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posted: 12/31/2013 4:56 PM

Arrest after 'routine' safety check was legal, appellate court says

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A St. Charles man has lost his appeal of a 2010 conviction for operating a watercraft while intoxicated.

The Illinois 2nd District Appellate Court ruled Dec. 27 the state's interest in promoting "safety of people and property in connection with boating" outweighed the "minimal intrusion" of a routine safety check two Illinois Conservation Police officers did July 9, 2010.

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While conducting such a check, the officers noticed empty alcohol bottles in the boat, and physical indications that the operator, Timothy S. Butorac, was intoxicated, according to the court record.

The officers were patrolling the Fox River between St. Charles and South Elgin in an unmarked 14-foot tiller-operated boat, asking operators to show registration and safety equipment.

According to the court record, while Butorac was doing so, the officers saw "numerous" empty alcohol bottles in the boat, and reported Butorac showed signs of being drunk. A Kane County jury in August 2011 convicted Butorac of operating a watercraft under the influence of alcohol. He was sentenced to 24 months of probation and 120 days in jail, but the jail sentence was stayed.

Butorac argued the search of his boat was unconstitutional because it was a waterway roadblock, similar to those done for motor vehicles, and as such similar rules for conducting suspicionless, warrantless searches should have been applied. For motor vehicles, that typically means setting up a stationary roadblock to avoid giving officers undue discretion on who to stop.

The court ruled, however, it would not have been possible for the police boat to block the 6-mile stretch of river, which is 200 feet wide at that point. There were no buoys or lane lines, and traffic could originate from "a number of" docks and launches.

"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," the opinion states.

It also ruled the stop was minimally intrusive. The officers checked 20 to 25 boats during a five-hour period. They pulled up to boats and hailed operators by hand.

Judge Robert McLaren dissented. He said the officers were looking for any violations of the law that could be uncovered by plain-view searches; questioned why the officers were using an unmarked boat and did not use a megaphone to alert boaters to the check; and said the facts presented, including specifically how many public and private docks and boat ramps there were, were insufficient to conclude whether a "roadblock" could have been used.

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