Monday, January 23, 2012

DUI Law - Illinois Dismisses Illegal DUI Stop from Anonymous Call

Congratulations goes out to Earl Vergara, NCDD member and Illinois attorney who handled this matter on appeal. In People of Illinois v. Smulik, --- N.E.2d ----, 2012 IL App (2d) 110110, 2012 WL 34367 (Ill.App. 2 Dist.) the police received a call of "a possible DUI with complainant following." The police located the vehicle that fit the description parked in a gas station. The police pulled behind the vehicle, but the officer believed she did not block in the defendant's car. After speaking with defendant, Johnson spoke with the complainant, who had followed defendant to the gas station. The complainant told Johnson that she had seen defendant drinking wine and vodka. The trial court found that a seizure had nevertheless occurred, and that the seizure was unsupported by reasonable suspicion. 

The appellate court affirmed the motion to quash arrest, writing:

“A particular encounter constitutes a seizure for fourth amendment purposes when, considering all the surrounding circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise end the encounter. [Citation.] Additionally, either the police must use physical force or the defendant must submit to the assertion of police authority.” Village of Mundelein v. Minx, 352 Ill.App.3d 216, 219 (2004).

 In City of Highland Park v. Lee, 291 Ill.App.3d 48 (1997), we held that, when a police officer activates his or her emergency lights to curb a vehicle, a reasonable person in the driver's position would not feel free to decline the encounter with the officer. Id. at 54. In Minx we extended the rule to cases such as this one, where, with his or her vehicle's emergency lights activated, a police officer pulls up behind a parked vehicle. Minx, 352 Ill.App.3d at 220; see also Lawson v. State, 707 A.2d 947, 951 (Md.Ct.Spec.App.1998) (“Few, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain.”). When Johnson pulled in behind defendant's vehicle with her own vehicle's emergency lights activated, defendant made no attempt to drive off. He therefore submitted to the encounter and was seized at that point. Minx, 352 Ill.App.3d at 220 (“when [the defendant] noticed the emergency lights, he submitted to them and did not leave”).

Applying the above law to the facts of this case, the court stated:

"At the point at which the seizure occurred, Johnson had no personal knowledge of any facts suggesting that defendant was committing or was about to commit a crime. In Linley, we summarized the general principles that apply when a Terry stop is based on facts not personally known to the officer who effects the stop. We observed:

“An investigatory stop need not be based on personal observations by the officer conducting the stop (or by those officers whose knowledge is imputed to the officer conducting the stop). [Citation.] A stop may also be based on information received from members of the public. [Citation.] However, the informant's tip must bear “ ‘some indicia of reliability’ “ in order to justify the stop. [Citation.] ‘[A] reviewing court should consider the informant's veracity, reliability, and basis of knowledge.’ [Citation.] Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances. [Citation.]

"The nature of the informant is relevant. All other things being equal, information from a concerned citizen is ordinarily considered more credible than a tip from an informant who provides information for payment or other personal gain. [Citation.] Another significant factor in determining the reliability of a tip received from a member of the public is whether, prior to conducting a Terry stop, the officer is aware of facts tending to corroborate the tip. [Citation.] This court has observed that ‘[c]orroboration is especially important when the informant is anonymous [citation] and is even more important when the anonymous tip is given by telephone rather than in person.’ [Citation.] There is authority, however, that a tip conveyed via an emergency telephone number—a 911 call for instance—should not be considered ‘truly anonymous,’ even if the caller does not specifically identify himself or herself. [Citation.] The rationale is that such a caller is likely aware that, because the authorities often record emergency calls and have the means to instantly determine the telephone number from which a call was placed, they may therefore be able to determine the caller's identity. That an informant has placed his or her anonymity at risk may be considered in assessing the reliability of the tip. [Citations.]” Linley, 388 Ill.App.3d at 750–51.

Concluding that the stop was illegal, the court concluded:

"Here the stop was based on a tip received from an informant .FN2 The tip was conveyed to Johnson by a dispatcher; it does not appear that Johnson spoke with the informant until after initiating the Terry stop by parking her police car, with its emergency lights activated, behind defendant's vehicle. Accordingly, only the information relayed by the dispatcher to Johnson is germane to the question of whether the stop was supported by a reasonable suspicion that defendant had committed or was about to commit a crime. What Johnson knew based on the dispatch was that the informant had observed an individual drinking at an establishment called Redstone. The informant thought that the subject of the tip was “drunk,” and she was “concerned about him driving.” The subject was driving a silver Jeep, and the informant, who was following him, advised police of the vehicle's location and license plate number. There is no evidence that the informant provided her name or that she contacted the police through an emergency number. Thus the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police. In this regard, the evidence falls short."

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