Village of Mundelein v. Marcis5/14/2004
832 ***266 that the person *1012 seized has committed or is about to commit a crime. Village of Mundelein v. Thompson, 341 Ill.App.3d 842, 848, 276 Ill.Dec. 237, 793 N.E.2d 996 (2003); see 725 ILCS 5/107-14 (West 2002) (codifying Terry standard). The facts supporting the police officer's suspicion do not need to constitute probable cause, but the officer's actions must be based on more than a mere hunch. people v. brown, 343 ill.app.3d 617, 622, 278 Ill.Dec. 416, 798 N.E.2d 800 (2003). However, a court is not limited to the bases cited by the officer for effecting the stop (Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89, 98 (1996)) because a totality-of-circumstances approach is used to objectively analyze whether the stop was reasonable (People v. Ledesma, 206 Ill.2d 571, 583, 276 Ill.Dec. 900, 795 N.E.2d 253 (2003)).
We first address the burden of proof and the standard of review. A hearing on a petition to rescind a summary suspension of driving privileges is a civil proceeding in which the petitioner has the burden to establish a prima facie case for rescission. People v. Smith, 172 Ill.2d 289, 294-95, 216 Ill.Dec. 658, 665 N.E.2d 1215 (1996). The burden then shifts to the prosecution to present evidence justifying the suspension. Smith, 172 Ill.2d at 295, 216 Ill.Dec. 658, 665 N.E.2d 1215. In the fourth amendment context, a petitioner may shift the burden by showing that "he was doing nothing unusual to justify the intrusion by the police at the time of the stop." People v. Drewes, 278 Ill.App.3d 786, 788, 215 Ill.Dec. 445, 663 N.E.2d 456 (1996). In weighing the evidence before it, the trial court is charged with passing on the witnesses' credibility and the weight to be given to their testimony, and we will not reverse its decision unless it is against the manifest weight of the evidence. However, we may reverse its grant of a petition to rescind if the trial court applied the incorrect legal standard to the facts of the case. Smith, 172 Ill.2d at 295, 216 Ill.Dec. 658, 665 N.E.2d 1215.
Defendant maintains that the trial court did not find Officer Sturlini to be a credible witness and discredited his testimony about defendant's drifts. We disagree. The trial court stated that it did not find Officer Sturlini's testimony about defendant's initial reduction in speed to be credible. It also found that the road in question did not have a fog line, a fact that the Village does not dispute. Though the trial court found that Officer Sturlini stopped defendant primarily because he believed that she had crossed the fog line, we note that we are not limited to the officer's subjective reasons for conducting an investigatory stop. Whren, 517 U.S. at 813, 116 S.Ct. at 1774, 135 L.Ed.2d at 98. There is no indication that the trial court found the remainder of Officer Sturlini's unrebutted testimony about defendant's driving to be incredible. We now turn to the issue of whether defendant's drifting and driving against the curb justified the stop.
In resolving this case, we find People v. Greco, 336 Ill.App.3d 253, 270 Ill.Dec. 626, 783 N.E.2d 201 (2003), instructive. There, the defendant was stopped after his car *1013 "swerved two or three times from the center of the road toward the curb." Greco, 336 Ill.App.3d at 255, 270 Ill.Dec. 626, 783 N.E.2d 201. This court held that erratic driving, including weaving within a single lane, is sufficient to warrant a traffic stop. Greco, 336 Ill.App.3d at 257, 270 Ill.Dec. 626, 783 N.E.2d 201. Similarly, in People v. Diaz, 247 Ill.App.3d 625, 626, 187 Ill.Dec. 391, 617 N.E.2d 848 (1993), the defendant's vehicle was " 'swerving all over the curb side roadway' " and crossed into the adjacent lane. This court held that even if the defendant's vehicle
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