People v. Clements

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Clements, 2012 IL App (3d) 110213

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v.
Caption JASON W. CLEMENTS, Defendant-Appellee.

District & No. Third District
Docket Nos. 3-11-0213, 3-11-0407 cons.

Filed September 5, 2012

Held Defendant was not seized when, as he approached a roadside safety
(Note: This syllabus checkpoint at a high rate of speed, an officer waved his flashlight at
constitutes no part of defendant and shouted at him to slow down and defendant pulled over
the opinion of the court and parked his car, even though he was not one of the “every third
but has been prepared vehicles” intended to be stopped, and he remained at the checkpoint
by the Reporter of several minutes until the officer approached his car and made
Decisions for the observations that led to his DUI arrest, the circumstances of the case gave
convenience of the the officer an articulable basis to direct defendant to slow down, the
reader.)
resulting stop was valid in view of defendant’s traffic violation, and the
grant of defendant’s petition to rescind the summary suspension of his
license and his motion to suppress evidence was reversed.

Decision Under Appeal from the Circuit Court of Whiteside County, Nos. 10-MR-96, 10-
Review DT-221; the Hon. William S. McNeal, Judge, presiding.

Judgment Reversed and remanded.
Counsel on Gary L. Spencer, State’s Attorney, of Morrison (Terry A. Mertel and
Appeal Thomas D. Arado, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.

Daniel A. Huffman, of Nelson Kilgus Richey Huffman & Buckwalter-
Schurman, of Morrison, for appellee.

Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justice Carter concurred in the judgment and opinion.
Justice McDade dissented, with opinion.

OPINION

¶1 On October 31, 2010, defendant, Jason W. Clements, stopped his vehicle at a roadside
safety checkpoint, and several minutes later an officer approached defendant’s parked car.
Based on the officer’s observations, including a preliminary breath test and defendant’s
admission to the officer he had consumed alcohol, defendant was arrested for driving under
the influence (DUI) in violation of sections 11-501(a)(1) and 11-501(a)(2) of the Illinois
Vehicle Code (the Code), and issued a notice of statutory summary suspension. 625 ILCS
5/11-501(a)(1), (a)(2), 11-501.1 (West 2010). The trial court granted defendant’s petition to
rescind the statutory summary suspension of his driver’s license (625 ILCS 5/2-118.1(b)
(West 2010)) and defendant’s motion to suppress evidence. The State appeals. We reverse
and remand.

¶2 FACTS
¶3 On October 31, 2010, defendant stopped his vehicle within the boundaries of a
checkpoint, conducted by the Illinois State Police, after trooper Vaughn Rhodes shouted at
defendant to slow down. Three to five minutes later, defendant’s vehicle remained parked
at the checkpoint, and Rhodes approached defendant’s vehicle after he finished processing
another vehicle. While speaking with defendant, the officer noticed the odor of alcohol and
defendant admitted consuming alcohol. A preliminary breath test revealed defendant’s blood
alcohol content was 0.175. The officer subsequently arrested defendant for DUI in violation
of sections 11-501(a)(1) and 11-501(a)(2), and issued a notice of statutory summary
suspension. 625 ILCS 5/11-501(a)(1), (a)(2), 11-501.1 (West 2010).
¶4 On January 18, 2011, the court conducted a hearing on defendant’s petition to rescind the
statutory summary suspension. At the summary suspension hearing, Rhodes testified that on
October 31, 2010, he was assigned to assist at a checkpoint located on Illinois Route 30, a
two-lane highway for eastbound and westbound traffic. According to the officer, the

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 established protocol for the checkpoint required the officers to stop every third vehicle
approaching the location from either direction of travel. Rhodes testified there were between
six and eight uniformed State Police troopers working at the checkpoint that night.
According to Rhodes, at least two of the police vehicles had their overhead oscillating lights
activated and there were posted signs alerting oncoming motorists of the approaching
checkpoint.
¶5 Rhodes testified that at approximately 3:22 a.m. on October 31, 2010, he was on the side
of the road, speaking to the driver of another stopped vehicle, when defendant’s vehicle
approached the checkpoint at a high rate of speed. Concerned, Rhodes turned away from the
driver he was speaking to, faced the roadway, waved his flashlight, and shouted at defendant
to slow down. Rather than simply reducing his speed, defendant pulled over and parked his
vehicle. Defendant was not the third oncoming car approaching the checkpoint.
¶6 Rhodes observed defendant’s car remained parked at the checkpoint for three to five
minutes while Rhodes finished processing the other motorist. Consequently, Rhodes
approached defendant’s vehicle, which remained parked within the boundaries of the
checkpoint, and Rhodes made certain observations which resulted in defendant’s arrest for
DUI.
¶7 Defendant argued to the trial court that the traffic stop violated his fourth amendment
rights. Defendant claimed his rights were violated because his vehicle was not the third
vehicle and he did not commit a traffic violation prior to stopping at the checkpoint.
¶8 The trial court found Rhodes acted properly and did not have a subjective intent to stop
defendant’s vehicle. However, the court found defendant was seized because a reasonable
person would not have felt free to travel through the checkpoint, without stopping, based on
Rhodes’s conduct. Thus, the trial court ordered the rescission of defendant’s summary
suspension. On February 10, 2011, the State filed a motion to reconsider, which the trial
court denied.
¶9 On May 19, 2011, defendant filed a motion to suppress evidence. The next day, the court
conducted a hearing on the motion. At the hearing, Rhodes testified he did not know exactly
how fast defendant was traveling through the checkpoint or whether defendant’s speed was
over the posted speed limit. Nonetheless, presumably based on the road conditions present
at the checkpoint, the officer concluded defendant’s rate of speed was too fast and verbally
directed him to slow down.
¶ 10 After hearing the evidence, the trial court allowed defendant’s motion to suppress. The
trial court found a seizure occurred for fourth amendment purposes because a reasonable
person in defendant’s position would not have felt free to leave. Furthermore, the court
determined the encounter was improper because defendant was not traveling in a vehicle
which should have been selected for a random inspection according to the established
checkpoint procedures, nor did the officer have reasonable suspicion of a criminal activity
before he approached and spoke to defendant at the scene. The State appeals.

¶ 11 ANALYSIS
¶ 12 The State contends the trial court erred by granting both defendant’s petition to rescind

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 the summary suspension and his motion to suppress. The State’s arguments regarding both
the petition and motion are similar. Specifically, the State argues defendant’s encounter with
Rhodes was consensual and does not qualify as a seizure because defendant voluntarily
stopped his vehicle within the checkpoint. Alternatively, the State argues even if defendant
was seized, Rhodes had reasonable suspicion to stop the vehicle because Rhodes observed
defendant traveling at a high rate of speed through a checkpoint. Furthermore, the State
contends the seizure was reasonable because Rhodes was acting in a community caretaker
capacity when he approached defendant’s vehicle.
¶ 13 A de novo standard of review applies to the ultimate determination of whether the
petition to rescind the statutory summary suspension or motion to suppress should have been
granted, but we will defer to the trial court’s findings of fact, unless they are against the
manifest weight of the evidence. People v. Wear, 229 Ill. 2d 545 (2008); People v.
Luedemann, 222 Ill. 2d 530 (2006). We first address the issue of whether defendant was
seized as a result of Officer Rhodes’s conduct. Then, assuming arguendo defendant was
seized, we will consider whether the officer had a reasonable suspicion of criminal activity
that would justify stopping defendant’s vehicle.

¶ 14 I. Whether Defendant Was Seized
¶ 15 The fourth amendment of the United States Constitution and article I, section 6, of the
Illinois Constitution guarantee citizens the right to be free from unreasonable searches and
seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. An individual “may not be
lawfully seized without reasonable, objective grounds to support the seizure.” People v.
Davenport, 392 Ill. App. 3d 19, 27 (2009).
¶ 16 To determine whether the interaction between a law enforcement officer and a motorist
qualifies as a seizure for fourth amendment purposes, we must objectively consider whether,
in light of the circumstances surrounding the incident, a reasonable, innocent person would
have felt free to decline the officer’s requests or would have felt free to terminate the
encounter. United States v. Mendenhall, 446 U.S. 544 (1980); Luedemann, 222 Ill. 2d 530.
After the officer requests a motorist to stop, certain factors that may be considered to
determine whether a seizure occurred include: (1) the threatening presence of several police
officers; (2) an officer’s display of a weapon; (3) physical touching of an individual by an
officer; and (4) use of language or tone indicating compliance with some directive was
compelled. Id.
¶ 17 We emphasize that the first objective, but threshold, requirement is whether an officer
made a request for a motorist to stop, or whether the driver presented sufficient evidence
conclusively establishing he involuntarily stopped based on his perception of the officer’s
actions. Neither circumstance was presented by the evidence submitted to the trial court in
support of either defendant’s petition to rescind the statutory summary suspension or
defendant’s motion to suppress.
¶ 18 As noted by the dissent, the trial court’s findings are critically important in this case.
Here, the court did not make a finding that defendant involuntarily stopped his vehicle that
night. Instead, the trial court specifically found Rhodes did not intend to stop defendant’s

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 vehicle. This finding is supported by the record and is not challenged on appeal. It is clear
from Rhodes’s undisputed testimony that the officer merely gestured with his flashlight and
shouted “slow down.” Rhodes never ordered defendant to stop. Furthermore, according to
the evidence presented by the defense, no other officer pursued defendant or directed him to
stop.
¶ 19 The precise reason defendant stopped his vehicle and remained at the checkpoint is
unknown because defendant did not testify during the hearing on either the petition to revoke
the statutory summary suspension or the motion to suppress. Without defendant’s testimony
indicating he first observed Officer Rhodes gesture with a flashlight and then felt compelled
to stop, the record does not support an inference that defendant involuntarily stopped his
vehicle based on police conduct. The facts presented to the trial court support multiple,
equally plausible inferences that defendant did not notice Officer Rhodes but may have
voluntarily stopped out of an abundance of caution or confusion or due to other difficulties.
¶ 20 The burden is on defendant to establish a prima facie case for rescission of a summary
suspension. People v. Orth, 124 Ill. 2d 326, 336 (1988). Defendant alleged the police did not
have authority to stop his vehicle. Here, the court unequivocally found this officer did not
intend to stop defendant’s vehicle, and defendant did not present testimony establishing he
involuntarily stopped his vehicle within the roadblock. Thus, it matters not whether this
defendant or some other reasonable person might have remained within the roadblock after
voluntarily stopping his vehicle. Defendant’s testimony regarding his thought process likely
would have helped explain why a reasonable person in defendant’s position would not have
felt free to leave. See People v. Brownlee, 186 Ill. 2d 501, 519 (1999) (stating that, while the
test to determine whether a seizure occurred is an objective one, a driver’s subjective reaction
can be important in assessing the Mendenhall factors).
¶ 21 Without some evidence Rhodes intended to detain defendant or some evidence that
defendant actually perceived Rhodes’s actions required defendant to stop, we conclude an
investigatory stop did not occur in this case. Moreover, defendant did not contest his
detention for purposes of the DUI investigation once the officer approached defendant
several minutes later, after defendant stopped within the boundaries of the roadblock.
Accordingly, we hold defendant was not seized.

¶ 22 II. Whether Rhodes Had a Reasonable Suspicion of Criminal Activity
¶ 23 A valid investigatory stop occurs when the officer creating the seizure had a reasonable
suspicion, based upon specific and articulable facts, of criminal activity to justify the stop
at issue. Terry v. Ohio, 392 U.S. 1 (1968); People v. Greco, 336 Ill. App. 3d 253 (2003).
Generally, a traffic violation provides a sufficient basis for a traffic stop. People v. Rotkvich,
256 Ill. App. 3d 124 (1993). A seizure does not violate the fourth amendment unless the
seizure was unreasonable. People v. Bartley, 109 Ill. 2d 273 (1985).
¶ 24 While the trial court found Rhodes did not subjectively intend to stop defendant at the
checkpoint, had Rhodes intended to stop defendant, the record reveals Rhodes would have
had an ample basis to formulate an intention to stop defendant and require him to remain at
the checkpoint based on the officer’s observations of a violation of section 11-907 of the

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 Code. 625 ILCS 5/11-907(c)(2) (West 2010). The record reveals there were multiple squad
cars parked at the checkpoint, some with activated oscillating lights, and at least one other
motorist located on the side of the roadway with Rhodes standing nearby. Under these
circumstances, the Code requires a driver, such as defendant in this case, to slow down,
proceed with caution, and then maintain a safe speed for the road conditions present when
approaching a stationary emergency vehicle, such as those present on the roadway on the
night of defendant’s arrest. 625 ILCS 5/11-907(c)(2) (West 2010). Obviously, Rhodes’s
belief defendant was driving too fast was not based on the posted speed limit, but rather, this
belief was related to valid safety considerations resulting from the presence of multiple
emergency vehicles and other traffic conditions on the roadway due to the checkpoint itself.
¶ 25 After observing defendant approach the checkpoint at an unsafe speed, we conclude
Rhodes had an articulable basis to direct the car to slow down, which we will assume, for
purposes of this appeal, caused defendant to stop. Therefore, even if we assume Rhodes
intended to stop defendant, which is contrary to the court’s finding, the detention constituted
a valid traffic stop based on the traffic violation Rhodes witnessed before shouting at
defendant to slow down.
¶ 26 Since this issue is dispositive, it becomes unnecessary to address the State’s argument
Rhodes was acting in a community caretaker capacity when he approached a driver who
stopped at the roadblock without being directed to do so. Accordingly, we reverse the trial
court’s grant of defendant’s petition to rescind and motion to suppress, and we remand the
cause for further proceedings.

¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, the judgment of the trial court of Whiteside County is
reversed, and the cause is remanded for further proceedings.

¶ 29 Reversed and remanded.

¶ 30 JUSTICE McDADE, dissenting.
¶ 31 The majority has reversed and remanded the decision of the circuit court of Whiteside
County suppressing evidence gained from defendant, Jason Clements, after he pulled off the
road during a roadside safety check and rescinding his statutory summary suspension. For
the reasons that follow, I respectfully dissent.
¶ 32 At the heart of this appeal is whether Clements was seized and, if so, whether evidence
acquired during this seizure was properly suppressed and his summary suspension was
properly rescinded.
¶ 33 In determining whether a seizure has occurred, we focus on the perceptions and beliefs
of the person seized, but not in a subjective way. Our test is an objective one: would a
reasonable person in the Defendant’s situation believe he had been stopped and was not free
to leave? United States v. Mendenhall, 446 U.S. 544, 554 (1980). The majority correctly
points out the four Mendenhall factors indicating a seizure: (1) the threatening presence of

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 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. Mendenhall, 446 U.S. at 554; People v. Luedemann, 222 Ill. 2d 530, 553
(2006) (adopting Mendenhall standard).
¶ 34 While the events in this case are unusual, I do believe the facts, when analyzed in
conjunction with the Mendenhall factors, establish that a reasonable person in the
defendant’s situation would have felt he had been stopped and was not free to leave. My
belief draws support from the deferential portion of our standard of review. Our standard of
review on appeals from rulings on motions to suppress is a dual one. We test the trial court’s
findings of fact to determine if they are against the manifest weight of the evidence. If they
are not, we defer to those findings. Luedemann, 222 Ill. 2d at 542. Our review of the trial
court’s conclusions of law is de novo. Luedemann, 222 Ill. 2d at 542.
¶ 35 The trial court’s findings of fact are critically important to my dissent. The only record
we have of the January 18, 2011, hearing on the defendant’s petition to rescind the statutory
summary suspension is a bystander’s report certified by the court. It reported that the court
had found that
“while Trooper Rhodes had not intended to stop the Appellee’s vehicle, a reasonable
person in the Appellee’s position would not have felt free to leave. Therefore, the trial
Court ruled that the Appellee had been seized, and the Petition to Rescind Statutory
Summary Suspension was allowed.”
¶ 36 The findings of fact and law issued by the court following the May 19, 2011, hearing on
the motion to suppress were actually reduced to an order and were more specific. The court
found:
“1. That on October 31, 2010, the Illinois State Police conducted a roadside safety
check on U.S. Route 30 and Dakin Road in Whiteside County, Illinois.
2. Said roadside safety check was conducted with at least 6-8 Illinois State Troopers
all wearing their police uniforms and accompanying sidearms. Additionally, 6-8 State
Police vehicles were present at the checkpoint, many of them with lights and flashers
engaged.
3. At approximately 2:33 a.m., Trooper Vaughn Rhodes of the Illinois State Police
was engaged in the stop of a vehicle other than that of the Defendant.
4. While engaged with said vehicle, Trooper Rhodes gestured to the Defendant’s
vehicle in a manner which a reasonable person would have believed to stop at said safety
check.
5. Trooper Rhodes acknowledged that the Defendant’s vehicle was not the ‘next third
car’ to be stopped as prescribed by regulations promulgated by the State Police
Supervisor prior to the commencement of the roadside safety check and that said
regulations had not been changed by the Supervisor prior to the stop of the Defendant’s
vehicle.
6. Trooper Rhodes further testified that he had no knowledge of this roadside safety
check being published in any local newspaper prior to October 31, 2010, and no other

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 evidence was introduced of any publication.”
¶ 37 In making its rulings, the trial court drew what I believe to be a completely reasonable
inference that, but for the existence of the safety checkpoint, the actions of Trooper Rhodes
and the show of police force and authority represented by the number and appearance of the
troopers and official vehicles at the checkpoint, defendant would neither have pulled off the
road and stopped within the checkpoint area nor stayed in his vehicle waiting for Rhodes to
come and speak with him.
¶ 38 The trial court also found, based on the facts and reasonable inferences drawn from those
facts, that there was no articulable reason for the stop. Clements’s car was not the “next third
car” to be stopped in the execution of the checkpoint’s protocols; nor–since Rhodes did not
intend to stop Clements but merely to suggest that he reduce his speed and since Rhodes
testified that he had no idea of Clements’s actual speed–was he stopped because he was
suspected of violating the law. I acknowledge that Clements could have been driving too fast
for conditions–presumably the existence of the checkpoint–but Rhodes’s lack of intent to
stop him suggests caution rather than alarm.1 Moreover, I note that there is no objective
evidence–such as radar detection–that would indicate that defendant was either exceeding
the posted speed limit or driving too fast for conditions.
¶ 39 The trial court’s factual findings are not against the manifest weight of the evidence.
Indeed, they mirror the testimony of the State Police trooper who was the only witness at
both hearings. While the majority emphasizes the lack of defendant’s testimony, this has, in
my opinion, no bearing on the issue before us due to the fact that the pertinent test is an
objective, rather than subjective, one. The trial court found that “Trooper Rhodes gestured
to the defendant’s vehicle in a manner which a reasonable person would have believed to
stop at said safety check.” Rhodes had testified he felt defendant was driving too fast. It is
a reasonable inference that defendant did not intend to stop but did so because of Rhodes’s
gesture and shout. In addition, the conclusion reached by the trial court that no reasonable
person in the defendant’s circumstances would have felt free to leave flows logically from
the facts.
¶ 40 The facts are bizarre, but I believe the trial court reached a conclusion on those facts that
is consistent with existing case law and that its decision should be affirmed.

1
I am, of course, assuming that the existence of the checkpoint regulations would not
preclude the police from stopping someone, not the next third person, who was actually violating the
law.

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