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People v. Kleutgen8/1/2005
ailable to private individuals. However, the Lahr court specifically distinguished Marino, in which this court held that an arrest effected under (unspecified) assertions of official police authority can be proper under section 107--3, on the basis that the police in Marino did not use any powers limited to peace officers to collect evidence. Lahr, 147 Ill. 2d at 384. Later cases have maintained this distinction. For instance, in People v. Shick, 318 Ill. App. 3d 899, 905 (2001), a Third District panel held that an officer's use of his police radio, MARS lights, spotlight, and gun did not affect the validity of an arrest made under section 107--3. Thus, an arrest under section 107--3 becomes improper only if an out-of-jurisdiction officer used the powers or equipment collect the evidence that justified the arrest.
This court, in People v. Kirvelaitis, 315 Ill. App. 3d 667 (2000), sowed some confusion about the effect of the use of powers limited to peace officers. In that case, we considered whether an out-of-jurisdiction officer's use of a radar gun and his speeding to make an arrest invalidated an arrest under section 107--3. Kirvelaitis, 315 Ill. App. 3d at 669. Initially, this court clearly stated the proper rule: "when an officer's own observations provide a sufficient basis to arrest the defendant, an officer subsequently may use the powers of his office to make the arrest." Kirvelaitis, 315 Ill. App. 3d at 672. Later, it seemed to hold that an officer may use only the powers an ordinary citizen has in making an arrest:
"Defendant argues that the arrest was not a proper citizen's arrest because, among other things, Officer Symonds drove approximately 80 miles per hour in a 45-mile-per-hour speed zone in order to overtake defendant. * Defendant argues that a private citizen could not speed in order to catch a speeder and, thus, Officer Symonds, acting as a private citizen, could not speed in order to arrest defendant. We agree. Officer Symonds, who was outside his jurisdiction, acted beyond the rights given to private citizens when he exceeded the speed limit in order to arrest defendant." Kirvelaitis, 315 Ill. App. 3d at 673.
Lahr mandated the result in Kirvelaitis, because the arresting officer used a radar gun to gather the evidence necessary to justify the arrest. See Kirvelaitis, 315 Ill. App. 3d at 672. However, the suggestion that the use of police authority for purposes other than evidence gathering has any effect of the validity of an arrest under section 107--3 is simply wrong.
Here, defendant argues that Bergeron used his emergency lights and police radio to gather the evidence needed to justify defendant's arrest. We disagree. Neither played any part in Bergeron's observation that defendant's car was weaving in and out of its lane, which was enough for him to arrest defendant for improper lane use. See Smith, 172 Ill. 2d at 297.
For the reasons given, we reverse the order of the circuit court of Kendall County granting defendant's petition for rescission of the summary suspension of her driver's license and quashing her arrest, and we remand the matter for further proceedings consistent with this decision.
Reversed and remanded.
HUTCHINSON and GILLERAN JOHNSON, JJ., concur.
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