{ "id": 3540815, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIE SMITH, Defendant-Appellee", "name_abbreviation": "People v. Smith", "decision_date": "1987-01-14", "docket_number": "No. 2-85-0882", "first_page": "922", "last_page": "928", "citations": [ { "type": "official", "cite": "151 Ill. App. 3d 922" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "1 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5315035 ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0108-01" ] }, { "cite": "24 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2803449 ], "weight": 2, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0432-01" ] }, { "cite": "384 U.S. 757", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047531 ], "weight": 6, "pin_cites": [ { "page": "761" }, { "page": "914" }, { "page": "1830-31" } ], "opinion_index": 0, "case_paths": [ "/us/384/0757-01" ] }, { "cite": "468 U.S. 420", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338811 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/468/0420-01" ] }, { "cite": "54 Ill. 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Ed. 2d", "opinion_index": 0 }, { "cite": "440 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6370720, 6370976, 6372036, 6371142, 6370182, 6370409, 6369580, 6371308, 6371822, 6371568, 6370547, 6369814 ], "opinion_index": 0, "case_paths": [ "/us/440/0973-06", "/us/440/0973-07", "/us/440/0973-12", "/us/440/0973-08", "/us/440/0973-03", "/us/440/0973-04", "/us/440/0973-01", "/us/440/0973-09", "/us/440/0973-11", "/us/440/0973-10", "/us/440/0973-05", "/us/440/0973-02" ] }, { "cite": "60 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3354462 ], "year": 1979, "pin_cites": [ { "page": "54-55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0049-01" ] }, { "cite": "57 Ill. App. 3d 25", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3419395 ], "year": 1978, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0025-01" ] }, { "cite": "76 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3277491 ], "pin_cites": [ { "page": "946-47" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0945-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "116 Ill. App. 3d 164", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519678 ], "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0164-01" ] }, { "cite": "113 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625649 ], "year": 1983, "pin_cites": [ { "page": "370-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0367-01" ] }, { "cite": "106 Ill. App. 3d 645", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3035238 ], "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0645-01" ] }, { "cite": "17 Ill. App. 3d 1064", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2515810 ], "pin_cites": [ { "page": "1066-67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/1064-01" ] }, { "cite": "101 S. Ct. 1378", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "67 L. Ed. 2d 355", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "450 U.S. 925", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6253824, 6251680, 6255110, 6254406, 6252968, 6253294, 6252015, 6255472, 6252338, 6254771, 6252661, 6255742 ], "opinion_index": 0, "case_paths": [ "/us/450/0925-07", "/us/450/0925-01", "/us/450/0925-10", "/us/450/0925-08", "/us/450/0925-05", "/us/450/0925-06", "/us/450/0925-02", "/us/450/0925-11", "/us/450/0925-03", "/us/450/0925-09", "/us/450/0925-04", "/us/450/0925-12" ] }, { "cite": "81 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481175 ], "year": 1981, "pin_cites": [ { "page": "388-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0384-01" ] }, { "cite": "112 Ill. App. 3d 90", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5433820 ], "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0090-01" ] } ], "analysis": { "cardinality": 694, "char_count": 14118, "ocr_confidence": 0.763, "pagerank": { "raw": 8.788147539753724e-08, "percentile": 0.49598181206703557 }, "sha256": "4b0ff029e8963d9e09139b0ee6e3def8cb7395fc58843122d4232eaed6c44132", "simhash": "1:ab8a535d564d896f", "word_count": 2299 }, "last_updated": "2023-07-14T16:55:10.892091+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIE SMITH, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOODWARD\ndelivered the opinion of the court:\nThe State appeals from the trial court\u2019s order suppressing testimony and dismissing the case against defendant, Willie Smith. Smith was charged with driving an overweight vehicle. (Ill. Rev. Stat. 1985, ch. 95%, par. 15 \u2014 Ill.) The State contends on appeal that the trial court improperly suppressed certain testimony and erred in dismissing the charge against the defendant.\nThe relevant facts are as follows. On June 17, 1985, Trooper David C. Bird of the Illinois State Police observed the defendant driving a five-axle dump truck eastbound on Illinois 5, a public highway. Bird noticed that the truck\u2019s tires appeared squashed, the springs were overloaded, and the weight shifted to the rear of the truck. Bird stopped the truck and requested the defendant\u2019s weight ticket, which indicated that there was 19,000 pounds on the drive axle. Bird then ordered the defendant to drive to the nearest weighing station. After weighing the vehicle, Bird ordered defendant to assist him with measuring the truck\u2019s axle length by holding a tape measure. After the defendant complied, Bird issued defendant a traffic citation for the aforementioned violation.\nDefendant entered a plea of not guilty. The trial began on August 12, 1985, but the proceedings were not transcribed. A bystander\u2019s report has been provided. Testifying for the State at defendant\u2019s trial, Bird explained that defendant had assisted him with measuring the axle length. At that point, defense counsel moved to suppress further testimony. Defense counsel argued, and the trial court agreed, that Bird had not informed defendant of his constitutional rights prior to ordering him to hold the tape measure, and the act of measuring itself violated defendant\u2019s right not to be forced to participate in the gathering of physical evidence against him. The trial court suppressed further testimony from Bird and dismissed the charge against the defendant.\nThe State filed a motion to reconsider the trial court\u2019s ruling. After a hearing on the motion, the trial court reaffirmed its ruling, stating as follows:\n\u201cI feel that the way that this was presented, it didn\u2019t follow the statute. It just struck me as being an improper gathering of evidence and that\u2019s why I granted the motion to quash and maybe we didn\u2019t use the proper terminology and when I put the order in maybe I left some ambiguity in the order when I dismissed the case, but that was my \u2014 my feeling was that the case was improperly \u2014 the evidence was improperly gathered and that\u2019s why I thought that the motion would lie and the case would be dismissed.\u201d\nFrom this ruling, the State appeals.\nWe first must determine if the State may appeal from the trial court\u2019s ruling..The defendant argues that the State cannot appeal because the trial court\u2019s order dismissing the charge was, in effect, an acquittal. After a trial on the merits in a criminal case, the State may not appeal from a judgment of acquittal. (People v. Verstat (1983), 112 Ill. App. 3d 90, 96.) Although the trial court designated the judgment a \u201cdismissal,\u201d this designation is not determinative of the judgment\u2019s nature or appealability. (People v. Deems (1980), 81 Ill. 2d 384, 388-89, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.) An acquittal occurs when the trier of fact renders a finding of not guilty based upon the evidence before it. (People v. King (1974), 17 Ill. App. 3d 1064, 1066-67.) Defendant was discharged on grounds unrelated to his guilt. Such a dismissal of the charge is not a judgment of acquittal. (People v. Oswald (1982), 106 Ill. App. 3d 645, 647.)\nDefendant also argues that the State may not appeal from a ruling entered during trial. In a criminal case, the State may appeal only as permitted by Supreme Court Rule 604(a) (103 Ill. 2d. R. 604(a)). Supreme Court Rule 604 (a)(1) provides:\n\u201cIn criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 \u2014 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.\u201d (103 Ill. 2d R. 604(a)(1).)\nInitially, the issue before this court is whether the trial court\u2019s ruling here was, in fact, an order \u201csuppressing evidence\u201d under Rule 604(a)(1).\nDefendant argues that the trial court excluded Bird\u2019s testimony on an evidentiary basis. A mid-trial order excluding evidence on an evidentiary basis is not a suppression order, and the State may not seek an interlocutory appeal. (People v. Johnson (1983), 113 Ill. App. 3d 367, 370-71.) The court in People v. Davidson (1983), 116 Ill. App. 3d 164, 170, set forth the standard for distinguishing between the suppression and exclusion of evidence:\n\u201cThe rule which thus emerges from the cases is that a motion based on criteria relating to the perceived truthfulness, reliability, or relevance of the proffered evidence \u2018excludes\u2019 evidence ***; a motion which is based on public policies forbidding the use of certain evidence despite its relevance and apparent trustworthiness \u2018suppresses\u2019 evidence ***.\u201d\nBased upon this test, we conclude that the trial court\u2019s grant of defendant\u2019s motion suppressed evidence.\nBird\u2019s testimony regarding the length of the axle would have been relevant and reliable. The measurement is relevant because compliance with the statute is based on the proportion of the axle length to weight. Defendant contends that the measurement is unreliable because he lacks the expertise of a police officer in measuring. However, defendant was simply told where to stand; he made no decisions, nor did the measurement necessitate any special skill. Rather the trial court suppressed the testimony because it perceived the measurements were gathered improperly, since according to the judge, defendant\u2019s \u201cright to leave had been restrained and I think that the protections of self-incrimination, a right to counsel would attach at that time.\u201d\nFurther, Bird\u2019s testimony was suppressed not because of its unreliable nature but because the trial court considered it was gathered in violation of the defendant\u2019s rights. As further support, the bystander\u2019s report reveals that the defendant\u2019s grounds for suppression at trial included that the officer did not inform defendant of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, prior to ordering him to hold the tape. Defendant also alleged that the officer violated his right to not have to participate in the gathering of physical evidence against him. At the hearing on the motion to reconsider, defense counsel argued that \u201cwe\u2019re raising a real basic constitutional right of a person not to have to participate in his own criminal \u2014 gather evidence at a quasi-criminal action against him.\u201d Clearly, the evidence must be considered \u201csuppressed.\u201d Therefore, the State has the right to appeal pursuant to Supreme Court Rule 604(a)(1).\nThe State contends that under sections 114 \u2014 11(g) and 114 \u2014 12(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, pars. 114 \u2014 11(g), 114 \u2014 12(c)), the trial court erred in dismissing the charge against the defendant. Section 114 \u2014 11(g) reveals that if a trial court suppresses a confession as a result of a motion made during trial, the court shall terminate the proceedings unless the State files a written notice indicating that no interlocutory appeal will be filed. In People v. Hester (1979), 76 Ill. App. 3d 945, 946-47, the failure to terminate the trial and allow the State to file an interlocutory appeal pursuant to section 114 \u2014 11(g) constituted reversible error. However, because defendant\u2019s action of holding a tape measure does not amount to a confession, we conclude that section 114 \u2014 11(g) is inapplicable.\nNevertheless, the trial court was obliged to terminate the trial after granting defendant\u2019s motion to suppress the testimony, pursuant to section 114 \u2014 12(c) (Ill. Rev. Stat. 1985, ch. 38, par. 114\u2014 12(c)). Section 114 \u2014 12(c) pertains to illegally seized evidence but is otherwise identical to section 114 \u2014 12(g). The trial court perceived that defendant\u2019s assistance in measuring the axle length violated defendant\u2019s constitutional rights. The trial court vaguely indicated that the measurement was improperly gathered, and that the defendant had been denied notice of his rights. Under these circumstances, the trial court was required to terminate the trial, not dismiss the charges and allow an interlocutory appeal. (People v. Hoban (1978), 57 Ill. App. 3d 25, 28.) Such a termination of a trial does not bar a subsequent prosecution of the same charge. People v. Young (1978), 60 Ill. App. 3d 49, 54-55, cert. denied (1979), 440 U.S. 973, 59 L. Ed. 2d 790, 99 S. Ct. 1539.\nHaving determined that the trial court erred in dismissing the charge, we also conclude that it improperly suppressed Bird\u2019s testimony regarding the length of the truck\u2019s axle. In reviewing the trial court\u2019s ruling on the motion to suppress, we must affirm the result reached unless the trial court\u2019s ruling was \u201cmanifestly erroneous.\u201d People v. Smith (1977), 51 Ill. App. 3d 87, 90.\nDefendant has abandoned his stand at trial that he should have been given his Miranda warnings before being ordered to assist the officer measuring the truck. He instead argued at the hearing on the motion to reconsider and on appeal that the only issue is whether defendant\u2019s privilege against self-incrimination pursuant to the fifth amendment (U.S. Const., amend V) was violated. As the defendant was not even under arrest (see People v. Lumpp (1977), 54 Ill. App. 3d 235, 237), no right to counsel attached. Similarly, Miranda warnings were not required because a motorist who has been detained pursuant to a routine traffic stop is not considered to be \u201cin custody\u201d for purposes of Miranda. (Berkemer v. McCarty (1984), 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138.) Defendant has not suggested, and we have not found, any reason not to consider that the stopping of a vehicle to determine if it is overweight is anything other than a routine traffic stop.\nA finding that defendant\u2019s privilege against self-incrimination was violated is against the manifest weight of the evidence. The privilege against self-incrimination protects an accused only from being compelled to testify against himself or from otherwise providing the State with evidence of a testimonial or communicative nature. (Schmerber v. California (1966), 384 U.S. 757, 761, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, 1830-31.) Under Schmerber, defendant\u2019s act of holding a tape measure is not testimonial, and evidence resulting from such act should not have been suppressed. Defendant asserts that Schmerber\u2019s holding is limited to the facts in that case. The Supreme Court, however, cautioned that its holding that the Constitution does not forbid the State\u2019s minor intrusion into an individual\u2019s body in no way permits more substantial intrusions. Holding the tape measure cannot be reasonably construed as more intrusive than submitting to a blood test as in Schmerber. Therefore, the law in Schmerber applies in this case.\nDefendant also argues that Schmerber is distinguishable because it involves a defendant charged with driving under the influence and a motorist impliedly consents to the gathering of physical evidence in that situation or subjects himself to losing his driving privileges. The Supreme Court in Schmerber did not rely on an implied-consent theory. However, even if it did, section 15 \u2014 112 authorizes a police officer to require a driver to stop and submit to a weighing of the vehicle if the officer has reasons to believe the vehicle is overweight. (Ill. Rev. Stat. 1985, ch. 951/2, par. 15 \u2014 112.) In People v. Munziato (1962), 24 Ill. 2d 432, the court considered the constitutionality of section 132 of the Motor Vehicle Code, which is identical to the present section 15 \u2014 112(a). In holding that the statute was constitutional, the court explained:\n\u201cA provision authorizing reasonable investigation as a necessary means of implementing and effectuating a valid statute does not violate section 6 of article II of the Illinois constitution, relating to unlawful searches and seizures, or the fourteenth amendment to the Federal constitution. (Vissering Merchantile Co. v. Annunzio [(1953)], 1 Ill. 2d 108.) When a vehicle is driven onto the public highways of the State, its weight becomes a matter of public interest and, as we have mentioned, subject to regulation by the State. The investigation authorized by section 132 is limited to relevant inquiry as to the weight of the vehicle, it is essential to effectuate section 131, and it is therefore reasonable. [Citations.]\u201d People v. Munziato (1962), 24 Ill. 2d 432, 436.\nRelevant inquiry into the length of the vehicle\u2019s axle is necessary to effect section 15 \u2014 111.\nDefendant argues that Schmerber\u2019s holding is limited to physical acts necessary to identify defendants. Defendant\u2019s argument is without merit. Blood samples collected from the defendant in Schmerber served as evidence of the alcohol level in his blood, evidence of the crime. The defendant\u2019s identity was not at issue, yet the court in Schmerber held that the act was not protected by the privilege against self-incrimination. Schmerber v. California (1966), 384 U.S. 757,16 L. Ed. 2d 908, 86 S. Ct. 1826.\nFor the foregoing reasons, the dismissal of the charge against defendant is vacated, the order suppressing evidence is reversed, and the cause is remanded for a new trial.\nReversed and remanded.\nLINDBERG, P.J., andINGLIS, J., concur.", "type": "majority", "author": "JUSTICE WOODWARD" } ], "attorneys": [ "Robert J. Morrow, State\u2019s Attorney, of Geneva (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Bruce K. David, of Elgin, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIE SMITH, Defendant-Appellee.\nSecond District\nNo. 2-85-0882\nOpinion filed January 14, 1987.\nRobert J. Morrow, State\u2019s Attorney, of Geneva (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nBruce K. David, of Elgin, for appellee." }, "file_name": "0922-01", "first_page_order": 944, "last_page_order": 950 }