THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GABRIEL H. CORDERO, Defendant-Appellant, 358 Ill. App. 3d 121

JUSTICE KAPALA delivered the opinion of the court: Defendant, Gabriel H. Cordero, appeals his convictions of driving under the influence (DUI) (625 ILCS 5/11 — 501(a)(2) (West 2000)) and operating an uninsured vehicle (625 ILCS 5/3 — 707 (West 2000)). Defendant moved the trial court to quash his arrest and suppress evidence, contending that he had been illegally seized by a Lake County deputy sheriff. The trial court denied defendant’s motion. Thereafter, defendant was convicted of the above-mentioned charges, following a stipulated bench trial. On appeal, defendant contends that he was illegally seized.

We agree and reverse. On September 30, 2001, defendant was arrested for DUI. On April 21, 2002, defendant filed a motion to quash arrest and suppress evidence. The following facts are taken from the parties’ agreed statement of facts, as the hearing on the motion to quash and suppress was not transcribed. Deputy Quinones of the Lake County sheriffs office testified that she had been employed by that office for approximately 2V2 years. On September 30, 2001, at about 2:42 a.m., she was patrolling near Luke’s Restaurant on Route 43 in Knollwood.

As she passed the restaurant, heading south, she observed a vehicle parked in the parking lot. Deputy Quinones took special notice of the vehicle because the restaurant had been closed for many hours, the parking lot was not lit, and she was “suspicious” that the vehicle might have been involved in criminal activity such as robbery. Deputy Quinones executed a U-turn and, as she entered the Luke’s parking lot, the vehicle began to leave the parking lot. Deputy Quinones then executed a traffic stop of the vehicle as it pulled into the street.

Deputy Quinones also testified that she had no indication of illegal activity other than the late hour, the darkened parking lot, the fact that the restaurant had been closed for a long time, and her observation that the car was parked outside of the parking space lines. The trial court (Judge Patrick N. Lawler) denied defendant’s motion to quash and suppress. It reasoned that, had defendant remained stationary and not left the parking lot, then the stop would have been improper.

However, because of the late hour, the fact that all of the businesses served by the Luke’s parking lot were closed, and defendant’s “furtive” and sudden departure upon the approach of a police car, the trial court held that Deputy Quinones’ actions satisfied the reasonable suspicion standard and fell within her community caretaking function. On May 30, 2002, defendant filed a motion to reconsider the ruling.

The motion to reconsider alleged that the trial court erred in determining both that Deputy Quinones’ conduct satisfied the reasonable suspicion standard and that the encounter could be considered to be justified under the community caretaking function of the police. On June 26, 2002, the trial court heard argument and denied the motion to reconsider. Immediately thereafter, on June 26, 2002, defendant filed a notice of appeal. On October 15, 2002, defendant filed a motion for

summary remand and construction of a record, pointing out that he had filed an unauthorized interlocutory appeal. On October 31, 2002, this court granted defendant’s motion for

summary remand and dismissed the appeal. After the cause was remanded, no alternative record of the suppression hearing was prepared. On January 21, 2003, however, defendant filed another motion to reconsider the ruling on the motion to quash and suppress. Defendant argued that the stop performed by Deputy Quinones could not be justified as an exercise of the deputy’s community caretaking function as a police officer. On April 1, 2003, the State moved to dismiss the second motion to reconsider as untimely.

While the record is somewhat unclear regarding who ruled on the motions and when the rulings were made, the trial court denied both the motion to dismiss and the second motion to reconsider. Following the denial of his motion to reconsider, defendant submitted to a stipulated bench trial. By agreement of the parties, the trial court (this time, Judge Thomas R. Smoker) reviewed the police reports as the trial evidence, which included a narrative written by Deputy Quinones. After the trial court read the police reports, it found defendant guilty of both DUI and driving an uninsured vehicle.

The trial court proceeded immediately to sentencing and imposed concurrent terms of conditional discharge for the two convictions. The trial court also imposed a $750 fine for DUI and a $500 fine for operating an uninsured vehicle. Defendant did not file a posttrial motion, and he timely appeals. On appeal, defendant raises three issues. First, defendant contends that the trial court’s ruling on his motion to quash and suppress was erroneous.

Specifically, defendant argues that Deputy Quinones’ activation of her squad car’s lights removed her actions from the realm of her community caretaking function, thereby requiring a reasonable suspicion in order to justify her stop of defendant. Defendant continues, asserting that the circumstances surrounding the stop did not give rise to the necessary reasonable suspicion to justify the stop.

Second, defendant argues that his vehicle was registered in another state and, as the mandatory liability insurance requirement does not apply to an out-of-state vehicle, defendant’s conviction of driving an uninsured vehicle must be reversed. Last, defendant argues that he is entitled to a $5 credit toward the fines imposed in this case because he spent a day in custody before his trial. The State confesses error on the second and third issues defendant raises. However, we need reach only defendant’s first issue.

A trial court’s ruling on a motion to suppress presents mixed questions of fact and law for a court of review to consider. People v. Gherna, 203 Ill. 2d 165, 175 (2003). We will uphold on review the trial court’s factual findings unless the findings are against the manifest weight of the evidence. Gherna, 203 Ill. 2d at 175. The reviewing court remains free, however, to assess the legal effect of the facts in relation to the applicable law and the issues presented, and to draw its own conclusions in deciding what relief should be granted. Gherna, 203 Ill. 2d at 175-76.

Accordingly, the ultimate question of whether the evidence should be suppressed is reviewed de novo. People v. Pitman, 211 Ill. 2d 502, 512 (2004). Before we analyze the correctness of the trial court’s decision on the suppression motion, we note that the State claims that, because defendant did not file a posttrial motion, he has waived our review of this issue. We disagree. Defendant agreed to proceed by way of a stipulated bench trial in order to preserve the issue for our review.

It would be illogical to find waiver where the State and defendant specifically agreed to a procedure designed to preserve the very issue raised here. Moreover, the State is estopped from raising waiver, having agreed to the process of a stipulated bench trial. See People v. Todd, 249 Ill. App. 3d 835, 840-41 (1993) (stipulated bench trial obviates need for posttrial motion, effectively being a waiver of the requirement by the State). Accordingly, we decline the State’s invitation to dispense with substantive review, and instead we reach the merits of defendant’s argument.

Defendant notes that the trial court invoked community caretaking as an alternate justification for Deputy Quinones’ stop of defendant’s vehicle. Defendant argues that Deputy Quinones’ show of authority in activating her lights, and her investigative purpose, remove this encounter from the realm of the community caretaking and public safety level of police-citizen encounters.

Our supreme court has consistently defined the term “community caretaking function” as follows: “In essence, ‘ “[c]ommunity caretaking” is a label used to describe consensual police-citizen encounters that typically involve the safety of the public.’ People v. Gonzalez, 204 Ill. 2d 220, 224 (2003) (declining to apply the label where no facts in record warranted its use); see also People v. Gonzalez, 324 Ill. App. 3d 15, 22 (2001) (collecting cases), rev’d & remanded, 204 Ill. 2d 220 (2003).

Encounters falling within this tier do not involve coercion or detention, and therefore do not rise to the level of a fourth amendment seizure. Murray, 137 Ill. 2d at 387.” People v. Smith, 214 Ill. 2d 338, 352 (2005). There is nothing in this record to suggest that Deputy Quinones’ stop of defendant’s vehicle was justified on any basis other than reasonable suspicion. In fact, on appeal the State argues only reasonable suspicion as a justification for the stop. We now turn to an analysis of whether the circumstances in this case gave rise to a reasonable and articulable suspicion of criminal activity.

To justify a seizure on this ground, the officer “must be able to point to specific and articulable facts which, taken together with reasonable inferences therefrom, reasonably warrant the intrusion.” People v. Croft, 346 Ill. App. 3d 669, 675 (2004). Whether there was a reasonable suspicion to justify a Terry stop is determined from the totality of the circumstances. Croft, 346 Ill. App. 3d at 675. Further, the situation encountered by the officer must be so far from the ordinary that any competent officer would be expected to act quickly. Croft, 346 Ill. App. 3d at 675.

In this case, Deputy Quinones was on routine patrol. She observed a car in the parking lot of a restaurant several hours after it had closed for the night. When she entered the parking lot, she observed the car begin to pull out of the parking lot. Deputy Quinones did not testify that she observed the car drive off rapidly or recklessly, but merely that it began to pull out, whereupon she activated her lights and stopped it. Deputy Quinones did not testify that the area was a high-crime area or that she was aware of any recent criminal act occurring close to the restaurant.

Instead, she indicated that the mere presence of the car in the parking lot after hours led her to suspect criminal activity. Under these circumstances, we hold that Deputy Quinones lacked a reasonable and articulable basis to justify her decision to perform a Terry stop of defendant. We note as well that these facts provide no basis for the trial court’s determination that defendant acted in a “furtive” or sudden manner. We find guidance in Croft.

There, the defendant was observed walking his bicycle in a neighborhood in which, as the arresting officer had been informed, several recent episodes of vandalism had occurred. The officer did not respond to these earlier calls or have a description of a suspect. Instead, the officer merely considered the circumstances of a person walking a bicycle at night in that neighborhood to be “strange.” Croft, 346 Ill. App. 3d at 675-76.

This court held that the officer lacked reasonable suspicion to justify his Terry stop, noting especially that the mere fact that an individual is new to an area or looks “suspicious” or out of place, without more, is insufficient to establish reasonable suspicion. Croft, 346 Ill. App. 3d at 676. Likewise, here, while an occupied car in a parking lot after hours may be anomalous or “strange,” without more, it cannot justify a Terry stop. The State argues that parking after hours in front of a closed business may give rise to police concern, citing People v. Rivera, 304 Ill. App. 3d 124 (1999).

We find Rivera distinguishable, however, because there, the police had a detailed tip that criminal activity would occur at a particular location, and there had been recent burglaries at that location. Rivera, 304 Ill. App. 3d at 127-28. Here, there was no tip and no testimony about crime in the area whatsoever. The State also argues that defendant’s action of driving away upon seeing Deputy Quinones’ approach is sufficient to establish a reasonable suspicion. The State cites to People v. Morris, 209 Ill. 2d 137 (2004), to support its contention. We find Morris to be distinguishable.

There, officers observed the defendant and his accomplice exit a car in a high auto-theft area. The defendant and his accomplice walked across the street in front of the officers’ car, and when they noticed the police, they became visibly shocked and alarmed, and then immediately engaged in a headlong flight from the police. Morris, 209 Ill. 2d at 150. The supreme court held that, under these circumstances, the officers’ pursuit of the defendant and his accomplice was justified. Morris, 209 Ill. 2d at 157.

Here, by contrast, Deputy Quinones did not observe defendant engage in headlong flight upon sighting her; she observed only that he began to drive out of the parking lot. She further did not observe defendant become nervous, startled, shocked, or scared upon first observing her. In addition, she did not testify that defendant was observed in a high-crime area or that any recent criminal acts had occurred in the area that would make defendant’s presence of more concern. Moreover, we note that the mere fact that a vehicle drives away at the approach of a police car does not justify a Terry stop. People v.

Fox, 97 Ill. App. 3d 58, 64 (1981). Accordingly, we hold that Deputy Quinones’ stop of defendant was not justified by a reasonable and articulable suspicion. The trial court should have granted defendant’s motion to quash arrest and suppress evidence. Because the State would be unable to prove defendant’s guilt beyond a reasonable doubt without the fruits of the stop, we reverse outright defendant’s convictions. See People v. Kipfer, 356 Ill. App. 3d 132 (2005). For the foregoing reasons, the judgment of the circuit court of Lake County is reversed. Reversed. HUTCHINSON, J., concurs.

We note, however, that although the trial court’s factual conclusions are entitled to deference, there is nothing in the record before us, either in the agreed statement of facts or in the police report that is part of this record, to support the trial court’s conclusion that defendant’s departure was furtive and sudden.