People v. Shafer

NO. 4-06-0243 Filed 4/19/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
RICHARD SHAFER, ) No. 06DT3
Defendant-Appellant. )
) Honorable
) Tim P. Olson,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In January 2006, defendant, Richard Shafer, was ar-

rested for driving under the influence of alcohol (DUI) (625 ILCS

5/11-501(a)(2) (West 2004)). Because defendant refused to take a

breath test, his driving privileges were summarily suspended by

the Secretary of State, pursuant to sections 11-501.1 and 6-

208.1(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11-501.1, 6-

208.1(a)(1) (West 2004)).

In February 2006, defendant filed a petition to rescind

the statutory summary suspension of his driver's license.

Following a March 2006 evidentiary hearing, the trial court

denied defendant's petition.

Defendant appeals, arguing that the trial court erred

by denying his petition because the police officer who arrested

him did not have a reasonable, articulable suspicion to justify a
Terry stop (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.

Ct. 1868 (1968)) of defendant's car. We disagree and affirm.

I. BACKGROUND

At the March 2006 hearing on defendant's petition to

rescind, the only witness to testify was Jacksonville police

officer Jared DeGroot. He testified that he had been a police

officer for three years when he was on patrol by himself at

approximately 1 a.m. on January 6, 2006. Through his police

radio he received information from the police dispatcher that an

employee of Wendy's restaurant had called regarding a person who

"was causing a disturbance and was intoxicated" while ordering

food at the restaurant's drive-thru. DeGroot had no further

information about the person, nor did he know the identity of the

Wendy's employee who had called in the report.

Wendy's has only one location in the Jacksonville area,

and DeGroot responded to that location very quickly after hearing

the call from the dispatcher. He saw a car leaving the Wendy's

parking lot as he arrived.

DeGroot activated his overhead lights and stopped the

car shortly after it left the Wendy's parking lot. Prior to

doing so, he did not observe any traffic violations by the car's

driver (later identified as defendant). The car came to a

complete stop, and defendant waited in the car for DeGroot to

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approach it. As DeGroot did so, he saw a Wendy's bag on the

front seat.

DeGroot informed defendant of the call that the police

had received--"that we believed he caused a disturbance"--and

asked defendant about the matter. DeGroot had difficulty under-

standing defendant and noticed a strong smell of alcohol on

defendant's breath. DeGroot suspected that defendant was intoxi-

cated.

Defendant told DeGroot that he had had a couple of

beers. DeGroot asked defendant for his driver's license and

proof of insurance, and defendant, after a slight delay, com-

plied. DeGroot then arrested defendant for DUI and transported

him to the police station.

After DeGroot completed his testimony, the trial court

heard counsel's arguments. Defendant argued that all the police

had was the anonymous tip of a disturbance with no detail as to

what that entailed. Defendant further argued that the police did

nothing to corroborate the conclusions of the unknown Wendy's

employee that the driver of the car was intoxicated, concluding

that "the law is clear that, absent some corroboration, this stop

was unjustified at its inception."

The State responded that the police had reasonable

suspicion to pull defendant over. The police knew a disturbance

had occurred at Wendy's, and given the circumstances, they did

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not have time to stop to talk to Wendy's employees while someone

who violated the law drove away.

The trial court then engaged in the following dialogue

with defense counsel and ruled as follows:

"THE COURT: So if an employee at

Wendy's at the drive-thru called the cops and

said the guy at the drive-thru just reached,

just robbed me and drove off, you mean the

cop couldn't stop that guy unless he had a

traffic violation first?

[DEFENSE COUNSEL]: No. No, I would

disagree with that, I mean, because that's

reasonable.

THE COURT: I disagree also. The offi-

cer wasn't stopping this guy because of an

alcohol violation. He wasn't stopping for

driving under the influence of alcohol. He

was stopping him because he had a report that

there was a disturbance at Wendy's.

The [c]ourt denies the petition to re-

scind. Court finds that the officer acted

reasonably. That's all we can ask for. And

everything else flowed from the stop based

upon the disturbance, not the intoxication.

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 Petition denied."

This appeal followed.

II. ANALYSIS

A. Terry Stops in General

The Supreme Court of Illinois has explained that to

justify a Terry stop, police officers must point to specific,

articulable facts that, when considered with natural inferences,

make the intrusion reasonable. People v. Ledesma, 206 Ill. 2d

571, 583, 795 N.E.2d 253, 262 (2003), overruled on other grounds

by People v. Pitman, 211 Ill. 2d 502, 813 N.E.2d 93 (2004). The

court provided further guidance about Terry stops, as follows:

"We have previously held that a totality-of-

circumstances approach will achieve a fairer

balance between public and private interests.

[Citation.] 'The central issue is ***

whether the information, taken in its total-

ity, and interpreted not by technical legal

rules but by factual and practical common-

sense considerations, would lead a reasonable

and prudent person to believe that the person

stopped had committed an offense.' [Cita-

tion.]" Ledesma, 206 Ill. 2d at 583, 795

N.E.2d at 262.

In State v. Rutzinski, 241 Wis. 2d 729, 738, 623 N.W.2d 516, 521

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(2001), the Supreme Court of Wisconsin similarly emphasized that

when considering a set of facts to determine whether they could

give rise to a reasonable suspicion, courts should apply a

commonsense approach to strike a balance between the interests of

the individual being stopped and the interests of the state in

effectively preventing, detecting, and investigating crimes.

"Reasonable suspicion is a less exacting standard than

probable cause." People v. Ward, 371 Ill. App. 3d 382, 412

(2007). In evaluating whether reasonable suspicion exists, a

court should objectively consider whether the information known

to the officer at the time of the stop "'would warrant a person

of reasonable caution to believe a stop was necessary to investi-

gate the possibility of criminal activity.'" People v. Delaware,

314 Ill. App. 3d 363, 368, 731 N.E.2d 904, 909 (2000), quoting

People v. Walters, 256 Ill. App. 3d 231, 234, 627 N.E.2d 1280,

1283 (1994). In addition, a court "should consider the quality

and content of information known to officers as well as the

reliability of the source of the information." People v.

Lampitok, 207 Ill. 2d 231, 257, 798 N.E.2d 91, 108 (2003).

B. Use of Informants' Tips To Justify Terry Stops

An officer may initiate a Terry stop based on informa-

tion provided by a third party if the information is reliable and

"allows an officer to reasonably infer that a person was involved

in criminal activity." People v. Jackson, 348 Ill. App. 3d 719,

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729, 810 N.E.2d 542, 553 (2004). In In re J.J., 183 Ill. App. 3d

381, 385-86, 539 N.E.2d 764, 766 (1989), the Second District

noted that not all informants' tips should be treated the same

and wrote as follows:

"[T]ips may vary greatly in their value and

reliability and *** one simple rule will not

cover every situation. Where some tips,

completely lacking in indicia of reliability,

would warrant either no police response or

require further investigation before a stop

would be justified, other situations, such as

when a victim of a crime seeks immediate

police aid and describes his assailant or

when a credible informant warns of a specific

impending crime, would justify the police

making an appropriate response."

In evaluating the reliability of a tip, courts may give

greater weight to information provided by an eyewitness or victim

of a crime than they would to information provided by persons who

do not fall into those categories. Jackson, 348 Ill. App. 3d at

730, 810 N.E.2d at 554; see also People v. Brown, 356 Ill. App.

3d 1088, 1090, 828 N.E.2d 351, 354 (2005) ("a description from an

eyewitness is given particularly great weight in determining

whether an officer has a reasonable suspicion to justify a

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stop"). As the Second District explained in Village of Mundelein

v. Thompson, 341 Ill. App. 3d 842, 852, 793 N.E.2d 996, 1004

(2003), a strong inference that a person is a direct witness to

the offense is more indicative of reliability than a weak infer-

ence that the tipster had a source of inside information.

Further, an informant who is a chance witness "is much less

likely to have a malicious hidden agenda than an informant with a

source of inside information." Thompson, 341 Ill. App. 3d at

852, 793 N.E.2d at 1004.

The Supreme Court of New Hampshire in State v. Sousa,

151 N.H. 297, 303-04, 855 A.2d 1284, 1290 (2004), recently

provided a list of factors to be considered when evaluating

whether an anonymous tip gives rise to reasonable suspicion and

wrote as follows:

"First, whether there is a 'sufficient quan-

tity of information' such as the vehicle's

make, model, license plate number, location

and bearing, and 'similar innocent details'

so that the officer may be certain that the

vehicle stopped is the one the tipster iden-

tified. [Citation.] Second, the time inter-

val between the police receiving the tip and

the police locating the suspect vehicle.

[Citation.] Third, whether the tip is based

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 upon contemporaneous eyewitness observations.

[Citations.] Fourth, whether the tip is

sufficiently detailed to permit the reason-

able inference that the tipster has actually

witnessed an ongoing motor vehicle offense."

Sousa, 151 N.H. at 303-04, 855 A.2d at 1290.

C. Informants' Tips Made to Police Emergency Numbers

In Ledesma, 206 Ill. 2d at 583, 795 N.E.2d at 262, our

supreme court discussed the use of tips received by telephone as

the basis for a Terry stop and wrote as follows:

"Where an informant's tip is received by

telephone, it may form the basis for a lawful

Terry stop, but the information must bear

some indicia of reliability, and the informa-

tion upon which the police act must establish

the requisite quantum of suspicion."

One factor in evaluating the reliability of telephone

tips is whether the call was made to a police emergency number.

For example, in State v. Golotta, 178 N.J. 205, 219-20, 837 A.2d

359, 367-68 (2003), the Supreme Court of New Jersey explained the

reliability of a 9-1-1 call, as follows:

"[W]e agree with the State that a 9-1-1

call carries a fair degree of reliability

inasmuch as 'it is hard to conceive that a

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person would place himself or herself at risk

of a criminal charge by making such a call.'

The police maintain records of 9-1-1 calls

not only for the purpose of responding to

emergency situations but to investigate false

or intentionally misleading reports. *** On

balance, we are satisfied that in an expand-

ing number of cases[,] the 9-1-1 system pro-

vides the police with enough information so

that users of that system are not truly anon-

ymous even when they fail to identify them-

selves by name.

Accordingly, the State stands on firm

constitutional ground when it treats the

anonymous 9-1-1 caller in the same fashion as

it would an identified citizen informant who

alerts the police to an emergent situation.

*** Analogous to a report offered by a citi-

zen informant, the information imparted by a

9-1-1 caller should not be 'viewed with the

same degree of suspicion that applies to a

tip by a confidential informant.' [Wildoner

v. Borough of Ramsey, 162 N.J. 375, 390, 744

A.2d 1146, 1155 (2000).]"

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 In a concurring opinion in Florida v. J.L., 529 U.S.

266, 276, 146 L. Ed. 2d 254, 263-64, 120 S. Ct. 1375, 1381 (2000)

(Kennedy, J., concurring), Justice Kennedy discussed the distinc-

tion between telephone tips that are "truly anonymous" and those

placed to police emergency numbers where the caller's identity

may at some point become known:

"If an informant places his anonymity at

risk, a court can consider this factor in

weighing the reliability of the tip. ***

Instant caller identification is widely

available to police, and, if anonymous tips

are proving unreliable and distracting to

police, squad cars can be sent within seconds

to the location of the telephone used by the

informant. Voice recording of telephone tips

might, in appropriate cases, be used by po-

lice to locate the caller. It is unlawful to

make false reports to the police [citations],

and the ability of the police to trace the

identity of anonymous telephone informants

may be a factor which lends reliability to

what, years earlier, might have been consid-

ered unreliable anonymous tips."

A recent concurring opinion by a Wisconsin Supreme

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Court justice clarified this point, as follows:

"The recorded call and its subsequent

transcript show both the caller's basis of

information and the caller's reliability.

The fact that the police agency either knew

the identity of the caller or had the means

to discover the caller's identity enhances

the caller's credibility. The police were in

a position to go back to their source. If

the information provided had turned out to be

untrue, the police would have been able to

follow up and confront the caller, demand an

explanation, and pursue criminal charges."

State v. Williams, 241 Wis. 2d 631, 670-71,

623 N.W.2d 106, 124 (2001) (Prosser, J.,

concurring).

In People v. Polander, 41 P.3d 698, 702-03 (Colo.

2001), we find further support for viewing informants' tips to

police emergency numbers as having greater indicia of reliability

than anonymous tips. In that case, the Supreme Court of Colorado

decided that a late-night tip from an unnamed Burger King em-

ployee reporting that (1) two vehicles had been parked in the

Burger King parking lot for about 30 minutes and (2) an employee

had observed the occupants passing a marijuana pipe back and

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forth was sufficient to provide articulable suspicion for an

investigatory stop of the occupants of one of the vehicles. In

so concluding, the court noted that "[i]t has long been recog-

nized that assessing the veracity of average citizens who may be

victims or witnesses reporting crime does not pose the same

problem as assessing the veracity of informants from the criminal

milieu." Polander, 41 P.3d at 703. Citing Justice Kennedy's

concurring opinion in J.L., the court further noted that it has

been accepted that someone providing the police with a tip who

identified himself made it possible to determine whether he had

an ulterior motive for reporting, thereby placing himself at some

risk of reprisal or of jeopardy for false reporting. Thus, the

court opined that placing one's anonymity at risk is a factor to

be considered in weighing reliability. Polander, 41 P.3d at 703-

04. The court concluded by reversing the trial court's order

suppressing evidence and statements as the fruit of an illegal

investigatory stop, noting that the Burger King caller in this

case had provided "significant information about both his or her

veracity and basis of knowledge." Polander, 41 P.3d at 704.

D. Lessened Corroboration of Informants' Tips
Concerning Suspected Drunk Drivers

Some courts have concluded that less rigorous corrobo-

ration of tips is needed when the tip concerns a suspected drunk

driver. An intoxicated person behind the wheel of a car presents

an imminent danger to the public that is difficult to thwart by

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means other than a Terry stop. See, for example, United States

v. Wheat, 278 F.3d 722, 732 n.8 (8th Cir. 2001) ("The rationale

for allowing less rigorous corroboration of tips alleging erratic

driving is that the imminent danger present in this context is

substantially greater (and more difficult to thwart by less

intrusive means) than the danger posed by a person in possession

of a concealed handgun"); State v. Tucker, 19 Kan. App. 2d 920,

931, 878 P.2d 855, 864 (1994) ("[t]he risk of danger presented to

the public by a drunken driver is so great that we cannot afford

to impose strict, verifiable conditions on an anonymous tip

before an investigatory stop can be made in response to such a

tip"); State v. Stolte, 991 S.W.2d 336, 343 (Tex. Ct. App. 1999)

(describing the "immediate threat to public safety" caused by

drunk drivers in upholding an investigative stop based on infor-

mation provided by an informant's tip).

In Rutzinski, the Supreme Court of Wisconsin explained

that no blanket rule exists excepting tips alleging drunk driving

from normal reliability requirements. Nonetheless, that court

acknowledged the Supreme Court's caveat that "'extraordinary

dangers sometimes justify [extraordinary] precautions.'"

Rutzinski, 241 Wis. 2d at 751, 623 N.W.2d at 527, quoting J.L.,

529 U.S. at 272, 146 L. Ed. 2d at 261, 120 S. Ct. at 1379. The

Rutzinski court accordingly rejected the defendant's argument

that the arresting officer should have waited until he personally

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observed signs that the defendant may have been intoxicated

before initiating the traffic stop. Noting that in 1999, the

United States suffered 15,786 fatalities in alcohol-related

traffic accidents, "an average of 1 fatality every 33 minutes,"

the Rutzinski court quoted approvingly from the Vermont Supreme

Court in State v. Boyea, 765 A.2d 862, 867 (Vt. 2000), as fol-

lows:

"'In contrast to the report of an indi-

vidual in possession of a gun [as in J.L.],

an anonymous report of an erratic or drunk

driver on the highway presents a qualita-

tively different level of danger, and concom-

itantly greater urgency for prompt action.

In the case of a concealed gun, the posses-

sion itself might be legal, and the police

could, in any event, surreptitiously observe

the individual for a reasonable period of

time without running the risk of death or

injury with every passing moment. An officer

in pursuit of a reportedly drunk driver on a

freeway does not enjoy such a luxury. In-

deed, a drunk driver is not at all unlike a

"bomb," and a mobile one at that.'"

Rutzinski, 241 Wis. 2d at 749, 623 N.W.2d at

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 526.

The Supreme Court of New Jersey in Golotta expressed

similar concerns when it wrote that a factor warranting a reduced

degree of corroboration is the reality that intoxicated drivers

pose a significant risk to themselves and to the public.

Golotta, 178 N.J. at 221, 837 A.2d at 368. Reaffirming its

earlier description of such drivers as "'moving time bombs'" (see

State v. Tischio, 107 N.J. 504, 519, 527 A.2d 388, 396 (1987)),

the Golotta court wrote the following:

"Because the Constitution 'is not a

suicide pact' [citation], it permits courts

to consider exigency and public safety when

evaluating the reasonableness of police con-

duct. *** The risk to life and safety posed

by an intoxicated or erratic driver convinces

us that it is reasonable and, therefore,

constitutional for the police to act on in-

formation furnished by an anonymous 9-1-1

caller without the level of corroboration

that traditionally would be necessary to

uphold such action." Golotta, 178 N.J. at

221, 837 A.2d at 368-69.

Because we agree with the holdings and analyses of the

aforementioned cases, we hold that informants' tips regarding

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possible incidents of drunk driving require less rigorous corrob-

oration than tips concerning matters presenting less imminent

danger to the public.

E. The Terry Stop in This Case

Defendant argues that the trial court erred by denying

his petition to rescind the statutory summary suspension because

DeGroot did not have a reasonable, articulable suspicion to

justify a Terry stop of defendant's car. Specifically, he

contends that (1) the statement of the Wendy's employee that

DeGroot heard from dispatch did not bear sufficient indicia of

reliability to establish the requisite quantum of suspicion and

(2) DeGroot acted solely upon a conclusory and uncorroborated

opinion of an unknown Wendy's employee that an intoxicated patron

at the restaurant's drive-thru was causing a disturbance. For

the following reasons, we disagree.

1. Standard of Review

Generally, this court will not disturb a trial court's

decision to deny a petition to rescind statutory summary suspen-

sion unless that decision was against the manifest weight of the

evidence. People v. Rozela, 345 Ill. App. 3d 217, 222, 802

N.E.2d 372, 376 (2003). However, because the trial court's

ruling in this case did not involve a determination of witness

credibility, this court will review it de novo. De novo review

is appropriate when neither facts nor credibility of witnesses is

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questioned. Ledesma, 206 Ill. 2d at 576, 795 N.E.2d at 258.

2. Defendant's Claim That the Tip Was Unreliable

Defendant first contends that the statement of the

Wendy's employee that DeGroot heard from dispatch did not bear

sufficient indicia of reliability to establish the requisite

quantum of suspicion. We disagree.

Initially, we disagree with defendant's characteriza-

tion of the Wendy's employee as an "anonymous" informant. The

Jacksonville police knew that the call they had received at 1

a.m. came from the only Wendy's restaurant in the Jacksonville

area. The caller identified him or herself as an employee of

Wendy's. We agree with the decisions earlier cited that an

emergency call to police should not be viewed as an "anonymous"

tip or with the skepticism applied to tips provided by confiden-

tial informants. See, for example, Golotta, 178 N.J. at 219, 837

A.2d at 367 (noting that calls to police emergency lines provide

the police with enough information so that such callers are not

truly anonymous).

Further, using the set of factors set forth in Sousa,

151 N.H. at 303-04, 855 A.2d at 1290, we conclude that the tip in

this case was reliable. First, the timing of the tip provided

DeGroot with sufficient basis for believing that the car he was

stopping shortly after it pulled out of the Wendy's parking lot

was the one the tipster had called about. We note that defendant

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does not argue that any other cars were in the parking lot or

that DeGroot may have followed the wrong car. Second, the time

interval between DeGroot's receiving the tip and his locating the

suspect car could hardly be smaller. Third, the tip clearly was

based upon contemporaneous eyewitness observations by the Wendy's

employee at the drive-thru window. And fourth, the tip was

sufficiently detailed to permit a reasonable inference that the

tipster had actually witnessed what he or she described--namely,

that defendant had created a disturbance and was intoxicated at

the drive-thru window.

On this latter point, we note that transactions at

restaurant drive-thru windows occur between individuals in close

enough proximity that a hand-to-hand exchange of food and money

is made. The record is silent as to just what defendant did

during this transaction that caused the Wendy's employee enough

concern to call the Jacksonville police, but the closeness of the

quarters between the employee and defendant supports the reli-

ability of the employee's observations. That is, the employee

would clearly be in a position to determine, both from defen-

dant's speech and odor, that he was intoxicated. Further,

defendant's "creating a disturbance" during the transaction would

serve to corroborate the employee's other views about defendant's

intoxication.

3. Defendant's Claim That DeGroot Acted Solely
Upon a Conclusory and Uncorroborated Opinion

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 Defendant also contends that the Wendy's employee who

called the Jacksonville police "provided no specific information

describing the disturbance allegedly caused by the customer, nor

did the caller factually support his or her opinion that the

customer was intoxicated." Defendant thus asserts that DeGroot's

decision to stop defendant's car was based on nothing more than a

hunch. For the reasons we have already set forth in rejecting

defendant's contention that the tip was unreliable, we disagree.

Also, as previously stated, informants' tips regarding possible

incidents of drunk driving require less rigorous corroboration.

We thus conclude that the telephone tip provided

DeGroot with the requisite quantum of suspicion to justify the

Terry stop of defendant's car. Accordingly, we further conclude

that the trial court did not err by denying defendant's petition

to rescind the statutory summary suspension.

In so concluding, we reject defendant's claim that

DeGroot should have followed defendant's car until he observed

evidence of impaired driving. As earlier discussed, DUI is

sufficiently dangerous to the public that it would have been

irresponsible for DeGroot, having received the tip, to simply

follow defendant's car and wait for potentially catastrophic

results to occur.

4. The Reasons Why DeGroot Stopped Defendant's Car

The record contains no explicit statement by DeGroot

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that he stopped defendant's car because he feared defendant was

driving drunk, based upon the information called in by the

Wendy's employee. Had DeGroot been asked, he might even have

testified that he stopped defendant's car was because he believed

that defendant had caused a disturbance at the drive-thru window,

not because of any concern that defendant was a possible drunk

driver. None of that matters. Nor does it matter that the trial

court indicated that it believed DeGroot stopped defendant's car

"based upon the [reported] disturbance, not the intoxication."

The United States Supreme Court in Devenpeck v. Alford,

543 U.S. 146, 153, 160 L. Ed. 2d 537, 545, 125 S. Ct. 588, 593-94

(2004), recently reiterated

"that an arresting officer's state of mind

(except for the facts that he knows) is ir-

relevant to the existence of probable cause.

[Citations.] That is to say, his subjective

reason for making the arrest need not be the

criminal offense as to which the known facts

provide probable cause."

The Court noted that "'evenhanded law enforcement is best

achieved by the application of objective standards of conduct,

rather than standards that depend upon the subjective state of

mind of the officer.'" Devenpeck, 543 U.S. at 153, 160 L. Ed. 2d

at 545, 125 S. Ct. at 593-94, quoting Horton v. California, 496

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U.S. 128, 138, 110 L. Ed. 2d 112, 124, 110 S. Ct. 2301, 2308-09

(1990).

Although the issue in Devenpeck was whether probable

cause existed, we see no reason why the Court's analysis should

not also apply to the issue in this case--namely, whether the

officer had a reasonable, articulable suspicion to justify a

Terry stop.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

APPLETON and COOK, JJ., concur.

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