People v. Greco

783 N.E.2d 201

336 Ill. App.3d 253

270 Ill.Dec. 626

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher J. GRECO, Defendant-Appellant.

No. 2-01-0550.

Appellate Court of Illinois, Second District.

January 17, 2003.

G. Joseph Weller, Deputy Defender, and Barbara R. Paschen (Court-appointed), Office of the State Appellate Defender, Elgin, for Christopher J. Greco.

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, Lawrence M. Bauer, State's Attorneys Appellate Prosecutor, Elgin, Martha M. Gillis, Evanston, for the People.

Justice O'MALLEY delivered the opinion of the court:

After a bench trial on stipulated evidence, defendant, Christopher J. Greco, was found guilty of driving while cannabis was present in his blood or urine (625 ILCS 5/11-501(a)(6) (West 2000)), the unlawful possession of cannabis (720 ILCS 550/4(a) (West 2000)), and criminal damage to property (720 ILCS 5/21-1(1)(a) (West 2000)). The trial court sentenced defendant to concurrent two-year terms of supervision and ordered defendant to pay restitution not to exceed $300. On appeal, defendant argues that the trial court erred in (1) denying his motion to quash arrest and suppress evidence and (2) failing to set a definite amount of restitution. We affirm.

Defendant was the only witness called during the suppression hearing. He testified that at about 12:40 a.m. on October 23, 2000, he was driving on Waxwing Street, a two-lane highway. He noticed a police car following him. Its emergency lights were not activated. At some point, the officer activated the lights, and defendant pulled over. The officer arrested defendant, searched defendant and his vehicle, and removed items from the vehicle. At the time of the traffic stop, defendant was not violating any traffic laws, and to defendant's knowledge there were no outstanding warrants for his arrest.

During cross-examination, defendant admitted that, while the officer was following him, his vehicle swerved two or three times from the center of the road towards the curb. The officer stopped defendant and talked to him about his driving. Defendant denied that he told the officer he swerved because he was attempting to fasten his seat belt. Defendant admitted that he swerved because he was under the influence of cannabis.

The State moved for a directed finding. Relying on People v. Manders, 317 Ill. App.3d 337, 251 Ill.Dec. 234, 740 N.E.2d 64 (2000), defendant argued that a vehicle weaving within its own lane is not subject to being stopped. Reasoning that there is a difference between weaving and swerving, Judge Culliton granted the State a directed finding and denied defendant's motion. Defendant filed a motion to reconsider, which Judge Culliton denied.

On May 3, 2001, defendant agreed to a bench trial on stipulated evidence. According to the stipulations, Officer Schubrych of the Naperville police department saw defendant's vehicle turn around at the end of Tupelo Street. Schubrych followed the vehicle. While southbound on Modaff Street, the vehicle began weaving back and forth. Schubrych stopped the vehicle after it turned onto Waxwing Street.

Schubrych told defendant why he stopped him. Defendant claimed that he was swerving because he was attempting to fasten his seat belt. Schubrych detected an odor of cannabis emanating from defendant and noticed that defendant's eyes were bloodshot and glassy. Schubrych asked defendant where he had been, and defendant responded that he came from a friend's house on Tupelo Street. Schubrych asked defendant if he had been smoking cannabis, and defendant replied that he had smoked cannabis about 30 minutes earlier. Defendant's speech was slowed and slurred. Defendant failed all field sobriety tests except for the alphabet test.

Schubrych arrested defendant. He searched defendant and found two burned "roaches" containing a green leafy substance and a mirror with white residue on it. Laboratory reports revealed that the green substance weighed .2 grams and was cannabis.

Defendant was brought to the police department and later to a hospital, where he gave blood and urine samples. Laboratory reports revealed that defendant had tetrahydrocannabinol (THC) in his system. Defendant was brought back to the police department. While in his cell, defendant was allowed to make a telephone call to arrange for bond. Defendant slammed the telephone receiver against a tray on the cell door and thereby rendered the telephone inoperable.

Judge Torluemke found defendant guilty. During the sentencing phase of the hearing, the State requested that on the criminal damage to property conviction defendant be ordered to pay "[restitution not to exceed $300 payable to the State's Attorney's Office within 60 days of demand." There was no other discussion about restitution. The sentencing order stated, "[r]estitution reserved not to exceed $300[.][P]ay through SAO within 60 days of demand."

Arguing that the trial court erred in denying his motion to suppress, defendant moved for a new trial. The trial court denied the motion. Defendant appealed on May 17, 2001.

Defendant's first contention on appeal is that the trial court erred in denying his motion to suppress. When reviewing a trial court's ruling on a motion to suppress evidence, we accord great deference to the trial court's factual findings and will reverse them only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill.2d 425, 431, 256 Ill.Dec. 836, 752 N.E.2d 1078 (2001). We review de novo the ultimate question of defendant's legal challenge to the denial of his motion. Sorenson, 196 Ill.2d at 431, 256 Ill.Dec. 836, 752 N.E.2d 1078. Defendant was the only witness during the suppression hearing, and the facts essentially are undisputed. Therefore, we review de novo the trial court's legal conclusion that the traffic stop was proper.

An officer may make a valid, investigatory stop without probable cause to arrest when there is a reasonable suspicion of criminal activity. People v. Juarbe, 318 Ill.App.3d 1040, 1049, 252 Ill.Dec. 739, 743 N.E.2d 607 (2001). A traffic stop requires a reasonable suspicion that the vehicle or an occupant is subject to seizure for a violation of the law. People v. Rush, 319 Ill.App.3d 34, 39, 253 Ill.Dec. 383, 745 N.E.2d 157 (2001). The stop must be based on more than a mere hunch. People v. Welling, 324 Ill.App.3d 594, 600, 258 Ill.Dec. 230, 755 N.E.2d 1049 (2001). Generally, an officer's observation of a traffic violation or erratic driving provides a sufficient basis for a traffic stop. People v. Brodack, 296 Ill.App.3d 71, 74, 230 Ill.Dec. 540, 693 N.E.2d 1291 (1998); People v. Perez, 288 Ill.App.3d 1037, 1043, 224 Ill. Dec. 191, 681 N.E.2d 173 (1997).

Defendant argues that Manders controls here. In Manders, the arresting officer testified that he saw the defendant's car weave back and forth within its own lane. He estimated that, when it weaved, the car came within three to six inches of the center line and the "fog line" on the right side of the lane. This court held that there was no valid basis for the traffic stop. First, the court reasoned that section 11-709(a) of the Illinois Vehicle Code (625 ILCS 5/11-709(a) (West 2000)) recognizes that a vehicle cannot be driven in a perfectly straight line. Manders, 317 Ill. App.3d at 341, 251 Ill.Dec. 234, 740 N.E.2d 64. Section 11-709(a) states that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane." 625 ILCS 5/11-709(a) (West 2000).

Also, the court noted that "weaving" has been defined as "`the action of a vehicle that alternately diverges from and merges into traffic flows moving in the same direction, shifting from one lane to another, and repeatedly crossing the paths of other vehicles.' (Emphasis added.)" Manders, 317 Ill.App.3d at 341, 251 Ill.Dec. 234, 740 N.E.2d 64, quoting Webster's Third New International Dictionary 2591 (1986). Considering the definition, the court concluded that the movement of the defendant's car could not be termed "weaving" and could not be the basis for a valid investigatory stop. Manders, 317 Ill. App.3d at 341, 251 Ill.Dec. 234, 740 N.E.2d 64.

We decline to follow Manders because it is contrary to the weight of authority. The well-accepted rule in this state is that erratic driving, including weaving within a single lane, is sufficient to justify a traffic stop. People v. Albright, 251 Ill.App.3d 341, 343, 190 Ill.Dec. 650, 622 N.E.2d 60 (1993); People v. Diaz, 247 Ill.App.3d 625, 627-28, 187 Ill.Dec. 391, 617 N.E.2d 848 (1993); People v. Faletti, 215 Ill.App.3d 61, 64, 158 Ill.Dec. 54, 573 N.E.2d 867 (1991); People v. Decker, 181 Ill.App.3d 427, 430, 130 Ill.Dec. 319, 537 N.E.2d 386 (1989); People v. Loucks, 135 Ill.App.3d 530, 532-33, 90 Ill.Dec. 286, 481 N.E.2d 1086 (1985); People v. Houldridge, 117 Ill.App.3d 1059, 1062, 73 Ill.Dec. 672, 454 N.E.2d 769 (1983).

The majority opinion in Manders does not acknowledge either the well-settled rule or this court's decision in Diaz. In Diaz, the officer observed the defendant's vehicle "`swerving all over the curb side roadway.'" Diaz, 247 Ill.App.3d at 626, 187 Ill.Dec. 391, 617 N.E.2d 848. This court held that, regardless of whether the vehicle crossed the white line or stayed within the same lane, the officer's observation of the defendant's erratic driving provided a sufficient basis for the stop. Diaz, 247 Ill.App.3d at 627-28, 187 Ill.Dec. 391, 617 N.E.2d 848.

The general rule recognizes that a vehicle may be driven erratically even though it remains within the same lane. Manders effectively insulates such conduct and unduly hampers effective law enforcement. Our research reveals a general consensus that weaving within a single lane may be a basis for a valid traffic stop. See State v. Superior Court, 149 Ariz. 269, 273, 718 P.2d 171, 175 (1986); People v. Bracken, 83 Cal.App. 4th Supp. 1, 4, 99 Cal.Rptr.2d 481, 483 (2000)...