People v. Henderson

ILLINOIS OFFICIAL REPORTS
Supreme Court

People v. Henderson, 2013 IL 114040

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CARL
Court: HENDERSON, Appellant.

Docket No. 114040

Filed May 23, 2013

Held Where a police stop of a car was not legally justified but defendant
(Note: This syllabus backseat passenger exited the vehicle and fled, dropping a gun, a motion
constitutes no part of to suppress it would not have been granted at his trial for aggravated
the opinion of the court unlawful use of a weapon and counsel was not ineffective in failing to
but has been prepared make it—fruit-of-the-poisonous-tree claim precluded by break in the
by the Reporter of chain of causation.
Decisions for the
convenience of the
reader.)

Decision Under Appeal from the Appellate Court for the First District; heard in that court
Review on appeal from the Circuit Court of Cook County, the Hon. Stanley J.
Sacks, Judge, presiding.

Judgment Affirmed.
Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal Defender, and Brian E. Koch, Assistant Appellate Defender, of the Office
of the State Appellate Defender, of Chicago, and Jon Terry, law student,
for appellant.

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and
Yvette Loizon, Assistant State’s Attorneys, of counsel), for the People.

Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
and Burke concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial in the circuit court of Cook County, defendant Carl Henderson
was found guilty of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)
(West 2008)) and sentenced to eight years’ imprisonment. On appeal, defendant argued that
his trial counsel rendered ineffective assistance by failing to file a motion to suppress the
weapon. The appellate court rejected defendant’s argument, and affirmed the judgment of
the circuit court. 2012 IL App (1st) 101494. For the reasons that follow, we affirm.

¶2 BACKGROUND
¶3 The following evidence was adduced at defendant’s trial. On September 8, 2009, Officers
Robert Staken and Matthew Brophy were on routine patrol in a marked squad car in the area
of Central Park and Adams Street in Chicago. Brophy was driving. At about 1:30 a.m., an
individual flagged them down. Both officers described this individual as a black male in his
20s. The officers did not ask his name. He was, according to Staken, an “anonymous citizen.”
Brophy recalled that the man was of average height, meaning 5 feet 10 inches tall. Staken did
not recall what the man was wearing, whether he had facial hair, or how tall he was. The man
advised the officers of a “possible gun” in a tan, four-door Lincoln. Staken testified that the
man also identified the number of persons in the Lincoln, but Staken was not asked, and he
did not volunteer, that number. Shortly after this conversation, the officers observed a tan
four-door Lincoln traveling eastbound on Madison Street. They activated their squad car
lights and “curbed” the vehicle. The officers did not observe the driver commit any traffic
violations. The driver immediately exited the Lincoln and began walking toward the officers,
who had exited their squad car. The officers ordered the driver back to his vehicle, after
which they placed him in handcuffs.
¶4 The officers next ordered the front seat passenger out of the vehicle. The passenger

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 complied. After conducting a pat-down search for weapons, the officers placed the passenger
in handcuffs and brought him to the rear of the Lincoln. While Brophy watched the driver
and the front seat passenger, Staken ordered the backseat passenger, defendant, out of the
vehicle. Defendant told Staken that the door on the passenger side did not open, so Staken
ordered him to get out on the driver’s side. Defendant complied. Brophy walked defendant
over to Staken, at which point, according to Staken, defendant “took off running” and
“dropped a weapon onto the ground.” Staken thought the weapon, a handgun, came from
defendant’s waistband. Staken never saw the gun in defendant’s hand.
¶5 Staken told Brophy, who was handling the driver and front seat passenger, that a handgun
was on the ground. Staken then pursued defendant in the squad car as defendant ran
eastbound on Madison Street. After defendant fell to the ground, Staken arrested him. When
Staken returned with defendant to the place where the Lincoln was parked, Brophy advised
Staken that he had recovered the weapon, a .22-caliber handgun loaded with four bullets.
Brophy testified that the gun was found about two feet from the Lincoln.
¶6 Defendant did not testify and did not call any witnesses.
¶7 The trial court found defendant guilty of aggravated unlawful use of a weapon. During
the court’s oral ruling, the trial judge observed that a motion to suppress the gun “would not
have [had] any chance of success.” The court elaborated:
“If [defendant] would have stayed there for the search, I think there would have
been a basis for [a] motion to suppress as to [defendant]; that all the police know at
that point was that someone stopped [them] or flagged [them] down, whatever that
was, said there might possibly be a gun in that car. That would be dubious at best
about probable cause to stop that car and search the guys in the car.
If defendant would have stayed there for the search, he would have been a lot
better off than running off. But by running off and leaving the gun behind, and I
believe he did drop the gun as he was running off, the gun becomes abandoned and
there’s no basis for a motion to suppress under those circumstances. If he would have
stayed for the search, I think a motion [to suppress] would have been appropriate to
file under those circumstances. But since he didn’t stay for the search, he did not
submit to police authority, therefore, there’s no basis for a motion to suppress
evidence as far as [defendant] is concerned.”
The trial court subsequently sentenced defendant to eight years’ imprisonment.
¶8 Defendant appealed, arguing that his trial counsel was ineffective because she failed to
file a motion to suppress the gun. Defendant maintained that the officers’ initial seizure of
the Lincoln was illegal and that the recovery of the gun was the fruit of that illegal seizure.
The appellate court agreed with defendant that the initial seizure was illegal “because it was
based on an anonymous tip that was not sufficiently reliable to provide the officers with a
reasonable suspicion that defendant was engaged in criminal activity which would justify a
stop under Terry v. Ohio, 392 U.S. 1 (1968).” 2012 IL App (1st) 101494, ¶ 9. The appellate
court, however, agreed with the State that defendant was not seized within the meaning of
the fourth amendment at the time he dropped the gun and, thus, the gun could not be the fruit
of an illegal seizure. Id. ¶¶ 12, 27. The appellate court concluded that because any motion

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 to suppress would not have succeeded, defendant’s trial counsel was not ineffective by
failing to file such a motion. Id. ¶ 28.
¶9 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
2010).

¶ 10 ANALYSIS
¶ 11 A claim of ineffective assistance of counsel is evaluated under the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Ramsey, 239 Ill. 2d 342,
433 (2010); People v. Albanese, 104 Ill. 2d 504, 526 (1984). Under this test, a defendant
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness, and a reasonable probability exists that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Ramsey, 239 Ill. 2d at 433. A
defendant’s failure to establish either prong of the Strickland test precludes a finding of
ineffective assistance of counsel. People v. Patterson, 217 Ill. 2d 407, 438 (2005).
¶ 12 Defendant argues that in order to prevail on his ineffectiveness claim, he need not show
that the motion to suppress would have been granted; rather, he must show only that a
reasonable probability exists that the motion would have been granted and that the outcome
of his trial would have been different. In a line of cases beginning with People v. Orange,
168 Ill. 2d 138, 153 (1995), this court has stated that, in order to establish prejudice where
an ineffectiveness claim is based on the failure to file a suppression motion, the defendant
must show that a reasonable probability exists both that the motion would have been granted,
and that the result of the trial would have been different had the evidence been suppressed.
Thus, defendant’s position finds support in the case law. We note, however, that other
opinions have recognized a more stringent standard, stating that defendant must establish that
the unargued suppression motion was “meritorious,” i.e., it would have succeeded, and that
a reasonable probability exists that the trial outcome would have been different without the
challenged evidence. E.g., People v. Harris, 182 Ill. 2d 114, 146 (1998); People v. Bailey,
232 Ill. 2d 285, 289 (2009). Thus, the position defendant expressly disavows is also
supported by our case law.
¶ 13 The underpinnings of the Orange “reasonable probability standard” and the Harris
“meritorious standard” can be traced back to a single case: Kimmelman v. Morrison, 477
U.S. 365 (1986).
¶ 14 In Kimmelman, the respondent filed a petition for a writ of habeas corpus arguing, in
relevant part, that counsel rendered ineffective assistance, in violation of the Sixth
Amendment, in that he failed to file a timely motion to suppress evidence seized without a
search warrant, in violation of the Fourth Amendment. The Supreme Court noted that the
Sixth Amendment claim must be evaluated under the Strickland standard, and then explained
what more was required of the respondent:
“Where defense counsel’s failure to litigate a Fourth Amendment claim competently
is the principal allegation of ineffectiveness, the defendant must also prove that his
Fourth Amendment claim is meritorious and that there is a reasonable probability that
the verdict would have been different absent the excludable evidence in order to

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 demonstrate actual prejudice.” Kimmelman, 477 U.S. at 375.
¶ 15 Although Orange cited favorably to Kimmelman, it did not faithfully set forth the
standard adopted in that case. We now clarify that where an ineffectiveness claim is based
on counsel’s failure to file a suppression motion, in order to establish prejudice under
Strickland, the defendant must demonstrate that the unargued suppression motion is
meritorious, and that a reasonable probability exists that the trial outcome would have been
different had the evidence been suppressed.
¶ 16 In the instant case, the success of a motion to suppress the gun is dependent on two
related propositions advanced by defendant: (1) the vehicle stop was illegal; and (2) the gun
was the fruit of that illegal seizure. We consider each proposition in turn.

¶ 17 Legality of the Vehicle Stop
¶ 18 Defendant argues that the tip provided to police was not reliable enough to provide a
reasonable suspicion or probable cause to support the vehicle stop. The State counters that
the trial record is insufficient to determine the legality of the vehicle stop because the record
was not developed for the purpose of litigating or preserving that claim; rather, the record
was developed only for the purpose of determining defendant’s guilt on the charged offense.
Based on this purported insufficiency in the record, the State urges this court to reject
defendant’s ineffective assistance claim outright. Citing People v. Bew, 228 Ill. 2d 122
(2008), the State posits that the claim is more appropriately raised in a postconviction
proceeding where a factual record bearing precisely on the issue of the reasonableness of the
vehicle stop can be created.
¶ 19 Preliminarily, we note that during oral argument before this court, the State indicated that
if defendant had chosen to forgo his ineffectiveness claim on direct appeal, and instead raised
that issue, including the legality of the traffic stop, in a postconviction petition, the State
would have sought dismissal of that petition under the doctrine of res judicata, arguing that
the issue should have been raised on direct appeal. Thus, the State’s argument that the record
here is insufficient and a postconviction proceeding is the better method for litigating
defendant’s claim is not well taken. This aside, we disagree with the State that this court’s
opinion in Bew provides a basis to reject outright defendant’s ineffectiveness claim.
¶ 20 In Bew, the defendant claimed that trial counsel was ineffective for failing to file a
motion to suppress drug evidence obtained as a result of a canine sniff during a vehicle stop.
At the time of trial, People v. Cox, 202 Ill. 2d 462 (2002), was the governing law. During the
course of the defendant’s direct appeal, the law changed. Bew, 228 Ill. 2d at 124 (citing
Illinois v. Caballes, 543 U.S. 405 (2005), People v. Caballes, 221 Ill. 2d 282 (2006)). Based
on this change in the law, the defendant could no longer establish prejudice resulting from
counsel’s failure to file a suppression motion. Id. at 133. Although the defendant asserted
alternative grounds for suppression of the drug evidence, we concluded that the record was
insufficient to evaluate the defendant’s new arguments and the State’s counter-arguments.
Id. at 133-34. We thus rejected defendant’s ineffective assistance claim, noting that the
defendant may raise the alternative grounds for suppression under the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2002)). Id. at 135.

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¶ 21 The approach we adopted in Bew was based on the analogous situation discussed in
Massaro v. United States, 538 U.S. 500 (2003). There, the Supreme Court explained:
“ ‘[w]hen an ineffective-assistance claim is brought on direct appeal, appellate counsel and
the court must proceed on a trial record not developed precisely for the object of litigating
or preserving the claim and thus often incomplete or inadequate for this purpose.’ ” Bew, 228
Ill. 2d at 134 (quoting Massaro, 538 U.S. at 504-05). Conversely, in a collateral proceeding,
“the defendant has a full opportunity to prove facts establishing ineffectiveness of counsel,
[and] the government has a full opportunity to present evidence to the contrary ***.”
(Internal quotation marks omitted.) Id.
¶ 22 Bew and Massaro demonstrate that where, as here, the defendant’s claim of
ineffectiveness is based on counsel’s failure to file a suppression motion, the record will
frequently be incomplete or inadequate to evaluate that claim because the record was not
created for that purpose. In the instant case, however, the trial court allowed defense counsel
considerable leeway in her examination of Officers Staken and Brophy, eliciting the type of
testimony that would have been elicited at a suppression hearing. Thus, the instant case is
distinguishable from Bew. Moreover, the State has already conceded the sufficiency of the
trial record. In its brief before the appellate court, the State defended the legality of the traffic
stop based on the same record the State now claims is insufficient to make that
determination. The State argued, in relevant part:
“In this case, the officers were flagged down and received reliable information from
a citizen on Adams and Central Park that there was a gun in a four-door, tan Lincoln.
The citizen also stated the number of people in the car. While on their normal patrol,
approximately five minutes later, the officers saw the four-door, tan Lincoln near the
vicinity where the citizen flagged them down. The information provided by the
citizen was correct, and the officers were able to corroborate the tip by confirming
the color of the car, the make of the car, the number of people in the car, the car’s
proximity to the citizen, and the proximity in time to when the information was
provided. The officers were not required to turn a blind eye to the vehicle fitting the
description. Thus, the officers had reasonable, articulable suspicion of criminal
activity, and this was a valid Terry stop.”
¶ 23 Only after the appellate court ruled adversely to the State, determining that the vehicle
stop was unlawful (2012 IL App (1st) 101494, ¶ 9), did the State argue that the record was
not sufficiently developed. Although the State could, as the prevailing party below, raise any
reason or theory appearing in the record in support of the judgment, the State cannot assert
a new theory inconsistent with the position it adopted in the appellate court. People v.
Franklin, 115 Ill. 2d 328, 336 (1987).
¶ 24 Accordingly, we reject the State’s argument regarding the sufficiency of the record and
will consider the legality of the officers’ conduct when they stopped the Lincoln.
¶ 25 A vehicle stop is subject to the fourth amendment’s requirement of reasonableness
(People v. McDonough, 239 Ill. 2d 260, 267 (2010) (citing Whren v. United States, 517 U.S.
806, 810 (1996))), which we analyze under the principles set forth in Terry v. Ohio, 392 U.S.
1 (1968). People v. Close, 238 Ill. 2d 497, 505 (2010). Under Terry, police may conduct a

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 brief, investigatory stop “where the officer reasonably believes that the person has
committed, or is about to, commit a crime.” Id. A passenger in a vehicle stopped by police,
such as defendant here, is seized within the meaning of the fourth amendment, and therefore
may challenge the constitutionality of the vehicle stop. Brendlin v. California, 551 U.S. 249,
251 (2007); People v. Bunch, 207 Ill. 2d 7, 13 (2003).
¶ 26 In the instant case, testimony at trial established that Officers Staken and Brophy did not
observe the driver of the Lincoln commit any traffic violations, and that they stopped the
vehicle based on a tip provided by an “anonymous citizen” who had flagged them down. A
tip from an anonymous person may supply the requisite quantum of suspicion to conduct a
Terry stop, provided the information bears some indicia of reliability. Alabama v. White, 496
U.S. 325, 327 (1990); People v. Ledesma, 206 Ill. 2d 571, 583 (2003), overruled in part on
other grounds by People v. Pitman, 211 Ill. 2d 502, 513 (2004). The tip must 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). As the Supreme Court explained:
“An accurate description of a subject’s readily observable location and
appearance is of course reliable in this limited sense: It will help the police correctly
identify the person whom the tipster means to accuse. Such a tip, however, does not
show that the tipster has knowledge of concealed criminal activity.” Id.
Knowledge of concealed criminal activity may be demonstrated where the anonymous
informant accurately predicts future behavior, thus indicating that the informant has “inside
information.” White, 496 U.S. at 332; accord Ledesma, 206 Ill. 2d at 589-90. White and J.L.
illustrate these principles.
¶ 27 In White, police received an anonymous telephone tip that a woman, identified by name,
would leave a particular address at a particular time, and drive to a certain motel. The caller
described the vehicle in detail, including the broken taillight. The caller indicated that the
woman would be in possession of an ounce of cocaine in a brown attache case. Police went
to that location, where they saw a vehicle in the parking lot that matched the caller’s
description. Police observed a woman drive off in that vehicle, taking the most direct route
to the designated motel. Police stopped the vehicle. With the woman’s consent, police
searched the car and found a brown attache case which contained marijuana. Following the
woman’s arrest, the officers also found cocaine in the woman’s purse.
¶ 28 The Court held that under the totality of the circumstances, the vehicle stop was justified.
White, 496 U.S. at 332. The Court noted that while anyone could have provided a detailed
description of the vehicle, the caller was able to predict the woman’s future behavior,
demonstrating a special familiarity with her affairs. Id. “Because only a small number of
people are generally privy to an individual’s itinerary, it is reasonable for police to believe
that a person with access to such information is likely to also have access to reliable
information about that individual’s illegal activities.” Id.
¶ 29 In contrast to its holding in White, the Supreme Court held in J.L. that an anonymous
telephone tip “that a young black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun” (J.L., 529 U.S. at 268) was not sufficiently reliable to justify a
Terry stop of that individual (id. at 271). The Court noted that the anonymous caller provided

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 no “predictive information” through which police could test the informant’s knowledge or
veracity. Id. The anonymous tip was nothing more than a “bare report of an unknown,
unaccountable informant who neither explained how he knew about the gun nor supplied any
basis for believing he had inside information about J.L.” Id. Thus, the gun recovered by
police as a result of their stop-and-frisk of J.L. was properly suppressed. Id. at 269.
¶ 30 We conclude that the present case is more closely aligned with J.L. than White. Although
the anonymous citizen provided information that helped identify the vehicle connected to a
“possible gun,” the citizen provided no predictive information through which police could
test the citizen’s knowledge of the gun. We recognize that the tip here was provided in
person to police, rather than by telephone, as was the case in J.L. This fact, standing alone,
is insufficient to demonstrate the reliability of the information provided to police. See People
v. Rhinehart, 2011 IL App (1st) 100683 (holding that an in-person tip was not sufficiently
reliable to justify a Terry stop where the tip was from an unidentified citizen and disclosed
only that a black male at a certain location wearing certain clothing had a gun).
¶ 31 Because the vehicle stop effected an illegal seizure of defendant, we consider his second
proposition necessary to the success of a motion to suppress, i.e., that the gun was the fruit
of that illegal seizure.

¶ 32 Fruit of the Poisonous Tree
¶ 33 The “fruit of the poisonous tree” doctrine is an outgrowth of the fourth amendment
exclusionary rule. People v. Winsett, 153 Ill. 2d 335, 351 (1992). 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. People
v. McCauley, 163 Ill. 2d 414, 448 (1994). As we recognized in People v. Gervasi, 89 Ill. 2d
522, 528 (1982), the test of whether evidence is the fruit of the poisonous tree was best
articulated in Wong Sun v. United States, 371 U.S. 471 (1963). Under Wong Sun, the
question is “whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S.
at 488 (quoting John MacArthur Maguire, Evidence of Guilt 221 (1959)). In other words, a
court must consider “whether the chain of causation proceeding from the unlawful conduct
has become so attenuated or has been interrupted by some intervening circumstance so as to
remove the ‘taint’ imposed upon that evidence by the original illegality.” United States v.
Crews, 445 U.S. 463, 471 (1980). Factors relevant to an attenuation analysis include the
temporal proximity of the illegal police conduct and the discovery of the evidence; the
presence of any intervening circumstances; and the purpose and flagrancy of the official
misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975); People v. Johnson, 237 Ill. 2d
81, 93 (2010).
¶ 34 Importantly, the Supreme Court has rejected a “but for” test under which evidence would
be deemed inadmissible simply because it would not have been discovered “but for” the
illegal actions of the police. Wong Sun, 371 U.S. at 487-88; Dunaway v. New York, 442 U.S.
200, 217 (1979). Thus, evidence which comes to light through a chain of causation that

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 began with an illegal seizure is not per se inadmissible. People v. Harris, 495 U.S. 14, 17
(1990). See also People v. Gabbard, 78 Ill. 2d 88, 95 (1979) (recognizing that Wong Sun and
its progeny rejected a simple “but for” test).
¶ 35 Defendant argues that all three attenuation factors weigh in his favor. Defendant posits
that almost no time passed between his illegal seizure and the discovery of the gun; his flight
and abandonment of the gun were direct responses to the illegal seizure; and the officers’
conduct was a flagrant violation of Supreme Court fourth amendment precedent.
¶ 36 With respect to the first attenuation factor—temporal proximity—we observe that the
record is silent as to the actual amount of time that passed between the initiation of the
vehicle stop and the discovery of the gun. Nothing in the record indicates, however, that the
stop was unduly prolonged. Although we disagree with defendant that “almost no time
passed,” we will proceed under the assumption that the temporal proximity factor favors
defendant.
¶ 37 Under the second attenuation factor, we focus on the presence of any intervening
circumstances between the officers’ unlawful conduct in stopping the vehicle and their
discovery of the gun. Although defendant seeks to minimize the legal significance of his
flight from the vehicle stop, we agree with the State that defendant’s flight “ended the
seizure,” and “anything happening thereafter was, by its very nature, no longer tied to the
initial stop.” This conclusion is supported by California v. Hodari D., 499 U.S. 621 (1991).
¶ 38 In Hodari D., two officers were on patrol when they noticed four or five youths huddled
around a parked car. As the officers’ car approached, the youths, including Hodari, panicked
and took flight. Immediately prior to one of the officers tackling Hodari, he tossed away a
small rock of crack cocaine, which police recovered. In the subsequent juvenile proceeding,
Hodari moved to suppress the drug evidence. The court denied the motion, but the California
Court of Appeal reversed, holding that Hodari was seized when he saw the officer running
toward him; this seizure was unreasonable under the fourth amendment; and the evidence
of cocaine had to be suppressed as the fruit of that illegal seizure. Hodari D., 499 U.S. at
623. The California Supreme Court denied review. On certiorari, the United States Supreme
Court reversed and remanded. Id. at 629.
¶ 39 The narrow question before the Court was “whether, with respect to a show of authority,
as with respect to application of physical force, a seizure occurs even though the subject does
not yield.” Id. at 626. The Court held it does not. Id. The Court reasoned that, assuming the
officer’s pursuit of Hodari constituted a show of authority enjoining him to halt, because
Hodari did not submit to that show of authority, he was not seized within the meaning of the
fourth amendment. Thus, the cocaine Hodari abandoned while running from police was not
the fruit of a seizure, and his motion to suppress evidence of the cocaine was properly denied.
Id. at 629.
¶ 40 During the course of its analysis, the Court noted that according to one commentator, an
arrest may be accomplished “ ‘by merely touching, however slightly, the body of the accused
*** although he does not succeed in stopping or holding him.’ ” Id. at 625 (quoting A.
Cornelius, Search and Seizure 163-64 (2d ed. 1930)). The Court then observed:
“To say that an arrest is effected by the slightest application of physical force,

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 despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there
is a continuing arrest during the period of fugitivity. If, for example, [the officer] had
laid his hand upon Hodari to arrest him, but Hodari had broken away and had then
cast away the cocaine, it would hardly be realistic to say that the disclosure had been
made during the course of an arrest. Cf. Thompson v. Whitman, 18 Wall. 457, 471
(1874) (‘A seizure is a single act, and not a continuous fact’).” (Emphases in
original.) Id. at 625.
¶ 41 Defendant concedes that, pursuant to Hodari D., his flight terminated his unlawful
seizure. Defendant argues, however, that the foregoing passage from Hodari D. is
nonbinding dicta and, in any event, does not mean that his flight wiped the slate clean, as if
the illegal seizure never occurred.
¶ 42 We recognize that the passage from Hodari D. quoted above was outside the narrow
issue before the Court and not essential to the outcome of that case. As such, the Court’s
statements are nonbinding dicta. See Exelon Corp. v. Department of Revenue, 234 Ill. 2d
266, 277 (2009) (discussing the nonbinding nature of obiter dictum). Accord United States
v. Parker, 214 F. Supp. 2d 770, 775 n.4 (E.D. Mich. 2002) (referring to the foregoing quote
from Hodari D. as dicta); Johnson v. State, 689 So. 2d 376, 378 (Fla. Dist. Ct. App. 1997)
(same); New Mexico v. Garcia, 2009-NMSC-046, ¶ 23, 147 N.M. 134, 217 P.3d 1032
(same). We also recognize, however, that Supreme Court dicta, even if nonbinding, may be
persuasive. Our own appellate court in People v. Keys, 375 Ill. App. 3d 459, 462 (2007),
found the dicta in Hodari D. persuasive. In Keys, the appellate court held that even if the
initial seizure and attempted patdown of the defendant were unlawful, the drugs recovered
by police were not recovered through exploitation of that initial illegality, but were
discovered as a result of the defendant’s escape and abandonment of the drugs. Keys, 375 Ill.
App. 3d at 464. The appellate court in the instant case also relied on Hodari D., as applied
in Keys. 2012 IL App (1st) 101494, ¶¶ 24-27.
¶ 43 Federal and state courts outside Illinois have also found the foregoing dicta in Hodari D.
persuasive, although not universally so. Compare, e.g., United States v. Williams, 608 F.
Supp. 2d 325, 329-30 (E.D.N.Y. 2008) (following the Hodari D. dicta and holding that the
defendant, by breaking free of the officer’s grasp, “rendered the legality of that seizure an
irrelevancy”); State v. Lisenbee, 13 P.3d 947, 951 (Nev. 2000) (citing favorably to the Hodari
D. dicta and concluding that “flight after a seizure occurs is an effectual end to that seizure,”
and “[t]hus, any conduct during flight should be considered apart from the illegal police
action”); and Johnson, 689 So. 2d at 378 (finding the Hodari D. dicta instructive and holding
that even if the defendant was seized, his flight brought the contemporaneous tossing of a
gun outside the scope of the seizure), with United States v. Dupree, 617 F.3d 724, 742 (3d
Cir. 2010) (Fisher, J., concurring in part and concurring in the judgment) (observing that to
hold, on the basis of Hodari D., that a fleeing suspect cannot reap the exclusionary rule’s
benefit “completely sidesteps the more sophisticated inquiry our Fourth Amendment
jurisprudence mandates”); Parker, 214 F. Supp. 2d at 775 n.4 (stating that the Hodari D.
dicta does not stand for the proposition that evidence initially discovered during an unlawful
search and seizure is admissible simply because the party escaped from the officer and
abandoned the contraband while fleeing); Garcia, 2009-NMSC-046, ¶ 23, 147 N.M. 134,

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 217 P.3d 1032 (disagreeing with the lower court that the “rather obscure dicta” in Hodari D.
means that “any abandoned evidence not disclosed during the course of an arrest is not
subject to suppression” because such a reading would substantially limit the fruit of the
poisonous tree doctrine).
¶ 44 Like our appellate court, we find Hodari D. persuasive and will follow the Supreme
Court’s lead on the issue of fourth amendment jurisprudence before us.1 Thus, similar to
Hodari D., “it would hardly be realistic to say” in this case that the disclosure of the gun had
been made during the course of defendant’s seizure where defendant took flight and then
dropped the gun. Although defendant’s flight did not “wipe the slate clean, as if the illegal
seizure never took place,” it did interrupt the causal connection between the two events.
¶ 45 Citing United States v. Wilson, 953 F.2d 116 (4th Cir. 1991), and State v. Ingram, 1998-
NMCA-177, 126 N.M. 426, 970 P.2d 1151, defendant argues that his flight, itself, was a
direct response to the illegal seizure which did not break the causal connection between the
initial illegality and the discovery of the gun. Although defendant’s flight was, in some sense,
a response to the officers’ conduct of stopping the vehicle, we agree with the State that
defendant is essentially asserting that but for the vehicle stop, he would not have fled and the
gun would not have been discovered. As already noted, the Supreme Court has rejected a
but-for or per se rule which would render evidence inadmissible at trial simply because it
came to light through a series of events that began with an unlawful seizure. Wong Sun, 371
U.S. at 487-88; Dunaway, 442 U.S. at 217; Harris, 495 U.S. at 17. “[B]ut-for causality is
only a necessary, not a sufficient, condition for suppression.” Hudson v. Michigan, 547 U.S.
586, 592 (2006). Rather, a “sufficiently close relationship” between the underlying illegality
and the evidence must exist for application of the poisonous-fruit doctrine. People v.
Lovejoy, 235 Ill. 2d 97, 130 (2009). The out-of-state authorities on which defendant relies
do not convince us that the facts here establish a sufficiently close relationship that goes
beyond mere but-for causation.
¶ 46 Wilson involved overbearing and harassing police conduct that caused an initially
consensual encounter at an airport to escalate into an unlawful seizure, culminating in the
suspect’s flight from police during which he discarded a coat containing illegal drugs. The
federal appeals court held that “[i]n an airport setting, where passengers and others are
coming and going at a rapid pace, the temptation to manufacture justification for prolonged
investigative stops increases,” and that to permit the drugs to be used as evidence “might
well promote provocative confrontations with suspects, in the hopes of inducing flight and,
with luck, the abandonment of contraband.” Wilson, 953 F.2d at 127. The concerns
animating the federal appeals court decision in Wilson are not present here.
¶ 47 In Ingram, a vehicle stop case, the defendant fled after the officer impermissibly directed
him to empty his pockets, abandoning drug evidence which police recovered after giving
chase. The New Mexico court of appeals held that because the defendant “merely reacted”

1
Defendant does not argue that the search and seizure clause of the Illinois Constitution (Ill.
Const. 1970, art. I, § 6) provides greater protection than its federal counterpart (U.S. Const., amend.
IV) in a case such as this.

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 to the unlawful search, the defendant’s flight and discard of the drugs were not independent
intervening acts sufficient to purge the taint of the illegal search. Ingram, 1998-NMCA-177,
¶ 16, 126 N.M. 426, 970 P.2d 1151. Ingram’s conclusion that the defendant “merely reacted”
to the unlawful search is akin to saying that but for the illegal search, he would not have fled.
As already discussed, Supreme Court precedent requires something more than but-for
causation. Thus, we do not find Ingram persuasive, and adhere to our initial conclusion that
defendant’s flight interrupted the chain of causation between the illegal seizure and the
discovery of the gun.
¶ 48 Under the third attenuation factor, we consider the purpose and flagrancy of the official
misconduct. Brown, 422 U.S. at 604. According to defendant, Officers Staken and Brophy
flagrantly violated Supreme Court precedent when they stopped the vehicle based on an
unreliable anonymous tip, and suppression is warranted in order to deter similar misconduct
in the future.
¶ 49 “[O]fficer conduct is ‘flagrant’ when it is carried out in such a manner as to cause
surprise, fear, and confusion, or when it has a quality of purposeful or intentional
misconduct.” Johnson, 237 Ill. 2d at 94. Defendant fails to identify any conduct by the
officers during the course of the vehicle stop which would qualify as flagrant under this
standard. Although we have determined that the citizen’s tip on which the officers relied was
insufficient to justify the stop, “[l]ike many issues involving constitutional protections
against unreasonable searches and seizures, the reliability of a tip and the propriety of police
action in response to that tip are often closely decided issues.” Ledesma, 206 Ill. 2d at 584.
The fact that the officers here failed to discern, at the time they saw the Lincoln, that the tip
received just a few minutes earlier was more closely aligned with J.L. than White does not
persuade us that the officers’ misconduct was intentional or otherwise flagrant.
¶ 50 We conclude that defendant has failed to demonstrate that the gun was the fruit of the
poisonous tree. Defendant’s flight interrupted the causal connection between the officers’
misconduct, which was not flagrant, and the discovery of the gun. This is not a case where
the evidence “could be said to have been obtained by exploitation of the illegality.” Gabbard,
78 Ill. 2d at 95. To conclude otherwise, as defendant urges, is not only contrary to fourth
amendment jurisprudence, but is contrary to public policy. Permitting defendants to flee from
police under the circumstances of this case, and yet claim the protections of the fourth
amendment, would foster a lack of cooperation with law enforcement officers, putting the
police and the public at risk. See Hodari D., 499 U.S. at 627 (“Street pursuits always place
the public at some risk, and compliance with police orders to stop should therefore be
encouraged.”); Keys, 375 Ill. App. 3d at 464 (public policy supports courts of law, rather than
suspected criminals, determining the legality of seizures); Henson v. United States, 55 A.3d
859, 869 (D.C. App. 2012) (if the defendant believed that the officer’s conduct was illegal,
“he should have tested its legality through the courts, rather than engage in self-help” by
fleeing).
¶ 51 Because a motion to suppress the gun would not have been granted, defendant cannot
satisfy his burden under Strickland. Accordingly, we reject defendant’s claim that his trial
counsel was ineffective.

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¶ 52 CONCLUSION
¶ 53 We affirm the judgment of the appellate court rejecting defendant’s claim of ineffective
assistance of counsel and affirming the judgment of the trial court.

¶ 54 Affirmed.

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