People v. Bianca, 2017 IL App (2d) 160608 (September). Episode 401 (Duration 6:26)

In this DUI the officer jumps right into FSTs before corroborating the unamous tip.

Anonymous Tip

LaBarbera testified that he was performing a traffic stop when a citizen drove by and reported seeing a car driving “recklessly and all over the road” and that she had seen the vehicle park behind K&L Liquors.

The citizen described the vehicle as a black SUV with a manufacturer’s marking that looked like an “upsidedown V.”

The citizen did not give LaBarbera a description of the license plate or the car’s exact make or model and could not describe anything about the driver other than that she was a white female with blonde hair.

The citizen did not elaborate on what she meant by “driving recklessly and all over the road,” and she did not explain how long the driver had done so.

The citizen then drove off and LaBarbera did not ask her to wait so he could obtain more information.

State Concedes

Further, the the informant’s tip was truly unanimous and required corroboration that did not exist. It was not sufficiently reliable to provide LaBarbera with reasonable suspicion for the investigatory stop.

“Stay In That Spot”

He then saw defendant leave the store and enter the car. LaBarbera left the traffic stop, parking his marked squad car next to defendant’s car.

Defendant testified that LaBarbera parked his marked squad car behind her car, blocking her from leaving, and then got out of his car. He was in full uniform. He came up to her window to speak to her.

LaBarbera testified that he could not recall “for sure,” but he did not think he “even got out of [his] car.”

LaBarbera asked defendant to “stay in that spot” so he could speak with her after he “cleared” his other traffic stop.

He testified that he did not “command” defendant to stay but rather “requested” her to do so. Defendant testified that the officer asked her to stay. Although the officer asked her to stay, defendant believed she was required to stay and would not have left.

LaBarbera agreed that defendant “followed his instructions” and waited for him to return.

Now Just A Traffic Stop

When LaBarbera returned to defendant’s car, he asked for her driver’s license and proof of insurance.

Eventually, he had defendant step out of the car to perform field sobriety tests. Following the field sobriety tests, LaBarbera arrested defendant.

He brought her to the station, where she submitted to a Breathalyzer.

LaBarbera never observed defendant driving the vehicle, but he testified that defendant’s arrest was not based solely on the anonymous tip he had received from the citizen.

Police-Citizen Encounters

There are three tiers of police-citizen encounters:

(1) an arrest of a citizen, which must be supported by probable cause;
(2) a temporary investigatory seizure conducted pursuant to Terry v. Ohio, 392 U.S. 1 (1968), where an officer may conduct a brief, investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of criminal activity and such suspicion amounts to more than a mere “hunch”; and
(3) police-citizen encounters that are consensual, which involve no coercion or detention and do not implicate any fourth amendment interests.

State Says Consensual

The State has argued consistently both before the trial court and now on appeal that the evidence shows that the encounter between defendant and LaBarbera was consensual because the officer merely asked her to remain while he completed the unrelated traffic stop and she agreed to that request.

Both LaBarbera and defendant testified that LaBarbera asked defendant to stay.

Therefore, the trial court’s finding that the officer commanded defendant to stay is against the manifest weight of the evidence. An individual is seized for fourth amendment purposes only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Such restraint is analyzed under the totality of the circumstances and is considered a seizure when a reasonable person would believe he or she was not free to leave.

Mendenhall Factors

There are four Mendenhall factors that indicate a seizure:

(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person; or
(4) using language or tone of voice compelling the individual to comply with the officer’s requests.

The factors are not exhaustive.

What About FSTs?

However, there is ample authority to support a holding that submission to field sobriety testing in a DUI arrest is a seizure under the fourth amendment.

In this case, the evidence shows that defendant’s acceding to the officer’s direction was not consensual. Defendant testified that LaBarbera told her to exit the car and had her perform field sobriety tests.

Also, LaBarbera admitted that, upon his return, he asked defendant for her driver’s license and proof of insurance and he had her exit the car for field sobriety testing.

There is no evidence to support an argument that defendant’s performance of the tests was consensual.

State  Concedes No Reasonable Articulable Suspicion

If the defendant makes a prima facie showing that she was doing nothing unusual to justify her seizure by the police, the burden of going forward then shifts to the State.

After defendant testified, the trial court shifted the burden to the State, but the State does not argue on appeal that this was improper. As previously noted, the State also does not argue that LaBarbera had a reasonable, articulable suspicion to direct defendant to perform the field sobriety tests.

Holding

At the point where defendant submitted to the direction to exit the car to perform field sobriety tests, there was a seizure unsupported by a reasonable, articulable suspicion.

Therefore, the trial court did not err in granting the motion to suppress.