text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose LOPEZ, Defendant-Appellant.
    No. 1-15-3331
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    October 5, 2018
    Michael J. Pelletier, Patricia Mysza, and Brian E. Koch, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Gina DiVito, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 Defendant Jose Lopez was charged with driving while his license was suspended (DWLS) in violation of section 6-303(a) of the Illinois Vehicle Code ( 625 ILCS 5/6-303(a) (West 2014) ). Defendant filed a motion to quash arrest and suppress evidence, alleging that the traffic stop that led to his arrest was illegal. After an evidentiary hearing, the circuit court denied defendant's motion. Following a stipulated bench trial, defendant was convicted of DWLS and sentenced to 24 months of probation and 30 days' imprisonment. On appeal, defendant contends that the court erred in denying his motion to quash arrest and suppress evidence. Specifically, he argues that the anonymous tip relied upon by the arresting officer was unreliable and inadequate to establish reasonable suspicion of drunk driving. We reverse.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with DWLS under section 6-303(a) of the Illinois Vehicle Code (id. ), stemming from a traffic stop on August 3, 2014. Defendant moved to quash arrest and suppress evidence, alleging that the traffic stop violated his right to be free from unreasonable seizures. In response, the State filed a motion to strike defendant's motion. The State argued that, even if the arresting officer illegally seized defendant, the identity of a defendant is not evidence that can be suppressed. The circuit court denied the State's motion to strike, and the case proceeded to an evidentiary hearing on defendant's motion. The only witness who testified was Chicago police officer Reyes Martinez.

¶ 4 Officer Martinez testified that at around 8:00 p.m. on August 3, 2014, he was on duty near the intersection of Pulaski Road and 50th Street in Chicago. He received a message from another police vehicle that there "was a DUI driver heading outbound on Pulaski from 43rd Street." The vehicle was described as a black Expedition with a partial license plate number NZ 1. The driver of the Expedition was described as "a male Hispanic." Officer Martinez did not know the identity of the person who reported the alleged drunk driver, nor did he know how much time elapsed between the initial report and the eventual traffic stop.

¶ 5 Officer Martinez then spotted a black Expedition, with a license plate starting with N 211 driving southbound on Pulaski Road. Officer Martinez pulled up behind the Expedition at the intersection of Pulaski Road and 50th Street. He did not observe any traffic violations or improper lane usage. After the light turned green, Officer Martinez activated his emergency lights, and the Expedition immediately pulled over. He did not have a warrant.

¶ 6 When he approached the Expedition, Officer Martinez saw that defendant was an "occupant" of the vehicle. Defendant handed Officer Martinez his state identification card. By "reading through that state ID," Officer Martinez determined that defendant's license was not valid. He then arrested defendant for driving without a valid license. Officer Martinez did not conduct any breath test or field sobriety tests on defendant.

¶ 7 The circuit court denied defendant's motion to quash arrest and suppress evidence, finding that Officer Martinez "had reasonable suspicion to conduct an investigatory stop." Defendant filed a motion to reconsider, which the court denied. The case proceeded to a bench trial in which the parties stipulated that Officer Martinez would testify as he had in the evidentiary hearing. The State presented a copy of defendant's driving abstract as evidence that his license was suspended at the time of the traffic stop. The court found defendant guilty and sentenced him to 24 months' probation and 30 days' imprisonment. This appeal followed.

¶ 8 ANALYSIS

¶ 9 Defendant contends that the circuit court erred in denying his motion to quash arrest and suppress evidence because Officer Martinez lacked reasonable, articulable suspicion of criminal activity to perform the traffic stop.

¶ 10 When a trial court's ruling on a motion to suppress involves factual determinations or credibility assessments, the court's findings will not be disturbed on review unless they are against the manifest weight of the evidence. People v. Grant , 2013 IL 112734, ¶ 12, 368 Ill.Dec. 205, 983 N.E.2d 1009. However, we review de novo the court's ultimate legal ruling to grant or deny the motion. Id.

¶ 11 To prevail on a motion to suppress, "[t]he defendant must make a prima facie case that the police acted without a warrant and that he was doing nothing unusual (i.e. , indicative of criminal activity) to justify the intrusion by the police at the time of the stop or arrest. Once the defendant has made this showing, the burden of going forward with the evidence to justify the intrusion shifts to the State." People v. Ertl , 292 Ill. App. 3d 863, 868, 226 Ill.Dec. 955, 686 N.E.2d 738 (1997). There is no dispute here that defendant made a prima facie case that Officer Martinez acted without a warrant and that defendant did nothing unusual, such as commit any moving violations, to justify the stop. The State, therefore, had the burden of justifying the traffic stop.

¶ 12 Both the fourth amendment to the United States Constitution, which applies to the states via the fourteenth amendment ( Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ), and article I, section 6, of the Illinois Constitution of 1970, guarantee the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV ; Ill. Const. 1970, art. I, § 6. Police-citizen encounters are divided into three tiers: arrests, which must be supported by probable cause; investigatory or Terry stops, which must be supported by reasonable, articulable, suspicion of criminal activity; and encounters that involve no coercion or detention and thus do not implicate constitutional rights. See Grant , 2013 IL 112734, ¶ 11, 368 Ill.Dec. 205, 983 N.E.2d 1009 ; People v. Hackett , 2012 IL 111781, ¶ 20, 361 Ill.Dec. 536, 971 N.E.2d 1058 ; People v. Hopkins , 235 Ill. 2d 453, 471, 337 Ill.Dec. 465, 922 N.E.2d 1042 (2009).

¶ 13 A police officer may conduct a brief investigatory stop of a person if the officer can point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant the stop. Hackett , 2012 IL 111781, ¶ 20, 361 Ill.Dec. 536, 971 N.E.2d 1058 ; 725 ILCS 5/107-14, 108-1.01 (West 2014). We judge the stopping officer's conduct by an objective standard, considering whether the facts available to the officer at the moment of the stop justify the action taken. Hackett , 2012 IL 111781, ¶ 29, 361 Ill.Dec. 536, 971 N.E.2d 1058. Vehicle or traffic stops are treated as Terry stops, so they are proper when the stopping officer has a reasonable and articulable suspicion that a traffic violation or crime has occurred. Id. ¶ 20.

¶ 14 When analyzing whether an informant's tip is sufficient to justify an investigatory stop, the court first assesses the reliability of the tip. Navarette v. California , 572 U.S. 393, 397-99, 134 S.Ct. 1683, 1688, 188 L.Ed.2d 680 (2014). If the tip is found to be reliable, the court then analyzes whether the tip "created reasonable suspicion of an ongoing crime * * * as opposed to an isolated episode of past [wrongdoing]." Id. at 401, 134 S.Ct. at 1690.

¶ 15 This court has had many opportunities to review the question of how reliable and detailed an informant's tip about an allegedly drunk driver must be to justify an investigatory stop. See, e.g. , Village of Gurnee v. Gross , 174 Ill. App. 3d 66, 69, 123 Ill.Dec. 866, 528 N.E.2d 411 (1988) ("reckless driving complaint, standing alone, did not provide articulable facts sufficient to justify an investigatory stop"); Village of Mundelein v. Minx , 352 Ill. App. 3d 216, 222, 287 Ill.Dec. 321, 815 N.E.2d 965 (2004) (finding "report[ ] that defendant was 'driving recklessly,' without indicating what observations led [the tipster] to this conclusion, e.g. , whether defendant was speeding, running red lights, weaving between lanes, etc." insufficient to justify stop); People v. Shafer , 372 Ill. App. 3d 1044, 1054, 311 Ill.Dec. 359, 868 N.E.2d 359 (2007) (finding tip from restaurant employee about a customer who was "creat[ing] a disturbance and was intoxicated" at drive-thru window reliable); People v. Meo , 2018 IL App (2d) 170135, ¶ 3, 422 Ill.Dec. 82, 102 N.E.3d 751 (finding tip by store clerk that customer " 'had driven up to the front of the building, hitting the curb, going over the curb, and * * * almost going into the building' " sufficient). However, most of our cases predate the United States Supreme Court's decision in Navarette , and none of our cases after Navarette rely heavily upon it. Because Navarette 's issue is identical and its facts extremely similar to those this case, we review that case at length.

¶ 16 In Navarette , the police received a 911 call reporting a pickup truck of a specific make, model, color, and license plate number that allegedly "[r]an the reporting party off the roadway." (Internal quotation marks omitted.) Navarette , 572 U.S. at 395, 134 S.Ct. at 1687. The report indicated that the truck was last seen heading southbound around a specific mile marker on Highway 1, approximately five minutes before the report was relayed to the eventual arresting officers. Id. at 394-97, 134 S.Ct. at 1686-87. Approximately 13 minutes later, a police officer observed a truck matching the description from the report and followed it for 5 minutes before pulling it over. Id. at 395-97, 134 S.Ct. at 1687. During the five minutes that the officer followed the truck, he did not observe any moving violations or "additional suspicious conduct." Id. at 413, 134 S.Ct. at 1691. As the police approached the stopped truck, they smelled marijuana. Id. at 395-97, 134 S.Ct. at 1687. Upon searching the truck, the police found 30 pounds of marijuana. Id. at 395-97, 134 S.Ct. at 1687.

¶ 17 The Navarette defendants argued that the police officer lacked reasonable suspicion to conduct the traffic stop. Id. at ----, 134 S.Ct. at 1687. Although the tip was anonymous and the police officer did not observe any suspicious or illegal behavior, the Court found that there was adequate reasonable suspicion for the officer to conduct an investigatory stop. Id. at 402-06, 134 S.Ct. at 1691-92.

¶ 18 The Court made three observations in analyzing the reliability of the tip. First, "[b]y reporting that she had been run off the road by a specific vehicle * * * the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving." Id. at 399, 134 S.Ct. at 1689. A firsthand basis for knowledge of the alleged wrongdoing lent considerable weight to the reliability of the tip. Id. at 399-400, 134 S.Ct. at 1689. Second, the contemporaneous nature of the tip made it more reliable. Id. at 399-400, 134 S.Ct. at 1689. The timeline of events and distance between the alleged act of reckless driving and the location where the police first identified the vehicle created the inference that the tip was made based on contemporary knowledge. Id. at 399-400, 134 S.Ct. at 1689. Finally, the Court found that the very nature of the 911 emergency system lent some support to the reliability of the tip. Id. at 399-400, 134 S.Ct. at 1689. Because 911 calls are recorded, allowing callers to be identified by voice, and 911 callers can be located geographically and by telephone number, the Court concluded that "anonymous" tips submitted by calling 911 are more reliable than other anonymous tips because "a false tipster would think twice before using such a system." Id. at 401, 134 S.Ct. at 1689-90.

¶ 19 Having found that the tip was reliable, the Court then analyzed whether the tip "created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness." Id. at 401, 134 S.Ct. at 1690. The Court explained that certain dangerous behaviors are recognized as indicia of drunk driving, such as swerving or "weaving all over the roadway." (Internal quotation marks omitted.) Id. at 402, 134 S.Ct. at 1690. A tip alleging that sort of behavior, the Court reasoned, "generally would justify a traffic stop on suspicion of drunk driving." Id. at 402, 134 S.Ct. at 1691. Critically, the tipster in Navarette "reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver's conduct: running another car off the highway." Id. at 403, 134 S.Ct. at 1691.

¶ 20 This case is very similar. As in Navarette , this case involves an anonymous tip including details such as the car model, color, location, and direction. Both tips also included a license plate number, albeit a partial one in this case. When the police responded in both cases, they identified the subject vehicle travelling on the indicated road, in the indicated direction. And in both cases, the police initiated an investigatory stop without observing any violations or suspicious activity.

¶ 21 These cases differ, however, in both the reliability and sufficiency of the tip. The tip in this case lacks some of the indicia of reliability found in Navarette . The Navarette tipster specifically alleged that she was an eyewitness to the driver's dangerous conduct. Id. at 399-400, 134 S.Ct. at 1689. In this case, Officer Martinez testified that the tip was about "a DUI driver," with no specific allegations as to what the tipster witnessed or had particular knowledge of to conclude that the driver of the black Expedition was intoxicated. Instead of specific allegations of wrongdoing and a basis for the tipster's knowledge of the wrongdoing, the tip contained nothing more than a conclusory allegation of drunk driving and no alleged basis for that knowledge.

¶ 22 Additionally, nothing in the record indicates the source of the tip at issue here. While the tip in Navarette was made through the 911 emergency system and was therefore somewhat more likely to be reliable than otherwise, there is no evidence here that the tipster contacted the police through an emergency number. The State asks us to assume that the tipster was a concerned citizen and to give more weight to the reliability of the tip for that reason. But where there is no evidence that the tipster gave a name or contacted the police through an emergency number, "the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police." People v. Smulik , 2012 IL App (2d) 110110, ¶ 8, 357 Ill.Dec. 820, 964 N.E.2d 183.

¶ 23 In this case, the details corroborated by Officer Martinez included the general location, direction, make, and color of the vehicle. The partial license plate number NZ1 was also corroborated; a mistake in identifying a "2" as a "Z" is understandable, particularly if the informant identified the plate while the vehicle was moving. See People v. Henderson , 266 Ill. App. 3d 882, 887, 203 Ill.Dec. 971, 640 N.E.2d 1344 (1994) (holding that a "U" confused with an "L" in a license plate number does not remove probable cause). These details are adequate to establish that the police have identified the person whom the tipster meant to accuse. "Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Florida v. J.L. , 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ; Shafer , 372 Ill. App. 3d at 1050, 311 Ill.Dec. 359, 868 N.E.2d 359 (holding that tip must provide adequate details to identify the proper vehicle and contain sufficient detail to permit reasonable inferences that the caller actually witnessed an ongoing offense).

¶ 24 Navarette was a "close case", but the Court found that, under the totality of the circumstances, the tip had sufficient indicia of reliability. Navarette , 572 U.S. at 404, 134 S.Ct. at 1692. Because the indicia of reliability in this case fall well below those in that case, particularly with regard to the source of the tipster's alleged knowledge of an ongoing offense, we find that the tip was not reliable and therefore could not justify the traffic stop.

¶ 25 Even if we had found that the tip was reliable, it would still have been insufficient to justify the traffic stop. That is because "a reliable tip will justify an investigative stop only if it creates reasonable suspicion that 'criminal activity may be afoot.' " Id. at 401, 134 S.Ct. at 1690 (quoting Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). The tip, therefore, must include specific allegations of observed violations or conduct that led the informant to the conclusion that the driver was involved in an ongoing crime. Shafer , 372 Ill. App. 3d at 1050, 311 Ill.Dec. 359, 868 N.E.2d 359. As the Eighth Circuit aptly put it, "[a] law enforcement officer's mere hunch does not amount to reasonable suspicion [citations]; a fortiori , neither does a private citizen's." United States v. Wheat , 278 F.3d 722, 732 (8th Cir. 2001).

¶ 26 In Navarette , the tipster "reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver's conduct: running another car off the highway." Navarette , 572 U.S. at 403, 134 S.Ct. at 1691. The cases relied upon by the State likewise involved tips with observations of specific conduct or violations. See Shafer , 372 Ill. App. 3d at 1047, 311 Ill.Dec. 359, 868 N.E.2d 359 (restaurant employee alleged driver " 'was causing a disturbance and was intoxicated' " at a restaurant's drive-thru); People v. DiPace , 354 Ill. App. 3d 104, 109, 288 Ill.Dec. 839, 818 N.E.2d 774 (2004) (eyewitnesses gave "a specific description of the erratic driving they had witnessed"); Wheat , 278 F.3d at 732 ("anonymous caller specifically alleged that he had personally observed several different traffic violations involving erratic driving"). In the cases relied upon by defendant, that level of specific detail is crucially absent. See Minx , 352 Ill. App. 3d at 222, 287 Ill.Dec. 321, 815 N.E.2d 965 ("although the citizen-informant had an indicia [sic] of reliability, because of the lack of detail provided, [the police officer] lacked reasonable suspicion at the time he instituted the investigatory stop"); City of Lake Forest v. Dugan , 206 Ill. App. 3d 552, 555, 151 Ill.Dec. 474, 564 N.E.2d 929 (1990) ("officer did not testify to any specific facts which had been reported to him or to the Highwood police department which might support the conclusion about the driver [being intoxicated]").

¶ 27 The facts of Dugan are particularly similar to those in this case. The tip in that case described the driver as an intoxicated white man and the car as "a white Honda bearing Illinois license plate number OR 6920," leaving a specified gas station. Dugan , 206 Ill. App. 3d at 554, 151 Ill.Dec. 474, 564 N.E.2d 929. The level of the detail in this case is virtually identical: the make, color, (partial) license plate number, and general location of the car, coupled with the race and gender of the driver. Those details, however, are entirely innocent. The critical allegation that the driver was "intoxicated" was neither specific nor corroborated. Here, the alleged illegal conduct is equally conclusory: "a DUI driver." There is no allegation of specific behavior or interactions that could have led to the conclusion that the driver was intoxicated. Officer Martinez did not observe any violations or even suspicious behavior by defendant. Without any specific allegation or indication of wrongdoing, Officer Martinez could not have had a reasonable suspicion that defendant was engaged in an ongoing crime. Id. at 555-56, 151 Ill.Dec. 474, 564 N.E.2d 929 ("The fact that [the police officer] observed a white Honda, license number OR 6920, in the area specified by the informant did not sufficiently corroborate the complaint to justify the stop [citations], because the crucial part of the complaint was that the driver was intoxicated.").

¶ 28 Because the tip was neither reliable nor sufficiently detailed to justify a traffic stop, we hold that Officer Martinez violated defendant's constitutional right to be free from unreasonable seizure.

¶ 29 Our supreme court has held that the "fruit of the poisonous tree" doctrine "is an outgrowth of the fourth amendment exclusionary rule." People v. Henderson , 2013 IL 114040, ¶ 33, 370 Ill.Dec. 804, 989 N.E.2d 192 ; see also Alderman v. United States , 394 U.S. 165, 171, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). "Under this doctrine, the fourth amendment violation is deemed the 'poisonous tree,' and any evidence obtained by exploiting that violation is subject to suppression as the 'fruit' of that poisonous tree." Henderson , 2013 IL 114040, ¶ 33, 370 Ill.Dec. 804, 989 N.E.2d 192. The exclusionary rule applies not only to physical evidence but "to any 'fruits' of a constitutional violation-whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention." United States v. Crews , 445 U.S. 463, 470, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). This rule exists to protect fourth amendment rights by deterring prohibited government conduct. People v. Sutherland , 223 Ill. 2d 187, 227, 307 Ill.Dec. 524, 860 N.E.2d 178 (2006).

¶ 30 Because Officer Martinez lacked reasonable suspicion to perform the traffic stop, that stop is a "poisonous tree," and the circuit court should have suppressed any evidence obtained from that stop. The State argues, however, that (1) Officer Martinez's actions were not flagrant or culpable enough to justify exclusion and (2) no suppressible evidence was obtained as a result of the traffic stop. We address these arguments in turn.

¶ 31 In arguing that the illegal stop was not so flagrant that the exclusionary rule should be applied, the State relies primarily on Herring v. United States , 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), and other federal cases. However, those cases analyze the federal exclusionary rule, which is interpreted more narrowly than its Illinois counterpart. People v. Gaytan , 2015 IL 116223, ¶ 52, 392 Ill.Dec. 333, 32 N.E.3d 641. In Herring , the police made an arrest pursuant to a warrant that, unbeknownst to the arresting officers, had been recalled. Herring , 555 U.S. at 137-38, 129 S.Ct. 695. The Court held that the application of the exclusionary rule would have minimal deterrent effect in such a case because the arresting officers' conduct was not sufficiently deliberate. Id. at 144-45, 129 S.Ct. 695.

¶ 32 This court had occasion to distinguish Herring in the case of People v. Estrada , 394 Ill. App. 3d 611, 333 Ill.Dec. 260, 914 N.E.2d 679 (2009). In that case, the State contended that the exclusionary rule should not be applied to suppress cocaine seized from the defendant's care during an unlawful traffic stop. Id. at 626, 333 Ill.Dec. 260, 914 N.E.2d 679. We held that because the police officer in Estrada made the decision to conduct an illegal traffic stop without reasonable suspicion, the exclusionary rule should be applied as a deterrent to future investigatory stops without reasonable suspicion. Id. at 628, 333 Ill.Dec. 260, 914 N.E.2d 679. The traffic stop in this case is more like that made in Estrada than the stop in Herring . Officer Martinez neither had probable cause nor relied in good faith on the sort of record-keeping error present in Herring . The exclusionary rule applies in this case.

¶ 33 Next, the State argues that, even if the exclusionary rule would otherwise be applicable in this case, the stop did not result in any suppressible evidence because identity-related evidence is never suppressible. For this proposition, the State relies on Immigration & Naturalization Service v. Lopez-Mendoza , 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). Specifically, the State relies on the following language in Lopez-Mendoza :

"The 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Id. at 1039, 104 S.Ct. 3479.

¶ 34 The Supreme Court made this statement in the context of addressing a challenge by the defendant "to the fact that he had been summoned to a deportation hearing following an unlawful arrest." Id. at 1040, 104 S.Ct. 3479. Lopez-Mendoza had "entered no objection to the evidence offered against him." Id. The Court cited six cases in support of its statement on the " 'body' or identity" of the defendant, all of which considered whether jurisdiction over a defendant or seized res properly existed. Id. at 1039-40, 104 S.Ct. 3479 (citing Gerstein v. Pugh , 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ; Frisbie v. Collins , 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952) ; United States ex rel. Bilokumsky v. Tod , 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923) ; United States v. Eighty-Eight Thousand, Five Hundred Dollars , 671 F.2d 293 (8th Cir. 1982) ; United States v. One (1) 1971 Harley-Davidson Motorcycle , 508 F.2d 351 (9th Cir. 1974) ; United States v. One 1965 Buick , 397 F.2d 782 (6th Cir. 1968) ). Rather than creating a new class of evidence exempt from suppression, the "body or identity" language in Lopez-Mendoza simply affirms the established principle that an illegal arrest does not necessarily bar prosecution for a crime.

¶ 35 This reading of Lopez-Mendoza is supported by the fact that the Court distinguished Lopez-Mendoza's objections from those raised in the consolidated case of Sandoval-Sanchez: "Respondent Sandoval-Sanchez has a more substantial claim. He objected not to his compelled presence at a deportation proceeding, but to evidence offered at that proceeding." Lopez-Mendoza , 468 U.S. at 1040, 104 S.Ct. 3479. Rather than reject Sandoval-Sanchez's claims on the same grounds as those of Lopez-Mendoza, the Court held that exclusionary rule does not apply to civil deportation proceedings. Id. at 1050, 104 S.Ct. 3479.

¶ 36 Although the application of the "body or identity" language in Lopez-Mendoza appears to be one of first impression in Illinois, the Florida Supreme Court addressed the issue thoroughly and persuasively. In State v. Perkins , 760 So.2d 85, 86-89 (Fla. 2000), the Florida Supreme Court held that Lopez-Mendoza did not bar the exclusion of a police officer's post-stop observations of the defendant as driver of the vehicle. In that case, the defendant was stopped illegally by the police, who then learned that his license was suspended. Id. at 85. The State conceded the illegality of the stop but argued that Lopez-Mendoza required that the trial court allow evidence obtained from the stop. Id. at 85-86. The Florida Supreme Court held that Lopez-Mendoza did not stand for the proposition that identity-related evidence was per se admissible over a fourth amendment objection. Id. at 87. The court noted that the cases cited in Lopez-Mendoza involved jurisdictional rather than evidentiary objections. Id. Further, the court observed that Lopez-Mendoza's objection to jurisdiction was treated differently by the Supreme Court than the evidentiary objection of Sandoval-Sanchez. Id. After finding that Lopez-Mendoza does not create a new category of unsuppressible evidence, the Florida Supreme Court held that "the evidence required to prosecute the charge of driving with a suspended license came directly from the exploitation of the unlawful stop" and that, therefore, the "officer's post-stop observation of the defendant behind the wheel must be suppressed." Id. at 88-89.

¶ 37 We find this analysis persuasive and, like the Florida Supreme Court, we hold that Lopez-Mendoza 's "body or identity" language applies only to personal jurisdiction, not to the suppression of identifying evidence. For the same reasons as those presented in Perkins , Officer Martinez's post-stop observation that defendant was driving the black Expedition must be suppressed. Because that observation was not made until "after [Officer Martinez] pulled over the vehicle," it is in no way attenuated from the illegal stop and is therefore suppressible. See Wong Sun v. United States , 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (holding that evidence need not be suppressed if it was obtained "by means sufficiently distinguishable to be purged of the primary taint" of illegality (internal quotation marks omitted) ). Officer Martinez did not observe defendant driving or in control of a motor vehicle until immediately after he performed an illegal traffic stop. Therefore, the circuit court erred in denying defendant's motion to quash arrest and suppress evidence.

¶ 38 One of the elements of DWLS is that the accused "drives or is in actual physical control of a motor vehicle on any highway of this State." 625 ILCS 5/6-303(a) (West 2014). The only evidence presented that defendant was driving or in actual physical control of a motor vehicle was Officer Martinez's testimony that he observed the defendant to be an "occupant of [the] vehicle." Because defendant could not have been convicted without the evidence that should have been suppressed, we reverse his conviction. See People v. Green , 358 Ill. App. 3d 456, 464, 295 Ill.Dec. 314, 832 N.E.2d 465 (2005).

¶ 39 CONCLUSION

¶ 40 Accordingly, we reverse the judgment of the circuit court.

¶ 41 Reversed.

Justices Connors and Harris concurred in the judgment and opinion.

      Although he admitted that he did not know when the tip originally came in, Officer Martinez "guessed" that two minutes passed between the time the tip was reported and the time he identified the vehicle. This guess was based on the time it would take a car to travel from 43rd Street to 50th Street. Obviously, this statement has no value for evaluating the accuracy of the tip because the guess itself assumes that the tip was accurate.

      Although it appears the tipster did give her name to the 911 dispatcher, neither she nor the dispatcher testified. Navarette , 572 U.S. at 396 n.1, 134 S.Ct. at 1687 n.1. Consequently, the 911 recording was not entered into evidence, and the Court treated the tip as anonymous. Id.

      The detail that the driver was "a male Hispanic" was not corroborated until after the stop. Officer Martinez did not testify that he saw defendant at all until after he initiated the stop. "Only the facts known to the officer at the time of the seizure can be considered in determining whether the seizure was proper-information gained after the seizure is made must be disregarded." Village of Mundelein v. Thompson , 341 Ill. App. 3d 842, 848, 276 Ill.Dec. 237, 793 N.E.2d 996 (2003).

      We note that Officer Martinez did not explicitly testify that defendant was driving or operating a motor vehicle. He did not testify that he observed defendant while driving, or even that he observed defendant in the driver's seat of the stopped Expedition. Rather, he testified that he "[found] that there was an occupant of [the] vehicle," and that the "occupant of that vehicle was Mr. Jose Lopez."


source: Caselaw Access Project

license: Public Domain

text:
    Katelin EUNJOO SEO, Appellant, v. STATE of Indiana, Appellee.
    Supreme Court Case No. 18S-CR-595
    Supreme Court of Indiana.
    FILED December 13, 2018
    Order Inviting Amicus Curiae Briefing
    On December 6, 2018, the Court granted transfer in this appeal. The case is set for oral argument on April 18, 2018 in Wabash, Indiana. The Supreme Court invites participation of amicus curiae briefing.
    Pursuant to Appellate Rule 41, any entity wishing to prepare and file a brief as amicus curiae must file a motion for leave to appear as amicus and tender its proposed brief on or before January 31, 2019. The Court encourages the submission of joint briefs. Any amicus brief must not exceed 4,200 words exclusive of the items listed in Appellate Rule 44(C), and must be accompanied by the verified statement of word count referred to in Appellate Rule 44(F).
    Appellant and Appellee may file a single response brief not exceeding 4,200 words. Any response brief must be filed on or before February 28, 2019.


author: Kirsch, Judge.

text:
    Dr. Curtis K. DEASON and Connie S. Deason, Appellants-Defendants, v. BILL R. MCWHORTER AND HEATHER MCWHORTER REVOCABLE LIVING TRUST, DATED JANUARY 24, 2003, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-PL-270
    Court of Appeals of Indiana.
    FILED September 27, 2018
    Attorneys for Appellants: Justin K. Clouser, Jeffrey M. Miller, Noel Law, Kokomo, Indiana
    Attorney for Appellee: T. Andrew Perkins, Peterson Waggoner & Perkins, LLP, Rochester, Indiana
   Kirsch, Judge.

[1] Dr. Curtis K. Deason and Connie S. Deason (together, "the Deasons") appeal the trial court's order awarding judgment in favor of the Bill R. McWhorter and Heather McWhorter Revocable Living Trust, Dated January 24, 2003, ("the Trust") for damages after the Deasons defaulted on a contract for sale of real estate. The Deasons raise several issues for our review that we consolidate and restate as: whether the trial court inappropriately awarded the Trust a remedy of foreclosure in contradiction to the language of the contract for sale of real estate.

[2] We reverse and remand.

Facts and Procedural History

[3] On March 18, 2009, the Deasons and the Trust entered into a Conditional Contract for Sale of Real Estate ("the Contract") to facilitate the Deasons' purchase of real property including a residence located at 3473 S. 150 E. in Kokomo, Indiana ("the Property") for the amount of $490,000.00. Over the course of several years, the Deasons made a total of thirty-seven installment payments of $2,923.31 each, as well as a down payment and earnest money payment of $25,500.00. Appellants' App. Vol. 2 at 81. The remaining balance on the Contract was $462,500.00. Id. The total of all installment payments towards the value of the Contract was $108,162.47. Id. The remaining balance on the Contract after all payments were applied equaled $445,442.07, approximately 4% of the total purchase price. Id. at 82.

[4] Pursuant to the Contract, the entire remaining balance owed was due in a single balloon payment on April 18, 2012. Id. at 58. The Deasons were unable to make the balloon payment and, instead, tendered a regular monthly payment, which breached the Contract. At trial, the parties' testimony diverged on the topic of whether Bill McWhorter ("McWhorter"), as trustee, was informed of the Deasons' intent to leave the Property. McWhorter testified that the Deasons never asked him about staying on the Property even though they could not pay the balloon payment and that the Deasons never told him that they would be leaving. Tr. Vol. 2 at 119-20. McWhorter testified that the only thing he told the Deasons was "we have to live by what's in the [C]ontract." Id. at 119. Curtis Deason testified that he informed McWhorter that the Deasons would be leaving and stated that McWhorter told them to leave the premises by May 18, 2012. Id. at 136-37. The Trust, through McWhorter, took possession of the Property shortly after the Deasons left on or around May 18, 2012. Id. at 59. After the Deasons moved from the Property, McWhorter had the locks changed, and he began living in the home. Id. at 121. Since May 2012, when McWhorter took possession of the Property, it has been titled in his name alone. Id. at 59, 130.

[5] On May 27, 2015, the Trust filed a complaint against the Deasons for damages resulting from the Deasons' breach of the Contract. The Trust sought foreclosure and a judgment consisting of "the outstanding unpaid principal balance, together with interest from and after the date of the default, late charges, default-related expenses and advances, reasonable attorney fees and costs of this action, and all other expenses incurred in connection with this cause." Appellants' App. Vol. 2 at 28. A bench trial was held on October 17, 2017. At trial, the Trust presented two expert witnesses to testify regarding the value of the Property, and one of the experts testified that the Property had an appraised value of $316,000.00. Tr. Vol. 2 at 38. To support their valuation of the Property, the Deasons submitted an order from McWhorter's dissolution case that ordered that the Property be listed for sale in the amount of $450,000.00 and the Trust's insurance policy on the Property. Appellants' App. Vol. 2 at 45; Tr. Vol. 2 at 127.

[6] The trial court also heard evidence of physical damage that the Trust discovered after it took possession of the Property from the Deasons. Much of this evidence came in over the Deasons' continuing objection. Additionally, the Trust offered evidence of the attorney fees it had incurred in bringing the breach of contract action. On January 11, 2018, the trial court issued its "Judgment, Findings of Fact and Conclusions of Law," which entered judgment for the Trust and against the Deasons in the amount of $153,335.24 and foreclosed and extinguished the Deasons' interest in the Property. Appellants' App. Vol. 2 at 25. The trial court reached this amount by applying the balance of the Contract purchase price, unpaid taxes, repairs, and attorney and legal fees, and then subtracting the value of the Property, which it found to be $316,000.00. Id. at 23-25. The Deasons now appeal.

Discussion and Decision

[7] When a trial court has made findings of fact, we review the sufficiency of the evidence using a two-step process. Huber v. Sering , 867 N.E.2d 698, 706 (Ind. Ct. App. 2007), trans. denied . We first determine whether the evidence supports the trial court's findings of fact, and then we determine whether those findings of fact support the trial court's conclusions of law. Id. We will set aside the findings only if they are clearly erroneous. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Campbell v. Campbell , 993 N.E.2d 205, 209 (Ind. Ct. App. 2013), trans. denied . A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. In applying this standard, we neither reweigh the evidence nor judge the credibility of the witnesses. Merrillville 2548, Inc. v. BMO Harris Bank N.A. , 39 N.E.3d 382, 389 (Ind. Ct. App. 2015), trans. denied . Rather, we consider the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. Id. To make a determination that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Kieffer v. Trockman , 56 N.E.3d 27, 33 (Ind. Ct. App. 2016).

[8] The Deasons argue that the trial court's order was clearly erroneous because it awarded the Trust both forfeiture and foreclosure remedies. They contend that the Trust, through its actions after the Deasons defaulted on the Contract, elected a remedy of forfeiture, which was the remedy warranted by the language in the Contract. They also assert that because the Trust elected a forfeiture remedy, it was barred from also seeking a remedy of foreclosure, and the trial court clearly erred when it allowed the Trust to be awarded both forfeiture and a deficiency judgment.

[9] In Skendzel v. Marshall , 261 Ind. 226, 301 N.E.2d 641 (1973), cert. denied , 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476 (1974), our Supreme Court held that in all but a few specific instances, the proper relief to be granted a vendor upon the vendee's material breach of a land sale contract is a judgment of foreclosure pursuant to Indiana Trial Rule 69(C). 261 Ind. at 240, 301 N.E.2d at 650. "Upon foreclosure, the vendee retains a vendee's lien upon the sale, and once the balance owed under the contract has been paid to the vendor, the vendee may retain the proceeds from the sale." McLemore v. McLemore , 827 N.E.2d 1135, 1143 (Ind. Ct. App. 2005). "If the foreclosure does not net a sufficient amount to satisfy the vendor's remaining security interest in the property, a damage judgment for waste caused by the vendee equivalent to the amount recoverable by a mortgagee as a deficiency judgment would be appropriate." Id. Forfeiture divests property without compensation; in other words, forfeiture terminates an existing contract without restitution. Hooker v. Norbu , 899 N.E.2d 655, 658 (Ind. Ct. App. 2008), trans. denied . A vendor who has obtained the remedy of forfeiture may cancel the contract, retain the payments made, retain the real estate, and recoup actual damages sustained as a result of the transaction. Id. at 659. Forfeiture may be considered an appropriate remedy in limited circumstances, that is, (1) an abandoning or absconding vendee or (2) where the vendee has paid a minimal amount and the vendor's security interest in the property has been jeopardized by the acts or omissions of the vendee. McLemore , 827 N.E.2d at 1140.

[10] Here, the Deasons entered into the Contract with the Trust, paid a down payment and earnest money and, over the course of three years, made a total of thirty-seven installment payments of $2,923.31 each, totaling $108,162.47. On April 18, 2012, the remaining balance was due in one single balloon payment, but the Deasons were unable to make the balloon payment, and instead, tendered a regular monthly payment, which breached the Contract. McWhorter testified that the Deasons never told him that they would be leaving, but that he told the Deasons "[W]e have to live by what's in the [C]ontract." Tr. Vol. 2 at 119. The Deasons testified that McWhorter told them to leave the premises by May 18, 2012. Id. at 136-37. The Trust took possession of the Property shortly after the Deasons left around May 18, 2012 and had the locks changed, and McWhorter began living in the home. Id. at 59, 121. Neither party pursued any obligation on the Contract thereafter. On May 27, 2015, more than three years after taking possession of the Property, the Trust filed a complaint against the Deasons seeking foreclosure and a judgment consisting of "the outstanding unpaid principal balance, together with interest from and after the date of the default, late charges, default-related expenses and advances, reasonable attorney fees and costs of this action, and all other expenses incurred in connection with this cause." Appellants' App. Vol. 2 at 28.

[11] In its order granting judgment to the Trust, the trial court found that the Deasons breached the Contract. The trial court then entered judgment for the Trust for both forfeiture and a deficiency judgment under foreclosure. In its order, the trial court allowed the Trust to retain title to the Property and continue possession of the Property and awarded judgment in the amount of $153,335.24 as a deficiency judgment. Although the order purported to grant the Trust's request for foreclosure, no sheriff's sale, or any sale, of the Property was ordered.

[12] The Deasons do not challenge the trial court's finding that they breached the Contract. They only take issue with the remedies granted by the trial court. In contesting the award of both a forfeiture remedy and a foreclosure remedy, the Deasons rely on Powers v. Ford , 415 N.E.2d 734 (Ind. Ct. App. 1981), where a panel of this court reiterated the general rule that, "one may not forfeit a contract and thereafter expect to enforce it." Id. at 737. Accordingly, pursuant to that case, once a land contract seller has taken possession of the subject property pursuant to a forfeiture, he has elected his remedy and is no longer entitled to seek foreclosure and a deficiency judgment. Id.

[13] In the present case, although no formalities were taken to initiate a forfeiture at the time the Deasons defaulted on the Contract, the actions taken by the Trust indicate that a forfeiture did, in fact, occur. When the Deasons defaulted on the Contract, they relinquished possession of the Property, and the Trust took almost immediate possession of the Property with McWhorter residing on the Property consistently until the date of the trial. At the time of the Deasons' breach of the Contract, they had paid only about 4% of the total purchase price, and after the breach, neither party attempted to perform anything further under the Contract, which shows an intent to cancel the Contract. Not until over three years after the Deasons' breach of the Contract, did the Trust seek a foreclosure of the Property. Therefore, the record indicates that the Trust elected to pursue a forfeiture at the time of the breach of the Contract, which cancelled the Contract, and pursuant to Powers , the Trust was no longer entitled to seek a foreclosure and a deficiency judgment, which would hold the Deasons further liable on the Contract.

[14] The language of the Contract further supports this outcome. Paragraph 16 provided in pertinent part:

In the event that the BUYERS shall fail to perform any of the acts or fail to make any of the payments required by this contract, promptly and at the time stipulated, then, after thirty (30) days, if the defaults are not completely corrected, including the current payments due, and if the BUYERS have not paid twenty-five percent (25%) or more of the principal of the original purchase price, all payments made hereunder prior to such default shall be retained by the SELLERS as and for damages for the use and occupancy of the premises to the date of default and SELLERS shall thereupon be relieved from all liability hereunder to the BUYERS. Immediately upon such thirty (30) day default, and without demand or notice, the BUYERS agree that they will surrender to the SELLERS peaceable and immediate possession of said premises together with all improvements thereon.

Appellants' App. Vol. 2 at 62 (emphasis added). Pursuant to this language, when the buyers default on any performance under the Contract and do not correct the default within thirty days and have paid less than 25% of the principal, the Contract is cancelled, and the sellers retain all of the prior payments as damages for use and occupancy of the property and the buyers must surrender possession of the property. This provision addresses what occurred here. In April 2012, the Deasons contacted McWhorter and informed him that they would be unable to make the balloon payment that was due under the Contract. Within thirty days of this breach of the Contract, the Deasons relinquished possession of the Property, and McWhorter took possession of the Property and began residing on the Property shortly thereafter. At no time after the breach did either party pursue any further action under the Contract, and both parties proceeded as if the Contract had been cancelled. Further, at the time of the Deasons' default under the Contract, they had paid approximately 4% of the purchase price of the Property, far less than the 25% threshold. Thus, under the Contract's language, a forfeiture was the proper course where, as here, the Deasons had paid less than 25% of the principal when they defaulted.

[15] Although the trial court found that the Contract allowed the Trust to proceed with a foreclosure even when forfeiture may have been an acceptable remedy, we do not believe that the Contract actually allows for such a choice. See id. at 21. The Contract states:

In the event of such default and the failure of BUYERS to surrender possession of said real estate as above provided, the SELLERS may proceed in any action at law or in equity for the possession of said real estate and for damages for the withholding thereof, and for waste or damage done thereto.

Id. at 62. Pursuant to this language, the seller may only "proceed in any action at law or in equity" if the buyers defaulted on the Contract and failed to surrender possession of the Property. In the present case, even though the Deasons did default on their performance under the Contract, the record does not establish that they also failed to surrender possession of the Property. Rather, the record shows that within thirty days of their breach of the Contract, the Deasons relinquished possession of the Property to McWhorter.

[16] We, therefore, conclude that, in the present case, the record established that, after the Deasons defaulted, the Trust elected a forfeiture remedy and was no longer entitled to pursue a foreclosure remedy and a deficiency judgment as it did. Likewise, under the language of the Contract, the forfeiture was the proper remedy to pursue as, at the time of their default, the Deasons had only paid 4% of the purchase price. The trial court erred when it entered judgment in favor of the Trust under a remedy of foreclosure and awarded it a deficiency judgment. We reverse and remand for a recalculation of the damages award.

[17] Reversed and remanded.

Vaidik, C.J., and Riley, J., concur.