{ "id": 5120826, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MELVIN A. SHEPHERD, Defendant-Appellee", "name_abbreviation": "People v. Shepherd", "decision_date": "1993-03-11", "docket_number": "No. 4-92-0559", "first_page": "24", "last_page": "32", "citations": [ { "type": "official", "cite": "242 Ill. App. 3d 24" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "562 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 782", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2574245 ], "pin_cites": [ { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0782-01" ] }, { "cite": "599 N.E.2d 1033", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1036" } ], "opinion_index": 0 }, { "cite": "233 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5196941 ], "pin_cites": [ { "page": "1010" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/1005-01" ] }, { "cite": "827 S.W.2d 937", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9989470 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "943-44" }, { "page": "943-44" } ], "opinion_index": 0, "case_paths": [ "/sw2d/827/0937-01" ] }, { "cite": "596 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1211-12" }, { "page": "1211-12" } ], "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 813", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5204352 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "823-25" }, { "page": "823-25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0813-01" ] }, { "cite": "367 N.E.2d 1244", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1248" } ], "opinion_index": 0 }, { "cite": "67 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812072 ], "pin_cites": [ { "page": "457-59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0449-01" ] }, { "cite": "568 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 1064", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2541421 ], "pin_cites": [ { "page": "1069" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/1064-01" ] }, { "cite": "581 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "144 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592090 ], "pin_cites": [ { "page": "408-09" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0404-01" ] }, { "cite": "565 N.E.2d 1349", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1353" } ], "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 461", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553951 ], "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0461-01" ] }, { "cite": "554 N.E.2d 216", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "220" } ], "opinion_index": 0 }, { "cite": "136 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3254905 ], "year": 1991, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0116-01" ] } ], "analysis": { "cardinality": 848, "char_count": 17275, "ocr_confidence": 0.779, "pagerank": { "raw": 1.0036877086665643e-07, "percentile": 0.5396220011282511 }, "sha256": "682394a512c5a6674c09bdd11d07da1981500301e79b5c3fdcf7fae9e4c12e3d", "simhash": "1:e7b5f4e3fe03b5ac", "word_count": 2822 }, "last_updated": "2023-07-14T16:35:07.830210+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. MELVIN A. SHEPHERD, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn April 1992, the State charged defendant, Melvin A. Shepherd, with driving while under the influence of alcohol (DUI) (111. Rev. Stat. 1991, ch. 951/2, par. 11 \u2014 501) and improper lane usage (111. Rev. Stat. 1991, ch. 951/2, par. 11 \u2014 709). Prior to trial, defendant moved to suppress evidence obtained when the police stopped defendant\u2019s truck. In June 1992, the trial court granted defendant\u2019s motion, and the State appeals.\nWe reverse.\nI. Background\nSergeant Timothy Henson of the Dwight police department was the only witness to testify at the hearing on defendant\u2019s motion to suppress. He said that in the early morning hours of April 25, 1992, he and Officer Dolan of the Dwight police department received a call about some unruly men at the Dwight Auto Truck Plaza. Henson and Dolan went there and spoke with Wanda Jacobs, a waitress at the truck stop who had called the police. She told them that one of the unruly men had left, while the other (defendant) remained in a booth in the restaurant.\nJacobs told Henson that she had approached defendant to ask him if he wanted a refill of coffee. Defendant responded that he did not want a cup of coffee, but he did want a \u201cblow job.\u201d Defendant also started calling another waitress, \u201cHey, blondie; hey, blondie.\u201d Jacobs added that defendant and the other man did not threaten or touch anyone; they just behaved obnoxiously. When she had the dishwasher at the restaurant ask them to leave, the other man left, but defendant stayed. Jacobs then called the police.\nAs Jacobs spoke with Henson, defendant went to pay his check. Because defendant was leaving, Henson decided to have no contact with defendant at that point. Instead, Henson left the restaurant and parked nearby on the southbound entrance ramp to U.S. Route 66 in case any further problems arose.\nHenson saw defendant leave the restaurant, get in and out of his pickup truck, reenter the restaurant, and reemerge a few minutes later with another man. They got into his truck, and defendant drove east on Route 17, which soon thereafter intersects U.S. Route 66.\nJust before passing the southbound Route 66 entrance ramp on which Henson was parked, defendant made a quick, wide left turn onto the entrance ramp without signalling. Henson thought that defendant likely had almost passed the entrance ramp when he realized he wanted to turn there. After defendant drove past Henson\u2019s squad car on the entrance ramp, Henson followed him. Defendant stopped at the stop sign before entering Route 66, and then drove south on Route 66.\nIn that area, Route 66 has four lanes: two in each direction, separated by a median. As defendant drove south in the right lane on Route 66, Henson saw defendant\u2019s truck weave, crossing the white centerline and returning to the right lane three times: twice with just both left wheels, and the third time with one-third of the truck. A few hundred yards after defendant weaved for the third time, Henson activated the lights on his squad car and pulled over defendant\u2019s truck.\nWhen Henson walked up to defendant\u2019s truck, Henson noticed the strong smell of alcoholic beverages emanating from the truck\u2019s passenger compartment. In addition, when he asked defendant for his driver\u2019s license and insurance card, Henson noticed the strong smell of alcoholic beverage on defendant\u2019s breath. Henson thus asked defendant and the passenger to get out of the truck and walk to the rear of the truck. Henson noticed that defendant stumbled and used the truck to regain his balance along the way.\nAfter noticing defendant\u2019s bloodshot eyes, Henson asked defendant to perform some field sobriety tests. Although defendant passed the first two tests, he could not pass the third test \u2014 the one-leg stand \u2014 despite several efforts to pass it. Henson then arrested defendant for DUI and issued him a citation.\nAfter Henson testified, defendant\u2019s counsel argued in support of his motion that \u201cthe stop was a subterfuge. It was completely pre-textual. Absolutely ridiculous.\u201d He also argued that Henson \u201claid [in wait] for [defendant]. He waited for them to get into the vehicle, and he wants to make DUI cases.\u201d In response, the prosecutor argued that Henson\u2019s observations of defendant\u2019s driving justified the stop.\nIn its ruling on defendant\u2019s motion, the trial court first noted that once Henson had stopped defendant, \u201cthere was enough evidence to indicate that the [defendant was probably intoxicated.\u201d However, the court stated that it regarded \u201cwhether [Henson] could stop the [truck] to begin with\u201d as a very close question. The court then made the following comments:\n\u201cShort of probable cause, *** the only allowable justification [for stopping the truck] would be some sort of Terry-type stop, reasonable suspicion that crime was afoot.\nNow, here there\u2019s not probable cause. The reason *** for stopping the car wasn\u2019t because [he] failed to show a turn signal. The reason wasn\u2019t because he committed improper lane usage. ***\nHere, the reason [for stopping the vehicle] was [the] obnoxious behavior back at the restaurant, turning wide with no turn signal at an intersection^] [a]nd once out on [Route] 66, *** having passed gently over the centerline three times and back[.] [I]n a normal case I would think this [evidence] would be enough under Terry to stop. I think an officer, given the time of day here, early morning hours, seeing peculiar driving, I think an officer would have a right and maybe even a duty to stop that vehicle and find out[: T]s the guy drunk, is the guy asleep, is there something wrong, or is he just a lousy driver.[\u2019]\nHere[,] though, he had to know all that because he had just been with the fellow at the restaurant. So he [must have already known] whether the person was drunk or not; and if he was drunk, he wouldn\u2019t have let him get in the car. He would have had to assume[, \u2018]we didn\u2019t have a fellow falling asleep here.[\u2019] ***\nI guess the way I look at it, maybe I\u2019m looking at it wrong, [but] it can\u2019t be a Terry stop to find out what was going on because the officer knew what was going on. He just talked to the guy.\nSo here I don\u2019t think it can be reasonable suspicion that crime is afoot here because he knew all about the fellow having just been with him or talked to him briefly, [and] seen him there at [the] restaurant.\nSo here *** all I can look at is[:] is there probable cause to stop the guy for committing some offense? Well, it wasn\u2019t for [failing to use his] turn signal because that incident had passed. So here I guess I can\u2019t justify *** this stop.\u201d (Emphasis added.)\nII. Analysis\nWhen reviewing a trial court\u2019s findings of fact on a suppression motion, an appellate court will not reverse unless those findings are manifestly erroneous. (People v. Brown (1990), 136 Ill. 2d 116, 125, 554 N.E.2d 216, 220; People v. Gorman (1991), 207 Ill. App. 3d 461, 468, 565 N.E.2d 1349, 1353.) However, when neither the facts nor the credibility of the witnesses is contested, and an appellate court instead reviews only the trial court\u2019s legal conclusions on a suppression motion, the appellate court need not afford the trial court\u2019s decision deference and may instead review that decision de novo. In re D.G. (1991), 144 Ill. 2d 404, 408-09, 581 N.E.2d 648, 649.\nInitially, we question the trial court\u2019s factual finding that Henson must have known whether defendant was drunk because Henson talked briefly to defendant at the restaurant. Henson, the only witness to testify at the suppression hearing, did not say that he spoke to or even approached defendant at the restaurant. The court did not indicate that it did not believe Henson\u2019s testimony; instead, it apparently did not correctly remember that testimony. Because Henson\u2019s testimony shows that he never spoke to or interacted with defendant at the restaurant, the court had no basis to conclude that Henson knew if defendant was drunk before defendant left the restaurant.\nHowever, we need not definitively determine whether this factual finding rises to the level of manifest error because \u2014 pursuant to our de novo review on matters of law \u2014 we hold that the trial court\u2019s legal conclusions were incorrect regardless of how the above factual issue would be resolved. Even if Henson had known that defendant was drunk at the restaurant, this knowledge would have had nothing to do with the constitutionality of the traffic stop of defendant that Henson later made.\nHenson testified that he observed defendant commit at least one (and perhaps several) minor traffic violations, and the trial court expressed no disbelief regarding that testimony (and we add that we see no reason why it should have). At a minimum, Henson saw defendant turn left without signalling, thereby violating section 11 \u2014 804(b) of the Illinois Vehicle Code (111. Rev. Stat. 1991, ch. 95V2, par. 11 \u2014 804(b)). That observation, without more, sufficed to provide Henson with probable cause to stop defendant\u2019s car. People v. Sorrells (1991), 209 Ill. App. 3d 1064,1069, 568 N.E.2d 497, 500.\nWe also emphasize that the delay between his witnessing this traffic violation and his pulling defendant over in no way vitiates the probable cause Henson possessed. The delay merely shows that Henson legitimately used discretion in not stopping defendant at Henson\u2019s first opportunity to do so. Section 107 \u2014 2(lXc) of the Code of Criminal Procedure of 1963 (Code) provides that a peace officer may arrest a person when he has reasonable grounds to believe that the person is committing or has committed an offense. (111. Rev. Stat. 1991, ch. 38, par. 107 \u2014 2(lXc).) Thus, when a peace officer has reasonable grounds to believe a person has committed a crime, this section clearly gives that officer discretion to arrest that person immediately, later, or perhaps never.\nCertainly, this discretion does not expire within a few minutes of witnessing the offense occur. Indeed, Professor LaFave has noted that delay affects only probable cause to search, not probable cause to arrest:\n\u201cThe most obvious difference between probable cause to arrest and probable cause to search is that the former is concerned with historical facts while the latter is concerned with facts relating to a presently existing condition. If a police officer is summoned to a crime scene and is told by the victim and several witnesses that an armed robbery has occurred and that a particular person known to them by name committed it, there then exists probable cause to arrest that person. Assuming no contrary facts later come to light, this probable cause will continue to exist for an indefinite period.\u201d (2 W. LaFave, Search & Seizure \u00a73.7(a), at 75 (2d ed. 1987).)\nIn addition, our supreme court has held that pre-arrest delay raises no constitutional concerns unless the defendant can clearly show that the delay caused actual and substantial prejudice to defendant\u2019s ability to present a defense. See People v. Lawson (1977), 67 Ill. 2d 449, 457-59, 367 N.E.2d 1244, 1248 (no prejudice proved in mere self-serving assertions that delay caused problems in reconstructing the events at issue).\nIn the present case, Henson\u2019s election not to immediately pull defendant over had no impact on the constitutionality of his pulling defendant over a few minutes later. Accordingly, we hold that Officer Henson\u2019s probable cause to stop defendant for failing to signal before turning did not expire (nor even diminish) when he chose not to immediately stop defendant.\nDefendant argues that Henson\u2019s stop for minor traffic violations constituted a mere \u201cpretext\u201d for investigating other, unrelated criminal activity. Indeed, the trial court\u2019s reference to the delay between Henson\u2019s witnessing defendant commit the traffic violation and Henson\u2019s eventual stop suggests that the court might have bought defendant\u2019s \u201cmere pretext\u201d argument.\nHowever, this court has emphatically rejected the \u201cpretextual\u201d stop analysis on which defendant relies. (See People v. Flores (1992), 231 Ill. App. 3d 813, 823-25, 596 N.E.2d 1204, 1211-12, quoting Garcia v. Texas (Tex. Crim. App. 1992), 827 S.W.2d 937, 943-44.) When reviewing whether probable cause or reasonable suspicion to stop existed, a court should only evaluate whether specific, articulable facts support the stop, not whether the police officer held some other furtive or pretextual reason for the stop. See People v. Williams (1992), 233 Ill. App. 3d 1005, 1010, 599 N.E.2d 1033, 1036 (\u201cpermissible for police officers to arrest a suspect on a minor offense and conduct questioning on a more serious offensejj] and the arrest will not be deemed pretextual as long as the arrest on the minor offense is valid\u201d); People v. Perry (1990), 204 Ill. App. 3d 782, 786, 562 N.E.2d 618, 621 (constitutionality of stop depends on \u201cwhether the stop is objectively reasonable, and, if so, it is not invalidated solely because the officer acted out of an improper or dual motivation\u201d).\nThe trial court\u2019s pretextual analysis suggests that an officer may not stop someone for a traffic offense \u2014 for which he does not normally stop someone \u2014 merely because that officer has information that leads him to believe that the person stopped may be involved in more serious criminal activity. We disagree. This analysis adds only irrelevant clutter when the court assesses whether the police had probable cause to make the arrest at issue. Further, this analysis would shift the court\u2019s attention to the difficult task of trying to determine \u2014 as defendant here argues \u2014 the \u201cfurtive state of mind\u201d of the police officers involved. (See Flores, 231 Ill. App. 3d at 823-25, 596 N.E.2d at 1211-12, quoting Garcia, 827 S.W.2d at 943-44.) Last, this analysis amounts to attempted judicial micromanagement (in hindsight, of course) of what may well be the prudent exercise of police discretion, as demonstrated in this case.\nAfter defendant left the restaurant, Henson saw him take a quick, wide turn without signalling. Henson described it as if defendant realized that he had almost passed where he wanted to turn and then made the turn just in time. Because an innocent explanation could be given for defendant\u2019s erratic turn, Henson, apparently using his discretion, decided to not stop defendant at that time. Nonetheless, Henson decided to follow defendant to see if anything else would occur to warrant stopping defendant to further investigate. If nothing occurred, the innocent explanation for the wide turn likely would have sufficed, and, as we earlier noted, section 107 \u2014 2(lXc) of the Code did not require Henson to stop defendant for the minor traffic violations that Henson saw defendant commit.\nAs Henson followed, defendant then weaved twice, but not severely. Only when defendant weaved a third time \u2014 this time crossing the white centerline with a third of his car \u2014 did Henson immediately pull defendant over. In his judgment \u2014 and it was his judgment call to make \u2014 only then did defendant exhibit enough erratic driving to warrant further investigation.\nCompletely contrary to defendant\u2019s pretextual argument, the record reveals that Henson gave defendant considerable leeway by not intervening at the restaurant, not pulling defendant over for making an erratic turn and failing to signal, and not pulling defendant over immediately for weaving twice into another lane. Only when the cumulative effect of defendant\u2019s driving caused Henson to suspect that defendant might be drunk did Henson choose to effectuate the probable cause he already possessed to pull defendant over for the minor traffic violations Henson saw defendant commit.\nOn this same point, we note that defense counsel at the suppression hearing asked the trial court \u201cto take judicial notice of the remarkable lack of *** tickets [other than the DUI charge that Henson wrote.]\u201d (We add that the prosecutor, not Henson, later added the improper lane usage charge.) Apparently, by his remarks, defense counsel was attempting to impeach Henson\u2019s testimony by showing that if he had really been serious about stopping defendant for various minor traffic violations, Henson would have ticketed defendant for those violations, in addition to the DUI charge. We find this argument singularly unpersuasive. Police officers and prosecutors frequently (and appropriately) abandon minor charges which were the justification for an initial stop of a suspect when that stop reveals, as in this case, evidence to charge the suspect with a more serious offense. To hold otherwise Would provide an incentive, if not a mandate, for police and prosecutors to unnecessarily clutter our already crowded court dockets.\nIII. Conclusion\nFor the reasons stated, we reverse the trial court\u2019s order granting defendant\u2019s motion to suppress, and we remand for further proceedings.\nReversed and remanded.\nMcCULLOUGH and KNECHT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" } ], "attorneys": [ "Thomas J. Brown, State\u2019s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Carey J. Luckman, of Pontiac, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MELVIN A. SHEPHERD, Defendant-Appellee.\nFourth District\nNo. 4\u2014 92\u20140559\nOpinion filed March 11, 1993.\nThomas J. Brown, State\u2019s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nCarey J. Luckman, of Pontiac, for appellee." }, "file_name": "0024-01", "first_page_order": 42, "last_page_order": 50 }