People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47)

Jeep touches the traffic lines 3 times and gets stopped, reasonable?

Charges

Defendant was charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2)) and improper lane usage (ILU) (625 ILCS 5/11-709(a)).

Innocent Left Turn

Defendant’s Jeep was stopped in the left-turn lane at a light at the intersection at 1:40 am on a rural road. When the light turned green, she turned left onto Route 31. There was nothing unusual in the turn.

The sheriff’s deputy followed defendant. She was not speeding.

First Touch

Then Jeep’s driver’s-side tires rolled onto the yellow center line and touched it for a few seconds. The vehicle did not cross the line but returned to its lane.

Did It A Second Time

Then a second time after traveling some distance, the Jeep’s passenger’s-side tires touched the white fog line but never crossed over it. The Jeep never left the lane. The Jeep moved back toward the center of the lane without doing anything unusual.

Happened A Third Time

Then a third violation was when the Jeep’s passenger’s-side tires again rode on the white fog line. This was “momentary.” The tires never crossed over the line. Other than the three incidents of what he regarded as ILU, the sheriff’s deputy did not see defendant violate any traffic laws.

Jeep Stopped

He acknowledged that the stretch of road on which he followed defendant was not straight and had “some twists and turns.” Also, he acknowledged that the video system in his squad car had been inoperable since October 2016 and that he had not requested any repair.

Based on the three incidents alone, he stopped the Jeep nearly a mile from where he first saw it.

Trial Court Findings

The trial court said the sheriff’s deputy’s testimony had been “problematic. He either didn’t remember important details or was flippant with defendant’s attorney.  The sheriff’s deputy never saw the Jeep’s tires cross over either the yellow center line or the white fog line, nor did he observe any jerky or erratic driving corrections.

The three lane-line touches occurred over a mile-long twisting and turning stretch of road.

The trial court noted that, current law required evidence that defendant’s tires crossed over the lane lines to create a reasonable suspicion of ILU.

That had not occurred.

Issue

She moved to quash her arrest and suppress evidence, contesting the initial stop of her vehicle for ILU. 

Question: Was there sufficient reasonable suspicion justifying the traffic stop? Does a vehicle have to cross the line or does merely touching it register as an improper lane usage?

Illinois Traffic Code on Lane Usage

Section 11-709(a) states that,

“Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic,..vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

625 ILCS 5/11-709(a).

Crossing The Lane Will Get You Stopped

Although the statute requires a driver to remain entirely within a single lane only as nearly as practicable, it is settled that an officer may stop a vehicle for driving outside its lane for no obvious reason, without further inquiry into practicability. Hackett, 2012 IL 111781, ¶¶ 27-28.

To be clear what we are asking here is if the sheriff’s deputy had a reasonable suspicion that defendant failed to drive “ent...

People v. Quigley, 2018 IL App (1st) 172560 (November). Episode 565 (Duration 9:50)

He was plastered and sends his car air born on the expressway, nonetheless, he says his hospital blood can’t be considered in a civil suspension hearing.

Gist

Defendant was involved in a multi-car collision and was transported from the scene by ambulance to a hospital emergency room. At the hospital, a blood alcohol test was performed on defendant, and a doctor informed an Illinois state trooper of the results. The trooper placed defendant under arrest and issued him citations for driving under the influence of alcohol in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2)) and other traffic violations.

In addition, defendant was subsequently charged with driving while his blood alcohol level was 0.08 or greater under section 11-501(a)(1) of the Code. Id. § 11-501(a)(1).

The Accident

Defendant’s driver’s license was, thereafter, summarily suspended by the Secretary of State.

The trooper arrived to the scene of a three car accident on a ramp of the Dan Ryan Expressway. Apparently, defendant swung across traffic in an effort to get on the exit ramp. He made it, then suddenly attempted to cross from the ramp to the local lanes, lost control, struck the barrier that separates the exit ramp from the local lanes, went airborne, and then struck 1 other  vehicle which in turn hit a third car. 

Talk To Defendant

Defendant, the sole occupant of the car that went airborne, was bleeding from lacerations on his forehead and face. The trooper asked defendant what had happened and if he was all right. Defendant gave the trooper his name and driver’s license but stated that he “wasn’t involved in any crash.” The trooper noticed that a “strong odor of alcoholic beverage was emanating from his breath.” 

When fire department personnel asked defendant to exit his vehicle, defendant refused, stating that he was uninjured.

During a second conversation, the trooper asked defendant if he had been drinking alcohol, and defendant did not answer. He asked him again what had happened in the crash and defendant replied:

“What crash? I wasn’t involved in any crash. I didn’t hit anybody.”

At this point, fire department personnel joined in assisting defendant out of his vehicle and onto a gurney. Defendant repeatedly refused to leave his vehicle and said that he did not want to go to the hospital but wanted to call his parents and go home. 

Eventually, defendant was taken by ambulance to the emergency room of Stroger Hospital.

At The Hospital

After defendant received treatment, the trooper spoke with defendant in his hospital room. Again, he smelled “a strong odor of alcoholic beverage emanating from his breath.”

A physician told the trooper that lab work had been done, the results of which indicated defendant’s whole blood alcohol content was 0.297. That number converted to a serum blood alcohol content of 0.251, which was over the legal limit of 0.08.

The trooper confirmed that the police had not directed anyone at the hospital to take defendant’s blood. After receiving this information, defendant was placed under arrest and read defendant the warnings to motorist.

Issue

Defendant filed a petition to rescind the statutory summary suspension.

On appeal, defendant first contends that the trial court erred when it allowed “into evidence,” over his objection, the results of the blood alcohol test conducted at the hospital. He argues that those test results were protected by the physician-patient privilege and that no exception to that privilege applies in proceedings to rescind a statutory summary suspension.

People v. Sadeq, 2018 IL App (4th) 160105 (November). Episode 563 (Duration 15:18)

Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.

Gist

Traffic stop leads to a dog sniff and a car search. Stolen cigarettes destined for resale were discovered in the car.

The Trooper

The trooper was a trained drug interdiction investigator. Interstate transportation of narcotics was his thing.

Part of this training includes traffic stops, behavior classes, interviewing techniques, and other ­training to recognize possible drug activities during traffic stops.

The Stop

Around 10:45 p.m., he was on patrol on Interstate 55 just south of Springfield. He observed a Ford Taurus traveling 75 miles per hour in a 70 mile-per-hour zone. He caught up to it, which maintained a speed of 75 miles per hour, and followed it north.

The trooper initiated a traffic stop by turning on his emergency lights. The car came to a stop in the middle of the right lane, which immediately raised the trooper’s suspicion.

In his experience, the vast majority of stops do not involve the car stopping in a lane of traffic. He testified that people who stop in the middle of a lane do so because they are nervous, and, in his experience, every time a car stopped in a lane of traffic, he discovered something that resulted in an arrest.

Using his police car’s external public address (PA) system, the trooper instructed the driver of the Taurus to pull over onto the shoulder.

The Men

Two men were in the car.

The Trooper thought they were extremely nervous right from the get-go. Their hands shook, they had rapid heartbeats viewed by the throbbing carotid artery and a “bouncing” stomach. The trooper also saw twitching eyes and a leg was bouncing up and down.

The Conversation

Just 15 seconds into the stop, the men were told they were going to receive a “quick warning.”

The trooper learned they rented the car from Avis at the Chicago airport. They were from Missouri. They stuttered when they spoke and had a heavy accent. The trooper thought the long pausing and stuttering meant they were making up the answer on the spot.

Back To The Squad

Once back in his police car, the trooper confirmed with dispatch that the rented Taurus was “clear.” The men had no warrants

Four minutes and forty-five seconds into the stop, the trooper directed the driver over the police car’s PA system to “come here,” meaning the police car. He explained that he typically invites every driver to whom he issues a written warning to sit in his police car as he fills out the warning because it is safer than filling it out on the side of the road and because he is a “friendly guy.”

This gave the trooper an opportunity to talk and ask more questions.

The man couldn’t explain where in Missouri they were coming from, he said they were at his cousin’s friends house. The trooper asked about how long they visited and how long they had been traveling. He learned the family business was in a gas station with a grocery store.

Seven minutes and forty-five seconds into the stop, the trooper radioed for backup. The man remained extremely nervous throughout their conversation, even though the trooper repeatedly told him he would only receive a warning, which would not cost him anything. In his experience, drivers relax significantly when they know they are not getting a ticket.

The trooper asked again about the trip, where they went, why no bags, who they visited, ect…

11 minutes and 20 seconds into the stop backup arrives.

Back To Talk To The Passenger

The trooper said he didn’t believe the drivers story and he wanted t...

People v. Williams, 2018 IL App (2d) 160683 (October). Episode 558b (Duration 11:25)

Challenging this DUI traffic stop gave us a reason to review exactly what it takes for police to find probable cause for a DUI arrest in Illinois.

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The Stop

Around 1 in the morning officer sees a car with the left-turn arrow activated. It then proceeded straight through the intersection. The car then lunged into the intersection, paused, and then continued through into the parking lot for the Elgin Mall.

The officer stopped the car.

DUI Indicia

Defendant’s speech was “kind of mumbled, slow and slurred,” and he smelled an alcoholic beverage “coming from [defendant’s] person.” Defendant advised the officer that he had come from a bar—JB’s.

Defendant said he had consumed four beers.

DUI Investigator Arrives

Suspecting that defendant might be impaired, the first officer called a second officer to the scene. The second officer was more experienced in DUI investigations. The second officer arrived a few minutes later.

The DUI investigator testified that he spoke with defendant and asked him to step out of the vehicle. Defendant emerged from the vehicle without stumbling or falling, but he swayed as he stood outside the vehicle.

The second officer also smelled the odor of alcohol on defendant. He also noticed the defendant’s eyes were “red, bloodshot, glassy, watery.”

Defendant refused to perform field sobriety tests. Defendant said a football injury prevented him from performing the tests. He also claimed that he could not walk a straight line sober.

Defendant was then arrested for DUI.

The Car Search

The car was searched and police discovered what appeared to be cannabis pipes. They still had a little cannabis inside them.

No Fields,

Interview with attorney Charles Schierer. Episode 556 (Duration 24:34).

Charles Schierer of East Peoria, Illinois, explains why it’s a good time to change the “smell of cannabis” rule.

In This Episode…

“Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?“ — Charles Schierer

Attorney Charles Schierer

Charles Schierer’s first love is practicing criminal law in federal court. He started in the Peoria County Public Defender’s Office. It didn’t take him long before he was practicing before the United States Central District District Court.

Chuck’s firm handles civil personal injury claims, auto accidents, federal criminal defense, state criminal defense and appeals. Chuck is currently the CJA Central District Panel Representative. 

Contact Information

Schierer & Ritchie, LLC1009 Illini DriveEast Peoria, IL 61611

(309) 839-2024

“Can’t Miss” Moments:

✓ Why you have to divide the world into how things were before the Cannabis Control Act and how things are after the act. Before the act, the law clearly, unmistakably allowed police certain liberties. Anybody who did criminal defense work came across these cases. How do you defend against this kind of stop? Now the rules are up for grab. (Go to 4:30)

✓ Under 10 grams possession of cannabis is not a crime. Should the liberties we give to the police change accordingly? Jump to this section to listen to Chuck’s personal opinion on what the best version of the “smell of cannabis” rule should be. The rippling-domino effect gets ignored at your own peril. (Go to 5:40)

✓ The truth about what decriminalization really means. What does it mean for us? What does it mean for the police? Do we really “get it?” How is this the same as the smell of alcohol? How is this different from the smell of alcohol? (Go to 6:18)

✓ Decriminalization means possessing minor amounts of cannabis is not a crime anymore. It means all our problems are gone and we don’t have to worry about the government having their nose in our business anymore…WRONG. Decriminalization is not exactly the same as legalization.  (Go to 8:18)

✓ The burning leaves example…the difference between burning yard leaves and burning cannabis leaves…a real life practical example…The absurdity of police action…What police are really looking for in these cases. Nothing wrong with being a little  intellectually honest and consistent. (Go to 9:12)

✓ “Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?” (Go to 13:10)

✓ We may have to rethink what we are doing in light of what other states are doing. See Massachusetts for a great example. Believe it or not, New York looks like it got it right. The further west you go, the more people begin to lose their minds. California, Arizona and Colorado got whacky with this, quite the opposite of what you would have expected from those weed loving states.  Here’s the best way to interpret what those states have said on this issue. (Go to 14:40)

People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02)

It’s unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it’s unclear what’s the best remedy.

Gist

Defendant was cited for DUI involving alcohol, DUI involving drugs, and various traffic offenses. Before trial, the state was ordered to provide defendant with a squad-car video of the traffic stop. It failed to do so, and defendant moved to bar evidence of the events captured by the video, as a sanction.

The trial court denied the motion.

What Happened To The Video?

The parties stipulated that the deputy would testify that he recorded the stop, the video was never uploaded to the system where videos were stored, he could not explain why it was not uploaded, and he was unsure if the recording was still “in the cloud.”

According to the deputy, the video equipment was not malfunctioning, but, when he checked the system where the videos were stored, he noticed that it was not there, so no video was ever uploaded. He thought the video entered the cloud, because he saw space for video on his computer free up after uploading, but that, since there were multiple videos, he could not say for sure whether the video from defendant’s stop was uploaded.

When he tried to download the video, he was unable to find defendant’s stop or any of the other stops that he had uploaded. The video either did not exist or was irretrievable.

The court sought to clarify by asking, “It was not sent to the [c]loud and unretrieved? It was actually not sent anywhere?”

The state responded that, because of a malfunction in the computer, the video was not sent to the cloud.

The court then stated that there was nothing to indicate that the video ever existed and was destroyed.

Motion For Sanctions

Defendant moved in limine for the following nonpattern jury instruction:

“If you find that the State has allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State’s interest.”

The court denied the motion, noting that nothing showed that the State intentionally destroyed evidence. See People v. Danielly, 274 Ill. App. 3d 358, 367 (1995), and Arizona v. Youngblood, 488 U.S. 51 (1988) (officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police).

See Also Civil JI 5.01

Here a jury is told that it may infer that missing evidence that was within a party’s power to produce would have been adverse to that party.

Civil JI 5.01.

See also Illinois Discovery Law.

The DUI Case

At around 11 p.m., the deputy saw defendant make a wide right turn and cross over the centerline multiple times. Defendant was driving 59 miles per hour in a 45-mile-per-hour zone. Car pulled over. The squad car had an audiovisual system that automatically turned on at that time.

The deputy approached from the passenger side of the vehicle, observing that there was also a person in the passenger seat.

Defendant gave his driver’s license but could not locate his insurance card. The deputy observed that defendant’s movements were slow and lethargic. The deputy also smelled alcohol coming from the vehicle, and the odor got stronger when defendant spoke.

People v. Bonilla, 2018 IL 122484 (October). Episode 552 (Duration 8:50)

Constitutional violation did not depend on whether the common door to the apartment was locked.

See Also

* Episode 364 – People v. Bonilla – Do Single Family Homes Have More Constitutional Protection Than Apartment Buildings?

* Episode 464 – Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments? – A review of:

– Florida v. Jardines, 133 S. Ct. at 1409 (2013)

– People v. Burns, 2016 IL 118973 (March)

– People v. Bonilla, 2017 IL App (3d) 160457 (June)

– People v. Martin, 2017 IL App (1st) 143255 (June)

Issue

The question of law at issue in this appeal is whether the warrantless use of a drug-detection dog at the threshold of an apartment door, located on the third floor of an unlocked apartment building containing four apartments on each floor, violated defendant’s fourth amendment rights.

Facts

Defendant, Derrick Bonilla, lived in an apartment at Pheasant Ridge Apartment Complex in Moline, Illinois.

The East Moline Police Department received a tip that defendant was selling drugs from his apartment. Acting on that tip officers brought a trained drug-detection dog to defendant’s apartment building. The exterior doors to the apartment building were not locked. The three-floor apartment building contained four apartments on each floor.

Once inside the building, the canine officer walked his drug-detection dog through the second-floor common area. The dog showed no interest in the second-floor common area and did not alert on any of the apartment thresholds. The officer then walked his dog through the third-floor common area. The dog showed no interest in units 301, 302, or 303. As the dog came to defendant’s apartment, unit 304, however, it moved back and forth in the doorway, sniffed at the bottom of the door, and signaled a positive alert for the presence of narcotics.

Got A Warrant

Officers obtained a search warrant for defendant’s apartment based on the drug-detection dog’s alert.

Officers searched defendant’s apartment and found cannabis.

Was The Use Of The Dog Legal?

The State argues that use of the drug-detection dog did not violate defendant’s fourth amendment rights because the common-area hallway in front of defendant’s apartment door did not constitute curtilage.

Defendant counters that use of the drug-detection dog at the threshold of his apartment door violated the fourth amendment to the United States Constitution (U.S. Const., amend. IV). According to defendant, “a citizen’s home is first among equals in Fourth Amendment jurisprudence, and the threshold is part of the home as a matter of law.”

Burns & Jardines

The State argues that this case is distinguishable from Burns because, here, the officers conducted a dog sniff in the unlocked common-area hallway outside of defendant’s apartment door and the landing was not part of the defendant’s curtilage under the “property-based” analysis announced in Jardines.

According to the State, under Burns, an unlocked apartment common area is not curtilage.

Defendant counters that under Burns and Jardines, the threshold of defendant’s apartment is constitutionally protected curtilage. Here,

People v. Lopez, 2018 IL App (1st) 153331 (October). Episode 549 (Duration 12:56)

Is the identity of a driver subject to suppression after an illegal traffic stop?

Gist

On appeal, defendant contends that the court erred in denying his motion to quash arrest and suppress evidence. Specifically, he argues that the anonymous tip relied upon by the arresting officer was unreliable and inadequate to establish reasonable suspicion of drunk driving.

We reverse.

Charges

Defendant was charged with DWLS under section 6-303(a) of the Illinois Vehicle Code, stemming from a traffic stop. The court found defendant guilty and sentenced him to 24 months’ probation and 30 days’ imprisonment.

The Tip

The arresting officer testified that at around 8:00 p.m., he was on duty near the intersection of Pulaski Road and 50th Street in Chicago.

He received a message from another police vehicle that there “was a DUI driver heading outbound on Pulaski from 43rd Street.” The vehicle was described as a black Expedition with a partial license plate number NZ 1. The driver was described as “a male Hispanic.”

The officer did not know the identity of the person who reported the alleged drunk driver, nor did he know how much time elapsed between the initial report and the eventual traffic stop. He “guessed” that two minutes passed between the time the tip was reported and the time he identified the vehicle. This guess was based on the time it would take a car to travel from 43rd Street to 50th Street.

The Stop

The officer then spotted a black Expedition, with a license plate starting with N 211 driving southbound on Pulaski Road. He pulled up behind the Expedition at the intersection of Pulaski Road and 50th Street. He did not observe any traffic violations or improper lane usage.

After the light turned green, he activated his emergency lights, and the Expedition immediately pulled over. He did not have a warrant. Defendant was quickly identified and the officer determined that defendant’s license was not valid. He then arrested defendant for driving without a valid license.

Later defendant was charged with DWLS.

Issue

Defendant contends that the circuit court erred in denying his motion to quash arrest and suppress evidence because the officer lacked reasonable, articulable suspicion of criminal activity to perform the traffic stop.

Informant’s Tip

When analyzing whether an informant’s tip is sufficient to justify an investigatory stop, the court first assesses the reliability of the tip. Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1688 (2014). If the tip is found to be reliable, the court then analyzes whether the tip “created reasonable suspicion of an ongoing crime *** as opposed to an isolated episode of past [wrongdoing].”

Informant’s DUI Tip

This court has had many opportunities to review the question of how reliable and detailed an informant’s tip about an allegedly drunk driver must be to justify an investigatory stop. See, e.g., Village of Gurnee v. Gross, 174 Ill. App. 3d 66, 69 (1988) (“reckless driving complaint, standing alone, did not provide articulable facts sufficient to justify an investigatory stop”); Village of Mundelein v. Minx, 352 Ill. App. 3d 216, 222 (2004) (finding “report[ ] that defendant was ‘driving recklessly,’ without indicating what observations led [the tipster] to this conclusion, e.g., whether defendant was speeding, running red lights, weaving between lanes, etc.” insufficient to justify stop); People v. Shafer, 372 Ill. App. 3d 1044, 1054 (2007) (finding tip from restaurant employee about a customer who was “creating a disturbance an...

People v. Nere, 2018 IL 122566 (September). Episode 541 (Duration 26:58)

Prepare for a PhD on criminal causation in this drug overdose case.

Gist

Defendant was charged with drug-induced homicide after her friend overdosed.

Facts

The victim died in the bathroom of her mother’s apartment in Wheaton.

Friends and family had gathered to celebrate her release from prison. Taylor and other family members had gathered there to celebrate Taylor’s release from prison the previous day. The victim called defendant to arrange a ride home for the victim’s girlfriend.

Defendant gave heroin, crack cocaine, a syringe, and a crack pipe to the victim when she arrived at the residence. The pipe and syringe were wrapped in a dirty sock that had blood on it. Taylor then went back into the apartment, told her children that she was going to take a shower, and told her nephew that he needed to get out of the bathroom. Taylor went into the bathroom and, approximately 15 minutes later, turned on the shower.

The Bathroom

After talking to the victim’s girlfriend over the phone the nephew alerted his grandmother and other family members, and several of them began trying to enter the locked bathroom.

They eventually removed the doorknob but still could not open the door. Joshua called 911. Officers arrived and forced the door open. Victim was unresponsive. The officers carried her to the living room and performed CPR. Paramedics arrived a few minutes later and transported her to the hospital, where she was pronounced dead.

Physical Evidence

The officers collected from the bathroom a bloodstained sock, a glass pipe, a small plastic bag, cigarettes, a lighter, a drug-cooking spoon, a syringe, and two foil bindles containing heroin residue. A DNA analysis of the blood on the sock came back as a match for defendant.

The Cause of Death

The forensic pathologist who performed the autopsy testified that the victim died of heroin and cocaine intoxication due to intravenous drug use. The victim had fresh needle puncture wounds on her arm.

The pathologist testified that it was clear that she had recently ingested heroin. When 6-MAM and morphine are found in the blood, the conclusion is usually that they both came from ingesting heroin. If enough time has passed, only morphine will appear in the blood. The significance of 6-MAM is that it shows recent use of heroin.

There is no “safe” amount of heroin to ingest, and a person can die from taking their usual amount. The amount of heroin ingested by the victim could have been fatal by itself. It was also possible that the victim had consumed drugs earlier in the day.

Sentence

A DuPage County jury convicted defendant of drug-induced homicide (720 ILCS 5/9-3.3(a)). She was sentenced to 9 years.

Issue

The main issue in this case revolves around how we define causation in a drug-induced homicide and exactly what the jury instructions should say about this.

Specifically, the reviewing court had to consider whether the trial court erred in using IPI Criminal 4th No. 7.15 (Supp. 2011) to define causation rather than instructing the jury according to the principles set forth by the Supreme Court in Burrage. See Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881 (2014).

The trial court was required to use this instruction rather than defendant’s proposed causation instructions if it contained a correct statement of the law. The principal question we must address, therefore, is whether IPI Criminal 4th No. 7.15 (Supp. 2011) properly sets forth the law of causation applicable to defendant’s case.

“Cause In Fact” v. “Proximate Cause”

Generally, when a crime requires both an act by defendant and a speci...

People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15)

In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.

Lower Case Opinion

People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)

Officer untrained in the use of narcotics doesn’t know enough to make this DUI drug arrest.

The trial court found that the officer lacked probable cause to arrest defendant for DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the appellate court concluded that a person with no specialized training could not properly opine on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of which are “commonly known.”  2017 IL App (3d) 160025, ¶ 16.

In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985).

Facts

The officer had no specific DUI/drug detection training.

He responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with the passenger side tires on the grass and the driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was running.

The officer observed defendant behind the wheel, with his foot on the brake and his left hand on the steering wheel.

Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59. Eventually, the paramedics convinced him to leave the vehicle; they placed him in the ambulance and transported him to the hospital.

Officer’s Observations

The officer saw a Red Bull can “on the passenger’s side in plain view.”

The can had been cut or torn in half and had burn marks on its interior. On the outside bottom surface of the can, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” He also saw an uncapped one-milliliter syringe on the passenger seat. He described the syringe as having been “used.” He also found a small plastic bag containing a brown granular substance in defendant’s wallet in the center console.

Results of testing of this substance were not available at the time of the hearing.

He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”

He also testified that prior to the arrest defendant told him that he was diabetic.

Fresh Track Marks

On cross-examination, the officer testified that he spoke to the paramedics at the scene to ask if they had seen any signs of intoxication. They reported that defendant did not smell of alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used.

Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and was drifting in and out of consciousness.

Suspension Recession Hearing

A motorist may request a judicial hearing for rescission of a statutory summary suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a).

The scope of the hearing is limited to four specific statutory g...