People v. Mendoza

No. 2--05--0132 Filed 3/29/06
______________________________________________________________________
________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________
________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellant, )
)
v. ) No. 04--CF--0898
)
HUGO MENDOZA, ) Honorable
) Patricia Piper Golden,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________________
_____

JUSTICE McLAREN delivered the opinion of the court:

Two Aurora police officers pulled over defendant, Hugo Mendoza, to investigate two

minor violations of the Illinois Vehicle Code. After the traffic stop was completed, one of the

officers began asking Mendoza questions unrelated to the ostensible reason for the stop

(that is, the minor violations of the Illinois Vehicle Code). The second officer, meanwhile,

began shining his flashlight into Mendoza's car. The second officer saw a handgun sticking

out from under the front seat, and Mendoza was eventually arrested and charged with

unlawful use of a weapon (720 ILCS 5/24--1.6(a)(1), (a)(3)(A) (West 2002)). He filed a

motion to suppress, arguing that the officers' actions violated his constitutional right to be

free from unreasonable search and seizure. See U.S. Const., amend. IV; Ill. Const. 1970,

art. I, '6. The trial court granted the motion, and the State appeals. We affirm.
 I. BACKGROUND

A. The Facts Before the Trial Court

The following facts are taken from testimony presented at a hearing on Mendoza's

motion to suppress. Around 11 p.m. on May 10, 2004, Mendoza was driving his Pontiac

Grand Prix sedan in Aurora. As he drove through the 800 block of Lebanon Street,

Mendoza was watched by two Aurora police officers, Investigator Jeff Wiencek and

Investigator Joe Weber, who were patrolling the area in a semi-marked police vehicle. The

officers did not see Mendoza speeding. Nor did they see him driving erratically. However,

they did see that he had a tinted rear window, a tinted rear license plate cover, and a

bandana hanging from his rearview mirror. Having a tinted rear window is not an Illinois

Vehicle Code violation, but having a tinted rear license plate cover is (see 625 ILCS 5/3--

413(b) (West 2002)). So, too, is having an object hanging from the rearview mirror, if that

object materially obstructs the driver's view (see 625 ILCS 5/12--503(c) (West

2002)), and the officers believed that the bandana hanging from Mendoza's rearview mirror was large enough

to obstruct his view. 1 After making these observations, the officers suspected two things.

First, they suspected that Mendoza was violating the Illinois Vehicle Code. Second, they

suspected that he was a gang member. The latter suspicion was based on Aurora's being a

city where gang activity has occurred and on the bandana hanging from Mendoza's

1
The trial court found that there was no evidence that the officers thought that the bandana

was obstructing Mendoza's view. However, according to the officers' testimony, which was the only

evidence before the trial court, the officers thought that the bandana was large enough to obstruct

Mendoza's view. Thus, the trial court's factual finding to the contrary was mistaken. But, as

discussed in part IIA below, this mistake is not significant.
No. 2--05--0132

rearview mirror. That bandana was red, and, according to the officers, red is one of the

colors of a gang known as the Vice Lords. It is not, however, the only color, and the

officers did not say that non-gang members never hang red bandanas from their rearview

mirrors. Nevertheless, based on the area and the bandana, the officers suspected

Mendoza of being a gang member. And they decided to pull him over.

Investigator Weber activated the police vehicle's emergency lights, and Mendoza

quickly stopped. At that point, the two officers got out of their vehicle and approached his

car. Investigator Weber came up on the driver's side; Investigator Wiencek, on the

passenger's. They wore dark, special-operations uniforms, with "POLICE" stenciled in

large white letters on their shirts. Their badges were not visible, but their guns were. Their

police radios blared. Shining his flashlight into the car, Investigator Weber asked Mendoza

for his driver's license and proof of insurance. Meanwhile, on the passenger's side of the

car, Investigator Wiencek peered in at Mendoza and looked around at the backseat of the

car. Neither officer saw anything unusual.

Mendoza handed his license and proof of insurance to Investigator Weber, and both

officers returned to their police vehicle. Investigator Weber determined that Mendoza's

driver's license and insurance were valid. Then he ran a criminal history check on

Mendoza and came up with nothing. Nevertheless, Investigator Weber decided that he

would try to get Mendoza to consent to a search of his car.

Investigator Weber did not want to search Mendoza's car because Investigator

Weber or Investigator Wiencek had observed any criminal activity beside the Illinois Vehicle

Code violations; they had observed none. Nor did Investigator Weber want to search

Mendoza's car because they suspected his involvement in some specific past crime; they

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had no such suspicions. Instead, Investigator Weber wanted to search Mendoza's car

because Investigator Weber and Investigator Wiencek believed that Mendoza was

"affiliated" with the Vice Lords gang. They based this belief on "information" apparently on

file at the Aurora police department and on Investigator Wiencek's having previously seen

Mendoza hanging out in the same place as some gang members. Also, there was

Mendoza's having a red bandana hanging from his rearview mirror and his having been

pulled over in Aurora, where there had been some shootings in the past. Neither

Investigator Weber nor Investigator Wiencek had any information linking Mendoza to those

shootings--or any other crime, for that matter--but the officers did think that someone who

has been seen in the same place as gang members, and who has a red bandana in his car,

and who is caught driving in Aurora, might have a gun in his car; so they felt a "heightened

need for safety." Notwithstanding all of this, however, the officers apparently did not

believe they had any legal justification to search Mendoza's car for a gun or anything else.

Hence, Investigator Weber's plan to get Mendoza to consent to a search.

With this end in mind, the officers again approached Mendoza's car. As before, the

officers flanked Mendoza's car. Also as before, Investigator Weber went to the driver's side

and Investigator Wiencek went to the passenger's. Investigator Weber told Mendoza that

he, Investigator Weber, was not going to give Mendoza a ticket. At that point, Investigator

Weber returned Mendoza's insurance information and driver's license. But, as planned,

Investigator Weber did not tell Mendoza he was free to go. Instead, Investigator Weber

began questioning Mendoza. 2 As Investigator Weber did so, his partner, Investigator

Wiencek, stood at the passenger's side, shining his flashlight around in Mendoza's car.

2
The trial court found that, before questioning Mendoza, Investigator Weber asked him to

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step out of his vehicle. However, neither officer testified that this occurred, and, as their testimony

was the only evidence before the trial court, the trial court's factual finding on this point was

mistaken. But, as discussed in part IIA below, this mistake is not significant.

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Back at the driver's side, Investigator Weber asked Mendoza if he had anything

illegal in the car. Mendoza answered that he did not. Investigator Weber then asked

Mendoza if the officers could search the car. Mendoza answered that they could not.

Finally, Investigator Weber told Mendoza he could go. Mendoza then began to drive away.

He did not speed away. He did not screech his tires. He simply started off at a normal

rate of speed.

He would not get far. As soon as Mendoza pulled away, Investigator Wiencek told

Investigator Weber that he had seen the butt of a handgun sticking out from under the

driver's seat of Mendoza's car. Investigator Wiencek later testified that, before seeing the

gun, he had heard Investigator Weber ask Mendoza if the officers could search his car.

After Investigator Wiencek saw the gun, he had tried to alert Investigator Weber without

alerting Mendoza, but he had failed to do so, and Investigator Weber had permitted

Mendoza to drive away. After Investigator Wiencek told Investigator Weber about the gun,

the two officers jumped back into their vehicle and chased Mendoza down. They ordered

him out of the car and searched him. They found nothing on his person, but in his car they

found a handgun. Then they arrested him.

B. The Trial Court's Legal Analysis

After considering the above evidence, the trial court concluded that the discovery of

the gun stemmed from a violation of Mendoza's right to be free from unreasonable search

and seizure. See U.S. Const., amend. IV (protecting against unreasonable search and

seizure); see also Ill. Const. 1970, art. I, '6 (same). 3 To reach this conclusion, the trial

3
Defendant filed his motion to suppress under both the Illinois and United States

Constitutions. As a general rule, our supreme court interprets article I, section 6, of the Illinois

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court used the analytical framework set out by the supreme court in People v. Gonzalez,

204 Ill. 2d 220 (2003), and applied by this court in People v. Parra, 352 Ill. App. 3d 584

(2004). As discussed in part IIB below, although the trial court's ultimate conclusion was

correct, the trial court's analysis was not. However, to understand why, it is helpful to

review that analysis in detail.

Under Gonzalez, the constitutionality of police conduct during a traffic stop is

analyzed using the two-step inquiry set out by the United States Supreme Court in Terry v.

Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The first step is to determine

whether the actions of the police were justified at their inception. Terry, 392 U.S. at 19-20,

20 L. Ed. 2d at 905, 88 S. Ct. at 1879. In the traffic stop context, the actions of the police

are justified at their inception if the police reasonably suspect a violation of the traffic laws.

Gonzalez, 204 Ill. 2d at 227-28. This is so even if the real reason for stopping the driver is

Constitution consistently with the United States Supreme Court's interpretation of the fourth

amendment to the United States Constitution. See People v. Gherna, 203 Ill. 2d 165, 176 (2003).

Thus, for the convenience of the reader, our analysis will refer to only the fourth amendment.

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something other then the suspected traffic violation--say, to investigate possible gang

activity. See People v. Lomas, 349 Ill. App. 3d 462, 467 (2004). If the actions of the police were

justified at their inception, the court moves on to the second step of the Terry inquiry. In

this step, the court must determine whether the actions of the police were "reasonably

related in scope to the circumstances which justified the interference the first place." Terry,

392 U.S. at 20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879; see also Gonzalez, 204 Ill. 2d at 228.

To determine whether police questioning during a traffic stop is constitutional under the

second step of the Terry inquiry, Illinois courts apply a three-prong analysis. Gonzalez, 204

Ill. 2d at 235; Parra, 352 Ill. App. 3d at 587. First, the court must determine whether the

questions related to the initial purpose of the stop. Gonzalez, 204 Ill. 2d at 235. If so, they

did not violate the fourth amendment. Gonzalez, 204 Ill. 2d at 235. Second, if the

questions were not related to the initial purpose of the stop, the court must determine

whether the questions were justified by a "reasonable, articulable suspicion" of criminal

activity other than the mere traffic violation. Gonzalez, 204 Ill. 2d at 235. If so, the

questions did not violate the fourth amendment. Gonzalez, 204 Ill. 2d at 235. Third, in the

absence of either a connection to the purpose of the stop or a reasonable suspicion of additional

criminal activity, the court must determine whether, "in light of all the circumstances and

common sense, the question[s] impermissibly prolonged the detention or changed the

fundamental nature of the stop." Gonzalez, 204 Ill. 2d at 235. If so, then the questions

violated the fourth amendment. See Gonzalez, 204 Ill. 2d at 235. When the fourth

amendment has been violated, the evidence obtained as a result is subject to suppression.

Mapp v. Ohio, 367 U.S. 643, 649, 6 L. Ed. 2d 1081, 1086, 81 S. Ct. 1684,

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1688 (1961); People v. Winsett, 153 Ill. 2d 335, 341 (1992); People v. Kipfer, 356

Ill. App. 3d 132, 143 (2005).

In this case, the trial court found that, based on the officers' observation of at least

one violation of the Illinois Vehicle Code, the stop of Mendoza satisfied the first step of the

Terry inquiry. See Terry, 392 U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879;

Gonzalez, 204 Ill. 2d at 227-28. However, the trial court found that Investigator Weber's

questioning of Mendoza did not satisfy the second step of the Terry inquiry. As noted,

Investigator Weber asked Mendoza if he had anything illegal in his car, and, when

Mendoza said no, Investigator Weber asked if he could search the car. The trial court

found that these questions were not related to the initial purpose of the stop. See

Gonzalez, 204 Ill. 2d at 235. Next, the trial court found that the questions were not justified

by a reasonable suspicion of additional criminal activity. See Gonzalez, 204 Ill. 2d at 235.

In so finding, the trial court reasoned that a reasonable suspicion of some specific criminal

activity did not exist simply because Mendoza was caught driving in Aurora with a red

bandana hanging from his rearview mirror. This was so, the trial court reasoned, even

though the officers had "information" that Mendoza was somehow "affiliated" with a gang.

Finally, having concluded that the questioning was not justified based on either the purpose

of the stop or a reasonable suspicion of additional criminal activity, the trial court concluded

that the questioning both impermissibly prolonged the traffic stop and changed its

fundamental nature. See Gonzalez, 204 Ill. 2d at 235. Therefore, the trial court found that

a fourth amendment violation had occurred. Since the gun in Mendoza's car was not

discovered until the police violated the fourth amendment, the trial court found that the gun

would not have been discovered absent the violation. Accordingly, the trial court granted

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Mendoza's motion to suppress. See Winsett, 153 Ill. 2d at 341. The State appeals that

decision.

II. ANALYSIS

A. Standard of Review

Review of a trial court's ruling on a motion to suppress presents a mixed question of

law and fact. People v. Jones, 215 Ill. 2d 261, 267 (2005). On the fact side of the analysis,

we uphold the trial court's findings unless they are against the manifest weight of the

evidence. People v. Pitman, 211 Ill. 2d 502, 512 (2004). On the legal side, we review de

novo the trial court's ultimate conclusion as to whether the evidence should have been

suppressed. People v. Sorenson, 196 Ill. 2d 425, 431 (2001).

Here, the State correctly points out that the trial court made two erroneous factual

findings. Specifically, as footnoted in part IA above, the trial court erroneously found that

the officers did not suspect that the bandana hanging from Mendoza's rearview mirror

obstructed his view, and that, prior to questioning Mendoza about illegal items or asking to

search his car, Investigator Weber asked Mendoza to step out of his car. In fact, the

officers' testimony, which was the only evidence before the trial court, showed just the

opposite--that is, they suspected that the bandana obstructed Mendoza's view, and

Investigator Weber did not, at least at that point, ask Mendoza to step out of the car. Thus,

the trial court's factual findings to the contrary were against the manifest weight of the

evidence. Consequently, we reject them. Pitman, 211 Ill. 2d at 512.

However, we also reject the State's argument that these factual mistakes were

material. Additionally, we reject the State's argument that, assuming these mistakes were

material, reversal must automatically follow.

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First, contrary to the State's argument, the trial court's factual mistakes were not

material. With regard to the suspected bandana obstruction, the trial court did not hold

that, because the bandana did not obstruct Mendoza's view, the officers' stopping of

Mendoza was improper. To the contrary, the trial court recognized that, based on

Mendoza's tinted rear license plate cover, the officers had a constitutional justification for

stopping Mendoza, bandana obstruction or no. See 625 ILCS 5/3--413(b) (West 2002). As

the trial court put it, "the officers had a reason to stop the vehicle and that comes from the

tinted license plate." See Whren v. United States, 517 U.S. 806, 810, 135 L. Ed. 2d 89, 95,

116 S. Ct. 1769, 1772 (1996) (stating that, "[a]s a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation has occurred"); see also

Gonzalez, 204 Ill. 2d at 227-28 (stating that a traffic stop is constitutional if it is based on

reasonable suspicion or probable cause to believe the traffic laws have been violated).

Having recognized as much, the trial court granted the motion to suppress not because it

believed the stop was improper, but because it believed what occurred after the stop was

improper. Thus, the trial court's mistake about the bandana was not material to its

decision.

Neither was the trial court's mistaken finding that, before questioning Mendoza,

Investigator Weber asked him to get out of his car. The trial court granted the motion to

suppress not because it believed that this occurred, but because, as detailed in part IB

above, it believed that the questioning itself was constitutionally impermissible. 4 Thus,

neither of the trial court's factual mistakes was material.

4
There is no dispute that, during a lawful traffic stop, police officers may order the

driver out of his or her vehicle. Sorenson, 196 Ill. 2d at 433 (noting that "it is well established

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In an effort to get around this conclusion, the State relies on People v. Brodeur, 189 Ill. App. 3d

936 (1989). There, this court reversed the trial court's judgment that there had not been probable cause

to arrest the defendant for driving under the influence. In the trial court, a police officer had testified that, prior

to arresting the defendant, he observed that she had bloodshot eyes, slurred speech, and smelled of alcohol.

Brodeur, 189 Ill. App. 3d at 938. Although the officer's testimony was uncontradicted, the trial court

found that the officer had not observed any indicia of drunkenness until after he arrested the defendant. Brodeur,

189 Ill. App. 3d at 939-40. Because this factual mistake led directly to the trial court's legal

conclusion that the officer lacked probable cause for the arrest, this factual mistake was clearly material to the

trial court's decision.

that following a lawful traffic stop, police may, as a matter of course, order the driver and any passengers out of

the vehicle pending completion of the stop without violating the protections of the fourth amendment"); People v.

Staple, 345 Ill. App. 3d 814, 820 (2004) (same). Nothing in the record indicates that the

trial court failed to grasp this basic legal concept.

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Brodeur is of no help to the State here. To begin with, Brodeur did not even involve a motion to

suppress. And, more importantly, the trial court's mistake in Brodeur was material to its conclusion that

probable cause did not exist. Here, by contrast, the trial court's factual mistakes were not material.

Accordingly, they do not require reversal.

Second, even if the trial court's factual mistakes were material, reversal would not

necessarily follow. It is well settled that we may affirm the trial court's decision on any basis

called for by the record. See People v. Greco, 204 Ill. 2d 400, 414 (2003); People v.

Cleveland, 342 Ill. App. 3d 912, 915 (2003). Moreover, we may do so regardless of

whether the trial court's reasoning was correct. See Toia v. People, 333 Ill. App. 3d 523,

527 (2002). This is because of the "long-standing principle that 'it is not the trial court's reasoning which

is the subject of this court's review, but, rather, its judgment.' " Cleveland, 342 Ill. App. 3d at 915,

quoting People v. Norks, 137 Ill. App. 3d 1078, 1082 (1985). This principle manifests itself in

the applicable standard of review, under which we first review the trial court's factual findings, and then review de

novo the trial court's legal conclusion in light of the correct facts. Thus, a trial court's making material mistakes

of fact does not inevitably lead to its decision being reversed.

In sum, the vast majority of the trial court's factual findings were correct, but the trial court did make

two factual findings that were against the manifest weight of the evidence. We reject both of those findings.

Pitman, 211 Ill. 2d at 512. However, contrary to the State's suggestion, this does not mean that we must

reject the trial court's ultimate legal conclusion. Rather, having ascertained the correct facts, we review the trial

court's legal conclusion de novo. Sorenson, 196 Ill. 2d at 431.

B. The Proper Framework for Our Analysis

Both the parties and the trial court analyzed the actions of the police under Gonzalez. In Gonzalez, the

supreme court began by noting that a traffic stop is a seizure, and, as such, it must be carried out in a manner

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consistent with the fourth amendment's protection against unreasonable search and seizure. Gonzalez, 204

Ill. 2d at 225-26. As discussed in part IB above, the Gonzalez court set out an analytical framework

for courts to use in determining whether police questioning during a traffic stop seizure is consistent with those

protections. Gonzalez, 204 Ill. 2d at 235. In particular, the court must first determine whether the

initial stop passes constitutional muster. Gonzalez, 204 Ill. 2d at 228-29. If it does, the court must

then determine whether police questioning during the stop exceeded the constitutionally permissible scope of the

stop. Gonzalez, 204 Ill. 2d at 229. To do so, the court inquires whether, assuming the questioning was

not related to the initial purpose of the stop or supported by a reasonable suspicion of additional criminal activity,

the questioning either changed the fundamental nature of the stop or impermissibly prolonged its duration, or both.

Gonzalez, 204 Ill. 2d at 235.

By its terms, the Gonzalez analysis cannot apply to a traffic stop that has ended--after all, how can a

traffic stop be impermissibly prolonged if it is already over? According to the supreme court, a traffic stop

seizure ends when the police issue either a warning or a traffic ticket to the driver and return his or her

documentation (e.g., his or her insurance information and driver's license). See People v. Brownlee, 186 Ill.

2d 501, 520 (1999). At that point, the driver is no longer seized. Thus, if police questioning occurs

after a traffic stop has ended, the constitutionality of that questioning cannot be analyzed under Gonzalez. See

People v. Bunch, 207 Ill. 2d 7, 31 (2003) (Thomas, J., dissenting) ("Because the [traffic] stop in

this particular case ended vis-a-vis defendant *** there is no need to continue with a Gonzalez analysis under the

circumstances presented here"). Instead, the court must inquire whether that questioning amounted to a second

seizure. See Brownlee, 186 Ill. 2d at 517 (inquiring whether police questioning following the conclusion of

a traffic stop amounted to a seizure); People v. Goeking, 335 Ill. App. 3d 321, 323-24

(2002) (same). The questioning amounts to a seizure if, in light of the circumstances, a reasonable person

would not feel free to leave. Brownlee, 186 Ill. 2d at 517, quoting United States v. Mendenhall, 446

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U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). If a

seizure occurs, and if the police lack a constitutional justification for that seizure, then the fourth amendment has

been violated. See Brownlee, 186 Ill. 2d at 518, 520.

Here, the trial court considered the constitutionality of Investigator Weber's asking Mendoza if he had

anything illegal in his car and if he would consent to a search of the car. Investigator Weber put these questions

to Mendoza after Investigator Weber had returned Mendoza's license and insurance information and explained

that no citation would be issued. That is to say, Investigator Weber put these questions to Mendoza after the

traffic stop seizure had ended. See Brownlee, 186 Ill. 2d at 520. Therefore, the constitutionality of

those questions cannot be measured with Gonzalez. The trial court and the parties were mistaken to believe

otherwise.

That mistake is understandable given the confusion that surrounds this issue. For example, in Bunch, a

police officer conducted a traffic stop of a vehicle in which the defendant was a passenger. Bunch, 207 Ill.

2d at 9. The officer arrested the driver for driving without a license; then the officer ordered the defendant out

of the car. After the defendant exited the vehicle, the officer asked him: " 'What's your name? Where [sic]

you coming from?' " Bunch, 207 Ill. 2d at 10. While questioning the defendant, the officer shined his

flashlight in the defendant's face. The officer observed in the defendant's mouth a clear plastic item, which turned

out to be a bag of heroin. Bunch, 207 Ill. 2d at 10-11. At that point, the defendant was arrested and

charged with possession of a controlled substance.

He filed a motion to suppress, which the trial court denied. On appeal, the appellate court reversed, and

a divided supreme court affirmed the appellate court's judgment. Although the majority stated that the questioning

of the defendant occurred "after the purpose of the stop was concluded" (emphasis in original) (Bunch, 207

Ill. 2d at 17), the majority apparently believed that, at the time of the questioning, the stop itself was still

ongoing. That this was the majority's belief is apparent from the fact that, at the beginning of its discussion, the

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majority applied to the defendant's case the Gonzalez analysis (Bunch, 207 Ill. 2d at 15), which, as

discussed above, applies to police conduct only if that conduct occurs during a traffic stop (see Gonzalez, 207

Ill. 2d at 235). Applying Gonzalez, the majority found, among other things, that the officer's questioning of

the defendant had impermissibly prolonged the duration of the traffic stop. Bunch, 207 Ill. 2d at 17. Thus,

the majority concluded that the questioning violated the fourth amendment.

The majority's analysis did not end there, however. After concluding that, under Gonzalez, the officer

had impermissibly prolonged the traffic stop, the majority went on to address the State's argument that "the initial

detention of defendant, incidental to the stop of the vehicle, ended when defendant exited the car" and that what

followed "was a consensual conversation between defendant and the officer." Bunch, 207 Ill. 2d at 17.

The majority stated that it "disagree[d]" with this argument. Bunch, 207 Ill. 2d at 17. But it did not state

what part it disagreed with. That is, the majority did not explain whether it rejected the State's contention that

the traffic stop had ended, or whether it accepted that contention and rejected the State's contention that a

consensual encounter followed, or whether it rejected both of those contentions.

Apparently, however, the majority accepted the State's contention that the traffic stop had ended before

the questioning began. This is apparent because the majority went on to consider the State's follow-up

contention, i.e., whether, at the time of the questioning, the defendant was engaged in a consensual encounter

with the officer. Bunch, 207 Ill. 2d at 17-19. Applying Brownlee--a case that involved an encounter

following the end of a traffic stop--the majority concluded that a reasonable person in the defendant's position

would not have felt free to leave, and, therefore, the encounter was not consensual. Rather, it was a seizure.

See Bunch, 207 Ill. 2d at 19. Of course this line of analysis makes sense only if, at the time of the

officer's questioning of the defendant, the traffic stop had already ended. This is because, even casting aside the

fact that Brownlee involved an after-traffic-stop encounter, there is the well-established rule that a traffic stop

is a seizure (Whren, 517 U.S. at 809-10, 135 L. Ed. 2d at 95, 116 S. Ct. at 1772). If

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the traffic stop were ongoing at the time of the questioning, there would have been no need to consider whether a

reasonable person in the defendant's position would have felt free to leave, that is, whether the defendant was

seized. One cannot be seized and unseized at the same time. The Bunch majority concluded that the defendant

had been seized. Because that seizure was not supported by reasonable suspicion, the majority found that the

officer's conduct violated the fourth amendment. See Bunch, 207 Ill. 2d at 20.

Justice Thomas dissented. He stated that the majority's "summary conclusion [that the traffic stop was

impermissibly prolonged] begs the real issue in this case--whether the initial seizure at the time of the stop had

dissipated into a nonseizure" when the officer started asking questions of the defendant. Bunch, 207 Ill. 2d

at 30 (Thomas, J., dissenting). Because Justice Thomas concluded that it had, he further concluded that the

majority erred in continuing to apply the Gonzalez framework after that point. Justice Thomas stated that, once

the encounter dissipated into a nonseizure, the question became whether what followed was a second seizure or a

consensual encounter. Bunch, 207 Ill. 2d at 31 (Thomas, J., dissenting). Justice Thomas concluded

that it was a consensual encounter. Accordingly, he would have reversed the granting of the motion to suppress.

See Bunch, 207 Ill. 2d at 33 (Thomas, J., dissenting).

In the wake of the supreme court's decision in Bunch, the appellate court has had difficulty determining

when to apply Gonzalez. In some cases, the appellate court has properly applied Gonzalez only if, at the time of

the challenged police questioning, the traffic stop was still ongoing. See People v. Sloup, 359 Ill. App. 3d

841 (2005); People v. Matthews, 357 Ill. App. 3d 1062 (2005); Parra, 352 Ill. App. 3d 584.

In other cases, however, the appellate court has applied Gonzalez even though the challenged questioning

occurred after the stop had ended. See People v. Heather, 351 Ill. App. 3d 1052 (2004); People v. Hall,

351 Ill. App. 3d 501 (2004); People v. Roberts, 349 Ill. App. 3d 972 (2004). And, in at least

one case involving a post-traffic-stop encounter, the appellate court has set out the Gonzalez framework and

then, without applying all of that framework, concluded that, because a reasonable person in the defendant's

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position would have felt free to leave, no seizure occurred. See People v. Ramsey, 362 Ill. App. 3d

610, 617 (2005). In short, following Bunch, it has been hard to figure out when Gonzalez applies.

That said, we are sure it does not apply here. The trial court found improper Investigator Weber's

asking Mendoza if he had anything illegal in his car and if the police could search it. Investigator Weber put

these questions to Mendoza after returning his insurance information and driver's license and explaining that no

citation would be issued. According to the supreme court, these actions ended the traffic stop. Brownlee,

186 Ill. 2d at 520. And, as explained, Gonzalez cannot apply after a traffic stop has ended.

Of course one might argue that Bunch requires us to apply Gonzalez even though the traffic stop here

had ended before the questioning began. But we would disagree. To be sure, the Bunch majority appeared to

conclude both that the traffic stop had not ended--and that, therefore, Gonzalez applied--and that the traffic

stop had ended and the question was whether the defendant was reseized. However, we are unwilling to ascribe

such an internally contradictory thinking to the Bunch majority. Instead, as we see it, the Bunch majority first

concluded that, while the purpose of the traffic stop had ended, the traffic stop itself had not. Bunch, 207 Ill.

2d at 17. Accordingly, it applied Gonzalez. Bunch, 207 Ill. 2d at 15. Then, in response to the State's

argument that the traffic stop itself had ended and had been followed by a consensual encounter, the Bunch

majority concluded that, even assuming, arguendo, the traffic stop had ended, the officer's actions still would have

violated the fourth amendment. This was so, the majority reasoned, because the officer's actions would have

constituted a second seizure. Bunch, 207 Ill. 2d at 19.

Here, there is no dispute: the questioning of Mendoza occurred after his documents had been returned

and after he was informed that no citation would be issued. Because this means the questioning occurred after

the traffic stop had ended, the inquiry is not whether the questioning was proper under Gonzalez. Instead, the

inquiry is: (1) did Investigator Weber's questioning of Mendoza following the completion of the traffic stop

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amount to a second seizure of Mendoza? If so, (2) was the reseizure constitutionally justified? We turn

now to tackle this inquiry.

C. Applying the Proper Analysis to this Case

The first question is whether Investigator Weber's post-traffic-stop questioning of Mendoza amounted

to a seizure. A seizure occurs " 'when, by means of physical force or a show of authority,' [a] person's

'freedom of movement is restrained.' " Brownlee, 186 Ill. 2d at 517, quoting Mendenhall, 446 U.S.

at 553, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. As noted in part IIB above, to determine

whether a seizure has occurred, we must consider whether " 'in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to leave.' " Brownlee, 186 Ill. 2d at

517, quoting Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.

This is a practical, realistic inquiry, and, in undertaking it, we must be guided by common sense. See People v.

Luedemann, 357 Ill. App. 3d 411, 421 (2005).

Here, the circumstances were as follows. It was late at night and two officers had stopped Mendoza.

After taking his insurance information and driver's license, the officers returned to their vehicle; then they again

approached Mendoza's car. They did so using a flanking maneuver. Both officers were dressed in dark, special

operations uniforms and their guns were visible. Investigator Weber returned Mendoza's documents and said no

ticket would be issued, but no sooner had he done so than he began asking about illegal items in Mendoza's car.

When Mendoza told Investigator Weber that there was nothing illegal in the car, Investigator Weber did not

accept this answer; he asked to search the car. Meanwhile, Investigator Wiencek shined his flashlight into the

car. Taking a commonsense view of these circumstances, we cannot say that a reasonable person in Mendoza's

position would have felt free to leave. See Brownlee, 186 Ill. 2d at 517; Luedemann, 357 Ill. App.

3d at 421. Instead, a "reasonable person in this *** situation would likely conclude that, if he or she drove

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away, then the two officers would soon be in hot pursuit." Brownlee, 186 Ill. 2d at 520. Thus,

Mendoza was seized.

We find support for this conclusion in our decision in Goeking, 335 Ill. App. 3d 321. There, a

police officer conducted a traffic stop of the defendant's car after the defendant failed to signal before pulling

away from a curb. Because the defendant's eyes were "glossy " and "bloodshot," the officer suspected that she

might be under the influence of alcohol. Goeking, 335 Ill. App. 3d at 322. To investigate this

possibility, the officer had the defendant step out of the vehicle, but the officer soon concluded that the defendant

was not intoxicated and issued her a verbal warning and told her she could go. Then, as she started towards her

car, the officer asked her if she had anything illegal in the car. Specifically, the officer asked if she had any "

'knives, guns, drugs, dead bodies, grenades, rocket launchers, anything that shouldn't be in the vehicle.' "

Goeking, 335 Ill. App. 3d at 322. The defendant said no, and the officer asked for permission to

search the car. The defendant gave permission, and the officer conducted a search of the car, which turned up a

pen and a socket wrench that both contained drug residue. Goeking, 335 Ill. App. 3d at 322-23.

We found that, prior to giving her consent to search, the defendant had been seized. In doing so, we reasoned

that under the circumstances a reasonable person in the defendant's position would not have felt free to leave.

Goeking, 335 Ill. App. 3d at 324. Accordingly, we affirmed the decision of the trial court, which had

suppressed the items recovered from the defendant's car.

The same result is proper here. As discussed above, the officers' conduct would have communicated to

a reasonable person in Mendoza's position that he or she was not free to leave. Thus, here, as in Goeking, a

seizure occurred.

Indeed, two aspects of this case make it even more compelling than Goeking. First, here, unlike in

Goeking, Investigator Weber did not tell Mendoza that he was free to leave before pursuing further

questioning. Although an encounter may be consensual absent a driver's being told that he or she is free to leave

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(see Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996)), this

is still a factor to consider in determining whether a seizure has occurred (see People v. LaPoint, 353 Ill.

App. 3d 328, 333 (2004)). For this reason, we find this case even more compelling than

Goeking. Second, here, unlike in Goeking, there was more than one officer present. The presence of multiple

officers weighs against a finding that a reasonable person in the defendant's position would have felt free to leave.

See Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. That is,

it weighs in favor of a finding that the defendant was seized. For this reason too, we find this case even more

compelling than Goeking.

The presence of multiple officers distinguishes this case from Ramsey, 362 Ill. App. 3d 610. In

that case, a divided panel of the Fourth District found that an officer's post-traffic-stop questioning of the

defendant did not amount to a seizure. However, in Ramsey, unlike in the present case, only one officer was

involved. And, in finding that no seizure had occurred, the court specifically noted this fact. See Ramsey,

362 Ill. App. 3d at 620. Therefore, Ramsey does not undermine the conclusion that a seizure occurred

here.

Having concluded that a seizure occurred, we must consider whether it was justified. Under the fourth

amendment, a seizure is justified if it is reasonable. See Brownlee, 186 Ill. 2d at 517-18.

Reasonableness generally requires a warrant supported by probable cause. People v. Love, 199 Ill. 2d

269, 275 (2002). However, there are exceptions to the warrant requirement. One exception allows

police to seize an individual if the officers can point to specific, articulable facts that, when combined with the

rational inferences derived from those facts, provide reasonable suspicion that the person seized has committed or

is about to commit a crime. Village of Mundelein v. Thompson, 341 Ill. App. 3d 842, 848

(2003). The facts supporting reasonable suspicion do not need to constitute probable cause. People v.

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Holland, 356 Ill. App. 3d 150, 154 (2005). However, they must lead to more than a mere

hunch. People v. Lampitok, 207 Ill. 2d 231, 255 (2003).

The State argues that the post-traffic-stop questioning of Mendoza--that is, the second seizure--

was justified because the officers reasonably suspected that Mendoza had something illegal in his car. The

State bases this conclusion on the following facts: (1) Mendoza was caught driving in Aurora; (2) gang

activity, including shootings, had occurred in Aurora; (3) Mendoza had in his car a red bandana, which might

have been a signal of gang affiliation; and (4) the officers had "information"--including the fact that Mendoza

had previously been seen in the same place as gang members--that Mendoza was "affiliated" with a gang.

Based on these facts, the State argues that the officers had reasonable suspicion. Thus, the State argues, the

seizure was justified.

The State's argument is without merit. To begin with, the fact that Aurora is an area where gang

activity has occurred cannot possibly form the basis for reasonable suspicion; if it could, the police would be

justified in seizing on suspicion of being involved in illegal activity anyone seen driving in the city of Aurora. This

is obviously unacceptable. For its part, the State has pointed to no case holding that an individual's mere

presence in a city gives police reasonable suspicion to believe that the individual is up to something illegal. Nor

could it. See Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d 570, 576, 120 S.

Ct. 673, 676 (2000) ("An individual's presence in an area of expected criminal activity, standing

alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime").

Therefore, Mendoza's presence in Aurora did not give the officers a reasonable suspicion of criminal activity.

The fact that Mendoza had hanging from his rearview mirror a red bandana changes nothing; plenty of non-gang

members hang things from their rearview mirrors, and some of these items are bound to be red. Of course, the

State argues that, in this case, the officers actually had "information" that Mendoza was a gang "affiliate."

This does not alter our conclusion. As much as it might be socially distasteful to the average citizen, a person's

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hanging out with gang members is not a crime. Unless, of course, that person is hanging out with gang members

while they are committing a crime, but there is no evidence that the police believed that to be the case here. In

short, the officers had no information that gave them reasonable suspicion of some specific criminal activity.

Accordingly, their seizure of Mendoza was improper. See Lampitok, 207 Ill. 2d at 255.

We find support for this conclusion in Parra, which, although it properly addressed the reasonable

suspicion question in the context of a Gonzalez analysis, provides guidance on this point. In Parra, a police

officer conducted a vehicle stop of the defendant. The stop occurred in "an area of high gang activity." Parra,

352 Ill. App. 3d at 586. When the officer made contact with the defendant, the officer saw in the

defendant's wallet a firearm owner's identification (FOID) card and in his glove compartment several latex

gloves. The officer was aware that latex gloves had been used in recent gang crimes involving handguns. Parra,

352 Ill. App. 3d at 585-86. Based on this information, the State argued that the officer had a

reasonable suspicion of criminal activity. We disagreed. In doing so, we noted that law-abiding citizens often

carry FOID cards and that latex gloves are facially innocuous. See Parra, 352 Ill. App. 3d at 588.

Likewise, in the present case, the red bandana in Mendoza's car was facially innocuous. So, too, is

the fact that he was stopped while driving in Aurora. At the same time, as the State points out, here, unlike in

Parra, the officers had "information" linking Mendoza to a gang. However, as we have already explained, that

is not a big enough hook on which to hang reasonable suspicion. Thus, here, as in Parra, the officers did not

have reasonable suspicion.

The State makes two unconvincing attempts to distinguish Parra. First, the State argues that, unlike

the latex gloves the officer in Parra saw in the defendant's car, the gun Investigator Wiencek saw in

Mendoza's car was not facially innocuous. The problem with this argument is that Investigator Wiencek did not

see the gun until after Mendoza was seized. Before that, Investigator Wiencek and Investigator Weber saw

only the red bandana, which, like the gloves in Parra, was facially innocuous. Therefore, this argument is

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without merit. Second, the State argues that, unlike in Parra, the officers here said they felt a heightened need

for safety. We agree with the State that this is a distinction between this case and Parra. But it is a

distinction without a difference. Although we recognize the need for officers to take safety precautions when

dealing with the unsavory characters they sometimes encounter on the street, this need alone cannot turn

something that does not amount to reasonable suspicion into something that does. Nor can it justify an intrusion

for which the police do not have a constitutional justification. As we have recently explained:

"[Police safety] is certainly a legitimate concern. It does not, however, immunize from constitutional

scrutiny all actions taken in its name. *** If, in the name of officer safety, an officer chooses to take

certain actions that amount to a seizure, that may be understandable under certain circumstances.

However, if those actions are taken absent some justification for a seizure, the State is not entitled to

utilize their fruits in a criminal prosecution." Luedemann, 357 Ill. App. 3d at 423.

The same is true in this case.

To summarize, because a reasonable person in Mendoza's position would not have felt free to leave

when Investigator Weber continued questioning him after the conclusion of the traffic stop, Mendoza was

seized. That seizure was not supported by reasonable suspicion of criminal activity. And that seizure led directly

to the discovery of the evidence against Mendoza. Thus, the trial court did not err in granting Mendoza's

motion to suppress.

III. CONCLUSION

For the reasons stated, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

GROMETER, P.J., and CALLUM, J., concur.

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