "Any person may arrest another
when he has reasonable grounds to believe that an offense other
than an ordinance violation is being committed." 725 ILCS 5/107-3
(West 1994). Thus, a police officer outside his jurisdiction can
make a warrantless arrest in the same situation as an ordinary
citizen. People v. Niedzwiedz, 268 Ill. App. 3d 119, 122, 644
N.E.2d 53, 55 (1994). However, in those situations, a police
officer's right to arrest is not greater than that of a private
citizen. An extraterritorial arrest will not be upheld if, in
making the arrest, the officer uses the power of his office to
obtain evidence not available to private citizens. Lahr, 147 Ill.
2d at 382-83, 589 N.E.2d at 540.
In Lahr, the supreme court upheld the quash of an arrest
made by an officer who utilized a radar gun to detect speeding
motorists outside the officer's jurisdiction. According to the
court, the use of the radar gun removed the arrest from the purview
of the citizen's arrest statute because a private citizen is not
typically armed with a radar gun. Therefore, because the officer
used the power of his office (access to a radar gun) to obtain
evidence unavailable to a private citizen, the arrest did not
qualify as a citizen's arrest. Lahr, 147 Ill. 2d at 386-87, 589
N.E.2d at 542.
Defendant maintains Lahr is directly applicable to the
present case. We disagree. There is no question that the
emergency lights, field-sobriety tests, and breathalyzer test are
resources available to Wesley in his official capacity as a deputy
and were used to obtain evidence of DUI. There is also no question
that these resources are generally unavailable to private citizens.
However, unlike Lahr, where the police officer stopped the
defendant based upon evidence obtained through the power of his
office (using a radar gun), Wesley stopped defendant based upon
evidence he acquired through his own eyes--he observed defendant
driving erratically. This evidence, available to any private
citizen and not obtained through his official capacity as a deputy,
provided Wesley with reasonable grounds to stop defendant.
Furthermore, evidence acquired through the power of
Wesley's office after the initial stop (sobriety tests and
breathalyzer test) did not render the arrest improper. When a
police officer outside his jurisdiction conducts a valid traffic
stop based upon evidence obtained through his observations, the
subsequent use of his power as an officer to acquire further
evidence not available to a private citizen does not invalidate an
arrest. See People v. Gutt, 267 Ill. App. 3d 95, 640 N.E.2d 1013
(1994) (extraterritorial arrest for DUI based upon breathalyzer
test was not improper, where officer stopped defendant after
observing him make a left turn without signaling); People v.
Gupton, 139 Ill. App. 3d 530, 487 N.E.2d 1060 (1985) (extraterrito-
rial arrest for DUI based upon sobriety tests and breathalyzer test
was not invalid where officer stopped defendant after observing him
swerving); People v. Rowe, 128 Ill. App. 3d 721, 471 N.E.2d 578
(1984) (extraterritorial arrest for DUI based upon breathalyzer
test and statements made by defendant was not invalid where
officers stopped defendant after observing him swerving).
For these reasons, we find defendant's arrest for DUI was
not improper. Therefore, we hold the trial court's decision to
deny defendant's petition to rescind the statutory summary
suspension of his driver's license was not manifestly erroneous.
Accordingly, we affirm the judgment of the circuit court of Edgar
County.
Affirmed.
STEIGMANN, P.J., and COOK, J., concur.