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No. 2--03--0387

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Patrick Minx, was arrested for driving under the influence of alcohol (DUI) andhis driving privileges were summarily suspended (cf. 625 ILCS 5/11--501.1 (West 2002)). Defendantpetitioned to rescind the summary suspension and moved to quash his arrest and suppress evidence,arguing that he was stopped in violation of the fourth amendment (U.S. Const., amend. IV). Thetrial court granted the petition and the motion, and the Village of Mundelein (the Village) timelyappealed. We affirm in part and dismiss in part.

First we must consider the scope of our jurisdiction. We have an independent duty to insurethat jurisdiction is proper in both civil and criminal cases (People v. O'Connor, 313 Ill. App. 3d 134,135 (2000)), and thus we address the issue of jurisdiction regardless of whether the parties raise it. In this case, the Village contends that we have jurisdiction over the appeal of the rescission of the summary suspension pursuant to Supreme Court Rule 303 (155 Ill. 2d R. 303) and the suppressionorder pursuant to Supreme Court Rule 604(a) (188 Ill. 2d R. 604(a)).

Supreme Court Rule 604(a) (1) provides:

"In criminal cases the State may appeal only from an order or judgment thesubstantive effect of which results in dismissing a charge for any of the grounds enumeratedin section 114--1 of the Code of Criminal Procedure of 1963; arresting judgment because ofa defective indictment, information or complaint; quashing an arrest or search warrant; orsuppressing evidence." (Emphasis added.) 188 Ill. 2d R. 604(a)(1).

It is well settled that Rule 604(a)(1) applies only to the State and not to municipalities. Village ofCary v. Pavis, 171 Ill. App. 3d 1072 (1988). In this case, there is no doubt that the Village intendedto prosecute under its local ordinance and not the corresponding section of the Illinois Vehicle Code(Code) (625 ILCS 5/11--501(a)(2) (West 2002)). The Village conceded this issue during oralargument before this court. Further, the citation issued to defendant supports the Village'sconcession. On the citation issued to defendant, the form has check boxes indicating various sectionsof the Code. Under this are two more check boxes, "ILCS" and "local ordinance." Next to the "localordinance" box is a space for the local ordinance citation. The "local ordinance" box is checked, butthere is no citation to any ordinance. The "ILCS" box is not checked. Because the Village'sconcession, along with the citation issued to defendant, shows an intent to prosecute under themunicipal ordinance, we lack jurisdiction to consider the suppression order relating to the DUI. SeeVillage of Mundelein v. Thompson, 341 Ill. App. 3d 842, 847 (2003).

The Village urges this court to overturn our decision in Village of Cary, 171 Ill. App. 3d1072, and hold that "a municipality can appeal the trial court's order granting a motion to quash arrestand suppress evidence under Supreme Court Rule 604(a) when the underlying charge is writtenexclusively as a municipal violation." We decline. Only the supreme court can make rules governinginterlocutory appeals, and we are constrained to follow these rules and the long string of casesinterpreting Rule 604(a) as applying only to State and not municipal appeals. See Village ofMaywood v. Houston, 10 Ill. 2d 117 (1956); Village of Park Forest v. Bragg, 38 Ill. 2d 225 (1967);Village of Mundelein v. Aaron, 112 Ill. App. 3d 134 (1983).

The Village also argues that this court has jurisdiction over the trial court's order regardingthe municipal DUI prosecution because the Village has written permission from the State's Attorneyto prosecute State Code violations. However, in this case, the Village was not prosecuting a StateCode violation. Rather, the record and arguments reveal that the Village was prosecuting a violationof its own municipal ordinance mimicking the State Code. Thus, Village of Cary controls as to theappeal of the suppression order, and this court lacks jurisdiction over the appeal of that order. Therefore, we address only the trial court's order rescinding the summary suspension.

According to the record, an individual contacted the Mundelein police department onDecember 30, 2002, and said that defendant's car, a Mercury Marquis with registration number 3836,was "driving recklessly." The caller, who was driving behind defendant's car, was willing to sign acomplaint. Officer Thomas Perdue was given this information and dispatched to the scene. Hepositioned his vehicle between the two cars and followed defendant, but he did not notice any erraticdriving. Although Officer Perdue drove past the informant's car, he did not know the informant'sidentity, did not speak to him, and did not know what he looked like. Defendant turned into hisdriveway, parked, and began exiting his car. Officer Perdue pulled up behind defendant. He activatedhis emergency lights either at this moment or shortly before reaching the driveway. Defendant didnot notice the police car until he had gotten out of his vehicle. At this point, he did not feel free toleave.

About two minutes after Officer Perdue stopped, another police car arrived at the scene. According to Officer Perdue, defendant failed all the field sobriety tests, smelled strongly of alcohol,and had bloodshot, glassy eyes. He refused to submit to a chemical test. Officer Perdue arresteddefendant for DUI, and defendant's driving privileges were summarily suspended. Defendantpetitioned to rescind the summary suspension and moved to quash his arrest and suppress evidence,challenging the propriety of the underlying stop. The trial court granted defendant's petition andmotion. The Village appeals, arguing that (1) defendant was not seized because he stopped hisvehicle before Officer Perdue exercised any show of authority and, alternatively, (2) the informant'stip gave Officer Perdue a lawful basis to conduct an investigatory stop.

Generally, a ruling on a petition to rescind a summary suspension will not be reversed unlessit is manifestly erroneous. People v. Rush, 319 Ill. App. 3d 34, 38 (2001). However, where, as inthis case, the relevant facts are undisputed, review of the ruling on the petition is de novo. Peoplev. Granados, 332 Ill. App. 3d 860, 862-63 (2002).

The Village first argues that defendant was not seized. A particular encounter constitutes aseizure for fourth amendment purposes when, considering all the surrounding circumstances, thepolice conduct would have communicated to a reasonable person that the person was not free todecline the officer's requests or otherwise end the encounter. People v. Brodack, 296 Ill. App. 3d71, 75 (1998). Additionally, either the police must use physical force or the defendant must submitto the assertion of police authority. Village of Mundelein v. Thompson, 341 Ill. App. 3d 842, 848-49(2003).

The Village cites People v. Scott, 249 Ill. App. 3d 597 (1993). There, an anonymous citizenapproached two police officers and said that an apparently intoxicated individual had just driven awayin a brown pickup truck. One officer drove in the direction indicated by the citizen and saw a brownpickup truck. He did not see the driver, the defendant, commit any traffic violations. The defendantpulled into a private driveway, and the officer pulled up behind him. The defendant exited the truckand staggered toward the squad car. The defendant swayed while he was standing, his breath smelledof alcohol, and he had slurred speech and bloodshot eyes. The officer arrested him for DUI anddriving while his license was revoked. Scott, 249 Ill. App. 3d at 599. The trial court granted thedefendant's petition to rescind the summary suspension of his driver's license and his motion to quashhis arrest, ruling that the defendant was improperly seized. This court reversed and remanded thecause, holding that the defendant had not been seized. We stated, "[t]he record is silent regardingany show of force or authority or any indication that the officer requested defendant to stop. *** Theevidence supports the inference that defendant voluntarily stopped his truck, exited and approachedthe officer." Scott, 249 Ill. App. 3d at 603-04.

We agree that Scott is very similar to the case at bar. However, as the trial court observed,the key difference here is that Officer Perdue asserted authority by activating his emergency lights. See City of Highland Park v. Lee, 291 Ill. App. 3d 48, 54 (1997) (use of emergency lights constitutesa show of authority). The Village argues that this distinction is irrelevant because defendant hadalready stopped and exited his car before noticing the emergency lights. Still, when he noticed theemergency lights, he submitted to them and did not leave; a reasonable person in those circumstanceswould not have felt free to ignore the officer and enter the house or walk away.

The Village next argues that even if defendant was seized, the informant's tip justified theseizure. Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), an investigatoryseizure is proper if the officer can point to specific, articulable facts that, when combined with rationalinferences derived from them, provide reasonable suspicion that the person seized has committed oris about to commit a crime. Thompson, 341 Ill. App. 3d at 848; see 725 ILCS 5/107--14 (West2002) (codifying Terry standard). The facts supporting the police officer's suspicion do not need toconstitute probable cause, but the officer's actions must be based on more than a mere hunch. Peoplev. Brown, 343 Ill. App. 3d 617, 622 (2003). In evaluating whether this standard has been met, weuse a totality-of-the-circumstances approach to achieve a fair balance between the legitimate aims oflaw enforcement and the rights of citizens to be free from unreasonable government intrusion. Peoplev. Ledesma, 206 Ill. 2d 571, 582 (2003).

An informant's tip may provide a basis for a lawful Terry stop, but the information must havesome indicia of reliability. Thompson, 341 Ill. App. 3d at 850. In the past, the reliability of the"citizen-informant" was judged by a standard different from that of the typical criminal informant oran anonymous informer. The citizen-informant was afforded a presumption of reliability. This ruleis sometimes referred to as the citizen-informant doctrine. However, our supreme court abolishedthis bright-line test and replaced it with the totality-of-the-circumstances analysis. People v. Adams,131 Ill. 2d 387 (1989). The supreme court stated, "[T]he rigidity embodied in the presumptionsconcerning the classifications is no longer applicable." Adams, 131 Ill. 2d at 398. Later, this courtrecognized the abolition of the citizen-informant doctrine in People v. Ertl, 292 Ill. App. 3d 863(1997), when we wrote: "In establishing the reliability of the information source, the importance ofthe traditional classifications is now less significant than it once was." Ertl, 292 Ill. App. 3d at 869. We note that the majority rejected Justice Doyle's position in his special concurrence that the citizen-informant doctrine is viable in Illinois. Ertl, 292 Ill. App. 3d at 875-78 (Doyle, J., speciallyconcurring).

While the citizen-informant is no longer afforded a presumption of reliability, the citizen-informant has greater indicia of reliability than the typical criminal informant. Thompson, 341 Ill. App.3d at 851. Our supreme court abolished the bright-line classifications because there are many factorsthat must be considered when determining reliability. Ertl, 292 Ill. App. 3d at 870. A limited list of factors that add to the indicia of reliability includes whether the citizen-informant identified himself,offered to sign a complaint, and witnessed the alleged offense, or whether the information wasindependently corroborated. Others factors weigh against reliability, such as whether the informantwas paid for the information, did not witness the alleged offense, or failed to identify himself. SeeThompson, 341 Ill. App. 3d at 850-51; Ertl, 292 Ill. App. 3d at 863, 869-70.

The citizen-informant in this case had indicia of reliability even though the citizen-informantwas not identified by name. The indicia of reliability exist because the citizen-informant witnesseda crime by happenstance, reported the crime, did nothing to conceal his identity and, in fact, indicatedthat he would sign a complaint, and followed defendant's vehicle until the officer arrived, therebyexposing his identity. In light of these facts, the citizen-informant report had the indicia of reliability. But that is not the end of our inquiry regarding probable cause.

In addition to the informant's reliability, we must consider the level of detail he provides. SeeCity of Lake Forest v. Dugan, 206 Ill. App. 3d 552, 555-56 (1990). Relevant to our inquiry is Village of Gurnee v. Gross, 174 Ill. App. 3d 66 (1988), which, like this case, involved a complaintof reckless driving. There, a police officer was dispatched to investigate an anonymous complaintthat a blue Camaro with license number BMG697 was driving recklessly. The officer located avehicle matching this description, turned on his emergency lights, and asked the Camaro's driver, thedefendant, to pull over. The defendant looked at the officer but then drove through the intersection. The defendant eventually pulled over and was arrested for DUI. The trial court granted thedefendant's motion to quash his arrest and suppress evidence, holding that no evidence had beenpresented regarding the basis of the reckless driving complaint or the identity or reliability of thecomplainant. Gross, 174 Ill. App. 3d at 67-68. On appeal, we agreed that the reckless drivingcomplaint, along with the police officer's encounter of the described vehicle in the reported area, didnot justify an investigatory stop. However, we held that the stop was proper because the complaintwas coupled with the defendant's failure to pull over at the officer's initial request. Gross, 174 Ill.App. 3d at 69-70.

Here, as in Gross, the caller simply reported that defendant was "driving recklessly," withoutindicating what observations led him to this conclusion, e.g., whether defendant was speeding,running red lights, weaving between lanes, etc. This information did not provide the specificitynecessary to justify an investigatory stop. See Dugan, 206 Ill. App. 3d at 555-56 (anonymousinformant's complaint, that driver was intoxicated, did not justify investigatory stop because callerdid not mention specific facts that led to his conclusion and officer did not observe any behavior thatcorroborated claim).

After considering the totality of the circumstances in this case, we conclude that, although thecitizen-informant had indicia of reliability, because of the lack of detail provided, Officer Perduelacked reasonable suspicion at the time he instituted the investigatory stop. While the motorist-informant here had a greater degree of reliability than the completely anonymous informant in Gross,the additional reliability did not adequately compensate for either the lack of detail in his complaintor the absence of a police officer's observation of corroborating behavior. As stated in Ertl, 292 Ill.App. 3d at 875, "the forcible stop of a citizen cannot be legitimized by the simple expedient of oneofficer passing on a telephone informant's tip lacking the requisite degree of reliability, quality, factualsufficiency, and corroboration." Such is the case here, as the totality of information was simplyinsufficient to give Officer Perdue reasonable suspicion that defendant was guilty of a crime.

Based on our conclusion that Officer Perdue was not justified in conducting an investigatorystop, we affirm the order rescinding the summary suspension. We dismiss the Village's appeal of theorder of the circuit court of Lake County quashing defendant's arrest and suppressing the resultingevidence.

Affirmed in part and dismissed in part.

GROMETER and KAPALA, JJ., concur.