Filed 10/20/09 NO. 4-09-0166
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Jersey County
ROBERT G. McDONOUGH, ) No. 08DT161
Defendant-Appellee. )
) Honorable
) Eric S. Pistorius,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
Absent police misconduct, the exclusionary rule does
not apply. In this driving-under-the-influence-of-alcohol (DUI)
case, the trial court granted defendant's motion to suppress
evidence on the ground that the state trooper involved had
improperly seized defendant. Because the state trooper did not
engage in any police misconduct, the exclusionary rule does not
apply to this case. Accordingly, we reverse the trial court's
order suppressing evidence and remand for further proceedings.
I. BACKGROUND
A. Defendant's Arrest
On October 12, 2008, Illinois State Police Trooper Greg
Brunnworth, while on routine patrol, noticed a car stopped on the
narrow shoulder of a busy highway. He decided to inquire whether
the driver (who later turned out to be defendant, Robert G.
McDonough) needed assistance. The trooper stopped his squad car
behind defendant's car and activated his overhead emergency
lights. He then approached defendant's car and asked him whether
"everything was O.K." The subsequent exchange resulted in
defendant's arrest for DUI (625 ILCS 5/11-501(a)(2) (West 2008)).
B. Defendant's Motion To Suppress
In November 2008, defendant filed a motion to suppress,
arguing that because the trooper did not have a valid reason to
approach his car and question him, the trial court should sup-
press the evidence the trooper obtained as a result of doing so.
The evidence presented at defendant's December 2008
hearing on his motion, which consisted of testimony from the
trooper and defendant, as well as a videotape from the trooper's
squad car that showed his encounter with defendant, showed the
following.
On October 12, 2008, at about 7:30 p.m., the trooper
was on routine patrol in his marked squad car on State Highway
100 near Grafton, which he described as a busy, four-lane highway
with two lanes in each direction separated by a center median.
As he traveled westbound, he noticed a car stopped on the shoul-
der of the eastbound lanes that had not been there 10 minutes
earlier. It was occupied by a driver and a passenger. Although
the trooper did not notice anything unusual, he decided to
inquire whether the occupants needed assistance. The trooper
parked behind the stopped car and turned on his overhead emer-
gency lights for safety reasons because (1) it was dark outside
and (2) "a lot of traffic" was present. (During the hearing, the
court commented that the videotape showed the stopped car was on
the shoulder six to eight inches from the highway, which was the
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maximum amount of space the shoulder would allow.) The trooper
acknowledged that, as he parked behind the stopped car, he still
did not notice anything unusual.
The trooper, who was wearing his police uniform,
approached the car and asked defendant, who was the driver,
whether "everything was okay." Defendant "cracked" his car
window open and responded that he was waiting for a friend.
Almost immediately, the trooper detected the odor of alcohol on
defendant's breath. When the trooper asked defendant whether he
had recently consumed alcohol, defendant replied that he had had
"three." The trooper asked defendant if he would submit to a
field-sobriety test. Defendant agreed and did so. The trooper
thereafter arrested him for DUI.
Defendant testified that he (1) was waiting on the
shoulder of the highway for a friend who had stopped at a gas
station, (2) first noticed the squad car when the trooper acti-
vated his overhead emergency lights behind defendant's car, (3)
did not feel that he was free to drive away, (4) felt compelled
to answer the trooper's questions, and (5) did not think he could
refuse to perform the field-sobriety tests. Defendant admitted
that he refused to perform the last field-sobriety test the
trooper attempted to administer because, at that point, defendant
surmised that the trooper was about to arrest him.
The record also showed that (1) defendant had an open
container of alcohol in his vehicle; (2) on the night of defen-
dant's arrest, the trooper notified him of the State's intention
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to suspend his driver's license under section 11-501.1 of the
Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.1 (West
2008)), because defendant "refused to submit to or failed to
complete" a Breathalyzer test; and (3) on November 27, 2008, the
State suspended his driver's licence.
The trial court took defendant's motion under advise-
ment, and in January 2009, the court entered the following
written order on that motion:
"In determining whether a community[-]
caretaking encounter with a police officer
rises to the level of a Terry stop, the ques-
tion is whether, under the circumstances, a
reasonable person would feel free to drive
away from the officer. The officer testified
that after pulling in behind defendant's
vehicle[,] he activated his overhead lights.
This court finds that under said
circumstances[,] a reasonable person would
not feel free to pull away.
Defendant's [m]otion to [s]uppress ***
is hereby granted. Cause stricken."
See Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88
S. Ct. 1868, 1880 (1968) (police may conduct a limited investiga-
tory stop of an individual where there exists a reasonable
suspicion, based on articulable facts, that the individual is
about to commit a crime).
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The State filed a motion to reconsider the trial
court's written order granting defendant's motion to suppress.
In March 2009, the court denied the State's motion, finding that
once the trooper activated his overhead emergency lights, a
reasonable person would not have felt free to leave, and the
trooper's doing so advanced the encounter to a Terry stop that
was unsupported by a reasonable suspicion of criminal activity.
C. Defendant's Petition To Rescind the Statutory
Summary Suspension of His Driver's License
Shortly after the trial court granted his motion to
suppress, defendant filed a petition for hearing under section 2-
118.1 of the Vehicle Code (625 ILCS 5/2-118.1 (West 2008)),
seeking rescission of the State's statutory summary suspension of
his driver's license. The court later entered a written order
rescinding defendant's statutory summary suspension based on its
January 2009 order granting defendant's motion to suppress.
This appeal followed.
II. THE TRIAL COURT'S ORDER GRANTING
DEFENDANT'S MOTION TO SUPPRESS
A. The Standard of Review
"'In determining whether a trial court has properly
ruled on a motion to suppress, findings of fact and credibility
determinations made by the trial court are accorded great defer-
ence and will be reversed only if they are against the manifest
weight of the evidence.'" People v. Griffin, 385 Ill. App. 3d
202, 207, 898 N.E.2d 704, 708 (2008), quoting People v. Slater,
228 Ill. 2d 137, 149, 886 N.E.2d 986, 994 (2008). However, this
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court reviews de novo the trial court's determination of whether
suppression is warranted under those facts. People v. Gherna,
203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003).
B. The Exclusionary Rule Only Applies When the Police Engage
in Misconduct That Violates the Fourth Amendment
Several years ago in another DUI case, this court
addressed the defendant's argument that a police officer cannot
lawfully ask a driver arrested for DUI on private property to
submit to the Breathalyzer test. See People v. Garriott, 253
Ill. App. 3d 1048, 1052, 625 N.E.2d 780, 784 (1993). We noted
in Garriott that the defendant in effect was asking this court to
impose an exclusionary rule prohibiting the introduction of a
driver's refusal simply because the officer lacked statutory
authority to require him to take the Breathalyzer test.
Garriott, 253 Ill. App. 3d at 1052-53, 625 N.E.2d at 784. We
rejected that argument and wrote the following: "No exclusionary
rule should apply here because the officer did nothing wrong;
although he had no authority to require defendant to take the
[B]reathalyzer test, the officer did nothing wrong by requesting
defendant to take the test." (Emphases in original.) Garriott,
253 Ill. App. 3d at 1052-53, 625 N.E.2d at 784. We later under-
scored that conclusion as follows: "In the absence of any police
misconduct, the exclusionary rule does not apply." Garriott, 253
Ill. App. 3d at 1053, 625 N.E.2d at 785.
The most recent decision of the United States Supreme
Court concerning the exclusionary rule reinforces our conclusion
in Garriott. In Herring v. United States, 555 U.S. ___, 172 L.
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Ed. 2d 496, 129 S. Ct. 695 (2009), the Supreme Court addressed a
situation in which an officer reasonably believed that there was
an outstanding arrest warrant for the defendant, but that belief
turned out to be wrong because of a bookkeeping error committed
by another police employee. The Supreme Court noted the parties'
agreement that the ensuing arrest was a violation of the fourth
amendment. However, the parties disputed whether the
exclusionary rule should be applied to the contraband found
during a search incident to the defendant's arrest. Herring, 555
U.S. at ___, 172 L. Ed. 2d at 502, 129 S. Ct. at 698. The
Supreme Court agreed with the government's position that suppres-
sion was not appropriate, noting that its cases "establish[ed]
that such suppression is not an automatic consequence of a
[f]ourth[-a]mendment violation. Instead, the question turns on
the culpability of the police and the potential of exclusion to
deter wrongful police conduct." Herring, 555 U.S. at ___, 172 L.
Ed. 2d at 502, 129 S. Ct. at 698. The Court further explained
its holding as follows:
"The fact that a [f]ourth[-a]mendment
violation occurred--i.e., that a search or
arrest was unreasonable--does not necessarily
mean that the exclusionary rule applies.
[Citation.] Indeed, exclusion 'has always
been our last resort, not our first impulse'
[citation], and our precedents establish
important principles that constrain applica-
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tion of the exclusionary rule.
*** We have repeatedly rejected the
argument that exclusion is a necessary conse-
quence of a [f]ourth[-a]mendment violation."
Herring, 555 U.S. at ___, 172 L. Ed. 2d at
504, 129 S. Ct. at 700.
The Supreme Court further emphasized that "[t]he
exclusionary rule was crafted to curb police rather than judicial
misconduct" (Herring, 555 U.S. at ___, 172 L. Ed. 2d at 505, 129
S. Ct. at 701) and noted that the extent to which the exclusion-
ary rule is justified varies with the culpability of the law-
enforcement conduct. Thus, "'an assessment of the flagrancy of
the police misconduct constitutes an important step in the
calculus' of applying the exclusionary rule." Herring, 555 U.S.
at ___, 172 L. Ed. 2d at 506, 129 S. Ct. at 701, quoting United
States v. Leon, 468 U.S. 897, 911, 82 L. Ed. 2d 677, 691, 104 S.
Ct. 3405, 3414 (1984). The Supreme Court later expanded upon
this theme by noting that "[t]o trigger the exclusionary rule,
police conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system."
Herring, 555 U.S. at ___, 172 L. Ed. 2d at 507, 129 S. Ct. at
702. The Court concluded its decision in Herring as follows:
"Petitioner's claim that police negli-
gence automatically triggers suppression
cannot be squared with the principles under-
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lying the exclusionary rule, as they have
been explained in our cases. In light of our
repeated holdings that the deterrent effect
of suppression must be substantial and out-
weigh any harm to the justice system [cita-
tion], we conclude that when police mistakes
are the result of negligence such as that
described here, rather than systemic error or
reckless disregard of constitutional require-
ments, any marginal deterrence does not 'pay
its way.' [Citation.] In such a case, the
criminal should not 'go free because the
constable has blundered.' People v. Defore,
242 N.Y. 12, 21, 150 N.E. 585, 587 (1926)
(opinion of the Court by Cardozo, J.)."
Herring, 555 U.S. at ___, 172 L. Ed. 2d at
509, 129 S. Ct. at 704.
Given that the Supreme Court began its discussion in
Herring by accepting the concession of the parties that a fourth-
amendment violation had occurred in that case, we distill the
Supreme Court's holding as supportive of the point this court
made in Garriott 16 years ago: absent police misconduct, the
exclusionary rule does not apply. The reason why is simple: if
the justification for the exclusionary rule is solely to deter
police misconduct (as the Supreme Court reaffirmed in Herring),
then the necessary condition precedent for the exclusionary
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rule's application is police misconduct. Thus, absent police
misconduct, the exclusionary rule does not apply because there is
no misconduct to deter.
The trial court here deemed defendant to be "detained"
solely as a result of the trooper's activating the overhead
emergency lights on his police car. The court concluded that the
trooper's doing so violated the fourth amendment because, when
the trooper activated those overhead lights, he had no legitimate
basis for the "detention" he thereby caused. Based upon Herring
and Garriott, we disagree with this conclusion because the
trooper's activation of his overhead emergency lights did not
constitute police misconduct, even if the trial court were
correct that this action constituted a violation of the fourth
amendment.
C. No Police Misconduct Occurred in This Case
The rule that absent police misconduct, the
exclusionary rule does not apply is dispositive in this case
because we conclude that no police misconduct occurred here. We
further conclude that the trooper's activating his emergency
lights as he pulled behind a stopped vehicle on a busy four-lane
highway not only did not constitute misconduct, it was the
entirely prudent and appropriate thing for the trooper to do.
Indeed, his failure to do so could very well be viewed as danger-
ous.
In this case, the trial court granted defendant's
motion to suppress because it found that the trooper had seized
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defendant in violation of his fourth-amendment rights the moment
the trooper activated his overhead emergency lights. By so
finding, the court essentially declared that whenever a police
officer approaches an already stopped vehicle and activates his
overhead emergency lights in the absence of reasonable suspicion
that criminal activity has or will occur, regardless of the other
circumstances that may be present, the officer's action is
unlawful and should be deterred by employing the exclusionary
rule.
We disagree with the trial court. Its finding places a
police officer in the unreasonable position of compromising not
only his safety, but also the safety of any occupants of the
stopped vehicle. Further, other motorists using the highway may
be put at risk because of a police car parked on the highway
shoulder without its emergency lights activated to warn of its
presence.
As a matter of law, we reject the trial court's narrow
interpretation regarding a police officer's use of his overhead
emergency lights and the unreasonable bright-line rule that such
a determination creates. Although police officers often use
emergency overhead lights to communicate their intent to engage
in an investigatory stop or detention, overhead emergency lights
also serve other purposes--as in this case--like warning ap-
proaching motorists to be mindful of the presence of cars located
on the shoulder of a busy highway after dusk.
Stopping on or near a highway is one of the most
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dangerous aspects of police work. Statistics compiled by the
Federal Bureau of Investigation show that between 1998 and 2007,
124 on-duty officers were killed after being struck by vehicles
during the performance of official police duties. Federal Bureau
of Investigation, Law Enforcement Officers Killed and Assaulted
2007, tbl. 61, available at
http://www.fbi.gov/urc/killed/2007/data/table_61.html (last
visited October 7, 2007). Those duties, which include making
traffic stops and assisting motorists, constitute the third
leading cause of death for on-duty police officers. Federal
Bureau of Investigation, Law Enforcement Officers Killed and
Assaulted 2007, tbl. 61, available at
http://www.fbi.gov/urc/killed/2007/data/table_61.html (last
visited October 7, 2007). Given those statistics, we are mindful
of the need to ensure officer safety during roadside stops.
In any event, we deem nothing of the trooper's activi-
ties remotely close to the police misconduct the Supreme Court
discussed in Herring that would trigger suppression. For in-
stance, nothing about the trooper's activation of his emergency
lights represents "the flagrancy of police misconduct" that
constitutes an important step in the calculus of applying the
exclusionary rule. Herring, 555 U.S. at ___, 172 L. Ed. 2d at
506, 129 S. Ct. at 701. Nor do the trooper's actions constitute
"systemic error or reckless disregard of constitutional require-
ments" (Herring, 555 U.S. at ___, 172 L. Ed. 2d at 509, 129 S.
Ct. at 704), or the "culpability of the police," thereby suggest-
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ing "the potential of exclusion to deter wrongful police conduct"
(Herring, 555 U.S. at ___, 172 L. Ed. 2d at 502, 129 S. Ct. at
698). In sum, the trooper did nothing improper in this case.
Because no police misconduct is present, the exclusionary rule
does not apply.
III. THE RESCISSION OF THE STATUTORY SUMMARY SUSPENSION
The State also argues that the trial court erred by
rescinding the statutory summary suspension of defendant's
driver's license. Specifically, the State contends, in part,
that the court's written order is void because the court did not
hold a hearing as required by section 2-118.1(b) of the Vehicle
Code (625 ILCS 5/2-118.1(b) (West 2008)). Defendant responds
that this court lacks jurisdiction to consider the court's
rescission determination because the State failed to specifically
appeal that decision, which defendant contends is a separate and
distinct civil proceeding. However, because the court based its
decision to rescind defendant's statutory summary suspension
solely on its January 2009 order granting defendant's motion to
suppress--which this court has determined was in error--we need
not and do not address the merits of the State's argument. See
134 Ill. 2d R. 615(a) (on appeal, "[a]ny error, defect, irregu-
larity, or variance which does not affect substantial rights
shall be disregarded"). Instead, we vacate the court's order
rescinding the statutory summary suspension.
IV. CONCLUSION
For the reasons stated, we reverse the trial court's
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order granting defendant's motion to suppress and remand for
further proceedings. We also vacate the court's order rescinding
defendant's statutory summary suspension.
Reversed in part and vacated in part; cause remanded
for further proceedings.
TURNER, J., concurs.
MYERSCOUGH, J., specially concurs.
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JUSTICE MYERSCOUGH, specially concurring:
I respectfully specially concur. In this case, no
fourth-amendment violation occurred. Although defendant was
seized, the seizure was proper under the community-caretaking
doctrine. See People v. Luedemann, 222 Ill. 2d 530, 546, 857
N.E.2d 187, 197 (2006) ("Courts use the term 'community
caretaking' to uphold searches or seizures as reasonable under
the fourth amendment when police are performing some function
other than investigating the violation of a criminal statute");
People v. Damian, 374 Ill. App. 3d 941, 944-45, 873 N.E.2d 1, 5
(2007) (officer checking on the well-being of an individual was
engaged in community-caretaking functions when he observed
actions by the defendant that gave the officer probable cause to
arrest him).
I write separately to note my disagreement with the
majority's decision to forgo an analysis of whether the fourth
amendment was violated, instead determining only whether, assum-
ing a violation of the fourth amendment occurred, the
exclusionary rule should apply.
The majority finds that "[a]bsent police misconduct,
the exclusionary rule does not apply." Slip op. at 1. This
appears, at first blush, to be a logical extension of Herring,
555 U.S. , 172 L. Ed. 2d at 502, 129 S. Ct. at 698 (holding
that the exclusionary rule did not apply where a negligent
bookkeeping error by a police employee in another county resulted
in the arrest of the defendant without probable cause or a
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warrant). However, I have two concerns: (1) the United States
Supreme Court has consistently held that whether the fourth
amendment has been violated and whether exclusion is the appro-
priate sanction for the violation are separate issues; and (2)
the proposed test leaves unclear the conduct that should be
examined when determining whether "misconduct" occurred and
deprives the trial courts and law-enforcement personnel of
guidance as to what is and is not permissible under the fourth
amendment.
A fourth-amendment violation does not always require
that evidence be suppressed. See Leon, 468 U.S. at 906-07, 82 L.
Ed. 2d at 687-88, 104 S. Ct. at 3411-12 (holding that the
exclusionary rule would not be applied where the evidence was
obtained by officers acting in reasonable reliance on a search
warrant issued by a detached, neutral magistrate even though the
search warrant was subsequently found to be unsupported by
probable cause). In fact, whether the fourth amendment has been
violated and whether exclusion is the appropriate sanction for
the violation are separate issues. See Leon, 468 U.S. at 906, 82
L. Ed. 2d at 688, 104 S. Ct. at 3412, quoting Illinois v. Gates,
462 U.S. 213, 223, 76 L. Ed. 2d 527, 538-39, 103 S. Ct. 2317,
2324 (1983) ("Whether the exclusionary sanction is appropriately
imposed in a particular case, our decisions make clear, is 'an
issue separate from the question whether the [f]ourth[-a]mendment
rights of the party seeking to invoke the rule were violated by
police conduct'"); Arizona v. Evans, 514 U.S. 1, 10, 131 L. Ed.
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2d 34, 44, 115 S. Ct. 1185, 1191 (1995) (same); see also People
v. Sutherland, 223 Ill. 2d 187, 227, 860 N.E.2d 178, 208 (2006)
(exclusion of evidence is a separate issue from legality of the
search).
"The exclusionary rule operates as a judicially created
remedy designed to safeguard against future violations of
[f]ourth[-a]mendment rights through the rule's general deterrent
effect." Evans, 514 U.S. at 10, 131 L. Ed. 2d at 44, 115 S. Ct.
at 1191. The exclusionary rule should apply only where exclusion
will result in appreciable deterrence and where the benefit of
deterrence outweighs the cost. Herring, 555 U.S. at , ,
172 L. Ed. 2d at 504-05, 507, 129 S. Ct. at 700, 702 (also noting
the purpose of the exclusionary rule is to "deter deliberate,
reckless, or grossly negligent conduct, or in some circumstances,
recurring or systemic negligence").
The majority here appears to combine the two analyses--
whether the fourth amendment was violated and whether the
exclusionary rule should apply. At first, the majority appears
to simply assume a fourth-amendment violation occurred. Slip op.
at 10 (finding "the trooper's activation of his overhead emer-
gency lights did not constitute police misconduct, even if the
trial court were correct that this action constituted a violation
of the fourth amendment"). But when the majority examines
whether "misconduct" occurred that would justify the application
of the exclusionary rule, the majority examines the reasonable-
ness of the trooper's conduct. Slip op. at 10-11 (noting that
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activating the lights was "prudent," "appropriate" and important
for the safety of the officer and others). However, reasonable-
ness is the primary concern of a fourth-amendment analysis. See
People v. Salinas, 383 Ill. App. 3d 481, 491, 891 N.E.2d 884, 892
(2008). The relevant factors of an exclusionary-rule analysis
are whether exclusion would have a deterrent effect--a part of
which is examining the conduct at issue and whether it is
deterrable--and whether the benefit of exclusion outweighs the
cost. Herring, 555 U.S. at , 172 L. Ed. 2d at 504-05, 129 S.
Ct. at 700. This blending of the two analyses--one constitu-
tional and one judicially created--by the majority is incorrect.
In fact, the majority's reasoning is circular. How can
the court determine if activating the overhead lights was "mis-
conduct" without conducting the fourth-amendment analysis? In
some instances, depending on the facts, activating the overhead
light may constitute "misconduct" and other times it may not.
Further, and assuming that by examining "misconduct"
the majority means examining whether the conduct was deliberate,
reckless, or grossly negligent, the majority bypasses an examina-
tion of whether the fourth amendment has been violated. The
courts and police officers benefit from having judicial decisions
articulating what is and is not permissible under the fourth
amendment. In fact, if courts bypass a fourth-amendment analysis
enough times, it would be difficult for a defendant to show
errors arising from recurring negligence. See Herring, 555 U.S.
at , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (providing that
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the exclusionary rule serves to deter, in some circumstances,
recurring or systemic negligence).
Finally, the conduct in this case, even had it violated
the fourth amendment, was not negligent conduct or conduct based
on misinformation as was the case in Herring. This was deliber-
ate conduct. Here, the choices and actions were those of Trooper
Brunnworth and, had those choices and actions been improper,
could be deterrable. See People v. Estrada, No. 1-08-2909, slip
op. at 1, 26 (August 28, 2009), Ill. App. 3d , ,
N.E.2d , (involving the search of a parked and locked
vehicle whose recent occupant was seized absent any articulable
suspicion; the appellate court refused to relax the exclusionary
rule and distinguished Herring on the ground that the officer's
"choices and actions" were his own and not "impelled by adminis-
trative negligence or misinformation").
Because the trooper's conduct did not violate the
fourth amendment, I nonetheless concur.
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