2011 Ill.App. LEXIS 1257; 2011 IL App (4th) 110272
THE ARRESTING OFFICER’S TESTIMONY REGARDING THE SIZE OF THE AIR FRESHENER, HOW IT SWAYED BACK AND FORTH, AND THAT IT WOULD HAVE OBSTRUCTED DEFENDANT’S VIEW BASED ON DEFENDANT’S SITTING POSITION, PROVIDED THE ARRESTING OFFICER REASONABLE SUSPICION, BASED ON A MATERIAL OBSTRUCTION, TO JUSTIFY THE ARRESTING OFFICER STOPPING DEFENDANT’S VEHICLE.
Defendant was arrested and charged with the offense of DUI. The State also charged Defendant with one count of unlawful possession of drug paraphernalia and one count of unlawful possession of cannabis. The State later charged Defendant with driving with an unlawful substance (tetrahydrocannabinol metabolite) in his urine pursuant to 625 ILCS 5/11-501(a) (6).
Defendant filed a motion to quash arrest and suppress evidence regarding the traffic stop of his vehicle, and a petition to rescind the statutory summary suspension of his driver’s license. The Trial Court conducted a hearing on both motions.
The Arresting Officer testified he observed Defendant driving a Dodge Caravan on July 21, 2010 between approximately 8 and 10 a.m. He first noticed the vehicle had a broken rear taillight on the driver’s side. The Arresting Officer followed the vehicle and noticed an air freshener hanging from the rearview mirror, which he had seen when he first observed the vehicle.
He guessed the air freshener was three inches in width and four to five inches in length. It was hanging from a string and the top was “approximately two or three inches below the bottom of the mirror”. The Arresting Officer testified that he had no specific training with regard to air fresheners and whether they constitute a material obstruction. Because of the broken taillight and the air freshener, the Arresting Officer executed a traffic stop.
The Arresting Officer requested Defendant’s driver’s license and proof of insurance. After checking the materials, the Arresting Officer advised Defendant he could smell burnt cannabis inside the vehicle. Defendant exited the vehicle and consented to a search of his person. The Arresting Officer searched the vehicle and discovered a substance resembling cannabis, and paraphernalia.
On cross-examination, the Arresting Officer testified that he observed the air freshener hanging from the mirror, “for a great deal of time” and also saw it swaying. Based on Defendant’s sitting position, the Arresting Officer testified that the air freshener “would have to impair his ability to – obstruct his view”. The Arresting Officer estimated there were a minimum of five times that Defendant would have been required to look to his right, the same directing in which the air freshener obstructed his view.
When the Arresting Officer asked Defendant whether anybody had smoked in the vehicle, Defendant stated his brother had smoked earlier in the day. Defendant later admitted the vehicle contained cannabis and/or paraphernalia. A search of the vehicle revealed a green leafy substance believed to be cannabis and a glass smoking pipe containing residue. Defendant later admitted that he smoked cannabis less than an hour before the stop. The Arresting Officer placed Defendant under arrest.
Defendant testified that the “Yankee Candle” air freshener was about three inches wide and four inches long. He stated that it hung from a string, and the top of the cardboard was approximately 1.5 inches from the bottom of the mirror. Defendant did not recall the air freshener obstructing his view and he “never has a problem with it at all”.
The Trial Court denied Defendant’s motions. The Trial Court found that the Officer had an articulable and reasonable suspicion to effectuate a stop based on the evidence. The Trial Court found Defendant guilty of DUI, unlawful possession of drug paraphernalia, and unlawful possession of cannabis.
On appeal, Defendant argued that the Trial Court erred in denying his motion to suppress evidence and his motion to rescind his statutory summary suspension.
Writing for the Court, Justice Turner noted that to be constitutionally permissible, an “investigating stop must be justified at its inception”. People v. Close,238 Ill.2d 497, 505, 345 Ill.Dec. 620 (2010). “The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion” Close, 238 Ill.2d at 505. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
On appeal, Defendant argued that the traffic stop was not justified because the evidence failed to show the air freshener constituted a material obstruction.
The Appellate Court then reviewed the material-obstruction statue found in section 12-503(c) of the Illinois Vehicle Code, which states:
No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield ***which materially obstructs the driver’s view. 625 ILCS 5/12-503(c) (West 2010).
The Court noted that it had been confronted, over the last several years, with multiple cases concerning whether items hanging from a rearview mirror constitute a material obstruction.
The Appellate Court reviewed its decision in People v. Cole, 369 Ill.App.3d 960, 314 Ill.Dec. 171 (4th Dist. 2007). In Cole, the Defendant was stopped because the officer observed a single strand of opaque beads, which were one-fourth of an inch in diameter, hanging four inches in length from the rearview mirror at eye level. The Arresting Officer, however, believed “anything suspended between the driver and the front windshield violated section 12-503(c)”. Cole, 369 Ill.App.3d at 966. The Officer never testified that the beads constituted a material obstruction but only that they “hindered [the] Defendant’s ability to observe other drivers”. Cole, 369 Ill.App.3d at 969. Because the Arresting Officer did not have a reasonable suspicion or probable cause to believe the beads constituted a material obstruction based on his mistake of law, the Appellate Court reversed the Trial Court’s denial of the Defendant’s motion to suppress.
The Appellate Court then reviewed its decision in People v. Johnson, 384 Ill.App.3d 409, 323 Ill.Dec. 261 (4th Dist. 2008). In Johnson, the Arresting Officer stopped the Defendant’s car after observing from the rear and side, at night, an air freshener shaped like two life-sized cherries hanging from the rearview mirror. The Officer testified that the air freshener created a material obstruction of the Defendant’s view of the roadway, but he did not tell that to the Defendant during the stop. When confronted with photographs of the car, with the air freshener hanging from the rearview mirror, the Officer concluded the driver’s view was not obstructed. Considering at the time of the stop the Officer did not inform the driver that the air freshener was a material obstruction, the Officer’s fleeting view of the air freshener in the dark, and the Officer’s lack of understanding as to what constituted a material obstruction, the Appellate Court affirmed the Trail Court’s granting of Defendant’s motion to suppress.
The Appellate Court also reviewed its decision in People v. Mott, 389 Ill.App.3d 539, 329 Ill.Dec. 314 (4th Dist. 2009). In Mott, the Arresting Officer pulled over the Defendant’s vehicle, which contained a leaf-shaped air freshener hanging from the rearview mirror. The Officer estimated that the air freshener was 3 ½ to 4 inches wide and 4 to 5 inches tall. The Officer believed that the air freshener hung about 1 inch below the mirror on a string which swung side to side. The Officer had no formal training as to what constituted a “material obstruction”, and the Trial Court found the Officer “mistakenly believed any object the size of a fingernail or larger hanging between the driver and the windshield constituted a ‘material obstruction’ providing reasonable suspicion for a traffic stop”. In addition to noting the air freshener was smaller than that estimated by the Officer, the Court found the Officer did not testify to the relationship between the air freshener and the Defendant’s eye level. In affirming the Trial Court’s decision to grant the motion to suppress, the Appellate Court noted the Officer “failed to articulate any specific facts giving rise to an inference [the] Defendant’s view was obstructed”. The Appellate Court noted, however, “size alone does not determine whether an object materially obstructs the driver’s view”, and maintained that “all of the objects listed could be material obstructions in the proper situation”.
The Appellate Court maintained that in making its decision on a motion to suppress, the Trial Court’s focus is not on “whether an offense was actually committed but whether an arresting officer reasonably suspected at the time of the stop that criminal activity was taking place or about to take place”.
Turning to the matter at bar, the Appellate Court noted that the Arresting Officer testified he saw the air freshener as soon as he saw Defendant’s vehicle. He estimated the air freshener to be three inches wide and four to five inches in length. The air freshener hung by a string, and the top was approximately two to three inches below the bottom of the mirror. The Officer believed the air freshener was “at least a few inches below [Defendant’s] eye level” and he observed it swaying. From Defendant’s sitting position, the Arresting Officer believed “it would have to impair his ability to – obstruct his view”. He estimated Defendant passed at least five intersections that would require Defendant to look to the right and in the path of the air freshener.
The Appellate Court noted that the Trial Court found the air freshener was about three inches wide and three to four inches high, and hung by an elastic string. The top of the air freshener was about two inches below the mirror. The Trial Court also found the Arresting Officer believed the air freshener did constitute a material obstruction based upon its placement in the vehicle and in relation to Defendant’s eye level. The Trial Court stated it reviewed the Cole, Johnson, and Mott opinions and found the Arresting Officer’s recitation of the facts and details as to why the air freshener constituted a material obstruction was sufficient to establish a reasonable suspicion of a material obstruction.
The Appellate Court concluded that the evidence sufficiently established the Arresting Officer had a reasonable suspicion that the air freshener constituted a material obstruction thereby justifying the traffic stop. The Arresting Officer testified to the size of the air freshener, how it swayed back and forth, and that it would have obstructed Defendant’s view based on Defendant’s sitting position. The Arresting Officer did not testify he pulled Defendant over simply because he had an air freshener hanging from his rearview mirror. The Officer was not mistakenly of the view that anything larger than a fingernail constituted a material obstruction. Rather, the Officer had a good view of the air freshener and testified to specific facts as to why he believed the air freshener constituted a material obstruction. The video entered into evidence showed the air freshener hanging down from the mirror and swaying side to side.
In light of the Arresting Officer’s observations and the video evidence, the Appellate Court held that a reasonable Officer could conclude the air freshener violated section 12-503(c). The Appellate Court found a reasonable suspicion existed, based on the material obstruction, to justify the Arresting Officer stopping Defendant’s vehicle.
The Appellate Court affirmed the Trial Court’s judgment.
David B. Franks
Lake in the Hills, IL