People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (Duration 6:18)

Defendant wins his motion to suppress in this DUI arrest in part because the officer doesn’t understand HGN.

Charges

Defendant was involved in single-vehicle motorcycle accident and was subsequently charged with citations for improper lane usage (625 ILCS 5/11-709(a)), failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a)), and DUI (625 ILCS 5/11-501(a)(2)).

Facts

A hearing was held on defendant’s motion to suppress evidence and quash arrest.

When the officer arrived, he saw a motorcycle lying on its side and defendant sitting on the ground being treated by medical personnel.

The officer spoke to a witness, who told him that he observed defendant drive his motorcycle up Main Street at a “high rate of speed,” fail to negotiate the curve, and crash. The witness also told the officer that he could smell alcohol on defendant’s breath. The officer did not question the security guard further.

The officer spoke to defendant while he was being treated at the scene.

The officer asked defendant if he had consumed any alcohol. Defendant initially stated that he had a 12-ounce beer and then corrected himself and said he had a 20-ounce beer. The officer admitted that he had no record or recollection of defendant having slurred speech.

HGN

At the hospital, the officer performed a Horizontal Gaze Nystagmus (HGN) test on defendant.

The officer did not perform any other field sobriety tests on defendant because of his injuries from the accident.

Before the administration of the HGN test, defendant told the officer that he was blind in his right eye. The officer did not remember asking defendant if he struck his head during the accident but admitted that defendant may have sustained a head injury.

The officer did not take that into account when administering the HGN test to defendant.

He said he observed five clues during defendant’s HGN test and explained that the presence of four or more clues is a strong indication that the individual being tested is “over .08 or intoxicated.”

The officer testified that he received training in the HGN test and was taught that it can be used to determine if someone is intoxicated. He testified that HGN is “one of the most *** accurate tests in determining somebody to be over a .08 [blood alcohol level].”

In his report, the officer listed “glassy bloodshot eyes, slight odor of an alcoholic beverage, single vehicle crash involving motorcycle, [and] admission to drinking” as his reasons for believing defendant was driving under the influence of alcohol.

Arrest Factors

At the hearing, the officer testified that he arrested defendant for DUI based on the clues he observed on the HGN test, the odor of an alcoholic beverage on defendant, defendant’s glassy, bloodshot eyes, and his admission to drinking. The officer also considered that defendant was likely coming from a bar when the accident happened based on defendant’s statement that he had been “downtown.”

The officer testified that he also considered the accident and the statements by the security guard when he arrested defendant for DUI.

Trial Court Ruling

The trial court explained that the officer’s testimony that HGN testing can determine the level of intoxication was wrong under People v. McKown, 236 Ill. 2d 278 (2010), and caused the court to call into question his “credibility on the issue of impairment in this case” as well as the HGN test itself “in terms of the officer’s experience, knowledge of the standards, and how it was conducted.”

In Episode 340 (Duration 14:18) of the Criminal Nuggets Podcast, Kim Bilbrey of the Kane County Public Defender’s office indulges me as I ask about one of the easiest ways for police to search a car without a warrant.

Hit play to hear what she said.

In this Episode

Kim Bilbrey has been with the Kane County Public Defender’s Office for 9 years.

She and her colleagues have had some success defending cases involving drug dog sniffs. Additionally, she and her team have brainstormed numerous ways in which the legal landscape around warrantless car searches is changing.

“Can’t Miss” Moments

✓ These magic words instantly allow an officer to search a car without a warrant. (Go to 0:37) & (Go to 1:58 & 2:44)

✓ What happens when a soccer mom who hasn’t smoked weed in her life has passengers in her car who reek of the stuff. (Go to 2:04)

✓ The presence of a prescription bottle in a car does not indicate or necessarily signal criminal activity. The new cannabis environment means we may have to rethink how we think about the odor of cannabis. (Go to 3:21)

✓Possession of a gun in Illinois is not necessarily illegal anymore. So, when an officer sees a gun it’s not obvious at all that a crime is being committed. So too, the fundamental question here is this: If cannabis is not necessarily illegal anymore then how can the odor of cannabis justify a warrantless search of a car?  (Go to 4:39) & (Go to 5:08) 

✓ Kim is going be presenting at the IACDL Drug Seminar on Friday May 19, 2017. She’ll be explaining how she breaks down a drug dog sniff case and reveal her secrets on how she’s found success in these cases. Hit the link below to learn more and get registered for this CLE. (Go to 8:41)

Search & Seizure Resource Page

Check out the

Illinois Search And Seizure Resource Page

to learn more about the 4th amendment.

Links & Resources

* Illinois Association of Criminal Defense Lawyers Drug Seminar

* Learn More About The IACDL

* Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?

* Ball-Hitch “Obstructing” Case – Traffic Stop Based on Reasonable Mistake of Law is Not Illegal

People v. Garcia, 2017 IL App (1st) 142141 (March). Episode 330 (Duration 4:34)

Police entered a home without a warrant to make a misdemeanor arrest; the exclusionary rule does not mandate suppression of evidence.

Charges

Defendant was charged with one count of unlawful possession of a firearm based on his possession of a firearm while under 18 years of age. 720 ILCS 5/24-3.1(a)(1).

Facts

 Officers knock on defendant’s door and either his little brother or mother answered.

They come in an immediately arrest the defendant in the living room. The family testified that they barged in and did not identify themselves as police officers. They took defendant outside the home and before placing defendant in their vehicle, he performed a search of defendant and recovered a six-shot .32 caliber revolver handgun.

The police said defendant was wanted on an armed robbery. They had a signed misdemeanor complaint for theft and battery. In fact, they had no search or arrest warrant.

Issue

Defendant filed a pretrial motion to quash arrest and suppress the gun seized from him on the grounds that it was obtained through a warrantless entry into his home.

 On appeal, defendant contends the trial court erred in denying his motion to quash arrest and suppress evidence because the evidence was obtained through exploitation of the illegal warrantless arrest within his home and is therefore subject to the exclusionary rule.

In other words, the handgun recovered from his pocket was only recovered through “exploitation of the illegality” of the police officers’ unconstitutional entry into his home.

Case Law

In Payton v. New York, 445 U.S. 573, 602-03 (1980), the United States Supreme Court held that warrantless entry by police officers into a defendant’s residence to make a routine felony arrest in the absence of consent or exigent circumstances violated the defendant’s fourth amendment right to be free from unreasonable search and seizure.

Ten years later, in New York v. Harris, 495 U.S. 14, 16 (1990), the Court again addressed the warrantless entry of police officers into a defendant’s home, examining the issue of whether a statement made by a defendant outside of the home should have been suppressed because the police, by entering defendant’s home without a warrant and without consent, violated Payton’s rights.

The Court concluded that the defendant’s statement should not be suppressed.

In People v. Alexander, 212 Ill. App. 3d 1091 (1991), this court first addressed the Supreme Court’s decision in Harris and reiterated the Harris holding that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though [that] statement is taken after an arrest made in the home in violation of Payton, ” because “as long as the police have probable cause for holding the suspect in custody, such statements are neither “the product of being in unlawful custody *** [nor] the fruit of having been arrested in the home rather than someplace else.” Alexander, 212 Ill. App. 3d at 1104 (quoting Harris, 495 U.S. at 19).

Analysis

This court went on to decide that although Harris only referred to statements obtained outside the home, “we see no reason why the rule it enunciates should not apply as well to other evidence obtained outside the home, as the argument for excluding statements was that they were the fruits of an illegal arrest rather than that there was some basis for dist...

People v. West, 2017 IL App (3d) 130802 (March). Episode 329 (Duration 10:59)

This obvious drug interdiction traffic stop was nonetheless 100% consensual.

Facts

12,204 grams of cannabis in 16 bundles wrapped in duct tape hidden in defendant’s vehicle doors are discovered by police during a traffic stop.

Issue

Defense counsel argued the stop was impermissibly prolonged by “drug interdiction” questions unrelated to the purpose of the stop, that the officer did not have reasonable, articulable suspicion to ask those questions, and that defendant’s consent to search his car was merely acquiescence to the show of authority.

Holding

Ultimately, the trial court denied defendant’s motion.

The court found that the traffic stop was not unreasonably prolonged; it ended when defendant was told he was free to leave, and the ensuing encounter was consensual, not coerced.

The Stop

Interestingly, the office noticed defendant after the car ahead of him flew by him, obviously speeding. Hmmm?

Upon stopping the car the officer noticed defendant had an Arizon DL.

Then the officer asked numerous questions unrelated to the traffic stop.

Defendant said he was driving from Arizona to Flint, Michigan, to visit friends. He said he planned to stay until the end of the week and indicated that he did not know his friends’ address in Michigan.

Illegal narcotics suppliers sometimes hold back the precise drop-off location to prevent drivers from cooperating with police in the event they are stopped before delivering the drugs.

The Driver

The defendant had a suitcase in the backseat, a mechanic’s shirt hanging inside the car, and a camera in the rear window.

The officer asked defendant to sit in his squad car with him while he checked his documents and wrote him a warning ticket.

The officer stated he found it odd that defendant said his business was not going well but he was taking a costly trip to visit friends.

Approximately 14 minutes after Johnson initiated the stop, he issued defendant a written warning, returned his documents, and told defendant he was “free to go.”

Defendant exited the squad car.

One Last Thing

Johnson exited the squad car in quick succession.

Thereafter, he voluntarily remained outside of his car and engaged the officer in conversation.

He told defendant to have a “nice trip,” they shook hands, and they remarked that it was nice meeting each other.

Defendant exited the squad car with his paperwork and began walking back to his car. Before defendant got back into his car, the officer asked defendant if he could talk with him further. Defendant agreed to do so. But before defendant gets into his car the the officer asks for permission to search.

Defendant says “yes.”

No Reasonable Suspicion

This is not a reasonable suspicion case.

Clearly, the officer did not have reasonable suspicion.

He ultimately decided he did not have reasonable, articulable suspicion sufficient to prolong the traffic stop and ended it. Armed with the knowledge that he was free to leave, defendant twice consented to the trooper’s request for permission to search the car, and the defendant said “Yes.”

Not Prolonged

Defendant presented no evidence at trial that the traffic stop was prolonged.

The officer’s testimony and the video footage of the traffic stop established the opposite. He did not cease working on the traffic stop while engaging defendant in conversation.

The defendant points to nothing in the record suggesting otherwise.

The Traffic Stop Ended

Even assuming, for sake of argument, the traffic stop was unreasonably prolonged by the officer’s questions, the defendant’s point is irrelevant.

In episode 328 (Duration 43:21) of the Criminal Nuggets Podcast she helps us explore some of the intricacies of “knock and talk” warrantless entries. 

Alana De Leon is an Illinois criminal law litigator worth keeping an eye on.

There is a certain amount of timidness often seen in young criminal law litigators. 

An uncertainty and apprehension that only melts away with raw experience.

Well, Alana De Leon, has none of that.

She’s built her experience and insight on warrantless entries into homes, so called “knock and talks”,  by rolling up her sleeves and challenging them in court.

About Alana De Leon

Alana is the daughter of John De Leon. Her father has a long career as a Cook County attorney.

After graduating from De Paul Law School she was sworn in as an Illinois attorney in November of 2015. 

She focuses her practice on federal and state criminal defense where she’s developed a passion for constitutional issues. If it involves crime, murder and mayhem then it has her attention.

Find Out More

To find out more About Alana De Leon go here:

* Facebook* Avvo* Website

Contact

To contact Alana send her a message here:

alana.m.deleon(AT)gmail(dot)com

What’s In This Episode

✓ The “Knock and Talk” is the weird little cousin of the three types of police-citizen contacts. It’s not quite a Terry stop but something else. (Go to 6:39)

✓ How is a “knock and talk” related to a “stop and frisk”? With a “stop and frisk” you are out in the open a lot more vulnerable, but a “knock and talk” involves this most sacred structure. (Go to 9:15)

✓ The most common scenarios leading up to a “knock and talk”.  Surveillance details and itchy officers may not be patient enough to wait for a warrant or…. (Go to 11:06)

✓ All “knock and talks” rely on this one type of exception to the warrant requirement. This is the number one reason police say they don’t need a warrant. (Go to 12:07)

✓ Are you aware of the biggest factors that can sway a judge when you’re running a “knock and talk” motion? (Go to 14:05)

✓ You’ll be surprised how often the “foot in the door” scenario turns up in these cases. Here’s how to handle them. (Go to 15:52)

✓ When the entire S.W.A.T. team is waiting outside the home, that says a lot about the intent of the “knock and talker”. (Go to 16:56)

✓ Here’s what you need to know about written consent forms. I’ll say this though, generally, the consent form should come before the actual search.  (Go to 18:05)

✓ When expressed written consent does not mean consent. (Go to 19:43)

✓ If the police enter your home and start searching you have an affirmative duty to tell them to stop…WRONG!

People v. Evans, 2017 IL App (4th) 140672 (March). Episode 327 (Duration 7:49)

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

Facts

Officer is responding to a call of a possible burglary.

He sees defendant walking.

He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.

Safety Concern

He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.

Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.

Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.

Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.

Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.

Issue

On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”

Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.

The central point of inquiry is at what point was defendant seized.

Mendenhall Factors

The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.

Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.

Officer’s Questions

This defendant’s path of travel was not blocked or interfered with in any way.

The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.

No Seizure

The initial encounter here was a consensual encounter.

None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.

Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.

First Request To Hands From Pockets

Defendant next argues he was seized at the moment the officer first requested­ he remove his hands from his pockets.

The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.

Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.

The fact defendant continued to place his hands back into his pockets shows defendant did not fully...

In re Elijah W., 2017 IL App (1st) 162648 (March). Episode 326 (Duration 4:59)

Plain clothes officer sternly telling a kid to “come here” is a seizure.

Juveniles can’t really consent to a police officer.

Facts

Kid was with his buddies when unmarked sport utility vehicle with 3 officers in plain clothes goes by.

Kid starts to walk away and car reverses and slowly follows him.

Each officer was armed, wore a bulletproof vest, and displayed a police badge.

All the officers recognized the kid and new he was a minor.

“Come Here”

One of them called for him to “come here” in a casual, but stern tone of voice.

Kid complied and walked towards the SUV.

They ask him “what you doing out here?” Kid shrugged in response. They repeat the question in a stern tone.

Kid then responded, “I got a couple rocks on me.”

Kid is placed in handcuffs.

Six ziplock bags containing suspect crack cocaine found on him. Then another plastic bag containing 12 ziplock bags with capsules of suspect heroin are pulled from some sweat pants he had underneath his jeans in the right pocket.

Juvenile

In trying to determine if this was a consensual encounter the trial court said that the United States Supreme Court has recognized that compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed. See Graham v. Florida, 560 U.S. 48, 68 (2010), Miller v. Alabama, 567 U.S., and J.D.B., 564 U.S. at 265 (age of the subject is relevant to the custody analysis of Miranda).

Our supreme court’s decision in In re D.L.H., 2015 IL 117341 adopted the analysis set forth in J.D.B. There, the court considered whether the test for determining whether the minor was in custody for purposes of section 5-170(a) of the Juvenile Court Act of 1987 (705 ILCS 405/5-170(a) (West 2012)) was any different than the test for determining whether he was in custody for the purposes of Miranda.

The court noted two discrete inquiries required under Miranda:

(1) “what were the circumstances surrounding the interrogation” and

(2) “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.”

Our supreme court has identified several factors relevant to the first inquiry, including, among other things,

* the age,

* intelligence, and

* mental makeup of the accused.

The D.L.H. court found that when the person questioned is a juvenile,” the reasonable person standard is modified to take that fact into account.

Analysis

The decision in D.L.H. was limited to fifth amendment Miranda concerns and did not extend to fourth amendment consensual encounters involving a minor.

This reviewing court said that the holding in J.D.B. should apply to a fourth amendment analysis when determining whether an encounter between a minor and law enforcement was consensual.

A 13-year-old youth would not have believed he or she could have denied the officer’s two requests to “come here” and avoid the police without raising further suspicion.

Holding

But since the kid was breaking curfew the court said the stop was a justified Terry stop.

Police officers observed 13-year-old Elijah outside after 11:00 p.m.

The officers reasonably suspected an ordinance violation based on the late hour of the night which justified the stop. 

In this case, the totality of the circumstances justified a Terr...

People v. Qurash, 2017 IL App (1st) 143412 (March). Episode 325 (Duration 8:37)

Do the words, “Come Here”, alone constitute a seizure?

Facts

Police are driving and they see defendant walking.

When the officers were about 15 feet away from defendant, they stopped the police car, lowered the window, and said to defendant, “come here.”

Defendant immediately drops a bottle.

Drugs Discovered

Defendant testified that he walked right up to the police car like he was told. Police get out of the car and go get the bottle.

There are 26 separate bags of weed in there. They arrest defendant and in his pocket they find two more bottles with pills, a controlled substance (Diazepam).

Issue

On appeal defendant asks: Does the Statement “Come Here,” Uttered by a Police Officer to a Citizen, Result in a Seizure?

More specifically, the question was whether the trial court was manifestly erroneous in determining that the words “come here” were issued as a request.

Defendant contends that the court erred in denying his motion to quash because he was seized at the moment the officer said, “come here.”

According to defendant, the officers lacked a reasonable suspicion or probable cause for this seizure.

A Seizure

A person is seized when his freedom of movement is restrained by physical force or a show of authority. See more seizure and pat down cases.

The test is whether a reasonable person would conclude, in light of the totality of the circumstances, that he was not free to leave.

Following the United States Supreme Court’s decision in United States v. Mendenhall, 446 U.S. 544, 553 (1980), the Illinois Supreme Court adopted the Mendenhall plurality factors indicating a seizure when the person does not attempt to leave:

(1) the threatening presence of several officers,

(2) the display of a weapon by an officer,

(3) the physical touching of the person, and

(4) the use of language or tone of voice compelling the person to comply with the officer’s requests.

The absence of any of these factors is not dispositive but highly instructive on the issue of whether a seizure occurred.

Analysis

Here, it is undisputed that officers Gregory and Oppedisano did not exit their car, display any weapons, or physically touch defendant prior to stating, “come here.”

Thus, the only Mendenhall factor that is in play is the use of language or tone of voice compelling the person to comply.

The trial court, after listening to both the officers and defendant testify, made a finding of fact that officer Gregory’s statement, “come here,” was a request.

Defendant’s Words

The defendant corroborates that in his own testimony by saying he did see the officers, they asked him to come over to the car.

So the defendant doesn’t deny. In fact, they did just ask him.

They didn’t—they didn’t demand that he come here.

They didn’t pull out any weapons. They were in the car, asked him to come over to the car. The trial court then denied the motion to quash.

Officer’s Tone

The reviewing court said that nothing in the record suggests the trial court’s finding that the words “come here” were issued as a request was against the manifest weight of the evidence.

The officer’s tone of voice when he told defendant to “come here” is not possible to discern from this record.

No one testified to the officer’s tone when he said, “come here”; accordingly, this court, or for that matter any reviewing court, cannot determine his tone when he spoke to defendant.

Not The Trier of Fact

That determination is solely within the province o...

In Episode 319 (Duration 35:33), Anthony Cameron sits down with us to talk about how police can enforce a warrant for a suspect’s blood.

More and more DUI’s will be proven based on the chemicals in a person’s blood. 

Which begs the question: What exactly happens when a person refuses to give up their blood even though there’s a warrant?

Well, Anthony Cameron helps us figure this out.

About Anthony Cameron

Anthony Cameron is a lawyer in Quincy, Illinois. Anthony was Adams County state’s attorney from 1980 to 1984. Now, his practice does its fare share of criminal defense.

However, Anthony does not limit his practice to only criminal justice cases.

Any dilemma involving conflict with a government agency is in his wheelhouse.

Important Links & Resources

* Birchfield v. North Dakota * Birchfield v. North Dakota (audio summary)* Driving Under The Influence of Drugs* People v. Brooks 2016 IL App (5th) 150095-U* More About Illinois DUI Cases

What’s In This Episode

✓ What is a blood draw? (7:13)

✓ Why contempt of court is a horrible way to force someone to give up their blood. (Go to  8:06)

✓ The truth about hospital medical staff when they encounter an individual absolutely refusing to submit to a blood sample withdrawal. (Go to 9:20)

✓ An anecdotal account of a case where an officer was looking for the one state that was willing to strap a guy down to take his blood. (Go to 10:21)

✓ Illinois has chosen its remedy to force DUI suspects to give up their blood. It’s not contempt of court or a criminal charge but this. (Go to 10:41)

✓ “What is the State’s remedy when the defendant says, ‘I’m sorry sir. I know you have this warrant, but I’m not giving you permission to take my blood.’?” (Go to 11:27)

✓ The only crime where the defendant gets to control the crime scene. (Go to 11:58)

✓ How Illinois implied consent law works. (Go to 13:18)

✓ The story in Birchfield begins with police getting a warrant for a DUI suspect’s blood. (Go to 15:27)

✓ Illinois can absolutely choose to criminalize refusing to give up a biological sample. For now, they have chosen this other route. (Go to 17:11)

✓ The thing I didn’t understand about charging someone with obstruction of justice when they refuse to comply with a warrant for their blood. (Go to 17:52)

✓ Respiration and absorption are biological processes, do you “knowingly” perform them? (Go to 19:03)

✓ The one time Anthony bit his lip and held back during a “bogus” plea deal. (Go to 20:13)

People v. Williams, 2017 IL App (3d) 150879 (February). Episode 312 (Duration 10:26)

Off duty officer outside his jurisdiction stops defendant for swerving; this leads to a DUI arrest.

Facts

Off-duty officer is on on his way home after a shift.

He is in an unmarked squad car equipped with a radar gun. He is still in his police uniform. He is driving in another county when he sees defendant driving in the opposite lane towards him.

Defendant is going 60 in a 25 and swerves into the officer’s lane almost striking the off duty officer’s car.

The off duty officer uses his personal cell to call 911 and to get an officer from the jurisdiction out to the scene.

The off duty officer follows defendant to a driveway where he engages him in conversation. He takes his DL and tells him to wait for the Lockport police officer to get there.

When Lockport PD gets there defendant fails the FSTs and he is arrested for DUI.

More Details

The record reveals defendant voluntarily stopped his vehicle once he arrived at the driveway of a friend’s house.

The off-duty Palos Hills police officer did not activate his lights to effectuate a traffic stop at any point in this process.

Instead, defendant voluntarily parked and exited his vehicle without any directive from the off-duty officer.

Defendant was on foot when the off-duty Palos Hills police officer approached defendant and struck up a conversation.

Defendant voluntarily stopped walking in order to speak to the off-duty Palos Hills police officer.

During this conversation, the off-duty Palos Hills police officer asked if defendant had been drinking, asked for defendant’s driver’s license, and instructed defendant to wait with the officer in the driveway until the Lockport police department could reach that location.

Shortly thereafter, the Lockport police officer arrived and spoke to both men.

The off-duty Palos Hills police officer spoke to the Lockport police officer about the erratic driving and improper lane use he witnessed on the night of the incident.

Trial Court

The trial court noted it was undisputed that the Palos Hills police officer was off duty and outside of his jurisdiction when the officer first observed defendant’s vehicle traveling towards him on the roadway.

The court expressed doubts about “the truthfulness and accuracy of the officer’s testimony as it relates to the series and sequence of the officer’s observations.

The court’s findings implied that the court believed the off-duty Palos Hills police officer first used the radar gun to measure defendant’s speed before observing defendant commit the other offenses.

The trial judge stated that when making an extraterritorial arrest, an off-duty police officer may not use powers of his office that are unavailable to a private citizen to obtain evidence. The trial court emphasized that it believed the evidence obtained from the radar gun was the true reason for the stop, not the improper lane usage described by the off-duty police officer. The trial judge was concerned that the Lockport police officer did not charge defendant with an improper lane usage violation.

For these reasons, the trial court judge questioned the off-duty police officer’s “conclusion that the stop was predicated on the lane violation” independent from information gathered by the use of the radar gun.

Accordingly, the trial court granted defendant’s motion to quash the DUI arrest and suppressed all evidence obtained as a result of the first unlawful stop.

Citizen’s Arrest

At common law, a police officer cannot lawfully arrest a suspect outside of the jurisdiction that appointed the officer unless acting in “fresh pursuit” of a suspected felon fleeing from ...