 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Sloup9/2/2005
as not reasonably related to the initial stop was not because Officer Opelt lacked an evidentiary justification for suspecting that defendant was under the influence, but because he really did not have that suspicion at the time he asked to search the car. The majority reasons that Officer Opelt's decision to forgo sobriety testing indicated that he no longer believed that defendant was under the influence. Slip op. at 9. The majority misreads the record. Officer Opelt dispensed with sobriety testing because he had concluded there did not exist the probable cause he mistakenly thought was needed for field sobriety tests (see Village of Plainfield v. Anderson, 304 Ill. App. 3d 338, 342 (1999) (only reasonable suspicion necessary for field sobriety tests)), not because he had abandoned his belief that defendant was under the influence. Officer Opelt's testimony plainly shows that, at the time he sought permission to search the car, he believed that defendant was under the influence, based on his traffic infractions, obvious disorientation, and admitted recent release from drug rehabilitation. The majority has ventured no reason not to believe Officer Opelt's testimony. Thus, if the majority's doubts about Officer Opelt's sincerity are the only obstacle to its finding the first prong of Terry/Gonzalez satisfied, then the record must put that hesitation to rest. In any event, we need not divine Officer Opelt's thoughts, since the test for determining whether police action is justified under the fourth amendment is an objective one. See Gray, 305 Ill. App. 3d at 839.
Having said this, I cannot be sure the majority really believes that the reason Officer Opelt's request to search the car was not reasonably related to the initial stop was because his interaction with defendant did not, as the majority incorrectly puts it, "corroborate his initial suspicion that defendant might be under the influence" (slip op. at 9), for not five lines after this remark, the majority says, "Officer Opelt's ultimate request to search the car was not reasonably related to the stop because the questioning regarding defendant's location and destination was not probative of whether contraband might be found in the car" (slip op. at 9). Does the majority believe that the request to search the car was unreasonable because (1) defendant's answers to Officer Opelt's prior questions did not corroborate his suspicion that defendant was under the influence, or because (2) Officer Opelt's questions were not tailored enough to determining specifically whether defendant had contraband in the car? I addressed the soundness of rationale (1) above. If, in fact, rationale (2) is the intended rationale, then I cannot see why Officer Opelt would have had to ask defendant whether he had contraband in his car before asking to search the car. Both queries would have been based on a suspicion that defendant had contraband, and if, as the majority apparently believes, it was permissible for Officer Opelt to ask defendant if he had contraband in the car, then surely the officer could have dispensed with preliminaries and simply asked to search the car. Defendant could have declined a request to search his car just as easily as he could have refused to answer a question about his possession of contraband.
There are flaws also in the majority's analysis under the third prong of Terry/Gonzalez, which asks whether the fundamental nature of the stop was changed. See Moore, 341 Ill. App. 3d at 810. Here again the majority reads more into Officer Opelt's conduct than the record allows. The majority states that " n light of Officer Opelt's decision to forgo sobriety testing, it appears that his hunch regarding concealed contraband in the vehicle was based on
Page 1 2 3 4 5 6 7 8 9 10 11 Illinois DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|