dissenting:
I respectfully dissent, because I believe that the facts support a finding of a valid Terry stop and that the suspicionless stop in Edmond is distinguishable from the instant case. City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
The fourth amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV The fourth amendment is applicable to the states under the fourteenth amendment. U.S. Const., amend. XIV Stopping an automobile at a highway checkpoint constitutes a seizure under the fourth amendment. Michigan Department of State Police v. Sitz, 496 U.S. 444, 450, 110 L. Ed. 2d 412, 420, 110 S. Ct. 2481, 2485 (1990).
However, in Terry the United States Supreme Court held that a police officer could briefly detain a person for investigatory purposes in some circumstances. Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Under the Terry exception, a police officer may briefly stop a person for temporary questioning if the officer reasonably believes that the person has committed, or is about to commit, a crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880; People v. Flowers, 179 Ill. 2d 257, 262 (1997) (recognizing Terry). The Terry standards have been codified in our Code of Criminal Procedure of 1963 (725 ILCS 5/107 — 14 (West 1998)).
The stop under Terry must have been justified at its inception; a court objectively considers whether the police action was appropriate based on the facts available to the police officer. Terry, 392 U.S. at 20-21, 20 L. Ed. 2d at 905-06, 88 S. Ct. at 1879-80; People v. Long, 99 Ill. 2d 219, 227-28 (1983). To justify the intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant that intrusion. Terry, 392 U.S. at 20-21, 20 L. Ed. 2d at 905-06, 88 S. Ct. at 1879-80; People v. Long, 99 Ill. 2d 219, 227-28 (1983).
Under Terry, some quantum of individualized suspicion is required. See United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 49 L. Ed. 2d 1116, 1130, 96 S. Ct. 3074, 3084 (1976). In evaluating the validity of a Terry stop, we consider the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585 (1989).
In this case, the Terry exception has been satisfied. At the checkpoint, defendant and all other drivers were stopped after bypassing a phantom drug checkpoint and attempting to reach a remote road with no services. These specific facts, taken together with rational inferences, reasonably warrant a brief intrusion. These drivers were stopped for questioning because the police reasonably believed that, by attempting to evade the checkpoint, they possessed drugs. When viewing the totality of the circumstances, I believe that each driver stopped was a suspect. Those drivers who had good reason to exit the interstate due to local business or residency were allowed to quickly extricate themselves from suspicion and go about their way.
City of Indianapolis v. Edmond is readily distinguishable from this case. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447. The stop in Edmond was a suspicionless stop, but the stop in the instant case was based on an individualized reasonable suspicion. In Edmond, the checkpoints were established on Indianapolis roads, thoroughfares, to ensnare drivers in dragnet fashion. Here, only suspect drivers were stopped at the end of a seldom-used exit ramp while trying to reach a remote road with no services after evading a putative drug checkpoint.
Defendant, having been constitutionally stopped, then admitted to possessing drugs. At that time, probable cause was present to search his vehicle. See People v. Tisler, 103 Ill. 2d 226, 236 (1984).
I see no need to perform a reasonableness analysis of the checkpoint itself by balancing the need to search against the invasion that the search entails (see, e.g., Brown v. Texas, 443 U.S. 47, 50-51, 61 L. Ed. 2d 357, 361-62, 99 S. Ct. 2637, 2640 (1979); People v. Bartley, 109 Ill. 2d 273, 280 (1985)), because the constitutional exception under Terry has been satisfied based on a reasonable suspicion (Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868).
The members of the majority have followed the approach taken by the United States Court of Appeals in United States v. Arvizu, 232 F.3d 1241, 1248-51 (9th Cir. 2000), and discredited by the United States Supreme Court. They are really viewing the factors individually in a vacuum, not considering them in terms of the totality of the circumstances and then giving each factor a “no weight” innocent conclusion. See United States v. Arvizu, 534 U.S. 266, 151 L. Ed. 2d 740, 122 S. Ct. 744 (2002).
Although a seizure may not be justified by its success (see Byars v. United States, 273 U.S. 28, 29, 71 L. Ed. 520, 522, 47 S. Ct. 248, 248-49 (1927)), it is interesting that this checkpoint yielded a 70% violation rate of nonlocal drivers, with more than 60% having narcotics, as testified to by Corporal Kuhns at the suppression hearing.
Therefore, I would affirm the circuit court’s denial of defendant’s motion to suppress and affirm his conviction and sentence.