dissenting:
I respectfully dissent. In my opinion the actions of the trial court were appropriate because the information sought by defendants’ counsel was relevant to defendants’ motion to suppress, obviously part of the general defense mounted in this case.
My disagreement with the majority has two bases. First, a trial court has discretion to order discovery of materials such as this when the question of a prosecutor’s exercise of discretion in bringing charges is at issue and inquiry into that issue may reasonably be part of the defense to the specific charges brought. (People v. Shukovsky (1988), 128 Ill. 2d 210, 538 N.E.2d 444.) In Shukovsky our supreme court upheld the trial court’s denial of a motion to quash a subpoena seeking information concerning the State’s Attorney’s exercise of discretion and charging the defendant. In that particular case the State’s Attorney had nol-prossed the same charges for insufficient evidence and then later refiled them.
The relevancy of the materials sought is the second basis of my disagreement with the majority. The fifth district has adopted the test cited in United States v. Smith (11th Cir. 1986), 799 F.2d 704, in the case of People v. Guerrieri (1990), 194 Ill. App. 3d 497, 551 N.E.2d 767. In Guerrieri, our court stated the following:
"Defendant further contends that stopping him for an alleged traffic violation was merely a pretext to search his vehicle. In determining whether an investigative stop is invalid as pretextual, the proper inquiry is whether a reasonable officer would have made the seizure in the absence of an illegitimate motive. (United States v. Smith (11th Cir. 1986), 799 F.2d 704, 708.) However, an objectively reasonable stop or other seizure is not invalid solely because the officer acted out of an improper or dual motivation. (Smith, 799 F.2d at 708-09; see also [People v. ]Assenato [(1989)], 186 Ill. App. 3d [331,] 338, 542 N.E.2d [457,] 461.) 'Whether a Fourth Amendment violation has occurred "turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” [citation] and not on the officer’s actual state of mind at the time the challenged action was taken.’ Maryland v. Macon (1985), 472 U.S. 463, 470-71, 86 L. Ed. 2d 370, 378,105 S. a. 2778, 2783, quoting Scott v. United States (1978), 436 U.S. 128, 136, 56 L. Ed. 2d 168, 177, 98 S. Ct. 1717, 1722.” Guerrieri, 194 Ill. App. 3d at 501-02, 551 N.E.2d at 770.
The case cited with approval by our court, United States v. Smith, stated the following:
"By looking to what a. reasonable officer would do rather than to what an officer validly could do, the standard we apply today to determine the validity of an allegedly pretextual investigative stop is supportive of the rationales that make Terry-stops [(Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868)] reasonable under the fourth amendment. Terry-stops are reasonable not only because of the government’s interest in investigating and alleviating officers’ suspicions of illegal activity but also because of the limited intrusiveness of such stops. 392 U.S. at 26, 88 S. Ct. at 1882, 20 L. Ed. 2d at 908-09. To maintain this balance between the competing interest of the government and the individual, each Terry-stop must be both 'justified at its inception’ and 'reasonably related in scope to the circumstances which justified the interference in the first place.’ Terry, 392 U.S. at 20, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905; see also United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (applying Terry standard to stop and detention based upon reasonable suspicion of drug possession). If officers were permitted to conduct Terry-stops based on what conceivably could give rise to reasonable suspicion of minor violations, the necessary connection between a seizure’s justification and its scope would inevitably unravel.
Were we to abandon the rule of [United States v. Cruz (5th Cir. 1978), 581 F.2d 535 (en banc)] — which, of course, this panel cannot do — police officers could easily make the random, arbitrary stops denounced in Terry. With little more than an inarticulate 'hunch’ of illegal activity an officer could begin following a vehicle and then stop it for the slightest deviation from a completely steady course. This possibility was denounced more than 30 years ago by the Florida Supreme Court in a case remarkably similar to the present one:
A holding that such a feeble reason would justify a halting and searching would mean that all travelers on the highway would hazard such treatment, for who among them would not be guilty of crossing the center line so much as a foot from time to time. All could, therefore, be subjected to inconvenience, ignominy and embarrassment ***.
Collins v. State, 65 So. 2d 61, 63 (Fla. 1953).
Like the Supreme Court of Florida, we believe that such a result would run counter to our Constitution’s promise against unreasonable searches and seizures by law enforcement officials.” (Emphasis in original.) Smith, 799 F.2d at 711.
Given the standard this court adopted for determining whether a stop is pretextual, the actions of the trial court were correct in its interpretation of the law and not an abuse of discretion. I would therefore affirm.