People v. Lopez, 2018 IL App (1st) 153331 (October). Episode 549 (Duration 12:56)
Is the identity of a driver subject to suppression after an illegal traffic stop?
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.
Defendant was charged with DWLS under section 6-303(a) of the Illinois Vehicle Code, stemming from a traffic stop. The court found defendant guilty and sentenced him to 24 months’ probation and 30 days’ imprisonment.
The arresting officer testified that at around 8:00 p.m., 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 was described as “a male Hispanic.”
The officer 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. He “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.
The officer then spotted a black Expedition, with a license plate starting with N 211 driving southbound on Pulaski Road. He 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, he activated his emergency lights, and the Expedition immediately pulled over. He did not have a warrant. Defendant was quickly identified and the officer determined that defendant’s license was not valid. He then arrested defendant for driving without a valid license.
Later defendant was charged with DWLS.
Defendant contends that the circuit court erred in denying his motion to quash arrest and suppress evidence because the officer lacked reasonable, articulable suspicion of criminal activity to perform the traffic stop.
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. ___, ___, 134 S. Ct. 1683, 1688 (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].”
Informant’s DUI Tip
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 (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 (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 (2007) (finding tip from restaurant employee about a customer who was “creating a disturbance and was intoxicated” at drive-thru window reliable); People v. Meo, 2018 IL App (2d) 170135, ¶ 3 (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.
See Also Naverette
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.” Navarette, 572 U.S. at ___, 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. 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. During the five minutes that the officer followed the truck, he did not observe any moving violations or “additional suspicious conduct.”
As the police approached the stopped truck, they smelled marijuana. Upon searching the truck, the police found 30 pounds of marijuana.
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.
Although it appears the tipster did give her name to the 911 dispatcher, neither she nor the dispatcher testified. Consequently, the 911 recording was not entered into evidence, and the Court treated the tip as anonymous.
Naverette Tip Was Reliable
The Court made three observations in analyzing the reliability of the tip.
First, “by reporting that she had been run off the road by a specific vehicle *** the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving.” A firsthand basis for knowledge of the alleged wrongdoing lent considerable weight to the reliability of the tip.
Second, the contemporaneous nature of the tip made it more reliable. 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.
Third, the Court found that the very nature of the 911 emergency system lent some support to the reliability of the tip. 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.”
Ongoing Criminal Activity
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.
The Court explained that certain dangerous behaviors are recognized as indicia of drunk driving, such as swerving or “weaving all over the roadway.” A tip alleging that sort of behavior, the Court reasoned, “generally would justify a traffic stop on suspicion of drunk driving.” 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.”
Similar To Navarette
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.
Different Reliability & Sufficiency
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. In this case, 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.
Additionally, nothing in the record indicates the source of the tip at issue here.
Was This A 911 Call?
In this case there is no evidence here that the tipster contacted the police through an emergency number.
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.
In this case, the details corroborated by the officer included the
- general location
- make and
- color of the vehicle.
The partial license plate number NZ1 was also essentially corroborated. A mistake in identifying a “2” as a “Z” is understandable, particularly if the informant identified the plate while the vehicle was moving.
The detail that the driver was “a male Hispanic” was not corroborated until after the stop. The officer 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 (2003).
What Criminal Activity?
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 (2000); Shafer, 372 Ill. App. 3d at 1050 (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).
“A reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (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.
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 ___, 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.
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. The officer did not observe any violations or even suspicious behavior by defendant. Without any specific allegation or indication of wrongdoing, the officer could not have had a reasonable suspicion that defendant was engaged in an ongoing crime.
Because the tip was neither reliable nor sufficiently detailed to justify a traffic stop, we hold that the officer violated defendant’s constitutional right to be free from unreasonable seizure.
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; see also Alderman v. United States, 394 U.S. 165, 171 (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.
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 (1980).
This rule exists to protect fourth amendment rights by deterring prohibited government conduct. People v. Sutherland, 223 Ill. 2d 187, 227 (2006).
But Defendant’s Identity Is Not Suppressible
Because the officer 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 no suppressible evidence was obtained as a result of the traffic stop.
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 (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.”
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.”
“Body or Identity” Language
Rather than creating a new class of evidence exempt from suppression, the “body or identity” language merely establishes that exclusionary rule does not apply to civil deportation proceedings.
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. The State conceded the illegality of the stop but argued that Lopez-Mendoza required that the trial court allow evidence obtained from the stop. The Florida Supreme Court held that LopezMendoza did not stand for the proposition that identity-related evidence was per se admissible over a fourth amendment objection.
The court noted that the cases cited in LopezMendoza involved jurisdictional rather than evidentiary objections. 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.
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.”
We find this analysis persuasive and, like the Florida Supreme Court, we hold that LopezMendoza’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.
Therefore, the circuit court erred in denying defendant’s motion to quash arrest and suppress evidence. Because defendant could not have been convicted without the evidence that should have been suppressed, we reverse his conviction.
Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI)