Illinois DUI and Criminal Law Brief on Illegal Seizure for DUI Arrest: People v. Trimarco 

GENERAL NO. 02-08-0822

APPELLATE COURT OF THE STATE OF ILLINOIS

SECOND JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

-vs-

JOSEPH TRIMARCO,

Defendant-Appellant.

Appeal from DuPage County
Circuit Court 18^th District
Circuit Court Case No: 08 CF 834
The Honorable Kathryn Creswell
Judge Presiding
Date of Notice of Appeal: 08-26-08

ARGUMENT AND BRIEF OF DEFENDANT-APPELLANT

JOSEPH TRIMARCO

Earl A. Vergara

Ramsell & Kunowski, L.L.C., L.L.C.

128 S. County Farm Road, Suite F

Wheaton, IL 60187

(630) 665-8780

Oral Argument Requested

POINTS AND AUTHORITIES

PAGE

STANDARD OF REVIEW

BECAUSE THE FACTS ARE NOT IN DISPUTE, THE DE NOVO STANDARD OF REVIEW APPLIES HERE............................................................

People v. Ramirez, 214 Ill.2d 176, 291 Ill.Dec. 656, 824 N.E.2d 232 (2005)..............5

People v. Ehley, 381 Ill.App.3d 937, 887 N.E.2d 772, 320 Ill.Dec. 628 (2008)........5

ARGUMENT

I. THE DEFENDANT WAS UNLAWFULLY SEIZED WHEN

a. THREE FULLY MARKED POLICE CARS WITH FLASHING LIGHTS BLOCKED THE DEFENDANT'S VEHICLE

b. TWO UNIFORMED POLICE OFFICERS PERMANENTLY RETAINED THE DEFENDANT'S DRIVER'S LICENSE, AND ORDERED HIM TO SHUT OFF THE ENGINE AND EXIT THE VEHICLE.

People v. Brownlee, 186 Ill.2d 501, 517, 239 Ill.Dec. 25,

713 N.E.2d 556 (1999)..............................................................14

People v. Smith, 214 Ill.2d 338, 292 Ill.Dec. 915,

827 N.E.2d 444 (2005)..............................................................13, 18

People v. Croft, 346 Ill.App.3d 669, 673-674, 282 Ill.Dec. 216,

805 N.E.2d 1233 (2004).............................................................18, 20

People v. Gherna, 203 Ill.2d 165, 271 Ill.Dec. 245,

784 N.E.2d 799 (2003).................................................................. 16

United States v. Kerr, 817 F.2d 1384 (9^th Cir. 1987).........................................16

People v Beverly, 364 Ill.App.3d 361, 301 Ill.Dec. 97,

845 N.E.2d 962 (2006)................................................................. 16

Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382,

115 L.Ed.2d 389 (1991)............................................................. passim

People v. Murray, 137 Ill.2d 382, 387, 560 N.E.2d 309, 311,

148 Ill.Dec. 7 (1990)..................................................................... 13, 19

People v. Simac, 321 Ill.App.3d 1001, 255 Ill.Dec. 94,

748 N.E.2d 798 (2001).................................................................. 18

People v. Robinson, 368 Ill.App.3d 963, 859 N.E.2d 232,

307 Ill.Dec. 232 (2006)..................................................................19

People v. Carlson, 307 Ill.App.3d 77, 240 Ill.Dec. 302,

716 N.E.2d 1249 (1999)..................................................................19

United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 2110,

153 L.Ed.2d 242 (2002).................................................................. 17

United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870,

64 L.Ed.2d 497 (1980)............................................................... passim

People v. White, 221 Illl.2d 1, 302 Ill.Dec. 614, 849 N.E.2d 406 (2006).................. 14

People v. Luedemann, 222 Ill.2d 530, 857 N.E.2d 187,

306 Ill.Dec. 94 (2006)............................................................... passim

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).................. 14

II. THE DEFENDANT WAS UNLAWFULLY ARRESTED WHEN

a. TWO POLICE OFFICERS PHYSICALLY GRABBED AND ESCORTED THE DEFENDANT TO THE STREET BEFORE VERBALLY PLACING HIM UNDER ARREST FOR DUI

b. POLICE ARRESTED THE DEFENDANT WHEN NOTHING INDICATED HE HAD POOR BALANCE OR THAT HIS SPEECH WAS SLURRED.

People v. Boomer, 325 Ill.App.3d 206, 757 N.E.2d 960,

259 Ill.Dec. 97 (2001)................................................................ 20

People v. Lukach, 263 Ill.App.3d 318, 635 N.E.2d 1053,

200 Il.Dec. 714 (1994)............................................................... 20

People v. Murray, 137 Ill.2d 382, 387, 560 N.E.2d 309, 311,

148 Ill.Dec. 7 (1990)................................................................. 20

NATURE OF THE CASE

This is an appeal by the Defendant from a final judgment denying a Petition to Rescind a Summary Suspension. (C. 20). On March 8, 2008, the Defendant, Joseph Trimarco, was indicted by a grand jury for allegedly committing the offense of Aggravated Driving Under the Influence of Alcohol on February 8, 2008, in violation of 625 ILCS 5/11-501. (C. 1, 5). On June 19, 2008, the Defendant filed a Petition to Rescind a Summary Suspension. (C. 12).

The summary suspension hearing was held on August 22, 2008. (C. 29). There, the Defendant argued that police unlawfully seized and unlawfully arrested the Defendant without any indication of wrongdoing by the Defendant. (C. 72-75). At the conclusion of the hearing, the trial court denied the Defendant's Petition to Rescind a Summary Suspension. (C. 90). The judge held that there was a reasonable basis to seize the Defendant and probable cause to arrest him based on the observations made by police after the Defendant was detained and ordered to exit his vehicle. (C. 76). The court, however, did not identify which observations the officers relied on to support probable cause for the Defendant's arrest. (C. 76).

On August 26, 2008, the Defendant filed his timely Notice of Appeal. (C. 23).

ISSUES PRESENTED FOR REVIEW

I. WHETHER POLICE UNLAWFULLY SEIZED THE DEFENDANT WHEN THREE POLICE VEHICLES WITH FLASHING LIGHTS BLOCKED THE DEFENDANT'S VEHICLE, TWO OFFICERS ORDERED THE DEFENDANT TO EXIT HIS CAR, AND AN OFFICER PERMANENTLY RETAINED THE DEFENDANT'S DRIVER'S LICENSE.

II. WHETHER POLICE UNLAWFULLY ARRESTED THE DEFENDANT WHEN TWO POLICE OFFICERS PHYSICALLY GRABBED THE DEFENDANT AND ESCORTED HIM TO THE STREET BEFORE VERBALLY PLACING HIM UNDER ARREST FOR DUI, AND WHEN POLICE ARRESTED HIM WITHOUT ANY INDICIA OF INTOXICATION.

JURISDICTIONAL STATEMENT

This appeal is taken as a matter of right under Supreme Court Rules 301 and 303(a)(1), which govern appeals from final judgments in civil proceedings. Supreme Court Rule 301 provides that every final judgment of a circuit court in a civil case is appealable as of right. 155 Ill.2d R. 301. Rule 303(a)(1) provides, in relevant part, that the notice of appeal from final judgments in civil cases "must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." 155 Ill.2d R. 303(a)(1).

The judgment denying the Defendant's Petition to Rescind was entered on August 22, 2008. (C. 20). The Notice of Appeal was timely filed with the clerk of the circuit court on August 26, 2008. (C. 23).

STANDARD OF REVIEW

The issue of whether the trial court erred in denying the Defendant's petition to rescind is based on undisputed facts, and the timing of the seizure and arrest. Specifically, at issue is whether the Defendant was unlawfully seized and unlawfully arrested without a reasonable suspicion of criminal activity or observation of any wrongdoing on part of the Defendant.

That issue should be reviewed de novo because the facts are not in dispute, and wholly involves a question of law. See, e.g. People v. Ramirez, 214 Ill.2d 176, 291 Ill.Dec. 656, 824 N.E.2d 232 (2005); People v. Ehley, 381 Ill.App.3d 937, 887 N.E.2d 772, 320 Ill.Dec. 628 (2008). Thus, this appeal should be reviewed under the de novo standard.

STATEMENT OF FACTS

The following facts were adduced at a summary suspension hearing held on August 22, 2008, before the Honorable Judge Kathryn Creswell. On that date, Sheriff John Zaruba of the Dupage County Sheriff's Office, and Officer James Cahill of the City of Glendale Heights Police Department testified.

Report of an Incident

On the night of February 8, 2008, Sheriff John Zaruba was on duty for twenty-four hours in his unmarked police vehicle assisting units handle snow-related incidents. (C. 33). According to the sheriff, there was snowfall that day and his office received a "large call" reporting a lot of incidents, but he did not know whether they were all accident related. (C. 33, 35).

At approximately 9:00pm, Sheriff Zaruba testified he received report of an incident in a residential area near the intersection of Winthrop and Pearl Avenue in the City of Glendale Heights. (C. 32, 34). Sheriff Zaruba testified that a radio call was made to one of the deputy sheriffs alleging that a vehicle was stuck in a ditch, and that the driver was "allegedly intoxicated." (C. 34). The sheriff testified he did not personally receive the call, but heard about the single-car incident through the communications radio. (C. 34, 35). According to the sheriff, "It was a phone call. Whether it was a cell call or land line, I don't know. They just said a citizen called that in." (C. 34). Sheriff Zaruba testified he made his way to Winthrop and Pearl Avenue after receiving the report. (C. 34).

On the same night in question, Officer Dziedzic[1] and Officer Cahill of the Glendale Heights Police Department were also on duty, and were dispatched to the same location after receiving report of a one-car crash. (C. 34, 51-53). Sheriff Zaruba reached the intersection first, and within minutes, the Glendale Heights police officers arrived. (C. 37, 54).

Description of the Scene

Sheriff Zaruba testified there were no other vehicles on the road except for a large American car belonging to the Defendant and a pick-up truck that left the scene upon the Sheriff's arrival. (C. 36). According to Sheriff Zaruba, it was a "snowy evening that night" with 3-4 inches of snow on the ground. (C. 35). The Sheriff testified he could not recall whether the snow was falling at the time, or if the roads had been plowed. (C. 35). Officer Cahill, however, alleged that the snow had been plowed on the road, leaving "probably six inches" of snow at the edge of the roadway. (C. 60-61). Officer Cahill also testified there was "very light rain" that night with a temperature above freezing. (C. 61).

In the sheriff's observation of the scene, Sheriff Zaruba alleged that the Defendant's vehicle appeared to have been heading northbound [on Pearl Avenue] when it crossed the road, landed on "either a tree or a pole," and came to rest in a ditch on the west side of the street.[2] (C. 38, 50). Sheriff Zaruba testified he did not know whether part of the Defendant's car was still the roadway because he could not "recall where the shoulder and the roadway stopped." (C. 39). As such, the sheriff "was not positive" how the Defendant's vehicle landed in the ditch. (C. 38). Meanwhile, Officer Cahill alleged that the Defendant's vehicle was both in a ditch and in a snow bank. (C. 56, 60).

The Arrival of Three Law Enforcement Officers

Sheriff Zaruba was the first law enforcement officer to arrive at the location and testified he activated all of his flashing police lights for traffic safety, and to protect the scene and "let everyone know [he] was a police officer." (C. 36, 51, 54). The sheriff testified he activated his lights after coming to a complete stop at the intersection of Winthrop and Pearl Avenue before he made any contact with the Defendant. (C. 36). According to Officer Cahill, Sheriff Zaruba was in an unmarked police Chevy Suburban that had police "blue and red lights mounted on the inside of the windshield and on the sides of vehicle." (C. 53). According to Sheriff Zaruba, the police lights on his vehicle could light up a [court] room "very well." (C. 37).

Minutes later, Officer Dziedzic arrived at the intersection in a fully marked police car, followed by Officer Cahill also in a fully marked police car. (C. 53). Sheriff Zaruba testified one of the Glendale Heights police officers parked behind his SUV, while the other parked northbound on Pearl Avenue. (C. 41). Officer Cahill testified that before he activated his police lights, both Sheriff Zaruba and Officer Dziedzic already had their police lights fully activated when he arrived, and were standing outside the Defendant's vehicle. (C. 53-54).

The Deputy Sheriff Interacts with the Defendant

Sheriff Zaruba testified that the Defendant was seated in the driver's seat with the engine running when he approached the Defendant from the passenger side window. (C. 39). At that time, the Defendant had his car window rolled all the way up as he attempted to dislodge his vehicle from the snow by "going forwards and backwards." The sheriff testified he did not observe any physical damage to the Defendant's car doors that made the vehicle inoperable. (C. 39). Also, nothing indicated to the Sheriff that the Defendant was trapped in the car, or that the Defendant's life was in danger. (C. 39).

Sheriff Zaruba testified he was not in police uniform, and put his badge up on the passenger side window to advise the Defendant he was a police officer. (C. 40, 51). According to the sheriff, he tapped on the passenger window to "get [the Defendant's] attention to roll the window down." (C. 40). Instead of responding, Sheriff Zaruba testified the Defendant did not roll down his window immediately but continued "gunning the engine and putting it in gear" to try to dislodge his car from the snow. (C. 40, 50).

"Within seconds," the sheriff testified that Officers Dziedzic and Cahill arrived in fully marked police cars. (C. 40-41). Sheriff Zaruba testified one of the officers parked behind his vehicle, and the other northbound on Pearl Avenue. (C. 41). At that point, Sheriff Zaruba testified he turned the investigation over to the Glendale Heights police officers, gave them his information, and left the intersection. (C. 43). Thereafter, the sheriff testified he re-parked his vehicle in front of the Defendant's "vehicle in the ditch waiting in case the officers needed any of [his] assistance." (C. 43). Sheriff Zaruba testified he stayed on the scene after repositioning his vehicle and continued to observe the two police officers interact with the Defendant from three car lengths away until the Defendant was handcuffed. (C. 43-44, 47).

Two Glendale Heights Police Officers Interact With the Defendant

Officer Cahill testified he and Officer Dziedzic approached the Defendant from the driver's side window and attempted to speak with the Defendant. (C. 56). According to Officer Cahill, the Defendant rolled down his window after Officer Cahill and Officer Dziedzic knocked on the window to get the Defendant's attention. (C. 58-59). At that time, Officer Cahill testified the Defendant had his keys in the ignition and was "putting the vehicle in reverse and attempting to back out of the snow bank, the ditch he was in." (C. 56-57).

After the two officers got the Defendant's attention, Officer Cahill testified he asked the Defendant whether he was injured or needed medical attention. (C. 55). The Defendant responded he was not injured and did not need any medical attention, and attempted to dislodge his car from the snow. (C. 55, 57).

Immediately after the Defendant declined assistance, Officer Cahill testified he and Officer Dziedzic ordered the Defendant to put his vehicle in park and to step out because the Defendant's car was allegedly stuck and "wasn't going anywhere." (C. 56, 59-60). Officer Cahill testified he ordered the Defendant to get out of the car since they "were going to get the car out of the snow bank." (C. 59). Thereafter, the Defendant proceeded to put his car in park but remained in the vehicle with the window rolled down as he spoke with the officers. (C. 57). At this point, Officer Cahill testified he did not notice any glassy, bloodshot eyes, slurred speech, or an odor of alcohol coming from the Defendant when he ordered the Defendant to put his vehicle in park. (C. 58).

After the Defendant complied with the officer's order to put his vehicle in park, Officer Cahill testified he then asked the Defendant for his driver's license. (C. 58-59). When the Defendant provided his driver's license, Officer Cahill testified he kept the Defendant's driver's license for the balance of the night. (C. 56). At this point, Officer Cahill testified he still did not notice anything about the Defendant's eyes or speech. (C. 59).

After Officer Cahill ordered the Defendant to put the vehicle in park and retrieved his license, Officer Cahill testified he asked the Defendant how he ended up in the ditch. (C. 59). According to the officer, the Defendant informed him that "there was another car driving on the wrong side of the road that caused him to go off the roadway." (C. 58-59). It was at this point when Officer Cahill first noticed glassy, bloodshot eyes and an odor of alcohol coming from the Defendant's car. (C. 58).

Eventually, the Defendant complied with the officers' order to "shut the vehicle off and to step out." (C. 59-60). Upon the Defendant's exit, Officer Cahill alleged the Defendant fell forward as he attempted to get out of his car. (C. 60). Officer Cahill testified he had to physically hold the Defendant by his arm to keep him from falling down. (C. 60). Once the Defendant exited his vehicle, Officer Cahill then directed him to "walk around, out of the snow and into the street" where they could speak at a more level ground. (C. 61).

Thereafter, Officer Cahill and Dziedzic escorted the Defendant from his vehicle to the rear of one of the police cars parked on the street. (C. 61). En route to the police car, Officer Cahill alleged the Defendant lost his balance and had to be held up by his jacket by both police officers to prevent the Defendant from falling forward. (C. 61).

Meanwhile, Sheriff Zaruba testified there was no difference in the manner in which the police officers walked in comparison to the Defendant. (C. 42). According to Sheriff Zaruba, "They were going over snow drifts, so he [the Defendant] was walking precariously, all three of them were, around the vehicle through the snow." (C. 42). Additionally, Sheriff Zaruba testified he did not notice anything unusual about the Defendant's balance. (C. 44).

When the two police officers and the Defendant reached the police car parked on the street, Officer Cahill testified he asked the Defendant for his insurance card. (C. 62). Since the Defendant did not have his insurance card at hand, Officer Cahill testified he and Officer Dziedzic escorted the Defendant from the street back to his car to retrieve the insurance card. (C. 62). According to Officer Cahill, "We were walking next to him. I was actually still holding onto him at that point." (C. 63).

Upon reaching the passenger side of the Defendant's vehicle, Officer Cahill claimed the Defendant did not know how to get into his vehicle, and had to be told by the officer that the "window was down and the door was unlocked." (C. 62). After the Defendant retrieved his insurance card, Officer Cahill alleged the Defendant admitted to drinking three beers. (C. 63).

Thereafter, the Defendant was escorted back to the street by the two police officers a second time and requested to submit to standardized field sobriety tests. (C. 63). When the Defendant refused to perform the standardized field sobriety tests, Officer Cahill testified he placed the Defendant under arrest for driving under the influence of alcohol. (C. 63).

Forming an Opinion of Alleged Intoxication

Officer Cahill testified he formed the opinion the Defendant was under the influence of alcohol when the Defendant first exited his vehicle. (C. 65). In fact, according to Officer Cahill, "We asked him to perform field sobriety tests...just to gather evidence." (C. 66). Officer Cahill testified his opinion was "clear from the beginning," alleging that the Defendant had difficulty walking, keeping his balance, and had a strong odor of alcohol. C. 64). Additionally, Officer Cahill also testified Officer Dziedzic told him that he formed the opinion that the Defendant was under the influence of alcohol when the Defendant was looking for his insurance card. (C. 65).

Thus, Officer Cahill already concluded the Defendant was under the influence of alcohol after ordering the Defendant to "shut the vehicle off and to step out" and permanently retaining the Defendant's driver's license. (55, 59-60). Officer Dziedzic, on the other hand, concluded the Defendant was intoxicated after the Defendant had been ordered to exit the vehicle, and physically escorted to the street by him and Officer Cahill. (C. 61). Sheriff Zaruba, however, testified he did not form an opinion as to whether the Defendant was intoxicated because he "was never close enough." (C. 49).

At the conclusion of the hearing, the Court denied the Defendant's petition to rescind the summary suspension. According to the court, the officers had a right to activate police lights for safety purposes, detain the Defendant while investigating an accident, and order the Defendant to step out of the car. (C. 76). The court, however, never identified any particular observations made by the officers to warrant the Defendant's subsequent arrest. Instead, the court simply held the officers had probable cause to arrest based on the observations they made while the Defendant was in the car and when he was out. (C. 76).

On August 26, 2008, the Defendant filed his timely Notice of Appeal. (C. 23).

ARGUMENT

I. THE DEFENDANT WAS UNLAWFULLY SEIZED WHEN 1) THREE FULLY MARKED POLICE CARS WITH FLASHING LIGHTS BLOCKED THE DEFENDANT'S VEHICLE, AND 2) TWO UNIFORMED POLICE OFFICERS PERMANENTLY RETAINED THE DEFENDANT'S DRIVER'S LICENSE, AND ORDERED HIM TO SHUT OFF THE ENGINE AND EXIT THE VEHICLE.

An individual is seized when a police officer, "by means of physical force or show of authority," has in some way restrained the individual's liberty. People v. Smith, 214 Ill.2d 338, 352, 292 Ill.Dec. 915, 827 N.E.2d 444 (2005). Examples of circumstances that might indicate a seizure include: 1) the threatening presence of several police officers, 2) the display of an officer's weapon, 3) physical touching of the civilian by the officer, and 4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).

In determining whether a seizure occurred, a court will consider whether, in light of all the circumstances surrounding the incident, a reasonable person would have believed he or she was not "free to leave." People v. Brownlee, 186 Ill.2d 501, 517, 239 Ill.Dec. 25, 713 N.E.2d 556 (1999), quoting Mendenhall at 553. In situations where a person's liberty is restrained by some factor independent of police conduct, however, the "free to leave test" is inapplicable. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). In such a case, the appropriate inquiry in determining whether a seizure has occurred is whether a reasonable innocent person would feel free to decline the officer's requests or otherwise terminate the encounter." People v. Luedemann, 222 Ill.2d 530, 551, 857 N.E.2d 187, 200, 306 Ill.Dec. 94 (2006). Here, an objective evaluation of police conduct is required, and not the subjective perception of the individual involved. People v. White, 221 Illl.2d 1, 21, 302 Ill.Dec. 614, 849 N.E.2d 406 (2006); see also Florida v. Royer, 460 U.S. 491, 501-502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983).

In the instant case, the Defendant's liberty was restrained by a "factor independent of police conduct" when the Defendant's car was forced off the snowy roadway into a ditch by another vehicle. Thus, the "free to leave" test is inapplicable, and an objective standard must be used to evaluate whether, in view of all the circumstances surrounding the incident, police unlawfully seized and unlawfully arrested the Defendant.

Here, the Defendant was seized for purposes of the Fourth Amendment on multiple levels when three law enforcement officers conveyed to the Defendant, by show of authority and use of force, that the Defendant could not freely ignore their requests. First, upon receiving an anonymous report that a "vehicle was in a ditch" and that the driver was possibly intoxicated, three law enforcement officers from two different jurisdictions arrived on the scene. Each officer arrived in a separate vehicle. And each officer activated his bright, flashing police lights before making any face-to-face contact with the Defendant. When the officers arrived, the only person on the road was the Defendant.

In Luedemann, a court held that the use of flashing lights as a show of authority is one factor indicative of a seizure because it signals to an individual that they must comply with the officer's requests. Id. at 558. In the matter at bar, the fact that three police vehicles surrounded the Defendant with their flashing lights fully activated was much more indicative of a seizure. In other words, the mere presence of multiple police cars with flashing lights as opposed to one police car with flashing lights more powerfully conveyed to the Defendant that he was seized. More importantly, it conveyed to the Defendant that he had been seized before any officer confirmed any wrongdoing on the Defendant's part.

Here, the officers could have investigated the reported incident without conveying to the Defendant he had been seized by the officers' show of authority. For example, the officers could have chosen to light flares or put cones on the road to indicate they were in the process of conducting an investigation, not acquiring evidence of a crime. The officers could have also simply chosen not to activate any flashing police lights until they corroborate the anonymous report of a possibly intoxicated driver. Either of these options would have conveyed to the Defendant he was not being seized without a reasonable suspicion of wrongdoing. Nonetheless, by immediately activating their police lights before speaking to the Defendant, each officer practically conveyed to the Defendant 'You did something wrong and that is why you are being detained.'

Furthermore, the Defendant was unlawfully seized when police blocked in his car when there was no apparent damage to his vehicle, and the vehicle was capable of being driven away by the Defendant. According to Leudemann at 559-560, when police block cars in a driveway or in some other fashion, a seizure occurs. Here, the Defendant's vehicle was blocked by law enforcement officers who positioned their vehicles directly ahead and behind the Defendant on Winthrop and Pearl Avenue.

According to Sheriff Zaruba, the Defendant's vehicle was facing northwest on Pearl Avenue when it came to rest in a ditch west of Winthrop. (C. 38). The sheriff testified upon his arrival, he parked at the intersection of Winthrop and Pearl Avenue [facing northbound on Pearl], while one of the Glendale Heights police officers parked behind him. (C. 41). Subsequently, the sheriff moved his vehicle, made a U-turn, and re-positioned his vehicle facing southbound on Pearl directly in front of the [rear] of the Defendant's vehicle. (C. 43, 45). Meanwhile, the other officer from Glendale Heights parked northbound on Pearl [ahead of the Defendant's vehicle]. (C. 41). Thus, the Defendant was completely boxed in the moment law enforcement officers arrived on the scene.

In People v. Gherna, 203 Ill.2d 165, 180, 271 Ill.Dec. 245, 254, 784 N.E.2d 799 (2003), the Illinois Supreme Court held that a defendant was seized when two officers on bicycles positioned themselves alongside the driver's door and the passenger's door of a defendant's vehicle. See also United States v. Kerr, 817 F.2d 1384 (9^th Cir. 1987)(finding seizure where police blocked car in a one-lane driveway); People v Beverly, 364 Ill.App.3d 361, 370, 301 Ill.Dec. 97, 845 N.E.2d 962 (2006)(defendant was seized when police officer parked perpendicularly behind the defendant's vehicle, blocking it in its parking space).

In the instant case, the officers completely boxed in the Defendant and prevented him from exiting onto the roadway. Sheriff Zaruba obstructed the Defendant's vehicle even when he never formed an opinion as to the Defendant's possible intoxication. Meanwhile, Officer Cahill and Dziedzic also boxed in the Defendant immediately upon arriving at the scene prior to them forming any opinion as to the Defendant's possible intoxication. As such, the Defendant was unlawfully seized when law enforcement officers restrained his freedom of movement at a time when there was no reasonable basis to suspect that the Defendant had committed a crime.

Additionally, the Defendant was unlawfully seized when he was ordered to "shut off his vehicle" and step out, and provide identification that was never returned to the Defendant. Generally, a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen. United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002). When a reasonable person feels free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. Bostick at 434. However, when taking into account all the circumstances surrounding the incident, the conduct of police amounts to a seizure when a reasonable innocent person under identical circumstances is led to believe that they are not free to decline the officer's requests. Id. at 436. As such, a consensual encounter, will lose its consensual nature if law enforcement officers convey a message, by means of physical force or show of authority that induces the individual to cooperate. Id. at 434-435.

Here, the Defendant was induced to cooperate with police officers and was unlawfully seized when he was ordered simultaneously by two uniformed officers to turn off his engine and exit the vehicle. At that time, the Defendant was still seated in the car and none of the officers observed any glassy, bloodshot eyes and slurred speech indicating that the Defendant might be intoxicated. Yet the officers still ordered the Defendant to step outside the vehicle, claiming that his car was not going anywhere anyway.

Strangely, Officer Cahill testified he told the Defendant to put the vehicle in park and get out so they could help the Defendant out of the snow. It seems, however, absurd to push a vehicle out of the snow when it is in park. Also, nothing in the record indicates that a tow truck was called to the scene to extricate the Defendant's vehicle in the snow. Instead, as soon as the officers arrived, they immediately ordered the Defendant to put the car in park, turn off the vehicle, and exit the vehicle. At that point, the Defendant was essentially seized without the officer ever observing glassy, bloodshot eyes or slurred speech.

While police may claim that they were justified in detaining the Defendant for safety purposes or for fulfilling their role as a community caretaker, their conduct shows a different story. Generally, police may initiate contact and engage in a consensual encounter with an individual to check on their well being without the encounter becoming a seizure. People v. Simac, 321 Ill.App.3d 1001, 1004, 255 Ill.Dec. 94, 748 N.E.2d 798 (2001). This context of a police-citizen encounter constitutes a "community caretaker function or public safety function." People v. Murray, 137 Ill.2d 382, 387, 560 N.E.2d 309, 311, 148 Ill.Dec. 7 (1990).

In People v. Robinson, 368 Ill.App.3d 963, 973, 859 N.E.2d 232, 244, 307 Ill.Dec. 232 (2006), a court found that it was within the scope of an officer's community caretaking function to approach a driver who was unconscious and slumped over the steering wheel of his car with the motor running. Similarly, in People v. Carlson, 307 Ill.App.3d 77, 240 Ill.Dec. 302, 716 N.E.2d 1249 (1999), a court held that an officer may approach a parked vehicle, awaken the sleeping driver, request identification, and order the driver to step outside without seizing him. In both cases, the life-threatening condition of the driver was paramount in giving police officers a justification detain the motorist.

In the instant case, however, the Defendant's life was not in danger. The police was not justified in coercing the Defendant to accept their offer of assistance. The Defendant was conscious, alert, cognizant of his situation, and knew what he needed to do to get his car out of the snow. He did not want any help from the police, and neither did he want medical treatment because he was not injured. Instead, the Defendant merely wanted to go about his business without the assistance of the officers.

In response, the officers ordered the Defendant to desist from making an attempt to dislodge his car from the snow. Had the officers intended to fulfill the community caretaker function role, they would have simply accepted the fact that the Defendant did not want to be helped. Here, the Defendant was unlawfully seized because police coerced him into receiving assistance.

Additionally, the officer's manner of investigating the reported incident falls outside the scope of a community caretaker function. Generally, for an officer's conduct to fall within the scope of a community caretaker function, the purpose of a law enforcement officer's questioning of the citizen must be "totally divorced from the detection, investigation, or acquisition of evidence." People v. Croft, 346 Ill.App.3d 669, 673-674, 282 Ill.Dec. 216, 805 N.E.2d 1233 (2004). Here, the questioning of the Defendant by the officers amounted to an attempt to detect, investigate and acquire evidence of wrongdoing. For instance, Officer Cahill testified he only attempted to administer standardized field sobriety tests to gather evidence of the Defendant's alleged intoxication. In fact, Officer Cahill formed the opinion that the Defendant was intoxicated after he had already ordered the Defendant to put the vehicle in park, and also after he had already permanently retained the Defendant's driver's license.

•II. THE DEFENDANT WAS UNLAWFULLY ARRESTED FOR DUI WHEN TWO POLICE OFFICERS PHYSICALLY GRABBED AND ESCORTED THE DEFENDANT TO THE STREET BEFORE VERBALLY PLACING HIM UNDER ARREST, AND WHEN POLICE ARRESTED THE DEFENDANT WHEN NOTHING INDICATED THAT HE HAD POOR BALANCE OR THAT HIS SPEECH WAS SLURRED.

Police officers need probable cause to arrest an individual for DUI. Murray at 387. In People v. Boomer, 325 Ill.App.3d 206, 757 N.E.2d 960, 259 Ill.Dec. 97 (2001), a court held that there was no probable cause to arrest a defendant for DUI when all that was known about the defendant's accident was that he apparently lost control of his motorcycle, and there was no evidence that the defendant was riding in an erratic manner. Similarly, in People v. Lukach, 263 Ill.App.3d 318, 635 N.E.2d 1053, 200 Il.Dec. 714 (1994), a court found that the mere admission by the driver involved in a single car accident that he had some drinks and the fact that the car went off the road, had nothing unusual about his eyes or the way he was standing, did not provide requisite probable to cause to arrest.

In the matter at bar, there was not sufficient evidence to prove the Defendant drove erratically, or that he had problems balancing or speaking clearly at the time of his arrest. Accordingly, the Defendant's single car accident happened on a night of heavy snowfall when many incidents were reported to law enforcement agencies (such that Sheriff Zaruba was on duty for twenty-four hours assisting multiple units). In fact, Sheriff Zaruba testified he was not positive how the Defendant's vehicle ended up in a ditch after crossing a roadway covered with 3-4 inches of snow. Additionally, it is unclear from the record that Officer Cahill and Officer Dziedzic even inspected skid marks on the road nor tire marks at the edge of the roadway to perhaps reconstruct how the single-car accident occurred. There was even some discrepancy as to where the Defendant's vehicle came to rest - while Sheriff Zaruba testified that the Defendant's car came to rest in a ditch, Officer Cahill alleged it was both in a ditch and in a snow bank where snow had accumulated from being plowed.

Here, what is clear from the record was that two uniformed police officers from Glendale Heights Police Department immediately approached the Defendant upon arriving on the scene and ordered him to exit the vehicle when the officers believed the Defendant was unsuccessful in his attempt to dislodge his car from the snow. When the Defendant complied with the officers' orders and exited the vehicle, Officer Cahill alleged the Defendant stumbled upon his exit, and then stumbled again while walking to the street. On the contrary, Sheriff Zaruba testified he observed nothing unusual about the Defendant's balance or his walk as the two officers escorted him to the street while grabbing his jacket. In fact, according to the sheriff, all three individuals walked precariously as they traversed snow drifts 3-6 inches deep.

In light of all the surrounding circumstances, the Defendant was unlawfully arrested when two uniformed police officers physically grabbed him and escorted him to the street where the officers allegedly sought to speak to the Defendant at a more level ground. Although the Defendant had not yet been placed under arrest, the fact that two officers were physically accosted him undoubtedly conveyed to the Defendant he was under arrest and not free to walk away. In fact, both officers had already formed the opinion that the Defendant was intoxicated before they even escorted him to the street. According to Officer Cahill, he tried to administer standardized field sobriety tests just for the purpose of gathering evidence.

Taking together the fact the Defendant was continually surrounded by three police cars with flashing lights, was ordered by two uniformed police officers to shut off his engine and exit the vehicle, was required to permanently surrender his driver's license, and was physically grabbed and escorted to the street by two police officers all before officers observed wrongdoing on the Defendant's part, and all before the Defendant was verbally placed under arrest, clearly conveyed to the Defendant that he, in fact, had been unlawfully seized and was not free to ignore the officers' requests nor walk away from the encounter.

CONCLUSION

For all of the above reasons, the Defendant prays that this Honorable Court reverse the decision of the trial court, and remand this matter with an order directing the trial court to rescind the Defendant's summary suspension.

CERTIFICATION OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the appendix, is _23_ pages.

Respectfully Submitted,

Earl A. Vergara

COUNSEL FOR DEFENDANT-APPELLANT

INDEX TO THE REPORT OF PROCEEDINGS

PAGE

Witness: John Zaruba

Direct Examination by Mr. Donald J. Ramsell 32

Cross Examination by Mr. Nick Catizone 50

Witness: James Cahill

Direct Examination by Mr. Donald J. Ramsell 52

Cross Examination by Mr. Nick Catizone 66

Redirect Examination by Mr. Donald J. Ramsell & Armamentos, LLC 70

Petitioner rests 71

Motion for Directed Finding 71

INDEX TO THE RECORD

C0000001 03-25-08 Indictment

C0000002 03-25-08 Indictment Id. Info

C0000003 03-25-08 Warrant

C0000004 03-27-08 Warrant

C0000005 03-27-08 Bail Bond

C0000006 04-28-08 Discovery Order

C0000007 04-28-08 Supplemental Disclosure to Defendant

C0000008 04-28-08 Disclosure to Defendant

C0000010 06-09-08 Order

C0000011 06-09-08 Notice of Filing

C0000012 06-19-08 Petition to Rescind Statutory Summary Suspension

C0000013 06-19-08 Order

C0000014 06-19-08 Motion For A Continuance

C0000015 06-19-08 Affidavit

C0000016 06-25-08 Subpoena

C0000017 07-11-08 Notice of Filing

C0000018 07-11-08 Subpoena

C0000019 07-11-08 Order

C0000020 08-22-08 Order Summary Suspension

C0000021 08-22-08 Order

C0000022 08-25-08 Continue Summary Suspension

C0000023 08-26-08 Notice of Appeal

C0000024 08-26-08 Notice of Filing

C0000025 08-26-08 Writ of Praecipe

C0000026 09-04-08 Subpoena

C0000027 09-04-08 Subpoena

APPENDIX

ITEM EXHIBIT

Indictment 1

Petition to Rescind Statutory Summary Suspension 2

Order of Summary Suspension 3

Notice of Appeal 4

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[1]Officer Dziedzic did not testify at the summary suspension hearing held on August 22, 2008.

[2] The intersection of Pearl Avenue and Winthrop is a three-way intersection. Pearl Avenue runs northbound and southbound. Winthrop is east of Pearl Avenue, and runs east to west, ending at Pearl Avenue.