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People v. Smith1/30/2004
UNPUBLISHED
Defendant, Travis Smith, was charged by indictment with aggravated unlawful use of a weapon (720 ILCS 5/24--1.6(a)(1), (a)(3)(C) (West 2000)). Defendant moved to quash his arrest and suppress the handgun that was seized from his sleeve, contending that he did not give valid consent for the search of his person. The trial court granted the motion, and the State appeals. We reverse.
I. FACTS
The following evidence was presented at the suppression hearing. Kevin Driscoll testified that he has been a Naperville police officer for 18 years. At approximately 3:30 a.m. on February 24, 2002, he followed a vehicle onto Interstate 88 (I-88) from Naper Boulevard. When Driscoll stopped following that vehicle, he commenced a U-turn on I-88 in order to head back into the city. Immediately prior to making the U-turn, Driscoll observed a westbound vehicle pass at a very high rate of speed. Driscoll eventually stopped the westbound vehicle for speeding and failing to signal lane changes. The westbound vehicle was a 20-year-old Chevrolet Malibu with four occupants. Driscoll testified that the traffic stop occurred on I-88 approximately one mile west of Route 59. At that location, I-88 is a tollway with three lanes of traffic in each direction and a 55-mile-per-hour speed limit. Access to the tollway is restricted by a chain-link fence that runs parallel to the roadway. There are no businesses in the vicinity. Driscoll had the driver exit the vehicle, gave him field sobriety tests, and thereafter arrested him for driving under the influence of alcohol (DUI). After placing the driver into custody, Driscoll had the three passengers step out of the vehicle and identify themselves. They were defendant and two brothers, Willie and Edmond Reese. Officer Schnizlein arrived at the scene of the traffic stop to help Driscoll search the vehicle.
Officer Driscoll engaged the three passengers in a conversation as to what they were going to do next. Driscoll said that the purpose of the conversation was to determine if one of the three men could drive the vehicle from the scene. Driscoll gave a preliminary breath test (PBT) to defendant and to one of the Reese brothers. Driscoll explained that the other Reese brother admitted that his driver's license was suspended. The PBTs indicated that both men were unfit to drive. Driscoll explained that he used the PBT on defendant and the Reese brother with the valid driver's license because the men told him that they were sober enough to drive, yet Driscoll opined that they were not acting sober. Driscoll said that the Reese brother with the suspended driver's license was the only passenger who showed signs of being sober. After determining that none of the three passengers could drive the vehicle from the scene, Driscoll informed the men that the vehicle was going to be towed and offered them a courtesy ride to the police station where they could make telephone calls to arrange for transportation.
Driscoll also testified that, early on in the conversation with the three passengers, he gave them the option of using their cellular telephone to call someone to come and pick them up from the scene of the traffic stop, if someone could get them quickly enough. The older Reese brother, the intoxicated one, informed Driscoll that they were unable to reach anyone who would come and pick them up. Driscoll testified that defendant was cooperative. During his testimony Driscoll related to the court that it was his understanding that pedestrians are prohibited on the expressway except in emergency situations. Driscoll did not testify that he explicitly prohibited the men from departing on foot or that any of the men asked to do so. Driscoll di
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