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No. 2--03--0923

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

The State appeals from an order quashing the arrest of defendant, Michael G. Long, andsuppressing the evidence stemming from that arrest. It contends that the court erred in finding thatdefendant lacked actual physical control of his truck at the time of his arrest for driving under theinfluence (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 2002)). We hold that the uncontestedevidence that defendant was lying on the seat of the truck and that the keys were on the floor underthe steering column was sufficient to give the arresting officer probable cause to conclude thatdefendant had actual physical control of the vehicle. We also hold that defendant lacked standing toobject to the arresting officer's entry onto the private property where defendant had parked the truck. As a result, we reverse the order of the trial court.

Officer Tim Hoffstead of the Genoa police department arrested defendant for DUI on June21, 2002. Defendant moved to quash the arrest and suppress the resulting evidence, alleging onlythat Hoffstead lacked probable cause to make the arrest.

At the suppression hearing, Hoffstead testified that, at approximately 1 a.m. on the night ofthe arrest, he noticed defendant's pickup truck parked in an alley running from a side street to aparking lot between two businesses that fronted on Main Street in Genoa. The truck's lights andengine were off. Defendant introduced several exhibits, including a map and surveyor's plat,illustrating the layout of the area in which the truck was parked. At defendant's request, Hoffsteadpointed out (by drawing on two of the exhibits) the place in which he remembered finding the truck. These exhibits show the truck parked so as to block the alley, which was the only good way to exitthe parking lot. Hoffstead understood the alley to be city property and had always patrolled it. (Defendant's exhibits suggest that both the alley and the parking lot were private property.) Becausehe thought that the alley was an unusual place for a vehicle to be parked at 1 a.m., he went toinvestigate the truck. When he shined his spotlight on the truck, it appeared to be unoccupied, but,as he approached it while shining his flashlight through the windows, defendant sat up. Hoffsteadconcluded that defendant had been lying across the front seat. Hoffstead found the keys to the truckon the floor of the driver's side, below the steering column. When he spoke to defendant, he smelledalcohol and noticed that defendant's eyes were glassy and bloodshot.

Defendant testified that he had parked his truck, not in the alley, but instead near the back ofthe parking lot in a graveled parking area behind several Dumpsters. He admitted that he had beendrinking that night and that, when Hoffstead found him, he had his jeans pulled halfway down becausehe had been urinating in the truck. Hoffstead confirmed the accuracy of defendant's description ofhis own condition at the time of his arrest.

The State moved for a directed finding, contending that the evidence showed that Hoffsteadhad a proper basis to investigate the truck and that defendant had been in actual control of it whenHoffstead found him. Defendant argued that Hoffstead had lacked a proper reason to investigate avehicle legally parked on private property. The court ruled in the State's favor, finding that, althoughdefendant was on private property, Hoffstead was acting properly in patrolling the lot and that, onceHoffstead encountered defendant, Hoffstead had reasonable grounds to believe that defendant wasunder the influence of alcohol.

Defendant moved for reconsideration, contending that case law supported the conclusion thathe was not in actual physical control of the vehicle when Hoffstead found him. He argued that, underPeople v. Cummings, 176 Ill. App. 3d 293 (1988), and City of Naperville v. Watson, 175 Ill. 2d 399(1997), a court must decide the issue of actual control on a case-by-case basis. He also pointed toCummings's suggestion that policy considerations should allow a court to find that a defendant is notin actual physical control if the circumstances suggest that he or she is trying to "sleep it off." TheState contended that the supreme court in Watson had rejected this suggestion. It argued that thelaw considers that a person within a vehicle and with access to the keys is in actual physical controlof the vehicle. The court granted defendant's motion, and the State, having filed a certificate ofimpairment, now appeals.

At the outset, we must decide the appropriate standard of review in this case. The Statecontends that, because no material facts are in dispute, our review should be de novo; defendantcontends that, because whether a person has actual physical control of a vehicle is a question of fact,we should reverse the trial court's finding only if it is against the manifest weight of the evidence. Weagree with the State that review is de novo, although not precisely for the reason the State gives. Anyconfusion regarding the standard of review stems from the way in which the parties have argued thematter here and in the trial court. Initially, defendant's suppression motion correctly identified thecritical question as whether Hoffstead had probable cause to conclude that defendant had actualphysical control of his truck, and thus whether Hoffstead had probable cause to arrest him. Fromthen on, however, the parties have argued the matter as though the question were whether defendantin fact had actual physical control of the truck. These are different issues, as the probable causestandard does not require that the arresting officer's conclusion that a defendant has committed anoffense be correct beyond a reasonable doubt, but only that it be reasonable. People v. Gherna, 203Ill. 2d 165, 176 (2003). We will review the issue the case in fact presents and not follow the falseleads of the parties in their briefs.

When reviewing a ruling on the issue of probable cause, because a trial court has the bestposition to weigh the credibility of the witnesses, observe the witnesses' demeanor, and resolve anyconflicts in their testimony, we will uphold its findings of historical fact unless they are against themanifest weight of the evidence. Gherna, 203 Ill. 2d at 175. If we accept the findings of fact, wereview de novo whether suppression is warranted under those facts. Gherna, 203 Ill. 2d at 175; seealso People v. Pitman, 211 Ill. 2d 502, 512-13 (2004) (clarifying that the proper standard of reviewis that set out in People v. Sorenson, 196 Ill. 2d 425, 430-31 (2001), and reiterated in Gherna, notthe older standard of review given in People v. Mitchell, 165 Ill. 2d 211, 230 (1995), as People v.Morris, 209 Ill. 2d 137, 153-54 (2004), and People v. Ledesma, 206 Ill. 2d 571, 576 (2003), hadmistakenly suggested). No dispute exists here over any of the historical facts except the preciselocation that defendant had parked his truck, which is not material to our analysis. We can thereforereview de novo the question of whether Hoffstead had probable cause to arrest defendant for DUI. The question of whether defendant in fact had actual physical control of the vehicle is not at issue.

In a motion to quash or suppress stemming from a warrantless arrest, the defendant has theinitial burden to present a prima facie case that, at the time of the arrest, his or her conduct was notindicative of the commission of a crime. People v. Drake, 288 Ill. App. 3d 963, 967 (1997). If thedefendant satisfies this burden, the State has the burden of proving by a preponderance of theevidence the existence of probable cause. See People v. Miller, 346 Ill. App. 3d 972, 986 (2004). Of the several elements that make up the offense of DUI, defendant contends that Hoffstead lackedonly a proper basis to believe that defendant "dr[o]ve or [was] in actual physical control of anyvehicle" (625 ILCS 5/11--501(a) (West 2002)). Defendant relied heavily on Hoffstead's testimonyin his attempt to establish his prima facie case. Instead, Hoffstead's testimony showed that he hadadequate grounds to believe that defendant had actual physical control of his truck.

"Probable cause to arrest exists when the facts known to the officer at the time of the arrestare sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime." People v. Love, 199 Ill. 2d 269, 279 (2002). This standard requires that the officer have more thana mere suspicion, but does not require the officer to have evidence sufficient to convict. People v.Cokley, 347 Ill. App. 3d 292, 298 (2004). The existence of probable cause is a commonsense,practical determination that a court should make upon consideration of the totality of thecircumstances. Illinois v. Gates, 462 U.S. 213, 233, 76 L. Ed.2d 527, 545, 103 S. Ct. 2317, 2329(1983).

Without commenting upon whether the undisputed facts known to Hoffstead at the time ofdefendant's arrest would be sufficient to sustain at trial a finding of actual physical control beyond areasonable doubt, we conclude that they were sufficient to establish probable cause. The issue ofactual physical control should be resolved on a case-by-case basis, giving weight to such facts aswhether the motorist (1) was in the driver's seat of the vehicle, (2) had possession of the ignition key,and (3) was physically able to start the engine and move the vehicle. Watson, 175 Ill. 2d at 402. Inthis case, defendant clearly was in the driver's seat and had his keys close to hand, if not actually inhand. Neither party presented evidence regarding defendant's ability to move the vehicle. Werecognize that the typical case in which courts have upheld the conviction of a sleeping or passed-outdriver has involved a defendant who left the keys in the ignition. See Watson, 175 Ill. 2d at 402(listing cases where courts upheld a finding that a sleeping driver was in actual physical control; allinvolved drivers who left keys in the ignition). Nevertheless, courts have affirmed convictions onless-than-the-strongest-possible evidence. For instance, in People v. Davis, 205 Ill. App. 3d 431, 433,436 (1990), the court sustained a conviction when the keys were in the ignition, but the defendanthad gone to the back seat and zipped himself into a sleeping bag. We conclude that the facts knownto Hoffstead at the time he arrested defendant are similar to those on which courts have affirmedconvictions. For the kind of practical, commonsense judgment involved in a probable causedetermination, this was more than sufficient.

Defendant contends that we can uphold the suppression on the alternative basis thatHoffstead's entry onto private property to investigate defendant's vehicle was improper. Defendantfails to provide any grounds on which we could conclude that he has standing to make such anargument. A defendant's standing to claim fourth amendment protection depends upon whether heor she has a legitimate expectation of privacy in the place invaded. People v. Kidd, 178 Ill. 2d 92,135 (1997). Factors a court should consider are (1) who owned the property; (2) whether thedefendant was legitimately present in the area searched; (3) whether the defendant had a possessoryinterest in the area or the property seized; (4) whether the defendant had previously used the areasearched or the area seized; (5) whether the defendant had the ability to control the property or toexclude others from using it; and (6) whether the defendant had a subjective expectation of privacyin the property. Kidd, 178 Ill. 2d at 135-36. Of these factors, the only one that could possibly favordefendant is (2): defendant may have been in a permitted parking spot. This is clearly insufficient togive defendant standing. See People v. Rios, 278 Ill. App. 3d 1013, 1015-16 (1996) (holding thattradespeople working in a building and storing tools there lacked standing to object to a search of thebuilding).

For the reasons stated, we reverse the order of the circuit court of DeKalb County quashingdefendant's arrest and suppressing the evidence deriving from that arrest, and we remand the matterfor further proceedings.

Reversed and remanded.

McLAREN and BYRNE, JJ., concur.