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People v. Smith1/30/2004
d not, however, offer walking as an option. Driscoll ultimately turned the situation over to Officer Schnizlein and transported the driver to the police station.
On examination by defense counsel, Driscoll explained that if defendant had asked, he would have been permitted to wait for the tow truck to arrive and to ride from the scene of the traffic stop with the tow truck driver. Driscoll testified that he did not ask defendant if he wanted to do that because he felt that it was not his place and it would be up to the tow truck driver whether he could ride in the tow truck. When asked by defense counsel about the emergency exception to the prohibition of pedestrians on the tollway, Driscoll responded that " hese gentlemen were intoxicated and I couldn't possibly sanction them walking on the expressway." Later Driscoll testified that he was concerned that the three men were going to be hit by someone if they were to walk along the tollway.
Officer Bruce Schnizlein testified that he has been a patrolman with the Naperville police department for over 24 years. On February 24, 2002, between 3 a.m. and 4 a.m., Schnizlein responded to a call by Officer Driscoll to assist at a traffic stop on I-88. When Officer Schnizlein arrived at the scene of the traffic stop, Officer Driscoll was administering field sobriety tests to the driver and there were three passengers inside of the stopped vehicle. After arresting the driver for DUI, Driscoll searched the vehicle while Schnizlein observed the passengers, who were standing behind the vehicle. After completing his search of the vehicle, Driscoll had a conversation with the three passengers. Schnizlein was not party to that conversation. After Driscoll spoke to the passengers, they went back into the stopped vehicle and Driscoll had a conversation with Schnizlein. According to Schnizlein, Driscoll told him that he had informed the passengers that they could accept a courtesy ride to the police station and arrange transportation from there or they could call someone to pick them up at the scene of the traffic stop. Officer Schnizlein's understanding from his conversation with Driscoll was that the passengers could not make arrangements for someone to pick them up at the scene of the traffic stop and that they wanted to go to the police station. When Driscoll left with the driver, the three passengers remained in the stopped vehicle. At that point, Schnizlein requested that an additional officer come to the scene because the passengers were going to be transported to the police station. Schnizlein testified that it was department policy and procedure that anyone entering a squad car be frisked for weapons.
When Officer Carlson arrived, Schnizlein told the passengers that their ride was there and that they would be driven to the police station. Ultimately, Officer Carlson transported the Reese brothers and Schnizlein transported defendant. Schnizlein testified that he asked defendant if he possessed any weapons and then advised him that it was department policy to frisk for weapons before allowing him to ride in the squad car. Defendant said that he had no weapons. When Schnizlein asked defendant if he would submit to the pat-down search, defendant put his hands on the trunk of the car so that he could be searched. Schnizlein said that defendant complied with the pat-down search without objection. While patting down the outside of defendant's clothing, Schnizlein felt a bulge in defendant's left sleeve consistent with a weapon. When Schnizlein asked defendant what it was, defendant said that it was a handgun. Schnizlein recovered a loaded .25-caliber semiautomatic handgun from defendant's sleeve and placed defendant under arrest. Schnizlein insisted tha
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