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No. 2--01--0660

JUSTICE GROMETER delivered the opinion of the court:

Following a stipulated bench trial, defendant, Karen Isaac,was convicted of driving under the influence of drugs or alcohol(625 ILCS 5/11--501(a)(5) (West 2000)) and unlawful possession ofa controlled substance (720 ILCS 570/402(c) (West 2000)) andsentenced to 24 months' probation. She appeals, contending that(1) the trial court erred in denying her motion to quash her arrestand suppress evidence because the arresting officer did not havereasonable grounds to stop her car, and (2) the court erred inconducting a bench trial without determining that defendant hadknowingly waived a jury trial.

Defendant was arrested following a traffic stop. She moved toquash the arrest and suppress evidence. At the hearing, theparties stipulated to the testimony of Bloomingdale police officerTony Pagan. According to the stipulation, Pagan would havetestified that he was on routine patrol at about 3 a.m. on October1, 2000. He was driving west on Lake Street, which in that areahas two westbound lanes and a speed limit of 40 miles per hour. InPagan's opinion, the regular flow of traffic on that section ofLake Street is 45 to 50 miles per hour. The weather that morningwas clear and road conditions were normal.

Driving in the westbound curb lane, Pagan pulled up behind asilver Buick that appeared to be traveling below the speed limit. He paced the car and found it was going about 30 miles per hour. As he did this, cars began to back up behind him until about sixvehicles, not including the officer's squad car, reduced theirspeed behind the Buick.

According to the written stipulation in the record, "inaddition to obseving [sic] the congestion of traffic behind hisvehicle, [Pagan] formulated a subjective concern over why the Buickwas traveling below the posted speed limit, and, accordingly,effected a traffic stop." Defendant was the driver of the Buick. Ultimately, Pagan arrested her for driving under the influence andpossession of a controlled substance. He also issued her a ticketfor violating the "minimum speed regulation." (The stipulationcites to "625 ILCS 511--600(a)," but presumably refers to section11--606(a) (625 ILCS 5/11--606(a) (West 2000)), which prohibitsdriving so slowly as to impede the flow of traffic.)

The trial court denied the motion to quash and suppress. Citing People v. Quigley, 226 Ill. App. 3d 598 (1992), the courtruled that the stop was justified by the officer's communitycaretaking function, implicitly rejecting the State's contentionthat the purported traffic violation justified the stop. The courtdenied defendant's motion to reconsider. Following a stipulatedbench trial, the court found defendant guilty. Defendant timelyappeals.

Defendant contends that the court erred in denying her motionto quash and suppress because the officer lacked reasonable groundsfor the traffic stop. Defendant argues that this case isindistinguishable from People v. Dionesotes, 235 Ill. App. 3d 967(1992), which held that merely driving slowly did not providereasonable grounds for a traffic stop. The State responds thatthis case is distinguishable from Dionesotes because the officerreasonably suspected defendant of violating a specific traffic lawand issued a ticket for that offense.

Generally, a stop for a minor traffic violation is considereda Terry stop (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.Ct. 1868 (1968)). People v. Smith, 315 Ill. App. 3d 772, 775(2000). A Terry stop is permissible if the officer has areasonable suspicion "that the person has committed, or is about tocommit, a crime." People v. Brownlee, 186 Ill. 2d 501, 518 (1999). In reviewing a ruling on a motion to suppress and to quasharrest, we must accept the trial court's factual findings unlessthey are against the manifest weight of the evidence. People v.Gonzalez, 324 Ill. App. 3d 15, 18 (2001). If we accept the trialcourt's findings, we review de novo whether suppression iswarranted under these facts. People v. Gonzalez, 184 Ill. 2d 402,412 (1998). Because the parties here proceeded on stipulatedevidence, the trial court's fact-finding role was limited and,giving appropriate weight to the inferences the trial court drewfrom the facts, our primary function is to review de novo whetherthe facts justified the stop at issue.

In Dionesotes, an officer observed defendant driving about 10miles per hour on a residential side street where the speed limitwas 25 miles per hour and then come to a complete stop for morethan a minute. We rejected the contention that defendant's drivingjustified a traffic stop, holding that "unusual behavior alone doesnot necessarily support a reasonable suspicion that a crime hasoccurred." Dionesotes, 235 Ill. App. 3d at 970.

In Dionesotes, the officer did not identify a specific offenseshe thought defendant was committing, but merely found his behavior"unusual." Of course, observing a driver violating a statutewarrants a traffic stop. See Smith, 315 Ill. App. 3d at 775. However, at a minimum, the officer must reasonably believe that thedriver is violating a traffic law.

Here, the officer ticketed defendant for violating section 11--606(a) of the Vehicle Code. That section prohibits driving "atsuch a slow speed as to impede or block the normal and reasonablemovement of traffic except when reduced speed is necessary for safeoperation of [a] vehicle or in compliance with law." 625 ILCS5/11--606(a) (West 2000).

The issue here is whether defendant was actually impeding anytraffic. Although the undisputed facts show that six cars werelined up behind defendant and Officer Pagan, the undisputed factsalso show that the road had two westbound lanes. Why the othercars did not simply use the other lane to pass is not clear. Defendant surmises that the other drivers were reluctant to pass asquad car at 3 a.m. At any rate, because Pagan came up directlybehind defendant, it appears that no cars were backed up behind herbefore Pagan started following her.

We are aware of no reported Illinois case in which a violationof section 11--606(a) was the basis for a traffic stop. Cases fromother jurisdictions have held that "impeding traffic" statutes maybe the basis for a valid traffic stop if there is evidence that adefendant's slow driving was directly responsible for slowing othertraffic. See State v. Haataja, 611 N.W.2d 353, 355 (Minn. App.2000) (evidence that traffic was "backed up" behind defendant);Ledford v. State, 237 Ga. App. 712, 714, 516 S.E.2d 565, 567 (1999)(evidence that truck slowed down behind defendant; moreover noseizure occurred because officer merely approached defendant'sstopped car to ask questions).

On the other hand, in State v. Hagerty, Nos. 2001--P--0083,2001--P--0084 cons. (Ohio App. 2002), an officer followeddefendant's car on a four-lane highway to gauge its speed. Thecourt noted that the only car actually impeded was that of theofficer and he could easily have gone around her. The only reasonthat he followed her was to track her speed, not because he wasimpeded. In Richardson v. State, 39 S.W.3d 634 (Tex. App. 2000),the court found a traffic stop for allegedly impeding trafficunreasonable where "there was little or no traffic on the road forappellant to impede." A videotape showed only one car passdefendant and no other cars following or waiting to pass. Richardson, 39 S.W.3d at 639.

Here, it was not reasonable to believe that defendant wasviolating the statute against impeding traffic. Although at leastsix cars were driving behind her, it appears that they simply couldhave gone around her in the other westbound lane.

The stipulated evidence shows that the officer's primaryconcern was not a statutory violation, but curiosity about whydefendant was driving the way she was. According to thestipulation, in addition to observing the "congestion of traffic"behind his vehicle, the officer "formulated a subjective concernover why the Buick was traveling below the posted speed limit." The ticket for the minimum speed violation appears to have been anafterthought.

To hold otherwise would give police virtually unfettereddiscretion to stop a vehicle at any time. A driver traveling onemile per hour above the posted speed limit would be speeding whileone traveling one mile per hour below the limit would be guilty ofimpeding traffic. Given that pretextual stops--using a minortraffic violation to attempt to discover evidence of a more seriousoffense--are constitutionally permissible (People v. Juarbe, 318Ill. App. 3d 1040, 1051 (2001), citing Whren v. United States, 517U.S. 806, 135 L. Ed. 2d 89, 98, 116 S. Ct. 1769 (1996)), the policealready have wide latitude to effect a traffic stop based on one ofa myriad of minor violations that might not otherwise meritscrutiny. To permit, without more, a stop of someone drivingcautiously and below the posted speed limit would allow police tostop virtually anyone at any time without waiting to witness adiscreet traffic violation.

We also reject the State's assertion that the stop can bejustified under the community caretaking function of the police. A community caretaking encounter involves no coercion or detentionand thus does not involve a "seizure." Gonzalez, 324 Ill. App. 3dat 19; People v. Leifker, 307 Ill. App. 3d 25, 28 (1999). In Cityof Highland Park v. Lee, 291 Ill. App. 3d 48, 54 (1997), we heldthat an officer's use of emergency lights to effect a traffic stopwas a show of force amounting to a seizure. We rejected Quigley,upon which the trial court relied, to the extent it held that sucha detention was consistent with the community caretaking function. Lee, 291 Ill. App. 3d at 53. Here, the officer effected a trafficstop. Community caretaking is based on the assumption of avoluntary encounter, and the traffic stop removed this case fromits ambit.

Because the traffic stop was not supported by reasonablegrounds that defendant was committing an offense, the circuit courterred in denying the motion to quash and suppress. Without thesuppressed evidence, there would be no evidence to provedefendant's guilt. Therefore, we reverse defendant's convictions.Because of our resolution of this issue, we need not reachdefendant's second contention.

The judgment of the circuit court of Du Page County isreversed.

Reversed.

BOWMAN and KAPALA, JJ., concur.