People v. Butorac

Illinois Official Reports

Appellate Court

People v. Butorac, 2013 IL App (2d) 110953

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption TIMOTHY S. BUTORAC, Defendant-Appellant.

District & No. Second District

Docket No. 2-11-0953

Filed December 27, 2013

Held The warrantless and suspicionless stop of defendant’s boat by

(Note: This syllabus conservation officers pursuant to a regular and systematic operation of

constitutes no part of the stopping every boat the officers saw to check the boaters’ registration

opinion of the court but and safety equipment resulted in a minimal intrusion into their

has been prepared by the activities, and there was no indication that the officers were acting

Reporter of Decisions arbitrarily or with unbridled discretion; therefore, the trial court did

for the convenience of not err in denying defendant’s motion to quash his arrest and suppress

the reader.) the evidence that led to his conviction for operating a watercraft while

under the influence of alcohol or his motion to reconsider,

notwithstanding the fact that defendant made a prima facie case of an

unreasonable seizure, since the State countered defendant’s prima

facie case with evidence that neither a “waterway roadblock” nor a

fixed checkpoint was a viable alternative under the circumstances of

the waterway where defendant was boating and the minimal intrusion

by the officers was outweighed by the State’s interest in promoting

safe boating.

Decision Under Appeal from the Circuit Court of Kane County, No. 10-CV-138; the

Review Hon. Bruce W. Lester, Judge, presiding.

Judgment Affirmed.

Counsel on Thomas A. Lilien and Barbara R. Paschen, both of State Appellate

Appeal Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.

Bauer and Kathryn E. Kohls, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Justice Schostok concurred in the judgment and opinion.

Justice McLaren dissented, with opinion.

OPINION

¶1 Defendant was convicted of operating a watercraft while under the influence of alcohol

(625 ILCS 45/5-16(A)(1)(b) (West 2010)). He was convicted of that offense after officers

stopped his boat pursuant to section 2-2(a) of the Boat Registration and Safety Act (Act) (625

ILCS 45/2-2(a) (West 2010)), which permitted the officers to “board and inspect any boat at

any time” to determine if the Act was being complied with. On appeal, defendant argues that

the trial court should have granted his motion to quash his arrest and suppress evidence

because the stop of his boat was unconstitutional. Before the trial court and in his briefs on

appeal, defendant pursued both facial and as-applied challenges to section 2-2(a) of the Act. At

oral argument, however, defendant withdrew his facial challenge. As a result, the only issue

before us is whether section 2-2(a), as applied to defendant in this case, is unconstitutional.

Because we conclude that the State’s interest in promoting the safety of persons and property

in connection with boating outweighed the minimal intrusion occasioned by the officers’ stop

of defendant’s boat, we affirm the trial court’s judgment.

¶2 BACKGROUND

¶3 The procedural history of this case is unusual. Defendant’s motion to quash his arrest and

suppress evidence advanced nothing substantive in support of his as-applied challenge to

section 2-2(a) of the Act. The body of the motion consisted entirely of a facial challenge to the

constitutionality of section 2-2(a). At the conclusion of the motion, defendant simply asserted

that section 2-2(a) was also unconstitutional as applied to him, with no supporting analysis.

¶4 We do not have a transcript of the hearing on defendant’s motion. The parties have

supplemented the record, however, with an “Agreed Statement of Facts for Motion to Quash,”

in accordance with Illinois Supreme Court Rule 323(d) (eff. Dec. 13, 2005). It indicates that

the parties stipulated to the following facts for purposes of defendant’s motion: (1) Illinois

Conservation Police officers Eric Schreiber and Keith Siedsma stopped defendant’s boat on

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the Fox River pursuant solely to section 2-2(a) of the Act; (2) the Fox River is not connected to

any lakes, seas, or oceans; and (3) defendant had been doing nothing suspicious at the time.

The agreed statement of facts further indicates that the oral argument at the hearing on

defendant’s motion related to defendant’s facial challenge to the statute’s constitutionality.

According to the agreed statement of facts, the trial court denied defendant’s motion, making

no findings pertinent to an as-applied challenge to the statute.

¶5 Defendant then filed a motion to reconsider. In his motion, for the first time, defendant

included significant argument in support of his as-applied challenge. In arguing that the statute

was unconstitutional as applied to him, he relied on the stipulated facts from the hearing on his

motion to quash and suppress. The State offered no additional evidence in response to

defendant’s motion to reconsider. The trial court denied the motion to reconsider, finding that

there had been “no showing to overcome constitutionality of this statute” and that there was a

“superior state interest in keeping state waterways safe.”

¶6 Pertinent to the issue on appeal, Officers Siedsma and Schreiber testified at trial as follows.

On the afternoon and evening of July 9, 2010, they were on duty on an unmarked, 14-foot boat

on the Fox River. It was a small boat with a tiller-operated motor. The officers testified that the

“St. Charles Pool,” the stretch where they were working, is located between two dams and is

approximately 200 yards wide. It is “one of the more heavily populated areas for boating” and

has “a lot of boat traffic.” One dam is located in St. Charles and the other dam is located in

South Elgin. There were no “lane lines” or “buoy markers” on that portion of the river. Officer

Siedsma described their duties as “boat patrol”; Officer Schreiber used the term “routine boat

patrol.” Officer Siedsma elaborated on what he meant by “boat patrol”:

“Under the provisions of the Boat Safety Act, we are out enforcing boat laws, boat

safety laws.

We check for valid registration and boat safety equipment.

So we stop vessels and check for life jackets, what we call personal flotation

devices, fire extinguishers, sounding devices, or a horn or a whistle, valid registration.

Those are the main things that we look for.”

Officer Schreiber testified similarly: “[W]e were conducting safety inspections based upon

*** whether they have life jackets, a workable U.S. Coast Guard approved fire extinguisher, a

horn or whistle and registration.” The officers were in uniform. Schreiber described the

uniform as consisting of an identifiable shirt, pants, black work boots, a hat with a star emblem

representing law enforcement, and a life jacket with a star on it.

¶7 The officers put their boat in the water at around 2 p.m. and stopped every boat they saw to

check for registration and safety equipment, inspecting 20 to 25 boats before they stopped

defendant’s boat. At about 6:45 p.m., as their boat was stationary about a quarter-mile north of

the Boy Scout Island boat ramp, the officers saw defendant’s boat approach from the north. He

was steering and David Yeomans was on board. The officers headed north, pulled up alongside

defendant’s boat, and stopped it. Officer Schreiber testified that the officers stopped

defendant’s boat because they had neither seen nor stopped the boat previously that evening.

Because the officers’ boat did not have a siren, they hailed the boat by hand. According to

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Officer Schreiber, they would hail a boat by pulling up very close to the boat, identifying

themselves as conservation officers, and asking the operator of the boat to put his boat in

neutral. The officers identified themselves as conservation officers to defendant. The officers

then asked to see defendant’s safety equipment and registration, which he gave them

permission to check. The officers did not board defendant’s boat, and defendant was able to

show the officers the requested items “pretty much from where he was seated.” Defendant was

“very friendly” and “was joking, he was happy the whole time.” After the officers had checked

defendant’s safety equipment, they noticed numerous empty alcoholic-beverage bottles and

that defendant had glassy, bloodshot eyes and slurred speech. The officers tested defendant for

sobriety and then arrested him.

¶8 Yeomans, defendant’s passenger, testified that he and defendant put their boat in the water

around 11:30 a.m. or 12 p.m. They were “cruising around *** like you do on the river.” They

went to “the sandbar” where people would anchor their boats and congregate to “play football

and such.” At some point, they left the sandbar to pick up a friend from Boy Scout Island. It

took about 5 to 10 minutes to get there. On the way, “two guys on a boat waved [them] down”

and Yeomans and defendant “stopped and realized they were uniformed DNR [Department of

Natural Resources] officers.” According to Yeomans, they were only “yards away” from Boy

Scout Island when the officers stopped their boat. During the officers’ interactions with

defendant, they “were joking around with him[,] *** kind of like they were buddies with him

or something.” Defendant “was real cooperative and just doing all the things they were asking

him to do.” As pertinent here, the remainder of Yeomans’ testimony was consistent with the

officers’ testimony.

¶9 Defendant was convicted and timely appeals.

¶ 10 ANALYSIS

¶ 11 On appeal, defendant’s argument essentially is that the officers’ seizure of his boat

constituted a “waterway roadblock” akin to the types of motor-vehicle roadblocks that have

been deemed to violate the fourth amendment. He concedes that section 2-2(a) of the Act

authorized the seizure but contends that the officers acted with “unbridled discretion” and

should have employed measures like those required for motor-vehicle roadblocks. 1

¶ 12 Before reaching the merits of defendant’s argument, it is important to clearly outline the

standards guiding our review, especially in light of the unusual procedural history of this case.

In considering an as-applied challenge to a search or seizure authorized by statute, the question

is not whether the search or seizure was authorized by statute but, rather, whether the search or

seizure was reasonable under general fourth amendment principles given the particular facts of

the case. See Sibron v. New York, 392 U.S. 40, 61 (1968) (“ ‘Just as a search authorized by

1

Both the United States Constitution and the Illinois Constitution prohibit unreasonable searches

and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Generally, the Illinois provision is

construed in “lockstep” with the fourth amendment. People v. Caballes, 221 Ill. 2d 282, 313-14 (2006).

Defendant does not contend that this case presents an exception, so we confine our analysis to the

fourth amendment.

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state law may be an unreasonable one under that amendment, so may a search not expressly

authorized by state law be justified as a constitutionally reasonable one.’ ” (quoting Cooper v.

California, 386 U.S. 58, 61 (1967))); see also United States v. Cartwright, 630 F.3d 610, 614

(7th Cir. 2010) (“The existence of a police policy, city ordinance, or state law alone does not

render a particular search or seizure reasonable or otherwise immune from scrutiny under the

Fourth Amendment.”). An as-applied challenge to a search or seizure authorized by statute is

distinguishable in this respect from a facial challenge to the statute, which requires a defendant

to “fulfill the difficult task of establishing the statute’s invalidity under any set of facts.”

(Emphasis in original.) People v. Garvin, 219 Ill. 2d 104, 117 (2006).

¶ 13 At the hearing on a defendant’s motion to suppress, the defendant bears the burden of

establishing that the challenged search or seizure was unconstitutional and that the evidence

obtained as a result should be suppressed. See 725 ILCS 5/114-12(b) (West 2010). Under

Illinois law, a defendant makes out a prima facie case that a warrantless search or seizure was

unreasonable by proving that he was doing nothing unusual to justify the intrusion. People v.

Liekis, 2012 IL App (2d) 100774, ¶ 20. This is consistent with the well-established principle

that warrantless searches and seizures are considered per se unreasonable, unless they fall

within one of several specific, well-delineated exceptions. Illinois v. McArthur, 531 U.S. 326,

330 (2001); People v. Stehman, 203 Ill. 2d 26, 34 (2002). Once a defendant has made out a

prima facie case, the burden of production shifts to the State to come forward with evidence to

counter the defendant’s prima facie case. People v. Gipson, 203 Ill. 2d 298, 306-07 (2003).

Even though the burden of production shifts to the State, the ultimate burden of proof remains

with the defendant. Gipson, 203 Ill. 2d at 307.

¶ 14 Here, the parties stipulated that defendant was doing nothing suspicious at the time of the

stop and that Officers Schreiber and Siedsma stopped defendant’s boat on the Fox River

pursuant solely to section 2-2(a) of the Act (i.e., not based on probable cause, reasonable

suspicion, or a warrant). These stipulated facts satisfied defendant’s prima facie case, thus

shifting the burden of production to the State to produce evidence to counter his prima facie

case. However, the trial court heard no additional evidence beyond the stipulated facts. On

appeal, we are not limited to the stipulated facts from the hearing on defendant’s motion to

quash and suppress and may rely on the evidence presented at trial to the extent that it supports

affirming the trial court’s judgment. People v. Brooks, 187 Ill. 2d 91, 127-28 (1999). In

reviewing a trial court’s ruling on a motion to quash and suppress, where, as here, there is no

factual or credibility dispute, and the question involves only the application of the law to the

undisputed facts, our standard of review is de novo. People v. Robinson, 322 Ill. App. 3d 169,

173 (2001).

¶ 15 Turning to the merits of defendant’s argument, defendant largely relies on motor-vehicle

roadblock case law in support of his as-applied argument. At least in the motor-vehicle

context, the United States Supreme Court has recognized fixed checkpoints or roadblocks that

meet certain requirements as one of the well-delineated exceptions to the general prohibition

against suspicionless, warrantless seizures. See Illinois v. Lidster, 540 U.S. 419, 421 (2004)

(upholding a highway checkpoint at which police stopped motorists to ask them about a recent

hit-and-run accident); Michigan Department of State Police v. Sitz, 496 U.S. 444, 447 (1990)

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(upholding a system of highway sobriety checkpoints); United States v. Martinez-Fuerte, 428

U.S. 543, 561 (1976) (upholding permanent, fixed checkpoints located away from the border

as a means to combat illegal immigration). Generally, in deciding the constitutionality of a

suspicionless stop of a motor vehicle, a court must look to “ ‘the gravity of public concerns

served by the seizure, the degree to which the seizure advances the public interest, and the

severity of the interference with individual liberty.’ ” Lidster, 540 U.S. at 427 (quoting Brown

v. Texas, 443 U.S. 47, 51 (1979)). The interference with individual liberty consists of both the

“objective intrusion” and the “subjective intrusion” created by the seizure. See, e.g.,

Martinez-Fuerte, 428 U.S. at 558.

¶ 16 Suspicionless stops at fixed checkpoints or roadblocks are favored over suspicionless stops

by roving patrols because the objective and subjective intrusions created by the seizure are

minimized. See Sitz, 496 U.S. at 452-53. In United States v. Brignoni-Ponce, 422 U.S. 873

(1975), United States Border Patrol agents made “roving-patrol stops” of vehicles near the

border “without any suspicion that a particular vehicle [was] carrying illegal immigrants.”

Brignoni-Ponce, 422 U.S. at 882. In Delaware v. Prouse, 440 U.S. 648 (1979), state police

officers conducted “discretionary spot checks” by sporadically and randomly pulling vehicles

over to check for drivers’ licenses and registrations. Prouse, 440 U.S. at 650, 659. In both

cases, the Supreme Court held that the government’s interest in either preventing illegal

immigration (Brignoni-Ponce) or promoting public safety upon the roads (Prouse) did not

justify the intrusion upon individuals’ fourth amendment interests occasioned by the unsettling

and disruptive nature of random, suspicionless traffic stops. See Prouse, 440 U.S. at 657

(describing “the physical and psychological intrusion visited upon the occupants of a vehicle

by a random stop to check documents”); Brignoni-Ponce, 422 U.S. at 882 (stating that

“roving-patrol stops *** would subject the residents of these and other areas to potentially

unlimited interference with their use of the highways, solely at the discretion of Border Patrol

officers”); see also Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973) (holding that

search pursuant to statute that allowed United States Border Patrol agents to conduct

warrantless searches within a “reasonable distance” of the border and without probable cause

violated the fourth amendment). Even for the more favored checkpoint or roadblock, however,

the primary purpose must be something other than “the general interest in crime control.”

(Internal quotation marks omitted.) City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).

¶ 17 People v. Bartley, 109 Ill. 2d 273 (1985), was the first case in which the Illinois Supreme

Court held that a motor-vehicle checkpoint was constitutional under the fourth amendment. In

Bartley, the checkpoint was set up on a five-lane highway, and officers used police vehicles

with flashing lights to “funnel the westbound traffic into a single lane.” Bartley, 109 Ill. 2d at

277-78. The decision to establish the roadblock was made in advance by supervisory

personnel, and “[t]he plan was to stop every westbound vehicle unless traffic backed up.”

Bartley, 109 Ill. 2d at 277. The court discussed Prouse and Martinez-Fuerte and held that

assessing the constitutionality of the checkpoint at issue required “balancing the public interest

against the objective and subjective intrusion resulting from the stop.” Bartley, 109 Ill. 2d at

285. The court explained that the objective intrusion concerns the level of physical intrusion

and “is measured by such factors as the length of the stop, the nature of the questioning, and

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whether a search is conducted.” Bartley, 109 Ill. 2d at 281-82. The subjective intrusion

concerns the level of psychological intrusion, such as the generating of fright or annoyance on

the part of motorists. Bartley, 109 Ill. 2d at 282.

¶ 18 Addressing the public interest factor, the court concluded that driving under the influence

of alcohol is unquestionably an extremely serious problem, such that it would “justify some

intrusion on the unfettered movement of traffic in order to reduce alcohol-related accidents and

deter driving under the influence.” Bartley, 109 Ill. 2d at 285. Turning to the objective

intrusiveness of the roadblock, the court held that it had been minimal. Each motorist had been

detained for only 15 to 20 seconds unless further questioning was necessary; motorists were

allowed to stay in their vehicles; and they were asked to produce driving credentials, a

legitimate request. Bartley, 109 Ill. 2d at 287-88.

¶ 19 Addressing the degree of subjective intrusion occasioned by the roadblock, and by

roadblocks generally, the court noted that there was no “ironclad formula” but that the factors

relied upon by out-of-state courts were “illuminating.” Bartley, 109 Ill. 2d at 289. The court

stated that “[i]t is manifest that the fundamental evil to be avoided is the ‘roving patrol.’ ”

Bartley, 109 Ill. 2d at 288. The “crucial” inquiry, therefore, was “whether the field officers

[were] acting with unbridled discretion.” Bartley, 109 Ill. 2d at 289. The court looked to

several factors pertinent to this question, such as whether the decision to establish the

roadblock, and where to locate it, was made by supervisory personnel; whether vehicles were

stopped in a preestablished, systematic fashion; and whether there were guidelines in place for

operating the roadblock. Bartley, 109 Ill. 2d at 289-90. The absence of specific guidelines for

identifying impaired drivers was not fatal in Bartley, as the roadblock had been established by

supervisory personnel, who instructed the field officers on proper roadblock procedure, and

the roadblock was “clearly a systematic operation.” Bartley, 109 Ill. 2d at 290.

¶ 20 Besides the limitation on police discretion, other pertinent criteria that the court in Bartley

considered were whether there was a sufficient showing that the operation was official,

whether it was obvious that the roadblock was not unsafe, and the degree of advance publicity.

Bartley, 109 Ill. 2d at 291-92. Not all of these secondary criteria were satisfied in Bartley, but

the roadblock was held valid because, “while not a model roadblock,” the subjective intrusion

of the roadblock was “sufficiently limited to pass constitutional muster.” Bartley, 109 Ill. 2d at

289.

¶ 21 We cannot resolve the issue here by looking solely to motor-vehicle roadblock case law.

Pertinent to our case is United States v. Villamonte-Marquez, 462 U.S. 579 (1983), in which

the Supreme Court upheld a federal statute (19 U.S.C. § 1581(a) (1976)) empowering customs

agents lacking either a warrant or suspicion to board, examine, and search vessels at any place

in the United States and examine the manifest and other documents. The defendants in

Villamonte-Marquez had been convicted of conspiring to import marijuana after customs

officials, lacking any suspicion of wrongdoing, stopped and boarded the defendants’ sailboat

on a waterway connecting the Gulf of Mexico with Lake Charles, Louisiana, and discovered

marijuana. The court of appeals reversed the defendants’ conviction, agreeing with the

defendants’ argument that the boarding of the ship was unconstitutional. Villamonte-Marquez,

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462 U.S. at 583-84. The Supreme Court granted certiorari and reversed the court of appeals.

Villamonte-Marquez, 462 U.S. at 593.

¶ 22 In upholding the constitutionality of the seizure, the Court observed initially that, in 1790,

the First Congress passed the “lineal ancestor” of section 1581(a). Villamonte-Marquez, 462

U.S. at 584. The First Congress also passed the amendments that became the Bill of Rights,

strongly implying that the framers of the fourth amendment did not regard section 1581(a)

searches and seizures to be unreasonable. Villamonte-Marquez, 462 U.S. at 586-87; see Boyd

v. United States, 116 U.S. 616, 623 (1886).

¶ 23 Second, the Court distinguished motor-vehicle cases such as Brignoni-Ponce and Prouse.

Although, “if the customs officers in this case had stopped an automobile on a public highway

near the border,” the stop would have been unreasonable, there were crucial differences

between “vessels located in waters offering ready access to the open sea and automobiles on

principal thoroughfares in the border area.” Villamonte-Marquez, 462 U.S. at 588. The Court

explained:

“[N]o reasonable claim can be made that permanent checkpoints would be practical on

waters such as these where vessels can move in any direction at any time and need not

follow established ‘avenues’ as automobiles must do. Customs officials do not have as

a practical alternative the option of spotting all vessels which might have come from

the open sea and herding them into one or more canals or straits in order to make fixed

checkpoint stops. Smuggling and illegal importation of aliens by land may, and

undoubtedly usually does, take place away from fixed checkpoints or ports of entry, but

much of it is at least along a finite number of identifiable roads. But while eventually

maritime commerce on the inland waters of the United States may funnel into rivers,

canals, and the like, which are more analogous to roads and make a ‘roadblock’

approach more feasible, such is not the case in waters providing ready access to the

seaward border, beyond which is only the open sea.” Villamonte-Marquez, 462 U.S. at

589.

¶ 24 Third, the documentation system for vessels is “significantly different” from the prevailing

state vehicle licensing system. Unlike license plates and other motor-vehicle insignia, a

vessel’s outward markings normally provide no indication whether it currently complies with

state law; at the same time, the documentation requirements for vessels are more extensive and

more complex than typical state motor-vehicle-license requirements. Villamonte-Marquez,

462 U.S. at 589-91. Fourth, the documentation laws that are enforced through section 1581(a)

serve vital public purposes, including collecting duties and preventing the importation of

illegal aliens and dangerous or prohibited articles. These interests are “most substantial in

areas such as the ship channel in [Villamonte-Marquez], which connects the open sea with a

Customs Port of Entry.” Villamonte-Marquez, 462 U.S. at 591. Finally, as against the great

need for documentation checks, the intrusion created by a section 1581(a) stop is modest,

being limited to a brief detention, a visit to the vessel’s public areas, and the inspection of

documents. Villamonte-Marquez, 462 U.S. at 592.

¶ 25 In the wake of Villamonte-Marquez, a number of states have addressed the very issue

before us. Compare Peruzzi v. State, 567 S.E.2d 15 (Ga. 2002) (upholding a suspicionless stop

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authorized by a statute similar to section 2-2(a) of the Act), State v. Eppinette, 36,825-KA (La.

App. 2 Cir. 2/11/2003), 838 So. 2d 189 (same), State v. Pike, 532 S.E.2d 543 (N.C. Ct. App.

2000) (same), and Schenekl v. State, 30 S.W.3d 412 (Tex. Crim. App. 2000) (same), with State

v. Allen, 2013 Ark. 35 (invalidating a suspicionless stop authorized by a statute similar to

section 2-2(a) of the Act), State v. Carr, 173 Ohio Ct. App. 3d 436, 2007-Ohio-5466, 878

N.E.2d 1077 (same), and State v. Lecarros, 66 P.3d 543 (Or. Ct. App. 2003) (same). State

courts have varied in the extent to which they deem waterways amenable to some sort of

checkpoint or roadblock. Even among those cases that have declared that checkpoints are

impractical on bodies of water, state courts have differed in the extent to which they require

limitations on the discretion of the officers conducting boat safety checks.

¶ 26 In Schenekl, which involved a defendant convicted of boating while intoxicated after a

game warden stopped the defendant’s boat on a lake for a routine safety check, the Court of

Criminal Appeals of Texas concluded that checkpoints were not viable on waterways and

seemed to require no evidence at all of limitations on officer discretion. The court observed

that the state had “a high interest in promoting recreational water safety.” Schenekl, 30 S.W.3d

at 416. Although random safety checks were disapproved in Prouse, the court in Schenekl

distinguished Prouse in two respects. Schenekl, 30 S.W.3d at 416. First, there was no less

intrusive alternative to random stops, because “checkpoints are not a practical alternative on

the water.” Schenekl, 30 S.W.3d at 416 (citing Villamonte-Marquez, 462 U.S. at 592). Second,

motorists have a higher expectation of privacy than do boaters, because automotive

transportation is “basic, pervasive, [and] often necessary,” while boating is “more commonly

associated with recreation than necessity.” Schenekl, 30 S.W.3d at 416. A special concurrence

emphasized the limited objective intrusiveness of the stop but eschewed reliance on

Villamonte-Marquez, in which “one of the most weighty considerations” was the difficulty of

policing vessels with access to the open sea. Schenekl, 30 S.W.3d at 417 (Meyers, J.,

concurring, joined by Holland and Johnson, JJ.).

¶ 27 Peruzzi is a case in which, although the court echoed Schenekl in noting the impracticality

of checkpoints on the waterway at issue, the court required some limitations on officer

discretion. The defendant in Peruzzi was convicted of boating under the influence after his boat

was stopped on Lake Peachtree, pursuant to a statute similar to section 2-2(a). Peruzzi, 567

S.E.2d at 15. The stop was part of a “mass inspection” that state conservation officers had

undertaken at the direction of the county marshal; they were instructed that, ideally, they

should stop “every boat” on the lake and check for registration and safety equipment. Peruzzi,

567 S.E.2d at 15. The Georgia Supreme Court upheld both the statute and the stop, concluding

that the state’s strong interest in boating safety outweighed any intrusion on individual privacy.

Peruzzi, 567 S.E.2d at 16. The court observed:

“Unlike cars traveling upon a public road, boats on an open body of water such as Lake

Peachtree originate from a large number of docks and launches and need not follow any

particular path. A roadblock is clearly infeasible and the emphasis in this case is on the

procedural aspects of the stop.” Peruzzi, 567 S.E.2d at 16-17.

The court relied on factors essentially identical to those that the Illinois Supreme Court in

Bartley applied to motor-vehicle checkpoints. Peruzzi, 567 S.E.2d at 16. The objective

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intrusion had been slight: the officers asked boaters only to show their licenses and the required

equipment, which took at most a few minutes. Peruzzi, 567 S.E.2d at 16. The subjective

intrusion had also been limited: the decision to conduct the inspection had been made by the

county marshal; the instruction to check every boat if possible minimized officer discretion;

and the officers had been in uniform and in marked boats. Peruzzi, 567 S.E.2d at 16.

¶ 28 Carr represents the other end of the spectrum from Schenekl and goes further than Peruzzi

in applying motor-vehicle checkpoint case law to suspicionless stops of watercraft. In Carr, a

conservation officer on routine patrol on Buckeye Lake State Park stopped the defendant’s

pontoon boat for a safety inspection. Carr, 173 Ohio Ct. App. 3d 436, 2007-Ohio-5466, 878

N.E.2d 1077, at ¶ 20. In invalidating the stop, the court observed that Buckeye Lake was “not

open to the sea, so a checkpoint [was] a practical alternative, as noted by the U.S. Supreme

Court in Villamonte-Marquez.” Carr, 173 Ohio Ct. App. 3d 436, 2007-Ohio-5466, 878 N.E.2d

1077, at ¶ 20. The court further observed that the authorizing statute set “no limitations on the

discretion of state officers in conducting [boat safety] inspections.” Carr, 173 Ohio Ct. App.

3d 436, 2007-Ohio-5466, 878 N.E.2d 1077, at ¶ 20. Apparently, whether to stop any craft was

“entirely within their discretion.” Carr, 173 Ohio Ct. App. 3d 436, 2007-Ohio-5466, 878

N.E.2d 1077, at ¶ 20. Because there was no evidence that there had been a “properly authorized

program to stop vessels” to check safety equipment or registration, the stop was

unconstitutional. Carr, 173 Ohio Ct. App. 3d 436, 2007-Ohio-5466, 878 N.E.2d 1077, at ¶ 21.

The court noted that the statute could be applied constitutionally; even lacking suspicion of a

violation, an officer may legally stop a vessel “if there is a particularized checkpoint procedure

designed and systematically administered to limit the discretion of officers.” Carr, 173 Ohio

Ct. App. 3d 436, 2007-Ohio-5466, 878 N.E.2d 1077, at ¶ 22. The application of this rule would

be highly fact-specific, because “[t]he practicality of checkpoints either at docks or marinas or

on the water *** will depend on the specific body of water.” Carr, 173 Ohio Ct. App. 3d 436,

2007-Ohio-5466, 878 N.E.2d 1077, at ¶ 23.

¶ 29 After reviewing Villamonte-Marquez and the out-of-state cases that have addressed the

issue before us, we find the approach of the Georgia Supreme Court in Peruzzi to be the most

persuasive. Just as the court in Peruzzi concluded that a fixed checkpoint was infeasible on

Lake Peachtree, a fixed checkpoint or “waterway roadblock” was not a viable alternative on

the St. Charles Pool, which is the portion of the Fox River where defendant was stopped. In the

area where defendant was stopped, the St. Charles Pool is 200 yards wide and is bordered by

two dams. The officers testified that one dam is in St. Charles and the other is in South Elgin.

St. Charles and South Elgin are located approximately 6½ miles apart. See People v. Deleon,

227 Ill. 2d 322, 326 n.1 (2008) (noting that a reviewing court may take judicial notice of the

distance between two locations). Considering its length, there can be little doubt that, as with

Lake Peachtree, the boat traffic on the St. Charles Pool originates from a number of docks and

launches. See Peruzzi, 567 S.E.2d at 16. Moreover, according to Officers Siedsma and

Schreiber, the area is popular with recreational boaters and has heavy boat traffic. It is suitable

for “cruising around,” as Yeomans testified. There were no “lane lines” or “buoy markers,”

and the officers were in a 14-foot boat. A 14-foot boat could not “block” a 200-yard-wide river,

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nor could several boats for that matter. Similarly, a small boat could not allow for a serviceable

stationary checkpoint.

¶ 30 Although the Court in Villamonte-Marquez suggested that fixed checkpoints might be

practical in some inland waterways such as “rivers, canals, and the like,” which are “more

analogous to roads” than a waterway offering access to the open sea (Villamonte-Marquez, 462

U.S. at 589), we do not have a roadway-like waterway that is amenable to fixed checkpoints or

roadblocks in this case. Instead, we have a wide river, bordered by two dams located a number

of miles apart, that was used for recreational boating and had no established paths of travel.

Surely a fixed checkpoint might be feasible in a river or canal that is no wider than a road and

has fixed paths of travel, but a checkpoint in the St. Charles Pool, which far exceeds a roadway

in size, would not be practical. See Eppinette, 838 So. 2d at 192 (“Lakes and waterways are

different than 60-foot highway right-of-ways and do not easily lend themselves to stationary

checkpoints.”). More pertinent to our case is the language from Villamonte-Marquez that “no

reasonable claim can be made that permanent checkpoints would be practical on waters such as

these where vessels can move in any direction at any time and need not follow established

‘avenues’ as automobiles must do.” Villamonte-Marquez, 462 U.S. at 589. The same rationale

applies to the 200-yard-wide St. Charles Pool. Moreover, as the Court in Villamonte-Marquez

reasoned, fixed checkpoints on a body of water larger than a canal or narrow river would be

easy to avoid. Villamonte-Marquez, 462 U.S. at 589. The court in Schenekl explained:

“Some boaters dock their boats at their homes rather than using public docks or boating

ramps. If checkpoints were established only at public docks, lakeside residents would

be forever immune from compliance with boating regulations. Even if checkpoints at

docks were established, it would be an ineffective mechanism for enforcement,

because a boater could comply with regulations while at the dock but be in

noncompliance out on the lake.” Schenekl, 30 S.W.3d at 415-16.

The same rationale is applicable here. In sum, we agree with the court’s statement in Peruzzi

that “[a] roadblock is clearly infeasible and the emphasis in this case is on the procedural

aspects of the stop.” Peruzzi, 567 S.E.2d at 16-17.

¶ 31 We further agree with Peruzzi that, although a fixed checkpoint or roadblock was not

feasible in this case, it nevertheless is appropriate to apply an analysis similar to the one the

Illinois Supreme Court in Bartley applied to motor-vehicle checkpoints. In applying such an

analysis, the constitutionality of the boat safety stop at issue requires “balancing the public

interest against the objective and subjective intrusion resulting from the stop.” Bartley, 109 Ill.

2d at 285.

¶ 32 Regarding the public interest served by the boat safety stop conducted by Officers Siedsma

and Schreiber, the Illinois General Assembly, in passing the Act, provided that “[i]t is the

policy of this State to promote safety for persons and property in and connected with the use,

operation and equipment of vessels and to promote uniformity of laws relating thereto.” 625

ILCS 45/1-1 (West 2010). The State’s interest in boating safety is akin to its interest in

motor-vehicle safety. See People v. Wells, 241 Ill. App. 3d 141, 144 (1993) (upholding a safety

checkpoint designed to check for improper lighting, seat belt violations, and expired license

plates). We have no hesitation in concluding that the State’s interest is important enough to

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justify some level of intrusion on the unfettered movement of boaters. See Bartley, 109 Ill. 2d

at 285 (noting that the problem of drunken driving is serious enough to “justify some intrusion

on the unfettered movement of traffic in order to reduce alcohol-related accidents and deter

driving under the influence”). The question becomes whether the intrusion in this case was

minimal enough that it did not outweigh the State’s interest. See Bartley, 109 Ill. 2d at 288.

¶ 33 Regarding the objective intrusiveness occasioned by the boat safety stop conducted by

Officers Siedsma and Schreiber, the focus of the inquiry is on the physical intrusion caused by

the stop, which “is measured by such factors as the length of the stop, the nature of the

questioning, and whether a search is conducted.” Bartley, 109 Ill. 2d at 281-82.

¶ 34 Beginning with the nature of the questioning, it is undisputed that Officers Siedsma and

Schreiber stopped defendant’s boat, and the other 20 to 25 boats they stopped that evening,

pursuant to section 2-2(a) of the Act. The officers asked to see defendant’s safety equipment

and registration. According to Officer Siedsma, when conducting boat safety checks pursuant

to the Act, the officers would “stop vessels and check for life jackets, *** fire extinguishers,

sounding devices, or a horn or a whistle, [and] valid registration.” Officer Schreiber testified to

checking the same items, all of which the Act requires. See 625 ILCS 45/3-1 to 3-14 (West

2010) (requiring that boats be properly registered); 625 ILCS 45/4-1 (West 2010) (requiring

that boats contain personal flotation devices); 625 ILCS 45/4-4 (West 2010) (requiring a

whistle or horn); 625 ILCS 45/4-5 (West 2010) (requiring a fire extinguisher). Checking for a

boater’s registration and for these few specific items of safety equipment is akin to checking

for motor-vehicle violations such as improper lighting, seat belt violations, or expired license

plates and driver’s licenses (Wells, 241 Ill. App. 3d at 144). Such questioning is brief and

straightforward and concerns items that are easily produced.

¶ 35 Next, the officers did not search defendant’s boat. After the officers hailed defendant’s

boat and identified themselves as conservation officers, defendant voluntarily showed the

officers these items. The officers did not need to board defendant’s boat, and defendant was

able to show the officers the requested items “pretty much from where he was seated.” The

stop involved a purely visual inspection. Furthermore, it was approximately 6:45 p.m. on

July 9, which means that it was daylight and the officers would not have been required to use

flashlights to view defendant’s equipment.

¶ 36 Turning to the length of the stop of defendant’s boat, although the record does not reveal

the exact length of the stop, the record suggests that it was not great. The goal of the officers’

operation was limited. They were checking for registration and for three categories of boat

safety equipment–personal flotation devices, a sounding device, and a fire extinguisher. The

officers stopped 20 to 25 vessels between 2 p.m., when they put their boat in the water, and

6:45 p.m., when they hailed defendant’s boat. The limited goal of the operation and the number

of stops conducted within a relatively short period of time suggest that the length of each stop

was short. In the case of the stop of defendant’s boat, it was only after the officers observed

numerous empty alcoholic beverage containers and defendant’s glassy eyes and slurred speech

that they developed reasonable suspicion that defendant was intoxicated and prolonged the

stop beyond its original limited purpose. See People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000)

(“[An] initial stop may be broadened into an investigative detention *** if the officer discovers

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specific, articulable facts which give rise to a reasonable suspicion that the defendant has

committed, or is about to commit, a crime.”). Until that point, however, defendant had simply

shown the officers his registration and safety equipment from where he was seated, which

would not have taken long.

¶ 37 In sum, we know that the nature of the officers’ questioning was not intrusive and that no

search was conducted. Although we do not know the exact length of the stop of defendant’s

boat, the evidence presented at trial demonstrates that the length of the stop was brief. Based on

the record before us, we conclude that the objective intrusion in this case was minimal.

¶ 38 We next turn to the degree of subjective intrusion occasioned by the boat safety stop. The

court in Bartley described the level of subjective intrusion as the “crucial question” in

assessing the constitutionality of a DUI roadblock. Bartley, 109 Ill. 2d at 288. Subjective

intrusion refers to the psychological intrusion caused by a stop, which relates to the generating

of concern, fright, or annoyance on the part of citizens. Bartley, 109 Ill. 2d at 282. There is no

“ironclad formula” for assessing the level of subjective intrusion. Bartley, 109 Ill. 2d at 289. As

we discussed above, the court in Bartley looked for guidance to factors considered by

out-of-state courts. See Bartley, 109 Ill. 2d at 289. The overarching goal is to determine

“whether the field officers [were] acting with unbridled discretion.” Bartley, 109 Ill. 2d at 289.

This ensures that the “fundamental evil” of the roving patrol is avoided. Bartley, 109 Ill. 2d at

288.

¶ 39 Here, the officers’ testimony that they stopped every boat they saw and stopped between 20

and 25 boats before defendant’s boat indicates that the operation was systematic, such that the

officers’ discretion was limited. See Peruzzi, 567 S.E.2d at 16 (noting that the rangers’ goal of

conducting “ ‘safety checks of every boat on the lake’ ” limited their individual discretion in

the process). Officer Schreiber testified that the officers stopped defendant’s boat because the

officers had neither seen nor stopped the boat previously that evening, which shows that the

decision was not arbitrary but part of the officers’ systematic efforts to stop every boat they

saw. It further suggests that defendant was not singled out. The stop did not have the hallmarks

of a stop made with unfettered discretion, such as a stop made on a “nonsystematic ‘spot

check’ basis” (Bartley, 109 Ill. 2d at 291 (quoting State v. Marchand, 706 P.2d 225, 227

(Wash. 1985))) or on a “discretionary spot check[ ]” or a “sporadic and random” basis (Prouse,

440 U.S. at 657-58). The officers’ reason for stopping defendant’s boat stands in stark contrast

to the rationale offered by the officer in Prouse: “ ‘I saw the car in the area and wasn’t

answering any complaints, so I decided to pull them off.’ ” Prouse, 440 U.S. at 650-51. By

stopping every boat they saw, the officers effectively were eliminating their discretion

regarding which boats to stop. See McLendon v. State, 945 So. 2d 372, 381 (Miss. 2006)

(“[W]hen every vehicle traveling through the roadblock is stopped, as opposed to a random

stopping of only some vehicles, the officers’ discretion has been effectively removed ***.”);

see also State v. Cloukey, 486 A.2d 143, 146-47 (Me. 1985) (upholding the constitutionality of

a roadblock where all vehicles were stopped, even though there was no written policy and the

decision to establish the roadblock was not made by supervisory personnel); Simmons v.

Commonwealth, 380 S.E.2d 656, 660 (Va. 1989) (Thomas, J., dissenting, joined by Whiting,

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J.) (“[S]topping all cars at a roadblock satisfies the Supreme Court’s concerns regarding

limitations on intrusive police conduct and restraints on police discretion.”).

¶ 40 Further, we know that Officers Siedsma and Schreiber were conducting what they referred

to as either “boat patrol” or “routine boat patrol.” According to both officers, boat patrol meant

checking for registration and for specific items of safety equipment pursuant to the authority of

the Act. Officer Siedsma’s description of what constituted “boat patrol” was in the present

tense–“[w]e check for valid registration,” “we stop vessels and check for life jackets, *** fire

extinguishers, *** a horn or a whistle,” “[t]hose are the main things that we look for”–which

suggests that the boat safety checks were part of a regular operation. Officer Schreiber

explained that they would hail a boat by pulling up very close to the boat, identifying

themselves as conservation officers, and asking the operator of the boat to put his boat in

neutral. The officers’ manner of interacting with defendant was consistent with the customary

practices they described. The officers hailed defendant’s boat in the manner described by

Officer Schreiber. They then identified themselves as conservation officers. The officers then

asked defendant to show his registration and the three specific types of safety equipment that

the officers routinely checked. The boat safety check conducted by the officers was indicative

not of unfettered or unconstrained discretion but of the execution of a regular and systematic

registration and safety enforcement operation.

¶ 41 Not only does the evidence demonstrate that the boat patrol operation was regular and

systematic, but it also indicates that the official nature of the operation was apparent. See

Bartley, 109 Ill. 2d at 291 (“[T]he anxiety to motorists *** is allayed if there is a sufficient

show of the official nature of the operation and if it is obvious that the roadblock in fact poses

no safety risk.”). The officers were in uniform, and Officer Schreiber described the uniform as

consisting of an identifiable shirt, pants, black work boots, a hat with a star emblem

representing law enforcement, and a life jacket with a star on it. Yeomans testified that, when

the officers pulled over their boat, he and defendant “realized they were uniformed DNR

[Department of Natural Resources] officers.” Although the officers’ boat was unmarked, the

officers testified that it was a small, 14-foot, tiller-operated boat. Thus, the uniformed officers

were in the open and visible to the boating public. Upon stopping defendant’s boat, the officers

identified themselves as conservation officers. The officers then asked to check registration

and boat safety equipment, which were legitimate requests of a clearly official nature. All of

these considerations support the conclusion that the subjective intrusion of the stop was

minimal.

¶ 42 The evidence also paints a picture of a fairly mundane and friendly interaction between

defendant and the officers, not of a jarring interaction characterized by concern, fear, or

annoyance (Bartley, 109 Ill. 2d at 282) or by an “unsettling show of authority” (Prouse, 440

U.S. at 657). The officers’ boat did not have a siren or flashing lights, and they stopped

defendant’s boat by pulling alongside it and hailing it by hand. The officers did not board

defendant’s boat, which undoubtedly reduced the level of psychological intrusion generated by

the stop. Defendant was able to show the officers his registration and safety equipment “pretty

much from where he was seated.” According to the officers, defendant was “very friendly” and

“was joking, he was happy the whole time.” Yeomans testified that the officers “were joking

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around with [defendant,] *** kind of like they were buddies with him or something” and that

defendant “was real cooperative and just doing all the things they were asking him to do.”

Again, as we stated above, the interaction occurred in daylight, which also would have tended

to decrease any anxiety generated by the stop.

¶ 43 At a minimum, the evidence the State presented at trial supports the conclusion that the

officers were not acting arbitrarily or with unbridled discretion and, therefore, that the

subjective intrusion resulting from their stop of defendant’s boat was minimal. We know from

the evidence that the boat safety checks were part of a regular and systematic operation. We

also know that the officers stopped defendant as part of their systematic efforts to stop every

boat they saw. The procedure the officers used to hail defendant’s boat and to check his

registration and safety equipment was consistent with the customary safety check procedures

the officers described. Further, the official nature of the operation was apparent, and there was

no indication that the officers’ stopping of defendant’s boat resulted in anything other than

minimal psychological intrusion. While we do not have evidence relevant to all of the factors

addressed in Bartley–such as whether the decision to conduct the boat patrol was made by

supervisory personnel (Bartley, 109 Ill. 2d at 289), whether there were preestablished or

written guidelines on how to conduct the boat safety checks (Bartley, 109 Ill. 2d at 289-90), or

whether there was advance publicity of the boat patrol operation (Bartley, 109 Ill. 2d at

291)–such factors serve as guideposts only and do not constitute an “ironclad formula”

(Bartley, 109 Ill. 2d at 289). In light of the particular facts of this case, where the officers

systematically stopped every boat they saw for the purpose of conducting a limited registration

and safety check, we conclude that the absence of evidence relevant to the remaining Bartley

factors does not undermine our conclusion that the officers’ stop of defendant’s boat was only

minimally intrusive.

¶ 44 The dissent suggests that it is “naive” not to conclude that the officers “were stopping boats

and inspecting them for any and all violations that would be uncovered by plain-view

observations.” Infra ¶ 63. Apparently, the dissent is implying that the officers’ stop of

defendant’s boat was pretextual, but defendant never challenged the stop as pretextual in the

trial court or on appeal. The defendants in Villamonte-Marquez attempted to challenge the

seizure of their boat as pretextual (Villamonte-Marquez, 462 U.S. at 584 n.3), but the Court

“flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal

justification” (Whren v. United States, 517 U.S. 806, 812 (1996) (discussing this aspect of

Villamonte-Marquez)). Citing Villamonte-Marquez and other cases, the Court in Whren wrote

that “these cases foreclose any argument that the constitutional reasonableness of traffic stops

depends on the actual motivations of the individual officers involved.” Whren, 517 U.S. at 813.

¶ 45 Furthermore, even though the officers did conduct a “plain-view observation” of the open

portions of defendant’s boat, it was not a search and did not raise fourth amendment concerns.

Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the

public, even in his own home or office, is not a subject of Fourth Amendment protection.”); see

also United States v. Lee, 274 U.S. 559, 563 (1927) (“[N]o search of the high seas is shown.

*** It is not shown that there was any exploration below decks or under hatches. For aught that

appears, the cases of liquor were on deck and, like the defendants, were discovered before the

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motorboat was boarded.” (Emphases omitted.)). The only governmental action at issue here is

the officers’ seizure of the boat, which, as we concluded, was part of a regular and systematic

boat safety enforcement operation.

¶ 46 The dissent also maintains that the majority “does not place any limitation on boat stops.”

(Emphasis in original.) Infra ¶ 58. Our analysis of the evidence in this case, which was not as

“scant” as the dissent suggests (infra ¶ 58), forecloses this conclusion. The officers here briefly

and systematically stopped every boat they saw for the limited purpose of checking for valid

registration and boat safety equipment. Nothing in our holding condones random,

nonsystematic, suspicionless seizures of individual boats by officers with unbridled discretion.

Had these officers not stopped defendant’s boat as part of a regular and systematic boat safety

enforcement operation, the seizure likely would not have passed constitutional muster. But that

is not the case before us.

¶ 47 Based on the evidence that the State presented at trial, which was uncontested by

defendant, we cannot say that the trial court erred in denying defendant’s motion to quash and

suppress or his motion to reconsider. Defendant bore the burden of proof of establishing that

the stop of his boat was unreasonable, but presented no evidence beyond the stipulated facts,

which merely made a prima facie case of an unreasonable seizure. The evidence that the State

presented at trial was sufficient to counter defendant’s prima facie case. See Gipson, 203 Ill. 2d

at 308 (reversing the trial court’s grant of the suppression motion where the State countered the

defendant’s prima facie case with evidence of a proper inventory search and the defendant

offered nothing to show that the search had been improper). Not only was a “waterway

roadblock” or fixed checkpoint not a viable alternative on the St. Charles Pool, but also the

State’s important interest in promoting boating safety outweighed the minimal objective and

subjective intrusions occasioned by the officers’ stop of defendant’s boat.

¶ 48 CONCLUSION

¶ 49 The judgment of the circuit court of Kane County is affirmed.

¶ 50 Affirmed.

¶ 51 JUSTICE McLAREN, dissenting.

¶ 52 I respectfully dissent because I believe that the State has failed to counter defendant’s

prima facie case. I agree that the standard of review is de novo. However, I do not believe that

the facts that the majority alludes to rebut the prima facie case. Put another way, I opine that

the record does not establish the lack of unbridled discretion on the part of the officers as to

who will be seized and where, how, and when the seizure will be imposed.

¶ 53 The majority considers Villamonte-Marquez with regard to the facts in this case. Many of

the factors relied on in that case are not extant here. This case does not involve possible or

probable smuggling, importing contraband, illegal aliens, or cargo. Furthermore, the Fox River

is not akin to the open sea so as to establish that a “roadblock” is impractical. There is nothing

to suggest that, on this relatively small portion of the Fox River, the officers would not have

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been capable of spotting all vessels that might come from a boat landing or dock. The channel

is 200 yards wide. The majority has taken the curious position that checkpoints are not feasible

except in instances where a river is configured as a road. There is support in neither precedent

nor logic to suggest that, as a matter of law, checkpoints are feasible only on rivers that are 40

feet wide or less. There is no explanation why the officers could not have set up a checkpoint in

the middle of the channel and stopped every passing boat by using a siren or a bullhorn,

whether in a marked or unmarked boat. More to the point, why were the officers in an

unmarked boat?

¶ 54 The majority, referencing Villamonte-Marquez, opines that the documentation

requirements for boats are more extensive and complex than typical motor-vehicle license

requirements. I submit that there is no support in the record for such a conclusion. I believe that

a vessel on the high seas, especially one that carries cargo and a manifest, is not comparable to

a recreational boat on a dammed river several hundred yards in width. Not only are the vessels

in different milieus, but they have different purposes and characteristics. Based upon the

evidence presented, there is nothing to suggest to me that the registration requirements for

these recreational vehicles are so substantially different from those for automobiles as to

warrant a departure from the analysis applied to motor-vehicle roadblocks. The intrusion is no

less intrusive than the intrusion imposed with roadblocks.

¶ 55 The majority decides to apply Peruzzi to the limited facts in this case. I submit that there

are so few facts in this case that applying Peruzzi is nothing more than applying the holding in

the case without actually comparing the facts in the two cases. As the Georgia Supreme Court

related:

“Further, the rangers in this case were conducting safety checks in substantial

accord with the five factors identified by this court in Brent v. State, 270 Ga. 160, 510

S.E.2d 14 (1998). The decision to conduct safety and registration inspections on Lake

Peachtree during the holiday was made by the Fayette County Marshal, not the officers

conducting the inspections. The rangers goal was to ‘do safety checks of every boat on

the lake,’ limiting their individual discretion in the process. The rangers were in

uniform and in boats clearly marked as ‘DNR Law Enforcement.’ Unlike cars traveling

upon a public road, boats on an open body of water such as Lake Peachtree originate

from a large number of docks and launches and need not follow any particular path. A

roadblock is clearly infeasible and the emphasis in this case is on the procedural aspects

of the stop.” Peruzzi, 567 S.E.2d at 16-17.

Unlike in the Peruzzi case (involving a lake of undefined dimensions), there is little, if

anything, to suggest that the five factors were covered in this case to allow proper

consideration of the nature and extent of the intrusion. The facts in this case were that this was

a “routine patrol” via an unmarked boat without warning or communication equipment, on a

river 200 yards wide, and nothing more.

¶ 56 As the court related in Carr, “the practicality of checkpoints either at docks or marinas or

on the water *** will depend on the specific body of water.” Carr, 173 Ohio Ct. App. 3d 436,

2007-Ohio-5466, 878 N.E.2d 1077, at ¶ 23. There is nothing in this record from which the

majority may conclude that the State has established a constitutional basis for the kind of

- 17 -

seizure implemented in this case. There is nothing to suggest that there were numerous docks,

marinas, or boat landings to support the bald conclusion that a fixed checkpoint was not a

viable alternative. The majority’s unsupported conclusion that there can be little doubt as to the

number of access points assumes the absurdity that the absence of evidence can undoubtedly

establish a declarative conclusion. The majority creates strawmen to establish the

impracticality of a checkpoint on a waterway 200 yards wide. Apparently, the majority

assumes that buoys, markers, or the placement in the middle of the channel of a marked boat

with a siren and a megaphone would be impractical. But this speculation is neither my function

nor the majority’s function. We are supposed to decide the case based upon the facts of record,

and the majority is essentially bootstrapping its holding by addressing hypotheticals that

support its holding while disregarding hypotheticals that do not support its holding. Who

decided what the size of the boat should be? Who decided whether it should be unmarked or

marked? Who decided whether the DNR would make its presence known in ways that would

identify itself to boaters or would not? Why no siren or even a bullhorn? The bottom line is that

the majority, instead of looking at the dearth of facts establishing a lack of unbridled discretion,

merely speculates that the unknown facts establish the five factors in Peruzzi and the necessity

defined in Villamonte-Marquez.

¶ 57 The majority cites to Schenekl for the proposition that checkpoints would be easy to avoid.

That may be true, but the State failed to prove or even present evidence to establish a basis for

the majority to so conclude.

¶ 58 The majority also concludes that the stop was minimal as to time. Minimal is a relative

term and the stop appears to have taken no less than the amount of time it would take to

conduct a registration and equipment check of a motor vehicle. Assuming that each stop was

the same and that the stops occurred in instantaneous succession, the time involved was 11 to

14 minutes. Had there been a checkpoint or a marked boat or a megaphone used to give

advance warning, the stops could have been even shorter, as the boaters could have been

prepared to display the registration and paraphernalia. In any event, the length of the stop does

not establish that the officers acted without unbridled discretion (the fundamental evil). Surely

it is not evident that any factors were presented for the trial court to even rule upon.

Additionally, unlike in Peruzzi, the majority does not place any limitation on boat stops;

indeed, because here the evidence is so scant, the majority is essentially holding that if a stop is

done as part of a “routine patrol” it is constitutional.

¶ 59 Contrary to what the majority opines, I do not believe that the expectation of privacy is

attenuated by characterizing the activity as recreation rather than necessity.

¶ 60 As stated in Carr, the analysis is based upon the specific facts in each case. The specific

facts in this case are so minimal that they virtually encompass any scenario other than racial

profiling. In my opinion the State has not presented sufficient evidence for us to effectively

balance the interests of the individual and the State. Also, there was no evidence to establish

the reasonableness of this intrusion in lieu of some less intrusive method. Simply put, there

was a dearth of evidence to properly conclude that the intrusion was worthwhile and was based

upon accepted factors used to determine the constitutionality of applying a statute that gives

the State carte blanche to intrude upon any boating activity and seize any person.

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¶ 61 The majority discusses the systematic inspection of all the boats the officers saw.

Apparently, there were no boats tied up to docks or in cradles. If the officers had seen those

boats and not stopped to check them, then they did not inspect all boats they saw. However, the

record does not reflect whether there were even docks on this portion of the river, so it is

speculative to suggest what they saw. But it also is speculative to suggest, as the majority does,

that a checkpoint would have been unavailing because there were multiple docks, marinas, and

public boat landings.

¶ 62 The majority essentially determines that any regular, systematic routine patrol is bereft of

unbridled discretion. I submit that a “systematic, routine patrol” pursuant to the statute is a

patrol with unbridled discretion to stop boaters, for any violation or none. According to the

majority, as long as the stops include all possible boats there is not unbridled discretion,

because they are systematic. As regards “regular” routine patrol, the majority does not explain

what regular vis-á-vis irregular routine patrol is except that one is acceptable and the other is

not. The record is lacking in relating how a regular patrol comports with the factors concerning

permissible seizures. I submit that it is inconsistent to conclude that the exercise of discretion

to stop everyone is acceptable with boats but not motor vehicles. It is merely one factor, not the

sine qua non. The fact that routine patrol is regular is an immaterial characteristic bordering

upon redundancy.

¶ 63 It would seem that, in addition to checking for safety equipment, the officers were also

inspecting for other violations of the law. To conclude that a routine patrol did not also include

plain-view inspections of every boat and operator is naive. I submit that, aside from the “main

things they look for,” these officers were stopping boats and inspecting them for any and all

violations that would be uncovered by plain-view observations. The fact that they were in an

unmarked boat establishes that their actions were not readily apparent. An officer in an

unmarked squad car is not apparent until the officer exits the squad. Contrary to the majority’s

representation, the witnesses did not testify that they knew they were being stopped by officers

in uniform or that the officers were open and visible to the boating public before they were

beside the boat. All these considerations do not suggest that the intrusion was minimal as much

as they show that the stop was abrupt and without notice. The interaction between the parties

was mundane only until the officers made a plain-view inspection of the boat.

¶ 64 The majority adds that the fact that it was daylight tended to decrease any anxiety

generated by the stop. There is no citation to authority and I am not aware of any study that

implies, let alone determines, that daylight stops are less intrusive, onerous, or anxious.

¶ 65 The majority decides that the law was not unconstitutional as applied to these facts.

Unfortunately, the facts are so minimal that they fail to show that the officers were limited by

the strictures of what constitutes a reasonable stop with minimal discretion. Most of the

conclusions drawn by the majority are conclusions based upon facts that are vague and

equivocal. The majority has let the State prevail when it failed to sustain its burden of rebutting

the prima facie case. With the State having failed to establish foundational facts to suggest that

the routine patrol was less than carte blanche, defendant should prevail in this case. The State

did not sustain its burden despite the majority’s declaration that it did.

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