Opinion
No. 1-14-3397
08-15-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE RAMON CHAVEZ, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 13 CR 1909
Honorable Vincent Michael Gaughan, Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court.
Justices Pierce and Mason concurred in the judgment.
ORDER
¶ 1 Held: Defendant's conviction for aggravated driving under the influence affirmed as modified where the police video corroborates the officer's testimony that defendant committed traffic violations, giving police reasonable suspicion to stop him; Electronic Citation Fee vacated.
¶ 2 After a bench trial, defendant Jose Ramon Chavez was convicted of aggravated driving under the influence (DUI) and sentenced to 20 months' probation. On appeal, Chavez contends that the trial court erred when it denied his motion to quash arrest and suppress evidence because the police officer lacked reasonable suspicion to stop him where the video from the police
dashboard camera contradicts the officer's testimony that Chavez committed traffic violations. Chavez also contends, and the State agrees, that the $5 Electronic Citation Fee should be vacated.
¶ 3 We find that the video does not contradict, but instead, corroborates Walter's testimony regarding Chavez's traffic violations, and so the trial court's factual findings are not against the manifest weight of the evidence. We vacate the fee and affirm as modified.
¶ 4 Background
¶ 5 Chavez was tried on two counts of aggravated DUI. Chavez filed a motion to quash arrest and suppress evidence arguing that the police violated his fourth amendment rights when he was stopped because the officer did not observe him committing a crime or ordinance violation. He argued that because the stop and subsequent search were unlawful, all evidence obtained by the police had to be suppressed.
¶ 6 Chavez's motion to suppress was heard simultaneously with the bench trial. Chicago police officer Tim Walter testified that about 1:55 a.m. on October 16, 2012, he was driving his squad car northbound on Kedzie Avenue approaching Lawrence Avenue when he saw a Chevrolet Cavalier stopped at the red light. When the light turned green, the Cavalier made a wide right turn and crossed into the oncoming left turn lane on Lawrence Avenue. Walter followed the Cavalier and saw it moving side to side slightly within the lane. When the car reached the bridge in the 2800 block of Lawrence Avenue, it drifted to the right through the marked bicycle lane. The car then drifted to the left on top of the center lane line. Walter activated his emergency equipment and stopped the car.
¶ 7 Walter approached the open driver's window and saw Chavez and another man in the passenger's seat. Walter smelled a strong odor of alcohol on Chavez's breath, and his eyes were
bloodshot, glazed and glassy, and his speech was sometimes slurred. Walter advised Chavez of his traffic violations and requested his driver's license and proof of insurance. Chavez could not produce either item and stated that his driver's license had been suspended since 2004.
¶ 8 Walter asked Chavez to get out of the car. After taking a couple of steps, Chavez stopped to steady himself. Chavez also left his driver's door open. Walter administered three field sobriety tests to Chavez. During each test, Walter observed multiple indications of alcohol consumption and impairment. Based on his observations of the traffic violations, Chavez's physical condition, and his performance on the field sobriety tests, Walter opined that Chavez was driving under the influence of alcohol and placed him under arrest.
¶ 9 Walter's squad car was equipped with a camera on the dashboard which recorded the events. As the video was played for the court, Walter pointed out when Chavez pulled out of a parking space into traffic, and noted his right turn onto Lawrence Avenue.
¶ 10 On cross-examination, Walter confirmed that the video depicted "everything [he] observed prior to pulling over [defendant]." Walter also acknowledged that Chavez's vehicle "hit" the bicycle lane "for a brief moment."
¶ 11 The State presented a stipulation that Chicago police officer Lydia Rodriguez administered a breath test to Chavez at the police station about 2:54 a.m. His breath alcohol content was 0.139. The State also presented a certified driving abstract from the Illinois Secretary of State which indicated that Chavez's driver's license was suspended at the time.
¶ 12 The trial court found that there was "significant evidence or articulable facts to create reasonable suspicion" which justified Officer Walter's stop of Chavez. The trial court stated that it considered "the totality of the facts," including the officer's experience, the wide right turn, and drifting into the bicycle and other lanes, which was sufficient to warrant a Terry stop.
Accordingly, the trial court denied Chavez's motion to quash arrest and suppress evidence. The court also found Chavez guilty of both counts of aggravated DUI. The two counts were merged and the court sentenced Chavez to 20 months' probation and 480 hours of community service. The trial court also imposed fines and fees totaling $1,689, including a $5 Electronic Citation Fee.
¶ 13 Analysis
¶ 14 Chavez first contends that the trial court erred when it denied his motion to quash arrest and suppress evidence because Officer Walter lacked reasonable suspicion to stop him where the video from the police dashboard camera contradicts Walter's testimony that Chavez committed traffic violations. Chavez claims that the video shows that he was not stopped at a red light, he did not cross into the oncoming left turn lane when he made the right turn, and he did not drift into the bicycle lane. Chavez argues that the video shows that Walter's testimony was untruthful, and his conviction must be reversed.
¶ 15 Our review of the trial court's ruling on a motion to quash arrest and suppress evidence presents questions of both fact and law. People v. McCarty, 223 Ill. 2d 109, 148 (2006). At a hearing on the motion, the trial court is responsible for determining the credibility of the witnesses, weighing the evidence, and drawing reasonable inferences. People v. Ballard, 206 Ill. 2d 151, 162 (2002). We review the trial court's factual findings for clear error, giving due weight to any inferences drawn from the facts by the fact finder, and will not disturb those findings unless they are against the manifest weight of the evidence. People v. Hackett, 2012 IL 111781, ¶ 18. But a reviewing court may undertake its own assessment of the facts in relation to the issues and draw its own conclusions when deciding what relief should be granted. Id. The trial court's
ultimate ruling on the motion is a question of law which we review de novo. People v. Close, 238 Ill. 2d 497, 504 (2010).
¶ 16 Vehicle stops are subject to the reasonableness requirement of the fourth amendment, which is analyzed under the principles set forth by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). Close, 238 Ill. 2d at 505. In general, the decision to stop a vehicle is reasonable where the police officer has probable cause to believe a traffic violation has occurred. Hackett, 2012 IL 111781, ¶ 20. But, the "less exacting" standard of reasonable, articulable suspicion which justifies an investigatory stop is sufficient for fourth amendment purposes. Id. To justify an investigative stop, a police officer must identify specific and articulable facts which, when taken together with natural inferences, reasonably warrant the intrusion. Id. When judging the conduct of a police officer, we apply an objective standard and consider whether the facts available to the officer at the time of the seizure justify the action taken. Id. ¶ 29.
¶ 17 The factor controlling our disposition is whether the video recorded by the dashboard camera contradicts Officer Walter's testimony that Chavez committed traffic violations. Chavez argues that this court should apply the standard of review that we previously applied in People v. Shaw, 2015 IL App (1st) 123157. In Shaw, this court noted that a trial court does not occupy a position that is superior to the appellate court when evaluating evidence that is not live testimony. Id. ¶ 29 (citing People v. Radojcic, 2013 IL 114197, ¶ 34). We stated "we give less deference to a trial court's determinations of fact when they are based on evidence other than live witness testimony." Id.
¶ 18 Chavez argues that in Shaw, as in this case, the determination of whether the trial court's findings are against the manifest weight of the evidence does not depend on witness credibility, but instead, depends on the video recording of the incident. He argues that we should not give
deference to the trial court's credibility assessment. Chavez's interpretation is not precisely accurate. In Shaw, we found that the surveillance video, as well as police testimony, directly contradicted the victim's testimony, rendering his testimony not credible. Shaw, 2015 IL App (1st) 123157, ¶ 26. Thus, witness credibility is a factor in our determination, and we will give "great deference" to the trial court's factual findings, including its credibility assessments, unless the record shows that those findings are against the manifest weight of the evidence, as it did in Shaw. See id. ¶ 30.
¶ 19 Here, the trial court considered "the totality of the facts," including Officer Walter's testimony and the video recording, and determined that the Terry stop was warranted. As we stated in Shaw, this court is in the same position as the trial court when evaluating video evidence. However, we will defer to the trial court's factual findings, unless the record shows that those findings are against the manifest weight of the evidence.
¶ 20 This court has viewed the video recorded by Officer Walter's dashboard camera, and we find that it depicts the traffic violations as testified to by Walter. The video begins with Chavez pulling away from the curb and into traffic in front of Walter's squad car. Chavez is correct on one minor point—contrary to Walter's testimony, the video shows that Chavez was not stopped at a red light, but instead, had a green light at the intersection of Kedzie and Lawrence Avenues. The video then shows Chavez making a right turn onto Lawrence Avenue. As he does so, the camera momentarily loses sight of Chavez's car while Walter is still facing northbound on Kedzie, and proceeds to turn right onto Lawrence behind Chavez. As Walter turns onto Lawrence, the video shows Chavez veering out of the oncoming left turn lane, across the center line, and into his proper lane after making a wide right turn. As Walter follows Chavez, Chavez drifts side to side slightly within his lane. Chavez then drifts to the right and touches the
markings for the bicycle lane. He then drifts to the left and his tires touch the top of the center lane line. Walter then activates his emergency equipment and stops Chavez.
¶ 21 We find that the video does not contradict, but instead, corroborates Walter's testimony that Chavez committed multiple traffic violations. Consequently, we conclude that the trial court's factual findings are not against the manifest weight of the evidence, and its denial of Chavez's motion to quash arrest and suppress evidence was proper.
¶ 22 Chavez next contends that the $5 Electronic Citation Fee assessed under section 27.3e of the Clerks of Courts Act (705 ILCS 105/27.3e (West 2012)) must be vacated as that fee only applies to traffic, misdemeanor, municipal ordinance and conservation violations, and does not apply to his felony offense.
¶ 23 Chavez acknowledges that he failed to preserve this issue for appeal because he did not challenge the assessment in the trial court. He urges this court, however, to review his claim under the plain error doctrine or Supreme Court Rule 615(b) (1) (eff. Aug. 27, 1999). It is well settled that a defendant forfeits a sentencing issue that he or she fails to raise in the trial court through both a contemporaneous objection and a written postsentencing motion. People v. Hillier, 237 Ill. 2d 539, 544 (2010). But, the rules of forfeiture and waiver also apply to the State, and where the State fails to argue that a defendant has forfeited the issue, it waives the forfeiture. People v. Reed, 2016 IL App (1st) 140498, ¶ 13. The State has not argued that the issue is forfeited, and thus, we address its merit.
¶ 24 The State agrees, and we concur, that the $5 Electronic Citation Fee was erroneously assessed to Chavez because that fee does not apply to felony convictions. We direct the clerk of the circuit court to amend the fines, fees and costs order by vacating the fee.
¶ 25 We vacate the $5 Electronic Citation Fee from the fines, fees and costs order, and affirm Chavez's conviction in all other respects.
¶ 26 Finally, we encourage the State and defense trial counsel to take a moment before the trial court enters the fines and fees order, and determine each item's correctness. This would significantly reduce appeals of these issues (which have become routine) by resolving inadvertent or clerical or drafting errors before they become matters requiring appellate review. A once-over can save scarce time and resources during the appellate process.
¶ 27 Affirmed as modified; fines, fees and costs order amended.