dissenting:
I agree with the majority that the trial court found that defendant consented to the search that led to the discovery of the firearm. However, I believe that the trial court also concluded that the consent was tainted by the officers’ detention of defendant following the original traffic stop. First, I respectfully dissent because I conclude that the trial court’s finding is not against the manifest weight of the evidence. Second, I conclude that the majority has needlessly (1) raised the issue of whether an officer has a “duty to transport” a “stranded” person; (2) found that the officers had such a duty in this case; and (3) found that the existence of the duty created exigent circumstances justifying the pat-down search for weapons.
A. Consent
At the suppression hearing, the State had the burden of proving that defendant’s consent to the search was voluntary. See Anthony, 198 Ill. 2d at 202. I agree with the majority’s characterization of one of the trial court’s findings: defendant consented to the search and was not merely acquiescing to Officer Schnizlein’s apparent authority. However, I do not subscribe to the majority’s notion that the trial court’s distinction of this case from Anthony is tantamount to a finding that defendant’s consent was valid. I believe that the trial court granted the motion to suppress because it found the consent to be tainted by an illegal detention (see Brownlee, 186 Ill. 2d at 519), and I conclude that the finding is not against the manifest weight of the evidence.
The majority holds that the police-citizen encounter changed from a Terry stop to a community caretaking situation when the original traffic stop ended. “ ‘[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Murray, 137 Ill. 2d at 389, quoting United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). A police-citizen encounter presents a community caretaking situation if the citizen is free to leave the scene. In this case, defendant was “free to leave” the scene of the traffic stop only under certain conditions. Officer Driscoll prevented defendant from driving away in the seized vehicle because he was too intoxicated to drive, and Driscoll would have prevented defendant from walking from the scene on foot if defendant had attempted to do so because the officer believed that (a) defendant was too intoxicated to walk safely and (b) no pedestrians are permitted on toll highways. Although Schnizlein testified that defendant was “free to leave” the scene, the trial court, in judging the credibility of the witnesses, determined that defendant would have been arrested if he had attempted to drive or walk away. Defendant did not attempt to drive the seized vehicle from the scene, and it is undisputed that his PBT results would have provided probable cause to arrest him for DUI if he had attempted to do so. However, I conclude that, if Officer Driscoll wrongly prevented defendant from walking from the scene, this detention would have tainted defendant’s consent to the pat-down search before he entered the squad car.
1. Intoxicated Pedestrian on Highway
Section 11 — 1010 of the Vehicle Code provides that “[a] pedestrian who is under the influence of alcohol or any drug to a degree which renders himself a hazard shall not walk or be upon a highway except on a sidewalk.” 625 ILCS 5/11 — 1010 (West 2002). Driscoll testified only that defendant “exhibited no signs of being sober” and failed a PBT, which is designed to investigate whether a person is too intoxicated to drive. However, the officers admitted that defendant was cooperative, and there was no affirmative evidence of defendant’s appearance or demeanor that would suggest that he could not walk safely. The trial court held that there was inadequate evidence of defendant’s intoxication to justify the detention, and I conclude that the court’s factual finding is not against the manifest weight of the evidence.
After holding that the encounter was a community caretaking situation in which defendant was not seized, the majority incongruously concludes that the officers had a reasonable suspicion that defendant was about to violate section 11 — 1010 of the Vehicle Code and that this suspicion justified defendant’s seizure. The analysis on this point is dispositive, but the majority nevertheless states in dicta that “under the facts of this case there was an emergency situation that justified a seizure of defendant’s person even without a reasonable suspicion that criminal activity was about to be committed.” 346 Ill. App. 3d at 160. I agree with the majority that there is no Illinois authority discussing whether such an exception exists, and I believe that we should not create one here sua sponte, where we lack the benefit of the parties’ argument on the extraneous issue.
2. Stranded Pedestrian on Toll Highway
The State alternatively argues that defendant’s consent was valid because he was properly detained as an illegal pedestrian on the toll highway. The trial court held that section 11 — 1007 of the Vehicle Code permitted defendant to walk from the scene and that defendant did not knowingly consent to the search because Officer Driscoll incorrectly implied that he could not walk from the scene. Section 11— 1007 of the Vehicle Code provides as follows:
“Pedestrians walking on highways, (a) Where a sidewalk is provided and its use is practicable, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.
(b) Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.
(c) Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of a roadway, and, if on a two-way roadway, shall walk only on the left side of the roadway.
(d) Except as otherwise provided in this Chapter, any pedestrian upon a roadway shall yield the right-of-way to all vehicles upon the roadway.” (Emphasis added.) 625 ILCS 5/11 — 1007 (West 2000).
Section 11 — 1007(c) does not bar a person from walking from a disabled vehicle, similar to the seized vehicle here, to the nearest highway exit ramp. When Driscoll informed defendant that he could leave the scene only as a passenger in a vehicle, the officer implied that defendant was not free to walk to the exit. It was in this context that defendant submitted to the search that disclosed the gun.
The trial court afforded the State several opportunities to cite authority that criminalizes the act of walking along a toll highway when no other means of transportation are available, but the State failed to do so. The majority now cites the general prohibition of a pedestrian’s use of a toll highway (see 92 Ill. Adm. Code § 2520.201(a) (1999)) but declines to respond to defendant’s contention that an exception to the rule exists for pedestrians who are stranded. The majority’s analysis borders on judicial advocacy and is troubling in light of its unnecessary creation of the emergency exception to the rule barring the seizure of a person absent probable cause, reasonable suspicion, or a warrant.
Administrative rules and regulations have the force and effect of law and must be construed under the same standards that govern the construction of statutes. People v. Bonutti, 338 Ill. App. 3d 333, 341 (2003). Therefore, the primary objective of interpreting a regulation is to ascertain and give effect to the intent of the drafters. The best indication of what the drafters intended is the regulatory language itself. Clear and unambiguous terms are to be given their plain and ordinary meaning, and where regulatory provisions are clear and unambiguous, the plain language as written must be given effect, without reading into it exceptions, limitations, or conditions that the drafters did not express. Bonutti, 338 Ill. App. 3d at 341.
The Administrative Code proscribes “[pjedestrians, except at authorized areas at Oases, Toll Plazas and maintenance areas,” from entering or using the toll highway. 92 Ill. Adm. Code § 2520.201 (1999). Section 2520.110 of the Administrative Code does not define “[p]edestrian” but provides that “[a]ny and all terms that are not specifically defined in this Section shall have the meanings ascribed to them in the Illinois Vehicle Code and the Toll Highway Act.” 92 Ill. Adm. Code § 2520.110 (1999). The Vehicle Code defines “pedestrian” as “[a]ny person afoot, including a person with a physical, hearing, or visual disability.” 625 ILCS 5/1 — 158 (West 2000).
“Any person using any part of the Tollway or Right-of-Way except as herein provided [in the Administrative Code] is guilty of a trespass” (92 Ill. Adm. Code § 2520.302 (1999)) and subject to prosecution under section 21 — 3 of the Criminal Code of 1961 (720 ILCS 5/21 — 3 (West 2000)). 92 Ill. Adm. Code § 2520.305 (1999). Section 21 — 3 “does not prohibit a person from entering *** upon the land of another for emergency purposes.” 720 ILCS 5/21 — 3(f) (West 2000). “Emergency” means a condition or circumstance in which an individual is or is reasonably believed by the person to be in imminent danger or serious bodily harm or in which property is or is reasonably believed to be in imminent danger of damage or destruction. 720 ILCS 5/21 — 3(f) (West 2000).
Although defendant did not testify to his mental state in this case, Officer Driscoll testified that he was concerned for defendant’s safety because of the late time of night, poor lighting, low temperature, and high speed of the vehicles on the tollway. I conclude that the officer’s testimony supports a factual finding that defendant’s presence on the tollway was excused by the emergency situation that the majority concedes existed.
I further note that, even if a pedestrian stranded on the tollway commits a trespass if he walks to the nearest exit, the chapter of the Administrative Code that might proscribe such conduct did not authorize Officer Driscoll to arrest defendant merely for his presence on the tollway after the traffic stop. The enforcement of the relevant portions of the Administrative Code is limited as follows:
“(a) For the purpose of giving notice of acts declared unlawful by this Subpart C, the Authority hereby authorizes each and every Director, officer and employee of the Authority and each and every member of the Illinois State Police, District 15, having knowledge of such an unlawful entry upon the Right-of-Way of the Tollway to promptly notify such persons to depart from such Authority property.
(b) After being notified by any Director, officer or employee of the Authority or by a member of the Illinois State Police, District 15, as provided in subsection (a) above, any person who fails or refuses to immediately depart from such land is subject to arrest and/or immediate removal from Authority Right-of-Way, and shall be subject to prosecution for trespass.
(c) The Illinois State Police, District 15, are authorized to enforce the provisions of Subpart C, after verbal notice as provided above, or without verbal notice in cases where written notice forbidding entry in the area is posted.” (Emphasis added.) 92 Ill. Adm. Code § 2520.303 (1999).
Here, Officer Driscoll was a member of the Naperville police department, but the enforcement of the section governing trespassing pedestrians is limited to members of the Illinois State Police, District 15. See 92 Ill. Adm. Code § 2520.303 (1999).
B. Exigent Circumstances
After concluding that defendant’s consent to the search was not tainted by the detention, the majority states in dicta that “the officers had a duty to remove defendant and the older Reese brother from the roadside after all other apparent lawful means of leaving the roadside had been exhausted.” 346 Ill. App. 3d at 164. I disagree with the majority’s decision to needlessly impose a new duty and grant the concomitant authority to search based upon the exigent circumstances of a citizen’s entry into a police car.
In Tobin, the California Court of Appeals held that the police officer had a duty to transport a person who was stranded after the vehicle in which he was riding was stopped and towed. Tobin, 219 Cal. App. 3d at 638-39, 269 Cal. Rptr. at 83-84. In reaching its holding, the court cited only a treatise for the proposition that the government would be exposed to liability if the officer did not transport the defendant. Instead, the court emphasized the undisputed fact that the defendant could not walk on the road legally. Here, however, the emergency exception to the criminal trespass statute would have permitted defendant to walk along the tollway. See 720 ILCS 5/21— 3(f) (West 2000). I find Tobin to be factually distinguishable and generally unpersuasive, and I question the majority’s reliance upon the case in fight of the dearth of briefing on this issue.
The majority cites Hannaford for the proposition that defendant’s entry into the police car created the exigency justifying the search. However, in Hannaford, the transporting officer expressly gave the defendant the option of walking from the scene. Hannaford presented a true community caretaking encounter, unlike this case, where the majority holds that defendant could be seized because his intoxication gave the officers reasonable suspicion that he was about to commit a crime by walking on the tollway. The Hannaford court emphasized that, before entering the police car, “[n]one objected or left the scene.” Hannaford, 167 Mich. App. at 149, 421 N.W.2d at 609. Defendant was not afforded similar choices in this case.
In Hart, the Wisconsin Court of Appeals declined to adopt a blanket rule permitting the search of every citizen entering a squad car. The Hart court noted that “a routine pat-down of a person before a police officer places the person in a squad car is wholly reasonable. We recognize that police policy mandates pat-downs for the general safety of the officer. Nevertheless, evidence gleaned from such a search will only be admissible in court if there are particularized issues of safety concerns about the defendant.” Hart, 249 Wis. 2d at 345-46, 639 N.W.2d at 220. Therefore, if the true motivation of the search-incident-to-police-car-ride is officer safety rather than criminal investigation, the State should have no objection to suppressing the fruits of a search conducted without reasonable suspicion of criminal activity. Hart presents an alternative to the majority’s holding in this case, but I neither endorse nor reject Hart because I conclude that these issues need not be decided here.
C. Conclusion
In conclusion, I reject the State’s proposition that the officers could have arrested defendant if he had attempted to walk from the scene. The trial court was not manifestly erroneous in concluding that defendant’s due process rights were violated and his consent was invalid because Officer Driscoll incorrectly implied that he was not free to leave the scene on foot. See generally People v. Daugherty, 161 Ill. App. 3d 394, 398-400 (1987) (when a law enforcement officer uses deception and his official position to induce a defendant to consent to a search, the search may be coercive and the consent invalid). The majority has unnecessarily and substantially curtailed the fourth amendment protections of motorists who become stranded on this state’s roadways. The sweeping new rules announced herein authorize the government to search pedestrians under the guise of providing a “courtesy ride” during a community caretaking encounter. This opinion could be construed as condoning the seizure and search of any person whose status as a stranded pedestrian, in the officer’s sole opinion, creates a risk of harm to the pedestrian or other motorists. I conclude that the motion to suppress was correctly granted in this case, and for the preceding reasons, I respectfully dissent.